McGowan and Telstra Corporation Limited (Compensation)

McGowan and Telstra Corporation Limited (Compensation) [2017] AATA 1053 (7 July 2017)
Division:GENERAL DIVISION
File Number: 2015/5642
Re:Michael McGowan
APPLICANT

AndTelstra Corporation Limited
RESPONDENT

DECISION
Tribunal:K. Parker, Member
Date:7 July 2017
Place:Melbourne

The Tribunal affirms the decision of Telstra Corporation Limited to deny liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of Mr Michael McGowan's claim for compensation for an injury to his cervical spine.
....................................[sgd]....................................
K. Parker, Member
WORKERS’ COMPENSATION – claim for injury to cervical spine – disease or injury – whether pre-existing degenerative condition was an ailment - whether there was an aggravation of an ailment - whether liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 to pay compensation – contribution to a significant degree – whether the exclusion in s 53 of the Safety, Rehabilitation and Compensation Act 1998 applies – whether employee gave notice of injury to employer as soon as practicable – decision affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth); ss 14, 53
Cases
Comcare v Power (2015) 238 FCR 187
Frosch v Comcare [2004] FCA 1642
REASONS FOR DECISION

K. Parker, Member
7 July 2017

Mr Michael McGowan (Mr McGowan) lodged a claim with Telstra Corporation Limited (Telstra) for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) on 1 May 2015 in respect of a reported injury to his cervical spine.
On 14 July 2015, Telstra decided that Mr McGowan was not liable to pay compensation under s 14 of the Act, on the basis that “he was suffering from degenerative changes to the cervical spine which was an ailment” and “his employment with Telstra did not significantly contribute to his claimed condition”. On 4 September 2015, Telstra reconsidered this decision at the request of Mr McGowan and affirmed it.
Mr McGowan has applied to this Tribunal for a review of Telstra’s decision dated 4 September 2015. Telstra has also contended that the Act did not apply to Mr McGowan by operation of s 53 of the Act, because he did not give notice to Telstra as soon as practicable after he became aware of it. The Tribunal is not satisfied that this was so, for the reasons set out in this decision.
The Tribunal is not satisfied that Mr McGowan’s claimed injury was an injury (other than a disease) or an aggravation of an injury (other than a disease). The Tribunal finds that Mr McGowan sustained an aggravation of an ailment. However, the Tribunal is not satisfied that his employment at Telstra contributed to such aggravation to a significant degree and for this reason, the claimed condition is not a disease as defined by s 5B of the Act.
Consequently, the Tribunal affirms the decision of Telstra on 4 September 2016 to deny liability under s 14 of the Act regarding Mr McGowan’s claimed injury to his cervical spine.
BACKGROUND
Mr McGowan is a 52 year old right-hand dominant man.
Mr McGowan holds a Bachelor of Engineering from the University of Melbourne. After he completed his engineering degree he worked as a patent attorney for one year. Subsequently, Mr McGowan worked as a project engineer, quality engineer and quality manager for various companies, up until the age of 37.
In 2001, Mr McGowan moved to King Island, Tasmania, and built a house. He also did some contracting work while on King Island for a cheese factory; worked on an environmental program and also worked for Coles Myer Pty Ltd.
In 2006, Mr McGowan moved back to Melbourne and did some contracting work for the Department of Defence. He was also the owner builder of his own home. He commenced work for PricewaterhouseCoopers Australia in 2011.
In 2012/2013 for a short period, Mr McGowan performed contract work for Telstra.
Subsequently, on 28 July 2014, Mr McGowan commenced employment in a full-time permanent position at Telstra, in the procurement area, in the role of Continuous Improvement Lead (Band 2). Mr McGowan’s role at Telstra was essentially office-based work, involved people management, preparing documents on a computer and attending meetings. He reported to Mr Isaac McFadzean. Mr McGowan’s base salary (excluding superannuation) was $140,000 per annum.
Mr McGowan gave evidence that his work at Telstra was particularly busy in December 2014 leading up to Christmas. He said that he was required to work intensely at his workstation for a three-day period from Tuesday, 24 February 2015 to Thursday, 26 February 2015 inclusive, to prepare a power point presentation for a strategy proposal to be presented to Telstra’s senior management team.
Mr McGowan claimed that he woke up on the morning of Friday, 27 February 2015 and felt severe pain in his neck radiating down to his right arm. Mr McGowan contended that he sustained a compensable injury at this time, for which he registered the incident with Telstra on 6 March 2015 and lodged a claim for compensation on 1 May 2015.
Mr McGowan did not cease work as a consequence of the claimed injury. Subsequently, he resigned from this position at Telstra with effect from 1 May 2015.
STATUTORY FRAMEWORK AND ISSUES
Section 14(1) of the Act provides that liability to pay compensation in accordance with the Act arises in respect of an injury suffered by an employee, if the injury results in death, incapacity for work, or impairment.
“Injury” is defined in s 5A of the Act. It 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.
“Disease” is defined in s 5B of the Act. It means an ailment suffered by an employee or 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.[1]
[1] S 5B(1) of the Act.
“Significant degree” is defined in s 6 of the Act and means a degree that is substantially more than material. In determining whether the ailment or aggravation of it was contributed to by a significant degree by the employment, without limitation, the following matters may be taken into account:[2]
(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.
[2] S 5B(2) of the Act.
“Ailment” is defined in s 4 of the Act. It means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
By operation of s 53, the 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 as soon as practicable after the employee became aware of the injury. Section 53(3) of the Act provides that even if this timing requirement is not met, the notice will be considered sufficient if the late giving of the notice did not cause prejudice to the relevant authority or that it was given to the relevant authority belatedly as a result of ignorance, from a mistake or from any other reasonable cause.[3]
[3] S 53(3) of the Act.
Relevantly, the Tribunal considers that the issues for determination in this application are:
(a)Whether Mr McGowan suffered an injury that resulted in incapacity for work or impairment for which Telstra was liable to pay compensation in accordance with s 14 of the Act in respect of his cervical spine. The following sub-issues arise:
(i)Was the claimed condition a disease, an injury other than a disease or an aggravation of an injury other than a disease?
(ii)If it was a disease, was it an ailment or aggravation of an ailment?
(iii)If it was an aggravation of an ailment, was it contributed to, to a significant degree, by Mr McGowan’s employment at Telstra?
(b)Whether the Act is otherwise excluded from applying to Mr McGowan by operation of s 53 of the Act, because he did not give notice to Telstra as soon practicable after he became aware of it.
MR MCGOWAN’S EVIDENCE
Pre-existing neck condition
Mr McGowan gave evidence that he had previously experienced stiffness in his neck almost 20 years ago. He said it had been a randomly occurring thing which he had addressed with physiotherapy treatment. Mr McGowan said that it was exacerbated by stress and “multiple” periods of time sitting at a work station. He said the last major episode he had experienced was before he started work at Telstra in 2014. He said that by the end of June 2014, it had totally disappeared. He said it did not reoccur until December 2014. He said that he had “learnt what to look out for”.
Work environment in 2014/2015
Mr McGowan gave evidence that he had two “direct reports” when he was working at Telstra in 2014/2015. He said his first direct report started working with him at the end of November 2014 and his second direct report started working with him in the second week of December 2014. He said that in the period leading up to December 2014 an employee, who was supporting him, was required to move to another work area.
Mr McGowan said he spoke to Mr McFadzean about the stress levels in December 2014 and told him that he was experiencing a sore jaw from grinding his teeth. He said Mr McFadzean’s response was, in effect, that he needed to “suck it up” and that he reminded Mr McGowan that he was on probation and needed to focus on giving a good impression. Mr McGowan said that later in December, Mr McFadzean was “not generally available for catch ups”.
Emergence of general neck stiffness in December 2014
Mr McGowan gave evidence that in the fortnight before the Christmas break in December 2014, he noticed “a slight pain in his neck”.[4] He said his work commitments at that time did not allow him to make a physiotherapist’s appointment.
