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Gardner v Workers' Compensation Regulator[2021] QIRC 198

Gardner v Workers' Compensation Regulator[2021] QIRC 198

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Gardner v Workers' Compensation Regulator [2021] QIRC 198

PARTIES: 

Gardner, Jeffrey 

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2019/66

PROCEEDING:

Appeal against decision of Workers' Compensation Regulator

DELIVERED ON:

4 June 2021  

HEARING DATE:

23 and 24 March 2020

31 July 2020 (Appellant’s written submissions)

21 August 2020 (Respondent’s written submissions)

MEMBER:

HEARD AT:

Hartigan IC

Brisbane and Mackay

ORDERS:

  1. Allow the appeal;
  1. Set aside the decision of the Regulator dated 4 April 2019 and, in lieu thereof, issue a decision:
  1. (a)
    for the purpose of s 144A of the Workers' Compensation and Rehabilitation Act 2003 (Qld), the incapacity because of the work-related injury has not stopped; and
  1. (b)
    for the purpose of s 144B of the Workers' Compensation and Rehabilitation Act 2003 (Qld), the entitlement to the payment of medical treatment, hospitalisation and expenses under Chapter 4 for the work-related injury has not stopped. 
  1. The Respondent is to pay the Appellant's costs of and incidental to the appeal to be agreed, or failing agreement, to be subject to a further application to the Commission.

CATCHWORDS:

WORKERS' COMPENSATION – APPEAL – where WorkCover accepted application for work-related aggravation of pre-existing injury – entitlement to compensation terminated – whether appellant's incapacity due to work related-injury had stopped and whether further medical treatment was likely to improve the injury pursuant to ss 144A and 144B of the Workers' Compensation and Rehabilitation Act 2003 (Qld)

LEGISLATION:

Workers' Compensation and Rehabilitation Act 2003 (Qld) s 144A, s 144B

CASES

Tyson v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 191

APPEARANCES:

Mr S. McLennan, Counsel instructed by Beckey, Knight & Elliot Solicitors for the Appellant.

Mr C. Clark, Counsel, directly instructed by the Workers' Compensation Regulator, Respondent. 

Reasons for Decision

Background

  1. [1]
    Mr Jeffrey Gardner appeals a decision of the Workers' Compensation Regulator ("the Regulator") issued on 4 April 2019 confirming a decision of WorkCover Queensland ("WorkCover") to terminate Mr Gardner’s entitlement to compensation on and from 2 December 2018 in accordance with s 144A and s 144B of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ("the WCR Act").
  1. [2]
    Mr Gardner sustained a lower back injury in the course of his employment as a mechanic at his workplace, Bella Harvesting Pty Ltd ("Bella Harvesting"), on 16 March 2018.
  1. [3]
    On 23 April 2018, Mr Gardner lodged an application with WorkCover for the lower back injury he sustained at work. WorkCover accepted the claim for a "work-related aggravation of pre-existing minimally symptomatic L5 S1 spondylolisthesis" and paid benefits under the claim for medical treatments and weekly benefits.
  1. [4]
    On 3 December 2018, WorkCover terminated Mr Gardner’s entitlement to the payment of weekly benefits effective from 2 December 2018 ("the WorkCover decision"). As referred to above, the WorkCover decision was confirmed in a decision by the Regulator issued on 4 April 2019. It is the decision of the Regulator which is the subject of this appeal.

The Issue

  1. [5]
    The issue in this appeal is whether Mr Gardner had an ongoing entitlement to compensation beyond 2 December 2018 pursuant to ss 144A and 144B of the WCR Act. Relevantly, Mr Gardner must prove, on the balance of probabilities, that:
  1. (a)
    his entitlement to weekly compensation has not stopped because his incapacity because of the work-related injury has not stopped; and
  1. (b)
    his entitlement to payment of medical expenses has not stopped because the injury is likely to improve with further treatment.
  1. [6]
    Mr Gardner contends that the incapacity from the work-related injury has not stopped and that there is a further requirement for treatment of the work-related injury. 
  1. [7]
    The Regulator contends that that the weight of the evidence supports the view of Dr Licina, that, by 2 December 2018, the work related effects of any injury emanating from the work-related injury had abated and, that if there were any ongoing symptoms, they were explicable on the basis of an underlying constitutional degenerative condition.

Relevant legislative provisions

  1. [8]
    Section 144A of the WCR Act relevantly provides:

144A  When weekly payments of compensation stop

  1. (1)
    The entitlement of a worker to weekly payments of compensation under part 9 stops when the first of the following happens—
  1. (a)
    the incapacity because of the work related injury stops;
  1. (b)
    the worker has received weekly payments for the incapacity for 5 years;
  1. (c)
    compensation under this part reaches the maximum amount under part 6.
  1. (2)
    If subsection (1)(b) or (c) applies, the worker’s entitlement to further compensation for the injury stops.
  1. (3)
    Subsection (2) does not apply to the worker’s entitlement to compensation under chapter 4A.
  1. (4)
    This section does not limit another provision of this Act that stops weekly payments.
  1. [9]
    Section 144B of the WCR Act relevantly states:

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

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

  1. (a)
    the entitlement of the worker to weekly payments of compensation under part 9 stops; and
  1. (b)
    medical treatment by a registered person is no longer required for the management of the injury because the injury is not likely to improve with further medical treatment or hospitalisation.

Relevant background to the appeal

  1. [10]
    The relevant factual background to this appeal is reasonably uncontentious. The key events were included in the submissions of the parties which I have further summarised below.
  1. [11]
    Mr Gardner was born on 23 July 1952 and commenced employment with Bella Harvesting as a mechanic[1] in 1992.
  1. [12]
    On 16 March 2018, Mr Gardner complained of experiencing pain in his lower back after bending and twisting during the course of his work performing duties at Bella Harvesting.
  1. [13]
    On 23 April 2018, Mr Gardner applied for workers' compensation with WorkCover Queensland. On 22 May 2018, WorkCover accepted the application for compensation for a condition diagnosed as a "work-related aggravation of a pre-existing minimally symptomatic L5/S1 isthmic spondylolistheses that has not settled with time and usual treatment" (“the injury”).
  1. [14]
    On 5 June 2018, Mr Gardner attended on Dr Paul Licina, orthopaedic surgeon, for an examination. Dr Licina confirmed the injury as described by WorkCover.
  1. [15]
    On 6 June 2018, a caudal epidural steroid injection was administered to Mr Gardner.
  1. [16]
    On 5 July 2018, Dr Licina examined Mr Gardner and reported,[2] in summary, that Mr Gardner had gained significant improvement, his back pain was minimal, he had altered feeling in his feet but was progressing well and concluded that Mr Gardner was fit for light duties, with minimal bending and twisting and a 5 kg lifting limit.
  1. [17]
    On 7 August 2018, Mr Gardner returned to the workplace, performing suitable duties.
  1. [18]
    On 3 September 2018, Dr Licina administered a second caudal epidural steroid injection.
  1. [19]
    On 4 September 2018, Dr Licina examined Mr Gardner, forming the opinion[3] that Mr Gardner:
  1. (a)
    had had a recurrence of pain prior to the second caudal epidural steroid injection; after the injection had complete relief of pain;
  1. (b)
    understood that the pain will return, but hopefully at a lower level;
  1. (c)
    was to continue with conditioning program with physiotherapists; and
  1. (d)
    ought be considered for some form of suitable duties in two weeks’ time with a goal of returning to full duties four weeks after that.
  1. [20]
    On 17 October 2018, Dr Licina examined Mr Gardner following his complaint that the second caudal epidural steroid injection had not provided as much relief as the first injection. Dr Licina observed[4] that Mr Gardner has ongoing back and leg pain but is overall better than when he first presented.
  1. [21]
    Dr Licina considered that:
  1. (a)
    it was difficult to predict how Mr Gardner will be in the future;
  1. (b)
    if Mr Gardner continues to be reasonable until the end of the year that he is unlikely to deteriorate significantly;
  1. (c)
    if Mr Gardner did worsen, Dr Licina would review him and discuss options with Mr Gardner; and
  1. (d)
    the only other option in managing the pain is a major fusion operation, but that neither he or Mr Gardner felt that operation was justified at that point in time.
  1. [22]
    On 14 November 2018, Dr Licina, in response to a request for a clinical report from WorkCover, referred to the four occasions he had treated Mr Gardner and responded to questions put by WorkCover,[5] in summary, as follows:
  1. (a)
    no further treatment of Mr Gardner’s injury is planned;
  1. (b)
    Mr Gardner is cleared for full hours and duties;
  1. (c)
    Mr Gardner’s prognoses was for repeated flares of pain in the future that were anticipated to decrease in frequency and severity; and
  1. (d)
    Mr Gardner’s injury was stable and stationary.
  1. [23]
    Following receipt of Dr Licina’s report of 4 November 2018, WorkCover issued the decision, which in summary, stated:
  1. (a)
    Mr Gardner’s entitlement to weekly payment of compensation was stopped as at 2 December 2018, as the incapacity from the work-related injury had stopped; and
  1. (b)
    Mr Gardner’s entitlement to payment of medical treatment, hospitalisation and expenses were stopped as at 2 December 2018, as there was no further requirement for treatment of the work-related injury.

The evidence

  1. [24]
    Mr Gardner contends that the incapacity from the work-related injury has not stopped and that there is a further requirement for treatment of the work-related injury.  In support of his contention, Mr Gardner gave evidence on his own behalf and called evidence from Mr Malcolm Zillman, Mr Roy Weller and Mr David Bella. Mr Gardner also relied on the expert evidence of Dr Allan Cook.
  1. [25]
    The Regulator relied on the expert evidence of Dr Licina.
  1. [26]
    In resolving the conflicting views as to the cause of Mr Gardner’s symptoms at the relevant time, all evidence, including that of Mr Gardner, must be considered.Relevantly, the parties each respectively rely on medical evidence. I identify below the approach I will take with respect to resolving the conflict between the opinion’s provided by each of the relevant expert medical witnesses.
  1. [27]
    There is some tension between the evidence given by the lay witnesses regarding their observations as to the extent of Mr Gardner’s symptoms and how those symptoms are recorded in the GP consultation notes and the observations of Dr Licina during several consultations with Mr Gardner. For this reason, I have referred to that evidence in some detail below.

