Campion and Comcare (Compensation) - [2021] AATA 4310

Campion and Comcare (Compensation) [2021] AATA 4310 (19 November 2021)
Division:GENERAL DIVISION
File Number(s): 2019/2758, 2019/2759, 2020/3361, 2020/7585
Re:Michael Campion
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President J Sosso
Date:19 November 2021
Place:Brisbane

The Tribunal determines that:
(a)the reviewable decision of 26 April 2019 (2019/2758) is affirmed;
(b)the reviewable decision of 26 April 2019 (2019/2759) is affirmed;
(c)the reviewable decision of 29 May 2020 (2020/3361) is set aside insofar as liability pursuant to s 14 is accepted, and in lieu a decision rejecting liability is substituted, and affirmed insofar as liability pursuant to s 14 is rejected; and
(d)the reviewable decision of 2 September 2020 (2020/7585) is affirmed.

..............................[SGD]........................

Deputy President J Sosso
Catchwords
COMPENSATION – whether applicant continues to suffer effects of injury or aggravation – whether employment contributed or continues to contribute to ailment – whether respondent liable to pay compensation – Aggravation of osteoarthritis – knee – ankle or foot – small tear of the posterior horn of the medial meniscus – aggravation of injury – rupture of Baker’s cyst – decision affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth)
Cases
Australian Postal Corporation v Bessey (2001) 32 AAR 508
Canute v Comcare (2006) 226 CLR 535
Comcare v Power (2015) 238 FCR 187
Comcare v Reardon [2015] FCA 1166 148; ALD 356
Comcare v Sahu-Khan [2007] FCA 15; 156 FCR 536
Comcare v Stefaniak [2020] FCA 560
Commonwealth Banking Corporation v Percival (1988) 20 FCR 176
Commonwealth v Beattie (1981) 53 FLR 191
Federal Broom Company Pty Limited v Semlitch (1964) 110 CLR 626
Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253
Howes v Comcare [2016] FCA 1521
Lees v Comcare [1999] FCA 753
Mellor v Australian Postal Corporation (2009) 108 ALD 159
Military Rehabilitation and Compensation Commission v Katterns [2017] FCA 641; 156 ALD 584
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537
Prain v Comcare (2017) 256 FCR 65
Renouf and Comcare [2004] AATA 525
Tippett v Australian Postal Corporation (1998) 27 AAR 40
Trustees Executors & Agency Co Ltd v Reilly [1941] VLR 110
Woodhouse v Comcare [2021] FCAFC 95
REASONS FOR DECISION
Deputy President J Sosso
19 November 2021
INTRODUCTION

Mr Michael Campion (the Applicant) seeks review of the following determinations of Comcare in relation to claims made under the Safety, Rehabilitation and Compensation Act 1988 (the Act):
(a)the initial reviewable decision of Comcare was a reconsideration of two previous determinations of 12 February 2019 and was made on 26 April 2019. The Review Officer affirmed the two previous determinations – Exhibit 1 T72 pp. 324 – 328. The two earlier determinations are referred to below
(b)2019/2758 relates to a determination by Comcare on 12 February 2019 that there was no present liability for medical expenses under s 16 in relation to the Applicant’s accepted conditions of “aggravation of osteoarthritis – localised knee (right)” sustained on 19 July 2013 and “aggravation of osteoarthritis – localised – ankle or foot (left)” with a deemed date of injury of 5 September 2014 – Exhibit 1 T60 pp. 291 - 293;
(c)2019/2759 relates to a determination by Comcare on 12 February 2019 that there was no present liability for medical expenses under s 16 or incapacity payments under s 19(2) in relation to the accepted condition of “small tear of the posterior horn of the medial meniscus (right knee)” with a date of injury of 16 May 2017 – Exhibit 1 T61 pp.294 – 296;
(d)2020/3361 relates to a reconsideration determination of Comcare of 29 May 2020 which affirmed a determination of 31 July 2019 to decline liability under s 14 for the Applicant’s claimed “aggravation of right knee osteoarthritis.” The initial determination accepted liability for aggravation of right medial meniscus tear and rupture of right knee Baker’s cyst, and this determination was affirmed on reconsideration – Exhibit 2 T33 pp. 96 – 100; and
(e)2020/7585 relates to a reconsideration determination by Comcare of 2 September 2020 which affirmed a determination of 31 July 2019 to decline liability under s 14 for the Applicant’s “aggravation of right knee injury” – Exhibit 3 T20 pp. 68 – 74.
The Applicant was at all material times an employee of the Australian Communications and Media Authority (ACMA) and performed administrative duties in his capacity as an Assistant Manager – Exhibit 1 T5 pp. 30, 37.
At approximately 3:20 pm on 19 July 2013 the Applicant attended an onsite meeting with contractors at Capalaba for the purpose of fixing an extensive water leak. While walking around the site, which was covered with long grass, the Applicant stepped into a small hole and jarred his right knee – Exhibit 1 T4 p. 23. He immediately experienced pain and swelling, and the following day was seen by Dr Paul Angel who referred him to a physiotherapist (Mr Mitch Hamer) and Dr Amanda Reilly (Orthopaedic Surgeon) – Exhibit 1 T9 p. 50.
At the time of the accident the Applicant weighed approximately 129 kg, and by 24 January 2014 his weight was still 127 kg – Exhibit 1 T9 p. 52.
The Applicant completed an Incident Report on 22 July 2013 setting out relevant details of the accident, which Report was duly noted by his Manager and an officer of ACMA People Services on the same day – Exhibit 1 T4 pp. 22 – 25.
On 25 July 2013 the Applicant submitted a Claim for Workers’ Compensation for damage to his right knee – Exhibit 1 T5 pp. 26 – 40.
An MRI was performed on the Applicant’s right knee on 26 July 2013 by Dr Mark Burgin. In his report of that date Dr Burgin made the following observations – Exhibit 1 T6 p. 41:
“There is advanced degenerative joint disease particularly at the medial and patellofemoral compartments where there are extensive areas of full thickness cartilage loss with irregularity of the subchondral bone plate, sclerosis and subchondral oedema…
On a background of degenerative joint disease, quite severe at the medial and patellofemoral compartments, there is extensive marrow oedema in the medial tibial condyle with adjacent soft tissue oedema. Incomplete linear signal void associated with depression of the joint surface anteromedially suggests a quite focal and probably incomplete insufficiency or stress fracture.”
On 21 August 2013 Comcare accepted, pursuant to s 14, liability for:
(a)fracture of patella (right); and
(b)sprain of other specified sites of knee and leg (right) (bone bruising – knee) – Exhibit 1 T7 pp. 42 ‑‑ 48.
Liability was also accepted for:
(a)reasonable medical treatment claims up to and including 13 September 2013; and
(b)time off work claims resulting from the accepted injuries up to and including 16 August 2013.
On 8 April 2014 Mr Hamer provided the following report on the Applicant’s progress since the 19 July 2013 accident – Exhibit 1 T10 p. 54:
“I reviewed Michael’s progress of his R knee injury today. Michael is progressing well with treatment and overall his pain and gait is improving. He is attending the gym regularly for strengthening and rehabilitation.
I feel that he would benefit from a knee support, to provide compression to his knee and confidence when walking. The brace will provide support, but not limit his range of motion.”
Dr Reilly examined the Applicant in May 2014, and in a report dated 8 May 2014 made these observations – Exhibit 1 T11 p. 55:
“Thanks for sending Michael back to see me with an exacerbation of his right knee pain. The problem with Michael is that he has sever (sic) pre-existing arthritis and he’s also overweight which doesn’t help things. It is difficult to determine what now is related to his insufficiency/stress fracture or what is now arthritic. The only way to determine this is by MRI. If the stress fracture has healed then realistically it is not a work related injury anymore…”
At the request of Dr Reilly, an MRI was performed by Dr David Simpson on 9 May 2014. Dr Simpson made the following findings – Exhibit 1 T12 p. 56:
“The previously demonstrated subchondral linear hypointensity involving the medial aspect of the medial tibial condyle is no longer evident. There has also been considerable reduction in the extent of the marrow oedema within the medial tibial condyle. Appearances therefore would be in keeping with interval healing of the previously demonstrated subchondral insufficiency fracture. There is mild residual medial downsloping to the medial rim of the medial tibial plateau, similar to previous.
Quite marked medial compartment degenerative changes are again noted with chondral thinning down to the subchondral bone in places involving the medial femoral condyle and medial tibial plateau. There is associated patchy subchondral oedema on either side of the medial compartment consistent with degenerative change…”
Dr Reilly saw the Applicant with the above MRI findings on 13 May 2014. In a report of the same date, Dr Reilly made the following observations – Exhibit 1 T13 p. 58:
“I’ve seen Michael today with his MRI scan which shows that his bony oedema and stress fracture have completely resolved. He’s now left with his patellofemoral and medial compartment osteoarthritis which is not work related….”
Dr Reilly’s diagnosis was mirrored by Dr John Doneley, Consultant Orthopaedic Surgeon, who assessed the Applicant on 30 July 2014. In his extensive report of 11 August 2014, Dr Doneley made the following findings – Exhibit 1 T14 p. 64:
“Recent MRI examination has shown that these two injuries have resolved. The marked degenerative change of the medial compartment and patellofemoral joint of the right knee is noted to be enduring.
I believe that Mr Campion’s current symptoms are related to the underlying degenerative process occurring within the knee. As such I believe them to be an exacerbation of a pre-existing condition.
I consider that the stand-alone conditions/injuries incurred on 19 July 2013 (subchondral fracture of the right medial tibial plateau and bone bruising of the right tibial condyle) have now resolved at this time as evidenced by his MRI scan on 9 May 2014.”
Dr Doneley referred to two injuries. Apart from the 19 July 2013 injury, the Applicant also injured his right knee when he was 18 years of age while playing basketball. The Applicant informed Dr Doneley that he had an open medial arthrotomy procedure and had removal of possible loose body from the knee – Exhibit 1 T14 p. 62.
