QIRC upholds workers’ comp application made 17 months after first GP consult

The Queensland Industrial Relations Commission – QIRC – has validated a worker’s application for compensation lodged 17 months after the date she was handed a GP medical certificate for the injury.

Chantal Nicholson started work in the anatomy department of the University of Queensland in September 2016.

In August 2020 she filed an application for workers’ compensation for psychological injuries, specifically ‘work related stress/adjustment disorder’ for which she first sought medical treatment in March 2019.

The University – a Self Insurer – to reject her application on the basis that s 131 of the Workers’ Compensation and Rehabilitation Act 2003 (‘WCRA’) requires an application for workers’ compensation to be lodged within 6 months “after the entitlement to compensation for the injury arises”.

On review, the regulator upheld Nicholson’s contention that her first consultation for her compensable injury did not in fact occur until March 202o notwithstanding she saw GP San San Oo at the Oxley Family Medical Centre in March 2019 for work induced stress and anxiety.

UQ appealed that ruling to QIRC where Nicholson maintained her argument that she was not made aware in the consultation in March 2019 – because it was brief, no diagnosis was given, no treatment was recommended and she was only given a generic certificate for one day off work – that she had suffered a compensable work related injury.

Vice President Daniel O’Connor agreed that in order for a doctor to assess such an injury, “there must be evidence of some evaluation, ie an expression of opinion that the injury arose out of the employment”.

“I remain unconvinced that it has been demonstrated that a conclusion or opinion that Ms Nicholson has suffered an injury within the meaning of the WCRA was either formed or communicated to her in March 2019,” he ruled.

He also noted that her symptoms of psychological or psychiatric injury as at March 2020 were vastly different to those she was experiencing in March 2019.

Having been satisfied on those grounds that Ms Nicholson’s failure to give the notice within 6 months was reasonable, he ruled that the time limit as provided for in s 131(1) of the Act should be waived.

“It was in March 2020 that Ms Nicholson became incapacitated to work,” the Deputy president concluded in ordering that the Regulator’s decision to allow the application for workers’ compensation as one for acceptance, should be confirmed.

The University of Queensland v Workers’ Compensation Regulator [2022] QIRC 131 O’Connor VP, 6 April 2022

source https://cartercapner.com.au/blog/qirc-upholds-workers-comp-application-made-17-months-after-first-gp-consult/

Low impact injury, nil physical symptoms: not-at-fault driver wins $201k

Can a motor vehicle collision at very low impact speed cause a significant personal injury?

Consider the case of Brett Murphy whose taxi was rear-ended in Rockhampton in September 2017 by a Holden Rodeo driven by Leah Turner-Jones.

Murphy’s case was that the following vehicle was travelling between 30-60km/h and accelerating at the point of impact.

But his own dash cam footage and the minimal damage to both vehicles suggested otherwise.

When the matter came for determination before him, Justice Graeme Crow accepted the submission by Allianz – the CTP insurer for the at-fault vehicle – that it was “a very low speed, minor impact accident”.

His Honour went on to observe that those facts did necessarily mean a victim had not suffered from “a high level of symptoms of neck or spinal injury”.

As much was agreed by orthopaedist Prue Fitzpatrick who examined the 50 yr old Murphy in July 2018.

She concluded there was no clear organic pathology to explain the severity of his ongoing symptoms and that the former lawyer and now taxi-driver was likely suffering from a pain syndrome.

Neurologist Don Todman thought differently and diagnosed a post-whiplash syndrome for which he attributed a 7% whole person impairment

Justice Crow was critical of Dr Todman for categorising Murphy under DRE 2 in the absence of physical symptoms merely because of the patient’s own reports of pain.

“The difficulty with such an approach is that it elevates a patient’s subjective complaints of pain over the expert’s findings on examination,” His Honour observed.

“If that approach were correct, then expert orthopaedic surgeons, neurosurgeons, and neurologists need not examine a patient before forming an opinion, as emphasis is placed upon what a patient complains of rather than what is demonstrated”.

He adjudged that the inconsistency of Dr Todman’s findings on patient examination supported Dr Fitzpatrick’s opinion that there was no organic pathology to explain his severe ongoing symptoms and accepted her opinion that the whiplash injury ought to be characterised as 0% permanent impairment.

That said – noting Dr Fitzpatrick’s diagnosis of a pain syndrome and Murphy’s unchallenged evidence was that the injury had a big effect on the activities of daily living – Justice Crow went on to adopt item 88 (moderate cervical spine injury) rather than item 89 (minor cervical spine injury) as the relevant descriptor.

