McCarthy and K & S Freighters Pty Limited (Compensation)
[2016] AATA 476
•5 July 2016
McCarthy and K & S Freighters Pty Limited (Compensation) [2016] AATA 476 (5 July 2016)
| Division | GENERAL DIVISION | |
| File Number(s) | 2015/1696 | |
| Re | Scott McCarthy | |
| APPLICANT | ||
| And | K & S Freighters Pty Limited | |
| RESPONDENT | ||
Decision
| Tribunal | Senior Member CR Walsh |
| Date | 5 July 2016 |
| Place | Perth |
In accordance with s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and remits the matter to the Respondent for reconsideration in accordance with the following:
· The Tribunal DIRECTS that from 9 December 2013, and continuing, the Respondent is liable to:
(i) pay to or on behalf of the Applicant medical and like expenses pursuant to s 16 of the Safety, Rehabilitation and Compensation Act 1988; and
(ii) pay the Applicant weekly compensation payments pursuant to s 19 of the Safety, Rehabilitation and Compensation Act 1988,
in respect of his “musculoligamentous strain lower back” injury sustained on 3 May 2012; and
· The Tribunal RECOMMENDS that the Applicant complete a rehabilitation program in accordance with s 36 and s 37 of the Safety, Rehabilitation and Compensation Act 1988 and that a new determination be issued by the Respondent whereby the Applicant’s continuing weekly compensation payments be calculated based on the difference between the Applicant’s NWE (normal weekly earnings) and the amount found to be appropriate following the Applicant’s completion of the rehabilitation program.
The Tribunal ORDERS, pursuant to s 67(8) of the Safety, Rehabilitation and Compensation Act 1988, that the costs of these proceeding incurred by the Applicant be paid by the Respondent in accordance with s 6.9 of the Tribunal’s Guide to the Workers’ Compensation Jurisdiction, dated 14 July 2015.
...........[Sgd].............................................................
Senior Member CR Walsh
Catchwords
COMPENSATION – Applicant sustained “musculoligamentous strain lower back” injury on 3 May 2012 – Applicant’s employment with the Respondent terminated on 9 December 2013 – decision made by Respondent that it has no present liability, as at 23 November 2014, to pay Applicant compensation for medical and like expenses and weekly compensation payments - decision under review set aside and remitted for reconsideration in accordance with direction and recommendation
Legislation
Safety, Rehabilitation and Compensation Act 1998 – s 16 – s 19 - s 36 – s 37 – s 67(8)
Secondary Materials
Guide to the Workers Compensation Jurisdiction, dated 14 July 2015 – s 6.9
REASONS FOR DECISION
Senior Member CR Walsh
5 July 2016
introduction
Mr McCarthy seeks a review of a decision made by K & S Freighters Pty Ltd (K & S Freighters) on 8 April 2015 that K & S Freighters has no present liability, as at 23 November 2014, to pay Mr McCarthy compensation under s 16 of the Safety Rehabilitation and Compensation Act 1998 (SRC Act) (for medical and like expenses) and s 19 of the SRC Act (for weekly compensation payments) in respect of his “musculoligamentous strain lower back” injury sustained on 3 May 2012.
The significance of the date “23 November 2014” is that on 23 November 2014 Dr John Low, Consultant Occupational Physician, OccuMed, provided a report stating:
The current diagnosis is degenerative change of the lumbosacral spine.
…………
I believe that the musco-ligamentous strain in the lower back/lumbar spine at L4/5 has fully recovered.
Factual & procedural background
Mr McCarthy was born on 10 July 1973 and is currently 42 years of age. He will be 43 very soon.
Mr McCarthy commenced employment with Regal Transport, a division of K & S Freighters, in July 2011 as a forklift operator/loader.
On 3 May 2012, Mr McCarthy lodged an “Incident Report Form – Notification and Investigation” with K & S Freighters in which he claimed that on 3 May 2012 at 8.45am he:
Went to remove carton from back of taut liner. Carton wasn’t labelled with kg’s so thought he could lift it. Pulled carton off trailer and the weight caused him pain in his back. Nathan Kelly and Ra both saw the incident.
Immediately dropped carton.
In a “Workers’ Compensation FIRST Medical Certificate”, dated 3 May 2012, Dr Elaine Soon, of Kinetic Health, reported the following:
Patient had presented with Stewart Baker, Supervisor. Injured low back after attempting to lift a heavy box (which he later realised was 80kg) out of a trailer at chest height. No significant hx [i.e. history] of back pain. On exam, painful+++ gait, stiffness of lower back, lumbar spine - able to flex to ankles but with pain, extension sore but full range, lateral flexion is painful but full range, Slump test negative. Impression: Muscular/mechanical back pain. Plan: Does not require xray, for Voltaren tds, panadeine forte, heat packs. Fit for light duties as of today, no fork lift driving. For admin work. Review on Tuesday 8/5/12.
Also on 3 May 2012, Mr McCarthy lodged a “Claim for Workers' Compensation” form with K & S Freighters. In his claim form, Mr McCarthy said he developed a lower back injury on 3 May 2012 at 8.45am as he was unloading a truck in the yard at 5 Kalamunda Road, South Guildford, as follows:
Box on trailer needed to be relocated to a pallet for transportation. Box not labelled as heavy nor did it feel heavy, when first moved. Attempted to lift box onto pallet. Weight too heavy and dropped box.
Mr McCarthy also noted the following on his claim form:
box not labelled - no warning of excessive weight, box not on pallet. Attempted lifting a box.
On 7 May 2012, Dr Paul Poon certified Mr McCarthy as fit for a restricted return to work from 8 May 2012 to 15 May 2012.
On 10 May 2012, Dr Elaine Soon certified Mr McCarthy as fit for restricted return to work from 10 May 2012 to 14 May 2012.
On 14 May 2012, Dr Poon certified McCarthy as fit for restricted return to work until 28 May 2012 and referred Mr McCarthy to a physiotherapist.
On 21 May 2012, Dr Poon certified Mr McCarthy as totally unfit for work from 21 May to 22 May 2012 and referred Mr McCarthy for a CT scan.
The CT scan was performed by Dr Adrian Yoong, Perth Radiological Clinic, on 22 May 2012. The CT scan states the following:
Comment: Appearances suggest transitional vertebrae with partial sacralisation of L5 and small rudimentary L5/S1 disc.
Mild L4/5 disc height loss with a shallow broad-based left paracentral and foraminal disc bulge. This extends posteriorly to indent upon the anterior aspect of thecal sac and may contact the forming left L5 nerve root. This may account for the patient’s left leg radiculopathy. Bridging degenerate osteophyte formation seen at the anterior aspect of the left sacro-iliac joint.
On 22 May 2012, Dr Poon certified Mr McCarthy as totally unfit for work until 5 June 2012.
Mr McCarthy first received physiotherapy treatment on 23 May 2012.
On 25 May 2012, K & S Freighters made the following determination:
DETERMINATION
In accordance with the provisions of the SRC Act I hereby determine that:
1. K&S Freighters Pty Ltd is liable to pay compensation in accordance with Section 14 of the SRC Act in respect of musculoligamentous strain lower back sustained on 03/05/2012.
…….
3. Medical treatment and Incapacity as deemed appropriate by a legally qualified medical practitioner is payable pursuant to Section 16 and Section 19 respectively, of the SRC Act.
On 1 June 2012, Mr Nick Kane, Physiotherapist, wrote to Dr Poon concerning his treatment of Mr McCarthy, stating:
Scott has responded really [well] to the physio treatment for his low back pain sustained at work. To date he has received 4 treatments consisting of STM, dry needling, mobilisations and education regarding correct movement patterns to decrease his pain. He has been compliant with his HEP.
Scott’s ROM is now WNL with no pain. He does still report some pain/discomfort with lifting and reports an intermittent ache which is more muscular….
Scotts’ improvement is gradual however I feel he will benefit from further physio to improve his control and movement patterns, decrease pain and help prevent further injuries.
On 5 June 2012, Dr Poon certified Mr McCarthy totally unfit for work from 5 June 2012 to 6 June 2012, but fit for restricted return to work from 7 June 2012 to 21 June 2012.
On 7 June 2012, WorkFocus Australia (WorkFocus) completed their “Initial/Worksite Assessment Report” and Mr McCarthy, K & S Freighters and WorkFocus agreed that Mr McCarthy would perform suitable duties, and that the goal was for Mr McCarthy to perform pre- injury duties.
On 18 June 2012, Dr Poon reviewed Mr McCarthy and certified him totally unfit for work from 18 June 2012 to 19 June 2012, and fit for restricted return to work until 18 September 2012.
On 21 June 2012, Dr Poon certified Mr McCarthy as fit for restricted return to work from 21 June 2012 to 21 July 2012.
On 28 June 2012, Dr Poon certified Mr McCarthy as totally unfit for work for that day.
On 4 July 2012, Dr Poon certified Mr McCarthy as totally unfit for work from 8 July 2012 to 4 July 2012, but fit for restricted return to work from 5 July 2012 to 6 August 2012.
Mr McCarthy attended an after-hours GP clinic and obtained a medical certificate from Dr Catherine Moore certifying him totally unfit for work from 5 July 2012 to 9 July 2012.
On 9 July 2012, Dr Poon certified Mr McCarthy as totally unfit for work from 9 July 2012 to 10 July 2012, fit for restricted return to work from 11 July 2012 to 20 July 2012 and referred Mr McCarthy to a pain specialist, Dr Chin- Wern Chan.
On 17 July 2012, Dr Poon certified Mr McCarthy as totally unfit for work on 17 July 2012, but fit for restricted return to work from 18 July 2012 to 17 August 2012.
On 24 July 2012, K & S Freighters obtained a medical report from Dr Paul Poon which states:
6.Prognosis for eventual full recovery but likely to flare up intermittently and with aggravating activities.
7. 7.1 Yes, able to work as per schedule agreed in program.
7.2No, unable to work at pre-injury level due to pain and side effect of drowsiness from medication. Unable to operate forklift/machinery safely.
7.3As per Work Focus schedule. Lifting up to 5kg. Graduated work hours.
7.4Intermittently unable to work due to poor sleep the night before or severe pain flareup. Off work for few days a time.
On 31 July 2012, Dr Poon certified Mr McCarthy as fit for restricted return to work that day.
