Burke v Simon Blackwood

Workers' Compensation and Rehabilitation Act 2003, s 32, s 550, s144A, s144B

Mr S. Byrne, Counsel instructed by Taylors Solicitors for the Appellant.

Mr R. Clutterbuck, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator), for the Respondent.

[1] Dannielle Burke ("the appellant") appeals a decision of the Review Unit of the Workers' Compensation Regulator ("the respondent") to terminate her entitlement to workers' compensation from 11 July 2014.

[2] The appellant is employed by Hail Creek Coal Pty Ltd as a Mobile Equipment Operator. On 5 December 2013 the appellant sustained injuries to her lower back while the truck she was operating at the Hail Creek Coal Mine was being loaded with overburden.

[3] On 10 December 2013, the appellant lodged an application for workers' compensation in respect of the injuries she sustained. WorkCover Queensland investigated the claim and advised in an email dated 12 December 2013 that the claim was one for acceptance. The appellant was paid benefits from 9 December 2013.

[4] After the December 2013 injury, the appellant was redeployed by her employer to office duties. She was employed in this capacity until late January or early February 2014. After this the appellant resumed normal work under a restricted duties arrangement in which she completed a mix of truck driving and administrative or office duties as well as undertaking physiotherapy as part of her rehabilitation. In terms of truck driving she drove in half-hour sessions for three or four days a week. However she continued to experience pain and a short time after commencing the return to work program she was re-assigned back to administrative functions. She remained working in this capacity until June 2013 when she again commenced a return to work program including her substantive role.

[5] For the first couple of weeks the appellant was restricted to driving for only one hour a day but this was subsequently increased to two one hour sessions. She said at this stage that, for most of the time, her back was "pretty good" but that it was a day to day proposition. She said that some days were better than others. In cross-examination it was put to Ms Burke that Dr Cleveland had written in a report dated 2 October 2014 that the appellant was pain free following six months off operating duty. But the appellant denied that she was pain free at this stage and said that she told Dr Cleveland that her pain was "manageable".

[6] The appellant said that during the early part of July 2014 she was doing two 2 hour driving stints per day and that this had increased to three 2 hour driving stints per day by the end of July 2014. At this point the appellant said in effect that she was experiencing difficulty operating the truck, that her back was getting very tight and stiff, but that she was able to manage with the help of stretching exercises.

[7] WorkCover notified the appellant by letter dated 10 July 2014 of a decision to terminate the entitlement to compensation from 11 July 2014. This decision was based upon the results of a medical report provided by Dr Walker who held the opinion that the appellant's incapacity for work arising out of the injury of the 5 December 2013, had ceased. On 4 September 2014 the appellant sought a review by the regulator of the WorkCover decision. In a decision dated 23 October 2014 the regulator confirmed WorkCover's decision.

[8] On 5 August 2014 the appellant experienced an incident similar to the one that caused her injury in December 2013. Her evidence about what happened is recorded at T1-13:

"I was sitting in the truck, the last load, and the truck's moved from side to side with a shake and I've got that sharp pain in my lower back again. He's put the bucket in and then, as I've gone to drive off, I put my foot on the accelerator and there was just a shooting pain down my right leg.

So this incident sounds similar to the December 2013 incident? Yes.

How would you compare this one with the - if I can call it the original one? I was in significant pain both times. I swapped out immediately because the pain with the second incident didn't decrease and my two hours was also up."

[9] After the 5 August 2014 incident the appellant worked in the office for a short time before commencing a period of sick leave. Her paid leave was exhausted in November 2014 following which she remained off work on unpaid leave. The appellant returned to work on 27 January 2015 under a graduated return to work program. At the time of the hearing of her appeal she was driving trucks for three 3 hour shifts per day. The appellant said that on this occasion her return to work program was progressing successfully and that she had not experienced any significant back pain, nor was she taking any medication.

[10] Since her injury in December 2013, and through until September 2014, the appellant was treated by Dr Cleveland, who was a general practitioner who treated employees of Hail Creek Coal. Dr Cleveland assessed the appellant following both the incident on 5 December 2013 and the incident on 5 August 2014.

[11] In her grounds of appeal the appellant claimed that as at 11 July 2014 and for a period of time thereafter she had a partial incapacity for work as a result of work-related injuries sustained on 5 December 2013. It was further claimed that the appellant continued to require further medical treatment and rehabilitation to improve/manage her work-related injuries. Therefore her entitlement to compensation should not have been terminated.

