Moores v Simon Blackwood (Workers' Compensation Regulator)
[2014] QIRC 18
•28 January 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Moores | v | Simon | Blackwood | (Workers' |
Compensation Regulator) [2014] QIRC 018
| PARTIES: | Moores, Amanda |
| (Appellant) | |
| v | |
| Simon Blackwood (Workers' Compensation Regulator) | |
| (Respondent) | |
| CASE NO: | WC/2013/116 |
| PROCEEDING: | Appeal against a decision of Simon Blackwood |
| (Workers' Compensation Regulator) | |
| DELIVERED ON: | 28 January 2014 |
| HEARING DATE: | 21 November 2013 |
| MEMBER: | Deputy President Swan |
| ORDERS : | 1. The Appeal is allowed. |
| 2. Costs are awarded against the Regulator. | |
CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION - decision of Simon Blackwood (Workers' Compensation Regulator) - |
| Appellant bears onus of proof – inconsistencies in | |
| Appellant's evidence - medical evidence unreliable - preference of medical specialists clear and properly referenced evidence over another - Appellant's reporting of stages of injury not unusual - the Appeal is allowed. | |
| CASES: | Workers' Compensation and Rehabilitation Act |
| 2003, s 32(1), s 32(3)(b) | |
| APPEARANCES: | Mr J. Morris, Counsel instructed by Shine Lawyers for the Appellant. Mr S. Sapsford, Counsel instructed by Simon Blackwood (Workers' Compensation Regulator). |
[1] This is an application made by Ms Amanda Moores (the Appellant) against a decision made by the Workers' Compensation Regulator formerly known as Q- COMP (the Regulator) on 14 March 2012.
[2] The Appellant application for compensation, first lodged with the self-insurer Aged Care Employers' Self Insurance (ACES), was rejected and that decision was affirmed by the Regulator.
The Legislation
[3] The Legislation relevant to this Appeal is s 32(1) and s 32(3)(b) of the Workers' Compensation and Rehabilitation Act 2003 (the Act):
"32 Meaning of injury
(1) An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.
(3) Injury includes the following -
(b) an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation - (i) a personal injury;
(ii) a disease;
(iii) a medical condition if the condition becomes a personal
injury or disease because of the aggravation … ".
Onus of Proof
The Appellant bears the burden of proof on the balance of probabilities.
It is not contested that Ms Moores is a 'worker' for the purposes of s 11 of the Act.
Witness Evidence
[6] The witnesses for the Appellant were:
Amanda Moores (the Appellant)
Dr Scott Campbell (Neurosurgeon)
David Chaing (Physiotherapist).
[7] The witnesses for the Respondent were:
Cheryl Shurmer (co-worker)
Dr Bruce Martin (Orthopaedic Surgeon) Dr Suntharalingam Sutharsam (General Practitioner). Evidence
[8] The Appellant was employed from 20 August 2012 primarily as a personal care worker for RSL Care before injuring her back on 10 September 2012.
[9] The work of a personal care worker included providing a service to clients in their homes covering a range of duties. Those duties could include the performance of domestic duties, assisting clients with hygiene matters and other domestic matters.
[10] Upon employment with RSL Care, the Appellant advised of problems she had previously had with her back. In 2000, the Appellant had transferred a patient and damaged her L4 and L5 and surgery in 2003 followed. The surgery related to her lower back on the left side. The Appellant suffered a further strain in her lower back in 2011.
[11] The Appellant states that prior to her employment with the current employer she had never suffered any symptoms in any part of her back other than in her lower back.
[12] On 10 September 2012, the Appellant was working at the home of one of her clients, Mrs S. Mrs S was an older woman who weighed between 80 to 90 kilos. The requirement on that day was to assist Mrs S out of her bed, into a wheel chair and then into the toilet and shower area of her bathroom.
[13] The Appellant was assisted on that day by another co-worker, Ms Shurmer.
