Grant v Simon Blackwood (Workers' Compensation Regulator) (No. 2)
[2015] QIRC 12
•20 January 2015
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Grant v Simon Blackwood (Workers' Compensation Regulator) (No. 2) [2015] QIRC 012 |
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: | 20 January 2015 |
MEMBER: | Industrial Commissioner Fisher |
ORDERS: | 1. The Commission confirms the decision of the Regulator as it relates to cessation of weekly benefits. 2. The Commission sets aside the decision of the Regulator as it relates to the stopping of payment of medical treatment, hospitalisation and expenses for Ms Grant's right wrist injury. 3. The Commission substitutes a new decision that medical treatment, hospitalisation and expenses are payable from 10 September 2013 to 30 November 2014 in respect of the right wrist injury sustained by Ms Grant. 4. Any party wishing to seek costs is to notify the Registry within 14 days of the release of this decision. |
| CATCHWORDS: | Where worker sought to admit new medical evidence - where worker underwent further surgery during proceedings - worker ordered to submit to medical examination for right wrist injury - results of surgery considered - whether incapacity because of work related injury had stopped - whether further medical treatment was likely to improve the injury - determined decision to cease weekly benefits as at 9 September 2013 not wrongly made - determined decision not to allow further medical treatment wrong. |
| CASES: | Workers' Compensation and Rehabilitation Act 2003, s 144A, s 144B, s 556 Grant v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 118 Arnotts Snack Products Pty Ltd v Yacob (1984-5) 155 CLR 171 |
| APPEARANCES: | Ms J Grant, the Appellant, in person. |
Decision
On 31 July 2014 the Queensland Industrial Relations Commission as constituted delivered its decision in the appeal filed by Jennifer Grant against the decision of Simon Blackwood (Workers' Compensation Regulator) confirming the decision of WorkCover Queensland to cease her benefits from 9 September 2013.[1]
[1] Grant v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 118.
Ms Grant suffered multiple injuries as a result of a fall in her workplace on 29 September 2012. She claimed workers' compensation for her right wrist, right knee, left ankle and thoracic back pain. By the time of the appeal hearing the right knee injury had resolved and was not considered. In respect of the left ankle the Commission found that the incapacity because of the work related injury was not continuing and medical treatment was not likely to improve the condition. The Commission found that the medical evidence did not establish the existence of any injury with respect to the back pain.
The right wrist fell into a different category. Without rehearsing all that was said in the original decision, the Commission sent Ms Grant for an independent medical examination pursuant to s 556 of the Workers' Compensation and Rehabilitation Act 2003. This decision was made in the context of Ms Grant undergoing further wrist surgery whilst the appeal proceedings were on foot. I formed the view that "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." The timing of the surgery distinguished the present matter from other appeals which had been finalised and where no surgery was scheduled.
The Commission issued directions for the further conduct of the matter in circumstances where the surgery improved Ms Grant's wrist. These directions included a report from the surgeon who undertook the surgery, Dr Michael Maguire, and an examination and report by Dr Mark Robinson, who was appointed as the independent expert. Dr Robinson had previously performed (unsuccessful) surgery on Ms Grant's wrist but for reasons set out in the earlier decision, the Commission considered Dr Robinson was best placed to provide an independent examination.
The results of the surgery performed on 5 May 2014
Dr Maguire: In his report dated 22 October 2014, Dr Maguire said he performed a right wrist arthroscopy TFC debridement and wafer procedure and ECU sheath synovectomy and stabilisation on 5 May 2014. He also performed a right elbow endoscopic cubital tunnel release. He advised that the results of the surgery had improved Ms Grant’s wrist function. She has a stable distal ulnar and the ECU tendon is stable in its sheath. Her range of motion in her wrist and wrist pain has settled dramatically and she no longer has pain at end supination. Dr Maguire considered that the wrist injury was likely to improve with further medical treatment but the incapacity had not stopped. He expected that she would be able to return to work as a nurse within the next one to two months, however, the cubital tunnel release surgery has been less than optimal and further procedures were required. The ulnar nerve recovery could take up to 12 months or longer.
