Thorpe v Simon Blackwood (Workers' Compensation Regulator)
[2014] QIRC 22
•3 February 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Thorpe v Simon Blackwood (Workers' Compensation | ||||
| Regulator) [2014] QIRC 022 | |||||
| PARTIES: | Thorpe, Dennis | ||||
| (Appellant) | |||||
| v | |||||
| Simon Blackwood (Workers' Compensation Regulator) | |||||
| (Respondent) | |||||
| CASE NO: | WC/2012/475 | ||||
| PROCEEDING: | Appeal against a decision of Simon Blackwood | ||||
| (Workers' Compensation Regulator) | |||||
| DELIVERED ON: | 3 February 2014 | ||||
| HEARING DATES: | 17, 18 September 2013 | ||||
| 18 December 2013 (Respondent submissions) 30 January 2014 (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 – whether injury was | ||||
| temporary and an aggravation of an existing | |||||
| pathology – appeal allowed. | |||||
| CASES: | Workers' Compensation and Rehabilitation Act 2003 | ||||
| s 32(1), s 144A, s144B | |||||
| APPEARANCES: | Mr D. Thorpe, Appellant, in person. Mr P. Rashleigh, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator). |
[1] This application is made by Mr Dennis Thorpe (the Appellant) against a decision of Simon Blackwood (Workers' Compensation Regulator) formerly known as Q-COMP (the Regulator) which affirmed the decision made by WorkCover Queensland (WorkCover) to terminate workers' compensation paid to the Appellant from 8 September 2012.
[2] In June 2012, the Appellant lodged an application for compensation with WorkCover for a left shoulder injury sustained on 15 May 2012. At the time of the injury the Appellant was employed as a Truck Driver/Traffic Controller with Allciv Pty Ltd (Allciv).
[3] WorkCover had accepted the Appellant's application for a musculoskeletal injury to his left shoulder, however, following a medical report from Dr Khursandi, WorkCover notified the Appellant on 16 October 2012 of its decision to terminate his entitlements to benefits and medical treatment from 8 September 2012 pursuant to sections 144A and 144B of the Workers' Compensation and Rehabilitation Act 2003 (the Act).
[4] It is accepted that the Appellant was a 'worker' for the purposes of the Act and that he had suffered a personal injury to his left shoulder on 15 May 2012 which had been accepted as such by WorkCover.
[5] The onus is on the Appellant to prove, on the balance of probabilities that his injury occurred on 15 May 2012 and was not a temporary aggravation of a pre-existing left shoulder pathology.
[6] The Appellant represented himself in this hearing and the Regulator was represented by Counsel.
[7] The question to be considered by the Commission is whether the Appellant's surgery and continuing incapacity past the cessation date of September 2012 is related to the injury of 15 May 2012 or whether it is related to the underlying degenerative medical condition of his left shoulder.
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. [9] 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."
Witnesses
[10] Witnesses for the Appellant were:
Dennis Thorpe (Appellant) Dr George Banic (Orthopaedic Surgeon).
[11] Witnesses for the Regulator were:
Dr Khursandi (Orthopaedic Surgeon) Dr Thomas Koeck (General Practitioner).
Background to Appellant's evidence
[12] On 15 May 2012, while working for Allvic, the Appellant had a fall at work injuring his shoulder and was then placed on restricted duties which limited him to lifting items above three kilograms. Eventually, Allvic had no further work for the Appellant, considering his restrictions.
[13] The Appellant had a prior history of problems with his left shoulder and underwent surgery some 15 years earlier. He also had a fall on 2 September 2009 while working in Sydney and this had caused him pain, discomfort and restriction of movement in his left shoulder [T2-23]. As well, in 2011, the Appellant was referred to the Orthopaedic Department of the Townsville Hospital for issues concerning his knees and shoulder.
Background to the Regulator's response
[14] The Regulator's submissions relate to the medical evidence of both Doctors Khursandi and Banic together with other submissions as to the type of physical activity undertaken by the Appellant whilst not working and his prior medical issues.
[15] Briefly, Dr Khursandi's opinion was that the incident of 15 May 2012 caused an aggravation to the Appellant's pre-existing left shoulder pathology and it was deemed to be a temporary aggravation. On the other hand, Dr Banic's opinion was the Appellant's rotator cuff was already extensively torn, and then was completely torn by the fall on 15 May 2012 causing the Appellant's incapacity to perform his work after that date.
