Ameen v Workers' Compensation Regulator

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Ameen v Workers' Compensation Regulator [2022] QIRC 392
PARTIES:	Ameen, Mohammed (Appellant) v Workers' Compensation Regulator (Respondent)
CASE NO:	WC/2021/88
PROCEEDING:	Appeal against decision of Workers' Compensation Regulator
DELIVERED ON:	13 October 2022
HEARING DATES:	14 to 15 June 2022
MEMBER: HEARD AT:	Pidgeon IC Brisbane
ORDERS:	1. The appeal is allowed. 2. The decision of the Respondent of 7 June 2021 is set aside. *3. The Appellant's application for compensation under the Workers' Compensation and Rehabilitation Act 2003 (Qld) is accepted.* 4. The Respondent is to pay the Appellant's costs of the hearing, to be agreed or, failing agreement, to be subject to a further application to the Commission.
CATCHWORDS:	WORKERS' COMPENSATION – APPEAL AGAINST DECISION OF WORKERS' COMPENSATION REGULATOR – appeal against review decision of the Respondent – where the Appellant has an accepted WorkCover claim for a right shoulder injury – where the Appellant sustained a personal injury to his left shoulder – whether Appellant suffered an aggravation of a personal injury to his left shoulder – whether Appellant suffered an aggravation of a personal injury to his left shoulder out of, or in the course of, the Appellant's employment – whether Appellant's employment was a significant contributing factor to the aggravation of the left shoulder injury – appeal allowed.
LEGISLATION:	Workers' Compensation and Rehabilitation Act 2003 ss 11, s 32
CASES:	Briginshaw v Briginshaw (1938) 60 CLR 336 Goodman Fielder v WorkCover (2004) 175 QGIG 871
APPEARANCES:	Dr G Cross of counsel instructed by Patinos Personal Lawyers Ms L Willson of counsel directly instructed by the Workers' Compensation Regulator

Reasons for Decision
Introduction

Mr Mohammed Ameen (the Appellant) appeals the decision of the Workers' Compensation Regulator (the Regulator) dated 7 June 2021 which confirms the decision of WorkCover Queensland (WorkCover) to reject his application for compensation for a left shoulder injury in accordance with section 32 of the Workers' Compensation and Rehabilitation Act 2003 (the Act).
At the time relevant to the appeal, Mr Mohammed Ameen was employed by Grocers International Impex Pty Ltd as a butcher.

Mr Ameen has an accepted WorkCover claim for a right shoulder strain suffered on 18 June 2020. In support of that claim, Mr Ameen produced a medical certificate dated 24 June 2020. The medical certificate was signed by Dr Abdul Khondaker. The medical certificate identifies the circumstances of the event as follows:
Incident happened at work on 18 June 2020 at about 1.50pm. Slipped badly on the way out from freezer and accidentally landed on the [sic] both arms and injured on his right shoulder.
The Appellant concedes that at the initial consultation with Dr Khondaker, the emphasis was on the right shoulder and also concedes that Mr Ameen had a previous right shoulder rotator cuff repair at the Logan Hospital in 2019. The Appellant says that the emphasis on the right shoulder is understandable given the previous surgery to it.[1]
[1] Appellant's Statement of Facts and Contentions filed 8 September 2021, [5].
Mr Ameen's case is that his priority was initially his right shoulder and that he while he did have left shoulder symptoms, he did not consider those symptoms to be as bad as his right shoulder.[2]
[2] Ibid [7].
The Appellant points to the WorkCover record of 30 June 2020 which records that Mr Ameen told a WorkCover customer service representative that he sustained a right shoulder strain and had previous right shoulder surgery in 2019. The Appellant informed the WorkCover service representative that he was in the freezer putting away boxes, slipped, lost balance, and landed on both arms. The Appellant said that he reported the incident to his supervisor, Rakesh, and that a person called Mohammed Mamon was present.

On 9 September 2020, Mr Ameen consulted Dr Khondaker about his left shoulder. The Respondent says that in the notes of this consultation, Dr Khondaker records that the left shoulder injury was not work related.
The Appellant says that the WorkCover decision of 29 October 2020 concedes that on two occasions, Mr Ameen advised WorkCover that he extended both hands in the fall.
The Appellant had an ultrasound on the left shoulder and this was reported on 14 September 2020. The report identifies that Mr Ameen suffered a supraspinatus tendon rupture and appearances could reflect frozen shoulder.
Mr Ameen attended Sunnybank Physiotherapy which identified, in a report dated 29 October 2020, that Mr Ameen was having issues with his left shoulder.
On 16 September 2020, Mr Ameen spoke to a WorkCover representative and advised WorkCover that he went to see Dr Joshi for his right hand but he had pain in the left hand. Both hands went to the floor but he was concerned about his right shoulder more.
Mr Ameen spoke to WorkCover again on 21 September 2020 at 12:04pm and advised WorkCover that he had also injured his left shoulder but he was more worried about his right shoulder.
Mr Ameen again spoke to WorkCover on 21 September 2020 at 4:04pm and again advised that the left shoulder was also injured at work during the fall where he put out both hands.
The Appellant says that the following conclusions can be drawn:
(a)       In the fall in question, the Appellant put out both arms;
(b)       The initial concern was the right shoulder which was subject of previous shoulder surgery;
(c)       The Appellant contends that he always had the left shoulder pain from the fall but concentrated on his right shoulder;
(d)       There is no evidence of any other event occurring subsequent to the fall which could precipitate the left should symptoms.
In response to the above, the Respondent contends:
(a)       the Appellant had a fall on or about 18 June 2020;
(b)       the Appellant sustained an accepted injury of the right shoulder in that incident;
(c)       the Appellant has a pre-existing left shoulder injury and symptomology;
(d)       the Appellant was involved in a motor vehicle accident on 20 October 2020;
(e)       the Appellant made a claim against Suncorp CTP insurance for injuries sustained in the MVA, including injury to his left shoulder.
Regarding Mr Ameen's pre-existing left shoulder injury, the Appellant accepts that Mr Ameen had reported left shoulder symptoms to his General Practitioner between 5 August 2014 and 13 September 2017, prior to his employment at Teys Brothers.[3] However, the Appellant says that Mr Ameen had no symptoms subsequent to 13 September 2017 until his fall on 18 June 2020.[4]
[3] Exhibits 5 and 6.
[4] Ibid.
Scope of this Appeal

