Franklin and Australian Postal Corporation (Compensation)

[2023] AATA 1987

Franklin and Australian Postal Corporation (Compensation) [2023] AATA 1987 (10 July 2023)

ReviewNumber:       2021/9269, 2022/4006

Division:GENERAL DIVISION

File Numbers:         2021/9269 and 2022/4006

Re:Dean Franklin  

APPLICANT

AndAustralian Postal Corporation

RESPONDENT

DECISION

Tribunal:R Cameron, Senior Member

Date:10 July 2023  

Place:Melbourne

1. The decisions under review, dated 25 October 2021 and 16 May 2022, are set aside and in substitution it is decided as follows:

   (a)That the respondent is liable under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) for the applicant’s claimed injuries identified as:

   (i)“aggravation of osteoarthritis of the right hip” with the date of injury deemed to be 30 November 2020; and

   (ii)secondary “left knee pain” with the date of injury deemed to be 29 October 2021.

2. Pursuant to subsection 67(8) of the Safety, Rehabilitation and Compensation Act 1988 (Cth), the respondent is liable to pay the applicant’s reasonable party/party costs and disbursements of the applications for review, to be agreed, or in the absence of agreement to be taxed by the Tribunal.

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

R Cameron, Senior Member

CATCHWORDS

WORKERS’ COMPENSATION – review of decisions denying liability under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – condition of aggravation to right hip – secondary condition of left knee pain – whether ailment contributed to a significant degree by employment – work duties involving repetitive heavy lifting, pushing and pulling and working on concrete floors – contribution of applicant’s weight and other factors - competing expert evidence regarding causation – consideration of applicant as layman – Tribunal satisfied that notice of injury was given as soon as reasonably practicable – exclusion in subsection 53(1) does not apply – representations in compensation claim were true or else not made wilfully – exclusion in subsection 7(7) does not apply – aggravation of left knee condition arose out of compensable right hip injury – decisions set aside and substituted – costs awarded

LEGISLATION

Safety, Rehabilitation and Compensation Act1988 (Cth)

CASES

Abrahams v Comcare (2006) 93 ALD 147

Arnotts Ltd & Ors v Trade Practices Commission (1990) 97 ALR 555

Comcare v Reardon (2015) 148 ALD 356

Re Tierney and Reserve Bank of Australia [1988] AATA 507

Tippett v Australian Postal Corporation (1998) 27 AAR 40

SECONDARY MATERIALS

Eggleston, Sir Richard, Evidence, Proof and Probability (Weidenfeld and Nicolson, 2^nd ed, 1983)

Harris, Elizabeth C and David Coggon, ‘Hip Osteoarthritis and Work’ (2015) 29(3) Best Pract Res Clin Rheumatol 462

Sulsky, Sandra I et al, ‘Epidemiological Evidence for Work Load as a Risk Factor for Osteoarthritis of the Hip: A Systematic Review’ (2012) 7(2) PLoS One 1

REASONS FOR DECISION

R Cameron, Senior Member

10 July 2023

INTRODUCTION

1. There are two applications before the Tribunal for determination.

2. The first application (No 2021/9269) seeks review of a decision made by a Reconsideration Officer of the respondent on 25 October 2021 (‘the first reviewable decision’). The first reviewable decision affirmed a previous determination made on 21 September 2021 which denied liability under section 14 of the Safety, Rehabilitation and Compensation Act1988 (Cth) (‘SRC Act’) for a claimed condition of “aggravation to right hip” with an injury date of 30 November 2020.

3. The second application (No 2022/4006) seeks review of a decision made by a Reconsideration Officer of the respondent on 16 May 2022 (‘the second reviewable decision’). The second reviewable decision affirmed a previous determination made on 6 April 2022, which also denied liability under section 14 of the SRC Act for a claimed condition of “left knee pain”, which allegedly was sustained on 30 November 2020 and reported as secondary to the right hip injury.

THE EVIDENCE BEFORE THE TRIBUNAL

1. There was both viva voce and documentary evidence before the Tribunal.

2. The documentary evidence consisted of a joint tribunal book prepared by the parties to the application which was received in evidence. Also tendered was one page of clinical notes from the Bendigo Primary Care Centre recording certain details of the applicant’s attendance on that clinic and a sketch plan drawn by the applicant when he was giving his evidence of the layout of his workplace.

3. The following witnesses gave viva voce evidence:

   (b)The applicant;[1]

   (c)Mr McGavock;[2]

   (d)Mr Wilson;[3]

   (e)Mr Jain, an Orthopaedic Surgeon;

   (f)Mr Moaveni, an Orthopaedic Surgeon;

   (g)Dr Mansour, a General Practitioner;

   (h)Dr Ghan, an Orthopaedic Surgeon.

   [1] The applicant made a witness statement dated 15 November 2022. It is at page 1 of the Joint Tribunal Book (‘JTB’).

   [2] Mr McGavock made a witness statement dated 26 May 2023. Attached to that witness statement were 15 photographs which included, amongst other things, lifters, letter and parcel sorting racks and trolleys, parcel bags and letter trays. It is at page 11 of the JTB.

   [3] Mr Wilson made a witness statement dated 31 May 2023. It is at page 34 of the JTB.

THE ISSUES BEFORE THE TRIBUNAL

1. The Tribunal considers that the following issues arise from the material for its determination:

Right Hip Condition

(a)Did the applicant suffer from a pre-existing ailment affecting the right hip prior to 30 November 2020, and if so, what was the diagnosis of such ailment?

(b)Did the applicant suffer from an ailment affecting his right hip on 30 November 2020, and if so, what was the diagnosis of such ailment?

(c)If the applicant did suffer from an ailment affecting his right hip on 30 November 2020, as claimed by him, was the contraction or aggravation of such ailment affecting his right hip contributed to, to a significant degree, by the applicant’s employment with the respondent?

(d)If the applicant suffered from an ailment affecting his right hip on 30 November 2020, as claimed by him which was contributed to, to a significant degree, by his employment with the respondent, is liability for such an injury affecting his right hip excluded by reason of him failing to provide notice in writing of such injury as soon as practicable after becoming aware of same as required by subsection 53(1) of the SRC Act?

(e)Further, or in the alternative, if the applicant suffered from an ailment affecting his right hip on 30 November 2020, as claimed by him, which was contributed to, to a significant degree, by his employment with the respondent, is he precluded from claiming compensation for an injury by reason of the operation of subsection 7(7) of the SRC Act because he had made a wilful and false representation that he did not suffer, or had not previously suffered from such ailment?

Left Knee Condition

(f)Is the applicant suffering from an ailment affecting his left knee, and if so, what is the diagnosis of such ailment?

(g)If the applicant is suffering from an ailment affecting his left knee, did the contraction or aggravation of that ailment affecting his left knee arise out of a compensable right hip injury?

SOME GENERAL OBSERVATIONS ON THE LAY WITNESSES

1. It is appropriate to make some general observations about the evidence given by the lay witnesses. The applicant; Mr McGavock, the Manager, Delivery and Operations employed by the respondent at its Bendigo Delivery Centre; and Mr Wilson, a retired Operations Manager previously employed by the respondent at its Bendigo Delivery Centre, gave evidence by witness statement, and from the witness box.

2. Counsel for both the applicant and the respondent in their submissions sought to have the Tribunal treat the evidence of the other party’s lay witness, or witnesses, with some level of caution. The Tribunal considers that all the lay witnesses did their best in the alien environment of the witness box. Their evidence was given in a realistic and credible way. This is not to say that all of the evidence of each of the witnesses is accepted by the Tribunal. On several individual questions the Tribunal will make appropriate findings subsequently in these reasons. However, overall, they presented as credible witnesses. None of them appeared untruthful.

