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Van Gestel v Workers' Compensation Regulator[2016] QIRC 1

Van Gestel v Workers' Compensation Regulator[2016] QIRC 1

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION: 

Van Gestel v Workers' Compensation Regulator [2016] QIRC 001

PARTIES: 

Van Gestel, Joanne

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2015/158

PROCEEDING:

Appeal against a decision of the Workers' Compensation Regulator

DELIVERED ON:

13 January 2016

HEARING DATES:

1 October 2015

HEARD AT:

Brisbane

MEMBER:

Industrial Commissioner Thompson

ORDERS:

  1. The Appeal is dismissed.
  2. The Decision of the Regulator is confirmed.
  3. The claim is not one for acceptance.
  4. The Appellant is to pay the Regulator's costs of and incidental to this Appeal to be agreed or failing agreement to be the subject of a further application to the Commission.

CATCHWORDS:

WORKERS' COMPENSATION ‑ APPEAL AGAINST DECISION ‑ Decision of Workers' Compensation Regulator ‑ Appellant bears onus of proof ‑ Standard of proof ‑ Balance of probabilities ‑ Witness evidence ‑ Appellant was a "worker" - Appellant suffered a personal injury in the form of headaches following a soft tissue neck injury - That injury was not the post‑traumatic migraine injury subject of the Appellant's Notice of Claim but that of cervicogenic headaches - The personal injury arose out of the course of her employment and was likely to have dissipated following resolvement of the soft tissue injury - The alleged post traumatic migraine condition had no causal connection with employment - Employment was

not a significant contributing factor - Appeal dismissed - Decision of the Regulator confirmed - Appellant to pay Regulator's costs of and incidental to this Appeal to be agreed or failing agreement to be the subject of a further application to the Commission.

CASES:

Workers' Compensation and Rehabilitation Act 2003 s 11, s 32, s 275, s 550

Lackey v WorkCover Queensland (2000) 165 QGIG 22

Newberry v Suncorp Metway Insurance Ltd [2006] QCA 48

Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 100

Boyd v Q-COMP (2005) 180 QGIG 1129

Groos v WorkCover Queensland (2000) 165 QGIG 106

APPEARANCES:

Ms C. Hartigan of Counsel, instructed by Hall Payne Lawyers for the Appellant.

Mr A. McLean Williams, Counsel directly instructed by the Workers' Compensation Regulator, the Respondent.

Decision

  1. [1]
    A Notice of Appeal was lodged by Joanne Van Gestel (Appellant) with the Industrial Registrar on 16 June 2015 pursuant to s 550 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) against a decision of the Workers' Compensation Regulator (the Regulator) dated 19 May 2015. 
  1. [2]
    The decision of the Regulator was to confirm the decision of the Insurer (Wesfarmers) to reject a Notice of Claim for Damages in accordance with s 32 of the Act.

Relevant Legislation

  1. [3]
    The Legislation pertinent to this Appeal is ss 32 and 275 of the Act:

"32 Meaning of injury

  1. (1)
    An injury is personal injury arising out of, or in the course of, employment if -
  1. (a)
    for an injury other than a psychiatric or psychological disorder - the employment is a significant contributing factor to the injury."

"275 Notice of claim for damages

  1. (1)
    Before starting a proceeding in a court for damages, a claimant must give notice under this section within the period mentioned in section 302(1).
  1. (2)
    The claimant must -
  1. (a)
    give the notice of claim in the approved form to the insurer at the insurer's registered office; and
  1. (b)
    if the worker's employer is not a self-insurer, give a copy of the notice of claim to the worker's employer.
  1. (2)
    The notice must include the particulars prescribed under a regulation.
  1. (3)
    The claimant must state in the notice -
  1. (a)
    whether, and to what extent, liability expressed as a percentage is admitted for the injury; or
  1. (b)
    a statement of the reasons why the claimant can not admit liability.
  1. (4)
    Any statement made by the claimant in the notice that is in the claimant's personal knowledge must be verified by statutory declaration.
  1. (5)
    The notice must be accompanied by a genuine offer of settlement or a statement of the reasons why an offer of settlement can not yet be made.
  1. (6)
    The notice must be accompanied by the claimant's written authority allowing the insurer to obtain information, including copies of documents relevant to the claim, and in the possession of -
  1. (a)
    a hospital; or
  1. (b)
    the ambulance service of the State or another State; or
  1. (c)
    a doctor, provider of treatment or rehabilitation services or person qualified to assess cognitive, functional or vocational capacity; or
  1. (d)
    the employer or a previous employer; or
  1. (e)
    persons that carry on the business of providing workers' compensation insurance, compulsory third party insurance, personal accident or illness insurance, insurance against loss of income through disability, superannuation funds or any other type of insurance; or
  1. (f)
    a department, agency or instrumentality of the Commonwealth or the State; or
  1. (g)
    a solicitor, other than where giving the information or documents would breach legal professional privilege.
  1. (7)
    The notice must also be accompanied by copies of all documents supporting the claim including, but not limited to -
  1. (a)
    hospital, medical and other reports relating to the injury sustained by the worker, other than reports obtained by or on behalf of the insurer; and
  1. (b)
    income tax returns, group certificates and other documents for the 3 years immediately before the injury supporting the claimant's claim for lost earnings or diminution of income-earning capacity; and
  1. (c)
    invoices, accounts, receipts and other documents evidencing the claimant's claim for out-of-pocket expenses; and
  1. (d)
    for a claimant other than a worker with a terminal condition or a dependant - the notice of assessment for the injury sustained by the worker."

Nature of Appeal

  1. [4]
    The Appeal to the Commission is by way of a hearing de novo in which the onus of proof falls upon the Appellant.

Standard of Proof

  1. [5]
    The standard of proof upon which an Appeal of this nature must be determined is that of "on the balance of probabilities".

Evidence

  1. [6]
    In the course of the proceedings, evidence was provided by four witnesses.
  1. [7]
    The Commission, in deciding to précis the evidence of the witnesses, and submissions, notes that all the material has, for the purposes of this decision, been considered in its entirety.

Witness Lists

  1. [8]
    The witnesses for the Appellant were:
  • Van Gestel; and
  • Dr Mark Paine (Dr Paine).
  1. [9]
    The witnesses for the Regulator were:
  • Dr Gregory Ohlrich (Dr Ohlrich); and
  • Dr Michael Coroneos (Dr Coroneos).

Appellant

Van Gestel

  1. [10]
    In March 2011 the Appellant commenced employment at the Mihi Tavern for Liquorland, a division of the Wesfarmers Group in the role of a bistro manager.  Duties undertaken by her included:
  • cash register;
  • ordering;
  • functions;
  • general cleaning; and
  • (at times) bar work.

Her hours of duty were divided into split shifts worked from 9.30 am to 2.30 pm and 5.00 pm to 8.30 pm during the week, finishing later on Friday and Saturday.

