Chimungeni-Brassington and Comcare (Compensation) - [2022] AATA 219

Chimungeni-Brassington and Comcare (Compensation) [2022] AATA 219 (15 February 2022)
Division:GENERAL DIVISION
File Number(s): 2020/4689
Re:Jane Chimungeni-Brassington
APPLICANT

ComcareAnd
RESPONDENT

DECISION
Tribunal:Mr S. Webb, Member
Date:15 February 2022
Place:Canberra

The decision under review is affirmed.
……...[Sgd]………
Mr S. Webb, Member
Catchwords
WORKERS COMPENSATION – physical injuries resulting from fall at work – claim for compensation – subsequent notification of right shoulder condition – jurisdiction – scope of claim – frank injury or disease – onset and diagnosis of symptoms – employment contribution not established to a significant degree – progress of degenerative condition – aggravation – not established condition made worse by employment – decision affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988 ss 5A, 5B, 14, 54, 60, 62, 64
Cases
Comcare v Muir [2016] FCA 346
Lees v Comcare [1999] FCA 753
Sellick v Australian Postal Corporation [2009] FCAFC 146
Szabo v Comcare [2012] FCAFC 129
Woodhouse v Comcare [2021] FCAFC 95

REASONS FOR DECISION
Mr S. Webb, Member
15 February 2022

One day, in the course of her employment as a Senior Policy Officer at the Australian Fisheries Management Authority (AFMA), Jane Chimungeni-Brassington[1] missed her step and fell down a flight of stairs. She sustained a number of injuries in the fall. Comcare accepted her initial compensation claim and paid compensation for medical treatment expenses and incapacity to work. Almost one year later, Ms Chimungeni-Brassington notified Comcare of a right shoulder problem that she attributes to the fall or to other circumstances in her employment. Comcare decided to reject this claim by primary determination and on reconsideration. Ms Chimungeni-Brassington disagrees with these decisions and applied for review by the Tribunal.
[1] The Applicant goes by different names, including Jane Chimugeni-Brassington, Jane Brassington and Jane Mbendo. These names appear in some of the documents. Adequate explanations have been given for her use of family and marital names. I am satisfied that each of these names refers to the Applicant.
Issues
The issues for determination are:
(a)the scope of the Tribunal’s jurisdiction to decide Ms Chimungeni-Brassington’s right shoulder claim on 17 December 2019 and, in particular, whether the Tribunal has jurisdiction to decide if Ms Chimungeni-Brassington sustained a right shoulder injury when she fell down a flight of stairs on 16 May 2019 in the course of her employment;
(b)whether Ms Chimungeni-Brassington suffered from a right shoulder disease, being an ailment to which her employment contributed to a significant degree;
(c)whether Ms Chimungeni-Brassington sustained a frank right shoulder injury, being an injury (other than a disease); and
(d)whether Comcare is liable to pay Ms Chimungeni-Brassington compensation in respect of a right shoulder injury.
Aside from the jurisdictional point, the issues engage s 5A, s 5B and s 14 of the Safety Rehabilitation and Compensation Act 1988 (SRC Act).
Jurisdiction
Ms Chimungeni-Brassington asserts that the Tribunal has jurisdiction to consider her right shoulder injury under the original claim for compensation she made after and in respect of injuries she sustained as a result of the fall on 16 May 2019. In her submission, the language used in the claim[2] must be read with the notice she gave of the incident.[3] When the claim is considered in that context, she asserts it is very clear that the claim includes an injury to her right shoulder. Furthermore, she contends that the fall was of a serious and shocking nature, details of which are set out in statements of those who witnessed it or attended shortly afterwards,[4] and this should also inform a proper construction of the claim.
[2] T7.
[3] T8, folios 74-77.
[4] T8, folios 78-82.
