Moiler and Comcare (Compensation)

Moiler and Comcare (Compensation) [2022] AATA 2292 (15 July 2022)
Division:GENERAL DIVISION
File Number(s): 2019/3508 & 2020/3393
Re:Craig Moiler
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President B W Rayment OAM QC
Date:15 July 2022
Place:Sydney

The decision under review is set aside and in substitution it is decided that Comcare is:
1.liable to pay compensation in respect of the Applicant’s medical expenses for his bilateral hip replacement operation (2019/3508).

..................................[SGD]......................................
Deputy President B W Rayment OAM QC
CATCHWORDS
COMPENSATION – whether Comcare is liable to pay the Applicant compensation for injuries, particularly in respect of medical expenses under the Safety, Rehabilitation and Compensation Act 1988 (Cth) – decisions under review set aside and substituted.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Commonwealth Banking Corporation v Percival [1988] FCA 240; (1988) 20 FCR 176
Re Commonwealth of Australia v Kathleen Beattie [1981] FCA 88; (1981) 53 FLR 191
Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626
REASONS FOR DECISION
Deputy President B W Rayment OAM QC
15 July 2022

Mr Craig Moiler began work for the Commonwealth Scientific and Industrial Research Organisation (CSIRO) in 1995, at the age of 33 years. He was retrenched in March 2019. These proceedings directly concern workers compensation claims made by him and refused by Comcare in the later years of his employment, but both parties proceeded on the basis that it was necessary to examine the applicant’s whole work history from about 1999 onwards, to resolve the various disputes between the parties. Ultimately, the applicant put an alternative case, which I discuss towards the end of these reasons, which depends mainly on the events of the last year of his employment by the CSIRO. If that alternative case succeeds, the work history is relevant only as background to the events of the last year. The evidence before the Tribunal includes a dispute between the views of the late Dr Harrison, an orthopaedic surgeon, who wrote a number of reports over the relevant period and who was the applicant’s main treating specialist and two of three medico-legal witnesses qualified by the respondent, and that dispute will also be resolved in these reasons. The main claim of financial significance to the parties, is a claim made in 2019 to recover the cost of a bilateral hip replacement, an operation performed by Dr Gunsel in late 2018. Comcare refused to pay that claim, apparently relying on the reports of two of three specialists qualified by it. Those two specialists gave oral evidence before the Tribunal. Dr Harrison died before the hearing and had the opportunity to comment only on the earlier of two reports given by Dr McGill. He is a consultant rheumatologist. The other one of the two specialists called by Comcare, Dr Gray, is a consultant orthopaedic surgeon. To resolve the case based upon the whole working history, it will be necessary for the Tribunal to prefer on the one hand, Dr Harrison’s reports, which also has some support from the report of Dr Browne, a rheumatologist who saw Mr Moiler in 2017 and whom Comcare did not ask to give oral evidence, or on the other hand to prefer the reports and oral evidence of Dr McGill and Dr Gray.
These reasons will first deal with and make findings about the relevant history of Mr Moiler’s employment, then consider some legal questions and finally seek to resolve the two disputes between the parties.
Prior to his employment by the CSIRO the applicant worked as a fitter and turner, tool maker and machinist, work which he described as not heavy in nature.
When his CSIRO employment began in 1995, he worked as a precision machinist, building receivers for radio telescopes. Those duties continued until 1999, and he said that during that time his work caused him no pain or difficulty in his back, hips or knees, or elsewhere. He was then a keen cyclist and kept very fit. His cycling became more difficult for him in 2000.
In 1999, his duties changed when he was moved to the CSIRO Industrial Physics site at Lindfield. He worked as a mechanical fitter, and was involved in repair, maintenance and installation. From about November 1999 a substantial part of his work involved working inside air handling cupboards, which had a height of about 1.4 metres. He described that work as involving him in having to crouch and bend in confined spaces within the cupboards and said that when the strain of bending and crouching became too much, he would squat and kneel within the cupboards. He worked in the confined spaces for about 5 hours each working day.
That work continued until mid-2001. He said that over the course of 2000 to mid-2001 he noticed for the first time pain and stiffness in his hips and knees. Mr Kelly of counsel, for Comcare, during his cross-examination reminded him that he had told a doctor in March 2001 that he had been experiencing pain in and around the left hip for about six months. He described the onset of the pain and stiffness as gradual rather than immediate. He said that the pain came on slowly over time and was at its worst during the times when he worked in the confined space of the air handling cupboards and reached a peak in about March 2001. He went to his general practitioner in late March and was referred for an X-ray of his lower back, right hip and right knee.
The radiology report from March 2001 determined that the applicant had mild to moderate changes of osteoarthritis in his right hip, and that there was a very mild spondylolisthesis of L5 in his lumbro-sacral spine, a condition consistent with low back pain. A slight irregularity on his right knee was noted on the articular margin.
In his statement he said that from about mid-2001, he was able to decrease the time he spent on physical maintenance on the fans in the cupboards, by assigning contractors or others to such tasks. At the same time, he increased the time he spent on upgrading cupboards and lock systems. He described the amount of confined space work he performed as significantly reduced after mid-2001 but added that he would often have to lift tools and pieces of heavy equipment off the floor and work in a bent-over position on some parts and on parts of equipment that were on the ground.
Expanding on that part of his statement in oral evidence, in answer to questions asked by Mr Kelly of counsel and from me, the applicant said that whereas during the period ending in mid-2001, he generally spent five hours working in cramped conditions, after that time he spent perhaps an hour or two on three days a week doing the same work, until 2005 or 2006. That amounts to a substantial reduction of the confined space work but the work done after mid-2001 and until 2005/2006 may have caused a continuing deterioration in his osteoarthritis in his hip or hips.
Mr Kelly submitted that the applicant’s oral evidence in this respect ought to be rejected because Dr McGill, a consultant rheumatologist qualified by Comcare in 2016-2020, wrote in his report of 2020 that subsequent to what he described as “approximately a twelve-month period” from 1999, “he continued maintenance work but not in confined spaces”. That assertion on the part of Dr McGill is based on his appreciation of statements made by the applicant, who was described by the doctor as a poor historian. The report of Dr Harrison, written in March 2006, refers to work in cramped and awkward surroundings “once more!” suggesting recent such work.
While Mr Kelly did elicit from Mr Moiler confirmation that, as reported by the doctor, at a second consultation with Dr McGill, the doctor read from the earlier report and asked Mr Moiler to confirm that the doctor’s note was correct, Mr Moiler was not confronted with the passage quoted in the previous paragraph, to suggest that his evidence summarised in [8] above needed some qualification, was incorrect or false. I accept the applicant’s evidence summarised in [9] above.
It seems to me that Mr Moiler’s evidence before the Tribunal under oath and transcribed are to be preferred to a doctor’s note, even bearing in mind that the doctor later obtained Mr Moiler’s confirmation of his note. Dr Harrison’s report of March 2006 refers to aggravation of a previously unsuspected osteoarthritis in his hips and knees “as clearly demonstrated in his exacerbation around 2001 and since then”.
More generally, Mr Moiler’s oral evidence seemed to me to have been given frankly and honestly, and to the best of his recollection. In this respect I note that Dr Gray’s report, which is a January 2021 medico-legal report commissioned by Comcare, states that he was a good historian and straightforward in his presentation. That was also my impression.
Dr McGill described Mr Moiler as a poor historian in reports which he wrote. Dr Harrison in his numerous reports expressed no such view.
The CSIRO later wrote or agreed to a number of return to work plans for Mr Moiler after various surgeries which he underwent, which, speaking generally, introduced restrictions into his work schedule designed to avoid the need for him to work in cramped conditions or lift heavy equipment. Those restrictions were approved by Dr Harrison, his treating specialist and with some exceptions, generally made his work less demanding upon Mr Moiler’s hips and knees. Certain work assessments conducted later suggested however that the imposition of work restrictions did not wholly eliminate crouching, bending, stretching and ladder use from Mr Moiler’s workplace conditions. The assessments, so far as relevant, are referred to below.
