Corbett and Australian Air Express Pty Ltd (Compensation)

Corbett and Australian Air Express Pty Ltd (Compensation) [2017] AATA 430 (6 April 2017)
Division:GENERAL DIVISION
File Numbers: 2014/4810,
2014/5786

Re:Alan Corbett
APPLICANT

AndAustralian Air Express Pty Ltd
RESPONDENT

DECISION
Tribunal:Regina Perton, Member
Date:6 April 2017
Place:Melbourne

The Tribunal affirms the decisions under review.
[sgd]........................................................................
Regina Perton, Member
COMPENSATION – aggravation of disease – whether liability still exists – whether evidence for fresh diagnosis – decisions affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988 ss 5A, 5B, 14, 16, 19
Cases
Cassaroto & Australian Postal Corporation (1989) 17 ALD 321
REASONS FOR DECISION
Regina Perton, Member
6 April 2017

Alan Corbett worked for Australian Air Express Pty Ltd (AAE) for approximately 23 years from 1990 to 2013. He was made redundant on 11 July 2013.
Mr Corbett was injured at work on 2 October 2001. He was driving a tug and twisted around, felt pain in right hand side of groin. He lodged a claim for compensation on 4 October 2001. On 5 October 2001 AAE’s insurer accepted liability under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) for an injury described as strained muscles of the abductor region for injury occurring on 2 October 2001, although the relevant Certificate of Capacity stated it was the adductor magnus. Mr Corbett was unable to undertake his usual duties due to pain and discomfort as he walked and he was advised by his general practitioner (GP) to avoid prolonged standing, walking or stretching his right leg. It was initially estimated by his GP that Mr Corbett’s injury might take four to six weeks to settle but symptoms continued well beyond that period.
A radiological report dated 19 March 2002 revealed mild bilateral hip osteoarthritis. Mr Corbett’s GP provided reports over the next few months attributing the exacerbation of Mr Corbett’s right hip symptoms to the incident when Mr Corbett got out of the tug. On further examination, a congenital aspect to the arthritis was discovered.
Various medical reports in subsequent years provided conflicting opinions on whether Mr Corbett’s hip condition was related to the aggravation as a result of the incident in October 2001. There were also differing opinions tendered about when or if a hip replacement should be undertaken and whether the operation should be funded by AAE.
Mr Corbett’s treating orthopaedic surgeon, Mr Craig Mills, sought funding for a hip operation in June 2014 and Mr Corbett lodged a claim with AAE along with that request.
On 17 June 2014 AAE determined that there was no present liability in respect of an accepted claim for aggravation of mild constitutional osteoarthritis of right hip, affecting right groin sustained on 2 October 2001. On 18 July 2014 a review officer affirmed the determination. On 16 September 2014 Mr Corbett lodged an application for review with the Tribunal (proceeding 2014/4810).
On 6 November 2014 Mr Corbett lodged a further application with the Tribunal following AAE’s refusal on 21 August 2014 to pay for consultations with his GP which took place after 17 June 2014. Mr Corbett sought reconsideration of the decision and on 6 October 2014 AAE’s insurers affirmed the original decision.
The Tribunal considered both applications together as they both resulted from AAE’s decision to determine that there was no longer liability for the injury that occurred in October 2001.
LEGISLATIVE PROVISIONS
Some relevant provisions of the Act have changed since Mr Corbett’s initial injury in 2001, while others have remained the same. In October 2001 the definition of injury in section 6 of the Act was as follows:
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
aggravation includes acceleration or recurrence
disease means:
(a)any ailment suffered by an employee; or
(b)the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.
injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being 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), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
The Act was amended in 2007 with the current definitions being:
aggravation includes acceleration or recurrence.
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
injury has the meaning given by section 5A.
…
5A injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
5B Definition of disease
(1)In this Act:
disease means
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3)In this Act:
significant degree means a degree that is substantially more than material.
Section 14 of the Act refers to payment for compensation in respect of an injury suffered by an employee if the injury results in incapacity for work or impairment. Section 16 applies to medical treatment for accepted injuries. Section 19 concerns compensation where a person is incapacitated for work due to an injury.
MR CORBETT’S MEDICAL AND EMPLOYMENT HISTORY
Mr Corbett had been working for AAE at Melbourne Airport for around 11 years when he suffered the injury and its aftermath. AAE accepted liability promptly after Mr Corbett suffered an apparent groin strain. Instead of conducting his duties as a tarmac driver at the time of his injury, he was given light duties in AAE’s office. Initially, it appeared he would be working on light duties for a limited period of time rather than almost 12 years following the injury.
Mr Corbett left school after Form 4 at the age of sixteen and then undertook an apprenticeship as an electrical fitter from 1973 to 1977 at the Melbourne City Council. From 1977 he worked in the control room at the Melbourne City Power House turning generators on and off and recording information at the control panel. He then moved into the drawing office where he did technical drawing until about 1985. From then until he finished in 1990 he worked in the operations section inspecting substations and recording relevant information.
Mr Corbett stated that he decided to take up employment with AAE to work nearer to his home. He started working for Australian Airlines Cargo in 1990 which later became AAE. Mr Corbett initially worked as a porter on permanent night shift for about 18 months. That job involved loading and unloading of containers in the cargo shed. He also worked in the mail belt area loading and unloading aircraft containers of mail.
Mr Corbett said that from about 1992 onwards he qualified for various licences so he could work on the tarmac. He worked a lot of overtime once he became a tarmac driver.
Mr Corbett described the physical demands on him in his various roles with AAE. They included repetitive bending, lifting, twisting as well as prolonged standing and walking.
In his statement dated 3 July 2015, Mr Corbett indicated that he had injuries prior to that he suffered on 2 October 2001. He stated that he suffered an injury to his right groin in October 1997. He developed a hernia as a result. He had a short time off, undertook light duties for a short time and resumed full duties some four to six weeks later. Mr Corbett indicated that he hurt his right groin again in November 1998 while he and others were moving a heavy container.
On 3 October 2001 Dr D Lajoie, Mr Corbett’s GP, provided a Certificate of Capacity stating his patient was suffering from pain in his right groin and would be unfit for any work duties for the following week. Dr Lajoie recommended physiotherapy as treatment. He also referred Mr Corbett to Dr Craig Mills, an orthopaedic surgeon, who has remained a treating specialist for Mr Corbett in the years since.
A rehabilitation program was developed in late October 2001 with no driving of tugs or forklifts, no lifting of heavy objects nor extensive standing and walking based on the diagnosis of groin strain. Further Certificates of Capacity were issued by Dr Lajoie over the next few months with work restrictions limiting Mr Corbett’s work to clerical/sitting duties with minimal walking.
A CT scan on 7 March 2002 sought by Dr Lajoie concluded that:
Mild changes of osteoarthritis are demonstrated in both hip joints more so on the right than the left. A small abnormal area of sclerotic bone with the right femoral head may indicate a small region of avascular necrosis.
A further report addressed to Mr Mills following a further radiological examination on 19 March 2002 also indicated that Mr Corbett was suffering from mild bilateral hip osteoarthrosis.
On 2 April 2002 Dr Lajoie provided a report to AAE’s insurers at their request. Asked to respond to a series of questions including whether, on the balance of probabilities (as distinct from possibilities) the condition was due to the incident of 2 October 2001 or other factors, Dr Lajoie stated:
…
2.On the balance of probabilities
a.The incident on the 2/10/2001 was a significant contributing factor for the osteoarthritis in the (R) hip.
