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Smith v Workers' Compensation Regulator[2024] QIRC 223

Smith v Workers' Compensation Regulator[2024] QIRC 223

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Smith v Workers' Compensation Regulator [2024] QIRC 223

PARTIES:

Smith, Bradley Scott

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2022/191

PROCEEDING:

Appeal against decision of Workers' Compensation Regulator

DELIVERED ON:

10 September 2024

HEARING DATES:

6 and 7 November 2023

MEMBER:

O'Connor VP

HEARD AT:

Townsville

ORDER:

  1. Pursuant to s 558(1)(c) of the Workers' Compensation and Rehabilitation Act 2003:
  1. the review decision of the Respondent is set aside; and
  1. another decision is substituted, namely, that the Appellant suffered an injury within the meaning of s 32 of the Workers' Compensation and Rehabilitation Act 2003.
  1. Pursuant to r 41(1) of the Industrial Relations (Tribunals) Rules 2011:
  1. the parties are to exchange and file written submissions on the costs of the hearing (of no more than two (2) pages, 12-point font size, line and a‑half spacing with numbered paragraphs and pages) by 4.00 pm on Friday 4 October 2024; and
  1. unless otherwise ordered, the decision on costs be determined on the papers.

CATCHWORDS:

WORKERS' COMPENSATION – ENTITLEMENT TO COMPENSATION – APPEAL AGAINST REVIEW DECISION – where appellant employed as maintenance planner at Mount Isa Mines – where appellant suffered injury to his right elbow, wrists and both knees as he was exiting the bus – where bus door could not open when it arrived at the bus stop – where appellant used emergency override and showed the bus driver how to use the manual override to open the door – where electrically operated step did not automatically deploy when the bus door opened as was its usual operation – where height of the top step of the bus to the ground was approximately 50 cm – where appellant fell to the ground impacting both knees, both wrists and right elbow – where appellant fractured right elbow – where compensation approved for right elbow, wrist and left knee – whether appellant suffered an injury to right knee as a result of the incident within the meaning of s 32 of the Workers' Compensation and Rehabilitation Act 2003 – whether there was an aggravation of pre-existing degenerative change to the patellofemoral joint – whether injury arose out of or in the course of his employment – whether employment was a significant contributing factor to the injury

LEGISLATION:

Workers' Compensation and Rehabilitation Act 2003, s 32, s 558

Industrial Relations (Tribunals) Rules 2011, r 41

CASES:

Adelaide Stevedoring Company Ltd v Forst (1940) 64 CLR 538

Austen v Tran [2022] ACTSC 114

Chattin v WorkCover Queensland (1999) 161 QGIG 531

Commonwealth of Australia v Lyon (1979) 24 ALR 300

Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320

Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473

Holtman v Sampson [1985] 2 Qd R 472

Luxton v Q‑Comp (2008) 190 QGIG 4

Mason v Demasi [2009] NSWCA 227

Nguyen v Cosmopolitan Homes [2008] NSWCA 246

Obstoj v Van de Loos (Unreported, Supreme Court of Queensland, Connolly J, 13 April 1987)

Poulsen v Q-COMP [2012] ICQ 6

Qantas Airways Ltd v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 082

Q-Comp v Green (2008) 189 QGIG 747

Ramsay v Watson (1961) 108 CLR 642

Taylor v Workers' Compensation Regulator [2017] QIRC 6

Theiss Pty Ltd v Q-COMP [2010] ICQ 27

APPEARANCES:

Mr J.A. Greggery, KC instructed by Organic Legal for the Appellant.

Mr C.J. Clark, Counsel directly instructed by the Workers' Compensation Regulator for the Respondent.

Reasons for Decision

Introduction

  1. [1]
    On 19 October 2022 the Workers' Compensation Regulator ('the Respondent') upheld the original decision of XtraCare to reject the application for compensation by Mr Bradley Smith ('the Appellant') under s 32 of the Workers' Compensation and Rehabilitation Act 2003 ('the WCR Act') in respect of an injury to his right knee as a result of a workplace incident whilst working for Glencore at Mount Isa Mines on 2 August 2021.  At that time XtraCare managed workers' compensation services for Glencore which has since been taken over by workers' compensation management services on behalf of Glencore.[1]
  1. [2]
    On 17 November 2022 the Appellant appealed the decision of the Respondent to the Queensland Industrial Relations Commission ('the Commission').

Legislation

  1. [3]
    Section 32 of the WCR Act provides:

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.
  1. However, employment need not be a contributing factor to the injury if section 34(2) or 35(2) applies.
  1. Injury includes the following -
  1. 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;
  1. 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 -
  1. a personal injury;
  1. a disease;
  1. a medical condition, if the condition becomes a personal injury or disease because of the aggravation;
  1. loss of hearing resulting in industrial deafness if the employment is a significant contributing factor to causing the loss of hearing;
  1. death from injury arising out of, or in the course of, employment if the employment is a significant contributing factor to causing the injury;
  1. death from a disease mentioned in paragraph (a), if the employment is a significant contributing factor to the disease;
  1. death from an aggravation mentioned in paragraph (b), if the employment is a significant contributing factor to the aggravation.
  1. For subsection (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.
  1. Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances -
  1. reasonable management action taken in a reasonable way by the employer in connection with the worker's employment;
  1. the worker's expectation or perception of reasonable management action being taken against the worker;
  1. action by the Regulator or an insurer in connection with the worker's application for compensation.

The Incident

  1. [4]
    On 2 August 2021 the Appellant was working for Glencore ('the Employer') as a maintenance planner at Mount Isa Mines.  The Appellant is said to have suffered his personal injuries in the following circumstances:

As the Appellant was exiting the bus from R62 to X41 (bus stop and deployment area) he suffered an injury to his right elbow, wrists and both knees.  The driver of the bus was unable to open the door when the bus arrived at the bus stop.  It was an air operated bus door and had a faulty alternator which was not charging the battery and this was why the door didn't open.  The height of the top step of the bus to the ground was approximately 50 cm.  The Appellant was about halfway through his step off the bus when he realised there was no step there.[2]

  1. [5]
    The Appellant fell to the ground fracturing his right elbow.[3]  On 12 August 2021 XtraCare accepted, in accordance with s 32 of the WCR Act, an application for: "right elbow injury - contusion".[4]  On 30 September 2021 XtraCare accepted an additional injury: "right radial head fracture.[5]  On 13 October 2021 XtraCare amended the injury liability to: "right radial head fracture and left patellar contusion".[6]
  1. [6]
    On 16 March 2022 XtraCare rejected the Appellant's application for a right knee injury pursuant to s 32 of the WCR Act.