Evidence of Mr Gardner

  1. [28]
    Mr Gardner’s evidence consisted of written[6] and oral evidence and may be summarised as follows:
  1. (a)
    on the day of the injury, Mr Gardner was at work and repairing the linkage on a tractor’s gearbox which required him to access the cabin of the tractor by standing outside the cabin and twisting and leaning down into the cabin with his torso;[7]
  1. (b)
    Mr Gardner remained in that position for approximately 2 hours;
  1. (c)
    Mr Gardner says that he finished earlier on the day of the injury because once he had completed the task of repairing the gearbox he stood up and his legs collapsed on him, he felt severe lower back pain, and had difficulty using his left leg;
  1. (d)
    Mr Gardner says that he attended on Dr Dawes on 26 March 2018 who referred him to Dr Licina;
  1. (e)
    following the first caudal epidural steroid injection (on 6 June 2018) his symptoms reduced and included minimal lower back pain and numbness in the feet;
  1. (f)
    he returned to work at Bella Harvesting on 7 August 2018 but was not able to perform any suitable duties other than offering verbal advice from time to time to another farm mechanic;
  1. (g)
    on 3 September 2018, following the second injection, his symptoms included severe lower back pain into both legs to below the knees, but primarily down the left leg and numbness in the feet;
  1. (h)
    he had no symptoms from the injury on the day following the injection on 4 September 2018;
  1. (i)
    as at 18 October 2018, Mr Gardner's symptoms included significant lower back pain and leg pain treated with painkillers and anti-inflammatory drugs, referred pain into both legs to below the knees but primarily down the left leg with numbness in both feet;
  1. (j)
    as at 3 December 2018, Mr Gardner has not been able to return to his full duties;
  1. (k)
    on 14 December 2018, Mr Gardner says that he was advised by Bella Harvesting that there were insufficient light duties available for him to carryout.  Mr Gardner did not attend work after that. A separation certificate was issued by Bella Harvesting on 20 March 2019;
  1. (l)
    Mr Gardner says that he continues to suffer symptoms from the injury including a constant dull ache in his lower back, which he treats with Lyrica and Brufen, he has radiating pain down his leg past his knees and numbness of the feet. He says that since sustaining the injury he has not been capable of performing his full work duties;
  1. (m)
    Mr Gardner says that for 50 years he has been employed in roles of a farm mechanic and dozer operator and those roles require the capacity to:
  1. (i)
    bend and twist;
  1. (ii)
    operate heavy machinery and vehicles;
  1. (iii)
    manual handling at waist to chest level of greater than 10kg;
  1. (iv)
    manual handling above or below waist to chest level of greater than 5 kgs.
  1. (n)
    Mr Gardner gave evidence[8] that he had previously experienced back pain prior to the injury but not to the same extent following the injury;
  1. (o)
    relevantly Mr Gardner gave evidence that prior to the injury:
  1. (i)
    he had experienced muscle like stain after a strenuous day at work; and
  1. (ii)
    that he did not typically miss work because of the back pain;
  1. (p)
    Mr Gardner said that he did consult with Dr Maree on or about 6 May 2014 in relation to a pain he had in his upper back. Mr Gardner said he referred to it as a "lung injury" and it was as high up as his ribs. He said this injury consisted of very tight muscles on the right-hand side of his back and that it ached at all times. Mr Gardner said he saw a physiotherapist to work on the tightness of the muscles and had Bowen Therapy; and
  1. (q)
    Mr Gardner gave evidence that he had been thrown from a horse when he was about 18 years old but that he could not remember very much about that.  He said he did not miss work following being thrown by the horse.
  1. [29]
    Mr Gardner was cross-examined about previous past complaints of back pain. Under cross-examination Mr Gardner accepted that:
  1. (a)
    he had been to see Dr Maree in May 2014 and was sent for a CT scan;
  1. (b)
    the result of the CT Scan was that Mr Gardner was diagnosed as having grade 1 spondylolisthesis L5-S1 with nerve effacement; and
  1. (c)
    on 30 May 2014 it was recorded that he was still suffering from some back pain.[9]
  1. [30]
    It was also put to Mr Gardner that at an attendance with Dr Dominic Ottis on 6 February 2017 he provided a history of suffering from back pain.[10]

Evidence of Mr Malcolm Zillman

  1. [31]
    Mr Malcolm Zillman gave both written[11] and oral evidence.
  1. [32]
    Mr Zillman resides on a property one over from Mr Gardner.
  1. [33]
    Mr Zillman says that he had also observed Mr Gardner perform work as a mechanic at Bella harvesting as he was friends with the Bella's and would attend the farm. 
  1. [34]
    Mr Zillman says that he has observed Mr Gardner work on heavy machinery, trucks, tractors, and all forms of farming implements both at his property and at Bella Harvesting.
  1. [35]
    Mr Zillman observed Mr Gardner perform work at Bella Harvesting involving working with heaving machinery and all forms of farm equipment and implements. Mr Zillman says he has seen Mr Gardner work as a mechanic which includes him having to climb over machinery, get under machinery, and inside heavy machinery in order to complete particular jobs including motor and gearbox changes, tail hitches and generally anything to do with the maintenance and repair of equipment.
  1. [36]
    Mr Zillman says that he is aware that Mr Gardner injured himself at work in March 2018 and that since then has seen a dramatic physical and mental change in Mr Gardner.
  1. [37]
    Mr Zillman says that he visits Mr Gardner on a daily basis and has observed the following with respect to Mr Gardner:
  1. (a)
    difficulty walking with some days being worse than others;
  1. (b)
    struggling to hang the washing on the line; and
  1. (c)
    needing to rest after washing the dishes for approximately 5 minutes.
  1. [38]
    Mr Zillman said that on most days when he arrives at Mr Gardner’s home, he is lying on the hard floor in order to obtain some relief.
  1. [39]
    Mr Zillman cannot recall the last time Mr Gardner walked 150 meters to his mango tree and that he drives to Mr Zillman’s home rather than walk.
  1. [40]
    Mr Zillman has observed Mr Gardner’s daughter attend to his shopping for him.

Evidence of Mr Weller

  1. [41]
    Mr Roy Weller gave written[12] and oral evidence. Mr Weller’s written evidence can be summarised as follows:
  1. (a)
    Mr Weller says that he is Mr Gardner’s neighbour and has been so since 2003;
  1. (b)
    Mr Weller is a self-employed plant operator and heavy diesel fitter by trade. His business primarily concerns road maintenance and it owns a number of trucks and other items of heavy equipment;
  1. (c)
    Mr Weller has observed Mr Gardner work in and around his property and would see him tinker on machinery in his shed on his days off;
  1. (d)
    Mr Weller says that Mr Gardner has always been ready to assist him around my place and equipment on the occasions Mr Weller has asked for help;
  1. (e)
    Since March 2018, Mr Weller has observed Mr Gardner to be much slower around his home and on some days, he was barely able to walk, whereas on other days, he does not seem to be in as much pain;
  1. (f)
    Mr Weller has observed Mr Gardner lie on the lounge room floor in order to seek relief;
  1. (g)
    Mr Weller describes Mr Gardner to be generally much slower in his movements, to often clutch his back, being obviously affected by pain when hanging out the washing and cannot rush doing tasks at home;
  1. (h)
    Mr Weller observes that Mr Gardner is worse on some days rather than others; and
  1. (i)
    Mr Weller says that he would not be able to employ Mr Gardner in his business.  In addition to not having a position available, he considers Mr Gardner’s capacity to be such that he would not be able to complete mechanical work for him.

 Evidence of Mr David Bella

  1. [42]
    Mr David Bella gave both written[13] and oral evidence. Mr Bella’s evidence may be summarised as follows:
  1. (a)
    he is a partner in his family's cane farming business;
  1. (b)
    he has known Mr Gardner since about 1995 or 1996 when Mr Gardner first started work for the business. He worked continuously for them from that period until December 2018;
  1. (c)
    Mr Gardner was employed as a "jack of all trades" and assisted with general farm work and undertook most of the mechanical work needed to be done on the equipment;
  1. (d)
    the types of equipment Mr Gardner worked on included chamberlain tractors, farm implements and general farming equipment, a loader and excavator. Mr Gardner also drove the tractor;
  1. (e)
    Mr Gardner’s general maintenance duties included pulling equipment down, general maintenance, rebuilding engines and gear boxes and the like;
  1. (f)
    Mr Gardner was able to complete all of his work in a competent and timely manner;
  1. (g)
    Mr Gardner also assisted a diesel fitter/auto electrician employed by Bella Harvesting;
  1. (h)
    Mr Gardner, although having no formal qualifications, was a very competent workman with a lot of hands on experience. He obtained a lot of experience working on chamberlain equipment;
  1. (i)
    Mr Gardner drove the plant tractors at that time of the season and at other times although he did not do a lot of haul out work. Mr Bella does not believe Mr Gardner could now drive the tractor for very long because of the roughness associated with it;
  1. (j)
    Mr Bella observed a big change in Mr Gardner after March 2018. He says that upon Mr Gardner’s return to work Bella Harvesting tried him on light duties, but even with that, he had to sit down after a short time to rest as his legs and/or back were hurting him or going numb;
  1. (k)
    Mr Bella says that Mr Gardner was not able to do very much at all. He says that he observed that Mr Gardner has lost a considerable amount of weight and is generally a different person;
  1. (l)
    Mr Bella says that Mr Gardner does not have the work capacity he had up to March 2018. He says that up to that point he was still performing his duties in a capable manner. In his current condition, there are no suitable duties to keep him occupied in the business; and
  1. (m)
    on 29 March 2019 Bella Harvesting issued a separation certified to Mr Gardner at his request.

