Embleton v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 96
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: Embleton v Simon Blackwood (Workers'
Compensation Regulator) [2015] QIRC 096
PARTIES: Embleton, Georgia
(Appellant)
v
Simon Blackwood (Workers' Compensation
Regulator)
(Respondent)
CASE NO: WC/2014/270
PROCEEDING: Appeal against a decision of Simon Blackwood
(Workers' Compensation Regulator)
DELIVERED ON: 21 May 2015
HEARING DATE: 21 and 23 January 2015
16 February 2015 (Appellant's submissions)
27 February 2015 (Respondent's submissions in
reply)
2 April 2015
20 April 2015
28 April 2015 (Appellant's further limited
submissions in reply)
MEMBER: Industrial Commissioner Thompson
ORDERS: 1. The Appeal is dismissed.
2. The Decision of Simon Blackwood
(Workers' Compensation Regulator)
dated 6 August 2014 is confirmed.
3. The Appellant is to pay the Regulator's
costs of and incidental to this Appeal to be
agreed or failing agreement to be the
subject of a further application to the
Commission.
CATCHWORDS: WORKERS' COMPENSATION - APPEAL
AGAINST DECISION - Decision of Simon
Blackwood (Workers' Compensation
Regulator) - Appellant bears onus of
proof - Standard of proof - Balance of
probabilities - Witness evidence - Whether the
Appellant had an entitlement in terms of s 144A
and s 144B of the Act - Matters of fact -
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Appellant was a worker - Appellant sustained a
personal injury arising out of, or in the course of
her employment for which employment was a
significant contributing factor - Incapacity -
Appellant had an incapacity but not as a result of
a work-related injury - Appellant does not have
entitlement under s 144A and s 144B of the Act
- Appeal dismissed - Decision of Simon
Blackwood (Workers' Compensation Regulator)
confirmed - Appellant to pay the Regulator's
costs of and incidental to this Appeal to be
agreed or failing agreement to be the subject of
a further application to the Commission.
CASES: Workers' Compensation and Rehabilitation Act
2003 s 11, s 32, s 144A, s 144B, s 550,
Lee Colbran v Workers' Compensation Board of
Queensland (1996) 152 QGIG 1180
Jones v Dunkel [1959] HCA 8
Carr v Baker [1936] NSWStRp 20
Thompson v Armstrong & Royce Pty Ltd (1950)
81 CLR 585
APPEARANCES: Ms O. Perkiss of Counsel, instructed by
McCowans Specialist Lawyers for the
Appellant.
Mr J. Wiltshire of Counsel, directly instructed
by Simon Blackwood (Workers' Compensation
Regulator), Respondent.
Decision (No. 2)
[1] Georgina Embleton (Appellant) lodged a Notice of Appeal with the Industrial
Registrar on 3 September 2014 pursuant to s 550 of the Workers' Compensation and
Rehabilitation Act 2003 (the Act) against a decision of Simon Blackwood (Workers'
Compensation Regulator) (the Regulator) released on 6 August 2014.
[2] The decision of the Regulator was to confirm the decision of the Insurer (Woolworths
Limited) to terminate the entitlement to compensation of the Appellant in accordance
with s 144A and s 144B of the Act.
Relevant Legislation
[3] The Legislation pertinent to this Appeal is s 144A and s144B of the Act:
"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;
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(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.
(2) If subsection (1)(b) or (c) applies, the worker's entitlement to further
compensation for the injury stops.
(3) 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."
Nature of Appeal
[4] The Appeal to the Commission is by way of a hearing de novo in which the onus of
proof falls upon the Appellant.
Standard of Proof
[5] The standard of proof upon which an Appeal of this nature must be determined is
that of "on the balance of probabilities".
Evidence
[6] In the course of the proceedings, evidence was provided by five witnesses.
[7] The Commission, in deciding to précis the evidence of the witnesses and
submissions, notes that all the material has for the purposes of this decision, been
considered in its entirety.
Witness Lists
[8] The witnesses for the Appellant were:
the Appellant;
Dr Ian McKenzie (Dr McKenzie);
Dr Kim Chye (Dr Chye); and
Dr Gamini Jayasinghe (Dr Jayasinghe).
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[9] The witness for the Regulator was:
Dr Brett Halliday (Dr Halliday).
Appellant
Embleton
[10] As a retail attendant of some eight plus years employment with Beer Wine and Spirits
(BWS) of which Woolworths Limited is the Parent Company, the Appellant was as
at 4 May 2014 working at the Nundah Village site. Her duties at the time included:
serving customers; and
restocking products - such as cartons of beer, wine bottles and casks.
The majority of time there was another employee present although she could be on
her own for up to four to five hours at a time.
[11] On 4 May 2014 her shift entailed commencing at 12.45 pm and ceasing at 8.15 pm.
At commencement of her shift she undertook some restocking duties and then
worked the "till" until about 5.00 pm, then undertaking more restocking activities.
At around 7.00 pm she moved about 20 cartons of casks (each weighing about
17 kilograms) in and around the coldroom, then leaving the coldroom and stocked
shelves in the "warm area" which involved lifting casks (each weighing about
4 kilograms) to shelves above shoulder height. Come the end of the shift she felt
"buggered" with both her arms feeling heavy.
[12] The following day (5 May 2014) she returned to work and when attempting to lift a
carton of six - six pack glass bottled wine, felt pain in her shoulder which prompted
her to refrain from lifting any more cartons on that shift. On Tuesday 6 May 2014
whilst at work she felt a burning pain whilst attempting to lift a carton containing
glass wine bottles (six - 750 millilitre bottles). The pain was concentrated in the
middle of her right shoulder and was of a nature that she immediately reported the
incident to her Manager who made an appointment for her at the Toombul Medical
Centre.
[13] Following the consultation with the Medical Practitioner, she was put on "light duties
and no repetitive movements" lifting less than five kilograms in weight. The doctor
did not at the time prescribe any pain medication and she returned to work and
completed the shift. As each day passed her shoulder became worse requiring three
more visits to the doctor in the following two weeks and was also referred to a
Physiotherapist who provided treatment in the form of manipulation and stretch
exercises.
[14] The Appellant continued with her normal roster until sometime after 11 May 2014
when at work her shoulder, neck and upper back was causing her such pain that she
was forced to lay down (at work) for two hours before being taken back to the doctor
who had initially provided her treatment. A medical certificate was provided that
allowed her to work but imposed a two kilogram limit in terms of lifting as well as
four hour shifts with a rest every 30 minutes. She was given duties that encompassed
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customer wine tasting and promotional activities. She continued to receive
physiotherapy treatments at this time.
[15] The Appellant lodged a claim for workers' compensation (dated 19 May 2014) which
was accepted on 23 May 2014 and picked up the medical costs expended by her at
that time. Around the same time she changed General Practitioners to be under the
treatment of Dr Chye who was located closer to her place of residence. A number of
WorkCover medical certificates were issued by Dr Chye between 22 May 2014 and
24 June 2014 and were tended in the proceeding [Exhibit 13].
[16] Treatment included an ultrasound which identified a rotator cuff tear and at the same
time, the Appellant continued to receive physiotherapy treatment which continued
after the claim was closed. As the level of pain was extremely high (eight out of ten)
she sought treatment from a Chiropractor with visits up to 7 January 2015. All
chiropractic costs were met by the Appellant as were the costs associated with the
Physiotherapist after the claim had been closed. The last day of work was
21 May 2014 and she had not worked since that date.
[17] The Appellant had been required by the Insurer to attend Dr Halliday on 5 June 2014
for a review during which she showed him a copy of a diagram prepared by herself
demonstrating the area of pain she was experiencing at the time. At the time of seeing
Dr Halliday she was experiencing a burning pain in her right shoulder and continues
to experience the same level of pain.
[18] Dr Chye was aware of her occupation and duties and in a medical certificate (dated
27 June 2014) stated the Appellant was unfit for her usual occupation. On
7 August 2014 Dr Chye provided a medical certificate to enable her to claim sickness
benefits and had diagnosed that there was a partial thickness tear of the subscapular
right shoulder.
[19] As a consequence of the injury the Appellant has been forced to relocate to the
Sunshine Coast and again changing General Practitioners to now be treated by
Dr McKenzie. On or about 31 October 2014 the Appellant was referred by
Dr McKenzie to a Neurologist (Dr Jayasinghe) and had seen him on one occasion
where she informed her "right arm. And my hand goes purple - my right hand and
the burning sensation in my shoulder, the burning pain and my neck - and the pain in
my neck and my upper back". Dr Jayasinghe prescribed medication (Endep) which
assisted with pain management.
[20] In December 2014 the Appellant had been referred also by Dr McKenzie to the
Nambour Hospital to attend a pain management clinic where, on her second visit, she
was tested for her range of movement. There was a further pain management clinic
scheduled for March 2015. Going back to 23 May 2014 on an attendance to
Dr Chye's surgery, she ended up being transferred to Prince Charles Hospital by
ambulance.