Contentions

  1. [7]
    It is contended by the Appellant that:
  1. an injury to his right knee was suffered on 2 August 2021 as a consequence of his fall from the bus and landing on his hands, wrists and both knees;
  1. the injury has been diagnosed as follows:
  1. "a definitive non-displaced tear of the posterior aspect of the medial meniscus" by Dr Brosnan on 17 December 2021;
  1. "bilateral blunt injury to the knees with possible chondral injury to the patellofemoral joints on background of early degenerative change" by Dr Wilkinson on 21 July 2022; and at the very least
  1. "an aggravation of a pre-existing condition" by Dr Schuter [sic] in his report dated 9 February 2022.
  1. the injury arose out of his employment; and
  1. employment was the significant contributing factor to the injury.[7]
  1. [8]
    The Appellant seeks that the Respondent's decision of 20 October 2022 be set aside and the Commission substitute another decision that the claim be accepted in that he did sustain an injury (right knee linear tear and small parameniscal cyst.  Oblique undisplaced tear at the periphery of the posterior horn in the medial meniscus.  Small knee effusion on the background of degenerative change) pursuant to s 32 of the WCR Act.[8]
  1. [9]
    The Respondent accepts that the Appellant is a worker for the purposes of s 11 of the WCR Act and further accepts that he has a 'personal injury' to the right knee described in the MRI scan of 17 November 2021 as:

"moderate patellofemoral and mild medial compartment chondromalacia.  Extensive degenerative signal through the medial meniscus.  Anterior horn attachment showing subtle linear tear and small parameniscal cyst.  Oblique undisplaced tear at the periphery of the posterior horn medial meniscus also seen.  Small knee effusion."[9]

  1. [10]
    The Respondent further contends that the Appellant has been inconsistent in reporting the mechanism of the injury to his insurer or to his medical practitioners, noting:

contemporaneous to the fall, the Appellant reports landing on his left hand and right elbow/arm only;

on 20 September 2021 the Appellant reports to the insurer he fell to the ground on both knees, both wrists and on the right elbow.  Further, he did not recall which part of his body hit the ground first; and

on 17 December 2021 the Appellant informed Dr Brosnan he "actually remembers" landing on his right leg which hit the ground hard "jarring and twisting".[10]

  1. [11]
    On the contentions advanced by the Respondent, it is asserted that the following medical evidence does not support a finding of the claimed right knee injury arising out of the incident on 2 August 2021:
  1. the evidence of Dr Brosnan is that the meniscal tear is "possibly" related to the fall and the mechanism described by the Appellant of landing hard on the right leg "could have" caused the meniscal tear;
  1. the evidence of Dr Shooter is the Appellant's current symptoms represent natural history of pre-existing degeneration; and
  1. the evidence of Dr Wilkinson is that the Appellant sustained only a "blunt injury" to the knees with "possible patellofemoral joints on the background of early degenerative change".[11]
  1. [12]
    The Appellant has not, it is contended, sustained an injury in accordance with the provisions of the WCR Act because he has failed to discharge the onus of establishing that his personal injury arose out of, or in the course of, employment with Glencore and/or his employment was not a significant contributing factor to the personal injury.[12]

Evidence

  1. [13]
    In his evidence-in-chief, the Appellant recalled the incident on the afternoon of 2 August 2021:

… The afternoon I got on the bus at [indistinct]

Yes?---The driver had a problem shutting the door and making the bus go.

Right?---He eventually got it moving.  We got to X41 where he could not open the door at all and someone else was pushing on the door.  Then he got up and tried pushing on the door as well [indistinct] whole thing.  There's an emergency overwrite to open - release the door.

Yes?---He knew nothing about it.

That's the bus driver?---The bus driver.

Right?---So I proceeded to show him how it worked.  Then I think there was a person in front of me that got down.  The bus [indistinct] I don't know.  Then I remember just walking out, seeing no step and falling to the ground.[13]

  1. [14]
    The Appellant went on to say:

Now, the step that you said wasn't there, is that the bottom-most step below the - where the door opens?---Yes.

And can you describe what should have happened in respect of that step?---That step is supposed to be released and come out.

When the door opens?---When the door opens.

Yes?---And retract back in when the door shuts.

Okay.  We can see a yellow tag on an open compartment on the side?---Yes.

Do you recognise that from - - -?--- [indistinct] an out of service tag.

And out of service tag.  And in terms of your involvement with this incident and your involvement in light maintenance planning, can you - did you later come to understand the cause of what had happened?---Yes.  The alternator was faulty on the bus causing the electrics not to work.[14]

  1. [15]
    The Appellant further said "I remember exiting with my right foot … was going to go onto the step but the step wasn't there.  I just remember it was going to hurt and that was it" and he recollected "being face down on the ground with my hard hat flying off, my safety glasses flying off and just lying on the ground".[15]
  1. [16]
    The surface on which the Appellant fell was concrete and the distance between the step inside the bus from which the Appellant stepped to the concrete was approximately 50‑60 centimetres.[16]
  1. [17]
    The Appellant said he was in pain and could only move his elbow a little bit.  He did not complete the Statement of Incident which was "scribed by Teneil Bruton, RN/paramedic" a nurse at the medical centre.  After he attended and spoke to the nurse the Appellant went straight to Dr Tan, GP who gave him a referral for an x-ray of his arm.[17]
  1. [18]
    In respect of other injuries as a result of the incident, the Appellant said "I … the doctor on the first three occasions that my knees were sore and he said that we'll see how they go, they should settle down".[18]
  1. [19]
    The Appellant signed the Application for Compensation Form on 2 August 2021, which was scribed by Mr Ryan Maher, Health Advisor.  In response to Question 24 - Explain what you were doing at the time and how the injury happened, Mr Maher wrote:

Bus number PB003, I was standing inside the door.  Failed to open so the bus driver used the manual override.  The door has then opened but the step on the outside has not come out.  I stepped out expecting the step to be there, stumbled and fallen forward onto my left hand and then right elbow causing pain.[19]

  1. [20]
    As part of the investigation into the incident, the Appellant was interviewed by his employer, Glencore on 10 August 2021 at which time the Incident Investigation Statement Form was completed, and the Appellant said:

"… I exited the bus (The Step Did Not Deploy) I fell on the ground landing on my left hand and right arm.