[4] Refer paragraph [1.5] of the Applicant’s Statement of Facts, Issues and Contentions dated 15 September 2016 (Mr McGowan’s Statement).
Mr McGowan said that he did not report the stiffness he was experiencing in December 2014 because at that stage, it was “only minor stiffness”. He said he had four weeks off work (on leave), due to commence at Christmas, which he spent on King Island. He said his neck became worse and he saw a physiotherapist on King Island. He said that when he returned to Melbourne, he went to his usual Melbourne physiotherapist, Mr Darren Jenkins, for continued treatment.
Mr McGowan gave evidence that, at that time, the symptoms were manifesting in the same way that they had previously. He said when the same thing had happened previously, the physiotherapist had addressed it and his symptoms had improved. He said that by the end of February 2015, he was still seeing his physiotherapist weekly.
Development of a PowerPoint presentation for the Continuous Improvement Strategy in February 2015
Leading up to February 2015, Mr McGowan led a process of developing a “Continuous Improvement Strategy” (Strategy) for Telstra. He said his team was building up to make a presentation to Telstra’s senior management team to seek endorsement of the Strategy. Mr McGowan said this presentation of the Strategy was the culmination of the previous three to four month’s work on the Strategy.
A meeting took place on Monday, 23 February 2014 attended by, at least, Mr McGowan and Mr McFadzean. It was decided at this meeting that the presentation had to be prepared and finalised by the end of that week. Mr McGowan expressed his concern to Mr McFadzean that he thought it was a lot to prepare that week. Mr McFadzean’s response was that “it had to be done” and he said to “drop whatever you need to drop”’.
Mr McGowan gave evidence that during that week he was continuously at his desk and aware of the pressure to get everything done. He said that normally there was a degree of meetings and workshops throughout the work day which would provide for breaks from working at his work station.
Initially at the hearing, Mr McGowan gave evidence that he was working eight and half to nine hours per day during the week commencing 23 February 2015 and only took short breaks to get some lunch. He said he was stressed and was leaning into the computer, which he said he now understood he should not do. However, before the second day of the hearing of this application, Telstra was able to obtain Mr McGowan’s security pass access data which showed the precise times that he entered or exited the Telstra building during the week. This data was provided to Mr McGowan by Telstra on the second day of the hearing.[5] Once Mr McGowan reviewed that data, he accepted that his recollection about the hours he worked during the week commencing 23 February 2014 was incorrect and that on the Tuesday and Thursday of that week, he arrived at the office or departed the office, at times which allowed him to do both the “drop-offs” and “pick-ups” of his child to and from school.
[5] The hearing was stood down temporarily to allow Mr McGowan time to review the data.
Consequently, Mr McGowan accepted that he worked a total of approximately 38 hours that week, comprising:
(c)On Monday, 23 February 2015, he worked 8 hours and 30 minutes;
(a)On Tuesday, 24 February 2015, he worked 6 hours and 30 minutes;
(b)On Wednesday, 25 February 2015, he worked 9 hours and 40 minutes;
(c)On Thursday, 26 February 2015, he worked 5 hours and 30 minutes; and
(d)On Friday, 27 February 2015, he worked 8 hours.
Ergonomic assessment of work stations in February 2015
At the start of February 2015, Mr McGowan said he told Mr McFadzean that one of Mr McGowan’s direct reports, Ms Alejandra Zapata, had experienced lower back pain. He said that Mr McFadzean’s response was: “that is just pre-existing”. Mr McGowan said he acknowledged to Mr McFadzean that it might have been and at that point, he said to Mr McFadzean that while he (Mr McGowan) had been experiencing minor neck pain, he had not raised it as an issue officially but instead, had organised his own physiotherapy. He said that after he told Mr McFadzean this, Mr McFadzean did not ask Mr McGowan to register his neck pain as an injury. Mr McFadzean was not called by Telstra to give evidence so Mr McGowan’s evidence about this is unrefuted.
Mr McGowan said that he had previously worked as an Occupational Health & Safety (OHS) Manager, so when Ms Zapata reported a problem with her lower back he wanted to check if their team was working in a safe work environment. Mr McGowan said that with Mr McFadzean’s approval, he submitted an internal request for an ergonomic review of Ms Zapata’s work station.
Mr McGowan gave evidence that Mr Cameron Smith, who as at February 2015 was an Injury Management Team Leader at Telstra in Melbourne, in response to his request, assessed Ms Zapata’s work station and also other work stations on his floor, including Mr McGowan’s work station.
Mr McGowan expressed his view at the time to Mr Smith that he did a “great job” with the assessments. He said that Mr Smith advised him that he was sitting back too far from the work station which caused him to stretch his arm out too far to reach the mouse. He said that Mr Smith told him he needed to bring his seat further forward. He said that Mr Smith also identified that Mr McGowan was leaning forward into the monitor when he was stressed and that he should avoid doing that. He said that Mr Smith also recommended that Mr McGowan should start using a document holder and that this recommendation was implemented. Mr McGowan said he did not say anything to Mr Smith about the symptoms he was experiencing in his neck because at that time, he considered that “it was on the mend”.
Reported onset of severe pain in Mr McGowan’s neck on Friday, 27 February 2015
When questioned in relation to the timing of the onset of the injury, Mr McGowan said he first felt severe pain in his neck on the morning of Friday, 27 February 2015, when he went to use the mouse. He said the pain was totally different from and more painful than anything he had experienced before and that he could not use the mouse at all. He said that he had soreness in his neck when he moved his head upward and downward. He explained that his neck symptoms in the past were different as they had occurred when he rotated his head left and right. He said that he believed his work at Telstra leading up to that day had contributed to the new symptoms he was experiencing.
Mr McGowan said that he tried to report the injury that same day. He said he immediately brought it to Mr McFadzean’s attention, and that Mr McFadzean told him to register it on HIRO, being Telstra’s internal injury reporting system on the Telstra intranet. Mr McGowan said that he attempted to get into the HIRO system but that it was not operational. Mr McGowan said that he emailed Mr Smith to tell him that he could not get into the system. Mr McGowan said that Mr Smith informed him that the system was down. Mr McGowan said that he continued to check periodically and that on the first day that he found the Telstra system to be operational; he registered his injury by submitting a HIRO report as detailed in paragraph [40].
Mr McGowan gave evidence that his condition got worse over the weekend that followed, (28 February 2015 and 1 March 2015). Mr McGowan gave evidence that initially, he could not sleep at night. He said that he went to see Mr Jenkins on 2 March 2016, as he had “a lot of faith” in physiotherapy treatment. Mr McGowan said he came into work on Monday, 2 March 2015 but he could not use his right hand for the mouse at work and started using his left hand only. Mr McGowan gave evidence that he did not reduce his number of hours of work, although, he thought that the injury had “probably impacted on his productivity”.
Written notification of injury to Telstra – HIRO incident/hazard report
Mr McGowan completed and submitted a HIRO incident/hazard report to Telstra’s online system on Friday, 6 March 2015.[6]
[6] Refer T-Documents T5. T-Documents are the documents that were lodged with the Tribunal by Telstra as required by s 37 of the Administrative Appeals Tribunal Act 1975 (Cth).
Second ergonomic assessment in mid-March 2015
Mr McGowan gave evidence that Mr Smith undertook a further review of his workstation in mid-March 2015. Mr McGowan said that while this was taking place, he asked Mr Smith whether Telstra would pay for his physiotherapy, at which time Mr Smith told him about Injury Assist. Mr McGowan said his symptoms had started to improve and that he was using his left hand.
Mr McGowan said that by mid-to-late March 2015, he had started sleeping throughout the night again. He said that at the end of April 2015, his physiotherapist had told him to take breaks at work every hour. Mr McGowan said that at that time all he was expecting from Telstra was for his physiotherapy costs to be covered, as he was “hoping to push through”. Mr McGowan said he did not undertake any occupational therapy. He said he asked his physiotherapist whether he should go to a doctor to get a scan. He said his physiotherapist told him that the information from a scan was not going to change the treatment plan and based on that advice, Mr McGowan said he “didn’t do anything”.
Change to Mr McGowan’s role and workload in 2015

