Ommundson and Australian Postal Corporation (Compensation) - [2017] AATA 1422

Ommundson and Australian Postal Corporation (Compensation) [2017] AATA 1422 (4 September 2017)
Division:GENERAL DIVISION
File Number(s): 2015/6296
Re:Frederick Ommundson
APPLICANT

AndAustralian Postal Corporation
RESPONDENT

DECISION
Tribunal:Senior Member Linda Kirk
Dr W Isles, Member
Date:4 September 2017
Place:Sydney

The decision under review is affirmed.
...............[sgd].........................................................
Senior Member Linda Kirk
CATCHWORDS
COMPENSATION – postal worker – knee injury – whether Applicant suffered an injury (other than a disease) or an aggravation of a disease – whether injury or aggravation of disease resulted in incapacity for work or impairment – whether aggravation of disease is not an injury by reason of s 7(7) of SRC Act – Tribunal not satisfied that Applicant suffered an injury or an aggravation of a disease – decision under review affirmed.
LEGISLATION
Compensation (Commonwealth Government Employees) Act 1971 (Cth) s 29
Safety, Rehabilitation, Compensation and Other Legislation Amendment 2007 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5, 5A, 5B, 7, 14
CASES
Comcare v Mooi [1996] FCA 1587; (1996) 69 FCR 439.
Comcare v Power [2015] FCA 1502; (2015) 238 FCR 187; 149 ALD 286; 68 AAR 228.
Comcare v Canute [2005] FCAFC 262; (2005) 148 FCR 232; 89 ALD 258; 41 AAR 539.
Commonwealth v Beattie [1981] FCA 88; 35 ALR 369.
Freeman and Military Rehabilitation and Compensation Commission [2016] AATA 741.
Kennedy Cleaning Services Pty Limited v Petkoska [2000] HCA 45; (2000) 200 CLR 286; 174 ALR 626.
Military Rehabilitation and Compensation Commission v May [2016] HCA 19.
Ogden Industries Pty Limited v Lucas [1967] HCA 30; (1967) 116 CLR 537.
Prain v Comcare [2016] AATA 459.
Treloar v Australian Telecommunications Commission [1990] FCA 511; (1990) 26 FCR 316; 97 ALR 321; 12 AAR 535.
SECONDARY MATERIALS
Commonwealth Employees’ Rehabilitation and Compensation Bill 1988 (Cth) Second Reading Speech, House of Representatives, 27 April 1988.
REASONS FOR DECISION
Senior Member Linda Kirk
Dr W Isles, Member
4 September 2017

Mr Frederick Ommundson (“the Applicant”) was born on 14 May 1954 and is currently 63 years of age. On 14 July 2008, Mr Ommundson commenced employment at the Australian Postal Corporation (“Australia Post”).
On 26 March 2015, Mr Ommundson commenced work at or around 8:00pm. After collecting the keys and the T2 cards, he proceeded to his truck and commenced a check of the vehicle. During the course of securing the straps on the vehicle, he accidently struck a concrete tyre stopper which led him to fall and land on his left knee and left hip (“the incident”). After reporting the incident to his supervisor and completing the necessary incident reports, Mr Ommundson continued with and completed his shift. From the date of the incident until 4 June 2015 Mr Ommundson continued to work full-time and undertake his regular duties and did not take any days off work. He visited a doctor at his general practice on two occasions during May 2015, but did not mention the claimed injury to his knee to either doctor. He first reported the claimed injury when he saw his general practitioner Dr Ong on 4 June 2015, and he was declared unfit for work by Dr Ong on this date. Mr Ommundson lodged his Claim for Rehabilitation and Compensation on 11June 2015.
Mr Ommundson seeks a review of the reviewable decision (“the Reconsideration”) dated 14 September 2015 in which the Respondent affirmed a primary determination (“the Determination”) dated 22 June 2015 which denied liability to pay compensation to Mr Ommundson under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”) for a “soft tissue injury to the left hip and left knee”. The delegate determined that there was not a sufficient causal nexus between the incident and the claimed injury.
The application for review was heard in Sydney on 1-3 May 2017. Both parties were represented by counsel; Mr Ommundson was represented by Mr Leo Grey and Australia Post by Mr Paul Jones.
In addition to three days of hearing evidence, Mr Ommundson and Australia Post provided the Tribunal with a large number of documents, including exhibits. The Tribunal has considered and given appropriate weighting to these documents in making this decision.
A. LEGISLATION AND ISSUES
Provisions of the SRC Act
Mr Ommundson’s application relates to a claim for acceptance of liability to pay compensation for an “injury” under s 14 of the SRC Act. Subsection 14(1) of the SRC Act provides:
Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Australia Post is a licensed corporation under the SRC Act. As one of its employees, Mr Ommundson was an employee within the meaning of ss 5(1) and (1A) of the SRC Act.
The term “injury” has the meaning given to it by s 5A of the SRC Act. Section 5A(1) provides:
“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.”
(Emphasis added)
Section 5B(1) of the SRC Act defines “disease”:
“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.
Section 4(1) of the SRC Act provides the following in relation to the terms “ailment” and “aggravation”:
“ailment” means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
“aggravation” includes acceleration or recurrence.
Section 5B(3) of the SRC Act defines the expression “significant degree”:
“significant degree” means a degree that is substantially more than material.
Section 5B(2) of the SRC Act sets out matters to which regard may be had in determining whether an ailment or aggravation was contributed to, to a significant degree, by the employee’s employment by the Commonwealth but does not limit consideration to those matters. They are:
(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.
Section 7(7) of the SRC Act states:
A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.
Issues for determination
Mr Ommundson claims that he suffered an “injury” arising from the incident on 26 March 2015 and that the matter thereby falls to be determined under s 5A(1)(b) of the SRC Act. Alternatively, he contends, and Australia Post agrees, this is a “disease” case to be determined under s 5A(1)(a) read alongside s 5B(1) of the SRC Act. If this is so, the Tribunal must consider whether the disease in his left knee was “contributed to, to a significant degree, by [his] employment” as required by s 5B(1) of the SRC Act.
The determinative issues before the Tribunal are:
(a)Did Mr Ommundson suffer an “injury (other than a disease)” to his left knee as a result of the incident, which arose out of, or in the course of his employment with Australia Post as defined in s 5A(1)(b) of the SRC Act?
