Westhead v Simon Blackwood (Workers' Compensation Regulator)
[2014] QIRC 197
•26 November 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Westhead v Simon Blackwood (Workers' | ||||||||
| Compensation Regulator) [2014] QIRC 197 | |||||||||
| PARTIES: | Westhead, Sean | ||||||||
| (Appellant) | |||||||||
| v | |||||||||
| Simon Blackwood (Workers' Compensation Regulator) | |||||||||
| (Respondent) | |||||||||
| CASE NO: | WC/2014/118 | ||||||||
| PROCEEDING: | Appeal against a decision of Simon Blackwood | ||||||||
| (Workers' Compensation Regulator) | |||||||||
| DELIVERED ON: | 26 November 2014 | ||||||||
| HEARING DATES: | 14 and 15 July 2014 | ||||||||
| MEMBER: | Industrial Commissioner Thompson | ||||||||
ORDERS: |
| ||||||||
CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION - decision of Simon Blackwood (Workers' Compensation Regulator) - Appellant a worker - bears onus of proof - standard of proof - balance of probabilities - medical evidence - personal injury - Appellant suffered a personal injury in the form of an aggravation of a pre-existing condition - causation of the injury was lifting of a toolbox - personal injury arose out of or in the course of employment and employment was a significant contributing factor - Appeal upheld - claim one for acceptance - decision of Regulator overturned - Regulator to pay Appellant's costs. | ||||||||
| CASES: | Workers' Compensation and Rehabilitation Act | ||||||||
| 2003 s 11, s 32, s 550 | |||||||||
| Suzanne Karipa v Q-COMP (WC/2011/453) - | |||||||||
| Decision < | |||||||||
| APPEARANCES: | Mr P. de Plater, Counsel instructed by Shultz Toomey O'Brien for the Appellant. Mr A. McLean Williams, Counsel directly instructed by Simon Blackwood (Workers' | ||||||||
| Compensation Regulator), the Respondent. |
Dr Richard Brown (Dr Brown); Dr Susan Luu (Dr Luu); Dr Ian Cheung (Dr Cheung); and Geoffrey Clark (Clark).
[9] The witness for the Regulator was as follows:
Dr Gavin Ballenden (Dr Ballenden).
Appellant
Westhead
[10] Westhead, the holder of a builder's licence, gave evidence relating to his employment history since finishing school in 1989. The bulk of the work undertaken was that of carpentry work which he undertook by subcontracting to larger builders. In 2013 the opportunity to work for Brighton Australia arose and he accepted a position, commencing on or around 30 September 2013 on a project in Fortitude Valley. The mode of employment was that of an employee with no requirement to submit invoices to Brighton.
[11] On commencement his toolbox (due to the weight of the box) was removed from his Ute by forklift. The weight of the toolbox fully loaded was around 150 kilograms. The initial work tasks allocated to him was the fixing of architraves around door frames. On 9 October 2013 he was instructed to do some work in the hotel apartments which necessitated him moving his toolbox (by hoist) to his new work area. Westhead encountered some difficulties in moving the toolbox on his own, in particular up a ramp that was not fixed securely which caused the toolbox to stop fairly quickly "like it's hit a wall" which caused a twinge in his back. He continued to attempt to move the box and was eventually helped by a Korean tiler who was walking past at the time.
[12] The level of pain experienced was in the lower lumbar area and not of a type previously experienced. After a period of rest he continued to work with the pain being three out of ten in intensity. The work task on the day was the installation of skirting which was described as not heavy work but work that required a lot of bending. Westhead did not inform anyone of the incident (that day) and presented for work on 10 and 11 October 2013 although continuing to experience pain at the level of three out of ten.
[13] On 12 October 2013 (Saturday) he was not required to work and attended a school-related function for one of his children, giving evidence that the pain remained at the three out of ten level. On the Sunday morning he awoke with a pain level of five out of ten which progressively increased to an eight or nine out of ten which caused him to have a "lie down".
[14] Westhead called the employer on 14 October 2013 to advise he would not be attending for work as he had "done something" to his back but was not sure how he had injured his back. Upon making a claim for workers' compensation, he informed WorkCover the injury occurred lifting the toolbox at work as he had not done anything else that would have caused his injury.
[15] WorkCover had him examined by Dr Ballenden and in providing a history of the onset of pain Westhead informed him of moving the toolbox and that on the Sunday (13 October 2013) he was watching the kids.
[16] Westhead attended the Newmarket Medical Centre on 15 October 2013 where Dr Luu gave him a referral for a CT scan, issued a prescription for some pain killers and gave him the week off from work. Dr Luu at the end of the week was keen for him to go back to work for a half day which was difficult due to the level of pain being six or seven out of ten. Despite working for another two half days he was unable to return to work.
[17] Dr Luu gave him a referral to Dr Brown who in turn sent him off for two steroid injections to the facet joint and spinal area (respectively) from which he said derived no benefit. Dr Brown arranged for an MRI to be performed and for physiotherapy treatment.
[18] At the time of hearing, the level of pain was said to be four out of ten but it can spike to six out of ten.
[19] Westhead completed a "Workers Injury Claim Form" [Exhibit 2] signed by him on 28 October 2013 that recorded he was injured "lifting a toolbox".
[20] A WorkCover "online form" [Exhibit 3] contained the following which Westhead evidenced was consistent with the information he provided to WorkCover:
"How did the injury happen - the worker does not know how the injury occurred. He woke up on the Sunday morning 13/10/2013 with a very sore back. He hadn't worked since Friday 10/10/2013. The only thing he could put it down to was lifting his toolbox on 9/10/2013."