Mr McGowan gave evidence that in March 2015, the meeting went ahead with Telstra’s senior leadership team about the Strategy. He said the outcome of the meeting was that Telstra did not adopt the Strategy but instead adopted some of its tactical initiatives. Mr McGowan was given the responsibility to “project manage” one of those projects. He said one of Mr McGowan’s direct reports departed at the end of March 2015 and it was decided not to replace that staff member.
Mr McGowan said he spoke to Mr McFadzean to say that he was not happy with the change in his role and the increased workload. He said that Mr McFadzean told him that it was not within his scope to do anything about it and that this was a “higher pay grade decision”.
Mr McGowan said that he decided to resign from his job due to the change in the nature of the role, the removal of resources and because he was still required to do his “day job” of the procurement area. Mr McGowan said that this was not the “big picture stuff”, and with the resources going, he did not feel it was constructive to be under that much stress with his neck condition.
Lodgement of claim for compensation
Mr McGowan said that when he decided to lodge a claim, he went to an Injury Assist doctor, Dr Rakesh Bhaskar, in mid-April 2015. Mr McGowan said that Mr Bhaskar ordered the X-ray which revealed a “reduced gap between the spine”. Mr McGowan gave evidence that he lodged a claim electronically on 1 May 2015 (the same day as he resigned) on Telstra’s intranet system and subsequently lodged a paper copy on 16 May 2015.
A claim for compensation form in relation to Mr McGowan was tendered into evidence.[7] In this form, Mr McGowan was required to answer a number of questions about the cause of the injury:
What started the chain of events that led to your injury or illness?
Keyboard work created low level pain in neck and shoulders in December 2014.
Intense keyboard & mouse work in February 2015 caused severe pain.
What action, exposure or event happened to cause your injury or illness?
3 days intense powerpoint presentation
What actually injured you, or made you ill?
Preparing powerpoint presentations at work station.
[7] Refer T-Documents T11.
Subsequent employment and activities after finishing work at Telstra
Mr McGowan said that after ceasing work at Telstra on 1 May 2015 he spent the following 14 months providing services on a private basis as a life coach. He said he saw about five to six clients per week, which involved a total of about eight to nine hours of work per week. Mr McGowan said he had not been involved in any other home building activities during this period. McGowan said he started yachting during this time and went yachting weekly during the summer.
Mr McGowan said that in July and August 2016 he was working two full days per week for a contractor, Circa, and his role involved developing electronic diagrams. He finished up with Circa in November 2016. Mr McGowan said that it had taken him a while to build up his confidence and that he should have been provided with occupational therapy support while he was at Telstra.
At the time of the hearing, Mr McGowan said he was back working at Telstra on a contract basis.
MR SMITH’S EVIDENCE
Telstra tendered into evidence a statement by Mr Smith, referred to in paragraph [35] above, which was signed by him on 16 June 2016.[8] Mr Smith is currently a Health Safety and Environment (HSE) Advisor employed on a full-time basis at Telstra. Mr Smith also gave oral evidence at the hearing.
[8] Refer Exhibit “R3”.
Of note, Mr Smith gave evidence as follows:
(a)A request came through from Mr McGowan on 19 February 2015 for some work station assessments to be undertaken, which was organised for 25 February 2015. An email was sent to Mr McGowan recommending that everyone (in his team) complete a self-assessment online tool which would identify who needed an assessment in particular;
(b)On 25 February 2015 the work station assessments were completed. The work station checklists were not given to Mr Smith. Mr Smith said he took notes as he undertook the assessments but they had been discarded. He looked at each work station and made some adjustments, such as monitor height, chair height, keyboard placement and height etc. He said when he identified for a particular work station a significant need, such as a requirement for additional equipment; he would make a note of this and follow it up by email;
(c)Mr Smith confirmed by email the additional equipment needs of Mr McGowan (i.e. a document holder) and the some of the other staff. Ms Smith said it was then up to the respective staff supervisors to arrange to procure the equipment and his email provided the hyperlinks to do so;
(d)Mr Smith was certain that on Wednesday, 25 February 2015, Mr McGowan did not mention any concerns about him having difficulties or problems;
(e)Mr Smith undertook a further ergonomic assessment of Mr McGowan’s work station on 16 March 2015 following the filing of the HIRO report. Mr Smith said he recalled Mr McGowan mentioning to him that day that he had a pre-existing injury. Mr Smith said he emailed Mr McGowan that day to provide him with the link to a workers’ compensation form;
(f)On 16 March 2015 Mr Smith sent an email to Mr McFadzean advising that he had met with Mr McGowan and had reviewed his workstation;
(g)Mr McGowan emailed Mr Smith on 13 April 2015 advising that his injury was proving “very slow to fix” and asking whether he needed to fill out the workers’ compensation form. He also requested details about the Injury Assist program;
(h)Mr Smith responded the following day by providing the link for Injury Assist and to ask about Mr McGowan’s symptomatology, how he was managing at work and whether Mr Smith needed to liaise with Mr McGowan’s physiotherapist. Mr McGowan responded by email to Mr Smith on 14 April 2015 and they had a subsequent telephone discussion on 15 April 2015. It was mentioned that an MRI was likely and that there was a disc problem but that Mr McGowan was managing OK at work.
MEDICAL EVIDENCE
Mr Gerard Powell – orthopaedic surgeon
Mr McGowan was medically examined by Mr Gerard Powell, Consultant Orthopaedic Surgeon, on 29 April 2016. Mr Powell prepared two reports dated 6 May 2016[9] and 2 March 2017.[10] In his report dated 6 May 2016, Mr Powell stated as follows:
(a)Mr McGowan reported that he first started to have trouble with his neck when he was in his early 30s. He told Mr Powell that he had intermittent episodes of progressive stiffness in the neck which would make it difficult for him to turn his head from side to side when driving and a build-up of gradual increasing stiffness with associated muscle spasms. He told Mr Powell that physiotherapy had been successful in managing the symptoms over the years. Mr McGowan also told Mr Powell that he had a pre-existing history of generalised peripheral neuropathy, which meant that all of his fingers and toes were a little numb constantly;