(b)Did Mr Ommundson suffer an aggravation of an underlying degenerative “disease” in his left knee as a result of the incident, as defined in s 5A(1)(a) and s 5B(1)(b) of the SRC Act, to which his employment with Australia Post contributed, to a significant degree?
(c)If so, did the injury or aggravation of the disease in his left knee result in incapacity for work or impairment for the purposes of s 14(1) of the SRC Act?
(d)If Mr Ommundson suffered an aggravation of a disease in his left knee that resulted in incapacity for work or impairment, is the disease not an “injury” by reason of s 7(7) of the SRC Act?
In considering these issues, the Tribunal had regard to documentary evidence before it together with the evidence given by Mr Ommundson, medical experts and other lay witnesses at the hearing. This evidence is set out in Part B below.
Judicial interpretation of the provisions
The entitlement to compensation under s 14 arises if the employee is able to establish there is a relevant “injury” under the SRC Act. As Deputy President Humphries observed in Prain v Comcare,[1] the difference between whether a claimed work-related condition is an “injury (other than a disease)” or a “disease” lies in the evidentiary threshold that must be met to establish the condition. As he stated:
(7) In terms of securing an entitlement to compensation under s 14, the difference between whether a claimed work-related condition is an injury (other than a disease) or a disease goes, inter alia, to the evidentiary threshold which must be met to establish the condition. The threshold is lower for an injury simpliciter, in that a claimant can succeed simply if the condition arises in the course of his or her employment, whether caused by that employment or not. The test is a temporal one, that is, did the injury arise while the claimant was at work? Similarly the test of whether an injury arises out of the employment is a relatively less onerous threshold to reach; there must be a causal connection between the employment and the injury, a connection which is material and more than de minimis: Treloar v Australian Telecommunication Commission (1990) 26 FCR 316. The Federal Court there held (at 323):
The causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established, however, it matters not that the contribution be large or small.
(8) By contrast, the evidentiary threshold for a disease under the Act is higher. Section 5B requires that a disease (or ailment) must have been contributed to to a significant degree by the claimant’s employment. Subsection (3) directs that significant degree means a degree that is substantially more than material. This higher threshold was established by the 2007 amendments to the Act (previously the test for injuries simpliciter and diseases were the same: they required only a material contribution from employment).
[1] [2016] AATA 459 at [7]-[8].
As was the case in Prain v Comcare, whether the claimed injury is an “injury (other than a disease)” or a “disease” is a matter for determination for this Tribunal.
Both Mr Jones and Mr Grey referred to the recent High Court decision in Military Rehabilitation and Compensation Commission v May[2] (“May”), in which the Court considered the structure of the SRC Act, particularly s 5A and the definition of “injury”.
[2] [2016] HCA 19; (2016) 331 ALR 369; 150 ALD 392; 90 ALJR 626.
In Freeman and Military Rehabilitation and Compensation Commission (Compensation)[3] (“Freeman”) Deputy President Forgie noted the key aspects that the High Court plurality and Gageler J in May said need to be had regard to when considering the meaning of “injury” in the SRC Act:[4]
[3] [2016] AATA 741.
[4] [2016] AATA 741 at [28].
(1) The definition of “injury” in s 4(1), which is set out in [11] above, gives it three strands of meaning centred on “disease”, “injury (other than a disease)” and “an aggravation of a physical or mental injury (other than a disease)”. Each comprises a separate basis of liability.[5]
[5] [2016] HCA 19; (2016) 331 ALR 369; 150 ALD 392; 90 ALJR 626 at [41] and [56]; 378, 381; 400, 403; 632-633, 635.
(2) The sets of conditions answering the definition of “injury” comprise two sub‑sets: “disease” and “injury (other than a disease)”.
(a) Each has a different meaning in the scheme of the SRC Act but, while separate, they are related bases of liability.[6]
[6] [2016] HCA 19; (2016) 331 ALR 369; 150 ALD 392; 90 ALJR 626 at [42]; 378; 401; 633.
(b) The structure of the two sub-sets means that, if a condition is a “disease”, there is no need to consider whether that condition is an “injury (other than a disease)”.[7]
[7] [2016] HCA 19; (2016) 331 ALR 369; 150 ALD 392; 90 ALJR 626 at [44]; 378-379; 401; 633.
(3) A “disease” is defined in terms requiring it to be both:
(a) an ailment or an aggravation of an ailment; and
(b) an ailment or aggravation of an ailment that has been contributed to in a material degree by the employee’s employment by the Commonwealth.[8]
[8] [2016] HCA 19; (2016) 331 ALR 369; 150 ALD 392; 90 ALJR 626 at [43]; 378; 401; 633.
(4) An “injury (other than a disease)”:
(a) is defined in terms requiring it to be both:
(i) “a physical or mental injury; and
(ii) to arise out of, or in the course of, an employee’s employment so that the physical or mental injury has a causal or a temporal connection with the employee’s employment.[9]
[9] [2016] HCA 19; (2016) 331 ALR 369; 150 ALD 392; 90 ALJR 626; at [44]; 378-379; 401; 633.
(b) uses the word “injury” in its primary sense:
(i) An injury in the primary sense can arise, and be described, in a variety of ways.
· An “injury” in the primary sense is not confined to “getting hurt”.[10]
[10] [2016] HCA 19; (2016) 331 ALR 369; 150 ALD 392; 90 ALJR 626 at [75]; 383; 406; 636-637 per Gageler J.
(ii) A “sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state” may qualify for characterisation as an “injury” in that primary sense.
· The nature and incidents of the physiological change are the central elements in the characterisation of an injury.
· They may be internal or external to the employee’s body.
· The quality of “suddenness” is not necessary to establish that an employee has suffered an injury in the primary sense but it may be useful in distinguishing a physiological change from the natural progress of an underlying disease.[11]
[11] [2016] HCA 19; (2016) 331 ALR 369; 150 ALD 392; 90 ALJR 626 at [45]-[48]; 379-380; 401-402; 633-634.
