Austin v Workers' Compensation Regulator
[2025] QIRC 110
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- Unreported Judgment
- Austin v Workers' Compensation Regulator[2025] QIRC 110
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Austin v Workers' Compensation Regulator[2025] QIRC 110
Austin v Workers' Compensation Regulator[2025] QIRC 110
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Austin v Workers' Compensation Regulator [2025] QIRC 110 |
PARTIES: | Austin, Julie Ann (Appellant) v Workers' Compensation Regulator (Respondent) |
CASE NOS: | WC/2023/39 |
PROCEEDINGS: | Appeal against decision of the Workers' Compensation Regulator |
DELIVERED ON: | 7 May 2025 |
HEARING DATE: | 12, 13 and 14 February 2024 |
MEMBER: | O'Connor VP |
HEARD AT: | Cairns |
ORDER: |
|
CATCHWORDS: | WORKERS' COMPENSATION – ENTITLEMENT TO COMPENSATION – where Appellant was employed as a tour desk agent/operator with Accor Australia & New Zealand Hospitality Pty Ltd at the Pullman Hotel in Cairns – where Appellant lodged an application for compensation in relation to a lower back injury whilst lifting bags – where WorkCover accepted her application for an aggravation of pre-existing pathology at L4/5 – where Appellant lodged a notice of claim including a claim for an unassessed psychiatric/psychological injury – where WorkCover rejected claim for the unassessed psychiatric/psychological injury as not being work related – whether Appellant has sustained a personal injury – whether the personal injury has arisen out of, or in the course of, her employment with the employer – whether the Appellant's employment was a significant contributing factor to her injury – whether the Appellant has sustained a psychological injury within the meaning of s 32 of the Workers' Compensation and Rehabilitation Act 2003 |
LEGISLATION: | Workers' Compensation and Rehabilitation Act 2003, s 32, s 558 Industrial Relations Act 2016, s 451 , s 531 Industrial Relations (Tribunals) Rules 2011 , r 41, r 45 |
CASES: | Adelaide Stevedoring Company Ltd v Forst (1940) 64 CLR 538 Avis v WorkCover Queensland [2000] QIC 67; (2000) 165 QGIG 788 Binns v Thomas Borthwick & Sons [2005] QSC 237 Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 Charters Towers Regional Council v Workers' Compensation Regulator [2019] QIRC 27 Chattin v WorkCover Queensland (1999) 161 QGIG 531 Church v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 031 Groos v WorkCover Queensland [2000] QIC 52; 165 QGIG 106 Harris v Caladine (1991) CLR 84 Holtman v Sampson [1985] 2 Qd R 472 Kavanagh v Commonwealth (1960) CLR 547 Kim v Workers' Compensation Regulator [2019] ICQ 14 McGrory v Medina Property Services Pty Ltd [2017] QCA 234 Newberry v Suncorp Metway Insurance Ltd [2006] QCA 48; (2006) 1 Qd.R 519, Obstoj v Van de Loos (Unreported, Supreme Court of Queensland, Connolly J, 16 April 1987). Qantas Airways Ltd v Q-Comp (2009) 191 QGIG 115 Quilter v Mapleson ; and Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan 46 CLR 73 Q-Comp v Green (2008) 189 QGIG 747 Reg v Pilgrim (1870) LR 6 QB 89 Ramsay v Watson (1961) 108 CLR 642 Shi v Migration Agents Registration Authority (2008) 235 CLR 286 State of Queensland (Queensland Health) v Q-COMP and Beverley Coyne, 172 QGIG 1447 Taylor v Workers' Compensation Regulator [2017] QIRC 6 Yousif v Workers' Compensation Regulator [2017] ICQ 4 |
APPEARANCES: | Mr M. Glen, Counsel instructed by Lehmann Featherstone Lawyers for the Appellant. Mr S. McLeod, KC directly instructed by the Workers Compensation Regulator |
Reasons for Decision
- [1]Ms Julie Ann Austin ('the Appellant') appeals a decision of the Workers' Compensation Regulator ('the Respondent') dated 3 March 2023 which confirmed the decision of WorkCover Queensland ('WorkCover') to reject the Appellant's application for workers' compensation pursuant to s 32 of the Workers' Compensation and Rehabilitation Act 2003 ('the WCR Act') in respect of her psychiatric/psychological injury.
Background
- [2]The Appellant was employed as a Tour Desk agent/operator with Accor Australia & New Zealand Hospitality Pty Ltd ('Accor') working at the Pullman Hotel in Cairns.
- [3]On or about 14 March 2019 the Appellant lodged an application for compensation with WorkCover in respect of a lower back injury which she claims occurred whilst lifting bags in the course of her employment with Accor on 6 March 2019. WorkCover advised the employer on 27 March 2019 of their decision to accept the application as a provisional diagnosis of musculoskeletal lower back injury.[1]
- [4]After assessment of all the medical information, WorkCover advised the Appellant on 17 March 2020 her application was accepted as a work-related aggravation of pre‑existing pathology at L4/5 (asymptomatic) and on 10 July 2020 the Appellant was issued with a notice of assessment.[2]
- [5]On 24 February 2022 the Appellant lodged a notice of claim for damages with injuries described as "Lower back - bursitis - lateral both hips; lower back - annular tear L4/5, soft tissue and Gut - Gastritis".[3]
- [6]On or about 20 April 2022, the Appellant lodged a notice with WorkCover for the aggravation of pre-existing pathology at L4/5 and included a psychological injury described as depression.[4]
- [7]By decision of 7 September 2022, WorkCover rejected the Appellant's claim for the unassessed psychiatric/psychological injury as defined in s 32 of the WCR Act. On 3 March 2023 the Respondent confirmed the decision of WorkCover and this is the matter now under appeal.[5]
Appellant's application to amend Statement of Facts and Contentions
- [8]At the commencement of the proceedings on 12 February 2024, Mr Glen representing the Appellant sought leave to amend the Statement of Facts and Contentions to expand the physical injury from:
An injury to her lower back region, including an annular tear -
to:
An injury to her lower back region including an annular tear and facet joint synovitis, and consequent upon those injuries, consequential trochanteric bursitis and gastritis.[6]
- [9]Mr McLeod representing the Respondent in his objection explained:
MR McLEOD: … So the first point is in respect to the physical injury. I'm happy to hand up the relevant material, but - to make good this argument, but originally Ms Austin put in a notice of claim for damages, and ultimately - in respect of physical injury, and what transpired was that WorkCover, on the 17th of March 2020, accepted her injury for:
An aggravation of pre-existing pathology at L4-5, asymptomatic, is a work-related aggravation of a pre-existing condition.
And she was advised if she disagreed with that determination, she had 20 business days to seek a review. That hasn't been done. So that's the precise acceptance of the injury by WorkCover, not as described at page 3 on the purported amendment. When my learned friend used the language "expands upon the injury" - well, if there's a new injury or a different injury or Ms Austin's dissatisfied with that assessment back on the 17th of March 2020, she had a forum to go to challenge that, and that hasn't been done.[7]
- [10]Mr McLeod said the Respondent had consented to the proposed amendment by oversight and as he was handed the proposed on the morning of trial, the proposed amendment had not been consented to. Mr McLeod submitted as follows in respect of the bursitis and gastritis issue:
MR McLEOD: In respect to the bursitis, no decision has been made, that I'm aware of, by WorkCover in respect to that decision. And then with the gastritis point, a decision has been made, and that was made and conveyed to Ms Austin on the 10th of July 2020, to the effect that she was advised that:
The gastric ulcer you have had would be an injury secondary to the aggravation of pre‑existing pathology at L4-5. The injury's assessable but not ratable because the condition has resolved and there's no impairment, which is different from having a zero per cent permanent impairment. You do not need to be further assessed for the purpose of gastric permanent impairment.[8]
- [11]The Appellant submitted there are two arguments for determination. The first is that the Appellant sustained a lower back injury, whatever the cause of it be, and that as a result she then sustained a psychiatric injury.[9]
- [12]In response to the Appellant's application for leave to amend her Statement of Facts and Contentions, the Commission determined as follows on 13 February 2024:
HIS HONOUR:
This is an application by the Appellant for leave to amend the Statement of Facts and Contentions filed in the Industrial Registry on 14 July 2023.