SOME GENERAL OBSERVATIONS ON THE MEDICAL WITNESSES

1. The Tribunal found the medical witnesses to be reasonable and impressive, who discharged their obligations to assist the Tribunal to reach the correct and preferable decision. Each of the expert medical witnesses gave their evidence in a careful and considered way. As often happens in cases such as this, the expert witnesses for the applicant, Dr Mansour, Mr Jain and Mr Moaveni disagreed with the expert witness for the respondent, Dr Ghan.

2. It cannot be said that any expert witness in this application gave evidence that was in any way unreliable. What occurred was that each of the expert medical witnesses gave their evidence after having considered the patient history furnished to them by the applicant, the respective letters of instruction and attached documents they received and then expressed a genuinely reached and considered expert opinion.

3. The task that is entrusted upon the Tribunal in this setting is to determine which expert opinion it prefers. There was a suggestion in submissions from the applicant that certain aspects of the evidence of Dr Ghan were unreliable. The Tribunal cannot accept this contention. His evidence, and the opinion upon which it was based differed from the other medical witnesses, and he explained why. It was not unreliable.

THE FACTS

1. The applicant is presently 50 years of age. He has been employed by the respondent since January 1994. He has held several positions with the respondent since that time. As and from approximately October 2015 he has worked as a night shift supervisor in the respondent’s Bendigo Delivery Centre.

2. There was some difference between the evidence of the applicant and the respondent’s witness, Mr McGavock, concerning the physical demands imposed on the applicant in the discharge of his duties. The applicant described his work in various terms, including that it was physically demanding and that he was on his feet most of the night. Prior to commencing the night shift he did not perform physically demanding repetitive work. The evidence of Mr McGavock was that the work performed by the applicant was predominantly mail processing. The applicant gave evidence that the predominant work he was doing, on the other hand, was not mail sorting, but was the handling and processing of parcels. Mr McGavock did, however, concede in cross-examination that the applicant was handling parcels and that parcel volumes had been increasing year-on-year. He also acknowledged in cross-examination that during the period of the COVID pandemic there was a large increase in parcel volumes. It was described by him as, “a boom period for us”. The applicant in his evidence, which was not challenged in cross-examination, stated that parcel work, with both small and large parcels, involved significant physical labour by reason of the, as he put it, “pushing, pulling, lumping and loading” of the volumes of parcels. The Tribunal also accepts that whilst much of that work is performed whilst standing during the night shift, some of the work can be performed from a sitting position such as when sorting mail in what was described in the evidence as a small letter sorting frame.[4]

   [4] A photograph of a small letter sorting frame and the chair in front of it is contained in attachment "BM7” to the witness statement of Mr McGavock.

3. At the commencement of his shift the applicant’s first task was to attend at the Mail Centre which was approximately 35 to 40 m away from the Delivery Centre, and collect a metal container known as a “ULD”, being a unit load device. A ULD is a metal type pallet upon which is fixed a cage in which mail items and mail trays are placed. Examples of a ULD were contained in the photographs attached to Mr McGavock’s witness statement “BM11”, “BM12” and “BM13”.

4. When undertaking the task of collection of a ULD, the applicant would use a device known as a “BT Lifter”. Mr McGavock described a BT Lifter as a lifting device which sits on wheels. Mr McGavock stated there were two models of BT Lifter available for the applicant to use during his shift. One model was described as a manual push/pull with electrical lifting capacity which was identified in a photograph attached to Mr McGavock’s witness statement and marked with the letters “BM1”. The other model of BT Lifter available for use by the applicant was described by Mr McGavock as a fully electric model which had an electric forward and reverse motion. In other words, there was effectively no manual labour required to effect movement of the ULD from the Mail Centre to the Delivery Centre, whereas with the manual version of the BT Lifter the applicant would be required to push or pull the lifter which would require some level of physical exertion. The fully electric BT Lifter was also identified in a photograph attached to Mr McGavock’s witness statement and marked with the letters “BM2”. The evidence was that a BT Lifter itself weighed approximately 120 kg.

5. The applicant stated in his evidence, which was not seriously challenged, that the Delivery Centre staff were not allowed to use the powered BT lifters. The reason that the Delivery Centre staff were not allowed to use the powered BT lifters was because they belonged to, or were used by, the Mail Centre staff employed by the respondent who worked through till approximately 3.30 am. By that time all of the mail had been brought to the Delivery Centre. Then the only items that remained to be brought over to the Delivery Centre were the mail and parcels for the town of Heathcote, which were also processed or handled by the Delivery Centre employees.

6. Once the ULDs had been moved by the applicant from the Mail Centre to the Delivery Centre the applicant’s first task was to unload the mail trays onto trolleys for the postal workers. Usually there were three or four ULDs to be unloaded at the commencement of each shift. There was overall agreement between the witnesses that each mail tray contained in a ULD weighed between 2-7 kg each. However, there was some disagreement between the witnesses as to the number of mail trays contained in each ULD.

7. The applicant asserted that each ULD usually contained approximately 120 standard letter trays. The respondent’s witnesses, particularly Mr McGavock, stated that a full ULD would contain no more than approximately 40 large letter tubs, or approximately 68 standard letter trays. In support of this contention, he relied upon the photographic attachments to his witness statement, namely “BM13” which depicted a full ULD of large letter trays totalling 40 in number, and “BM12” which depicted a ½ full ULD of small letter trays numbering 31. Therefore, his evidence was that if a ½ full ULD had 31 small letter trays it would not be possible for a full ULD to accommodate 120 such trays. The Tribunal accepts the evidence of Mr McGavock on this topic. It does so because there is an appropriate evidentiary foundation for its acceptance by reference to the attachments “BM12” and “BM13” which demonstrate that the applicant’s evidence that 120 standard letter trays could fit into a ULD is unlikely.

8. The Tribunal accepts the evidence of Mr McGavock that the large letter tubs are used to hold large A4 size mail articles and magazines. Normally, they are filled to the halfway mark to allow interlocking when they are stacked on top of one another. Examples of large letter tubs were contained in photographs attached to his witness statement and numbered “BM10” and “BM14. An example of a ULD full of large letter trays stacked and interlocked with one another, was contained in the photograph attachment “BM13” to his witness statement.

9. The applicant also stated that large letters were sorted by hand into sorting racks which required him to stand or work on concrete flooring.[5] Mr McGavock produced several photographs as attachments to his witness statement which revealed that all the sorting racks had fatigue matting in front of them so as to ensure that the respondent’s employees at all times avoided the impact of standing on, or risks associated with standing on, hard concrete surfaces. The photographs concerned were “BM3”, “BM4”, “BM5”, “BM6”, “BM7” and “BM15”. There was some conflict in the evidence of the applicant and that of Mr McGavock concerning fatigue matting. The applicant stated that he did not stand on fatigue matting because he did not feel stable when standing on. Therefore, he would manoeuvre the fatigue matting away from the workspace where he stood. Similarly, the applicant also stated that a co-worker employed with him at the respondent’s Delivery Centre, Ms Pearce, engaged in a similar practice.

   [5] The applicant gave evidence to this effect in both paragraphs 11 and 25 of his witness statement. He also gave evidence to a similar effect whilst in the witness box.

10. Mr McGavock disputed the applicant’s evidence on this topic. He stated he did not know why the fatigue matting would be unstable, because obviously, it has cushioning. It is specifically designed to take the pressure off an employee that would otherwise be experienced were they to stand on a hard unprotected concrete floor. As he described it, the fatigue matting did have, “an amount of give” in it which clearly a concrete floor did not have. It was not suggested in cross-examination of the applicant that his evidence concerning the moving of the fatigue matting by both he and Ms Pearce was either mistaken, or for that matter, untruthful. The Tribunal accepts that the applicant and Ms Pearce did move the fatigue matting as he said in his evidence. This means that he walked and stood on a bare concrete floor at all times whilst discharging his duties throughout a shift. This finding is also consistent with the description of his work activities that the applicant furnished to several of the doctors who examined him and prepared reports that were in evidence before the Tribunal.

