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Glover v Simon Blackwood (Workers' Compensation Regulator)[2015] QIRC 215

Glover v Simon Blackwood (Workers' Compensation Regulator)[2015] QIRC 215

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Glover v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 215

PARTIES:

Glover, Lisa

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2015/115

PROCEEDING:

Appeal against a decision of the Workers' Compensation Regulator

DELIVERED ON:

18 December 2015

HEARING DATE:

27 July 2015

HEARD AT:

Brisbane

MEMBER:

Industrial Commissioner Black

ORDERS :

  1. Appeal dismissed
  2. The decision of the regulator dated 8 April 2015 is confirmed
  3. The matter of costs reserved

CATCHWORDS:

WORKERS' COMPENSATION - APPEAL AGAINST DECISION – jurisdictional challenge - appeal prosecuted in respect to an injury which was not assessed by either WorkCover in the first instance or the regulator on review – whether Commission had power to decide on appeal a question which was not answered by either WorkCover or the regulator.

CASES:

Workers' Compensation and Rehabilitation Act 2003, s 32, s 550, s 558

APPEARANCES:

Mr M. Smith, Counsel instructed by East Coast Injury Lawyers for the Appellant.

Mr F. Lippett, Counsel directly instructed by the Workers' Compensation Regulator, for the Respondent.

Decision

 Background

  1. [1]
    Lisa Glover ("the appellant") appeals a decision of the Review Unit of the Workers' Compensation Regulator ("the regulator") to reject her application for compensation for a neck injury as a result of a work related incident on 13 September 2013.
  1. [2]
    The appellant was employed by Lorna Jane Pty Ltd as a stock controller.  She sustained an injury on 13 September 2013 when she lost balance while using a ladder to retrieve a box from shelving.  The appellant said in her evidence that she felt immediate pain in her shoulder and it felt like she had "pulled something".  She did not immediately attend on a doctor because she just thought that she had pulled a muscle.  The appellant did however attend on her General Practitioner, Dr Botha, on 23 September 2013 in respect to the injury.  According to the medical records of the consultation the appellant told Dr Botha that she had "injured her right shoulder when she lifted a heavy box at work 10 days ago".
  1. [3]
    The appellant lodged an application for compensation with WorkCover on 23 September 2013.  In response to a question asking the applicant to specify the nature of the injury and the part of the body affected, the appellant wrote "shoulder, muscle/tendon strain (non-traumatic)".  An X-ray and ultrasound of the right shoulder were taken on 24 September 2013.  The X-ray did not reveal any fracture or abnormality.  An ultrasound finding of normal appearance was entered in respect to the rotator cuff tendons and biceps.  While subacromial bursa was normal in appearance at rest, dynamic assessment induced "bursal and tendon impingement but no symptoms of pain".
  1. [4]
    A workers' compensation medical certificate issued by Dr Botha on 26 September 2013 included a diagnosis of "impingement right shoulder".  The worker's stated cause of injury was "lifted a heavy box at work and immediately felt pain" in the right shoulder.  On 27 September 2013, WorkCover accepted the appellant's application for compensation for an "impingement right shoulder", with benefits to be paid from 23 September 2013.
  1. [5]
    The appellant was able to return to work in early November 2013 on alternate duties and reduced hours and continued to work with Lorna Jane until she took on a new job with another retailer in December 2013.
  1. [6]
    The appellant said that she experienced neck pain a few days before visiting a physiotherapist on 9 October 2013.  The physiotherapist noted that the appellant was reporting pain radiating from around her neck.  He said that upon examination, he found pain and tightness when assessing the range of motion of the appellant's neck.
  1. [7]
    The findings of the physiotherapist were reported to Dr Botha on 11 October 2013 and she included reference to the findings in her medical record of the consultation.  In her entry she noted that the physio had told the appellant that "she also injured the right side of her neck facet joints and that part of the pain is referred from the neck".  Dr Botha's examination notes included the finding "very painful on the right side of her neck soft tissue."
  1. [8]
    The appellant's workers' compensation claim was subsequently finalised on 1 February 2014 although WorkCover continued to fund the appellant's physiotherapy treatment through until July 2014.
  1. [9]
    In a consultation dated 7 July 2014 Dr Botha noted that the appellant's neck was still not 100 per cent and arranged for further imaging of the appellant's neck and shoulder involving a CT scan of the cervical spine and an ultrasound of the right shoulder.  She subsequently commissioned an MRI of the cervical spine on 5 August 2014.
  1. [10]
    The ultrasound findings dated 14 July 2014 were in keeping with subacromial/subdeltoid bursitis and impingement.  It was also noted that there was a thickening of the subacromial/subdeltoid bursa.  The CT scan also taken on 14 July 2014 concluded that "no cause for shoulder pain" was identified and that minimal degenerative changes were described.  The MRI taken on 8 August 2014 found that there was a "minor posterior disc bulge" which was more marked at C5/6.
  1. [11]
    The consultation notes of the appellant's attendance on Dr Botha on 3 September 2014 record that the appellant reported that she never had a problem before the incident at work on 13 September 2013 and that her physiotherapist had treated her for neck and shoulder symptoms from the start.  The appellant also reported that her physiotherapist had thought that she may have had a bulging disc from the first time she treated her.  Dr Botha issued a workers' compensation medical certificate on 3 September 2014 citing an injury of "bursitis and impingement right shoulder, and minimal and mild disc bulges at levels C2/3, C3/4, C4/5 and C5/6".  The additional diagnosis included in this certificate was presented to WorkCover on 3 September 2014. 
  1. [12]
    WorkCover informed the appellant on 24 November 2014 that it had rejected her application for compensation.  In so deciding WorkCover relied on an independent specialist report prepared by Dr Linwood which concluded that the disk bulges were unrelated to the appellant's September 2013 work injury.  Dr Linwood described the disk bulges as "very mild degenerative disk bulges" and said that the bulges were a common finding in asymptomatic individuals and that it was likely that the bulges were "just a normal background finding".
  1. [13]
    In an application for claim review dated 24 February 2015 the appellant submitted that there was no doubt that she had suffered an injury to her neck/cervical spine in the September 2013 work incident.  The submission also advanced the proposition that whether the appellant bulged any discs in the accident "is obviously in dispute but the WorkCover file and medical evidence clearly shows that she sustained at least soft tissue musculoligamentous injuries in the work incident".  Accordingly, WorkCover Queensland "should be required to formally accept a neck injury as a part of the Claimant's claim".  The appellant supported this proposition by reference to physiotherapy records which diagnosed neck pain on 9 October 2013 and to Dr Botha's 11 October 2013 finding on examination of right sided neck pain.
  1. [14]
    In its review decision dated 8 April 2015, the regulator confirmed WorkCover's decision to reject the appellant's application for compensation.  In its reasons the regulator noted that WorkCover's decision was to reject the injury diagnosed as "minimal and mild disc bulges at levels C2/3, C3/4, C4/5 and C5/6".  This conclusion was arrived at notwithstanding the regulator's acknowledgement that it was the view of the appellant that, irrespective of disk bulges, she had sustained at least soft tissue musculoligamentous injuries in the work incident on 13 September 2013.
  1. [15]
    In this regard the regulator noted that while there had been some dispute about the appropriate diagnosis for the appellant's injuries, the relevant question was whether the disk bulges identified in the appellant's cervical spine were related to her employment pursuant to s 32 of the Workers' Compensation and Rehabilitation Act ("the Act").  The regulator answered this question in the negative after making a determination that the appellant had suffered a personal injury diagnosed as "mild disk bulges at levels C2/3, C3/4, C4/5 and C5/6".

