Hart v Workers' Compensation Regulator
[2016] ICQ 26
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- Hart v Workers' Compensation Regulator[2016] ICQ 26
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Hart v Workers' Compensation Regulator[2016] ICQ 26
Hart v Workers' Compensation Regulator[2016] ICQ 26
INDUSTRIAL COURT OF QUEENSLAND
CITATION: | Hart v Workers’ Compensation Regulator [2016] ICQ 026 |
PARTIES: | JULIE ANN HART (appellant) v WORKERS’ COMPENSATION REGULATOR (respondent) |
FILE NO/S: | C/2016/15 |
PROCEEDING: | Appeal |
DELIVERED ON: | 16 December 2016 |
HEARING DATE: | 1 December 2016 |
MEMBER: | Martin J, President |
ORDER/S: |
|
CATCHWORDS: | WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – DETERMINATION OF CLAIMS – APPEALS, JUDICIAL REVIEW AND STATED CASES – GENERALLY – where the appellant was employed as a gate house attendant at a waste management facility – where the appellant sought workers’ compensation in respect of an alleged aggravation of a pre-existing cervical condition – where the appellant’s case was that the aggravation occurred on 14 June 2015 when she worked a 12 hour shift for the first time – where the appellant was required to reach out a window to collect money from customers – where the Commissioner dismissed the appellant’s appeal of the decision of the Regulator to reject the appellant’s claim – whether the Commissioner’s finding that the appellant experienced neck pain from 8 June 2015 to 14 June 2015 was a material error – whether the decision below should be set aside Workers’ Compensation and Rehabilitation Act 2003, s 32 |
APPEARANCES: | R Myers instructed by Hall Payne Lawyers for the appellant D Callaghan directly instructed by the Regulator |
- [1]Julie Hart (the appellant) was employed as a gate house attendant at a waste management facility run by the Bundaberg Regional Council. She worked shifts of (on average) six and a quarter hours for two or three days per week. Her job involved collecting money from customers as they drove into the facility.
- [2]The appellant unsuccessfully sought workers’ compensation from Local Government Workcare for an injury sustained on 14 June 2015. She appeals the decision of the Commission confirming the decision of the Regulator that her claim be rejected.
- [3]There were numerous grounds of appeal but the appellant concentrated on only two, namely that the Commissioner erred in failing to conclude, for the purposes of s 32 of the Workers’ Compensation and Rehabilitation Act 2003, that:
- (a)The injury arose out of or in the course of the appellant’s employment, and
- (b)The appellant’s employment was a significant contributing factor to the injury.
14 June 2015
- [4]The appellant’s case before the Commission was that in the course of her employment on 14 June 2015 she suffered an aggravation of a pre-existing cervical condition.
- [5]The Commissioner described the appellant’s system of work as follows:
“[8] … Ms Hart would step up on a stool, reach out of the gatehouse window to the customer to take the money, step down, process the transaction and then reverse her actions. Where the driver was parked further than the middle of the weighbridge, simply reaching out of the window was insufficient. In those cases, the process was essentially the same except that Ms Hart would reach out of the window extending a piece of pipe with a bucket attached to the customer and then withdraw it. If a customer did not require a receipt, which Ms Hart estimated to be in 20 per cent of cases, then there was no need for the reverse of the process to occur.”[1]
- [6]On 14 June 2015 the appellant was working a 12 hour shift from 6 am to 6 pm for the first time and conducted some 163 transactions requiring the movements described above, along with other transactions that involved the simple pushing of a button.
- [7]The appellant said that at 3.30 pm her lower back was aching so she went for a short walk and did some stretching exercises. Sometime after that she noticed she had a very stiff neck. By around 5 pm the appellant was suffering from lower back spasms. After an uncomfortable drive home, she sat down in her house and experienced incredible pain:
“It was all my neck from up under my head right down to between the shoulder blades there and both arms. I had pins and needles at the same time on the left side of my face and the left side of my head. I had pins and needles all down my left arm…[2]”
- [8]The appellant said that while she had a history of lower back pain she had never experienced neck pain of this kind before. The pain continued and was with her when she gave evidence before the Commission on 9 May 2016.
Grounds of appeal
Ground 1 – Aggravation arose out of or in the course of appellant’s employment
- [9]The first ground of appeal is that the Commissioner erred in failing to find that the appellant had suffered an aggravation of a pre-existing condition that arose out of or in the course of her employment.
