Higgerson and Prosegur Australia Pty Ltd (Compensation) - [2023] AATA 115

Higgerson and Prosegur Australia Pty Ltd (Compensation) [2023] AATA 115 (2 February 2023)
Division:GENERAL DIVISION
File Number(s): 2020/4266; 2021/8735
Re:Craig Higgerson
APPLICANT

AndProsegur Australia Pty Ltd
RESPONDENT

Decision
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:2 February 2023
Place:Sydney

Each of the decisions under review is set aside, and remitted to the Respondent with a finding that the Respondent is liable under section 12 of the Safety, Rehabilitation & Compensation Act 1988 (Cth) in respect of the injury sustained on 16 October 2019.
..................................[SGD]......................................
Emeritus Professor P A Fairall, Senior Member
Catchwords
WORKERS COMPENSATION – Self-licenced entity – Prior injury – Osteoarthritis – Whether Applicant suffers from ailment – Whether Applicant suffers from aggravation of prior injury – Whether employee entitled to compensation pursuant to s 12 or s 16 in respect of injury – Concurrent evidence – Inconsistency in medical evidence
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation & Compensation Act 1988 (Cth)
Cases
Commonwealth Banking Corporation v Percival (1988) 20 FCR 176
Commonwealth v Beattie (1981) 35 ALR 369
Ellison v Comcare [2022] FCA 95
Mellor v Australian Postal Corporation [2009] FCA 504
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468; [2016] HCA 19
Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537
Tippett v Australian Postal Corporation [1998] FCA 335
Walters and Comcare (Compensation) [2021] AATA 14
Wuth v Comcare [2022] FCAFC 42
Secondary Materials
Notice of Variation of Licence – Prosegur Australia Pty Limited (No.32 of 2021): Gazette C2021G00504 at [7] < et al., Australian Financial Review, ‘Chubb Security Services sold to Spain’s Prosegur’, (Web Page, 16 December 2013) < FOR DECISION
Emeritus Professor P A Fairall, Senior Member
2 February 2023

