Grant v Simon Blackwood (Workers' Compensation Regulator)
[2014] QIRC 118
•31 July 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Grant v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 118 |
PARTIES: | Grant, Jennifer v Simon Blackwood (Workers' Compensation Regulator) |
CASE NO: | WC/2014/5 |
PROCEEDING: | Appeal against a decision of Simon Blackwood (Workers' Compensation Regulator) |
DELIVERED ON: | 31 July 2014 |
HEARING DATES: | 1 and 2 May and 11 June 2014 |
MEMBER: | Industrial Commissioner Fisher |
ORDERS: | 1. The Appellant is ordered to submit to a medical examination by Dr Robinson. 2. The appeal is adjourned until further Order. |
| CATCHWORDS: | Where the worker made an application for compensation encompassing four injuries - where the entitlement to weekly benefits and medical expenses ceased - where the incapacity because of the work related injury stops - where one injury had resolved - where evidence of abnormal illness behaviour was given - where medical evidence does not support the presence of left ankle or thoracic spine injuries - where the worker sought to admit new medical evidence - where the worker underwent further surgery between hearing dates - whether evidence about the results of the further surgery should be admitted - worker ordered to submit to medical examination for right wrist injury |
| CASES: | Workers' Compensation and Rehabilitation Act 2003, s 144A, s 144B, s 556(1)(b) |
| APPEARANCES: | Ms J. Grant, the Appellant, in person. |
Decision
On 29 September 2012, Jennifer Grant fell at work during a planned power outage while she was employed as an Occupational Health Nurse on Groote Island in the Northern Territory. She sustained multiple injuries. After having an application for workers' compensation erroneously accepted in the Northern Territory, Ms Grant ultimately had an application for workers' compensation accepted by WorkCover Queensland (WorkCover) for "soft tissue injuries to right wrist, right knee, left ankle and thoracic back pain." Ms Grant was paid weekly benefits as well as medical treatment expenses.
WorkCover ceased Ms Grant's benefits on 9 September 2013. When Ms Grant sought a review of the decision to the Workers' Compensation Regulator (the Regulator), the decision of WorkCover was confirmed. Ms Grant now appeals that decision to the Queensland Industrial Relations Commission (the Commission).
Relevant Legislation
The relevant sections of the Workers' Compensation and Rehabilitation Act 2003 (the Act) are set out below:
"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 following happens -
(a)the incapacity because of the work related injury stops;
(b)the worker has received weekly payments for the incapacity for 5 years;
(c)compensation under this part reaches the maximum amount under part 6.
(2)If subsection (1)(b) or (c) applies, the worker's entitlement to further compensation for the injury stops.
(3)This section does not limit another provision of this Act that stops weekly payments.
144B When payment of medical treatment, hospitalisation and expenses stop
The entitlement of a worker to the payment of medical treatment, hospitalisation and expenses under chapter 4 for an injury stops when -
(a)the entitlement of the worker to weekly payments of compensation under part 9 stops; and
(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."
Part 9 of the Act deals with weekly payment of compensation and applies to a worker who is either totally or partially incapacitated because of the injury.
Consideration of the injuries
Ms Grant made one application for workers' compensation encompassing four injuries - the right wrist, the right knee, the left ankle and thoracic back pain. At the time of the hearing of the appeal, Ms Grant said that the injury to her right knee had resolved. Accordingly, the right knee injury is not considered in this decision and only the remaining three injuries are considered.
Before addressing each injury, reference needs to be made to the evidence of various medical specialists who said that Ms Grant was exhibiting some abnormal behaviour in relation to her injuries. They said she reported new injuries and symptoms apparently related to her fall on 29 September 2012 although they arose some months after the accident. Some symptoms were continuing as at the hearing of this appeal.