Ms Chimungeni-Brassington argues that a claim must be given a broad or generous construction, especially as it was completed at a time when she was suffering the effects of injuries sustained in the fall. It is a matter of principle and law, she argues, that the powers conferred upon the person who made the primary determination to refuse her right shoulder injury claim on 20 March 2020[5] were available to the person who reconsidered and affirmed that decision on 28 May 2020.[6] Both decision-makers were able to decide if she sustained a right shoulder injury in the fall on 16 May 2019 and, so the argument goes, the Tribunal exercises the same powers and it has jurisdiction and power to make a decision of that kind.
[5] T46
[6] T51.
Comcare does not agree. In Comcare’s submission, the incident report and the claim Ms Chimungeni-Brassington lodged on 22 May 2019 do not expressly refer to Ms Chimungeni-Brassington’s right shoulder being injured or hurt in the fall; nor do the statements of people who witnessed the fall. Comcare argues that it is not permissible to construe a claim form to include alleged injuries that are not referred to or evident in its terms. While legal precision or medical accuracy may not be essential, and some latitude may be allowed when construing a claim, Comcare contends that this does not permit such a broad or generous construction to encompass an alleged injury with proper notice and particulars of the alleged injury being provided.
It is Comcare’s submission that when the notice Ms Chimungeni-Brassington gave and the claim she made on 22 May 2019 are properly considered, on any fair reading, they do not extend to a right shoulder injury. Comcare asserts that the primary and reconsideration decision-makers did not have power to determine a claim that was not made, rather each had power to determine if the notice Ms Chimungeni-Brassington signed on 17 December 2020[7] amounts to a claim and, if so, to determine the claim as made.
[7] T37A.
In Comcare’s submission the 17 December 2020 notice sets out the nature of the injury claimed, the circumstances in which it allegedly arose and the date on which it was first noticed. Even if the notice amounts to a properly made claim, it is the terms of the claim made, in respect of the particular injury and the circumstances in which it allegedly arose, that must be fairly considered. That, Comcare maintains, is what the primary and reconsideration decision-makers did, and the Tribunal is similarly bound.
The Tribunal’s jurisdiction is conferred under s 64 of the SRC Act. It is for review of a reconsideration decision made under s 62 in respect of a determination made under s 60 of that Act. This is the tiered review mechanism the Full Federal Court referred to in Less v Comcare,[8] to which Flick J adverted in Comcare v Muir[9] when referring to the flexibility that may be allowed in the formulation of a claim. Nevertheless, for the purposes of s 54 of the SRC Act, a claim must convey sufficient information about the alleged injury and the circumstances in which it arose to permit Comcare to make a properly informed decision about whether the claim should be met.
[8] [1999] FCA 753.
[9] [2016] FCA 346 at [13] and [30].
On 17 December 2020, Ms Chimungeni-Brassington completed a Comcare Notification of a Reported Condition form.[10] In this form, she included the following information:
[10] T37A.
1.    What is the condition that you are claiming for?
…
Right shoulder bursitis and torn tendon
XRAY SENT TO DOCTOR DIKSHATA
2.    When did you first notice your symptoms/injury?           Date 27/11/2019
3.    When did you first seek medical treatment for this condition?     Date 9/12/2019
4.    Name/contact details of treating medical practitioner(s).
Dr Rangarajan Dikshata
…
5.    Describe how this injury or illness has been caused by your existing compensable condition.
The injury in my left shoulder left me using my right hand for all my activities. In the process I have strained it to the extent of an injury.
…
Injury/condition
Strain and injury of Right Shoulder related to accident at work.[11]
[11] Ibid, folios 168 and 169.
As can be seen, the terms of this claim and the alleged mechanism of the claimed injury are quite clear.
The claim does not refer to a frank injury to Ms Chimungeni-Brassington’s right shoulder in the fall on 16 May 2019. It does not refer to a right shoulder injury that is attributable to the fall, rather it is made in respect of a right shoulder injury resulting from overuse as a result of a left shoulder injury.