Mr Higgerson commenced employment with Brambles Security Services Ltd (Brambles) as an armed security guard in 1998, and worked continuously in that role until 2019. His specific role was to operate as the security guard within an armoured vehicle (AV). His employment transitioned to Chubb Security Services (Chubb), when it purchased the Security Armed Guard Division of Brambles in June 2000, and to Prosegur Australia Pty Ltd (PAPL), the Respondent in these proceedings, when it acquired Chubb on 16 December 2013.[1]
[1] Thompson et al., Australian Financial Review, ‘Chubb Security Services sold to Spain’s Prosegur’, (Web Page, 16 December 2013) <>
PAPL is a self-insured corporation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act).[2] Under the terms of its licence, it is not authorised to accept liability for injuries occurring outside the period covered by the licence, which is from 1 July 2007 and ending on 30 June 2025.[3]
[2] PAPL’s self-insurance licence was granted by the Safety, Rehabilitation and Compensation Commission on 25 June 2007, with a commencement date of 1 July 2007. See Notice of Variation of Licence – Prosegur Australia Pty Limited (No.32 of 2021): Gazette C2021G00504 at [7]
[3] Clause 7 of the Licence states:
Part 3 – Scope of Licence
Scope of licence – acceptance of liability
7. The Licensee is authorised to accept liability to pay compensation and other amounts under the SRC Act in respect of all injuries, loss or damage suffered by, or in respect of the death of, any of the employees of the Licensee where such injuries, loss, damage or death occur within the period of this licence.
Clause 6 states.
Period of licence
6. Subject to the SRC Act, this licence is for the period commencing immediately after midnight (Australian Eastern Daylight Time) on 1 July 2007 and, in accordance with the most recent extension, ending at the end of 30 June 2025 (Australian Eastern Standard Time) (the period of this licence).
On 1 April 2002, Mr Higgerson reported a fall down the rear steps of an AV while carrying two heavy coin boxes.[4] The insurer accepted liability for his injury and paid for various medical treatments under NSW WorkCover.[5] The discomfort in his knees increased steadily. Dr Tony Isaac, of the Kotara Family Practice, referred him to Dr David Gill, an orthopaedic specialist.[6] In 2008, Dr Gill performed an arthroscopy to clear the knee, and did so again in 2012.[7] File notes from July 2011,[8] and June 2012,[9] confirm that he had developed osteoarthritis of the left knee.
[4] See Compensation Claim Form: T26, 90-91 (110-111), 93(113).
[5] Hearing Book, 21, 131, 354.
[6] Hearing Book, 339, 369.
[7] Dr James Bodel, Consultant Orthopaedic Surgeon, Medical Report, 24 February 2020: T44, 293 (268), 297 (272).
[8] Patient Health Summary, Kotara Family Practice, printed 18 September 2020. Hearing Book, 6, 165, 196.
[9] Letter dated 25 June 2012 from Dr Gill following arthroscopy operation: T16, 60 (41)
By 2019, his right knee was giving him trouble. In July 2019, Dr Gill identified right knee arthritis and a possible medial meniscus tear in the left knee.[10] Mr Higgerson asked whether his right knee arthritis was related to the original 2002 left knee injury. Dr Gill said there was unlikely to be a connection between one knee and the other.[11]
[10] Hearing Book, 286.
[11] Hearing Book, 288.
On 4 August 2020, Dr Isaac recorded a consultation file note, noting:
‘Insurer not acknowledging injury ??? Unfortunately, Craig has had to pursue legal action to defend his rights. I am confident this is a exacerbation of previous known work related injury that the insurer accepted liability for. I have never seen an insurer behave this way!!!’[12]
[12] Surgery consultation, 4 August 2020: Hearing Book, 57.
He was struggling to pay for medical treatment, and Dr Isaac defrayed some medical expenses.[13]
[13] Hearing Book, 58.
THE INITIAL CLAIM AGAINST PAPL
On 8 October 2019, Mr Higgerson made a claim under the SRC Act, on the basis that the pain in his knees was related to his 2002 injury. On 8 October 2019, he signed a claim form.[14] He stated that the injury was “Pain 24 HR” and for “Part(s) of the body injured”, he wrote “Knee”.[15] On 30 October 2019, at the request of the Respondent, he was interviewed by Dr Peter Steadman, an orthopaedic surgeon, who prepared a report, which is dated 27 November 2019.[16]
[14] Claim PSG0346: T26, 88; T27, 95
[15] T26, 91.
[16] T41, 273 (248).
Dr Steadman reported that Mr Higgerson had a painful left knee and that the condition started a long time ago, in 2002, likely when he had an injury, and that he now had “consequential arthritis”.[17] He noted that his condition had been deteriorating and he now had advanced left knee osteoarthritis, which was made worse by a “minor jar” (This was a reference to an incident, discussed below, that occurred on 16 October 2019).[18] His arthritis was never going to resolve and he would need a left knee replacement to manage his pain. The “left knee condition” was a continuation of the original injury from 2002.
[17] T41, 277 (252).
[18] T41, 278 (253).
On 23 December 2019, a delegate of the Respondent determined, on the basis of Dr Steadman’s report, that the claimed left knee condition was attributable solely to the injury sustained in 2002 while Mr Higgerson was working for Chubb. The nature of his employment with PAPL since he transitioned from Chubb neither caused, nor aggravated, his left knee condition. PAPL was not authorised to accept liability for the original injury, because it pre-dated the period covered by the self-insurance licence. His claim was therefore rejected.
The Applicant has not applied for review of the Determination made by PAPL on 23 December 2019. The Tribunal was informed by counsel in these proceedings that there was no application relating to the 23 December Determination.[19]
[19] Transcript, 17 June 2022, at 97; 168.
THE INCIDENT ON 16 OCTOBER 2019
On 16 October 2019, Mr Higgerson slipped while exiting the company’s AV, which was parked in Tumbi Umbi, New South Wales. He said that he felt immediate pain to his left knee. He visited the Kotara Family Practice in Newcastle the following day, and was seen by Dr Max Mollenkopf.[20] He was prescribed Mobic 15mg. In following days he was seen by several different doctors, including Dr Isaac and Dr Cumming. He was provided with incapacity certificates and placed on restricted duties and began to use up his entitlements. Surgery notes show that he was using analgesics during the day and Valium at night and that he was struggling to drive a manual car.
[20] Hearing Book, 49.
This incident gave rise to two applications for compensation under the SRC Act.
Claim No 1 – PSG 0360 – 2020/4266
On 5 February 2020, Mr Higgerson made a claim for hyperextension of left knee based on the 16 October 2019 incident.[21] On 27 March 2020, the Respondent rejected his claim. On 23 June 2020, the adverse determination was affirmed by Moray & Agnew Lawyers, the authorised review delegate. On 16 July 2020, his solicitor lodged an application with the Tribunal seeking review of the decision made on 23 June 2020.
[21] T42, 258 (283), 261(286).
Claim No 2 – PSG 0403 – 2021/8735
I interpose to note that on 19 April 2021, Ms Kerry Meier, the Newcastle operations manager, emailed Mr Higgerson to inform him that because of his lengthy absence from work, his ongoing employment was under review.[22] He replied that proceedings were on foot before the Tribunal. He expressed the hope that he could return to full-time duties soon.[23] The second claim referencing the 16 October 2019 incident was made the next day.[24]
[22] T59, 371. Ms Meier’s email, to which Mr Higgerson responded, is not in the materials before the Tribunal.
[23] T57, 366.
[24] T55, 357. PAPL reference PSG0403.
On 20 April 2021, he made a claim for “personal physical injury” occurring on 16 October 2019.[25] Under the heading “What tasks were you performing?” he stated “Employed as armoured guard. Exiting armoured vehicle. Also rely upon the nature and conditions of employment in carrying heavy bags of coin”.[26]
[25] T55, 358.
[26] T55, 359
In the corresponding incident report, he stated:
“Slipped out of 1167 (very high step). My already injured knee hyperextended rearwards causing immediate pain. Can’t bend knee under weight.”[27]
[27] T28, 103 (123).
He also stated: “Have had 2 arthroscopies on knee. Saw specialist 5 weeks ago. Knee replacement needed”.[28] He was asked to list any conditions that “influenced/caused” the incident and said “previous injury”.
[28] T28, 104 (124).
The Respondent acknowledged the second application on 29 April 2021,[29] and on 10 May 2021, his claim was rejected.[30] The delegate stated:
“8.       From review of your claim form, I understand you now contend that your left knee condition arose due to the nature and conditions of your employment as an Armoured Vehicle Operator with Prosegur from 1998 to 2020...
11.      I confirm that I have reviewed your response to Ms Meier in respect to your employment with Prosegur.
12.      From review of the available medical evidence, I am satisfied that you suffer from a left knee condition.
13. However, I note that in order to constitute a "disease" within the meaning of section 5B of the SRC Act, I must also be satisfied, on the balance of probabilities as opposed to possibilities, that your left knee condition has been contributed to, to a significant degree by your employment with Prosegur.
14.      Having regard to the available medical evidence, I am of the view that your claimed left knee condition is a direct consequence of the injury sustained to your left knee injury in 2002. I note that liability has been accepted for this injury under the state workers' compensation scheme. To this end, any left knee condition that was sustained in 2002, pre-dates Prosegur's selfinsurance licence under the Commonwealth workers' compensation scheme.
15.      Therefore, I am of the view that the weight of the evidence fails to establish that your left knee condition has been contributed to, to a significant degree, by your employment with Prosegur.” [31]
[29] T58, 367.
[30] T59, 369.
[31] T59, 370.
On 8 July 2021, his solicitor asked for reconsideration.[32] He provided an additional report (dated 27 August 2021) from Dr James Bodel, a senior orthopaedic surgeon.[33] Dr Bodel stated:
“I am satisfied that the episode of injury on 16 October 2019 has caused further problems with the left knee, and aggravation of the underlying degenerative change in the right knee and also the hips and back, and there is a causal link between that episode and the nature and conditions of his work and the deterioration over time. This is based on the clinical presentation presented at the time of my assessment.”[34]
[32] T61, 374.
[33] T64, 386. Dr Bodel had provided two reports for the first claim.
[34] T64, 389.
On 20 September 2021, his employment was terminated by PAPL. The termination letter stated:
“On the basis of information available to us, it is clear that you do not currently have the capacity to return to your pre-injury role as an Armoured Vehicle Operator and are unlikely to be able to do so for the foreseeable future. No adjustments have been identified that would enable you to perform the inherent requirements of your pre-injury role.”[35]
[35] T65, 391.
On 27 October 2021, the adverse decision of 10 May 2021 was affirmed by Moray & Agnew Lawyers, on second review. The delegate stated:
“24.     Having regard to the left knee pathology, I am of the view that the claimed condition is to be assessed as a disease, for the purposes of section 5B. …
27.      I have relied on the opinion of Dr Steadman, which is that he does not consider your work to be a significant contributing factor and suggested your left knee condition is a continuation of the injury you suffered in 2002.
28.      I note that Dr Bodel, in his further report, stated that your work since 2012 has caused further aggravation of the underlying degenerative process and that it has accelerated the progression of the arthritic process in your left knee. However, in his earlier report, Dr Bodel stated the event on 16 October 2019 did not cause any acceleration of the degenerative process and stated that your ongoing work has caused aggravation to your right knee and did not comment on whether the nature of work aggravated your left knee condition.”
The review officer concluded, at [39], that the left knee condition was a continuation of the injury suffered by the Applicant in 2002, “as well as the progression of a constitutional degenerative process”.[36]
[36] T67, 398.
On 17 November 2021, Mr Higgerson’s solicitor lodged an application with the Tribunal seeking review of the decision of 27 October 2021. This was in addition to the application lodged on 16 July 2020, seeking review of the decision made on 23 June 2020.
THE HEARING – 16 AND 17 JUNE 2022
The applications to the Tribunal were linked by the Sydney Registry and consequently heard together by videoconference on 16 and 17 June 2022.
MATERIALS
Certain documents were provided with an Exhibit Number, as follows:
·Exhibit A – Statement of Craig Arthur Higgerson, dated 10 October 2020.
·Exhibit B – Letter from Cardillo Gray Partners (the Applicant’s solicitors) to Dr James Bodel (orthopaedic surgeon), dated 5 February 2020.
·Exhibit C – Determination by the Respondent, dated 23 December 2019.
·Exhibit D – Applicant’s Statement of Facts, Issues and Contentions (ASFIC) dated 15 February 2022.
·Exhibit E – Respondent’s Statement of Facts, Issues and Contentions (RSFIC) dated 15 March 2022.
·Exhibit F – T-documents in application 2021/8735.
·Exhibit G – T-documents numbered T1 to T3 in application 2020/4266.
·Exhibit H – Letter from the Applicant’s solicitors to Dr Bodel dated 19 February 2020.
·Exhibit I – Hearing Book (474 pages) filed and served by the Respondent. This contained Summonsed Records from the Kotara Family Practice, Dr David Gill and record from iCare Legal, manager, WorkCover claims.
After the hearing, counsel provided extensive written submissions, which have been considered in these reasons. The submissions were received as follows:
·Applicant’s submissions: 31 July 2022 (17 pages)
·Respondent’s submissions: 22 August 2022 (35 pages)
·Applicant’s reply: 31 August 2022 (3 pages).
THE EVIDENCE
Mr Higgerson was cross-examined by counsel for the Respondent, by Mr Woulfe, at some length. This process traversed his entire medical history from 2002. Both during and after the hearing, Mr Woulfe sought to cast doubt on Mr Higgerson’s veracity in pursuing these various claims, focussing specifically on the timing of each claim. I draw no such inference. I am satisfied that Mr Higgerson was for the most part a reliable witness, subject to the inevitable failings one might have when quizzed about events that happened many years ago. He gave evidence in a forthright and open manner.
Doctors Gill, Steadman and Bodel were called to give evidence and did so concurrently. In accordance with the Practice Direction dealing with Concurrent Evidence, the Tribunal was invited to approve this arrangement and settle the form of the questions to be put to the witnesses. The following questions were approved and for convenience I have inserted the answers (underlined) given by the three doctors. Their opinion was unanimous.[37]
[37] Transcript, 17 June 2022, 129 et seq.
“Both proceedings
(a) What is the diagnosis of the condition (if any) affecting the applicant’s left knee (the “diagnosed condition”)?
Osteoarthritis of the left knee
(b) Was the diagnosed condition caused by the claimed hyperextension of the applicant’s left knee which allegedly occurred when he stepped backwards out of an armoured truck in his employment at approximately 9:30 am on 16 October 2019?
No
Without limiting the matters which you consider in answering this question, please address whether the diagnosed condition was the continuation and/or result of the injury the applicant suffered in his employment on 1 April 2002 when he slipped down steps while carrying approximately 40-50 kg of coin boxes and jarred/twisted the left knee.
No
(c) Was the diagnosed condition made worse by the claimed hyperextension of the applicant’s left knee which allegedly occurred when he stepped backwards out of an armoured truck in his employment at approximately 9:30 am on 16 October 2019?
There is no medical evidence of any significant injury on 16 October 2019
Without limiting the matters which you consider in answering this question, please address whether the diagnosed condition was the continuation and/or result of the injury the applicant suffered in his employment on 1 April 2002 when he slipped down steps while carrying approximately 40-50 kg of coin boxes and jarred/twisted the left knee.
There is no medical evidence of any significant injury on 16 October 2019
2021/8735
(d) In addition to the claimed hyperextension incident mentioned at questions 2 and 3 above, was the diagnosed condition caused by the nature and conditions of the applicant’s employment in carrying bags of coins in the period from 2012 to 16 October 2019?
No
Without limiting the matters which you consider in answering this question, please address whether the diagnosed condition was the continuation and/or result of the injury the applicant suffered in his employment on 1 April 2002 when he slipped down steps while carrying approximately 40-50 kg of coin boxes and jarred/twisted the left knee.
No
(e) In addition to the claimed hyperextension incident mentioned at questions 2 and 3 above, was the diagnosed condition made worse by the nature and conditions of the applicant’s employment in carrying bags of coins in the period from 2012 to 16 October 2019?
Minimal
Without limiting the matters which you consider in answering this question, please address whether the diagnosed condition was the continuation and/or result of the injury the applicant suffered in his employment on 1 April 2002 when he slipped down steps while carrying approximately 40-50 kg of coin boxes and jarred/twisted the left knee.
Minimal.”