 Appellant's Evidence

  1. [16]
    The appellant said that she first experienced neck pain about four or five days prior to visiting her physiotherapist on 9 October 2013.  She had not experienced neck pain prior to this time.  Her neck pain has been treated by physiotherapy and participation in pilates programs.  The delay in the onset of neck pain was sought to be explained by reference to a preoccupation with shoulder pain and the possibility that neck pain had been masked by the shoulder pain.
  1. [17]
    The appellant had regularly completed gym sessions prior to the work incident on 13 September 2013 and resumed these visits a couple of months after the incident.  At these visits she lifted light weights, participated in pump classes and completed some outside jogging.  She had attended yoga classes prior to the work incident and resumed yoga a few months after the incident, but had to modify her positions.  She described her participation in yoga after the incident as "sporadic".  She began playing touch football in February 2014 and continued playing until June 2014.
  1. [18]
    The appellant said that she has only been able to complete one full pump class since the incident.  However she continued to attend at the gym where she does some weight work and uses some equipment including walking or jogging on a treadmill.  She no longer does the weight work she used to be able to do and instead just uses a machine for legs and back.  She said that she found shoulder presses too hard.
  1. [19]
    The appellant described the extensive and adverse impact of neck pain since its onset in early October 2013.  Her description suggested that there was very little that she could do in the course of daily activities which would not cause neck pain.  She said that "every day in some way, shape or form I'll be restricted" (T1-15).  A difficulty in evaluating this evidence arose from the appellant's failure to disclose in specific terms when she experienced significant episodes of neck pain.  The vagueness around the temporal connections led to significant inconsistencies in the evidence. 
  1. [20]
    A questionnaire included in Exhibit 3 was completed by the appellant on 2 January 2014.  According to the form, the questionnaire had been specifically designed to help the physiotherapist determine how the neck pain is affecting the patient's ability to manage in everyday life.  The appellant in answering the questionnaire said that her pain was very mild at the moment, that she can look after herself normally without causing extra pain, she can read as much as she wants with no pain in her neck, she can concentrate fully when she wants to without difficulty, she can do as much work as she wants to, she can drive her car without any neck pain, her sleep is slightly disturbed, she has slight headaches infrequently, and she is able to engage in most but not all of her usual recreational activities.
  1. [21]
    Inconsistencies are also demonstrated by reference to the medical records of Dr Botha and the records of Ms Taylor.  The physiotherapy records in particular establish that the appellant was pain free while engaging in a range of physical activities in the first half of 2014.

