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Liang v Workers' Compensation Regulator[2019] QIRC 29

Liang v Workers' Compensation Regulator[2019] QIRC 29

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Xiaomin (Michelle) Liang v Workers' Compensation Regulator [2019] QIRC 029

PARTIES:

Xiaomin (Michelle) Liang

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

B/2018/34

PROCEEDING:

Application to reopen

DELIVERED ON:

HEARING DATES:

6 February 2019

19 September 2018; 16 November 2018

HEARD AT:

Brisbane

MEMBER:

Black IC

ORDER:

Application dismissed

CATCHWORDS:

WORKERS' COMPENSATION – APPEAL LAPSED  – APPLICATION TO REOPEN – where the applicant failed to communicate an intention to take action on her appeal for significant periods of time – where appeal lapsed by Registry – where applicant claimed that delays in progressing the appeal could be explained – prejudice to both parties – merits of appeal in question.

LEGISLATION:

Industrial Relations (Tribunals) Rules 2011 r 230

Workers' Compensation and Rehabilitation Act 2003  s 32

APPEARANCES:

Ms Michelle Liang, self represented

Mr S McLeod, for the Workers Compensation Regulator, directly instructed

Decision

 History of applications

  1. [1]
    The following history is compiled following a detailed file review of both WC224 of 2013 which is the appeal that the applicant is now trying to progress, and matter number B34 of 2018 which is the file of the current proceedings in which the applicant seeks permission to revive her 2013 appeal. The history is also informed by the submissions of the parties and reports and documents provided during the proceedings.

First claim

  1. [2]
    On or about 3 June 2011, the applicant lodged an application for compensation for a back injury. A copy of a workers compensation medical certificate issued by Dr O'Brien on 3 June 2011 recorded a diagnosis of "low back strain" and said that the injury was caused by "lifting patients". The certificate indicated that the applicant was not able to work at all from 3 June 2011 to 10 June 2011. WorkCover initially rejected the application, but this decision was altered by the regulator on review.
  1. [3]
    On 5 July 2011 the appellant undertook an independent medical examination conducted by Dr Macgroarty. On 28 July 2011 the applicant was treated by Dr Hoskins. Sometime after the consultation with Dr Hoskins, the applicant was referred to Dr Gatehouse who ordered an MRI. The MRI was taken on 30 October 2011 and Dr Gatehouse's report on the applicant's condition was written on 4 November 2011. On 21 November 2011, the applicant was told that her entitlements had been terminated.
  1. [4]
    A WorkCover verbal and unsuccessful communications report dated 3 June 2013 included a record of the applicant's telephone lodgement of her claim. Entries in the report indicate that the applicant first experienced lower back pain in April 2010 and that the pain gradually got worse over time and had caused her to take two weeks off in June 2010. The applicant also said that she informed her employer of the injury in September 2010 and that she had taken two weeks off at that time to rest her back. The WorkCover report also noted that the applicant recalled that she once had to lift, with the help of a female co-worker, a patient weighing about 200kg.
  1. [5]
    The WorkCover application form disclosed that the applicant stated that the injury was sustained on 19 September 2010 and that she first experienced symptoms on 1 April 2010.
  1. [6]
    Another entry in the WorkCover communications report noted that the applicant informed her employer of her back problems in September 2010 and that she attended on her general practitioner, Dr Paw, in September 2010. The entry said that the applicant told Dr Paw that she had a family history of back pain and that Dr Paw had prescribed anti-inflammatories/pain killers and referred her to Dr Martin Devereaux, a rheumatologist. The entry then revealed that Dr Devereaux told the applicant that her problem was not hereditary, and referred her back to Dr Paw for further investigation.
  1. [7]
    A report prepared by the Watson Forensic Science Centre was provided by the applicant during the proceedings. The report included an extract from a letter written by Dr Devereaux on 1 February 2011. In his letter, Dr Devereaux said that the applicant had problems with low back pain six months earlier. Dr Devereaux identified two issues for the applicant. The first was "mechanical back pain due to congenital lumbarisation of S1" and the second was "Fibromyalgia syndrome". The identification of these issues does not appear to be consistent with what the applicant told WorkCover.
  2. [8]
    After the applicant lodged her claim on 3 June 2011, she was examined by Dr Macgroarty. Extracts of Dr Macgroarty's report were included in the Watson Centre report. The history provided by the applicant to Dr Macgroarty included a statement that she had been employed as an Assistant in Nursing since 26 March 2009 and that she had reported lower back pain to her employer on 3 September 2010. The applicant attributed her lower back pain to the repetitive lifting of patients over the course of her employment. She said that she "had multiple incidents of lifting patients over the course of the year until the time of reporting symptoms". On each occasion of lifting, she experienced lower back pain. 
  1. [9]
    Consistent with the applicant's statement that she had reported her injury to her employer in September 2010, the Watson Centre report included an extract from correspondence written by the applicant's employer on 15 October 2010 which, in effect, confirmed that the applicant had complained of back pain and leg pain, although no statement was made about the onset of pain or about causation.
  1. [10]
    In his report dated 5 July 2011, Dr Macgroarty said that heavy lifting in the workplace had likely caused an aggravation of very early degenerative changes in the lumbosacral spine, and he entered a diagnosis of "a lumbar spondylosis". Dr Macgroarty said however that the applicant's ongoing symptoms were not work related but referable to mild degenerative changes noted in the applicant's lower back. In Dr Williams report, he said that Dr Macgroarty also found evidence of non-organic pathology at examination.
  1. [11]
    There is no information before me disclosing what imagery, if any, Dr Macgroarty relied on in formulating his opinion. He may have had access to an X-ray taken on 22 October 2010. The existence of this X-ray had been noted in Dr Hoskins' report of 28 July 2011 and Dr Williams' report of April 2013. The X-ray results were also reviewed by the Watson Centre who, in their report, referenced an X-ray of the lumbosacral spine taken by Brisbane Diagnostic at Sunnybank, Brisbane on 22 October 2010. On the applicant's account, this X-ray had been ordered by Dr Paw from the Sunnybank Hills Medical Centre.
  1. [12]
    The applicant had attended on Dr Hoskins on 28 July 2011. On that day, Dr Hoskins wrote a medical certificate in which he said that the applicant had reported that she has been experiencing back pain since late in 2010. The applicant had told Dr Hoskins that she was aware of the pain during individual lifts of patients and that the pain had gradually become more pronounced as she continued to lift patients. Dr Hoskins said that an X-ray taken in October 2010 showed lumbarisation of L1 but that there was no obvious pathology associated with this "normal variant" and that it "was not the cause of the problem".
  1. [13]
    While Dr Hoskins discounted ankylosing spondylitis, lumbarisation of L1 and osteophytic lipping as the cause of the applicant's pain, he did not enter any specific diagnosis and subsequently referred the applicant to an orthopaedic surgeon, Dr Gatehouse. In the first instance, Dr Gatehouse ordered an MRI and this scan was undertaken on 30 October 2011. A copy of the radiologist's MRI report is on file.
  1. [14]
    In his report dated 4 November 2011, Dr Gatehouse identified that the applicant's pain was located at the low lumbar and lumbo sacral region. He said that the MRI scan identified "an incorporated segment at the lumbo sacral junction" labelled L5-S1 but which he considered to be inclusive of the sacrum. He did not appear to identify this factor as the cause of the applicant's pain and said that it was likely that the applicant's pain originated from the L4-5 level.
  1. [15]
    Dr Gatehouse said that above the L5-S1 level, which I take to refer to the L4-5 level, the applicant had a desiccated disc with some postero annula disruption. There was a small central prolapse at this level without neural impingement. Dr Gatehouse said that it was likely that the applicant's pain was originating from the disc and the disruption at that level (L4-5).
  1. [16]
    Dr Gatehouse went on to say that it would be likely that the disruption at the L4-5 level would be seen as an aggravation of the disc changes at the level, rather than causal. He then stated that the applicant "does not have a specific injury that has occurred that can be reported and this does make the WorkCover Claim in this regard difficult". Dr Gatehouse's opinion is generally consistent with the earlier opinion of Dr Macgroarty.
  1. [17]
    A further report or medical certificate was issued by Dr Hoskins on 3 November 2011 after the MRI had been taken on 30 October 2011 and after the applicant had been examined by Dr Gatehouse. As was the case with his earlier certificate, Dr Hoskins does not deal with the issue of degeneration. His main issue appeared to be with the possibility that the applicant's pain was referable to congenital lumbarisation. As I understood it, this issue was prominent because WorkCover had, in the first instance,  rejected the applicant's claim on the basis that her pain was caused by congenital lumbarisation.
  1. [18]
    On receiving Dr Gatehouse's report, Dr Hoskins issued another certificate dated 3 November 2011 in which he stated that that the appellant was receiving treatment for a prolapsed lumbar disc and that the MRI scan had confirmed that the applicant's symptoms were due to disc herniation and not an underlying congenital abnormality:

Michelle has had her claim for WorkCover overturned on the basis that her condition was attributed to an underlying congenital abnormality. As you know from previous correspondence I felt that this decision was wrong. I have referred Michelle to Dr Gatehouse who has not organised an MRI scan confirming that Michelle's symptoms are due to disc herniation and not the congenital abnormality.

This is unsurprising given her history.

A copy of the MRI report is attached.

There is now compelling evidence that your original decision should be reviewed. If necessary you should seek a report from Dr Gatehouse to confirm this.

  1. [19]
    In another certificate written on 3 November 2011, Dr Hoskins had also advised against airline travel for the applicant and included the following assessment on the applicant's back condition in which he makes reference to a "two-level" disc prolapse.

Xiao Min has been a patient of mine for some time and the main complaint during this period has been a work-related injury. She has a two-level disc prolapse that caused severe pain and limits her mobility. She is unable to maintain the same posture for protracted periods.

  1. [20]
    Dr Hoskins reference to a "two-level" disc prolapse is not consistent with the report provided to him by Dr Gatehouse.  The effect of Dr Gatehouse's opinion was that the applicant's pain originated from a desiccated disc at the L4-5 level. He said that there was a small central prolapse at this level without neural impingement.
  1. [21]
    When WorkCover rejected the application, the applicant asked that the decision be reviewed by the regulator. On 21 November 2011, the regulator set aside the decision and held that the applicant had sustained an aggravation of pre-existing lumbar spondylosis over a period of time. WorkCover subsequently accepted the injury arising from multiple incidents of lifting patients over the course of the year until the time of reporting the stated symptoms.
  1. [22]
    Around the same time however (19 November 2011), WorkCover terminated the applicant's entitlement to compensation. The applicant sought a review of WorkCover's decision, but by decision dated 12 March 2012, the regulator confirmed WorkCover's decision.
  1. [23]
    The applicant did not appeal this decision of the regulator.
  1. [24]
    The appellant was subsequently examined by Dr Quan in February 2012. In a report dated 15 February 2012, Dr Quan identified symptoms of severe lower back pain and bilateral sciatica in the presence of a single level degenerate without overt nerve compression as the nature of the injury.  Dr Quan said that the MRI scan showed marked degenerative disc disease at the L4/5 level. Dr Quan also opined that there may be a spondylosis at L5/S1, but it was not very well shown on the MRI and he did not think it was contributing to the applicant's symptoms.
  1. [25]
    Dr Yip examined the applicant on 12 November 2012. In his report dated 4 December 2012, Dr Yip said that the 30 October 2011 MRI demonstrated disc desiccation at L4-5 with disc bulge and bilateral lateral recess stenosis. He said that the applicant's symptoms appeared to be related to disc disruption at L4-5. On the physical examination, he noted localised spinal tenderness at L5-S1.
  1. [26]
    The basis for Dr Hoskins' diagnosis of a two-level disc prolapse is not known. All of the specialists that subsequently reviewed the 30 October 2011 MRI concluded that the applicant's pain was referable to single level disc disruption ( L4-4 level).   

Second claim

  1. [27]
    On or about 7 January 2013, the applicant made a further application for compensation for a back injury said to have taken place on 3 April 2010, as a result of lifting heavy patients.  The injury was said to be a disc herniation at L4/5 and was said to be caused by a specific lifting event at work on 3 April 2010.
  1. [28]
    WorkCover rejected the claim on the basis that the claim related to the same events that gave rise to the applicant's previous accepted claim.
  1. [29]
    On 11 January 2013 the applicant lodged an application for review with the regulator. By decision dated 7 March 2013, the regulator returned the matter to WorkCover with directions to obtain additional information and to make a final decision. The additional information sought was alluded to in the final review decision of the regulator dated 5 June 2013.
  1. [30]
    In its decision, Q-Comp considered all the medical reports associated with both of the applicant's claims including a number of reports provided by the applicant:
  • A report dated 5 July 2011 from Dr Macgroarty;
  • Reports or medical certificates provided by Dr Hoskins;
  • A report dated 15 February 2012 from Dr Quan (spinal and orthopaedic surgeon);
  • A report dated 4 November 2012 from Dr Gatehouse (orthopaedic surgeon);
  • A report dated 4 December 2012 from Dr Yip (orthopaedic specialist);
  • An undated report from Dr Williams (orthopaedic surgeon).
  1. [31]
    In its 5 June 2013 decision, after referring to all the medical reports before it, Q-Comp concluded that it was "unable to determine if the disc herniation is considered a separate personal injury to the previous accepted aggravation of pre-existing spondylosis". Therefore, Q-Comp decided to instruct WorkCover to obtain "additional information from an independent orthopaedic surgeon" who should conduct a full review of the medical evidence and provide his opinion. This work was assigned to Dr Williams and while Dr Williams' report is undated, it must have been prepared some time between the date of return of the claim to WorkCover on 7 March 2013, and the date of the review decision on 5 June 2013.
  1. [32]
    After considering the additional information, WorkCover again rejected the applicant's claim and reasons for decision were provided to the applicant on 2 April 2013.
  1. [33]
    While the applicant sought a further review by the regulator, by decision dated 5 June 2013, the regulator confirmed the decision of WorkCover to reject the applicant's claim for compensation.
  1. [34]
    In the end result, Q-Comp acted on the opinion of Dr Williams in concluding that the applicant's employment was not a significant contributing factor to the onset of pain reported in July or September 2010. In his review, Dr Williams considered the X-ray taken on 22 October 2010, and the reports of Dr Macgroarty, Dr Quan, Dr Yip and Dr Hoskins. While Dr Williams did not have to hand a copy of the MRI taken on 30 October 2012, he relied on the findings of Dr Quan and Dr Yip in this regard.
  1. [35]
    In his report, Dr Williams reviewed the two statutory claims lodged by the applicant. Dr Williams noted that Dr Macgroarty conducted an independent medical examination of the applicant on 1 July 2011. Dr Macgroarty had concluded that the applicant's symptoms were caused by a work-related aggravation of early degenerative change in the lumbosacral spine. Dr Macgroarty felt that the symptoms would subside within one to two months of the date of his examination on 1 July 2011.
  1. [36]
    In his report, Dr Williams said that he had been provided with an X-ray taken on 22 October 2010. He said that the X-ray revealed "a moderate non-structural scoliosis of the lumbar spine with early changes of lumbar spondylosis". Dr Williams noted that Dr Quan's conclusion that the applicant's symptoms related to single level lumbar degeneration without neural compression.
  1. [37]
    Dr Williams stated that he did not consider that any discal herniation had arisen out of employment. He said that discal herniation is a degenerative process which is not traumatic in origin and does not occur "over a period of time" in the course of employment or occur following any specific event.  Dr Williams concluded that it was unlikely that the applicant suffered any structural lesion of the lumbar spine in April 2010, given that her reporting of the event did not occur until at least July that year.
  1. [38]
    The effect of Dr Williams report was that he did not see the 30 October 2011 MRI, but relied on Dr Quan's report in identifying that the MRI "appears to demonstrate single level discal desiccation without evidence of neural compression". Dr Yip's finding was that the MRI demonstrated disc desiccation at L4-5 with disc bulge and bilateral lateral recess stenosis.
  1. [39]
    It was Dr Williams' opinion that the applicant experienced a musculoligamentous strain of the lumbar spine which rapidly settled in the days following the event. In his view symptoms reported by the applicant in July or September 2010 related to the natural history of an underlying degenerative discal degenerative process, principally at the L4/5 level.

