Hyde v Simon Blackwood (Workers' Compensation Regulator)
[2014] QIRC 99
•3 June 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Hyde v Simon Blackwood (Workers' Compensation | |
| Regulator) [2014] QIRC 099 | ||
| PARTIES: | Hyde, Garry | |
| (Appellant) | ||
| v | ||
| Simon Blackwood (Workers' Compensation Regulator) | ||
| (Respondent) | ||
| CASE NO: | WC/2013/96 | |
| PROCEEDING: | Appeal to Commission against a decision of the | |
| Regulator | ||
| DELIVERED ON: | 3 June 2014 | |
| HEARING DATES: | 14 October 2013 | |
| 5 November 2013 27 November 2013 (Respondent's submissions) 19 December 2013 (Appellant's submissions) 4 February 2014 (Appellant's further written submissions) | ||
| MEMBER: | Industrial Commissioner Knight | |
| ORDERS : | 1. The Appeal is dismissed. | |
| ||
CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION - decision of Simon Blackwood (Workers' Compensation Regulator) - Appellant bears the onus of proof - standard of proof - balance of probabilities - s 237(1)(c) - left knee excluded from appeal - medical evidence - failed to establish injury arose out of, or in the course of, employment where employment was a significant contributing factor - found injury to be a degenerative condition - Appellant has not sustained an "injury" pursuant to s 32 of the Act - claim not one for acceptance - decision of Regulator confirmed - Appeal dismissed. | |
| CASES: | Workers' Compensation and Rehabilitation Act 2003 | |
| s 550, s 32 , s 552a, s 237(1)(c)(i) and (ii) (reprint | ||
| No. 6B, 14 August 2012) Eric Martin Rossmuller AND Q-COMP (C/2009/36) - Decision < Labaj v WorkCover Queensland [1999] 162 QGIG 392 | ||
| APPEARANCES: | Mr G. Hyde, the Appellant, in person. Mr F. Lippett, Counsel, directly instructed for Simon Blackwood (Workers' Compensation Regulator). | |
| Decision |
[1] This is an appeal by Mr Garry Hyde (the "Appellant" / "Mr Hyde") 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", formerly known as Q-COMP) dated 15 January 2013. The decision of the Regulator confirmed an earlier WorkCover decision to reject the Appellant's claim for compensation, contending the Appellant did not sustain an "injury" pursuant to s 32 of the Act.
Brief Overview and History of the Appellant's Claim for Compensation
[2] Mr Hyde was employed as a wardsman (correctly titled Operational Services Officer - see Exhibit 5) for Queensland Health at the Princess Alexandra Hospital ("PA Hospital") commencing his employment some time in 2006 before retiring in early 2010.
[3] On 7 July 2011, Mr Hyde lodged a Notice of Claim for Damages with WorkCover Queensland seeking damages for both a right knee and left knee injury sustained over the period 19 July 2006 until February 2010. Mr Hyde claimed the injuries arose out of his usual duties which included bending, lifting and working on hard and/or concrete floors.
[4] In correspondence to the Appellant on 28 July 2011, WorkCover rejected this claim contending the injury had not arisen out of or in the course of employment, nor was employment a significant contributing factor to the injury.
[5] The Appellant submitted an Application for Review to the Regulator (or Q-COMP as it was then known) on 2 March 2012. The Regulator issued its Reasons for Decision on 15 January 2013 confirming the decision of WorkCover to reject the application for compensation in accordance with s 32 of the Act. Importantly, the decision of the Regulator related to Mr Hyde's right knee only.
[6] On 25 March 2013, Mr Hyde lodged a Notice of Appeal against the Regulator's decision.
Is Mr Hyde's left knee injury precluded from being the subject of this Appeal?
[7] The Notice of Claim for Damages signed on 7 July 2011 (Exhibit 1) referred to both Mr Hyde's right and left knee, with the mechanism of injury stated as:
"In the course of my duties I developed pain in both my knees. My duties included a lot of repetitive lifting, bending and carrying. Working on concrete floors aggravated these symptoms."