  1. [11]
    On 14 January 2012 she commenced work at 10.00 am and after completing her set duties she provided assistance to a staff member in the gaming bar by getting a bucket of ice from an ice machine.  The process usually relied on by the Appellant to obtain the ice required her to use a scoop to fill a 20 litre bucket.  On this occasion the ice machine had very little ice and as the scoop was not in the position it ought to have been the Appellant was required to lean into the ice machine and on filling the bucket (on her tippy toes), lost her footing and felt herself going backwards.  In an effort to stop herself going backwards she pulled back at which time she "felt like, a ripping and pulling sensation up my [her] right arm and into my [her] neck".
  1. [12]
    Advice was given to her supervisor regarding the incident and she then undertook her normal duties to the best of her ability despite not being able to do a lot of lifting and things she would normally do in the course of her role.  At the conclusion of her shift she headed home due to the level of pain her neck was having on her but returned later in the day to undertake her second shift.  The Appellant due to work being fairly busy did not take any steps to document the injury at that point of time however the injury was "reported up" the next day.  It was the case that due to the amount of pain she was experiencing that the duty manager sent her home early, at around 8.00 pm.
  1. [13]
    The Appellant reported for work on the next morning (Sunday) at 10.30 am and worked (again in pain) until 2.00 pm when she went home prior to assisting with the clean-up.  As a result of her condition she was unable to return to complete her second shift that day and also unable to attend for work on the Monday.
  1. [14]
    On the Monday she sought medical assistance at the Limestone Medical Centre where she described her symptoms on that day as being:
  • pain in the neck;
  • nausea;
  • thumping headache; and
  • visual distortion.

Those very symptoms remain to the present time where she continues to have a level of intolerance with bright lights, loud noises and at times needs complete darkness.  As a result of her symptoms she suffers episodes of migraine that can last for three days and had never experienced such a condition prior to the incident involving the ice machine.

  1. [15]
    In terms of family history the Appellant recalls her mother informing her that her father had experienced a migraine when he was about 24 years of age.  Her father at the time of the hearing was 73 years old and according to her evidence does not experience migraines.
  1. [16]
    In the past she had attended upon doctors complaining of headaches due to generally feeling unwell and lacking energy with those issues resolved by taking Panadol or Nurofen.  The Appellant at various times had a number of Magnetic Resonance Imaging (MRIs) precautionary as her mother has Multiple Sclerosis (MS) and the Appellant was previously admitted to the Rockhampton Base Hospital where they undertook a major investigation regarding the possibility of MS.
  1. [17]
    In the period between 2000 and 2004 the Appellant attended her medical practitioners on a number of occasions regarding her health and mental wellbeing due to circumstances relating to her personal life.  Prior to that she attended a specialist following a concussion when she was about 13 years of age but had no episodes of migraine from three months after that event.
  1. [18]
    Regarding the ice machine incident a medical certificate was issued and she attempted to return to work towards February/March 2012 but unfortunately the return to work aggravated the situation due to having to stand for periods of time that caused migraines.
  1. [19]
    Under cross-examination the Appellant gave evidence in terms of the ice machine and described the events leading to her injury.  The ice machine in height was just under her torso and the ice bucket was of about 20 litre capacity with a handle.  At the time the scoop was on the bottom of the machine which was the reason she was using her hand to scoop ice into the bucket [Transcript p. 1-14 to 1-15].  At the time she lost her balance she was standing on her tip toes.  She felt a ripping sensation from her hand up the back of her shoulder and into her neck [Transcript p. 1-16].  The Appellant who is right hand dominant felt pain in her right arm as well as a popping sensation in her neck.  There was no contact with her head or shoulder [Transcript p. 1-17].  The ice bucket at the time was about three quarters full [Transcript p. 1-18].
  1. [20]
    The Appellant recalled informing the bar staff employee (Belinda) that she had an incident and it felt like she had ripped something in her shoulder and neck due to there being hardly any ice in the machine [Transcript p. 1-18].  She attended the Limestone Medical Centre on the following Monday at the request of the employer and over time saw a number of different practitioners [Transcript p. 1-18].  The Appellant recalled seeing a Dr Chambers on 22 March 2012 and informing him that she had "no history of aura or migraines previously".  On the proposition of that not being strictly true, the Appellant replied "Well, I - they - I wasn't officially ever diagnosed with a migraine, so…" [Transcript p. 1-19].  On the migraine like symptoms in Rockhampton the evidence was "I got a funny metallic taste at the back of my mouth and I had some pins and needles.  He thought it might have been a stroke" [Transcript p. 1-19].  At that time of that injury she was 13 years of age and the recorded symptoms noted there were transient sensory disturbances, blurring, and loss of vision.  There had also been a loss of vision for about 10 seconds [Transcript p. 1-19].
  1. [21]
    The Appellant was unable to recall whether she was using a walking stick even though a Dr Ewart had recorded:

"She had a bizarre gait, using a four-point stick, and would lead with the weak left foot and walk with the left forefoot rather than the heel".  [Transcript p. 1‑20]

  1. [22]
    The Appellant conceded that the doctors at the Limestone Medical Clinic and Dr Paine had not been made aware of her history.  She believed there was no connection or relevance to the injury subject of this Appeal [Transcript p. 1-20].  The Appellant had never been diagnosed with MS or migraine but from time-to-time had headaches [Transcript pp. 1-20 to 1-21].  Her claim for workers' compensation was accepted by the Insurer for a neck injury but her claim for post‑traumatic migraine had been rejected [Transcript p. 1-21].

Dr Paine

  1. [23]
    Dr Paine a Consultant Neurologist had treated the Appellant on a number of occasions.  Numerous reports and correspondence prepared by him were tendered in the proceedings:
  • 19 January 2015 [Exhibit 2];
  • 19 January 2015 [Exhibit 3];
  • 30 March 2015 [Exhibit 4]; and
  • 18 May 2012 [Exhibit 5].
  1. [24]
    Dr Paine continues to treat the Appellant having last consulted with her on 21 September 2015, giving evidence of medication which had been prescribed by him a the present time.  That medication was identified as:
  • Flunarizine - 10 milligrams; and
  • Venlafaxine - 37.5 milligrams daily.
  1. [25]
    The medication prescribed related to the treatment of migraine which according to the evidence of Dr Paine was a specialty treated more likely by a Neurologist rather than as a Neurosurgeon "as a whole".
  1. [26]
    In terms of the various reports prepared by Dr Paine information contained in those reports included:

19 January 2015 [Exhibit 2]

  • symptoms arose following an injury at work in January 2012 when she was unable to get out of bed because of severe pain, later developing headaches accompanied by nausea and vomiting;
  • symptoms have continued since with the Appellant unable to return to work;
  • additional symptoms reported include shimmering in her vision, some vertigo and intermittent paraesthesia;
  • the Appellant had undergone extensive investigations including MRI of the brain and cervical spine;
  • neurological examination - revealed no abnormality;
  • reported a previous history suggestive of mild-moderate migraine; and
  • unable to resume her previous employment due to "ongoing disabling symptoms of post‑traumatic migraine including refractory chronic headache and vertigo".

