Cumming v WorkCover Queensland [2000] ICQ 49 (2000) 165 QGIG 172

172 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 27 October, 2000 ########################################################################################################################## # INDUSTRIAL COURT OF QUEENSLAND WorkCover Act 1990 – s. 509 – appeal against decision of industrial magistrate Debra Cumming AND WorkCover Queensland (No. C53 of 2000) PRESIDENT HALL 18 October 2000 DECISION The appellant was employed at Jo Jo’s restaurant, Queen Street, Brisbane, for a period of approximately three months. She found the work physically demanding. Her back began to ache. Since her legs ached also, the appellant made the assumption that she was unfit. Over time, her back became worse. She began to experience a burning sensation between the shoulder blades. She experienced hot and cold chills up and down her spine. Her condition eased after she ceased work, but was still sufficiently severe to awaken her at night. The ache across the shoulders was present when she got up in the morning. She sought medical assistance. Whether the suggestion that her employment was at fault came from the general practitioners and physiotherapists whom she consulted, or was volunteered by the appellant as a possible cause, does not emerge from the transcript. In the result, and on medical advice, she took a week off work to see if her back improved. At the end of the week she returned and worked for a day on lighter duties. After the completion of that trial (on 6 June 1997), the appellant did not work at the restaurant again. On 25 June 1997 WorkCover Queensland received an application for compensation dated 19 June 1997. On receipt of the application WorkCover Queensland referred the appellant to an orthopaedic surgeon, Dr James Downes. Dr Downes concluded that the appellant suffered from fibrositis, a condition which comes and goes and to which condition her employment at the restaurant had made no contribution. It may be conceded that when Dr Downes gave evidence to the Industrial Magistrates Court on 22 June 2000, he expressed the view that if the appellant continued to suffer from the problem across her shoulders which she had described to him at the consultation of 16 October 1997 he would, if he had been the treating doctor, have looked for another possible cause. It was Dr Downes’ view that the fibrositis should have gone by then. The concession is of little assistance to the appellant. Speculation that an undiagnosed condition may be present fall’s well short of establishing the presence of an injury which arose out of or in the course of the appellant’s employment at Jo Jo’s restaurant. The circumstance that Dr Downes was prepared to agree in cross- examination that because the pain started when the appellant was working at Jo Jo’s restaurant the employment “could” have been a factor causing or contributing to the (unknown) condition takes the matter no further. By a letter dated 9 December 1997 WorkCover Queensland advised the appellant that her application for compensation had been unsuccessful. The appellant sought a review. In support of her review she attended upon another orthopaedic surgeon, Dr Robert Cooke who (relevantly) concluded that she suffered from “right paracentral C4/5 and C5/6 disc protrusion with no neural impingement”. Dr Cooke does not, of course, assert that the condition which was present in May 1998 was present when the appellant worked at Jo Jo’s restaurant. He was in no position to do so. He was in a position to express an opinion about the matter, and he did. Rather cautiously, I think, he said that the symptoms from which the appellant then claimed to have been suffering were consistent with the condition being present at that time. By a letter dated 21 May 1998 the Statutory Review Unit confirmed the decision to reject the appellant’s claim for compensation. The appellant appealed to the Industrial Magistrate’s Court. On 31 July 2000 the Industrial Magistrate dismissed the appeal. The appellant now appeals to this Court. There is no fresh evidence. The appeal is by way of a re-hearing on the evidence before the Industrial Magistrate. The Industrial Magistrate of course had the advantage of hearing Dr Downes on the telephone, and of hearing and seeing the appellant and Dr Cooke. However, nothing seems to turn on that advantage. The Industrial Magistrate has said nothing about credibility. In those circumstances, it seems to me that I should proceed on the basis that all witnesses were credible. It was not a case where His Worship formed a view about the reliability of the views expressed by Dr Downes and by Dr Cooke, compare Pleming v Workers’ Compensation Board of Queensland (1996) 152 QGIG 1181 at 1183 per de Jersey, President. In those circumstances, I am just as favourably placed as the Industrial Magistrate to draw inferences from the evidence, compare Warren v Coombes (1979) 142 CLR 