· There must be some definite or distinct physiological change or physiological disturbance for the worse which, if not sudden, is at least identifiable.[12]
[12] [2016] HCA 19; (2016) 331 ALR 369; 150 ALD 392; 90 ALJR 626 at [75]; 383; 406; 636-637.
· That necessarily requires consideration of the ‘precise evidence, on a fact by fact basis, concerning the nature and incidents of the physiological change’…”[13]
[13] [2016] HCA 19; (2016) 331 ALR 369; 150 ALD 392; 90 ALJR 626 at [60]; 381; 404; 635 citing Kennedy Cleaning Services Pty Limited v Petkoska [2000] HCA 45; (2000) 200 CLR 286; 174 ALR 626; 74 ALJR 1298; Gleeson CJ, Gaudron, McHugh, Gummow, Kirby and Hayne JJ; Callinan J dissenting.
· Where appropriate, account may be taken of common-sense inferences drawn from a sequence of events.[14]
[14] [2016] HCA 19; (2016) 331 ALR 369; 150 ALD 392; 90 ALJR 626 at [62]; 381-382; 404; 635.
(5) In identifying whether an employee is suffering from a “disease” or an “injury (other than a disease)”, it is necessary to keep in mind both the proper characterisation of the employee’s condition and the causal or temporal terms in which those terms are defined.
(a) There may be circumstances in which a physiological change, a disturbance of the normal physiological state or a psychiatric disorder satisfies the definition of an “ailment” but is found not to have been contributed to in a material degree by the employee’s employment.
(i) That would satisfy the first element of the definition of the term “disease” but not the causation element and so would not be a “disease” for the purposes of the SRC Act.
(ii) Consideration would then be given to whether that disturbance of the normal physiological state or a psychiatric disorder is an “injury (other than a disease)” and so an injury in its primary sense and whether it arose out of, or in the course of, the employee’s employment.
· There is no overlap between a “disease” and an “injury (other than a disease)” for each is created on a different basis of liability reflected in the different causal or temporal links required to establish each.[15]
[15] [2016] HCA 19; (2016) 331 ALR 369; 150 ALD 392; 90 ALJR 626 at [53]-[56]; 380-381; 403; 634‑635.
(b) Neither an assertion by an employee of feeling unwell nor a finding that the employee is indeed feeling unwell establishes that the employee has suffered either a disease or an injury (other than a disease) for neither is:
(i) an ailment being a physical or mental ailment, disorder, defect or morbid condition required by the first limb of the definition of a “disease”; nor
(ii) a physiological or psychiatric change to bring it within the description of an “injury (other than a disease).[16]
(c) Not every ailment or worsening of an ailment can be described as an injury in the ordinary sense. At least in the case of a physical injury, to suffer an injury is more than just to experience the onset of dysfunction.[17]
(i) The understanding of an injury as a definite or distinct physiological change or disturbance was first expounded in cases in which catastrophic consequences of pre-existing medical conditions came to be recognised as capable of constituting injuries …. The exposition has remained particularly useful in cases within that category. The analysis undertaken in those cases has always looked beyond mere alterations of physical or mental functioning of the mind or body to the identification of the physiological happenings which have resulted in those alterations: … The point of explaining an injury in terms of a definite or distinct physiological change or disturbance has been to highlight the necessity for such an analysis to be undertaken.
The need to identify some underlying physiological occurrence to justify the finding of a physical injury is perhaps best illustrated by the reasoning of the majority in Zickar v MGH Plastic Industries Pty Ltd … [(1996) 187 CLR 310; [1996] HCA 31], which concerned a worker who collapsed at work after the rupture of a congenital cerebral aneurism. Having said that ‘[i]f there was no rupture there would be no event answering the description of personal injury’. Toohey, McHugh and Gummow JJ added ‘[b]ut there was such an event and the presence of a disease does not preclude reliance upon that event as personal injury’ … Together with Kirby J …, their Honours concluded that the rupture itself was properly characterised as an injury in the normal sense[18]
[16] [2016] HCA 19; (2016) 331 ALR 369; 150 ALD 392; 90 ALJR 626 at [57]; [61]-[62] and [67]; 381‑382; 404-405; 635-636.
[17] [2016] HCA 19; (2016) 331 ALR 369; 150 ALD 392; 90 ALJR 626 at [77]; 384; 406; 637 per Gageler J.
[18] [2016] HCA 19; (2016) 331 ALR 369; 150 ALD 392; 90 ALJR 626 at [78]-[79]; 384; 406-407; 637 per Gageler J.
What is a disease?
As the High Court observed in May, the definition of “disease” requires that an employee suffer from an ailment, or the aggravation of an ailment, and that ailment or its aggravation has been contributed to in a material, or to a significant, degree by the employee’s employment with the Commonwealth.

The concept of disease was considered by the Federal Court in Comcare v Mooi.[19] At the time it was decided, s 5B had not been enacted and the definitions of “disease” and “ailment” were found in s 4(1) of the SRC Act. Those definitions were in terms consistent with their current definitions. Drummond J began by noting that:
By s 4, the term ‘injury’ means physical or mental injury other than disease, while the term ‘disease’ means any physical or mental ailment, disorder, defect or morbid condition. The expression ‘ailment’ is used in s 4 of the Act as a synonym for the term ‘disease’. It is apparent from the exhaustive meaning given by s 4 to the term ‘ailment’, and from the ordinary meaning of that word – ‘a morbid affection of the body or mind; indisposition: a slight ailment (The Macquarie Dictionary) – that that term is intended to cover the whole range of physical and mental illnesses from major to minor ones.[20]
[19] [1996] FCA 1587; (1996) 69 FCR 439.
[20] [1996] FCA 1587; (1996) 69 FCR 439 at [10]; 442-443.
Referring to the ordinary meanings of the word “disease” as well as the meanings given in medical dictionaries, Drummond J concluded:
Only conditions involving a disturbance of the normal functions of body or mind are within the term ‘disease’, as defined, and thus ‘injuries’ for the purposes of s 14(1) of the Act.[21]
[21] [1996] FCA 1587; (1996) 69 FCR 439 at [16]; 445.
What is an aggravation of a disease (ailment)?
