CITATION: Tony Koch AND Q-COMP
(WC/2012/9) - Decision
<http://www.qirc.qld.gov.au>
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Workers' Compensation and Rehabilitation Act 2003 - s. 550 – appeal to commission
Tony Koch AND Q-COMP (WC/2012/9)
DEPUTY PRESIDENT SWAN
26 September 2013
DECISION
[1]
This application has been made by Mr Tony Koch (the Appellant) against the decision of the Review Unit of QCOMP. WorkCover had accepted part of the Appellant's claim of an injury on 29 July 2007. The WorkCover
decision accepted the injury described as "a psychological condition – a conversion disorder consistent with the
reports of Doctors Lawrence and Chalk - but rejected the claim in respect of an electric shock injury.
[2]
The Appellant sought to review the WorkCover decision. Q-COMP upheld WorkCover's decision and also
rejected the claim for an electric shock injury. Q-COMP found that the Appellant's symptoms were of a
psychological nature rather than physically based.
[3]
For a perspective of the nature of this claim, the "Agreed Points" between the parties highlight the issues at hand.
"Agreed Points
"1.
[4]
An event occurred as described by Mr Koch in evidence –
(a) He was working in the rain;
(b) He touched a fence wire with his right hand;
(c) He suffered an electric shock to some extent as a consequence of lightning electrifying the wire
directly or indirectly;
(d) He suffered a white mark on his hand; and
(e) He went 'black' for a period of time.
2.
The magnitude of the electric shock is in dispute.
3.
The Appellant submits he suffered an organic injury as a consequence of the lightning strike in addition to
the accepted somatoform/conversion injury.
4.
The Respondent submits that the accepted somatoform/conversion disorder excludes the acceptance of an
organic injury.".
Generally the psychiatric opinion appears to favour a diagnosis of somatoform/conversion disorder. This is one
of the disorders which falls under the bracket of "somatoform disorders" described in DSM-IV-TR and is
defined as follows:
"A.
B.
C.
D.
E.
One or more symptoms or deficits affecting voluntary motor or sensory function that suggest a
neurological or other general medical condition.
Psychological factors are judged to be associated with the symptom or deficit, progress initiation to
exacerbation of the symptom or deficit is preceded by conflicts or other stressors.
The symptom or deficit is not intentionally produced or framed (as in factitious disorder or malingering).
The symptom or deficit cannot after appropriate investigation be fully explained by a general medical
condition or by the direct effects of the substance or as is clinically sanctioned behaviour or experience.
The symptom or deficit causes clinically significant stress or impairment in social, occupational or other
important areas of functioning or warrants medical evaluation.".
The Claim
[5]
The focus of the claim is whether the Appellant suffered, in addition to the psychological injury, an injury of a
physical nature in the order of an electric shock injury.
[6]
This appeal is a hearing de novo. The Appellant bears the onus of proof on the balance of probabilities.
2
The Legislation
[7]
The Act relevantly provides:
"32
Meaning of Injury
(1)
…
(3)
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.
Injury includes the following (a)
a disease contracted in the course of employment, whether at or away from the place of
employment, if the employment is a significant contributing factor to the disease;
(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 (i)
a personal injury;
(ii)
a disease;
(iii) a medical condition if the condition becomes a personal injury or disease because of
the aggravation … ".
Witnesses
[8]
Witnesses for the Appellant were:
•
•
•
•
•
[9]
Mr Tony Koch (the Appellant)
Dr Don Todman (Neurologist)
Dr Michael Likely (Consultant Psychiatrist)
Dr Shelley Keane (PHD Clinical Neuropsychology)
Dr Chris Andrews (General Practitioner – PHD Electrical Engineering – Thesis "Aspects of Lightning
Injury").
Witnesses for Q-COMP were:
• Dr Allison Reid (Consultant Neurologist)
• Dr John Chalk (Consultant Psychiatrist)
• Dr Lucille Douglas (Psychologist – specialising in medico legal assessments and psychological testing).
