Owen v Workers' Compensation Regulator
[2015] QIRC 9
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- Unreported Judgment
- Owen v Workers' Compensation Regulator[2015] QIRC 9
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Owen v Workers' Compensation Regulator[2015] QIRC 9
Owen v Workers' Compensation Regulator[2015] QIRC 9
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Owen v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 009 |
PARTIES: | Owen, Stephen (Appellant) v Simon Blackwood (Workers' Compensation Regulator) (Respondent) |
CASE NO: | WC/2014/186 |
PROCEEDING: | Appeal against a decision of Simon Blackwood (Workers' Compensation Regulator) |
DELIVERED ON: | 16 January 2015 |
HEARING DATES: | 29 September 2014 13 & 14 October 2014 |
MEMBER: | Deputy President Swan |
ORDERS: |
|
CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION - decision of Simon Blackwood (Workers' Compensation Regulator) - whether a medical condition 'atrial fibrillation' was causally related to appellant's motor vehicle accident - differing medical specialists' opinions - legal principles pertaining to conflicting medical evidence - appellant unable to satisfy the onus of proof. |
CASES: | Workers' Compensation and Rehabilitation Act 2003 s 32, s 550 Holtman v Sampson (1985) 2 Qd R 472 Munroe Australia Pty Ltd v Campbell (1995) 65 SASR 16 Commissioner for Police v Rea (2008) NSWCA 199 |
APPEARANCES: | Mr M. Hovarth, Counsel instructed by Quinn and Scattini Lawyers for the Appellant. Mr S. Sapsford, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator) the Respondent. |
Decision
- [1]Mr Owen seeks workers' compensation benefits in relation to the condition of "atrial fibrillation".
The issue in contention
- [2]It is agreed between the parties that the only issue for consideration by the Commission is whether or not the episode of AF which occurred on 4 February 2013 to Mr Owen is causally related to a motor vehicle accident in which he was involved on 6 December 2012.
- [3]The proceedings are by way of a hearing de novo.
- [4]The onus is on the Appellant to satisfy the Commission, on the balance of probabilities that the causal connection it alleges is more likely than not.
Witnesses
- [5]Witnesses for the Appellant were:
- Stephen Owen, Appellant;
- Associate Professor John Raftos, Senior Specialist Emergency Medicine;
- Dr David Hardman, Consultant Vascular Surgeon;
- Helen Horsfield, Appellant's partner;
- Troy Owen, Appellant's nephew.
- [6]Witnesses for the Respondent were:
- Dr Hossack, Cardiologist;
- Dr Chris Cunneen, Occupational and Environmental Physician;
- Dr Barry Turner, General Practitioner;
- Dr Katherine Bergman, Medical Registrar.
Appellant's submissions as it relates to the Accident and events shortly thereafter
- [7]Mr Owen was involved in a motor vehicle accident on 6 December 2012.
- [8]The facts establish that the car he was driving, which was stationery at a set of lights, was driven into by another vehicle.
- [9]Mr Owen says that the other vehicle was travelling at speed. The cars were wedged together and there was considerable damage to Mr Owen's car. Both Mr Troy Owen and Ms Helen Horsfield (relatives of Mr Owen who attended at the site of the accident) stated that the driver's seat was broken and laying back in the car. However, Mr Owen's evidence was that the car seat had not collapsed.
- [10]The Appellant, in final submissions, stated that at the time of the accident "The appellant complained of chest pain to Troy Owen and as a result Troy Owen took him to the doctor."
Commission Note: The evidence of Mr Owen does not say this. Mr Troy Owen made that claim.
- [11]Notwithstanding that, Dr Turner's medical entry on that day documents "has pain left upper chest; right upper rear neck; pain right upper limb; no bruising evident; cervical spine - reduced rom; imp - probably soft tissue injury; plan - cervical spine views" [Exhibit 3].
- [12]A few weeks after the accident, Mr Owen suffered a "racing heart" event. He used a heart monitor at his home and it showed a heart rate of over 170. It is claimed that was an episode of AF 'whether or not the monitor is accurate'.
- [13]On 3 February 2013, Mr Owen reported feeling pale, breathless and restless. An ambulance was called and a Doctor attended. It is alleged that Mr Owen was suffering from AF and he was taken to Logan Hospital.
- [14]It is claimed that the AF caused a clot to go to Mr Owen's kidneys and bowel. The clot restricted blood flow to those organs and part of the bowel died and had to be removed.
