Bulloch v WorkCover Queensland [2000] ICQ 18 (2000) 164 QGIG 140

140 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 9 June, 2000 ####################################################################################################################### # INDUSTRIAL COURT OF QUEENSLAND WorkCover Queensland Act 1996 – s. 509 – appeal against the decision of industrial magistrate Linda Rae Bulloch AND WorkCover Queensland (No. C52 of 1999) PRESIDENT HALL 25 May 2000 DECISION The appellant, Linda Rae Bulloch, commenced work with the Public Trustee of Queensland in early 1996. She was employed in a general clerical position. Whilst based in the legal department, her duties included very extensive keyboard work and, in particular, typing up recorded information. In or about September 1997 the appellant began to feel a (progressively increasing) pain in the region of her right forearm and right elbow. By the end of September 1997, the pain had increased in her right forearm and had also moved into her wrist and hand. In October 1997 the appellant and her fiance went on a five week overseas trip through Europe via Hong Kong. They were backpacking. The continued pain in her right forearm made it painful for the appellant to lift the backpacks. Her fiance did most of the carrying but in Hong Kong they purchased wheels for the packs so the appellant could tow some of the luggage. Her arm became so sore that it was eventually put in a sling made up from a scarf. After her holiday, on or about 7 November 1997, the appellant returned to work at the Public Trustee. Her forearm was still sore and ultimately she consulted her general practitioner. The general practitioner diagnosed that she was suffering from tendonitis of the right elbow (“tennis elbow”). On 24 November 1997 she made a successful claim under the WorkCover Queensland Act 1996 and was off work for some period of time. On her return she was moved to a clerical position in the wills department. Her work involved counter and clerical work, together with the work of retrieving and filing will documents in large compactus which had to be wound open by hand. The job also involved climbing ladders between the concertina-style shelving and reaching above shoulder height with her right arm forwards and backwards, filing and re-filing will packets. By February of 1998, she was experiencing pain in her right shoulder. She continued to work, but after a review by an occupational therapist, her duties were changed to those of a receptionist. The pain in her arm got worse. Ultimately, she had difficulty in moving her elbow and arm and had to be helped to get dressed. In May of 1998 she ceased work and did not re-commence work for some 5 months. During the interim, she consulted a number of doctors, all of whom seem to have been of the view that she suffered from adhesive capsulitis (“frozen shoulder”). The diagnosis was accepted by both parties before the Industrial Magistrate and on the appeal. On 26 July 1998 WorkCover Queensland stopped all payment to the appellant. The appellant (unsuccessfully) sought to re-open that decision and subsequently requested the matter be referred to the Statutory Review Unit. In November of 1998 she was advised that the review officer had confirmed the decision to cease payment. By the end of the month, she had filed her appeal to the Industrial Magistrate. The Industrial Magistrate rejected that appeal on 25 March 1999. From that decision Ms Bulloch appeals to this Court. Both before the Industrial Magistrate and this Court there has been only one issue, viz whether the appellant’s shoulder condition was a work-related injury. Substantially, the trial was a trial by experts. Two orthopaedic surgeons, Dr White and Dr Morgan, gave evidence there was a direct casual link between the work practices of the appellant and the onset and persistence of the discomfort in her right upper limb. They were of the view that repetitive minor trauma with the arm held in an elevated position was a probable cause of adhesive capsulitis. Each of Drs White and Morgan noticed some muscle wastage. However, Dr Morgan went a step further than Dr White attributing the muscle wastage to the immobilisation of the appellant’s arm whilst she was on holidays. On that analysis, ie minor trauma acting on an arm affected by muscle wastage, the better view would be that the injury to the shoulder was secondary to the injury to the elbow. Dr Downes, also an orthopaedic surgeon, took quite a different view. He accepted that the appellant was an entirely honest person, and that she indeed suffered from a severe and advanced frozen shoulder which was still in the active phase. However, in the absence of trauma, Dr Downes was of the view that frozen shoulder was a spontaneous condition. In his view the activities of the appellant in filing and retrieving wills involved no more than normal movement of the arms, and could not be considered trauma capable of causing adhesive capsulitis. Dr Downes took the matter further, and gave it as his view that the appellant’s elbow injury was not an injury to the elbow at all, but simply a case of the frozen shoulder first manifesting itself as a pain in the elbow. The Industrial Magistrate preferred the evidence of Dr Downes. It is convenient to re-produce the passage in His Worship’s reasoning which was the subject of attack on the appeal: “In ‘Orthopaedic Knowledge Update’, John W Frymoyer, 1993 it states ‘the rotator cuff can become thickened as a result of repetitive micro trauma or, less commonly, a single isolated traumatic event. Calcium deposits may be present and inflammation can result in fibrosis and scarring. Soft tissue structural causes incluse [sic] bursal abnormalities, as a result of inflammation, trauma, or ageing.’ In ‘Magnetic Resonance Imaging in Orthopaedics and Sports Medicine’, Stroller, 1997, when discussing the causes of the painful shoulder impingement syndrome purpose ‘. . . mechanical wear, acute trauma, or repetitive micro trauma from overuse (this latter is especially common in athletes who use a throwing motion or work activities that emphasise over-hand motions)’. These latter two pieces of literature refer to rotator cuff impairment. That is not the case here, the applicant had a frozen shoulder. She initially suffered a painful forearm and elbow from work practices and was compensated for same. She then developed pain in the upper arm whilst filing Will documents. -- 1 of 2 -- 9 June, 2000 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 141 I find the applicant was on light duties at the time which included filing the documents. There is no evidence of any trauma occurring nor any readily recognisable precipitation events as previously mentioned. She did extend her arm in a elevated position when filing the Will documents but this was normal use of her arm Also the suggested repetitive minor trauma resulting from her filing duties was related to a right rotator cuff syndrome. I am not satisfied that there is sufficient evidence to establish prolonged immobility of the shoulder secondary to her tennis elbow condition. There is evidence the applicant had her arm in a sling whist in Paris during her holidays but it is not known if it was more than a few days.”. It cannot be disputed that there is a difference between adhesive capsulitis and rotator cuff impairment. Nor may it be disputed that the academic literature which was put in before the Industrial Magistrate related to rotator cuff impairment rather than adhesive capsulitis. However, if His Worship meant to indicate that Drs White and Morgan had not taken that point – and I do not think that he did – then His Worship was simply wrong on the evidence. On any fair reading of the transcript it is apparent that Drs White and Morgan were aware of the distinction between rotator cuff impairment and adhesive capsulitis and that the literature referred to the former condition only. The point which the surgeons sought to make was that in their view what was true of rotator cuff impairment was probably true of adhesive capsulitis also. If His Worship intended to indicate that the views of experts should not be accepted unless supported by articles and referee journals, in my view His Worship took rather too narrow a view of the evidence which may be accepted from an expert, compare X and Y (by her tutor X) v PAL and Others (1991) 23 NSWLR 26 at 33 per Mahoney JA. Regrettably, I differ from His Worship also on the proposition that when in the wills department the applicant was on light duties. It is certainly true that she was supposed to return to work on light duties. But unlike the subsequent move to the position of receptionist, it was not a supervised return to work. In evidence, the appellant described her work as follows:– “It entailed – the Wills were kept in strong rooms and they have large compendiums that sliding ceiling to floor and you have to climb up ladders and get them at the top shelves and the different shelves, and you have to wind a large lever to move them along, and they’re quite old and it takes quite a bit of strength to get that going, and I tried to use my left hand as much as I could. I was – the very first time I was up a ladder filing Will packets and at that stage I devised a method of trying to file both sides at the same time so I’d take, you know, I’d take up the box so I knew that, well, I’d have some for that side and” – presumably she says something along the lines of “some for that side” – “which is behind me as well, and I’d reach around to file like that, and that’s the very first time I felt this pain in the upper arm.”. Each of Drs White and Morgan, being aware of the work which the appellant was performing, gave evidence that it was capable of bringing on adhesive capsulitis. It may be conceded, as is contended by Mr Rhead of Counsel for WorkCover Queensland, that the appellant was visiting her doctor and claims to have discussed with her doctor the work which she was performing in the wills department. However, it is clear from the medical certificates that the treating doctor’s attention was focussed on the elbow and the problem of lifting, because it is at heavy lifting to which the limitations in the medical certificates are directed. As to the attack on Dr Morgan’s second point, viz that the minor trauma operated upon the muscle wastage attributable to the earlier immobilisation, there was, with respect, evidence of prolonged immobilisation. The appellant’s evidence, and on this evidence she was not cross-examined, was that her arm had been immobilised in a sling for almost the whole of her five week holiday. This is not a case such as Smith v WorkCover Queensland (1999) 162 QGIG 193. It is not a case of an Industrial Magistrate preferring one expert witness to another having regard to demeanour, eg whether one witness gives considered opinions and the other is dismissive, or one of the experts has become an advocate in the box. It is a case where the Industrial Magistrate has preferred one expert to two others for cogent reasons which, on a re-hearing of the evidence, are shown not to have factual basis. The appeal is by way of a re-hearing. It seems to me that the point has been reached which I should apply the rule in Warren v Coombes (1979) 142 CLR 531 and form my own view on the evidence. In the result I have formed the view that I should prefer the evidence of Drs White and Morgan to that of Dr Downes. I do that because it is preferable to accept an inherently plausible and coherent account which sources the appellant’s adhesive capsulitis in antecedent events to an explanation which denies a source in known antecedent events without nominating what the cause might have been. It was not contended on the appeal that, if the appellant’s frozen shoulder was shown to be attributable to her work at the Public Trustee, there was any other issue about whether the injury was an injury within the meaning of the Act. I allow the appeal. The appellant is to have her costs of and incidental to the appeal taxed in the way in which costs are taxed in the Supreme Court. Since I have not been addressed on the matter of costs before the Industrial Magistrate, I shall, out of prudence, reserve the question of those costs. Dated this twenty-fifth day of May, 2000. D.R. HALL, President. Released: 25 May 2000 Appearances:– Miss C.C. Heyworth-Smith, instructed by Maurice Blackburn Cashman, Solicitors, for the appellant. Mr G.C. Rhead instructed by WorkCover Queensland for the respondent. ######################################################################################################################## -- 2 of 2 --