Harrison v Workers' Compensation Regulator
[2018] QIRC 67
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- Harrison v Workers' Compensation Regulator[2018] QIRC 67
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Harrison v Workers' Compensation Regulator[2018] QIRC 67
Harrison v Workers' Compensation Regulator[2018] QIRC 67
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Harrison v Workers' Compensation Regulator [2018] QIRC 067 |
PARTIES: | Shayne Harrison (Appellant) v Workers' Compensation Regulator (Respondent) |
CASE NO: | WC/2017/20 |
PROCEEDING: | Appeal against decision of Workers' Compensation Regulator |
DELIVERED ON: | 8 June 2018 |
HEARING DATE: | 11 May 2018 |
MEMBER: | Vice President Linnane |
HEARD AT: | Brisbane |
ORDERS: |
|
CATCHWORDS: | WORKERS' COMPENSATION LAW – APPEAL AGAINST DECISION – APPEAL – Whether the worker's injury was compensable – Whether the worker's injury arose out of, or the course of, his employment – Whether the worker's employment was a significant contributing factor to the injury – Whether the underlying degenerative condition was a significant contributing factor to the injury – Whether there was an aggravation of an underlying degenerative condition or whether the pain suffered by the worker was a medical continuum – Held that the Appellant suffered a medical continuum of an earlier right later epicondylitis injury and that his employment was not a significant contributing factor to his injury. |
LEGISLATION: CASES: | Workers' Compensation and Rehabilitation Act 2003 s 32 Karipa v Q-COMP (WC/2011/453) -Decision Commonwealth v Beattie (1981) 53 FLR 191 JBS Australia Pty Ltd v Q-COMP (C/2012/35) - Decision Davidson v Blackwood [2014] ICQ 008 Godwin v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 206 Carman v Q-COMP (2007) 186 QGIG 512 Broom Company Pty Ltd v Semlitch (1964) 110 CLR 626 Pleming v Workers' Compensation Board of Queensland (1996) 152 QGIG 1181 |
APPEARANCES: | Dr G Cross, Counsel instructed by Patino Lawyers for the Appellant. Mr P Rashleigh, Counsel directly instructed by the Workers' Compensation Regulator. |
Reasons for Decision
[1] This is an appeal by Shayne Harrison (Appellant) against a decision of the Workers' Compensation Regulator (Regulator) dated 25 January 2017. That decision of the Regulator was to confirm a decision of Woolworths Limited (self-insurer) to reject the Appellant's application for compensation in respect of a "right forearm" injury said to have occurred on 25 February 2016 when the Appellant was "lifting heavy milk crates" at work. This is an appeal to the Queensland Industrial Relations Commission (Commission) against that decision of the Regulator.
Background
[2] The Appellant was employed by Woolworths Limited as an Order Picker at its Distribution Centre located at Larapinta. The Appellant alleges that whilst employed by Woolworths Limited he sustained an injury to his right elbow whilst lifting a heavy crate of milk from the floor to about his shoulder level on 25 February 2016. His claim for compensation was rejected by the self-insurer in a decision dated 28 September 2016 with the self-insurer contending that the symptoms suffered on 25 February 2016 were a continuum from an earlier injury suffered in or about October 2014.
[3] The Regulator confirmed the decision of the self-insurer in its decision dated 25 January 2017. The Regulator contended that whilst the personal injury sustained by the Appellant was a right lateral epicondylitis, it did not arise out of the Appellant's employment and his employment was not a significant contributing factor to the injury.
Legal Framework
[4] The appeal relates to s 32 of the Workers' Compensation and Rehabilitation Act 2003 (Act) and in particular the definition of "injury" in subsection (1). Section 32(1) of the Act provides:
"(1) An injury is a personal injury arising out of, or in the course of, employment if -
- (a)for an injury other than a psychiatric or psychological disorder - the employment is a significant contributing factor to the injury; or
…"
[5] In this case s 32(3) and s 32(4) of the Act also have relevance:
"(3) Injury includes the following -
- (a)…
- (b)an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation -
- (i)a personal injury other than psychiatric or psychological disorder;
- (ii)a disease;
- (iii)a medical condition other than a psychiatric or psychological disorder, if the condition becomes a personal injury or disease because of the aggravation.
…
- (4)For subsection (3)(b) and (ba), to remove any doubt, it is declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation."
Issues for Determination
[6] The Regulator concedes that the Appellant was a "worker" for the purpose of the Act. It is also not in dispute that the Appellant suffered a personal injury being a right elbow epicondylitis. Further, the Regulator admits that the event of 25 February 2016 is an event as defined by the Act. The issues for determination in this appeal are:
- (i)whether the Appellant's injury arose out of, or in the course of, his employment with Woolworths Limited; and
- (ii)whether his employment was a significant contributing factor to the injury sustained.
[7] The Regulator contends that the personal injury suffered by the Appellant was degenerative in nature and that such degeneration is the only significant contributing factor to any pain and discomfort suffered by the Appellant in the event of 25 February 2016. Alternatively, the Regulator contends that any pain and discomfort suffered by the Appellant on 25 February 2016 was not as a result of any alleged lifting but is as a result of a previous injury suffered by the Appellant in 2014.
[8] The Appellant, on the other hand, contends that heavy lifting at work on 25 February 2016 was a significant contributing factor to the Appellant suffering an aggravation of his right elbow epicondylitis which, prior to 25 February 2016, was stable and stationary.
Onus of Proof
[9] The hearing of the appeal was conducted as a hearing de novo. The Appellant bears the onus of proving, on the balance of probabilities, that he has an "injury" within the meaning of the Act. Whilst the onus is to be discharged on the balance of probabilities, the Commission must feel an actual persuasion before the alleged facts can be found to exist.
