WorkCover Queensland and Ors v Padua [2016] QDC 115

[3] Before me the three respondents seek a declaration that Mrs Padua is not entitled to seek damages in respect of the injuries that are the subject of a Notice of Claim for Damages of 29 May 2015 because of the provisions of s 235A and s 237 of the Workers Compensation and Rehabilitation Act 2003 (as amended) (the Act).

[4] The Notice of Claim is Tab 19 of Ex 1. Details of the injuries referred to in that document set out in pages 5 and 10 thereof as follows;

By reference to the workers compensation rehabilitation Regulation 2003 I consider my injuries fall into the following categories;

Item 90 - moderate lumbar spine injury - ISV 16 to 35.

Item 154.4 - minor scaring to apart of the body other than the face - ISV 0 to 3.

The dominant injury is the lumbar spine injury. She clearly describes in the notice of claim injuring herself as a result of lifting and carrying tubs of meat weighing up to 15kg, reaching into awkward and tight spaces, and doing so when lifting tubs of meat.

[5] It can thus be seen that the "injuries" that are the subject of the Notice of Claim for Damages of 29 May 2015 are both a physical lumbar spinal injury and a mental or psychiatric disorder.

[6] It is necessary to consider provisions of the Act, and in particular amendments thereto which became effective in October 2013 in order to understand the issue before me. It is clear however that the principal issue for determination concerned whether when Mrs Padua consulted her general practitioner (GP) between 19 July (when she first saw Dr da Costa) and 30 September 2013 (when she last saw her prior to the October amendments) she did so for the back injury the subject of her Notice of Claim for Damages.

[7] A secondary issue concerned whether, when she saw Dr da Costa on 30 September for what were clearly mental health issues, employment was then a significant contributing factor to that condition. If I were to determine it was not, a further issue concerned whether employment is the major significant contributing factor, in relation to a psychiatric injury diagnosed by a psychiatrist Dr Axel Estensen as an adjustment disorder, amounting to a 10% whole person impairment.

[8] The primary dispute arises in this case because of amendments to the Act effective from 15 October 2013. After that time workers were limited in their ability to seek damages by reason of such amendments. The amended Act provides, so far as here relevant, as follows:

"237 General limitation on persons entitled to seek damages

(1) The following are the only persons entitled to seek damages for an injury sustained by a worker -

(i) has received a notice of assessment from the insurer for the injury and the DPI for the assessed injury is more than 5%; or

[9] Previously the underlined words were not included in the section.

[10] Section 235A of the Act is relevant to the determination of the date of injury, for an over period of time injury, as the injury suffered by Mrs Padua is said to be. That section provides as follows;

"235A Date of relevant health practitioner consultation taken to be date of injury

(1) For the application of this chapter in relation to an injury sustained by a worker that happens over a period, the date on which the worker first consulted a relevant health practitioner about the injury is taken to be the date of the worker's injury."

[11] It is accepted that Dr da Costa is a relevant health practitioner for the purposes of that section.

[12] The provisions of s 31 and 32 of the Act, are also relevant.

[13] Section 31 provides as follows;

(1) An event is anything that results in injury, including a latent onset injury, to a worker.

(2) An event includes continuous or repeated exposure to substantially the same conditions that results in an injury to a worker.

(3) A worker may sustain 1 or multiple injuries as a result of an event whether the injury happens or injuries happen immediately or over a period.

(4) If multiple injuries result from an event, they are taken to have happened in 1 event.

[14] Section 32 so far as relevant provided, up to 28 October 2013 as follows;

(1) 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.

(2) ....

(3) Injury includes the following-

(b) 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 -

(iii) a medical condition, if the condition becomes a personal injury or disease because of the aggravation;

(4) 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."

Thereafter the definition of injury in s 32 was amended to require, for a psychiatric or psychological disorder that employment is the major significant contributing factor to the injury. A similar amendment was made in relation to an aggravation of a psychiatric or psychological disorder.

