CITATION: Danny Weston AND Q-COMP (WC/2012/35) - Decision < QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

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1 CITATION: Danny Weston AND Q-COMP (WC/2012/35) - Decision < QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers Compensation and Rehabilitation Act s procedure for appeal Danny Weston AND Q-COMP (WC/2012/35) INDUSTRIAL COMMISSIONER KNIGHT 13 September 2013 DECISION [1] This is an appeal by Mr Danny Dale Weston (the Appellant) against a decision of the Review Unit of Q-COMP (the Respondent) dated 3 January The Q-COMP decision confirmed the earlier decision of WorkCover Queensland (the Insurer) to terminate the Appellant's entitlement to compensation from 24 August 2011, pursuant to ss. 144A and 144B of the Workers Compensation and Rehabilitation Act 2003 (the Act), on the basis that the incapacity arising out of the work-related injury had stopped, and medical treatment was no longer required to manage the work-related injury. [2] The Appellant's claim for weekly compensation arises from his employment as a Glass Processing Labourer with the Department of Public Works, Q-Build (the Employer). [3] WorkCover Queensland originally accepted the Appellant's workers' compensation claim for the injury, but following consideration of an independent medical report from Dr Michael Coroneos which formed part of a review of the claim, the Insurer terminated the Appellant's entitlement to weekly compensation payments, medical treatment and other related expenses from 24 August [4] On 21 November 2011, the Appellant applied for a Review of the Insurer's decision with Q-COMP. In its decision dated 3 January 2011, Q-COMP confirmed WorkCover Queensland's decision and determined the medical evidence does not support the assertion the Appellant's ongoing incapacity is a result of his work-related condition. Brief History of the Appellant s Claim for Compensation [5] The Appellant was employed as full-time glazier with Q-Build, having commenced employment on 1 June The Appellant had previously made another claim for workers' compensation in 2009 for a neck injury. [6] On 21 July 2011, the Appellant lodged a claim for workers' compensation for a neck injury (Exhibit 1) after "lifting heavy glass" at work on 13 July The insurer sent a letter (Exhibit 2) to the Appellant dated 3 August 2011 advising his claim for a "flare up of neck pain" had been accepted. [7] The Appellant's General Practitioner, Dr Sook Pin Ho issued a series of workers' compensation medical certificates from 13 July 2011 until 15 August 2011, at which time his capacity was assessed as being fit to return to normal work duties (with some weight restrictions) for 2 hours a day, 3 days per week. [8] On 15 August 2011, the Insurer arranged for Dr Michael Coroneos to conduct an independent medical examination and review of the Appellant and his injury. [9] On 23 August 2011, WorkCover wrote to the Appellant (Exhibit 3) advising Dr Coroneos was unable to find any evidence of a significant spinal injury occurring and could not find any ongoing symptoms or incapacity for work as a result of the Appellant's work activities on 13 July [10] The Appellant was subsequently advised by letter that Dr Coroneos was unable to find any ongoing symptoms or incapacity to prevent Mr Weston from returning to work and was therefore no longer entitled to any further weekly compensation payments and other related medical expenses as of 24 August [11] The Appellant submitted an Application for Review form to Q-COMP on or around 21 November [13] On 3 January 2011, Q-COMP issued its Review decision confirming the decision of the Insurer to terminate the Appellant's entitlement to compensation from 24 August 2011, in accordance with ss. 144A and 144B of the Act. [14] On 1 February 2012, the Appellant's (then) legal representatives filed a Notice of Appeal seeking that his workers' compensation claim "be reinstated on the basis that the Appellant's work related incapacity continues and he requires ongoing treatment and rehabilitation".

2 2 Issues for Determination and Onus of Proof [15] The main issues in contention between the parties is whether the Appellant's injury or aggravation since 24 August 2011, in the context of these proceedings, arose out of or in the course of his employment, and that his employment is a significant contributing factor and therefore, whether Q-COMP has erred in ceasing the Appellant s entitlement to weekly compensation and payments of medical treatment and other expenses. [16] The Appellant bears the onus of proof. For the appeal to succeed, the Appellant must prove on the balance of probabilities, that: he suffered an injury; the current symptoms and/or injury he is suffering from 24 August 2011 arose out of or in the course of his employment with the employer; and the Appellant's employment was a contributing factor to the current symptoms/injury he says he is suffering. Relevant Legislation [17] Section 32 of the Act relevantly provides as follows: "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. (3) Injury includes the following -... (b) an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation - (i) a personal injury; (ii) a disease; (iii) a medical condition if the condition becomes a personal injury or disease because of the aggravation; (4) For subjection (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.". [18] Section 114 of the Act relevantly provides 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.".

