Ebsworth v Workers' Compensation Regulator [2017] QIRC 8

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Ebsworth v Workers' Compensation Regulator [2017] QIRC 8 PARTIES: Paul Ebsworth (Appellant) v Workers' Compensation Regulator (Respondent) CASE NO: WC/2016/93 PROCEEDING: Appeal against a decision of the Workers' Compensation Regulator DELIVERED ON: 20 February 2017 HEARING DATES: 12, 13, 14 December 2016 HEARD AT: Brisbane MEMBER: Industrial Commissioner Black ORDERS: 1. 1. The Appeal is allowed; 2. 2. The decision of the regulator dated 10 May 2016 is set aside; 3. 3. Costs are reserved. CATCHWORDS: WORKERS' COMPENSATION - APPEAL AGAINST DECISION – Cessation of compensation and benefits – whether incapacity for work had ended when weekly payments stopped - whether the requirement for medical treatment had ended when benefits ceased. CASES: Workers' Compensation and Rehabilitation Act 2003, s 32(1), s 144A, s 144B, s 550; APPEARANCES: Mr C Newton, Counsel, instructed by Hayes Gabriel Solicitors, for the Appellant. Mr P O'Neill, Counsel, instructed by the Workers' Compensation Regulator, the Respondent. -- 1 of 12 -- 2 Decision Introduction [1] Mr Paul Ebsworth ("the appellant") appeals a decision of the Workers' Compensation Regulator ("the regulator") in which the regulator confirmed an earlier decision of Glencore Queensland Limited (the self-insurer) to cease weekly payments and benefits arising from an accepted injury. [2] The appellant had been employed by Clermont Coal Pty Ltd since 1 February 2014 in the capacity of dozer operator. The appellant sustained a back injury on 10 April 2015 while operating his dozer. He did not report his injury to his employer and completed his normal work shifts on the two or three days following the day of injury. He returned to his home on a scheduled leave rotation on 13 April 2015. [3] The appellant sought treatment for his injury from his general practitioner on 14 April 2015 and lodged a workers' compensation claim on 29 April 2015. While the self- insurer rejected the appellant’s claim for compensation on 11 June 2015, this decision was subsequently set aside by the regulator's review unit in a decision dated 9 October 2015. The accepted injury was described as an "aggravation of pre-existing degenerative spondylosis". [4] As a consequence of the review unit decision, the self-insurer made weekly payments for a period equivalent to 14 April 2015 to 10 July 2015 on the basis of a total incapacity for work, and reimbursed medical expenses incurred by the appellant from 14 May 2015 to 31 July 2015. [5] A decision to stop paying compensation and benefits was made by the self-insurer on 18 November 2015. The appellant sought a review of this decision on 22 February 2016, however on 10 May 2016 the review unit confirmed the self-insurer’s decision. It is this decision which is now subject to appeal. Nature of Appeal [6] The appeal to the Commission is conducted by way of a hearing de novo. The questions to be answered in the determination of the appeal are: (i) Whether the appellant had an incapacity for work after 10 July 2015 arising from the effects of an aggravation to a pre-existing degenerative back condition sustained at work on 10 April 2015; and (ii) Whether the appellant had an ongoing requirement for medical treatment after 31 July 2015 as a consequence of the work related injury? Legislation "32 Meaning of injury (1) An injury is personal injury arising out of, or in the course of, employment if— -- 2 of 12 -- 3 (a) for an injury other than a psychiatric or psychological disorder— the employment is a significant contributing factor to the injury; or (b) for a psychiatric or psychological disorder—the employment is the major significant contributing factor to the injury. (2) However, employment need not be a contributing factor to the injury if section 34(2) or 35(2) applies. (3) 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 other than a psychiatric or psychological disorder; (ii) a disease; (iii) a medical condition other than a psychiatric or psychological disorder, if the condition becomes a personal injury or disease because of the aggravation; … (4) For subsection (3)(b) and (ba), 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. …" "144A When weekly payments of compensation stop (1) The entitlement of a worker to weekly payments of compensation under part 9 stops when the first of the following happens— (a) the incapacity because of the work related injury stops; (b) the worker has received weekly payments for the incapacity for 5 years; (c) compensation under this part reaches the maximum amount under part 6. -- 3 of 12 -- 4 (2) If subsection (1)(b) or (c) applies, the worker’s entitlement to further compensation for the injury stops. (3) Subsection (2) does not apply to the worker’s entitlement to compensation under chapter 4A. (4) This section does not limit another provision of this Act that stops