Mateo v Workers' Compensation Regulator - [2022] QIRC 150

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Mateo v Workers' Compensation Regulator

[2022] QIRC 150

PARTIES:

Mateo, Joselito

Appellant

Workers' Compensation Regulator

Respondent

CASE NO:

WC/2019/209

PROCEEDING:

Appeal against a decision of the Workers'

Compensation Regulator

DELIVERED ON:

4 May 2022

HEARING DATES:

23, 24, 25 and 26 August 2021

DATES OF WRITTEN

Appellant's submissions, 21 September 2021

SUBMISSIONS:

Respondent's submissions, 6 October 2021

MEMBER:

McLennan IC

HEARD AT:

Brisbane

ORDERS:

1.	The appeal is dismissed.
2.	The decision of the Workers' Compensation Regulator is confirmed.
3.	The Appellant is to pay the Respondent'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

–

PHYSICAL INJURY – where appellant was employed as a food service assistant – where

appellant sustained a personal injury to his right

shoulder – whether appellant suffered an aggravation of a personal injury – whether

aggravation arose out of, or in the course of, the

appellant's employment – whether appellant's

employment was a significant contributing

factor to the aggravation – appeal dismissed

LEGISLATION:

Workers' Compensation and Rehabilitation Act

2003 (Qld) s 32

Workers' Compensation and Rehabilitation

Regulation 2014 (Qld) s 132

CASES:

Carman v Q-COMP [2007] ICQ 43

Church v Workers' Compensation Regulator

[2015] ICQ 031

Cronin v Workers' Compensation Board of

Queensland (1997) 156 QGIG 100

JBS Australia Pty Ltd v Q-COMP [2013] ICQ
13

Karipa v Q-COMP [2013] QIRC 161

Kavanagh v Commonwealth (1960) 103 CLR
547

Linke

Simon

Blackwood

(Workers'

Compensation Regulator) [2014] QIRC 181

Morrison v Workers' Compensation Regulator

[2016] QIRC 065

Nunan v Cockatoo Docks and Engineering Co

Ltd (1941) 41 SR (NSW) 119

Omanski v Q-COMP [2013] ICQ 7

Pleming v Workers' Compensation Board of

Queensland (1996) 152 QGIG 1181

Ribeiro v Workers' Compensation Regulator

[2019] QIRC 203

Seltsam Pty Ltd v McGuiness (2000) 49
NSWLR 262

State of Queensland (Queensland Health) v Q-

COMP and Beverley Coyne (2003) 172 QGIG
1447

Tuesley v Workers' Compensation Regulator

[2021] QIRC 071

Workers' Compensation Regulator v Queensland Nurses and Midwives' Union of

Employees (No 2) [2021] ICQ 13

APPEARANCES:

Dr G J Cross of counsel, instructed by Patinos
Lawyers for the Appellant.

Ms K M Riedel of counsel, directly instructed by the Respondent.

Reasons for Decision

Mr Joselito Mateo is a 55 year old married gentleman, with five adult children.[1]
[1] Exhibit 1, 96, 147.
Born in the Philippines, Mr Mateo settled in Australia in 2006.
Since then, Mr Mateo has undertaken a number of physically demanding jobs. He toiled in the bakery industry for almost five years, then worked in an abattoir for seven years, before finding employment in a hospital kitchen.
Mr Mateo started at the Mater Misericordiae Limited (the Mater; the hospital) as a food service assistant on 30 July 2018.
Less than three months later, Mr Mateo claimed a left shoulder injury whilst working in the hospital kitchen. That application for workers' compensation was accepted.
After his left shoulder injury, Mr Mateo returned to work in the kitchen under a restricted duties Return to Work (RTW) plan.
A subsequent injury to Mr Mateo's right shoulder was said to have occurred between 20 October 2018 and 11 March 2019 (the relevant period).
Mr Mateo claimed his shoulders became sore after finishing work on 11 March 2019.
A factual dispute exists as to the actual work tasks performed by Mr Mateo in the relevant period.[2] Mr Mateo said his duties included loading meal trays into food trolleys, then pushing and pulling them into position, ready for dispatch to patients. That is denied by the Regulator.
[2] 20 October 2018 to 11 March 2019.

[10] Mr Mateo asserted that his right shoulder injury occurred both as a consequence of performing those particular work duties and because he was favouring his right side in order to do that work. That right shoulder injury has been characterised as an aggravation of the accepted left shoulder injury.

The four medical experts are divided as to whether or not Mr Mateo's employment was a significant contributing factor to his right shoulder condition.
Claim details
The accepted left shoulder injury

[12] An undated Online Claim Form was lodged by the Mater for a left shoulder injury, sustained by Mr Mateo from lifting pots on 19 October 2018.

WorkCover accepted that application for Mr Mateo's left rotator cuff injury (provisional diagnosis).
By Statutory Declaration sworn 17 June 2021, Mr Mateo stated that the left shoulder injury was sustained over the period 30 July 2018 to 19 October 2018.[3]
[3] Exhibit 2.
The right shoulder injury, subject of this Decision
WorkCover contacted Mr Mateo on 14 March 2019 upon receipt of a medical certificate and advice of an incident relating to his right shoulder. Mr Mateo explained that he was on restricted duties, working on the expeditor line, as well as pushing and pulling trolleys. He told WorkCover that on 11 March 2019 he worked a full eight hour day and both shoulders were sore after work.
In its 2 May 2019 decision, WorkCover rejected Mr Mateo's application on the basis that the factual and medical information available did not evidence a causal connection between Mr Mateo's left shoulder injury and the development of his right shoulder bursitis.
WorkCover concluded that Mr Mateo's claim relating to a secondary injury to his right shoulder was not accepted under s 32 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) (the Act).
Mr Mateo applied to the Workers' Compensation Regulator (the Regulator) to review that decision on 19 July 2019.

[19] The Regulator confirmed WorkCover's determination in its review decision of 4
November 2019, contained in correspondence dated 20 November 2019.
[20] Mr Mateo subsequently filed this appeal against the Regulator's decision on 27
November 2019.
What legal tests must be satisfied for Mr Mateo's appeal to succeed?

The definition of injury, including an aggravation, per the iteration of the Act at the relevant time, was:
32 Meaning of injury
(1) An injury is personal injury arising out of, or in the course of, employment if—

(a) for an injury other than a psychiatric or psychological disorder—the employment is
a significant contributing factor to the injury;

…

(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;

…

(4) For subsection (3)(b) and (ba), 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.

[22] An injury arises out of employment where there is a causal connection between the employment and the injury.[4]
[4] Kavanagh v Commonwealth (1960) 103 CLR 547, 558 - 559.

The Act prescribes that an aggravation is an injury "…to the extent of the effects of the
aggravation".[5]
[5] Workers' Compensation and Rehabilitation Act 2003 (Qld), s 32(4)
An appeal such as this is a hearing de novo.[6] Mr Mateo bears the onus to prove, on the balance of probabilities, that he sustained an injury within the meaning of the Act. As explained by Deputy President Merrell:
[6] Church v Workers' Compensation Regulator [2015] ICQ 031, [27]; State of Queensland (Queensland Health)
The balance of probabilities test requires a court to reach a level of actual persuasion and that process does not involve a mechanical application of probabilities.[7]
[7] Ribeiro v Workers' Compensation Regulator [2019] QIRC 203, [101], citing Seltsam Pty Ltd v McGuiness
Questions to be determined
There is no dispute between the parties that:

• Mr Mateo was a worker within the meaning of s 11 and sch 2 of the Act, during the relevant period; and
• Mr Mateo sustained a personal injury to his right shoulder.[8]
[8] Respondent's Closing Submissions, filed 6 October 2021, 1 [5]; Respondent's Statement of Facts and

This case turns on whether or not Mr Mateo is able to prove to the required standard that:

• his right shoulder injury arose out of, or in the course of, his employment at the Mater; and
• his employment was a significant contributing factor to his right shoulder injury.

My consideration of those questions will be further informed by the following matters:

• Mr Mateo's right shoulder condition.
• Circumstances of Mr Mateo's right shoulder condition.
• Mr Mateo's left shoulder condition.

•

Was the right shoulder condition an aggravation of the left shoulder condition - or an aggravation of an underlying degenerative condition?
• Chronology.
• Work tasks performed in the relevant period.