July 2013 Appeal

  1. [40]
    The applicant's appeal documents were filed on 3 July 2013 and 15 July 2013. Taken together the applicant filed the following documents:
  • Notice of appeal;
  • Attachment 1 - grounds for appeal;
  • Copy of the regulator's decision dated 5 June 2013.
  • Copy of a workers' compensation medical certificate dated 3 June 2011;
  • Copy of a report or medical certificate issued on 28 July 2011 by Dr Bob Hoskins; 
  • Copy of a report prepared by Dr Simon Gatehouse on 4 November 2011.
  1. [41]
    In stating the grounds for her appeal, the applicant said that:
  • the medical investigation had been misled (alluding to the fact that Dr Williams did not have access to the 30 October 2011 MRI);
  • Q-Comp should not have relied on the report prepared by Dr Gatehouse which the appellant believed was confidential and should not have been released to Q-Comp;
  • Q-Comp erred in not preferring the opinion of Dr Hoskins.
  1. [42]
    In her appeal document, the applicant also said that she relied on Dr O'Brien's certificate; documents that support a history of strain due to mistreatment in the workplace; Dr Williams' opinion that the applicant's disgruntlement with her employer had a material effect on the persistence of her lumbar spinal pain; and Dr Hoskins' opinion.
  1. [43]
    The workers' compensation medical certificate which was issued by Dr O'Brien entered a diagnosis of low back strain and identified the workers' stated cause of injury as "back strain from lifting patients". The certificate stated that the applicant was not able to work at all from 3 June 2011 to 10 June 2011.
  2. [44]
    In her email to the registry on 22 July 2013 the applicant advised that her place of residence had shifted to China and that she was undergoing "long term treatment" in China. In these circumstances, she foreshadowed a difficulty in managing issues that needed to be resolved in Brisbane. She was actively engaging in the process of moving her appeal forward and wanted to know if anything further needed to be done in terms of the filing process. She also said that, in her appeal, she wanted to put forward new information which she described in the following terms:
  • An MRI report disclosed that her spine injury involved a two-level disc herniation;
  • Q-Comp's assessment was based on a single level disc herniation;
  • She had provided the MRI report to Q-Comp on 14 November 2011;
  • WorkCover had advised that the MRI report was not included in the file received from Q-Comp;
  • Q-Comp's failure to provide WorkCover with the report meant that the medical assessment had been misled.

Application to re-open

  1. [45]
    On 17 August 2018, the applicant filed an application, the accepted effect of which was to seek the reopening of her 2013 appeal in circumstances where her appeal had lapsed.
  1. [46]
    Section 230 of the Industrial Relations (Tribunals) Rules 2011 applies if an application starting a proceeding has been filed in circumstances where no action has been taken in relation to the application for "at least 1 year since the last action was taken in the application".
  1. [47]
    Section 230 of the rules further provides that a party may only take further action on the application with an order of the Commission and that any application for an order must address the following factors:
  • the steps taken in the proceeding;
  • an explanation for the circumstances of the delay;
  • the steps, including a timetable, proposed to be taken to progress the proceeding;
  • any prejudice suffered or likely to be suffered by another party to the proceeding if the application (appeal) is not struck out;
  • the merits of the proceeding;
  • why the Court, Commission or Registrar should make the order to proceed despite the delay.
  1. [48]
    In this matter, the determinative issues relate to the applicant's explanations for her apparent failure to prosecute her appeal in a timely manner; the extent to which either party will be prejudiced by a re-opening decision adverse to them; and whether, if the appeal is reopened, the applicant holds any reasonable prospects of success.
  1. [49]
    In her application to re-open, the applicant identified the following relevant material facts in support of her application:
  • The Judicial Identification Opinion made by the Watson Forensic Science Centre in Guangdong, China; and
  • Medical reports or certificates provided by Dr Hoskins including evidence of Dr Hoskins qualifications (occupational physician or forensic physician).
  1. [50]
    The application to reopen was subject to hearings on 19 September 2018 and 16 November 2018. The applicant provided a number of documents for consideration in the proceedings held on 19 September 2018, and also provided further material for consideration before the November 2018 hearing. In the September proceeding the applicant relied on the following documents:
  • Applicant's handwritten presentation addressing the reasons for delay;
  • Applicant's submission in Chinese (subsequently translated into English);
  • Judicial Identification Opinion provided by the Watson Forensic Centre;
  • Judgment of the Intermediate Peoples' Court in Quang Cho City relating to child custody dispute and maintenance;
  • Dr Quan's report dated 15 February 2012;
  • Dr Hoskins reports of 28 July 2011 and 3 November 2011;
  • Qualifications or resumes or personal profiles of Professor Jing (Watson Centre); Dr Quan; and Dr Hoskins.
  1. [51]
    A review of all the material provided by the applicant in relation to both the September and November 2018 proceedings discloses that the applicant relies on the following proposition to support her application to reopen:
  • The Watson Centre Report established that her lumbar disc herniation was related to her work as an assistant in nursing in 2009 and 2010;
  • The Watson Centre Report was to be preferred because orthopaedic surgeons in Australia are not skilled in the practice of forensic identification;
  • Dr Hoskins' opinion dated 28 July 2011 supported her claim that her injury was work related. Dr Hoskins, who was well qualified as a senior forensic physician, had opined that "under all these circumstances I am surprised that there is sufficient information to conclude that her condition is not work-related"; 
  • The legitimacy of Dr Williams' report was questioned on various grounds including that Dr Williams does not hold a forensic science practicing certificate;
  • The applicant did not have a history of lower back pain when she arrived in Australia and commenced work as an assistant in nursing. The 22 October 2010 X-Ray showed that the physiological curvature of her spine was normal and that the degree of degenerative changes of the spine was appropriate to her age;
  • While WorkCover's decision was subsequently set aside by the regulator, she noted the error or misdiagnosis on the part of WorkCover in rejecting her first claim on the basis of a congenital condition of lumbarisation;
  • Dr Quan's opinion confirmed that congenital lumbarisation was not contributing to her symptoms;
  • The opinions of Dr Hoskins and Dr Quan were consistent with those expressed in the Watson Centre Report.