The oblique reference to the claimed right shoulder injury being related to accident at work does not compel any different construction. It is quite clear that Ms Chimungeni-Brassington is relating her claimed right shoulder injury to the left shoulder injury that was caused by the fall on 16 May 2019. No more direct link to the 16 May 2019 fall can be drawn from the contents of this form.
From this it follows that the claim Ms Chimungeni-Brassington made on 17 December 2020 does not extend to include a right shoulder injury allegedly caused by falling down a flight of stairs at work on 16 May 2019.
But that is not the end of the jurisdictional point. There is a question whether the primary and reconsideration decision-makers had power to determine if Ms Chimungeni-Brassington’s original claim on 22 May 2019 was sufficiently broad to encompass a right shoulder injury.
The terms in which Ms Chimungeni-Brassington’s compensation claim was put on 22 May 2019 include the following references:
Numerous injuries resulting from fall down the stairs including two fractures to the spine. Extent of injury still being determined by Doctor.
…
Body stressing and pain, bruises on knee and fracture in the spine and other related injuries following doctor’s assessment.[12]
[12] T7, folio 62.
The notice of injury Ms Chimungeni-Brassington gave to her employer on 22 May 2019 includes a number of check boxes, specifying which parts of the body are affected. The blank form and the completed form are in evidence.[13] The blank form contains references to Shoulder R/L and Upper Arm R/L. In the form Ms Chimungeni-Brassington completed, it appears that she deleted R in respect of her shoulders and she deleted L in respect of her upper arms. Her evidence is that she interpreted the form in a way that allowed only a single choice in respect of each body part. She asserts that she experienced symptoms in her right shoulder as well as her left and that is what she intended to convey. Her evidence on this point is not persuasive, however. The form is clear enough in its terms and Ms Chimungeni-Brassington is a highly educated and very skilled Senior Policy Officer.
[13] See Exhibit 2, Attachment JCB1.
Whatever is to be made of her evidence, the notice does not convey information about a right shoulder injury to her employer or to Comcare. It does, however, point to her right upper arm being affected in the fall. It is conceivable that a lay person without medical training or detailed physiological knowledge may have some difficulty drawing a precise distinction between their upper arm and their shoulder. But that is not what the notice form requires, rather it refers to Shoulder and Upper Arm as different body parts. It is for a person completing the form to decide which best describes the parts of their body that are affected. The words are open to a literal interpretation in general terms, without precise medical definition: the word shoulder refers to a joint between the arm and the torso, whereas the words upper arm refer to the upper arm.
Nevertheless, the reference to Upper Arm R might leaves open the possibility that it includes Ms Chimungeni-Brassington’s right shoulder.
In order to resolve that uncertainty, it is reasonable to consider other relevant information that was before Comcare when Ms Chimungeni-Brassington’s right shoulder injury claim was determined, especially information from Ms Chimungeni-Brassington’s treating doctor to which she refers in her claim form and from people who witnesses her fall.
Ms Chimungeni-Brassington’s treating doctor at the time of her fall on 16 May 2019 was Dr Taumoepeau, a general practitioner. He issued a medical certificate on that day in which he referred to lower back pain but did not mention any other symptoms.[14] The doctor issued a number of medical certificates in the period to 26 July 2019, none of which refer to any symptoms in Ms Chimungeni-Brassington right shoulder.
[14] T5, folio 24.
On 22 July 2019, Dr Tsai, an orthopaedic surgeon, examined Ms Chimungeni-Brassington and reported:
She complains of lower back pain on the right side which is getting better. She still takes Panadeine Forte on a required basis. She does not have any radicular pain. As she fell, she tried to break the fall and she has also noticed pain in her left shoulder. Prior to the incident she never had any problems with her left shoulder or lower back.[15]
[15] T12, folio 96.
On 19 September 2019, Dr Dikshata, Ms CDB’s then treating general practitioner, issued a medical certificate in which he referred to:
# right transverse process of L4, + possible rotator cuff tear left shoulder
…
Recovery is in progress, issues with her having pain left shoulder which apparently happened when she was injured but the pain worsened after 12/06/2019[16]
[16] T5, folio 39.