•

Medical opinions about whether favouring his right side to perform the work duties, whilst recovering from his left shoulder injury, contributed to Mr Mateo's right shoulder injury.
• When did Mr Mateo report the right shoulder injury?
• When was Mr Mateo required to report it?
• What accounted for the delay in doing so?
• Mr Mateo's prior medical history.
Summary of Findings
[28]   In my view:

• Mr Mateo's right shoulder condition did arise in the course of his employment;
• there has been an aggravation of Mr Mateo's pre-existing right shoulder degenerative condition; and
• Mr Mateo's employment was not a significant contributing factor to his right shoulder condition.
[29]   My reasons follow.
Evidence and submissions
[30]   Written closing submissions were directed in the order Appellant – Respondent –
Appellant (in reply, on issues of law only).

The Appellant's written closing submissions were filed on 21 September 2021.
The Respondent's written closing submissions were filed on 6 October 2021.
The Appellant did not file any written closing submissions in reply.
The evidence of the witnesses and nine exhibits tendered at the Hearing, together with the written closing submissions, the Statements of Facts and Contentions, the Workers' Compensation Regulator notice of appeal and other materials filed in this matter were considered in this Decision. I have determined not to approach the writing of this Decision by summarising the entirety of the evidence provided and submissions made, but will instead refer to the parties' positions in my consideration of each question to be decided.
Witnesses
The witnesses for the Appellant's case were:

• Mr Joselito Mateo, the Appellant himself;
• Dr Mark Robinson, the Appellant's treating Orthopaedic Surgeon;[9] and
• Dr Bruce Low, Orthopaedic Surgeon.
[9] Hand and upper limb surgeon, specialising in shoulder surgery and microsurgery; T 2 - 28, lines 1 - 2.

The witnesses for the Respondent's case were:

• Mr Brendan Host, formerly Team Leader of Room Service at the Mater;
• Mr Jimmy Ruiz, Food Service Supervisor at the Mater;
• Ms Blazenka Solar, Food Service Supervisor at the Mater;
• Mr Vincent Hall, Food Service Supervisor at the Mater;
• Ms Tracey Ceh, formerly Rehabilitation Advisor at the Mater;
• Ms Alison Devereux, Senior Health and Safety Advisor at the Mater;
• Ms Rebecca Part, formerly Health and Safety Advisor at the Mater;
• Ms Leanne Loch, Occupational Health Physiotherapist and Ergonomist;
• Dr Desmond Soares, Orthopaedic Surgeon; and
• Dr Brett Halliday, Orthopaedic Surgeon.

Dr Peter Wang and Dr Dale Lee were also to be called by the Respondent. However, the parties' representatives confirmed that their documents were accepted, without the need to cross-examine them.
Mr Mateo's right shoulder condition
Dr Mark Robinson

Mr Mateo's treating Orthopaedic Surgeon, Dr Robinson, diagnosed Mr Mateo with "right rotator cuff tendinitis / subacromial bursitis"[10] in a report dated 21 June 2019.[11]
[10] Appellant's Amended Statement of Facts and Contentions, filed 26 July 2021, 8 [13].
[11] WCR Notice of Appeal filed 27 November 2019, 4.
In his report of 26 September 2019, Dr Robinson also noted that Mr Mateo "…has an
element of age and activity-related degeneration."
Dr Bruce Low

[39] On 28 July 2020, the Appellant's lawyers requested Dr Low, Orthopaedic Surgeon, undertake an examination of Mr Mateo and prepare a report. Dr Low examined Mr Mateo on 6 August 2020.

The report dated 30 September 2020 recorded Dr Low's diagnosis as "Left and right shoulder subacromial bursitis and rotator cuff tears in the workplace."[12]
[12] Exhibit 1, 188.
Dr Brett Halliday
On 20 August 2019, WorkCover requested Dr Halliday, Orthopaedic Surgeon, undertake an Independent Medical Examination of Mr Mateo.
Dr Halliday's report dated 16 September 2019 recorded that Mr Mateo "has not returned to any work since March 2019 prior to his operation. During his period of time on light duties Mr Mateo has developed issues with his right shoulder."[13]
[13] Ibid 168.
In a supplementary report dated 9 October 2019, Dr Halliday opines that Mr Mateo's "symptoms in the right arm are constitutional."[14] Dr Halliday later observed those to be "consistent with his age".[15] He further stated that "The symptoms in the right shoulder relate to constitutional conditions and it is likely that there is a significant constitutional component to his left shoulder condition as well."[16]
[14] Ibid 174; WCR Notice of Appeal filed 27 November 2019, 4.
[15] Exhibit 1, 181.
[16] Ibid 174.
Dr Desmond Soares
On 5 April 2019, WorkCover requested Dr Soares, Orthopaedic Surgeon, undertake an Independent Medical Examination of Mr Mateo.
The report dated 16 April 2019 recorded the diagnosis of "Right shoulder bursitis".[17]
[17] Ibid 147; WCR Notice of Appeal filed 27 November 2019, 3.
Dr Soares stated "I do believe that his symptoms are due to an exacerbation of underlying degenerative rotator cuff partial tears. These are not related to his employment. He has been employed at the Mater kitchen for only two months. In the absence of a specific traumatic incident the time period is not long enough for him to develop a degenerative injury in his role at the Mater."[18]
[18] Exhibit 1, 146.
Dr Soares concluded that Mr Mateo's right shoulder symptoms are due to "a degenerative underlying condition" which is a "degenerative rotator cuff tears rather than any work- related condition."[19]
[19] Ibid 147.
Dr Andrew Jeremijenko
Dr Jeremijenko issued a Workers' Compensation Work Capacity Certificate on 13 March 2019. That recorded the diagnosis of "Right rotator cuff tear, right bursitis".[20]
[20] Ibid 136; WCR Notice of Appeal filed 27 November 2019, Annexure A, 1, [7], 3.
Dr S Anderson
Dr Anderson issued a Workers' Compensation Work Capacity Certificate on 29 March 2019. That recorded the diagnosis of "Right rotator cuff tear, right shoulder bursitis".[21]
[21] Exhibit 1, 142; WCR Notice of Appeal filed 27 November 2019, Annexure A, 1 [8], 3.
MRI report dated 6 June 2019
The MRI report ordered by Dr Robinson concluded a diagnosis of:
1. Minor fraying to the supraspinatus and subscapularis tendons and a background of tendinosis, no discrete tear. Associated subacromial bursitis.
2. Superior labral tear from 11 to 1 o'clock which is nondisplaced and demonstrates a small adjacent paralabral cyst.[22]
[22] Exhibit 1, 153.
Circumstances of Mr Mateo's right shoulder condition
Regulator's position

[51] The Regulator's position was that "The right shoulder condition was a pre-existing degenerative condition which would have arisen even if the Appellant was not performing any work related tasks."[23]
[23] Respondent's Statement of Facts and Contentions filed 11 August 2021, 31, Attachment B, [43bi].

The Regulator stated that the personal injury to Mr Mateo's right shoulder "pre-existed the commencement of his employment at the Mater in July 2018."[24]
[24] Ibid [42].
Appellant's position

[53] The Appellant's position is that the right shoulder injury was an aggravation of the accepted left shoulder injury. This is asserted on the grounds that Mr Mateo aggravated his right shoulder, whilst attempting to rehabilitate his left shoulder.[25]
[25] Appellant's Closing Submissions filed 21 September 2021, 4 [26].

After sustaining a left shoulder injury - either on 19 October 2018, or in the period from 30 July 2018 to 19 October 2018 - Mr Mateo returned to work under a restricted duties program.
However, Mr Mateo's evidence was that only a few weeks after his left shoulder injury, the reality was that he was working the same duties as other kitchen staff:

Ms Riedel: …I suggest to you, Mr Mateo, that when you returned to work after injuring
your left shoulder, in October 2018, you were put into a supernumerary role.
So you were an extra in the kitchen?
Mr Mateo: ---Yes.
Ms Riedel: Yes. So you were on light duties?
Mr Mateo: ---On the first weeks. Yeah.