Dr Botha's Evidence

  1. [22]
    The appellant had been a patient of Dr Botha since 7 September 2012.  The appellant did not present to Dr Botha after the workplace incident until 23 September 2013.  At this consultation she complained of shoulder pain, but not neck pain.  The appellant returned to Dr Botha on 26 September 2013 reporting that her shoulder was still sore and uncomfortable.  At the next visit on 4 October the appellant reported that it was still painful to lift her shoulder above a certain height.  Starting a physio program was discussed.
  1. [23]
    Dr Botha agreed in her evidence that injuries arising from the workplace incident on 13 September 2013 should have surfaced within ten days.  She also said that either the neck or shoulder injuries complained of by the appellant would be expected to resolve within approximately three months.
  1. [24]
    The appellant did not raise neck pain with Dr Botha until a consultation on 11 October 2013.  On this occasion the appellant told Dr Botha that she had attended on a physiotherapist who had told her that she had also injured the right side of her neck facet joints.  On examination Dr Botha found that the appellant was "very painful on the right side of her neck" and that her shoulder was still the same.
  1. [25]
    On 11 October 2013 Dr Botha also responded to a number of questions put to her by WorkCover.  The effect of Dr Botha's responses was that the appellant could return to work on light duties subject to conditions around reaching and lifting and that the appellant's injury was expected to be resolved in approximately six weeks time.  That is, the appellant might be expected to resume normal duties some time in December 2013.
  1. [26]
    At the next consultation on 25 October 2013 the appellant reported some slight improvement with a little more movement and less pain.  On examination Dr Botha noted that the range of movement of the right shoulder was still reduced and that muscles were tender.  There is no explicit mention in the records of any discussion about neck pain.  On 1 November 2013 the appellant reported that she was feeling better, she could move her shoulder and the pain was less.  On examination Dr Botha noted that the appellant was much better, she had good range of movement and that the neck was not sore on the right hand side.  At the consultation on 22 November 2013 the appellant expressed concern that she was not getting better quick enough and that she has "lots of trouble working with her right arm above her head, even light duties".
  1. [27]
    While Dr Botha issued a general medical certificate on 22 November 2013 stating that the appellant was suffering from "severe neck pain and headache", she acknowledged that given that the certificate only provided that the appellant was unfit for work for one day (21 November 2013), that the neck pain and headache was probably a "one off" complaint.  Whatever the circumstances they did not alter the diagnosis of right shoulder impingement in a workers' compensation medical certificate issued the same day.
  1. [28]
    The consultation notes of 6 December 2013 indicated that the appellant could now work eight hours per day and should be able to return to normal duties at the end of January 2014.  On 6 February 2014 the appellant reported that she had a new job, that all was going well, and that she needed physiotherapy until 21 February 2014.  On 25 February 2014 the appellant reported that she could not "fully extend and flex her neck yet".  On 5 May 2014 the appellant told Dr Botha that "she feels the neck is still stiff" and on 7 July 2014 she reported that her neck was still not 100 per cent and that she still has to put heat packs on her neck at times for pain.
  1. [29]
    While Dr Botha issued many workers' compensation medical certificates after the first certificate was written on 26 September 2013, the diagnosis of "impingement right shoulder" remained unchanged until 28 July 2014 when the diagnosis was altered to "bursitis and impingement right shoulder".  This change resulted from the findings of an ultrasound and CT scan taken on 14 July 2014.  In the CT report a history of right shoulder impingement and neck stiffness was noted.  The findings for C3/4, C4/5, and C5/6 included no significant facet joint hypertrophy.  The report concluded that no cause for shoulder pain had been identified.
  1. [30]
    Dr Botha reviewed the findings with the appellant in a consultation on 28 July 2014.  The notes of the consultation indicated that bursitis and impingement were still the cause of the right shoulder condition, but the CT scan did not reveal any major problems with the neck.  In this regard the notes recorded that "symptoms more from neck according to her physio, but scan did not show up any major problems".  Following this Dr Botha commissioned an MRI scan of the appellant's cervical spine.
  1. [31]
    The MRI was completed on 8 August 2014.  The MRI report noted that clinical information had been provided to the effect that the appellant was experiencing pain down her neck and right arm as a result of a work injury.  The MRI found the presence of "minor posterior disc bulge, more marked at C5/6.  This finding led Dr Botha to again change the diagnosis of injury.  A workers' compensation medical certificate issued on 3 September 2014 altered the diagnosis to read "bursitis and impingement right shoulder, and minimal and mild disc bulges at levels C2/3, C3/4, C4/5 and C5/6".
  1. [32]
    A further change was made in a certificate issued on 7 November 2014 when the diagnosis was expressed as "bursitis and impingement right shoulder with thoracic outlet syndrome".  This change in diagnosis from "disc bulges" to "thoracic outlet syndrome" followed Dr Botha's referral of the appellant to Dr Rando.  In this regard Dr Botha said that the change in diagnosis was attributable to Dr Rando's findings.  The referral to Dr Rando had included reference both to the right shoulder condition and also to the MRI findings of mild disc bulges in the cervical spine.
  1. [33]
    The final change in diagnosis occurred on 13 February 2015 when Dr Botha issued a workers' compensation medical certificate including a diagnosis of "bursitis and impingement right shoulder, with thoracic outlet syndrome, soft tissue injury neck".  However in so doing Dr Botha accepted in her evidence that, given that neck pain was not experienced within ten days of the incident at work on 13 September 2013 and having regard to other relevant factors, she could not confirm that the injury diagnosed by her in February 2015 was caused by the same incident (T1-39):