The Commission does not have any direct specialist medical evidence in relation to whether Ms Grant has a psychological/psychiatric condition. In the circumstances, the Commission does not make any findings about whether Ms Grant exhibited abnormal illness behaviour save to note that all of the medical specialists who gave evidence in the proceedings identified some abnormal behaviour by her either in relation to her reports of her injuries or her pain.
Left ankle
The left ankle injury occurred when it caught on a chair causing Ms Grant to fall. Although Ms Grant acknowledged that she sustained a soft tissue injury and an MRI did not show any tears or abnormalities, she said her left ankle "clicks" and she still gets pain and swelling.
Ms Grant did not call any specialist medical evidence in relation to her left ankle injury, however, a physiotherapist, Rebecca Benton, was called as a witness by her. Ms Grant had been referred to Ms Benton by Dr Dodd, Ms Grant's treating Orthopaedic Surgeon. Although Ms Benton gave evidence about various problems Ms Grant had with her body, including plantar fasciitis, her evidence did not specifically address the left ankle injury. The most Ms Benton said about the left ankle injury was that because of problems in Ms Grant's hip and pelvis, she was "referring to (her) knee and possibly (her) ankle."
The medical evidence called by the Regulator included evidence given by Dr Dodd. Ms Grant was referred to him by her General Practitioner, Dr Tom Levy. Dr Dodd described her injury as a soft tissue injury to the left ankle and as at the time of his report, 1 August 2013, said it was in the recovery phase. It was stable and stationary and did not need any further medical treatment. In his oral evidence Dr Dodd said that Ms Grant had a few symptoms at the time of that report but it was his impression that the left ankle was going to get better fairly quickly. He considered that it did not require any further treatment.
Ms Grant was referred to Dr Watson, Consultant Orthopaedic Surgeon, for independent assessment by WorkCover. That examination occurred on 6 August 2013. His report commented that she has "symptoms of soreness, limitation and mobility and difficulty going up and down steps" and continues to take medication. On examination, he found full flexion. He noted that the MRI conducted on 3 July 2012 did not confirm any evidence of ligament or meniscal tear.
Another MRI was taken on 26 March 2013. Dr Watson said this MRI suggested mild plantar vasculitis but the ligaments were all intact. In the absence of ligament pathology, he opined that Ms Grant did not warrant any further treatment.
The medical evidence before the Commission about Ms Grant's injury to the left ankle shows the absence of pathology. It was a soft tissue injury and should resolve without treatment. The opinion of a specialist doctor is to be preferred to that of a therapist because of their advanced level of knowledge, skill and training. In the circumstances, the medical evidence supports the conclusion that the incapacity because of the work related injury is not continuing and that medical treatment is not likely to improve the condition.
Thoracic spine
The thoracic spine injury occurred when Ms Grant fell backwards onto a concrete step after she stood up from the initial fall.
Ms Grant was initially told that she had a fracture of the spine however Dr Dodd, in his report of 1 August 2013 stated there was no radiological evidence of this.
Ms Grant was examined by Graham Keay, Physiotherapist, for her pre-employment assessment on 13 September 2012 and on 11 October 2012, after she had fallen. In a report dated 16 October 2012, Mr Keay recorded that there was no comparison between Ms Grant's movement and function on the second assessment. On that date he recorded Ms Grant as experiencing acute pain in the mid thoracic spine and right sacro-iliac area. He considered the minimum time for the pain and muscle spasms to settle was four weeks, although the injuries would take longer to resolve.
Ms Grant continues to experience muscle guarding and spasming as well as constant burning pain and referred pain around the chest wall. She said Dr Levy prescribed strong analgesics and she was referred to the Wesley Pain Management Clinic in February 2013 for a three week program to try to improve the movement in her thoracic region.
An X-ray showed a disc protrusion at L7, however Dr Dodd considered this was unrelated to the accident. He said that she had a soft tissue injury which was quite minor and in his opinion it should have resolved quite quickly. He considered that she had an aggravation of some degenerative changes in her spine of a relatively minor nature and that aggravation would have ceased a long time ago. Any ongoing symptoms were due to thoracic disc degeneration.