Medical History

GP Consultation Notes[14]

  1. [43]
    Mr Gardner attended on various general practitioners at SHP Mackay prior to and following the injury.
  1. [44]
    On 6 May 2014, Mr Gardner attended a consultation with Dr Gert Maree.[15] Dr Maree’s consultation notes refer to:

longstanding backpain

physical nature of work

pain referred to L leg, +-L4 distribution

thrown off horse @ 18 y/o

++ tender midline T12-L2

P: CT dorso-lumber spine - r/v fri

  1. [45]
    Imaging studies were taken on 6 May 2014.[16] They concluded that:

Minor wedging of L1 and T12 vertebral bodies is likely longstanding.  No destructive bony lesion is seen.

Grade 1 anterolisthesis of L5 and S1 due to bilateral L5 pars defects.

Impingement of the exiting L5 nerve roots into the foramen.

Non neurocompressive disc at L4/5.  Mild degree of facet joint athropathy at L4/5 and L5/S1.

  1. [46]
    On 9 May 2014, Dr Maree saw Mr Gardner following receipt of the CT reported and summarised[17] the CT Report as follows:

Ct- T11/T12- 20% vertebral height loss – old compression #’s

grade II spondylolisthesis L5/S1, nerve effacement L, L5

…   

  1. [47]
    Dr Maree referred Mr Gardner to Physio Plus Mackay.
  1. [48]
    On 3 September 2014, Mr Gardner attended a consultation with Dr David Cleveland at the same clinic. Dr Cleveland noted that Mr Gardner had seen a physiotherapist and a Bowen Therapist.
  1. [49]
    Mr Gardner continued to attend on the same practice and saw Dr David Parker on 8 May 2015 and 24 June 2016 and Dr Norman Dawes on 6 November 2015, 4 May 2016, 1 November 2016 and 2 February 2017. The notes from these consultations do not refer to any reporting by Mr Gardner of any type of back pain.   
  1. [50]
    On 6 February 2018, Mr Gardner saw Ms Dominque Otis who recorded Mr Gardner’s history as including "Back pain. Bilateral shoulder pain. Bilateral elbow pain."
  1. [51]
    On 26 March 2018, Mr Gardner attended on Dr Dawes with respect to the injury. Dr Dawes' notes record the following:[18]

Surgery Consultation recorded by Dr Norman Dawes on 26/03/2018

Low Back Pain for 10/7 after bending down to work on gear box on tractor – bending & twisting for couple of hours; mechanical in nature; assoc radiation to R leg – R lateral thigh, nil below knee; no paraesthesia, numbness or weakness in legs; Bowel & bladder function normal; Previous low back pain see scan 2014

Normal gait; Tender L4 L5; Flexion – fingertips to mid tibia; extension – nil; lateral rotation – upper patella bilaterally ; SLR 45oR 70oL; no new neurological signs legs – peripheral neuropathy feet – longgstanding feet;

Discogenic Low back pain with R radiculopathy

Needs analgesia & CT scan then Review with results

? David straker, physio

? workcover – will DW manager

Reason for visit:

Disc prolapse

Actions

Imaging request printed to Queensland X-Ray: CT Scan – Lumbar spine. (Discogenic Low back pain with R radiculopathy)

Review with results

Prescription printed: Celebrex 100mg Capsule 1 Twice a day with meals – adv re s/e – short term use only

Prescription printed: Panadeine Forte 500mg;30mg Tablet 2 Before bed
 

  1. [52]
    Mr Gardner underwent a CT of his lumber spine on 26 March 2018. The following opinion was provided with respect to that CT Scan:[19]

Findings: All vertebral bodies are of normal height. No compression fractures are seen. There are mild apophyseal joint degenerative changes bilaterally at the lower three lumbar levels most marked at the L4/5 level bilaterally. There are chronic bilateral parts interarticularis defects of L5 with a Grade 1 spondylolisthesis of L5 on S1. The sacroiliac joints are normal.

At the L5/S1 level there is chronic degenerative disc disease with disc narrowing and vacuum phenomenon. There is uncovering of the posterior disc margin secondary to the spondylolisthesis not causing significant central canal or subarticular recess narrowing with no S1 never root compression. There is marked neural exit foraminal narrowing secondary to the spondylolisthesis with probable compression of the exiting L5 nerve roots bilaterally.

There is diffuse annular bulging of the L1/2, L2/3, L3/4 and L4/5 discs with moderate central canal and bilateral subarticular recess at all levels. There is a congenitally narrowed AP diameter of the spinal canal due to congenitally short pedicles. The neural exit foramina at these levels appear widely patent with no exiting nerve root compression.

Comment:

Chronic bilateral pars interarticularis defects of L5 with Grade 1 spondylolisthesis of L5 on S1 causing marked bilateral neural exit foraminal narrowing and probable compression of the exiting L5 nerve roots bilaterally.

Diffuse annular bulging of the remaining lumbar discs are all levels causing moderate central canal and subarticular recess narrowing at all levels further complicated by congenitally narrow AP diameter of the spinal canal with congenitally short pedicles at all levels. There is potential nerve root impingement in the regions of the subarticular recesses at these levels. No neural exit foraminal narrowing is seen at these levels with no exiting nerve root compression.

  1. [53]
    Mr Gardner attended on Dr Dawes on 4 April 2018 following the CT Scan. The notes from this consultation record the following:[20]

Surgery consultation recorded by Dr Norman Dawes on 04/04/2018

Low Back Pain has improved with analgesia

CT scan: bilateral pars defects with Grade 1 spondylolisthesis L5 on S1

Normal gait; Tender L4 L5; Flexion – fingertips to malleoli; extension – 20ol; lateral rotation – upper patella bilaterally ; SLR 60oR 56oL; no new neurological signs legs – peripheral neuropathy feet

Discogenic Low back pain with R radiculopathy

Sick cert- no workcover yet

Options discussed

Refer David straker, Physio initially – may benefit from nerve root injn

Review 19 04 2018

Reason for visit:

Disc prolapse

Actions:

Medical Certificate given from 16/03/2018 until 19/04/2018.

Prescription printed: Panadeine Forte 500mg;30mg Tablet 2 Before bed

Letter to David Straker printed.

Letter written to David Straker re. Specialist Referral.

  1. [54]
    On 19 April 2018, Mr Gardner attended a follow up consultation with Dr Dawes who recorded the following:[21]

Surgery consultation recorded by Dr Norman Dawes on 19/04/2018

 

Low Back Pain has improved a little with OTC analgesia – paracetamol & nurofen; panadeine forte does help a little

Less R radiculopathy symptoms

Physio no real help

Normal gai; Tender L4 L5 & R SIJ; Flexion – fingertips to malleoli; extension – 20o; lateral rotation – upper patella bilaterally ; SLR 50oR 60oL; no new neurological signs legs – peripheral neuropathy feet

Discogenic Low back pain with R radiculopathy

Needs workcover now – cert done

Options discussed – needs MRI scan

May benefit from nerve root injn

Review 03 05 2018

Remains unfit for any work

Reason for visit:

Disc prolapse

Actions:

Celebrex 100mg Capsule ceased (lack of effect).

Prescription printed: Panadeine Forte 500mg;30mg Tablet 2 Before bed

Letter printed.

Letter written re. *Qld Work Capacity Certificate.

Imaging request printed to Queensland X-Ray: MRI Scan – Lumbar spine incl SIJ. (Discogenic Low back pain with R radiculopathy symptoms

Also tender R SI joint

)

  1. [55]
    Mr Gardner attended Dr Dawes on 3 May 2018. Dr Dawes' notes record that Mr Gardner’s symptoms and signs regarding his back remain unchanged. Dr Dawes referred Mr Gardner to Dr Licina.
  1. [56]
    Mr Gardner saw Dr Dawes on 17 May 2018 who recorded that Mr Gardner’s symptoms were unchanged and described them as "mainly R radiculopathy symptoms but less severe on L." It is noted that the WorkCover claim has been accepted and Dr Dawes' notes "need to chase up appt Dr Licina to decide on level nerve root injection as multilevel & bilateral disease."
  1. [57]
    Following the caudal epidural injection on 6 June 2018, Mr Gardner attended on Dr Reyno Nieuwoudt on 18 June 2018. Dr Nieuwoudt’s notes record the following:[22]

Surgery consultation recorded by Dr Reyno Nieuwoudt 18/06/2018

Had caudal epidural injection and it made a significant difference to his radicular pain and this had now settled.

Both feet [sic] feeling numb but no weakness [sic] and no central caudal equiona sx.

No central spinal tenderness.

Good ROM in all fields but flexion fingers to mid lower legs.

SLR right 50 and left 75 degrees.

Normal lower limb power and sensation

Absent Bilat AJ and normal KJ

Reason for visit:

Back pain radiating to leg

Actions:

Letter printed.

Letter written re. *Qld Work Capacity Certificate

  1. [58]
    On 13 July 2018, Mr Gardner attended on Dr Dawes who made the following notes from that consultation:[23]

Surgery consultation recorded by Dr Norman Dawes on 13/07/2018

Dr Licina records noted – significant improvement with caudal epidural injection – radicular pain has now settled.

Normal gait;

Tender L4L5; Flexion – fingertips to mid tibia; extension – 20o;

SLR 60oR 75oL;

Has FU Dr Licina 02 08 2018 ? RTW – Jeff feels unable to return to physical job mechanical fitter & operator with jolting / jarring

Reason for visit:

Disc prolapse

Actions:

Letter printed.

Letter written re. WCND5.

NB Has form for diabetic bloods

  1. [59]
    Mr Gardner attended on Dr Dawes on 16 August 2018 complaining that his pain was more severe again. Dr Dawes made the following notes of that consultation:[24]

Surgery consultation recorded by Dr Norman Dawes on 16/08/2018

Low Back Pain more severe again with radiation into both legs – below knees; paraesthesia & numbness but no weakness in both feet

Normal gait; No focal tenderness L spine Flexion – fingertips to mid tibia; extension – 20o; SLR 60oR 60oL;stocking sensory loss feet; no motor weakness or foot drop in legs

Discussion re management options with Jeff & daughter – limited – will continue with Suitable Duties NSAIDs – no s/e

Has FU Dr Licina 30 08 2018

Needs BP medication

Examination:

General:

BP (sitting) 139/79

Height: 174cm

Weight: 91kg

BM: 30.01

Has forms for bloods – will get done

Reason for visit:

Disc prolapse

Actions:

Prescription printed: Coveram 10/10 10 mg; 10mg Tablet 1 Daily

Astrix 100 100mg Tablet ceased (No longer required).

