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Carroll v Workers' Compensation Regulator[2016] QIRC 16

Carroll v Workers' Compensation Regulator[2016] QIRC 16

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Carroll v Workers' Compensation Regulator [2016] QIRC 016

PARTIES:

Carroll, Susan Gail

(Applicant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2014/170

PROCEEDING:

Appeal against decision of the Workers' Compensation Regulator

DELIVERED ON:

2 February 2016

HEARING DATES:

4 and 26 September 2014

20 October 2014 (Respondent's written submissions)

27 October 2014 (Appellant's written submissions)

3 November 2014 (Respondent's written submissions in reply)

HEARD AT:

MEMBER:

Brisbane

Industrial Commissioner Neate

ORDERS:

  1. The Appeal is dismissed.
  2. The decision of the Workers' Compensation Regulator is confirmed.
  3. The Appellant is to pay the costs of, and incidental to, the appeal to be agreed or, failing agreement, to be subject of a further application to the Commission.

CATCHWORDS:

WORKERS' COMPENSATION - APPEAL AGAINST DECISION OF REGULATOR - Physical and/or psychiatric injury  - where payments of weekly benefits, medical and rehabilitation expenses ceased - whether incapacity because of work related injury has stopped - whether medical treatment is no longer required – appellant bears onus of proof.

CASES:

Workers' Compensation and Rehabilitation Act 2003 ss 144A, 144B.

Adelaide Stevedoring Company Ltd v Forst (1940) 64 CLR 538

Chattin v WorkCover Queensland (1999) 161 QGIG 531

Commissioner of Police v David Rea [2008] NSWCA 199

EMI (Australia) Limited v Bes (1970) 44 WCR 114

Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190

Holtman v Sampson [1985] 2 Qd R 472

Ivey v WorkCover Queensland (1999) 162 QGIG 392

Joyce v Yeomans [1981] 1 WLR 549

Monroe Australia v Campbell (1995) 65 SASR 16

Obstoj v Van de Loos (Unreported, Supreme Court of Queensland, Connolly J, 16 April 1987)

Ramsay v Watson (1961) 108 CLR 642 645

Rossmuller v Q-COMP (C/2009/36)

Sotiroulis v Kosac (1978) 80 LSJS 112

Tyson v Blackwood [2014] QIRC 191

APPEARANCES:

Mr S. Sapsford, counsel for the Appellant, directly instructed by L. Fermor of Sciaccas Lawyers.

Mr J. Wiltshire, counsel instructed directly by the Respondent

Decision

  1. [1]
    Susan Gail Carroll ("the Appellant") fell at her workplace, Hill View House Aged Care Residence, on 11 July 2013 in the course of her employment as a cleaner.  She lodged an application for compensation with WorkCover Queensland (“WorkCover”) on 11 July 2013 seeking statutory workers' compensation benefits for an injury that she alleged she sustained in the fall.
  1. [2]
    WorkCover accepted a claim for "right shoulder, paraspinal injury and left lateral neck musculoskeletal injury" and paid benefits under the claim for medical treatment and weekly benefits.
  1. [3]
    By a decision dated 4 December 2013,WorkCover decided to terminate the Appellant's entitlement to the payment of weekly benefits effective 9 October 2013, and to the payment of medical, rehabilitation or hospital expenses from 30 November 2013.
  1. [4]
    The Appellant applied to the Workers' Compensation Regulator ("the Respondent") for a review of that decision.  In a decision dated 8 April 2014, sent to the Appellant's solicitors by letter dated 17 April 2014, the Review Unit of the Respondent confirmed the decision of WorkCover to terminate the Appellant's entitlement to the payment of weekly benefits from 10 October 2013 and to the payment of medical and rehabilitation expenses from 1 December 2013 in accordance with s 144A and s 144B of the Workers' Compensation and Rehabilitation Act 2003 ("the Act").
  1. [5]
    The Appellant has appealed to the Queensland Industrial Relations Commission ("the Commission") against the Respondent's decision.

The issue

  1. [6]
    The issue in this appeal is whether pursuant to ss 144A and 144B of the Act the Appellant had an ongoing entitlement to compensation beyond 9 October 2013, and a requirement for further medical treatment beyond 30 November 2013 as a result of her accepted work related injury, sustained on 11 July 2013.

Legislative provisions

  1. [7]
    At the relevant date, s 144 of the Act provided:

 "144A When weekly payments of compensation stop

  1. (1)
    The entitlement of a worker to weekly payments of compensation under part 9 stops when the first of the following happens—
  1. (a)
    the incapacity because of the work related injury stops;
  1. (b)
    the worker has received weekly payments for the incapacity for 5 years;
  1. (c)
    compensation under this part reaches the maximum amount under part 6.
  1. (2)
    If subsection (1)(b) or (c) applies, the worker's entitlement to further compensation for the injury stops.
  1. (3)
    This section does not limit another provision of this Act that stops weekly payments."
  1. [8]
    Because s 144A(1)(b) and (c) do not apply in the present circumstances, the Commission must consider whether s 144A(1)(a) applies, i.e., whether the Appellant's incapacity because of the work related injury has stopped.
  1. [9]
    At the relevant date s 144B provided:

"144B When payment of medical treatment, hospitalisation and expenses stops

The entitlement of a worker to the payment of medical treatment, hospitalisation and expenses under chapter 4 for an injury stops when—

  1. (a)
    the entitlement of the worker to weekly payments of compensation under part 9 stops; and
  1. (b)
    medical treatment by a registered person is no longer required for the management of the injury because the injury is not likely to improve with further medical treatment or hospitalisation."
  1. [10]
    Because subsections (a) and (b) are conjunctive, the question is whether medical treatment by a registered person is still required for the management of the injury sustained by the Appellant.
  1. [11]
    The appeal constitutes a hearing de novo.  The Appellant bears the onus of proof on the balance of probabilities, as she seeks to disturb the status quo.[1]
  1. [12]
    To succeed, the Appellant must prove to the Commission that:
  1. (a)
    her entitlement to weekly compensation has not stopped because her incapacity because of the work related injury has not stopped; and
  1. (b)
    her entitlement to payment of medical expenses has not stopped because the injury is likely to improve with further treatment.
  1. [13]
    As will become apparent, there are issues in this case as to the nature of the Appellant's injury or condition at the time when payments ceased, as well as whether it is         work-related, has not stopped, and is likely to improve with further treatment.

Background

  1. [14]
    In March 2012, the Appellant injured her right shoulder while using a carpet cleaning machine at work. As a result, she had some time off work, and received rehabilitation and compensation for the injury.  She returned to work, performing light duties before resuming her full duties some four or five months after the initial injury. According to the Appellant, she recovered from that injury. The Appellant normally worked on four days each week, did some overtime and successfully performed her full duties up until the incident on 11 July 2013. 
  1. [15]
    The Appellant gave evidence that, on 11 July 2013, soon after starting her shift as a cleaner at Hill View House Aged Care (“Hill View House”), she had a fall in the cleaner's store room.  She was packing the work trolley and reached for a large box of paper towels located on a high shelf.  The box slid towards her and, as she went to move back to get out of the way, she hit the mop bucket and brooms that were directly behind her on the wall.  She "sort of, bounced around and fell down" to the floor.  She managed to leave the store room and went across the hallway to the care station where she sat and waited for another worker.  A fellow worker took her to an empty room where she lay on a bed.  The Appellant experienced pain across both shoulders, her neck, and across her hips and back.  She subsequently went by ambulance to hospital where she had x-rays taken of her right shoulder blade.  After receiving treatment from a doctor at the hospital, the Appellant caught a taxi back to work and spoke with relevant people before driving home.  
  1. [16]
    Nicole Young, an HR employee at Hill View House arranged for the Appellant to attend physiotherapy soon after the incident. Dr Parer, who worked in the medical centre near Hill View House, gave the Appellant some days off work.  The Appellant made an application for workers' compensation which was accepted on 16 July 2013.  An appointment was arranged for the Appellant to see Dr Neil Bartels on 31 July 2013.  The Appellant signed an agreement with her employer to see Dr Bartels, apparently on the basis that it was the doctor chosen by the employer and the Appellant would not be out of pocket. 
  1. [17]
    The Appellant stated that she returned to work by 1 August 2013, for fewer days each week (two or three) than previously. Although she was apparently meant to perform light duties, the Appellant gave evidence that her duties were not light and that she had "a great deal of problems and pain resulting from" the duties she was instructed to perform (e.g., cleaning bathrooms including toilets and the outside of toilets and floors) which required her to work on her hands and knees.   Previously, the Appellant had been able to use a mop and other equipment to do the work, but she was unable to bend and stretch and use that equipment because of the condition of her neck and shoulder.  According to the Appellant, her neck was still sore and she did not have full turning ability. Her shoulder was “restricted” and her lower back areas sore if she “bent the wrong way”.  The Appellant gave evidence that she progressed "with a lot of pain and a lot of tears" and it was "very, very difficult." She described the shoulder pain as worse than the pain from her shoulder injury in 2012.  After three days, the Appellant put in a formal complaint about the work she was instructed to do and about a co-worker who had complained that the Appellant was not pulling her weight and was making the co-worker's job harder. 

History of medical diagnosis and treatment 

  1. [18]
    The history of the Appellant's attendance on, and diagnosis and treatment by, medical practitioners in the period between July and November 2013 provides the context for dealing with matters in issue in these proceedings.  In particular, because there is a question about why the Appellant saw different doctors on different occasions in relation to the same condition, it is appropriate to record her explanations.
  1. [19]
    On 31 July 2013, the Appellant attended on Dr Bartels for the first time in relation to the injury. Dr Bartels explained that Hill View House used him as their medical officer, particularly in work-related injury matters.  The Appellant presented with a history of having had a fall approximately three weeks previously.  By the time he saw her, the neck injury and lumbar spine injury had "largely settled" and she presented predominantly with symptoms around her right shoulder.  Those symptoms related to pain and restriction in the range of motion that she had in that shoulder.  When he examined her, Dr Bartels found some restriction but it was nearly normal and he recorded no abnormality detected.  He:
  1. (a)
    issued her with a workers' compensation certificate;
  1. (b)
    discussed with her the options of making a return to work in a suitable duties capacity because the range of motion that she had was "reasonable" (and in such circumstances, it is preferable to get a patient to continue working to avoid adhesive capsulitis or complications to shoulder injuries with restrictions);
  1. (c)
    suggested physiotherapy and referred her to a physiotherapist;
  1. (d)
    suggested an anti-inflammatory;
  1. (e)
    suggested that she undertake a home-based program to maintain mobility and strength and avoid the adhesive capsulitis (“frozen shoulder”) that can sometimes happen if these injuries are not kept active;
  1. (f)
    sent her for imaging studies (an x-ray and an ultrasound to the right shoulder) to confirm there was no other unknown or underdiagnosed pathology;
  1. (g)
    discharged her and suggested she return in two weeks after commencing some treatment. 
  1. [20]
    In a letter to Rehab At Home dated 5 August 2013 (Exhibit 18), Dr Bartels referred the Appellant for physiotherapy and expressed the desire that she have a home-based program.  He also requested some "active hands on physiotherapy with respect to the right shoulder and also to left paracervical region."  He had advised the Appellant that she should use some pain relief before she attended physiotherapy.
  1. [21]
    In that letter, Dr Bartels included a diagnosis of work-related injury as:
  • right rotator cuff injury;
  • soft tissue injury left paracervical region (whiplash injury);
  • aggravation to lumbar sacral spine.
  1. [22]
    He noted that there had been some improvement particularly in the lower back and, to a lesser extent, in the right shoulder and left cervical region.  He noted that the Appellant had made a return to work after less than a week and was working the same hours but with modified duties.  He described her as having a positive work ethic and being keen to continue working and upgrade her activities. 
  1. [23]
    Imaging studies were taken on 5 August 2013.  They confirmed that there was no serious pathology in the shoulder that required urgent surgical attention.  She had some thickening of the bursa in her right shoulder but it was not impinging, so it was likely that it could be managed conservatively, i.e., without surgical management.  There were some changes around the acromial clavicular joint which suggested some arthritis.  Dr Bartels explained the results of those images with the Appellant on             6 August 2013.  In particular he explained that:
  1. (a)
    she had some inflammation in the tendon around the shoulder joint but there was no necessity for urgent surgical attention and it was possibly best managed conservatively;
  1. (b)
    she had bursitis but, because it was not catching or impinging, that could also be treated conservatively (i.e., without surgery) by physiotherapy and a hydrocortisone and local anaesthetic injection;
  1. (c)
    she had likely aggravated some pre-existing degenerative change within the right acromial clavicular joint, and surgery might be required.
  1. [24]
    He recommended physiotherapy.  Other possibilities (e.g. injection and surgery) were suggested to ensure that the Appellant was fully informed about the chronology of how the treatments might occur. Dr Bartels' notes of that consultation record that the cervical spine and lumbar spine were "easing," with "predominant pain" in the right shoulder (Exhibit 17).
  1. [25]
    On 7 August 2013, the Appellant attended on Dr Bartels and told him about the work she was doing and the pain she was experiencing. By her account, he told the Appellant that she should not be doing those things and suggested that she speak with Ms Young about the matter, and that he would speak with Jolene Gardiner at WorkCover.
  1. [26]
    Dr Bartels' consultation notes record that the Appellant had "overworked apparently at work because she has had negative comments by another cleaner.  Doesn't want to continue to work with her.  Only in the last 2 days."  (Exhibit 17) He did not recall the Appellant telling him that she had been directed by a fellow worker to do duties which were painful to her and aggravated the condition in her right shoulder, or that the Appellant said that she felt bullied.  However, he recalled reiterating to the Appellant that, with her injury, she needed to stay within the return to work program and stay on the treatment as suggested.  He noted that diversional therapy was an option.  That involves taking aged care residents and occupying the time with activities such as reading which do not involve upper limb activity. 
  1. [27]
    When she returned to work, the Appellant told her employer who suggested she make a formal complaint.  Having made a formal complaint, the Appellant attempted to perform other duties at work, but that proved unsatisfactory and she was in "a lot of pain."  About the end of August, during the second period of light duties, the Appellant requested  that she divide her lunch break so that she could have more than a five minute break every two hours. 
  1. [28]
    On 14 August 2013, the Appellant attended on Dr Bartels.  Apparently she had reacted adversely to the anti-inflammatory medication, and Dr Bartels changed that medication.  Around this time, the Appellant was having physiotherapy, initially twice each week then once each week. 
  1. [29]
    Dr Bartels recorded that the reason for the consultation was "anxiety – generalised." He recalled that the Appellant was a little anxious about the persisting symptoms that she had in her shoulder and about the level of pain and restriction she was experiencing.  He commenced her on a small dose of diazepam (valium) in case there was a muscle spasm component to her condition, and to deal with her anxiety.
  1. [30]
    On 22 August 2013, the Appellant consulted Dr Bartels about right shoulder pain.  His consultation notes record that physiotherapy was helping but provided "only short term benefit."  The Appellant felt that pain was "intermittent unusual" and the pain level was worse than six weeks previously, all other pain having ceased.  She experienced pain at night.  Dr Bartels was concerned that the level of symptoms that the Appellant was exhibiting were over and above what one would normally expect at that stage after a fall, particularly in light of the conservative treatment that the Appellant had tried (including anti-inflammatories and some physiotherapy).  He described the symptoms as "a little bit disproportionate to the clinical and radiological and historical findings."  He scheduled a review at a case conference on 28 August 2013.
  1. [31]
    In the week before the case conference, Jennifer Turner (who had experience as a facility manager and deputy director of nursing) discerned that the Appellant was quite distressed and unsure about what the meeting meant.  The Appellant was not sure about what to do and felt that she did not have any choice in the matter.  At that stage, Ms Turner offered to assist as the Appellant's support person. 
  1. [32]
    There is evidence that Ms Gardiner was aware of the Appellant's concerns about the pending case conference approximately one week before the conference and that she took steps to ameliorate those concerns.  At 9.27 am on 22 August 2013, Ms Gardiner sent the following email to Dr Bartels:

  "Dear Dr Bartels

Susan has called today to advise she is in a lot of pain and wanted to see a doctor.  She also mentioned her concerns regarding the case conference next Wednesday.

