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MacDonald v Workers' Compensation Regulator[2025] QIRC 149

MacDonald v Workers' Compensation Regulator[2025] QIRC 149

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

MacDonald v Workers' Compensation Regulator [2025] QIRC 149

PARTIES:

MacDonald, Andrew

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2022/118

PROCEEDING:

Appeal against decision of Workers' Compensation Regulator

DELIVERED ON:

3 June 2025

HEARING DATES:

4 March 2024 to 6 March 2024

SUBMISSIONS:

Appellant's closing submissions: 21 May 2024

Respondent's closing submissions: 31 May 2024

Appellant's closing submissions in reply: 18 June 2024

MEMBER:

Power IC

HEARD AT:

Brisbane

ORDERS:

  1. The appeal is upheld in part.
  2. The decision of the Workers' Compensation Regulator is set aside.
  3. The Appellant sustained a right shoulder injury in accordance with s 32 of the Act.
  4. No other injuries outlined in the Application for Assessment of Permanent Impairment were sustained by the Appellant in accordance with s 32 of the Act.
  5. Failing agreement on costs, to be the subject of a further application to the Commission within 21 days.

CATCHWORDS:

WORKERS' COMPENSATION – ENTITLEMENT TO COMPENSATION – whether injury was suffered pursuant to s 32 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) – whether appellant suffered a personal injury which arose out of, or in the course of, his employment – whether employment was a significant contributing factor – appeal upheld in part.

LEGISLATION:

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

CASES:

Briffa v Q-COMP (2005) 180 QGIG 70

Burton v Workers' Compensation Regulator [2021] QIRC 437

Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45

McDonald v Q-COMP (No. 2) (2008) 188 QGIG 180

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

Rossmuller v Q-COMP [2010] ICQ 4

Ward v Q-COMP [2011] ICQ 33

WorkCover Queensland v BHP (Qld) Workers' Compensation Unit [2002] ICQ 24

APPEARANCES:

Mr A. MacDonald, as self-represented Appellant.

Mr C.J. Clark of Counsel, directly instructed by the Respondent.

Reasons for Decision

  1. [1]
    Mr Andrew MacDonald ('the Appellant') appeals a decision of the Workers' Compensation Regulator ('the Respondent') to reject his application for assessment of permanent impairment in accordance with s 550(4) of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ('the Act').
  1. [2]
    Section 132A of the Act provides for an application for an assessment of degree of permanent impairment in circumstances where the worker has not made an application for compensation under s 132 of the Act.
  1. [3]
    Section 132A(7) provides that the insurer may reject the application only if satisfied the worker was not a worker when the injury was sustained or has not sustained an injury.
  1. [4]
    In this matter, WorkCover rejected the Appellant's application on the basis that he did not sustain an injury within the meaning of the Act.
  1. [5]
    The issue to be determined is whether the Appellant suffered a personal injury within the meaning of s 32 of the Act. Section 32 of the 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. 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;
  2. 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;
  2. a disease;
  3. a medical condition, if the condition becomes a personal injury or disease because of 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.

…

  1. [6]
    This appeal to the Commission is by way of a hearing de novo in which the onus of proof falls upon the Appellant.[1] The Commission must be satisfied that the worker has suffered an injury within the meaning of the Act.[2]
  1. [7]
    The Appellant must prove, on the balance of probabilities,[3] that the claim is one for acceptance.
  1. [8]
    After careful consideration of all of the evidence, I find that on the balance of probabilities the Appellant did not suffer injuries within the meaning of the term pursuant to s 32 of the Act, with the exception of an injury to his right shoulder.
  1. [9]
    My reasons follow.

Background

  1. [10]
    The Appellant was, at all times relevant to this appeal, employed as a tanker driver by Boral Resources (Qld) Pty Ltd.
  1. [11]
    The Appellant describes in his Statement of Facts and Contentions ('SOFC') an incident on Saturday, 13 July 2019, in which he descended from the top of his tanker at work, slipped off the ladder, and fell to the ground ('the work incident').
  1. [12]
    Following the incident, the Appellant finished the day at work and when he returned to work on Monday, 15 July 2019, reported the incident to the Boral Operations Manager, Mr Paul Volzke, and Mr Brent Stockwell. The Appellant states that he completed a written Incident Report for Mr Volzke and contends that this report subsequently disappeared.
  1. [13]
    The Appellant attended upon Dr Joshua Scott on 17 July 2019 and contacted WorkCover on 30 July 2019 to report the incident, however, did not file a claim for workers' compensation.
  1. [14]
    The Appellant filed a s 132A application for assessment of permanent impairment on 14 October 2021 with WorkCover, contending that he suffered compensable injuries following the fall from his tanker on 13 July 2019. This application was denied by WorkCover and, after a review decision was sought, the decision to reject the application was confirmed by the Respondent.
  1. [15]
    There is no dispute that the Appellant was a worker within the meaning of s 11 of the Act.
  1. [16]
    The issues to be determined in this matter are the following –
  1. a)
    whether the Appellant suffered an injury;
  1. b)
    if so, whether that injury arose out of or in the course of the Appellant's employment; and
  1. c)
    if the Appellant did suffer an injury that arose out of or in the course of his employment, whether the employment was a significant contributing factor to the injury.

Incident

  1. [17]
    The Appellant gave the following of evidence regarding the work incident –

… Now, I had washed my truck at Geebung a couple of hours earlier. You wouldn't have thought that the undersole of my boot was still wet but obviously it was and my right foot slipped around the 1.8 metre mark and the fall started but I quickly reached out with good reflexes. Quickly reached out and grabbed the – one of the ladder rungs and it's steel but because the – because the foot had slipped, my arm was taking the full weight of my body, 112 kilos, and it swung my body out to the right and it pushed this side of the – this side of the hand into the steel upright of the ladder and that's where I got the abrasions that are noted in evidence and that became really painful but also the weight and velocity made my hand, like, I had to let go, and so the fall continued but now it was a left-sided and so when I hit the ground, and this took time to – to work out because after a fall, you don't – it was so quick and I was a bit dazed and what have you, don't really try and work out what happened. I just sort of thought, you know, you just fell from up here. I felt really stupid and – but that's an accident. So when I hit the ground, I guess my – around my hip hit first, so then my shoulder – I remember my shoulder crashing into the bitumen and my head – when my ear was about an inch from the ground, I heard my hardhat skittle across the bitumen at speed and I recognise – my brain recognised that my feet were up in the air, so it was an opportunity to do a para roll, so I engaged my stomach, quad muscles, went into a para roll and because it was that left-sided fall, I ended up at the left rear of the – the tanker, about two metres back, just here, and so I could see down the side of the tanker … I was dazed and shaken, but I thought, you know there's nobody here. I'm just going to have to get on with it, so I – I thought I'll just continue the work and – and just watch for more serious symptoms.[4]

