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Weigel v Workers' Compensation Regulator QIRC 162
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Weigel v Workers' Compensation Regulator  QIRC 162
Workers' Compensation Regulator
Appeal against decision of the Workers' Compensation Regulator
29 October 2019
11 - 12 June 2019
WORKERS' COMPENSATION – APPEAL AGAINST DECISION – Whether the Appellant's psychological injury is secondary to an accepted physical injury – questions around multi – factorial causation – whether physical workplace injury and associated pain and stress triggered onset of psychiatric symptoms – nature of psychological injury – was employment the major significant contributing factor to the psychological disorder.
Workers' Compensation and Rehabilitation Act 2003 (Qld) s 11, s 32, s 235
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
Ebsworth v Workers' Compensation Regulator  QIRC 028
Carlton v Simon Blackwood (Workers' Compensation Regulator)  ICQ 1
Church v Simon Blackwood (Workers' Compensation Regulator)  ICQ 031
Lackey v WorkCover Queensland  QIC 43
MacArthur v WorkCover Queensland  QIC 21
Simon Blackwood (Workers' Compensation Regulator) v Adams  ICQ 1
Simon Blackwood (Workers' Compensation Regulator) v Mahaffey  ICQ 10.
Mr A Stobie of Counsel, instructed by McNamara & Associates, for the Appellant.
Ms L Willson of Counsel, directly instructed by the Workers' Compensation Regulator
Reasons for Decision
- Ms Weigel (the Appellant) was employed by Mulgowie Farming Company, formerly described as Vitalish Pty Ltd, between September 2015 and June 2016. Up until 12 January 2016 when she was moved off her manual duties, the Appellant was a line worker which meant that she worked in a packing shed undertaking duties involving processing vegetable crops.
- Ms Weigel is a "worker" within the meaning of s 11 of the Workers' Compensation and Rehabilitation Act 2003 (the WCRA).
- While working in this role, the Appellant developed left carpal tunnel syndrome and in January 2016 had a WorkCover claim for this injury accepted.
- On 29 March 2016, the Appellant underwent surgery described as a left carpal tunnel repair.
- On 25 August 2017, the Appellant filed a Notice of Claim for Damages for left carpal tunnel syndrome, secondary psychiatric injury and right carpal tunnel syndrome.
- The claim for secondary psychiatric injury and right carpal tunnel syndrome was rejected by WorkCover Queensland on 2 March 2018 and that decision was upheld in a decision of the Regulator dated 28 June 2018.
- It is the rejection of the claim for secondary psychiatric injury which is the subject of this appeal.
- The Respondent contends that there is no evidence to support that the Appellant sustained an 'injury' within the meaning of s 32(1) of the WCRA. That is, in relation to the psychiatric disorder, that the employment is the major significant contributing factor to the injury.
- This means that the question before the Commission is whether one of the unassessed injuries described in the Appellant's Notice of Claim for Damage dated 25 August 2017, namely, "Psychological injury – Depression", is an injury under the Act.
- Section 32 of the WCRA defines "injury" as follows:
32 Meaning of injury
- (1)An injury is personal injury arising out of, or in the course of, employment if–
- (a)for an injury other than a psychiatric or psychological disorder – the employment is a significant contributing factor to the injury; or
- (b)for a psychiatric or psychological disorder – the employment is the major significant contributing factor to the injury
- During closing submissions, the Respondent raised a jurisdictional issue.
- The Respondent's representative referred the Commission to the case of Mahaffey:
 The requirement for a worker to produce a Statement of Stressors does not arise from the Act or any Regulation. The requirement comes from the standard direction given in these matters. The purpose of this statement, is at least, twofold. First, it identifies for the respondent those matters which the appellant will be contending were the cause of the appellant's disorder. Secondly, it serves to confine the issues which must be considered on the appeal. Where such a direction has been given, then an appellant may not depart from the Statement of Stressors without leave.
- The Respondent submits that the Appellant's Statement of Facts and Contentions, ought to be considered in the same way and that it states that the injury described as "psychological injury – depression" in the Notice of Claim for Damages is an injury within the meaning s 32 of the WCRA.
- The Appellant's Statement of Facts and Contentions claims that the OPT (over period of time) date for the psychological injury is 11 October 2015 to 28 January 2016 and it is submitted by the Respondent that the Appellant cannot depart from their Statement of Facts and Contentions.
- The Respondent referred the Commission to the decision of Martin J, President in Church v Blackwood as authority for the proposition that on an appeal of this nature, which is conducted as a hearing de novo, the "review decision" being appealed sets the boundaries for the appeal.
- The Respondent submits that the issue to be decided is whether the Appellant suffered an injury pursuant to s 32 WCRA. Given the time frame provided for in the Notice of Claim, the injury has not been made out.
- Further authorities were provided to support that submission. In the matter of Simon Blackwood (Workers' Compensation Regulator) v Adams, Martin J commented that
it is an error for a Tribunal in cases where the boundaries of the application have been set by a document such as a Statement of Stressors to go beyond that boundary when making findings.
- The Respondent submits that the Commission does not have the jurisdiction to now consider whether the injury occurred at some other time in 2016 and states that such a finding would constitute an error of law.
- The Respondent additionally submits that s 235A of the WCRA prescribes that the injury date for OPT injuries is taken to be the date when the worker first consulted a relevant health practitioner about the injury and that this has not been made out.
- The Appellant in reply, submits that the Respondent is not entitled, given the way the Appeal has been instituted and argued, to raise the issue.