weekly payments. …" "144B When payment of medical treatment, hospitalisation and expenses stops The entitlement of a worker to the payment of medical treatment, hospitalisation and expenses under chapter 4 for an injury stops when— (a) the entitlement of the worker to weekly payments of compensation under part 9 stops; and (b) medical treatment by a registered person is no longer required for the management of the injury because the injury is not likely to improve with further medical treatment or hospitalisation. " General Practitioner Records [7] The appellant first sought treatment for his injury from his general practitioner, Dr Woodhouse, on 14 April 2015. According to the consultation notes of the visit, the appellant reported inter alia that he had hurt his back at work, that he was not experiencing any significant pain prior to the work incident, and that he had not previously experienced similar pain. The notes also recorded "dozer tracks worn – increased jolting and vibration and turning big jolts – almost impact". The notes added that the appellant experienced pain at "every bump and turn". [8] A CT scan was commissioned and, on review on 15 April 2015, Dr Woodhouse recommended treatment with anti-inflammatory medication and physiotherapy. While the record of this consultation disclosed that the appellant did not want to proceed with a workers compensation claim for the time being, he told his GP on 22 April 2015 that he would make an application to the self-insurer, and in connection therewith, a workers' compensation medical certificate was issued on 27 April 2015. [9] In the 27 April 2015 consultation, the appellant said that his pain had reduced from nine out of ten, to six or seven out of ten. The record also discloses the appellant’s intention to liaise with his employer about the prospect of undertaking light duties. The record of the consultation on 19 May 2015 included a note to the effect that the appellant would be guided by his physiotherapist in relation to a return to work on light duties. -- 4 of 12 -- 5 [10] In a consultation on 21 May 2015 with Dr Dean, the appellant reported "back" and "right hip" pain and said that his last visit to the physio occurred on 5 May 2015. The failure of the appellant to continue with physiotherapy, ostensibly for financial reasons, prompted Dr Dean to telephone the self-insurer. In the conversation he expressed the opinion that a delay in accessing physiotherapy had the potential to delay the appellant’s return to work. [11] In a further consultation with Dr Dean on 27 May 2015, the appellant reported ongoing pain. The record stated that he needed further time off work and physio. Further the record included an entry which intimated that as soon as the appellant’s workers’ compensation claim was approved, he would recommence physio. [12] In a consultation on 16 July 2015, the appellant reported to Dr Dean that his pain had been the same for about two months with increased pain in the event of exertion or driving a car for a couple of hours. Another entry read "for EPC see ex phys and physio". An EPC referral letter was subsequently completed on 23 July 2015. [13] On 3 August 2015 the appellant reported to Dr Dean that he was receiving physiotherapy treatment and that his pain was not as bad as had been the case. A discussion took place about returning to work on light duties and Dr Dean issued a workers’ compensation medical certificate stating that the appellant was fit to return to work on suitable duties from 3 August 2015 to 1 September 2015. Notwithstanding the certificate, the employer declined to offer the appellant suitable duties and he did not resume work. [14] The appellant reported to Dr Dean on 2 September 2015 that he experienced significant pain immediately after, or during, a two hour drive, and that he was experiencing ongoing pain in his lower back and right hip. A reference was made in the notes to the work capability assessment and that the appellant was "progressing with rehab with physio and ex physiologist". [15] On 21 October 2015 the appellant reported to Dr Dean that low back pain and right buttock pain was continuing and that his pain had been exacerbated by driving to Brisbane. On 26 October 2015 the appellant said that he had not been exercising due to back pain. On 5 November 2015 the appellant reported to Dr Dean that his pain was continuing and that his last physiotherapy session took place around the end of September 2015. Cessation of Payments and Benefits [16] The self-insurer’s decision to terminate the appellant’s entitlement to weekly payments and benefits followed assessments of the appellant, at the request of the self- insurer, by Dr Winstanley on 26 May 2015 and 11 November 2015. In his report arising from the May 2015 assessment, Dr Winstanley said that the appellant required a muscle rehabilitation treatment program under the care of a physiotherapist for a maximum period of six