[8] Prior to this, on 8 December 2009, the Appellant had lodged a statutory application for compensation with WorkCover relating to his left knee injury which was said to have occurred over a period of time (one year) prior to lodgment of the application. The claim was accepted by WorkCover as an aggravation of a pre-existing condition, but was subsequently terminated.
[9] This decision was reviewed by the Regulator and later confirmed. Mr Hyde appealed to the Queensland Industrial Relations Commission (the Commission) but the file (WC/2010/101) was administratively finalised by Vice President Linnane after repeated attempts to contact Mr Hyde were unsuccessful.
[10] The Respondent contends the "over a period of time" left knee injury has been the subject of a prior claim, relying on s 237(1)(c)(i) and (ii) (as it then was, Reprint No. 6B, 14 August 2012) to preclude Mr Hyde's left knee from being included in these appeal proceedings.
[11] Mr Hyde, who was unrepresented during the proceedings, was provided with a copy of the relevant legislation in respect of this matter to assist with his understanding of the submission being made by the Regulator.
[12] Whilst Mr Hyde raised some concerns with his file (dealing with the left knee "over time" injury) being administratively closed when he was away in Broken Hill during the period the matter was set down in the Commission, it appeared he accepted these appeal proceedings would proceed with the focus being on his right knee injury. Certainly, his own evidence and the evidence of the General Practitioner called later in the proceedings to provide evidence in support of Mr Hyde's appeal generally concentrated on his right knee.
[13] Notwithstanding what transpired in the hearing, Mr Hyde's subsequent written submissions made reference to his claim being accepted "for both knees by MVM Legal, not one", contending that "both knees are the subject of the appeal no matter what Mr Lippett now asserts".
[14] It is difficult now to accept this submission given the Respondent's submissions and the Appellant's own acceptance during the proceedings that an over time injury for his left knee has previously been the subject of a claim, a review and proceedings in the Commission. In this respect, I find Mr Hyde's left knee is precluded from being the subject of this Appeal given the operation of s 237(1)(c)(i) and (ii) (Reprint No. 6B, 14 August 2012) and it is his right knee only which can be the subject of this appeal.
[15] Even if I were to be wrong on this point, the distinct lack of evidence before the Commission with respect to Mr Hyde's left knee injury is such that it is not possible to find, on the balance of the probabilities that the Appellant's injury arose out of, or in the course of, his employment and that employment was a significant contributing factor to the injury.
Standard of Proof
[16] For the appeal to succeed the Appellant must prove on the balance of probabilities that:
he suffered an injury, being an injury to his right knee; the injury arose out of, or in the course of, his employment as a
wardsman at the PA Hospital; and the Appellant's employment was a significant contributing factor to the
injury.
[17] Associate Professor Steadman's report (Exhibit 5) and oral evidence confirmed a diagnosis of degenerative knee arthritis. Dr Blomeley's oral evidence during the course of the hearing focused on the condition of arthritis and its possible causes as it related to Mr Hyde. Whilst he provided no clear diagnosis on behalf of the Appellant, Dr Blomeley's report (Exhibit 6) refers to Mr Hyde's ongoing right knee pain arising out of a work incident reported by the Appellant in May 2007.
Relevant Legislation
[18] Section 32 of the Act relevantly provides:
"32 Meaning of Injury
(1)
An injury is personal injury arising out of, or in the course of, employment if employment is a significant contributing factor to the injury.
…
(3) Injury includes the following - …
(b)
an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation -
(i) a personal injury; (ii) a disease; (iii)
a medical condition if the condition becomes a personal injury or disease because of the aggravation".
Nature of Hearing
[19] The appeal to the Commission is by way of a hearing de novo in which the onus of proof falls upon the Appellant.
Witnesses
[20] The Appellant, who was self-represented, relied upon his own evidence and that of his General Practitioner, Dr Neville Blomeley, of Upper Mount Gravatt Day & Night Medical Centre.
[21] The Respondent called evidence from Associate Professor Dr Peter Steadman, an Orthopaedic Surgeon, who examined the Appellant on 8 July 2011 and prepared an independent medico-legal report dated 18 July 2011 (Exhibit 5).