In response to a Question as to what factors unrelated to work had relevance to the Application’s condition in 2014, Dr Doneley made the following observations – Exhibit 1 T14 p. 66:
“Mr Campion has a long history of injury to the right knee. He first had surgery of the right knee at the age of 18 years. I am unsure of the exact nature of the surgery performed at the age of 18 however his surgical scar would be consistent with either a partial medial meniscal resection or removal of a loose body.
Either of these injuries occurring as an acute knee injury in an 18-year old would portend a poor prognosis in the long term for the right knee with regards to future degenerative change and development of osteoarthritis.
I believe that Mr Campion first became symptomatic with his right knee degenerative change three to four years ago when he had an episode of pain that required steroid/local anaesthetic injection.
Although Mr Campion has exacerbated significantly the symptoms of his degenerative right knee when he injured his knee at work on 19 July 2013, I believe that this condition was already well established at this time.”
On 14 October 2014 the Applicant lodged an Incident Report in relation to his left foot – Exhibit 1 T16 pp. 70 – 73. The Applicant provided the following details of this incident – Exhibit 1 T16 p. 71:
“The symptoms first appeared approximately 6 months after my original Right Knee Accident which is currently a comcare claim number 1076123-4. Because I have had to carry a lot of my weight on my left foot due to the knee injury on my right leg it has slowly caused me increasing pain to my left foot and ankle. This is exasperated (sic) due to an injury almost a decade previously which involved a broken left foot and bone grafts from my hip into that foot.”
The Applicant underwent an MRI (Exhibit 1 T15 p. 69) and attended at his Physiotherapist, Mr Nick Schuster. In a short report of 20 October 2014, Mr Schuster provided the following information to Comcare – Exhibit 1 T17 p. 74:
“He first reported the L ankle and foot pain to me on 5^th September 2014. Due to the fact he is not taking full weight on his R knee and walks with one crutch I felt that his L ankle had become sore due to compensation with his weight bearing.
His L ankle pain is not resolving and he had an MRI which showed tenosynovitis of the peroneus brevis tendon which I felt is the cause of his pain. In my opinion this injury is due to abnormal weight bearing relating to how he mobilises due to R knee.”
Comcare was also provided a report dated 21 October 2014 by the Applicant’s treating GP, Dr Cullen – Exhibit 1 T18 pp. 75 – 76.
Dr Cullen made the following observations – Exhibit 1 T18 p. 75:
“Following the R knee injury, Mr Campion first reported the L ankle and foot pain to me on 29/8/14. This is secondary to him having to favor the left lower limb in order to take pressure off his R knee. [B]y the 29^th September 2014 the L foot had increased in pain and was affecting the patients ability to walk. The L foot is better when strapped by the physiotherapist. On examination Michael had tender distal medial and lateral ankle tendons.
The L ankle/foot problems are on a back ground of fracture of the foot in 2005. Secondary to this issue he needed bone transplant into the L foot. I have not seen reports from this 2005 injury/surgery. Michael also had a L ankle strain/sprain in may 2012, but his ankle/foot did recover fully after this injury.
Recent MRI L foot shows complete surgical fusion of the subtalar joint without evidence of complication. Moderately severe degenerative joint disease at the calcaneocuboid joint. Peroneus brevis tenosynovitis most pronounced in the vicinity of the distal fibular tip, potentially accounting for the presenting symptoms.
Mr Campion does have a history of osteoarthritis and injury to his left ankle and foot. He did not, however, have any chronic L foot/ankle problems prior to the injury of July 2013 and nor did he have any impact on his ability to exercise and mobilise secondary to L foot problems. Given the gait that he has had to adopt secondary to his R knee injury, I think it completely reasonable that his current L foot/ankle issues are secondary to gait and stance alteration from the knee injury. I think it fair to state that Mr Campion would not have got worsening of his L foot arthritis for quite a few more years, had he not had the R knee injury.”
Subsequently the Applicant made a Claim for Workers’ Compensation – Exhibit 1 T19 pp. 77 – 97.
The Applicant stated that due to the injury to his right knee undue pressure was placed on his left foot over the previous twelve months – Exhibit 1 T19 pp. 81 – 83.
On 27 October 2014 a Comcare Delegate determined, in relation to the claimed condition of fracture of patella (right) and sprain of unspecified site of knee and leg (right), that the Applicant was not presently suffering from the effects of the compensable condition and, therefore, there was no present entitlement to compensation in respect of medical expenses under s 16 or entitlement to compensation for incapacity payments under s 19 – Exhibit 5 Attachment 1.
In reaching this conclusion the Comcare Delegate referred to, and quoted from, Dr Doneley’s report.
On 29 October 2014 the same Comcare Delegate denied liability pursuant to s 14 for the Applicant’s claim for his left ankle/foot condition – Exhibit 5 Attachment 2.
The Delegate noted that the first time the Applicant reported left ankle and foot pain was to Dr Cullen on 29 August 2014, but that on 13 May 2014 Dr Reilly opined that the compensable injury had “completely resolved”. Reference was also made to the report of Dr Doneley. The Delegate made the following observations:
“Effectively, as of May 2014 medical opinion indicated your compensable injury had resolved. This was confirmed by the independent assessor. However, in accordance with the requirements of natural justice, a determination was not issued stating compensable (sic) was not presently payable as Comcare was obliged to provide you with the opportunity [to] submit your view and counter opinion prior to any decision being made. As referenced above, this decision was issued on 27 October 2014.
For liability to be found for a secondary condition the onset of the secondary condition must be causally related to the primary condition. Given the compensable injury had resolved by May 2014, and one may assume the injury had a diminishing impact in the period leading up to May, and that the left foot injury was not reported until the end of August, then it is unclear how the left foot condition is causally related to the compensable injury. Rather the onset of the left foot condition appears in probability to be related to the degenerative right knee condition.”
The Applicant sought reconsideration of both determinations. On 7 January 2015 a Comcare Review Officer affirmed both determinations – Exhibit 5 Attachment 3. The following reasons were provided:
“Dr Doneley advised that the injuries you sustained to your right knee on 19 July 2013 had resolved and your current right knee condition is advanced degenerative change (osteoarthritis).
Dr Reilly also advised that your right knee injuries of 19 July 2013 had completely resolved and your current condition is not work related.
Due to the area of speciality of Dr Doneley and Dr Reilly, I am satisfied that the weight of the medical evidence clearly supports that your compensable right knee condition had resolved by May 2014.
For liability to be found for a secondary condition the onset of that condition must be related to the primary condition.
Dr Cullen and Mr Harmer opine that your left ankle/foot condition was secondary to your compensable right knee condition, however given that the evidence indicates that your compensable knee condition had resolved by May 2014, and you did not report problems with your left ankle/foot until September 2014, I am not satisfied that this condition is secondary to your right knee condition.”
Following the Review Officer’s decision, the Applicant sought review by the Administrative Appeals Tribunal (the Tribunal) under Application No 2015/0451 – Exhibit 1 T2 pp. 19 - 20.
The Applicant was referred, by his legal representatives, to Dr Anthony Ganko, Orthopaedic Surgeon, for examination and assessment. Dr Ganko examined the Applicant on 23 June 2015 and provided a detailed report dated 29 June 2015 – Exhibit 1 T20 pp. 98 – 119.
Dr Ganko reached the same conclusions and Drs Reilly and Doneley. In response to the Question “Do the original causative work events continue to be an effective or operative cause of the current condition?” Dr Ganko provided the following response – Exhibit 1 T20 p. 107:
“No they do not. The latter MRI scan showed resolution of the tibial plateau impaction fracture. Once that had healed, the remaining symptoms relate to osteoarthritis. Accepting his history and described functional levels as accurate, it appears his symptoms and disability related to his long established arthritis, have progressed or increased.”
On 20 November 2015 Senior Member McDermott (as he then was) made a consent determination following an agreement between the parties. The determination was in the following terms – Exhibit 1 T2 pp. 19 – 20:
“Pursuant to subsection 42C(2) of the Administrative Appeals Tribunal Act 1975, the Tribunal:
1. sets aside the reviewable decision dated 7 January 2015;
2. substitutes a decision that:
(a) as at 27 October 2014 and to the present date the applicant continues to suffer the effects of an injury suffered on 19 July 2013 previously described as ‘fracture of patella (right) and sprain of unspecified site of knee and leg (right);
(b) the accepted condition is properly described as an ‘aggravation of osteoarthritis – localised – knee (right) suffered on 19 July 2013’
(c) as at 27 October 2014 and to the present date the applicant is entitled to compensation under sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) in respect of the accepted ‘aggravation of pre-existing osteoarthritis – right knee’ condition;
(d) liability is accepted under section 14 of the SRC Act in respect of an ‘aggravation of osteoarthritis – localised – ankle or foot (left)’ deemed to have occurred on 5 September 2014;
(e) the respondent is to pay the applicant’s costs and disbursements fixed in the amount of $2,907.02 (including GST) in accordance with section 67 of the SRC Act…”

