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Wahala Thantrige v Workers' Compensation Regulator[2025] QIRC 3

Wahala Thantrige v Workers' Compensation Regulator[2025] QIRC 3

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Wahala Thantrige v Workers' Compensation Regulator [2025] QIRC 003

PARTIES:

Teshara Malin Pabasara Wahala Thantrige

Appellant

v

Workers' Compensation Regulator

Respondent

CASE NO:

WC/2023/188

PROCEEDING:

Appeal against decision of the Workers' Compensation Regulator

DELIVERED ON:

10 January 2025

HEARING DATE:

9 December 2024

MEMBER:

Pidgeon IC

HEARD AT:

Hervey Bay

ORDERS:

The orders contained in paragraph [100] of these reasons for decision.

CATCHWORDS:

WORKERS' COMPENSATION – APPEAL AGAINST DECISION – whether the Appellant's injury arose out of or in the course of employment – whether employment was a significant contributing factor to the injury – consideration of medical evidence – where the credibility of the Appellant's evidence is not contested – where there is competing expert medical evidence – consideration of which evidence is preferable – where the appellant's injury is one for acceptance

LEGISLATION:

Workers' Compensation and Rehabilitation Act 2003 (Qld) s 558(1)(c)

CASES:

Ribeiro v Workers' Compensation Regulator [2019] QIRC 203

APPEARANCES:

Ms J Sorbello of Counsel, instructed by Morton & Morton, for the Appellant.

Mr P Rashleigh of Counsel, directly instructed by the Workers' Compensation Regulator

Reasons for Decision

  1. [1]
    Mr Wahala Tantrige ('the Appellant') was employed as a chef for a resort on K'gari (Fraser Island) when he injured his left knee while working in the chef's pass area of his workplace on 27 March 2021. On 1 April 2021, Mr Wahala Thantrige lodged an application for compensation. This application was accepted by WorkCover.
  1. [2]
    Subsequently, in November 2021, Mr Wahala Thantrige made a claim for compensation for an injury to the right knee. The claim for the right knee injury was rejected by WorkCover in a Reasons for Decision letter dated 8 June 2023.
  1. [3]
    It is this decision that Mr Wahala Thantrige appeals.
  1. [4]
    There is no dispute between the parties that Mr Wahala Thantrige is a worker, or that he has sustained a personal injury. The questions before the Commission are whether the right knee injury arose out of or in the course of employment, and if so, whether employment was a significant contributing factor to the injury.
  1. [5]
    A workers' compensation appeal is a hearing de novo. Accordingly, for the Appellant to be successful, they must demonstrate that their injury is one for acceptance.
  1. [6]
    In his Statement of Facts and Contentions filed in the Queensland Industrial Relations Commission ('the Commission') on 4 March 2024, Mr Wahala Thantrige sets out what he says are the circumstances which preceded his right knee injury. Mr Wahala Thantrige's evidence at hearing was consistent with these circumstances:[1]
  1. At the time of his left knee injury (27/03/2021) the Appellant was residing at staff accommodation at the employer's resort on Fraser Island.
  1. The Appellant attended the Hervey Bay Hospital on 28/03/2021. Between the time of the left knee injury and leaving Fraser Island to attend Hervey Bay Hospital, the Appellant could only ambulate by hopping on his right leg including on uneven ground and on sandy soil.
  1. To return to Hervey Bay to seek treatment the Appellant was required to travel from the resort via the barge to Hervey Bay and then by car to the Hervey Bay Hospital;
  1. Subsequent to the left knee injury the Appellant could not weight bear on his left leg. He did not have a crutch nor access to a wheelchair. Consequently he was required to hop on his right leg from his residence to the barge. That required traversing uneven ground, sandy soil, stairs and a sloping ramp approximately 100 metres long to access the barge.
  1. On arriving at Hervey Bay the Appellant was then required to hop on his right leg to alight from the barge and traverse from the pier to a car to travel to Hervey Bay Hospital.
  1. On arrival at Hervey Bay Hospital he again was required to hop on his right leg from the car to the reception of the Hospital.
  1. As a consequence of the Appellant's left knee injury and three subsequent surgeries prior to the end of 2021 the Appellant had difficulty weight bearing on his left leg and consequently mobilised on his right leg.
  1. The Appellant suffered pain in his right knee on the 28/03/21 subsequent to hopping on his right leg from his resident to the barge, from the barge to the car and from the car to the Hervey Bay Hospital reception.
  1. The right knee pain became progressively worse particularly as he was required to mobilise his right leg.
  1. The Appellant complained to Dr Bali of right knee symptoms in September 2021 when it became clear to him that the right knee symptoms were not temporary and indeed were becoming worse.
  1. The Appellant continued to have difficulty weight bearing on his left leg throughout 2022 during which time he mobilised on his right leg and suffered increasing symptoms in his right knee.
  1. [7]
    At hearing and in addition to the preceding circumstances canvassed above, Mr Wahala Thantrige's evidence was that on the evening he was injured, two of his colleagues helped him to hop to the car and that he put his arms around their shoulders so they could support him.[2]
  1. [8]
    Mr Wahala Thantrige said that he returned to his room sometime between 7 and 8 pm. He said that he could not walk around the room and that he was concerned about how he would go to the toilet. He said that his bed had wheels and that he pushed it close to the toilet and hopped on his right leg.[3]
  1. [9]
    Mr Wahala Thantrige recalled that he could not put much weight on his left leg for between 3 and 6 months.[4]
  1. [10]
    Mr Wahala Thantrige said that he noticed pain and 'sometimes a creaking' in his right knee. He said that he noticed this a couple of days after the incident in the kitchen. Mr Wahala Thantrige said that he mentioned the pain in his right knee to Dr Farzin (the first General Practitioner he saw), Dr Bali (the surgeon) and Ngareta (the physiotherapist).[5]
  1. [11]
    Mr Wahala Thantrige said that when he mentioned the right knee pain, he was told that it was quite normal to experience pain given that the right knee was compensating for the inability to use the left knee. Mr Wahala Thantrige said that he tried '… to think that it would go away after a while'.[6] He said that he didn't initially understand the term 'compensating' and that this was not a word he was familiar with, but that he came to realise this meant that his right knee was carrying more weight.[7]
  1. [12]
    Mr Wahala Thantrige said that after he told Dr Bali, the surgeon, several times that he had pain in his right knee, Dr Bali referred him for a right knee MRI scan. Following this, the physiotherapist gave him exercises for both legs.[8]
  1. [13]
    In cross-examination, Mr Wahala Thantrige was asked about the content of an incident report completed at the workplace following the events of 27 March 2021. The incident report recorded that when he fell, Mr Wahala Thantrige felt all of his body weight come down on his left knee. Mr Wahala Thantrige agreed that this was an accurate description of what he felt happened.[9]
  1. [14]
    Part of the incident report recorded that Mr Wahala Thantrige said he had previously injured his left knee. Mr Wahala Thantrige clarified that he was not referring to any injury  similar to what he had sustained after the 27 March 2021 incident. He explained instead that he was referring to past instances where he may have fallen and been scratched.[10] Later in re-examination, Mr Wahala Thantrige said that he thought the question in the incident report required him to disclose 'any kind of injuries', such as 'falling down, hitting, scratches, everything'. He stated that he had never had any injury to his left knee that required treatment beyond 'a balm'.[11]
  1. [15]
    Mr Wahala Thantrige agreed that he had told a WorkCover representative that in the incident on 27 March 2021, he had twisted his left leg, felt a strain in his left leg and also felt a strain in his left knee.[12]
  1. [16]
    Mr Wahala Thantrige agreed that on 30 September 2021, he had reported to Dr Bali that he had right knee pain when doing some exercises. Mr Wahala Thantrige said that he reported to both Dr Bali and to his physiotherapist that he was experiencing knee pain that was worse on the right than on the left when exercising. He also reported pain when performing leg curls and using the rowing machine.[13] It was put to Mr Wahala Thantrige that this was the first time he had reported any pain in his right knee to any medical practitioner. Mr Wahala Thantrige disagreed and said that he had mentioned pain in his right knee before.[14] Mr Wahala Thantrige confirmed that the exercises he was doing when he reported the pain in his right knee were those provided by his physiotherapist.[15]
  1. [17]
    In its Statement of Facts and Contentions filed on 9 April 2024, the Respondent says that it is not satisfied on the balance of probabilities that the Appellant's right knee injury arose out of or in the course of his employment in relation to the event of 27 March 2021, or that employment was a significant contributor to the injury.[16]
  1. [18]
    In its Statement of Facts and Contentions, the Respondent agrees that the Appellant attended on the Hervey Bay Hospital on 28 March 2021, however it denies the Appellant's points 2–9 which have been canvassed above at paragraph [6] of these reasons. The Respondent says that the allegations and hypotheses set out by the Appellant in his Statement of Facts and Contentions are '… a matter of recent invention'[17] and that the Appellant's credit is in issue.
  1. [19]
    To that end, the Respondent says the Appellant's description of the 27 March 2021 incident was that he felt the full force of pain and body weight in his left knee. The Respondent says that when making the claim for the right knee injury, the Appellant said that he injured his right knee in the incident on 27 March 2021.
  1. [20]
    The Respondent says that when the Appellant described the right knee symptoms to Dr Bali in January 2022, he said that he only had occasional pain in the right knee and provided no mechanism of injury. Dr Bali also noted that there were no mechanical issues with the Appellant's right knee.
  1. [21]
    The Respondent says that it was only when the Appellant was applying for a review of WorkCover's decision to reject his claim for the right knee injury that he raised the matters set out above from 2–9 (at paragraph [6] above). Further, the Respondent says that the Appellant has not produced any medical evidence to support the allegations and hypotheses in paragraphs 2–9.
  1. [22]
    The Respondent refers to its own medical evidence which it says demonstrates that there has been no work-related injury to the Appellant's right knee, either on 27 March 2021 or at all.

The expert evidence before the Commission

  1. [23]
    The evidence for the Appellant consisted of the Appellant himself and Associate Professor Gary Nielsen, Orthopaedic Surgeon. The Appellant's evidence is set out above from paragraphs [6]–[16] of these reasons.

Associate Professor Gary Nielsen

  1. [24]
    Associate Professor Nielsen was instructed by Mr Wahala Thantrige's solicitors and provided an independent examination and report following an interview and examination undertaken on 4 April 2024.[18]
  1. [25]
    Associate Professor Nielsen's report provides a history of the left knee injury and the circumstances of the incident on 27 March 2021 as reported to him by Mr Wahala Thantrige. Associate Professor Nielsen noted that during 2022, Mr Wahala Thantrige was required to have further surgery on this left knee. Associate Professor Nielsen also noted that Dr Palapitige, Mr Wahala Thantrige's orthopaedic surgeon, recommended arthroscopic surgery to Mr Thantrige's right knee. The report notes that 'WorkCover did not consent to covering surgery to Mr Wahala Thantrige's right knee. This surgery was performed privately by Dr Palpitage (sic) in September 2023'.[19]
  1. [26]
    Associate Professor Nielsen's report listed prior investigations and reports and noted that an MRI scan on 14 November 2021 demonstrated a likely medial meniscus tear to the right knee. There was a further MRI scan on 1 September 2022 which demonstrated a medial meniscus tear to the right knee.[20]
  1. [27]
    Associate Professor Nielsen provided the following diagnosis in his report:[21]

Mr Thantrige has ongoing pain and loss of function following a soft tissue injury to his left knee causing a medial meniscal tear and an anterior cruciate ligament injury, requiring multiple surgeries, in a work incident dated 27 March 2021.

Mr Thantrige also likely sustained a soft tissue injury to his right knee as a consequence of the work-related event and likely abnormal weight bearing which caused a medial meniscal tear.

  1. [28]
    Associate Professor Nielsen was specifically asked whether it was more probable than not that Mr Wahala Thantrige suffered his right knee injury as a consequence of the circumstances of 27 March 2021. Associate Professor Nielsen said:[22]

Mr Thantrige likely injured both knees in the work-related event dated 27 March 2021, given the nature of the fall and likely twisting injuries which occurred to both knees at the time. Mr Thantrige initially was likely more concerned about the injury to his left knee than his right given the severity of the injury to his left knee. It is also likely that Mr Thantrige further aggravated his right knee with the mobility requirements subsequent to his injury, where he was not provided with external aids to make it easier for him to mobilise. His right knee injury was likely further aggravated by the requirement for him to hop over uneven ground from his residence to a barge, and when getting on, and off the barge. It was only when he was reviewed at the Hervey Bay Hospital, the day following his injury, that he was provided with appropriate external aides to allow him to walk more effectively, relieving both lower limbs by taking some weight through his upper limbs.

Subsequent to his initial medical officer review, the focus of treatment revolved around his left knee which would seem appropriate given the severity of that injury. Over time, once his left knee had been effectively treated, he became aware of ongoing pain in his right knee with investigations demonstrating a likely medial meniscal tear which would be consistent with potential trauma sustained at the time of the injury and also the required impact loading, to hop in the early post-injury phase, without him being able to use appropriate external aides.

It is my opinion, that it is more probable than not, that the injury sustained to Mr Thantrige's right knee, requiring surgery, was caused by both the initial injury and the early post-injury mobility difficulties.

  1. [29]
    Associate Professor Nielsen's report contained several conclusions. Relevantly:[23]
  • Mr Teshara Wahala Thantrige sustained soft tissue injuries to both knees in a work-related incident dated 27 March 2021.
  • He sustained a soft tissue injury to his left knee which caused both an anterior cruciate ligament rupture and a medial meniscal tear.
  • The claimant sustained a soft tissue injury to his right knee which likely caused a medial meniscal tear in the work event dated 27 March 2021 which was likely aggravated by the early post-injury requirements for mobility following his left knee injury.

…

  1. [30]
    Under cross-examination, Associate Professor Nielsen was asked about the available MRI imaging of Mr Wahala Thantrige's right knee. Associate Professor Nielsen said that the reports were confusing but it appeared that there had been a repair or injury to the right knee, but 'a repair can be either as a consequence of the body healing, or it can be as a consequence of actually surgical healing, but it would suggest that there has been an injury to the medial meniscus'.[24]
  1. [31]
    Associate Professor Nielsen agreed that his opinion was that Mr Wahala Thantrige had suffered a soft tissue injury to his right knee which likely caused a medial meniscal tear in the fall on 27 March 2021 and that this was likely aggravated by the post-injury mobility requirements following the left knee injury.[25] It was put to Associate Professor Nielsen that in the incident report, Mr Wahala Thantrige had said that all of his weight was on his left knee and that there was no reporting of any trauma to the right knee. Associate Professor Nielsen said '…he certainly is not reporting any, but it's possible that the other knee has significant stress going through it as he falls to the ground, with him being focused on his left knee, given that it was the more severely injured knee'.[26]
  1. [32]
    Associate Professor Nielsen was asked if his opinion was 'just a hypothesis' and he said:[27]

I think that when one knee gives way, you do put a fair bit of stress through the other knee in an attempt to stop yourself from falling, and that would typically be a stress through the inside of that knee, and it would also be a stress through a flexed knee, in other words, your knee would be bent, which would be highly likely to put a significant amount of force on the posterior aspect of his medial meniscus, given the nature of the likely fall.

  1. [33]
    Associate Professor Nielsen was again taken to the incident report which doesn't suggest that Mr Wahala Thantrige put any weight on this right knee or took any force through his right knee. Associate Professor Nielsen said that the description Mr Wahala Thantrige gives relates to the amount of force that he felt that went through his left knee. Associate Professor Nielsen said this 'doesn't actually mean that he didn't have significant force going through his right knee. Our weight is taken by both of our lower limbs and both of our knees get force through them when these incidents happen'.[28]
  1. [34]
    Associate Professor Nielsen maintained that force would have gone through both of Mr Wahala Thantrige's knees because he was weight bearing on both of his knees at the time of the fall. While Associate Professor Nielsen agreed that one can take all the weight on one leg without taking any on the other, that would not be in a process of walking or changing direction as Mr Wahala Thantrige had described the incident.[29]
  1. [35]
    Associate Professor Nielsen was asked if it was his view that taking weight on the right knee or right leg following the injury to the left leg could have caused any meniscal tear. Associate Professor Nielsen said:[30]

… it could easily cause a meniscal tear in the right knee. He was hopping on that knee for a prolonged period of time, until he was seen at Hervey Bay Hospital the next day, and he describes hopping on his right knee because he couldn't weight bear through his left knee, in that process walking on uneven ground, going over sand, probably, and getting onto a barge, before he was finally supplied with some external aids, as I understand it, at Hervey Bay Hospital following review.

  1. [36]
    Associate Professor Nielsen was asked whether what he was saying was that Mr Wahala Thantrige had suffered a medial meniscal tear because of the requirements for post-injury mobility following his left knee injury. Associate Professor Nielsen said:[31]

What I am saying is that one likely caused and one likely aggravated. It's possible that either mechanism could have led to him developing a medial meniscal tear in his right knee as a consequence of either the original injury or the required – walking requirements, or hopping requirements, subsequent to his injury, which is actually quite an unusual thing to happen. Usually people are provided with walking aids and supports so that they can weight relief both lower limbs, so that they're not weight bearing on their painful side, and that they're actually able to get around without having to do certain movements, like hopping, which puts quite a lot of force on the uninvolved knee in this – well, the purported non-injured knee in this case, which I think probably did sustain an injury as a consequence of these requirements, and potentially the injury that initially happened.

  1. [37]
    Associate Professor Nielsen was asked if what he was saying was that Mr Wahala Thantrige could have suffered the medial meniscal tear either in the incident or from hopping or that he could have suffered a tear in the initial incident and a further tear hopping. Associate Professor Nielsen said:[32]

there's the potential to extent (sic) tears in carrying out activity like hopping. So he could have had an undisplaced crush injury to his meniscus at the time of the original injury and then he could have had an extension of that tear with the required forces when he's hopping subsequently. So I'm saying it's likely in – that it could happen in both situations, and one or other could have caused the tear, or both of them could have contributed to the tear.

  1. [38]
    Associate Professor Nielsen said that a twisting motion is a more likely mechanism of injury to damage a meniscus but that a crush injury can also occur with an impact load to the knee. Associate Professor Nielsen said:[33]

… the predominant thing is the forces that are likely to have gone through that medial meniscus, both at the time of injury and subsequently with the hopping that he was required to do on that uneven terrain that he had to face. Very unusual circumstances for an individual after an injury like this.

  1. [39]
    Associate Professor Nielsen accepted that the MRI scan in November 2021 showed a previous medial meniscal tear and said that he can't discount that the tear might have happened before the incident on 27 March 2021.[34]
  1. [40]
    I asked Associate Professor Nielsen whether it was his opinion that even if the kitchen incident had not injured the right knee, the act of Mr Wahala Thantrige moving around and having to rely on the right knee and would be sufficient to cause the injury. In answer to this, Associate Professor Nielsen said, 'Yes, that's correct'.[35]
  1. [41]
    I followed up on the suggestion of the Respondent's counsel that the medial meniscal tear may have occurred before the incident on 27 March 2021 and asked if that was the case, whether Mr Wahala Thantrige would have been suffering some symptoms of that, Associate Professor Nielsen said:[36]

Yes, so it's highly likely that he would have - he would have actually told me that he had had a prior injury to his knee, which he may have felt that he recovered from. The issue with this particular situation is the significance of the injury to his left knee and his focus on his left knee, and subsequently the events, which were significant. He ended up having to get a reconstruction, he had an infection in that knee. His whole focus and what the treatment options were, were – looked at his left knee and not his right knee. So he could easily have injured his knee in the – as we described – but that the injury wasn't the focus of … what was happening to him.

That's the point that I'm making, that it's definitely possible for that to have happened.

  1. [42]
    In re-examination, Associate Professor Nielsen was asked if hopping on sand could cause the type of twisting injury that might lead to a medial meniscus tear. This question was objected to on the basis that Mr Wahala Thantrige had not given evidence that he had twisted his knee and that the question was merely posing a hypothesis. On the basis that the expert witness was likely to have a better understanding of the mechanism of movement than the Appellant, I allowed the question. Associate Professor Nielsen answered:[37]

… so obviously, if he's going over soft sand, it's quite uneven and there are – the knee will accommodate and move in certain directions because it's uneven. So it is possible for a person to sustain a twisting injury in the process of hopping on uneven ground – on uneven surfaces.

Dr Christopher Cunneen's evidence

  1. [43]
    Dr Cunneen provided an Independent Medical Examination Report to WorkCover dated 4 May 2023.[38] A Supplementary Independent Medical Examination Referral report finalised on 23 November 2023 was also provided.[39]
  1. [44]
    Dr Cunneen's report noted the history of the injury, including the kitchen incident on 27 March 2021. Dr Cunneen recorded that Mr Wahala Thantrige told him he had immediately noticed pain and experienced swelling of the left knee joint. Mr Wahala Thantrige stated that his right knee was also sore but did not give a history of trauma or rotational injury to the right knee joint.
  1. [45]
    Dr Cunneen notes that when Mr Wahala Thantrige was seen at the Hervey Bay Hospital the following day on 28 March 2021, there was no reference to any right knee injury. Dr Cunneen also notes that Dr Bali, the treating Orthopaedic Surgeon, saw Mr Wahala Thantrige in May 2021 and confirmed the left knee injury and recommended surgery on it but did not make any reference to a right knee injury.
  1. [46]
    Dr Cunneen notes that in August 2022, Mr Wahala Thantrige reported to a second treating Orthopaedic Surgeon, Dr Palapitige, that 'his right knee was also sore, particularly [the] medial aspect …'.[40]
  1. [47]
    Dr Cunneen notes that since then, Mr Wahala Thantrige has seen a physiotherapist for the right and left knee, returned to work under a restricted suitable duties program and that in March 2023, a request was made by Dr Palapitige for surgery to Mr Wahala Thantrige's right knee to address a torn medial meniscus.
  1. [48]
    Dr Cunneen's report contains a section called 'Current Situation'. This section of the report stated that when seen for assessment, Mr Wahala Thantrige noted pain over the medial joint line and described constant right knee pain as 'aching, burning, tiring and throbbing'.[41]
  1. [49]
    Dr Cunneen states the following:[42]

Regarding Mr Wahala Thantrige's right knee joint, there is insufficient medical information to confirm he sustained a work-related injury to right knee joint from 27 March 2021 event. The first entry in any medical records for right knee injury is where Dr N Bali (treating Orthopaedic Surgeon) referred Mr Wahala Thantrige for an MRI scan right knee during mid-November 2021, being 7+ months since the left knee injury was documented.

  1. [50]
    Dr Cunneen addresses the right knee in the section of his report titled 'Discussion'. The relevant parts of that section state:[43]

As stated previously, Mr Wahala Thantrige stated his right knee was sore at the time of the March 2021 workplace event, however there are no medical records from either the Hervey Bay Hospital, his treating General Practitioner or his treating Surgeon (Dr N Bali) reflecting this situation. Furthermore, I note the March 2021 incident report from his employer does not reference a right knee injury. During November 2021, 8 months post-injury, an MRI scan right knee was performed with demonstrated a torn right medial meniscus. There is a lack of clarity for this claimant's right knee injury to determine whether it is pertaining to March 2021 event or related to other external factors and unrelated causation.

I would recommend the Insurer contact Dr N Bali (treating Orthopaedic Surgeon) to obtain a report or at least copies of his medical notes for Mr Wahala Thantrige following the March 2021 event. Should this treating Orthopaedic Surgeon's records reflect a right knee injury from the March 2021 event had occurred, this would add substance for bilateral knee injuries from the March 2021 event. In the absence of these treating medical specialist's records or not documented in any contemporaneous medical records, I am unable to support Mr Wahala Thantrige's claim for a right knee injury involving torn medial meniscus as pertaining to the March 2021 event. Should further medical information come to light referencing a right knee injury following the March 2021 event, then I would be prepared to reconsider this decision.

  1. [51]
    On 21 November 2023, Dr Cunneen was provided with additional records of Mr Wahala Thantrige's treating medical practitioners, including Dr Bali (Orthopaedic Surgeon) and Ms Melgren (physiotherapist). Dr Cunneen's supplementary referral report relevantly states:[44]
  1. Please confirm the diagnosis of Mr Wahala Thantriges (sic) injury to his right knee. Is this an aggravation of a pre-existing condition? If so, please provided details.

Diagnosis is a torn right medial meniscus, confirmed on MRI scan of Mr Wahala Thantrige's right knee (dated 14 November 2021). There is no medical evidence on file to suggest this right knee injury is a work-related aggravation or a pre-existing medical condition.

  1. On the balance of probabilities, do you consider that Mr Wahala Thantriges (sic) employment, namely the work-related incident on 27 March 2021 or the accepted work-related injury for a left knee medial meniscal tear, is a significant contributing factor to the injury referred to in your report dated 4 May 2023 as a medial meniscal tear right knee? Please provide reasoning for your response

No. There is no medical evidence on file [especially noting Dr Bali's (treating Orthopaedic Surgeon) and Ms N Melgren's (treating physiotherapist) consultation records from 2021/2022] to support Mr Wahala Thantrige's right knee condition (torn medial meniscus) is causally or even temporally related to 27 March 2021 workplace event or torn left medial meniscal tear. Noting the recently available consultation record of Dr N Bali (treating Orthopaedic surgeon), I would opine his employment as a Head Chef and particularly 27 March 2021 workplace event (and subsequent torn left medial meniscus), were not significant contributing factors for this claimant's right medial meniscal tear. The first mention pertaining to Mr Wahala Thantrige's right knee condition is Ms N Melgren's consultation record (dated 30 September 2021) where the comment was "right knee pain when doing some exercises is worse than left knee." At 6+ months post injury for this document left knee injury this comment would not support a separate workplace right knee injury was sustained from 27 March 2021 event. As stated in my IME and PI reports (dated 4 May 2023) and noting the recently available records of Dr N Bali (treating orthopaedic surgeon), Dr N Bali first commented upon this claimant's right knee symptoms on 23 November 2021 "getting some symptoms right knee medial ? meniscal tear." MRI scan right knee confirmed torn medial meniscus. This MRI right knee finding, in the absence of a collateral medical history, would not support a workplace injury right knee has occurred during March 2021.

  1. [52]
    It was put to Dr Cunneen that the reason he didn't consider that the injury related to the kitchen incident in March 2021 was that there were no early records reporting any pain associated with the right knee. Dr Cunneen answered that 'normally…a meniscal injury is a severe injury…often obvious at the time but can take some days, even a week to become obvious'.[45] Dr Cunneen said that he has treated people with meniscal injuries on both sides 'as a non-surgeon' and that it is 'usually fairly evident within the first three to five days that they've got injuries on both sides'.[46]
  1. [53]
    Dr Cunneen was asked if he were to accept that Mr Wahala Thantrige was suffering pain in his right knee within one to two days after his fall, whether he would then accept that the fall caused the right knee injury.[47] Dr Cunneen said that the mechanism of injury reported to him by Mr Wahala Thantrige was with regard to the left knee. When Dr Cunneen asked Mr Wahala Thantrige about his right knee, Mr Wahala Thantrige said that it became sore six months later. Dr Cunneen also noted that Mr Wahala Thantrige had seen four doctors over a period of time and they all focused on the left knee. Dr Cunneen said that in his experience, 'people who have bilateral meniscal injuries occur at the same time due to their fall…usually within a few days, limp on both knees'.[48]
  1. [54]
    Dr Cunneen was asked to consider that Mr Wahala Thantrige was experiencing pain within one to two days of the incident and whether in that case, there would be a temporal connection to the incident. Dr Cunneen agreed.
  1. [55]
    Dr Cunneen said that he was not aware that Mr Wahala Thantrige had hopped on his right leg with assistance (but without crutches) over loose sand and an uneven timber jetty until he read Associate Professor Nielson's report over the weekend prior to the hearing. Dr Cunneen disagreed that hopping on the right leg and placing all weight on the right leg in the loose sand might be a mechanism for the meniscal tear that Mr Wahala Thantrige had suffered. Dr Cunneen said:[49]

No, I would disagree with Associate Professor Nielson with all due respect on that. You still need a mechanism of injury where you have rotation. You can't get a radial tear to your meniscus unless you – uh, unless you've got rotary instability, and that's how he tore the left one. I didn't get a history of that happening to the right side, and that's where I struggle to accept the right meniscal tear … occurred at the same time.

  1. [56]
    Dr Cunneen was asked to confirm whether his evidence was that if one hops on their right knee in loose sand, the right knee can't possibly twist. To this question, Dr Cunneen said that if Mr Wahala Thantrige had a meniscal tear in his right knee at the time, he wouldn't have been able to hop. Dr Cunneen agreed that one may twist their knee if hopping on loose sand but that 'usually you'd fall over, your knee would swell and you'd have difficulty moving on that [knee].'[50] Dr Cunneen said, however, that he was not aware that this is what had happened.
  1. [57]
    Dr Cunneen agreed that Mr Wahala Thantrige had been provided with medication including anti-inflammatories and painkillers, but said that if Mr Wahala Thantrige had sustained a meniscal tear in both knees, he would have had similar symptoms in both knees and would not have been able to put all of his weight on the right knee.[51]
  1. [58]
    Dr Cunneen agreed that Mr Wahala Thantrige had a medial meniscal tear in his right knee confirmed on 14 November 2021 but said that this confirmation was not indicative of when that injury was sustained and he could not identify a specific sudden onset.[52].
  1. [59]
    Dr Cunneen agreed that it was possible that Mr Wahala Thantrige had no history of being incapacitated completely on his right knee but still had a medial meniscal tear meaning he was never completely incapacitated as a result of an acute onset of injury but said:[53]

But I wouldn't say it's probable. Normally, as I said, my experience has been that it's – it's uncommon to have bilateral meniscal tears, but it does happen. And usually when they do, they can't walk on either lower limb. They're usually in a wheelchair.

  1. [60]
    Dr Cunneen was asked if he accepted that the medial meniscal injury was suffered either as a result of the fall in the kitchen or by hopping on the right leg across loose sand. He replied that he could not accept that the hopping caused the injury in circumstances where there is no suggestion that Mr Wahala Thantrige hopped resulting in a fall and twisting movement. Dr Cunneen said:[54]

I mean, medial meniscal tears are – are one of two causes. It's either rotary instability where you twist and slip, and that's the left one. I actually asked  him about that when I saw him, which was two years after the event. And the thing is, he did not give that story, which then makes it difficult to support that a medial meniscal tear occurred. The other group that get it are older people who have degenerative meniscus, where bits get caught just, uh, in normal activity and that's not relevant for this claimant.

  1. [61]
    I asked Dr Cunneen if he was familiar with a medial meniscal tear being caused by a 'crush' rather than a twist (as described by Associate Professor Nielsen). Dr Cunneen agreed but said that a crush '… normally is where…someone jumps from a height or they've been knocked over and fall a distance or land flat-footed. And instead of breaking bone, the meniscus…gets caught'.[55]
  1. [62]
    Noting that the evidence was that Mr Wahala Thantrige had suffered a medial meniscal tear to the right knee, I asked Dr Cunneen whether it was possible that a medial meniscal tear could start out quite minor and develop over time until it finally gets to the point where someone is complaining about it. Dr Cunneen agreed that this can occur but said that normally it would require a significant trauma where there is a twist, with or without a fall, but that, in this case, Mr Wahala Thantrige had fallen on his left side. When asked, Dr Cunneen agreed with Associate Professor Nielsen that there could be a tear and then a crush injury. Dr Cunneen said, however, that this would not usually result from hopping.[56]
  1. [63]
    Dr Cunneen said that, ordinarily, a medial meniscal tear will bleed and swell and that a person cannot walk on it. He said that he was struggling with Mr Wahala Thantrige's  presentation because he was able to take his full body weight on his right leg for a period of time without the classic symptoms of a swollen knee that's locked, as had occurred with the left knee injury, but that six months later he complained about it to the physiotherapist. Dr Cunneen said 'I think it's possible, but I struggle to support the fact that it's probable'.[57]
  1. [64]
    I told Dr Cunneen that the evidence before me did not indicate that Mr Wahala Thantrige had experienced any intervening event with his right knee of the kind that Dr Cunneen said he would expect to result in a medial meniscal tear:[58]

COMMISSIONER: …It doesn't sound as though there was a kind of – you know, a bam moment               where suddenly the appellant was unable to weight bear on the right leg. It was sore and it was hurting him, and I think that on the basis of it being sore and hurting him, the MRI was ordered and then the MRI discovered that there was a meniscal tear. So I understand what you're saying that in the regular case of things, there'd be this immediate swelling and pain and so on, but that just doesn't appear to have occurred in this case, and yet the MRI says that there was a meniscal tear. Can you comment on that?

DR CUNNEEN: …well the thing is – that says there's a tear, it doesn't say what the mechanism of injury was, and I don't know what happened over the six months from March through to September. That's – that's the sticking point.

  1. [65]
    Dr Cunneen said that while Mr Wahala Thantrige's knee may have been sore at the time, he was able to fully weight bear on it and this made it difficult to support that he sustained a meniscal tear back in March 2021.
  2. [66]
    I asked Dr Cunneen if it was his opinion that had Mr Wahala Thantrige sustained the medial meniscal tear prior to the kitchen incident in March 2021, he would have been able to walk around and function in the kitchen like a regular chef. Dr Cunneen said that if it had been recent, Mr Wahala Thantrige would not be able to do that. However, Dr Cunneen said:[59]

I mean, I've seen people who've…had knees – they swell, and they're three years down the track and they just put up with it…but they still have a sore knee, but they basically have not sought treatment or declined treatment. Yes, they can fully weight bear, the vast majority, but they still struggle when they twist. So yes, I would say that, you know, I don't know when the right knee happened, but basically it was definitely proven on MRI scan in November 2021 but the problem is I can't say that it happened on 27th March 2021

  1. [67]
    The Respondent did not seek to re-examine Dr Cunneen.[60]

Closing submissions

  1. [68]
    The parties gave brief oral closing submissions following the witness evidence.

Respondent's submissions[61]

  1. [69]
    Mr Rashleigh submits that the question for me to determine is which medical expert opinion I accept. Mr Rashleigh says that the contemporaneous reporting is that Mr Wahala Thantrige's left leg took the weight in the incident in the kitchen and that there is no evidence to support that there was a meniscal tear to the right knee during the 27 March 2021 event.
  1. [70]
    Mr Rashleigh then turned to the evidence regarding Mr Wahala Thantrige hopping or moving with the support of his colleagues on either side of him. Mr Rashleigh says that there is 'no real mechanism of injury' and points to Dr Cunneen's evidence about there being an absence of some severe impact to cause the tear. Mr Rashleigh says that there were periods where Mr Wahala Thantrige has pain in his right knee but that he was able to walk. Mr Rashleigh submits that Mr Wahala Thantrige's history does not allow me to draw the inference that the injury was suffered by Mr Wahala Thantrige between the 27 March 2021 incident and the date of the MRI which demonstrated the right knee injury in November 2021.
  1. [71]
    Mr Rashleigh says that it is not in dispute that Mr Wahala Thantrige is a worker and that he suffered an injury. Mr Rashleigh says that in this case, the matters of the injury arising out of work and that work was a significant contributing factor can be considered concurrently. Mr Rashleigh submits that I can be guided by the medical evidence and that I need to weigh up the medical evidence and determine which opinion I accept.

Appellant's submissions[62]

  1. [72]
    Ms Sorbello says that Mr Wahala Thantrige's failure to mention his right knee pain in the incident report is readily explained by his likely greater concern for his left knee and the significant and sudden pain he experienced in his left knee immediately following the incident.
  1. [73]
    Ms Sorbello submits that there is no evidence about there being any other time or injury or reports of pain in the right knee prior to the 27 March 2021 incident. In support of this, Ms Sorbello refers me to the expert medical reports which she says corroborate this position.
  1. [74]
    Ms Sorbello points to Mr Wahala Thantrige's evidence that within one to two days, he noticed the right knee pain. Ms Sorbello also notes Mr Wahala Thantrige's evidence that he raised the right knee pain but was 'fobbed off' and told that the pain was because his right knee was compensating for the left knee injury. Ms Sorbello also notes that there was no attack on Mr Wahala Thantrige's credibility or suggestion that he was not being truthful when he says he experienced right knee pain within one to two days of the incident.
  1. [75]
    Ms Sorbello notes that Dr Cunneen was unwilling to draw a temporal connection between the incident and the right knee pain on the basis that there was no contemporaneous reporting of pain in the medical records until 30 September 2021, however Mr Wahala Thantrige's unchallenged evidence was that he experienced pain in the right knee within two days of the incident.
  1. [76]
    Of Dr Cunneen's view that the right knee meniscal tear could not have occurred after the incident because there wasn't any immobilisation or sudden onset, Ms Sorbello says that this view is inconsistent with the facts of this case. She submits that in this case, we know that there is a medial meniscal tear to the right knee but no evidence at all that there was ever a time where Mr Wahala Thantrige was completely incapacitated.
  1. [77]
    In support of this position, Ms Sorbello makes reference to the evidence of Associate Professor Nielsen that the meniscal tear of the right knee could have resulted from an aggravation of a twisting movement on 27 March 2021. Ms Sorbello further highlights Associate Professor Nielsen's evidence that Mr Wahala Thantrige may have suffered a soft tissue injury to the right knee during the incident on 27 March 2021, but that the meniscal tear may not have been sustained during the incident.
  1. [78]
    Ms Sorbello says that the evidence of Associate Professor Nielsen should be accepted over Dr Cunneen's. Ms Sorbello submits that Dr Cunneen's evidence 'doesn't sit with logic' in circumstances where there was never a time when Mr Wahala Thantrige could not bear weight on the right leg and there is no evidence before the Commission about there being a pre-existing event or any other mechanism of injury.
  1. [79]
    Ms Sorbello sums up the Appellant's case as follows:[63]

So we have Mr Wahala Thantrige's evidence that he felt the pain in his right knee within one to two days. We have the undisputed evidence that following the incident, he had to hop through the sand and to the jetty. We have Associate Professor Nielson's evidence that the acts of doing that alone could cause the injury, but he says also, coupled with the twisting mechanism in the first instance, that the combination of those two things could also be – (sic) probably cause the injury. And there's an absence – complete absence of any other explanation for a medial meniscal tear having been sustained by Mr Wahala Thantrige. So we say on the balance of probabilities it should be accepted that the right knee injury, medial meniscal tear, is causally related to the incident on the 27th of March, and that work was a significant contributing factor to that injury.

Consideration

  1. [80]
    At the hearing, the Respondent did not seek to challenge the Appellant's credibility or suggest that his account of events following the incident was not correct. By the end of the hearing, it was not in contention that the Appellant experienced pain in the right knee within one to two days of the incident of 27 March 2021 and that he had had to hop on his right leg either aided by colleagues or unaided across loose sand, on uneven ground or decking, in his room overnight, and on the ferry back to the hospital the day after the incident. The evidence also demonstrated that there was a period of time where Mr Wahala Thantrige was using crutches and placing weight on his right knee during his recovery. It was also accepted that Mr Wahala Thantrige complained of pain in his right knee to his doctor and his physiotherapist in September 2021.
  1. [81]
    I found Mr Wahala Thantrige to be an open and honest witness and I accept his evidence that he experienced pain in his right knee one to two days after the incident of 27 March 2021. Further, I accept his recollection of the events on 27 March 2021 and those subsequent to this date.
  1. [82]
    In Ribeiro[64] his Honour Deputy President Merrell set out the relevant principles to be considered when the Commission is required to assess competing expert evidence:[65]

The relevant principles

[43]  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 were 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.[66]

[44]  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.[67]

[45]  A medical doctor's appreciation of the legal aspects of a case, if relevant, is of no probative value.[68]

[46]  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.[69] 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.[70]

[47]  A finding of a causal connection may be open even if there is no medical evidence to support it.[71]

[48]  Where medical science is prepared to say it is possible there is such a causal connection, then the tribunal, after examining the lay evidence, may decide that it is probable there is such a connection.[72]

[49]  It is only where the medical evidence denies any causal connection between an event and an injury, that a tribunal cannot act on its own intuitive reasoning as if there was such a connection.[73]

[50]  In resolving disputes between experts, it is simply not a matter of adding up the witnesses on each side[74] or by mere perusal of a variety of documentary medical reports.[75]

[51]  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 tribunal's persuasion to prefer one opinion over another may well be based on factors such as that 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.[76]

[52]  Other guiding considerations include the expert's qualifications, impressiveness and cogency of reasoning and exposition (not always a decisive ground), preparation for and application to the problem in hand, and the extent to which the witness had a correct grasp of the basic, objective facts relevant to the problem.[77]

[53]  If the factual underpinning of the report is disturbed by, for example, the rejection by the tribunal of parts of that underpinning then it follows that the report itself is weakened to that extent.[78]

[54]  Questions of credit and credibility are applicable in the evaluation of an expert's evidence in that, sometimes, expert witnesses display signs of partisanship in the witness box or lack objectivity or refuse to make proper concessions to the viewpoint of the other side.[79]

[55]  Finally, demeanour in the witness box is usually of little importance in resolving conflicts between well-qualified medical experts.[80]

  1. [83]
    Having accepted Mr Wahala Thantrige's evidence, it is necessary to turn to the expert evidence to assist me in determining whether the injury arose from employment and whether employment was a significant contributing factor. It is not my intention to step through each of the principles set out in paragraph [82] above, however, I have given regard to them in considering this matter.
  1. [84]
    Despite some confusion about errors in the dates and or reporting of an MRI on the Appellant's right knee, following the evidence of the expert medical witnesses, it is not in contention that the Appellant had suffered a meniscal tear in his right knee as of the date of the MRI in November 2021.
  1. [85]
    There is no evidence by way of medical records or witness testimony before the Commission that the Appellant had sustained a medial meniscal tear to his right knee prior to the kitchen incident. There is no evidence that the Appellant was suffering pain or any incapacity in the right knee prior to the kitchen incident. While Dr Cunneen said that it is possible for a person to have a medial meniscal tear and to not have treatment and to put up with the pain, there is no evidence that this is what occurred.
  1. [86]
    Dr Cunneen reported that there was no evidence of a pre-existing injury.[81] Associate Professor Nielsen could not rule out that the tear occurred prior to March 2021, however noted that this was not what was reported to him. The evidence of both medical expert witnesses is to the effect that a person experiencing a medial meniscal tear would have some symptoms. I have concluded, on the balance of probabilities, that the Appellant did not have a pre-existing meniscal tear in the right knee prior to the kitchen incident.
  1. [87]
    Therefore, the question before the Commission is whether the right knee injury occurred as a result of the kitchen incident – either during the same accident which led to the left knee injury or in the days, weeks or months subsequent to and arising from the kitchen incident. The Appellant's evidence was that he relied heavily on his right knee to move around following the left knee injury. Further, the evidence before the Commission was that the Appellant was using crutches and that it was some 3 to 6 months following surgery, until he was able to walk unaided. The Appellant also gave evidence that he was participating in a gym program recommended by his physiotherapist as a part of the rehabilitation of his left knee.
  1. [88]
    I understand Dr Cunneen's opinion was that without an acute injury to the right knee on either 27 March 2021 or in the months following, or an event involving swelling and an incapacity to weight bear on the right knee, it is not possible to determine when the injury occurred or that it was related to the incident of 27 March 2021.
  1. [89]
    I appreciate the difficulty Dr Cunneen had in this case. Dr Cunneen's experience of this type of injury has been that it involves an event leading to an injury which is characterised by swelling, pain and an inability to bear weight on the relevant leg. Dr Cunneen's view was that it was possible the injury was related to the 27 March 2021 incident or the aftermath of that incident, but that this was not probable.
  1. [90]
    However, having determined that Mr Wahala Thantrige was not suffering from the medial meniscal tear prior to the incident on 27 March 2021, and accepting that he had suffered a medial meniscal tear by November 2021 despite there being no 'acute injury' or the types of symptoms Dr Cunneen said he would expect to observe with such an injury, I do not find Dr Cunneen's evidence to be instructive in this case. It is clear that Mr Wahala Thantrige's presentation does not match the profile of the previous medial meniscal tears Dr Cunneen has observed.
  2. [91]
    Further, and noting the factual circumstances of this matter, I have trouble reconciling Dr Cunneen's evidence about the way a person with a medial meniscal tear would be incapacitated and unable to weight bear, potentially requiring a wheelchair (in the case of bilateral meniscal tears),[82] with his evidence that he has observed people who have had swelling and a sore knee but 'just put up with it' for some years.[83]
  1. [92]
    Associate Professor Nielsen's evidence addressed both the incident of 27 March 2021 and subsequent events. Associate Professor Nielsen accepted that the medial meniscal injury to the right knee could be caused by the factual circumstances described by Mr Wahala Thantrige. That is that either the tear occurred during the 27 March 2021 incident and was further aggravated during the subsequent events, or that a soft tissue injury was sustained to the right knee on 27 March 2021 and was aggravated during subsequent events either of which manifested in the medial meniscal tear at some point.
  1. [93]
    Associate Professor Nielsen's description and understanding of the type of injury sustained by Mr Wahala Thantrige appeared to include circumstances where an individual could suffer the injury without having the complete incapacitation described by Dr Cunneen. I am assisted by the evidence of Associate Professor Nielsen as it better reflects the factual circumstances of the 'problem in hand' and the way in which Mr Wahala Thantrige's right knee injury presented.
  1. [94]
    There is no evidence of any other incident occurring between 27 March 2021 and the date of the MRI confirming the right knee medial meniscal tear. The history of what occurred at that time commences with the incident on 27 March 2021 and on evidence before the Commission, all events that occurred thereafter were directly related to the accepted injury to the left knee.
  1. [95]
    Mr Wahala Thantrige was required to rely on his right leg in the immediate aftermath of the fall. He was then required to place more weight on the right leg following treatment to the left knee. He says that he complained of right knee pain and I accept his evidence that he was told it was probably as a result of the right leg compensating for the incapacity of the left leg. The activities Mr Wahala Thantrige was undertaking at the gym when he was experiencing further pain in the right knee were those prescribed to him by the physiotherapist as a part of his treatment following the accepted injury.
  1. [96]
    I also think it is entirely reasonable to suggest that both initially and as time went by in the immediate period following the kitchen incident, Mr Wahala Thantrige's focus (and that of his treating practitioners) was on his left knee injury. I accept that while Mr Wahala Thantrige felt pain in his right knee soon after the fall, the left knee injury was more acute and that it was as it began to heal that attention moved to the right knee pain.
  1. [97]
    While it may be the case that in the normal course of events, a medial meniscal tear gives rise to severe symptoms and an incapacity to weight bear on the affected leg, that is plainly not what has occurred here. The evidence is that Mr Wahala Thantrige has suffered a medial meniscal tear to the right knee despite there never being a time where he was completely unable to bear weight on that knee. There is no evidence that the right knee medial meniscal tear existed prior to 27 March 2021. There is no evidence of any other event unrelated to the accepted left knee injury which caused the right knee medial meniscal tear in the intervening period between 27 March 2021 and the diagnosis of the right knee injury.
  1. [98]
    Dr Cunneen stated that it was 'possible' that the injury occurred resulting from the kitchen incident and subsequent events but not 'probable'. Associate Professor Nielsen concluded that the right knee injury occurred resulting from the fall and/or the events subsequent to the fall. Taking both of these expert opinions into account, and having examined the available evidence, I am satisfied that it is probable the right knee injury occurred resulting from the incident on 27 March 2021 or, in the alternative, as a result of events directly related to the incident, or a combination of these two factors.
  1. [99]
    As a result, I am satisfied that Mr Wahala Thantrige's injury arose out of, or in the course of, employment and that employment is a significant contributing factor to the injury.

Orders

  1. [100]
    I make the following orders:
  1. Pursuant to s 558(1)(c) of the Workers' Compensation and Rehabilitation Act 2003 (Qld):
  1. the decision of the Respondent is set aside; and
  1. another decision is substituted, namely, that the Appellant's injury is one for acceptance
  1. Failing agreement between the parties, a decision on costs will be subject of a further application to the Commission.

Footnotes

[1] Appellant's Statement of Facts and Contentions filed in the Industrial Registry on 4 March 2024.

[2] TR1-9, LL43-48 – TR1-10, LL10.

[3] TR1-11.

[4] TR1-15, LL16-18.

[5] TR1-15.

[6] TR1-15, LL40-41.

[7] TR1-15.

[8] TR1-16, LL21-22.

[9] TR1-18.

[10] TR1-19.

[11] TR1-23, LL39-40.

[12] TR1-21, LL1-5.

[13] TR1-21.

[14] TR1-22.

[15] TR1-23.

[16] Respondent's Statement of Facts and Contentions filed in the Industrial Registry on 9 April 2024, [9].

[17] Ibid, [10](b)(i).

[18] Exhibit 3.

[19] Ibid, 5.

[20] Ibid, 9–10.

[21] Ibid, 13.

[22] Ibid, 10.

[23] Ibid, 13–14.

[24] TR1-28, LL34-37.

[25] TR1-28.

[26] TR1-29, LL11-14.

[27] TR1-28, LL6-22.

[28] TR1-28, LL27-30.

[29] TR1-29.

[30] TR1-30, LL15-20.

[31] TR1-30, LL35-44.

[32] TR1-31–TR1-32.

[33] TR1-31.

[34] TR1-31.

[35] TR1-31.

[36] TR1-32.

[37] TR1-33

[38] Exhibit 4.

[39] Exhibit 5.

[40] Exhibit 4, 3.

[41] Ibid, 4.

[42] Ibid, 7.

[43] Ibid, 8.

[44] Exhibit 5.

[45] TR1-43, LL29-33.

[46] TR1-43, LL35-37.

[47] TR1-44.

[48] TR1-45, LL30-33.

[49] TR1-46, LL14-18.

[50] TR1-46, LL30-31.

[51] TR1-47.

[52] TR1-48.

[53] TR1-47, LL45-48.

[54] TR1-49, LL4-10.

[55] TR1-49, LL22-25.

[56] TR1-49, LL48-49.

[57] TR1-49, LL48-49.

[58] TR1-50, LL38-48.

[59] TR1-52.

[60] TR1-53 LL5-7.

[61] TR1-53–TR1-55.

[62] TR1-55–TR1-57.

[63] TR1-56-57.

[64] Ribeiro v Workers' Compensation Regulator [2019] QIRC 203 ('Ribeiro').

[65] Ibid [43]–[55].

[66] Holtman v Sampson [1985] Qd.R 472, 474 (D.M Campbell, Macrossan and Thomas JJ) ('Holtman').

[67] Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 643, 645 (Dixon CJ, McTiernan, Kitto, Taylor and Windeyer JJ).

[68] Davidson v Blackwood [2014] ICQ 008, [17] (Martin J, President) ('Davidson').

[69]Nilsson v Q- Comp [2008] QIC 74; (2008) 189 QGIG 523, 526 (Hall P).

[70] Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538, 563, (Rich ACJ) ('Adelaide').

[71] Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190, 194 (Reynolds JA).

[72] Commissioner of Police v David Rea [2008] NSWCA 199, [8] (Handley AJA, Allsop P at [10] and Johnson J at [11] agreeing).

[73] Adelaide (n 69) 564 (Rich ACJ), 569 (Dixon J).

[74] Davidson (n 67) [19].

[75] Wiechmann v Lovering and WorkCover Corporation [1992] 59 SASR 203, 208 (Olsson J, Bray CJ, 204 and Mullighan J, 212 agreeing) ('Weichmann')

[76] Alsco Pty Ltd v VICA Mircevic [2013] VSCA 229, [95] (Robson AJA).

[77] Monroe Australia Pty Ltd v Campbell [1995] 65 SASR 16, 27 (Bollen J, Doyle CJ at 17 and Debelle J at 30 agreeing).

[78] Nutley v Workers' Compensation Regulator [2019] ICQ 002, [22] (Martin J, President).

[79] Holtman (n 66), 474.

[80] Wiechmann (n 75), 204 (Bray CJ).

[81] See paragraph [76] of these reasons for decision.

[82] See paragraph [59] of these reasons for decision.

[83] See paragraph [66] of these reasons for decision.

Close

Editorial Notes

  • Published Case Name:

    Wahala Thantrige v Workers' Compensation Regulator

  • Shortened Case Name:

    Wahala Thantrige v Workers' Compensation Regulator

  • MNC:

    [2025] QIRC 3

  • Court:

    QIRC

  • Judge(s):

    Pidgeon IC

  • Date:

    10 Jan 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
Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538
1 citation
Jump To
Cite 1 - (1940) 64 CLR 538
Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45
1 citation
Jump To
Cite 1 - [1940] HCA 45
Alsco Pty Ltd v VICA Mircevic [2013] VSCA 229
1 citation
Jump To
Cite 1 - [2013] VSCA 229
Commissioner of Police v David Rea (2008) NSWCA 199
1 citation
Jump To
Cite 1 - (2008) NSWCA 199
Davidson v Blackwood [2014] ICQ 8
1 citation
Jump To
Cite 1 - [2014] ICQ 8
Fernandez v Tubemakers of Australia (1975) 2 NSWLR 190
1 citation
Jump To
Cite 1 - (1975) 2 NSWLR 190
Holtman v Sampson [1985] Qd R 472
1 citation
Jump To
Cite 1 - [1985] Qd R 472
Monroe Australia Pty Ltd v Campbell (1995) 65 SASR 16
1 citation
Jump To
Cite 1 - (1995) 65 SASR 16
Nilsson v Q-Comp (2008) 189 QGIG 523
1 citation
Jump To
Cite 1 - (2008) 189 QGIG 523
Nilsson v Q-Comp [2008] QIC 74
1 citation
Jump To
Cite 1 - [2008] QIC 74
Nutley v Workers' Compensation Regulator [2019] ICQ 2
1 citation
Jump To
Cite 1 - [2019] ICQ 2
Ramsay v Watso [1961] HCA 65
1 citation
Jump To
Cite 1 - [1961] HCA 65
Ramsay v Watson (1961) 108 CLR 643
1 citation
Jump To
Cite 1 - (1961) 108 CLR 643
Ribeiro v Workers' Compensation Regulator [2019] QIRC 203
2 citations
Jump To
Cite 1 - [2019] QIRC 203
Cite 2 - [2019] QIRC 203
Wiechmann v Lovering and WorkCover Corporation [1992] 59 SASR 203
1 citation
Jump To
Cite 1 - [1992] 59 SASR 203

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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