Arrold and Comcare (Compensation) - [2024] AATA 1589

Arrold and Comcare (Compensation) [2024] AATA 1589 (13 June 2024)
Division:GENERAL DIVISION
File Numbers:2022/5509
Re:Harvey Jay Arrold
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:13 June 2024
Place:Brisbane

The Tribunal affirms the decisions under review.
.................................[SGD]....................................
Member D Mitchell
Catchwords
COMPENSATION – claim for compensation – Applicant suffered from a shoulder condition – whether the Applicant’s ailment or aggravation of the ailment, was contributed to, to a significant degree, by his employment – where Respondent determined no liability for compensation pursuant to section 14 of the Safety, Rehabilitation and Compensation Act1988 (Cth) – decision under review affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Comcare v Reardon (2016) FCA 1116
Odgen Industries Pty Ltd v Lucas [1967] HCA 30; 116 CLR 537
REASONS FOR DECISION
Member D Mitchell
13 June 2024
INTRODUCTION

Mr Harvey Jay Arrold (the Applicant) is employed by the Department of Home Affairs.[1]
[1] Exhibit 1, T Document, T7, page 47, Workers’ Compensation Claim Form.
On 25 August 2020, the Applicant made a claim for compensation in relation to a left shoulder injury.[2]
[2] Exhibit 1, T Documents, T7. pages 42-49, Workers’ Compensation Claim Form.
On 4 November 2020, the Respondent determined that it was not liable to pay compensation to the Applicant under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act).[3]
[3] Exhibit 1, T Documents, T17, pages 258-262, Determination declining claim for labral injury (tear) – left shoulder.
The Applicant sought internal review of that decision. On 13 May 2022, the Respondent affirmed its determination made on 4 November 2020.[4]
[4] Exhibit 1, T Documents, T23, pages 295-300, Reviewable Decision.
BACKGROUND
The Applicant commenced employment with the Department of Home Affairs[5] (the Department) in 2006 and has worked predominantly in desk-based employment, in an office and at various detention centres and other locations whilst on deployment.[6]
[5] The Tribunal notes that during the Applicant’s employment the Department has had a number of different names as a result of machinery of government.
[6] Exhibit 1, T Documents, T9(a), pages 53-54, Statement of the Applicant and T10(a), pages 58-60, Response from Applicant’s manager.
On 28 January 2009, the Applicant reported to the Department that he had been experiencing discomfort/tension in his lower back and/or shoulders. It was suggested that the issue may have stemmed from an incorrectly configured workstation or lack of support from his current chair and a request was made for a workstation ergonomic assessment to be undertaken.[7]
[7] Exhibit 1, T Documents, T3, pages 22-25, Department of Immigration and Border Protection (DIBP) Incident Report.
In a statement dated 10 September 2020, the Applicant outlined that in the previous 10 years he had worked in various high profile, politically sensitive and often demanding operational roles, undertaking immigration enforcement duties. He stated that it was not uncommon, to have been regularly required to work more than a standard day. The Applicant said that he worked 10-12 hour days up to 6 days per week during periods of high and sustained operational tempo, such as in the peak of Irregular Maritime Arrivals which saw immigration detention centres being stood up in various remote locations across the country. The Applicant described having undertaken a number of deployments to remote area detention centres and that many of the work sites were “hodgepodge, demountable-type offices or dilapidated building with makeshift work stations and unsupportive office furniture.”[8]
[8] Exhibit 1, T Documents, T9(a), pages 53-54, Statement of the Applicant.
On 3 September 2014, the Applicant reported to the Department that he had been experiencing a niggling pain/injury in his left shoulder which was referring down his upper left arm. He advised that he believed the injury was a result of poor posture and/or incorrect workstation configuration. The Applicant reported that he had been referred for an x-ray, had had a workstation assessment completed on 1 September 2014 and was undertaking regular massage.[9]
[9] Exhibit 1, T Documents, T4, pages 26-29, DIBP Incident Report.
On 23 July 2015, the Applicant reported to the Department that he was experiencing shoulder pain/discomfort stemming from what he felt was an unsupportive or incorrectly configured workstation. He stated that the discomfort appeared to relate to an intermittent issue which was first identified in 2009.[10]
[10] Exhibit 1, T Documents, T6, pages 38-41, DIBP Incident Report.
On 25 August 2020, the Applicant submitted a workers compensation claim for a:[11]
Labral injury (tear) associated with repetitive use and documented during history of employment with Home Affairs over a number of years.
[11] Exhibit 1, T Documents, T7, page 43, Workers’ Compensation Claim Form.
The Applicant stated in his claim that he was undertaking administrative duties associated with his role when he was injured. He provided the following account of how he was injured:[12]
[P]resentation initially appeared (from my perspective) as a repetitive strain injury potentially attributed to poor ergonomic posture. Engagement of Occupational Therapists and modifications to my work station over the years has provided some benefit however condition has become increasing worse, exacerbated by high tempo (operational) work areas and sustained periods of long days 8+hrs continuous duty.
[12] Exhibit 1, T Documents, T7, page 43, Workers’ Compensation Claim Form.
On 22 September 2020, Dr Dale Rimmington the Applicant’s treating orthopaedic surgeon, provided a report to the Respondent. Dr Rimmington stated that:[13]
·The Applicant had first presented to him on 12 August 2019 with shoulder problems.
·The Applicant had reported that there was no specific injury or accident and that he had ongoing symptoms since 2009.
·The provisional diagnosis was tear of posterior labrum and bursitis.
·The cause of the Applicant’s labral tear was unknown but could be caused by a traumatic event or degenerative changes within the labrum.
[13] Exhibit 1, T Documents, T11, page 183, Report of Dr Rimmington.
On 22 October 2020, Dr Martin Di Nallo,[14] orthopaedic surgeon provided an independent medical examination report[15] and provided that he could not find any correlation between the posterior labral tear of the Applicant’s left shoulder and the duties that he had been performing. Dr Di Nallo stated that posterior labral tears are caused by trauma or lifting heavy objects in a supine position, such as a bench press.[16]
[14]
[15] Exhibit 1, T Documents, T14, pages 236-248, Report of Dr Di Nallo.
[16] Exhibit 1, T Documents, T14, page 241, Report of Dr Di Nallo.
On 4 November 2020, the Respondent declined liability for the Applicant’s claimed shoulder condition on the basis it was not satisfied that his shoulder condition had been contributed to, to a significant degree, by his employment with the Department.[17]
[17] Exhibit 1, T Documents, T17, pages 258-261, Determination declining claim for labral injury (tear) – left shoulder.
On 23 November 2021, the Applicant requested a reconsideration of that determination.[18] On 24 February 2022[19] and 8 April 2022,[20] the Applicant provided the Respondent with further material and submissions in support of his reconsideration request.
[18]    Exhibit 1, T Documents, T19-T19E, pages 264-274, Request for reconsideration and attachments.
[19]    Exhibit 1, T Documents, T20-T20D, pages 275-286, Email from the Applicant to the Respondent regarding reconsideration request attaching further information.
[20]    Exhibit 1, T Documents, T21-T21B, pages 287-292, Email from the Applicant to the Respondent regarding reconsideration request attaching a letter of support from Dr McLean and a statement.
In a letter dated 6 April 2022, Dr Matthew McLean, the Applicant’s treating general practitioner, provided the following history:[21]
I read from notes and history that [the Applicant] first established his comcare claim in 2009, before we met. He was seen by my ex-colleagues Dr. Keith Larsen and

