QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:		Ventura v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 210
	
PARTIES:	
	Ventura, Mary Jean
(Appellant)

v

Simon Blackwood (Workers' Compensation Regulator)
(Respondent)
	
CASE NO:
	WC/2015/169	
PROCEEDING:
	Appeal against a decision of the Workers' Compensation Regulator
	
DELIVERED ON:
	7 December 2015	
HEARING DATES:	14 and 15 September 2015
24 September 2015 - Written submissions
	
HEARD AT:
	Brisbane	
MEMBER:
	Deputy President Kaufman	
ORDER:
	1.	The appeal is dismissed. 
2.	The decision of the Workers' Compensation Regulator is confirmed.
3.	The Appellant is to pay the Respondent's costs of, and incidental to, the appeal in an amount to be agreed between the parties or, failing agreement, on application to the Commission.
	
CATCHWORDS:	WORKERS' COMPENSATION – APPEAL AGAINST DECISION – credibility – time of occurrence of injury – hearing de novo –  significant contributing factor   
	
CASES:	Workers' Compensation and Rehabilitation Act 2003, s 31, s 32
	
APPEARANCES:	Mr. R. Dickson, of Counsel, instructed by Quinn & Scattini Lawyers, for the Appellant. 

Dr. M. Spry, of Counsel, directly instructed by the Workers' Compensation Regulator, for the Respondent. 
	
Reasons for Decision

[1]	Ms Mary Jean Ventura claims she suffered a compensable injury and on 20 March 2014 lodged a Notice of Claim for Damages under the Workers' Compensation and Rehabilitation Act 2003.  The appellant was employed by Alpha Flight Services Pty Ltd as a casual catering assistant during the relevant period.  It is not in contention that she was a worker.

[2]	The appellant alleges she suffered a psychiatric or psychological injury consequent upon an accepted physical injury sustained whilst she was at work in July 2013 (the alleged secondary injury), when a food trolley hit her lower right back.  This caused her to suffer an acute lumbar disc herniation, an injury for which she claimed and obtained workers' compensation.  Her claim in respect of the alleged secondary injury was rejected.  It is the appeal against that rejection that is the subject of this appeal.

The issues for determination

[3]	The issues for determination, are:

(a)	whether the appellant suffered an "injury" within the meaning of that word in s 32 of the Act; in this case a personal injury, being a psychological or psychiatric injury, that arose out of, or in the course of, her employment; and,

(b)	if so, whether the employment is a significant contributing factor to the injury, or alternatively, the major contributing factor to the injury depending on the law in force at the time the injury arose.

[4]	Prior to 29 October 2013, section 32(1) of the Act provided: 

"An injury is a personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury."

With effect from 29 October 2013, section 32(1)(b) of the Act relevantly provided: 

"An injury is a personal injury arising out of, or in the course of, employment if -
…
(b) for a psychiatric or psychological disorder - the employment is the major contributing factor to the injury."

[5]	This appeal is by way of a hearing de novo and Ms Ventura bears the onus of persuading me, on the balance of probabilities, that she has suffered a s 32 injury.

The workers' compensation claims

[6]	On 9 July 2013, the day of the incident, Ms Ventura lodged a workers' compensation claim form.  Unsurprisingly the nature of the injury was only described as an injury to her lower right back as a result of a trolley hitting her in the back.  This claim was accepted. 

[7]	On 4 October 2013 Ms Ventura cut her finger at work, she then lodged a workers' compensation claim form on or about 23 October which identified the injury as "cut finger with related work stress".  She also wrote two letters detailing the actions of her workmates and managers that she said constituted harassment and bullying. 

[8]	On 7 November 2013 WorkCover rejected Ms Ventura's claim for compensation for the bullying/situational stress psychological injury (the stress injury).  The evidence does not disclose the fate of the claim in respect of the cut finger. 

[9]	On 20 March 2014 Ms Ventura lodged her Claim for Damages, the subject of this appeal.

[10]	In her Notice of Claim for Damages, under the heading "Details of event resulting in injury", Ms Ventura stated that the event or incident occurred at approximately 8.50 am on 9 July 2013.  The particulars of "all injuries alleged to have been sustained because of the event" were said to be a "lower back injury – acute lumbosacral disc herniation" and "Psychological – Aggravated anxiety and depression".

[11]	The basis of the claim appears to be that as a result of the back injury and the pain, discomfort and mobility restrictions caused thereby, the appellant sustained a psychological injury which manifested itself as aggravated anxiety and depression.

[12]	It is notable that after describing the incident Ms Ventura went on to say: "I have also sustained anxiety and depression from this incident, which worsened in the three months following the incident due to the poor treatment, and increased bullying and harassment by my colleagues and management". She then set out particulars of several interactions at work that could be described as bullying and harassment.