[21] The Appellant gave evidence of discolouration of her hand in that it had turned purple
which was in addition to other symptoms which included:
twitches from shoulder to elbow;
stabbing pains;
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tingling; and
stiffness.
[22] Under cross-examination the Appellant described the work events of 4 May 2014 in
moving individual cartons of wine said to be about 20 cartons in all. The activity
took about half an hour with there being no specific incident occurring [Transcript
p. 1-68]. She noticed some pain on 5 May 2014 and the next day she reported the
injury [Transcript p. 1-69].
[23] Upon her visit to a General Practitioner on 6 May 2014, she was diagnosed with
muscular strain to the right shoulder which later spread to the neck and upper back
[Transcript p. 1-70]. On around 14 May 2014 the Appellant conceded she had asked
the General Practitioner for time off from work but was refused with a certificate
being provided for further reduced duties [Transcript p. 1-71]. On her second visit
to Dr Chye she asked him for a medical certificate to allow time off but was unable
to do so as a result of "InjuryNET" which required an authorisation to change doctors
[Transcript p. 1-71].
[24] Around 22 May 2014 she consulted Dr Chye due to pain in her right shoulder, neck
and upper back as well as pain that was now in the other side of her body. A CT scan
was arranged which the Appellant accepted showed no abnormalities [Transcript
p. 1-72]. It was the next day she was taken by ambulance to the Prince Charles
Hospital while attending Dr Chye's rooms as a result of feeling nauseous and ill from
pain [Transcript p. 1-73].
[25] On the day the Appellant went to see Dr Halliday, she denied being reluctant to be
examined and that she was unable to demonstrate a range of movements [Transcript
p. 1-73]. It was accepted by the Appellant she complained of pain when Dr Halliday
attempted to conduct an examination. The Appellant was unable to recall telling
Dr Halliday or someone at his rooms she was unable to remove her cardigan due to
being unable to lift her arms but could recall having to ask Dr Halliday's receptionist
to hold a phone to her ear because it was too painful to lift her arm [Transcript
p. 1-74]. The Appellant accepted that Dr Halliday had arranged an MRI of her spine
which showed nothing was wrong. There was an MR Arthogram taken on
26 August 2014 which the Appellant conceded showed there was no tear in the
rotator cuff [Transcript p. 1-74].
[26] The Appellant had undergone nerve conduction studies which had not shown any
abnormalities [Transcript p. 1-75]. The initial medical certificates referred to a strain
to the shoulder, neck and upper back with the Appellant agreeing that the symptoms
described by her would be pretty extreme for a muscle strain [Transcript p. 1-78].
[27] At the time of giving evidence she was not experiencing any swelling of the arm or
shoulder and no specific changes to or issue with sweating in her right arm. In terms
of discolouration it was only an occasional thing [Transcript p. 1-78].
[28] In re-examination the Appellant gave evidence of having had a hard day (work wise)
on 4 May 2014 which related to a staff member from the night before not showing
up, leaving a shift understaffed and the need to work a bit harder to catch up.
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Dr McKenzie
[29] Dr McKenzie, a Medical Practitioner, first treated the Appellant on 28 July 2014 at
which time she presented as feeling faint and dizzy also mentioning she had an injury
to her shoulder two months prior and had been on pain medication which she had
ceased a few weeks earlier. On that visit they did not go into a great deal of detail
about her work-related injury. The next consultation on 29 July 2014 resulted in the
Appellant being sent for an MRI of the head as they were worried about her balance.
[30] On 5 September 2014 the Appellant started consulting Dr McKenzie about her
shoulder and he provided a referral to a Physiotherapist on 9 September 2014 in
which he stated:
"She injured her right shoulder on 4th May 2014 lifting heavy cartons at work
she was required to continue lifting these after the onset of pain trapezi back
and into left shoulder. She has seen an orthopaedic surgeons who have done a
CT c spine and MRI shoulder MRI spine. These did not demonstrate any
lesions. She may have CRPS. She last saw Dr Mark Welsh who was going to
review her radiology studies."
[31] On the issue of the right and left shoulder and the pain that was at the time across the
back and extending to the left shoulder it was a kind of Complex Regional Pain
Syndrome (CRPS) which may come from a very minor injury or lesion which may
settle but the pain continues and progresses over time. The Appellant had presented
with a pattern of pain which was not restricted to her shoulder and scans and Medical
Specialists had found nothing surgical that required correction in the shoulder.
Referrals were made also to a Psychologist and to a couple of Neurologists.
[32] On 23 October 2014 a referral to Dr Jayasinghe, a Neurologist, contained an almost
identical reference as had been contained in the referral to the Physiotherapists. The
purpose of the referral to this Specialist was primarily for him to review the diagnosis
of CRPS. In correspondence (dated 31 October 2014) Dr Jayasinghe informed
Dr McKenzie that:
"On examination there was some distal weakness in the smaller muscles of the
right hand. The deep tendon reflexes were symmetrical. There was no sensory
loss.
Nerve conduction studies were performed in the right upper limb and there was
no evidence of a carpal tunnel syndrome.
My impression is that her symptoms are due to a Reflex Sympathetic Dystrophy.
I have started her on Endep 10mg at night and suggested that she be referred to
the Pain Clinic at the Nambour Hospital."
[33] Dr McKenzie described the diagnosis of CRPS as a "diagnosis of exclusion" which
was based on history and there can be some physical findings. Dr McKenzie's
suspicions were based on the actual pattern of pain, history of pain and the negative
findings of the various medical investigations that had identified no cause for her
pain. He knew of no other test that could confirm or discount the diagnosis of CRPS.
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[34] Dr McKenzie confirmed that 5 September 2014 as the date the Appellant required
treatment for CRPS. On why the Appellant developed CRPS he was unable to
answer that question, however he offered suggestions that included:
being related to an early work-related injury; and
possibly the repetitive nature of the work subsequent to the initial injury.
[35] Under cross-examination, Dr McKenzie confirmed treatment details relating to the
initial consultations with the Appellant indicating it was about three months after the
work incidents complained of by her. On the matter of the various investigations he
was not privy at the initial stage of the actual imaging reports but relied upon the
history provided [Transcript p. 1-90]. Dr McKenzie had received the
MR Arthrogram report which had been conducted about three months after the
work-related event which, according to his evidence, showed "minimal tendinopathic
change to the supraspinatus insertion with minimal associated sub acromial bursitis,
no rotator cuff tear, intact labrum" which at the time was not the cause of her pain
but was the nature of CRPS [Transcript p. 1-91].
[36] Dr McKenzie inferred that it was the repetitive work undertaken by the Appellant
after the initial injury that set off the CRPS [Transcript p. 1-92]. Dr McKenzie had
made no record in his clinical notes of having observed any discolouring [Transcript
p. 1-93].
[37] In re-examination Dr McKenzie, in reading the ultrasound report of 24 June 2014,
opined that there was an injury or a tear. His evidence was that his understanding of
CRPS was even a minor event could lead to its development.
Dr Chye
[38] Dr Chye, a qualified Medical Practitioner and Occupational Therapist, on or around
24 June 2014 referred the Appellant for an ultrasound of the right shoulder as she
was continuing to complain of pain. The ultrasound concluded she had a "slight
flattening of the bursa surface of the subscopularis tendon" that was consistent with
a small partial thickness tear. Following the ultrasound he informed the Appellant
there was still some injury to the area but would not likely to require surgery and she
could recover after rehabilitation through physiotherapy and given time to recover.
[39] Prior to ordering the ultrasound he was requested by the Insurer to indicate whether
he agreed with the opinion of Dr Halliday in the following terms:
"In his report, you will note that Dr Halliday has advised that she may have
elements of a cervical strain, however goes onto say that it is extremely unlikely
that the described mechanism was significant enough to cause such significant
symptoms and there is no orthopaedic diagnosis of a work injury that is ongoing.
I would be pleased if once you have reviewed this report you could please advise
(by circling your answer):
Do you agree that there is no orthopaedic diagnosis? Yes [circled]
Do you agree that there is no ongoing work injury? No [circled]."
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[40] Dr Chye in response agreed that concerning the cervical strain there was no
orthopaedic diagnosis but did not agree that there was no ongoing injury which
according to his evidence meant he did not think the original injury had fully
resolved. Had made a notation in his response that the Appellant "still needs
physiotherapy and a return to work program".
[41] As a result of the ultrasound, the ongoing treatment recommended was that of
physiotherapy and pain medication. On 27 June 2014 he issued a medical certificate
that stated:
"And that she is unfit for her usual occupation from Monday, 30th of June until
Friday 4th of July 2014 inclusive".
Dr Chye continued to issue medical certificates even after the workers' compensation
claim had ceased because her condition had not improved and she was not ready to
return to her usual occupation because of her injury. The Appellant continued to
complain of discomfort and pain which had arisen from the work injury.
