Barra-Padilla v Simon Blackwood (Workers' Compensation Regulator)
[2014] QIRC 106
•20 June 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Barra-Padilla v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 106 |
PARTIES: | Barra-Padilla, Rodrigo v Simon Blackwood (Workers' Compensation Regulator) |
CASE NO: | WC/2011/429 |
PROCEEDING: | Appeal against a decision of Simon Blackwood (Workers' Compensation Regulator) |
DELIVERED ON: | 20 June 2014 |
HEARING DATES: | 1 and 2 August 2013 |
MEMBER: | Industrial Commissioner Black |
ORDERS : | 1. The Appeal is allowed 2. The Commission sets aside the decision of the Regulator and substitutes a new decision that the claim is one for acceptance 3. The matter of costs is reserved. |
| CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION - whether the injury was sustained pursuant to s 32 of the Act - where the appellant had sustained an injury three weeks' prior to the incident subject of the appeal for which his application for compensation had been accepted - whether second incident at work gave rise to a discrete injury or should be treated as a continuation of the condition resulting from first injury - whether s 237(3) precluded the appellant from succeeding on appeal. |
| CASES: | Workers' Compensation and Rehabilitation Act 2003, s 32(1)(3), s 131(1) s 237(3)s 550, s 558 |
| APPEARANCES: | Ms L. Willson, Counsel instructed by Parker Simmonds Lawyers for the Appellant. |
Decision
Brief History of the Claim
Mr Rodrigo Barra-Padilla ("the appellant") appeals a decision of the Review Unit of the Workers' Compensation Regulator ("the regulator") to reject his application for workers' compensation. The regulator's decision confirmed an earlier decision of WorkCover Queensland ("the insurer") which concluded that the appellant had not sustained an injury in accordance with s 32 of the Workers' Compensation and Rehabilitation Act 2003 ("the Act").
The appellant was employed as a part-time cleaner at the time of the alleged injury. The appellant claimed that he sustained a lower back injury while cleaning a stair case in a shopping centre on 29 March 2010. At the time of the alleged injury the appellant was performing work in accordance with a suitable duties program following an earlier injury at work on 8 March 2010 when he injured his lower back and left groin while lifting chairs. In addition to the physical injury on
29 March 2010, the appellant claimed that he also aggravated a psychological injury. The appellant's application for compensation arising from the injury sustained on 8 March 2010 was accepted by the insurer for an injury described as a "strain of the abductor muscle of the left groin, musculoligamentous sprain of the lumbosacral spine, with aggravation of pre-existing multi-level degeneration and adjustment disorder with mixed anxiety and depressed mood".
The appellant lodged a Notice of Claim for Damages with the insurer on
3 June 2011 in respect to the injuries claimed to have been sustained on
29 March 2010. The insurer rejected the claim on 2 August 2011. An application for review of the insurer's decision was filed with the regulator on 16 August 2011. On 14 October 2011, the regulator confirmed the insurer's decision to reject the claim on the grounds that the appellant's condition did not arise out of or in the course of his employment. The appellant now appeals the decision of the regulator to the Commission pursuant to s 550 of the Act.
A matter in contention during the proceedings was whether the claimed injury on
29 March 2010 should be considered as a discrete injury separate to that sustained on 8 March 2010 or whether it should be regarded as part of the on-going condition that resulted from the 8 March injury.Issue for Determination
The appellant claims that he has suffered a lower back injury and a psychological condition in accordance with s 32 of the Act which, for the purposes of determining this matter, provided:
"32 Meaning of injury
(1)An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury."
...
(3) Injury includes the following -
(a)a disease contracted in the course of employment, whether at or away from the place of employment, if the employment is a significant contributing factor to the disease;
(b)an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation -
(i)a personal injury;
Background Documents
The regulator tendered the following background documents (Exhibit 1):
· Q-COMP Notice of Claim for Damages dated 3 June 2011;
· WorkCover Queensland Reasons for Decision dated 2 August 2011;
· Q-COMP Application for Claim Review dated 16 August 2011; and
· Q-COMP Review Unit Reasons for Decision dated 14 October 2011.