Mr Moiler first saw Dr Harrison in March 2006, and that doctor, wrote a report to the applicant’s general practitioner, Dr Alagan, on 21 March. He recorded a history that from 2001 onwards he was obliged to work in cramped and awkward spaces in his work as a fitter and became conscious of pain in both his hips and at and around his right knee. Dr Harrison expressed the view that although there was no family history of osteoarthritis, he has worked in a labour intensive manner with CSIRO and that aggravation occurred of any previously unsuspected tendency to osteoarthritis “as clearly demonstrated in his exacerbation around 2001 and since then”. He expressed the view that Mr Moiler was “certainly facing consideration of more conservative and possibly early operative treatment on those knees” and at the conclusion of his report referred to aggravation of osteoarthritis affecting his hips and knees, as a result of his work with CSIRO.
In March 2006, Dr Harrison told Mr Moiler that he had osteoarthritis in his hips and knees and would probably need to have both of his hips and his knees replaced eventually.
Mr Moiler made his first workers compensation claim in March 2006.
Mr Moiler also saw Dr Alagan in November 2005 and the doctor wrote a report for Comcare in April 2006, having taken into account Dr Harrison’s report. She made reference to an unknown earlier injury of which he had no account. She said that his work conditions could be a contributing factor to his developing moderate osteoarthritic changes at his then age of 44 years. She said that Mr Moiler could not do his pre-injury duties any longer and was able to do suitable organisational/ administrative work and tool-making with restrictions of avoiding crouching, site work, working on ladders and heavy lifting. She said Mr Moiler should work an eight hour day, 4-5 days per week.
In April 2006, Comcare accepted liability for aggravation of osteoarthritis (left) and knee (right). Mr Kelly submitted that Comcare wrongly accepted liability at that time. That submission was based upon the (retrospective) evidence which Comcare elicited from Dr McGill and Dr Gray. Comcare’s decision was soundly based on the reports of Dr Harrison and Dr Alagan. Dr Harrison’s report may have justified a more extensive acceptance of liability, extending to both hips.
Mr Moiler had physiotherapy every couple of weeks. In January 2007 the physiotherapist, Mr Castle, noted that the applicant reported still experiencing some intermittent bilateral anterior knee pain, predominantly on the right.
Dr Harrison saw him again in March 2007 and wrote a report on 14 March indicating that most of his back problems had settled, but he has ongoing patterns of discomfort affecting both hips and increased pain at and around his right knee and referred to pain from hip to the right knee at times when he tires. He also noted changes to his work conditions, in that he no longer did ladder work and was not obliged to work in cramped or awkward postures.
Commenting on that remark, Mr Moiler said that if he had to inspect something, or it was an urgent problem, he was still expected to work in confined spaces or crouch, or go up a ladder, but it was a lot less than earlier.
Dr Harrison said in the 2007 report that surgical intervention on his right knee and later on the hips was to be reviewed in 12-18 months at that time.
In June 2007 he began hydrotherapy with “pleasing reductions in his knee pain and improved hip pain”.
Dr Harrison’s next review was on 27 February 2008. He noted that at that time, at CSIRO a shrinkage in maintenance staff had made pressures on work expectations greater than they were a year ago when he was on suitable light restricted duties. He also noted that he had contingent problems of wear changes affecting both knees and hips that will ultimately create additional and greater problems for him. He expressed the view that the arthritic problems in his knees will preclude a return to full unrestricted work again in the foreseeable future. He again recommended upper tibial surgery to prolong his effective use of the right knee.
On the day following Dr Harrison’s report, X-rays were conducted of Mr Moiler’s hips and knees, with the report of 28 February sent to Dr Harrison. As to the hips, the radiologist said: “The hips bilaterally are dysplastic with flattening of the femoral heads, right greater than left and moderate left greater than right osteoarthritis with loss of joint space supero-laterally with subarticular sclerosis and early marginal osteophytic change.” (emphasis added). There were also X-rays of the knees. The report about the hips is relevant to one of the reviewable decisions, discussed further below.
Dr Gray’s comment about the February 2008 X-ray is that the dysplastic changes were congenital in origin, which would inevitably lead to secondary degenerative/osteoarthritic change in both hips, in 2008 of a relatively marked nature for a man of his age. He said that the changes would be independent of any work activity, but that certain work and day to day activities would exacerbate symptoms from such arthritic changes. Dr Gray disagreed with Dr Harrison about the question whether work exacerbated or aggravated his condition and ventured a definition of those terms at R4 page 31, which will be discussed further below. Dr Gray’s report was written in 2021, following his examination in the year prior, and was necessarily retrospective in nature.
One reason nominated by Dr Harrison in a letter dated 4 April 2008 for the surgery he recommended to the left leg (an upper tibial osteotomy) is that it was a reasonable measure to propose for a 45 year old man with his composite hip and knee problems. The pressure on the leg which had been out of alignment which led to the operation as described to me by the respondent’s counsel involved a shaving of the femur in order to relieve pressure.
In April 2008 at ST3, a workplace assessment was conducted about Mr Moiler. His then activities were described at pages 13 -14 as follows: maintaining air conditioners/pumps, involving prolonged walking or standing for up to 4 hours at a time, crouching and crawling in confined spaces for several minutes at a time to repair some pumps, forcefully pushing/pulling to move pumps of various weights (up to 400 kg) on trolley occasionally as required, reaching overhead, climbing ladders to reach and repair, maintain parts, lifting, with assistance at times up to 40 kg or more, in awkward postures; maintaining doors and door closers, involving inter alia crouching/squatting to reach to plates set into the floor or climbing ladder to reach overhead, occasionally and with assistance, lift heavy doors off hinges to repair; maintaining door locks/keys: walking along corridors, remove and repair door locks/keys, at a metre from the floor; maintaining fume cupboards: occasionally, standing, walking for a few minutes at a time, to reach and repair door slides of fume cupboards and climb ladder to repair fans in fume cupboards in laboratories. Those activities replicated to some extent the 2011-2015 exertions of the applicant.
In September 2008, after Mr Moiler continued to experience pain in his hips and knees, he reached the point where he reduced his work to three days per week.
In a report to Comcare of 24 October 2008, Dr Harrison described Mr Moiler as suffering from osteoarthritis affecting his knees and hips (left worse than right with respect to the hips, and right worse than left with respect to his knees). The doctor said that the nature and conditions of work such as the heavy labouring he was obliged to do at times at the CSIRO can be a contributing factor to the rate at which arthritic change occurs.
He traced the origin of the awareness of pain back to 2001, as to pain in the hips and the knees, despite a suggestion by Comcare of a later origin in November 2005. Comcare asked whether Mr Moiler’s current level of symptoms were at the same level as would be expected regardless of the aggravation related to his employment of 2005. The doctor replied that the current level of symptoms are somewhat in proportion to the effects of his persistence at work and added that he would not agree that his current level of symptoms is unrelated to his employment with CSIRO.
Dr Gray’s report of 10 January 2021 records that before the right knee operation of 2008, next referred to, Mr Moiler had experienced giving way and instability in the right knee, with some improvement after the surgery.
Knee surgery on the right leg (a proximal tibial osteotomy) was performed by Dr Harrison on 4 November 2008, and after rehabilitation and physiotherapy, on 6 May 2009, Mr Moiler returned to work. His return to work plan was finalised in March 2010. At first Mr Moiler worked light restricted duties, four hours a day, three days a week, on Dr Harrison’s recommendation. His duties were more sedentary and he was able to work despite still experiencing pain in both knees and occasional hip and lower back pain.
On 20 August 2009, Mr Moiler was still working three days a week, doing longer hours occasionally and avoiding as much of the heavy, repetitive work as he could.
He returned to work full time in November 2009.
On 28 July 2010 and outside the work environment, Mr Moiler’s left foot suddenly skidded at Westfield on a sloping metal surface (a travelator) and he fell, experiencing a forced flexion injury to the right knee. The hyperflexion injury led to the arthroscopy next referred to.
In 2011, Dr Harrison performed a right knee arthroscopy on Mr Moiler, following proceedings in this Tribunal. Mr Moiler went back to work and found that the walking he did over the (large) Lindfield site over uneven ground and up and down stairs caused pain and restricted movement in his hips, although the pain in his knee was reduced after the 2011 right knee operation.
In 2013 Mr Moiler was working his pre-injury hours of 37.5 hours per week, performing permanently modified duties – no lifting over 8 kg, sitting and standing as tolerated, no pushing or pulling a trolley over 50 kg, avoiding bending, twisting and squatting, driving as tolerated, avoiding repetitive use of ladders.

