QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:
	Adcock v Workers' Compensation Regulator [2021] QIRC 227

PARTIES:	
	Adcock, Malcolm 
(Appellant)

v

Workers' Compensation Regulator
(Respondent)
	
CASE NO.:
	WC/2019/64
	
PROCEEDING:
	Appeal against decision of Workers' Compensation Regulator

DELIVERED ON:
	25 June 2021
	
HEARING DATES:

SUBMISSIONS: 
	26 and 27 October 2020

Appellant's submissions: 12 January 2021

Respondent's submissions: 27 January 2021

Appellant's submissions in reply: 10 February 2021
	
MEMBER:

HEARD AT:	Power IC

Brisbane 

ORDERS:
	1.	That the decision of the Workers' Compensation Regulator be set aside.

2.	That pursuant to s 144A of the Workers' Compensation and Rehabilitation Act 2003 (Qld), the Appellant's incapacity is determined to have ceased as at 30 November 2017.

3.	That pursuant to s 144B of the Workers' Compensation and Rehabilitation Act 2003 (Qld), the Appellant's requirement for medical treatment continued until 27 February 2018, being 20 business days following receipt of the notice of assessment and offer pursuant to s 190. 

4.	That the Respondent pay the costs of and incidental to the appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission. 
	
CATCHWORDS:	WORKERS' COMPENSATION – APPEAL AGAINST DECISION OF WORKERS' COMPENSATION REGULATOR – cessation of compensation and benefits – whether incapacity for work had ended when weekly payments ceased – whether the requirement for medical treatment had ended when benefit ceased.
	
LEGISLATION:

	Workers' Compensation and Rehabilitation Act 2003 (Qld), ss 9, 32, 144A, 144B, 190, 211 and 226 
	
CASES:	Adcock v Workers' Compensation Regulator [2017] QIRC 086

Arnotts Snack Products Pty Ltd v Yacob (1985) 57 ALR 229

Brown v Dunn (1893) 6 R 67

Colbran v Workers' Compensation Board of Queensland (1996) 152 QGIG 1180

Commonwealth v Verwayen [1990] HCA 39

Davidson v Blackwood [2014] ICQ 008

Jewsbury v Workers' Compensation Regulator [2019] QIRC 83

Qantas Airways Limited v Q-Comp (2006) 181 QGIG 301

Thompson v Armstrong & Royce Pty Ltd (1950) 81 CLR 585
	
APPEARANCES:	Mr A. Wright of Boylan Lawyers for the Appellant. 

Ms D. Callaghan of Counsel directly instructed by the Respondent.

Reasons for Decision
	
	Introduction 

[1]	Mr Malcolm Adcock ('the Appellant') appeals a decision of the Workers' Compensation Regulator ('the Respondent') to confirm an earlier decision of WorkCover Queensland ('WorkCover') to cease weekly payments and benefits arising from an injury that had been accepted as compensable under the Workers' Compensation and Rehabilitation Act 2003 (Qld) ('the Act'). 

[2]	The Appellant had been employed by KJM Contractors Pty Ltd ('the Employer') as a camp cook when he sustained an injury to his left ankle, described as 'left lateral ligament complex strain', on 25 August 2015 while carrying a box out of the freezer.

[3]	The Appellant lodged an application for compensation on 29 October 2015 which was rejected by WorkCover. Following an application to the Respondent for review of this decision, the Respondent referred the matter back to WorkCover for further investigations. After further investigations were made, WorkCover, again, rejected the Appellant's application with this decision confirmed by the Respondent upon review. The Respondent's decision was appealed to the Queensland Industrial Relations Commission ('the Commission') and in a decision of 22 September 2017, the Commission set aside the Respondent's decision and ordered that the Appellant's application was one for acceptance. 

[4]	WorkCover terminated the Appellant's entitlement to compensation in a decision dated 30 January 2018. The Appellant applied for a review of this decision and the Respondent set aside the decision and determined that the Appellant had an ongoing entitlement to compensation. 

[5]	WorkCover again terminated the Appellant's entitlement to compensation on 16 May 2018. Following the Appellant's application for review, the Respondent determined on 24 July 2018 to refer the matter back to WorkCover for further investigations. 

[6]	Following further investigations, WorkCover terminated the Appellant's entitlement to weekly payments of compensation and medical expenses effective as at 26 August 2016 and communicated this decision to the Appellant in correspondence dated 6 November 2018. 

[7]	The Appellant sought a review of this decision by the Respondent who varied the decision of WorkCover and determined that the Appellant did not have an entitlement to payments of weekly compensation after 26 August 2016, however, has an entitlement to payment of medical expenses and hospitalisation until 21 February 2018. It is this decision which is the subject of this appeal.

Background

[8]	The following background as submitted by the Respondent provides a summary of matters that are not in dispute:

•	Commencing in October 2008, the Appellant had been employed by the Employer as a casual, then a full time employee and then again as a casual employee in the position of camp cook for various mining/work camps on a fly in fly out ('FIFO') basis;

•	the Appellant's roster was two weeks on, then two weeks off, when work was available;

•	at the time of his left ankle injury, the Appellant was working at Camp 12, about 1.5 hours' drive west of Roma in Queensland; and

•	the Appellant last worked a shift with the Employer on 28 September 2015.

Nature of Appeal

[9]	The appeal to the Commission is conducted by way of a hearing de novo in which the Appellant bears the onus of proof. The questions to be answered in the determination of the appeal are:

(a)	whether the Appellant had an incapacity for work after 26 August 2016 arising from the effects of the injury to his left ankle sustained at work on 25 August 2015; and

(b)	whether the Appellant had an entitlement for medical treatment after 21 February 2018.

Legal framework

[10]	Section 32 of the Act provides for the meaning of injury:
32 	Meaning of injury

(1) 	An injury is personal injury arising out of, or in the course of, employment if—
(a) 	for an injury other than a psychiatric or psychological disorder—the employment is a significant contributing factor to the injury; or
(b) 	for a psychiatric or psychological disorder—the employment is the major significant contributing factor to the injury.