This was considered in Ogden Industries Pty Limited v Lucas[22] (“Ogden”). Arising out of his employment, Mr Lucas suffered a coronary occlusion and myocardial infarction on
[22] [1967] HCA 30; (1967) 116 CLR 537; Barwick CJ, Taylor, Windeyer and Owen JJ; Kitto J dissenting.
1 February 1965. That amounted to an injury in the form of an aggravation and acceleration of his coronary artery disease and myocardial degeneration. The disease progressed and he suffered a further coronary occlusion and myocardial infarction a little before 30 June 1965. A few days later, on 7 July 1965, he died from a pulmonary oedema. The parties had agreed that pulmonary oedema was a disease for the purposes of the Workers Compensation Act 1958 (Vic). It had arisen out of a sudden physiological change for the worse in Mr Lucas’s lungs and out of the work-aggravated and accelerated coronary artery disease and myocardial infarction. Mr Lucas’s pulmonary oedema was the terminal event in a long history of cardiac disease.
The majority of the High Court decided that Mr Lucas had not suffered a further injury within the meaning of the legislation. Windeyer J explained it in this way:
It seems to me that it is impossible to bring this occurrence within that definition. It was not in itself a disease contracted in the course of employment. Was it the aggravation … of a pre-existing disease? It seems to me that it cannot be said that it was. ‘Aggravation’ means, I think, that an existing disease had been made worse, not that it has simply become worse.[23]
[23] [1967] HCA 30; (1967) 116 CLR 537 at [29]; 593.
This is consistent with the views later expressed by the Full Court of the Federal Court in Commonwealth v Beattie,[24] where Evatt and Sheppard JJ said:
It does not follow in every case that a worker with a pre-existing injury, who carries out work and as a result suffers pain, will have suffered an aggravation of his injury. A worker whose fractured leg is encased in plaster will be unable to put it to the ground without suffering pain and other disability. But that is not a case of aggravation. In such a case any incapacity for work arises only by reason of the pre-existing injury. The evidence earlier recounted shows this to be a very different type of case. Thus each case must depend upon its own facts. For present purposes it is enough to say that pain brought on by work activity may constitute an aggravation of a pre-existing injury, even though no pathological change takes place.
[24] [1981] FCA 88; 35 ALR 369; Evatt, Sheppard and Kelly JJ.
What is an injury (other than a disease)?
As Deputy President Forgie in Freeman noted, in relation to the definition of “injury (other than disease)”, the High Court in May identified the following principles as relevant:
(a)An injury might be a disturbance of the normal physiological state.
(b)Change may be internal or external to the body of the employee.
(c)Suddenness is not necessary but it may be useful in distinguishing between a physiological change from the natural progress of an underlying disease.
(d)An injury can arise in a variety of ways.
(e)Identification of an injury requires precise consideration, on a fact by fact basis, of the nature and incidents of the physiological change.
In their joint judgment in Kennedy Cleaning Services Pty Limited v Petkoska,[25] Gleeson CJ and Kirby J underlined previous authority to the effect that:
the mere fact that a sudden physiological change is in some way connected with an underlying ‘disease’ process does not, of itself, prevent the classification of such a change as an ‘injury’ within the primary statutory provisions that apply to such a case. All the members of this Court in the majority in Zickar [Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310] referred with approval to the remarks of Murphy J in McIntosh [Accident Compensation Commission v McIntosh [1991] 2 VR 253] with whom both Crockett and Cummins JJ agreed … In McIntosh, the Court was considering a case involving a sudden rupture of blood vessels and a consequent cerebral haemorrhage arising from arteriovenous malformation. It was called upon to decide whether such a rupture could amount to a ‘physical injury’ within the Accident Compensation Act 1985 (Vict.). In the passage specifically approved in the joint reasons in Zickar …, this is what Murphy J said:
If the rupture is due to blood pressure, arteriosclerosis, arteriovenous malformation, or any other congenital or diagnostic aetiology, it is nonetheless a rupture – something quite distinct from a defect, disorder or morbid condition, which enables it to occur.[26]
[25] [2000] HCA 45; (2000) 200 CLR 286; 174 ALR 626.
[26] [2000] HCA 45; (2000) 200 CLR 286; 174 ALR 626 at [35]-[36]; 298-299; 636.
In May, with reference to the Federal Court’s commentary on “suddenness”, the Court noted:
However, as the Full Court correctly held, "suddenness" is not necessary for there to be an "injury" in the primary sense. A physiological change might be "sudden and ascertainable". A physiological change might be "dramatic". The employee's condition might be a "disturbance of the normal physiological state". That an "injury" in the primary sense can arise, and can be described, in a variety of ways does not mean that "suddenness" is irrelevant. As the Full Court said, "suddenness" is often useful where there is a need to distinguish a physiological change from the natural progress of an underlying (and in one sense, closely related) disease (as occurred in Zickar v MGH Plastic Industries Pty Ltd and Kennedy Cleaning). But it is the physiological change – the nature and incidents of that change – that remains central.[27]
[27] [2016] HCA 19; (2016) 331 ALR 369; 150 ALD 392; 90 ALJR 626 at [47].
Distinguishing between an injury and a disease
As Deputy President Forgie observed in Freeman, in determining whether a person has suffered an “injury (other than a disease)” or a “disease”, close regard must be had to the evidence. In Kennedy Cleaning Services Pty Limited v Petkoska, after reviewing some of the previous authorities, Gleeson CJ and Kirby J said:
All of those cases require that consideration be given to the precise evidence, on a fact by fact basis, concerning the nature and the incidents of the physiological change accepted at trial. If this evidence amounts, relevantly, to something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an ‘injury’ in the primary sense of that word. If such an injury happens within the protected period of employment, it is ordinarily compensable without proof of a specific causal connection with the worker’s employment. If the propounded ‘injury’ is distinct from the underlying pathology that constitutes a ‘disease’ that directly or indirectly caused the sudden event to occur, it is unnecessary to proceed to the alternative and additional basis whereby, in such cases, compensation may also be recovered for the disease process if the statutory preconditions are met.
