Dwyer v Workers’ Compensation Regulator [2025] QIRC 119
Dwyer v Workers’ Compensation Regulator concerned whether a workplace incident had caused or aggravated a worker’s pre-existing left knee condition, despite relatively mild symptoms immediately after the incident and more significant symptoms emerging months later.
The Queensland Industrial Relations Commission ultimately found that the worker had sustained an injury within the meaning of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) and set aside the Regulator’s decision rejecting his application for assessment of permanent impairment.
Background
Mr Paul Dwyer was employed by Mackay Sugar Limited as an Effet Operator at the Farleigh Sugar Cane Mill.
In about November 2018, while accessing a valve beneath a floc tank, Mr Dwyer stepped onto a metal grate covering a drainage gutter. The grate gave way and his left leg dropped approximately 20 centimetres into the gutter.
Mr Dwyer experienced pain in his left knee but was able to continue working. He said that he placed tape around the ill-fitting grate and verbally reported the incident to his shift supervisor. His symptoms remained relatively mild, and he continued working for the remainder of the crushing season.
During the off-season, Mr Dwyer performed lighter security duties and experienced no symptoms of significance. When he returned to heavier duties during the following crushing season, however, his knee symptoms increased.
Radiological investigations in 2019 demonstrated multiple underlying pathologies in his left knee. Mr Dwyer also had significant pre-existing degenerative changes.
The application and appeal
In August 2021, Mr Dwyer applied under s 132A of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) to have the alleged 2018 knee injury assessed for permanent impairment.
WorkCover rejected the application. The Workers’ Compensation Regulator subsequently confirmed that decision on review in October 2022.
Mr Dwyer appealed to the Queensland Industrial Relations Commission.
The central issues were whether:
- The November 2018 incident had actually occurred; and
- The incident caused, either directly or by aggravation, a personal injury to Mr Dwyer’s left knee within the meaning of s 32 of the Act.
Did the workplace incident occur?
There was no contemporaneous documentation establishing that Mr Dwyer had reported the incident. His former supervisor also had no recollection of receiving a report.
The Commission nevertheless accepted Mr Dwyer’s evidence.
Although there were inconsistencies in some of his later recollections, the Commission considered these unsurprising given the passage of time. Importantly, Mr Dwyer remained consistent about the essential features of the incident: the grate gave way beneath him, his left leg fell into the drain, he experienced knee pain, and he reported the incident to his supervisor.
The Commission also considered the understated nature of Mr Dwyer’s evidence significant. He did not attempt to exaggerate his symptoms immediately following the incident and described them as relatively minor.
The Commission ultimately found, on the balance of probabilities, that the incident occurred substantially as Mr Dwyer described it.
The medical evidence
The medical evidence became particularly important because Mr Dwyer already had several underlying conditions affecting his left knee.
Mr Dwyer relied on orthopaedic specialist Dr Allan Cook, while the Regulator relied on orthopaedic surgeon Dr Babatunde Salman.
There was disagreement about whether the November 2018 incident itself caused Mr Dwyer’s meniscal tear. Dr Salman considered that the tear probably pre-dated the incident.
However, that did not determine the appeal.
During his evidence, Dr Salman accepted that, if the November 2018 incident occurred, Mr Dwyer had most likely aggravated or exacerbated the chronic tear.
The Commission had already accepted that the incident occurred. It therefore accepted Dr Salman’s opinion as supporting a finding that Mr Dwyer suffered a personal injury by way of aggravation of his pre-existing condition. Importantly, the Commission observed that it was not necessary to determine a precise diagnosis where the evidence was sufficient to establish that a personal injury had occurred.
Employment as a significant contributing factor
Section 32 of the Act includes an aggravation of a pre-existing personal injury, disease, or medical condition where the statutory requirements are satisfied.
The Commission was satisfied that Mr Dwyer’s injury arose out of or in the course of his employment. It was also satisfied that his employment was a significant contributing factor to the aggravation.
The fact that Mr Dwyer experienced only limited symptoms or incapacity immediately following the incident did not prevent that conclusion. The Commission explained that the limited initial symptoms may be relevant to the duration of the aggravation, but did not determine whether employment significantly contributed to the injury itself.
The decision
The Commission allowed Mr Dwyer’s appeal.
The Regulator’s review decision was set aside and replaced with a decision that Mr Dwyer’s application under s 132A was one for acceptance.
The Regulator was also ordered to pay Mr Dwyer’s costs of the hearing.
Key points
- A pre-existing condition does not necessarily prevent a workplace injury from being established. An aggravation of a pre-existing injury, disease, or medical condition may itself constitute an injury under s 32 of the Act.
- The workplace incident does not necessarily need to cause the underlying pathology. In this case, the Commission was able to find an injury on the basis that the incident aggravated pre-existing degeneration.
- Mild initial symptoms are not necessarily inconsistent with a compensable aggravation. Mr Dwyer continued working after the incident and experienced more significant symptoms only after returning to heavier duties.
- The absence of contemporaneous documentation is not necessarily determinative. The Commission assessed the reliability of the evidence as a whole and accepted that the incident and verbal report occurred.
- A precise diagnosis may not always be necessary. The Commission considered it sufficient that the evidence established, on the balance of probabilities, that a personal injury had occurred.
- Expert evidence must be considered substantively, rather than simply by reference to which party obtained it. In this case, evidence from the Regulator’s own orthopaedic expert ultimately supported the finding that the workplace incident most likely aggravated Mr Dwyer’s chronic knee condition.
Why this decision matters
Dwyer provides a useful example of how Queensland workers’ compensation law approaches an injury occurring against a background of significant pre-existing degeneration.
The relevant question was not simply whether Mr Dwyer’s underlying knee pathology existed before the workplace incident. The Commission considered whether the incident aggravated that condition and whether employment was a significant contributing factor to that aggravation.
The decision also demonstrates the importance of considering the evidence as a whole where there is a delayed claim, limited contemporaneous documentation, pre-existing pathology, and disagreement between medical experts.
The information on this page is general in nature and does not constitute legal advice.