(2) 	However, employment need not be a contributing factor to the injury if section 34(2) or 35(2) applies.

(3) 	Injury includes the following—
(a)	a disease contracted in the course of employment, whether at or away from the place of employment, if the employment is a significant contributing factor to the disease;
(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 other than a psychiatric or psychological disorder;
(ii) 	a disease;
(iii) 	a medical condition other than a psychiatric or psychological disorder, if the condition becomes a personal injury or disease because of the aggravation;
…

(4) 	For subsection (3)(b) and (ba), 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.
…

[11]	Section 144A of the Act provides:

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) Subsection (2) does not apply to the worker’s entitlement to compensation under chapter 4A.

(4) This section does not limit another provision of this Act that stops weekly payments.
	
[12]	Section 144B of the Act provides:

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

(1) 	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. 
…

[13]	Section 190 of the Act provides:

190	No further compensation after fixed time

(1) 	This section applies to a worker who has been given a notice of assessment.

(2) 	The worker is not entitled to further compensation for the injury after the first of the following happens—
(a) 	the worker notifies the insurer of the worker’s decision about the offer within the decision period;
(b) 	20 business days have passed since the worker received the offer.
…

[14]	Section 211 of the Act outlines the extent of liability for medical treatment:

211 	Extent of liability for medical treatment

(1)	The insurer must pay the following costs for medical treatment for an injury, whether provided at 1 time or at different times—
(a) 	for medical treatment by a registered person—the cost that the insurer accepts as reasonable, having regard to the relevant table of costs;
(b) 	for nursing, medicines, medical or surgical supplies, curative apparatus, crutches or other assistive devices given to the worker otherwise than as an in-patient at a hospital—the cost that the insurer accepts as reasonable.
…

[15]	The High Court considered the issue of partial incapacity in Thompson v Armstrong & Royce Pty Ltd (1950) 81 CLR 585 ('Thompson'):

The phrase "where total or partial incapacity for work results from the injury" must refer to physical injury resulting in physical incapacity for actually doing work. 
…

The phrase [incapacity for work] does not merely mean inability to work for the employer in whose service the worker was injured. An injury results in incapacity for work, according to the intention of the Act, when it takes away or diminishes the power of the worker to earn wages in some suitable employment.

[16]	In Thompson, Latham CJ stated at 595:

Incapacity is relevant where it produces an incapacity to earn his living as he did before the injury… in a market for his labour which was reasonably accessible to him.
	
[17]	A similar definition was outlined by the High Court in Arnotts Snack Products Pty Ltd v Yacob (1985) 57 ALR 229 ('Arnotts'):

…the concept of partial incapacity for work is that of reduced physical capacity, by reason of physical disability, for actually doing work in the labour market in which the employee was working or might reasonably be expected to work. 

Medical Evidence

Dr Anthony Grant 

[18]	The Appellant's treating general practitioner, Dr Grant gave oral evidence for the Appellant and his medical certificates, records, and two reports to WorkCover were admitted into evidence. 

[19]	Dr Grant had seen the Appellant on five occasions prior to August 2016. Dr Grant's report states that on the five occasions in 2016, the Appellant was not fit to return to normal duties. He certified the Appellant as fit for light duties as from 1 October 2015, with the exception of one week (30 November 2015 to 4 December 2015) when he was certified unfit for work. 

[20]	Dr Grant assessed the Appellant again on 12 October 2017 and considered that he was fit for modified duties. The suggested modification allowed for increased rest breaks if the Appellant returned to his previous occupation where he spent long shifts standing. The Appellant did not obtain further worker's compensation certificates from Dr Grant in relation to any incapacity after the certificate dated 21 June 2016. 

[21]	Dr Grant opined that Dr Anthony Wilson's indication that the Appellant would have been fit for duties 16 to 20 weeks after the injury was related to restricted duties and not to normal duties. He agreed with Dr Wilson's suggestion that podiatry intervention would assist, as at the time of the report on 30 April 2018. 

[22]	Dr Grant's progress notes indicates that on 31 May 2018, the Appellant had a cortisone injection to his left ankle, with the reason stated as foot pain with walking and prolonged standing. The note also shows the results of the ultrasound which state that there are: 

mild degenerative changes and capsular thickening. There are also further degenerative changes of the 2nd and 3rd tarsometatarsal joints.

Dr Kar Loong Ng

[23]	Dr Ng is an occupational physician who gave oral evidence for the Respondent with the following documents tendered into evidence:

•	two reports dated 24 February 2016 and 18 April 2016;

•	medical report to the Appellant's solicitors dated 10 November 2017;

•	file note of a telephone conference with the Respondent's legal representative on 13 August 2019; and

•	clinical records.

[24]	The Appellant attended Dr Ng on 24 February 2016 and completed a questionnaire describing his activities of daily living. The Appellant stated that he could perform all of the stated activities including walking, standing, driving with "no problems" but with constant pain. 

[25]	Dr Ng's report states that the non-work-related factors "are his body habitus and foot mechanics (flat/pronated feet) which is slowing his recovery".

[26]	Dr Ng's supplementary report of 18 April 2016 describes the Appellant's current symptoms as the following:

Mr Adcock stated that his ankle is better than what it was six months ago. He stated that he has the most pain when he is driving his automatic vehicle whilst resting his left foot and not using it. He experiences intermittent pain on the dorsum and lateral aspects of the foot to the big toe, but not to the medial aspect of the foot and ankle. He stated that he has periods when his ankle is good and pain-free. 

His sleep is not affected. He described his pain as sharp and stabbing in nature with no pins and needles. 

[27]	Dr Ng stated the following with respect to a return to work ('RTW') for the Appellant:

Mr Adcock was also open and transparent, stating that he plans on resigning as he is now at retirement age. Based on this I do not expect that he will be returning to full pre-injury duties. I would clarify that this is not due to compensable, injury or physical factors. 