Nature of the Appeal
The appeal to the Commission is by way of a hearing de novo. To succeed with his appeal, the appellant must establish on the balance of probabilities that he sustained an injury pursuant to s 32(1) of the act on 29 March 2010. In more particular terms, the appellant must establish that the pain that he experienced on 29 March 2010 constituted an injury or an aggravation which can be distinguished from any ongoing condition or symptoms arising from 8 March 2010 injury, and was therefore to be considered as a an injury separate from that event.
Evidence
During the course of the proceedings evidence was provided by seven witnesses. The witnesses for the Appellant were as follows:
· Rodrigo Barra-Padilla;
· Gloria Orayazun;
· Dr Kamal Dhaliwal;
· Dr Geoffrey Miller;
· Dr Maxwell Katz; and
· Dr Kenneth Cameron.
The witness for the Regulator was as follows:
· Dr HJP Khursandi.
Chronology and History
The chronology of events relevant to the appellant's claim is set out in the following table:
Date
Event Exhibit 8 March 2010 Injury at work stacking chairs 10 March 2010 WC claim lodged (statutory claim: SO9CD755839) 22 March 2010 X-ray of lumbar spine 22 March 2010 Ultrasound scan of left groin 29 March 2010/
30 March 2010Returns to work on suitable duties program. Experiences increased pain while cleaning stairs. No further work undertaken and returns home. 1 April 2010 Visits GP - Dr Jasmina Bajramovic. 4 6 April 2010 CT scan of lumbar spine 7 April 2010 Further visit to GP - Dr Stanley Lowe 4 7 April 2010 Dr Lowe issues workers compensation medical certificate 17 15 April 2010 Assessment by Dr Khursandi (Orthopaedic Surgeon) 16 20 May 2010 First consultation with Dr Dhaliwal (psychologist) 3 26 May 2010 First consultation with Dr Katz (psychiatrist) and first report 9 21 June 2010 MRI scan of lumbar spine 18 August 2010 First consultation with Dr Cameron (GP) 15 6 October 2010 Second report of Dr Katz 10 8 February 2011 Third report of Dr Katz 11 31 March 2011 Medical Assessment Tribunal Hearing 14 28 April 2011 Dr Carlisle's assessment of permanent impairment 2 3 June 2011 Notice of claim for damages (29 March 2010 injury) 1 1 August 2011 Dr Miller's assessment of the appellant 7 14 October 2011 Q-Comp Review Unit decision on NOC
(3 June 2011)11 November 2011 Notice of appeal to QIRC (NOC 3 June 2011) 23 May 2012 Fourth report of Dr Katz 12
The report prepared by Dr Carlisle (part of Exhibit 2) in relation to his assessment of permanent impairment documents the history of the appellant's injury in the following terms:
· "Mr Barra-Padilla developed pain in his low back radiating into his left groin while lifting chairs on 8 March 2010. He consulted a GP the following day.
· The claim has been protracted, and investigations have consisted of
x-rays of the lumbar spine on 22 March 2010 which demonstrated degenerative disease, an ultrasound scan of the groin the same day which was within normal limits, a CT scan of the lumbar spine on 6 April 2010 which demonstrated degenerative disease, and an MRI scan of the lumbar spine on 21 June 2010 which demonstrated Schmorl's nodes on L2 and L3, a small left-sided disc protrusion at L4/5 and other degenerative disease.· Treatment has been conservative, consisting of medication, physiotherapy, hydrotherapy, pilates, and gym strengthening, all of no significant benefit. There have been no injections or surgical procedures.
· Mr Barra-Padilla was examined by Dr Day and Dr Khursandi during the claim and surgery was not recommended.
· Mr Barra-Padilla developed psychological symptoms treated with psychological counselling, psychiatric consultation, and medication.
· Mr Barra-Padilla attempted to return to work on suitable duties and developed an exacerbation of left groin symptoms while cleaning a staircase. He has not returned to work since. "
Dr Carlisle's report also disclosed that the following investigations had been completed in connection with the appellant's injury:
· "X-rays of the lumbar spine on 22 March 2010 - no report available.
Dr Day reported degenerative disease· CT scan of the lumbar spine on 6 April 2010 - no report available.