[12] In defending the appeal the respondent relied on the medical opinion of Dr Walker who concluded on 9 July 2014 that the incapacity for work injury of 5 December 2013 had ceased. In so concluding Dr Walker responded in the affirmative to the following question posed by WorkCover:

"Given timeframes to date and extensive treatment provided, has the incapacity for the work related injury of 5.12.2013, now ceased?"

[13] The issue for determination in this appeal is whether pursuant to s 144A and s 144B of the Workers' Compensation and Rehabilitation Act 2003 (the Act), the appellant's incapacity because of her work-related injury sustained on 5 December 2013 has stopped and whether further medical treatment was likely to improve the injury. The appeal to the Commission is by way of a hearing de novo. To succeed with her appeal, the appellant must establish on the balance of probabilities that her entitlement to compensation should not have been terminated on 11 July 2014.

[14] Sections 144A and 144B of the Act provide as follows:

"144A When weekly payments of compensation stop

(1) The entitlement of a worker to weekly payments of compensation under part 9 stops when the first of the following happens -

(a) the incapacity because of the work related injury stops;

(b) the worker has received weekly payments for the incapacity for 5 years;

(c) compensation under this part reaches the maximum amount under part 6.

(2) If subsection (1)(b) or (c) applies, the worker's entitlement to further compensation for the injury stops.

(3) This section does not limit another provision of this Act that stops weekly payments.

144B When payment of medical treatment, hospitalisation and expenses stops

The entitlement of a worker to the payment of medical treatment, hospitalisation and expenses under chapter 4 for an injury stops when -

(a) the entitlement of the worker to weekly payments of compensation under part 9 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 or hospitalisation."

[15] Dr Coyne examined the appellant on 3 November 2014. It was his opinion that, based on the history provided to him by the appellant, the appellant did not have complete resolution of her symptoms arising from the 5 December 2013 accident before the event at work on 5 August 2014. He said that the appellant "was still symptomatic to some degree at the time of the second injury ---". He gave the following evidence at T1-39:

"... I would say that her first injury hadn't really resolved. And then there was a second injury but there was no kind of new imaging finding as though something completely new had happened. So if straight after the second incident there'd been a scan that had shown like a - an L2 wedge fracture or something like that, so something that was obviously completely different, but where the person has ongoing symptoms and those symptoms are made worse by another incident and there's no new imaging findings to suggest there was an injury new at another site, then I would probably regard that as an aggravation of the initial injury."

[16] The appellant saw Dr Walker on 27 February 2014 and on 8 September 2014. Dr Walker distinguished his position from that articulated by Dr Coyne in the following terms (T1-42):

"Doctor, you have formed a conclusion that is different from Dr Coyne's. Are you able to succinctly identify to the Commission the difference of opinion that you hold and the reasons why? Yes. My view is basically that Ms Burke has suffered from a work injury from the incident in December 2013 and that the radiology and the clinical findings are all consistent with that. But I hold the opinion that she recovered from that particular incident and that the subsequent back pain aggravations were separate incidents."

[17] Dr Walker contested Dr Coyne's opinion in three areas. Firstly he said that significance should not be attached to a bone scan completed by the appellant on 16 December 2014 given that the scan was taken a year after the 5 December 2013 injury and the stress fracture could be expected to have healed by 16 December 2014. Secondly he did not accept Dr Coyne's view that the appellant's injury was not stable and stationary whether by reference to the 5 December 2013 incident or the 5 August 2014 incident when Dr Coyne examined the appellant on 3 November 2014. Thirdly Dr Walker disagreed with Dr Coyne's view that any pre-existing condition or degenerative change did not contribute to the appellant's condition after the 5 December 2013 injury. A further matter in contention was whether the appellant's injury should have resolved within six months.

[18] In his report dated 18 February 2015 (Exhibit 3) Dr Coyne said that an injury of the nature of that sustained by the appellant should have become stable and stationary between six and twelve months following the date of injury. Dr Walker's evidence on this subject (T1-44) was that most people recover from an injury of the type sustained by the appellant within three months, but he accepted that on a more conservative view the recovery period could extend to six months. Having made that concession, he emphasised that in his view six months was the longer of the optional periods particularly in the case of the appellant who was otherwise young and in good health.

