Dwyer v Workers' Compensation Regulator - [2025] QIRC 119

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Dwyer v Workers' Compensation Regulator [2025] QIRC 119
PARTIES:	Dwyer, Paul Damien (Appellant) v Workers' Compensation Regulator (Respondent)
CASE NO:	WC/2022/187
PROCEEDING:	Appeal against decision of Workers' Compensation Regulator
DELIVERED ON: HEARING DATE:	13 May 2025 17 and 18 October 2023
MEMBER: HEARD AT:	Dwyer IC Mackay
ORDER:	1. Pursuant to s 558(1)(c) of the Workers' Compensation and Rehabilitation Act2003 (Qld) the review decision of the Regulator dated 19 October 2022 is set aside and another decision is substituted, namely that: *The Appellant's application pursuant to s 132A of the Workers' Compensation and Rehabilitation Act2003* (Qld) that is the subject of this proceeding is one for acceptance.** 2. The Regulator pay the Appellant's costs of the hearing in an amount to be agreed. In the event that the parties cannot agree they have liberty to apply for a determination on costs by the Commission.
CATCHWORDS:	WORKERS' COMPENSATION – ENTITLEMENT TO COMPENSATION – where appellant was employed as an Effet operator – incident causing injury to left knee - incident alleged to occur in November 2018 – question as to whether incident occurred – incident occurred – multiple underlying conditions in left knee – appellant contends for alternative injuries – medical evidence supports conclusion as to personal injury – other elements of definition of injury satisfied – claim is one for acceptance.
LEGISLATION:	Workers' Compensation and Rehabilitation Act 2003 (Qld) s 32, s 132A
CASES: APPEARANCES:	Austin v Workers' Compensation Regulator [2025] QIRC 110 Holtman v Sampson [1985] Qd R 472 State of Queensland (Queensland Health) v Q-Comp and Beverley Coyne [2003] ICQ 9 Ramsay v Watson (1961) 108 CLR 642 M. Holmes, Counsel instructed by Taylors Solicitors for the Appellant S. A. McLeod KC, Counsel directly instructed by the Workers' Compensation Regulator

Reasons for Decision

Introduction

Mr Paul Damien Dwyer[1] was employed as an Effet Operator at the Farleigh Sugar Cane Mill ('the mill') by Mackay Sugar Limited. Mr Dwyer contends that in the course of his employment, in or about November 2018, he suffered a left knee injury in the form of:[2]
i.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
ii.a left knee injury in the form of an aggravation of pre-existing degenerative change.
[1] Mr Dwyer is not related or otherwise known to me.
[2] Appellant's Statement of Facts and Contentions ('SOFC') filed 7 March 2023, Annexure "B", [2] – [3].
It is trite to observe that, subject to satisfaction of the other elements of section 32(1) of the Workers Compensation and Rehabilitation Act 2003 (Qld) ('the WCR Act'), either contention could satisfy the definition of 'personal injury' if the medical evidence supporting it is accepted.
The injury is said to have occurred on an unspecified date in November 2018 when Mr Dwyer stepped on a drain grate that gave way causing…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dwyer v Workers' Compensation Regulator

Details

AGLC: Dwyer v Workers' Compensation Regulator [2025] QIRC 119
Case: [2025] QIRC 119
Decision Date: 13 May 2025 17 and 18 October 2023

CaseChat Overview and Summary

The Queensland Industrial Relations Commission heard an appeal by Mr Dwyer against a decision of the Workers' Compensation Regulator that rejected his application for assessment for permanent impairment for a knee injury. The incident alleged to have caused the injury occurred in November 2018, when Mr Dwyer was employed as an Effet operator. The appeal involved two main issues: whether the incident in question occurred and, if so, whether it caused a personal injury within the meaning of section 32 of the Workers' Compensation and Rehabilitation Act 2003 (Qld). The court had to determine if Mr Dwyer's left knee injury, diagnosed in June/July 2019, arose from the incident in question or if it was an aggravation of pre-existing conditions. The Commission held that Mr Dwyer's account of the incident was credible, and the medical evidence supported the conclusion that the incident gave rise to an injury within the meaning of the Act. The Commission found that Mr Dwyer's injury met the criteria for compensation under the Act and set aside the Regulator's decision, ruling that Mr Dwyer's application for assessment was one for acceptance. The Regulator was ordered to pay the Appellant's costs of the hearing.

Orders

Orders of the court

1. Pursuant to s 558(1)(c) of the Workers' Compensation and Rehabilitation Act 2003 (Qld) the review decision of the Regulator dated 19 October 2022 is set aside and another decision is substituted, namely that:

The Appellant's application pursuant to s 132A of the Workers' Compensation and Rehabilitation Act 2003 (Qld) that is the subject of this proceeding is one for acceptance.

2. The Regulator pay the Appellant's costs of the hearing in an amount to be agreed. In the event that the parties cannot agree they have liberty to apply for a determination on costs by the Commission.