By way of background, it is now the common practice for a direction to be given requiring the parties to file and serve Statements of Facts and Contentions. The legislative power to make such a direction is found in s 451(2)(a) of the Industrial Relations Act 2016 (IR Act). More detailed provisions are contained in r 41 of the Industrial Relations (Tribunals) Rules 2011. Rule 45 also provides that, among other things, the Commission may dismiss a proceeding if there is a failure to comply with a direction.
As was observed by Martin J in Yousif v Workers' Compensation Regulator [2017] ICQ 4:
A Statement of Facts and Contentions is not attended with the same level of formality as pleadings in the traditional sense are. The Commission is relieved, by s 531 of the IR Act, of many of the strict rules which apply in the civil courts. But, the Commission is still in charge of its own procedure and may, consistently with the provisions of s 531, require parties to provide an outline of their respective cases. This is particularly important in appeals under the Act where the nature of injuries, their cause, and the times at which they were suffered are essential to the resolution of an appeal. It follows, then, that the Commission is entitled to rely on the Statement as a complete statement of a party's case and, if an admission is made, to rely on that admission.
His Honour went on to say at [15] as follows:
It is consistent with the requirements of s 531 for a party in an appeal under the Act to set out its case by way of a Statement of Facts and Contentions. It alerts the other party to the case it will have to deal with and it identifies the issues which exist which, in turn, allow for a confinement of the matters in dispute. An appeal under the Act is not the time for a broad ranging inquiry into an unlimited number of complaints or grievances. The time and resources of the Commission are constrained and it is necessary for those constraints to be acknowledged in this way. Subject always to the Commission's power to allow appropriate amendments (so that s 531 may be observed) a party will be bound by its Statement of Facts and Contentions and may not lead evidence which is not relevant to the identified issues.
The Respondent submits that the Commission is bound to accept the Regulator's determination of 17 March 2020 that the Appellant suffered an aggravation of pre-existing pathology at L4/5 (asymptomatic) is a work-related aggravation of a pre-existing condition.
This, it was submitted was never challenged by her even though she had the opportunity to do so.
Further to that submission is the proposition that the Commission cannot now undertake a review of that assessment.
This submission brings me to a consideration of the nature of an appeal before the Commission under the WCR Act.
In Charters Towers Regional Council v Workers' Compensation Regulator [2019] QIRC 27, I had the opportunity to review the relevant authorities dealing with the nature of the WCR Act Appeal. I wrote:
[17] An appeal of this type is, as Hall P observed in State of Queensland (Queensland Health) v Q-COMP and Beverley Coyne,[10] to be treated as a hearing de novo.
[18] The nature of a hearing de novo was discussed by Martin J in Church v Simon Blackwood (Workers' Compensation Regulator).[11] In that case, his Honour referred to the reasoning of Dawson J in Harris v Caladine[12] where he said:
An order made by a Registrar is reviewable by way of a hearing de novo. That means that the court reviewing the order begins afresh and exercises for itself any discretion exercised below by the Registrar. The parties commence the application again, subject to any restrictions in the rules upon the calling of evidence or provisions relating to the use before the court of evidence called before the Registrar. A hearing de novo involves the exercise of the original jurisdiction and "the informant or complainant starts again and has to make out his case and call his witnesses": Builders Licensing Board v. Sperway Constructions (Syd.) Pty. Ltd. [1976] HCA 62; (1976) 135 CLR 616, at p 620; see also Reg. v. Pilgrim (1870) LR 6 QB 89, at p 95; Campbell, "Judicial Review and Appeals as Alternative Remedies", [1982] MonashULawRw 8; (1982) 9 Monash University Law Review 14, n.3.
A hearing de novo may be contrasted with an appeal stricto sensu and an appeal by way of rehearing. In an appeal stricto sensu the question is whether, upon the material before the tribunal below, the conclusion which was reached was correct. An appeal by way of rehearing involves the rehearing of the matter as at the date of the appeal, but upon the evidence called before the tribunal below, subject to a power to receive further evidence. On an appeal by way of rehearing the rights of the parties must be determined by reference to the circumstances, including the law, as they exist at the time of the rehearing. But an appeal by way of rehearing does not call for a fresh hearing as does a hearing de novo; the appeal court does not hear the witnesses again: see Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd ; Quilter v Mapleson ; and Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan ." (citations omitted)
[19] Dawson J said in Harris v Caladine in relation to a hearing de novo that the "complainant starts again and has to make out his case …".[13]
In Kim v Workers' Compensation Regulator [2019] ICQ 14 his Honour Justice Martin visited the question of the hearing before the Commission being a hearing de novo and said:
The ambit of a Commission hearing is determined by the case which was before the Regulator. However, the Regulator's actual decision is irrelevant. The parties start the case again and the appellant must make out their case anew.[14]
The question for the Commission to determine is what it is that the parties are starting again.
The question to be determined in the case currently before the Commission is the decision of the Regulator of 19 February 2022 to conclude that the Appellant did not have an injury within the meaning of s 32 of the WCR Act - that is her claim for a psychological or psychiatric injury. It was this decision which was the subject of a request for review submitted on 28 September 2022 by the Solicitors for the Appellant.
It is against that rejection that we find ourselves here today to determine.
In considering whether to permit an amendment, I have had consideration of the fact that the Respondent was advised in writing that the amendment was to be made and the terms of that amendment. It was submitted that the Respondent in giving consent, was at cross purposes with the Appellant. What is submitted by Mr McLeod for the Respondent is that a consent of the Regulator cannot expand the jurisdiction of the Commission.
Section 558 of the WCR Act is limited in its scope.
Powers of appeal body are expressed as follows:
- In deciding an appeal, the appeal body may -
- confirm the decision; or
- vary the decision; or
- set aside the decision and substitute another decision; or
- set aside the decision and return the matter to the respondent with the directions the appeal body considers appropriate.
The powers of the Commission are limited to a consideration of the decision of the Workers' Compensation Regulator from which the appeal is brought. It cannot substitute another decision unrelated to the appealed decision.
In Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 327; 103 ALD 467; [2008] HCA 31; BC200806838 per Kiefel J is support for the proposition that a hearing de novo cannot enlarge the jurisdiction of the Commission.
Martin J in Church v Simon Blackwood (Workers' Compensation Regulator)[15] commencing at paragraph 33 wrote:
- … For the reasons I have set out above, the lodging of an appeal to the Commission does not "open the gates" for both parties to the appeal to request the Commission to determine "any number of preliminary issues". The ambit of such a hearing is determined by the case which was before the Regulator. It is also determined by any specific statutory provision which impinges upon the boundaries of the issue to be determined.[16]
At paragraph [34] his Honour goes on to state:
- … I accept that an insurer, a claimant and the Regulator might proceed on the basis that a certain set of facts exists. For example, it is not unusual for an insurer or the Regulator to accept that a claimant is a “worker” within the meaning of the Act or that it is accepted that an injury is work-related. Those are matters which can be the subject of further evidence in a hearing before the Commission. Those are matters which can be the subject of further argument in such a hearing. But those are questions of fact.