Appellant's Past Relevant Medical History
[10] It is not in dispute that the Appellant suffered two relevant prior compensable claims whilst he was employed at Woolworths Limited. The Appellant claimed for an injury to his right elbow suffered on 15 November 2010 which was diagnosed as "ulnar nerve instability" and an ulnar nerve transposition was recommended. A further report from an Orthopaedic Surgeon in March 2011 diagnosed a contusion to the ulnar nerve and surgery was not recommended by that Orthopaedic Surgeon. The Appellant did not undergo surgery. The Appellant was declared fit to return to full duties from 30 September 2011.
[11] The second claim for compensation was made on 23 October 2014. The claim was for compensation for a right forearm strain suffered over a period of time with the first attendance upon a General Medical Practitioner on 23 October 2014. The Appellant was diagnosed as suffering a right tennis elbow or forearm strain as a result of heavy lifting at work. The Appellant was referred to Dr Steve Andrews, Upper Limb Surgeon, who diagnosed the Appellant as suffering "lateral epicondylitis of right elbow" in a medical report dated 16 December 2014.
[12] The Appellant underwent surgery by Dr Andrews on 11 March 2015 for debridement of his right elbow epicondylitis. In a medical report dated 10 February 2016, Dr Andrews cleared the Appellant to return to normal duties and advised that the Appellant's injury was "stable and stationary". The self-insurer advised the Appellant he had no further incapacity for work. The Appellant was cleared to return to normal work duties as and from 5 November 2015. The Appellant returned to full duties on 5 November 2016.
[13] As I understand it, the Appellant's workers' compensation claims for both prior injuries were accepted for compensation.
Evidence
[14] The Appellant relied upon the evidence of the following witnesses:
- the Appellant;
- Dr Paul McEniery, Orthopaedic Surgeon; and
- Dr Suresh Duraiswamy, General Medical Practitioner.
The Respondent relied upon the evidence of Associate Professor Peter Steadman, Orthopaedic Surgeon.
[15] Appellant's Evidence: The Appellant said that following the operation on 11 March 2015 for the debridement of his right elbow epicondylitis he underwent a significant rehabilitation program. During that program he was eased back into his duties returning to full duties on 5 November 2015. During the period 5 November 2015 to 24 February 2016 he completed the full duties of his employment at Larapinta. The Appellant's evidence was that his capacity during this period was 90% to 95% of his full capacity. He said that he suffered some residual symptoms and that whilst he felt a "little bit worn out" after a day of work he "felt fine".
[16] On 25 February 2017 the Appellant said he was performing his duties by taking a pallet of milk to a particular spot in the store to replenish the milk. There were roughly 35 to 36 crates of three litre milk containers on the pallet. Each crate held six of the three litre milk containers. The crate of milk was about 1.5 metres high. The area where he was going to replenish was left with one and a-half levels of milk crates. It was his job to put the milk crates on top of the level and a-half of crates already in place.
[17] The Appellant was lifting a milk crate from his lower right-hand side and reaching up to at least shoulder height with his right arm extended when he felt like "someone's stabbed me in the arm with a steak knife" in the area where he had the surgery. At the time he was lifting the milk crate to a fifth level i.e. on top of the fourth level of milk crates.
[18] The Appellant is 170 centimetres tall and the crates are 320 millimetres high. The pallet itself was 130 to 150 millimetres high. The Appellant demonstrated the taking of the crate from his lower right hand side and reaching up to at least shoulder height with his right arm extended. Whilst he was in this position the Appellant said that he felt a stabbing pain in his right elbow in the same area as his previous right elbow surgery. The Appellant left work following the incident.
[19] The Appellant reported the incident to his supervisor. The Appellant's evidence is that he was placed on light duties at work after the incident. In answer to a question from Dr Cross, Counsel for the Appellant, about whether the Appellant sought to claim compensation for the event, the Appellant responded "[n]o, I was taken off work functions and put on light duties". The Appellant did not however receive or seek any medical treatment until 23 March 2016 i.e. almost a month after the event. Whilst the Appellant says that he went on light duties after the event on 25 February 2016 it must have been the employer who arranged for the Appellant to perform light duties without the need for a medical certificate. The first Workers' Compensation Medical Certificate (or medical certificate of any kind) was issued by Dr Duraiswamy on 23 March 2016. That was the first occasion when any restrictions on the Appellant's work duties was medically authorised.
[20] Other evidence of the Appellant however was that he was not able to do anything at home following the incident with his partner having to cut his meals and his son having to mow the lawn. That evidence does not sit well with the Appellant's evidence that he was at work although on light duties after 25 February 2016. When asked how would he describe his symptoms following the incident on 25 February 2016, the Appellant responded that prior to the incident his pain level was "nothing much at all probably 90% to 95%" (I assume that meant that he had 90% to 95% capacity at that time) and after the incident his capacity level was "zero". The Appellant further stated that he was, at the time of the hearing, at 30% (I assume capacity wise) without any activity. If he has some activity the Appellant said that is "when the medication comes in".
[21] The Appellant's evidence was that on the worst days he takes strong painkillers and utilises an ultrasound machine. If he is not using his elbow he has about 40% to 50% use of his elbow. His medications during the period included Voltaren, Emulgel, Ibuprofen or Endone.
[22] The Appellant first saw Dr Duraiswamy, of the Browns Plains Family Practice, on 23 March 2016 (one month after the event on 25 February 2016) where he complained of issues with his right elbow. Dr Duraiswamy was not the Appellant's normal General Medical Practitioner but rather a General Medical Practitioner that Woolworths Limited referred its employees to when injured as and when required. Dr Duraiswamy issued the Appellant with a WorkCover Medical Certificate. In that Medical Certificate, Dr Duraiswamy said that the Appellant suffered right "elbow tennis elbow". In that medical certificate Dr Duraiswamy did not confirm that the Appellant's stated cause of injury as "lifting heavy at work" was consistent with the Appellant's description of the cause. Dr Duraiswamy did indicate that it is his usual practice not to confirm that in the early stages.