Mr Kelly obtained confirmation from Mr Moiler of a report prepared in 2013 by a rehabilitation consultant in September 2013 which contained at pages 28-29 of ST5 a summary of his permanently modified duties. Listed as occasional on that document (6-33% of his time) were: mechanical repairs to pumps and fans, involving sitting, standing, walking, constant bilateral upper limb use, reaching, fine manipulation, pushing or pulling tool trolley, lifting under 8 kgs, squatting, bending, ladder use; plant upgrades to the lock and pump system, involving the same activities as just mentioned; on call duties typically involving responding to equipment failure (predominantly air conditioning units or other issues such as burst pipes also involving the same activities; replacing locks and re-keying doors, involving constant standing and walking, constant bilateral upper limb use and fine manipulation; computer use involving constant sitting, maintaining perimeter security (gates) involving constant walking. Those activities were at the Lindfield site, but Mr Moiler said that occasionally he would provide assistance at other CSIRO sites as needed, mostly to conduct site inductions and supervise contractors.
On barriers to return to work the author recorded that the applicant had ongoing hip, knee and lower back pain resulting in permanent restrictions to work capacity, and unlikely to improve in the future.
In 2014, Mr Moiler spent some five months at CSIRO’s Marsfield site as a facilities manager, with some work also at North Ryde. A workplace assessment indicated that the work in question was significantly less physically demanding than his previous role and Mr Moiler said: “Yes, that’s correct, to a degree”. He added that it was not entirely a management position.
By October 2014 he was certified fit for full-time hours working permanently modified duties, with no lifting or carrying over 8 kilos, sitting, standing as tolerated, no pushing or pulling over 50 kilograms using a trolley, avoid bending, twisting and squatting, driving as tolerated, and avoid repetitive use of ladders.
Another request from his employer that the applicant again work in cramped spaces is referred to one of Dr Harrison’s reports. That request was identified by Mr Moiler as having occurred in November 2015. Over two days, he fitted and aligned bearing mounts to a supply fan at the Lindfield site, work that involved crouching and lifting parts associated with the fan. Then over the next two days he spent several hours up a ladder working on the fume cupboard and door. He then felt significant pain in his hips and knees, could not sleep properly and started to limp when he was walking. He felt pain in both hips and his right knee, and his right knee would buckle and give way from time to time.
There is a long letter from Dr Harrison dated 28 April 2016, written after an examination of Mr Moiler on that day, contained in material summonsed by Comcare. In that letter, Dr Harrison commented somewhat critically on a report written in the same year by Dr McGill, who gave evidence before the Tribunal. It will be necessary to return to that letter when I make findings about the medico-legal evidence led from Dr McGill.
When Dr Harrison wrote the letter of 28 April 2016, he had retired from active practice about ten months earlier, but his treatment of Mr Moiler which started in 2006 had involved regular examinations and interventions from that time. Dr New, an orthopaedic spinal surgical colleague who had been seeing Mr Moiler from 2013 kept Dr Harrison informed of problems affecting his hips and the interplay with back and knee issues which continued.
Dr Harrison commented that when he examined Mr Moiler in November 2013 he felt there would be an inexorable increase in symptoms both from his back and hips troubling him further in the future, and that there may be some value in differentiating how much of his discomfort was coming from his back or hips.
He recorded that in 2015 he was informed by Mr Moiler that after the Maintenance Section had been reduced from 20 people in better times to 4 people with a lot of outsourced contracted work in repairs to plumbing, electricity and air-conditioning done. Mr Moiler had adopted a role where he was less involved in maintenance work and spent more time dealing with the contractors coming in. Although some of the work was desk-bound with telephone and computer, and in dealing with the scientists in the laboratories, he had to talk through with contractors sometimes at a desk or table but often standing and walking around the laboratory, showing them work that had to be done and checking that it was done.
He recorded that when regular physiotherapy ceased, he found himself more prone to episodes of back pain and to be a little more vulnerable to episodes of discomfort when he first stands after sitting for a prolonged period of time.
He commented that the applicant struggled to easily and confidently go up steps and stairs without aggravating pain at the front of his left knee. He added: “He is more conscious now of low back pain experiences particularly left-sided affecting him once more, and by his overall assessment, he is not as good as he was.”
The reports of Dr Harrison suggest that the attitude of Mr Moiler to his employment was to persevere with it, despite the pain which it involved.
Mr Moiler said that between 2011 and 2018 the pain in his hips, back and knees gradually got worse. He heard clicking and other noises coming from his left knee. By mid to late 2018 he found himself unable to walk more than about 100 metres. His general practitioner referred him to Dr Gursel, an orthopaedic surgeon, who told him that he needed a bilateral hip replacement. That operation was performed in December 2018 and in February 2019 Mr Moiler returned to work. The operation performed by Dr Gunsel was what Dr Harrison had predicted that the applicant would require in due course, but the immediate need for the operation was that Mr Moiler could not continue to work for the CSIRO as he was then required to do, that is, walk some five kilometres per day, at a time when it was painful for him to walk more than 100 metres at a time, presumably without resting. I infer that the inability to walk more than 100 metres without pain, while being required by his employers to walk much longer distances by his employer is why Dr Gursel certified Mr Moiler as completely unfit for work before the bilateral hip replacement.
Mr Moiler made claim for the cost of the bilateral hip replacement, as to which Comcare relied upon its earlier “no present liability” determination of 2017. Subsequently and alternatively, the applicant made a claim in December 2019 for right hip osteoarthritis, aggravation of right hip osteoarthritis, bilateral hip osteoarthritis, and aggravation of bilateral hip osteoarthritis. Mr Davis of counsel, for the applicant, told me that if the claim of February 2019 finds favour with the Tribunal, the claim of December 2019 does not arise for determination.