- The Appellant objects that the decision appealed from (decision of the Regulator dated 28th June 2018) is not in evidence, and there is no basis now for permitting it now to be tendered.
- The Appellant's other preliminary objection relates to the failure of the Respondent to raise the jurisdictional issue in its Statement of Facts and Contentions. The Appellant says that the Respondent should be required to adhere to the scope of its Statement of Facts and Contentions which means the jurisdictional issue should not be entertained.
- The Appellant submits that the jurisdiction of the Commission is established, the primary source of jurisdiction is the decision appealed from.
- While maintaining that the review decision of the Regulator is not in evidence, the Appellant refers to the decision and states that the review decision dealt with the psychiatric or psychological injury as though it had followed the physical injury.
- The Appellant states that:
the Review decision expressly adopted 13 July 2016 as the date of injury for the psychiatric or psychological injury, pursuant to s 235A of the Workers Compensation and Rehabilitation Act 2003, which is a deeming provision. That represents an abandonment of any proposition that, in fact, the psychiatric or psychological condition was sustained between 11 October 2015 and 28 January 2016.
- In this appeal, the Appellant's Statement of Facts and Contentions raises issues and deals with evidence purely inside the scope of the Review decision, and more specifically contemplating the onset of psychological symptoms between March and September 2016.
- I have considered the submissions of both parties and I have determined that Commission does have jurisdiction to hear this appeal. My reasons follow.
- The Notice of Claim for Damages (the Notice) lists under "Particulars of all injuries alleged to have been sustained because of the event: Left hand/wrist – Carpal Tunnel Syndrome, Right hand/wrist – Carpal Tunnel Syndrome and Psychological Injury – Depression". On page 7 of the Notice, points 10-13 deal with the psychological injury:
- The claimant is suffering psychological problems as a consequence of her physical injuries.
- The claimant has felt suicidal/attempted suicide on 3 occasions since sustaining her injuries. The claimant feels very depressed. The claimant sees a psychologist and for a period of time was required to check in with her mother on a daily basis.
- The claimant is unable to enjoy any social life as a result of the physical and psychological injuries she suffers. She no longer goes to the movies or restaurants, nor shopping with friends.
- The claimant becomes frustrated, anxious and depressed because she is unable to perform duties and undertake the employment she was able to do prior to the injury.
- In my view, these details on page 7 of the Notice make it clear that claim is for a psychological injury which followed the physical injury.
- The Statement of Facts and Contentions clearly sets out the Appellant's case that the psychological injury occurred arising out of the physical injury sustained between October 2015 and January 2016.
Nature of Appeal
- The Decision subject of this Appeal is the Review Decision of Workers' Compensation Regulator (the Regulator) dated 28th day of June 2018. In that Decision, the Regulator upheld the original decision of WorkCover Queensland to reject the Appellant's Notice of Claim for Damages dated 25 August 2017 in respect of a psychological injury associated with an accepted physical injury, sustained over a period of time 11 October 2015 to 28 January 2016.
- The Appellant's mood began to decline from mid 2016. In the weeks after the final surgical review, she began to experience suicidal ideation. The Appellant obtained psychological treatment.
- the Appellant developed a range of psychological symptoms including depressed mood, anxiety, irritation, diminished self-esteem and confidence, anhedonia, disrupted sleep, loss of appetite, loss of energy and motivation, reduced attention, concentration and libido.
- As a result of the effects of the carpal tunnel injury, including the limited benefit of surgery to the left wrist, ongoing pain and limitation, and cessation of employment, the Appellant developed a psychological condition described as Major Depressive Disorder.
- The Respondent's Statement of Facts and Contentions states at number 5 under "Facts":
- On 25 August 2017, the Appellant filed a Notice of Claim for Damages for injuries including left carpal tunnel syndrome and secondary psychiatric injury and right carpal tunnel syndrome.
- The Respondent's Statement of Facts and Contentions goes on to list under "Contentions" a list of additional stressors, general practitioner's reports, psychologist reports and the report of Dr Estensen in support of their position that the Appellant's employment was not the major significant contributing factor to her injury.
- This appears to be an acceptance that the psychological injury was sustained subsequent to the initial injury and I note that the Statement of Facts and Contentions also makes reference to the review decision of 28 June 2018 and seeks a decision that it be confirmed.
- I note that the Review decision is not in evidence, but it was referenced by each party and provided to me as an attachment to the Appellant submissions.
- The Review decision clearly identifies that the date of the psychiatric injury was 13 July 2016. The decision determines that the Appellant's psychiatric injury did not arise secondary to her accepted physical injury and that there were "well documented factors apart from the physical sequelae to her accepted work-related left carpal tunnel condition".
- There have been any number of opportunities for the Respondent to raise the jurisdictional issue prior to closing submissions, including in response to the Appellant's Statement of Facts and Contentions.
- I do not agree with the Respondent's submission that the Appellant has sought to depart from the Notice of Statement of Claim or their Statement of Facts and Contentions which in my view have consistently set out that the psychiatric injury was secondary to the physical injury sustained over the period of time from October 2015 to January 2016.
- Likewise, the Respondent's Statement of Facts and Contentions addresses the injury as a secondary injury.
- The Respondent's Outline of Submissions raises questions regarding the existence of medical evidence of the psychiatric injury occurring at either the period of October 2015 to January 2016 or beyond this and these questions were explored at the hearing.
- The Appellant commenced work for Mulgowie Farming Company in September 2015 having previously worked for that company for six months in 2009.
