QIRC Dismisses Richards’ Workers’ Compensation Appeal

The Appellant’s appeal was dismissed. The Commission held that there was insufficient evidence that the Appellant had suffered an injury to his shoulder in the form of an aggravation arising out of his employment, to which employment was a significant contributing factor. Accordingly, it concluded that the Appellant had not suffered an “injury” within the meaning of section 32 of the Act. 

The Commission considered evidence from a number of medical practitioners in assessing whether the Appellant had suffered an injury by way of aggravation during the contended period. These practitioners included the Appellant’s general practitioner, as well as specialists who consulted with or assessed the Appellant in connection with his accepted workers’ compensation statutory claim for his elbow. 

As identified by the Commission, the “difficulty for the Appellant’s case was that there was no reporting of a left shoulder injury at any time prior to 13 November 2018”. It was the Appellant’s evidence at trial that he had reported shoulder symptoms to his general practitioner, Dr Faridi, but that his general practitioner did not record this in his clinical notes. Dr Faridi provided a statutory declaration, asserting that he had “no independent recollection of [the Appellant] mentioning that he was suffering symptoms to his left shoulder back in August 2018”. The Commission concluded that the Appellant did not report left shoulder pain to his general practitioner in August 2018, citing the lack of contemporaneous evidence. 

The Commission also considered evidence provided by the Appellant’s treating orthopaedic surgeon, Dr Melsom. Dr Melsom provided seven reports prior to the Appellant’s lodgement of the rejected application for compensation, the first dated 8 November 2019. In a report dated 23 March 2021, Dr Melsom opined that while the Appellant’s degenerative changes in his left shoulder could have been aggravated by the alleged mechanism of injury, “it is somewhat unusual that he did not complain of pain in many subsequent consultations, and this was not documented in written form or that any examination of the left shoulder was performed during [the relevant] period.” 

Similarly, evidence was adduced from Dr O’Toole, an occupational and environmental physician who examined the Appellant on 1 February 2019 in respect of the left elbow injury. As highlighted by the Commission, the report produced by Dr O’Toole in relation to this examination noted that the Appellant had raised the tailgate issue in respect of the left elbow injury, but this report and a later one failed to make any reference to complaints of left shoulder pain. 

Likewise, a report by Dr Johnstone, an orthopaedic surgeon who examined the Appellant on 22 November 2019, recorded that the Appellant had mentioned the tailgate issue only in relation to left forearm extensor muscle pathology, not the left shoulder. It was the Appellant’s contention that he had mentioned his left shoulder symptoms to Dr Johnstone, but that Dr Johnstone had failed to record this. The Commission found this unlikely. Dr Johnstone’s evidence at the hearing echoed that of Dr Melsom, stating that while the alleged mechanism of injury was capable of causing an exacerbation of an underlying condition, he would have expected the Appellant to have complained of symptoms.  

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