[21] Under cross-examination, Westhead confirmed in his adult life he had mostly worked in construction, predominantly carrying out "fit out work" [Transcript p. 1- 27]. He experienced no difficulty in unloading the toolbox at the Fortitude Valley site on commencement of employment by means of a forklift. The toolbox remained on site (locked) [Transcript p. 1-28]. Prior to 9 October 2013 he would on certain days have a "very small amount" of back pain in the afternoon although there was never a need to medicate with painkillers. In moving the toolbox between floors he would use the hoist and at times the hoist operator would assist [Transcript p. 1-29].
[22] On the day in question he conceded his evidence was he had to get the "toolbox up a step, and then down a step and then up a step again". A version put to the Regulator on his behalf by his former lawyers made no reference to going up a step, down a step and then up another step [Transcript p. 1-30]. The version put to the Regulator was put to Westhead who in evidence stated "That's definitely not correct". The version given in Westhead's evidence-in-chief was said to be the correct version [Transcript p. 1-31].
[23] The toolbox was more a site box than a toolbox being around 1.2 metres long, 0.70 metres wide, 0.75 metres high and fitted with castors that would have the toolbox (at the top) 0.875 metres off the ground [Transcript p. 1-33]. In describing the movement of the toolbox, it initially took 15 to 20 minutes to get up the first step at which time he took a break. Once the toolbox was placed in the work area he continued to work on rectification of skirting which required a degree of him working on his knees [Transcript p. 1-34]. The work undertaken the following day was the same as the previous day with the need to relocate to another level on the Friday which required the relocation of the toolbox. Despite the earlier incident that had caused the twinge of pain in his back, he moved the toolbox on his own spending the day installing doors [Transcript p. 1-35]. Westhead described his work output for that day at around 50 per cent [Transcript p. 1-36].
[24] Following the Wednesday incident, the pain had settled to a three out of ten until he woke up on the Sunday morning with a pain level of six out of ten. After standing and watching his children for about an hour the pain level increased to an eight or nine out of ten to a point where he could not walk. Whilst he could not remember actually playing with the children he acknowledged he would have lifted them at some time that morning [Transcript p. 1-36].
[25] In terms of reporting the injury to the employer, he left a message on the foreman's (Alvin) phone at around 9.00 am on 14 October 2013 [Transcript p. 1-38]. Westhead did not accept he was not precisely sure about how he happened to hurt his back and came up with the toolbox incident as the most likely thing [Transcript p. 1-39].
[26] Westhead was unable to recall what he had told Dr Brown about how he had hurt his back [Transcript p. 1-39] but conceded he "possibly" had informed a woman from WorkCover that the only thing he could think of was lifting the toolbox. Westhead could not "quite remember" the history he provided to Dr Ballenden [Transcript p. 1-40] although he accepted he was careful to try and explain to him, as best he could, about his injury and what had happened [Transcript p. 1-41].
[27] Westhead confirmed that he did not have private health insurance and without access to workers' compensation he would have to meet the costs of physiotherapy. He remains on income protection which will continue until he turns 65 or his condition improves [Transcript p. 1-41]. In concluding cross-examination, Westhead accepted he had not reported his injury on 9, 10 and 11 October 2013 because he was not in sufficient pain and it was only that he was in incredible pain on 13 October 2013 that he rang the employer the next day [Transcript p. 1-41].
[28] In re-examination, the evidence was that the Korean tiler had only helped him for 15 or 20 seconds and then continued on his way.
Rimmer
[29] Rimmer, the partner of Westhead, gave evidence relating to the period of Westhead's employment on the Fortitude Valley site. Westhead had not mentioned injuring his back until Sunday 13 October 2013 when he informed her in the morning his back was sore. Later that morning he informed her that whilst he was watching the children play, his back became progressively worse and later in the day she was required to physically assist him to stand up.
[30] Under cross-examination Rimmer indicated that whilst Westhead was supervising the children on the morning of 13 October 2013 she had remained indoors and was unable to observe his activities [Transcript p. 1-47].
Dr Brown
[31] Dr Brown a medical practitioner with a Fellowship in Sports Medicine specialises in that discipline, dealing with traumatic injuries through sports such as Rugby Union. Dr Brown provide four reports to Dr Luu on:
12 February 2014 [Exhibit 4]; 18 March 2014 [Exhibit 5]; 7 April 2014 [Exhibit 6]; and 24 April 2014 [Exhibit 7].
[32] A further report was prepared for Schultz Toomey O'Brien Lawyers [Exhibit 8]. Dr Brown confirmed that the opinions expressed by him in all the reports were honestly held by him. There were also a number of treatments provided which included referrals for facet joint injections, physiotherapy treatments and an MRI scan.
[33] The MRI report suggested, which on Dr Brown's understanding meant, "loss of fluid within the disc or loss of disc height". There was also a small annular tear and not being an expert radiologist he was not certain if it was new or old tear.
[34] In the report of 12 February 2014 [Exhibit 4] Dr Brown made comment in respect of the following points:
no significant back pain in the past; in October (2013) aggravated lower back whilst lifting a toolbox; back pain started two to three days later whilst standing still; and CT scan demonstrated a disc and some early facet wear at that level.
[35] In the report to Westhead's lawyers [Exhibit 8] Dr Brown, in response to various questions, offered comment that included:
that it was possible Westhead could have suffered an injury to his lower back on 9 October 2013 but would have needed to examine him at the time to be more exact on whether it was more probable or not; the most common scenario was of another aggravating incident that
triggered the flare up on 13 October 2013 even if it was small in nature; MRI findings (16 March 2014) suggested a degenerative disk which
implies the pain to be an aggravation of a previous degenerative area; having not examined Westhead until five months post injury he found it
hard to comment on what his acute status was; on the conclusion of Dr Ballenden that Westhead's injury was "inconsistent with a workplace injury and the latency of development of symptoms" his opinion was "that the presentation is not classic but clearly possible for work to have aggravated his condition"; there was probably some level of pre-existing disc damage; and the symptoms were in excess of a "normal rate of deterioration".