It is accepted that the Appellant was a "worker" within the meaning of section 11 of the Act.
The Regulator accepts that Mr Ameen sustained a personal injury to his left shoulder based on the report of Dr Mark Ready, Specialist Radiologist, dated 22 April 2016 and from a report of Dr Patrick Bergin, Specialist Radiologist, dated 14 September 2020.
The Regulator says that the personal injury did not arise out of the Appellant's employment and that employment was not a significant contributing factor to the injury.
The questions to be answered in this appeal are:
1.Did Mr Ameen's left shoulder injury arise out of or in the course of his employment?[5]
2.Was Mr Ameen's employment a significant contributing factor to his left shoulder injury?
[5] Workers' Compensation and Rehabilitation Act 2003 (Qld) s 32.
The Regulator says that fundamentally, the Commission must be moved to the point of persuasion to make a finding in Mr Ameen's favour. The Regulator points to the notion of satisfaction on the balance of probabilities set out by Dixon J in Briginshaw v Briginshaw:[6]

The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty…Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal…Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgement if the question was whether some act had been done involving grave moral delinquency…This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained.

[6] Briginshaw v Briginshaw (1938) 60 CLR 336, 361-3.

The Regulator argues that there is a lack of evidence of the Appellant reporting his pain and of medical evidence before the Commission to establish that there was a connection between the fall on 18 June 2020 and the pain in his left shoulder. The Regulator submits that there is insufficient evidence to conclude, on the balance of probabilities, that any injury that Mr Ameen sustained to his left shoulder was causally connected to the incident on 18 June 2020.
The Regulator says that the evidence demonstrates that there was a lag time of 12 weeks from the fall incident before the pain in the left shoulder, that the ultrasound reports of 2016 to 2020 show no discernible difference and that on balance, Mr Ameen has been unable to discharge the onus of proving on the balance of probability that he has an injury (including an aggravation); or that the injury arose out of the event on 18 June 2020 in circumstances where employment was a significant contributing factor.
The Appellant submits that the lack of reporting by Mr Ameen of any left shoulder symptoms in the period between 13 September 2017 when he was doing very physical work means that the assertion that left shoulder pain came on naturally around September 2020 lacks merit.

Legislation

The relevant part of the legislation is set out below:

32 Meaning of injury

(1) An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.
(2) However, employment need not be a contributing factor to the injury if section 34(2) or 35(2) applies.

(3) Injury includes the following—
…
(b)an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation—

(i) a personal injury other than a psychiatric or psychological disorder;
(ii) a disease;

(iii) a medical condition other than a psychiatric or psychological disorder, if the condition becomes a personal injury or disease because of the aggravation.

Witnesses

For the Appellant:
·Mr Mohammed Ameen;
·Ms Regina Chetty;
·Mr John Riley - Physiotherapist; and
·Dr Bruce Low - Orthopaedic Surgeon.

For the Respondent:

·Dr Abul Hashem Khondaker - General Practitioner

Mr Ameen's evidence

Mr Ameen said that he was employed as a meat worker with Teys Brothers doing halal slaughtering between 2010 and 2014.[7] Mr Ameen said that the work was very heavy work and that he had some right shoulder symptoms when he was using the jigsaw to cut the heads and the bones.[8] Mr Ameen said that he experienced some symptoms in his left shoulder and attended upon Dr Khondaker in 2014, 2015 and through until 22 April 2016.[9] Mr Ameen also attended the doctor regarding left shoulder pain on 15 December 2016 and 13 September 2017.
[7] T1-9 ll33-42.
[8] T1-10 ll16-22.
[9] T1-10 ll35-37.
Mr Ameen described the work he was doing from 19 March 2018 working for Groceries International Impacts Pty Ltd. Mr Ameen was a butcher and said that the work involved displaying and cutting meat, supplying meat to the canteen, and supplying customers with whatever they wanted. In reference to the volume of his work at Groceries International Impacts Pty Ltd, Mr Ameen said he would 'do up to 5 tonne a week'. He said the work was 'harder' than his work at Teys Brothers and that he also had to get lambs out from the freezer which involved packing.[10]
[10] T1-11 ll8-36.
Mr Ameen was taken to a schedule of his attendances on Dr Khondaker and agreed that he had no symptoms reported in his left shoulder between 13 September 2017 and the date of his fall on 18 June 2020.[11]
[11] T1-11 ll44-46; Exhibit 5.
Mr Ameen injured his right shoulder when he was kicked by a goat on 27 February 2019 and he required an operation of the shoulder in June 2019.[12] Following that surgery, he had significant time off work, returning to work in March 2020.[13]
[12] T1-12 ll1-10; Exhibit 5.
[13] T1-12 ll18-26.
Following his recovery from the surgery, Mr Ameen returned to work and had the fall on 18 June 2020.
Mr Ameen provided the following description of the 18 June 2020 fall:
I went in the freezer. It's more or less 18/20 degrees. I went couple of yards in and just picked the box up and I was turning around and I slipped on the freezer, it was moisture and wet and I threw the box. I landed on both arms, stretched and because of my injury, previous, I went to save and that's what I landed on my both arms.[14]
[14] T1-13 ll32-37.
Mr Ameen said that he attempted to save his right shoulder because the doctor told him that following the operation, he could not have any more pressure with the tendons. He said he was very concerned because he is right-handed.[15]
[15] T1-13 ll39-42.
Mr Ameen said that following the fall, he had symptoms in both shoulders. Mr Ameen said that he reported to Dr Khondaker the next day, on 19 June 2020, that he had symptoms in both shoulders but that he was concerned about his right shoulder.[16] Mr Ameen also said that each time he attended on Dr Khondaker, he mentioned his left shoulder pain.[17]
[16] T1-15 ll13-23.
[17] T1-16 ll1-11.
Mr Ameen recalled that Dr Khondaker referred him for physiotherapy with Mr Riley and that on 1 September 2020, he attended upon Mr Riley and explained to him that he had both left and right shoulder pain.[18]
[18] T1-16 ll23-28.
On 9 September 2020, Mr Ameen attended upon Dr Khondaker again and requested an ultrasound on his left shoulder because 'it was so painful and I can't take the pain'.[19]
[19] T1-16 ll34-38.
Mr Ameen said that between the fall on 18 June 2020 and when he asked for the ultrasound on 9 September 2020, the pain was increasing. He said that on the day after the accident, on a scale of nought to ten, the pain was 'Eight. Six – eight' and that by the time he asked Dr Khondaker for the ultrasound, he would rate the pain as a ten and it had become more painful over time.[20]
[20] T1-16 l45 – T1-17 l8.
Mr Ameen says that he was involved in a motor vehicle accident on 20 October 2020 where his left shoulder symptoms increased.[21]
[21] T1-17 ll22-25.
Mr Ameen was taken to the notes of Dr Khondaker at the visit of 9 September 2020 where Dr Khondaker wrote 'it's not a work related injury'. Mr Ameen said that he told Dr Khondaker 'this has been done at work and I haven't been – worked since then. And I need to fix this.'[22] Mr Ameen recalled that Dr Khondaker said 'I – I can't put it in work related, because I don't want to go attend the court.'[23]
[22] T1-18 l1-4.
[23] T1-18 ll6-7.
Mr Ameen was asked if he recalled the visit to Dr Khondaker on 16 September 2020 where Dr Khondaker recorded a long discussion about left shoulder injury, left shoulder pain and recorded that it is not a work-related injury and that Mr Ameen was requesting an ultrasound guided cortisone injection. Mr Ameen recalled that visit and said that he had again gone to Dr Khondaker to ask the same question. Mr Ameen did not recall that consultation being long.[24]
[24] T1-18 ll10-35.
Mr Ameen said that during the period from 18 June 2020 until 9 September 2020, he treated himself for his left shoulder by applying ice, using the product Deep Heat, and strapping. He said that he put in an application for workers' compensation on the left shoulder as well.[25]
[25] T1-19 ll21-27.
Mr Ameen said that he continues to take medication for his left shoulder but that he still feels pain in his left shoulder.[26]
[26] T1-20 ll9-20.
Mr Ameen says that Dr Khondaker failed to record how Mr Ameen fell or that he suffered pain in both shoulders. Mr Ameen said that he reported the way that he fell to Dr Khondaker and that he hurt his left shoulder and disagreed that he did not tell Dr Khondaker it was sore until 9 September 2020. Under cross-examination, Mr Ameen maintained that he had told Dr Khondaker about his left shoulder and that while Mr Ameen was more worried about his right shoulder, he had told him about the pain in the left shoulder as well.[27]
[27] For example: T1-22 ll10-47; T1-26 l45-T1-27 l2.
It was put to Mr Ameen that he did not report to WorkCover that he had injured both shoulders, or his left shoulder as well as his right shoulder. Mr Ameen's answer was confusing. At first he said that he 'didn't say it to WorkCover'[28] but he then said that he said to them 'right and left'.[29] Mr Ameen was taken to the records of his interactions with WorkCover where there is a notation on 17 September 2020 that Mr Ameen 'would like to discuss left shoulder'. Mr Ameen disagreed that this was the first time that he had spoken to WorkCover about the left shoulder and said that he told his employer on the day of the fall that he had hurt his left shoulder.[30]
[28] T1-30 l17.
[29] T1-30 l27.
[30] T1-31 ll1-15.
In re-examination, Mr Ameen was taken back to the WorkCover records where there was a notation that Mr Chand, his Manager, told WorkCover that Mr Ameen was continuing to say that his left shoulder was injured when he had the fall at work. Mr Ameen agreed that he had told his employer that he had injured both shoulders in the fall.[31]
[31] T1-35 ll1-10.
The WorkCover Queensland Communications Report recorded on page 26 that Mr Ameen said that he had also injured his left shoulder but was more worried about the right shoulder. Mr Ameen agreed that he had said that.[32]
[32] T1-35 ll15-22.