531, WorkCover Queensland v Alcorn 156 QGIG 568 at 568 per de Jersey, President, and Priddle v WorkCover Queensland 162 QGIG 170 at 171 per Hall, President. The difficulty confronting the Industrial Magistrate is clear enough. There was a chasm between the evidence of Dr Downes and Dr Cooke. It was not a case of Dr Downes diagnosing one condition in October of 1997 and of Dr Cooke examining the same patient and diagnosing a different condition in May 1998. As the cross-examination reveals, the differences of opinion descended to matters of basic anatomy. Materially, Dr Cooke was of the opinion that the condition diagnosed by Dr Downes, viz fibrositis, did not exist. Dr Cooke accepted that inflammation might exist, but insisted that inflammation was always caused by something and that it was the cause of the inflammation which was the condition. The only concession which Dr Cooke was -- 1 of 3 -- 27 October , 2000 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 173 prepared to grant was that whilst there was no tenderness when he examined the appellant in May 1998 tenderness and inflammation may have been present when Dr Downes examined the appellant in October 1997. (Dr Cooke was silent upon the question whether any tenderness or inflammation in October 1998 might have been caused by the disc protrusion which he located in May of 1998. Dr Downes was equally forthright. Having explained that protrusions of the type identified by Dr Cooke might have been expected in a woman of the appellant’s age and might or might not have been accompanied by pain, Dr Downes went on to express the opinion that if the disc protrusions at C4/5 and C5/6 had pressed on the nerve the appellant would have experienced pins and needles in the (relevant) arm whilst, if the protrusions did not press on the nerve, any discomfort would have been felt as an ache at the base of the neck. If caused by disc protrusion, the pain described by the appellant would have been attributable to protrusion at T2 to T7. (Dr Cooke, I should add, flatly rejected that proposition when it was put to him in cross-examination.) The Industrial Magistrate made a finding which, if correct, would go some way towards a conclusion that Dr Cooke should be preferred to Dr Downes. His Worship found:– “This doctor [Dr Downes] also conceded, in effect, that if Dr Cooke had seen Ms Cumming on some 5 different occasions and had the benefit of a CT Scan and a MRI Scan then he would be in a better position to observe her and make a diagnosis.”. Regrettably, the evidence does not support the finding. Dr Downes did concede that because he had seen the appellant once and Dr Cooke had seen her on some 5 occasions, Dr Cooke had a better opportunity to make an accurate diagnosis. But Dr Downes did not accept that the CT Scan and the MRI Scan gave Dr Cooke an advantage. In Dr Downes’ view, the scans would locate bulges. The skill lay in determining whether particular bouts of pain might be linked to the bulges. The case was admittedly a difficult one. I have sympathy for the Industrial Magistrate. However, I do not accept the way in which the Industrial Magistrate dealt with the matter. In the penultimate paragraph His Worship observed:– “I have considered the whole of the evidence, submissions, reported cases to which I have been referred and relevant legislation. The onus lies with the Appellant to prove on the balance of probabilities that her employment at Jo. Jo’s restaurant was the major significant factor that caused her injury that she claims for. I can find no justification to reject the diagnosis made by Dr Downes on 16/10/1997 and only accept the diagnosis of Dr. Cooke which was not formed until he first saw M/s Cumming on 3/3/1998. Whilst their independent diagnosis are clearly at odds with each other, I point out that they were made almost 5 months apart, and considering all the evidence before me, and the varying activities carried out by the Appellant in the interim period, on the balance of probabilities, I am unable to accept Dr. Cooke’s diagnosis and totally reject Dr. Downes’, which I would have to do for the appellant to satisfy her required onus. Whilst I accept that M/s Cumming had the specific injury as diagnosed by Dr. Cooke on 3/3/1998 at that time, on the balance of probabilities, I cannot be satisfied that such injury existed on 10/6/1997 as M/s Cumming alleges in her claim (Exhibit 1) due to the evidence of Dr. Downes and his diagnosis on 16/10/1997.”