3 3 The Evidence [19] In addition to his own evidence, during the course of the proceedings the Appellant also relied on the evidence of: Mr Michael Todhunter - Physiotherapist, Holland Park Physiotherapy Centre. [20] Whilst the following specialists were not called to give evidence and were not available for cross-examination, the Appellant also tendered reports from Dr Sook Pin Ho - General Practitioner (Exhibit 11), Dr Gillett - Orthopaedic Surgeon (Exhibit 12), Dr Robert McCartney - Occupational Physician (Exhibit 7), Stephen Hoey, Occupational Therapist (Exhibit 15) and Dr Phillip Watson - Pain Specialist (Exhibit 16). [21] A number of these reports were produced by the Appellant in the course of the hearing with no notice. Whilst the Respondent raised concerns around the difficulties associated with producing medical reports at such late notice, Counsel for the Respondent raised no objections to the Reports being tendered. [22] Q-COMP relied upon the evidence of: Dr Michael Coroneos - Neurosurgeon [23] The Appellant gave evidence his General Practitioner, Dr Sook Pin Ho, issued a medical certificate following an incident at Holland Park State School on the 13 July 2011 when he was lifting up some doors and felt pain in his neck and shoulders. [24] Dr Sook Pin Ho subsequently prepared a referral for Mr Weston to see a specialist Dr Webster; however the Insurer also requested the Appellant attend an examination by Dr Coroneos on 15 August The Appellant's workers' compensation payment and associated medical expenses were stopped after Dr Coroneos provided his report to the Insurer. [25] Separately, the Appellant said he went ahead with his appointment with Dr Webster notwithstanding he was now required to pay for the appointment himself due the fact his payments had been stopped. [26] The Appellant contends he entered into a team care arrangement that involved himself, Mr Todhunter and a specialist, Dr Webster, after which he submitted himself to further medical treatment and medical examinations including a bone and a CT scan [27] Under cross-examination, the Appellant said he took issue with certain aspects of Dr Coroneos' report. [28] In addition to identifying a section of the report in which Dr Coroneos had indicated "no injury occurred", the Appellant was particularly concerned about a paragraph where Dr Coroneos stated he had been asked by the Appellant to assist him to remove his boots and other parts of his clothing at one point stating: "there was no issue in me trying to get that clothing off.", But later clarifying that he (the Appellant): " did have a lot of difficulty removing items off his body at the time of his assessment. And in this report it - Dr Coroneos says that there should be no reason that I had difficulty removing my clothing. So that's the part I disagree with.". (T1, P22, L20-30) [29] During the course of giving his evidence, the Appellant, who was unrepresented in the proceedings, referred to some involvement (separate to these proceedings) he had with the Insurer in relation to his participation in a number of medical examinations associated with an assessment for permanent impairment, out of which the reports by Dr McCartney and Dr Gillet had arisen (Exhibits 7 and 12 respectively). [30] Mr Michael Todhunter, a Physiotherapist from Holland Park Physiotherapy Centre, gave evidence he examined and treated the Appellant over two separate periods, the first being from August 2009 in relation to a neck injury that is not the subject of these proceedings and the second occasion being a period from August [31] On examination of the Appellant, Mr Todhunter reported he found muscle tightness and spasm of the neck, the paravertebral muscles and the muscles extending down to the shoulders. Mr Todhunter recalled that at the time he was of the view that the symptoms the Appellant was complaining of were consistent with the nature of his work activities.