Ms Chetty's evidence

Ms Chetty is Mr Ameen's spouse.
Ms Chetty gave evidence to the Commission supporting Mr Ameen's evidence that he suffered left and right shoulder symptoms immediately after the fall but said that he was more concerned with his right shoulder where he previously had surgery.[33]
[33] T1-67
Ms Chetty was asked if Mr Ameen continued to complain about his left shoulder and his right shoulder over the next few weeks and months and she said that he did.[34]
[34] T1-67 ll44-45.
The Regulator says that it was clear that Ms Chetty did not have any independent recollection of the date of the fall and that the method of questioning her takes away any weight her answers have with respect to determining when Mr Ameen started to experience pain in the left shoulder.

Dr Khondaker's evidence

Dr Khondaker's treatment notes were tendered.[35] The notes show that Mr Ameen attended the surgery on Friday 19 June reporting right shoulder pain following a fall. There is a further entry for 24 June 2020 with reference to the right shoulder and the fall at work on 18 June 2020. There are further visits on 6 July 2020, 13 August 2020 and 31 August 2020 regarding the right shoulder. On 9 September 2020 there is an entry regarding pain in the left shoulder. That entry specifically records, 'it's not a work related injury'. On 16 September 2020, there is a further entry regarding the 'new claimed of LT shoulder injury, the notes state 'it's not a work related injury'.
[35] Exhibit 6.
The Appellant says that it would appear that the entries for 10 September 2020 and 16 September 2020 were not with Mr Ameen but were telephone conferences with WorkCover.[36]
[36] Exhibit 10, p 32-33.
Dr Khondaker said that he would make notes about a patient immediately after seeing them.[37]
[37] T2-5 l7-8.
Dr Khondaker was taken to his notes following the consultation on 19 June 2020 and asked if he had and independent recollection of that consultation. Dr Khondaker said:
Nineteenth of June, Ameen came with the right shoulder pain, history of recent fall injured on his right shoulder, and his vital signs, like blood pressure was normal, pulse was normal, and it is a specific the shoulder pain. So I examine the shoulder. Shoulder was not solid. Tender, restricted movement. Right shoulder pain. So then I say for the patient, giving some painkiller, analgesic, and I note that day only shoulder pain – and giving that some analgesic, Panadeine Forte. He was asking that Panadeine Forte. It had codeine which is a strong painkiller.[38]
[38] T2-5 l42 – T2-6 l2.

Dr Khondaker said that on 19 June 2020, Mr Ameen only mentioned his right shoulder. Dr Khondaker was taken through his notes to 9 September 2020 and asked to recall that consultation where Mr Ameen reported the pain in his left shoulder. Dr Khondaker appeared to say that Mr Ameen was asking for treatment but Dr Khondaker had told Mr Ameen that WorkCover will not pay for it. Dr Khondaker said that Mr Ameen told him the injury was not work related. Dr Khondaker also said that he told Mr Ameen:
…I told I am writing the WorkCover related, then you can – if you – that then you will get that Medicare. I will write that. If I write the WorkCover related, then need to be WorkCover approval and everything. But I can't do that things. It is the new claim, so you can negotiate with the WorkCover if you are telling all your injuries. I am telling that a specialist, a specialist [indistinct] I am the – we maintain that [indistinct] so they can tell you what advice. You can follow their advice.[39]
[39] T2-10 l8-14.
Dr Khondaker said that he did not provide a workers' compensation certificate for Mr Ameen's left shoulder.[40]
[40] T2-10 l16-18.
Dr Khondaker's evidence established that the practice is very busy and that he works five days per week. He would see a patient every ten minutes, except for cases such as mental health consultations or if someone had booked a longer consultation.[41] Dr Khondaker said that in some cases, the patient is seen for less than ten minutes, for example, where the patient seeks a blood pressure check and a prescription. Dr Khondaker said that some patients could be seen in six minutes but that was the minimum time for a short consultation. There was some discussion about how many consultations Dr Khondaker may have had in the two-year period since 19 June 2020 when he saw Dr Ameen. The evidence established that Dr Khondaker has undertaken some thousands of consultations in that time.
[41] T2-11 – T2-12.
The suggestion put by Mr Ameen's representative was that Dr Khondaker could not possibly have an independent recollection of the consultation he had with Mr Ameen on 19 June 2020. Dr Khondaker appeared to be reliant on his notes when answering questions during his evidence. Dr Khondaker agreed that there was no record of the mechanism of the injury or a description of the fall in his notes.[42] Dr Khondaker said that he wrote about the fall in the WorkCover certificate.[43]
[42] T2-19 ll16-18.
[43] T2-16.
Dr Khondaker was asked whether a fall forward onto both arms could potentially injure both of the shoulders and answered, 'So it is difficult for me. So it is [indistinct] that why I give the referral to that specialist, the orthopaedic [indistinct] specialist and orthopaedic – so according to that, they know better than me, so it is difficult. I can't say any comment regarding this.'[44] Dr Khondaker agreed that an orthopaedic surgeon would be in a better position to evaluate the mechanism of the injury.[45]
[44] T2-18 ll16-21.
[45] T2-18 l45 – T2-19 l1.
The following exchange with Dr Khondaker occurred during cross-examination by the Appellant's representative:[46]
[46] T2-19 l35 – T2-20 l5.
Dr Cross:…You also didn't record, I suggest to you, that Mr Ameen said that he had injured his right – both his left and right shoulder, but he was concerned more for his right shoulder as he had had a previous operation the year before. A yes or a no?
Dr Khondaker: And he didn't [indistinct] he didn't tell me.
Dr Cross: I suggest to you that he did tell you that he had pain to both shoulders, but he was more concerned with his right---?
Dr Khondaker: He is more concerned of the right. He told [indistinct] pain.
Dr Cross: In that he has…?
Dr Khondaker: But I don't know that is what that - he was – the job was – was injured in the workplace, so that's why he [indistinct] so he didn't complain that things, otherwise they will look – I don't know, I cannot given any [indistinct]
Dr Cross: Doctor, I suggest you left out information in the consultation because you only had 10 minutes with him. You left out the mechanism of injury and you also left out that he told you he had symptoms in his left shoulder but was more concerned about his right shoulder?
Dr Khondaker: ---[indistinct] the right shoulder. That's what I have written [indistinct].
The Appellant says that it appears that Dr Khondaker does not keep comprehensive notes and that there is no record in the notes of the comments made to WorkCover. Dr Khondaker's notes do not record the precise mechanism of the injury.
Dr Khondaker gave evidence that he wrote down reported issues from his patients and that Mr Ameen did not report any pain in his left shoulder in nine consultations between 19 June 2020 and 9 September 2020.
Dr Khondaker said that on 9 September 2020 he (Dr Khondaker) told Mr Ameen that the left shoulder injury was not a work-related injury and he recalls that Mr Ameen agreed with him.
Dr Khondaker referred Mr Ameen for a left shoulder ultrasound and recommended physiotherapy for the left shoulder on 29 September 2020.
The Regulator says that there was no left shoulder pain documented in Dr Khondaker's notes until 9 September 2020, over 10 weeks after the fall and that the first mention of the left shoulder to WorkCover was 17 September 2020, despite the first contact Mr Ameen had with WorkCover being 30 June 2020.[47] The Regulator says that this is enough evidence to form a conclusion that there was no acute injury or shoulder symptoms until that time.
[47] Exhibit 10.