…

I was helped up off the ground by Micheal Lehtonen".[20]

  1. [21]
    After his x-ray the Appellant attended on Dr Tan on the day following the incident to find out his elbow was broken.  He subsequently visited Dr Cameron, GP on 13 September 2021 complaining of locking, clicking and pain in the medial aspect of his left knee.[21]
  1. [22]
    On 15 September 2021 a comprehensive Statement of Events via the telephone was taken by Ms Katherine Lawson at the Workers' Compensation Branch.[22]  In that statement the Appellant described symptoms to his knees[23] and said that "prior to 13 September 2021 no one had physically assessed either of my knee or wrist injuries".[24]
  1. [23]
    In a statement dated 20 September 2021 the Appellant recorded the mechanism of injury in the following way:

On 02/08/2021, I presented to work symptom free and at about 2:55PM, I went to get off the bus from R62 to X21.  The bus driver could not open the door, as it was an air-operated bus door.  I used the emergency override to open the bus door and showed the bus driver how to use the manual override.  The door opened but I did not realise that the bus had an electric operated step that did not deploy.  The bus had a faulty alternator that was not charging the battery and this was why the door did not open as well.  I had opened the door and there was someone else in front of me, he jumped down and did not tell me there was no step there.  The height of the top step to the ground was about 50cm.  I was half way through my step out of the bus when I noticed there was no step there.  I then stumbled and I fell to the ground on both knees, both wrists and on my right elbow.  I don't remember what part of [sic] body hit the concrete first, I have no idea how I landed on the ground.  I just remember a couple of guys helping me up off the ground.  I landed on my feet and then stumbled and I believe I may have landed on my hands first but I do not recall what hit the ground first or what happened at the time.  But I definitely landed on both of my hands, both of my knees and my right elbow.[25]

  1. [24]
    The Appellant's application for compensation was approved by XtraCare for a right radial head fracture and left knee strain on 30 September 2021.[26]
  1. [25]
    In a letter dated 13 October 2021 from Ms Lawson there is reference to a 30 September letter referring to a medical certificate dated 11 October 2021 by Dr Cameron as well as a report by Dr Reagan Brosnan, Orthopaedic Surgeon with a change from 'left knee strain' in the title to 'left patellar contusion'.[27]
  1. [26]
    The Appellant went on to say that when the pain from his right arm settled down, he noticed his right knee would lock up and there was a clicking, clugging sound that would go when he was sleeping.  It would lock up.[28]
  1. [27]
    The Appellant consulted Dr Cameron on 11 October 2021 where it is recorded:

"… [h]e also has the same pain in his right knee but nowhere near the same level of severity as the left.  Assumes that there's also a bony contusion since he fell on both knees".[29]

  1. [28]
    In accordance with the Appellant's evidence he had by 11 October been suffering a locking, clicking sensation in his right knee.[30]  Dr Cameron reiterated that was the first time there was any mention of any right knee pain.[31]  Dr Cameron said following examination of the right knee she found there was crepitus present in both knees.[32]
  1. [29]
    In cross-examination, specifically as to the Appellant's right knee, the following ensued:

MR CLARK Well, can I suggest to you, you know, you may be suffering from a painful elbow, but if your knee locks up - this is your right knee - makes a clicking sound, then locks back into position, it's not something you're going to easily forget now [sic] matter how much pain you're suffering in your elbow.  What do you say to that?

WITNESS --- I cannot remember.  It - it may have happened, but I can't remember it being that noticeable because I was in that much pain.  I couldn't - I couldn't sleep in bed, and I couldn't move around.[33]

  1. [30]
    It was put to the Appellant there was no reference to any contact between his knees and the ground by Dr Tan during the visit on the day of the incident on 2 August 2021.  The Appellant agreed however he claimed that he did tell Dr Tan about his knees hitting the ground.[34]
  1. [31]
    Despite the Appellant saying he described the knee symptoms to Dr Cameron and Dr Brosnan, he could not remember the date when he would have told them.  The Appellant also agreed that all these doctors asked him if he had any previous right knee problems.[35]
  1. [32]
    Reference was made to an entry for 30 March 2009 for right knee symptoms more particularly with the right knee locking up and being painful to which the Appellant agreed he was prescribed a strong painkiller.  He had no problems with his right knee thereafter.[36]
  1. [33]
    The Appellant also agreed that the Incident Report compiled by Nurse Brunton makes no reference to any contact between his knees and the ground and any injury to his knees.[37]
  1. [34]
    Further, the Appellant agreed there was no mention of any knee symptoms and no restrictions noted in Dr Tan's Work Capacity Certificate dated 5 August 2021.[38]  Similarly, there was no reference to any lower limb permutations in the medical certificate issued by Dr Brosnan on 5 August 2021.[39]
  1. [35]
    On 19 August 2021 the Appellant saw Dr Cameron who issued a fresh Medical Certificate.  There was no mention of any knee symptoms, and the Appellant could not remember if he told her.[40]
  1. [36]
    The Appellant agreed that in a record of examination by Dr Brosnan on 2 September 2021, there is no mention of any knee symptoms in a further Work Capacity Certificate issued that day.[41]
  1. [37]
    Dr Cameron recorded on 13 September 2021, "[p]atient complaining of locking, clicking and pain in the medial aspect of his left knee … ?Meniscal tear requiring MRI to confirm" and conducted an examination of the Appellant's left knee " … [c]repitus but present in both knees to the same extent".  The Appellant agreed that is all the record discloses and there is no mention of clicking, locking falling out of place in respect of the right knee.[42]
  1. [38]
    Dr Cameron also wrote to Ms Ashley Sabamba, MIM Health Advisor on 13 September 2021 (first consultation) indicating "[r]ight knee has been fine" to which the Appellant disagreed as he claimed the symptoms to his right knee would have to have been apparent by then in terms of locking, clicking … .[43]
  1. [39]
    In her evidence-in-chief, Dr Cameron said the Appellant had not mentioned any problem with the right knee at the time of the first consultation, only the left knee.[44]
  1. [40]
    At the next consultation with Dr Cameron on 11 October 2021 under the heading "On Review", Dr Cameron's clinical notes record:

He's doing okay.  No real change in his pain.  States he has also the same pain in his right knee but nowhere near the same level of severity as the left.  Assumes it is also a bony contusion since he fell on both knees.  Advised I agree with his assumption but, if it worsens or does not improve, we can mention it to Dr Brosnan to see if it warrants investigation/imaging as well.[45]

  1. [41]
    In his consultation with Mr Hudson Graham, Physiotherapist the clinical entry on 16 September 2021 reveals there is no mention of any right knee symptoms and or lower limb impediments.[46]
  1. [42]
    In his evidence, Dr Matthew Wilkinson, Orthopaedic Surgeon conducted an examination of the Appellant via video link on 6 July 2022.[47]  In his report, Dr Wilkinson referred to an MRI of the left knee on 1 October 2021 and an MRI of the right knee on 17 November 2021 with a diagnosis in respect of the right knee as follows:

Bilateral blunt injury to the knees with possible chondral injury to the patellofemoral joints on the background of early degenerative change.[48]

  1. [43]
    Further, Dr Wilkinson said:

There's an injury to the right knee that occurred on 2 August 2021, and his work was the significant contributing factor.

