Aslimoska and Comcare (Compensation) - [2020] AATA 91

Aslimoska and Comcare (Compensation) [2020] AATA 91 (30 January 2020)
Division:GENERAL DIVISION
File Number(s): 2018/0760
Re:Nikolina Aslimoska
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Member W Frost
Date:30 January 2020
Place:Canberra

The decision under review is affirmed pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975.
............................................................
Member W Frost
Catchwords
WORKERS’ COMPENSATION – hip condition – posterior labrum tear – cartilage injury to right hip – osteoarthritis – whether the Applicant suffers an injury as defined in section 5A of the Safety, Rehabilitation and Compensation Act – whether the Applicant suffers a disease as defined in section 5B of the Safety, Rehabilitation and Compensation Act – whether the ailment or aggravation of an ailment was contributed to, to a significant degree, by the Applicant’s employment - whether the Respondent is liable to pay compensation under section 14 of the Safety, Rehabilitation and Compensation Act – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 ss 37, 43
Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A, 5B, 14
Cases
Australian Postal Corporation v Bessey (2001) FCA 266
Caldipp Pty Limited t/as Slaven Motors v Delov [2002] FCAFC 352
Casarotto v Australian Postal Commission (1989) 17 ALD 321
Collins v Repatriation Commission (2009) FCAFC 90
Commonwealth Banking Corporation v Percival (1988) 20 FCR 176
Commonwealth v Beattie (1981) 53 FLR 191
Kropp and Comcare [2019] AATA 4078
Martin v Australian Postal Corporation (1999) FCA 655
Mellor v Australian Postal Corporation (2009) FCA 504
Military Rehabilitation and Compensation Commission v Katterns (2017) FCA 641
Nunan v Cockatoo Docks and Engineering Co Pty Ltd (1941) 41 SR (NSW)
Re Anderson and Australian Postal Corporation (2016) AATA 228
Re Comcare and Reardon (2015) AATA 1166
Roncevich v Repatriation Commission (2005) 222 CLR 115
Treloar v Australian Telecommunications Commission (1990) 97 ALR 321
REASONS FOR DECISION
Member W Frost
30 January 2020
INTRODUCTION

In September 2014, the Applicant, Ms Nikolina Aslimoska, slipped and fell at her workplace, the Department of Health. Three days later, Ms Aslimoska completed an Injury and Incident Report stating that she fell on her ‘right arm (elbow and shoulder)’;[1] Ms Aslimoska did not report falling on, or injuring, her right hip.
[1] Exhibit 1, T3, page 8.
In evidence to the Administrative Appeals Tribunal, Ms Aslimoska said she began experiencing groin and hip pain in early 2015; it was not reported to a medical professional until 30 May 2016. Almost one year after reporting hip pain, and two and a half years after the workplace incident, Ms Aslimoska’s general practitioner asked whether she had ever fallen on her hip. Only at this time was Ms Aslimoska’s fall connected with her hip condition, which had been diagnosed as osteoarthritis.
In June 2017, three months after this connection was made, Ms Aslimoska submitted a workers’ compensation claim to Comcare for posterior labrum tears and cartilage injury to right hip as a result of her fall in 2014. Comcare denied liability for Ms Aslimoska’s claim and she applied for review of that decision by the Tribunal.
The Tribunal has considered the two bundles of documents filed in this proceeding on 13 March 2018 and 24 April 2019, pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act) (being Exhibits 1 and 2, respectively), together with the following additional documents:
(a)Applicant’s Statement of Facts, Issues and Contentions dated 27 June 2019;
(b)Respondent’s Statement of Issues, Facts and Contentions dated 23 April 2019;
(c)Documents obtained by Comcare from the Department of Health pursuant to section 71 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act);[2]
(d)Witness Statement of Ms Aslimoska dated 23 August 2018;[3] and
(e)Witness Statement of Ms Aslimoska dated 6 December 2018,[4] made in response to a ‘Notice to Claimant’ issued by Comcare pursuant to section 58 of the SRC Act.
[2] Exhibit R1.
[3] Exhibit A1.
[4] Exhibit A2.
ISSUE
The issues for the Tribunal to decide are:
(a)whether Ms Aslimoska suffered an injury pursuant to section 5A of the SRC Act;
(b)whether Ms Aslimoska suffers from a disease pursuant to section 5B of the SRC Act; and
(c)whether Comcare is liable to pay compensation to Ms Aslimoska for her right hip condition pursuant to section 14 of the SRC Act.
BACKGROUND
Ms Aslimoska was born in 1976.[5]
[5] Document numbered ‘T4’, page 10, in the bundle of documents lodged with the Tribunal on 13 March 2018 pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Exhibit 1).
In November 2008, Ms Aslimoska commenced employment with the Department of Health.[6]
[6] Exhibit 1, T6.1, page 23.
On 12 September 2014, Ms Aslimoska slipped and fell at her workplace.[7]
[7] Exhibit 1, T3, pages 7-9.
On 15 September 2014, Ms Aslimoska submitted an Injury and Incident Report for the Department of Health.[8] In the section of the Report titled ‘Description of injury, illness or incident’, Ms Aslimoska said that:[9]
At approximately 10.30 am I went to use the disabled toilet on the ground floor as I had a file with me and though [sic] it would be easier to use this toilet as there is a chair in there that I could leave the file on. I slipped on the wet floor and landed on my right arm (elbow and shoulder). I returned to my area and Nikki Hills (First Aid Officer) provided ice which I applied to the area for 30 minutes.
[8] Exhibit 1, T3, pages 7-9.
[9] ibid., page 8.
On 30 May 2016, twenty months after this incident, Ms Aslimoska attended Dr Fletcher, General Practitioner, about right hip pain. Dr Fletcher’s Consultation Record noted as follows:[10]
History: chronic right hip pain
worse on movements
has worsened since she put on a little weight
Examination: right hip exam normal
normal rom,
no tenderness
Diagnosis: hip pain
Treatment/Plan: Canberra Imaging: US [ultrasound] right hip – ongoing right hip pain, worse on movement
[10] Document numbered ‘ST2’, page 2, in the supplementary bundle of documents lodged with the Tribunal on 24 April 2019 pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Exhibit 2).
On 1 June 2016, Ms Aslimoska had an x-ray of her right hip. The report from the Queanbeyan District Hospital noted there was ‘right acetabular subchondral cyst formation, suggestive of OA [osteoarthritis]. No other significant bone on joint abnormality seen. If there is ongoing concern, further evaluation with MRI is suggested’.[11]
[11] Exhibit 2, ST3, page 3.
On 22 June 2016, Ms Aslimoska consulted with Dr Fletcher, who recorded that her right hip pain ‘comes and goes’[12] and referred to her having physiotherapy and losing weight. Dr Fletcher also recorded that Ms Aslimoska ‘wants MRI’ and the ‘Treatment/Plan’ is listed as ‘MRI right hip – chronic right hip pain’.
[12] Exhibit 2, ST4, page 4.
On 14 March 2017, Ms Aslimoska had an MRI of her right hip and the radiologist commented as follows:[13]
There are degenerative changes involving the anterior aspect of the right hip joint with moderate grade articular cartilage thinning and subchondral oedema and cyst formation in the acetabular aspect. These are more than expected in the patient of this age group. Please correlate clinically for the precipitating factors.
Within the limitations of non-arthrographic study, two focal acetabular labral tears are identified in the posterosuperior and anterior acetabular labrum with no evidence of paralabral cyst formation.
A specialist consultation is recommended.
[13] Exhibit 1, T4.1, pages 12-13.
On 16 March 2017, two and a half years after the workplace incident, Dr Fletcher’s Consultation Record noted that Ms Aslimoska’s ‘Presenting Problems’ were ‘[p]reparation of workers compensation certificate, Hip injury, Referral’.[14] Dr Fletcher stated that the MRI confirmed she ‘has a labral tear’ in her right hip and ‘some acceleration to her OA in the area’; she ‘slipped in bathroom at work’ in 2014; ‘filled out incident report at the time’; and it was a ‘workcover issue’. A Medical Certificate for ‘ACT Workers Compensation Claims’ completed by Dr Fletcher on the same day stated that Ms Aslimoska ‘was at work when went into disabled toilet and slipped and fell onto her right hip on a puddle of water’ and ‘[s]ince her injury she has progressively experienced right hip pain. This gradually worsened over a long period of time’.[15] Dr Fletcher referred Ms Aslimoska to an Orthopaedic Surgeon, Dr Alexander Burns, in the following terms:[16]
2 years ago she sustained a heavy fall at work onto her right hip and has been experiencing persistent right hip pain and stiffness in movement that comes and goes. MRI has confirmed cartilage injuries as well as posterior pabrum [sic] tears. This is a workcover injury.
[14] Exhibit 2, ST5, page 5.
[15] Exhibit 1, T16.3, page 58.
[16] Exhibit 1, T4, page 10.
On 7 June 2017, almost three years after her fall at work, Ms Aslimoska submitted a Workers’ Compensation Claim Form (Claim Form) to Comcare.[17] The condition Ms Aslimoska was claiming compensation for was said to be posterior labrum tears and cartilage injury to right hip that occurred as follows:[18]
I was on my way to see a delegate upstairs and stopped into the toilet prior. I walked into the disabled toilet on the ground floor as I had a file I was carrying and went to place the file on the seat near the toilet. This is when I slipped on the slippery wet floor and landed on my right side. Someone had used the shower and there was water on the ground.
[17] Exhibit 1, T5, pages 14-18.
[18] ibid., page 15.
In the Claim Form, Ms Aslimoska recorded that she first noticed her ‘symptoms/injury’ at 10.30am on 12 September 2014, being the time and date of the incident. Ms Aslimoska also stated that she first sought medical treatment on 26 May 2016.
On 11 October 2017, Comcare declined Ms Aslimoska’s claim for posterior labral tear and cartilage injury to her right hip under section 14 of the SRC Act.[19] Comcare stated that it did not consider Ms Aslimoska’s right hip injury arose out of, or in the course of, her employment.