11. There was a change of the system adopted for the processing of large letters in late 2016. According to Mr McGavock this change resulted in approximately 80% of all large letters being pre-sorted into large letter tubs directly to what was described as a “posties round”. Accordingly, this resulted in a reduction in the volume of sorting work that the night shift staff undertook. The applicant said that the change did result in an increase in the number of tubs used. The change did also require the applicant to unload several ULDs and transfer their contents into usually four empty ULDs. Customarily, there were 24 large letter tubs per ULD. The applicant estimated that the tubs typically weighed between 5 and 16 kg. Upon loading the empty ULDs, the applicant would convey them to the Delivery Centre for weighing. They were then returned to the hallway and individual tubs placed under the trolley for the appropriate posties round. The upshot of this, the applicant said, was that whilst the changed system did reduce sorting and, to some extent, standing, it did increase the number of tubs to be handled. As there was a tub for every round, it created more manual work for him. This particularly involved lifting, pushing, pulling and stacking of the tubs. The applicant was assisted by another staff member undertaking this task which usually took the pair of them between 30 to 40 minutes to complete.

12. Once the large letter sorting had been completed by the applicant, his evidence was that his next task was to return to the Mail Centre and sort small and large parcels together with the mail for Heathcote. The parcels were sorted into empty ULDs between the post office and the roadside delivery. Parcel weight varied from between 1 to 25 kg. Mail was placed in what was known as a “rack”. The parcels were then “carded” and placed in the appropriate ULD. When the ULDs were filled the applicant conveyed them to the Mail Centre for dispatch. This task usually took approximately four hours.

1. Additional tasks performed by the applicant during a typical shift included sorting small parcels, pushing trolleys containing the parcels in and out of the hallway, tipping bags—usually 15 bags weighing approximately between 6 to 16 kg—and unloading the racks. With respect to small parcels there were typically one to two ULDs per shift weighing approximately 200 kg each. This task customarily occupied up to two hours.

2. It was relatively common ground between the witnesses that parcel volumes were increasing steadily over time, particularly small parcel volumes. To accommodate this increase in volume, additional racks for the parcels, particularly small parcels, were installed. Consequently, parcels were sorted into large letter tubs and this volume increased to approximately three to four ULDs per shift. Such ULDs could weigh up to approximately 400 kg. As part of this duty the applicant had to tip the contents of postal bags weighing between 6 and 16 kg into bins and then sort the contents manually into the tubs. Upon filling a tub they were transferred into the hallway on a trolley.

3. The applicant gave evidence that until approximately August 2021 the tasks that he carried out in each shift were in a relatively restricted workspace. This created additional difficulties for him, particularly when he manoeuvred the ULDs. A sketch plan of the workspace during that time was drawn by the applicant whilst he was in the witness box. This evidence was not challenged.

4. From approximately May 2018 the number of full-time staff members engaged on the night shift was reduced from four to three. Mr McGavock explained in his evidence that the reduction in numbers was because of the declining volume of standard and large letters that required sorting. The Tribunal is satisfied that with this change, due to medical restrictions placed on the other employees engaged on the night shift, the applicant became the sole employee who undertook large letter sorting.

5. From approximately late July 2018 another employee was engaged by the respondent in the Delivery Centre who then took over the work previously undertaken by the applicant with respect to Heathcote, the standard mail trays and also provided some assistance with respect to large letter tubs work.

6. There was some debate in the evidence concerning Christmas postage volumes. The Tribunal is satisfied, as is obvious, that pre-Christmas postage volumes are traditionally much higher. Notwithstanding the increase in postage volumes pre-Christmas, the volume of standard and large letters has declined significantly in recent years. This is largely due to internet use reducing the need for conventional mail services.

7. Whilst this evidence speaks for itself, the Tribunal considers that it establishes that other than when he was on restricted duties, the applicant’s work tasks required him to engage in repetitive acts of lifting postal articles of a variety of weights, some of which were substantial. Further, his tasks required him to frequently push and pull, particularly the loaded ULDs using a manual BT Lifter. By reason of these tasks performed by the applicant during a typical shift since approximately October 2015 the Tribunal finds that it did place a significant increased workload on his hips and lower limbs.

8. The applicant stated that commencing in approximately early 2020 he experienced what he described as muscle tightness in his right leg and hip area. It did not initially cause him much concern. However, he contended that his symptoms became more noticeable from approximately April/May 2020. It is surprising that if the applicant’s symptoms became more noticeable from this time that he did not raise it with his managers in the workplace, being either Mr McGavock or Mr Wilson. One would have expected him to have raised it in particular if the tasks he was required to undertake at work amplified the pain or discomfort that he experienced. Certainly, his evidence was that he experienced hip and thigh soreness by the end of each shift.

9. Eventually, the applicant was placed on what was described as, “medical restrictions”. When the applicant and all the other persons employed on the night shift at the Delivery Centre were subject to medical restrictions it was the usual practice of the respondent to roster an additional staff member who was not subject to any such restrictions to work on the night shift.

10. The applicant gave evidence that for some time by the end of a night shift he would experience pain in his right hip and leg. What usually occurred was that after conclusion of the shift he would go home to sleep and usually put an electric blanket on which relieved such pain. By the time he woke up such pain had gone away. In another part of his evidence from the witness box he described it as intermittent pain.

11. There was some conflict in the evidence as to precisely when this experience of intermittent pain in his right hip and thigh occurred. In the witness box the applicant said that it became noticeable at the end of a shift approximately 12 months prior to late November 2020, in late 2019. The applicant gave a similar timeframe to the orthopaedic surgeon, Mr Jain, when he saw him in June 2021. Although in cross-examination he conceded that the history he gave Mr Jain meant that he would have been experiencing pain since approximately mid-2019. This response by the applicant was also consistent with what Mr Jain recorded in his report to Dr Locke of 21 June 2021 that the applicant told him, “his right hip has been quite stiff for the last two years, however his pain has worsened mainly in the last seven to eight months.”[6] The pain was described as, “a dull, constant ache and aggravates on weight bearing or on twisting activities”. Dr Ghan in his report of 10 September 2021 recorded that the applicant’s right hip pain had been ongoing for the past two years.[7] This history provided by the applicant was largely consistent.

    [6] The report of Mr Jain to Dr Locke of 21 June 2021 is at page 133 of the JTB.

    [7] The report of Dr Ghan of 10 September 2021 is at page 59 of the JTB.

12. However, in a report of 17 February 2021 addressed to Dr Mansour, Dr Locke recorded that the applicant in, “about mid 2018 started to experience right anterior groin and thigh pain” when delivering a lawn bowl with his left leg forward and hip flexion.[8] The applicant is a dedicated player of lawn bowls, having taken up the pursuit when he moved to Bendigo in approximately 2010. Dr Locke also observed in that report that from that time (mid 2018) until then, the applicant’s pain had been getting worse and he was noticing a loss of movement in his right hip. Dr Locke also recorded that the applicant’s pain was a tight intermittent discomfort. Additionally, he recorded that the applicant’s pain increased during the day and towards the end of the week. Such pain was made worse by delivering a bowl, getting into a car, getting out of the car and going upstairs. He also observed that rest and Voltaren relieved the pain.

    [8] The report of Dr Locke to Dr Mansour is at page 124 of the JTB.

13. It should also be observed that the history recorded by Dr Locke does to some extent vary with the very brief history recorded by Dr Mansour in the clinical note that he made of the applicant’s attendance on him on 30 November 2020.[9] In that clinical note it was recorded that the applicant had pain on his right thigh, massage had helped and on the previous day, as soon as the applicant put his working shoes on, his right thigh started to hurt more.

    [9] The clinical note made by Dr Mansour of his consultation with the applicant on 30 November 2020 is at page 100 of the JTB.

