Salmoni v Simon Blackwood (Workers' Compensation Regulator)
[2014] QIRC 4
•16 January 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Salmoni | v | Simon | Blackwood | (Workers' |
Compensation Regulator) [2014] QIRC 004
| PARTIES: | Salmoni, Robert | ||||
| (Appellant) | |||||
| v | |||||
| Simon Blackwood (Workers' Compensation Regulator) | |||||
| (Respondent) | |||||
| CASE NO/S: | WC/2013/125 | ||||
| PROCEEDING: | Appeal against a decision of Simon Blackwood | ||||
| (Workers' Compensation Regulator) | |||||
| DELIVERED ON: | 16 January 2014 | ||||
| HEARING DATE: | 9, 10 and 13 September 2013 | ||||
| 13 September 2013 (Respondent submissions) 9 October 2013 (Appellant submissions) | |||||
| MEMBER: | Deputy President Swan | ||||
| ORDERS : |
| ||||
CATCHWORDS: | WORKERS' COMPENSATION – APPEAL AGAINST DECISION –decision of Simon Blackwood (Workers' Compensation Regulator) – Appellant bears onus of proof – aggravation of pre existing injury – compensation for medical expenses only – appeal dismissed – Appellant to | ||||
| pay costs. | |||||
| CASES: | Workers' Compensation and Rehabilitation Act | ||||
| 2003, s 32, s 108, s 144A, s 144B, s 209,s 210 Fernandez v Tubemakers of Australia (1975) 2 NSWLR 191 Heald v Q-COMP (2004) QIC 177 | |||||
| Lee Grant Colburn and Workers' Compensation | |||||
| Board of Queensland (No C20 of 1996) Thompson v Armstrong & Royce Pty Ltd (1950) 81 CLR 585 | |||||
| APPEARANCES: | Mr R. Salmoni, self represented. | ||||
| Mr F. Lippett, Counsel instructed by Simon | |||||
| Blackwood (Workers' Compensation Regulator). |
[1] This is an application made by Mr Salmoni (the Appellant) against the decision of Workers' Compensation Regulator formerly known as Q-COMP (the Regulator). The decision of the Regulator was made after consideration of the following factors.
[2] On 11 January 2011, the Appellant filed with JBS Swift Australia at Dinmore (the self insurer) an application for workers' compensation. The application was accepted as an "aggravation of a pre-existing osteoarthritic wrist" for medical expenses only.
[3] On 29 February 2011, the self insurer advised the Appellant that the payment for compensation benefits would cease as at 2 March 2012 and that it would not accept liability for surgery and hospitalization.
[4] The self insurer claimed that it was only liable for the work related aggravation of the pre existing injury and that the aggravation was stable and stationery and consequently payments ceased. In its view, the surgery required by the Appellant related solely to the pre existing non work related injury.
[5] On 2 March 2012, the self insurer terminated the claim on the grounds that medical advice received was that the aggravation component of the injury had ceased. The Appellant lodged an application for review of that decision and that decision was subsequently confirmed by the Regulator. The Notice of Appeal against the decision was completed on 11 April 2013.
Witnesses
[6] Witnesses for the Appellant were:
Robert Salmoni (Appellant)
Dr Lili Walsh (General Practitioner) Dr Andrew Ryan (Orthopaedic Surgeon). [7] Witnesses for the Respondent were:
Dr John Morris (Orthopaedic Surgeon) Dr Anthony Keays (Orthopaedic Surgeon) Dr Gregory Couzens (hand and wrist surgery specialist) Dr Darren Marchant (Orthopaedic Surgeon). Relevant Legislation
[8] Section 32 of the Workers' Compensation Act 2003 (the Act) defines "injury" relevantly as follows:
(3) Injury includes the following – (a) … (b) an aggravation of the following …
(i) a personal injury
(4)
For subsection (3)(b), to remove any doubt, it is declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation.
Section 108 states:
(1) Compensation is payable under this Act for an injury sustained by a worker. (2)
However, if a worker's injury is an aggravation mentioned in section 32(3)(b), the worker is entitled to compensation for the injury only to the extent of the effects of the aggravation.
(d) The obligation to pay medical expenses, and the discretion given to the insurer about payment is described in Chapter 4, Part 2, Division 1, sections
209 and 210.Section 209 states:
This part applies if medical treatment or hospitalization of a worker is required for the management of an injury sustained by the worker.
Section 210 (1) states:
(1) The insurer must pay the cost of the medical treatment or hospitalization that
the insurer considers reasonable, having regard to the worker's injury.
[7] Sections 144A and 144B of the Act include the circumstances under which compensation benefits can be ceased, and relevantly for this case, are as follows:
144A The entitlement of a worker to weekly payments of compensation …. Stops when the first of the following happens –
(a) incapacity because of the work related injury stops.