Ms Riedel:

On the first weeks. Well, I'm suggesting to you that for the entirety of your time in the kitchen, after injuring your left shoulder, you were always on light duties?
Mr Mateo: ---No.
Ms Riedel: No?
Mr Mateo: --- [indistinct]
Ms Riedel: And I suggest to you that for the entirety of the time after you injured your left
shoulder, you were as a supernumerary?
Mr Mateo: --- [indistinct]
Ms Riedel: And I suggest to you that during that entire time, after injuring your left
shoulder, you never had a specific role?
Mr Mateo: --- [indistinct]
Ms Riedel: You were just as a supernumerary?
Mr Mateo: --- [indistinct]

Ms Riedel:

And, in particular, I suggest that you were rostered simply to help the people who were working on the plating line, and, in particular, the people who were working in a starter or the middle position?
Mr Mateo: --- [indistinct]
Ms Riedel: I suggest to you that even if you were working in the starter and the middle
positions, those roles didn't involve reaching above your head, did they?

Mr Mateo:

---I think reaching the – the – the order from the – from the patient was already above my head. And reaching the bread, as a midd – as in the middle, is
already above your head. Reaching the drinks at the back or the [indistinct]

back is already reaching – reaching above your head. Reaching the cooked food that the chef prepared is reaching over your head – over your chest
already.

Ms Riedel:

Well, I suggest to you that those tasks weren't above your head height, and if they were then any items that you needed to reach for were moved by your
colleagues to a – to below chest height?
Mr Mateo: ---No.
Ms Riedel: And I suggest to you that those were the requirements of – that were set out in
all of the return to work programs that we've been through, that you were not
to reach above chest height?
Mr Mateo: ---Yeah.
Ms Riedel: So your programs – you agree that the programs stated very clearly that you
were not to work above chest height?
Mr Mateo: ---I'm not supposed to reach overhead – chest high. Yes.
Ms Riedel: Yes. And I suggest to you that various – firstly, that the roles – the start and
the middle positions, on the plating line, didn't involve reaching above chest
height?
Mr Mateo: ---It does involve chest high reaching.

Ms Riedel:

And I suggest to you that steps were taken by your colleague and by the supervisors, to move anything that was above chest height to a height that you
could reach without not – so in your compliance with your programs?
Mr Mateo: ---Some of the tasks being for a starter, the middle and the expediter, would
be using above chest height.
Ms Riedel: Now, when you returned to work on the return to work program – so after
injuring your left shoulder in October 2018, I suggest to you that you did not
work in the dish room?
Mr Mateo: ---No.
Ms Riedel: Do you agree with that? So - - -?
Mr Mateo: ---First weeks. Yes.
Ms Riedel: So the first – you're saying that the first couple of weeks back - - -?
Mr Mateo: ---Yeah.
Ms Riedel: - - - you didn't work in the dish room?
Mr Mateo: ---Is it after the injury?
Ms Riedel: After the injury? Af - - -?
Mr Mateo: ---First weeks I didn't work in the dish – dishwashing. Yes.
Ms Riedel: So I'm suggesting to you that from the 28th – sorry – from the 19th of October
2018 through to March 2019, you did not work in the dish room?
Mr Mateo: ---I've work in the dish room.
Ms Riedel: And I suggest to you that during that period, from the 19th of October 2018
through to the March 2019, you did not work in the expediter position?
Mr Mateo: ---I work in the expediter.
Ms Riedel: And I suggest to you that you weren't pushing trolleys?
Mr Mateo: ---I pushed the trolley.
Ms Riedel: And you didn't put trays on the trolleys?
Mr Mateo: ---I put the tray in the trolley.
Ms Riedel: And I suggest to you that there was no frequent reaching and bending below
the shoulder?

Mr Mateo:

---There's frequent and repetitive use of that when you doing – when you are in this expediter position or in the – even though it's starter, middle, expediter,
you are doing a repetitive action [indistinct]
Ms Riedel: And I suggest to you, Mr Mateo, that you weren't doing the same duties during
that period of 19 October 2018 to March 2019 – you weren't doing the same
duties as the other staff, during that period?
Mr Mateo: ---I was treated as this – as a regular employee. So what I'm doing that way is
the same thing that the regular employees are doing.[26]

[26] T 1 - 62, line 34 - T 1 - 64, line 24.

Mr Mateo's evidence was that an unnamed co-worker had trained him in the expediter position and that Mr Vincent Hall had also trained him in how to use the monitor equipment required.[27]
[27] T 1 - 62, lines 1 - 22; T 4 - 21, lines 19 - 23; Mr Vincent Hall had no recollection of training Mr Mateo in the

[57] Mr Mateo stated that the work duties he performed in the relevant period included stacking meal trays, and pushing and pulling the food trolleys. This work was done following Mr Mateo's left shoulder injury. Further, Mr Mateo's working hours on 11 March 2019 had also just increased to eight hours that day, although he had resisted that increase.
Incident Report

An Incident Report was completed on 13 March 2019 regarding the occurrence after work on 11 March 2019 as follows:[28]
[28] Exhibit 1, 221, 311; WCR Notice of Appeal filed 27 November 2019, Annexure A, 1 [6].
On Monday I was performing my normal duties e.g. making juices and working on the line. I left work at 16:30 and about 18:00 I noticed my right shoulder was sore. I was off the next day and I thought that it would be better but it is still sore.

[59] The Incident Type was described as "Manual handling", "Muscular stress handling objects (not lift, carry or put down)" and "Pushing objects".[29]
[29] Exhibit 1, 311.

The conditions in the kitchen were described in that document as "Cluttered".[30]
[30] Ibid 313.
WorkCover
Mr Mateo told WorkCover on 14 March 2019 that:
He's working in area on suitable duties but really is working the same as other staff. On started and expediter line, pushing and pulling the trolleys.
When I worked full 8 hours Monday 11 March 2019 I felt pain left shoulder and that's why TMS reduced the hours.
When I worked Monday 11 March 2019 full day also felt soreness right shoulder. Approx. first felt tray and pass onto middle person and after 2 hours will be moved to expediter which is putting tray onto trolley and when push trolley to distributor position ready to be taken to wards by someone.
it at 6 pm that evening.
Felt soreness when I got home, not at time when I was working.
Went back to work on Wednesday and reported to the supervisor at work and did incident report and saw doctor at MPECC, Dr Jeremijenko.[31]
[31] Appellant's Amended Statement of Facts and Contentions filed 26 July 2021, 7 [3K]; Exhibit 1, 219.
When asked by WorkCover what he thought had caused the shoulder pain, Mr Mateo replied:
Maybe just the work duties, my right side I am using mainly so think this is contributing to the pain and working the full hours.[32]
[32] Exhibit 1, 220.
Mr Mateo also told WorkCover about his movements between finishing work at 4:30 pm and when his right shoulder became sore later that evening. He said that:
I was waiting for my wife to finish work for 30 mins at parking lot and we went home. I was driving. No incidents on way home.
Got home 5:45 pm and when I started resting / lying on bed, I felt soreness in both shoulders.
Had to rest for a while before I started doing the dinner and everything.[33]
[33] Ibid 219.
Dr Mark Robinson

[64] Mr Mateo's treating Orthopaedic Surgeon, Dr Robinson, opined that Mr Mateo had aggravated his right shoulder whilst attempting to rehabilitate his left shoulder.[34]
[34] Appellant's Amended Statement of Facts and Contentions, filed 26 July 2021, 8 [13]; WCR Notice of Appeal