Video evidence

  1. [52]
    In proceedings dated 16 November 2018 the appellant said that she would forward a video which would better explain her position. A link to the video was emailed to my associate on 16 November 2018. The link was then provided to the respondent, although the respondent subsequently advised that it was unable to view the video because of technological limitations.
  1. [53]
    In the video, the applicant spoke about her application and the surrounding facts and circumstances and tried to address criteria relevant to a determination about whether to re-open proceedings.
  1. [54]
    I have viewed the entire video, and while the appellant better articulated some of the propositions that she relied on, she did not introduce any new material or new propositions relevant to the determination to be made.
  1. [55]
    Anything of significance said in the video replicated what the applicant had put forward during the proceedings on 19 September 2018 or 16 November 2018. In particular her narrative followed the content of the handwritten notes which she had provided on 19 September 2018.  
  1. [56]
    The respondent has not been disadvantaged or in any way prejudiced by not having the opportunity to view the video. In the video, the applicant communicated the following:
  • She confirmed that the Watson Centre Report had been officially translated;
  • She provided a detailed explanation for any delay in prosecuting her case;
  • When she returned to China, her principal concern was the health, safety and welfare of herself and her daughter;
  • She was confronted with a domestic violence issue and was embroiled in family law proceedings which she had to initiate against her former husband;
  • She was informed on 1 August 2016 that there was a delay in the finalisation of her report by the Watson Centre;
  • The commissioning and completion of the Watson report was a long and involved process, including the translation of the report;
  • She did not accept the legitimacy of any doubts raised about the qualifications of the authors of the Watson Centre Report. She said that the lead author was one of the best forensic doctors in China who had written articles and text books which had been published both at home and abroad;
  • She considered the authors of the Watson Centre Report to be better qualified than orthopaedic surgeons and she said that the Watson Report was to be preferred over the report of Dr Williams;
  • It was difficult for her to source a lawyer, particularly a lawyer who would be able to communicate in the Chinese language, but she would like to engage a lawyer to assist in the prosecution of her appeal.

Explanation for delay

  1. [57]
    In the handwritten notes, the appellant outlined her reasons for the delay in progressing her appeal. The applicant explained that she had experienced a series of set backs upon her return to China, commencing with family, marital and financial challenges which had to be overcome before she addressed the key issue of obtaining alternative medical evidence.
  1. [58]
    Proof of the applicant's family law problems were provided during the proceedings on 19 September 2018 where the applicant provided a copy of a judgment relative to her marital dispute and child custody proceedings (T1-17):

INTERPRETER:   It’s a judgment made by the Intermedium People’s Court in Quang Cho City, Quang Cho province, and the matter is about the dispute between she and her ex-husband, in terms of the child custody   

  1. [59]
    The need for medical evidence had been emphasised during a s 552A conference convened in relation to the applicant's appeal and held on 30 August 2013. The appellant understood, arising from the conference, that if she wanted to prosecute her appeal it would be necessary for her to get medical evidence, the effect of which would be to over-ride the medical evidence relied on by Q-Comp. In a response provided by email on 25 October 2018 the applicant said that the Commissioner encouraged her to get medical documents to support her point of view.
  1. [60]
    The regulator did not dispute the applicant's recollections about what was said during the conference and accepted that the applicant was told that if she wanted to progress her appeal she needed to find alternative medical evidence (T1-22):

APPLICANT:   At that conference I remember very [indistinct] clearly, the commissioner and the third party, they ask me – ask me whether I have medical evidence.  What they have to tell me that I need evidence to appeal it and they have three medical reports there saying that I’m not related, so I need to get more or more stronger medical report to appeals it, and they   

MR MCLEOD:   Okay.  Well, that – sorry to interrupt.  That seems to be what the transcript does reveal, that she was put on notice by the regulator’s representative at the conference.  That there was an absence of medical evidence to support her case.  If she wanted to progress the appeal, she would need to find medical evidence.  My question was though:  when or how was she notified that her appeal was suspended?

  1. [61]
    While however the applicant had a clear understanding about the requirement to get medical evidence, she emphasised that she received no similar advice related to the expeditious progression of her appeal. Her submission on 19 September 2018 took the following form (T1-24):

APPLICANT:   Okay.  I want to say something.  That I think it’s very unfair to me that you say that my application of appeal is expired.  Actually, when I had that hearing on 2013, no one has told me any information about when it will expire.  No one give me any instruction of that.  If I didn’t follow instructions, that’s my fault.  But I didn’t receive any instructions, and it is [indistinct] a surprise if – if it’s told that –I was told that it’s expired, but I didn’t know anything before it expired, and so I think it is not my responsibility.

  1. [62]
    An enduring problem for the appellant was that by the time that she had lodged her appeal in July 2013, she had returned to China where she encountered numerous difficulties in finding an appropriate organisation to provide her with the medical evidence necessary to enable her to progress her appeal. Additionally, she was confronted with serious personal, family and financial difficulties which made it difficult for her to focus on her appeal. All these circumstances contributed to the first lengthy delay in actioning her appeal which extended from 30 August 2013 to 18 August 2014.   
  1. [63]
    On 18 August 2014, the applicant sent an email to the chambers of the Vice President of the QIRC. The email started with the statement that "I have additional information to my case".
  1. [64]
    The applicant then said that she had "found that in my journey of review application with Q-Comp, I have been in a mistake". The applicant then appeared to suggest that the cause of her injury had been misdiagnosed. She then proceeded to provide a lengthy dissertation on the vicissitudes of life before stating:

At the moment, I am in Beijing. I am here to request the government to allow my doctors to provide documents your need for my case. As in China, they work at the Public hospitals and usually not writing such documents without permission".

  1. [65]
    On 22 August 2014, the Vice-President's chambers forwarded the applicant's email to an appeals officer of the regulator. Having received the email, it appears that the appeals officer mistakenly interpreted the applicant's email to mean that she did not wish to continue with her appeal. In the circumstances, the appeals officer emailed the applicant on the same day and stated:

The QIRC has forwarded the email sent to the Vice President's Associate to me.

As I understand from your email, it is your intention to withdraw or discontinue your appeal.

I have completed a Notice of Discontinuance for you to complete and sign. This will formalise the discontinuance of your appeal.