When she sees you today, can you please ease her mind about the case conference and explain that this is to discuss her return to work and ongoing management and treatment plan.

This is not a case conference to chastise or bully her as this is what I believe she thinks it is.

Also what do you think about Adjustment to injury counselling?  If you believe this is warranted, please discuss with her and refer her to a local psychologist.

Happy to discuss with you further if you wish. 

Kind regards

Jolene Gardiner   Senior Customer Advisor

WorkCover Queensland" (Exhibit 19)

  1. [33]
    Dr Bartels requested diagnostic imaging (x-ray and CT scan to cervical spine), in case an associated injury had been missed.  The imaging was undertaken on 23 August 2013 and the report shows that the Appellant's condition was "completely normal."  There were no abnormalities and, in particular there was no nerve impingement where the nerve exits the spinal canal.  Those areas were completely clear. 
  1. [34]
    On 28 August 2013, the Appellant attended a case conference with Dr Bartels at his surgery.  Carla Brandon (the manager/director of nursing at Hill View House) and   Ms Young attended in person, and Ms Gardiner from WorkCover participated by telephone. The Appellant was accompanied by Ms Turner as her support person.       Ms Turner described the Appellant's demeanour going into the case conference as "nervous, anxious."  During the meeting she observed that the Appellant was trying to convey what she was feeling and was not quite understanding what was being said.  The Appellant was "cut off quite a bit, so it was difficult for her to get it across, what she was trying to say."  Ms Turner confirmed that the Appellant was teary. 
  1. [35]
    Purpose of the case conference:  Dr Bartels recalled that the purpose of the case conference included:
  1. (a)
    ensuring that everyone was on the same track as far as the return to work program was concerned (which is why people from Hill View House and WorkCover were present); and
  1. (b)
    clarifying what treatment had been undertaken and some of the proposals for the future, particularly as the Appellant had not progressed as well as expected given the nature of the injury.
  1. [36]
    The Appellant said that she was told that the purpose of the meeting was "an overview so we could all be on the same page." 
  1. [37]
    Ms Turner said that she understood the purpose of the meeting was about getting the Appellant back to work and off WorkCover. 
  1. [38]
    Context and conduct of the meeting: The Appellant gave evidence that she had some issues with Ms Gardiner at WorkCover, who she felt was not listening to her and was bullying her.  Sometimes the Appellant could not understand what Ms Gardiner wanted her to do, and she could not get an explanation from Ms Gardiner.  The situation caused the Appellant some anxiety, and she reached the stage where she was afraid to ring Ms Gardiner.  The Appellant said that she was upset about the meeting on 28 August 2013 because she was scared of Ms Gardiner and afraid to talk to her. Although the Appellant agreed that it was good for her doctor, employer, and WorkCover claims officer to get together to discuss matters so that they could "all be on the same page" about her treatment, she expressed a view at the meeting that she had been shanghaied into having a case conference with those people even though it was her appointment.  She found the meeting "intimidating" and became "extremely" anxious about it. 
  1. [39]
    The Appellant said that she did not feel she was treated very well during the meeting. She felt that she was being called a liar, that she was making trouble for everybody, and that nobody was listening to her.  She recalled that she was "extremely upset" and "in tears for a large part" of the meeting, and there were only certain parts of the meeting that she remembered clearly.  She had some time off work after that meeting. Ms Turner described the meeting as "very abrupt … very unfriendly … very uncomfortable," with "no support." 
  1. [40]
    Ms Turner made detailed handwritten notes of that meeting from which she made a typewritten record. Both documents were in evidence (Exhibit 14). The contents of those notes were not in issue.  It appears from those notes and oral evidence that the topics discussed included
  1. (a)
    treatment options,
  1. (b)
    transport difficulties and taxi fares.
  1. [41]
    Treatment: Because her injury had not improved with physiotherapy, Dr Bartels wanted to move to the next step which involved injections and having her shoulder checked for surgery.  Dr Bartels suggested considering an intra-articular injection (given the Appellant's failure to respond to treatment) and flagged the possibility that surgery could be considered (an option that he would normally have brought forward earlier but the Appellant had suggested to him from the outset that she had "a real reluctance towards undertaking any treatments, any significant treatment beyond a very conservative treatment").  He also brought up the issue of possible adjustment to injury counselling, and that was arranged subsequently.  According to the Appellant, Dr Bartels wanted a new return to work schedule prepared.  He wanted the Appellant to see a return to work psychologist (and she subsequently consulted Eli Sky). 
  1. [42]
    The notes of the conference are not a verbatim record.  However, the following passages from the typewritten version apparently reflect some of what Dr Bartels said.   He made a brief comparison of the Applicant's injury and the one she had suffered in 2012 when he made a statement to the following effect:

"Work Cover rely on Dr regarding the return to work - regarding the right information and that he has had a chance to look at last years claim.  Stated - 'this one is a more complicated claim'.

  1. [43]
    In cross-examination, Dr Bartels confirmed (by reference to the history of the Appellant's recovery in about eight to 10 weeks from her injury in 2012, and to her return to work) that it was reasonable to say that her present injury was more complicated because it was not getting better in the same way as the previous injury. 
  1. [44]
    The typewritten notes of the conference include the following statement by Dr Bartels about the Applicant's injury:

 "CT Scans and results have come through. …

…

CT Scan normal - quiet {sic - quite} complex radiography.  Cat Scan of neck - normal - no disc protrusions - taken last Friday. 5-6 weeks treatment - significant symptoms - the shoulder is the main issue.

…

       Short term assistance [from physio] during and slightly after [physio]

…

7 weeks post injury - difficult initially as physio was difficult to get to.  Sue is stating pain is greater than when first occurred.  Using pain relief and Voltaren Gel. 4-6 week conservative treatment.  Bursitis would generally resolve.  Moving into something that would require far more intensive treatment.  Sub-Acromial Bursitis and Tendonitis, Acromial Clavicular Oasteoarthritis. (sic)

…

May 2012, moderate Osteoarthritis- Acromial showing a previous AC Joint degeneration - on prior MRI and specialist.  Don't need to dwell on it."

  1. [45]
    Although he did not recall the discussion in that detail, when cross-examined                Dr Bartels did not dispute the record of what he said.  In particular, he confirmed that there was clinical and radiological evidence of tendinitis in her shoulder which is usually due to a pull or a fall such as what occurred to the Appellant on 11 July 2013. 
  1. [46]
    In relation to the next steps in the treatment of the Appellant and her return to work program, Dr Bartels is recorded as saying:

"Came in ½ way through treatment [changed of specialist].  Sue is reluctant for injections or surgery.  Would have intervened with Cortisone Injection under ultrasound.  If that fails - would look at further referral, fairly likely - operative.  Now for Susan and I have a talk regarding future treatment.

…

Long term - local anaesthetic - may have - Frozen Shoulder.  Adhesive capsulitis, 18 months to resolve/surgery.  Need to be proactive regarding shoulder due to time spent it becomes a Frozen Shoulder.  Sue has the right to go with treatment that she prefers.

…

Need to look at pain relief and treatment - next step.

…

Did DT diversional therapy] come up previously?

…

Supernumery would be good.

Extended claim with pain - depressing."

  1. [47]
    In cross-examination, Dr Bartels confirmed that, although he did not know if he used the word "depressing," he would have commented that it was an extended claim because of the timeframes involved, and that there was pain involved. 
  1. [48]
    When cross-examined about the recorded reference by him to a frozen shoulder,         Dr Bartels stated, in effect, that:
  1. (a)
    during the month or two that he was involved with the Appellant's treatment there was no clinical suggestion of adhesive capsulitis (something that was borne out in correspondence from Dr Hammond in early October 2013);
  1. (b)
    at that stage, on the basis of his clinical findings, he would not have felt that the Appellant had a frozen shoulder;
  1. (c)
    he would have brought up the possibility of a frozen shoulder if a patient was not managed, as the patient can proceed by natural progression to an adhesive capsulitis.
  1. [49]
    Transport difficulties and taxi fares: The Appellant gave evidence that she lived some 20 to 25 minutes' drive from her workplace.  She experienced difficulty driving her manual motor vehicle, particularly changing gears and steering, because of a "very limited use" of her right arm.  Consequently, there was an issue about how she could travel to and from work.  If she travelled by bus it would take about two and a half or three hours each way.  Apart from the length of each journey, the Appellant apparently felt "very scared" about riding in the bus and found it "very difficult because [she] couldn't sit properly and lean back" and she was "concerned about falling."  Apparently an arrangement was made whereby the fares for taxis to transport the Appellant to and from work were paid.  Initially, the Appellant thought that WorkCover was paying for them, as she had to forward the receipts to WorkCover to obtain reimbursement.  It took up to two weeks for reimbursement to be paid.  That caused financial stress to the Appellant.  Apparently, the Appellant was informed at the meeting on 28 August 2013 that the employer was paying for the taxi fares. Ms Brandon stated that she did not think that should be occurring.  The Appellant was then anxious because the situation was upsetting Ms Brandon.
  1. [50]
    The typewritten notes of what was said at the conference provide support for the Appellant's oral evidence.  Those notes also indicate that:
  1. (a)
    there was some discussion about when the Appellant moved residence, but she said that she moved to a new permanent address in June, prior to the accident;
  1. (b)
    WorkCover did not cover transport to and from work;
  1. (c)
    it was not the employer's responsibility to get people to work, and Hill View House needed to have limitations on this cost;
  1. (d)
    it was necessary to look at part drive, part public transport option (though the Appellant explained why she could not catch a bus for two hours each way); and
  1. (e)
    it was suggested that the Appellant's times could be modified so that she was not travelling at peak times.
  1. [51]
    The typewritten notes also record that there was discussion about such things as:
  1. (a)
    diversional therapy where the Appellant could spend time with residents watching exercise class and other activities;
  1. (b)
    a suitable duties plan taking into account appropriate times for breaks.
  1. [52]
    In his letter of referral to Ms Sky dated 3 September 2013 (Exhibit 20), Dr Bartels described the Appellant's work related injury as "in particular an injury to her right shoulder."  He noted that she had some underlying arthritis within the shoulder which may leave her with some residual deficits, "but she certainly has got a specific work related injury as well."  He expressed concern that it was two months since her injury and she was "still suffering significant symptoms."  Until recently, the Appellant had been reluctant to undertake the suggested further treatment.  Dr Bartels stated that the Appellant was "having a lot of issues with regard to making a return to work and her recovery."  He expressed concern "about the possible psychological issues in particular" and asked Ms Sky to see the Appellant "with regard to adjustment to injury counselling." 
  1. [53]
    On 4 September 2013, the Appellant attended on Dr Hugh Dearnley at Tweed City Family Practice.  She gave evidence that she saw Dr Dearnley because she could not drive for 30 to 35 minutes to see Dr Bartels.  Her sister took her to see the doctor.  He diagnosed a right shoulder injury, recurrence of which was consistent with her stated cause of injury (i.e., “fell over”). Dr Dearnley issued a workers' compensation medical certificate stating that the Appellant was not able to work at all from 4 to 6 September 2013 (Exhibit 4).  The Appellant started seeing Dr Dearnley when she moved to Tweed early in 2013, and described him as her “personal doctor.”
  1. [54]
    On 6 September 2013, the Appellant attended a consultation with Eli Sky, a psychologist.
  1. [55]
    On 9 September 2013, the Appellant received an HCLA injection to her right shoulder.  The Appellant said that the injection was not helpful as she had a reaction to it, and she rang the doctor later that day when she experienced “extreme pain.”  That “flare up” lasted several days and increased her pain. She could not lean or lie on that shoulder.
  1. [56]
    The medical records confirm that the Appellant contacted the receptionist at the medical centre that day, after the injection.  She reported that the pain was "now worse than original pain," and she would take Panadeine forte overnight and contact the surgery if pain did not decrease.  (Exhibit 17)
  1. [57]
    The Appellant saw Dr Bartels the next day.  His consultation notes for 10 September 2013 state:

 "Apparently poor response to IA injection but less than 24 hrs

 Despite this wants to increase hours at work for extra breaks

 ROM [range of movement] today reduced significantly

 Psychosocial factors at play

 It is unlikely she will get back to preinjury capacity

 Will need to look for another job according to I" [injury] (Exhibit 17).

  1. [58]
    In his oral evidence, Dr Bartels stated that, although it is not unusual to feel some level of pain in the first day after such an injection, the Appellant's response was "quite significant."  He thought it premature to be judging any benefit or otherwise from the injection at that stage.  However, he felt at that stage there might be some "symptom magnification occurring" and that there were some psychosocial factors, which is why he had mentioned adjustment to injury counselling at the case conference.              By this stage he had concerns that the Appellant may have some difficulty as she did not want to proceed with any further significant treatment and he had struggled to get her to have the injection (which she had agreed to only after the case conference).  She showed a great reluctance to having any surgical intervention and that is why he suggested that an upper limb specialist examine her shoulder in case there was something that Dr Bartels was missing.  Dr Bartels was concerned that, in the absence of more complete treatment (including possible surgical intervention), the Appellant might not be able to return to her former employment in the long term.  Another reason for referring the Appellant to a specialist was that Dr Bartels was questioning whether he had missed something in the shoulder joint, even something related to the first injury.  Accordingly, he referred the Appellant to Dr Hammond, an upper limb orthopaedic surgeon who specialises particularly in shoulders.
  1. [59]
    In his letter of referral to Dr Hammond dated 10 September 2013 (Exhibit 21),           Dr Bartels stated that:
  1. (a)
    although the Appellant sustained a soft tissue injury to her cervical spine and to her lumbar spine which "has gradually improved over time," her right shoulder "has persisted;"
  1. (b)
    an ultrasound of her right shoulder showed bursopathy at the subacromial region as well as acrominoclavicular arthritis;
  1. (c)
    a CT scan of her cervical spine showed no evidence of neural impingement and no fractures or pathology was identified;
  1. (d)
    the Appellant was very reluctant to have any procedures done, and it took over a month before she would agree to have an injection into the shoulder even after physiotherapy failed to show a response;
  1. (e)
    the Appellant had an injection on 9 September 2013 and saw Dr Bartels the following day complaining of "more pain than she had pre-injection;"
  1. (f)
    he had the Appellant on a return to work program doing five hours a day on five days each week in a light duties capacity;
  1. (g)
    the Appellant continued to have reduced range of motion in flexion/extension and internal rotation, and she was tender over the acromioclavicular joint;
  1. (h)
    the Appellant saw Andrew Litchfield at the request of WorkCover for a previous injury on 16 April 2012 and she was treated conservatively;
  1. (i)
    an MRI scan on 31 May 2012 revealed bursitis and acromioclavicular joint degeneration, some tendinitis, but no full thickness tears;
  1. (j)
    the Appellant had been resistant to conservative treatment, and had been made aware that she has significant degenerative changes within the shoulder;
  1. (k)
    considering that it was two months after the injury, her response had been "poor to all treatments" including physiotherapy, intra articular injection and home based exercises;
  1. (l)
    he tried the Appellant on anti-inflammatories, but she has been intolerant to them.