Dr. Philip Nyst at the East Brisbane Medical centre. Initially the cause was thought to be from ergonomics and repetitive injury from desk and then field work related to his employment. Xrays and USS from the time in 2009 were rightly ordered but they did not detect a labral or tendinopathy. He proceeded with conservative treatment, therefore Xrays and USS were again ordered in 2014, with the clinical note “pain and restriction of movements” – again the xray was normal but the first signs of supraspinatus tendinopathy were noted with bursitis. Given this, it was correct to try for relief with periods of rest, ergonomic changes and physiotherapy.
He continued to complain of pain on and off, relating to physical activity during periods of active duty. It is my recollection that I would tend to see [the Applicant] when he would come home from active assignment, wanting treatment for his shoulder. He would have pain relief and physiotherapy. I can confirm that at no time my notes indicated a separate trauma to his left shoulder. I can confirm he was solely a patient of the east Brisbane medical centre from the period of 2005 to 2022.
I ordered imaging and injections in 2018 and 2019. Again they showed no bony lesion by tendinopathy.
Given that the complaints of pain became frequent, I ordered an MRI in 2019. It is my belief that over this time, [the Applicant’s] long term diagnosis was the labral tear. I can’t say when it happened. It would not have ever been detectable on the xrays or USS during that time. It was only after consistent complaints of pain that I was prompted to perform this scan. …… Given labral repairs are usually treated with surgery, I referred him at the tine t the orthopaedic specialist Dr. Dale Rimmington.
[21] Exhibit 2, Hearing Book, R11, page 168, Report of Dr McLean.
Dr McLean reported his view of the opinions provided by Dr Di Nallo. While Dr McLean disagreed with Dr Di Nallo’s diagnosis of the cause of the Applicant’s pain he agreed, if most of the Applicant’s work was desk work (90%) the likelihood that the Applicant’s injury was work related was reduced. Dr McLean agreed with Dr Di Nallo’s opinion in relation to how a posterior labral tear is usually caused however he opined it was not the only possibility.[22]
[22] Exhibit 2, Hearing Book, R11, page 169, Report of Dr McLean.
On 13 May 2022, the Respondent affirmed the Determination to deny liability in relation to the Applicant’s claimed shoulder condition.[23]
[23] Exhibit 1, T Documents, T23, pages 295-300, Reviewable Decision.
During the Tribunal process the Applicant underwent two independent medical examinations which resulted in reports being provided by Dr Sumant Kevat,[24] consultant rheumatologist and Dr Anthony O’Neill,[25] consultant orthopaedic surgeon. Both Dr Kevat and Dr O’Neill gave evidence at the Hearing, their reports and evidence are summarised below.
[24] Exhibit 2, Hearing Book, R6, pages 114-123, Report of Dr Kevat.
[25] Exhibit 2, Hearing Book, R9, pages 145-153, Report of Dr O’Neill and R7, pages 125-127, Supplementary Report of Dr O’Neill.
A Hearing was held on 15 and 16 May 2024. The Applicant, appeared by MS Teams, was self-represented and gave evidence under affirmation. The Respondent was represented by Ms Josie Dempster of Counsel who was instructed by Mr Nathan O’Reilly of MinterEllison.
THE LAW
Section 14 of the SRC Act relevantly provides that the Respondent is liable to pay compensation in accordance with the Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
An ‘injury’ is defined in section 5A of the SRC Act as:
5A Definition of injury
(1)       In this Act:
injury means:
(a)       a disease suffered by an employee; or
(b)       an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)       an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
………
A ‘disease’ is defined in section 5B of the SRC Act as:
5B Definition of disease
(1)       In this Act:
disease means:
(a)       an ailment suffered by an employee; or
(b)       an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2)       In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)       the duration of the employment;
(b)       the nature of, and particular tasks involved in, the employment;
(c)       any predisposition of the employee to the ailment or aggravation;
(d)       any activities of the employee not related to the employment;
(e)       any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3)       In this Act:
significant degree means a degree that is substantially more than material.
An ‘ailment’ is defined in section 4 of the SRC Act to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).”
ISSUES
The primary issue before the Tribunal is whether the Applicant is entitled to compensation under section 14 of the SRC Act in respect of the claimed shoulder condition.
In considering this issue, the Tribunal must consider:
1. What is the condition for which the Applicant seeks compensation under section 14 of the SRC Act?
2.   Is that condition:
(i)   a disease,[26] being an ailment, or an aggravation of an ailment and if so, was it significantly contributed to by the Applicant’s employment[27]; or
(ii) an injury (other than a disease) and if so, did it arise out of or in the course of the Applicant’s employment?[28]
[26]    Section 5A(1)(a) of the SRC Act.
[27]    Section 5B of the SRC Act.
[28]    Section 5A(1)(b) of the SRC Act.