The mechanism was a fall onto his knees, and he complains of predominantly patellofemoral pain, and there are patellofemoral changes on his MRI, including chondral change to the trochlear region, which is consistent with this injury.[49]

  1. [44]
    In his evidence-in-chief, Dr Wilkinson agreed the injury is either the acute cartilage damage on the background of early degenerative change or an aggravation of pre-existing early degenerative change.[50]
  1. [45]
    In cross-examination, Dr Wilkinson agreed:

To tear the meniscus, it's going to take a different sort of event to what he described to you, one that would entail a combination of twisting and impact forces rather than a fall and a direct contact between the patella and the ground.  What do you say to that?---Yeah, I think that's correct, and that's why I was tending to favour that he'd aggravated or caused an injury to his patellofemoral joint rather than a meniscal injury.[51]

  1. [46]
    Dr Wilkinson went on to say, it can be 'very tricky' to differentiate between ongoing constitutional degeneration and an acute event.[52]
  1. [47]
    In re-examination, Dr Wilkinson said in his opinion with a history of having no symptoms prior to the fall, then at a minimum, his injury has significantly aggravated what was already there if not caused a further acute injury.[53]
  1. [48]
    On 30 September 2021 Dr Brosnan issued a Work Capacity Certificate.  The Appellant agreed there is a reference to avoid squatting but there is no mention of any right knee symptoms or right lower limb symptoms.[54]
  1. [49]
    In his evidence-in-chief, Dr Brosnan said that on 30 October 2021, at his monthly visit, the Appellant for the first time complained about his right knee giving him a lot of pain and he was referred for an MRI.[55]
  1. [50]
    Dr Brosnan was provided with a copy of a report prepared on the papers by Dr David Shooter, Orthopaedic Surgeon and he agreed with part of Dr Shooter's report that the Appellant has some degenerative change in his knee.  The report made the following two findings, "the chondromalacia patella, and changes in the cartilage behind his patella and that certainly were pre-existing this fall".[56]  Dr Brosnan said, "there's no way that anyone can say with 100 per cent surety that it did or did not occur in that fall".[57]
  1. [51]
    During cross-examination, Dr Brosnan said:

The MRI scan clearly demonstrates some pre-existing changes within Bradley's knee.  However, there's a definitive non-displaced tear of the posterior aspect of the medial meniscus, which is possibly directly related to the falling injury.

Okay.  Now - - -?---That is correct.

You'd agree with me you've used the word "possible".  Okay.  You accept that?---Absolutely.  Yes.

Okay?--- Fully accept it.

Beg your pardon, sorry?--- Yes, fully accepted.  As I said, there is no way anyone can say with 100 per cent surety either way.

No, look - - -?---This is the hard part of medicine.

I accept that, Doctor. Okay?---Yeah.

It's a hard part of our job as well if I can join with you.  But, nevertheless, in answer to question 3 - - -?---Yes.

- - - I suggest to you this is a fairly important piece of information:

Bradley explained in the consultation today that he actually remembers leading with his right leg -

okay.  He told you that?---Yep.

Continuing:

…which hit the ground hard.

Okay.  He told you that.  I'm taking this - - -?---Yep.

- - - step by step?---Yep.

That there was jarring and twisting.  Okay.  He told you that?---Correct.

Okay?--- Yes.

And then you've added in the bit of information:

…which could lead to an acute meniscal tear.

All right?--- Which could lead to, correct.

Could.  Sorry.  Okay.  All right.  What about this proposition: if his leg - if his right leg hit the ground hard with that jarring and twisting, he'd have pain in the right knee right from the outset of the injury, wouldn't he?--- He should have pain there, yes.[58]

  1. [52]
    Ms Natasha Dimmick, a Physiotherapist employed at Mount Isa Physiotherapy Centre provided treatment to the Appellant following his work-related fall on 2 August 2021 and reported, "[h]e fell on knees in full and has bilateral patellar bruising.  Pain improving.  Mild ache in elbow and knees".[59]
  1. [53]
    On 19 October 2021 Ms Dimmick provided a Provider Management Plan with the following under the heading Background:

Mr Smith currently reports his symptoms as stiffness in the right arm with pain, with increased activity, and pain in the knees when kneeling or using stairs.[60]

  1. [54]
    In his evidence-in-chief, Dr Shooter refers to the MRI of the right knee and his finding of, "[a] moderate patellofemoral and mild medial compartment chondromalacia" with some findings in respect of the medial meniscus which is on the inside of the knee.[61]
  1. [55]
    In cross-examination, Dr Shooter was referred to his Independent File Review stating:

Mr Smith's meniscal tear was degenerate.  As per the provided information the only symptom he seems to have is pain as there is no notation made as to any mechanical symptoms such as locking or giving way.[62]

  1. [56]
    In his opinion, Dr Shooter said in relation to the meniscal tears, "those tears were degenerate in that they were likely pre-existing and relating to arthritis".[63]
  1. [57]
    Dr Shooter was again referred to his Independent File Review, and expressed the opinion:

I find it more likely that the incident of 2 August 2021, aggravated a pre-existing condition and in doing so, I am taking at face value that Mr Smith claims his pain in the right knee did indeed start on 2 August 2021 whereas he only reported it three months later.[64]

  1. [58]
    Dr Shooter said the pre-existing condition would be the meniscal tear itself and any arthritis that was present.[65]
  1. [59]
    In further cross-examination, Dr Shooter went on to say:

… [E]ven if this is an acute exacerbation of a pre-existing condition as a result of an injury, again, I would've expected symptoms to start within a few hours to a few days, you know.  It - it should've been a problem, you know, with - within a few days of the injury, I would've thought.[66]

  1. [60]
    In re-examination, Dr Shooter agreed that a fall of the nature described by the Appellant can aggravate pre-existing degeneration in the meniscus.[67]
  1. [61]
    During further re-examination, reference was made to Dr Brosnan's report of 25 November 2021 and in particular the medial meniscus of the right knee, where Dr Brosnan said, "Bradley states he had not had any issue with respect to his right knee in the past".[68]
  1. [62]
    Dr Shooter agreed that this was "consistent with an aggravation of previously asymptomatic degeneration. … It's consistent with interarticular pathology, which could be related to aggravation of your - of a pre-existing condition.  That's correct. … so none of that is specific to the meniscal tear".[69]
  1. [63]
    In cross-examination the following exchange with Dr Shooter took place:

I'm simply saying that causation does not equate to correlation.  So he has an MRI showing he has a tear and he has pain, the two are not necessarily directly related.

No.  But they're consistent, is my point?--- Well, they're not inconsistent.

All right. And ultimately,

I take it then of the differing opinions about the nature of the injury that exists between Dr Wilkinson and Dr Brosnan, and despite the limitations of a file review, you are in large - largely in agreement with the fact that on the 2nd of August 2021, Mr Smith had a significant aggravation of preexisting degenerative change to the patellofemoral joint, as expressed by Dr Wilkinson?---Yes.  If we accept Mr Smith's story, which we are required to do from a medical legal view point.

Yes.  And that includes, as I say, the parts that I took you to?---Yes.  That's correct.

