Cockburn v Workers' Compensation Regulator [2018] QIRC 60

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Cockburn v Workers' Compensation Regulator [2018] QIRC 060 PARTIES: Cockburn, John Charles (Appellant) v Workers' Compensation Regulator (Respondent) CASE NO: WC/2017/169 PROCEEDING: Appeal against decision of the Workers' Compensation Regulator DELIVERED ON: 15 May 2018 HEARING DATES: 22 February 2018 (Hearing) 21 March 2018 (Regulator's Submissions) 3 April 2018 (Appellant's Submissions) HEARD AT: Cairns (22 February 2018) MEMBER: Deputy President Swan ORDERS 1. The Appeal is granted and the Review Decision of the Workers' Compensation Regulator dated 1 September 2017, is set aside. 2. The Workers' Compensation Regulator is to pay the Appellant's costs of, and incidental to the Appeal. CATCHWORDS: WORKERS' COMPENSATION - APPEAL AGAINST DECISION - decision of Workers' Compensation Regulator - Appellant incurred a physical injury - Pre-existing degenerative condition in lower back - Appellant involved in work-related incident - Incident caused immediate tearing sensation in lower back with immediate onset of significant lower back pain and right buttock pain - Operation performed identifying large extruded right L4/5 disc prolapse - Determined that the injury was caused by the acute event occurring at the workplace - Appeal granted. -- 1 of 11 -- 2 LEGISLATION: Workers' Compensation and Rehabilitation Act 2003 APPEARANCES: Mr John Charles Cockburn, the Appellant, conducting his own case. Mr N. Jarro of Counsel, directly instructed by Ms C. Godfrey of the Workers' Compensation Regulator. Decision [1] Mr John Charles Cockburn (the Appellant) appeals the Review Decision of the Workers' Compensation Regulator (the Regulator) of 1 September 2017, to terminate his entitlement to compensation. [2] This decision was based upon the opinion of an Independent Orthopaedic Surgeon, Dr David Shepherd, who was of the opinion that "… it was reasonable to allow 6 to 12 weeks of treatment or a suitable duties program". [3] The Appellant submits that his compensation claim was closed without due consideration of the written report of his treating Orthopaedic Surgeon, Dr Christopher Morrey. WITNESSES [4] Witnesses for the Appellant were:  Mr John Charles Cockburn, the Appellant; and  Dr Christopher Morrey, Orthopaedic Surgeon. [5] Witness for the Regulator:  Dr David Shepherd, Orthopaedic Surgeon. Background information [6] The Appellant's Application for Compensation to WorkCover Queensland was dated 3 April 2017 and related to an injury to his lower back sustained on 29 March 2017. At that time, the Appellant had been physically restraining a patient during his employment as a Fire Safety and Security Officer at Cairns and Hinterland Hospital and Health Service District. [7] WorkCover Queensland accepted the Appellant's claim for "the lower back injury from restraining patient" and determined that the applicable benefits would be paid from 29 March 2017. The claim had been accepted as a work-related aggravation of a pre existing condition. [8] On 17 July 2017, the Appellant was notified by WorkCover Queensland that his payment of benefits would cease on 14 July 2017 pursuant to ss 144A and 144B of the -- 2 of 11 -- 3 Workers' Compensation and Rehabilitation Act 2003 (the Act). Dr David Shepherd, Orthopaedic Surgeon, had provided a report dated 22 May 2017. He had stated that the Appellant's incapacity for work should end 12 weeks post-injury, at which point any ongoing symptoms would relate to the Appellant's underlying degenerative condition. [9] The Regulator's review decision of 1 September 2017, confirmed the decision of WorkCover Queensland. It is against that decision that this Appeal is made. The Legislation [10] Section 144A of the Act states that a worker's entitlement to weekly payments of compensation stops when the incapacity, because of the work-related injury stops. Section 144B provides that a worker's entitlement to payment of medical treatment, hospitalisation and expenses stops when the worker's entitlement to weekly payment stops, and the injury is not likely to improve with further medical treatment or hospitalisation so that medical treatment is no longer required to manage the injury. [11] Section 108(2) of the Act states that a worker is entitled to compensation for the injury only to the extent of the effects of the aggravation. [12] That the Appellant is a "worker" for the purposes of the Act, is not contested. [13] This Appeal was made pursuant to s 549 of the Act and filed in the Industrial Registry of the Queensland Industrial Relations Commission on 11 September 2017. [14] The Appeal