Mark Anthony Taylor v Annie Roncevic [1997] ACTSC 21 (21 April 1997)

SUPREME COURT OF THE ACT

MARK ANTHONY TAYLOR v. ANNIE RONCEVIC
No. SCA59 of
1996
Number of pages - 6
Workers Compensation

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

GALLOP J

CATCHWORDS

Workers Compensation - Appeal against award in favour of worker - no appellable error demonstrated - no new principle of law.

Workers Compensation Act 1951

Magistrates Court (Civil Jurisdiction) Act 1982

HEARING

CANBERRA, 14 February 1997 (hearing), 21 April 1997 (decision)

21:4:1997

Counsel for the Appellant: Mr M. Cranitch SC

Instructing solicitors: Messrs Abbott Tout Harper & Blain

Counsel for the Respondent: Mr J. Pappas

Instructing solicitors: Pappas J Attorney

ORDER

THE COURT ORDERS THAT:

1. Appeal be dismissed.

2. Appellant to pay the respondents costs of this appeal

DECISION

GALLOP J

1. This is an appeal against a decision of Magistrate Ward delivered on 29 August 1996. In an application for an award of workers compensation the respondent was found by the learned Magistrate to be totally incapacitated for work from 31 August 1994 and continuing as a result of personal injury arising out of or in the course of her employment by the appellant. The appellant was ordered to pay compensation to the respondent in accordance with the provisions of the Workers Compensation Act 1951 ("the Act"). Additionally, the appellant was also ordered to pay the respondent's hospital and medical expenses and the costs of the Application for Arbitration.

2. On 14 February 1997, I dismissed the appeal and ordered costs to be paid for by the appellant. I said I would deliver reasons later which I now do.

3. By Notice of Appeal filed 10 September 1996 the appellant appealed against the whole of the order of the Magistrate. The grounds of the appeal were as follows:

1. The Magistrate erred in his interpretation of the medical evidence and the effect of the thermogram carried out by Dr Cassar in connection with the diagnosis placed upon the respondent by Dr Voon.

2. The Magistrate erred in failing to deal with the medical evidence concerning the respondent's state of depression particularly when the evidence of Dr Veness in cross examination was taken into account.

3. The Magistrate erred in law in failing to resolve the medical issues between the parties by clearly defining the relationship between the respondent's incapacity and the condition from which she suffered which resulted in such incapacity.

4. The Magistrate erred in finding the respondent totally incapacitated when there was clear evidence to the effect that this was the case (SIC).

5. The Magistrate failed to address the issue of total or partial incapacity in a manner which considered the available market place into which the respondent could sell her labour.

4. The orders sought by the appellant are as follows:

1. That the order of the Magistrate be overruled and in lieu thereof there be substituted an award for the respondent.

2. In the alternative, that there be an award in accordance with the evidence for such amount and for such period as may seem appropriate to the court.

3. An order for costs of the hearing and of the appeal and any other appropriate order.

5. The right of appeal is conferred by s 26 of the Act. The appeal is a rehearing on the evidence before the Magistrates Court pursuant to Part XIXA of the Magistrates Court (Civil Jurisdiction) Act 1982. Neither the appellant nor the respondent sought to adduce further evidence on the hearing of the appeal.

The Magistrate's decision

6. The following findings of fact were made by the Magistrate and were not disputed on the hearing of the appeal.

7. The respondent was 21 years old at the time of hearing the application for workers compensation. She was employed as a dental nurse by the appellant, and she had commenced this employment as a 16 year old. The respondent suffered various sicknesses from a number of internal problems at approximately the age of 13, including cysts and bowel problems. The Magistrate accepted that the diagnoses varied and that the respondent had undergone various minor operations. He also felt it necessary to take into account the fact that the various gynaecological problems incurred by the respondent could be the source of the back pain complained of.

8. Until August 1994, the respondent did not lose time from work as a result of back problems, despite the fact that it was some months prior to this date that she began having these back problems.

9. While at work in August 1994, the respondent experienced acute back pain while she was bending over a patient. She notified her employer of the complaint and sought medical treatment. She returned to work on 30 August 1994 but as a result of her back pain was forced to leave work on 31 August 1994.

10. She attempted to return to work in mid-September 1994 but found this impossible because of her lower back pain. Shortly after this she left her employment with the appellant and has not worked since. The respondent claims that she is unable to undertake work of any kind as a result of the back pain she experiences.

11. The Magistrate then proceeded to disseminate the medical evidence. He acknowledged that the medical opinions differed, and he duly noted the different diagnoses and the conflicting expert opinions on the cause of the injury. He concluded that the "preponderance of the medical opinion is that the applicant sustained injury to her back arising out of or in the course of her employment.... While the doctors differ as to the precise mechanism as to how her back comes to cause her pain the majority conclude it does and will continue to do so for some time into the future and was either directly caused by her work or accelerated or aggravated by it."