By further signed terms of agreement dated 15 August 2016, Comcare accepted that the Applicant had sustained 10% whole person impairment under Table 9.3 of Edition 2.1 of the Comcare Guide to the Assessment of the Degree of Permanent Impairment as a result of the accepted right knee condition – Exhibit 1 T2 pp. 17 – 18.
On 21 June 2017 the Applicant made a further Workers’ Compensation Claim for an incident that occurred on 17 May 2017 which involved a right knee injury – medial meniscal tear – Exhibit 1 T30 pp. 171 - 174. The Applicant stated that whilst he was walking with the aid of crutches he “tripped and suddenly placed weight on my bad knee” – Exhibit 1 T30 p. 171.
Prior to submitting his Workers’ Compensation Claim, the Applicant was referred by Dr Cullen to Dr Mark Richardson, Orthopaedic Surgeon who examined him on 20 June 2017. In a report of the same day, Dr Richardson made these observations – Exhibit 1 T29 p. 167:
“Thanks very much for referring Michael who is a 57 year old manager in the public service. He presents following a torsional injury to his right knee at work on the 18^th May 2017. Following the injury, he developed a significant amount of swelling overnight with difficulties mobilising. He gives a past history of an injury when he was in his teenage years that required an open operation. He’s also had progressive medial and patellofemoral compartment arthritis. I note the results of the MRI scan from the 26^th July 2013, describing severe degenerative joint disease involving the medial compartment and patellofemoral joint. This had been travelling reasonably well with conservative management up until his recent injury.
Review today demonstrated varus malalignment to his right knee. There was a moderate sized suprapatellar effusion. There was tenderness over the anteromedial joint line. The cruciate and collateral ligaments were intact. There was Grade I pseudolaxity of his medial collateral ligament consistent with his medial compartment degeneration.
An MRI of his knee demonstrated advanced medial and patellofemoral compartment arthritis. The lateral compartment was well preserved. The medial compartment demonstrated significant bone bruising involving his medial femoral condyle and anteromedial tibia. There was evidence of a prior partial medial meniscectomy. The sagittal and coronal films demonstrated a small tear involving the posterior horn of his medial meniscus.”
On 5 July 2017 a Comcare Delegate accepted the Applicant’s claim under s 14 for a small tear of the posterior horn of the medial meniscus (right knee) – Exhibit 1 T31 p. 175 – 176. Reference was made to Dr Richardson’s report in the reasons given for accepting the claim.
Comcare arranged for the Applicant to be examined and assessed by Dr Phil Allen, Consultant Orthopaedic Surgeon – Exhibit 1 T36 pp. 218 – 221. The object of the assessment was to assist Comcare by obtaining updated information in relation to the Applicant’s condition, including prognosis, reasonable treatment and capacity for employment.
Dr Allen assessed the Applicant on 17 October 2018 and provided two reports both dated 29 October 2018 – Exhibit 1 T43 pp. 241 - 249, T44 pp. 250 - 256.
In his first report, Dr Allen made the following observations – Exhibit 1 T43 p. 244:
“With regard to the right knee, Mr Campion appears to have sustained a meniscal injury at the age of 18 and underwent an open arthrotomy and partial meniscectomy at that time. In line with the natural history of open medial meniscectomy he has progressed on to develop degenerative change in the medial compartment of the right knee. Degenerative change has progressed over time and was documented as present in 2013 and 2014 on previous studies. Osteoarthritis of the knee was therefore present prior to the incident in 2013.
Mr Campion has sustained an exacerbation of the osteoarthritis of his right knee in 2013 and again in 2017. There was no new meniscal injury and he has simply had a progression of his osteoarthritis in the knee.
The underlying degenerative change in the knee is a consequence of his injury at the age of 18 and has continued to progress in line with the natural history of post-traumatic degenerative disease following partial open meniscectomy.”
In response to Questions concerning the employment relationship of his right knee condition, Dr Allen opined– Exhibit 1 T43 p. 246:
“With respect to the right knee, there has been an aggravation (exacerbation) of the underlying osteoarthritis of his knee which was sustained in 2013 and again in 2017.
There was no new meniscal injury and he has simply had a progression of his osteoarthritis in the knee.”
Further, in response to a Question of the degree and extent to which the Applicant’s employment continues to contribute to his current condition, Dr Allen provided the following response – Exhibit 1 T43 p. 247:
“The aggravation (exacerbation) of his right knee occurred in 2013 and again in 2017, as described at work. Such an exacerbation would ordinarily be expected to settle within six to 12 weeks. Ongoing symptoms are related to the natural progression of this disease.”
Finally, Dr Allen provided this response to the Question whether the Applicant’s right knee condition was still related to his employment or, alternatively, the natural progression of an underlying condition – Exhibit 1 T43 p. 247:
“No. Mr Campion has had an aggravation of the pre-existing osteoarthritis in his right knee in 2013 and this would ordinarily be expected to have settled within six to 12 weeks. The same applies to the injury in 2017. The ongoing symptoms are related to his underlying degenerative changes in his right knee, and are therefore no longer related to his employment with Australian Communications and Media Authority but are related to pre-existing degenerative changes in these joints.
There was no new meniscal injury and he has simply had a progression of his osteoarthritis in the knee.”
In his second report, Dr Allen made the following observations about the Applicant’s right foot and left ankle – Exhibit 1 T44 p. 254:
“Mr Campion sustained an unspecified fracture of his right foot and ankle on the left side which has resulted in surgery to fuse the subtalar joint. In line with the natural history of such a procedure he has developed evidence of degenerative change and tendinitis affecting his foot. This is documented in his scan from October 2014.”
Dr Allen then provided the following prognosis of this condition – Exhibit 1 T44 p. 254:
“The prognosis is for progressive degeneration in both the left ankle and the right knee over time in line with the natural history of degenerative joint disease.”
On 20 November 2018 Comcare informed the Applicant of its intention to determine that it had no present liability to pay medical expenses under s 16 and incapacity payments under s 19 for:
(a)aggravation of osteoarthritis – localised – knee (right), sprain of unspecified site of knee or leg (right), aggravation of osteoarthritis – localise – ankle or foot (left) arising on 19 July 2013; and
(b)tear of medial cartilage or meniscus of knee (right) arising on 16 May 2017 – Exhibit 1 T 49, 50 pp. 263 – 266.
The Applicant responded in an email of 31 January 2019 – Exhibit 1 T57 pp. 276 – 279.
First, he outlined his concerns about the objectivity of Dr Allen – Exhibit 1 T57 p. 276:
“A very disappointing result from Mr Allen’s visit was his rude and obnoxious behaviour. I brought in numerous documents to support my condition and was not interested in any of them. I therefore find some difficulty in how he could produce a balanced and knowledgeable report without at least reviewing the evidence I brought in for his consideration including the AAT ruling which was in my favour.”
The Applicant contended that he had in fact suffered a new meniscal injury and referred to the findings of the MRI of 26 July 2013. He also contended that Dr Allen was incorrect in opining that there had been a progression in the osteoarthritis of the right knee – Exhibit 1 T57 pp. 276 – 277. Reference was also made to the numerous visits he had made to medical practitioners and physiotherapists and the results of the previous Tribunal proceedings.
On 11 February 2019 the Applicant submitted a further Incident Report in which he claimed that his right knee was injured whilst he was travelling to work on a train – Exhibit 1 T58 p. 281:
“I caught an early train…and it was very busy so during the journey I did not have an opportunity to stretch my knee and it was in an uncomfortable position for the 35 minute train journey. When I went to stand up it was quite painful. I then hoppled to work on my crutches…by the time I got to work I was in considerable pain. I tried stretches and other exercises which usually assist with my knee but it remains painful.”
The Applicant was examined by Dr Angel on the same day who referred him to Dr Richardson, Orthopaedic Surgeon for urgent review. Dr Angel provided Dr Richardson with the following observations – Exhibit 1 T59 p. 287:
“On examination the anterior drawer test is negative but he is very tender at the joint line.
I suspect that he has developed a further meniscal tear (possibly lateral one as well).”
On 12 February 2019, and before the Applicant was examined by Dr Richardson for a second time, a Comcare Delegate made two determinations of no present liability.
The first determination denied present liability for medical expenses under s 16. The Delegate referred to the reports of Dr Richardson of 20 June 2017 and Dr Allen of 29 October 2018 and concluded as follows – Exhibit 1 T60 p. 292:
“Based on the report by Dr Phil Allen dated 29 October 2018, the medical report dated 20 June 2017 by Dr Mark Richardson and the medical evidence on your file, I’m satisfied your condition of aggravation of osteoarthritis – localised – knee (right) and aggravation of osteoarthritis – localised – ankle or foot (left) have both progressed in line with the natural history of your pre existing condition and therefore no longer related to your employment with ACMA.”
The second determination, which related to the 2017 incident, denied present liability for medical expenses under s 16 and incapacity payments under s 19 – Exhibit 1 T61 pp. 294 - 296.
The Comcare Delegate referred to the report of Dr Allen of 29 October 2018 and his conclusion that the Applicant’s current condition was not related to his employment with ACMA but, rather, resulted from a degenerative and constitutional joint disease which was progressing in line with the natural history of the disease.
Reference was also made to Dr Cullen’s report of 2 June 2017 and the report of Dr Richard Brown (Sports physician) of 7 December 2017. Dr Brown noted – Exhibit 1 T61 p. 295:
“The diagnosis was meniscus trouble and osteoarthritis of the knee with most of the symptoms coming from Osteoarthritis of the knee.”
The Comcare Delegate concluded as follows – Exhibit 1 T61 p. 295:
“Taking into account the report b[y] Dr Allen and your treating doctors reports, I am satisfied the condition you currently suffer is the natural progression of your pre existing osteoarthritis of your right knee and is unrelated to your employment with ACMA.”
The Applicant sought reconsideration of both determinations and emailed Comcare on 29 March 2019 with reasons for reconsideration – Exhibit 1 T69 pp. 312 – 319. Of significance was the reliance that the Applicant placed on his second assessment by Dr Richardson on 20 March 2019. Dr Richardson’s report of 20 March 2019 was attached to the reconsideration request.
Dr Richardson made the following observations in his report – Exhibit 1 T69 p. 319:
“I reviewed Michael today following an exacerbation of symptoms in relation to his right knee when he was sitting on a train in a hyperflexed position approximately 3 weeks ago. He went to get up off the chair and noticed the sudden onset of pain and gradual onset of swelling over the next couple of hours. He has had persistent symptoms since then, although things are gradually settling. I note that he originally sustained an injury to his right knee on the 20^th July 2013 when he fell down a hole and sustained a fracture of his patellar. He then sustained a further injury on the 17^th May 2017, with a tear involving his medial meniscus.
The most recent scans of his right knee demonstrate advanced osteoarthritis involving his medial and patellar femoral compartments. The cruciate and collateral ligaments were intact. There was maceration and extrusion of the medial meniscus from the joint line with a horizontal cleavage tear involving the posterior horn of this structure. Typically these horizontal cleavage tears are mechanically stable. Based on his MRI findings, I am not convinced that any arthroscopic surgery is going to provide any significant relief.
The original injury involving the fracture of his patellar on the 20^th July 2013 continues to prove problematic and is contributory to the osteoarthritis involving his patellar femoral joint. When comparing the MRI scan from 2014 until the present, there has been a gradual increase in the degree of osteoarthritis involving his medial and patellar femoral compartments. The most appropriate surgical option for his right knee long term is likely to be a total knee replacement. He is likely to develop a progressive increase in symptoms with intermittent exacerbations over time. The original injury sustained on the 20^th July 2013 is contributory to the development of osteoarthritis involving his right knee. The further injury that occurred on the 17^th May 2017 is similarly contributory to his current symptoms. At this stage, the plan was to continue to exhaust his conservative options although, in the short to medium term he is likely to have more significant symptoms and when these are severe and sustained he would benefit from joint replacement.”
Both determinations were reconsidered by a Review Officer who handed down a single determination on 26 April 2019 which dealt with both matters – Exhibit 1 T72 pp. 324 – 328.
The Review Officer referred to the reports of Dr Allen, Dr Reilly, Dr Doneley, Dr Cullen, Dr Brown and the first report of Dr Richardson. There is no mention in the determination of the 29 March 2019 report of Dr Richardson.
The Review Officer then made the following observations – Exhibit 1 T72 p. 327:
“I have considered the available medical evidence and I am not satisfied that the current presentation of symptoms in the right knee or the left ankle/foot are as a result of the compensable circumstances in which your underlying degenerative conditions were aggravated. In particular, I note that you required knee surgery at the age of 18 for a partial meniscectomy and your fall from a ladder in 2000 resulting in fractures to your ankle/foot. Available evidence, in particular from Dr Allen who most recently reviewed you and is a specialist, indicates that the degenerative changes in your knee and ankle commenced due to these injuries and that ongoing changes are consistent with the natural progression of the underlying disease. I also note that your weight has been noted by a number of practitioners as a contributing factor to ongoing symptoms.
In conclusion, I find that any employment aggravations to your underlying disease should not have impacted your experience of symptoms for a period greater than 6 – 12 weeks and as such, have since resolved. Any more recent aggravation, for example your report of injury either on or getting off a train, are unrelated to your employment and are a mere continuation of the underlying condition present in both you right knee and left ankle/foot. As I am unable to be satisfied that you continue to experience the effects of the work related aggravations, it follows that medical expenses and incapacity payments are not payable in respect to either claim 4 or 6 as found by the delegate in the determination of 12 February 2019.”
On 13 May 2019 the Applicant made an Application for Review of Decision with the Tribunal – Exhibit 1 T2 pp. 5 – 20.
On 5 July 2019 the Applicant made a further Workers’ Compensation Claim – Exhibit 2 T14 pp. 38 – 42.
The Applicant stated that on 5 June 2019 he was sitting at his home based computer, which had been set up ergonomically by ACMA, and when he stood up and took a step he experienced pain in his right knee which resulted in him collapsing and then being unable to place any weight on his right leg – Exhibit 2 T14 p. 39.
The Applicant was examined by Dr Richardson on 21 June 2019. In his report of the same date, Dr Richardson made the following observations – Exhibit 2 T12 p. 33:
“I reviewed Michael today following the sudden onset of pain involving the posterior aspect of his right knee approximately 2 weeks ago. There was no precipitant event. The pain has gradually settled although he remains mobilizing on crutches with a moderate sized suprapatellar effusion and varus malalignment. The recent MRI scan demonstrated advanced medial and patellofemoral compartment osteoarthritis. On balance, there was evidence of a rupture of a Baker’s cyst involving the popliteal fossa that is likely to account for his posterior pain. There was fluid tracking distally into the calf musculature consistent with this diagnosis.
There was no new pathology in the knee joint itself apart from his advanced osteoarthritis.”
Two observations can be made about Dr Richardson’s findings.
First, he refers to the sudden onset of pain in the Applicant’s right knee, but then goes on to note that there “was no precipitant event.” It is not clear from this report if the Applicant informed Dr Richardson of the 5 June 2019 incident, however what is clear is that Dr Richardson’s report does not refer to it.
Second, Dr Richardson states “on balance” there has been a rupture of a Baker’s cyst and refers to a recent MRI. However, when one refers to the MRI which was performed on 6 June 2019 the following observations are made – Exhibit 2 T10 p. 29:
“There are 2 Baker’s cysts present. One cyst measures 33 x 30 x 11 mm and the other 20 x 7 x 2 mm. There is no evidence of fluid tracking away from either cyst to suggest recent rupture. The popliteal vein and artery have an unremarkable appearance.”
After receiving the Applicant’s Workers’ Compensation Claim, Comcare requested reports from Drs Cullen and Richardson – Exhibit 2 T15 – 16 pp. 45 – 52.
Dr Richardson provided a report dated 10 July 2019 in which he answered nine Questions asked by Comcare.
Dealing firstly with the results of recent scans of the Applicant’s right knee, Dr Richardson made the following observations – Exhibit 2 T17 p. 53:
“The most recent scans of his right knee demonstrated advanced osteoarthritis involving his medial and patellofemoral compartments. The cruciate and collateral ligaments were intact. There were maceration and extrusion of medial meniscus from the joint line with a horizontal cleavage tear involving the posterior horn of his structure. On this basis, the specific diagnosis for his right knee condition from the February 2019 incident was an exacerbation of the osteoarthritis involving his right knee. This is based on history, clinical examination and radiological examination at that time.”
In response to the Question: “What was the injury mechanism of the February 2019 aggravation, and how significantly did it change Mr Champion’s (sic) right knee condition from how it had been previously”, Dr Richardson provided the following response – Exhibit 2 T17 p. 53:
“The injury mechanism in February 2019 could be considered an aggravation of his pre-existing osteoarthritis. It is, however, unlikely to change his right knee condition from how it had been previously.”
Dr Richardson opined that the 2013 right knee injury “is likely to have significantly increased the symptoms in relation to his right knee” – Exhibit 2 T17 p. 54.
In response to a Question which asked how significantly do constitutional and/or age-related factors contribute to the Applicant’s current right knee condition, Dr Richardson answered – Exhibit 2 T17 p. 54:
“With respect to his medial compartment osteoarthritis constitutional and age-related factors are a significant contributing factor to his current right knee condition.”

