Background

For all relevant times, the Appellant was employed as a tanker driver by Boral Resources (QLD) Pty Ltd (“Boral”).  

An incident occurred on 13 July 2019 in which the appellant slipped from a ladder and fell to the ground whilst descending from the top of his tanker at work. The appellant contended that the incident was reported to Boral’s Operations Manager and another individual on 15 July 2019, and that he later completed a written incident report that “disappeared”. The appellant attended upon his General Practitioner on 17 July 2019 and contacted WorkCover Queensland (“WorkCover”) on 30 July 2019 to report the incident, however, he did not make an application for compensation at that time.  

In October 2021, the appellant made an application pursuant to s 132A of the Workers’ Compensation and Rehabilitation Act 2003 (QLD) (“the Act”), seeking an assessment of permanent impairment of various injuries, including to the left shoulder, cervical spine (including bulging discs at various levels and compression of the left C7 nerve), thoracic spine, lumbar spine, head injury, and a psychiatric injury. This application was denied by WorkCover, a decision later confirmed by the respondent.  

Issue

As identified by the Commission, the issues to be determined were: –  

  • Whether the Appellant suffered an injury; 
  • If so, whether that injury arose out of or in the course of the Appellant’s employment; and 
  • If so, whether employment was a significant contributing factor to the injury.  

It was the appellant’s contention that the injuries detailed in his application, as well as a right shoulder injury not included in the original application, had all arisen as a result of the subject incident. The respondent submitted that the “overwhelming weight of both the contemporaneous records and expert medical opinion [did] not establish any injuries arising from the work incident.” 

Decision

The appeal was upheld in part. The Commission set aside the decision of the regulator, substituting with a decision that: –  

The appellant sustained a right shoulder injury in accordance with s 32 of the Act; and  

The other injuries outlined in the appellant’s application were not injuries sustained in accordance with s 32 of the Act.  

The appellant relied upon evidence given by Dr Neil Cleaver, who opined that the injuries to the left shoulder, cervical spine, and lumbar spine related to the subject incident. However, as the Commission identified, Dr Cleaver’s opinion was made in reliance upon an inaccurate history regarding the chronology of symptoms provided by the appellant. For this reason, the Commission did not consider his opinion to be reliable in relation to causation, affording greater weight to the weight of other medical practitioners whose opinions differed significantly from Dr Cleaver. 

The Commission was satisfied that the appellant had sustained a right shoulder injury in the subject incident, referencing the contemporaneous records of the appellant’s General Practitioner which recorded the appellant’s complaints of pain soon after the incident. The medical evidence recorded that the Plaintiff’s right shoulder pain had resolved entirely within five (5) weeks of the subject incident. This, however, was no impediment to the Commission concluding that the appellant had sustained a right shoulder injury in accordance with s 32 of the Act.  

Otherwise, the Commission was not satisfied that the evidence supported a determination that the appellant had sustained injuries to the left shoulder, spine, head, or a psychiatric injury. The Commission accepted evidence from Dr Adam Parr, who opined that the appellant’s various spinal conditions were a “result of constitutional age-related degenerative change[s].” Of difficult in relation to the alleged head injury was the temporal gap in the available medical evidence between the incident and the first record of the alleged condition, being some three (3) years. 

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