b.As Mr Corbett is only 44 years old, it is unlikely he would suffer osteo-arthritis. He has never complained of (R) hip/groin pain before 2/10/2001.
c.The osteo-arthritis in his (R) hip is likely to be due to the heavy line of work that he performs, rather than the normal wear and tear expected in older people. His condition is likely to worsen as he gets older.
…
4.Mr Corbett is currently totally incapacitated. It is hoped that he may be able to return to work in a light duty capacity in the next few weeks.
5.If the incident of 2/10/01 had not occurred, Mr Corbett would not have suffered a total incapacity. His employment contributed materially to his total incapacity.
…
7.Mr Corbett is under the care of Mr. C. Mills at present. Approval for a MRI has been sought to further investigate his hip problem. It is likely that he may need a (R) total hip Replacement in the future (?12 to 24 months). In the meantime, I have recommended weight Loss, NSAIDS and physiotherapy.
Dr Edward Schutz, consultant surgeon, provided a report dated 7 May 2002 at the request of AAE’s insurers. Extracts from his report are as follows:
…
SUMMARY
Mr Alan Corbett is a 44-year-old freight handler and tow driver who reported symptoms in the right groin at work on 2.10.2001. I consider his doctor’s diagnosis of muscle strain of the adductor magnus was incorrect as obvious osteoarthritis of the right hip was likely to have been the cause of his symptoms from the outset. Right (and indeed bilateral) hip osteoarthritis is clearly pre‑existent and is constitutional and in my view has not been caused or contributed to by work. Mr Corbett is fit to work in clerical duties and indeed has returned to work in clerical duties.
The reason for his restriction in work capacity is due to constitutional hip arthritis and is not due to any work accident or to work itself.
…
On 22 May 2002 AAE foreshadowed that it may not provide further compensation in relation to the hip condition giving Mr Corbett the opportunity to comment. On 3 June 2002 Mr Corbett responded stating that the continual lifting, bending and twisting has contributed to my condition. He also enclosed a further response from Dr Lajoie reiterating that the arthritic right hip was caused by Mr Corbett’s employment. Dr Lajoie also stated that his patient …may be able to return to pre injury duties after his operation.
On 14 June 2002 AAE issued a determination ceasing liability to pay compensation for the injury incurred in October 2001. Mr Corbett sought reconsideration of the determination on 19 June 2002. On 2 July 2002 AAE affirmed the earlier decision stating that AAE was not liable to pay compensation in respect of strained muscles of the abductor [sic] magnus region on and from 14 June 2002.
On 22 July 2002 Mr Corbett lodged an application for review with this Tribunal. On 28 August 2003, AAE reconsidered, on its own motion, the determination made on 2 July 2002 and varied the determination:
Australian air Express Pty. is liable to pay compensation to the said Allan Corbett in accordance with Sections 6 and 14 of the Act in respect of “aggravation of mild constitutional osteoarthritis of the right hip affecting the right groin” with a deemed injury date of 2 October 2001.
In his statement of reasons the Senior Claims Officer at AAE’s insurer stated:
…
On 14 April 2003, Orthopaedic Surgeon, Mr Craig Mills penned a medical report assessing Mr Corbett’s condition.
In his report, Mr Mills stated “Specifically, it is my opinion that your client’s employment with Australia air Express over a period of 10 years and also, in addition, the reported incident of 2 October 2001, has represented material contributing factors to the aggravation of the diagnosed condition of primary osteoarthritis”…”I believe that his employment, which involved continual frequent lifting, bending and twisting, has been a substantial and material contributing factor to the progression of his hip osteoarthritis”
He goes on to state “It is my opinion that employment related factors have been a material contributing factor to your client’s ongoing symptoms and reduced capacity for employment”
Mr Jonathan Rush, in his report of 17 April 2003 notes that X-Rays show the osteoarthritis to be mild.
…
Dr Lajoie issued several Certificates of Capacity during 2004 indicating that Mr Corbett suffered from osteoarthritis of the right hip. The description changed to pain both hips with the diagnosis changed to BILATERAL OA BOTH HIPS in Certificates of Capacity issued in late 2005.
On 28 November 2005, Mr Michael Shannon prepared a report for AAE’s insurer. Mr Shannon stated the following :
…
Opinion
Mr Corbett is suffering from osteoarthritis of both hips.
This is essentially primary osteoarthritis with a contribution by a developmental abnormality.
The condition has not been caused by his employment, nor does he describe any significant incident or injury in the course of his employment.
It is certainly consistent that osteoarthritis of the hip would be symptomatic in situations where he is twisting as in getting on and off a tow motor, but this could not be interpreted as a significant injury.
In my opinion, his employment is not a significant contributing factor to his hip condition.
He is quite genuine in his complaints and his hips will progress to the point where he requires bilateral hip replacement.
In my opinion, the employer is not liable for the costs of surgery and the surgery would have been necessary irrespective of employment.
…
3.On the balance of probabilities, the hip conditions are due to pre-existing congenital and constitutional conditions and are the natural progression of that condition. At most there may have been some temporary aggravation by the incidents described, but there was no injury as such.
4.There is no evidence that he is exaggerating his symptoms and his symptoms are entirely consistent.
5.He would be ill advised to go back to his former occupation, because his hips are likely to be symptomatic in that occupation.
…
7.The condition of his hips will not resolve such that he is able to resume his normal duties.
…
9.No specific treatment is required for either hip.
10.The prognosis for both hips is for gradual deterioration and this would occur a little more rapidly on the right side than the left side.
11.The degree of osteoarthritis and the congenital abnormality is slightly greater on the right than the left and indeed the symptoms are greater.
On 15 December 2005 AAE foreshadowed that it was considering a decision to determine that Mr Corbett no longer was entitled to benefits under sections 16 and 19 of the Act. He was given a copy of Mr Shannon’s report and the opportunity to provide comments by mid-January 2006.
On 7 February 2006 AAE wrote to Mr Corbett’s solicitors advising that as no further medical evidence had been received, that a determination had now been made that no further treatment or incapacity was indicated for the compensable condition of aggravation of mild constitutional osteoarthritis of right hip, affecting right groin sustained on 2 October 2001.
On 24 February 2006 Mr Corbett, through his solicitors, lodged a claim for permanent impairment and other documents including a report prepared on 17 April 2003 by Mr Jonathan Rush, addressed to Mr Corbett’s solicitors. Mr Rush’s opinion was:
(a)The patient’s ongoing symptoms in the right hip are due to mild osteoarthritis of the hips more marked on the right side.
(b)This condition of osteoarthritis of the right hip has not been caused by the patient’s employment, but it is reasonable to state that the nature of his work has aggravated the condition. There have been three episodes of a twisting injury at work which has produced severe pain, taking some weeks to settle. It is reasonable to state that the symptoms of the condition have come on earlier than would otherwise be the case due to the specific nature of the patient’s employment.
(c)The patient is fit for light work and in particular clerical duties and this situation will persist for quite some time.
(d)At the moment the prognosis is uncertain. There will almost certainly be gradual deterioration in the degenerative condition in the right hip. How quickly that deterioration occurs remains to be seen, but at the moment there is no question of any surgical intervention such as a total hip replacement. It may well become indicated however within the next five to ten years. At this stage, apart from general supportive treatment, no other specific treatment is indicated.
(e)the condition has not stabilised and I anticipate that gradually there will be deterioration in the present situation to the extent that the patient may require a total hip joint replacement.
At the current stage however I would assess the patient’s impairment as 10% whole person impairment….

