Embleton v Simon Blackwood (Workers' Compensation Regulator) - [2015] QIRC 96

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Embleton v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 096
PARTIES:	Embleton, Georgia (Appellant) v Simon Blackwood (Workers' Compensation Regulator) (Respondent)
CASE NO:	WC/2014/270
PROCEEDING:	Appeal against a decision of Simon Blackwood (Workers' Compensation Regulator)
DELIVERED ON:	21 May 2015
HEARING DATE:	21 and 23 January 2015 16 February 2015 (Appellant's submissions) 27 February 2015 (Respondent's submissions in reply) 2 April 2015 20 April 2015 28 April 2015 (Appellant's further limited submissions in reply)
MEMBER:	Industrial Commissioner Thompson
ORDERS:	1. The Appeal is dismissed. 2. The Decision of Simon Blackwood (Workers' Compensation Regulator) dated 6 August 2014 is confirmed. 3. The Appellant is to pay the Regulator's costs of and incidental to this Appeal to be agreed or failing agreement to be the subject of a further application to the Commission.
CATCHWORDS:	WORKERS' COMPENSATION ‑ APPEAL AGAINST DECISION ‑ Decision of Simon Blackwood (Workers' Compensation Regulator) ‑ Appellant bears onus of proof ‑ Standard of proof ‑ Balance of probabilities ‑ Witness evidence - Whether the Appellant had an entitlement in terms of s 144A and s 144B of the Act - Matters of fact - Appellant was a worker - Appellant sustained a personal injury arising out of, or in the course of her employment for which employment was a significant contributing factor - Incapacity - Appellant had an incapacity but not as a result of a work-related injury - Appellant does not have entitlement under s 144A and s 144B of the Act - Appeal dismissed - Decision of Simon Blackwood (Workers' Compensation Regulator) confirmed - Appellant to pay the Regulator's costs of and incidental to this Appeal to be agreed or failing agreement to be the subject of a further application to the Commission.
CASES:	Workers' Compensation and Rehabilitation Act 2003 s 11, s 32, s 144A, s 144B, s 550, Lee Colbran v Workers' Compensation Board of Queensland (1996) 152 QGIG 1180 Jones v Dunkel [1959] HCA 8 Carr v Baker [1936] NSWStRp 20 Thompson v Armstrong & Royce Pty Ltd (1950) 81 CLR 585
APPEARANCES:	Ms O. Perkiss of Counsel, instructed by McCowans Specialist Lawyers for the Appellant. Mr J. Wiltshire of Counsel, directly instructed by Simon Blackwood (Workers' Compensation Regulator), Respondent.

Decision (No. 2)

Georgina Embleton (Appellant) lodged a Notice of Appeal with the Industrial Registrar on 3 September 2014 pursuant to s 550 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) against a decision of Simon Blackwood (Workers' Compensation Regulator) (the Regulator) released on 6 August 2014.
The decision of the Regulator was to confirm the decision of the Insurer (Woolworths Limited) to terminate the entitlement to compensation of the Appellant in accordance with s 144A and s 144B of the Act.
Relevant Legislation
The Legislation pertinent to this Appeal is s 144A and s144B of the Act:
"144A When weekly payments of compensation stop
(1) The entitlement of a worker to weekly payments of compensation under part 9 stops when the first of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Embleton v Simon Blackwood (Workers' Compensation Regulator)

Details

AGLC: Embleton v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 96
Case: [2015] QIRC 96
Decision Date: 21 May 2015

CaseChat Overview and Summary

The matter before the court involved an appeal against the decision made by Simon Blackwood, the Workers' Compensation Regulator, in which the appellant, Embleton, sought to overturn the Regulator's decision. The appellant contended that she had an entitlement under sections 144A and 144B of the relevant Act, given that she was a worker who sustained a personal injury arising out of, or in the course of her employment, and the employment was a significant contributing factor to the injury.

The central legal issues in this case were whether the appellant had sustained an ongoing incapacity for work and if the incapacity was a result of the work-related injury. The court was required to determine whether the appellant's incapacity was due to the work injury, and if so, whether she had an entitlement under sections 144A and 144B of the Act. The court also had to assess the credibility of the medical evidence presented by both parties.

The court found that the appellant did suffer an incapacity for work beyond 29 June 2014, which was supported by the medical evidence provided by three medical practitioners. However, the court concluded that the incapacity was not as a result of a work-related injury. The court accepted the evidence of Dr Chye, the appellant's treating General Practitioner, who reviewed Dr Halliday's report and informed the Insurer on 19 June 2014 that there was no orthopaedic diagnosis of the work injury that was ongoing. The court held that the medical evidence in respect of the compensable muscle strain injury did not indicate an orthopaedic type injury contributing to the appellant's incapacity for work beyond 29 June 2014. Therefore, the appeal was dismissed, and the decision of Simon Blackwood was confirmed. The appellant was ordered to pay the Regulator's costs of and incidental to this Appeal.

Orders

Orders of the court

1. The Appeal is dismissed.

2. The Decision of Simon Blackwood (Workers' Compensation Regulator) dated 6 August 2014 is confirmed.

3. The Appellant is to pay the Regulator's costs of and incidental to this Appeal to be agreed or failing agreement to be the subject of a further application to the Commission.