[36] Under cross-examination Dr Brown accepted his primary focus had initially been on the facet joints with Dr Brown conceding that given Westhead's age and occupation, facet joint irritation was not uncommon and the pain associated with facet joint irritation could happen to anyone in any aspect of their daily living [Transcript p. 1-55]. Dr Brown had seen Westhead for the first time not proximate to his injury and he was more concerned with treating the symptoms rather than the cause of the injury [Transcript p. 1-56]. The injections to the facets or the disc in this case were not positive which meant he could not be sure at the time of treatment where the pain was coming from [Transcript p. 1-56].
[37] In the report to Westhead's lawyers [Exhibit 8] he had expressed an opinion on whether there was a medical explanation for a circumstance where a back injury could be suffered on a particular day yet significant symptoms of pain were not experienced until some four days later. In evidence he stated "It's certainly possible, but I'm not sure we'd say it's likely as far as what I see in my practice" [Transcript p. 1-57]. Dr Brown accepted it was "blindingly obvious" having not seen Westhead until several months past the time of injury it was hard to offer any precise opinion about what may have happened back then [Transcript p. 1-58].
Dr Luu
[38] Dr Luu is a General Practitioner in practice at the Newmarket 7 Day Medical Centre where Westhead had been a patient for a number of years. A copy of clinical notes pertaining to Westhead's attendance at the practice were tendered in the proceedings [Exhibit 12] having first attended there in November 2004.
[39] Dr Luu gave evidence the doctors at the practice would enter directly into a computer, notes relating to the consultation with a patient usually at the time of the visit. The first time Dr Luu personally treated Westhead was in March 2006. She had a "vague memory" of treating Westhead on 15 October 2013 with the clinical notes indicating the issue was that of lower back pain. According to the clinical notes he had not previously been treated for that condition at the practice.
[40] Dr Luu referred him for a CT scan and also made a referral to Dr Brown. She continued to manage his treatment.
[41] Under cross-examination Dr Luu confirmed her clinical notes of 15 October 2013 had referred to Westhead's back pain as "acute" which meant rapid onset. The diagnosis was based upon what he had told her at the time [Transcript p. 1-62]. The referral to Dr Brown was the first option although if there was no improvement they could be referred to an Orthopaedic Surgeon or a Neurosurgeon [Transcript p. 1-62]. In terms of the 15 October 2013 consultation if Westhead had told her something about the history of the pain prior to the weekend she would have recorded it [Transcript p. 1-63].
Dr Cheung
[42] Dr Cheung an Orthopaedic Surgeon, at the request of lawyers acting on behalf of Westhead, undertook an examination of him and provided an independent medico-legal report on 3 June 2014 [Exhibit 13]. Dr Cheung's report contained a history that had been provided by Westhead and responses to specific questions. Dr Cheung confirmed the content of the report contained opinions honestly held by him.
[43] The report recorded Westhead had sustained an injury at his workplace on 9 October 2013 when lifting one end of a toolbox that weighed somewhere between 150 and 200 kilograms which caused pain of five to six out of ten on the visual analogue scale eventually settling to three out of ten. On Sunday 13 October 2013 whilst watching his children playing the pain went to an eight/nine out of ten and remained too severe for him to drive to the doctor until 15 October 2013.
[44] The conclusion reached by Dr Cheung in terms of the condition was:
"…his presentation may represent a musculoligamentous strain at this level
and/or aggravation of underlying degenerative changes."
[45] Dr Cheung answered in the affirmative that Westhead's injuries sustained were consistent with the circumstances of the accident. The CT scan findings (15 October 2013) were degenerative in nature and pre-date the injury in October 2013 with the same applying to the MRI findings (14 March 2014).
[46] Under cross-examination, Dr Cheung was firstly questioned about the history provided at the time of examination on 23 May 2013 where he confirmed:
history was provided by Westhead; there was mention of only one step in the report; Westhead recalled having pain at five/six out of ten that settled at three
out of ten for the subsequent three days; and Westhead carried out work on Wednesday, Thursday and Friday
[Transcript p. 1-67].
[47] Dr Cheung, in reflecting upon the report of Dr Brown indicated in terms of causation, there was a suggestion of a pre-existing component of some facet joint and degenerative disc disease that was consistent with Westhead's age [Transcript p. 1-69]. He accepted that it was possible Westhead had experienced an acute onset of pain caused by his underlying condition, that was not related to events of the preceding Wednesday [Transcript p. 1-69]. Dr Cheung accepted the proposition of a musculoligamentous strain at this level and/or an aggravation of an underlying degenerative change tended to get better of their own accord and if they fail to get better it is the underlying degenerative pathology at play [Transcript p. 1-70]. The MRI and CT scan he concluded showed underlying degenerative pathology and did not have anything to do with 9 October 2013 [Transcript p. 1-71].
[48] The number of lifting episodes described by Westhead on 9 October 2013 according to Dr Cheung was one he accepted Dr Ballenden had recorded a slightly different understanding of events that were premised on the assumption Westhead had been able to continue work. Dr Cheung felt that the mechanism of injury was a quite significant force and that workplace incident was contributory [Transcript p. 1-71]. With the two incidents of 9 and 13 October 2013 close together it was Dr Cheung's evidence it was only fair to give Westhead the benefit of the doubt that the heavier of the two incidents caused his symptoms [Transcript p. 1-74].