Letter printed.

Letter written re. WCND6.

  1. [60]
    On 9 October 2018, Mr Gardner attended on Dr Dawes and indicated that he was managing with the suitable duties but not heavy manual work. Dr Dawes made the following notes of the consultation:[25]

Surgery consultation recorded by Dr Norman Dawes on 09/10/2018

See letter Dr Licina 06 09 2018 – second injection lasted less than 2 weeks

Taking NSAIDs regularly

Managing with Suitable Duties mechanic work but no heavy manual work

Has review with Dr Licina 17 10 2018 for review ? further steps in management

Reason for visit:

Disc prolapse

Actions:

Letter printed.

Letter written re. WCND7.

Prescription printed: Ibuprofen 400mg Tablet 1 Three times a day with meals

Still has not had bloods – given new form

Request printed to Sullivan Nicolaides: FBC; HbA1C; LFT; U/E; Cholesterol; Fasting Triglycerides; LDL; HDL; Creatinine; eGFR. (type 2 diabetes)

  1. [61]
    On 31 October 2018, Mr Gardner attended on Dr Dawes who made the following notes of the consultation:[26]

Surgery consultation recorded by Dr Norman Dawes on 31/10/2018

See recent letter Dr Licina – general agreement that surgery with spinal fusion is not a good idea

Also saw Dr axxon pain ( Not Brendan Moore) – given regular ibuprofen 400mg tds ( needs new script) with PPI cover ? somac – has box at home – will bring in when needs more

Normal renal function

Coping with restricted duties at work

For further phone follow up in November 2018 – no date fixed as yet

Normal gait: Tender L4 L5 S1 Flexion – fingertips to malleoli, extension – 20o; lateral rotation - upper patella bilaterally ;

Continue Suitable Duties

Review 28 11 2018 – sooner as required

Reason for visit:

Disc prolapse

Actions:

Letter printed.

Letter written re. WCND8.

Ibuprofen 400mg Tablet ceased.

Prescription printed: Ibuprofen 400mg Tablet 1 Three times a day with meals

  1. [62]
    On 4 December 2018, Mr Gardner attended on Dr Nieuwoudt who noted that the injection "under GA" on two occasions had taken away the "severe stabbing pain" and that Mr Gardner is "[n]ow able to drive a car again."
  1. [63]
    On 28 December 2018, Mr Gardner attended on Dr Rafeeq who reviewed Mr Gardner’s history and records Mr Gardener as indicating that he "feels lower back condition is the same."
  1. [64]
    On 21 February 2019, Mr Gardener attended a consultation with Dr Dawes who made the following notes of the consultation:[27]

Surgery consultation recorded by Dr Norman Dawes on 21/02/2019

Low back pain ongoing – work cover form has ceased – seeking legal advice

Has ceased analgesia

Unable to undertake normal physical work – mobility limited

Req rpt medication

Ceased atorvastatin – s/e

Examination:

General:

BP (sitting): 146/91

BP (standing): 137/84

Pulse: 84 Regular

Needs rpt bloods incl lipids then review with results

Reason for visit:

HYPERTENSION

Actions:

Ibuprofen 400mg Tablet ceased (No longer required).

Panadeine Forte 500mg;30mg Tablet ceased (No longer required).

Prescription printed: Coveram 10/10 10mg; 10mg Tablet 1 Daily

Request printed to Sullivan Nicolaides: FBC; HbA1C; LFT; Microalbuminuria; U/E; Cholesterol; Fasting Triglycerides; LDL; HDL; Creatinine; eGFR on 17/04/2019. (type [sic] 2 diabetes)

Evidence of Dr Cook 

  1. [65]
    An expert report of Dr Cook was tendered[28] and he gave evidence on the second day of the hearing. Additionally, a file note of a conference between Dr Cook and Mr Gardner’s legal representatives was also tendered into evidence.[29]
  1. [66]
    Dr Cook saw and examined Mr Gardner on one occasion on 26 July 2019. Dr Cook took a history from Mr Gardner that included the following:
  1. (a)
    that on 16 March 2018, he was working on a tractor and the cab on this particular machine is quite small and that he was working on the linkages that are situated under the seat and down on the side of the gearbox where there is very little room to work so had to stand outside the cab but had to bend and reach into the car and twist and bend low down in order to reach the part he was working on;
  1. (b)
    he had been doing that job all day and noticed that he had some stabbing pain in his lower back when he got off the tractor;
  1. (c)
    he had to sit down and rest for a while and the had trouble driving home as his right leg and foot would not work on the accelerator and brake pedal and that he used his left foot in order to do this;
  1. (d)
    he rested overnight but continued to have trouble walking and getting about and that he was also getting "muscle spasms" that were also going down his legs so when he was not improving he went to Dr Dawes;
  1. (e)
    he was put on WorkCover and was sent for a CT scan and an MRI;
  1. (f)
    he was referred to Dr Licina who referred him for a caudal injection that was carried out by Dr Moore;
  1. (g)
    the injection got rid of the stabbing pain he had been experiencing and he could walk better and move about a bit more freely;
  1. (h)
    he went to Spine Plus for rehab and physiotherapy in Brisbane and was given exercises to do at home and he also had reviews to check his progress including with Dr Licina;
  1. (i)
    he tried to return to work on light duties and a second caudal epidural injection was carried out and after this injection he felt that he was "a bit better only";
  1. (j)
    he saw Dr Licina again when his surgical options were discussed and that he went away to think about this but was subsequently cleared for full and normal duties by Dr Licina;
  1. (k)
    he had originally been given an appointment for 15 November 2018 about his decision in relation to surgery but if he proceeded with surgery it would be against Dr Licina’s advice;
  1. (l)
    he advised that his WorkCover claim was closed just before this appointment; and
  1. (m)
    he had been performing light duties up to WorkCover closing his claim and that he was paid up to December and was given holiday pay but has not worked since then to the time of his attendance on Dr Cook.
  1. [67]
    Dr Cook recorded the following complaints that Mr Gardner states were present at the consultation on 16 July 2019:
  1. (a)
    he continues to have low back pain that is present virtually all of the time, but this pain is dulled to a degree when he has taken painkillers including anti-inflammatories (brufen), Panadol osteo and Lyrica that he takes twice daily;
  1. (b)
    he also gets pain down both legs right as bad as the left especially from his knees down;
  1. (c)
    both feet and ankles feel numb and he has a feeling as if this part of his ankles and feet have been "wrapped in plastic";
  1. (d)
    he advised that he had lost a lot of his general level of mobility and activity and that his sleep has been disturbed though this was even worse before he was put on the Lyrica;
  1. (e)
    at times he felt that a cough or sneeze would drop him to the ground;
  1. (f)
    he is a smoker of up to 40 cigarettes per day; and
  1. (g)
    because of his lower back pain and leg pain he cannot bend or lift and that if he does try to do too much then he suffers a lot worse pain.
  1. [68]
    Dr Cook took a past history from Mr Gardner. Dr Cook recorded Mr Gardner as advising that he had no memory of any previous accidents or injuries to his lower back prior to 16 March 2018 though he did experience occasional twinges in his lower back but there were never bad enough to stop him from working or restrict him in any way prior to 16 March 2018.
  1. [69]
    Dr Cook diagnosed Mr Gardner as sustaining the following injuries as a result of the nature of the work that he was performing on a tractor in the course of his normal duties on 16 March 2018 as:
  1. (a)
    aggravation to a longstanding mild Grade I spondylolisthesis of L5 on S1 due to bilateral pars defects; and
  1. (b)
    aggravation to pre-existing degenerative changes lumbosacral spine that includes the L5-S1 intervertebral disc.
  1. [70]
    Dr Cook provided the following opinion with respect to Mr Gardner’s injuries:[30]

OPINION AND PROGNOSIS.

It is felt that the diagnosis listed above is consistent with the history as given by Mr. Jeffrey Keith Gardner that is outlined in the beginning of this report.

It is advised that generalised musculoligamentous injuries and/or soft tissue injuries including intervertebral discs and degenerative changes have the potential to go on improving for up to two years post-injury but any symptoms that are still present at the end of that two year time span would be considered to be permanent and therefore unlikely to improve with the passage of further time. When this gentleman was seen and examined on 26.07.2019 was noted to be one year four months and 10 days post-injury and that although there is time for further improvement to occur this would not be expected to be significantly great over the next six to seven months from the date of his attendance on 26.07.2019 making his condition to have just about reached maximum medical improvement and therefore stable and static.

With reference to the CT scan of the lumbosacral spine carried out on 26.03.2018 and the MRI scan of the lumbar spine carried out on 19.04.2018 both … show what appears to be an intact lumbar spine from T12 to L5 with preserved intervertebral disc spaces throughout this region of the spine and with desiccation of the intervertebral discs that is no more or less than consistent with his age of some 65 years at the time that these scans were carried out. These scans do confirm an old longstanding mild Grade I spondylolisthesis of L5 and S1 bilateral pars defects but the L5-S1 intervertebral disc does show gas or vacuum phenomenon that would indicate that this is very longstanding and the degeneration of the L5-S1 intervertebral disc is advanced or severe. It is felt that the Grade I spondylolisthesis of L5 on S1 has been present for most if not all of his adult like but because his degree of slippage of L5 on S1 is relatively small resulted in a stable segment.

It is noted that this gentleman advised that he has no memory of any previous accidents, injuries or problems of any sort in relation to his lower back though did advise that he has experienced some back aches from time to time but these have never been severe enough to either stop him from working seeking treatment or requiring him to be on light duties at work. It is felt that if this history is accurate and correct it would seem that the mild Grade I spondylolisthesis of L5 on S1 has been asymptomatic including the severe pre-existing degenerative changes at L5 on S1 except for mild twinges of back ache from time to time that have not caused any restriction or prevention of his normal work or employment. It is felt that this man's Work Records would confirm this. It is noted in the Medical Records provided by Sonic Health Plus Mackay that this man had an attendance on 06.05.2014 but this does seem to refer to tenderness in his T12-L2 region and that a CT scan apparently carried out at this time was reported as showing some loss of vertebral body height at the T11 and T12 as well as the spondylolisthesis of L5 on S1.