On 22 February 2006 Mr Corbett’s solicitors sought reconsideration of the decision dated 7 February 2006 to cease liability for medical treatment and incapacity.
On 17 March 2006 AAE refused the claim for permanent impairment. The delegate pointed out that Mr Shannon’s report was current whereas that of Mr Rush was more dated.
On 12 May 2006 the reconsideration delegate affirmed the decision made on 7 February 2006 that AAE was no longer liable for medical and incapacity costs.
On 7 June 2006 an application for review was lodged with this Tribunal in relation to the decision made on 12 May 2006.
A Certificate of Capacity prepared by Dr Lajoie on 18 July 2006 stated that Mr Corbett was suffering from BILATERAL OA BOTH HIPS resulting in pain both hips and should undertake CLERICAL DUTIES only for the following four weeks.
On 10 October 2006 Mr Corbett’s solicitors sought reconsideration out of time for the decision made on 17 March 2006 to refuse the claim for permanent impairment.
On 29 November 2006 Mr Rush prepared a report at the request of Mr Corbett’s solicitors. Mr Rush had re-examined Mr Corbett on 24 November 2006. He stated that:
…
Over the past three years that patient states that there has been some gradual deterioration in the situation. He feels that the problems with his right hip are now to the level where serious consideration should be given to having a total hip joint replacement and he is considering approaching the orthopaedic surgeon, Mr Mills, again for further review in this regard.
Over the past three years the only treatment the patient has had has been some anti-inflammatory agents. He has not had any physiotherapy.
Over the three years the patient has remained on light clerical duties and he has not had any episodes or work that has further aggravated his hip problem to any significant extent. He thinks he may have had one episode over the three years of a flare-up of pain requiring him to be off work for a few days.
…
Mr Rush maintained his view that Mr Corbett had a whole person impairment of 10%. He also stated that he was still of the view that the osteoarthritis was not caused by Mr Corbett’s work.
As stated in my report three years ago, the osteoarthritis in the right hip has not been caused by his employment but I believe his work over 16 years as a tarmac tranship driver has aggravated the condition accelerating the degenerative process. Since October 2001 the patient has had fairly persistent symptoms despite ongoing light duties.
On 26 February 2007 AAE’s reconsideration delegate affirmed the decision that it was not presently liable to pay a lump sum for permanent impairment. Mr Corbett, through his solicitors, lodged an application with the Tribunal in relation to that refusal on 19 March 2007.
On 8 November 2007, at a conciliation conference, the parties agreed that the decision to refuse a permanent impairment claim be affirmed. The parties also agreed to set aside the decision made on 12 May 2006 concerning ongoing liability under sections 16 and 19 of the Act in relation to the injury of aggravation of mild constitutional osteoarthritis of the right hip and to substitute a decision that AAE remained liable from 7 February 1996 and at the date of the Tribunal decision which accepted the conciliation outcome.
Further Certificates of Capacity continued to be issued by Dr Lajoie over the next few months specifying clerical duties because of osteoarthritis of the right hip.
On 7 February 2008 an occupational therapist prepared a report on rehabilitation and the return to work process after interviewing Mr Corbett, his manager and others. One of the issues that arose was that despite working full hours, there appeared to be insufficient work for those full hours. The occupational therapist noted that Mr Corbett was unable to return to his pre-injury duties. The outcome was that Mr Corbett’s manager would see whether there were other duties that could be added to fully occupy Mr Corbett.
On 5 April 2008 a trainee occupational physician, Dr Andrea James, provided a report to AAE’s injury management adviser at AAE’s request. Dr James had examined Mr Corbett on 17 March 2008 to assess his ability to undertake a rehabilitation program. She had a number of medical reports and x-rays before her. Dr James’s assessment and recommendations included the following:
Mr Corbett is a 50 year old man with bilateral osteoarthritis of his hips which is permanent. This condition was diagnosed in 2001 following investigations and specialist assessment for right groin pain. Mr Corbett’s treatment of simple analgesics and NSAIDs when necessary is appropriate and reasonable given his medical condition and current level of symptoms. He will eventually need bilateral hip replacements the timing of which will be largely dependent on symptom severity. He has been advised to delay surgery for as long as possible to avoid multiple revisions of surgery.
Mr Corbett was also advised by treating specialists to lose weight, cease smoking and reduce his alcohol intake. He has been able to achieve the latter two, however he reports his weight has increased since quitting smoking.
There has been a gradual decline in his condition with more pain more frequently in the right hip and compared to earlier reported examination findings his range of hip movements has reduced bilaterally.
…
In my opinion he will not be able to return to the pre-injury duties of an operations tarmac driver which is a physically demanding position and likely to increase his hip pain. It is also unlikely that Mr Corbett will be able to perform physically demanding work after a hip replacement due to the potential for physical stressors to disrupt the new joint.
…
Mr Corbett has been able to work a full 8 hour day on modified duties and he should be able to continue with full time work in suitable duties unless his hip symptoms increase.
Mr Corbett could participate in shift work and undertake any of the shifts available at AeE. Shift work including night shift is unlikely to exacerbate, accelerate or aggravate his hip osteoarthritis however he may experience more pain and stiffness in colder night temperatures and this should be considered when ever possible
…
I understand that at the new purpose built freight handling shed, processes will be mechanised with less manual handling required. I recommend that if appropriate, a worksite visit to review suitable duties on this site be considered before a return to work plan is developed.