Background

Background to the litigation

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Evidence

Evidence Before The Court

If the Appellant's argument is accepted the Commission must set aside the Regulator's decision and substitute a new decision effective from 29 June 2014.Evidence Dr Chye accepts that at 29 June 2014 the injury was ongoing and as such she was unable to return to her usual occupation. Similarly Dr McKenzie says that from September 2014 when he commenced treating her for the work-related injury, she remains unfit for work or study. On 19 June 2014 prior to the result of the ultrasound being known, Dr Chye in response to an approach by the Insurer to review Dr Halliday's report on whether he agreed there was no ongoing work injury, advised "No" indicating she needed physiotherapy and a return to work program. The ultrasound of the right shoulder identified a slight flattening of the borstal surface of the subscapularis tendon consistent with a small partial thickness tear. The Insurer in ceasing the entitlement to compensation preferred the orthopaedic opinion of Dr Halliday to Dr Chye. This decision was wrongly made as Dr Halliday made no comment on the Appellant's capacity to work whereas Dr Chye as the treating doctor issued medical certificates in two formats of an ongoing work-related injury and the need for further treatment. In relation to medical treatment, Dr Halliday identified the need for a rapid increase in physiotherapy yet five days later the Insurer decided to cease the claim for medical treatment which was without foundation.Work-related Injury Dr Halliday was critical of Dr Jayasinghe's diagnosis giving evidence that he thought he had made a presumptive diagnosis. The appropriate speciality for the purpose of diagnosing RSD was a Neurologist which was the position adopted by Dr McKenzie who had made the referral to a Neurologist rather than an Orthopaedic Surgeon. The criticism of Dr Jayasinghe by Dr Halliday cannot be maintained. The weight of medical evidence supports a finding that because of symptoms arising from the initial work injury, there is an ongoing incapacity for work beyond 29 June 2014.Does the Appellant require medical treatment beyond 29 June 2014? Dr Halliday, in the report to the Insurer (dated 18 June 2014), stated the Appellant required a "rapid increase in her physiotherapy program" and he agreed with Dr Jayasinghe's plan, refer her to a public hospital Pain Clinic. On 19 June 2014 Dr Chye recommended physiotherapy and a return to work plan. Dr McKenzie said the Appellant had and requires medical treatment for CRPS and in addition he arranged physiotherapy and physiology treatments on and after 5 September 2014. The Appellant has self-funded both Physiotherapy and Chiropractic treatments from early July 2014 until January 2015. The weight of medical evidence supports a finding that the Appellant has and does require medical treatment and hospitalisation for the management of her injury beyond 29 June 2014. The evidence of Dr McKenzie should not be preferred to that of an Orthopaedic Surgeon to the extent he relied on the ultrasound of 24 June 2014 that was subsequently discredited by the MRI. His evidence with regards to the triggering of CRPS by doing repetitive work after her shoulder had been injured on 4 May 2014 was not helpful as the Appellant had not continued with repetitive lifting work after 4 May 2014.

Decision

Reasons for decision

It was irrelevant to acknowledge Dr Jayasinghe's evidence on whether the Appellant ought to have had pain on 4 May 2014 as it was not an issue as the Appellant had not given evidence of not having pain on that date. The liability for the claim is as at 6 May 2014.ConclusionMatters for Determination The Appellant's claim of an ongoing medical incapacity beyond 29 June 2014 was supported by medical evidence provided in the proceedings by three medical practitioners being Dr Chye, Dr McKenzie and Dr Jayasinghe, all of whom diagnosed her with a medical condition rendering her unfit to undertake normal duties. Dr McKenzie's first contact with the Appellant regarding the injury was 5 September 2014 where she sought treatment for a right shoulder said to have been injured when lifting heavy cartons at work. He was aware at the time of the previous medical investigations performed and of her having seen an Orthopaedic Specialist. At the time he suggested she "may" have CRPS caused by the repetitive work undertaken by her at BWS. Dr McKenzie also provided certification that the Appellant was unfit for normal duties after the cessation date of the compensation and into 2015. Dr Jayasinghe examined the Appellant on the one occasion (on 31 October 2014) having been referred to him by Dr McKenzie who had indicated she "may" have CRPS. Dr Jayasinghe in his report of 31 October 2014 indicated the following:"On examination there was some distal weakness in the smaller muscles of the right hand. The deep tendon reflexes were symmetrical. There was no sensory loss.Nerve conduction studies were performed in the right upper limb and there was no evidence of a carpal tunnel syndrome." I am satisfied on the evidence of the three medical witnesses called by the Appellant that she suffered an incapacity for work beyond 29 June 2014 and at the time of hearing it was likely she continued to suffer that incapacity. Dr Chye the Appellant's treating General Practitioner on reviewing Dr Halliday's report informed the Insurer on 19 June 2014 that he agreed there was no orthopaedic diagnosis of the work injury that was ongoing. In my view the medical evidence in respect of the compensatable muscle strain injury is that there was no orthopaedic type injury contributing to the Appellant's incapacity for work beyond 29 June 2014.

Ratio Decidendi

Legal Principle Established

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