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Harrison v Workers' Compensation Regulator

 

[2019] ICQ 17

 

INDUSTRIAL COURT OF QUEENSLAND

 

CITATION:

Harrison v Workers’ Compensation Regulator [2019] ICQ 17

PARTIES:

SHAYNE HARRISON

(appellant)

v

WORKERS’ COMPENSATION REGULATOR

(respondent)

FILE NO:

C/2018/15

PROCEEDING:

Appeal

DELIVERED ON:

29 November 2019

HEARING DATE:

27 November 2018

MEMBER:

Martin J, President

ORDER:

The appeal is dismissed.

CATCHWORDS:

WORKER’S COMPENSATION – ENTITLEMENT TO COMPENSATION –  EMPLOYMENT RELATED INJURY, DISABILITY OR DISEASE – EMPLOYMENT SUBSTANTIAL OR SIGNIFICANT CONTRIBUTING FACTOR – TO INJURY – where the appellant had surgery on his right elbow following an injury to it in October 2014 – where the appellant was never entirely symptom-free post-surgery but was cleared to return to work – where the appellant then sustained an injury to his right elbow in February 2016 when lifting a heavy crate at work – where it was not in dispute in the Queensland Industrial Relations Commission that the appellant had suffered an injury in February 2016 – where the critical question in the Commission proceedings was whether the appellant’s employment was a significant contributing factor to his injury – where there was evidence before the Commission that the appellant’s latest injury was a “continuum” of his previous injury – where the Commission so found – where the Commission found that the significant contributing factor to the appellant’s injury in February 2016 was his underlying degenerative condition – whether the Commission erred

Workers’ Compensation and Rehabilitation Act 2003, s 32

CASES:

Australian Broadcasting Tribunal v Bond & Ors (1990) 170 CLR 321, cited

Blair v Simon Blackwood (Workers’ Compensation Regulator) [2016] ICQ 004, cited

Boyd v Q-COMP (2005) 180 QGIG 1129, cited

Carlton v Blackwood [2017] ICQ 001, cited

Croning v Workers’ Compensation Board of Queensland (1997) 156 QGIG 100, cited

Harrison v Workers' Compensation Regulator [2018] QIRC 067, related

JBS Australia Pty Ltd v Q-COMP [2013] ICQ 13, cited

Karipa v Q-Comp [2013] QIRC 161, distinguished

Newberry v Suncorp Metway Insurance Ltd (2006) 1 Qd R 519, cited

Pleming v Workers’ Compensation Board of Queensland (1996) 152 QGIG 1181, cited

Simon Blackwood (Workers’ Compensation Regulator) v Civeo Pty Ltd and Anor [2016] ICQ 001, cited

Ward v Q-COMP [2011] ICQ 33, cited

Waterford v Commonwealth (1987) 163 CLR 54, cited

APPEARANCES:

GJ Cross instructed by Patinos Lawyers for the appellant

PB Rashleigh directly instructed by the respondent

  1. [1]
    Shayne Harrison (the appellant) was employed by Woolworths Limited as an Order Picker at the Woolworths Distribution Centre at Larapinta. He claims that while employed by Woolworths he sustained an injury to his right elbow when lifting a heavy crate of milk on 25 February 2016.
  2. [2]
    The appellant had made two previous WorkCover claims before the claim the subject of these proceedings. The first was on 15 November 2010 when he struck his right elbow on shelving. The appellant returned to full duties. The second was on 23 October 2014 when the appellant suffered right epicondylitis. He had an operation for that injury on 11 March 2015. Thereafter he underwent a significant rehabilitation program and was eased back to work. The appellant was medically cleared from 5 November 2015 and returned to full duties until sustaining the injury on 25 February 2016.
  3. [3]
    The appellant’s claim for compensation was rejected by the self-insurer on the basis that the symptoms suffered on 25 February 2016 were a continuum of the earlier injury suffered in or about October 2014. The Workers’ Compensation Regulator (the respondent) confirmed the decision of the self-insurer.