- [15]As to "causation", it is claimed that "the impact of the chest in the car accident was a contributing cause to the development of the AF episode on 3 February 2013 in the presence of other risk factors which made the appellant more vulnerable to such an episode" [Appellant's submissions - point 14].
- [16]It is submitted that prior to the vehicle accident, Mr Owen had risk factors associated with AF - these included alcohol usage, obesity, sleep apnea and blood pressure.
- [17]Prior to the accident, in 2009, Mr Owen was placed on blood pressure medication and between 2009 and 2012, his blood pressure was well controlled.
Appellant's submissions concerning legal consideration of medical evidence
- [18]Upon the significant issue of "causation" there is conflict between the medical practitioners who gave evidence upon some critical issues.
- [19]The Appellant states that the Commission should consider the matter of Holtman v Sampson as it relates to determining conflicting medical evidence.
"The Court determines the facts and where there is expert evidence, that is done not merely by looking at the expertise of the witnesses, but by applying logic and common sense to the substance of the opinions and deciding which view is to be preferred or which parts of the evidence are to be accepted. This involves an evaluation of the witnesses' respective credit and credibility, but not to the same extent as lay witnesses."[1]
- [20]Other decisions to which reference was made include:
"Expert evidence is only part of the evidence of any issue. The Court can resolve the conflict by reference to lay evidence."[2]
"Also, if the medical evidence says a condition is possible, the Court can refer to lay evidence and decide it is probable."[3]
The Medical Evidence
- [21]The Respondent submits that there are two essential factors for consideration as to whether the motor vehicle accident was causative of the AF. These are:
- (a)whether there was blunt force trauma to the Appellant's chest; and
- (b)the period of time between the motor vehicle accident and the AF.
The Appellant asserts that broader considerations are required and not only those nominated by the Respondent.
- [22]The Appellant stated that the impact to the chest in the car accident was a contributing cause to the development of the AF episode on 3 February 2013 in the presence of other risk factors which made the Appellant more vulnerable to such an episode. This perspective was proffered by Associate Professor Raftos.
- [23]Dr Hardman's evidence was that he would defer primarily to Dr Hossack as he was a cardiologist and also to Associate Professor Raftos when it came to the cause of the AF.
- [24]Dr Cunneen's evidence was that there was no relevant documented chest trauma and he did not accept that Mr Owen's car accident contributed to AF in February 2013.
- [25]Dr Cunneen agreed with the Respondent in that if Mr Owen did not exhibit external contusions or external stigmata then "it makes it less likely that you got damage to internal organs such as the heart …".
- [26]When asked is it possible for such a motor vehicle collision to be causative of AF without that damage (i.e. external stigmata or contusions) Dr Cunneen responds "all things are possible and I'd say yes, but not probable" [T3-37].
Whether there was blunt force trauma to the Appellant's chest
Dr Hossack's evidence
- [27]Dr Hossack's evidence was that AF was not related to the car accident. He thought that AF more rightly related to Mr Owen's high blood pressure [Medical Report - Exhibit 1].
- "In my opinion there is no relationship between the accident and blood clots and AF. There is no plausible mechanism linking a musculo-skeletal neck injury to AF." [Medical Report - Exhibit 1].
- "In my experience, the injury that is sufficient to cause AF is a very severe injury."
- Dr Hossack said that "many people who develop AF from an accident are so severely injured that they need to be put on a ventilator to support their breathing as a result of the severe chest trauma and that again is associated with atrial fibrillation" [T1-12 line 35].
- Dr Hossack stated that the development of AF is an uncommon finding in the majority of cases of people with chest trauma. … "but if it does occur it's an indication of the severity of the total body injury as well as the localized chest trauma" [T1-12 - line 40].
- [28]When considering the report from the Queensland Ambulance Service of 4 February 2013, when Mr Owen was admitted to Hospital for an episode of AF, Dr Hossack responded:
- That the ambulance officer had recorded Mr Owen's pre-existing hypertension and medication taken for high blood pressure.
- That Mr Owen had been unwell from 7.00 pm on the evening that the ambulance was called.
- His symptoms were sore throat, shortage of breath, generalized pain to the abdomen and back and the ambulance officer noted "uncontrolled AF".
