WC/2009/105 - Queensland Industrial Relations Commission

CITATION: John Patrick Grogan AND Q-COMP
(WC/2009/105) - Decision
<http://www.qirc.qld.gov.au>
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Workers' Compensation and Rehabilitation Act 2003 - s. 550 - procedure for appeal
John Patrick Grogan AND Q-COMP
(WC/2009/105)
DEPUTY PRESIDENT BLOOMFIELD
7 December 2010
DECISION
Introduction
[1]
This decision relates to an appeal by Mr John Patrick Grogan (the Appellant) pursuant to s. 550 of the Workers'
Compensation and Rehabilitation Act 2003 (the Act) against a decision of the Review Unit, Q-COMP (QCOMP) dated 5 November 2009 in which Q-COMP confirmed an earlier decision by WorkCover to reject the
Appellant's application for workers' compensation.
[2]
The application related to an ankle injury allegedly sustained during the course of an incident on 11 July 2008.
WorkCover had accepted an earlier application, dated 22 August 2008, for an injury the Appellant sustained to
his shoulder during the same incident. However, it was not until 30 June 2009 that the Appellant sought, by oral
application, to include the ankle injury in his application.
Relevant legislation
[3]
Section 32 of the Act relevantly provides:
"32 Meaning of Injury
1) An injury is a personal injury arising out of, or in the course of, employment if 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;
(ii) a disease;
(iii) a medical condition if the condition becomes a personal injury or disease because of the
aggravation.".
Onus
[4]
The onus is on the Appellant to establish that he sustained an injury to his right ankle on 11 July 2008 which
arose out of or in the course of his employment where the employment was a significant contributing factor to
the injury. The onus of proof is to be established on the balance of probabilities.
[5]
Q-COMP does not dispute that the Appellant was a "worker" within the meaning of that term as used in the Act.
Further, Q-COMP does not dispute that in the course of an incident which occurred on 11 July 2008 the
Appellant sustained an injury to his right shoulder.
Evidence-in-chief on behalf of the Appellant
[6]
The Appellant said he was engaged as a Workplace Health and Safety Officer (WHSO) by Pradella
Constructions Pty Ltd (Pradella) when he injured his shoulder and ankle on 11 July 2008 while helping another
worker carry a timber pigeon hole filing cabinet up a flight of stairs into a new office area Pradella was setting
up. The pigeon hole cabinet measured approximately 1,500 x 800 x 500 and was quite heavy. The other worker,
who was holding the top end of the cabinet, was leading the way up the stairs and the Appellant was following
him while holding the bottom end.
[7]
Nearing the top of the stairs the other worker seemed to lose his grip on the front end of the cabinet. The
Appellant said he took the full weight of the cabinet and stepped backwards. As he did he felt a sudden jar in his
shoulder. He also allegedly hit his ankle on the top edge of a step as he stepped backwards. After he regained
his balance the two workers carried the cabinet up the remaining stairs and put it down.
2
[8]
The Appellant said he felt more pain in his shoulder and his ankle was aching but he didn't think the ankle pain
was such a big deal at the time. The pain was more in his shoulder than in his ankle. He carried a few more
light items into the new office area and then he stopped. He put some ice packs on his shoulder and also on his
ankle to relieve the swelling in his ankle. However, his shoulder "was aching pretty bad.".
[9]
Ultimately, on or about 28 August 2008, he sought medical attention from his regular General Practitioner, Dr
Hossain. He said he told Dr Hossain about the incident on the stairs, including the injury to his ankle. He also
said that at the time he saw Dr Hossain his shoulder was giving him three times as much pain as the ankle.
[10]
Dr Hossain referred the Appellant to an Orthopaedic Surgeon, Dr Robert Cooke. The Appellant had to wait a
few weeks for an appointment and finally saw Dr Cooke on 15 October 2008. Dr Cooke sent him for X-rays and
a CAT scan.