19 January 2015 [Exhibit 3]

In this report Dr Paine provided advice to Lawyers acting for the Appellant which stated:

  • Appellant sustained a disabling form of post‑traumatic migraine following a relatively mild apparent cervical soft tissue strain;
  • thus far had only partially responded to migraine preventative treatment; and
  • problems in assessing potential disability claims with migraine is the lack of objective examination or laboratory radiological markers of the condition.

In response to a report provided by Dr Ohlrich he offered an interpretation of his conclusions where Dr Ohlrich had noted a mild cervical soft tissue injury from which there is no permanent disability and he does not accept that she has ongoing post‑traumatic migraine from the cervical injury.

Dr Paine agreed there was no ongoing disability relating directly to the cervical soft tissue injury however he believed the Appellant had post‑traumatic migraine following the relatively mild neck injury and despite no significant head injury her ongoing disability related to severe chronic migrainious symptoms which would not ordinarily be associated with any objective examination or neuroimaging findings.  Such symptoms do not necessarily settle within a six month period.

Migraine whether the conventional non-traumatic form or post‑traumatic form can become chronically intractable with a significant number of patients remaining disabled to the extent of not being able to work on a permanent basis.  Furthermore, post‑traumatic migraine following relatively minor/mild head or whiplash injury is a known entity as described by "Weiss et al at 3".

The following documents were attached to the Report:

  • Post‑traumatic Headache - Jay C. Erickson; Edward T. Neely; Brett J. Theeler; and
  • Post‑Traumatic Migraine:  Chronic Migraine Precipitated by Minor Head or Neck Trauma - Howard D. Weiss; Barney J. Stern; Jorge Goldberg.

30 March 2015 [Exhibit 4]

This Report was identified as a supplementary report to the previous reports of 19 January 2015 in which he opined amongst other things:

  • Diagnosis - Post‑traumatic migraine;
  • symptoms described were triggered by work incident of 14 January 2012;
  • relevant diagnostic tests already undertaken by Dr Minas Coroneos prior to the Appellant consulting Dr Paine;
  • Appellant incapacitated by ongoing symptoms due to post‑traumatic vestibular migraine and given symptoms have been present for in excess of three years are likely to remain chronic; and
  • Appellant does not have the capacity to undertake duties of bistro supervisor.

18 May 2012 [Exhibit 5]

This Report contained six pieces of correspondence from Dr Paine to a number of medical practitioners:

  • 18 May 2012 to Dr Miles Meyrick - Grange Road Medical Centre
  • -neurological examination completely normal;
  • -the Appellant has a form of post‑traumatic migraine which has evolved into daily chronic headache;
  • -previous history headache triggered by tiredness or being run down;
  • 3 August 2012 to Dr Hannah Gilchrist - Limestone Medical Centre
  • -information relating to issue regarding prescribed medication;
  • 2 November 2012 to Dr Hannah Gilchrist
  • -information regarding prescribed medication;
  • 11 January 2013 to Dr Hannah Gilchrist
  • -information regarding prescribed medication;
  • 8 March 2013 to Dr Jason Dawson - Grange Road Medical Centre
  • -information regarding prescribed medication;
  • 25 October 2013 to Dr Jason Dawson
  • -information regarding prescribed medication.
  1. [27]
    Under cross-examination Dr Paine acknowledged his specialty was that of neurology and that often times the Neurosurgeon would deal with cases that involve trauma [Transcript p. 1-27].  The initial referral from Dr Meyrick to Dr Paine stated the following:

"Thank you for seeing this woman who pulled her neck awkwardly at work on the 14th of the 1st and suffered from cervicogenic headaches, presyncope, nausea, paraesthesia in the upper limbs since the injury.  Cervical spine is unremarkable.  Has not responded to anti-inflammatories, physiotherapy or Lyrica.  I appreciate your opinion and MRI is pending".

Dr Paine conceded it was one of those cases where the general practitioner was a "bit stumped" and needed the input of a Neurologist [Transcript p. 1-27].

  1. [28]
    Dr Paine had been told the Appellant's previous history included "headache which she describes as dull and thudding and occurred not all that frequently but were triggered by tiredness or being run down" [Transcript p. 1-28].  In taking the Appellant's medical history it was his evidence there were no issues revealed apart from the previous headaches which he described as "sort of reasonably nondescript" [Transcript p. 1-28].  In terms of migraine the evidence was that 12 to 15 per cent of the population is impacted by the condition and there is usually a generic component although half the patients that present with the condition have no family history as such [Transcript p. 1-29].
  1. [29]
    Dr Paine was taken to a referral the Appellant was provided with from Dr Meyrick in 2004 which in part said:

"Thank you for seeing this 37 year old mother of four with a very long history of dizziness and blackouts".

Dr Paine was not informed about the Appellant's long history of dizziness or blackouts in the initial consultation and only became aware of this history in subsequent medical reports [Transcript p. 1-29].

  1. [30]
    In terms of diagnosing post‑traumatic migraine Dr Paine agreed it was a diagnosis of exclusion and it would have been helpful to have known about the Appellant's 2004 episodes [Transcript p. 1-29].  At 18 May 2012 whilst he had used the description "post‑traumatic migraine".  Dr Paine still had concerns at that time the condition may have been an analegic rebound headache which was a common condition [Transcript p. 1-29].  The previous headaches not disclosed to Dr Paine initially could be consistent with migraine according to his evidence [Transcript p. 1-30].
  1. [31]
    Dr Paine conceded he had no knowledge of Dr Meyrick's notes of 9 August 2004 where he described the Appellant's condition as:

"…dizzy and collapsing up to two times a month with blackouts after a superficial head injury" [Transcript p. 1-30].

Dr Paine gave evidence of having no awareness of the Appellant having suffered headaches, transient sensory, disturbances, blurring, loss of vision and left side in Rockhampton in 2000 [Transcript p. 1-30].  The symptoms displayed by the Appellant in 2000 were consistent with migraine [Transcript p. 1-30].

  1. [32]
    Dr Paine confirmed the Appellant had provided him with no history regarding the Rockhampton incident in 2000 and whilst it was an absolute profile of migraine he did not think it would have changed anything as he had kind of interpreted her previous headaches, although mild as probably migraine [Transcript p. 1-31].  On the incident regarding the ice-maker it was his evidence that the Appellant had not told him about a sensation shooting up her arm with the referral letter indicating she felt a pop in the neck.  There was no evidence of any blunt force trauma [Transcript p. 1‑32].  Dr Paine explained the aetiology of post‑traumatic headache as:

"…well basically it's a - it's a type of post‑traumatic headache.  A headache occurring after head and neck trauma is quite common, and there are various reasons, and one of the common causes is - is migraine".