Finally, Dr Richardson was asked what his prognosis of the Applicant’s condition and when it would be expected to resolve. Dr Richardson answered as follows – Exhibit 2 T17 p. 54:
“Mr Campion’s right knee is likely to deteriorate with respect to symptoms. The aggravation of his pre-existent osteoarthritis is likely to settle approximately 6 weeks following the initial injury. Any ongoing symptoms are likely to be related to the underlying pre-existent condition.”
Dr Cullen provided a report dated 15 July 2019 – Exhibit 2 T19 pp. 58 – 60. It is unnecessary to quote extensively from the report, as Dr Cullen either deferred to, or agreed with, the opinions expressed by Dr Richardson. However, Dr Cullen specifically addressed the impacts of the June 2019 incident.
Dr Cullen diagnosed the Applicant’s right knee condition after the June 2019 as “Rupture of Baker’s cyst + increased posterior medial meniscus tear to full thickness radial tear” – Exhibit 2 T19 p.58.
Further, Dr Cullen opined – Exhibit 2 T19 pp. 58 – 59:
“On balance, there was evidence of rupture of a Baker’s cyst involving the popliteal fossa that is likely to account for his posterior pain. There was fluid tracking distally into the calf musculature consistent with this diagnosis. There is no new pathology in the knee joint itself apart from his advanced osteoarthritis.”
On 31 July 2019 Comcare accepted liability for “aggravation of right medial meniscus tear” and “rupture of right knee Baker’s cyst” but declined liability for “aggravation of right knee osteoarthritis.” – Exhibit 2 T20 p. 61.
Liability was accepted for the first two conditions because Comcare was satisfied the Applicant sustained the injuries as a result of standing from a seated position whilst working from home on 5 June 2019.
Liability was declined for the third condition because although Comcare was satisfied that the Applicant was suffering from it, Comcare was not satisfied that it had been aggravated by the 5 June 2019 incident or any other aspect of employment with ACMA.
The Comcare Claims Manager helpfully set out the medical evidence that he considered – Exhibit 2 T20 pp. 63 – 64. He also outlined with clarity the conclusions he formed from that evidence – Exhibit 2 T20 p. 64:
“Comparing Mr Campion’s February 2019 MRI to that of June 2019 shows that his medial meniscus tear had increased in the intervening period, as confirmed by Dr Cullen. In the absence of another cause, I am satisfied that this increase was as a result of the 2019 incident.
While I acknowledge that Mr Campion’s June 2019 Ultrasound report stated that the two identified Baker’s cysts had not ruptured, I accept Dr Richardson’s expert opinion as an Orthopaedic Surgeon that there was evidence of a rupture and that this accounted for Mr Campion’s sudden onset of posterior right knee pain when he stood from a seat position while working from home on 5 June 2019. This is supported by Dr Cullen diagnosing Baker’s cyst rupture as one of the two injuries resulting from that incident.
Neither Dr Cullen’s or Dr Richardson’s evidence indicates that the June 2019 incident resulted in any pathological change to Mr Campion’s right knee osteoarthritis. Dr Richardson’s July 2019 report seems to indicate that the June 2019 incident may have exacerbated Mr Campion’s osteoarthritis symptoms in a similar way to the February 2019 incident but, even if this is so, I do not consider that an exacerbation of symptoms alone constitutes an aggravation. Dr Richardson stated that the incident is unlikely to have changed Mr Campion’s right knee condition from how it had been previously.”
On 9 April 2020 the Applicant requested a reconsideration of that part of the determination which declined liability for aggravation of right knee osteoarthritis – Exhibit 2 T29 pp. 86 – 89.
On 14 May 2020 Dr Richardson wrote to Comcare regarding the Applicant’s right knee osteoarthritis – Exhibit 2 T32 p. 95:
“I am writing to you in relation to Mr Campion’s progressive osteoarthritis involving his right knee. He has sustained 2 prior injuries to the same knee. He has sustained 2 prior injuries to the same knee. The first occurred in 2013 that involved a minimally displaced fracture involving his patella. He then sustained a further injury on 17 May 2017 with a tear involving his medial meniscus. Both of these conditions are contributory to the advanced nature of his medial and patellofemoral compartment arthrosis. His current symptoms are gradually worsening where he has pain with prolonged standing, walking and difficulty sleeping at night secondary to this discomfort. He is likely to have further exacerbations of this pain in relation to this osteoarthritis. In my opinion, the 2 previous injuries are contributory to the advanced nature of his current condition.”
On 29 May 2020 a Comcare Review Officer affirmed the previous determination of 31 July 2019 – Exhibit 2 T33 pp. 96 – 100.
The Review Officer accepted that the Applicant had suffered an aggravation of his right medial meniscus tear and rupture of right knee Baker’s cyst, but he had not sustained an aggravation of his right knee osteoarthritis. In reaching the conclusion that the Applicant had not sustained an aggravation of his right knee osteoarthritis, reliance was placed on Dr Richardson’s report of 10 July 2019. The Review Officer, however, did not refer to Dr Richardson’s short report of 14 May 2020.
Finally, it is necessary to deal with the determinations of Comcare in relation to the “train incident”.
On 31 July 2019 a Comcare Claims Manager declined liability in relation to a claim for “aggravation of right knee injury”. The Claims Manager, while being satisfied that the Applicant did sustain an aggravation of the right medial meniscus tear as a result of sitting on a train in a hyperflexed position, was not satisfied that the injury arose out of the Applicant’s employment. Further, the Claims Manager was also satisfied that the Applicant suffered from osteoarthritis of the right knee, he was not satisfied that the ailment was aggravated by the 11 February 2019 incident – Exhibit 3 T18 pp. 58 – 59.
The Applicant sought a reconsideration of this determination, and on 2 September 2020 a Senior Review Officer affirmed the determination of 31 July 2019 – Exhibit 3 T20 pp. 68 – 74.
The Review Officer found that the “injury” did not arise out of, or in the course, of the Applicant’s employment – Exhibit 3 T20 p. 71:
“An injury is taken to have arisen in the course of employment where travelling, in instances where you were so directed or requested to do so by your employer for the purposes of employment. While I note your claims that you only attended the office for key meetings, your medical certificate allowed for you to travel to the office to completed other work. This combined with the evidence of Ms Chiswell supports the finding that on 11 February 2019 you had not been directed or requested to come into work by your employer, but were travelling from your home to your usual place of work.”
THE HEARING
The Tribunal convened a Hearing in Brisbane on 21 June 2021. Due to social distancing requirements consequent upon the COVID-19 pandemic the Hearing was held remotely utilising Microsoft Teams.
The Applicant was self-represented and Comcare was represented by Ms K Slack of Counsel.
The only witness called was Dr Allen.
ISSUES
In the Respondent’s Outline of Closing Submissions (ROCS) Ms Slack helpfully set out the issues for determination in this matter – paras 3 -14. The Tribunal agrees that Ms Slack has correctly summarised the matters for determination, and they are set out below:
Application 2019/2758
1.whether the Applicant continues to suffer the effects of his accepted “aggravation of osteoarthritis – localised – right knee” injury sustained on 19 July 2013?;
2.whether the Applicant continues to suffer the effects of his accepted “aggravation of osteoarthritis – localised – left ankle/foot” injury sustained on 5 September 2014?;
3.if so, is the Applicant’s employment continuing to contribute to each ailment, to a significant degree?
4.Whether the Respondent is liable to pay compensation in respect of each of those conditions for medical treatment under s 16?
Application 2019/2759
1.whether the Applicant continues to suffer the effects of his “small tear of the posterior horn of the menial meniscus (right knee)” or any “aggravation of his underlying osteoarthritis” which occurred on 17 May 2017?; and
2.whether the Respondent is liable to pay compensation for medical treatment and incapacity for work under ss 16 and 19 in respect of the injury?
Application 2020/3361
1.what, if any, ailment or injury arose on 5 June 2019?; and
2.did it/they arise out of, or in the course of, or were significantly contributed to, by the Applicant’s employment?
Application 2020/7585
1.whether the Applicant suffered an “aggravation of right medial meniscus tear” and/or an “aggravation of right knee osteoarthritis” on 11 February 2019?;
2.if so, did it/they arise out of, or in the course of, the Applicant’s employment?;
3.alternatively, was it/they an aggravation of an underlying condition?;
4.if so, was it/they contributed to, to a significant degree, by the Applicant’s employment?
THE LAW
Section 14 “is the central provision of the Act so far as the liability of Comcare to pay compensation is concerned.” - Lees v Comcare [1999] FCA 753 (Lees) at [27]. It creates a liability for Comcare to pay compensation for injuries suffered by employees resulting in death, incapacity for work or impairment. As the Full Court in Lees highlighted, liability is qualified in two ways:
(a)liability is subject to the other provisions in Part II of the Act; and
(b)the liability is “in accordance with the Act”, namely “to pay compensation for which the statute provides, as required by the Act (see, for example, ss 17(3), (4), (5), 19, 2, 24 and 25)” – Lees at [27].
In order for liability to accepted pursuant to s 14, the following findings are required:
(a)appropriate notice of injury has been given;
(b)a claim for compensation, in accordance with the Act, has been made;
(c)the claimant was an employee at the relevant time;
(d)the employee suffered an injury; and
(e)the injury resulted in death, incapacity for work or impairment;
see Lees at [35].
There is a distinction between a decision to revoke a s 14 determination and one terminating liability because the condition no longer attracts payments for medical expenses or for incapacity (a “ceased effects” determination). The former requires revisiting one or more of the five matters highlighted in Lees – see Renouf and Comcare [2004] AATA 525 at [76]. It is much more likely that a cessation of liability will involve reconsidering matters under ss 16 and 19 of the Act.
Before focusing on the nature of the compensable “injury” it is important to note that in those matters where Comcare has initially accepted liability to pay compensation under s 14, in order for compensation to continue to be paid, there must be continuing incapacity or impairment, which incapacity or impairment remains causally linked to the employment related injury– see Prain v Comcare (2017) 256 FCR 65 (Prain). Recently the Full Federal Court in Woodhouse v Comcare [2021] FCAFC 95 helpfully explained the causal relationship between employment and the injury in respect of which compensation is sought (at [85]):
“Logically, the causes of a disease or ailment tend to cease once a condition is suffered and the employee ceases employment or the causative factors are remedied. However, having been caused by the contribution of the employee’s employment, the condition itself often continues and compensation is payable to the extent to which it results in death, incapacity or impairment. It does not follow that, in order for Comcare to remain liable, the employee’s employment needs to remain a constant and contributing contributor to the ongoing injury. That would rarely, if ever, be the case. However, what is required is that the contribution requirement remain in place in the sense that the disease or ailment continues to have the characteristic of having been contributed to in a material degree by the relevant employment. To say that the employment factors continue to contribute in a material way to the employee’s condition is an articulate way to express this. It is preferable to say that the causal nexus between the employee’s employment and suffering of the disease continues unbroken. In this way, the operative effect of the expression ‘was contributed to’ in the definition is not spent once it has connected the employee’s employment with the contraction or aggravation of the ailment. In order for a disease to remain one in respect of which Comcare will be liable, it must retain the continuing characteristic that it was contributed to in the necessary degree by the employment. If at any later point in time the ailment suffered by an employee ceases to have that character, it will also cease to be a ‘disease’, and will therefore cease to be an ‘injury’ in respect of which compensation is payable pursuant to s 14 of the SRC Act. For the duration of each of the periods in respect of which the question of compensation is being determined, it must be possible to say that the contribution requirement was satisfied in respect of the ailment.”
The term “injury” is defined by s 5A 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, an employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.”
At the outset it is appropriate to refer to the following observations of the High Court in Canute v Comcare (2006) 226 CLR 535 at 540 about the concept of an “injury”:
“First, the Act does not oblige Comcare to pay compensation in respect of an employee’s impairment; it is liable to pay compensation in respect of ‘the injury’. Secondly, the term ‘injury’ is not used in the Act in the sense of ‘workplace accident’. The definition of ‘injury’ is expressed in terms of the resultant effect of an incident or ailment upon the employee’s body. Thirdly, the term ‘injury’ is not used in a global sense to describe the general condition of the employee following an incident. The Act refers disjunctively to ‘disease’ or ‘physical or mental’ injuries and, at least to that extent, it assumes that an employee may sustain more than one ‘injury’. The use in s 24(1) of the indefinite article in the expression ‘an injury’ reinforces that conclusion.”
It will be seen that the definition of “injury” comprises two main subsets, namely “disease” and “injury (other than a disease)” each of which comprises separate but related bases of liability. The third basis of liability is an aggravation of a physical or mental injury (other than a disease).
As the High Court explained in Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468 at 482 (May), the first task of the tribunal of fact is to determine if the employee is suffering a disease.
“Disease” is defined by s 5B of the Act to mean:
“(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.”
The term “ailment” is defined by s 4(1) to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).”
“Aggravation” includes acceleration or recurrence – s 4(1). Reference can also be made to the following observations of Windeyer J in Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537 at 593:
“’Aggravation’ means, I think, that an existing disease has been made worse, not that it has simply become worse. ‘Acceleration’ I have previously said and venture to repeat ‘probably presupposes a progressive disease, one that, running its ordinary course, increases in gravity until a climax, such as death or total invalidism, is reached – its progress to this end result not being ordinarily susceptible of being permanently arrested, but susceptible of being hastened by external stimuli’: Federal Broom v Semlitch…”
It is important to note that the test of employment contribution for a disease (or aggravation thereof) is dependent on the timing of the onset of the compensable “injury”. The Act was amended in 2007 replacing the “material degree” test with the “significant degree” test.
Prior to 2007 the definition of disease was found in s 4, and it referred to an employment contribution of “a material degree”. Accordingly, it is not sufficient to simply establish the existence of a disease, for as French CJ, Kiefel, Nettle and Gordon JJ explained in May at 480:
“The ailment or aggravation thereof has to have been contributed to in a material degree by the employee’s employment with the Commonwealth.”
Reference can be made to the observations of Finn J in Comcare v Sahu-Khan [2007] FCA 15; 156 FCR 536 for guidance in ascertaining the meaning of “material degree”:
“13…the inclusion of the word ‘material’ imposes an ‘evaluative threshold’ below which a causal connection may be disregarded.
14 What is problematic is identifying where the threshold lies. Treloar’s case sets its own threshold of sorts for satisfying the 1971 Act’s ‘contributing factor’ requirement. It would, for example, exclude a de minimus contribution or one which did not influence the course of events. But once an employment was found to be a contributing factor to the condition in question, it did not matter whether the contribution was of any particular size or degree: Treloar, at 329. It has not been uncommon for courts, in dealing with statutes requiring such a contribution to be found, to describe the contribution as ‘material’: see eg Repatriation Commission v Bendy (1989) 10 AAR 323 at 325. That usage is not how the term ‘material’ in the phrase ‘in a material degree’ is used in the SRC Act. The legislative history of this definition makes this plain.
There are, in my view, obvious hazards in allowing finely tuned nuanced differences in dictionary definitions to contrive the answer to this question, given as I have noted, that the word ‘material’ in this context had its legislative meaning set in part by the qualification it imposed on the nature of the contribution required to be demonstrated before the provisions in the SRC Act were engaged. This said I consider that one of the meanings of the word ‘materially’ in the Shorter Oxford English Dictionary probably captures the essence of what the legislature was conveying. That meaning is –
‘4. In a material degree; substantially, considerably.’
An example given of this usage is that of contributing ‘materially to the funds required’ for a purpose. This usage probably comes closer to what Davies J in Bendy described (at 325) as the ‘loose sense’ of the definition of ‘material’ in the Macquarie dictionary ‘namely, ‘of substantial import or much consequence’ [rather than the] legal sense of ‘pertinent’ or ‘likely to influence’.
Bearing in mind that the course of statutory construction is often not aided by substituting for the word used in an enactment, another word which is not so used, probably the best that can ultimately be said is that the s 4 definition:
(i) requires a stronger causal relationship between the employment and the ailment, etc suffered than that exacted by the 1971 Act;
(ii) ‘in a material degree’ requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment, etc, in question (‘the threshold evaluation’);
(iii) whether this will be so in a given case will be a matter of fact and degree.”