To be clear, if you accept the parts that I took you to, that is your opinion?---Yes.[70]

Consideration

  1. [64]
    There is no dispute that the Appellant suffered injuries in the course of his employment on 2 August 2021, nor is there any issue that he sustained injuries in respect of right radial head fracture and left patella contusion all of which were accepted injuries for the purposes of the WCR Act.
  1. [65]
    The real issue in these proceedings is whether the Appellant injured his right knee in addition to injuring other parts of his body when alighting from the bus on 2 August 2021.
  1. [66]
    An injury "in the course of employment" means an injury sustained while the worker is engaged in the work that he or she is employed to do or in something which is concomitant of, or reasonably incidental to, the person's employment to do that work.[71]
  1. [67]
    The case advanced by the Appellant is that there was an aggravation of pre-existing degenerative change to the patellofemoral joint.  That aggravation, if proved, would fall within the definition of "injury" for the purpose of s 32(1) of the WCR Act by virtue of s 32(3)(b) so long as the Appellant can also prove that the aggravation arose out of, or in the course of, his employment and the employment is a significant contributing factor to the aggravation.
  1. [68]
    The Appellant bears the onus of establishing his entitlement to compensation.  That is, it is for the Appellant to demonstrate to the Commission that the Respondent's decision was wrongly made.  The standard of proof is on the balance of probabilities.  Proof on the balance of probabilities requires actual persuasion.[72]
  1. [69]
    The principles relevant to the discharge of the onus of proof were discussed in Nguyen v Cosmopolitan Homes[73]where McDougall J (McColl and Bell JJA agreeing) said:
  1. A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact.  See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour's statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.
  1. Dixon CJ put the matter in different words, although to similar effect, in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 at 305 where his Honour said that "[t]he facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied".  Although his Honour dissented in the outcome of that case, the words that I have quoted were cited with approval by the majority (Stephen, Mason, Aickin and Wilson JJ) in West v Government Insurance Office of NSW [1981] HCA 38; (1981) 148 CLR 62 at 66.  See also Stephen J in Girlock (Sales) Pty Limited v Hurrell [1982] HCA 15; (1982) 149 CLR 155 at 161-162, and Mason J (with whom Brennan J agreed) in the same case at 168.
  1. It is clear, in particular from West and Girlock, that the requirement for actual satisfaction as to the occurrence or existence of a fact is one of general application, and not limited to cases where the fact in question, if found, might reflect adversely on the character of a party or witness.
  1. In Malec v JC Hutton Pty Limited [1990] HCA 20; (1990) 169 CLR 638 Deane, Gaudron and McHugh JJ said at 642-643:

A common law court determines on the balance of probabilities whether an event has occurred.  If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred.

  1. On analysis, I think, what their Honours said is not inconsistent with the requirement that the tribunal of fact be actually persuaded of the occurrence or existence of the fact before it can be found.  On their Honours' approach, what is required is a determination of the respective probabilities of the event's having occurred or not occurred.  There is nothing in that analysis to suggest that the determination in favour of probability of occurrence should not require some sense of actual persuasion.[74]
  1. [70]
    The case mounted by the Respondent is that the Appellant's claim is, in short, not supported by the contemporaneous medical records.  The Respondent contends that the fact that the Appellant did not raise right knee pain at an early stage is something which ought to be considered when determining whether or not the Appellant suffered an injury for the purposes of s 32 of the WCR Act.
  1. [71]
    In assessing the evidence, I am mindful of the warnings given in Container Terminals Australia Ltd v Huseyin[75]and Mason v Demasi[76] as to the appropriate treatment of clinical notes.  In Mason v Demasi Basten JA cautioned that clinical notes:
  • are usually taken in furtherance of a purpose different to that for which they are used in proceedings;
  • do not contain the questions of the health professional that elucidated the patient's reply;
  • are likely to be only a summary rather than a verbatim recording; and
  • are affected by a range of factors, including fluency of language and the patient's understanding of the purpose of the questioning.[77]
  1. [72]
    In Austen v Tran,[78] McWilliam AJ wrote:

… a cautious approach has been taken not to elevate clinical records to a higher status factually than other evidence given in the proceeding.[79]

  1. [73]
    It is not in doubt that the Appellant did not make a contemporaneous report of pain in his right knee.  Challenged as to why he did not report at an earlier stage the pain in his right knee, the Appellant said that he only began to notice his knee pain after his right elbow began to settle.  He said that the pain in his elbow was of such intensity that he did not notice his right knee.
  1. [74]
    Dr Brosnan said that the Appellant had a suffered a 'significant distracting injury'.  In re‑examination, Dr Brosnan was asked:

MR GREGGERY: …You gave an opinion that - in answer to the second-last question that Mr Smith should have pain at the time if he led with his right leg, hit the ground hard, jarring and twisting.  Did you see the reference to the passage in quotes, "slowly gotten worse", on the first page as being consistent with the answer you gave?

DR BROSNAN: He - he had a significant distracting injury in that he had actually broken his elbow, which - that pain would be quite significant.  And, you know, this is the trouble when you have a fall as such and you have multiple injuries because he certainly had the left knee injury as well at the time.  It's very hard to say whether he would be experiencing direct pain in that knee at that time.  But in all rights, you should have some sensation that it was there, and he - he was - you know, I can only go off the wording he gave me when I sat in front of him in Mount Isa to do that report.  I waited to do it until I could sit there and get his full clear history at that stage, and this is what he described to me.  So I hope that answers the question.[80]

  1. [75]
    Despite what is obviously a painful injury to his right elbow, the Appellant initially refused pain relief, went home after the injury on 2 August, and then went back to work the next day.  In cross-examination, Dr Wilkinson told the Commission: "I believe he had some symptoms, but I think part of the problem was that he did not complain of his right knee symptoms as much as his left symptoms initially."[81]
  2. [76]
    Nothing on the medical evidence is inconsistent with the mechanism of injury.
  1. [77]
    Whilst s 32(3)(b) of the WCR Act requires that an aggravation be treated as an injury, it does not remove the necessity of demonstrating that the injury (by way of aggravation) arose out of or in the course of the worker's employment and that the employment was a significant contributing factor to that injury.[82]
  1. [78]
    In Chattin v WorkCover Queensland[83], Williams P adopted the reasoning of Connolly J in Obstoj v Van de Loos[84] where his Honour said:

The function of a court of law in a situation such as this is to determine whether, for whatever reason, it is more probably than not that there is a causal relationship between the accident and the plaintiff's post-accident condition.[85]

  1. [79]
    The evidence of the Appellant, which I accept, was that his right knee was asymptomatic prior to the fall on 2 August 2021.  Post-accident the Appellant experienced a 'constant dull pain' which progressively increased over time.  He also experienced what was described as a '… lock up and clicking sound and it would click back into position'.[86]  In the report of Dr Brosnan of 17 December 2021, the Appellant is recorded as saying that the right knee symptoms had 'slowly gotten worse' since the injury.[87]
  1. [80]
    I accept that the mechanism of injury was that the Appellant fell from the bus striking the ground on both knees, both wrists and on the right elbow.
  1. [81]
    Moreover, there is no evidence of any intervening event which might otherwise account for the onset of the pain experienced by the Appellant.
  1. [82]
    In Taylor v Workers' Compensation Regulator,[88] I observed at [43] the following:

The Commission, as the tribunal of fact, can be assisted by expert medical opinion evidence, but must weigh and determine the probabilities as to the cause of an injury having regard to the totality of the evidence.  The Commission's duty is to find ultimate facts and, so far as it is reasonably possible to do so, to look not merely at the expertise of the expert witness, but to examine the substance of the opinion expressed and (where experts differ) to apply logic and common sense to the best of its ability in deciding which view is to be preferred or which parts of the evidence are to be accepted. (footnotes omitted)  The Commission, as the tribunal of fact, can be assisted by expert medical opinion evidence, but must weigh and determine the probabilities as to the cause of an injury having regard to the totality of the evidence.[89]  The Commission's duty is to find ultimate facts and, so far as it is reasonably possible to do so, to look not merely at the expertise of the expert witness, but to examine the substance of the opinion expressed and (where experts differ) to apply logic and common sense to the best of its ability in deciding which view is to be preferred or which parts of the evidence are to be accepted.[90]

  1. [83]
    While the medical experts agree there was an injury to the right knee on 2 August 2021, they differ as to the nature of the injury.[91]  Dr Brosnan was concerned with the medial meniscus; Dr Wilkinson focused on the chondral injury and Dr Shooter noted both injuries. 
  1. [84]
    Dr Wilkinson conducted a physical examination via a video link of the Appellant on 6 July 2022 with the assistance of Mr Danny Hill a physiotherapist. In Dr Wilkinson's report of 21 July 2022, it is recorded:

There is an injury to the right knee that occurred on 2 August 2021 and his work was the significant contributing factor.  The mechanism was a fall onto his knees, and he complains of predominantly patellofemoral pain, and there are patellofemoral changes on his MRI, including chondral change to the trochlear region, which is consistent with this injury.

There may have been some pre-existing degenerative change in the patellofemoral joint which was asymptomatic.

Therefore, his injury on 2 August 2021 represents an injury to the patellofemoral joints.  This represents, at a minimum, a significant aggravation of pre-existing degenerative change to the patellofemoral joints with his work duties being the most significant contributing factor to that aggravation although it is possible he in fact sustained an acute chondral injury sustained in the course of his employment on 2 August 2021 which is the cause of his ongoing knee pain.

  1. [85]
    Dr Wilkinson was of the opinion that the Appellant's fall aggravated or caused an injury to his patellofemoral joint rather than a meniscal injury.  In his view, "[w]ith a history of having no symptoms prior to the fall, then, at a minimum, it would be my opinion that his injury has significantly aggravated what was already there, if not caused sort of a further acute injury."[92]
  1. [86]
    Dr Shooter's described the pain experienced by the Appellant post-accident as an aggravation of degeneration which is consistent with the aggravation of the damage behind the knee.[93]
  1. [87]
    Dr Shooter accepted that the Appellant experienced, as a consequence of the incident, a significant aggravation of a pre-existing degenerative change to the patellofemoral joint, as expressed by Dr Wilkinson.[94]
  1. [88]
    Mr Clark for the Respondent highlighted the evidence of Dr Cameron following her examination of the Appellant on 13 September 2022.  Dr Cameron undertook a series of tests on the Appellant's left and right knees.  The only recorded similarity between both knees was there was some crepitus present in both.  Otherwise, the right knee was fine.[95]
  1. [89]
    However, as the MRI scan taken on 17 November 2021 reveals, the right knee was not fine.  In particular, the scan demonstrates, amongst other things, 'extensive degenerative signal through the medial meniscus'.[96]
  1. [90]
    Dr Cameron recorded the following in her clinical notes of 11 October 2021: "States he has also the same pain in his right knee but nowhere near the same level of severity as the left.  Assumes it is also a bony contusion since he fell on both knees.  Advised I agree with his assumption ... ."[97]
  1. [91]
    Dr Cameron told the Commission that she agreed with the Appellant's assumption because:

Well, when the patient said that he felt that it felt the same as a bony bruise, I agreed that, logically if you were to fall on one knee hard enough to cause a bone contusion in your femur or your tibia, it's logical or plausible to assume that you've caused the same injury in the other knee, especially if the symptoms are the same, if the patient is reporting it feels the same as that injury in the other joint. And, given that at that time, he wasn't reporting any other symptoms like clocking – clicking, locking, anything like that, I didn't feel like we had to further investigate it unless it got worse or didn't improve.[98]

  1. [92]
    As noted earlier, the MRI scan demonstrates in addition to some pre-existing changes within the Appellant's knee there is also a definitive non-displaced tear of the posterior aspect of the medial meniscus, which is possibly directly related to the falling injury.[99]
  1. [93]
    In his evidence, Dr Brosnan referred to the pre-existing change with the chondromalacia patella and the front part of the Appellant's right knee and a tear to the meniscus.  In Dr Brosnan's opinion the tear in the meniscus did not "…look to be overly old, as it was not complex in its tearing pattern and also had no parameniscal cyst change, either.  So it tended to fit in the timeframe … ."[100]
  1. [94]
    However, Dr Shooter was of the opinion that the tear was degenerate in that it was more than likely to be pre-existing and relating to arthritis.  In his view, if you have a tear of a normal meniscus, it takes a fair amount of force to do that.  Dr Shooter expressed the opinion that if the Appellant had an acute tear, you would ordinarily see a bigger fusion, a lot of fluid in the knee.  You would also normally see reciprocal bone bruising in the femur or the tibia.  That was not evident from the scan.[101]
  1. [95]
    Dr Wilkinson believed the tear to the meniscus would require a different sort of event to what was described by the Appellant.[102]  He told the Commission that it would require a combination of twisting and impact forces rather than a fall and a direct contact between the patella and the ground.  In his view he believed that the Appellant aggravated or caused an injury to his patellofemoral joint rather than a meniscal injury.  Dr Wilkinson was of the view that the mechanism of injury 'sounded more appropriate to an injury to his patellofemoral joint.'[103]
  1. [96]
    Whilst the evidence suggests the possibility of a tear to the meniscus arising out of the fall, I am not convinced that it was more probable than not that the meniscal injury was caused by the fall.
  1. [97]
    The case mounted by the Respondent was in large measure centred around the presence or absence of pain in the Appellant's right knee immediately after the fall.  Indeed, much of the questioning of the medical witnesses referred to the absence of pain in the right knee.  The Respondent argued that this lack of contemporaneous reporting of a right knee injury was something which ought to be taken into consideration by the Commission when determining whether the Appellant's personal injury arose out of or in the course of his employment. 
  1. [98]
    The medical records from Sonic Health Plus and tendered into evidence record that post the accident, the Appellant was prescribed Panadeine Forte 500mg and Celebrex 200mg.  On the records before me, the last recorded prescription for Panadeine Forte was issued on 3 August 2021 and for Celebrex on 13 September 2021.  In the clinical notes for the attendance on Dr Tan on 5 August 2021 it is recorded: "…continue with the same pain medications has 10 more days of panadeine forte; panadeine forte helped with sleep."[104]
  1. [99]
    The information contained in the clinical notes raises a concern in my mind that for a period leading up to the Appellant's first report of right knee pain on 11 October 2011, he was taking prescribed drugs which had both pain and anti-inflammatory properties.  It was never put to the medical witnesses what effect these drugs may have had on the Appellant and the presentation of pain.
  1. [100]
    Notwithstanding the above concerns, the evidence, in particular that of Dr Wilkinson and Dr Shooter support, in my view, a conclusion that the Appellant suffered a work-related injury, namely, an aggravation of pre-existing degenerative change to the patellofemoral joint which arose out of or in the course of his employment.  I further find on the evidence before the Commission that the Appellant's employment was a significant contributing factor.