[10]
Reports were tendered by the following:
•
•
•
•
•
•
Dr Basil James (Consultant Psychiatrist)
Dr Joseph Dunn (Consultant Psychiatrist)
Dr Joan Lawrence (Consultant Psychiatrist)
Dr Michael Likely (Consultant Psychiatrist)
Dr David Thoreau (Consultant Cardiologist)
Dr J. B McGucken (General Practitioner).
The Appellant's claim
[11]
As of 19 October 2005, the Appellant was working on a property outside of Charters Towers in North
Queensland. He was employed as a ringer/station hand on Spyglass Station.
[12]
The Appellant was working under the supervision of the station manager, Mr Matthew Payne.
[13]
About mid-afternoon on that day, Mr Payne directed the Appellant to assist him with some fencing repairs on the
property.
[14]
The repairs were conducted at about the time of a severe electrical storm which produced lightning and rain.
[15]
The Appellant was assisting in the fencing of the property when he grabbed one of the wires on the fence and
suffered an electric shock. The Appellant believed that the fence was struck at some point and the shock was
carried through the wire to him.
[16]
The Appellant does not believe he became unconscious and says that he had remained standing, however, he was
screaming in pain and holding his right arm.
3
[17]
After the event, the Appellant says that he gathered his thoughts and rode his motor bike to his residence in
Charters Towers which was some distance away.
[18]
On the following day, 20 October 2005, the Appellant did some work and then on 21 October 2005 he and his
wife travelled to Hamilton Island from Charters Towers, primarily by car, for a family wedding. They stayed 3
days and then returned to Charters Towers.
[19]
The Appellant first visited Dr McGucken on 25 October 2005. The Appellant's symptoms at that time included a
burn mark on his hand, some muscle soreness and pains and a general sense of malaise.
[20]
After the date of the incident, the Appellant states that his health had continued to deteriorate. On 26 December
2005, the Appellant said he had suffered some severe chest pains and he attended the Charters Towers Hospital.
[21]
The Appellant has not worked since that date.
[22]
Over the last eight years, the Appellant states that he has been trialled on various medications in respect of
muscle spasms, muscle pain, consequent depression, sleep issues etc.
The Medical Evidence
[23]
Q-COMP says that the psychological disorder suffered by the Appellant is a "somatoform/conversion disorder".
This was a view accepted by the Appellant and generally by Psychiatrists giving evidence in this matter and it is
not necessary to explore that discrete evidence any further.
[24]
Q-COMP views the problems confronting the Appellant as:
(a)
that a somatoform/conversion disorder is diagnosed in circumstances where there is no acceptable
physical or organic basis to explain the symptoms suffered by him; and
the diagnosis of the somatoform/conversion disorder, in Mr Koch's case, does not favour the acceptance
of a psychological or organic injury claimed by him" [Q-COMP submissions point 8].
(b)
[25]
In Q-COMP's view, in order to be successful, the Appellant must prove:
(a)
(b)
what is the organic injury suffered by him; and
the psychological injury, other than a somatoform/conversion disorder, that is said to coexist with the
organic injury.
[26]
Q-COMP's submission is that while the Appellant accepts the diagnosis of a somatoform/conversion disorder,
consideration must be given to psychiatric evidence and whether the Commission can accept that there is also an
allowable organic injury which can sit with that accepted disorder.
[27]
In response to that proposition, the following opinions were expressed by those medical practitioners who
responded to questions around that point.
[28]
Dr McGucken was the Appellant's General Practitioner. He was not called to give evidence.
Psychiatrists
Dr Likely
• Dr Likely had received copies of reports from all medical practitioners.
• Dr Likely had directly obtained a history from the Appellant.
• Dr Likely agreed that there had been a general consensus with regard to the incident and then opinions
seemed to diverge after that.
• Dr Likely did not seek to comment upon the physical symptoms described by the Appellant because he
believed that to be outside of his area of expertise.