144B The entitlement of a worker to the payment of medical treatment,
hospitalization, and expenses … for an injury stops when:
(a) the entitlement of the worker to weekly payments of compensation … stops; and
(b) medical treatment by a registered person is no longer required for the management of the injury because the injury is not likely to improve with further medical treatment of hospitalization."
[8] The Regulator submits that applying the legislation to the Appellant's case, it was clear that the claim was not accepted because the Appellant was not incapacitated for work as he returned to work and continued to work albeit under a suitable duties program. The self-insurer's view was that the injury which had been accepted as such had ceased on 2 March 2012.
[9] The Regulator stated that "for the purposes of Section 144B of the Act, the Appellant's entitlement to weekly payments of compensation stopped in the sense that the entitlement did not commence at all. The second limb of Section 144B was satisfied for the insurer by the medical advice it received prior to making its cessation decision." [the Regulator submissions point 6].
The Appellant's claim
[10] The Appellant started work for JBS Swift Australia (Dinmore) as a slicer in March 2010.
[11] The Appellant undertook a medical examination prior to commencing work and was found to be fit and capable of working in any position within the meat processing industry. That testing did not include any radiological or clinical testing that could reveal whether the Appellant had any osteoarthritis or other degenerative problem in either wrist.
[12] At the commencement of his work, the Appellant worked in the Hide Processing Plant for 14 months.
[13] In April 2011, he was transferred to the environmental department for a brief period dredging the ponds.
[14] At the end of June 10 2011, the Appellant was transferred to the Boning Room where initially the duties involved intercostal recovery. Following that, for six weeks, he undertook training as a boning room slicer for six weeks. His duties involved slicing chucks and it was agreed between the parties that the work was arduous, constant and repetitious.
[15] The Appellant began to experience symptoms of pain (minor general soreness) in the right wrist in September 2011. Severe pain was felt in the right wrist some two weeks later. The pain proceeded to radiate instantly and directly from his right wrist to his right elbow. The pain was described by the Appellant as being "like a bolt of electricity".
[16] On the day when the severe pain was experienced (two weeks after the first symptom of pain in September 2011), the Appellant had commenced work at 5.00am and by 10.00am he had started work on a run of bull chucks.
[17] At this time, the Appellant states that he had to lift upwards of 80 pieces of meat weighing over 20 kgs and in some cases, in excess of 40 kgs.
[18] The Appellant finished that shift and managed his pain with medication. The Appellant's dominant hand is his right hand and he was required to use this hand for the slicing duties. The Appellant says that after he had seen the nurse at his workplace on that day he was sent home.
[19] The Appellant then returned to work on the following day performing light duties. That work continued until the Appellant was stood down from work on 29 February 2012. The Appellant stated that the employer said that whilst he retained his employment he could not return to the workplace until his injury was resolved.
[20] The Appellant consulted Dr Lilli Walsh on 3 November 2011, after which a screening musculoskeletal ultrasound and an XR Wrist Unilateral X-Ray was conducted in November 2012.
[21] The Appellant was referred to a Hand and Wrist Surgeon Dr Greg Couzens on 12 December 2011.
[22] Dr Couzens recommended surgery and the Appellant forwarded this information to the Human Resources Manager of JBS Swift Australia.
[23] On 28 February 2012, the Appellant was advised by the insurer that his claim had been accepted for payment of medical expenses only on the basis of a work induced aggravation of a pre-existing condition. The insurer determined that the entitlement for compensation for the injury commenced on 12 December 2011 and that the injury was an aggravation of a pre existing osteoarthritic wrist. The Appellant had stated that his injury occurred over a period of time with symptoms initially commencing on 11 October 2011.
Medical Evidence
[24] The medical evidence, as considered by Q-COMP was as follows.
[25] Dr Couzens provided a report on 9 February 2012 stating that the Appellant has a pre-existing scaphoid non union which had led to gradual development of osteoarthritis. He stated that the Appellant had suffered an aggravation of the pre- existing condition which would not cease until he undertook corrective surgery [Exhibit 16].
[26] During the course of evidence before the Commission, Dr Couzens reaffirmed that the surgery would be to correct the underlying condition, not the aggravation.
[27] Dr Couzens was of the view that most aggravations resolve within a reasonable period of time, but with some people this did not happen. He said that it was difficult to determine whether the Appellant's on going pain was due to the underlying problem or the aggravation.
[28] Dr Keays provided a Report on the Appellant's condition dated 4 May 2012. Dr Key's opinion was that the Appellant had suffered an aggravation of an osteoarthritic right wrist. He stated, in evidence, that the aggravation would have lasted three to four months, after which any on going pain would be attributable to the underlying pre-existing condition [Exhibit 15].