It is clear from the evidence before the Tribunal and the submissions of the parties at the Hearing that the parties agree that: [29]
(a)the appropriate diagnosis of the Applicant’s condition is a left shoulder posterior/posteroinferior labral tear (shoulder condition); and
(b)the Applicant’s shoulder condition did not result from any specific injury or incident involving his left shoulder; and
(c)as a result the Applicant’s shoulder condition is a disease, being an ailment or aggravation of an ailment for the purposes of section 5B of the SRC Act.
[29] Exhibit 1, T Documents, T9(a), pages 53-54, Statement of Applicant, Exhibit 2, Hearing Book, R10, pages 157- 158, Respondent’s Statement of Facts, Issues and Contentions, paragraphs 4.1-4.10; and Transcript, page 13.
Based on the evidence before it, the Tribunal agrees with the parties’ views in relation to the diagnosis of the Applicant’s shoulder condition. The Tribunal finds that the Applicant’s shoulder condition is a disease, being an ailment or aggravation of an ailment for the purposes of sections 5A(1)(a) and 5B of the SRC Act.
As such the remaining issue for the Tribunal to determine is whether the Applicant’s shoulder condition or an aggravation of that condition was significantly contributed to by his employment. This issue in effect is a technical medical question which will be determined based on the available medical evidence.
APPLICANT’S EVIDENCE
Throughout the documents before the Tribunal the Applicant provided a number of statements all of which were consistent with his evidence at the Hearing.
At the Hearing the Applicant made it clear that he was not a medical practitioner and was looking to the Tribunal to review all the material and make an independent decision.
The Applicant told the Tribunal that:[30]
[30] Transcript, pages 8-35 and 68-69.
·He agrees with the diagnosis of his shoulder condition being a labral tear.
·He suggests that his shoulder condition is a repetitive strain injury that has gotten worse over the years and then eventuated into a labral tear.
·He maintained that the nexus with significant contribution exists.
·There was no significant trauma to his left shoulder but rather his shoulder condition had occurred as “a very slow burn” which was well documented with his employer over a period of years.
·It took a long time to diagnose his shoulder condition and he understands that one of the doctors in their report provided that the research is not strong in relation to repetitive strain injuries giving rise to injuries of this kind.
·It is his personal opinion the repetitive strain, exceptional work hours and exceptional work environments that he was employed under between 2009 up to 2014 (being the irregular maritime arrival peak) and beyond that led to his shoulder condition.
·During that period the government was under severe pressure to stand up immigration detention centres all around the country and he was deployed to those detention centres. The working environments at the detention centres were rudimental and were hastily put together.
·The nature of his shoulder condition is permanent, ongoing and episodical.
·There is a clear synergy to periods of sustained administrative work where he would get a flare-up.
·His condition will get worse as he ages particularly without surgery.
·He wants the link between his work and his shoulder condition looked at from both a cause and aggravation point.
·He worked 10 or 12 hour days for long periods of time in a high operational tempo with poor ergonomics.
·It is difficult to remember back to 2009 however that is when he thinks signs of his shoulder condition began. He had started his employment with the Department in 2006.
·His shoulder condition symptoms have never resolved they have improved at times. He did what he had to do to get the work done and pushed through any physical pain he was experiencing. Being deployed to remote areas made getting treatment difficult.
·In 2014 after many years of deployment he returned home and went back to an office environment. Once he had decompressed and the adrenaline of the work had subsided, he was able to stop and breathe and think about what he needed to do to look after himself.
·His shoulder condition is episodical so some periods it is better than others.
·From 2015 he would get irritated or sick of living with the condition, or the pain or discomfort and he would engage in remedial massage, dry needling and get some relief. His shoulder condition would improve then he would cruise along until another flare up and it got to the point where physiotherapy, dry needling, massage and Cortisone assisted to lesser extents.
·He does not know at what point of time in his life that the labral tear occurred and that is why he maintains that it was a slow build-up, a slow burn, a repetitive strain, very poor ergonomic environments and very high tempo work for sustained periods of time that contributed to it, it is not a traumatic event that occurred at a point in time.
·It was fair to say that since 2006 most of his employment roles with the Department have been desk-based or administrative in nature.
·He agreed that in terms of his work being administrate work, most of the work he was doing was sitting down or standing up.
·He agreed that he did not have to do any heavy lifting in the course of his employment.
EXPERT EVIDENCE
Dr Sumant Kevat