Mr Davis asked Mr Moiler in re-examination about his evidence that when he stopped work prior to the bilateral hip replacement, he could not walk more than one hundred metres, and he confirmed that evidence. He said that by mid 2018, in order to perform his usual duties, he needed to walk about 5 kilometres on the Lindfield site. I accept that evidence.
Comcare sought a medico-legal opinion from rheumatologist Dr Browne in June 2017 and his report of 24 August expresses the opinion that the applicant had bilateral hip osteoarthritis and right knee osteoarthritis and that he was relatively young to have such advanced changes. He said: “[t]he nature and conditions of his work, which involved a certain degree of lifting, but the repeated squatting, kneeling and bending may have accelerated and aggravated the condition.”
Dr Browne took it that the possible acceleration and aggravation stemmed from the energetic work done in 1999-2001. He may not have known in detail about some of the later events that took place in Mr Moiler’s employment and may have discounted those that he was aware of.
From the letter providing him with instructions, Dr Browne was provided with reports of Dr Harrison from 2007 to 2014, and Dr McGill’s report of 2016.
Asked whether it is likely that the diagnosed conditions would have reached their current state, irrespective of the CSIRO employment, Dr Browne replied that had he not been carrying out the duties that he has performed in the employ of CSIRO, namely working in confined spaces with squatting, kneeling and bending, his condition may not have developed to this advanced stage, but it is likely to have gradually progressed despite that.
Questions 7(a) and (b) and Dr Browne’s answers are as follows:
7. On the balance of probabilities as distinct from possibilities, is the condition currently suffered by Mr Moiler related to:
a) his employment with the CSIRO, or incident on 17 November 2005.
On the balance of probabilities, the condition suffered by Mr Moiler relates to the nature and conditions of his employment from 1999 up until when he was required to work in confined spaces with the need to kneel, squat and bend.
b) a pre-existing congenital, constitutionally or underlying condition or predisposition. If in your opinion, an underlying or pre-existing condition was aggravated by his Commonwealth employment, do the effects of any aggravation or acceleration continue to materially contribute to the current condition or have any effects of that aggravation resolved?
There is a pre-existing congenital disorder as stated above which has been aggravated by his Commonwealth Employment. The effects of that aggravation have probably ceased, as he no longer has work in the squatting, kneeling or bending position.
The condition of osteoarthritis of the hips is likely to naturally progress despite less arduous duties.
I take Dr Browne to have disagreed with Dr McGill about the significance of the 1999-2001 work-related activities, and about the significance attributed by Dr McGill to the epidemiological article written by Jensen. In that respect Dr Harrison had expressed in the previous year a similar view.
Dr Gray disagreed with what was said by Dr Browne in his answers to question 7(a) and (b) and repeated, as he had throughout his report that the work activity exacerbated symptoms rather than the osteoarthritis itself. He expressed the view that it would need decades of heavy work to accelerate or aggravate the osteoarthritis.
Dr Harrison, who passed away in 2019, had no opportunity to reply to Dr Gray’s report or to Dr McGill’s later report. He does not appear to have seen Dr Browne’s report. The doctor (then retired) wrote a report dated 9 April 2019 (shortly after Mr Moiler ceased to work altogether). At page 12 of T5 in proceedings 2020/3393 he said:
You asked my opinion in relationship to the surgery done by my skilled orthopaedic hip and knee surgical colleague, Dr Gursel, in December 2018 as to the extent it was related to ongoing aggravations of his pre-existing condition at that time.
… Having listed to and examined Mr Moiler again here today and being aware of his background history from the past (and now from more recent times), it certainly is my opinion that the surgery done by Dr Gursel has significantly moderated the pain and referred pain experiences and the aggravations of mechanical lower back and knee pain (with what was later realised and shown to be developing osteoarthritis affecting both hips that he was experiencing.
As such, it has been part of reasonable and necessary treatment for the conditions of pain affecting his lumbar spine, both knees (right initially more so than left that was effected for him then.
Dr Harrison’s letter of 9 April 2019 indicates that he was aware of a walking and climbing problem prior to the bilateral hip replacement operation, because Dr Harrison commented as follows:
·He walks with a slight limp favouring the left side still noticeable when he walks and he gets only slight pain now in both his hips.
·He has no need of supportive devices and he can walk 8-9 blocks as a substantial difference in ability to walk than he had before his hip replacement surgery was done.
·When he climbs stairs, he does tend to use a railing for support but he can put on his shoes and socks now with ease and he tolerates sitting in any chair and has no difficulty coping with using public transport.
Dr Harrison also commented that in October 2018, Mr Moiler had started to experience a succession of episodes where he would get increased mechanical noise (“clicking” and “clunking”) arising from his left knee, which did not abate with short breaks away from work, but which had moderated since he ceased working.
He expressed the view that the bilateral hip replacements have significantly moderated the pain and referred pain experiences which he had.
Dr Gursel’s medical certificate dated 7 December 2018 (written just before the bilateral hip replacement) stated that Mr Moiler was then unfit for duties at work from the date of the letter and that he would be reviewed on 22 January 2019. He then reported that the applicant had an excellent range of motion in both hips. In March 2019 he said that “[h]e was able to walk into my rooms unaided, without a limp and with a good range of motion of both his hips. His strength is adequate.” He continued: “This gentleman is recovering well and with some continued improvements of his strength, posturing and balance he will be much happier with his outcome. He has had issues for many years now and he is on the path to recovery”.
The applicant called Dr James Bodel and Dr Sally Preston, as medico-legal experts. Both Dr Bodel and Dr Preston gave evidence by telephone.