[14] The Appellant was taller than Ms Shurmer and consequently took the brunt of Mrs S's weight. A diagram was provided to the Commission detailing the lay-out of the bathroom. This diagram showed that the bathroom was narrow and access into the bathroom was by way of a small ramp. Upon entering the bathroom, there was a vanity unit which ran along the wall. It was an L-shaped bathroom. At a particular point, Mrs S had to stand up to hold onto the rail while the Appellant and Ms Shurmer manoeuvred her to the toilet before transferring her to the shower area.
[15] The Appellant says at that time she felt 'twinges in her back and upper shoulder, right shoulder'. As well, the Appellant stated that she felt a 'burn' and then a 'pinch entrapment of some sort in the lower back at the time'.
[16] Notwithstanding that, the Appellant continued to perform her duties on that day. The Appellant says she told Ms Shurmer that she had hurt her back and she said Ms Shurmer advised her that she also had suffered back complaints when performing work of this kind. The Appellant says that she advised Ms Shurmer to make notes about having to manually assist Mrs S in the way that was required of them on that day. Ms Shurmer denied having this conversation with the Appellant although she stated that she had said to the Appellant that working with Mrs S was 'difficult work'. In evidence Ms Shurmer also stated that she had experienced back pain at times when assisting with Mrs S [T1-35].
[17] When continuing her duties on that day with another client the Appellant felt symptoms in her lower and thoracic region of her spine.
[18] Upon returning to the workplace on the same day, the Appellant advised Ms Karen Keown of what had happened and that she had hurt her back. The Appellant says that Ms Keown asked her if she wanted any worker's compensation forms but she declined that offer.
[19] On the following day, the Appellant visited her General Practitioner, Dr Sutharsam and reported experiencing lower spine pain and also tenderness and discomfort over the right shoulder.
[20] The Appellant attended a Physiotherapist, Mr Chaing on 18 September 2012 and her major complaint was that she had pain in her upper right shoulder thoracic area which she says had 'got worse'. The Appellant says that after the first treatment by Mr Chaing, her lower back pain had significantly resolved and after two further visits to him it had resolved.
[21] Notwithstanding continued physiotherapy, the Appellant continued to suffer pain in the upper right thoracic region.
[22] The injury claimed by the Appellant was that of a musculoskeletal injury to the thoracolumbar spine (as diagnosed by Dr Campbell).
[23] The Regulator's submissions focussed primarily upon what it saw as the inconsistencies in the Appellant's evidence concerning the type of symptoms she had recorded regarding her injury. The following represents responses to questions posed by the Regulator to the Appellant.
[24] Under cross-examination, the Appellant stated that she would not have described her symptoms at the time of her injury as 'Stretched and painful and tense' but rather that it felt like there was a 'heavy entrapment burn down the left side' [T1-25]. However, produced was a document entitled ACES Statement from Injured Worker dated 21 September 2012. In that Statement the Appellant had described her symptoms as 'it was like the muscles were stretched and painful and tense'.
[25] The Appellant was also questioned by Counsel for the Regulator concerning the Physiotherapist's report in the form of a diagrammatic representation of the human body where shading purports to represent the areas of discomfort. On that diagram, dated 18 September 2012, the shading referred to areas both right and left on the back above the waistline. The Appellant agreed that at the time of seeing the Physiotherapist she had complained of pain in her upper back area.
[26] In giving his evidence, Mr Chaing stated that the Appellant had said she had tender muscles over the upper part of her back. Mr Chaing said that the Appellant had also mentioned her lower back, but he was unsure as to why he hadn't reported that in his diagram. While Mr Chaing had not shown this information from the Appellant in his diagram he said it was still recorded in his notes as the objective part of his
examination and 'It doesn't matter if it was recorded as long as – on the body chart or
written – on a –in written language' [T1-43].[27] Upon seeing Dr Martin on 26 September 2012, the Appellant agreed that she had advised him that she was not experiencing any back pain at that time but rather was having difficulty elevating her right arm [T1-28].
[28] The Appellant then met with Dr Campbell on 21 August 2013 when she reported mid and lower back pain with radiation up to the right shoulder region and intermittent radiation down the left leg [Exhibit 11].