[19] Dr Walker took the view that degenerative change explained and distinguished the appellant's episodes of pain after she returned to her substantive role in June 2014. It was Dr Walker's evidence that when the appellant resumed work in June 2014 her stress fracture had basically resolved and that after her return to work she experienced another, but different, episode of pain derived from a change in the appellant's pathology which involved an underlying degenerative condition which had been established on the imaging. In this regard Dr Walker relied on an examination of three MRI's taken of the appellant's lumbar spine on 8 February 2014, 5 June 2014 and 15 August 2014.

[20] Dr Coyne accepted that a comparison between the MRI reports dated 8 February 2014 and 5 June 2014 disclosed a subtle change which was consistent with degeneration. The more difficult question for him was whether the injury the appellant sustained on 5 December 2013 contributed to the degeneration. A further MRI was taken on 15 August 2014. In this regard Dr Coyne said that the imaging showed that condition of the lumbar spine was relatively stable between June 2014 and September 2014.

[21] Dr Coyne did not agree that the pain experienced by the appellant in June and July 2014 could be isolated from the 5 December 2013 injury and explained solely by the degenerative changes seen on the imaging. His view that the degenerative changes were subtle or of little significance was however challenged by Dr Walker who suggested that (T1-45) Dr Coyne did not adequately explain or consider the impact on the appellant of the degenerative changes.

[22] While Dr Coyne initially described the 5 August 2014 incident as an "aggravation", he subsequently said that the August 2014 injury might more correctly be described as an "exacerbation". He then went on to give the following evidence at T1-39:

"Doctor, would you agree with me that it's effectively a worsening of symptoms or an extending of the period of recovery? Yes, that's a - a good definition. I think I'd - if Ms Burke's history was that she got completely better and had no symptoms, and then returned to work and then in August 2014 had another incident, then probably my opinion would be - it would be regarded as a new injury. So I think - that, as I've said, the two significant points are not actually getting better from the first incident and then not having any subsequent imaging to demonstrate that there was some new site of injury to explain the worsening symptoms."

[23] Section 144A of the Act provides that the entitlement of a worker to weekly payments of compensation stops when the incapacity because of the work related injury stops. The question of when the incapacity stops is a matter for determination on the evidence.

[24] It was the appellant's evidence that at the time that WorkCover took the decision to stop the entitlement, she was not pain free, her incapacity for work had not fully resolved, and she was only capable of performing her substantive role for two hours per day.

[25] The respondent on the other hand relied on contents of the appellant's time sheets in the evidence as Exhibit 1, and on correspondence written by Dr Cleveland dated 2 October 2014 in which he stated that "subsequently, with six months off operating duty, she improved and was pain free". While this statement was put to the appellant during cross-examination, Dr Cleveland was not called to give evidence and his report was not tendered. In these circumstances, and given that the appellant denied that she had told Dr Cleveland that she was pain free, the respondent is not able to get much traction with this line of defence.

[26] The respondent submitted that an analysis of the time sheets showed that the appellant's attendance on her physiotherapist and her participation in pilates classes had ended before her return to work program commenced in June 2014. This evidence was consistent with an outcome that the appellant's injury had resolved and that her benefits should end.

[27] The appellant had recorded appointments for physio and pilates sessions on the time sheets. The time sheets covered the period from 3 February 2014 to 13 June 2014. The last physio appointment included in the time sheets was for 22 May 2014 while the last entry referring to a pilates session was for 2 April 2014. The respondent put to the appellant in cross-examination that the diminishing frequency of physio and pilates appointments provided a clear indication that the appellant was getting better and that she did reach a point in June 2014 where she was pain free. It was the appellant's evidence however that she continued with her own regime of exercises and activities after stopping her participation in physio and pilates.

[28] The decision of WorkCover to terminate the payment of compensation to the appellant was based on a report provided by Dr Walker on 9 July 2014 (Exhibit 9) in which he expressed the opinion that the worker's incapacity for work arising out of the injury of 5 December 2013 had ceased. Dr Walker's opinion was expressed in the form of a response to questions posed by WorkCover in a facsimile sent to Dr Walker on 18 June 2014. The questions posed by WorkCover were preceded by the following introductory comments:

"You recently reviewed Dannielle Burke, and your prompt response to this fax will help WorkCover Queensland make timely decisions about the coordination of treatment and return to work management that will benefit your patient.

Ms Burke sustained an injury to her back on the 5.12.2013 when she felt a jolt in the vehicle she was operating. It has now been six months since the event at work and yesterday returned to operational duties restricted initially to one hour per shift.

Recently a repeat MRI and functional capacity evaluation was completed. Please see attached results."