Dr Bodel examined the applicant on 10 September 2020, and Dr Sally Preston examined Mr Moiler in April 2021. Each generally expressed agreement with Dr Harrison’s report of 9 April 2019, and Dr Bodel was also provided with Dr Harrison’s report of 28 February 2016.
Mr Kelly cross-examined Dr Bodel and Dr Preston, winning concessions about a number of matters from each of them. Dr Bodel, having read Dr Gray’s lengthy report appeared to come to the view that the impressions he gained from X-rays or the reports of them may have been incorrect. The history taken by Dr Bodel as recorded in his report seems in any event to have been quite general.
Dr Preston’s cross-examination also revealed that a number of assumptions from which her opinion proceeded were incorrect.
I have difficulty in placing reliance on either of the medico-legal experts called by the applicant.
Dr McGill wrote two reports. The first in time was a report dated 18 February 2016 based upon an interview and examination of Mr Moiler of the same day.
Unlike other doctors, he described Mr Moiler as a somewhat vague historian. The history which he took from the applicant included the following:
He was unsure of the exact timing but approximately twelve months after he started working on the maintenance and repair of fans he became aware of discomfort in both hips and knees. The symptoms came on gradually. At times he found it difficult to sleep. He saw his general practitioner Dr Alagan at 333 Medical Centre Merrylands. He reported his symptoms at work and his duties were modified such that he no longer spent substantial periods of time in the cramped conditions of the rooms in which the fans were located. He noted no change in his symptoms as a result of the modification of his work.
In 2001 he saw a rheumatologist at Westmead and had a knee (he thought his left) aspirated and the fluid sent for testing. He could not recall the name of the doctor or the result of the testing.
His recollection of the progress of his symptoms was poor other than that they continued. He thought that he commenced regular physiotherapy in about 2005 and continued to see the therapist (he could not estimate the frequency but indicated that the treatments continued) until 2015. The physiotherapy treatments involved massage, passive stretching and theraband exercises. Since the physiotherapy has ceased he has continued the exercises himself.
In 2007 he had an osteotomy of the right knee region by Dr Harrison. He thought the surgery was of help. He was subsequently found to have loose bodies in the right knee and his recollection was that Dr Harrison was considering whether or not they should be removed. He then suffered a fall on a travelator in Westfield Shopping Centre. It aggravated his right knee and Dr Harrison proceeded with arthroscopy. Mr Moiler today felt that it was “hard to tell” if the arthroscopy made any difference.
In the years following his osteotomy and subsequent arthroscopy, he continued to experience discomfort in his hips and both knees. Working on ladders seemed to irritate the symptoms.
He remains under the care of his general practitioner, Dr Alagan. He has not seen Dr Harrison for more than one year.
When I checked as to whether he had ever suffered a knee or hip region injury, he could not recall any. He did come off his racing bicycle at times and at the age of 24 years he was knocked unconscious (pre helmet days). There was no suggestion that he had suffered a specific injury of the knees or hips while cycling.
At pages 6 and 7 of that report, as to the likely role of his work duties in regard to the symptoms the applicant experienced due to hip and knee osteoarthritis he said:
The squatting and kneeling activities that he performed would have had the capacity to increase the level of symptoms experienced in his knees and hips during the time that he was doing those activities. The duration of the very frequent knee bending, squatting and kneeling that he performed while inspecting and maintaining fans (approximately twelve months but possibly up to 18 months) was insufficient to be likely to have had any influence on the structure of his knees and hips. Although the literature is somewhat conflicting, I think there is reasonable evidence from the literature that hip and knee osteoarthritis are associated with longer periods of heavy lifting at work. I enclose a copy of the systematic review performed by Jensen in relation to the association between hip osteoarthritis and physical work demands. It was noted that the duration of the physical burden needed to be at least 110-20 years. I also enclose a copy of the study by Allen et al which examined the association between occupation tasks and knee and hip osteoarthritis. They found that radiographic hip and knee osteoarthritis were not significantly associated with any occupational task. They did find some association between occupational tasks do not make a difference to the development or progression of osteoarthritis, they can make a difference to the level of symptoms the person is experiencing while performing those tasks.
I think the probable effect of his work duties was to increase his symptoms on a short terms basis but not to make any difference to the development or the progression of his hip or knee osteoarthritis.
I note that his right knee osteotomy was performed through workers’ compensation on the basis that his knee symptoms were influenced by his work. Regardless of whether or not I agree that his symptoms prior to the surgery were still influenced by his work, it is necessary to assess whether the surgery could have accelerated osteoarthritis in the right knee. I think that it is unlikely. The surgery was successful in improving his symptoms and did not involve alteration of the cartilage within his knee. It is possible that the surgery may have had a beneficial effect in terms of retarding progression of his right knee osteoarthritis but at worst, I think the effect in regard to progression was neutral.
I think his knee and hip symptoms have followed the expected pathway for constitutional idiopathic osteoarthritis. His symptoms have not been primarily due to injury (work related or otherwise) and thus it is not surprising that they have persisted.
I do not think he continues to suffer the effect of any injury or condition he sustained as a result of his technical service officer duties.
I think the effect of his work duties ceased at the time at the time he ceased needing to perform frequent kneeling or squatting. If it were to be accepted that his right knee osteotomy was performed because of a work-aggravated condition then I would assess that the effects of work ceased twelve months following surgery.
He will eventually very likely require bilateral hip replacement and he may subsequently require knee replacements. The requirement for joint replacements is not related to this work.

