Alexiou v Workers' Compensation Board of Queensland [1993] ICQ 20 (1993) 143 QGIG 680

680 QUEENS LAND GOVERNMENT INDUSTRIAL GAZETTE [ 13 Augu st, 1993 #################################################### QUEENSLAND IND USTRIAL COURT WOR KERS' COMPENSATION A CT 1990 Industrial Relatio ns Act 1990 s. 9.2(3) - appeal from decisi on of industrial magistrate Ma rkos Alex iou AND Workers' Compensation Board of Queensland (No. Cl of 1993) JUSTICE MAC KENZII:, PRESID ENT 29 July 1993 Appeal - Industrial Magi stra te - Workers' Compensati on Inju ry - Degeneration of Vertebr ae - Med ical Ev idence Ap p ea l Allowed wi th Cos ts - Remitt ed to Industrial Magi stra te. JUDGMENT Th i s i s an appeal aga inst the dismissa l of a Workers· Compensati on reference by an Industrial Magi stra te at Southpo rt. It is common ground: (a) that the appellan t had a fa ll from a ladd_er at work on 22 May 1991 in wh ich he injured his back and neck; (b) that th e Workers' Compensation Boa rd had pa id compensation until 17 Ma rch 1992 wh en it advised the appli can t that it conside re d that his continued absence from wor k was not the result of injury as defined in t he Workers' Compensation Act; (c) that the appell an t was suffering pain in h is back and neck at t he time of t he Boa rd 's decision to stop paying compensation; (di that he wa s su ffering from a natural process of degeneration oi vertebrae in his lower back cons i stent with his age and th e n atu re of hi s work prior to the incident on 22 May 199 1. The i ssue is w he ther at the re levan t time h is condition was an "inju,y" in te rms of s. 2.1 oi the Workers' Compensalion Act 1990. The Industrial M agistrate's decision explored the medical evidence and came to the conclus io n that the applicant was not af ter 17 Ma rch 1992 or at the time of the hea ring sufferi ng from an "inju,y" whi ch had been caused at work. Th e referen ce was therefore dismi ssed. The Industrial Magistrate's decision, as I understand it , proceeds on the bas i s that the medical eviden ce was that wit hin about six months of t he fa ll "the direct inj uri es from the fa ll " wou ld have healed. It was accep ted th at the medi ca l eviden ce was to the effect that a naturally degenera ti ng back wou ld not necessarily c ause pa inful symptoms in the future in the absence of an incident that cau sed it 10 become pa infu l. A person may go th rough life without pai n from it although in many cases pain would eventuall y occur as a resu lt of natural causes. After referring to Th e Darling Island Stevedoring and Lighterage Co. Ltd. v. Hankin so n (1967) 117 CLR 19 as a case "i n wh ich there was an acceleration of degenerative condition, or accel eration of a pre- ex is ting con dition" and say ing th at that did no t seem to be the case in this ma tte r, he said:- "The arthritic, or the degenerative condition, as I understand the evidence of both of the orthopaedic specialists, it has not been accelerate d, i t has b een made obvious th at i t was there. In other words, the pain and t he stiffness became obvious, and from that po int did no t go away; did no t go away signifi ca ntl y. ". I pause to note th at the High Court th ought that t he collapse of di sease d vertebrae in that case was an "i nj ury" rather than an agg ravation or acceleration of an existing di sease, althou gh the concepts of aggravation and acceleration were d iscussed because of the approach taken in the Courts below. H is understanding of the medi ca l evidence i s al so indicated by the follow ing passage: - "What the d oc tors sa y is that the injury to the back did not so much agg ravate the arthritic condition, the de_ge nerative condition; in other words, it di d not speed up the degeneration. The degenerati on, i understan d from the doctors, is something that is constant. It ju st degenerate s gradually, dep en di ng on the use that is put to the bones and the joi nts . The injury did no t speed up tha t; all it did was make obvious a symptom. In other wo rds, some pa in, some sti ffness.". He concluded that the ex istence of t he symptom s was not a "continua ti on of the or i gi n al i nju,y". He