Dr Low's evidence

Dr Low, Orthopaedic Surgeon, provided a report dated 10 June 2021,[48] and there is a file note signed by him on 20 May 2022.[49] The Appellant draws attention to the following:
However, his left shoulder which he says was injured in the same injury on 18 June 2020, when he fell onto the cold room floor. It was too painful to continue.
[48] Exhibit 1.
[49] Exhibit 2.
Dr Low made the following diagnosis:
Diagnosis
Aggravation of a pre-existing right shoulder rotator cuff tear with surgery about a year prior from a work-related fall.
I also believe there has been an aggravation of pre-existing asymptomatic left shoulder radiological full-thickness tear in the left rotator cuff in the accepted workplace incident. Left shoulder highly symptomatic and unlikely to improve if not treated.[50]
[50] Exhibit 1, p 4.
The file note signed by Dr Low says:

….
Dr Low stated that he believed Mr Ameen suffered a left shoulder injury in the accident in question as well as the right shoulder. The left shoulder was asymptomatic even though in 2016 an ultrasound demonstrated that there was a full thickness tear. There was no other event identified that could explain the left shoulder being symptomatic and the complaints of left shoulder pain were well prior to a motor vehicle accident on 20 October 2020.

Dr Low noted that there were numerous complaints of left shoulder symptoms subsequent to the fall on 18 June 2020 and prior to the motor vehicle accident in question. There was no other reason for the left shoulder to have become symptomatic.
Dr Low commented that once the right shoulder, which had previous surgery was under control and the left shoulder was not improving, it was then that Mr Ameen concentrated his efforts and his complaints to the physiotherapist about the left shoulder.
Dr Low noted that there would have been no need for an examination of the left shoulder by the physiotherapist unless Mr Ameen had commented that there were difficulties with it.
Dr Low confirmed the mechanism of injury was consistent with causing injuries to both shoulders. Mr Ameen had landed on both outstretched arms.
I asked Dr Low what the diagnosis of the left shoulder condition was. Dr Low commented that Mr Ameen had a tear in the rotator cuff which was pre-existing and he had most likely extended that tear.
I asked Dr Low if Mr Ameen was sent back to suitable duties or full duties, would have aggravate the extended rotator cuff tear? Dr Low commented it would aggravate it and make it more symptomatic.
Dr Low reinforced that in his view the injury suffered was highly consistent with the mechanism of injury "totally consistent".
Dr Low commented that he had been an orthopaedic surgeon for over forty years and he was of the view that Mr Ameen clearly injured his left shoulder and right shoulder in the fall.
Dr Low commented there was no logical explanation as to why the left shoulder became symptomatic except for the fall in the cold room which aggravated the previous left shoulder tear which was asymptomatic prior to the fall.
I asked Dr Low would he be able to assess the impairment of Mr Ameen's left shoulder and what contribution did the fall have.
Dr Low commented that he would assess that 50% of the current impairment was related to the pre-existing tear and 50% related to the fall. [51]

[51] Exhibit 2, p 2-3.