Dr Day reported a Schmorl's node on L3. Broad based L4/5 disc bulge. Congenital stenosis at the L4/5 level· MRI scan of the lumbar spine on 21 June 2010 - Professor Gibbin reported small left paracentral disc protrusion at L4/5. Degenerative disease
· Ultrasound scan of the left groin on 22 March 2010 - no report available. Dr Day reported that the examination was within normal limits. "
Physical Injury
It was the evidence of the appellant's wife that when the appellant arrived home on 29 March 2010 "he was in great pain". She said his pain on or after 29 March 2010 was worse than what the appellant experienced prior to 29 March. The appellant's evidence of how he injured himself at work on 29 March 2010 is recorded at T2-9 in the following terms:
"The injury occurred because I was making an effort when you have to squeeze the mop. That sort of action you have to pull hard. And the other part was also when I had to - to do the skirtings of the stairs. He had explained to me how I should do it, which was by hand cleaning, and to do that you have to bend down, and then straighten yourself and then bend down again."
The appellant said that the pain in his back came on very severely and he had to go home. He said that the pain was so bad that he had difficulty in getting himself home. He said that he went to the doctor the next day and explained what had happened at work.
It is not in dispute that the appellant visited his GP on 1 April 2010 and discussed an incident at work on 29 March 2010. The GP in question, Dr Bajramovic, was not called to give evidence but her notes of the consultation on 1 April 2010 are in the evidence as Exhibit 4. The notes disclose that on Monday 29 March 2010 the appellant was told by his supervisor to clean some stairs in a sitting position. While the activity was not included in his suitable duties program the appellant complied with the request. On Tuesday 30 March 2010 he experienced an "exacerbation of pain" and did not attend for work Wednesday 31 March 2010 "because of pain". The examination disclosed left groin tenderness, reduced range of motion in the left hip and abduction pain.
The consultation with Dr Bajramovic followed earlier consultations with
Dr Andarawewa from the same practice arising from the work related injury on
8 March 2010. Dr Bajramovic's notes of the 1 April 2010 consultation included a review of the treatment given by Dr Andarawewa which referred to a "left groin strain"; a possible adductor strain; an X-ray of the lumbar spine with showed degenerative changes and an ultrasound of the left groin which showed "no hernia/adductor detachment". Dr Bajramovic arranged for a CT scan of the appellant's lumbar spine to be taken.On April 7 2010 the appellant returned to the practice where he was seen by
Dr Lowe. Dr Lowe's consultation notes (also Exhibit 4) include the following:"Has had the CT scan and this reports a mild L4-5 spinal canal stenosis - This does not seem to be the level of concern for his inguinal symptoms which would relate to L1 dermatome referral. The CT looks OK there although we have not view of the disc at this level. He has pain on lateral rotation of the hip but medially is OK. He does feel some pain in the Lumbosacral region with resisted hip movement but this is not likely to be psoas strain I feel. His movement range of the lumbosacral region is almost normal although he is aware of discomfort in the whole lumbar spine with the movements (Rotation is painless)".
Dr Lowe issued a workers compensation medical certificate on 7 April 2010. The certificate included the following diagnosis of injury:
"Adductor tendon injury left groin, pain and tenderness in the lumbar spine. Soft tissue injury".
The certificate also included the following further information:
"Yesterday relapse - sudden exacerbation of pain on Tuesday afternoon, following cleaning of staircase (which was not in suitable duties program)".
Dr Khursandi completed an assessment of the appellant at the request of WorkCover on 15 April 2010. The report prepared by Dr Khursandi is in the evidence as Exhibit 16. In recording the history provided by the appellant the report states that on 8 March 2010 the appellant "developed sudden acute pain in the left lumbar region of his lower back, with radiation to the iliac crest and left groin". The report stated that the appellant described a constant pain in the left lumbar region of his back and intermittent pain in the left groin. The report concluded that the appellant's back symptoms were due to aggravation of pre-existing degeneration of the lumbar spine and a musculoligamentous sprain, while the groin pain was due to an adductor tendon injury. Both injuries were stated to have resulted from the same activity at work on 8 March 2010.