It is important in this context to refer to s 5B(3) which defines “significant degree” as a “degree that is substantially more than material.” It follows, then, that a “material degree” is substantially less than a “significant degree”.
The “significant degree” test applies in relation to an ailment, or an aggravation of that ailment, that an employee suffers on or after 12 April 2007. Subsection 7(4) provides, for the purposes of the Act, that an employee is taken to have sustained an injury, being a disease or an aggravation thereof, on the earlier of:
(a)the employee first seeking medical treatment; or
(b)when the disease first resulted in incapacity or impairment.
Reference can be made to the very helpful discussion of the history of the 2007 amendments to the Act in Comcare v Power (2015) 238 FCR 187 at 201 – 205/[78] – [95] per Katzmann J. In particular, the following guidance was given (at 201/[78]):
“A contribution to a degree that is substantially more than material must necessarily be substantially greater than one which is trivial.”
(emphasis in original)
In determining whether an ailment, or aggravation thereof, was contributed to, to a significant degree, by an employee’s employment, s 5B(2) provides that the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee not related to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
This list is non-exhaustive, and s 5B(2) specifically provides that the matters listed in the subsection do “not limit the matters that may be taken into account.”
Subsection 16(1) of the Act provides:
“Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.”
It will be seen that s 16(1) requires that the medical treatment obtained must be “in relation to the injury”. Whilst the words “in relation to” have the widest possible meaning intended to convey some connection between the subject matter to which the words refer (Trustees Executors & Agency Co Ltd v Reilly [1941] VLR 110 at 111 per Mann CJ), the relational connection between the medical treatment and the compensable injuries must be determined objectively and by reference to all relevant evidence. In order to determine if the relational connection exists or existed, it is necessary for the Tribunal to consider the nature of the compensable injuries in light of the evidence presented, including opinions by medical specialists, and to make, on the balance, an evaluative conclusion – Howes v Comcare [2016] FCA 1521 at [53] – [54].
Section 19 provides that Comcare is liable to pay compensation calculated in accordance with the prescribed formulae to an employee who is incapacitated for work as a result of an injury. Essentially, compensation for incapacity is paid on the basis of normal weekly earnings and is designed to reflect pre-injury earnings, including regular overtime and certain allowances.
CONSIDERATION
Although there are a number of issues for determination by the Tribunal with respect to the Applications before it, of considerable importance is the fact that the Applicant substantially relies on the reports of Dr Richardson, whilst Comcare relies on the reports of Dr Allen. To the extent that there is a difference of opinion between these gentlemen, the Tribunal will explain below why it prefers one opinion over another.
At the outset it is desirable to deal with the submissions of the Applicant with respect to the reports and evidence of Dr Allen. The Tribunal has before it five reports prepared by Dr Allen, namely:
(a)Report of 29 October 2018 – Exhibit 1 T43 pp. 241 – 249;
(b)Report of 29 October 2018 – Exhibit 1 T44 pp. 250 – 256;
(c)Report of 22 November 2018 – Exhibit 1 T53 pp. 269 – 270;
(d)Report of 9 December 2019 – Exhibit 8; and
(e)Report of 11 February 2021 – Exhibit 10.
The Applicant made the following submissions regarding Dr Allen’s reports – Exhibit 11 para 2.1(i):
“The Applicant will examine and prove each of the reports provided by Dr Allen were inadmissible as medical evidence for the following reasons:
·Dr Allen was not provided enough information to make an informed medical opinion.
·The Applicant offered Dr Allen important documents at their meeting as advised by Comcare which Dr Allen refused to review.
·At the medical meeting Dr Allen was very rude, very short and dismissive of everything the applicant had to offer in way of evidence.
·Dr Allen’s reviews on his web page confirms he treats all patients with an air of superiority and arrogance.
·The reports produced were basically plagiarised documents with little effort to provide real evidence.
·Some reports did not meet the Guidelines required for Expert Witnesses and cannot be accepted as evidence.
·Other reports listed documents that should be read in conjunction with the report however the document listed do not even exist.
·Medical opinions that contradict several orthopaedic surgeons and imaging experts.”
Possibly the most serious submission made by the Applicant with respect to Dr Allen is his contention that Comcare failed to provide Dr Allen with enough information to make an informed medical opinion. This submission was supplemented in the Applicant’s Outline of Closing Submissions (AOCS). The Applicant contends, inter alia, that Dr Allen’s reports are deficient in that he was not provided copies of Dr Richardson’s reports. In particular, reference is made to the briefing material provided to Dr Allen by Comcare on 27 November 2019 which is contained in Exhibit 7.
Before turning to the briefing material of 27 November 2019, it is the case that Comcare did not brief Dr Allen with any extant reports of Dr Richardson for the purposes of the two 29 October 2018 reports – Exhibit 1 T43 p. 242.
With respect to the briefing of 27 November 2019, the Applicant made the following submission – AOCS para 100:
“This time 41 different documents were included for Dr Allen to consider. Again, there were no documents from the treating specialist Dr Richardson the Orthopaedic surgeon who only specialises in knees which were crucial for Dr Allen to provide a balanced an accurate report considering all medical evidence.”
Two observations can be made about this submission.
First, it is not correct to state that, on its face, no reports of Dr Richardson were specifically listed as being provided to Dr Allen. At subpara 2.1.24 of the briefing letter it is listed that the letter/report of Dr Richardson of 20 June 2017 was provided. This document is located at Exhibit 1 T29 pp. 167 – 168.
Second, as Comcare explained in Respondent’s Submissions in Reply (RSR) at para 1.3, in the list of documents provided (Exhibit 7 par 2.1) there is a reference to Summonsed records of “Queensland Combined Orthopaedic Specialists” (para 2.1.39), which is the name of the Practice where Dr Richardson consults. In short, Dr Allen was provided with the relevant reports of Dr Richardson. The misapprehension of the Applicant is understandable as at subparas 2.1.1 – 2.1.37 there is an extensive list of documents contained in the T Documents including a number of medical reports and the only reference to Dr Richardson is at subpara 2.1.24.
Further, when Comcare sought a further report from Dr Allen on 2 February 2021 (Exhibit 9), the briefing material included the reports of Dr Richardson of 20 March 2019 (para 2.1.k), 21 June 2019 (para 2.1.s), 10 July 2019 (para 2.1.l), 23 January 2020 (para 2.1.w) and 14 May 2020 (para 2.1.y).
In short, Dr Allen’s reports of 9 December 2019 and 11 February 2021 were prepared with all of the extant reports of Dr Richardson being provided.
The material before the Tribunal does not support the Applicant’s submission that Dr Allen was not provided with sufficient material to make informed medical conclusions. On the contrary, the material before the Tribunal suggests that Dr Allen was given copious material and, in particular, by the time of his final two reports, all the relevant material of Dr Richardson.
When Dr Allen was cross-examined by the Applicant about the fact that he was not briefed in 2018 with Dr Richardson’s letters/reports, he answered as follows – Transcript (Tr.) 21.6.2021 p. 23:
“I have subsequently reviewed all of Mark Richardson’s reports in some detail, and they don’t cause me to change any of my previous opinions.”
The Applicant also submits that the legal representatives of Comcare “purposely left out information, medical reports which were important to the Applicant and important in providing the true nature of the injuries.” – AOCS para 144.
There is no evidence before the Tribunal that either Comcare or its legal representatives intentionally left out information when briefing Dr Allen. As explained above, Dr Allen was provided in December 2019 and February 2021 with all relevant letters and reports generated by Dr Richardson. For the record, the material presented suggests that when briefing and liaising with Dr Allen, both Comcare and Sparke Helmore Lawyers acted appropriately and professionally.
The next issue raised by the Applicant was that Dr Allen refused to review important documents he brought to the consultation.
The Tribunal had the benefit of this contention being ventilated in the cross-examination of Dr Allen. The following exchange occurred between the Applicant and Dr Allen – Tr. 21.6.2021 p. 24:
“..Were you aware Comcare told Mr Campion to bring any x-rays or other medical reports to the medical appointment?---That’s the usual – that’s what people are usually told to do. Of course I’m not a party to that, I just simply receive the patient as they come with what they’ve brought, yes.
Is it correct that Mr Campion brought a number of reports relating directly to his case as outlined by Comcare; however, you refused to take any of these reports?---No, that would not be the case, Mr Campion. I don’t refuse to take reports. When patients present me with reports, unless I have them duplicated or already present and they’re relevant, I will look at them.
Because you went on to say, is it correct that you, Dr Allen, told me, ‘I already have all the information I need,’ and refused to take the reports, even without looking at them?---No, that’s not true.
Okay?---It defies logic. Why would that serve the process of preparing a medical report?”
It was clear to the Tribunal that the Applicant felt that he had been badly treated by Dr Allen and that Dr Allen had failed to properly take into consideration material that he had brought to the consultation. In short, the Applicant felt that Dr Allen had a conscious or unconscious bias against him and Dr Allen’s reports were tainted by that bias. Further, that when considering the reports of Drs Richardson and Allen, for these reasons, amongst others, the Tribunal should prefer the conclusions of Dr Richardson.
Having carefully observed both the Applicant and Dr Allen, it was tolerably clear to the Tribunal that Dr Allen was somewhat abrupt and, at times, dogmatic in his opinions. No doubt for a person who was in pain and anxious to present their point of view, the Applicant may have been affronted by the blunt and clinical approach of Dr Allen.
However, the issue before the Tribunal is not the “bedside manner” of a medical expert, but whether that expert has the requisite expertise, has considered the relevant material before them and has approached the task required in an objective and professional manner.
The Tribunal has no reason to doubt Dr Allen’s testimony about taking into consideration the material before him. As he quite properly testified, it defies logic that he would have unilaterally refused to peruse relevant material brought to the consultation by the Applicant.
It is not to the point whether Dr Allen treats patients with “an air of superiority”, it is, however, relevant whether Dr Allen has approached the task of assessing the Applicant’s condition with professionalism and objectivity.
There is no material before the Tribunal that casts doubt on either the professionalism or objectivity of Dr Allen.
The Tribunal has been assisted by the parties presenting in written form their main contentions. The documents outlined below have been of assistance to the Tribunal:
(a)Applicants’ Statement of Facts, Issues and Contentions - Exhibit 11;
(b)Applicant’s Outline of Closing Submissions – AOCS;
(c)Respondent’s Amended Statement of Facts, Issues and Contentions - Exhibit 5;
(d)Respondent’s Outline of Closing Submissions – ROCS; and
(e)Respondent’s Submissions in Reply – RSR.
The Tribunal will consider each of the Applications in turn.
Application 2019/2758 – ‘aggravation of osteoarthritis – localised – knee (right)’ and ‘aggravation of osteoarthritis – localised – ankle or foot (left)’
Aggravation of osteoarthritis – right knee
Comcare contends (ROCS para 43) that by 12 February 2019 the Applicant ceased to suffer the effects of his 19 July 2013 accident and that his current right knee symptoms are wholly attributable to his pre-existing advanced degenerative osteoarthritis of his right knee.
Before turning to the diagnoses of Drs Allen and Richardson, it is important to deal with the condition of the Applicant’s right knee and left foot prior to the 2013 incident.
Dr Allen made the following observations in the first of his October 2018 reports – Exhibit 1 T43 p. 244:
“With regard to the right knee, Mr Campion appears to have sustained a meniscal injury at the age of 18 and underwent an open arthrotomy and partial meniscectomy at that time. In line with the natural history of open medial meniscectomy he has progress on to develop degenerative change in the medial compartment of the right knee.”
A perusal of the other medical reports also highlights a reference to the impact of the right knee injury suffered when he was a teenager.
The Tribunal has also been provided with radiological reports of the Applicant’s right knee performed prior to 2013.
In a report dated 18 June 2009, Dr Petroff noted that the Applicant had a previous partial meniscectomy and outlined the findings of the x-ray he performed – Exhibit 4 ST6 p. 967:
“There is degenerative change in all knee joint articular compartments with most severe involvement of the patellofemoral compartment. There is also chronic traction spurring at the quadriceps tendon insertion into the superior patella….”
On 4 August 2009 the Applicant underwent an MRI of his right knee. The radiologist, Dr C. Campbell made these findings – Exhibit 4 ST3 p. 693:
“Severe arthritis in the medial compartment of the joint and involving the medial facet of the patella where there is high-grade cartilage loss, subchondral oedema and cysts. The partial medial meniscectomy is noted. There was no lateral meniscal tear.”
Turning now to the medical reports, Dr Reilly first examined the Applicant on 23 July 2013, shortly after the 2013 incident. In a letter dated 23 July 2013 to Dr Angel she made these observations – Exhibit 4 ST4 p. 704:
“He does have a significant past history with this right knee with having two open partial meniscectomies many years ago. He had no symptoms inbetween times but did have a flare up about five years ago. He also recalls having a HCLA to the right knee 18 months ago with a good result and has had no problems since until this injury.”
Dr Reilly also diagnosed significant osteoarthritis – Exhibit 4 ST4 p. 704:
“Recent x-rays show significant medial and patellofemoral osteoarthritis but there is possibly a loose patella articular fragment on the skyline view. His old MRI’s from four years ago show the pre-existing arthritis.”
In a form completed by the Applicant in June 2017 he stated that he had two knee operations in 1977 and 1978 – Exhibit 2 ST5 p. 722.
Next, Dr Ganko in his report in 2015 observed – Exhibit 1 T20 p. 102:
“With respect to his right knee, he had surgery on his right knee aged 18. He had a typical scar over the medial aspect of the right knee and said that he had some gristle removed from his knee. Based on the location of the scar and his description, I expect that he had a medial meniscectomy at that time.”
It should be noted that Dr Ganko opined that the Applicant’s “past history was significant” – Exhibit 1 T20 p.102.
Dr Doneley made similar observations in 2015. In his report of 5 October 2015 he stated – Exhibit 1 T21 p. 122:
“He had previously undergone an open arthrotomy procedure to the right knee at the age of 18 with medial meniscectomy performed following an injury sustained whilst playing basketball. In addition, Mr Campion has had a prior flare of right knee pain (2009) following a workplace injury. He stated that this has resolved following the injection of a steroid and local anaesthetic solution to the knee.”
Dr Doneley also made some observations about the previous condition of the Applicant’s left foot – Exhibit 1 T21 p. 123:
“Mr Campion stated that he originally injured his left foot in the year 2000. He stated that he fell off a ladder and landed heavily on the left foot. He stated that he sustained three fractures of the hind foot (most likely calcaneal fractures).
Mr Campion underwent non-operative management for some weeks but developed persistent hind foot pain at the lateral aspect of the left foot. He was referred to an orthopaedic surgeon, Dr Greg Witherow in Perth and a subtalar fusion using iliac crest bone graft was performed with a single axial screw being used for fixation. The screw was subsequently removed in a second surgical procedure after satisfactory fusion had occurred.
Mr Campion stated that following surgery to remove the left foot screw, he found that the left foot settled well. He stated that although he could not run he could still play tennis and could perform site visits where he was required to walk on uneven and unsteady ground.”
In the part of the report headed “Past Medical History”, Dr Doneley made these observations – Exhibit 1 T21 p. 125:
“Mr Campion has significant past orthopaedic medical history. He initially hurt his right knee as a teenager and underwent an open arthrotomy procedure (right medial meniscectomy). He previously had a workplace injury to the right knee (2009). Mr Campion stated that he recovered from this workplace injury well following a steroid and local anaesthetic injection. A diagnosis of right knee medial compartment osteoarthritis was made at the time of his 2009 injury.
Regarding the left ankle, Mr Campion has a past history of a calcaneal fracture following a fall from a ladder. This was managed non-operatively in the first instance and was then managed (due to ongoing hind foot pain) with a left subtalar joint fusion. This fusion procedure was successful at producing a bony fusion and Mr Campion stated that the left ankle/foot settled significantly enough for him to be able to perform his normal workplace duties (including field work on uneven ground) as well as pursue certain sporting activities such as playing tennis.”
Dr Doneley was of the opinion that the Applicant’s right knee osteoarthritis and left hind foot calcaneocuboid joint arthritis were attributable to the accidents he suffered at the age of 18 and in the year 2000 respectively – Exhibit 1 T21 p. 129:
“I would consider that Mr Campion’s right knee osteoarthritis is directly attributable to the injury sustained at age 18 which required open arthrotomy and debridement of the knee. Mr Campion’s excessive body weight has also aggravated this condition. I believe that this condition was fully established prior to July 2013 but became symptomatically worse as a result of his workplace injury of July 2013.
I believe that Mr Campion’s left hind foot calcaneocuboid joint osteoarthritis has arisen as a natural sequelae to surgical fusion of the talocalcaneal joint performed in 2000 as a treatment for a calcaneal fracture. I believe that this has become more clinically apparent in the last 12 months as a result of natural progression of the disease as well as excess weight bearing through the left lower limb as a consequence of the right lower limb injury. Mr Campion’s excess body weight also contributes to symptomology in the left hind foot.”