In considering the Applicant’s claim for workers’ compensation, the Respondent sought that he attend an independent medical examination with Dr Sumant Kevat, consultant rheumatologist.[31] Dr Kevat assessed the Applicant on 6 June 2023, subsequently providing a report dated 21 June 2023.[32]
[31] Exhibit 2, Hearing Book, R5, pages 110-112, Letter of Instruction to Dr Kevat.
[32] Exhibit 2, Hearing Book, R6, pages 114-123, Report of Dr Kevat.
Dr Kevat reported that the Applicant told him that he had:[33]
·Had increasing left shoulder symptoms since he was deployed in immigration detention centres in rural locations with poor ergonomic facilities.
·Been employed exclusively performing administrative/clerical duties, however the hours were long and the facilities were rudimentary, with poor ergonomics.
[33] Exhibit 2, Hearing Book, R6, pages 120-121, Report of Dr Kevat.
Dr Kevat provided the following responses to questions put to him:[34]
[34]    Exhibit 2, Hearing Book, R6, pages 121-122, Report of Dr Kevat.
(c)Your diagnosis concerning the subject condition. If you believe the condition represents multiple different diagnoses, please specify that fact;
[The Applicant] has a full thickness posterior/posteroinferior labral tear in his left shoulder. There is associated mild supraspinatus and subscapularis tendinopathy with no tendon tear, and mild subacromial bursitis.
(d)Whether the condition diagnosed by you at (c) is an aggravation, acceleration or recurrence of a pre-existing or underlying condition? If so, was the nature of the aggravation:
The condition is not an aggravation, acceleration or recurrence of a pre-existing or underlying condition.
(i)        A worsening of a pre-existing pathology?
The condition is not a worsening of a pre-existing pathology.
(ii)       A worsening of diagnostic indicators?
The condition is not a worsening of diagnostic indicators.
(iii)A worsening of the applicant's experience of the symptoms?
The condition is not a worsening of the applicant's experience of the symptoms.
(iv)A continued experience of symptoms which would have been present in any event?
The condition is a continued experience of symptoms which would have been present in any event.
(e)Please state the factor(s) that, in your opinion, have caused and/or contributed to the condition;
This type of condition can occur with recurrent overhead motion of the upper limb, or a fall on the outstretched hand.
(f)For each condition diagnosed by you at (c) above, whether the condition (or its aggravation) was contributed to, to a significant degree, by the applicant's employment with the Commonwealth, including by taking the following factors into account:
(i)That a 'significant degree' means 'a degree that is substantially more than material';
The condition was not due to, or an aggravation of, a condition significantly contributed to by the applicant’s employment with the Commonwealth.
(ii)       Any predisposition of the applicant to the ailment;
No specific predisposition was identified.
(iii)Any activities of the applicant not related to the employment; and
The condition is likely to have occurred by activities of the applicant not related to the employment.
(iv)      Any other matters affecting the applicant's health.
No other matters affecting the applicant’s health were identified.
Dr Kevat stated that:[35]
The labral tear would have required a physically traumatic injury: it is unlikely to have occurred as an overuse phenomenon.
[35] Exhibit 2, Hearing Book, R6, page 120, Report of Dr Kevat.
At the Hearing Dr Kevat gave evidence by MS Teams under affirmation.[36] Dr Kevat confirmed his name and qualifications and that he prepared a report in relation to the Applicant dated 21 June 2023. Dr Kevat confirmed that the information contained in his report was true and correct to the best of his knowledge and belief and that the opinions he had expressed in the report are his truly held opinions.[37]
[36] Transcript, pages 36-50.
[37] Transcript, pages 36-37.
Dr Kevat explained that tears the type of which the Applicant has typically come to occur or to be present by:[38]
So the location of the tear is posterior, meaning at the back. There’s a socket – the shoulder socket has a ring around, and we’re now looking at the back of the shoulder and – posteroinferior means back and a little bit lower. So to induce a force onto that location you’d have to have – in a person who is sitting up – the arm slightly raised in front of the person, and pushed backwards towards that part of the rim of the shoulder joint. And that would use that particular – the labrum or the lip of the shoulder to be injured.
[38] Transcript, page 37.
When asked what sort of activities would typically bring that on, in terms of mechanics,

