Stellas v Workers' Compensation Regulator
[2017] QIRC 97
•26 October 2017
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Stellas v Workers' Compensation Regulator [2017] QIRC 097 |
PARTIES: | Spiro Stellas v Workers' Compensation Regulator |
CASE NO: | WC/2016/88 |
PROCEEDING: | Appeal against a decision of the Workers' Compensation Regulator |
DELIVERED ON: | 26 October 2017 |
HEARING DATE: | 24 August 2017 |
| LOCATION: | Brisbane |
MEMBER: | Vice President Linnane |
ORDERS: | 1. The appeal is dismissed. 2. The decision of the Workers' Compensation Regulator dated 6 May 2016 is confirmed. 3. The Appellant is to pay the Workers' Compensation Regulator's costs of and incidental to the appeal to be agreed. 4. Failing agreement, liberty to apply is granted. |
| CATCHWORDS: | WORKERS' COMPENSATION – APPEAL AGAINST DECISION – calculation of weekly compensation – whether calculation correct – whether worker capable of performing suitable duties on pre-injury hours of work. |
| CASES: | Workers' Compensation and Rehabilitation Act 2003 s 144A, s 144B, s 162, s 163. |
| APPEARANCES: | Mr S. Stellas representing himself. |
Decision
On 26 September 2014 Mr Spiro Stellas (Appellant) sustained an injury described as a lower back strain in the course of his employment as a Sales Assistant with Super A-Mart Pty Ltd (employer). WorkCover Queensland (WorkCover) accepted the Appellant's claim for compensation for an "aggravation low back sprain/sciatica" and he was paid benefits under the Workers' Compensation and Rehabilitation Act 2003 (Act) from 29 September 2014.
On 23 April 2015, WorkCover issued written reasons as to its decision to terminate the Appellant's entitlement to compensation in accordance with s 144A and s 144B of the Act effective as of 21 April 2015. WorkCover had obtained information that indicated that the Appellant was performing tasks and activities that were inconsistent with what the Appellant had told Dr Imran Khurshid, his General Medical Practitioner, and WorkCover. At this time WorkCover notified Dr Khurshid of the information that WorkCover had obtained.
The Appellant then sought review of WorkCover's decision to the Workers' Compensation Regulator (Regulator). On 17 December 2015 the Regulator set aside this WorkCover decision finding that the Appellant had an ongoing entitlement from 21 September 2015 onwards. The Regulator noted in that decision that the Appellant had resigned his employment with Super A-Mart Pty Ltd in a letter of resignation dated 17 April 2015. The Appellant performed no duties for the employer following that date.
WorkCover then re-evaluated the Appellant's entitlement to compensation and made a further decision dated 16 February 2016 (Exhibit 11). In that decision WorkCover commented that the Appellant had resigned his employment at Super A-Mart on 21 April 2015 [sic] and that Super A-Mart were able to provide the Appellant with suitable duties as was outlined in the Graduated Return to Work Program dated 5 February 2015 (Exhibit 9).
It was further noted in that decision that the Appellant had visited Dr Imran Khurshid on 21 April 2015. At this time Dr Khurshid had declared the Appellant fit to perform pre-injury hours on suitable duties. WorkCover further noted that the next visit the Appellant made to a medical practitioner was on 11 January 2016 when he visited Dr Khurshid. It should be noted that the Appellant did consult with Dr Khurshid on 10 June 2015 as he required a medical certificate from his treating General Medical Practitioner for a job agency that Centrelink had referred the Appellant.
On the 11 January 2016 consultation, Dr Khurshid determined that the Appellant was not fit to perform pre-injury hours on suitable duties. On this occasion Dr Khurshid issued a Workers' Compensation Medical Certificate certifying the Appellant fit for suitable duties for three hours per day on alternate days.
It was on that basis that WorkCover determined that the Appellant was not entitled to any weekly compensation during the period 21 April 2015 to 11 January 2016. Relevantly that WorkCover decision stated:
"WorkCover Queensland ceased your claim effective 21 April 2015. You had this decision reviewed by the Workers' Compensation Regulator who set aside the decision of WorkCover Queensland to terminate your entitlement to compensation. The Regulator instructed WorkCover Queensland to determine your level of entitlement beyond 21 April 2015.
WorkCover Queensland can confirm that you resigned from Super Amart effective 17 April 2015. WorkCover Queensland can also confirm that Super Amart were able to provide suitable duties as outlined in the suitable duties plan dated 5 February 2015.