All three specialists were clear that the primary cause of the Applicant’s left foot/ankle problems was the 2000 accident and the weight bearing on his left foot caused by his right knee injury was a temporary aggravation. Indeed, Dr Day opined in March 2016 – Exhibit 1 T24 p. 150:
“His current conditions are related almost entirely to the effects of the earlier injuries, rather than the aggravation.”
Dr Allen opined in his 9 December 2019 report that the Applicant had not suffered an aggravation of osteoarthritis in his left foot/ankle – Exhibit 8. However, the question before the Tribunal is not whether the Applicant’s osteoarthritis has been made worse, but rather whether the weight bearing on his left foot/ankle has caused an increase in the pain he was experiencing.
The Tribunal accepts that as a result of the right knee injury the Applicant placed weight on his left foot resulting in him experiencing heightened levels of pain and discomfort resulting in the aggravation of his underlying injury. However this aggravation resolved itself at some time thereafter, and certainly by 12 February 2019. Looked at from this perspective, it is tolerably clear that each of the views of the specialists can be reconciled.
Application 2019/2759 - Small tear of the posterior horn of the medial meniscus
This Application relates to an incident on 17 May 2017 when the Applicant, whilst walking on crutches at his place of employment, tripped and placed extra weight on his right knee – Exhibit 1 T30 p. 171.
Comcare makes the following contentions – ROCS para 90:
(a)the small tear of the posterior horn of the medial meniscus was not a separate injury that arose out of, or in the course, of the Applicant’s employment, but formed part of the natural progression of the degenerative osteoarthritis of the right knee;
(b)the correct diagnosis of the injury is ‘symptomatic exacerbation of the osteoarthritis in the right knee”;
(c)a symptomatic exacerbation does not amount to an injury for the purposes of the Act, and Comcare should never have accepted liability for this injury; and
(d)alternatively, an injury suffered by the Applicant on 17 May 2017 resolved by (at least) 12 February 2019.
Before turning to the opinions expressed by Drs Allen and Richardson, it is important to consider the MRI that was taken of the Applicant’s right knee on 22 May 2017. Drs te Kloot and Baulch who performed the MRI reached the following conclusions – Exhibit 1 T27 p. 163 – 164:
“Conclusion
No new lateral meniscus injury. Extrusion and degeneration of the body segment medial meniscus with a new, small radial tear of the free edge posterior horn.
Severe medial and patellofemoral compartment osteoarthritis has not significantly progressed since MRI 26/07/13.
Large joint effusion, no loose intra-articular body.
The cruciate and collateral ligaments are intact.”
(emphasis in the original)
In his report of 20 June 2017, Dr Richardson opined that the Applicant suffered “a torsional injury to his right knee at work on the 18^th May 2017.” Following this injury the Applicant “developed a significant amount of swelling overnight with difficulty mobilising” – Exhibit 1 T29 p. 167.
Dr Richardson referred to the MRI and observed that the “medial compartment demonstrated significant bone bruising involving his medial femoral condyle and anteromedial tibia” – Exhibit 1 T29 p. 167.
Reference was also made to a small tear involving the posterior horn of the Applicant’s medial meniscus.
It will be noted that Dr Richardson did not provide a diagnosis of the small tear of the posterior horn of the medial meniscus. However, in a report dated 20 March 2019 he opined that the Applicant “sustained a further injury on the 17^th May 2017, with a tear involving his medial meniscus” – Exhibit 2 T7 p. 26. Dr Richardson went on to opine that the “further injury that occurred on the 17^th May 2017 is similarly contributory to his current symptoms” – Exhibit 2 T7 p. 26.
In his most recent report of 14 May 2020, Dr Richardson opined that the injury of 17 May 2017 resulted in “a tear involving his medial meniscus” and that this injury and the knee injury of 2013 both are “contributory to the advance nature of his medial and patellofemoral compartment arthrosis” – Exhibit 21.
Dr Allen dealt with the 2017 incident in both of his reports dated 29 October 2018. He opined that the MRI performed on 22 May 2017 “failed to demonstrate any new ligament or meniscal tear” – Exhibit 1 T43 p. 243. Dr Allen again refers to the MRI scan at page 244 but, surprisingly, does not make mention of the radial tear of the posterior horn. Instead Dr Allen opined that the Applicant sustained “an exacerbation of the osteoarthritis of his right knee” but there was “no new meniscal injury” and that the Applicant “simply had a progression of his osteoarthritis in the knee.”
Dr Allen also opined that the aggravation of the osteoarthritis of the Applicant’s right knee brought about by the 2017 incident “would ordinarily be expected to settle within six to 12 weeks”. Any ongoing symptoms are “related to his underlying degenerative changes in his right knee” – Exhibit 1 T43 p. 247.
Dr Allen dealt at length with the tear in his report of 9 December 2019 – Exhibit 8 p. 2:
“In comparison to the previous study, it notes a small radial tear on the free edge of the medial meniscus. Given the extent of the degenerative change in the knee and especially the medial meniscus, the ‘small radial tear’ is considered part and parcel of the degenerative change in the knee and does not constitute a new or acute injury…
I therefore reaffirm that I do not believe that Mr Campion suffered a new ligament or meniscal injury on 17 November 2017 as the morphology of the medial meniscus and its condition on the imaging report of 22 May 2017 is in keeping with the progressive degenerative change in the knee rather than a new injury.”
The Tribunal has been presented with two divergent medical analyses. Dr Richardson opines that the Applicant suffered an injury, namely a tear involving his medial meniscus, which continues to be contributory to his underlying osteoarthritic condition of his right knee, whereas Dr Allen opines that the Applicant did not sustain an injury and the tear is part of ongoing degenerative change.
It is important to determine if, in fact, the Applicant suffered in 2017 a new injury or an aggravation of his underlying osteoarthritis. Dr Allen used in his reports, and during his testimony, various terms, particularly “exacerbation” and “aggravation”. Having regard to previous jurisprudence quoted above, this can cause confusion.
First, the law on what constitutes “aggravation” for the purposes of the Act is clear. Reference can be made to the decision of Gyles J in Australian Postal Corporation v Bessey (2001) 32 AAR 508 as guidance in this regard (at 509):
“It has been well settled by a series of decisions….that if an underlying condition is aggravated, in the sense of being made worse, then any incapacity which results is compensable. On the other hand, if the aggravation is temporary, so that after a time it ceases to have any effect and leaves the underlying condition no worse, then there is no relevant continuing injury causing incapacity.”
His Honour then made this observation (at 509 – 510):
“In the present case, there is no relevant dispute that spondylosis is an ailment, and that when riding a motor bike for mail delivery the spondylosis causes the respondent to experience symptoms (principally pain) which make such work unsuitable, so incapacitating the respondent.
This would require compensation for the period when the symptoms were operative, but would not, without more constitute continuing injury. To constitute continuing injury it would be necessary to go further and find that the work had adversely affected the underlying condition in some way which continue to have an effect.”
It seems tolerably clear to the Tribunal that the 2017 incident did result in a tear of the posterior horn as opined by Dr Richardson. Further, even if that were not the case, then the incident did result in aggravation of the Applicant’s right knee osteoarthritis.
The Tribunal is not satisfied that the 2017 incident has resulted in an ongoing compensable incapacity which continues to be contributory to the Applicant’s arthritic right knee condition. The MRI of 22 May 2017 does not support such a proposition. It clearly shows that the Applicant was then suffering from advanced degenerative osteoarthritis and failed to disclose any new lateral meniscus injury.
The Tribunal accepts the diagnosis of Dr Allen that if there was a new injury (the tear) or the tear constituted an aggravation of the Applicant’s underlying arthritic condition, then that injury or that aggravation should have resolved within a relatively short period and does not have any ongoing operation.
The Tribunal accepts that any effect brought about by the 2017 incident would have ceased no later than 12 February 2019.
As previously noted, Dr Richardson was not called to give evidence, does not explain why the 2017 accident continues to contribute to the Applicant’s condition and does not deal with the impact of the pre-2013 accidents and surgery on the Applicant’s right knee. The Tribunal prefers the opinion of Dr Allen with respect to the effect of the 2017 incident on the Applicant’s current right knee condition.
For the sake of completeness, reference can briefly be made to three Tribunal determinations raised by the Applicant in his AOCS at paras 123 – 124. These determinations were cited in the context of the Applicant denying that there was an evolving nature of diagnoses of his right knee condition, and contending that there was a consistent diagnosis, namely an aggravation of osteoarthritis of the right knee – AOCS para 122.
First, reliance was placed on Rye and Comcare [2020] AATA 4963. The issue for determination by the Tribunal in that matter was whether a knee injury suffered by Ms Rye in the course of a netball competition as part of NAIDOC Week arose out of, or in the course of, her employment. This determination has no relevance to the issues outlined above as the Tribunal accepts that the injury sustained arose out of, or in the course of, the Applicant’s employment.