Dr Kevat said:[39]
So anything that pushes the arm backward from the front with the arm, sort of, extended will do that. So things like a bench press or doing a, kind of, chip up or having some sort of sporting activities, just say bowling at cricket would induce that kind of force.
[39] Transcript, page 37.
Dr Kevat explained that some sort of forceful event of the type he had described, where the arm is pushed backwards by a force, or the person has exuded a force and they are putting pressure on that part of the shoulder. He said that relied on the assumption that the rim was reasonably intact. Dr Kevat told the Tribunal that it is possible that the whole rim had degenerated over time from various activities and that might just weaken the whole rim and in that event that part of the anatomy could be vulnerable.[40]
[40] Transcript pages 37-38.
Dr Kevat explained, where a joint was somewhat degenerated the amount of force needed for the kind of event to cause a tear might not have to be so great, however in his opinion it is the type of and direction of force that impacts on the cause. Dr Kevat told the Tribunal that in his opinion he finds it difficult to imagine any situation where a person is working on computers or writing things down, even if the ergonomic set up is not sufficient that they would have to raise their arm up and have a force exerted backwards on it. Dr Kevat doubts the overwork and the ergonomic environment the Applicant was in would cause the tear.[41]
[41] Transcript, page 40.
Dr Kevat said that based on the imaging and material available it is not possible to say when the Applicant’s labral tear occurred. Dr Kevat told the Tribunal the usual types of overuse problems people frequently have from typing and writing in an administrative setting relate to the hand and the wrist rather than the shoulder. He said people usually complain about tendon issues around the wrist and forearm and sometimes the head, there are rarely any issues happening to the shoulder from administrative type work.[42]
Dr Anthony O’Neill
[42] Transcript, pages 41-42.
In considering the Applicant’s claim for workers’ compensation, the Respondent sought that he attend an independent medical examination with Dr Anthony O’Neill, consultant orthopaedic surgeon.[43] Dr O’Neill assessed the Applicant on 12 June 2023, subsequently providing a report dated 26 June 2023.[44]
[43] Exhibit 2, Hearing Book, R4, pages 107-109, Letter of Instructions to Dr O’Neill.
[44] Exhibit 2, Hearing Book, R7, pages 145-153, Report of Dr O’Neill.
Dr O’Neill reported that:[45]
There is contention around the causality of his labral tear. It does appear to be degenerative in nature and there is an absence of a specific inciting traumatic event to cause it.
[The Applicant] is of the opinion that his shoulder condition is the consequence of repetitive strain and overuse in the workplace. In particular, he attributes the period of time where he was travelling and working in makeshift offices as the cause of the difficulty given the poor ergonomics of that workplace environment. This may have been a contributing factor.
It is more probable that there is a degenerative aetiology to his labral tear aggravated by the workplace activity. I do not think the workplace is the sole cause of his condition. It is likely this condition would be present in the absence of his working activity.
[45] Exhibit 2, Hearing Book, R7, pages 150-151, Report of Dr O’Neill.
Dr O’Neill provided the following responses to questions put to him:[46]
[46]    Exhibit 2, Hearing Book, R7, pages 151-152, Report of Dr O’Neill.
(c)your diagnosis concerning the subject condition. If you believe the condition represents multiple different diagnoses, please specify that fact;
My diagnosis is detailed above. [The Applicant] has a posteroinferior labral tear likely of a degenerate nature with subacromial bursitis and impingement affecting his left shoulder.
(d)whether the condition diagnosed by you at (c) is an aggravation, acceleration or recurrence of a pre-existing or underlying condition? If so, was the nature of the aggravation:
I consider there is likely an underlying condition here in the form of a degenerative tear of the posterior labrum as well as an anatomic predisposition to develop subacromial bursitis and impingement. This has been aggravated by his workplace activities.
(i)        a worsening of a pre-existing pathology?
Yes, worsening of a pre-existing pathology.
(ii)       a worsening of diagnostic indicators?
Yes, worsening of diagnostic indicators.
(iii)      a worsening of the applicant's experience of the symptoms?
Yes, worsening of [the Applicant’s] experience of the symptoms.
(iv)a continued experience of symptoms which would have been present in any event?
No, I do not think it is a continuance of experience of symptoms that would have been present in any event. Not at this age in any event.
(e)please state the factor(s) that, in your opinion, have caused and/or contributed to the condition;
The subacromial bursitis and impingement has developed as a consequence of [the Applicant’s] anatomy and predisposition to develop this problem combined with his day-to-day life and activity including his workplace activity. His posteroinferior labral tear is also likely degenerative in nature and the response to repetitive microtrauma. This is caused by the activities of his daily living in life combined with his workplace activity.
(f)for each condition diagnosed by you at (c) above, whether the condition (or its aggravation) was contributed to, to a significant degree, by the applicant's employment with the Commonwealth, including by taking the following factors into account:
(i)that a 'significant degree' means 'a degree that is substantially more than material;
I do not consider that either of his conditions have been caused to a significant degree by his employment with the Commonwealth.
(ii)       any predisposition of the applicant to the ailment;
There is likely an underlying predisposition to develop these conditions.
(iii)any activities of the applicant not related to the employment; and
I specifically asked him about hobbies. He used to enjoy some running but not anymore. He has never played any contact sport. He does not go to the gym and lift weight.
(iv)      any other matters affecting the applicant's health.
Not applicable.
(g)if you consider any of the conditions or aggravations have been significantly contributed to by employment, please explain how you consider employment significantly contributed to that condition/aggravation, including with reference to literature (if possible)?
I do not consider that the condition has been significantly contributed to by the employment. It is possible that a period of particular stress, various processing many immigrants caused a temporary exacerbation of a problem but I do not see how it could be said to be causal in the absence of a specific trauma.
On 13 December 2023, the Respondent provided Dr Kevat’s report to Dr O’Neill and sought further information in relation to some points of his report dated 26 June 2023.[47]
[47] Exhibit 2, Hearing Book, R8, pages 128-129, Supplementary Letter of Instruction to Dr O’Neill.
On 30 January 2024, Dr O’Neill provided a Supplementary Report.[48] In having regard to his opinions provided to questions 4.1(d) and 4.1(f) (as outlined above), Dr O’Neill provided the following responses to the questions put to him:[49]
[48] Exhibit 2, Hearing Book, R9, pages 125-127, Supplementary Report of Dr O’Neill.
[49] Exhibit 2, Hearing Book, R9. pages 126-127, Supplementary Report of Dr O’Neill.
(a)Did the applicant’s desk based work duties contribute in a significant degree to the progression of the degenerative condition in his left shoulder, taking into account that ‘significant degree’ means ‘a degree that is substantially more than material’
I do not think [the Applicant’s] desk-based duties contributed to a significant degree to the progression of his shoulder condition.
(b)Has any aggravation of the left shoulder condition caused by workplace duties ceased? If so, when did this likely occur?
Yes, the aggravation of the left shoulder condition caused by workplace duties has ceased. I would expect this would be after a three-to-four-month period from the time the aggravation was recognised.
(c)You say under the heading Summary and Assessment “I do not think the workplace is the sole cause of his condition. It is likely this condition would be present in the absence of his working activity.” By this, do you mean that non-employment factors have “overtaken” any aggravation caused by workplace duties, such that the workplace duties are no longer a significant contributor to left shoulder symptoms?
I do not think that the workplace duties are the cause of his current shoulder problem. I think these conditions would develop in the absence of the workplace injury.