The foregoing approach does not rob the disease provisions of the Act of utility. They would apply in cases of a disease in the nature of dermatitis, lead poisoning, brucellosis and many others of a progressive type. The disease provisions remain as an alternative and additional heads of entitlement where a disease pathology exists with the appropriate employment connection, and does not manifest itself in the kind of sudden physiological change or disturbance of the normal physiological state that will constitute an ‘injury’ in the primary sense. There is no reason to read the word ‘injury’ down because of the alternative and additional definition of compensable disease conditions. On the contrary, considerations of the language and structure of the Act, of legislative history and of the proper approach to construing such legislation reinforce the conclusion to which the majority came in Zickar.[28]
[28] [2000] HCA 45; (2000) 200 CLR 286; 174 ALR 626 at [39]-[40]; 300-301; 637 (citations omitted).
Causal link – contributed to, to a significant degree, by the employee’s employment
An ailment is not a “disease” for the purposes of definition of “disease” in s 5B(1) of the SRC Act unless it is an ailment that “was contributed to, to a significant degree, by the employee’s employment”.
Under the Compensation (Commonwealth Government Employees) Act 1971 (“the 1971 Act”), s 29 provided that an employee was entitled to compensation when “any employment of the employee by the Commonwealth was a contributing factor to the contraction of the disease or to the aggravation, acceleration or recurrence” of that disease. In Treloar v Australian Telecommunications Commission[29] (“Treloar”), the Full Court of the Federal Court held that s 29 required a causal link, established on the balance of probabilities, between the disease or its aggravation or acceleration and the employee’s employment. Once that link had been established, it did not matter whether the contribution was of any particular size or degree.[30]
All that is required is that the relevant aspects of the employment add their measure to the creation of the condition, its aggravation or acceleration. They must, in truth, be part of the cause. If they are not, then, they do not ‘contribute’.
The use of the word ‘material’ in conjunction with the words ‘contributing factor’ in the legislation, where it has occurred in expositions of the section in other cases clearly is not intended to add to the section any significance which is not already to be found in the words used by the legislature. It has served only to emphasise that the section is not brought into play unless it be established by evidence that features of the employment did in fact and in truth contribute to the condition complained of. The causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established, however, it matters not that the contribution be large or small.[31]
[29] [1990] FCA 511; (1990) 26 FCR 316; 97 ALR 321; 12 AAR 535; Sweeney ACJ, Sheppard and Foster JJ.
[30] [1990] FCA 511; (1990) 26 FCR 316; 97 ALR 321; 12 AAR 535 at [21]; 323; 328; 541-542.
[31] [1990] FCA 511; (1990) 26 FCR 316; 97 ALR 321; 12 AAR 535 at [21]-[22]; 323; 328-329; 542.
When the Full Court considered s 29 in Treloar, the 1971 Act did not require that there be an ailment that was “contributed to, to a significant degree” (emphasis added), as is the case under the current provision.
The Full Court of the Federal Court considered the matter again in Comcare v Canute[32] (“Canute”) when the definition of “disease” was drafted in terms of material contribution. French and Stone JJ set out the relevant passage from the Second Reading Speech to the Commonwealth Employees’ Rehabilitation and Compensation Bill 1988 (Cth):
Under the existing Act an employee was required to establish only that his or her employment was a contributing factor in the contraction of a disease. This test does not adequately reflect the rights and obligations of the Commonwealth and its employees in relation to work-related disease and frequently results in the Commonwealth being liable to pay compensation for diseases which have little, if any, connection with employment. This Bill seeks to remedy that situation by requiring an employee to show that his or her employment contributed in a material degree to the contraction of the disease. The Government believes that this is a test which is firm but fair and which properly reflects the balance between the interests of the Commonwealth as employer and its employees. An employee will not be required to show that his or her employment caused the disease, or even that it was the most important factor in the contraction of the disease. It is intended that the test will require an employee to demonstrate that his or her employment was more than a mere contributing factor in the contraction of the disease. Accordingly, it will be necessary for an employee to show that there is a close connection between the disease and the employment in which he or she was engaged.
In determining whether employment contributed in a material degree to the contraction of a disease in a particular case, regard would be had to whether the employment in which the employee was engaged carried an inherent risk of the employee contracting the disease in question and whether some characteristic or feature of the employment tended to cause, aggravate or accelerate the disease. A disease which has been contributed to in a material degree by employment will be deemed to be an injury. Compensation will be payable if that injury results in the death, incapacity or impairment of the employee.[33]
(Emphasis added)
[32] [2005] FCAFC 262; (2005) 148 FCR 232; 89 ALD 258; 41 AAR 539; French and Stone JJ; Gyles J dissenting. The judgment was reversed on appeal but not on this point: Canute v Comcare [2006] HCA 47; (2006) 226 CLR 535; 229 ALR 445; 80 ALJR 1578.
[33] [2005] FCAFC 262; (2005) 148 FCR 232; 89 ALD 258; 41 AAR 539 at [66]; 249; 275; 556-557 citing from Second Reading Speech, House of Representatives, 27 April 1988, Hansard at 2191.
The majority went on to say:
On this basis, the observations of the Full Court in Treloar at 323 that the relevant causal connection must be established on the balance of probabilities and not left in the area of possibility of conjecture are not controversial. Equally, it is plain that the present legislation was not intended to require that an employee demonstrate that their employment caused the disease or that it was the most important factor. It would also appear that the imposition of a ‘but for’ test remains inappropriate. Having said this, the changes brought about by the enactment of the SRC Act were intended to require that the contribution be ‘more than a mere contributing factor’ and, as such, the comments of the Court in Treloar must be assessed in this light. Content must be given to the word ‘material’ contained in the definition of ‘disease’ in the legislation as it presently stands. The inclusion of this term imposes an evaluative threshold below which a causal connection may be disregarded. However, it is not necessary for present purposes to consider the proper meaning of ‘material’ and nothing more need to [sic] said about this issue.[34]
[34] [2005] FCAFC 262; (2005) 148 FCR 232; 89 ALD 258; 41 AAR 539 at [67]; 249-250; 275; 557.
In Comcare v Power,[35] Katzmann J considered the definition of “disease” as set out in s 5B of the SRC Act after its amendment by the Safety, Rehabilitation, Compensation and Other Legislation Amendment 2007 (Cth) (“the SRCOLA Act”).
[35] [2015] FCA 1502; (2015) 238 FCR 187; 149 ALD 286; 68 AAR 228.