[29] Dr Campbell, during evidence, stated:
"Ms Moores has an injury to the mid back region or lower back region and a musculoskeletal injury is essentially a soft tissue injury of the region. So it would include all the soft tissues such as the muscles, tendons, joint capsules, discs, that sort of thing. So it's always very hard with soft tissue injuries to pinpoint the
exact source of the – of the inflammation or pain. So it's sort of a - that diagnosis
encompasses the whole gambit of possibilities." [T1-45].
[30] Dr Campbell was of the view that the Appellant's presentation was complex in that she had a prior injury to her lower back requiring disc replacement surgery. He stated that was an unusual scenario for mid back and lower back injuries and consequently an assessment of her situation was a "bit greyer than usual" [T1-46].
[31] After consideration, Dr Campbell suspected that the Appellant had a combination of mid back injury and lower back injury, but he "wouldn't feel strongly about that opinion because of her previous lower back complaint" [T1-46].
[32] Counsel for the Appellant put the following question to Dr Campbell:
"I'd just like to put a scenario to you, Dr Campbell – and get you to comment on it if you will. But is there anything that causes concern – that would cause you
concern in the following scenario: a person who suffers from an incident or complains of suffering from an incident which gives initial onset of sharp lower back pain and some shoulder pain, and then over the course of approximately seven days the thoracic shoulder area pain intensifies. After a bout of treatments from a physio, the lower back pain resides but the upper thoracic pain
continues… Is there anything that would cause you concern in that scenario?"
[33] Dr Campbell replied – "No, nothing. That doesn't seem unusual" [T 1-47].
[34] Dr Campbell held a different view to that of Dr Martin.
[35] Dr Martin saw the Appellant on 26 September 2012 and provided his Report on 3 October 2012.
[36] Dr Martin noted that the treating General Practitioner, Dr Sutharsam had stated that the Appellant suffered pain on the left side of her back. She was also tender over the right shoulder.
[37] Dr Martin had noted that the pain diagram provided indicates that the primary pain was around the right shoulder blade. Also there was pain at the back of the right shoulder and in the thoracic region on the left side. As well, on the diagram was pain above the left hip and the Appellant told Dr Martin that she has pain at the back of her neck when she tilted her head forward.
[38] Dr Martin did not believe that there was any validity to the Appellant's claim. He stated that 'there are numerous inconsistencies and non-organic signs'.
[39] This view was formed from a consideration of the following factors:
At the time of interview, the Appellant was not experiencing any pain. While the Appellant claims to have experienced pain in the right shoulder
region, there was a lack of consistency with regard to the current assertion and
the medical records and certificates.
Dr Martin did not believe that the Appellant was suffering from a pre-existing condition as there was no evidence of any pre-existing condition in the region of the current symptomatology. There was no requirement for treatment. [40] Dr Martin was asked by Counsel for the Appellant whether, firstly he was aware that Shine Lawyers had written to him asking for his notes on behalf of the Appellant. Dr Martin had no knowledge of that request.
[41] Secondly, Dr Martin was asked why Physiotherapist notes were not included in his list of documents considered under the heading of "Methodology" in his Report. Dr Martin said he had seen a letter from a Physiotherapist but if he had that material at the time of writing his report then he would probably put that in his Report.
[42] When questioned by Counsel for the Appellant as to the 'inconsistencies' he had found Dr Martin responded as follows:
There was a lack of consistency in the Appellant's claim to different people.
When the Appellant visited the Physiotherapist, she said she was experiencing pain in the mid-thoracic and lower back. (Dr Martin gathered this information
from Ms Janet Hearn – the statutory claims officer and presumed the view had come from the Physiotherapist). Information was acquired by Dr Martin from a letter from the self insurer -
ACES. In that correspondence it was stated that that the Appellant had not spoken to or reported any pain to the witness Ms Shurmer.
Further, the Physiotherapist recorded a full range of movement but Dr Martin
had observed a limited range in the elevation of the Appellant's shoulder.
