Johnston v Workers' Compensation Regulator
[2017] QIRC 112
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- Unreported Judgment
- Johnston v Workers' Compensation Regulator[2017] QIRC 112
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Johnston v Workers' Compensation Regulator[2017] QIRC 112
Johnston v Workers' Compensation Regulator[2017] QIRC 112
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Johnston v Workers' Compensation Regulator [2017] QIRC 112 |
PARTIES: | Johnston, Nichole (appellant) v Workers' Compensation Regulator (respondent) |
CASE NO: | WC/2017/16 |
PROCEEDING: | Appeal against a decision of the Workers' Compensation Regulator |
DELIVERED ON: | 18 December 2017 |
HEARING DATE: | 11 and 12 December 2017 |
HEARD AT: | Cairns |
MEMBER: | Deputy President O'Connor |
ORDER: |
|
CATCHWORDS: | WORKERS' COMPENSATION – APPEAL AGAINST DECISION – where appellant has degenerative back condition – where appellant has pain as a result of aggravation of degenerative back condition – whether appellant's employment was the major significant contributing factor to pain – appeal dismissed |
LEGISLATION: CASES: | Workers' Compensation and Rehabilitation Act 2003 (Qld), s 32, s 558 JBS Australia Pty Ltd v Q-COMP (C/2012/35) Joanna Alicon Poulsen v Q-COMP (C/2011/29) Latoudis v Casey (1990) 170 CLR 534 Newberry v Suncorp Metway Insurance Limited [2006] 1 Qd R 519 |
APPEARANCES: | The appellant in person Mr S Gray, Counsel directly instructed by the Workers' Compensation Regulator |
Reasons for Decision
- [1]Nichole Marie Johnston was employed by the Wuchopperen Health Service Limited in Cairns from 19 May 2008 until she was made redundant on or about 30 January 2017. The appellant was initially employed as a domestic violence counsellor and thereafter as a Quality Administration Officer dealing with variety of compliance issues within the organisation.
- [2]The respondent accepts that the appellant was a worker for the purposes of the Workers' Compensation and Rehabilitation Act 2003 but in all other respects opposes the appeal.
- [3]It is contended by the appellant that on 3 August 2016 she sustained an aggravation of a pre-existing back injury whilst participating in the National Aboriginal and Torres Strait Islander Children's Day event. On the evidence of the appellant it was a requirement that all staff be on-site for the event and that they could volunteer for one of the activities on offer. The appellant told the Commission that she was approached by a member of the organising committee for the event and rostered on to work in a marquee to distribute promotional material including pamphlets, drink bottles, and lunch boxes.
- [4]The promotional materials were packed into bags on the previous day and stored in the Corroboree Room in the administration building. The Corroboree Room was located approximately one hundred and fifty metres across a concrete carpark from where the marquee was setup. As part of the setup requirements, the appellant stacked the boxes containing promotional bags onto a maintenance trolley. It was estimated by the appellant that the boxes weighed between five and seven kilograms each. Once the boxes were stacked, the appellant took the boxes from the Corroboree Room and manoeuvred the trolley though two narrow doorways and then outside and across the carpark. It took two trips to transport all of the boxes to the marquee. The evidence of the appellant was that the trolley was hard to steer and she was required to pull it across the carpark.
- [5]The appellant's family arrived at Wuchopperen at approximately 3.15 pm to 3.30 pm. She had been assisted in the afternoon by Deanne Hunter but Ms Hunter left work at around 4.00 pm. By then the appellant says that she was in a significant amount of pain.
- [6]At the conclusion of the event, the remaining boxes were loaded onto the trolley by the appellant's son, who was also an employee at Wuchopperen. The appellant then "dragged the trolley over to the building" for storage.[1]
- [7]The Commission was told that there was a snake or reptile handler located in a shaded area about two metres behind where the appellant was sitting in a deck chair. Children attending the event started to flock around the area and at one point one of the children yelled "Snake". The appellant said she jerked suddenly and jolted to turn around and look "…and to shoo the kids away, so the boxes didn't fall over, and I still noticed there was more strain on my back."[2]
- [8]Around 5.45 pm the appellant said that she thought that if she stood up she was "… going to go down on the ground because [she] was in quite significant pain when [she] attempted to stand up from [the] chair."[3] The appellant felt like she had pinched a nerve or had jarred her back.