[49] In re-examination Dr Cheung gave evidence of his interpretation of a musculoligamentous injury or strain as being "I guess a non-specific pain entity that we assume has - caused by an injury to, you know, the muscles or ligaments surrounding the bony structure".
[50] Dr Cheung derived from localised pain and tenderness which seemed be localised at L3/4 that there was a mechanism of a significant strain rather than a more benign event.
Clark
[51] Clark, a Physiotherapist of some 25 years standing, described himself as a Musculoskeletal Physiotherapist. He first treated Westhead on 17 February 2014 on a referral from Dr Brown. Notes pertaining to his consultations were tendered in the proceedings [Exhibit 14].
[52] The notes recorded on 17 February 2014 Westhead was a carpenter who had been "injured at work lifting heavy onsite toolbox. Pain worse with standing still and extension".
[53] Under cross-examination, Clark gave evidence of providing five physiotherapy treatments to Westhead who had informed him he had injured himself lifting a toolbox, on a job site but did not provide a date of injury. He ultimately sought to obtain an adequate history to understand exactly what pathology might assist with moving forward [Transcript p. 1-78]. On the first and second consultation the injury appeared to be facet related. On the issue of acute pain, the evidence was "it can
occur spontaneously depending on the load prior…one episode can set if off and you
can have an acute and extreme exacerbation of pain and have no prodrome of that
occurring beforehand" [Transcript p. 1-79].Regulator
Dr Ballenden
[54] Dr Ballenden, an Occupational Physician, has a history of 40 years in medicine of which at least five related to his specialty of Occupational Physician.
[55] Dr Ballenden, on referral from WorkCover saw Westhead on 31 October 2013 for the purposes of providing an opinion and not treatment. The report (dated 31 October 2013) was tendered in the proceedings [Exhibit 15]. He personally took a history from Westhead, conducted an examination and reviewed documents and material supplied. In terms of the history it was typed in the presence of the person providing the history.
[56] Westhead had informed him he lifted a toolbox over a step in the floor, unaccompanied, with the weight said to be 150 kilograms. Dr Ballenden had not verified the weight of the toolbox but had doubts that anyone could lift such a weight. There were said to be two lifts in total involving one step and at a point he felt immediate pain in the centre of his back although it was not of a kind to stop him working. Dr Ballenden was informed that he had not struggled with his work for the remainder of the day, had felt no pain or discomfort thereafter and did not feel the need to report the incident to anyone. Further he was advised there was no trouble or symptoms for the following two days which he also worked.
[57] The Saturday produced no problems, however the reports of the other doctors variously stated he awoke with pain. Dr Ballenden gave evidence of being informed Westhead had developed pain on the Sunday afternoon when he was outside playing with his children to the extent that within an hour he could hardly walk.
[58] Dr Ballenden, when asked to define acute pain and described it as "acute pain means pain that develops instantly, of the instant". In the circumstances where Westhead experienced acute pain on the Sunday, it was Dr Ballenden's evidence that the causal factor for the pain was discogenic pain which was pain arising from a degenerative disc of some degree. For such an onset of acute pain he opined "it can just happen on its own".
[59] Dr Ballenden believed he and Dr Cheung had more or less the same idea of Westhead's physical presentation and the relevance of the radiological investigations to his presentation. Dr Cheung had based his opinion on a history that had differed significantly from the one he had been given some seven months previously. Significant differences included the history regarding the pain of acute and rapid onset in the afternoon of 13 October 2013 rather than the morning.
[60] The report [Exhibit 15] at paragraph 16 provided Dr Ballenden's response to the question "On the balance of probabilities, did the mechanism described cause the claimant's injuries?":
"No, only on the benefit of the doubt given his history, but also the history was inconsistent in that he modified it after being told that his claim would not be accepted.
It is possible to have multiple episodes of discogenic back pain from various different activities during the course of natural progression of a degenerative disc, the vast majority of which are spontaneous.
If this claim was accepted for the initial incident (even with the inconsistency of a change in history) then that incident should be considered to have ceased as there were no further problems related to it and it did not prevent work for the next two days, or cause any restriction or incapacity.
The onset on the Sunday some 3-4 days later was independent of the work incident and part of a continuum of disc disease rather than part of a continuum of work related injury.
There was no evidence of a work injury following the minor twinge felt at work, if indeed that did occur."
[61] Under cross-examination, Dr Ballenden firstly was required to respond to questions regarding correspondence from WorkCover (dated 25 October 2013) which detailed 16 questions to be addressed in terms of an independent medical examination and report on Westhead. The views reached by Dr Ballenden were on the basis there was no ongoing pain between Wednesday 9 October 2013 and Sunday 13 October 2013 and no indication given that he awoke with pain on the Sunday morning [Transcript p. 1-89]. The correspondence from WorkCover advised he had pain on the Sunday when he went to get out of bed. Dr Ballenden had in his report at page 3 stated "This man had had central low back pain which had been present for five days" which he accepted was the history before him [Transcript p. 1-90]. When pressed on the matter of ongoing pain, he stated that "I can't remember whether that's what he told me or that's what the referral said" [Transcript p. 1-90].
[62] On the notes he recorded at the time of examining Westhead, Dr Ballenden appeared not to accept initially they were not accurately taken but conceded that through no fault of his own his record may not be precisely accurate [Transcript p. 1-91]. Dr Ballenden, in terms of differences relating to the day of the injury and Westhead working after the event, became less than cooperative as a witness, making the comments:
"Right. Well if he did, I'm sorry, I don't see what that proves".