"Given that circumstance, given that she’d mentioned neck pain only after being told by the physiotherapist she’d injured her neck, and having regard to the remainder of your clinical notes as we’ve discussed, I’m suggesting that you did not have any proper medical basis for telling WorkCover that she suffered an employment‑related neck injury on the 13th of September.  Do you agree with that proposition?‑‑‑Yes."

  1. [34]
    Dr Botha accepted in her evidence that the mild disc bulges found on the August 2014 MRI were degenerative.  The medical records of Dr Botha, and the contents of an exchange between her and WorkCover, were consistent with this position.  The consultation notes of 12 August 2014 referred to a discussion with WorkCover in which Dr Botha noted that the disc bulge was not related to the original injury, while a communication from WorkCover to her on 3 September 2014 included the following:

"In a conversation with Customer Advisor Jasmine Novice on 12 August 2014 you advised that the right shoulder injury was stable and stationary and the cervical spine injury you didn't feel was related to the work related injury occurring Friday 13 September 2013."

Dr Linwood's Evidence

  1. [35]
    Dr Linwood, a consultant occupational physician, examined the appellant at the request of WorkCover on 17 October 2014.  Arising from the examination Dr Linwood prepared a report which is in the evidence as Exhibit 11.  In preparing his report Dr Linwood had reviewed radiological findings of 25 September 2013, 14 July 2014, and 8 August 2014.  He had also reviewed reports prepared by Ms Taylor and particular responses given by Dr Botha to questions asked by WorkCover in May and September 2014.
  1. [36]
    It was Dr Linwood's evidence that given the mechanism of injury it would be expected that the appellant would have experienced pain in the shoulder at the time of the incident or very soon thereafter.  He said the appellant's shoulder impingement would typically be expected to resolve over a period of approximately three months.   Dr Linwood said that it was possible that the appellant could also have sustained a soft tissue injury to the neck in the incident at work.  If this were the case he said that he would expect that the symptoms of the neck injury would surface at the time of injury or "within a few hours or a day or so".
  1. [37]
    Dr Linwood’s evidence included his interpretation on the available radiology (T1-62):  

"My interpretation of the radiology is that there’s certainly no suggestion of any serious or significant underlying pathology demonstrated on these scans.  The CT scan which was taken on the 14th of July 2014 – and I would note that a CT is predominantly looking for issues relating to bones – was, you know, essentially normal.  It did not suggest any pathology related to the bones.  The MRI scan, which is more useful for looking at soft tissue conditions such as discs and nerves and the like which was taken on the 8th of August 2014, was, again, what I would pretty much call within normal limits.  It certainly noted some very mild degenerative disc disease present.  I believe specifically it noted that there was a very small posterior disc bulge at the C5 and C6 level.  However, there was certainly no suggestion this disc bulge was having any impact on any nerves or other soft tissues.  When I’m interpreting a result like that, I also have to be mindful of the fact that disc bulges like that are very common findings just across the population in people who do or do not have symptoms and, as such, my interpretation of those scans is that there was nothing of relevance to the symptomatology that Ms Glover was presenting with at the time, nor suggestive of anything acute having happened at the time of the incident."

  1. [38]
    In terms of the neck condition, Dr Linwood was of the opinion that the "very mild degenerative disc bulges noted on the MRI report are completely unrelated to the work-related injury".
  1. [39]
    The appellant reported to Dr Linwood that the pain that she initially experienced in the right shoulder began to involve the "right paraspinal musculature of the cervical spine at some point during the course of the injury" and that she received physiotherapy for both the shoulder and neck.  Dr Linwood said in his report that a comparison between the ultrasounds of the right shoulder taken on 25 September 2013 and 14 July 2014 showed a greater degree of bursitis present on 14 July 2014.  However he said that he would find it difficult to attribute the apparent worsening in the ultrasonographic findings to the original injury in September 2013 given that the appellant generally only performed light duties in employment subsequently and given her physiotherapy results that showed that by the end of January she was "95% recovered and back to normal".
  1. [40]
    Dr Linwood concluded that "it would seem most likely that the effects of the work-related injury in September 2013 are likely to have ceased in early 2014 when the appellant had 'achieved near full resolution of her symptoms'".  He said that it may be possible that the appellant had subsequent to resolution "been subject to an exacerbation of this soft tissue injury in her right shoulder which has manifested as ongoing symptoms and the apparent worsening of the ultrasonographic findings".