 Dr Bartels also wrote:

"There have been significant issues unfortunately relating to the claim and there has been some dispute between herself, her treating practitioners and also between WorkCover and her employer.  There are some significant psychosocial factors at play.

I would be grateful of your review of her regarding advice or definitive management."

  1. [60]
    On 11 September 2013, the Appellant attended on Dr Brock at Tweed Hospital because she “had trouble getting into” the doctor she had seen previously.  He diagnosed the Appellant as having a rotator cuff injury in right shoulder that was aggravated by the injection on 9 September 2013. He issued a workers' compensation medical certificate stating that the Appellant was not able to work at all from                 11 to 17 September 2013 (Exhibit 5).
  1. [61]
    The medical records of 12 September 2013 record that Dr Hammond sent the Appellant for a magnetic resonance arthrogram ("MRA") and would see her as soon as possible once the report was received.  The MRA is a high resolution scan which can detect soft tissue injury in the shoulder.  The process involves injecting a dye into the shoulder to enable a more accurate assessment to be made, e.g. whether there is a hidden injury such as a tear. 
  1. [62]
    On 17 September 2013, the Appellant attended a consultation with Ms Sky.
  1. [63]
    The MRA was taken on 19 September 2013.  Dr Bartels obtained the results of the MRA independently of Dr Hammond because he was particularly interested to ensure that was nothing was being missed, and because he knew there would be some delay between his referral of the Appellant and when Dr Hammond would see her.  The MRA showed what had been found already in the ultrasound and on the x-ray, namely that there was some mild tendinitis, acromioclavicular degeneration and no tears.  In short, there was nothing that required urgent surgical review or surgical intervention at that stage. 
  1. [64]
    The medical records for 27 September 2013 indicate that the Appellant consulted     Dr Bartels that morning in relation to right shoulder pain and again that afternoon "with a further injury" in relation to right shoulder pain.  In his oral evidence, Dr Bartels did not recall what the latter consultation was about, but suggested that he would not have been overly concerned or he would have made significant notes at that point.  Had it been a serious injury, he would have referred the Appellant for further imaging studies.  He would have made greater notes had he felt that the injury had aggravated rather than exacerbated the problem. 
  1. [65]
    On 30 September 2013, the Appellant attended the Tweed Hospital immediately after work. According to her evidence, she had experienced continuing pain, and “extreme problems” when she had to drive again. This was the first day she had to drive to and from work, and driving was aggravating her shoulder.  She was given an injection (possibly an opiate) to which she had a “severe reaction,” and she walked out of the hospital after about five hours.
  1. [66]
    The Attendance Record (Exhibit 6) contained a report to Dr Dearnley including the following text:

"Susan CARROLL presented to this facility with Pain, limb upper/shoulder.

Summary of Care

Pt has been struggling with right shoulder pain since sustaining a work-related injury 3 months ago. Pt is under Dr Bar … with regular FU - due FU tomorrow afternoon. Today pt resumed driving (required by employer) and since then has been c/o severe right shoulder pain - like her normal discomfort, but worse. Pt denies any preceding trauma and is sure the p... is secondary to the driving. Pt has been using regular panadine forte at home with PRN diazepam for breakthrough pain.

Pt also c/o generalised headache that started this morning which she associated with the shoulder pain and anxiety. Pt has regular headaches since the shoulder injury. Pt c/o photophobia, but no neck stiffness, rash or fever.

…

Pt feels the worsened shoulder pain is due to the driving and anxiety and is concerned she will not be able to manage the pain until her appointment tomorrow. …

On examination: Pt looks uncomfortable, right shoulder held in fixed position."

(Abbreviations of some words are used as the full words are not clear on Exhibit 6.)

  1. [67]
    The Appellant gave evidence that she attended on Dr Bartels twice on 1 October 2013. The first visit was in the morning in relation to her WorkCover medical certificate.  She told him that she was in a lot of pain because of her shoulder and the injection, and that she had "extreme pain through both arms."  The Appellant did not drive herself but was driven to that appointment. 
  1. [68]
    Dr Bartels recalled that the Appellant had a set appointment with him on that date and that she had apparently presented to another local doctor a day or two previously who had referred her to the Tweed Heads Hospital Accident and Emergency Department.  Her presentation on 1 October 2013 was a little unusual in that she was complaining of a lot of pain.  From his viewpoint, nothing significant had changed clinically.  He had a record from the Hospital, and he acknowledged that the pain had become "fairly intense" so that the Appellant could not wait 24 hours to see him.  He recalled that the pain relief that the Hospital gave to the Appellant can make patients drowsy and that might be why she felt "groggy" and could not attend work on that day.
  1. [69]
    Dr Bartels' notes of that consultation include “Right shoulder pain” as the reason for contact and:

 "Apparently drove to work and home yesterday

 Ended up in AE THH yesterday

 They app gave her an injection and she said was too groggy to go to work today

 …

  Ceased the most recent claim because s had largely resolved over the We

Now says that driving to work has aggravated the issues and this is the main problem.

Review

10/10/2013 after Dr Hammond.”  (Exhibit 17)

  1. [70]
    The Appellant gave evidence that she went to work and was caught when lift doors there closed on her shoulders. Ms Young took her to Dr Bartels who diagnosed an aggravation of right shoulder injury and STI left shoulder which was consistent with the Appellant's description of the cause (i.e., caught in lift doors at work).
  1. [71]
    Dr Bartels issued a workers' compensation medical certificate (Exhibit 7) that stated that the Appellant was fit to return to normal duties from 1 October 2013. It also recorded: “Aggravation from 27th September 2013 has resolved but now has ongoing issues related to original claim.”  The Appellant submits that the certificate relates to no more than the incident involving the lift doors and is not relevant to these proceedings.
  1. [72]
    On 2 October 2013, the Appellant walked to the Tweed City Family Practice for treatment of her shoulder pain. According to the Appellant's evidence, she had no money and could not afford the cost of travel to visit Dr Bartels. Because her “personal physician”, Dr Dearnley, was away the Appellant attended on Dr Ileana Timofticiuc.
  1. [73]
    Dr Timofticiuc issued a workers' compensation medical certificate that stated that the Appellant was not able to work at all on 2 October 2013 (Exhibit 8). The treatment was rest, and the certificate noted that the Appellant had an appointment with               Dr Hammond on 8 October 2013.
  1. [74]
    According to the Appellant, Dr Timofticiuc suggested that if she was in pain she should go to hospital.  The Appellant caught a taxi to the hospital where she was given some exercises to try, but apparently was provided with no treatment. 
  1. [75]
    Also on 2 October 2013, the Appellant attended her last of three appointments with Ms Sky.  The Appellant said that she understood that Dr Bartels referred her to Ms Sky in relation to returning to work, to assist with her working.  She had no problem with that until the third appointment.  The Appellant gave evidence that she found Ms Sky a "little bit" helpful, but she left the final session within the first 10 to 15 minutes because she was distressed that Ms Sky told her that Ms Gardiner from WorkCover had said that Dr Bartels said there was nothing wrong with her shoulder (a statement which, according to the Appellant, Dr Bartels denied at her next appointment with him on the basis that he would not be writing out certificates if there was not something wrong with her shoulder). The Appellant assumed that was the opinion of Dr Bartels, Ms Gardiner and Ms Sky.  Apparently she said to Ms Sky that if everybody thinks that there is nothing wrong with her shoulder, what was she doing there. 
  1. [76]
    In cross-examination, Dr Bartels did not recall a conversation with the Appellant to that effect.  He also stated that he would not have said there was nothing wrong with the Appellant's shoulder.  Ms Sky was not called to give evidence.
  1. [77]
    According to the Appellant, Ms Gardiner rang to inform the Appellant that she had not made that statement.  Ms Gardiner asked whether the Appellant would see Ms Sky again.  The Appellant did not want to do that because she "felt humiliated and embarrassed."  She agreed to see someone else, but that was never arranged. 
  1. [78]
    On 3 October 2013, the Appellant attended on Dr John Wai at the Tweed Banora Medical Centre. She sought medical attention because she was “still in pain … a lot of pain”, and went to the Tweed Banora Medical Centre because Dr Timofticiuc was unavailable and this practice was open from 7.00 am without the need to make an appointment.
  1. [79]
    Dr Wai diagnosed her condition as right shoulder pain, which was consistent with the Appellant's description of the cause (i.e., fell over at work landing on the right shoulder on 11 July 2015).[2]  He noted that this was the Appellant's first time at that practice for this injury. He issued a workers' compensation medical certificate stating that the Appellant was not able to work at all from 3 to 8 October 2013 (Exhibit 9). The treatment was painkillers, rest and awaiting specialist review.  Dr Wai also noted the referral to Dr Hammond, and that the Appellant would be reviewed on 9 October 2013.
  1. [80]
    The Appellant recalled a conversation with Ms Gardiner about that time in which Ms Gardiner indicated that she was unhappy about the Appellant's hospital or doctor visits and suggested that the Appellant was "doctor shopping."  Ms Gardiner also indicated that it would be unlikely that the Appellant would be paid for the days she had off work and that she needed to be investigated because she went to different doctors. 
  1. [81]
    On 9 October 2013, the Appellant sent an email message to Ms Gardiner which included the following:

"I rang Dr Hammond, as you told me I had to, and spoke to his nurse and she confirmed what I had been told yesterday.  That until the request for the surgery is accepted he is unable to write out a work cover certificate for me.  I was informed that I needed to attend Dr Bartels for a certificate.  I still have a standing appointment for Dr Bartels tomorrow at 4.15 pm.  Please contact me if you do not wish me to do this.

I will attend work as required tomorrow.  As I have no more assistance to get to work from Work cover or my employer I will be driving as unless I attend I will not receive my pay.  I can only reiterate that I do not feel safe or fully capable of driving with my shoulder injury and feel that it is unfair o [sic] be forced to take annual leave when it is not for relaxation as I will still be required to attend appointments as directed by your self for an injury that occurred in the work place."  (Exhibit 10)

  1. [82]
    After completing her shift at work on 10 October 2013, the Appellant attended on Dr Bartels. She drove to his surgery.  She said that her shoulder was “extremely painful and limited,” and described her state at that time as being in “a lot of pain” and “groggy”.  Dr Bartels issued a workers' compensation medical certificate that stated that the Appellant was fit for suitable duties (restricted return to work) from 10 October 2013 to 10 November 2013 (Exhibit 1). She would require specified treatment in that period (rest, analgesia Panadeine forte). Dr Bartels diagnosed right shoulder aggravation and STIC spine. He stated that the injury was consistent with the Appellant's description of cause (i.e., fall at work on 11 July 2013) but referred to a pre-existing condition involving the AC joint. He noted that she was seen by              Dr Hammond and was awaiting surgery. She was referred to a specialist to have an independent medical examination. Dr Bartels noted that the Appellant would be reviewed again on 31 October 2013.
  1. [83]
    In his consultation notes, Dr Bartels recorded:

"Pateint [sic] advised if she has any concerns re driving and medication she should not take the medication

Strongly pointed out her responsibilities to operate a car safely" (Exhibit 17).

  1. [84]
    Dr Bartels gave evidence that this was the last occasion when he saw the Appellant.  He was aware that Dr Hammond was recommending surgery, but had not received a report from him at that stage and did not know what surgery Dr Hammond was proposing.  In relation to the reference to an independent medical examination,             Dr Bartels explained that it would be useful to know how much of the injury would be accepted as work-related and what proportion might be attributable to a pre-existing condition, so that the extent of the Appellant's liability for the cost of surgery could be ascertained. 
  1. [85]
    The Appellant recalled that she was "in an extreme lot of pain" that evening.  She had taken the maximum amount of painkillers (Panadeine Forte) prescribed for that day.  Although she was allowed to take one Valium, the Appellant did not sleep very well and she did not go to work the next day. 
  1. [86]
    At 6.41 am on 11 October 2013, the Appellant sent an email to Ms Gardiner and      Ms Young reporting on her visit with Dr Bartels at approximately 6.00 pm the previous day (Exhibit 10). She continued:

"I am up this early as I am in severe pain from yesterday and was unable to take any panadine forte last night as I had taken my last 2 (only allowed 8 per day) at 5 pm while waiting for the Dr. As a result I am unable to attend work today due to severe pain.

I am going to walk to the Tweed Banora Medical Centre this morning, and hope to see the same Dr as I saw on my last visit. I am also going to ask him to take over my Work cover case as when I am in too much pain to drive I can still get there."

  1. [87]
    The Appellant explained her proposed change of doctor as follows:

"I am aware that I signed a form at work agreeing to attend a Dr of Hill View's choice and, if I remember correctly, the form also stated that I would not be out of pocket in doing so.  As neither work cover, nor Hill View are willing to assist in transport to attend Dr Bartels offices as of the 30/10/13, I feel I have no choice except to change to a Dr that I'm able to get to, both financially and physically, on my own.  This is also why I am requesting that the Dr I attend for the second opinion be as close to me as possible as I will have no assistance in attending.