Evidence
[22] In addition to his role as a wardsman, Mr Hyde confirmed his previous employment history consisted of working as a postman for 11 years where he was required to pedal a bike to deliver the mail, working in the mines at Broken Hill and also the Broken Hill hospital.
[23] Under cross-examination Mr Hyde confirmed he first received the disability pension in 1986 for a back injury and continued to receive the pension periodically over the years depending on when he would do some work.
[24] Mr Hyde's evidence was that both his knees "were shot" and "they've both got to be replaced".
[25] The Appellant recalled injuring his right knee some time in 2007 in an incident at work at the PA Hospital when he was pulling a trolley or pushing a rubbish bin through a heavy door which came back and hit him on the right knee.
[26] Mr Hyde could not recall the exact date in 2007 that the incident with his right knee occurred, except that it was sore for a while, but then it got better. He also recalled that his left knee started to hurt after this but was unable to give a specific time frame within which this occurred.
[27] Mr Hyde confirmed he did not take any time off work for his right knee injury but gave evidence the injury was the subject of a subsequent WorkCover claim, which was later rejected.
[28] He recalled sometimes taking two days off work because of the pain and by the end of the second day he would be feeling "great", only to return to work and within one to two days of being back it was "impossible" to walk.
[29] Whilst it was not always entirely clear throughout the proceedings, Mr Hyde's view was that the workplace incident involving his right knee had preceded the onset of pain and other symptoms that arose in both his right and later his left knee.
[30] Whilst Mr Hyde initially spoke about the knee injury occurring over time as a result of having to walk on hard surfaces at the PA Hospital, the main thrust of his evidence tended to focus on the initial injury to his right knee, which in his view led to the onset of arthritis.
[31] In support of this position, Mr Hyde told the Commission he was advised by various podiatrists, other doctors and a "Dr North" that his knee pain was a work-related injury. Neither Dr North nor the other medical practitioners mentioned by the Appellant were called to provide evidence with respect to these claims.
[32] When asked to confirm if these comments related to the Appellant's right knee, Mr Hyde's evidence was somewhat unclear stating, "- yeah, that was me (sic) right knee, wasn't it? Left knee, right knee, had that many reports." (D1, P19, L20).
[33] Mr Hyde claimed he saw a doctor in June 2009 and was advised on that day, "the work is causing it and, you know, you're going to have to retire." His evidence was that he was able to last another six months before he eventually retired, as he could not walk.
[34] When pressed to provide more details around what he understood to be the link between his injury and the workplace activities that may have contributed to his current symptoms, Mr Hyde said:
"-- Well, I mean, the proof - I was working there. I never had it before. I had no injury to me (sic) legs and knees before ever. And - well, to my knowledge, never." (T1, P19, L40-45).
[35] Mr Hyde also called his treating General Practitioner, Dr Neville Blomeley of the Upper Mount Gravatt Day & Night Medical Centre, to provide evidence in support of the appeal.
[36] Dr Blomeley prepared a letter (Exhibit 6) dated 17 June 2013, detailing the circumstances of a right knee injury reported to him by Mr Hyde in May 2007 where
he, "…stated at that time he hit his right knee whilst at work. Since that time he has
had ongoing pain in the knee and pain limiting his walking…"[37] The Appellant sought Dr Blomeley's opinion with respect to two reports from some time in 2007; referring to an x-ray report and an MRI report, neither of which were provided to the Commission.
[38] Whilst it was not clear whether Dr Blomeley was viewing these reports at the time he gave evidence, he agreed with the suggestion from Mr Hyde that there did not appear to be any mention of arthritis in the Appellant's knees at that time, noting:
"…it doesn't specifically mention the medial compartment." (T2, P5, L1-5).
[39] When asked by the Appellant if he agreed that Mr Hyde's work could have been the cause for the onset of arthritis, Dr Blomeley opined:
"-- Oh, look, I think, you know, given that scenario work would have to be a hugely significant factor in the development of the arthritis, certainly. And the injury that you incurred in - that occurred at work [indistinct] and the repetitive nature of squatting, lifting, etcetera would all be significant factors in the development, I believe." (T2, P5, L10-15).