It can be accepted that the underlying rationale for having a discretion to amend, subject to the interests of justice, is for the purpose of determining the real questions raised by, or otherwise depending upon, the proceedings before the Commission, correcting any defect or error in the proceedings and in some instances to avoid multiplicity of proceedings.
However, the amendment must not be such as the expand the primary question to be determined by the Commission. What is proposed by the Appellant invites the Commission to make a decision unrelated to the appealed decision.[17]
I am therefore of the view that an amendment should be granted but on limited terms. Those terms would be as I discussed before to add the consequential physical injuries the Appellant developed consequential gastritis but limited to that and that is what I have in mind.[18]
Issues for determination
- [13]It is not in contention that the Appellant was a worker within the meaning of s 11 of the WCR Act and has an accepted back injury by WorkCover which occurred when she was at work on 6 March 2019.[19]
- [14]The Respondent admits the Appellant sustained a physical injury, being aggravation of pre-existing pathology at L4/5 while at work on 6 March 2019. The Respondent contends that the accepted physical injury was an aggravation of pre-existing pathology at L4/5 and not an annular tear at L4/5.[20]
- [15]The Respondent does not admit that the Appellant sustained a psychiatric-psychological injury as a consequence of her physical injury.[21]
The legislation and relevant legal principles
- [16]As this appeal is to be determined as a hearing de novo, the Appellant bears the onus to satisfy the Commission, on the balance of probabilities, that she was a worker who suffered a psychiatric or psychological injury that arose out of or in the course of her employment, and that her employment was a significant contributing factor to the injury.
- [17]Section 32 of the WCR Act provides:
32 Meaning of injury
- An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.
- However, employment need not be a contributing factor to the injury if section 34(2) or 35(2) applies.
- Injury includes the following –
- a disease contracted in the course of employment, whether at or away from the place of employment, if the employment is a significant contributing factor to the disease;
- an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation -
- a personal injury;
- a disease;
- a medical condition, if the condition becomes a personal injury or disease because of the aggravation;
- loss of hearing resulting in industrial deafness if the employment is a significant contributing factor to causing the loss of hearing;
- death from injury arising out of, or in the course of, employment if the employment is a significant contributing factor to causing the injury;
- death from a disease mentioned in paragraph (a), if the employment is a significant contributing factor to the disease;
- death from an aggravation mentioned in paragraph (b), if the employment is a significant contributing factor to the aggravation.
- For subsection (3)(b), to remove any doubt, it is declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation.
- Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances -
- reasonable management action taken in a reasonable way by the employer in connection with the worker's employment;
- the worker's expectation or perception of reasonable management action being taken against the worker;
- action by the Regulator or an insurer in connection with the worker's application for compensation.
- [18]
Significant contributing factor
- [19]For the purposes of s 32(1), where the Act speaks of employment being a significant contributing factor to the injury, significant is used in the sense of "important" or "of consequence".[24]
- [20]The requirement that the employment is a significant contributing factor to the injury requires that the exigencies of the employment must contribute in some significant way to the occurrence of the injury.[25]
- [21]In Newberry v Suncorp Metway Insurance Ltd[26], Keane JA, with whom de Jersey CJ and Muir J agreed, said:
Further, there is no warrant in the language of s 32 of the WCRA for reading the words "if the employment is a significant contributing factor to the injury" as lessening the stringency of the requirement that the injury "arise out of the employment", as was suggested in the course of argument on the appeal. It is clear, as a matter of language, that the words "if the employment is a significant contributing factor to the injury" are intended to be a requirement of connection between employment and injury additional to each of the requirements that the injury occur in the course of employment or arising out of the employment. It cannot, in my respectful opinion, sensibly be read as lessening the stringency of the latter or increasing the stringency of the former.[27]
- [22]In Qantas Airways Ltd v Q-Comp[28] Hall P was invited to elevate the word "significant" to the same level as "substantial". His Honour said:
On balance, I am not prepared to accept the submission that "significant" bears the meaning of "large", "great", "weighty" or "substantial". I regret that I am unable to be more precise in fixing the meaning of "significant" as towards the lower end but not at the base of the spectrum, and (to the extent that adjectives may be used without supplanting the statutory language) using words such as "strong", "important" or "of consequence".[29]
The hearing
Appellant
- [23]It is the Appellant’s case that prior to the event of 6 March 2019, the Appellant was in a good state of physical and psychological health. She was asymptomatic in her lower back and asymptomatic in her mental health. She was not suffering any adverse psychiatric/psychological symptomology.
- [24]As a result of the accepted physical injury, the Appellant has suffered significant pain and consequent functional restrictions. This includes:
- Restriction of her physical movement and aggravation with pain attempting to bend over, reach or lift;
- An inability to sit for prolonged periods or run; and
- An inability to undertake basic domestic duties including the mopping of floors; reaching into low cupboards or accessing the oven or washing machine; an inability to remove washing from the washing machine; and an inability sit at a desk for prolonged periods. [30]
- [25]The Appellant contends that she has suffered a variable and fluctuating course of physical symptomology. At times she has appeared to be improving but has suffered constant setbacks. Despite a range of physical treatments, the Appellant has not recovered from her physical injury.
- [26]The Appellant has made a number of attempts to return to work which have resulted in aggravation of pain, such that the Appellant was only able to attempt very short periods of work or in some cases has been unable to attend her suitable duties program due to exacerbation of pain. The Appellant has not returned to her former employment.
- [27]It is further contended that as a result of the Appellant's lower back pain, episodic "flare ups" / "worsening of her condition", a fluctuating and variable clinical course, poor to limited response from treatment, inability to complete even a limited hours return to work program, ongoing physical pain and loss of range of movement, and a failure to recover from her low back injury despite multiple treatments over an extended period, the Appellant has:
- become depressed and despondent;
- felt demoralised and dysphoric;
- suffered low moods;
- felt overwhelmed;
- had thoughts of suicide;
- felt pessimistic and negative;
- ruminated over her reduced quality of life and loss of functional capacity;
- suffered worry and anxiety about her future;
- become distressed over the loss of control of her life;
- suffered a loss of self-efficacy and self-esteem;
- feelings of resentment, regret and anger; and
- suffered periods impaired sleep and insomnia.[31]
- [28]In addition to the psychological consequences flowing from her lower back injury and pain, the Appellant suffers resentment, regret and anger at the circumstances in which she injured her back and at the employer for its workplace failures which caused her back injury.
- [29]There are no other circumstances which could have or did cause the Appellant's psychiatric/psychological injury. In particular, no non work-related causes or potential stressors which could have caused the Appellant's psychiatric/psychological injury.
- [30]In closing submissions, Mr Glen for the Appellant submitted that the Appellant's evidence was unchallenged and should be accepted.