In completing his report Dr Khursandi relied on his examination of the appellant as well as the results of a CT scan taken on 6 April 2010. He also noted that the appellant's GP arranged for an ultrasound scan of the left groin following the
8 March 2010 injury. It was Dr Khursandi's testimony (T2-5) that the CT scan disclosed the degeneration described in his report and that it did not provide evidence of specific injury whether sustained on 8 March or 29 March 2010. He diagnosed the 8 March injury as an aggravation.
In his report Dr Khursandi noted information to the effect that after commencing a return to work program on 29 March 2010 the appellant's pain increased in severity when he was cleaning a staircase. However it appears from the expression of the report that this information had been provided to Dr Khursandi by WorkCover and that it had not been elicited in the history obtained from the appellant. Notwithstanding the source of the information, it was Dr Khursandi's evidence in the proceedings that his diagnosis took into account both the 8 March and 29 March 2010 workplace incidents. It was his view that the pain experienced by the appellant on 29 March would probably have been a manifestation of the appellant's natural degeneration. He was not of the view that the 29 March event added to the appellant's impairment.
In commenting on restrictions that might be included in a suitable return to work program, Dr Khursandi observed in his report at page 5 that it would be advisable for the appellant to avoid particular activities during the course of a suitable duties program and subsequent work duties as a "possible recurrence of aggravation of his degenerate lumbosacral spine cannot be ruled out". In his oral testimony Dr Khursandi conceded that it was possible that the appellant had suffered a further aggravation on 29 March 2010,
Dr Miller first examined the appellant on 1 August 2011 at the request of the appellant's lawyers. His report arising from the examination is in the evidence as Exhibit 7. In preparing his report Dr Miller had reviewed the CT scan taken on
6 April 2010, the 19 April 2010 report of Dr Khursandi, the reports of Dr Katz and Dr Dhaliwal and certain information from the appellant's treating general practitioners. Dr Miller expressed the opinion in his report that it would appear that the appellant's condition worsened after his attempted return to work on
29 Mach 2010.In his report Dr Miller said that information provided by one of the appellant's GP's, Dr Andarawewa, in correspondence dated 19 March 2010 indicated that most of the appellant's symptoms after the 8 March injury were in his left groin. He then stated that following the event on 29 March 2010 that it appeared that the appellant's main problem was with his lumbar spine.
The evidence however does not support such a differentiation between the injuries claimed to arise from the two events. Firstly the information provided by
Dr Andarawewa was not tendered into the evidence. Secondly while the report of Dr Khursandi post-dates both workplace incidents there is nothing in the history provided by the appellant or the diagnosis of injury to support the view that only groin pain was experienced after the incident on 8 March 2010. The history provided to Dr Khursandi includes the statement that when lifting a heavy chair the appellant developed "sudden acute pain in the left lumbar region of his lower back, with radiation to the iliac crest and left groin". There is no indication here of predominant groin pain. Thirdly in the history provided to Dr Dhaliwal the appellant said that as a result of his injury on 8 March 2010 he experienced "severe back pain on an ongoing basis". Fourthly the history taken from the appellant by
Dr Katz on 26 May 2010 referred to the appellant saying that he put his back out on 8 March 2010 "from which he described pain radiating down his left leg". Finally, Dr Miller's own report records a history to the effect that on 8 March 2010 while lifting chairs the appellant experienced sudden pain in his lumbar spine with pain radiating into his left groin and later into his left lower leg.
In his evidence in the proceedings Dr Miller acknowledged the inconsistency. However he maintained that the injuries were different based on the appellant's account that his back pain became more severe after the 29 March workplace incident. It was Dr Miller's opinion that "the second injury was also a
musculo-ligamentous strain but it resulted in an aggravation of his back condition rather than an exacerbation of his back condition. An aggravation meaning that the second injury caused his condition to progress to a worse position than it was at at the time of the first injury on the 8th of March 2010" (T1-21). He further opined at T1-21/22 that:
"Well, the - the point I would make in that regard is that, sure, he did still have symptoms when he went back to - to work and they became worse after the second incident, but the first injury recovered to a point that he might have had some ongoing pain but he was at least able to go back to work on modified duties. After his second injury, which I believe has made his condition worse, he has been unable to return to work, that's why I base it on the fact that the second injury was worse. And if you read his local doctor's notes, Dr Andrew Weirer, if you read through them day by day by the - by the 16th of April he's got much more severe lower back pain which is still radiating to his left groin and he's arranging MRI scans and all sorts of extra investigations. The reason I think that the injury's an aggravation on the 29th of March 2010 is that following this injury he has had more severe symptoms and he has not been able to return to the workplace, whereas after the first injury he still had, I agree, residual symptoms, but he was able to at least come back to work on light duties."