I also spoke to Dr Bartels regarding Jolene informing the return to work counsellor that he, Dr bartels [sic], had told her there is nothing wrong with my shoulder.  Dr Bartels stated that he would not be writing out the work cover certificates and sending me to a specialist if that was the case." (Exhibit 10)  

  1. [88]
    As noted earlier, the Appellant was able to walk to the Tweed Banora Medical Centre where she did not need to make an appointment. In the absence of Dr Wai, she attended on Dr Comben.  He diagnosed a right "frozen shoulder", and stated that was consistent with the Appellant's stated cause of injury (i.e., fell over whilst at work landing on the right shoulder).[3]  He issued a workers' compensation medical certificate (Exhibit 2) which stated that the Appellant was not able to work at all from 11 October 2013 to 10 November 2013, and that she would require specified treatment during that period (painkillers, rest and await specialist review). She was referred to a specialist (Dr Hammond).
  1. [89]
    Dr Comben gave evidence that the Appellant told him she was not capable of attending work because she could not drive her car due to extreme pain in her shoulder.  On examination, he found her right shoulder to be "extremely limited, essentially frozen, or what I would describe as a frozen shoulder."  In particular, the examination of her arm revealed extension, abduction, and flexion of the arm all around 20° and internal rotation not going past the side of her hip.  The Appellant was in pain, was extremely uncomfortable with a very limited shoulder, and was very reluctant to move it at all.  He observed that the Appellant "was unable to move the thing." 
  1. [90]
    Dr Comben agreed that he did not know what her passive range might be, and whether she was limited by stiffness as opposed to pain.  His clinical examination of a frozen shoulder would generally involve the active range and if that was next to zero he would diagnose a frozen shoulder.  He said that he had no reason to doubt his clinical findings. 
  1. [91]
    In an email message to Ms Young and Ms Gardner on 11 October 2013, after she had returned from seeing Dr Comben, the Appellant advised that:
  1. (a)
    he had agreed to take over from Dr Bartels;
  1. (b)
    she had signed the forms for her records to be forwarded;
  1. (c)
    Dr Comben's office had sent a WorkCover certificate that morning after a visit;
  1. (d)
    Dr Comben gave the Appellant a certificate that she was unfit for work from 11 October until 11 November 2013;
  1. (e)
    Dr Comben had asked for the second opinion in relation to surgery to be organised as quickly as possible.  (Exhibit 10)
  1. [92]
    Dr Comben confirmed that during the time he was seeing the Appellant, she did not complain of pain in her neck or back as a result of the fall on 11 July 2013.
  1. [93]
    The Appellant provided him with a history including that she had a steroid injection to the shoulder, and had her shoulder investigated with an MRI scan and some dye, and had seen a specialist during the week of the consultation.  That specialist advised her to have an arthroscopy.  WorkCover requested that she have an independent opinion.  The Appellant's previous doctor, Dr Bartels, had given her a certificate for light duties.  The treatment suggested by Dr Comben was to avoid any aggravation of her injury (e.g., by avoiding certain activities) and take some pain relief and possibly some anti-inflammatory medication.  He noted that, at that stage, she was taking some Panadeine Forte and Valium, and that she was vomiting on anti-inflammatory medication.  According to Dr Comben, gastric upset is one of the common side effects of the anti-inflammatories.  He also stated that often patients have a temporary increase in symptoms before the cortisone takes effect several days after an injection. 
  1. [94]
    On 23 October 2013, the Appellant attended on Dr Gregory Freeman, an orthopaedic surgeon, for an independent medical examination and report at the request of WorkCover. Dr Freeman prepared a detailed written report to WorkCover (Exhibit 15) to which reference is made later in these reasons for decision.
  1. [95]
    The Appellant reported to Dr Freeman that she had severe pain in her arm and that it was still sensitive to touch.  She did not want her arm examined as she found some of the manipulation "really hurt."  When asked why she was carrying her arm in a particular way, he told him that it was "very painful" to let her arm hang straight down, so she kept it bent at the elbow because that seemed to take the weight off the shoulder. 
  1. [96]
    According to the Appellant, Dr Freeman stated that the nerves in her shoulder seemed to be a lot more sensitive than they should be.  He advised that that surgery would be extremely painful and was not warranted.  When asked by the Appellant if he was telling her that she was imagining it, he said no.
  1. [97]
    The Appellant had an appointment booked with Dr Bartels on 31 October 2013, but she rang the surgery and did not attend that appointment. Dr Bartels gave evidence that the Appellant decided, at some point, that she would go to the Tweed Banora Medical Centre, which was closer to her home.  He had been contacted to indicate that the Appellant had obtained a total incapacity WorkCover certificate from them. 
  1. [98]
    Dr Bartels agreed that the Appellant would have travelled some 30 to 35 minutes by road to attend his surgery.  However he stated that his practice was near where the Appellant worked and, as she was usually seeing him during her work time, he referred her to people such as a physiotherapist who practised proximate to his practice and her place of employment.  In other words, he was trying to make it as convenient for the patient as possible. He continued: "Whether she felt a need to see another doctor for convenience reasons that's entirely up to her of course."  He had some recollection of a discussion (possibly by telephone) with the Appellant to the effect that it was more convenient for her to attend another doctor and that may have been how she finally terminated her arrangement with Dr Bartels.  As it is good medical practice for continuity of records, he ensured that the records were sent to the other practice as soon as she decided to go there, possibly as early as 14 October 2013. 
  1. [99]
    On 7 November 2013, the Appellant attended on Dr Comben at the Tweed Banora Medical Centre.  He issued a workers' compensation medical certificate (Exhibit 11) which stated that the Appellant was not able to work at all from 11 November 2013 until 11 December 2013. He stated that the Appellant would require treatment (painkillers, rest, and wait specialist review - Dr Hammond) until 11 December 2013 and should be reviewed again on that date. 
  1. [100]
    Dr Comben referred to his clinical notes of a consultation on 19 November 2013 which recorded that the Appellant's right shoulder was "virtually totally frozen" and that she had "basically zero range."  Her arm was immobilised in a sling, or collar and cuff.  His working diagnosis at that point was a frozen shoulder.  The Appellant told Dr Comben that she had to walk to the surgery because she could not afford to get there by any other means. 
  1. [101]
    Dr Comben prescribed some Lyrica as a therapeutic trial for control of pain.  He also diagnosed depression with symptoms of anxiety, and prescribed an anti-depressant, Lexapro.  The Appellant informed him that she had a longstanding history of anxiety and depression, and he was aware that she had been taking Lexapro for some four to six years.
  1. [102]
    Dr Comben was aware that the Appellant was concerned about her WorkCover claim, and that she was upset and anxious about difficulties she experienced (including expense) when travelling to work and to a doctor. 
  1. [103]
    On 29 November 2013, Dr Comben sent written responses to questions asked by WorkCover Queensland.  He confirmed his diagnosis that clinically the Appellant's right shoulder is "frozen".  He wrote that she was not capable of performing duties set out in the suitable duties plan, and that she was not capable of driving herself to the workplace. He continued:

"There is controversy as to whether her symptoms are physical or psychological or a combination of both. In any case, she is incapable of working at present." (Exhibit 13)

In his oral evidence, Dr Comben said that in making that statement he was thinking that perhaps the Appellant's condition was both physical and psychological.

  1. [104]
    On 1 March 2014, Dr Comben wrote to the Appellant's solicitors and answered their questions as follows:

"1)The workplace injury sustained on July 11th was to the right shoulder; the progression of symptoms and signs in the right shoulder suggests that there was an injury to the muscles and ligaments of the rotator cuff, resulting ultimately in a "Frozen Shoulder" on the right, otherwise described as adhesive capsulitis.

2)Ms Carroll remains disabled by her right shoulder injury; she remains in pain with most normal activities involving any attempted use of the shoulder; her sleep is disturbed by right shoulder pain; she continues to have an extremely limited range of motion in all directions of movement.  She cannot drive a car.

3)Ms Carroll does have further requirement for treatment of the workplace injuries, in the form of analgesia, rest, and avoidance of aggravating activities.  It is unlikely however that surgical intervention will help or speed her recovery.

4)Ms Carroll has suffered an aggravation of her pre existent anxiety and depression as a result of her prolonged disability, and rejection of her work injury insurance claim.  She does require ongoing treatment with anti depressant medication, and supported by psychological counselling, for 6-12 months." (Exhibit 12)

  1. [105]
    The Appellant gave evidence that, during the period in late 2013 when she was seeing Dr Comben, the pain started to reduce as she got less and less movement out of the shoulder.  She agreed that the main factor limiting movement in her arm was the pain that she felt.  In her words, "It was stiff but it hurt to move it. …  So I didn't want to move it. …  when I moved it to a point that got very painful, I would stop the movement." 
  1. [106]
    At the time of the hearing, the Appellant was receiving treatment from a psychologist (Harry Theodore) to whom she was referred by Dr Comben.  She was not receiving any physiotherapy and was still taking Panadeine Forte and Valium as required. 
  1. [107]
    In her oral evidence, the Appellant confirmed that before the incident on 11 July 2013 she had suffered from anxiety and depression for a "very, very long time" and that she had received treatment in the past but had not had cause to take time off work.  She was on medication (Lexapro) for those conditions at the time of the fall, and she estimated that she had been taking the medication for four to six years.  The medication was prescribed by Dr Dearnley, who the Appellant described as "my personal doctor."  She started seeing Dr Dearnley when she moved to Tweed early in 2013, before she moved to Coolangatta.

Was the Appellant “doctor shopping?”

  1. [108]
    Before considering the overall effect of the medical evidence and the issues to be resolved in this case, it is important to record that I am satisfied that the Appellant was not "doctor shopping" (i.e., she did not consult different doctors until she found a doctor or doctors who would provide her with a diagnosis or medical certificates so that she could avoid work).  That conclusion is based on the following circumstances which are set out in some detail in the chronology in the preceding paragraphs:
  1. (a)
    the Appellant consulted Dr Bartels initially because of an arrangement between her employer and Dr Bartels (who was the employer's preferred doctor for matters such as work related injuries) and an agreement with her employer that the Appellant would not be out of pocket;
  1. (b)
    the Appellant's inability to drive herself in her manual motor vehicle for 30 to 35 minutes, and her discomfort when travelling on buses for much longer periods, made attending a doctor close to her workplace difficult and at times impracticable, especially when no-one was available to drive her;
  1. (c)
    the cost of travelling in taxis to and from appointments was substantial and one that the Appellant could not meet without significant financial stress;
  1. (d)
    at times when she experienced substantial pain but had no pre-arranged appointment with a doctor, and there was some urgency in seeking medical treatment, it was much more practicable for her to travel (sometimes by foot) to a nearby medical centre for reasonably prompt attention;
  1. (e)
    there were occasions when she needed treatment or a workers' compensation medical certificate at a time or on a day when the doctor who she had seen previously was not available.
  1. [109]
    My conclusion finds some additional support in the evidence of Dr Bartels who did not take issue with the Appellant's decision to change doctors.  He said, "Whether she felt a need to see another doctor for convenience reasons that's entirely up to her of course."  He had some recollection of a discussion with the Appellant to the effect that it was more convenient for her to attend another doctor and that may have been how she finally terminated her arrangement with Dr Bartels.  He ensured that the records were sent to the other practice as soon as she decided to go there. The same doctor wrote a letter dated 5 August 2013 to Rehab At Home in which he recorded the Appellant's return to work after less than a week to perform modified duties, and stated that she "has a positive work ethic and is keen to continue working and upgrade her activities"  (Exhibit 18).  That is consistent with the Appellant's return to work after her injury in 2012.
  1. [110]
    I note also that counsel for the Respondent expressly stated at the hearing that no aspersions were cast upon the Appellant's reasons for choosing to see Dr Comben instead of Dr Bartels, and stated that it was undoubtedly more convenient for her to see Dr Comben.  In its written submission, the Respondent expressly did not submit that the Appellant was "doctor shopping" in transferring her care to Dr Comben, who was "undoubtedly more convenient to her."  The Respondent cautions, however, that the Commission should be wary because the Appellant attended a range of medical practitioners on single occasions who certified incapacity despite her ongoing treating general practitioner, Dr Bartels, who had a better overall picture of her condition, having certified a capacity to work.

Medical evidence

  1. [111]
    As noted earlier, the issues in this appeal are whether, pursuant to ss 144A and 144B of the Act:
  1. (a)
    the Appellant had an ongoing entitlement to compensation beyond 9 October 2013 as her incapacity because of the work related injury from the fall on 11 July 2013 had not stopped at that date; and
  1. (b)
    the Appellant required medical treatment by a registered person beyond 30 November 2013 because her injury was likely to improve with further medical treatment or hospitalisation.
  1. [112]
    The Appellant submits that she need only establish incapacity and that, in the present circumstances, this incapacity is due to:
  1. (a)
    a psychiatric condition; or
  1. (b)
    an orthopaedic condition; or
  1. (c)
    more likely, a combination of both.
  1. [113]
    The outcome of the appeal turns primarily on the medical evidence. Three doctors gave evidence.  They saw the Appellant in the following order:
  1. (a)
    Dr Bartels, a general practitioner, saw and treated the Appellant between     31 July 2013 and 10 October 2013;
  1. (b)
    Dr Comben, a general practitioner, saw and treated the Appellant from        11 October 2013 until at least 1 March 2014; and
  1. (c)
    Dr Gregory Freeman, an orthopaedic surgeon, conducted an independent medical examination of the Appellant at the request of WorkCover on         23 October 2013.

It is appropriate to consider in that sequence their evidence in relation to the nature and cause of the Appellant's injury or condition. 

  1. [114]
    Dr Bartels:  The Appellant submits that the progress of her injury and her ongoing incapacity can be readily observed from the reports, clinical notes and evidence of    Dr Bartels regarding his interaction both with the Appellant and representatives of the employer and WorkCover. 
  1. [115]
    Dr Bartels' observations about the Appellant's condition on specific dates are recorded earlier in these reasons for decision.  When asked for his overall impression of how the Appellant's condition progressed over the course of his treatment, Dr Bartels said that he was concerned about the length of time it was taking for the condition to resolve given the history, the clinical findings, the radiological findings and the treatment she was receiving.  Her response had been poorer than he would have expected with this condition, particularly in response to relatively conservative management.  That was why he slowly escalated, or attempted to escalate, her treatment.  Most cases like this would have shown some improvement from conservative treatment over a period of six to eight weeks.
  1. [116]
    At the time he finished treating her, Dr Bartels considered that a frozen shoulder might develop if the Appellant were not to return to work.  That is why he was a little concerned when he heard that she had been given a total incapacity WorkCover certificate by the Tweed Banora Medical Centre.  However, he did not consider that the Appellant developed a frozen shoulder during the time he had seen her because, at least at a very early stage, “her clinical finding, range of motion, … was reasonable”.  That did not fit with a frozen shoulder (or adhesive capsulitis).  Nor did Dr Hammond's clinical findings fit with such a condition.  Dr Bartels stated specifically that the Appellant did not have signs or symptoms of a frozen shoulder on 10 October 2013, and he thought it "extremely unlikely" that she developed such symptoms in the one day between when she last saw him and when she saw Dr Comben.
  1. [117]
    At the time he last saw the Appellant, Dr Bartels suggested an independent medical examination to assess how much of what she was suffering at that time was pre-existing in nature and not work-related.  He did not have the chance to take the matter further because the Appellant changed doctors.
  1. [118]
    Dr Comben:  Dr Comben considered that the Appellant suffered from frozen shoulder or adhesive capsulitis.  He agreed that, in the circumstances applying in this case (particularly extreme pain and a limitation of range of motion in all directions), it was appropriate to look for another explanation of those symptoms and that there may have been other co-existent conditions.  However there was no evidence of other physical injury.  Consequently, if the Appellant was experiencing something apart from a frozen shoulder, it was most likely a psychological component.  Indeed, he agreed that where a patient:
  1. (a)
    has no radiological signs of injury;
  1. (b)
    fails to respond to conservative treatments like physiotherapy;
  1. (c)
    gets worse rather than better with a steroid injection and complains of severe pain afterwards;
  1. (d)
    complains of severe pain and hypersensitivity; and
  1. (e)
    has a history of anxiety and is anxious and stressed by the reaction at work and the claims process,

it is highly likely that psychosocial factors are a "strong contributing factor" to her presentation. 

  1. [119]
    As noted earlier, Dr Comben gave evidence that when he wrote to WorkCover on 29 November 2013:

"There is controversy as to whether her symptoms are physical or psychological, or a combination of both.  In any case, she is incapable of working at present"  (Exhibit 13),  

he was thinking that perhaps her condition was both physical and psychological.    However, he did not agree that the Appellant was really suffering from an anxiety problem (giving her a perception of pain and that moving her arms would hurt) rather than genuinely suffering from a frozen shoulder. 

