Chick and Comcare (Compensation) - [2023] AATA 1969

Chick and Comcare (Compensation) [2023] AATA 1969 (5 July 2023)
Division:GENERAL DIVISION
File Number(s): 2019/5725
Re:Dana Chick
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:The Hon. Matthew Groom Senior Member
Date:5 July 2023
Place:Hobart

The reviewable decision dated 2 September 2019 is set aside and in substitution the Tribunal makes the following decision:
(a)The applicant suffers from a right knee injury and subsequent aggravation causing symptomatic exacerbation of early medial compartmental osteoarthritis as a result of the incidents occurring at her work on 26 September 2017 and November 2017.
(b)From the date of the injury to the present date the applicant requires reasonable medical treatment in respect of the injury for the purpose of section 16 of the Act.
(c)From the date of the injury to the present date the applicant suffers incapacity for work as a result of the injury for the purpose of section 19 of the Act.
(d)From the date of the injury to the present date the respondent must pay to the applicant:
(i)the costs of all reasonable medical and related treatment expenses incurred in respect of injury pursuant to section 16 of the Act.
(ii)weekly payments of compensation in respect of incapacity for work for all periods pursuant to section 19 of the Act.

(e)The respondent must pay the applicant's reasonable costs and disbursements in respect of these proceedings pursuant to section 67 of the Act.

...[sgn].....................................................................
The Hon. Matthew Groom, Senior Member
Catchwords
Workers Compensation (Cth) - Right knee partial dislocation injury - Early medial compartmental osteoarthritis – Whether injury arose out of or during the course of employment – Previously accepted injury – Whether employment was a significant contributing factor – Decision under review set aside and substituted
Legislation
Safety, Rehabilitation and Compensation Act 1988
Cases
Bromham and Comcare (Compensation) [2017] AATA 1515
Canute v Comcare (2006) 226 CLR 535
Comcare v Nichols [1999] FCA 209 at
Commonwealth v Borg (1991) 20 AAR 299
Re Quinn and Australian Postal Corporation (1992) 15 AAR 519
Zdziarski v Telstra Corporation Limited [2015] FCA 207
REASONS FOR DECISION
The Hon. Matthew Groom Senior Member
INTRODUCTION

This matter involves an application for review of a decision of a review officer of the respondent dated 2 September 2019 (reviewable decision) which varied an earlier decision of a delegate of the respondent dated 8 May 2019 (original decision). The original decision determined that as at 29 January 2018 the respondent ceased liability of medical expenses and incapacity payments in respect of the applicant’s previously accepted injury to the patellofemoral joint of the applicant’s right knee and an aggravation of the injury under sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Act) (SRC Act). The reviewable decision varied that decision by finding that the respondent’s liability ceased as at 7 February 2018.
BACKGROUND
The applicant commenced her employment with the Department of Home Affairs in 2005. She worked as an APS3 Australian Border Force Officer.
On 7 December 2017 the applicant lodged a claim for compensation in respect of an injury to her right knee which she claimed occurred on 26 September 2017 while participating in a use of force training course.
The applicant’s claim was initially declined however the respondent undertook an “own motion” reconsideration of her claim.
On 30 April 2019 the respondent accepted the applicant’s claim for an injury to the patellofemoral joint of her right knee as a consequence of the incident occurring on 26 September 2017. The respondent also accepted a further claim by the applicant for an aggravation of the same injury as a result of walking up the gangway in November 2017.
On 8 May 2019 the respondent determined that it had no present liability to pay compensation to the applicant for medical expenses or incapacity in respect of the previously accepted injury. The basis for the determination was the outcome of an MRI on 29 January 2018 which the respondent claims demonstrated a pre-existing problem in the medial compartment of the applicant’s right knee and that there was no specific injury to the patellofemoral joint as previously claimed.
On 27 May 2019 a request was made for the respondent to re-consider the determination.
On 2 September 2019 a senior review officer of the respondent decided to vary the 8 May 2019 decision by finding that the applicant has no present entitlement to either medical treatment or incapacity payments as at 7 February 2018 rather than 29 January 2018.
On 10 September 2019 application was made for a review of the decision by the Administrative Appeals Tribunal (AAT).
On 22 January 2021 the Tribunal, differently constituted, decided to affirm the 2 September 2019 decision.
An application was subsequently made to the Federal Court to overturn the decision of the Tribunal on appeal.
On 26 August 2021 the Federal Court ordered by consent that the decision of the Tribunal of 22 January 2021 be set aside and remitted back to the AAT for determination. That is the matter presently before this Tribunal.
The parties have consented to the Tribunal determining the matter on the basis of the evidence previously heard. A hearing was held on 27 January 2022 to hear oral submissions from the parties in respect of the matter. The applicant was represented by Mr Hilliard of counsel. The respondent was represented by Mr Wallace of counsel.
The materials before the Tribunal included:
(i)T-documents 2019/5725
(ii)T-documents 2018/1874
(iii)Briefing letter to Dr Sharman dated 7 November 2019
(iv)Medical report of Dr Sharman dated 26 March 2020
(v)Witness statement of Dana Chick dated 11 September 2020
(vi)Excerpts from the summonsed records of Dr Sharman (pages 8 and 6)
(vii)Excerpts from the summonsed records of Newstead Medical Centre (the records recorded on 9 December 2019)
(viii)Excerpt from the summonsed records of Newstead Medical Centre (page 18)
(ix)Newstead Medical Centre clinical note dated 1 February 2017
(x)Newstead Medical Centre clinical note dated 3 August 2015
(xi)Referral to Dr Graham dated 8 December 2015
(xii)Newstead Medical Centre clinical note dated 8 December 2015
(xiii)Also before the Tribunal were the Transcripts of the previous hearings including:
(xiv)16 September 2020 where Ms Chick and Dr Sharman gave evidence for the Applicant
(xv)17 September 2020 where Dr Doig and Dr Stanley-Clarke gave evidence for the Respondent
LEGISLATIVE PROVISIONS
The relevant legislative provisions are set out in the Act including those set out below:
Section 14 provides:
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
(2) Compensation is not payable in respect of an injury that is intentionally self-inflicted.
(3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.
Section 16 provides:
(1) 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.
(2) Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.(3) For the purposes of subsection (1), the cost of medical treatment shall, in a case where the treatment involves the supply, replacement or repair of property used by the employee, be deemed to include any fees or charges paid or payable by the employee to a legally qualified medical practitioner or dentist or other qualified person for a consultation, examination, prescription or other service reasonably required in connection with that supply, replacement or repair.
(4) An amount of compensation payable by Comcare under subsection (1) is payable:
(a) if the employee has paid the cost of the medical treatment--to, or in accordance with the directions of, the employee; or
(b) if the employee dies before the compensation is paid and without having paid the cost referred to in subsection (1) and another person, not being the legal personal representative of the employee, has paid that cost--to that other person; or
(c) in any other case--to the person to whom the cost is payable.
(5) Where a person is liable to pay any cost referred to in subsection (1), any amount paid under subsection (4) to the person to whom that cost is payable is, to the extent of the payment, a discharge of the liability of the first-mentioned person.
(6) Subject to subsection (7), if:
(a) compensation in respect of the cost of medical treatment is payable; and
(b) the employee reasonably incurs expenditure in doing either or both of the following:
(i) making a necessary journey for the purpose of obtaining that medical treatment;
(ii) remaining, for the purpose of obtaining that medical treatment, at a place to which the employee has made a journey for that purpose;
Comcare is liable to pay compensation to the employee:
in respect of the journey--of an amount worked out using the formula:
Specified rate per kilometre times Numbers of kilometres travelled
where:
specified rate per kilometre means such rate per kilometre as the Minister specifies, by legislative instrument, under this subsection in respect of journeys to which this subsection applies.
numbers of kilometres travelled means the number of whole kilometres Comcare determines to have been the reasonable length of such a journey as it was necessary for the employee to make (including the return part of the journey).
(d) in respect of the employee remaining for the purpose of obtaining the treatment--of an amount equal to the expenditure so reasonably incurred in remaining for that purpose.
(7) Comcare is not liable to pay compensation under subsection (6) unless:
(a) the reasonable length of such a journey as it was necessary for the employee to make (including the return part of the journey) exceeded 50 kilometres; or
(b) if the journey made by the employee involved the use of public transport or ambulance services--the employee's injury reasonably required the use of such transport or services regardless of the distance involved.
(8) The matters to which Comcare shall have regard in deciding questions arising under subsections (6) and (7) include:
(a) the place or places where appropriate medical treatment was available to the employee;
(b) the means of transport available to the employee for the journey;
(c) the route or routes by which the employee could have travelled; and (d) the accommodation available to the employee.
(9) Where:(a) an employee suffers an injury;
(b) a person has reasonably incurred expenditure in connection with the transportation of the employee, or, if the employee has died, of his or her body, from the place where the injury was sustained to a hospital or similar place, or to a mortuary; and
(c) the employee, or the legal personal representative of the employee, does not make a claim for compensation in respect of that expenditure;
Comcare is liable to pay compensation to the person who incurred the expenditure of an amount equal to the amount of that expenditure.
Section 19 provides for injuries resulting in incapacity and provides that:
(1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
(2) Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula
NWE minus AE
Where:
"AE" applies in relation to the whole of that particular week and has the same meaning as in subsection (2).
"NWE" is the amount of the employee's normal weekly earnings.
"NWH" means the number of normal weekly hours worked by the employee before his or her injury.
"X" is the total of the hours in that particular week:
(a) that would have counted towards the employee's normal weekly hours (whether those hours are worked or not); and
(b) that elapse before the total number of hours worked out in accordance with paragraph (2A)(b) exceeds 45 times the employee's normal weekly hours.
(2D) For the purposes of paragraph (2B)(b), the compensation payable in respect of the part of the week to which that paragraph refers is worked out using the formula:
Where
NWH minus X over NWH times Reduced rate compensation entitlement
where:
"NWH" means the number of normal weekly hours worked by the employee before his or her incapacity.
"reduced rate compensation entitlement" is the rate of compensation that would have been applicable for the whole week had subsection (3) applied throughout the whole week.
"X" is the total of the hours in that particular week:
(a) that would have counted towards the employee's normal weekly hours (whether those hours are worked or not); and
(b) that elapse before the total number of hours worked out in accordance with paragraph (2A)(b) exceeds 45 times the employee's normal weekly hours.
(3) Subject to this Part, Comcare is liable to pay compensation to the employee, in respect of the injury, for each week during which the employee is incapacitated, other than a week referred to in subsection (2), of an amount calculated using the formula:
Adjustment percentage times NWE minus AE
where:
"adjustment percentage" is a percentage equal to:
(a) if the employee is not employed during that week--75%; or
(b) if the employee is employed for 25% or less of his or her normal weekly hours during that week--80%; or
(c) if the employee is employed for more than 25% but not more than 50% of his or her normal weekly hours during that week--85%; or
(d) if the employee is employed for more than 50% but not more than 75% of his or her normal weekly hours during that week--90%; or
(e) if the employee is employed for more than 75% but less than 100% of his or her normal weekly hours during that week--95%; or
(f) if the employee is employed for 100% of his or her normal weekly hours during that week--100%.
"AE" applies in relation to the whole of that particular week and has the same meaning as in subsection (2).
“NWE" is the amount of the employee's normal weekly earnings.
(3A) If, as a result of the incapacity:
(a) the amount per week payable to the employee in respect of his or her continued employment is reduced; and
(b) a pension under a superannuation scheme is payable to the employee;
subsection (3) applies in relation to the employee in relation to a week during which the employee is incapacitated as if the references in the subsection to the amount he or she was able to earn during the week in suitable employment were instead references to the sum of that amount and any amount of the pension referred to in paragraph (b) that is payable to the employee in respect of that week.
(4) In determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to:
(a) where the employee is in employment (including self-employment)--the amount per week that the employee is earning in that employment;
(b) where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer--the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(c) where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or to continue to engage, in that employment--the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(d) where, after becoming incapacitated for work, the employee received an offer of suitable employment on condition that the employee completed a reasonable rehabilitation or vocational retraining program and the employee failed to fulfil that condition--the amount that the employee would be earning in that employment if he or she were engaged in that employment;
(e) where, after becoming incapacitated for work, the employee has failed to seek suitable employment--the amount per week that, having regard to the state of the labour-market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment;
(f) where paragraph (b), (c), (d) or (e) applies to the employee--whether the employee's failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete, a rehabilitation or vocational retraining program or to seek employment, as the case may be, was, in Comcare's opinion, reasonable in all the circumstances; and
(g) any other matter that Comcare considers relevant.
(5) Where an amount of compensation calculated under subsection (3) exceeds 150% of the amount called the Average Weekly Ordinary Time Earnings of Full-time Adults , as published from time to time by the Australian Statistician, the amount so calculated shall be reduced by an amount equal to the excess.
(6) Where an amount of compensation calculated under paragraph (3)(a) is less than the minimum earnings, the amount so calculated shall be increased by an amount equal to the difference between that amount and the minimum earnings.
(7) For the purposes of subsection (6), the minimum earnings of an employee shall be taken to be:
(a) $202, or, if subsection (8) or (9) applies in relation to the employee, the sum of $202 and the amount or amounts required to be added under whichever of those subsections applies; or
(b) an amount equal to 90% of the employee's normal weekly earnings;
whichever is less.
(8) If there are prescribed persons wholly or mainly dependent on the employee, there shall be added to the amount of $202 specified in paragraph (7)(a) the amount of $50.
(9) If there are prescribed children in relation to whom this Act applies (whether born before, on or after the date of the injury) wholly or mainly dependent on the employee, there shall be added to the amount of $202 specified in paragraph (7)(a) the amount of $25 for each of those children, but an amount shall not be so added for a child in relation to any period before the date of birth of that child.
(10) If a prescribed child is:
(a) a prescribed person in relation to the employee; and
(b) the only prescribed person who is wholly or mainly dependent on the employee;
subsection (9) does not apply in relation to that child.
(11) If 2 or more prescribed children are each:
(a) a prescribed person in relation to the employee; and
(b) wholly or mainly dependent on the employee;
subsection (8) applies in relation to one of those children and subsection (9) applies in relation to the remainder of those children.
(12) In this section, prescribed person , in relation to an employee, means:
(a) the spouse of the employee; or
(b) any of the following persons, being a person who is 16 or more
(i) the parent, step-parent, father-in-law, mother-in-law, grandparent, child, stepchild, grandchild, sibling or half-sibling of the employee;
(ii) a person in relation to whom the employee stands in the position of a parent or who stands in the position of a parent to the employee;
(iii) a person (other than the spouse of the employee or a person referred to in subparagraph (i) or (ii)) who is wholly or mainly maintained by the employee and has the care of a prescribed child, being a child who is wholly or mainly dependent on the employee.
Note: In relation to subparagraph (12)(b)(i), see also subsection 4(2).
(14) For the purposes of the definition of prescribed person in subsection (12), a person who has the care of a child referred to in subparagraph (12)(b)(iii) shall not be taken not to be wholly or mainly maintained by an employee merely because the employee pays remuneration to the person for caring for that child.