Ms Taylor's Evidence

  1. [41]
    Ms Taylor had been practicing as a registered physiotherapist for two and a half years.  She commenced treating the appellant on 31 October 2013.  She had taken over treatment of the appellant from another physiotherapist who had first seen the appellant on 9 October 2013.  Ms Taylor said that she had treated the appellant's neck and shoulder condition from October 2013 to the current time.  She was of the view that the neck and shoulder condition was caused by repetitive lifting in excess of 20kg above the shoulder and that the condition was aggravated when the appellant resumed light duties at work.
  1. [42]
    Despite making the assertion about aggravation, Ms Taylor said in a report to Dr Botha dated 31 October 2013 that since the first consultation on 9 October 2013 the appellant had responded well to physiotherapy and had reported an 80 per cent improvement in pain and function.  Ms Taylor also conceded that the appellant did not tell her that her return to work had caused an increase in pain.
  1. [43]
    Despite forecasting on 31 October 2013 that the appellant may be able to return to full time duties and full time hours by 12 December 2013, the appellant's treatment continued on 15 November 2013, 4 December 2013, 16 December 2013, 3 January 2014,  29 January 2014 and dates beyond.  Ms Taylor said at T1-47 that the appellant was not "responding as quickly as what we would typically see with these sort of injuries".  Notwithstanding this the report of Ms Taylor of 29 January 2014 stated that the appellant reported a 95 per cent improvement in pain and function and said that she was not experiencing any symptoms with work.  She did however say that she was experiencing some pain while completing shoulder presses and during some yoga positions.
  1. [44]
    The same pain was referred to again in Ms Taylor's 18 February 2014 report.  In her 12 March 2014 report Ms Taylor wrote that the appellant was pain free with touch football and running and is only reporting stiffness after yoga.  However the appellant did report pain after upper body weights at the gym.  In her 15 April 2014 report Ms Taylor reported the same outcome except to say that the appellant was also pain free at this time with most upper body weights in pilates and the gym.  A similar outcome was recorded after consultations on 23 May 2014, 16 June 2014, and 4 July 2014.
  1. [45]
    In Ms Taylor's 4 July 2014 report she recorded that the appellant "is still concerned that her neck is not a pre-injury level so has requested some imaging of her neck prior to the close of the claim".  Notwithstanding this, the report said that the appellant remained pain free with most recreational activities, had full range of movement at the shoulder joint and had good strength in the deep neck flexors.

Jurisdiction

  1. [46]
    The regulator submitted that, pursuant to s 548 of the Act, the jurisdiction of the Commission is limited to a consideration of a "review decision".  A review decision refers, pursuant to s 540, to certain decisions made by either WorkCover or a self‑insurer.  Relevantly, s 540(1)(a)(viii) of the Act refers to a decision by WorkCover to "allow or reject an application for compensation".
  1. [47]
    The appellant relied in seeking compensation on her original application for compensation which was made on 23 September 2013.  A new or separate application arising from the workers' compensation medical certificate issued by Dr Botha on 3 September 2014 was not lodged.  The WorkCover decision records that Dr Botha provided a diagnosis on 3 September 2014 which was additional to the diagnosis for the original and accepted claim of right shoulder impingement.
  1. [48]
    Section 540(2) of the Act requires that WorkCover gives written reasons for its decision.  In giving its reasons for decision on 24 November 2014 WorkCover concluded (Exhibit 6):

"Based on the medical information available under section 32 of the Workers' Compensation and Rehabilitation Act 2003 the diagnosis of 'minimal and mild disc bulges at levels C2/3, C3/4, C4/5, and C5/6' is not one for acceptance as it has been identified as an incidental finding during treatment for your accepted injury of 'impingement right shoulder' and not connected to the work-related event on 13 September 2013."

  1. [49]
    Section 541 of the Act relevantly provides that a worker aggrieved by the decision of WorkCover may apply for a review, while s 540(5) provides that the decision of WorkCover may only be reviewed by the regulator.
  1. [50]
    Section 545 of the Act provides that the regulator must review the decision within 25 days and decide whether to confirm the decision, vary the decision, set aside the decision and substitute another decision, or set aside the decision and return it to WorkCover with directions.
  1. [51]
    It was the regulator's submission that, pursuant to s 545(1), the regulator "could only have confirmed, varied or set aside the decision made by WorkCover concerning the disc bulges in the Appellant’s neck; not the alleged soft tissue injury in her neck and any pain coming from such an alleged injury."  In these circumstances the Commission has "no jurisdiction to hear and determine an Appeal by the Appellant for a soft tissue injury to the Appellant’s neck because there is no review decision about such an alleged injury".
  1. [52]
    In Winsome Abbott,[1] the Commission as currently constituted accepted the regulator's submission that the Commission, in exercising its powers under s 558 of the Act, was confined to answering the same question as was answered by regulator in its review decision.  Authority for this proposition was found in the Federal Court decisions in Hospital Benefit Fund of WA v Minister for Health (Hospital Benefit Fund)[2] and in Comcare v Burton (Burton).[3]  Both matters involved appeals from the Administrative Appeals Tribunal. 
  1. [53]
    In Hospital Benefit Fund, the Court held that:

"It is, of course, well established that the Tribunal determines what was the correct or preferable decision having regard to the whole of the evidence placed before it. It is not confined to the evidence which was before the primary decision-maker.  The Tribunal is, however, obliged to address the same question as was before the primary decision maker."