On 1 August 2013 Dr Dodd informed WorkCover that although Ms Grant was receiving physiotherapy treatment for her thoracic spine, in his opinion, "she had received the full gamut of expected treatment for the pathology here which is quite minor." In his oral evidence, Dr Dodd said that if Ms Grant continued to receive physiotherapy it would only reinforce to Ms Grant that she had something wrong with her.
Evidence from Ms Benton was that Ms Grant had received 118 sessions of physiotherapy. Those sessions were not just for the thoracic spine injury but for the multiple injuries about which Ms Grant had complained, including some which she said had developed as a consequence of the fall. Ms Benton disagreed with Dr Dodd about the need for further treatment. Having seen and felt what was happening with Ms Grant's body and having seen her improvement after the treatment at the Wesley Pain Clinic, Ms Benton considered that a continuation of the type of treatment she received at that Clinic (exercise physiotherapy) would be beneficial.
Dr Dodd rejected Ms Benton's views both as to the referred injuries and the need for further treatment. He said it "does not ring true" that muscle spasms related to the injury could be felt so far out from the injury. In relation to the issue of whether further treatment was required, he considered that number of physiotherapy treatments to be excessive and that at some point the treatment needs to be halted.
While cross-examining Dr Dodd, Ms Grant raised the results of a CT scan taken on 25 February 2014 for the radiating chest wall pain. The scan showed a superior endplate compression fracture at T6 and a left superior articular process fracture at T8 and T10. Ms Grant asked Dr Dodd whether these fractures would account for the mid-thoracic chest wall pain and referred pain around the chest wall she had been experiencing since the accident. He replied that the results could not be tied in with the accident because of the MRI scan reports but rather were a progression of her thoracic disc degeneration from which pain can result. Dr Dodd agreed with the opinion of Dr Watson and Dr Atkinson, Neurologist, that the pain she was experiencing was not because of the fall but because of the thoracic disc degeneration. (Note: No evidence was given by Dr Atkinson, either written or oral.)
Dr Dodd conceded that the fall would have aggravated the underlying degeneration but that would have ceased a long time ago. Present symptoms would be due to the thoracic disc degeneration and not the injury sustained in the fall. Any progression of the symptoms was due to Ms Grant's makeup and not because of the injury.
In his report dated 21 August 2013, Dr Watson noted that Ms Grant had ongoing subjective symptoms at thorocolumbar spine at T7/8 but that was because she had a degenerative disc. He was of the opinion that this preceded the accident and was not related to it.
Ms Grant did not call any specialist orthopaedic evidence about her thoracic spine and in particular, the CT scans about which she cross-examined Dr Dodd. Mere statements of scan results in the absence of specialist medical evidence cannot be given weight in determining the existence and cause of an injury.
In her closing submissions, Ms Grant mentioned that she had seen a pain specialist on 28 May 2014 in relation to her thoracic injuries and had received a report from that specialist on 10 June 2014. Information about that consultation was not admitted because it was too late to introduce new "evidence" which had not been previously foreshadowed or about which the Regulator had no opportunity to obtain instructions.
In my view the opinion from the pain specialist is more likely to be directed towards the management of pain, and the available medical evidence is that any symptoms being experienced by Ms Grant are unrelated to the fall. This conclusion was reached because there is no medical evidence of any ongoing orthopaedic injury occasioned by the fall. For these reasons, I consider the opinion of the pain specialist would not assist in determining whether further medical treatment is likely to improve the injury.
In any event that does not bear on the decision I am required to make, which is whether the Regulator wrongly made[1] the decision to confirm WorkCover's decision to cease weekly payments of compensation and the payment of medical treatment expenses. The proceedings before the Commission are a hearing de novo and Ms Grant bears the onus of proof. As mentioned, the medical evidence before the Commission does not establish the existence of any injury.