Subsequent clinical notes Dr Dikshata recorded include express references to left shoulder symptomatology but the first reference to Ms Chimungeni-Brassington’s right shoulder is on 9 December 2019:
… says is having a pain right shoulder, tosses and turns in bed aggravating the pain, has not been having exercises for the back, no trauma to right shoulder, right UL dominance
…
Tender, right, shoulder restticed [sic] ROM – External rotation and abduction. (not work related).[17]
[17] T45, folio 203.
Dr Dikshata noted persisting right shoulder symptoms in subsequent clinical notes, none of which suggest that those symptoms resulted from a traumatic right shoulder injury.
On 16 December 2019, an ultrasound of Ms Chimungeni-Brassington’s right shoulder was reported to show:
A 10 x 9mm partial thickness bursal surface tear of the supraspinatus tendon noted. The remaining cuff tendons are intact.
The SASD bursa is thickened impinging on abduction.
The AC joint is non tender.[18]
[18] T37B, folio 170.
On 5 March 2020, Dr Dikshata provided a report to Comcare, in which he stated:
No, her right shoulder condition is not directly related to her compensable condition, though she may have reported a left shoulder condition (AC Ligament sprain – left). She did not complain of pain right shoulder at the time of injury in May 2019. I have clearly made a note in my progress notes dated 09 December 2019 about this.
…
I cannot see a direct relation to Dr. Brassington’s injury in May 2019 affecting/causing her right shoulder condition. She is right hand dominant, and uses her right upper limb essentially for work as an administration person. Though she had an injury to her left shoulder and had some restricted ROM on her left side, I feel the same may not have contributed to her right shoulder condition (which started nearly 6 months after injury and she was not immobilised on her left side).[19]
3. … On the balance of probability as opposed to possibility, would DR Chimungeni-Brassington suffer from her right shoulder injury if not for her work related injury of 16 May 2019?
…
The answer to the second part of your question is – YES, she could have still had the right shoulder condition, whether she had the jury [sic] or not as they are not related.[20]
[19] T45, folio 195.
[20] Ibid, folio 196.
On 20 March 2020, Comcare determined to reject Ms Chimungeni-Brassington’s right shoulder injury claim. The claims manager stated:
I am not satisfied there is a causal relationship between your claimed right shoulder condition and your compensable left shoulder and neck conditions. This means your claim has been denied under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).[21]
[21] T46, folio 209.
With regard to information provided by people who witnessed Ms Chimungeni-Brassington’s fall down the stairs on 16 May 2019, this too does not disclose any assertion or suggestion of an injury to Ms Chimungeni-Brassington’s right shoulder.
Selvy Coundjidapam provided a detailed account of what occurred, including a reference to Ms Chimungeni-Brassington trying to find a grip as she was falling, and the examination undertaken by a First Aid Officer immediately after the fall. There is no reference to a right shoulder symptom or injury.[22]
[22] T8, folios 78-80.
Danait Ghebrezgahbier also provided a detailed statement having witnessed Ms Chimungeni-Brassington’s fall. Her account does not make any reference to right shoulder symptoms or a right shoulder injury.[23]
[23] T8, folio 82.
Other contemporaneous records, including statements of Evelyn Walkden and Lisa Cocking, a first aid officer who attended Ms Chimungeni-Brassington immediately after her fall, include no reference to her complaining of right shoulder symptoms or an injury to her right shoulder.
Considering the information from Ms Chimungeni-Brassington’s treating doctors and people who witnessed her fall on 16 May 2019 and attended her shortly thereafter, there is no suggestion that she sustained a right shoulder injury in the fall. There is nothing in the contextual materials relevant to and contemporaneous with her 17 December 2019 claim that informed Comcare of that possibility or that required the claim form she lodged on 22 May 2019 to be construed to include such an alleged injury to her right shoulder.