Yes, it is reasonable to say non-employment factors are overtaken the aggravation caused by workplace duties.
(i) If so, at what point do you consider that non-employment related conditions would have “overtaken” any aggravation caused by workplace duties?
I think that the non-employment related conditions became the cause of his shoulder problem when the aggravation ceased. I think a reasonable timeframe would be three to four months post injury.
I expect the non-employment related conditions could be said to have overtaken the aggravation in three months after it developed.
(d)Is the applicant likely to experience pain symptoms due to the use of his left shoulder when performing activities of daily living? (eg. non-work activities). Yes.
(e)Is the applicant's left shoulder condition such that general use of his left arm (both during and outside of work) is likely to produce symptoms?
Yes.
(f)Do any symptoms experienced at work merely represent an expression of an underlying degenerative condition?
Yes.
At the Hearing Dr O’Neill gave evidence by MS Teams under affirmation.[50] Dr O’Neill confirmed his name and qualifications and he prepared two reports about the Applicant dated 26 June 2023 and 30 January 2024. Dr O’Neill confirmed that the information contained in his report was true and correct to the best of his knowledge and belief and the opinions he had expressed in the report are his truly held opinions.[51]
[50] Transcript, pages 55-64.
[51] Transcript, pages 55-56.
When asked to explain what he meant about microtrauma being sufficient to cause a progression of the Applicant’s labral tear pathology, Dr O’Neill explained it is difficult to separate sedentary occupation duties in an office-based scenario from activities of daily living.[52] Dr O’Neill explained that microtrauma’s are activities of daily living and the use of a person’s shoulder, being everything that is done with their shoulder. He told the Tribunal that:[53]
It’s applicable to knees as well, I guess. Like, a lot of pathology developed as a consequence of just a movement and activity of your day. And that puts sort of stress and repetitive stress through, you know, the static restraints of your joints, which are, in this case, the labrum. In the knee, it’s your meniscus. And over time, over years, the structures unfortunately start to degenerate and start to fail in fairly predictable ways, and this can be one of the things that I see in a shoulder as a consequence of that, to mechanism of injury.
[52] Transcript, page 56.
[53] Transcript, page 60.
Dr O’Neill said that microinjuries occur because of the presence of degeneration so the labrum is weaker and effectively just putting on your clothes, hanging clothes on the line, lifting things and doing different things throughout your general day, be that at work or home. Dr O’Neill told the Tribunal that as a result almost every movement and everything that is done that impacts on your shoulder contributes to the microtraumas.[54]
[54] Transcript, page 61.
Dr O’Neill told the Tribunal that it was not possible to accurately say when the Applicant’s labral tear occurred in the absence of earlier imaging, examination and an injury event. He said that the MRI allows him to say that the tear did not happen yesterday but that is the extent of what he can be sure of regarding timing of the tear.[55]
[55] Transcript, pages 56-64.
Dr O’Neill opined that by his references to “aggravated by the workplace” he meant an exacerbation of the symptomology that the Applicant was experiencing rather than an actual progression of the pathology of the labral tear from the workplace.[56]
[56] Transcript, page 56.
Dr O’Neill said it is fair to say that in light of his opinion taken as a whole his use of the word ‘aggravation’ does not mean that the Applicant’s workplace duties contributed to a worsening of the pathology, but rather the workplace was the environment in which symptoms were at times noticeable. He said that he could not honestly say that the Applicant’s workplace duties had caused a structural change in the pathology that is being discussed because that is not what he would usually see.[57]
[57] Transcript, page 57.
Dr O’Neill explained he formed his opinion that the Applicant’s shoulder condition was degenerative in reliance on the MRI scan that indicated that because of the way the Applicant’s shoulder had formed he was more likely to have a degenerative tear occur.[58]
[58] Transcript, page 61.
Dr O’Neill said in his view the Applicant’s workplace activities may have aggravated his pain symptoms rather than aggravated the condition in the circumstances where it would have made a structural change.[59]
[59] Transcript, page 63.
Dr O’Neill said that long hours, repetitive strain, non-ergonomic equipment and rudimental working conditions amongst a stressful situation could contribute as micro traumas however it is hard to separate them from the activities of daily living.[60]
[60] Transcript, page 64.
Dr O’Neill confirmed that his evidence was that it is very difficult to separate the activities of daily living from the Applicant’s workplace activities, especially along the course of his symptomology without having regular MRIs, especially in the absence of any specific injury.
RESPONDENT’S CONTENTIONS
The Respondent outlined its contentions in relation to whether the Applicant’s employment contributed to a significant degree to his condition or an aggravation of the condition as follows:[61]
[61] Exhibit 2, Hearing Book, R10, pages 158-159, Respondent’s Statement of Facts, Issues and Contentions, paragraphs 4.14-4.22.
4.14 If the Tribunal is satisfied that the applicant’s Condition is a ‘disease’ for the purpose of the SRC Act, Comcare contends there is no evidence to support a finding that the applicant's employment with DoHA contributed, to a significant degree, to the Condition.
4.15 In support of this contention, Comcare relies primarily on the expert opinions of Dr Kevat and Dr O’Neill, whose reports have been filed and served in the proceedings.
4.16 Dr Kevat considered the applicant’s labral tear would have required a physically traumatic injury or recurrent overhead motion of his left arm (neither of which Comcare considers are made out on the evidence). In the absence of any evidence to suggest the applicant had injured his arm at work or been required to perform repetitive overhead movement in the course of his usual employment duties, Dr Kevat formed the opinion that the applicant’s condition was not related to his employment.
4.17 In Dr O’Neill’s first report dated 26 June 2023, Dr O’Neill summarised his opinion on causation as follows:
‘…I do not consider that the [left shoulder] condition has been significantly contributed to by the employment. It is possible that a period of particular stress, various processing many immigrants caused a temporary exacerbation of a problem but I do not see how it could be said to be causal in the absence of a specific trauma.’
4.18 The applicant’s argument appears to be that, because he noticed his left shoulder symptoms whilst he was performing his employment duties, his employment is the cause of his Condition. However, the question for the Tribunal to answer is not the ‘but for’ test but, rather, whether the applicant’s employment contributed, to a significant degree, to the onset or aggravation of his claimed left shoulder Condition. Comcare contends that this is a much higher threshold to meet.
4.19 In Comcare v Power [2015] FCA 1502 at [93] – [94], the Court concluded that an evaluative exercise was to be undertaken in deciding whether a contribution by employment was substantially more than trivial. In the present matter, there is simply no evidence capable of sustaining a finding that the applicant’s employment contributed to the labral tear, or an aggravation of it, to the requisite degree.
4.20 Further, to the extent that the applicant claims to have suffered an aggravation to his left shoulder labral tear, Comcare contends this is simply not made out on the evidence. For the applicant to have suffered an ‘aggravation’ of his underlying degenerative condition, that condition must have been ‘made worse’ by his employment, and not just ‘become worse’ over time (Ogden Industries Pty Ltd v Lucas [1967] HCA 30; Comcare v Reardon (2015) FCA 1116 at [35]).
4.21 In line with the authorities referred to above, Comcare contends that because the most appropriate characterisation of the applicant’s left shoulder labral tear is an underlying disease that is simply running its course, the applicant’s Condition cannot be found to be an ‘aggravation’ within the meaning of the SRC Act.
4.22 It follows that Comcare is not liable to pay compensation to the applicant under s 14 of the SRC Act.

