Brendon May v Q-COMP

Date of decision: 12 February 2010, IM Cormack

Mr Fitzsimons of Counsel, instructed by LHD Lawyers for the appellant

Mr McLeod of Counsel, directly instructed by Q-COMP

Key words – Excavator Driver – 25 – Injury Type: lower back – Appeal Outcome: appeal allowed – Significant sections considered:

s144A – entitlement to weekly payments of compensation stops when the incapacity because of the work related injury stops

s144B – entitlement to payment of medical treatment, hospitalisation and expenses stops when the entitlement to weekly compensation stops and medical treatment is no longer required for management of the injury because the injury is not likely to improve with further medical treatment or hospitalisation

Head Note

The appellant was employed as an Excavator Driver with an excavation hire business. On 27 November 2008, the appellant sustained a lower back injury when he became stuck in mud at a building site and attempted to wrench his work boot and foot out of the mud.

The appellant lodged an application for compensation on 4 December 2008 with WorkCover Queensland. WorkCover accepted the application and paid compensation until 10 February 2009, on which date WorkCover provided written notice of the decision to terminate the appellant’s entitlement to compensation. On 5 May 2009, the appellant lodged an application for review with Q-COMP. On 17 June 2009, Q-COMP issued written notice of the decision to confirm WorkCover’s decision. The appellant subsequently appealed to the Industrial Magistrate’s Court.

On appeal, the Industrial Magistrate considered evidence from two orthopaedic surgeons. The first specialist indicated that the appellant had a disc prolapse and severe degenerative disease of the lumbar spine, and concluded that in February 2009, the appellant’s work-related aggravation had ceased and ongoing symptoms were due to the underlying condition. The second specialist examined the appellant in March 2009, and was of the opinion that the lumbar spine disc protrusion was the result of a specific injury, where the injury event was significant. The second specialist assessed that the appellant was totally incapacitated for work and further medical treatment may improve the injury. The appellant’s general practitioner provided medical certification indicating that as at 20 February 2009, there were some restrictions in the appellant’s ability to perform work-related tasks.

The Industrial Magistrate concluded that as at 10 February 2009, the appellant was unable to perform particular physical tasks and was in constant pain which became intense and debilitating after he engaged in normal physical activities. The Industrial Magistrate found that the appellant experienced a very slow and gradual improvement of his condition and at the relevant time was not fit for work at all. Therefore, based on the assessments of the second specialist and general practitioner and the appellant’s evidence, the Industrial Magistrate concluded that the appellant had not recovered from the work-related aggravation to his underlying condition and remained incapacitated for work so that he was entitled to ongoing weekly compensation and the payment of medical treatment, hospitalisation and expenses. The appeal was allowed.

This decision has been appealed to the Queensland Industrial Court