Following a work site visit to AAE’s new freight facility (Sharps Road) on 15 September 2008, Dr James provided a further report in which she indicated that Mr Corbett had coped well with the new duties at Sharps Road apart from satchel induction which required standing at a conveyer belt and moving parcels weighing less than 5 kilograms on the belt. This satchel induction was causing Mr Corbett some pain so the time for this one of four rotated duties was reduced. It was recommended that Mr Corbett be rotated through various tasks and be provided with regular opportunities to sit, move and walk and be restricted from undertaking tasks which require heavy manual handling and prolonged static postures. Dr James suggested he was able to do shift work.
From late 2008 to late 2013, Dr Lajoie issued Certificates of Capacity which described the diagnosis as Osteoarthritis R hip with pain R hip as the result. The work restrictions were:
AS PER RTW PLAN
clerical duties; 8 hrs per day
no night shift
On 11 July 2013 AAE confirmed oral advice that Mr Corbett’s position had become redundant as a result of the integration of Qantas Freight and AAE. On 14 August 2013 a vocational assessment was undertaken to determine suitable employment options within the local labour market taking into account Mr Corbett’s right hip injury. The rehabilitation counsellor undertaking the assessment suggested that [t]here are currently no realistic employment options for Mr Corbett in the open labour market.
On 12 November 2013, Dr L Wijetunga, consultant orthopaedic surgeon, provided a report to AAE’s insurers at their request. Dr Wijetunga’s summary, assessment and opinion included the following:
A 56 year old, overweight male patient sustains a low impact twisting injury at work and experiences right groin pain.
On consultation with his general practitioner a few days later he was told he had tendonitis. However his pain progressed and he was finally referred to an orthopaedic surgeon who diagnosed osteoarthritis of the right hip.
He went back to restricted duties but he was retrenched in July this year.
…
Mr Corbett suffers from mild-moderate osteoarthritis of the right hip. Osteoarthritis can be the end result of a number of conditions affecting the hip. It is due to changes and decrease in the cartilage lining the articular surfaces of the hip. It can be gradually progressive.
Common symptoms are pain and stiffness. The diagnostic sign is the reduction in the range of movement of the hip.
When asked what, on the balance of probabilities, caused the condition currently suffered by Mr Corbett, Dr Wijetunga responded:
2.
...
(d) An aggravation, acceleration or recurrence of a pre-existing condition.
He has had pre-existing osteoarthritis of his hip. In twisting his hip he moved it beyond the painless range of movement. This caused pain in his groin. The pre‑existing osteoarthritis has been caused by the fact that he is overweight and probably his activity.
3. Do you consider that employment by Australian air Express continues to contribute to a significant degree to the aggravation of the pre-existing osteoarthritis of the right hip? Please explain the basis for your opinion.
I consider that employment by Australian air Express does not contribute to a significant degree to the aggravation of the pre-existing osteoarthritis of the right hip. The fact that he is overweight, and has had some congenital abnormality that has caused a pre-existing osteoarthritis of both hips, right worse than left.
…
5. Does Mr Corbett have a capacity for employment of any kind?...
At the time he was retrenched he was performing restricted duties. He said he was doing office work. He still wants to do this type of work as he considers he has at least nine years more to retire. He should have no problem going back to restricted duties. He should be able to do this full time.
…
7. What treatment program is recommended….
Pain relief in the form of panadol osteo and anti-inflammatory medication used with caution would suffice for the moment. Hydrotherapy may help in maintaining his level of fitness and his range of movement of the right hip
…
It is not likely that surgery will be required. Surgery may be required in the future if the pain from the osteoarthritis progresses to the stage it is constant, severe and unrelieved by any other means.
In my opinion in the event that surgical treatment is required it is due to a natural progression of the degenerative process.
The work-related aggravation was mild and would have ceased now.
Dr Lajoie issued further Certificates of Capacity lasting approximately three months on 16 January 2014 and 10 April 2014 in which he described the work restrictions as:
clerical duties; 8 hrs per day
no night shift
no heavy manual work.
AAE’s insurers wrote to Dr Lajoie on 1 April 2014 requesting an updated copy of his clinical notes which Dr Lajoie provided as from 24 October 2001 to 10 April 2014.
On 20 May 2014 AAE’s insurers wrote to Mr Corbett with the preliminary view that he was no longer entitled to workers’ compensation benefits. He was given the opportunity to comment.
On 2 June 2014 Mr Corbett responded to the letter of 20 May 2014 stating:
…
…since sustaining my injury in 2001 Australian air Express have accepted my claim and paid compensation accordingly as have three insurance companies engaged by Australian air Express.
I find it difficult to comprehend that all along my injury has been work related and now all of a sudden you believe it has nothing to do with work.
…
My injury has deteriorated over the years but due to good injury management programs implemented by Australian air Express and myself I consider that it has deteriorated at a steady pace instead of an accelerated pace, which would have been the case if I had not undertaken light duties.
…
On 2 June 2014 Mr Craig Mills prepared a request addressed to AAE’s insurers seeking their approval for a right total hip replacement as a result of a work related injury.
Mr Corbett had been referred for a further vocational assessment on 21 May 2014. In a report dated 4 June 2014, Ms Natassha Meschemberg, physiotherapist at IPAR Rehabilitation, made the following assessment:
IPAR recommends that Mr Corbett is a suitable candidate for Job Seeking Assistance. He appeared to be motivated to return to work to suitable employment and expressed an interest to pursue the employment options listed in the body of this report.
Based upon Mr Corbett’s education, skills, training, transferable skills, work history and labour market analysis, IPAR is of the opinion that Mr Corbett has the potential to gain appropriate employment….
On 17 June 2014, AAE determined that Mr Corbett had ceased to suffer the effects of the compensable injury sustained on 2 October 2001. AAE determined that there was no present entitlement to pay compensation for medical treatment and/or incapacity.