- [9]She told the Commission that her back locked and that she was standing stooped over holding onto the shoulders of her husband. She was sweating and felt embarrassed and nauseous. The appellant's son, James, said that his mother was in significant pain and had to lie on the back seat of the car until they reached home.[4] Upon reaching home, the appellant showered and her husband applied Metsal Cream to her and gave her some Nurofen and Paracetamol.
- [10]The appellant said that she needed to be assessed and required something stronger for the pain. She initially said that on the evening of 3 August she contacted Dial-A-Doctor who came around, assessed her, prescribed Valium and Panadeine Forte, and recommended that she sleep on the floor. The date of the Dial-a-Doctor consultation was the subject of cross-examination. It was put to the appellant that her initial consultation with Dial-a-Doctor was on Sunday 7 August and not 3 August as she has initially suggested.[5] This was rejected by the appellant. But on the second day of the hearing, the appellant sought leave to reopen her evidence. Leave was granted and the appellant told the Commission that she was mistaken in relation to when Dial-a-Doctor was called and accepted that she did not see the doctor until 7 August 2016.[6]
- [11]The appellant said that she had previously aggravated her back by, for example, picking up washing baskets, carrying groceries and undertaking other domestic duties. The appellant had a history, not only of back pain but also of anxiety and depression which had resulted in periods of absence from work. She had commenced a new position with the organisation, and did not want miss work or upset anyone because she was aware of the workload and that it was a high-volume area.
- [12]The appellant told the Commission that her weight had caused her problems but since the time of the incident on 3 August she had lost approximately 20 kilograms.
- [13]On the morning of Thursday 4 August 2016, the appellant's husband showered her, dressed her and drove her to work. She said she worked until around 2.00 pm but left because see had continuing back pain. The appellant attended for work on Friday 5 August, but she did not report the injury to her supervisor on either day. She left work early on the Friday because of her back pain. However, the evidence of Ms Yeates, the appellant's immediate supervisor was that the appellant worked normally on Thursday 4 August and she left work early on Friday because she had accrued time in lieu.[7]
- [14]On the morning of Monday 10 August 2016, the appellant sent a text message to Ms Yeates to advise her that she would not be attending work. The text read:
"Lynette ive hurt my back n not sure if i will be able to come in yet. Im trying to get moving but very sore. Nichole"[8]
- [15]In a file note made on 11 August 2016 Ms Lynette Yeates recorded the following:
"Nichole Johnston phoned to advised (sic) that she had returned to the doctor about her back and the doctor had submitted a WorkCover certificate to WorkCover.
Nichole said that she had hurt her back at Children's Day (3 August) by sitting on a plastic chair handing out promotional bags to children. She felt the pain after the event."[9]
- [16]The File Note further records:
"Although Nichole has mentioned back pain since her return to work in March 2016, she did not state that sitting on the chair on children's day caused her any pain. The first notice I had of this was the phone call on 11 August."[10]
- [17]Neither of the medical certificates issued by Dial-a-Doctor on either 7 August or 9 August 2016 make reference to a work related injury.
- [18]On 11 August 2016 the appellant attended on Dr Singh, her General Practitioner. Dr Singh did not give evidence before the Commission as he had left the practice. Dr Farzad Vasei a General Practitioner with Omega Health Medical Centre gave evidence. His evidence was of limited relevance as he was not the treating doctor at the time of the injury on 3 August. He was able to say, however, that the appellant had attended at the practice on multiple occasions over the past two years for treatment for recurring episodes of low back pain.
The Specialist Medical Evidence
- [19]Dr Gavin Ballenden, Occupational Physician and Specialist and a member of the Medical Advisory Panel of WorkCover Queensland, prepared, following a content review, a report dated 2 September 2016. Whilst Dr Ballenden did not examine the appellant for the purposes of preparing his report he concluded that:
"…in the absence of a relevant mechanism and acute onset of traumatic pain, with regard to any of the mechanism suggested, meta-analysis of all the scientific information with respect to work and back pain and even disc herniation, suggests that there is insufficient scientific evidence, in this very well-studied condition, to attribute to the cause of the lumbar disc herniation, or pain to any minor trauma event, or ergonomic risk factor, such as the possible causes she describes."[11]
- [20]He goes on to conclude:
"What is known is that one cannot strain ones back sitting, turning whilst seated or standing, or pushing a trolley, unless an untoward event occurs and sudden onset of pain associated for example with that event."[12]
- [21]Dr Ballenden concludes that given the history provided by the appellant, there is no mechanism of causation or work aggravation irrespective of what the radiology shows.