is by way of a hearing de novo and the Appellant bears the onus of proof on the balance of probabilities. Medical Evidence Dr Christopher Morrey, Orthopaedic Surgeon [15] Dr Morrey, the Appellant's treating Orthopaedic Surgeon, provided a medical report on 13 July 2017 as requested by WorkCover Queensland. [16] Dr Morrey reported reviewing the Appellant on 5 July 2017 at the request of the Appellant's local medical practitioner, Dr Chris Haug (not called to give evidence in these proceedings). Dr Morrey had treated the Appellant in 2009 for a lower back injury and also in 2012 concerning some shoulder and neck discomfort as well as during 2017. [17] Dr Morrey viewed the Appellant's injury of 29 March 2017 as a work-related injury although said that at the time there was a discussion as to whether the Appellant had a pre-existing degenerative change in his back as a result of his service in the armed forces. The Appellant advised Dr Morrey that he had continued to work for the ensuing twenty years even though he had experienced intermittent low back and right leg pain. During that period the Appellant had been treated by various Physiotherapists and Chiropractors. [18] The Appellant reported to Dr Morrey that he had been working as a Security Guard at the Cairns Hospital in March 2017. His role involved him protecting staff and patients -- 3 of 11 -- 4 from violent and uncooperative patients. He detailed the nature of the incident in which he was involved in on 29 March 2017. [19] The Appellant reported the incident wherein he and some nursing staff were attempting to restrain a patient who was being moved into a secluded area. The patient had clasped his legs around the Appellant's leg in a doorway and in order to extricate himself, the Appellant had to lift his leg up and rotate his body and twist in order to get the patient inside the room. At that point, the Appellant said he suffered an immediate tearing sensation to his low back with an immediate onset of significant low back pain and right buttock pain. [20] Dr Morrey recorded that: "Over the next 12 hours he [the Appellant] reported that the pain radiated down his leg and distribution of the right L5 dermatone, that being on the lateral aspect of his calf and the dorsum of his right foot".1 [21] Dr Morrey was aware that the Appellant had seen Dr Shepherd for an Independent Medical Examination (on 22 May 2017). He noted that Dr Shepherd had commented upon the Appellant's pre-existing degenerative change and that his condition should settle within 12 weeks. [22] In considering Dr Shepherd's opinion, Dr Morrey reported that an MRI scan which had been performed in May 2017 had shown that the Appellant had significant pre-existing radiological degeneration of his lumbar spine and that it was particularly advanced at the level of L5/S1 and L4/5 discs. On the right hand side at the L4/5 there was a small disc prolapse which was compressing the right L5 nerve root, "just as it takes off from the axilla of the dural sac". [23] Dr Morrey's view, when reviewing that May 2017 MRI scan, was that when it was compared to the MRI scans from 2016 and January 2017, the: "… pre-existing degenerative changes exists however the right L5 nerve root certainly does not appear to be as badly compressed as it is now."2 [24] I have accepted that statement as meaning that in the May 2017 MRI, the L5 nerve root compression was identified as "badly compressed" within the context of what may have been viewed in the MRIs of 2016 or January 2017. Dr Morrey noted that Dr Shepherd had made no mention of whether the situation had changed radiologically over that period of time. [25] Dr Morrey's view was that whilst the Appellant had a history of chronic low back pain and intermittent right L5 radiculitis, the Appellant's more recent injury in March 2017 showed that he had suffered an exacerbation of a pre-existing condition and this had not responded to conservative management which included ongoing analgesia and regular physiotherapy and hydrotherapy. 