  1. [18]
    The Respondent submits that the Appellant has sought to compile a narrative that his injuries suffered in the fall were much worse than what the contemporaneous records fairly disclose. The Respondent submits that "in this regard, the Appellant points to a left shoulder injury, neck pain and lower back pain."
  1. [19]
    Further, the Respondent submits that whilst not being able to point to any bruising, trauma, or haematoma to his skull, the Appellant seeks to make a case for some sort of injury to his skull which in turn has led to a 'traumatic brain injury'.[5]
  1. [20]
    The Appellant submits that he produced a handwritten Incident Report as requested by Mr Volzke on 15 July 2019 and that in the following two days Mr Volzke produced two different versions of the fall.
  1. [21]
    The account of the fall as evidenced by the contemporaneous documents is not significantly different from the account provided by the Appellant. Mr Volzke described the fall as 'controlled slip down the ladder' in his report on 13 July 2019,[6] and as a 'semi-controlled descent to the ground' in his report of 18 July 2019.[7] The description of a 'semi-controlled descent to the ground' is in my view more accurate on the basis that it is consistent with the Appellant's description of the incident.
  1. [22]
    The Appellant contends that Mr Volzke destroyed the Appellant's incident report in order to conceal the true nature of his injuries. I find this allegation to be inherently unlikely as the assessment of the Appellant's injuries relied upon medical evidence and the Appellant's own statements as to his symptoms. Mr Volzke's description of a semi-controlled descent is also similar to the description provided by the Appellant. If Mr Volzke had intentionally destroyed the incident report, one would expect a significantly different description of the incident to be provided.
  1. [23]
    The Appellant takes issue with the failure of Boral to retain his original handwritten incident report, contending that this report is the only viable evidence revealing the true nature of the work incident. In circumstances where I accept the Appellant's evidence regarding the work incident and am of the view that it is not significantly different to that of Mr Volzke's report of 18 July 2019, the original incident report is unlikely to have assisted in the determination of this matter.
  1. [24]
    On 23 October 2023, Sunstate Cement produced a letter to the Respondent confirming the content of relevant CCTV footage of the work incident.[8] The letter indicated that the CCTV footage was only retained for a maximum of a few weeks and was no longer in existence. The letter confirmed that Mr Volzke and Mr Michael Fullelove had searched through the CCTV footage on 15 July 2019 and noted that visibility of the alleged incident was obscured due to the angle of the camera. The letter confirmed that whilst the actual fall was not recorded on CCTV footage and the visibility of the driver was completely obscured, the footage captured a helmet rolling on the ground near the truck.

Disclosure of symptoms following incident

  1. [25]
    On 17 July 2019, the Appellant disclosed symptoms to Dr Scott who diagnosed an Upper Respiratory Tract Infection ('URTI').
  1. [26]
    The Appellant gave the following evidence –

… those left-sided injuries weren't obvious at the start and I've always declared that.

…

No, these are generalised pains in the joints and … you don't have term of reference to the dizziness, the shakiness, the aching joints. I don't know what that meant. That's – that's why he diagnosed a flu is because they're flu symptoms.[9]

  1. [27]
    The Appellant accepts that there was no bruising to his left hip or shoulder following the work incident.[10] He also accepts that there was no bruising to the left side of his head after the work incident, although states that a lump on his head developed months later.[11]
  1. [28]
    On 18 July 2019, the Appellant discussed his symptoms with Ms Mullins, Work Fit Advisor at Boral. Ms Mullins' report notes that the Appellant had hurt his right shoulder in the work fall.
  1. [29]
    In cross-examination, Counsel put to the Appellant that at the point of this conversation with Ms Mullins, some 5 days following the work incident, he would have experienced symptoms to his left shoulder, hip, or knee. The Appellant gave evidence that his whole body ached and that it was not a specific description, rather it was like the aching joints he described to Dr Scott on 17 July 2019.[12]
  1. [30]
    In the WorkCover Queensland Communications Report ('the WC Report'), Ms Savita Requi, Customer Advisor, notes that the Appellant described the incident on 30 July 2019 as follows:

I was on top of my tanker and disconnected the harness. I was coming down the ladder, slipped on one of the rungs due to moisture on shoes. Free fall for a bit and grabbed railing with my right arm. Tore flesh of finger on right hand and jerked shoulder when my full weight came on to my shoulder. RM is limited.[13]

  1. [31]
    The WC Report records the Appellant's answer to Ms Requi's question as to the injury sustained as 'right shoulder strain'.[14]
  1. [32]
    The Appellant gave evidence that the responses outlined in the WC Report were accurate and that he did not tell Ms Requi about the intermittent lower back and neck symptoms he was suffering at this time because he wanted to get on with his work, he did not want to become a liability, and that he did not "have any terms of reference" in relation to the injury.[15]
  1. [33]
    In re-examination, the Appellant stated that Ms Requi did not read the worker's statement to him or attach a separate file note as required by question 19 on the document. The Appellant states that had that occurred, he would have corrected the report that stated he had a 'controlled slip' down the ladder. The Appellant stated that he felt under duress and was physically and mentally stressed after a full day's work when he spoke with Ms Requi.[16]
  1. [34]
    Regarding the onset of neck pain, the Appellant gave somewhat contradictory evidence, stating that he began to experience 'dedicated and obvious' neck pain in 2021,[17] and also that he experienced muscular neck pain 'most likely straight away'.[18]
  1. [35]
    In response to the Respondent's Counsel asking if the Appellant felt pain in the mid-back and thoracic spine from 13 July 2019, the Appellant stated that he did not have a recollection of when that started and that he was not including that in the claim.[19]
  1. [36]
    The Appellant attended on Dr Gilbert on 22 April 2020. Dr Gilbert's medical notes record that the Appellant had started getting aches and pains in the muscles on 'Friday last week' and had stayed at home over the weekend to rest.
  1. [37]
    In cross-examination the Appellant agreed that Dr Gilbert's note was accurate. In response to the contention that this note does not sit with his claims that he had had aches and pains in the muscles intermittently since 13 July 2019, the Appellant stated that he did not know that he should have noted dates and made reference to the fall because the matter was not litigious in nature.[20]
  1. [38]
    The Appellant gave evidence that his left-sided pain affected him intermittently following the work incident, with the pain becoming more obvious and permanent six months later by February 2020.[21]
  1. [39]
    In cross-examination, the Appellant stated that he had intermittent aches and pains since 13 July 2019 up to October 2020 and then every minute of every day since.[22]

Consideration

  1. [40]
    The Appellant's account of the work incident was that as he slipped on the wet foothold he grabbed the ladder with his right hand before falling to the bitumen. The Appellant states that when he landed, his left side made contact with the ground and his left ear was close to the ground after his hard hat skittled across the bitumen.
  1. [41]
    The Appellant presented as an honest witness, and I see no reason that his evidence regarding the nature of the fall should not be accepted.
  1. [42]
    The Appellant's Application for Assessment of Permanent Impairment ('the Application') outlined the following injuries –

Part of body injured (e.g. lower back)Nature of injury/ies (e.g. strain, fracture, crush, burn)

Left shoulder Injury

Cervical Spine Bulging discs at C4/5, C5/6 and C6.7

Cervical Spine Foraminal narrowing at C6/7

Cervical Spine Compression of left C7 nerve

Thoracic Spine  Schmorls node indentation of upper endplate of T8

Lumbar Spine Annular disc bulges at L4/5 and L5/S1

Mind Psychiatric injuries[23]

  1. [43]
    The Appellant also outlined an injury to his right shoulder in his SOFC.
  1. [44]
    The Appellant submits that his current injuries arose out of or in the course of his employment as evidenced by his account of the fall, the CCTV footage, and his reporting of symptoms to Dr Scott four days after the event. He contends that his employment was a significant contributing factor to the injuries as none of the symptoms described to Dr Scott on 17 July 2019 were suffered by the Appellant prior to the work incident on 13 July 2019. The Appellant states that all of the symptoms that developed over time were a direct result of the incident. Further, the Appellant contends that he has sustained psychiatric symptoms secondary to the injuries sustained in the work incident.
  1. [45]
    The Respondent submits that the overwhelming weight of both the contemporaneous records and expert medical opinion does not establish any injuries arising from the work incident.