  1. [33]
    Often there is a pre-existing history of migraine and people who have a history of migraine are more prone to this sort of reaction although clearly other types of headaches need to be excluded [Transcript p. 1-32].  In this particular case post‑traumatic referred to soft tissue neck injury [Transcript p. 1-32].  On the mechanism of the injury to her neck Dr Paine accepted he would defer to the expertise of another doctor with a more specific specialty [Transcript p. 1-32] and regarding the mechanism of injury was to a large measure reliant upon what the Appellant told him [Transcript p. 1-33].  Dr Paine identified the differences regarding Dr Ohlrich's report was the failure to recognise the entity of post‑traumatic migraine in the circumstances however such disagreements were not uncommon between doctors of the same discipline [Transcript p. 1-33].  The clinical studies attached to his report were acknowledged as small samples which did not descend into the detail of the trauma other than to categorise it in very broad terms [Transcript p. 1-33].  Further regarding the studies they dealt predominantly with motor vehicle collisions which Dr Paine accepted in general terms would involve greater velocity than slipping slightly forwards into an ice maker [Transcript p. 1-33].
  1. [34]
    In re-examination Dr Paine's evidence was despite not having a full medical history of the Appellant he thought there may have been a pre-existing history suggestive of migraine but obviously it was not "fleshed out" but there was other information there.  With regards to the trauma suffered by the Appellant he was unable to give evidence of having seen anything in quite the same circumstances as most of the time such trauma was associated with motor vehicle accidents.

Regulator

Dr Ohlrich

  1. [35]
    Dr Ohlrich, a Consultant Neurologist, examined the Appellant on 20 November 2014 and prepared a report (dated 24 November 2014) [Exhibit 6].  There was an examination of the Appellant as part of preparing the medico-legal report during which time she provided information regarding the mechanism of her injury.  As documented in his report she had been attempting to collect ice from the bottom of an ice machine with a bucket as the scoop normally used was at the bottom of the machine.  As she was leaning into the machine she lost her footing and at that time felt a popping and cracking which travelled from her right arm to the back of the neck.  There was nothing unusual with the description of "a tearing sensation" which in his opinion suggested some sort of muscle strain in the neck with some radiation into the arm.
  1. [36]
    In the course of the examination the Appellant informed him that she continued to work at the time due to staff shortages and went home early because of her symptoms.  The next day she had a bad headache and neck pain she said continued to the present time.  Careful notes were taken regarding the history of the neck pain and headaches where he was able to record that the headaches were said by the Appellant to be severe and associated with nausea, vomiting, photophobia, phonophobia and blurred vision which was consistent with migraine headaches with the Appellant seeming to be debilitated by the headaches which could be characterised as a form of migraine.
  1. [37]
    Dr Ohlrich gave evidence regarding migraine in which he opined:
  • there was a genetic basis with often but not always a family history;
  • more common in females often worse around their menstrual periods; and
  • can be triggered by dietary factors.
  1. [38]
    In the case of the Appellant her father had suffered from migraine on one occasion and whilst she had suffered from "normal" headaches associated with dehydration she denied any past history of migraine headaches prior to the subject injury.  In his report Dr Ohlrich documented a history taken from the Appellant's medical records which stated:
  • 27 July 2004 - sick on and off for last six months, headaches, constantly nauseated, symptoms associated with stress;
  • 9 August 2004 - "has been investigated 13 years of age - EEG for blackouts and headaches".  CT brain scan on 11 August 2004 reported to be normal;
  • 26 April 2000 - admitted to hospital with three month history of paraesthesia in left arm and leg and four year history of weakness in left leg.  Symptoms became dramatically worse after experiencing headache associated with total loss of vision for about 10 seconds.  There was a history of common migraine since the age of 13 and a history of psychosocial problems over the years.

Dr Ohlrich believed that there was a significant past history of migraine.

  1. [39]
    With regards to Dr Paine's reports where he posits this may be a case of post‑traumatic migraine whilst he respects his opinion he disagrees with it on the basis he does not believe that the Appellant's headaches were related to the minor neck injury and the length of time that has elapsed since the injury.  His assessment of the medical journal literature attached to Dr Paine's report was they had looked at 35 patients with what was regarded as post‑traumatic migraine, all of whom had no prior history of headaches or migraine and the cases did not document a cause and effect relationship to a mild head or neck injury.  The literature did appear to regard soft tissue injuries to the cervical spine in the same category.
  1. [40]
    In responding to a number of specific questions in his report, Dr Ohlrich formed the opinion that:
  • it was probable the Appellant's migraines related to constitutional or genetic factors and possibly emotional stress;
  • he accepted the headaches for a period of perhaps some months after the subject injury may have been related to the incident on 14 January 2012 however he did not consider that there was any relationship between her present headaches and the relatively mild injury of 14 January 2012; and
  • the term post‑traumatic migraine refers to headaches following a head injury - the Appellant did not sustain any head injury.
  1. [41]
    Under cross-examination Dr Ohlrich on the subject of medication relating to migraine indicated there were a number of different medications available and it was not unusual for patients to be trialled on an array of medications to assist in trying to eliminate the condition [Transcript p. 1-45].  Dr Ohlrich reaffirmed his earlier evidence of accepting the Appellant's headaches for a period of some months after the subject incident that related to a soft tissue injury to the cervical spine indicating he had seen a lot of patients with minor head trauma and neck trauma after an incident.  Those type of headaches were very commonly labelled in association with post‑concussion syndrome which he described as an "always dubious concept".  He was reluctant to accept headaches that persist for long periods of time [Transcript pp. 1-45 to 1-46].
  1. [42]
    Dr Ohlrich did not necessarily accept the content of the material annexed to Dr Paine's report regarding post‑traumatic migraine that does not settle within a six month period of time just as he has concerns accepting post‑concussional syndrome extending for longer than three months [Transcript p. 1-46].  On the proposition of post‑traumatic migraines not necessarily settling within a six month period Dr Ohlrich whilst acknowledging the literature before the Commission showed that as a very small percentage would be in this category he did not necessarily accept that outcome [Transcript p. 1-46].  Further he noted that none of the patients featured in the literature had previous histories of headaches [Transcript p. 1-47].  Dr Ohlrich accepted the notion that migraines can become chronically intractable generally but did not accept that migraine headaches can occur for years after a minor neck or head injury [Transcript p. 1-47].
  1. [43]
    On the Appellant's family history available he gave evidence the information available was limited but that the situation of migraine was relatively short lived [Transcript p. 1-47].  He believed that one migraine headache would be sufficient to say there was a family history of migraine and the fact her father who was in his seventies and had no migraine history beyond 24 years "may or may not assist" [Transcript p. 1-48].  The Appellant may have minimised the headaches she informed him about, implying that before the injury they were of no major consequence [Transcript p. 1-49].  The general practitioner records of 27 July 2004 he conceded contained:
  • no complaint of dizziness;
  • no tingling in her right arm;
  • no neurological impacts on her;
  • no impact on her vision; and
  • no sensitivity to light.

The Appellant's symptoms at the time were associated with a lot of stress [Transcript p. 1-49].  It was the case that when a person is under a lot of stress they can experience headaches with Dr Ohlrich describing "two varieties of headaches are often associated with migraine headaches being the severe headaches and the tension headaches being the milder headaches" [Transcript p. 1-50].