[23] On 30 March 2016 the Appellant was referred by Dr Duraiswamy to Dr Desmond Soares, an Orthopaedic Surgeon, who examined the Appellant and provided a medical report to the Browns Plains Family Practice on 11 April 2016.
[24] Under cross-examination the Appellant said that he had not been free of pain and suffering in his forearm on 5 November 2015 when he returned to full duties. He further agreed that he told Dr Steadman that he had never been free of pain and suffering in his forearm since the operation on 11 March 2015. That is also consistent with the Clinical Notes of the Browns Plains Family Practice in respect of a visit by the Appellant on 30 March 2016 where it is noted the patient "feels never completely recovered".
[25] Dr Paul McEniery Evidence: Dr McEniery has not examined the Appellant since 25 February 2016 i.e. the date the event the subject of this proceeding occurred. Unfortunately for the Appellant, Dr Soares was unavailable to give evidence in this proceeding. The Appellant thus relied upon the evidence of Dr McEniery's who had examined the Appellant on only one occasion and that was prior to the Appellant's elbow surgery on 11 March 2015 and well prior to the event on 25 February 2016. Dr McEniery was provided with additional information by the Solicitor for the Appellant and a File Note of that conversation was tendered in evidence.
[26] Dr McEniery is an Orthopaedic Surgeon who provided a medical report dated 9 March 2015 (Exhibit 4) in relation to the lateral epicondylitis injury suffered by the Appellant in 2014. In that report Dr McEniery described the lateral epicondylitis as a degenerative condition where the work duties performed by the Appellant in 2014 had represented a "significant aggravation of his condition".
[27] As a result of Dr McEniery's abovementioned medical report, the Appellant was referred to Dr Andrews who performed debridement of the Appellant's right elbow epicondylitis on 11 March 2015. As mentioned previously Dr McEniery has not examined the Appellant since that surgery.
[28] Also in evidence is the File Note of a Telephone Conference that Solicitor for the Appellant had with Dr McEniery on 9 May 2018 (Exhibit 5). The contents of that File Note was accepted by Dr McEniery as being true and correct. Dr McEniery confirmed that an MRI scan of 4 February 2015 (prior to the event of 25 February 2016) reported "common extensor origin from the lateral epicondyle was thickened and slightly heterogeneous on both T2 and T1 sequences. The findings are consistent with lateral extensor tendinopathy".
[29] Having advised Dr McEniery the details of the event on 25 February 2016 and the after effects on the Appellant of the event, including the fact that the Appellant suffered pain in the same location as the previous pain suffered in 2014, Dr McEniery was asked whether he considered that the lifting of the milk crate above shoulder height aggravated the Appellant's underlying lateral epicondylitis. Dr McEniery indicated that the lifting of the crate of milk above shoulder height was a significant work event associated with recurrent symptoms and he would consider that to be an aggravation of the lateral epicondylitis. According to Dr McEniery, the history would suggest an aggravation. If the previous elbow condition was settling down and improving, then the Appellant probably aggravated it again rather than it being a continuum of the previous injury that the Appellant sustained in 2014.
[30] According to Dr McEniery, the fact that the Appellant had a slow recovery but had got back almost to normal and was performing his normal duties for a period of time would be inconsistent with a continuum of a previous injury. It would be more consistent with a new event aggravating his elbow. Dr McEniery said that if the Appellant suffered pain in the same location and, if he was almost pain free and doing normal duties previously, then the injury is an aggravation rather than a continuum.
[31] The mechanism of injury, according to Dr McEniery, appeared to be extending and lifting at the same time.
[32] Under cross-examination, Dr McEniery was asked whether he had seen the MRI that Dr Steadman had obtained on 31 August 2015. Dr McEniery had not been provided with that MRI. Accordingly to Dr Steadman, that MRI indicated post-surgical changes and some mild tendonitis largely post-surgical. Dr McEniery said that his definition of aggravation is a permanent worsening of a condition. He said that generally that is based on symptoms. He said he would not normally rescan an elbow unless he was looking for another source of pathology. Dr McEniery could not give an opinion on the significance of the MRI taken on 31 August 2016. He said that he respected Dr Steadman's opinion but found it hard to comment on images that Dr Steadman had reviewed but he had not.
[33] Dr McEniery did however agree that Dr Steadman would have been in the better position to provide an opinion as to what was the condition that the Appellant was suffering given that Dr Steadman saw the Appellant in August 2016 and Dr McEniery had not seen the Appellant since February 2016. Dr McEniery said that Dr Steadman would have a much more up to date history and would have had post-surgery examination of the Appellant.
[34] Under cross-examination it was suggested to Dr McEniery that if there had not been any permanent change in the Appellant's underlying condition, then there would have been no aggravation. Dr McEniery said that given that the Appellant's symptoms had increased this would mean a permanent worsening of the condition. If his symptoms have worsened and persisted then that would mean a permanent worsening of the Appellant's condition.
[35] Dr Suresh Duraiswamy: Dr Duraiswamy is a General Medical Practitioner. He had first treated the Appellant on 23 October 2014 and last saw the Appellant on 23 March 2016. When the Appellant saw him on 23 March 2016 he diagnosed the Appellant as suffering "right epicondylitis, lateral". Dr Duraiswamy noted in the Clinical Notes under "subjective" that "[p]ast right lateral epicondylitis and issues with the same now after lifting heavy weight, was operated in 2015". Dr Duraiswamy referred the Appellant for an ultrasound on his right elbow and issued the Appellant with a Workers' Compensation Medical Certificate.