At the Hearing the Respondent further contended that there is insufficient evidence to enable the Tribunal to find that the labral tear existed even five years before the MRI scan on 3 July 2019, or in 2009 when the Applicant’s shoulder symptoms were first identified. The Respondent submitted that it relied on the evidence provided by Dr Kevat and Dr O’Neill in that regard.[62]
[62] Transcript, page 66.
The Respondent contended that in terms of causation the evidence overwhelmingly supports a finding that the tear was not contributed to, to a significant degree by the Applicant’s employment, particularly in circumstances where Dr Kevat and Dr O’Neill rejected the notion that sedentary activities would have been likely to have caused the labral tear itself to occur.
The Respondent drew the Tribunal’s attention to a report of Dr McLean, the Applicant’s treating general practitioner dated 6 April 2022. Dr McLean stated if it was the case that the Applicant’s employment was 90 percent desk based, it far reduced the likelihood that his injury was work related.[63]
[63] Transcript, page 66.
The Respondent further submitted that Dr McLean’s opinion about the nature of activities that are likely to bring on or contribute to a labral tear of this nature were consistent with the evidence given by Dr Kevat and Dr O’Neill.[64] Dr McLean stated:[65]
The posterior tear is usually caused by a fall onto the arm, a hard yank to the arm or repetitive traumas, e.g. overhead lifting. Doing bench-press is also a common mechanism for injury, as it places the arm in the correct position to have a posterior labral tear (i.e. in a flexed internally rotated and abducted position) or a sport which involves repetitive throwing overhead, e.g. throwing cricket balls.
[64] Transcript, page 66.
[65] Exhibit 2, Hearing Book, HB11, page 169, Report of Dr McLean.
The Respondent contended that the evidence from the treatment providers and the medicolegal experts is such that the Tribunal cannot find sedentary activities would have been sufficient to cause the labral tear to develop or a deterioration of it, to a significant degree.[66]
[66] Transcript, page 66.
The Respondent referred to the definition of aggravation in section 4 of the SRC Act which refers to including an acceleration of recurrence. In referring to the decision in Odgen Industries Pty Ltd v Lucas [1967] HCA 30; 116 CLR 537 (and referred to in Comcare v Reardon (2016) FCA 1116) the Respondent submitted that:[67]
The court found that to have suffered an aggravation, a person’s condition must have been made worse by their employment, and not merely become worse over time. And so this is relevant to this matter because the evidence of Dr O’Neill is that the workplace was merely one setting in which the applicant experienced shoulder symptoms. Dr O'Neill ultimately got to the point of saying that he did not think the workplace duties had caused any structural change to the applicant’s shoulder. Which is to say there has been no progression of the labral tear, or no deterioration of that tear, as a result of his performance of his workplace duties in his workplace environment.
Dr O’Neill also talked about the fact that other activities are more likely to cause a deterioration of an existing tear. And those are activities of daily living, the things we do with our shoulder without noticing, every day. The respondent’s submission is it is more likely that the applicant’s activities outside of work would have contributed to the deterioration of his labral tear than the stationary position of his shoulder at work. Dr Kevat similarly formed the view that, in terms of an aggravation, although it takes less for a compromised joint to deteriorate than a structurally sound joint, there still needed to be force applied, not just overuse.
Dr Kevat also compared the frequency of overuse injuries occurring to wrists and hands in an administrative environment, and said you rarely see issues like overuse happening to a shoulder in an administrative work setting. Dr Kevat also gave evidence similar to Dr O’Neill that the applicant could have experienced his shoulder symptoms at work, irrespective of work being the cause. And that is to say the workplace is an environment in which the settings are experienced, but not a factor contributing to the progression of the condition.
[67] Transcript, page 67.
The Respondent contended that overall the medical evidence does not leave open any room for a finding of a significant contribution by the Applicant’s employment to the cause or contribution to an aggravation.[68]
[68] Transcript, page 68.
CONSIDERATION
Firstly, the Tribunal notes that the Applicant expressed dissatisfaction in relation to the record keeping of the Department and other procedural matters. The Tribunal in no ways trivialises those concerns, however it has no jurisdiction to deal with them.
The Tribunal notes it found the Applicant to be creditable witness. The Applicant’s position in relation to his shoulder condition is not a position without logic, he has experienced shoulder pain throughout his employment. At various times between 2009 and the date of his claim, the Applicant reported his pain to his employer and sought assistance with his workstation ergonomics, he worked long hours in challenging environments and he sought treatment when he was able. The Applicant reports his shoulder pain fluctuating and being episodical.
The Applicant contended that his employment contributed to a significant degree to his shoulder injury or alternatively if that was not the case had contributed to a significant degree to an aggravation of his shoulder condition. The Applicant contended that his shoulder condition had occurred over time and that repetitive strain, very poor ergonomic environments and high tempo work for sustained periods contributed to the eventual labral tear.
The Applicant acknowledged, the question before the Tribunal is inherently a medical question of which he said he deferred to the medical experts and sought that the Tribunal review all the evidence before it in considering whether his claim should be successful.
Having had the benefit of hearing evidence from the Applicant, Dr Kevat and Dr O’Neill at the Hearing and having reviewed the totality of the evidence before it, as set out above, the Tribunal finds that:
(a)the correct diagnosis of the Applicant’s shoulder condition is ‘left shoulder posterior/posteroinferior labral tear’; and
(b)the Applicant’s shoulder condition did not result from any specific injury or incident and as such is for the purposes of the SRC Act a disease, being an ailment or aggravation of an ailment.
In considering whether the Applicant’s shoulder condition or an aggravation of that condition was contributed to, to a significant degree, by the Applicant’s employment the Tribunal notes that significant degree means a degree that is substantially more than material. Relevant matters that may be taken into account are set out in section 5B(2) of the SRC Act.