- [29]Dr Hossack considered not only Mr Owen's pre-existing hypertension but also the clinical notes taken by Doctor Bergman at the Logan Hospital. At the time of the accident it had been noted in that report that there had been no complaint of chest pain, palpitations or shortage of breath after the accident.
- [30]As well, in that report was that "the patient denies any chest wall bruising"; "No fractured ribs and there was bruising of the right forearm where it hit the steering wheel" [Exhibit 5].
- [31]The report also states "history of accident and lack of chest wall trauma, does not sound consistent with cardiac contusion … I think it is unlikely that MVA was the precipitant for AF" [Exhibit 5].
- [32]After considering those records, Dr Hossack said that "it would be improbable that there was any cardiac contusion at the time of the motor vehicle accident" [T1-16].
- [33]Dr Hossack, after considering passages of medical literature provided to the Commission by Dr Hardman, was of the view that "… if atrial fibrillation is going to occur as a result of a chest - as a result of cardiac injury, it's going to occur early on in the period after the injury".
- [34]Dr Hossack believed that in Mr Owen's case, the AF occurred some six to eight weeks after the accident. He said that this time lapse made it improbable that the accident had anything to do with AF [T1-17].
- [35]Dr Hossack stated that "from the degree of the injuries that were sustained to the chest wall, the likelihood that there was cardiac contusion is remote" [T1-42].
- [36]Dr Hossack believed that the damage to the vehicles and the circumstances of the accident did not assist at all in determining whether a person might have sustained a blunt-force trauma so as to cause AF.
- [37]Dr Hossack also agreed with the statement "Traumatic cardiac dysrhythmias usually develop within the first several hours or within 24 to 48 hours, however, some patients with trauma experience life-threatening dysrhythmias several days after an episode of injury" [Exhibit 7].
Summary of Appellant and Respondent submissions regarding Dr Hossack's evidence
- [38]The Appellant viewed Dr Hossack's evidence as of limited assistance in determining the question of causation of Mr Owen's AF. The Appellant questioned Dr Hossack's responses to many propositions posed during cross-examination and noted that:
- While an elevated blood pressure is associated with the occurrence of AF, Mr Owen's blood pressure was under control between 2009 and 2012.
- Dr Hossack had not viewed the echocardiogram of 16 November 2012.
- Dr Hossack did not seem concerned about the type of accident which had occurred and discounted the event of the broken seat in Mr Owen's vehicle.
- Dr Hossack preferred Dr Bergman's medical records (PA Hospital) from 11 March 2013 over contemporaneous records of 6 December 2012 confirming upper left chest pain.
- Dr Hossack preferred his own views and experience over that supplied in medical literature referenced during the hearing.
- Dr Hossack had said that contusion and seatbelt trauma was 'improbable'.
- There was less than 1% chance that the accident was the cause of Mr Owen's AF.
- Dr Hossack agreed that a racing heart would be felt by Mr Owen.
- Dr Hossack had conceded that an elevated heart rate (similar to the one described by Mr Owen some two weeks after the 6 December 2012 accident) was consistent with an AF episode.
- [39]The Respondent said that Dr Hossack's evidence was that:
Dr Hossack viewed as the major factor which pre-disposed Mr Owen to AF was his long standing history of hypertension and this was evidenced by "an increase in left ventricular wall thickness described on the echocardiogram of 16 November 2012 as "mildly increased"" [Exhibit 2].
Associate Professor Raptos had thought that factor was a negligible predisposing factor due to the fact that Mr Owen's hypertension had been adequately treated. However, Dr Hossack was clear as to the extent and duration of hypertension necessary to produce a thickening of the ventricular wall.
Dr Hossack did not agree with Associate Professor Raptos that Mr Owen's heart was 'structurally and functionally normal'.
Dr Hossack had found nothing in Dr Turner's (Mr Owen's General Practitioner's) notes on 6 December 2012 which pointed to a cardiac injury being suffered by Mr Owen. Associate Professor Raftos also agreed with this.
Dr Hossack concluded that an individual who developed AF as a consequence of a blunt force injury would have had to sustain a "very severe injury".
Upon a consideration of Dr Bergman's (PA Hospital) notes, Dr Hossack believed those notes reveal that the chest wall did not impact upon the steering wheel and that it was only the right forearm.
In the clinical notes of Dr Turner made on 6 and 7 December 2012, there was no evidence of bruising, fractured ribs, fractured sternum or any other indicia of blunt force trauma to the chest.