[36] Dr Duraiswamy said he had not seen the Appellant since 23 March 2016 but said that if the Appellant was lifting heavy weights that would be consistent with a worker suffering injury. He then went on to say that it was consistent with a worker having tendonitis. Dr Duraiswamy agreed that Dr Steadman was in a better position than he to diagnose the Appellant's injury.
[37] Also in evidence is a File Note of a Telephone Conference between the Solicitor for the Appellant and Dr Duraiswamy on 8 May 2018 (Exhibit 3). In this File Note Dr Duraiswamy said that the Appellant saw him on 23 March 2016 complaining that "he had past lateral epicondylitis and this had reoccurred after some heavy lifting". Once again the history given to Dr Duraiswamy on this occasion was incorrect in that he was informed that the Appellant was cleared for full duties in or about February 2016. The evidence of the Appellant was that he was cleared for full duties on 5 November 2015.
[38] Other information conveyed to Dr Duraiswamy on 8 May 2018 was not correct in that he was informed that on 23 March 2016 the Appellant was performing full duties, he was lifting a 20 kilogram box of milk about his shoulder height and he suffered very severe pain from that point onwards and did not return to work. That was not however the evidence of the Appellant who said that he returned to work on light duties after 25 February 2016. The event was 25 February 2016 and not 23 March 2016 and the Appellant appears to have returned to work as indicated in the Workers' Compensation Medical Reports from the Browns Plains Family Centre after 23 March 2016. There is no medical certificate for the period 25 February 2016 to 23 March 2016. Dr Duraiswamy indicated that when he examined the Appellant on 23 March 2016 the Appellant was suffering from epicondylitis again. Dr Duraiswamy said that the lifting of the heavy milk containers above shoulder height was a heavy lift and that had aggravated a pre-existing condition. There is nothing in Dr Duraiswamy's Clinical Notes that would indicate he was considering an injury on 25 February 2016 when he made his diagnosis on 23 March 2017. Dr Duraiswamy was of the view that lifting a heavy box from the floor to about shoulder height was something that could aggravate an underlying epicondylitis.
[39] On balance Dr Duraiswamy said that as the Appellant had an operation and was cleared to work completely and then had a particular incident at work which caused severe pain, he would consider that the Appellant had aggravated a pre-existing condition.
[40] Under cross-examination, Dr Duraiswamy was advised that Dr Steadman had obtained a repeat MRI which had found no change to the Appellant's underlying condition, and that only some post-surgical problems were identified. Dr Duraiswamy was asked whether, if the MRI showed those conditions, would he change his mind about his evidence and he responded "definitely".
[41] Associate Professor Peter Steadman: Dr Steadman is Associate Professor Orthopaedics (UQ), a Consultant Orthopaedic Surgeon and is a Certified Independent Medical Examiner. Dr Steadman conducted an independent medical examination of the Appellant on 29 August 2016 and provided a medical report on 8 September 2016 (Exhibit 1). This examination and medical report were undertaken at the request of the self-insurer.
[42] The Appellant was provided with an explanation of the medical assessment process by Dr Steadman and he was further informed that his medical report arising out of the medical examination was to be provided to the self-insurer. The history of the accident and the mechanism of injury that the Appellant provided to Dr Steadman was as follows:
"Shayne Harrison is a 46 year old right handed man who reports that at the time of his injury he worked at Woolworths. The injury began in 2014 and was accepted without a specific event based upon the repeated activities of lifting. He said that he had multiple treatments including physiotherapy and Cortisone injections but without improvement went on to see orthopaedic surgeon Dr Steve Andrews and went on to have operative release. His postoperative period was uncomplicated and the physiotherapist assured him it would take some time to settle. Over the next 18 months he underwent a gradual lifting practice increase at work. However, he was never symptom free. In January this year he graduated to the full 18 kg and then the elbow became much more inflamed. In February he resubmitted a claim.
Further to that he went on to have an ultrasound but has had no other investigations. He had some physiotherapy but all the treatment has now ceased. He lodged a claim with the regulator on the advice of the union who told him that he could either open the old claim or accept the new claim but he said that if he accepted the new claim they would it [sic] close it.
Currently he is reporting that now that he has stopped work his elbow has improved because of completing no activity. He is taking two to four Nurofen per week and is using Emulgel one to two times per week. He said that last year he had some kidney problems. The doctor did not know what caused it but it was some sort of cystic clot that exploded, causing him to have a stent. For this reason he advises he is nervous about taking high dose anti-inflammatory tablets."
[43] In his evidence Dr Steadman was clear that the Appellant did not mention any event that specifically caused him pain.
[44] In providing his medical report, Dr Steadman had before him the ultrasound that Dr Duraiswamy had arranged which was taken on 24 March 2016 and a MRI of the Appellant's right elbow which the Dr Steadman had organised for 31 August 2016. That MRI showed post surgical changes and some mild tendinosis. The results were largely post-surgical.
[45] Dr Steadman reported:
"Shayne Harrison has a painful right elbow. I arranged for him to have an MRI to substantiate the current complaint. It does sound like one medical continuum in terms of symptoms as he never became symptom free. At least in retrospect the medical certification would suggest he was given a clearance to return to work though."
[46] In responding to specific questions asked of him by the self-insurer, Dr Steadman responded as follows:
"1. Relevant past medical history.
In the context of the current claim there is a prior claim for the same condition.
- Examination and clinical findings
Clinical findings reveal some discomfort and tenderness but no evidence of any swelling or restriction of movement.