[19] Exhibit 1, T18, page 66.
On 7 November 2017, Ms Aslimoska had another x-ray of her right hip. The findings were recorded as ‘moderate degenerative change within the right hip with joint space narrowing and subchondral sclerosis/cystic change’ and ‘no plain radiographic features which would predispose to cam or pincer type femoroacetabular impingement’.[20]
[20] Exhibit 2, ST7, page 7.
On 16 November 2017, Dr Alexander Burns, Orthopaedic Surgeon, reported to Ms Aslimoska’s General Practitioner, that:[21]
She presents with a problem with her right hip which has been hurting for a couple of years. In September 2014 she fell at work on a wet floor in a bathroom and landed on her shoulder and right hip. It wasn’t initially painful but over time it has become more painful. She feels pain in the groin with occasional locking and sometimes severe pain that she can’t walk. It’s been a lot better over the last 12 months, and her range of motion has remained intact but big days or increased exercise will make it more uncomfortable. She sometimes has night pain. She has no history of dysplasia and no family history of osteoarthritis. She gets no mechanical symptoms of clicking, locking or catching.
On examination today she walks without a limp and has a negative Trendelenburg test with no tenderness over the trochanter and equal leg lengths. The range of motion in her hip is from 0° to 110° with 40° of ER and 20° of IR bilaterally with a negative impingement test. She has no SI joint tenderness. She has a normal neurovascular examination and no pain on resisted psoas contraction or rectus femoris.
Her x-rays show that she has some early joint space narrowing on the right side and her MRI scan confirms this and she has some subchondral cysts and some bone oedema.
Nikki has early arthritis in her right hip. I’ve told her that she should continue non-operative treatment for as long as possible with glucosamine and chondroitin, fish oil and turmeric as well as anti-inflammatories. Down the track a ceramic-on-ceramic hip replacement will be beneficial for her but only at a time when her pain and quality of life justifies this.
[21] Exhibit 2, ST8, page 8.
On 29 November 2017, Ms Aslimoska requested reconsideration of Comcare’s determination of 11 October 2017.[22] In a supporting document to her reconsideration request, and in response to Comcare’s findings in making its determination, Ms Aslimoska stated that:[23]
I have been treating my hip since the date of injury to this date with anti-inflammatory medicine and rest. The 25/5/2016 was the date I saw my GP as medication and rest were not alleviating my symptoms which was sever [sic] pain, stiffness and difficulty walking (limping). I still take medication and apply rest when I have pain without seeing the GP.
I fell on my right side and sustained an immediate injury to my right elbow which was treated at the time with ice. The pain in my hip was not immediately evident but intensified progressively thereafter.
[22] Exhibit 1, T21, page 72.
[23] Exhibit 1, T21.1, pages 73-74.
On 20 December 2017, Comcare affirmed its determination denying liability for Ms Aslimoska’s claim,[24] and informed her that there ‘is no dispute that you have an injury, namely arthritis in your right hip’; however it was not satisfied that Ms Aslimoska’s 2014 fall led to an injury to her right hip such that it arose out of, or in the course of, her employment.
[24] Exhibit 1, T24, pages 86-89.
On 16 February 2018, Ms Aslimoska applied to the Tribunal for review of Comcare’s decision.[25]
[25] Exhibit 1, T1, pages 1-5.
LEGISLATION
Subsection 14(1) of the SRC Act provides:
Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
‘Injury’ is defined in subsection 5A(1) of the SRC Act relevantly to mean:
(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...
‘Disease’ is defined in subsection 5B(1) of the SRC Act as:
(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.
Subsection 5B(3) of the SRC Act states that ‘significant degree’ means ‘a degree that is substantially more than material’.
For completeness, 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).
EVIDENCE
Ms Aslimoska
In a Witness Statement dated 23 August 2018, Ms Aslimoska said that, prior to the fall in September 2014, she had not had ‘any noteworthy or noticeable hip pain’; she often rode a bicycle and played ‘casual soccer’, but could not ‘recall any significant incidents of a fall on my right hip other than the fall on 12 September 2014’.[26] In relation to that incident, Ms Aslimoska stated as follows:
[26] Exhibit A1, Witness Statement of Nikolina Aslimoska dated 23 August 2018.
On 12 September 2014, I went to use the bathroom on the ground floor of the Therapeutic Goods Administration building. I had picked up a few files to take with me as I was on the way to see a colleague. I was going to use the disabled bathroom because I knew there was a chair in the bathroom which I could use to rest the files on whilst I used the bathroom.
I recall that the door was open already, and so I walked in straight away without having to wait. Then, as I took a few steps into the bathroom walking towards the chair on which I would rest my files, I slipped on wet tiles and fell. There was a shower in the bathroom, and so I believe that the water must have come from the shower after somebody had previously used it. There was a reasonably large amount of water on the floor when I looked at it closely after having fallen, but there was not a big puddle as such, but rather, separate pools of water.
When I fell, my feet slipped out from underneath me and I fell from about hip height on to my right hand side of my body which impacted with the tools [sic]. I avoided my head hitting the tiles by instinctively keeping it up as I was falling. My right shoulder and right elbow collided with the tiles, but my right hip also hit the tiles as I recall there was a loud slap from my right hip as my dress came up and my skin hit the tiles and made a slapping sound as it impacted with the tiles.
At the time of the fall, I may not have noticed that there was pain in the hip. I do not recall limping on that day, but I was shaking which got progressively worse throughout the day which led to me eventually reporting the incident to Nikki Hills, the first aid officer in my team. I believe I was likely in shock. I was icing my arm and shoulder for 30 minutes because it was tender but I do not recall significant immediate pain there at first. I then decided I had to report it to Nikki Hills, the first aid officer, later in the day because I was shaking more and more. I filled out the incident report, and I recall that there was redness or bruising right shoulder which is why that was mentioned in the incident report. As the injuries to the right shoulder was the only injuries that were noticeable, and because I did not notice immediate pain in my hip, the hip impact and any symptomology was not noted in the incident report.
Reporting of right hip injury and diagnosis of problems
Initially, right hip pain was not immediately noticed.
However, from about early 2015 onwards, I started to notice pain in my right hip which caused significant discomfort and difficulty with movement, causing me to even develop a limp on occasions when it would flare up. Although it caused me pain, I did not report it to my doctor at this time.
Ms Aslimoska said further that when she required sick leave from work she would ‘typically’ describe the particular illness or ailment from which she was suffering in a text message to her supervisor; however, ‘where I did not identify a specific illness or ailment, it was right hip pain which was the reason for leave to be taken’.[27] Ms Aslimoska extracted in her Witness Statement the text of two such messages, from 20 April 2015 and 20 May 2015, which said ‘not feeling well’ and ‘don’t feel well’, but which did not particularise her illness or ailment. Conversely, a text message one year later from 27 May 2016 noted that she ‘had a rough night and didn’t sleep (hip pain)’ and would be at work late on that day.[28]
[27] Exhibit A1, page 2.
[28] ibid.
Ms Aslimoska said that she is a ‘stoic’ person in relation to pain and minor illnesses and will ‘try and soldier on, which is why I never felt it necessary to bring the pain to the attention of a doctor for quite some time’. Ms Aslimoska continued:[29]
[29] ibid.
I recall that in April 2016 and May 2016, I was starting to develop severe pain in my right hip. I recall that this was one of the most severe periods of pain that I had experienced in my right hip. I was taking pain medication constantly to manage the pain and to be able to continue attending work and attending to my day-to-day activities.
In the subsequent months beyond May 2016 and for the remainder of the year, the pain improved somewhat and so I managed my symptoms with painkillers.
…
Eventually, after over a year of right hip pain and following from a peak of pain in April and May of 2016, I decided that the pain was becoming too severe, and so I needed to take action. On 30 May 2016, I consulted Dr Mark Fletcher of Jerrabomberra Medical Centre and reported my ongoing chronic right hip pain…because of continued severe pain which flared up particularly during a cruise, on 22 June 2016, I returned to see Dr Fletcher…I cannot now recall whether it was during the 30 May 2016 conversation or the 22 June 2016 conversation, but I recall Dr Fletcher made the observation “have you had a fall on the right hip?” or words to that effect. It was this comment that made it click that the fall on the right hip that occurred at work may have brought our [sic] right hip pain or exacerbated right hip pain which may have developed eventually.
…
Impacts of right hip injury
Once the pain started to occur in my right hip, I also started to feel pain in the groin with occasional locking. The pain in my hip and generally is sometimes severe, such that I cannot walk, and walk with a limp.
…
on about 2 June 2016, whilst I was on a family holiday cruise, I had a flare up episode of not being able to get out of bed due to the right hip pain. I was required to treat with painkillers…