1 Exhibit 3 2 Exhibit 3, page 2 -- 4 of 11 -- 5 [26] While the Appellant had an acute response to CT guided right L5 nerve root injections from pain specialist Dr Timmins (not called to give evidence), he experienced no longevity from this. Dr Morrey believed that the Appellant may have become a candidate for a right sided L4/5 discectomy and rhizolysis of that L5 nerve root. [27] In his view, the Appellant's current capacity to return to the workplace was "nil". He said that the Appellant was not capable of performing in a suitable duties program at this point. He believed that the Appellant's work-related condition was not yet stable and stationary. He said it was difficult to place a timeframe upon this type of injury but in his experience patients did not get better within 12 weeks. [28] It was Dr Morrey's opinion that the Appellant's ongoing symptoms were related to his underlying pre-existing condition but that he had sustained an acute exacerbation that had failed to settle, which was caused by the work-related incident on 29 March 2017. The Appellant's Operation on 19 September 2017 [29] As at 19 September 2017, Dr Morrey advised that the Appellant had undergone an L4/5 discectomy procedure and that this procedure was performed for the purpose of relieving pressure on a nerve root that was being compressed by a bulging disc. The Appellant was to see Dr Morrey again to review his situation. [30] In his Operation Record of 19 September 2017, Dr Morrey recorded his findings as follows: "Severely compressed right L5 nerve root in lateral recess secondary to large right L4/5 facet joint, in particular superior articular process of L5, ligamentation flavum hypertrophy and large extruded right L4/5 disc prolapse."3 [31] Dr Morrey noted on 4 October 2017, that: "… two weeks post his discectomy and rhizolysis of his right L5 nerve root at the level of L4/5. He was mobilizing well. He is to reduce his painkillers down and he was to continue with his physiotherapy".4 [32] Dr Morrey again reviewed the Appellant on 20 November 2017 and reported that the Appellant showed that he was not experiencing any pain in his leg. He stated, in evidence, that: "… he had no radicular pain in his leg but he had ongoing discomfort in his facet joints, then referred to these facet joint injections. Now, the facet joints was pre-existing degenerative pain. It wasn't associated with his radicular pain which is pain in the distribution of the nerve root, and each nerve root has a particular area of the body that it will refer pain to, and in his case, his pain that he described to me at the time of his initial consultation was down his leg into the lateral side which is the outside of the calf and onto the dorsum or the top part of the right foot, and that's consistent with an L5 dermatomal distribution. That pain had subsequently resolved post his surgery."5 3 Exhibit 4 4 T1-20 5 T1-20 -- 5 of 11 -- 6 [33] The Appellant’s evidence concerning his operation of 19 September 2017, was that: "Well, basically, since the procedure, I’ve had very little symptoms of pain radiating down the right leg, very little pain - if any - in the lower back."6 [34] Dr Morrey further added that "it would be envisaged that if he made a complete recovery from his surgery that he should be able to return to his previous levels of occupation". However, he was not able to estimate how long that recovery process might take. [35] Dr Morrey's opinion was that each patient is different in terms of recovery and noted that recovery post-surgery of some 6 to 12 weeks was a timeframe he had not observed in his experience. He said that some people can take between 6 to 12 months before they can return to manual work, adding that the more manual the job undertaken by a patient, the longer the return to work would be. He believed that a conservative estimate would be 6 to 12 months before a return to work but there remained the possibility that the patient continued to be incapacitated or had an inability to return to that former level of occupation. [36] In Cross-Examination, he affirmed that the Appellant's underlying pre-existing condition of low back pain remained, but that his disc protrusion which was producing his leg pain was as a result of an acute exacerbation. He reiterated that: "… the thing that he did have which isn't consistent with pre-existing degenerative change is that he had a large extruded right L4/5 disc prolapse. This means the disc had actually ruptured out of the disc space, through the annular ligament, which is the ligament which contains the disc, and was actually sitting in that space compressing the nerve."7 [37] Dr Morrey agreed in Cross-Examination that while the disc prolapse was increasing up until January 2017, there was no report that the disc prolapse had actually extruded at that point. However that was the finding made from the surgery of September 2017. Dr David Shepherd, Orthopaedic Surgeon [38] Dr Shepherd saw the Appellant on 22 May 2017, having not seen him previously. [39] The history provided to Dr Shepherd was similar to that provided to Dr Morrey. The Appellant (prior to the incident of 29 March 2017), said he had been mostly pain free for about three years. Dr Shepherd viewed an MRI report from January 2017 and a report of a CT guided epidural