In his report to WorkCover dated 27 May 2019, Dr Robinson noted Mr Mateo was most recently reviewed on 22 May 2019 and that "He was experiencing increasing pain to his right shoulder because he was using his shoulder exclusively, whilst his left arm was in the sling."[35]
[35] Exhibit 1, 151.
In a report dated 14 March 2019, Dr Robinson stated (my emphasis):[36]
[36] WCR Notice of Appeal filed 27 November 2019, Annexure A, 2 [10].
Joselito returned for a review on 13 March 2019. He is struggling with his return to work program. They have increased his hours to eight hours a day and he reported increasing pain to his left shoulder and also he is starting to develop symptoms in his right shoulder.
In that report, Dr Robinson stated that he had now "…reduced him to 6 hours a day, at
his request..."[37]
[37] Exhibit 1, 138.
Dr Bruce Low
In his report dated 30 September 2020, Dr Low explained:
He had sustained bilateral shoulder tendinitis and impingement syndrome and rotator cuff tears. The left shoulder has had surgery, rotator cuff repair and a subacromial decompression, complicated by adhesive capsulitis which is slowly resolving. The left is recognised as work-related. He has similar pathology in both shoulders. Bursitis, tendinitis, impingement all mean the same thing.
The right was more of an aggravation due to restricted duties of not being able to use his left arm when his left arm was sore. The right became painful because he could not use his left arm, and it would be regarded as an aggravation / injury / rotator cuff tear. The left was more related to a discrete injury. There is similar pathology in both shoulders.[38]
[38] Ibid 189.
Dr Brett Halliday
In his 14 May 2020 report, Dr Halliday described Mr Mateo's left shoulder injury due to an incident at work on 19 October 2018, the ensuing light duties, his left shoulder surgery on 4 April 2019, after which time Mr Mateo had not returned to any work.
Dr Halliday noted that "Just prior to his shoulder surgery Mr Mateo reports that he began to develop pain in his right shoulder."[39] Later he added, "Mr Mateo has some constitutional right shoulder symptoms consistent with his age which have developed since this (left shoulder) injury."[40]
[39] Ibid 180.
[40] Ibid 181.
Dr Desmond Soares
Dr Soares' report dated 16 April 2019 noted that Mr Mateo "states he was virtually having to do the same as normal duties and claims and because he was pushing trolleys, that he only used his right shoulder and developed pain in his right shoulder. It was sent back to emergency to have a repeat ultrasound and a further partial tear was diagnosed in the right shoulder…"[41]
[41] Ibid 146.
Dr Soares' report dated 16 April 2019 further stated that "The findings on his ultrasounds and MRI are consistent more with a degenerative rotator cuff tear consistent with someone is 52 years old." Further, that "I do believe that his symptoms are due to an exacerbation of underlying degenerative rotator cuff partial tears. These are not related to his employment. He has been employed at the Mater kitchen for only two months. In the absence of a specific traumatic incident the time period is not long enough for him to develop a degenerative injury in his role at the Mater." [42]
[42] Ibid.
Dr Soares was emphatic that Mr Mateo's right shoulder condition was not work-related. Dr Soares stated, "He has no work-related incapacity in his right shoulder. His right
shoulder symptoms are due to a degenerative underlying condition…It is likely that he
may benefit from surgery to his right shoulder. However that surgery would be aimed at is underlying degenerative condition which is a degenerative rotator cuff tears rather than any work-related condition."43
At the Hearing, Dr Soares said that Mr Mateo had embarked on his overseas holiday after his left shoulder symptoms had begun. Whilst he was away, his symptoms were not as severe. That lead Dr Soares to conclude that Mr Mateo's condition was an 'exacerbation' rather than a compensable 'aggravation', the difference between the two being that in the former case, work made his shoulder pain worse but was not actually changing the nature
or course of the disease – and in the latter case, aggravation is a long-term permanent
change in the course of a disease.[44]
[44] T 3 - 9, lines 2 - 8.
Rehabilitation Advisor
Ms Tracey Ceh's notes of her meeting with Mr Mateo and supervisor Sushi Kapoor on
22 February 2019 reported Mr Mateo as telling her that "…the only day he had problems
with his work tasks was on 29.01.19. I note that this is different information than what is reported in Dr Robinson's letter to his GP."[45] However, Ms Ceh's notes of her meeting with Mr Mateo and Mr Host on 31 January 2019 made no reference to Mr Mateo's contemporaneous indication of any issues with performing his work tasks, although Ms Ceh stated he had been reminded to raise any concerns.
[45] Exhibit 1, 269.
Ms Tracey Ceh's notes of her meeting with Mr Mateo and Mr Brendan Host on 8 March 2019 indicated both that Mr Mateo "States no new event but occasionally does get pain doing a task."[46] In that same meeting, Mr Mateo went on to resist the increase to his daily working hours.
[46] Ibid 270.
On 13 March 2019, Ms Tracey Ceh emailed Mr Brendan Host following a discussion with Mr Mateo. She stated that Mr Mateo had:
…advised that he had discomfort in his right shoulder after work on Monday and he went to see Dr
Robinson today and has a new medical certificate to reduce his hours to 6 hour shifts x 3 days per week. Dr Robinson has advised Joselito to attend Mater Private Emergency Care Centre for his right shoulder. I have discussed with him that he needs to return to the kitchen and let his supervisor know. He will need to complete an Eric for the right shoulder.[47]
[47] Ibid 316.
Outside work activities
At the Hearing, Mr Mateo was asked about any outside work activities that may have contributed to his right shoulder condition.

[79] In cross-examination, he agreed with the proposition that in the period after his left shoulder injury up until 11 March 2019 he was getting on with life as normal, when not working in the kitchen at the Mater. Mr Mateo accepted that he was still driving, though his contribution to cooking was "minimised" because his wife was doing that. Mr Mateo said he was having a hard time doing the activities of daily life such as getting dressed and brushing his teeth, notwithstanding he is right hand dominant and it was only his left shoulder that was injured at that time.[48]
[48] T 1 - 70, lines 9 - 37.

I would observe that Mr Mateo's account above is at odds with what he told WorkCover about his movements after work on 11 March 2019, in terms of getting dinner ready after having a rest.
Increase to daily working hours
Dr Robinson's report dated 3 January 2019 stated that:
…Movement and strength of his shoulder continues to improve. He is coping with his current
program of light duties and I expect this can be gradually upgraded. Further review is planned in 7
weeks.[49]
[49] Respondent's Statement of Facts and Contentions filed 11 August 2021, 14 [5Mb].
Mr Mateo advised rehabilitation adviser, Ms Tracey Ceh, on or about 24 January 2019 that he was coping well with his restricted duties and wanted to increase his hours of work.[50]
[50] Exhibit 1, 268; Respondent's Statement of Facts and Contentions filed 11 August 2021, 15 [5Mc].
On 7 February 2019, Mr Mateo told Mr Brendan Host that he wanted to reduce his weekly hours of work to below 20 hours per week. Mr Mateo had stated that working 23 hours per week affected the financial hardship payment arrangements that had been approved by his bank. Mr Host had advised Mr Mateo that the Mater was required to provide him with the average hours of work prior to the injury and if he was medically cleared to work those hours he was obliged to do so. Mr Host concluded that Mr Mateo had been unhappy with that response and had indicated his intention to pursue the reduction of his working hours with Ms Ceh.[51]
[51] Exhibit 1, 310; Respondent's Statement of Facts and Contentions filed 11 August 2021, 15 [5Me].
In his meeting with Ms Tracey Ceh and Mr Brendan Host on 8 March 2019, Mr Mateo again raised his concern about the increase to his daily working hours, saying that he did occasionally get pain when doing a task. Ms Ceh had noted that "We discussed that we had increase the hours per day and reduced the days per week to ensure that he is working the 23 hours as required by WorkCover and three days per week. He said that he thought he would continue on the reduced hours and we discussed that Dr Robinson has not requested this."[52]
[52] Exhibit 1, 270.

[85] The Return to Work Plan signed by Dr Robinson on 10 March 2019 indicated his approval for Mr Mateo to work 23 hours per week, comprising two 8 hour shifts and one 7 hour shift.[53] It noted "Use of the left upper limb for light functional tasks is important to maintaining range of movement and minimizing muscle atrophy."[54]
[53] Respondent's Statement of Facts and Contentions filed 11 August 2021, 17 [5Sc].
[54] Ibid [5S].