  1. [44]
    On the Appellant being investigated at 13 years of age for blackouts and headaches Dr Ohlrich was unaware that investigation occurred as a result of being concussed after falling over whilst roller skating [Transcript p. 1-50].  Dr Ohlrich had noted the Appellant's three month history of paraesthesia in the left arm and leg and a four year history of weakness in the left leg but was unaware that Dr Ewart had attributed the weakness in the left leg to an epidural four years earlier.  He acknowledged that he had not seen this correspondence [Transcript pp. 1-50 to 1-51].  It was his evidence that it was "pretty unusual" for somebody to have a weakness in the leg after an epidural and he just could not verify whether it was a legitimate cause or not [Transcript p. 1-51].  The investigations undertaken regarding the possibility of the Appellant having MS were accepted as being prudent in the circumstances [Transcript p. 1-52].  Dr Ohlrich offered examples (beyond genetic factors and trauma) of triggers for migraine that included physical exertion, hormonal factors, emotional stress and the "list goes on ad nauseam" [Transcript p. 1-52].  On whether he could offer a definitive diagnosis in terms of the Appellant's condition his only evidence was that:

"I can only express an opinion, and my opinion is based on a lot of experience with - in - what with patients with headaches, and I'm saying that it's more likely that her headaches relate to constitutional or genetic factors as would occur with migraine.  And also with her long past history of psychosocial issues, it's more likely that that's the cause of her current migraine headaches than that minor trauma three years ago" [Transcript p. 1-52]. 

Dr Ohlrich later removed the "long history" of psychosocial problems acknowledging he was unable to provide any further precision in that regard and that he would rely on a psychiatrist's opinion in that regard" [Transcript pp. 1-52 to 1-53].

  1. [45]
    Dr Ohlrich reaffirmed his evidence of accepting the Appellant's headaches and symptoms had been triggered by the mild trauma and she may have suffered post‑traumatic migraine but could not accept any relationship that went for three and a-half years [Transcript p. 1-53].  With regards to documentation from a Dr Coyne (Neurosurgeon) which stated that post‑traumatic migraines lie more in the area of expertise of a Neurologist than a Neurosurgeon it was Dr Ohlrich's position that whilst there was a crossover, Neurologists are supposed to know more about migraines than Neurosurgeons [Transcript p. 1-54].
  1. [46]
    In re-examination the evidence was that in his opinion Neurologists and Neurosurgeons see equally cases of head trauma, particularly minor head trauma with there being little difference between the two.  It was not uncommon for people with neck injuries - soft tissue injuries to have associated headaches and sometimes with migraine characteristics.

Dr Coroneos

  1. [47]
    Dr Coroneos, a Neurosurgeon, saw the Appellant on 26 March 2012 for the purposes of preparing a medico-legal report [Exhibit 7].  On the differences between a Neurosurgeon and Neurologist he described their functions in the following terms:
  • Neurosurgeon - sees patients with neurosurgical conditions such as brain tumours, head injuries, cerebral aneurisms, spinal conditions etc.
  • Neurologist - diagnoses neurological conditions which sometimes result in the discovery of conditions which require neurosurgical intervention and vice versa.

There was a crossover between the two disciplines and they see the same cohort of patients.

  1. [48]
    Dr Coroneos saw the Appellant on a second occasion (17 May 2012) where he ordered an MRI brain, MRI cerebral and cranial angiography for the purposes of excluding brain tumours, carotid dissection, cerebral aneurisms and other rare causes of headaches.  There was a little variation in her "circle of Willis" but nothing of an abnormality or clinical significance.
  1. [49]
    The Appellant had provided him with a history regarding the ice machine incident in the following terms:

"…she felt a pop sensation in her neck and a pain in the mid-lower part of her neck that she described as a crick".

She continued to work and over a period of time with continuing neck pain, developing dizziness, nausea, headaches and vomiting.

  1. [50]
    The Appellant completed a registration form prior to the consultation with Dr Coroneos in which there was no mention of pain passing up her arm or of previous headaches.  She reported to him that she continued to experience the previously mentioned symptoms but did not report any of the usual accompanying features of typical migraine such as visual obscurations although she reported dizziness, nausea and vomiting which was "very suggestive" of migraine.
  1. [51]
    Dr Coroneos' evidence regarding a "layman's" definition of a headache and migraine was that it was difficult because a headache is a symptom and a migraine is a diagnosis.  For a number of reasons he said that the term "migraine" was a very subjective diagnosis.  Without a diagnosis of an injury to the cervical spine with an abnormality to be seen at C1, C2 or C3 it was his opinion that a diagnosis of cervicogenic headache would be a dangerous one to make.
  1. [52]
    On reviewing the literature provided in the proceedings by Dr Paine he did not support the proposition of post‑traumatic migraine holding the opinion that the requirements of causation were never met in respect of that diagnosis of post‑traumatic migraine.  He further had difficulties in relating the onset of the Appellant's headache to be resultant from the described activity on 14 January 2012, on neurosurgical grounds.
  1. [53]
    Dr Coroneos in his report made a number of conclusions and recommendations that included:
  • "I have explained to the patient that I am not the treating medical practitioner, but I believe that further investigation is required as discussed above, to exclude a carotid artery dissection in the cervical region, consequent upon her bending over into the ice machine.  This is unlikely but it still needs to be excluded".
  • "If the examinations do not show any significant abnormality, then the diagnosis almost certainly is migraine headaches.  Further treatment and investigation by a Neurologist is a matter for the patient and her general practitioner, and not Wesfarmers Workers Compensation.  The right hand symptoms again are almost certainly due to carpal tunnel syndrome, and again this is not caused by bending over to get ice out of a machine.  Again this is a matter for the patient and her general practitioner".
  1. [54]
    Under cross-examination Dr Coroneos confirmed that the Appellant had provided some information regarding a history of headaches which included a reference to a shimmering of her vision [Transcript p. 1-62].  He accepted considering her symptoms that it would not be unreasonable that the most likely diagnosis would be that of migraine however neurosurgically it was very difficult to link the condition to the incident [Transcript p. 1-63].  On the material attached to Dr Paine's report it was his evidence that such material did not meet the required standard of being evidence based on the requirements in terms of causation [Transcript p. 1-63].  Dr Coroneos in managing the treatment of migraine would refer a patient to a Neurologist once he was satisfied the condition was not a neurosurgical condition [Transcript p. 1-65].  In this particular case his role had been to exclude any neurosurgical injury resultant from the incident [Transcript p. 1-65].