"I'm not commenting further, actually". [Transcript p. 1-92]
[63] Dr Ballenden in terms of the radiology gave evidence that as a general proposition x-rays were ineffective at showing soft tissue injuries, a CT scan is slightly better at some things than an MRI and vice versa. At the time of examining Westhead he did not have the detail of the MRI scan or the radiologists report [Transcript p. 1-93]. Of recent time he had been provided with the MRI scan which indicated that discs at "L2-L1, L1-L2, L2-L3, L3-L4 and L4-L5 were normal" and further they demonstrated preserved hydration and height with there being no disc-herniation. The degenerative disc in this case was L5-S1. At the time of the examination it was his belief that his degenerative spinal condition was much wider spread or further afield than it would appear when having regard to the MRI. It would be more likely that if Westhead was to have an exacerbation of an ongoing degenerative condition it would be around L5-S1 [Transcript p. 1-94].
[64] Dr Ballenden performed the Waddell Testing method which indicated "there was no doubt that this man had a presentation which was believable with there being no reason not to believe that he had the symptoms he complained of. In preparation of his report he did not have access to Westhead's first report to WorkCover [Transcript p. 1-96] and the information he relied upon was provided by Ms Martin (from WorkCover) in a telephone call on 22 October 2013 which he accepted was inconsistent with what Westhead had informed his General Practitioner on 15 October 2013. The report indicated it was conceivable that lifting the toolbox had caused disc pain [Transcript p. 1-97].
[65] Dr Ballenden recalled Westhead had informed there "hadn't been an incident" and he had thought back to what might have precipitated his problem [Transcript p. 1-99]. He accepted that up to 9 October 2013 Westhead was asymptomatic [Transcript p. 1-100].
[66] In re-examination Dr Ballenden gave evidence it was "very surprising" a CT scan had been performed at the time he had seen him in the absence of a surgical emergency. The reference in his report to the five days of pain after 9 or 10 October 2013 may have been as a result of someone else's notes. In the absence of the MRI at the time of the examination he had focussed on L5-S1 because the majority of the change was at that level. The L5-S1 level did have the majority of change at the time of reporting. In relation to his understanding of the etiology of Westhead's condition, he had tended to ignore the referring letter, preferring to give Westhead the benefit of providing the history provision.
Submissions
Regulator
[67] The case was said to be of narrow compass not involving significant issues of law with it being a factual dispute, coming down to the difference of opinion between the medical experts.
[68] The Regulator conceded that Westhead was a worker pursuant to s 11 of the Act. He was a carpenter employed by Mosaic at a high rise building site in Fortitude Valley having commenced on 30 September 2013. He alleged he sustained his injury on 9 October 2013 and there was another event on 13 October 2013. It was uncontentious on the evidence that the second episode was an acute onset of more extreme pain. The injury was reported to the employer (for the first time) on 14 October 2013 and his presentation to a doctor was on 15 October 2013 to Dr Luu from which a WorkCover claim was commenced.
[69] The earliest contemporaneous records dealt with the work allocated to Westhead up to and including 9 October 2013 and the requirement to move his toolbox to the relevant location. Westhead presented to Dr Luu on 15 October 2013 with "low back pain, acute" having woken up on the Sunday morning. The acute pain was described by Dr Luu as being of "rapid onset". On examination she found he was tender at the L2-L3 and L3-L4, mid lower back and sent him off for a CT scan. Dr Luu's references made no mention of there being any pain on the Thursday, Friday or Saturday, just the acute pain on the Sunday morning. Dr Ballenden gave evidence of the onset of pain occurring on the Sunday afternoon.
[70] Westhead on 28 October 2013 in the "Work Injury Claim Form" [Exhibit 2] recorded the event causative of his injury as occurring on 9 October 2013 at 12 noon yet in evidence said it happened in the morning. Also on 28 October 2013 he recorded he did not experience pain until 13 October 2013. The information gleaned from 28 October 2013 was more contemporaneous than his evidence in these proceedings.
[71] Of the minor witnesses, Clark was focussed on treatment and offered nothing in respect of causation. In the case of Rimmer she merely reported or testified that during the week of 9 October 2013 she was present when Westhead returned from work, that he attended a function on the Saturday and had not done anything either remarkable or physical in that time. The most important aspect of Rimmer's evidence was that she did indicate Westhead had not informed her of being in pain from 9 to 12 October 2013 which was unusual for a spouse not to have been informed of a sentinel event at work on the Wednesday. Rimmer's evidence was not of assistance to the Commission.
[72] The very factual dispute for determination is whether the Commission prefers the evidence of Dr Ballenden or Dr Cheung who had both formulated their opinions based upon a different factual appreciation of the case. The electronically generated WorkCover claim form, which was undated but likely to have been lodged closer to the commencement of the claim, stated:
"The worker does not know how the injury occurred. He woke up on the Sunday morning, the 13th of October with a very sore back. He hadn't worked since Friday the 10th of October. The only thing he could put it down to was lifting his toolbox on the 9th of October 2013".
Westhead's testimony on the recounting of events was said to be a recreation of events later in time than the documents closer to the issue recorded.
[73] Both doctors had an understanding that Westhead had to lift the toolbox up and over a ramp, over a pipe or a step and that each end of the concrete pump had to be lifted one end at a time. Moreover after having experienced "incredible pain" on the first lift he continued to lift the toolbox two more times. This account of events given by Westhead to his former lawyers [Exhibit 16] was more elaborate factually, more ritually endowed than his previous versions of events.
[74] It would appear Westhead was augmenting his story to improve it and the Commission should give greater weight to the accounts given earlier in time in relation to the mechanics of events.