Dr Harrison read this report and said on 29 April 2016 as follows:
I found matters in the physical examination, history taking and opinion in Dr McGill’s report with which I disagree in part. In the history taking, he mentioned no information about mechanical back pain. In the physical examination, although focusing in part on hip paid, appears to totally ignore the attendant relationship of (or didn’t bother to examine) his lumbar spine as an apparent oversight on his part.
He did a cursory examination of his lumbar spine despite the well-known clinical fact that people with arthritic changes in their hips quite frequently have attendant adjacent degenerate changes in their lumbar spine and, although he confirms his ability to forward flex freely, he simply understates lateral flexion and rotation in the thoracolumbar spin which is “at the lower end of normal range”. He said “muscle bulk in the lower limbs was symmetrical”.
A purist such as an Orthopaedic Surgeon would note (and I did note) that the varus alignment of both knees is not quite symmetrical and there is about a 2-3 ° difference in the varus alignment of his left knee (greater than on the right assessed in a standing position) as a minor observation only which an expert should either measure or pick up in a man who has had operative treatment done in the form of a closing wedge upper tibial osteotomy into valgus on the right knee as part of the history that he obtained.
In answering questions on page 6 of 7, Dr McGill opines that “the squatting and kneeling activities that he performed would have had the capacity to increase the level of symptoms experienced in his knees and hips during the time that he was doing those activities”.
Having quantified what he said was an 18 month period while he was doing those tasks often, he opined that it was “insufficient to be likely to have had any influence on the structure of his knees and hips” without any real justification for that I don’t find the reference to Jensen particular authoritative: I do agree that occupations do make a difference in the level of symptoms a person experiences and the argument then follows as to how long those symptoms through an exacerbation rather than aggravation can take. He has drawn his own version of that in the subsequent paragraph which states “I think the probably effect of his work duties was to increase his symptoms on a short term basis but not to make any difference to the development or the progression of his hip or knee osteoarthritis” with which I don’t agree.
Dr McGill is wrong in concluding that surgery on his right knee didn’t accelerate osteoarthritis and in his views on the effects that meniscal dysfunction (treated) usually has a well-documented effect on the subsequent acceleration and speed with which secondary degenerate) osteoarthritic changes develop. It is generally accepted in Orthopaedics, based on substantial clinical studies, that well-meaning partial meniscectomy of the knee is followed by approximately a 4% annual acceleration in osteoarthritic changes in that part of the knee from which removal of that part of the meniscal “washer” or spacer component was done.
Dr McGill may not be aware of what surgery was done by me within that knee in drawing such a conclusion incorrectly.
His concluding sentence in also incorrect by accepted clinical standards of Orthopaedic literature which are the more reliable in terms of his man’s issues and problems than from the sources from which Dr McGill has quoted.
I certainly disagree with his muses of the term “constitutional”. If we get away from the legislative use of such a word, the word is bantered around as if osteoarthrosis, which we know to have a multi-factorial input from different people in different ways and at different rates as is part of the variation in human genomes and anatomy ad that the use of the word constitutional implies there is a certain “order” decreed in our bodies such that when secondary degenerate changes occur, they occur in a certain pattern and, in clinical and research experience, that is not the case. I object to that term being used as a “garbage bucket” aggregation of explanations of pathology found in various people at different times. For that reason, I strongly regard it as a misuse of the word here.
Dr McGill wrote a further medico-legal report in on 28 October 2020, having then read Dr Harrison’s report of 29 April 2016 and a variety of other reports, and in part seeking to answer criticisms made in Dr Harrison’s letter of 29 April 2016.
Dr Harrison criticised the history recorded by Dr McGill. He criticised aspects of the examination performed by the doctor. He suggested that the Jensen report, which formed an important part of Dr McGill’s reasoning, was perhaps not likely to be determinative. He said that accepted clinical standards are more reliable than the sources from which Dr McGill quoted.
Dr McGill repeated his account of Mr Moiler’s history which he had recorded in 2016, sought and obtained his confirmation of it and sought to bring it up to date. In substance he again relied upon the earlier history he had obtained.
I am unable to comment on the differences between Dr Harrison and Dr McGill concerning Dr McGill’s examination of the applicant.
Dr McGill said in his second report that there was room for further research, but that at this stage he continued to regard the Jensen and other reports as supporting his opinion.
Dr Gray, who did not rely on the Jensen report, expressed the view that the exacerbation in symptoms, that is increased pain experienced by Mr Moiler was to be distinguished from the underlying pathology of the osteoarthritis, and said that while the symptoms may have worsened from time to time, the underlying pathology did not. Dr Gray treated an increase in pain as other than an aggravation of an injury or disease.
That question, which is one of law, mainly affects the alternative case put forward by the applicant based upon the events of 2018, but may not affect the case directly dependent on work conditions from 1999 onwards.
Each case put by the applicant is correctly described as an aggravation case. However the alternative case proceeds on the basis of aggravation in the sense of increased pain suffered by the applicant as a result of his employment, requiring him, because of the nature of his continuing employment to obtain relief from the pain (as a result of the bilateral hip replacement) before he could resume his employment with the CSIRO. The way to secure that relief was expected to, and did, alleviate that pain such that he was much improved and was able to continue the work in 2019. The circumstance that he was retrenched soon after returning to work, does not affect his entitlement to workers compensation to obtain reimbursement of the costs of the bilateral hip replacement.
The legal question of what is meant by the aggravation of an injury is to be resolved by considering the decision of the High Court in Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 (Semlitch) and later Federal Court decisions. Semlitch concerned the meaning of the word "exacerbation" in a New South Wales workers compensation statute where "injury" was defined to include "the aggravation, acceleration, exacerbation or deterioration of any disease where the employment was a contributing factor to such aggravation, acceleration, exacerbation or deterioration". The disease in question was a mental illness and the question was whether that mental illness had been exacerbated by the worker's employment. Kitto J (at 634), with whom Taylor J agreed, said of the Supreme Court decision:
Moffitt J (at first instance) placed at least some of his emphasis upon the word “exacerbation”, and it seems to me that that word is the critical word for this case. As applied to a disease it is properly used to refer to effects which the disease produces in the victim rather than to the advance of the disease itself in a more serious stage of its development. “A temporary increase in the violence of the symptoms of a disease” is the medical sense of the word according to Funk & Wagnall's Standard English Dictionary. In the Oxford English Dictionary may be found illustrations of the use of the word as referring to particular manifestations of a diseased condition. It is not a technical word, requiring scientific explication or application. It is an ordinary English word to be applied by the Court to the proved facts. Once it was established, as it was established beyond question before the Commission by the evidence of the psychiatrists who were called, that the incident of 1st December 1960 acted upon a pre-existing condition of mental illness (a disease) to produce a delusion causing incapacity for work, the respondent had made a clear case of exacerbation of her mental disease, according to the ordinary meaning of the word. Moffitt J was right, I think, in saying: “There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms. The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism.” Accordingly if salt be applied to an open wound, making the wound no worse but causing it to smart as it had not smarted before, it is proper to say that there is an exacerbation of the wound. Equally, where an untoward occurrence in a worker's employment causes a pre-existing mental disorder to manifest itself in a new delusion, it seems to me proper to say that there is an exacerbation of the mental disorder.
