Background
The appellant was employed as an Effet Operator at the Farleigh Sugar Cane Mill, which was operated by his employer Mackay Sugar Limited. The appellant contended that he suffered a left knee injury through the course of his employment in or around November 2018 (“the incident”). Specifically, it was alleged that this injury was:
“a tear of the posterior horn of the medial meniscus, oedema (bruising) of the posterior portion of the medial condyle, and a subchondral fracture of the medial femoral condyle; or alternatively
a left knee injury in the form of an aggravation of pre-existing degenerative change”
The mechanism of injury was alleged to relate to an incident wherein the appellant stepped on a drain grate that gave way, leading to the appellant’s left leg to drop into the drain.
Although he experienced some symptoms following the November incident, the appellant did not immediately make an application for compensation. In or around June 2019, the appellant developed symptoms in his left knee whilst performing duties at the mill. An application for compensation was lodged subsequent to this. Whilst the application was accepted at first instance by WorkCover Queensland (“WorkCover”), it was later reversed on review by the Workers’ Compensation Regulator (“the Regulator”). An appeal of the Regulator’s decision was lodged but later abandoned.
The subject appeal related to a separate claim, however. On 23 August 2021, the appellant made an application pursuant to s 132A of the Workers’ Compensation and Rehabilitation Act 2003 (QLD), requesting an assessment of permanent impairment by WorkCover Queensland. This application was rejected by WorkCover, a decision that was later confirmed by the respondent.
Appellant’s November 2018 Knee Injury at Farleigh Sugar Cane Mill
For determination by the Commission was whether the appellant had suffered an “injury” within the meaning of s 32 of the Act. In order to do so, the Commission had to consider whether the alleged incident in fact occurred, and if so, whether it caused a personal injury to the appellant’s left knee.
Decision
In relation to the issue of whether the incident had in fact occurred, the respondent called evidence from the shift supervisor at the mill at the time of the alleged incident. This evidence was summarised by the Commission as predominantly being comprised of detailing his lack of recollection of an incident occurring, or alternatively speculation as to whether such an incident could have occurred unreported in the context of the procedures for reporting that were active at the time. The commission regarded the shift supervisor’s evidence as “an ambitious attempt (many years after the fact) to scaffold a narrative that he could not otherwise support from direct recollection”. The Commission ultimately expressed a preference for the evidence of the appellant, concluding that in “all probability” the incident had occurred as alleged in or around November 2018.
The Commission turned to considering whether the medical evidence supported a conclusion that the incident had given rise to an injury within the meaning of the Act. The Commission considered evidence from two Orthopaedic Surgeons; Dr Allan Cook, called by the appellant, and Dr Salman, called by the respondent. In summary, Dr Cook contended that the meniscal tear was likely caused by the incident, whist Dr Salman opined that the meniscal tear predated November 2018 and was therefore a pre-existing condition. Dr Salman conceded at the hearing that “if” the incident had occurred, then it was most likely that the appellant aggravated this chronic condition in same. The Commission accepted the evidence of Dr Salman and opined that this evidence supported the conclusion that the appellant had suffered a personal injury within the meaning of the Act.
The Commission briefly confirmed that the appellant’s injury had both occurred through the course of his employment and that employment was a significant contributing factor to the injury.
Having satisfied itself that the appellant had discharged his onus to prove that he had suffered an “injury” within the meaning of s 32 of the Act, the Commission found in favour of the appellant, setting aside the respondent’s decision and substituting it with one that the appellant’s application pursuant to s 132A of the Act was one for acceptance.
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