In a statutory declaration you provided to WorkCover Queensland on 27 January 2016 you confirmed that you had not returned to a calling after 21 April 2015 and had not found suitable work. You stated that you continued to take medication, get massages and perform heliotherapy and hydrotherapy for your injury.
WorkCover Queensland notes that you saw your treating GP on 21 April 2015 and then 11 January 2016. You did not see any other Doctor's [sic] during this time, therefore Dr Khurshid is the only medical practitioner who is able to comment on your capacity from 21 April 2015 until present.
On 9 February 2016, WorkCover Queensland received a report from Dr Khurshid regarding your capacity for work from 21 April 2015 to date. Dr Khurshid confirmed that you were fit to perform suitable duties on pre-injury hours from 21 April 2015. He then stated that from 11 January 2016 you were not fit to perform pre-injury hours on suitable duties. Dr Khurshid issued a workers' compensation medical certificate dated 11 January 2016 certifying you fit for suitable duties three hours per day on alternate days.
As you resigned from employment as of 17 April 2015, having regard to your capacity and the continued availability of employment, I consider that you could have reasonably expected to derive weekly earnings equivalent to those earned in the employment in which you were injured from 21 April 2015 to 10 January 2016, which is earnings of $1534.50 per week.
Applying the formula contained in s 163 of the Act, I therefore consider your weekly rate of compensation payable for your injury on account of your partial incapacity from 21 April 2015 to 11 January 2016 to be:-
$1304.33 ('MC') x $0 ('LE')
______________________ = $0 ('PC')
$1534.50 ('NWE').I therefore consider that entitlement to compensation from 21 April 2015 to 10 January 2016 under s 162 of the Workers' Compensation and Rehabilitation Act 2003 is $0 per week."
The Appellant then sought review of that decision to the Regulator who in Reasons for Decision dated 6 May 2016 confirmed the decision of WorkCover. It is against this decision of the Regulator that the Appellant lodged a Notice of Appeal in the Industrial Registry on 27 May 2016. The only aspect of the decision of the Regulator which is being appealed is the decision to calculate the Appellant's rate of weekly compensation at $0 between 21 April 2015 and 10 January 2016.
Thus the issue for determination in this appeal is whether the Appellant was incapacitated from performing the suitable duties program during the period 21 April 2015 to 10 January 2016 at pre-injury hours of work. The calculation of benefits is provided for in s 162 and s 163 of the Act.
Onus of Proof
The hearing of the appeal was conducted as a hearing de novo. The Appellant bears the onus of proving, on the balance of probabilities, that he is entitled to weekly workers' compensation during the period 21 April 2015 to 10 January 2016. Whilst the onus is to be discharged on the balance of probabilities, the Commission must feel an actual persuasion before the alleged facts can be found to exist.
Evidence
The Appellant relied upon the evidence of the following witnesses:
· the Appellant;
· Dr John Albeitz, Spinal Surgeon; and
· Dr Imran Khurshid, General Medical Practitioner.
The Regulator relied upon the evidence of the following witnesses:
· Mr Mark Norris, a Private Investigator who undertook surveillance of the Appellant whilst an employee of G4S Compliance & Investigation Pty Ltd (G4S); and
· Associate Professor Gregory Day, Orthopaedic Surgeon.
It was the evidence of the Appellant that as at 21 April 2017, up to and including 10 January 2016 he was unable to perform the suitable duties on his pre-injury hours.
Following the injury on 26 September 2014 it seems that the Appellant was off work for a period of about eight weeks. He then returned to work on or about 26 November 2014 working his normal five days of the week but working for only four hours per day. The Appellant said that he was feeling pain working these hours. It was as a consequence of advising his employer that he was feeling pain that a Graduated Return to Work Program (Exhibit 9) was formulated to commence on 5 February 2015 and end on 26 March 2015. That Graduated Return to Work Program was arranged through Focus Rehabilitation, and was signed off by Dr Khurshid on 9 February 2015, an Occupational Therapist on 5 February 2015 a Supervisor/Rehabilitation Co-ordinator on 10 February 2015 and the Appellant himself on 10 February 2015.
That Graduated Return to Work Program provided as follows:
·for the period 5 February 2015 - 24 February 2014 he was to work Friday, Sunday and Tuesday;
·whilst it is not mentioned in the Program, the Appellant was to work only three hours on each of those days of the week;
·for the period 27 February 2015 to 9 March 2016 he was to work normal days but only three hours per day;
·for the period 12 March 2015 to 23 March 2015 he was to work normal days for four hours per day;
·the duties he was able to perform during these seven weeks were customer service, explaining products, processing sales, internet searches, liaison with dock, shelving light accessories and assisting with stocktake;
·the duties he was restricted in performing during these seven weeks were avoiding lifting more than 2 - 3 kg, avoiding any spinal bending with twisting, no forceful pushing or pulling, avoiding sitting for more than 20 minutes where possible and the majority of work per day was walking and standing.