. It was not a case which might be resolved by accepting the diagnosis of each of the two doctors. The inconsistencies in the evidence of the two doctors is such that the matter cannot be resolved by finding that Dr Downes found that which was there to be found in October 1997, whilst Dr Cooke found that which was there to be found in May 1998. If the case had been of the type referred to in Pleming, op cit, one might have preferred one or other of Dr Downes or Dr Cooke. But I do not see how, on that basis, one might accept Dr Downes’ evidence about October 1997 whilst rejecting his opinion about whether the protrusions located by Dr Cooke were capable of causing the pain suffered by the appellant. Equally, on the Pleming, op cit, approach, it would be difficult to accept that Dr Cooke’s diagnoses of May 1998 was correct whilst his opinion about fibrositis was incorrect. There is the additional difficulty that on the approach taken by the Industrial Magistrate it is necessary to explain how a condition which was present in May 1998 was not present in October 1997. His Worship does that by referring to “the varying activities carried out by the appellant in the interim period”. I rather suspect that that refers back to an earlier finding:– “. . . When he (Dr Cooke) reviewed her on 11/9/1998 Ms Cumming reported that her pain was worse, troubling her continuously, like something pulling and burning. That she had been sitting at a computer for up to 18 hours per day and found that using the computer tended to aggravate her symptoms. One would reasonably think, I would suggest, that even if one was 100% healthy, that such an arduous task would create problems by just having to maintain the correct posture for such a long period.”. An appeal to an Industrial Magistrate pursuant to s. 498 is not an oral examination for a medical specialist seeking further professional recognition. The Industrial Magistrate is to determine whether the claimant has suffered an injury as defined at s. 34 as a matter of fact and of law. The Industrial Magistrate is entitled to look at all of the evidence and draw inferences from that evidence based on his understanding on the common course of events. However, the Court does not control the conduct of the trial. If the parties largely draw on the common law history of trial by battle, substituting specialists for champions, it is not appropriate to act on the view taken by the Industrial Magistrate here where it was not put to each of the specialists in order that each might comment upon the accuracy of the view propounded. The omission to take that course is aggravated here by the circumstance that the burden of the appellant’s evidence, and it must be remembered that the appellant was accepted as credible, was that the pain experienced whilst sitting at the computer was revisitation of a pain long-known. All of that said, I have decided to confirm the decision of the Industrial Magistrate. In the absence of any finding by the Industrial Magistrate that having heard Dr Downes and having heard and observed Dr Cooke, His Worship assessed Dr Cooke as more reliable, there is no basis for going behind the opinion of Dr Downes. Certainly, the evidence of Dr Cooke, cautious and restrained as it is, provides no legitimate foundation for going behind the evidence of Dr Downes. To draw the conclusion on Dr Cooke’s evidence that the condition which he diagnosed in May 1998 was present in October 1997 and, indeed, was present earlier still when the appellant was working at Jo Jo’s restaurant, is to draw a conclusion on the basis of Dr Cooke’s evidence which Dr Cooke himself declined to draw. And there is an additional consideration. The “injury”, if any, was suffered after February of 1997. It was necessary for the appellant to establish on the balance of probabilities that the work that she performed at Jo Jo’s restaurant was the major significant factor causing the “injury”, s. 34. Assume that Dr Cooke’s diagnosis is correct, and that the employment at Jo Jo’s either – (a) caused the disc protrusion; or (b) caused an existing but asymptomatic deteriorating back to become painful, there is no material to support a conclusion that the employment was the major significant factor causing the “injury”. There was evidence that the appellant had secured employment in the hospitality industry over a period of four to four and a-half years performing tasks comparable to those which she performed at Jo Jo’s restaurant. If the task performed at Jo Jo’s restaurant, in accumulative way over a period of three months, caused or brought on the injury why, as Dr Downes noted in his written opinion, would the earlier employment for a period in excess of four years be thought not to have made a contribution? I dismiss the appeal. -- 2 of 3 -- 174 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 27 October, 2000 The matter of costs is a difficult one. At the end of the day there is a discretion about costs. After agonising somewhat I have concluded that an appellant who failed, but whose attack upon the reasoning of the Industrial Magistrate succeeded, should not have to bear the burden of costs. There is no order as to costs. Dated this eighteenth day of October, 2000. D.R. HALL, President. Released: 18 October 2000 Appearances:– Mr P. Goodwin instructed by Hall Payne Solicitors for the appellant. Mr P. Major instructed by WorkCover Queensland for the respondent. -- 3 of 3 --