Submissions

Regulator

  1. [55]
    This was a narrow case with it being conceded the Appellant satisfied the test of being a worker pursuant to the Act with the only question being whether the injury which had been described notionally as post‑traumatic migraine ought to be accepted as an injury in accordance with s 32 of the Act.  Previously there had been an accepted claim for an injury to her neck and cervical spine which was of a soft tissue type however that injury is not the subject of these proceedings.
  1. [56]
    This case distils down to whether the separate injury of post‑traumatic migraine is referable to the events of 14 January 2012 with the onus upon the Appellant to establish a causal link back to the events at work.  The Regulator whilst acknowledging the notion she suffered from some headaches does not accept those headaches are related to the events of 12 January 2012.
  1. [57]
    The case turns on a determination of the tribunal as to which of the medical opinions are accepted.  Dr Paine as the treating specialist had likely become aligned to the patient and also partisan and whilst there is nothing sinister in respect of that, there needs to be a degree of circumspection applied in accepting the opinion of the treating specialist.  Dr Paine prior to having access to the Appellant's medical history had informed one of the general practitioners that her condition was probably post‑traumatic migraine and having "nailed his colours to the mast" kept with the diagnosis despite conceding it would have been more helpful to have had information relating to her medical history.
  1. [58]
    The evidence of Drs Ohlrich and Coroneos reflected that neither thought much of the condition of post‑traumatic migraine with both however acknowledging that there certainly can be some headaches associated with soft tissue injury although Dr Coroneos in particular questioned the mechanism of injury as being a low velocity mechanism.
  1. [59]
    The evidence before the proceedings reveals enough to suggest on the balance of probabilities that the Appellant's migraines relate to constitutional factors within herself and as such the Regulator does not accept they are referrable to the events of 14 January 2012.  The specialists who have given evidence on behalf of the Regulator both opined the mechanism of injury would not be sufficient to produce the condition and were dubious about a connection with her employment.  On the medical evidence each of the parties relied on a Neurologist and in the case of the Regulator there was additional specialist evidence from a Neurosurgeon.

Appellant

Written Submissions

  1. [60]
    The Appellant had lodged a Notice of Claim for Damages for an accepted statutory injury "neck strain" and for an unassessed injury "post‑traumatic migraine".  The claim for post‑traumatic migraine was not accepted by the Insurer and subsequently the Insurer's position was confirmed by the Regulator.
  1. [61]
    The status of the Appellant as a worker was conceded by the Regulator with the issues for determination being:
  • whether the Appellant sustained a personal injury;
  • that the personal injury arose out of or in the course of the Appellant's employment; and
  • that the employment was a significant contributing factor to the injury.
  1. [62]
    The Appellant's evidence in respect to the mechanism of injury and the onset of pain described in detail the events of 14 January 2012 whereby she sustained an injury whilst lifting an ice bucket out of an ice machine with the immediate onset of pain as a result of a "pop and tearing sensation to her neck".  She had been unable to complete her second split shift that day because of the pain and had experienced symptoms of pain, headaches, nausea, vomiting, shimmering of vision and tingling in the right hand.
  1. [63]
    The medical specialists (Drs Paine, Ohlrich and Coroneos) each opined that the Appellant suffered from headaches with migraine features immediately following the incident.  In the case of Drs Paine and Ohlrich (Neurologists) they said the migraines ("headaches" in the case of Dr Ohlrich) in the months following the incident were a result of the workplace incident.  The point of difference appears to be whether the continued symptoms experienced by her are related to the incident which would support in the circumstances that she suffered a personal injury.
  1. [64]
    In terms of arising out of or in the course of the worker's employment the matter of Lackey v WorkCover Queensland[1] was cited where Hall P had stated:

"…that the test posited by the words 'arising out of' is wider and than that posited by the words 'caused by' and that the former phrase, although it involves some causal or consequential relationship between the employment and injury, does not require the direct or proximate relationship which would be necessary if the phrase used were 'caused by', compare State Government Insurance Commission v. Stevens Brothers Pty Ltd (1984) 154 CLR 552 at 555 and 559 and Dickinson v. The Motor Vehicle Insurance Trust (1987) 163 CLR 500 at 505.  In any event, all of the factors pointed to in the evidence, the pain, the physical disability, the alterations to the appellant's family life, the absence of the opportunity to go to work and to socialise at work, the feeling of being left high and dry by the doctors by lack of diagnosis and treatment and the treatment metered out to her by WorkCover, are immediate consequences of either the physical injury to her leg itself or financial consequences flowing from that physical injury.  I rather think the stressors could be said to be 'caused by' the injury to the appellant's leg and certainly 'arose out of' the injury to her leg."

  1. [65]
    The medical records of Limestone Medical Centre confirm that the Appellant reported the onset of neck pain and right sided headache on 16 January 2012 with subsequent reports of suffering headaches on:
  • 19 January 2012;
  • 27 January 2012; and
  • 3 February 2012.
  1. [66]
    Dr Paine diagnosed the Appellant with post‑traumatic migraine which he relates to being triggered by the work incident on 14 January 2012.  In a report (dated 19 January 2015) Dr Paine rebutted the opinion expressed by Dr Ohlrich who did not accept the Appellant had ongoing post‑traumatic migraine from a cervical injury.  Dr Ohlrich had accepted that the headaches suffered by her in the months following the incident may have been related to the soft tissue injury to the spine resulting from the injury on 14 January 2012.
  1. [67]
    On the meaning of a significant contributing factor the Appellant cited a number of authorities including:
  • Newberry v Suncorp Metway Insurance Ltd[2] (with whom de Jersey CJ and Muir J agreed:

"The requirement of s 32 of the WRCA that employment that significantly contributes to the injury is apt to require that exigencies of the employment must contribute in some significant way to the occurrence to the injury…";

  • Croning v Workers' Compensation Board[3] where de Jersey P stated:

"(t)here may of course be two or more factors which might each be regarded as 'significant' contributors to the development of a condition.  The determination of which of a number of contributing causes is or are significant involves a factual exercise.";

  • Boyd v Q-COMP[4]; and
  • Groos v WorkCover Queensland[5].
  1. [68]
    It is arguable in this matter that tendrils of cause and consequence link the Appellant's condition to the incident in the workplace on 14 January 2012 for reasons that include:
  • prior to the incident of 14 January 2012 the Appellant had not experienced the symptoms and was able to work;
  • medical evidence on the whole links the headaches in the months following the incident to the incident; and
  • the incident occurred whilst the Appellant was at work and during the course of her employment.  It was the precipitating act for all that followed.

There was a clear temporal and causal link between the incident in the workplace and the Appellant's injury therefore the employment was a significant contributing factor to the injury.

  1. [69]
    In oral submissions Counsel for the Appellant submitted that the factual evidence supported she had established suffering an injury consistent with the described mechanism of injury.  The description of her symptoms and the immediate onset of pain were reported on the day it occurred.  There was no evidence to the contrary regarding the mechanism of injury and the medical evidence supports there was an injury.
  1. [70]
    Dr Paine as the Appellant's treating Neurologist since May 2012 diagnosed post‑traumatic migraine very early on and whilst he had been criticised in making such an early diagnosis had not shifted his opinion.  Dr Paine had a number of questions put to him in the course of cross-examination regarding the Appellant's history being suggestive of another causative factor but confirmed the history did not change anything in respect of his diagnosis.
  1. [71]
    Dr Ohlrich had rightly conceded in his written report the headaches suffered by the Appellant in the months preceding the incident were related to the incident but his main quibble was that he was unwilling to accept that three years later these symptoms may have related to the incident.  Under cross-examination he made a significant concession that the headaches preceding the incident (for some months) may have been post‑traumatic migraine.  Dr Ohlrich had suggested there were other causative factors including one occurrence where her father may have experienced migraines in his twenties.  It was submitted that there was not a sufficient basis for Dr Ohlrich to form such a conclusion.
  1. [72]
    Further regarding the Appellant's history there was no reporting of migraines only headaches which both Neurologists accepted occurred when people were going through stressful periods.  The Appellant suffered concussion as a 13 year old girl whilst roller skating but that was not necessarily suggestive of there being a migraine history.  Other references by Dr Ohlrich to other causative issues in particular psychosomatic matters were unable to be particularised and were not of a nature that could disrupt or disturb Dr Paine's diagnosis.  There was no evidence to support any other diagnosis additionally with there being evidence of the Appellant working as a bistro supervisor for five years previous to the incident without having any time off due to migraine.
  1. [73]
    The relief sought by the Appellant was that:
  • the Appeal be allowed;
  • the decision of the Regulator be set aside and in its place a decision that allows for the application to be accepted; and
  • the Regulator pay the Appellant's costs.