From 11 March 2019, the Mater increased Mr Mateo's daily working hours, although he was rostered only three days a week.[55]
[55] Appellant's Amended Statement of Facts and Contentions, filed 26 July 2021, 4 [2R] - [2S].
In his 14 March 2019 report, Dr Robinson noted that "I have reduced him to 6 hours a
day, at his request…"[56]
[56] Exhibit 1, 138, 316, 318.
I would observe that throughout the month of January, upon return from his overseas trip, Mr Mateo's shoulder appeared to be improving, he was coping with his restricted duties and wanted to increase his working hours. That ambition changed on 7 February 2019, when Mr Mateo identified the impact an increase in working hours would have on the financial hardship consideration that had been arranged with his bank. Unhappy with the response from Mr Host when raising the matter, Mr Mateo took up the matter with Ms Ceh. Her notes of their meeting a month later indicated that Mr Mateo remained resolute in his position that he did not now want his weekly working hours to be increased, stating now that he did occasionally get pain when doing a task. It was explained by Ms Ceh that Dr Robinson had authorised Mr Mateo to perform 23 hours work over three days per week, comprising two 8 hour shifts and one 7 hour shift. After seeing Mr Mateo on 13 March 2019, Dr Robinson wrote that he was reducing Mr Mateo's working hours to six hours per day at his request.
In my mind remains the question of whether Mr Mateo asked for his working hours to be reduced because of the right shoulder pain that occurred after working a full day on 11
March 2019 – or because of the negative impact of doing so with respect to arrangements

with his bank. The sequence of events I have explained at [88] above evinces serious
doubt about the sincerity of Mr Mateo's representations on that point.
Overseas trip

Mr Mateo and his family went on an overseas holiday to Vietnam, Thailand and the Philippines for a wedding in the period between Christmas 2018 to New Year January 2019 to attend his son's wedding.[57] Mr Mateo was away from work entirely in order to do so.[58]
[57] T 3 - 30, lines 1 - 3.
[58] T 1 - 33, lines 30 - 47.
Dr Soares recounted that Mr Mateo had told him he didn't carry any bags on the duration of that overseas trip, recalling that he had mentioned that other people carried the bags.[59]
[59] T 3 - 10, lines 1 - 15.
The Functional Capacity Assessment Report dated 4 January 2019 noted that "Mr Mateo will resume physiotherapy now that he has returned from his overseas holiday" and that "Mr Mateo reported managing well during travelling and avoided lifting and handling luggage, which was done by family members."[60]
[60] T 3 - 29, lines 39 - 40; T 3 - 30, lines 9 - 10.
The matter of the overseas holiday was rather reluctantly conceded by Mr Mateo in cross- examination the Hearing.[61] Initially, Mr Mateo said he couldn't recall. When Ms Riedel made specific reference to Mr Mateo travelling overseas for a wedding in the Philippines, he first queried "A wedding?" before conceding "I think so. Yes."[62] I found that reticence strange. A family wedding and a trip overseas are both exciting events - even prior to the COVID-19 global pandemic. Both events also require a lot of time in the planning and also likely significant expense. The events happened less than three years ago, at the time of the Hearing.
[61] T 1 - 33, lines 34 - 44.
[62] Ibid lines 34 - 47.
Mr Mateo's left arm was not in a sling and not out of action entirely at that time.[63]
[63] T 3 - 13, lines 33 - 35.
I observe that Mr Mateo did not call his wife or another family member to support his statement on the Functional Capacity Assessment Report that he did not carry or lift any luggage whilst on the overseas holiday. Although I recognise that neither was the proposition put to Mr Mateo that it was not the case.
Mr Mateo's left shoulder condition
Less than three months after Mr Mateo commenced in the Mater kitchen, he claimed a left shoulder injury.
WorkCover accepted that Mr Mateo sustained a left shoulder injury on 19 October 2018, in the course of working in the pot wash.
However, Mr Mateo later swore a statutory declaration on 17 June 2021 amending his left shoulder injury claim to allege that it occurred over the period 30 July 2018 to 19 October 2018.[64]
[64] Exhibit 2.
While the parties dispute whether or not that accepted left shoulder injury was a 'set date' injury or instead occurred 'over a period of time', that is not a question that needs to be determined here.[65]
[65] T 1 - 4, lines 40 - 46.

[100] However, the statutory declaration would appear to contradict Mr Mateo's contemporaneous accounts of the workplace event considered to have caused his left shoulder injury.
[101] In his 14 March 2019 report, Dr Robinson observed that "Joselito seems to be running his own agenda on this shoulder injury considering the injury occurred in October 2018 and he declined the suggestion of surgery in November. I have reduced him to 6 hours a day, at his request and I await approval to proceed with surgery on the left shoulder."[66]
[66] Exhibit 1, 138.
[102] In the Functional Capacity Assessment Report prepared by Ms Leanne Loch dated 29 November 2018, she noted that "Mr Mateo reported a sudden onset of left shoulder pain on 17/10/18 which he attributed to lifting a commercial cooking pot full of water and
food scraps…"
[103] Ms Loch further stated that "Mr Mateo reported no other joint problems and reported no prior history of shoulder pain."[67] Mr Mateo's claim as contained in her report is belied by the medical evidence regarding various consultations with medical practitioners regarding his left shoulder problems over several years.
[67] Ibid 95 - 96.
[104] At the Hearing, Mr Mateo confirmed in cross-examination that his left shoulder hurt right from his first day of work at the Mater on 30 July 2018.[68]
[68] T 1 - 34, lines 15 - 35.
[105] If that was indeed the case, it would seemingly contradict Mr Mateo's position that the accepted left shoulder injury was caused by his work in the Mater kitchen. Further, I note that Mr Mateo had ceased work as a leading hand at an abattoir a mere four months prior to his commencement at the Mater.[69]
[69] Exhibit 1, 293.
[106] Given the left shoulder claim was already accepted by WorkCover, and indeed the operation occurred on 4 April 2019 after some extensive deferrals on Mr Mateo's part, I hold some reservations as to why the step to amend the timeframe of injury was taken almost three years after the event. In the normal course, it is accepted that one's recollection of an event is more likely to fade with time, rather than become clearer.
[107] Mr Mateo also gave different people different reasons for why he wanted to delay the left shoulder surgery, after the claim was accepted by WorkCover. In November 2018, Mr Mateo told Ms Leanne Loch that he was "reluctant to undergo surgery at this time since his wife and their 5 children and partners will travel to Vietnam for his son's wedding in December."[70] Mr Mateo told Mr Brendan Host that he would have surgery in January 2019, due to his planned annual leave and then his doctor's leave.[71] Then on 22 February 2019, Mr Mateo told Ms Ceh that "if there has been no improvement in the MRI then Dr Robinson has recommended surgery which he is scared of having. He discussed his fears of light anaesthetics but said he understood he will be asleep fully for the operation."[72]

[70] Ibid 96.
[71] Ibid 307.
[72] Ibid 269.
[108] This muddled narrative reflected poorly on Mr Mateo's credit. The contents of the statutory declaration and Mr Mateo's evidence at the Hearing that his left shoulder hurt right from his first day at the Mater do not comfortably coexist with his contemporaneous reports of the 19 October 2018 pot wash event to Dr Robinson, Ms Loch and others and his accepted account as provided to WorkCover.
[109] Whilst this is not a key factor in this Decision, when considered alongside other factors explained below, Mr Mateo's recount causes me some disquiet.
Was the right shoulder condition an aggravation of the left shoulder condition - or an aggravation of an underlying degenerative condition?
[110] Dr Robinson and Dr Low share the opinion that Mr Mateo aggravated his right shoulder whilst attempting to rehabilitate his left shoulder.[73] Notwithstanding, upon review of an ultrasound and MRI of Mr Mateo's right shoulder dated 13 March 2019 and 6 June 2019 respectively, Dr Low and Dr Robinson agreed that the findings in those images were consistent with a degenerative rotator cuff tear in a person around 50 years of age.[74]
[73] Ibid 155, 189.
[74] T 2 - 102, lines 13 - 15, 19, 27 - 31; T 2 - 45, lines 1 - 3, 16 - 17.
[111] Dr Soares rejected the notion that "shoulder pain in the right shoulder is as a consequence of overuse secondary to his left shoulder injury"[75] but:
[75] Exhibit 1, 146.

• is of the view that Mr Mateo's "symptoms are due to an exacerbation of underlying degenerative rotator cuff partial tears";[76]
• what Mr Mateo "was doing in the kitchen was - was heavyish enough to - to make his pain slightly worse, but was not the cause of the injury";[77]
• considers certain activities caused "an exacerbation, rather than an aggravation"[78] and "a previously symptomatic injury to become symptomatic, to become more symptomatic without changing the nature of the injury itself";[79]
• accepts the proposition that certain activities "caused an increase in the pain that caused the underlying condition to become symptomatic";[80] and
• is of the view "Work-related activities exacerbated his symptoms."[81]
[76] Ibid.
[77] T 3 - 9, lines 25 - 27.
[78] T 3 - 16, lines 35-36.
[79] Ibid lines 38 - 40.
[80] Ibid lines 42-43.
[81] T 3 - 28, lines 42 - 43.
[112] Dr Halliday considered pain in Mr Mateo's right shoulder to be a "reflection of his constitutional condition."[82] During cross-examination, the following exchange took place:
[82] T 3 - 59, lines 44 - 45.
So when you say there's a degenerative shoulder, the degeneration is age-related, according to some of the reports I've read, where he had age-related degeneration of his rotator cuff in the right
shoulder; is that correct?---Yeah, a con – I call it constitutional degeneration. It can occur in younger
people.[83]
[83] T 3 - 51, lines 5 - 8.