In the decision from which the appeal had been lodged, the Tribunal had construed the definition of a “significant degree” as “a degree that is substantially more than material” as being synonymous with “more than trivial”. That construction, Katzmann J said, was a misconstruction of s 5B. Her Honour’s view was that “A contribution to a degree that is substantially more than material must necessarily be substantially greater than one which is trivial.”[36] (original emphasis)
[36] [2015] FCA 1502; (2015) 238 FCR 187; 149 ALD 286; 68 AAR 228 at [78]; 201; 301; 244.
Katzmann J went on to set out the history of the relevant definitions of “disease” in the 1971 Act and in its various guises in the SRC Act, by whatever name. In relation to the definition after its amendment by the SRCOLA Act, Her Honour said that the purpose of those amendments was to strengthen the connection between the employment and the contraction or aggravation of a disease:
[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 …
[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.
Furthermore, Katzmann J found that such a conclusion had to be reached after an evaluative exercise having regard to relevant factors including those set out in s 5B(3).[37]
B. EVIDENCE BEFORE THE TRIBUNAL
Medical evidence
[37] [2015] FCA 1502; (2015) 238 FCR 187; 149 ALD 286; 68 AAR 228 at [93]-[94]; 204-205; 304; 246-247.
Patient records from Provincial Medical Centre
The Respondent tendered patient records from Mr Ommundson’s file held by his general practice, the Provincial Medical Centre. Relevant extracts include the notes written by his treating doctors as follows:
·May 2004 – Injury to the right knee with no record of time off work or any follow up treatments or investigation.
·1 September 2004 – Injury to the left knee while working for Albion Steel. He did take some time off work but was not sure how long. On this consultation there was a possible positive McMurray’s test (for meniscal tear). At a later examination the test was thought to be negative. The diagnosis was soft tissue injury. Mr Ommundson was cleared to return to work by 9 October 2004.
·8 February 2010 – Mr Ommundson was referred to an exercise physiologist, Mr Peter Heuvelmans, for an exercise program to assist with his weight and diabetes. The form completed by Mr Heuvelmans notes “chronic bilateral knee pain”.
·29 October 2010 – Mr Ommundson suffered an injury to his right knee at work after falling. He saw Dr Ng on several occasions in November 2010. He did not have time off work and there is no real diagnosis, but Dr Ng did refer to continuing soreness, and on 2 November 2010 he prescribed Panadeine Forte, a strong analgesic. By 16 November 2010 Dr Ng reported he was much better. But four months later on 14 March 2011 he was still complaining of right knee pain. He was seen two days in a row, and it is not clear if there was time off work.
·21 Dec 2011 – reference by Dr Bonifacio to osteoarthritis of the foot only.
·22 May 2012 – letter from Dr Ng refers to Mr Ommundson using Voltaren tablets and various creams for “osteoarthritis” without stating where these were used.
·29 October 2012 – Mr Ommundson was referred to Greater West Physio which he attended on 7 November 2012. The physiotherapist’s note mentions “twisted right knee” and reference is made in a pictogram of the right knee.
·29 October 2012 – Mr Ommundson had an x-ray of the right knee which showed mild to moderate joint space narrowing and other changes which the medical experts agree is evidence of mild osteoarthritis.
·5 April 2013 – reference by Dr Bonifacio to “bilateral shoulder pain, neck pain and sore knees”.
·October 2013 – entry which reads “L Knee, did not see ortho surgeon uses a cream”.
·16 November 2013 – Applicant saw Dr Pich about his left knee. Reference made to Mr Ommundson having twisted his knee nine years ago. X-ray of the left knee was performed which showed a prominent joint effusion, no loose bodies and slight joint narrowing. He was given one day off work.

There are no other relevant entries until 4 June 2015, following the incident.
Associate Professor Neil McGill
Associate Professor Neil McGill saw Mr Ommundson on 31 August 2015, some five months after the incident, and provided a report. His examination of Mr Ommundson is the closest of the medical experts in time from the date of the incident, and thus can carry more weight with respect to the history obtained from him. He also provided supplementary reports dated 19 August 2016 and 30 January 2017. Associate Professor McGill appeared before the Tribunal in person and gave evidence.
Associate Professor McGill told the Tribunal that Mr Ommundson found it difficult to recall his medical history and various medications, and that he was somewhat vague about the timing of various symptoms. He could not recall the date of the injury stating that it was “April or May”. In relation to Mr Ommundson’s symptoms following the incident, Associate Professor McGill stated in his report dated 31 August 2015:
His main problem immediately following the fall and the next day or two was pain in the left upper buttock. That pain settled (he thought within two days) and has not recurred.
In Associate Professor McGill’s opinion, the symptoms reported by Mr Ommundson were due to worsening osteoarthritis of the left knee, and were not causally related to the incident on 26 March 2015.
Associate Professor McGill told that Tribunal that from his experience and knowledge there were three possible scenarios following the injury:
(a)The injury led to pain which settled quickly and completely.
(b)There was substantial pain following the injury which continued to deteriorate. This would therefore indicate an aggravation of the pre-existing osteoarthritis.
(c)The knee symptoms were trivial or non-existent initially following the incident and then gradually increased some time (months) after the incident. This would indicate a worsening of the osteoarthritis unrelated to the incident.
In his first report dated 31 August 2015, Associate Professor McGill stated that in his opinion Mr Ommundson had pre-existing osteoarthritis of both knees which most likely had been present for years. He pointed to several contributing factors such as Mr Ommundson's weight, age and the presence of diabetes, all of which are known to contribute to osteoarthritis.
During his initial consultation with Associate Professor McGill in August 2015, Mr Ommundson denied any significant past history of knee problems, and Associate Professor McGill’s report of 31 August 2015 was based on this history.
After subsequently being provided with computer generated medical records from the Provincial Medical Centre which include several records of prior injuries as well as some references to knee pain since 2004, Associate Professor McGill wrote a supplementary report dated 19 August 2016 in which he stated:
It was clear from the further documentation that Mr Ommundson’s statements to Dr Bodel and to me in regard to the absence of left knee symptoms prior to 2015, were incorrect … there were two medical assessments between the fall on 26 March 2015 and when he reported knee symptoms to Dr Ong on 24 (sic) June 2015 and neither of those assessments suggested knee symptoms
…
Had he suffered a significant injury in the left knee on 26 March 2015 I would have expected him to have reported substantial knee symptoms during the following two weeks. Despite what would appear to have been two visits to his general practice, there was no indication of any report of knee symptoms until more than two months later.