The Tribunal has the benefit of hindsight and, from this distance, it can be seen that Ms Chimungeni-Brassington expressly asserted a causal nexus between her right shoulder condition and the fall on 16 May 2019 for the first time on 6 April 2020, in her request for reconsideration of Comcare’s 20 March 2020 determination.[24]
[24] T48.
It appears that the reconsideration decision-maker was alive to Ms Chimungeni-Brassington’s assertion that her claimed right shoulder condition was causally related to the fall on 16 May 2019. The decision-maker made a determination on that point:
… I am not satisfied on the balance of probabilities that you sustained an injury to your right shoulder in the subject incident of 16 May 2019.[25]
…
I find that your right shoulder injury was not significantly contributed to by your accepted compensable injury.
…
I have decided to affirm the determination dated 20 March 2020 and declined liability for right shoulder injury under section 14 of the SRC Act.[26]
[25] T51, folio 234.
[26] Ibid, folio 235.
On this history, it is quite clear that Ms Chimungeni-Brassington’s 17 December 2019 claim was not in respect of a right shoulder injury caused by or arising out of her fall on 16 May 2019, rather it was in respect of overuse of her right upper limb because of her left shoulder injury. That is the claim the primary decision-maker determined.
It may not be necessary for the alleged cause of a medical condition to be set out with great precision where a sufficient connection with the employment exists.[27] Nevertheless, the requirement of s 54 must be complied with, at least to the extent that the claim sets out sufficient information to enable Comcare to comprehend the matters it is being called upon to determine. In some circumstances a change in the asserted cause of a claimed injury may be permissible without requiring a new claim to be made in respect of a different injury.[28] In circumstances of the present kind, the issue is whether the change is sufficiently fundamental as to indicate that a different injury is being asserted.[29]
[27] Szabo v Comcare [2012] FCAFC 129, per Emmet and Greenwood JJ at [34].
[28] Sellick v Australian Postal Corporation [2009] FCAFC, per Buchanan J, with whom Mansfield and McKerracher JJ agreed at [23].
[29] Comcare v Muir [2016] FCA 346 at [13]-[16].
This is such a case. The change in Ms Chimungeni-Brassington’s claim from asserting an overuse injury arising in December 2019 to an alleged traumatic injury caused by her fall on 16 May 2019 is sufficiently fundamental to indicate that a different injury is being asserted.

The assertion of a right shoulder injury caused by or arising out of the fall on 16 May 2019 was first made on 6 April 2020. That claim expanded Ms Chimungeni-Brassington’s 17 December 2019 claim.
The expanded claim was first determined, negatively, on 28 May 2020, albeit in the context of reconsideration of her 17 December 2019 claim. This amounts to a primary determination of Ms Chimungeni-Brassington’s expanded claim in which she asserted a causal link between her claimed right shoulder condition and her fall on 16 May 2019. This determination has not been the subject of reconsideration under s 62 of the SRC Act.
From this it follows that the Tribunal does not have jurisdiction under s 64 to review that decision. The Tribunal’s jurisdiction is in respect of the reconsideration decision in which the primary determination to reject Ms Chimungeni-Brassington’s claim in respect of an overuse injury to her right shoulder.
Disease
Considering s 5A(1)(a) and s 5B of the SRC Act, Ms Chimungeni-Brassington’s right shoulder ailment will amount to a disease if it was contributed to, to a significant degree, by her employment.
The ailment in Ms Chimungeni-Brassington’s right shoulder was investigated by ultrasound. She had a partial thickness bursal surface tear of the supraspinatus tendon with thickening of the SASD bursa and impingement on abduction.[30] On the evidence of Dr Mourad (a consultant orthopaedic surgeon) the ailment is diagnosed as Right shoulder rotator cuff tendinopathy, bursitis and impingement.[31] This diagnosis is supported by Dr Dikshata’s evidence and it can be accepted.
[30] T37b, FOLIO 170.
[31] Exhibit 7, page 9.