weeks. He opined that the appellant's accepted injury should reach maximum medical improvement on completion of this six week program. [17] In his November 2015 report, Dr Winstanley concluded that the aggravation that the appellant had sustained on 10 April 2015 had now ceased and that any ongoing symptomatology related to a pre-existing degenerative process present within the -- 5 of 12 -- 6 appellant’s lumbar spine. In terms of ongoing symptomatology as at 13 November 2015, Dr Winstanley opined in his report that while the appellant’s symptomatology had improved somewhat, he still has a "complaint of pain in his lumbar spine and right thigh and leg area in a non dermatomal distribution". [18] Dr Winstanley expressed a reservation about the appellant's presentation and reporting of symptoms during the November 2015 examination. He concluded that the appellant "has a complaint of pain which is not verifiable and has some inconsistency associated with examination". Dr Winstanley also opined that psychosocial factors were affecting the appellant's presentation of pain and said that his "injury presentation is associated with chronic pain status or depressive illness." [19] The validity of the decision to cease weekly payments and benefits in July 2015 was questioned when it emerged that the appellant had not completed the six week muscle rehabilitation program that Dr Winstanley had recommended at the end of May 2015. In his evidence in the proceedings Dr Winstanley confirmed that the appropriate treatment of the appellant’s aggravation was through "improvement in his muscle strength capacity at his core, around his spine …" (T3-16). [20] While the particular treatment recommended by Dr Winstanley did not eventuate, the appellant did complete two or three physiotherapy sessions in late April and early May. These sessions however were discontinued on 5 May 2015 and the appellant did not resume this type of treatment until the end of July 2015 when he commenced a physiotherapy and exercise physiology program on 28 July 2015. This program involved three sessions of physiotherapy and two sessions with an exercise physiologist. [21] It is clear then, that the treatment recommended by Dr Winstanley had not been completed prior to 31 July 2015. [22] In his evidence in the proceedings, Dr Winstanley confirmed the opinion initially expressed in his May 2015 report that the appellant’s ability to return to driving some form of machinery in July 2015 was premised on his completion of the muscle strengthening program. Further it was his opinion that the appellant would still derive benefit from the completion of a muscle strengthening program (T3-19): " … You’ve noted that, in your view, after the completion of that strengthening program that he would reach a state of maximum medical improvement. Once again, with knowledge of the fact that he had not, in fact, had the benefit of that program, would it be your view that Mr Ebsworth, as at 10 July and, indeed, in times continuing from then, would still require some form of medical treatment for the work related aggravation?---He would benefit from a muscle rehabilitation program to allow him to improve to maximum [indistinct] medical improvement. And would it be the case that even, as at today, that Mr Ebsworth would receive some benefit from that type of program being conducted?---Well, certainly, if he was in the same state as when I reviewed him, he would improve – it would – it should prove beneficial to him." -- 6 of 12 -- 7 [23] Dr Winstanley also accepted that the failure of the appellant to participate in the muscle strengthening program contributed to his condition becoming chronic. It was his evidence that it followed that if the appellant did not receive the treatment, he may not have been able to reduce his pain level, "so if he got pain over a period of time, by definition, its chronic" (T3-19). [24] Dr Gillett concurred with Dr Winstanley’s assessment. The effect of Dr Gillett's evidence that on seeking medical treatment for his injury there were things that needed to be done to stop the pain becoming chronic. (T2-24): "… So you basically provide pain relief. You provide some anti-inflammatory medication, reduce any inflammation, and you don’t rest the person. You get the person moving, and then you strengthen the muscles. If you do that, then you have the best outcome in relation to people with chronic – back injury that doesn’t require any surgical intervention. Most acute episodes like that will settle in a period of some six weeks, but there’s a group that don’t even despite the appropriate rehabilitation of muscle and so forth. So to maximise his recovery, early rehabilitation is the most appropriate thing." Appellant’s Submissions [25] It was the appellant’s submission that the decision of the regulator to terminate the appellant’s claim both in respect to weekly payments and medical expenses was based on the misconception