- Would you please confirm all work-related injury diagnoses and comment on the estimated duration of any work-related injury/ies?
The work related diagnosis based upon the MRI is tennis elbow.
- Is this diagnosis consistent with the mechanism of injury? Is work a significant contributing factor to Mr Harrison's injury?
There is no doubt that this condition can continue to cause symptoms with activity.
- Is the current work related incapacity due to any underlying pre-existing condition or is it a direct result of the work related incident of 25.02.16?
The current condition more likely represents one of an ongoing medical continuum from the original injury and this likely means that he is unsuitable for his current position.
- Has any work related injury resolved or reached maximum medical improvement?
In my opinion he has reached maximum medical improvement and his problem is activity related. It would seem inevitable that he is not able to continue with heavy employment.
- If not, what treatment is required before the injuries reach maximum medical improvement? Please outline the frequency and duration of the recommended treatment.
No additional treatment would be anticipated to improve his outcome given the nature of the surgical intervention and treatment to date.
- Mr Harrison has been excluded from the workplace since the Review Unit upheld EML's decision to cease his prior claim, based on ongoing restrictions recommended by his treating medical practitioner. Dr Soares has advised him that he has a degenerative condition which will not change while he continues with heavy work – please comment on Mr Harrison's capacity to return to his role as storeperson at Woolworths Distribution Centre, detailing any restrictions you feel he may require on a permanent basis.
I would agree with Dr Soares that it seems unlikely that he would be unable [sic] to return to heavy lifting associated with pre-injury employment."
(The abovementioned numbering is different to that contained in Associate Professor's medical report.)
[47] In cross-examination a couple of errors in Dr Steadman's historical account were identified. Dr Steadman's reference to 18 months uncomplicated post-operative period was incorrect as it was an 8 month period. Dr Steadman said however that he referred to the whole period from the operation in March 2015 to when he examined the Appellant in August 2016. Similarly, the reference to the Appellant graduating to full work duties in January 2016 was inaccurate as he returned to full duties on 5 November 2015. It was further put to Dr Steadman that he did not mention the event of 25 February 2016 in his history although the letter of instruction mentions the 25 February 2016.
[48] Associate Professor Steadman was very clear that the Appellant did not mention to him any specific event let alone a specific event of 25 February 2016. Dr Steadman referred to his notes and confirmed that the Appellant did not mention any specific event. The Appellant said that he had been driving a forklift load and that picking and wrapping was required. The Appellant said that he thought he was picking up about 8 to 10 tonnes per day. Then the Appellant said that his arm got sore again, that he went to his trade union and that they advised him to either reopen his old claim or make a new claim. According to Dr Steadman's evidence, the Appellant told him that he was doing normal duties and then the elbow became sore. He then got advice from his union about what to do.
[49] According to Dr Steadman the Appellant told him that he had graduated to lifting the full 18 kilograms and then the elbow became much more inflamed and in February he went to the union and received advice about a workers' compensation claim. At no time did the Appellant articulate to Dr Steadman that there was a worsening of his symptoms.
[50] According to Dr Steadman, what the Appellant was reporting to him was a subjective increase in pain in the elbow. Dr Steadman agreed that if the Appellant was performing full duties during the period 5 November 2015 to 25 February 2016 and he was back to 90%/95% of his capacity, and following an event on 25 February 2016 he was unable to work, it showed a worsening of his condition. The Appellant also did not report being on Endone when Associate Professor Steadman examined him in August 2016.
[51] Dr Steadman agreed that if the Appellant sustained an injury on 25 February 2016 and following that, his pain levels increased and his medication increased, that there had been a change in his condition. He did not agree that it would indicate a substantial deterioration in his condition. Dr Steadman said that the Appellant had reported to him that he had improved since ceasing work.
[52] Dr Steadman stated that none of the issues raised with him in cross-examination would cause him to change his opinion. The clinical history of having surgery that has not been terribly successful, results in some perpetuation of symptoms based on a level of activity. Dr Steadman said that when a person does more activity the symptoms get worse and when they stop the activity it feels better. Dr Steadman said that the impact of activities and personal needs on the Appellant and the various other things that the Appellant reported to him were just consistent with an unsuccessful operation outcome. Dr Steadman said that is why he arranged for a new MRI to be undertaken i.e. to see if there was any evidence of a new or acute injury based upon the scanned changes. The MRI showed only postoperative changes and some ongoing mild inflammation present.
[53] Dr Desmond Soares: Dr Soares is a Orthopaedic Surgeon who provided a medical report dated 11 April 2016 which was admitted by consent. The Appellant relies upon the following opinion of Dr Soares:
"I do not believe that he can continue at his age to do such heavy manual work without aggravating his lateral epicondylitis."
Submissions
[54] Appellant's Submission: On the issue of whether an exacerbation of any injury equates to an aggravation of injury, the Appellant relies upon the decision of Deputy President O'Connor and the cases analysed in Karipa v Q-COMP[1]. I accept that an 'aggravation' of a condition can include 'exacerbation' of a condition.
[55] The Appellant submits that the issue to be determined is not a medical question. In this regard the Appellant relies upon the conclusion reached in Commonwealth v Beattie[2] where it was stated that:
"It does not follow in every case that a worker with a pre-existing injury, who carries out work and as a result suffers pain, will have suffered an aggravation of his injury. A worker whose fractured leg is encased in plaster will be unable to put it to the ground without suffering pain and other disability. But that is not a case of aggravation. In such a case any incapacity for work arises only by reason of the pre-existing injury. The evidence earlier recounted shows this to be a very different type of case. Thus each case must depend upon its own facts. For present purposes it is enough to say that pain brought on by work activity may constitute an aggravation of a pre-existing injury even though no pathological change takes place."