The medical evidence before the Tribunal is overall consistent in relation to the diagnosis of the Applicant’s shoulder condition and the fact that it was not possible to diagnose the condition without an MRI scan. Both the Applicant’s treating doctors and the independent medical examiners stated that it is not possible to pinpoint when his shoulder condition actually occurred or whether it has been the cause of his shoulder pain since 2009.
The evidence regarding the nature of and particular tasks involved in the Applicant’s employment is not in dispute. The Applicant’s employment has been predominately of an administrative nature, being desk-based work (although not always carried out at a desk whilst on deployment), undertaken at time in environments where ergonomic considerations were not always at the forefront and at times involving frequent long hours.
The Tribunal does not dispute the work hours undertaken or the incredible challenges and difficulties experienced at time by the Applicant in undertaking his work or that he may have suffered from repetitive strain at times. The medical evidence before the Tribunal however provides that the nature of the Applicant’s work, even in such circumstances are unlikely to have contributed to his shoulder condition to a significant degree.
Both Dr Kevat and Dr O’Neill gave evidence that administrative or sedentary activities are unlikely to cause a labral tear itself to occur. Dr McLean, the Applicant’s treating general practitioner as set out above also agreed with that conclusion.
The evidence of Dr Kevat and Dr O’Neill was consistent in relation to the mechanism of injury that causes labral tears to occur. In explaining his opinion of microinjuries, Dr O’Neill told the Tribunal that it is not possible to distinguish between the microinjuries caused to the Applicant’s shoulder from his activities of daily living and his workplace activities.
Both Dr Kevat and Dr O’Neill gave evidence that in their opinions the Applicant was predisposed to a shoulder injury and had degenerative changes to his shoulder of which no individual injury or event could be attributed.
Dr Kevat gave evidence that overuse problems from administrative settings usually involve the hand and wrist rather than the shoulder.
Dr O’Neill told the Tribunal that long hours, repetitive strain, non-ergonomic equipment and rudimental working conditions amongst a stressful situation could contribute as micro traumas however it is hard to separate them from the activities of daily living.
The Tribunal accepts the evidence of the Dr Kevat and Dr O’Neill. In the absence of medical evidence to the contrary, the Tribunal finds that it cannot be satisfied on the balance of probabilities that the Applicant’s shoulder condition was contributed to, to a significant degree by his employment.
Dr Kevat provided evidence that in his opinion the Applicant’s shoulder condition was not aggravated to a significant degree by his employment.
Dr O’Neill outlined in his reports that if the Applicant’s shoulder condition was aggravated by his employment any aggravation would cease within 3 to 4 months from the time the aggravation was recognised at which time non-employment facts would overtake any aggravation caused by workplace duties.
At the Hearing, when asked about his opinion in relation to whether the Applicant’s employment was a significant factor to the aggravation of his shoulder condition, Dr O’Neill told the Tribunal that what he meant overall was that the Applicant’s workplace was the environment in which symptoms were at times noticeable but had not contributed to the worsening of his shoulder pathology. Dr O’Neill told the Tribunal that he could not honestly say that the Applicant’s workplace duties had caused a structural change in the pathology that is being discussed because that is not what he would usually see. Dr O’Neill clarified that his opinion was that the Applicant’s workplace activities may have aggravated his pain symptoms rather than the condition in a structural way.
The Applicant’s evidence in relation to his shoulder pain is not disputed. The medical evidence however makes it very clear that it is not possible to separate the pain he experiences due to activities of daily living and activities outside of the workplace and those due to activities in the workplace. The medical evidence also does not show that the Applicant’s workplace duties or employment have changed his shoulder pathology such to have caused an aggravation of his shoulder injury, being an acceleration or recurrence of the injury.[69]
[69] Section 4 of the SRC Act defines aggregation to include acceleration or recurrence.
The Tribunal accepts the evidence of the Dr Kevat and Dr O’Neill. In the absence of medical evidence to the contrary, the Tribunal is not satisfied on the balance of probabilities the Applicant’s shoulder condition was aggravated, to a significant degree by his employment. Based on the evidence before it, the Tribunal finds that the most appropriate characterisation of the Applicant’s left shoulder labral tear is a labral tear caused by an underlying disease that is running its course.
The Tribunal notes that while it may be said that the Applicant’s shoulder condition is impacted upon by his employment, that is not the test it has to apply. The test requires a finding that the Applicant’s shoulder condition or aggravation thereof, was contributed to, to a significant degree by his employment. On the basis that significant degree means a degree that is substantially more than material, the Tribunal cannot on the medical evidence before it be satisfied the Applicant’s shoulder condition or any aggravation thereof was contributed to, to a significant degree by his employment.
CONCLUSION
Based on the evidence and for the reasons set out above, the decision under review which denied liability under section 14 of the SRC Act in respect of the Applicant’s claimed shoulder condition is affirmed.
Accordingly, the Tribunal finds that the Applicant does not have an injury for the purposes of section 5A of the SRC Act. Therefore, compensation is not payable, pursuant to section 14 of the SRC Act in relation to the Applicant’s claimed shoulder injury.

I certify that the preceding 88 (eighty-eight) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

.....................[SGD]......................
Associate
Dated: 13 June 2024

Date of Hearing: 15 and 16 May 2024

Applicant:

Counsel for the Respondent:

Solicitor for the Respondent:

By MS Teams

Ms Josie Dempster

Mr Nathan O’Reilly

Minter Ellison

Reference was made in the evidence before the Tribunal and at the Hearing in relation to concerns regarding Dr Di Nallo’s conduct. The Tribunal notes that the Respondent did not rely on the report of

Dr Di Nallo at the Hearing. Overall the views of Dr Di Nallo are not inconsistent with those of Dr Kavat and Dr O’Neill.