The Appellant continued to work for the employer during the February/March 2015 period on this Graduated Return to Work Program although he did not progress beyond the program outlined for the first three weeks i.e. he worked three hours per day on three alternate days. Thus he worked nine hours per week. Throughout this time the Appellant stated that he observed the guidelines set out in the Graduated Return to Work Program i.e. he was avoiding lifting more than 2-3 kg, avoiding any spinal bending with twisting, he was avoiding sitting for more than 20 minutes where possible and the majority of his work day involved walking and standing.
Dr Khurshid had, in January 2015, referred the Appellant to Dr John Albeitz, a Spinal Surgeon. Dr Albeitz saw the Appellant on 23 January 2015, 20 February 2015 and the last occasion was on 19 March 2015. At the February consultation with the Appellant, Dr Albeitz was happy for the Appellant to attempt gradually increasing activities and hours at work but he was to remain at a 5 kg lifting limit.
By the March visit to Dr Albeitz the Appellant had developed a return of the "severe radiating left leg pain" and he was referred for a new MRI. At this time Dr Albeitz stated that he would place a request with WorkCover for surgical intervention involving L5/S1 microdiscectomy and rhizolysis. Whilst a MRI was undertaken on 22 April 2015 it was not referred to any of the medical witnesses for comment.
The Appellant returned to Dr Khurshid in April 2015 requesting that he try to work a few hours per week. Dr Khurshid issued the Appellant with a Workers' Compensation Medical Certificate dated 8 April 2015 which indicated that the Appellant was fit for suitable duties from 3 December 2014 to 23 April 2015. The duties, restrictions, hours of work per day and the number of days per week were similar in nature to those outlined in the Graduated Return to Work Program. Dr Khurshid specifically noted in those Certificates that the Appellant was not to undertake bending/twisting/squatting or pushing/pulling.
A similar Workers' Compensation Medical Certificate was issued by Dr Khurshid on 14 April 2015. In a Workers' Compensation Medical Certificate issued by Dr Khurshid on 21 April 2015 there is no restricted on the hours of work the Appellant could perform duties although the Certificate still provides for "alternate days" of work. The Appellant was still only to perform "suitable duties". That Certificate indicated that the Appellant would be reviewed again on 5 May 2015.
Prior to the latter two Certificates the Appellant had been the subject of surveillance.
Surveillance: On or about 7 April 2015 WorkCover sought from G4S a period of surveillance of the Appellant so as to establish his then level of activity and/or level of incapacity. Mark Norris undertook surveillance of the Appellant on 8 April 2015 at The Greek Style Café at 382 Tamborine-Oxenford Road, Upper Coomera (Café). This Café was operated by the Appellant's sister and the Café that he, on 14 April 2015, invested $25,000.00 of his own funds. A Report of the Surveillance Investigation (including the video of the surveillance) was provided to WorkCover on 17 April 2015 (Surveillance Report) and is Exhibit 13.
The description of the person under surveillance in the Report met the description of the Appellant and the Appellant did not deny that he was a person in the video surveillance on both 8 and 9 April 2015. On 8 April 2015 Mr Norris was able to enter the premises to observe the Appellant.
The Surveillance Report provided an Observation Summary as follows:
"Surveillance was conducted on the above dates, during which time the Claimant was observed performing work on both dates at his café at 'The Greek Style Cafe', 382 Tamborine Oxenford Road Upper Coomera.
Further instructions were received, and as a result surveillance was conducted in the vicinity of 382 Tamborine Oxenford Road Upper Coomera on 14 & 15 April 2015.
On Tuesday 14 April 2015 the café was closed however people were sighted performing work within the premises. On Wednesday 15 April 2015 the café was open for trading, however on both 14 and 15 April 2015 the Claimant was not sighted within the premises."
In the Video Evidence Summary of the Surveillance Report the total length of video was 5 minutes and 32 seconds and was taken on 8 and 9 April 2015. The details provided in the Report were as follows:
"On Wednesday 8 April 2015 we exposed footage of the Claimant engaged in the following:
·Present in the kitchen area of the café
·Wearing a black apron
·Moving around within the kitchen area
·Bending and squatting
·Handling kitchen implements
·Observed with a tea towel on his shoulder
On Thursday 9 April 2015 we exposed footage of the Claimant engaged in the following:
·Present in the kitchen area
·Engaged in food preparation
·Bending".