Second, Mansfield and Comcare [2020] AATA 3917 involved a claim for right lateral epicondylitis affecting Ms Mansfield’s right elbow and forearm as a result of computer mouse use in the workplace. The Tribunal accepted the Applicant suffered from a disease that was contributed to, to a significant degree, by her employment. Conversely on the medical evidence presented, the Tribunal was not satisfied there was degenerative change. This determination, again, is not directly relevant as there is unanimity of medical opinion that the Applicant suffers from degenerative osteoarthritis of his right knee.
Finally, the Applicant refers to Lalliard and Comcare [2019] AATA 5602 where there was a claim for “depression/anxiety”. The Tribunal determined that the Applicant suffered from a disease which was contributed to by her employment to a significant degree. The principles articulated by the Tribunal in this determination, again, do not provide particular assistance for the resolution of Application 2019/2795.
Application 2020/3361 - Aggravation of right medial meniscus tear
Comcare contends (ROCS para 97) with respect to the 5 June 2019 incident, namely the “aggravation of right medial meniscus tear”, “rupture of right knee Baker’s cyst” and “aggravation of osteoarthritis”:
(a)all of the Applicant’s symptoms were attributable to his pre-existing osteoarthritis with extensive degenerative tear in the medial meniscus; and
(b)the incident of 5 June 2019 did not result in any pathological change of his underlying knee condition. The Applicant’s workplace was merely the setting in which he experienced an exacerbation of his pre-existing advanced degenerative osteoarthritis.
Comcare contends that liability should not have been accepted under s 14 for aggravation of right medical meniscus tear. Accordingly, Comcare contends that this aspect of the reviewable decision be set aside and, in substitution, that the Applicant does not suffer from an injury described as “aggravation of right medial meniscus tear” – Exhibit 5 para 5.29.
The Tribunal is therefore presented with both the Applicant and Comcare contesting findings made in the reviewable decision.
The discussion below is predicated on this state of affairs. Insofar as Comcare propounds its position, it relies, implicitly, on the legal principles expounded in Hannaford.
The Full Federal Court in Hannaford held that the Tribunal is empowered to make subsequent findings of fact that are contrary to findings of fact made by previous decision-makers. As Conti J observed (at 273/57) the Act “allows for progressive and evolving decision-making”.
Comcare places reliance on the report of Dr Allen of 11 February 2021 – Exhibit 10. In that report Dr Allen made the following observations – Exhibit 10 p. 4:
“An ultrasound of the right knee has been undertaken on 6 June 2019 and this demonstrated features in keeping with long established degenerative osteoarthritis of the knee. There is no evidence of any traumatic lesion or new material injury that can be ascribed to the recent incident.
An MRI scan of the knee is undertaken on 7 June 2019 and this again demonstrated the well-established degenerative osteoarthritis of the knee with the extensive degenerative tear in the medial meniscus. There is no lesion here that can be ascribed to the incident in June 2019. The changes noted in his knee are entirely degenerative in nature and are not traumatic. The meniscal legion is not a traumatic tear as the mechanism of injury is not in keeping with a traumatic tear and its description does not fit that of an acute traumatic tear. The changes in his meniscus are longstanding and degenerative in nature.
Once again Mr Campion has had an expression of symptoms from his advanced degenerative osteoarthritis in his knee or, at the very most, may have had a temporary exacerbation of symptoms.”
Dr Allen went on to opine that there was no objective evidence to support the proposition that the Applicant has suffered an aggravation of his right knee osteoarthritis – Exhibit 10 p. 4.
Dr Allen concluded by stating – Exhibit 10 p.5:
“At the utmost there may have been a temporary exacerbation of symptoms but in the balance of probabilities the diagnosis is simply of an expression of symptoms from existing osteoarthritis of the knee.”
Dr Richardson’s analysis of the MRI scan was slightly different – Exhibit 2 T12 p. 33:
“The recent MRI scan demonstrated advanced medial and patellofemoral compartment osteoarthritis. On balance, there was evidence of a rupture of a Baker’s cyst involving the popliteal fossa that is likely to account for his posterior pain. There was fluid tracking distally into the calf musculature consistent with this diagnosis. There was no new pathology in the knee joint itself apart from his advanced osteoarthritis.”
As previously noted, Dr Richardson’s diagnosis of a rupture of a Baker’s cyst is at odds with the Ultrasound report of 6 June 2019 prepared by Dr Tanya Wood. Dr Wood made these comments in her ultrasound report – Exhibit 2 T10 pp. 29 – 30:
“Two Baker’s cyst present but neither demonstrated features suggestive of rupture.
The bulging medial meniscus, articular surface irregularity and suprapatellar recess effusion are likely to be degenerative.”
(bold in the original)
Further, Dr Richardson provided the following information to Ms Kym McMaster who prepared an Early Intervention Assessment Report on the Applicant on 19 July 2019 – Exhibit 4 ST1 p. 9:
“Dr Richardson indicate[s] that Mr Campion was expected to show a full recovery from his ruptured Baker’s Cyst diagnosis within 2-3 weeks, and indicated no additional surgery or treatment interventions would be required for Mr Campion to achieve a full recovery from this recent injury.”
In short, even if there had been a rupture of a Baker’s cyst, the effect was both temporary and minimal.
In this matter the Tribunal has before it an unequivocal ultrasound report that states there has not been a rupture of the Applicant’s two Baker’s cysts.
Dr Richardson who, while opining there was a rupture of a Baker’s cyst, nonetheless opined that there “was no new pathology in the knee joint apart from…advanced osteoarthritis” and a diagnosis that the Applicant would fully recover from the Baker’s cyst rupture within two to three weeks.
The evidence before the Tribunal supports Dr Allen’s diagnosis that the 5 June 2019 incident did not result in an aggravation of the Applicant’s underlying knee condition, but merely resulted in a temporary exacerbation of symptoms. The objective evidence before the Tribunal does not support the proposition that the 5 June 2019 incident resulted in a rupture of the Applicant’s Baker’s cysts, and even if there was such a rupture, Dr Richardson opined that any adverse impact would dissipate within weeks.
The Tribunal has before it a report from Dr Allen in which he opines without qualification that the 5 June 2019 incident was simply “an expression of symptoms from existing osteoarthritis of the knee” – Exhibit 10 p. 5.
As Dr Richardson did not give evidence it was not possible to test his diagnosis. However, Dr Allen did give evidence and did not resile from his diagnosis. The Tribunal, in these circumstances, and taking into account the 6 June 2019 ultrasound report, prefers the diagnosis of Dr Allen.
This incident falls squarely within the principles enunciated by the High Court in May. It is not the case that each time a worker feels unwell or experiences pain that there is an “injury” or an aggravation of an injury for the purposes of the Act. As Kitto J explained in Federal Broom Company, in order for there to be an aggravation (or, in that matter, an exacerbation) of an injury or disease, there must be an increase or intensification of symptoms. Each matter has to be decided on the facts and medical evidence presented, but in this matter according to Dr Allen and Dr Richardson there was no new pathology caused by the incident and further, according to Dr Allen, there was simply an expression of symptoms from the existing osteoarthritis condition. The Tribunal agrees with Comcare’s contention that the Applicant’s workplace was merely the setting in which he experienced a temporary exacerbation of his knee condition. Having regard to Dr Allen’s diagnosis, any resulting pain caused by the incident did not constitute an “aggravation” of the Applicant’s underlying osteoarthritis of the right knee.
The Tribunal therefore finds that the preferred medical evidence does not support the finding of liability under s 14. To the extent that the reviewable decision is consistent with this finding it is affirmed. To the extent that the reviewable decision is inconsistent with this finding, it is set aside. The Tribunal accepts that this is an instance where it is appropriate to make a “Hannaford” finding.
Application 2020/7585 - Aggravation of right medial meniscus tear/aggravation of osteoarthritis
This Application concerns the train incident on 11 February 2019.
The Applicant relies on the medical reports of Dr Richardson and contends that the train incident of 11 February 2019 was a work injury and that the weight of medical evidence supports the proposition that Comcare is liable to pay compensation for an aggravation to the right knee. It is contended that the Tribunal should favour the diagnoses of Dr Richardson over Dr Allen, as Dr Richardson is an Orthopaedic Surgeon who specialises in knee surgery, whereas Dr Allen does not specialise in this area at all – Exhibit 11 paras 3.51 – 3.59.
Comcare contends, first (ROCS para 106), that the Applicant did not suffer an aggravation of the osteoarthritis of the right knee because there was no pathological change to the Applicant’s underlying osteoarthritis as a result of that activity. Further, it also contended that the right knee symptoms experienced by the Applicant were attributable to his pre-existing advanced osteoarthritis – ROCS para 105.