- [22]In oral evidence, Dr Ballenden said:
"There is no evidence of a mechanism of codes of causation and while this person may well have developed pain at work, or in the course of her work, there is no medical or research support to suggest that this arose out of those activities."[13]
- [23]He later observed that:
"The consensus research concludes that mechanisms that suggest degenerative disc disease, disc herniation and back pain, occur from work, even labouring work, or have a relationship to disc degeneration, other than it might be painful for someone at work who has the condition. It's a hangover of medical mythology, rather than that which reflects the current epidemiological research evidence. So something that was believed at one time, even by doctors, but is no longer believed by doctors who follow updated evidence."[14]
- [24]The appellant attended on Dr Peter Dodd an Orthopaedic Surgeon for a medical examination on 18 November 2016. In his report of 27 November 2016 he opined:
"…This does show an anterior wedge compression fracture at L2, significant degenerative change and there is an anterior osteophyte between L2 and L3. There is also significant narrowing of L5/S1 disc space.
…
Her recent CT scan is dated 4 October 2016. This indicates again the compression fracture of L2 with degenerative change L2/3 with multilevel degenerative changes throughout the lumbar spine with persistent foraminal stenosis on the left side at L5/S1. There is degenerative change in the facet joints at the lower three levels."[15]
- [25]Dr Dodds was of the opinion as expressed in his report that:
"I find it difficult to indicate that employment is a significant contributing factor in development of her back injury. As mentioned above, she may have had back pain at work but I find it difficult to relate her current back pain to the extensive history she has given to me. It seemed like the pain came on over a number of hours after doing a number of activities for which she would normally be expected to do and which were part of her work contract. I did not think that simply sitting in an uncomfortable chair for a number of hours can be regarded as causing significant injury. Her ongoing systems are due to the pre-existing pathology, not helped by the fact that she is morbidly obese with a BMI in excess of 50."[16]
- [26]On the relationship between obesity and the appellant's back pain, Dr Ballenden said:
"There's no true relationship between obesity and the degenerative changes that is specific, in other words, that you can say the changes resulted from obesity, but there's a distinct relationship between obesity and chronic back pain."[17]
- [27]In a note of discussion with Dr Dodd prepared on 27 April 2017 he explained his report in the following terms:
"I further explain my opinion when I say that I do not think that Ms Johnston had a back injury that arose out of her employment, but rather she had an episode of back pain while she was at work and none of the activities that she described to me would, in particular, cause a back injury as such.
What I was saying is that just because you get pain at work, that does not necessarily mean that it is caused by work. Ms Johnston had simply notice that episode of pain whilst she was performing work duties.
Further, when I expressed the opinion that I found it difficult to indicate that employment is a significant factor in the development of Ms Johnston's back pain, what I was referring to was that, whilst I accepted that Ms Johnston had an episode where her back pain was aggravated, the onset of pain, or aggravation, is related to her pre-existing underlying condition becoming symptomatic, not that it was brought about because of the work activities she was required to perform.
In respect to Ms Johnston's medical history and the radiological findings of a pre-existing degenerative condition, a wedge compression fracture is most likely due to some osteoporosis and that the vertebrae just collapses because of excessive weight and degeneration. Those findings are long-standing and evident from 2013.
It is therefore my opinion that Ms Johnston has a demonstrated pre-existing degenerative condition which explains the onset of pain, rather than the work activities she was required to perform. Her pain is entirely consistent with deterioration of the degenerative condition and not her work duties.
That is why I expressed my opinion that Ms Johnston's employment is not a significant contributing factor to her personal injury."[18]
- [28]During the hearing, Dr Dodds was asked:
"HIS HONOUR: Doctor, it's the case, isn't it, that given that the underlying pre-existing pathology was in your view the cause of?