[16] The Regulator also alleges that the Appellant had cleared his land (approximately 10 acres) with a D6 Bulldozer whilst on Workers' Compensation.
[17] Dr Khursandi's reports were dated 4 and 20 September 2012.
[18] Dr Banic's reports were dated 13 September 2012 and 21 January 2013.
Evidence upon question of activities being performed by the Appellant whilst on Workers' Compensation
[19] At the commencement of the hearing, the Regulator advised that it intended call Mr John Hughes, Mr John West and Mr Drew Taken. A reservation was expressed about the need to call Mr Drew Taken and this ultimately did not eventuate.
[20] Counsel for the Regulator questioned the Appellant upon evidence which was expected to be drawn from Messrs Hughes and West.
[21] After the Appellant's evidence was finalised, Counsel for the Regulator stated that he would not be calling those persons as in Mr West's case, he was unavailable to give evidence as he was out of Australia on that date. The Regulator said that it would not be relying upon any of the Appellant's responses to these 'proposed' witnesses' evidence. The Commission enquired as to when notification was given by Mr West that he was unable to attend the hearing to give evidence. The Commission asked for a copy of the correspondence which had been sent by Mr West to the Regulator advising of his inability to attend. That correspondence, dated 16 September 2012, stated as follows:
"I regret to inform you I cannot attend the Proserpine court on Wednesday the
th
18 September due to the fact I will be out of the country on that date. I also wish to inform you that I have known Dennis Thorpe for more than twenty years and I have no knowledge that he has done anything wrong in regards the matter that is before the Court. In fact to the best of my knowledge I have
seen Dennis only twice since January 2012 …
Yours sincerely"
[22] I was advised by Counsel for the Regulator that he was not aware of this correspondence until 11.00am of the first day of the hearing.
[23] The Appellant said, under cross examination, that because the Regulator was going to call Mr Hughes to give evidence, he needed to explain that when the 'dozer' was first mentioned, it was the intention that Mr Hughes would operate it. However, when the 'dozer' eventually arrived at his property, it was a different 'dozer' [T2-42].
[24] After making that comment, Counsel for the Regulator stated to the Appellant: "Again, there is no evidence of that. Now, can I just say this? Mr Hughes is on the list" [T2-24].
[25] This comment was followed, almost immediately, by Counsel for the Regulator stating "I don't know whether he'll be here tomorrow because he is refusing to have contact. So, it's not as though he can ask Mr Hughes that" [T2-43].
[26] The "he" to which reference is made by Counsel for the Regulator was Mr Hughes who did not give evidence before the Commission. The Commission was informed by Counsel for the Regulator that Mr Hughes was not being called to give evidence after the Appellant's case was finalised [T2-48].
[27] Against this somewhat unsatisfactory background, all of the commentary made in this case, as it relates to what Messrs West and Hughes were going to allege concerning the Appellant has been disregarded by the Commission together with any responses given by the Appellant.
[28] The Appellant's evidence was that the range of activities he was advised by Doctors not to do, he refrained from doing. That included "overhead activities" amongst other things.
[29] The Appellant said the work he conducted on his property was not in the form of paid work for another party. He also states that it was work that he was permitted to perform, taking into consideration the restrictions placed upon him by his medical practitioners.
[30] With regard to the operation of the 'dozer' on his property, the Appellant claimed that operating the 'dozer' required 'fingertip controls' as levers were used to position and drive the 'dozer'. The Appellant denied 'working' whilst on workers' compensation stating that he was doing things he was permitted to do and there were no restrictions placed on him by anyone from performing this type of work. His evidence was that "On all those forms, it has that I am allowed to drive and operate machinery - drive motor vehicles and operate machinery" [T2-40]. The Appellant also advised that he had never driven a 'dozer' whilst working for Allciv.
Medical Evidence
Dr Khursandi
[31] Dr Khursandi's report of 4 September 2012 records the Appellant's past medical history of undergoing surgery some 15 years prior to the incident of 15 May 2012. After recovering from that operation, the Report notes that the Appellant claims no on going shoulder problems.