[The reference in the transcript to the local doctor's notes and to "Dr Andrew Weirer" should have been correctly transcribed as "Dr Andarawewa".]
Psychological Injury
While Dr Khursandi stated in his report of 19 April 2010 that he did not identify "any psychosocial factors that could have an impact on treatment, recovery and return to work", both Dr Dhaliwal (clinical psychologist) and Dr Katz (psychiatrist) arrived at different conclusions.
Dr Dhaliwal first saw the appellant on 20 May 2010 and prepared a report for WorkCover which is dated 27 January 2011 (Exhibit 3). In this report Dr Dhaliwal indicated that he provided psychological therapy for the appellant on 18 occasions between 20 May 2010 and 20 December 2010. The therapy was provided in response to a back injury sustained by the appellant when lifting and stacking chairs at work on 8 March 2010. The appellant told Dr Dhaliwal that the injury was causing severe back pain on an ongoing basis. The appellant attributed his depressive symptoms to the loss of his ability to work, lack of clarity about his future, concern about his recovery, difficulty with maneuverability and chronic pain impacting on his day to day functioning. The appellant was diagnosed with an adjustment disorder with mixed anxiety and depressed mood. In his oral testimony Dr Dhaliwal said he did not recall the appellant alluding to a second injury on
29 March 2010.
Four reports of Dr Katz were tendered into the evidence as Exhibits 9, 10, 11, and 12. Exhibits 9, 10, and 11 were prepared at the request of WorkCover while Exhibit 11 was prepared at the request of the appellant's lawyers. None of the three WorkCover reports include any mention of an injury on 29 March 2010. The first report (Exhibit 9) was prepared after an assessment of the appellant on
26 May 2010. The history provided by the appellant referred to an injury at work while lifting chairs on 8 March 2010. The main stressor was identified as a fear about future employability. The second report dated 6 October 2010 (Exhibit 10) recorded that the appellant had "repeatedly emphasised the fact that he no longer believes he can return to his pre injury work as a commercial cleaner because of his physical injury and chronic pain". The third report dated 8 February 2011
(Exhibit 11) concluded that the "original diagnosed psychological injury of Adjustment Disorder with Mixed Anxiety and Depressed Mood has essentially remained unchanged due to the ongoing stressors Mr Barra-Padilla has been experiencing, particularly with regard to managing the chronic pain, incapacity and uncertainty about his future employability, and also financial independence while further anxieties have impacted on his mental state and aggravated the same".
Dr Katz compiled his fourth report on 23 May 2012 (Exhibit 12) in response to a request from the appellant's lawyers that he consider the impact of both the
8 March and the 29 March 2010 incidents on the appellant's psychiatric condition. In the report Dr Katz expresses the opinion that "the second incident aggravated the first" with the appellant experiencing a downturn in his condition. In terms of evidence of a contemporaneous link between the psychiatric assessments and the
29 March 2010 incident, the appellant relied on an entry in Dr Katz's consultation notes of 26 May 2010 (Exhibit 13) where the words "2nd injury" were recorded.
The appellant's wife expressed a view about the appellant's psychological state in her evidence. She said at T1-8 that she noticed a change in his psychological condition after 29 March 2010. She said that the appellant demonstrated changes in mood and had problems interacting with people. He exhibited feelings of frustration and he could become verbally aggressive. The appellant said in his evidence that his attitude to life and his activities had completely changed. He no longer goes for walks or to dances and he has become an anti-social person.