(b)Mr McGowan told Mr Powell that in December 2014, he was experiencing some stiffness in his neck – “it was really a niggle” he said, but he had “an awareness of increasing stiffness”;
(c)Mr McGowan reported that he developed severe pain in his neck, radiating down into his right arm, on or about 25 February 2015. He stated that the pain came on gradually over a 24-48 hour period. Mr McGowan told Mr Powell he did not see a general practitioner for this but had seen his regular physiotherapist, Mr Jenkins, for management for about eight years “because of pre-existing symptoms of intermittent neck stiffness”;
(d)Mr McGowan had been treated with neck massage and manipulation. He told Mr Powell that he might have taken one or two anti-inflammatories but “as a rule, did not take medication”;
(e)Mr McGowan told Mr Powell that his symptoms had improved but at Easter in April 2015 he drove to New South Wales and his right arm symptoms had flared up again. He told Mr Powell that over approximately three or four months his “symptoms of right arm pain settled down completely and also his neck pain returned to its pre-injury level”;
(f)Mr McGowan had identified to Mr Powell that leaning forward at his desk or reaching forward for his mouse aggravated his symptoms of neck pain and arm pain. Mr McGowan did not provide Mr Powell with a history of ever having had a traumatic injury to the neck.
[9] Refer Exhibit “R1”.
[10] Refer Exhibit “R2”.
Mr Powell opined that:
(a)Examination of Mr McGowan’s cervical spine showed a normal cervical lordosis. His spine was not tender and there were no muscle spasms. There was generalised restriction of cervical range of movement – normal flexion but extension restricted to 20 degrees; loss of 10 degrees of right rotation compared to the left; and mild restriction on both sides of lateral flexion. There were no focal neurological deficits. There was subjective slight sensory loss bilaterally in a glove distribution and Mr McGowan’s reflexes were hyporeflexic, but symmetrical.
(b)The X-ray of Mr McGowan revealed widespread cervical degenerative change; reversal of the cervical lordosis at C5/6 and degenerative change of the C2/3, C3/4, C4/5 and C5/6 disc spaces. The X-ray showed chronic degenerative changes at the uncovertebral joints with osteophyte formation from the C2/3 level to the C5/6 level. There was some anterior bridging osteophyte seen at C5/6.
Mr Powell concluded that:
(a)Mr McGowan was a man with a 15-year history of neck problems due to cervical spondylosis. He had episodes in 2009 for spasm and stiffness consistent with diagnosis of cervical spondylosis.[11] He had moderately advanced degenerative changes seen at C2/3 to C5/6 with some foraminal stenosis at C5/6 and at C3/4 on the right side.
(b)Mr McGowan presented with an episode of right-sided brachialgia[12] in February 2015. In the setting of cervical spondylosis, Mr Powell opined that prolonged periods of cervical flexion could aggravate pain and lead to brachialgia. He said this was consistent with a diagnosis of degenerative spondylosis of the cervical spine, and was likely aggravated by postural issues working at his work station at that time. The aggravation lasted from February 2015 to June 2015 and had returned to its pre-injury state.
(c)Mr Powell said he could identify no other contributing factors apart from prolonged sitting at a computer station, cervical flexion and reaching with the right arm that contributed to the aggravation of Mr McGowan’s cervical spondylosis. However, in his supplementary report dated 2 March 2017, Mr Powell clarified that his conclusions on causation hinged entirely upon the history provided by Mr McGowan at the time of the medical examination.
[11] Mr Powell referred to the entry in the treating physiotherapist’s clinical notes on 30 September 2013 recorded a 15-year history of episodic cervical-locking episode that was helped by physiotherapy.
[12] Brachialgia is the medical term for pain produced by a trapped nerve in the neck leading to pain radiating down the arm.
At the hearing, Mr Powell gave evidence that:
(a)He had practised as an Orthopaedic Surgeon since 1996;
(b)He obtained a Degree in Medicine from the University of Melbourne in 1987 and qualified as a Fellow of the Royal Australian College of Surgeons as an Orthopaedic Surgeon in 1996;
(c)His other qualifications included: Member of the Royal Australian College of Administrators (1996); a Fellow of Australian Orthopaedic Association (2000); and Certified Independent Medical Examiner of the American Board of Medical Examiners (2013);
(d)When taking a history of the symptoms from Mr McGowan during the examination, he said he was informed by Mr McGowan that he had been preparing a PowerPoint presentation and that the pain came on gradually; not that he had woke up one morning with pain. In accordance with usual practice, Mr Powell said he recorded the date of injury on his report, based on the history he had obtained from Mr McGowan who had told him that he had experienced the pain on 25 February 2015;
(e)When questioned about whether Mr McGowan’s long-standing neuropathy[13] might involve radiculopathy[14], he said while this may be so in some cases, it would not be typical if a person had a well-established peripheral neuropathy, in which case the symptoms were usually felt in the periphery (because of changes in the lower, peripheral neurons). Mr Powell explained that radiculopathy meant pain or weakness in distribution of a nerve root, as opposed to a peripheral nerve, so that they were distinct from each other.
[13] Peripheral neuropathy is a disorder of the nerves that carry information to and from the brain and spinal cord. This can produce pain, loss of sensation and weakness.
[14] Radiculopathy – a condition in which one or more spinal nerves, e.g. C6 are affected and do not function properly. The emphasis is on the spinal nerve root.
(f)In his opinion, Mr McGowan’s episode of right-sided C5/6 brachialgia was consistent with the radiographic imaging and the diagnosis of degenerative spondylosis of his cervical spine, which he said was likely aggravated by the postural issues working at his work station at the time.