14. Whilst the history given to Dr Locke differs from the history provided to other medical practitioners who saw the applicant about when he started experiencing intermittent pain in his right hip, it is apparent that the applicant had at the very least experienced these symptoms for at least one year prior to him consulting Dr Mansour on 30 November 2020. Quite probably it was for a longer time. In cross-examination the applicant was challenged about his recollection of the history that he furnished to Dr Locke. It was also put to the applicant that Dr Locke did not mention work factors as being a source of aggravation of the applicant’s right hip condition. It was suggested to the applicant that if his hip was caused by the work conditions he would have mentioned it to Dr Locke. The applicant explained that he believed his condition was a tight muscle and that it would get better. He also reiterated that he would leave work each morning with a sore hip, but it would get better. He stated he wasn’t focusing on work at the time. He thought his hip could be fixed and he could get on with his life. The Tribunal accepts this explanation from the applicant. It is understandable. Most people who are not versed in the finer points of medicine would probably not believe or even consider that a hip complaint such as that experienced by the applicant at that time would be caused by severe osteoarthritis at a comparatively young age. The more logical assumption on the part of a layman would be something different that could probably be resolved by appropriate medical intervention.

15. As noted earlier, the Tribunal did not find the applicant to be an unreliable witness or one who was prone to embellishment, exaggeration or reconstruction. It is more probable than not, as frequently occurs, when people regularly experience pain, that the precise date that the applicant first experienced his symptoms was not readily recalled. More likely than not his recollection of the precise date that he first experienced the intermittent pain symptoms in his right hip was to some degree faulty or clouded. The Tribunal does not form an adverse view of the applicant, nor his evidence, by reason of this fact. What is apparent is that for some time, most likely in excess of a year, or thereabouts, he experienced intermittent pain in his right hip at the end of the shift. As he said in evidence, the pain usually subsided after he had rested and slept, usually with the assistance of an electric blanket. Nonetheless, when he returned to work there was an onset of the pain in his right thigh by the time each shift concluded. This pattern of the pain he experienced changed at the end of November 2020. It was this change in the pattern of pain he experienced that prompted him to consult Dr Mansour.

16. The applicant’s evidence was that in approximately late November 2020 he first felt severe pain in his right thigh. He said that the pain worsened when he went to put his working shoes on. Unlike his previous experiences, the pain did not subside with either rest, or the application of heat generated by an electric blanket. As he put it in the witness box, “the pain never went away”. He also expanded on these observations in his evidence when he stated that at that stage it was a problem putting on his shoes and socks and getting out of the car. In particular he explained that he had to support his right leg when getting in the car. It required the use of his hand to assist his right leg in the car through or over the door sill. This development, being the increased pain he experienced, prompted him to attend his general practitioner Dr Mansour on 30 November 2020. Details of what Dr Mansour recorded in his clinical note made upon attending the applicant on that day have already been referred to. The applicant was given a medical certificate by Dr Mansour certifying him as unfit for four days.

17. The applicant attended Dr Mansour for a further review on 3 December 2020. Dr Mansour’s clinical notes were in evidence.[10] They recorded the same symptoms as the previous consultation on 30 November 2020, with a recurrent pain on the upper part of the right femur with no history of trauma. An x-ray arranged by Dr Mansour was undertaken of the applicant’s right hip on 3 December 2020 which revealed right hip osteoarthritis.

    [10] The entries in the clinical notes of Dr Mansour for the applicant’s consultation with him on 3 December 2020 are at page 101 of the JTB.

18. After receiving the medical certificate from Dr Mansour for four days on 30 November 2020, the applicant returned to work after the four days provided for in the certificate. It appears that he was not placed on any restricted or light duties. This is surprising given the gravity of the pain that the applicant said he experienced after this time. It is particularly so given that such pain was continuous. Another matter arising from this fact is that at that time there were only three staff members employed on the night shift at the Bendigo Delivery Centre. Significantly, the two other members of staff who worked on that shift with the applicant were on restricted duties, or as it was sometimes referred to in the evidence, subject to “medical restrictions”. This meant that the applicant was the sole person who was considered fit for normal or unrestricted duties. As a consequence he was the sole employee on the night shift who was able to, and continued to, carry out the tasks of heavy lifting.

19. The applicant consulted Dr Mansour with respect to his hip problems, and the pain he was experiencing from it, again on 30 December 2020. The clinical note of that consultation with the applicant records him experiencing recurrent pain on the right hip area, right groin, right gluteal region and across the ilio-tibial tract, with no history of trauma.[11] Dr Mansour then arranged for the applicant to undergo an ultrasound.

    [11] The clinical note of the applicant's attendance on Dr Mansour of 30 December 2020 is at page 102 of the JTB.

20. Dr Mansour also referred the applicant to a Sports & Exercise Physician, Dr Locke. Dr Locke examined the applicant and prepared a written report which was addressed to Dr Mansour and dated 17 February 2021.[12] Although Dr Locke prepared this report, which was in evidence before the Tribunal, surprisingly as he was the first medical specialist that the applicant was referred to by Dr Mansour, he did not give evidence at the hearing of this application.

    [12] The report of Dr Locke to Dr Mansour of 17 February 2021 is at page 124 of the JTB.

21. An ultrasound of the applicant’s right hip was undertaken on 15 January 2021. The ultrasound report showed Trochanteric bursitis with gluteal partial thickness tears and Rectus femoris insertional tendinosis with a possible partial tear.[13]

    [13] The ultrasound report of 15 January 2021 from radiologist Dr Wang is at page 116 of the JTB.

22. Dr Locke arranged for the applicant to have an MRI of the right hip joint and a further x-ray. These medical images showed severe osteoarthritis of the right hip.

23. The applicant was then referred by Dr Locke to Mr Jain, an orthopaedic surgeon, on or about 6 May 2021 concerning the applicant’s right hip joint osteoarthritis.[14] Mr Jain assessed the applicant on 21 June 2021. He observed from an examination of the relevant medical images of the applicant’s hips that he had been suffering features of severe osteoarthritis with almost complete obliteration of the joint space. Mr Jain recommended a total hip replacement. Additionally, Mr Jain issued a medical certificate on 21 June 2021 certifying the applicant as unfit for work from 21 June 2021 until 25 June 2021 inclusive, due to severe hip pain inhibiting his ability to walk and perform his usual daily activities.[15] On the same day Mr Jain reported to Dr Locke. In his report, amongst other things, he expressed the opinion that based on the applicant’s overall presentation he believed that his symptoms were due to underlying osteoarthritis and that work related activities contributed to the aggravation of his pain and that overall, he was functionally incapacitated. More will be said about this later in these reasons.

    [14] The letter of referral from Dr Locke to Mr Jain is at page 131 of the JTB.

    [15] The medical certificate from Mr Jain dated 21 June 2021 is at page 132 of the JTB.

24. The applicant’s evidence was that it was Mr Jain who first informed him that his right hip problem was work-related and that work had aggravated it. It was in this context after having been informed by Mr Jain that it was his opinion that his hip problem was work-related that the applicant decided to make a compensation claim. It was a perfectly reasonable position for the applicant to adopt. It is also behaviour that was consistent with the evidence that was referred to earlier given by him that until Mr Jain informed him, he wasn’t focusing on work as a possible source, or cause of his condition. His main priority was to have his condition treated and then get on with his life. He genuinely believed the right hip condition he experienced was treatable and that he would recover.

25. Following his attendance on Mr Jain the applicant, on or about 22 June 2021, spoke to the respondent’s Operations Manager at the Bendigo Delivery Centre, Mr Kevin Wilson, and told him of his right hip injury. Mr Wilson in evidence stated that he was spoken to by the applicant on or about that date and that it was the first time he had been informed that he wished to make a claim for compensation for such injury. It is apparent that it would have been the first occasion that the applicant had informed Mr Wilson of his wish to claim compensation. This is because the applicant had only been informed the day before by the orthopaedic surgeon he had consulted, Mr Jain, that his hip condition was work-related. Mr Wilson had, however, been contacted by the applicant concerning his hip complaint in the days prior to their conversation on 22 June 2021.