The Commission

  1. [4]
    On appeal to the Queensland Industrial Relations Commission, it was not in dispute that the appellant suffered a personal injury – right epicondylitis. The controversy between the parties was whether the injury arose out of or in the course of the appellant’s employment and whether his work was a significant contributing factor.
  2. [5]
    The appellant alleged that the heavy lifting he was performing at the time of his injury was a significant contributing factor to him suffering an aggravation of his right epicondylitis.
  3. [6]
    The respondent contended that the personal injury suffered by the appellant was degenerative in nature and that such degeneration was the only significant contributing factor to any pain and discomfort suffered by the appellant in the event of 25 February 2016. Alternatively, the respondent contended that any pain and discomfort suffered by the appellant on 25 February 2016 was not as a result of any alleged lifting but was as a result of a previous injury suffered by the appellant in 2014.
  4. [7]
    The Commission dismissed the appeal.

Grounds of appeal

  1. [8]
    This is an appeal of a decision concerning s 32 of the Workers’ Compensation and Rehabilitation Act 2003 (Act). Section 32 relevantly provides:

“(1)  An injury is personal injury arising out of, or in the course of, employment if—

  1. (i)
    for an injury other than a psychiatric or psychological disorder—the employment is a significant contributing factor to the injury; or
  2. (ii)
    for a psychiatric or psychological disorder—the employment is the major significant contributing factor to the injury.

  1. (3)
    Injury includes the following—

  1. (b)
    an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation—
  1. (i)
    a personal injury other than a psychiatric or psychological disorder;
  1. (ii)
    a disease;
  1. (iii)
    a medical condition other than a psychiatric or psychological disorder, if the condition becomes a personal injury or disease because of the aggravation;

  1. (4)
    For subsection (3)(b) and (ba), to remove any doubt, it is declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation.”
  1. [9]
    The amended grounds of appeal advanced by the appellant are as follows:
    1. The Vice President wrongly concluded that the appellant’s accepted increased symptoms to his right elbow whilst lifting an 18kg crate of milk above shoulder height on 25 February 2016 were a continuum of the previous injury to the appellant’s right elbow suffered on 22 October 2014 as opposed to an aggravation of the previous injury.
    2. The Vice President wrongly concluded that the significant contributing factor to the appellant’s injury in or about 25 February 2016 was his underlying degenerative condition and the appellant’s employment was not a significant contributory factor.
    3. The Vice President wrongly concluded that as the radiological evidence did not establish an acute or new injury then there was no worsening of the appellant’s underlying degenerative condition as at 25 February 2016.
    4. The Vice President wrongly concluded that the decision of Karipa v Q-Comp[1] and the authorities referred to therein were not applicable as the MRI findings show no worsening of the appellant’s underlying degenerative condition.

The evidence before the Commission

  1. [10]
    On 23 March 2016 the appellant saw Dr Duraiswamy, a general medical practitioner. Dr Duraiswamy issued a WorkCover medical certificate stating that the appellant suffered right “elbow tennis elbow”.
  2. [11]
    On 30 March 2016 Dr Duraiswamy referred the appellant to Dr Soares, an orthopaedic surgeon. Dr Soares examined the appellant and provided a medical report on 11 April 2016. Dr Soares was unavailable to give evidence in the Commission. The appellant accordingly relied upon the evidence of Dr McEniery, an orthopaedic surgeon who had examined the appellant on 16 February 2015, before the appellant’s elbow surgery on 11 March 2015.
  3. [12]
    The self-insurer referred the appellant to Dr Steadman, an orthopaedic surgeon. Dr Steadman conducted an independent medical examination of the appellant on 29 August 2016.  He then provided a report.
  4. [13]
    The two orthopaedic surgeons were called to give evidence – Dr McEniery by the appellant and Dr Steadman by the Regulator. The appellant also relied on the evidence of Dr Duraiswamy.
  5. [14]
    In her reasons, the Vice President summarised  the evidence of each of the doctors.
  6. [15]
    Dr McEniery said that the lifting of the crate of milk above shoulder height was a significant work event associated with recurrent symptoms and he would consider that to be an aggravation of the lateral epicondylitis. According to Dr McEniery, if the previous elbow condition was settling down and improving, then the appellant probably aggravated it again rather than it being a continuum of the previous injury that the appellant sustained in 2014. Dr McEniery said that his definition of aggravation is a permanent worsening of a condition. He said that if the appellant’s symptoms had worsened and persisted then that would mean a permanent worsening of the appellant’s condition.
  7. [16]
    However, Dr McEniery agreed that Dr Steadman would have been in the better position to provide an opinion as to the condition that the appellant was suffering given that Dr Steadman saw the appellant in August 2016 and Dr McEniery had not seen the appellant since February 2015.
  8. [17]
    Dr Duraiswamy said that, since the appellant had an operation and was cleared to work completely, and then had a particular incident at work which caused severe pain, he would consider the appellant to have aggravated a pre-existing condition. During cross-examination, Dr Duraiswamy was told that Dr Steadman had obtained a repeat MRI which had found no change to the appellant’s underlying condition, and that only some post-surgical problems were identified. Dr Duraiswamy was asked whether, if the MRI showed those conditions, would he change his mind about his evidence and he responded “definitely”.
  9. [18]
    Dr Steadman referred to an ultrasound taken on 24 March 2016 and an MRI of the appellant’s right elbow from 31 August 2016. Dr Steadman said that he arranged for a new MRI to be undertaken to see if there was any evidence of a new or acute injury based upon the scanned changes. That MRI showed post-surgical changes and some mild tendinosis. Dr Steadman agreed that, if the appellant was performing full duties during the period of 5 November 2015 to 25 February 2016 while at 90% or 95% of his capacity and, following an event on 25 February 2016, he was unable to work, it showed a worsening of his condition. However, Dr Steadman said that the impact of activities and personal needs on the appellant, and the various other things that the appellant reported to him, were just consistent with an unsuccessful operation outcome. 
  10. [19]
    Dr Steadman’s evidence included the following observation:

“Shayne Harrison has a painful right elbow. I arranged for him to have an MRI to substantiate the current complaint. It does sound like one medical continuum in terms of symptoms as he never became symptom free. At least in retrospect the medical certification would suggest he was given a clearance to return to work though.”

  1. [20]
    In responding to specific questions asked of him by the self-insurer, Dr Steadman said:

“4. Is this diagnosis consistent with the mechanism of injury? Is work a significant contributing factor to Mr Harrison's injury?

There is no doubt that this condition can continue to cause symptoms with activity.

5. Is the current work related incapacity due to any underlying pre-existing condition or is it a direct result of the work related incident of 25.02.16?

The current condition more likely represents one of an ongoing medical continuum from the original injury and this likely means that he is unsuitable for his current position.

6. Has any work related injury resolved or reached maximum medical improvement?

In my opinion he has reached maximum medical improvement and his problem is activity related. It would seem inevitable that he is not able to continue with heavy employment.”

  1. [21]
    Dr Desmond Soares provided a medical report which was admitted by consent. The appellant relied upon the following opinion of Dr Soares:

“I do not believe that he can continue at his age to do such heavy manual work without aggravating his lateral epicondylitis.”

The findings in the Commission

  1. [22]
    At paragraph [69] of her reasons, the Vice President “accept[ed] that the Appellant did experience increased symptoms in his right elbow as a result of lifting whilst at work.”[2]
  2. [23]
    The Vice President then made the following observations:

“[77] As outlined previously the issues for determination in this appeal is whether the injury to the Appellant on 25 February 2016 arose out of, or in the course of his employment, and whether the Appellant’s employment was a significant contributing factor to the injury.

[78] The most compelling medical evidence is that of Dr Steadman. Dr Steadman examined the Appellant on 29 August 2016 (i.e. six months after the event) and provided a medical report dated 8 September 2016. Dr Steadman had before him both the ultrasound of 24 March 2016 and the MRI taken on 31 August 2016. That MRI showed no deterioration in the Appellant’s underlying condition. What the MRI showed, according to Dr Steadman, was post surgical changes and some mild tendinosis. Dr Steadman referred to them as ‘post surgical’ results. I thus accept then that there was no worsening of the Appellant's underlying degenerative condition as at 31 August 2016.

[82] In the circumstances, I prefer the medical evidence of Dr Steadman, Orthopaedic Surgeon. Dr Steadman’s medical report of 8 September 2016 was clear i.e. the Appellant’s current condition ‘more likely represents one of an ongoing medical continuum from the original injury and this means that he is unsuitable for his current position’. Dr Steadman had before him both the ultrasound taken on 24 March 2016 and the MRI of 31 August 2016 when providing this opinion. Neither of the other medical witnesses had the MRI before them when giving their opinions although Dr Duraiswamy indicated that if the MRI showed the results relied upon by Dr Steadman, he would ‘definitely’ change his opinion.

