Stokes v Workers' Compensation Regulator - [2021] QIRC 211

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Stokes v Workers' Compensation Regulator [2021] QIRC 211
PARTIES:	Stokes, Cheryl Therese (Appellant) v Workers' Compensation Regulator (Respondent)
CASE NO:	WC/2019/93
PROCEEDING:	Appeal against decision of Workers' Compensation Regulator
DELIVERED ON:	14 June 2021
HEARING DATE:	21 & 22 July 2020
MEMBER:	Industrial Commissioner Dwyer
HEARD AT:	Brisbane
ORDER:	1. The appeal is allowed; and 2. The Respondent pay the Appellant’s cost of and incidental to the appeal.
CATCHWORDS:	WORKERS' COMPENSATION – APPEAL – personal injury – aggravation of degenerative lumbar spine – over a period of time claim – competing medical expert opinion evidence – reliability of medical expert – reliance on epidemiological data
LEGISLATION:	Workers' Compensation and Rehabilitation Act 2003 (Qld) s 32
CASES:	Peebles v Work Cover Queensland [2020] QSC 106
APPEARANCES:	Mr D.G.H Turnbull of counsel, instructed by Ms S Francis of Bounty Law for the appellant Mr C.J Clark of counsel, instructed by Ms R Moroney of the Workers' Compensation Regulator

Reasons for Decision

Background to Appeal

This is an appeal against a decision of the Workers' Compensation Regulator ('the Regulator') dated 3 May 2019 (‘the decision’). The appellant, Ms Cheryl Stokes, commenced employment with Coles Supermarkets Australia Pty Ltd ('Coles') in 2007 as a shelf filler at the Coles supermarket in Yeppoon.
On 17 January 2008, Ms Stokes sustained an injury to her lower back in the course of her employment. She made a claim for compensation in relation to this injury and the claim was accepted for medical expenses through until March 2008 (‘the 2008 claim’). She was certified as fit to return to normal duties by March 2008 and her benefits ceased.
Ms Stokes contends that she continued to work as a shelf filler after the 2008 claim with persistent and increasing levels of lower back pain. She continued to routinely perform her duties which included unloading trolleys and placing boxes of stock onto high shelves. Ms Stokes contends that she pressed on with work despite her discomfort and treated her symptoms with varying methods including heat packs, massage and physiotherapy.
In or about December 2012, the system of work altered and Ms Stokes was no longer required to undertake the heavy lifting tasks.
By 2012, her lower back pain had reached a point where she had sought a specialist opinion. Initial opinion from her treating orthopaedic specialist at the time was to manage the condition with exercises and prescription medication. By 2014, with her symptoms continuing, the spectre of surgery emerged. Ms Stokes eventually underwent spinal surgery in March 2017.
In February 2017, Ms Stokes sought to re-open the 2008 claim. Her application for re-opening was rejected and Ms Stokes did not pursue an appeal of that decision.
In November 2017, subsequent to her surgery, Ms Stokes filed a Notice of Claim for Damages ('NOC') seeking common law damages. The injury claimed in the NOC is for an 'Over Period of Time' injury sustained to Ms Stokes' lower back whilst working at Coles as a shelf…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Stokes v Workers' Compensation Regulator

Details

AGLC: Stokes v Workers' Compensation Regulator [2021] QIRC 211
Case: [2021] QIRC 211
Decision Date: 14 June 2021

CaseChat Overview and Summary

Stokes v Workers' Compensation Regulator involved a dispute regarding a claim for ongoing pain (OPT) under workers' compensation laws in Australia. The appellant, Ms Stokes, sought compensation for ongoing pain in her lower back, which she claimed resulted from her employment duties at Coles Yeppoon, where she worked as a night shelf filler. The primary dispute was whether Ms Stokes' employment was a significant contributing factor to the aggravation of her pre-existing degenerative lumbar spine condition. The case was heard and determined in the Queensland Civil and Administrative Tribunal (QCAT).

The court was required to decide several legal issues, including whether Ms Stokes had sustained a personal injury as defined by the Workers' Compensation and Rehabilitation Act 2003, whether this injury arose out of or in the course of her employment, and whether her employment was a significant contributing factor to the aggravation of her condition. The primary factual controversy centred on whether Ms Stokes experienced ongoing pain after her initial injury in January 2008 and whether this pain was attributable to her employment duties.

The court found in favour of Ms Stokes, accepting her evidence about the repetitive lifting and handling tasks she performed, which she claimed caused ongoing pain. The tribunal preferred the expert evidence of Dr Low, an orthopaedic surgeon, over Dr Licina's opinion. Dr Low opined that Ms Stokes' condition was aggravated by her work practices after the initial injury in January 2008, contributing to the ongoing pain. The tribunal concluded that Ms Stokes had sustained a personal injury, that this injury arose out of or in the course of her employment, and that her employment was a significant contributing factor to the aggravation of her condition. Consequently, the tribunal allowed the appeal and ordered the respondent to pay the appellant's costs of and incidental to the appeal.