On 16 July 2014 Mr Corbett’s solicitors lodged a request for reconsideration of the decision of 17 June 2014. On 18 July 2014, AAE affirmed the reviewable decision.
On 21 August 2014 AAE refused Mr Corbett’s claim for reimbursement of a consultation with Dr Lajoie on 12 August 2014. This eventually resulted in the second current application before the Tribunal.
On 11 February 2015 Mr Mills prepared a report addressed to Mr Corbett’s solicitors. Copies of his earlier reports prepared in 2002 and 2003 were also provided.
In a report dated 12 December 2002 addressed to Mr Corbett’s solicitors, Mr Mills stated:
…
In my opinion he has a congenital problem which has led to a problem of primary osteoarthritis of the hips which has been substantially aggravated at work. In this context I find that his work has constituted a material contributing factor to the onset and aggravation of the diagnosed injury/condition of primary osteoarthrosis of the hips.
In a supplementary report dated 14 April 2003, Mr Mills stated:
Specifically, it is my opinion that your client’s employment with Australia Air Express over a period of ten years and also, in addition, the reported incident of 2 October 2001, has represented material contributing factors to the aggravation and acceleration of the diagnosed condition of primary osteoarthritis of the hips.
I believe that his employment, which involved continual frequent lifting, bending, and twisting, has been a substantial and material contributing factor to the progression of his hip osteoarthritis.
It is likely in Mr Corbett’s case, given his relative youth, that with a sedentary occupation he may have required total hip replacement as early as 55 or 60 years of age and, in this context, it is my opinion that the work aggravation and incident has resulted in surgery being required some 5-15 years earlier than would otherwise be the case.
In his report dated 11 February 2015, Mr Mills stated he had last seen Mr Corbett on 2 June 2014 on referral by Dr Lajoie. He provided a history of the case and summarised the observations and diagnoses he had made in 2002 as well as the reports of other specialists over the years. Mr Mills maintained the view that Mr Corbett’s work had been the significant contributing factor to the aggravation and acceleration of underlying pre‑existing disease. He believed the hip replacement would result in Mr Corbett being able to resume employment with light duties. Mr Mills also provided articles from 1992 and 2005 that described surveys of occupations and the relationship to early onset of osteoarthritis. Heavy labour such as farming was associated with early onset in those articles. Mr Mills also stated that Mr Corbett probably had a labral tear at the time of his injury.
On 9 March 2015 Associate Professor Bruce Love provided a report to AAE’s solicitors. Upon examining Mr Corbett, he concluded that:
In view of the history of pain, which now goes back almost 13 and a half years, it is surprising that the early diagnosis of osteoarthritis of the hip has not resulted in much more severe changes at this time with more significant loss of joint space and marginal osteophyte formation and sclerosis.
I am forced to the conclusion that the condition is more probably related to dysplasia with a degree of femoroacetabular impingement and possible labral pathology.
I have formed the opinion that the condition is constitutional in nature and has been rendered symptomatic by the incident of October 2001. Future treatment may include total hip replacement. Had this man been seen in the period shortly after his injury in 2001, the current enthusiasm for arthroscopic surgery of the hip amongst orthopaedic surgeons may have led to him having such a procedure at that time. At his age now it is probable that an arthroscopic procedure would not offer benefit.
…
In conclusion, I am of the belief that this man has a constitutional condition of his right hip which was rendered symptomatic in October 2001 and the symptoms have continued.
…
Mr M. A. Khan, orthopaedic surgeon, provided a report dated 23 April 2015 at the request of Mr Corbett’s solicitors. Mr Khan examined Mr Corbett on 10 March 2015. He provided a history of the various examinations and opinions given about Mr Corbett’s condition. His diagnosis was:
I consider he certainly aggravated and accelerated a pre-existing problem and sustained an associated injury to the articular lining of the joint and internal injury to the hip joint with possible labral lesion. He has accelerated the process of degenerative arthritis at a rapid rate.
Mr Corbett still has mild symptoms developing in the left hip which have not caused him any symptoms and he has a reasonably good range of movement of the left hip joint.
The results of his recent X-rays show early changes of degenerative arthritis in the right hip and a diagnosis of FAI (femoroacetabular impingement).
…
I consider that Mr Corbett continues to suffer from the condition which arose in the course of his employment with Australian Air Express.
…
On 18 May 2015 Associate Professor Love provided a supplementary report to AAE’s solicitors responding to specific questions. When asked to explain the usual clinical course for the condition he identified, Associate Professor Love stated:
It would generally be accepted that constitutional hip dysplasia with femoroacetabular impingement will ultimately lead to loss of articular cartilage at sufficient degree to produce disabling symptoms and therefore raise the possibility of hip joint replacement surgery.
Associate Professor Love was asked to respond to a question asking to what degree he considered that Mr Corbett’s injury was due to various factors. He stated:
As he has been involved in administrative/office based duties for 12 years without preforming tarmac driving duties, I conclude that his employment since ceasing work on the tarmac and moving into office duties has not contributed in any way to his current condition.
I conclude that the workplace incident of 02 October 2001 induced symptoms in his hip, but I would now estimate that sufficient time has passed to suggest that the workplace contribution to his current condition is only 20% as an approximation.
The pre-existing and congenital underlying condition is responsible for 80% as an approximation of his current condition.
The majority of the condition is therefore the natural progression of the underlying constitutional condition. I am not aware of any other work or non-work related factors.