Section 5A(1) of the SRC defines “injury” as follows:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, tbut 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.
Section 5B defines disease as:
(1)(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, a significant degree, by the employee’s employment by the Commonwealth or a license.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
ISSUES
The issue for determination by the Tribunal is whether the respondent continues to be liable to pay compensation to the applicant for medical treatment and incapacity for work in respect of the previously accepted injury under sections 16 and 19 of the SRC Act on and from 7 February 2018.
The Tribunal accepts that in a matter such as this it would be erroneous to describe either party as bearing an onus of proof in respect of any issues for determination. The task for the Tribunal is to reach a level of satisfaction in respect of the issues based on the evidence before it. The Tribunal does, however, accept that in a review of a decision to cease liability for compensation under the Act in respect of a previously accepted injury, it must not affirm the decision unless satisfied, on the balance of probabilities, that the decision to cease liability is the correct or preferable decision on the evidence before it. As noted in the applicant’s written submissions, the case of Bromham and Comcare (Compensation) [2017] AATA 1515 aptly describes the position on this issue: [1]
When the matter was first argued before us it was put on behalf of Comcare that “there is insufficient evidence to establish that the compensable condition continues to contribute to Ms Bromham’s psychological condition if she suffers from one”. We do not agree that this is the correct approach to the task before us. Ms Bromham does not have to again show that Comcare is liable to compensate her in respect of the injury she suffered in 2005. Whilst neither party bears an onus of proof, there is an evidentiary burden on Comcare which must be discharged if the decision under review is to be affirmed. For this to occur we have to be satisfied on the evidence before us that, on the balance of probabilities, Ms Bromham does not suffer at present from the effects of the compensable injury and has not done so since 9 December 2014. If we cannot be so satisfied the reviewable decision must be set aside.
[1] See also Re Quinn and Australian Postal Corporation (1992) 15 AAR 519 at 525; Commonwealth v Borg (1991) 20 AAR 299 at 370; and Comcare v Nichols [1999] FCA 209 at [22].
CONSIDERATION
The respondent contends that liability for compensation in respect of the applicant’s previously accepted injury to the patellofemoral joint of the applicant’s right knee and an aggravation of the injury under section 16 and 19 of the Act had ceased as at 7 February 2018. It bases that conclusion on the January 2018 MRI evidencing no ongoing presence of an injury to the patellofemoral joint of the applicant’s right knee. The respondent contends that to the extent the applicant is continuing to experience ongoing pain symptoms, they are attributable to other non-compensable conditions.
The applicant contends that the injury that occurred as a consequence of the two incidents in September and November 2017 involved two consequential effects, the first being the damage to the patellofemoral joint of the applicant’s right knee and the second being an exacerbation of pre-existing medial compartment osteoarthritis condition. The applicant does not specifically dispute that the damage to the patellofemoral joint was no longer evident in the January 2018 MRI. However, she contends that the claimed second causal effect, namely, the exacerbation to the medial compartment osteoarthritis, continues to persist and that it results in her ongoing incapacity for work. On that basis, the applicant contends that the respondent’s liability in respect of her injury continues.
The Tribunal materials included summonsed records from the Newstead Medical Centre which the tribunal is satisfied evidence the applicant experiencing lower back pain and stiffness and intermittent bilateral knee and shoulder pain and swelling in 2015. The records evidence the applicant was referred for treatment of rheumatoid arthritis in 2015. The records also evidence the applicant suffering from fibromyalgia in early 2017 with symptoms including not sleeping well, feeling very tired, feeling a need to keep moving, generally feeling sore including sore back elbows and knees and noting that “back thing is the worst”.
The applicant gave evidence in the form of a statement dated 11 September 2020 together with oral evidence at the initial hearing. The applicant’s evidence can be summarised as follows:
(a)The applicant is 51 years of age;
(b)The applicant was previously employed by the Department of Home Affairs since 2005. She was employed as an APS3 Australian Border Force Officer. Her duties were varied and incorporated both administrative tasks through to enforcement activities and as part of her duties she was required to undertake any fitness testing, recertification with firearms, defensive tactics and scenarios requiring physical contact and exertion. The evidence is that she had been a Use of Force Officer since 2010 and had successfully passed all stages every year up until 2017 when she sustained her injury.
(c)On 22 September 2017 the applicant underwent a basic Functional Fitness Assessment which she passed.
(d)On 27 September 2017 while participating in a Use of Force defensive tactics recertification she was conducting and cutting technique on another person who was lying on the ground. The applicant was kneeling on her right knee with her left knee bent at a 90° angle for support. While leaning forward with her weight going through her right knee "I felt what I believe to be kneecap popping across and sudden severe pain. It felt like, what I think was my kneecap, moved back to its original position after approximately 30 seconds”. The applicant told the Tribunal that she felt pain “on the inside of [her] right knee and sort of over the top and underneath the kneecap” and that “it was constant after that”.
(e)Following the incident the applicant was assisted from the floor and an ice pack was applied for approximately 20 minutes. The applicant also took anti-inflammatory tablets. A trainer taped and strapped her knee and she continued with ice and anti-inflammatory tablets for the evening.
(f)The applicant submitted a report of the injury the following day, on 28 September 2017.
(g)Through consultation with her employer it was decided that she would be able to undertake early intervention treatment through physiotherapist which she did. The physiotherapist provided the suggested diagnosis of a possible tear to the medial meniscus. The applicant continued with exercises and over the coming weeks her right knee continued to improve to a point where she was able to undertake her normal duties. The applicant told the Tribunal that “it still wasn’t 100 percent at all but it was to a point where I could still work with it at that stage”.
(h)In November 2017 while undertaking her normal duties the applicant bordered a vessel via a steep gangway. When she reached the top of the gangway she felt a sharp pain inside her right knee. She subsequently climbed the stairs inside the superstructure of the vessel with difficulty and pain. When asked in cross -examination why she had continued up the stairs if she was experiencing pain the applicant told the Tribunal “because I had a partner and we were there to do a job and I needed to get it done even though I knew it was going to be painful”. The applicant advised her supervisor of her injury on returning to the workplace.
(i)On 1 December 2017 the applicant attended her general practitioner and a referral is made to orthopaedic specialist Dr Butorac.
(j)The applicant returned to the Newstead Medical Centre on 5 December 2017 and was placed on restricted duties until her appointment with the specialist. Restricted duties included not walking on uneven surfaces, climbing stairs, kneeling or squatting. The restricted duties meant that she was unable to conduct regular duties, including her Use of Force capability.
(k)On 7 December 2017 the applicant lodged a workers compensation claim for right knee pain. On 18 January 2018 the applicant attended an appointment with Dr Butorac and was referred have an MRI on her right knee. She subsequently attended appointments with Dr Butorac who recommended arthroscopic debridement surgery. The applicant stated that it was her understanding that the surgery could provide some relief but it was not a guarantee that her knee would return as it was pre-injury.
(l)The applicant underwent arthroscopic surgery on 19 April 2018. The applicant subsequently had an appointment with her specialist on 3 May 2018. Her understanding was that there was degenerative damage and that he had conducted debridement to even out the injured joint. The applicant then discussed ongoing treatment and it was decided to undertake physiotherapy and engage in a rehabilitation program to strengthen her ripening muscles. The applicant also understood that she might require a knee replacement in the future. The applicant subsequently undertook physiotherapy.
(m)The applicant returned to work on 7 May 2018 on the same restricted duties she was doing prior to her surgery. The applicant's evidence was that her knee was in pain by the afternoon of her return. The applicant then attended further physiotherapy on 8 May 2018 and undertook exercise tests. She then returned to work after the appointment and her knee was again painful by the afternoon. She did not work the following day. The applicant returned to work again on 10 May 2018 and on 11 May 2018 she commenced the first session of the rehabilitation program. Again, her knee was painful by the end of today and required ice and rest over the weekend.
(n)The applicant attended her general practitioner on 14 May 2018 and was prescribed anti-inflammatory medication and medication to ease her nausea.
(o)Over the next few months the applicant attended multiple physiotherapy appointments and GP appointments in the management of her knee. The applicant also took 19 days of sick leave as she was unable to attend work due to her pain. She was utilising crutches for a period of time as recommended by the physiotherapist.
(p)The applicant subsequently went back to see Dr Butorac and the applicant's GP then referred her to Dr Mulford, for a second opinion. Dr Mulford recommended ongoing treatment including hydrotherapy and physiotherapy and also applied a cortisone injection to her right knee which was helpful for a short period. The applicant also had a Synvisc injection which "significantly assisted in alleviating the pain after a few weeks". The applicant told the Tribunal that she believed from her records that this occurred on 26 October 2018.
(q)The applicant acknowledged in cross examination that she has had issues with fibromyalgia and also lower back pain previously and that there had been a suspicion reported previously that she might be suffering from rheumatoid arthritis in approximately 2015. The applicant explained to the Tribunal that her fibromyalgia causes her muscles to ache and she feels very tired and that she is currently taking medication for that condition which helps. The applicant told the Tribunal that the pain she experiences in her right knee following the 2017 injury is very different to the pain she experiences as a consequence of her fibromyalgia. She told the Tribunal that her fibromyalgia pain is very general and achy and tends to move around whereas her pain from the knee injury was very specific and sharp and she still feels that pain. The applicant told the Tribunal that when she injured her knee she felt pain in the patella and also inside the right knee joint. The applicant also acknowledged that she suffers depression and takes antidepressant medication for that condition.
(r)In her statement the applicant stated that "to my recollection I have not had an injury like this previously". When asked why on her claim form she had indicated that she had not experienced a similar symptom, injury or illness when the medical records indicate the applicant had suffered a sore knee previously the applicant acknowledged that she had previously experienced sore knees but told the Tribunal that she had never had pain like the pain she experienced with the injury she suffered in 2017 before, and that she answered the question to the best of her ability. When asked whether she had specifically advised any of the assessing medical professionals that examined her after her 2017 injury that she had previously experienced soreness in her knees the applicant conceded that she had not but that she had understood they had her full history and in her mind the pain she was experiencing as a consequence of her workplace injury was different to the pain she had previously experienced.
(s)The applicant's usual role is an APS3, the applicant has more recently been acting as District Manager for Northern Ports, which is an APS5 equivalent role. The applicant stated that currently her tasks are administrative and she has not yet been cleared back to full fitness. The applicant stated that she has not been able to return to a lot of the enforcement related activities she was undertaking pre-injury due to her requirement to pass a Functional Fitness Assessment as a condition of carrying a firearm which she is unable to do because of her injury.
(t)The applicant stated that earlier in 2020 she was deemed suitable for a promotion to an APS4 position but that she has been notified that it should not proceed as she is unable to complete the basic fitness assessment requirements of the position. The applicant stated that she presently has difficulty with stairs and in particular going downstairs which she finds painful on the inside of her right knee and over her kneecap area. The applicant stated that she has no sense of security and fears that her knee will buckle. The applicant stated that uneven surfaces are difficult for similar reasons. She stated that her right knee regularly clicks in and out with sharp pain presenting. She stated that she could be standing as normal and rotate her body slightly and she will hear an audible click and her knee will begin to buckle.
(u)The applicant stated that she has tried to maintain and strengthen her legs through walking however if she walks too far she feels pain in her knee. She has undertaken Pilates classes on the advice of the physiotherapist to maintain strength and she finds these classes effective as "they are not weight-bearing". Although the applicant cannot engage in any exercise which require her to kneel as it is "painful to put my weight through my kneecap".
(v)The applicant stated that her ability to undertake household activities can be limited and that she finds vacuuming and cleaning difficult. She stated that prior to her injury she would walk 3 to 4 times a week at a brisk pace but she is no longer able to do this. She stated that she used to participate in dance, boxing and cardio programs but that she is no longer able to do this due to her knee.
(w)When asked to describe her current pain the applicant told the Tribunal that she still experiences pain “on the inside of my right knee and underneath that knee cap. So still consistent with the pain that I was having originally”. When it was put to the applicant that she had not taken consistent pain medication since the time of her injury and that perhaps after she had completed her initial sessions of physiotherapy and then returned to work she was no longer experiencing significant pain from the injury, the applicant told the Tribunal “no, I still had pain in my knee”. She told the Tribunal “I was using Nurofen as best as I could because stronger medication is difficult to work with”.
The Tribunal is at somewhat of a disadvantage in assessing the credibility of the applicant’s evidence given that that evidence was provided to a differently constituted Tribunal. The Tribunal has carefully considered the transcript of the initial hearing. In the Tribunal’s view, there is no particular aspect of the applicant’s evidence that would suggest material inconsistency with earlier statements or obvious exaggeration or embellishment. The most contentious issue that emerged in cross examination was the apparent inconsistency in the applicant’s statement in her claim that she had not previously suffered a similar injury or symptom when considered against the medical records indicating some prior soreness in the applicant’s knees. The respondent’s counsel also tested the applicant on her failure to disclose prior history of knee pain to her assessing specialists. Ms Chick fully acknowledged having experienced prior knee soreness as reflected in her medical records but explained that she did not consider that to be similar in nature to the very specific and sharp pain that she experienced as a consequence of her injury in 2017. Ms Chick told the Tribunal that the nature of the pain is very different to her previous knee soreness and that she continues to experience it. The Tribunal accepts the applicant’s evidence in that respect. Ms Chick told the Tribunal that she had not mentioned her previous knee soreness to the assessing specialists because she did not equate her 2017 injury and the specific pain that she was experiencing as a consequence of that injury with her previous more general knee soreness. She was also under the impression that the specialist would have access to her history. Again, the Tribunal accepts the applicant’s evidence in this respect and accepts the truthfulness of the applicant’s evidence more broadly.
Following the incidents that occurred in September and November 2017, the applicant lodged a workers compensation claim on 7 December 2017 in respect of “right knee pain”. The applicant noted that she was originally injured during a use of force training course in September 2017 and that the injury had “flared” up again “a couple of weeks ago” when traversing a vessel gangway as well as an internal flight of stairs. The claim was supported by a medical certificate issued on 5 December 2017 with presenting symptoms described as “right knee pain, sensation of locking and giving way”. The medical certificate notes the applicant incapacitated for work and also notes “no kneeling, avoid walking on uneven ground, avoid twisting movements of the knee (avoid physical defensive tactics if this may occur), avoid heavy lifting greater than 10kg, rest break every 60 minutes of prolonged standing”. The applicant noted that she sought medical treatment on 9 October 2017 and also that she had not experienced a similar symptom, injury or illness.