• After considering the various opinions proffered from medical practitioners and Psychologists, Dr Likely
stated, unsurprisingly, that:
o "It must be pointed out at this stage that the expert witnesses who argue against any demonstrable
pathology appear to be those who provide reports for the defendant whilst those who endorse Mr Koch's
subjective complaints do so in reports prepared for the plaintiff.".
• Dr Likely was unable to reach an AXIS 1 DSM-IV-TR Diagnostic label. As such he did not believe that Mr
Koch required any further counselling or therapy.
4
Dr Chalk
• Dr Chalk had been provided with relevant medical opinions.
• The Appellant had ongoing "emotional difficulties, is angry, grumpy, has a hot burning pain, headaches and
chronic difficulties with his sleep".
• The Appellant also complained of ongoing muscular problems with pain, cramping, spasms and chest pain.
• The Appellant did not view himself as depressed.
• The Appellant was very angry with his former employer believing that he had been treated badly by him.
• Dr Chalk believed that the Appellant suffered from a conversion disorder. That disorder fell under the broad
heading of "somatoform disorders" as defined in DSM-IV.
• Dr Chalk stated that there was evidence that showed that the Appellant had some pre-existing vulnerability
"though it is very difficult to quantify this or to relate it to his current problems in anything but the broader
sense.".
• Dr Chalk did not believe that, on the basis of presentation, the Appellant was malingering.
[29]
There were a number of reports from other Psychiatrists who were not called to give evidence. Their reports
were before the Commission, but the weight of that material was limited to the extent that those medical
specialists were unable to be cross-examined by the Appellant. However, within that context, it is relevant to
state all of those Psychiatrists (Dr Basil James, Dr Joseph Dunn and Dr Joan Lawrence) agreed that the appellant
was suffering from some type of somatoform disorder. Dr Dunn, in agreeing with that proposition, also believed
that the Appellant's claim was valid and he should receive his payments.
Finding
[30]
The overall conclusion of the Psychiatrists was that the Appellant suffered some type of somatoform/conversion
disorder.
Neurologists
Dr Todman
• The Appellant had complained of muscle pains, fatigue and muscle spasms through his body. He had a
general sense of fatigue and problems with memory and concentration.
• On the balance of probabilities, Dr Todman stated that the range of symptoms exhibited by the Appellant
were related to after-effects of the electrical injury.
• Dr Todman, in agreement with Dr Andrews, stated that he had seen a number of patients who have exhibited
similar symptoms as muscle pain, fatigue and cognitive difficulties after an electrical injury.
• Overall, Dr Todman suggested that the Appellant's symptoms have an organic physical basis combined with
the psychological effects from the injury. He believed that the mix of physical and psychological is not
uncommon in the scenario of electrical injury.
• Specifically, Dr Todman stated "…there is a rare group of patients who have a constellation of symptoms
after electrical injuries that are similar to Mr Koch and those symptoms are hard to categorise in terms of a
specific neurological diagnosis and that it was difficult to categorise the physical symptoms described by Mr
Koch as they do not fit into a precise neurologic diagnosis." [T2-43].
• Dr Todman stated that whilst the delayed onset of the Appellant's symptoms displayed by Mr Koch were
consistent with electrical injuries, they were also consistent with conversion disorder or somatoform disorder
[Exhibit 5].
• Having said that, Dr Todman said, given the range of impairments, it was difficult to ascribe impairment
based on AMA 5 Guidelines.
• Initially Dr Todman was of the view that the categories of cognitive impairment of Class 1 from Table 13.6
and gait disorder from Table 13.15 are the most appropriate. The cognitive impairment is Class 1 from Table
13.6 and a ten percent whole person impairment which is the upper part of the range based on the level of
symptoms. The gait disorder is also Class 1 in which he has difficulties with grades, stairs and long distances
and this is a nine percent whole person impairment which is the upper part of the range based on the level of
symptoms.
Dr Alison Reid
• The Appellant described a similar background, as it related to the events surrounding the incident of October
2005, and associated activities undertaken by the Appellant beyond that date, to Dr Reid as he had with other
medical practitioners. Those points need not be restated.