Conclusion

  1. [74]
    It was common ground that at all relevant times the Appellant was for the purposes of s 11 of the Act a "worker" and it is also not contentious that on 14 January 2012 the Appellant had suffered a soft tissue neck injury in the course of her employment for which a claim for workers compensation was made and accepted.
  1. [75]
    The basis of the appeal before the Commission was that as a consequence of the physical injury suffered by the Appellant on 14 January 2012 she had suffered an additional injury in the form of post‑traumatic migraine which had not been accepted by the Insurer and whose decision had been confirmed by the Regulator on 19 May 2015.
  1. [76]
    The matters for determination are whether the Appellant suffered a personal injury that arose out of or in the course of her employment and whether her employment was a significant contributing factor to the injury.

Personal Injury

  1. [77]
    Dr Paine the Appellant's treating Neurologist first saw her on 18 May 2012 where he made an initial diagnosis in the form of post‑traumatic migraine following a relatively mild cervical soft tissue strain however at the time he wondered about an element of medication overuse that may have contributed to the headaches.  In a report (dated 19 January 2015) Dr Paine mentioned that the Appellant had reported a history suggestive of mild-moderate migraine and at that date continued to have ongoing disabling symptoms of post‑traumatic migraine.
  1. [78]
    Dr Ohlrich saw the Appellant on 20 November 2014 for the purposes of preparing an Independent Medico-Legal Report in which he accepted that the Appellant's headaches for a period of some months after the subject incident of 14 January 2012 may have been related to the soft tissue injury to her cervical spine.
  1. [79]
    In March 2012 Dr Coroneos having seen the Appellant on 26 March 2012 in provided a report to the Insurer which he noted she reported symptoms of headaches, nausea, vomiting, shimmering of vision and tingling in the right hand, indicating the most likely diagnosis would be migraine headaches.
  1. [80]
    The medical evidence before the proceedings including the Limestone Medical Centre patient records is sufficient in nature for a finding to be made that the Appellant suffered a personal injury.  As to the nature of the personal injury the first recorded diagnosis was made by a general practitioner on 27 January 2012 in the form of a cervicogenic headache.
  1. [81]
    Dr Ohlrich's evidence in which he conceded the headache symptoms experienced by the Appellant in the immediate aftermath of the 14 January 2012 incident may have been attributable to the soft tissue injury of the neck sustained by the Appellant at least for some months following that injury would on the face appear supportive of a diagnosis of cervicogenic headaches.  Dr Ohlrich at no time was prepared to concur with Dr Paine's long time diagnosis of post‑traumatic migraine.
  1. [82]
    The Commission in accepting the Appellant suffered a personal injury in the form of headaches that were related to the soft tissue neck injury sustained on 14 January 2012 does not necessarily conclude that the headaches were post‑traumatic migraine but prefers the original diagnosis of cervicogenic headaches as the form of injury.

Did the personal injury arise out of or in the course of the Appellant's employment?

  1. [83]
    As a result of the work-related incident on 14 January 2012 where the Appellant injured her neck whilst obtaining ice from an ice machine she attended upon a general practitioner on 16 January 2012 at the Limestone Medical Centre where the patient's medical records on that day recorded the reason for the visit as being a "neck injury".  The records indicate that on a third visit (27 January 2012) the Appellant reported she had suffered headaches (which were diagnosed as cervicogenic headaches) since the injury and in a series of consultations that followed up to and including 16 March 2012 the medical records referenced a cervicogenic headache condition.
  1. [84]
    Dr Paine gave evidence that the symptoms experienced by the Appellant in relation to headaches, nausea and vomiting had arisen following the soft tissue neck injury sustained on 14 January 2012.  In a report (dated 18 May 2012) he stated:

"Overall, I think that Mrs Van Gestel has a form of post‑traumatic migraine which has evolved into chronic daily headache.  It is possible that analgesic overuse, particularly with codeine containing agents maybe aggravating the problem."

In a further report (dated 30 March 2015) he stated the Appellant's symptoms pertaining to her headaches were "triggered by the work incident of 14 January 2012" and continued to hold that opinion at the time of giving evidence in the proceedings.

  1. [85]
    Dr Ohlrich in his evidence-in-chief did not believe that the Appellant's headaches were related to the minor neck injury believing her migraines were caused by other factors including constitution, generic and/or emotional issues, however he accepted that her headaches for a period of perhaps some months after the 14 January 2012 incident may have been related to that incident.  Dr Ohlrich's opinion regarding the term post‑traumatic migraine was that such a condition would arise from a person sustaining a head trauma injury which was not the case in these particular circumstances.
  1. [86]
    In cross-examination he reaffirmed his evidence that in the immediate months following the incident of 14 January 2012 that the Appellant's headaches could have related to the work-related incident of 14 January 2012 and it was not uncommon for those types of headaches to follow such an incident but he was reluctant to accept that such headaches would persist for a long period of time.  He had difficulty also in accepting the context of material annexed to Dr Paine's report regarding post‑traumatic migraine not settling within a six month period.
  1. [87]
    In determining whether the personal injury sustained by the Appellant occurred in the course of employment there was evidence to support that the Appellant at the time of sustaining the soft tissue neck injury reported to the general practitioners, symptoms that included headaches, nausea and dizziness which lead to a diagnosis of cervicogenic headaches being made by those practitioners.  Dr Ohlrich was prepared to concede that the initial symptoms may have been attributable to the 14 January 2012 incident.
  1. [88]
    I am satisfied on the evidence available the Appellant has established that the headaches suffered by her immediately following the soft tissue neck injury on 14 January 2012 were on the balance of probabilities likely sustained in the course of her employment however there was insufficient evidence to support that the headaches which continued beyond some months post the incident of 14 January 2012 arose out of or in the course of the Appellant's employment.

Was the employment a significant contributing factor to the injury?