- The Appellant described her general attitude to work as positive and stated, "I love work, I'm a workaholic".
- She described the tasks she was undertaking as repetitive preparation of vegetables to eat and said that this involved getting the vegetables from the tonne bin, putting about 15-25 kilos of produce in a container to carry to the table and then taking the heads off broccoli and cauliflower all day in the one position.
- The Appellant described her hours of work as 25-35 hours a week working days of eight or ten hours.
- She said at the end of October, early November 2015 she began to experience pins and needles in both hands. When asked for how much of the day the symptoms were affecting her, she answered:
As soon as I'd wake up. I couldn't hold a cup of coffee because my hands would cramp. And then, warming up through the day it would ease, but then I'd be at work by then, so then they'd come back severely. By the end of the shift I couldn't feel my hands.
- When asked to describe the symptoms she was experiencing in her left hand and wrist, the Appellant said:
Pins and needles through the middle and ring finger, shooting up into my thumb and wrist and it ended up in my elbow, as well. Stabbing, throbbing.
- The Appellant stated that the symptoms began in October 2015 and became more severe.
- She said that she had similar pins and needles and throbbing on the right-hand side but that it wasn't as bad as the left.
- The Appellant explained that she went and saw her doctor in November and that she couldn't get in for the ultrasound on her wrist until January 2016, so she continued to work until then and was diagnosed with carpal tunnel in January 2016 when her employer moved her into the office as they had no light duties in the shed.
- In the office role, the Appellant said that she continued to experience pain and that she underwent surgery on the left hand in March 2016.
- The Appellant said that she only underwent the surgery on the left hand as it was approved by WorkCover.
- The Appellant says that she knew straight after the surgery that "it wasn't right", and that after the surgery, the wrist was sore and painful and worse than it had been prior to surgery.
- The Appellant stated that the day after the surgery, she commenced hand therapy and that the hand therapy continued for roughly eight months.
- She said that the pain in her left hand meant that it was difficult to chop, she wasn't able to cook for herself and she didn't see any point in putting herself through pain to cook and that as a result, she suffered severe weight loss.
- The Appellant said that at this time, she was living with a partner but that they were having issues at the time and she ended up leaving him in May 2016 because he would not help her at all following the surgery. She said that the primary reason she ended the relationship was that "we weren't in love anymore. We were just falling apart" and that while she knew the end of the relationship was coming, it still hurt, but that she had been the one who ended it, because it wasn't a good thing for her.
- The Appellant also gave evidence that in May 2016 her grandmother died. The Appellant said that she and her grandmother had been very close and that while her death was not unexpected and followed a long illness, it was still very hard.
- The Appellant told the Commission that she was still formally employed by Mulgowie Farming Company until around the middle of June 2016 though she had not worked since the middle of January 2016 when the light duties she was undertaking in the office became too hard on her hands.
- The Appellant stated that she was informed that her employment had ended via a letter in the mail and that this was unexpected as she was expecting to go back to work. Her evidence was that she knew it was a seasonal contract, but that it didn't have an end date or when the season would end. She described the farm as busy and said that her contract of employment may have been terminated because she hadn't been at work for six months.
- The Appellant says that when she was informed her contract of employment had been terminated she felt hurt and depressed and that she didn't know what she was going to do.
- At this point in June 2016, the Appellant said that she was suffering severe pain in her left hand and that the pain was preventing her from "dressing, cooking, and day to day life, really. Like, hanging washing, it was hurting because of my right hand as well".
- When asked about her mood or mental health at this time, the Appellant said,
I knew that – when my contract terminated, that really hit me hard. I got aggressive, I shut the world out, pretty much, because I don't – I didn't have the – I can't think of the word – drive to do things I would normally do. I isolated myself a fair bit, because I felt useless.
- The Appellant was asked about physical signs or changes of her day to day life and how she was looking after herself:
Appellant: Well, I wasn't cooking for myself. Sleep was pretty much non-existent – two to three hours, maybe, a night. Concentration seemed to fade away, because I just didn't care anymore.
Stobie: Just in relation to that concentration, what things were you finding that you were no longer applying yourself to or having difficulty with?
Appellant: Life really. I didn't want to be around anymore.
Stobie: Now, when you say you didn't want to be around anymore, did you have any specific thoughts in that direction?
Appellant: Yes, I've looked at suicide before.
Stobie: Right. And when you say you've looked at suicide before, when was that? In what context?
Stobie: And was that during the period we're talking about?
- The Appellant stated that she worried about "financial stress, the fact that I don't have a job, what am I going to do? My hand's stuffed, what can I do with my life?" and that it was not usual for her to have worries to this extent.
- She told the Commission that she stopped going out socially and became isolated and angry with herself and that she used to crochet and enjoy cooking but that she no longer does those things and if it weren't for her parents, she would not be here now.
- The Appellant said that she told her general practitioners about her worries and the changes to her life and that he referred her to see a psychologist.
- The Appellant said that she discussed her break-up, the death of her grandmother but mainly the loss of work and not being able to work again at the appointment with the first psychologist but that she only attended one appointment.
- At this time, in July 2016, the Appellant says that there had been no improvement in her left wrist and that she was continuing with hand therapy but it was not doing any good. At a further review with her hand surgeon in September, he told her that the symptoms were in her head and that there was nothing wrong with her hand and that this made her feel even worse. Further to that, he told her that there were no further treatment options for her.
- Following this, the Appellant's general practitioner referred her to see another psychologist, Sharon Foreman. When asked what she told Ms Foreman, she said "That I wasn't working, I can't get a job, that I was suicidal again, that I just didn't know where my life was going".