[15] Factual CircumstancesIn relation to the physical injury, it is not disputed that Mrs Padua saw Dr da Costa in July 2013 complaining of pain. What is in dispute is whether or not that complaint of pain related to the same injury that is the subject of her Notice of Claim for Damages of 29 May 2015.

[16] Mrs Padua commenced work with Cannon Hill working at the premises of ACCP in July 2012. She eventually ceased work on the 27 November 2014. The nature of the work is described in a report of Dr Justin Ludcke on 21 January 2016. His description of her work is not disputed. He says the work involved Mrs Padua taking offal from a conveyer belt, placing it into a number of tubs placed in front of her. To do so he says she was required to lean forward some distance to reach the offal. He also says that periodically she was also required to lift tubs of offal, weighing from 12kg up to 27.56kg. He concludes;

"The assessment of offal packing tasks demonstrated the presence of significant risk factors for musculoskeletal injury and it was shown that these could have been identified by the employer through a view of injury records, task assessments and employee consultation using a risk management approach highlighted in guidance documents. Research also demonstrated that the work conducted by Ms Padua involving repetitive, awkward posture and forceful overexertion, provided high risk factors associated with the back damage"

[17] Dr Ludcke says the system could have been rendered safe by redesign of the work system to reduce the reach and consequently reducing the forward flextion required, to undertake her work and by redesigning what occurred when machinery broke down. Mrs Padua said that such breakdowns happened frequently, and that in order to continue processing of the offal, tasks such as lifting and moving of the tubs during such times was done manually.

[18] His report supports the view that spinal injuries were a very foreseeable risk of the system of work which could have reasonably been avoided.

[19] Mrs Padua saw Dr da Costa for the first time on 19 July 2013. I shall refer to the detail of that consultation shortly. The respondents contend that the spinal injury the subject of the Notice of Claim occurred only in 2014, and that this early consultation related to an unrelated injury. Because the spinal injury was subsequently assessed as being a 0% whole person impairment, she would in such circumstances be precluded from bringing an action for damages in respect of such an injury.

[20] In order to understand the factual contention of the respondents it is necessary to refer to a phone call between Mrs Padua and Jarred Vickers, an employee of WorkCover, of 19 August 2014. Because of Mrs Padua's language difficulties a Portuguese translator was used. In a memorandum of that conversation (pages 10 and 11 of Tab 14, Ex 1). Mrs Padua is reported as saying she had pain in her back and left leg which "started in the begging (sic) of the year" and that she then had a scan of 26 June. Mrs Padua was told by Mr Vickers that WorkCover "cannot use the begging (sic) of the year for the date" but she is recorded as having said she "couldn't remember the date that she hurt herself". She is said to have reported that she had not ever experienced the symptoms of pain in her lower back and leg before.

[21] Perhaps more important in understanding the view taken by WorkCover is the Medical Certificate of Dr da Costa of 12 August 2014 (page 35 of Tab [1848] EngR 240; 2, Ex 1). In it Dr da Costa says Mrs Padua's injury is "back pain radiating into the left leg and associated paraesthesia". She says Mrs Padua was first seen by her in relation to that injury on 28 March 2014. She also said the cause of the injury was "gradual aggravation of lower back pain with prolonged standing and lifting of heavy weights".

[22] The attitude of the respondents to Mrs Padua's claim is, in such circumstances, understandable. In my view, however, it is wrong.

[23] The records of Dr da Costa and of a physiotherapist engaged by Cannon Hill in my view show that to be so.

[24] The records of Dr da Costa of Ormeau Family Practice (Tab [1848] EngR 240; 2, Ex 1) reveal Mrs Padua saw Dr da Costa on 19 July 2013. It was recorded that Mrs Padua, "has some pain in left flank radiating in super-pubic area (5mths), worse on carrying heavy things". She also had some unusually heavy uterine bleeding. Dr da Costa arranged for ultra-sounds of her abdomen and pelvis and for blood tests.