[11]
The Appellant said he completed an application for workers' compensation after he had seen Dr Hossain. The
application for compensation recorded the nature of the injury as "Shoulder, trauma to joints/ligaments not
classified". The Appellant said he did not mention the ankle injury in the workers' compensation application
because "I thought the ankle may be a sprain and it would right itself, but as the shoulder progressed after
having treatment and operations, the exercise in the pool and the doing - I've been doing some exercises walking
- that the ankle started to get worse.". (Transcript 2-11)
[12]
The Appellant also said he had broken his fibula in 1971 while playing football and had previously experienced
swelling in his right leg while working on job sites. "(I)t caused a little bit of pain, but it would go down
overnight … It all depends on how many hours on my feet I was, on the concrete, walking up and down stairs. …
It wasn't a continuous thing, it was just that it happened every now and again.". (Transcript 2-11) However, the
problems he experienced with his ankle were worse after the alleged incident on 11 July 2008 than previously.
[13]
The Appellant said he had participated in a number of telephone and face-to-face meetings with Officers of
WorkCover. In one meeting with Ms Sealby he told her about his ankle and how he had allegedly injured it. "I
told her that the ankle was giving me a bit of grief, you know with the walking exercises I'm having and it didn't
seem to be getting better which I hoped it was going to thinking it would be just a sprain.". (Transcript 2-12)
[14]
He also recalled several other conversations with Officers of WorkCover regarding his shoulder and also his
ankle. "At each conversation I told them my ankle wasn't improving at all and it was getting worse. I don't
know whether it was from doing the exercise in the pool or the walking, just doing too much, but nothing seemed
to be getting better, it was getting worse.". (Transcript 2-13)
[15]
Dr Hossain said his notes recorded he first saw the Appellant in relation to ankle pain on 29 August 2008.
When it was put to him that his notes did not support that as the date, Dr Hossain said if the notes were followed
through, from 2 September 2008 and then to 10 September 2008, there was mention of right ankle pain on that
date along with right shoulder pain.
[16]
In response to a question as to whether he recalled the Appellant advising him the reason he was suffering ankle
pain Dr Hossain responded "actually what I recall was that he was clearing a cupboard and he fell and the
whole cupboard came down on him, hit on the shoulder and possibly the ankle was twisted at that time.".
(Transcript 2-26) Dr Hossain thought he was told about the ankle injury during the initial consultation "but I
was more concentrating on the shoulder because he was not able to move the shoulder at all. ... but he walked
(into) my surgery and I thought the ankle injury was not that grievous at that time … I had to arrange some
treatment for the shoulder but subsequently on 10th of September I did mention on (sic) the right ankle pain
because at that time he was fairly telling (me) the right ankle was … giving him a lot of trouble.". (Transcript
2-26) Dr Hossain also denied having seen the Appellant for either ankle pain or shoulder pain before 29 August
2008.
[17]
Dr Robert Cooke said he first saw the Appellant on 15 October 2008 after he was referred by Dr Hossain in
relation to an injury in relation to his right shoulder. Dr Cooke referred the Appellant for an MRI scan of his
shoulder, which was undertaken on the following day.
[18]
Dr Cooke's hand written notes of the Appellant's first visit (not tendered) recorded that the Appellant's right
shoulder had been troubling him for three months but it had been worse over the previous two months. The
Appellant described how he injured his shoulder lifting some furniture up some stairs with the assistance of
another person. The other person lost his grip on the pigeon hole furniture and the Appellant stepped back to
maintain a steady hold on the furniture. As he did his foot slipped on the top of one tread of stairs onto the next
and he felt his ankle bang against the edge of the top of stair tread. He maintained his hold on the furniture and
stepped up and placed it down somewhere safe.
3
[19]
A few days later, because the Appellant was complaining about the pain in his ankle, but had not been referred
about that issue, Dr Hossain also agreed that Dr Cooke should also look at the Appellant's ankle. As a result, he
referred the Appellant for a CT Scan of his right ankle, which happened on 21 October 2008.