[40] However under cross-examination, when pressed to provide details of any bending and lifting undertaken by Mr Hyde, Dr Blomeley was unable to answer the question, later conceding, "I didn't specifically ask him that question" (T2, P8, L10).
[41] Dr Blomeley was given an opportunity to search through his records for any notes or comments relating to repetitive bending, lifting and walking in so far as it may have related to Mr Hyde's current symptoms, however the doctor was unable to locate any records.
[42] He subsequently expressed the view that the Appellant's work was a significant factor in the development of the arthritis in so far as the "initial injury was a starting factor - and then following that the repetitive work has been an ongoing factor in the cause of it."
[43] Dr Blomeley's comment in response to the Appellant's account of prior commentary by a Dr North about his inflamed patella was:
"--Yes. Certainly. That's - that's part of the development of the arthritis that the [indistinct] becomes inflamed, in the cartilage on the back of the patella becomes inflamed, and then - then [indistinct] wear and tear, and then that's the beginning phase of the arthritis, when the cartilage on the back of the patella begins to wear and - from the repetitive nature of the work. So yes. I agree with that." (T2, P6, L10-15).
[44] Under cross-examination, Dr Blomeley disagreed Mr Hyde's legs being in varus (bow-legged) had any impact on the development of his arthritis, expressing the view that varus deformity occurred because of the arthritis, rather than the other way round. Dr Blomeley's view was that the wear and tear on one part of the knee causes a deformity that puts pressure on the side of the knee.
Specialist's Evidence
[45] Associate Professor Dr Peter Steadman, an orthopaedic surgeon practicing in his field since 1995, provided evidence on behalf of the Respondent which included a medical report dated 18 July 2011 (Exhibit 5).
[46] In his report, Dr Steadman confirmed, "Mr Hyde suffers from bilateral degenerative knee arthritis".
[47] Dr Steadman's evidence was the condition of medial compartment osteoarthritis was experienced by 95 per cent of Caucasian people in our society, without any trauma having played a part.
[48] The specialist explained that:
"…people get gradually bowed legs, then they begin to get pain on the insides
of their knee as the medial part of the knee joint wears away and then progressively with time then they progress to sort of more [indistinct] arthritis throughout the rest of the knee." (T1, P25, L25-30)
[49] In his oral evidence, Dr Steadman stated that both of Mr Hyde's knees were in varus
(bowed) and "…the alignment is really significant in terms of the cause of medial
compartment arthritis of the knee." (T1, P25, L30).
[50] Dr Steadman's evidence was that arthritis is mainly a genetic constitutional condition unless there has been a significant specific injury that severely deranges the knee.
[51] In the specialist's view, such acute injuries could include professional footballers who may injure their cruciate ligament and have a knee reconstruction the following day, which would almost guarantee the onset of arthritis in 10-15 years' time. Another example provided by Dr Steadman was a substantial event like a car accident damaging cartilage which could ultimately lead to degeneration.
[52] In response to questioning from Mr Hyde, Dr Steadman explained the knee is divided into three compartments: the medial compartment which is on the inside of the leg, the lateral compartment which is on the outside of the leg and associated with rheumatoid arthritis, and the patella femoral compartment which is behind the kneecap and is quite isolated unless there has been a severe injury to the kneecap like a fracture.
[53] Again, Dr Steadman suggested the types of severe injuries that would induce arthritis would be experienced from professional footballers, car accidents or falls from a significant height.
[54] Under cross-examination, Dr Steadman took the position that the activity of mopping floors every day, side to side and backward and forward in passageways in the PA Hospital, would not primarily cause excessive wear and tear on the knees.
[55] Instead, Dr Steadman was of the view that if Mr Hyde's knees were arthritic then the activity would result in his knees being sore from being on his feet all day, but it would not result in the deterioration of the knee.
[56] Likewise, the specialist explained that simply walking in the course of daily life does not cause arthritis but that pain is likely to be caused from walking, just as pain is likely to subside in periods of rest.