[113] Despite the divergent views with respect to the relationship between the left and right shoulder conditions, the four orthopaedic surgeons agreed that Mr Mateo suffered from a pre-existing degenerative right shoulder condition.[84]
[84] T 2 - 102, lines 39 - 41; T 2 - 105, lines 1 - 4; T 2 - 33, lines 40 - 47; T 3 - 16, line 30; T 3 - 38, lines 22-33.
[114] I accept that Mr Mateo suffers from both a left shoulder injury and a pre-existing degenerative right shoulder condition. Pursuant to s 32(3)(b) of the Act, an "injury" includes an aggravation of a personal injury, if the aggravation arises out of, or in the course of employment and the employment is a significant contributing factor to the aggravation.
[115] In WorkCover Queensland v BHP (Qld) Workers' Compensation Unit, Hall P concluded (citations omitted):
It is settled that the activation of pain is to be equated with the aggravation of an underlying disease; i.e., it is sufficient that an asymptosmic disease becomes painful, even if there is no change to the underlying pathology.[85]
[85] (2002) 170 QGIG 142.

[116] Further, in Mimica v Q-Comp, Commissioner Blades cited the view of de Jersey P in Pleming v Workers' Compensation Board of Queensland[86] that "pain brought on by work activity may constitute an aggravation of a pre-existing injury, even though no pathological change takes place."[87]
[86] (1996) 152 QGIG 1181.
[87] [2007] QIRC 3, 4.

[117] In Heald v Q-COMP, Hall P said:

A degenerative condition may be aggravated in the sense that it may be made worse, i.e. after the aggravation the degenerative disorder is worse than it was before. But there can also be aggravation in the sense of an increase of symptoms associated with a degenerative condition which, after the cessation of the symptoms, returns to its pre-aggravation state.[88]
[88] (2004) 177 QGIG 769, 771.

[118] It has been accepted that an aggravation can include an "exacerbation" of an injury.[89]

[89] Omanski v Q-COMP [2013] ICQ 7, 2 [15]; Karipa v Q-COMP [2013] QIRC 161, 6 [42].

[119] I am not convinced by the opinions of Dr Robinson and Dr Low with respect to the impact that rehabilitation of Mr Mateo's left shoulder had on his right shoulder. Based on the unanimous view of the orthopaedic surgeons, I accept that Mr Mateo suffers from a pre- existing degenerative right shoulder condition and consider it more likely that any symptoms he suffered as at 11 March 2019 stemmed from that condition rather than as a consequence of the left shoulder injury.
[120] On that basis, I reject Mr Mateo's argument that he has suffered an aggravation of his left shoulder injury. Rather, if anything, I consider Mr Mateo may have suffered an aggravation of his pre-existing degenerative right shoulder condition. Based on the evidence, I find:

•

Mr Mateo's pre-existing degenerative right shoulder condition had been asymptomatic since 30 October 2009;
• on 11 March 2019, Mr Mateo experienced an "activation of pain";

•

on and from 11 March 2019, Mr Mateo experienced an "increase of symptoms associated with a degenerative condition"; and

•

Mr Mateo's pre-existing degenerative right shoulder condition has been exacerbated somewhat.
[121] On that basis, I conclude that Mr Mateo's pre-existing degenerative right shoulder condition has been aggravated in a medical sense. However, in Carman v Q-COMP, Hall P said (emphasis added):
It must be remembered that Pleming v Workers' Compensation Board of Queensland (1996) 152 QGIG 1181 is an often cited but ageing authority. The worker who was successful on the point of law about the content of 'aggravation' was unsuccessful on the facts. Pleming v Workers'
Compensation Board of Queensland, ibid, does not decide that a worker afflicted by a degenerative back suffers an injury if the back becomes painful at work. Neither does Pleming, op. cit., establish that a worker with a degenerative back suffers an "injury" if the work is a cause of the onset or intensification of pain. Pleming, op. cit. establishes that a worker with a degenerative back will suffer an injury where the back becomes painful or more painful and the employment is a significant
cause of the onset or intensification of pain.[90]
[90] [2007] ICQ 43.

[122] Although I have accepted that there has been an aggravation of Mr Mateo's pre-existing degenerative right shoulder condition, Mr Mateo must demonstrate that the aggravation arose out of, or in the course of his employment and that his employment was a significant contributing factor to that injury.[91]
[91] Workers' Compensation and Rehabilitation Act 2003 (Qld) s 32(3)(b).
Chronology
[123] The injury to Mr Mateo's left shoulder occurred either on or in the period prior to, 19 October 2018.
[124] Mr Mateo was then under a series of restricted duties RTW plans in the period from 20 October 2018 until his left shoulder surgery on 4 April 2019.
[125] Dr Robinson's evidence was that he recommended Mr Mateo undergo left shoulder surgery in November 2018 but that Mr Mateo had "put it off until April 2019 as he was trying to get it to settle down non-operatively."

[126] In an email dated 14 November 2018, Mr Brendan Host told Ms Tracey Ceh that:

Lito informed me that he needs major surgery on his shoulder but has asked the doctor to postpone the op as he wants to go on leave and then the doctor will be on leave so wont happen till end of Jan next year and he will be on quartertone until the op.[92]
[92] Exhibit 1, 307.

[127] Mr Mateo and his family went on an overseas holiday to the Philippines, Vietnam and Thailand between 23 December 2018 and 2 January 2019 to attend his son's wedding.[93]
[93] T 3 - 30, lines 1 - 3.

[128] Mr Mateo claimed his right shoulder was sore after work on 11 March 2019.

[129] Notwithstanding that, Mr Mateo did come to work on 13 March 2019 - but thought perhaps he did not come to work again thereafter.[94]
[94] T 1 - 70, lines 42 - 47; T 1 - 71, line 1.
[130] In his 14 March 2019 report, Dr Robinson noted that "I have reduced him to 6 hours a day, at his request and I await approval to proceed with surgery on the left shoulder."[95]
[95] Exhibit 1, 138.
[131] The surgery on Mr Mateo's left shoulder was done on 4 April 2019. Mr Mateo did not return to work at the Mater kitchen from that time.[96]
[96] T 1 - 71, lines 3 - 8.
Work tasks performed in the relevant period
Normal Duties of a Food Service Assistant
[132] The normal duties of a food service assistant are captured in the document titled "Inherent
Requirements – Food Service Assistant".[97] I will not reproduce that list of work tasks in
[97] Exhibit 1, 240.
this Decision.
[133] There are three distinct roles on the plating line:

a. A starter position which involves…reading the docket detailing the patient's order and
placing items such as salt, pepper and cutlery on a tray along with a base if a hot meal has
been ordered.
b. A middle position which involves placing items such as biscuits, coffees, bread rolls and drinks onto the tray. This is considered to be the lightest role in the kitchen.
c. The expediter position which involves placing hot meals onto the tray, checking that the meal is correct, allocating the meal to a trolley and placing the tray into the trolley. The person in the expediter position then pushes the trolley from the end of the plating line to the entrance of the kitchen (a distance of approximately 10 to 15 metres) where it is collected by the dining hosts who deliver the meals to patients. That route involves turning the trolley. Only the person performing the expediter role pushes the trolley.[98]
[98] Respondent's Closing Submissions filed 6 October 2021, 3 [21].

[134] The key point is settling the factual dispute between the parties as to the actual work tasks performed by Mr Mateo in the relevant period.[99]
[99] 20 October 2018 to 11 March 2019.
[135] Mr Mateo said his duties included loading meal trays into food trolleys, then pushing and pulling them into position, ready for dispatch to patients. That is denied by the Regulator.
Restricted Duties and RTW Plans

[136] After Mr Mateo's left shoulder injury on 19 October 2018, he was placed on restricted duties under a series of various RTW plans.