Ms Aslimoska also gave evidence at the hearing before the Tribunal. Ms Aslimoska confirmed that her Witness Statement of 23 August 2018 was true and correct and she did not wish to change anything in that statement. Ms Aslimoska also confirmed adherence to her second Witness Statement made on 6 December 2018.[30]
[30] Exhibit A2.
Examination-in-chief
Ms Aslimoska told the Tribunal in relation to the date of onset of her right hip pain that she did not:
have a definite date; it’s not something that I’ve made a mental note of. I know that the hip pain started early 2015 and continued off and on. I did have a limp off and on in that period and…there was upcoming trip to the US and considerations were made as to whether I would be going on that trip based on the fact that I had problems with my hip at the time.
In relation to the impact of the hip condition on her life, Ms Aslimoska said:
The pain has certainly affected my sleep, definitely. Activities and chores have lessened …after the injury. I have my Mum and sister help and then when they couldn’t, got a cleaner coming once a week. I don’t do as many sports as I used to.
Ms Aslimoska said she takes ibuprofen medication when needed; sometimes this can be for two to three consecutive days at a time, however subject to her pain, it may also not be required for up to a week. Ms Aslimoska gets occasional massages, but otherwise rest and medication is used for her hip condition. Ms Aslimoska said she has had time off work due to her hip condition, but she usually takes medication and attends work.
Cross-examination
Under cross-examination, Ms Aslimoska said in relation to the incident at work on 12 September 2014 that she fell on her right side, the floor was wet, so she heard a slap, but she held her head up to avoid it hitting the tiles.
Counsel for Comcare took Ms Aslimoska to her Injury and Incident Report dated 15 September 2014.[31] Ms Aslimoska confirmed that she understood the purpose of submitting such a form was to correctly record and inform her employer about the manner in which the incident occurred so that, if there is an injury as a result of that incident, there would be a contemporaneous report. Specifically, Ms Aslimoska agreed that the form was to record as soon as possible, the manner in which she fell and, in particular, the parts of the body she thought at that time she may have injured. Ms Aslimoska further agreed the Injury and Incident Report is to record as accurately as possible the manner in which she fell and to avoid anyone else suffering a similar workplace incident. Accordingly, Ms Aslimoska confirmed she understood the importance of completing that document.
[31] Exhibit 1, T3, pages 7-9.
Counsel referred Ms Aslimoska to the section of the Injury and Incident Report regarding a description of the ‘injury, illness or incident’, which asked, amongst other things, ‘What was the injury, illness or incident and how did it occur?’, including ‘Contributing factors’ and ‘Affected body part/s’ and asked for ‘as much detail as possible’.[32] Ms Aslimoska said she was provided with, and asked to complete, a ‘pre-populated’ Injury and Incident Report by the First Aid Officer at work, Ms Nikki Hills. Ms Aslimoska could not recall whether the form was pre-filled by Ms Hills, but said this appeared to be so based on documentary evidence she had reviewed in advance of the hearing. Ms Aslimoska agreed, based solely on her review of that documentation that only she and Ms Hills had filled in the Incident and Injury Report. Ms Aslimoska said that she had reported the incident to Ms Hills on the day it occurred; Ms Hills had administered some first aid and was therefore able to pre-populate the form for Ms Aslimoska to review and complete.
[32] ibid., page 8.
Despite previously agreeing that it was important to record the incident accurately to inform her employer about it and the risk to other employees in future, Ms Aslimoska said she was unsure it could be said that she ‘carefully considered’ the completed report, because it was ‘a report of an event, I don’t look at the legalities…it’s a report of an incident that happened at a place and a time’. Ms Aslimoska said she ‘put in a small bit of information at the time…I didn’t spend time on this form, I literally edited that bit or changed that bit or inserted, whatever changes I made which Nikki couldn’t fill out and that was the extent of my consideration…I don’t know whether it was very extensive’. Ms Aslimoska said she did not spend more than thirty minutes reviewing and completing the form at the end of the day before she sent it to her employer.
Ms Aslimoska could not recall whether she entered in the Injury and Incident Report her name, the date and time of the incident or its location. In relation to the section of the report regarding a description of the ‘injury, illness or incident’, Ms Aslimoska confirmed that she did not mention her right hip coming into contact with the floor when she fell at work. Ms Aslimoska told the Tribunal that her right shoulder and elbow ‘is unable to come into contact with the floor without my right hip being there…it’s not written in there, but that’s the statement I gave at the time’. Ms Aslimoska agreed that, knowing the importance of the Injury and Incident Report and it being a positive affirmation of the incident made three days later, she did not mention in it that her right hip came into contact with the floor. However, she disagreed with Counsel’s proposition that this was because her right hip did not hit the floor.
Ms Aslimoska said she omitted in the Injury and Incident Report the injury to her right hip or that it hit the floor because it was ‘quite a rushed explanation of what happened. The attention to detail as in expanding on every single detail wasn’t put in the form. I can’t give another explanation’. Ms Aslimoska said she was not thorough enough in describing the incident, although she agreed that she was not under any time pressure when completing the report other than normal ‘business as usual’ tasks for work.
Ms Aslimoska also agreed that she was not limited by space in the Injury and Incident Report in being able to describe the incident. In this regard, she agreed that there was adequate space in which to include her version of the incident that her right hip fell on the floor, although this was not done.
Ms Aslimoska confirmed that the first time she made any complaint about right hip pain was to her general practitioner, Dr Fletcher, on 30 May 2016. Dr Fletcher’s Consultation Record said her history was ‘chronic right hip pain’, which became ‘worse on movements’ and ‘worsened since she put on a little weight’.[33] However, Ms Aslimoska told the Tribunal that her right hip pain ‘started playing up’ prior to her weight changing.
[33] Exhibit 2, ST2, page 2.
Ms Aslimoska agreed that there was a significant period of time between the incident in September 2014 and reporting right hip pain to her general practitioner in May 2016, and that she had opportunities before this time to do so. Ms Aslimoska said she went to her general practitioner because she had ‘put up with the pain’ until that time; medication had enabled her to endure it up until then. Ms Aslimoska agreed that on 30 May 2016 she did not report to Dr Fletcher that her right hip pain was caused by her fall at work.
On 22 June 2016, Ms Aslimoska consulted Dr Fletcher, with her results from an x-ray on 1 June 2016 that showed ‘evidence of OA [osteoarthritis]’.[34] Ms Aslimoska agreed that she did not at this consultation mention any association between her right hip pain and her fall at work in 2014.
[34] Exhibit 2, ST4, page 4.
On 16 March 2017, two and a half years after her fall, Ms Aslimoska again consulted Dr Fletcher regarding ‘ongoing right hip pain’. Ms Aslimoska agreed that it was only at this time that it became apparent that her fall may have been related to her right hip pain. In this regard, Dr Fletcher’s Consultation Record noted that Ms Aslimoska fell at work in 2014, it was a ‘workcover issue’ and she ‘filled out incident report at the time’.[35] Ms Aslimoska again agreed that the Injury and Incident Report she completed soon after the incident in 2014 did not mention her right hip having any contact with the floor when she fell. A labrum tear of Ms Aslimoska’s right hip was the diagnosis and she was referred to Dr Alexander Burns, Orthopaedic Surgeon.
[35] Exhibit 2, ST5, page 5.
On 16 November 2017, Dr Burns sent a letter to Dr Fletcher after Ms Aslimoska attended on Dr Burns regarding her right hip condition.[36] Ms Aslimoska agreed that letter set out a history of the incident she provided to Dr Burns, as follows: ‘She presents with a problem with her right hip which has been hurting for a couple of years. In September 2014 she fell at work on a wet floor in a bathroom and landed on her shoulder and right hip’. Ms Aslimoska agreed that, other than her and Dr Fletcher concluding why she was experiencing symptomology in her right hip, this was the first time she (or anyone else) had positively represented to a medical practitioner that she had fallen on her right hip.
[36] Exhibit 2, ST8, page 8.
Counsel for Comcare took Ms Aslimoska to her Claim Form dated 7 June 2017 for posterior labrum tears and cartilage injury to right hip.[37] Ms Aslimoska agreed that she made no specific reference to hitting her right hip on the floor in the Claim Form. Ms Aslimoska said she did not ‘spend a lot of time’ completing the Claim Form, however understood its importance in notifying the Commonwealth of her claim and the cause of her injury. Ms Aslimoska also agreed that by completing the Claim Form she was seeking compensation from the Commonwealth for her right hip injury.
[37] Exhibit 1, T5, page 14.