Please return the Notice to me via e-mail, and I will file it in the Registry".

  1. [66]
    This email drew a quick response from the applicant who replied to the email on 24 August 2014 and said that she had been misunderstood, and that she wanted to continue with her appeal. It is not known whether the appeals officer forwarded the applicant's response to the Vice-President's chambers.
  1. [67]
    On balance, the Vice-President's chambers may not have been informed of the response, because on 19 September 2014 the Vice President's chambers emailed the Registry and asked that a number of matters including "WC/2013/224 – Michelle Liang v Workers Compensation Regulator", be lapsed.  The registry replied to chambers on 22 September 2014 and confirmed that arrangements would be made to have the matter lapsed.
  1. [68]
    Confirmation that the appeal had been lapsed was provided by the registry on 2 March 2016 when the regulator wrote to the registry and requested that the applicant's appeal be lapsed for want of prosecution:

It is the Regulator's understanding that this matter has been held in abeyance following the Appellant's e-mail communications in August 2014. It is also understood that the Appellant is no longer resident in Australia.

There has been no action on the part of the appellant to progress her appeal since the email of 22 August 2014. In the circumstances the Regulator respectfully requests that the matter be lapsed for want of prosecution.

  1. [69]
    The registry, by way of response, informed the regulator on 2 March 2016 that the matter in question had "been lapsed as from 19 September 2014, from instructions of the Vice President".
  1. [70]
    Around the same time that the applicant had communicated with the Vice-President's chambers in August 2014, the applicant had also emailed the Prime Minister of Australia regarding her workers compensation claim. The Prime Minister referred the matter to the Queensland Attorney-General and Minister for Justice, who subsequently wrote to the applicant on 29 October 2014.
  1. [71]
    In this correspondence, the Attorney-General said, inter alia, that "abeyance means that the matter is put on hold until all parties are ready to continue having the appeal heard" and that "should you wish to continue your appeal. I encourage you to contact the Commission registry as soon as possible by email … ".
  1. [72]
    In summary to this point in time, the applicant had, within the twelve month time frame, informed the QIRC on 18 August 2014 that she remained involved with her appeal and had additional information in relation to her appeal. It can be accepted that the applicant was communicating a wish to continue with her appeal. Not long after this, and on 29 October 2014, the Attorney-General informed the applicant that if she wished to progress her appeal, she should make contact with the registry as soon as possible.
  1. [73]
    While it may be open to argument whether the applicant's appeal should have been lapsed on 22 September 2014, there is no real doubt that the circumstances warranted the lapsing of the appeal in March 2016 given the applicant's failure to communicate with the registry and the regulator in relation to her appeal between October 2014 and 7 August 2018.
  1. [74]
    Notwithstanding this, the applicant argued that she had never been advised that her appeal had been lapsed. There is nothing on the record to show that she was informed that her appeal had been lapsed, and in the proceedings on 19 September 2018, the applicant denied that she was ever informed that her appeal had been lapsed. 
  1. [75]
    Significantly however, despite being informed by the Attorney-General on 29 October 2014 to take prompt action in relation to her appeal, the applicant did not make any contact with the registry and ultimately nothing further was heard from the applicant until 7 August 2018. While there had been no communication with the regulator or the registry, the applicant said that she had been actively examining ways and means of getting the necessary medical opinion.
  1. [76]
    Whether the applicant's failure to update the registry and the respondent about activities associated with her appeal should lead to the rejection of her application to re-open is a matter for determination. It is relevant however that the applicant was not represented and that she was most likely unaware of an obligation to expeditiously conduct her appeal and to comply with the industrial tribunal rules in terms of the progression of her appeal.
  1. [77]
    During the proceedings on 19 September 2018, the applicant said in effect that after the state Attorney-General informed her that should she wish to continue with her appeal she should contact the Commission Registry, she turned her attention to what had to be done to get a competing medical opinion (T1-11) where, after some investigations, the Watson Forensic Centre was recommended to her in March 2015:

So I – of course, I came back very disappointed and my friends heard about my situation and they also sympathised me and also helped me to find the information – useful information, and then until March 2014 I found the Watson, the forensic science centre.  So in March 2015 I contacted Watson.  So I wrote down here on the document in March 2015 “I found Watson”.  I trusted them and they appeared professional and I was – but I was advised that the fees is around 5,000 yuan and also they might – the – there might be lots of materials and un – that need to be translated. 

And unfortunately since April 2015 I experienced a lot of problems in my family, and these were all written in the judgments that I will – or I can explain to you later.  And from March 2015 until April 2016 I suffered great financial burden and I really don’t have the – enough money to do the assessment, and then in August 2016 I come up with an idea.  I applied for credit card, and then I wrote it down here as “high risk behaviour”, so – because when I was applying for this credit card I was not employed.

  1. [78]
    However, the applicant was told the cost of the report would be in the order of 5000 Yuan and she explained that family and financial problems prevented her from progressing the Watson report. She was not able to finance the report until around August 2016.
  1. [79]
    While the finalised version of the report identifies a date of acceptance of 9 January 2017, the applicant said that she did not receive the Chinese version of the report until August 2017. When she received the report, the applicant then had to confront the task of interpretation which was complicated by the use of medical terminology and medical jargon. During the proceedings on 19 September 2018, the applicant said at T1-14:

INTERPRETER:   And we met lots of difficulties in translation.  Our translator is – they are good in language, but they might not be able to specify the medical terms or terminologies – the meaning of the medical terms or terminologies.  And sometimes these translation cannot be used in professional report.

 

INTERPRETER:   And then in August 2017 I got the report.  But if you turn to page 3 and there’s a date of acceptance is 9th of January 2017.  But as a matter of fact, they start to prepare for this report much earlier than this date.  And I received this report around August 2017.  So I also have to get someone to translate it for me, as well.  And I also suffered financial burden, as well, during that time, because I need to find translators – expert translators, in doing this job. 

  1. [80]
    Because of the difficulties experienced at the translation stage, the applicant said that it was not until August 2018 that she received the English version of the report. It was then that she made contact with the Office of Industrial Relations on 7 August 2018 who responded to her email on 9 August 2018 in the following terms:

Thank you for your email dated 7 August 2018 requesting to reopen an appeal before the Queensland Industrial Relations Commission (the Commission).

 I am advised that your appeal was put into abeyance after the conference held under section 552A of the Workers’ Compensation and Rehabilitation Act 2003 on 30 August 2013.

On 2 March 2016, the Office of Industrial Relations contacted the Commission, which advised that the matter had lapsed from 19 September 2014 on the instruction of Vice President Linnane.

Pursuant to section 230 of the Industrial Relations (Tribunals) Rules 2011, a party may only take further action on the application with an order of the Commission, the Industrial Court, or Industrial Registrar.

To obtain such an order, you must make an application in the approved form (see attached) to the Commission stating:

  • the steps taken in the proceeding
  • an explanation for the circumstances of the delay
  • the steps, including a timetable, proposed to be taken to progress the proceeding
  • any prejudice suffered or likely to be suffered by another party to the proceeding if the application (appeal) is not struck out
  • the merits of the proceeding
  • why the Court, Commission or Registrar should make the order to proceed despite the delay.