[25] These were obviously done because on the 31 July, when Mrs Padua next saw Dr da Costa, she records "blood and US all good except raised WCC". Importantly Dr da Costa records on that date "suspect flank pain likely from lower back". She prescribed Celebrex, an anti-inflammatory and gave Mrs Padua advice in relation to lifting, again indicative of Dr Costa's belief her symptoms were related to a spinal problem. She also prescribed Mintec, in case her flank pain was due to irritable bowel syndrome, but because of Mrs Padua's later history that can in my view now be discarded as a cause of her flank pain.

[26] On 26 September 2013, Mrs Padua saw Ms Judy Dunning, a physiotherapist engaged by Cannon Hill to treat its employees as required. A pain diagram prepared at that time by Ms Dunning (page 3 of Tab [1848] EngR 843; 3, Ex 1) on information provided by Mrs Padua indicates pain in Mrs Padua's right shoulder (an unrelated and irrelevant thoracic spinal problem) and in the back of both of her upper thighs. It is recorded that the left thigh was more painful than the right. This is significant, in my view, because the problem clearly identified in march 2014 was of pain radiating into her left leg.

[27] In my view this diagram is a critical piece of evidence. In so far as the it does not show that the pain radiated further down the leg than is shown in the diagram, I note that the diagram was prepared by Ms Dunning. Because of the difficulty Mrs Padua had with the English language it is possibly not as accurate as if she had drawn the diagram herself. In any case, my own experience of such things over many years of practice is that patients are often not entirely accurate in describing such matters, and tend to concentrate on areas of the worst pain, rather than identifying all areas of pain. I do not conclude from the pain diagram that the plaintiff was not then getting pain radiating further down her left leg than shown in the diagram. She said in evidence that she was. I accept that is certainly possible. I do not however accept her statement, given in evidence, that she told Dr da Costa in July 2013 of pain in her second left toe. I accept the evidence of Dr da Costa that such a complaint was not made until the consultation on 28 March 2014 to which I shall shortly refer.

[28] Details of a subsequent consultation with Ms Dunning on 31 October are important to an understanding of the complaints of Mrs Padua to Dr da Costa in July 2013. On 31 October Mrs Padua attended upon Ms Dunning with her husband. His English is better, and he acted as a translator. Ms Dunning records that Mrs Padua complained of a 2 month history of left leg pain "proportional" with prolonged standing of 5 minutes duration.

[29] Mrs Padua next saw Dr da Costa on 30 September 2013. She reported the drugs (Celebrex and Mintec) were "working well" but that she was now also using Panadol Osteo, a stronger than usual paracetamol which I understand can be bought over the counter. She also described significant psychological distress. I shall refer to the recording of the cause and symptoms of that distress later but note no reference was made to her back as being a contributing factor.

[30] She next saw Dr da Costa on 7 November and 13 December 2013. The notes recorded a number of issues. There is reference to her right shoulder pain and paraesthesia worsening despite physiotherapy. There is no reference to her thigh, lower back or flank pain.

[31] She did not see Dr da Costa again until 28 March, when Dr da Costa noted;

"Has noticed pain and paraesthesia of left second toe radiating up leg to thigh when stands at work."

[32] She advised Mrs Padua that this foot pain was "likely referral from back". On 3 April 2014, Dr da Costa recorded that "pain and paraesthesia has improved but is still present. On Panadol Osteo - x-rays reveal as expected L5/S1 narrowing and anterolisthesis".

[33] In my view it is clear from the GP and physiotherapy records that Mrs Padua complained of back pain, especially of pain in her left thigh, on and before 26 September 2013. Although Dr da Costa initially referred to the pain as being in her left flank, Dr da Costa did feel that this was probably due to a problem with her lower back, as recorded on 31 July. When on 28 March 2014 the pain and paraesthesia had extended to her toe Dr da Costa arranged an x-ray, which had revealed a L5/S1 abnormality, which the doctor described was "as expected".