Counsel for Comcare put to Ms Aslimoska that before submitting the Claim Form in June 2017, she had had almost three years to work out the manner in which she fell at work in September 2014. Ms Aslimoska only agreed that this was the timeframe; she said she did not consider the process or its importance. Counsel suggested that where the Claim Form asked for details of the incident and how Ms Aslimoska was injured, this was a clear representation to her to inform the Commonwealth how she suffered her injury and, as with the Incident and Injury Report, she did not include in the Claim Form reference to falling on her right hip. Ms Aslimoska agreed with this summation. Counsel then asserted that at no stage during Ms Aslimoska’s fall did her right hip make contact with the floor; Ms Aslimoska disagreed and her explanation for not including this in the Claim Form was that:
they’re the words I’ve used to describe the event. I wasn’t explicit in listing all the body parts that touched the floor. Falling on my right side, I can’t see how my elbow and shoulder can be on the floor without my bottom half not being there…I slipped on a bathroom floor on my right side. I could have probably expanded on that and written “down the shoulder”, but I didn’t.
Counsel referred Ms Aslimoska to her eleven week overseas trip with her family to the United States, which was undertaken in conjunction with her husband there playing representative gridiron for Australia. In July 2015, ten months after the workplace incident, Ms Aslimoska flew directly from Sydney to Los Angeles and then to Houston for three days, followed by Ohio to attend the gridiron competition. Ms Aslimoska said a non-medically trained friend, who was also travelling; accompanied her to assist if required with her children or luggage. Ms Aslimoska said during this time she was walking around and functioning normally; she did not see a doctor, but took her ibuprofen medication which ‘masked’ her hip pain.
Almost one year later, in June 2016, Ms Aslimoska went on a family cruise for approximately eight nights from Sydney around the Pacific. Ms Aslimoska said she disembarked at every port throughout the duration of the cruise. This, Ms Aslimoska agreed, involved significant walking and she was unassisted at all times. Counsel for Comcare referred to Ms Aslimoska’s Witness Statement of August 2018, in which she said that while on the cruise ‘I had a flare up episode of not being able to get out of bed due to the right hip pain. I was required to treat with painkillers’.[38] Ms Aslimoska told the Tribunal this lasted for one day and she was twice required to be carried by her husband from the bed to the bathroom to use the facilities; she confirmed that she did not see a doctor on the cruise.
[38] Exhibit A1, page 4.
In relation to the medical evidence before the Tribunal, Ms Aslimoska agreed with Counsel for Comcare that on the request of her solicitors she attended on Dr Gregg Burrow, Orthopaedic Surgeon, and Dr Loretta Reiter, Consultant Rheumatologist, and Comcare required her to attend on Dr Brett Krause, Orthopaedic Surgeon.
Ms Aslimoska agreed that Dr Burrow said she could not have suffered her labral tear as a consequence of the fall on the basis that, if she had fallen as now described, she would have experienced immediate and significant pain in her right hip. Ms Aslimoska agreed that this was consistent with her evidence that she did not experience any pain when she fell on her right hip; it was not until early 2015 that Ms Aslimoska said she started to feel symptoms in her right hip.
Counsel for Comcare took Ms Aslimoska to her second Witness Statement dated 6 December 2018 regarding her participation in organised soccer competitions in 2012, 2013 and 2014.[39] Ms Aslimoska agreed that she did not cease playing soccer due to her right hip condition.
[39] Exhibit A2.
Finally, Counsel put to Ms Aslimoska the general proposition, with which she agreed, that a person’s memory or recollection of certain events is better the closer to those particular events. Counsel then took Ms Aslimoska back to her first Witness Statement from August 2018, being almost four years after her fall at work, in which she provided comprehensive detail about the manner in which she said this occurred. Ms Aslimoska agreed with Counsel’s assertion that there was no reason why this detail also could not have been provided in her Injury and Incident Report submitted three days after the fall in September 2014. Ms Aslimoska also agreed that such detail could have been included in the Claim Form she lodged with Comcare in June 2017. It was suggested that Ms Aslimoska included this comprehensive detail in her Witness Statement because she knew ‘there is a real issue in this case as to whether or not the Tribunal will accept if you did in fact connect with the tiles with your right hip’. Ms Aslimoska said her explanation in the Injury and Incident Report was ‘short and succinct’ and ‘at the time that’s all I could produce’. Ms Aslimoska said her Witness Statement was provided for use in the Tribunal proceeding, she was not rushed and had time to consider it more than the Injury and Incident Report. Counsel contended that Ms Aslimoska had provided in her Witness Statement very specific detail of an event almost four years earlier and, in light of her acknowledgement that her memory is not perfect, suggested that the description in that Witness Statement of the manner in which the incident occurred was untrue. Ms Aslimoska disagreed with this assertion and said it was ‘a more elaborate explanation of the accident. I remember the accident very clearly, very clearly. The way I’ve described it in the incident report is a shortened version and I’ve expanded on it in my Witness Statement’.
Re-examination
Counsel for Ms Aslimoska briefly re-examined her and asked whether she had ever expressed to anyone that she was incapable of walking or moving about. Ms Aslimoska said she had a limp on occasion and had informed work supervisors, friends and family.
Medical evidence
Medical reports were submitted to the Tribunal from three experts and all were scheduled to give evidence at hearing. In advance of the hearing, Ms Aslimoska’s representatives said that she did not intend to call to give evidence Dr Gregg Burrow, Orthopaedic Surgeon, from whom she had obtained a medical report.[40] Comcare instead called Dr Burrow. Separately, Comcare ultimately decided during the course of the hearing not to call Dr Brett Krause, Orthopaedic Surgeon, from whom it had obtained a medical report, which was before the Tribunal.[41] As a result, Dr Burrow and Dr Reiter provided concurrent evidence to the Tribunal.
[40] Exhibit 2, ST10, pages 19-25.
[41] Exhibit 2, ST12, pages 35-43.
Evidence of Dr Brett Krause (Orthopaedic Surgeon)
On 4 October 2018, Dr Krause provided a report to Comcare on his review of Ms Aslimoska, which was subsequently filed with the Tribunal, although again noting that he was not called to give evidence at the hearing.[42] Dr Krause relevantly reported as follows:
[42] ibid., pages 35-43.
She walked into the toilet carrying the folders and her right leg slipped out from underneath her. She fell striking her shoulder on the ground but landing on the right side of the floor…She said that her shoulder was tender after her fall and that she felt that an incident form should be completed. She went home at the end of the day quite normally and followed her normal routine without thinking much more of it. By June 2015, she noted that she was getting some discomfort in the right groin. This was at the level where she was taking intermittent medication but on some days she would be so sore that it would stop her walking and she was noted to be limping.
…
Ms Aslimoska feels groin pain constantly in the right hip.
…
Ms Aslimoska’s activities of daily living are affected depending upon the severity of the discomfort. She can drive satisfactorily. She can cook, wash and iron without difficulty. Vacuuming often makes her more symptomatic and when she is having a bad day her mother often helps with these activities. She can do her shopping without difficulty but gardening does aggravate the problem and she does not participate in this any further.
…
Ms Aslimoska felt her symptoms of the right hip had started in June 2015 but did not raise this with her general practitioner for 12 months.
The general practitioner asked her if she had a fall which made her put the two events together.
She did not notice any pain from the right hip at the time of the fall until nine months later with her recollection of onset of symptom and did not raise it with her general practitioner for further 12 months.
It is quite clear from her history and examination that she has osteoarthritis of the right hip joint…The issue at hand is whether the fall in September 2014 was contributory and the answer to this in terms of causation is likely to be no and in terms of exacerbation is likely to be probably.
It is entirely likely that Ms Aslimoska had early degenerative changes in the hip at the time of her fall. She did not notice any pain in the hip immediately after the fall for some nine months and did not raise it with her general practitioner for a further 12 months following that. It is unlikely that the fall caused the degeneration in the right hip joint but it may well have aggravated those pre-existing changes.
The labral tears are part and parcel of the degenerative change within the hip as is the subchondral cyst formation rather than a separate cause leading to subsequent degeneration although that is possible in some circumstances, often with pre-existing deformity of the hip.
Dr Krause’s diagnosis of Ms Aslimoska’s hip condition was ‘early osteoarthritis of her right hip’ and he stated that on the balance of probabilities ‘it is unlikely’ that the fall at work was relevant to the onset of Ms Aslimoska’s hip pathology. However, Dr Krause stated that Ms Aslimoska is of an early age to:
develop degenerative change in the hip without some predisposing factor such as dysplasia or trauma (such as fracture or dislocation) but given the timeframe involved it would appear most likely that there were very early degenerative changes present at the time of the fall which has aggravated these to a degree that they then became symptomatic some nine months later.
Evidence of Dr Loretta Reiter (Consultant Rheumatologist)