Orders

Orders of the court

1. The appeal is allowed; and

2. The Respondent pay the Appellant’s cost of and incidental to the appeal.

Background

Background to the litigation

The appellant bears the onus of proving the claim is one for acceptance. The standard of proof is the balance of probabilities. Relevant facts Work performed The appellant worked for Coles Yeppoon from May 2007 as a night shelf filler. The role typically requires unpacking stock and placing it onto shelves of the supermarket. The facts asserted by Ms Stokes regarding the work she performed were not materially contradicted by the Regulator. In those circumstances I am prepared to accept the evidence given by Ms Stokes describing the duties she performed, and in particular, I accept her description of the repetitive lifting practices that she said she undertook throughout her shifts. In addition to the evidence given at the hearing, a statement signed by Ms Stokes on 31 October 2017 was introduced into evidence during her cross examination.[2] The statement, insofar as it describes the duties performed by Ms Stokes, was generally consistent with her oral evidence at hearing. Ms Stokes was not challenged by the Regulator on those aspects of her statement. Given there is no controversy over these facts it is not necessary for me to list the duties in detail. [2] Exhibit 2. In summary, I accept that prior to the January 2008 injury Ms Stokes’ duties included lifting, handling and manoeuvring heavy boxes of stock during the whole of the shift for a period of five to six hours per shift. A typical shift in the pre-January 2008 injury period would include loading a trolley with boxes in the storeroom, pushing the trolley into the public area, and replenishing shelves. The task of replenishing shelves included bending and lifting boxes of stock and, in particular, it routinely required Ms Stokes to stand on her toes to lift heavy boxes of stock onto upper shelves. Some of the boxes weighed between 12-15kgs. Ms Stokes experienced the first onset of pain in her lower back in January 2008 while performing these tasks. After a period of approximately four weeks of light duties, Ms Stokes was certified fit to return to normal duties. Ms Stokes says that notwithstanding her clearance, her duties were modified after January 2008 to exclude the task of loading boxes onto the trolley in the storeroom however, the other tasks described above continued to be part of her routine duties until approximately December 2021. Ms Stokes contends that the duties she performed, as described above, continued to cause pain in her lower back after her return to normal duties. She contends that she was never free of pain in her lower back after the injury in January 2008, and that her condition slowly worsened over the next three years. It is these contentions about ongoing pain that give rise to the factual controversy in this matter.Ongoing pain in lower back Ms Stokes maintains that her back pain never ceased after the incident in January 2008. She states that the modification of her duties did not eliminate many of the lifting tasks, and that these tasks produced pain in her lower back.[3] The pain continued and worsened over the next three to four years. It is this evidence that forms the factual basis of the OPT claim. [3] Transcript dated 21 July 2020, page 32; Exhibit 2, paragraph 12-13.

Evidence

Evidence Before The Court

From my observations of her, Ms Stokes is a woman well stocked with stoicism. Her evidence was that she put up with the pain. I accept her explanation, and in doing so, I accept her evidence about ongoing pain between 2008 and 2012 and the circumstances under which she says she experienced it. The expert medical evidence Dr Low is an orthopaedic surgeon with more than 40 years of experience in medical practice. He is a general orthopaedic surgeon. His qualifications as an expert were not in issue. Dr Low provided two medico-legal reports in relations to Ms Stokes, dated 19 July 2017 and 28 November 2017. Dr Low also gave evidence at the hearing of this matter and broadly adopted the opinions contained in his reports. In his reports, Dr Low apportions 50% of the cause of the condition of Ms Stokes’ lower back to the injury which occurred on 17 January 2008 (which he regards as an aggravation of her degenerative condition), and 50% to ongoing aggravation arising from work practices during the OPT period. I note that Dr Low does not, at any point, opine that Ms Stokes’ spinal degeneration was caused by her employment. In simple terms, the view of Dr Low is that Ms Stokes had a naturally occurring degenerative condition in her lower spine. It was aggravated in January 2008, at which point the condition became symptomatic. Thereafter, as a consequence of work practices, Ms Stokes continued to aggravate her degenerative condition over a 3-4 year period. During his evidence in chief, Dr Low expanded on his opinion by describing the injury the subject of the OPT claim as ‘…an ongoing degenerative process with some acceleration from physical activity’.[6] [6] Transcript dated 22 July 2020, page 10, line 10-15. Under cross examination Dr Low appeared to modify his opinion somewhat, in that he appeared to apportion 50% of the symptoms to the underlying degenerative condition, and 50% to the aggravations in the workplace i.e. the January 2008 incident and the ongoing aggravations during the OPT period.[7] As an aside to this, I consider that whether the workplace practices between 2008 and 2012 contributed 50% or 25%, it would still be a significant contribution in my view. [7] Transcript dated 22 July 2020, page 17, line 15-25. Also, under cross examination Dr Low was asked to comment on the academic papers of Ms Michelle Battie that inform Dr Licina’s opinion. He was familiar with the general tenor of these papers, but not the papers themselves. He was dismissive of them, saying:[8]…there’s 10000 different papers on this subject. I mean, they don’t all agree…with each other.…this is not proven science by any means. [8] Transcript dated 22 July 2020, page 17, line 35-45 and page 18, line 1-16. On the whole, Dr Low preferred to rely on his forty years as an orthopaedic surgeon as support for his opinion as to the work-related contribution to Ms Stokes’ injury. Dr Licina Dr Licina is an orthopaedic surgeon with 20 years of experience. He has a specialty within the specialty of orthopaedics in respect of spinal conditions. Dr Licina’s specialist qualifications were not in dispute. Dr Licina examined Ms Stokes and provided an initial medico-legal report dated 6 April 2017.[9][9] See Exhibit 5.