In his oral testimony Dr Dhaliwal said that if there were other injuries (additional to the injury on 8 March 2010) then he would expect that this would have an impact on the appellant. While Dr Katz declined to quantify the contribution made to the appellant's psychological state by the 29 March incident, he stated that if the
29 March incident had led to an aggravation of the back condition resulting in chronic pain and further disability then he could only presume that the incident "had a significant contribution to the level" of the appellant's already acknowledged reactive symptoms to the incident on 8 March 2010.The evidence is sufficient to support a finding that it was more probable than not that the appellant's psychological or psychiatric condition would have been adversely impacted by any aggravation of his back condition sustained on 29 March 2010.
Conclusion
The question for consideration on the medical evidence is whether the appellant's
1 April and 7 April 2010 consultations should be considered as part of the continuing treatment of the symptoms experienced as a result of the 8 March 2010 injury, or whether the consultations were in response to a further aggravation of the appellant degenerative lower back condition which should be considered an injury separate from that sustained on 8 March 2010. The notes of Dr Bajramovic
(1 April 2010) and Dr Lowe (7 April 2010) establish that the appellant experienced significant pain at work on 29 March 2010 causing him to stop work and preventing him from resuming work for a significant period of time.
The regulator relied on the evidence of Dr Khursandi to support a conclusion that the experience of on-going back pain was an expected consequence of a pre-existing degeneration of the lumbar spine and that it did not constitute an injury or an aggravation separate from the 8 March 2010 event. The appellant on the other hand relied on the evidence of Dr Miller in pressing the case that the workplace incident on 29 March 2010 amounted to a further aggravation of a pre-existing degenerative back condition.
Neither report is free of limitation or deficiency. Dr Khursandi's assessment of the appellant on 15 April 2010 was undertaken after both workplace events and a matter in contention is whether his report, for the purposes of this matter, could reliably distinguish between the injury of 8 March and the claimed injury of 29 March. In terms of investigations, Dr Khursandi's opinion was based on a CT scan of the appellant's lumbosacral spine which was taken on 6 April 2010 (after both incidents).
Dr Khursandi's report was issued at the request of Workcover. The appellant was instructed by WorkCover to undergo the assessment by Dr Khursandi in relation to his claim for compensation arising out of the injury sustained on 8 March 2010. This was the purpose of the assessment and a reading of the report suggests that the history taken from the appellant was limited to the 8 March 2010 injury. Notwithstanding this it is accepted that Dr Khursandi took both the 8 March and 29 March 2010 incidents into account in reaching the conclusions or opinions expressed in his report. The more significant consideration goes to what information relating to the 29 March incident Dr Khursandi took into account.
On page 2 of Dr Khursandi's report, under the heading "Subsequent Progress/Specialist Management", the following comments are made:
"According to information provided by you, he was commenced on a return to work program on 29 March 2010 and on 30 March 2010, his pain increased in severity when he was cleaning a staircase.
He has been treated with physiotherapy and Nurofen tablets since and has been advised to remain off work by his general practitioner."
This extract suggests that Dr Khursandi has either been provided with certain information from WorkCover and/or he has been given access by WorkCover to the notes of the appellant's consultations with Dr Bajramovic and Dr Lowe on 1 April and 7 April 2010. Given that there is nothing in his report nor his oral testimony to suggest that he asked the appellant to provide his own history of relevant matters associated with the workplace incident on 29 March 2010 it appears that
Dr Khursandi may have relied on an incomplete history in expressing his opinions and conclusions about the impact on the appellant of the 29 March 2010 incident.It follows that there is a reasonable doubt that Dr Khursandi's view that the
29 March 2010 event should not be considered as anything other than part of the natural progression of the degeneration in the appellant's lumbar spine was arrived at without taking into account a history directly from the appellant about what occurred on 29 March 2010 and what symptoms and pain the appellant experienced immediately after 29 March 2010.These considerations suggest that Dr Khursandi's report of 19 April 2010 should not be regarded as determinative in respect to matters associated with the workplace event on 29 March 2010. Having said this I also have reservations about the weight to be given to Dr Miller's evidence when regard is had to the following factors:
·Dr Miller's assessment of the appellant did not take place until
1 August 2011 which was well after the 8 March and 29 March 2010 events;·Dr Miller's conclusion that a second injury had been sustained is diminished by his reliance on either an incorrect or inconsistent history in that he accepted that most of the appellant's symptoms arising from the 8 March injury were in the left groin, while the main problem arising from the 29 March incident was with the lumbar spine. Most of the evidence adduced in the proceeding pointed to the fact that the appellant sustained a painful lower back injury on 8 March 2010;
·Dr Miller may have been given an incorrect or inconsistent history in terms of the description of the mechanism of injury claimed to have been sustained on 29 March 2010 ;
·In reaching his conclusion Dr Miller took into account a letter and a report prepared by Dr Andarawewa which were not tendered into the evidence of the proceedings.