- The Appellant's WorkCover compensation claim was terminated in September 2016 and she gave evidence that her income at this point dropped from nearly $600 a week in compensation benefits to Centrelink payments of $250 a week.
- The Appellant said that at some point before September 2016 she was in a new relationship and was living with a partner and his three children.
- She gave evidence that she had not applied for any jobs prior to her WorkCover claim being terminated but that once she knew her employment had ceased, she applied for "roughly ten to fifteen jobs a week".
- The Appellant said that she underwent surgery for carpal tunnel in her right hand in September 2018 and that the surgery was a success.
- In terms of the left hand at the present time, the Appellant said:
It's sore. I've got numbness in the pinkie and ring finger permanently. A burning sensation all through my palm. It'll ache if I overuse it and it goes up into my elbow and shoulder. And I've also got muscle deterioration in my left shoulder, now.
- She said that she had obtained some work in a Chinese shop doing deliveries and meal preparation, but she was let go because she was too slow at the job because her hand would hurt. She also worked at a café for two days a week, eight hours a day but was let go because there was no work available.
- The Appellant said that being back at work improved her level of psychological functioning and wellbeing and that the termination of those jobs had the opposite effect.
- When asked about her current mental health condition and psychological distress, the Appellant said "If I didn't have my family behind me, like my partner and the three kids and my mum and dad, I don't think I'd go on much further, because there's no point. I've got nothing".
Appellant Evidence – Cross-examination
- The Appellant was shown the Notice of Claim for Damages and confirmed that the injuries claimed for were left hand wrist, right hand wrist and psychological injury and that the period of time the claim relates to is 11 October 2015 to 28th of January 2016.
- With regard to the right hand wrist injury, the Appellant agreed that this injury was not accepted on the basis that it was not work related.
- The Appellant agreed that the left carpal tunnel syndrome claim was originally accepted and ceased on 14 September 2016.
- It was suggested to the Appellant that she was told that the reason the claim was ceased was that the injury she was suffering was no longer work related and that in her left hand, she had some underlying pre-existing condition. The Appellant was unsure that this was what she was told and said that she could not remember.
- The Appellant agreed that she had nerve conduction studies done after her surgery but in answer to a question about whether the doctor told her that there's no reason for why she keeps experiencing pain, she said:
Appellant: There was one nerve conduction test that came back a false positive, so they were unsure what that meant, but I had worse pain after the surgery than I did prior to the surgery.
Ms Willson: But the doctor has told you there's no reason that they can identify why you have pain? Was that Dr Melsom? None of that evidence is before the Commission, I'm just asking you what you understand your condition to be?
Appellant: I was under the understanding that it was still my carpal tunnel.
Ms Willson: And you say in your evidence, despite your worker's compensation claim being finalised on the 14th September – let me just get this – 14th of September 2016, you had ongoing pain?
Ms Willson: In both your left and your right?
- The Appellant was shown her casual line worker letter of offer that she agreed she would have received before she started work or shortly after she started work and directed to a line in the letter that says: "Your employment with the employer will commence on Thursday the 17th of September 2015".
- She was then taken to a part of the letter regarding termination that says: "You are employed for the current winter and summer produce season across 2015 and 2016. The season is anticipated to finish on the 19th of June 2016 and this agreement will cease at this time".
- In reply, the Appellant said that the other Australian girl she was working with is still at the company now and started when the Appellant did.
- When asked if she accepts what the letter says regarding termination, the Appellant said that she thought the arrangement was that the employment could end or could continue and that despite what the letter says, she was told in the interview that the employment could continue.
- The Appellant agreed that at the time she started to develop some psychological symptoms in the middle of 2016, there were a number of different stressors in her life including the breakup of her three year relationship, the death of her grandmother and the fact that she was unable to work.
- It was suggested to the Appellant that the fact that she was unable to work had no connection to her carpal tunnel syndrome and she replied that she couldn't work because of her hand.
- When asked if it was quite clear from her letter of employment that she was going to finish work on 16th of June anyway, the Appellant said that she wasn’t intending on having carpal tunnel surgery and that her carpal tunnel was the reason she couldn't work.
- The Appellant was unable to provide evidence that she had applied for jobs and said that she had applied for them online and didn't print evidence of this as she wasn't asked to.
- It was put to the Appellant that at consultations with her general practitioner at various times from July to October 2016, she didn't mention that it was her left carpal tunnel that was causing her psychological stress. The Appellant was unable to recall the purpose of the doctor visits.
- When asked what the Appellant told the psychologists was the reason for her psychological condition, the Appellant replied that she would have talked about financial stress and that she was not able to work because of her hand and when asked if this was in evidence before the Commission, she replied that she did not know.
- The Appellant agreed that she had seen two psychiatrists in the lead up to this matter, Dr Estensen and Dr Shaikh.
- With regard to Dr Estensen's diagnosis of a major depressive disorder, it was put to the Appellant that based on what she had told him, Dr Estensen identified that her psychological change began to occur by the time she was told her contract had expired and would not be renewed. In response, the Appellant said:
No, it was before that.
I hadn't been in work for six months, so the depression was already in. Yes, it made it worse, being told that I don't have a job to go back to, but I wasn't – I didn't not have depression before I went and saw these doctors. I was isolated, I wouldn't go out, and that kind of thing.
- When asked about the notice of claim stating that she had attempted suicide three times, the Appellant stated that she had thought about suicide but had not attempted it.
