Godwin v Simon Blackwood (Workers' Compensation Regulator)
[2014] QIRC 206
•5 December 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Godwin v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 206 |
PARTIES: | Godwin, Denise Carol v Simon Blackwood (Workers' Compensation Regulator) |
CASE NO: | WC/2013/72 |
PROCEEDING: | Appeal against decision of Regulator |
DELIVERED ON: | 5 December 2014 |
HEARING DATES: | 24, 25, 26 February 2014 |
MEMBER: | Deputy President O'Connor |
ORDERS: | 1. The appeal is dismissed; 2. The decision of the respondent dated 11 February 2013 is affirmed; and 3. The appellant is to pay the respondent'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 OF REGULATOR - MEANING OF "INJURY" - Alleged aggravation of preexisting degenerative condition - Where the alleged aggravation was said to have arisen over a period of time - Where the appellant had previously undergone surgery to treat her lower back and leg symptomology - Whether sufficient evidence to support claim that alleged aggravation arose out of, or in the course of, employment Workers' Compensation and Rehabilitation Act 2003, s 32 |
| CASES: | Calder v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 101 |
| APPEARANCES: | Mr J. C. Dwyer, instructed by Sciaccas Lawyers, for the appellant. Mr S. P. Gray for the respondent, directly instructed. |
Decision
Denise Carol Godwin ("the appellant") was employed by the Uniting Church in Australia Property Trust (Q), which trades as the Wesley Hospital, from 4 March 2002. When she began her employment, the appellant's role was described as a "customer service attendant", and her duties involved delivering meals to patients by pushing trolleys and carrying meal trays. She performed in this role for a number of years without apparent difficulty, but at some point she developed a lower back problem with leg pain. When she presented to her general practitioner complaining of leg pain, he thought it might be coming from her back. He ordered an X-ray computed tomography which showed bulging discs in her spine, and put her on medication. As the appellant's pain got worse, her general practitioner gave her stronger medication and referred her to a specialist. Eventually, she asked for a second opinion, and in 2009 was referred to Dr Robert Labrom.
Dr Labrom told the appellant that she needed surgery to treat her symptomatology because discs in her spine were pushing on nerves. On 18 January 2010 she underwent a laminectomy, rhizolysis and fusion surgery. She was off work for seven months following the operation, during which time she continued to suffer pain and remained on opioid painkillers.
On her return to work at the hospital, the appellant's duties were altered on Dr Labrom's advice. She worked in the day surgery, where smaller trays were used for meals than elsewhere in the hospital, food was dispensed to fewer patients, and no trolleys were required. Nevertheless, the appellant's back problems worsened and she returned to Dr Labrom who said that she needed further surgery as her L4 disc had protruded. She underwent that further surgery in May 2011 and has not been back to work since. She says that, while the second surgery was somewhat helpful, her back problems persist.
On 29 March 2012, the appellant lodged a notice of claim for damages with WorkCover Queensland. In her claim, the appellant alleged that she had sustained an injury to her lower back, the nature of which was described as "strain". The injury was said to have occurred over a period of time from July 2010 until May 2011, although symptoms were said to have commenced from the beginning of that period in July 2010. In describing the details of the events occurring during that period of time which were said to have resulted in the alleged strain to her lower back, the appellant emphasised certain activities she was required to perform at work, particularly pushing and pulling trolleys.
WorkCover rejected the appellant's claim by a decision letter dated 14 September 2012, on the basis that she had not sustained an "injury" within the meaning of that term in s 32 of the Workers' Compensation and Rehabilitation Act 2003 ("the Act"). The Worker's Compensation Regulator ("the respondent") confirmed WorkCover's decision to reject her claim by a review decision dated 11 February 2013. It is against that decision that the appellant now appeals to this Commission.