  1. [120]
    The Appellant submits that the opinion expressed by Dr Comben is based upon his ongoing treatment of the Appellant from 11 October 2013 to the date of his report on 1 March 2014.  That opinion is informed by observation, examination and treatment on an ongoing basis as the Appellant's general practitioner.  On that basis, the Appellant submits that any opinion expressed by Dr Bartels as to her wellness on        10 October 2013 must be regarded as less reliable than the ongoing analysis by                  Dr Comben. 
  1. [121]
    Dr Freeman:  Dr Freeman saw the Appellant about three months after the incident. The MRA to which he referred was taken on 19 September 2015, some two months after the incident. He gave evidence in relation to whether the Appellant had a physical injury or a psychological injury.
  1. [122]
    Physical injury:  In his report (Exhibit 15), Dr Freeman concluded:

"Ms Carroll's history, clinical examination and investigations are not consistent with any significant anatomical lesion of her Right shoulder or cervical spine, including rotator cuff tendonitis or referred symptoms from the cervical spine.

The marked hypersensitivity crossing multiple anatomical boundaries, fear of movement, abnormal posture of her Right arm and lack of muscle wasting, plus the delayed and seemingly spontaneous onset of severe symptoms in the shoulder almost 3 weeks after the reported incident, is most consistent, in my opinion, with somatization of her anxiety disorder than any anatomical lesion."

The diagnosis is not compatible with a frozen shoulder due to the rapid onset of symptoms and the MR arthrogram not demonstrating any restriction of capsular volume.  There are no features of bone oedema syndrome affecting the clavicle or acromion to explain her hypersensitivity to light bony palpation."

  1. [123]
    Dr Freeman stated that there was no lesion shown on the MRI scan, ultrasound or x-rays that would explain the Appellant's symptoms and her refusal to move her arm and the hypersensitivity across multiple bones and nerve areas.  The symptoms were not confined to a particular nerve or group of nerves.  His medical knowledge did not permit him to explain her symptoms on an anatomical or physiological basis.                Dr Freeman agreed that he told the Appellant that sometimes nerves become            ultra-sensitive when a person is anxious.  Dr Bartels thought that was a reasonable proposition. 
  1. [124]
    When cross-examined, Dr Freeman did not agree that guarding of the Appellant's shoulder for a long period (with consequent lack of movement) could lead to adhesive capsulitis or frozen shoulder.  He explained that people can develop a frozen shoulder after injuries or surgery, but the symptoms are not as demonstrated by the Appellant.  They do not have bony tenderness in any location because that is not the nature of the condition.
  1. [125]
    Dr Freeman gave oral evidence to the effect that with most musculoskeletal injuries the onset of symptoms would be rapid if there was any trauma.  A late onset of symptoms is not usually directly related to any alleged trauma.  The Appellant's history in relation to the incident on 11 July 2013 was not consistent with an acute musculoskeletal injury to her shoulder.  However, it did accord with her experiencing pain in the shoulder blade (scapula) region, which pain could be associated with referred symptoms from the neck. 
  1. [126]
    He was not aware of any unusual incident or injury on or around 1 August 2013 that would have caused her shoulder symptoms to flare while she was performing her usual work duties.  He accepted that she returned to work that day after being on leave from immediately after the incident, and did not dispute that her symptoms flared immediately upon her return to work.  However he was not able to state that the duties that the Appellant performed on her return to work exacerbated a problem because he had not seen any anatomical lesion which would be aggravated by performing those duties.  Nor did he consider that her work duties were placing extreme stresses on her shoulder.  He was unable to explain how she would develop such extreme symptoms. 
  1. [127]
    Dr Freeman explained that his diagnosis was not compatible with a frozen shoulder because:
  1. (a)
    a frozen shoulder usually develops gradually over a three month period, and would not usually occur severely immediately and would not come on as a sudden severe pain;
  1. (b)
    if there is a significant frozen shoulder there would be a reduction in the capsular volume in the shoulder joint, but the MRA[4] did not show any restriction in the capsular volume;
  1. (c)
    with adhesive capsulitis the lining of the joint sticks together and reduces capacity, causing stiffness because the lining of the joint cannot stretch to its normal distance.  Usually the pain would be most marked at night (not during the day), patients can move their arms up to a certain point (at which they experience soreness), and they are not usually fearful to move it until it gets sore when it is restricted by the tight capsular;
  1. (d)
    zero movement would be the most extreme frozen shoulder he had seen, as people with that condition have at least some movement and only experience pain when they get to their end range. 

In this case, the criteria for adhesive capsulitis were not fulfilled.  Just because the Appellant would not let her arm move did not mean it would not or could not move if she was not fearful of what might be caused by such movement.  The fear of something does not necessarily mean that it is there.

  1. [128]
    The findings of the radiological investigations were consistent with a woman of the Appellant's age.  They did not indicate any significant mechanical lesion caused by an injury.  There were no tears in the tendons or any oedema or other things to suggest there was any acute lesion. 
  1. [129]
    Consistently with his assessment of her physical condition, Dr Freeman stated in his report that the Appellant was capable of participating in a suitable duties program not using her right hand for any tasks, as he would expect that any use of her right hand would result in reported increased symptoms in the right shoulder.  He suggested that she might be able to drive to work one-handed if a knob is fitted to the steering wheel of her vehicle.
  1. [130]
    Although the Appellant relied on some passages of Dr Freeman's report (referred to below), she criticised other aspects of Dr Freeman's evidence on the following bases:
  1. (a)
    he appeared to know for whom he had provided his report and on whose behalf he was giving evidence (i.e., she appeared to call into question his independence and integrity);
  1. (b)
    he had the limited benefit of a consultation with the Appellant lasting about half an hour during which he took a history from her and examined her;
  1. (c)
    he was unable to appreciate that the Appellant had previously complained of right shoulder symptoms and that it was a return to duties which were not "light" which caused an exacerbation of her symptoms on 1 August 2013;
  1. (d)
    he took no account of the previous injury to the right shoulder from which the Appellant completely recovered in the presence of a pre-existing anxiety disorder.
  1. [131]
    In particular, the Appellant criticised Dr Freeman's rejection of a diagnosis of "frozen shoulder" on the bases that:
  1. (a)
    there was a rapid onset of symptoms (when there was no rapid onset of symptoms on or about 1 August 2013 but rather an aggravation of symptoms already existing in the right shoulder blade region, which symptoms continued over the months when the Appellant was seeing Dr Comben, although by her account the pain started to reduce as she got less movement in her shoulder); and
  1. (b)
    an MRA demonstrated no restriction of capsular volume (even though the MRA was conducted only two months after the injury and frozen shoulder generally occurs some three months after an injury).
  1. [132]
    The Appellant submits that, given that Dr Comben had multiple consultations and a better chance to properly investigate the history of the Appellant's condition, his opinion evidence should be preferred to Dr Freeman's, particularly in relation to the diagnosis of frozen shoulder.   Indeed, both general practitioners were able to observe the Appellant over a period of time during which she developed frozen shoulder.  That period coincided with the period that Dr Freeman said was necessary for the development of such a condition. By contrast, Dr Freeman had limited contact with the Appellant and was only partially informed about relevant circumstances.
  1. [133]
    Possible psychological injury:  In relation to whether the condition was work related, Dr Freeman stated:

"My provisional diagnosis of all work related conditions is that the incident on the 11th of July, 2013 precipitated an exacerbation of Ms Carroll's pre-existing anxiety and resulted in the delayed onset somatization symptoms in her Right shoulder. However, as I have only general psychiatric training as an undergraduate and no specialist qualifications I acknowledge my lack of expertise in profering this diagnosis.

…

The relationship of the current work related diagnosis appears to be direct to the stated mechanism of injury."

  1. [134]
    Dr Freeman continued:

"As I could not identify any mechanical lesion likely to result in Ms Carroll's symptoms it is my opinion that she has marked psychosocial factors which are having an adverse impact on her treatment, recovery and return to work, and would be expected to continue to have an adverse impact in the future."

  1. [135]
    He stated that, in his opinion, the ongoing symptoms were primarily attributable to the underlying pre-existing condition of anxiety which had been aggravated by the incident on 11 July 2013, and that the prognosis was poor as treatment of anxiety did not seem to be effective. In his opinion, the prognosis hinges on successful management of the Appellant's anxiety state.
  1. [136]
    In relation to incapacity Dr Freeman stated:

"The capacity [sic – incapacity][5] due to the physical work related injury had ceased but not the injury with respect to Ms Carroll's anxiety state that is the source of the incapacity."

  1. [137]
    In his report, Dr Freeman stated that the Appellant was anxious during his examination of her.  His observations in relation to her right shoulder were as follows:

"She stood with her Right elbow flexed at 30 degrees, as she reported that eased her Right shoulder symptoms, and complained of increased pain in the shoulder when I asked her to fully extend the elbow while she was standing.

I could not detect any muscle wasting at the Right shoulder girdle and measurement of the arm and forearm circumferences did not demonstrate any wasting of the muscles in the distal Right limb either.

…

All active movements of the Right shoulder were minimal due to reported onset of pain.  Passive gleno-humeral joint abduction was achieved to 30 degrees prior to her advising of the onset of pain.  Sensation in her Right upper limb was reported as normal."  (Exhibit 15)

  1. [138]
    Dr Freeman gave oral evidence that the Appellant was extremely fearful of moving her neck and essentially refused to move her shoulder because she was fearful that something might happen.  He described the Appellant standing with her elbow flexed as an indication that she was fearful.  He stated that such people withdraw and tend to flex their elbow and keep their arm close by the side.  He could not explain why extending the Appellant's elbow (which has no significant connection to the shoulder joint) should increase pain in her shoulder.  In his opinion, that behaviour was not consistent with a normal orthopaedic injury. Hurt might be experienced in one particular spot.  A particular movement may be affected, but not all movements.          Dr Freeman was not able to perform a full examination to his satisfaction because the Appellant did not move her arm or her shoulder, and he was not able to test the actual range of movement. 
  1. [139]
    From an orthopaedic perspective, Dr Freeman did not expect that any physical therapy would assist the Appellant with her various psychological or psychiatric treatments and medications (matters that were well outside his area of expertise).  Although he observed that there is frequently an overlap between orthopaedics and the patient's psychology, his role as an orthopaedic surgeon was confined to cases where there was a physical reason why the shoulder would not move.
  1. [140]
    Dr Freeman explained the basis of his provisional diagnosis that there was an exacerbation of the Appellant's pre-existing anxiety and that resulted in the delayed onset somatisation symptoms in her right shoulder.  He drew on his experience (especially as a member of the Medical Assessment Tribunal for Q-COMP) in relation to similar cases where patients have depression and anxiety.  He considered it was relevant that the Appellant was unhappy with the duties allocated to her on her return to work and that her co-worker was complaining that the Appellant was not pulling her weight and was making that co-worker's job harder.  Dr Freeman observed that when patients get angry at workplaces their complaints tend to increase.  The Appellant's ongoing issues with her WorkCover case officer (who the Appellant felt was bullying her and not listening to her to the point where the Appellant felt afraid to call her) were "part of the whole scenario … that will increase people's anxiety."  So too was her feeling of financial stress arising from having to pay expensive taxi fares to get to work and doctor's appointments, and delays in having those expenses reimbursed.  In his opinion, "the more angry people get the higher their pain perception." 
  1. [141]
    Dr Freeman acknowledged that he had limited training in psychiatry, but felt he could make that provisional diagnosis is based on his experience in practice over many years. 
  1. [142]
    The Appellant notes that Dr Freeman stated that she was anxious during the examination and he agreed that sometimes the nerves become ultrasensitive especially when a person is anxious.  She also submits that Dr Freeman supports a case that as a result of the events of 11 July 2013 she is suffering from an incapacity which was not resolved and it is in need of further medical treatment.  In particular, the Appellant points to Dr Freeman's oral evidence that, she submits, confirmed statements in his report that support her claim.  
  1. [143]
    A careful reading of his oral evidence and the relevant statements in his report shows that:
  1. (a)
    his provisional diagnosis of "all work related conditions is that the incident on the 11th of July, 2013 precipitated an exacerbation of Ms Carroll's pre-existing anxiety" was apparently based on material supplied to him rather than his own specific knowledge and was a presumption on which he proceeded;
  1. (b)
    his conclusion that the incident precipitated an exacerbation of her pre-existing anxiety and resulted in the delayed onset somatisation symptoms in her right shoulder was the "best way [he] could assemble the information that [he] had at hand," particularly as falling backwards "would be enough to scare most people and increase their fear and anxiety at least temporarily;"
  1. (c)
    he concluded that the relationship of the current work-related diagnosis "appears to be direct to the stated mechanism of injury;"
  1. (d)
    he considered that treatment in the realm of psychiatric and pain specialist management might assist the Appellant, although his experience was that such treatments are "rarely successful" (and he described the results of pain clinics as "disappointing" and not very reliable);
  1. (e)
    he considered that the Appellant would not be expected to have the capacity to complete her ordinary job or hours in the short or long term unless successful psychiatric/psychological treatment occurs.
  1. [144]
    Dealing with differences in medical opinion evidence: Given that there were differences or conflicts between some of the expert medical opinions expressed orally and in writing in relation to the appeal, it will be necessary to make findings on the basis that I preferred the evidence of one doctor over another or others. The guidance provided by superior courts for dealing with such situations is summarised in Tyson v Blackwood[6]  as follows:
  1. (a)
    the tribunal of fact can be assisted by expert medical opinion evidence, but must weigh and determine the probabilities as to the cause of an ailment or injury having regard to the whole of the evidence;[7]
  1. (b)
    the tribunal's duty is to find ultimate facts and, so far as it is reasonably possible to do so, to look not merely at the expertise of the expert witness, but to examine the substance of the opinion expressed and (where experts differ) to apply logic and common sense to the best of its ability in deciding which view is to be preferred or which parts of the evidence are to be accepted;[8]
  1. (c)
    only when medical science denies that there is a connection between, for example, certain events and a person's death can a judge not act as if there were a connection; but if medical science is prepared to say that it is a possible view, then the judge after examining the lay evidence can decide that it is probable;[9]
  1. (d)
    the issue will not be resolved by counting witnesses;[10]
  1. (e)
    the finding could be described as one based on the credibility of expert witnesses, having regard to such things as whether the witnesses display signs of partisanship in the witness box or lack of objectivity, and whether they make proper concessions to the viewpoint of the other side;[11]
  1. (f)
    distinctions may be drawn on the basis of demeanour (a limited ground where experts are under consideration); qualifications, impressiveness and cogency of reasoning and exposition of reasoning; preparation for, and application to, the problem in hand; and the extent to which the witness had a correct grasp of basic, objective facts relevant to the problem;[12] and
  1. (g)
    if it is open to the tribunal to prefer one body of evidence to the other on grounds fairly discerned, the tribunal should express its reasoned preference.[13]

Explanation of dates on which payments ceased

  1. [145]
    Counsel for the Appellant asked why payments to the Appellant ceased on 9 October 2013 in relation to weekly benefits, and 30 November 2013 in relation to medical benefits.
  1. [146]
    The Respondent advised that the payment to the Appellant of weekly benefits ceased from 9 October 2013 because Dr Bartels issued a workers' compensation medical certificate on 10 October 2013 (Exhibit 1) that stated that the Appellant could return to work on suitable duties from 10 October 2013 until 10 November 2013.  Consequently the Appellant did not have an incapacity for work within the meaning of s 144A of the Act. WorkCover had reason to believe that the Appellant did not have any ongoing shoulder injury arising from the fall. That view was confirmed when       Dr Freeman's report dated 23 October 2013 was received. (Exhibit 15)
  1. [147]
    Dr Bartels also stated that the Appellant would require treatment in that period (comprising rest, analgesia and Panadeine forte), that she had been referred to have an independent medical examination, and that she had been seen by Dr Hammond and was awaiting surgery.[14] 
  1. [148]
    In relation to the payment of medical benefits, the Respondent states:
  1. (a)
    the treatment identified by Dr Bartels was only rest and analgesia and so not "medical treatment by a registered person" within the meaning of s 144B of the Act;
  1. (b)
    although Dr Bartels noted that the Appellant had been seen by Dr Hammond and was awaiting surgery, the proposed surgery was only diagnostic and          Dr Freeman advised WorkCover that it was not indicated; and
  1. (c)
    Dr Bartels noted that the Appellant was "to have IME" which was a reference to the examination by Dr Freeman which, as Dr Bartels said, was largely to ascertain what was work-related (and Dr Freeman determined that there was no work-related orthopaedic injury).

