6th March 2025
Pidgeon IC, delivered 10 January 2025
Facts
The appellant was working as a chef on Fraser Island when he suffered a workplace injury to his left knee on 27 March 2021. It was reported to his employer and an application for workers’ compensation was accepted. The applicant was unable to weight bear on his left leg immediately after the workplace incident and was required to overcompensate with his right knee to mobilise.
By November 2021 the appellant reported to his treating providers that he was suffering from right knee pain, and he was diagnosed with a meniscal injury to his right knee. The appellant lodged an application for compensation for the right knee injury arising out of the incident that occurred on 27 March 2021. WorkCover rejected the application and the Workers’ Compensation Regulator upheld that decision – stating the injury wasn’t one for acceptance as it did not arise out of or in the course of the appellant’s employment.
The appellant appealed this decision.
Decision
1. The decision of the Respondent’s is set aside.
2. The Appellant’s injury is one for acceptance.
3. Failing agreement between the parties, a decision on costs will be subject of a further application to the Commission.
Ratio
The appellant submitted that the failure to report the right knee injury at the time of presenting at the hospital immediately after the incident on 27 March 2021, was because the left knee was causing him greater concern at the time. Using the principles in Ribeiro, the Commissioner was to find whether, in combination of expert medical evidence and using common sense, on the balance of probabilities, a causal connection can be found between the appellant’s employment and the injury.
In this case, the Commissioner found the appellant to be an open and honest witness and accepted his evidence. Further, the Commissioner found it entirely reasonable to suggest that the appellant’s focus was on his left knee injury at the time given it was more of an acute injury, and that it is probable the right knee injury occurred as a result of the incident on 27 March 2021.
Accordingly, the Commissioner was satisfied the right knee injury arose out of, or in the course of the appellant’s employment, and that the employment was a significant contributing factor to the right knee injury.
The ALA thanks Aiden Warneke for this contribution.
This is an edited version of an article first published by Travis Schultz & Partners
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