26. The applicant contacted Mr Wilson on Sunday 20 June 2021 at approximately 9.02 PM by text message as follows:

    Have got up and hip is really sore tonight. Sorry for late notice Not work-related.[16]

    [16] A photograph of the text message exchange between the applicant and Mr Wilson is contained in attachment "KW1” to the witness statement of Mr Wilson.

27. Mr Wilson responded to that text message from the applicant as follows:

    Ok, not much we can do now, work something out in the morning.

28. The following day, namely Monday 21 June 2021 at approximately 5:27 PM, the applicant sent a further text message to Mr Wilson as follows:

    Kevin just got out of the specialists will not be in for the rest of the week. Have sent dinger a message and will send one to Rose. Will drop certificate off tomorrow.

29. That text message sent by the applicant on 21 June 2021 at 5:27 PM was sent by the applicant to Mr Wilson following his consultation with Mr Jain, the orthopaedic surgeon.

30. Mr Wilson responded as follows:

    Ok, no worries.

31. A reasonable amount of time during the evidence of the applicant, Mr McGavock and Mr Wilson occupied what occurred on or about 22 June 2021 at a meeting between them. The Tribunal considers that the events at that meeting have little bearing on the task that it has to determine for the purposes of this application. Nonetheless, some attention will be paid to the key elements of the interaction between those parties at the meeting.

32. Shortly after the applicant notified Mr Wilson on 22 June 2021 of his hip injury and his wish to make a claim for compensation with respect to same, the applicant met with him and Mr McGavock. Both Mr Wilson and Mr McGavock gave evidence that it is normal procedure that when a staff member expresses an intention to make a claim for compensation, or obviously suffers an injury at work, that the injured staff member meet with a supervisor, manager, or as they are sometimes described, their “team leader”, to explain the process for making such a claim. This process involves, in addition to the completion of a compensation claim form, the completion of an incident report.

33. Both Mr McGavock and Mr Wilson gave evidence in substantially similar terms that there was a requirement imposed by the respondent that an incident report form was required to be lodged prior to the completion and lodgement of a workers’ compensation claim form. This evidence from them was not the subject of any challenge when they were in the witness box.

1. The applicant, on the other hand, referred to the fact that he had previously made a claim for a shoulder condition in 2019, following which he was placed on medical restrictions, and that a meeting with his supervisor was not required prior to making that claim. The online system of lodging an incident report and a claim for compensation was described by the witnesses as a new one. It seems more probable than not that when an online system of making compensation claims was introduced, which appears to have occurred after the applicant’s shoulder claim in 2019, that the practice of requiring the injured employee to attend a meeting evolved. Whether or not a staff member proposing to make a compensation claim is, or is not, required to meet with their supervisor seems to the Tribunal irrelevant to the issues to be determined in this application. Therefore, nothing further will be observed with respect to this question.

2. Shortly after informing Mr Wilson of his hip injury the applicant met with Mr McGavock and Mr Wilson to discuss his injury and the process of making a claim for compensation. Mr McGavock stated that such meeting occurred on or about 23 June 2021, Mr Wilson stated it was shortly after he had been notified by the applicant of his hip condition on 22 June 2021 and the applicant gave evidence in terms to a similar effect. The meeting occurred when the applicant attended his workplace to drop off the medical certificate that he had received from Mr Jain. Mr McGavock’s evidence was that initially the meeting was between the applicant and Mr Wilson and that he came into it part way through. Mr McGavock stated that he was present in the meeting for approximately 5 to 10 minutes. The Tribunal is satisfied that various topics were canvassed during the course of that meeting or as the applicant called it, his “various options”. The dominant theme of that conversation was that the applicant explained to Mr McGavock and Mr Wilson that the orthopaedic surgeon, Mr Jain, had advised him that he required hip replacement surgery. He then addressed the means of how such surgery could be affected, which included resort to the public health system, taking out private health insurance, paying for the surgery himself or making a claim for workers’ compensation.

3. The Tribunal is satisfied after having had the opportunity to observe the applicant, Mr McGavock and Mr Wilson, that in the meeting with them the applicant stated that he could not afford the cost of hip replacement surgery and that the delay in the public hospital system was far too long. Clearly, the potential cost of a hip replacement operation was of significant concern to him. It was a significant sum. Further, the Tribunal is satisfied that the applicant said words to the effect that he did not have private health insurance and would not be taking it out to cover the cost of such surgery. He also stated that the waiting period for private health cover was also too long. It is more probable than not that the applicant also used the words to the effect that he could not afford the $20,000 required for such an operation. The Tribunal notes that in his evidence from the witness box the applicant disputed this and stated that he could afford $20,000 required for such an operation.

4. However, the Tribunal is not satisfied that the applicant used words to the effect that he had no choice but to make a claim for workers’ compensation. It seems unlikely that the applicant would have used such words as he genuinely believed, following the advice given to him by Mr Jain, a highly qualified medical specialist, that the aggravation of his right hip osteoarthritis had been significantly contributed to by reason of employment with the respondent. Therefore, he had a perfectly proper right to make such a claim. It just seems inconceivable, even in a casual conversation with his superiors, that he would have made such a statement in terms that were contrary to the advice he had received from Mr Jain, and against his interests given the genuine belief that he held concerning the cause of his condition. Once again, the Tribunal does not consider that who said what during this meeting is relevant to the issues to be determined.

5. Following that meeting Mr McGavock forwarded an email on 28 June 2021 to his manager, Mr Sinni, in which he recorded that the applicant had stated to him, amongst other things, “he has stated to us he requires a hip operation but cannot afford it so has no option than to claim comp.” A copy of that email was attached to the witness statement of Mr McGavock and marked with the letters “BM16”.

6. In Section 10, “Manager/Supervisor Section”, of the Claim for Compensation and Rehabilitation completed by Mr McGavock where provision was made for “additional information”, Mr McGavock recorded the following:

   Dean has discussed his injury with both myself and Op’s manager Kevin Wilson, Dean stated he could not afford the twenty thousand dollars for his required hip operation so had no choice but to claim compensation.

7. Save for the observations aforesaid, the Tribunal should say that it otherwise accepts the evidence of Mr McGavock and Mr Wilson concerning the comments made by the applicant at that meeting for several reasons. They presented as fair and impartial witnesses who were not prone to exaggeration, embellishment or reconstruction. They had no reason to be other than reliable witnesses. Both Mr McGavock and Mr Wilson corroborated each other’s version of what occurred at that meeting. It should also be viewed with a degree of realism. These comments made by the applicant are ones that are likely to be recalled by Mr McGavock because they are rather unique. Also, whilst unique they do to some considerable extent reflect the reality that the applicant faced given that he had no private health insurance at the relevant time, which is understandable, if not somewhat misguided.

8. The Tribunal also considers that the comments recorded by Mr McGavock in the email to his Manager Mr Sinni and in the additional information provided in the Manager/Supervisor Section of the Claim for Compensation and Rehabilitation that the applicant could not afford a hip operation, were made relatively soon after the meeting whilst such events were fresh in his mind and would not have been made up by him, nor would he have been so completely mistaken in his recollection as to include something so patently wrong. He had no reason to make up these comments, nor was he unlikely to be so completely mistaken in his recollection of what occurred at the meeting. Therefore, those accounts in those contemporaneous documents, other than the reference to the applicant having no choice but to claim compensation, mostly are more probable than not to be an accurate account of what occurred at such meeting.