Accordingly, the Respondent submits, having regard to s 144B of the Act it was appropriate for WorkCover to cease medical benefits as of that date.

  1. [149]
    However, the Appellant received medical benefits payments during the period that      Dr Bartels stated she would require treatment.  The decision to end the payment of those medical benefits from 30 November 2013, was informed by the report of the independent medical examination conducted by Dr Freeman on 23 October 2013.  It seems, however, that the decision to cease payments was delayed until 29 November 2013 when WorkCover received Dr Comben's responses to questions asked by it on 12 November 2013 (Exhibit 13).  Although in those responses Dr Comben confirmed his view that the Appellant's right shoulder was frozen and that she was incapable of working or driving herself to a workplace (whether those symptoms were physical or psychological or a combination of both), it appears that WorkCover preferred and relied on the opinion of Dr Freeman. WorkCover delayed its decision until it received the report it had requested and for which it had agreed to pay.
  1. [150]
    In light of how the Respondent framed its proffered explanation of the decision to cease medical benefit payments as at 30 November 2013, the Appellant submits that the Respondent has no idea why that date was selected and "now must trawl through the evidence attempting to find some justification for the arbitrary selection of that date."  This, she submits, simply serves to underscore the lack of any proper consideration in the formulation of the decision to cease benefits for ongoing treatment. 

Appellant's submissions

  1. [151]
    The Appellant made submissions in relation to:
  1. (a)
    what she had to prove in order that her appeal succeed; and
  1. (b)
    the evidentiary basis on which she should succeed.
  1. [152]
    The Appellant points to the decision of the Respondent from which this appeal lies that:
  • "as at 9 October 2013, Ms Carroll did not have a partial or total incapacity for work as a result of the work-related physical injury.
  • as at 30 November 2013, Ms Carroll did not require further medical treatment or hospitalisation for the management of the work-related physical injury."  (Exhibit 3 page 10)
  1. [153]
    The Appellant submits that the questions to be answered by the Commission are whether the Appellant has an incapacity and whether that incapacity arose out of or in the course of her employment and was one to which employment was a significant contributing factor.  Similar considerations apply to the need for medical treatment.
  1. [154]
    In essence, the Appellant contends that:
  1. (a)
    she had an ongoing incapacity for work beyond the date of cessation of benefits, 10 October 2013; and
  1. (b)
    she was in need of medical treatment beyond the arbitrarily selected date of 1 December 2013.

In her submission, that is all she has to establish in order to succeed in relation to both aspects of this appeal. 

  1. [155]
    The Appellant further submits that:
  1. (a)
    she has established an ongoing need for orthopaedic treatment in relation to an adhesive capsulitis; and
  1. (b)
    the evidence of Dr Freeman as to a psychiatric condition causing incapacity beyond 10 October 2013 and the need for treatment beyond 1 December 2013 is unchallenged and uncontroverted.
  1. [156]
    As noted earlier in these reasons, Dr Bartels' workers' compensation medical certificate issued on 10 October 2013 stated that:
  1. (a)
    Dr Bartels diagnosed right shoulder aggravation and STIC spine;
  1. (b)
    the injury was consistent with the Appellant's description of cause (i.e., fall at work on 11 July 2013)
  1. (c)
    the Appellant was fit for suitable duties (restricted return to work) from 10 October until 10 November 2013;
  1. (d)
    the Appellant would require specified treatment in that period (rest, analgesia Panadeine forte);
  1. (e)
    the Appellant was seen by Dr Hammond and was awaiting surgery;
  1. (f)
    the Appellant was referred to a specialist to have an independent medical examination; and
  1. (g)
    the Appellant would be reviewed again on 31 October 2013.
  1. [157]
    In her submission, the Appellant contends that the certificate relied upon by the Respondent certifies as to a worker with both an ongoing incapacity and an ongoing need for medical treatment, evaluation and assessment.  It is not on its face a clearance to return to work and does not, the Appellant submits, support the decision of the Respondent that she was fit to resume normal duties from 10 October 2013. 
  1. [158]
    The Appellant also refers to Dr Bartels' evidence that her progress was poorer than he would normally have expected with that type of condition and that her recovery was slow.  Management and clinical treatment was escalated by the instigation of          intra-articular injections, further investigation of the neck, referral to a surgeon, and referral for independent medical examination.  The Appellant submits that her failure to respond to treatment within the expected time frames or to present as a patient whose response did not go as smoothly as expected, is not a valid reason to cease treatment or to conclude that she does not have an ongoing incapacity. 
  1. [159]
    The Appellant submits that there is no evidence to support the cessation of treatment, or the cessation of entitlement to the payment of medical and rehabilitation expenses, beyond 1 December 2013.  Rather:
  1. (a)
    further treatment was envisaged in the certificate issued by Dr Bartels on    10 October 2013 (including a review by Dr Hammond, an independent medical examination, and further review by Dr Bartels on 31 October 2013);
  1. (b)
    as at 1 December 2013, the Appellant was being treated (by Dr Comben and a psychologist Mr Theodore) in relation to ongoing physical and psychiatric problems;
  1. (c)
    even though the report from Dr Freeman expressed his opinion about the absence of the orthopaedic condition of adhesive capsulitis, he also expressed the view in his report that the Appellant suffered from an ongoing disability and required treatment for at least a psychiatric condition arising out of the event of 11 July 2013;
  1. (d)
    Dr Comben had also provided a report to WorkCover dated 29 November 2013 stating that, whether by virtue of the physical injury or a psychiatric injury or both, the Appellant was incapacitated and incapable of working at the time.
  1. [160]
    The Appellant takes issue with any suggestion that she gave a history to Dr Freeman that her shoulder symptoms did not appear until about three weeks after she returned to work in the context of performing light duties.  Rather, the Appellant states that she has always maintained that she sustained an injury to her shoulder in the event of         11 July 2013.  She complained to Dr Freeman (and he accepted this), that she had pains at the time in her shoulder blades.  Dr Freeman erroneously concluded that the Appellant returned to "light duties" only, but the evidence from the Appellant was that she was compelled to perform duties that were far from "light" and occasioned aggravation to her already existing pain in her right shoulder. 
  1. [161]
    The Appellant submits that, rather than there being no psychiatric evidence before the Commission to say there is a psychiatric injury which arises out of the event on            11 July 2013, Dr Freeman gave written and oral evidence that the psychiatric injury sustained by the Appellant arose directly out of the events of 11 July 2013. 
  1. [162]
    The Appellant relies on the following passages from Dr Freeman's report:

"My provisional diagnosis of all work related conditions is that the incident on the 11th of July, 2013 precipitated an exacerbation of Ms Carroll's pre-existing anxiety and resulted in the delayed onset somatization symptoms in her Right shoulder.

…

The relationship of the current work related diagnosis appears to be direct to the stated mechanism of injury."  (Exhibit 15)

  1. [163]
    The Appellant criticises the Respondent's reliance on those parts of Dr Freeman's report that contain the opinions as an orthopaedic surgeon while discounting his opinion in relation to the psychiatric or psychological aspects of the Appellant's condition.
  1. [164]
    In reply to any criticism that she failed to call either or both Ms Sky and Mr Theodore, the Appellant refers to "unequivocal evidence" from Dr Freeman as to the relationship between psychiatric injury and the event on 11 July 2013.  The Appellant submits that it would add little to the equation to call a psychologist who saw the Appellant on a limited number of occasions, or a psychologist who has only seen the Appellant well after the event and subsequent contraction of psychiatric illness.
  1. [165]
    The Appellant submits that the issue for the Commission to determine is whether there was an ongoing problem of either a physical or psychiatric nature.  The precise description of the condition does not determine the outcome.  Thus, for example, it is not of any moment that there may be some distinction between adhesive capsulitis and other physical problems in relation to her right shoulder.
  1. [166]
    The Appellant also refers to and seeks to draw support from an unsigned Suitable Duties Plan for the period 11 to 24 November 2013 (Exhibit 22), and submits that it is curious that she had been placed on suitable duties when her benefits have ceased allegedly due to an unrestricted ability to return to work.  The Suitable Duties Plan carries the same claim number referred to in the reasons for decision by the Respondent (Exhibit 3), its long-term goal is to "return to pre-injury duties," and it specifies details of the restrictions on her activities.  The Appellant submits that the extent of the restrictions in relation to the duties she might perform at work over a month after the cessation of her benefits are incompatible with the cessation of those benefits from 10 October 2013.  Given that Dr Bartels was no longer the Appellant's treating practitioner at the time and denied any knowledge of the Suitable Duties Plan, the Appellant submits that the existence of the plan raises serious considerations regarding the conduct of the employer and any information provided by the employer as to her fitness for work. 

