Hovenden and Comcare (Compensation) - [2020] AATA 3695

Hovenden and Comcare (Compensation) [2020] AATA 3695 (21 September 2020)
Division:GENERAL DIVISION
File Number:2019/1653
Re:Damian Hovenden
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Member R West
Date:21 September 2020
Place:Melbourne

The Tribunal affirms the decision under review.
.....[sgd]...................................................................
Member R West
Catchwords
WORKER COMPENSATION – s 14 of the Safety, Rehabilitation and Compensation Act 1988 – degenerative spinal condition – symptoms of tightness and pain – whether aggravation of an ailment – not a disease or an injury – decision affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988
Administrative Appeals Act 1975
Cases
Bailey v Broadsword Marine Contractors Pty Ltd [2017] FCAFC 219
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Balacki v Comcare [2013] AATA 768
Asioty v Canberra Abattoirs Pty Ltd (1989) 167 CLR 533
Re Commonwealth of Australia v Beattie [1981] FCA 88
Australian Postal Corporation v Bessey [2001] FCA 266
REASONS FOR DECISION
Member R West
21 September 2020

This matter concerns an application for the review of a decision of a delegate of the Respondent dated 20 March 2019 to affirm a determination dated 8 February 2019 by which the Respondent denied liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Act) for the Applicant’s condition of chronic low back pain or aggravation of chronic low back pain.
BACKGROUND
The Applicant is employed as a Customer Service Officer with Services Australia, having commenced the employment on 9 April 2006.[1]
[1] T12.
On 27 November 2001, the Applicant sustained an injury to his lower back while employed as a part-time process worker with Pasta Master, a food processing company.[2] Liability for the injury was accepted by the insurer under the Victorian Workcover scheme and the Applicant was compensated for his incapacity and medical expenses.[3]
[2] Tribunal Book, p 279.
[3] Ibid.
On 11 December 2018, the Applicant submitted a claim under s 14 of the Act for compensation related to an alleged exacerbation of the symptoms of his lower back condition while serving a customer on 26 November 2018.[4] The Applicant attributed the cause of the injury to the fact that his workstation was lower than requirement needed[5].
[4] T7.
[5] T7, p 14.
A delegate of the Respondent denied liability under s 14 of the Act on 8 February 2019.[6] This decision was affirmed by another delegate of the Respondent on 20 March 2019.[7] The Applicant lodged an application for a review of this decision by the Tribunal on 26 March 2019.[8]
[6] T21.
[7] T27.
[8] T1.
A hearing in relation to the review was held by audio/visual link on 7 July 2020. The Applicant was self-represented. The Respondent was represented by Mr Ray Ternes of counsel.
The hearing was conducted in the context of restrictions placed on the community in response to the COVID-19 pandemic. These restrictions necessitated that the hearing be conducted without the parties attending in person or that it be deferred until after the restrictions were lifted. The Applicant and the Respondent each consented to the hearing proceeding on the basis that it be conducted by audio/visual link. The hearing was originally scheduled for 11 and 12 June 2020. On 10 June 2020 the Tribunal convened a directions hearing by telephone to ascertain the parties’ readiness for the hearing. The Applicant indicated that he did not have access to a computer and would only have the use of his iPhone to access documents and participate in the hearing. The Tribunal determined that this level of access was inadequate and adjourned the proceedings until an in person hearing could be scheduled, but with the Applicant at liberty to apply for a relisting of the matter as a video hearing if he could obtain adequate computer facilities to enable him to properly participate in a hearing via an audio/visual link. The Applicant subsequently advised the Tribunal that he had obtained adequate computer facilities. Tribunal staff liaised with the Applicant to ensure that he was able to access the Tribunal’s Microsoft Teams system and, upon confirmation that he could do so, the Tribunal determined that the hearing could proceed by video link pursuant to s 33A of the Administrative Appeals Act 1975 (AAT Act), and the hearing was rescheduled for 7 July 2020.
In conducting the Second Tier Review the Tribunal has had regard to:
(a)the documents collated in the Tribunal Book filed by the Respondent and numbered sequentially from 1 to 803, comprising the documents produced by the Respondent pursuant to s 37 and s 38AA of the AAT Act (T Documents and Supplementary T Documents); and
(b)the Respondent’s Statement of Facts, Issues and Contentions filed on 31 March 2020 and attachments;
(c)witness statement of Linda Turbogt dated 28 May 2019;
(d)the following documents tendered by the Respondent at the hearing:
i.Secure Interview Module Dual Workstations – Drawing Number 017 Rev B (Exhibit R1); and
ii.Safe Work Instructions: Secure Interview Module (Exhibit R2); and
(e)the oral evidence of:
i.the Applicant; and
ii.Dr Tim Hwang, consultant occupational physician.
RELEVANT LEGISLATION
The relevant legislation is the Safety, Rehabilitation and Compensation Act 1988 (Act).
Section 14 of the 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.
(2) Compensation is not payable in respect of an injury that is intentionally self-inflicted.
(3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.
Section 4 sets out relevant definitions for the purpose of the Act as follows:
"injury" means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment; but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.
"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.
"ailment" means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development) and "aggravation" includes acceleration or recurrence.
Section 4(2) of the Act provides that:
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.
Section 4(3) of the Act provides that "significant degree" means a degree that is substantially more than material.
EVIDENCE
It is not disputed that the Applicant has a degenerative spinal condition and that the degenerative spinal condition was in existence long before he commenced employment with Services Australia.
The Applicant gave evidence that he first sustained an injury to his lower back in 2001 while working at Pasta Master. Dr Kevin King, orthopaedic surgeon, noted in his report of 15 December 2004[9] that the Applicant had suffered some trauma during his employment with Pasta Master, but it was superimposed upon mild pre-existing degenerative changes consistent with his age and heavy occupation as shown on x-rays.
[9] Tribunal book, p 285.
The Applicant stated that since his injury in 2001 he had irregular flareups where he experiences back pain which could be produced by, for example, sitting for a long time, gardening or sleeping in a funny position. Victorian Workcover paid for osteopathy treatment throughout the period 2002 to 2014. The Applicant’s susceptibility to periodic flare ups was confirmed in the report of his osteopath, Ms Melanie O’Shea on 21 November 2013.[10]
[10] Tribunal book, p 672.
In September 2014, the Applicant was diagnosed[11] by his treating doctor with degenerative changes/facet joint disease throughout the lumbar spine with mild disc bulges at L3/4 and L4/5 (lower back condition). MRI scans taken in September 2014 showed degenerative changes/facet joint disease throughout the lumbar spine with mild disc bulges at L3/4 and L4/5.[12]
[11] T3.
[12] T3 and T4.
The Applicant gave evidence that he had spoken to his team leader about his back condition over the years and his workstation had been assessed for OH&S risk in 2008, 2009 and 2010.[13] He said he started using a fixed stand up desk in 2010 and first used a Secure Interview Modules (SIMS) adjustable desk in late 2018.
[13] Services Australia confirmed that worksite inspections were carried out in 2008, 2010, 2011 and 2014; T12, pp 28-32.
The Applicant stated that the SIMS desk was set up for him at its maximum height. The Applicant was shown the specifications for the SIMS desk[14] which showed a range of height from 610 cm to 1100 cm. He was also shown photographs of the measurement of the height of the SIMS desk[15] showing that the height as measured was 109 cm. The measurement was taken by Ms Linda Turbogt, the Applicant’s team leader on 20 May 2019. Ms Turbogt confirmed this in her unsworn statement of 28 May 2019, which was admitted into evidence without challenge.[16] A rehabilitation provider’s report of 4 January 2019 stated that the height of fixed desk the Applicant had previously used was set at 1113 mm measured from the floor to the desk surface.[17] The Tribunal finds that the SIMS desk was set at 109 cm and his fixed desk was 111 cm. This was accepted by the Applicant, although he expressed the view that he had felt his fixed desk was much higher than the SIMS desk and that he was forced to stoop over while working on the SIMS desk.
[14] Exhibit R1.
[15] Tribunal Book, p 207.
[16] Tribunal Book, 293-294.