9. A final observation should be made concerning the meeting held on or about 23 June 2021 between the applicant, Mr McGavock and Mr Wilson. As the Tribunal observed during closing submissions made by counsel, it considers that what might or might not have happened at the meeting to be irrelevant to the issues for determination, or as the Tribunal described it, a “sideshow”. The respondent, in closing submissions, did not assert that what the applicant stated during that meeting in some way constituted an admission, or perhaps more accurately, an admission against interest, such that he did not believe that the aggravation of his hip condition had been significantly contributed to in the relevant sense by his employment with the respondent. The submission advanced by the respondent was that any findings made against the applicant concerning what occurred at that meeting go to his credit. Accordingly, his evidence should be treated with caution. The submission as developed even went so far as to say that in some respects the applicant had not been truthful. For the record, the Tribunal did not find the applicant to be untruthful. Where it has not accepted his evidence concerning the meeting on or about 23 June 2021, it has done so because it considers his recollection of that meeting is more probably than not faulty or mistaken. The questions for the Tribunal to determine are resolved by it making the relevant findings of fact, which predominantly centre around what physical tasks the applicant undertook during his shifts. Having done so, the Tribunal is to then consider the expert medical evidence before it to determine whether or not the aggravation of the applicant’s hip condition had been significantly contributed to, in undertaking those physical tasks, during his employment with the respondent.

10. An “incident report” (officially described as “Safety Event/Investigation – Output Form”) dated 25 June 2021 was generated and lodged online by the applicant.[17] In the section of the form headed, “Event Details” the applicant gave the “Event Date” as 30 November 2020, and the “Event Time” as 7.00 am. The applicant has given the following “Description” of the “Event” in that section:

    Pushing and pulling of ULDs lifting of parcels, bags and tubs. Currently we have 3 staff on nightshift 2 of the staff are on restricted duty and unable to perform these tasks. There used to be a 4^th staff member who assisted with the heavy lifting, however since they left [I] have had to do all the heavy lifting on my own.

    [17] The Safety Event/Investigation – Output Form is at page 79 of the JTB.

11. The incident report form required an investigation to be undertaken by the respondent via its “Responsible Person”, namely Mr McGavock. In the section of the incident report headed, “Investigator Notes” he has recorded the following:

    Pushing and pulling of ULDs lifting of parcels, bags and tubs. Currently we have 3 staff on nightshift 2 of the staff are on restricted duty and unable to preform [sic] these tasks.

12. Further, in the incident report form in the section headed “Contributing Factors”, Mr McGavock has inserted the very same words used in the section headed “Investigator Notes”. Also, in that section there is a subheading headed, “Classification” in which Mr McGavock has inserted the words, “Root Cause”.

13. A Claim for Compensation and Rehabilitation was ultimately lodged with the respondent on 30 July 2021.[18] The claim form was apparently lodged online. The applicant gave evidence that he lodged, or perhaps more accurately attempted to lodge, a claim form online shortly after he met with Mr Wilson and Mr McGavock. For some reason that application was unsuccessful, and he was advised by an officer of the respondent that he would need to re-lodge his claim, or as he put it, start all over again. Apparently, this was due to the applicant lodging the wrong online claim form. The applicant subsequently lodged the correct online claim form. The injury that was claimed was, “Aggravation to Right Hip”. In response to a question in the claim form as to when the applicant first noticed his symptoms or injury, he responded on 30 November 2020. A further question asked when the applicant reported the injury or illness and he responded 22 June 2021.

    [18] The Claim for Compensation and Rehabilitation lodged by the applicant with the respondent on 30 July 2021 is at page 85 of the JTB.

14. Both in cross-examination and submissions the respondent placed significant emphasis on several of the entries that the applicant made in the “Safety Event/Investigation – Output Form”. It was contended that the recording of the Event Date of 30 November 2020 and the Event Time of 7.00 am was false. The submission even went so far as to say that the falsity of such representations was wilful. The falsity of the representations contained in the incident report was said to arise for three reasons. Firstly, because the applicant had experienced pain prior to 30 November 2020. Secondly, because the clinical note made by Dr Mansour of 30 November 2020 did not refer to the onset of any pain on that date but merely a complaint of pain on the previous day which had become worse when the applicant put his work boots on, therefore there was no incident occurring in the workplace. Thirdly, that the event or incident did not occur at 7.00 am on that day.

15. The Tribunal cannot accept that the representations contained in the incident report form were made by the applicant wilfully. There are several reasons for this. With respect to the time, the applicant gave evidence, which was not contradicted by any of the respondent’s witnesses, nor challenged in cross-examination, that the incident report form was created online and the time of 7.00 am automatically generated when the form was populated with the time. He also said that he had never filled out an incident report form before and he didn’t know what time to put in. He also said he could not insert another time, or the form would not let him do so, as the entry of 7.00 am was automatically generated as noted.

16. Concerning the date entered of 30 November 2020 the applicant explained in cross-examination that whilst he had been experiencing pain prior to that date, it would go away. As has been recorded earlier in these reasons the applicant stated that on that date the pain wouldn’t go away or subside. It was, as he put it, the first time he experienced a continuous problem with the pain. This evidence is accepted by the Tribunal. It will be recalled it was in this context that he consulted Dr Mansour on 30 November 2020. The Tribunal accepts that in completing the incident report form, bearing in mind that the applicant is a layman, his natural response was to include the date that he first experienced continuing pain symptoms. Therefore, the representations concerning the Event Date made by him were not false, and to the extent that criticism can be levelled at him that he had experienced intermittent pain in his right hip prior to that date and should have made representations to that effect in the workers’ compensation claim form, any misrepresentation was not made by him wilfully.

17. Similar submissions were advanced concerning the applicant’s response to “Section 5: Similar injuries/illnesses” of the Claim for Compensation and Rehabilitation completed by the applicant. That section contained a question, “Have you ever experienced the same, or a similar condition, injury or illness, work-related, or otherwise?” The applicant’s response was to cross the box, “No”. In cross-examination it was put to the applicant that because he had experienced pain in his right hip prior to 30 November 2020 that the answer “No” to that question was clearly false.

18. The applicant, to his credit, conceded that considering how it was put to him he would have to answer that was so. However, he did repeat that it was on that date that he first experienced continuing pain symptoms in his right hip. He readily conceded that he had experienced intermittent pain in his right hip prior to that date and stated that, on reflection, he might have misread (or the Tribunal infers possibly misunderstood) the question posed in that part of Section 5 of the workers’ compensation claim form.

19. Once again, the Tribunal accepts the applicant’s explanation concerning why he completed this section of the workers’ compensation claim form as he did. First and foremost, it should be repeated that the catalyst for this claim by the applicant was the fact that he had received advice from a medical specialist, Mr Jain, that the activities he performed in the workplace had significantly contributed to the aggravation of his right hip condition. The advice that he received from Mr Jain had as its genesis the initial consultation with Dr Mansour on 30 November 2020 when the applicant first experienced continuous right hip pain that did not subside or stop as it had in the past. A series of investigations into the cause of the continuous hip pain then followed. These investigations included taking x-rays, an ultrasound and an MRI. There were subsequent referrals concerning his hip pain to medical specialists, Dr Locke and Mr Jain. In the applicant’s mind the defining event occurred on 30 November 2020. It is perfectly understandable that the applicant, a layman, probably not expecting almost two years later to be giving evidence in the witness box on the topic, would have thought in all the circumstances that because it was the first time he experienced continuous pain in his right hip, he had not ever experienced the same, or a similar condition, work-related, or otherwise. To that extent the representation contained in Section 5 made by the applicant is true. Therefore, once again to the extent that the representation made by the applicant in Section 5 of the workers’ compensation claim form is false, such representation was not made by the applicant wilfully, consciously or deliberately. It was in all the circumstances an excusable oversight or misunderstanding on his part.

20. With respect to the hip condition, an initial determination in which liability was denied was made on 21 September 2021.

21. The applicant consulted Dr Mansour on 10 November 2021 concerning both his right hip and left knee pain. Dr Mansour issued the applicant with a medical certificate limiting his working hours to three consecutive days per week.

22. With respect to the left knee condition an initial determination denying liability was made on 6 April 2022.

23. The applicant, via his lawyers, sought a reconsideration of the initial determinations made with respect to the hip condition and the left knee condition. The reconsideration of those determinations continued to deny liability under the relevant provisions of the SRC Act. It is from each of those reviewable decisions that the applicant has brought these matters to this Tribunal.