[57] According to Dr Steadman, the size of the PA Hospital was not "big". He explained that from the time he commenced as Director of Orthopaedics at the PA Hospital in 1996 until 2000, he ran a staff clinic. During this time, and in his regular visits to the PA Hospital from 2000 onwards as a visiting specialist, Dr Steadman stated he was not aware of any particular prevalence of arthritic or other knee problems exhibited by staff that would not be expected outside of the normal parameters of people having arthritic conditions.
[58] On further questioning from the Appellant, Dr Steadman explained the injury Mr Hyde experienced when a door swung back and hit his right kneecap was different to arthritis on the inside of the knee.
[59] The difference according to the doctor was a door hitting the front of Mr Hyde's right knee would have upset the Appellant's patellofemoral joint and fat pad behind the patella, which is not the same as the later findings of arthritis in the Appellant's knees.
[60] In response to a question from the Appellant as to why he had been told by Dr McMeniman that he had no choice but to resign because his work activities were aggravating his knees, Dr Steadman opined the Appellant could not undertake the work required of him due to sore knees which occurred due to his arthritis, which, in Dr Steadman's opinion, was different to saying that walking around the hospital all day or mopping a corridor was causing the arthritis (my emphasis).
Considerations and Findings
[61] The case developed by Mr Hyde during the course of the proceedings was that his employment as a wardsman at the PA Hospital contributed significantly to the development of arthritis in his right knee. In particular, Mr Hyde referred to the requirement for him to work across hard floor surfaces and made reference to a 2007 incident where a swinging door hit his right knee.
[62] In this appeal, Mr Hyde is required to prove on the balance of probabilities the arthritis in his right knee arose out of, or in the course of his employment as a wardsman at the PA Hospital and further, that his employment was a significant contributing factor to the condition.
[63] Whilst Dr Blomeley's written report does not provide a diagnosis, in my view his oral evidence and the subsequent evidence of Dr Steadman confirms Mr Hyde suffers from arthritis of the right knee.
[64] Dr Steadman's position (Exhibit 5) is that Mr Hyde suffers from bilateral degenerative knee arthritis and more specifically, mild medial compartment osteoarthritis of both knees.
[65] Dr Steadman was not of the opinion that Mr Hyde's work related activity would cause or adversely affect the outcome of long-term osteoarthritis, taking into account his age, obesity and other co-morbidities.
[66] In his report dated 18 July 2011, Dr Steadman noted:
"Mr Hyde does have pre-existing knee arthritis and in my opinion we are seeing nothing other than the normal degenerative process occurring. There was no specific event and no other factors to suggest that the occupational activity at the PAH has led to a significant deterioration in his condition."
[67] In contrast, Dr Blomeley's view was that an initial injury to Mr Hyde's right knee in 2007 was a "starting factor" and that "repetitive work" has been an ongoing cause of his condition.
[68] A close review of his evidence reveals there is a general acceptance from Dr Blomeley that Mr Hyde is suffering from arthritis, notwithstanding a difference of opinion with respect to how the arthritis may have arisen.
[69] Mr Hyde's oral and written submissions make no reference to an aggravation of a pre-existing condition though there was some suggestion from Dr Blomeley during the proceedings that Mr Hyde's right knee injury of 2007 pre-empted and perhaps even led to the onset of Mr Hyde's condition in conjunction with the repetitive bending and lifting associated with his work duties.
[70] In support of his appeal, Mr Hyde also relied on comments he says were made to him by various medical specialists including a "Dr North" indicating there was a direct link between his condition and his prior workplace duties. The difficulty I have with this position is that aside from Dr Blomeley, the medical officers referred to by Mr Hyde during the course of the proceedings were not called to give evidence. In turn, the weight (if any) the Commission is able to place on the comments which Mr Hyde attributed to these specialists is very limited.
[71] Mr Lippett, on behalf of the Regulator submits there is no acceptable evidence Mr Hyde's right knee arose out of, or in the course of, employment; or that employment was a significant contributing factor. Counsel for the Regulator contends there is nothing in the evidence of Dr Steadman that should cause the Commission any discomfort.