The suggestion by the Appellant that the clinical notes of 6 December 2012 of "left upper chest below neck" pain could relate to blunt force trauma, was not supported by Dr Turner in evidence where he related the pain to the neck injury diagnosed as a soft tissue whiplash type of injury [Exhibit 3 - clinical notes 7 December 2012].
The direct evidence of Mr Owen and Ms Horsfield was that he had not suffered any bruising, pain or injury to his chest. While Mr Troy Owen had said Mr Owen had told him that he suffered from chest and back pains after the accident, this was unsupported by the medical evidence and by Mr Owen.
Evidence of Associate Professor Raptos
- [40]Associate Professor Raptos summarized his evidence by stating that:
"Therefore given that there was no evidence of atrial fibrillation on 16 November 2012 and given the proximity of the car assient (sic) in which he suffered chest injuries to the development of the atrial fibrillation, it would be reasonable to say that Mr Owen's atrial fibrillation was, on the balance of probabilities, have been (sic) cause (sic) by cardiac injury that occurred in the car accident of 6 December 2012" [Respondent's emphasis].
- [41]The Respondent asserts that the primary flaw in this submission is that 'chest injuries' were suffered by Mr Owen in the accident. Associate Professor Raptos had agreed that on the evidence there was nothing to support blunt force trauma.
- [42]Associate Professor Raptos had considered the damage to the vehicle in the accident and that the driver's seat had collapsed. The Respondent states that there was no evidence as to what force would be required to cause the seat to collapse and no evidence to show what condition the seat had been in before the accident. Taking all of that into account plus the age of the car, no conclusions could be drawn on those issues.
Evidence of Dr Hardman
- [43]Dr Hardman stated that "The association between trauma and atrial fibrillation would be best examined either by an intensive care specialist or, in the alternative, by a cardiologist."
- [44]Dr Hossack had mentioned that AF was due to Mr Owen's history of high blood pressure, but Dr Hardman says that while this is possible, the pre-injury echocardiogram shows no structural problems in the heart related to the blood pressure. Dr Hossack disagrees with this proposition as it related to the pre-injury echocardiogram.
- [45]Dr Hardman relied upon the belief that Mr Owen had suffered from blunt chest injury and stated that this was well documented to be associated with AF. Dr Hardman further stated that "an isolated whiplash injury of the neck is unlikely to cause AF but if there was blunt thoracic trauma experienced at the same time, such as the deceleration injury caused by a seatbelt, that may be enough to cause AF and in this man the subsequent clinical events."
Time between the Motor Vehicle Collision and the Episode of Atrial Fibrillation
- [46]Dr Hossack said that if AF was going to occur as a result of cardiac injury then that would occur early on in the period after injury. He believed that a time period of 'six or so weeks' made it improbable that the car accident had anything to do with AF.
- [47]Associate Professor Raptos thought it was possible for there to have been AF as a result of the collision which was present but undetected prior to the episode of hospital admission. The Respondent pointed out that twice Associate Professor Raptos had referred to the date of 7 December 2012 in relation to the AF, but on that date the respondent pointed out that Dr Turner's clinical note was that Mr Owen's pulse rate and blood pressure had been normal. Associate Professor Raptos, upon being reminded of this, said that at that point Mr Owen had not been suffering from AF. However, Associate Professor Raptos said that the AF, caused by the accident, had remained undetected until some later period and specifically so on 4 February 2013.
- [48]Dr Hossack referred to the remoteness of Mr Owen's AF being connected to the car accident. He viewed the prospect of the accident being the cause of AF at less than 1%.
- [49]In relation to Mr Owen's use of a home heart rate monitor and its recording of his heart rate, neither Mr Owen nor his partner were sure if this matter had been raised with Dr Turner. Dr Hossack was of the view, that Mr Owen's heart rate could have been due to factors such as infection or stress of physical activity. In any event, the incident was some two weeks after the accident [T1-44-30].
- [50]Both Associate Professor Raptos and Dr Hossack agreed that AF usually occurs in the first hours or days of trauma giving rise to AF if it is related to that trauma.
- [51]Both Associate Professor Raptos and Dr Hossack agreed that the reduced ejection fraction was attributable to presentation with AF and was not in any way evidence of myocardial contusion as alleged by Dr Hardman.