Dr Lajoie prepared a report dated 15 October 2015 addressed to Mr Corbett’s solicitors. Dr Lajoie stated that his patient has had ongoing problems since he injured his right hip in 2001 and his symptoms have remained unchanged since his accident.
On 14 November 2015 IPAR rehabilitation services closed the program it had been conducting with Mr Corbett since 21 May 2014.
Dr Anthony Kam, consultant radiologist, provided a report to AAE’s solicitors on 19 January 2016. His comments included:
…
I am not able to say from the radiology reports whether the applicants current right hip and groin condition continues to relate to the aggravation incident on 2 October 2001 or whether the effects of the aggravation have now been overtaken by the underlying right hip degenerative osteoarthritis. It is not possible to determine from the radiology the cause of the applicant’s symptoms or if the applicant is at all symptomatic. Information available suggests there is little change in appearance of the bilateral hip joint arthritis over time. There is no information to indicate the applicant continues to have adductor tendinitis, although the adductor tendons have not been specifically evaluated on ultrasound in 2013/2015.
During the hearing, Mr Corbett’s evidence was consistent with that in his statement. He said that he was advised to hold off on an operation to his right hip for as long as possible.
Mr Corbett said that he had been attending appointments every second Wednesday with IPAR where the consultant stated that he had applied for jobs on Mr Corbett’s behalf but never told him what they were. Mr Corbett said that there had not been any discussion about re-training. He had not independently applied for other jobs.
Mr Corbett said that he had been participating in sport, namely cricket and football in his younger days and later played golf. However he was forced to give up all sport. He said that he used to be able to walk about two kilometres but now it was sometimes only 50 metres before he stopped. It varied from day to day.
Mr Corbett said that he did not want to stop work when he was made redundant. He said it appeared that Qantas which took over AAE’s operation, did not want injured workers to transfer to the airport nor did Australia Post want him to work in its facility.
Dr Lajoie, in his oral evidence, maintained his view that Mr Corbett’s symptoms in relation to his right hip were still linked to the October 2001 incident.
Mr Mills, in his oral evidence, maintained that Mr Corbett’s current condition was still the result of the October 2001 incident. Asked about whether hip dysplasia would result in symptoms, Mr Mills said that 50 per cent of people with that condition do not get osteoarthritis. Mr Mills stated it was his belief that Mr Corbett had a labral tear at the time of the October 2001 incident.
Under cross examination, Mr Mills said he did not have clinical notes from his examination of Mr Corbett in December 2002. He was asked why he now had a view that there had been a labral tear when there was no reference to that in his December 2002 report. Mr Mills said that the techniques and technology that were now available were not around to the same degree in the early 2000s. Posed with the question that if there was a labral tear, it could have been before, on or after 2 October 2001, Mr Mills said it was possible but not likely that there was a tear after October 2001.
When asked to comment on Dr Kam’s report in which he stated that there was little change from 2001 to 2013 in radiological reports, Mr Mills agreed. However, what had changed was the degree of pain as well as bone density, loss of cartilage and a reduced range of movement.
Associate Professor Love maintained the view in oral evidence that he had given in his reports. When asked about the use of arthroscopy of the hips in 2001, Associate Professor Love said that there had been some interest in it at the time but it was only in recent years that its use had increased. Current evidence indicates that it is a helpful technique in younger persons. He said that it was his view that the patient needs to decide whether and when to have a hip replacement.
Under cross-examination, Associate Professor Love gave the opinion that the surgery now recommended and sought by Mr Corbett was because of the constitutional degeneration of his hip joint. He said that patients have different tolerances of pain so one could not definitively say when a patient should have a hip operation. Associate Professor Love conceded that there was probably a contribution to the hip condition as a result of the October 2001 incident. He said that as the years have gone by, the contribution from the workplace injury has diminished. He conceded that the 20% estimate he had given had no scientific basis but was based on the symptoms over time. He also conceded that there may still be a contribution to the current condition due to the work undertaken prior to and at the time of the October 2001 injury. Associate Professor Love said that there may have been a labral tear as put forward by Mr Mills and that may have contributed to the pain felt by Mr Corbett.
Upon re-examination, Associate Professor Love said that he did not think that the October 2001 incident made a major contribution to the pathology but it had resulted in the symptoms being experienced.
During the hearing. Mr Wijetunga gave oral evidence. He said that what was described in Dr Kam’s report were changes of mild osteoarthritis which had not changed very much since 2001. Mr Wijetunga said that Mr Mills may well be right about the labral tear but there was no evidence to back up his speculation. He said it was not possible more than a decade later to confidently say, on the balance of probabilities, that there was a tear in 2001.
Mr Wijetunga said that he could not diagnose a labral tear without an MRI. He said that it is almost impossible to do so notwithstanding Dr Mills’s view which was based on analysis of a possible scenario more than a decade earlier.