On 10 January 2018, the applicant’s GP Dr Georgia Bavin of the Newstead Medical Centre, gave a provisional diagnosis of “medial cartilage tear of the right knee”. Dr Bavin noted that the applicant’s symptoms would impact her ability to perform some of her preinjury duties and noted that she had been referred to orthopaedic specialist, Dr Roger Butorac.
On 29 January 2018 a MRI scan was performed on the applicant’s right knee. The scan identified multiple chondral injuries in the patellofemoral compartment of the knee, a lesion on the medial femoral condyle and other incidental findings.
The Tribunal materials included a report from Dr Butorac dated 19 February 2018 noting that the applicant informed that she had continued to be troubled by pain in her right knee since the incident in September 2017. He noted that when he examined the applicant she was troubled by the ongoing pain over the medial aspect of the knee and some intermittent swelling. Dr Butorac noted the applicant reporting no prior issues with the right knee. Dr Butorac noted that he believes the applicant signs and symptoms at the time of this examination were more suggestive of “medial meniscal pathology”. However, Mr Butorac also noted that the MRI changes were patellofemoral subluxation or dislocation.
19 April 2018, Dr Butorac performed arthroscopic surgery on the applicant’s right knee. In Mr Butorac's letter to the applicant's GP, Dr Parkes, dated 19 April 2018, Mr Butorac describes the outcome of the arthroscopic surgery as follows:
Although the MRI scan suggested a discrete lesion on the medial femoral condyle there was some generalised chondromalacia with several large flaps. There were multiple small flakes of articular cartilage floating about within the joint, presumably arising from the degenerating medial femoral condyle. Both menisci were intact. She had some mild chondromalacia affecting the patellar articular surface but the trochlea was normal.
Following surgery, it would appear from the evidence that the applicant experienced significant further pain in her knee in particular when the applicant attempted to stand or walk. In a letter to Dr Parkes dated 30 May 2018 Dr Butorac noted that the applicants walking capacity “has become very limited”.
On 1 June 2018 a further MRI was undertaken as a consequence of the applicant reporting further pain.
The Tribunal materials included a report from Dr Jonathan Mulford dated 24 July 2018 in which Dr Mulford noted damage to the applicant’s medial femoral condyle with ongoing medial knee pain post-surgery. Dr Mulford noted that the applicant had been utilising crutches for the last two months and uses pain medication at night time. He also noted that he had given the applicant a diagnostic injection with steroid.
In a report dated 15 February 2018 by orthapaedic specialist Dr Doig, Dr Doig noted the applicant reporting some prior history of previous sporting injuries but denying any pre-existing knee injury specifically. Dr Doig’s recording of that history is as follows:
Ms Chick stated that while employed with the Department of Immigration and Border Protection, as a Customs Officer, she sustained an injury to her right knee on 27 September 2017. She was attending a firearms and defence tactics course, which is a pre-requisite of her job and in the process of kneeling and hand-cuffing a colleague, Ms Chick felt her patella move in the femoral trochlear groove. She described a subluxing episode with spontaneous relocation.
The knee was iced and strapped and she took some Nurofen. She finished the course training, albeit with pain and swelling.
Ms Chick denied any previous problems or injuries to the right knee, although she did play a lot of sport when she was younger.
Ms Chick saw her local doctor and she was placed on restricted duties. Physiotherapy was organised and she was commenced on analgesics.
Her condition has improved with time, although she remains symptomatic. An MRI scan was performed on 29 January 2018 which revealed pre-existing, Grade 2 to 3 wear on the patellar facets, particularly laterally, with Grade 2 chondral loss over the anterior and medial femoral condyle. There was a suggestion of a partial tear of the distal quadriceps but this was not consistent with the mechanism of injury. In addition, there was thought to be patellar tendinopathy.
Dr Doig also notes that the applicant reported other preinjury conditions including fibromyalgia and the use of an antidepressant agent.
Dr Doig makes the following observations on physical examination of the applicant:
On examination on 6 February 2018, Ms Chick was a fit looking lady for her age who walked comfortably into my consulting rooms in no distress. She was only slightly overweight. She did have a mild limp through the right leg.
The main finding was weakness at the quadriceps muscle, with 10° of extensor lag. The knee was able to be passively pushed into full extension. She had good flexion and there was Grade 1, physiological laxity of both medial collateral ligaments. The knee was stable. She was able to squat to 100° and kneel with care, although her patello-femoral articulation remained irritable with a positive grind test. There was no neuro-vascular compromise of the lower limb.
Ms Chick was tended to wear a patellar stabilising brace when she was performing any activity.
Dr Doig states that in his opinion the applicant sustained an aggravation and symptomatic exacerbation of a pre-existing, articular cartilage damage at the patellofemoral joint. Dr Doig goes on to say that, in his opinion, the incident that occurred in around October/November 2017 "is not a new condition but is simply a symptomatic exacerbation of the patello-femoral joint arthritic change. Walking up and down stairs predisposes towards a lot of stress through the patello-femoral articulation and Ms Chick would be prone to further injury due to her very poor, weak quadriceps muscle". Dr Doig further concludes that "the main significant contributing factor to Ms Chick's current symptoms is the pre-existing, patello-femoral joint damage at the right knee joint”. Dr Doig concludes that the applicant is "currently fit for modified pre-injury duties" and notes that "at this point in time, Ms Chick would benefit from avoiding repetitive stair and hill climbing, walking on uneven ground, repetitive bending, twisting and squatting through the right leg, in addition to kneeling. These restrictions will be reduced as her condition improves”.
Dr Doig provided a further report dated 27 November 2018. In that report when asked to opine on whether or not the applicant was suffering a pre-existing condition Dr Doig stated that in his view the applicant was suffering from pre-existing articular cartilage damage at the medial femoral condyle and patellofemoral articulation at the right knee joint, on a background of multi-regional joint pain and fibromyalgia.
When asked to opine on whether the applicant continues to suffer from the injury she sustained in September 2017 Dr Doig stated that:
As a result of the incident in September 2017, Ms chick described a single instability episode at the patellofemoral joint which may have been related to the pre-existing articular cartilage where which has resulted in a symptomatic exacerbation of the underlying articular cartilage damage. As far as I am aware, there have been no further episodes of patellofemoral joint instability, therefore a soft tissue injury to the medial retinaculua structures is unlikely to have been significant and in my opinion, a frank dislocation is unlikely to have supervened, which was in keeping with the MRI scan result of 29 January 2018. Based on the current medical documentation, it would appear that Ms chick is now suffering from a chronic pain condition following her arthroscopy on a background of fibromyalgia and depression.
In the Tribunal's view, it is relevant to note that in providing this opinion, Dr Doig had not reassessed the applicant. It is also relevant to note that Dr Doig acknowledged that the applicant’s conditions of fibromyalgia and depression are outside his expertise.
In respect of the applicant's condition at that time, Dr Doig speculates that he "would expect following the simple work-related incident that she would have at most, persistent anterior knee pain with problems squatting, kneeling and difficulty on stairs".
In his supplementary report Dr Doig also expressed the view that the MRI scan performed in January 2018 confirmed pre-existing degeneration with the medial compartment of the knee joint. Dr Doig also states that:
The mechanism of injury of September 2017 was to the patellofemoral joint only. As far as I'm aware, Ms chick was not weight-bearing through the tibiofemoral compartments at the time, therefore no further injury would have occurred to the medial compartment in my opinion, as a result of the incident of September 2017. There would have been, however, the potential of causing further degeneration at the patellofemoral articulation.
Dr Doig states and in his view the September 2017 incident "did not cause an exacerbation of the medial compartment osteoarthritis for the reasons stated above. Ms chick was kneeling at the time of the incident therefore the tibiofemoral compartments were not loaded”.
Dr Doig states that he disagrees with Dr Sharman's report of 27 August 2018 commenting as follows:
I disagree with Dr Sharman's report in that the initial mechanism of injury was only to the patellofemoral articulation. As Ms chick was kneeling at the time, there is the potential of symptomatically exacerbating and aggravating articular cartilage damage at the patellofemoral joint but not within the medial compartment. The on-going, medial compartment symptoms are related to her pre-existing condition and possibly the fibromyalgia. She may now be developing a chronic pain type of picture, although it is several months since I initially assessed the examinee.