It has been the writer's experience that a very small number or percentage are found and diagnosed either at pre-puberty or post-puberty but the vast majority do not become symptomatic until somewhere around the mid to late 30s and early 40s when they are first diagnosed and require treatment but a considerable number appear to remain relatively asymptomatic allowing a person to reach normal age of retirement and that the condition is not diagnosed until X-rays or scans are carried out or some other medical condition or problem. It would seem that this gentleman was in this latter group as he appears to have worked for Bella Harvesting as a Service Maintenance Mechanic of the farm tractors and machinery and harvesters with no more than occasional back aches which would be considered to be normal in any of the trades be it Carpenters, Plumbers, Mechanics or Fitters. It would seem therefore that this man's attendance on 06.05.2014 on the Sonic Health Plus Mackay Medical Practice would appear to have been in his lower thoracic spine rather than the lumbosacral region. As the records indicate, a query of a possible compression at T12, L1.

It is noted that although he has had all the forms of conservative treatment to the time of his attendance on 26.07.2019 has not recovered sufficiently to be able to return to work even on modified duties. It is felt therefore that in view of the above that if this gentleman had been provided with an ergonomically safe and appropriate work environment that he would been able to continue working as a Service/Maintenance Mechanic for some further years and even to the age of 70 if he had so wished.

  1. [71]
    Dr Cook expressed the view that Mr Gardner would require further treatment in the future including:
  1. (a)
    day to day use of simple analgesic-type  prescription or over the counter medication, the possible use of one or other of the anti-inflammatory type medications if tolerated,  the use of heat, massage and physiotherapy that may also include acupuncture and/or TENS unit and combined with a suitably modified and initially supervised gym program;
  1. (b)
    injections of cortisone and local anaesthetic in to the pars defects bilaterally at L5 with CT guidance is recommended, or alternatively, the same injections with CT guidance injecting both the sacroiliac joins to exclude them as the source of low back pain with a potential cost in the region of $1600 to $1800 per occasion; and
  1. (c)
    a potential surgical option of an L5-S1 Spinal Fusion with Posterior Instrumentation and posterolateral bone grafts although such an operation should be delayed for some 18-24 months following Mr Gardner’s ceasing to smoke cigarettes.
  1. [72]
    Dr Cook opined that had Mr Gardner not sustained the injury on 16 March 2018 he would not have the potential need for the surgery.
  1. [73]
    In a file note dated 14 February 2020 Dr Cook is reported as saying:[31]

… it was a mystery to (me) that an injury can be described as a result of pre-existing degeneration simply because soft tissue pain had settled. A condition may be asymptomatic, and after the soft tissue pain has settled, the symptoms may persist over years ahead.

  1. [74]
    Dr Cook states that had the injury not occurred on 16 March 2018, Mr Gardner would have more likely than not have been able to continue carrying out all of his normal duties as a service/maintenance mechanic until 70 years of age or longer if he so wished.

Evidence of Dr Licina  

  1. [75]
    Dr Licina saw Mr Gardner for treatment on four occasions on 5 June 2018, 5 July 2018, 4 September 2018, and 17 October 2018.
  1. [76]
    On 14 November 2018 he produced a report,[32] at the request of WorkCover, that, inter alia, includes extracts for his clinical notes from his earlier consultations with Mr Gardner. The extracts provided a useful summary of Mr Gardner’s attendance on Dr Licina so I will include then in full as follows:

5 June 2018:

Geoffrey is a 65-year-old mechanic from Mackay. He has never had serious problems with his back. On 26 March this year, he bent down at work and developed the onset of back pain which was severe the next day. Pain was in the low back and down the right leg to the knee. With time this changed and now the pain is in his back and he has tingling and heaviness in his feet and ankles. His feet feel floppy if he walks any distance. He has not responded to physiotherapy. He is taking paracetamol and anti-inflammatories.

On examination, his lumbar range of motion was only mildly limited. He could heel and toe walk. He had no lower limb neurological deficit. His straight leg raise was reduced more on the right than the left due to posterior thigh pain.

CT scan shows isolated narrowing of the L5-S1 disc with an associated spondylolisthesis due to chronic pars defects. MRI scan confirms the L5-S1 disc degeneration and isthmic spondylolisthesis and shows bilateral foraminal narrowing with compression of the exiting L5 nerves.

Geoffrey has a work-related aggravation of pre-existing minimally symptomatic L5-S1 isthmic spondylolisthesis that has not settled with time and the usual treatment. I have suggested a caudal epidural steroid injection tomorrow and review of his exercise plan the day after. I would then organise a review in three weeks. If he is no better, consideration should be given to surgery which would be in the form of an interbody fusion at L5-S1 to restore the disc height and decompress the nerves. He has a WorkCover claim which obviously needs to be taken into consideration in the formulation of this treatment plan. 

5 July 2018:

Jeffrey has gained significant improvement. Back pain is minimal. He still has some altered feeling in his feet. I have reassured him that he is progressing well. Technically, he is fit for light duties with a 5kg lifting limit and minimal bending and twisting. He tells me there are no light duties at work, so he probably cannot go back yet. We plan to speak to him by phone in two weeks and review him here in four weeks, hopefully being able then to clear for full duties. His exercises have been upgraded significantly today and we will review these when we speak with him.

4 September 2018:

Jeffrey has had a recurrence of pain and we proceeded with more injections with Dr Brendan Moore. They were done yesterday. He has had complete relief of pain. He understands that his pain will return, but hopefully at a lower level. We advise that he continue with a conditioning program in Mackay with a team such as Physio Plus and that he be considered for some form of suitable duties in two weeks time. The goal would be returning to full duties four weeks after that and to us two weeks after that for a final review.

17 October 2018:

I was asked to see Jeffrey today as his recent injection has not had as much benefit as the first injections. He has ongoing back and leg pain. Overall however, when we review how he was when he first presented, he is better. He is taking Brufen and Panadol Osteo and continues to work, albeit with modified duties. I have told him that the only other option than persisting with his pain, is a major fusion operation. He and I both feel at this point in time it is not justified. It is difficult to predict how he will be in the future, but I feel that if he continues to be reasonable until the end of the year, he is unlikely to deteriorate significantly. If he does worsen, I am very happy to review him and discuss the options with him.

  1. [77]
    After referring to the above summary of attendances, Dr Licina, in response to questions posed to him by WorkCover, responded as follows:
  1. (a)
    no further treatment of Mr Gardner’s injury is planned;
  1. (b)
    Mr Gardner is cleared for full hours and duties;
  1. (c)
    Mr Gardner’s prognoses was for repeated flares of pain in the future that were anticipated to decrease in frequency and severity; and
  1. (d)
    Mr Gardner’s injury was stable and stationary.
  1. [78]
    Dr Licina did not see Mr Gardner between the consultation on 17 October 2018 and when he provided the responses to the question posed to him by WorkCover on 14 November 2018.  I will discuss this further below.

The approach to be taken when considering conflicting medical evidence

  1. [79]
    In Tyson v Simon Blackwood (Workers' Compensation Regulator)[33] Commissioner Neate summarised the relevant principles as to the proper approach to be taken to resolve evidence containing conflicting expert medical opinion as follows:
  1. (a)
    the tribunal of fact can be assisted by expert medical opinion evidence, but must weigh and determine the probabilities as to the cause of an ailment or injury having regard to the whole of the evidence; 
  1. (b)
    the tribunal's duty is to find ultimate facts and, so far as it is reasonably possible to do so, to look not merely at the expertise of the expert witness, but to examine the substance of the opinion expressed and (where experts differ) to apply logic and common sense to the best of its ability in deciding which view is to be preferred or which parts of the evidence are to be accepted;
  1. (c)
    only when medical science denies that there is a connection between, for example, certain events and a person's death can a judge not act as if there were a connection; but if medical science is prepared to say that it is a possible view, then the judge after examining the lay evidence can decide that it is probable;
  1. (d)
    the issue will not be resolved by counting witnesses;
  1. (e)
    the finding could be described as one based on the credibility of expert witnesses, having regard to such things as whether the witnesses display signs of partisanship in the witness box or lack of objectivity, and whether they make proper concessions to the viewpoint of the other side;
  1. (f)
    distinctions may be drawn on the basis of demeanour (a limited ground where experts are under consideration); qualifications, impressiveness and cogency of reasoning and exposition of reasoning; preparation for, and application to, the problem in hand; and the extent to which the witness had a correct grasp of basic, objective facts relevant to the problem;  and
  1. (g)
    if it is open to the tribunal to prefer one body of evidence to the other on grounds fairly discerned, the tribunal should express its reasoned preference.

(citations omitted)

  1. [80]
    I will adopt this approach when considering the medical evidence further below.