Chronology of events

[13]	In addition to the sequence and timing of the various applications for compensation, the manner in which this matter unfolded is important and, for convenience, I set out a brief chronology of events:

18 March 2013	The appellant commences work at Alpha Flight Services Pty Ltd as a casual catering assistant.	
9 July 2013	The appellant is hit in the lower back by a trolley.
	
9 July 2013	The appellant attends her GP, Dr Mark Jeffery in relation to the trolley incident.	
9 July 2013	The appellant makes a workers' compensation claim in respect of a lower right back injury.	
About 12 July 2013	The appellant returns to work.	
24 September 2013	The appellant is issued with a first and final warning.	
4 October 2013	The appellant attends her GP, Dr Jeffery, complaining about a cut finger, and anxiety flowing from her supervisor swearing a lot and cutting back her hours.	
8 October 2013	The appellant attends Dr Jeffrey complaining of harassment and bullying, her supervisor causing her distress, as well as swearing in the workplace and another employee, Max, displaying a dildo, exacerbating her distress. 	
9 October 2013	The appellant lodges a handwritten complaint with her employer, complaining of feeling worthless after cutting her finger at work, and listing various complaints about her supervisor and colleagues.	
20 October 2013	The appellant is suspended from her employment pending investigation of allegations of misconduct against her.  She does not return to work.  	
22 October 2013	The appellant attends Dr Jeffrey and reports that she has been suspended and that she is acutely anxious.	
22 October 2013	Dr Jeffrey issues a Workers' Compensation Medical Certificate with diagnosis of workplace bullying/situational stress.  The stated cause is 'initial cut finger with associated work stress'.	
23 October 2013 - Approximately	The appellant makes a workers' compensation claim for a cut finger with related work stress.  The appellant includes a letter to WorkCover dated 22 October 2013. 	
7 November 2013	WorkCover rejects the appellant's 23 October application for workers' compensation for the stress injury on the basis that it arose out of reasonable management action and was therefore excluded from the definition of "injury" by operation of s32(5) of the Act. 	
8 November 2013	The appellant attends Dr Jeffrey and informs him WorkCover has rejected her claim for compensation and that she will get legal advice. 	
18 November 2013	The appellant attends Dr Jeffery and reports her back is hurting.	
 3 December 2013	The appellant attends Dr Jeffery as she requires a referral for a physiotherapist.  She is told that exercise may assist her depression. 	
9 January 2014	The appellant attends Dr Jeffery as she is suffering from anxiety and depression.	
14 January 2014	The appellant attends Dr Jeffery as she is suffering from depression.	
19 January 2014	The appellant attends Dr Jeffery as she is suffering from anxiety and depression. 	
29 January 2014	The appellant attends Dr Jeffery as she is suffering from depression.	
31 January 2014	The appellant attends Dr Jeffery as she is suffering from depression.	
2 February 2014	The appellant attends Dr Jeffery as she is suffering from anxiety.	
4 February 2014	The appellant attends Dr Jeffery as her injury from the trolley accident has progressively worsened and queries whether this might lead to a permanent disability application. 	
20 March 2014	The appellant lodges her Claim for Damages alleging a psychological injury as a consequence of the trolley incident in July 2013 (back injury) and ongoing bullying and harassment. 	

Did the appellant suffer a personal injury that arose out of, or in the course of, employment?

[14]	The appellant's case is that the physical effects of the back injury she sustained in July 2013 resulted in her suffering the secondary injury.  As a consequence of experiencing excruciating pain, "like being stabbed by a knife", she was no longer able to live the life she had previously enjoyed.  Amongst other things, she was unable to sleep properly, cook, clean, vacuum, mop, dance, go fishing, play golf, run mini-marathons, wear high heels, shower independently or maintain her sexual relationship with her boyfriend.  These restrictions on her previously physically active lifestyle are said to have adversely impacted on her emotional state, work and relationship, with a resultant loss of self-esteem and self-confidence, resulting in her suffering a chronic adjustment disorder with mixed anxious and depressed mood.

[15]	The chronology I have set out tells against her.  Despite allegedly suffering excruciating back pain from 9 July 2013 until the present - more importantly until the date of lodging her claim for damages, 20 March 2014 - Ms Ventura sought no further treatment from her GP, Dr Jeffrey, or any other doctor, for the pain from 9 July 2013 until 11 November 2013, four days after her claim for workers' compensation for the stress injury had been rejected by WorkCover.  During that period she did not see Dr Jeffrey until 4 October when she saw him in relation to a lacerated finger, during which visit she did not mention her back.