DR DODDS: Yes.
HIS HONOUR: The symptoms, not the – necessarily the activities that were performed. It could happen in a household situation or the normal domestic duties as well as work?
DR DODDS: Yeah, exactly. And I didn't think that the event as relayed to me was enough to warrant saying that it was a work-related injury."[19]
- [29]In re-examination, Counsel for the respondent asked:
"MR GRAY: Thank you. There was just, I guess, I think you have just answered what I was going to ask. But that's – in response to a question from Ms Johnston you said that it was your view it was the underlying degenerative condition was more important than the activities she was performing?
DR DODDS: Yes.
MR GRAY: And I think you've just answered it to his Honour that the activities really don't explain the symptoms. It's Ms Johnston's underlying condition, isn't it?
DR DODDS: That's it. Exactly. Yes."[20]
Findings and Conclusion
- [30]In order to succeed, the appellant must demonstrate to the requisite standard that for the purposes of s 32(3)(b) of the Act the aggravation of the pre-existing degenerative back condition arose out of, or in the course of, her employment at Wuchopperen and that her employment was a significant contributing factor to the injury.
- [31]In Poulsen v Q-COMP, Hall P wrote:
"If s. 32(1) of the Act did no more than recite the traditional formula "arising out of or in the course of the employment", the Appellant would have had a case. However, the Legislature has added a further requirement, viz., that the employment be a significant contributing factor to the injury. An applicant must now show a further element of causation. Further, whatever the precise content of "significant", it is apparent from the phrase "a significant contributing factor" that mere satisfaction that some element of contribution (minor was the adjective used by the Acting Industrial Magistrate) occurred is insufficient. Here, on the evidence, the Appellant established the type of case made out in Pleming v Workers' Compensation Board of Queensland. The Appellant failed to demonstrate that the contribution of the employment was of any significance whatever compared to the dominant contributing factor, viz., the Appellant's underlying condition."[21]
- [32]In JBS Australia Pty Ltd v Q-Comp, Hall P wrote:
"I should say to begin with that, I accept that the employment must significantly contribute to he occurrence of the injury. It is insufficient to establish that the employment was the setting in which the aggravation occurred or the background to its occurrence, compare Croning v Workers' Compensation Board of Queensland, at 101 per de Jersey P. It must be shown to be more probable than not that there is a significant causal relationship between the accident and the workers' post-accident condition."[22]
- [33]Section 32 of the Act requires that the employment is "…a significant contributing factor to the injury." Keane JA in Newberry v Suncorp Metway Insurance Limited wrote on the point:
"…The requirement of s. 32 of the WCRA that the employment significantly contribute to the injury is apt to require that the exigencies of the employment must contribute in some significant way to the occurrence of the injury which the claimant asserts was caused by the breach of duty of the person (not the employer) against whom the claim is made."[23]
His Honour later continued:
"That having been said, however, I should also observe in passing that the fact that an injury has been suffered arising out of employment, or in the course of employment, is not sufficient to establish that the employment has been "a significant contributing factor to the injury". To read s. 32 of the WCRA in that way would be to read the latter words out of the section, and in my respectful opinion to accord scant respect to the evident intention of the legislature to require a more substantial connection between employment and injury than is required by the phrases "arising out of employment" or "in the course of employment".[24]
- [34]The evidence of the appellant was that she sustained her injury on 3 August 2016 whilst working on a booth at the National Aboriginal and Torres Strait Islander Children's Day. The tasks that she was required to undertake were such that the appellant believed that they aggravated her pre-existing degenerative back condition which manifested itself in severe pain. The pain was, on her evidence, so severe that she needed to lay down in the back seat of the car when travelling home after the event.
- [35]Notwithstanding the severity of the pain, the appellant did not see a medical practitioner until Sunday evening. She returned to work on Thursday 4 August and Friday 5 August. The appellant did not report the injury immediately to her supervisor Ms Yeates even though she had an opportunity to do so on Thursday and Friday and in her text message on Monday 8 August.
- [36]The evidence of Ms Yeates, which I accept, was that she did not observe anything about the appellant's presentation on Thursday 4 August to suggest that she may have been in pain. Indeed, the evidence of Ms Yeates was that she worked a normal day. Ms Yeates also said that the appellant worked on Friday 5 August but left early, not because of severe back pain as suggested by the appellant, but because she had accrued time in lieu.