[28]	In Dr Ng's letter dated 10 November 2017, he stated that he would recommend a referral to a podiatrist to obtain custom orthotics and that he did not consider that the Appellant has any incapacity for work:

I do not consider Mr Adcock to be incapacitated as if he is able to stand and weight bear for up to 8 hours, he would be able to perform his normal duties, despite that he has to work longer shifts at a mine site. 

[29]	Dr Ng confirmed that in his opinion, the Appellant was not incapacitated as at 10 November 2017 based on the Appellant's statement that he could walk up to one kilometre without the onset of pain, although the Appellant denied making this statement in evidence. Dr Ng's opinion was also based upon the Appellant's pain being intermittent rather than constant, and that he could stand and cook at home for up to eight hours, albeit with some pain. His determination that the Appellant had regained full capacity to work was based on how safe he felt it was for the Appellant to work with such pain. 

[30]	Dr Ng agreed that an injury to the lower extremity can likely reduce the ability to exercise and so lead to a greater propensity to put on weight. 

[31]	In cross-examination, Dr Ng agreed that as at 9 November 2017, the Appellant stated that he had ongoing pain. Dr Ng also noted that the Appellant had no requirement for analgesia, his sleep was not affected by pain and he had the most pain in his left ankle when not using that ankle, whilst driving an automatic vehicle. 

[32]	Dr Ng certified on 18 April 2016 the Appellant as being capable of working four hours, five days per week with some restrictions, which were within the range of the RTW plan. 

[33]	Following his examination of the of the Appellant on 9 November 2017, Dr Ng determined the Appellant had improved and was capable of working more than an eight hour shift performing his usual role. He said the only way of negating this assessment of capacity was to have a trial of returning to work. Dr Ng said that the Appellant had pain with or without activity which did not indicate further tissue damage or render it unsafe to work.

[34]	Dr Ng stated the following in evidence:

I did not find the findings of being able to plant the foot flat causing pain, and based on symptoms of pain alone and how it improved from the first time I assessed Mr Adcock and the last time, and based on his reports of his symptoms to function, I'm of the opinion he can perform his normal duties. Well, at least try to. 

[35]	Dr Ng confirmed in the telephone conference with the Respondent dated 13 August 2019, that he had examined the Appellant on two occasions, first on 24 February 2016 and again on 9 November 2017. The file note of the telephone conference states that Dr Ng said that the reason that he was not prepared to state that the Appellant could work at full capacity as of April 2016 was because at the time, he had not examined the results of the ultrasound scan dated 17 March 2016. Dr Ng stated that without any radiological investigations, he tended toward a conservative assessment as to the Appellant's capacity for work. Dr Ng continued that if he had the results of the ultrasound scan in April 2016, which showed arthritis and degeneration and no acute injury, then his finding as to the Appellant's level of capacity at the time would have been greater and potentially full hours if he had the ability to rest when required at the early stages of the RTW plan. 

Dr Anthony Wilson

[36]	Dr Wilson gave oral evidence for the Respondent and provided reports dated 30 November 2017 and 19 January 2018 which were admitted into evidence along with a file note of a telephone conference with the Respondent's legal representatives on 5 August 2019.

[37]	Dr Wilson is an orthopaedic surgeon and works extensively with foot and ankle issues and has substantial experience in foot and ankle treatment. 

[38]	Dr Wilson examined the Appellant on 24 November 2017 and outlined the following conclusions in the report of 30 November 2017:

There is bilateral plano-valgus both feet. There is swelling over the lateral malleolus. There is no wasting with measured circumference of calf 43cm. There is a full range of movement of the ankle subtalar joint and foot. There is normal tendon and neurovascular function. There is positive anterior drawer left side. There is tenderness over the lateral malleolus, lateral gutter of talus, lateral ligament complex. There is no sign of generalised ligamentous laxity. He has normal straight leg raising. 

[39]	Dr Wilson indicated that he expected that the Appellant's injury would have been stable and stationary by 16 to 20 weeks after the original event. His report of 19 January 2018 assessed the Appellant's degree of permanent impairment at 2%. 

[40]	With respect to further medical treatment, Dr Wilson stated the following:

This gentleman is not particularly interested in the possibilities of further investigation with MRI scan with a view to reconstruction because he is coping fairly well with his ankle now. Because of the low grade pain I think it would be reasonable therefore to inject his ankle with steroid, possibly ultrasound guided, through radiology. 

[41]	The question of pursuing an MRI with a view to reconstruction was put to Dr Wilson in cross-examination, who stated:

…I would – you know, I would have just pursued it, but he wasn't getting – he didn't feel he was getting quite enough symptoms to warrant a reconstruction. Insofar as sometimes patients get recurrent instability after such an injury, and it didn't seem to be a big feature of his – his story. And so he didn’t want to pursue that. 

[42]	Dr Wilson indicated that it would be reasonable to inject the Appellant's left ankle with a steroid, which subsequently occurred on 31 May 2018. When questioned as to whether that was a reasonable course of action, Dr Wilson stated: 

Well, yeah. He still had some pain. It can settle down inflammation. And also, sometimes there can be an element of arthritis after a period of time. Where he could have had, you know some minor pre-existing arthritis.

[43]	As outlined in the file note of the telephone conference, Dr Wilson confirmed that the time at which he assessed the Appellant on 30 November 2017, the Appellant's incapacity for work had ceased. Dr Wilson stated that the Appellant was an intelligent man who had worked in a number of capacities over the years and in his opinion, was capable of returning to full time employment at least by 30 November 2017.  

[44]	Dr Wilson stated that at the time of the assessment, the Appellant's left ankle had good function and was stable, with the only issue being intermittent pain at most around 3 out of 10. The Appellant was taking no analgesia and Dr Wilson noted that it would be expected that if he experienced pain at work or otherwise, this could be managed with analgesia and short periods of rest. 