- [31]Her pre-accident work history spanned greater than 30 years in which she felt fulfilled and had a sense of self worth as a result of undertaking employment over that time. Since the accident she has been unable to return to work. At the time of the incident she was enjoying her job at the Pullman. The Appellant gave evidence of an active lifestyle prior to the incident.[32]
- [32]Neither of the psychiatrists, Dr Trott nor Dr Chalk said that the Appellant had any significant pre‑existing condition prior to the back injury which she sustained in March 2019. However, Dr Trott found there was a recurrent depressive disorder following her husband's head injury in the 1990s and this was recurrent.[33]
- [33]In the late 1990s the Appellant had some mental health issues and attended a General Practitioner on 30 January 2015 and again on 6 February 2015 and was placed on a mental health plan.[34]
- [34]The Appellant had no further attendances for any mental health issues in the two years up to the date of the back injury.[35]
- [35]Mr Glen submitted the only relevance of that past mental health history was in respect of Dr Trott's diagnosis of "recurrent major depressive disorder".[36]
- [36]The Appellant submits that "… whatever this issue was, whether it was an annular tear or whether it was a facet joint synovitis, or whether it was some other form of aggravation, regardless, it was a serious condition that caused her ongoing problems".[37]
The Respondent
- [37]It was not in contention that the Appellant was a worker for the purposes of the WCR Act nor was it in issue that the Appellant sustained a physical injury, namely, an aggravation of pre-existing pathology at L4/5 while at work on 6 March 2019.
- [38]The Respondent relied upon the report of Dr John Chalk, Psychiatrist, dated 21 July 2022, where he stated that:
- The Appellant did not have an Axis 1 psychiatric disorder;
- Whilst the Appellant experience a degree of uncertainty and anxiety in the aftermath of the injury she did not psychologically decompensate; and
- The Appellant did not suffer a psychiatric injury.
- [39]Mr McLeod for the Respondent in his closing submissions said the task is to determine whether the Appellant's ongoing pain to the lower back region has caused her to develop a secondary injury, namely the psychological injury and which expert psychiatric opinion should prevail having regard to all the evidence.[38]
- [40]Whilst the Respondent accepted the Appellant had chronic pain, that chronic pain did not lead to the claimed secondary psychiatric or psychological injury.[39]
- [41]The Respondent submitted that the Commission should prefer the evidence of Dr Chalk over that of Dr Trott.[40]
Medical Evidence
- [42]On 14 May 2019, the Appellant attended Tina Seaton, Psychologist, in respect of her psychological symptomology which she was experiencing consequent upon her back pain and anger at the Employer.
- [43]On 27 May 2019, the Appellant re-attended Ms Seaton. At that stage, the Appellant had been swimming and exercising and felt that she was improving and hence discontinued psychological counselling. However, the Appellant shortly thereafter suffered further setbacks and recurrence of psychological symptomology.
- [44]It is accepted that the Appellant experienced a compensable orthopaedic injury arising out of the incident on 6 March 2019. As the evidence demonstrates, the Appellant subsequently experienced ensuing chronic back pain. However, the orthopaedic assessments observed that the nature of the Appellant’s reported pain and disability is greater than would be expected for the nature and pathology of her chronic low back injury including the expected clinical course, healing and recovery. [41]
- [45]The Commission received evidence from Dr Downes, Dr Greg Finch and Dr John Tuffley, Orthopaedic surgeons.
- [46]Dr Downes was the Appellant’s treating Orthopaedic surgeon. In a letter to WorkCover dated 24 March 2020,[42] Dr Downes, writes:
I do feel that her condition is not stable and stationary and that she does require some ongoing physiotherapy particularly looking at pain management strategies and also the aspects from a psychosocial point of view.
- [47]In Examination-in-chief, Dr Downes was asked:
MR GLEN: | Okay. All right. And then lastly, in your reports of 11 March ’20 and 24 March ’20, you make recommendations at that stage for a pain specialist and, I think at one stage, a psychologist to assist with pain management strategies. Can you just tell us briefly what your thinking was there, to make those recommendations at that latter stage in March ’20?‑‑ |
DR DOWNES: | So pain that there is a significant, in some patients, a significant psychological component to their pain. Some of it comes from an adjustment disorder from not being able to work or perform the role that they would normally do on a day-to-day basis that gives them purpose, and they lose that autonomy dealing with third parties and making decisions around their medical treatment. In Ms Austin’s case specifically, her pain, despite the treatment and us focusing on where her pain was, she was failing to progress further, and I felt that some of the changes in her symptoms and where they were referring to were out of proportion to somebody with the degree of inflammation and – and the symptoms that she had, or that she should’ve had. I felt that often, in these circumstances, patients need that multi-disciplinary approach. They need to talk to a psychologist who specialises in pain management, and also the review of a pain specialist who can look at trying to either perform other injections, they can modify their an – their anti-inflammatories or their analgesic requirements, and her problem, I didn’t feel at this stage, was a surgical problem, and hence, as a surgeon, it’s – then falls sometimes outside of my scope of expertise, to comment on those areas, particularly the psychological component of things. But it’s important to recognise that early and get people seen to, otherwise they do tend to spiral out of control in terms of controlling their pain.[43] |
- [48]
…The Claimant's self-stated level of disability is far in excess of what would be expected considering he current physical findings and the results of the imaging studies over time. The Claimant would appear to have a high level of injury conviction, and perceives fault on the part of her employer relating to the activities she was required to undertake on 6 March 2019. Other factors which could possibly be contributing to the Claimant's high level of self-stated disability could include attitudes and beliefs, the patient's interpretation of the meaning of pain as it relates to the pathophysiology of tissue damage, psychological o psychosocial distress, and the potential for secondary gain (both psychological and material).
….
It is considered that the Claimant is capable of working as a tour desk operator and should be capable of this employment until normal retirement age.
…
The claimant's current symptoms are somewhat unusual, in that she claims pain over her mid-sacrum not her lumbar region, and investigations have not demonstrated any abnormalities in the region of her sacrum. With respect to her ongoing right lateral thigh pain, the pain is just distal to the greater trochanter and greater trochanteric bursa, and the cause of this ongoing pain is not clear…'.
- [49]Dr Tuffley also stated in his report the following:
Any injury suffered by the Claimant on 6 March 2019 in the region of her low lumbar spine and right hip would be considered minor. The current physical examination does not demonstrate a cause for her persisting pains, nor do the investigations which were carried out following the episode of 6 March 2019. Assuming the Claimant suffered some minor musculoligamentous or musculoskeletal strains in relationship to the episode of 6 March 2019, or perhaps an exacerbation of the mild pre-existing degenerative change which existed I her lumbar spine, she would have recovered from such injuries with six to twelve weeks which is the natural history for these types of injuries.[45]
- [50]Dr Greg Finch prepared a medico-legal report dated 22 December 2021.[46] In his evidence-in-chief before the Commission Dr Finch was asked how long he would expect it to take for the Appellant to recover.
MR GLEN: | Could you answer that question, please, Dr Finch? |
DR FINCH: | When individuals have injuries to their lower back, including with facet joint abnormalities or due to the disc, both of which may be in play in this case, it’s extremely variable and unpredictable as to how long it will take to recover. Some people have significant injuries so that they don’t recover, then go and see a spinal surgeon, and from time to time we are forced to even operate on people with disc damage. She sought the advice from her treating orthopaedic surgeon, Dr Downes, and has always had, as far as I can see from the notes and my personal examination, has behaved in a consistent fashion. Pain is very difficult because it is subjective to each individual. And although we would expect, love, that pain to recover in a relatively short period of time, sometimes it does not. And when pain is continued to be caused over an extended period of time it can even alter the individual patient’s perception of pain, and they may even develop abnormal pain behaviour patterns. Interestingly, she has not when I examined her, albeit in 2021.[47] |
- [51]The Appellant was examined by Dr Paul Trott and Dr John Chalk, both Consultant Psychiatrists for the purposes of obtaining a medico-legal report. Reports from both doctors were prepared and both gave oral evidence before the Commission.