[20]
In a letter to the Appellant's Solicitors on 15 March 2010 (Exhibit 13) Dr Cooke opined:
"1. Your client is suffering from advanced degenerative osteoarthrosis of the tibiotalar joint associated with
recent fractures of anterior marginal osteophytes between the distal fibular and tibial plafond and
extensive severe tenosynovitis of the flexor digitorum, tibialis posterior and flexor hallucis longus tendon
sheaths.
2. I consider that his workplace accident on 11 July 2008 was a significant contributing factor to this
pathology.
3. I consider that the workplace injury created the need for the proposed surgery involving excision and
compression arthrodesis of his right ankle joint along with tenolysis of the involved tendons.
Had he not suffered the injury of interest, then he may well not have suffered any symptoms of any
consequence related to his right ankle until well after retirement age. In other words, the accident of
interest has aggravated and accelerated the degenerative changes to the point where the condition is now
disabling to him while it may not have been the case in other circumstances.
4. His prognosis following successful arthrodesis of his right ankle and tenolysis of the involved tendons is
excellent and he should be then able to return to his pre-injury occupation and duties without
restriction.".
[21]
At the end of the letter Dr Cooke said "I trust this information is of assistance to you in assisting John Grogan in
his battles with WorkCover Queensland.".
[22]
In relation to the pain the Appellant would have suffered from injury allegedly suffered on 11 July 2008, Dr
Cooke said it was all a matter of degree. "His presenting complaint was an acute injury to his shoulder where he
had suffered tears of the supraspinatus and infraspinatus muscles … and the pain with that sort of injury is quite
severe.". (Transcript 2-40) In Dr Cooke's opinion, the Appellant would have placed little significance on the
osteophytic fractures in the front of his tibia on the basis he had advanced degenerative osteoarthrosis of his
ankle dating back to the injury he had suffered when playing football. The osteophyte formation on the front of
the tibia increased the stability of the ankle joint over time which prevented movement. Further, where a person
has chronic osteoarthrosis the synovium (which lines the joint which produces the fluid and is the sensitive part
of the joint) becomes thickened with scar tissue and doesn't have the same degree of sensitivity as an uninjured
joint or a joint without osteoarthrosis. The degree of pain associated with the fracture would have been
significantly less than the acute injury to his shoulder. The pain in his shoulder would have initially overridden
his appreciation of pain in the ankle. (Transcript 2-40 to 41)
[23]
Dr Cooke also opined that the Appellant's reports of increasing of symptoms and signs of swelling, over the
months, was consistent with the description, and timing, of the incident on 11 July 2008. He also said "The
pattern of the bony structure on the CT Scan was consistent in that if you have separation of bone for a long
period of time, it develops thickening of the cortex all around so it becomes a defined or definitive separate piece
of bone which is really forming a false joint with the parent bone. In his case, in this instance, that wasn't the
case.". (Transcript 2-41)
Cross-examination of the Appellant's witnesses
[24]
Under cross-examination, the Appellant said he stopped working after he carried a few light things into the new
office "because it was aching, both my shoulder and my ankle, so then I went into the icebox (sic) and didn't do
anything for the rest of the day.". (Transcript 2-13)
[25]
In response to a question about whether he was able to bear weight on the ankle, he said "I could bear - I was
sort of hovering with it, yes, not full weight on it, I couldn't get the full weight on it.". (Transcript 2-13) He also
agreed he told Dr Saxby (see below) that he was unable to bear weight on the ankle.
[26]
The Appellant agreed he completed an incident report dated 13 July 2008 (which was actually a Sunday) in
which he recorded the nature and extent of his injury. This document (Exhibit 15) contained the following
information:
• Time and date of incident: 10.30am Friday 11/7/2008
• Nature of injury or damage: Shoulder Injury
4
• Description of injury/incident: Carrying book shelving (Pigeon Holes for S/C) from ground floor to upper
office went to put book case down and felt pain in right shoulder. put ice pack on shoulder and
contunioned (sic) to do light duties for the rest of the week.