Please find attached the approved form for you to complete and file with the Commission. You can file by emailing the completed form to the Commission at [email protected]

The Commission has confirmed that the matter has not been struck out, and you can make the application described above.

 Steps taken in the proceedings

  1. [81]
    The applicant filed her appeal within time and attended a s 552A conference on 30 August 2013. She understood that her prospects of successfully prosecuting an appeal relied significantly on her ability to secure supporting medical evidence.
  1. [82]
    While delays were experienced following her return to China, she informed the regulator in August 2014 that she intended to progress her appeal and had, subsequent to that, focussed on obtaining a medical opinion to support her appeal.
  1. [83]
    She understood that she could not progress her appeal until she had obtained supportive medical evidence, but she did not appreciate that she was constrained by time in this endeavour. As soon as she obtained the medical evidence necessary to support the prosecution of her appeal she took steps to progress her appeal.
  1. [84]
    In the first instance, this meant that she needed to file an application to reopen proceedings consistent with the advice she was given by the Office of Industrial Relations.
  1. [85]
    Despite the applicant's actions or activities, she did not inform the registry or the regulator that she intended to progress her appeal between August 2014 and August 2018. Further, the regulator had been informed in March 2016 that the applicant's appeal had been lapsed, and for them, the file was closed.

Prejudice

  1. [86]
    For the applicant, it is clear that she will be prejudiced by a decision preventing the prosecution of her appeal. Despite the lengthy delays, she has invested considerable time and money in securing a medical opinion which she believes will give her appeal good prospects of success.
  1. [87]
    However, the regulator will also be prejudiced by a decision to allow the appeal to be progressed.  The principal difficulty is the effluxion of time. If the appeal proceeds the regulator will be asked to defend an appeal which will be decided on evidence about events occurring up to nine years earlier.
  1. [88]
    It is not known whether all relevant witnesses, lay or medical, are still available to give evidence, but even if they are, they will be asked to give evidence about events occurring a considerable time ago. While medical witnesses in particular could be expected to rely on contemporaneous notes and reports, it would be difficult to expect any independent recollection of the relevant facts and circumstances.
  1. [89]
    It is fair to conclude that both parties will be prejudiced by a decision on re-opening which does not favour their particular position.

Merit  

  1. [90]
    In her first claim dated 3 June 2011, the applicant said in her application to WorkCover that her injury was sustained on 19 September 2010 and that she first experienced symptoms on 1 April 2010.
  1. [91]
    Entries in the WorkCover communication report of 3 June 2011, disclosed that after first experiencing lower back pain in April 2010, the applicant said that the pain gradually got worse over time and caused her to take two weeks off in June 2010, and a further two weeks off in September 2010, to rest her back.
  1. [92]
    The applicant also told WorkCover that she recalled once lifting, with the help of a female co-worker, a patient weighing about 200kg. It was not clear from the entry in the WorkCover report whether this heavy lift occurred in April 2010, or at some other time. 
  1. [93]
    The history provided by the applicant to Dr Macgroarty included a statement that she had been employed as an Assistant in Nursing since 26 March 2009 and that her lower back pain was attributable to repetitive lifting of patients over the course of her employment. She said that she had reported lower back pain to her employer on 3 September 2010. She said that she "had multiple incidents of lifting patients over the course of the year until the time of reporting symptoms". On each occasion of lifting, she experienced lower back pain. 
  1. [94]
    In a report prepared on 28 July 2011, Dr Hoskins said that the appellant advised him that she had been experiencing low back pain since late 2010. She said that she was aware of the pain during individual lifts and that the pain gradually became more pronounced as she continued to be required to lift patients.
  1. [95]
    In Dr Gatehouse's report of 4 November 2011, he stated that the applicant "does not have a specific injury that has occurred that can be reported".
  1. [96]
    In Dr Yip's report of 4 December 2012, he says that the applicant informed him that she had been experiencing back pain for two and a half years after lifting a heavy patient in April 2010. It is not clear whether the reference to April 2010 is referring to the start of symptoms which would be consistent with earlier reporting, or whether the applicant was identifying early April 2010 as the time of an acute injury.
  2. [97]
    The applicant informed her employer of her lower back condition on 3 September 2010. She attended on her general practitioner, Dr Paw, sometime in September 2010. Dr Paw subsequently ordered an X-ray which was taken on 22 October 2010.
  1. [98]
    While in the first instance WorkCover rejected the claim, after review by the regulator, WorkCover accepted the claim for an "aggravation of pre-existing spondylosis" arising from "multiple incidents of lifting patients over the course of the year until the time of reporting symptoms".
  1. [99]
    In her second claim dated 7 January 2013, the applicant said in her application to WorkCover that she sustained a back injury on 3 April 2010 as a result of lifting heavy patients.
  1. [100]
    In a submission to Q-Comp dated 24 January 2013, the applicant said that at the end of the day on 3 April 2010 she felt awful back pain which would not resolve. She did not go to work the next day and took sick leave.
  1. [101]
    There are a variety of reasons why the applicant's second claim was always unlikely to be accepted:
  1. (i)
    The applicant's version of events is not consistent with what she reported in relation to her first injury claim;
  1. (ii)
    While the applicant said that she experienced back pain symptoms from 1 April 2010, she never said in her first claim that suffered an acute injury in April 2010;
  1. (ii)
    Nor did the applicant report to anyone, when providing a history related to the first claim, that she commenced a period of sick leave immediately after the onset of symptoms in early April 2010;
  1. (ii)
    The applicant never characterised her first injury as anything other than an over time injury with symptoms experienced from 1 April 2010 and culminating in an injury in September 2010. This is evidence from her reporting to WorkCover and from the history that the applicant gave to Dr Macgroarty, Dr Hoskins, and Dr Gatehouse;
  1. (iv)
    The mechanism of injury relied on by the applicant (lifting heavy patients) in respect to her first claim is substantially the same as the mechanism relied on in support of her second claim. The only difference was that the first injury was characterised as an over time injury, while the second injury was said to be an acute injury occurring on 3 April 2013;
  1. (v)
    The lifting identified by the applicant in her first claim included an event in which she and a co-worker were required to lift a patient weighing 200kg. She relied on this event, both in the general and in the specific, to justify her first claim. Generally, because the event was used to illustrate her claim that she was regularly or frequently required to lift heavy patients, and specifically because she associated the 200kg lift with the onset of symptoms;
  1. (vi)
    While the applicant, in her first claim, appeared to illustrate heavy lifting by reference to a lift of a 200 kg patient, it was not clear that this lift occurred on 3 April 2010. If this however is what she conveyed to WorkCover, she did not suggest that this incident caused an acute injury. On all the material, this lift was one of a number of heavy lifts which she was required to make during the course of her employment. In including this incident in support of her first claim, she cannot prosecute a second claim based on the same factual matrix and the same medical evidence. It is the same mechanism of injury and the same injury;
  1. (vii)
    In providing this illustration, the applicant is saying that this event, along with other heavy lifting events contributed to her injury the subject of her first claim. It is not permissible for the applicant, having relied on heavy lifting including a 200kg lift to support her first claim, to make a subsequent claim based on the same mechanism of injury.
  1. [102]
    There are other reasons why it might reasonably be doubted that the applicant suffered an acute injury in April 2010. Firstly, while she said that she had a couple of weeks off work in June 2010, it appears that she did not seek treatment for the injury when it occurred and did not seek treatment until September 2010. Secondly, while in her first claim she advised that she had informed her employer of an injury in September 2010, she did not report any injury to her employer in April 2010.
  1. [103]
    A conclusion that the applicant provided the correct version of events when making her first claim is supported by the temporal alignment of key facts associated with her first claim. She sought treatment for her injury from Dr Paw sometime in September 2010, she reported her injury to her employer on 3 September 2010, and following a consultation with Dr Paw, an X-ray of the applicant's lumbosacral spine was taken on 22 October 2010. All these factors are consistent with the factual matrix underpinning the applicant's first claim which identified a date of injury of 19 September 2010.
  1. [104]
    I do not accept that the history given to Dr Yip supports a claim that an acute injury was sustained on 3 April 2010. Such history is not consistent with the history that she gave to Dr Macgroarty, Dr Hoskins, Dr Gatehouse or to WorkCover. I prefer the more contemporaneous versions of events included in the WorkCover communications report of 3 June 2011, Dr Macgroarty's report of 5 July 2011, Dr Hoskins report of 28 July 2011 and Dr Gatehouse's report dated 4 November 2011.