SUBMISSIONS AND CONSIDERATION
Mr Mark Carey, counsel for Mr Corbett, submitted that there was no dispute that Mr Corbett sustained an injury in October 2001 to which his employment made a material contribution. He submitted that there is evidence to suggest that the condition arose due to an injury (other than a disease), namely a labral tear. He cited the report prepared by Mr Mills dated 11 February 2015 in which Mr Mills stated that in his opinion, Mr Corbett probably had a labral tear at time of the October 2001 injury. Mr Carey submitted that Associate Professor Love’s report dated 9 March 2015 supported that possibility by stating that there had been possible labral pathology. He also cited comments in Mr Khan’s report dated 23 April 2015 in which Mr Khan stated that a diagnosis of labral tear … could not be ruled out. The Tribunal notes that when they wrote their reports, Associate Professor Love and Mr Khan had before them Mr Mills’s report dated 11 February 2015 in which he discussed the possibility of a labral tear for the first time.
Mr Carey noted Mr Wijetunge’s comment that he could not diagnose a labral tear without an MRI which Mr Mills had said was the least effective tool to do so. Mr Carey submitted that the labral tear was never fixed. He also pointed to evidence that a labral tear does not heal itself. He repeated the evidence from a number of the specialists that in October 2001, it was not as common or as easy to look at the labral tear as arthroscopic surgery was not undertaken to the extent it is now. Mr Carey also provided a commentary on the various medical reports.
Both counsel brought the Tribunal’s attention to the matter of Cassaroto v Australian Postal Corporation (1989) 17 ALD 321 which dealt with aggravation and acceleration of pre-existing conditions under previous workers compensation legislation. At 327, Hill J stated, after reviewing earlier judgements involving such issues:
…the ordinary English meaning of the words “aggravation and acceleration”, namely that “aggravation” connotes the disease becoming more severe and acceleration connotes the hastening of the normal underlying disease, which if not invariably, will usually in any event be a progressive one. However, in the ordinary usage of the words it is clear that the two words are not mutually exclusive so that the consequence of hastening the development of an underlying progressive disease may be to increase or make worse the severity of the disease.
One may be excused for asking why, in a case where the tribunal found one of the two factors, namely aggravation, it matters whether the tribunal considered and found there to be present or absent acceleration. The answer, however, is said to be found in the ultimate period of incapacity….
…
At 331, Hill J states:
…one can imagine cases of acceleration of a pre-existing progressive disease where the course of the disease itself is such that the consequences of acceleration cease to matter after a time and contribute not at all to a greater incapacity than would have arisen as a result of the normal progression of the disease. In other circumstances the acceleration results immediately in total incapacity and the mere fact that at some stage total incapacity would have arisen is not a reason for discontinuing compensation.
It would be necessary in each case, be it one of aggravation or acceleration, to have regard to the medical evidence in determining whether the compensable period will be finite or whether it should be taken to continue.
A number of other cases involving aggravation and/or acceleration were also cited including those discussed within the Cassaroto decision and others. As was put forward by Hill J, the Tribunal notes that each of those cases needs to be considered in light of their specific facts and medical assessments.
Mr Wallace, counsel for AAE, submitted that there is insufficient evidence to point to a labral tear occurring in October 2001. He pointed out that it took Mr Mills over 12 years to state that there was probably a labral tear in October 2001. He submitted that Mr Mills did not have his notes from that time. Mr Wallace presented his analysis of the medical evidence before the Tribunal which differed in emphasis from that of Mr Carey. He submitted that on the available evidence, the Tribunal is dealing with an aggravation and acceleration of a disease not an injury simpliciter, namely a labral tear as has been now suggested by Mr Mills. Mr Wallace agreed that the evidence now indicated that a hip operation could be of benefit to Mr Corbett but stressed that the incident of October 2001 no longer plays a part in relation to Mr Corbett’s current incapacity.
It is obviously difficult to decide when a disease, the symptoms of which were aggravated by a work incident, is no longer attributable to that incident. In this case, the decision needs to be made as to whether, almost 13 years after the workplace incident, the disease and its symptoms were still materially and/or significantly the result of that incident.
There have been numerous diagnoses, since March 2002, indicating that Mr Corbett suffers from osteoarthritis of the hips, with the right hip being worse than the left. The Tribunal finds that Mr Corbett suffers from that condition, namely a disease, which is not disputed by the parties.
Almost 13 years since he first reported on Mr Corbett’s hip condition, Mr Mills made a fresh diagnosis that Mr Corbett suffered a tear of the labrum in October 2001. Mr Mills did not have a copy of the notes he took when he examined Mr Corbett not long after the injury. Associate Professor Love and Mr Khan, who examined Mr Corbett after receiving a copy of Mr Mills’s report of February 2015, agreed that it was possible that Mr Corbett suffered a labral tear. However, they did not say that it was on the balance of probabilities. Mr Mills also referred to the possibility of a labral tear being suffered in October 2001 rather than the probability. As was pointed out by Mr Wallace, even if there was a labral tear detected in recent years, this does not mean that it occurred in October 2001. It may have been before, on or after October 2001. Whilst modern techniques may have led to a greater certainty of diagnosis, there is no firm evidence that Mr Corbett suffered a labral tear as a result of the October 2001 incident. The Tribunal is not satisfied that Mr Corbett suffered a labral tear, which has not healed, in October 2001.