Respondent's submissions

  1. [167]
    The Respondent submits that the appeal should be dismissed and the Respondent's decision dated 17 April 2014 be confirmed because the Appellant did not have an ongoing entitlement to compensation.  In summary, the Commission should be satisfied that:
  1. (a)
    there was no traumatic injury to the Appellant's right shoulder joint from the fall on 11 July 2013;
  1. (b)
    the Appellant did not sustain a frozen shoulder;
  1. (c)
    there is no evidence to support a finding that the Appellant has sustained a psychiatric injury arising out of the relevant fall or secondary to a physical injury arising out of the fall;
  1. (d)
    the Appellant did not have an ongoing entitlement if she was suffering an impairment which arose out of some other cause than the event of 11 July 2013.
  1. [168]
    Physical injury:  In summary, the Respondent submits that:
  1. (a)
    the Appellant did not call any specialist orthopaedic evidence (in relation to adhesive capsulitis or frozen shoulder);
  1. (b)
    Dr Bartels started treating her on 31 July 2013 and observed the progress of her condition;
  1. (c)
    Dr Bartels was concerned to ensure that frozen shoulder did not develop but, in his opinion, the Appellant did not have a frozen shoulder, and his evidence should be preferred;
  1. (d)
    Dr Comben (on whose evidence the Appellant relies) did not see the Appellant or start to treat her until 11 October 2013, some three months after the fall;
  1. (e)
    although Dr Comben diagnosed a frozen shoulder, that diagnosis was based on the Appellant's own reporting of her ability to move her arm and he did not attempt any physical examination of her (he did not attempt to test the passive range of motion of the shoulder) or refer her for any further MRI or MRA, or to a specialist or for examination under anaesthetic;
  1. (f)
    Dr Comben did not give any evidence that the Appellant otherwise sustained any form of traumatic injury to her right shoulder as a result of her fall on 11 July 2013, but stated  that there was no evidence of any physical injury other than the extreme limitation of the shoulder;
  1. (g)
    Dr Comben was the only doctor who made the diagnosis of a frozen shoulder and if he is wrong there is no other evidence on which the Commission could find that the Appellant has an incapacity as a result of a physical injury;
  1. (h)
    Dr Freeman examined the Appellant 12 days after she first saw Dr Comben, so it cannot be a situation where the condition arose after Dr Freeman saw her;
  1. (i)
    Dr Freeman's evidence is that the Appellant's history, clinical examination and investigations are not consistent with any significant anatomical lesion of her right shoulder or cervical spine, including rotator cuff tendonitis or referred symptoms from the cervical spine;
  1. (j)
    the Appellant did not have pain or symptoms in her right shoulder immediately after the fall (although she had symptoms in her neck, her coccyx and across her shoulder blades), and she gave a history to Dr Freeman that her shoulder symptoms did not appear until about three weeks after the fall when she returned to work in the context of performing light duties;
  1. (k)
    Dr Freeman's evidence is that the history provided by the Appellant is not consistent with any significant pathology to the right shoulder in the fall and, in particular, if the Appellant had sustained a significant shoulder injury in the fall then she would have had symptoms fairly rapidly afterwards;
  1. (l)
    there was no radiological evidence of a traumatic lesion from the fall;
  1. (m)
    the evidence of Dr Freeman, as an orthopaedic surgeon, and Dr Bartels, who treated the Appellant for the first period after her fall, should be preferred to that of Dr Comben;
  1. (n)
    the evidence of the doctors is to the effect that the Appellant was displaying the types of signs and symptoms which were out of the ordinary, or beyond what one would expect from the type of physical injury complained of (extreme pain in the shoulder, no active range of motion, hypersensitivity, and a reluctance to move her shoulder at all);
  1. (o)
    frozen shoulder is generally an insidious onset condition which gradually manifests itself so that patients realise they have stiffness after a while, it does not normally present as sudden onset of pain as the Appellant reported;
  1. (p)
    the symptoms experienced by the Appellant (including an inability or unwillingness to move the arm at all) were not the typical symptoms of frozen shoulder;
  1. (q)
    if she had a frozen shoulder, there would be evidence of that condition developing some two months after it commenced (at the time when the Appellant was complaining to Dr Bartels of severe and increasing right shoulder pain), but the MRA showed no restriction of the capsules and that is strong evidence to suggest that the Appellant did not have a frozen shoulder at that stage or any other stage;
  1. (r)
    the Commission should be satisfied that there was no traumatic injury to the Appellant's right shoulder from the fall, and that she did not suffer from a frozen shoulder;
  1. (s)
    the Appellant's claim for a "right shoulder, paraspinal injury and left lateral neck musculoskeletal injury" was accepted and any neck injury resolved quickly.
  1. [169]
    The Respondent also takes issue with the Appellant's assertion that the tasks she was required to perform on her return to work aggravated her injuries.  The Respondent submits that:
  1. (a)
    the Appellant led no medical evidence addressing the manner in which the mechanism of any tasks she was required to perform on returning to work aggravated any injuries that she sustained in the fall on 11 July 2013;
  1. (b)
    Dr Freeman's evidence is that the symptoms in the right shoulder joint (as opposed to the shoulder blade) which emerged when she started performing those duties did not arise out of the fall given the absence of symptoms there previously or any other evidence of injury to the shoulder joint from the fall; and
  1. (c)
    Dr Freeman also gave evidence that there was no anatomical lesion to be aggravated and that the work of the Appellant was required to perform would not give rise to the severe symptoms she complained of. 
  1. [170]
    Accordingly, the Respondent submits that:
  1. (a)
    the medical evidence is compelling that there is no ongoing physical injury to the Appellant's right shoulder which is causing any incapacity; and
  1. (b)
    the Appellant has not discharged the onus of proving that her appeal should succeed on the basis that she suffered an injury to her right shoulder.
  1. [171]
    Psychological or psychiatric injury: In summary, the Respondent made oral and written submissions to the effect that:
  1. (a)
    although the Appellant was treated by two psychologists,  there is no specialist psychiatric or psychological evidence before the Commission to say that there is a psychiatric injury which arises out of her fall on 11 July 2013;
  1. (b)
    none of the medical certificates in evidence referred to a psychiatric injury;
  1. (c)
    the Appellant had a very long history of anxiety symptoms and had been on medication for four to six years in relation to her anxiety;
  1. (d)
    although Dr Freeman suggested that, in the absence of an orthopaedic diagnosis, there must be a psychological explanation for the Appellant's condition (i.e. an exacerbation of her pre-existing anxiety condition), Dr Freeman acknowledged that he is not a psychiatrist, and only had undergraduate training in that respect, and was relying on his experience which suggests that there might be a psychological element;
  1. (e)
    Dr Bartels noted that psychosocial factors appear to be involved in the Appellant's presentation, and Dr Comben acknowledged the psychological aspect and conceded that he could not be certain if her symptoms are physical or psychological;
  1. (f)
    the evidence shows that the stress the Appellant experienced related to occurrences after the incident on 11 July 2013 (including the way in which she was treated at work in terms of the duties she was directed to perform and the response of a co-worker that the Appellant was not pulling her weight, and apparent personality conflict with her WorkCover claims officer,  financial stresses arising from the cost of transport to and from her place of work and the places where she received medical and rehabilitation treatment and delays in the reimbursement of taxi fares, and her anxiety about the nature and purpose of the case conference on 28 August 2013) rather than as a consequence of the incident itself;
  1. (g)
    Dr Freeman noted that any sources of stress can increase people's pain perception;
  1. (h)
    as a consequence of his concerns about the Appellant's symptoms                    over-reflecting the clinical and radiological findings and about her lack of appropriate response to treatment, Dr Bartels recommended that she have some adjustment to injury counselling and, as a result, the Appellant saw psychologist Eli Sky on three occasions;
  1. (i)
    Ms Sky was not called to give evidence and, had she been likely to give evidence that there was a psychological or psychiatric condition arising out of the fall, the Appellant would have called her;
  1. (j)
    although the Appellant also gave evidence that she was receiving counselling from Harry Theodore, he was not called to give evidence that her condition arises out of the fall on 11 July 2013 or out of her accepted shoulder injury;
  1. (k)
    there was no evidence before WorkCover, and there is no evidence before the Commission, on which it can be decided that the Appellant sustained a psychiatric injury as a result of the fall at work on 11 July 2013;
  1. (l)
    if there has been an exacerbation of her pre-existing anxiety condition, that exacerbation arose out of what happened subsequent to her injury not as a result of falling on 11 July 2013;
  1. (m)
    although the Appellant had made a workers' compensation claim in relation to a right shoulder injury, she did not make a workers' compensation claim in respect of a psychological injury or an aggravation of a pre-existing psychological injury. 
  1. [172]
    The Respondent submits that a proper analysis of a psychiatric condition requires consideration of a range of factors including the patient's full psychiatric and personal history, a thorough examination of the apparent stressors, a mental state examination, possibly psychological and/or pharmaceutical testing, and then a clinical impression based on expertise and training.  That process is necessary both for establishing a diagnosis and for establishing the aetiology of any condition.
  1. [173]
    The Respondent accepts that:
  1. (a)
    the Appellant had a pre-existing psychiatric condition;
  1. (b)
    the condition might have been aggravated by circumstances occurring in mid-to-late-2013;
  1. (c)
    there is some evidence that the Appellant is suffering some psychological symptoms; and
  1. (d)
    it is possible that there is a manifestation of those psychological symptoms in her presentation with right arm and shoulder symptoms. 
  1. [174]
    However, the evidence is that the right shoulder symptoms did not begin until some weeks after the fall and so are unlikely to be related to the fall, whether those symptoms have an organic or a psychological basis.  The Respondent submits that there is no proof that the Appellant's condition arises out of the fall on 11 July 2013 or injuries arising from that fall.  There might have been entirely external factors at play.
  1. [175]
    The Respondent submits that, because there is no evidence that the Appellant sustained a psychological injury as a result of the trauma of the fall, she cannot have a compensable secondary psychological injury relating to shoulder symptoms which did not arise out of the fall.  The psychological evidence is not sufficient for the Commission to conclude that a psychological injury arose secondary to the relatively minor accepted physical injuries from the fall.  However, the evidence is that the right shoulder symptoms did not begin until some weeks after the fall and so are unlikely to be related to the fall, whether those symptoms have an organic or a psychological basis.
  1. [176]
    To the extent that the Appellant complains about the treatment she received from a co-worker, if that was a stressor then the likelihood is that her complaint is of mistreatment or bullying in the workplace which arises in the context of her having had a fall, but not necessarily because of it .  In that case, the Appellant may be able to make a separate stress claim in relation to those workplace events and any psychological injury that arises out of them.  But, the Respondent submits, this claim relates to her shoulder injury from that fall.  Similar considerations apply with respect to her relationship with her WorkCover claims officer and her treatment by her employer subsequent to the injury.  The Respondent contends that it does not know what other factors may have been involved or how any relevant stressors relate to her prior history.
  1. [177]
    Although Dr Freeman postulated (in the absence of evidence of an orthopaedic injury) a possible explanation for the Appellant's presentation, he did not take a detailed history from the Appellant with respect to her anxiety and did not make a detailed attempt to identify the relevant aetiology of any condition.  The Commission would not be able to make a conclusion based on Dr Freeman's hypotheses outside his area of expertise as an orthopaedic surgeon.  Indeed the Commission should not, on the one hand, reject the evidence of Dr Freeman within his specialty of orthopaedic surgery while simultaneously acting on his hypothesis as to a psychiatric diagnosis in relation to which he expressly acknowledges his lack of expertise to do so (and in the absence of any specialist psychiatric or psychological evidence).
  1. [178]
    The Respondent does not asked the Commission to disregard entirely Dr Freeman's psychiatric hypothesis which, the Respondent submits, is more than likely the reason for the Appellant's continuing perception of symptoms.  However, the Respondent submits that the Commission would not be satisfied that there is evidence that any psychiatric condition leading to somatisation of symptoms arises out of the event on 11 July 2013. 
  1. [179]
    The Respondent submits in relation to the document headed Suitable Duties Plan (Exhibit 22) that:
  1. (a)
    the document was not signed;
  1. (b)
    Dr Bartels gave evidence that it relates to a period after he ceased seeing the Appellant, and he had nothing to do with the document;
  1. (c)
    the Appellant was still employed by the employer at that time and no doubt the employer wished to continue to return her to work, but that does not mean any incapacity for full duties at that time was related to the accepted injury; and
  1. (d)
    the Commission can draw no conclusion from that document.
  1. [180]
    The Respondent submits that, in the circumstances described above, there is no evidence on which the Commission can find the Appellant has sustained a psychiatric injury arising out of the relevant fall or secondary to a physical injury arising out of that fall.
  1. [181]
    The Respondent notes that the Appellant had an accepted injury of "right shoulder, paraspinal injury and left lateral neck musculoskeletal injury.”  Dr Freeman concluded that the Appellant's history, clinical examination and investigations are not consistent with any significant anatomical lesion of her right shoulder or cervical spine.  The Respondent submits that, if there was no anatomical injury to those areas, the Appellant cannot have a secondary psychiatric injury arising out of them.  It is far more likely the exacerbation of her anxiety (if that is the cause) arose out of subsequent events.
  1. [182]
    The Respondent submits that, although the Appellant does not need to make a separate claim to psychological injury which is secondary to physical injury arising out of the fall, she does not currently have an accepted claim for such an injury.  There were no medical certificates or specialist evidence with respect to such an injury upon which such a decision could be made.  The Appellant's applications to the Respondent for review and her appeal to the Commission are based on the decision to cease her benefits for her accepted claim.  They have not been framed as a challenge to any decision or non-decision by WorkCover to not identify and accept a separate psychological injury.  Any such challenge would need to go through the insurer and the review process before it could be the subject of appeal to the Commission.
  1. [183]
    The Respondent rejects the Appellant's submission that a psychiatric injury in this case is a primary injury arising from the fall on 11 July 2013.  It makes that submission on the basis that:
  1. (a)
    there is no evidence, including from the Appellant, to suggest that the fall caused her particular distress or a particular fright or otherwise had the effect, of itself, of exacerbating her anxiety;
  1. (b)
    the Appellant did not complain to her general practitioner or anyone else of stress or anxiety arising from the incident or otherwise in the period between the fall and when her shoulder joint symptoms started around the beginning of August 2013; and
  1. (c)
    by contrast, there is evidence of stressors which arose sometime later, including complaints about a co-worker which are said to have warranted a formal complaint, as well as financial stresses and issues with her employer and WorkCover.
  1. [184]
    Furthermore, while Dr Freeman's report ascribed the postulated diagnosis to the incident:
  1. (a)
    he was not qualified to, and did not take, a psychiatric and personal history sufficient to accurately identify the aetiology of any psychiatric condition; and
  1. (b)
    he apparently made an assumption about people's reactions, but did not base his conclusions on any information the Appellant gave him about her actual reaction to her fall.
  1. [185]
    Finally, as noted earlier, the Respondent does not assert that the Appellant was fit to resume normal duties at the time the Appellant's claim was ceased.  The Respondent acknowledges that she was continuing to complain of significant ongoing symptoms at that time.  The Respondent asserts, however, that any incapacity she had at that time did not arise out of the event of 11 July 2013. 