[75] The evidence of Dr Brown was similar to that of Clark in respect of being based on treatment rather than focussing on causation. The treatment by way of cortisone and steroid injections ordered by Dr Brown were said by Dr Ballenden to act as proof he was not suffering from irritated facet joints. Dr Brown had quite rightly conceded as time passes the capacity for a doctor to formulate a good opinion diminishes because of distance from the event causative of the symptoms and in this case he did not examine Westhead until five months post injury.
[76] Dr Ballenden, having seen Westhead within three weeks of the events in issue, makes him the medical specialist closest in time to the events in issue with the presenting condition at the time more likely to be related to the events under examination than anything seen by the other medical specialists. Dr Ballenden recorded a very different history from that given to Dr Cheung with his understanding being the injury happened on the Thursday with the acute event on the Sunday which had the effect of Westhead working a further two days without difficulty, that had strengthened his opinion. Dr Ballenden's evidence of the process of history making showed he was careful to elicit the relevant factual particulars which led him to opine that the onset of back pain on the Sunday was a spontaneous event and not related to the minor work-related incident nominated which had not affected his ability to continue all activities for a period of three days.
[77] The CT scan, according to Dr Ballenden, simply showed the pre-existing discogenic degeneration which had the onset of acute pain on the Sunday and was not work related. The critical aspect of his evidence related to the absence of reported pain between the Wednesday and the Sunday.
[78] Dr Cheung was called upon by Westhead to provide an opinion at a time when these proceedings were already on foot. On seeing Westhead in June 2013 he was provided with a different account of what had happened to the account given to Dr Ballenden which included differences about:
levels of pain; acute pain - persisting pain; and details around the movement of the toolbox.
[79] There were suggestions that Dr Cheung had been given a story in an attempt to create the necessary back story to have the claim one for acceptance. The factual matrix presented was such that the Commission should prefer the opinion of Dr Ballenden over that of Dr Cheung.
Appellant
[80] The issue for determination was fairly summarised by the Regulator with the question being whether there was a continuum of pain between the Wednesday and the Sunday which is what formed the factual basis for Dr Cheung's view and if there is not such pain, that forms the factual basis for Dr Ballenden's view and that in reality is the contest.
[81] The evidence from Westhead, who was not a particularly articulate person, was honest and his first opportunity to give a detailed explanation of the events and answer questions. On the history provided to the doctors he was never given the opportunity to see what they had written at the time or whether they had misrepresented what he had told them. When it was put to him that he had accepted the content of a document from his former lawyers [Exhibit 16] Westhead did not agree and had he been involved in the preparation of the document he would have been aware of an internal inconsistency.
[82] For the Appeal to succeed, it has to be accepted that prior to 9 October 2013 he was asymptomatic and that he injured himself when lifting, pulling or hauling a significantly heavy toolbox. In cross-examination it was suggested that the event itself had never occurred. He describe the level of pain at the time of lifting with it reducing and continuing at the reduced level. On the Sunday upon waking the pain had increased and continued to do so during the day.
[83] There were no other significant events with there effectively being no challenge to his evidence about what occurred on the Sunday. Westhead had reported his condition to his work on the Monday and sought medical treatment on the Tuesday. Dr Luu, the first medical practitioner to whom he presented, recorded in her clinical notes that he had moved his toolbox on the Wednesday (weighing 150 kilogram) and suffered pain at that time. Well before contacting WorkCover or being examined by Dr Ballenden or Dr Cheung the toolbox incident and the pain suffered had been raised by him.
[84] If Dr Cheung's report is accepted based upon the history relied upon, Westhead either suffered an injury or at least an aggravation of a pre-existing injury. On the percentages of impairment Dr Cheung attributed an eight per cent impairment of which four per cent was from the pre-existing condition. The work injury accounted for three per cent and the spontaneous onset of pain on the Sunday was at one per cent. Whilst Dr Ballenden was critical of the methodology in arriving at those percentages, Dr Cheung was never given the opportunity to respond to the criticisms of those apportionments.
[85] The factual determination on which Dr Cheung based his evidence should be accepted ahead of the factual determination of Dr Ballenden.
[86] There was a question about why Westhead would have told Dr Ballenden different information than what was contained in the briefing letter from WorkCover and why he would inform Dr Ballenden of the onset of pain was the Sunday afternoon when nine days earlier he had told WorkCover that he suffered pain when he got out of bed on the Sunday morning.
[87] If it was the case Dr Ballenden was told the onset of pain was on the Sunday afternoon which was contrary to the briefing letter, then why didn't Dr Ballenden raise that as an issue at the time. Dr Ballenden, in evidence, had said he ignored the content of the referral letter yet in the body of his report he makes reference to "understanding from the referral". Dr Ballenden, in evidence, could not accurately recall what he relied upon in the history given by Westhead as compared to the information from WorkCover.
[88] According to the submission, there were two critical differences between the reports of Dr Ballenden and Dr Cheung, which were:
Westhead waking with pain on the Sunday morning; and whether he had lifted his children on the Sunday.
The issue of lifting the children was not put to either doctor.
[89] If Westhead's evidence is accepted, the probabilities are as Dr Cheung said in that lifting the heavy toolbox was much more likely to cause an injury than a spontaneous event that occurred on the Sunday morning.
[90] The Commission was taken to the decision of O'Connor DP in the matter of Karipa v
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Q-COMP which was said to have gathered together all previous decisions in relation to an aggravation.
[91] It was clear from the WorkCover correspondence that in the conversation of 22 October 2013 they had told Westhead he needed an event. His hand filled form (dated 28 October 2013) identified the event.