[29] Dr Morris saw the Appellant on 31 July 2012 and prepared a report on the same day.
[30] In that report, Dr Morris stated that the Appellant had suffered an aggravation of right wrist osteoarthritis and that the aggravation had ceased by the time he had seen the Appellant. He further stated that any on-going pain was due to the pre-existing condition. During the course of giving evidence, Dr Morris stated that the osteoarthritis would have inevitably become symptomatic and that an aggravation such as this would last for two to three months [Exhibit 14].
[31] Dr Marchant saw the Appellant on 21 August 2012. He provided two reports, dated 21 August 2012. In those reports, Dr Marchant also considered that the Appellant had suffered an aggravation of a pre-existing condition. In oral evidence, he said that the aggravation would have resolved in eight to twelve weeks [Exhibit 17].
[32] Dr Ryan prepared a report dated 29 November 2012. He stated that "he thought it not unreasonable at the time to accept that the symptoms were the result of the work related aggravation rather than his underlying pre-existing condition [Exhibits 18 and 19].
The medical evidence as considered by the Appellant
[33] The Appellant submits that Dr Couzens's evidence was that it was the aggravation of the pre existing condition which is the injury and this has caused the Appellant's symptoms, subsequent incapacitation and need for surgery.
[34] The Appellant states that the Commission should prefer the Report and evidence of Dr Ryan as he was the Appellant's treating specialist with whom he has had a long standing medical involvement.
[35] The Appellant cited the case of Fernandez v Tubemakers of Australia (1975) 2 NSWLR 191 at 193-194 where Reynolds JA stated:
"When a medical witness speaks of a probability of a causal relationship, he is himself drawing an inference based on medical knowledge and the facts as known to him. There is no doubt that, if a medical witness expressed a view that there is a connection, or that there is probably a connection, between the suggested cause and the result, a case is made out for consideration of the issue by the tribunal of fact."
[36] Within that context, the Appellant referred to a question posed to Dr Ryan by a Senior Claims Advisor of Q-COMP. The question posed was:
"… if so, do you consider the incapacity relates to the accepted aggravation or to the
underlying pre existing condition?
[37] Dr Ryan responded:
"Mr Salmoni describes the symptoms within his right wrist having originated from an aggravation of his pre existing injury. At the time of the last review I thought it not unreasonable to accept that his symptoms were the result of the work related aggravation rather than his pre existing condition." [Exhibit 19].
[38] Further Dr Ryan stated that while aggravations of the type considered in this decision could settle within three months, there are many patients who have aggravations of arthritis that do not settle and require ongoing treatment. In his view, the Appellant's symptoms belong to the latter category.
[39] Within the group of people for whom symptoms do not cease, Dr Ryan believed that "there is a group whose aggravation doesn't settle, which is why the salvage
surgeries for a non-union of a scaphoid with the arthritis – they're very common because the symptoms – you know, they present after a relatively minor injury or
workplace event".
[40] Regarding Dr Marchant's evidence, the Appellant says that he advised that he believed that the aggravation "is partly responsible for his ongoing issues in relation to the use of his hand and wrist." Dr Marchant did not believe that the Appellant's symptoms would resolve by itself.
[41] Dr Morris stated that if the Appellant had continued to perform the type of duties performed when he injured himself, then he would "get a fair aggravation". While stating that the Appellant's pain had improved significantly, the Appellant said it had only improved because of the painkillers he was taking on a regular basis.
[42] The Appellant cited the matter of Heald v Q-COMP (2004) QIC 177where President Hall (as he then was) stated:
"A degenerative condition may be aggravated in the sense that it may be made worse, i.e. after the aggravation the degenerative disorder is worse than it was before".
[43] The Appellant believed those views applied to his situation.
[44] The Appellant had stated that he claimed that his symptoms had ceased (in correspondence forwarded to Maurice Blackburn Lawyers on 2 February 2013) because it represented "his last desperate attempt in order to return to full time employment with my employer."
[45] In admitting that, the Appellant says that both Doctors Keays and Morris had noted the Appellant's desire to return to work.
Capacity of the Appellant to return to work
[46] The Appellant states that all medical specialists have said that he is incapable of returning to the type of work he had performed prior to the injury. Within that context, the Appellant states that s. 144A(1) of the Act has not been enlivened.
[47] The Regulator highlighted the Appellant's prior work history. The Appellant had training in economics and had previously operated his own website and construction firm and has previously worked in information technology and investment banking. All Medical specialists had stated that even with his underlying osteoarthritis, the Appellant could perform remunerative work, provided it did not involve arduous, and/or repetitive use of his right wrist.
Final submissions of the parties
[48] The Appellant states that notwithstanding the fact that he had a previously undiagnosed pre-existing injury to his right wrist, this does not detract from the temporal connection between his duties as part of his employment with JBS Australia and the onset of the right wrist symptoms.