[29] The reference in the WorkCover facsimile to an earlier review by Dr Walker referred to an examination of the appellant by Dr Walker on 27 February 2014. The reference to a repeat MRI is presumed to refer to the MRI taken on 5 June 2014 which is in the evidence as Exhibit 5. A copy of the functional capacity evaluation was not tendered. The appellant's time sheets confirm that she attended on Dr Cleveland on 2 June 2014, completed a functional capacity evaluation on 3 June 2014, and attended the Mater Hospital for an MRI on 5 June 2014.

[30] Neither of the specialists' opinions were contemporaneously aligned with the key events. Dr Walker's opinion on 9 July 2014 that the appellant's 5 December 2013 injury was stable and stationary was formed "on the papers" and arrived at some 18 weeks after his examination of the appellant on 27 February 2014. While according to Exhibit 8 he would have been expected to have taken into account the MRI scan of 5 June 2014 and the evaluation assessment completed on 3 June 2014, his conclusion was arrived at without the benefit of a physical examination.

[31] The thrust of Dr Walker's evidence however was that a further examination was not necessary because in his experience the appellant's injury should have resolved itself within three to six months from the date of injury. Given that seven months had elapsed when the question was put, Dr Walker was in no doubt that the injury should have resolved itself at this point. This view was consistent with the report that Dr Walker had prepared following his examination of the appellant on 27 February 2014 (Exhibit 8). In this regard the report stated:

"Her prospects in the long term are good. It can take a few months for the symptoms to resolve completely. At this point in time I think it is reasonable that she continue with light duties in the office in Mackay for the next month and return to work perhaps in a graduated program over the following one to two months. Ongoing physiotherapy and strengthening of the back is important at this stage."

[32] Dr Coyne did not examine the appellant until November 2014 and relied in expressing his opinions on a history provided to him by the appellant. In the circumstances of this case however where the appellant's version did not change under cross-examination and no competing evidence was called, Dr Coyne's report cannot be challenged to the extent that it relies on a history provided by the appellant.

[33] Dr Walker's opinion also relied on a view that any pain experienced by the appellant upon her return to work in June 2014 would have been caused by a natural degeneration which was unrelated to the injury sustained at work in December 2013. In his view the symptoms associated with this injury had resolved.

[34] While the degeneration was confirmed by MRI scans, the evidence after the event suggested that the degeneration did not ultimately preclude the resolution of the appellant's symptoms in circumstances where she had reached a point in her 2015 return to work program where she was engaged in machine operation for nine hours a day, was pain free, and was not restricted in the performance of her work. If naturally occurring degeneration had hindered her machine operation functions in June or July 2014 it would have been expected that the same condition would have produced no less an effect in 2015 (without surgical intervention or other treatment). Notwithstanding this it can be accepted that while degeneration may have been a non-work related factor slowing the appellant's recovery in July 2014, it was not the only factor influencing the appellant's symptomology in July 2014.

[35] The determination that I have to make is whether the appellant's entitlements should have been terminated on 11 July 2014. A conclusion that the appellant's injury was not stable and stationary at 11 July 2014 is supported by her own evidence that significant pain or discomfort, albeit experienced intermittently, was persisting through June and July 2012, and by the nature of her graduated return to work program which provided on commencement for only one hour per day of truck driving. This particular set of facts is also more consistent with Dr Coyne's opinion that the appellant's injury could take more than six months to resolve.

[36] In the end result I prefer the position advanced by the appellant in that the injury was viewed logically along a continuum where after the 5 December 2013 incident the appellant was assigned to light duties before unsuccessfully participating in a return to work program in late January 2014 which included machine operating duties. When the program was abandoned the appellant again reverted to light duties before commencing another graduated return to work program in June 2014. While the appellant progressed further on this occasion, this program was also unsuccessful, an outcome which was attributable, wholly or partially, to the set back that occurred on 5 August 2014. This continuum, consistent with Dr Coyne's evidence, did not acknowledge any significant change in pathology and accepts, on the balance of probabilities, a continuing association between the appellant's symptoms and the work-related injury on 5 December 2013.

[37] It follows that I accept the appellant's argument that the regulator acted prematurely in terminating compensation or benefits when it did and that the appeal should be allowed. This finding is reached in respect to both s 144A and s 144B. In respect to s 144B I accept that there is sufficient evidence about the nature of the injury to support a finding that in circumstances where the appellant's injury was not completely resolved by 11 July 2014, it was likely that the injury might improve with further treatment.