[45]	Dr Wilson stated in the telephone conference that with the type of injury suffered by the Appellant, he would expect in his experience as an orthopaedic surgeon that the Appellant would have been capable of returning to work in the first part of 2016 with the possibility of modifications. 

[46]	Dr Wilson recommended some restrictions to the Appellant's RTW such as no lifting beyond 10 kilograms, no climbing on ladders or manoeuvring in tight spaces and ensuring the floor surfaces were clean, even and non-slip. These restrictions are described as relating to decreasing the risk of a further injury to the Appellant's left ankle. 

[47]	In cross-examination, Dr Wilson stated that he did find instability regarding the Appellant's left ankle. With respect to his suggested restrictions on carrying a heavy object, he stated that a person's view could be impeded, and he could be exposed to an injury more easily.    

[48]	In oral evidence, Dr Wilson confirmed that by the time of his assessment on 24 November 2017, the left ankle was functioning at a level that the Appellant considered did not warrant further treatment or investigation. Dr Wilson considered the Appellant was capable of working as a chef for 84 hours a week, two weeks on and two weeks off as he had previously done. Dr Wilson confirmed that the restrictions he suggested, such as avoiding heavy lifting and uneven ground, were largely concerned with avoiding a recurrent injury and reducing anxiety about sustaining a recurrent injury. 

Dr Dion Suyapto

[49]	Dr Suyapto, an occupational physician, gave oral evidence for the Appellant and his independent medical examination report dated 11 September 2020 and medical report dated 22 October 2020 were tendered into evidence. Dr Suyapto examined the Appellant on 3 September 2020.  

[50]	In his independent medical examination report, Dr Suyapto states the Appellant has an ongoing partial incapacity and could benefit from seeing a podiatrist and an MRI if the Appellant is keen on further invasive treatment such as injections or surgery. Dr Suyapto recommended that the Appellant avoid prolonged standing and walking, lifting greater than 15 to 20 kilograms, repetitive climbing of stairs regularly and be allowed to rest as required. Dr Suyapto further notes that the Appellant took some analgesia early on, however, had since ceased taking the medication. 

[51]	In Dr Suyapto's medical report, he states that it is more likely than not that the Appellant has been partially incapacitated for work from 27 August 2016 and thereafter based on the history provided. The report notes tenderness on palpation laterally with mild laxity on positive draw test. Dr Suyapto states:

He was partially incapacitated based on the history provided that he sustained the injury in 2015 given that he remains symptomatic following the injury and following my assessment that revealed tenderness with slight restriction in the left ankle range of movement in comparison to the right. 

[52]	Dr Suyapto continues:

When I saw him on 3 September 2020 it is my opinion that he remains partially incapacitated for work. 

As of the 21 February 2018 medical treatment no longer required as the injury was unlikely to improve his condition given that the injury persisted since 2015. 

[53]	Dr Suyapto accepted that it was reasonable to assume that there had been some deterioration between 2017 and 2020 following Dr Ng's conclusion that there was a full range of movement in 2017. Dr Suyapto also agreed in evidence that it was not surprising that there had been some deterioration in the Appellant's condition due to the Appellant's morbid obesity, lack of work fitness, deconditioning and his age.

[54]	Dr Suyapto agreed in cross-examination that he would defer to Dr Ng's contemporaneous assessments of capacity in 2016 and 2017.

[55]	The suggestion that the Appellant's weight gain may have contributed to his ongoing problems with his left ankle was discussed at hearing, with Dr Suyapto accepting that the nine kilogram weight gain from Dr Ng's consultation on February 2016 to Dr Suyapto's examination in September 2020 is a reasonable amount of weight gain and could contribute to deconditioning for work and a decrease in physical fitness.  

Evidence of lay witnesses

The Appellant

[56]	The Appellant gave evidence that his injury occurred on 25 August 2015 at work whilst carrying a 25 kilogram box of bacon. The Appellant's injury occurred after he came out of a freezer and fell over a step causing him to hurt his left ankle. 

[57]	The Appellant stated that he is able to undertake a range of domestic activities including walking, however, with consistent pain. 

[58]	The Appellant acknowledged that in the report of Dr Ng of 10 November 2017, he said that he could stand up for eight hours with pain, although he had never tried to do this. He stated that a possible reason that Dr Ng concluded that he would be able to stand for eight hours was that the Appellant had said he used the Weber in cooking for his friends, however he is only standing in front of the Weber for 2.5 hours at a time. 

[59]	In cross-examination, the Appellant was questioned on what pain relief he was prescribed and taking to manage the pain. He indicated that he was attempting to self-manage the pain and took 'panamax' possibly once per year. 

[60]	In re-examination, the Appellant stated that he did have a cortisone injection in his left ankle to relieve the pain but that it did not do much to help. 

[61]	With respect to the RTW plan, the Appellant indicated that he did not attend the RTW plan because his left ankle would not support the three hour shift along with the time spent driving to and from the facility. 

Mr Jason Romano

[62]	Mr Romano was the former head of Human Resources with the Employer in South Australia and gave oral evidence at the hearing for the Respondent. 

[63]	Mr Romano stated that the Employer went into administration and then liquidation in late 2016, following downsizing in around mid-2016, resulting in several redundancies.

[64]	Mr Romano gave evidence that he became aware of the Appellant's work injury and was involved in the RTW process. Mr Romano stated the Employer was capable of allowing the Appellant to complete a RTW plan at any time during the period from the end of November 2015 to the end of June 2016 and there was a possibility of the Appellant continuing to work at the facility after the RTW plan was complete.

[65]	Mr Romano gave evidence that there were a number of communications with the Appellant about starting the RTW plan, and in one of the communications the Appellant said he could not come back to work as his left ankle was 'stuffed'. Mr Romano stated that he advised the Appellant that he needed to go back to his doctor and obtain an appropriate certificate in relation to his work incapacity.  

[66]	A copy of the proposed RTW plan was forwarded to Dr Grant and WorkCover on 14 and 15 October 2015. This RTW plan involved kitchen duties for reduced hours at the Employer's industrial kitchen in Edinburgh Park in Adelaide which prepared and froze packaged meals to send to work camps, from 30 November until 21 December 2015. The RTW plan initially involved working three hours per day for five days a week. 