Mr Norris' field notes for 8 April 2015 as provided for in the Surveillance Report is as follows:
"Arrive in the vicinity of 382 Tamborine Oxenford Road Upper Coomera for the purpose of conducting an initial check and possible surveillance if feasible.
This property [sic] a stand-alone building mark 'Greek Style Café'.
There is a small customer entrance at the front of the building. After confirming during daylight it was not possible to expose footage within the inside of the building, entered the café.
On approaching the counter sighted a male person believed to be the Claimant seated in a booth in the foyer area to the right, with the kitchen and counter being on the left. There were two small children seated in the booth with the Claimant who he appeared to be supervising.
The Claimant is described as appearing slightly older than his stated age, approximately 172 - 175 cm, slim build, olive complexion, balding with grey prickle hair style at the sides.
On ordering a coffee at the counter the Claimant remained in the booth.
The café displayed a dinner menu, and a dining area was situated in a building that appeared to be an extension to the main building, with entrance and exit to the counter area via a door that appeared to have once been an access door. There was also a small window with a partial view from the dining area.
After discussing evening dining with the waitress at the counter departed the café and cease with the intention of returning during the evening for a meal. The Claimant had remained seated in the booth with the two small children.
Arrived in the vicinity of the Greek Style Café, 382 Tamborine Oxenford Road Upper Coomera.
After parking entered the foyer area with a hidden camera, on entering this area, the Claimant, who was behind the counter in the kitchen area, stepped out and ushered me to the dining area.
The Claimant was wearing black trousers, a white singlet and a black apron.
After entering the dining area confirmed there was limited vision to the kitchen area due to vision only through the doorway and small window.
Remained in the dining area and ordered food so as to be able to stay seated without attracting suspicion.
Exposed a short segment of footage of the Claimant as he stood with a staff member behind the counter before walking from view.
Footage was then exposed of the Claimant where possible when the Claimant was in view for brief periods.
His activities included:
·Moving about within the kitchen area
·Squatting down out of view and rising to a standing position
·Appearing to talk to other staff
·Retrieving what appeared to be kitchen implements
·At one point walking around with a tea towel on his shoulder
After finishing all served food and being offered a bill proceeded to the counter and paid the waitress. An attempt was made to expose footage of the Claimant however on arriving in this area the Claimant walked off and into what appeared to be a storeroom."
That surveillance ceased at 7:40pm on 8 April 2015.
On 9 April 2015 the surveillance time was 2.5 hours and the video time was 3 minutes and 2 seconds. The activity on 9 April 2015 as recorded in the Surveillance Report was as follows:
"Observations begin at the Greek style restaurant located at 382 Tamborine Oxenford Road, Upper Coomera Qld 4212 in an effort to locate the Claimant Stellas.
The restaurant is open and several members of staff can be observed through the open front door. The Claimant not identified.
With no confirmed sighting of the Claimant a position was taken within the restaurant. The Claimant who was wearing a white coloured t-shirt was working continuously behind the counter preparing food.
Claimant observed bending behind the counter.
Claimant observed working at the cooker area.
Claimant now working at a table.
Claimant again working at the cooker and has a cooking utensil in his right hand.
Claimant has towels in his hand
A position again taken outside the premises.
On walking past there have been no further sightings of the Claimant it is possible he has departed from the rear.
No further sightings and observations suspended."
That surveillance was suspended at 8:00pm.
On 14 April 2015 the Café was closed although internal lights were on at the premises. Whilst there was activity at the Café the Appellant was not sighted. Whilst the Café was open on 15 April 2015 the Appellant was not sighted.
The Appellant agreed that the video surveillance was of him in the Café on both 8 and 9 April 2015.
It should be noted that the request to G4S by WorkCover only occurred on 7 April 2015 and the surveillance was undertaken on the two following days. He had not resigned from his employment at this time. The first of those surveillance days, 8 April 2015, the Appellant was seen at the Café around midday and again in the evening. It was also a day when the Appellant visited Dr Khurshid and obtained a Workers' Compensation Medical Certificate i.e. Exhibit 3. On 9 April 2015, the second of the surveillance days, Dr Khurshid had issued a Workers' Compensation Medical Certificate saying the Appellant was fit to work on alternate days.