(g)There are anatomical changes within Mr McGowan’s cervical spine that were pre-existing. The result of the degenerative changes meant that the bone of the vertebra and the disc between the vertebrae had become more pronounced. This meant that the exiting nerve roots passing through the canal may become compressed and if the nerve root is irritated and it may give rise to pain in the distribution of that nerve root.
(h)In Mr Powell’s opinion, there were no acute changes on the imaging of Mr McGowan’s cervical spine that suggested any change in the anatomy that would account specifically for the symptoms described by Mr McGowan that he experienced in February 2015. He said that it was part of the natural history of cervical spondylitis that from time to time there may be irritation of the nerve roots because of the reduced spacing in which they live, which give rise to episodes of pain (or radiculopathy). Usually, this was part of an inflammatory process taking place and the inflammation may or may not be related to a particular activity.
(i)Mr Powell confirmed that his conclusions in his first report were based on the history given by Mr McGowan. He said that Mr McGowan associated a temporal relationship between the development of his neck symptoms with his work activities over a period of 24 to 48 hours. Mr Powell stated that while this temporal relationship may well have provided some aggravation of the underlying degenerative change, he also made it clear that this was the only theory proffered to him.
(j)When questioned about whether there was any evidence of a disc bulge that could have been present at the time of his complaints and symptoms in February 2015, as had been suggested by Mr Jenkins, Mr Powell explained that it was very common for someone of Mr McGowan’s age to have bulging discs. He said that this was a “normal anatomical variation” found in 50% of the population by middle age. Mr Powell said that Mr McGowan’s X-rays showed that for him it was chronic because where disc bulging was present for some time, the disc itself ossifies (as shown in the X-ray).
(k)When questioned, Mr Powell stated that the activity of sitting at a desk, using a mouse with one arm extended, would not cause a disc to bulge.
(l)When questioned by Telstra’s counsel about whether use of a mouse on a desk would be very likely to cause symptoms of the kind Mr McGowan suffered (based on the appearances of Mr McGowan’s X-ray), Mr Powell said that it was “no more likely than any other everyday use of the arms and activities of everyday living”. He said that Mr McGowan’s symptoms were consistent with “someone with neck problems going back a decade”.
(m)When questioned about the sort of things could cause an aggravation of a pre-existing degenerative cervical spine condition, Mr Powell opined:
Trauma would be one thing. Repetitive activity that took you to the extreme of the motion of the neck – (outside expected range) – for instance, painting your ceiling – constantly looking up, that would cause it too.
Sometimes it can be seasonal – cold weather may exacerbate symptoms – viral infection can sometimes make joints ache (arthralgia). In terms of the activities [Mr McGowan] mentioned to me and whether I would typically identify them as causing neck complaints – not particularly so.
On the balance of probability, the onset of brachialgia was more likely to be due to the natural history of the pre-existing degenerative complaint than using a mouse at a work station, as this is what happens when you have that pre-existing thing.
Then it comes down to whether it is a major contributing factor – it is bit of a long bow to draw.
…
More probable that it represented part of the spectrum of the history of the natural condition.
(n)When questioned, Mr Powell opined that muscle stress or tense muscles may cause neck and shoulder pain, but would not cause brachialgia.
Dr Rakesh Bhaskar – general practitioner
Mr McGowan was medically examined by Dr Bhaskar on 16 April 2015. In Dr Bhaskar’s report dated 16 June 2015, he opined:
(a)Mr McGowan complained of pain, which had been going on for several weeks, on the right side of the neck which was going down his arm. He received some physiotherapy but it did not improve his condition. He felt the pain when he stretched and when he was writing;
(b)Mr McGowan did not give any history of any injury to his neck or shoulder. He complained of tingling and numbness in the fingers. No neurological deficit was observed. Slight tenderness in the C4, C5, C6 area of the neck;
(c)An X-ray ordered and carried out on 17 April 2014 (as referred to above);
(d)The diagnosis was degenerative changes of cervical spine. The injury was not acute and had been there for some time. He said it was difficult to relate his injury in particular to his work without the workplace assessment; and
(e)A neurosurgeon’s opinion would be useful.
Mr Darren Jenkins - treating physiotherapist
A report issued by Mr Jenkins dated 29 May 2015 was filed in the T-Documents in this application.[15] The Tribunal notes Mr Jenkins was not cross-examined in relation to his opinions and observations about Mr McGowan as contained in that report or in his handwritten clinical notes, which were tendered as exhibits at the hearing.[16]
[15] Refer T-Document T17/58-60.
[16] Refer Exhibit “A1”.
The Tribunal notes in the report that Mr Jenkins stated that “Mr McGowan had previously presented to physiotherapy for treatment of strains to the cervical region causing local pain in the neck and upper thoracic/scapula region”. Mr Jenkins set out the following brief history of Mr McGowan’s “presentations for treatment”:
(a)2007 – right knee complaint;
(b)2009 – cervical spasm and thoracic stiffness;
(c)2010 – cervical spasm and thoracic stiffness. Right long-head biceps tendinosis;
(d)2011 – thoracic stiffness treatment and groin strain;
(e)2012 – cervical and lumbar stiffness. Left upper-cervical stiffness, with occasional right cervical spasm;
(f)2013 – right cervical stiffness and pain, mild lumbar and left hip stiffness and pain;
(g)2014 – hip stiffness and thoracic stiffness (reduced number of treatments this year).
On 29 May 2015, Mr Jenkins also reported as follows:[17]
Mr McGowan had been away over the Christmas/New Year break and reported increasing year end neck pain. He had sought treatment from a local physiotherapist on King Island. This was in a worsening state when I first reviewed Mr McGowan in January on his return, and over the subsequent treatments, progressed to include arm pain and neurological change by March 2015. This was a new symptom for Mr McGowan. His previous presentation prior to this presentation was 4 July 2014 for upper thoracic stiffness.
CONSIDERATION
[17] Refer T-Documents T17/58.
Section 53 – was notice of the injury given to Telstra as soon as practicable?