[49] The Appellant also states that the opinion from Dr Ryan should be preferred to that of other medical specialists in that Dr Ryan had a long term involvement with the treatment of the Appellant.
[50] The Appellant submitted that the evidence of Dr Ryan should be accepted where he states that while aggravations of the type endured by the Appellant can resolve within a period of time (usually by 3 months), the Appellant's case was different. The aggravation had not resolved and could only settle after surgical rectification. This was a view the Appellant said that had been adopted by Dr Couzens. Dr Marchant also states that he did not believe that the Appellant's aggravation would resolve by itself.
[51] The Appellant states that pursuant to s. 32(4) of the Act, the 'effects' of the aggravation are that the Appellant is incapacitated and requires surgical intervention.
[52] The Regulator says that there is no reason to discard the evidence given by Doctors Keays, Morris and Marchant. Each of those Doctors have put a time limit on the life of the Appellant's aggravation. Doctors Morris and Marchant believed that the aggravation would last two to three months. Dr Keays thought it last for up to four months. Dr Couzen's view was that, on balance, the aggravation would be likely to have resolved within a restricted period, although it would be difficult to say that with certainty.
[53] If that evidence were to be accepted, then the Regulator submits that the Appellant could not succeed because the weight of medical evidence is that the injury which was the aggravation had ceased by 2 March 2012.
[54] In terms of the Appellant's claims that he was incapacitated from continuing his work at JBS, the Regulator says the question of incapacity was considered by Mr Justice de Jersey President (as he then was) in Lee Grant Colburn and Workers' Compensation Board of Queensland (No C20 of 1996). The Regulator states that His Honour quoted with approval the decision of the High Court in Thompson v Armstrong & Royce Pty Ltd (1950) 81 CLR 585. He found, inter alia, that incapacity does not mean incapacity for the particular employment in which the injured worker was engaged prior to the injury, but incapacity for any remunerative employment.
[55] In the circumstances of this case, the Regulator stated that the Appellant has training and expertise in areas of work, the performance of which would have no deleterious effect upon his wrist. In any event, the Regulator says that the Appellant was able to work at the meatworks on light duties while the aggravation was at its peak.
Consideration of the evidence and conclusion
[56] The Appellant represented himself in this matter.
[57] The specialist medical evidence goes to establishing that the Appellant suffered an aggravation of a pre existing condition. He has an osteoarthritic right wrist.
[58] Examining the Appellant, Doctors Morris, Marchant and Keays believed that the aggravation should have settled within a time period of up to 10-12 weeks. The opinion was that any residual pain, after the aggravation had subsided, was caused by the pre existing condition. I have considered Dr Couzen's evidence to the effect that he was unsure as to whether the Appellant's pain was due to his pre existing condition or the aggravation. I have accepted the evidence of Doctors Morris, Marchant and Keays as more persuasive than the evidence of Dr Ryan and the inconclusive evidence of Dr Couzens.
[59] It is accepted ultimately that a surgical procedure would most likely resolve the pre
existing condition – i.e. surgery aimed at correcting that problem rather than surgery
for the aggravation of that problem (see Dr Couzen's evidence) I have accepted that
opinion.[60] It was established that if the Appellant undertook work of a repetitive and arduous nature (as was performed when working as a slicer at JBS Swift Australia at Dinmore) then it was possible that the aggravation would reoccur.
[61] The case Lee Grant Colburn and Workers' Compensation Board of Queensland is authority for the proposition that "incapacity does not mean incapacity for the particular employment in which the injured worker was engaged prior to the injury, but incapacity for any remunerative employment".
[62] The Appellant has qualifications in a range of areas and need not only work in meatworks. Medical opinion was to the effect that he could perform work which did
not require repetitive or arduous use of his right wrist – i.e. work of an
administrative nature. This evidence is accepted on the basis of the work history
given by the Appellant coupled with medical specialist opinion.[63] Sections 144A and 144B of the Act include the circumstances where compensation benefits can be ceased.
[64] In terms of 144B (a) of the Act the Regulator submits that the Appellant's entitlement to weekly payments of compensation stopped in the sense that the entitlement did not commence at all.
[65] In terms of 144B of the Act, The medical evidence shows that there are no other recommendations concerning the work-related injury other than for surgery for the pre-existing condition which is not connected to the work-related injury. There is no ongoing entitlement to treatment under s. 144B of the Act.
[66] I find that there has been no on-going incapacity for work as a result of the work- related aggravation beyond 2 March 2012 and there is no further medical treatment required with respect to the work-related aggravation beyond 2 March 2012.
[67] For these reasons, I dismiss the application.
[68] The appellant is to pay the costs of the Regulator.
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