  1. [54]
    While in Burton[4] the Court concluded that:

"The process of reviewing that decision is to occur in the settling of the question(s) that gave rise to the decision. And while in that process the tribunal can exercise its s 43(1) powers, it nonetheless is obliged to answer the same question(s) as was (were) before the reconsideration decision-maker."

  1. [55]
    The appellant submitted that it had clearly articulated the proposition that the neck pain was attributable to a soft tissue injury in the material that was provided to the regulator in support of the review application.  It was the appellant's view that given that she had brought the soft tissue injury into contest in the review proceedings, and given the deliberate decision of the regulator to exclude or ignore material or submissions relating to a soft tissue injury, the review decision must be understood to include a determination to reject the appellant's claims relating to a soft tissue injury.  It followed that the decision given by the regulator included consideration of the soft tissue injury and therefore there should be no jurisdictional impediment to this injury forming part of the appeal.
  1. [56]
    That there was jurisdiction to proceed was emphasised in the appellant's view by the fact that the appeal was prosecuted as a hearing de novo.  A trial of the worker's application for compensation should take into account the basis articulated for the claim during the review process.  It was the appellant's submission that "the regulator was clearly on notice that the neck was an issue".  Any trial of the workers' application for compensation should include consideration of the fact that the appellant's injury at work on 13 September 2013 involved both injuries to the shoulder and neck.
  1. [57]
    The appellant also argued in effect that it was artificial and unnecessarily restrictive to reject the appeal on the basis that a soft tissue injury was materially different to a disc bulge injury.  A fairer approach would be to consider that the injury, however described, involved an injury to the appellant's neck which was a continuing cause of pain.  That is, whether the regulator was dealing with a disc bulge injury or a soft tissue injury, the injuries were fundamentally the same.  In this regard, the appellant submitted that the condition of "disc bulges" and "neck injury" are sufficiently connected for the Commission to make a determination.  That is, it is not material whether the cause of injury is diagnosed simply as a neck injury, or as disk bulges, or as a soft tissue musculoligamentous injury.  There was a sufficient connection between a diagnosis of "disk bulges" and a diagnosis of "soft issue injury" for the appellant's claim to be assessed by either the regulator or the Commission on appeal, particularly in circumstances where the contest was played out in the review process.
  1. [58]
    I am not attracted to the proposition advanced by the appellant that both injuries should be broadly categorised as the same injury (a neck injury) and that no distinction should have been drawn between them by the decision makers.  In a statutory scheme which hinges on a test of causation, precision in the expression of the nature of injury, the cause of the injury and the mechanism of injury are important components of a claim for compensation.  While I acknowledge that in some matters where, for example, the decision maker is confronted with competing medical opinions around causation or diagnosis, these components may be expressed with less precision and might be accompanied by some opaque reasoning, this is not such a case.   In this matter the appellant's claim was unambiguously articulated in terms of its reliance on Dr Botha's 4 September 2014 certificate and the decision of WorkCover was equally clear and unambiguous in response.  The question to be answered by the regulator on review had been clearly framed.
  1. [59]
    The additional diagnosis entered by Dr Botha in the workers' compensation medical certificate dated 3 September 2014 was "minimal and mild disc bulges at levels C2/3, C3/4, C4/5 and C5/6".  The injury assessed by WorkCover in its decision dated 24 November 2014 was the injury diagnosed by Dr Botha on 3 September 2014.  WorkCover never made a decision in respect to a soft tissue injury.
  1. [60]
    In her application for claim review dated 23 November 2014, the appellant asserted that WorkCover erred in not responding to her invitation to consider whether she "might have suffered soft tissue injuries to her neck, rather than the more specific and defined disk bulges".  In this regard, the appellant is asking that the regulator consider an injury different to that which was considered by WorkCover in its decision dated 24 November 2014.  In my view the regulator acted correctly in electing, consistent with s 545 of the Act, to limit its decision to a consideration of the same question as was answered by WorkCover.  That is, did the claimant's disc bulge injury meet the statutory test of association with employment?
  1. [61]
    It follows in my view that the only matter open to be determined by the Commission on appeal is whether the disc bulge injury was work related.  The appellant declined however to prosecute the appeal by challenging this finding.  In the circumstances it is my conclusion that the jurisdictional argument advanced by the regulator is entitled to succeed.
  1. [62]
    The appellant also relied in its defence of the jurisdictional objection on an argument of estoppel.  The appellant submitted, in effect, that the regulator was estopped, by virtue of its conduct in the matter prior to trial, from pressing a jurisdictional objection.  The conduct said to support a defence of estoppel was the conduct of WorkCover officers in responding to requests from the appellant seeking advice on whether WorkCover would consider a new claim for a soft tissue injury, or if such a claim were to be considered to have been already rejected, whether a review application should be made.
  1. [63]
    In the end result I have resolved the issue of estoppel by accepting the regulator's submission that even if the appellant had made out a prima facie case for estoppel, the estoppel could not be invoked because it would have the effect of overriding the relevant statutory provisions.[5]  In this regard, it was the submission of the regulator that WorkCover's decision on 24 November 2014 was based on a diagnosis of neck injury of disc bulges made by Dr Botha on 3 September 2014.  The decision of WorkCover that was reviewed by the regulator was a decision that the disc bulges in the appellant's neck were not related to the appellant's employment.  This was the decision under review and the decision which was subject to the Commission's jurisdiction on appeal pursuant to s 548(a) of the Act.  Estoppel could not be relied on to create jurisdiction when it does not otherwise exist under the statutory regime. 