• How exactly was the damage sustained?: As above
• Name(s) of witnesses: (left blank)
• Describe in chronological order the sequence of events that led to the incident:
1. Lifting furniture from ground floor
2. Up set of stairs
3. Went to put down and felt something give in my right shoulder
[27]
Prior to being asked any questions about what he had actually written on the incident report form, the Appellant
volunteered "… I'd left out the ankle injury because I didn't think it was a big deal at the time. I thought that the
damaged ankle would be just a minor (sic) and that it would heal itself and it didn't.". (Transcript 2-16)
[28]
When he was taken to the "Description of injury/incident", as recorded above, the Appellant responded "… the
record I put down there in sort of an abbreviation (sic) of fashion. I know I should have put down more into it
but -----.". (Transcript 2-16)
[29]
In response to a questions about why he had mentioned placing the ice pack on his shoulder but neglected to
refer to putting an ice pack on his ankle, as he stated in his earlier evidence, the Appellant indicated that he put
ice packs on his ankle at home and whenever he could while at work. He said that on the day it happened he put
an ice pack on his ankle and also on his shoulder. (Transcript 2-17)
[30]
Dr Hossain agreed that if a patient complained of ankle pain he would normally record it in his notes. He also
agreed that the first record he had of any such complaint was on 10 September 2008, saying "(p)ossibly he had
complained (sic) it before but as he walking - like walked in into the surgery, possibly I didn't put much attention
to it but his shoulder was totally dysfunctional and I (was) told some serious injury happened and I was
concentrating on it.". (Transcript 2-28)
[31]
Dr Hossain recollected that the cause of the Appellant's injury to his shoulder and ankle was that "… he was
clearing a cupboard at work and suddenly he fell and the whole cupboard came - fell on him and he hurt his - - - -". (Transcript 2-28)
[32]
Dr Hossain also agreed he had completed a WorkCover questionnaire on 8 October 2008 in relation to his recent
review of the Appellant and that in response to the question "What are the current work-related diagnoses for
your patient?" he had (only) written:
"Right shoulder pain due to full thickness tear of posterior aspect of supraspinatus substantial under surface
tear of subscapularis bursitis.". (Transcript 2-30)
[33]
When asked to explain why he had not recorded anything about the Appellant's ankle, Dr Hossain responded by
saying he had picked up the diagnosis from an ultrasound he had requested and that was what he had written
down. "As there was nothing done for the ankle that time, I didn't mention it. I didn't have any clear picture of
the ankle that time.". (Transcript 2-30)
[34]
In a letter to the Appellant's Solicitors on 2 March 2010, Dr Hossain reported that he failed to record the
Appellant's reference to ankle pain when he first saw him on 2 September 2008 (sic) but that he had included the
reference to ankle pain in his notes on 10 September 2008.
[35]
In the same letter, Dr Hossain informed the Appellant's Solicitors he provided "medical treatment" for the ankle
pain at the same time. When questioned about what the "medical treatment" involved, Dr Hossain said he had
provided anti-inflammatory medication, Mobic, and asked the Appellant to strap the ankle with a crape bandage.
However, none of this was recorded in his notes.
[36]
Dr Cooke said the fracture he diagnosed from his examination of the CT scan had, in his opinion, happened
recently but he couldn't say how recently.
[37]
Dr Cooke also told Mr Sapsford, who appeared for Q-COMP, that he hadn't recorded any mention of the
Appellant's ankle in his notes of 15 October 2008 because the Appellant had not been referred about his ankle.
Nonetheless, by 21 October 2008 he had referred the Appellant for diagnostic imaging of the ankle.