Medical evidence

  1. [105]
    The applicant relied substantially on a report prepared by the Watson Forensic Science Centre. The report was prepared by Professor and Chief Forensic Expert, Jing Hualan and Professor and Chief Forensic Expert, Ai Mei. The documents do not disclose in English what the qualifications of the report authors were, but the applicant said that she understood that the authors held a Bachelor of Medicine and a major in a forensics field. The applicant also said that on her understanding the authors were not orthopaedic surgeons.
  1. [106]
    The report was based on a forensic clinical examination of the applicant and an examination in forensic clinical imaging. The examination was conducted on 12 June 2017. The examination relevantly revealed "pressing pain of L3, L4, and L5 and spinous process of S1 (+ or -)".
  1. [107]
    It is not necessary to determine if the examination report differs from the examination reports of Dr Macgroarty, Dr Gatehouse, Dr Hoskins, Dr Quan or Dr Yip. These examinations were conducted around five years earlier than the Watson examination. Differences in outcome, if any, could be the result of many factors and findings of a medical examination conducted seven years after the period of time when the injury was sustained are unlikely to prevail over the findings of examinations conducted much closer to the date of injury.
  1. [108]
    Similarly, the examination of imaging which was prepared adjacent to the time of injury is to be preferred to imaging taken well after the event. The Watson Centre reviewed the 22 October 2010 X-ray and the 30 October 2011 MRI which was the imaging relied on by doctors between 2011 through to 2013 and which was referenced in the regulator's decision to reject the applicant's claim for compensation on 5 June 2013. 
  1. [109]
    While the Watson Centre also reviewed images taken at the Guangdong General Hospital and Nanfang Hospital during 2014, the report in its analysis and interpretation section confined itself to a consideration of the 2010 X-ray and the 2011 MRI. Given the dubious relevance of changes shown in imaging taken three to four years later, it was appropriate for the Watson Report to limit its analysis to the more contemporaneous investigations.
  1. [110]
    The Watson Report's opinions are contained in a section of the report headed "Analysis and Interpretation".  My reading of this section of the report discloses that the Watson Centre arrived at the following conclusions:
  1. (i)
    The applicant did not have symptoms of lower back pain prior to commencing work as an Assistant in Nursing;
  1. (ii)
    The applicant identified the onset of symptoms relating to low back pain in February and March 2010, one year after she commenced working as an assistant in nursing;
  1. (v)
    Heavy manual workers are susceptible to early lesion of intervertebral disc;
  1. (vi)
    Acute injuries can be regarded as the inducing factor of herniation of intervertebral disc;
  1. (vii)
    Discal degenerative pathological change is the core cause of lumbar disc herniation;
  1. (viii)
    Lumbar sacralisation, sacral lumbarisation and asymmetric zygopophysis add abnormal stress to the lower lumbar vertebra and increase the damage to the intervertebral disc;
  1. (viii)
    The frequent and intensive lumbar activities of bending, twisting, and moving heavy patients contributed to an accumulation of strain which accelerated the degenerative degree of inter vertebral disc over time;
  1. (ix)
    Additionally, the heavy lifting required of the applicant does not exclude the possibility that the applicant suffered acute lumbar injuries which induced lumbar disc herniation.
  1. [111]
    The reasoning in the Analysis and Interpretation section included the following paragraphs:

The discal degenerative pathological change is the core cause of Lumbar Disc Herniation. The lumbar disc receives great stress when spine is in movement and carrying load. As the age increases, the intervertebral disc gradually degenerates. Associated to the degenerative basis, under the function of strain accumulation and external force, the intervertebral disc ruptures, then the nucleus pulposus, fibrous rings and even terminal plates protrudes backwards, and giving who in serious condition symptoms due to pressure on the nerve.

The accumulation of strain is the core cause of discal degenerative pathological change. Repeated movements like bending and twisting are most easily to cause disk injury. Therefore, this disease has a certain relationship with the occupation. Heavy manual workers are easy to have early lesion of intervertebral disc due to excessive load. Acute injuries can be regarded as the including factor of herniation of intervertebral disc.

The high frequent and high-intensive lumbar activities of bending, twisting and moving heavy staff the Applicant made during her work as a nurse, as an accumulation of strain accelerated the degenerative degree of intervertebral disc through long-term effect. Therefore, the symptoms could be alleviated when she had rest. However, the Applicant was not stopped from working and still repeatedly made such high-intensive lumbar activities, consequently accelerating the partial or full rupture of the fibrous rings, leading to bulge and herniation of lumbar intervertebral disc, pressing dural sacs and nerve root, or having the potential possibility of pressing nerve root, i.e, the nerve root can be compressed in bad posture or when being tired, which can induce lower back pain and leg pain, numbness of lower extremities, remaining lower back pain and lumbar dysfunction.