• The Appellant had not volunteered any cognitive problems to Dr Reid and when asked if he suffered from
memory loss or poor concentration, this was denied.
5
• The Appellant stated that he does minimal exercise and is unable to walk more than 300 metres.
• The neurological examination undertaken by Dr Reid was described as "challenging" because it was
frequently punctuated by "bodily contortions, jerking of the limbs and complaints of agonizing muscle pain
and spasming".
• The Appellant has stated that he had become energised in a high voltage circuit, but he had not suggested that
he had been directly struck by lightning.
• Dr Reid stated that the basic assertion was that the Appellant had touched a live wire that was part of a high
voltage conduction system.
• Dr Reid states that "it is inconceivable that Mr Koch could have sustained a high voltage current electric
shock with no evidence of any physical injury. He had no burns, no cardiac arrhythmia, no impairment of
consciousness and no electrocution (i.e. death). This claim is fanciful and is not based on scientific
knowledge.".
• Dr Reid believed that it was impossible to calculate the extent of any shock caused by the event. Dr Reid
stated that the requirement for some objective evidence is entirely appropriate.
• Notwithstanding the views expressed by other Psychiatrists, Dr Reid believed that the Appellant was
'deliberately over-presenting' during examination. "During the physical examination he deliberately
exhibited bizarre abnormal illness behaviour. It was my impression that Mr Koch made a calculated
decision to adopt a sick role in order to obtain the benefits of a sick injured person.".
• Dr Reid also stated "This man has been sitting at home on income protection benefits for five years. During
this period he has fathered two children. He is walking down the path of litigation with an anticipated pot of
gold at the end. I see no prospects of any improvement in his overall condition until his common law claim
has been concluded.".
• Dr Reid did not believe that the Appellant had sustained an electrical injury and there is no evidence that he
is suffering from any organic condition.
Finding
[31]
Dr Reid's perception of the Appellant's motivation for pursuing his claim was blunt (i.e. that the Appellant was a
essentially a malingerer).
[32]
While most specialists did not express a view around the point of motivation, it is noted that there was some
evidence around the unusual nature of the claim. That can be seen from the following mentions:
• Dr Todman agreed that the Appellant’s presentation was unusual.
• Dr Likely agreed that the presentation of symptoms not consistent with a physical examination could be
conscious or unconscious and the fact that the Appellant was receiving income protection insurance could
have a bearing which could not be definitely ruled out.
• Dr Keane was unable to discuss with any surety what physical contributions there was from the event.
• Dr Todman is the only medical specialist who has given evidence supportive of the claim.
Dr Thoreau
[33]
Dr Thoreau stated after consulting with the Appellant on 12 October 2009 that "from a cardiac point of view he
has not major abnormalities…there is no evidence of any myocardial injury." [Exhibit 8].
Psychologists
Dr Keane and Dr Douglas
• Dr Keane saw the Appellant on 15 February 2010.
• Formal tests were undertaken by Dr Keane.
• Dr Keane advised that the pattern of physical symptoms reported by the Appellant was consistent with those
seen in the context of lightning strike. She suggested that the pattern of cognitive weaknesses could be the
result of an indirect lightning strike or a combination of an acquired brain injury, pain, medication and
emotional functioning.
• However, the combination of these factors would be difficult to determine, but some of the executive
functioning results were more consistent with an acquired brain injury, rather than emotional distress, pain
and medication.
• In a report, dated 14 December 2010, Dr Douglas said that, after testing, there was little to suggest that the
Appellant had suffered any underlying cerebral pathology as a result of the lightning strike.
• Ultimately, Dr Douglas stated that given the Appellant’s history, she thought it was more suggestive of an
underlying psychiatric condition rather than an acquired brain injury.