[34] In my view it is clear that despite what Mrs Padua told Mr Vickers on 19 August 2014 and despite Dr da Costa's certificate of 12 August 2014 Mrs Padua had symptoms of pain related to her back and radiating into her left leg prior to 15 October 2013. Such symptoms were clearly reported on 26 September to Ms Dunning as shown in the pain diagram. Those reported on 31 October were the same problem. In examining the records it must also be remembered that Mrs Padua speaks only very limited English. Whilst Dr da Costa speaks Portuguese, Ms Dunning does not and this would have made the reporting of symptoms on 26 September difficult. On one occasion on 31 October 2013 Mrs Padua's husband was present. It is relevant that on that occasion Ms Dunning records a history of the onset of left leg pain two months earlier, related to prolonged standing of five minutes or more. On examination there was reduced flexion and straight leg raising. She was treated with lumbar sacral rotations and pelvic tilting. A worksite assessment was suggested.

[35] That consultation on 31 October very strongly supports the view that the pain diagram of 26 September was clearly related to a lumbar sacral injury. When giving evidence before me Ms Dunning said that she thought the presentation was very typical of a lumbar sacral spinal problem. I accept that was so. Dr da Costa was of a similar view.

[36] In such circumstances I find Mrs Padua suffered injury causing symptoms to develop especially in her left thigh from early 2013, not in 2014 as Mr Vickers was told by Mrs Padua. She was simply in error in so advising him. In my experience it is certainly not usual for persons to misstate when they first experience symptoms. Often, such misstatement can be seen to advance a plaintiff's case. In this case it is my view that the contemporaneous records support the plaintiff's claim that she in fact first consulted Dr da Costa for what became a significant lumbar sacral problem in July 2013.

[37] The question whether Mrs Padua saw her GP in July 2013 about the injury the subject of the Notice of Claim for Damages has been addressed by a significant number of specialists. The respondents called evidence from Dr Bruce McPhee, Dr John Tuffley and Dr Jefferson Webster. Mrs Padua called evidence from Dr Malcolm Wallace and Dr Greg Gillett. All of those are either orthopaedic surgeons or neurosurgeons. In addition, Mrs Padua called evidence from Dr Axel Estensen, a psychiatrist and from Mrs Padua's GP, Dr da Costa and the physiotherapist Judy Dunning.

[38] I have referred already to evidence concerning Mrs Padua attendance on her GP and on the physiotherapist. I was impressed by the evidence of Dr da Costa. She appeared to me to be a considered and careful witness who was not influenced in giving answers by the affect it might have on Mrs Padua's claim. For example, she was adamant when being questioned about psychiatric issues that there had been no complaint on 30 September 2013 of back pain as being a contributing factor to the development of her psychological symptomology. She indicated the reason she had in the medical certificate of 12 August 2014 said that she had first seen Mrs Padua for the back injury discussed in that certificate was that she was specifically talking about the development of paraesthesia in her left leg and toe as disclosed by Mrs Padua. She specifically said that no complaint of such a symptom had been made prior to then although I note she does say in the certificate that the cause of the "injury" was gradual aggravation of lower back pain with prolonged standing and lifting heavy weights. In my view this is illustrative of Dr da Costa's care when giving evidence and is demonstrative of the fact that she was a very independent witness, despite being the plaintiff's GP.

[39] In that circumstance it is in my view of great importance that as earlier as 29 July 2013 she wrote in her notes that she expected the pain in Mrs Padua's left flank was "likely from lower back". She said in her oral evidence that she felt Mrs Padua's symptoms in 2014, which everyone accepts are related to the condition of her spine, was a continuum of the symptoms from which she had sought treatment in July 2013. This is consistent with the similar opinion expressed by Ms Dunning, when she gave evidence.