12. The Magistrate was of the view that it was reasonable to conclude that what appeared to be a seemingly harmless back strain developed into a depressive illness as a result of the aggravation caused to it by a combination of the work injury, her age and personality, the inability to work without experiencing pain, a pregnancy termination and her existing abdominal condition. The Magistrate continued, and stated that "the effect of this is, even if she does not have a bad back she thinks she does and it all amounts to the same thing."

13. The Magistrate found that the respondent's back pain was either a direct result of or contributed to, by her working conditions, and it was this pain that led to the onset of a depressive illness. In the Magistrate's opinion, this condition amounts to an inability to work and it was the respondent's employment with the appellant that contributed to this. To the suggestion that there was no evidence to support such a finding and that the respondent was feigning symptoms, the Magistrate refuted the suggestion by adverting to the various medical reports attesting to the respondents bad back and found a lack of logical support for such a claim. Specifically, the Magistrate pointed out that none of the respondent's claims was refuted by any of the evidence. Evidence showing the respondent dancing at her wedding was explained by the respondent to the satisfaction of the Magistrate.

14. He concluded that the evidence suggested the respondent believed she was a physical invalid for the foreseeable future, even though based on the evidence he did not believe that this was the case. The fact that the respondent believed that she was a physical invalid led to the conclusion that the respondent had suffered an injury arising out of or in the course of her employment on or about 31 August 1994 and had been totally incapacitated from that date.

The Appellant's submissions on appeal

15. The appellant submitted that the Magistrate misconceived the medical evidence, or alternatively that he failed adequately to enunciate his reasons so that his process of reasoning could be followed to enable an appropriate assessment to be made on appeal.

16. The appellant further submitted that the Magistrate's final conclusions cannot be maintained and contended that the Magistrate's statement that the "preponderance of the medical opinion is that the Applicant sustained an injury to her back arising out of or in the course of her employment" was not supported by the evidence. The appellant cited the following medical evidence:

1. The Magistrate accepted the opinion expressed by Dr Voon that was based upon the reading of a thermogram. The appellant submitted that in arriving at his diagnosis, Dr Voon completely ignored the fact that there was no specific dermatomal distribution of the pain. In addition, the appellant claimed that Dr Voon believed Dr Corry was against the diagnosis of a sacro-iliac strain, when in fact he was not. The fact that Dr Corry concluded there was a sacro-iliac joint sprain was acknowledged by the Magistrate.

2. Dr Keiller found that the respondent had developed spontaneous low back pain and the appellant contended that this diagnosis arose out of a gross overeaction on examination which led the doctor to be unsure of his diagnosis. The appellant claimed that Dr Keiller explained the appellant's inconsistencies on examination as resulting from an emotional overlay that was really a "cry for help".

3. Dr Veness, Psychiatrist, expressly discounted overlay as a possibility and diagnosed a depressive illness resulting from her chronic pain and discomfort. He did not make a specific diagnosis of back pain but was prepared to accept the diagnosis of the other doctors. However, the appellant submitted that Dr Veness did not possess the relevant material and had conceded in cross examination that his understanding of the aetiology of her condition may have been significantly different if he had had access to the additional information that was provided to him at or shortly prior to the hearing.

4. Dr Opie was firmly against the proposition that the respondent had low back pain resulting from her employment, and this was accepted by the Magistrate.

5. The appellant submitted that the Magistrate gave undue weight to one sentence in Dr Davis' report and mistakenly concluded that Dr Davis had discarded the possibility that the respondent was feigning symptoms. The appellant pointed out that Dr Davis referred to an ingrained syndrome and the possibility that she was suffering from a conversion hysteria or fabrication that had become ingrained in her presentation.

17. On the basis of the above medical evidence, the appellant submitted that the preponderance of the medical evidence is not in favour of the respondent having suffered an injury to her back arising out of or in the course of her employment.

18. It was further submitted by the appellant that in relation to the respondent's state of depression, the evidence of the only psychiatrist who was called was in doubt, and should not have been given any weight at all.

19. In the alternative, the appellant contended that the reasoning of the Magistrate was so obscure that he infringed the axiomatic principle that a Magistrate must give sufficient reasons to enable his reasoning process to be discerned for the purposes of review.

20. The final grounds of the appeal relate to the Magistrate not accepting that the respondent was a physical invalid for the foreseeable future. The appellant submitted that Dr Voon conceded that if there was anything wrong with the respondent, it would have resolved within 12 months of consultations with Dr Corry. The appellant concluded that there was no evidence if one sets aside the psychological condition from which she suffers, of any ongoing and totally incapacitating condition for which she had been be unsuited for work. To further support this, the appellant claimed that the respondent conceded at least in part that she may have been able to do something but at the time of the trial she did not think she was ready to return to employment.