[16]	I agree with the submission of the regulator that it is inconceivable that Ms Ventura would have been experiencing excruciating back pain and not sought medical attention for some three months.  It is also inconceivable that when she did attend Dr Jeffrey about her cut finger, she did not mention the back pain.  I do not accept her evidence that it was unnecessary to mention the back pain to Dr Jeffrey, beyond the initial visit for it, because he was aware of it.

[17]	Dr Scott Campbell, a neurosurgeon called by the appellant, diagnosed her with a musculo-skeletal injury to her lumbar spine.  When asked about the apparent inconsistency of suffering excruciating pain and not seeing a doctor about it, he said that he did not find it unusual – "I think most normal patients don't go on and on about their back pain every time they see a GP.  They just accept that they've got it and they have their treatment and most of them just try and get on with things. … there's a lot of patients who just … grin and bear it."  

[18]	Whilst, as the doctor said, it might be within the normal limits to not continue complaining of it, in my view such an observation is not apposite in the case of Ms Ventura. This is not a case of not going "on and on about it".  Ms Ventura saw her doctor on the day of the trolley incident and told him of her back pain.  It beggars belief that she was in agonizing pain but would not seek further treatment.  It is one thing to grin and bear it after all reasonable attempts at a cure had failed; it is quite another to merely accept excruciating pain after only one visit to a GP and a prescription for fairly mild analgesics.  

[19]	Dr Michael Leong, a consultant psychiatrist, who was called by Ms Ventura, diagnosed her as having obsessive and histrionic personality traits.  He said that such persons are, "…prone to - they are melodramatic, they are theatrical and that's part of their - their personality."  That diagnosis is consistent with my observation of Ms Ventura in the witness box and suggests that she would not have returned to work three days after the injury and then stoically accepted excruciating back pain and not again visited her doctor to see what could be done about it. 

[20]	I do not accept that Ms Ventura suffered from severe back pain during the period 9 July to, at least, 18 November 2013, sometime after Dr Jeffrey's 22 October 2013 diagnosis of workplace bullying/situational stress and the rejection, on 7 November 2013, of her 23 October WorkCover claim. 

[21]	If necessary, I would infer that after WorkCover rejected her claim for a psychological injury as a result of alleged bullying, Ms Ventura conceived the strategy of attaching her psychological injury to her back injury.  I need not go that far because, even if it be the case that she suffers from a psychiatric or psychological condition, she has failed to persuade me that her back injury was a significant contributing factor to it, let alone the major contributing factor thereto.

[22]	This conclusion is confirmed by the evidence of Dr Leong who, in a report dated 28 July 2014, opined that the "alleged bullying and harassment in the workplace is the predominant cause of the claimant's current psychiatric disorder."  He went on to state that "the secondary injury related to her lower back injury occurring at the workplace on 9 July 2013 was a minor contributing factor as the claimant did return to work in her pre-injury duties three days after the index incident."

[23]	Dr Leong's evidence is that Ms Ventura suffered from a psychiatric or psychological injury. Dr Andrew Nielsen, a psychiatrist called by the regulator, is of the view that Ms Ventura does not suffer from a psychological or psychiatric injury.  In light of the conclusion to which I have come, I do not need to choose between the evidence two doctors.

[24]	The appellant called Mr Warwick Austin a person with whom she had lived intermittently for several years.  His evidence, albeit somewhat generalized, supported Ms Ventura's evidence about her inability to do many of the things she had been able to do prior to the trolley incident and the impact this had had on her.  Mr Austin's existence was only made known to her lawyers by Ms Ventura a few days before the hearing.  In the circumstances I allowed him to be called over objection from Dr Spry.  I found Mr Austin's evidence to be unconvincing because of its generality and his inability to remember details, perhaps because, he drinks quite heavily and "dates aren't great with me."

Was Ms Ventura's employment a significant contributing factor to the injury?

[25]	If the back injury was a significant contributing factor to Ms Ventura's psychiatric or psychological injury then it follows that her employment was a significant contributing factor to it as her back injury occurred at work. 

[26]	Dr Leong modified his 28 July diagnosis in a second report dated 10 September 2015, which was a few days before the hearing of this appeal.  In his second report the doctor confirmed that during his initial examination of July 2014 Ms Ventura:

"was predominantly focused mostly on the psychological impact of her perception of bullying and harassment in the workplace and that physical injuries from the alleged work incident on 9 July 2013 was at that time emotionally less significant whereas on today's examination, Ms Ventura's preoccupation with bullying and harassment in the workplace, though still evident, is much less to the forefront of her preoccupation and she is currently predominantly emotionally distressed by the consequences of her physical injury to her lower back which substantially restricts her physically active lifestyle and subsequent impact on her emotional state, work and relationship, and a loss of self-esteem and self-confidence."