Dr Pillemer (another consultant orthopaedic surgeon) reported that Ms Chimungeni-Brassington’s right shoulder condition involved bilateral axillary nerve damage.[32] Dr Pillemer was closely examined about the basis of his diagnostic opinion, which stands alone in the evidence. The doctor accepted that the partial thickness tears of Ms Chimungeni-Brassington’s right shoulder supraspinatus tendon and bursitis were part of her complaint. Dr Mourad disagreed and reported no evidence of axillary nerve damage. It is possible that Ms Chimungeni-Brassington has some axillary nerve damage bilaterally, but this is not presently established on the balance of probabilities.
[32] Exhibit 8, report dated 24 November 2020, page 4.
With regard to the onset of Ms Chimungeni-Brassington’s right shoulder rotator cuff tendinopathy, bursitis and impingement, this first reliable evidence of symptoms is the clinical note of Dr Dikshata on 9 December 2019. The records of physiotherapy treatment Ms Chimungeni-Brassington obtained from Josie Pepper, a physiotherapist, after her fall on 16 May 2019 do not expressly or reliably refer to her complaining of right shoulder symptoms or any related restriction on the range of right shoulder motion until 10 December 2019.[33]
[33] Exhibit 3.
It is Ms Chimungeni-Brassington’s evidence that she suffered from right shoulder symptoms and pain immediately after the fall on 16 May 2019, but those symptoms were of secondary importance and they were pushed into the background by her lower back injuries. The evidence of her husband lends support to her account. Ms Chimungeni-Brassington asserts that she reported right shoulder symptoms to Dr Taumoepeau at the time. There is no evidence to support this assertion, although the incident report Ms Chimungeni-Brassington completed on 22 May 2019 refers to right upper arm symptoms. Ms Chimungeni-Brassington’s account of her interpretation of the form, in which she understood she was to choose between left or right, is not persuasive. As can clearly be seen, she did not make a choice between right and left when checking boxes next to Lower Leg R/L and Fingers R/L.[34] I am reasonably satisfied that Ms Chimungeni-Brassington completed the form to most accurately reflect the symptoms she was experiencing at the time, and she did not indicate she was experiencing symptoms in her right shoulder.
[34] T8, folio 75; Exhibit 2 refers.
In my assessment, it is likely that Ms Chimungeni-Brassington experienced the gradual onset of right shoulder symptoms in the period immediately prior to 9 December 2019, as reported to Dr Dikshata or Ms Pepper.
On the question of causation, Dr Mourad reported that Ms Chimungeni-Brassington’s right shoulder rotator cuff tendinopathy, bursitis and impingement was probably attributable to an age-related degenerative process, predisposed by certain anatomical variance. It was the doctor’s opinion that Ms Chimungeni-Brassington would probably have developed this condition irrespective of her employment.[35]
[35] Exhibit 7, page 10.
Dr Pillemer’s opinions about the cause of Ms Chimungeni-Brassington’s right shoulder condition was predicated on the onset of symptoms consequent to her fall on 16 May 2019. It was his opinion that, absent the fall, Ms Chimungeni-Brassington would not have developed bilateral shoulder problems. Dr Pillemer explained that after the fall Ms Chimungeni-Brassington protected her injured left shoulder and this would have placed greater stress on her right shoulder. His evidence is that, if Ms Chimungeni-Brassington’s right shoulder was not entirely normal, the additional stress could explain Ms Chimungeni-Brassington’s right shoulder symptoms on a consequential basis.
Dr Dikshata initially reported that Ms Chimungeni-Brassington’s right shoulder symptoms were not related to her fall. Subsequently, the doctor changed his opinion and gave evidence that the fall may have resulted in a traumatic change in Ms Chimungeni-Brassington’s right shoulder that could explain her symptoms in December 2019. When closely examined on this point, Dr Dikshata considered that traumatic injury or wear and tear might explain her right shoulder symptoms.
