Grant v Simon Blackwood (Workers' Compensation Regulator) - [2014] QIRC 118

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Grant v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 118
PARTIES:	Grant, Jennifer (Appellant) v Simon Blackwood (Workers' Compensation Regulator) (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) State of Qld (Queensland Health) v Q-COMP and Beverley Coyne (2003) 172 QGIG 1447 at 1448
APPEARANCES:	Ms J. Grant, the Appellant, in person. Mr J.J. Wiltshire, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator)

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…

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 Grant v Simon Blackwood (Workers' Compensation Regulator)

Details

AGLC: Grant v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 118
Case: [2014] QIRC 118
Decision Date: 31 July 2014

CaseChat Overview and Summary

This case involved an appeal by Ms Grant against a decision made by the Workers' Compensation Regulator. The dispute centred on Ms Grant's application for compensation related to four injuries she claimed to have sustained in an accident. The appeal was heard in the Workers Compensation Appeals Commission. The primary legal issues the court had to decide were whether Ms Grant was entitled to weekly benefits and medical expenses, and whether she remained incapacitated due to her work-related injuries. A secondary issue was whether new medical evidence related to a surgery Ms Grant underwent between the hearing dates should be admitted.

The court examined the evidence provided by various medical specialists who suggested Ms Grant exhibited abnormal behaviour in relation to her injuries. While the court noted these observations, it did not make findings on whether Ms Grant exhibited abnormal illness behaviour. Regarding the left ankle injury, the court found that the medical evidence did not support the presence of a significant injury, as Dr Dodd and Dr Watson both concluded that the injury was stable and stationary, requiring no further treatment. Ms Grant had not presented any specialist medical evidence to counter this. The court also considered the resolution of the right knee injury and the need for Ms Grant to undergo a medical examination for her right wrist injury. Ultimately, the court ordered Ms Grant to submit to a medical examination by Dr Robinson and adjourned the appeal pending further orders.

The final orders of the court were that Ms Grant must submit to a medical examination by Dr Robinson and the appeal was adjourned until further order. This decision highlighted the importance of specialist medical evidence in workers' compensation claims and the court's cautious approach in admitting new evidence presented after the initial hearing.

Orders

Orders of the court

1. The Appellant is ordered to submit to a medical examination by Dr Robinson.

2. The appeal is adjourned until further Order.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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.