Significantly, the three specialists agreed that there was no medical evidence of an injury occurring on 16 October 2019. Dr Steadman referred to this, somewhat pithily and I think inappropriately, as the “party line”. Dr Gill went further. The x-rays taken in 2019 and 2020 showed not merely an absence of medical evidence of physical injury, but “that there was medical evidence that there was no injury”.[38] The 16 October 2019 incident was, in relation to the left knee, bracketed by the x-rays taken in July 2019 and the MRI taken much later on 8 April 2021. Dr Bodel cautioned that he had not actually seen the x-rays, just read the reports.[39]
[38] Transcript, 17 June 2022, 154.
[39] In discussing the left knee, Dr Bodel referred to X-rays taken in February 2019, although the X-rays taken on that date did not include the left knee: see T20, 76 (95). The left knee was X-rayed on 12 July 2019: see T23.
MEDICAL EVIDENCE CONTAINED IN PRE-HEARING REPORTS
It is useful to compare the oral evidence given by the doctors with their pre-hearing observations.
(a) Dr David Gill
Dr Gill’s various medical reports span the period from 2008 to 2021.[40] He performed arthroscopies on the Applicant’s left knee in 2008 and 2012.
[40] T5, T6, T7, T8, T10, T11, T12, T14, T15, T16, T25, T52.
On 21 May 2008, Dr Gill wrote to Dr Isaacs about the treatment he proposed.[41] He stated:
“I note the MRI scan which essentially shows that he has an ACL injury with cystic formation around it, and this is very suggestive of a more chronic problem. Indeed, the menisci are intact clinically. There is significant subchondral cysts in the mid-posterior medial tibial plateau, and I can see that there is cartilage lesions and loose cartilage coming off the medial femoral condyle.
I do notice the cyst in the ACL and that they are quite large, in fact 20mm at the back of the knee.
I feel that Craig probably has injured his ACL in January, 2002. At that time he has not injured his meniscus and hence has not had much more than subtle instability symptoms of the knee. He probably has damaged the medial articular cartilage of the medial tibial plateau/medial femoral condyle, and I think that it is an escalation in the symptoms from this area which is giving him the majority of his symptoms here. [Emphasis added]
I feel that there are a couple of things that we should and should not do: I think that reconstruction of the cruciate ligament (given that he has not had significant amounts of instability over the years) is certainly not in his best interests. I think that performing an arthroscope, remove the loose bodies, chondroplasty the loose cartilage of the femur and assess the menisci, and removing the cysts should give him an improvement in his knee function, and perhaps also an improvement in the bending of his knee.
Having said this, this would not return the knee to normal function. Once this is done we could consider options such as cortisone (I realise that a recent cortisone injection did not make much difference), Synvisc or otherwise may improve the function of his knee.
I will write to the insurance company and seek approval for this to be undertaken.”
[41] Hearing Book, 339, 369.
He performed an arthroscopy on 14 July 2008 and reported to Dr Isaac:
“We essentially found what we had expected from the MRI scan, but there was quite a few loose bodies which represented cartilage fragments, coming from the medial femoral condyle.
The medial femoral condyle changes were high Grade 3 and almost bone exposed. The tibial side was not as severe. Both needed some chondroplasties. The ACL certainly looked old, with no bleeding around the actual ACL consistent with having had an infection years ago. The lateral compartment was quite well preserved, but the patella femoral joint was somewhat more involved, and there were some areas which were high Grade 3 on the trochlear. The patella was Grade 3 on its inferior pole.”[42]
[42] T8, 50 (31).
He saw Mr Higgerson again on 28 October 2008 and reported to Dr Isaac that:
“[U]ltimately a replacement procedure will be necessary. However, this is not the best option in his current age group.”[43]
[43] See review notes, Dr Gill, 28 October 2008: T12, 54, (35).
He performed a second arthroscopy on 25 June 2012, and reported to Dr Isaac:
“We found (as expected) a medial meniscus tear on the background of quite an arthritic knee. There were many loose bodies. I debrided synovitic areas and hope that this procedure settles down his symptoms.
Craig is certainly very arthritic for a younger chap. He will come to need a joint replacement at some time in the future.”[44]
[44] Letter dated 25 June 2012 from Dr Gill following 2012 arthroscopy operation: T16, 60 (41).
His most recent report is dated 17 February 2021.[45] He observed that the Applicant had suffered persistent problems with the left knee since 2002, and had arthritis since at least 2012.
[45] T52, 335.
As to the accident of 16 October 2019, his assessment was muted. He had not seen the patient since 17 July 2019, and therefore “could not comment on an event that occurred some 3 months later”.[46] However, he would not be surprised “if a seemingly small event would have flared the chronic left knee problems”.[47]
[46] T52, 336-7.
[47] T52, 336-7.
(b) Dr James Bodel
At the request of Mr Higgerson’s solicitor, Dr James Bodel, a senior orthopaedic consultant, provided three reports, dated 24 February 2020,[48] 16 April 2021,[49] and 27 August 2021.[50] The first report was provided after the adverse Determination made by PAPL on 23 December 2019.
[48] T44, 293.
[49] T53, 350.
[50] T64, 386.
In his first report, he contextualised the October 2019 incident as follows:
“On this particular occasion his foot slipped off the step and he twisted and jarred the left knee. He went to see his local doctor. He continued on lighter duties. He was told that he needed to see Dr Gill again and he reported the matter at work. Unfortunately, an impasse has developed between Prosegur Australia Pty Limited, who are a self-insurer (under Comcare) and the original insurer, which is the GIO, for the previous employer, Chubb Security Services Pty Limited. He needs his treatment and cannot proceed with any treatment until the insurance companies decide who is liable.”[51]
[51] T44, 295 (270).
He also noted:
“l also note in your referral letter the mention of the definition in the Act (Comcare) defining injury as a disease suffered by an employee and that it is also the aggravation, acceleration, exacerbation and deterioration of that disease process. That is certainly the case in this circumstance with the injury that occurred in October 2019.[52] [Emphasis added]”
[52] T44, 297 (272)
Dr Bodel was of the medical opinion that the Applicant had “post-traumatic osteoarthritis in the region of the left knee which was instigated by a tear of the medial meniscus in that knee for which he has had appropriate treatment including two arthroscopies”.[53] The left knee injury began with the episode in 2002, and the incident on 16 October 2019 had probably caused some “additional structural damage in that abnormal knee and it has certainly caused an aggravation of the underlying pathology”.[54] The nature and conditions of his work was an aggravating factor for both knees. A prognosis was “guarded”, but within the next three to five years he would need total knee replacements in both knees.
[53] T44, 297 (272)
[54] T44, 297 (272).
Dr Bodel’s considered opinion was that the nature and conditions of his work since 2002 “caused aggravation, acceleration, exacerbation and deterioration of that disease process in the knees” and it was “certainly the case” that the incident of 16 October 2019 had done so.[55] Although he had only seen the radiology reports, and not the original x-rays from 2019 and 2020, the nature and condition of his employment was a prime factor.
[55] T44, 297 (272)
This was, he thought, self-evident. Mr Higgerson had an arthritic process in both knees. He was engaged in heavy work that required kneeling, squatting and a lot of climbing and carrying heavy objects. Over time this had caused aggravation, acceleration, exacerbation and deterioration of that disease process in both knees. In short:
“The nature and conditions of his work since the original injury in 2002 has caused aggravation, acceleration, exacerbation and deterioration of that disease process in the knees.”[56]
[56] T44, 298 (273)
In his supplementary report, dated 16 April 2021, he was asked:
“2. In view of the opinions expressed above, in your opinion would, Mr Higgerson have suffered an aggravation of his injury to his left knee by reason of the incident on the 16th October, 2019 and the nature and conditions of his employment prior to the 16th October, 2019 had it not been for the injury in 2002?”
Dr Bodel responded as follows:
“This is a difficult question. The event on 16 October 2019 has caused a further aggravation of the longstanding pathology in the left knee. It has probably not caused any acceleration of the degenerative process. There is no definite indication that there was additional structural damage as a result of that event.”[57]
[57] T54, 355.
In his further supplementary report, dated 27 August 2021,[58] he was asked the following question:
“4. In your previous report you expressed an opinion that the incident on the 16 October 2019, together with the nature and conditions of employment aggravated his right knee as well as his left knee. He now complains of increased symptoms in his right knee, his hips and lower back. In your opinion, is there a causal relationship between his injuries, the nature and conditions of his employment, his altered gate and the symptoms in his right knee, his hips and his lower back? If so, please give an explanation/s for coming to that/those opinions.”[59]
[58] T64, 386.
[59] T64, 389.
Dr Bodel responded as follows:
“I am satisfied that the episode of injury on 16 October 2019 has caused further problems with the left knee, and aggravation of the underlying degenerative change in the right knee and also the hips and back, and there is a causal link between that episode and the nature and conditions of his work and the deterioration over time. This is based on the clinical presentation presented at the time of my assessment.”[60]
[60] T64, 389.
(c) Dr Peter Steadman
Dr Steadman provided two reports. In his first report, dated 27 November 2019,[61] he stated that Mr Higgerson had a painful left knee and that the condition started a long time ago in 2002, likely when he had an injury, and that he now had “consequential arthritis”.[62] He noted that his condition had been deteriorating and was recently made worse by a “minor jar”.[63] He had advanced left knee osteoarthritis. This was never going to resolve and he was going to likely require a left knee replacement to manage his pain. He considered that his present condition was a continuation of the original injury from 2002.[64]
[61] T41, 273 (248).
[62] T41, 277 (252)
[63] T41, 278 (253)
[64] T41, 275 (250).
With regard to x-rays, he noted:
“No x-rays were available or arthroscopy photos from the past. Further radiology was requested which was subsequently performed with bilateral knee x-rays on 22.11.2019 at Hunter radiology. These x-rays show a degree of constitutional bilateral arthritis but the left knee has more significant medial compartment changes than the right of which the arthritis would be considered in the mild to moderate category. The significance of the medial compartment changes reflect upon the historical operation where a partial meniscectomy was performed and are known as the Fairbank changes which represented direct consequence of medical meniscectomy of the 2002 injury and its consequential operative interventions.”[65]
[65] T41, 276 (251)
In his second report, dated 20 March 2020, Dr Steadman commented on the impact of the Applicant’s injury on his right knee, which was now also sore.[66] He spoke to Mr Higgerson and conducted a clinical examination.[67]
[66] T47, 305 (280).
[67] T47, 308 (283)
Dr Steadman considered that Mr Higgerson suffered from bilateral medial compartment arthritis, and that while the prognosis was guarded, in essence his condition had deteriorated. However, the hyperextension incident on 16 October 2019 had not caused his knee condition.[68]
[68] T47, 310 (285).
He was asked whether the hyperextension incident (at this point wrongly identified as occurring on 29 January 2020) aggravated or worsened his left knee condition:
“a. If so, did this aggravation represent a worsening of the condition itself or just a temporary increase in pain?
Not in my opinion. I would accept that maybe this could cause a temporary increase in symptoms but the overall underlying problem is not related to a singular event or the consequence of subsequent activities and employment affecting either knee. (Emphasis added)
b. If the hyperextension on 16 October 2019 did cause an aggravation, has this aggravation ceased?
In my opinion it has ceased.
c. If the aggravation has not ceased, when do you reasonably expect this aggravation to cease?
Not applicable.”[69]
[69] T47, 311 (286).
INCONSISTENCIES IN THE MEDICAL EVIDENCE
The evidence given by Dr Steadman at the hearing was consistent with the views expressed in his earlier reports. The Respondent relies heavily on Dr Steadman’s opinion, which clearly did not support the hypothesis that the nature and condition of the Respondent’s workplace had accelerated the progression of the underlying disease.
This contrasted with the views expressed by Dr Bodel in his three reports. Dr Bodel stated, variously:
·“The nature and conditions of his work since the original injury in 2002 has caused aggravation, acceleration, exacerbation and deterioration of that disease process in the knees” (First Report). [70]
·“The event on 16 October 2019 has caused a further aggravation of the longstanding pathology in the left knee. It has probably not caused any acceleration of the degenerative process” (Second Report).[71]
·“I am satisfied that the episode of injury on 16 October 2019 has caused further problems with the left knee, and aggravation of the underlying degenerative change in the right knee and also the hips and back, and there is a causal link between that episode and the nature and conditions of his work and the deterioration over time” (Third Report).[72]
[70] T44, 298 (273)
[71] T54, 355.
[72] T64, 389.
At the hearing, Dr Gill stated firmly that the medical evidence did not support a finding that there had been any physical injury on 16 October 2019. Prior to the hearing, he said that he was reluctant to comment theoretically on the effect of the October incident. He said that he “would not be surprised if a seemingly small event would have flared the chronic left knee problems”.[73]
[73] T52, 336-7.
Doctors Bodel and Gill relied upon Dr Steadman’s analysis of the 2019 x-rays and MRI scans. It appears that neither had seen the x-rays taken in 2019, while Dr Steadman had access to them on his device and had refreshed his memory the morning of the hearing.
I note that the hips and right knee were x-rayed on 12 February 2019. Dr John Lewis reported:
“FINDINGS
There are tricompartmental degenerative changes, moderate in the medial compartment, but only minimal on the lateral and patellofemoral compartment. No loose bodies are identified, however there is a small suprapatellar joint effusion.
COMMENT
Osteoarthritic changes, moderate medially, with a small joint effusion.”[74]
[74] T20, 95; Hearing Book 344.
His left knee was x-rayed on 12 July 2019. The findings of Dr Rohan Sabhawal were as follows:
“FINDINGS
ADAM – X-RAY LEFT KNEE
Moderate OA is present at the tibiofemoral compartment and mild OA is present at the patellofemoral compartment. No joint effusion is identified. No acute fracture is identified.”[75]
[75] T23, 82 (102); T38, 238 (213); Hearing Book, 352.
The radiology report taken in November 2019 Report showed:
“REPORT
There are degenerative changes seen in the medial compartments and patellofemoral articulations. The degenerative changes in the medial compartment are more marked on the left side. There are no intra-articular loose bodies. There are small suprapatellar joint effusions.”[76]
[76] T40, 271 (246);
Unfortunately, this report does not unambiguously define the knee that had small joint effusions.
The doctors gave oral evidence that the radiology reports did not show any physical injury to the left knee, unfortunately, the imprecision in the November report was not picked up at the hearing. It is perhaps more correct to say that no physical injury could be clearly identified on the radiology reports alone.
I have previously referred to the MRI report that was prepared in April 2021. I infer from Dr Steadman’s evidence about this report that it did not show any escalation or further deterioration between the 2019 x-rays and the 2021 MRI. It showed that the left knee was worse than the right but said nothing as to whether that difference was attributable to the original 2002 injury alone, or reflected a further injury in 2019 or at some other time. It did not clearly indicate an identifiable change associated with the October 2019 incident.
LEGISLATION
Subsection 12(1) of the SRC Act provides:
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Section 16 provides:
(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
The definition of ‘employee’ is relevantly contained in subsection 5(1A) of the SRC Act, which provides:
(1A) For the purposes of paragraph (b) of the definition of employee in subsection (1), a person is taken to be employed by a licensed corporation if, and only if:
(a) a person performs work for that corporation under a law or a contract; and
(b) pursuant to that law or pursuant to the law that is the proper law of that contract, as the case may be, the person would, if that corporation were not a licensed corporation, be entitled to compensation in respect of injury, loss or damage suffered by, or in respect of the death of, the person in connection with that work.
The definition of ‘injury’ is contained in section 5A of the SRC Act includes:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
Section 5B of the SRC Act provides:
Definition of Disease:
(1) In this Act, disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.