On 2 August 2012, Dr Poon certified Mr McCarthy as fit for restricted return to work from 2 August 2012 to 3 September 2012.
On 6 August 2012, WorkFocus prepared a “Suitable Duties Plan (4)” for Mr McCarthy which incorporated a weekly progress review and an anticipated completion date of 5 November 2012. The Suitable Duties Plan provides that the “Rehabilitation goal” is for:
Mr McCarthy to return to his pre-injury position as a Yardman/Fork Lift Operator with K & S Freighters undertaking his pre-injury hours of 55 hours per week.
On 15 August 2012, WorkFocus provided a “Progress Report” conducted a review which outlined Mr McCarthy’s current symptoms and restrictions for work, as follows:
Current symptoms and resultant restrictions
·Mr McCarthy reports ongoing lower back pain symptoms, slightly to the left side of the spine, and affected sleeping patterns.
·Mr McCarthy is certified fit for restricted return to work, with restrictions as per schedule (Suitable Duties Plan). Dr Poon advised on the latest Progress Medical Certificate that Mr McCarthy was able to return to work if able to sleep and rest at night.
On 20 August 2012, McCarthy was assessed by Dr Steven Overmeire, Consultant Occupational Physician, OshGroup and, on 28 August 2012, Dr Overmeire provided a report.
On 24 August 2012, Dr Poon certified Mr McCarthy as totally unfit for 24 August 2012, but fit for restricted return to work from 27 August 2012 to 24 September 2012.
On 11 September 2012, Dr Poon certified Mr McCarthy as fit for restricted return to work from 18 September 2012 to 11 December 2012.
On 22 October 2012, Dr Poon certified Mr McCarthy as fit for restricted return to work from 22 October 2012 to 26 November 2012.
On 5 November 2012, Dr Poon certified Mr McCarthy as totally unfit for 5 November 2012 and 6 November 2012, but fit for restricted return to work until 30 November 2012.
On 22 November 2012, Dr Poon certified Mr McCarthy totally unfit for work for 22 November 2012, but fit for restricted work from 23 November 2012 until 22 December 2012.
On 3 December 2012, Dr Poon certified Mr McCarthy as totally unfit for work from 26 November 2012 to 10 December 2012.
On 11 December 2012, Dr Poon certified Mr McCarthy as totally unfit for work from 11 December to 13 December 2012.
On 14 December 2012, Dr Poon certified Mr McCarthy as fit for restricted return to work from 14 December 2012 to 14 January 2013 and referred Mr McCarthy the Applicant to Ms Valentina Ukich, Psychologist.
On 18 December 2012, Mr McCarthy lodged a further “Claim for Workers’ Compensation” form with K & S Freighters in which he claimed “depression” and stated he had seen Ms Valentina Ukich for “psychological diagnosis/help”. Mr McCarthy stated that he first noticed he was ill on 26 November 2012 and in response to the question “What started the chain of events that led to your injury or illness” noted the following:
Back injury incurred at work, pressure from Taite Freeman, not being able to tasks I used to be able to do. It is claimed that the depression related to the original back injury.
On 10 January 2013, Dr Poon certified Mc McCarthy as fit for restricted return to work, on the basis of his ongoing symptoms related to his back injury and his depression.
In her letter to Dr Poon, dated 30 January 2013, Ms Valentia Ulich, Registered Psychologist, stated:
Scott was diagnosed with depression following a back injury at work. This has been complicated by subsequent workplace bullying. He has been unable to use his usual stress coping strategies which are primarily surfing and working on cars, due to the injury.
On 20 February 2013, Mr McCarthy was assessed a second time by Dr Steven Overmeire, Consultant Occupational Physician, OshGroup, and, on 6 March 2013, Dr Overmeire provided a report.
On 26 February 2013, at Dr Overmeire’s request, Mr McCarthy underwent a whole body bone scan, performed by Dr Patrick Ng, Nuclear Medicine Physician & Radiologist at Envision Medical Imaging.
On 8 March 2013, Mr McCarthy saw Dr Jonathan Spear, Consultant Psychiatrist. Dr Spear provided a report dated 26 March 2013.
On 11 March 2013, Dr Poon certified Mr McCarthy as fit for restricted return to work from 11 March 2013 to 11 June 2013.
On 2 April 2013, Dr Poon certified Mr McCarthy as totally unfit for work from 25 March 2013 to 2 April 2013, and fit for restricted work from 2 April 2013 to 11 June 2013.
On 4 April 2018, Dr Poon certified Mr McCarthy as fit for restricted work and recommended further physiotherapy treatment.
On 22 April 2013, Dr Poon certified Mr McCarthy as fit for restricted work 5 hours a day.
On 5 May 2013, Mr McCarthy saw Dr Amatul Uzma, Psychiatrist, on referral from Dr Poon.
On 7 May 2013, Dr Poon certified Mr McCarthy as fit for restricted work, and the restrictions were changed for Mr McCarthy to work 7 hours a day, until 26 August 2013.
On 23 May 2015, Mr McCarthy saw Dr Chin-wern Chan, Consultant in Pain Medicine and Anaesthesia. Dr Chan recommended that Mr McCarthy take Lyrica (75m g) and have lumbar facet joint injections, an epidural and root sleeve injections to target his consistent lower back pain.
On 27 May 2013, Dr Poon certified Mr McCarthy as fit for restricted work until 26 August 2013.
On 30 May 2013, Dr Poon certified Mr McCarthy as fit for restricted work until 30 July and noted that Mr McCarthy was awaiting injections.
On 10 June 2013, Dr Poon certified Mr McCarthy as totally unfit for work from 8 June 2013 to 17 June 2013.
On 17 June 2013, Dr Poon certified Mr McCarthy as totally unfit for work for two days on the basis of his back pain, and certified Mr McCarthy as fit for restricted work from 19 June 2013 until 10 July 2013.
On 25 June 2013, WorkFocus sent a “Progress Report” to K & S Freighters in relation to Mr McCarthy’s progress with his Return to Work program. That Progress Report states:
Current symptoms and resultant restrictions
·Mr McCarthy is certified fit for restricted return to work.
·He is certified fit to undertake seven hours per day, five days per week, with a lifting restriction of ten kilograms.
………..
·Mr McCarthy was to progress to full pre-injury hours and duties by the end of December 2012 however was diagnosed with depression by Dr Poon and subsequently was certified unfit for work.
On 1 July 2013, Dr Poon certified Mr McCarthy as totally unfit for work from 1 July 2013 to 15 July 2013.
On 22 July 2013, Dr Poon certified Mr McCarthy as totally unfit from 15 July 2013 to 5 August 2013.
On 26 July 2013, K & S Freighters made the following determination in relation to Mr McCarthy’s compensation claim for “depression”:
DETERMINATION
In accordance with the provisions of the Safety, Rehabilitation and Compensation Act 1988, I hereby determine that:
1.K & S Freighters is not liable to pay compensation to the said Scott McCarthy in accordance with Section 14 of the Safety, Rehabilitation and Compensation Act 1988 in respect of “depression” reported to have been sustained in the 26/11/2012.
On 1 August 2013, Dr Poon certified Mr McCarthy as fit for restricted return to work, 7 hours a day, 5 days a week, from 5 August 2013 to 5 September 2013.
On 9 September 2013, Dr Poon certified Mr McCarthy as totally unfit for 9 September 2013, but fit for restricted return to work from 5 September 2013 to 7 October 2013.
On 25 September 2013, Mr McCarthy saw Dr Chan, Consultant in Pain and Anaesthesia, who recommended further injections, continuing medication and hydrotherapy.
On 14 October 2013, Dr Poon certified Mr McCarthy as totally unfit for work from 7 October 2013 to 13 October 2013, and fit for restricted work from 14 October 2013 to 1 December 2013.
On 22 November 2013, Dr Poon certified Mr McCarthy as fit for a restricted return to work from 22 November 2013 to 20 January 2014.
On 9 December 2013, Dr John Caldow certified Mr McCarthy as totally unfit for work from 9 December 2013 to 16 December 2013, as a result of recent exacerbation of his back pain.
On 9 December 2013, K & S Freighters terminated Mr McCarthy’s employment due to his alleged repeated failure to notify K & S Freighters of his absences from work.
On 10 December 2013, K & S Freighters wrote to Mr McCarthy, stating:
Your claim for time off work has been determined and payments have been authorised based on your normal weekly earning.
Attached is a notice setting out the terms of the determination.
I wish to advise that your 45 week balance payment of 100% Normal Weekly Earning (NWE) under Section 19(2) as at 10/12/2013 currently has 18.09 weeks remaining.
Following the first 45 weeks of incapacity, we are required to reduce your benefit to 75% of the normal weekly earnings you would be able to earn had you been at work.
If you have returned to work at that stage, but on reduced hours, we will reduce your benefit to between 75% and 100% of your normal weekly earnings depending upon the number of hours per week you work.
Attached to K & S Freighters’ letter to Mr McCarthy, dated 10 December 2013, was the following “Determination”, also dated 10 December 2013:
DETERMINATION
In accordance with the provisions of the Safety, Rehabilitation and Compensation Act 1988, liability has been accepted in respect of “musculogiamentous strain lower back” sustained on 3/5/2012, I hereby determine that:
1. In accordance with Section 4 of the SRC Act, your Normal Weekly Hours (NWH) was assessed on 3/5/2012 as 49.50 hours per week.
2. In accordance with Section 8 of the SRC Act, your Normal Weekly Earnings (NWE) was assessed on 3/5/2012 as $1,417.30 per week.
3. In accordance with Section 8 of the SRC Act, your Normal Weekly Earnings (NWE) was re-assessed as at 3/7/2013 as $1,452.73 per week due to 4% EBA increase.
4. For the period 27/11/2013 to 3/12/2013 there was 1 day leave without pay (LWOP) and therefore in accordance with Section 8(10) of the SRC Act your NWE was adjusted for this period of time.
In accordance with the provisions of the SRC Act, your payment of compensation has/have been authorised based on your normal weekly earnings for the following period:
Start Date
End Date
NWH
NWE
Wkly rate 100%
Amount for the period
Able to earn
Amount paid
Section
27/11/2013
03/12/2013
49.50
$1,452.73
100
$1,162.18
$810.40
$351.78
19 2
On 16 December 2013, Dr Poon certified Mr McCarthy as totally unfit for work from 16 December 2013 to 6 January 2014.