The appeal before the Commission
The appellant claims that the issues associated with her lumbar spine amount to an "injury" within the meaning of that term in s 32 of the Act. She relies on sub-s(3)(b) to bring her alleged "personal injury" - namely, degeneration of her spine at L4/5 - within the Act's definition of "injury", arguing that her work duties at the Wesley Hospital during the period from July 2010 to May 2011 aggravated an underlying degenerative disease of her lumbar spine.
For the purpose of determining whether her alleged injury arose out of, or in the course of, employment and whether employment was a significant contributing factor to the injury, the relevant employment is her employment with the Uniting Church in Australia Property Trust (Q), for whom she has worked at the Wesley Hospital since 4 March 2002.
The Regulator accepts that the appellant was a "worker" for the purposes of the Act but otherwise opposes her claim.
The evidence as to the appellant's duties
The appellant's evidence is that, between January 2010 and July 2010, she was absent from work as a consequence of her surgery. She returned to full-time employment in the day surgery unit at the Wesley Hospital in July 2010. The day surgery unit was regarded as light duties. On her own evidence, her duties in the day surgery unit included a period of loading, pushing and unloading a trolley. She further particularised her duties as requiring her load a two-tier trolley with stores from the stores department, push the trolley from the stores department to the day surgery unit across a carpeted floor,[1] which would take about five minutes,[2] and then unload the trolley.[3] This, she says, caused her to experience pain in her back and left leg.[4]
[1] T1-15.
[2] T1-12.
[3] T1-16.
[4] T1-15.
The appellant said her duties also included assisting in other hospital wards, in particular W3, 1E and 6E. When assisting in those wards, she says she was required to use a three-tier food services trolley which she estimated weighed 50kg.[5] This responsibility required her to distribute hot meals for lunch and a morning and afternoon tea service. She was required to use the food service trolley to collect for the meal service and the trays for morning and afternoon tea. Other duties associated with her work in the day surgery unit included loading the dishwasher and collecting food trays.[6]
[5] T1-18.
[6] T1-20.
The appellant submits that the Commission should find, on the evidence before it, that she was required to push trolleys on a daily basis, that they were difficult to push across the carpeted surfaces she was required to traverse, and that these work activities involving the trolleys caused her to experience pain in her back and left leg.
I do not accept the submission that the appellant was required to push heavy trolleys on a daily basis. I am of the view that the appellant who gave, at times, inconsistent evidence has overstated her duties in the day surgery unit. Even on her own evidence, the pushing and pulling of heavy trolleys was not regular.
In cross-examination, the appellant accepted that in the period from July 2010 to November 2010 she rarely had to push a trolley.[7] Further, in the letter of Dr Labrom to Dr Kwok dated 29 November 2010, he recounted the appellant's contemporaneous statement to the effect that: "She rarely pushes heavy trolleys these days in the section that she works here at the Wesley Hospital."[8]
[7] T1-35–6.
[8] Exhibit 17.
I accept the evidence of Mr Allan Wilson, the workplace health and safety manager at the Wesley Hospital, that following her return to work in July 2010, the appellant worked under a specially designed work programme. That programme was designed to ensure that she was engaged only in a suitable duties plan to "ring-fence" her in the day surgery unit so that she would not have to push large food and beverage trolleys as she otherwise would elsewhere in the hospital.[9]
[9] T3-38–49.
The medical evidence
In turning to the medical evidence before the Commission, it is worth noting that whilst an expert medical witness may give his or her opinion on the nature, cause or probable cause of an injury, it is ultimately a question of fact for the Commission to weigh and determine the probabilities. In so doing the arbiter of fact may be assisted by the medical evidence to determine the matter.[10]
[10] Ramsey v Watson (1961) 108 CLR 642, 645.
Dr Edward Kwok was the appellant's treating general medical practitioner. His clinical notes record that there was a continuation of the appellant's symptoms post-surgery and that there had been no improvement.[11]
[11] Exhibit 12.