In that case Taylor J agreed with Kitto J. McTiernan J reached the same conclusion. Windeyer J made different remarks at CLR page 637 which were discussed in the next case mentioned, and in which it was concluded that pain brought on by work activity may constitute an aggravation of a pre-existing injury even though no pathological change takes place.
Semlitch was discussed by the Full Court of the Federal Court (Evatt, Sheppard and Kelly JJ) in Re Commonwealth of Australia v Kathleen Beattie [1981] FCA 88; (1981) 53 FLR 191 (Beattie). The Court dealt with questions of law stated by Sheppard J raised on a notice of appeal against a decision of the Commonwealth Employees Compensation Tribunal, which dealt with a claim for compensation under the predecessor of the current statute, the Compensation (Commonwealth Government Employees) Act 1971 (Cth). Question 2 asked whether pain doing no pathological harm constitutes an aggravation of a pre-existing injury caused in non-compensable circumstances within the meaning of the 1971 Act. In the 1971 Act, the word “injury” was defined to mean “any physical or mental injury and includes the aggravation, acceleration or recurrence of any physical or mental injury but subject to section 29 of this Act, does not include a disease or the aggravation, acceleration or recurrence of a disease”. Their Honours said that the question would more appropriately have asked: “Can incapacitating pain brought on by activity undertaken in the course of employment constitute an aggravation of a physical injury, not-withstanding that such pain is not brought about by any further pathological change.” That question, or question 2 reformulated in that way, the Court answered “yes, it may do so”. The Court explained that it would not be 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. The Court said: “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 Full Court in Commonwealth Banking Corporation v Percival [1988] FCA 240; (1988) 20 FCR 176 later made clear that the symptom of an injury, that is the experience of the injury, is part of the injury in respect of which compensation is payable.
The applicant’s alternative claim based upon the events of 2018 arises directly under subsection 16(1) of the Safety Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act or the Act).Subsection 16(1) provides as follows:
(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
Subsection 16(1) takes one to sections 5A and 5B of the Act, which provide as follows:
5A Definition of injury
(1) In this Act:
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.
(2) For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a) a reasonable appraisal of the employee’s performance;
(b) a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c) a reasonable suspension action in respect of the employee’s employment;
(d) a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e) anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f) anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
5B Definition of disease
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
The osteoarthritis of Mr Moiler was on any view a disease, as described in section 5A of the Act. An aggravation of that ailment may be constituted by increased symptomatic pain experienced by Mr Moiler that was contributed to, to a significant degree, by the employment with CSIRO: see for example Beattie.
The purpose of the bilateral hip replacement was to alleviate pain being then experienced by Mr Molier in his knees when walking more than 100 metres. Despite the earlier surgery to the right knee, which gave him relief or diminution to the pain which he suffered in the right knee, the condition of the right and left knee was that both hips caused him to suffer knee pain. His employment required him to walk some 5 kilometres per day during his walking week, and he was unable, by reason of pain, to walk more than 100 metres at a time, presumably without needing to rest before continuing.
In my opinion, to use the language of subsection 16(1) of the SRC Act, that made it reasonable in the circumstances for him to have the surgery of a bilateral hip replacement. To put it another way, the only way he could avoid the increased pain in his knees was to have the surgery, and the pain actually made him unfit for work until he had the surgery.
Returning to Dr Gray’s opinion, he said nothing to the contrary in my opinion. His view that the pain suffered by Mr Moiler as a result of work activity, if correct, did not alter what is critical under the SRC Act, that his increased symptomatic pain was an aggravation of his aliment. The same is true of Dr McGill’s evidence. Insofar as he referred to the Jensen report as confirmative reference material, it is clear from the Jensen report that it says nothing about and increase in symptomatic pain. Therefore, so understood, it does not assist the resolution of the applicant’s alternative case.
It seems to me that, within the meaning of section 5B, the employment contributed to the aggravation of his aliment to a degree that was substantially more than material. A person who cannot walk more than 100 metres without pain whose employment requires him to walk much greater distances, and who, as a result is no longer capable of working, is a person whose claim engages section 5B.
I therefore resolve the applicant’s alternative case in favour of the applicant.
I turn to the matter of dispute between Dr Harrison and Dr Burke, on the one hand and Dr McGill and Dr Gray on the other.
In my opinion, the evidence in Dr Harrison’s written reports is more reliable than the contrary opinions expressed by Dr Gray and Dr McGill. In the first place, Dr Harrison saw the applicant regularly over a long period as his treating specialist (until his retirement) and thereafter. His reports have the benefit of being contemporaneous rather than retrospective in nature. The views which he consistently expressed about the contribution made by the nature and conditions of the applicant’s work by way of aggravation or acceleration of his constitutional osteoarthritis, a state of affairs that may be described as early onset, were consistently expressed in his reports. Dr Browne largely agreed with that view, albeit restricting his comments to the period of 1999-2001, which he treated as still operative in 2017.
The nature and conditions of Mr Moiler’s employment fluctuated from time to time as did Mr Moiler’s condition. It would be unsurprising that times in which the employer’s requirements of Mr Moiler required more exertion also operated, as Dr Harrison in effect suggested, to exacerbate the underlying pathology of his osteoarthritis.
The early period from 1999-2001 struck Dr Harrison as likely to have led to early onset of Mr Moiler’s osteoarthritis, and Dr Browne was of the same opinion. I do not detect in the views of Dr McGill and Dr Gray any dispute that the applicant’s development of symptoms at that time was other than unusual for a man of his age.
When commenting upon Dr McGill’s first report, Dr Harrison was unimpressed with the Jensen report, as apparently Dr Browne was also. In his oral evidence Dr Gray stated, amongst other things, that the epidemiological literature was not definitive.
Mr Davis submitted that the form of the current Act prior to the amendments made in 2014 which required that a contribution be made which is substantially more than material applies to the claim presently under consideration rather than the position arising under the amendment which governs the claim presently being considered. It is true that in the period up to 2014 most of the events discussed in Dr Harrison’s reports from 2006 onwards had occurred. Mr Kelly’s submissions drew attention to some matters in Dr Harrison’s reports of 2010 and 2011 which did not accord with some of Mr Moiler’s recollections of the position at that time, but those differences make no difference in my opinion. I have placed no reliance on the passages in Dr Harrison’s reports of 2010 and 2011 to which Mr Kelly referred.