- [37]The appellant saw Dr Singh on 11 August 2016. He issued a Workers' Compensation Medical Certificate which recorded the mechanism of injury as siting on a non-ergonomic chair. Ms Yeates was advised on the same day that the appellant claimed she had sustained an injury on 3 August. An incident report was made on 15 August 2016.
- [38]I cannot conclude, having regard to the evidence before the Commission, that the appellant suffered a workplace injury on 3 August 2016.
- [39]It is not in dispute that the appellant has had a long and significant history of back pain. The evidence of both Dr Dodds and Dr Ballenden, which I accept, was that the appellant's underlying pathology was the cause of the onset of pain and not the activities that she was undertaking in the workplace. As Dr Dodds observed, the appellant's employment was not a significant contributing factor to her injury. Dr Ballenden also concluded, as stated above, that there was no mechanism of causation or work aggravation irrespective of what the radiology showed.[25]
- [40]In my view, the evidence supports the conclusion that the appellant's injury arose out of her degenerative back condition and that her work was not a significant contributing factor to the development of the injury. Her employment needs to be the real or effective cause of her injury and not merely the setting in which it occurred.
- [41]I cannot be satisfied that the appellant's employment was the real or effective cause of her injury, it follows therefore, that her appeal must fail.
Costs
- [42]The respondent sought an order for costs.
- [43]Nothing was put to the Commission by way of argument which would remove this matter from the ordinary case where costs follow the event.
- [44]The issue to be determined by the Commission is, in exercising its discretion to award costs, who should ultimately be responsible for the payment of those costs.
- [45]In Latoudis v Casey, Mason CJ wrote:
"It will be seen from what I have already said that, in exercising its discretion to award or refuse costs, a court should look at the matter primarily from the perspective of the defendant. To do so conforms to fundamental principle. If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings."[26]
His Honour, the Chief Justice further stated:
"Most of the arguments which seek to counter an award of costs against an informant fail to recognize this principle and treat an order for costs against an informant as if it amounted to the imposition of a penalty or punishment. But these arguments only have force if costs are awarded by reason of misconduct or default on the part of the prosecutor. Once the principle is established that costs are generally awarded by way of indemnity to a successful defendant, the making of an order for costs against a prosecutor is no more a mark of disapproval of the prosecution than the dismissal of the proceedings."[27]
McHugh J said:
"The rationale of the order is that it is just and reasonable that the party who has caused the other party to incur the costs of litigation should reimburse that party for the liability incurred."[28]
- [46]I can see no reason why I should not exercise my discretion under s 558(3) of the Act to order that the appellant pay the respondent's costs.
Orders
- [47]For the reasons advance above, I make the following orders:
- Appeal dismissed;
- The decision of the respondent dated 25 January 2017 is affirmed; and
- The appellant is to pay the respondent'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.
Footnotes
[1] T1-12, Ll 27-36.
[2] T1-13, Ll 4-17.
[3] T1-14, Ll 16-17.
[4] T1-42, Ll 14-17.
[5] T1-16, Ll 9-11.
[6] T2-13, Ll 6-18.
[7] T2-16, Ll 5-11.
[8] Ex. 7.
[9] Ex. 8.
[10] Ex. 8.
[11] Ex. 5.
[12] Ex. 5.
[13] T2-5, Ll 2-5.
[14] T2-8, Ll 45-T2-9, Ll 4.
[15] Ex. 9.
[16] Ex. 9.
[17] T2-5, Ll 42-45.
[18] Ex. 10.
[19] T2-33, Ll 16-27.
[20] T2-33, Ll 43-44.
[21] Joanna Alicon Poulsen v Q-COMP (C/2011/29), [10].
[22] JBS Australia Pty Ltd v Q-COMP (C/2012/35), [3].
[23] Newberry v Suncorp Metway Insurance Limited [2006] 1 Qd R 519, 529-30 [27].
[24] Ibid 533-34 [41].
[25] Ex. 5.
[26] Latoudis v Casey (1990) 170 CLR 535, 542-543.
[27] Ibid 543.
[28] Ibid 567.