THE MEDICAL EVIDENCE

Dr Mansour

1. Dr Mansour at all material times was the applicant’s treating general practitioner. There was in evidence a report prepared by him for the applicant’s solicitors dated 11 May 2022.[19]

   [19] The report of Dr Mansour of 11 May 2022 is at page 38 of the JTB.

2. That report recorded that Dr Mansour was first contacted by the applicant on 30 November 2020. The main issue at that time was described as right thigh pain which got worse once the applicant put his work shoes on. The applicant subsequently attended for review, observing some improvement but pain persisting. An x-ray was undertaken which showed mild osteoarthritis in his right hip.

3. He also recorded that the applicant returned on 30 December 2020 with respect to the same problem. As mentioned at paragraph 45 of these reasons, an ultrasound was undertaken which revealed Trochanteric bursitis with gluteal partial thickness tears together with Rectus femoris insertion al tendinosis with a possible partial tear.

4. As mentioned at paragraph 46 of these reasons, Dr Mansour then recorded that the applicant requested to see Dr Locke who arranged an MRI of the right hip joint of the applicant. That medical image revealed appearances of severe degenerative changes associated with a degenerative labral tear of the anterior superior labrum of the right hip joint. A referral was then made to Mr Jain for an orthopaedic opinion.

5. Following a complaint of left knee pain on 29 October 2021, an x-ray showed mild medial compartment and lateral patellofemoral joint osteoarthritis.

6. Dr Mansour then expressed the opinion that the applicant’s work-related activities contributed to the aggravation and functional restriction in his right hip. He also agreed that it contributed to the left knee pain experienced by the applicant due to an antalgic gait as a result of right hip pain and long hours on his feet walking on a concrete floor. He concluded with a diagnosis that the applicant was suffering severe degenerative changes associated with a degenerative labral tear of the anterior superior labrum of the right hip joint. He stated that the applicant would need a total right hip replacement.

7. When in the witness box, Dr Mansour explained that the applicant had been his patient since July 2018. His clinical notes were also in evidence. The contents of his report of 11 May 2022 were confirmed. He stated that he had not seen the applicant prior to 30 November 2020 for any hip pain. An examination of his notes for that day revealed that the applicant complained of pain on his right thigh and had massage which helped him. Further, the applicant informed him that as soon as he put his working shoes on it started to hurt more. There was a soft and non-tender right calf.

1. The Tribunal also observes that Dr Ghan did not, in response to the Supplementary Report of Mr Moaveni of 22 December 2022, produce any other literature from his own research that reached a different conclusion to those articles referred to in that report. If there was a body of medical opinion that disagreed with the basic thrust or tenor of those articles produced and referred to by Mr Moaveni, one would have expected Dr Ghan, as a highly qualified medical expert, not to mention clearly an experienced medico legal expert, to have referred to them and produced them to the Tribunal for its consideration. This is another factor relied upon by the Tribunal in preferring the opinions expressed by Mr Jain, Mr Moaveni and Dr Mansour.

2. Another reason emerges from the evidence of both Mr Jain and Mr Moaveni concerning the literature. As observed earlier, Mr Jain, when confronted with Dr Ghan’s evidence concerning the relative risk factor of 1.0 with exposure of heavy lifting for less than 15 years, carefully explained why he disagreed with this reference in Dr Ghan’s report. Mr Jain explained that such an opinion expressed by him was based on only one study, and one cannot base a conclusion on one study alone. Mr Moaveni, in his evidence, also disagreed with that aspect of Dr Ghan’s evidence on the grounds that he considered he had taken one sentence, or one part, of that study and concentrated on it. The Tribunal agrees with these opinions expressed by both Mr Jain and Mr Moaveni. In his evidence, Dr Ghan did not adequately explain why, having discreetly referred to one finding in one learned article, he did not agree with the remaining observations or opinions expressed in the remaining portions of that article and, of course, the other articles which were referred to in Mr Moaveni’s Supplementary Report. Those articles were in evidence before the Tribunal and their provenance was not contested. It is because of this selective reference to a discrete portion of only one of the articles that were in evidence before the Tribunal, and considered by it in their entirety, that it also prefers the evidence again, of Mr Jain, Mr Moaveni and Dr Mansour.

3. Reference should be made to Dr Mansour’s evidence. The respondent in closing submissions contended not much weight should be given by the Tribunal to the evidence of Dr Mansour, principally because he is a general practitioner. It was contended because there were complex issues of causation it should prefer, or perhaps more accurately, accept the evidence of the specialist orthopaedic surgeons. Whilst there is some force in this contention, the Tribunal does not find it appropriate to place limited weight on Dr Mansour’s evidence. There are several reasons for this. It was apparent that he is an experienced country general practitioner who has treated many patients with conditions similar to those experienced by the applicant. When he was tackled in cross-examination about his expertise (it was put to him that a general practitioner is not in a better position than, for instance, a specialist) in diagnosing and treating such conditions as those experienced by the applicant in his right hip and left knee he responded, as noted earlier, that a general practitioner is the “first line who do the majority of the work”. He explained from the number of patients that he had seen over his years of practice he was able to diagnose the conditions and express an opinion as he did concerning their cause. Additionally, with some force and effect, he also contended that the specialist, Mr Jain, agreed with him. Finally, the Tribunal should also observe that it found Dr Mansour to be a fair and credible witness who did not give his evidence in a way that was acting as an advocate for the applicant, coloured, exaggerated or otherwise embellished. He presented as a thorough professional expressing a genuinely held professional opinion as to the diagnosis and cause of the applicant’s right hip and left knee conditions, having seen the applicant on several occasions over some considerable time. The clinical notes of such consultations were in evidence before the Tribunal, the accuracy of which was not challenged. Such professional opinion was derived from his qualifications and years of experience as a general practitioner.

4. As for the contribution that the applicant’s weight may have made to the aggravation of his right hip osteoarthritis, once again, the Tribunal prefers the evidence of Mr Jain and Mr Moaveni. It does so because both those experts did not discount it as a factor but explained why they considered the demanding physical activities undertaken by the applicant in the respondent’s workplace as more likely than not to have aggravated the applicant’s right hip and left knee osteoarthritis conditions, rather than his weight condition. Additionally, Mr Moaveni used the colloquialism that “the jury was out” on the issue. However, he did not discount it as a factor, but considered that the nature of the duties that the applicant was undertaking was the significant contributing factor. Further, with respect to the applicant’s weight, Mr Moaveni explained that he disagreed with Dr Ghan’s analogy to one trying to walk around with a suitcase strapped to their stomach because weight on one’s “tummy” has a different effect to weight that one carries, particularly in the context of aggravating hip osteoarthritis.

5. There is another reason why the Tribunal prefers the evidence of Mr Jain and Mr Moaveni rather than Dr Ghan. There was a passage in his cross-examination where specific parts of Mr Jain and Mr Moaveni’s evidence were put to him. That evidence concerned their reference to aggravation and acceleration of the applicant’s right hip condition caused by the workplace conditions experienced by him. When asked to respond, Dr Ghan merely stated, “Both gentlemen are entitled to their opinion”. He did not proceed to answer the question in a way that explained why he disagreed with their respective opinions. One would have expected him to do so. Both Mr Jain and Mr Moaveni did, at all times, explain how they reached the opinions they did and why they disagreed with the conclusions of Dr Ghan. However, in fairness to Dr Ghan in other parts of his evidence, he did emphasise constitutional factors and the applicant’s weight, including his BMI.

6. The legal test for “aggravation” has been well settled. As was explained by Mortimer J (as she then was) in Comcare v Reardon, the term “aggravation” connotes an ailment which has been “made worse” and has not simply “become worse”.[31] It is a different concept to an underlying disease running its course which will not constitute an “aggravation” within the meaning of section 5B of the SRC Act.