Merit

  1. [64]
    While my finding on jurisdiction effectively disposes of the appeal, a consideration on merit does not lead to any different outcome. In essence the evidence in the proceedings does not support a balance of probabilities finding that the soft tissue neck injury diagnosed by Dr Botha on 13 February 2015, or on an earlier date, was caused by the incident at work on 13 September 2013.
  1. [65]
    The appellant injured her right shoulder in an incident at work on 13 September 2013.  The shoulder condition was investigated by an ultrasound taken on 24 September 2013 which found dynamic bursal and tendon impingement.
  1. [66]
    WorkCover accepted the claim and compensated the appellant for lost time and the cost of treatment including physiotherapy sessions commencing on 9 October 2013 and ending around July 2014.
  1. [67]
    The appellant experienced either neck pain, neck stiffness or neck soreness to varying degrees and at varying frequencies from early October 2013.  The appellant's physiotherapist treated neck pain on 9 October 2013 and Dr Botha diagnosed neck pain on 11 October 2013.
  1. [68]
    No imaging relating to the neck was ordered until July 2014, although the examination was primarily looking for causes of the right shoulder impingement.  A CT scan of the cervical spine taken on 14 July 2014 investigated right shoulder impingement and neck stiffness.  No cause for any shoulder pain was identified and no finding made about neck stiffness.  An MRI taken on 8 August 2014 to investigate pain down the neck and right arm found minor posterior disc bulges.  Neither Dr Botha nor Dr Linwood considered the bulges to be related to the work incident of 13 September 2013.
  1. [69]
    When the appellant reported neck pain to her physiotherapist on 9 October 2013 and to Dr Botha on 11 October 2013, it appeared that the neck symptoms were not treated independently of the shoulder symptoms.  In practical terms, neither the appellant, her treating physio, nor her GP isolated the neck symptoms from the shoulder injury, and the neck symptoms were treated as though they were related to the shoulder impingement sustained by the appellant in an incident at work on 13 September 2013.  Neither did WorkCover appear to differentiate between the causes of the neck and shoulder injury, despite the accepted claim being for a right shoulder impingement.
  1. [70]
    The workers' compensation claim was finalised on 1 February 2014, however, WorkCover continued to fund physiotherapy and pilates sessions for the appellant.  By early March 2014 according to physiotherapy records the appellant was pain free while playing touch football and running.  She enjoyed a full range of movement for both shoulder joint flexion and abduction.  Deep neck flexors were described as having good strength but poor endurance and control.  This assessment improved over time and on 16 June 2014 Ms Taylor concluded that although the appellant was not reporting that she was back to pre-injury status "she is starting to plateau with physiotherapy gains" and that after two more sessions Ms Taylor did "not anticipate further functional gains through physiotherapy".
  1. [71]
    Dr Linwood had concluded that "it would seem most likely that the effects of the work-related injury in September 2013 are likely to have ceased in early 2014 when the appellant had 'achieved near full resolution of her symptoms'".  I take this evidence to apply to all symptoms experienced by the appellant.  The opinion was not limited to shoulder symptoms.  The evidence of Dr Linwood, Dr Botha and Ms Taylor supports a finding that to the extent that the appellant's combined condition had been attributed (correctly or otherwise) to the incident at work on 13 September 2013, that injury had resolved by 4 July 2014, if not earlier.  The appellant's claim for compensation, the subject of the appeal, is to be considered in this context.
  1. [72]
    Notwithstanding the apparent resolution of her symptoms, on 28 July 2014 the appellant reported some deterioration to her physiotherapist.  She attributed the deterioration to a recent reduction in physiotherapy and pilates as a consequence of the cessation of WorkCover funding.  This reporting by the appellant suggested that despite the advances of the previous six months, and the medical evidence about resolution, either her symptoms had not fully resolved or alternatively, she may have exacerbated or aggravated her condition.
  1. [73]
    In this regard Dr Linwood opined that it may be possible that the appellant had subsequent to resolution "been subject to an exacerbation of this soft tissue injury in her right shoulder which has manifested as ongoing symptoms and the apparent worsening of the ultrasonographic findings".  The problem for the appellant here however is that there is no basis upon which to conclude that any aggravation was work related.
  1. [74]
    In response to the appellant's reporting of increased symptoms on 28 July 2014, Ms Taylor recommended an MRI to investigate the extent of the appellant's disc pathology.  Dr Botha ordered the MRI which was completed on 8 August 2014.  The appellant subsequently relied on these findings, and the consequential diagnosis by Dr Botha, in making her application for compensation.
  1. [75]
    This was the first occasion that the neck pain had been isolated for investigation by MRI imaging.  However while the finding of disc bulges might potentially explain symptoms of neck stiffness and soreness complained about by the appellant, it did not, on the medical evidence, facilitate a conclusion that the disc bulges were related to the incident at work on 13 September 2013.
  1. [76]
    Confronted with these outcomes, the appellant changed course and sought to substantiate her claim based on an injury described as soft tissue neck injury.  A further additional diagnosis in these terms was provided by Dr Botha on 13 February 2015.  However Dr Botha conceded when giving evidence in the proceedings that there was no adequate basis upon which she could conclude that the soft tissue injury diagnosed in February 2015 was caused by the incident at work some seventeen months earlier in September 2013.
  1. [77]
    In the end result the appellant has not been able to succeed in establishing on the balance of probabilities that the soft tissue injury diagnosed by Dr Botha on 13 February 2015, or on an earlier date, was caused by the incident at work on 13 September 2013.  Alternatively, if a soft tissue injury were caused by the incident at work, it would have resolved some time in 2014 and no later than 4 July 2014.
  1. [78]
    Findings on the evidence adverse to the appellant's prospects are set out below:
  1. (i)
    Despite the medical evidence favouring a position that neck pain caused on 13 September 2013 would have surfaced within ten days, there was a three week delay in the onset and reporting of neck pain or symptoms which was not adequately explained;
  1. (ii)
    On the medical evidence both the shoulder impingement and any soft tissue neck injury arising from the work incident on 13 September 2013 should have resolved by mid-2014;
  1. (iii)
    The factual evidence supported a finding that the appellant's neck and shoulder symptoms had resolved by the end of June or early July 2014;
  1. (iv)
    That while it was possible that the appellant may have aggravated the work related injury sustained on 13 September 2013 after resolution of symptoms, no evidence was adduced supporting a conclusion that any such aggravation was work related;
  1. (v)
    The July and August 2014 radiological findings did not establish a causal connection between the appellant's neck condition and her employment.  The only evidence of any neck condition was provided by an MRI taken in August 2014 which established that the appellant's neck condition was degenerative and not related to work;
  1. (vi)
    The MRI finding of disc bulges on 8 August 2014 was consistent with the symptoms reported by the appellant of neck stiffness, neck soreness, and restriction on lateral neck movement;
  1. (vii)
    On Dr Botha's evidence that facet joint irritation symptoms could imitate disc protrusion or disc bulge symptoms circumstances, it was possible that the physiotherapist's October 2013 diagnosis of facet joint irritation as the cause of the appellant's neck pain may not have been accurate, and that disc bulges were the cause.  The appellant speculated to this effect in her consultation with Dr Botha on 3 September 2014 where the consultation notes include an entry to the effect that the appellant told Dr Botha that Ms Taylor thought that the appellant "may have a bulging disc from the first time she treated her";
  1. (viii)
    While it was possible that, had the disc bulges identified on 8 August 2014 developed before 13 September 2013, and could have been aggravated by the incident at work, this case was not pursued in the appeal.