After weighing all the evidence I have formed the view that, on the balance of probabilities, the appellant suffered increased pain as a result of the workplace incident on 29 March 2010, and that his condition worsened when compared to the symptoms and pain he experienced prior to 29 March. These conclusions are supported by the following facts or findings of fact:
·The appellant's condition caused him to cease work and prevented him from resuming work for a significant period of time;
· One or two days after the workplace incident the appellant visited his GP and reported increased pain. The notes of Dr Lowe and Dr Bajramovic confirm these developments. The consultation on 1 April 2010 led to a decision to conduct a CT scan of the lumbar spine which had not been requested immediately after the 8 March 2010 injury;
·The scan was taken on 6 April 2010 and the next day the appellant again attended at the same medical practice and was seen by Dr Lowe who reviewed the CT scan. On the same day Dr Lowe issued a workers' compensation medical certificate which referred to a "relapse" and a "sudden exacerbation of pain on Tuesday afternoon following cleaning of staircase".
· The evidence of the appellant and his wife suggest that the appellant's condition worsened significantly after the 29 March 2010 incident;
· Dr Khursandi conceded in his evidence that it was possible that the appellant had suffered a further aggravation on 29 March 2010 – a possibility that he had warned about in his written report.
The aforementioned considerations support a conclusion that the onset of pain on
29 March 2010 was indicative of something more serious than a recurrence or continuation of symptoms experienced prior thereto as a result of the 8 March 2010 injury. In so concluding I am persuaded to accept the reasoning of Dr Miller's at
T1-22 where he said that the "reason I think that the injury's an aggravation on the 29th of March 2010 is that following this injury he has had more severe symptoms and he has not been able to return to the workplace, whereas after the first injury he still had, I agree, residual symptoms, but he was able to at least come back to work on light duties."
It follows that I accept that the appellant suffered a further aggravation of pre-existing degeneration of the lumbosacral spine while cleaning stairs at work on
29 March 2010.
Section 237 of the Act
The regulator submitted that should the Commission find that the appellant has suffered injuries in the workplace event of 29 March 2011, the Commission should determine whether the appellant is entitled to seek damages pursuant to s 237 of the Act. The appellant however asserted that the jurisdiction of the Commission was confined to answering the same question that was decided by the review unit of the regulator, and that the Commission was not empowered to investigate and decide the appellant's compliance with other sections of the Act. The Commission therefore was only required to determine whether the appellant had sustained an injury pursuant to s 32 of the Act.
It is accepted, pursuant to s 237(3) of the Act, that if the appellant has accepted an offer of payment of lump sum compensation for an injury he is not entitled to seek damages in respect of that injury. The matter in contention is whether the appellant, in his notice of claim for damages dated 3 June 2011, is seeking damages for the same injury in respect of which he has already received compensation.
In his notice of claim for damages the appellant is required to include "particulars of all injuries alleged to have been sustained because of the event". In his 3 June 2011 claim the appellant provided the following particulars:
Part of the body injured Nature of injuries Lower back Aggravation of pre-existing lumbar spondylosis Psychological Adjustment disorder with mixed anxiety and depressed mood
The appellant was made an offer of lump sum compensation following a notice of assessment issued on 3 May 2011. The notice of assessment related to an application for compensation lodged with WorkCover Queensland on
10 March 2010 claiming compensation for an injury sustained in the workplace on
8 March 2010 (Statutory Claim File SO9CD755839). The notice of assessment identified the date of injury as 8 March 2010 and included the following description of injury:
Injury description Strain of the abductor muscles of the left groin Musculoligamentous sprain of the lumbosacral spine, with aggravation of pre-existing multi-level degeneration Adjustment disorder with mixed anxiety and depressed mood
The appellant accepted the offer on 2 June 2011. The "Decision about the offer" form states inter alia that "as you have been assessed as having a physical injury with a WRI of less than 20%, you must make a choice between accepting the offer and seeking damages for your injury".