In oral evidence given at the initial hearing, Dr Doig made clear that on examination of the applicant on 6 February 2018 the applicant demonstrated significant discomfort with her patellofemoral joint. He told the Tribunal that the applicant didn’t have full extension and was extremely irritable in the patellofemoral region. He told the Tribunal that he was not able to do the McMurray tests as the applicant would have been far too sore, and it would be too painful to perform that manoeuvre. He also told the Tribunal that he did not perform the tests to ascertain, clinically, whether there was likely a problem with the medial compartment. Dr Doig acknowledged that it would appear that by the time Dr Butorac undertook his assessment of the applicant in January 2018 the applicant’s symptoms would suggest an issue with her medial compartment. He speculated that something else may have happened to the applicant in between their respective examinations. The Tribunal found this suggestion unpersuasive. Dr Doig did acknowledge that the January MRI scan did suggest pathology consistent with an issue with the applicant’s medial compartment.
When Dr Doig was asked whether he accepted Mr Stanley Clarke’s diagnosis that the applicant was suffering from an exacerbation of early medial compartment osteoarthritis of the right knee he told the Tribunal that there is a possibility that that is a correct diagnosis based on the practitioner’s assessment. However, Dr Doig qualified his position by stating that he was not aware that the biomechanical description of the injury put any stress on the medial compartment. However, when pressed further, Dr Doig conceded that the applicant’s description of the incident included her experiencing pain in the medial compartment. Dr Doig expressed doubt as to whether the incident that occurred in September 2017 was likely to cause damage to the medial compartment but was more circumspect when asked whether the subsequent incident occurring in November 2017 could have caused that effect.
Dr Doig also acknowledged that from his experience it was not uncommon for people who have a degenerative problem with their knee who are asymptomatic and then have a stumble or fall that results in those problems subsequently becoming symptomatic. He told the Tribunal “I certainly see a lot of that in clinical practice”.
The Tribunal materials include a report of consultant orthopaedic surgeon, Mr Derek Stanley-Clarke's, dated 29 November 2018. In the report Dr Stanley-Clarke records the applicant’s description of the circumstances surrounding the injury as follows:
On 27 September 2017 participating in a recertification training in respect of defensive tactics she was handcuffing an individual who was lying prone on the floor. In order to do so she was kneeling on her right knee with her left lower limb extended to stabilise herself over the prone individual. As she was doing this she felt as if her kneecap slipped sideways jamming her knee with acute pain. She was immobilised for a short period of time. She indicated she slapped the knee into alignment where she felt that the kneecap came back into place and she was able to stand up but with assistance. Ice was then applied and was immediately elevated. She rested for part of the day but was able to participate later in less active activities.
At this point I questioned her about any pre−existing symptomatology in relation to either knee and she indicated she had been completely asymptomatic and had no prior injuries either as an adolescent or an adult or ever sought medical attention for either knee. The recertification training was in Melbourne. She then came back home to Tasmania and continued working but in pain and she completed an incident form.
In the report, Dr Stanley-Clarke makes the following observations in respect of the MRI history of the applicant’s right knee:
We have three MRI scans and a bone scan in relation to her knee.
MRI Scan — Knee (29 January 2018): This reports chondral injuries affecting the lateral and medial facets of the patella. An osteochondral lesion described as old in the medial tibial femoral compartment of the knee and they note an incidental finding of a partial tear of the distal quadriceps rectus femoris tendon. This was not clinically apparent. There is no history of past injury to the area.
MRI Scan — Knee (1 June 2018): Post−arthroscopy, in the patellofemoral compartment they report minor patellar articular cartilage irregularity. In the medial compartment they continued to report the chondral defect of the medial femoral condyle of a similar site. Lateral joint compartment was normal. In both two previous MRIs the menisci were noted to be normal as all the ligaments.
MRI scan — Knee (19 October 2018): They report no focal chondral loss and in the patellofemoral joint mild chondromalacia patellae. I have viewed both the first and the last MRI scan and the articular cartilage abnormalities noted in the first scan in the patellofemoral joint remain and are still evident on the films of 19 October 2018. I am able to identify the osteochondral lesion of the medial femoral condyle on the first MRI of 29 January 2018 but not on the last 19 October 2018.
Nuclear Medicine Scan (7 October 2018): In relation to the nuclear medicine scan this is interesting and this was performed on 7 October 2018 reflects no definitive evidence of any osteoblastic bony pathology in the knees.
In the report Dr Stanley-Clarke provides a helpful overview of the medical report history in respect of the applicant's right knee injury as follows:
Treating orthopaedic surgeon, Dr Roger Butorac, in his first letter to general practitioner dated 19 January 2018, indicates he felt her symptoms were attributable to medial meniscal pathology and he felt that it was worthwhile getting an MRI scan.
In a subsequent letter to Dr Helen Parkes, the general practitioner, dated 19 April 2018, he reports the following:
He performed arthroscopic surgery at St Luke's Hospital on 19 April 2018 on her right knee. He goes further to say that although the MRI request suggested a discrete lesion of the medial femoral condyle, he found that there was generalised chondromalacia with several large flaps. Further, there were multiple small flakes of articular cartilage floating about the joint, presumably arising from the degenerating medial femoral condyle. Both menisci were intact. She had some mild chondromalacia affecting the patellar articular surfaces but the trochlear was normal and the ACL was intact. He indicated that he debrided the medial femoral condyle. In his final sentence he stated, "She really has early medial compartment osteoarthritis which is likely to progress in years to come".
Report of Dr Jonathan Mulford, second orthopaedic opinion, in a letter to Dr Helen Parkes, General Practitioner, 24 July 2018: His impression was that she suffered from chondral damage to the medial femoral condyle with ongoing medial knee pain post−arthroscopy, with no spontaneous osteonecrosis of the knee. His initial plan was to continue non−operative treatment. A diagnostic injection with local anaesthetic and steroid was given on the same day of consultation and he recommended a trial of an unloader knee brace. He did not feel there was a surgical solution for her at that stage.
Letter of 4 September 2018 to Dr Helen Parkes: He indicates that the brace has given her considerable relief. He indicated that he had discussed an osteotomy but given that she is improving he planned to progress conservatively.
Letter of 16 October 2018 reflects a continuing struggle with medial−sided knee pain, pain definitely medial at the medial joint line region, and he requested a bone scan and a repeat MRI scan before considering any osteotomy.
In his oral evidence Dr Stanley-Clarke confirmed that in the preparation of his report of November 2018 when he took the applicant’s history of the injury the applicant had said to him that when the second incident occurred, she was walking up the steep gangway and her knee gave way and “she stumbled”. When asked whether or not that was a detail the applicant had provided to him or one he had obtained from a document, Dr Stanley-Clarke confirmed that it was based on what the applicant had described to him.
In the report Dr Stanley Clarke makes the following diagnosis of the applicant:
Her history and progress to date with symptomatology is consistent with two diagnoses:
1. At point of injury on 27 September 2017, she sustained either a subluxation or dislocation of her right patella. Symptoms related to the specific aspect of her knee have now resolved and indeed on clinical examination I could find no abnormality of this joint. This is also confirmed at arthroscopy by Dr Butorac on 19 April 2018. I would therefore state that she has fully recovered from this specific event.
2. Early medial compartmental osteoarthritis of the right knee, exacerbated by the incident on 27 September 2017 and further exacerbated in November 2017. These exacerbations have now ceased and her ongoing symptoms are due to the pre−existing early medial compartmental osteoarthritis of the right knee.
Dr Stanley-Clarke notes in the report that the applicant continues to complain of pain over the inner aspect of the knee, specifically after prolonged weight-bearing or on pivoting of the knee. She also describes an intermittent painful catch within the knee.
It is clear from the report that Dr Stanley-Clarke is of the view that there are two relevant diagnoses to the incident that occurred on 27 September 2017. The first is what he describes as a "subluaxtion or dislocation" of the applicant's right patellofemoral joint. With respect to that particular injury Dr Stanley Clark concludes on the basis of his examination as well as the outcome of the arthroscopy undertaken by Dr Butorac on 19 April 2018 that he can find no abnormality of the joint and therefore concludes that the applicant has fully recovered from the injury inflicted on 27 September 2017. The second diagnosis however is an exacerbation of pre-existing "early medial compartmental osteoarthritis of the right knee" which he believed occurred both on the incident on 27 September 2017 and then also during the further incident in November 2017. In respect of this secondary diagnosis Dr Stanley Clark concludes that in his view the exacerbations have now ceased and that the applicant's ongoing symptoms are due to the pre-existing early medial compartmental osteoarthritis of the right knee.