- It was put to the Appellant that her statement that her social functioning was very low in May 2016 is inconsistent with establishing a new relationship within two months. In reply she said that her new partner had helped her throughout her breakup and that they had known each other for six years and that they were friends prior to the relationship starting.
- In response to questions regarding the commencement of a new relationship involving children at a time when the Appellant said she was socially withdrawn, the Appellant replied that "…they were helping me through it. They were another reason for me to go right, I've got something to live for".
- The Appellant was asked if she had told Dr Estensen about the new relationship and she replied that she could not remember exactly what she had told Dr Estensen.
- She recalled that they had talked about concentration and that in late 2016 her concentration was affected.
- When asked about her concentration and whether she was still suffering, the Appellant said:
Not as badly. I was still – I'm still depressed to this day. My concentration goes out the window. I can be walking somewhere and go right I want to do this, and I completely forget what I'm going to do.
- The Appellant was asked whether she had told Dr Sheikh that she could watch three or four movies in a row and whether this took concentration. She replied that she would be on the phone on the movies were on for noise or a picture.
- The Appellant was asked if she was still having pain in her left hand now and she replied that she was. It was put to her that she is not in any pain as she appeared to be quite animated in discussing how she did her work. She replied that she was in pain now and indicated her hand resting and said that the pain was why her hand was sitting like that.
- The Appellant was asked if the pain impacting on her mental health was the pain in her left hand and the pain in her right hand. She said that it was the pain in both hands but that she can do a little bit more now that her right hand had been operated on.
- The Appellant was asked if before her right-hand surgery her right-hand was as bad as her left:
Appellant: Not as severe, but it was still severe.
Willson: I mean, if you couldn't cut a steak?
Appellant: Yeah, no, I couldn't cut a steak. Like holding it and cut I couldn't…
Willson: And the reason you couldn't do that wasn't just because of your left-hand?
Appellant: No, it was because of my right and left.
- The Appellant agreed that she had been cleared by her doctor for a return to work program but said it was for light duties and they couldn't give her any light duties at Mulgowie Farms.
- Finally, the Appellant was asked about her stressors:
Willson: Now, you talked about various stressors in your life. Would it be fair to say that the major stressor for you was the fact that you weren't working?
Willson: Because the financial side of things was also stressful for you?
Dr Axel Estensen – Evidence in Chief
- Dr Estensen confirmed that he saw the Appellant on 23 March 2017 and had provided a report dated 28 July 2017.
- Dr Estensen agreed that his diagnosis was of a major depressive disorder and when asked about the external events or pressures acting on the Appellant answered:
I think the significant was her workplace injury and the consequence from her pain and physical impairment. I mean, I guess the other two things that came up in the interview was that her – I think it was her paternal grandmother had died around that time, and then there'd been the end of a three-year long relationship, I think – yeah, shortly after in mid-2016. And I mean, they may have been influential, but I think there was probably evidence before and after those events that fairly settled that her depressive illness was ongoing. So while they may have had some influence, I think by far the dominant factor was her workplace injury, her orthopaedic injury.
- With regard to the death of the Appellant's grandmother, Dr Estensen's evidence was that the death was not unexpected in that the grandmother was elderly and had a medical condition and that the Appellant had had a good relationship with her. He said that where you have a good relationship with someone, usually the bereavement passes more unremarkably and where a person may suffer grief, loss and sadness and may continue to miss a person, it would be unusual for a psychiatric disorder to develop secondary to it.
- Dr Estensen was asked if he had made any observations about the nature and significance of the breakdown of the Appellant's relationship as a stressor. He said that the Appellant did not seem overly distressed by the break up and that it had been instigated by her. Dr Estensen said that the Appellant made mention of the end of the relationship when talking about the impact that the injury had had on different areas of her life.
- When asked if he had drawn any conclusions, having looked at some medical records and reports of other practitioners as to the course and timing of the onset of the Appellant's condition and the significance that might have in relation to evaluating the stressors, Dr Estensen said that early on, Dr Melsom, the surgeon responded in the negative regarding any psychosocial factors, however at her final assessment, whole-person impairment assessment with Dr Mackay about six months later, Dr Estensen replicated Dr Mackay's comments in his report on the Appellant's emotional state: "Her demeanour regarding the injury appears catastrophically negative and unrecoverable". Dr Estensen said that this suggests a marked change in her mental state and the onset of her depressive illness.
- Dr Estensen said that the Appellant had found the termination of her employment contract "understandably distressing".
- Dr Estensen said that if, after her termination, the Appellant had moved very swiftly to alternative employment, this would have been a positive factor and that if she'd been able to find alternative employment this would have been beneficial to her mental state. He said it is hard to say how much it would have affected her progressing to depression and that her work history is of jobs requiring manual handling and that pain was an ongoing issue.
But if she found alternate meaningful employment, it would have been a positive factor with respect to either limiting the extent of her ensuing depressive illness, or you know, maybe potentially ceasing it or bringing it – you know, would have been a – something that assisted in her recovery.
Dr Estensen Evidence – Cross-examination
- Dr Estensen asked what, in his mind, was the workplace injury that in his view had caused the Appellant's psychological injury. He responded:
…well, she had carpal tunnel in both hands, and the treatment which she did have was not particularly successful with the resolution of her symptoms. And when she did have the – the – the surgery, the benefit wasn't ongoing. Certainly, subsequently, her pain was described as atypical…
- When asked if the injury related to the condition in both of the hands he replied that he recollected that that one hand was worse than the other, that the treatment did not bring about a resolution of the symptoms and that because of this there was ongoing pain.