Resignation: The Appellant indicated that his sister was opening a café and that she had asked him if he was interested in being a silent partner and providing investment funds. The Appellant said that he thought this was very appropriate because he "would not have to do any strenuous work". He did not say that he would not have to do any work. The Appellant decided on 14 April 2015 that he would invest $25,000.00 in cash in this business. The surveillance of the Appellant by G4S on 8 and 9 April 2015 was thus at a time prior to him investing the $25,000.00 in the business.
In an e-mail forwarded on 17 April 2015, the Appellant resigned his employment with the employer. Whilst he gave two weeks' notice of his intention to resign, the Appellant did not work for the employer following 17 April 2015.
The evidence of the Appellant is that he only worked for the employer two to three days following receipt of Dr Khurshid's Workers' Compensation Medical Certificate dated 8 April 2015. The Appellant agreed that he chose to resign his employment with the employer after only giving Dr Khurshid's suitable duties program a two or three day trial.
Whilst the Appellant saw Dr Khurshid on 10 June 2015 it was because he had been referred to a job agency by Centrelink and he had informed that job agency that he was not fit for certain duties. The job agency required a medical report from his General Medical Practitioner. That was the reason for the visit. The correspondence issued by Dr Khurshid on this occasion provided as follows:
"10/6/15
TO WHOM IT MAY CONCERN
Re:Mr Spiro Stellas
35 Magnetic Drive
EAGLE HEIGHTS 4271
…
I have seen Mr Spiro Stellas, age 49 yrs, today.
He is not fit for normal full duties because of sciatica.
…"
The fact that the Appellant resigned his employment with the employer in circumstances where that employer was able to provide the Appellant with suitable duties, results in the Appellant not being entitled to weekly compensation for any period where the medical evidence confirmed that he was capable of performing all the pre-injury hours of work.
Dr Khurshid's Response to WorkCover dated 21 April 2015: On 17 April 2015 WorkCover forwarded a facsimile transmission to Dr Khurshid seeking his response to certain questions. That facsimile provided as follows:
"Dear Dr Imran Khurshid
Subject:Spiro Stellas, date of birth 9 March 1966
You recently reviewed Spiro Stellas in relation to his capacity for work on 14 April 2015. In a conversation with yourself and the writer on 15 April 2015 you confirmed that Spiro was in a really bad shape and could not sit for more than 20-30 mins and couldn't stand for longer than 20-30 mins as [sic] is in pain and that Spiro mainly just lies down.
WorkCover Queensland contacted Spiro Stellas on 15 April 2015 who confirmed he was in extreme pain, mostly bed ridden, but then he has to get up every couple hrs to move around, and then lay back down again. Spiro indicated he was unable to work in any capacity and in fact could not even complete the most basic household task. Spiro further advised "I cant [sic] even bend my head down".
Due to information provided to WorkCover Queensland surveillance was undertaken which indicates the worker has been participating in tasks which would indicate a capacity to work and is inconsistent with what was reported to WorkCover Queensland and yourself based on [sic] conversation on 15 April 2015.
In addition, when questioned on 17 April 2015 about his ownership of the café (being the cafe in the footage) the worker has stated he has been completing bookwork for half hour only per week however denies any other activity.
Please review the attached photographs and report. Should you wish we are happy to provide the surveillance footage.
Your urgent response to this fax will help WorkCover Queensland in relation to this matter. Please contact me on ….
Medical
1. In your medical opinion has Spiro accurately reported his injury and symptoms to you, taking into account the footage obtained?
No
2. Solely considering the surveillance in your medical opinion do you believe Spiro is still incapacitated for work and please provide your medical opinion why? Please comment whether you were aware Spiro was performing these activities?
No
I was not aware of his [sic] any other activity than worker at a furniture shop.
3. Considering the activities the worker is performing in the surveillance footage how would this impact Spiro's recover and treatment?
It will delay Spiro's recovery
4. Do you believe Spiro continues to suffer from a work related injury?
Not sure"
It was apparent from Dr Khurshid's evidence that he did not view the surveillance footage prior to making the abovementioned statements. Dr Khurshid said that he had the Surveillance Report and photographs prior to responding to this WorkCover correspondence. Dr Khurshid did however state that he had seen the surveillance video but could not give a date of viewing the video.