[67]	Mr Romano described the work at Edinburgh Park as less intensive on the basis that it was not in a remote area and shifts were 7.6 hours.

Return to Work (RTW) plan 

[68]	On 26 November 2015, the RTW co-ordinator, Ms Heather Budd, sent a text to the Appellant advising him that he had been allocated a parking bay and a pass card so that he could access the goods lift, kitchen, bathroom and crib room at Edinburgh Park. 

[69]	On 27 November 2015, the Appellant sent an email to Ms Budd advising as he was attending an Industrial Tribunal on 7 December 2015, he was not attending work the following week. 

[70]	The Appellant gave evidence that he did not participate in the RTW plan as a result of a previous dispute in the workplace about a reduction in work and redundancies, a belief that Mr Romano and the general manager would be looking over his shoulder and the resultant stress and anxiety as well as the left ankle injury. The Appellant stated that he did not know what work he would be doing but it would not be cooking big meals for other people which he was used to. 

[71]	When cross-examined about the RTW plan:

Ms Callaghan: 	There was never any talk about sending you out to a camp at the end of 2015 or early 2016, was there?

Appellant: 		Well, I was employed as a cook, not to push buttons on an industrial machine.

Ms Callaghan: 	So the reality is that just didn't want to work at Edinburgh Park. You thought it was not part of what you wanted to do?

Appellant: 		Well, it wasn't in my job description. 
 
Appellant's Submissions

[72]	The Appellant's relevant submissions are summarised below:

•	it was not put to Dr Grant that the Appellant did not have an incapacity to work;

•	the Respondent suggested that Dr Ng was better placed to comment on the Appellant's incapacity as Dr Suyapto had only seen the Appellant on one occasion, and this argument can be made in favour of Dr Grant who had the benefit of seeing the Appellant regularly for his compensable injury; and

•	it is conceded that the Appellant had put on a considerable amount of weight since the incurring of the injury, which is consistent with his reduced capacity to exercise.

[73]	The Appellant submits that the medical evidence supports the proposition that the Appellant's injury continues to incapacitate him for work, stating:

•	the Appellant disputes that his injury stopped on 26 August 2016 and says his injury continues to incapacitate him for work, at least partially to this day;

•	Dr Wilson stated that the Appellant could return to full time employment at least by 30 November 2017. The 30 November 2017 date is important as that is the date the Respondent's own expert is suggesting the incapacity ends, not 26 August 2016. Remedial legislation gives the benefit to the worker and so 30 November 2017 would be the correct date all else being agreed; and

•	it is not accepted, however, that the incapacity ends on 30 November 2017 as the above restrictions would remain. Those restrictions would still reduce the sale of the Appellant's labour on the open labour market.

[74]	The Appellant notes Dr Wilson's comments regarding future medical expenses, including:

•	that it would be reasonable to inject his left ankle with a steroid, which occurred approximately five months after Dr Wilson's recommendation on 31 May 2018; and

•	Dr Wilson's report dated 19 January 2018 suggesting that the Appellant has a 2% permanent impairment of the left ankle.

[75]	The Appellant submits the following with respect to the Appellant's working situation:

•	The Appellant was working long hours in the mines as a FIFO worker. He was required to work in the kitchen in a role that was labour intensive. It is not conceivable that he could go back to working those same or similar hours and shifts in the same or similar circumstances;

•	Mr Romano advised at the hearing that the company was winding up at around mid-2016 and so the Appellant with his accepted injury, would face the real prospect of having to sell his labour in the open labour market when he recovered (if at all) and it is clear, based on the medical evidence and evidence from the Appellant, that this was reduced, consistent with Arnotts;

•	the Respondent did not challenge the Appellant about the hours he worked, the duties he undertook as a cook, the pain he was in on a regular basis, the actual time he was on his feet when cooking for friends or the additional alcohol use related to the stress associated with the pain in his left ankle;

•	it was never put to the Appellant in cross-examination that his left ankle injury did not continue after 26 August 2016. While the Respondent's defence in the statement of facts and contentions may alert the Commission to their legal argument, the rule in Browne v Dunn requires the cross-examiner to put their case to the Appellant. That was not done in this instance;

•	there remains a clear incapacity with respect to the Appellant on the basis that he was working up to 14 days, was standing for all that time, was also doing heavy lifting, labour intensive work outside of cooking duties and FIFO; and

•	the Appellant was at an age where selling his labour on the open labour market with an ongoing injury and a predominantly labour intensive skill set was and remains diminished. 

Respondent's Submissions

[76]	In addressing considerations which might favour rejection of the appeal, the Respondent made the following submissions:

•	The Appellant did not obtain any further workers' compensation certificates from Dr Grant in relation to an incapacity to perform full or reduced work duties after the certificate on 21 June 2016, which expired on 26 August 2016;

•	no consultation records were tendered or evidence given by Dr Grant about any consultation in relation to the Appellant's left ankle between 23 June 2016 and 24 July 2017;

•	the Appellant noted himself on the independent medical examination questionnaire at the review with Dr Ng on 24 February 2016, that he had no problem with any activity listed such as standing, walking, driving and shopping but had constant pain;

•	the Appellant was not taking any analgesia when he was first assessed by Dr Ng on 24 February 2016;

•	the Appellant agreed that he had not asked Dr Grant for any analgesia;

•	the Appellant told Dr Ng in February 2016 that he planned on resigning as he was at retirement age and would possibly work a few hours a week; 

•	the Appellant has provided no contemporaneous medical certification or assessment that he had ongoing incapacity to work after 26 August 2016;

•	the Appellant chose not to participate in a RTW program (drafted in conjunction with the Appellant's treating general practitioner) or to attempt to work in any employment duties after 28 September 2015, although he was certified by his general practitioner to do so from 26 October 2015 until 26 August 2016;

•	the Appellant was repeatedly offered modified duties which had been approved by his general practitioner, between October 2015 and March 2016; and

•	the Appellant's true position is that he chose not to return to any employment duties rather than was incapacitated for such duties as at 26 August 2016 or prior to that date.