contained in the reports of Dr Winstanley who was unaware that proper treatment had not been rendered. In particular terms, the appellant relied on the evidence of Dr Winstanley (T3-18), that the appellant had not received the treatment which was required for his condition to reach maximum medical improvement and that until such time as the appellant had received that treatment, the point of maximum medical improvement has not been arrived at. [26] The appellant maintained that the evidence of both Dr Winstanley and Dr Gillett supported a conclusion that the appellant’s claim should not have been closed because the failure to provide proper treatment had led to a "continuing work effect", and had caused the appellant’s pain to become chronic. It followed that, on all the evidence, the appellant had an ongoing incapacity for work within section 144A of the Act, and equally clearly, had an ongoing requirement for medical treatment in respect of his work-related aggravation. [27] The appellant was of the view that neither of the two obstacles raised by the regulator as presenting a barrier to grant of the appeal (implications said to arise from the video surveillance or the 3 August 2015 suitable duties clearance obtained on 3 August 2015) could prevail over the evidence of Dr Winstanley and Dr Gillett. Regulator's Submissions [28] The regulator neither supported nor opposed grant of the appeal but drew attention to a number of competing factors and considerations upon which the Commission was expected to determine the appeal. -- 7 of 12 -- 8 [29] In addressing considerations which might favour rejection of the appeal, the regulator submitted that two factors demonstrated that the appellant had some capacity for work at the end of July 2015. These factors were said to be consistent with Dr Winstanley’s opinion that the effects of the aggravation should have resolved within three months of the date of injury: (i) The surveillance footage (Exhibit 10) of the appellant taken on 31 July 2015 which appeared to show the appellant moving quite freely and without pain, and also being able to undertake physical tasks such as lifting/manoeuvring a tyre from the back of a utility tray on two occasions and squatting and crouching down under the vehicle; and (ii) The evidence of the appellant that he was fit to return to suitable duties on 3 August 2015, and was keen to return to work around that time. [30] On the other hand, the regulator conceded that a number of considerations supported grant of the appeal: (i) At no time did the appellant have the benefit of the type of treatment identified by Dr Winstanley in his May 2015 report (Exhibit 11); (ii) Having been apprised of the true facts, it was the evidence of Dr Winstanley that, as at 10 July 2015, the appellant would have had both an ongoing incapacity for work and an ongoing need for medical treatment; (iii) Dr Winstanley noted that the incapacity he had identified in his May 2015 report (Exhibit 11) relating to the inability of the appellant to operate machinery until he had completed the six-week treatment program, would be ongoing until he had completed that program; (iv) Dr Winstanley conceded that the decision to cease the claim for payment of weekly benefits could not be medically supported in light of the new facts that he had become aware of; (v) Dr Winstanley noted in his oral evidence that the failure to implement the recommended treatment program may have also played a role in the appellant’s condition becoming chronic. [31] In terms of s 144A of the Act, the regulator submitted that it was a matter for the Commission to decide whether, on the balance of probabilities, the appellant had an ongoing incapacity for work after 10 July 2015, or whether the incapacity had ceased. [32] In terms of s 144B of the Act, the regulator submitted that the evidence pointed to a conclusion that, at 31 July 2015, the appellant had an ongoing requirement for medical treatment arising from his work related aggravation injury. Video Surveillance [33] Surveillance video footage taken on 20 May 2015 (Exhibit 9) and on 31 July 2015 (Exhibit 10) was tendered into the evidence. -- 8 of 12 -- 9 [34] The surveillance footage taken on 31 July 2015 showed the appellant removing two land cruiser tyres from the back of a utility truck. It also showed the appellant bending down and peering underneath the vehicle. It was apparent that the appellant was able, albeit facilitated by one knee lowered close to the ground, to get down and peer underneath the vehicle and resume his standing position without any sign of discomfort. In whatever activity undertaken, the appellant did not appear to be significantly inconvenienced by his back condition. [35] Dr Gillett had not sighted the footage, but the activities were described to him. He was sceptical of whether any firm conclusion could be drawn from the surveillance footage. He conceded however that it would be a significant