Davis and Comcare (Compensation)

[2017] AATA 93

Davis and Comcare (Compensation) [2017] AATA 93 (27 January 2017)

Division:GENERAL DIVISION

File Number(s):      2014/4683, 2015/5257

Re:Kathryn Davis

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Deputy President Gary Humphries

Date:27 January 2017

Place:Canberra

In matter 2014/4683, the Tribunal sets aside the reviewable decision of 31 July 2014 and finds instead that Comcare is liable under s 14 for the Applicant’s condition of aggravation of right knee anterior cruciate ligament disruption with complex tear of the medial meniscus, together with osteoarthritis of the right knee.

In matter 2015/5257, the Tribunal makes no decision.

.....................[sgd]...................................................

Deputy President Gary Humphries

Catchwords

WORKERS COMPENSATION – claim for multiple injuries – whether aggravation of previous injury – whether sudden or identifiable physiological change – where competing medical hypotheses for injury – reviewable decision set aside and s 14 liability decided in place

JURISDICTION – where reviewable decision made outside decision maker’s power – failure of decision maker to follow steps of relevant Act – where neither decision maker genuinely considered question of aggravation of injury – where issue within infected claim better dealt with in alternate claim.

Legislation

Safety, Rehabilitation and Compensation Act 1988

Cases

Abrahams vComcare (2006) 93 ALD 147
Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167
Comcare v Muir [2016] FCA 346
Hospital Benefit Fund (WA) Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286

Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213

REASONS FOR DECISION

Deputy President Gary Humphries

27 January 2017

1. Kathryn Davis was a Commonwealth employee when, in the course of her duties, she suffered two falls – one in 2006 and the other in 2013. Both gave rise to injuries, and she made compensation claims against the Commonwealth in respect of each.

2. The circumstances of Ms Davis’s (the applicant in these proceedings) unfortunate accidents were not in serious dispute before the Tribunal, but the nature and extent of the injuries they lead to certainly were. The scope of the claims for compensation she made was also a matter in dispute before the Tribunal. In fact, the Tribunal finds that confusion between the parties as to the scope of the second of her claims, 2015/5257, is such that  Comcare has not validly made a decision pursuant to the Safety, Rehabilitation and Compensation Act 1988 (the Act) in respect of the claim. However, the Tribunal does have jurisdiction to consider her first claim, 2014/4683, and finds in respect of that claim that she is entitled to compensation pursuant to s 14 of the Act.

   Relevant facts

3. Ms Davis has been employed at all relevant times by the Department of Human Services and its earlier incarnations.

4. From about August 2004 to February 2006 she consulted her GP, Dr Tang, regarding right knee pain and elevated urate levels.

5. On 7 February 2006 she was walking from her workplace to her car when she tripped on uneven ground and fell (the 2006 fall). She was subsequently diagnosed with a right knee abrasion and left ankle sprain by Dr Tang. Her claim for compensation under the Act for these injuries was accepted by Comcare on 2 March 2006. She underwent physiotherapy and had diagnostic imaging during 2006, and in June 2007 consulted Dr Lo, who noted tender medial joint? collateral ligt/?meniscus injury. She consulted other doctors and a physiotherapist during 2008 and 2009 in relation to her knee and ankle conditions.

6. In May 2008 Ms Davis made a further claim for compensation in relation to contusion – foot (right) and chondromalacia of patella (right). Comcare rejected liability for this claim in October 2008.

7. On 3 October 2013 Ms Davis had a further fall while walking to her workplace (the 2013 fall). Dr Tang diagnosed sore right knee; tender right knee lateral joint line. An MRI of her knee on 29 October 2013 led to the notation:

   Chronic ACL [anterior cruciate ligament] rupture confirmed. Moderate lateral compartment and marked medial compartment wear with a chronic complex tear of the medial meniscus. No lateral meniscus tear. Small chondral fissure noted at median patellar ridge.