On 10 January 2014, Dr Poon certified Mr McCarthy as fit for restricted return to work from 13 January 2014 to 17 February 2014, recommended that Mr McCarthy continue physiotherapy and that he see Dr Chan about the recommended injections.
On 4 February 2014, WorkFocus completed a “Closure Report” stating the following:
Occupational Rehabilitation Outcome
Occupational Rehabilitation Service: Rehabilitation Program
Occupational Rehabilitation Outcome: Return to work
Employment status at case closure: Worker successfully achieved return to work undertaking 35 hours per week of Modified Yardman/Forklift Duties. His employment was terminated due to reasons outside his Rehabilitation Program.
On 10 March 2014, Dr Poon certified Mr McCarthy as fit for work 5 hours a day, 3 days a week from Monday 17 February 2014 to Monday 23 June 2014.
On 19 March 2014, Centrelink wrote to K & S Freighters regarding Mr McCarthy’s “Request for Compensation”.
On 24 March 2014, K & S Freighters wrote to Centrelink in relation to Mr McCarthy’s Centrelink claim.
On 13 June 2014, Dr Poon certified Mr McCarthy as fit for restricted return to work from 13 June 2014 to 3 November 2014 with the same limitations as before.
On 15 July 2014, Mr Arul Bala, Consultant Neurosurgeon, wrote to Dr Poon, Mr McCarthy’s General Practitioner, reporting on his review of Mr McCarthy that day.
Under cover of a letter from Mr McCarthy’s solicitors, Dwyer Durack, dated 4 August 2014, Mr McCarthy lodged a “Claim for Workers’ Compensation”, dated 4 August 2014, with K & S Freighters for a “lower back” injury sustained on 3 May 2012. Dwyer Durack’s covering letter states:
We are instructed that our client’s weekly payments of compensation ceased on or around 9 December 2013 and our client seeks to have these payments reinstated.
On 7 August 2014, Dr Poon certified Mr McCarthy as fit for restricted return to work from 7 August 2014 to 3 November 2014.
On 7 August 2014, Mr John Reppin of K & S Freighters emailed Mr McCarthy’s solicitors, Dwyer Durack, stating the following:
I refer to your letter dated 04/08/2014 in respect of you (sic.) client Mr Scott Damian McCarthy and the attached “Claim for Workers’ Compensation” in respect of “lower back” injury sustained on the 03/05/2012.
Please be advised that Mr McCarthy already has an accepted claim for compensation in respect of “musculogiamentous strain lower back” sustained on the 03/05/2012 with a claim number of “KSF0000638”.
Can you please confirm if Mr McCarthy is claiming for a new injury?
Further to your letter, Mr McCarthy’s employment was terminated on the 09/12/2013 for repeated failure to notify K & S Freighters of his absenteeism. I believe there is an application for unfair dismissal and the matter is listed for hearing on the 29/10/2014.
On 7 August 2014, Mr McCarthy’s solicitors, Dwyer Durack, emailed Mr Reppin, in reply, stating the following:
I can confirm my client’s claim is not for a new injury.
On 8 August 2014, Mr Reppin of K & S Freighters emailed Mr McCarthy’s solicitors, Dwyer Durack, stating the following:
In that case then this claim has already been determined.
On 8 August 2014, Mr McCarthy’s solicitors, Dwyer Durack, emailed Mr Reppin, in reply, stating the following:
Our instructions are that our client’s employment was terminated on or around 9 December 2013 and he has not been restored to his pre injury capacity.
To reiterate the content of our initial letter, our client is seeking a reinstatement of his weekly payments of compensation from 9 December 2013.
On 13 August 2014, K & S Freighters commissioned LS Partners, Investigators Risk Consultants Insurance Assessors (LS Partners) to conduct surveillance of Mr McCarthy.
On 1 September 2014, Mr McCarthy’s solicitors, Dwyer Durack, wrote to K & S Freighters stating the following:
Our client is under the care of Dr Paul Pool, General Practitioner…..
Treatment since December 2013 has been of a conservative nature in the form of GP appointments, physiotherapy appointments and medication in the form of Panadeine Forte, Panadol, Mobic, Lyrica and topical medication.
Our client has not been employed since 9 December 2013 and is in receipt of Centrelink benefits.
We trust this answers your queries and look forward to receiving your determination regarding our client’s entitlements.
On 22 September 2014, K & S Freighters wrote to Dr Poon requesting a:
full copy of clinical notes and the results of any form of test that may have been carried out whilst he has been treated at the Medical Centre.
On 8 October 2014, K & S Freighters wrote to Mr McCarthy’s solicitors, Dwyer Durack, requesting a full and complete copy of clinical notes from Dr Poon and the Bentley Medical Centre in relation to Mr McCarthy for the last five years.
On 15 October 2014, Mr McCarthy’s solicitors, Dwyer Durack, wrote to K & S Freighters confirming that the medical records had been requested from Dr Poon.
On 23 October 2014, Dr Poon certified Mr McCarthy as fit for restricted return to work from 23 October 2014 to 2 February 2015 and he referred Mr McCarthy to Dr Chan.
On 3 November 2014, Mr McCarthy was reviewed by Dr John Low, Consultant Occupational Physician, OccuMed, and Dr Low provided a report dated 23 November 2014.
On 25 November 2014, Mr McCarthy had an MRI of his lumbar spine. In his report, Dr David Price of Perth Radiological Clinic, states:
Comment:
1. Transitional vertebral anatomy with partial sacralisation of L5.
2.Degenerative disc disease at L4/5 with a broad-based disc bulge and left posterolateral annulus fissure. There is no canal stenosis or nerve root compromise at this level.
3. Mild facet arthropathy at L4/5.
On 21 December 2014, Dr John Low Consultant Occupational Physician, OccuMed, provided a supplementary report.
On 25 February 2015, Dr Poon certified Mr McCarthy as fit for restricted return to work from 25 February 2015 to 1 June 2015.
On 26 February 2015, K & S Freighters wrote to Mr McCarthy stating the following:
I enclose a copy of Dr Low’s report dated 23 November 2014 and his supplementary report dated 21 December 2014. You will note that it is Dr Low’s view that your diagnosis is degenerative change in the lumbosacral spine and that the musculoligamentous strain in the lower back suffered as a result of the work incident on 3 May 2012 has fully resolved. I am therefore satisfied that there is no present liability pursuant to s.16 (for medical and like expenses) and s 19 (for weekly compensation) in relation to your claim for compensation. My reasons for this opinion are contained in the attached Statement of Reasons and I respectfully ask that you read the Statement very carefully.
However, prior to making a final decision on your claim, you have the opportunity to provide me with any information or evidence or argument to support your claim for ongoing compensation. Any and all information, evidence or argument provided by you will be considered prior to making my final determination.
Please note that a period of 28 days from the date of this letter is allowed for you to provide your information, evidence or argument. [Emphasis added]
The “Statement of Reasons”, attached to K & Freighters’ letter dated 26 February 2015, states:
Statement of Reasons
Mr Scott McCarthy lodged a claim for compensation in respect of a ligamentous strain to the lower back which was claimed to have been caused on 3 May 2012 when lifting an unlabelled box from a trailer to a pallet.
·Liability was accepted for “musculoligamentous strain lower back” sustained on 3 May 2012.
·Dr Poon who examined you on 3 May 2012 was of the view that you were fit for light duties as of that day. He suggested no forklift driving but that you were fit for administrative work.
·In a medical certificate dated 22 November 2013 Dr Poon certified you fit for restricted duties 7 hours per day, 5 days per week from 22 November 2013 to 20 January 2014.
·Following a number of warnings in relation to excessive absenteeism and failure to notify your employer of your absences, employment with K & S freighters was terminated on 9 December 2013.
·You attended Dr John Caldow of the same practice as Dr Poon on 9 December 2013. You advised him that you had “back pain” due to a “recent exacerbation preventing work” and Dr Caldow issued a certificate on 9 December 2013 certifying you totally unfit for work from 9 December 2012 to 16 December 2013.
·Dr John Low, Consultant Occupational Physician, examined you and reported on 23 November 2014. He also provided a supplementary report of 21 December 2014. He had access to the last five years of clinical records from your treating medical practitioners (Dr Paul Poon and Dr John Caldow at Bentley Medical Centre). Dr Low said that you have known degenerative spine disease including the lumbar and cervical spine as identified on radiology. His diagnosis was degenerative change in the lumbosacral spine. It was his view that the musculoligamentous strain in the lower back/lumbar spine at L4/5 had fully resolved. He was also of the view that you are fit to engage in a return to work program and require no further treatment in respect of the compensable condition.
Conclusion
In order for compensation to continue to be payable I must be satisfied, on the balance of probabilities as distinct from possibilities, that your compensable injury, namely “musculoligamentous strain lower back” sustained on 3 May 2012 continues to incapacitate you for work and still requires medical treatment.
Having regard to all the evidence and relying on the medical reports of Dr John Low I am satisfied that your compensable injury, namely “musculoligamentous strain lower back” sustained on 3 May 2012 has resolved and that on and from 23 November 2014 and as at the present time that condition no longer incapacitates you for employment or requires medical treatment. I am accordingly satisfied that there is no present liability as at 23 November 2014 to date and as at the present time to pay you compensation under s.16 and s.19 of the Safety, Rehabilitation & Compensation Act 1988.
On 1 April 2015, K & S Freighters made the following “Determination”:
Determination
In light of all of the available evidence, medical and other, including the specialist medical evidence of Dr John Low, I am satisfied that Mr Scott McCarthy no longer suffers with the effects of “musculoligamentous strain lower back” which arose out of or in the course of his employment on 03/05/2012.
As such I am satisfied that your compensable injury, namely “musculoligamentous strain lower back” sustained on 03/05/2012 has resolved and that on and from 23 November 2014 and as at the present time that condition no longer incapacitates you for employment or required medical treatment. I am accordingly satisfied that there is no present liability as at 23 November 2014 to date and as at the present time to pay you compensation under s.16 and s.19 of the Safety, rehabilitation & Compensation Act 1988.