"I may be able to do something, but I'm not quite sure. At the moment, I don't think I am ready."

The Respondent's submissions on appeal

21. It was submitted on behalf of the respondent that there was no merit to the claim that the Magistrate failed to state his reasons. The Magistrate's reasons, submitted the respondent, speak for themselves.

22. Further, the respondent submitted that it was incorrect to claim that the Magistrate simply accepted the opinion of Dr Voon. The Magistrate accepted Dr Voon's evidence because he had access to "some objective medical evidence".

23. The respondent submitted that the appellant did not criticise the reliance by Dr Voon upon the thermography results, and no evidence was led to contradict the thermogram nor to discredit it in any way as a diagnostic tool.

24. Further the respondent claimed that it was wrong to suggest that Dr Voon's diagnosis completely ignored the fact that there was no specific dermatomal distribution of pain. The most that Dr Voon conceded was that pain is "quite often" in a particular dermatomal pattern. In examination in chief in the lower court, Dr Voon agreed that to be certain of his diagnosis he would expect pain to be in a dermatomal pattern, yet in re-examination Dr Voon said that on the balance of probabilities he adhered to the diagnosis he gave in his earlier evidence.

25. The respondent contended that it was clear from a reading of the whole of the cross-examination of Dr Voon that his diagnosis was strengthened by the thermography undertaken by Dr Cassar.

26. It was submitted by the respondent that there was no evidence to support the appellant's contention that Dr Voon believed that Dr Corry was against the diagnosis of sacroiliac strain, neither was it correct to suggest that the Magistrate accepted that finding by Dr Corry. The appellant contended that it was clear that the Magistrate's reference to Dr Corry's opinion regarding a possible "sacroiliac strain" was mentioned merely as one of a number of opinions supportive of a general and genuine complaint of a painful back. Dr Voon soundly rejected any proposition that the back pain could be the result of "gynaecological problems", "gastroenterological problems" etc.

27. The respondent further submitted that there was no evidence supporting the appellant's contention that Dr Keiller was unsure of his diagnosis. Rather, the plaintiff pointed out that the doctor stated that "this lady developed spontaneous low back pain, following a period of prolonged postural strain with some heavy lifting at times during the course of her employment as a dental nurse" and further almost certainly there is an emotional overlay and she requires both psychological support and encouragement, physiotherapy, a home based exercise program and properly referral to a proper, medically qualified Rehabilitation Specialist at Woden Valley Hospital if she fails to improve." It was the respondent's contention that the view expressed by Dr Keiller in his report of 3 April 1995 which was tendered by consent and upon which Dr Keiller was not cross-examined was perfectly consistent with the views expressed by Dr Veness.

28. The appellant also made a simplistic assessment of Dr Veness' evidence when he concluded that the doctor "diagnosed a depressive illness resulting from her chronic pain and her discomfort". In Dr Veness' opinion the respondent was "seriously depressed".

29. It was submitted on behalf of the respondent that it was incorrect to suggest that Dr Veness was "not in possession of relevant material". The respondent stated that the appellant was referring to the doctor's knowledge of a pregnancy termination the respondent had undergone. The respondent submitted that it was clear from the respondent's evidence in the Court below (that was not challenged) and from the re-examination of Dr Veness that he was, in fact, informed of the pregnancy termination.

30. It was contended by the respondent that the Magistrate did not accept the opinion of Dr Opie that she did not have low back pain resulting from her employment and that the only use the Magistrate made of Dr Opie's opinions was to note the plaintiff's complaint of back pain. It was obvious that the Magistrate rejected Dr Opie's view that the low back pain could be attributed to the plaintiff's abdominal problems, in favour of the views expressed by Dr Voon under cross-examination.

31. In relation to grounds 4 and 5 of the appeal, the respondent submitted that it was not necessary for the Magistrate to accept that the respondent was a physical invalid for the foreseeable future, in order to arrive at the conclusion he reached. The respondent contended that there was no evidence, particularly no clear evidence, to suggest that the respondent's condition would resolve within twelve months of her going to see Dr Corry, and this proposition was never conceded by Dr Voon.

32. The respondent points out that Dr Corry was of the view that she could not cope with return to work as a dental nurse but rather she would be fit for lighter employment where she could change her activities periodically and where lifting and handling were limited. The plaintiff quoted the doctor as saying "The prognosis is guarded with some mild long-term disability likely and she may require some recurring treatment for the next twelve months at least".

33. Having considered all those submissions, I was satisfied that no appellable error had been demonstrated. There was evidence to support the Magistrate's findings of facts, which have not been shown to be clearly wrong. Accordingly I dismissed the appeal.