- Dr Estensen is of the opinion that the Appellant's physical limitations were the starting point and that the termination of her employment, for whatever reason, would have aggravated the depressive illness that was underway at the time.
- When asked to further clarify his opinion, Dr Estensen said that the Appellant may well have developed a depressive illness as a result of pain and physical limitations regardless of her employment situation but that the termination of her employment may have enhanced the chances of a depressive illness developing.
- He said that he saw the Appellant about nine months after her employment ended and that the effects of unemployment would have been involved, but that he thought there was reasonable evidence that the depressive illness was underway by the time her contract was terminated.
- Dr Estensen said that it would seem her mood had declined a lot in the two month period between the July and September when she became aware her contract had been terminated and when her surgeon recommended no further treatment was available and she would have to adjust to her symptoms.
- Dr Estensen said that the Appellant's depressive illness would have started before her employment was terminated. He said:
It's a progress thing across time, and I don't think it's like she was doing completely well, then she found out she wasn't going to be re-employed and her mood declined. I think there were many factors, including by the time that she got to post-surgery and it wasn't as good as she thought it was going to be, her symptoms hadn't resolved as she had hoped, her mood would have started to decline. Then she finds out she's not employed, that would be significant. Then in September she goes sees the surgeon and the surgeon says, 'That's it. Live with what you've got. I can't help you any further.' And then she sees Dr Mackay, and you know, he notes that there's a big change in her emotional state at that time. I would imagine – I would have to check the dates, but I would assume that she would have seen Dr Mackay after her final appointment with Dr Melsom, because generally, you know, the surgeon has to – or the treating doctor has to sign off saying, 'I've done everything I can. We're at a stable and stationary point.' That then triggers the independent medical examination…that news, which is unrelated to her appointment status, would have been significant and influential in her – the generation of her depressive illness.
- While he agreed that there were multiple factors leading to the Appellant's depressive illness, Dr Estensen stated that the enduring issue for the Appellant was the hand injury and the physical limitations it imposes upon her and the consequence to self-esteem and confidence.
- When asked if he could name a date when the psychiatric injury first occurred, Dr Estensen said that the Appellant's downward slide into depression probably started within weeks or months of the initial hand surgery where it became apparent she wasn't responding or recovering in the way she had hoped:
I'm trying to be very specific so, say, four to six weeks after the surgery was the onset and, I think by September she had a, you know, moderate to severe major depression.
- Dr Estensen was asked if he was aware that the Appellant had commenced a new relationship and this changed his view about her degree of social function. The effect of his reply was that commencing a new relationship may be relevant to considerations of social functioning but does not necessarily equate to improved social function.
- Dr Estensen was asked to consider what the Appellant had reported to Dr Shaikh in terms of her activities in watching movies, playing computer games and paying bills or doing banking online. His opinion was that watching something doesn't necessarily equate to comprehending it and that the online activities referred to are not particularly cognitively challenging tasks.
- When asked if the Appellant's change of libido, good intimacy levels with her new partner and the excellent interaction she was having with her new partner's children would cause him to revise him opinion regarding her degree of social functioning or whole person impairment, the witness said that he would need to understand the "cognitive stuff" more fully before he was able to comment.
- Dr Estensen was asked if anything he had read in the Appellant's general practitioner or psychologist notes had surprised him in relation to his previous view of the Appellant's case. He said that it had not.
- With regard to when the depressive illness developed, Dr Estensen said that in probability, up to June 2016 following the surgery but before her employment was terminated, the Appellant would have had an adjustment disorder with mixed anxiety and depressed mood.
Dr Shaikh – Evidence in Chief
- Dr Shaikh was asked to consider his report dated 23 October 2017, specifically his conclusion of his examination of her where he said "I would reluctantly agree that a diagnosis of adjustment disorder and mixed anxiety is applicable".
- The witness was asked why he used the words "reluctantly agree":
I think because in Ms Weigel's situation, while she had psychological complaints, many of them were actually a reflection of her physical distress rather than a – a psychiatric situation, and I've given examples that she has problems with concentration or involvement in activities of interest. An adjustment disorder, the diagnosis applies in situations where there is a psychological response in excess of the expectations. And in Ms Weigel's case, I in many ways struggled to see her psychological response being in excess of expectations. I believed many of the psychological complaints were understandable, considering that she had reported some physical distress, and therefore my reluctance to diagnose – to – to – formalise that as a psychiatric disorder.
- The witness said that during the assessment on more than one occasion, the Appellant said that the pain was the primary factor interfering with her functioning and that if she were in no pain, she would be returning to work.
- Dr Shaikh said that he believed the Appellant's ongoing psychiatric complaints are linked to her perception of pain:
… the causation of the adjustment disorder is intimately related to the causation for the physical disorder…if it is deemed at any point in time her physical symptoms, they related to an underlying matter rather than the nominated work injury, then it would automatically be the case that in subsequent weeks or months the adjustment disorder would also deflect or default to be linking with the pre-existing underlying condition, rather than the work related injury.
- On cross-examination Dr Shaikh agreed that as far as causation is concerned, prior to the point where symptoms are attributed to the underlying disorder, at an earlier stage when the symptoms are related to a work injury, the adjustment disorder would have related to the work injury.
- On re-examination Dr Shaikh told the Commission that he believed the psychiatric injury first started in mid-2016.