Regulator in reply
[92] The issue of Dr Cheung's whole person impairment was not taken any further because these proceedings were matters went to statutory entitlement.
Conclusion
[93] The status of Westhead as a "worker" pursuant to s 11 of the Act was at no point in the proceedings of contention therefore requires no such finding by the Commission.
[94] The submissions of both Counsel that the considerations of the Commission were of narrow compass and required a determination around issues of a factual dispute between the expert medical evidence of Dr Ballenden and Dr Cheung, in the view of the Commission was an accurate assessment of the evidence adduced in the course of the proceedings.
[95] The matters for determination are:
whether Westhead suffered a personal injury; if such an injury was suffered, did it arise out of or in the course of
employment; and was the employment a significant contributing factor to the injury.
Personal Injury
[96] Westhead claims to have suffered an injury in the workplace on 9 October 2013, first seeking medical intervention with Dr Luu on 15 October 2013 who recorded in her clinical notes that the issue on that day related to lower back pain. The treatment afforded Westhead was the referral for a CT scan and the prescribing of pain relief medication.
[97] There was a referral to Dr Ballenden by WorkCover on 31 October 2013 for the purposes of providing an opinion rather than medical treatment. Dr Ballenden opined in terms of Westhead's injury that on presentation, the symptoms he complained of were believable.
[98] In the case of Dr Luu and Dr Ballenden, their interactions with Westhead were at six and 22 days (respectively) after 9 October 2013 with both confirming he was suffering an injury to his lower back region.
[99] In February 2014 Dr Brown saw Westhead on a referral from Dr Luu and commenced a course of treatments for an aggravated lower back injury said to have possibly occurred in October 2013. Dr Brown had arranged for injections to facet joints as part of his ongoing treatment plan in addition to providing a referral to Clark who would subsequently provide five physiotherapy treatments to Westhead. Dr Brown, in a report to the lawyers acting for Westhead [Exhibit 8], offered the following opinion "MRI findings (16 March 2014) suggested a degenerative disc which implies the pain to be an aggravation of a previous degenerative area".
[100]The last of the medical reports was that of Dr Cheung who had examined Westhead in June 2014 and opined "his presentation may represent a musculoligamentous strain at this level and/or aggravation of underlying degenerative change".
[101]All of the medical evidence before the proceedings is consistent in that it identifies Westhead suffered a lower back injury and that there was the existence of an underlying/pre-existing degenerative condition.
[102]The fact is that at the time of hearing Westhead continued to remain unable to work due to his condition, and based upon the medical evidence, on the balance of probabilities it is more likely the personal injury suffered was that of an aggravation of a pre-existing condition than a musculoligamentous strain. The condition had been at the time asymptomatic.
Did the personal injury arise out of or in the course of employment?
[103]On 9 October 2013 according to Westhead's evidence he was required to move locations on the Mosaic site in Fortitude Valley which entailed relocating his toolbox that when fully laden weighed in the vicinity of 150 kilograms. In the course of relocating he is said to have experienced a "twinge" in his lower back causing pain at a three out of ten on the visual analogue scale.
[104]It is not of question that Westhead failed to report the incident to the employer on the day in question and that he continued to undertake the work tasks allocated on the following two days at a level that saw no intervention by the employer in terms of the quantity or quality of the work performed. Nor did Westhead mention to his partner any detail of the incident. On the Saturday he attended a function at the Doomben races where he gave evidence that the pain had remained at three out of ten. Upon wakening on the Sunday morning the level of pain had increased to a five out of ten which progressively increased to the extent whilst he was standing, watching his children play it became unmanageable. He gave no evidence of an acute event on the Sunday. Having called his employer to advise of his non- attendance at work on the Monday he attended Dr Luu on Tuesday for the purposes of obtaining medical treatment.
[105]In the time from 9 October to 15 October 2013 there was no contemporaneous record of the causative nature of the injury with Dr Luu's clinical notes (of 14 October 2013) not mentioning issues with pain prior to the Sunday.
[106]Whilst completing a "Work Injury Claim Form" on 28 October 2013 he recorded an event at work on 9 October 2013 at 12 noon as causative of the injury. In an electronically initiated WorkCover document (undated) he indicated the only event he could attribute the injury to was lifting his toolbox on 9 October 2013.
[107]There were undoubtedly variances in the versions offered by Westhead around the details of the actual movement of the toolbox on 9 October 2013 and there certainly was a failure to report to the employer, his partner or any other person prior to 28 October 2013 the event said to be causative of the injury. However in terms of consistency at no time had Westhead identified an event other than 9 October 2013 as being potentially causative of the injury.
[108]Dr Ballenden upon whose report the Regulator solely relied, provided an interesting report in the context it included commentary about what could be described as Westhead's motivation in seeking to have his claim accepted. At paragraph 16 of his report he stated:
"No, only on the benefit of the doubt given his history, but also the history was inconsistent in that he modified it after being told that his claim would not be accepted".
The telling aspect of this above quotation was that WorkCover had not rejected the application for compensation at that time and in fact were seeking the opinion of Dr Ballenden in the form of an independent medical examination and assessment prior to the acceptance or otherwise of the claim.
[109] In the report at paragraph 14 Dr Ballenden stated:
"This depends on whether WorkCover believe that this is a work-related injury of discogenic pain unrelated to the very minor event at work in the week proceeding, which incidentally he only remembered when he was told that he would not get a WorkCover Claim unless there was an incident, and which was not significant enough to report at the time."
based on the benefit of the doubt given the latency and pre-existing.
[110]This I suggest is further comment of the motivation of Westhead and certainly not in response to the 16 questions (below) that WorkCover had requested him to address:
"1. History as related by Sean Westhead. 2. Relevant past medical history. 3. Current medication. 4.