Conclusion

  1. [101]
    The Appellant has discharged the onus to the requisite standard that he suffered an injury within the meaning of s 32 of the WCR Act.
  1. [102]
    The review decision dated 19 October 2022 is set aside and another decision substituted, namely, that the Appellant suffered an injury within the meaning of s 32 of the WCR Act.

Orders

  1. [103]
    I make the following orders:
  1. Pursuant to s 558(1)(c) of the Workers' Compensation and Rehabilitation Act 2003:
  1. the review decision of the Respondent is set aside; and
  1. another decision is substituted, namely, that the Appellant suffered an injury within the meaning of s 32 of the Workers' Compensation and Rehabilitation Act 2003.
  1. Pursuant to r 41(1) of the Industrial Relations (Tribunals) Rules 2011:
  1. the parties are to exchange and file written submissions on the costs of the hearing (of no more than two (2) pages, 12-point font size, line and a-half spacing with numbered paragraphs and pages) by 4.00 pm on Friday 4 October 2024; and
  1. unless otherwise ordered, the decision on costs be determined on the papers.

Footnotes

[1] Appellant's Statement of Facts and Contentions filed 24 February 2023, [1].

[2] Appellant's Statement of Facts and Contentions filed 24 February 2023, [4], [5].

[3] Ibid, [7].

[4] Exhibit 6.

[5] Exhibit 8.

[6] Exhibit 9.

[7] Appellant's Statement of Facts and Contentions filed 24 February 2023, [22].

[8] Ibid, p 4, [1], [2].

[9] Respondent's Statement of Facts and Contentions filed 31 March 2023, [34];  Exhibit 10, p 130.

[10] Respondent's Statement of Facts and Contentions filed 31 March 2023, [35].

[11] Respondent's Statement of Facts and Contentions filed 31 March 2023, [36]-[37].

[12] Ibid, [38].

[13] TR1-11, LL24-39.

[14] TR1-12, LL30-47.

[15] TR1-13, LL32-37;  Exhibit 3.

[16] TR1-14, LL2-10.

[17] TR1-15, LL3-17;  TR1-15, LL25-36.

[18] TR1-15, LL42-44.

[19] TR1-16, LL32-35;  Exhibit 4.

[20] TR1-17, LL12-28;  Exhibit 5.

[21] TR1-19, LL3-25.

[22] TR1-20, LL1-20;  Exhibit 7.

[23] TR1-20, LL46-47;  Exhibit 7, p 3.

[24] TR1-21, LL27-28;  Exhibit 7, p 4.

[25] Exhibit 7.

[26] Exhibit 8.

[27] Exhibit 9;  Exhibit 10, p 20, p 93.

[28] TR1-22, L42-TR1-23, L2.

[29] TR1-38, LL10-23;  Exhibit 10, p 20.

[30] TR1-38, LL25-27.

[31] TR1-51, LL6-7.

[32] TR1-50, LL30-31.

[33] TR1-27, L43-TR1-28, L2.

[34] TR1-29, LL36-45.

[35] TR1-28, LL11-25.

[36] TR1-28, LL29-47;  Exhibit 10, p 41.

[37] TR1-30, LL11-37, Exhibit 2.

[38] TR1-31, LL14-15;  Exhibit 11.

[39] TR1-32, LL1-5;  Exhibit 12.

[40] TR1-32, LL17-24;  Exhibit 13.

[41] TR1-32, LL34-37;  TR1-33, LL9-10;  Exhibit 14.

[42] TR1-34, LL14-42;  Exhibit 10, pp 18-19.

[43] TR1-35, LL7-42;  Exhibit 10, p 142.

[44] TR1-46, LL34-35.

[45] TR1-46, L44-TR1-47, L2;  Exhibit 10, p 20.

[46] TR1-35, L44-TR1-36, L47;  Exhibit 10, pp 83-84.

[47] TR1-53, LL27-30.

[48] TR1-54, LL11-23.

[49] TR1-54, LL29-39.

[50] TR1-55, LL32-34.

[51] TR1-56, LL40-45.

[52] TR1-57, LL13-15.

[53] TR1-58, LL30-32.

[54] TR1-37, LL37-47; Exhibit 15.

[55] TR1-62, LL11-28.

[56] TR1-64, LL1-14.

[57] TR1-64, LL20-21.

[58] TR1-66, L13-TR1-67, L13; Exhibit 10, p 103.

[59] TR2-3, LL13-47.

[60] TR2-4, LL22-39.

[61] TR2-13, LL1-37; Exhibit 10, p 141.

[62] TR2-14, LL6-11; Exhibit 10, p 113 (Dr Shooter's Independent File Review dated 9 February 2022, p 8).

[63] TR2-14, LL43-44.

[64] TR2-15, LL37-38; Exhibit 10, p 114 (Dr Shooter's Independent File Review dated 9 February 2022, p 9).

[65] TR2-15, LL40-42.

[66] TR2-16, LL41-45.

[67] TR2-20, LL3-4.

[68] Exhibit 10, Report of Dr Brosnan dated 25 November 2021, p 97.

[69] TR2-23, LL28-35.

[70] TR2-23, L38-TR2-24, L6.

[71] Commonwealth of Australia v Lyon (1979) 24 ALR 300, 303-304 (Deane J); Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473, 478 (Mason CJ, Deane, Dawson and McHugh JJ); Theiss Pty Ltd v Q-COMP [2010] ICQ 10.

[72] Nguyen v Cosmopolitan Homes [2008] NSWCA 246.

[73] Ibid.

[74] Nguyen v Cosmopolitan Homes [2008] NSWCA 246.

[75] [2008] NSWCA 320, [8].

[76] [2009] NSWCA 227, [2].

[77] Ibid.

[78] [2022] ACTSC 114, [8].

[79] Ibid.

[80] TR1-67, LL33-46.

[81] TR1-57, LL34-36.

[82] Qantas Airways Ltd v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 082; Luxton v Q‑Comp (2008) 190 QGIG 4; Q-Comp v Green (2008) 189 QGIG 747; Poulsen v Q-COMP [2012] ICQ 6.

[83] (1999) 161 QGIG 531.