Lay Evidence
- [52]Mr Owen's evidence was that the front seat had not collapsed; that he exited the car after turning off the ignition and releasing his seat belt; that he had no recollection of chest pain, chest bruising or heart pain; that the only pain experienced was in his right elbow and right arm, and when asked if he had bruising, he stated that he had looked for some but could find nothing. Ms Horsfield agreed with these propositions.
- [53]Mr Troy Owen's evidence was that the driver's seat of the car had collapsed and that Mr Owen had told him shortly after the accident that he had chest and back pain. That evidence, being at odds with that of Mr Owen and his partner, is not accepted as being reliable by the Commission.
- [54]While Mr Owen said he had told Dr Turner some weeks after the accident that he had high blood pressure when using his home heart monitor, his partner and the clinical notes of Dr Turner make no reference to this. However, Ms Horsfield was aware that Mr Owen had used the home heart monitor. Mr Owen had told her his heart was racing, but she was sceptical stating "yeah and then I said to him - I said well, you can't - know if it's true."
Consideration of the evidence and conclusion
- [55]The medical and lay person evidence shows that there was no blunt force trauma involved in terms of Mr Owen's accident. The medical practitioners agree that in the absence of such trauma, it is not probable that Mr Owen's AF was caused by the motor vehicle accident.
- [56]Primarily the evidence given by Dr Hossack, was in my view the more reliable when it was considered within the context of the medical evidence of treating doctors around the time of the accident and in early February 2013. On the significant medical points considered in this decision it is reasonable to state that there was consensus as to:
- (a)whether there was blunt force trauma to the Appellant's chest; and
- (b)the period of time between the motor vehicle accident and the AF.
- [57]However, the Appellant states that the only explanation provided to the Commission of Mr Owen's AF is that of the accident. This is so because the risk factors nominated in paragraph 16 must exclude blood pressure (as this was well controlled) and alcohol as Mr Owen said he had not been drinking over the week-end prior to the accident.
- [58]The Appellant states that one is required to consider a range of other factors - i.e. the state of the vehicle and the damage to the car seat (acknowledging that Mr Owen said it had been upright and not laying back). As well, even though Mr Owen had wanted to go home immediately after the accident, Mr Troy Owen took him to Dr Turner. The Appellant has asked the Commission to accept, with those factors in mind, that the notes of Dr Turner record a position which "amounts to chest trauma".
- [59]It is clear that Mr Owen recorded his symptoms to Dr Turner not long after the accident. I have been unable to find that Dr Turner's opinion was that Mr Owen had suffered from chest trauma or that his symptoms amount to chest trauma.
- [60]The Appellant submits that the medical evidence and information which supports a medical finding that there was no blunt chest trauma suffered by Mr Owen, is not the legal test. In effect, all evidence requires consideration whether medical or not.
- [61]It is submitted that what is also required to be considered is that some weeks after the accident the Appellant had recorded a very high heartbeat on his home monitor. That episode was followed by Mr Owen's admission to Logan Hospital on 3 February, 2013.
- [62]The Appellant states that what is required to be undertaken is an assessment of all the material in a logical and commonsense manner (see Holtman v Sampson). The Appellant asserts that the key question in fact that the medical evidence needs to establish is only that the situation as presented on the evidence is possible that there is 'causation'. Once that is found, the Commission can 'supplement' that finding and determine the issue.
- [63]The Appellant states that AF is not a condition that 'turns up on day one'. He described Mr Owen's condition as "This is AF sort of episodes". That AF was not diagnosed between the date of the accident of 6 December 2012 and 4 February 2013 at Logan Hospital is, in the Appellant's view, a "bit too simple" in terms of suggesting that the Appellant did not have AF.
- [64]In considering all of the evidence and submissions, in my view, the medical evidence points largely to the fact that AF, if it has occurred as a consequence of the car accident, would have been evident at the time of the accident or within a short period after that and certainly before the expiration of some 6 to 8 weeks later.
- [65]I have preferred the evidence of Dr Hossack over that of other medical specialists. His evidence was clear and unambiguous and was largely, on critical points, supported by other specialists.
- [66]I have taken into account the Appellant's submissions, but am unable on the general evidence, and also on the specific medical evidence to accept that Mr Owen's AF was attributable to the car accident which had occurred on 6 December 2012. The weight of medical evidence is against it and there is little in the lay evidence which supports the adoption of a different perspective.
- [67]The Appellant is to pay the Respondent's costs of and incidental to the hearing.
- [68]The application is dismissed.