[17] T13, 92.
The Applicant described his duties as a customer service officer. He would go to the waiting room and bring the customer to his workstation, being the SIMS desk. He would spend between 5 and 45 minutes dealing with the customer’s issues. He said he had time between customers to stretch. He said that prior to 2016 he had experienced some tightness in his back which required him to stand up and move around. He said he worked approximately three days per week on the SIMS desk after 2018.
The Applicant described the events giving rise to his claim. On 16 November 2018, he had worked all day on the SIMS desk and had experienced tightness in his back. He said he completed his day’s work and didn’t think much of it. On the next day, Saturday 17 November 2018, he felt the degree of tightness had increased, and on the next day he was stiffer when he got up and his back became stiffer as the day progressed. He said he took anti-inflammatory medication to ease the pain. He said that he did not seek treatment over the weekend because he was used to dealing with flare ups in his back. He said that by Monday 18 November 2018 he was in pain and did not go to work. He said that he reported the injury to work but did not complete an incident report because he was used to managing back pain. He saw his GP, Dr Thompson, on 20 November 2018.
In a medical certificate of capacity issued on 20 November 2018,[18] Dr Thompson diagnosed that the Applicant had lumbar pain with right leg radiation from using standing desk lower than usual desk – lower back pain/spasm and certified that the Applicant was unfit for work from 19 to 24 November 2018. A further certificate issued by Dr Thompson on 23 November 2018[19] indicated that the Applicant would be fit for work from 26 November 2018.
[18] T5, p 9.
[19] T6, p 11.
The Applicant returned to work on Monday 26 November 2018 and completed an incident report.[20] He subsequently took a week of recreation leave from 4 to 7 December 2018[21] to recover from the back pain as he had run out of sick leave. Dr Thompson issued certificates of incapacity for those dates.[22] The Applicant said he had recovered by January 2019.
[20] T12, pp 82-83.
[21] T12, p 77.
[22] T8 and T9.
On 11 December 2018, the Applicant submitted a claim for compensation under the Act.[23] In the claim form, the Applicant stated that he had sustained a back injury while serving a customer and that the injury occurred because his workstation was lower than requirement needed.[24] He said in the form that he first noticed the symptoms of the injury at 6.00am on 26 November 2018.[25] The Applicant stated in cross-examination that he entered that date on the form on the advice of Ms Tarlington, the person assisting him to make his application.
[23] T7.
[24] T7, p 14.
[25] Ibid.
Dr Thompson issued a certificate[26] on 20 December 2018 stating that the Applicant had suffered a lumbar back pain – exacerbation of chronic lumbar disc degeneration and would be fit for a return to work from 25 January 2019 pursuant to a RTW [return to work] agreement to apply until 22 February 2019.
[26] T11, p 25.
The Applicant was seen by Dr Tim Hwang, consultant occupational physician, at the request of the employer, on 23 January 2019. In his report of 30 January 2019,[27] Dr Hwang confirmed that the Applicant suffers from chronic lower back pain due to multilevel degeneration and opined, in relation to the current claim:
Mr Hovenden has a history of chronic back pain which is usually manageable with occasional flareups. He reported a flare up of his lower back lasting approximately three weeks. He attributed this to a desk that was somewhat lower than usual at work. Worksite assessment report has not been available for my review in relation to the recent matters.
In my opinion it would be plausible that a desk that is lower may result in increased muscular tightness exacerbating his symptoms in the short−term, but I would not expect this to result in any significant worsening of his structures. In order to address the question of causation I consider that any worksite assessment information should be considered prior to providing my opinion.
[27] T16, p 106.
Dr Hwang provided a supplementary report dated 7 February 2019.[28] He confirmed that he had been provided with a copy of the worksite assessment dated 4 January 2019, but unfortunately the assessment did not provide details with regard to the SIMS desk where the Applicant allegedly sustained an injury due to a low position of the desk. On the basis of this information Dr Hwang opined as follows:
On the basis of the information available at this stage, on the balance of probability, I consider that Mr Hovenden most likely suffered from a short term exacerbation of his pre−existing lower back pain in relation to this factor. I consider any effect of such exacerbation to last for several days.
I do not consider that the mechanism is likely to explain a significant worsening that would last for one or two weeks. As such, I consider that any workplace exacerbation would have ceased after approximately three days of his last workday, and any ongoing low back pain experienced by Mr Hovenden relates to his pre−existing condition or effects of spontaneous flare ups.
[28] T18,p 112.
Dr Hwang provided a third report dated 7 February 2020[29] and gave evidence at the hearing.
[29] Tribunal Book, pp 144-147.
In providing his third report, Dr Hwang was asked to reconsider his assessment noting the Applicant’s height as 168-170 cm and the measured height of the SIMS desk (to the surface of the desk) as 109 cm. On this basis Dr Hwang concluded:[30]
I have reviewed all the information for the purpose of my further opinion. The main information for consideration was the measured height of the work-station at 109cm. Noting his height of 168-170cm, this height would be expected to be at or slightly above elbow height for Mr Hovenden when in a standing position, being approximately 60cm below his height. This would hold true unless Mr Hovenden’s physique is characterised by a disproportionately short torso and long legs. I did not observe these characteristics on examination but will be happy to re-visit this if required.
It would be expected that a standing workstation height of 109cm would be ideal or perhaps slightly high for Mr Hovenden, considering his height.
Having reviewed the information and considering the extensive worksite assessments and ergonomic provisions at the workplace, I am unable to find that workplace factors were anything but optimal for Mr Hovenden.
Despite these measures, Mr Hovenden did develop acute lower back pain with spasms (as per treating practitioners’ reports), which occurred the day after a day at work standing up.
Noting his extensive pre-existing condition, the optimal ergonomic set up at work, and the absence of any specific precipitating factor, or any objectively notable suboptimal condition at work, one would have to conclude that Mr Hovenden’s episode of back pain has simply developed spontaneously. Indeed, spontaneous onset of lower back pain with spasm is not uncommon in the general population, particularly in the case of someone with a well established history of back pain. In the absence of work, I consider that it would be just as likely that Mr Hovenden would have developed acute lower back pain with spasms if he had been undertaking normal day-to-day activities and not been at work that day.
I therefore do not consider that his employment or any other workplace factors contributed to the development, aggravation, exacerbation, acceleration or progression of his back condition.
[30] Tribunal Book, p 145.
In his oral evidence, Dr Hwang explained that the opinion stated in his first two reports[31] assumed that the SIMS desk was too low, based on what he was told by the Applicant. He said he had not been provided with the measurements for the SIMS desk when he gave the opinion stated in his first two reports. He said he had assumed that the SIMS desk was 7 or 8 cm lower than the Applicant’s previous fixed desk and that this was the basis of the conclusions reached in his previous two reports. He stated that the height of the desk was the key issue for his assessment. On the basis that it was 109 cm he confirmed the opinion expressed in his third report, but if the desk was 7-8 cm lower as he had first assumed then he would stand by his earlier assessment.
[31] T16 and T18.
ISSUES
It is not asserted by the Applicant that his degenerative condition was itself an injury within the meaning of the Act. Rather, the Applicant asserted that the tightness and pain in his back experienced during his employment with Services Australia on 16 November 2018 was an aggravation of his degenerative spinal condition.
This raises the question whether the tightness and pain experienced by the Applicant following 16 November 2018 was itself an injury within the meaning of the Act, that is:
disease, being an ailment or an aggravation of such an ailment that was contributed to, to a significant degree, by the employee's employment; or
(b)an injury (other than a disease), 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.

