Background
The Appellant was employed as a chef at a resort on K’gari (Fraser Island). On 27 March 2021, he injured his left knee and submitted a compensation claim, which WorkCover accepted.
In November 2021, the Appellant lodged a second claim for a right knee injury, which was rejected.
The Appellant alleged that the injury resulted from overcompensating on his right leg due to his left knee injury, particularly while “hopping” on uneven, sandy terrain between K’gari and Hervey Bay Hospital.
The Respondent argued that the right knee injury did not arise out of or during the Appellant’s employment related to the March 2021 incident, nor was employment a significant contributing factor. They considered the Appellant’s explanation a “matter of recent invention” and questioned his credibility, noting he had initially claimed the right knee injury also occurred on 27 March 2021, an assertion not supported by evidence, including the incident report.
Chef’s K’gari Knee Injuries and Workers’ Compensation Claims
The Appellant briefed Associate Professor Gary Nielsen to provide a report in support of his appeal.
As summarised by the Commission, Associate Professor Nielsen’s report contained the following relevant conclusions: –
- The Appellant sustained soft tissue injuries to both knees in a work-related incident on 27 March 2021;
- The Appellant’s soft tissue injury to the left knee caused an anterior cruciate ligament rupture and a medial meniscal tear; and
- The Appellant’s soft tissue injury to his right knee likely caused a medial meniscal tear in the work event of 27 March 2021, which was likely aggravated by the post-injury requirement for mobility through the right leg.
In oral evidence, Associate Professor Nielsen Professor Nielsen opined that whilst the right knee injury could have occurred during the initial fall, even if it did not, the subsequent reliance on that knee during mobility could have been sufficient to do so. He acknowledged the possibility of a pre-existing tear but maintained that the post-incident circumstances likely caused or aggravated the injury.
Dr Christopher Cunneen provided two reports to WorkCover Queensland, ultimately concluding that there was “insufficient medical information” to confirm that the Appellant had sustained a work-related injury to the right knee from the event on 27 March 2021. In oral evidence, Dr Cunneen opined that the post-incident ‘hopping’ the Appellant performed was an insufficient mechanism to be causative of the right knee injury.
Decision
The Commission accepted the Appellant’s evidence that his right knee had begun to be symptomatic within one to two days of 27 March 2021, as well as his evidence more generall in the period preceding symptom onset.
Turning to the question of whether the right knee injury arose from employment and whether employment was a significant contributing factor, the Commission noted that there was no evidence of a pre-existing right knee injury, either as contained in medical records or by way of witness testimony.
The Commission concluded that Dr Cunneen’s evidence was not “instructive” in this case, noting that the Appellant’s condition did not match the profile of previous medial meniscal tears Dr Cunneen had observed.
The Commission noted that there was no evidence of any other intervening act which may have caused the right knee meniscal tear, and accepted that the Appellant’s immediate focus following the incident was his left knee, along with the focus of his treating practitioners, explaining the lack of complaints in relation to the right knee for a period.
The Commission concluded that it was probably that the right knee injury occurred as a result of the incident on 27 March 2021, or in the alternative, as a result of the events directly related to the incident, or a combination of both. The Commission therefore concluded that the Appellant’s injury arose out of, or in the course of, his employment and that employment was a significant contributing factor to the injury.
The Commission substituted the Respondent’s decision with one that the Appellant’s claim for compensation was one for acceptance.
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