issue if the footage revealed that the appellant was bending over the tyres, and lifting and carrying the tyres. The effect of Dr Winstanley’s evidence was that the video surveillance indicated a level of capability or mobility on the part of the appellant that was inconsistent with his presentation on 11 November 2015. [36] In terms of the evaluation of the significance of the surveillance footage, Dr Gillett was interested in whether the appellant’s spine was straight or was twisting when the activities were being completed and whether the appellant’s body was twisting when he squatted down to look underneath the vehicle. For his part, Dr Winstanley said that "you look at the general movement of the back in that situation". It was also a consideration that back conditions are variable, that persons suffering from a back condition can have good days and bad days, and that the appellant’s presentation or capability on the day of the surveillance may have been improved by medication. [37] On my review of the footage, while the action of looking underneath the vehicle suggested reasonable flexibility or mobility, I don’t think that much turns on the activity related to the movement of tyres. The transfer of the tyres from the utility to the ground was effected with ease by the appellant’s son and by the employee of the workshop. No difficulty was experienced in dragging the tyre in a horizontal direction out of the tray before dropping the tyre to the ground and avoiding any need to bend or lower the tyre to the ground. The tyres did not appear to be particularly heavy and, in my view, not a lot turns on the appellant’s ability to execute the manoeuvre. For the most part the appellant’s back appeared straight, there was minimal lifting, and there was no significant twisting of the spine. [38] The footage taken on 20 May 2015 showed the appellant alighting from his vehicle at Brisbane airport and helping his partner remove a relatively small item of luggage from the back of the car. The appellant had driven his partner from their Sunshine Coast home to the airport. The impression I derived from the footage was that the appellant appeared to be moving gingerly and that he was conscious of his back condition. His fairly elaborate back exercise suggested that he had experienced soreness from the drive and he also appeared to take some care as he got back into the driver’s seat of his car. [39] The 20 May 2015 footage in itself is not particularly informative, but it is relevant in providing some form of measure of the improvement in the appellant's condition between 20 May 2015 and 31 July 2015. This improvement however is not controversial and it is consistent with other evidence, including the consultation notes of the appellant's visit to Dr Dean on 3 August 2015 and the appellant's evidence in the proceedings (T1-97) that he was keen to go back to work at that time. -- 9 of 12 -- 10 [40] I am reluctant to rely on a few minutes of video footage to make a determination of significance about the appellant's capacity for work after 10 July 2015. Further, I accept the appellant's submission that, on the balance of probabilities, any conclusion or opinion that may be drawn from a viewing of the video footage is not sufficiently compelling to displace the uncontradicted medical evidence about an incapacity to work after 10 July 2015. Readiness for Work [41] The regulator advanced the proposition that the appellant had a capacity for work on 3 August 2015. This capacity was demonstrated by his willingness to return to work on light duties at this time. Significantly, this readiness was consistent with Dr Winstanley’s opinion of 29 May 2015 that the effects of the aggravation would have resolved or reached maximum medical improvement in early July 2015. [42] There are two difficulties with the proposition. Firstly, in his evidence in the proceedings, Dr Winstanley acknowledged that by the end of July 2015 the appellant’s aggravation would not have reached maximum medical improvement because the appellant did not complete the muscle strengthening program. Secondly, if there were any capacity for work, there was no clear evidence establishing which duties or roles that the appellant may have been capable of undertaking. [43] There was never any doubt that the appellant was unable to resume work in his pre- existing position. Dr Winstanley had expressed a significant reservation about the appellant's capacity to return to work as a dozer driver in his May 2015 report, while the clearance for work issued by Dr Dean on 3 August 2015 included a number of restrictions and allowed a return on suitable duties only. Further, the employer refused to allow the appellant to return to work in any capacity. [44] While a determination about capacity for work is not limited to a determination about the appellant’s capacity to resume employment in his pre-existing position, I am not able to form a view, on