- [10]The appellant submitted in respect of this ground of appeal that:
- (a)The Commissioner erred insofar as her decision was based on a finding that was contrary to the evidence, namely that the appellant experienced continual neck pain between 8 June and 14 June 2015; and
- (b)The evidence of Dr Van der Westhuizen (which the Commissioner accepted on the question of causation) that the appellant’s system of work was likely to lead to an aggravation of her condition meant that the Commissioner erred in reaching the conclusion that she did.
Finding as to neck pain between 8 June and 14 June
- [11]At [65], the Commissioner said:
“She first experienced neck pain on the left side of her neck while picking strawberries at home on 8 June, nearly a week before her first 12 hour shift. At that time Ms Hart had not been rostered for work for three days. Neck pain persisted over the following week. The presence of neck pain over this period and during periods that she was not at work suggests Ms Hart's cervical spondylosis may have become symptomatic at this time and, if so, this did not arise out of or in the course of her employment nor was employment a significant contributing factor to the onset of symptoms.” (emphasis added)
- [12]As was submitted by the appellant and conceded by the respondent, the finding that the appellant experienced neck pain that continued from 8 June to 14 June was not open on the evidence. The appellant had rejected that proposition when it was put to her in cross-examination and said that the neck pain or stiffness on 8 June lasted only for half an hour to an hour.[3] The Commissioner made no adverse finding about the appellant’s evidence in this respect, and no other reasons were advanced for the finding.
- [13]The questions that arise, then, are:
- (a)is this a material error, and, if so
- (b)should the Commissioner’s decision be set aside?
- [14]Mr Myers (for the appellant) submitted that the error “vitiated the entire reasoning process” because it affected the Commissioner’s consideration of the evidence of medical expert witnesses. In particular, it was said that the evidence of Dr Cunneen was “prima facie accepted” by the Commissioner in the following passage:
“[58] The evidence of Dr Cunneen was that Ms Hart aggravated her cervical spondylosis as a result of the poor ergonomic design of the gatehouse, the system of work together with performing the 12 hour shift for the first time on 14 June. When considered in isolation from the pre-existence of neck symptoms and the chronology of the development of the other symptoms, his opinion lends weight to a finding that her pre-existing condition was aggravated by her employment.” (emphasis added)
- [15]But the Commissioner went on to reject that evidence:
“[59] However, as later explained, I do not consider her neck symptoms can be considered in isolation. In addition, Dr Cunneen's opinion was diminished by the factual errors in his oral evidence: that her work hours increased over the preceding three months, that she had other work events prior to 14 June and that her condition had improved by February 2016.
…
[63] Although the claim for a "neck sprain" is the focus of this appeal, it is not possible to exclude from consideration that the claimed injury occurred in the context of Ms Hart experiencing neck pain specifically in the week before 14 June as well as other symptoms, including neck symptoms, for at least two months before that date. In addition, she continued to experience neck and other symptoms after 14 June. As the chronology shows, her symptoms fluctuated in type and severity. The symptoms did not always fluctuate together.”
- [16]The appellant also submitted that the Commissioner’s error was material because it led to reasoning (contained in the last sentence in [65], excerpted above) directly relevant to matters in issue which was unsupported by relevant medical evidence. That is, there was no medical evidence before the Commission to the effect that the appellant’s condition was one that, if caused by her work, would have produced fewer or no symptoms when the appellant was not working.
- [17]Ms Callaghan (for the Regulator) submitted that the Commissioner did not “prima facie accept” Dr Cunneen’s evidence but for the finding as to neck pain. Rather, the Commissioner had adverted (at [59]) to factual errors made by Dr Cunneen when rejecting his evidence, which the Commissioner had detailed earlier in her reasons (at [19]-[21]).
- [18]It should also be noted that the Commissioner “generally accepted” criticisms made by the Regulator that Dr Cunneen was (among other things) unresponsive to questions in cross-examination and sometimes reluctant to make concessions consistent with his own evidence.[4] These led the Commissioner to the conclusion that “much of [Dr Cunneen’s] evidence is unreliable”.[5]
- [19]The Regulator did not directly address the submission that the reasoning in the last sentence of [65] was not supported by evidence, but submitted that the Commissioner’s decision as a whole was based on, or capable of being supported by, a number of other grounds. It is unnecessary to canvass them in detail here. It is sufficient to note that those submissions did not go to the way in which the impugned finding affected the Commissioner’s reasoning.
- [20]The Commissioner’s error is material. The finding that the appellant experienced pain throughout the week prior to 14 June was something upon which substantial weight was placed. It cannot be divorced from the rest of the Commissioner’s reasons.