[83] If the injury is a continuum of a previous injury then the decision of Karipa v Q-Comp and the authorities referred to therein do not assist. Had the Appellant simply suffered an aggravation or an exacerbation of his degenerative condition whilst performing his duties on 25 February 2016 then those authorities would be relevant. The MRI, according to Dr Steadman, showed no worsening of the Appellant’s underlying degenerative condition. The injury to the Appellant was a continuum of his previous injury in 2014 for which he underwent surgery on 11 March 2015.”

Ground 1

  1. [24]
    The appellant contends that the Vice President’s satisfaction that he had suffered pain or injury on 25 February 2016 must lead to the conclusion that an aggravation of his underlying degenerative condition had occurred. In effect, he argues that there was no evidence for the Vice President to find that the appellant’s injury on 25 February 2016 was a “continuum” of his previous injury.
  2. [25]
    As observed in Carlton v Blackwood,[3] it is indisputable that a finding of primary facts, where there is no evidence to support that finding, is an error of law.[4] But provided that there is some factual basis for a finding, there can be no error of law on the “no evidence” ground.[5] “[T]here is no error of law simply in making a wrong finding of fact.”[6]
  3. [26]
    The appellant’s submissions can be traced to the dissonance that has occurred in these proceedings between the concept of “aggravation” under the Act and use of the same term in a medical context. If the reasoning in other decisions of this court is followed, the notion of aggravation in the sense of establishing the existence of an injury for the purposes of s 32(3) of the Act does not necessarily require “permanent worsening of a condition”.[7] But that seems to be the medical test that was applied by Dr McEniery when he discussed whether the appellant’s injury was an aggravation. Dr Duraiswamy appeared to reason similarly.
  4. [27]
    Dr Steadman’s observations suggest that his use of the word “continuum”, which does not appear in the Act, implies that a certain injury is attributable to a previous injury. It was not used in the sense proposed by the appellant to mean that there is no appreciable change in symptomology. 
  5. [28]
    The respondent submits that it was not disputed in these proceedings that an increase in symptoms or the activation of pain could constitute a de facto injury for the purposes of the Act. However, the respondent contends that the existence of a personal injury is not determinative of whether there is an injury within the meaning of s 32 of the Act. The injury, be it an aggravation or otherwise, must arise out of, or in the course of, employment and the employment be a significant contributing factor to the injury.
  6. [29]
    The distinction drawn by the Vice President between “continuum” and “aggravation” appears to derive from the same distinction drawn by the medical witnesses. But it must be remembered that the Vice President’s comments are preceded by an acknowledgment that the issues for determination on appeal were “whether the injury to the Appellant on 25 February 2016 arose out of, or in the course of his employment, and whether the Appellant’s employment was a significant contributing factor to the injury.” She had already accepted that an injury took place. And the respondent had submitted that any pain and discomfort suffered by the appellant on 25 February 2016 was as a result of his degenerative condition or a previous injury. This was the context in which references to a “continuum” and “aggravation” were made.
  7. [30]
    There was medical evidence before the Vice President upon which she could make a finding that the appellant’s injury was a “continuum” in the sense that it arose from complications associated with the original injury. This finding did not affect the Vice President’s acceptance that an injury had occurred but was relevant to the question of causation.
  8. [31]
    Ground 1 fails.

Ground 2

  1. [32]
    Whether employment or work is a significant contributing factor to an injury is a question of mixed fact and law for which a tribunal can have regard to the medical evidence led.[8]
  2. [33]
    The Vice President considered the question as follows:

“[84]  The Regulator submits that the real issue is that the Appellant was unsuited to the employment that he was doing because of his elbow condition i.e. the underlying degenerative condition and the earlier injuries to his elbow. That, according to the Regulator, is the significant contributing factor and the only significant contributing factor in the Appellant’s case. Dr Soares was of a similar opinion as to the unsuitability of the Appellant for the type of employment he was performing at the time of the event.