[1] State of Qld (Queensland Health) v Q-COMP and Beverley Coyne (2003) 172 QGIG 1447 at 1448.
Right Wrist
The right wrist injury is more complicated. The injury to the right wrist was sustained when Ms Grant put out her hand to break the fall.
She was referred to Dr Mark Robinson, Hand and Upper Limb Surgeon, by Dr Peter Dodd. In his report to WorkCover dated 25 March 2013, Dr Robinson recorded diagnoses of a tear of the left triangular fibro cartilage complex (TFCC) wrist, right extensor carpi ulnaris (ECU) tendonitis and mild right ulnar neuropathy. He initially referred Ms Grant for a steroid injection to her wrist which reduced her discomfort in the elbow and her wrist symptoms.
On 17 May 2013, Dr Robinson performed an ulnar nerve release at the right elbow, released the ECU tendon at the wrist and partially repaired the ECU tendon sheath at the right wrist. Despite undergoing about two months of hand therapy after the surgery, the right wrist was worse than it was before the surgery. This was acknowledged by Dr Robinson. He was of the opinion that further surgery in his hands was unlikely to improve Ms Grant's wrist.
Ms Grant did not accept the outcome of the surgery on her right wrist. Her General Practitioner, Dr Levy, referred her to Dr Michael Maguire, an Upper Limb Surgeon. In his report of 17 September 2013, he recorded ongoing pain on the ulnar side of Ms Grant's wrist. He initially gave her image guided corticosteroid injection, however, when that failed to remedy the problem, he considered a right wrist arthroscopy was required to repair the TFCC. In particular the surgery required was a wrist arthroscopy, TFCC debridement, wafer procedure and ECU sheath synovectomy and stabilisation plus an endoscopic cubital tunnel release.
In his oral evidence to the Commission, Dr Maguire said that the surgery performed by Dr Robinson was not the most appropriate as it had not addressed Ms Grant's underlying pathology of the TFCC tear and the ECU tendon. He considered that the surgery he was proposing should have been offered and covered by WorkCover. He estimated a 75 per cent chance of Ms Grant making a full recovery, although revision surgery of two or three procedures may also be required to settle the pain completely.
Under cross-examination, Dr Maguire said that in his experience the repair of the TFCC of a person of Ms Grant's age does poorly but a debridement would do very well, particularly in association with an ulnar shortening procedure. Thus he was proposing to undertake the debridement with either an ulnar shortening procedure or wafer procedure to optimise the clearance on the ulnar side of the wrist to prevent ongoing pain from ulnar carpal impaction.
Dr Maguire said he would have expected some improvement of Ms Grant's symptoms as a result of the surgery performed by Dr Robinson in May 2013 but this did not necessarily occur in all cases. He did not accept there was a strong prospect of Ms Grant not having a good response to the second surgery. He acknowledged, however, that Ms Grant had been exhibiting some abnormal pain behaviour.
Dr Robinson was not confident the proposed surgery would correct the problems. In his report of 4 September 2013, he stated that a repeat MRI showed persisting structural abnormalities around the ulnar side of her wrist which he said accounted for her ongoing symptoms and added there was no surgical treatment which would be of benefit. Dr Robinson decided not to offer surgery to the TFCC. He believes that that surgery should be reserved for when there is instability of the distal radio ulnar joint and as Ms Grant did not exhibit significant instability, he did not consider surgery would be beneficial. He considers that surgery to the TFCC has a lower success rate than the surgery he performed.
Dr Robinson's opinion was shared by Drs Dodd and Watson. Although Dr Dodd conceded that he was not a wrist surgeon, he said tests of Ms Grant's wrist performed by Dr Maguire returned negative results which indicated instability in the wrist. He also said that the tests performed were not reliable for TFCC. As a result, the prospects of success for further surgery were about 50 per cent. This contrasted with most operations which were generally performed where the prospects of success were in the range of 85-90 per cent.