The Regulator, on review, referred the matter back to WorkCover noting in the decision dated 17 December 2015 the following:
"I note Dr Khurshid did not view the surveillance footage obtained by WorkCover in addressing your capacity for work, and was not asked to comment on whether your work related injury required further treatment. Therefore the Regulator sent a request to WorkCover dated 28 October 2015, in accordance with section 544 of the Act, to obtain a response from Dr Khurshid addressing your capacity for work, and requirement for treatment beyond 21 April 2015. Alongside this request the Regulator requested Dr Khurshid be provided with a copy of the surveillance investigation report and corresponding surveillance footage …"
In correspondence dated 4 February 2016 to Dr Khurshid, WorkCover obtained the following relevant response after outlining the suitable duties that Super A-Mart Pty Ltd could offer the Appellant:
"Capacity
1. Taking into consideration the surveillance footage and the suitable duties that were available to Spiro prior to him resigning from Super A-mart on 17 April 2015, in your medical opinion, could Spiro have performed the above suitable duties on pre-injury hours from 21 April 2015 due to the work related aggravation? If not, please advise why.
Yes"
Except for the specific visit on 10 June 2015, the Appellant did not see Dr Khurshid, or any other medical practitioner, between 21 April 2015 and 11 January 2016. This is despite him not receiving any weekly compensation benefits during that period. The Appellant was asked by WorkCover to see Dr Day, Orthopaedic Surgeon, on 10 March 2016. The Appellant said that he was not satisfied with Dr Day's assessment and sought a second opinion. WorkCover then sent the Appellant to an Orthopaedic Medical Assessment Tribunal for an assessment of any permanent disability.
Medical Evidence
Dr Imran Khurshid: Unfortunately Dr Khurshid, the Appellant's General Medical Practitioner, left the Bethania Surgery in January 2017 and did not have the Appellant's Patient Records from the Surgery when he gave his evidence in this proceeding via telephone. Whilst the Appellant had possession of his Patient Records from the Bethania Surgery he had not provided them to Dr Khurshid prior to him giving evidence. The Regulator had provided Dr Khurshid with the records it wished to raise with him.
This made it very difficult for the Appellant to obtain any relevant evidence from Dr Khurshid, for without that Patient Record, his independent recollection of events in 2014 and 2015 was non-existent except for a couple of instances e.g. that the Appellant suffered a back injury.
I have already dealt with the evidence adduced from Dr Khurshid by the Regulator.
Dr John Albeitz: Dr Albeitz is a Spinal Surgeon and, as previously indicated, he saw the Appellant last on 19 March 2015. On that day he referred the Appellant for a further MRI and made a request of WorkCover for surgery. Given Dr Albeitz's account of the Appellant's symptoms on the visit in March 2015 it would seem that the Appellant may not have been able to perform the pre-injury hours in March 2015.
Dr Gregory Day: Dr Day is an Orthopaedic Surgeon who conducted an independent examination of the Appellant on 10 March 2016 when he was asked to assess the Appellant's degree of permanent impairment. Dr Day provided a medical report dated 10 March 2016 (Exhibit 18). In providing his medical report, Dr Day had before him substantial documentation including the following:
· Dr Albeitz's medical report dated 23 January 2015;
· Dr Albeitz's medical report dated 19 March 2015 (Exhibit 16);
· the x-ray and MRI lumbar spine report dated 15 January 2015;
· requests from Dr Albeitz for micro-discectomy;
· a CT scan of lumbar spine dated 5 March 2013;
· a MRI report dated 22 April 2015 sought by Dr Albeitz (Exhibit 17);
· Dr Khurshid's report to WorkCover signed 21 April 2015 (Exhibit 14);
· Dr Khurshid's report dated 17 November 2015;
· Dr Khurshid's report to WorkCover signed 9 February 2016 (Exhibit 15);
· the Graduated Return to Work Program of Focus Rehabilitation (Exhibit 9); and
· various Workers' Compensation Medical Certificates commencing 29 September 2014.
Dr Day examined the Appellant on 10 March 2016 i.e. eleven months after the date when Dr Khurshid reported the Appellant fit to perform pre-injury hours of work. As at 10 March 2016 Dr Day opined that the Appellant's injury was then stable and stationary although the effects of the work-related injury had not ceased. What is noted in his medical report dated 10 March 2016 was that Dr Day reviewed a CT scan of the Appellant's lumbar spine dated 5 March 2013 which demonstrated a broad-based L5/S1 disc bulge. He also viewed an MRI lumbar spine report dated 15 January 2015 which demonstrated that the upper four lumbar discs were normal and that there was an L5/S1 disc bulge to the left. Dr Day further viewed the repeated MRI report dated 22 April 2015 which demonstrated no change in the size of the disc bulge.