On 24 July 2018, Dr Reiter provided to Ms Aslimoska’s solicitors a report of her review on 19 July 2018, which was subsequently filed with the Tribunal.[43] Dr Reiter relevantly reported as follows:
[43] Exhibit 2, ST9, pages 9-13.
On the 12/09/2014 she walked into the Disabled Toilet at work, which also doubles as a shower space and slipped on a puddle of water. Her right foot slipped out from under her, with her then falling onto her right lateral hip area followed by her right upper body. She returned to her desk and informed her colleague. Then, it was not until about one or two hours later, when she still had the “shakes” that she decided to complete an Incident Report. At the time her main pain affected her shoulder area, so she iced it. After the incident, she noted the gradual onset of mild discomfort that would occur intermittently in her right groin. Her right groin pain would usually occur after she had been sitting or resting, with associated stiffness and then when started to walk after sitting, she would limp, until her pain and stiffnes [sic] settled. The frequency and severity of these episodes were increasing, so on the 30/05/2016 she was seen by her General Practitioner and advised just to use Nurofen…Following this, she went on a Cruise and three days into the Cruise she had such severe pain and stiffness that she could not get [out] of bed in the morning, so her husband had to carry her to the toilet. What is most interesting is that by the late afternoon she was 100% better.
…
CURRENT SYMPTOMS:
Currently, she has some discomfort in her right groin on most days… whilst sitting in the consultation she had mild pain, which she rated about 2/10, where 10 is the worst imaginable pain and zero is no pain.
…
ACTIVITIES OF DAILY LIVING:
Her right hip condition currently does not limit her in her activities of daily living, as she can shower and dress herself, do the cooking, cleaning, hanging out the washing, as well as do the shopping. She readily exercises four to five days per week at the gym on a stationary bike, doing 30-40 minutes and, she also does Plyometrics.
…
DIAGNOSIS:
The episode of severe pain and early morning stiffness that Ms Aslimoska reported her right hip joint when she was on the Cruise is a very good description of inflammatory joint pain, as her pain was 100% better by the afternoon with mobilizing. Her MRI observed a mild left hip effusion, which indicates an underlying inflammatory arthritis. They did not comment and I was not given the films to observe whether or not she had an effusion on the right.
There is evidence of early degenerative joint disease indicated by Grade II/III chondral thinning, as well as subchondral cyst formation. These changes occur over years and would not have occurred as a consequence of the fall that she had at work in the Disabled Toilet on the 12/09/2014. Three years would not be a sufficient amount of time for these changes to occur. However, it is possible that the fall may have caused a labral tear, which was noted on her MRI, one in the posterior superior acetabulum and the other in the anterior acetabulum. This could to some degree contribute to to [sic] aggravating and accelerating her right hip osteoarthritis.
…
If the accident caused an aggravation of a pre-existing condition, what level of the continued disabilities attributable to the injuries sustained on the above date and its subsequent treatment?
The accident most likely caused an aggravation of a pre-existing condition, which is her pre-existing degenerative joint disease. The level of continuing disability attributable to the injury is possibly 20%, but it is very difficult to determine.
…
Your opinion as to whether Ms Aslimoska’s employment has contributed to a significant degree to the injury.
The labral tear will have a minor contribution to accelerating the osteoarthritis of her hip, so therefore her employment has contributed a minor degree to her condition.
Evidence of Dr Gregg Burrow (Orthopaedic Surgeon)
On 10 August 2018, Dr Burrow provided to Ms Aslimoska’s solicitors a report of his review of her on that day, which was subsequently filed with the Tribunal.[44] Dr Burrow relevantly reported as follows:
[44] Exhibit 2, ST10, pages 19-25.
History of the Incident
On 12/09/2014, at work, Mrs Aslimoska was carrying files as she walked into the ground floor bathroom, slipped on the wet floor and fell onto her right side. She did not knock herself out, managed to get herself up and did not attend hospital.
She returned to her work desk and put ice on her arm and in the early afternoon reported the incident to the work’s First Aid officer and completed incident forms. She had a bruise and abrasion about the right arm and she was able to drive herself home…
You note in your instructing letter that she did not experience right hip pain straight away and this is confirmed, but she says she had increasing right hip pain from about March 2016 when she noted pain when sitting at work. At this stage, she was limping.
…
Current Symptoms
Mrs Aslimoska says that she has significant groin pain and measures it at 8/10 on a visual analog scale and it wakes her at night. The pain is intermittent and variable, often difficult to predict…
Capability
Home Chores
Since her work incident, she has had difficulty performing some home chores including vacuuming, sweeping, washing and hanging clothes, making beds, pushing a heavy shopping trolley or carrying shopping bags and is helped by her family, but has employed a cleaner 4 hours weekly.
…
Sports & Hobbies
Prior to the work incident, Mrs Aslimoska was extremely fit and enjoyed gym and spin classes 4 or 5 times a week and played Masters Soccer each weekend in-season.
She has been unable to return to soccer since the work incident and can manage gym and spin only several times a week now days, and to lesser intensity.
…
In relation to the right hip condition experienced by Mrs Aslimoska, please comment on the cause of her condition.
Mrs Aslimoska says that her hip was painful from the work fall. There is documentary evidence to say that she required an MR scan 2½ years after the fall in March 2017. Your instructing letter says that she did not develop pain in the hip-groin region immediately.
It is possible she tore her labrum and had documented hip pain and time off work immediately after the work incident and as such, then she probably had a labral tear and has developed quite rapid arthritis after that, hinted but not confirmed in Dr Burns’ letter of 17/11/2017. In the absence of that documentation, it would seem unlikely that her current hip arthritis is due to her work fall.
…
Your opinion as to whether the worker’s employment has contributed to a significant degree to the injury.
It would appear from the history given by Mrs Aslimoska and your instructing letter that she did not develop symptoms in the hip for some considerable period, perhaps even 2½ years after the work incident. It would be difficult then to attribute the work incident to the development of subsequent hip arthritis. Mrs Aslimoska specifically asked whether she could have torn the labrum in the work incident. This is certainly a possibility, but if so, she would have had immediate groin or buttock symptoms that would have been continuous from the work incident and resulted in rapid acceleration and deterioration by way of hip arthritis, ultimately confirmed by Dr Burns.
Ms Aslimoska’s solicitors requested a supplementary report from Dr Burrow and asked him to consider the reports of Dr Reiter and Dr Krause. Dr Burrow provided a supplementary report dated 8 December 2018[45] and responded to the following questions (in bold) put to him by Ms Aslimoska’s solicitors:
[45] Exhibit 2, ST13, pages 49-51.
Ms Aslimoska had pre-existing asymptomatic arthritis in the hip before the fall.
There is minimal or no evidence of this from the material made available to me.
Whether the labral tear occurred as a consequence of the fall assessed on a more likely than not basis.
It is likely the labral tear did not occur as a result of the trauma related to the fall, but is entirely related to constitutional arthritis and a part of the normal spectrum pathology seen in arthritis.
Whether the fall and tear were materially contributing factors to the arthritis becoming symptomatic in mid 2015 onwards, assessed on a more likely than not basis (in this context ‘material’ meaning only a contributor which does not need to be the dominant contributor, ie does not matter that there was a pre-existing asymptomatic arthritis).
Given the delay in presentation, (acknowledging that Ms Aslimoska seems to have provided 3 different timelines of presentation of groin and hip symptoms) [it] is my opinion that the fall was not a material contributory factor to the subsequent presentation of arthritis of the hip.
In his supplementary report, Dr Burrow noted that Dr Reiter took a history from Ms Aslimoska that ‘she had right groin pain after the incident’. Dr Burrow stated that he could ‘somewhat agree’ with Dr Reiter’s opinion regarding the labral tear, ‘but, given Dr Reiter took a history of ongoing groin pain immediately after the work incident, at my examination in August however Ms Aslimoska did not describe any immediate post-incident groin symptoms until 1-1½ years after the incident when she had increasing symptoms’. In this regard, Dr Burrow noted that he had no documentary evidence about Ms Aslimoska reporting groin pain after the September 2014 incident. Dr Burrow stated that ‘any labral tear that occurred as a result of the work incident would have resulted in immediate, quite significant symptoms of which she would have complained and reported’. Dr Burrow was of the opinion that ‘any labral tear…is degenerative in nature and is co-existent and part of the normal spectrum of pathological findings seen in normal arthritis which is constitutionally not traumatically based’.[46]
[46] Exhibit 2, ST13, page 50.
Further in his supplementary report, Dr Burrow noted that the history provided by Ms Aslimoska to Dr Krause included that she ‘“was getting some discomfort in the right groin” from June 2015, 9 months after the work incident, again a different history to that which I took and a different history then [sic] that recorded by Dr Reiter’.[47]
[47] ibid., page 51.
Dr Burrow stated that he was ‘in some disagreement with Dr Krause’, because if Ms Aslimoska’s fall caused a labral tear, she ‘would have had immediate hip symptoms. The fact that she did not, and in his words had no symptoms for 9 months, indicates there was no traumatic labral tear’.[48] Dr Burrow also said that he found it ‘difficult to agree’ with Dr Krause’s opinion that the fall aggravated Ms Aslimoska’s pre-existing asymptomatic changes because:[49]
there is no record of Ms Aslimoska having symptoms in her right hip for at least 9 months after the accident. If the work incident had caused a significant aggravation of background pre-existing arthritis, there would have been symptoms related to that aggravation that occurred in a contemporaneous manner. No evidence of this has been made available to me. I am forced to conclude then that the subsequent presentation of groin pain was due to the normal presentation of background constitutional arthritis some 9 months after the co-incidental fall at work.
[48] ibid.
[49] ibid.
Concurrent evidence of Dr Reiter and Dr Burrow
At the hearing, Dr Reiter and Dr Burrow gave concurrent evidence and answered questions agreed by the parties and put by the Tribunal, as follows:
What is the diagnosis of any condition in the hip suffered by the Applicant?
Dr Reiter: In my opinion she suffered potentially a labral tear and an acceleration, aggravation of her pre-existing underlying osteoarthritis due to the trauma that she sustained when she slipped over in the bathroom onto her right side.
Dr Burrow: I came to a somewhat different conclusion, in that I believe she suffers from arthritis in the right hip now. Because of the history she gave me of symptoms becoming obvious and reported around March 2016, some eighteen months after the initial event, I didn’t think the event itself had either caused the labral tear or caused the arthritis.
When did the Applicant first suffer any condition identified in answer to the previous question?
Dr Reiter: Mrs Aslimoska informed me when I reviewed her that it was almost immediately after in the days pursuant; I have no reason to not believe her.
Dr Burrow: When I saw her for initial consultation on August 2018, my instructing letter said that she had no symptoms immediately after the incident and I confirmed that with her when I took her history and then she told me that she developed symptoms around March 2016, I think it was, or in the months just preceding that. So there was some sort of reasonable gap, I said about eighteen months, maybe twelve months, something in that…before she developed symptoms. And then I was…presented with alternative histories, including Dr Reiter’s report, that she had described symptoms immediately from the event, which is not the history that I had taken or that I could confirm in the medical documents provided to me for my index [independent expert] report.
Did the Applicant suffer an injury to her hip when she fell at work on 15 September 2014? If so, what was the diagnosis of any such injury?
Dr Reiter: Well my opinion was that possibly she suffered the labral tears at that time, but they can also I guess occur over time just with usual use and wear and tear, so it’s difficult to be absolute that that definitely occurred. But given the trauma that she described, falling heavily, and feet slipping out from under her, directly onto her decanter. That would cause force of the...force through to push the head of the femur into the acetabulum and potentially shear some of the cartilage, so that’s why I was of the opinion that there was an aggravation of her underlying osteoarthritis.
Dr Burrow: So I concluded based on the history of there being no symptoms post incident, that she suffered no significant injury as a result of the incident to her right hip and I further commented that in the case of an acute [indecipherable] sportspersons or motor vehicle accidents that they complain of immediate groin or hip-based pain, which is completely obvious at the date of that twisting impaction incident, so it didn’t have that history of an acute symptomatic problem for her, so for me an acute labral tear wasn’t supported. I agree with Dr Reiter that the alternate diagnosis then could be a degenerative labral tear, which is often seen in arthritis generally speaking or constitutional arthritis. And again if that had been the case that it had been significantly aggravated at the time of the incident, we would normally expect then there to be some local symptoms as a result of the incident and not to present itself at least twelve and maybe eighteen months afterwards, but in terms of subjective symptoms. So because again the history was one of delayed reportage, sorry, reportage to me, that is I didn’t have any symptoms to 2016, there was no significant aggravation of any pre-existing labral pathology as a result of the work incident.
Dr Reiter: I totally agree with you about that, what you say. It’s about the temporal relationship. Totally. And it’s just with the different history I think we’ve been provided. But totally agree with your conclusion given the history you were given.
Dr Burrow: So it could well be, from my point of view, is that there was an aggravation of background pre-existing disease, including labral degeneration, but that’s not consistent with the history I was given. So I would conclude then there was no significant injury to the hip as a result of this fall where all the focus I think was on the shoulder or the arm.
Do you consider that the fall at work on 15 September 2014 contributed, to a significant degree, to the Applicant’s osteoarthritis in the hip?
Dr Reiter: No. I would not call it a significant degree. I would call it an aggravation, which to me is just a small…it contributes to the underlying pathology, therefore it’s an aggravation, but it’s not the sole cause and it was already pre-existing and age would be the main reason for most people with osteoarthritis.
Dr Burrow: I would agree with that interpretation of Dr Reiter’s. The contribution of about one-fifth that would be the absolute most. And again, my overall opinion would be probably no contribution or even considerably less than one-fifth based on the history I was given.
Counsel for Ms Aslimoska asked Dr Burrow to assume that her hip pain progressively developed in a labile manner to the point that by June 2015 (not 2016), she had developed a periodic limp, and queried whether that changed his opinion. Dr Burrow said if the assumption was that she had symptoms related to the fall, he would agree there had been a significant aggravation contributed to her current presentation of hip arthritis. If there were no symptoms until June 2015, when the incident was in September 2014, that again is ‘a very large gap’ between nothing and then Ms Aslimoska suddenly developing a limp. That would not be consistent with an aggravation at the time of the incident. On further questioning, Dr Burrow confirmed that if Ms Aslimoska had suffered pain between the fall and June 2015, that would change his opinion.
Counsel for Ms Aslimoska asked Dr Reiter whether it was common experience that a trauma can accelerate the onset or the symptomatic onset of arthritis. Dr Reiter agreed and said the common time periods between the trauma and the clinical manifestation of the acceleration was a period of days. Her understanding was Ms Aslimoska was taking over-the-counter anti-inflammatories for her mild groin pain which progressively became worse and developed into a limp. Dr Reiter said it was ‘a very big push’ to say that a trauma could give rise to clinical symptomatology a period of weeks after an accident and she would expect there to be symptomatology ‘much closer temporally related to the injury for that to be related to that specific injury’.
Dr Reiter confirmed her opinion that the trauma to the right hip could have by itself, that is separate to the labral tear, accelerated the symptoms because of the force through the hip joint shearing off a part of the cartilage which would lead to an acceleration of any arthritis, thus being an aggravation because it added to the pathology.
Counsel for Comcare asked the medical experts whether their respective opinions regarding diagnosis and causation are only as good as the history provided by a patient. Dr Reiter said she ‘totally agreed’ and Dr Burrow said he partly agreed, because if he had been provided with an MRI taken the day after the incident it would have been the most definitive diagnosis of the trauma, irrespective of what a patient told him.
Counsel for Comcare told the experts that Ms Aslimoska acknowledged under cross-examination that the first time she reported any symptomatology in respect of the right hip linking it to the fall occurred on 30 June 2016. Dr Reiter said this was inconsistent with the history provided to her by Ms Aslimoska, who had said she had experienced the onset of clinical symptoms to her right hip almost immediately after the fall. Dr Burrow also said Ms Aslimoska’s acknowledgment of the timing under cross-examination was different to that which she provided to him. In this regard, Dr Burrow agreed that he requested further documentation from Ms Aslimoska’s solicitors to ascertain whether she had made a clinical presentation of symptoms in relation to her right hip, because given she had not experienced the immediate and significant onset of pain it was not possible that the labral tear had been caused traumatically as a result of the fall.
Dr Reiter had not seen any other reports in relation to Ms Aslimoska, including those of Dr Burrow however, she agreed with Dr Burrow that if Ms Aslimoska had suffered a traumatic labral tear the pain would have been immediate, but not necessarily significant.