[42] Under cross-examination Dr Chye was aware that when he first saw the Appellant
on 14 May 2014 she had already seen Dr Walsh that morning and that Dr Walsh had
diagnosed a muscular strain and certified her for suitable duties for a period of time
[Transcript p. 1-166]. On that day Dr Chye stated that he had "probably" not given
her a medical certificate for time off because she had already seen Dr Walsh
[Transcript p. 1-116].
[43] On 22 May 2014 he issued a medical certificate that diagnosed muscle strain to the
neck, upper back and both shoulders [Transcript p. 1-117]. The following day
(23 May 2014) she came to see him to get the results of a CT scan and was in quite
extreme pain having to lie down in the waiting room. She appeared so distressed
from pain that he had an ambulance take her to the Prince Charles Hospital.
Dr Chye's evidence was "there are incidences that everybody experiences pain
differently, and to her at that point in time the pain was very severe" [Transcript
p. 1-118].
[44] On the matter of a tear to the right rotator cuff, according to Dr Chye that would
cause pain into her neck, upper back and left shoulder by referred pain [Transcript
p. 1-118]. In respect of Dr Halliday's report he understood that the report considered
the shoulder, upper back, neck in addition to the cervical spine [Transcript p. 1-119].
In marking the box "yes" to agree there was no orthopaedic diagnosis, it was
Dr Chye's understanding that there was no orthopaedic diagnosis for the pain but the
Appellant still had ongoing pain and needed further physiotherapy management
[Transcript p. 1-120].
[45] When informed that on 26 August 2014 there had been an investigation by way of a
Magnetic Resonance Arthrogram which showed no rotator cuff tear, Dr Chye
accepted he would prefer that finding over that of an ultrasound [Transcript p. 1-121].
[46] Dr Chye did not concede that the medical certificate completed by him on
27 June 2014 certified the Appellant fit to return to normal duties from 29 June 2014
while on the same day preparing a medical certificate (not a workers' compensation
certificate) saying she was unfit for her usual occupation from 30 June 2014 was a
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recognition that beyond that date it was not a work-related injury [Transcript
p. 1-122].
[47] In re-examination Dr Chye stated he had issued two medical certificates on
27 June 2014 because he had been informed the workers' compensation would cease
at a certain date and the Appellant probably needed to receive a different medical
certificate so she could be excused from work. The cease date of the workers'
compensation claim was 29 June 2014.
[48] Whilst he acknowledged there was no orthopaedic diagnosis for the Appellant's pain
(at 18 June 2014) his diagnosis was there still remained a soft tissue injury or muscle
strain.
Dr Jayasinghe
[49] Dr Jayasinghe, a consultant Neurologist having practised since 1975, identified his
main area of practice as Neurology which concentrated on areas such as the brain,
spinal cord and peripheral nerves.
[50] The Appellant had been referred to him by Dr McKenzie and he saw her on
31 October 2014. There was advice given to him that the Appellant had already seen
an Orthopaedic Surgeon and had some nerve conduction studies performed. The
same referral advised she may have CRPS, she was not able to tolerate Lyrica and
they required Neurologist clarification of the diagnosis with further advice regarding
pain management.
[51] At the time of consultation he was provided with a history that in May 2014 after
lifting heavy cartons at work she felt weakness in her right upper limb. The next day
when attempting to lift a carton she felt a heavy pain in the right scapular region. The
Appellant continued to work and the next day the symptoms continued spreading to
the left upper thoracic region and the right upper limb. The spreading of the pain was
due to Reflex Sympathetic Dystrophy (RSD).
[52] Dr Jayasinghe could not give the exact reason for the pain spreading other than it is
believed that there is some autonomic dysfunctions and that pain can spread widely
in whole different areas. The pain usually follows an injury to the body which can
be a severe injury or a "mild injury as much as a prick" can result in RSD. Even a
bruise or a soft tissue injury can lead to the same condition.
[53] When the examination was being conducted the Appellant told him the pain involved
the right upper limb, the neck and upper thoracic region and scapular region. In
conducting a physical examination he found some mild weakness of her fingers and
finger flexion on her right side. There was some discolouration of the right forearm
of a reddish or dusty colour with the patient mentioning some discolouration of the
right upper limb.
[54] Dr Jayasinghe had undertaken nerve conduction studies for the purposes of making
sure there was no Carpel Tunnel Syndrome or other Neuropathy or damage to any
peripheral nerves however the test revealed no nerve damage and from the history
provided it was his opinion this was probably a RSD likely to fall under CRPS-2. At
the time he prescribed medication in the form of Endep which was useful for RSD
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pain as well as other types of pain. He recommended to Dr McKenzie that the
Appellant be referred to the Pain Clinic at the Nambour Hospital as the treatment of
CRPS is best done by a Pain Specialist.
[55] On 19 December 2014 he received correspondence from the Regulator (under the
signature of Carolyn Shedden) advising they had been provided with a copy of his
report of 31 October 2014 in which he had advised of his impression that the
Appellant's symptoms were due to a RSD and requested that he kindly advise whether
in his opinion there was a causal connection between the diagnosis of RSD and the
work-related injury to her right shoulder sustained on 4 May 2014.
[56] On 19 December 2014 he authorised correspondence in response to the Regulator's
correspondence that stated:
"In answering your question, any type of injury to a limb can result in Reflex
Sympathetic Dystrophy.
Therefore my impression is that the injury which she suffered to the shoulder
may be causing her symptoms."
[57] Dr Jayasinghe could offer no evidence as to anything else that may cause the
symptoms in question and was given no exact reason by the Appellant for those
symptoms. In terms of when the condition may have arisen or symptoms started he
was unable to put an exact date on it.
[58] Under cross-examination Dr Jayasinghe acknowledged that on the occasion he saw
the Appellant it was almost six months after the work event she described [Transcript
p. 2-12]. In relation to the nerve conduction studies he performed he could find no
evidence of any other neurological pathology to account for the symptoms
[Transcript p. 2-13]. Dr Jayasinghe accepted a proposition that in terms of potential
causation of CRPS there needed to be an injury and that work itself could not give
rise to CRPS [Transcript p. 2-13].
[59] Dr Jayasinghe had not formed an opinion, specifically on what injury was sustained
to shoulder and was aware that an MR Arthrogram of her shoulder had revealed there
was no rotator cuff tear. There were no other radiological findings of a specific
orthopaedic or anatomical injury to her shoulder or findings of injury to her spine
[Transcript p. 2-13].
[60] There were a number of questions put to Dr Jayasinghe in the following terms that
he was unable to answer:
Is it very unlikely that CRPS would arise out of something as minor as a
muscle strain?;
Is it the case, ordinarily that CRPS symptoms tend to come on sometime
after injury - as in more likely weeks and months?;
Would it be unusual that CRPS could arise from an event within a week
or two of the initial event?; and
If CRPS arose out of events that occurred on 4 May 2014 would it be more
likely some months later that the symptoms would have arisen?
[Transcript p. 2-14].
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[61] On the finding in his report regarding some distal weakness in the smaller muscles
of the right hand, deep tendon reflexes were symmetrical and no sensory loss,
Dr Jayasinghe acknowledged those findings were essentially normal [Transcript
p. 2-14]. The distal weakness in small muscles according to his evidence could come
from many causes but CRPS certainly can cause muscle weakness with no evidence
of nerve damage [Transcript p. 2-14].
[62] Dr Jayasinghe conceded with regards to the discolouration having "a purple hue", he
had not made a mention of that in his report. He indicated it was in his chart
[Transcript p. 2-15] and he did notice some discolouration of the Appellant's right
arm on examination [Transcript p. 2-15]. The highest he was able to state in either
of his reports from 31 October 2014 or 19 December 2014 was that it was his
impression that RSD is the cause of the Appellant's symptoms [Transcript p. 2-15].
In relation to the condition arising from the events of 4 May 2014 it was again an
impression and he was a long way from certain about that [Transcript p. 2-15].
[63] Dr Jayasinghe's evidence was repeated regarding his "impression" that the Appellant
suffered a soft tissue injury to the shoulder on 4 May 2014 and that the RSD came as
a result of that. His diagnosis was said to be based on:
history;
clinical findings;
discolouration of the hand; and
weakness in the hand [Transcript p. 2-19].
[64] In re-examination Dr Jayasinghe recalled observing a reddish hue of the right forearm
which was usually associated with RSD and in this context was a most likely
diagnosis. He reaffirmed there was no specific test for RSD and it was mainly a
clinical diagnosis. On why he could not answer a question in cross-examination
about whether something as minor as a muscle strain could cause CRPS, his evidence
was "I have not read about this in the literature, so that's the reason". CRPS was
something that was not commonly seen in his practice.
Regulator
Dr Halliday
[65] Dr Halliday, a Consultant Orthopaedic Surgeon, prepared an Independent
Medico-Legal Report (dated 18 June 2014) at the request of Employers Mutual. The
Report was based upon an examination and interview of the Appellant on 5 June 2014
[Exhibit 20].