[85] I do not dispute that there is a proximity between the onset of pain and the Appellant’s work duties. The Regulator accepted that the Appellant suffered an increase in his symptoms at work on 25 February 2016 as there was no evidence to the contrary. The issue is whether the work activity was a significant contributing factor to that exacerbation of the pain.”

  1. [34]
    The Vice President then held at paragraph [86] that:

“In the circumstances I find that the injury suffered by the Appellant, whether it be on 25 February 2016 or otherwise, is a continuum of the previous injury to the Appellant’s right elbow. The significant contributing factor to the Appellant’s injury in or about 25 February 2016 was his underlying degenerative condition. Whilst the Appellant submits that he suffered significant debilitating symptoms on 25 February 2016 whilst lifting the crates of milk above or around shoulder height, such debilitating symptoms did not cause the Appellant to access any medical treatment for these symptoms until almost one month after the event. This I find most unusual.”

  1. [35]
    Like the other grounds of appeal, the appellant contends, in effect, that there was no evidence to ground the Vice President’s finding.
  2. [36]
    In Croning v Workers’ Compensation Board of Queensland[9] it was held that employment must be the real or effective cause of the injury, not merely the setting in which it occurred. The critical passages of that decision are in the following terms:

“Now but for those work conditions, this particular appellant’s problem would not have arisen. That does not however necessarily mean that the work conditions were a significant contributing cause of the condition. Compare the distinction between a causa sine qua non and a causa causans or proximate cause (see Tophams Ltd v Sefton (1966) 1 All E.R. 1039, 1044 and Stapley v Gypsum Mines Ltd (1953) A.C. 663, 687). The necessity for the former does not mean that on an ultimate assessment, it must be regarded as a significant cause. As said in Tophams, the latter is the ‘real effective cause’, the former ‘merely an incident which precedes in the history or narrative of events’. There may of course be two or more factors which might each be regarded as ‘significant’ contributors to the development of a condition. The determination of which of a number of contributing causes is or are significant, involves a factual exercise. Unless, here, the circumstances of the employment, being necessary background at least, must, because an essential prerequisite to what occurred, be regarded as a significant contributor, I should in principle respect the Magistrate’s factual conclusion as reasonably open and dismiss the appeal.

The work conditions did, as I have said, certainly provide the setting or background against which the appellant’s particular disposition came into play. Although no doubt one should conclude then that the system operating at the place of employment was in that sense a ‘contributing factor’ it was not necessarily, as indeed the Magistrate must be taken to have found a ‘significant’ one – the only significant contributing factor in accordance with his findings being the appellant’s own disposition.”[10]

  1. [37]
    It should be noted, of course, that de Jersey P was not purporting to enunciate a test to be used in determining whether employment is a significant contributing factor to the injury. As was observed by Hall P in Boyd v Q-COMP:[11]

“The President was attempting to do no more than elucidate the application of the statutory test in a particular factual situation; viz. where the work conditions provide a setting or back drop against which the Appellant’s particular disposition came into play. Neither was the President suggesting that the same answer would always be given in such a situation.”

  1. [38]
    Similar observations were made in Simon Blackwood (Workers’ Compensation Regulator) v Civeo Pty Ltd and Anor[12] that Croning is an unusual case which is based upon unusual facts and his Honour, in referring to “the only significant contributing factor”, was emphasising that it was the worker’s own peculiar attitude which led to the injury.[13]
  2. [39]
    In Blair v Simon Blackwood (Workers’ Compensation Regulator)[14] the appellant had sought compensation on the basis that she had suffered lateral epicondylitis while at work. The case for the appellant was that she first recalled feeling pain in her left elbow when she lifted a pile of plates from a work trolley. The Commissioner held that the injury did not arise out of or in the course of employment and that the appellant’s employment was not a significant contributing factor to her injury.
  3. [40]
    In respect of the Commissioner’s finding that the appellant’s employment was not a significant contributing factor, it was held on appeal that:

“[10] The Commissioner found that the evidence did not support a finding of the injury occurring at work, rather that the nature of tennis elbow is that it is a degenerative condition and that the appellant’s employment was nothing more than the setting in which her pain and symptoms arose. Her employment was not, then, a significant contributing factor.