- The Appellant refers to the matter of Lackey v WorkCover Queenslandand says that the decision makes it clear that there need not be a temporal, as well as causal, connection between the employment and the injury and that the injury only developed after the Appellant ceased work did not remove it from the definition under the Act.
- With further reference to Lackey, the Appellant says that the factors identified as relevant to the onset of the anxiety disorder included pain, physical disability, alterations to family life, absence of opportunity to attend and socialise at work, and feelings of abandonment in respect of medical practitioners and WorkCover.
- The Appellant says that in Lackey these factors were described as either "immediate consequences" or "financial consequences" of the physical injury, leading to the conclusion that employment was the major significant contributing factor causing the injury.
- The Appellant also raises a decision under the current legislation in the matter of Ebsworth v Workers' Compensation Regulator. In that case, there was a range of stressors including unresolved pain, an incapacity for work and matters consequential thereto including financial stress with the Appellant's case in that matter being that those were consequential stressors none of which would have occurred but for the primary back injury. These were described in the decision as "employment factors" and the issue for the Commission was whether these factors where dominant over non-employment factors.
- The Appellant was informed in June 2016 that her employment contract was not to be extended. The Appellant maintains that this was a direct result of her physical injury and that the employer was constantly busy and hiring new staff. The Appellant says that there was no reason to terminate her employment, apart from the reason that she was unfit for work.
- The Appellant says that she was hurt and depressed when she learnt she had lost her job and she reacted by shutting the world out.
- The Appellant was distressed following her final review with her hand surgeon in September 2016 when she was informed that no further treatment options were available. She began to experience suicidal ideation.
- As a result of the left carpal tunnel condition, the Appellant was unable to return to any employment for a long time and says she still suffers significant incapacity in that regard.
- The Appellant says that work has always been an important part of her self-concept and that she applied for numerous jobs without success.
- The Appellant also says that she continued to suffer from physical symptoms affecting her daily life including basic tasks such as getting dressed, cooking and hanging clothes on the line.
- The Appellant's mood declined from mid-2016 and she developed a range of psychological symptoms including depressed mood, suicidal ideation, anxiety, irritation, diminished self-esteem and confidence, anhedonia, disrupted sleep, loss of appetite, loss of energy and motivation, and reduced attention and concentration.
- The Appellant identified the three factors contributing to the decline in her mental health condition as: inability to work, the death of her grandmother, and the breakdown of the relationship with her partner in May 2016.
- The Appellant attributes her psychological condition to her inability to work.
- The Appellant's case is that employment is the major factor contributing to her injury, through the agency of the physical injury – directly in producing pain and other symptoms, in forcing her to undergo treatment that was unsuccessful, in preventing her from continuing with her employment, in incapacitating her, and also in exposing her to considerable financial and social pressure as a result of the loss of employment.
- Dr Estensen diagnosed a major depressive disorder and concluding that the employment related injury was the major significant contributing factor.
- The Respondent says that to succeed, the Appellant must satisfy the Commission that on balance, the aggravation period of the left carpal tunnel syndrome was the major significant factor in the development of her psychological injury. Whilst the onus is to be discharged on the balance of probabilities, the Commission must feel an actual persuasion before the alleged facts can be found to exist.
- The evidence supporting the Appellant does not have to prove certainty and "more probable" means no more than that.
- There must be objective facts to enable the inference to be drawn, beyond mere speculation or conjecture, and which requires a court to reach a level of actual persuasion.
- The Respondent submits that the Appellant's accepted physical injury is not the major significant contributing factor to the development of the psychological or psychiatric condition.
- The Respondent says that whether and to what extent the Appellant's employment contributed to the development of the psychological injury involves an examination of the onset of associated pain and other adverse effects that arose in the OPT date listed 11 October 2015 to 28 January 2016.
- There is no contest as to whether the Appellant suffered an aggravation of left wrist carpal tunnel, however this work-related aggravation was deemed to end on 14 September 2016. Any residual sequelae cannot be considered to have arisen out of employment. No appeal was made on WorkCover's determination of that decision.
- The Respondent submits that there were other significant stressors in the Appellant's life that is relevant to consider when balancing how much weight to give to the stressor or the aggravation of the left carpal tunnel syndrome (which ceased on 14 September 2016).
- There is no evidence before the Commission of the Appellant's alleged attempts to obtain work.
- The Respondent states that another reason the Appellant may have trouble finding work is that she cannot read.
- The Respondent submits that the Commission cannot be satisfied that the aggravation period of the left carpal tunnel syndrome was the major significant factor in the development of her psychological injury or any alleged sequelae.
- With regard to medical evidence of the date of onset of the psychological injury, the Respondent says that there is simply no medical evidence before the Commission that during the OPT period, the aggravation of the left carpal tunnel condition was mentioned to any medical practitioner as causing a psychological condition.
- The Appellant gave evidence that she attended her general practitioner and two psychologists in relation to her medical conditions. None of these witnesses were called.
- The only medical evidence led by the Appellant is the report of Dr Estensen dated 28 July 2017.
- The Respondent submits that the conclusion that must be drawn from the Appellant's failure to lead such evidence from more contemporaneous sources is that those witnesses' evidence would not have assisted the Appellant.
- On the evidence before me, there is no doubt that the Appellant has suffered a psychiatric injury.
- The question I have to consider is whether the left wrist carpal tunnel injury is the major significant contributing factor to the development of this psychological or psychiatric condition.
- I will first deal with the only medical evidence before the Commission, that of Dr Estensen and Dr Shaikh.