[38]
In response to a number of questions about why he had not mentioned the Appellant's ankle injury in a series of
letters sent to WorkCover in relation to the Appellant's shoulder injury, Dr Cooke said he would have been
wasting his time mentioning any injury other than the shoulder injury because that was the only claim number he
had been provided with. "You're wasting your time writing to them and wasting your time talking to them until
such time as the claimant makes a claim for that (other) injury. So from my point of view I was dealing with this
5
man with regard to his right shoulder which was referred to me correctly by his General Practitioner and which
I'd been communicating with WorkCover Queensland about.". (Transcript 2-43 to 44)
[39]
However, Dr Cooke also agreed that a letter he had written to WorkCover on 3 July 2009 in relation to the
Appellant's ankle contained the same claim number assigned to the Appellant's claim concerning his shoulder
injury. In this letter, Dr Cooke gave a detailed account of the treatment he had provided to the Appellant in
relation to both his shoulder and ankle since he first saw him on 15 October 2008 and sought WorkCover's
permission to undertake surgical arthrodesis of the Appellant's right tibiotalar or right ankle joint. A little later,
while answering another un-related question, Dr Cooke volunteered that the headings on reports he wrote were
computer generated and that was why the same claim number appeared.
[40]
In another letter to WorkCover, dated 31 August 2009, Dr Cooke stated that the Appellant's fracture dislocation
of his right ankle in 1970 was treated conservatively "and he suffered no problems with his right ankle until the
injury of interest that occurred in the course of his employment on 11 July 2008 …". However, Dr Cooke agreed
that this information was provided to him by the Appellant. He also agreed the Appellant had never informed
him that his ankle had previously swelled at work at times and that he hadn't sought treatment for the swelling.
[41]
Dr Cooke accepted that he "may well have" phoned WorkCover on 28 August 2008 to establish why the
Appellant's Application for Workers' Compensation in relation to his ankle had been declined. He said "I
remember that WorkCover disagreed that Mr Grogan injured his ankle at work and I disagreed with them
strongly and I said so and I think I put it in writing once or twice.". (Transcript 2-48) He also agreed that at the
end of the conversation referred to he wasn't happy and wanted to know from WorkCover what he and the
worker could do about it. (Transcript 2-48)
Evidence on behalf of Q-COMP
[42]
Dr Terence Saxby, an Orthopaedic Surgeon, examined the Appellant on 19 August 2009 for the purposes of
preparing a report to WorkCover. In his report Dr Saxby opined:
"I believe that the diagnosis here is right ankle arthritis. I believe this is most likely related to a previous
ankle injury and most likely the injury in the 1970's has led to this ankle problem.
I therefore believe that this gentleman's ankle problem is pre-existing. He may have aggravated his ankle
arthritis with the injury of 11.7.08, but one would have thought that any aggravation by simply kicking his
ankle would be a temporary one.
Therefore, as I said, I believe that his present problem with his ankle relates to his pre-existing condition
rather than his work-related condition, and certainly surgery in terms of an ankle arthrodesis would be
treating his pre-existing condition and not his work-related injury.".
[43]
Dr Saxby was also referred to the results of the CT scan of the Appellant's ankle undertaken on 21 October 2008
and said the changes to the ankle described in that report were long-standing. "The fact that there's ossification
in that - inferior tibiofibular ligament or joint indicates that he's had a significant injury in the past and there's
arthritic change there so all that would indicate that's a - that - most of those - or those changes are indicated
from a long-standing problem not just a year or so … the CT scan confirms the plain X-ray findings.".
(Transcript 2-54)
[44]
Under cross-examination Dr Saxby did not rule out the possibility that the Appellant aggravated his pre-existing
degenerative change in the incident of 11 July 2008. He said, "I think he's … got an arthritic joint and it's had
an injury that would have aggravated the problem or brought his symptoms.". (Transcript 2-54)
[45]
In response to the general proposition that if the Appellant had pain after the incident on 11 July 2008 but not
before and whether that would demonstrate an aggravation of the Appellant's well-advanced degenerative
condition, Dr Saxby said "if he's had an injury to an arthritic joint … it can cause him symptoms but just because
you've got an arthritic joint, it doesn't mean you can't sprain that joint so if he's had an injury, most likely, it's a
soft tissue injury and he will have symptoms from that. You can't really tell the causation of that, whether it's the
underlying arthritis or he's had an injury to that joint anyway.". (Transcript 2-55)
[46]
Finally, in answer to the proposition then advanced "… and the issue then becomes at what stage after the
aggravation the incident ceases to be the cause of his pain and then it reverts back to some underlying
degeneration?" Dr Saxby responded "Yes, exactly.". (Transcript 2-55)
6
Findings
Did the Appellant's ankle injury arise in the course of his employment?