   [31] (2015) 148 ALD 356, 365 [34].

7. The observations of Finkelstein J in Tippett v Australian Postal Corporation also warrant mention in this context.[32] He noted that an injury will be aggravated if the experience of the injury is increased or intensified. It was also observed by him that pain is the most common symptom of an injury. If the pain arising from an underlying condition is aggravated, that is increased or intensified, as a result of an employee’s employment, then the employee will have suffered a compensable injury. The Tribunal concludes that the applicant has undergone such an experience in this case with respect to his right hip and left knee.

   [32] (1998) 27 AAR 40.

8. By reason of the Tribunal accepting the evidence in particular of Mr Jain and Mr Moaveni (let alone Dr Mansour) that the applicant’s right hip and left knee osteoarthritis conditions were significantly contributed to, or made worse, by the tasks he had undertaken during his employment with the respondent as a night shift supervisor in its Bendigo Delivery Centre since October 2015, it finds that there was an aggravation of those conditions within the meaning of section 5B of the SRC Act. Therefore, the respondent is liable to the applicant under section 14 of the SRC Act for those injuries.

Does the exclusion contained in subsection 53(1) of the SRC Act apply?

1. The respondent submitted that if the applicant’s right hip and left knee conditions are an injury within the meaning of the definition contained in the SRC Act, then liability should be excluded by reason of him failing to comply with the requirement to give notice of the injury to it as soon as practicable after he became aware of such injury as required by subsection 53(1) of the SRC Act.[33]

   [33] See paragraphs 18 to 23 of the respondent’s Statement of Facts, Issues and Contentions dated 20 January 2023.

2. Given that the SRC Act is beneficial legislation, it has been held that a broad, generous and practical interpretation should be made which is consistent with its objects and purpose.[34] In this setting, it has also been observed that the likelihood that laypeople of differing levels of education, differing levels of medical advice and where applicable, differing levels of legal advice (where indeed in most cases they would not have any), should be taken into account.

   [34] See, eg, Abrahams v Comcare (2006) 93 ALD 147, 152 [18].

3. Earlier in these reasons it has been recounted how the applicant only became aware of the fact that his hip and knee osteoarthritis were work-related when he received the advice of Mr Jain on 21 June 2021. It will also be recalled that Mr Jain issued the applicant with a medical certificate on the same day stating that he was unfit for work for four days, due to severe hip pain inhibiting his ability to walk and perform his usual daily activities. The applicant moved promptly to inform Mr Wilson and Mr McGavock that he had received such advice that his right hip and left knee conditions were work-related when he saw Mr Jain on 21 June 2021. The Tribunal is satisfied that in the meeting the applicant had with them on or about 23 June 2021, notice of the injury was given. It was clearly given as soon as reasonably practicable after he became aware that it was work-related.

4. Soon after the meeting that the applicant had with Mr Wilson and Mr McGavock on or about 23 June 2021, he lodged the incident report on 25 June 2021. Given the short timeframe between the lodgement of that report and the meeting that the applicant had with them, if the notice he gave them during the meeting did not satisfy the requirements of subsection 53(1) of the SRC Act, the Tribunal is satisfied that lodging the incident report form certainly did.

5. In applying and construing subsection 53(1) of the SRC Act, it has been held that if an appropriate officer of the relevant instrumentality is made aware at an appropriate time of the injury and the circumstances in which it was suffered or contracted, the respondent agency and/or the Tribunal standing in its shoes should be slow to hold that a claim for compensation arising from such injury should fail because section 53 has not been complied with to the letter.[35]

   [35] See, eg, Re Tierney and Reserve Bank of Australia [1988] AATA 507, [6].

6. The Tribunal considers that the application of subsection 53(1) of the SRC Act must be approached as the authorities suggest one should when applying beneficial legislation. It should also be applied with a degree of realism. As noted above, the applicant is a layman and he only received definitive medical advice from Mr Jain on 21 June 2021 that undertaking the duties he did at work had aggravated his right hip and left knee osteoarthritis. The Tribunal has accepted the applicant’s evidence that he thought the condition and all the pain that he was experiencing would be treated and go away. Once he found out to the contrary from Mr Jain, he took immediate steps when armed with a medical certificate from him to notify his immediate superiors, lodge the incident report and subsequently the workers’ compensation claim form. In all circumstances, therefore, the Tribunal considers that the exclusionary provision in subsection 53(1) does not apply.

Does the exclusion contained in subsection 7(7) of the SRC Act apply?

1. Further, the respondent contended that the representations made by the applicant in “Section 5: Similar injuries/illnesses” of the workers’ compensation claim form that he had not ever experienced the same or a similar condition, injury or illness, work-related or otherwise, were false and were made wilfully. Therefore, the respondent contended that the applicant is precluded from claiming compensation for his right hip and left knee injuries by reason of the exclusionary provision contained in subsection 7(7) of the SRC Act.[36]

   [36] See paragraphs 24 to 29 of the respondent’s Statement of Facts, Issues and Contentions dated 20 January 2023.

2. The Tribunal cannot accept this contention. It refers to and repeats the consideration and findings made above at paragraphs 74 to 76 of these reasons that the representations made by the applicant in response to the question asked of him in “Section 5: Similar injuries/illnesses” of the Claim for Compensation and Rehabilitation form completed by him, were true. If to the extent that such representations made by the applicant in that section of the workers’ compensation claim form were false, such representations were not made by the applicant wilfully, consciously or deliberately. Similarly, for these reasons the Tribunal finds that the exclusion contained in subsection 7(7) of the SRC Act does not apply.

CONCLUSIONS ON THE ISSUES

1. Given the reasons aforesaid the Tribunal will address the specific issues identified earlier.

2. By reason of the foregoing the Tribunal concludes that the applicant suffered from a pre-existing ailment of the right hip prior to 30 November 2020. Such ailment being severe osteoarthritis.

3. The Tribunal finds that the applicant suffered from severe osteoarthritis of his right hip on 30 November 2020. The Tribunal finds that the ailment of severe osteoarthritis of his right hip was contributed to, to a significant degree, by reason of his employment with the respondent.

4. Further, the Tribunal determines that liability for the injury, being severe osteoarthritis of his right hip, is not excluded by reason of subsection 53(1) of the SRC Act.

5. Further, the Tribunal concludes that the applicant is not precluded from claiming compensation for an injury by reason of the operation of subsection 7(7) of the SRC Act.

6. The Tribunal concludes that the applicant is suffering from an ailment affecting his left knee, being left knee arthritis. It concludes that the aggravation of that ailment arose out of the compensable right hip injury as aforesaid.

ORDERS

1. As a result of the foregoing reasons the Tribunal considers that the correct and preferable decision is to make orders in the following form.

2. The decisions under review, dated 25 October 2021 and 16 May 2022, are set aside and in substitution it is decided as follows:

   (a)That the respondent is liable under section 14 of the SRC Act for the applicant’s claimed injuries identified as:

   (i)“aggravation of osteoarthritis of the right hip” with the date of injury deemed to be 30 November 2020; and

   (ii)secondary “left knee pain” with the date of injury deemed to be 29 October 2021.

   (b)Pursuant to subsection 67(8) of the SRC Act, the respondent is liable to pay the applicant’s reasonable party/party costs and disbursements of the applications for review, to be agreed, or in the absence of agreement to be taxed by the Tribunal.[37]

   [37] These form of orders were agreed to by the parties in a signed minutes of proposed orders provided to the Tribunal on 14 June 2023.

208.    I certify that the preceding 207 (two hundred and seven) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member

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

Associate

Dated: 10 July 2023

Dates of hearing:

7-9 June 2023

Counsel for the Applicant:

Solicitors for the Applicant:

Ms Cassie Serpell

Angela Sdrinis Legal

Counsel for the Respondent:

Mr Roy Seit

Solicitors for the Respondent:

Australian Postal Corporation