[72] In his evidence, Dr Steadman outlined the causes of medial compartment osteoarthritis relating them back to his original examination of Mr Hyde, highlighting the varus (bowed) nature of his legs and the significance of this condition in terms of the cause of medial compartment arthritis in Mr Hyde's knees.
[73] When being cross-examined by Mr Hyde, the specialist demonstrated a considerable degree of patience and compassion taking the time to explain to the Commission and the Appellant the structure of the knee and the differences between a condition such as arthritis and other injuries associated with the patella.
[74] Dr Steadman's evidence with respect to the cause of Mr Hyde's arthritis was markedly different to that of Dr Blomeley.
[75] Whilst Dr Steadman was of the view that duties such as mopping from side to side may well have contributed to Mr Hyde's pain, his evidence was that such activity was not the root cause of Mr Hyde's degenerative knee arthritis.
[76] In contrast Dr Blomeley noted the following:
"You say Mr Hyde's employment was hugely significant; is that right?-- Yes. I
do.Would you tell me, please, the duties of his employment which you say were hugely significant?-- Repetitive bending. So bending, lifting are the main factors involved. He'd certainly have to walk a fair distance, but mostly the
bending - bending and lifting are the major factors, I would think… I don't
think the walking is a significant factor, I think it would be more the bending
and - bending and lifting that were the major factors… He had to bend down,
pick up patients, pick up anything from the ground." (T2, P7, L15-35)
[77] The difficulty I have with Dr Blomeley's evidence is that although he was quite prepared to attribute the cause of Mr Hyde's condition to his work duties, he later acknowledged under cross-examination that he had not specifically asked Mr Hyde during their discussions to provide him with details of any bending and lifting undertaken during the course of his duties, conceding, "I didn't specifically ask him that question" (T2, P8, L10).
[78] The proceedings were adjourned to provide Dr Blomeley with an opportunity to locate any contemporaneous notes he may have made with respect to Mr Hyde's duties, but he was not able to locate any records instead relying on his past experience working in a hospital as the basis for the duties he understood Mr Hyde to be performing.
[79] Likewise, during the proceedings Mr Hyde was only able to provide limited examples of the nature of the work undertaken by him whilst at the PA Hospital and how this may have contributed to his condition.
[80] In his oral evidence, Dr Blomeley suggested Mr Hyde's right knee injury of 2007 may have started or contributed to Mr Hyde's arthritis. In this regard, I agree with the Respondent's submission that even if I accepted this evidence, which I have not, the right knee injury cannot be taken into account given it was found to have been not compensable at the time the claim was made for that particular injury.
[81] In considering the medical evidence before me, I prefer the evidence of Dr Steadman to that of Dr Blomeley in so far as it relates to Mr Hyde's degenerative knee arthritis and his views that there were no other factors to suggest the Appellant's occupational activity at the PA Hospital led to a significant deterioration in his condition.
[82] Dr Steadman's evidence, comparatively, was at all times consistent and logical.
1
| [83] In this matter Mr Hyde bears the onus of proof on the balance of probabilities | that |
the condition he is suffering is causally related to his workplace and further, that his
work is a significant contributing factor.[84] As described by the former President of this Commission:
"The appeal de novo, as it is sometimes called, to the Industrial Magistrate is in
truth a full trial at which each party is entitled to and should call all evidence
2
available which is favourable to that party's case ." [85] During the proceedings, Mr Hyde relied heavily on comments made to him by Dr North and other medical officers but regrettably they were not called to give evidence.
[86] As a result, whilst I accept Mr Hyde suffers from mild medial compartment osteoarthritis there is insufficient evidence before me to be satisfied his condition arose out of, or in the course of, his employment as a wardsman at the PA Hospital, nor am I able to find the Appellant's employment was a significant contributing factor to the development of this arthritis condition. Rather, I accept that the arthritis in Mr Hyde's knee is a degenerative condition.
[87] The decision of the Regulator is confirmed.
[88] Costs are reserved.
[89] Order accordingly.
1 Eric Martin Rossmuller AND Q-COMP (C/2009/36) - Decision <
2 Labaj v WorkCover Queensland [1999] 162 QGIG 392
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