Consideration and conclusions

  1. [186]
    The Commission has to answer the following questions, expressed by reference to the words in ss 144A and 144B of the Act:
  • Had the Appellant's incapacity because of the work related injury stopped at          9 October 2013? 
  • Was medical treatment by a registered person no longer required for the management of the injury beyond 30 November 2013 because the injury was not likely to improve with further medical treatment or hospitalisation? (emphasis added)
  1. [187]
    I proceed on the basis that:
  1. (a)
    "the injury" referred to in s 144B(b) of the Act is "the work related injury" referred to in s 144A(1)(a);
  2. (b)
    the work-related injury was attributable to the Appellant falling at work on      11 July 2013; and
  3. (c)
    as noted at the outset, the Appellant bears the onus of proving her case on the balance of probabilities.
  1. [188]
    To answer the questions, it is necessary for the Commission to decide what constituted the Appellant's "work related injury."
  1. [189]
    There is no issue between the parties, and I find, that on the dates on which payments ceased (and subsequently) the Appellant was experiencing symptoms that impaired her capacity to return to normal work (i.e., full duties).  The issue in this appeal is not whether she had some incapacity on those dates but whether that incapacity was "because of" the work-related injury.
  1. [190]
    The evidence in relation to the work-related injury and the symptoms experienced by the Appellant (whether related to that injury or not) is quoted and summarised earlier in these reasons for decision under the headings History of medical diagnosis and treatment and Medical evidence.  It is not necessary to repeat that material.  Rather I refer to and rely on it to make the following findings in relation to the nature of the Appellant's work-related injury and to the nature of her incapacity at the dates on which payments ceased.
  1. [191]
    Physical injury: The evidence before the Commission supports the following findings:
  1. (a)
    as at 11 July 2013, the Appellant had fully recovered from the injury resulting from her fall in March 2012 and was suffering no physical impairment as a result of that fall;
  1. (b)
    as a result of her fall on 11 July 2013, the Appellant sustained physical injuries and received medical attention;
  1. (c)
    her application for workers' compensation, which was accepted, described her injuries as right shoulder, paraspinal injury and left lateral neck musculoskeletal injury;
  1. (d)
    by the time she saw Dr Bartels on 31 July 2013, the neck injury and lumbar spine injury had "largely settled" and she presented predominantly with symptoms around her right shoulder (relating to pain and restriction in the range of motion in that shoulder) and after examination Dr Bartels found some restriction (but it was nearly normal and the range of motion was "reasonable") and he recorded that no abnormality was detected;
  1. (e)
    at that time Dr Bartels concluded a diagnosis of work-related injury as right rotator cuff injury, soft tissue injury left paracervical region (whiplash injury) and aggravation to lumbar sacral spine, and he noted some improvement particularly in the lower back and, to a lesser extent, in the right shoulder and left cervical region;
  1. (f)
    Dr Bartels suggested treatments and return to work in a suitable duties capacity to avoid the Appellant developing adhesive capsulitis (in other words, she might develop a frozen shoulder if she did not return to work);
  1. (g)
    imaging studies on 5 August 2013 showed some thickening of the bursa in her right shoulder, some inflammation in the tendon around the shoulder joint, and changes around the acromial clavicular joint which suggested some arthritis (which she might have aggravated), but confirmed there was no serious pathology in the shoulder that required urgent surgical attention;
  1. (h)
    the results of those imaging studies were consistent with the results of an MRI scan on 31 May 2012 (some 13 months before her fall at Hill View Home) that revealed bursitis and acromioclavicular joint degeneration and some tendinitis, but no full thickness tears;
  1. (i)
    the Appellant has "significant degenerative changes" in her shoulder;
  1. (j)
    the injuries to her cervical spine and lumbar spine healed over succeeding weeks (they appear to have been resolved by around 22 August 2013 when the Appellant reported to Dr Bartels that all other pain had ceased, and she did not complain to Dr Comben of pain in her back or neck as a result of the fall on 11 July 2013);
  1. (k)
    diagnostic imaging (x-ray and CT scan to cervical spine) undertaken on           23 August 2013 showed that the Appellant's condition was "completely normal" and, in particular, there was no nerve impingement where the nerve exits the spinal canal, but there was clinical and radiological evidence of tendinitis and tendonysis in her shoulder which is usually due to a pull or a fall such as what occurred to the Appellant on 11 July 2013;
  1. (l)
    the Appellant experienced ongoing and increasing pain in her right shoulder when performing tasks at work and when driving her motor vehicle, and by   22 August 2013 experienced intermittent unusual pain at a level greater than six weeks previously, which symptoms exceeded what would normally be expected at that stage after the fall (particularly in light of the treatment that the Appellant had tried) and were somewhat disproportionate to the clinical and radiological and historical findings;
  1. (m)
    on the basis of Dr Bartel's evidence, the Appellant still had a "specific         work-related injury" (in addition to some underlying arthritis within the shoulder) as at 3 September 2013;
  1. (n)
    based on the MRA on about 12 September 2013, the Appellant had some mild tendinitis, acromioclavicular degeneration, and no tears (and nothing that required urgent surgical review or surgical intervention at that stage);
  1. (o)
    although her clinical condition had not changed significantly, the fairly intense pain experienced by the Appellant on or about 1 October 2013 was influenced or aggravated by an injection and by resuming driving her motor vehicle on 30 September 2013;
  1. (p)
    having examined the Appellant on a number of occasions and having regard to the various scans taken previously, by 10 October 2013, Dr Bartels:
    1. was satisfied that Appellant had right shoulder aggravation and STIC spine condition  and that the injury was consistent with the Appellant's fall at work on 11 July 2013;
    2. did not know how much of what she was suffering at that time was pre-existing in nature and not work-related;
    3. considered that the Appellant had not developed a frozen right shoulder because there was no clinical suggestion of adhesive capsulitis (i.e., she did not have signs or symptoms of that condition);
  1. (q)
    Dr Comben considered that the Appellant suffered from a frozen shoulder, but his opinion was based on the history provided by the Appellant and limited examination of her right shoulder;
  1. (r)
    Dr Freeman, who saw the Appellant 12 days after she first saw Dr Comben:
    1. did not consider that the Appellant suffered from a frozen shoulder (and gave detailed reasons why he had come to that conclusion, including by reference to the MRA taken approximately two months after the Appellant fell at work);
    2. concluded that the Appellant did not have any significant anatomical lesion of her right shoulder or cervical spine (including rotator cuff tendinitis or referred symptoms from the cervical spine);
    3. concluded that there were no features of bone oedema syndrome affecting the clavicle or acromion to explain the Appellant's hypersensitivity to light bony palpitation;
    4. could not identify any mechanical lesion likely to result in the Appellant's symptoms; and
    5. stated that the physical work-related injury had ceased;
  1. (s)
    the Appellant developed the types of signs and symptoms that were out of the ordinary or beyond what a doctor would expect from the type of physical injury of which she complained;
  1. (t)
    the Appellant protected her right shoulder and resisted close examination of it by medical practitioners and, as a consequence, there were limitations on the information available to those doctors and hence their capacity to make detailed diagnoses of the condition in her right shoulder on the basis of examination alone;
  1. (u)
    the Appellant's reluctance to submit to procedures (including injections) delayed some possible medical interventions.
  1. [192]
    To the extent that it is necessary to choose between conflicting medical opinions, I prefer the evidence of:
  1. (a)
    Dr Freeman (who I find to be a credible witness) because he is a specialist orthopaedic surgeon and because he had regard to a range of investigations including the MRA; and
  1. (b)
    Dr Bartels who had the benefit of seeing the Appellant on a regular basis from 31 July 2013 until 10 October 2013 and examining relevant images from scans of her shoulder. 
  1. [193]
    By contrast, Dr Comben's diagnosis of frozen shoulder was based on the history that the Appellant provided to him and his limited examination of her but without reference to scans or by assessing her passive range.  He referred to one criterion (i.e. limited active range) and did not know whether her range of motion was limited by stiffness or pain.  That diagnosis is not supported by the MRA and other criteria by which adhesive capsulitis is assessed.  Dr Comben also agreed that, in the circumstances applying in this case, it was appropriate to look for another explanation of the Appellant's symptoms, and that there may have been other co-existent conditions (most likely a psychological component, considered below).
  1. [194]
    Accordingly, on the basis of the evidence as a whole, I am satisfied that:
  1. (a)
    the work-related physical injury that resulted from the Appellant' fall at her place of work on 11 July 2013 comprised at most a right shoulder injury of some sort, paraspinal injury and left lateral neck musculoskeletal injury;
  1. (b)
    as at the date on which the payments ceased, that injury or those injuries were resolved or, in the case of any ongoing right shoulder injury that resulted from the fall, was sufficiently resolved such that the Appellant could have returned to work, albeit on suitable duties;
  1. (c)
    any significant physical impairment from which she suffered as at the dates on which the payments ceased was not because of the fall. 
  1. [195]
    Psychological injury:  The evidence before the Commission supports the following findings:
  1. (a)
    the Appellant had a longstanding history of anxiety and depression and had been taking Lexapro, an anti-depressant, for some four to six years before her fall on 11 July 2013;
  1. (b)
    there is no evidence that, at the time of her fall or soon afterwards, she experienced distress or anxiety because of the fall that had the effect of exacerbating her pre-existing condition;
  1. (c)
    the first medical observations that the Appellant might have been experiencing symptoms of a psychological condition were made by                Dr Bartels on 14 August 2013 when the Appellant consulted him about "anxiety - generalised" and he observed that she was anxious about the persisting symptoms in her right shoulder and the level of pain and restriction she was experiencing;
  1. (d)
    the Appellant experienced anxiety or stress in relation to a range of circumstances subsequent to her fall, including interactions in early August with a co-worker who directed her to do duties which were painful to her right shoulder, interactions with Ms Gardiner at WorkCover, anxiety and distress before and during the case conference on 28 August 2013, and the cost of travelling by taxi to and from work (including stress related to delays in reimbursement of those expenses, perceived tension with her employer about the payment of those fares, and apprehension about the lack or unsuitability of alternative forms of transport);
  1. (e)
    by 3 September 2013, Dr Bartels had developed concerns about "possible psychological issues" in relation to the Appellant's recovery and return to work and referred the Appellant to Ms Sky with regard to adjustment to injury counselling;
  1. (f)
    by 10 September 2013, Dr Bartels had identified "psychosocial factors at play" (together with some "symptom magnification occurring") and suggested that it was unlikely that the Appellant would get back to pre-injury capacity;
  1. (g)
    on 19 November 2013, Dr Comben diagnosed depression with symptoms of anxiety and prescribed Lexapro, and he subsequently stated that he thought the Appellant's symptoms were both physical and psychological;
  1. (h)
    Dr Comben:
    1. characterised the Appellant's aggravation of her pre-existent anxiety and depression as resulting from her prolonged disability and the rejection of her work injury insurance claim;
    2. was aware that the Appellant was upset and anxious about difficulties she experienced (including expense) when travelling to work and to a doctor;
    3. agreed that it was highly likely that psychosocial factors are a strong contributing factor to her presentation; but
    4. did not suggest that her psychological condition was because of the injury she sustained when she fell on 11 July 2013;
  1. (i)
    although Dr Freeman made a provisional diagnosis that the Appellant suffered from an exacerbation or aggravation of her pre-existing anxiety that arose from her fall on 11 and July 2013 and resulted in the delayed onset of somatisation symptoms in her right shoulder, he:
    1. acknowledged his lack of expertise in proffering the diagnosis (though felt he could make that provisional diagnosis based on his experience in practice over many years);
    2. stated that his opinion (that she had psychosocial factors which were having an adverse impact on her treatment, recovery and return to work) was formed as he could not identify any mechanical lesion likely to result in her symptoms;
  1. (j)
    Dr Freeman made that provisional diagnosis because there was no other anatomical or physiological explanation for the symptoms experienced by the Appellant;
  1. (k)
    Dr Freeman identified the following factors that he considered relevant to the condition that he diagnosed: the Appellant was unhappy with the duties allocated to her on return to work, a co-worker was complaining that the Appellant was not pulling her weight and was making that co-worker's job harder, the Appellant had ongoing issues with her WorkCover case officer (who the Appellant felt was bullying her and not listening to her), and she was feeling financial stress from having to pay expensive taxi fares and had been experiencing delay in having those expenses reimbursed; and
  1. (l)
    Dr Freeman expressed the view that sometimes the nerves become ultrasensitive when a person is anxious, and Dr Bartels thought that was a reasonable proposition.
  1. [196]
    Despite the absence of specialist psychiatric or psychological evidence about the nature, extent and cause of any psychiatric condition that might constitute or contribute to an impairment of the Appellant's ability to work, it is apparent that each of the doctors who gave evidence formed the opinion that part, if not all, of the Appellant's condition was psychological.  Although none of them purported to be a specialist in this area, each set out a plausible case for such a finding.
  1. [197]
    In light of those findings, and in the absence of specialist psychiatric or psychological evidence, I am satisfied that:
  1. (a)
    a significant component of, or contributing factor to, the Appellant's impairment at the time the payments ceased was a psychological or psychiatric condition (possibly described as generalised anxiety or depression) which was an aggravation of a pre-existing condition; but
  1. (b)
    to the extent that the Appellant's impairment has a psychological component, that was not because of the work-related injury sustained on 11 July 2013 but arose from a range of factors subsequent to (commencing some weeks after) the fall on that date.
  1. [198]
    It follows from those findings that, so far as s 144A of the Act is concerned, the Appellant has failed to satisfy the Commission that her incapacity because of the work-related injury had not stopped at 9 October 2013.
  1. [199]
    It follows from that conclusion that, in the absence of a work related injury at the relevant date, medical treatment by a registered person was no longer required for the management of that injury beyond 30 November 2013 because the injury was not likely to improve with further medical treatment or hospitalisation. 
  1. [200]
    Even if I am wrong in that conclusion, I note that the treatment prescribed by                Dr Bartels on 10 October 2013 was only rest and analgesia, and hence was not "medical treatment by a registered person" within the meaning of s 144B of the Act.  Furthermore, as noted earlier:
  1. (a)
    although Dr Bartels noted that the Appellant had been seen by Dr Hammond and was awaiting surgery, the proposed surgery was only diagnostic and     Dr Freeman advised WorkCover that it was not indicated; and
  1. (b)
    Dr Bartels noted that the Appellant was to have an independent medical examination which, as he said, was largely to ascertain what of the Appellant's injury or injuries was work-related (and Dr Freeman determined that there was no work-related orthopaedic injury).

Even though Dr Comben issued a workers' compensation medical certificate which stated that the Appellant was not able to work at all from 11 November 2013 until     11 December 2013, the treatment that he said the Appellant would require during that period was almost identical to that prescribed by Dr Bartels (namely painkillers, rest, and wait specialist review by Dr Hammond). 

  1. [201]
    It is apparent that, although they made different assessments of the Appellant's capacity to return to work, neither doctor recommended medical treatment by a registered person for the management of the injury[15] because the injury was likely to improve with further medical treatment or hospitalisation.  Accordingly, having regard to the terms of s 144B of the Act it was appropriate for WorkCover to cease medical benefits.

Orders

  1. [202]
    In light of the findings and conclusions set out above, it is clear that the Appellant has not discharged the onus of proof and her appeal must fail.
  1. [203]
    Accordingly, I order that:
  1. (a)
    The appeal is dismissed;
  2. (b)
    The decision of the Workers' Compensation Regulator is confirmed; and
  3. (c)
    The Appellant is to pay the costs of, and incidental to, the appeal to be agreed or, failing agreement, to be subject of a further application to the Commission.

Footnotes

[1] Rossmuller v Q-COMP (C/2009/36) at [2]; Ivey v WorkCover Queensland (1999) 162 QGIG 392.

[2] This is the first instance of a doctor recording that the Appellant landed on her right shoulder.

[3] This is the second instance of a doctor recording the Appellant's account that she landed on her right shoulder.

[4] The MRA was taken approximately two months after the incident in July 2013.  Dr Freeman gave evidence that although a frozen shoulder is something which exhibits itself generally after three months, the symptoms gradually increase over that period and are usually clearly apparent by two months for someone who examines carefully an MRA.

[5] This sentence was in response to a question: "Has the incapacity because of the work related injury stopped? "

[6] Tyson v Blackwood [2014] QIRC 191, [27].

[7] Ramsay v Watson (1961) 108 CLR 642, 645 (Dixon CJ, McTiernan, Kitto, Taylor and Windeyer JJ); see also Adelaide Stevedoring Company Ltd v Forst (1940) 64 CLR 538, 563-4 (Rich ACJ); Chattin v WorkCover Queensland (1999) 161 QGIG 531, 532-3 (Williams P), quoting Obstoj v Van de Loos (Unreported, Supreme Court of Queensland, Connolly J, 16 April 1987).

[8] Holtman v Sampson [1985] 2 Qd R 472, 474 (DM Campbell, Macrossan and Thomas JJ).

[9] Commissioner of Police v David Rea [2008] NSWCA 199, [8] (Handley AJA, with whom Allsop P and Johnson J agreed), quoting EMI (Australia) Limited v Bes (1970) 44 WCR 114, 119 (Herron CJ); see also Chattin v WorkCover Queensland (1999) 161 QGIG 531, 532 (Williams P), quoting Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190, 199-200 (Mahoney JA).

[10] Monroe Australia v Campbell (1995) 65 SASR 16, 27 (Bollen J), quoting Sotiroulis v Kosac (1978) 80 LSJS 112 (Wells J).

[11] Holtman v Sampson [1985] 2 Qd R 472, 474 (DM Campbell, Macrossan and Thomas JJ), quoting Joyce v Yeomans [1981] 1 WLR 549, [1981] 2 All ER 21, 27, (Brandon LJ).

[12] Monroe Australia v Campbell (1995) 65 SASR 16, 27 (Bollen J), quoting Sotiroulis v Kosac (1978) 80 LSJS 112 (Wells J).

[13] Monroe Australia v Campbell (1995) 65 SASR 16, 27 (Bollen J), quoting Sotiroulis v Kosac (1978) 80 LSJS 112 (Wells J).

[14] The Appellant notes that the request to Dr Hammond on 10 September 2013 for advice or definitive management remained outstanding as at the date of Dr Bartels' certificate of 10 October 2013 upon which the cessation of benefits was based.

[15] I.e., the injury that they were treating at that stage, not the work related injury.

Close

Editorial Notes

  • Published Case Name:

    Carroll v Workers' Compensation Regulator

  • Shortened Case Name:

    Carroll v Workers' Compensation Regulator

  • MNC:

    [2016] QIRC 16

  • Court:

    QIRC

  • Judge(s):

    Neate IC

  • Date:

    02 Feb 2016

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
Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538
2 citations
Jump To
Cite 1 - (1940) 64 CLR 538
Cite 2 - (1940) 64 CLR 538
Chattin v WorkCover Queensland (1999) 161 QGIG 531
3 citations
Jump To
Cite 1 - (1999) 161 QGIG 531
Cite 2 - (1999) 161 QGIG 531
Cite 3 - (1999) 161 QGIG 531
Commissioner of Police v David Rea (2008) NSWCA 199
2 citations
Jump To
Cite 1 - (2008) NSWCA 199
Cite 2 - (2008) NSWCA 199
EMI (Australia) Limited v Bes (1970) 44 WCR 114
2 citations
Jump To
Cite 1 - (1970) 44 WCR 114
Cite 2 - (1970) 44 WCR 114
Fernandez v Tubemakers of Australia (1975) 2 NSWLR 190
2 citations
Jump To
Cite 1 - (1975) 2 NSWLR 190
Cite 2 - (1975) 2 NSWLR 190
Holtman v Sampson [1985] 2 Qd R 472
3 citations
Jump To
Cite 1 - [1985] 2 Qd R 472
Cite 2 - [1985] 2 Qd R 472
Cite 3 - [1985] 2 Qd R 472
Ivey v WorkCover Queensland (1999) 162 QGIG 392
2 citations
Jump To
Cite 1 - (1999) 162 QGIG 392
Cite 2 - (1999) 162 QGIG 392
Joyce v Yeomans [1981] 1 WLR 549
2 citations
Jump To
Cite 1 - [1981] 1 WLR 549
Cite 2 - [1981] 1 WLR 549
Joyce v Yeomans [1981] 2 All E.R. 21
1 citation
Jump To
Cite 1 - [1981] 2 All E.R. 21
Monroe Australia Pty Ltd v Campbell (1995) 65 SASR 16
4 citations
Jump To
Cite 1 - (1995) 65 SASR 16
Cite 2 - (1995) 65 SASR 16
Cite 3 - (1995) 65 SASR 16
Cite 4 - (1995) 65 SASR 16
Ramsay v Watson (1961) 108 CLR 642
2 citations
Jump To
Cite 1 - (1961) 108 CLR 642
Cite 2 - (1961) 108 CLR 642
Sotiroulis v Kosac (1978) 80 LSJS 112
4 citations
Jump To
Cite 1 - (1978) 80 LSJS 112
Cite 2 - (1978) 80 LSJS 112
Cite 3 - (1978) 80 LSJS 112
Cite 4 - (1978) 80 LSJS 112
Tyson v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 191
2 citations
Jump To
Cite 1 - [2014] QIRC 191
Cite 2 - [2014] QIRC 191

Cases Citing

Case NameFull CitationFrequency
State of Queensland (Wide Bay Hospital and Health Service) v Workers' Compensation Regulator [2018] QIRC 622 citations
1

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