Telstra contended that the Act was excluded from applying to Mr McGowan’s injury by operation of s 53 of the Act, because Mr McGowan did not give notice in writing of the injury to Telstra as soon as practicable after he became aware of the injury.
In the decision of Frosch v Comcare [2004] FCA 1642, the Federal Court (Whitlam J) held as follows:
There is no prescribed form of notice for the purposes of s 53 of the Act. The specification required for such a notice is dictated by the words ‘injury’ and ‘employee’, which are defined respectively in s 4(1) and s 5 of the Act. In turn, those definitions direct attention to the definition of ‘disease’ in s 4(1), the extended meaning given by s 6 to ‘an injury arising out of or in the course of employment’, and the provisions relating to diseases in s 7. It is not necessary to set out the terms of those provisions. Their effect is that the essential information to be imparted under s 53 will be the nature of an injury or ailment and its connection with the employment. Assessing whether the contents of a document meet those requirements involves, in my opinion, a question of law. (emphasis added)
The Tribunal considers that Mr McGowan first gave notice in writing of the injury to Telstra when he lodged a HIRO incident/hazard report on Telstra’s intranet on 6 March 2015. There is some uncertainty as to when the injury occurred. Mr McGowan contends that his claim related to the severe pain he experienced when he woke up on the morning of 27 February 2015 giving rise to symptoms when moving his head upward or downward and radiating into his arm. However, the Tribunal notes that Mr McGowan did not give a history to Mr Powell of this sudden onset of severe pain on 27 February 2015 when he was examined by him, nor were there any notes suggesting that this occurred in Mr Jenkins’s clinical notes. Notably, Mr McGowan did not mention the sudden onset of pain on 27 February 2015 in the HIRO report completed by him a short time after on 6 March 2015.
The Tribunal finds that Mr McGowan experienced intense symptoms at the end of the week commencing 23 February 2015 which further intensified over the weekend to follow (28 February 2015 and 1 March 2015), causing him to see his physiotherapist on Monday, 2 March 2015. The Tribunal finds that there was not a sudden onset of pain on the morning of 27 February 2015 as subsequently claimed by Mr McGowan although the Tribunal does not consider that a lot turns on the precise date that Mr McGowan first experienced those symptoms. The Tribunal is satisfied that Mr McGowan verbally reported those new symptoms to his supervisor and Mr Smith as soon as he could after they arose. As soon as Telstra’s online reporting system was operational (or back online); he completed and lodged a written HIRO incident/hazard report on Telstra’s intranet on Friday, 6 March 2015.
The Tribunal considers that this HIRO report completed online by Mr McGowan on 6 March 2015 sufficiently notified Telstra in writing of the nature of an injury or ailment and its connection with the employment as soon as practicable and for that reason, the Act is not excluded from applying to Mr McGowan by operation of s 53 of the Act.
Specifically, Mr McGowan stated in the HIRO report as follows:
Incident/Hazard Details:
On the 24^th, 25^th and 26^th of February I had an intense period of preparing powerpoint presentations nad (sic) as a result started feeling neck pains which intensified over the weekend. The physio diagnosed a swollen disc between 5^th or 6^th and 7^th discs and no fine motor movements or stretching with my right arm.
…
Date/Time Occurred:
25/02/2015 12:00 AM
…
Description of Injury:
The physio diagnosed a swollen disc between 5^th and 6^th or 6^th and 7^th disc.
In Mr McGowan’s claim for compensation lodged on 1 May 2015, he stated that he was “injured or first noticed that he was ill” on “December 2014”. At the hearing, Mr McGowan complained that he was experiencing mild stiffness of his neck in the weeks leading up to Christmas 2014 and experienced pain when rotating his neck left and right. He was asked in cross-examination why he did not report those symptoms to Telstra in December 2014 when they arose. Mr McGowan responded that he did not see any value in doing so as “it would be regarded as pre-existing” and Telstra “did not seem interested”.
Mr McGowan was also asked about his four attendances to the physiotherapist within a one-month period while he was on leave over the January 2015 holiday period and to comment on that being suggestive of a significant increase in the symptomatology at that time. Mr McGowan explained that his symptoms at that time were consistent with the previous presentation of stiffness in his neck; they only related to the rotation of his neck left and right and that he did “not have faith that anyone would cover it, because it would be considered as pre-existing”.
The Tribunal notes and accepts the diagnosis by Mr Powell that Mr McGowan suffered an episode of brachialgia at the end of the week commencing 23 February 2015 and that this was an aggravation of Mr McGowan’s pre-existing degenerative cervical spine condition. For this reason, the Tribunal does not consider that the focus on why Mr McGowan was delayed in reporting the symptoms he was experiencing in December 2014 and in January/February 2015 leading up until the episode of brachialgia is relevant to this application. It was apparent that Mr McGowan himself regarded those symptoms to be related to his pre-existing condition, that they were relatively mild and that he would manage them himself in the usual way through physiotherapy treatment which he actively sought at the time.
The episode of the brachialgia at the end of the week commencing 23 February 2015 was different and Mr McGowan considered this to have been contributed to by his work at Telstra, motivating him to lodge the HIRO report on 6 March 2015. The Tribunal accepts that it was appropriate for Ms McGowan to have taken this approach, and does not consider the s 53 exclusion applies to him on account of the delay between him having experienced the mild neck stiffness in December 2014 and later in January/February 2015 leading up to the week commencing 23 February 2015 and the date of completion of the HIRO report on 6 March 2015.
Was Mr McGowan’s claimed condition a disease (i.e. an ailment or aggravation of an ailment), an injury other than a disease or an aggravation of an injury other than a disease?
It was not in dispute between the parties to this application that at the time of the injury, Mr McGowan had an underlying degenerative cervical spine condition. Mr Powell diagnosed this condition as degenerative cervical spondylosis. The Tribunal considers that this condition is appropriated characterised as a physical ailment seemingly of gradual development over the last 15 or so years.
Mr McGowan contended that at the end of the week commencing 23 February 2015, that he sustained a disc bulge which caused the symptoms of sudden pain when rotating the head upward and downward and radiating down his right arm. The diagnosis of a disc bulge was unsupported by any evidence provided by a qualified medical practitioner or medical imaging.
The Tribunal accepts the diagnosis of Mr Powell that Mr McGowan suffered an episode of brachialgia at that time. The Tribunal also notes the evidence by Mr Powell given about the high prevalence of disc bulges in people of a similar age as Mr McGowan and how a disc bulge in distinctly different from a herniated disc prolapse in terms of the significance of each of those conditions. The Tribunal accepts the evidence of Mr Powell that any disc bulge was unlikely to have caused the episode of brachialgia as experienced by Mr McGowan. The Tribunal considers that the brachialgia experienced by Mr McGowan constituted an aggravation of an ailment being the underlying pre-existing degenerative cervical spondylosis.
If it was an aggravation of an ailment, was it contributed to, to a significant degree, by Mr McGowan’s employment at Telstra?
A key matter to be determined by the Tribunal is whether the work activities engaged in by Mr McGowan during his employment at Telstra, and in particular, the three days spent by him from 24 to 26 February 2015 preparing the PowerPoint presentation of the Strategy, contributed to, to a significant degree, the episode of brachialgia (the aggravation of his underlying degenerative cervical spine condition) which arose at the end of that week and continued until about June 2015.
In the decision of Comcare v Power (2015) 238 FCR 187, the Federal Court (Katzmann J) examined the background to the introduction of the legislative requirement that the employment must have contributed to, to a significant degree, the contraction or aggravation of a disease for it to be compensable under the Act. Notably, at 203-205 (emphasis added):
89. Section 5B was inserted into the SRC Act by the Safety, Rehabilitation and Compensation and other Legislation Amendment Act 2007 (Cth) and commenced on 13 April 2007. The outline of the proposed changes in the Explanatory Memorandum to the Bill (EM) began with the following statement:
The Bill amends the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) to maintain the financial viability of the scheme — which has come under growing pressure from increasing numbers of accepted claims, longer average claim duration and higher claim costs, partly as a result of court interpretations of the legislation.
90. The first of the principal amendments identified in the EM was the amendment to the definition of “disease”. Its purpose, it was said, was “to strengthen the connection between the disease and the employee’s employment”. One of the examples of the “court interpretations of the legislation” which was implicitly criticised was the interpretation given by the Full Court in Treloar. The Regulation Impact Statement included in the EM referred under “[d]efinition of ‘disease’” to the italicised passage in the second reading speech extracted in the joint judgment in Canute (see above at [84]) and said:
It was the original intention of the SRC Act that an employee’s eligibility for compensation payments for a disease suffered by the employee should require a close causal connection between the employee’s work and the contraction or aggravation of the disease. The causality test requires an employee’s employment to have contributed in a “material degree” to the contraction or aggravation of the disease.
91. The Statement acknowledged what had been said in Canute but added that the comments made there might “reduce the erosion in the meaning” but were “yet to be tested at law”.
92. Several options were canvassed and their potential impacts assessed. The option of requiring employment to make a “significant contribution” to the contraction of a disease was recommended, amongst other reasons, because it was “considered to provide a stronger causal connection between an employee’s employment and the contraction or aggravation of a disease” than the existing test, even if “material degree” were defined. Concern was expressed that there was “a risk that this test would still allow for worker’s compensation eligibility in cases where employment has made only a minor contribution to the illness”.
93. There is no room for doubt that the purpose of the 2007 amendments was to strengthen the connection necessary between the employment and the contraction or aggravation of a disease. Including a definition of “significant” as “substantially more than material” makes this abundantly clear. In other words, it is insufficient that the contribution of the employment be “more than trivial”; it had to be substantially more than trivial. The Tribunal did not recognise this, despite its reference to the definition. The error the Tribunal made is similar to the one made by the Tribunal in Sahu-Khan. In a valiant attempt to save the decision Mr Robinson drew attention to the fact that Dr Lewin had said “certainly more than trivial”, but this was no more than an emphatic way of saying “more than trivial”. It did not satisfy the statutory test and the Tribunal was mistaken in thinking otherwise.
94. Moreover, the current test of contribution also requires an evaluative exercise to be undertaken. That is apparent both from the words used in subs (1) of s 5B and also the matters to which subs (2) draws attention. The Tribunal did not engage with any of them. Indeed, it did not mention subs (2) at all. While the chapeau to the subsection states that those matters “may” (not “shall”) be taken into account, a word which is generally permissive, properly construed it is at least arguable that in this context it is directory; in other words that “may” means “shall”: see Julius v Lord Bishop of Oxford (1880) 5 App Cas 214 at 222–223 (Earl Cairns LC); North Australian Aboriginal Justice Agency Ltd v Northern Territory [2015] HCA 41 at [209] (Nettle and Gordon JJ). In the absence of argument on this question I refrain from expressing a concluded view. Nevertheless, there is nothing in the Tribunal’s reasons to indicate that it carried out the kind of evaluative exercise required by the statute.
Mr Powell, the only medical practitioner who gave evidence at the hearing, was invited a number of times to express a view whether the work activities as described by Mr McGowan contributed to, to a significant degree, the aggravation of the underlying degenerative cervical spondylosis being the episode of the brachialgia at the end of the week commencing 23 February 2015 continuing until June 2015. Mr Powell was not prepared to give evidence to this extent. Instead, Mr Powell gave evidence that the episode of brachialgia experienced by Mr McGowan at that time was likely to be part of the natural progression of the degenerative cervical spondylosis. He accepted the work activities may have also contributed to it, but at the hearing, he was not prepared to go so far as to opine that they contributed to it, to a significant degree.
The Tribunal also notes the following matters:
(a)Mr McGowan did not seek to adduce any evidence to suggest that his work station, office equipment and chair were ergonomically unsound;
(b)Mr McGowan did not seek to adduce any evidence from a medical practitioner to contest Mr Powell’s diagnosis of brachialgia, underlying degenerative cervical spondylosis or to support his contention that the work activities at Telstra contributed to, to a significant degree, his claimed condition; and
(c)On two (of the three) days from 24 to 26 February 2015, Mr McGowan conceded on the second day of the hearing, that he worked less than a standard eight-hour day due to the “drop-offs” and “pick-ups” on those two days.
In consideration of the factors set out in s 5B(a) of the Act, the Tribunal notes that the overall duration of the employment at Telstra was relatively short. Mr McGowan had been working in the role of Continuous Improvement Lead at Telstra for a period of approximately seven months before sustaining the injury. No evidence was led by either party as to whether Telstra or Mr McGowan’s supervisors and HSE staff were informed about Mr McGowan’s pre-existing degenerative cervical spine condition prior to commencing at Telstra. Although the Tribunal has considered this factor, it did not ultimately influence its decision about whether Mr McGowan’s employment at Telstra contributed to, to a significant degree, the claimed condition.
In consideration of the factors set out in s 5B(b) of the Act, the Tribunal has taken into consideration the sedentary nature of the activities Mr McGowan was required to perform in his office-based role at Telstra. In the broad sense, it would seem intuitive that given Mr McGowan’s pre-existing neck condition, sedentary activities would be a safer option for him than other work activities requiring manual labour, heavy lifting or significant twisting or turning of the neck. However, the Tribunal acknowledges that sedentary work activities can also present their own problem if the work station or office equipment is not set up ergonomically or if insufficient breaks are not taken during the day.
In this case, the Tribunal considers that the hours worked by Mr McGowan were reasonable and in fact, on two out of the three days that he was preparing the PowerPoint presentation, Mr McGowan worked considerably less than the standard eight-hour work day. There was no evidence that Mr McGowan was directed that he could not take a break during that period and in fact, Mr McGowan’s evidence was that he did take lunch breaks, albeit short. As mentioned above, there was is a notable absence of evidence tendered about there being a problem with the ergonomic set up of his work station and no contentions made to this effect. Mr Powell gave evidence that the use of a mouse on a desk was no more likely to cause symptoms of the kind Mr McGowan experienced “than any other everyday use of the arms and activities of everyday living”. The Tribunal considers that this factor weighs against the conclusion that Mr McGowan’s work activities contributed to, to a significant degree, the claimed condition.
The Tribunal considers that the factor set out in s 5B(c) of the Act also weighs against the conclusion that Mr McGowan’s work activities contributed to, to a significant degree, his claimed condition. The report provided by Mr Jenkins, as referred to in paragraph [58], set out a long history going back at least 15 years of Mr McGowan’s reoccurring symptoms arising from his underlying degenerative cervical spine condition. This was confirmed by the medical observations by Mr Powell and the radiological findings revealed from the X-ray as referred to above. The Tribunal accepts the evidence of Mr Powell that it is probable that Mr McGowan’s episode of brachialgia “represented part of the spectrum of the history of the natural condition” and is satisfied that Mr McGowan was and remained predisposed to aggravation of the underlying degenerative condition, whether that be an episode of brachialgia causing pain to Mr McGowan when moving his head upward and downward and pain radiating down the right arm, as was the case at the end of the week commencing 23 February 2015 or other types of neck stiffness or “neck locking” causing pain to Mr McGowan when moving his head from left to right.
In consideration of the factor set out in s 5B(d) of the Act, there was some cursory evidence at the hearing about Mr McGowan’s past involvement in home building and yachting activities and also a reference to Mr McGowan falling off of a ladder previously, however, there was insufficient evidence before the Tribunal about those activities which would justify a finding that those other activities otherwise contributed to the claimed condition. For this reason, this factor has not ultimately influenced the Tribunal’s decision about whether the work activities at Telstra contributed to, to a significant degree, the claimed condition.
The Tribunal considers that there are no other factors affecting Mr McGowan’s health that are relevant to whether his work activities at Telstra contributed to, to a significant degree, the claimed injury.
CONCLUSION
The Tribunal concludes that the Act is not excluded from applying to Mr McGowan in respect of his claimed injury by operation of s 53, as the Tribunal is satisfied that Mr McGowan gave sufficient notice to Telstra in writing of the claimed injury and its connection with his employment as soon as practicable after the injury.
The Tribunal considers that Mr McGowan suffered an aggravation of an ailment. The ailment was Mr McGowan’s pre-existing degenerative cervical spondylosis, as diagnosed by Mr Powell, which Mr McGowan had experienced for at least the past 15 years. The aggravation to this ailment was the episode of brachialgia experienced by Mr McGowan at the end of the week commencing 23 February 2015.