  1. [89]
    The Appellant's case was the condition diagnosed by Dr Paine as post‑traumatic migraine had been triggered by the soft tissue injury on 14 January 2012 and she continued to suffer from that condition at the time of the hearing of the Appeal.
  1. [90]
    In terms of having determined the Appellant suffered a personal injury in the form of cervicogenic headaches following the incident of 14 January 2012 it would on the medical evidence of Drs Ohlrich and Coroneos seem highly unlikely that such a condition would have continued for an extended period following the resolvement of the soft tissue neck injury.
  1. [91]
    On examination of the Appellant's previous medical history it suggests that she had a number of medical issues that warrant some form of consideration in these proceedings.  At the age of 13 the Appellant was injured in a roller skating accident and whilst she denied having been diagnosed with suffering migraine after that event, accepted there had been a time where she had suffered loss of vision, and there had been symptoms recorded of transient sensory disturbances and blurring.
  1. [92]
    In Dr Ohlrich's report he documented that the Appellant's medical history included:
  • "…a letter on file from Dr Ewart, Director of Medicine at Rockhampton Hospital, dated 26 April 2000.  It was stated at that time that she was admitted to hospital with a three month history of paraesthesias in the left arm and leg and a four year history of weakness in the left leg.  Dr Ewart states that these symptoms became dramatically worse after she had experienced a headache associated with total loss of vision for about 10 seconds.  He also states 'There is a history of common migraine since the age of 13'.  During her admission to Rockhampton Hospital in 2000 she had weakness in the left arm and left leg.  It was stated that 'She had a bizarre gait using a four point stick and would lead with the weak left foot and walk on the left forefoot rather than the heel'.  The cause of these unusual symptoms was not determined.  MRI brain scan at the time was normal.  Again Ms Van Gestel told me that at the time she was under considerable stress".
  • 27 July 2004 - "Sick on and off for the last six months.  Headaches every day, constantly nauseated".
  • 9 August 2004 - "Has been investigated 13 years of age - EEG for blackouts and headaches" - CT brain scan on 11 August 2004 was reported to be normal.
  1. [93]
    Dr Ohlrich had concluded on 24 November 2014 "that there was no relationship between her present headaches and relatively mild injury nearly three years ago" noting that the MRI and MRA head scans were normal.
  1. [94]
    Dr Coroneos examined the Appellant on 26 March 2012 a relatively short time after the incident of 14 January 2012 and stated in his report:
  • "I have explained to the patient that I am not the treating medical practitioner, but I believe that further investigation is required as discussed above, to exclude a carotid artery dissection in the cervical region, consequent upon her bending over into the ice machine.  This is unlikely but it still needs to be excluded".
  • "If the examinations do not show any significant abnormality, then the diagnosis almost certainly is migraine headaches.  Further treatment and investigation by a Neurologist is a matter for the patient and her general practitioner, and not Wesfarmers Workers Compensation.  The right hand symptoms again are almost certainly due to carpal tunnel syndrome, and again this is not caused by bending over to get ice out of a machine.  Again this is a matter for the patient and her general practitioner".
  1. [95]
    Dr Paine at the time of making his initial diagnosis of post‑traumatic migraine conceded he had not been provided with the Appellant's medical history regarding the incident in Rockhampton in 2000 which he accepted was an absolute profile of migraine.  The absence of such material was unlikely to have changed his opinion as he had previously interpreted her previous headaches as probably mild migraine.  Dr Paine also in evidence opined that often there is a pre-existing history of migraine where people are more prone to post‑traumatic migraine.
  1. [96]
    With regards to the medical evidence, I have preferred the evidence of Dr Ohlrich over that of Dr Paine in terms of their diagnostic opinions as Dr Ohlrich had the advantage of being able to consider the Appellant's full medical history at the time he examined her and the subsequent preparation of his report.  In the case of Dr Coroneos' evidence as a Neurosurgeon he comes from different discipline than the two previously mentioned Neurologists and accepting his evidence was more about ruling options out regarding the Appellant's condition, his evidence was considered in those terms.
  1. [97]
    On the material attached to Dr Paine's report (dated 19 January 2012) it was of limited benefit to the considerations of the Commission due to the specific nature of the Appellant's injuries not being similar to the persons included in those particular studies.
  1. [98]
    The post‑traumatic migraine condition suffered by the Appellant was not in my view an injury sustained in connection with her employment related soft tissue neck injury of 14 January 2012 and as such her employment was not a significant contributing factor to the injury.

Findings

  1. [99]
    On consideration of the evidence, material and submissions before the proceedings I find subject to requisite standard of proof that:
  • the Appellant suffered a personal injury in the form of headaches following the sustaining of a soft tissue neck injury on 14 January 2012 however that injury was not the post‑traumatic migraine injury the subject of the Appellant's Notice of Claim but that of cervicogenic headaches;
  • the personal injury suffered by the Appellant arose out of the course of her employment and was likely to have dissipated in the months following resolvement of the soft tissue injury;
  • the alleged post‑traumatic migraine condition had no causal connection with her employment and as such the employment was not a significant contributing factor to this injury; and
  • the Appeal is dismissed and the decision of the Regulator of 19 May 2015 is confirmed.  The claim is not one for acceptance.
  1. [100]
    The Appellant is to pay the Regulator's costs of and incidental to this Appeal to be agreed or failing agreement to be the subject of a further application to the Commission.
  1. [101]
    I order accordingly.

Footnotes

[1] Lackey v WorkCover Queensland (2000) 165 QGIG 22

[2] Newberry v Suncorp Metway Insurance Ltd [2006] QCA 48

[3] Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 100

[4] Boyd v Q-COMP (2005) 180 QGIG 1129

[5] Groos v WorkCover Queensland (2000) 165 QGIG 106

Close

Editorial Notes

  • Published Case Name:

    Van Gestel v Workers' Compensation Regulator

  • Shortened Case Name:

    Van Gestel v Workers' Compensation Regulator

  • MNC:

    [2016] QIRC 1

  • Court:

    QIRC

  • Judge(s):

    Thompson IC

  • Date:

    13 Jan 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Boyd v Q-COMP (2005) 180 QGIG 1129
2 citations
Jump To
Cite 1 - (2005) 180 QGIG 1129
Cite 2 - (2005) 180 QGIG 1129
Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 100
2 citations
Jump To
Cite 1 - (1997) 156 QGIG 100
Cite 2 - (1997) 156 QGIG 100
Dickinson v Motor Vehicle Insurance Trust (1987) 163 CLR 500
1 citation
Jump To
Cite 1 - (1987) 163 CLR 500
Groos v WorkCover Queensland (2000) 165 QGIG 106
2 citations
Jump To
Cite 1 - (2000) 165 QGIG 106
Cite 2 - (2000) 165 QGIG 106
Lackey v WorkCover Queensland (2000) 165 QGIG 22
2 citations
Jump To
Cite 1 - (2000) 165 QGIG 22
Cite 2 - (2000) 165 QGIG 22
Newberry v Suncorp Metway Insurance Ltd[2006] 1 Qd R 519; [2006] QCA 48
2 citations
Jump To
Cite 1 - [2006] QCA 48
Cite 2 - [2006] QCA 48
State Government Insurance Commission v Stevens Bros Pty Ltd (1984) 154 CLR 552
1 citation
Jump To
Cite 1 - (1984) 154 CLR 552

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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