- [21]At [59] and [63] the Commissioner implied that she could not make the finding (prima facie supported by Dr Cunneen’s evidence) that the appellant suffered a work-related aggravation because to do so would be to ignore that the appellant had experienced neck pain from 8 June 2014, “as well as” other symptoms for at least two months. “In addition”, the Commissioner said that the appellant experienced neck pain after 14 June, and her different symptoms fluctuated in type and severity and not always together. The Commissioner thus nominated multiple grounds for rejecting Dr Cunneen’s evidence. But those grounds are expressed as being additional to what seems to have formed the main ground – that the appellant suffered neck pain from 8 June to 14 June. At the least, the erroneous finding as to neck pain has exerted an obvious influence on the Commissioner’s approach to Dr Cunneen’s evidence.
- [22]It has also contributed to the Commissioner reasoning impermissibly in the absence of evidence. At [65] the Commissioner said that because the appellant experienced neck pain in the week prior to 14 June, and at other times when she was not at work, it “may” be that her cervical spondylosis became symptomatic “at this time” and “if so” then it would not be a compensable injury. The Commissioner then examined the evidence suggesting that the times the appellant experienced pain and attended work were not coterminous.
- [23]The importance of the finding as to neck pain immediately in the week prior to 14 June is plain. If that finding had not been made, there would have been much less reason for the Commissioner to think that the appellant’s pre-existing injury had simply become symptomatic from 14 June for reasons unrelated to her employment. That the Commissioner expressed herself conditionally on this point – “suggests”, “may”, “if so” – provides little comfort. It is clear from the reasons that this consideration, whether or not it amounted to a definitive conclusion, inextricably contributed to the decision. (Certainly, by this point the difficulty in disentangling the Commissioner’s finding as to the persistence of neck pain from 8 June from the rest of the reasons is apparent.)
- [24]Moreover, nowhere in the reasons is any expert evidence identified (and the Regulator was unable to point to any before the Commission) to support the conclusion that because the appellant’s symptoms fluctuated at different times and did not appear to worsen while she was at work after 14 June it was unlikely that her employment contributed to the injury. That may be the case – Mr Myers referred to the example of repetitive strain injuries in the course of submissions – but it need not be. It is not a determination that can be made in the absence of medical evidence directed to that precise issue.
Dr Van der Westhuizen’s evidence as to the system of work
- [25]The appellant contended that Dr Van der Westhuizen found that the system of work at the facility was “likely” to lead to an aggravation of the appellant’s injury. The following part of his evidence was relied on:
“It’s quite likely that the combination of her pre-existing condition and the suboptimal ergonomic circumstances of her work station would lead to an aggravation?‑‑‑Again, you know, I think it’s – if you – if you want to word it like that, that it’s likely. But it’s quite possible – but, you know, I wasn’t present and I didn’t witness it, so I think it’s possible, yes.”[6] (emphasis added)
- [26]A short time later in his evidence, however, Dr Van der Westhuizen said:
“I’m saying it’s impossible for me, in the presence of the ongoing inflammatory changes, to have a clear opinion on whether she had aggravation of her pre-existing condition. That’s what I’m saying.
…
I – with my clinical examination, and clinical findings, and special investigation findings, cannot exclusively support that it was only the workplace.”[7] (emphasis added)
- [27]It is clear from the above passages that Dr Van der Westhuizen did not consider it “likely” that the appellant had suffered an aggravation as a result of her system of work. He considered it a “possibility”.
- [28]This ground of appeal has not been made out.
Ground 2 – Employment a significant contributing factor to the injury
- [29]The appellant submitted that in circumstances where Dr Van der Westhuizen’s evidence was accepted, and that evidence was that it was likely that the appellant’s system of work combined with her pre-existing condition would lead to an aggravation, then the appellant’s employment could only be a significant contributing factor to the aggravation.
- [30]As I have found that Dr Van der Westhuizen’s evidence was not as asserted by the appellant, this ground of appeal has not been made out.
Conclusion
- [31]The appellant has been successful on one of its grounds of appeal. The question that remains for me to determine is whether the matter should be remitted to the Commission, or whether there is sufficient material for me to otherwise determine the claim.
- [32]I regret that the issues which were left open on the evidence, and the absence (referred to above) of some medical evidence require that the matter be remitted.
- [33]The orders are:
- (i)Appeal allowed,
- (ii)The matter is remitted to the Commission.