[137] From 11 March 2019, the Return to Work Plan included:

Occasional lifting up to 6 kg in comfortable postures with the right hand taking most of the weight eg. for handling meal trays at expeditor station or for crockery.
Frequent overhead reaching with right hand. No overhead reaching with left hand.
Frequent bilateral forward reaching.
Frequent bending.
Work at the dishwashing line. No requirement to restrict hours.[100]
[100] Appellant's Amended Statement of Facts and Contentions, filed 26 July 2021, 6 [2S].

[138] I note that the above inclusions were also part of the RTW plans issued for the period 20 October 2018 to 24 February 2019, then again for the period 24 February 2019 to 24 March 2019.
[139] The RTW plan extract above self-evidently contains the inclusions of lifting meal trays at the expeditor station with the right hand taking most of the weight, frequent overhead reaching with the right hand, frequent forward reaching and frequent bending.
[140] As the RTW plans are developed for the individual worker, it seemed odd to me that those tasks would have been included in the personalised plan if Mr Mateo was not required to undertake them.
[141] Though Ms Ceh and Ms Loch's evidence was that the plans and assessments contained the scope of tasks that the worker could do - rather than did do, or must do.
Regulator's position

[142] The Regulator submitted that Mr Mateo was not working the same duties as other staff since his left shoulder injury in October 2018 because he:
1.         Worked restricted duties at the Mater.
2.         Was placed in a supernumerary position assisting another kitchen staff member.
3.         Performed duties which all required less than 60 (degrees) of shoulder flexion, with the
majority of the tasks being performed at waist level.
4.         Performed duties which did not involve lifting items heavier than 5 or 6 kilograms.
5.         Did not perform duties that required him to push or pull food trolleys or place food trays in
the food trolleys or remove food trays from the food trolleys.[101]
[101] Respondent's Statement of Facts and Contentions filed 11 August 2021, 19 [6cii].

[143] The Regulator submitted that was also the case on 11 March 2019, when Mr Mateo:

1.         Worked restricted duties.
2.         Was placed in a supernumerary position assisting another kitchen staff member.
3.         Was placed on the expeditor line in the middle facilitator position assisting another kitchen
staff member perform the tasks associated with that role.
4.         Performed the tasks associated with the middle facilitator position which involved placing
items such as tea bags, coffee satchels, bread rolls and drinks onto a patient's tray, none of
which weighed more than 500 grams or were located in positions that required the Appellant
to reach for them, and sliding the tray along the plating line.
5.         Performed duties which all required less than 60 (degrees) of shoulder flexion, with the
majority of the tasks being performed at waist level.[102]
[102] Ibid.
Appellant's position

[144] On 11 March 2019, Mr Mateo worked a full eight hour day and both his left and right shoulders felt sore when he was at home after work.[103]
[103] Appellant's Amended Statement of Facts and Contentions, filed 26 July 2021, 6 [2U].
[145] Mr Mateo's right shoulder "…injury came on when he was on restricted duties at the
Mater but working the same duties as other staff. (He) commenced duties retrieving cutlery, taking patient orders which were placed onto a tray and after two hours he was moved to the expeditor area which involved putting trays onto a trolley and, once full, pushing the trolley "to distribution position"."[104]
[104] Ibid [3].
[146] He loaded and pushed the food trolleys using only his right hand. As the kitchen area was cluttered, Mr Mateo had to stop and start the trolley. The force required to push the trolley exceeded the restricted duties plan. The action of loading the bottom rows of the
food trolley required Mr Mateo to "…bend at the waist and reach out in a "flexion" type
action repetitively."[105]
[105] Ibid 7 [3G].
Mr Mateo's evidence

[147] Mr Mateo's evidence was that only a few weeks after his left shoulder injury, the reality was that he was working the same duties as other kitchen staff.
[148] Mr Mateo was cross-examined on his account of the duties undertaken in the kitchen in the period after his left shoulder injury. That exchange is reproduced at [55] of this Decision.
[149] Mr Mateo maintained that his work duties included bending to load meal trays, pushing
trolleys and reaching above chest height – and that he was not merely assisting another
worker as a supernumerary in the kitchen.
[150] On 11 March 2019, Mr Mateo's evidence was that he worked a full eight hour day in the expediter position, "pushing and pulling all the trolleys and it was really, really busy
day…Everything is really cluttered and everything is in the [indistinct] really busy
one."[106]
[106] T 1 - 21, lines 24 - 28.
Incident Report

[151] In the Incident Report completed on 13 March 2019, Mr Mateo stated that he was:[107]

[107] Exhibit 1, 211, 311; WCR Notice of Appeal filed 27 November 2019, Annexure A, 1 [6].

…performing my normal duties e.g. making juices and working on the line.

[152] That account would seem to be consistent with Mr Mateo working on the middle position, the lightest role in the kitchen and the position the supervisors said someone on light duties would be allocated to as a supernumerary.
[153] Though that report also stated that Mr Mateo had been "Pushing objects"[108] amongst other tasks, in kitchen conditions he had described as "Cluttered".[109]
[108] Exhibit 1, 311.
[109] Ibid 313.
[154] At the Hearing, Ms Alison Devereaux's evidence was that reference was based on Mr Mateo's comment and that did not align with her own observations upon inspection.[110]
[110] T 1 - 99, lines 8 - 27.
Mater Private Hospital records

[155] Only a month earlier,[111] it was noted that Mr Mateo "Has been put on light duties – no
[111] 14 February 2019.
pushing / pulling or overhead activities."[112]
[112] Exhibit 1, 51.
Work Capacity Certificates – 13 March 2019

[156] In the Work Capacity Certificate completed by Dr Jeremijenko on 13 March 2019, Mr Mateo was recorded as having been "Putting things inside trays. Putting them onto trolleys. On light duties due to L shoulder. Only using R arm for work."[113]
[113] Ibid 136.
[157] In the Work Capacity Certificate completed by Dr Robinson on 13 March 2019, Mr Mateo was recorded as having stated the mechanism of injury to be "Injury lifting at work".[114]
[114] Ibid 135.
Work Capacity Certificate – 29 March 2019

[158] On 29 March 2019, Dr Anderson noted the mechanism of injury to be "putting things inside trolley and using right arm more."
WorkCover

[159] Mr Mateo told WorkCover on 14 March 2019 that:

He's working in area on suitable duties but really is working the same as other staff. On started and expediter line, pushing and pulling the trolleys.
When I worked full 8 hours Monday 11 March 2019 I felt pain left shoulder and that's why TMS reduced the hours.
…
Placed on starter line where have to get cutlery and go round and take order of patient and put it on tray and pass onto middle person and after 2 hours will be moved to expediter which is putting tray onto trolley and when push trolley to distributor position ready to be taken to wards by someone.[115]
[115] Appellant's Amended Statement of Facts and Contentions filed 26 July 2021, 7 [3K]; Exhibit 1, 219.

[160] I note that Dr Robinson reported that Mr Mateo's working hours had been reduced at his request. That difference causes me to question whether Mr Mateo's account to WorkCover was entirely accurate.
Mr Brendan Host

[161] Mr Host explained that a person on light duties would be "an extra person" and "would need to follow the return to work program that they've been given".[116] Mr Host could not be certain as to what role Mr Mateo undertook during the relevant period, but contemplated he would have acted in the middle facilitator role, helped out as a floater or potentially in the sandwich room.[117]
[116] T 4 - 82, lines 39 - 43.
[117] T 4 - 83, lines 10 - 12.
[162] Mr Host explained that a floater would make drinks, engage in preparation, make special orders and deliver to wherever required.[118] Mr Host further explained that a person on light duties would assist in another role but would not be in charge of fully completing that role.[119]

[395] All that changed when an increase to Mr Mateo's working hours to the pre-injury average of 23 hours per week jeopardised the more favourable loan repayment arrangements negotiated with his bank. Mr Mateo expressed concern that would result in a negative effect to his take home pay. He sought the Mater's support in retaining his weekly working hours to less than 20 hours per week, without success.
[396] The following month, Mr Mateo complained that both shoulders had become sore after work. Broadly, Mr Mateo attributed his shoulder pain to working a full 8 hour shift and the nature of his work duties undertaken; though I have found his accounts to be inconsistent.
[397] The result was that Dr Robinson then reduced his weekly working hours at Mr Mateo's request.
[398] As he had done so with respect to the prior left shoulder injury, Mr Mateo sought workers' compensation for the right shoulder condition.
[399] Mr Mateo finally accepted Dr Robinson's advice, undergoing the recommended surgery for his original left shoulder injury in April 2019.
[400] WorkCover denied Mr Mateo's application for workers' compensation for his right shoulder condition.
[401] WorkCover's decision was confirmed by the Regulator in its review decision of 4 November 2019.