“It is appropriate to conclude that the injury is moderate, notwithstanding the injury has not caused moderate permanent impairment,” he ruled “because of the great deal of pain that Mr Murphy had suffered, and its negative impact on Mr Murphy’s activities of daily living”.

On that basis an ISV of 10 was allocated ie at the top of the range for an Item 88.

Murphy – a law graduate from Bond University who suffers from paranoid schizophrenia – was characterised by the insurer as dishonest by reason of a false declaration in his 2014 application for a commercial driver’s licence regarding his health status.

“I do not accept Mr Murphy’s explanation that this could have been an error and he had not intended to deceive,” Justice Crow ruled.

“On the other hand, Mr Murphy did not appear to exaggerate the effect of his whiplash injury [and] I formed the impression [he] was a credible witness. A fabrication that enables a plaintiff to obtain work or earnings is not necessarily destructive of credit”.

The court assessed his past loss of economic capacity at $59,675 and $107,786 – 50% of current earning projected for 17 years less 35% – for the future to make up a total award of $201k.

Murphy also asked for exemplary damages against Allianz by reason of its failure to have “properly rehabilitated him”. That claim was refused as being “not maintainable at law”.

Murphy v Turner-Jones & Anor [2022] QSC 40 [2022] 14 QLR Crow J, 31 March 2022

source https://cartercapner.com.au/blog/low-impact-injury-nil-physical-symptoms-not-at-fault-driver-wins-201k/

Appeal court upholds tattoo removal claim due too much laser

Tattoo removal is a billion-dollar industry and will grow bigger as a result of the wide availability of laser removal sparks an uptick in tattoo regret syndrome.

The painful treatment for removal has remained largely the same for decades and has varying degrees of success.

In June 2017, Zeinab Daemolzekr attended a Cosmetic Skin Doctors (CDC) clinic for treatment to remove tattoos from each of her forearms.

She had an initial consultation with Dr Galina Shvetsova – who recommended six treatment sessions – and explained the process to her patient.

The ink in a tattoo is located in the dermis – under the outer layer of the skin or epidermis – and consists of particles too large for white blood to remove naturally, making a tattoo permanent.

Laser treatment aims to remove the ink from the dermis without damaging the epidermis by causing the ink particles to become smaller so that the body’s macrophages (white blood cells) can remove them.

After “numbing cream” was applied a local anaesthetic was injected at numerous points of both tattoos before the laser treatment was administered in a separate room by one of the clinics several nurses, Nurse Nicola Clow.

The treatment was however far more painful than what Daemolzekr had experienced during an earlier session at another clinic.

Nurse Clow responded pain by administering a Lignocaine injection for anaesthetic relief and said – according to Daemolzekr – “we will turn it up so that there will be less sessions” needed to remove the tattoo.

After the treatment, the nurse bandaged her arms. Once the anaesthetic started to wear off they felt like they were “on fire” and she was in a lot of pain.

Daemolzekr returned to the clinic and to her GP over the next week complaining of inflammation and infection to the wound.

General Practitioner Sidra Akhtar recorded that she had ‘second degree burns post tattoo removal with laser’, and ‘should see a plastic surgeon’. She was admitted to the Monash Medical Centre where good quality photographs were taken of the burns.

Due to financial constraints she did not consult a plastic surgeon until February 2019 when it was noted that “severe scarring as a result of the laser as a result of the laser tattoo removal”.

In the inevitable injury compensation contest, Daemolzekr recruited cosmetic and laser medicine specialist Adam Rish whose testimony was that the scarring and full thickness burns to the forearms were a result of “inappropriately high fluence”.

He explained that laser treatment applied at too high a fluence – ie energy applied per cm of skin surface – causes particles to flicker off, leaving a visible hole or holes in the treated area.

“The very fact of a burn speaks of excessive fluence,” he observed. “The Hertz will make the laser faster but will not necessarily damage the dermis. The excessive fluence is really the reason for damage”.

Evidence was led on behalf of the clinic that the laser machine was set for a “fluence” of 4.2 joules/cm².

According to Dr Rish the laser at that setting “would be highly unlikely to have caused burns or scarring” as it in fact did.

Asked why there was no sign of a full thickness burn when she returned to the CDC clinic three days after her treatment, Dr Rish explained: “It’s evolving. It’s underneath the skin. There is still an intact layer of dead tissue on top of the wound, so it hasn’t sloughed off yet”.

One of the features of Daemolzekr’s post-procedure presentation was that the ink had disappeared.

While Rish explained that was a consequence of the damage to the dermis caused by the too high fluence, his colleague Ian Holten thought that – and the scarring – could only have been the result of subsequent laser treatment or a separate trauma.

The appeal judges upheld the primary judge’s preference for the analysis provided by Dr Rish given his experience in having conducted 6000 or so of such procedures himself and the logic of his conclusions.