Dr Watson did not believe that Ms Grant should undergo further surgery. He believed that Ms Grant's presentation was not consistent with organic pathology but was consistent with abnormal illness behaviour. He did not consider that the surgery proposed by Dr Maguire would be successful.
Dr Maguire did not place any weight on the opinions of Drs Dodd and Watson as he considered they were acting outside their areas of expertise and beyond their clinical knowledge.
Dr Maguire performed surgery to Ms Grant's right wrist on 5 May 2014. As this occurred between the hearing dates of this appeal, the Commission enquired of the parties about whether evidence should be given about the results of the surgery. After hearing from both parties, the Commission decided not to accept evidence primarily because of the limited weight that could be given to the reports if they were admitted and the possible prejudice to the Regulator in those circumstances
At the time of making its decision on review, the Regulator had the conflicting opinions on whether further surgery should be undertaken. It decided not to accept Dr Maguire's opinion and preferred that of Dr Watson whose opinion was also supported by Dr Robinson. That same evidence is available to the Commission. It is clear that Dr Robinson and Dr Maguire have different approaches to whether further surgery to Ms Grant's right wrist is appropriate and/or necessary. Dr Robinson holds there is an even chance of the surgery being successful but there is also an even chance that the wrist will be made worse. It was not a risk he was prepared to take. That view was supported by Drs Dodd and Watson. In contrast, Dr Maguire has great faith in his own ability and confidence the procedure would be successful even if several attempts were required.
At the time the Regulator made its decision, the weight of medical evidence was against the surgery. However, the surgery has since been performed and in my view, the Commission would be remiss to simply ignore its occurrence. The surgery was performed in the period between hearing dates and consideration of its outcome at this stage of proceedings can be distinguished from other cases where the surgery was performed after an appeal had been finalised.
The outcome of the surgery has the potential to have a direct impact on the outcome of the appeal given the issues the Commission has to determine in a de novo hearing. For example, if the surgery has not resulted in an improvement to the right wrist, then the appeal will fail. However, where there has been an improvement, the sections of the Act involved in this appeal can be more usefully considered. In the circumstances, I have decided to act under s 556 of the Act and order Ms Grant to submit to a medical examination, provided that her wrist has in fact improved from surgery performed by Dr Maguire.
Section 556(1)(b) permits the Commission to order a worker to submit to such an examination where the nature or extent of the injury or incapacity arising from the injury is relevant to the appeal. In my view, this is such a case and is a course that ought to be taken in the interests of justice irrespective of the delay that will caused in finally determining the appeal.
I have decided that Dr Robinson should conduct the examination for the following reasons. Dr Robinson performed the previous, unsuccessful surgery, gave an honest account of its outcome and was considerate of Ms Grant's plight. He has the relevant knowledge of the state of Ms Grant's wrist before the surgery was performed by him and after that surgery. Dr Robinson has expert knowledge in the field and I consider is best placed to provide an opinion on the state of Ms Grant's injury, her prognosis and the extent and nature of any incapacity being experienced by her.
Accordingly the Commission issues the following directions:
1.(a) By 4.00 pm on 3 November 2014 Ms Grant is to file in the Queensland Industrial Registry (the Registry) and serve on the Regulator an Affidavit attesting to the current state of her right wrist. Further, such affidavit is to address whether any revision surgery(s) has occurred and the date(s) thereof.
(b)Ms Grant is to attach to her Affidavit a report from Dr Maguire dated no earlier than 20 October 2014. Dr Maguire's medical report is to address:
(i)the surgery(s) performed and the date(s) thereof;
(ii)the results of the surgery(s);
(iii)specifically, whether the surgery performed on 5 May 2014 improved the wrist or not;
(iv)whether the injury is likely to improve with further medical or surgical treatment. If yes, what further medical or surgical treatment is required and over what time frame, including the anticipated schedule for any revision surgeries;
(v)Ms Grant's capacity for work at the time following the surgery on 5 May 2014 and currently;
(vi)whether the incapacity because of the right wrist injury has stopped and if so, when it stopped. If not, when does he consider the incapacity will stop; and
(vii)the prognosis for the right wrist.