Dr Kwok said in his evidence that the appellant saw him on 17 November 2010 and described on-going pain in her left leg.[12] In cross-examination he said that he could not reconcile the entry he made on 9 May 2011, which records the appellant describing a "flare up" of her back symptoms in November 2010, with the entry he made on 17 November 2010, which records that the appellant still had pain in her left leg, and that there was "nil change post surgery [sic]".[13] Importantly, Dr Kwok noted that the appellant still required oxycodone, which had been prescribed for her pain since Dr Labrom had performed surgery on her in January 2010.
[12] T1-48; Exhibit 12, P124.
[13] T1-56–7; Exhibit 12, P124, P126–7.
Dr Gillett said that, if it was accepted that the pushing and pulling of trolleys occurred, he would classify that as a "minor contribution", because insignificant would mean that it does not really contribute at all.[14] He was on the opinion that the appellant had a significant back injury which was related to "constitutional things".[15]
[14] T1-65; Exhibit 14, p 2.
[15] T1-71.
Dr Gillett attributed the appellant's ongoing pain to a combination of factors: "the spinal fusion, the pre-existent degeneration and extrinsic factors, which would seem to be the trolleys."[16]
[16] T1-66.
Dr Pincus observed that the fusion undertaken in January 2010 at the first level did not relieve all her symptoms. He noted that the pain was on-going and then the progressive changes revealed by the magnetic resonance imaging scan appeared quite quickly. The rapid changes were noteworthy considering that, for a significant period of time between the appellant's first and second operation, she was away from her employment at the hospital, yet the degenerative changes as depicted in the MRI progressed quickly.[17]
[17] T3-21.
It is important to note there was a period of time following her first surgery where she was absent from work. She was also off work because of her carpal tunnel surgery. This was covered in the evidence of Dr Pincus:
"There was also a period of about three to four weeks in December 2010, January 2011. So, does that have some relevance in terms of your view about the deterioration?---But, I mean, I think - so the surgery was actually done in January 2010, wasn't it?
Yes?---So, I mean, it's from January to July, there was six months then when she didn't - six or seven months then that she didn't work - - -
That's correct?--- - - - either and yet - and there was times - periods of time off of the work so, I mean, most of the time, in fact, between the operations she wasn't working is my understanding.
Yes?---And despite that, the change has progressed."[18]
[18] T3-21.
Following her carpal tunnel surgery, the appellant was not returned to normal duties until February 2011. Dr Pincus was asked in cross-examination:
"And all things considered, given that you indicated there was a short period of time between these types of surgeries, and that it's a rapid advance, you'd have to say, wouldn't you, that the work which was producing symptoms would have to be one of the - one of the key suspects, if you like, in terms of the cause of the rapid advance of that pathology?---Well, I mean, I can't say that it was - it was the - it was the major cause. No, I can't say that.
Would you say it was a significant cause?---Look, all I can say, and I'll say it again, I'm not trying to be difficult, is that I've no question that she developed - that she had pain at work. But I'm not - I - she had a very degenerate disk, she had ongoing pain; I wonder whether or not that - that - that L4/5 was really a cause of a lot of her pain prior to her even having her first fusion. That's really my impression."[19]
[19] T3-24.
The appellant referred to the decision of Hall P in WorkCover v BHP (Qld) Workers' Compensation Unit (2002) 170 QGIG 142 where his Honour said:
"It is settled that the activation of pain is to be equated with the aggravation of an underlying disease; i.e., it is sufficient that an asymptomatic disease becomes painful, even if there is no change to the underlying pathology; see Pleming v Workers' Compensation Board of Queensland (1996) 152 QGIG 1181 at 1182 per de Jersey, President."
It cannot be said that the appellant was asymptomatic. Her pain has been continuous from the time of her surgery in January 2010 through to May 2011 and she has been medicated throughout. In cross-examination, Dr Labrom confirmed that the appellant continued to require oxycodone to manage her symptoms throughout 2010 and 2011, and that when he saw her on 16 April 2010, she was still using 20mg of oxycodone twice a day, and 300mg of gabapentin three times a day.[20]
[20] T3-9.