[32] An MRI of the left shoulder (undertaken on 20 June 2012) showed extensive degenerative changes involving the glenohumeral joint with longstanding tears of the subscapularis supraspinatus and infraspinatus. There was also the presence of fatty degeneration in the torn rotator cuff and this was indicative of a chronic tear [Exhibit 7].
[33] Dr Khursandi stated that the Appellant had advanced osteoarthritis of the left shoulder and the fall at work on 15 May 2012 "could have aggravated the pre- existing degeneration and tear of the rotator cuff of the left shoulder" [Exhibit 7].
[34] Dr Khursandi further stated that "I am of the opinion that any aggravation caused by the incident at work on 15 May 2012 perhaps ceased approximately two months after the incident and any ongoing pain that Mr Thorpe has experienced subsequently in the left shoulder would be attributed to the natural progression of his pre-existing advanced degeneration and chronic tear of the rotator cuff" [Exhibit 7]. In his opinion, the Appellant's left shoulder injury had ceased and did not warrant further treatment. That being said, Dr Khursandi believed that the issue of the pre- existing degeneration could benefit from an opinion from an orthopaedic surgeon with special interest in shoulder conditions.
[35] The Appellant's prognosis was recorded by Dr Khursandi as "prognosis of pre- existing non-work related degeneration of the left shoulder and chronic rotator cuff is poor and possibility of further degeneration with increased pain and stiffness in the coming years cannot be ruled out" [Exhibit 7].
Dr Banic
[36] Dr Banic did not agree with Dr Khursandi's diagnosis regarding the Appellant. He did agree, however, with Dr Khursandi's findings that the Appellant had pre-existing degenerative rotator cuff tendinopathy and degenerative osteoarthritis.
[37] Dr Banic disagreed with Dr Khursandi that the Appellant's symptoms beyond two months from his injury were not work related and that they were due entirely to the pre-existing and chronic rotator cuff undergoing natural progression. Dr Banic explained:
"It would be possible that Dennis' functional disability as a result of natural
progression of his pre-existing condition eventually would have the same
outcome as his injury, but the rate and the extent of progression of the
degenerative condition is often balanced muscle forces around the shoulder
and reasonably good function with minimal symptoms. I believe that the
injury which Dennis had sustained resulted in completion of his pre-existing
asymptomatic rotator cuff tendinopathy to massive, complete rotator cuff tear
which resulted in severe pain and weakness, known as pseudo-paralysis. In
conclusion, it is likely that in the event of progression of the chronic rotator
cuff tear, Dennis would be able to continue to work for some time, but
duration of which cannot be predicted with certainty. With the completion of
rotator cuff tear as the result of the work related injury to his left shoulder,
Dennis became incapacitated to perform his work related duties effectively
th
from the time of his injury, which is the 15 May 2012."
[38] Put succinctly, Dr Banic's findings are that the injury sustained by the Appellant on 15 May 2012 severely aggravated his pre-existing left shoulder pathology from asymptomatic, pain free and fully functional partial rotator cuff tendinopathy (tendinosis) to full thickness massive rotator cuff tear involving the whole rotator cuff tendons [Exhibit 11].
[39] During the course of undertaking surgery (September 2012) on the Appellant's
shoulder, Dr Banic was able to confirm his earlier view that the Appellant had
suffered a complete rotator cuff tear [T3-9]. Dr Banic stated that the Appellant's condition was related to his pre-existing left shoulder rotator cuff tendinopathy and
th
also from injuries suffered on the 15 May 2012 [T3-10; Exhibit 11 point 1]. [40] Dr Banic discussed percentages attributable to each of these parts. Initially he stated that while 60 to 70 percent of the condition related to the pre-existing condition, the remaining 30 percent could be attributable to the complete tear suffered in the accident on 15 May 2012.
[41] The Regulator questioned Dr Banic as to his knowledge of prior shoulder problems reported by the Appellant - e.g. the 2009 fall in Sydney; reporting to his General Practitioner, Dr Koeck in September 2009 with left shoulder pain and; in 2011, his referral to the orthopaedic department of the Townsville General Hospital for management of problems associated with his knees and shoulders. Dr Banic said he was not aware of these instances. Dr Banic said he was not aware that the Appellant had told Dr Khurstandi that he had not suffered any pain in his left shoulder since his surgery some 15 years earlier.
