QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	
	Tapp v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 123
	
PARTIES:	
	Tapp, Vivian Wilfred
(Appellant)

v

Simon Blackwood (Workers' Compensation Regulator)
(Respondent)
	
CASE NO:
	WC/2015/8	
PROCEEDING:
	Appeal against decision of Simon Blackwood (Workers' Compensation Regulator)
	
DELIVERED ON:
	29 June 2015	
HEARING DATE:
	15 and 16 June 2015
	
MEMBER:
	Industrial Commissioner Fisher	
ORDERS:
	1.	The appeal is dismissed.
2.	The decision of the Regulator is confirmed.
3.	Costs are reserved.
	
CATCHWORDS:	WORKERS' COMPENSATION - APPEAL AGAINST DECISION - appellant sustained back injury - paid weekly expenses and medical treatment expenses for his injury in accordance with ss 144A and 144B - whether the Regulator's decision to cease weekly benefits and treatment expenses was wrongly made - onus rests with the Appellant - whether the condition resulting from the aggravation is compensable - based on specialist medical evidence Commission cannot find the decision of the Regulator was wrong - appeal dismissed.
	
CASES:	Workers' Compensation and Rehabilitation Act 2003, s 32, s 144
State of Queensland (Queensland Health) AND Q‑COMP AND Beverley Coyne [2003] 172 QGIG 1447
	
APPEARANCES:	Mr V.W. Tapp, the Appellant, in person.
Dr M. Spry, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator) for the Respondent.

Decision

[1]	Vivian Tapp claims to have sustained a back injury when he slipped on a plastic strap and fell on his buttocks at his place of employment on 26 February 2014.  Mr Tapp was initially denied workers' compensation benefits for this injury but the decision was reversed by the Workers' Compensation Regulator.  Mr Tapp's employer, Volvo Commercial Vehicles Australia Pty Ltd, appealed that decision to the Queensland Industrial Relations Commission (WC/2014/229).  The decision in that appeal is pending.

[2]	Mr Tapp was paid weekly compensation payments and medical treatment expenses for his injury in accordance with ss 144A and 144B respectively of the Workers' Compensation and Rehabilitation Act 2003.  He received physiotherapy and was prescribed pain medication.  When the injury did not settle, his General Practitioner, Dr Patel, referred Mr Tapp to Dr David Walker, Neurosurgeon, Briz Brain and Spine.  In his report of 28 August 2014, Dr Walker advised WorkCover Queensland that the work related fall had aggravated Mr Tapp's age related degenerative change in his spine and was causing his symptoms.  He referred to treatments that had been provided to Mr Tapp without success.  In the circumstances he recommended surgery, which was for the work injury, and not the pre‑existing component.

[3]	WorkCover sent Mr Tapp for an independent medical examination with Dr Michael Coroneos, Neurosurgeon.  In his report of 1 September 2014, Dr Coroneos opined that the reported fall may have caused either a lumbar soft tissue strain or an exacerbation of pre‑existing degeneration.  He further opined that the effects of the work fall would have ceased within six to eight weeks at most and any ongoing symptoms may be due to the effects of longstanding pre-existing multilevel lumbar degenerative disc disease in the seventh decade of adult life.

[4]	Dr Coroneos' report was provided to Dr Walker by WorkCover for his consideration and response to particular questions.  In relation to Dr Coroneos' report, Dr Walker responded on 10 September 2014 that:
	"The report is reasonable and I cannot argue with the opinion given."

[5]	Dr Walker also expressed the opinion that if surgery was not performed, Mr Tapp's injury was stable and stationary.

[6]	WorkCover ceased paying Mr Tapp weekly compensation payments and medical treatment expenses on 3 October 2014.  That decision was confirmed on review by the Regulator.  Mr Tapp has appealed the decision on the basis that he continues to suffer pain and other symptoms which he attributes to the work related fall.  Although he had other back injuries over his employment, his back was not symptomatic before 26 February 2014.

[7]	Mr Tapp has not worked for Volvo since sustaining the injury.  He says he still suffers severe pain, is largely house bound, is limited in his movement and continues to take pain medication.

Findings and Conclusion

[8]	It is not the remit of this appeal for the Commission to determine whether Mr Tapp sustained a work related injury.  For the purposes of these proceedings, I have assumed that the injury meets the requirements of s 32 of the Act.  The concern of this appeal is only whether the Regulator's decision to cease weekly benefits and treatment expenses was wrongly made.  The onus rests with Mr Tapp to establish that the Regulator's decision should be set aside and his claim continued.

[9]	Dr Coroneos notes in his report that the MRI taken of the lumbar spine on 16 July 2014 shows that all of the changes are of "multilevel advanced anterior and posterior degenerative changes".  A CT scan on 20 March 2014 revealed similar results.  

[10]	In his oral evidence Dr Coroneos said that as an independent medical examiner he took into account that Mr Tapp had no preceding symptoms, his age, medical health and a description of the incident.  He also reviewed Mr Tapp's medical records and scans and examined him.  Applying his medical knowledge and training to all of this information he formed the opinion expressed in his report of 1 September 2014 that the effects of Mr Tapp's injury were either a soft tissue strain or an exacerbation of an underlying degeneration.  He described the exacerbation as a temporary worsening; an aggravation.

[11]	Dr Coroneos explained that the continuing symptoms being experienced by Mr Tapp did not necessarily arise from the fall but could be caused by degenerative changes. 

[12]	Once provided with Dr Coroneos' report, Dr Walker did not take issue with it.  Although Dr Walker was on Mr Tapp's list of witnesses, he elected not to call Dr Walker to give evidence about the apparent difference between his two opinions.  Of the two opinions given by Dr Walker the Commission has placed greater weight on his second opinion formed in light of the report of Dr Coroneos.

[13]	Mr Tapp's General Practitioner, Dr Patel, was of the opinion that the ongoing symptoms are attributable to the fall.  However, he deferred to the opinions of the Neurosurgeons and did not take issue with either of them.  The Commission prefers the opinion of medical specialists by virtue of their training, knowledge and expertise.

[14]	The difficulty for Mr Tapp is that his treating Neurosurgeon, Dr Walker, now has an opinion consistent with that of Dr Coroneos.  Further, the opinion of his General Practitioner is outweighed by the specialist medical opinion.

[15]	The specialist medical opinion is that the symptoms caused by the fall would have resolved in six to eight weeks.  Further, the continuing symptoms being experienced by Mr Tapp are a consequence of the underlying, pre-existing degenerative disease and not the fall.  He therefore cannot be compensated for his ongoing symptoms.

[16]	Based on the specialist medical evidence, which is all one way and against the position of Mr Tapp, the Commission cannot find that the decision of the Regulator was wrong.

Orders

[17]	The Commission makes the following Orders:

1.	The appeal is dismissed.
2.	The decision of the Regulator is confirmed.
3.	Costs are reserved.