Reasons
The reasons for the decision were contained in the Statement of reasons enclosed with the letter dated 26/02/2015 and as such I will not repeat them in this letter.
I further note that no additional information, evidence or argument was provided to challenge the specialist medical opinion of Dr John Low. (Determination)
On 7 April 2015, Mr McCarthy requested a reconsideration of the Determination.
On 8 April 2015, K & S Freighters made the following decision:
I refer to your claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 in respect of “muscouloligamentous strain lower back” sustained on 3/5/2012.
I also refer to your correspondence dated 7/4/2015 requesting a reconsideration of the determination dated 1/4/2015 which stated in part:
……..
I now make, in accordance with provisions of Section 62 of the Safety, rehabilitation and Compensation Act 1988, a reviewable decision affirming the determination dated 1/4/2015.
………
Findings
……..
4.As such, I am satisfied that there is no present liability as at 23 November 2014 to pay compensation to Mr Scott McCarthy in respect of “musculoligamentous strain lower back” under Section 16 and Section 19 of the Safety, Rehabilitation & Compensation Act 1988. (Decision)
On 9 April 2015, Mr McCarthy applied to the Tribunal for a review of the Decision.
On 19 May 2015, Mr McCarthy was examined by Mr Barrie Slinger, Orthopaedic Surgeon, and on 25 May 2015, Mr Slinger provided a report.
On 3 July 2015, Dr Poon certified Mr McCarthy as fit for restricted return to work from 1 June 2015 to 1 December 2015.
On 3 September 2015, Mr McCarthy was examined by Dr Hardcastle, Orthopaedic Surgeon, and on 4 September 2015, Dr Hardcastle provided a report.
On 17 December 2015, Dr Poon certified Mr McCarthy as fit for restricted return to work from 1 July 2015 to 1 June 2016.
Under cover of a letter dated 3 March 2016, K & S Freighters filed and served the following surveillance evidence in relation to this application:
1.Reports of Verifact, dated 1 June 2013, 3 August 2013, 25 August 2013 and 23 September 2013.
2.Reports of LS Partners, dated 17 October 2014 and 7 October 2015.
3. Verifact – Surveillance DVD – 56 minutes.
4. Verifact – Surveillance DVD – 2 minutes.
5.LS Partners – Surveillance [17] September 2014, 60 minutes (3 DVDs).
6.LS Partners – Surveillance DVD September 2015 (approx. 23. Minutes).
On 17 March 2016, Dr Hardcastle provided a further report, having reviewed all of the DVD surveillance footage of Mr McCarthy taken between 17 October 2014 and 17 October 2015.
On 5 May 2016, Dr Low provided a further report having reviewed the DVD surveillance footage of Mr McCarthy provided by K & S Freighters in these proceedings.
issues
At issue in these proceedings is whether K & S Freighters has present liability as at 23 November 2014 to:
pay to or on behalf of Mr McCarthy medical and like expenses pursuant to s 16 of the SRC Act; and
pay Mr McCarthy weekly compensation payments pursuant to s 19 of the SRC Act,
in respect of his “musculoligamentous strain lower back” injury sustained on 3 May 2012.
MEDICAL & OTHER evidence
Medical evidence
Dr Steven Overmeire, Consultant Occupational Physician, OSHGROUP, report dated 28 February 2012[1]
[1] Exhibit 3 at pp 59-65.
Dr Steven Overmeire, Consultant Occupational Physician, OSHGROUP, examined Mr McCarthy on 20 August 2012 and provided a report dated 28 August 2012.
In his report dated 28 August 2012, Dr Overmeire said the following in relation to Mr McCarthy:
Current Work Status
He currently works 8 hours per day, 5 days per week in back loading role. He describes it as office work with little manual handling. He said that he is keen to resume forklift driving, for which he has recently been declared fit at 2 hours per day.
…………..
Investigations
Lumbar spine CT scan on 22 May 2012 showed “Appearances suggest transitional vertebrae, with partial sacralisation of L5 and a small rudimentary L5/S1 disc. Mild L 4/5 disc height loss with a shallow broad-based left paracentral and foraminal disc bulge. This extends posteriorly to indent upon the anterior aspect of the thecal sac, and may contact the forming left L5 nerve root. This may account for the patient’s left leg radiculopathy. Bridging degenerative osteophyte formation seen as the anterior aspect of the left sacroiliac joint”.
Summary and Assessment
Mr McCarthy is a 39-year old forklift driver with resolving mechanical low back pain, 3 months after a reported heavy manual handling incident at work. He has a degenerative L4/5 disc protrusion and left sacroiliac joint degeneration. There is an historical suggestion of initial left L% radicular pain, but there is no current evidence of sciatic nerve involvement or radiculopathy. He reports an ongoing improvement in symptoms with restricted work duties and physiotherapy treatment.
…………..
The main finding that points to a potential negative prognosis is the presence of L4/5 disc and left sacroiliac joint degeneration. Whilst this degeneration predates the reported workplace incident, it can be a source of future low back pain. It is possible that this will ultimately interfere with his pre-injury role, but at this stage, I consider him on track to regain his full pre-injury level of back functioning.
………….
At this stage, the prognosis for Mr McCarthy to resume his pre-injury role as a forklift driver is favourable. Notwithstanding the presence of L4/5 disc and left sacroiliac joint degeneration, it is my opinion that his spinal strength and functioning can be restored to meet his pre-injury occupational requirements. He may, however, experience intermittent low back pain and future aggravations cannot be ruled out. At this stage, I would agree with maintaining a rehabilitation goal of full pre-injury duties, which should be achievable within 3 months.
……………
I have no reason to disagree with the proposed return to work, as outlined in Suitable Duties Plan #4. However, I would recommend that some flexibility is incorporate into this plan, so that any potential setbacks or future aggravations could be accommodated. Nevertheless, at that stage I consider him on track to resume full pre-injury duties within 3 months, as outlined in the Return to Work Plan.
…………….
I consider him fit to undertake a graded return to forklift driving.
……………
At this stage, I consider it unlikely that he will require permanent restrictions, other than a maximum manual handling limit of 20kg.
…………..
The current prolonged episode of low back pain, combined with L4/5 disc and left sacroiliac joint degeneration, increase Mr McCarthy’s risk of recurrent low back pain or future aggravations. Whilst exercise rehabilitation should significantly reduce this risk, it cannot be completely removed……
Dr Steven Overmeire Consultant Occupational Physician, OSHGROUP, report dated 6 March 2013[2]
[2] Exhibit 3 at pp 97-102.
Dr Overmeire re-examined Mr McCarthy on 20 February 2013 and, on 6 March 2013, provided a further report.
In his report dated 6 March 2013, Dr Overmeire noted the following:
Progress Since Last Assessment
Mr McCarthy reports an overall improvement in low back pain…….
He upgraded to 10 hours per day at work. He said that [he] worked in the “sticker shed”, where he labelled freight with stickers. He said that it involved a combination of seated work and walking, but no manual handling or bending. Whilst he said that he managed these duties, he complained of “bullying” from one of his supervisors. He said that he felt "singled out” by this supervisor, whom he finds physically intimidating.
He continued to report difficulty sleeping due to low back pain, which was often worse at the end of the day. He denied, however, using alcohol to help him sleep. He said that his general practitioner placed him on Endep, but he could not tolerate it due to a reported “bad tum”. He said that he was subsequently placed on the anti-depressant medication fluoxetine.
In view of reported depressive symptoms, which he related to low back pain and alleged bullying at work, Mr McCarthy was referred for psychological counselling. He said that he has met the psychologist on one occasion so far. In January 2013, he was declared unfit for work due to reported depression. He was referred for psychiatric assessment, but I note that he missed this appointment.
……………
Current Symptoms
He reports a constant low back ache that is predominantly left-sided. It no longer radiates to the left buttock or leg. It is aggravated by prolonged or repetitive movements, including bending and twisting, though he does manage occasional bending and twisting without aggravation.
He reports low back stiffness in the morning and after prolonged sitting. He reports a sitting tolerance of 1-1 ½ hours. He reports an unlimited walking tolerance. Mr McCarthy reports feeling comfortable lifting up to 10kg.
He continues to report of difficulty sleeping due to low back pain.
…………..
The incident of 3 May 2012, as described by Mr McCarthy, is consistent with an acute strain injury to the lumbosacral spine. He does have pre-existing L4/5 disc and left sacroiliac joint degeneration. On balance, I would consider the incident of 3 May a significant contributing factor, given that it led to an acute onset of low back symptoms.
…………..
Given his persisting reported symptoms, I do not yet consider the injury fully resolved. I would expect him to reach maximum medical improvement in 3 months’ time.
…………..
I would recommend the following permanent restrictions:
·Avoid repetitive or sustained bending and twisting.
·Maximum lifting limit of 15kg in the long term.
·Avoid sitting longer than 1 hour without a postural break.
………….
These restrictions apply permanently, given the degenerative component to his low back pain. [Emphasis added]
Mr Arul Bala, Consultant Neurosurgeon, report dated 15 July 2014[3]
[3] Exhibit 14.
In a report to Dr Poon, dated 15 July 2014, Mr Arul Bala, Consultant Neurosurgeon, stated the following:
I met with Scott today who lives with a friend who is afflicted with multiple sclerosis. Scott lifted an 80kg box some time ago resulting in a work related injury and he has not worked since. He still remains somewhat active and he fixes trailers etc. He smokes. He also has a background history of depression……..
………I have organised a MRI of the cervical spine. I have seen his CT cervical spine which was done at PRC and if anything there is a broad based significant disc at right C4/5 which cannot explain his current symptoms. In any case, my thoughts are for conservative management given the lack of substantial pain. [Emphasis added]
Dr John Low, Occupational Physician, OccuMed, report dated 23 November 2014[4]
[4] Exhibit 3 at pp 171-180.
Dr John Low, Occupational Physician, OccuMed, examined Mr McCarthy on 3 and 4 November 2014 and provided a report dated 23 November 2014. As an Occupational Physician Dr Low is trained and specialises in workplace rehabilitation.
In his report dated 23 November 2014, Dr Low states the following:
Examination Findings
………….
He walked normally and was able to sit and move without any obvious signs of restriction during the history and examination.