4 [32] In his report dated 10 December 2012 (Exhibit 9), Mr Todhunter wrote: 4 "I have been asked to comment on Danny Weston's work capacity at the time of the closing of his compensation claim in August As previously reported, he had both muscle tightness and spasm of the neck muscles that extended down into the shoulder region bilaterally. Further, I believe the symptoms of which he was complaining to be consistent with the nature of his work at that stage. I am of the opinion that his work capacity at that time to have been impaired or reduced, given what was found at the time of assessment.". [33] On being referred to the report of Dr Coroneos (Exhibit 13) which concluded the specialist had been unable to find any evidence of neurological damage to the spine and asked about his views about such a conclusion, Mr Todhunter responded that he did: "... accept his (Dr Coroneos ) viewpoint that, yes, there was investigations done on the neck and that he could find no neurological evidence of damage to the neck.". (T1, P15, LL50-60) [34] On cross-examination, Mr Todhunter agreed with the proposition that the basis of his treatment of Mr Weston is an acceptance of the historic account of his ailments and, further, that there is a significant distinction between looking at someone from the medico-legal perspective and reporting as a treating professional. (T1, P18, LL1-10) Evidence of Dr Coroneos [35] Dr Coroneos, a specialist neurosurgeon, gave evidence he conducted an assessment of the Appellant at the request of the Insurer on 15 August On the same day he compiled and submitted a report about the examination of Mr Weston and his conclusions. The report contained references to the presenting history, clinical investigations (including three radiologist's reports) and references to the WorkCover file. [36] Dr Coroneos' report (Exhibit 15) included the following conclusions: " I performed clinical, musculoskeletal and neurological examinations and could find no significant abnormality. There were inconsistencies of presentation. There is no reporting of brachia or sciatica. There is no systemic features of illness; I viewed both CT's and the plain x-rays and aside from minor degeneration I could find no significant abnormality; I am unable to find any evidence of a significant neurosurgical spinal injury having occurred to account for ongoing symptoms and stated incapacity including inability to return to his normal occupation activities. I could find no requirement for neurosurgical intervention and I can find no evidence of a significant neurosurgical spinal injury having occurred as a result of the reported activity on 13 July 2011; I was unable to reliably measure his cervical, thoracic or lumbar movements as he advised he could not move. There were inconsistencies in that he had normal straight leg raising and positive responses to gentle cranial compression with the reporting of neck pain; I am unable to find a basis or requirement for a drug which can cause dependency, habituation and withdrawal such as Valium; I would recommend that you enquire upon Dr Sook Pin Ho as to the basis for the ongoing symptoms, incapacity and requirement for drugs such as Benzodiazepines.". [37] Dr Coroneos' gave evidence that if a patient reports that they are unable to demonstrate any lumbar movement in a standing position, yet in a supine position demonstrates straight leg raising capacity of 60 degrees that indicates that they effectively have normal range of lumbar movement. (T1, P29, LL 20-30) [38] In response to questioning around the significance of positive responses to gentle cranial compression, Dr Coroneos said: " That's a non-organic sign and when one gently compresses on top of a patient's head that shouldn't cause any symptomatology whatsoever and in this case it resulted in the reporting of pain which is a non-organic response to examination.". (T1, P29,LL30-50) [39] When referred to the report of Dr Phillip Watson pain specialist (Exhibit 16), which included commentary in relation to the Appellant s symptoms and a number of medical examinations that had been undertaken, Dr Coroneos stated: "I think if a nuclear bone scan x-ray, CT and MRI are normal I think it can be fair fair to say that there s no evidence of any significant pathology involving the cervical spine.".

5 5 [40] Under cross-examination, Dr Coroneos stated that he did not observe any muscle spasm of the type referred to by Mr Todhunter, so was unable to comment on his findings. [41] In response to questioning from the Appellant around whether it was possible to have a musculoskeletal injury and not show anything on x-ray, Mr Coroneos said: " you can, but it would not be a significant injury that would cause ongoing symptoms for more than a few weeks.". Other Medical Reports [42] During the course of the proceedings the Appellant (with no objection from Q-COMP other than preliminary concerns raised about the Appellant producing a number of the reports with no or very limited notice), tendered a number of other reports from Doctors Gillet (Exhibit 12), Watson (Exhibit 16), McCartney (Exhibit 7) and Sook Pin Ho (Exhibit 11), as well as further report from Mr Stephen Hoey, Occupational Therapist (Exhibit 15). Neither the Doctors nor Mr Hoey were called to give evidence which meant they were not available to be cross-examined. [43] Aside from Dr Sook Pin Ho's letter to WorkCover dated 1 September 2011, which responded predominantly to Dr Coroneos' concerns around the prescribing of certain pain medication to the Appellant, a close examination of these reports reveals content which predominantly deals with the examination and assessment of the Appellant and his reported injury in the context of symptomology, permanent impairment and/or suggestions around treatment. [42] Aside from the report of Mr Todhunter, the Physiotherapist (Exhibits 9 and 10), the medical reports submitted by the Appellant do not appear to contain any content which attempts to link the Appellant's current symptoms and/or injury to his workplace activities on 13 July [43] Whilst highlighting that Dr Coroneos gave evidence he disagreed with Dr McCartney's acceptance that 1/5 th of a total impairment of 5% was related to workplace factors, Q-COMP submitted one of the passages in Dr McCartney's report dated 12 November 2012 (Exhibit 7) mirrored the views and opinions of Dr Coroneos when he stated: "This fellow has pre-existing underlying changes in the cervical spine. The lifting incident resulted in a muscular strain and aggravation of the underlying pathology. He has made a good recovery from the work-related injury and his ongoing symptoms are primarily due to the pre-existing underlying condition. He reports he has had ongoing intermittent neck pain since the incident in 2009 and I think that is the ongoing symptomatology. ". [44] In his written submission, the Appellant referred to Mr Gillet s report dated 1 June, 2012 (Exhibit 12) where he stated: "Today's assessment, he has pain associated with the upper neck and the right lower cervical spine and paravertebral trapezial area. All movements are restricted by approximately half the normal range of motion. All movements are associated wih guarding of movement. Pin is recorded n all movements. Generally he presents throughout the consultation as a person with a stiff neck. There is no spontaneous motion of the neck. Today s assessment does not indicate any abnormal illness behaviour findings such as local superficial tenderness or range of motion which is observed in a distracted position being greater than the observed range of motion.". [45] The Appellant contends this statement by Mr Gillet indicates he is in a stronger position to comment on the injury than Michael Coroneos who stated in his report dated 15 August 2011, at page 5, Exhibit 13: "I was unable to reliably measure his cervical, thoracic or lumbar movements as he advised that he could not move.". [46] The Appellant s written submissions also highlighted various aspects of Dr Watson and Dr Gillets reports which included commentary around treatment Mr Weston had undergone and observations about the Appellant's symptoms following further examinations. However, the Appellant was unable to articulate a link between those reports, his current reported symptoms and his workplace activities on 13 July, 2011.