[66] On the taking of history and examination of the Appellant, a couple of things were
said to have stood out. On her arrival she requested if she could lie down while she
waited for the appointment (which was not accommodated) and whilst being
interviewed she had laid down which was something of a rarity in his practice. The
interview ended up with Appellant lying down also at times and seated with a lot of
complaints being made about pain in her neck and both shoulders.
[67] Dr Halliday reviewed the radiology available at the time being a CT of the cervical
spine which indicated it was normal. Given her presentation and level of pain
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complained of he decided to arrange a further examination of the cervical spine in
the form of an MRI. Both the MRI films and reports found all was normal.
[68] In the report Dr Halliday noted that the Appellant had mentioned being unable to
remove her cardigan which made sense if someone had a particularly sore joint or
shoulder it would be difficult to remove clothing. However in such circumstances it
is as difficult to get dressed as it is to get undressed. Also the fact that there was a
hot pack underneath the cardigan was a little unusual. Another aspect of the process
that seemed unusual was the request made to his receptionist to hold the phone to the
Appellant's ear because someone with a sore neck would still be able to use their arm
to lift a phone (that was not a particularly heavy device) and if you had a sore shoulder
then the other shoulder could be used.
[69] The level of pain reported during the examination and the features of the clinical
examination were said by Dr Halliday to be "far out of proportion to any
demonstrable pathology, and orthopaedic condition". There is no explanation for
those behaviours on an orthopaedic basis. Dr Halliday concluded that he could not
identify any orthopaedic diagnosis of a work injury that was ongoing.
[70] With regards to the ultrasound report, it was his evidence that ultrasound is a
notoriously unreliable, user dependent investigation with an MRI being considered
much more accurate. So where the ultrasound showed there may have been a small
partial thickness tear the MRI found no such tear.
[71] On the matter of whether the Appellant sustained a shoulder injury as a result of
work, Dr Halliday suggested his report may not be entirely accurate as to the exact
mechanism of injury in that the weight of cartons that needed to be moved may have
been less. On presentation the Appellant had pain in her neck and pain in her left
and right shoulder which was bilateral. A rotator cuff tear does not usually affect the
neck or the other shoulder.
[72] Dr Halliday gave evidence of there being a lot of conjecture in the literature about
the existence of conditions such as RSD which was the old name for CRPS. There
were two varieties of CRPS with RSD being lumped into one of them where there
had not been a specific nerve injury but rather a global injury to the area.
[73] In terms of RSD as seen in Dr Halliday's practice, it is usually an unfortunate
complication of severe trauma and can occur after major injuries often where a lower
limb has been crushed or there has been a motor cycle accident with a velocity injury
with high energy to the area not just a broken bone but damage to soft tissues as well.
Whilst not being common, it is seen in orthopaedic practice day-to-day.
[74] The symptoms at the time of the Appellant's presentation were not of RSD as he had
seen her a few weeks after the injury and there is usually long-term changes from
disuse. The sympathetic dystrophy for instance in a shoulder would affect the whole
upper limb in a way, with the colour changes and often peripheral wasting, pins and
needs etcetera. There were none of these clinical features present when he examined
the Appellant.
[75] The likelihood of CRPS arising from the Appellant's muscular strain was described
by Dr Halliday as highly unlikely.
-- 13 of 31 --
14
[76] On the report of Dr Jayasinghe (dated 31 October 2014) he noted that he had not
observed colour changes or observed any clinical features of RSD other than some
weakness of the small muscles of the hand leading to what was described as a
presumptive diagnosis. Dr Halliday did agree with Dr Jayasinghe to refer the
Appellant to the Pain Clinic at the public hospital.
[77] Under cross-examination Dr Halliday recalled being informed by the Appellant of
having burning pain in the right scapula [Transcript p. 1-102]. On conducting the
examination of the Appellant he observed a 40 degree restriction in both shoulders.
He did not test for muscle wasting in either shoulder and made no comment on
discolouration [Transcript p. 1-103]. Dr Halliday conceded he had not inquired
whether the Appellant:
had any change or alteration in the level of sweatiness in either hand;
had burning pain which had changed in severity from 4 May 2014; and
had experienced any tremors or spasms in the right shoulder [Transcript
p. 1-104].
[78] On his referral for an MRI for the cervical and thoracic spine he acknowledged he
had not sought an MRI for the right shoulder [Transcript p. 1-104]. The diagnosis of
the subscapularis tendon was consistent with a small partial tear but was not
consistent with the burning pain as described by the Appellant [Transcript p. 1-105].
The diagnosis was consistent with a restriction or an inability to do a full movement
of the right shoulder but not the left shoulder or the neck [Transcript p. 1-105].
[79] The presentation of the Appellant on 5 June 2014 was inconsistent with a normal
presentation for injury and was not consistent with a strain to the right shoulder and
the neck [Transcript p. 1-105]. Whilst Dr Halliday sees patients with CRPS as part
of their orthopaedic condition on a regular basis, treatment of the syndrome is
undertaken by Specialists in pain treatment [Transcript p. 1-105]. Dr Halliday agreed
that there was a broad understanding that a person with RSD could be classed as
having CRPS-1 [Transcript p. 1-106]. He accepted if a nerve conductive study test
came back negative (as was the case in this matter) it did not define or identify
whether someone is a CRPS-1 or CRPS-2 [Transcript p. 1-106].
[80] In the current situation the nerve conduction test of carpel tunnel was completely
irrelevant and whilst there was no diagnostic test to diagnose CRPS it was usually
diagnosed on clinical examination and taking into account the patient's history
relevant to the development of the condition [Transcript p. 1-106].
[81] Dr Halliday agreed that a Neurologist such as Dr Jayasinghe was an appropriate
person to consider the diagnosis of the CRPS but such a diagnosis would have to be
made on his clinical findings [Transcript p. 1-107].
[82] At four weeks post injury it was the evidence of Dr Halliday that CRPS was not
present and was not a diagnosis that could be considered mentioning that the word
"chronic" implies long-term [Transcript p. 1-108]. With regards to his report and
question 7 where he made a recommendation in the following terms for ongoing
treatment and rehabilitation, but was never asked to reassess the Appellant:
-- 14 of 31 --
15
"Ms Embleton requires a rapid increase in her physiotherapy program. Simple
acupuncture as her sole mechanism of treatment apart from analgesia is
unlikely to improve the situation. There appears to be a significant
psychological overlay in this case. There are a range of issues that
Ms Embleton complains about related to her initial treating doctor and her
work situation." [Transcript p. 1-108]
[83] Dr Halliday after the Appellant undertook the treatment recommended was not asked
whether he recommended her claim should cease [Transcript p. 1-108].
Submissions
Regulator
[84] The Regulator, at the conclusion of the evidentiary phase of the proceedings, handed
up written submissions in addition to addressing orally some points arising from the
evidence. Submissions in reply were provided in written form on 27 February 2015.
Regulator's Written Submission - 23 January 2015
[85] The Appeal arose from an application for compensation by the Appellant on
19 May 2014 for injuries to her "back, neck, shoulder" said to be sustained over a
period of time from lifting cask cartons in a coolroom with symptoms appearing on
6 May 2014. The claim was accepted by the Insurer for "muscle strain neck, upper
back and both shoulders", with benefits of medical treatment and weekly benefits
paid.
[86] The Insurer ceased the claim effective 29 June 2014 and in a decision dated
6 August 2014 the Regulator confirmed the decision.
Legislation
[87] Sections 144A and 144B were identified as relevant sections of the Act in the
determination of the Appeal, however if the Commission was to determine the
Appellant had an entitlement to weekly benefits beyond 29 June 2014, then it would
be unnecessary to further consider s 144B(b). If the Commission was to decide the
Appellant's entitlement to weekly benefits ceased at 29 June 2014 then consideration
would need to be given as to whether there is any ongoing entitlement to medical
treatment that existed beyond that date.
Meaning of "incapacity" for work
[88] The submission cited Colbran v Workers' Compensation Board of Queensland1
which clarified a worker is not incapacitated for work merely because they are now
incapable of returning to their previous employment if there is some employment for
which they are suited and which is reasonably accessible to them.
1 Lee Colbran v Workers' Compensation Board of Queensland (1996) 152 QGIG 1180
-- 15 of 31 --
16
Matters for Determination
[89] In respect of the Appellant's neck, back and shoulder pain she must prove that:
her entitlement to weekly compensation had not stopped because her
incapacity because of the work-related injury has not stopped; and
her entitlement to payment of medical expenses has not stopped because
the injury is likely to improve with further medical treatment.
Onus of Proof
[90] Onus is on the Appellant to satisfy on the balance of probabilities she has an ongoing
entitlement to compensation. Satisfaction of the standard of proof requires more than
a mere possibility that particular events occurred. Authorities cited included Jones v
Dunkel2 and Carr v Baker3.