The Full Court of the Federal Court noted in Bailey v Broadsword Marine Contractors Pty Ltd[32] that whether a condition falls within the definition of a disease or injury is a question of fact. The Court further noted[33] that the High Court had recognised in Kennedy Cleaning Services Pty Ltd v Petkoska[34] and in Military Rehabilitation and Compensation Commission v May[35] that there is not a strict dichotomy between the terms ‘injury’ and ‘disease’. The Court in Bailey noted at [22] – [24] that:
[32] [2017] FCAFC 219.
[33] at [19]-[21].
[34] (2000) 200 CLR 286.
[35] (2016) 257 CLR 468.
French CJ, Kiefel, Nettle and Gordon JJ in May posed two questions, first, whether the evidence amounted to something “that can be described as an ‘ailment’” and, if so, secondly, whether the person’s employment contributed to a material degree to that state (257 CLR at 482 [50]). They said that if the answer to both questions were “yes”, there was a “disease” within par (a) of the meaning of “injury”. If there were not such a “disease”, the tribunal of fact next had to ask if there were an “injury (other than a disease)” within par (b) (257 CLR at 482 [51]-[53]), but, importantly they then said (at 482-483 [54]-[56]):
It may be that there are circumstances in which the identification of a physiological change, a disturbance of the normal physiological state or a psychiatric disorder may satisfy the definition of “ailment” (and therefore result in a positive answer to the first question) but the second question is answered “No”. But if that is the position on the evidence, there will not be any relevant overlap between a “disease” and an “injury (other than a disease)” in the definition of “injury” in s 4(1) of the Act. It reflects the fact that there are marked differences between arising “out of” or “in the course of” (in para (b)) and “contributed to in a material degree” (for para (a)) in the definition of “injury”. And it simply means that the employee was unable to satisfy the different level of employment connection required under para (a) of the definition of “injury” under the Act.

