July 10, 2017

Employer Liability & Workers Compensation | QLD

In Mahoney v the Workers' Compensation Regulator [2017] QIRC 066, Industrial Commissioner Fisher of Queensland’s Industrial Relation Commission had to consider whether a C6/7 injury was a significant contributing factor to a C5/6 injury and  whether employment itself was a significant contributing factor to any injury (or aggravation of injury).

The Worker had an accepted workers' compensation claim for a left C6/7 injury in 2014. He underwent an anterior cervical discectomy and fusion to treat the injury on 30 January 2014. Within a short period, Mr Mahoney began to experience symptoms on his right side. He subsequently underwent fusion surgery to the C5/6 level on 30 January 2015.

The Worker contended that the C5/6 injury was secondary to, and as a result of the surgical treatment of the injury at C6/7 level, and was an “injury” within the meaning of s 32 of the Workers' Compensation and Rehabilitation Act 2003 (the Act). The Worker argued, the C5/6 injury was either a discrete injury or an aggravation of a pre-existing injury.

The Worker contended that if the surgical treatment of the C6/7 injury was a significant contributing factor to the C5/6 injury then it follows that employment itself was a significant contributing factor.

The Regulator argued that there was no evidence of any C6 radiculopathy nor any injury to C5/6 but if there was, it was degenerative in nature and there was no aggravation (nor new injury) caused by the operation at C6/7. Further, the Regulator argued, employment, which included the medical treatment for the C6/7 injury, was not a significant contributing factor.

Dr Shaw gave evidence that because of the temporal relationship between the fusion surgery and the onset of the pain the surgery made a partial but significant contribution to the right C6 radiculopathy. He could not discount the possibility it was a complete coincidence but he thought that was unlikely.

Associate Professor Williams gave evidence that the accepted injury at C5/6 was not employment related but was caused by the pre-existing degenerative spine becoming symptomatic. He did not find any evidence to explain the alleged radicular symptoms and any symptoms that were experienced were related to the naturally occurring degeneration and the normal progression of the degeneration. He could identify no evidence [other than the timing of the arising of symptoms with other cervical spine surgery] to show that the operation at C6/7 contributed to any pathology or symptoms at, or from, the C5/6 level.

The Commission preferred the evidence of Associate Professor Williams and found this:

“[54] Associate Professor Williams has the superior qualifications and experience of the two orthopaedic surgeons. He was particularly advantaged by the timing of his examinations of Mr Mahoney and his examination of the scans and radiological reports. The basis for Dr Shaw's opinion was undermined by the concessions he reasonably made in cross-examination. For these reasons particularly, as well as the others set out above, I am persuaded by his reasoning and evidence, to accept the opinion of Associate Professor Williams in relation to whether the C5/6 injury was secondary to and as a result of the surgery performed at the C6/7 level.”

A link to the decision is here