It seems to me that consistently with my preference for the opinions of Dr Harrison, I have no difficulty in finding that in the period up to 2014 the contribution made by the nature and conditions of Mr Moiler’s work (although by no means constant, because of changes in his work requirements from time to time) was material.
That is so in my opinion, even though there was probably some (relatively minor) further acceleration of the osteoarthritis in Mr Moiler’s right knee as a result of the arthroscopy performed by Dr Harrison, as that doctor himself suggested. The arthroscopy was not related to any work requirements and followed the slipping at Westfield mentioned at paragraph 38 above.
The period from 2014 to 2017 contained events which I have described in paragraphs 43, 44, 49, 50 and 53, although paragraph 53 mainly relates to what I have described as the applicant’s alternative case. Paragraph 45 relates to a two day period, and paragraph 49 covers a matter of less importance in 2015. Paragraph 50 does not refer to any demands made upon Mr Moiler by his employer. It seems to me, therefore that the 2014 amendments are unlikely to affect the entitlements of the applicant, and the finding I have made in the immediately preceding paragraph is sufficient for present purposes. Of course, I have already dealt with the events of 2018 and allowed the claim on that separate basis under the current form of the Act.
It follows from my preference for Dr Harrison’s reports that for that reason also the reviewable decision in proceeding number 2019/3508 should be set aside and substituted with a decision that the claim for medical expenses for the bilateral hip replacement operation should be allowed by Comcare.
I also order pursuant to section 67 of the Act that the costs of the proceedings incurred by the applicant, that is proceeding number 2019/3508, be paid by Comcare.

I certify that the preceding 106 (one hundred and six) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM QC

...............................[SGD].........................................
Associate
Dated: 15 July 2022

Date(s) of hearing: 1 & 2 September 2021 and 20 May 2022

Counsel for the Applicant: Mr M Davis

Solicitors for the Applicant: Mr M Taylor, Leigh Virtue & Associates

Counsel for the Respondent: Mr B Kelly

Solicitors for the Respondent: Ms S Miller, Sparke Helmore Lawyers

[2022] AATA 2292

15 July 2022

Key Legal Topics

Areas of Law

Employment Law

Administrative Law

Legal Concepts

Remedies

Judicial Review

Statutory Construction

Date(s) of hearing:	1 & 2 September 2021 and 20 May 2022
Counsel for the Applicant:	Mr M Davis
Solicitors for the Applicant:	Mr M Taylor, Leigh Virtue & Associates
Counsel for the Respondent:	Mr B Kelly
Solicitors for the Respondent:	Ms S Miller, Sparke Helmore Lawyers