Dr Trott
- [52]The Appellant relies on the evidence of Dr Paul Trott. The Appellant attended on Dr Trott on 13 July 2022 where she underwent a full psychiatric evaluation including a review of the presenting history, clinical progress, past medical history, previous psychiatric history, family psychiatric history, developmental and personal history as well as matters relating to her employment history. In addition, a Mental State Examination was undertaken as well as psychological assessments including the PHQ-9 Depression and the GAD-7 Anxiety. The evaluation took in excess of two hours.
- [53]
- Diagnosed the Appellant as having initially developed an adjustment disorder/recurrent Major Depressive Disorder in response to her chronic back pain and a limited recovery… with episodic flare ups;
- Opined that the adjustment disorder/recurrent major Depressive Disorder had over time developed into a "Chronic Moderate Persistent Depressive Disorder";
- Diagnosed the Appellant as having additionally developed moderate to severe Comorbid Somatic symptom Disorder with predominant pain and persistent "regarding the adverse nature of her chronic low back injury"; and
- Attributed causation of both of the aforesaid psychiatric injury to the chronic pain, functional incapacity and other consequences of the Appellant's accepted low back injury, including the limited recovery therefrom.
- [54]Dr Trott gave the following evidence in respect of the development of the Chronic Moderate Persistent Depressive Disorder:
MR GLEN: | So can you just state, please, what - sorry, I should also say you formed the view that the depressive disorder went on to become what's called a persistent depressive disorder. Is that correct, Doctor? |
DR TROTT: | Correct. |
MR GLEN: | All right, and can you just describe why you reclassified the diagnoses from adjustment disorder through to a major depressive disorder and then persistent depressive disorder, sort of, as briefly as you can, Doctor, please? |
DR TROTT: | ---Okay, so I guess in my history, I also identify that Ms Austin had suffered what seems to be a depressive episode in response to a very separate stress in the 1990s regarding her husband's ill health and again, she threw all of her energy into assisting him with his recovery but in the aftermath, had [indistinct] seeing a psychologist and it seemed, in my interpretation of her account, that was a – a – a – another depressive episode and so therefore, because she's now had two depressive episodes in her lifetime, you can't really start to make the diagnosis of adjustment disorder; it would be better to make the diagnosis of recurrent major depressive disorder. The second aspect is that because of the duration and severity of the adjustment disorder, major depressive disorder becomes the superseding diagnosis and that's characterised by symptoms of greater than two-week period and the two key symptoms are of a depressed mood or low mood or negative mood and also a loss of positivity or anhedonia, a loss of interest, enjoyment in activities and certainly, Ms Austin had actually clari - described those symptoms which were worsening throughout the August to November, January of 2019. There were additional symptoms including insomnia, okay? So her mind would be active, [indistinct] over matters, as well as thinking about her complicated recovery in addition to not coping and obviously, the pain was obviously disturbing her sleep but she also had reduced energy levels, poor concentration. She actually had diminished appetite and manifested at the same time as gastritis and had lost significant weight in that same period in addition to having increased pessimistic thoughts, suicidal ideation, self-blame and yeah, so that's - I think that's a constellation of the major depressive symptoms in - in - in support of the diagnosis of major depression has got to be greater than two-week period. If you look at the duration of her condition, when I saw her in the 2022 year, that, you know, these symptoms have now persisted for greater than two years and again, insomnia, diminished energy and concentration levels, negative self [indistinct] reduced positivity or anhedonic symptoms, problematic concentration and - and so therefore, that's why I then made the - the subsequent diagnosis of the - the persistent depressive disorder and it would seem also that Ms Austin had had a further worsening of the depression in the aftermath of around the August/September period of 2020, where she - she said that she fell into a big hole, again, manifesting suicide ideation. She'd withdraw and stopped all activities, treatments, and again, there was a worsening of, you know, low energy levels, insomnia, poor concentration and an increase in the anhedonic symptoms at that time, so she had actually had two clear, perhaps in the course of this current illness, depressive episodes, major depression with the overlap of the persistent depressive disorder. |
MR GLEN: | All right, Dr Trott, and can I just ask you, just for completeness, to clarify the cause of the depressive disorder? Was it any different to the cause of the adjustment disorder or the same? |
DR TROTT: | Well, it related to the back injury and then the limited recovery and inability to complete a - a return to work. So failure to return to work and not making a - a recovery in - in her timeline. |
MR GLEN: | All right? |
DR TROTT: | Or expected timeline, yes.[49] |
- [55]In examination-in-chief, Dr Trott was asked:
MR GLEN: | So in the first paragraph, page 22, you record that in your view, the appellant initially developed an adjustment disorder with mixed anxiety and depressed mood, correct?--- |
DR TROTT: | Correct. |
MR GLEN: | And that that developed further into a major depressive disorder? |
DR TROTT: | Correct. |
MR GLEN: | And that over time, that developed, you considered, into a - what's called a persistent depressive disorder? |
DR TROTT: | Correct |
MR GLEN: | Right, and then also in the fourth paragraph, you refer to the appellant having sustained an additional somatic symptom disorder? |
DR TROTT: | That's correct. |
MR GLEN: | And then can I just clarify? Page 23, the third-last paragraph, you state: |
Ms Austin developed a chronic moderate to severe mixed anxiety and depressive illness as part of her maladjustment to chronic low back pain and her limited mobility, there being a loss of control over her circumstances and life.
Is that - when you use those words a chronic moderate to severe mixed anxiety and depressive illness, are you referring back to the diagnoses I've just discussed with you, the adjustment disorder, depressive disorder and the somatic symptom disorder or not?
DR TROTT: | Yeah, so I am actually referring to those diagnoses. I'm just summarising the adjustment disorder, which then is a major depressive disorder which then becomes [indistinct] depressive disorder.[50] |
- [56]Dr Trott was asked to comment further:
MR GLEN: | You also have identified the somatic symptom disorder or diagnosed a somatic symptom disorder, Doctor Trott. Could you just very briefly outline what that is and what you consider caused the appellant to have a somatic symptom disorder, what you’ve relied upon? |
DR TROTT: | Okay, so – so the – these symptoms have to qualify for a greater than six-month period and the somatic symptoms, in this case, pain, so that’s why it’s somatic symptom disorder with predominant pain, so that the pain is a somatic symptom and this is causing marked distress and disruption to her daily life, disport – disproportionate persistent thoughts.[51] |
Dr Chalk
- [57]Dr Chalk undertook a Telehealth assessment of the Appellant on 20 July 2022 and produced a written report dated 21 July 2022.[52]
- [58]Dr Chalk’s evidence was that he did not believe that the Appellant has an Axis 1 psychiatric disorder.
- [59]In the report of 21 July 2022, Dr Chalk states that:
- He did not believe that the Appellant had an Axis 1 psychiatric disorder;
- He thought the Appellant experience a degree of uncertainty and anxiety in the aftermath of the injury and that he did not think that she has psychologically decompensated; and
- He did not believe the Appellant had a psychiatric injury.