Section 4 provides definitions of ‘aggravation’ and ‘ailment’ as follows:
“‘aggravation’ includes acceleration or recurrence.
‘ailment’ means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”.
Section 53(1) provides:
(1) This Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority:
(a) as soon as practicable after the employee becomes aware of the injury; or
(b) if the employee dies without having become so aware or before it is practicable to serve such a notice--as soon as practicable after the employee's death.
APPLYING THE STATUTORY FRAMEWORK
Section 12 of the SRC Act relevantly provides that Comcare is liable to pay compensation in respect of an “injury” suffered by an employee. The term “injury” is defined in section 5A as being either a “disease” or an “injury (other than a disease)” or an “aggravation of a physical or mental injury (other than a disease)”. “Disease” is defined as an “ailment” or “the aggravation of such an ailment” that was contributed to, to a significant degree, by the employee’s employment.
Two features of these definitions are worth noting: first, the use of the word “injury” to describe both the overarching concept as well as a subset thereof, and second, the layered definition of “disease” which involves not merely the generic descriptor “ailment”, but also a significant degree of workplace contribution.
In Military Rehabilitation and Compensation Commission v May [2016] HCA 19 (May) the decision of the plurality confirms that each category – “disease” or “injury (other than a disease)” - creates a separate basis for liability under the statutory scheme.[77] The requirement that there be a physiological change is applicable only to the latter, i.e., “injury (other than a disease)”, and is not applicable to a “disease”, which is defined in terms of “ailment” in subsection 4(1) of the SRC Act, and includes any “disorder, defect or morbid condition”.[78]
[77] French CJ; Kiefel, Nettle and Gordon JJ, at [50]-[53].
[78] Wuth v Comcare [2022] FCAFC 42, at [104] per Wheelahan J; Griffith and Snaden JJ concurring.
In Wuth v Comcare [2022] FCAFC 42, at [85], Wheelahan J stated:
The word “injury” in paragraph (b) is used in its primary sense, and part of the legislative context is a body of High Court authority that over the years has considered the meaning of the term “injury” in different workers’ compensation statutes. For the purposes of s 4(1) of the SRC Act, the court’s decision in MRCC v May is the relevant binding authority on the meaning of the word “injury” in its primary sense.
The first question is therefore whether the claim for compensation is for a “disease” in the defined statutory sense. If so, there is no need to proceed further. If not, a decision-maker must turn to the question whether the evidence shows an “injury” (in the primary sense of that word).
I therefore propose to ask the following questions:
(a)Does the evidence show that Mr Higgerson had something that can be described as an “ailment”, being a physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development) or the aggravation of an ailment?
(b)If so, was Mr Higgerson’s ailment (or if relevant, the aggravation of that ailment) contributed to, to a significant degree (that is a degree that is substantially more than material) by his employment by PAPL?
If the answer to either (a) or (b) is no, then the Tribunal can be satisfied that Mr Higgerson does not have a “disease” in the statutory sense. It should then consider the “alternative basis for liability” - based on an injury (other than a disease), that is, a physical injury (in the primary sense of that word).
I will then need to consider the following questions:
(a)Does the evidence demonstrate that Mr Higgerson suffered a physical ‘injury’ when he jarred his knee on the 16 October 2019? [79]
(b)If so, does the evidence establish that the physical injury arose out of, or occurred in the course of, his employment by PAPL?
(c)If not, does the evidence show aggravation of a physical injury (whether or not that physical injury arose out of, or in the course of, his employment)?
(d)If so, does the evidence demonstrate that the aggravation of the physical injury arose out of, or occurred in the course of, his employment?
[79] For convenience, I have omitted reference to so-called “mental injuries”, which are not relevant to the present case.
The application filed on 20 April 2021 must be considered as the first order of priority.[80] It encompasses all the factors that need to be resolved by the Tribunal to dispose of both applications.[81]
[80] PSG0403; 2021/8735.
[81] PSG0360; 2020/4266.
THE FIRST BASIS OF LIABILITY – INJURY IN THE STATUTORY SENSE
(a)Does the evidence show that Mr Higgerson had something that can be described as an “ailment”, being a physical or mental ailment, disorder, defect or morbid condition, (whether of sudden onset or gradual development), and if not, does the evidence show the aggravation of an ailment?
The evidence that Mr Higgerson has a physical ailment relating to his left knee may be found in his frequent medical consultations, the views of his long-standing doctors (especially Dr Isaac), and his reports of intense pain both preceding and following the October 2019 incident.
Dr Steadman and Bodel referred to the April 2021 MRI report. Unfortunately, this report was not included in the materials before the Tribunal. Dr Bodel referred to the report in his Supplementary Report and noted:
“The lumbar spine MRI shows multilevel degenerative disc disease at L3/4, L4/5 and L5/S1. The comment confirms that there is spondylitic change and disc pathology with multilevel canal and bilateral foraminal stenosis. The MRI of both knees show severe osteoarthritic change in the left knee with evidence of an anterior cruciate ligament rupture. In the right knee, there mild to moderate osteoarthritic change and a partial rupture.”[82]
[82] T54, 353.
In oral evidence, Dr Steadman described the April 2021 MRI report as follows:
DR STEADMAN: Yes. So it shows quite extensive degeneration throughout his body. It shows that in the lumbar spine he’s got lateral recess spinal stenosis at lots of different levels. He’s got significant osteoarthritis affecting both hips. He has osteoarthritis of both knees. The joint spaces of the medial compartment of both knees are preserved, but the left one is perhaps a millimetre closer than the one on the right, with the patellofemoral joints showing degeneration as well. And it shows that the osteoarthritis of the left knee - which is the case - shows that the join ends - as we say, they’re not kissing. So there’s still some preservation of cartilage there. There’s all the classic features of overgrowth of arthritis and the (indistinct) changes, and the like, all of which are not by themselves unique when there’s advanced degeneration in the medial compartment. But the left knee shows there’s a different of one millimetre. And then I went back and looked at the X-rays of 12 February 2019 and 12 July 2019, both of which pre-date. And, as in orthopaedic practice, we always request weight-bearing views of the knee. The X-ray practices don’t just X-ray one knee, they X-ray both knees. And both knees back in - particularly the left knee of 12 July 2019 - which is, again, the subject of the case today - doesn’t show any substantial difference. Although I would have to tell you that MRI is a supine investigation of the knee, and not weight bearing. It’s a supine investigation, so you don’t actually see the same degree of - you can’t see the closure of the joint to the same extent because it’s not - you’re not - it’s not being done with you standing up. But basically all of the changes that are present in both medial compartments of both knees are largely reflective and accurate with the previous X-rays.”[83]
[83] Transcript, 17 June 2022, 156-7.
There is little doubt that Mr Higgerson was suffering from osteoarthritis of the left knee at the time of the incident in October 2019, and that this constitutes an “ailment”.
(b)If so, was Mr Higgerson’s ailment (or where relevant, the aggravation of that ailment) contributed to, to a significant degree (that is a degree that is substantially more than material) by his employment by PAPL?
Dr Bodel wanted to describe Mr Higgerson’s knee condition as “post-traumatic osteoarthritis”, but had accepted the non-specific description (osteoarthritis of the left knee) preferred by his colleagues. He said:
“DR BODEL: … There was a lengthy discussion where I wanted the answer to question 1 to read, “post-traumatic osteoarthritis of the left knee”. I agreed with the rationale as to why we took the word “post-traumatic,” out of it, because of the confusion that could arise from using that word as to when it became post-traumatic. The medical evidence that we are all basing this on clearly shows that an event occurred in 2002 which was a traumatic event that led to pathology. He then had treatment for that. It was never normal again after that. So from that day onwards he has had a post-traumatic osteoarthritis which has progressively deteriorated over time, which is the natural history of osteoarthritis. Events have occurred, including the event on 16 October 2019, which has caused a further post-traumatic aggravation of an osteoarthritic knee. [Emphasis added]”
Dr Gill defended the answer given - “osteoarthritis of the left knee” - on the basis that the question did not include wording about causation.[84] However, the remaining question did specifically address causation. He commented that in 2008 there was clear evidence of arthritis of the left knee. This was so even if arthritis was not referred to in the reports of that time.[85]
[84] Transcript, 17 June 2022, 162.
[85] Transcript, 17 June 2022, 158.
Dr Bodel agreed with the majority that the degree of aggravation arising from the nature and condition of employment taking account of the 16 October incident was “minimal”, yet under cross-examination accepted that “further events” had caused a further post-traumatic aggravation of an osteoarthritic knee.