[47]
After reviewing the evidence and submissions I am not satisfied, on the balance of probabilities, that the
Appellant injured his ankle on 11 July 2008 in the manner he alleges, or at all.
[48]
The Appellant's oral evidence about the cause and nature of the alleged injury to his ankle on that date was
inconsistent, as well as being at complete odds with his written record of the incident, completed within a few
days of its occurrence.
[49]
The incident report (Exhibit 15) does not mention the involvement of a second worker, nor that this worker
allegedly lost his grip on the pigeon hole cabinet causing the Appellant to take its full weight. Further, there is
no mention of the Appellant hitting, knocking or kicking his ankle on a stair tread as he stepped backwards while
attempting to regain his balance. Importantly, given the Appellant's evidence about how the injury allegedly
occurred, the written incident report does not even record the name of a witness to the event.
[50]
As a WHSO, the Appellant must be assumed to have understood the importance of correctly reporting the nature
of any injury or incident as well as its cause. However, not only is the written description of how the Appellant
injured his shoulder completely different to the circumstances he now alleges occurred, the written record does
not suggest that he did anything which would have had the potential to cause an injury to his ankle or that he did,
in some way, injure his ankle.
[51]
Additionally, the written incident report only mentioned application of an ice pack to the Appellant's shoulder.
This is to be compared with his later evidence that he immediately applied an ice pack to his ankle as well as his
shoulder, including at home and whenever he could while he was at work. In my opinion, the omission is
significant.
[52]
Further, the Appellant now says that he couldn't bear weight on his ankle after the alleged incident and
confirmed that this is what he told Dr Saxby when he saw him in August 2009. However, the written incident
report (noticeably) does not make mention of any such situation.
[53]
Finally, the chronology of events at the end of the incident report is also at complete odds with the Appellant's
evidence in these proceedings.
[54]
The Appellant attempts to explain these omissions and inconsistencies by claiming that he thought the injury to
his ankle was just a sprain and that it would right itself. However, I simply do not accept this evidence. If the
incident had occurred as the Appellant now alleges, his training as a WHSO would, or should, have alerted him
to the need to write down a full description of the incident, including reference to the fact that he had slipped on
a stair tread and banged or knocked his ankle against that or another stair tread. His training to become a WHSO
and his position as a safety representative would, or should, have also alerted him to the seriousness of the
(alleged) event that had just occurred and that it was necessary for him to write up a full description of the whole
incident.
[55]
In my considered view, the more likely scenario is that which is recorded in the (full) written incident report.
The version of events the Appellant proffered to Dr Cooke in October 2008, which was repeated in the present
proceedings, is a total fabrication.
The medical evidence
[56]
Because of my finding that the Appellant did not injure his ankle in the course of his employment on 11 July
2008, it is not necessary to deal with the conflicting medical evidence about the nature of the Appellant's ankle
condition. Nonetheless, I believe it is necessary to say something about the evidence of Dr Cooke, as well as the
overall medical evidence.
[57]
Dr Cooke's role in the proceedings was more as an advocate for the Appellant rather than as an independent
medical specialist.
[58]
In his evidence-in-chief (see Transcript 2-40) Dr Cooke was prepared to attribute the fractures to the Appellant's
osteophytes to the alleged events on 11 July 2008. However, under cross-examination it became clear that the
Doctor was not in a position to give such an opinion. This is demonstrated in the following exchange between
he and Mr Sapsford (see Transcript 2-41 to 42):
"MR SAPSFORD: Which indicated to you, Doctor, that the fracture had happened recently? --That's right.