  1. [112]
    The Watson Report concluded with the following propositions:
  1. (i)
    The applicant's lumbar disc herniation was mainly caused by lumbar vertebral degeneration;
  1. (ii)
    Long term frequent and repetitive lumbar motions accumulated strain on the applicant's vertebra and accelerated lumbar vertebral degenerative pathological change;
  1. (iii)
    The applicant's lumbar sacralisation may also have caused damage to the intervertebral disc;
  1. (iv)
    It is possible (not excluded) that acute lumbar injuries at work caused the applicant's disc herniation;
  1. (v)
    In a multi-factorial context, the report did not attempt to apportion causation to the four contributing factors identified.
  1. [113]
    In short, the Watson Centre concluded that while the causes of the applicant's lower back problem were multi-factorial, the main cause involved the acceleration or aggravation of lumbar vertebral degeneration. This conclusion is not significantly different to the conclusion reached by WorkCover and the regulator in respect to the accepted claim.
  1. [114]
    However, in concluding the report at this point, the Watson has not attempted to answer the question which must be answered by WorkCover, and if necessary by the regulator. That is, to what extent has the applicant's employment contributed to her injury. In this regard, Dr Macgroarty, Dr Gatehouse and Dr Williams all diminished the role of employment in assessing causation.
  1. [115]
    Dr Macgroarty concluded that while heavy lifting at work had aggravated the degenerative condition, the applicant's ongoing symptoms were not work related but referable to mild degenerative changes noted in the applicant's lower back. Dr Macgroarty concluded that the work-related effects of the injury would resolve in one to two months.
  1. [116]
    Dr Gatehouse concluded on 4 November 2011 that it would be likely that the applicant's injury would be seen as an aggravation of the disc changes at the L4/5 level, rather than causal. He also noted that the applicant "does not have a specific injury that has occurred that can be reported and this does make the WorkCover Claim in this regard difficult".
  1. [117]
    While Dr Hoskins had expressed surprise on 28 July 2011 that the applicant's low back injury had not been found to be work-related, he subsequently referred the applicant to Dr Gatehouse.  In referring the applicant to Dr Gatehouse, Dr Hoskins was deferring to Dr Gatehouse's expertise and opinion as a spinal surgeon. Significantly when Dr Gatehouse concluded that the applicant's employment was not an ongoing cause of her low back condition, Dr Hoskins did not express any dissenting view. Further, not in any of his reports did Dr Hoskins deal with the degeneration identified on the MRI and try to identify the relevance of the degeneration in determining any association with employment.
  1. [118]
    Dr Quan examined the appellant on 15 February 2012. He attributed the cause of the pain to marked degenerative disease at the L4/5 level. Dr Quan did not make any observation about an association between the injury and the applicant's employment.
  1. [119]
    Dr Yip concluded on his examination of the patient that her condition was related to disc disruption at L4-5. While Dr Yip noted that the applicant said that her injury was caused by lifting a heavy patient in April 2010, he did not enter any finding about the relationship between the injury and the applicant's employment.
  1. [120]
    Dr Williams concluded that any current symptoms experienced by the applicant relate to an underlying degenerative process which was independent of employment.
  1. [121]
    The applicant has foreshadowed in her application to re-open that she will rely substantially in the substantive proceedings on the Watson Centre report and the reports of Dr Hoskins. For the reasons already given, neither of these reports answer the determinative question and are unable to sustain the applicant's appeal.

 Conclusion

  1. [122]
    The starting point is to acknowledge that the applicant's claim lodged on 3 June 2011 was accepted as a work-related injury. The regulator held that the applicant had sustained an aggravation of pre-existing lumbar spondylosis over a period of time. WorkCover accepted the injury arising from multiple incidents of lifting patients over the course of the year until the time of reporting the stated symptoms. The effect of the accepted claim is that it is not in dispute that the applicant suffered a work-related injury arising from events occurring in the workplace across 2010.
  1. [123]
    The Watson Centre finding was consistent. It said the injury was mainly caused by degeneration and in circumstances where the applicant's heavy lifting over time accelerated the degenerative change. I take this to mean that the lifting over time caused an aggravation of the degenerative condition. While I think the Watson report was more open to a finding that, absent the lifting, degenerative change may not have been an issue for a person of the applicant's age, this is a matter of apportionment of contributing factors and does not change the basic outcome which is consistent with the conclusion of the regulator and WorkCover in accepting the first claim.
  1. [124]
    The decision of WorkCover and the regulator to terminate entitlements on 19 November 2011 does not mean that a conclusion was reached to the effect that the applicant's low back pain ended on 19 November 2011. Rather, in a multi-factorial context, the decision concluded that the work-related effects of the lower back injury would have ended on 19 November 2011. On Dr Williams' report, the lifting caused a musculoligamentous strain of the lumbar spine which would have settled were it not for the degenerative condition. It was the degenerative condition that was prolonging or extending the lower back pain, not the circumstances of employment.
  1. [125]
    It is in this context, that the applicant's principal complaint is that her lower back pain did not resolve within the time anticipated by Dr Macgroarty, and that the work related effects of the injury should have been assessed to have continued for more than the two months that he identified. 
  1. [126]
    There does not appear to be much doubt that the applicant continued to experience lower back pain after 19 November 2011. However, this fact does not invalidate the decision of WorkCover or the regulator to terminate entitlements. What it means is that the work-related effects of the injury were assessed to have resolved by 19 November 2011.
  1. [127]
    The fundamental problem for the applicant is that her remedy, if ever one were likely to be achieved, had to be found in an appeal from the regulator's decision to terminate entitlements in November 2011. The remedy will not be found in the lodgement of a new claim which cannot be distinguished from her first claim and which relies on a history that his inconsistent with what she put forward in support of her first claim.
  1. [128]
    There is little conflict between all the significant medical opinions except for the opinion of Dr Hoskins which does not address the central issue and which, in any event, defers to Dr Gatehouse.  In terms of the interpretation on the imaging, Dr Gatehouse, Dr Quan and Dr Yip make similar conclusions. Dr Williams does not contradict these opinions and generally relies on their interpretations of the imaging in forming his own opinion.
  1. [129]
    While the Watson Report identified sacralisation as a possible contributing factor, it did not attach a weighting to this factor and the opinion of Dr Gatehouse and Dr Hoskins was to the effect that there was a low probability that sacralisation was a contributing factor. The Watson Report is most likely consistent with this outcome. If it were not, such a finding would not assist the applicant.
  1. [130]
    Finally, while the Watson Report did not exclude the possibility that the applicant's injury was caused by an acute incident, it did not make a definitive finding in this regard and ultimately such a finding must rely on the history provided by the applicant. In my view, the available evidence does not support a finding of fact that the applicant experienced an acute injury in April 2010. In these circumstances, not a great deal turns on the identification in the Watson Report of a possibility that the injury could have been caused by a single traumatic event.
  1. [131]
    Consideration of a single traumatic event did not require resolution in the earlier medical reports, because the history provided by the applicant did not suggest that she had experienced a single traumatic event. Nothing turned on the possibility in the earlier reports because the history provided by the applicant to medical practitioners did not suggest that her injury was caused by a single acute event.

Decision

  1. [132]
    I reiterate that the applicant has no reasonable prospects of success if the application for reopening is granted and she is allowed to prosecute her 2013 appeal to conclusion. She is bound by the history that she provided in respect to her first and accepted claim. This history does not allow for a conclusion that the applicant sustained an acute injury on 3 April 2010 while lifting a heavy patient or patients. Nor does the overall factual matrix drawn from all the available material support a claim that the applicant suffered an injury on 3 April 2010. Finally, the medical evidence does not support the applicant's claim.
  1. [133]
    There are significant inconsistencies in the history provided to WorkCover in support of her second claim, the second claim cannot adequately be distinguished from the first claim in terms of the mechanism of injury or the nature of the injury, and the new medical evidence provided does not rebut the fundamental conclusion reached by Dr Macgroarty, Dr Gatehouse, or Dr Williams.
  1. [134]
    The application to re-open proceedings is dismissed.
Close

Editorial Notes

  • Published Case Name:

    Xiaomin (Michelle) Liang v Workers' Compensation Regulator

  • Shortened Case Name:

    Liang v Workers' Compensation Regulator

  • MNC:

    [2019] QIRC 29

  • Court:

    QIRC

  • Judge(s):

    Black IC

  • Date:

    06 Feb 2019

Appeal Status

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

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