[11] Once again, the arguments advanced for the appellant seek to draw a different conclusion from the same evidence. The conclusion drawn by the Commissioner was open to her and no error has been demonstrated in the reasoning which she used, nor that, in reaching the conclusion, she failed to take into account any relevant matter.”

  1. [41]
    In Pleming v Workers’ Compensation Board of Queensland,[15] de Jersey P said:

“… first I deal with the resolution of the major question, whether the mere activating of that pain is to be equated with aggravation of the disease. I consider that statements in Federal Broom Co compel the conclusion that aggravation of the disease has occurred in those circumstances. Additional confirmation is provided by Percival & Beattie in the Federal Court, to which I have already referred. … Perhaps most directly relevant for the present is the statement in Beattie that ‘pain brought on by work activity may constitute an aggravation of a pre-existing injury even though no pathological change takes place’. In terms of the definition of aggravation provided by Windeyer J., the disease in those cases is aggravated because ‘the effects upon the patient’ are made ‘more serious’ through the occurrence of symptoms which would not occur but for the employment activity.

The conclusion should therefore be drawn that the disease (the degenerative back condition) was aggravated, in that bending at work likely produced related pain which would otherwise not have been experienced.

The remaining question is whether ‘the employment was a significant contributing factor’ to that aggravation. Dr Downes’ evidence, that the employment activity was ‘the cause of the pain’ would justify the conclusion that the employment contributed to the pain, thereby aggravating the disease in terms of the definition of injury. I do not however accept the submission of Mr Horneman-Wren that that evidence necessitated the conclusion that the employment was a ‘significant contributing factor’. There is obviously at least one other contributing factor – the degenerative condition itself, and on the evidence before the Magistrate that was certainly the major factor. There could be room, in theory, for another significant contributing factor; but on the evidence before the Magistrate in this case, was the employment activity in that category?”[16] (emphasis added)

  1. [42]
    de Jersey P answered that question in the negative. His Honour accepted the Magistrate’s finding that the appellant’s employment was no more than an “irritant” which failed to rise to the level of a significant contributing factor.
  2. [43]
    It follows that it is open in a case where injury has been established (as an aggravation or otherwise) for the decision-maker to nevertheless find that a degenerative condition is the contributing factor to an injury, notwithstanding the fact that such an injury occurred in the workplace.
  3. [44]
    The evidence of Dr Steadman was that the appellant’s injury in February 2016 was attributable to a previous injury and the post-operative issues accompanying that injury. The symptoms associated with the previous injury were said to have existed before, and at the time of, the injury in February 2016, and had persisted thereafter, at least until late August 2016. In this regard, the appellant accepted in cross-examination that he was suffering from symptoms – being pain and restriction in his forearm – before he returned to work. The Vice President also noted that the appellant did not seek any medical treatment for symptoms associated with the event on 25 February 2016 until almost one month after the event.
  4. [45]
    Dr McEniery conceded that Dr Steadman would have been in a better position to provide an opinion as to what occurred on 25 February 2016 having seen, examined and interviewed Mr Harrison. In these circumstances, the Vice President was entitled to prefer the evidence of Dr Steadman over that of Dr McEniery, and was entitled to have regard to that evidence in forming a conclusion in respect of s 32 of the Act. 
  5. [46]
    It follows that it was open to the Vice President to conclude that the injury suffered by the appellant on 25 February 2016 was attributable to the underlying degenerative condition and that the appellant’s employment was accordingly not a significant contributing factor.
  6. [47]
    No error of law has been demonstrated.

Ground 3

  1. [48]
    The Vice President stated that she accepted that “there was no worsening of the Appellant’s underlying degenerative condition as at 31 August 2016.” The Vice President appeared to accept that “the Appellant suffered an increase in his symptoms at work on 25 February 2016 as there was no evidence to the contrary.” She did accept that there was an injury and pain experienced by the appellant on 25 February 2016. From those statements it is unclear whether the Vice President found that there was no worsening of the appellant’s underlying condition as at 25 February 2016, as the appellant contends.
  2. [49]
    The appellant says that it was not in contest that the appellant’s work capacity was reduced following the injury in February 2016 and that he required ongoing medication to control his pain. Nevertheless, the Vice President had before her evidence that the MRI taken on 31 August 2016 showed only post-surgical changes and some mild tendinosis. Accordingly, it was open for the Vice President to conclude that as at 31 August 2016 the appellant had suffered no worsening of his underlying degenerative condition.
  3. [50]
    No error of law has been demonstrated.