Examination findings, including tests or investigations required if the diagnosis is still uncertain.
5.
Diagnosis of all work related conditions, please include if any of these are an aggravation of a pre-existing condition.
6.
Relationship of the current work related diagnosis to the stated mechanism of injury.
7.
Any treatment, rehabilitation and return to work recommendations for the work related injury.
8.
In your opinion, is the claimant capable of participating in a suitable duties program? If so, what are the restrictions to be begin the program? If not, is the incapacity due to the work related condition?
9.
Sean Westhead is a Carpenter and before his injury he worked 0 [sic] hours a week. Can you comment on Mr Westhead's capacity to complete his ordinary job and his ordinary hours in the short and long term?
10.
In your opinion, when will there be a capacity to upgrade to full hours and/or duties? If unable to upgrade, what are the barriers impeding on this?
11.
Relevant psychosocial factors that could have an impact on treatment, recovery and return to work.
12.
In your opinion, do you consider the ongoing symptoms to be attributed to the work related injury or to an underlying pre-existing condition?
13. Prognosis.
14. Has the incapacity because of the work related injury stopped? If not, what is the worker's current capacity for work? When do you consider the incapacity will stop?
15. Is the work related injury likely to improve with further medical or surgical treatment? If yes, what further medical or surgical treatment is required and over what timeframe?
16. On balance of probabilities, has the mechanism described caused the claimant's injury?"
[111]Dr Ballenden in evidence said he had ignored the WorkCover referral letter preferring to concentrate on obtaining information directly from Westhead and yet where there were discrepancies he chose not to address them with Westhead. In the material provided to Dr Ballenden he seemingly ignored items of relevance in particular of Westhead having a level of pain for five days prior to the Sunday. Dr Ballenden conceded in cross-examination at times he may not have been precisely accurate but the more worrying aspect of his evidence was the attitude he adopted whilst being cross-examined where on occasion he stated "I'm not commenting further, actually".
[112]I have found it difficult to accept the history recorded and relied upon by Dr Ballenden on 31 October 2013 as accurately reflecting Westhead's circumstances as it diverged from the position he had given WorkCover (at that time) and his evidence in the proceeding.
[113]Dr Cheung's involvement was certainly much later than that of Dr Ballenden and as described by Counsel for the Regulator being at a time when these proceedings were on foot. However those circumstances do not necessarily adversely impact upon the opinions he provided at the request of lawyers acting on behalf of Westhead. Dr Cheung opined:
CT scan findings (15 October 2013) were of a degenerative condition
that pre-dated 9 October 2013; Westhead's injuries were consistent with the circumstances described by
Westhead; the mechanism of injury was a quite significant force with the workplace
incident contributing to the injury; and there was a mechanism of significant strain rather than a more benign
event.
[114]Dr Cheung had accepted it was possible that Westhead had experienced an acute onset of pain caused by his underlying condition that was not related to the work- related event of 9 October 2013 however evidenced it was only fair to give Westhead the benefit of the doubt that the heavier of the two incidents caused his symptoms.
[115]On consideration of both the reports and evidence of Dr Ballenden and Dr Cheung, I have preferred the opinion of Dr Cheung in relation to the causative nature of Westhead's injury being the toolbox incident for the reason it was based upon a more consistent history than the history recorded by Dr Ballenden.
Was the employment a significant contributing factor to the injury?
[116]On the acceptance of Dr Cheung's evidence that the mechanism of injury causative of Westhead's condition was the lifting of the toolbox at work on 9 October 2013, then if follows his employment was a significant contributing factor to the injury pre-dating the onset of pain on 13 October 2013.
Finding
[117]On consideration of the evidence, material and submissions before the Commission, I find that it has been established on the requisite standard of proof that:
on 9 October 2013 Westhead suffered a personal injury in the form of an
aggravation of a pre-existing condition; the causation of the injury was the lifting of his toolbox whilst relocating
from one area of the work site to another; and the personal injury arose out of or in the course of his employment and
the employment was a significant contributing factor to the injury.
[118]The Appeal is upheld and the decision of the Regulator of 13 March 2014 to confirm the decision of WorkCover is overturned.
[119] The claim is one for acceptance.
[120]The Regulator is to pay the Appellant's costs of and incidental to this Appeal to be agreed or, failing agreement to be the subject of a further application to the Commission.
[121] I order accordingly.
Decision
[1] Sean Westhead (Westhead) lodged with the Industrial Registrar a Notice of Appeal pursuant to s 550 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) against a decision of Simon Blackwood (Workers' Compensation Regulator) (the Regulator) released on 13 March 2014.
[2] The decision of the Regulator was to confirm the decision of WorkCover Queensland (WorkCover) to reject the Appellant's application for compensation in accordance with s 32 of the Act.
Relevant Legislation
[3] The Legislation pertinent to this Appeal is 32 of the Act:
"32 Meaning of injury
(1)
An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury."
Nature of Appeal
[4] The Appeal to the Commission is by way of a hearing de novo in which the onus of proof falls upon the Appellant.
Standard of Proof
[5] The standard of proof upon which an Appeal of this nature must be determined is that of "on the balance of probabilities".
Evidence
[6] In the course of the proceedings, evidence was provided by seven witnesses.
[7] The Commission, in deciding to précis the evidence of the witnesses, and submissions, notes that all the material has, for the purposes of this decision, been considered in its entirety.
Witness Lists
[8] The witnesses for the Appellant were:
Westhead; Lisa Rimmer (Rimmer);
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Suzanne Karipa v Q-COMP (WC/2011/453) - Decision <
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