[77]	The Respondent made the following submissions with respect to the medical evidence:

•	The Appellant did not provide any consistent and persuasive medical evidence that he had a partial or total incapacity to work as at or in the months after 26 August 2016 as a result of his work related injuries;

•	from 1 October 2015, the Appellant was certified as fit for suitable duties (apart from one week from 30 November 2015 during which he was certified as totally unfit);

•	from late November 2015 to June 2016, the Appellant had available to him a modified duties plan which had been developed with input from his treating doctor;

•	from 26 August 2016, the Appellant did not undertake any further assessment, seek treatment for or obtain medical certification about his capacity to work;

•	Dr Ng, appointed by the workers compensation scheme, assessed the Appellant as fit for part time work as at April 2016, but had he seen the ultrasound report of the left ankle he would have assessed his capacity as greater, with the potential for full hours if he had the provision to sit and rest during the early stages of return;

•	the evidence of Dr Ng and Dr Wilson in relation to their assessments in November 2017 are of less assistance to the Commission and carry less weight, as they took place over a year after the relevant time. However, they support the proposition that the Appellant had capacity to work in employment reasonably accessible to him immediately on or around 26 August 2016;

•	neither Dr Grant nor Dr Suyapto assessed the Appellant at the relevant time. Dr Grant did not make any formal assessment of capacity after June 2016 and Dr Suyapto, having assessed the Appellant more than four years after the relevant time, appropriately deferred to the contemporaneous assessment by Dr Ng; and

•	the ultimate question is a matter for the Commission to determine. However, the issue of whether a particular injury causes an incapacity for work necessarily relies upon a timely, if not contemporaneous, assessment of the injury by a person with the requisite medical qualifications to assess the nature, extent and recovery of the injury and also an understanding of the physical requirements of employment in which the worker may reasonably be expected to work.

[78]	With respect to the Appellant's non-participation in the RTW program, the Respondent submits that the Appellant never spoke to either his Employer or Dr Grant to the effect that he was unable to perform all or any of the duties set out in the RTW plan. The Appellant repeatedly stated that he did not recall whether they had any conversations with Ms Budd or Dr Grant about not being able to perform the duties expected on the RTW program. In the Respondent's submission, it was submitted that the Appellant was evasive in these responses.

[79]	The Respondent submitted that the Appellant never participated or engaged in the RTW process despite:

•	telephone calls from the Employer on 21 and 25 January; 1, 3, and 5 February 2016 and then 3 March 2016 offering light duties and seeking medical certification if the Appellant was unable to perform any duties; and

•	no contact by him with the Employer after 3 March 2016 and no medical certification provided to the Employer about his alleged partial or total incapacity to work. 

Appellant's submissions in reply

[80]	The Appellant provided the following submissions in reply, in summary:

•	the Respondent incorrectly submits that the appeal concerns entitlement to weekly benefits pursuant to s 144A, however the appeal is also concerned with entitlement to medical expenses pursuant to s 144B of the Act; 

•	the RTW plan was not made in accordance with the Act with Ms Budd located in South Australia and not Queensland;

•	the Appellant made clear that he was willing to adhere to any RTW program correctly implemented, but this never occurred; 

•	penalties apply in relation to failures to comply with the employer's obligation to appoint a RTW co-ordinator in accordance with s 226 of the Act; 

•	Dr Wilson stated that the Appellant could have, as at 30 November 2017, performed modified duties as a chef;

•	the recommendation of modified duties is consistent with the finding of an incapacity; 

•	at the date of the hearing, Dr Wilson accepted that there was an ongoing partial incapacity, though he did accept in a file note dated 7 August 2019 that he had stated that the Appellant's incapacity ceased on 30 November 2017; 

•	although Dr Wilson changed his opinion on the date the Appellant's incapacity ceased to 30 November 2017, the Respondent's case is still that the Appellant's entitlement to weekly payments ended in August 2016 and not 30 November 2017;

•	in response to the Respondent's submission that the Appellant was evasive in his responses, the Appellant refers to the 2017 decision in Adcock v Workers' Compensation Regulator [2017] QIRC 086 at [36], in which Commissioner Thompson made a positive assessment of the Appellant;

•	the Respondent submits that:

Dr Ng confirmed his opinion that as at the consultation on 17 November 2017, the history, examination, report from a Dr Grant and ultrasound results indicated that the appellant was ready to participate in return to work and at the end of it, achieve his normal duties. 

•	the Respondent's submissions suggest that the Commission should estimate a date (after November 2017, and after a RTW program would have been initiated) when the Appellant would be able to perform normal duties. The Respondent's submissions do not argue that the Appellant's injuries stopped prior to 30 November 2017 and only go so far as to say that the accepted injury stopped, at the earliest, on 30 November 2017;

•	the submission that the Appellant was evasive was not put to the Appellant by the Respondent at any point during the hearing;

•	with respect to the effect of the Appellant's weight gain, the Commissioner may take judicial notice as to the consequences for one's weight when a person suffers from an incapacity that restricts his or her movement; and

•	the medical evidence establishes a need for medical treatment for the Appellant after 21 February 2018, which included, but was not limited to, the operation of the cortisone injections on 31 May 2018 and 4 June 2018, respectively, as well as the recommendations for podiatry intervention.

Consideration 

[81]	The decision to be made is whether the Appellant had an ongoing incapacity for work at the time compensation ceased on 26 August 2016 and had an entitlement to medical treatment beyond 21 February 2018. The Appellant bears the onus of proof that his incapacity because of the work related injury had not ceased at 26 August 2016 and compensation for medical treatment continued beyond 21 February 2018.