8. On 2 or 12 December 2013 (the date is unclear) Ms Davis made a claim for compensation for the 2013 fall, claiming injuries to her right knee and right wrist. The claim referred to right knee ACL disruption with complex tear of the medial meniscus being an aggravation of the right knee pain and hurt right ankle. On 21 February 2014 Comcare denied liability for this claim on the basis that it was not a new injury, and that the symptoms were attributable to the 2006 fall.

9. On 17 April 2014, Ms Davis wrote to Comcare requesting that her previous, accepted claim in relation to the 2006 fall be reopened/reviewed in light of my current injury. On 20 August 2014 Comcare responded, saying that liability was not accepted for an injury to your right knee [in relation to the 2006 fall] and denying liability for an injury under s 14 or for payments for medical treatment under s 16 of the Act.

10. Two decisions of Comcare were affirmed on reconsideration, and now come before the Tribunal for review:

    ·the decision of 31 July 2014, affirming the decision of 21 February 2014 to deny liability under s 14 for the 2013 fall (matter 2014/4683); and

    ·the decision of 11 November 2014, affirming the decision of 20 August 2014 to deny liability under ss 14 and 16 for the 2006 fall (matter 2015/5257).

    The validity of Comcare's decision in 2015/5257

11. Ms Davis’s more recent claim in relation to the 2006 fall, which comes before the Tribunal in matter 2015/5257, has taken an unusual course, which has led in turn to some mischaracterisation of the nature of that claim on the part of the decision makers who dealt with it. The outcome of this is that, in the Tribunal’s opinion, Comcare’s purported decision falls outside the terms of the Act. The reasons are set out below.

12. The scheme of the Act envisages three distinct stages in the progression of a claim for workers compensation before the Tribunal is conferred with the power to undertake merits review in relation to that claim. The first is the submission of a claim for compensation in a form approved by Comcare (s 54(2)). The second is a determination of that claim by a determining authority (s 61(1A)). The third stage is reconsideration of the determination made under the second stage, either at the initiative of (usually) the applicant or of the determining authority on its own motion (s 62). Section 64 provides for the review of a reviewable decision by the Tribunal (s 60 defines a reviewable decision as one made under s 62).

13. It is, however, axiomatic that the subject matter of the claim, the determination and the reconsideration under each of these three stages must be substantially the same. A reconsideration, for example, which dealt with a substantively different injury to the one considered in the determination at hand cannot, logically, be a fresh evaluation of the substance of the earlier determination, as the Act intends. It follows that the failure of a claim for a particular injury to pass through each of these three stages may well be fatal to the Tribunal’s capacity to undertake merits review of that claim. In Comcare v Muir[2016] FCA 346 the Federal Court found that the claim made originally by the applicant related to an injury in 2013, but before the Tribunal her claim included an injury occurring before 2013. As such, it held that the earlier injury had not been before Comcare when it determined liability under s 14, and in turn the Tribunal lacked the ability to consider that earlier injury.

14. Madgwick J in Abrahams vComcare (2006) 93 ALD 147 at 152 observed:

    There is not always a bright dividing line available to assist in the decision whether powers of the kinds mentioned are being exercised in aid of a better understanding of a claim made in respect of an injury of which notice has been given, or whether the changed notice is sufficiently fundamental as to indicate that a different injury is being asserted, which will require a different decision from a decision in respect of the originally claimed injury under consideration. In determining that matter, considerations of the purpose of giving notice of injury, and more generally of enabling the decision-maker to have a fair opportunity to investigate the claim properly, are paramount.

15. Whether, in the present matter, Comcare could be said to have had a fair opportunity to investigate Ms Davis’s claim is a matter of conjecture; what is clear to the Tribunal is that it did not consider the claim in a way which – perhaps with the benefit of hindsight – it could reasonably have been said to have been framed, noting that Ms Davis is not a lawyer and, understandably, did not employ the language of the Act in formulating her claim or her request for reconsideration. Compounding that lack of precision, however, are what the Tribunal considers to be errors in Comcare’s consideration of the claim.

