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Mahoney v The Workers' Compensation Regulator[2017] QIRC 66

Mahoney v The Workers' Compensation Regulator[2017] QIRC 66

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Mahoney v the Workers' Compensation Regulator [2017] QIRC 066

PARTIES: 

Mahoney, Shaun

(Appellant)

v

the Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2016/126

PROCEEDING:

Appeal against a decision of the Workers' Compensation Regulator

DELIVERED ON:

28 June 2017

HEARING DATES:

8 and 9 June 2017

HEARD AT:

Brisbane

MEMBER:

Industrial Commissioner Fisher

ORDERS:

  1. The appeal is dismissed.
  2. The decision of the Regulator dated 23 June 2016 is confirmed.
  3. The Appellant is to pay the costs of and incidental to the appeal. Failing agreement, the Regulator has liberty to apply.

CATCHWORDS:

WORKERS' COMPENSATION – APPEAL AGAINST DECISION – whether surgical treatment of the C5/6 injury was secondary to and as a result of the C6/7 injury – whether the C6/7 injury was a significant contributing factor to the C5/6 injury – whether employment itself was a significant contributing factor to any injury or aggravation of injury.

CASES:

Workers' Compensation and Rehabilitation Act 2003, s 32.

Coles Supermarkets Australia Pty Ltd v Blackwood [2015] QIRC 011

Davidson v Blackwood [2014] ICQ 008

Q-COMP AND Darren Bruce Parsons [2007] 185 QGIG 1

Jones v Dunkel [1959] HCA 8; 101 CLR 298

APPEARANCES:

Mr M. Black, Counsel instructed by Maurice Blackburn Lawyers for the Appellant.

Mr A. Kitchin, Counsel directly instructed by the Workers' Compensation Regulator, the Respondent.

Decision

  1. [1]
    Shaun Mahoney had an accepted workers' compensation claim for a left C6/7 injury in 2014.  He underwent an anterior cervical discectomy and fusion to treat the injury on 30 January 2014.  Within a short period, Mr Mahoney began to experience symptoms on his right side.  He subsequently underwent fusion surgery to the C5/6 level on 30 January 2015. 
  1. [2]
    The Appellant contends that the C5/6 injury was secondary to and as a result of the surgical treatment of the injury at C6/7 level and is an injury within the meaning of s 32 of the Workers' Compensation and Rehabilitation Act 2003.  The C5/6 injury is either an injury in the frank sense or an aggravation of a pre-existing injury.  The argument is that if the surgical treatment of the C6/7 injury was a significant contributing factor to the C5/6 injury then it follows that employment itself was a significant contributing factor.  In contrast, the Regulator contends that there is no evidence of any C6 radiculopathy nor any injury to C5/6 but if there was, it was degenerative in nature and there was no aggravation (nor new injury) caused by the operation at C6/7.  Further, employment, which includes the medical treatment for the C6/7 injury, was not a significant contributing factor.

Background

  1. [3]
    There is no dispute between the parties as to the nature of the C6/7 injury and the surgery that was performed.  There is also no dispute about the development of the right sided symptoms.  In this regard the parties prepared an agreed chronology of these symptoms.[1]  This chronology shows, and was supported by Mr Mahoney's oral evidence, that, on waking from surgery on 31 January 2014, he had right neck pain but the left arm radiculopathy that he had experienced prior to surgery had completely resolved.  The right sided pain commenced in the neck, then moved to the shoulder and by April 2014 had extended to the right little finger and outer aspect of the right hand.
  1. [4]
    On 28 August 2014, Mr Mahoney was admitted to the Wesley Hospital because of his pain.  There, he underwent radiofrequency facet joint denervation on the right side at C5/6 and C7/T1 as well as a cervical epidural steroid injection for his radicular arm pain.  His right sided pain persisted.
  1. [5]
    Mr Mahoney underwent nerve conduction studies on 20 November 2014 and 19 January 2015.  The latter was performed by Dr Saines, Neurologist, who also gave evidence in these proceedings.  He found no explanation for the right upper limb symptoms and could not reach a diagnosis.  Further, he considered:

"[t]he pain in the right neck and shoulder might arise from the C6,7 level but this is uncertain and would not really explain the other features.  He did have a cervical root block at this level that only seemed to help transiently."[2]

  1. [6]
    Mr Mahoney admitted himself to hospital in mid-January 2015 because he found the right sided pain debilitating.  Whilst in hospital Dr Tomlinson, the surgeon who performed the C6/7 surgery, recommended two nerve block procedures - one at C5/6 and the other at C7/T1.  The purpose of this surgery was to try to determine the location of the pain and to understand whether surgery was necessary.
  1. [7]
    Mr Mahoney requested morphine on his return to the ward after the first nerve block procedure at C5/6.  He noticed a significant reduction in the pain as soon as the morphine wore off and for about one to two days.[3]  The C7/T1 nerve block procedure had little effect.
  1. [8]
    Notwithstanding these findings, Mr Mahoney underwent disc fusion surgery to C5/6 on 30 January 2015.  Dr Tomlinson also performed this surgery.  He was not called as a witness for the Appellant.
  1. [9]
    Mr Mahoney continues to have right neck and shoulder pain with occasional numbness in the right hand.  His evidence about the location and frequency of the pain was vague.  He agreed he described to Associate Professor Williams the same symptoms at both examinations but said the intensity of the symptoms had decreased by the second examination.
  1. [10]
    Mr Mahoney has been unable to return to his pre-injury occupation and presently works 20 hours per week in his family's IT business.

The Orthopaedic Evidence

  1. [11]
    Dr Shaw:  Mr Mahoney was referred by his Solicitors for an independent medical examination by Dr Mark Shaw, Orthopaedic Surgeon, on 26 October 2016.  He prepared a report that day and a supplementary report dated 15 March 2017 which were tendered during his evidence.  Dr Shaw was called as a witness for the Appellant.
  1. [12]
    In his first report Dr Shaw noted that the right C6 radiculopathy developed in the early post-operative period following the surgery to C6/7.  Dr Shaw explained in his oral evidence that the right shoulder pain which developed shortly after the surgery was not necessarily radiculopathy.  The symptoms of radiculopathy were more definite around April 2014.  He had decided to call it radiculopathy in his report because the findings of the CT scan of 27 February 2014 found changes at C5/6 with mild right bony foraminal narrowing.  This may have been the cause of the shoulder pain.
  1. [13]
    Dr Shaw considered the right C6 radiculopathy was not likely to be related to work but was likely to have developed as a result of the fusion of the level below.  Dr Shaw concluded, based on the information provided by Mr Mahoney, that he had the radiculopathies successfully treated with surgery.  He noted though that Mr Mahoney continues to experience headaches.
  1. [14]
    In his second report Dr Shaw said that Dr Tomlinson proved the right arm C6 radiculopathy by performing a series of CT guided nerve root injections while Mr Mahoney was hospitalised during January 2015.  The neck pain and right arm radiculopathy was due to painful degeneration at C5/6 with right C6 nerve compression.  Good relief of right arm pain was given by the right C5/6 surgery. 
  1. [15]
    Dr Shaw noted that it is not an uncommon sequela following cervical spine fusion surgery to have the level above cause significant symptoms requiring further surgery and this is what happened in Mr Mahoney's case.  In oral evidence he said that the usual experience after such surgery is for some residual symptoms and intermittent numbness in the limb because the region is not normal after surgery.
  1. [16]
    Under cross-examination Dr Shaw acknowledged that while Associate Professor Williams had not identified any radiculopathy, from his experience, neuralgic pain from early stages of nerve root compression can sometimes be ill-defined and difficult to assess clinically. He believed Mr Mahoney's symptoms were organic and strongly rejected the proposition that Mr Mahoney had only perceived his right sided symptoms.
  1. [17]
    Associate Professor Williams:  Mr Mahoney was examined by Associate Professor Richard Williams at the request of the self-insurer on 19 November 2014 and 7 September 2015.  His three reports, dated 25 November 2014, 11 September 2015 and 16 March 2017, together with a file note dated 15 March 2017, were tendered as part of his evidence.  He was called as a witness by the Regulator.
  1. [18]
    Associate Professor Williams first examined Mr Mahoney approximately 10 months after the C6/7 surgery.  In his first report Associate Professor Williams notes:
  • Mr Mahoney experienced persistent neck and right arm pain after the C6/7 surgery.  He was referred to a pain specialist and for persistence of right arm symptoms underwent facet denervation on the right side at C4/5, C5/6 and C6/7 on 16 April 2014 and this improved his pain.
  • On 28 April 2014, after experiencing persistent right sided symptoms, Mr Mahoney underwent right sided C5/6 and C6/7 denervation requiring ICU admission post-procedural right sided paralysis.
  • Mr Mahoney attended the Wesley pain management program.  He experienced an increase of symptoms in the right arm and was hospitalised.
  1. [19]
    Associate Professor Williams describes Mr Mahoney's symptoms reported at that time as follows:

"The claimant reports persistent central lower neck pain with intermittent right arm pain of a 'shooting' nature.  He is unable to confirm the distribution of this pain and reports sensory disturbance affecting the ulnar border of the right hand.  He describes weakness, which is inconsistent in the right upper limb.  His pain is constant and wakes him at night."

  1. [20]
    He provides the following diagnoses:

"1. Left C6/7 disc osteophyte compression of left C7 nerve root with successful decompressive surgery by anterior cervical discectomy and fusion (30 January 2014).

  1. Undetermined right upper limb sensory motor disturbance without structural abnormality on radiological imaging."
  1. [21]
    After opining that the C6/7 issues were due to the natural history of the degenerative process and not work related, Associate Professor Williams said:

"Right upper limb symptoms occurring following surgery have no basis in structural abnormality of the spine as determined by multiple MRI scans since that time.  I would not consider that any right sided shoulder or upper limb symptoms have relationship (sic) to employment."

  1. [22]
    Associate Professor Williams' second examination of Mr Mahoney occurred on 7 September 2015, approximately seven months after the C5/6 surgery.  At that examination, Associate Professor Williams recorded that Mr Mahoney reported "identical" symptoms to those reported at the first examination, which occurred after the C6/7 surgery and before the C5/6 surgery.  This was despite Mr Mahoney reporting a 50-75 per cent improvement in right upper limb symptoms.  Associate Professor Williams repeated his opinion that the symptoms in relation to the C5/6 level appeared to be in keeping with the progression of a pre-existent degenerative process.  Further, there was no evidence to suggest that Mr Mahoney suffered any injury involving the C5/6 level.
  1. [23]
    In his File Note of 15 March 2017, Associate Professor Williams said:

"It is speculative, but if I were asked to say whether there was any contribution to degeneration or condition at the C5/6 level from the operation at C6/7 I would estimate the chance of contribution would be 50% but if so the extent or level of any such contribution would not be significant."

  1. [24]
    This point was pursued in cross-examination.  In particular, it was put to Associate Professor Williams that a 50 per cent chance was a reasonable probability.  The doctor gave a detailed answer, the most important parts of which are set out below:

"…  So I suppose my response there is recognising the possibility of influence on the C5/6 level from the previous surgery.  However, the circumstances of this particular case to my way of thinking and in my clinical experience make it unlikely that the C6/7 fusion has been directly responsible for that surgery being done at C5/6.  I’m more of the opinion that there was dual level pathology at the time of the surgical treatment of C6/7 even if that was no (sic) recognised at the time and that the – subsequently the C5/level has become symptomatic in the course of the degenerative process with underlying condition affecting it.  It - it’s a difficult question to answer, Commissioner, in a dogmatic way.  To summarise it's not possible to discount the effect of the C6/7 fusion on the requirements for subsequent surgery, but in my clinical experience the likelihood of that surgery being required within such a narrow time frame is unlikely compared with my experience of other cases where these situations have arisen."[4]