injection which had been performed on the Appellant on 16 March 2017. From discussing these reports with the Appellant, he said that the Appellant agreed that he had experienced pain during the preceding period of time prior to his injury. [40] The Appellant (concerning the work-related incident of 29 March 2017), had reported that he experienced pain across his lower back and right buttock, with the pain in his right buttock being the most severe. He also reported pain radiating down his right leg, particularly into his thigh and at times down into his foot. 6 T1-6 7 T1-23 -- 6 of 11 -- 7 [41] For around one month after that incident the Appellant was absent from work, but returned to work on a suitable duties program on 8 May 2017. The Appellant reported having pain during the shifts he had worked at that time and, having had an epidural injection on 10 May 2017, he returned to work that week. [42] The Appellant advised that he was contemplating working five hour shifts, four days per week at that time. He commenced that by working only on the Monday and Tuesday, but ceased work because of his pain levels. [43] The Appellant said he had suffered pain in the six weeks after the incident and sustained severe pain after working his shifts. Dr Shepherd noted that whilst on his suitable duties program, the Appellant was mostly sitting at a computer scanning documents. [44] At the time of his appointment with Dr Shepherd on 22 May 2017, the Appellant provided a CT scan which had been taken on 4 May 2017. This scan showed that at the L5/S1 level, there was a severe loss of disc height and signal. The L4/5 level disc signal was reduced but the height was preserved. Dr Shepherd said that the discs were in reasonable condition. He noted some osteoarthritic changes in the L5/S1 facet joints but there was sufficient space for the nerve roots. Dr Shepherd said the Radiologist's Report from the MRI scan on 12 January 2017 showed essentially the same changes to what he had observed from the scan from 4 May 2017. [45] Dr Shepherd reported that the Appellant suffers from mechanical low pain with quite severe degenerative change at the L4/5 level. [46] Dr Shepherd noted that the Appellant had been significantly symptomatic in the weeks prior to his reported incident in March 2017. He said that while he accepted that the Appellant had incurred a work-related exacerbation of his underlying condition, he stated that the underlying condition was fairly severe prior to the work-related incident. [47] Dr Shepherd believed that it was reasonable to allow a 6 to 12 week treatment or a suitable duties program. He stated that while the Appellant had a fairly severe underlying condition, his work-related exacerbation was fairly minor. [48] Dr Shepherd's opinion was that the Appellant should continue to see a physiotherapist for core strengthening programs. He stated that even with the best treatment, the Appellant is likely to be symptomatic in the long term. Further, Dr Shepherd viewed the Appellant's ability to return to work under the suitable work program as very limited. [49] Dr Shepherd's overall view was that the Appellant's work-related injury would have ended by 12 weeks and he regarded his ongoing symptoms as a reflection of his underlying condition. [50] In reviewing Dr Morrey's report, Dr Shepherd commented: "… on clinical grounds, his presentation was more consistent with mechanical low back pain than with pure compression of his L5 nerve root. I can see the fragment of disc that Dr Morrey is talking about, I guess there may be some element of nerve root compression in John's presentation but I think the majority -- 7 of 11 -- 8 of his symptoms are coming from mechanical low back pain and I am pessimistic that he will get a good result from surgery…"8 The Appellant's Operation of 19 September 2017 [51] Dr Shepherd initially stated that he had no independent verification of what was actually found by Dr Morrey in the operation on that date but ultimately agreed that the Operation Report set out the Findings. He said, however, that he had seen nothing in the May 2017 imaging to suggest that would be the outcome. [52] A question from the Bench was posed to Dr Shepherd as follows: "Deputy President: But the accuracy of an MRI versus the accuracy of what one sees in the course of surgery, how do you compare the accuracy of those two matters? I mean is an MRI - is it faultless or is the surgery the only real way to see what has actually occurred? Dr Shepherd: In some ways they're different views of the same thing. It's a little bit like the blind man describing the elephant. You know, it - sort of each one [indistinct] It's