Malcolm Tolhurst v Q-COMP

Date of decision: 31 July 2009, I.M. Magee

Mr Tolhurst was self-represented

Mr Scott McLeod of Counsel, directly instructed by Q-COMP

Key words – Handyman - 59 – Injury Type: Physical, left shoulder – Appeal Outcome: appeal dismissed - Significant sections considered: –

s32(1) an injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury

s32(3) an injury includes an aggravation

Head Note

This appeal was heard by way of re-hearing, following the decision of the Industrial Court of 28 August 2008.

Mr Tolhurst was employed as a Handyman. Mr Tolhurst alleged that he sustained a left shoulder injury on 12 October 2004 while trying to lift a heavy steel post off the rear of a vehicle.

Mr Tolhurst lodged an Application for Compensation with WorkCover Queensland in July 2005. WorkCover rejected Mr Tolhurst’s application for the left shoulder injury. Mr Tolhurst then lodged an Application for Review with Q-COMP. The Review Unit confirmed WorkCover’s decision on the basis of specialist opinion from Dr Peter Dodd, Orthopaedic Surgeon indicating that the left shoulder condition was degenerative in nature rather than a work-related injury or aggravation.

Evidence presented at the hearing by two orthopaedic specialists confirmed that if the appellant had suffered an injury to his left shoulder in the work incident of 12 October 2004, he would have noticed symptoms immediately. However the appellant did not mention any shoulder injury to a medical practitioner until January 2005.

The Industrial Magistrate found that the appellant did not suffer an injury pursuant to section 32 of the Act. The symptoms experienced by the appellant were due entirely to his pre-existing condition which became symptomatic after the date of the work related incident.