[40] The advantage each of Dr da Costa and Ms Dunning had of course is that each first saw Mrs Padua prior to 15 October 2013 and continued to see her thereafter. None of the specialists who have provided reports had that very significant advantage.

[41] In his written report Dr Tuffley said Mrs Padua's symptoms reflect the natural history of her constitutional L5/S1 isthmic spondylolisthesis. He said the symptoms "do not specifically relate to her employment". He notes her presentation to Dr da Costa on 28 March 2014 and says that this was "the first mention in the general practitioner notes of lower back pain". He said in his report that the complaint of left flank pain made to Dr da Costa in July 2013 related predominantly to the left iliac fossa region. Dr da Costa in her evidence specifically disavowed that suggestion, indicating, quite clearly, that Mrs Padua had indicated pain traveling over her hip from the back to the front, and that it was not confined to the area of her iliac fossa.

[42] Dr Tuffley's view was that none of her lumbar spine impairment, which he assessed as amounting to a 11% whole person impairment related to her L5/S1 grade 1 isthmic spondylolisthesis, was related to her employment. He says in his report it was "highly likely, irrespective of life style and work choices, that she would at some time in her life develop symptoms relating to her constitutional L5/S1 isthmic spondylolisthesis."

[43] In his oral evidence Dr Tuffley accepted that work can cause symptoms from the condition from which she suffered to develop earlier but would otherwise be the case. He said however this was really an exacerbation rather than aggravation of the condition. By this, he explained, he meant there could be a flare up of symptoms which then settled rather than a permanent worsening of her condition.

[44] Dr Webster is a neurosurgeon. He operated on Mrs Padua in September 2015. His evidence is of importance because, when he operated for what he thought was an L5/S1 disc protrusion, he found there was in fact no protrusion. Instead he found there was a synovial cyst pinching on the L5 nerve and that the spondylolisthesis had pinched on the nerve root also.

[45] At the hearing both Dr Tuffley and Dr McPhee said that they doubted there was in fact a synovial cyst pinching the nerve. They both thought it was more likely protruding tissue associated with the spondylolisthesis, but not a cyst, which was pinching the nerve. In my view it is unnecessary to resolve that issue in order to dispose of the application. Both counsel agreed that it was unnecessary to do so. The important finding by Dr Webster was that there was no disc prolapse as he thought was the case when he recommended surgery. Dr Webster concluded that the;

"spondylolisthesis is the predominate reason why she gets leg pain over time... there may be times when Mrs Padua is at work and she does sort of stir things up but... work has probably paid a small part rather than the large part"

[46] Importantly, in a file note of a conference with counsel for WorkCover on 15 May 2016, it is recorded that Dr Webster said that at the time of her presentation on Dr da Costa in July 2013 it "might well be that Mrs Padua was presenting early on with things starting to degenerate".

[47] That observation is consistent with my findings.

[48] He, like Dr Tuffley, spoke of work causing only an exacerbation, or a self-resolving condition, rather than a permanent aggravation. Nevertheless he concedes unsafe work practices may have rendered her condition symptomatic and ultimately in oral evidence said that he felt "20-30% of her condition is attributed to the exacerbation".

[49] Dr McPhee gave evidence broadly similar to that of Dr Tuffley. He also said that if she did not have the retrolisthesis it was unlikely the work she did would have caused symptoms. Ultimately he said he did not believe work had contributed to the condition from which she now suffers and, further, that he did not think her presentation in July 2013 was related to her lumbar sacral spine.