In his written reports and in his evidence to the Tribunal, Associate Professor McGill stated that, in his opinion, the medical evidence does not support a finding that the incident resulted in an aggravation of Mr Ommundson’s pre-existing osteoarthritis. In his report dated 19 August 2016, in commenting on the MRI report of 17 June 2016, he stated:
The symptoms from his left knee are very likely to be due to the osteoarthritis and are likely to have been the same regardless of the presence or absence of a non-displaced meniscal tear … I think the meniscal tear occurred as a result of the osteoarthritic changes in his medial compartment and not as a result of the fall.
Associate Professor McGill told the Tribunal that people will continue to work if they have sufficient incentive to do so. However, if there is a significant injury or trauma there would usually be major symptoms which reach their maximum level at an early stage, usually within a few days, and which are unlikely to increase over time. This is the scenario outlined in (b) at paragraph 45 above. The severity of the symptoms in the first few days is critical in these cases. In his opinion, in a case such as Mr Ommundson’s, where the severity of the pain is not high in the first few days, it is unlikely that the incident is responsible for increased symptoms experienced some months later.
In Associate Professor McGill’s view, the medical evidence and the Applicant’s own account supports a finding in accordance with (c) at paragraph 45 above, namely that Mr Ommundson’s knee symptoms were trivial or non-existent initially, and then gradually increased some time (months) after the incident. This, he opined, would indicate a worsening of the pre-existing osteoarthritis unrelated to the incident.
Dr Simon Coffey
Mr Ommundson was referred to Dr Simon Coffey for management by his GP Dr Beshay at the Provincial Medical Centre. Dr Coffey saw the Applicant on 18 October 2016 and provided a report to Dr Beshay on that date. Dr Coffey also provided a report to the solicitors for Mr Ommundson on 2 December 2016 and he appeared before the Tribunal by phone.
Dr Coffey is of the view that the incident on 26 March 2015 exacerbated previously asymptomatic osteoarthritis. As he stated in his report dated 2 December 2016:
It is reasonable to suggest that there was a contribution to his symptoms by the intensity of his fall.
…
On balance, it is my opinion that Mr Ommundson’s progression of symptoms in the left knee reflect an exacerbation of his previously asymptomatic osteoarthritis that exacerbation does not seem to have ceased.
But he then goes on to say:
I agree with Professor McGill's comments that the MRI scan of 17 June 2016 very likely reflects the natural progression of his knee osteoarthritis. I also agree with Professor McGill’s expectation that he would have reported substantial symptoms immediately following the injury.
This would appear to be somewhat contradictory unless he meant the natural progression was due to the injury from the incident.
In his report dated 2 December 2016 Dr Coffey agreed with Associate Professor McGill’s expectation that Mr Ommundson would have reported substantial knee symptoms immediately following the injury. In his evidence to the Tribunal, Dr Coffey stated that he accepts Mr Ommundson’s history that, for the first couple of days following the incident he did not experience knee pain, but then he began to develop increasingly significant symptoms.
Dr Coffey agreed that there was pre-existing osteoarthritis of the knee but believed it to be “minimally symptomatic”. During his evidence at the hearing he was referred to the records from the Provincial Medical Centre which indicate that Mr Ommundson had complained of injuries and pain to his knees dating back to May 2004. Dr Coffey was not perturbed by these records, stating that they were consistent with gradually worsening osteoarthritis. He also explained that the course of osteoarthritis is often variable and unpredictable.
When asked to describe what may provide an explanation for Mr Ommundson’s increased symptoms following the incident, Dr Coffey told the Tribunal that in the case of a patient like Mr Ommundson, they can manage reasonably well with compensatory mechanisms which allow them to manage pain and continue to work. When there is an injury, compensatory mechanisms are diminished, and this can lead to the joint being “out of balance” leading to accelerating problems.
Dr Coffey agreed there was nothing in the MRI dated 17 June 2016 that would indicate acute damage or trauma, and the changes were consistent with a progressive deterioration of osteoarthritis.
Dr Coffey further agreed that it was difficult to establish a causal nexus between the incident on 26 March 2015 and Mr Ommundson’s symptoms in light of the additional history of knee problems about which he was previously unaware.
Dr James Bodel
Dr James Bodel examined Mr Ommundson on 18 May 2016 and provided a report dated 30 May 2016. He subsequently provided three supplementary reports dated 8 July 2016, 1 November 2016 and 14 December 2016. Dr Bodel also gave evidence in person at the hearing.
Dr Bodel took the same initial history from Mr Ommundson as Associate Professor McGill, namely that he did not have any symptoms prior to the incident on 26 March 2015. On the basis of this history, he found that the incident caused aggravation to the osteoarthritis. In his original report dated 30 May 2016 he stated:
This gentleman was unaware of his arthritic change in the medial compartment of the left knee at the time of the accident and the medical record does not show any record of him seeking treatment for his knee just prior to the accident.
At the Tribunal hearing, Dr Bodel was taken through in some detail the reports from the Provincial Medical Centre which contradict the history provided to him by Mr Ommundson. Dr Bodel was not overly concerned about the reports of previous injuries as these had occurred some time ago and seemed to be limited in nature, with Mr Ommundson taking only a few days off work. In his view, any reports by Mr Ommundson of pain in the knee were consistent with long standing osteoarthritis of the knee, which he had already reported.
Dr Bodel agreed with Associate Professor McGill's conclusion that one would have expected Mr Ommundson to have had major symptoms in the knee in the week or two following the injury. As he states in his supplementary report dated 1 November 2016:
I do accept that the delay in reporting (two months) would be an unusual circumstance if significant structural injury did occur at the time of the event on 26 March 2015. One would have anticipated some formal reporting of the problem and investigations if significant structural injury occurred on that date.