Consideration

  1. [81]
    The Commission must determine the following issues which can be posed, adopting the language of s 144A and s 144B of the WCR Act, as follows:
  1. (a)
    Has Mr Gardner’s incapacity because of the work-related injury stopped as at 2 December 2018?
  1. (b)
    Was medical treatment by a registered person no longer required for the management of the injury beyond 2 December 2018 because the injury was not likely to improve with further medical treatment or hospitalisation?
  1. [82]
    Mr Gardner bears the onus of proving his case on the balance of probabilities.
  1. [83]
    With respect to the first question, “the injury” referred to in s 144B(b) of the WCR Act is “the work related injury” referred to in s 144A(1)(a).
  1. [84]
    The work-related injury was attributable to the Mr Gardener performing work at Bella Harvesting on 16 March 2018.
  1. [85]
    It is necessary for the Commission to decide what constitutes Mr Gardner’s work-related injury.
  1. [86]
    The issue as to what constitutes Mr Gardner’s work-related injury is determined without contest as the parties are in agreement that the work-related injury is the injury accepted by WorkCover. That injury was described as a "work-related aggravation of a pre-existing minimally symptomatic L5 S1 spondylolistesis".
  1. [87]
    Mr Gardner contends that, on the day on which the payments ceased (and subsequently) he was experiencing symptoms that impaired his capacity to return to work.
  1. [88]
    It is necessary to determine the nature and extent of Mr Gardner’s incapacity and whether any incapacity on those dates arose because of the work-related injury.
  1. [89]
    The evidence of the lay witnesses paint a picture of Mr Gardner suffering from significant and debilitating symptoms following the work-related injury.
  1. [90]
    Mr Zillman and Mr Weller both describe Mr Gardner as having great difficulty in walking on some days and difficulty in performing everyday household duties such as hanging out the washing. Whilst I understand that the evidence of Mr Zillman and Mr Weller relates to the period following that in which Mr Gardner sustained the work-related injury, there was no evidence led that, at around 2 December 2018, Mr Gardner still continued to suffer from the same type of symptoms and, to the same extent, as described by those witnesses.
  1. [91]
    However, Mr Bella did provide evidence as to the extent of Mr Gardner’s symptoms during Mr Gardner’s attempts to return to work up to December 2018. It was Mr Bella’s evidence that upon Mr Gardner’s return to work he had difficulty performing suitable duties and needed to sit down after a short period to rest his legs and/or his back which were hurting him or going numb and that ultimately no suitable duties were available or able to be performed by Mr Gardner.
  1. [92]
    Mr Bella says that prior to March 2018, Mr Gardner was able to perform his duties in a capable manner. 
  1. [93]
    Mr Bella’s evidence was that after the work-related injury in March 2018, Mr Gardner was not able to work to such a level. His evidence was that Mr Gardner was unable to complete tasks due to his complaint of pain and numbness. One of the examples provided by Mr Bella included Mr Gardner’s attempt to strip down an irrigation motor but being unable to complete that task as his legs went numb and he "would actually change colour".[34] Under cross-examination, Mr Bella explained that the task of stripping down the irrigation motor involved very little bending and no twisting and, as the motor was on the back of the trailer and it was at "a reasonably good working height".[35]
  1. [94]
    Further, Mr Bella was asked if Mr Gardner had been offered duties driving a tractor. Mr Bella’s response was as follows:[36]

Okay. Was he ever offered duties of driving a tractor?---No [indistinct] he wouldn’t have got [indistinct]

Sorry. Look, I - - -?---Not after he got hurt. No. No, because even in his – when he would show up to work in his ute he would have trouble just sitting there in the ute and that. So a tractor is certainly a bit rougher than a ute.

Well, can I just explore that. Potentially, there would have been work for him available in driving a tractor. Is that right – if he wanted to?---If he was capable of it, yes.

Okay?---I don’t – well, he certainly didn’t think he was capable of it, and by what I saw he wasn’t capable of it.

Well, from - - -?--- [indistinct] sitting on a tractor and, you know [indistinct] certain jobs that can be done [indistinct] smooth. Other jobs are – the tractor is [indistinct] around a bit and quite bumpy, and there’s no way in the world he would have handled anything like that.

  1. [95]
    Mr Bella’s evidence was that Mr Gardner was not able to perform his work, including performing suitable duties, and a separation certificate was issued at Mr Gardner’s request.
  1. [96]
    The GP consultation notes which were tendered during the hearing and are referred to above indicate that Mr Gardner’s symptoms fluctuated during the period following the work-related injury. It was noted, in summary, as follows:
  1. (a)
    on 19 April 2018, that the lower back pain had improved with over the counter analgesia, but that Mr Gardner was unfit for work;
  1. (b)
    on 18 June 2018 and 13 July 2018, that Mr Gardner had significant improvement with the caudal epidural injection although on 13 July 2018 it was recorded that Mr Gardner felt unable to return to the physical job of mechanical fitter and operator;
  1. (c)
    on 16 August 2018, it was reported that Mr Gardner’s low back pain was more severe again;
  1. (d)
    on 9 October 2018, it was recorded that the second injection had lasted less than two weeks, and that Mr Gardner was managing with suitable duties but could not perform heavy manual work;
  1. (e)
    on 31 October 2018, it was recorded that Mr Gardner was coping with restricted duties at work;
  1. (f)
    on 4 December 2018, it was noted that the two injections had taken away the severe stabbing pain; and
  1. (g)
    on 21 February 2019, it was recorded that Mr Gardner is unable to undertake normal physical work and has limited mobility.
  1. [97]
    Dr Cook did not consult with Mr Gardner until July 2019. In Dr Cook’s report of 16 July 2019, he records Mr Gardner’s low back pain as being present virtually all the time. He also notes Mr Gardner as having pain down both legs and that his ankles and feet were numb. Dr Gardner notes that Mr Gardner cannot bend or lift as a result of the back pain.
  1. [98]
    Dr Cook concluded that Mr Gardner has not recovered sufficiently to be able to return to work even on modified duties.
  1. [99]
    On 17 October 2018, Dr Licina records that Mr Gardner had ongoing back and leg pain and continued to work but with modified duties. It was noted that the pain was better than when he first presented to Dr Licinia. Dr Licina advised that the only other option than persisting with the pain was a major fusion operation.
  1. [100]
    On 14 November 2018, Dr Licina produced the report to WorkCover wherein he stated that Mr Gardner is "cleared for full hours and duties". Prior to issuing that report Dr Licina had not consulted with Mr Gardner since the previous consultation on 17 October 2019.
  1. [101]
    The evidence summarised above must be considered together with the conclusions of Dr Cook and Dr Licina regarding Mr Gardner’s incapacity to work.
  1. [102]
    Dr Licina’s consultation notes from the last time he saw Mr Gardner on 17 October 2018 records him as having ongoing back and leg pain and working with modified duties.
  1. [103]
    Under cross-examination Dr Licina conceded that he had a limited understanding as to Mr Gardner’s full duties and relied on his team to assist in making a functional assessment.  The following passage from the evidence is relevant:[37]

I’m just trying to establish what you understood his full duties to be? --- I understood that he was a mechanic on heavy machinery, that’s all I understood.  And the reason that we work in a team is that, as a surgeon, it’s difficult for me to understand what’s required of them so we take the time to assess them with regard to a physiotherapist and an exercise physiologist looking at both what they can and can’t do and what they require doing, and then we come to a conclusion together.  So I rely on those people who have more expertise in this to work with me together and determine whether people can return to work.

  1. [104]
    Mr Gardner’ submits[38] that Dr Licina, under cross examination, could not remember what his understanding of Mr Gardner’s modified duties were when he wrote his report on 17 October 2018 and that he had no recollection of what Mr Gardner was actually doing upon his return to work on 7 August 2018 and onwards.
  1. [105]
    Mr Gardner submits[39] that it is apparent from the cross-examination of Dr Licina that he had a limited understanding of Mr Gardner’s work environment. The example provided by Mr Gardner was that Dr Licina did not know that he worked in a farm environment and did not know whether Mr Gardner was required to operate machines.[40]
  1. [106]
    Mr Gardner further submits[41] that when Dr Licina wrote the report to Workcover on 14 November 2019 clearing Mr Gardner for full duties that Dr Licina had not consulted with Mr Gardner between 17 October 2018 and 14 November 2018 and consequently he had no further information about Mr Gardner’s condition following 17 October 2018.
  1. [107]
    Mr Gardner submits[42] that Dr Licina stated that he "wasn’t asked to provide a certificate so I didn’t actually do the clearing" and stated it was "up to the general practitioner to do the clearing." Mr Gardner submits that in those circumstances, Dr Licina’s report is not evidence that Mr Gardner no had longer an ongoing incapacity.
  1. [108]
    Under cross-examination, Dr Licina clarified what he understood his role to be as follows:[43]

--- The role of the GP is to perform the actual clearance.  My role is to provide an objective opinion as to whether I think someone – from the point of view of their spine – is fit to return to work, and that was my opinion and I stand by my opinion.  If someone has pain and they can’t tolerate that pain then they perhaps can’t work, but that’s not due to any objective that I can determine.  So my role as a specialist is to say, “Is this man’s back fit for work?” And the answer is, “Yes”.

  1. [109]
    The difficulty with some parts of Dr Licina’s oral evidence[44] is that it does not completely accord with the report of 14 November 2018. Relevantly, Dr Licina did state in the report that Mr Gardner is "cleared for full hours and duties", whereas in his oral evidence he said that he "didn't actually do the clearing". A further difficulty with the statement is that Dr Licina was not aware of the nature and types of duties Mr Gardner performed.  Whilst I accept that it was Dr Licina’s practice to rely on other allied health practitioners associated with his practice to advise with respect to functional capabilities and assessment of patients, there is no evidence produced that such advice was provided to Dr Licina to assist him in forming his opinion provided in the 14 November 2018 report.[45]
  1. [110]
    I consider that the evidence does not explain the basis of Dr Licina’s opinion that Mr Gardner was "cleared for full hours and duties" in circumstances where:
  1. (a)
    on Mr Gardner’s last attendance on Dr Licina, Mr Gardner was still complaining of back and leg pain and performing modified duties;
  1. (b)
    there is no evidence that Dr Licina knew what Mr Gardner’s duties were; and
  1. (c)
    on Dr Licina’s oral evidence, he was not, in any event, clearing Mr Gardner for full hours and duties as that is the role of the general practitioner.
  1. [111]
    For these reasons, I have place limited weight on Dr Licina’s report of 14 November 2018 to the extent that he cleared Mr Gardner for full hours and duties.
  1. [112]
    On the totality of the evidence, which I have summarised above, I have concluded that the date on which payments ceased, and subsequently, Mr Gardner was incapacitated in that he was experiencing symptoms that impacted on his capacity to return to work.
  1. [113]
    The medical experts further disagree as to the cause of that incapacity.
  1. [114]
    Dr Cook states[46] that the event of 16 March 2018 is the sole catalyst for Mr Gardner’s pain. He states that it is this event that caused Mr Gardner to become symptomatic. 
  1. [115]
    Whilst Dr Cook accepted that Mr Gardner had an underlying condition that was aggravated and diagnosed as the work-related injury, he considered that the underlying condition was primarily asymptomatic prior to the injury in March 2018. He states that it was only from March 2018 that Mr Gardner commenced suffering from the symptoms and incapacity. Dr Cook expresses the view that the cause of the ongoing pain and symptoms was the work-related injury rather than the underlying condition.
  1. [116]
    Conversely, Dr Licina says[47] that whilst the work-related injury was the trigger for the onset of the symptoms suffered by Mr Gardner, the underlying degenerative condition is the cause for his ongoing symptoms. 
  1. [117]
    Matters referred to and relied on by the Regulator in support of its position that the underlying degenerative condition was the cause of Mr Gardner’s ongoing symptoms included:
  1. (a)
    Mr Gardner’s history of lower back pain and the extent to which Dr Cook knew of Mr Gardner’s past history; and
  1. (b)
    the nature of the work-related injury as a soft tissue injury and how such an injury resolves.