Indeed, as noted in paragraph [20] above, her condition appears to have deteriorated to such an extent and at such a rate that further surgical intervention was required.
In the supplementary report of Dr Gillett dated 27 September 2012 he opined:
"In relation to Dr Labrom's notes I do note in October 2010 she was requiring Oxycontin and further investigation of the spine was undertaken. That is, one would say that she has probably not got complete relief of symptomatology post her surgery at that stage as she requires Oxycontin."[21]
[21] Exhibit 14.
The appellant's case is that she suffered an aggravation of the degenerative disease at L4/5 of her spine resulting from her work duties between July 2010 and May 2011. I do not accept that submission. In my view, the medical evidence, in particular that of Dr Pincus, suggests that there is no correlation between the appellant's degenerative spinal condition and her employment. Rather, he is of the opinion that she required a lumbar fusion of the L4/5 and L5/S1 discs because she was suffering from a degenerative disease of her back. Dr Gillett expressed a similar view that the fusion at L5/1 level would have led to, or would have accelerated the degenerative process at the L4/5 disc.
In the second report of Dr Labrom dated 25 June 2012, he described the appellant's pre-existing condition as a "precocious degenerative lumbar spondylosis".[22] He was of the opinion that there was a combination of a degenerative lumbar disc disease which he thought was precocious for her age, coupled with the likelihood of exacerbation and the probability of annula tearing and further disk prolapse at both the L5/S1 and eventually the L4/5 level.[23]
[22] Exhibit 16, Report dated 25 June 2012, p 2.
[23] Ibid.
In relation to the contribution between the pushing and pulling of trolleys as well as lifting of trays in certain awkward positions and the likelihood of annula tear, disc prolapse and surgical intervention Dr Labrom opined:
"However, based upon the information given to me it would be not unreasonable to suggest that on the balance of probabilities, that the pushing and pulling of trolleys as well as lifting of trays in certain awkward positions in hospital rooms, and preparation areas in the hospital may have added to the likelihood of an annula tear, disc prolapse and the subsequent need for surgical intervention. This remains somewhat ill defined though on the balance of probabilities and based upon the numerous accounts reported to me in my office from this patient with regards this type of activity, it would be reasonable to believe that there would be somewhat of a shared responsibility and explanation for her pathology and subsequent surgeries in relationship to this workplace activity over time, as well as her well established and understood pre existing multilevel lumbar spondylosis. The proportion of involvement however would be difficult to define and I feel underconfident to make a further suggestion on this."[24]
[24] Ibid.
Findings and conclusion
I accept that the appellant had a degenerative disease at L4/5 which was described by Dr Labrom, her treating orthopedic surgeon, as "precocious degenerative lumbar spondylosis".
However, notwithstanding the above finding, the appellant must demonstrate for the purposes of s 32(3)(b) that her alleged aggravation of the pre-existing degenerative lumbar spondylosis arose out of, or in the course of, her employment at the Wesley Hospital and that her employment there was a significant contributing factor to that injury.
In Poulsen v Q-COMP, Hall P wrote:
"If s. 32(1) of the Act did no more than recite the traditional formula "arising out of or in the course of the employment", the Appellant would have had a case. However, the Legislature has added a further requirement, viz., that the employment be a significant contributing factor to the injury. An applicant must now show a further element of causation. Further, whatever the precise content of "significant", it is apparent from the phrase "a significant contributing factor" that mere satisfaction that some element of contribution (minor was the adjective used by the Acting Industrial Magistrate) occurred is insufficient. Here, on the evidence, the Appellant established the type of case made out in Pleming v Workers' Compensation Board of Queensland. The Appellant failed to demonstrate that the contribution of the employment was of any significance whatever compared to the dominant contributing factor, viz., the Appellant's underlying condition."[25]
[25] Poulsen v Q-COMP (C/2011/29) - Decision < [10].