[42] However, Dr Banic said that he would be aware that the Appellant may have suffered some shoulder pain, since this surgery 15 years earlier, but he was concentrating on whether that pain or his disability would permit him to do his work. Dr Banic said he believed the Appellant when he stated that he could perform his work.
[43] The Regulator questioned Dr Banic's statement that the Appellant's left shoulder pathology went from asymptomatic pain free and fully functioning to a partial tear of the rotator cuff to a full thickness massive rotator cuff tear involving the whole rotator cuff tendons (it should be noted that the Appellant's evidence and that of Dr Banic was that the Appellant suffered "an extensive rotor cuff tear prior to the incident of 15 May 2012"). Dr Banic's response was that the Appellant had worked during the 15 years since his surgery and if he had pain, this was fully understandable as he did have a pre-existing massive rotator cuff tear. At that time, Dr Banic said it could be that 70 - 80 percent of his rotator cuff tendons were already torn and the remaining percentage was torn on 15 May 2012.
[44] When further questioned by the Regulator as to why he claimed the Appellant was asymptomatic and pain free after his surgery 15 years prior, Dr Banic said "I reconcile that I was expecting from Dennis, considering the extent of his injury that
he was supposed to have some pain during the period of time … . I'm saying
because there are still patients around who do, - does have very similar pathology and they are - although very limited number of them, but they still saying that they didn't have much pain at all. And according to Dennis' history, he gave to me, that's exactly what he said. And I'm - I'm just saying that out of 100 percent of most of the patients you still have - you might have 10 percent of the patients who are saying, well, I - I worked well and I didn't have much pain. It doesn't mean that they did -
didn't have significant pathology behind …"[T3-20].
[45] Dr Banic said knowing the full history of the Appellant's back condition during the prior 15 years, he would not change his diagnosis. He stated that the Appellant had been able to work with his degenerative left shoulder condition (e.g. use a shovel) but he would not have been able to do so with a "full thickness or complete rotator cuff tear" [T3-21].
[46] When questioned by the Regulator as to whether the Appellant could have operated a 'dozer', Dr Banic said he didn't know the mechanism for this type of work - i.e. whether he needed his left hand for that work. Counsel for the Regulator asked Dr Banic to assume the Appellant used both hands to do this, and Dr Banic said "we are talking about his shoulders, not hands" [T3-21]. Dr Banic said he would not have permitted the Appellant to operate "heavy machinery". However, the Appellant's evidence was that the controls on the 'dozer' were 'finger tip controls' with levers. I prefer the evidence given by the Appellant as to the mechanism used by him to operate the 'dozer'. There was no evidence to the contrary given by any other witness.
[47] Dr Banic also stated that in the Appellant's case he was able to perform surgery on the tear related to the injury of 15 May 2012. In the case of a long lasting degeneration tear he could not "get it back".
[48] Dr Banic also stated that he had never said that the Appellant was unable to work at all because of his left shoulder condition, but rather that he could not perform certain duties - "very physical activities".
[49] Dr Banic stated that based upon the Appellant's history and X-Rays and previous investigations, he had a significant and substantial tear which wasn't less than 80 percent and that was visible from the MRI scan (i.e. that he had fatty degeneration of those muscles).
[50] Dr Banic disagreed with Dr Khursandi's opinion that persons with a complete tear of the rotator cuff could continue to function and work properly. Dr Banic said it was 'extremely unlikely' that one could perform heavy work with complete rotator cuff tear - i.e. shovelling activities.
[51] Dr Banic believed that the purpose of surgery on the left shoulder was to improve any function of any remaining rotator cuff by reattaching it back.
[52] In considering the evidence of both Doctors, I favour that given by Dr Banic. Dr Banic's evidence was clear and he had the added advantage of performing surgery on the Appellant's shoulder.
[53] Having considered all of the evidence in this matter, the Appellant has proved on the balance of probabilities that the surgery undertaken on his shoulder and his continued incapacity beyond the date of 8 September 2012 were related to the injury he suffered on 15 May 2012 [Sections 144A, B].
[54] I allow the appeal.
[55] The Regulator is to return the matter to WorkCover to determine as to when the Appellant's incapacity from the injury, including the surgery ceased.
[56] I order accordingly.
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