On examination of the lower back, there was moderate restriction in forward flexion but he was able to forward flex with his fingertips touching the knees. Lower back extension was moderate to severely restricted. He also complained of discomfort and demonstrated restriction in left rotation. He complained of discomfort in end range lateral flexion to both sides. He complained of pain with just about all movements, worst in extension.
He was tender maximally at the L5 and S1 spinous processes as well as the L5/S1 facet joint on both sides.
He was able to walk on heels and tiptoes without any obvious signs of weakness. Slump test for nerve root entrapment was negative in both lower limbs and he was able to straight leg raise to 80 [degrees] bilaterally.
Waddell’s signs for non-organic contribution to his current complaints were not convincingly positive.
…………..
Assessment
………….
The mechanism of injury described indicates that he took the weight, which he thought he could handle after testing it, momentarily in an upright position. This would impose limited biomechanical load to his lower back despite the weight.
He reported developing low back pain as a result and has been off work or on restricted duties since then.
Employment ceased in either September or December 2013.
The information obtained indicates that Mr McCarthy was not prescribed medication related to his back after 9 December 2013. The next time he was prescribed medication related to his back was on 13 June 2014. In between times, only on 10 March 2014, there was mention of a left L5 ache but he was able to flex his lower back, toughing the distal tibia which is much more than he can do today.
He has known degenerative spine disease including the lumbar as well as cervical spine as identified on radiology.
…………
There was no clinical evidence of nerve root impingement.
…………
4.What is your current diagnosis and recommended treatment plan?
The current diagnosis is degenerative change of the lumbosacral spine.
He requires a water-based exercise programme to increase his functional capacity and activity tolerance.
5.In your opinion has the “musculo- ligamentous strain lower back/lumbar spine L4/5” fully resolved”?
I believe that the musculo-ligamentous strain in the lower back/lumbar spine at L4/5 has fully recovered. The mechanism of injury described involved mild momentary loading of the lower back. The effects of this activity would have resolved by this point in time; some two and a half years post-precipitating event. Nevertheless, he does have significant degenerative changes which are most likely predominant cause of ongoing symptoms.
…………..
There are several factors which are adversely affecting Mr McCarthy’s presentation of pain and disability in addition to the pre-existing degenerative change of the spine. These psychosocial factors include:
·Prolonged period of time away from work. It had been shown that the longer a person is away from work, the harder it is for them to ever return to work.
·Self-reporting of unsupportive work environment.
·Depression and likely contribution of social and personal stressors.
·History of being unreliable including attendance at work and unreliability in terms of attendance to appointments such as the clinical psychologist, etc (please see the referral documents for further details).
Given minimal contact and prescription requirements between December [2013] and June 2014, the mechanism of injury described and the forces likely to be involved which is reasonably limited, the expected natural progress of a strain or injury sustained in the manner described, the record of his range of motion in March 2014, I believe that Mr McCarthy’s functional capacity is actually more than he says.
Nevertheless, he does have significant degenerative change of his lumbosacral spine, which together with his subjective complaints, would make him a risk in the workplace if he was to return to his pre-injury duties as a forklift driver (as described).
…………….
It is unlikely that he will make further improvement and return to his pre-injury duties without further complaints of pain and dysfunction if he was made to do so within the claim.
……………
Given his subjective complaints and the known degenerative changes of the lower back, I suggest the following restrictions to limit the load on the lower back:
·Maximum weight of occasional lifting on 10kgs (between thigh and chest height with the load close to the body only).
·No forceful pushing and pulling activity.
·Vary standing, sitting, walking as required.
·No recurrent twisting, turning, leaning, bending or stooping.
·No exposure to whole body vibration or jarring of the spine.
Given the progress to date, for all intents and purposes, he requires these restrictions on a permanent basis.
Dr John Low, Occupational Physician, supplementary report, dated 21 December 2014[5]
[5] Exhibit 3 at pp 202-214.
Dr Low provided a supplementary report dated 21 December 2014.
In his report dated 21 December 2014, Dr Low said:
The current diagnosis is degenerative change of the lumbosacral spine.
I believe that the musculo-ligamentous strain of the lower back/lumbar spine at L4/5 level, suffered as the result of the work incident on 3 May 2012 has fully resolved. The mechanism of injury described involved mild momentary loading of the lower back. The effects of this activity would have resolved by this point in time; some two and a half years post-precipitating event. Nevertheless, he does have significant degenerative changes which are most likely the predominant cause of his ongoing symptoms.
The expected natural progress of the degenerative change is one of very gradual; deterioration over time.
……………
Capacity
7. Is the claimant still totally incapacitated for employment?.......
I do not believe that he is totally incapacitated for employment.
8.If the employee is not totally incapacitated for employment?, does the employee currently have capacity to engage in any work?........
He is fit to engage in a return to work program.
Given his subjective complaints and the known degenerative changes in the lower back, I suggest the following restrictions to limit the load on the lower back:
·Maximum weight of occasional lifting of 10kg (between thigh and chest height with the load close to the body only).
·No forceful pushing or pulling activity.
·Vary standing, sitting, walking as required.
·No recurrent twisting, turning, leaning, bending or stooping.
·No exposure to whole body vibration or jarring of the spine.
…………
It is unlikely that he will make further improvement and return to his pre-injury duties without further complaints of pain and dysfunction if he is made to do so within the claim.
………..
He does not require any further treatment specifically for the resolved musculoligamentous strain.
………..
He requires a water-based exercise programme to increase his functional capacity and activity tolerance for the degenerative condition.
Mr Barry Slinger, Orthopaedic Surgeon, report dated 25 May 2015[6]
[6] Exhibit 9.
Mr Barry Slinger, Orthopaedic Surgeon, examined Mr McCarthy on 19 May 2015 and provided a report dated 25 May 2015.
In his report dated 25 May 2015, Mr Slinger states:
Examination
……..
In the lumbar spine tenderness was present at L5/S1 to either side of the mid line, there was no muscle spasm and no asymmetry. Movements were essentially full, with discomfort, however, at all extremes, and as he indicated, he had no problem with flexibility, but suffered pain performing those movements, particularly at the end points.
Straight leg raising was not limited, deep tendon reflexes were present and symmetrical, there was no sensory impairment or weakness in either lower limb, gait was normal, and he moved quickly on and off the couch.
………...
4. What is your diagnosis to account for our client’s symptoms?
The diagnosis is that of degenerative disc disease, rendered symptomatic by the soft tissue injury of May 2012.
In the absence of that injury he would not be in his present situation and may well have continued asymptomatic indefinitely.
5. What further investigations do you recommend (if any)?.
I do not recommend any further investigations.
6. What is the prognosis?
The prognosis is that his present symptoms will continue, unless some change can be effected by treatment.
………..
7. To what do you attribute our client’s reported symptoms?
……….
Your client would not be in his present situation if not for the work accident of 3 May 2012.
8.Do you consider our client is currently unfit for his pre-accident duties?
Your client is unfit for his pre-accident duties.
9.Do you consider our client is currently fit for modified or restricted duties?…….
Your client is fit for modified restricted duties, which would avoid any heavy lifting or repetitive bending, with a lifting tolerance of 5-10kgs, he is computer literate and would be capable of working in an office capacity, or in reception, as a supervisor, in customer service, retail sales, and ideally working in a situation which would allow him to sit or stand at discretion.
Such work should commence with a part-time programme of three hours a day, four to five days a week, increasing those hours as symptoms allow, and I would agree that he would benefit by vocational rehabilitation, at least vocational guidance as to the type of employment in which he would be particularly suitable.
Dr Philip Hardcastle, Consultant Orthopaedic Surgeon, report dated 4 September 2015[7]
[7] Exhibit 15.
Dr Philip Hardcastle, Consultant Orthopaedic Surgeon, examined Mr McCarthy on 3 September 2015 and provided a report dated 4 September 2015.
In his report dated 4 September 2015, Dr Hardcastle states the following:
STATUS AT PRESENT
Mr McCarthy reports that the symptoms are variable and two weeks ago he had quite severe pain for three days before it went back to its “normal pain”. He is not sure of the reasons for this increased pain and thought it may have been the way he slept.
He said he has restricted his activities though he is still maintaining a reasonable level of functional activity. Generally there is stiffness and pain in the morning and he can wake regularly at night.
Aggravating factors include lifting for which he can manage 5kg from the ground and possibly up to 10kg from waist height with sitting and standing in one position being the main aggravating factors apart from lifting and he is better when he is moving around.
…………
His right leg gives him intermittent symptoms but not every day and they can come on without any specific cause. The pain can be a sharp shooting one for one or two seconds and he also gets a numb like sensation in the leg at times which can last two or three hours.
………….
OPINION
The history as reported is consistent with a strain type injury to the lower back. The initial pain was quite severe and seemed to settle down reviewing all the enclosed reports and since then, Mr McCarthy has had persistent protracted symptoms to a variable extent.
My recommendation for further treatment would be to consider a diagnostic and treatment facet injection at the lowest mobile segment at L4/5 directly above the assimilated vertebra bilaterally and to look at returning to work in a position that restricts lifting to certainly less than 15kg.
This could include either one of the more sedentary occupations where he has been doing some training in accountancy or alternatively truck driving or store work and I would expect him to be able to manage this on a full time basis.
………..
7.1 Your Diagnosis
Mechanical low back pain most likely from the L4/5 posterior elements (leg pain is referred).
7.2 Your prognosis
…………
I would expect that he does have the potential for some ongoing intermittent long term protracted mechanical pain but he should be able to maintain a good level of function.
…………
7.3Is there evidence of a pre-existing or previously occurring back condition, prior to 3 May 2012?
There is a pre-existing congenital anomaly with the assimilation of L5-S1 which does potentially put a little more pressure on the L4/5 level over a long period of time……
7.4 What was the injury which occurred on 3 May 2012?
He was taking a relatively heavy weight which resulted in a sudden leaning forward. It is probable that he had a strain injury either to the posterior intervertebral disc or the facet joint, taking into account his history and the enclosed medical information.
7.5 Has that injury and its effect ceased? If so, when?
It is certainly possible that the effects of the injury resolved over six to perhaps even a 12 month period given the nature of the injury and his radiology. However he reports that the symptoms have persisted and have been protracted. In the absence of any pre-existing symptoms one has to accept his veracity and that the ongoing symptoms still stem from the work injury, appreciating that the degenerative condition as demonstrated on the radiological investigations is playing a part in the current propagation of these symptoms.