Based on Mr Powell’s evidence, and upon taking into account the considerations set out in paragraphs [74] to [83], the Tribunal is satisfied that the work activities at Telstra performed by Mr McGowan leading up to and in particular, from 24 to 26 February 2015, contributed to the aggravation of his ailment. While the Tribunal considers that the extent of this contribution was material, it was not “substantially greater than material”[18] and as such, did not reach the required threshold of contributing to the aggravation of Mr McGowan’s ailment to a significant degree as required by the Act. For this reason, the Tribunal concludes that Mr McGowan’s claimed condition does not meet the definition of a disease under s 5B of the Act.
[18] See s 5B(3) of the Act.
Accordingly, the Tribunal affirms the decision by Telstra to deny liability under s 14 of the Act in respect of Mr McGowan’s claimed injury to his cervical spine.

I certify that the preceding 87 (eighty-seven) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker

....................................[sgd]....................................
Associate
Dated: 7 July 2017

Dates of hearing: 14 - 15 March 2017

Applicant: In person

Counsel for the Respondent: Mr John Wallace

Solicitors for the Respondent: Clarke Legal

[2017] AATA 1053

7 July 2017

Key Legal Topics

Areas of Law

Employment Law

Statutory Interpretation

Legal Concepts

Causation

Statutory Construction

Procedural Fairness

Remedies

Dates of hearing:	14 - 15 March 2017
Applicant:	In person
Counsel for the Respondent:	Mr John Wallace
Solicitors for the Respondent:	Clarke Legal