The doctors all agreed that his osteoarthritis in 2019 was attributable to the original incident in 2002. This was despite the slow progress of the disease, and even though arthritis may have multiple causes. By contrast, the answers given in conclave ruled out any relevant connection between the 2019 incident and the aggravation of the underlying pathology of the knee, other than in a short-lived and trivial way.
The critical question for the Tribunal is whether his employment with PAPL contributed in a significant degree to his ailment. The SRC Act expressly provides that, in deciding that question, certain matters may be taken into account, including the duration of his employment; the nature of, and particular tasks involved in, the employment; any predisposition of the employee to the ailment or aggravation; and activities of the employee not related to the employment; and any other matters affecting the employee’s health.[86]
RELEVANT FACTORS
[86] SRC Act, subsection 5B(2).
The duration of his employment
He worked continuously as an AV operator until September 2021, apart from the last 12 months of his employment when he was on light duties or off work.
The nature of, and particular tasks involved in, the employment
The role of AV operator is physically and mentally demanding. The AV is high and for security reasons has narrow entry points. According to the Job Description it involves agility, the capacity to life at least 16 kilogram coin bags, and mental fortitude. No evidence of changing work practices has been put to the Tribunal to detract from the job assessment information.
In this context, a controversy arose. It appeared that during the conclave discussions Dr Steadman said to the other doctors that there had been a reduction in the need for heavy lifting by security guards, resulting from the reduction of ATM machines by the banking sector and the reduced use of cash in the community. Dr Steadman repeated this opinion to the Tribunal.
Mr Higgerson’s counsel submitted that Dr Steadman was not qualified to give evidence regarding changed work practices in the security industry, and that the medical evidence was therefore tainted.[87]
[87] For a complete job description see T17, 42 (61).
This issue was the subject of written submissions.
I do not accept that the opinions expressed by Dr Gill and Dr Bodel should be disregarded because of Dr Steadman’s view about the nature of modern work practices for armoured truck operators. I accept the propositions set out at paragraph 91.2 of the Respondent’s submissions of 22 August 2022:
“91.2. In all the circumstances, the applicant’s assertion (paragraph 16) that the concurrent evidence falls short of the “basis rule” is not made out. It is an assertion without foundation, and it is a distraction. As pointed out by the Tribunal at the hearing (correctly, with respect), it can be taken as read that the evidence given by the three experts was influenced by not only their professional expertise but also their knowledge about such things (eg, evolving work practices). In fact, it may also be observed that it would be impossible for, and artificial to ask, experts (particularly those who give many medico-legal reports and who give evidence frequently) to completely divorce themselves from their own experiences.”
Dr Bodel firmly rejected any suggestion that he had been influenced by Dr Steadman’s view on the nature of work. He used his own experience as to what had happened to the nature of work.[88] I also note that he had commented in the First Report on the arduous nature of the role of security guard.[89]
[88] Transcript, 17 June 2022, 164.
[89] T44, 298 (273)
I agree that the issue was something of a distraction. No direct evidence of changed work practices was put to the Tribunal to detract from the job assessment information. On the basis of that information I formed the opinion that the role of AV operator is arduous and physically demanding, and remained as such throughout the term of Mr Higgerson’s employment with PAPL. The nature of the duties performed by him as part of his role as AV operator is directly relevant to question of significant contribution.
Any predisposition of the employee to the ailment or aggravation
The Patient Health Summary from the Kotara Family Practice states that Mr Higgerson had osteoarthritis of the left knee in 2011.[90] By June 2012, Dr Gill reported that he had “quite an arthritic knee” and was “certainly very arthritic for a younger chap”.[91] But this was ten years after the fall in 2002.
[90] Patient Health Summary, Kotara Family Practice, printed 18 September 2020: Hearing Book, 6, 165, 196.
[91] Letter dated 25 June 2012 from Dr Gill following 2012 arthroscopy operation: T16, 60 (41)
Due to the nature of his duties, Mr Higgerson had at least five workplace incidents over the two decades spent in the industry. He reported a number of workplace incidents. For example, on 1 April 2002, he reported that he slipped down the rear steps of an AV parked near the Beresfield Train Station, while carrying two heavy coin boxes.[92] In 2004, he sprained his back while lifting coin bags into the truck.[93] In 2007, he reported a soft tissue injury to the left hip, when he fell whilst exiting an AV.[94] In 2011, he reported a back strain injury from lifting bags of coin.[95] In September 2015, he twisted his right knee while moving from the front to the rear of the AV.[96]And then there is the subject of the present proceedings, the incident on 16 October 2019.
[92] See Compensation Claim Form: T26, 90-91 (110-111), 93 (113).
[93] Hearing Book, 454.
[94] T46, 302 (276).
[95] T46, 302 (276).
[96] T18, 74 (93); T19, 75 (94).
The medical evidence does not allow a clear inference to be drawn as to Mr Higgerson’s innate predisposition to developing arthritis, or the extent to which these various workplace incidents may have contributed towards the development of the disease.
Activities of the employee not related to the employment
According to notes taken by Dr Steadman, his hobbies include rifle shooting and fishing. He was unable to undertake house renovations or walk on sand. He did not engage in energetic activities such as running.[97]
[97] Report by Dr Steadman, 30 October 2019: T41, 276 (251).
Medical evidence
As noted above, the conclave response by the medical experts to the question whether, in addition to the claimed hyperextension event, the diagnosed condition was either caused or alternatively made worse by the nature and conditions of the applicant’s employment in carrying bags of coins in the period from 2012 to 16 October 2019, was “No” and “Minimal”.
The doctors were however satisfied that there was a causal connection between the 2002 injury and the development of left knee arthritis, despite the fact that the disease did not manifest for many years.
Trauma is one possible cause of arthritis but there may be other explanations. Indeed, Mr Higgerson might simply have a predisposition to the disease. The medical record suggests that he did not develop osteoarthritis in his left knee until many years after the 2002 incident. Indeed, as late as 2019 the medical record suggested “mild” or “moderate” osteoarthritis in the left knee.[98]
[98] The report on X-rays taken on 12 July 2019 states: “Moderate OA is present at the tibiofemoral compartment and mild OA is present at the patellofemoral compartment”: T23, 82 (102); T38, 238 (213); Hearing Book, 352.
However, the Tribunal must accept that at the hearing the experts were unanimously of the view that employment with PAPL did not contribute other than minimally to his arthritis. The extent to which this view was based on a belief that there was no medical evidence of any significant injury in October 2019 is somewhat unclear.
Dr Bodel’s oral evidence departed considerably from his pre-hearing evidence. His previous considered opinion was that the nature and conditions of his work since 2002 “caused aggravation, acceleration, exacerbation and deterioration of that disease process in the knees” and it was “certainly the case” that the incident of 16 October 2019 had done so.[99] As noted above, it became apparent that he had not fundamentally resiled from this position, even though he made the conclave answers unanimous. [100]
[99] T44, 297 (272)
[100] See para 84 above.
In light of the medical evidence, taken as a whole, I am not satisfied that his employment with PAPL from around 2012 was a significant contributor to the development of Mr Higgerson’s left knee osteoarthritis. It may have been material, but it was not substantially more than material.
Therefore, to the extent that osteoarthritis of the left knee is the relevant ‘ailment’, it is not a ‘disease’ within subsection 5B(1) of the SRC Act. He is therefore not entitled to workers compensation on this basis.
I therefore turn to the alternative basis for liability, namely, whether he had a physical injury (or the aggravation of such an injury) arising out of or in the course of his employment.
THE ALTERNATIVE BASIS OF LIABILITY - INJURY (OTHER THAN A DISEASE)
In May, the plurality stated, at [52], that:
If there is not a "disease" within par (a) of the definition of "injury", the tribunal of fact next inquires whether there is an "injury (other than a disease)" within par (b). The third question is – does the evidence demonstrate the existence of a physical or mental "injury" (in the primary sense of that word)? Generally, that will be determined by asking whether the employee has suffered something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state. However, that judicial language is not to be construed or applied as if it were the words of a statute defining a necessary condition for the existence of an "injury (other than a disease)". The language of judgments should not "be applied literally to facts without further consideration of what is conveyed by the reasoning" in the cases from which it is derived, or without regard to the text and scheme of the Act. [Citations omitted]