……..
It is not my opinion that he is incapacitated and even at the time of redundancy, from the history provided, he would have been able to continue with alternate duties.
……..
It is not my opinion that he is incapacitated except there are restrictions with reducing his capacity for heavy manual work which is a combination of the pre-existing problems and the work injury of 3 May 2012.
……..
He would have the capacity to do normal hours.
……………
I would restrict lifting to around the 15kg mark depending on its location being on the ground or waist height. From ground I would reduce this 15kg and waist height if he could lift it close to his body and he did not have to carry it very far probably up to about 20kg.
He should avoid activities involving working with his spine in a flexed position or repetitive bending being the main restrictions.
…………..
In my opinion, he is unfit for his normal pre-injury duties.
Dr Philip Hardcastle, Consultant Orthopaedic Surgeon, supplementary report, dated 17 March 2016[8]
[8] Exhibit 16.
Dr Hardcastle provided a further report, dated 17 March 2016, having reviewed the DVD surveillance footage of Mr McCarthy taken between 17 October 2014 and 17 October 2015.
In his report dated 17 March 2016, Dr Hardcastle states the following:
1.Does the surveillance material enclosed alter the opinions expressed by you in your report dated 4 September 2015?
It does not specifically alter my opinion.
……….
2.1 the Applicant’s ability to carry out his pre-injury duties;
These activities that he was seen doing do show him being quite functional, involved in a number of specific tasks which involve repetitive bending and movements including cleaning out a boat and trailer as well as doing non-insignificant maintenance and cleaning which appear to be mechanical duties and painting of a trailer and gardening activities with a spray gun. However, I did not see him doing any specific heavy lifting in any of the sequences and would consider that he still potentially has a lifting restriction which I would estimate around 15 to perhaps 20 kg.
Reviewing my overall assessment from September 2015 and taking into account these activities, noting that he did have some calluses on his hands at the time of my review (not that the latter is specifically important with lifting), but taking into account his radiology in particular together with my clinical findings, a 10 to 15kg lifting restriction would not be unreasonable.
…………
I would be of the opinion that he would have been fit for alternate duties when he was terminated from the information provided and this encompasses a wide spectrum of different possible occupations.
………..
In my opinion, he would be fit for alternate duties on his pre-injury hours.
Dr John Low, Occupational Physician, OccuMED, report dated 5 May 2016[9]
[9] Exhibit 8.
Dr Low provided a further report, dated 5 May 2016, having reviewed the DVD surveillance footage of Mr McCarthy.
In his report, dated 5 May 2016, Dr Low states:
Assessment
The subject of the DVD surveillance footage demonstrated the ability to undertake activity which was biomechanically demanding on the lower back on a recurrent and sustained basis. The activities demonstrated on the DVD surveillance footage are incompatible with the presence of a low back injury.
……….
1.Does the surveillance material enclosed alter the opinions expressed by you in your report dated 23 November 2014 and 28 November 2014?
The DVD surveillance footage confirms my opinion that the subject does not suffer from a work related injury to his lower back.
The DVD surveillance footage does indicate that non-physical factors are the most significant cause to his presentation of pain and disability.
It does not change my opinion regarding his work capacity. I now believe he is fully fit to return to all forms of employment in terms of his lower back. Specifically, I believe that he is fit to return to work as a forklift operator unrestricted.
…………
Based on history, examination and investigation findings, the expected natural progress of the condition as detailed above, and observations on the DVD surveillance footage which indicate the subject’s ability to be able to undertake recurrent or sustained activity which involve significant loading of the lower back, I believe:
The subject is fit to carry out all his preinjury duties.
The subject is fit to work his full preinjury hours.
I believe that he was fit to carry out his pre-injury duties on his full preinjury hours by September 2014.
………..
By September 2014, he did not require any further treatment. [Emphasis added]
Oral evidence of Dr Low
In relation to his second report, dated 21 December 2014, Dr Low states:
By that stage, when I saw him, he didn’t have neurological signs of nerve entrapment and it was more than two years since the injury and given my experience I expected natural progress. I would have expected him to have fully resolved by 12 months, so its’ two years down the track, and the only thing I could think of that could be causing his problems was the pre-existing degenerative change but the pre-existing degenerative change doesn’t have to be symptomatic all the time but in this particular case I couldn’t think of anything else that could be [causing] it. So, I came to the conclusion, based on the mechanism, of injury, the expected natural progress of the condition, and the presence of the degenerative change, that is most likely not related to precipitating pain.
In relation to the DVD surveillance footage taken of Mr McCarthy on 17 September 2014, Dr Low states:
Well this footage…..it really did show that he was able to undertake activity which did pose significant load to his lower back. So, he did undertake sustained and repetitive back bending, leaning and working in awkward positions and it was sustained. It was for several hours. The footage lasted about seven minutes itself and you wouldn’t expect any[one] with any degree of back problem, or even a back strain, to be able to do that.
……….
…..this video……with him…..operating the pressure cleaner and cleaning the car, bending into the bonnet of the car, leaning – look, I mean that was a short period, it was intermittent, it wasn’t sustained, it wasn’t – I mean, you know, there’s not enough for me to say that he could work, but this is very different. He was actually doing a task that he didn’t really have to do. I mean he was fixing a – he was fixing up a trailer, that was after repetitively bending in his boat on the same day. The work was sustained, it was awkward, he was angle grinding.
……….
………it was recurrent, sustained, repetitive bending, working in an awkward position, working at lower heights. There was no restriction, he walked smoothly, he was able to run to grab his phone, you know. To me if a person can do that, that person does not have a back injury. And if the person doesn’t have a back injury, chances are that they will be able to do their full job, so that’s how I extrapolated it.
………..
…….And I did say right at the beginning I think he’s actually more functional than he says he is, and, you know, and I only put the restrictions on there because of his subjective complaints and the pre-exiting degenerative change doesn’t have to be symptomatic, but he says he was in pain and he had disfunction, and whatever he h did he was sore. This was clearly not the case in this surveillance.
……….if he did have problem, I would have seen a progressive deterioration in his function over time, so he was just as agile at the end as he was at the beginning. So even though it’s a possibility, he knew if – if that’s the case, he would have known he was going to suffer this pain and I don’t think he would have been doing it, or he would have been doing it in a more thoughtful manner. Because he was working in an awkward position, he was – you know, sustained bending, leaning, stooping.
……….
I did think he was more functional than he said he was, and this video did show that he was more functional than what he said he was.
……..if he was in pain, and to the point he required painkillers, he wouldn’t be doing what he was doing.
Dr Low said that, in his view, Mr McCarthy was fit to carry out his pre-injury duties at least from 17 September 2014, when the DVD surveillance footage was taken.
Oral evidence of Dr Slinger
In his oral evidence at the hearing, Dr Slinger made the following comments regarding the DVD surveillance footage of Mr McCarthy taken on 17 September 2014:
……the surveillance video I saw was something of the order of two hours. He doesn’t do anything terribly heavy or physical. The most physical [thing] he does is lift a car tyre, which I estimate would be about 10 kilograms, and the rest of the time he is doing light activities. It doesn’t say he hasn’t got pain, it doesn’t say he has got pain; what it does show is that for a short period of time he is able to do essentially light activities, which is what I said in my report, that he was fit to return to – to light duties when I saw him.
………..
Well, they [i.e. his movements] are not repetitive. He does bend occasionally. He does sit on the ground. He doesn’t do any heavy lifting. Twisting is minimal. I don’t believe lying on the ground has anything to do with function of the back. He is painting the trailer. He is using his arm. Pumping up the trailer, he is using his arm. There is not a whole lot of repetitive movements as such. I mean, he does bend from time to time. He does sit from time to time. It just suggests to me that this is a man who may or may not have back pain. I can’t tell from that. All I can say is he is capable of doing those activities for a short period of time.
Oral evidence of Mr Hardcastle
In his oral evidence at the hearing, Mr Hardcastle made the following comments regarding the DVD surveillance footage of Mr McCarthy taken on 17 September 2014:
…….from the information he provided me, I wouldn’t specifically have expected [him] to necessarily be doing those duties but it has to be taken into account too that I didn’t actually ask him, “Did you get in the boat and clean it out?....” when we’re doing these assessments we’re – it is a little bit like putting a puzzle together. We’re taking pieces and putting them all in and it’s just once piece of the puzzle. It doesn’t look good – it does question his veracity and that does suggest that maybe he’s a lot more active than he’s letting his medical practitioner’s know. That certainly could well be the situation. I’m not going to be the judge and jury on that. What concerned me more was the way he did and the amount of time he spent with his back fully flexed and doing work – he was putting himself at more risk of getting problems and so if I was treating him as his consultant, I would go through that video with him and sit down and restructure the way he did things because those things and the position that he had his back in could well be more likely to cause ongoing chronic problems in relation to his L4,5 disc in particular in his situation.
Other evidence
Mr McCarthy’s evidence
Mr McCarthy provided two witness statements, dated 27 May 2015 and 28 April 2016, respectively.
In his witness statement, dated 27 May 2015[10], Mr McCarthy states:
46.Prior to the incident at work I did not experience back pain that I now experience and I was fully capable of undertaking my work.
47.It is correct that I had some issues with depression. That occurred back in 2000 and 2001 when my relationship ceased. I received treatment for those symptoms at the time and the medication I was on for depression was ceased at least ten years previously.
48.My symptoms of depression recurred during the period I was undertaking restricted duties. I felt that because I was on restricted duties and hours that I was singled out at work. The situation was so bad that I approached my Union for assistance and on 16 January 2013 I met with Ms K Evans and my Union representative.
49.I felt I was being treated in a poor manner by my employer because I had been placed on restricted duties……
50.My Employment with K & S Freighters was terminated on 9 December 2013.
51.As at 25 February 2015 the restricted hours and weight restriction of 5 hours per day 3 days per week with a lifting restriction of 5kgs remain in place.
52.By letter dated 26 February 2015 I was advised by the employer that based on Dr Lows’ opinion it was ceasing my entitlement to compensation.
[10] Exhibit 1.