[50] In my view the philosophy underpinning the evidence of each of Dr Tuffley, Dr Webster and Dr McPhee is their understanding that if she did not have the retrolisthesis it was unlikely the work she did would have caused symptoms. In my view their evidence was illustrative of the different approaches to causation in the law and in science or medicine. In March v E & MH Stramare Pty Ltd [1991] HCA 12; (1990) 171 CLR 506, Mason CJ said at p 509;

"It has often been said that the legal concept of causation differs from philosophical and scientific notions of causation. That is because "questions of cause and consequence are not the same for law as for philosophy and science", as Windeyer J. pointed out in National Insurance Co. of New Zealand Ltd. v. Espagne (7). In philosophy and science, the concept of causation has been developed in the context of explaining phenomena by reference to the relationship between conditions and occurrences. In law, on the other hand, problems of causation arise in the context of ascertaining or apportioning legal responsibility for a given occurrence. The law does not accept John Stuart Mill's definition of cause as the sum of the conditions which are jointly sufficient to produce it. Thus, at law, a person may be responsible for damage when his or her wrongful conduct is one of a number of conditions sufficient to produce that damage: see McLean v. Bell (8), per Lord Wright; Sherman v. Nymboida Collieries Pty. Ltd. (9), per Windeyer J."

[51] So to in Tabet v Gett [2010] HCA 12; [2010] 240 CLR 537, Kiefel J said at paragraphs 111-113;

"The common law requires proof, by the person seeking compensation, that the negligent act or omission caused the loss or injury constituting the damage. All that is necessary is that, according to the course of common experience, the more probable inference appearing from the evidence is that a defendant's negligence caused the injury or harm. "More probable" means no more than that, upon a balance of probabilities, such an inference might reasonably be considered to have some greater degree of likelihood; it does not require certainty (163).

The "but for" test is regarded as having an important role in the resolution of the issue of causation, although more as a negative criterion than as a comprehensive test (164). The resolution of the question of causation has been said (165) to involve the common sense idea of one matter being the cause of another. But it is also necessary to understand the purpose for making an inquiry about causation (166) and that may require value judgments and policy choices (167).

Once causation is proved to the general standard, the common law treats what is shown to have occurred as certain (168). The purpose of proof at law, unlike science or philosophy, is to apportion legal responsibility (169). That requires the courts, by a judgment, to "reduce to legal certainty questions to which no other conclusive answer can be given" (170). The result of this approach is that when loss or damage is proved to have been caused by a defendant's act or omission, a plaintiff recovers the entire loss (the "all or nothing" rule)."

[52] It is also important to understand that in this case it is necessary for her to prove only that the work Mrs Padua performed was a cause of her injuries and not necessarily the predominate cause (different considerations apply to the psychiatric injury post-October 2013). Whilst likely, even inevitable, development of symptoms from her congenital retrolisthesis may be relevant to the assessment of the damages, earlier presentation of symptoms that would otherwise have occurred, if due to an injury caused by her work, would entitle her to succeed on this application.

[53] The plaintiff's case was strongly supported by evidence of Dr Malcolm Wallace and Dr Greg Gillett. Dr Wallace's opinion was that while the retrolisthesis would have caused her to develop similar symptoms to those she now suffers from over time, that her work has nevertheless precipitated her current symptoms. It was his opinion that her visits to her GP in July 2013 was the start of a continuum of symptoms.

[54] Dr Gillett was of a similar view. His opinion however was that but for her work it was far from certain Mrs Padua would have developed symptoms from the retrolisthesis, given that she was 41 years of age at the time of the onset of her symptoms. He says a retrolisthesis certainly predisposes someone to injury, but that such symptoms usually emerge either as a teenager or by age 40. He says that if there are no such symptoms by age 40, there is a significant possibility that such symptoms will not ever emerge. Ultimately it is unnecessary for me to resolve the conflict between that evidence and that of other doctors in the case. The important part of Dr Gillett's evidence was that the presentation to her GP in July 2013 and subsequently to her physiotherapist, was due to the injury which also caused the symptoms that she had in 2014. He says the fact that the symptoms were not due to a disc protrusion, as identified by the treating surgeon at the time of his operation, but by some other impingement on her L5 nerve root, was not of importance or did not contradict his assessment.