Ground 4

  1. [51]
    At paragraph [83] of the Commission decision the Vice President held that:

“If the injury is a continuum of a previous injury then the decision of Karipa v Q-Comp and the authorities referred to therein do not assist. Had the Appellant simply suffered an aggravation or an exacerbation of his degenerative condition whilst performing his duties on 25 February 2016 then those authorities would be relevant.”

  1. [52]
    The appellant contended that, had the Vice President acted correctly, then she would have applied the “test” in Karipa v Q-Comp.[17] Karipa was a case concerning a worker who had experienced an aggravation of an underlying condition.
  2. [53]
    As discussed, the Vice President accepted that an injury had occurred. The thrust of Karipa, which is concerned with the establishment of an injury, was therefore irrelevant in the circumstances.
  3. [54]
    In respect of employment being a significant contributing factor, it was the respondent’s case in Karipa that the onset of that appellant’s bilateral carpal tunnel syndrome was not a consequence of work but a consequence of pre-existing constitutional factors. However, the appellant in Karipa successfully established that there was a causal relationship between her work duties as an order selector and the onset of symptoms of her bilateral carpal tunnel syndrome.[18] She was asymptomatic prior to commencing work – with no history of wrist pain – but developed symptoms in the course of performing her work duties.
  4. [55]
    In this sense, there is a relevant factual distinction between the injury in Karipa and the evidence in this case. Here, the evidence was that the appellant’s injury in February 2016 was a medical continuum of a previous injury which had continued to be symptomatic following his return to work. Accordingly, it was open to find that Karipa did not assist. 
  5. [56]
    This ground fails.

Was there otherwise an error of law?

  1. [57]
    The appellant pressed in oral submissions that the Vice President made an erroneous finding of credit based on a misunderstanding of certain evidence. This was not a ground of appeal but I will deal with it briefly.
  2. [58]
    In any event, the appellant says that there was an acceptance in the facts and contentions in the proceedings before the Vice President that the appellant’s employer had certified the appellant as having no capacity for work after the event on 25 February 2016 and he was to have nil weight used by his right arm. In the respondent’s reply to the statement of facts and contentions the respondent wrote that:

“With respect to the allegations contained in paragraph 15 of the Background, the Respondent:

a.  Admits that the Appellant was placed on a suitable duties program by his employer with lifting weights of 0kg to none with right limb;”

  1. [59]
    The appellant says that the Vice President failed to identify in any part of the judgment that that concession was made. The appellant referred to passages in paragraphs [19] and [20], wherein the Vice President relevantly said that:

“Whilst the Appellant says that he went on light duties after the event on 25 February 2016 it must have been the employer who arranged for the Appellant to perform light duties without the need for a medical certificate.

Other evidence of the Appellant however was that he was not able to do anything at home following the incident with his partner having to cut his meals and his son having to mow the lawn. That evidence does not sit well with the Appellant’s evidence that he was at work although on light duties after 25 February 2016.”

  1. [60]
    The appellant says that such comments would not have been made if the respondent’s concession had been identified. The appellant says that, despite the respondent’s concession, the Vice President then comments adversely on the appellant’s evidence that he had “zero capacity”.
  2. [61]
    At paragraphs [70] and [71] the Vice President observed that:

“… The first occasion following 25 February 2016 that the Appellant sought medical attention for the injury that occurred on 25 February 2016 was when he visited Dr Duraiswamy on 23 March 2016. Dr Duraiswamy was the first medical practitioner to issue the Appellant with a Workers’ Compensation Medical Certificate and that was on 23 March 2016. Almost one month after the event. Yet the Appellant’s evidence was that his capacity was ‘zero’ following the event on 25 February 2016 although he was able to perform light duties for his employer.