• Dr Keane further contended that “given the history of the injury, together with research of the effects of
lightning injury, the probability that lightning strike is contributing to the weaknesses noted in cognitive
6
functioning cannot be discounted. That is, his weaknesses in cognitive functioning cannot be fully explained
by pain, medication, or emotional distress.”
• She further stated that the relative contribution of these factors is difficult to determine.
[34]
Similar tests to those conducted by Dr Keane were performed by Dr Douglas. In her view, the Appellant’s
pathology relied heavily upon some variability in scores between the testing performed by her and Dr Keane.
[35]
Dr Douglas stated that:
“I can note that my analysis for his performance on cognitive testing over time would not support that this
gentleman’s cognitive complaints (poor concentration and poor memory) are consistent with any underlying
organic pathology … given that there is little to suggest that this individual has suffered any underlying cerebral
pathology, as a result of a lightning strike, I am unable to conclude that this relative weakness in visual attention
could be attributable to this event.”.
Finding
[36]
The testing undertaken by both psychologists produced many similarities.
[37]
Dr Douglas’ testing of the Applicant showed his visual working memory as an identifiable deficit. However,
while not suggesting that there “isn’t an organic contributor” to the deficit, it did not “sit comfortably” in her
view with the literature on lightning strike. Further she pointed out that while the Appellant performed badly in
that area, she could not rule out a pathological finding, but did not know what may have caused it.
[38]
Dr Keane was unable to say one way or the other whether the Appellant’s test results could be explained by
brain injury [T2-27]. On the balance of probabilities, Dr Keane said that she would have to sit on the fence [T-237].
[39]
In considering the evidence of both Psychologists, it is reasonable to find that the weight of their evidence does
not support a finding that the Appellant has suffered an organic brain injury because of the lightning strike.
[40]
This view is bolstered by the comments of Hall, P. in WorkCover Queensland v Cotmore [1999] QIC 56, where
he stated that:
"The issue was not whether Dr Downes and the other practitioners could positively assert that the pain was not
attributable to the fall of 16 February 1998, compare Fernandez v. Tubemakers of Australia Ltd [1975] 2
NSWLR 190 at 200, per Mahoney, J. A. The question was whether on the basis of what they could say about the
fall and his pain, the Industrial Magistrate might affirmatively find on the balance of probabilities that the fall
was and continued to be the cause of the pain."
Dr Andrews
[41]
It is relevant under this heading to firstly consider evidence given by Dr Reid from Q-COMP's perspective. QCOMP's view was that “no one has been able to express what the electrical, physical injury was, which is
entirely consistent with the evidence before the Commission, including Dr Andrews, the expert whose evidence
does not feature at all in the Appellant’s submissions, that it was apparently impossible to calculate the extent of
any shock caused by the event”.
Observation
[42]
The Appellant has not relied upon the evidence of Dr Andrews in its final submissions., but the similar
conclusion drawn by both Dr Andrews and Dr Reid has been considered.
Conclusion
[43]
With the exception of Dr Todman’s evidence, the weight of evidence does not support the Appellant’s claim.
[44]
It is found that:
(a) Mr Koch's claim has been accepted in the nature of a psychiatric/psychological injury secondary to the
lightning strike; and
(b) Mr Koch does not have an organic injury and some other non-defined psychological injury, in addition to that
accepted injury.
[45]
The Appellant has not discharged the burden of proof and the appropriate orders to be made are:
7
(a) the appeal is dismissed
(b) the decision of Q-Comp Review Unit dated 6 December 2011 is confirmed
(c) The Appellant pay Q-Comp costs to be agreed or failing agreement, to be the subject of further application to
the Court.
[46]
I order accordingly,
D.A. SWAN, Deputy President.
Hearing Details:
2013 29 & 30 April (Hearing)
1 April (Hearing)
19 June (Appellant Submissions)
15 July (Respondents Submissions)
26 July (Submissions in Reply)
Released: 26 September 2013
Appearances:
Mr J. Greggery of Counsel instructed by Connolly Suthers
Lawyers for the Appellant.
Mr S. Gray of Counsel instructed by Q-COMP.