- [60]Whilst Dr Chalk was aware of, and did consider the Appellant's physical limitations, including that she was not coping, he did not consider that this was sufficient to reach the threshold of a diagnosable injury from a psychiatric point of view.[53]
- [61]In cross-examination, Dr Chalk was asked:
MR GLEN: | In your report, you concluded that the appellant was not suffering any Axis I psychiatric disorder as at the date of your assessment, correct? |
DR CLARK: | That’s correct. |
MR GLEN: | And that conclusion appears to be, I suggest, was pretty heavily based upon your findings on mental state examination that day when you saw the appellant and how she described her current symptoms as at that time? |
DR CLARK: | And also on the history that she provided as well, yes. |
MR GLEN: | All right. Well, you say on page 11 - let me find it. Page 11 about - what’s that line in your numbering? Two-seventeen: |
Ms Austin does not have enough symptoms to warrant an Axis I diagnosis.
That’s what you’re meaning, currently, weren’t you? That day?
DR CLARK: | No, I - well, I do, but that also applies to what the - historically, I didn’t think she had a diagnosis, either. I don’t think she had ever suffered from an Axis I psychiatric disorder. |
MR GLEN: | Yes. All right, but you concede she had some difficulties with previously but not that she had a psychiatric disorder, correct? |
DR CLARK: | Yes, that’s correct, yeah.[54] |
- [62]Dr Chalk was asked:
MR GLEN: | And if you accept from me that the appellant was, pre-accident, socially active, going out with her friends on a regular basis and entertaining at home but post-accident, had effectively massively reduced, not quite stopped but massively reduced that, that could also be a relevant factor in terms of assessing – sorry, that would also be a relevant actor in terms of stressors upon her? |
DR CHALK: | Yeah, absolutely, but not all stressors lead to the development of psychiatric illness.[55] |
- [63]The Appellant challenged the adequacy of the Telehealth medical assessment undertaken by Dr Chalk. It was asserted that Dr Chalk failed to ask specific questions of the Appellant and to explore issues which were critical to his evaluation of her condition.
- [64]In cross-examination, Dr Chalk was asked:
MR GLEN: | You failed to ask the questions you needed to ask regarding how she felt and what was the toll on her of the events that had occurred resultant upon her physical injury and that’s why it’s not recorded in your report? |
DR CHALK: | I’ve already answered that question and as I have said, I don’t think this lady had and certainly does not, did not have when I saw her, an Axis I psychiatric disorder. I don’t think that she had a somatic symptom disorder, I don’t think she had alexithymia and I don’t think that she was in need or that she thought she had the need of any ongoing psychological treatment.[56] |
- [65]There is a divergence of opinion between the medical opinions of Dr Trott and Dr Chalk. Dr Trott in his report of 30 August 2022 wrote:
I do not concur with Dr Chalk’s clinical findings and conclusions. It is possible that Ms Austin has presented better than she is, as well as there being limitations by Telehealth assessment. Ms Austin has further reported she could have “good days” and “bad days” half the time.
- [66]Dr Trott goes on the state:
Dr Chalk although saying Ms Austin has not psychological decompensated, he identified she had previously “fallen into a big hole” and had suicidal ideation, she then attending a Psychologist.
Dr Chalk in the Personal History and Other traumatic experiences did not identify Ms Austin’s unfortunate date rape at aged eighteen and seemingly did not explore to any degree the extent of her development history, especially the tragic killing of her sister by Ms Austin’s father and the his leaving the family and the likely adverse impact upon her family especially her parents and their emotional availability to her; that likely shaped her personality and her the matter of her coping with distress or discomfort or negative emotions and conflict.
Dr Chalk under Past History Psychiatric did not identify the extent of Ms. Austin’s previous Depressive episode whereby she had “gone to pieces” and had also suffered suicidal ideation when she decompensated regarding her husband’s unfortunate head injury and then attended a psychologist.
Dr Chalk did not identify Ms Austin’s fluctuating dysphoria and negativity, frustration at her chronic low back pain and perceived loss of control, lessened quality of life, including notions of pessimism thinking “what’s the point” and contemplating “is this all that there is?”.
Additionally, although Dr Chalk noted Ms Austin’s interrupted sleep and she ruminates and over thinks things, it was noted in my clinical findings that the initial and middle insomnia were due to her chronic low back pain and her worry over her chronic back pain and the future including re-injury, as worry of her husband’s ill health with chronic effects from his head injury. [57]
- [67]Dr Chalk’s approach to the examination was described by the Appellant as being ‘brusque’. She told the Commission that:
It was all very brief and-and-blasé. Like, I felt like he didn’t really-wasn’t really listening to what I was saying, like – I didn’t feel comfortable whatsoever.[58]
- [68]In cross-examination the Appellant was asked:
MR McLEOD: | Right. Okay. And how did you – what made you form the view that he was blasé ---? |
APPELLANT: | The---when dealing with you? ---The way he skipped over my history.[59] |
- [69]The Appellant demonstrated a reluctance to be as forthcoming with Dr Chalk as she was with Dr Trott. This appears to be due to the Appellant not feeling comfortable with Dr Chalk, as he sought only ‘to take a brief history’. The Appellant said that she felt like she was ‘interrupting’ Dr Chalk’s day.[60]
- [70]The Appellant was asked:
MR GLEN: | So what was the difference between the way Dr Chalk took the history and Dr Trott took the history? In what way did they differ? |
APPELLANT: | Dr Chalk was just so patient. I didn’t feel like I was being rushed. He just said, “Now, in you own words, like, tell me about your life.” And, like there was lots of, like, hesitations where I felt like I had time to think. Whereas, with Dr Chalk, I – I didn’t think I’d been given an allowance to think, and it didn’t even enter my mind to ask him if I could, like, you know, like, have some more time.[61] |
- [71]Dr Trott expressed a clear preference for face-to-face consultations which gives a patient the opportunity to open up and elaborate upon their experiences and for the doctor to understand them. His personal preference was to take time not to rush a patient because it sometimes can take a while for patients to reveal themselves.[62]
- [72]There was evidence before the Commission that the Appellant could have “good days and bad days.” In the context of the difference in the Appellant’s presentation before Dr Trott and Dr Chalk, this point gained some relevance.
- [73]In the evidence of Dr Garry Hartrick, the Appellant’s general practitioner, reference is made to the Appellant having "good days and bad days".[63]
- [74]In examination in chief, Dr Hartrick was asked:
MR GLEN: | All right. Did you write to WorkCover in fact on the 14th of May 2019 with respect to an inquiry whether it was suitable for the – for Ms Austin to return to work at that stage? It’s an – addressed – it’s to Carter Emeryn, 14th of: Dear Carter, thank you for your correspondence regarding Julie. ?‑‑‑So: ...thank you for your correspondence regarding Julie. |
DR HARTRICK: | Yes. |
MR GLEN: | And a proposed return to alternate duties – – – What was your view then? |
DR HARTRICK: | – – – as much as Julie [indistinct] well, I said here: ...as much as Julie would like to re-enter the workplace. So I had to say that even the duties offered by her employer are likely to be beyond her at this time: Julie still needs to lay down in bed on a daily basis. She had good and bad days and can never predict when these are likely to occur. She has the occasional day where she’s capable of doing nothing but – nothing about the home. With regard to duties, I suggest that we could start her on one hour a day three days a week, but there would be no guarantees she would last more than five minutes. So in any one day you can’t guarantee whether she’s going to have a good day or a bad day: She had no ability to bend and reach at present.[64] |
- [75]Dr Trott also referred to the Appellant having “good days and bad days” in his report. During cross-examination, Dr Trott was asked:
MR McLEOD: | Okay, and just going back to the passage in your report where you say: Ms Austin further reported that she could have good days and bad days half the time. |
What do you mean by - - -?---Yeah. What do you mean by that?