Background

Background to the litigation

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Evidence

Evidence Before The Court

In the circumstances I prefer the evidence of Mr Dwyer and I conclude that, in all probability, the incident occurred in or about November 2018 as he describes it, including that he reported it to Mr Hodge. Having arrived at this conclusion, it only remains to consider whether the medical evidence supports a conclusion that the incident gave rise to an injury within the meaning of the WCR Act. Medical evidence of personal injury The role of the Commission in appeals of this nature is to evaluate an appellant's claim for compensation in a hearing de novo. An appellant has the onus of to prove, to the civil standard, their claim is one for acceptance. In order for the Commission to reach such a conclusion there must be inter alia sufficient evidence before it to satisfy each of the elements of the definition of injury contained at section 32 of the WCR Act. In respect of competing medical opinions, Deputy President Merrell enunciated some useful principles in Ribeiro v Workers' Compensation Regulator.[22] While I do not propose to reproduce those principles in full, the authorities summarised in that decision establish that inter alia it is for the Commission, as the tribunal of fact, to weigh and determine the probabilities of the cause of an injury, having regard to the whole of the evidence.[23] In doing so, the Commission may be assisted by the medical evidence but ultimately, the Commission must look behind the expertise of the expert witness and examine the substance of the expert opinion expressed.[24] [22] [2019] QIRC 203, [43]-[55].[23] Ramsay v Watson (1961) 108 CLR 642, 645.[24] Holtman v Sampson [1985] Qd R 472, 474. While the experts in this matter differ in their opinions as to the cause of inter alia the tear to Mr Dwyer's meniscus, their evidence ultimately evolved in a way that established a spectrum of common ground on the question of personal injury within the meaning of the WCR Act. It is not essential or necessary for the Commission to make a finding as to a precise diagnosis. It may be that, in some appeals, the Commission can make a finding with that degree of precision where e.g. there is accord amongst experts as to a specific diagnosis. But a finding of personal injury is equally possible without a precise or agreed diagnosis. Provided the Commission has sufficient facts before it which, together, allow the Commission to be satisfied an appellant (in all probability) sustained a personal injury, it is unnecessary for the Commission to resolve competing diagnoses that each support such a conclusion. In this appeal the nature of the personal injury contended for by Mr Dwyer is expressed in his Statement of Facts and Contentions ('SOFC') as a meniscal tear, oedema (bone bruising) of the medial femoral condyle, and subchondral fracture of the medial femoral condyle. Alternatively, Mr Dwyer contends his personal injury is an aggravation of these preexisting conditions in his left knee. Mr Dwyer submits that these (alternative) personal injuries arose out of or in the course of his employment, more particularly, out of the incident in November 2018.

Decision

Reasons for decision

WorkCover rejected that application. By review decision dated 19 October 2022, the Regulator confirmed the decision of WorkCover to reject Mr Dwyer's application for assessment for permanent impairment for the knee injury ('the decision'). On 17 November 2022, the Appellant appealed the decision to the Queensland Industrial Relations Commission ('the Commission').The appeal proceedings An appeal of this type is a hearing de novo. Mr Dwyer bears the evidentiary onus of establishing, on the balance of probabilities, that he suffered an injury within the meaning of section 32 the WCR Act.[4] [4] State of Queensland (Queensland Health) v Q-Comp and Beverley Coyne [2003] ICQ 9. Mr Dwyer contends that the knee injury arose out of the incident and that in those circumstances it is an injury within the meaning of that term as it is defined in section 32 of the WCR Act. The Regulator contends that has Mr Dwyer has not sustained any knee injury as a consequence of the work incident in or about November 2018 as he alleges.[5] While the Regulator's case has relied primarily on the evidence of a medical expert witness, there has also been significant effort applied by the Regulator to cast doubt on the veracity of Mr Dwyer's account of the incident and his case generally.[6] [5] Respondent's Statement of Facts and Contentions ('SOFC') filed 28 April 2023, [24].[6] Respondent's outline of submissions filed 27 November 2023, [29]. In those circumstances, while the Regulator has not overtly asserted it, it must be implied from their conduct of the matter and the submissions filed that they also contend that the incident did not occur. There can be no dispute that the various radiology and examinations conducted in or about June/July 2019 demonstrate that Mr Dwyer's left knee was affected by multiple underlying pathologies.[7] The Regulator has conceded that, at all material times, Mr Dwyer was a worker within the meaning of section 11 of the WCR Act. [7] See for example the MRI report dated 24 July 2019 – Exhibit 1, Tab 6. Therefore, the contested issues for my determination in this appeal are:a)whether the incident alleged to have occurred in or about November 2018 did in fact occur; and if sob)whether it caused (in its own right or by aggravation) a personal injury within the meaning of section 32 of the WCR Act to Mr Dwyer's left knee. While not overtly conceded or contested by the Regulator, the question as to whether the alleged injury arose out of or in the course of Mr Dwyer's employment, and whether employment was a significant contributing factor are matters more efficiently addressed after the resolution of the two contested issues. For the reasons that follow, I have concluded that Mr Dwyer suffered an injury within the meaning of section 32 of the WCR Act.Legislation Section 32 of the WCR Act outlines the meaning of 'injury' as follows: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 -(a)a disease contracted in the course of employment, whether at or away from the place of employment, if the employment is a significant contributing factor to the disease;(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;(ii) a disease;(iii)a medical condition, if the condition becomes a personal injury or disease because of the aggravation;(c)loss of hearing resulting in industrial deafness if the employment is a significant contributing factor to causing the loss of hearing;(d)death from injury arising out of, or in the course of, employment if the employment is a significant contributing factor to causing the injury;(e)death from a disease mentioned in paragraph (a), if the employment is a significant contributing factor to the disease;(f)death from an aggravation mentioned in paragraph (b), if the employment is a significant contributing factor to the aggravation.(4)For subsection (3)(b), to remove any doubt, it is declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation.…(Emphasis added)

Ratio Decidendi

Legal Principle Established

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