[55] It is also important to refer to a particular passage in his oral evidence

[56] When giving evidence he was asked about the fact, as I find, that she made no complaint of pain and paraesthesia in her left second toe radiating up the leg to the thigh until 28 March 2014. I have referred already to that consultation with Dr da Costa. He was asked if symptoms developed only early in 2014, would that cause him to revisit his opinion "about the one continuum". Dr Gillett said the "key" was whether there was persistent symptomology.

[57] Counsel for the respondents submitted that the absence of complaint by Mrs Padua about her back during consultations with Dr da Costa on 7 November and 13 December 2013 and 7 February 2014 supports the view that there was no persisting symptomology over the period before October 2013 until the consultation of 28 March 2014.

[58] I do not accept that to be so. Mrs Padua gave evidence of continuing symptoms. She also gave evidence of her use of medication. The fact she was able to continue her work does not dissuade me of this view. She had, after all, continued to work throughout 2013 despite her pain which she told Dr da Costa on 19 July she had for five months. She also had treatment from Ms Dunning for a lumbar related condition on 31 October, 5 November, 3 and 19 December 2013.

[59] Whilst her symptoms may have been masked by her medication I accept Mrs Padua had ongoing symptoms which progressed to the extent of her complaint of 28 March 2014.

[60] In such circumstance it is my view, consistent with the observations I have made of the opinions of Dr da Costa and Ms Dunning that in July 2013 the plaintiff first consulted her GP in respect of the injury the subject of the claim for damages in the Notice of Claim for Damages of 29 May 2015.

[61] In such circumstances it is appropriate to make orders that the back injury suffered by Mrs Padua was sustained before and after 15 October 2013 and is an injury within the meaning of s 32 of the Act. I shall also order that the Act, as it stood on 19 July 2013 applies to Mrs Padua's claim for back strain.

[62] It is then necessary to consider whether the psychiatric injury was an injury within the meaning of the Act sustained before 15 October 2013 and, if it was not, whether, in respect of any psychiatric injury suffered thereafter, employment was the major significant factor causing it.

[63] There was in fact little evidence about the psychiatric claim. Initially, Mrs Padua gave no evidence about it. She was recalled and said that the history she had given to Dr Estensen was true. She also said that when she saw Dr da Costa on 30 September 2013 what was troubling her was missing her children, being upset "with everything that was happening", feeling pain and feeling impotent. In respect of that she said this was because she was unable to complete tasks she had previously done, felt unable to leave her home and was upset about everything. She did not describe what the source of the pain she suffered was.

[64] I note Dr da Costa's notes of the consultation of 30 September indicate that she was taking Celebrex and Mintec which was "working well" but that she was now also taking Panadol Osteo. In respect of her psychological symptoms dr da Costa records that she said she was very stressed and that this was related to her husband being unwell, her being far from family and wishing to go home but her husband not wanting to go back due to work. Dr da Costa questioned the plaintiff specifically about particular symptoms designed to ascertain whether or not she was in fact suffering a psychiatric injury. She said Mrs Padua affirmatively indicated a lack of energy, disturbed sleep pattern, poor motivation, indecisiveness, emotional inability, feelings of worthlessness but no suicidal ideation and a moderate level of anxiety. Dr da Costa noted her appearance and behaviour appeared normal but that her mood exhibited signs of anxiety. She was tearful and sad.

[65] It is in such circumstances, and in circumstances where Mrs Padua's physical pain obviously worsened significantly in 2014 resulting in surgery in September 2015, that Dr Estensen's report must be considered. He says that Mrs Padua had said that "as her pain had increased and her physical limitation escalated her mood has declined". He says that this was exacerbated when she was no longer able to work after November 2014. Dr Estensen describes that after she returned to Brazil on holidays and had seen her children there was some improvement in her mood. She told Dr Estensen that she was:

"Anxious about aspects of her future including: her pain and whether or not surgery that she had would be effective in the long term; her physical state as she aged; her ability to find employment and work; the financial consequences of unemployment; and whether or not bringing her children to Australia would be a wise decision in the context of her changed circumstances."

