Background
The appellant carried out employment as a Tour Desk agent for Accord Australia & New Zealand Hospitality Pty Ltd (“Accor”), working at the Pullman Hotel in Cairns.
On 14 March 2019, the appellant lodged an application for compensation with WorkCover Queensland in respect of a lower back injury allegedly sustained through the course of her employment with Accor when lifting guest baggage. This application was accepted on 27 March 2019, with a provisional diagnosis of a musculoskeletal lower back injury. Following assessment, the application was accepted as a work-related aggravation of asymptomatic pre-existing pathology at the L4/5 level.
Thereafter, on 24 February 2022, the appellant served a notice of claim for damages, with her injuries described as “Lower back – bursitis – lateral both hips; lower back – annular tear L4/5, soft tissue and Gut – Gastritis”. A notice was then lodged on 20 April 2022 for the accepted aggravation of pre-existing pathology at L4/5. The notice also included a psychological injury, described by the appellant as depression.
On 7 September 2022, WorkCover rejected the appellant’s claim for her alleged psychological injury. This decision was confirmed by the respondent on 3 March 2023, with this decision being the subject of the appeal.
Case Background: Austin’s Work-Related Back Injury Claim
The Commission was asked to consider an application at the commencement of the hearing by the appellant to be granted leave to amend her Statement of Facts and Contentions, to expand the description of her physical injury from “an injury to her lower back region, including an annual 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.”
Otherwise, the issue for determination by the Commission was whether the appellant had sustained an “injury” within the meaning of s 32 of the Workers’ Compensation and Rehabilitation Act 2003 (QLD) (“the Act”). It was the appellant’s contention that she had sustained a psychological injury as a consequence of her physical injury, which was not admitted by the respondent.
Decision
As to the application for leave made at the commencement of the hearing, the Commission granted the amendment on limited terms, allowing the appellant to add the consequential physical injuries of the L4/5 condition, but limited to that.
As to the substantive issue of the appeal, the Commission heard evidence from the appellant who asserted that prior to the development of her work-related physical injury she was in good physical and psychological health. In her view, fluctuations and set-backs in relation to her physical condition, her poor response to treatment, ongoing pain, and the seemingly chronic nature of her lower back injury, had caused her to become depressed and despondent, have thoughts of suicide, and felt overwhelmed amongst other things.
The appellant relied upon Dr Paul Trott, Psychiatrist, whom she attended upon on 13 July 2022. Following a full psychiatric evaluation, Dr Trott opined that the appellant first developed an adjustment disorder/recurrent Major Depressive Disorder as a consequence of her chronic back pain, before this condition over time developed into a “Chronic Moderate Persistent Depressive Disorder”. Dr Trott also diagnosed the appellant as suffering from a moderate to severe comorbid somatic symptom disorder.
Evidence was also heard from Dr John Chalk, whose opinion diverged from Dr Trott. In Dr Chalk’s opinion, the appellant did not display sufficient symptomology to support a diagnosis of a psychiatric disorder. In his view, whilst the appellant had experienced a degree of uncertainty and anxiety post injury, the appellant had not psychologically decompensated.
The Commissioner summarised the real question that faced the Commission with reference to Alexander Pope, who stated “Who shall decide, when doctors disagree?” The Commissioner opined that Dr Trott’s report and process of reasoning “far more persuasive than the report of Dr Chalk”, noting the comprehensive nature of Dr Trott’s written opinion along with the extensive in-person consultation with the appellant that the opinion was premised upon. Additionally, the Commission noted that Dr Trott’s evidence was consistent with, and supported by, the accepted evidence given by the Appellant.
The Commission therefore concluded that the appellant had discharged the requisite onus and established that she had sustained an injury for the purposes of s 32 of the Act. It therefore ordered that the respondent’s decision be set aside and another decision substituted, namely, that the appellant’s application for compensation is one for acceptance.
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