The Work Injury
[91] On the Appellant's evidence the relevant work causative to her injury was carried out
in a 30 minute period on 4 May 2014 when she shifted four cartons of wine casks
from the shop floor to the coolroom and placed wine casks on shelves. There was no
specific incident and the tasks performed by her were consistent with her regular
duties over the 8.5 years of employment with BWS. The work in question caused
her to feel tired on 4 May 2014 but there was no pain or symptoms on that day. It
was not until the following day that she felt pain and on 6 May 2014 she reported it
to her Manager and went to see Dr Walsh, a General Practitioner.
Subsequent Development of Symptoms
[92] The submission provided a chronology from the relevant work issue on 4 May 2014
until the ceasing of her claim for compensation on 29 June 2014. There was a
progressively worse spreading of pain to her neck, upper back and left shoulder in
the days immediately following 4 May 2014 and by 14 May 2014 she was
complaining of extreme pain and incapacity. Dissatisfied with Dr Walsh's refusal to
provide a medical certificate for time off work, she saw Dr Chye who subsequently
(after her first visit) gave her time off.
[93] Dr Halliday, having examined the Appellant on 5 June 2014 completed a report in
which he was unable to identify any orthopaedic diagnosis of a work injury that was
ongoing.
What injury did the Appellant sustain as a result of her work on 4 May 2014?
[94] The contemporaneous diagnosis of the General Practitioners was muscular strains to
her right shoulder and potentially to her neck, upper back and left shoulder. It was
common ground the symptoms of which the Appellant complains far exceeds those
expected from a muscle strain. The nature of the work described by the Appellant
appears inconsistent with causing a major injury.
2 Jones v Dunkel [1959] HCA 8
3 Carr v Baker [1936] NSWStRp 20
-- 16 of 31 --
17
[95] The Appellant's complaints had been investigated medically by:
CT scan of cervical spine on 22 May 2014;
MRI of cervical spine on 10 June 2014;
ultrasound of right shoulder on 24 June 2014;
MR Arthrogram of right shoulder on 26 August 2014;
nerve conduction studies performed on 14 October 2014; and
further nerve conduction studies on 31 October 2014.
[96] With the exception of the ultrasound all of the above investigations were normal,
identifying no pathology.
[97] The ultrasound was described by Dr Halliday as an unreliable diagnostic tool (a point
conceded by Dr Chye) with its best use being as a screening tool. Dr Halliday
acknowledged that for rotator cuff tears to occur it would require a particular event
causing some wrenching of the shoulder and in this case there was no event. Further
that a rotator cuff tear would not have accounted for the Appellant's reported
symptoms in her neck, upper back or left shoulder.
[98] The evidence was uncontested in that the Appellant does not have an orthopaedic
injury and at the time the Insurer made the decision to cease the Appellant's claim.
It was the correct decision as there was no evidence of any injury arising out of the
events at work on 4 May 2014. Accordingly there was no incapacity for work or the
need for medical treatment arising from the work events. Whilst the Appellant
continues to complain of severe symptoms there is no link between those symptoms
and the events at work on 4 May 2014.
RSD/CRPS
[99] The basis on which the Appellant currently alleges she has an ongoing work injury
related to her work on 4 May 2014 is that she had sustained RSD or CRPS. The
diagnosis is uncertain and there is no evidence of a link between that condition and
the Appellant's work.
[100] Dr Halliday did not consider the Appellant had CRPS arising from the work event
for reasons including:
CRPS was not common;
CRPS is a secondary condition arising from some form of trauma or lesion
and the work performed on 4 May 2014 cannot in itself give rise to CRPS;
CRPS more commonly seen following severe trauma or surgical
procedures and highly unlikely to have arisen following a minor muscle
strain; and
CRPS generally arises many weeks or months after the initial trauma and
frequently after the initial trauma had healed.
[101] The Appellant was complaining of severe pain through both shoulders and her neck
and upper back within a week of the symptoms arising and the pain had required
admittance to hospital on 23 May 2014.
-- 17 of 31 --
18
[102] The submission described the symptoms generally associated CRPS in both the short
and long-term. Of the potential symptoms (excluding the symptom of severe pain)
the only symptom reported (to only Dr Jayasinghe) from the Appellant's evidence
was that her hand acquires a dark colouration or purple hue from time to time and
then only occasionally.
[103] There was no clinical evidence that the Appellant had CRPS and no substantive basis
for linking that diagnosis to the work performed on 4 May 2014. Given the extreme
symptoms have no orthopaedic or other anatomical basis and they have not varied in
nature significantly since a week after the alleged work incident, if the Appellant did
not have CRPS when she saw Dr Halliday then her symptoms cannot now be
explained by CRPS in relation to the work event.
[104] These submissions were prepared prior to Dr Jayasinghe giving evidence and in
terms of his report it was observed that:
he only saw the Appellant on one occasion - six months after the work
event;
did not observe clinical signs of CRPS;
his diagnosis is effectively based on a history and a lack of alternative
explanations;
the language in his report was quite uncertain with his use of the terms
"impression" and "may";
he did not explain what the shoulder injury referred to on
19 December 2014 was, noting there was no evidence of an injury to the
rotator cuff; and
he did not explain the nature of the link between the work performed on
4 May 2014 and a diagnosis of RSD.
[105] On the evidence, Dr Jayasinghe was no better placed than Dr Halliday to comment
on or make a diagnosis of CRPS.
[106] The source of the Appellant's severe and ongoing symptoms remain unexplained but
the evidence is not sufficient to prove, on the balance of probabilities, that it arises
out of work events. On the evidence the Commission should not be satisfied that the
Appellant's work gave rise to any incapacity or need for treatment beyond
29 June 2014.
Incapacity and Medical Treatment
[107] In terms of the tests within ss 144A and 144B of the Act:
if the Appellant did not have an ongoing work injury at the time she saw
Dr Halliday then she could not have had a incapacity for work arising
from the work events at that time; and
while Dr Halliday recommended physiotherapy, it was aimed just at
getting her back to work and as she did not have a work injury any need
for physiotherapy did not arise out of a work injury and there was then
no medical treatment which was going to improve her work condition.
-- 18 of 31 --
19
[108] It was submitted the Commission should dismiss the Appeal and confirm the decision
of the Regulator dated 6 August 2014 and order costs against the Appellant.
Regulator's Oral Submissions - 23 January 2015
[109] There was evidence said to be really indisputable that there was no significant
orthopaedic injury or lesion that occurred on 4 May 2014 and potentially all that
could have arisen out of the work events was a muscular strain. The medical
certificates record the contemporaneous diagnosis of muscular strain which in the
ordinary course would be expected to resolve over a period of some weeks.
[110] On the issue of CRPS whilst there were differing views Dr Halliday was quite strong
and certain in his views as to why the symptoms complained of by the Appellant
were unlikely to be due to CRPS arising from 4 May 2014. Dr Jayasinghe was said
to be uncertain in some of his evidence around CRPS, was unaware of literature and
at times unable to answer questions with respect to the timing. Dr Halliday was very
clear it was unlikely for CRPS to arise within the timeframes relied upon by the
Appellant. On the matter of discolouration there was no evidence of the Appellant
having reported this to the General Practitioners with her own evidence being it
occurred occasionally. In terms of Dr Jayasinghe there was said to be some doubt
about his evidence as there was no mention in his report although conceded it was in
his notes of the discolouration he talks of being a dusty or reddish hue which was
different to the Appellant's evidence of dark discolouration or purple colour.
[111] There was very limited evidence to support a diagnosis of CRPS and it is the case the
diagnosis appears to be made largely on the basis of exclusion. Reliance was placed
on a history that was more significant than the work that was actually performed on
the particular day.
[112] It was conceded that the Regulator's submissions left the unsatisfactory position of
being unable to explain why the Appellant continues to complain of the symptoms
and there is not any dispute she had sought and obtained medical treatment after
29 June 2014.
Appellant
[113] The Appellant provided limited oral submissions following the close of evidence,
later providing written submissions and with the approval of the Commission and the
Regulator's further submissions in reply were provided on 28 April 2015.
Appellant's Oral Submission - 23 January 2015
[114] In the application for compensation the Appellant indicated there were injuries to the
back, neck and shoulder and they occurred over a period of time with the symptoms
first noticed on 4 May 2014 with the injury reported to her Manager on 6 May 2014.
The task said to have contributed to the injury was the lifting of 20 cartons of cask
wine (each carton weighed 17 kilograms) after which she was buggered and her arms
were heavy. There was no evidence of any prior or pre-existing complaints or
applications for compensation.
-- 19 of 31 --
20
[115] On the initial consultation with Dr Walsh she mentioned a burning pain in her right
shoulder and whilst not given any medication was placed on light duties. She
continued to see Dr Walsh because he was the doctor that the Insurer or employer
were funding for her treatment but became dissatisfied with him and decided to attend
Dr Chye. A claim for compensation had been accepted for an injury described as
being a muscle strain of the neck, upper back and both shoulders.
[116] The Appellant's position regarding the event of 4 May 2014 and of the days following
was consistent with the evidence given in the Commission. On 14 May 2014 she had
seen both Dr Walsh and Dr Chye because of concerns around her ongoing pain not
improving and on 23 May 2014 was observed at the Prince Charles Hospital and
discharged to Dr Chye's care. On 23 May 2014 consistent with other doctors opinions
there was no neurological features to explain the situation.
[117] On 18 June 2014 following Dr Halliday's examination and the MRI findings, the
Insurer knew that the best treatment mechanism at that point in time was to undergo
a rapid increase in a physiotherapy program and also there might be a psychological
overlay. Dr Chye accepted that the 19 June 2014 ultrasound of the right shoulder
demonstrated a tear in that shoulder.
[118] On the matter of medical certificates, Dr Chye had provided numerous certificates
including one that certified the Appellant completely unfit for work or study from
7 August 2014 to 7 October 2014. This had some bearing on the test in Colbran v
Workers' Compensation Board of Queensland4 around the incapacity to return to
employment or another type of employment. Dr McKenzie continued to provide
medical certificates up to March 2015 which indicated she was unfit for work and
entitled her to benefits from Centrelink.
[119] Dr Jayasinghe, in evidence, observed a discolouration of the right forearm of a
reddish hue and explained the differences between CRPS-1 and CRPS-2.
Dr Halliday's evidence seemed to focus on nerve involvements and with CRPS,
which was not simply the case because there are two types of CRPS, one of which
has no nerve involvement. There were differences in the medical evidence around
the diagnosis of CRPS from each of the Specialists.
[120] The decision of the Insurer to terminate the benefits on 29 June 2014 was made at a
time when the Appellant required further medical treatment including referral to a
pain management clinic. She continued to demonstrate through medical certificates
she was unfit for her usual occupation and on that basis the decision to terminate
benefits were wrong.
Appellant's Written Submissions - 16 February 2015
Introduction
[121] The submission initially went to the application for compensation filed on
19 May 2014, the acceptance of the claim, review of the Appellant's ongoing
entitlement and the ceasing of the claim on 29 June 2014 because of the Appellant's:
4 Lee Colbran v Workers' Compensation Board of Queensland (1996) 152 QGIG 1180
-- 20 of 31 --
21
incapacity because of the work-related injury had stopped; and
medical treatment was no longer required to treat the work-related injury.
[122] The Regulator, on 6 August 2014, confirmed the Insurers decision to terminate the
entitlement to compensation. The decision acknowledged the Appellant had an
entitlement for compensation under s 32 of the Act but found no "medical evidence"
of an ongoing incapacity for work beyond 29 June 2014.
[123] The Appellant remains unfit for work and/or study and in need of further medical
treatment. The Appellant says that in addition to the work-related injury she has
developed CRPS which has diminished her capacity to return to work and requires
pain management treatment.
Issues for Determination
[124] The Commission needs to determine whether the Appellant's incapacity for the
work-related injury stopped when the Insurer ceased her benefits as at 29 June 2014.
[125] The Appellant submits that if her incapacity for the work-related injury had not
stopped by 29 June 2014 the Appeal must be allowed. If there is a finding against
the Appellant and the decision is to cease weekly benefits, then it still must be
determined whether further medical treatment beyond 29 June 2014 was likely to
improve her injury.
[126] If the Appellant's argument is accepted the Commission must set aside the
Regulator's decision and substitute a new decision effective from 29 June 2014.
Evidence
[127] The capacity of the Appellant for work in relation to s 144A of the Act relies on the
evidence of Drs Chye and McKenzie.
[128] Dr Chye accepts that at 29 June 2014 the injury was ongoing and as such she was
unable to return to her usual occupation. Similarly Dr McKenzie says that from
September 2014 when he commenced treating her for the work-related injury, she
remains unfit for work or study.
[129] In relation to s 144B of the Act, the Appellant relies upon the evidence of Drs Chye
and Halliday who both agreed that further medical treatment was necessary to treat
the work injury at the date the claim was ceased.
[130] Similarly Drs McKenzie, Halliday and Jayasinghe all said that medical treatment by
way of referral to a multi-disciplinary Pain Clinic was, and still is, required for the
management of her injury.
Legal Submissions
[131] The Appeal raises two questions. The first question which arises from s 144A of the
Act is whether the incapacity because of the work-related injury had stopped as at
29 June 2014 and the second question that arises from s 144B of the Act is whether
further medical treatment was likely to improve the Appellant's injury.
-- 21 of 31 --
22
[132] In relation to capacity, the Regulator relied upon Colbran v Workers' Compensation
Board of Queensland5 where de Jersey P cited with approval the judgement of
McTiernan J in Thompson v Armstrong & Royce Pty Ltd6 that an injury results in an
incapacity for work when it takes away or diminishes the power of the worker to earn
wages in some suitable employment. The employment is not necessarily the
employment at the time of injury but any employment on the open labour market.
Work-related Injury - OPT 4 and 6 May 2014
[133] The Appellant on 4 May 2014 was undertaking her normal duties which involved
serving customers and restocking the store with cartons of beer and wine (bottles and
casks). She says the injury occurred over a period of time and she first noticed
symptoms on 6 May 2014 at which time she reported the pain to the employer. The
Insurer accepted liability for the claim as at 6 May 2014.
[134] The Appellant described in significant detail her work duties from 4 to 6 May 2014
which were set out in full in pages 5 to 8 (inclusive) of the written submissions. The
evidence included references to:
restocking shelves;
product restocked - beer and wine - bottles and casks;
duties 4, 5 and 6 May 2014;
weight of cartons - 17 kilograms;
areas stocked - coldroom - warm area;
feeling buggered - arm felt heavy - sore muscles;
resting at home;
feeling burning pain in middle of the shoulder when lifting wine; and
other duties performed - including the cash register.
[135] Dr Walsh, whilst placing lifting restrictions on the Appellant, continued to have her
attend for work although it was noted he did not give evidence in the proceeding nor
were his medical certificates produced.
[136] The Appellant, in the first two weeks of her injury, was not allowed to change treating
doctors or she would have to pay for appointments. When given no time off by
Dr Walsh, she contacted her regular doctor (Dr Chye) who on 22 May 2014
diagnosed her with "muscle strain neck upper back and both shoulders" which he
said was caused by lifting cartons at work on 4 May 2014. Whilst at Dr Chye's
practice on 23 May 2014 she reported significant pain and was transported by
ambulance to the Prince Charles Hospital and assessed in emergency with "upper
thoracic back pain". She was discharged on the same day with a medical certificate
for five days off work.
5 Lee Colbran v Workers' Compensation Board of Queensland (1996) 152 QGIG 1180
6 Thompson v Armstrong & Royce Pty Ltd (1950) 81 CLR 585
-- 22 of 31 --
23
[137] Thereafter Dr Chye certified her as unfit for her usual occupation and in need of
medical treatment as follows:
Date Capacity - Not able to Work Requires Medical Treatment
23 May 2014 23/5/14 - 26/5/14 23/5/14 - 26/5/14
2 June 2014 28/5/14 - 02/6/14 28/5/14 - 02/6/14
11 June 2014 11/6/14 - 18/6/14 10/6/14 - 18/6/14
24 June 2014 24/6/14 - 27/6/14 24/6/14 - 27/6/14
[138] On the instruction of the Insurer, the Appellant attended Dr Halliday for an
independent medical examination and report. He ordered an MRI of the cervical and
thoracic spine with the results coming back as normal. Dr Halliday provided a
written opinion which said that despite the radiological findings there were elements
of a "cervical strain" found on examination. He was of a view there was no evidence
of a shoulder injury as the medical scapula burning pain was most likely referred pain
of a spinal origin. A rapid increase in the Appellant's physiotherapy was
recommended. Despite the Insurer's letter of instruction and the Appellant's
complaint of severe pain, no studies were ordered for either shoulder.
[139] On 19 June 2014 prior to the result of the ultrasound being known, Dr Chye in
response to an approach by the Insurer to review Dr Halliday's report on whether he
agreed there was no ongoing work injury, advised "No" indicating she needed
physiotherapy and a return to work program. The ultrasound of the right shoulder
identified a slight flattening of the borstal surface of the subscapularis tendon
consistent with a small partial thickness tear.
[140] The Insurer in ceasing the entitlement to compensation preferred the orthopaedic
opinion of Dr Halliday to Dr Chye. This decision was wrongly made as Dr Halliday
made no comment on the Appellant's capacity to work whereas Dr Chye as the
treating doctor issued medical certificates in two formats of an ongoing work-related
injury and the need for further treatment. In relation to medical treatment,
Dr Halliday identified the need for a rapid increase in physiotherapy yet five days
later the Insurer decided to cease the claim for medical treatment which was without
foundation.
Work-related Injury
[141] The Appellant gave evidence of the level of incapacity from mid-May to July 2014
which included the discolouration of the right hand and a burning sensation, not just
isolated to her right shoulder. At the time of conducting his examination, Dr Halliday
conceded that he:
was not thinking of the diagnosis of CRPS;
did not visualise any discolouration or colour change;
did not test for muscle wasting in either shoulder; and
made no enquires about:
sweating in either hand;
whether burning pain had changed; and
whether there were any tremors or spasms.
[142] Dr Halliday opined the CRPS usually took weeks or months to develop.
-- 23 of 31 --
24
[143] The Appellant first saw Dr McKenzie on 28 July 2014 and he gave evidence
regarding her presentation which demonstrated features of CRPS. Initially he had
referred her to a Physiotherapist and Physiologist (on 5 September 2014) followed
by a referral to Dr Jayasinghe (on 31 October 2014). On examination Dr Jayasinghe
formed the impression that the Appellant's symptoms were due to RSD which saw
him prescribe medication and suggest a referral to a Pain Clinic.
[144] Dr Halliday was critical of Dr Jayasinghe's diagnosis giving evidence that he thought
he had made a presumptive diagnosis. The appropriate speciality for the purpose of
diagnosing RSD was a Neurologist which was the position adopted by Dr McKenzie
who had made the referral to a Neurologist rather than an Orthopaedic Surgeon. The
criticism of Dr Jayasinghe by Dr Halliday cannot be maintained.
[145] The weight of the medical evidence supports a finding that the Appellant did suffer
an injury over a period of time from 4 to 6 May 2014 namely a strain of the right
shoulder, cervical and thoracic spine which has developed into CRPS (non-
neurological). It is not in issue for the Appeal that an injury was suffered in the
course of employment from 4 to 6 May 2014.
Does the Appellant have an incapacity for work?
[146] The question of incapacity is determined by whether the injury has taken away or
diminished the power of a worker to earn wages in some form of suitable
employment. The nature of a worker's injury does not define a capacity for work.
[147] Dr Halliday, upon whom the Regulator relies regarding capacity, neither in his report
or evidence commented on the Appellant's past or current capacity for work. Dr Chye
from the date of the cessation of the claim had continued to issue generic medical
certificates which certified her as unfit for her usual occupation. Dr McKenzie had
also certified her as unfit for her normal work through until February 2015.
[148] The weight of medical evidence supports a finding that because of symptoms arising
from the initial work injury, there is an ongoing incapacity for work beyond
29 June 2014.
Does the Appellant require medical treatment beyond 29 June 2014?
[149] Dr Halliday, in the report to the Insurer (dated 18 June 2014), stated the Appellant
required a "rapid increase in her physiotherapy program" and he agreed with
Dr Jayasinghe's plan, refer her to a public hospital Pain Clinic. On 19 June 2014
Dr Chye recommended physiotherapy and a return to work plan. Dr McKenzie said
the Appellant had and requires medical treatment for CRPS and in addition he
arranged physiotherapy and physiology treatments on and after 5 September 2014.
The Appellant has self-funded both Physiotherapy and Chiropractic treatments from
early July 2014 until January 2015.
[150] The weight of medical evidence supports a finding that the Appellant has and does
require medical treatment and hospitalisation for the management of her injury
beyond 29 June 2014.
-- 24 of 31 --
25
Order
[151] The Appellant submitted that the Commission should order as follows:
the Appeal be allowed;
the Regulator's decision of 6 August 2014 be set aside; and
the Commission substitute a new decision that the Appellant be entitled
under the claim for compensation to the payment of weekly
compensation, medical treatment, hospitalisation and other expenses
beyond 29 June 2014.
Regulator Reply - 27 February 2014
[152] It was not disputed that the Appellant had an incapacity for work and a need for
further treatment beyond the day of cessation of benefits. The issue is one of
causation arising from the nominated work. It was not correct that Dr Halliday
considered the need for further medical treatment or the referral to a Pain Clinic arose
from the nominated work event.
[153] It was wrong to characterise the injury having occurred over a period of time from
4 to 6 May 2014 with the Regulator relying upon the following evidence in the
Appellant's cross-examination:
"Okay. All right. So we just want to clarify this, that what we're talking about
here in terms of potentially having caused this injury and what you see as the
root of this is that work over about half an hour with those casks of wine on the
4th of May; is that right? - Yeah, yeah, and - yeah, yep." [Transcript p. 1-69]
[154] The Appellant's evidence of having "attempted" some lifting on 5 and 6 May 2014
but was unable to proceed due to pain was consistent with being a symptom rather
than a cause. The reference to pain whilst dealing with six packs of beer occurred
after her visit to the doctor with an existing complaint.
[155] There was a complete mischaracterisation of Dr Halliday's evidence to assert he
agreed that Neurologist is the appropriate speciality for diagnosing RSD or CRPS in
preference to an Orthopaedic Surgeon. The appropriate specialist was a Pain
Specialist.
[156] The evidence of Dr McKenzie should not be preferred to that of an Orthopaedic
Surgeon to the extent he relied on the ultrasound of 24 June 2014 that was
subsequently discredited by the MRI. His evidence with regards to the triggering of
CRPS by doing repetitive work after her shoulder had been injured on 4 May 2014
was not helpful as the Appellant had not continued with repetitive lifting work after
4 May 2014.
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26
Evidence of Dr Jayasinghe
[157] In the Regulator's previous written submissions it was noted they were prepared prior
to Dr Jayasinghe giving evidence and it was apt to make some further comments:
the report of Dr Jayasinghe (dated 31 October 2014) contained no
reference to him observing clinical signs of CRPS however in his oral
evidence he asserted having seen discolouration. The discolouration
could not have been significant if it had not been included in his report.
The discolouration described did not match the Appellant's description
of purple therefore the relevance must be questionable;
Dr Jayasinghe was quite uncertain about aspects of CRPS and was unable
to answer a number of questions; and
Dr Jayasinghe agreed in cross-examination that if the Appellant had
sustained a soft tissue injury to her shoulder on 4 May 2014, it is likely
she would have pain on that date. The evidence is she did not.
Appellant's Further Reply - 28 April 2015
[158] The submission addressed questions of relevance raised in terms of Dr Jayasinghe's
evidence around issues including:
the discolouration observed but not included in his report;
the discolouration observed on 31 October 2014 did not match the
Appellant's description; and
Dr Jayasinghe was said to have been quite uncertain about aspects of
CRPS.
[159] The Appellant's evidence was that her arm felt heavy at the end of her shift on
4 May 2014 and the following day when attempting to lift a carton of bottled wine
she felt pain in her shoulder and the day after when again attempting to lift a similar
carton noticed burning pain.
[160] It was irrelevant to acknowledge Dr Jayasinghe's evidence on whether the Appellant
ought to have had pain on 4 May 2014 as it was not an issue as the Appellant had not
given evidence of not having pain on that date. The liability for the claim is as at
6 May 2014.
Conclusion
Matters for Determination
[161] The matters for determination was whether the Appellant had an entitlement in terms
of the following sections of the Act:
s 144A - whether there was an entitlement to weekly payments of
compensation beyond the cessation of her claim for compensation on
29 June 2014; and
s 144B - whether there was an entitlement to the payment of medical
treatment, hospitalisation and expenses beyond the cessation of her claim
for compensation on 29 June 2014.
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Matters of Fact
[162] There were a number of factual circumstances not subject of dispute that included:
the Appellant was a "worker" under s 11 of the Act;
on 19 May 2014 the Appellant lodged an application for compensation
identifying the following:
Nature of injury - pain in shoulder/neck/back;
Part of body injured - back/neck/shoulder;
Where injury sustained - BWS Nundah;
Injury over a period of time, symptoms first noticed - 6 May 2014;
How was injury sustained - lifting cask cartons into coldroom; and
Activity at time of injury - filling casks;
on 19 May 2014 the Appellant completed an Injured Worker Statement
Form which stated:
When did injury occur - over a period of time starting 4 May 2014
at approximately 5.00 pm;
Where did the injury occur - back of the store/coolroom;
In your opinion, what was the cause of the injury - lifting cask
cartons into coolroom; rearranging them in back of store;
Provide a detailed description of the location of the injury and the
symptoms - shoulder pain burning sensation 24 hours a day - neck
pain - causing headache in back of skull - back pain parallel with
shoulder blade burning sensation 24/7;
Was the injury reported at the time it occurred and who was it
reported to? - I felt tired on the Sunday 4 May 2014 - there was no
pain until the next day - I assumed it was working hard until the
pain continued on day 2;
the Insurer on 23 May 2014 allowed the claim for compensation for an
injury described as "Muscle strain neck, upper back and both shoulders".
The liability commenced on 6 May 2014 and covered both weekly
payments of compensation and medical treatment costs; and
the worker had sustained a personal injury arising out of, or in the course
of her employment for which her employment was a significant
contributing factor;
on 24 June 2014 the Appellant was advised in writing that following a
review of her ongoing entitlement to compensation, her "entitlement to
compensation will cease as at 29 June 2014, in accordance with s 144A
and s144B of the Act". The decision maker relied upon extracts of
Dr Halliday's Report (dated 18 June 2014) where they advised:
"Ms Embleton presents with an unusual compilation of symptoms.
While there may be elements of a cervical strain the level of
disability and clinical presentation far outweighs any demonstrable
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pathology. An MRI of the cervical thoracic spine was arranged for
completeness. This is normal.
…
I cannot identify any orthopaedic diagnosis of work injury that is
ongoing. An MRI was arranged to identify any musculoskeletal
pathology. This is normal."
The report had also been sent to the Appellant's treating doctor (Dr Chye)
who agreed there was no orthopaedic diagnosis of injury but did not agree
there was no ongoing work injury. Dr Halliday's opinion was preferred
over Dr Chye's due to his expertise in the field of orthopaedics.
Incapacity
[163] The Appellant's claim of an ongoing medical incapacity beyond 29 June 2014 was
supported by medical evidence provided in the proceedings by three medical
practitioners being Dr Chye, Dr McKenzie and Dr Jayasinghe, all of whom diagnosed
her with a medical condition rendering her unfit to undertake normal duties.
[164] Dr Chye (of the three practitioners) treated the Appellant closer to the time of injury
and issued a medical certificate on 22 May 2014 for a diagnosed muscle strain to the
neck, upper back and both shoulders and continued to issue medical certificates
beyond the ceasing of the compensation claim because her condition had not
improved and she was not ready to return to work.
[165] Dr McKenzie's first contact with the Appellant regarding the injury was
5 September 2014 where she sought treatment for a right shoulder said to have been
injured when lifting heavy cartons at work. He was aware at the time of the previous
medical investigations performed and of her having seen an Orthopaedic Specialist.
At the time he suggested she "may" have CRPS caused by the repetitive work
undertaken by her at BWS. Dr McKenzie also provided certification that the
Appellant was unfit for normal duties after the cessation date of the compensation
and into 2015.
[166] Dr Jayasinghe examined the Appellant on the one occasion (on 31 October 2014)
having been referred to him by Dr McKenzie who had indicated she "may" have
CRPS. Dr Jayasinghe in his report of 31 October 2014 indicated the following:
"On examination there was some distal weakness in the smaller muscles of the
right hand. The deep tendon reflexes were symmetrical. There was no sensory
loss.
Nerve conduction studies were performed in the right upper limb and there was
no evidence of a carpal tunnel syndrome."
[167] He formed the "impression" that her symptoms were due to RSD, started her on
Endep and suggested she be referred to the Pain Clinic at the Nambour Hospital.
[168] I am satisfied on the evidence of the three medical witnesses called by the Appellant
that she suffered an incapacity for work beyond 29 June 2014 and at the time of
hearing it was likely she continued to suffer that incapacity.
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29
[169] Dr Halliday, for the Regulator, only days before the cessation of the compensation
claim recommended a rapid increase in her physiotherapy program, supporting an
incapacity but not necessarily work-related.
Was the Appellant's employment causative of her incapacity beyond 29 June 2014?
[170] The accepted compensatable injury was that of a muscle strain to the neck, upper
back and both shoulders being orthopaedic in nature. On 18 June 2014 Dr Halliday
provided a report that in part responded to specific questions that included:
"Do you feel that the stated mechanism of injury on 04 May 2014 was a
significant contributing factor to the onset and continuation of this
worker's symptoms?
No. It is extremely unlikely that the mechanism described on 04, 05 and
06 May 2014 was significant to produce such symptoms and in fact the
continuation of these symptoms in the absence of all work is highly unusual.
If so, what is your expected duration of this worker's injury?
I cannot identify any orthopaedic diagnosis of work injury that is ongoing. An
MRI was arranged to identify any musculoskeletal pathology. This is normal."
[171] Dr Chye the Appellant's treating General Practitioner on reviewing Dr Halliday's
report informed the Insurer on 19 June 2014 that he agreed there was no orthopaedic
diagnosis of the work injury that was ongoing.
[172] In my view the medical evidence in respect of the compensatable muscle strain injury
is that there was no orthopaedic type injury contributing to the Appellant's incapacity
for work beyond 29 June 2014.
[173] The Appellant in terms of incapacity relies on RSD/CRPS as being causative of the
continuing symptoms that have arisen as a consequence of the initial compensatable
injury suffered at work in the 4 to 6 May 2014 period therefore rendering an ongoing
incapacity for work.
[174] The first medical reference to CRPS was from Dr McKenzie who in a referral letter
to a Physiotherapist on 5 September 2014 noted the Appellant "may" have CRPS.
Dr McKenzie in the referral to Dr Jayasinghe again used the terminology "may" in
respect of the Appellant having CRPS. Dr Jayasinghe following an examination
provided a report to Dr McKenzie that he had formed the "impression" that the
Appellant's symptoms were due to a RSD.
[175] Dr Halliday in his evidence effectively discarded CRPS as an issue at the time of his
examination as four weeks post injury was too early to consider such a diagnosis,
relying on the "chronic" aspect of CRPS as implying a long-term situation.
Dr Halliday gave further evidence that at the time of his examination of the Appellant
(on 5 June 2014) there were no clinical features of RSD/CRPS present and it was
highly unlikely the CRPS would have arisen from the diagnosed muscular strain.
[176] On the issue of diagnostic testing that could rule CRPS in or out there was a level of
consistency from the medical practitioners that no such test existed and a diagnosis
would be made based on the history and clinical examination of a patient. No such
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consistency though was evident in terms of the type of injury a person would likely
suffer prior to a diagnosis with Dr Halliday suggesting CRPS was an unfortunate
complication of severe trauma after a major injury where a limb might be crushed or
a velocity injury with high energy from a motorcycle accident. Dr Jayasinghe on the
other hand believed CRPS could develop from a mild injury including a "prick".
Dr McKenzie gave evidence that the repetitive work undertaken by the Appellant at
the time of her injury may have led to CRPS.
[177] In determining whether CRPS was causative of the Appellant's ongoing incapacity
beyond 29 June 2014 the Commission in effect had to prefer the medical evidence of
either a Neurosurgeon or an Orthopaedic Surgeon in the circumstances where it was
common ground that a Pain Specialist would have been the appropriate Medical
Practitioner to diagnose and treat the condition however there was no appearance in
the proceedings of someone of that ilk.
[178] In the case of Dr Jayasinghe he formed an impression that the injury which the
Appellant suffered to the shoulder could result in RSD. The difficulty with
Dr Jayasinghe's position was his reliance on the term "impression" which is far from
being definite particularly when one looks at the meaning of "impression" in the
Australian Concise Oxford Dictionary which states:
"…4. notion, (vague or mistaken) belief, impressed on the mind, (that is my
impression; I was under the impression, had the impression, that)…"
[179] Dr Halliday whilst he described the likelihood of CRPS arising from muscular strain
as highly unlikely, his other evidence around CRPS was more beneficial particularly
in relation to the type of injury preceding such a condition and the timeliness of the
onset of CRPS in the case of the Appellant.
[180] In the course of cross-examination Dr Jayasinghe was unable to answer a number of
questions around CRPS that included:
Is it very unlikely that CRPS would arise out of something as minor as a
muscle strain?;
Is it the case, ordinarily that CRPS symptoms tend to come on sometime
after injury - as in more likely weeks and months?;
Would it be unusual that CRPS could arise from an event within a week
or two of the initial event?; and
If CRPS arose out of events that occurred on 4 May 2014 would it be more
likely some months later that the symptoms would have arisen?
The failure of Dr Jayasinghe to answer the abovementioned questions brought to the
fore the level of knowledge and expertise held by him in respect of CRPS.
[181] On consideration of the medical evidence, I have not been satisfied to the requisite
standard of proof that it has been established that the Appellant has as a result of the
work-related injury of 6 May 2014 suffered an ongoing injury beyond 29 June 2014
in the form of CRPS that is compensatable pursuant to the Act. In reaching this
conclusion I have preferred the medical evidence of Dr Halliday to that of
Dr Jayasinghe and also the evidence of Dr McKenzie as it related to CRPS.
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[182] I accept that the Appellant had at 29 June 2014 and beyond that date had a medical
condition that in all likelihood rendered her unfit to perform work of a nature
undertaken by her prior to 4 May 2014. However it had not been established that the
condition was as a consequence of a work-related injury nor that there was a temporal
link to her employment.
Finding
[183] On consideration of the evidence, material and submissions before the proceeding, I
make the following findings:
the Appellant does not have an incapacity as a result of a work-related
injury that would provide an entitlement to weekly payments of
compensation; and
the Appellant not having an entitlement to weekly payments of
compensation and in the absence of medical evidence that further
medical treatment was required for an ongoing work-related injury there
is no entitlement for the payment of medical treatment, hospitalisation
and expenses.
Orders
[184] I make the following orders:
the Appeal is dismissed;
the decision of Simon Blackwood (Workers' Compensation Regulator)
dated 6 August 2014 is confirmed; and
the Appellant is to pay the Regulator's costs of and incidental to this
Appeal to be agreed or failing agreement to be the subject of a further
application to the Commission.
[185] I order accordingly.
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Official source: https://www.sclqld.org.au/caselaw/QIRC/2015/096