Decision

  1. [79]
    The regulator's jurisdiction was limited to making a determination about whether the appellant's disc bulge injury was causally connected with her employment pursuant to s 32 of the Act and the Commission's jurisdiction is confined to a consideration of the same question.  There is, therefore, no capacity to make a decision in respect to the appellant's soft tissue injury. If jurisdiction does exist, my decision remains unaltered for the reasons given.
  1. [80]
    The appeal is dismissed and the decision of the regulator dated 8 April 2015 is confirmed.
  1. [81]
    I order accordingly.

Footnotes

[1] Q-COMP and Winsome Abbott (WC/2013/154) 28 June 2013.

[2] Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225 at 234.

[3] Comcare v Burton (1998) 157 ALR 522 at 528.

[4] Comcare v Burton (1998) 157 ALR 522.

[5] Michael Simmons as trustee for the Fate Trust v Special Projects (Qld) Pty Ltd [2011] QSC 423 at 56, 57.

Close

Editorial Notes

  • Published Case Name:

    Glover v Simon Blackwood (Workers' Compensation Regulator)

  • Shortened Case Name:

    Glover v Simon Blackwood (Workers' Compensation Regulator)

  • MNC:

    [2015] QIRC 215

  • Court:

    QIRC

  • Judge(s):

    Member Black IC

  • Date:

    18 Dec 2015

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Comcare v Burton (1998) 157 ALR 522
2 citations
Jump To
Cite 1 - (1998) 157 ALR 522
Cite 2 - (1998) 157 ALR 522
Simmons v Special Projects (Qld) Pty Ltd [2011] QSC 423
1 citation
Jump To
Cite 1 - [2011] QSC 423
Western Australia Inc. v Minister for Health, Housing and Community Services (1992) 39 FCR 225
1 citation
Jump To
Cite 1 - (1992) 39 FCR 225

Cases Citing

Case NameFull CitationFrequency
Kim, Insung v Workers' Compensation Regulator [2018] QIRC 483 citations
1

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