different ways of looking at the same thing. I don't know that one is more reliable than the other. And - you know, I don't - again I don't know whether there's been any more imaging done. But you know, it - essentially the MRI is very good at picking up large disc prolapses."9 [53] In Re-Examination, Dr Shepherd amended his earlier statement that he had seen nothing in the May 2017 MRI, by stating: "If you like, what I see on the MRI of May 2017 is a small prominence. And it’s - it's a bit of a bump, you know. If I - we have a picture of the disc. I guess the question is - is could there be a big fragment of disc, you know, hiding in there that we can’t see. And I think the answer to that is no. So I think - you know, I have every faith in the MRI scans, and that there was no big fragment of disc visible on the scan - and in fact Chris Morrey's opinion in his report in July agrees with that."10 [54] Dr Shepherd suggested that Dr Morrey had contradicted himself when he had stated "It is my opinion that his ongoing symptoms are related to his underlying pre-existing condition", but follows with "but he has suffered an acute exacerbation which has failed to settle."11 Conclusion [55] The Regulator's submissions concentrate primarily upon the differing views between Dr Shepherd and Dr Morrey and the extent of the Appellant's accepted work-related aggravation in the context of the Appellant’s pre-existing degeneration. 8 Exhibit 7 9 T1-36 10 T1-37 11 T1-38 -- 8 of 11 -- 9 [56] Dr Shepherd's view was that the effects of the aggravation to the underlying degeneration would have lasted no more than 12 weeks. Dr Morrey's view is markedly different. [57] Dr Shepherd undertook an Independent Medical Examination of the Appellant in May 2017, while Dr Morrey had previously treated the Appellant and had operated on the Appellant in September 2017. [58] The Regulator, it its submissions, referred to a "crucial matter" arising from Dr Morrey's oral evidence with regard to the MRI scan of the lumbar spine of 4 May 2017 and the findings of the 19 September 2017 operation undertaken by Dr Morrey. The Regulator says that Dr Morrey had not mentioned any "compression of the right L5 nerve in his report dated 13 July 2017 in which he referred to the 4 May 2017 MRI. [59] Against that background, the following questions were posed by the Regulator in its supplementary submissions: "5. How could the 'large extruded right L4/5 disc prolapse' occur when in May 2017 at the time Dr Shepherd examined the Appellant, considered the May 2017 MRI scan and formed the view that, on balance, the Appellant did not have compression of the L5 nerve root? 6. Further how could the 'large extruded L4/5 disc prolapse' occur when in Dr Morrey's July 2017 report (exhibit 3) he made reference to the May 2017 MRI scan as 'not showing compression of the right L5 nerve'." [60] Primarily Dr Shepherd's opinion was that prior to the incident which occurred on 29 March 2017, the Appellant was symptomatic in that he had sustained a workplace exacerbation of his underlying condition which had been fairly severe prior to the work-related exacerbation. [61] Dr Shepherd, when responding to a question from the Appellant concerning the matter of disc bulge and pressure on the nerve, responded that: "So I considered whether I thought you had pressure on the nerve or not. Look, I thought it was kind of borderline. Maybe there was a little bit. But the great majority of your pain was mechanical back pain. So I felt that your problem was mainly mechanical back pain rather than nerve root compression."12 [62] In response to questions posed by the Regulator in its final submissions (detailed at paragraph [59] above), what Dr Morrey stated in his report of 13 July 2017 is as follows: "5. The diagnosis of his current work-related condition is that he has an acute L5 radiculitis. 6. His work-related condition is certainly an aggravation of the pre-existing condition…"13 12 T1-33 13 Exhibit 3, page 3 -- 9 of 11 -- 10 [63] It is relevant to restate Dr Morrey's comments concerning this MRI which is found in his report of 13 July 2017. In that report, Dr Morrey stated: "Review of an MRI scan performed in May of this year showed that he had significant pre-existing radiological degeneration of his lumbar spine. This was particularly advanced at the level of L5/S1 and L4/5 discs. On the right hand side of L4/5 there was a small disc prolapse which was compressing the right L5 nerve root just as it takes off from the axilla of the dural sac… When you review his previous MRI scans from January 2017 and 2016 the pre-existing degenerative change exists however the right L5 nerve