[66] It is clear, therefore, that issues surrounding her back injury and the effect that had on employment appeared to have been, at the time of his report, a significant factor in her perception of an impaired future, which appeared to underpin her psychiatric condition.

[67] She described to Dr Estensen a personal background which, in his opinion, revealed "little vulnerability for any psychiatric condition". That is consistent with the description she gave of her life up until she developed symptoms related to her back injuries. Dr Estensen diagnosed an adjustment disorder with mixed anxiety and depressed mood which he assessed as a 7% PIRS rating, amounting to a 10% whole person impairment. He said she "had a major depressive episode in late 2013 and early 2014 which had, following surgery, improved somewhat but that she continued to experience some depressed symptoms".

[68] It is clear, in my view, that Dr Estensen thought that her depressed condition was related to the physical condition of her back. Having regard to Dr da Costa's notes of her consultation on 30 September it seems clear to me that she had by then already developed a significant psychiatric decompensation.

[69] In circumstances where she made no mention to Dr da Costa of pain, and in particular of back pain as being a factor in the development of that condition; and where she was in any case able to continue her employment even if helped by medication, I cannot conclude that up to 15 October 2013 work played any part in the development of her psychiatric condition.

[70] Given that finding, and the fact that her depressive symptoms had already emerged before her back pain became so severe as to contribute to her psychological decompensation, I am unable to conclude that work was "the major significant contributing factor" to the psychological injury, even after 15 October 2013. In my view such a finding is supported not only by the fact that significant psychiatric symptoms had emerged by 30 September 2013, unrelated to her work, but also by the fact that on any view her back pain was significantly related to her underlying congenital condition, that she was also being treated for shoulder pain, and that she was clearly distressed about being separated from her children.

[71] Dr Estensen does relate that Mrs Padua said that prior to her injury her mood had been positive but that is contrary to the consultation of 30 September and my findings about that. I reject his opinion (pg 12 paragraph 3 of his report) that she experienced a decrease in her mood in the second half of 2013 "in the context of chronic pain and physical impairment".

[72] I note his statement that "the ongoing nature of her pain and physical limitation have continued to affect her mood" but his assertion that she has "little vulnerability for any psychiatric condition" is to be contrasted with the significant symptoms she reported to De da Costa on 30 September which, as I have found, did not have their genesis in her employment.

[73] In the circumstances I am unable to conclude that work was "the major significant contributing factor" to her psychological injury, as it emerged in 2014. No doubt her injury has been a significant contributing factor to the prolongation of her psychiatric disorder, but I am unable to conclude that it was the major significant contributing factor to her condition. In the circumstances I am unable to conclude that her psychiatric condition was an injury within the meaning of s 32 of the Act even after 29 October 2013.

[74] In the circumstances the orders of the Court are:

(a) The "back" "strain" as referred to in Mrs Padua's Notice of Claim for Damages sworn 29 May 2015 was sustained before and after 15 October 2013 and is an "injury" within the meaning of s 32 of the Workers Compensation and Rehabilitation Act 2003 ("the back strain"); and

(b) Due to the deeming effect of s 235A of the Workers Compensation and Rehabilitation Act 2003, the Workers Compensation and Rehabilitation Act 2003 as it stood on 19 July 2013 applies to her claim for the back strain.

2. The Notice of Assessment issued by WorkCover dated 16 October 2015 be set aside and WorkCover is directed to assess Mrs Padua's back strain conformably with s 179 of the Workers Compensation and Rehabilitation Act 2003.

4. WorkCover pay Mrs Padua's costs of and incidental to the application to be assessed, excluding those costs associated with the evidence of Dr Estensen.