In his evidence-in-chief, Dr Low said, 'It's more probable than not that the fall on that date was what's caused the left shoulder to become symptomatic, in my opinion, yes.'[52]
[52] T1-40 ll1-6.
Dr Low's evidence at the hearing was that in his 40 years of experience, it was not unusual for someone to have some pain but to be more worried about another area.[53] Dr Low said, 'it's not unusual at all to be focused on one area, and once that area's been neutralised you then more focus on the other area that was subclinical.'[54]
[53] T1-40 ll15-21.
[54] T1-40 l18-21.
Under cross-examination, Dr Low was asked his opinion as to how long it would take for pain to develop after suffering an acute injury in the fall. Dr Low said 'Well, that depends on the severity of the injury. There could be some minor pain or major pain. It could be straight away or…It could be a month later. It could be overshadowed by, as I said, the right shoulder.'[55]
[55] T1-42 ll7-17.
Dr Low said that when the onset of pain would occur depended on 'many modifiers' including the right shoulder, painkillers Mr Ameen was taking, the lack of mobility, not using his left arm, not being active due to being focused on the right shoulder.[56]
[56] T1-42 ll19-31.
It was put to Dr Low that if there was a period of 10 weeks where there is no report of pain after the fall, the reason for Mr Ameen's pain may have been unrelated to the fall, completely. Dr Low agreed that was possible but said,
I saw the history and there was no other incidents apart from the fall and he had no pain for three or four years before and he had a fall. I would say that the fall, on the balance of probabilities, is likely to have caused an acute on chronic tear and de-functioned his shoulder because now he has got very little function in the left shoulder and chronic pain. That would – that would be the conclusion I came to. Plus I came to another conclusion and it was further aggravation of the motor vehicle accident later on.[57]
[57] T1-45 ll10-17.
While Dr Low had said that in Mr Ameen's case, the aggravation could have been caused by any movement of the left arm, he maintained that on the balance of probability, the dominant cause of the left shoulder dysfunction was the fall.[58]
[58] T1-45 ll25-38.
When asked by the Respondent during cross-examination if he would accept that the 'left shoulder pain wasn't noticed initially because it wasn't there', Dr Low said, 'No, I don't think that's got anything to do with it…I don't think that argument stands up one little bit.'[59]
[59] T1-50 ll1-7.
It was put to Dr Low that he was 'really giving evidence as an advocate for this Mr Ameen'. He replied, 'I'm giving – I'm not giving – well, I'm giving evidence that's been asked of me, that's all.' In re-examination, Dr Low confirmed that he had prepared his initial report for WorkCover and had been chosen by them as a specialist to provide an examination of Mr Ameen. He said that he is 'certainly not an advocate for the patient or the client. I wouldn't even know who he was. I'll never see him again in my whole life. I'm an advocate for the truth.'[60]
[60] T1-51 ll12-20.
The Regulator says that Dr Low's evidence was that there is no imaging showing a specific injury as Mr Ameen had an ultrasound in 2016 showing a complete tear of the supraspinatus tendon in 2016.[61] The injury Mr Ameen would have sustained at that time would have been microscopic and there was no 'spectacular' or acute injury.
[61] Exhibit 7.
The Regulator says that Dr Low changed his opinion multiple times during cross-examination about what could have caused the pain in the left shoulder and stated that his opinion was speculative and a 'best guess'. Further, the Regulator says that Dr Low's opinion was based on the fact that there was some temporal connection between the fall and the left shoulder pain. With regard to the comment that his opinion was his 'best guess possible', Dr Low said, 'Well, that's what medico-legal work is half the time. It's the best guess possible. I've analysed all the facts, I've given you all the knowledge. I've assessed it based on range of motion. He can hardly lift his arm up. He's got 40 per cent flexion, about 40 per cent abduction. It's obviously a pre-existing problem that's been aggravated, therefore if you're doing an assessment based on AMA5, you apportion for previous problems and apportion for subsequent problems. He's got a motor vehicle accident, he's had a previous problem. He's had a fall. So, the best that I could do would be to take 50 per cent off the impairment. The impairment obviously is excessive, based on the range of motion. That's how you do medico-legal reports. They're not a hundred per cent scientific or completely accurate, but that's the best we have.'[62]
[62] T1-50 l34 – T1-51 l2.
The Regulator says that Dr Low also conceded that given the extent of the pre-existing damage in the left shoulder, increased pain could be caused by 'rolling over in bed' and use of the left arm and many other causes including the natural history of symptoms involved in rotator cuff injury. Although I note that Dr Low said 'it's a matter of degree and the degree of the fall, in my opinion, is more significant than just lifting up a cup of coffee'.[63]
[63] T1-50 ll16-23.
Dr Low said that Mr Ameen's focus would have been on his right shoulder injury and that pain relief would have 'masked' the pain, meaning that it did not matter that Mr Ameen did not report the pain earlier. The Regulator says that Mr Ameen's case was that he was in pain, not that the pain was masked. However, I note that Dr Low also said that Mr Ameen's focus on his right shoulder may have meant he was more focused on it than his left.
The Regulator says that while in re-examination, Dr Low said that he maintained his opinion that the fall was a significant contributing factor, his opinion does not carry any weight and is not persuasive.