[402] Mr Mateo appealed the Regulator's decision. That is the subject of this Decision.

[403] In a curious twist, Mr Mateo swore a Statutory Declaration last year by which he sought to amend the date of his left shoulder injury from a 'set date' to an 'over a period of time event' occurring from 30 July 2018 to 19 October 2018.
[404] In the course of this Decision, I have commented on several matters impacting on Mr Mateo's credit. He was not straight with either his employer, WorkCover, allied health professionals and even some doctors when giving account of his prior medical history. He was cagey about the overseas family holiday. Mr Mateo's agitation to decrease his weekly hours of work to obtain a benefit, proximate to the onset of his right shoulder condition symptoms, also disturbed me. Where Mr Mateo's evidence was unable to be corroborated by others, I have weighed it accordingly.
[405] Nonetheless, I have found that Mr Mateo's right shoulder condition did arise in the course of his employment at the Mater - and there has been an aggravation of his pre-existing degenerative right shoulder condition.
[406] Those two findings are not enough for Mr Mateo's case to succeed. Mr Mateo must also demonstrate that his employment was a significant contributing factor to the aggravation of his pre-existing degenerative right shoulder condition.[281]
[281] Workers' Compensation and Rehabilitation Act 2003 (Qld) s 32(3)(b).
[407] Mr Mateo has not proved to the required standard that his right shoulder condition was caused by use of the arm at angles in excess of 60 degrees to the axis of the body, under a load. I am not persuaded that there is sufficient evidence before the Commission to accept Mr Mateo's contention that his employment at the Mater was a significant contributing factor to his right shoulder condition.
[408] I order accordingly.
Orders

1. The appeal is dismissed.
2. The decision of the Workers' Compensation Regulator is confirmed.
3. The Appellant is to pay the Respondent's costs of the Hearing, to be agreed or, failing agreement, to be subject to a further application to the Commission.

v Q-COMP and Coyne (2003) 172 QGIG 1447.

(2000) 49 NSWLR 262, [136].

Contentions filed 11 August 2021, 31 [42].

expediter role.

filed 27 November 2019, Annexure A, 2 [13].

43 Ibid 147.

(2000) 49 NSWLR 262, [136].

Ms Ceh, his supervisor, Doctors Robinson and Jeremijenko.

Ltd v Q-Comp [2013] ICQ 13, 3.

Ms Riedel:	…I suggest to you, Mr Mateo, that when you returned to work after injuring
your left shoulder, in October 2018, you were put into a supernumerary role. So you were an extra in the kitchen?
Mr Mateo:	---Yes.
Ms Riedel:	Yes. So you were on light duties?
Mr Mateo:	---On the first weeks. Yeah.
Ms Riedel:	On the first weeks. Well, I'm suggesting to you that for the entirety of your time in the kitchen, after injuring your left shoulder, you were always on light duties?
Mr Mateo:	---No.
Ms Riedel:	No?
Mr Mateo:	--- [indistinct]
Ms Riedel:	And I suggest to you that for the entirety of the time after you injured your left shoulder, you were as a supernumerary?
Mr Mateo:	--- [indistinct]
Ms Riedel:	And I suggest to you that during that entire time, after injuring your left shoulder, you never had a specific role?
Mr Mateo:	--- [indistinct]
Ms Riedel:	You were just as a supernumerary?
Mr Mateo:	--- [indistinct]
Ms Riedel:	And, in particular, I suggest that you were rostered simply to help the people who were working on the plating line, and, in particular, the people who were working in a starter or the middle position?
Mr Mateo:	--- [indistinct]
Ms Riedel:	I suggest to you that even if you were working in the starter and the middle positions, those roles didn't involve reaching above your head, did they?
Mr Mateo:	---I think reaching the – the – the order from the – from the patient was already above my head. And reaching the bread, as a midd – as in the middle, is
already above your head. Reaching the drinks at the back or the [indistinct]
back is already reaching – reaching above your head. Reaching the cooked food that the chef prepared is reaching over your head – over your chest
already.
Ms Riedel:	Well, I suggest to you that those tasks weren't above your head height, and if they were then any items that you needed to reach for were moved by your
colleagues to a – to below chest height?
Mr Mateo:	---No.
Ms Riedel:	And I suggest to you that those were the requirements of – that were set out in
all of the return to work programs that we've been through, that you were not to reach above chest height?
Mr Mateo:	---Yeah.
Ms Riedel:	So your programs – you agree that the programs stated very clearly that you
were not to work above chest height?
Mr Mateo:	---I'm not supposed to reach overhead – chest high. Yes.
Ms Riedel:	Yes. And I suggest to you that various – firstly, that the roles – the start and
the middle positions, on the plating line, didn't involve reaching above chest height?
Mr Mateo:	---It does involve chest high reaching.
Ms Riedel:	And I suggest to you that steps were taken by your colleague and by the supervisors, to move anything that was above chest height to a height that you
could reach without not – so in your compliance with your programs?
Mr Mateo:	---Some of the tasks being for a starter, the middle and the expediter, would be using above chest height.
Ms Riedel:	Now, when you returned to work on the return to work program – so after
injuring your left shoulder in October 2018, I suggest to you that you did not work in the dish room?
Mr Mateo:	---No.
Ms Riedel:	Do you agree with that? So - - -?
Mr Mateo:	---First weeks. Yes.
Ms Riedel:	So the first – you're saying that the first couple of weeks back - - -?
Mr Mateo:	---Yeah.
Ms Riedel:	- - - you didn't work in the dish room?
Mr Mateo:	---Is it after the injury?
Ms Riedel:	After the injury? Af - - -?
Mr Mateo:	---First weeks I didn't work in the dish – dishwashing. Yes.
Ms Riedel:	So I'm suggesting to you that from the 28th – sorry – from the 19th of October
2018 through to March 2019, you did not work in the dish room?
Mr Mateo:	---I've work in the dish room.
Ms Riedel:	And I suggest to you that during that period, from the 19th of October 2018 through to the March 2019, you did not work in the expediter position?
Mr Mateo:	---I work in the expediter.
Ms Riedel:	And I suggest to you that you weren't pushing trolleys?
Mr Mateo:	---I pushed the trolley.
Ms Riedel:	And you didn't put trays on the trolleys?
Mr Mateo:	---I put the tray in the trolley.
Ms Riedel:	And I suggest to you that there was no frequent reaching and bending below the shoulder?
Mr Mateo:	---There's frequent and repetitive use of that when you doing – when you are in this expediter position or in the – even though it's starter, middle, expediter,
you are doing a repetitive action [indistinct]
Ms Riedel:	And I suggest to you, Mr Mateo, that you weren't doing the same duties during
that period of 19 October 2018 to March 2019 – you weren't doing the same
duties as the other staff, during that period?
Mr Mateo:	---I was treated as this – as a regular employee. So what I'm doing that way is
the same thing that the regular employees are doing.[26]

a.	A starter position which involves…reading the docket detailing the patient's order and
placing items such as salt, pepper and cutlery on a tray along with a base if a hot meal has been ordered.
b.	A middle position which involves placing items such as biscuits, coffees, bread rolls and drinks onto the tray. This is considered to be the lightest role in the kitchen.
c.	The expediter position which involves placing hot meals onto the tray, checking that the meal is correct, allocating the meal to a trolley and placing the tray into the trolley. The person in the expediter position then pushes the trolley from the end of the plating line to the entrance of the kitchen (a distance of approximately 10 to 15 metres) where it is collected by the dining hosts who deliver the meals to patients. That route involves turning the trolley. Only the person performing the expediter role pushes the trolley.[98]