This construction of the definition of “injury” in s 4(1) of the Act does not “rob” [Kennedy Cleaning (2000) 200 CLR 286 at 300 [40]] the “disease” limb of utility. The “disease” limb of the definition remains an additional basis of liability [cf Australia, House of Representatives, Parliamentary Debates (Hansard), 27 April 1988, p 2192].

The proper construction of the Act reflects the importance of the distinction drawn by the Act between “disease” and “injury (other than a disease)” in the definition of “injury” in s 4(1) of the Act and recognises that each creates a different basis for liability under the statutory scheme. (emphasis added)
Thus, their Honours recognised that, ordinarily, one can proceed sequentially through the definition of “injury” to ascertain whether the physical or mental state of the worker or seafarer answers all of the elements of each defined term. However, there can be cases where that state can meet parts of the definitions of “disease” and “injury (other than a disease)”, but not all of the elements of one or other definition.
However, they also explained that the categories of “disease” and “injury (other than a disease)” within the definition of “injury” were not mutually exclusive, saying (257 CLR at 483 [56]):
The proper construction of the Act reflects the importance of the distinction drawn by the Act between “disease” and “injury (other than a disease)” in the definition of “injury” in s 4(1) of the Act and recognises that each creates a different basis for liability under the statutory scheme. (emphasis added)
Applying the approach of the majority in May, the first issue is whether the Applicant’s experience of lower back tightness and pain on 16 November 2018 meets the definition of a disease.
ANALYSIS
Was the tightness and pain experienced by the Applicant a disease?
The definition of a disease includes the aggravation of an ailment, but the aggravation must be contributed to, to a significant degree, by the employee's employment, that is to a degree that is substantially more than material.[36]
[36] Act, s 4(3).
An ailment is defined in s 4 of the Act as a physical disorder, defect or morbid condition (whether of sudden onset or gradual development).
The Applicant’s degenerative spinal condition meets the definition of an ailment.
The relevant questions are therefore:
Was the tightness and pain experienced by the Applicant an aggravation of his degenerative spinal condition; and if so
(b)was it contributed to, to a degree that is substantially more than material, by his employment?
Aggravation
The Tribunal noted in Balacki and Comcare[37] , referring to the Full Court decision in Asioty v Canberra Abattoirs Pty Ltd,[38] that there is a distinction between aggravating a person’s symptoms and aggravating the condition itself, and it is the latter that is an aggravation of a disease or of an injury (other than a disease) and not the former.
[37] [2013] AATA 768 at [34].
[38] 167 CLR 533.
The Court acknowledged in Re Commonwealth of Australia v Beattie[39] that an exacerbation of pain, such as would result from rubbing salt on a wound, could be an aggravation, however the Court said:
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. The evidence earlier recounted shows this to be a very different type of case. 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.
[39] [1981] FCA 88.
In Australian Postal Corporation v Bessey,[40] the Court said:
It has been well settled by a series of decisions starting from Jordan CJ's judgment in Salisbury v Australian Iron & Steel Ltd [1943] NSWStRp 50; (1943) 44 SR (NSW) 157, including Darling Island Stevedoring & Lighterage Co Ltd v Hankinson [1967] HCA 10; (1967) 117 CLR 19; Asioty v Canberra Abattoir Pty Ltd [1989] HCA 40; (1989) 167 CLR 533 and Casarotto v Australian Postal Commission [1989] FCA 116; (1989) 86 ALR 399, that if an underlying condition is aggravated, in the sense of been made worse, then any incapacity which results is compensable. On the other hand, if the aggravation is temporary, so that after a time it ceases to have any effect and leaves the underlying condition no worse, then there is no relevant continuing injury causing incapacity….
The mere fact that incapacity resulting from the spondylosis caused pain whilst working does not mean that the symptoms resulted from a work related injury (including aggravation) but rather resulted from the underlying condition.
[40] [2001] FCA 266 at [6]-[8].
The evidence in this case leads to a conclusion which is on all fours with the conclusion of the Tribunal in Balacki. In that case the Tribunal found that Ms Balacki experienced symptoms of her underlying condition at work and also experienced it outside work and that her pain was a consequence of her condition and not an aggravation of it.
In the Applicant’s case, it was well established on his own evidence that he had experienced flare ups of pain in his lumbar spine over many years associated with non-work-related activities such as gardening, prolonged sitting and sleeping in a funny position. The Applicant stated in his evidence that he did not initially seek treatment for the tightness and pain he experienced on 16 November 2018 because he was used to dealing with flare ups in his back. Dr Hwang confirmed this in his first report where he noted that the Applicant had a history of chronic back pain which is usually manageable with occasional flareups.[41]The Applicant’s evidence was that his symptoms developed gradually over the weekend after he noticed some stiffness on completing his day’s work on Friday 16 November 2018, but he didn’t think much of it.
[41] T16, p 106.
The medical evidence did not establish that the symptoms suffered by the Applicant on and after 16 November 2016 resulted in any identified worsening of his underlying degenerative condition. While Dr Thompson described the symptoms as exacerbation of chronic lumbar disc degeneration,[42] he did not identify any change to the underlying condition and he acknowledged the short-term nature of the symptoms. Dr Hwang opined in his third report:
Noting his extensive pre-existing condition, the optimal ergonomic set up at work, and the absence of any specific precipitating factor, or any objectively notable suboptimal condition at work, one would have to conclude that Mr Hovenden’s episode of back pain has simply developed spontaneously. Indeed, spontaneous onset of lower back pain with spasm is not uncommon in the general population, particularly in the case of someone with a well established history of back pain. In the absence of work, I consider that it would be just as likely that Mr Hovenden would have developed acute lower back pain with spasms if he had been undertaking normal day-to-day activities and not been at work that day.[43]
[42] T11, p 25.
[43] Tribunal book, p 145.
On the basis of this evidence, the Tribunal is not satisfied, on the balance of probabilities, that the Applicant aggravated his degenerative spinal condition in performing his duties on 16 November 2018. The Tribunal is satisfied that the symptoms the Applicant suffered over the period from 16 November 2018 to January 2019 (when the Applicant said he had recovered) were a consequence of his condition and were consistent with the flare ups he had previously experienced outside of work.
Contribution of employment
As to the second question, whether the Applicant’s experience of pain was contributed to, to a degree that is substantially more than material, by his employment, s 4(2) of the Act provides that the Tribunal may take 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.
The Applicant’s employment with Services Australia commenced in 2006, but it was not asserted by the Applicant that his ‘injury’ was the result of a gradual progression over time. He attributed the ‘injury’ to the use of the SIMS desk on 16 November 2018. The Applicant’s pre-existing degenerative spinal condition was well-established, and the evidence showed that the Applicant had a pre-disposition to flare ups in his lower back and that he had experienced flare ups previously when undertaking activities outside work.
In assessing these and other relevant factors, the Tribunal puts considerable weight on Dr Hwang’s third report. In that report Dr Hwang concluded, having been appraised of the relevant facts regarding the SIMS desk, that:
I … do not consider that his employment or any other workplace factors contributed to the development, aggravation, exacerbation, acceleration or progression of his back condition.[44]
[44] Ibid.
Dr Hwang is a specialist occupational physician who examined the Applicant and objectively assessed the Applicant’s workplace. The opinion stated in Dr Thompson’s reports, that the Applicant exacerbated his degenerative condition at work, was not based on an assessment of the workplace and the ergonomic considerations which Dr Hwang took into account. It was likely based on the anecdotal evidence of the Applicant. Dr Hwang’s objective assessment of the SIMS desk, which was based on actual measurements, is in contrast to the Applicant’s incorrect view that the SIMS desk was substantially lower than the fixed desk he had used previously. In addition, the Applicant’s evidence was that he did not pay much attention to his symptoms when he ceased work on Friday 16 November 2018, but they progressed over the course of the weekend.
On the basis of this evidence, the Tribunal is not satisfied, on the balance of probabilities, that the Applicant’s symptoms were contributed to, to a degree that is substantially more than material, by his employment.
The Tribunal is therefore not satisfied that the Applicant’s experience of lower back tightness and pain on 16 November 2018 meets the definition of a disease.
Was the tightness and pain experienced by the Applicant an injury (other than a disease)?
An injury (other than a disease), is defined in s 4 of the Act as a physical or mental injury arising out of, or in the course of, the employee's employment. The reference to mental injury is not relevant to this case.
Did the Applicant suffer a physical injury (other than a disease)?
The Full Federal Court in Bailey v Broadsword Marine Contractors Pty Ltd[45] confirmed the centrality of a sudden and ascertainable or dramatic change in a person’s physiological condition as a criterion of injury which was recognised by Gleeson J and Kirby J in Kennedy Cleaning and confirmed by the High Court in May.
[45] [2017] FCAFC 219 at [101].
In the Applicant’s case there is no medical evidence that he suffered an ascertainable or dramatic change in his physiological condition. The Applicant’s own evidence was that he suffered a flare up similar to flare ups he had experienced many times previously and that it resolved itself within a few weeks. The Tribunal is therefore not satisfied on the balance of probabilities that the Applicant suffered an injury within the meaning of the Act.
Was the tightness and pain experienced by the Applicant 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 ?
It is not asserted that the Applicant’s degenerative spinal condition arose out of his employment with Services Australia. It clearly predated his employment. For the purpose of this analysis the Tribunal does not need to decide whether the Applicant’s degenerative spinal condition was a physical injury (other than a disease) which arose otherwise. As stated in [45] above, the Tribunal is not satisfied on the balance of probabilities that the Applicant suffered an aggravation of his degenerative spinal condition on 16 November 2018. Rather, it is satisfied that the tightness and pain experienced by the Applicant at that time were a consequence of his degenerative condition and were consistent with the flare ups he had previously experienced outside of work.
For these reasons the Tribunal is not satisfied that the Applicant suffered an aggravation of a physical injury (other than a disease), whether or not the injury arose out of, or in the course of, his employment with Services Australia.
CONCLUSION
For the reasons stated, the Tribunal is not satisfied that the tightness and pain experienced by the Applicant on and after 16 November 2018 was an injury within the meaning of the Act.
DECISION
The Tribunal affirms the decision under review.

59. I certify that the preceding 58 (fifty-eight) paragraphs are a true copy of the reasons for the decision herein of Member R West

.....[sgd].......................................
Associate
Dated: 21 September 2020

Dates of hearing:

7 July 2020

Applicant:

By video

Advocate for the Respondent:

Ms N Richards

Solicitors for the Respondent:

Australian Government Solicitor

Dates of hearing:	7 July 2020
Applicant:	By video
Advocate for the Respondent:	Ms N Richards
Solicitors for the Respondent:	Australian Government Solicitor