Dr Holton on the other hand was “not an impartial expert” and “appeared to assume it was his function to attribute legal responsibility”.

“His Honour’s findings were clearly open to his Honour, and certainly not glaringly improbable,” observed their Honours in a joint judgement.

They refused to leave to appeal and Ms Daemolzekr get to keep the damages assessed in the County Court.

CDC Clinics v Daemolzekr [2022] VSCA 54 Niall, Kennedy and Macaulay JJA, 7 April 2022

source https://cartercapner.com.au/blog/appeal-court-upholds-tattoo-removal-claim-due-too-much-laser/

Precautions required “from the moment she started the job”: $435k psych injury win

The High Court has rejected the contention that an employer enjoys immunity from liability for adverse health and safety outcomes to personnel who voluntarily sign up to do high risk jobs.

Zagi Kozarov was recruited in 2009 to a Specialist Sexual Offences Unit in Melbourne to work with 24 other lawyers prosecuting serious sexual offences involving adult and child victims.

The newly admitted solicitor interacted with survivors of abuse and was intimately exposed to their traumatic experiences via trials, meetings, witness preparation and viewing explicit child pornography.

A sole parent of young children who was dedicated, hard-working, ambitious, she was one of many staff who met after hours in April 2011 to discuss concerns about their wellbeing.

The group signed a memo to management expressing concerns about increasing court commitments; being required to take work home on weeknights and on weekends; and that they were experiencing a marked increase in symptoms of stress.

A “sentinel event” – after a confrontation with a supervisor who incorrectly accused her of turning up to work late – marked her return to work in August 2011 following a two-week absence on sick leave.

Her highly emotive and agitated response to the incident was so disproportionate to what had occurred and so dramatic that – according to the Supreme Court judge adjudicating her injury compensation claim – management ought to have known that her mental state was at breaking point.

By the end of August 2011, a reasonable person in the position of the respondent would – ruled Justice Jane Dixon in the Supreme Court of Victoria – “have adverted to the evident signs and observed that she was failing to cope with her allocated work and that her mental health was at risk”.

The trial judge also found that Ms Kozarov would have accepted an offer of rotation out of the SSOU to work in another section, thereby avoiding the exacerbation of her PTSD that occurred after that time.

That finding was rejected by the Court of Appeal which concluded she would have been unlikely – because she had applied for a promotion and was committed and dedicated to her work – to have accepted any rotation out into another section of the Office of Public Prosecutions.

On appeal to the High Court, their Honours observed that an employer engaging a worker to perform specified duties is entitled to assume – in the absence of evident signs warning of the possibility of psychiatric injury – that the employee considers that he or she is able to do the job.

But the assignment of potentially dangerous tasks imposes on the employer a duty to be proactive in the implementation of measures to ensure the work is performed as safely as possible and to act on information it later acquires about – in the case of psychiatric injuries – the vulnerability of a particular worker.

Applying those principles to the current case they noted that the employer was obliged – by reason of the nature of her work – to take such precautions from “the moment that Ms Kozarov commenced work”.

The risk of injury was already recognised by the employer in its “Vicarious Trauma Policy”, which identified vicarious trauma as “an unavoidable consequence of undertaking work with survivors of trauma”, and as a “process [that] can have detrimental, cumulative and prolonged effects on the staff member”.

Her signature upon the staff memo, an excessive file load, the high proportion of child cases in her file load and her patterns of working late and on weekends and public holidays, were all “evident signs” of a potential metal crisis.

As more “evident signs” of psychiatric injury emerged, the employer ought to have appreciated a considerable increase in the likelihood and seriousness of a psychiatric injury and the greater need to take precautions to mitigate against those risks.

Psychiatrist Professor Alexander McFarlane – an expert in PTSD – supported the view that Kozarov would have ultimately accepted a rotation out given that a “significant majority” of people he advised accepted his recommendation to do so.

And although it was “inherently likely” that Kozarov – once advised of the risks of serious psychiatric injury – would have accepted advice to avoid those risks, their Honours concluded that the employer would not been entitled to accept her refusal to be rotated out.

“An employer will not comply with the common law duty to ensure a safe place of work by acquiescing in the refusal of an employee to be rotated from a position that involves a high risk of serious injury,” observed Justice James Edelman.

Kozarov’s appeal on the “rotation out” point succeeded and the order of the trial judge that she be paid $435k by way of damages was reinstated.

Kozarov v Victoria [2022] HCA 12 Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward, Gleeson JJ, 13 Apr 2022

source https://cartercapner.com.au/blog/employers-must-ensure-high-risk-jobs-are-performed-safely/