Dr Stanley Clark notes that in his opinion it is unlikely that the applicant had recovered from her initial injury of September 2017 by the time of her subsequent aggravation of the injury in November 2017. Dr Stanley Clark states that "indeed the stumble or the symptomatology going up steep gangplank is more likely as a consequence of the injury to the patellofemoral joint still being in place".
Dr Stanley-Clarke notes that, in his opinion, the applicant "does suffer from a pre-existing condition of osteoarthritis of the medial joint compartment, as evidenced on arthroscopy on 19 April 2018 by surgeon, Dr Butorac, confirming generalised chondromalacia of the medial femoral condyle and he stated diagnosis of early medial compartmental osteoarthritis".
With respect to the first diagnosis, Dr Stanley-Clarke concludes that "I am not of the opinion that she continues to suffer from an injury sustained in September 2017. With respect to the first component, the patellofemoral joint subluxation, I find this joint to be normal clinically and this initial injury, the subluxation/dislocation of the patella, to have resolved".
With respect to the second diagnosis, Dr Stanley-Clarke concludes "I deem this exacerbation to have resolved for the following reasons; the injury itself was low-impact and low energy, rendering her arthritis symptomatic. In any load-bearing joint there is always an activity which will render osteoarthritis initially symptomatic. There is no evidence to support any significant injury at the time which would cause ongoing effects. I would expect the influence of this exacerbation injury to have settled within six weeks and any ongoing symptomatology would be attributable now to her ongoing arthritic pathology”.
In respect of whether or not the arthroscopy performed in April 2018 for treatment of an injury or aggravation the applicant suffered as a consequence of the September or November 2017 incidents, Dr Stanley-Clarke concludes "it is difficult to answer this question. It is apparent that Dr Butorac was considering pathology affecting the medial joint compartment, possibly a medial meniscus tear in the earlier stages and then the osteochondral lesion as defined on the MRI. Certainly, it was diagnostic in nature and would appear relevant to both the events in September and in November 2017.”
In respect of the applicant's incapacity as a consequence of her injury Dr StanleyClarke concludes that, in his view, the applicant has incapacity due to her early medial joint compartment arthrosis which would preclude her from undertaking activity such as kneeling, squatting and excessive loading of the knee however Dr Stanley-Clarke makes clear that in his view any exacerbation of that condition due to the incidents of September and November 2017 were ceased within approximately three months of the time of the incident.
Dr Stanley-Clarke made clear that in his view the exacerbation of the applicant's medial joint compartment arthrosis "need not have resulted in any anatomical or pathological changes" to the joint compartment. He stated that in his view, "simply loading arthritic joint will give rise to pain".
Dr Stanley-Clarke made clear that in his opinion the applicants pre-existing condition of fibromyalgia was not impacting the applicant’s complaints of knee pain.
In response to a question of whether, on the balance of probabilities, the applicant’s symptoms complained of were due to the incident in September 2017, the pre-existing condition or the surgery in April 2018, Dr Stanley-Clarke stated that:
Following the incidence of September 2017, she had symptomatology, both in relation to the patellofemoral joint and the medial joint compartment, and I have referred to these two distinct diagnoses. Her ongoing symptomatology now is related not to the incident of September 2017 but to her arthritis. [Note he doesn't appear to draw a conclusion with respect to the impact of surgery in April 2018]
As a final comment in his 2018 report Dr Stanley-Clarke notes that:
The general consensus would be and it is my opinion also that she does have early osteoarthrosis of her medial joint compartment pre-existing September 2017. However, there are some inconsistencies in her presentation, specifically the stated level of pain and ongoing incapacity. This is not supported by her clinical examination which reflects medial joint line pain only and also the most recent bone scan which reflects no osteoblastic (active) activity.
In his oral evidence Dr Stanley-Clarke confirmed that in his opinion the applicant’s normal physiological state of her right knee had changed as a consequence of the September 2017 incident. Mr Stanley-Clark confirmed that in his opinion “when a joint becomes painful as a consequence of arthritis there is a physiological change.”.
Dr Stanley-Clarke also confirmed in his oral evidence that he would not consider it unusual for a person who previously has asymptomatic degeneration in their knee and then has an instigating event to then become symptomatic and remain symptomatic after that event.
The Tribunal materials include a report from consultant occupational physician Dr Peter Sharman dated 27 August 2018. In the course of the hearing counsel for the respondent sought to question Dr Sharman’s expertise to opine on knee injuries of the kind the applicant has suffered. The Tribunal is satisfied that as a qualified occupational physician with prior experience in providing opinions on knee conditions, and with specific training in musculoskeletal disorders, Dr Sharman was well within his field of expertise in providing his opinion in respect the applicant’s knee injury in the manner in which he did in this matter. Having considered Dr Sharman’s reports, and having considered the transcript of his oral evidence, the Tribunal is satisfied that Dr Sharman was particularly diligent and considered in the preparation of his opinions. In his report Dr Sharman records the applicant’s personal history as follows:
Ms Chick reported that she had worked for Australian Border Force for the last 13 years. She had passed yearly fitness assessments to be eligible continue in her role as an operational officer based in Launceston.
Ms Chick reported that she sustained injuries to her right knee in the course of her employment on 26 September 2017. The injury occurred on a training course conducted in Melbourne. This was a three-day recertification course. During the handcuffing exercise, she was kneeling next to another person on the floor to practice restraint techniques, when her kneecap "popped across". There was immediate pain however, after she "whacked" her knee and moved it, the kneecap moved back into position. She had first aid treatment with ice and her knee was strapped up, but her knee continued to be painful. She managed to finish the last hour or so of the day's training, but did not perform any further physical activities.
Ms Chick reported that at the hotel after the training session her knee felt bruised and puffy when she took off the strapping. She completed the final day of the training course on a shooting range with her knee strapped up.
Ms Chick reported that she returned to Launceston, however her knee remained sore. About three or four days after the injury, she attended a physiotherapist under the Border Force's Early Intervention Programme. She attended Ms Margaret Archer at Physiotas, where a torn meniscus was suspected, in addition to the kneecap dislocation. She had about five sessions, but her knee continued to be symptomatic. She continued at work.
Ms Chick reported that in the course of her duties in early December 2017, while boarding a vessel at the Bell Bay Port via a steep gangway, her knee gave way and she stumbled. She experienced more pain and swelling affecting her right knee.
Ms Chick reported that it was at this point that she attended a general practitioner, Dr Helen Parkes. She also suspected a meniscal tear and arranged a referral to Mr Roger Butorac, an orthopaedic surgeon. He saw her in January 2018 and arranged an MRI scan which indicated that there was no meniscal tear, but articular cartilage damage was suspected. He proceeded to arthroscopic assessment in April 2018 where he debrided the knee joint.
During this period, Ms Chick continued with a self-managed exercise programme with occasional physiotherapy supervision. After the arthroscopy she had further physiotherapy postoperatively, however three or four weeks after the surgery her knee was more painful than before surgery. She returned to Mr Butorac who arranged a further MRI scan which did not reveal any significant interval change. She had further physiotherapy and was advised that she needed to unload the medial compartment of her knee. The physiotherapist advised the use of crutches and a brace.
Ms Chick reported that she participated in a six-week programme for arthritis, attending twice weekly, but this did not result in any significant improvement.
Ms Chick reported that she asked her general practitioner for a referral for a second orthopaedic opinion. She consulted Mr Mulford about two weeks before my assessment. He performed a cortisone injection into the knee and arranged for the fitting of a brace to unload the medial compartment. She is yet to be fitted with the brace, but she did find that the cortisone injection resulted in a significant reduction in her pain levels.
Ms Chick reported that, in addition to her right knee symptoms, she has also recently developed pain under her left foot. A stress fracture was suspected, however x-rays and a CT scan were negative and sesamoid pathology is suspected. She has a referral to see a podiatrist and was due to see the podiatrist the day after my review.
Ms Chick attributed the onset of pain in her left foot to increased loading on that foot as a result of her right knee injury.
Ms Chick reported that her mental state has also been affected by the ongoing incapacity and frustrations with dealing with the Comcare scheme, including the recent denial of liability on the basis of independent medical reports. She expressed particular concern about the invasion of privacy from the requirement by Comcare to release all of her medical records.
Ms Chick reported that she has not had professional psychological help.
Dr Sharman recorded the status of the applicant at the time of his assessment of the applicant for the purpose of this report as follows:
At the time of my assessment Ms Chick reported ongoing, almost constant, pain in her right knee aggravated by weight bearing. Her symptoms are worse when she walks down slopes or stairs. She reported that her knee is not restricted in movement but at times it can swell, if she has been on her feet for a while. She cannot squat or kneel and lacks confidence in her knee.
From a psychological perspective, Ms Chick reported that at times she gets down and is emotional and sometimes angry about the ongoing difficulties with her knee and the frustrations of the compensation system. Her sleep is not affected by her mental state but sometimes is affected by knee symptoms. She needs to position her legs carefully at night and sleeps with a full-body pillow.
Ms Chick reported that she remains under review by her general practitioner. She occasionally takes Panadeine Forte at night for her knee pain but has ceased diclofenac because of gastrointestinal side effects. She continues with Endep, Lyrica, and fluoxetine medication for pre-existing fibromyalgia symptoms.
Ms Chick reported that she continues with the self-managed exercise programme, but is not currently attending a physiotherapist. She is waiting on the provision of a brace for her right knee.
Ms Chick reported that she drinks a bottle or a-bottle-and-a-half of wine on the weekend but not during the week. She is trying to cut down on her smoking and smokes between one and ten cigarettes per day.
Dr Sharman recorded the applicant's past medical history as follows:
Ms Chick reported that there was no history of any specific injury to her right knee prior to the incident in September 2017. She reported that she had had various aches and pains affecting her joints consistent with her age, but emphasised that she had participated in a fitness test every twelve months during her period of employment with Australian Border Force. She had passed this test on every occasion.
Apart from a history of bunion surgery and a left ankle injury that also occurred during a Border Force training course, there is no other significant musculoskeletal history.
Ms Chick reported that she has Fibromyalgia and takes Endep, Lyrica, and fluoxetine medication to control symptoms.
Ms Chick reported that there were no other long-term health problems that impact on her capacity to work.
In respect of his physical observation of the applicant Dr Sharman noted "On supine assessment I was able to obtain a full range of extension and flexion of the right knee, although Ms chick reported discomfort at the limits of flexion. There was localised medial joint line tenderness and some irritability to patellar pressure, but no obvious swelling. There was no asymmetry of lower limb muscles by measurement”.
Dr Sharman recorded the outcomes of the previous investigations in respect of the applicant’s right knee injury as follows:
An MRI scan of the right knee on 29 January 2018 is reported as demonstrating multifocal chondral injuries in the patellofemoral compartment of the knee as follows. An 8.7 -mm grade 3 chondral defect associated with a chondral flap superiorly involving the medial aspect of the lateral facet of the patella. There is a grade 2 chondral defect measuring 10 mm in mediolateral diameter involving the medial facet of the patella. There is fraying of the patellar chondral cartilage at the level of the median patellar ridge and laterally. There is a 6-mm grade 2 chondral defect involving the lateral aspect of the medial femoral condyle. There is a partial tear of the distal rectus femoris tendon just superior to the patella and mild swelling of the proximal and distal patellar tendons in keeping with tendinosis. Mild swelling of the prepatellar bursa is also demonstrated in keeping with bursitis. In the medial compartment there is a "bank-like" vertically-orientated T2 hyperintense area in the medial femoral condyle bone marrow extending into the articular surface. There is a 6-mm full-thickness chondral defect at the same level. The findings are consistent with an old osteochondral injury. There is another grade 2 chondral defect in the posterior weight-bearing portion of the medial femoral condyle. The medial meniscus is intact, the MCL and posterior oblique ligaments are intact as well. There is a grade 2 sprain of the distal semimembranosus tendon. In the lateral compartment there is evidence of chronic strain of the lateral collateral ligament. Similar appearance is seen in the proximal popliteal tendon at its attachment to the lateral femoral condyle consistent with an old low-grade strain. The lateral meniscus shows no abnormality. The ACL and PCL are intact. The reporting radiologist concludes multiple grade 2 anterior chondral injuries in the patellofemoral compartment and an old osteochondral lesion in the medial tibiofemoral compartment involving the weight-bearing portion of the medial femoral condyle. There are other incidental findings of partial tear of the distal quadriceps, superior and inferior patellar tendinosis, prepatellar bursitis, grade 1 old/chronic strains of the proximal LCL and popliteus tendon and grade 2 strain of the distal semimembranosus tendon.
An MRI scan of the right knee on 01 June 2018 is reported as showing some improvement in the amount of oedema in the medial femoral condyle on its medial aspect with resolution of the previously visualised area of oedema. This could indicate a subacute injury in view of the improvement in imaging findings. There is no significant meniscal pathology.
An x-ray of the left foot on 02 July 2018 is reported as showing a marked hallux valgus deformity. There is some soft tissue thickening seen along the medial aspect of the first metatarsal head but no significant bone or joint abnormality seen. No evidence of acute or healing fracture is noted and no periosteal reaction noted.
A CT scan of the left foot on 06 July 2018 is reported as showing there is a small subarticular cyst within the first metatarsal head and mild lateral subluxation of the sesamoid bones.
A long leg view x-ray on 10 July 2018 is reported as showing functional alignment and joint space with the knee and hip on AP imaging appears preserved.
Dr Sharman then concluded as follows:
Ms Chick gives a history consistent with patellar subluxation or dislocation while undergoing a training course in the course of her employment in September 2017. At the time, there was reported knee soreness which continued, with apparent concerns by the treating practitioners that she may have sustained a medial meniscus injury. After an incident walking up a gangplank with increased levels of pain after the knee gave way, she saw Mr Butorac who agreed the symptoms were consistent with a medial meniscus tear, however a subsequent MRI scan failed to show a significant tear but indicated evidence of patellar articular lesions and medial femoral condyle articular lesions.
A subsequent arthroscopy confirmed the presence of articular cartilage abnormalities but no significant evidence of a meniscal tear.
Despite debridement surgery, Ms Chick has gone on to experience continuing knee symptoms, with most of her symptoms referrable to the medial compartment.
The most likely scenario is that Ms Chick did sustain a patellar dislocation in the subject incident in association with trauma involving the medial compartment on a background of probable pre-existing degenerative change affecting that compartment. Although the patellofemoral component of her injury has settled, she has been left with progressive degenerative change affecting the medial compartment, as evidenced by the MRI scan and clinical findings with medial joint line tenderness and pain on weight bearing, particularly with loading of the medial compartment. It would be useful, however, to have some updated imaging, preferably a nuclear scan to determine which compartments of the knee are most metabolically active.
It is difficult to accept that Ms Chick would have developed a symptomatic knee causing the extent of current disability without the effects of the original inciting incident in September 2017.
In response to a question regarding the factors and events that contributed to or aggravated the applicant's condition Mr Sharman stated:
I would accept that Ms Chick probably had some underlying degenerative change affecting the medial compartment of the knee, most notably the medial femoral condyle cartilage, however the history from Ms Chick and review of the medical records suggest that any pre-existing degeneration was asymptomatic and it was the incident in employment in September 2017 that caused an injury that rendered her patellofemoral joint symptomatic and caused an exacerbation of pre-existing asymptomatic medial compartment change to cause a symptomatic knee condition with impact on her capacity to work.
In response to the conclusions reached by Dr Doig in his report dated 15 February 2018 Dr Sharman states:
Dr Doig accepts an aggravation of pre-existing articular cartilage damage at the patellofemoral joint and states that the incident in October November 2017 was not a new condition but simply a symptomatic exacerbation of the patellofemoral joint arthritic change. Earlier in his report, Dr Doig comments on the changes in the patellofemoral compartment and the partial tear of the distal quadriceps, but he does not seem to discuss the medial compartment of the knee at all.
While I agree with his comments that walking up and down stairs places stress through the patellofemoral articulation and that she may be prone to further injury due to weak quadriceps muscle, there is no comment about the evidence of medial compartment symptoms which was quite evident at my assessment.
As stated in my opinion above, the clinical picture is of a patellar dislocation with associated MRI scan changes consistent with that diagnosis as well as changes in the medial compartment with some evidence of interval change between two MRI scans suggests there was an acute component to the medial compartment injury.
Ms chick does not give any history of pre-existing symptomatic condition affecting her knee and Dr Doig does not provide any evidence of a pre-existing symptomatic condition, hence I cannot agree with Dr Doig's assessment that the injuries at work or a symptomatic exacerbation of a pre-existing condition