Decision

Reasons for decision

Finally, the question of factual causation in this matter is not a matter of statistical association based on analysis of relevant studies. It is whether, on the balance of probabilities, Ms Stokes has proved factual causation.[15] In my view she has. Conclusions[15] Peebles v Work Cover Queensland [2020] QSC 106, [85]. Worker There is no dispute that Ms Stokes was a ‘worker’ within the meaning of the Act.Personal injury Section 32 defines injury as inter alia ‘a personal injury’. Personal injury is further defined in s 32(3) in broad terms that include a disease or the aggravation of a disease. Both medical experts agreed that the pain experienced by Ms Stokes at work during the OPT was consistent with an aggravation of her degenerative disease. It follows that I conclude that Ms Stokes has sustained a personal injury within the meaning of the Act. Arose out of, or in the course of employment Both medical experts concluded that the pain experienced by Ms Stokes during her employment was suggestive of an aggravation of her degenerative spine. Further, there was no evidence that Ms Stokes had her back pain activated in any significant way by activities other than her work practices. I therefore conclude that the aggravation of Ms Stokes’ condition arose out of or in the course of her employment. Whether employment was a significant contributing factor It was this element of the s 32 of the Act that was centrally in contest in this appeal. Dr Low was clear in his view that Ms Stokes’ spinal degeneration was aggravated following the incident in 2008 and was further aggravated by the work practices over those years following that incident. For the reasons set out above I accept the evidence of Dr Low. It follows that I find that Ms Stokes’s employment was a significant contributing factor. Order I make the following order:

Ratio Decidendi

Legal Principle Established

During his evidence Dr Licina responded to questions I put to him as follows:[12] COMMISSIONER: …Can I ask you this, Dr Licina; in reference to the articles that you have provided with your evidence; these as I read them are articles that deal with the causes, or the origins, of disc degeneration; do I understand that correctly?---Yes.And so, putting aside for the moment the causes of disc degeneration, it is not controversial is it that a degenerated disc is then liable to aggravate the condition, depending on certain physical activities, not in every case, but it is not controversial that people will aggravate that degenerative process through physical activity of one form or another?---Yes.And the aggravation usually presents in the form of pain?---Correct.So where we described before, and I think where you were talking about before, where we have Miss Stokes with an already pre-existing degenerative condition in her lumbar spine, routinely lifting boxes down from shelves and that producing pain; that pain is evidence of an aggravation of that degenerative process?---This is where I took into account the severity and duration of the pain and I would [indistinct] more an exacerbation rather than an aggravation considering that the pain lasted for four to six weeks and resolved to a point where she no longer required medical care and more time off work. This is why I place less emphasis on that and consider [indistinct] rather than [indistinct] carried any weight onwards in the next few years.If I were then to accept, however, evidence from Ms Stokes that over the period from the beginning of 2008 and onwards over the course of the next three years or so she routinely experienced pain in her lower back arising from these activities; that would be consistent with your previous answer with respect to the pain being evidence of aggravation?---Correct Okay. Anything arising out of that, Mr Clark or Mr Turnbull? Mr Clark first?MR CLARK: Not for me, no.(Emphasis added)[12] Transcript dated 22 July 2020, page 46, line 10-45. For the reasons that follow, I prefer the expert evidence of Dr Low. Firstly, the reports upon which Dr Licina relied upon in support of his conclusions were concerned with the causes of degeneration. To my understanding of the evidence (and the medical science) degenerative spinal disease is a naturally occurring process. It is also not controversial to my understanding of the evidence that such process has a genetic component.[13] Nobody contended otherwise in this matter. In my view, the quite heavy reliance of Dr Licina on the reports of Ms Battie was misconceived in the context of a claim largely pointing to aggravation of the underlying condition. [13] See Transcript dated 22 July 2020 at page 21 for Dr Low’s ‘Dachshunds/Greyhound’ analogy. It is not controversial that the naturally occurring degenerative process is liable to aggravation through physical activity. Dr Low has only ever contended that the injury was an aggravation of the degenerative process, or rather two aggravations, namely the January 2008 incident, followed by the work practices over the following years.