root certainly does not appear to be as badly compressed as it is now. I notice there is no mention of that in Dr Shepherd's Report."14 (Commission Emphasis) [64] In response to questions put to him by the Regulator concerning the previous MRI scans and comments made by Queensland X-Rays, in this case the MRI of January 2017, Dr Morrey responded: "… the document is a report from the Radiologist. So that's the Radiologist's interpretation of the scans but I'm not going to - I don't base my surgical decision making just based purely on a radiology report. So my comment that's made in the - although it's difficult to determine quantitatively but the latest scans that he had certainly showed that the disc prolapse - and that's what I mentioned here. When you review his previous MRI scans from January 2017 and 2016 the pre-existing changes exist --- Yes? --- However, from the previous scan of 2016 the right L5 nerve root certainly does not appear to be as badly as compressed as it is now and I made mention that Dr Shepherd in his report had made no comment in regards to whether the situation had changed radiologically over that period of time."15 [65] Counsel for the Regulator questioned Dr Morrey as to where there had been any reference to the disc prolapse in his report of 13 July 2017. Dr Morrey referred to points [6] and [8] of his report which state as follows: "[6] His work-related condition certainly is an aggravation of the pre-existing condition. He has had a long history of ongoing low back pain with intermittent right L5 radiculitis. He has pre-existing change in his lumbar spine at L4/5 and L5.S1 and associated lateral recess stenosis. However, his MRI scan which certainly does not show compression of the right L5 nerve as it is on his most recent scan of May 2017. … [8] He has been sent for a further CT guided right L5 nerve root injection. If this fails to settle his pain down or only gives him very short term relief he may become a candidate for surgical intervention in light of an isolated L4/5 discectomy and rhizolysis of the L5 nerve root."16 14 Exhibit 3, page 2 15 T1-24, T1-25 16 Exhibit 3, page 3 -- 10 of 11 -- 11 [66] When questioned further by the Regulator as to the Appellant's pre-existing condition prior to the work-related incident of 29 March 2017, Dr Morrey stated: "The thing that he did have which isn't consistent with the pre-existing degenerative change is that he had a large extruded right L4/5 disc prolapse. That means the disc had actually ruptured out of the disc space, through the annular ligament, which is the ligament which contains the disc, and was actually sitting in that space compressing the nerve. The issue arises here is that he doesn't have any - if he hadn't had pre-existing degenerative change, perhaps, his symptoms may not have been as severe if there was more room for the nerve root to move around… But he had an acute event. The extruded disc prolapse is not a chronic event… that's an acute …episode."17 [67] From the evidence before me, I have found that Dr Morrey's evidence overall and specifically the results of the operation undertaken by him on 19 September 2017 are, on the balance of probabilities, more than sufficient to uphold the Appeal. [68] Dr Shepherd viewed the exacerbation of his injury at work on 29 March 2017 as "fairly minor" but that his underlying condition had been "fairly severe"18. [69] Dr Morrey was the Appellant's treating Orthopaedic Surgeon. The opinions of Dr Morrey have already been canvassed in this Decision. [70] There appeared to be some reluctance on Dr Shepherd's part to accept the findings of the operation undertaken by Dr Morrey. It is accepted that the operation occurred as described by Dr Morrey and furthermore, added to that is the fact that the Appellant gave direct evidence concerning the operation of 19 September 2017 and how he felt after the operation. I have no reason to doubt the evidence given by the Appellant and Dr Morrey. [71] It was Dr Morrey's opinion that the Appellant's ongoing symptoms were related to his underlying pre-existing condition but that he had sustained an acute exacerbation which had failed to settle which was the cause of his work-related injury sustained on 29 March 2017. [72] I formed the view that the Appellant was a truthful and accurate witness and I have preferred the evidence of Dr Morrey over that of Dr Shepherd. [73] The Appeal is granted and the Review Decision of the Workers' Compensation Regulator dated 1 September 2017, is set aside. [74] The Regulator is to pay the Appellant's costs of, and incidental to the Appeal. [75] Order accordingly. 17 T1-23, T1-24 18 Exhibit 6 -- 11 of 11 --