[82]	Whether the incapacity had resolved on or before weekly payments and benefits were ceased is a question to be determined primarily on the medical evidence. The onus rests with the Appellant to show that after 26 August 2016, in accordance with the principles in Thompson, the Appellant had a disability preventing him from doing work in the labour market open to a cook or in any other labour market which, based on the Appellant's employment history, he may have reasonably expected to work. 

[83]	The decision of the Industrial Court of Queensland in Colbran v Workers' Compensation Board of Queensland ('Colbran'),confirmed that the phrase 'incapacity for work' does not mean an inability to work for the employer in whose service the worker was injured. An injury results in incapacity for work when it takes away or diminishes the power of the worker to earn wages in some suitable employment. In this matter, the Appellant is not considered to have an ongoing incapacity simply because he may have been unable to return to his work as a FIFO cook in a mine camp. An incapacity can only be determined if the Appellant's power to work in any suitable employment is diminished or taken away. 

[84]	The Appellant submits that the Respondent did not put their case to the Appellant in cross-examination as required by the rule in Browne v Dunn. The Respondent's Counsel put to the Appellant the contention that he did not attend the RTW plan because of reasons other than an inability to perform the duties:

Ms Callaghan: 	I'm asking you – I'm asking you or I'm putting to you that when you received this document, you didn't contact Heather Budd and say, "I cannot do this," for some reason, did you?
	
Appellant:		I don’t recall. 

Ms Callaghan: 	You did[n't] go back to Dr Grant and say, "Look at this return to work program. I can't do that. I need another certificate from you," did you?

Appellant:		Again, I don't recall. 
…

Ms Callaghan:	So it wasn’t because you were unable to perform the duties in the return to work program. It was simply because you had ongoing matters in the industrial tribunal in South Australia. That was the reason you didn’t want to return to work, isn't it?
		
Appellant: 		No. 

[85]	The Respondent made their case clear in the statement of facts and contentions filed and I am satisfied that the proposition that the Appellant did not have an incapacity preventing him from returning to work was put to him, albeit quite broadly.

[86]	Both parties made reference to the Appellant's non-participation in the RTW plan. The Appellant contends that the Respondent has waived its right to rely upon a breach of mutuality by the Appellant's non-attendance during the RTW plan, with this matter not previously raised . The general issues regarding the RTW plan with respect to compliance with the formal requirements are largely irrelevant to this matter, however, I do consider that any medical reasons given as to why the Appellant could not participate in the program as relevant. On the basis that my decision relies upon the evidence relating to capacity and not the RTW program participation, I will consider the RTW submissions for this purpose only. 

[87]	The evidence indicates that the Appellant's inability to participate in the RTW plan was not a consequence entirely of his injury. It appears that the only indication from the Appellant at the time as to why he was not participating came from a text message from the Appellant to Ms Budd stating that he would not be attending the first RTW shift as he was to attend an Industrial Tribunal matter. I note that the Appellant did not mention incapacity as the reason for his non-participation in the RTW plan, however in evidence the Appellant stated that he did not participate as his ankle 'was stuffed'. I am not persuaded by the Respondent's submission that the Appellant was being evasive in his testimony and accept that his failure to return to work was likely a combination of both the industrial matter and his injury. 

[88]	Dr Grant's evidence was that the Appellant was not fit for normal duties during 2016, with suitable duties necessary to include 'increased rest breaks'. Dr Grant does not refer to restrictions to the type of duties and hours of work. In my view, the requirement of suitable duties involving increased rest breaks does not meet the standard of diminishing the worker's power to earn wages in some suitable employment. 

[89]	The Appellant attended on Dr Ng on 24 February 2016 and on the basis of this examination and the Appellant's answers to a questionnaire determined that the Appellant was capable of working four hours, five days per week with some restrictions. In Dr Ng's report of 10 November 2017, he indicated that the Appellant had no incapacity for work. Dr Ng also noted that he would have concluded that no incapacity existed on 24 February 2016 had he examined the ultrasound at that time. Whilst Dr Ng's evidence is that he would have considered there to be no incapacity on 24 February 2016 had he seen the ultrasound, I am reluctant to rely upon this evidence given that this caveat was not stated in the 2016 report. I also consider that fitness to work only four hours per day is indicative of an incapacity in these circumstances as at 24 February 2016. 

[90]	Dr Suyapto's evidence is that the Appellant was partially incapacitated based on the history provided by the Appellant and was still incapacitated as at 11 September 2020 based on his assessment that revealed tenderness with slight restriction in the left ankle range of movement in comparison to the right. I am not persuaded that 'tenderness' and a 'slight restriction in range of movement' should necessarily be considered an incapacity. I note that Dr Suyapto was not provided with the clinical records of Dr Ng or Dr Grant and accept his evidence that he would defer to Dr Ng's assessments in 2016 and 2017 as they occurred closer to the date of injury. 

[91]	In consideration of the medical evidence, I afford greater weight to the opinion of Dr Wilson due to his specialist training and experience as an orthopaedic surgeon particularly focussed on foot and ankle treatment. Dr Wilson indicated that he would have expected the incapacity to have ceased 16 to 20 weeks after the injury occurred. However, this was not as a result of an assessment of the Appellant at the time, and as such I place greater weight on Dr Wilson's more conclusive opinion that by the 30 November 2017, the incapacity had ceased. 

[92]	Dr Wilson gave the following evidence:

Mr Wright: 		I guess, the question to you is – on the 24th of November of 2017 when you			assessed him, was there a partial incapacity to work those type of hours? 

Dr Wilson:		Look, I didn't really think so. No. I think – I think that his function was good enough that he could have done those hours, but I felt that maybe some restrictions may be required, especially, you know, he wouldn’t be too keen to sustain the same injury. 