In his supplementary witness statement, dated 28 April 2016[11], Mr McCarthy states:
[11] Exhibit 2.
9.K&S Freighters terminated my employment because of my absences from work, and didn’t understand that I was absent from work because of the pain in my back firstly from the injury, and secondly because the return to work program was not adhered to or recognised – and I couldn’t cope.
10.The return to work program played a huge role in the termination of my employment.
11.The program was unprofessional and inadequate because it didn’t involve duties suitable for the physical condition of my back and made it worse, if anything.
………….
15.The whole attempt at a return to work was pathetic because of the attitudes that K&S Freighters took, and also because WorkFocus had no idea what I was being asked to do at work, and were not prepared to attend my workplace to find out what it was like.
………….
17.Due to the determination made by my employer, I have been unable to arrange another return to work program.
18. I have not done any work since 9 December 2013.
Vocational Evaluation Report by Mr Michael Parry, Registered Psychologist, dated 18 April 2016[12]
[12] Exhibit 7.
Mr Michael Parry, Registered Psychologist, is a Director of “Freshstart Injury Management”, a vocational rehabilitation provider agency which is accredited with WorkCover Western Australia and Medicare. Mr Parry undertook a vocational assessment of Mr McCarthy on 8 April 2016 and, on 18 April 2016, provided a 98 page “Vocational Evaluation Report”.
In his report dated 18 April 2016, Mr Parry states:
Mr McCarthy advised that he has not worked since 9 December 2013. Mr McCarthy advised he is currently unemployed and on Newstart payments. He has not been in the workplace since the cessation of the Return to Work Programme.
Mr McCarthy advised in the period since ceasing the Return to Work Programme he had applied for “4-5 jobs a week up”. This was for a range of physically oriented, office based, and warehouse duties. Mr McCarthy advised he has attained a number of job interviews but attributed “any discussion about my back” to not getting any jobs. He also felt he didn’t have the experience for any clerical jobs.
……….
……….Mr McCarthy’s skillset is predominantly related to relatively unskilled and physically oriented occupations, which require a sound level of physical fitness and competence. There appears a significant gap between Mr McCarthy’s reported current condition, symptoms and restrictions, also taking into account the above information from the medical reports provided, and the criteria required to be met to be job competitive and competent in the role of Truck Driver, Forklift Operator/Store Person, Labourer or Kitchen Hand on a durable basis. This would suggest that a New Employer/New Duties type job role is appropriate.
Essentially Mr McCarthy will need to apply for suitable roles and be viewed as the best applicant for advertised positions. This looks likely to require to be in an alternative employment stream. However it is evidence Mr McCarthy would face a range of additional and significantly regarded negative cluster of barriers if he is to be considered job competitive and competent to obtain and maintain alternative or in fact any employment….
………..
Please be advised of the following information relating to job options considered by this evaluation. This will include the following preinjury type roles:
·Truck driver
·Forklift Operator/Store Person
·Labourer
·Kitchen Hand
Given Mr McCarthy’s nature of injury, and his employment and educational history, the following additional New Employer/New Duties type job goals were considered as part of this evaluation:
·Administrative Assistant
·Purchasing Officer
·Property Manager
In his report, Mr Parry identified at least three jobs that may be appropriate for Mr McCarthy, being an administrative assistant, a purchasing officer and a property manager, but stated that each would require some training.
In his oral evidence, Mr Parry stated that he considered that Mr McCarthy required vocational rehabilitation assistance and, further, that:
In the literature I’ve seen there is a lot of mention of him being unable to return to the pre-injury occupation, which would indicate in the hierarchy of what we need to look at, that would mean that if there’s no return to same employers, same duties, the next goal is same employer, modified duties, then we go to, there’s a new employer, same duties and a new employer, new duties. It appears from the literature that he needs to be dedicated to a new employer, new duties goal……..Vocational rehab is designed there to bridge the gap between a skillset and a physical work capacity and being employable. If the man needs a new employer, new duties goal, he needs a lot more services dedicated towards him. This will include retraining and on the job training. So he’s got some qualifications there, and I think that’s – that would be the move in the direction that he should be going in. It’s difficult to see from the literature why a manually based occupation would be durable, and under our requirements we need to identify durable employment.
Surveillance material
Verifact provided four surveillance reports to K & S Freighters, dated 1 June 2013, 3 August 2013, 25 August 2013 and 23 September 2013, respectively, as well as DVD surveillance footage (from Sunday 30 June 2013 and 4 July 2013) which is 56 minutes long[13] and DVD surveillance footage which is 2 minutes long.
[13] Exhibit 5.
Verifact’s report, dated 1 June 2013, states:
Summary of Total Activity:
Surveillance was conducted over three days encompassing a Friday and a weekend. We observed the Claimant active on several occasions throughout this period of surveillance and we captured a total of 56 minutes of video. Total accounts of activity and captured video depicts the following:
·Presumed claimant was sighted at the front of the given address.
·Resumed Claimant used a high pressure washer to clean carpets and vehicle on the front lawn of the property.
·Departed the area on foot and was lost.
Verifact’s report, dated 3 August 2013, states:
Summary of Total Activity:
Surveillance was conducted over two days and we observed the Claimant active on two occasions throughout these observations. We were provided with the opportunity to capture approximately 2 minutes of video. The Claimant was observed to engage in the following activity:
·Left his home address on a bike and rode up to the operative’s location and knocked on the operative’s door.
·Used public transport to travel from his home address to Hollywood Hospital.
Verifact’s report, dated 25 August 2013, states:
Summary of Total Activity:
Surveillance was conducted over three days encompassing a weekend and one weekday. During our period of observations at the given address the Claimant remained unsighted.
Verifact’s report, dated 23 September 2013, states:
Summary of Total Activity:
Surveillance was conducted over four days encompassing weekdays and weekends. During our period of observations at the given address the Claimant remained unsighted.
LS Partners provided two surveillance reports, dated 17 October 2014 and 7 October 2015, respectively, and DVD surveillance footage (from 17 September 2014) which is 60 minutes long (3 DVDs)[14] and DVD surveillance footage (from September 2015) which is approximately 23 minutes long.
[14] Exhibit 6.
LS Partners’ report, dated 17 October 2014[15], states:
[15] Exhibit 12.
…….We have conducted 52 hours of surveillance and obtained approximately 2.25 hours of video footage.
The Subject was observed working on a boat for approximately 60 minutes, bending at the waist, crouching down, jumping up and down off a boat, tying and untying ropes, removing and loading items into and out of a boat, playing with a dog, jumping over a fence, working on a boat trailer for approximately five hours, laying on the ground and running.
The Subject did not appear to be wearing any medical aids and undertook these activities with no outward appearance of restriction.
……….
Wednesday 17 September 2014 from 6.00am to 3.00pm
We arrived at [Mr McCarthy’s premises] noting the Subject’s vehicle parked in the car port. At 7.49am, the Subject was sighted at the front of the premises, before climbing up on a rubbish bin at [Berwick Street premises] and jumping over a fence. Over approximately the next 60 minutes, the Subject was observed working on a boat, crouching down, bending at the waist, tying and untying ropes, removing and unloading items to and from the boat and conversing with the occupant of [Berwick Street] premises. The Subject exited the [Berwick Street] premises and climbed back over the fence and returned to [Mr McCarthy’s] premises. Over the 60 minutes, the Subject was observed moving in and out of his premises. At 10.49am, the Subject was observed at [the premises next door to Mr McCarthy’s premises] and over approximately the next five hours was observed working on a boat trailer, laying on the ground, running to answer his mobile phone, operating an angle grinder and jacking up the trailer to remove two of the wheels. The Subject was observed to put away tools, power cords and gloves, before returning to his premises, where he remained.
………….
Video Obtained
We obtained approximately 2.25 hours of video footage depicting the Subject:
- Working on a boat for approximately 60 minutes
- Bending at the waist
- Crouching down
- Jumping up and down off a boat
- Tying and untying ropes
- Removing and loading items into and out of a boat
- Playing with a dog
- Jumping over a fence
- Working on a boat trailer for approximately five hours
- Laying on the ground
- Running
LS Partners’ report, dated 7 October 2015, states:
………We have conducted 20 hours of surveillance and obtained approximately 23 minutes of video footage.
The Subject was observed attending his known appointment and Murray Street mall, riding a bicycle, squatting, smoking cigarettes, conversing with two people, consuming food and boarding and alighting from a train.
The Subject did not appear to be wearing medical aids and undertook these activities with no outward appearance of restriction.
consideration
Section 16 of the SRC Act states:
Compensation in respect of medical expenses etc.
(1)Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
………..
“Injury” is defined in s 5A of the SRC Act as follows:
(1) In this Act:
"injury" means:
(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.
Section 19 of the SRC Act states:
Compensation for injuries resulting in incapacity
(1)This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
(2)Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:
where:
"AE " is the greater of the following amounts:
(a)the amount per week (if any) that the employee is able to earn in suitable employment;
(b)the amount per week (if any) that the employee earns from any employment (including self-employment) that is undertaken by the employee during that week.
"NWE " is the amount of the employee's normal weekly earnings.
There does not seem to be any dispute that Mr McCarthy was partially incapacitated, and in need for medical treatment, as a result of his “musculoligamentous strain lower back” injury sustained on 3 May 2012 up to 23 November 2014 (being the date of Dr Low’s first report: refer to paragraphs 114 and 115 above). The Determination itself only speaks from 23 November 2014 (refer to paragraph 97 above) and yet the application from August was quite clearly from 9 December 2013, when Mr McCarthy’s employment with K & S Freighters was terminated: refer to paragraphs 79-84 above. The Determination is silent on the period 9 December 2013 to 23 November 2014. However, what is clear from all of the papers filed in these proceedings, is that the parties are in dispute in relation to Mr McCarthy’s capacity from 23 November 2014.
The nature of the dispute was originally whether the compensable effects of the accident had by 23 November 2014 resolved as a result of the provision of Dr Low’s report dated 23 November 2014: refer to paragraphs 114 and 115 above. As at 23 November 2014, there seems to have been some dispute about the extent of Mr McCarthy’s retained earning capacity but at that point it was not suggested by anyone that Mr McCarthy was fully fit for his pre-accident hours and duties. That proposition emerged as recently as 5 May 2016 when Dr Low provided his latest report, dated 5 May 2015 stating that he now felt that Mr McCarthy was fully fit for his pre-injury duties full-time: refer to paragraph 125 above. In fact, that takes the time period back from Dr Low’s original report of 23 November 2014 to 17 September 2014 (when the DVD surveillance footage of Mr McCarthy was taken).