Considering the medical evidence, on balance, it is possible that Ms Chimungeni-Brassington sustained some kind of sub-clinical traumatic change in her right shoulder when she fell on 16 May 2019, but this is not established on the balance of probabilities. On the evidence of Dr Mourad and Dr Dikshata, it is more probable that her right shoulder symptoms are attributable to degenerative processes related to age, anatomy and wear and tear.
On Dr Pillemer’s evidence, it is possible that Ms Chimungeni-Brassington favoured her left shoulder and this may have placed additional stress on her right shoulder. Dr Mourad accepted that this might occur. On the clinical notes of Dr Dikshata, it appears that Ms Chimungeni-Brassington was experiencing significant left shoulder symptoms in November 2019 and it is probable that she was favouring her left shoulder at that time. I accept that this may have caused her to use her right upper limb in a compensatory manner and this may have placed increased stress on her right shoulder. Dr Pillemer was very clear, however, that any such additional stress would not be expected to cause symptoms in an otherwise normal shoulder. The implication to be drawn from this evidence is that Ms Chimungeni-Brassington’s right shoulder was not normal at the time.
Weighing the evidence of Dr Pillemer, Dr Mourad, Dr Dikshata and Ms Pepper, I am reasonably satisfied that Ms Chimungeni-Brassington’s right shoulder ailment was a result of degenerative processes and the resulting changes in her right shoulder were acted upon to some degree by additional stresses caused by favouring her left shoulder. When one considers the nature and extent of the duties Ms Chimungeni-Brassington was undertaking in her employment as a Senior Policy Officer, it is possible that some additional stress might have been placed on her right shoulder when performing her duties. Having regard to the circumstances of her employment and her duties at the time, the extent of any employment contribution to her right shoulder ailment is difficult to assess. I am not persuaded, however, that this contribution to the onset or progress of her right shoulder ailment and related symptoms was to a significant degree, being a degree that is substantially more than material.
Thus, in conclusion on this point, I am reasonably satisfied that Ms Chimungeni-Brassington’s right shoulder ailment became symptomatic shortly before 9 December 2019. It is more likely than not that her right shoulder ailment was caused by degenerative processes. It is probable that favouring her left shoulder placed additional stress on her right shoulder, and this may have contributed to the onset of her right shoulder symptoms to some degree.
The present evidence does not suggest that her employment was a significant contributing factor. It is not established that Ms Chimungeni-Brassington’s employment contributed, to a degree that is substantially more than material, to the onset or progress of her right shoulder ailment or any related symptoms.
That being so, Ms Chimungeni-Brassington’s right shoulder ailment is not a disease or an aggravation of a disease for the purposes of s 5B and s 5A(1)(a) or (c) of the SRC Act.
Frank injury
It can be accepted that Ms Chimungeni-Brassington had clear evidence of right shoulder pathology: a partial thickness surface tear of the subacromial tendon and thickening of the bursa.
On the evidence of Dr Mourad, Dr Pillemer and Dr Dikshata, physiological changes of this kind Ms Chimungeni-Brassington’s right shoulder may arise spontaneously or from degenerative processes associated with aging and other factors, or from trauma.
The present evidence does not suggest that Ms Chimungeni-Brassington experienced a sudden or identifiable physiological change that would be consistent with a frank injury in the period immediately prior to 9 December 2019.
It follows that Ms Chimungeni-Brassington’s right shoulder condition does not amount to an injury (other than a disease) for the purposes of s 5A(1)(b) of the SRC Act.
Liability
As it is not established that Ms Chimungeni-Brassington sustained an injury to her right shoulder in or about 9 December 2019, Comcare has no liability to pay her compensation pursuant to the claim she made on 17 December 2019.
Decision
The decision under review is affirmed.

I certify that the preceding 62 (sixty-two) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.

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Associate
Dated: 15 February 2022
Hearing dates: 08 December 2021
09 December 2021
10 December 2021

Counsel for the Applicant: Mr Jaimie Ronald
Solicitor for the Applicant: Mr Dean Prail
Counsel for the Respondent: Ms Josie Dempster
Solicitor for the Respondent: Ms Laura Hinwood