AAE have not disputed that the October 2001 incident aggravated and/or accelerated the symptoms of the underlying osteoarthritis of the hips. However, over the years, AAE has commissioned specialist reports which cast doubt on whether the symptoms were still attributable to the October 2001 incident. In May 2002 Dr Schutz determined that the hip osteoarthritis, being pre-existent and constitutional, was not caused by, or contributed to, by work. In June 2002 AAE determined to cease liability for the arthritic hip but after Mr Mills applied to the Tribunal and Mr Mills prepared a report, AAE of its own motion, in August 2003, determined that it was still liable to pay compensation to Mr Corbett.
AAE commissioned a further report in November 2005 from Mr Shannon. Mr Shannon was of the opinion that employment was not a significant factor in Mr Corbett’s osteoarthritic hip condition. He was of the view that there may have been a temporary aggravation in October 2001 but that the hip symptoms, as at late 2005, were due to pre‑existing congenital and constitutional conditions. AAE determined that it was no longer liable to pay for treatment or incapacity. After Mr Corbett lodged a claim for permanent impairment which was refused and applied to the Tribunal, the parties attended a conciliation in November 2007 at which it was agreed to affirm the decision concerning permanent impairment but to continue to pay compensation for aggravation of mild constitutional osteoarthritis of the right hip. In November 2007 Mr Corbett was working full-time on office duties and had been doing so for more than five years.
By late 2008, it was clear that Mr Corbett would not return to tarmac duties and should remain on light duties which he did until he was made redundant in July 2013. As has been set out earlier, in June 2014, based on the reports of Dr Wijetunga and Associate Professor Love, AAE determined that it would cease liability for Mr Corbett’s condition because it was no longer persuaded that his osteoarthritis was partly contributed to by a workplace incident almost 13 years later. The various reports and evidence given since June 2014 have been provided earlier in these Reasons for Decision.
Dr Lajoie has been Mr Corbett’s GP since before October 2001 and Mr Mills was the orthopaedic surgeon to whom Dr Lajoie provided a referral soon after the October 2001 incident. Dr Lajoie has written numerous Certificates of Capacity for Mr Corbett concerning his hips seeing his patient regularly to issue those certificates. However, his medical notes over the years reveal few suggestions for symptom relief for Mr Corbett. Mr Mills did not see Mr Corbett for over a decade after which he came up with a possible different outcome from the October 2001 incident. Both of them, along with Mr Khan, have maintained that there is still a connection between Mr Corbett’s osteoarthritic condition and symptoms to events of October 2001.
Mr Corbett has not worked in a job that had the physical demands of his tarmac work for more than 15 years. In June 2014 when AAE decided to cease liability, Mr Corbett was at the age where predictions made by Mr Mills and others were he might need a hip operation had there not been an aggravation in October 2001. Mr Corbett was able to postpone an operation suggested in 2002/3 for more than a decade primarily by a change of work duties and avoiding certain activities such as sport or gardening.
All of the medical practitioners have referred to congenital and constitutional links to Mr Corbett’s osteoarthritis. The evidence indicates that Mr Corbett would be likely to have reached his current stage of the condition by his mid to late fifties regardless of whether there had been an aggravation in October 2001. The Tribunal prefers the opinions of Mr Schutz, Mr Shannon, Dr Wijetunga and Associate Professor Love over those of Mr Mills, Dr Lajoie and Mr Khan in this matter. Having considered their evidence and linking the lack of ongoing triggers for acceleration of the disease over the last decade and a half, the Tribunal is persuaded that Mr Corbett would have been in his existing state by now (and mid 2014) whether the October 2001 incident had occurred or not.
The Tribunal is not satisfied that Mr Corbett’s osteoarthritis of the hips is still materially or substantially linked to the accepted injury of October 2001. Therefore he is no longer entitled to compensation pursuant to sections 16 and 19 of the Act.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 100 (one hundred) paragraphs are a true copy of the reasons for the decision herein of Regina Perton, Member

[sgd]........................................................................
Associate
Dated: 6 April 2017

Dates of hearing: 1 - 4 February 2016

Counsel for the Applicant: Mr Mark Carey

Advocate for the Applicant: Ms Jacinta Lewin

Solicitors for the Applicant: Maurice Blackburn Lawyers

Counsel for the Respondent: Mr John Wallace

Advocate for the Respondent: Mr Paul Mentor

Solicitors for the Respondent: Clarke Legal

[2017] AATA 430

6 April 2017

Key Legal Topics

Areas of Law

Employment Law

Statutory Interpretation

Legal Concepts

Causation

Remedies

Statutory Construction

Dates of hearing:	1 - 4 February 2016
Counsel for the Applicant:	Mr Mark Carey
Advocate for the Applicant:	Ms Jacinta Lewin
Solicitors for the Applicant:	Maurice Blackburn Lawyers
Counsel for the Respondent:	Mr John Wallace
Advocate for the Respondent:	Mr Paul Mentor
Solicitors for the Respondent:	Clarke Legal