Dr Martin queried the reporting of loss of movement in the Appellant's neck, with no apparent cause. Dr Martin saw this as an inconsistency as an injury was never claimed to have occurred to the neck.
Dr Martin had not referenced any of Dr Sutharsam's records because he
thought they had not been included in his Methodology.
[43] Counsel for the Appellant advised that in Dr Sutharsam's files, it was noted that the Appellant had been to the Physiotherapist and 'felt pain over the right shoulder blade
while getting the physio done … Tenderness over the lower end of the right scapula
region, in angle, limited flexion 110, extension limited due to tension, ext rotation
limited due to tension'.[44] Counsel for the Appellant advised Dr Martin that the Appellant had attended Dr Sutharsam on 25 September 2012, and there had been evidence given by him to the extent that the Appellant was not making a complaint about lower back pain, but that her complaint was solely to tenderness and lack of flexion in the upper right region. Dr Martin agreed that was not inconsistent with the records taken by him during the consultation.
[45] Dr Martin further agreed that given the Appellant's prior back history, some pain could be experienced by the Appellant.
[46] Dr Sutharsam, had stated that the Appellant had first mentioned pain in her back to him on 11 September 2012. The pain mentioned at that time related to pain on the left side of the back. At the time of the next visit on 27 September 2012 the Appellant had mentioned that she was experiencing right shoulder pain while having a session with the Physiotherapist.
[47] Dr Sutharsam stated that he had agreed with Dr Martin's concerns regarding an inconsistency in the Appellant's reporting of her injury as she had advised Dr Martin that she was not experiencing any back pain and she did not injure her lower back as a consequence of the work related incident. That particular incident was the only reason why Dr Sutharsam stated that he had agreed with Dr Martin. When making this comment, Dr Sutharsam was only referring to information given to him by the Appellant on 11 September 2012. Dr Sutharsam agreed that on 25 September 2012 the Appellant's main complaint concerned her right shoulder pain and not lower back pain.
Consideration of Submissions and Conclusion
[48] The Regulator's primary submission goes to the credibility of the Appellant in her reporting of her injury to different medical specialists and others. The Regulator states that there are too many inconsistencies in the reporting of the injury. So much so that the Commission would be unable to make a finding that any particular injury has occurred as a result of the incident at work.
[49] Other factors of concern to the Regulator include the timing of the Appellant's injury and the fact that she continued on with her work on that day without taking any analgesics. Ms Shurmer denied that the Appellant had complained to her of injuring her back on that day. However, Ms Shurmer agreed that she did have a sore back at times from assisting with Mrs S [T 1-35]. Finally, the fact that the Appellant did not accept the offer of Worker's Compensation forms from Ms Keown on that afternoon after the Appellant had advised her that she had hurt her back should be considered. At the time of the incident on 10 September 2012, the Appellant had said that she was not suffering from lower back symptoms. The Regulator states that "she has failed to consistently refer to what is now the injury that is claimed by virtue of her
consultation with Dr Campbell …".
[50] The Appellant says that, with no evidence to the contrary, the Appellant's evidence as to the mechanism of the injury must be accepted. It is not in contention that the work performed on that day was physically demanding work.
[51] The Appellant stated that she had not been suffering any lower back problems at the time of the incident. As well, the Appellant had no history of thoracic back injury or symptoms.
[52] Initially the complaint of the Appellant was for 'back pain', but at the commencement of the hearing it was accepted that the diagnosis of Dr Campbell was what was relied upon by the Appellant.
[53] The Appellant stated that while that term had been used to describe the back pain, the injury was never for an injury of the lower spine. The description incorporated the thoracic spine symptoms and the upper region symptoms, as is referenced in Dr Campbell's report.
[54] The Appellant says that both Dr Martin and Dr Campbell gave evidence that it is not unexpected that back pain can be intermittent. After considering all of the evidence, the Appellant asserts that the evidence given is not inconsistent.
[55] I have preferred the evidence given by Dr Campbell over that of Dr Martin. I will firstly consider the evidence given by Dr Martin.