In JBS Australia Pty Ltd v Q-Comp, Hall P wrote:
"I should say to begin with that, I accept that the employment must significantly contribute to the occurrence of the injury. It is insufficient to establish that the employment was the setting in which the aggravation occurred or the background to its occurrence, compare Croning v Workers' Compensation Board of Queensland, at 101 per de Jersey P. It must be shown to be more probable than not that there is a significant causal relationship between the accident and the workers' post-accident condition."[26]
[26] JBS Australia Pty Ltd v Q-COMP (C/2012/35) - Decision < [3].
Some of the expert medical evidence has delved into the question of whether or not the appellant's work duties have been a significant contributing factor to the injury which is alleged to have been sustained by the appellant. As was noted in Davidson v Blackwood, "an expert witness must not seek to substitute himself or herself for the tribunal of fact, or for the Court. It is not for the expert witnesses called on behalf of either party to say whether or not the 2010 fall suffered during the appellant's employment, was a 'substantial contributing factor' to the injuries disclosed in the wake of the 2011 incident."[27] The role of expert witnesses is "to illuminate, to the extent of their knowledge and expertise, the cause (or causes) of the aggravation of the appellant's back condition."[28]
[27] [2014] ICQ 008 [17].
[28] Ibid.
In light of the evidence of Dr Pincus and Dr Gillett, I am of the view that the appellant's employment was not a significant contributing factor to her injury. Both Dr Pincus and Dr Gillett were of the opinion that the appellant's underlying pathology was the cause of the symptoms exhibited. Even Dr Labrom was equivocal as to the contribution of her work duties to her injury.[29] As Keane JA observed in Newberry v Suncorp Metway Insurance Ltd, "The fact that an injury has been suffered arising out of employment, or in course of employment, is not sufficient to establish that employment has been a 'significant contributing factor to the injury'".[30] Her employment at the Wesley Hospital needs to be the real and effective cause of her injury and not merely the setting in which it occurred.[31]
[29] See above n 24 and accompanying text.
[30] [2006] 1 Qd R 519, 532–3 ("Newberry").
[31] Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 100, 101.
"The requirement of s 32 of the Act that the employment significantly contribute to the injury is apt to require that the exigencies of the employment must contribute in some significant way to the occurrence of the injury".[32] The question before the Commission is a statutory one, namely, to determine whether the appellant's alleged injury arose out of, or in the course of, employment and whether employment was a significant contributing factor to the injury.[33] The question as to whether or not employment was a significant contributing factor is essentially a factual enquiry, the question being one of degree, requiring evaluation.
[32] Newberry [2006] 1 Qd R 519, 529 (Keane JA).
[33] St Mary's School v Askwith [2011] VSCA 90 [15]–[16] (Ashley JA).
For the purposes of s 32(1), where the Act speaks of employment being a significant contributing factor to the injury, significant is used in the sense of "important" or "of consequence".[34]
[34] Q-COMP v Green (2008) 189 QGIG 747.
The use of "a" significant contributing factor indicates that there can be more than one significant factor.[35] As Dr Gillett noted, the appellant's ongoing pain could be attributed to a combination of factors, being the spinal fusion, the pre-existing degeneration and extrinsic factors.[36]
.
[35] Calder v Simon Blackwood (Workers' Compensation Regulator) [2014] 101.
[36] T1-66.
I accept that the evidence before the Commission was sufficient to establish that there was a possibility that the appellant's employment was a contributing factor to her injury. However, the evidence was not, in my view, sufficient to establish that her employment was a significant contributing factor.
I find that the appellant has failed to discharge the positive onus of establishing, on the balance of probabilities, that she has an injury within the meaning of s 32 of the Act.
Orders
I make the following orders:
1. The appeal is dismissed;
2. The decision of the respondent dated 11 February 2013 is affirmed; and
3.The appellant is to pay the respondent'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.
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