MacDonald v Workers’ Compensation Regulator: Appeal Partially Allowed

The commission was of the view that the appellant presented as an honest witness at the hearing, with there being no reason not to accept his evidence regarding the nature of the subject incident.

However, of difficulty for the appellant was the way in which the commission considered the evidence of Dr Cleaver, who was called by the appellant in support of his appeal. Dr Cleaver assessed the appellant on 27 September 2022 and diagnosed multiple musculoskeletal injuries said to have arisen from a workplace fall. These included aggravations of degenerative changes in the left shoulder resulting in adhesive capsulitis, cervical spondylosis with C7 radiculopathy, a right-sided L5-S1 disc protrusion, and aggravation of lumbar spondylosis at L4-5 and L5-S1. Dr Cleaver considered these diagnoses consistent with the reported mechanism of injury but did not confirm other claimed conditions such as traumatic brain injury, central pain syndrome, or right shoulder injury. His opinion was based partly on the Appellant’s account, which was later amended at the Appellant’s request to remove statements that overstated the severity and timing of early symptoms. Although Dr Cleaver accepted the alteration and confirmed

The commission first considered the alleged right shoulder injury. The respondent seized on this injuries omission from the s132A application, submitting that a negative inference in relation to its causal relationship to the subject incident should be drawn from this omission. The commission was not minded to accept such submissions. The commission did not consider Dr Cleaver’s inability to identify an injury to the right shoulder during his assessment of 27 September 2022 as precluding a conclusion that such an injury had in fact occurred. The commission made reference to the notes of Dr Scott, as well as notes pertaining to return to work restrictions imposed by Boral following the subject accident, in concluding that “[t] here is no doubt that the Appellant suffered symptoms related to pain in his right shoulder injury soon after the incident at work.”

Accordingly, the commission concluded that the appellant had discharged his onus to demonstrate that the right shoulder injury arose out of or in the course of his employment and that employment was a significant contributing factor to this injury.

With respect to the left shoulder injury, the commission opined that there was no contemporaneous evidence to support that this injury had occurred as a consequence of the subject incident. Similarly, the appellant’s spinal injuries were deemed to be the result of “constitutional age-related degenerative change”, consistent with evidence given by Dr Parr, an orthopaedic spinal surgeon called by the respondent. The head injury and psychiatric injury was also deemed to be unrelated to the subject workplace incident. In respect of the psychiatric injury, the appellant adduced evidence of Dr Mantzioris, who had opined that a psychiatric injury had arisen both as a result of the physical injuries, as well as the way in which the appellant’s application had been dealt with generally. Having concluded that the only physical “injury” was the right shoulder condition that had resolved within a matter of weeks of the subject incident, any ongoing psychological complaints must therefore relate to the latter. The commission therefore opined that the psychological injury was excluded by operation of s 32(5)(c) of the Workers’ Compensation and Rehabilitation Act 2003 (QLD).

The appeal was upheld in part, with the commission confirming that the appellant had sustained a right shoulder injury pursuant to s 32 of the Workers’ Compensation and Rehabilitation Act 2003 (QLD). The commission confirmed that no other injuries were otherwise sustained. Accordingly, the respondent’s decision was set aside.