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Dwyer v Workers' Compensation Regulator[2025] QIRC 119

Dwyer v Workers' Compensation Regulator[2025] QIRC 119

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Dwyer v Workers' Compensation Regulator [2025] QIRC 119

PARTIES:

Dwyer, Paul Damien

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2022/187

PROCEEDING:

Appeal against decision of Workers' Compensation Regulator

DELIVERED ON:

13 May 2025

HEARING DATE:

17 and 18 October 2023

MEMBER:

Dwyer IC

HEARD AT:

Mackay

ORDER:

  1. Pursuant to s 558(1)(c) of the Workers' Compensation and Rehabilitation Act 2003 (Qld) the review decision of the Regulator dated 19 October 2022 is set aside and another decision is substituted, namely that:

The Appellant's application pursuant to s 132A of the Workers' Compensation and Rehabilitation Act 2003 (Qld) that is the subject of this proceeding is one for acceptance.

  1. The Regulator pay the Appellant's costs of the hearing in an amount to be agreed. In the event that the parties cannot agree they have liberty to apply for a determination on costs by the Commission.  

CATCHWORDS:

WORKERS' COMPENSATION – ENTITLEMENT TO COMPENSATION – where appellant was employed as an Effet operator – incident causing injury to left knee - incident alleged to occur in November 2018 – question as to whether incident occurred – incident occurred – multiple underlying conditions in left knee – appellant contends for alternative injuries – medical evidence supports conclusion as to personal injury – other elements of definition of injury satisfied – claim is one for acceptance. 

LEGISLATION:

Workers' Compensation and Rehabilitation Act 2003 (Qld) s 32, s 132A

CASES:

Austin v Workers' Compensation Regulator [2025] QIRC 110

Holtman v Sampson [1985] Qd R 472

State of Queensland (Queensland Health) v Q-Comp and Beverley Coyne [2003] ICQ 9

Ramsay v Watson (1961) 108 CLR 642

APPEARANCES:

M. Holmes, Counsel instructed by Taylors Solicitors for the Appellant

S. A. McLeod KC, Counsel directly instructed by the Workers' Compensation Regulator

Reasons for Decision

Introduction

  1. [1]
    Mr Paul Damien Dwyer[1] was employed as an Effet Operator at the Farleigh Sugar Cane Mill ('the mill') by Mackay Sugar Limited. Mr Dwyer contends that in the course of his employment, in or about November 2018, he suffered a left knee injury in the form of:[2]
  1. a tear of the posterior horn of the medial meniscus, oedema (bruising) of the posterior portion of the medial condyle, and a subchondral fracture of the medial femoral condyle; or alternatively
  1. a left knee injury in the form of an aggravation of pre-existing degenerative change.
  1. [2]
    It is trite to observe that, subject to satisfaction of the other elements of section 32(1) of the Workers Compensation and Rehabilitation Act 2003 (Qld) ('the WCR Act'), either contention could satisfy the definition of 'personal injury' if the medical evidence supporting it is accepted.
  1. [3]
    The injury is said to have occurred on an unspecified date in November 2018 when Mr Dwyer stepped on a drain grate that gave way causing his left leg to drop into the drain. Mr Dwyer contends his leg dropped to a depth of approximately 20 centimetres ('the incident').
  1. [4]
    While Mr Dwyer experienced some symptoms in the aftermath of the incident, he was able to continue working and did not make any claim for compensation at that time.[3] The details and relevance of the symptoms experienced immediately after the incident are discussed later in these reasons.  
  1. [5]
    Relevantly, in June 2019 (approximately 7 months after the incident) Mr Dwyer developed symptoms in his left knee while performing some of his duties at the mill. He lodged a claim for compensation in respect of those symptoms which were alleged to arise from activities such as climbing stairs and scraping a mud filter. That application was accepted by WorkCover Queensland ('WorkCover') ('the first workers compensation claim') but the decision was subsequently reversed on review by the Workers' Compensation Regulator ('the Regulator'). Mr Dwyer lodged an appeal against that decision, but he later discontinued it.  
  1. [6]
    These appeal proceedings relate to an entirely separate claim.  On 23 August 2021, some three and a half years after the incident, Mr Dwyer made an application pursuant to section 132A of the WCR Act for assessment of permanent impairment by WorkCover of the left knee injury he allegedly sustained as result of the incident.  
  1. [7]
    WorkCover rejected that application. By review decision dated 19 October 2022, the Regulator confirmed the decision of WorkCover to reject Mr Dwyer's application for assessment for permanent impairment for the knee injury ('the decision').
  1. [8]
    On 17 November 2022, the Appellant appealed the decision to the Queensland Industrial Relations Commission ('the Commission').

The appeal proceedings

  1. [9]
    An appeal of this type is a hearing de novo. Mr Dwyer bears the evidentiary onus of establishing, on the balance of probabilities, that he suffered an injury within the meaning of section 32 the WCR Act.[4]
  1. [10]
    Mr Dwyer contends that the knee injury arose out of the incident and that in those circumstances it is an injury within the meaning of that term as it is defined in section 32 of the WCR Act. 
  1. [11]
    The Regulator contends that has Mr Dwyer has not sustained any knee injury as a consequence of the work incident in or about November 2018 as he alleges.[5] While the Regulator's case has relied primarily on the evidence of a medical expert witness, there has also been significant effort applied by the Regulator to cast doubt on the veracity of  Mr Dwyer's account of the incident and his case generally.[6]
  1. [12]
    In those circumstances, while the Regulator has not overtly asserted it, it must be implied from their conduct of the matter and the submissions filed that they also contend that the incident did not occur.
  1. [13]
    There can be no dispute that the various radiology and examinations conducted in or about June/July 2019 demonstrate that Mr Dwyer's left knee was affected by multiple underlying pathologies.[7] The Regulator has conceded that, at all material times, Mr Dwyer was a worker within the meaning of section 11 of the WCR Act.
  1. [14]
    Therefore, the contested issues for my determination in this appeal are:
  1. whether the incident alleged to have occurred in or about November 2018 did in fact occur; and if so
  1. whether it caused (in its own right or by aggravation) a personal injury within the meaning of section 32 of the WCR Act to Mr Dwyer's left knee.
  1. [15]
    While not overtly conceded or contested by the Regulator, the question as to whether the alleged injury arose out of or in the course of Mr Dwyer's employment, and whether employment was a significant contributing factor are matters more efficiently addressed after the resolution of the two contested issues. 
  1. [16]
    For the reasons that follow, I have concluded that Mr Dwyer suffered an injury within the meaning of section 32 of the WCR Act.

Legislation

  1. [17]
    Section 32 of the WCR Act outlines the meaning of 'injury' as follows:

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.

…

(Emphasis added)

  1. [18]
    Section 132A of the WCR Act relevantly sets out:

132A Applying for assessment of DPI if no application made for compensation

  1. This section applies to a worker who has not made an application under section 132.

(1A) However, this section does not apply to a worker who is, or may be, entitled to compensation under chapter 4A.

  1. The worker may apply to the insurer to have the worker's injury assessed under section 179 to decide if the worker's injury has resulted in a DPI.
  1. An application under subsection (2) must be –
  1. lodged with the insurer; and
  1. in the approved form; and
  1. accompanied by –
  1. a certificate in the approved form given by a doctor who attended the worker; and
  1. any other evidence or particulars prescribed under a regulation.
  1. A registered dentist may issue the certificate mentioned in subsection (3)(c)(i) for an oral injury.
  1. If the worker can not complete an application because of a physical or mental incapacity, someone else may complete it on the worker's behalf.
  1. The insurer must, within 40 business days after an application under subsection (2) is made, decide to allow or reject the application.
  1. The insurer may reject the application only if satisfied the worker –
  1. was not a worker when the injury was sustained; or
  1. has not sustained an injury; or
  1. is, or may be, entitled to compensation under chapter 4A because –
  1. the worker has sustained a serious personal injury that meets the chapter 4A eligibility criteria; and
  1. section 116 does not apply to the injury.
  1. The insurer must notify the worker of its decision on the application.
  1. If the insurer rejects the application, the insurer must also, when giving the worker notice of its decision, give the worker written reasons for the decision and the information prescribed by regulation.
  1. If the worker is aggrieved by the insurer's decision on the application, the worker may have the decision reviewed under chapter 13.
  1. If the insurer does not decide the application within the time stated in subsection (6)–
  1. the insurer must, within 5 business days after the end of the time stated in subsection (6), notify the worker -
  1. of its reasons for not deciding the application; and
  1. that the worker may have the insurer's failure to decide the application reviewed under chapter 13; and
  1. the worker may have the insurer's failure to decide the application reviewed under chapter 13.
  1. To remove any doubt, it is declared that a decision of the insurer to allow the application does not entitle the worker to compensation for the injury.

(Emphasis added)

Consideration

The incident

  1. [19]
    Although he could not recall a specific date, Mr Dwyer gave evidence that on an afternoon shift towards the end of the crushing season in 2018 he was required to access a valve under a floc tank. In the process of accessing the valve, Mr Dwyer stated that he placed his foot on to a metal grate covering a drainage gutter. The grate apparently gave way, and Mr Dwyer says his left leg dropped (approximately 20 centimetres) into the gutter.[8] 
  1. [20]
    Mr Dwyer describes his reaction to the incident at the time as having 'hurt' his knee.[9] He says that he took steps to highlight the ill-fitting grate by placing some tape around it.[10] He then contends that he verbally reported the incident to the shift supervisor (Mr Hodge).[11]
  1. [21]
    Mr Dwyer continued to perform his duties for the remainder of that shift and for another couple of weeks until the end of the crushing season. Thereafter his role converted to his off-season duties at the mill as a security guard until returning to his role as a machine operator in or about April 2019.
  1. [22]
    Mr Dwyer was not incapacitated by the incident. While he experienced mild ongoing discomfort, he was able to carry on working after the incident, for both that shift and for a number of weeks.
  2. [23]
    After the crushing season ended, his work as a security guard was physically much lighter work and produced no symptoms of any note. It was not until more than 6 months later, upon commencement of the next crushing season, that he returned to his heavier duties and he began to notice increasing symptoms in his knee.
  1. [24]
    In the context of considering results of radiological examinations in mid-2019, Mr Dwyer’s treating general practitioner noted inter alia the tests revealed a tear to the meniscus. Mr Dwyer was pressed by the doctor to reflect on any recent trauma to his knee that might explain this. It was only when asked to reflect on any relevant trauma to his knee that Mr Dwyer had cause to recall and nominate the details of the November 2018 incident.[12]
  1. [25]
    In circumstances where there is some criticism of apparent inconsistencies in his account of the incident, it is relevant to observe that mid-2019 appears to be the first time Mr Dwyer has turned his mind to the incident since it occurred. Even 7 months after the fact, it is not unreasonable to assume that Mr Dwyer's memory of the precise details of the incident will have been (and continue to be) affected by the passage of time.
  1. [26]
    Apparently for the purpose of corroboration, Mr Dwyer called evidence from Ms Bianca Hallam, a former co-worker. Ms Hallam gave evidence of experiencing a drainage grate becoming displaced in a similar fashion. Ms Hallam's incident post-dated the Appellant's incident by at least 6 months. An objection was made during the hearing as to the relevance of her evidence. The objection was largely upheld and reasons delivered ex tempore.[13]
  1. [27]
    In terms of the remaining evidence of Ms Hallam I intend to disregard it entirely. The Regulator's contentions cast doubt on whether the incident occurred, but they do not go so far as to contend that the grate did not collapse or could not have collapsed as alleged. In those circumstances, evidence that another worker experienced a similar mechanism of injury at a later date does not assist in resolving the very narrow question of whether Mr Dwyer's incident occurred or not.     
  1. [28]
    Counsel for the Regulator conducted a detailed cross examination of Mr Dwyer that, unsurprisingly, revealed inconsistencies in aspects of his descriptions of the incident. The practice of pressing a witness to reconstruct the precise details of a relatively brief incident, especially when there has been a significant lapse of time, is of dubious merit. Even 6 months after such an incident a witness will be unlikely to recall all details with precision. Genuine efforts by a witness to respond to questions seeking precise details will invariably give rise to witness innocently but inaccurately reconstructing facts.
  1. [29]
    The fact that Mr Dwyer's reconstruction of the event is inconsistent or inaccurate on some details does nothing to undermine his otherwise consistent account of the most critical facts alleged i.e. that the grate gave way beneath his foot, his left leg fell in, and he experienced pain in his left knee.
  1. [30]
    There was no evidence from the Regulator to the effect that the grate could not have given way in the manner alleged.[14] The Regulators case on this issue was simply that there was no evidence that Mr Dwyer reported the incident. From that contention I am, somewhat tacitly, asked to accept that the incident did not occur.
  1. [31]
    In support of their contention, the Regulator called evidence from the shift supervisor at the time of the incident, Mr Angus Hodge. The net effect of Mr Hodge's evidence was that he had no recollection of the Appellant reporting the incident to him in late 2018.[15] The fact that Mr Hodge testified he was 'quite certain' he had no recollection of the incident being reported does nothing to enhance the weight of his evidence.
  1. [32]
    Unfortunately, beyond his lack of recollection, Mr Hodge was then drawn (in cross examination) into an exercise in speculation. To be fair, it was not speculation of an objectionable nature. It was speculation informed by reference to relevant training and experience about processes for reporting such incidents. But it was speculative evidence, nevertheless.
  1. [33]
    The evidence of Mr Hodge went to his knowledge of procedures for reporting and documenting such incidents and he then gave evidence that because he had not undertaken any of these procedures, his lack of recollection of any report of the incident must mean that it was not reported.[16] 
  1. [34]
    While Mr Hodge's musings about the lack of supporting documentation for the incident add a degree of plausibility to his theory that no incident was reported, they do not rise to the level of probability required for me to make a finding to that effect. In my view Mr Hodge has succumbed to the flawed logic that his lack of recollection of the incident being reported must mean that it was not reported.
  1. [35]
    Having observed both Mr Dwyer and Mr Hodge give their evidence I do not consider that either of them were deliberately misleading or dishonest. On the contrary, I observed both of them make their best efforts to recall the details of a brief event that occurred many years before. Each of them was plainly attempting to reconstruct events that neither of them could be expected to reliably recall.
  1. [36]
    The case put by the Regulator was that Mr Dwyer did not report the incident to Mr Hodge.[17] It does not appear it was ever put to Mr Dwyer in cross examination that the incident did not happen.[18] But even if that were the proposition advanced by the Regulator, such a contention is to implicitly invite a conclusion that Mr Dwyer is more than just an unreliable historian. It implies he is dishonest. I do not accept that.
  1. [37]
    Alternatively, if that conclusion is not invited by the Regulator,  a finding that the incident was not reported to Mr Hodge does not exclude a finding that the incident occurred as described. It might (at best) imply that Mr Dwyer was mistaken about which incident he reported, though that proposition was never proven.[19] The overall submission of the Regulator was that Mr Dwyer's evidence was unreliable.
  1. [38]
    On the whole I am satisfied that Mr Dwyer is a reliable witness, at least on the matters of importance. There are a number of features about Mr Dwyer's account of the incident, both in the aftermath and while giving evidence, that lead me to prefer his evidence.
  1. [39]
    Firstly, despite the inconsistencies on some aspects of his account of the incident, I observed him to be a credible witness who remained consistent on the key aspects of the incident, namely that he stepped on a grate, it fell away beneath him, he hurt his knee, and he told Mr Hodge.
  1. [40]
    For completeness I should add that the submissions about inconsistencies in accounts given to doctors years later etc. are largely immaterial. As I have already observed, intense consideration of the factual minutia surrounding the incident will inevitably produce evidence of inconsistency. This is especially so when Mr Dwyer is asked to give an account of the incident to medical experts and others many months and even years after the fact. None of that detracts from the reliable and consistent representations made by Mr Dwyer (to everyone) as to the mechanism of injury.  
  1. [41]
    Secondly, when giving evidence about the aftermath of the incident Mr Dwyer gave answers that went against his interests, but which were quite plainly an honest account. My impression of his evidence about the period after the incident was that he was largely untroubled by symptoms. He described them as 'no drama' or 'it got better'.[20] Indeed, even under cross examination the Appellant eschewed opportunities to embellish the symptoms in his knee in the months after the incident and instead gave a very understated and, in my view, honest account. [21]
  1. [42]
    Finally, if Mr Dwyer had been intent on creating a fictitious narrative about a workplace incident, in my view it is highly improbable that such a concoction would have included a reference to reporting the incident to Mr Hodge. Even the most unsophisticated witness offering a dishonest account of an event would instinctively appreciate that nominating a witness to a fictitious event would likely undo the entire story. The inclusion of this aspect of his account lends significant credibility to Mr Dwyer's account.
  1. [43]
    By contrast, I consider it far more plausible that Mr Hodge simply does not recall Mr Dwyer reporting the incident to him. Further, in light of his obviously stoic character and his unembellished testimony, I consider it entirely probable that Mr Dwyer displayed a similarly blasé attitude to the incident at the time, which may have contributed to inaction by Mr Hodge to formally respond to the incident and then simply forget it.
  1. [44]
    Beyond his lack of recollection, it was my impression that Mr Hodge's speculative evidence relying on his understanding of reporting systems etc. was simply an ambitious attempt (many years after the fact) to scaffold a narrative that he could not otherwise support from direct recollection. 
  1. [45]
    In the circumstances I prefer the evidence of Mr Dwyer and I conclude that, in all probability, the incident occurred in or about November 2018 as he describes it, including that he reported it to Mr Hodge. Having arrived at this conclusion, it only remains to consider whether the medical evidence supports a conclusion that the incident gave rise to an injury within the meaning of the WCR Act.

Medical evidence of personal injury

  1. [46]
    The role of the Commission in appeals of this nature is to evaluate an appellant's claim for compensation in a hearing de novo. An appellant has the onus of to prove, to the civil standard, their claim is one for acceptance. In order for the Commission to reach such a conclusion there must be inter alia sufficient evidence before it to satisfy each of the elements of the definition of injury contained at section 32 of the WCR Act.
  1. [47]
    In respect of competing medical opinions, Deputy President Merrell  enunciated some useful principles in Ribeiro v Workers' Compensation Regulator.[22] While I do not propose to reproduce those principles in full, the authorities summarised in that decision establish that inter alia it is for the Commission, as the tribunal of fact, to weigh and determine the probabilities of the cause of an injury, having regard to the whole of the evidence.[23] In doing so, the Commission may be assisted by the medical evidence but ultimately, the Commission must look behind the expertise of the expert witness and examine the substance of the expert opinion expressed.[24]
  1. [48]
    While the experts in this matter differ in their opinions as to the cause of inter alia the tear to Mr Dwyer's meniscus, their evidence ultimately evolved in a way that established a spectrum of common ground on the question of personal injury within the meaning of the WCR Act.
  1. [49]
    It is not essential or necessary for the Commission to make a finding as to a precise diagnosis. It may be that, in some appeals, the Commission can make a finding with that degree of precision where e.g. there is accord amongst experts as to a specific diagnosis. But a finding of personal injury is equally possible without a precise or agreed diagnosis. Provided the Commission has sufficient facts before it which, together, allow the Commission to be satisfied an appellant (in all probability) sustained a personal injury, it is unnecessary for the Commission to resolve competing diagnoses that each support such a conclusion.
  1. [50]
    In this appeal the nature of the personal injury contended for by Mr Dwyer is expressed in his Statement of Facts and Contentions ('SOFC') as a meniscal tear, oedema (bone bruising) of the medial femoral condyle, and subchondral fracture of the medial femoral condyle. Alternatively, Mr Dwyer contends his personal injury is an aggravation of these preexisting conditions in his left knee.
  1. [51]
    Mr Dwyer submits that these (alternative) personal injuries arose out of or in the course of his employment, more particularly, out of the incident in November 2018.
  1. [52]
    Mr Dwyer called evidence from Dr Allan Cook, a Specialist Orthopaedic Consultant. The Regulator called evidence from Dr Babatunde Salman, a Consultant Orthopaedic Surgeon.   Much of the contest between the medical experts turned on whether Mr Dwyer sustained the tear to his meniscus as a consequence of the incident.
  1. [53]
    There was significant conjecture as to the level of symptomology likely to have been experienced by Mr Dwyer had he sustained the tear during the incident. This was in a context of Mr Dwyer's evidence that he did not experience symptoms before the incident and experienced only mild symptoms in the immediate aftermath.
  1. [54]
    In his written report tendered in evidence, the opinion of Dr Cook is that Mr Dwyer sustained a 'possible' soft tissue injury and a small tear to his medial meniscus in the incident. [25]
  1. [55]
    By contrast, the written report in evidence from Dr Salman points to a broad suite of underlying pathologies which (with one very important exception) he contends had no relationship to the incident. He does however opine in his report that 'at best consideration' Mr Dwyer 'might' have sustained an acute exacerbation of a pre-existing degenerative process in his left knee. [26]
  1. [56]
    While Dr Cook contended that the meniscal tear was likely caused by the incident, Dr Salman opines that the meniscal tear predated November 2018 and was therefore a pre-existing condition. Dr Salman's opinion on this is supported, he says, by the evidence of the parameniscal cyst seen on scans in July 2019. Dr Salman says that such cysts emerge in the presence of a meniscal tear and one can reliably calculate the age of the tear by reference to the presence and size of the cyst. For these reasons Dr Salman did not accept the contention that the incident had caused the tear in Mr Dwyer's meniscus.  
  1. [57]
    Regrettably the evidence at hearing descended into (what transpired to be) an unnecessary medical 'whodunit'. A great deal of time was spent on evidence devoted to inter alia the science of predicting the time frame for the development of parameniscal cysts, their relationship to meniscal tears, the evidence and cause of oedema, and the causal relationship (or otherwise) of all of these conditions (if any) to the incident in November 2018.
  1. [58]
    The obfuscating effect of the diversion down this path was further compounded by an absence of any direct evidence lead from Mr Dwyer's medical expert to support the alternative contention of 'aggravation' of pre-existing degenerative changes. The evidence lead from Mr Dwyer's medical expert at hearing appears to concentrate solely on the contention that the incident caused the meniscal tear.
  1. [59]
    Ultimately, evidence addressing the alternative argument of aggravation was provided obliquely (but clearly) by the medical expert called by the Regulator.
  1. [60]
    In giving his evidence about inter alia scientific theory around time frames for developing parameniscal cysts and their relationship to meniscal tears, Dr Salman made this statement:[27]

Now, if we go back to his – time of his symptoms, originally described that he had an injury in October/November 2018, can somebody with that acute tear of the meniscus not have significant symptoms when they have a tear? In October/November, it's unlikely. Now, if somebody has had  a longstanding tear, maybe a [indistinct] degeneration in the meniscus and became bigger and they stand and they still have time to develop, you might not show any symptoms. You might be able to get around without any problem. Now, what I'm – my thought, my opinion is that most likely, this gentleman, if he has twisted his knee in October/November 2018, most likely aggravated this or exacerbate* this chronic tear and that's why he was able to [indistinct] not a fresh acute tear. 

  1. [61]
    Significantly, Dr Salman's opinion when giving his evidence is that ‘if’ the incident occurred, Mr Dwyer 'most likely' aggravated a chronic tear (in his meniscus). His opinion during cross examination advances further than the opinion expressed in his report that it 'might' be an exacerbation. I consider 'most likely' to be synonymous with 'probably'. Dr Salman's opinion expressed during cross examination was not further disturbed in the proceedings.
  1. [62]
    I have accepted that the incident occurred as alleged by Mr Dwyer. Subject to being satisfied that the injury arose out of employment and that the employment was a significant contributing factor, the evidence given by Dr Salman supports a conclusion that Mr Dwyer suffered a personal injury within the meaning of the WCR Act.[28]  I accept the opinion of Dr Salman.
  1. [63]
    In doing so that does not mean that I reject the opinion of Dr Cook. It is simply unnecessary for me to embark on further consideration where I have a plain and reliable opinion consistent with a conclusion that Mr Dwyer has suffered a personal injury within the meaning of the WCR Act. Precisely what the injury is and e.g. for how long any aggravation might have persisted after November 2018 is a matter for argument by others, at another time, in another forum.
  1. [64]
    I find that Mr Dwyer suffered a personal injury within the meaning of the WCR Act in November 2018 as a result of the incident.

Did the injury arise out of or in the course of employment

  1. [65]
    Having regard to the mechanism of Mr Dwyer's injury there can be no dispute that it occurred while he was at his place of employment performing his usual duties. Whatever the diagnosis of Mr Dwyer's injury might be, it cannot be disputed that the injury in question arose out of or in the course of Mr Dwyer's employment. 

Was employment a significant contributing factor to the Appellant's knee injury?

  1. [66]
    In the recent decision of Austin v Workers' Compensation Regulator[29] His Honour, Vice President O'Connor observed:

For the purposes of s 32(1), where the Act speaks of employment being a significant contributing factor to the injury, significant is used in the sense of "important" or "of consequence".

The requirement that the employment is a significant contributing factor to the injury requires that the exigencies of the employment must contribute in some significant way to the occurrence of the injury.

…

In Qantas Airways Ltd v Q-Comp Hall P was invited to elevate the word "significant" to the same level as "substantial". His Honour said:

On balance, I am not prepared to accept the submission that "significant" bears the meaning of "large", "great", "weighty" or "substantial". I regret that I am unable to be more precise in fixing the meaning of "significant" as towards the lower end but not at the base of the spectrum, and (to the extent that adjectives may be used without supplanting the statutory language) using words such as "strong", "important" or "of consequence".

(Citations omitted)

  1. [67]
    If one were to consider the diagnosis of aggravation of pre-existing degenerative changes, on the evidence of Dr Salman alone, there is little doubt that the incident was a (if not ‘the’) significant contributing factor to the injury. The limited presence or reporting of symptoms or incapacity immediately following the incident does not speak to the significance of the contribution by the employment. Such matters are confined in their relevance to consideration of e.g. the length of time that the effects of the aggravation may be said to have persisted.
  1. [68]
    I am satisfied that, in the circumstances of the incident, Mr Dwyer's employment was a significant contributing factor to his personal injury.

Conclusion  

  1. [69]
    It would seem that the doubt about whether Mr Dwyer did or did not report the incident, the delayed onset of more significant symptoms, and the delay in making his s 132A application all gave rise to a view on the part of WorkCover (and later the Regulator) that Mr Dwyer's application ought not to be accepted.[30] But, despite these factors, there was no medical evidence that unequivocally tended against acceptance.
  1. [70]
    The report of Dr Salman (commissioned as part of the WorkCover investigation of the claim) concluded that ‘at best consideration’ Mr Dwyer ‘might’ have sustained an acute exacerbation of his degenerative process. The report of Dr Salman added a distracting medical complexity to the matter which, in my view, obscured a very simple and entirely plausible claim.
  1. [71]
    While it does not fall to me to enunciate a precise diagnosis, to hypothesise that: Mr Dwyer had pre-existing array of degeneration in his left knee, he suffered a mild trauma in the incident in November 2018, and thereby aggravated the pre-existing conditions, is a theory entirely within the realms of probability. Indeed, it is hard to imagine a more common form of physical injury claim within this scheme.
  1. [72]
    In those circumstances it is difficult to understand why WorkCover denied Mr Dwyer the benefit of the ‘best consideration’ contemplated by Dr Salman in his report. Mr Hodge’s simple lack of recall was not enough in my view to justify such a miserly approach to Mr Dwyer’s claim.
  1. [73]
    Further I note that Dr Salman was briefed by WorkCover in preparation for writing his report. The briefing includes WorkCover informing Dr Salman that Mr Dwyer’s employer had no record of him reporting the incident.[31] One has to wonder whether such information is always relevant for briefing of a medical expert, especially where the assertion is contested. The potential for such information to trigger conscious or unconscious bias in an expert is high. I note that many of the key conclusions in Dr Salman’s report are qualified in the context of the doubt raised by the assertion that Mr Dwyer did not report the incident but, to be clear, I draw no conclusions about Dr Salman’s state of mind from this.[32] 
  1. [74]
    Even if he was influenced in this way, the opinion expressed in Dr Salman’s report still plainly ‘connects the dots’ between Mr Dwyer’s array of  pre-existing degenerative conditions and an exacerbation by the incident. And, as noted earlier in these reasons, Dr Salman’s testimony at the hearing expands upon this conclusion in a far more definitive way.
  1. [75]
    Having regard to all of the evidence and the submissions of the parties I am satisfied that Mr Dwyer is a 'worker' and that he sustained an injury within the meaning of the WCR Act. It follows that I intend to allow his appeal.

Order

  1. [76]
    I make the flowing Orders:
  1. Pursuant to s 558(1)(c) of the Workers' Compensation and Rehabilitation Act 2003 (Qld) the review decision of the Regulator dated 19 October 2022 is set aside and another decision is substituted, namely that:

The Appellant's application pursuant to s 132A of the Workers' Compensation and Rehabilitation Act 2003 (Qld) that is the subject of this proceeding is one for acceptance.

  1. The Regulator pay the Appellant's costs of the hearing in an amount to be agreed. In the event that the parties cannot agree they have liberty to apply for a determination on costs by the Commission.  

Footnotes

[1] Mr Dwyer is not related or otherwise known to me. 

[2] Appellant's Statement of Facts and Contentions ('SOFC') filed 7 March 2023, Annexure "B", [2] – [3].

[3] T 1-22, ll 5-10; T 1-49, ll 15-45.

[4] State of Queensland (Queensland Health) v Q-Comp and Beverley Coyne [2003] ICQ 9.

[5] Respondent's Statement of Facts and Contentions ('SOFC') filed 28 April 2023, [24].

[6] Respondent's outline of submissions filed 27 November 2023, [29].

[7] See for example the MRI report dated 24 July 2019 – Exhibit 1, Tab 6.

[8] T 1-17 to T 1-20; T 1-35 to T 1-37.

[9] T 1-19, ll 40-45; T 1-42, ll 10-20.

[10] T 1-21, ll 15-35; T 1-37 to T 1-38.

[11] T 1-21, ll 35-45; T 1-41 to T 1-42

[12] T 1-27.

[13] T 2-38 to T 2-29.

[14] There was an attempt to lead evidence that the grate in question had been repaired in August 2018, but that failed under cross examination. See T 2-46 to T 2-51. Even if I am wrong in that conclusion, the Regulator still failed to prove the grate could not have collapsed as alleged.

[15] T 2-46, ll 15-25.

[16] T 2-51 to T 2-54.

[17] T 1-45.

[18] T 1-42 to T 1-50.

[19] Some evidence was lead about an earlier incident report relating to a drain grate, but Mr Dwyer was clear he was not confused. See T 1-47 to T 1-48. See also T 2-50 to T 2-51.

[20] T 1-22, ll 10-35.

[21] T 1-49.

[22] [2019] QIRC 203, [43]-[55].

[23] Ramsay v Watson (1961) 108 CLR 642, 645.

[24] Holtman v Sampson [1985] Qd R 472, 474.

[25] See Exhibit 1 (Tab 9).

[26] See Exhibit 1 (Tab 12).

[27] T 2-15, ll 25-35. *The word 'exacerbate' was not included in the print version of the transcript. Resort was had to the audio of the transcript to identify the missing word.  

[28] Section 32(3)(b) of the WCR Act.

[29] [2025] QIRC 110.

[30] To be fair to the Regulator, for these same reasons, even I was initially sceptical of the matter before having a full understanding of the facts. See discussion with Counsel at  T 1-3 to T 1-9.

[31] Exhibit 1, Tab 12, page 6.

[32] Exhibit 1, Tab 12, page 8.

Close

Editorial Notes

  • Published Case Name:

    Dwyer v Workers' Compensation Regulator

  • Shortened Case Name:

    Dwyer v Workers' Compensation Regulator

  • MNC:

    [2025] QIRC 119

  • Court:

    QIRC

  • Judge(s):

    Dwyer IC

  • Date:

    13 May 2025

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
Austin v Workers' Compensation Regulator [2025] QIRC 110
2 citations
Jump To
Cite 1 - [2025] QIRC 110
Cite 2 - [2025] QIRC 110
Holtman v Sampson [1985] Qd R 472
2 citations
Jump To
Cite 1 - [1985] Qd R 472
Cite 2 - [1985] Qd R 472
Ramsay v Watson (1961) 108 CLR 642
2 citations
Jump To
Cite 1 - (1961) 108 CLR 642
Cite 2 - (1961) 108 CLR 642
Ribeiro v Workers' Compensation Regulator [2019] QIRC 203
1 citation
Jump To
Cite 1 - [2019] QIRC 203
State of Queensland (Queensland Health) v Q-Comp & Coyne [2003] ICQ 9
2 citations
Jump To
Cite 1 - [2003] ICQ 9
Cite 2 - [2003] ICQ 9

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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