Dr Robinson: Dr Robinson examined Ms Grant on 12 November 2014. In his report dated 25 November 2014, Dr Robinson said the ECU instability had been effectively treated by the surgery and her wrist function had improved by the surgery. However, he noted ongoing problems with the ulna nerve and the need for revision surgery. He considered that the incapacity relating to Ms Grant's wrist had plateaued. She still has restricted movement but the wrist is less irritable after surgery.
The Regulator posed questions to Dr Robinson, additional to those asked by the Commission. In response to the question as to whether the surgery performed by Dr Maguire was appropriate to treat Ms Grant's symptoms, Dr Robinson said it had been his opinion that further surgery could make her clinical condition worse and was fairly pessimistic about the benefits. He noted however, that according to Ms Grant, she had sustained significant symptomatic and functional benefits from the surgery including reduced pain and improved sensation but had lost a range of motion and has an unstable ulnar nerve.
As a result of the reported symptomatic and functional benefits, Dr Robinson considered that although it was not appropriate for him to proceed with further surgery, it was appropriate for Dr Maguire to have performed the surgery.
Parties' submissions
Ms Grant: Ms Grant reports undergoing further surgery to her ulnar nerve on 1 December 2014 by Dr Maguire.
Ms Grant submits that Dr Maguire offered a likely recovery for the wrist and the surgery outcome was good. In her view, had the TFC repair been initially undertaken by Dr Robinson, as recommended by Dr Dodd, (who was Ms Grant's treating orthopaedic surgeon at the time of the original injury), the surgery performed by Dr Maguire would have been unnecessary. Further, Dr Robinson did not correct the subluxation of the ECU tendon.
Ms Grant submits that her functional restoration as a result of Dr Maguire's surgery is evident and there had been further improvement when she was examined by Dr Robinson. Nerve conduction studies show continuous improvement.
In relation to s 144A of the Act, which concerns the incapacity because of the work related injury, Ms Grant submits this did not stop when WorkCover terminated the claim. Neither has it stopped presently as she is still recovering from the latest surgery. Further, medical treatment is still required for the management of the injury: s 144B. This is because of the pathology found in the surgery undertaken on 5 May 2014 and the surgery necessary to rectify the work related injury.
Ms Grant seeks that her appeal be upheld.
The Regulator: The Regulator maintains its earlier submissions that the weight of medical opinion prior to the surgery being undertaken on 5 May 2014 was against that further surgery as it was unlikely to improve Ms Grant's injury. Further, the surgery performed has had mixed results. In this regard reliance is placed on comments made by Dr Robinson in his report that there is about a 10 to 15 per cent placebo effect based on the patient's belief in the outcome of the surgery.
In relation to s 144A of the Act, the Regulator submits that prior to the surgery Ms Grant's incapacity because of the work related injury had stopped because the medical evidence from Dr Robinson and Dr Maguire was that Ms Grant was capable of performing nursing roles other than occupational health nursing.
In relation to s 144B of the Act, the Regulator submits that the determination has to be made based on the weight of medical opinion at the time as to whether medical treatment is likely to improve the condition. It is not a decision to be made retrospectively i.e., after the surgery has been performed. If a positive outcome results from the surgery then that is because it was possible, not likely.
The Regulator seeks the appeal be dismissed.
Findings and Conclusion
Section 144A of the Act relevantly provides that a worker's entitlement to weekly payment of compensation stops when the incapacity because of the work related injury stops. Section 144B of the Act provides that a worker's entitlement to the payment of medical treatment, hospitalisation and expenses for an injury stops when the entitlement to weekly payments of compensation stops and medical treatment is no longer required for the management of the injury because the injury is not likely to improve with further medical treatment or hospitalisation.
This appeal raises two questions. The first question, which arises from s 144A of the Act, is whether the incapacity because of the work related injury had stopped as at 9 September 2013. The second question, which arises from s 144B of the Act, is whether further medical treatment was likely to improve the injury.
In relation to the question of incapacity, the Regulator relied on the decision in Colbran v Workers' Compensation Board of Queensland,[2] where de Jersey P cited with approval the judgment of McTiernan J in Thompson v Armstrong & Royse Pty Ltd,[3] that an injury results in incapacity for work when it takes away or diminishes the power of the worker to earn wages in some suitable employment. The employment is not necessarily with the employer for whom she was working when she sustained the injury but can be in the open labour market.[4] In relation to Ms Grant, the Regulator relied on the evidence of Dr Robinson, Dr Watson and Dr Maguire given during the hearing that certain types of nursing roles were capable of being performed by her.