16. As already noted, Comcare accepted liability under s 14 of the Act for conditions arising from Ms Davis’s 2006 fall. Specifically, on 2 March 2006 it accepted liability for:

    ·ankle sprain (left), and

    ·abrasion or friction burn of hip/thigh/leg/ankle (right) (knee).

17. Following her 2013 fall, Ms Davis submitted a fresh claim for compensation. In it she asserted an injury which occurred on 3 October 2013, affecting the right knee and right wrist. In answer to the application form’s question asking what injury or illness she was claiming for, she wrote Diagnosed condition TBA by Doctor. In a subsequent report to Comcare dated 20 January 2014 her GP, Dr Tang, reported that Ms Davis suffers from Right knee ACL disruption with complex tear of medial meniscus…

18. Comcare rejected this claim on the basis that the injury being claimed for appears to be linked to the 2006 incident. In the determination dated 21 February 2014, the Comcare delegate noted Dr Tang’s opinion that the recent fall had aggravated the injuries of 2006. The delegate went on to find that:

    Although your employer has confirmed you tripped, stumbled and fell on the footpath whilst you were walking between work sites, there is no evidence of a new injury occurring.

    Instead the evidence suggests your longstanding right knee ACL disruption and medial meniscus tear, which required surgical intervention in 2009, as a result of your claimed incident in 2006.

    I have considered the medical evidence before me and I am not satisfied you have suffered a new injury as a direct result of the incident of 3 October 2013. Nor am I satisfied you have aggravated your pre-existing right knee and right ankle injuries. I have preferred the opinion of Assoc. Prof. Miniter due to his specialist qualifications.

19. Ms Davis wrote a letter to Comcare on 17 April 2014, referring to the delegate’s determination and making of the following request:

    Based upon a previous claim (19537/7), where Comcare accepted liability for my right knee and left ankle [i.e. the 2006 fall], I feel that this issue/injury was never resolved and this current situation/injury I believe may be linked to this previous injury.

    Therefore I would like this case reopened/reviewed in light of my current injury. Dr Tang and Dr Miniter have both referenced and referred to this previous injury and have provided linkages to this original claim, therefore I would like this considered as part of the review.

    The letter was treated by Comcare as a claim for compensation against the accepted condition arising from the 2006 fall.

20. In a determination of 20 August 2014, Comcare’s delegate referred to Dr Tang’s report of 20 January 2014, and observed:

    In his report, Dr Tang has stated that you currently suffer from a ‘right knee ACL disruption with complex tear of medial meniscus and unstable right ankle’. In addition, Dr Tang states that your current right knee pain is an aggravation of previous right knee pain, however I note that liability was not accepted for an injury to your right knee on claim number 19537/7. Furthermore, while Dr Tang reports you are currently suffering from an unstable right ankle, the primary condition accepted on your earlier claim was for an injury affecting your left ankle.

    The delegate then went on to find:

    Therefore, pursuant to section 14 of the Act, I determine that liability for a secondary right ankle or knee condition be denied and therefore any associated medical treatment also be denied pursuant to section 16 of the Act. Your accounts have been returned for your action.

21. Ms Davis made a request for reconsideration of this determination. The decision on that reconsideration was made on 11 November 2014. The review officer there examined the history of Ms Davis’s claimed conditions subsequent to the 2006 fall, and noted Dr Tang’s opinion that the right knee ACL disruption and meniscus tear represents an aggravation of the condition arising from the 2006 fall. She cites the reports of Dr Tang and Dr Miniter, the only medical reports obtained subsequent to the 2013 fall, but discounts both of them. She then affirmed the earlier determination, saying:

    The evidence before me does not link the 2006 injury to your current pathology on the balance of probabilities; rather the evidence suggests a range of possible contributions towards your stated injuries, which in turn are non-compensable.