Dr Sharman provided a second report dated 26 March 2020. In the report Dr Sharman records the status of the applicant at the time of his assessment the purpose of this report as follows:
At the time of my review Ms Chick reported that she now only experiences knee symptoms if she does too much standing or walking. She still cannot walk at a fast pace or run, although she indicated that if she had to she might be able to do a “pretend jog”. She can, however, manage walking several kilometres at this slow pace.
Ms Chick reported that if she stands in the one position for too long she suffers with increased symptoms. She advised that in the course of her duties at times she needs to stand for prolonged periods on hard concrete floors e.g. when cruise vessels come into port and she is on duty in the terminal. She finds that her leg aches and it is difficult for her to manage a full six hours, although she can manage several hours at a time without too much difficulty.
Ms Chick reported that she can manage sitting at her desk in her office reasonably well. She uses a kneeling chair because her back. At times, her knee gets uncomfortable due to the pressure through the knee support. As a result, she tends to sit with her right leg to one side. She was hoping to obtain a sit-stand desk to make it easier for her to use her desk for sustained periods.
As outlined above Ms Chick reported that overall psychologically she is somewhat better due to her adjustment to her condition and her job. She currently takes no medication for knee pain itself, but continues to take Endep, fluoxetine, and Lyrica for her pre-existing condition of fibromyalgia. She no longer requires Panadeine Forte on an occasional basis, as she did at the time of my previous review.
Ms Chick reported that since my previous review she had developed a new medical condition that she described as “hives”. She confirmed that she had been diagnosed with urticaria and had seen Professor Cameron in Launceston who had prescribed various medications to keep that condition under control.
I enquired about Ms Chick’s functional status. She reported that she manages most aspects of her current job, although she gets uncomfortable with prolonged standing as outlined above. She can manage most of her household tasks, but still requires help with vacuuming duties at home. She has not been able to resume dancing, Zumba, or Thai boxing. She reported some continuing issues with stairs. She manages walking up stairs reasonably well, but on going down stairs, she is slow and needs to hold on to the handrail because of lack of confidence in her knee. At times her right knee catches in association with rotational movements. It can lock and then releases after a few seconds but without significant ongoing sequelae.
Dr Sharman reported his observations of the applicant following a physical examination as follows:
At my assessment on 11 March 2020 Ms Chick presented her history in a straightforward manner. She was able to stand comfortably, but was unable to demonstrate a full squat. She could get down to ground level, protecting her right knee, and could kneel, but indicated that this position was quite uncomfortable, and she could not sustain that position. At my formal assessment there was no evidence of any knee malalignment or swelling. There was medial joint line tenderness but a full range of movement. The knee appeared stable. There was minor joint crepitus and no significant symptoms with patellar pressure.
In his 26 March 2020 report, Dr Sharman concludes that the applicant's:

ongoing report of symptoms and improvement with the injection seem to confirm that the most significant symptomatic condition affecting her knee involves the medial compartment, although some symptoms arising from the patellofemoral joint are possible". He notes "I see no reason to alter the diagnosis are made previously". He states "I would not accept that it is unlikely that Ms Chick could have exacerbated medial compartment arthritis.
As stated in my previous report, it is difficult to accept that in the absence of the work events Ms chick would have a significantly symptomatic knee requiring restriction of her employment activities.
Dr Stanley-Clarke seems to accept the possibility of an exacerbation medial compartment symptoms as a result of the employment -related episodes, however differs in that he suggests that any such exacerbation should have ceased by now. In my view, the continuation of symptoms (perhaps contributed to by the arthroscopic assessment) has led to the development of the current situation. There is no convincing evidence that "absence the work incident" she would be currently asymptomatic.
Dr Sharman concludes:
Ms Chick's condition has improved with recent administration of a Synvic injection, but there are continuing symptoms related primarily to the medial compartment of the knee with pain on prolonged standing, some catching of the joint, and related symptoms. The patello-femoral joint appears relatively asymptomatic i.e. no pain with patella pressure.
With respect to the ongoing need for medical treatment, Dr Sharman concludes as follows:
It is appropriate that Ms Chick remain under review by her general practitioner with access to orthopaedic intervention with a view to further Synvisc injections, however I doubt she will come to surgical intervention.
I would agree with Mr Doig that further arthroscopic assessment or treatment in the absence of a further acute injury is more likely to contribute to a progression of symptoms than resolution.
In the very long-term it is possible Ms Chick will require knee replacement surgery, but that does not seem to be likely especially in the short to medium term.
With respect to the applicant’s ongoing incapacity Dr Sharman concluded:
Ms Chick is continuing in full-time alternative employment and I would expect that she will have ongoing partial incapacity for employment which would exclude her from returning to her previous occupational position. I expect she will be able to continue to work full-time in her current role which involves a mix of said entry office-based duties and some site work. Ms Chick does not have the capacity to return to operational duties where she may need to interact with offenders and participate in more physically-demanding tasks which float her knee or require her to run or walk at a fast pace.
With respect to the surgery undertaken in April 2018 and whether that was in relation to her work-related injuries, Dr Sharman stated:
It seems unlikely that surgery would have been recommended had it not been for the injury at work with ongoing symptoms and required further assessment.
Hence, I would accept that the surgery in April 2018 was undertaken in relation to her work-related injuries.
When asked his opinion in response to Dr Stanley-Clarke's assessment of 29 November 2018 Dr Sharman concluded:
While I would agree with Dr Stanley-Clarke that the injury was low-impact and low energy, and that there is limited evidence of any significant structural change within the knee, that does not exclude the possibility of ongoing pain symptoms caused by triggering of accelerated degenerative change and the development of symptoms. While I also agree that her symptoms are probably related to degenerative pathology in her knee, I would accept that the work-related injuries have been significant and important factors rendering her asymptomatic arthritis symptomatic i.e. trauma can contribute to progressive degenerative change. This is in combination with the arthroscopic procedure which has probably also contributed to the progression of the disease.
In his oral evidence, when asked whether when preparing his reports he had understood that the applicant had experienced no pain for the episodes prior to the two incidents that occurred in 2017, Dr Sharman told the Tribunal that he had understood that the applicant had previously experienced aches and pains but was not aware of anything that involves specifically her right knee. When asked whether or not the absence prior medical history would suggest pre-existing degenerative changes in the right knee Dr Sharman replied that “it is possible”. When asked whether or not the reference in the Newstead medical report to the applicant suffering sore knee symptoms in early 2017 would suggest degenerative changes Dr Sharman told the Tribunal “that doesn’t sound like degenerative change. I mean the whole picture of the circumstances described sounds more like some systemic problem of – and she’s got a history of fibromyalgia, it sounds more like fibromyalgia to me”. When asked whether fibromyalgia has the potential to be comorbid with degenerative changes in the knee Dr Sharman stated that in his view “fibromyalgia is generally a more widespread pain disorder, that could include pain in the knees, but more typically it’s in the muscles”. Dr Sharman went on to say that “Ms Chick may well have had some more widespread symptoms in the past. It’s possible it affected joints including the knees. But the reason why I think the incidents in employment are important is that she had some onset of pain in the knee in association with a particular activity of (indistinct) potential to hurt the medial meniscus and then subsequent to a referral for a specific purpose”.
On the basis of the evidence, the Tribunal is satisfied that as a result of the two workplace incidents that occurred on 27 September 2017 and in November 2017, the applicant suffered an injury in the course of her employment resulting in incapacity for work for the purpose of section 14 of the Act. The injury involved a partial dislocation of the applicant’s kneecap which occurred on 27 September 2017. The November 2017incident aggravated the injury.
In the Tribunal’s view, the weight of the medical evidence supports a conclusion that the injury had two direct consequential effects. The first, was damage to the right patellofemoral joint. The second was an exacerbation of a pre-existing early medial compartmental osteoarthritis of the applicant’s right knee.
This conclusion is consistent with the opinions of both Dr Stanley-Clarke and Dr Sharman. Dr Doig disagrees with this conclusion. In Dr Doig’s view, the manner in which the incident occurred is inconsistent with an exacerbation of osteoarthritis in the medial compartment. Dr Doig opines that based on his understanding that the first incident occurred in circumstances where the applicant was kneeling and therefore not engaged in any form of weight-bearing that could impact the medial compartment. The Tribunal does not accept this conclusion. In the Tribunal’s view, it is far from clear on the evidence that the first incident when considered in its entirety involved no form of weight-bearing that could impact the medial compartment. In any case, the Tribunal in this respect prefers the opinions of Mr Stanley Clarke and Dr Sharman given that they were both of the view that in the course of the two incidents the applicant had suffered an exacerbation of her medial compartment osteoarthritis. As described by Dr Sharman, the applicant’s pre-existing condition went from being asymptomatic to symptomatic as a result of the incidents.
This conclusion is further reinforced by Dr Sharman’s oral evidence where he questioned the suggestion that the incidents giving rise to the applicant’s injury were not weight-bearing in a manner that could impact the medial compartment. Dr Sharman told the Tribunal that while he could not be certain as to precisely what occurred in the context of the applicant’s injury, speaking in a more general sense his understanding is that “a person kneeling is, even though they might be weight bearing through their tibial tuberosity and not weight bearing as is normal when you’re standing, that muscle action or movements could easily transmit some force through the medial compartment”. Counsel for the respondent questioned the weight to be given Dr Sharman’s evidence in this respect on the basis that his expertise is more focused on back conditions rather than knee conditions and also due to Dr Sharman’s inability to cite specific examples of literature in support of his opinion. The Tribunal rejects this criticism. In the Tribunal’s view, the opinion that Dr Sharman expressed in this respect is within his area of expertise and the Tribunal accepts his explanation as to the basis upon which that opinion had been formed. In his oral evidence, Dr Stanley-Clarke told the Tribunal that his understanding of the second incident that occurred in November 2017 was that it had involved the applicant feeling her knee give way and then stumbling on the gangway. The Tribunal is satisfied that the applicant’s description of the incidents is consistent with the applicant having engaged in weight-bearing movements with the potential to impact the medial compartment of her knee.
The central question in respect of this matter is whether the injury is now resolved. The respondent contends that it is and it does so on the basis of an MRI undertaken in January 2018 which appears to show no ongoing physiological impact to the applicant’s patellofemoral joint. With respect to the applicant’s medial compartment osteoarthritis, the respondent contends that to the extent the applicant continues to experience symptoms in connection with such a condition it is a pre-existing condition and there is insufficient nexus with the 2017 incidents for a sufficient connection to the applicant’s employment to be established.
The conclusion that the physical injury to the patellofemoral joint has now resolved appears to be uncontroversial and is certainly consistent with the opinions of Dr Doig, Mr Stanley Clarke and also Dr Sharman. The Tribunal accepts that any damage caused to the applicant’s patellofemoral joint as a result of the two incidents is no longer present.
The key disagreement between the medical experts is with respect to the ongoing status of the second diagnosis, namely, the exacerbation of the applicant’s pre-existing medial compartment osteoarthritis. Mr Stanley Clarke maintains that any ongoing impact on the applicant’s medial compartment osteoarthritis has also been resolved. In his opinion, the resolution of that effect is “deemed” by the passage of time and also as a consequence of the “low impact” and “low energy” nature of the injury rendering her arthritis symptomatic. He noted that there is “no evidence to support any significant injury at the time which would cause ongoing effects. I would expect the influence of this exacerbational injury to have settled within six weeks and any ongoing symptomatology would be attributable now to her ongoing arthritic pathology”.
Dr Sharman offers a different opinion. Dr Sharman is of the view that the applicant’s ongoing knee pain is referable to the medial compartment. He reaches this view based on his review of all the medical records he was provided with as well as his own assessment of the applicant. He was of the view that “although the patellofemoral compartment of the injury has settled, she has been left with progressive degenerative change affecting the medial compartment, as evidenced by the MRI scan and clinical findings with medial joint line tenderness and pain on weight-bearing, particularly with loading of the medial compartment”. Dr Sharman expressed the view that he found it difficult to accept that in “the absence of the work events Ms Chick would have a significantly symptomatic knee requiring restriction of her employment activities”. Dr Sharman rejects Dr Stanley-Clarke’s view concluding "I do not agree with Dr Stanley-Clarke that the effects of the injuries have ceased. His opinion seems arbitrary and not based on any historical or other clinical evidence”. Having considered Dr Stanley Clarke’s evidence carefully, the Tribunal agrees with Dr Sharman on this point. In the Tribunal’s view, the weight given to Dr Stanley Clarke’s opinion on this issue is materially lessened as a consequence of that opinion being based on what he might “expect” to have occurred or “deem” to have occurred and not on a more careful consideration of the applicant’s actual presentation and experience of the impact of injury. The Tribunal accepts Dr Sharman’s opinion that the fact that the applicant’s significantly symptomatic knee requiring restriction of her employment activities first occurred in the immediate aftermath of the two incidents and that the applicant has continued to experience pain attributable to her medial compartment would lend strong support to a conclusion that the physiological impact of the applicant’s injury is ongoing.
A further issue that emerged in the course of this matter involved the extent to which the applicant suffered a further impact to the underlying condition of the knee as a consequence of the arthroscopy undertaken by Dr Burtiac in April 2018, and whether that should be viewed as an extension of the applicant’s current injury or, alternatively, form the basis for a new and separate claim. The weight of the independent medical evidence suggests that the surgical intervention was not ideal in all the circumstances although Dr Stanley-Clarke expressed a different view in his oral evidence. The Tribunal accepts Dr Sharman’s opinion that it is likely that the procedure was undertaken, in part, in the treatment of her present condition and that the procedure further exacerbated the impact of that condition. The Tribunal accepts the applicant’s contention that there is a causal link between the initial injury and the consequences of that procedure and that the procedure did in fact exacerbate the applicant’s underlying condition. However, the Tribunal does not in any way rely on that further impact in reaching its conclusions with respect to this matter. In the Tribunal’s view, the applicant’s experience of pain arising from the injury has been ongoing, although it accepts that her experience of pain further intensified in the weeks following the surgical procedure.
The Tribunal is satisfied that the applicant has suffered an incapacity for work as a result of her injury and that that incapacity is ongoing. The evidence before the Tribunal was that as a consequence of the applicant’s injury, the applicant was restricted in her normal duties on her initial return to work and, since that time, continues to be unable to return to her previous operational role. In that respect, the Tribunal is satisfied that the applicant has, as a consequence of her injury, not been able to return to a role at the same level having regard to the nature and characteristics and degree of difficulty of her previous operational role.[2] This conclusion is supported by the opinion of Dr Sharman which the Tribunal accepts.
[2] See Re Prica and Comcare (1996) 44 ALD 46.
The Tribunal is also satisfied on the basis of Dr Sharman’s opinion that the applicant requires ongoing treatment in the effective management of her injury.
The respondent contends that the applicant’s ongoing pain symptoms are a consequence of pre-existing conditions or other non-work-related factors including, in particular, the applicant’s fibromyalgia or the suggestion of a broader chronic pain condition. The Tribunal does not accept this contention. The Tribunal certainly accepts that the applicant suffers from fibromyalgia. It is not satisfied based on the evidence that she suffers from some other form of chronic pain condition. However, the Tribunal accepts the applicant’s evidence that the pain she experienced in response to the injury was sharp and specific and that she continues to suffer that pain. In that sense the symptoms are quite distinct to the applicant’s description of her fibromyalgia which was general and moves around her body. The Tribunal is also satisfied that the pain symptoms that the applicant has described are quite distinct to her description of previous knee soreness. In the Tribunal’s view these conclusions are consistent with the opinion of Dr Sharman who noted on further examination that the applicant did not appear to suffer from patella related pain but rather very specific pain associated with her medial compartment.