[56] Dr Cross, Counsel for the Appellant, submitted that a relevant consideration in this case is that the exacerbation involved continuing episodes of pain far worse than prior to the event. The decision of Hall P in JBS Australia Pty Ltd v Q-COMP[3] acknowledged that a temporary exacerbation might constitute an aggravation. A temporary increase in symptoms associated with a degenerative condition which returned to its pre-aggravation state after the cessation of symptoms, could amount to an aggravation. In the Appellant's case the symptoms have continued.
[57] As to the role of the expert in the assessment of whether the Appellant's work duties were a significant contributing factor to the injury sustained, the Appellant referred the Commission to the following in the decision of Martin J in Davidson v Blackwood[4]:
"An expert witness must not seek to substitute himself or herself for the tribunal of fact, or for the Court. In the present case, it was not for the expert witnesses called on behalf of either party to say whether or not the 2010 fall suffered during the appellant's employment was a 'substantial contributing factor' to the injuries disclosed in the wake of the 2011 incident."
[58] The Appellant submits that the role of the expert witness is "to illuminate, to the extent of their knowledge and expertise, the cause (or causes) of the aggravation of the appellant's back condition": see Godwin v Simon Blackwood (Workers' Compensation Regulator)[5]
[59] The Appellant submits that the evidence of the event was not seriously challenged, the Appellant reported it to his employer and an incident report was completed and provided to the Appellant's employer. The lodging of an incident report together with the fact that the Appellant provided a consistent history to Dr Duraiswamy on 23 March 2016 meant that the Commission could be satisfied that the event on 25 February 2016 occurred. The difficulty I have with this is that the Appellant did not give a consistent history of the event. The event of 25 February 2016 is not in Dr Duraiswamy's Clinical Notes and I have accepted Dr Steadman's evidence that the Appellant never mentioned to him any specific event including the 25 February 2016 event.
[60] The Appellant submits that the ultimate matter for determination is whether the Appellant's employment significantly contributed to the right epicondylitis or significantly contributed to an aggravation of a pre-existing right epicondylitis. It is further submitted that I should find that the Appellant's employment significantly contributed to the Appellant's injury. In this regard the Appellant points to the following:
- the Appellant had a previous right epicondylitis injury for which he underwent operative intervention on 11 March 2015;
- the Appellant was cleared for full duties as and from 5 November 2015 and his condition was said to be stable and stationary;
- there were no attendances upon any medical practitioner between being cleared for full duties until after the event of 25 February 2016. There was actually no attendance upon any medical practitioner until 23 March 2016, almost a month after the event on 25 February 2016;
- the Appellant concedes that his elbow was about 90-95% back to normal prior to the incident of 25 February 2016 and he was able to complete his full duties without restriction;
- the Appellant suffered a debilitating event on 25 February 2016 such that he has not been able to return to work. That was not consistent with the Appellant's evidence i.e. he returned to work after 25 February 2016 on light duties. The event however was not such a debilitating event as to cause the Appellant to visit a medical practitioner until a month after the event; and
- the Appellant concedes that the symptoms have eased to a degree with inactivity but are far more substantial than before the event and to a level equal to or worse than before surgery. The Appellant considers he is about 30% of his capacity.
[61] The Appellant contends that there is a direct causal link between the performance of the Appellant's work activities and the significant debilitating symptoms suffered in lifting the crates of milk about shoulder height on 25 February 2016. It is further submitted that the Appellant has discharged the onus of establishing the aggravation arose out of, or in the course of, employment and that the Appellant's employment was a significant factor to the aggravation. Further, there is proximity between the onset of pain and the Appellant's work duties. Therefore, on the balance of probability, the Appellant's employment was a significant contributing factor to the aggravation.
[62] Regulator's Submission: The Regulator accepts that the Appellant suffered an increase in his symptoms at work on 25 February 2016 as there is no evidence to the contrary. The real issue for determination is whether that activity was a significant contributing factor to that exacerbation of the pain. In this regard the Regulator submits that I can be guided by the medical evidence. I accept that submission.
[63] The Regulator contends that I have to consider whether the condition that the Appellant suffered was such that it was the only significant contributing factor in the development of his symptoms at work on 25 February 2016. On the issue of aggravation, the Regulator relies upon the decision of Carman v Q-COMP[6]. In reliance upon the decision in Federal Broom Company Pty Ltd v Semlitch[7] per Windeyer J, the Industrial Magistrate in Carman when considering whether the employment had aggravated an underlying degenerative back condition posed the question – had the underlying condition been 'made worse in the sense of more grave, more grievous or more serious in its effects.
[64] In the Carman decision, Hall P considered Pleming v Workers' Compensation Board of Queensland[8] stating:
"It must be remembered that Pleming v Workers' Compensation Board of Queensland … is an often cited but ageing authority. The worker who was successful on the point of law about the content of 'aggravation' was unsuccessful on the facts. Pleming v Workers' Compensation Board of Queensland, ibid, does not decide that a worker afflicted by a degenerative back suffers an injury if the back becomes painful at work. Neither does Pleming, op. cit., establish that a worker with a degenerative back suffers and 'injury' if the work is a cause of the onset or intensification of pain. Pleming, op. cit.", establishes that a worker with a degenerative back will suffer an injury where the back becomes painful or more painful and the employment is a significant cause of the onset or intensification of pain."
[65] The Regulator relies upon the evidence of Dr Steadman that the injury to the Appellant was a continuum of the earlier injury or injuries to the Appellant's right elbow. The workers' compensation claims for those injuries have been finalised. Mr Rashleigh submits that those claims cannot be reopened.