Submissions
Regulator: The Regulator submitted that by his Statement of Facts and Contentions filed on 20 June 2017 the Appellant contended that he was incapacitated for work between 21 April 2015 and 10 January 2015. WorkCover concluded, based upon the medical evidence, that following the Appellant's resignation on 17 April 2015 that he was able to perform suitable duties on his pre-injury hours from 21 April 2015 until about 10 January 2016.
WorkCover appointed an investigator to conduct surveillance on the Appellant and, according to the Regulator, that surveillance showed the Appellant working at a restaurant trading as "The Greek Style Café" located on 382 Tamborine-Oxenford Road, Upper Coomera. The investigator provided the Surveillance Report dated 17 April 2015 together with video surveillance (Exhibit 13). That surveillance showed the Appellant working behind the service counter at the Café on 8 and 9 April 2015. This was at a time when the Appellant was still employed by Super A-Mart Pty Ltd.
That Surveillance Report and video were taken into account by the Regulator in the determination of its review decision.
The Regulator submitted that the question for determination is whether, on all of the evidence, including the medical evidence, the Appellant was fit to perform suitable duties on his pre-injury hours from 21 April 2015 until 10 January 2016. The Regulator submitted that there was ample evidence in respect of which the Commission could come to this conclusion.
In this regard the Regulator submitted that the Commission should find that the Appellant resigned from his employment with Super A-mart effective 17 April 2015. Prior to this time he was found by the investigator to have been working at the Café at Upper Coomera i.e. on 8 and 9 April 2015. Further, the Commission can rely upon the video footage to establish that the Appellant was performing duties at that business.
The Regulator further relied upon the two reports of Dr Khurshid to WorkCover i.e. Exhibit 14 signed 21 April 2015 and Exhibit 15 signed on 9 February 2016. In his report of 21 April 2015 Dr Khurshid indicated that after reading the Surveillance Report and seeing the photographs contained therein, he did not believe the Appellant was still incapacitated for work. In Exhibit 15, Dr Khurshid indicated that the Appellant could perform the identified suitable duties on the Appellant's pre-injury hours from 21 April 2015 but that he could not so perform those hours after 11 January 2016.
Thus the Regulator submitted that the Appellant was capable of performing the suitable duties outlined in Dr Khurshid's response to the correspondence from WorkCover signed by Dr Khurshid on 9 February 2016. Dr Khurshid stated that the Appellant was capable of performing those suitable duties on pre-injury hours as at 21 April 2015. Had the Appellant not resigned his employment effective 17 April 2015 he thus would have been able to earn his full wages at Super A-Mart from 17 April 2015.
The calculation of WorkCover in its decision dated 16 February 2016, and the confirmation of that calculation by the Regulator in its decision dated 6 May 2016, relied upon the formula outlined in s 163 of the Act. Thus the Regulator contends that the Appellant's entitlement to weekly compensation during the period 21 April 2015 to 10 January 2016 was nil.
Appellant: The Appellant submitted that the evidence was "not conclusive" to show that he could have worked 38 hours per week during the relevant period. The Appellant was advised that he had the onus of proving that the decision of the Regulator was wrong.
The Appellant further submitted that prior to 21 April 2015 his lower back injury was deteriorating and the pain was increasing. The Appellant relied upon the Workers' Compensation Certificates of 8 April 2015 and 14 April 2015 from Dr Khurshid which limited the hours of duty to three hours per day on alternate days. The Appellant also relied upon Dr Khurshid's Certificate dated 21 April 2015 which indicated that he could only work on alternate days. The Appellant further relied upon the fact that when Dr Khurshid responded to WorkCover on 21 April 2014 he had not seen the surveillance video.
It was unfortunate that the Appellant was unable to ask Dr Khurshid why the Workers' Compensation Medical Certificate dated 21 April 2015 differed from his response to WorkCover dated the same day. In the Workers' Compensation Medical Certificate it is stated that the Appellant was fit for suitable duties, that he was to be reviewed again on 5 May 2015 and that whilst the hours of work were not restricted the Certificate does provide that he is restricted to alternate days of work. As mentioned previously Dr Khurshid did not have before him the Appellant's Patient Record from the Bethania Surgery where Dr Khurshid previously practiced medicine.