22. There is a number of troubling aspects of the way Comcare has executed both consideration and reconsideration of Ms Davis’s claim in matter 2015/5257. First, Comcare appears to have assessed Ms Davis’s claim for an injury arising from the 2013 fall based on subsequent medical diagnoses of her condition rather than the circumstances of the fall itself. It does not appear to have been seriously in dispute that Ms Davis fell when walking between two workplaces on 3 October 2013, and there is some evidence of at least superficial injuries (such as abrasions) arising from that fall. Comcare, however, does not seem to have addressed the question of whether there was a sudden or identifiable physiological change, to use the test in Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286, occasioned by the fall but has jumped prematurely to the secondary issue of what compensable condition might arise from such a fall. Such an approach is misconceived; the medical consequences of an event may not be apparent to an employee at the time of that event, and as such the identification of those consequences cannot be the test of whether an injury has occurred.

23. Secondly, both the determination of 20 August 2014 and the reconsideration of 11 November 2014 appear to have mischaracterised the condition accepted by Comcare following the 2006 fall. In March 2006 Comcare accepted liability, inter alia, for abrasion or friction burn of hip/thigh/leg/ankle (right) (knee) [my emphasis]. The two decisions of 2014, however, refer to Ms Davis’s accepted condition but omit the reference to the final word, knee. The omission is a telling one. In the case of the 20 August 2014 determination, it seems to lead the delegate to refuse liability for a secondary …knee condition, without considering whether the more recent symptoms could be related to the already accepted right knee condition.

24. It appears neither decision maker genuinely considered the question of whether the 2013 fall constitutes an aggravation of the accepted 2006 condition. That such a claim was being put by Ms Davis in her letter of 17 April 2014 cannot be free of doubt – though in the Tribunal’s view any fair reading of the letter would come to that conclusion – but the aggravation issue was most certainly raised by Dr Tang in his report. The decision makers demonstrate a persistent focus on the question of whether possible pre-existing factors might be responsible for the flareup in Ms Davis’s symptoms following the 2013 fall, but seemed to pay scant attention to the question of aggravation.

25. This reading is reinforced by two aspects of the decision of 11 November 2014. The review officer reports I cannot be satisfied that your current symptoms are contributed to, to a significant degree or are the result of your compensable injury that occurred in 2006. The reference to contribution to a significant degree appears to be a reference to the definition in s 5B(1) of a disease, suggesting that the officer was viewing this claim through the prism of an ailment given rise to by the 2006 fall. That would appear, however, to be an inappropriate way of viewing a fall in 2013, which should almost certainly be regarded as an injury (other than a disease) pursuant to s 5A(1). In the latter section, the test is whether the injury arises out of, or in the course of, the applicant’s employment, not whether the condition has been significantly contributed to by that employment. Indeed, the s 5A(1) test appears nowhere to be applied by the review officer to the factual circumstances of the 2013 fall.

26. The other aspect of the decision is that the review officer relied, it seems exclusively, on a report of Dr William Coyle to come to the view that there was no aggravation occasioned by the 2013 fall. However, Dr Coyle’s report was dated 22 October 2008 – some five years before the 2013 fall. It is difficult to understand how the delegate was capable of considering the question of aggravation by relying on a report that cannot have been probative of that question.

27. In these circumstances, the Tribunal is not satisfied that either the initial decision maker or the decision maker on reconsideration adequately addressed, in line with the Act, the contentions raised in Ms Davis’s claim for the 2013 fall. As such, the Tribunal is not confronted with a decision which conforms to the requirements of the Act.

28. A defect in a decision which the Tribunal has a nominal power to review does not deprive the Tribunal of jurisdiction. President Brennan J in Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167 held (at 180):

    Where a decision is made beyond power, the legal effect which the decision-maker seeks to achieve is denied; but that says nothing as to whether the decision may be reviewed, quashed, or otherwise affected by order of a court or of an appeal tribunal… Where ‘decision’ is used in the provisions of the AAT Act relating to a right to apply for review, it is referring to a decision made in fact, and not to the effect which the decision may have under the power in the intended exercise of which it was made.