Counsel for Comcare asked Dr Reiter to assume that the Tribunal accepted that Ms Aslimoska first experienced symptoms in early 2015. Dr Reiter said this was ‘a very long time’ to correlate it to the injury in September 2014. Dr Reiter further said ‘it doesn’t correlate to the trauma she sustained, or she sustained an injury at that time in September’. Counsel for Comcare asked whether, in order to establish the pathology upon which Ms Aslimoska has been diagnosed, based on the history provided to Dr Reiter, her hip needed to come into contact with the tiled surface below. Dr Reiter said ‘the right hip cannot come into contact with the tiled surface, it’s anatomically not possible. But the greater trochanter [of the femur] could have come…I understood that she fell on her right side and put her right hand out so the greater trochanter which is the bone on the side of her hip, the upper part of her thigh, that’s what I understood she fell onto’. If the Tribunal finds Ms Aslimoska did not fall on her right hip, Dr Reiter agreed that her opinion would be that Ms Aslimoska could not have sustained an aggravation or acceleration to her right hip. Additionally, if the Tribunal finds that Ms Aslimoska did fall on her right hip and no symptomatology was experienced from the date of the fall on 12 September 2014 until early 2015, Dr Reiter was of the opinion that Ms Aslimoska could not have suffered an aggravation or acceleration of her underlying degenerative condition.
Counsel for Ms Aslimoska asked Dr Reiter to assume that she suffered labile or groin pain from the time of the accident until it became more pronounced in early 2015. Dr Reiter said this would make a difference to her opinion and Ms Aslimoska’s hip condition would have been contributed to, or aggravated by, the fall. Dr Burrow agreed with this opinion. However, this assumption was not supported by the evidence of Ms Aslimoska, who said her pain commenced from early 2015.
CONTENTIONS
Ms Aslimoska
Counsel for Ms Aslimoska at hearing said that there were two injuries, being the labrum tear and the arthritis in the right hip region and both were relied upon for the cause of, or the acceleration of, the arthritis in the hip. That is, the fall caused the labral tear that contributed to the acceleration of the arthritis in Ms Aslimoska’s hip. The evidence of Dr Reiter was relied upon by Ms Aslimoska in this regard. Alternatively, if the labral tear was not caused by the fall, that fall directly accelerated the arthritis in the hip. The evidence of Dr Krause was relied upon by Ms Aslimoska in this regard. Counsel said that Ms Aslimoska’s hip pain commenced before June 2015, identified by the development of an intermittent limp by that time.
Counsel acknowledged that the case likely turned on findings of fact by the Tribunal about the date of onset of the hip pain (which was also acknowledged to be critical to the experts’ views of Ms Aslimoska’s condition) but, if Ms Aslimoska was accepted as a witness of truth, then the onset date is sufficiently proximate to the fall to satisfy the causal test required for compensation to be payable under the SRC Act. Conversely, Counsel acknowledged that if Ms Aslimoska’s evidence was not accepted by the Tribunal, her claim could not succeed.
In her Statement of Facts, Issues and Contentions dated 27 June 2019, Ms Aslimoska acknowledged the ‘problem in this case is what to make [of] the time delay between the fall in September 2014 and the first onset of symptomatic arthritis’. The submissions further note that this ‘is complicated by the differing histories given by the Applicant concerning her first date of onset of the hip pain’. It was contended that these differences in the histories are ‘explicable on the basis of the elapse of time and memory’. In addition, it was noted that the issue of the date of the onset of Ms Aslimoska’s hip pain will be used to cast doubt on her credit as a reliable historian. Ms Aslimoska contended that the issue should be determined in her favour.
Ms Aslimoska submitted that she did not attend medical practitioners unless it was necessary. In this regard, she coped with her hip pain ‘from 2015 by self-medication until 30 May 2016’ when the pain had become severe.
It was contended that Ms Aslimoska suffered an ‘injury’ by way of an ‘aggravation’ under subsection 5A(1)(c) of the SRC Act. This occurs ‘when something associated with the work or workplace causes an existing condition to become worse or to become more painful’. Numerous authorities were cited regarding the aggravation of an underlying condition, including Mellor v Australian Postal Corporation (2009) FCA 504,[50] which stated that ‘[n]either the absence of change in the underlying condition nor the temporary nature of the symptoms experienced preclude the existence of an aggravation of an ailment for the purposes of the SRC Act’.[51]
[50] The other authorities referred to were: Australian Postal Corporation v Bessey (2001) FCA 266; Collins v Repatriation Commission (2009) FCAFC 90; Commonwealth Banking Corporation v Percival (1988) 20 FCR 176; Casarotto v Australian Postal Commission (1989) 17 ALD 321; Commonwealth v Beattie (1981) 53 FLR 191; MRCC v Katterns (2017) FCA 641; Re Comcare and Reardon (2015) AATA 1166; Re Anderson and APC (2016) AATA 228.
[51] Mellor v Australian Postal Corporation (2009) FCA 504 at [26], citing Federal Broom Company Pty Limited v Semlitch (1964) 110 CLR 626, Asioty v Canberra Abattoir Proprietary Limited (1989) 167 CLR 533 and Commonwealth of Australia v Beattie (1981) 35 ALR 369.
Ms Aslimoska also referred to Caldipp Pty Limited t/as Slaven Motors v Delov [2002] FCAFC 352, in which it was held that in the case of a pre-existing underlying disease, aggravation of it may be compensable if the pathology worsened so that incapacity results or the symptoms are exacerbated so as to result in incapacity for work.[52] It was also stated that there is no requirement that the aggravation made the underlying condition worse.[53]
[52] Caldipp Pty Limited t/as Slaven Motors v Delov [2002] FCAFC 352 at [78].
[53] ibid at [46].
It was further contended that whether or not Ms Aslimoska’s pre-injury asymptomatic arthritis would have progressed at any particular rate or ever become painful is speculative and irrelevant to the present matter. In this way, once it is established that the injury in 2014 caused an aggravation, liability is established.[54]
[54] Martin v Australian Postal Corporation (1999) FCA 655 at [23]-[28].
It was acknowledged by Ms Aslimoska that her fall was not the sole or dominant cause of the onset of the symptomatic arthritis. This required a determination of the degree of contribution required by the fall to establish liability under the SRC Act. It was submitted that the ‘arises out of test’ under section 5A of the SRC Act only requires a ‘material contribution’[55] from the employment; the work contribution does not have to be the sole, dominant or proximate cause,[56] meaning it can be one of multiple concurrent causes; it can be a minority cause; and it does not have to be the last link in the causal chain.
[55] Nunan v Cockatoo Docks and Engineering Co Pty Ltd (1941) 41 SR (NSW) at 124.
[56] Roncevich v Repatriation Commission (2005) 222 CLR 115.
In relation to materiality, the following passage was cited from Treloar v Australian Telecommunications Commission (1990) 97 ALR 321 at 328:
In our opinion, it follows from what is said and, indeed, from what is not said in these passages and from a consideration of the plain words that once it is established that an employee in the doing of his work was exposed to “a state of affairs to which he would otherwise not have been exposed” or to “some characteristic of or condition in which the work was to be performed” and that such exposure was in truth a “contributing” factor to the condition in respect of which he seeks compensation then it matters not whether the contribution was of any particular size or degree. The same applies, where the complaint is not one of initiation of the condition but of its aggravation, in the sense of making it worse, or its acceleration in the sense of speeding up the progress of a progressive disease. in all cases the question is whether there has been a “contribution”. Consistently with what was said by Windeyer J, “contribution” does not require that the contributing factor be a causa sine qua non; the “but for” test is not appropriate nor is the causa causans or “real effective cause” or “proximate cause” formulation. All that is required is that the relevant aspects of the employment add their measure to the creation of the condition, its aggravation or acceleration. They must, in truth, be part of the cause. If they are not, then, they do not “contribute”.
The use of the word “material” in conjunction with the words “contributing factor” in the legislation, where it has occurred in expositions of the section in other cases clearly is not intended to add to the section any significance which is not already to be found in the words used by the legislature. It has served only to emphasise that the section is not brought into play unless it be established by evidence that features of the employment did in fact and in truth contribute to the condition complained of. The causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established, however, it matters not that the contribution be large or small.
To this end, Ms Aslimoska submitted that the ‘material’ test in section 5A of the SRC Act is satisfied if there is any real level of contribution from her employment, ‘even if that level is small’. In this way, the employment contribution to an injury also does not have to be the sole or dominant contribution. As a result, it was contended that, because Dr Reiter put the employment contribution at twenty per cent for the aggravation of Ms Aslimoska’s asymptomatic arthritis to cause it to become symptomatic, this satisfies the ‘material’ test for an ‘injury’ under section 5A of the SRC Act.