Mr Riley's evidence

Mr Riley provided a report dated 24 February 2021,[64] treatment notes,[65] and a file note dated 12 April 2022.[66]
[64] Exhibit 3.
[65] Exhibit 4.
[66] Exhibit 3.
Mr Riley's evidence was that he first examined Mr Ameen on 1 September 2020 and that Mr Ameen gave a history of slipping and falling on both arms on 18 June 2020. Mr Riley said that if not at the first visit, it was very early on that Mr Ameen complained that he had issues with both shoulders from the fall but that WorkCover had only approved treatment for the right shoulder.
Mr Riley said that it was understandable that if you slip over on both of your arms outstretched, you were most likely to injure both shoulders and noted that it was entirely consistent to injure both shoulders in such a fall.
The Appellant points out Mr Riley's file note dated 12 April 2022 says:[67]
Mr Riley stated that on the first consultation he did the test on the left shoulder so there must have been some comment in regard to the left shoulder on that occasion…
[67] Exhibit 3. Mr Riley's reports are Exhibits 3 and 4.
Mr Riley agreed that the remark in the file note was correct.[68]
[68] T1-58 ll6-8.
The Regulator says that Mr Riley treated Mr Ameen for his right shoulder only and was not clinically interested in any other non-compensable injury. Mr Riley said that he was unaware of the pre-existing ultrasound of 2016 demonstrating injury and that he could not remember with any specificity when Mr Ameen reported pain in the left shoulder.
The Regulator says that Mr Riley purposely avoided and did not assess the left shoulder or document the circumstances or history with respect to the left shoulder on his first consultation on 1 September 2020 and it was not until 29 September 2020 that he makes a notation in his records regarding the left shoulder.
Mr Riley confirmed that his focus was on the right shoulder injury which was compensable by WorkCover. He said that he was aware of the left shoulder injury and that there had been discussion about whether the left shoulder injury would be approved for treatment under WorkCover or not. On 24 September 2020, Mr Riley made a notation that Mr Ameen was unable to rest his right shoulder fully. He explained that this meant that:
because his left shoulder had some issues, was having issues when I was trying to get him to avoid certain aggravating activities with his right, it was difficult for him because he had both shoulders were causing a problem. So just daily living and things like that. He wasn't able to use his left shoulder to rest the right one because the left one was causing issues.[69]
[69] T1-61 ll41-45.
Mr Riley said that pain would be the main indicator of when any aggravation to the left shoulder occurred.
Under cross-examination, Mr Riley said that he did not assess Mr Ameen until some months after the fall and accepted that repetitive activity could have caused the injury. When asked if he definitively knew which of repetitive use or the fall had caused the injury, Mr Riley said, 'Well, no. I can't. I can't. I can, in my personal, professional opinion, say that the fall was highly likely to cause this sort of problem for him.'[70]
[70] T1-64 ll14-17.
When asked if age-related changes or the natural history of the left shoulder could have caused Mr Ameen's pain, Mr Riley said, 'I can't comment on that. I'm not too – all I can keep reiterating is a fall on both arms: something traumatic like that onto concrete floors is highly consistent with the type of injury that Mr Ameen is complaining of.'[71]
[71] T1-64 ll25-39.

Finally, in re-examination, Mr Riley agreed that if Mr Ameen's left shoulder had been asymptomatic for almost two years and nine months, it was more probable that the fall was causative of the symptoms to the left shoulder.
The Regulator says that given the lack of information and foundation in coming to a conclusion, Mr Riley's evidence carries no weight.