All the evidence before the Tribunal is to the effect that Mr McCarthy did sustain some kind of back injury and the evidence of all the doctors has been that he has never claimed to be as he put it, “a cripple.” Mr McCarthy has consistently stated that he remains active and he did not, on examination, suggest that he was greatly disabled. Mr McCarthy has repeatedly said that he is capable of many activities in his daily life and the DVD surveillance footage evidence is not inconsistent with Mr McCarthy’s evidence that he can exert himself on occasions but may well suffer later. Mr McCarthy was not seriously challenged in cross-examination on his evidence about the pain medication he took to enable him to remain active.
There is unchallenged evidence that Mr McCarthy was without lower back symptoms before 3 May 2012 but that, ever since 3 May 2012, Mr McCarthy has had continuing symptoms which fluctuate depending on what he has been doing. Mr McCarthy’s contention that he still suffered symptoms was not expressly challenged in cross-examination. The evidence establishes that sleep has been a particular problem for Mr McCarthy since the accident on 3 May 2012. The evidence further establishes that Mr McCarthy has regularly attended his GP since being injured on 3 May 2012. The GP’s certificates show that Mr McCarthy has at all times, since 3 May 2012, been certified as incapacitated to some extent. Of course, it is common ground that Mr McCarthy has never returned to his full pre-accident duties although he has had extended periods on lighter duties.
The evidence shows that Mr McCarthy’s rehabilitation process may have been less than ideal. It appears to have been complicated by these issues of alleged bullying, issues of whether the rehabilitation duties were properly supervised, the issues of whether he was failing to report his absences (which led to the termination of his employment), that his phone was out of charge and so on. However, what is important for the purpose of this application is that the evidence of Mr McCarthy and the various doctors is that Mr McCarthy has at all times had some physical incapacity, leaving aside the most recent report of Dr Low, dated 5 May 2016.
In relation to the DVD surveillance footage taken of Mr McCarthy on 17 September 2014, the Tribunal notes that it was taken over approximately seven hours on that day and my McCarthy acknowledged that he had worked the whole day. But in fact one should note that the clock starts running at about 7.49 am, then shortly after Mr McCarthy begins work on a boat for about one hour, then there is about a one and a half hour break before Mr McCarthy starts working on the trailer at approximately 10.49am, then the tape finally stops running at about 2.39 pm. So from 7.49 to 2.49 pm is about seven hours and yet we only have two hours and 13 minutes of footage from that seven hours and there are several minutes during that two hours and 13 minutes when Mr McCarthy is on the phone or he’s talking to someone or he is walking from one place to another. So what we have is about two hours out of seven hours.
With the exception of Dr Low (refer to paragraphs 127-128 above), the surveillance footage evidence has shown not to be significant as far as the majority of the doctors are concerned. Dr Slinger was not of the view that the surveillance footage changed his opinion and he certainly disagreed with the proposition that he could conclude that amount of surveillance footage that someone was fit to be a forklift driver for 10 hours a day: refer to paragraph 129 above. Dr Hardcastle seemed to be of the same view: refer to paragraph 130 above.
Mr Parry gave evidence regarding his field of work and what his role is. Mr Parry does not supplant the role of doctors in deciding on restrictions but he works with those restrictions and with evidence about the worker’s past experience or job market qualifications to arrive at certain pathways for retraining. Mr Parry described having taken into account the medical evidence, past work experience, qualifications and job availability in selecting suitable job options. His report sets out the tests conducted to determine aptitude: refer to paragraphs 134-137 above.
Mr Parry concluded that returning Mr McCarthy to his old job or even his old employer was unrealistic (which seems undeniable) and that a new job with a new employer would be the aim. Mr Parry identified at least three potential new jobs for Mr McCarthy (being an administrative assistant, a purchasing officer and a property manager), but noted that each would require some training: refer to paragraphs 135-136 above. The Tribunal finds that Mr Parry’s analysis provides a realistic way forward for Mr McCarthy. Clearly, it is not as simple as saying that Mr McCarthy is fit to walk into an office job tomorrow. There are steps he would have to take on Mr Parry’s evidence such as reskilling for his MYOB and for other software. That might not take long. It might not cost much but it’s nevertheless a step which needs to be taken. Sections 36 and 37 of the SRC Act have in mind that a proper rehabilitation program should be developed. Based on the evidence, that process has not properly been completed in Mr McCarthy’s particular case.
Based on the WorkFocus reports (refer to paragraphs 19, 30, 31 and 58 above), there was really only one project that was advanced, and that was to get Mr McCarthy back to his old job as a forklift operator/driver. Those reports consistently refer to the goal as being to restore Mr McCarthy to his “PID” (i.e. pre-injury duties), but on the way to that goal Mr McCarthy is to perform various light duties around the plant. Mr Parry’s view, and really the view of all the doctors, with the possible exception of Dr Low, is that going back to the same job and the same employer is just not realistic. There needs to be something else tried. As such, it can be concluded that the process of rehabilitation has not yet been completed and, as stated, the SRC Act has requirements for that process.
In summary, Mr Slinger’s evidence was that in the absence of the 3 May 2012 accident, Mr McCarthy would not be in his present situation, and he is unfit for his pre-accident duties: refer to paragraph 119 above. Although, Mr Slinger sees scope for Mr McCarthy working on lighter duties he considers that further medical treatment is necessary: refer to paragraph 119 above.
The approach of Dr Low, Occupational Physician, was somewhat in contrast to the approaches of Mr Hardcastle and Mr Slinger, who both, of course, share the distinction of being very senior Orthopaedic Surgeons. It became clear that Dr Low, despite his letter of referral directing him to s 37 of the SRC Act, did not assess Mr McCarthy from the perspective of rehabilitating him but, rather, from the stance of judging his genuineness.
Dr Low gave evidence about his approach. He said that he looked for “yellow flags”, such as whether a patient was on Workers’ Compensation, or whether someone has legal representation as indicators. Dr Low said he looks for “Waddell’s signs”, broadly meaning tests to see if someone is giving responses that one would not normally expect to give (“trick testing”). Dr Low’s conclusion was that in Mr McCarthy’s case the Waddell’s signs were not convincingly positive, which he seemed to be conceding, but in fact he meant they were negative. Dr Low said that Mr McCarthy was “unlikely” to “make further improvement without further complaints of pain, if he was made to do so within the claim” and that’s where he explained that being within a Workers’ Compensation claim is a yellow flag for him. Dr Low does not appear to have approached the task of assessing Mr McCarthy without preconceptions. On the contrary, he seemed to be looking for evidence of lack of genuineness. The ultimate proof of that is when Dr Low was asked about the DVD surveillance video and he said that it did not really do anything more than confirm what he had already been thinking. Consequently, all three doctors, in the end, said that the surveillance video hadn’t really changed their views, but in Dr Low’s case that was because he had already made up his mind, it would seem, even though his original report didn’t spell that out.
Dr Low attempts to build a case by referring to the date on which medication was prescribed and by noting that range of movement was different on two medical examinations: refer to paragraph 115 above. Ultimately, those points prove nothing.
In reaching his conclusions regarding Mr McCarthy, Dr Low seems to give no weight to the history that there had been no back pain before 3 May 2012 but there has been back pain ever since 3 May 2012. Further, Dr Low does not seem to attribute any weight to the atypical nature of Mr McCarthy’s anatomy before the injury, even whilst conceding that that is a factor which goes against the idea that the current symptoms are caused by degeneration.
Dr Hardcastle’s original report of 4 September 2015 expresses views which have not really been changed, either by the surveillance video evidence or by his oral evidence at the hearing. Dr Hardcastle found Mr McCarthy’s presentation consistent with a strain injury and that he is not fit for his full pre-injury duties. Dr Hardcastle did not agree with the proposition that the effects of 3 May 2012 had worn off. As far as Dr Hardcastle was concerned the likelihood was that the effects still continued: refer to paragraphs 121 and 123 above.
For the above reasons, the Tribunal is satisfied, on the balance of probabilities, that K & S Freighters has present liability as at 23 November 2014 to: (i) pay to or on behalf of Mr McCarthy medical and like expenses pursuant to s 16 of the SRC Act; and (ii) pay Mr McCarthy weekly compensation payments pursuant to s 19 of the SRC Act, in respect of his “musculoligamentous strain lower back” injury sustained on 3 May 2012.
decision
For the above reasons, the Tribunal sets aside the Decision and remits the matter to K & S Freighters for reconsideration in accordance with the following:
· The Tribunal DIRECTS that from 9 December 2013 (being the date on which Mr McCarthy’s employment with K & Freighters was terminated), and continuing, K & S Freighters is liable to:
(i)pay to or on behalf of Mr McCarthy medical and like expenses pursuant to s 16 of the SRC Act; and
(ii)pay Mr McCarthy weekly compensation payments pursuant to s 19 of the SRC Act,
in respect of his “musculoligamentous strain lower back” injury sustained on 3 May 2012; and
·The Tribunal RECOMMENDS that Mr McCarthy complete a rehabilitation program in accordance with s 36 and s 37 of the SRC Act and that a new determination be issued by K & S Freighters whereby Mr McCarthy’s continuing weekly compensation payments be calculated based on the difference between his NWE (new weekly earnings) and the amount found to be appropriate following Mr McCarthy’s completion of the rehabilitation program.
| I certify that the preceding 166 (one hundred and sixty six) paragraphs are a true copy of the reasons for the decision herein of Senior Member CR Walsh |
..........[Sgd]..............................................................
Administrative Assistant
Dated 5 July 2016
| Date(s) of hearing | 10-12 May 2015 |
| Counsel for the Applicant | Mr D Burns |
| Representative for the Respondent | Mr D Clarke |
| Solicitors for the Respondent | Clarke Legal |
Key Legal Topics
Areas of Law
-
Employment Law
-
Administrative Law
Legal Concepts
-
Remedies
-
Judicial Review
-
Procedural Fairness
-
Statutory Construction
0
0
1