In relation to the legislative requirement that for a ‘disease’ to be established under section 5B of the SRC Act, the contribution from employment must be a ‘significant degree’. Ms Aslimoska contended that this did not mandate the imposition of ‘a test that connotes a “dominant” cause (i.e. more than 50%)’. As a result, ‘significant degree’ was said to effectively exclude those causes where the employment contribution was at a point somewhere below twenty per cent. Accordingly, if the Tribunal found that Ms Aslimoska’s fall at work contributed to the aggravation of her asymptomatic arthritis, even if only to the extent of twenty per cent, it would satisfy the legislative requirements under the SRC Act and cause Comcare to be liable to pay compensation for her condition. Ms Aslimoska therefore contended that the tests for both an ‘injury’ and a ‘disease’ were satisfied in accordance with the SRC Act.
Comcare
In its Statement of Issues, Facts and Contentions dated 23 April 2019, Comcare contended that Ms Aslimoska did not injure her right hip when she fell at work in September 2014, but rather suffered a minor right upper limb injury. In this regard, Comcare pointed to there being no contemporaneous evidence of any hip injury being sustained in the fall. At the hearing, Counsel for Comcare said there was no mention at all in Ms Aslimoska’s contemporaneous Injury and Incident Report of her right hip making contact with the floor; it was only limited to her ‘right arm (elbow and shoulder)’. Comcare submitted that Ms Aslimoska’s right hip was not painful until many months after the fall and she did not attribute her hip problems to the fall until her general practitioner asked her in mid-2016 if she had ever fallen on her right hip. Comcare said that the fall in 2014 was quite obviously a minor one and resulted in no hip injury.
The first recording of any problem with the right hip occurred on 30 May 2016 by Ms Aslimoska’s general practitioner. Additionally, it was not until the report of Dr Burns, Orthopaedic Surgeon, in November 2017 that it is recorded that Ms Aslimoska’s right hip was said to have made contact with the floor when she fell in 2014. As a result, Comcare argued that the evidence indicated that Ms Aslimoska’s hip was not in pain after the fall, which is consistent with her having not suffered an injury.
Comcare also relied on the reports of Dr Burrow from August and December 2018, in which he opined that Ms Aslimoska’s labral tear in the right hip could not have been traumatically occasioned because at that stage she did not report any symptoms consistent with immediate and significant pain. The balance of the medical evidence was said to support that proposition and, if accepted, it would be catastrophic to Ms Aslimoska being able to establish that she suffered the claimed ‘injury’ under section 5A of the SRC Act.
Therefore, Counsel for Comcare said the Tribunal should focus on whether Ms Aslimoska suffered a ‘disease’ under section 5B of the SRC Act. Comcare did not dispute that Ms Aslimoska has a disease, being her osteoarthritis in the right hip. However, Comcare said the relevant question was whether or not Ms Aslimoska’s evidence is accepted that she had any symptomatology at all before she attended upon her general practitioner in May 2016; and whether Ms Aslimoska’s multiple histories regarding her fall can establish on the balance of probabilities that she hit the tiled floor in the manner in which many years after that fall she now contended. That was said to necessarily rise and fall with aspects of Ms Aslimoska’s credibility and the reliability of her evidence. Finally, even if the Tribunal is satisfied on the balance of probabilities that there is a disease, there is a real question, based on Ms Aslimoska’s significant and longstanding degenerative osteoarthritis of the hip, whether her employment contributed to a significant degree to that disease. Comcare submitted that it did not. Comcare contended that Ms Aslimoska’s hip condition is the result of underlying arthritis and degenerative changes which have no relationship to her fall in September 2014.
Comcare submitted that the medical evidence of Dr Burrow should be preferred; the history is inconsistent with a hip injury in the fall, whether by way of aggravation of the underlying arthritis or in relation to the labral tear. Comcare argued that Dr Reiter’s opinion is less reliable because she obtained a history from Ms Aslimoska that contradicts the contemporaneous evidence regarding where she landed after her fall. Regardless, Comcare contended, the Tribunal cannot accept Dr Reiter’s suggestion that there was a labral tear because she suggested that the injury was a possibility not a probability. In relation to Dr Krause’s evidence, Comcare said his opinion is reliable to the extent that he concludes that the long timeframe between the fall and the symptoms is inconsistent with any injury in the fall.
CONSIDERATION
Ms Aslimoska’s credibility
Ms Aslimoska’s claim for compensation for an injury to her right hip under section 14 of the SRC Act centres on her account of both the fall she suffered at the Department of Health on 12 September 2014 and the timing of the onset of symptoms following that incident. The outcome of Ms Aslimoska’s claim is therefore dependent upon findings of fact by the Tribunal, including its view of her credibility and the reliability of her evidence regarding these issues. After careful consideration of the evidence before it, the Tribunal is not satisfied that Ms Aslimoska was a witness of credit. Essentially, this is because Ms Aslimoska over the five years since her fall provided multiple varying accounts of both the incident and the onset of pain in her right hip. Ms Aslimoska’s evidence before the Tribunal was another variation of the inconsistent histories she has provided to her employer, Comcare and multiple medical professionals. Accordingly, the Tribunal is not satisfied about the reliability of Ms Aslimoska’s evidence given the multiple different histories she has provided about the fall itself and the onset of her symptomatology. Although Ms Aslimoska did not appear to be deliberately evasive in her evidence before the Tribunal, and allowing for the effluxion of time, the Tribunal does not accept her recollection of events as described to the Tribunal due to these various inconsistent accounts, which made her a fundamentally unreliable witness. In this regard, the Tribunal favours the contemporaneous documentation of the fall, the Injury and Incident Report, where Ms Aslimoska did not mention falling on her right hip or it being in pain. The latter only occurred, on the evidence of Ms Aslimoska to the Tribunal, in early 2015. Based on the medical evidence, given the delay in symptomatology from the time of the fall, the Tribunal is not satisfied that it is the reason for her right hip condition or any aggravation of that condition.
Ms Aslimoska completed and submitted an Injury and Incident Report on 15 September 2015, three days after her fall.[57] Under cross-examination, Ms Aslimoska confirmed that she understood the importance of this document. Ms Aslimoska also acknowledged that the incident needed to be accurately and comprehensively recorded so that it was documented for any future workers’ compensation claim and for the future safety of other employees. The Injury and Incident Report Ms Aslimoska completed said she landed on her ‘right arm (elbow and shoulder)’; it did not refer to Ms Aslimoska falling on either her right hip or the right side of her body. The Report also did not refer to any pain in Ms Aslimoska’s right hip or groin as a result of the fall. Under cross-examination, Ms Aslimoska could not recall what elements of the Report she had completed and which had been pre-populated by her employer, however she did recall completing the section describing the incident and injury. In relation to that section of the Report, Ms Aslimoska said it was a ‘rushed explanation’, she included ‘a small bit of information’ and she did not expand on ‘every detail’, but could not provide any other explanation for omitting her claimed fall onto her right hip. However, Ms Aslimoska agreed there was no time pressure and she had adequate space in that section to describe the events. Ms Aslimoska also said it was ‘at the time all I could produce’. In this regard, the Tribunal finds that Ms Aslimoska did not state in the Incident and Injury Report that she landed on her right hip because it did not occur. The Tribunal is satisfied that if Ms Aslimoska had fallen or landed on her right hip, she would have said so in the Injury and Incident Report.
[57] Exhibit 1, T3, pages 7-9.
In May 2016, twenty months after her fall, Ms Aslimoska first saw a medical practitioner regarding right hip pain.[58] Ms Aslimoska’s general practitioner recorded that her hip pain ‘has worsened since she put on a little weight’, however under cross-examination Ms Aslimoska contradicted this previous account she had provided to her general practitioner and said the pain ‘started playing up’ prior to her weight changing.
[58] Exhibit 2, ST2, page 2.
At or around the time of a subsequent consultation with her general practitioner ten months later in March 2017, Ms Aslimoska’s right hip pain was first linked to her workplace fall in 2014. A referral letter from Ms Aslimoska’s general practitioner to an orthopaedic surgeon on 16 March 2017 recorded that she ‘sustained a heavy fall at work onto her right hip’.[59] This account of the fall provided by Ms Aslimoska to her general practitioner is inconsistent with what she provided in her Injury and Incident Report in September 2014. In the former, Ms Aslimoska claimed to have fallen onto her right hip, but in the latter she said it was onto her right arm.
[59] Exhibit 1, T4, page 10.