the available evidence, about the appellant’s capability to undertake employment at large after 10 July 2015. The subject was addressed in a report prepared by Claire Welshe (Exhibit 7) following an assessment of the appellant on 13 June 2016. Dr Gillett's report of 14 January 2016 also referenced the matter. A lack of contemporaneity, however, makes it difficult to rely on these reports for the purpose of any determination about the appellant's condition at 10 July 2015. Reasoning [45] The decision to be made is whether the appellant had an ongoing incapacity for work and/or an ongoing requirement for medical treatment at the time compensation and benefits were ceased in July 2015. The ongoing considerations are to be determined by reference to the effects of the aggravation only, and do not exclude employment opportunities in general. The entitlement to weekly payments of compensation stops when the incapacity because of the work related aggravation stops. [46] Whether the effects of the aggravation had resolved on or before weekly payments and benefits were ceased is a question to be determined primarily on the medical evidence. After examining the appellant in May 2015, Dr Winstanley concluded that the appellant’s aggravation would resolve before the end of July 2015. After a second -- 10 of 12 -- 11 examination in November 2015, Dr Winstanley confirmed his earlier conclusion that the extent of the aggravation would have resolved within three months. This would have been the end of the matter unless Dr Gillett’s evidence were preferred to that of Dr Winstanley in the relevant areas, or unless there was some shift in Dr Winstanley’s position. [47] Dr Winstanley’s position did change when he was informed that the appellant did not complete the six week muscle rehabilitation program. Given that he accepted that his initial opinion was premised on an understanding that between the date of injury and 10 July 2015, the appellant would have completed the muscle rehabilitation program, he acknowledged that if the program did not go ahead, it could be concluded that the appellant’s aggravation would not have resolved within the time frames initially specified. Dr Winstanley also accepted that the appellant would, in current terms, benefit from further medical treatment in the form of physiotherapy or exercise physiology. In these circumstances, it is unnecessary to resolve the differences in the opinions and evidence of Dr Winstanley and Dr Gillett. [48] The importance of physiotherapy in the treatment of the appellant’s condition was underlined by a review of the medical records of the Noosa General Practice. This review discloses that the immediate medical response to the appellant’s injury after analysis of the radiology, included treatment by physiotherapy. Further, this treatment was consistently alluded to in subsequent consultations throughout 2015. In particular when Dr Dean became aware on 21 May 2015 that the appellant had suspended or stopped his physiotherapy on 5 May 2016, he was motivated to make contact with the self-insurer and opined in his notes that "the delay in access to physio has the potential to delay" the appellant’s return to work. [49] While I accept that the surveillance footage and the consultation notes of 3 August 2015 suggest that there is some capacity for work on the appellant’s part around this time, the determinative medical evidence is to the effect that the appellant’s aggravation would not have reached maximum medical improvement by 10 July 2015, and would not reach maximum medical improvement until he had completed the recommended rehabilitation program. [50] The only medical evidence in the proceedings supporting a conclusion that the effects of the aggravation had resolved within three months of the date of injury and that the appellant had a capacity for work after 10 July 2015, was the evidence provided by Dr Winstanley. Once his position altered, it was inevitable that different conclusions on capacity for work and the requirement for medical treatment would follow. In the circumstances I find, pursuant to s 144A of the Act, that the effects of the aggravation sustained by the appellant on 10 April 2015 had not resolved by 10 July 2015, and that his weekly payments should not have been ceased with effect from that date. [51] In terms of the appellant’s entitlement to ongoing medical benefits after 31 July 2015, the regulator appropriately conceded that the evidence pointed to a conclusion that the entitlement to medical benefits should not have been ceased on 31 July 2015. I accept that the evidence supports a decision that, pursuant to s 144B of the Act, the appellant had a continuing entitlement to the payment for medical treatment after 31 July 2015. -- 11 of 12 -- 12 Conclusion [52] The appeal is allowed and the regulator's decision dated 10 May 2016 is set aside. The matter of costs is reserved. [53] I order accordingly. -- 12 of 12 --