29. Lawlor has been followed in a number of cases where the Tribunal was found to have jurisdiction to hear an appeal not only where the decision was defective but additionally where the decision maker was not empowered to make the decision, including Hospital Benefit Fund (WA) Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225 and Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213.

30. A further argument regarding jurisdiction was advanced by counsel for Ms Davis at the hearing. It was contended that Ms Davis’s letter of 17 April 2014, to the extent that it constitutes a claim for compensation under the Act, does not comply with the formal requirements contained in s 54. That section provides:

    (1)  Compensation is not payable to a person under this Act unless a claim for compensation is made by or on behalf of the person under this section.

    (2)  A claim shall be made by giving the relevant authority:

    (a)  a written claim in accordance with the form approved by Comcare for the purposes of this paragraph; and

    (b)  except where the claim is for compensation under section 16 or 17, a certificate by a legally qualified medical practitioner in accordance with the form approved by Comcare for the purposes of this paragraph.

    (3) …

    (4) …

    (5)  Strict compliance with an approved form referred to in subsection (2) is not required and substantial compliance is sufficient.

    The Tribunal did not seek submissions from the parties on the question of whether, notwithstanding Ms Davis’s failure to use the appropriate form, subsection (5) could be said to have nonetheless preserved the effectiveness of her claim. Without finally determining that question, the Tribunal merely observes that this is one more basis on which to doubt the wisdom of reviewing this decision.

1. Ordinarily, the proper course of action where a reviewable decision is defective would be remittal of this decision to Comcare for further and proper consideration. In this case, however, it seems that the questions requiring disposal in this application can be resolved by considering the claim in matter 2014/4683, which does not suffer the jurisdictional defects identified in matter 2015/5257.

   The claim for the 2013 fall

2. The reviewable decision in the first claim brought by Ms Davis under the Act (matter 2014/4683) is dated 31 July 2014. It was made in response to the request for reconsideration contained in her letter of 17 April 2014. As previously indicated, it seems reasonable to conclude that the question of aggravation of an earlier condition affecting her knee was being raised by the content of the letter. The reviewable decision is unusually short, finding simply that current symptoms relate to your 2006 injury. Although the issue of aggravation is not referred to explicitly in the brief discussion of the decision maker’s reasons for her decision, she does in preceding paragraphs make reference to Dr Tang’s opinion that the 2013 fall was responsible for aggravating those injuries. Although not free from doubt, I consider that the maker of the reviewable decision did consider the question of aggravation in relation to the 2013 fall, and as such the defect referred to above pertaining to the decision in matter 2015/5257 most probably does not taint the reviewable decision of 31 July 2014. Comcare conceded that the Tribunal has jurisdiction in this matter.

3. Ms Davis gave evidence that, on 3 October 2013, she was travelling between buildings at her workplace to attend a meeting when she tripped and fell, injuring her right knee and right wrist. Both the knee and wrist were grazed, and received some basic medical attention by a first aid officer at the workplace. She could not recall any pain in the right knee occurring in the two years or so prior to this fall. In the approximately 3 weeks between the fall and when she consulted her GP, she said her knee was aching and she felt grinding; her knee was uncomfortable. There was clunking in the knee. The pain continued from October 2013 until the date of hearing; indeed, Ms Davis gave evidence that the pain level had increased in that time.

4. A medical report of Dr John McDonald dated 20 January 2015 was tendered on behalf of Ms Davis. In that report, Dr McDonald diagnosed a Right knee injury with probable rupture on anterior cruciate ligament arising from the 2006 fall. With regard to the 2013 fall, he diagnosed Further soft tissue injury, right knee, as a result of instability from 2006 injury. He went on to report that:

   The 2006 injury has not stabilised. The 2013 injury relates to the 2006 injury which has not stabilised.