History of lower back pain

  1. [118]
    The Regulator submits[48] that the evidence supports a finding that Mr Gardner suffered from a history of lower back pain and that the continuing pain emanated from his longstanding degenerative condition. The Regulator submits that the knowledge of this history is vital in considering the medical evidence.
  1. [119]
    The Regulator’s position is that Mr Gardner’s history of lower back pain is one involving much more than "occasional twinges" as referred to by Dr Cook. The Regulator refers to the GP’s consultation records of 6 May 2014 and the entry that Mr Gardner suffered from "long-standing back pain". It submits it was that longstanding back pain which prompted the request for a  CT scan in 2014 to examine the lower part of Mr Gardner’s spine, as well as the thoracic spine, and is indicative of a history of lower back pain.
  1. [120]
    The Regulator also refers to the entry of Dr Maree on 26 March 2018 recording "previous low back pain, see scan 2014" and an entry on 6 February 2017.
  1. [121]
    The Regulator submits that, in assessing the medical evidence, regard must be had to the respective expert’s understanding of what the background history discloses. In this regard the Regulator submits that Dr Cook’s understanding of Mr Gardner’s prior history amounted to merely "occasional twinges" of Mr Gardner’s lower back and accordingly Dr Cook had limited understanding of the full extent of Mr Gardner’s history of lower back pain.
  1. [122]
    Mr Gardner disputes the Regulator's submission as to the limits of Dr Cook’s knowledge surrounding Mr Gardner’s history of symptoms in his lower back prior to the work-related injury.[49]
  1. [123]
    Mr Gardner submits that Dr Cook correctly understood the position in relation to his pre-existing symptoms in his lower back. It is submitted that Dr Cook's report dated 12 August 2019[50] confirms that Mr Gardner advised that "he had experienced some back aches from time to time, but these have never been severe enough" to prevent work or require treatment.[51] Mr Gardner submits that his evidence-in-chief supports this view, confirming that Mr Gardner had experienced lower back pain prior to March 2018 but not to the extent that necessitated Mr Gardner to miss days of work.[52]
  1. [124]
    Mr Gardner contends that Dr Cook's evidence confirmed that the medical records dated 6 May 2014 related to an attendance concerning Mr Gardner’s dorsolumbar spine which, in turn, supports Mr Gardner’s evidence with regard to his previous lower back pain.[53] Mr Gardner further contends that the Regulator’s attempt to attribute Mr Gardner’s treatment up to 3 September 2014 to a lower back condition, could have, as noted by Dr Cook, been unrelated to the lower back.[54] Rather, Mr Gardner submits that this treatment was specifically for the dorsolumbar injury.[55]
  1. [125]
    Mr Gardner’s evidence was that prior to the work-related injury he did experience lower back pain although it was "[m]ainly muscle strain, not like this one …" and that it usually occurred after a strenuous day at work, such as planting cane. He said that it did not typically cause him to miss work.[56]
  1. [126]
    Mr Gardner’s evidence was that he went to see Dr Maree on 6 May 2014 because he had a pain, higher up his back, around his ribs.[57] He described that pain has being located much higher than the work-related injury.[58]
  1. [127]
    Under cross-examination, Mr Gardner stated that the cause of the injury, for which he attended Dr Maree on 6 May 2014, was that he slipped on a concrete ramp and ended up across the side of the ramp and his evidence was that he thought he had broken a rib in the fall.[59]
  1. [128]
    The Regulator, in its submissions[60] was critical of Mr Gardner in that it submits that Mr Gardner had not described the mechanism of the injury when he was directed to the 6 May 2014 consultation during his evidence-in-chief.
  1. [129]
    I do not draw any inference from Mr Gardner’s failure to describe the mechanism of injury for the injury that caused him to see Dr Maree on 6 May 2014 in his evidence-in-chief. Whilst Mr Gardner was asked questions in his evidence-in-chief about his consultation with Dr Maree on 6 May 2014, he was not asked how the injury occurred.  Relevantly, Mr Gardner did provide the evidence as to the mechanism of injury when he was asked to describe it under cross-examination.
  1. [130]
    I further note in any event, that Dr Maree did record in the consultation notes "++ tender midline T12-L2" which is consistent with Mr Gardner’s evidence that when he fell on the ramp he had pain higher up in the vicinity of his ribs.
  1. [131]
    The Regulator submits[61] that it is remarkable that the mechanism of injury which Mr Gardner describes in his evidence-in-chief and, which presumably prompted the GP visit, was not specifically recorded by Dr Maree in his notes. However, I am unable to draw any inference from the apparent failure by Dr Maree to record the mechanism of injury in his consultation notes in the absence of those matters being put to Mr Gardner in the terms of the Regulator’s submissions and, further, in the absence of Dr Maree being called as a witness to give evidence about these matters.
  1. [132]
    I find that some time prior to his attendance on Dr Maree on 6 May 2014, Mr Gardner fell on a ramp and injured himself in the area around his ribs. I consider this finding to be supported by Dr Maree’s request of a CT scan querying whether there was a compression at the T12/L1 level and Dr Maree recording in his notes "++tender midline T12-L2" together with the evidence of Mr Gardner.
  1. [133]
    Accordingly, I find the attendance on Dr Maree on 6 May 2014 and the following treatment that Mr Gardner received up to 3 September 2014 to be unrelated to the underlying degenerative condition located in the area of Mr Gardner’s spine around L5/S1.
  1. [134]
    The Regulator submits that an inference may be drawn that Dr Maree’s reference in his notes to Mr Gardner having "longstanding back pain" at the consultation on 6 May 2014, is indicative of Mr Gardner having a history of longstanding lower back pain. Mr Gardner’s evidence was that he did not use the word "longstanding".[62] In the absence of hearing from Dr Maree, I am unable to conclude what he meant by the use of term "longstanding" (particularly in the context of Mr Gardner’s evidence that he fell on the ramp some time before his attendance on Dr Maree) and whether the location of the back pain Dr Maree is referring to is the lower back or whether it relates to the pain near Mr Gardner’s ribs associated with the fall.
  1. [135]
    In his consultation with Mr Gardner on 26 March 2018, Dr Maree records "Previous low back pain, see scan 2014". The scan being referred to is, presumably, the CT scan of 9 May 2014 which Dr Maree records found:[63]

Ct- T11/T12- 20% vertebral height loss – old compression #’s

grade II spondylolisthesis L5/S1, nerve effacement L, L5

  1. [136]
    The entry of 26 March 2018 describes Mr Gardner’s back pain as being previous and it appears, at least on the face of the consultation notes, that Mr Gardner does not complain of current back pain at the time of the consultation. This entry is similar to an entry of 6 February 2017 that notes a history of back pain (without stating the nature or location (within the spine) of the back pain). I find that these entries are broadly consistent with  Mr Gardner’s evidence that he did, from time to time, have lower back pain particularly during periods when he was performing heavy manual work but that it was different in nature to the work-related injury and did not make him miss work.
  1. [137]
    The matters which I have referred to above are matters broadly referred to by Dr Cook in his report. I find that Dr Cook did have an appreciation of Mr Gardner’s past history of back pain and the matters relied on by the Regulator do not act to disturb the opinion expressed by Dr Cook in his report.
  1. [138]
    I further conclude that Dr Cook's opinion accords with the description of the work-related injury accepted by WorkCover.
  1. [139]
    Relevantly, the accepted injury is described as a "work-related aggravation of pre-existing minimally symptomatic L5 S1 spondylolisthesis." As this description of the injury is accepted by the parties, it must follow that it is accepted that the underlying condition was, before the aggravation, minimally symptomatic.

The nature of the work-related injury

  1. [140]
    The Regulator contends that the nature of the work-related injury was that of a "soft tissue strain".[64] In support of this contention, the Regulator relies on the views expressed by Dr Licina that Mr Gardner working in a prolonged awkward position would only lead to a risk of "soft tissue strain" as opposed to an injury from, by way of example, a fall from a ladder.
  1. [141]
    The Regulator also relies on Dr Licina 's evidence that the prolonged nature of the activity Mr Gardner was performing would only involve considerations of muscle fatigue.[65] Dr Licina's evidence with respect to Mr Gardner's pain progress was as follows:[66]

His pattern of pain was typical of someone who had an exacerbation that was settling. So he was – he had nothing significant wrong on his imaging that was new, his examination was unremarkable and he had pain and that pain was reversible by injection. So that we consider that to be a flare-up of a problem that is improving.

  1. [142]
    During cross-examination, Dr Licina expressed[67] a view that the work-related injury was resolved by the first cortisol injection that Mr Gardner received on 6 June 2018. Dr Licina explained this view under cross-examination as follows:[68]

I don’t understand your evidence about the relevance of the injection and how – and how it is that you say that that’s really the cut-off point between the work event causing the symptoms and the underlying condition?---Well, I think that the work event triggered an inflammatory response and that inflammation was the source of his pain, and that was successfully reversed with the injection. Because the injection is only in the system for a few hours and so once that’s gone any ongoing effects after a week or so mean that the inflammatory state is gone. So I feel that whatever he’d flared up had been reversed by the injection and he was back to where he was.