DR TROTT: | All right, so this is over the timeframe of the duration of her illness, so therefore, two years plus from when I had – was seeing her and so she says over that time, she estimated, you know, there were – there were days when she was better, okay? And she was more functional, hence she was able to read or watch television, I think she liked foreign films and subtitles. There were better days when she could do things. I mentioned that she went to the AFL, she went to visit her father, she was able to bake him a cake. So there were those high points but there were also other times when she was much more low, much more negative, couldn’t – wasn’t able to perform her art to any extent. So she normally powers through with her art, having to break it down into small areas because she could not stand or sit for lengthy periods. There was a loss of, I’ve put in my report, artistic momentum. It was the impact of not just the intrusion of chronic pain but also her low mood, negativity, loss of pleasure and so these symptoms were fluctuating throughout the course over the two-year period and as reiterated and there were more significant depressive episodes in the latter part of 2019 and then in the mid-part of 2020 and so therefore, you – you – you can see that the – the changing nature of her depressive symptomatology, again, because the – the – the – we call it stigma of mental illness, doesn’t like to see herself as being depressed, doesn’t want to – wants to see herself as being strong and capable but you could see the intrusion of those somatic depressive symptoms affecting her and she – and she struggled because she couldn’t be her usual, capable self and she was a very capable woman pre-injury in – in many a – arenas or in many areas of her life[65] |
- [76]In cross-examination, Dr Trott was taken to the following passage in his report:
Ms Austin also suffered a period of stress, likely a subclinical depression.[66]
- [77]Dr Trott was asked:
MR McLEOD: | I’m not being critical, Doctor, but would it be fair to say you’re speculating there? |
DR TROTT: | Well, that was the collateral history from Ms Serena Keating and I guess I’m identifying symptoms of tiredness, insomnia, memory difficulties and although there was no mention of a depressed mood, she did indicate there was worry of the staff at the [indistinct] at the time not being happy and she was worried about what they had thought of her. So – and so what we’re saying here is she’s developing these somatic symptoms which may infer depression, that’s why I’ve said subclinical. So I’m not trying to make a diagnosis of that and then Ms Keating, in the subsequent entry, says that Ms Austin is better, so therefore, from my understanding, Ms Austin, from the time of when there was the back injury in March 2019, was not depressed in any way or form. So there’s no persistent depressive disorder, adjustment disorder or major depressive disorder at that time.[67] |
Consideration
- [78]
- [79]In that case, the plaintiff was employed by the defendant as a room attendant. As part of her duties, she was required to lift an ice bucket. This activity caused her pain, and she eventually had to cease working in the position due to her ongoing pain and an inability to perform her duties. The plaintiff and two other witnesses gave evidence that supported a finding that she had suffered a significant disability. Medical evidence was given by Dr Allan Cook for the plaintiff and Dr John Walters for the defendant. Dr Walters gave evidence that was inconsistent with the three witnesses’ testimony, while Dr Cook gave evidence which was consistent with that testimony. Although the trial judge accepted the credibility of the three witnesses, the Court preferred the evidence given by Dr Walters; on the basis it was consistent with the other experts that had examined the plaintiff. Dr Walters noted, and the court accepted, that the plaintiff did not seek significant medical attention and did not report that any difficulties she had were “overly troubling”. There was little evidence of any significant injury in the radiology.
- [80]On appeal, it was held that the trial judge erred by preferring the testimony of Dr Walters whose version was inconsistent with the lay evidence. Sofronoff P and Fraser JA (Brown J agreeing) wrote:
- [63]Conflicts in expert opinions can raise difficult problems for judges. Areas of specialised knowledge can raise issues about which it may be difficult to make judgments. Medical evidence given in personal injuries cases can sometimes be of this character. Particularly when two experts base their ultimate conflicting opinions upon exactly the same assumptions of fact, it may be a difficult task for a trial judge to determine which of the two conflicting views to accept.
…
- [65]The respective medical practitioners were confronted, it seems, with differing presentations by the appellant upon examination. However, the problems presented to such experts had to be distinguished from the issues which the trial judge had to determine. The learned trial judge in this case was not limited by the same constraints as the medical experts. Unlike those experts, the trial judge had the benefit of comprehensive evidence of symptomology given by the appellant which had been supported in material respects by Ms Black and Ms Tucker. Having accepted that evidence the learned trial judge was obliged, as a matter of legal reasoning, to take those findings into account when assessing which of the experts’ opinions he should accept.
- [81]In McGory, the primary judge preferred the evidence of Dr Walters over that of Dr Cook because in three prior examinations, observations of the Appellant’s range of movement in her shoulders was significantly greater than when examined by Dr Cook.
- [82]However, Sofronoff P and Fraser JA found that this was an insufficient basis upon which to prefer the opinion of Dr Walters to that of Dr Cook:
- [67]… It fails to take into account at all the findings which his Honour made, and which his Honour had correctly made, about the appellant’s evidence and that of Ms Black and Ms Tucker. Indeed, apart from being directly germane to the question of the symptoms caused immediately after the incident, that evidence was also relevant to the issue of “the plaintiff’s failure to seek medical attention” and the reasons for that failure.
- [83]Further, Sofronoff P and Fraser JA were critical of Dr Walter’s comment regarding the appellant’s failure to seek specialist medical advice:
- [70]In a case such as the present, in which the evidence as a whole contains ample material upon which findings of fact can be made about the post-incident symptoms of a plaintiff and in which a submission is expressly made about the significance of that evidence to the ultimate issues of injury caused by negligence, a trial judge who is performing the function of finding facts is obliged to consider that evidence comprehensively. Evidence of the kind given in this case cannot be put to one side so that a conflict between the evidence of medical experts is decided upon a narrow, and possibly mistaken, ground limited to their respective observations.
- [84]The medical evidence before the Commission dictates a choice between: (i) the medical opinion of Dr Trott which supported the conclusion of psychiatric injury; and (ii) the medical opinion of Dr Chalk that the Appellant did not have enough symptoms to constitute an Axis 1 diagnosis.
- [85]In Groos v WorkCover Queensland,[70] Hall P was confronted with the issue of conflicting expert medical evidence. In that case, Dr Chalk, called by Workcover Queensland, did not go beyond DSM-4 when the Appellant failed to meet its threshold. Dr Mulholland, called by the Appellant, however, did. Hall P observed that the question whether the Appellant was suffering from a psychiatric disorder, or a psychiatric injury is a question of mixed fact and law. Whilst expert medical evidence is helpful to determine this question, it is not decisive. His Honour wrote:
It may be conceded that each of the two psychiatrists, Dr Chalk, who had been called by WorkCover Queensland, and Dr Mulholland, who had been called by the appellant, declined to diagnose the appellant as suffering from a psychiatric disorder or a psychological injury. One can understand why. The appellant did not reach the threshold on the diagnostic standard, DSM 4, used by those who practice as specialist psychiatrists …. The question whether an applicant for compensation has suffered an "injury" within the meaning of the Workers' Compensation Act 1990 is a question of mixed fact and law on which medical evidence is often helpful, but necessarily not decisive. If the legislature had wished to confine relief to cases in which a condition answered the criteria of DSM 4, the legislature might have said so.[71]
- [86]
- [43]The Commission, as the tribunal of fact, can be assisted by expert medical opinion evidence, but must weigh and determine the probabilities as to the cause of an injury having regard to the totality of the evidence.[73] The Commission's duty is to find ultimate facts and, so far as it is reasonably possible to do so, to look not merely at the expertise of the expert witness, but to examine the substance of the opinion expressed and (where experts differ) to apply logic and common sense to the best of its ability in deciding which view is to be preferred or which parts of the evidence are to be accepted.[74]
- [87]In Binns v Thomas Borthwick & Sons[75] Mullins J (as her Honour then was) when presented with numerous medical experts and inconsistent diagnoses and opinions, stated:
In considering the opinions expressed by Professors James and Whiteford and the written reports of the other psychiatrists and many psychologists who had examined or assessed the plaintiff, it was helpful to have had the opportunity of observing the plaintiff during the course of his giving evidence.[76]
- [88]The factors identified by the Appellant in her unchallenged evidence; the pain, the physical disability, the alterations to her family and domestic life, the absence of the opportunity to go back to work, to socialise, the feelings of frustration, failure, of hopelessness and letting people down and anger are the immediate consequences of the accepted physical injury are all relevant to take into consideration in assessing which of the experts’ opinions I should accept.