   He noted that Ms Davis had reported swelling of the right knee after each fall.

5. A further report from Dr McDonald dated 4 November 2015 was tendered. In it, he was asked to express a view on reports of Dr Anthony Cairns, an orthopaedic surgeon, relating to Ms Davis. After discussing the evidence he records:

   Having given considerable consideration to this it is my belief that Ms Davis ruptured her right anterior cruciate ligament and tore her medial meniscus in the incident of 2006 and not in any other incident… I disagree with the views expressed by Dr Cairns.

6. Dr McDonald also gave evidence by telephone. He said that the anterior cruciate ligament and medial meniscus injuries were most likely associated with a trauma of some sort, but he thought, based on an MRI of the knee in 2013, that the responsible trauma could not have been the 2013 fall. He considered that neither obesity nor hyperuricemia – from which Ms Davis suffers – were likely to have contributed to the ligament tear. Under cross-examination, Dr McDonald modified his position in relation to the origin of the ACL and meniscus injuries; he told the Tribunal that he could not conclusively say that they occurred in the 2006 fall. He affirmed however that they occurred some time significantly prior to 2013.

7. Dr Cairns was also called to give evidence, for Comcare. Two reports he prepared regarding Ms Davis were tendered, one dated 17 February 2015 and the other 17 April 2015. In the first of these, he diagnosed her right knee condition as follows:

   (i)Internal derangement, chronic anterior cruciate ligament tear without symptomatic instability right knee.

   (ii)Marked medial tibiofemoral osteoarthrosis with associated chronic, complex tear medial meniscus, moderate lateral compartment and early patella-femoral compartment osteoarthrosis right knee.

   (iii)...

   (iv)…

   (v)…

   (vi)Obesity.

8. He further reported that her bilateral knee and ankle pathologies are consistent with episodes of trauma, likely associated with constitutional degenerative changes, adversely impacted by her obesity. He added:

   It is very difficult, if not impossible, to differentiate as to which incident in her long history constitutes the major causative factor in the evolution of her current right knee impairment. She asserts that she never fully recovered from the incident of 7 February 2006, and Dr Coyle noted abnormal findings at the time of his assessment on 14 October 2008. Mr Russell-Jones noted findings of synovitis and anterior cruciate ligament insufficiency at the time of his examination on 8 September 2008. Clearly, her right knee was not normal prior to the workplace fall on 3 October 2013. It is also noted that Dr Tang reported “increasing right knee pain, tender medial joint line”, on 16 January 2006.

9. Responding to questions from Comcare related to, inter alia, the 2006 and 2013 falls, Dr Cairns wrote:

   The episode(s) likely constitute an aggravation of the pre-existing condition, as would her obesity, and hyperuricemia if that is confirmed…

   In my opinion, such contribution is likely to have been significant.

   He also wrote that The aggravations have not ceased.

10. In the report of 17 April 2015, he considered a question from Comcare about what aspects of the 2006 work aggravation of Ms Davis’ right knee condition continue. He responded:

    In retrospect therefore, nine years after the event, I am unable to answer this question, suffice it to say that Ms Davis herself asserts that her ongoing right knee and right ankle impairments derive essentially from the incident of 3 October 2013…

11. In live testimony, Dr Cairns said he believed that, typically, the action of falling forward with the knee hitting the ground would not rupture the ACL. He also doubted that the 2006 fall could have caused this injury given that Ms Davis had told him that she had only taken one day off work after the injury, which would not be consistent with as significant an injury as an ACL rupture.

    Consideration

12. Neither Dr McDonald nor Dr Cairns considered that the ACL/meniscus injury had been caused by the 2013 fall. I accept that evidence. Dr McDonald thought it most probable that the injury derived from the 2006 fall; Dr Cairns was much more doubtful about that possibility, but could not be certain as to what precisely had caused the injury, beyond it being a trauma to the knee.