As to the requirement of suddenness, the plurality stated, at [47]:
However, as the Full Court correctly held, "suddenness" is not necessary for there to be an "injury" in the primary sense. A physiological change might be "sudden and ascertainable". A physiological change might be "dramatic". The employee's condition might be a "disturbance of the normal physiological state". That an "injury" in the primary sense can arise, and can be described, in a variety of ways does not mean that "suddenness" is irrelevant. As the Full Court said, "suddenness" is often useful where there is a need to distinguish a physiological change from the natural progress of an underlying (and in one sense, closely related) disease…But it is the physiological change – the nature and incidents of that change – that remains central. [Citations omitted]
The question arising from the plurality’s judgment in May is whether the fall on 16 October 2019 incident produced a physiological change or disturbance to the physiological state of his left knee.
The unanimous view of the specialists was that there was no medical evidence of any significant injury occurring on 16 October 2019. There is nothing in the radiology or MRI reports done in 2019 to show unequivocally that the Applicant suffered an injury to his left knee on 16 October 2019. Dr Gill thought that the medical evidence went further, suggesting that as a matter of fact, no injury had occurred. I think that goes too far considering the medical notes made by Dr Mollonkopf, Dr Isaac and Dr Cumming, of the Kotara Family Practice.
On balance, I am not satisfied that the medical evidence supports a finding that Mr Higgerson suffered a physical injury, in the primary sense of that word, on 16 October 2019. Medical evidence of an identifiable physiological change to his underlying knee condition is scanty.
AGGRAVATION OF A PRE-EXISTING INJURY
That, however, does not dispose of the matter. Following the decision-procedure identified in May, I turn to the final pair of questions:
(c)Does the evidence show aggravation of a physical injury (whether or not that physical injury arose out of, or in the course of, his employment)?
(d)If so, does the evidence demonstrate that the aggravation of the physical injury arose out of, or occurred in the course of, his employment?
It is not in doubt that the Applicant suffered a physical injury in April 2002, for which he received appropriate medical treatment and compensation. It does not matter for present purposes that in 2002 he was not employed by PAPL but by Chubb.
In Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537 at 593, Windeyer J said:
The word “aggravation” means than an existing disease has been made worse, not that it has simply become worse.
In their pre-hearing reports, each of the specialists accepted that the accident that occurred in October 2019 had an impact. Dr Steadman noted that his condition had been deteriorating and was made worse by a “minor jar”.[101] Dr Gill said he would not be surprised “if a seemingly small event would have flared the chronic left knee problems”.[102] Dr Bodel stated:
“I am satisfied that the episode of injury on 16 October 2019 has caused further problems with the left knee, and aggravation of the underlying degenerative change in the right knee and also the hips and back, and there is a causal link between that episode and the nature and conditions of his work and the deterioration over time. This is based on the clinical presentation presented at the time of my assessment.”[103]
[101] T41, 278 (253)
[102] T52, 336-7.
[103] Report dated 27 August 2021, T64, 389.
At the hearing, the conclave questions focussed the inquiry on “the diagnosed condition”, namely, the state of underlying osteoarthritis. The doctors considered that the development of the disease was not made worse by the October 2019 incident, but they appear to have accepted that the 16 October incident had caused some aggravation of his underlying knee condition.
Moreover, I note that in neither claim did Mr Higgerson claim for osteoarthritis as such. His first claim, on 5 February 2020, was for “hyperextension of left knee”. His second claim, on 20 April 2021, was for “personal physical injury”. The characterisation of his claim as being specifically for osteoarthritis was crystallised by the Determinations made on 27 March 2020, based on medical certificates provided by the Applicant, and carried through to the review decision by Moray & Agnew, on 23 June 2020. His second claim was also disposed of on the basis that it was for osteoarthritis, the diagnosis being confirmed by Dr Steadman, and this was carried through to the review decision made on 27 October 2021.
In this context, there was some debate between opposing counsel as to the relevance of pain as an indicator that his left knee condition had become worse. Counsel for the Applicant said that it was open for the Tribunal to find, on the basis of the facts in this case, that an increase in pain symptoms amounted to an aggravation of the pre-existing injury and was compensable. Counsel for the Respondent argued that as a general rule pain by itself was not of itself compensable, but could be in particular cases.
I note that both counsel referred to relevant case law. In written submissions, the Applicant’s counsel noted:
“40. Reference is made again to the judgment of Finkelstein J in Tippett v Australian Postal Corporation [1998] FCA 335 which concerned an interpretation of the relevant provisions of the Act. His Honour explained that Beattie also stood for the proposition that the symptom of an injury is part of the injury and thus compensable (at 44). His Honour referred to the Full Federal Court decision of Commonwealth Banking Corporation v Percival (1988) 20 FCR 176. The Full Federal Court in that case made this observation (at 179 – 180):
No doubt, for many medical purposes, it is useful and often necessary to distinguish between the underlying pathology of a disease and mere symptoms of the disease….It is indeed fundamental to compensation law that a symptom of an injury or disease is part of the condition in respect of which compensation for incapacity is granted. Pain is probably the most common symptom of injury or disease. It is equally the most common factor leading to compensable incapacity.
41. After quoting the above passage of Kitto J, Finkelstein J then observed (at 43-44):
In other words, there will be an exacerbation of an injury when the experience of the injury is increased or intensified without any alteration to the underlying physical or mental condition. In considering the meaning of the word “aggravate” in the Compensation Act, which is the only one of the four words that appeared in the definition of “injury” in the New South Wales statute considered in Semlitch, it has been held that the same principles apply; that is to say an injury will be aggravated if the experience of the injury is increased or intensified: Commonwealth v Beattie (1981) 35 ALR 369. In addition, because “aggravation” of an injury is defined to include the “recurrence” of that injury it is not necessary to show that the experience of an injury is increased or intensified. It will be sufficient if, as a result of activities undertaken in the course of employment, a previous injury occurs again whether or not the experience of it is at the same level of intensity as before.”
In extensive submissions, the Respondent’s counsel drew attention to the following passage in the Federal Court in Mellor v Australian Postal Corporation [2009] FCA 504 at [42] (Bennett J):
Tippett … inaccurately summarised the joint judgment of Evatt and Sheppard JJ in [Commonwealth v] Beattie [(1981) 35 ALR 369] as stating that an injury will be aggravated if the experience of the injury is increased or intensified. In fact, their Honours said that ‘it is enough to say that pain brought on by work activity may constitute an aggravation’” [Emphasis added].
92.2. Contrary to the applicant’s submissions at paragraphs 21 to 42, the Full Court of the Federal Court in Commonwealth v Beattie (1981) 35 ALR 369 at 378 (Evatt and Sheppard JJ) additionally said this.
It does not follow in every case that a worker with a pre-existing injury, who carries out work and as a result suffers pain, will have suffered an aggravation of his injury. A worker whose fractured leg is encased in plaster will be unable to put it to the ground without suffering pain and other disability. But that is not a case of aggravation. In such a case any incapacity for work arises only by reason of the pre-existing injury. …Thus each case must depend upon its own facts. For present purposes it is enough to say that pain brought on by work activity may constitute an aggravation of a pre-existing injury even though no pathological change takes place.
Neither Wuth nor May is factually similar to the present case. In both cases there was no identifiable underlying medical condition to explain particular symptoms, feelings of vertigo (in May) and headaches (in Wuth).
Although the matter is not entirely free from doubt, I do not read May as laying down an absolute rule that the subjective experience of pain can never constitute the aggravation of a pre-existing injury (in the primary sense) unless there is identifiable physiological change. Indeed, May was not concerned with aggravation as such. At para [53], immediately after the passage quoted above, the plurality stated:
If there be an "injury" in the primary sense of the word, the next question is – did that injury arise out of, or in the course of, the employee's employment by the Commonwealth? If that question is answered "Yes", there is an "injury (other than a disease)" within par (b) of the definition of "injury" in s 4(1) of the Act. In some circumstances, if the answer is "No", it may be necessary to ask whether the case is one involving aggravation of an injury. That question does not arise in this appeal. [Emphasis added].