But you can't say, can you, how ---? ---I'm sorry?
7
You can't say, can you, how recently that was?--- No, I can't.
And you can't say whether that occurred prior to or on the occasion complained of? --- No.".
[59]
Dr Cooke's inability to be certain about the nature of the Appellant's ankle condition was confirmed in later
testimony, as follows (see Transcript 2-50):
"MR SAPSFORD: Now could the doctor please see Exhibit 7; you see, doctor, that that's the CT right ankle,
x-ray right ankle that was occasioned at your request ---? --- That's right.
--- it's been sent to you from Dr Michael Crouch and if I could take you please, to the end of the first major
paragraph under 'Findings'. What Dr Crouch was able to discern from his examinations and from his testing
was that the combined appearances are probably degenerative or possibly post-traumatic in nature. Would
you agree that its impossible to say which? --- That's absolutely correct.".
[60]
Unfortunately, Dr Cooke was not prepared to leave the matter there. Following the response "(t)hat's absolutely
correct" he then saw fit to volunteer an additional comment after Mr Sapsford informed the Commission he had
no further questions of the witness. This comment', "(p)articularly, yes, its traumatic as well as degenerative",
was contrary to the response he had just given in answer to Mr Sapsford's question and, in my view, clearly
demonstrated his impartiality.
[61]
However, in Dr Cooke's defence, he had no reason to doubt the Appellant's version of the alleged events of
11 July 2008. Further, the Appellant had not informed him that he had experienced swelling of his ankle on
prior occasions. Given this scenario Dr Cooke possibly read more into the X-ray and CT results than did Drs
Crouch and Saxby, respectively.
[62]
All things considered, the medical evidence would not have enabled me to have been satisfied that the
Appellant's ankle injury occurred during the course of the incident on 11 July 2008 if the events of that day had
actually unfolded in the manner now alleged by the Appellant. This is primarily because the medical evidence
was to the effect that it was not possible to state whether the Appellant's ankle condition was degenerative or
post-traumatic in nature.
[63]
I would also have preferred Dr Saxby's opinion about the Appellant's ankle condition, and what the X-rays and
CT scan revealed, ahead of Dr Cooke's opinion. This was not only because Dr Cooke had become an advocate
for the appellant, rather than an independent specialist, but also because of Dr Cooke's inconsistent evidence
about what the X-rays and CT scan showed. Importantly, Dr Saxby opined that if the Appellant had injured his
ankle by striking or knocking it on 11 July 2008 any injury or aggravation would have settled down well before
he saw him in August 2009. However, at that time the Appellant's ankle was still showing signs of swelling and
tenderness which Dr Saxby believed was evidence of arthritis. Dr Saxby also opined that surgery involving a
right ankle arthrodesis, which is what the workers' compensation claim related to, would have been for a preexisting injury rather than any work-related injury or aggravation.
Conclusion
[64]
The Appellant has failed to demonstrate, on the balance of probabilities, that he injured his right ankle during the
course of an incident which occurred on 11 July 2008. As such, given that it was not suggested that the injury
might have occurred on some other date or in some other way, the Appellant has failed to demonstrate that the
injury to his right ankle arose out of or in the course of his employment, let alone that the employment was a
significant contributing factor to the injury.
[65]
For the foregoing reasons I dismiss the Appeal. I uphold the decision of Q-COMP dated 5 November 2009 and
determine that the Appellant's claim to WorkCover is one for rejection.
[66]
I determine and order accordingly.
A.L. BLOOMFIELD, Deputy President.
Hearing Details:
2010 10 September
6 October (Respondent's written submissions)
21 October (Appellant's written submissions)
28 October (Respondent's written submissions in
reply)
Released: 7 December 2010
Appearances:
Mr M. Drysdale (Counsel), instructed by Mr J. Harvey
(Bennett and Philp Lawyers) for the Appellant.
Mr S. Sapsford (Counsel), directly instructed by the
Respondent.