6 6 Considerations and Findings [47] There is no contest in these proceedings that WorkCover initially accepted the Appellant s claim for compensation in respect to a "flare-up" to his neck injury sustained on 13 July 2011 and further, that the insurer terminated the Appellant's entitlement from 24 August 2011 on the basis the medical evidence did not support the assertion the Appellant continued to suffer from the effects of his work-place injury. [48] In this appeal, Mr Weston is required to prove on the balance of probabilities that his reported ongoing symptoms from 24 August 2011 arose out of, or in the course of his employment as a glazier with Q-Build following the workplace activities of 13 July [49] To achieve this Mr Weston must be able to demonstrate (on the balance of probabilities) that his work has been a contributing significant factor to any ongoing symptoms or injury he continues to suffer. [50] More specifically in this appeal, the Commission is required to consider the question of whether the ongoing pain and discomfort reported by Mr Weston after 24 August is causally related to the workplace incident which occurred on 13 July [51] The Respondent contends the medical evidence called by the Appellant does little to establish any linkage between any current symptoms and the workplace events of 13 July Further, that the materials provided to the Commission and the evidence of the Appellant only establishes that he continues to experience symptoms and that such symptoms are explained by the existence of an underlying constitutional degenerative condition rather than due to any work-related condition. [52] Whilst Q-COMP concedes Mr Weston might have initially suffered from a condition of short term duration, it contends the uncontradicted evidence of Dr Coroneos is that the Appellant no longer suffers from any work-related condition and further, that any condition he may have had has now well and truly abated. [53] In contrast, the Appellant has submitted Workcover Queensland's initial decision to terminate his weekly compensation and access to medical expense payments was based solely on Dr Coroneos report and that it was made wrongly, given it is obvious an injury did exist at the time of the 15 August 2011 examination, and that it was being managed. [54] The Appellant further contends that whilst there may be no overt neurological damage to the spine, his view is that he has a musculoskeletal injury which he says can be supported by the evidence of Mr Todhunter and the pain and tenderness associated with the spasms in his neck and shoulders resulting in a loss of movement. [55] After considering all the evidence and the submissions before the Commission, I am of the view the Appellant has failed to discharge his onus of proof. There is no substantive evidence before the Commission that links any current reported symptoms to his workplace, other than the evidence of Mr Todhunter. [56] Mr Todhunter has readily conceded that he accepted Dr Coroneous' viewpoint that he was unable to find any neurological evidence. Further, Dr Coroneos evidence under cross-examination was that even if the injury was of a musculoskeletal nature that was unable to be picked up though an X-ray, that it would not be a significant injury that would cause ongoing symptoms for more than a number of weeks. [57] In failing to lead any medical evidence linking his current symptoms to his workplace, the Appellant cannot sustain his appeal. The evidence of Dr Coroneos is that he was "unable to find any evidence of a significant neurosurgical spinal injury having occurred to account for the ongoing symptoms and stated incapacity including inability to return to his normal occupation activities". [58] In the circumstances of the case, there is insufficient evidence upon which I could find, on the balance of probabilities that the Appellant's injury or aggravation since 24 August 2011, in the context of these proceedings, arose out of or in the course of his employment, and that his employment is a significant contributing factor and further, that Q-COMP has erred in ceasing the Appellant s entitlement to weekly compensation and payments of medical treatment and other expenses. [59] I dismiss Appeal No. WC/2012/35 and confirm the decision of Q-COMP dated 3 January [60] I reserve the question as to costs.

7 7 [61] I order accordingly. M.L. KNIGHT, Industrial Commissioner. Hearing Details: December December (Respondent's written submissions) January (Appellant's written submissions) Appearances: Mr D. Weston, the Appellant on his own behalf. Mr C. Clark of Counsel, directly instructed for the Respondent. Released: 13 September 2013