Comcare contends, second, that even if some pathological change was identified from this incident, nonetheless Comcare is not liable to pay compensation as it was not significantly contributed by the Applicant’ employment as it occurred whilst he was travelling to work, and thus was not sufficiently connected to his employment – ROCS para 110.
In support of these contentions, Comcare relies on Dr Allen’s report of 11 February 2021 – Exhibit 10.
Dr Allen made the following observations – Exhibit 10 p. 2:
“From the documentation supplied I note that Mr Campion made a subsequent claim for injury to his right knee which occurred on 11 February 2019.
By that stage Mr Campion already had advanced established osteoarthritis in his right knee as documented in my previous report. The clinical and radiographic evidence confirmed the extensive degenerative change in that knee.
Mr Campion asserted that he hurt the knee whilst on the train to work. There is no specific accident or injury accounted but he reported that the knee became uncomfortable during the train journey and he ascribed it to the seating position. Given the extent of degenerative change in his knee this is not unexpected.
He was seen by his doctor and in correspondence dated 11 February2019 Dr Paul Angel note that ‘he has developed an exacerbation of his right knee pain.’ A referral was made.
An ultrasound and X-ray of his knee undertaken on 14 February 2019 again demonstrated the already existing degenerative osteoarthritis of the knee with no evidence of any new material change. This imaging confirms the diagnosis of an exacerbation and not an aggravation.
Furthermore, MRI scan of 27 February 2019 also again confirmed the established osteoarthritis in his knee without evidence of any new material lesion to constitute an aggravation.
On 20 March 2019 he was seen by his orthopaedic surgeon who also confirmed the diagnosis that there has been ‘an exacerbation of symptoms’ (not an aggravation).
Mr Campion has long established osteoarthritis of his knee from which he suffers regular symptoms. He had an expression of symptoms whilst on the train and this is insufficient to assert that there has been a new injury. There is no new material change to the knee. At most there may have been a temporary exacerbation of his condition but on the balance of probabilities his presentation was simply that of an expression of symptoms from his already established underlying disease.”
Dr Allen opined that the Applicant had not suffered from a sudden pathological change and, specifically, there had been no aggravation of right meniscal tear – Exhibit 10 p. 3.
Dr Richardson provided a report dated 10 July 2019 and provided the following diagnosis – Exhibit 2 T17 p. 53 – 54:
“The injury mechanism in February 2019 could be considered an aggravation of his pre-existing osteoarthritis. It is, however, unlikely to change his right knee condition from how it had been previously… The aggravation of his pre-existing osteoarthritis is likely to settle approximately 6 weeks following the initial injury. Any ongoing symptoms are likely to be related to the underlying pre-existent condition.”
The Tribunal agrees with Comcare’s contention (ROCS para 108) that the medical evidence only supports the proposition that the Applicant suffered a temporary exacerbation of symptoms and there is no evidence of pathological change.
The Applicant faces two problems with the evidence before the Tribunal.
First, there is no evidence that the incident of February 2019 made the Applicant’s underlying osteoarthritis worse, or that, to put it another way, the pain symptoms he experienced became worse other than, perhaps, for a very short time. As previously explained, an aggravation of an existing injury or ailment can be found despite there not being any pathological change. This is sometimes the case when an incident results in a worker suffering increased pain. However, the jurisprudence in this area supports the proposition that there must be more than a temporary expression of symptoms from an extant injury or ailment. Compensable pain symptoms require the intensification or increase in levels of pain which make the existing injury or ailment worse, albeit that in due course the levels of pain may dissipate and the underlying condition stabilises.
However, there is a second and perhaps more fundamental problem. There is no link between the onset of pain symptoms brought about by this incident and the performance of any employment activities by the Applicant. If, in fact, the Applicant experienced an increase in pain symptoms whist travelling on a train to work, it cannot be said that the aggravation arose out of, or in the course of, the Applicant’s employment.
The deemed journey provisions which were a feature of previous workers’ compensation legislation were abolished by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 with effect from 13 April 2007.
Subsection 6(1C) of the Act now provides:
“….travel between the employee’s residence and the employee’s usual place of work is taken not to be at the direction or request of the Commonwealth or a licensee.”
Subsection 6(1)(d) now provides:
“(1) Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained…
(d) while the employee was, at the direction or request of the Commonwealth or a licensee, travelling for the purpose of that employment…”
The cumulative effect of these two provisions is that a worker travelling from home to work is deemed not taken to be doing so at the direction or request of the employer. In order for compensation to be payable there must be specific direction or request by the employer to the worker to travel to work.
The Tribunal was provided with a file note dated 4 July 2019 prepared by Ms Priscilla Chiswell and is headed “ACMA response – Claim for workers compensation – Michael Campion – Date of injury: 11/2/19”. Ms Chiswell made the following notes – Exhibit 3 T13 p. 44:
“Michael submitted an incident report to the AMCA on 11/2/19... Michael was travelling by train from his residence to his usual workplace the injury occurred.
Priscilla emailed Michael on 12/2/19 acknowledging receipt of his incident report and noted that the report relates to a journey to work. As such the report is not required as part of our incident and hazard report process and will not be recorded as a workplace hazard report. However, I have placed a copy of your report on your compensation file and sent a copy to Comcare for their information.”
The Applicant contends that his usual workplace is his home, and had been for a considerable period prior to the train incident. In his request for reconsideration, the Applicant made the following submission – Exhibit 3 T19 p. 65:
“But under Comcare’s Jurisdictional Policy Advice No 2007/8… it clearly states normal everyday commuting isn’t covered but my usual workplace was my home and had been for a long time due to my work injuries therefore a trip to the office was not a regular commute and in fact was only on special occasions due to my injury…”
The Tribunal accepts that the Applicant was, at the time of the train incident, primarily working from home and also accepts that he only worked from the office when there was a need for him to do so. In that regard, the Tribunal has considered the material contained in Appendix 3 of Exhibit 11. However, there is no evidence before the Tribunal that on the day of the railway incident there was either a direction or request by his employer that he had to attend at the office. Journey claims are no longer part of the Act, and in order for there to be a compensable claim for a worker who has injured themselves travelling from home to work, there must be evidence before the tribunal of fact that the journey in question was either specifically directed or requested by the employer. Questions of frequency of travel between home and work are, therefore, not relevant. The focus of inquiry is not whether a worker was travelling to attend work, because that is the obvious threshold issue, but, further, whether that journey was specifically directed or requested by the employer. It is a higher threshold, and in this instance, there is no evidence before the Tribunal that satisfies this requirement.
For the reasons outlined above, the Tribunal determines that if any “injury” was sustained by the Applicant whilst on a journey to work, it was not sustained in the course of his employment or significantly contributed to by his employment. Further, the Tribunal accepts the diagnoses of Dr Allen and Dr Richardson that no pathological change arose out the train incident, and the Tribunal accepts Dr Allen’s diagnosis that any pain experienced was an expression of pain symptoms in existence from the Applicant’s longstanding and degenerative osteoarthrosis condition of his right knee.
Finally, the Applicant drew the Tribunal’s attention (at AOCS paras 134 – 135) to Stathopoulos and Comcare [2018] AATA 651 and Mustica and Comcare [2019] AATA 5426; 172 ALD 564. Neither of these determinations of the Tribunal are of assistance in this matter. Stathopoulos concerned a worker suffering a head injury in a carpark leased by her employer while in Mustica the worker was injured prior to commencing his journey home. In short neither of these determinations involved an injury while a worker was in the process of travelling to or from work.
DECISION
For the reasons outlined above, the Tribunal determines
(a)the reviewable decision of 26 April 2019 (2019/2758) is affirmed;
(b)the reviewable decision of 26 April 2019 (2019/2759) is affirmed;
(c)the reviewable decision of 29 May 2020 (2020/3361) is set aside insofar as liability pursuant to s 14 is accepted, and in lieu a decision rejecting liability is substituted, and affirmed insofar as liability pursuant to s 14 is rejected; and
(d)the reviewable decision of 2 September 2020 (2020/7585) is affirmed.

I certify that the preceding 310 (three hundred and ten) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso

...........................[SGD]..........................
Associate
Dated: 19 November 2021

Date of hearing: 21 June 2021

Date final submissions received: 26 July 2021

Counsel for the Respondent: Kate Slack, Sparke Helmore

Date of hearing:	21 June 2021
Date final submissions received:	26 July 2021
Counsel for the Respondent:	Kate Slack, Sparke Helmore