[2] Colbran v Workers' Compensation Board of Queensland (1996) 152 QGIG 1180 ('Colbran').
[3] Thompson v Armstrong & Royse Pty Ltd (1950) 81 CLR 585 at 602-3.
[4] Ibid and Arnotts Snack Products Pty Ltd v Yacob (1984-5) 155 CLR 171, 177 cited in Colbran.
As a result of the surgery on 5 May 2014, Dr Robinson said Ms Grant did not have the capacity to return to work due to a restricted range of motion in her wrist and persistent symptoms in her ulna nerve region. Dr Maguire said that Ms Grant's capacity for work had been limited since the surgery and she would be able to return to her usual occupation as a nurse in or about November/December 2014.
Whereas the evidence established that she had some capacity for work prior to the surgery on 5 May 2014, the outcome of that surgery has impacted on Ms Grant's capacity for work. However, this appeal is about whether the decision to cease the weekly benefits on 9 September 2013 was wrongly made.
In the circumstances the Commission considers that the medical evidence, including that of Dr Maguire, supported the conclusion that the incapacity because of the work related injury ceased some time ago. Further incapacity may have arisen as a result of the subsequent surgery performed by Dr Maguire but that is not the relevant consideration. It may be a matter that is capable of consideration by the relevant workers' compensation authority. Accordingly, the Commission finds that the decision to cease weekly benefits as at 9 September 2013 was not wrongly made.
The second question concerns whether further medical treatment was likely to improve the injury.
The Regulator's decision, confirming that of WorkCover, in relation to the wrist injury, was taken in circumstances where the weight of specialist medical opinion (Drs Watson, Robinson and Dodd) was against the prospect of further surgery being likely to improve the injury. However, Dr Maguire had confidence that the procedure he was offering would prove beneficial. That opinion with respect to the wrist has proven to be correct, as acknowledged by Dr Robinson.
In my view, the decision that was to be made about the likelihood of improvement was essentially one to be determined between the competing opinions of Dr Maguire and Dr Robinson. This view is reached for the following reasons. Dr Dodd is not a wrist surgeon. The independent orthopaedic opinion sought from Dr Watson was that Ms Grant's presentation was not consistent with organic pathology. The Commission does not accept that opinion given, in particular, the evidence that the tear in the TFC remained, it not having been addressed by Dr Robinson's surgery.
Dr Robinson gave an honest assessment that further surgery in his hands was unlikely to succeed. The surgery offered by Dr Maguire was both to address an issue that had not been addressed by Dr Robinson as well as to correct the problems arising from his surgery.
I have reached the conclusion that the decision not to allow further medical treatment was wrong. This view is not reached in light of the more positive surgical outcome but because the original injury (TFC) was not addressed by Dr Robinson. In my view, and in light of the opinion of Dr Maguire, it was likely that revision surgery addressing the TFC would lead to an improvement. This has shown to be the case. Accordingly, I consider that Ms Grant is to be allowed the expenses available under s 144B of the Act in relation to her right wrist injury.
Further revision surgery was performed on 1 December 2014 by Dr Maguire. The report of Dr Robinson dated 25 November 2014 shows that this surgery was required to treat complications of previous surgeries, including that performed by him. Although the necessity for that surgery may be established by the report of Dr Robinson, it is outside the scope of this appeal and the directions issued by the Commission in its decision of 31 July 2014. Again, it may be more appropriate for the relevant workers' compensation authority to determine this issue.
The Commission makes the following orders:
1. The Commission confirms the decision of the Regulator as it relates to cessation of weekly benefits.
2. The Commission sets aside the decision of the Regulator as it relates to the stopping of payment of medical treatment, hospitalisation and expenses for Ms Grant's right wrist injury.
3. The Commission substitutes a new decision that medical treatment, hospitalisation and expenses are payable from 10 September 2013 to 30 November 2014 in respect of the right wrist injury sustained by Ms Grant.
4. Any party wishing to seek costs is to notify the Registry within 14 days of the release of this decision.
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