13. Considerable time in the hearing was devoted to examining and cross-examining the medical witnesses as to the likelihood that the ACL/meniscus injury had been caused by the 2006 fall, and as to the contribution made by other factors affecting Ms Davis – such as a biomechanical, age-related disruption of her knee, hyperuricemia (indicating gout) and obesity – to the onset of that condition. Some evidence was also explored as to the possibility that Ms Davis experienced a right knee condition prior to the 2006 fall. I have not set out in detail any of this evidence, because I do not regard it as relevant. This is because, independently of the contribution made by the 2006 fall or the other factors mentioned, Ms Davis must succeed based on either of the medical hypotheses presented to the Tribunal.

14. Although Comcare neither conceded nor denied that the 2013 fall had actually occurred, there was at the end of the day no serious dispute before the Tribunal that it had. It was common ground that the 2006 fall had occurred. It was, furthermore, not disputed that each fall would have occurred in the course of Ms Davis’s employment. Finally, it was not disputed that, as of late 2013, Ms Davis was suffering from a chronic right knee ACL disruption with complex tear of the medial meniscus, a condition associated with a trauma to her knee at some point in time. Against this background, the Tribunal faced two competing hypotheses as to what had caused that condition.

15. Dr McDonald’s evidence was that the condition was most likely the result of the 2006 fall (and that the 2013 fall had little bearing on it). If the Tribunal accepts that evidence, Ms Davis has clearly suffered an injury (other than a disease) in the course of her employment – the test in s 5A. As such, the reviewable decision before the Tribunal, denying liability, would have to be set aside.

16. Dr Cairn’s evidence was that the condition was almost certainly not the result of 2006 fall, but occurred due to some unspecified trauma prior to 2013. However, his opinion was that the 2013 fall aggravated the condition. Indeed, he thought the 2006 fall had also aggravated it. Again, if the Tribunal accepts that evidence Ms Davis meets the test for liability set out in s 5A, that is, she has suffered an aggravation of an injury (other than a disease), with the aggravation occurring in the course of her employment (paragraph (c) of the definition of injury in that section).

17. Liability for her condition under this dichotomy in the medical evidence rests on the assumption that the condition is, indeed, an injury (other than a disease) (s 5A) rather than a disease (s 5B). Consideration of the possible contribution made to the state of her condition by other factors such as gout and obesity would be relevant if the condition could be characterised as an ailment, or an aggravation of an ailment, pursuant to the definition of disease in s 5B. But such a characterisation is not consistent with the evidence of either doctor, who each referred to the injury being the product of a trauma. I am satisfied that the condition in question is an injury (other than a disease).

18. To the extent that it is necessary to choose between the competing hypotheses, I prefer that of Dr Cairns. I accept his evidence that it is difficult, with the passage so much time, to be dogmatic as to precisely what contribution was made by the 2006 fall to the development of Ms Davis’s condition.

19. Accordingly, I find that, on 3 October 2013, Ms Davis fell in the course of her employment and suffered an injury (other than a disease) pursuant to s 5A of the Act. The nature of that injury was both an abrasion to her right knee and an aggravation of a pre-existing injury to that knee, namely a right knee anterior cruciate ligament disruption with complex tear of the medial meniscus, together with osteoarthritis of the right knee. I set aside the reviewable decision of 31 July 2014 and find instead that Comcare bears liability under s 14 for the injury she sustained.

I certify that the preceding 49 (forty -nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries

.......................[sgd].................................................

Associate

Dated: 27 January 2017

Date(s) of hearing:	5/6 September 2016
Counsel for the Applicant:	David Richards
Solicitors for the Applicant:	Hill & Rummery
Counsel for the Respondent:	Kristy Katavic
Solicitors for the Respondent:	Australian Government Solicitor