[27]	It is notable that at the time of the first examination and report, 28 July 2014, Dr Leong diagnosed Ms Ventura as suffering from a chronic adjustment disorder with mixed anxious and depressed mood, as well as with obsessive and histrionic personality traits.  He reiterated this diagnosis on 10 September 2015 in his second report.

[28]	The significance of this seems to me to be that, as Ms Ventura had sustained a psychiatric or psychological injury by July 2014 as a result of the alleged bullying and harassment, her submission that, by the time of the hearing, the stressor that was the significant contributing factor to that same injury had transmogrified from bullying and harassment into the back injury cannot be sustained. As Dr Leong said, "she is currently predominantly emotionally distressed by the consequences of her physical injury to her lower back".  It seems to me that although she is now attributing the back injury, rather than the bullying and harassment, as the cause of her alleged secondary injury, she does not appear to have considered, until 11 November 2013 at the earliest and possibly not until 20 March 2014, that the back injury had caused, or significantly contributed to, her already existing psychiatric injury.

[29]	This analysis is consistent with the evidence of Dr Ian Cheung, an orthopaedic surgeon called by the appellant.  He examined Ms Ventura on 14 June 2014 and in his report of 25 June noted that a CT of the lumbar spine revealed a "L5/S1 central and right paracentral disc protrusion."  He noted that she was 'quite a verbose historian often elaborating on details seemingly not relevant to the question asked.  He noted that she had persisting pain in her back and symptoms down her right lower limb.  He also observed that she had not seen a treating specialist.  He further noted that "there is a significant symptom overlay … [and] … a significant psychological and emotional aspect to her injury and there are significant issues with workplace bullying which have all contributed to this lady's current situation."  When asked in cross-examination whether he had some concerns that Ms Ventura might have been exaggerating her symptoms the doctor said:  "Yep.  That's a concern.  In the conclusion I've put there, there is a second psychological emotional aspect as well … but there is no question of a psychosomatic overlay."

[30]	The analysis is also consistent with the evidence of Dr Neilsen, who assessed the appellant on 30 May 2014, and is of the opinion that she does not suffer from a psychological or psychiatric illness.  In his summary diagnosis, against the heading Axis I (Psychiatric conditions) he wrote: "No diagnosis."  He was cross-examined about this with Mr Dickson suggesting that the doctor had not diagnosed Ms Ventura as not having a psychiatric illness.  I accept the doctor's evidence that he had in fact concluded that she did not have a psychiatric illness.  His explanation was satisfactory and is also consistent with the conclusion he reached that Ms Ventura did not have any disability secondary to depression or anxiety and that, from a psychiatric point of view, there was no occupational unfitness due to a psychological injury. As I said above, it is not necessary to decide whether Ms Venture did sustain a psychiatric or psychological injury. 

[31]	During his oral testimony the doctor said that he considered that Ms Ventura had told him a pack of lies when she saw him.  He had noted several inconsistencies in her story in his report of 30 May 2014 and further expanded on them in a supplementary report of 9 September 2015.  Mr Dickson has submitted that I should not accept the evidence of Dr Neilsen, suggesting that he was partisan and meddlesome.  I would not reject the doctor's evidence as I found him to be persuasive.  His impression of Ms Ventura's credibility is consistent with mine.  I found Ms Ventura to be theatrical and prone to exaggeration.  I do not find her to be a witness of credit.  I accept Dr Spry's characterization of her evidence as being self-serving, evasive and contradictory.

Conclusion

[32]	Ms Ventura has not established, on the balance of probabilities that, even if she has a psychiatric or psychological injury, it arose out of, or in the course of, her employment, or even if it did that the employment was a significant contributing factor to the injury because her back injury was not a significant contributor. 

[33]	Having made that finding, it is unnecessary to consider whether the appropriate definition of "injury" is the post-29 October 2013 definition.  It follows that, if it is, I could not be satisfied that the employment is the major contributing factor to the injury.

[34]	Nor is it necessary to deal with Mr Dickson's interesting submission that, given this appeal is conducted as a hearing de novo, the evidence of Dr Leong, that Ms Ventura's condition is now attributable to her back injury because the significance of the bullying and harassment has diminished, results in the conclusion that the employment is the major significant contributing factor to her psychiatric or psychological injury.

[35]	The appeal is dismissed and the decision of the regulator is confirmed.  The appellant is to pay the regulator's costs of, and incidental to, the appeal in an amount agreed between the parties or, failing agreement, as determined by the Commission on application.