Identifying the presence of an injury (in the primary sense) and determining aggravation of a previously accepted injury, are different exercises. I proceed on the footing that it is not a pre-condition to finding aggravation (as opposed to injury in the primary sense) that there must be identifiable physiological alteration of the underlying physiology. I therefore conclude on the basis of the decision of the Full Court of the Federal Court in Commonwealth v Beattie (1981) 35 ALR 369 at 378 (Evatt and Sheppard JJ) that the question whether the experience of subjective pain experienced by a worker is sufficient in a particular case to constitute aggravation of a pre-existing injury is a question of fact.
The medical evidence clearly indicates that Mr Higgerson suffers from arthritis in various parts of his body and that his condition is painful, exhausting and debilitating. However, until October 2019, it did not prevent him from carrying out his duties. The evidence shows that he has suffered a number of workplace accidents as a result of the arduous nature of his work. It is common ground that he was injured in 2002 and developed consequential arthritis in the left knee.
As to the impact of the 16 October 2019 incident, Dr Bodel was unequivocal in his earlier reports. It had caused “further problems with the left knee”,[104] and “caused a further aggravation of the longstanding pathology in the left knee”.[105] Even Dr Gill had previously said he would not be surprised “if a seemingly small event would have flared the chronic left knee problems”.[106] Dr Steadman treated the impact as involving a “minor jar”. Presumably, this reflected his opinion that the pain experienced on that occasion was relatively minor. It was not the sort of excruciating pain one might experience with a broken bone. But given the pain that Mr Higgerson was experiencing in the weeks leading up to this incident, and the subsequent disruption to his employment, the description “minor” is somewhat anodyne if not question-begging.
[104] T64, 389.
[105] T54, 355.
[106] T52, 336-7.
In my view, the identification of arthritis as the governing diagnosis, coupled with a view that his left knee arthritis was attributable solely to the injury sustained in 2002, has deprived the Applicant of compensation to which he is entitled under the SRC Act. There was no consideration by the original decision-makers of the alternative basis for liability identified by the High Court in May, based upon the existence of a physical injury in the primary sense.
It was common ground that the Applicant suffered a physical injury in 2002. In his First Report, Dr Steadman stated:
“The significance of the medial compartment changes reflect upon the historical operation where a partial meniscectomy was performed and are known as the Fairbank changes which represented direct consequence of medical meniscectomy of the 2002 injury and its consequential operative interventions.”[107]
[107] T41, 276 (251)
Under the relevant statutory provision, it matters not that the original injury occurred while he was employed by Chubb. The critical issue is whether the original injury was aggravated in October 2019 in the relevant sense, and if so, whether that aggravation arose out of or occurred in the course of his employment with PAPL.
The Respondent argues that no such finding can be made, in the absence of clear physiological evidence of a further physiological change occurring on 16 October 2019, so as to require in effect a fresh injury. I think that places too high a burden on a worker under the compensation scheme contained within the SRC Act.
As to the final question (d) above, the circumstances of aggravation occurred on 16 October while he was employed by PAPL.
THE RESPONDENT’S SUBMISSION RELATING TO PROCEDURAL FAIRNESS
I note the Respondent’s solicitor’s email dated 31 August 2022 addressed to the Registrar of the Tribunal referring to the Applicant’s Submissions in Reply dated 31 August 2022 which reads as follows:
“Dear Registrar
We refer to the applicant’s submissions in reply dated 31 August 2022.
The respondent would respectfully seek to be heard in relation to those submissions if the Tribunal is considering accepting any of them.
Among other things, there are matters in the applicant’s submissions in reply which we submit ought properly to have been put in the applicant’s submissions-in-chief and/or raised at or before the hearing if the applicant intended to rely on them. For example, the applicant seeks to rely on the decision in Wuth v Comcare [2022] FCAFC 42 in support of yet a further case theory which, much like his “secondary pain condition” case, was not squarely put before or at the inception of the hearing. There are substantial procedural fairness consequences suffered by the respondent, because of the approach taken by applicant, which emerge in the circumstances: see, for example, the respondent’s submissions at par 92.1(b) and Re Walters and Comcare (Compensation) [2021] AATA 14 at [39]-[41].
Of course, if the Tribunal is not considering accepting the applicant’s case and is content to affirm the decisions under review then the respondent would not need to be heard further.
We would be grateful if you were to draw this correspondence to the Senior Member’s attention, please, to enable him to consider it in determining whether any further oral hearing is required or whether a decision can simply be made without hearing further from the parties.”
I note that Wuth was first mentioned by the Respondent in [33] of the post-hearing submission dated 22 August 2022.[108] This decision was not referred to during the course of the hearing, or cited in the pre-hearing submissions filed by either party.
[108] In this case, the Respondent was referring to the Federal Court decision rather than the decision of the Full Federal Court as referenced in their August 2022 email.
On 9 December, the Tribunal invited the Respondent to provide further submissions in response to the Applicant’s Reply by 21 December. The matter was listed for a hearing in the event that the parties wished to make oral submissions. The Respondent accepted the Tribunal’s invitation to provide further written submissions, and did so on 16 December 2022.[109]
[109] Regrettably, some parts of the further reply show a marked lack of civility towards the Applicant’s counsel: see paragraphs 3, 12, 30.
At the heart of the Respondent’s Reply is the contention that the Tribunal is required to apply the relevant statutory provisions exclusively to a specific disease, namely, osteoarthritis of the left knee, and bound by the oral evidence given by the three experts who appeared before the Tribunal. The Respondent appears to contend that after hearing all the evidence the Tribunal is precluded from examining whether the incident of 16 October aggravated the Applicant’s previous injury sustained in 2002, and that insufficient notice was given by the Applicant’s counsel that he intended to rely upon pain as such. For the reasons set out in the preceding paragraphs of these reasons, I do not accept these submissions.
Moreover, I consider that the Respondent has had ample notice of the significance of pain in these merit review proceedings. It is not accurate to reduce the Applicant’s claim to a claim for a “pain-condition”. This was never a case where there was no underlying physiology capable of generating feelings of intense pain.
The difficult question for the Tribunal is whether, considering all the evidence, including the evidence relating to his experience of pain, it is reasonable to find that the incident of 16 October 2019 aggravated the injury sustained in 2002. There is evidence before the Tribunal that the Applicant experienced pain following the 16 October 2019 incident. But that is not the only reason for concluding that the incident of 16 October aggravated the previous injury.
FINDINGS
I make the following findings:
(a)On or about 2 April 2002, Mr Higgerson slipped down the back-steps of an AV during the course of his employment with Chubb;
(b)He received workers compensation under WorkCover in respect of his injury;
(c)On or about 16 December 2013, his employment transitioned from Chub to PAPL;
(d)PAPL is a self-insured corporation under the SRC Act;
(e)PAPL is not authorised to accept liability for injuries occurring outside the period specified in its licence, which runs from the period commencing immediately after midnight (Australian Eastern Daylight Time) on 1 July 2007 and ending at the end of 30 June 2025 (Australian Eastern Standard Time);
(f)The nature of his employment for PAPL was physically demanding. It involves lifting, squatting, rotating, climbing and descending narrow steps and doors, while armed and wearing body armour;
(g)In the course of his overall employment as a security guard, he reported a number of workplace accidents, including injuries to his right hand, back, knees and tendon;
(h)In the course of his employment by PAPL, he reported workplace incidents in 2015 (back sprain) and 2019 (left knee hyperextension);
(i)He suffers from osteoarthritis of the left knee;
(j)In 2012 his arthritis was diagnosed as mild or moderate, but by 2019 it was more severe;
(k)On 8 October 2019, he was experiencing significant pain in his left knee;
(l)On 16 October 2019, he slipped and fell down the back-steps of his AV while in the course of his employment, and jarred his left knee;
(m)In the aftermath of this incident, Mr Higgerson experienced pain and discomfort in his left knee;
(n)He reported the incident to his employer;
(o)He sought medical treatment and obtained work incapacity certificates following the incident;
(p)He has not worked in his original role since 16 October 2019;
(q)In September 2021 his employment was terminated;
(r)I am not satisfied that his employment with PAPL from around 2012 was a significant contributor to the development of his left knee osteoarthritis. It may have been material, but it was not substantially more than material;[110]
(s)I am not satisfied that the incident on 16 October 2019 accelerated the rate of arthritic deterioration of his left knee;
(t)The incident of 16 October is not clearly associated with any identifiable or detectable change in the physiology of the left knee. I am therefore not satisfied that he suffered a physical injury, in the primary sense of that word, on 16 October 2019; and[111]
(u)I am satisfied that the incident that occurred on 16 October 2019 caused aggravation to his original 2002 physical injury so as to make that injury worse.
[110] See paragraph [107] above.
[111] See paragraph [115] above.
CONCLUSION