The notice of appeal lodged with the Industrial Registrar on 14 November 2011 stated that the appeal was made pursuant to s 550 of the Workers' Compensation and Rehabilitation Act 2003 against a decision of the regulator's review unit dated
14 October 2011. In that decision the review unit confirmed the decision of WorkCover to reject the appellant's application for compensation, and therefore the notice of claim for damages, dated 3 June 2011. The review unit did not reject the application for compensation on grounds related to s 237(3) of the Act but because it was concluded that the claimed physical and psychological injuries did not arise out of or in the course of employment. The question posed and answered in the review unit's decision therefore was whether the appellant's injury arose out of or in the course of employment if employment was a significant contributing factor. It is in these circumstances that the appellant submits that the Commission's jurisdiction is limited to a determination about whether the appellant suffered an injury pursuant to s 32(1) of the Act on 29 March 2010.The powers of the Industrial Relations Commission are defined in s 558 of the Act in the following terms:
"558 Powers of appeal body
(1) In deciding an appeal, the appeal body may—
(a)confirm the decision; or
(b)vary the decision; or
(c)set aside the decision and substitute another decision; or
(d)set aside the decision and return the matter to the respondent with the directions the appeal body considers appropriate.
(2)If the appeal body acts under subsection (1)(b) or (c), the decision is taken for this Act, other than this part, to be the decision of the insurer.
(3)Costs of the hearing are in the appeal body’s discretion, except to the extent provided under a regulation."
The regulator relied on a decision of the Commission in Abbott[1] to press the case that the Commission should proceed to make a determination pursuant to s 237 of the Act to the effect that the injury sustained on 29 March 2010 was the same injury as that sustained on 8 March 2010. Such a determination, if made, would mean that pursuant to s 237(3) the appellant would be precluded from proceeding with his claim for damages.
[1] Q-COMP v Abbott (WC/2013/154) - Decision < type="1">
In Abbott[2] it was decided that "the Commission, in presiding over a hearing de novo, is entitled to satisfy itself that the appeal before it is not a nullity and, in the circumstances of this case, that the application for compensation has been validly made; however, conduct directed to the satisfaction of jurisdiction does not extend, in my view, to the resolution of all the questions that Q-COMP submit need to be answered." In that matter it appeared that neither the insurer nor the regulator had specifically decided to extend time for an application that was lodged out of time in circumstances where s 131(1) of the Act provided that, except where the insurer waived the requirement, applications were "neither valid nor enforceable unless they are lodged within 6 months after the entitlement to compensation arises". In Abbott[3] the Commission declined to find that that the application before it was a nullity on the ground that it could not be satisfied that the insurer had not extended time.
[2] Q-COMP v Abbott (WC/2013/154) - Decision < Ibid
The application by the regulator requires findings of fact to be made about the injuries sustained on 29 March and 8 March 2010, and a determination made on the facts about whether the injuries are the same for the purposes of s 237(3). I do not believe that it would be consistent with the scheme of the act, including the provisions of section 558, for the appeal body (the Commission) to decide the relevant question or questions without the matter having received prior consideration by the regulator and/or the insurer. It follows that in the determination of this matter I should be confined to answering the same question which was decided by the regulator in its decision dated 14 October 2011. Therefore I am not prepared to accede to the regulator's request to proceed to make a determination about the application of s 237(3).
The appeal is successful. I find that the appellant suffered a further aggravation of a lower back injury on 29 March 2010 and that his claim for compensation in this regard is one for acceptance. I also find that the appellant's psychological or psychiatric condition was aggravated by the lower back injury sustained on 29 March 2010.
The matter of costs is reserved.
I order accordingly.
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