  1. [25]
    Associate Professor Williams also accepted that Mr Mahoney's spine was susceptible to experiencing the onset of symptoms at C5/6 but considered it was highly likely that the C5/6 level would have become symptomatic without any surgery at C6/7.  The surgery at C6/7 possibly had some effect on the time course over which the C5/6 subsequently became symptomatic to the point where further surgery was required.  He acknowledged that it was quite possible that to some extent the C6/7 spinal fusion accelerated the need for an operation at C5/6.
  1. [26]
    In relation to Mr Mahoney requesting morphine on returning to the ward after the nerve block procedure, Associate Professor Williams said that if the patient requires 15 mg of narcotic analgesia, it appears that the nerve block had not served its purpose.  When advised in cross-examination that Dr Tomlinson had referred to a 60 to 70 per cent improvement on the same day as the nerve block, Associate Professor Williams was of the view that at least part of the improvement was due to the morphine rather than the injection.

Consideration

  1. [27]
    The two Orthopaedic Surgeons accept that Mr Mahoney had a pre-existing degenerative spine but hold differing opinions as to whether the surgery at C6/7 contributed to the condition at C5/6 becoming symptomatic.  In essence, Dr Shaw considers that because of the temporal relationship between the fusion surgery and the onset of the pain the surgery made a partial but significant contribution to the right C6 radiculopathy.  He could not discount the possibility it was a complete coincidence but he thought that was unlikely.
  1. [28]
    Associate Professor Williams is of the opinion that the accepted injury at C5/6 was not employment related but was caused by the pre-existing degenerative spine becoming symptomatic.  He did not find any evidence to explain the alleged radicular symptoms and any symptoms that were experienced were related to the naturally occurring degeneration and the normal progression of the degeneration.  He considers there is no evidence to show that the operation at C6/7 contributed to any pathology or symptoms at or from the C5/6 level.[5]  While he was prepared to acknowledge that it was possible the operation at C6/7 contributed to the condition at C5/6, any such contribution would be negligible.[6]
  1. [29]
    Dr Saines could not find a neurological cause for the right sided pain in the nerve conduction study administered on 19 January 2015.
  1. [30]
    The Regulator seeks that the Commission accept the opinions of both Associate Professor Williams and Dr Saines.
  1. [31]
    The Appellant submits that Dr Shaw's opinion should be preferred to that of Associate Professor Williams for two main reasons, the first of which is:

"(a) Dr Williams proceeded on the basis that the Appellant's employment had not contributed to the C6/7 condition at all, and that the C6/7 symptomatology (and the subsequent C5/6 symptomatology) was entirely the result of the degenerative process. This is inconsistent with the fact upon which this claim proceeds: namely, that the C6/7 condition was significantly contributed to by the Appellant's employment."[7]

  1. [32]
    Although Associate Professor Williams is firmly of the view that the C6/7 injury was not work related and that the C5/6 injury could not be so described, it does not follow that his opinion about the impact of the first surgery on C5/6 can be disregarded.  His evidence canvasses the likelihood of the impact of the first surgery on the onset of the right sided symptoms as well as the role played by pre‑existing degeneration.
  1. [33]
    In Coles Supermarkets Australia Pty Ltd v Blackwood,[8] Neate C set out the following propositions drawn from judicial authority to assist in the resolution of conflict of opinion between expert medical witnesses:

"[120]  … [w]here, as in this case, there is a conflict of opinions between expert medical witnesses the following propositions drawn from judicial authorities apply:

  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;
  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;
  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;
  1. (d)
    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 objectivity, and whether they make proper concessions to the viewpoint of the other side;
  1. (e)
    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; and
  1. (f)
    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." (References omitted)
  1. [34]
    The evidence of Associate Professor Williams and Dr Shaw is examined bearing in mind these propositions.  In arriving at my findings, the arguments advanced by the Regulator have been persuasive.
  1. [35]
    The qualifications and experience of Associate Professor Williams are superior to that of Dr Shaw.  In particular, he remains a practising orthopaedic surgeon, albeit he has reduced his clinical hours at the Princess Alexandra Hospital recently.  Dr Shaw is a general orthopaedic surgeon, and although he is very experienced, he is not a spinal specialist.  He has not operated for several years.
  1. [36]
    Associate Professor Williams also holds or has held various positions including Chief of Spinal Surgery, Princess Alexandra Hospital; Associate Professor of Orthopaedics, University of Queensland and Chair of the Spinal Education Committee for orthopaedic and neurological members of the Royal Australian College of Surgeons.
  1. [37]
    Associate Professor Williams had the opportunity to examine Mr Mahoney before and after his second surgery.  He was able to compare the right sided symptoms that existed each time.  He concluded that Mr Mahoney's symptoms were identical, albeit reduced in intensity.  In contrast, Dr Shaw only examined Mr Mahoney once, approximately 18 months after the second surgery and not during the period the alleged radicular symptoms were at their worst.  Under cross-examination, Dr Shaw agreed that Associate Professor Williams had an advantage because he had a longitudinal history. 
  1. [38]
    Dr Shaw was totally dependent on Mr Mahoney's account and the medical notes of the treating specialist for his diagnosis of radiculopathy.  However, Mr Mahoney did not fully report all of his symptoms to Dr Shaw.  He did not advise of symptoms in his right hand.  Dr Shaw was also unaware that Mr Mahoney had an accepted psychological injury arising from the first surgery.
  1. [39]
    Dr Shaw was only provided with the radiological reports.  He concluded that Mr Mahoney had C6 radiculopathy because of the findings of the CT scan on 27 February 2014 which found changes at C5/6 with mild right bony foraminal narrowing.  Dr Shaw accepted in cross-examination that the report of the scan did not show nerve impingement.  He also accepted there was no objective radiological evidence showing that the surgery at C6/7 contributed to any pathology at C5/6.  He further acknowledged a retrospective diagnosis of radiculopathy from a particular level was difficult when the patient has undergone fusion surgery at that level.
  1. [40]
    Associate Professor Williams had the benefit of examining the scans as well as the radiological reports.  He could not find any evidence from the MRI and CT scans to explain the C6 radiculopathy reported by Mr Mahoney.  Dr Saines could not find any neurological cause either from his investigation.  They both hold the opinion that there were no radicular symptoms and no organic explanation for the reported symptoms.
  1. [41]
    Dr Shaw acknowledged in cross-examination that Associate Professor Williams had an advantage in diagnosis and opinion because he did not just rely on the radiological reports.  However, he noted that the treating surgeon also had access to all of that information, including the results of the nerve block procedure at the right C6 nerve sleeve and decided to operate nonetheless.
  1. [42]
    In contrast with Dr Shaw, neither Associate Professor Williams nor Dr Saines considered that Mr Mahoney had gained good relief from the nerve block procedure.  Dr Saines considered the relief to be transient.
  1. [43]
    The Appellant did not call Dr Tomlinson to give evidence.  The Regulator submits that the failure to call Dr Tomlinson, the operating surgeon, should cause a Jones v Dunkel[9]adverse inference to be drawn that he would not have assisted.  The Appellant accepted that in a narrow sense the Jones v Dunkel inference might apply but submitted that the Commission could infer that Dr Tomlinson did not have anything to say in support of the claim.  In the absence of evidence from Dr Tomlinson, the Commission is left without an understanding of the reasons the C5/6 surgery was performed and the treating surgeon's view as to the contribution of the C6/7 surgery to the subsequent condition.  As this information is relevant to the determination of this appeal, I consider an adverse inference should be drawn.
  1. [44]
    Associate Professor Williams considered the presence of identical right sided symptoms approximately eight months after the C5/6 surgery to be attributable to the progression of a pre-existing degenerative disease.  Dr Shaw expected that Mr Mahoney would have experienced relief to his right arm pain within a range of hours or one to two weeks after the C5/6 surgery.  He agreed under cross‑examination that if Mr Mahoney was still experiencing daily right shoulder, right arm pain and sensory disturbance at the right ulnar border of the hand at the time of his second examination by Associate Professor Williams that there would be a different reason for those symptoms.
  1. [45]
    The second main reason the Appellant contended the opinion of Dr Shaw should be preferred was:

"(b) Dr Williams' opinion that the C5/6 symptoms were not contributed to by the C6/7 injury proceeded on the same incorrect assumption; namely, that the C6/7 injury was not significantly contributed to by employment.  Of course, if both the C5/6 and C6/7 symptoms came on through natural progression then the timing of their onset (within about 6 months of each other) makes sense.  However, Dr Williams has simply not addressed the correct question: whether the onset of C5/6 symptoms following a work-caused problem at C6/7 can be explained entirely by natural progression."[10]

  1. [46]
    It was not for Associate Professor Williams to opine whether the onset of C5/6 symptoms following a work-related problem at C6/7 can be explained entirely by natural progression.  The role of the expert witnesses is to illuminate to the extent of their knowledge and expertise, the cause (or causes) of the Appellant's condition.[11]  This evidence may assist the Commission in making its findings.[12]
  1. [47]
    Associate Professor Williams' opinion was directed to the cause of the C5/6 symptoms and as this case has developed, whether the C6/7 surgery contributed to or caused any injury at C5/6.  The role of the Commission is to make findings of fact.  In this regard it is for the Commission to determine whether, on the balance of probabilities, the employment (in this case the accepted C6/7 operation) significantly contributed to any injury or aggravation at C5/6.
  1. [48]
    On the critical question of the contribution of the surgery at C6/7 to the C5/6 condition, Associate Professor Williams acknowledged the possibility of the first surgery contributing to the C5/6 condition but thought it was not significant and was negligible.  His file note sets out the two circumstances where surgery at one level could impact on another, adjacent level.  The first is where the plate used for the fusion may approach adjacent intervertebral discs causing adjacent segment degeneration.  He noted the MRI scan showed the plate to be in good condition and as such, this was not a cause.  Dr Shaw agreed that the position of the plates was unlikely to have been the cause.
  1. [49]
    The second cause is where a fusion can put additional mobility requirements on adjacent segments causing a faster rate of degeneration. Associate Professor Williams was of the view that symptoms would not come within days or months but would take some years.  This too, was not a cause of the symptoms.
  1. [50]
    Associate Professor Williams referred in his evidence to the dual level pathology existing at the time of the first surgery.  Given there was already degeneration at C5/6, he considered it more probable that any symptoms Mr Mahoney was experiencing were related to the degeneration.
  1. [51]
    While Dr Shaw agreed that the hastening of underlying degeneration would take years and not a matter of two months, he did not think this was Mr Mahoney's case.  Dr Shaw considered Mr Mahoney has a most susceptible spine; more susceptible to the micro trauma that occurs with the activities of daily living because of the fusion below.  Following a fusion the C6/7 level is no longer mobile and increases forces through the level above, the C5/6.  This can accelerate degeneration in a predisposed disc, cause neck pain and result in right C6 radiculopathy.  He opined the fusion was a partial but a significant contributor to the right C6 radiculopathy.
  1. [52]
    Although both doctors accept degeneration can be accelerated by the additional mobility requirements placed on adjacent segments, the evidence as to the timing of the onset of the right sided symptoms does not support Dr Shaw's opinion.  In this case the symptoms on the right side that Mr Mahoney complained of arose within a day of the surgery and at the most within the next few months.  Given this time frame I do not accept that the additional mobility requirements for the adjacent segment to become symptomatic because of the fusion below were present in this case. 
  1. [53]
    Despite the temporality of the right sided symptoms with the C6/7 fusion, where the radiological reports, scans and nerve conduction studies do not show a neurological cause of the C5/6 condition, I am unable to be satisfied on the balance of probabilities that Mr Mahoney was an exception to the two usual circumstances where surgery at one level impacts on an adjacent level.

Conclusion

  1. [54]
    Associate Professor Williams has the superior qualifications and experience of the two orthopaedic surgeons.  He was particularly advantaged by the timing of his examinations of Mr Mahoney and his examination of the scans and radiological reports.  The basis for Dr Shaw's opinion was undermined by the concessions he reasonably made in cross-examination.  For these reasons particularly, as well as the others set out above, I am persuaded by his reasoning and evidence, to accept the opinion of Associate Professor Williams in relation to whether the C5/6 injury was secondary to and as a result of the surgery performed at the C6/7 level.
  1. [55]
    His opinion, together the opinion of Dr Saines, have led me to conclude that Mr Mahoney has not discharged his onus of proof.  The Commission is unable to find on the balance of probabilities that the C5/6 injury was secondary to and as a result of the surgical treatment of the C6/7 level.  It follows then that the employment (in this case the accepted C6/7 operation) did not significantly contribute to any injury or aggravation at C5/6.  The requirements of s 32 of the Act have not been satisfied.

Orders

  1. The appeal is dismissed.
  2. The decision of the Regulator dated 23 June 2016 is confirmed.
  3. The Appellant is to pay the costs of and incidental to the appeal. Failing agreement, the Regulator has liberty to apply.

Footnotes

[1] Ex. 1.

[2] Ex. 3.

[3] T1-12.

[4] T2-11, 12.

[5] Ex. 7D.

[6] T2-15.

[7] Appellant's Outline of Submissions, [22].

[8] Coles Supermarkets Australia Pty Ltd v Blackwood [2015] QIRC 011

[9] Jones v Dunkel [1959] HCA 8; 101 CLR 298.

[10] Appellant's Outline of Submissions, [22].

[11] Davidson v Blackwood [2014] ICQ 008, [17].

[12] Q-COMP AND Darren Bruce Parsons [2007] 185 QGIG 1, 3.

Close

Editorial Notes

  • Published Case Name:

    Mahoney v the Workers' Compensation Regulator

  • Shortened Case Name:

    Mahoney v The Workers' Compensation Regulator

  • MNC:

    [2017] QIRC 66

  • Court:

    QIRC

  • Judge(s):

    Fisher IC

  • Date:

    28 Jun 2017

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
Coles Supermarkets Australia Pty Ltd v Workers' Compensation Regulator [2015] QIRC 11
2 citations
Jump To
Cite 1 - [2015] QIRC 11
Cite 2 - [2015] QIRC 11
Davidson v Blackwood [2014] ICQ 8
2 citations
Jump To
Cite 1 - [2014] ICQ 8
Cite 2 - [2014] ICQ 8
Jones v Dunkel (1959) 101 CLR 298
2 citations
Jump To
Cite 1 - (1959) 101 CLR 298
Cite 2 - (1959) 101 CLR 298
Jones v Dunkel [1959] HCA 8
2 citations
Jump To
Cite 1 - [1959] HCA 8
Cite 2 - [1959] HCA 8
Q-COMP v Parsons [2007] 185 QGIG 1
2 citations
Jump To
Cite 1 - [2007] 185 QGIG 1
Cite 2 - [2007] 185 QGIG 1

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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