A different account was again provided by Ms Aslimoska in the Claim Form submitted in June 2017. In that Claim Form she did not refer to the fall being onto either her right arm or her right hip as she had previously; it said she ‘landed on her right side’.[60] Ms Aslimoska said under cross-examination that, as with the Injury and Incident Report, she did not ‘spend a lot of time’ completing the Claim Form, although she understood its importance and agreed it was for the purpose of seeking compensation for her right hip condition. In the Claim Form, Ms Aslimoska said she first noticed her ‘symptoms/injury’ at the time of the fall on 12 September 2014. This timing of the onset of symptoms was inconsistent with the Injury and Incident Report submitted three days after the fall, where Ms Aslimoska did not refer to any symptoms or injury to her hip. Under cross-examination, Ms Aslimoska said she first noticed symptoms in early 2015, not immediately after the fall.
[60] Exhibit 1, T5, page 15.
In a history recorded from Ms Aslimoska on or around 16 November 2017, Dr Alexander Burns, Orthopaedic Surgeon, noted that she ‘landed on her shoulder and right hip’.[61] Again, this was a different account of the accident. Dr Burns also recorded that ‘it wasn’t initially painful but over time it has become more painful’. However, when Ms Aslimoska requested reconsideration of Comcare’s determination later that month on 29 November 2017, her accompanying response to Comcare’s findings stated that, ‘I have been treating my hip since the date of injury’.[62]
[61] Exhibit 2, ST8, page 8.
[62] Exhibit 1, T21.1 page 73.
Almost four years after Ms Aslimoska’s fall, in her Witness Statement of August 2018, she said that ‘[m]y right shoulder and right elbow collided with the tiles, but my right hip also hit the tiles as I recall there was a loud slap from my right hip’.[63] This again was a different account of the incident. Ms Aslimoska also said at the time of the fall she ‘may not have noticed that there was pain in the hip…I did not notice immediate pain in my hip’, but ‘from about early 2015 onwards, I started to notice pain in my right hip’. Under cross-examination, Ms Aslimoska said her Witness Statement was ‘a more elaborate explanation’ of the fall, following a ‘shortened version’ of it provided in her Injury and Incident Report which, as noted above, did not mention any fall onto her right hip. In this regard, the Tribunal considers Ms Aslimoska’s Witness Statement to be more embellishment than elaboration of her contemporaneous Injury and Incident Report.
[63] Exhibit A1, page 1.
When Ms Aslimoska attended on Dr Reiter in July 2018, her account of the incident was that ‘[h]er right foot slipped out from under her, with her then falling onto her right lateral hip area, followed by her right upper body’.[64] Ms Aslimoska also told Dr Reiter that ‘[a]fter this incident, she noted the gradual onset of mild discomfort that would occur intermittently in her right groin’. Additionally, in her evidence before the Tribunal, Dr Reiter said Ms Aslimoska had told her that she first suffered pain in her hip ‘almost immediately after in the days pursuant’ to the fall. This history was inconsistent with previous accounts Ms Aslimoska provided regarding symptomatology and onset.
[64] Exhibit 2, ST9, page 10.
In August 2018, Ms Aslimoska attended on Dr Burrow and told him that she ‘fell onto her right side’.[65] Dr Burrow confirmed with Ms Aslimoska that ‘she did not experience right hip pain straight away’, being a different account to that provided to Dr Reiter. Dr Burrow also recorded that Ms Aslimoska had ‘increasing right hip pain from about March 2016’. Although the year was said by Counsel for Ms Aslimoska to be 2015, not 2016, there was no evidence suggesting the history taken from Ms Aslimoska by Dr Burrow was incorrectly recorded, including there being no reference to a specific year or time period for the onset of symptoms in the briefing letter from Ms Aslimoska’s solicitors to Dr Burrow for the purpose of his consultation with her.[66] Additionally, Dr Burrow confirmed to the Tribunal this date was provided by Ms Aslimoska. The Tribunal is therefore satisfied that this was another different account of the timing of the onset of symptoms provided by Ms Aslimoska.
[65] Exhibit 2, ST10, page 20.
[66] Exhibit 2, ST10.1, pages 26-28.
When Ms Aslimoska attended on Dr Krause in October 2018, she told him that she ‘fell striking her shoulder on the ground but landing on the right side on the floor’.[67] Ms Aslimoska’s history is recorded as not having any pain in the hip at the time of the fall until nine months later in June 2015. Ms Aslimoska’s account to Dr Krause of the fall at her workplace and the timing of the onset of symptoms in relation to her hip condition is also inconsistent with other accounts.
[67] Exhibit 2, ST12, page 36.
In summary, the reporting to the medical experts for the purposes of this proceeding by Ms Aslimoska regarding her fall and symptomatology was inconsistent between all three of them. Dr Reiter told the Tribunal that a patient’s history is critical to a doctor formulating a diagnosis and prognosis. Dr Burrow said it was in part what motivated a doctor to turn his or her mind to a particular causal question; the other being contemporaneous medical documentation, such as an MRI of the relevant region of the body the subject of the claimed injury. In this regard, Ms Aslimoska did not tell Dr Burrow, unlike Dr Reiter, that she had any immediate onset of pain in her right hip following the fall. Dr Burrow in his supplementary report of December 2018 said there could not have been a traumatic labral tear to the right hip because there would have been immediate and significant onset of pain. Ms Aslimoska, on her own evidence to the Tribunal, did not experience such pain at the time of her fall.
At various times under cross-examination, Ms Aslimoska said that: she fell on her right side and heard a slap; her complete right side hit the floor; and her right shoulder and elbow are ‘unable to come into contact with the floor without my right hip being there’. Ms Aslimoska also told the Tribunal that her hip pain started in early 2015.
In addition to the above inconsistencies between various accounts provided by Ms Aslimoska over five years regarding her fall at work and the onset of symptoms in her right hip, the Tribunal notes that she also provided the medical experts with differing versions of what daily activities she was capable of undertaking as a result of her hip condition, noting that she was not examined on these matters at the hearing. For example, it was recorded by Dr Reiter in July 2018 that Ms Aslimoska said that her condition ‘does not limit her in her activities of daily living…She readily exercises four to five days per week at the gym on a stationary bike, doing 30-40 minutes and, she also does Plyometrics’.[68] However, Ms Aslimoska told Dr Burrow one month later in August 2018 that since her fall ‘she has had difficulty performing some home chores…has been unable to return to soccer since the work incident and can manage gym and spin only several times a week now days, and to lesser intensity’.[69] In relation to playing competitive soccer, and contrary to what she told Dr Burrow, Ms Aslimoska told the Tribunal that she did not cease playing soccer due to her right hip condition.
[68] Exhibit 2, ST9, page 11.
[69] Exhibit 2, ST10, page 22.
Ms Aslimoska acknowledged at the hearing that she did not have a perfect memory and the Tribunal understands that, given the passage of time, almost no one could be held to that standard. However, Ms Aslimoska has provided multiple histories over the last five years regarding the fall itself and the onset of symptoms in her right hip. The contemporaneous documentation provided by Ms Aslimoska to her employer detailing her fall in 2014 did not refer to her right hip at all, including landing on her right hip or the experiencing of any pain in that hip as a result of the fall.
The Tribunal is not satisfied, based on the lack of credibility of Ms Aslimoska’s evidence, and the contemporaneous documentation following her workplace fall that, as a result of that fall in September 2014, Ms Aslimoska’s right hip came into contact with the tiled bathroom floor. The Tribunal finds that Ms Aslimoska landed on her right arm when she fell, as set out in her Injury and Incident Report completed three days after the accident. The Tribunal also notes that Dr Reiter under cross-examination said that ‘the right hip cannot come into contact with the tiled surface, it’s anatomically not possible’.
Additionally, the Tribunal is not satisfied, based on Ms Aslimoska’s lack of reliability as a historian and the various accounts she has provided, that Ms Aslimoska experienced any pain in her right hip immediately after the fall and before early 2015. The latter date is the time Ms Aslimoska told the Tribunal that the pain commenced, but her accounts to others gave both earlier and later dates, including informing Dr Reiter the pain occurred almost immediately.
Whether Ms Aslimoska suffered an ‘injury’ or ‘disease’ pursuant to the SRC Act
As a result of the Tribunal’s finding that Ms Aslimoska did not fall on her right hip in the workplace incident in 2014, and based on the balance of the medical evidence, there is no mechanism giving rise to Ms Aslimoska suffering either an ‘injury’, or an ‘aggravation’ of an injury, pursuant to section 5A of the SRC Act. Given the Tribunal has found that there is no mechanism giving rise to an injury, the Tribunal is not required to consider whether such an injury arose out, of or in the course of, Ms Aslimoska’s employment under section 5A of the SRC Act.
The Tribunal turns to consider whether Ms Aslimoska suffered a disease in accordance with the SRC Act. Pursuant to section 5B of the SRC Act, a ‘disease’ is an ailment suffered by an employee, or an aggravation of such an ailment, that was contributed to, to a significant degree, by a the employee’s employment.
It was not in dispute between the parties that Ms Aslimoska has osteoarthritis of her right hip and therefore suffers an ‘ailment’ as defined in section 4 of the SRC Act. At issue was whether Ms Aslimoska’s workplace fall caused an aggravation of her condition and the level of contribution, if any, from her employment. The evidence of Dr Burrow went against Ms Aslimoska, based on the history provided by her, that there was no immediate and significant onset of pain in or around her right hip following the fall. Accordingly, Dr Burrow considered that Ms Aslimoska’s workplace fall did not cause an aggravation of her ailment. Dr Burrow’s evidence was that if the fall had caused a labral tear in Ms Aslimoska’s right hip, she would have experienced immediate symptoms in that region; she did not, indicating there was no labral tear at the time of the fall. The Tribunal accepts the evidence of Dr Burrow.
As detailed above, Dr Reiter was provided by Ms Aslimoska with a different history to that which she provided Dr Burrow. In evidence before the Tribunal, Dr Reiter said Ms Aslimoska advised her that the onset of pain was immediate. This was inconsistent with Ms Aslimoska’s evidence before the Tribunal and other accounts provided at various stages since her fall in 2014. As a result of this inconsistent history, and following the evidence of Dr Burrow, the Tribunal does not accept, as Dr Reiter opined in her written report (based on Ms Aslimoska’s incorrect account of there being immediate pain), that the fall ‘most likely caused an aggravation of a pre-existing condition’ and, although ‘very difficult to determine’, there was a contribution of up to twenty per cent to Ms Aslimoska’s right hip condition from Ms Aslimoska’s fall at work.[70] In this regard, when Dr Reiter became aware at the hearing of the inconsistent histories provided to her and Dr Burrow she said she was in total agreement with Dr Burrow’s assessment that Ms Aslimoska ‘suffered no significant injury as a result of the incident to her right hip’; and if ‘it had been significantly aggravated at the time of the incident, we would normally expect then there to be some local symptoms as a result of the incident’.
[70] Exhibit 2, ST9, page 13.
Furthermore, in her oral testimony Dr Reiter agreed with Dr Burrow that if Ms Aslimoska’s osteoarthritis had been aggravated by her workplace fall the onset of symptoms would be almost immediate, possibly within days, and the onset of symptoms weeks afterwards would be ‘a very big push’; she would expect there to be symptomatology ‘much closer temporally’ to the incident than that now propounded by Ms Aslimoska. Moreover, Dr Reiter agreed that Ms Aslimoska could not have suffered an aggravation to the osteoarthritis in her right hip if it was found by the Tribunal that she did not fall onto her hip. Additionally, Dr Reiter said even if Ms Aslimoska did fall on her right hip in September 2014, the fall could not have aggravated the osteoarthritis because Ms Aslimoska experienced no symptomatology until months later. Taking Dr Reiter’s analysis to its logical conclusion, the Tribunal is not satisfied that the onset of Ms Aslimoska’s right hip pain accepted as having occurred in early 2015, more than three months after the fall, was related to that incident.
While Dr Krause was not called by either party, submissions were made in relation to his report before the Tribunal.[71] As detailed above, Ms Aslimoska provided Dr Krause with a different account of her symptomatology. Ms Aslimoska informed him that, ‘by June 2015’, that is, from that time, she noticed ‘some discomfort in her right groin’. The Tribunal does not accept Counsel for Ms Aslimoska’s contention that the wording ‘by June 2015’ suggests that this discomfort occurred gradually from some time after the fall and before June 2015, which became progressively worse by June 2015.
[71] Exhibit 2, ST12, page 36.
Dr Krause agreed that Ms Aslimoska suffers osteoarthritis in her right hip, but did not accept that the labral tear was caused as a result of her fall. Dr Krause said there is a possibility that there was an aggravation of pre-existing changes. However, Dr Reiter and Dr Burrow’s evidence before the Tribunal regarding the probability of there being an aggravation of Ms Aslimoska’s osteoarthritis as a result of the fall was that the two could not be linked in circumstances where Ms Aslimoska experienced no symptomatology from the time of the fall on 12 September 2014 until at least early 2015. The Tribunal confirms its acceptance of the evidence from Dr Reiter and Dr Burrow. As a result of all of the above, the Tribunal is not satisfied that Ms Aslimoska suffers from a disease in accordance with section 5B of the SRC Act. That is, Ms Aslimoska did not suffer an aggravation of her ailment due to her workplace fall in 2014.
For completeness, the Tribunal notes that, in relation to the interpretation of whether such a disease was ‘contributed to, to a significant degree’ by Ms Aslimoska’s employment pursuant to section 5B of the SRC Act, Counsel for the Respondent referred to the recent Tribunal decision of Kropp and Comcare [2019] AATA 4078, where it was said at [91] to [93] that:
For the Applicant’s ‘ailment’ to be a ‘disease’ as defined in s 5B(1) of the SRC Act, it must have been contributed to, to a significant degree, by the Applicant’s employment with the AFP.
As Mortimer J noted in Comcare v Reardon [2015] FCA 1166 at [75] ‘... the question of causation, contribution or aggravation by employment for the purposes of the definition of ‘disease’ is ... a determination for the merits reviewer on the evidence and material before it’.
In Power,[72] Katzmann J discussed the meaning of ‘to a significant degree’ in s 5B(2) of the SRC Act, which is defined in s 5B(3) of the SRC Act as ‘a degree that is substantially more than material’. Her Honour stated, ‘[a] contribution to a degree that is substantially more than material must necessarily be substantially greater than one which is trivial’, at [78] and further that, ‘... a material contribution is one which is greater than minimal or, one might say, trivial’ at [82].
[72] Comcare v Power [2015] FCA 1502.
The best evidence available to Ms Aslimoska regarding the potential contribution of her employment was the report of Dr Reiter who posited that it was ‘possibly 20%’, but also said this ‘is very difficult to determine’.[73] In her evidence before the Tribunal, Dr Reiter said, in relation to the question of whether the fall contributed to a significant degree to Ms Aslimoska’s osteoarthritis in the hip: ‘No. I would not call it a significant degree’. In response to the same question, Dr Burrow said: ‘The contribution of about one-fifth that would be the absolute most…my overall opinion would be probably no contribution or even considerably less than one-fifth based on the history I was given’. Given the history provided by Ms Aslimoska to Dr Reiter, relied upon in the latter’s expert report, which contradicted Ms Aslimoska’s subsequent evidence to the Tribunal regarding the timing of the onset of her symptoms, the uncertainty about Dr Reiter’s percentage of attribution from employment is increased and accordingly the evidence of Dr Burrow is preferred and accepted by the Tribunal. For the avoidance of doubt, and in light of the Tribunal’s earlier finding that Ms Aslimoska did not suffer a disease in accordance with section 5B of the SRC Act, the Tribunal is accordingly satisfied that her employment made no contribution.
[73] Exhibit 2, ST9, page 13.
DECISION
For the above reasons, the Tribunal is not satisfied that Ms Aslimoska suffered an injury to her right hip when she fell at work in 2014. Therefore, Comcare is not liable to pay compensation to Ms Aslimoska under section 14 of the SRC Act.
The decision under review is affirmed pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975.

I certify that the preceding 116 (one-hundred and sixteen) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.

........................................................................
Associate
Dated: 30 January 2020

Date(s) of hearing: 18 November 2019

Date final submissions received: 27 June 2019

Counsel for Applicant: Mr Alan Anforth

Solicitors for Applicant: Mr David Chen, Capital Lawyers

Counsel for Respondent:
Mr Jason Moffett

Solicitors for Respondent: Mr Andrew Schofield, Comcare

Date(s) of hearing:	18 November 2019
Date final submissions received:	27 June 2019
Counsel for Applicant:	Mr Alan Anforth
Solicitors for Applicant:	Mr David Chen, Capital Lawyers
Counsel for Respondent:	Mr Jason Moffett
Solicitors for Respondent:	Mr Andrew Schofield, Comcare