…whether appellant’s employment a significant contributing factor to aggravation
The appellant, a migrant who arrived in Australia in 2006, claimed workers’ compensation for a left shoulder injury – which was accepted – sustained on 19 October 2018 as a kitchenhand with Mater Misericordiae (Mater).
During the currency of his left shoulder claim, and after his return to work under a restricted work plan, the appellant provided WorkCover Queensland (WorkCover) with a medical certificate and advice of an injury to his right shoulder.
The appellant alleged his right shoulder injury arose between October 2018 and March 2019 as a consequence of performing certain work duties, and because he was favouring his left shoulder. As such, the right shoulder injury was characterised as an aggravation of the accepted left shoulder injury. Mater disputed that the appellant was performing the work duties alleged in the course of his restricted work plan.
In a May 2019 decision, WorkCover rejected the appellant’s application on the basis that the factual and medical information did not evidence a causal connection between the accepted left shoulder injury and the development of right shoulder bursitis. The appellant applied to the Workers’ Compensation Regulator (the regulator), who confirmed WorkCover’s decision. The appellant appealed to the Queensland Industrial Relations Commission.
Decision
- appeal dismissed
- decision of the regulator affirmed with the applicant to pay costs.
Ratio
As a de novo appeal, the appellant bore the onus to prove, on the balance of probabilities, that he sustained an injury within the meaning of the Workers’ Compensation and Rehabilitation Act 2003 (Qld).
The commissioner carefully examined the evidence and referred to the appellant’s answers under cross-examination, noting doubt at various points as to the appellant’s “sincerity” of his evidence and conduct, including:
- failure to disclose prior shoulder symptoms in his application for compensation and to several reporting doctors thereafter
- hesitance in recalling a Christmas 2018 overseas holiday
- changes to his evidence regarding the onset of his left shoulder pain and injury in October 2018 (notwithstanding that aspect of his claim was accepted and not under scrutiny)
- apparent failure to discuss the onset of his right shoulder pain with his wife (who was a nurse at Mater) and other household members.
The commissioner accepted the appellant suffered from a pre-existing degenerative right shoulder condition, and considered it more likely that any symptoms he suffered as at 11 March 2019 – when he sought to have his right shoulder condition accepted as part of his accepted left shoulder claim – stemmed from the degeneration, rather than as a consequence, of his left shoulder injury.
The appellant did not call any evidence to corroborate his, as to what duties he was performing prior to his right arm injury. Mater called several co-worker witnesses who could not recall seeing the appellant performing heavier tasks contrary to his restricted light duties work plan.
The medical evidence was divided as to whether the appellant ‘favouring’ his right shoulder to perform work duties, while recovering from his left shoulder injury, contributed to the aggravation of his pre-existing right shoulder degeneration. The commissioner noted that the appellant’s medical evidence contained a number of chronology errors and lack of identification of the work duties the appellant was performing.
The commissioner was satisfied that the temporal element of the right shoulder symptoms – coming to light after his Mater employment commenced – was established and, as a result, the appellant’s right shoulder condition arose in the course of his employment.
However, the commissioner was not satisfied, referring to concerns about the appellant’s consistency and credit, that the appellant’s employment was a significant contributing factor to the aggravation of his right shoulder condition.
The commissioner instead found, on the balance of probabilities, that: “employment was not a significant contributing factor to the aggravation because the aggravation was a result of natural progression of the pre-existing degenerative condition and would have occurred even if (the appellant) had not been employed at the Mater during the relevant period.”
This compensation law casenote appears courtesy of Travis Schultz & Partners (TSP), where the author, Stephen Hughes, is a Special Counsel. As part of the firm’s commitment to providing ongoing legal education, TSP practitioners review relevant judgments and prepare case summaries for the legal profession. A free searchable catalogue of compensation law casenotes is available at schultzlaw.com.au/case-summaries (registration required). The full version of the judgments can be found at austlii.edu.au.
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