[56] Dr Martin's Report was dismissive of the Appellant's claim. While one is entitled to that view, it must be supported by examples as to why the claim of the Appellant should be disregarded to the extent that a finding be made that she has no injury because of inconsistent claims and non-organic signs.
[57] Dr Martin did not appear to have a complete file. In an attempt to explain the Appellant's inconsistencies it appeared that Dr Martin had relied in part upon correspondence from the self-insurer expressing a particular view and he was unsure as to whether he had Dr Sutharsam's records in his file. Further when Mr Chaing's records were considered, Dr Martin conceded that there did not appear to be any inconsistency.
[58] I have formed the view that any reference made by Dr Martin to 'inconsistencies' were not independently formed by him, but by recourse to other opinion and in this case partly by the self-insurer. It appears the only other medical records before Dr Martin were those of Dr Sutharsam.
[59] The Appellant says that what has not been challenged is that an incident occurred on 10 September 2012 (which was reported to the employer on that day). The issuing of a medical certificate by Dr Sutharsam, the contemporaneous reports of Dr Sutharsam and Mr Chaing all support the fact that an injury occurred. That evidence is compelling and accepted by the Commission as factually correct.
[60] It is clear that the Appellant had prior back problems, but never of the type complained of in this matter.
[61] In terms of Dr Campbell's report and evidence, it comprehensively considers the primary aspects of the Appellant's claim and his evidence was, in my view, balanced and clear.
[62] Dr Campbell diagnosed the Appellant's injury as 'Musculo-skeletal injury to the thoracolumbar spine'.
[63] On presentation to Dr Campbell, the Appellant had mid back pain, lower back pain and right shoulder blade pain which had persisted despite treatment with rest and analgesic relief.
[64] Dr Campbell stated that when considering an injury to mid back or lower back regions, the diagnosis of musculoskeletal injury encompasses 'the whole gambit of possibilities' [T 1-45].
[65] Dr Campbell stated that the Appellant's overall back history made his assessment of her condition 'complex' and 'a bit greyer than usual' T 1-46.
[66] However, when considering the full background of the Appellant's condition [see paragraphs 28, 29] Dr Campbell thought the progression of the history of the claim with regard to the Appellant's evidence did not seem 'unusual' [T 1-47].
[67] Upon reference being made to Mr Chaing's report, that after his initial treatment where back pain was reported as subsiding and eventually resolving (after two more visits) Dr Campbell stated that "The future cause of a back injury is underdetermined at that stage. So you would expect if symptoms have settled, then the vast majority of patients would - would have settled symptoms thereafter if there were no further aggravating factors and circumstances. But some patients their
symptoms are going to settle and then – at a short period later or - or a - several
months later the symptoms can come back. That's the nature of spinal pathology."
[T 1-48].[68] Dr Campbell's response to a question from the Regulator concerning the Appellant's claim to have right shoulder blade pain, was that: "yes, I think thoracic spine injuries can refer across to the shoulder blade because the shoulder blade is really adjacent to
the thoracic spine …. So it is a common referred site" [T1-49].
[69] Dr Campbell further agreed that when an assessment is made from a complex presentation and the assessment may be 'greyer than usual', reliance is placed upon the symptoms expressed by the patient in order to form a proper diagnosis.
[70] The Regulator has challenged the perceived 'inconsistencies' in the Appellants' evidence. In all, I have found the Appellant to be a credible witness.
[71] Dr Campbell has stated that he did not find the Appellant's history of her injury as 'unusual'. Where complaints may have been made by the Appellant which might seem inconsistent, I have accepted Dr Campbell's evidence that the Appellant's recording of her injury was not 'unusual'.
[72] In all I have found the Appellant to be a credible witness. I have found Dr Martin's evidence to be unreliable and I have also found Dr Campbell's evidence to be the more credible.
[74] I have found that the Appellant has sustained a personal injury in accordance with s 32 of the Act; that this injury occurred on 10 September 2012 and that the personal injury arose out of Ms Moores' employment and employment was a significant contributing factor to Ms Moores' injury.
[75] The Appeal is allowed and costs are awarded against the Regulator.
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