- Dr Estensen agreed that there were multiple factors leading to the Appellant's depressive illness but was consistent in his view that the dominant factor leading to the Appellant's psychological condition was the left wrist injury, the outcome of the surgery and lack of employment. In his view, the injury and the lack of employment were unable to be separated from each other.
- In commenting on other stressors experienced by the Appellant at the time, namely the death of the Appellant's grandmother and the break down of her relationship, Dr Estensen's evidence was to the effect that neither of these events were in his opinion dominant causes of her psychological injury.
- When asked about the impact of loss of employment on the Appellant, Dr Estensen said that the depressive illness would have started before her employment was terminated but that the termination of her employment, for whatever reason, may have enhanced the chances of a depressive illness developing.
- Dr Shaikh reluctantly agreed that a diagnosis of adjustment disorder and mixed anxiety was applicable. He also said that he believed the:
Causation of the adjustment disorder is intimately related to the causation for the physical disorder… if it is deemed at any point in time her physical symptoms, they related to an underlying matter rather than the nominated work injury, then it would automatically be the case that in subsequent weeks or months the adjustment disorder would also deflect or default to be linking with the pre-existing underlying condition, rather than the work-related injury.
- Both expert witnesses before the Commission agree that the Appellant has a psychological or psychiatric injury and that it arose out of the work-related injury.
- The Appellant gave evidence about the effect the left wrist injury had had on her. She acknowledged other events which had taken place in her life, including her grandmother's death, her relationship breakdown, her new relationship and the carpal tunnel in her right wrist.
- The effect of the Appellant's evidence was that the left wrist pain had impacted her physical capacity to work and and the inability to work had been a major stressor. The injury had also impacted on her life outside of work and this, in turn had also impacted on her level of psychological functioning.
- It is clear from her evidence that the Appellant enjoyed her work and that she intended to continue working if not for the left hand wrist injury and that the inability to work as a result of the injury has also been a significant contributing factor to her psychological injury.
- While her letter of appointment listed June 2016 as the date her employment contract would cease, I accept that the Appellant had reason to think that there may have been ongoing work for her had she not been injured.
- In the circumstances described above, it would seem to me that the symptoms, employment and life changes experienced by the Appellant following the injury and the associated surgery, arose out of the work-related injury.
- Given Dr Estensen's expert opinion about the impact of the non-employment related factors of the death of her grandmother and the breakdown of her relationship, my view is that these factors cannot be considered to outweigh the consequences of the work-related injury.
- When considering the expert evidence and the evidence of the Appellant, I am persuaded that the major significant contributing factor to the Appellant's psychological injury is the work related left wrist injury.
- The Appellant has sustained an injury of a psychiatric or psychological nature, that injury being depression.
- The Regulator's decision of 28 June 2018 is set aside.
- The application for compensation made by the Appellant is one for acceptance.
- The Respondent is to pay the Appellant's costs of and incidental to the appeal.
 T1-3, ll 14-17.
 T1-3, ll 23-24.
 T1-3, ll 27-28.
 Simon Blackwood (Workers' Compensation Regulator) v Mahaffey  ICQ 10.
 Simon Blackwood (Workers' Compensation Regulator) v Mahaffey  ICQ 10 at .
  ICQ 31.
  ICQ 1.
 Simon Blackwood (Workers' Compensation Regulator) v Adams  ICQ 1 at .
 Carlton v Simon Blackwood (Workers' Compensation Regulator)  ICQ 1
 Carlton v Simon Blackwood (Workers' Compensation Regulator)  ICQ 1 at  citing British Launderers' Research Assn v Borough of Hendon Rating Authority  1 KB 462 at 471.
 Church v Simon Blackwood (Workers' Compensation Regulator)  ICQ 031 at .
 Appellant submissions filed 19 June 2019 at .
 T1-5, ll 30-32.
 T1-6, ll 35-38.
 T1-6, ll 40-44.
 T1-7, ll 39,40.
 T1-9, line 2.
 T1-11, ll 14-16.
 T-1-11, ll 18-24.
 T1-11, ll 26-42.
 T1-11, ll 44,45.
 T1-13, ll 26-29.
 T1-14, ll 30-33.
 T1-15, ll 6-10.
 T1-15, ll 30-32.
 T1-17, ll 1-17.
 T1-18, ll 5-16.
 T1-18, ll 18-24; Exhibit 4.
 T1-20, ll 31-34.
 T1-21, ll 20-37.
 T1-22, ll 4-7.
 T1-23, ll 1-8.
 T1-23, ll 45,46; T1-24 L1.
 T2-3, ll 3-13.
 Exhibit 2, page 5.
 T2-4, line 43.
 T2-5, ll 6-11.
 T2-5, ll 19-29.
 (T2-11 ll8-28)
 (T2-12 ll41-44)
 (T2-23 ll1-10)
 (T2-23 ll12-22)
 (T2-24 ll1-12)
  QIC 43.
  QIRC 028.
 Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at ; Cited in Tyson Alborough v Workers' Compensation Regulator  QIRC 110 at .
 MacArthur v WorkCover Queensland  QIC 21; Cited in Tyson Alborough v Workers' Compensation Regulator  QIRC 110.
 Jones v Dunkel (1959) 101 CLR 298.
 T2-24, ll 5-12.
 Lackey v WorkCover Queensland 164 QGIG 22; Groos v WorkCover Queensland  QIC 52.
- Published Case Name:
Kelly-Ann Weigel v Workers' Compensation Regulator
- Shortened Case Name:
Weigel v Workers' Compensation Regulator
 QIRC 162
29 Oct 2019