(c)The medical report is to attach the operation report(s) and any correspondence/reports from Dr Maguire to Dr Levy about the surgery(s).
2.(a) Where Dr Maguire opines that surgery has improved her right wrist, Ms Grant is ordered to submit to a medical examination to be undertaken by Dr Mark Robinson, Hand and Upper Limb, Surgeon.
(b)Ms Grant is to provide Dr Robinson with a copy of Dr Maguire's report and its attachments and all radiological investigations and reports made at any time on or after the surgery on 5 May 2014.
3. The Regulator is to organise the appointment with Dr Robinson, which is to occur after the receipt of Ms Grant's Affidavit but if possible no later than 21 November 2014. The Regulator is to provide reasonable written notice to Ms Grant of the time and date of the appointment.
4. The Regulator is to request Dr Robinson prepare a report of his examination and that, as a minimum, he provide an opinion on:
(a)whether Ms Grant's right wrist has improved as a result of the surgery performed by Dr Maguire on 5 May 2014 or by any revision surgeries performed by him;
(b)whether the injury is likely to improve with further medical or surgical treatment. If yes, what further medical or surgical treatment is required and over what time frame;
(c)whether the incapacity because of the right wrist injury has stopped and if so, when it stopped. If not, when does he consider the incapacity will stop;
(d)Ms Grant's capacity for work at the time following the surgery on 5 May 2014 and currently; and
(e)A prognosis of Ms Grant's right wrist.
5. The Regulator is to pay the costs of the examination and the report.
6. The Regulator is to provide Ms Grant with a copy of Dr Robinson's report no later than seven (7) days from its receipt.
7. Ms Grant is to be responsible for her travel costs to and from the appointment, the costs of the preparation of the report from Dr Maguire and its attachments as well as the provision of the information set out in Order 2(b) to Dr Robinson.
8. Within 14 days of the receipt of Dr Robinson's report, each party is required to advise the other party and the Registry in writing of their position in respect of this appeal.
9. If required, the Commission will relist this matter for further hearing on a date to be fixed.
Notes:
(1) If Ms Grant fails to attend the scheduled medical examination without reasonable excuse or having attended refuses to be examined by Dr Robinson or attempts to obstruct the examination then Ms Grant will continue to not receive compensation or medical expenses. She will also be required to reimburse the Regulator for costs reasonably incurred by it in relation to the medical examination. Moreover, it will mean that her appeal will be determined without further medical evidence being admitted.
(2) Where the medical report discloses that Ms Grant has undergone revision surgery after the surgery performed on 5 May 2014 or that revision surgery is proposed, the Commission will still require Ms Grant to submit to the medical examination.
(3) Where Dr Maguire opines that the surgery has not improved Ms Grant's right wrist, the Commission will proceed to determine the appeal on the basis of the evidence admitted in the appeal and Dr Maguire's further report as ordered above. Further, Directions 2-9 above will be vacated. If either of the parties desire to make further submissions should Dr Maguire's report not be favourable to Ms Grant, then such submissions are required to be made to the Registry within seven (7) days of the receipt of that report.
(4) Whether the Regulator and Ms Grant remain responsible for the costs incurred as set out above will depend on the final outcome of the appeal. That is to say, if Ms Grant is unsuccessful in the appeal when it is finally determined, then in the final costs order made, she will be responsible for the costs of the examination and report. In the same vein, if the Regulator concedes the appeal or the appeal succeeds, then the Regulator will be responsible for Ms Grant's costs of complying with the Directions to attend the medical examination.
As the appeal relates to multiple injuries, one of which remains for determination, the Commission refrains from making any final orders on the appeal at this time.
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