[84] Obstoj v Van de Loos (Unreported, Supreme Court of Queensland, Connolly J, 13 April 1987).

[85] Chattin v WorkCover Queensland (1999) 161 QGIG 531, 532, quoting Obstoj v Van de Loos (Unreported, Supreme Court of Queensland, Connolly J, 13 April 1987).

[86] TR1-27, LL30-36.

[87] Exhibit 10, p 102.

[88] [2017] QIRC 6.

[89] Ramsay v Watson (1961) 108 CLR 642, 645 (Dixon CJ, McTiernan, Kitto, Taylor and Windeyer JJ); see also Adelaide Stevedoring Company Ltd v Forst (1940) 64 CLR 538, 563-4 (Rich ACJ); Chattin v WorkCover Queensland (1999) 161 QGIG 531, 532-3 (Williams P), quoting Obstoj v Van de Loos (Unreported, Supreme Court of Queensland, Connolly J, 16 April 1987).

[90] Holtman v Sampson [1985] 2 Qd R 472 , 474 (DM Campbell, Macrossan and Thomas JJ);  Taylor v Workers' Compensation Regulator [2017] QIRC 6.

[91] TR2-25, LL1-11.

[92] T1-58, LL21-32.

[93] TR2-31, LL27-49.

[94] T2- 23, LL44-48, T2-24, LL1-6.

[95] TR2-28, LL15-30.

[96] Exhibit 10, 141.

[97] Exhibit 10, Patient Health Summary, p 20.

[98] TR1-47, LL10-17.

[99] Exhibit 10, Report of Dr Brosnan dated 17 December 2021, pp 102-104.

[100] TR1-62, L-47-TR1-63, L3.

[101] TR2-15, LL1-15.

[102] TR1-56, LL40-45.

[103] TR1-57, LL1-2.

[104] Exhibit 10, Patient Health Summary, pp 16-17.

Close

Editorial Notes

  • Published Case Name:

    Smith v Workers' Compensation Regulator

  • Shortened Case Name:

    Smith v Workers' Compensation Regulator

  • MNC:

    [2024] QIRC 223

  • Court:

    QIRC

  • Judge(s):

    O'Connor VP

  • Date:

    10 Sep 2024

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538
2 citations
Jump To
Cite 1 - (1940) 64 CLR 538
Cite 2 - (1940) 64 CLR 538
Austen v Tran [2022] ACTSC 114
2 citations
Jump To
Cite 1 - [2022] ACTSC 114
Cite 2 - [2022] ACTSC 114
Briginshaw v Briginshaw (1938) 60 C.L.R 336
1 citation
Jump To
Cite 1 - (1938) 60 C.L.R 336
Briginshaw v Briginshaw (1938) HCA 34
1 citation
Jump To
Cite 1 - (1938) HCA 34
Chattin v WorkCover Queensland (1999) 161 QGIG 531
4 citations
Jump To
Cite 1 - (1999) 161 QGIG 531
Cite 2 - (1999) 161 QGIG 531
Cite 3 - (1999) 161 QGIG 531
Cite 4 - (1999) 161 QGIG 531
Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320
2 citations
Jump To
Cite 1 - [2008] NSWCA 320
Cite 2 - [2008] NSWCA 320
Girlock (Sales) Pty Ltd v Hurrell [1982] HCA 15
1 citation
Jump To
Cite 1 - [1982] HCA 15
Girlock Sales Pty Ltd v Hurrell (1982) 149 CLR 155
1 citation
Jump To
Cite 1 - (1982) 149 CLR 155
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473
2 citations
Jump To
Cite 1 - (1992) 173 CLR 473
Cite 2 - (1992) 173 CLR 473
Helton v Allen (1940) 63 CLR 691
1 citation
Jump To
Cite 1 - (1940) 63 CLR 691
Helton v Allen [1940] HCA 20
1 citation
Jump To
Cite 1 - [1940] HCA 20
Holtman v Sampson [1985] 2 Qd R 472
2 citations
Jump To
Cite 1 - [1985] 2 Qd R 472
Cite 2 - [1985] 2 Qd R 472
Jones v Dunkel (1959) 101 CLR 298
1 citation
Jump To
Cite 1 - (1959) 101 CLR 298
Jones v Dunkel [1959] HCA 8
1 citation
Jump To
Cite 1 - [1959] HCA 8
Luxton v Q-Comp (2008) 190 QGIG 4
2 citations
Jump To
Cite 1 - (2008) 190 QGIG 4
Cite 2 - (2008) 190 QGIG 4
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
1 citation
Jump To
Cite 1 - (1990) 169 CLR 638
Malec v JC Hutton Pty Ltd (1990) HCA 20
1 citation
Jump To
Cite 1 - (1990) HCA 20
Mason v Demasi [2009] NSWCA 227
2 citations
Jump To
Cite 1 - [2009] NSWCA 227
Cite 2 - [2009] NSWCA 227
Nguyen v Cosmopolitan Homes [2008] NSW CA 246
3 citations
Jump To
Cite 1 - [2008] NSW CA 246
Cite 2 - [2008] NSW CA 246
Cite 3 - [2008] NSW CA 246
Poulsen v Q-COMP [2012] ICQ 6
2 citations
Jump To
Cite 1 - [2012] ICQ 6
Cite 2 - [2012] ICQ 6
Q-COMP v Green (2008) 189 QGIG 747
2 citations
Jump To
Cite 1 - (2008) 189 QGIG 747
Cite 2 - (2008) 189 QGIG 747
Q-COMP v Hochen [2010] ICQ 10
1 citation
Jump To
Cite 1 - [2010] ICQ 10
Qantas Airways Ltd v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 82
2 citations
Jump To
Cite 1 - [2014] QIRC 82
Cite 2 - [2014] QIRC 82
Ramsay v Watson (1961) 108 CLR 642
2 citations
Jump To
Cite 1 - (1961) 108 CLR 642
Cite 2 - (1961) 108 CLR 642
Taylor v Workers' Compensation Regulator [2017] QIRC 6
3 citations
Jump To
Cite 1 - [2017] QIRC 6
Cite 2 - [2017] QIRC 6
Cite 3 - [2017] QIRC 6
The Commonwealth v Lyon (1979) 24 ALR 300
2 citations
Jump To
Cite 1 - (1979) 24 ALR 300
Cite 2 - (1979) 24 ALR 300
Theiss Pty Ltd v Q-COMP [2010] ICQ 27
1 citation
Jump To
Cite 1 - [2010] ICQ 27
West v Government Insurance Office of NSW (1981) 148 CLR 62
1 citation
Jump To
Cite 1 - (1981) 148 CLR 62
West v Government Insurance Office of NSW [1981] HCA 38
1 citation
Jump To
Cite 1 - [1981] HCA 38

Cases Citing

Case NameFull CitationFrequency
Smith v Workers' Compensation Regulator (No 2) [2024] QIRC 2573 citations
1

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