Consideration

It is not in dispute that Mr Ameen fell on 18 June 2020 after slipping on ice while carrying a carton on his way out from the freezer and that he fell forward, landing on both of his arms. It is clear that Mr Ameen has an approved claim for the injury to his right shoulder.
It is also not disputed that Mr Ameen has a left shoulder injury. The question is whether I accept that, on the balance of probabilities, the left shoulder injury diagnosed in September 2020 was caused by the fall or by some other event.
I have considered the evidence provided by Mr Ameen's spouse, Ms Chetty. Ms Chetty was not originally listed to provide evidence at the hearing, however the Appellant called her as a witness following a suggestion made to Mr Ameen by the Respondent's representative that his wife would not support this version of events. Ms Chetty attended the Commission and said that Mr Ameen told her about the fall on the day that it happened. Ms Chetty said that Mr Ameen had complained to her of both left and right shoulder pain following the fall and in the weeks and months that followed.[72] Ms Chetty rejected the suggestion put to her by the Respondent's representative that Mr Ameen's shoulder did not become sore until weeks later. Ms Chetty agreed that Mr Ameen's representative reminded her of the date of the injury, however, she maintained in her evidence that Mr Ameen suffered pain in his left shoulder from the day of the injury. I find it unremarkable that this was Ms Chetty's evidence and in circumstances where I have no issues with Mr Ameen's credit and accept his evidence that he experienced pain in both shoulders from the day of the fall, I do not find Ms Chetty's evidence does any more than confirm the accepted evidence of Mr Ameen.
[72] T1-67 ll25-45.
The parties drew my attention to the matter of Goodman Fielder v WorkCover where Hall P considered the matter of proximity of pain and the accident claimed to give rise to the pain:[73]
The medical evidence is such that one must accept, as has been accepted in other cases, that the degenerative spinal disease had reached the point at which it might be exacerbated and rendered symptomatic by stretching to get something out of a pantry, being over to tie shoelaces or turning over in bed. What happened to the worker in this case might well have happened to him at his home, on a council bus or at a religious service. However, once the Industrial Magistrate accepted that the incident of 3 April 2001 did in fact occur and accepted that there was a proximity of time between the incident and the onset of pain it was, in the absence of any competing causal incident, inevitable that the Industrial Magistrate would conclude on the balance of probability that the worker's employment had been "significant contributing factor to the aggravation". On the state of the evidence, any other conclusion would be speculation.
[73] (2004) 175 QGIG 871.
There is no evidence before the Commission that there was any other 'competing causal incident' between the fall on 18 June 2020 and the diagnosis of the left shoulder injury in September 2020. Additionally, the medical records do not disclose that the left shoulder had been symptomatic prior to the accident on 18 June 2020. I understand the evidence of Dr Low to be that when a person has the type of pre-existing condition Mr Ameen had regarding his left shoulder, it may be exacerbated or become symptomatic following any type of physical activity, for example, rolling over in bed. However, Dr Low was of the view that the fall on 18 June 2020 was of such a nature that in the absence of another event, on the balance of probabilities, he would consider that the left shoulder injury was caused by the fall. Mr Riley's evidence was that a fall such as the one Mr Ameen had on 18 June 2020 was highly consistent with an injury such as Mr Ameen's left shoulder injury.
I understand that the Respondent argues that the length of time which elapsed between the fall and the diagnosis of the shoulder injury means that there is not the requisite proximity in time between the event and the injury, however this argument would be dependent on a finding that Mr Ameen had not suffered pain in the left shoulder or complained of the left shoulder injury until September 2020. I do not accept that Mr Ameen did not experience pain in his left shoulder until September 2020 and I accept, on the balance of probabilities, that he reported the left shoulder injury to Dr Khondaker prior to September 2020, but that Dr Khondaker did not record this.
I have some difficulties with Dr Khondaker's evidence. Firstly, Dr Khondaker was not able to form an independent recollection of the consultations with Mr Ameen in the period following the fall. Dr Khondaker appeared to be heavily reliant on his notes of the consultations and unable or unwilling to set those aside and consider the questions he was being asked by the representatives of the Appellant and the Respondent. In addition, some of Dr Khondaker's notes appear to be records of his conversations with WorkCover rather than consultations with Mr Ameen. It appeared that at some point, Dr Khondaker formed a view that the left shoulder injury was not work related. From that point forward, it seems that Dr Khondaker was not open to considering the suggestion that the fall on 18 June 2020 may have contributed to the left shoulder injury and was likewise unwilling or unable to turn his mind to the possibility during the hearing. Dr Khondaker works in a busy practice and on his own evidence, his consultations tend to be short and he sees many patients in a day. Dr Khondaker's notes of the first attendance upon him (relevant to the fall) on 19 June 2020 do not record the mechanism of injury. Given this, I find that on the balance of probabilities, it can be accepted that Dr Khondaker did not record the entirety of the information reported to him by Mr Ameen at that consultation. In addition to this, having considered the way that Dr Khondaker gave evidence and answered the questions put to him, I find it entirely possible that Dr Khondaker did not record with any detail what Mr Ameen was saying to him during the consultations and that Mr Ameen had told him about both shoulders but had been more concerned about the right shoulder and the right shoulder then became the focus of Dr Khondaker's notes. I accept Mr Ameen's evidence that when he put to Dr Khondaker that the injury was work-related, Dr Khondaker told him that he was unwilling to provide such information to WorkCover because he did not want to have to attend court (see above in Mr Ameen's evidence at [39]).
I am persuaded that Mr Ameen reported to Dr Khondaker that he had pain in both shoulders; that the right shoulder was the focus of the complaint; that he had symptoms in the left shoulder; that, for whatever reason, Dr Khondaker did not wish to characterise the left shoulder as a work-related injury; and that due to his workload, Dr Khondaker did not have a habit of recording in detail the matters discussed with him during a consultation. I also note that Dr Khondaker is of the view that an orthopaedic surgeon is better placed to determine if the fall on 18 June 2020 could give rise to the injury to Mr Ameen's left shoulder.
Having considered all of the evidence before me, I accept that Mr Ameen injured both shoulders in the fall on 18 June 2020 and experienced pain in both shoulders in the days, weeks and months following the event. It is entirely plausible that Mr Ameen was initially more concerned about his right shoulder given the recent history or injury and surgery following the incident where Mr Ameen was kicked by a goat. It is also plausible that the medication Mr Ameen was taking for the right shoulder meant that the left shoulder did not feel as symptomatic initially as it did at such time as the right shoulder had received some treatment and at which point his attention shifted to the left shoulder.
I cannot determine any reason for Dr Low and Mr Riley to conclude that the fall on 18 June 2020 could have given rise to the left shoulder injury other than that this was their genuine expert opinion. Both Dr Low and Mr Riley are experienced professionals and based their opinions on the mechanism of the fall and an assessment of the injury Mr Ameen suffered to his left shoulder. Ultimately, the decision as to whether Mr Ameen's claim is one for acceptance is one for the Commission to make based on consideration of the evidence before the Commission, including expert evidence and the facts of the case. In circumstances where there is no competing evidence suggesting that the fall is unlikely to lead to such an injury and there is an absence of recent symptomology prior to the fall and no reported alternative event to provide a competing cause, I find the evidence of Dr Low and Mr Riley compelling.
I find that the aggravation of Mr Ameen's pre-existing left shoulder injury arose out of or in the course of his employment and that employment was a significant contributing factor to the injury.
Order
I make the following orders:

1.The appeal is allowed.

2.The decision of the Respondent of 7 June 2021 is set aside.

3.The Appellant's application for compensation under the Workers' Compensation and Rehabilitation Act 2003 (Qld) is accepted.

4.The Respondent is to pay the Appellant's costs of the hearing, to be agreed or, failing agreement, to be subject to a further application to the Commission.

[2022] QIRC 392

13 October 2022