Dr Cleaver

  1. [46]
    The Appellant submits that Dr Cleaver's diagnoses of his condition at an assessment on 27 September 2022 pertained to multiple injury sites and that, on the balance of probabilities, the Appellant sustained the confirmed diagnoses as a result of the work incident.
  1. [47]
    In the letter of instruction to Dr Cleaver dated 11 September 2022, the Appellant outlines the following list of injuries-

List of Injuries : Persistent dizziness, brain fog, tinnitus and declining cognitive function since the fall

Initial right shoulder pain has developed into encapsulation.

Left frozen shoulder. (Surgery for release on 10.05.2021)

Cervical damage/degeneration.

Lumbosacral damage/degeneration.

Schmorl's node at T8.

Calcified Cephalohaematoma (44mm by 11mm) on left parietal arca

Constant headaches.

Central Pain Syndrome – constant pain throughout the body. Hips, knees, ankles, wrists, knuckles, head, neck, back, whole spine but more at the cervical and lumbosacral regions. Neural pain intermittently.[24]

  1. [48]
    Dr Cleaver outlined the following opinion in his report –

Diagnoses confirmed at assessment today are:

  1. Aggravation to degenerative changes in the left shoulder with subsequent production of adhesive capsulitis - treated surgically;
  2. Aggravation to cervical spondylosis at C6-7 with intermittent left-sided C7 radiculopathy;
  3. Right-sided L5-S1 disc protrusion; and
  4. Aggravation to lumbar spondylosis at L4-5 and L5-S1.

Diagnoses that are suspected but not confirmed are traumatic brain injury and cervicogenic headaches.

In the self-typed Letter of Instruction, Mr MacDonald lists as injuries a Schmorl's node at T8, a right shoulder encapsulation in progress, a central pain syndrome, and a psychological injury.

I was unable to find any signs of injury either clinical or radiographic in the right shoulder. A Schmorl's node is not an injury. Diagnosing a psychological injury is outside of my area of expertise, and a central pain syndrome is entirely feasible but would need to be confirmed with documentation from his pain specialist, and the Brief was unhelpful in that regard.

With respect to the questions asked in the Letter of Instruction Mr MacDonald was counselled that as a result of some of the questions being in many respects leading, non-legal, assumptive of a favourable response and in some cases non-sensical, there may be a level of dissatisfaction upon receipt. After demonstrating why he agreed with my comments.

1. In your view, what is the probability Andrew MacDonald sustained his injuries in this subject incident?

On balance of probability, Mr MacDonald sustained the confirmed diagnosis in the subject incident.

2. Given the ergonomics of the accident, what injuries would be most consistent with the stated fall and impact?

The diagnoses that I have confirmed at assessment today are consistent with the stated mechanism of injury.

3. Would the symptoms observed by Dr Joshua Scott on 17.07.2019 (Dizziness, aching joints, lethargy, feeling hot and unwell in the past 24 hours) be consistent with trauma caused by the stated fall?

In my opinion the stated symptoms of dizziness, aching joints, lethargy, feeling hot and unwell the past 24 hours are not consistent with trauma or the stated mechanism of injury.

4. Dizziness, aching joints, lethargy, feeling hot and unwell in past 24 hours. Would any of these symptoms, following a significant fall, even remotely suggest or support argument for a head trauma, unseen spinal trauma, shoulder trauma, hip damage, or ankle damage?

It is conceivable that the symptoms of dizziness, aching joints, lethargy, feeling hot and unwell for the past 24 hours could be symptoms of a traumatic brain injury. This would need to be confirmed by an independent medical examination from a neuropsychologist.[25]

  1. [49]
    The reliability of evidence provided by medical witnesses is dependent on the provision of accurate information regarding the relevant incident and the history of symptoms. In cross‑examination, Dr Cleaver conceded that the Appellant had requested that he amend his initial report. The original report of 13 October 2022 outlined the following history –

[The Appellant] returned to work on Monday experiencing pain in multiple body regions including his neck, lower back, left leg and head. By Tuesday he was worse, and he consulted with his general practitioner on Wednesday.[26]

  1. [50]
    In the report of Dr Cleaver dated 20 February 2023, the above sentence was excluded.
  1. [51]
    The Appellant submits that he requested that Dr Cleaver alter the report to "address an erroneous overstatement of the severity of the appellant's symptoms on Monday 15 July 2019...".[27]
  1. [52]
    The Appellant contends that the object of the alteration was to 'reflect the truth', and that the symptoms actually occurred but were out of chronological sequence.[28]
  1. [53]
    Dr Cleaver gave evidence confirming that the information in the removed passage had been given to him by the Appellant and that it was subsequently deleted at the Appellant's request.[29]
  1. [54]
    Dr Cleaver agreed that the deleted passage contained information directly related to the issue of the chronological relationship and was 'relied upon in that respect'.[30] In cross-examination Dr Cleaver gave evidence confirming that the chronological relationship between any injury and event was an important facet of his assessment of the Appellant.[31]
  1. [55]
    The removed passage is not consistent with the contemporaneous records of the Appellant's symptoms. I do not believe that the Appellant was intentionally dishonest when he provided the information contained in the removed passage to Dr Cleaver, and his request to remove the passage indicates that he was aware it was inaccurate. On the Appellant's own evidence, he requested that the passage be removed to ensure the report reflected "the truth".[32]
  1. [56]
    The difficulty for the Appellant, however, is that Dr Cleaver had already relied upon that information when forming his opinion about the Appellant's injuries. Dr Cleaver clearly states in his report –

It is my understanding from taking a history from Mr MacDonald that symptoms of neck pain and back pain appeared very soon after the stated date of injury.[33]

  1. [57]
    The evidence of Dr Cleaver is significantly different to those of the other medical practitioners in this matter. In Burton v Workers' Compensation Regulator,[34] Deputy President Merrell considered the approaches to considering competing medical evidence -

In Ribeiro v Workers' Compensation Regulator, the established approaches where there is competing medical evidence about whether there is a casual connection between an injury and a worker's employment were summarised. Relevantly, they are –

  • the primary duty of a tribunal is to find ultimate facts, and so far as is reasonably possible to do so, to look not merely to the expertise of the expert witnesses, but to examine the substance of the opinion expressed; and in doing so, the tribunal may not accept the opinion of an expert witness, and in cases where the experts differ, the tribunal will 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;
  • a qualified medical practitioner may, as an expert, express an opinion as to the nature and cause, or probable cause of an injury, but it is for the tribunal to weigh and determine the probabilities, and in doing so, the tribunal may be assisted by the medical evidence; however, that task is for the tribunal not the witnesses and the tribunal must ask itself whether, on the whole of the evidence, it is satisfied on the balance of probabilities of the fact;
  • whether a worker has suffered an injury within the meaning of the Act is a question of fact which is not necessarily resolved by acceptance or rejection of medical testimony. Thus, the tribunal may consider the medical evidence and by a course of reasoning which, combined with common sense and the application of logic to physiological facts infer, on the balance of probabilities, a causal connection with an injury;
  • in resolving disputes between experts, it is simply not a matter of adding up the witnesses on each side or by the mere perusal of a variety of documentary medical reports;
  • when faced with competing opinions, which are both supported by sound reasoning, the tribunal's function is to decide the issue at hand and that may require the tribunal to accept one opinion over the other, and in doing so the tribunal would not normally substitute its opinion on the medical diagnosis for that of the experts and give scientific medical reasons for doing so; the tribunals persuasion to prefer one opinion over another may well be based on factors such as the expert's opinion was tested under cross examination, or that the opinion was given by a person eminent in his or her field, or that the opinion was supported by clinical observations; and
  • if the factual underpinning of the report is disturbed by for example, the rejection of the tribunal of parts of that underpinning, then it follows that the report itself is weakened to that extent.

[citations omitted][35]

  1. [58]
    The consequence of Dr Cleaver relying upon an inaccurate history regarding the chronology of symptoms in providing his opinion, i.e. the factual underpinning, is that his report cannot reasonably be considered reliable in relation to causation. Accordingly, I afford greater weight to the medical evidence of the other medical practitioners.

Did the injuries arise out of or in the course of the Appellant's employment and was the employment a significant contributing factor to the injuries?

Right Shoulder

  1. [59]
    The Appellant contends that he suffered an injury to his right shoulder as a consequence of the workplace incident.
  1. [60]
    The Application lodged by the Appellant's solicitors on 11 October 2021 outlined the following injuries alleged to have been sustained because of the incident –

Part of body injured (e.g. lower back) Nature of injury/ies (e.g. strain, fracture, crush, burn)

Left shoulder Injury

Cervical Spine Bulging discs at C4/5, C5/6 and C6.7

Cervical Spine Foraminal narrowing at C6/7

Cervical Spine Compression of left C7 nerve

Thoracic Spine  Schmorls node indentation of upper endplate of T8

Lumbar Spine Annular disc bulges at L4/5 and L5/S1

Mind Psychiatric injuries[36]

  1. [61]
    The Respondent submits that it is inconceivable that the solicitors who compiled the Application would fail to include a right shoulder condition if there was credible evidence of such a condition causally linked to the fall on 13 July 2019.
  1. [62]
    It is unclear why the Appellant's right shoulder condition was not included; however, I do not accept that it was because of the absence of credible evidence. The contemporaneous evidence from both the employer and Dr Scott was that the Appellant had suffered a strain to his right shoulder.
  1. [63]
    Medical evidence rejecting the existence of a right shoulder injury provided in the months and years after the incident is of limited use in circumstances where the contemporaneous evidence indicates that the injury had resolved relatively soon after the incident.
  1. [64]
    Although Dr Cleaver outlined in his report of 11 September 2022 that he was unable to find any signs of injury either clinical or radiographic in the right shoulder, this does not indicate that an injury was not sustained on 13 July 2019, particularly in circumstances where the medical evidence was that the injury had resolved after approximately five weeks.
  1. [65]
    I accept the Appellant's submission that all accounts of the work incident mention the Appellant grabbing hold of the ladder rung and momentarily holding himself up with his right hand prior to falling to the ground.
  1. [66]
    The medical notes of Dr Scott, general practitioner, dated 17 July 2019 outlined that the Appellant had been unwell for 24 hours and was experiencing 'lethargy, aching joints, mild dizziness, feeling hot, abrasion to the outside of the 5th finger',[37] noting that the Appellant had fallen from his truck on the Saturday and had some right shoulder pain.
  1. [67]
    Following the Appellant's consultation with Dr Scott on 22 July 2019, recommended workplace restrictions were provided to Ms Janet Mullins from the Boral Injury Management Team to allow the Appellant's right shoulder to heal. The Boral Recover at Work Plan commencing 24 July 2019[38] refers to a right shoulder strain and was signed by the Appellant, Mr Volzke, Ms Mullins, and Dr Scott.
  1. [68]
    In the Boral Sims Net phone notes dated 6 August 2019,[39] Mr Volzke notes that he has spoken to the Appellant who states that 'he is almost completely healed with only very minor pain if he elevates his arm to height.'[40]
  1. [69]
    The Appellant confirmed in cross-examination that there is no mention of any neck or lower back symptoms and the only focus of the document is on a right shoulder strain.[41]
  1. [70]
    In the Boral Recover at Work Plan dated 24 July 2019,[42] the diagnosis is stated as 'R shoulder strain' with restrictions outlined as follows –

No lifting/pushing/pulling above shoulder height

No lifting/pushing/pulling below shoulder height over 22.5kg

No sustained or repetitive overhead reaching or working

  1. [71]
    The Boral Simms note dated 22 August 2019[43] includes a note from Mr Volzke stating that the Appellant was feeling much better so had not returned to the doctor. Ms Mullins notes that '…even though [the Appellant] is feeling better, it is a Boral requirement that he be reviewed…' to determine whether light duties should continue.
  1. [72]
    The Appellant agreed in evidence with the contents of the Boral Simms note dated 11 September 2019,[44] which contains the following note from Ms Mullins to Mr Volzke –

Have spoken with Andrew Macdonald to follow up with his shoulder.

His GP wanted him to have an US scan done but Andrew hasn't had this done yet.

Andrew reports his should is absolutely fine and he was even able to move house recently (by himself) without any issues or concerns in the shoulder.

…

  1. [73]
    The Appellant gave evidence that his right shoulder was 'fine' by the 11 September 2019[45] and that he did not mention having neck or lower back pain to Ms Mullins during this conversation because the symptoms were 'intermittent'.[46]
  1. [74]
    Following a number of weeks of the Appellant working on restricted duties, Dr Scott's medical notes state the following –

symptoms have improved - no symtpoms [sic] at all at work doing full duties, no symptoms doing gym work either

doing exercises[47]

  1. [75]
    The Appellant contends that he continued to have symptoms intermittently after returning to normal duties at work. The Appellant gave evidence that he did not tell his general practitioner about his ongoing right shoulder problems or neck and lower back problems because he needed to 'work for a living',[48] stating that he wanted to go back to work. He also stated that he was trying to manage the symptoms as they were intermittent and he hoped they did not return.
  1. [76]
    There is no doubt that the Appellant suffered symptoms related to pain in his right shoulder injury soon after the incident at work. The clinical notes of Dr Scott of 17 July 2019 and 22 July 2019 indicate the Appellant was suffering from right shoulder pain in the days and weeks following the work injury.
  1. [77]
    The medical evidence also indicates that the Appellant's right shoulder pain resolved itself within a number of weeks and had resolved entirely within approximately five weeks of the incident. However, the Commission is only required to determine if an injury has occurred pursuant to s 32 of the WCR Act, not when or if the injury has resolved.
  1. [78]
    The Appellant has discharged his onus to demonstrate on the balance of probabilities that he sustained a personal injury, that is a sudden or identifiable physiological change[49] to his right shoulder. As determined by President Hall in Ward v Q-COMP,[50] an 'injury' can be equated to activation of pain.[51]
  1. [79]
    I am satisfied that the documentary evidence of Boral, the medical notes of Dr Scott, and the Appellant's own evidence demonstrate that the Appellant's right shoulder injury arose out of or in the course of the Appellant's employment and that employment was a significant contributing factor to his right shoulder injury.

Left Shoulder

  1. [80]
    The Appellant contends that he sustained an injury to his left shoulder in the work incident on 13 July 2019.
  1. [81]
    It appears that the first time the Appellant disclosed symptoms in his left shoulder was to Dr Scott on 3 February 2020, some six months after the work incident. Dr Scott's medical notes outline the following –

…

also, rotator cuff injury previously on the left shoulder sustained whilst working in the military 30 years ago

No injury to the left shoulder since then whatsoever

Has started getting pain again in the left shoulder

Suggested in the first instance, to talk to DVA about getting claim re-opened, may need independent specialist medical assessment given time frame etc. to review it wmyself [sic] again regarding this if needed[52]

  1. [82]
    The Appellant gave evidence that the statement 'no injury to the left shoulder since then whatsoever' was intended to mean that there was no other injury between the injury many years ago in the military and the work incident of the 13th of July 2019.[53] In cross-examination, the Appellant confirmed that he did not tell Dr Scott that he had injured his left shoulder on the 13th of July 2019.[54]
  1. [83]
    On 6 May 2020, Dr Gilbert's medical notes record a history of the Appellant's left shoulder rotator cuff injury in 1989, including a detailed history of the injury occurring whilst playing rugby in the Army and requiring a cortisone injection.[55] Dr Gilbert notes that the Appellant's left shoulder pain eventually settled in time but has returned as niggles in the previous five months with the pain now constant. The medical notes further state that the Appellant has had to alter his exercises at the gym in February 2020 and is suffering secondary headaches.
  1. [84]
    In cross-examination, it was put to the Appellant that given the importance which he has ascribed to the work incident of 13 July 2019, one might reasonably expect there to be some mention of that work event in the 'fairly elaborate history' given to Dr Gilbert.[56] The Appellant gave evidence that he did not mention the work incident as he 'held no awareness at the time' and that he had suffered 'generalised pain' across his body following the work incident.[57]
  1. [85]
    On 14 April 2021, Dr Gilbert's medical notes outline the Appellant's 'ongoing difficulty' with his left shoulder and again note that he has previously had a rugby injury.[58] There is no reference to the incident of 13 July 2019.
  1. [86]
    The Appellant received an ultrasound guided left subdeltoid bursal injection on 27 May 2020 and on 14 April 2021 an MR and Xray of the left shoulder revealed calcific tendinosis, full thickness tearing in tendons, bursitis, a degenerative acromioclavicular joint, and adhesive capsulitis.
  1. [87]
    Dr Cutbush, an orthopaedic surgeon specialising in shoulder conditions, first saw the Appellant on 6 May 2021 in respect of his left shoulder. Dr Cutbush's report dated 7 May 2021 does not mention symptoms arising from the work incident of 13 July 2019.
  1. [88]
    Dr Cutbush's report outlines the following history of the Appellant's left shoulder symptoms –

He describes having a rotator cuff injury back in 1989. He was in the army. He was playing rugby and injured it in a tackle with the diagnosis of a rotator cuff injury. He had a cortisone injection and then went on to play the Grand Final. In the Grand Final he describes suffering from a dead arm. He must have had a significant hit to the shoulder but he doesn't really recall it. The shoulder came good and for 30 years he has had no trouble with the shoulder until the last 6 months or so.[59]

  1. [89]
    I accept the Respondent's submission that if the Appellant had injured his left shoulder on 13 July 2019 and experienced symptoms thereafter that one might reasonably expect that a history in those terms would have been provided to Dr Cutbush.
  1. [90]
    Dr Cutbush outlined the information provided by the Appellant on a form completed by patients coming to his practice. Dr Cutbush gave evidence that in response to the question "Have you suffered an injury?', the Appellant wrote - '1989 – rotator cuff; left injury; rugby game' and then '2019 – fell from ladder; left arm grabbed the ladder' and then 'symptoms arose about six months ago'.[60]
  1. [91]
    The information provided by the Appellant as outlined in the above paragraph indicates that it was the Appellant's left arm that grabbed the ladder, which is inconsistent with all other medical and contemporaneous evidence, and that symptoms did not arise until late 2020, some eighteen months after the work incident.
  1. [92]
    On 10 May 2021, Dr Cutbush performed surgery on the Appellant's left shoulder for an adhesive capsulitis (frozen shoulder).
  1. [93]
    Dr Cutbush gave evidence that in his view the frozen shoulder was not related to the rugby injury.[61]
  1. [94]
    In response to a question as to the reasons that frozen shoulders occur, Dr Cutbush gave the following evidence –

[Appellant] Thank you. And – and you also say, while it's not generally understood why frozen shoulder occurs, there's a couple of different reasons why, and that – one of those is trauma?

[Dr Cutbush] Yes. A – much of it occurs just spontaneously. People describe waking up in the morning with a sore shoulder. That's quite common, particularly when people are diabetics. It does occur, also, in relation to trauma, so an injury, and it will also occur in relation to surgery because the body sees surgery as an injury.[62]

  1. [95]
    Dr Cleaver opines in his report that 'a frozen shoulder typically appears many months after an injury'.[63] I afford greater weight to the evidence of Dr Cutbush on the basis of his speciality as an orthopaedic surgeon primarily focusing upon shoulder conditions. As outlined above, Dr Cutbush's evidence is that a frozen shoulder can occur following trauma, however, it can also occur spontaneously.
  1. [96]
    Dr Parr's evidence is that the Appellant's left arm symptoms are consistent with a C7 Radiculopathy, however, he does not attribute this to the work incident.
  1. [97]
    There is no contemporaneous evidence that the Appellant injured his left shoulder in the work incident of 13 July 2019. The Appellant did not report symptoms of left shoulder pain until months after the work incident occurred. When the Appellant did report left shoulder symptoms, he did not raise the work incident as a possible cause. It can be inferred from this lack of contemporaneous reporting that Appellant's symptoms did not arise as a consequence of the work incident.
  1. [98]
    In addition, the medical evidence does not support a finding that the Appellant's left shoulder condition was a consequence of the work incident.
  1. [99]
    On the balance of probabilities, the evidence does not support a determination that the Appellant's left shoulder condition arose out of or in the course of his employment or that employment was a significant contributing factor to the injury.

Spine

  1. [100]
    As outlined in the Application, the Appellant contends that he sustained injuries to his cervical, thoracic, and lumbar spine.
  1. [101]
    Dr Parr, orthopaedic spinal surgeon, produced a report of 27 September 2021 stating that the Appellant has C7 radiculopathy with respect to his left arm, degeneration in his cervical and lumbar spine, and dizziness and headaches.
  1. [102]
    Dr Parr arranged for the Appellant to have a whole spine MRI on 28 September 2021. Dr Robert Clarke considered the MRI and determined the following defects existed in the Appellant's cervical spine – bulges of C4/5, C5/6 and C6/7, bilateral C6/7 foraminal narrowing, and compression of the C7 nerve.[64]
  1. [103]
    Dr Parr determined in his report that the Appellant's neck pain was 'likely coming from multiple levels' and refers to degeneration of C5/6 and C6/7 as the likely culprit together with some facetogenic pain.[65]
  1. [104]
    Dr Parr's evidence was that he was unable to attribute any spine injury to the work incident of 13 July 2019.
  1. [105]
    Dr Cleaver's report indicates that the Appellant has sustained an aggravation to cervical Spondylosis at C6-7 with intermittent left sided C7 radiculopathy; right-sided L5-S1 disc protrusion; and aggravation to lumbar Spondylosis at L4-5 and L5-S1.
  1. [106]
    The MRI performed on the Appellant's spine on 28 September 2021 by Dr Robert Clarke indicated the existence of a Schmorl's node indentation of the upper end of T8 (thoracic spine). A Schmorl's node is asymptomatic and, as noted by Dr Cleaver, is not considered an injury.
  1. [107]
    The medical evidence does not support a conclusion that the existence of a Schmorl's node on the upper-end plate of T8 was a result of the work incident. Accordingly, I am unable to conclude the Appellant's thoracic spine condition arose out of his employment or that employment was a significant contributing factor.
  1. [108]
    In Dr Parr's report to the Appellant's general practitioner, Dr Gilbert, on 27 September 2021, he states the following in relation to the Appellant's cervical and lumbar spine areas –

…

Andrew is a lovely 56 year old gentleman who on the 13th July 2019 had a fall off a tanker 1.5 m. He felt he got away with it with no injuries but over the next period of time he had increasing issues.

…

I have been through his meaning of dizziness and there is no spine reason why he is dizzy and I will leave this in your hands if he requires further investigation. In terms of his neck pain, his neck pain is likely coming from multiple levels but degeneration of C5/6 and C6/7 is the likely culprit with some facetogenic pain.

…

In his lumbar spine, his low back pain will be caused by degeneration of multiple levels.[66]

…

  1. [109]
    On 13 October 2021 Dr Parr arranged for the Appellant to receive cervical spine facet joint injections to address continuous pain and dizziness.
  1. [110]
    Dr Parr provided a report to WorkCover after examining the whole spine MRI scan stating the following -

I am unable to attribute an [sic] spine injury to the fall 13/7/2019.[67]

  1. [111]
    When questioned as to why he was unable to attribute a spine injury to the work fall, Dr Parr gave the following evidence–

So Mr Macdonald's fall was in July 2019, and I first consulted him in September 2021. I mean, there is a – a – quite a large time gap between there. And so I mean, based on a time delay, it is very, very difficult to actually attribute the spinal injury to that – to that mechanism. Secondly, his pain is very diffuse. It's neck, thoracic, lumbar pain, with the main thing being dizziness. And I don't have on – imaging, being MRI scans but also SPECT scan, which is a nuclear medicine scan, which was March 2022. And so this is in hindsight after my report. There is no focal area of injury that I could reliably attribute to the accident in question.[68]

  1. [112]
    The Appellant submits that Dr Parr's testimony confirms trauma as a possible cause for degenerative spinal disease and that spinal degeneration due to trauma will be centred around the injury. The full context of Dr Parr's testimony is as follows –

[Appellant] Can I ask what the typical causes of these conditions or injuries, whatever that may be – what the typical causes are, in your experience?

[Dr Parr] So the number 1 cause is genetics for C5-6/C6-7, as well as L4-5 and L5-S1. There's twin studies that look at degenerative disease in identical twins. Two twins – they'll either both get arthritis, or they will both not get arthritis, independent of what they do from a work point of view. So that would be the number one cause. The second cause would be age-related degenerative changes, and there's studies that look at patients who have no symptoms, and then, I found on an MRI scan, X amount of patients have degeneration by certain ages, and the number that I throw out there, which is an approximate number, is about 50 per cent of people at age 50 without symptoms. So they're the two most common reasons.

[Appellant] Okay. Are there any others?

[Dr Parr] So definitely. You know, you can have traumatic. You have infective. You can have tumour. You can have vascular causes. And then some people, say, with a disc protrusion, may get constipated, and it happens. They might sneeze. There is a myriad of causes.[69] 

  1. [113]
    Dr Parr gave evidence that the findings in the Appellant's cervical and lumbar spine areas were the result of constitutional age-related degenerative change.
  1. [114]
    On the basis that the spinal conditions were not attributed to the incident, I find that any injury in the Appellant’s spine did not arise out of the Appellant's employment, and employment was not a significant contributing factor to the injury.

Head Injury

  1. [115]
    The Appellant contends that he sustained an injury to his head in the work incident which resulted in ongoing symptoms involving dizziness.
  1. [116]
    The Appellant gave evidence that he recalls from the work incident that his ear was 'just an inch from ground' and hearing his hardhat skittling across the bitumen.[70] The evidence outlined in the Sunstate Concrete review of the CCTV confirms that the hardhat was seen moving across the bitumen in the manner described by the Appellant.
  1. [117]
    A number of medical practitioners indicated that the Appellant had raised concerns about suffering from dizziness following the incident. The clinical notes of Dr Scott on 15 July 2019 outline symptoms of the Appellant suffering from mild dizziness before diagnosing the Appellant as having an upper respiratory tract infection. Dr Scott noted that the Appellant had fallen from a truck four days prior and had sustained an abrasion to his finger and right shoulder pain.
  1. [118]
    It is in my view unlikely that a diagnosis made by Dr Scott of an upper respiratory tract infection can reasonably be considered as a misdiagnosis of a "brain trauma injury".[71]
  1. [119]
    Dr John Yi's clinical notes of 16 December 2019 state that the Appellant suffered dizziness, noting that these symptoms were now less frequent.[72]
  1. [120]
    Dr Damien Gilbert's clinical notes of 22 April 2020 state that the Appellant has 'disequilibrium – not vertigo and not presyncopal'.[73]
  1. [121]
    Dr O'Neill completed a work capacity certificate on 14 October 2021 indicating that the Appellant was suffering from dizziness.[74]
  1. [122]
    The Appellant gave evidence that his dizziness led to Dr Debra Munro providing a medical certificate on 12 July 2021 stating that he had a medical condition and was unfit to drive.[75]
  1. [123]
    Although not a medical opinion, Ms Judy Barwick, social worker, gave evidence that the Appellant mentioned dizziness numerous times during their counselling sessions, confirming the ongoing nature of these symptoms.[76]
  1. [124]
    Dr Parr noted the Appellant's complaint of dizziness in his report of 27 September 2021 and determined that this symptom is not related to the condition of the Appellant's spine.[77]
  1. [125]
    The Appellant submits that the CCTV vision "placing the appellant on the top of the tanker and obviously descending the ladder and the helmet suddenly appearing to the left of the tanker increases the probability of the appellant's stated fall and sustaining a head trauma in the workplace".[78]
  1. [126]
    The helmet appearing to the left of the tanker supports a conclusion that the helmet fell off the Appellant's head at some point during his descent from the tanker. It cannot be taken as indicating that the Appellant's head made contact with the ground, particularly in the absence of any evidence of grazing or bruising to the head. On the Appellant's own evidence, he does not recall his head hitting the ground. The contemporaneous notes of the incident do not refer to a head injury and the Appellant did not mention a head injury at his medical appointment with Dr Scott following the incident. There is insufficient evidence to establish that the Appellant injured his head in the work incident.
  1. [127]
    The first reference to ‘brain trauma injury’ in the medical evidence appears in the report of Dr Cleaver dated 27 September 2022, over three years following the work incident. Dr Cleaver stated in cross-examination that he understood that the mechanism of injury was that the Appellant had fallen and "banged his head".[79] That description is not consistent with the contemporaneous evidence of the incident or in any evidence in the intervening years. The evidence of the Appellant, Mr Volzke, and Dr Scott does not refer to the Appellant 'banging' his head. Dr Cleaver opined that a mild brain trauma may have occurred and recommended referral to a neuropsychologist.[80]
  1. [128]
    Dr Basil Mantzioris, Neuropsychiatrist, provided a 'Brief Medical Communication' of three paragraphs dated 9 August 2023 outlining the following –

[The Appellant] presents with chronic pain syndromes and neuropsychiatric phenomenology secondary to fall on the 13/07/2019 whilst he was at work. The fall was from a concerning distance falling to his side. The history of the presenting complaint indicates that the workplace injury resulted in the following diagnoses:

  1. Post-concussion syndrome
  2. Mild – moderate major depressive disorder with prominent anxiety
  3. Generalised anxiety disorder
  4. Chronic spinal pathology with neuropathic pain syndromes which were exacerbated by the fall.[81]
  1. [129]
    The evidence of Dr Mantzioris has significant limitations due to his reliance on a patient history that did not reflect the contemporaneous records. Dr Mantzioris compiled the report approximately four years after the work incident and relied upon the history provided by the Appellant. In cross-examination, Dr Mantzioris referred to physical injuries that are not reflected by the evidence. Dr Mantzioris gave evidence that he relied upon that history in forming his views as to the Appellant suffering mental health conditions. I accept the Respondent's submission that before the Commission can accept the evidence from an expert witness, the factual basis upon which the expert opinion is based must be safely established by credible evidence. That has not occurred in this matter.
  1. [130]
    On the balance of probabilities, the medical evidence does not support a conclusion that the Appellant sustained a head injury related to the work incident or that such a condition arose out of or in the course of his employment. Accordingly, it cannot be determined that employment was a significant contributing factor to any head injury.

Psychiatric injury

  1. [131]
    The Appellant contends that he suffered psychiatric injuries because of the injuries sustained in the work incident.
  1. [132]
    Ms Judi Barwick, social worker, provided a report dated 12 January 2022 outlining the Appellant's account of the impact of his physical symptoms and use of medication. The Appellant's first appointment with Ms Barwick was on 25 September 2021, approximately two years following the work incident.
  1. [133]
    The evidence of Dr Mantzioris was that the Appellant has mild-moderate major depressive disorder with prominent anxiety and a generalised anxiety disorder. Dr Mantzioris' evidence was that these psychiatric injuries were secondary to the Appellant's physical injuries. Dr Mantzioris also states that the Appellant had 'major issues with recognition of the injury at both the employer and WorkCover level contributing to a workplace injury'.[82]
  1. [134]
    It is unclear from Dr Mantzioris' report the extent to which the Appellant's stated issues with recognition of the injury by the employer and WorkCover contributed to the diagnosis of mild-moderate major depressive disorder and generalised anxiety disorder. Section 32(5)(c) of the Act provides that the term 'injury' does not include a psychiatric or psychological disorder arising out of, or in the course of, action by the Regulator or an insurer in connection with the worker's application for compensation.
  1. [135]
    The only physical injury which I have determined arose out of the Appellant's employment was that of the Appellant's right shoulder injury. As noted above, the injury resolved in a matter of weeks following the work incident. It could reasonably be inferred that the psychological symptoms that appeared to arise significantly later were not connected to the right shoulder injury, particularly given the subsequent development of other medical conditions and concerns about the injury recognition process.
  1. [136]
    In circumstances where the psychiatric conditions arose following injuries that did not arise from the Appellant's employment, the Appellant's psychiatric injury is not an injury for the purposes of s 32.

Conclusion

  1. [137]
    After considering the extensive documentary evidence in this matter, I am satisfied that the Appellant suffered minor injuries in the work incident on 13 July 2019. The Appellant's description of the work incident, contemporaneous statements, and medical evidence all indicate that the Appellant suffered an injury to his right shoulder.
  1. [138]
    The contemporaneous records following the work incident, including those of the employer, WorkCover, and medical practitioners, also indicate that the Appellant sustained minor injuries in the work incident. The medical evidence demonstrates that the Appellant sustained a right shoulder strain in the work incident and was placed on restricted duties for a number of weeks thereafter. Within approximately five weeks, the shoulder strain had resolved, and the Appellant had resumed normal duties.
  1. [139]
    The documentary evidence of Ms Mullins at Boral and Ms Requi at WorkCover along with the medical notes of Dr Scott and Dr Gilbert all include information provided by the Appellant soon after the work incident. Whilst I accept the Appellant's evidence that he was stressed after a full day's work when he spoke with Ms Requi, it is in my view unlikely that he would not have mentioned pain in his back or neck if he was experiencing such symptoms at the time.
  1. [140]
    The Appellant's evidence that he did not disclose other injuries because he did not understand the 'frame of reference' cannot be given significant weight given that he felt able to disclose symptoms of his right shoulder injury. Similarly, the Appellant's evidence that he did not disclose his symptoms because they were intermittent in nature is not persuasive, particularly in circumstances where he attended upon a number of medical practitioners following the work incident.
  1. [141]
    Many of the symptoms described by the Appellant did not emerge until some months after the work incident. Whilst the Appellant may have a view that there was no other 'event' to which the symptoms can be attributed, this alone cannot support a finding that the work incident was a significant contributing factor to the injuries in the absence of supportive medical evidence. This is particularly the case where there is evidence of other conditions such as degeneration.
  1. [142]
    The Appellant contends that he did not suffer any symptoms prior to the work incident of 13 July 2019, noting that he was subjected to a Boral Annual Health Medical prior to 13 June 2019 and was given 'a clean bill of health with no pre-existing conditions'.[83] Only four pages of the 12-page report are in evidence, and I note reference to 'Shooter's Ear – certain range (ex military)', hypertension, and hearing loss.
  1. [143]
    I accept that the Appellant did not suffer his current symptoms prior to the work incident, however, the evidence indicates that these symptoms did not develop until a significant period after the work incident. The only symptom that did arise soon after the work incident related to dizziness. The only medical opinion indicating that the dizziness was related to the work incident was provided by Dr Mantzioris who opined some three years after the work incident that it was a post‑concussion condition.[84] This is insufficient evidence given that there is no contemporaneous diagnosis of concussion or any head injury.
  1. [144]
    On the balance of probabilities, I consider that symptoms of injuries to the Appellant's left shoulder, neck, and lower back were not disclosed earlier because the Appellant did not sustain these injuries in the work incident. These symptoms arose at a later date and did not arise out of the work incident, with the medical evidence indicating that they are largely degenerative in nature.
  1. [145]
    On the balance of probabilities, the evidence supports a finding that the Appellant sustained an injury to his right shoulder that arose out of the work incident, with the work incident a significant contributing factor to the injury. I am not satisfied that a secondary psychological injury arose out of this injury.
  1. [146]
    The evidence does not support a finding that the Appellant's other conditions arose out of or in in the course of his employment or that his employment was a significant contributing factor to other conditions. Accordingly, the Appellant's psychological injury is not secondary to a physical injury and is not compensable.

Orders

  1. [147]
    I make the following orders:
  1. The appeal is upheld in part.
  2. The decision of the Workers' Compensation Regulator is set aside.
  3. The Appellant sustained a right shoulder injury in accordance with s 32 of the Act.
  4. No other injuries outlined in the Application for Assessment of Permanent Impairment were sustained by the Appellant in accordance with s 32 of the Act.
  5. Failing agreement on costs, to be the subject of a further application to the Commission.

Footnotes

[1] Rossmuller v Q-COMP [2010] ICQ 4.

[2] McDonald v Q-COMP (No. 2) (2008) 188 QGIG 180; Qantas Airways Limited v Q-COMP (2006) 181 QGIG 301.

[3] Briffa v Q-COMP (2005) 180 QGIG 70.

[4] T 1 – 6, ll 23 – 46.

[5] Respondent's written submissions filed on 31 May 2024 [5].

[6] Exhibit 27, page 150 of the Appellant's Hearing Bundle.

[7] Exhibit 27, page 156 of the Appellant's Hearing Bundle.

[8] Exhibit 19, page 21 of the Appellant's Hearing Bundle.

[9] T 1 – 36, ll 10 – 24.

[10] T 1 – 24, l 5.

[11] T 1 – 24, l 45.

[12] T 1 – 35, l 17.

[13] Exhibit 15, page 12 of the Respondent's Hearing Bundle.

[14] Ibid.

[15] T 1 – 88, ll 14 – 32.

[16] T 1 – 94, ll 17 – 19.

[17] T 1 – 39, l 45.

[18] T 1 – 40, ll 38 – 39.

[19] T 1 – 41, ll 21 – 23.

[20] T 1 – 54, ll 20 – 25.

[21] T 1 – 38, l 2.

[22] T 1 – 54, ll 35 – 37.

[23] Exhibit 2, page 5 of the Respondent's Hearing Bundle.

[24] Exhibit 1, page 175 of the Appellant's Hearing Bundle.

[25] Exhibit 1, page 175 of the Appellant's Hearing Bundle.

[26] Exhibit 26.

[27] Appellant's written submissions filed on 21 May 2024 [10].

[28] Ibid.

[29] T 2 – 59, ll 17 – 39.

[30] T 2 – 60, ll 13 – 20.

[31] T 2 – 58, ll 18 – 35.

[32] Appellant's written submissions filed on 21 May 2024 [10].

[33] Exhibit 26.

[34] [2021] QIRC 437.

[35] Burton v Workers' Compensation Regulator [2021] QIRC 437, 44.

[36] Exhibit 2, page 5 of the Respondent's Hearing Bundle.

[37] Exhibit 4, page 89 of the Respondent's Hearing Bundle.

[38] Exhibit 8, page 43 of the Respondent's Hearing Bundle.

[39] Exhibit 9, page 47 of the Respondent's Hearing Bundle.

[40] Ibid.

[41] T 1 – 43, l 10.

[42] Exhibit 8, page 43 of the Respondent's Hearing Bundle.

[43] Exhibit 23, page 65 of the Respondent's Hearing Bundle.

[44] Exhibit 16, page 76 of the Respondent's Hearing Bundle.

[45] T 1 – 90, ll 34 – 36.

[46] T 1 – 90, ll 42 – 44.

[47] Exhibit 4, page 89 of the Respondent's Hearing Bundle.

[48] T 1 – 48, l 30.

[49] Kennedy Cleaning Services Pty Limited v Petkoska [2000] HCA 45.

[50] [2011] ICQ 33.

[51] See also WorkCover Queensland v BHP (Qld) Workers' Compensation Unit [2022] ICQ 24.

[52] Exhibit 4, page 89 of the Respondent's Hearing Bundle.

[53] T 1 – 50, ll 16 – 17.

[54] T 1 – 51, ll 46 – 47.

[55] Exhibit 14, pages 93 to 118 of the Respondent's Hearing Bundle.

[56] T 1 – 58, ll 1 – 3.

[57] T 1 – 58, ll 7 – 12.

[58] Exhibit 14, pages 93 to 118 of the Respondent's Hearing Bundle.

[59] Exhibit 28, pages 119 to 125 of the Respondent's Hearing Bundle.

[60] T 3 – 5, ll 15 – 46.

[61] T 3 – 8, ll 13 – 20.

[62] T3 – 8, ll 24 – 29.

[63] Exhibit 26.

[64] Exhibit 32, page 142 of the Respondent's Hearing Bundle.

[65] Exhibit 30, pages 126 to 129 of the Respondent's Hearing Bundle.

[66] Exhibit 30, pages 126 to 129 of the Respondent's Hearing Bundle.

[67] Exhibit 31.

[68] T 3 – 21, ll 8 – 15.

[69] T 3 – 22, ll 45 – 47; T 3 – 23, ll 1 – 13.

[70] T 1 – 6, ll 37 – 39.

[71] Appellant's written submissions filed on 21 May 2024 [37].

[72] Exhibit 27, page 41 of the Appellant's Hearing Bundle.

[73] Exhibit 14.

[74] Exhibit 27, page 85 of the Appellant's Hearing Bundle.

[75] T 2 – 34, ll 11 – 13.

[76] T 2 – 34, ll 11 – 13.

[77] Exhibit 30, pages 126 to 129 of the Respondent's Hearing Bundle.

[78] Appellant's written submissions filed on 21 May 2024 [5].

[79] T 2 – 48, l 41.

[80] Appellant's written submissions filed on 21 May 2024 [9].

[81] Exhibit 27, page 187 of the Appellant's Hearing Bundle.

[82] Ibid.

[83] Appellant's written submissions filed on 21 May 2024 [9].

[84] Exhibit 27, page 187 of the Appellant's Hearing Bundle.

Close

Editorial Notes

  • Published Case Name:

    MacDonald v Workers' Compensation Regulator

  • Shortened Case Name:

    MacDonald v Workers' Compensation Regulator

  • MNC:

    [2025] QIRC 149

  • Court:

    QIRC

  • Judge(s):

    Power IC

  • Date:

    03 Jun 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
Briffa v Q-Comp (2005) 180 QGIG 70
2 citations
Jump To
Cite 1 - (2005) 180 QGIG 70
Cite 2 - (2005) 180 QGIG 70
Burton v Workers' Compensation Regulator [2021] QIRC 437
3 citations
Jump To
Cite 1 - [2021] QIRC 437
Cite 2 - [2021] QIRC 437
Cite 3 - [2021] QIRC 437
Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45
2 citations
Jump To
Cite 1 - [2000] HCA 45
Cite 2 - [2000] HCA 45
Qantas Airways Limited v Q-COMP (2006) 181 QGIG 301
2 citations
Jump To
Cite 1 - (2006) 181 QGIG 301
Cite 2 - (2006) 181 QGIG 301
Rossmuller v Q-COMP [2010] ICQ 4
2 citations
Jump To
Cite 1 - [2010] ICQ 4
Cite 2 - [2010] ICQ 4
Shaw v Workers' Compensation Regulator [2022] ICQ 24
1 citation
Jump To
Cite 1 - [2022] ICQ 24
Stephen Horace MacDonald v Q-COMP (2) (2008) 188 QGIG 180
2 citations
Jump To
Cite 1 - (2008) 188 QGIG 180
Cite 2 - (2008) 188 QGIG 180
Ward v Q-COMP [2011] ICQ 33
2 citations
Jump To
Cite 1 - [2011] ICQ 33
Cite 2 - [2011] ICQ 33
WorkCover Queensland v BHP (Qld) Workers’ Compensation Unit [2002] ICQ 24
1 citation
Jump To
Cite 1 - [2002] ICQ 24

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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