- [89]I found the report of Dr Trott and his process of reasoning far more persuasive than the report of Dr Chalk. In coming to that view, I note the comprehensive nature of Dr Trott’s written opinion (supplemented with his oral evidence) which was informed by an extensive in-person consultation with the Appellant. That extensive consultation informed Dr Trott’s report and the conclusions expressed in it. Dr Trott’s evidence is consistent with and supported by the accepted evidence given by the Appellant.
- [90]Whilst Dr Chalk noted that the Appellant experienced a degree of uncertainty and anxiety in the aftermath of the injury, he did not believe that she has psychologically decompressed. It was his opinion that the Appellant did not have enough symptoms to warrant an Axis 1 diagnosis. Dr Chalk confined himself solely to a determination of an axis 1 diagnosis.
- [91]Having had the benefit of the evidence of symptomology given by the Appellant; and having accepted that evidence and the evidence of Dr Trott, I am of the view that the Appellant has discharged the requisite onus and established that she has a compensable injury for the purposes of s32 of the WCR Act.
Orders:
- [92]I make the following orders:
- Pursuant to s 558(1)(c) of the Workers' Compensation and Rehabilitation Act 2003, the review decision of the Respondent dated 3 March 2023 is set aside and another decision substituted, namely, that the Appellant’s application for workers’ compensation, the subject of this proceeding, is one for acceptance.
- Pursuant to r 41(1) of the Industrial Relations (Tribunals) Rules 2011:
- the parties are to exchange and file written submissions on the costs of the hearing (of no more than two (2) pages, 12-point font size, line and a-half spacing with numbered paragraphs and pages) by 4.00 pm on Friday, 13 June 2025; and
- unless otherwise ordered, the decision on costs be determined on the papers
Footnotes
[1] Respondent's Statement of Facts and Contentions filed 18 August 2023, [2], [3].
[2] Ibid, [4], [5].
[3] Respondent's Statement of Facts and Contentions filed 18 August 2023, [6].
[4] Ibid, [8].
[5] Appellant's amended Statement of Facts and Contentions filed 12 February 2024, 1.
[6] TR1-2, LL27-33.
[7] TR1-3, LL7-22.
[8] TR1-4, LL39-49.
[9] TR1-6, LL13-16.
[10] [2003] 172 QGIG 1447.
[11] [2015] ICQ 031.
[12] (1991) CLR 84.
[13] Ibid, Op cit at 124-125.
[14] Kim v Workers' Compensation Regulator [2019] ICQ 14, [29].
[15] [2015] ICQ 031.
[16] Church v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 031.
[17] Ibid.
[18] TR2-73, L12 to TR2-76, L10.
[19] TR3-15, LL3-12.
[20] Respondent's Statement of Facts and Contentions filed 18 August 2023, [14], [16].
[21] Ibid, [18].
[22] Kavanagh v Commonwealth [1960] HCA 25; (1960) CLR 547, 558-559 (Fullagar J)
[23] Avis v WorkCover Queensland [2000] QIC 67; (2000) 165 QGIG 788, 788 (Hall P).
[24] Q-Comp v Green (2008) 189 QGIG 747.
[25] Newberry v Suncorp Metway Insurance Ltd [2006] QCA 48; (2006) 1 Qd.R 519, [27] (Keane JA, de Jersey CJ).
[26] [2006] 1 Qd R 519.
[27] [2006] 1 Qd R 519 ,[42]
[28] (2009) 191 QGIG 115.
[29] Ibid [119].
[30] Appellant’s Statement of Facts and Contentions filed 14 July 2023, 3.
[31] Ibid, 3.
[32] TR3-2, LL36-45.
[33] TR3-3, LL23-28.
[34] TR3-3, LL30-40.
[35] TR3-3, LL19-25.
[36] TR3-3, LL25-28; Exhibit 10 - Report of Dr Paul Trott, Consultant Psychiatrist dated 30 August 2022, p 26, [5].
[37] TR3-14, LL29-31.
[38] TR3-15, LL17-20, LL44-46.
[39] TR3-22, LL18-22.
[40] TR3-23, LL32-33.
[41] Exhibit 10 Report Dr Paul Trott, Consultant psychiatrist dated 30 August 2022, 19.
[42] Exhibit 2.
[43] TR1-85, LL4-22.
[44] Exhibit 15.
[45] Exhibit 15.
[46] Exhibit 3.
[47] TR1-93, LL33-46.
[48] Exhibit 10.
[49] TR2-39, L26 - TR2-40, L29.
[50] TR2-37, LL13-37.
[51] TR2-40, LL40-47
[52] Exhibit 16.
[53] TR3-21, LL42-45.
[54] TR2-78, LL4-23.
[55] TR2-89, L46 to T2-90, L4.
[56] TR2-93, LL25-32.
[57] Exhibit 10 Report of Dr Paul Trott, Consultant psychiatrist dated 30 August 2022.
[58] T1-50, LL.13-16.
[59] T1-52, LL.25-28.
[60] TR1-55, LL22-24.
[61] Ibid, LL7-13.
[62] TR2-47, LL10-13.
[63] Exhibit 5.
[64] TR1-105, LL18-47.
[65] TR2-47 L43 to TR2-48, L24.
[66] TR2-42, LL24-32.
[67] TR2-42, LL34-45.
[68] Moral essays: in four epistles. Epistle iii. Line 1. Glasgow. Printed by R. Urie, 1754.
[69] [2017] QCA 234.
[70] [2000] QIC 52; 165 QGIG 106 (21 September 2000).
[71] Ibid 107.
[72] [2017] QIRC 6.
[73] Ramsay v Watson (1961) 108 CLR 642, 645 (Dixon CJ, McTiernan, Kitto, Taylor and Windeyer JJ); see also Adelaide Stevedoring Company Ltd v Forst (1940) 64 CLR 538, 563-4 (Rich ACJ); Chattin v WorkCover Queensland (1999) 161 QGIG 531, 532-3 (Williams P), quoting Obstoj v Van de Loos (Unreported, Supreme Court of Queensland, Connolly J. hall, 16 April 1987).
[74] Holtman v Sampson [1985] 2 Qd R 472, 474 (DM Campbell, Macrossan and Thomas JJ).
[75] [2005] QSC 237.
[76] Ibid, [69]-[72].