[66] According to the Regulator, the real issue in this case is that the Appellant was unsuited to the employment because of his elbow condition. This, according to the Regulator, is the significant contributing factor and the only significant contributing factor to his current injury. In this regard, the Regulator not only relies upon the evidence of Dr Steadman but also on the medical report of Dr Soares. Both Dr Steadman and Dr Soares were of the view that given the Appellant's underlying degenerative condition he should not be engaged in employment such as the one he was working in on 25 February 2016.
[67] The Regulator submits that the only significant contributing factor to the Appellant's condition was his underlying degenerative condition. The underlying degenerative condition is the problem. The problem for the Appellant is he is unable to reopen the workers' compensation claims in respect of the earlier injuries as they have ceased.
[68] As Mr Rashleigh, Counsel for the Regulator, submitted, for the Appellant's injury to be compensable it has to be an aggravation. Dr Steadman however confirmed that the injury was a continuum of those earlier injury in 2011 and the injury in 2014 for which the Appellant underwent surgery in 2015.
Conclusion
[69] As the Regulator does not contest the fact that an event occurred on 25 February 2016, I must accept that the Appellant did experience increased symptoms in his right elbow as a result of lifting whilst at work. I am however unable to know why the Appellant failed to mention this event in August 2016 when he was examined by Dr Steadman. I accept Dr Steadman's evidence that the Appellant did not refer to any specific event when being examined by Dr Steadman on 8 September 2016. It is apparent from Dr Steadman's medical report that he explained the details of the medical assessment process to the Appellant. He further provided details to the Appellant as to his own role in the independent examination and that his medical report (following examination) would be provided to the self-insurer. Dr Steadman does record that the Appellant was "tense and frustrated" during his examination on 29 August 2016 but that does not appear to account for the Appellant's failure to refer to the event of 25 February 2016.
[70] I accept that the Appellant informed his supervisor of an event on 25 February 2016. I further accept that the Appellant in his claim for workers' compensation also referred to an event on 25 February 2016. The first occasion following 25 February 2016 that the Appellant sought medical attention for the injury that occurred on 25 February 2016 was when he visited Dr Duraiswamy on 23 March 2016. Dr Duraiswamy was the first medical practitioner to issue the Appellant with a Workers' Compensation Medical Certificate and that was on 23 March 2016. Almost one month after the event. Yet the Appellant's evidence was that his capacity was "zero" following the event on 25 February 2016 although he was able to perform light duties for his employer.
[71] In that Workers' Compensation Medical Certificate, Dr Duraiswamy diagnosed the Appellant as suffering right "elbow tennis elbow" with the worker's stated cause of injury being "lifting heavy at work". Dr Duraiswamy indicated in that Certificate that the Appellant was suitable for restricted duties in the period 23 March 2016 to 30 March 2016. Dr Duraiswamy indicated that the Appellant was not able to lift any weight with his right upper limb, he could occasionally use his injured hand/arm and that the Appellant could only push or pull 5 kilograms. He further stated that the Appellant could only occasionally operate machinery/heavy vehicle and could only occasionally drive a car. This does not indicate that the Appellant's capacity was "zero". The Appellant, in his evidence about what occurred after the 25 February 2016, was at best not all that reliable.
[72] In this Certificate, Dr Duraiswamy indicated that the Appellant would require treatment from 23 March 2016 to 6 April 2016 (2 week period) and that he would be reviewed again on 30 March 2016. No mention is made of an event on 25 February 2016. This Medical Certificate does not corroborate the Appellant's evidence that he had "zero" capacity following the event on 25 February 2016. In a Workers' Compensation Medical Certificate dated 30 March 2016, Dr Tam Trinh extended the suitable duties to 11 April 2016 and indicated that the Appellant would be reviewed on 11 April 2016. Otherwise this Certificate appears identical to the one issued by Dr Duraiswamy on 23 March 2016. It was Dr Trinh who referred the Appellant to Dr Soares on 30 March 2016. Also of note in Dr Trinh's consultation on 30 March 2016 is the report that the Appellant "feels never completely recovered" and that "pain worse after certain types of work".
[73] In evidence are the Workers' Compensation Medical Certificates signed on 23 March 2016, 30 March 2016, 12 April 2016, 26 April 2016 and 6 May 2016 by medical practitioners in the Browns Plains Family Practice. The diagnosis remains the same i.e. right "elbow tennis elbow" with the Appellant being able to undertake suitable duties at work. Dr Trinh issued all but the first of those Certificates. The diagnosis does not change although the Appellant had been referred to, and seen by, Dr Soares and Dr Soares had provided an opinion on 11 April 2016.
[74] Further, there is no indication in Dr Duraiswamy's clinical notes of an injury on a particular day. The "subjective" notes are that the Appellant is complaining that he is having issues with his past right lateral epicondylitis "with the same now after lifting heavy weight". The records of the Browns Plains Family Practice for the period 23 March 2016 to 6 May 2016 indicate that there is no mention of anything connected with 25 February 2016.
[75] As mentioned previously Dr Soares was unable to give evidence in this appeal. The only specialist that gave evidence, and had examined the Appellant following 25 February 2016, was Dr Steadman.
[76] The Appellant took issue with Dr Steadman not making reference to the event on 25 February 2016 in his medical report. I accept that Dr Steadman, in providing his medical report, was aware of something occurring on 25 February 2016. It was Dr Steadman's evidence, after reviewing his actual notes of the examination, that the Appellant never mentioned a particular event, or an event on 25 February 2016, during his examination of the Appellant. The event is referred to in one of the questions asked of Dr Steadman to which he provided a response. The event is also identified in the instructions provided to Dr Steadman prior to any examination of the Appellant. The event of 25 February 2016 is also noted in his medical report. I accept that the Appellant did not make mention of an event on 25 February 2016 during his examination by Dr Steadman on 29 August 2016 and that Dr Steaman placed reliance on what the Appellant told him about his condition. The Appellant knew he was being assessed by Dr Steadman in relation to his workers' compensation claim.