[93]	Dr Wilson's opinion that the incapacity had ceased by 30 November 2017 is broadly consistent with the opinion of Dr Ng, who stated that as of 10 November 2017, the incapacity for work had ceased.  Dr Grant also considered that by 12 October 2017, the Appellant was fit for modified duties with the only modification recommended being increased rest breaks if he returned to his previous role. Fitness for 'modified duties' in these circumstances does not mean that the Appellant has an ongoing incapacity. Allowing for modifications in the form of occasional rests, the use of orthotics and lifting restrictions to prevent further injury would not normally render a worker incapacitated as these modifications can occur within a range of usual job requirements. Similar restrictions recommended by Dr Wilson were largely concerned with preventing the likelihood of a recurrent injury. 

[94]	Dr Ng and Dr Grant confirmed that the Appellant was not using analgesia for pain relief, with the Appellant stating that the only pain relief sought was panamax possibly once per year. Given the Appellant's assertion that he could only perform basic domestic tasks with constant pain, one might expect that some form of pain relief would be sought if this were the case. 

[95]	I note the Appellant's failure to provide further ongoing medical certificates after 26 August 2016, however, this alone does not confirm that the incapacity had ceased at this date.

[96]	I accept the Appellant's submission that the facts in Colbran can be distinguished from this matter, however, the general principle that incapacity for work is not necessarily established by a requirement for how suitable duties can be applied. In Colbran, President de Jersey considered that although an Appellant was unable to return to his previous employment, any number of other avenues of employment would be open and suitable with the minor modification required in that matter. The test for whether the Appellant is incapacitated is if the injury diminishes the power of the worker to earn wages in some suitable employment, which in this matter does not have to be employment as a cook in mine camp sites. I note the opinion of Dr Wilson who stated that the Appellant was an intelligent man who had worked in a number of capacities over the years and was capable of returning to full time employment at least by 30 November 2017.

[97]	The Appellant's submission that the Respondent's decision to terminate payments after 26 August 2016 is inconsistent with the continued payment of medical expenses in relation to that injury is incorrect. It is possible that the incapacity has ceased at a particular date and the Appellant's injury could still improve with further medical treatment, such as cortisone injections. Similarly, I do not accept that a degree of permanent impairment assessed at 2% is inconsistent with a determination that an incapacity has ceased. It is entirely possible that a worker can earn wages in suitable employment having sustained a 2% permanent impairment, with the relevant question being whether the consequences of that impairment result in an incapacity. 

[98]	After considering all of the medical evidence, I am not persuaded that there is sufficient evidence that the Appellant was no longer incapacitated for work after 26 August 2016 as a result of his injury. The weight of medical evidence suggests that the incapacity ceased in November 2017. I accept Dr Wilson's opinion that the incapacity had ceased by 30 November 2017. 

[99]	As outlined above, s 144B of the Act provides that a worker's entitlement to payment of medical treatment, hospitalisation and other expenses stops when the worker's entitlement to weekly payments stops, and the injury is not likely to improve with further medical treatment or hospitalisation so that medical treatment is no longer required to manage the injury. 

[100]	Dr Ng's report dated 18 April 2016 recommended that the Appellant undergo an ultrasound of his left foot and be referred to a podiatrist to obtain custom orthotics. Dr Ng's second report of 10 November 2017 also recommended that the Appellant be referred to a podiatrist for custom orthotics. 

[101]	In Dr Wilson's report dated 30 November 2017, he stated that it would be reasonable to inject the Appellant's left ankle with steroid, possibly ultrasound guided, through radiology. 

[102]	Dr Grant's report of 30 April 2018 supported the treatment recommendations of podiatry intervention and a referral for a cortisone injection on 31 May 2018. I note that the Appellant did received a further cortisone injection in his left ankle, however, he indicated in evidence that it did not improve his symptoms.

[103]	Dr Suyapto's opinion was that as of the 21 February 2018, medical treatment was no longer required as the injury was unlikely to improve given that the injury had persisted since 2015. 

[104]	The medical evidence supports the view that the Appellant required further treatment for the management of his work-related injury after 26 August 2016. The provision of further treatment is likely to fall within the description of medical treatment outlined in s 211, however the payment for such medical treatment is considered compensation within the meaning of s 9 of the Act. 

[105]	WorkCover provided the Appellant with a Notice of Assessment and offer based on a 2% degree of permanent impairment on 23 January 2018. In Jewsbury v Workers' Compensation Regulator, Deputy President Merrell considered the application of s 190(2) and determined that a worker would not be entitled to receive payment for further medical treatment in similar circumstances because such payment would amount to 'further compensation' within the meaning of s 190(2) of the Act. 

[106]	The effect of s 190(2) is that the Appellant ceased to be entitled to compensation for his injury 20 business days after he received the notice of assessment and offer. The Appellant states in the appeal notice that the date of receipt of the notice of assessment was 30 January 2018. This date was not challenged by the Respondent. A calculation of 20 business days following receipt of the offer results in the entitlement ceasing on 27 February 2018 in accordance with s 190(2)(b) of the Act. The entitlement to further compensation for medical treatment therefore ceased on 27 February 2018. 

Conclusion

[107]	In consideration of all the evidence in the proceedings, there is insufficient evidence to support the conclusion that the incapacity had resolved and that the Appellant was no longer incapacitated at 26 August 2016. In these circumstances I find, pursuant to s 144A of the Act, that the incapacity had not conclusively ceased until 30 November 2017.

[108]	In terms of the Appellant's entitlement to ongoing medical benefits, I accept that the evidence supports a decision that, pursuant to s 144B of the Act, the Appellant had a continuing entitlement to the payment for medical treatment until 27 February 2018.  

Order

[109]	I make the following orders:

1.	That the decision of the Workers' Compensation Regulator be set aside.

2.	That pursuant to s 144A of the Workers' Compensation and Rehabilitation Act 2003 (Qld), the Appellant's incapacity is determined to have ceased as at 30 November 2017.

3.	That pursuant to s 144B of the Workers' Compensation and Rehabilitation Act 2003 (Qld), the Appellant's requirement for medical treatment continued until 27 February 2018, being 20 business days following receipt of the notice of assessment and offer pursuant to s 190.

4.	That the Respondent pay the costs of and incidental to the appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission.