Broughton v Q-COMP [2009] QIRC 92 (2009) 190 QGIG 187

[Extract from Queensland Government Industrial Gazette, dated 13 March, 2009, Vol. 190, No. 10, pages 187-189] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers' Compensation and Rehabilitation Act 2003 - s. 550 - appeal to commission Tristan Broughton AND Q-COMP (WC/2008/73) COMMISSIONER FISHER 27 February 2009 Appeal - Termination workers’ compensation payments – Work related injury – Issue date payments ceased - Evidence - Second opinion - Medical evidence orthopaedic surgeon accepted - No ongoing signs of injury - Decision Q-COMP set aside - Date of termination of entitlement extended. DECISION Tristan Broughton has appealed against the decision of Q-COMP confirming the decision of WorkCover Queensland (WorkCover) to terminate weekly workers' compensation payments from 5 June 2008. Mr Broughton sustained a work related injury to his right shoulder on 15 February 2008. An application was made to WorkCover 10 days later and was accepted. Compensation was paid under the Workers' Compensation and Rehabilitation Act 2003. Mr Broughton has been fit to carry out light duties since 20 February 2008 and in fact performed such light duties at the place of employment where he suffered the injury until he was laid off on 30 April 2008. Mr Broughton has been unable to find employment since that time in large part, according to his evidence, because of his shoulder injury. As the only issue for determination is whether the weekly compensation payments should have ceased on 5 June 2008 it is unnecessary to consider the circumstances of Mr Broughton's injury. For completeness I will note that Mr Broughton explained in evidence that the injury occurred while Mr Broughton was assisting another employee to lift a heavy side of beef up on to a rail. As he was doing this he felt a rip in his shoulder and his arms let go. The other employee then released the carcass causing it to swing back and the bone hit him on the shoulder. Mr Broughton contended he is still incapacitated by his right shoulder and thus he should continue to be entitled to compensation. The compensation payments ceased on the basis of the opinion of an Orthopaedic Surgeon, Dr Macgroarty, and an External Medical Examiner, Dr Dillon, to whom WorkCover had referred Mr Broughton. Mr Broughton gave evidence to the Commission that he was still suffering pain in his right shoulder and had not fully recovered. He had sought a second opinion of his injury and had been referred by his General Practitioner to Dr Michael Fleming, Orthopaedic Surgeon. Mr Broughton provided a report of an MRI scan performed by a Radiologist, Dr Lim, on 12 November 2008. The report's conclusion is: "Small 0.6 x 0.3cm partial thickness articular surface tear of the supraspinatus tendon anteriorly accounting for the patient's symptoms.". Mr Broughton submitted that on the basis of this report the injury was still present and hence he should continue to receive benefits. Dr Fleming was not called to give evidence and did not otherwise provide a medical report. Q-COMP called Dr Macgroarty to give evidence. He has a special interest in shoulder and knee surgery. In addition to his oral evidence reports dated 7 May 2008 and 5 November 2008 were tendered in evidence. Dr Macgroarty examined Mr Broughton on 18 March 2008, 29 April 2008, 3 July 2008 and 8 September 2008. His initial diagnosis was subacromial bursitis with impingement of the right shoulder. At the first examination Dr Macgroarty arranged for Mr Broughton to have a MRI arthrogram of his right shoulder which involves an ultrasound guided cortisone injection into the subacromial bursa. On 29 April 2008 after reviewing the MRI scan Dr Macgroarty's diagnosis was "right shoulder muscular strain subacromial bursitis". In his first report Dr Macgroarty said that "he would expect symptoms to settle over an eight to twelve week period of time from the date of the injury". The reference to the time frame commencing from the date of injury caused some confusion to both Mr Broughton and WorkCover. Mr Broughton was of the view that Dr Macgroarty had referred to the time frame for improvement commencing from the date of review, i.e., 29 April 2008, and not the date of injury, i.e., 15 February 2008. Dr Macgroarty's second report of 5 November 2008 outlined his further reviews of Mr Broughton on 3 July 2008 and 8 September 2008. Dr Macgroarty reported that: -- 1 of 3 -- 2 "At last review in September Mr Broughton stated to me that his symptoms in regards to the right shoulder had not changed since his last review in July 2008. He still described ongoing pain with associated difficulty with heavy lifting. Clinical review on 8 September 2008 revealed a full range of movement in the shoulder with negative impingement signs. He had normal power of the rotator cuff. There was no instability of the right shoulder.". His diagnosis was of resolved right shoulder muscle strain and resolved subacromial bursitis of the right shoulder. Dr Macgroarty also clarified the 8-12 week timeframe given in his earlier report. He explained the timeframe assumed that maximum medical treatment would be instigated immediately. As this did not occur but evolved over a 1-2 month timeframe after the injury the timeframes needed to be modified. He said: "… it was reasonable to conclude that at a point two to three months after this gentleman's review in April 2008 that his work related complaint would have ceased. This timeframe would certainly fit with my review dated 3 July 2008 at which time I could find no ongoing signs of soft tissue strain or subacromial bursitis.". In his oral evidence Dr Macgroarty confirmed his opinion that Mr Broughton's work related injury had ceased as at 3 July 2008. In relation to the MRI scan performed in November 2008 which identified a tear Dr Macgroarty said the following:  The scan he had arranged in April 2008 was performed closer in time to the scan in November 2008 and the earlier scan was normal;  The initial scan was more sensitive than the later scan and any tear must be a new injury. His evidence was clear that a tear would have been picked up in the earlier, more sensitive scan if it had been present. Dr Macgroarty said his clinical examination of Mr Broughton and the normal arthrogram were consistent. He considered it highly unlikely that Mr Broughton suffered a rotator cuff tear as a result of the injury as stated and that he more likely suffered a soft tissue strain which, in Dr Macgroarty's opinion, normally settles over a two to three month period once full treatment is instigated. With respect to Mr Broughton's complaint of ongoing pain and referral of him to a pain management clinic Dr Macgroarty said he could not dispute Mr Broughton's subjective findings but objectively there was no orthopaedic diagnosis for the pain. The finding of no ongoing orthopaedic complaints had not changed between July and September 2008. The onus rests with Mr Broughton to show that his entitlement to workers' compensation weekly benefits either ceased at a later date than was determined by Q-COMP or that his entitlement to weekly benefits is continuing. In this hearing Mr Broughton has not called any evidence other than from himself. Medical evidence in relation to the scan performed in November 2008 was not called although the report was admitted without objection. That report shows a tear as described above, however, Dr Macgroarty's opinion is that it must be a new injury as it was not present in the earlier scan and that earlier scan was a more sensitive one than was conducted in November. Moreover, Dr Macgroarty's evidence is clear that as at 3 July 2008 he could not find any objective orthopaedic diagnosis for the pain or any clinical evidence of ongoing orthopaedic complaints. In the absence of any alternative medical evidence that was subject to cross-examination the Commission accepts the opinion of the Orthopaedic Surgeon who examined Mr Broughton. In particular I accept Dr Macgroarty's diagnosis of the work related injury and his opinions about when it ceased and any tear is a new injury. Based on Dr Macgroarty's evidence I have determined that Mr Broughton's work related injury ceased on 3 July 2008. As stated earlier in this decision Mr Broughton's weekly benefits ceased from 5 June 2008. Q-COMP submitted that having regard to Dr Macgroarty's reports and evidence weekly compensation should have ceased on 3 July 2008 when Dr Macgroarty could find no ongoing signs of injury. In the circumstances the Commission accepts the submission of Q-COMP. The Commission sets aside the decision of Q-COMP and substitutes another decision in the terms sought by Q-COMP as follows: "The decision of Q-COMP dated 31 July 2008 be varied and in substitution thereof the following decision 'Your entitlement to weekly payments has stopped according to s. 144A of the Workers' Compensation and Rehabilitation Act 2003. The Appellant's entitlement to weekly compensation has terminated as and from 3 July 2008'.". -- 2 of 3 -- 3 Order accordingly. G.K. FISHER, Commissioner. Hearing Details: Appearances: 2009 18 February Released: 27 February 2009 Mr T. Broughton representing himself. Mr S. Gray of Counsel instructed by Q-COMP. Government Printer, Queensland The State of Queensland 2009. -- 3 of 3 --