[77] As outlined previously the issues for determination in this appeal is whether the injury to the Appellant on 25 February 2016 arose out of, or in the course of his employment, and whether the Appellant's employment was a significant contributing factor to the injury.
[78] The most compelling medical evidence is that of Dr Steadman. Dr Steadman examined the Appellant on 29 August 2016 (i.e. six months after the event) and provided a medical report dated 8 September 2016. Dr Steadman had before him both the ultrasound of 24 March 2016 and the MRI taken on 31 August 2016. That MRI showed no deterioration in the Appellant's underlying condition. What the MRI showed, according to Dr Steadman, was post surgical changes and some mild tendinosis. Dr Steadman referred to them as "post surgical" results. I thus accept then that there was no worsening of the Appellant's underlying degenerative condition as at 31 August 2016.
[79] Dr Steadman concluded that the Appellant suffered a continuum of the previous injury to his right elbow for which he had surgery on 11 March 2015 and opined that the Appellant had not suffered an aggravation of his underlying degenerative condition. The Appellant in his evidence acknowledged that he had never been pain free since the injury to his elbow in 2014 and advised Dr Steadman of this in his examination. It is also recorded in the Clinical Notes of the Browns' Plains Family Practice.
[80] Dr Duraiswamy, when advised of the MRI taken on 31 August 2016, and that the MRI found no change to the Appellant's underlying condition, and that there were some post-surgical problems identified, said that if the MRI showed those conditions he would "definitely" change his mind. His original evidence was that the Appellant would have aggravated a pre-existing condition.
[81] Dr McEniery did not have the benefit of the MRI taken on 31 August 2016 when giving his evidence and he had not examined the Appellant since the event on 25 February 2016. He was thus unaware that, as at 31 August 2016, there had been no change to the Appellant's underlying condition. I understand that Dr McEniery did not wish to comment on a MRI that he had not previously seen. I do however note that Dr McEniery said that he respected Dr Steadman's opinion having seen the MRI results.
[82] In the circumstances, I prefer the medical evidence of Dr Steadman, Orthopaedic Surgeon. Dr Steadman's medical report of 8 September 2016 was clear i.e. the Appellant's current condition "more likely represents one of an ongoing medical continuum from the original injury and this means that he is unsuitable for his current position". Dr Steadman had before him both the ultrasound taken on 24 March 2016 and the MRI of 31 August 2016 when providing this opinion. Neither of the other medical witnesses had the MRI before them when giving their opinions although Dr Duraiswamy indicated that if the MRI showed the results relied upon by Dr Steadman, he would "definitely" change his opinion.
[83] If the injury is a continuum of a previous injury then the decision of Karipa v Q-Comp[9] and the authorities referred to therein do not assist. Had the Appellant simply suffered an aggravation or an exacerbation of his degenerative condition whilst performing his duties on 25 February 2016 then those authorities would be relevant. The MRI, according to Dr Steadman, showed no worsening of the Appellant's underlying degenerative condition. The injury to the Appellant was a continuum of his previous injury in 2014 for which he underwent surgery on 11 March 2015.
[84] The Regulator submits that the real issue is that the Appellant was unsuited to the employment that he was doing because of his elbow condition i.e. the underlying degenerative condition and the earlier injuries to his elbow. That, according to the Regulator, is the significant contributing factor and the only significant contributing factor in the Appellant's case. Dr Soares was of a similar opinion as to the unsuitability of the Appellant for the type of employment he was performing at the time of the event.
[85] I do not dispute that there is a proximity between the onset of pain and the Appellant's work duties. The Regulator accepted that the Appellant suffered an increase in his symptoms at work on 25 February 2016 as there was no evidence to the contrary. The issue is whether the work activity was a significant contributing factor to that exacerbation of the pain.
Finding
[86] In the circumstances I find that the injury suffered by the Appellant, whether it be on 25 February 2016 or otherwise, is a continuum of the previous injury to the Appellant's right elbow. The significant contributing factor to the Appellant's injury in or about 25 February 2016 was his underlying degenerative condition. Whilst the Appellant submits that he suffered significant debilitating symptoms on 25 February 2016 whilst lifting the crates of milk above or around shoulder height, such debilitating symptoms did not cause the Appellant to access any medical treatment for these symptoms until almost one month after the event. This I find most unusual.
[87] I thus dismiss the appeal and confirm the decision of the Workers' Compensation Regulator dated 25 January 2017. I do not find that the Appellant's employment was a significant contributing factor to the Appellant's right lateral epicondylitis injury on or about 25 February 2016. The pain experienced by the Appellant, on or after 25 February 2016, was as Dr Steadman opined, an ongoing medical continuum from the original injury.
[88] In those circumstances I make the following orders:
- I dismiss the appeal.
- I confirm the decision of the Workers' Compensation Regulator dated 25 January 2017.
Footnotes
[1] Karipa v Q-COMP (WC/2011/453 - Decision
[2] Commonwealth v Beattie (1981) 53 FLR 191
[3] JBS Australia Pty Ltd v Q-COMP (C/2012/35) - Decision
[4] Davidson v Blackwood [2014] ICQ 008
[5] Godwin v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 206
[6] Carman v Q-COMP (2007) 186 QGIG 512
[7] Broom Company Pty Ltd v Semlitch (1964) 110 CLR 626
[8] Pleming v Workers' Compensation Board of Queensland (1996) 152 QGIG 1181
[9] Karipa v Q-COMP (WC/2011/453 - Decision