In that Workers’ Compensation Medical Certificate, Dr Duraiswamy diagnosed the Appellant as suffering right ‘elbow tennis elbow’ with the worker’s stated cause of injury being ‘lifting heavy at work’. Dr Duraiswamy indicated in that Certificate that the Appellant was suitable for restricted duties in the period 23 March 2016 to 30 March 2016. Dr Duraiswamy indicated that the Appellant was not able to lift any weight with his right upper limb, he could occasionally use his injured hand/arm and that the Appellant could only push or pull 5 kilograms. He further stated that the Appellant could only occasionally operate machinery/heavy vehicle and could only occasionally drive a car. This does not indicate that the Appellant’s capacity was ‘zero’. The Appellant, in his evidence about what occurred after the 25 February 2016, was at best not all that reliable.” (emphasis added)

  1. [62]
    The appellant says that it was an error for the Vice President to not identify that it was conceded that the appellant had “zero capacity” and then to speak of the appellant’s contention that he had “zero capacity” adversely in her findings.
  2. [63]
    The transcript of the Commission hearing reveals that the reference to “zero capacity” emerged during examination-in-chief in the following manner:[19]

“DR CROSS:   Mr Harrison, just point in time, just reflecting on that, prior to the operation, in March 2015, how would you describe your symptoms then? --- Hopeless.

Prior to this event on 25 February ’16, prior to it, how would you describe your symptoms? --- Nothing at all, not much at all, probably 90, 95 per cent on the mend.

And how would you describe your symptoms immediately following this event? --- Zero.

Zero capacity? --- After I lifted the milk crate, yeah I was - - -

And how would you describe your symptoms now without activity, how would you describe it? --- Thirty per cent.”

  1. [64]
    The respondent conceded that the appellant was placed on a duties program whereby he was not to lift weights with his right arm. The respondent did not concede that the appellant had “zero capacity” regardless of the activity. The Vice President was not precluded from finding that, notwithstanding the program that the employer had implemented, the appellant retained some capacity in his right arm outside of lifting weights. Dr Duraiswamy’s evidence is entirely consonant with such a finding.
  2. [65]
    In any event, the appellant says that the point of the submission is that there cannot be a continuum of an underlying condition if the appellant went from 95% capacity to zero capacity to 30% capacity. In other words, the concession goes to whether there was an aggravation of the appellant’s condition. 
  3. [66]
    In this regard, the submission encounters the same dilemma as the other grounds advanced by the appellant. The Vice President had accepted that an injury took place. The question was one of causation and, on that front, the Vice President preferred the evidence of Dr Steadman, who agreed that a change occurred in the appellant’s condition on 25 February 2016 but did not agree that that indicated a substantial deterioration in the appellant’s condition. He maintained that the appellant’s injury was consistent with an unsuccessful operation outcome on the basis of other medical evidence.
  4. [67]
    This submission fails.

Conclusion

  1. [68]
    The appeal is dismissed.

 

Footnotes

[1] [2013] QIRC 161.

[2] Harrison v Workers' Compensation Regulator [2018] QIRC 067.

[3] [2017] ICQ 001.

[4] At [27]. Citing British Launderers’ Research Assn v Borough of Hendon Rating Authority [1949] 1 KB 462 at 471.

[5] Australian Broadcasting Tribunal v Bond & Ors (1990) 170 CLR 321 at 356.

[6] Waterford v Commonwealth (1987) 163 CLR 54 at 77.

[7] See JBS Australia Pty Ltd v Q-COMP [2013] ICQ 13 at [4]; Ward v Q-COMP [2011] ICQ 33 at [5].

[8] Newberry v Suncorp Metway Insurance Ltd (2006) 1 Qd R 519 at 532.

[9] (1997) 156 QGIG 100.

[10] At 101.

[11] (2005) 180 QGIG 1129 at 1131.

[12] [2016] ICQ 001.

[13] At [13] and [15].

[14] [2016] ICQ 004.

[15] (1996) 152 QGIG 1181.

[16] At 1182.

[17] [2013] QIRC 161.

[18] At [49].

[19] Hearing T1-15, 16.

Close

Editorial Notes

  • Published Case Name:

    Shayne Harrison v Workers' Compensation Regulator

  • Shortened Case Name:

    Harrison v Workers' Compensation Regulator

  • MNC:

    [2019] ICQ 17

  • Court:

    ICQ

  • Judge(s):

    Martin P

  • Date:

    29 Nov 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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