  1. [143]
    The relevance of this evidence is that, according to Dr Licina, the inflammatory response triggered by the work-related injury had resolved following the first injection on 6 June 2018.
  1. [144]
    Dr Licina's view was the underlying condition put Mr Gardner at further risk of pain developing again and any continued pain would be associated with that underlining degenerative condition.
  1. [145]
    It is unclear from the evidence, particularly given that it was not until Dr Licina was cross-examined that he first expressed the view that the first injection resolved the work-related injury, what the purpose of the second injection was. Presumably, given Dr Licina's evidence, he would say that the purpose of the second injection was to manage the ongoing inflammation and pain associated with the underlying condition as opposed to any continued pain associated with the work-related injury.
  1. [146]
    I consider that the administration of the second injection, following the first injection, is indicative, despite some remission of the symptoms initially, that the symptoms worsened and required further treatment.
  1. [147]
    In this regards, Dr Licina records in his notes of the consultation with Mr Gardner on 5 July 2018 (approximately 4 weeks after the first injection), that Mr Gardner still complained of pain and symptoms similar to those that he complained of before the first injection, namely pain and altered feeling in his feet. Relevantly, Mr Gardner was not "cleared for full hours and duties" by Dr Licina at this consultation but, rather, it was recommended that he commence suitable duties with restrictions.
  1. [148]
    It is difficult to reconcile Dr Licina's view that the first injection resolved the work-related injury when the symptoms associated with the work-related injury, albeit to a varied degree, continued following the first injection.
  1. [149]
    Dr Licina's view in relation to the injury following the first injection was not expressed until he was cross-examined by Mr Gardner's counsel. This was after Dr Cook had given his evidence. Mr Gardner's counsel offered to recall Dr Cook so that the proposition (that the work-related injury was resolved following the first injection), could be put to Dr Cook. The Regulator contends that there was no basis to recall Dr Cook and that it had always been the Regulator's case that the work-related injury had resolved at least by the time of Dr Licina's report of 14 November 2018.
  1. [150]
    Dr Cook did express a view with respect to the nature of the injury. Relevantly, he stated:[69]

..it was a mystery to [me] that an injury can be described as a result of pre-existing degeneration simply because soft tissue pain had settled. A condition may be asymptomatic, and after the soft tissue pain had settled, the symptoms may then persist over years ahead.

  1. [151]
    This reasoning appears to be the basis upon which Dr Cook expressed the view that the ongoing symptoms cannot be fairly described as being attributable to the underlining degenerative condition. It was Dr Cook's view that, but for the incident of 16 March 2008, Mr Gardner could have continued to work safely in his chosen occupation until age 70.
  1. [152]
    The evidence before me is that Mr Gardner, prior to the work-related injury, did from time-to-time suffer back injury which was associated with heavy manual work. The evidence was that this pain did not require him to miss days of work. There is no evidence that prior to the work-related injury, that Mr Gardner had consistent lower-back pain, altered feeling in his feet and was unable to perform his duties. Relevantly, it was put to Dr Licina by Mr Gardner's counsel that if there was no work-related injury at all, would the symptoms have come about anyway. Dr Licina's response was as follows:[70]

No, I don’t think that they would’ve. They would’ve – well, it’s pure conjecture when they would’ve come on and how much force it would’ve taken.

  1. [153]
    Dr Licina's response to this question is suggestive that but for the work-related injury, it is unknown if and when (or at all) Mr Gardner might have experienced the symptoms he experienced following the work-related injury. Dr Licina's logic for arguing that the work-related injury has resolved is that the first injection would have addressed any inflammation triggered by that work-related injury. However, the difficulty with accepting that reasoning is that Mr Gardner continued to experience the same symptoms, albeit to a varying degree, following the first injection. Further, I consider that there is an absence of reasoning in Dr Licina's evidence to explain the conclusion he came to on 14 November 2018 that Mr Gardner was "cleared for full hours and duties" when on the last occasion Dr Licina saw Mr Gardner he was still suffering from pain, taking pain relief medication and working modified duties. I am also troubled by the evidence that Dr Licina had limited understanding of what Mr Gardner's duties were. For those reasons I accept the opinion of Dr Cook to the extent that it differs from Dr Licina.
  1. [154]
    Having regard to the totality of the evidence, including the reasoning behind the views expressed by Dr Cook and Dr Licina, and the records of the General Practitioners and Dr Licina's attendance notes of Mr Gardner's consultations and his continued reporting of experiencing symptoms, I consider that Mr Gardner's previously asymptomatic lower back became symptomatic and stayed symptomatic as a result of the work-related injury.
  1. [155]
    Accordingly, for these reasons, I have formed a view that Mr Gardner's work-related injury did not cease on 2 December 2018.

Is the work-related injury likely to improve with further medical treatment?

  1. [156]
    As it is the Regulator's submission that the work-related effects of the injury emanating from the 16 March 2018 work event have abated, it is assumed that the Regulator's position is that there are no ongoing symptoms applicable to the work-related injury, and accordingly, there is no need for further medical treatment in accordance with s 144B of the WCR.
  1. [157]
    Mr Gardner contends that he will require treatment as outlined by Dr Cook as follows:
  1. (a)
    day to day use of simple analgesic-type  prescription or over the counter medication, the possible use of one or other of the anti-inflammatory type medications if tolerated,  the use of heat, massage and physiotherapy that may also include acupuncture and/or TENS unit and combined with a suitably modified and initially supervised gym program;
  1. (b)
    injections of cortisone and local anaesthetic in to the pars defects bilaterally at L5 with CT guidance is recommended, or alternatively, the same injections with CT guidance injecting both the sacroiliac joins to exclude them as the source of low back pain with a potential cost in the region of $1600 to $1800 per occasion;
  1. (c)
    a potential surgical option of an L5-S1 Spinal Fusion with Posterior Instrumentation and posterolateral bone grafts although such an operation should be delayed for some 18-24 months following Mr Gardner’s ceasing to smoke cigarettes.
  1. [158]
    The evidence is that Mr Gardner required medication to assist with pain relief. When Dr Licina examined Mr Gardner on 17 October 2018, he recorded that Mr Gardner was taking Brufen and Panadol Osteo.
  1. [159]
    Dr Cooks' evidence was that when he saw Mr Gardner in July 2019, Mr Gardner took Brufen, Panadol Ostea and Lyrica to dull the pain. This is also consistent with the evidence given by Mr Gardner.
  1. [160]
    For the reasons already outlined herein, I have concluded that Mr Gardner continues to suffer an incapacity because of the work-related injury and that, given the evidence of Dr Cook, Mr Gardner will require medical treatment into the future. For these reasons, I consider that Mr Gardner's entitlement to payment for medical treatment, hospitalisation and expenses, should not be stopped.

Conclusion

  1. [161]
    For the forgoing reasons, I allow Mr Gardner's appeal.
  1. [162]
    I make the following orders:
  1. Allow the appeal;
  1. Set aside the decision of the Regulator dated 4 April 2019 and, in lieu thereof, issue a decision:
  1. (a)
    for the purpose of s 144A of the Workers' Compensation and Rehabilitation Act 2003 (Qld), the incapacity because of the work-related injury has not stopped; and
  1. (b)
    for the purpose of s 144B of the Workers' Compensation and Rehabilitation Act 2003 (Qld), the entitlement to the payment of medical treatment, hospitalisation and expenses under Chapter 4 for the work-related injury has not stopped. 
  1. The Respondent is to pay the Appellant's costs of and incidental to the appeal to be agreed, or failing agreement, to be subject to a further application to the Commission.

Footnotes

[1] Although in his evidence-in-chief Mr Gardner states that he was working in the role of a Field Hand for Bella Harvesting.  See T1-6 l18.

[2] Exhibit 13.

[3] Exhibit 14.

[4] Exhibit 14.

[5] Exhibit 14.

[6] Exhibit 1.

[7] T1-6 l27 – T1-10 l8.

[8] T1-13 l33 to T1-14 l1.

[9] T1-21 l19-20.

[10] T1-22 l41 to T1-24 l26.

[11] Exhibit 5.

[12] Exhibit 9.

[13] Exhibit 4.

[14] Exhibit 6 and Exhibit 7.

[15] Exhibit 6.

[16] Exhibit 7.

[17] Exhibit 6.

[18] Exhibit 6.

[19] Exhibit 7.

[20] Exhibit 6.

[21] Exhibit 6.

[22] Exhibit 6.

[23] Exhibit 6.

[24] Exhibit 6.

[25] Exhibit 6.

[26] Exhibit 6.

[27] Exhibit 6.

[28] Exhibit 10.

[29] Exhibit 11.

[30] Exhibit 10.

[31] Exhibit 11.

[32] Exhibit 14.

[33] Tyson v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 191, [27].

[34] T1-38 l14.

[35] T1-39 l23-30.

[36] T1-40 l14-31.

[37] T2-46 l25-33.

[38] Appellant’s submissions dated 3 August 2020, [67].

[39] Ibid, [68].

[40] Ibid, [68]

[41] Ibid, [70].

[42] Ibid, [71].

[43] T2-52 l44 – T-53 l2.

[44] To the extent that he said it was not his role to certify Mr Gardner as being cleared for work.

[45] However, there was evidence that such a practice was adopted on earlier occasions when Mr Gardner consulted with Dr Licina.

[46] Exhibit 11.

[47] Exhibit 16.

[48] Regulator's submissions dated 21 August 2020, [23].

[49] Appellant's submissions dated 31 July 2020, [35].

[50] Exhibit 10.

[51] Exhibit 10, page 8.

[52] See T1-13 l33 and T1-14 l1.

[53] Appellant's submissions dated 31 July 2020, [38].

[54] Ibid, [39].

[55] Ibid.

[56] T1-13 l33-47.

[57] T1-4 l10-12.

[58] T1-14 l15.

[59] T1-16 l28-29.

[60] Regulator's submissions dated 21 August 2020, [19].

[61] Ibid.

[62] T1-18 l15-17.

[63] Exhibit 6.

[64] At [35].

[65] At [35].

[66] T2-32 l33-37.

[67] He had not previously expressed this view in any prior written reports.

[68] T2-50 l7-15.

[69] Exhibit 11.

[70] T2-52 l14-16.

Close

Editorial Notes

  • Published Case Name:

    Gardner v Workers' Compensation Regulator

  • Shortened Case Name:

    Gardner v Workers' Compensation Regulator

  • MNC:

    [2021] QIRC 198

  • Court:

    QIRC

  • Judge(s):

    Hartigan IC

  • Date:

    04 Jun 2021

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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