summed up by say ing:- "The things that wou ld have incapacitated him ior work in connec ti on wi th the original inj u,y wou ld have been the fracture 10 the lumbar reg ion; would have been the tenderness, bruising, soreness, et cetera, to the muscles around t he area , and once those conditions heal ed then so fa r as the inj u,y was concerned then he was fit to resume work. I do no t see in the medical evidence that the present con dition t ha t he has has been accelerated, tha t it has been conti nued by the inju ry th at he had. If, for exampl e, t he ir acwre to the lumbar area had not hea l ed over a period of 12 months and get agg ravating (s i c) the arthritis then it could be seen that the inj ury kept on an noying, if you lik e, the other condition. Bu t that is not the case here, because both Dr Langley and Dr Simpson say that those ini ti al injuries have healed, that the sympto ms w it h res pect to the initial injuries have gone, and that the symptoms that the applicant now suffers from are a result of the degenerati ve condition.". A degenerative condition of the back is a "dis ea se" wi thin the meaning of s. 2.1 of the Act. for the pu rposes of the present fact situation an aggravation of a disease occurs when some external stimul us causes the experience of the d isea se by the applicant to be incr eased or intensified by an increase or in te nsifi cat ion of sy mpt oms (Federal Broom Co. Pty. Ltd. v. Semlich (1964) NSWR 511; (1964) 11 0 CLR 626 Commonwealth of Avstralia v. Bea ttie (1981) 35 ALR 369). As 10 accel era ti on, in Federal Broom Co. Pty. Ltd. v. Semlitc/1, M offi tt J. at 519 sa i d:- " A di sease wh ich is progressive accordi ng to i ts nature may, by reason of external sti mu li, have i ts p rogress accelerated. Befo re such accelerat ion can be found to ha ve ca use d incapacity there mu st be mo re sev ere or additional symp to ms arising from the acceleration wh ich have produced an incapaci ty wh ich would not otherwi se have exi sted . In this even t the re i s an incapacity ca used by an acceleration of the disease. Symptoms in the case of a progressive di sease however may be on ly evidence oi the acceleration w ithout producing in themselves any harmful effects, in wh ich event there may be an acceleration of the di sease with no p resen t res ultant incapacity.". (See al so Asioty v. Canberra Abattoir Pt y. Ltd. (1989) 87 AL R 385) If there is an aggravation or acceleration there is no doubt that the empl oyment was a contributing factor becau se th e fa ll occurred in the cou rse of employmen t. No twi thst an ding cross- exami na tio n, each of the medi ca l practitioners who gave evidence remain ed of op inion that there was al l east a component of the efiects of th e inj u,y sti il operating at the t im e that they saw the applicant. 13 Augu st, 1993 ] QUEENS LAND GOVE RNME NT INDUST RI AL GAZETTE Dr Robinson saw him between 14 Oc tober 1991 and 3 February 1992. Dr Langley saw h im on 21 December 1992. D r Yaks ich, wh ose re port was tendered, repo11ed on 29 May 1992 that his conti nu ing pa in and disability was directly re lated to the fall at wo rk. The evidence i s, therefore, that the degenerating back was converted by the fa ll from one that was asymptomati c to one which ca used pain. The passages quoted from t he Industrial Magi strate 's decision indicate that the test applied by him was n ot in accordan ce w i th the principles applyi ng to such cases. In view of th e common ground as to the c ircumstan ces of the fall, the appli ca nt was sufferi ng from an " inju ,y" and t he appeal must be al lowed with costs. I further order that the reference be rem i tte d to the Industri al Mag is trate, So uthport, w ith a directi on that he proceed according to law. Dated thi s twenty-ninth day of July, 1993. K.C.W. MACKENZIE, Pres iden t. Appearances:- Mrs D. Ric hards for Mark os Alex iou. Mr C. Owens for th e Workers ' Compensa tion Board of Queensland. Operative Date: N IA Judgment - Mar kos Alexi ou and Wo rker s' Compensation Boa rd of Qu ee nsland Released: 29 July 1993 ################################################### 143433 -62 681 -- 1 of 1 --