The respondent contends that any exacerbation of the applicant’s pre-existing medial compartment osteoarthritis is a new injury and that, applying the authority in Canute v Comcare (2006) 226 CLR 535, it requires the Tribunal to be satisfied that the exacerbation involved a physiological change to the applicant’s medial compartment and that the applicant’s employment has contributed to a significant degree in the acceleration of the underlying condition. The applicant contends that this is the wrong test and that the proper question is whether or not the applicant’s injury has resulted in her incapacity for work, citing the decision in Zdziarski v Telstra Corporation Limited [2015] FCA 207.
In the Tribunal’s view this case involves a physical injury in the sense that it involved a sudden identifiable physiological onset. The Tribunal is satisfied that there is a physiological change of some form to the applicant’s medial compartment as a result of the applicant’s workplace injury. The applicant suffered pain and swelling in response to the specific set of workplace events occurring in September and November 2017. In his oral evidence Dr Stanley-Clarke told the Tribunal, there is a physiological change that has resulted from the applicant’s injury. He told the Tribunal “there is inflammatory fluid produced, such that some joints will swell and there are chemicals within that inflammatory [fluid which] gives rise to pain. ... So.... in a joint that has arthrosis, there is a disease process present that goes on into the inflammatory phase of the disease, referred to as arthritis, we do have a changed physiological state and consistent with her history, it would appear that following a kneeling on the knee and then subsequently loading the knee up a gangway, we morphosised from an inactive to an active state of arthritis and the physiology would change and the physiology is changed because of the inflammatory process of the arthritis”. While Dr Sharman could not point to specific evidence of such a change in any of the investigative reports, he did express the view:
I expect that at a microscopic level the progression is often related to physical incidents that cause microscopic level change, even though this is difficult to demonstrate with currently-available imaging. The history would suggest that the work-related injuries have accelerated pre-existing arthritis.
The respondent contends that there is no evidence of an ongoing impact and cites Dr Stanley-Clarke’s evidence that any exacerbation of the applicant’s medial compartment osteoarthritis has resolved and notes the absence of any active activity in the applicant’s most recent bone scan. The Tribunal does not agree. The Tribunal is persuaded by Dr Sharman’s evidence on this point. Dr Sharman made clear in his oral evidence that the absence of any observable activity in a bone scan does not rule out ongoing damage to the medial compartment. Dr Sharman stated that in his opinion the applicant’s ongoing pain, and the specific type of pain she describes, is strongly suggestive of an ongoing physical impact as a consequence of the injury. In the Tribunal’s view, Dr Stanley-Clarke’s written reports make clear that his conclusion that the injury has resolved was not based on a specific consideration of the applicant’s ongoing condition, nor the presentation in her most recent bone scan, but rather his expectation, based on his understanding of the physical incidents giving rise to the applicant’s injury, that the immediate physiological impact to the medial compartment would have resolved within a matter of weeks. In the Tribunal’s view, consistent with Dr Sharman’s evidence, the applicant’s ongoing pain symptoms, specific to the medial compartment of her knee, would strongly suggest otherwise. It is also noteworthy that when Dr Butorac first examine the applicant in January 2018 he observed that the pain the applicant was describing was over the medial aspect of the knee with intermittent swelling. That is the same description of pain that the applicant described post the surgical intervention albeit it with greater intensity at that point. It is also consistent with the pain the applicant continues to describe consistent with Dr Sharman’s opinion.
In the Tribunal’s view, as a result of the two workplace incidents, the applicant has suffered a physical injury to her knee in the form of a partial dislocation one effect of which has been, and continues to be, the exacerbation of her pre-existing medial compartment osteoarthritis. This injury has had a physiological impact on the applicant’s knee and has resulted in the applicant suffering significant ongoing pain and also resulted in her suffering an ongoing incapacity for work. In the Tribunal’s view, on the facts of this case, the preconditions for the respondent assuming liability for compensation in respect of the injury, including the cost of medical treatment and also the payment of compensation for incapacity under sections 14, 16 and 19 the Act are made out. There is no question in the mind of the Tribunal that the injury occurred in the course of her employment. There is no doubt that the applicant continues to suffer significant ongoing pain symptoms as a consequence of that injury and that she continues to be incapacitated for work as a result.
However, if the applicant’s injury in this case was to be viewed as an aggravation of a disease for the purpose of section 5B of the Act, there is also no question in the Tribunal’s mind that such an aggravation has been contributed to a significant degree by the applicant’s employment having regard to the nature and effect of the incidents that occurred at her work in September and November 2017 and the ongoing impact of those incidents as described above.
For these reasons, the Tribunal is satisfied that the decision under review should be set aside and substituted for a decision that the respondent has ongoing liability in respect of the applicant’s knee injury causing exacerbation of her pre-existing medial compartment osteoarthritis the purpose of sections 16 and 19 of the Act.
DECISON
The reviewable decision dated 2 September 2019 is set aside and in substitution the Tribunal makes the following decision:
(a)The applicant suffers from a right knee injury and subsequent aggravation causing symptomatic exacerbation of early medial compartmental osteoarthritis as a result of the incidents occurring at her work on 26 September 2017 and November 2017.
(b)From the date of the injury to the present date the applicant requires reasonable medical treatment in respect of the injury for the purpose of section 16 of the Act.
(c)From the date of the injury to the present date the applicant suffers incapacity for work as a result of the injury for the purpose of section 19 of the Act.
(d)From the date of the injury to the present date the respondent must pay to the applicant:
(i)the costs of all reasonable medical and related treatment expenses incurred in respect of injury pursuant to section 16 of the Act.
(ii)weekly payments of compensation in respect of incapacity for work for all periods pursuant to section 19 of the Act.
(e)The respondent must pay the applicant's reasonable costs and disbursements in respect of these proceedings pursuant to section 67 of the Act.

I certify that the preceding 104 (one hundred and four) paragraphs are a true copy of the reasons for the decision herein of

...[sgn].....................................................................
Associate
Dated: 5 July 2023

Dates of hearing: 27 January 2022

Representative for the Applicant: Mr Hilliard

Solicitors for the Applicant: Slater & Gordon Lawyers

Representative for the Respondent: Ms Wallace

Solicitors for the Respondent: Australian Government Solicitor

Dates of hearing:	27 January 2022
Representative for the Applicant:	Mr Hilliard
Solicitors for the Applicant:	Slater & Gordon Lawyers
Representative for the Respondent:	Ms Wallace
Solicitors for the Respondent:	Australian Government Solicitor