Because of Dr Khurshid's inability to recall much about the Appellant's injury the Commission is left with no explanation as to why Dr Khurshid changed his opinion on the same day i.e. from the Appellant being able to perform his pre-injury hours and days of work to the Appellant being able to perform duties on pre-injury hours on alternate days. The correspondence from WorkCover is dated 17 April 2015 and it was forwarded to Dr Khurshid via facsimile. According to the Appellant's evidence, Dr Khurshid had seen the Surveillance Report of G4S when the Appellant saw Dr Khurshid on 21 April 2015.
Unfortunately no response from Dr Khurshid was sought or obtained as to the discrepancy. I can only conclude that Dr Khurshid was influenced by the Surveillance Report of G4S and the photographs contained therein when issuing his response to WorkCover on 21 April 2015. It was not unreasonable that Dr Khurshid would have been influenced by that Surveillance Report.
Conclusion
The Appellant bears the onus of proving that the Regulator's decision should be set aside. There clearly appears to be anomalies in the medical evidence: e.g.:
· Dr Khurshid's response to WorkCover signed on 21 April 2015 where he stated that the Appellant is not still incapacitated for work and Dr Khurshid's response to WorkCover signed on 9 February 2016 wherein he clearly stated that the Appellant was, on 21 April 2015, fit to perform the suitable duties outlined in that correspondence on his pre-injury hours of work with no restriction on the number of days on which that work would be performed;
· Dr Khurshid's Workers' Compensation Medical Certificate dated 21 April 2015 wherein he indicated that the Appellant was not restricted in the number of hours per day he could perform duties but was restricted to working alternate days; and
· Dr Albeitz's request to WorkCover in March 2015 for approval for surgical intervention for the Appellant, having examined the Appellant on 19 March 2015.
The evidence of Mr Norris together with the G4S Surveillance Report and the video surveillance show that the Appellant was working at the Café on 8 and 9 April 2016. It was not as if G4S waited for some time to catch the Appellant working at the Café. G4S received their instructions on 7 April 2015 and the surveillance was conducted on the following two days. As indicated previously, on one of those days, the Appellant had consulted with Dr Khurshid and obtained a new Workers' Compensation Medical Certificate limiting the time he could perform duties.
I took particular note of the video surveillance of the evening of 8 April 2015 as to the easy manner in which the Appellant bent down to collect something and returned to a standing position. Of further note, was the Appellant's easy manner in squatting, remaining in a squatted position and then returning to a standing position in the video surveillance of the evening of 8 April 2015. These actions occurred on the day he visited Dr Khurshid complaining of pain, and after Dr Khurshid had issued the Workers' Compensation Medical Certificate indicating that he was prevented from bending and squatting in the performance of his duties at the employer. The Appellant was also observed bending behind the counter on 9 April 2015.
Given the Surveillance Report and the photographs contained therein, Dr Khurshid could well have been satisfied on 21 April 2015 that the Appellant had not been truthful with him about his symptoms. It could also have been an error that Dr Khurshid failed to remove the term "alternate days" from the Workers' Compensation Medical Certificate issued to the Appellant on 21 April 2015. Neither of those scenarios were addressed in the evidence.
The following activity on the part of the Appellant was persuasive in my determination that the Appellant was working at the Café on 8 and 9 April 2015 rather than just preparing food for himself and his family:
· that the Appellant was present in the kitchen area of the Café on the evening of 8 April 2015 and on 9 April 2015;
· that he ushered the investigator into the dining room on 8 April 2015;
· that he wore a black apron on the evening of 8 April 2015;
· that he was handling kitchen implements on the evening of 8 April 2015;
· that he was observed with a tea towel on his shoulder on the evening of 8 April 2015;
· that he was engaged in food preparation on 9 April 2015; and
· that he was working at a table on 9 April 2015.
I have previously found that the Appellant's resignation from employment with Super A-Mart Pty Ltd on 17 April 2015 resulted in him not being entitled to weekly compensation for any period where the medical evidence confirmed that he was capable of performing all the pre-injury hours of employment.
As the Appellant bears the onus of proof, I find that the Appellant has not been able to satisfy me on the balance of probabilities, that the medical evidence relied upon by the Regulator should not be accepted. The Appellant as such has not satisfied me that he was incapacitated for work between 21 April 2015 and 10 June 2016 and that he could not perform his pre-injury hours of employment during that period.
That being the case I dismiss the appeal. I confirm the decision of the Regulator dated 6 May 2016 and further confirm the calculation of weekly compensation payable to the Appellant at $0 for the period 21 April 2015 and 10 January 2016.
The Appellant is to pay the Workers' Compensation Regulator's costs of and incidental to the appeal to be agreed. Failing agreement, liberty to apply is granted.
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