On balance, I am satisfied that Mr Higgerson slipped down the back-steps of his AV on 16 October 2019 and aggravated his original 2002 physical injury so as to make that injury worse. In forming that judgment, I have considered several factors, including the medical notes arising from his initial consultations at the Kotara Family Practice, the subsequent course of his employment, his experience of debilitating left knee pain (both before and after the incident), and the opinions of the specialists who gave evidence in these proceedings.
I find that Mr Higgerson was a truthful witness.
I also note with deference inconsistencies in some of the medical evidence, especially the evidence of Dr Bodel. I have commented on this above. This tends to undermine the cogency of the medical evidence as a whole. I therefore cannot accept the Respondent’s assertion that this case is relegated to the unanimous views of the medical experts expressed at the hearing.
The aggravation occurred during the period specified by the Respondent’s self-insurance licence. He is therefore entitled to compensation for the aggravation of his 2002 injury.
As to whether Mr Higgerson may be entitled to compensation for medical expenses relating to his left knee depends on section 16 of the SRC Act. Section 16 provides:
(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
In the present case, the relevant injury to which section 16 is directed is the original injury that occurred in April 2002. I have found that the incident of 16 October 2019 constituted an aggravation of that injury. I also consider that the words of the section are sufficiently broad to include reasonable treatment arising from the aggravation of the original pre-existing injury.
I also wish to underline that in making this determination, which I regard as the correct and preferable administrative decision, I have discounted entirely any consideration as to whether, in principle, the state insurer or PAPL should be responsible for the Applicant’s medical treatments.
I am satisfied that on 16 October 2019, while in the course of his employment, Mr Higgerson slipped and fell while exiting his employer’s AV, and in so doing, aggravated a pre-existing injury that occurred in April 2002.
DECISION
Each of the decisions under review is set aside and remitted to the Respondent with a finding that the Respondent is liable under section 12 of the SRC Act in respect of the injury sustained on 16 October 2019.

I certify that the preceding 148 (one- hundred and forty- eight) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

.................................[SGD].......................................
Associate
Dated: 2 February 2023

Date(s) of hearing: 16 & 17 June 2022

Date final submissions received: 31 August 2022

Counsel for the Applicant: Mr S Mueller

Solicitors for the Applicant: Cardillo Gray Partners

Counsel for the Respondent: Mr P Woulfe

Solicitors for the Respondent: HWL Ebsworth Lawyers

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Citations
Higgerson and Prosegur Australia Pty Ltd (Compensation) [2023] AATA 115

Cases Citing This Decision
0

Cases Cited
7

Statutory Material Cited
0

Military Rehabilitation and Compensation Commission v May [2016] HCA 19

Wuth v Comcare [2022] FCAFC 42

Tippett v Australian Postal Corporation [1998] FCA 335

Date(s) of hearing:	16 & 17 June 2022
Date final submissions received:	31 August 2022
Counsel for the Applicant:	Mr S Mueller
Solicitors for the Applicant:	Cardillo Gray Partners
Counsel for the Respondent:	Mr P Woulfe
Solicitors for the Respondent:	HWL Ebsworth Lawyers