In this report he further states:
In a degenerate knee, a medial meniscal tear is much easier to occur. It can occur spontaneously and frequently does. The delay in the onset of complaints from the date of injury to the reporting to the local doctor in early June does imply therefore that the specific event at work is probably not as significant as I thought at the time of the clinical presentation. I had been under the impression that there was a more immediate complaint of knee pain but the documentation does not seem to imply that
Dr Bodel was initially of the opinion that the tear of the left medial meniscus seen on the MRI scan performed by Dr Hassan on 17 June 2016 could have been traumatic in nature and related to the injury:
This gentleman’s clinical condition in the knee is partly due to longstanding degenerative change but the episode of injury at work on 26 March 2015 is a material aggravation to that underlying degenerative change and has caused new pathology by means of the degenerate tear of the medial meniscus.
This view is in contrast to that of both Associate Professor McGill and Dr Coffey who thought it most likely the tear was degenerative in nature and was a result of long standing osteoarthritis rather than being related to the injury. In his evidence to the Tribunal Dr Bodel agreed with this assessment.
Dr Bodel said that it was unlikely that Mr Ommundson had suffered a significant injury as a consequence of the incident on 26 March 2015. He formed this view after the evidence was put to him about Mr Ommundson not mentioning his symptoms during two medical appointments in May 2015, that he continued working full-time following the incident, and that he did not see a doctor about his left knee symptoms until 4 June 2015.
Pre-employment medical declaration and assessment forms
On 15 April 2008 Mr Ommundson underwent a pre-employment medical examination for Australia Post. When asked to outline any previous medical problems Mr Ommundson answered “no” next to the question “Do you or have you ever had the following … Knee injury, swelling or pain”. The only finding at that time was “some laxity of the left LCL”, which refers to the Lateral Collateral Ligament. Associate Professor McGill explained that this ligament stabilises the knee and laxity can be caused by prior injury to the ligament or by osteoarthritis which decreases the height of the articular cartilage, bringing the bones of the joint closer together thereby loosening the ligament.
The records of the pre-employment medical support the other medical evidence before the Tribunal which indicates that in April 2008 Mr Ommundson’s knees were in reasonable condition, and that his symptoms did not commence until some years later in or around 2012.
Evidence of the Applicant – Mr Frederick Ommundson
Mr Ommundson provided two statements dated 14 June 2016 and 18 April 2017 and gave evidence at the hearing.
In his evidence to the Tribunal, Mr Ommundson described his previous work history and was asked about the practitioners’ notes from Provincial Medical Centre, including the injuries he sustained to his left and right knees in May and September 2004 respectively when he was working at Albion Steel. He said he could not recall if he took time off work when these occurred or what the doctor said about the injuries, but that the injuries resolved quickly and he returned to work on full duties.
Pre-employment medical examination
In his evidence to the Tribunal, Mr Ommundson was asked about the form he completed and signed when he underwent the pre-employment medical examination for Australia Post in April 2008. He explained his failure to answer “yes” to the “Knee injury, swelling or pain” question by saying that he thought it referred to his current health status, although the question read “Do you or have you ever had the following?”.
The Tribunal considers Mr Ommundson’s explanation to be plausible as the injuries in 2004 were four years prior to the medical assessment and were not serious. In addition, his knees seemed to be in good shape at the time as he passed the medical examination, including performing five squats. Also, the GP records show that his knee problems did not start for some years after the medical assessment.
Mr Jones for the Respondent emphasised the fact that Mr Ommundson signed his pre-employment health questionnaire stating that the information provided was truthful and acknowledging the penalty if it was otherwise. Mr Ommundson was adamant that he did not believe he had, nor did he intend, to provide false information on the form. The Tribunal accepts that many people do not fully read or even fully understand the process and, like Mr Ommundson, will sign the form as they are keen to co-operate when undergoing such a pre-employment examination.
Mr Ommundson confirmed that he commenced working at Australia Post on 14 July 2008. His work involves loading and uploading mail to the truck and strapping the vehicle and then driving. He said most of the trucks are automatic vehicles although some are manual which require using his left leg. He had no work-related medical conditions in the first couple of years of his employment.
Prior medical history
In his evidence, Mr Ommundson was asked about when he began to experience problems with his knees. He was asked about his visit to the physiotherapist Mr Heuvelmans in February 2010 whose notes record “chronic bilateral knee pain”. There was considerable disagreement between the parties about the significance of this record. The Tribunal accepts that this is not a diagnosis, but notes that Mr Ommundson must have made mention of knee pain during the course of his consultation with Mr Heuvelmans.
Mr Ommundson confirmed that he did incur a minor injury to his right knee at work in October 2010 and he saw Dr Ng who said it was not significant and told him to rest for a couple of days and take some Voltaren. He said that he did recall the incident recorded in the practitioners’ notes dated 1 and 2 November 2010 that make reference to him falling at work and landing on his right leg. He said he did not recall the visits to his GP recorded in the entries of 14 and 15 March 2011 which refer to continuation of the knee pain arising from the fall in November 2010. He did not recall telling his GP about osteoarthritis in his foot and using Voltaren as recorded in the practitioner’s notes dated 2 December 2011. He denied that he took Panadol Osteo as recorded in the notes dated 12 January 2012 as he is unable to drive on this medication.
Mr Ommundson was asked by Mr Jones about the medical records from Provincial Medical Centre that indicate that from May 2012 he was reporting knee pain to his general practitioner. He was asked about a letter dated 22 May 2012 from Dr Ng addressed “To Whom It May Concern” which certifies “Frederick Ommundson suffers from osteoarthritis and uses Voltaren tablet and gel, Mestal cream, Menth Deep Heat Ice gel, Dencorub amd [sic] Goanna cream”. He told the Tribunal that he used these creams, which was his “own concoction” not on his knees, but on his elbows. He has lumps on both elbows and he uses this to soften his elbows. He did not know why the letter was written, or for whom it was intended. He said he would not use this “concoction” on his knees as it would burn them.
Mr Ommundson was asked about a note by Dr Ng in the medical records dated 29 October 2012 that refers to right knee pain. He said he thought that this was when he twisted his knee. He could not recall being referred to a physiotherapist, and denied he had radiology done on his right knee at this time by Dr Geier at St Clair Imaging until he was shown the radiology report dated 29 October 2012 that refers to “mild to moderate joint space narrowing” in his right knee.
Mr Ommundson was asked about a diagram depicting his right knee prepared by a physiotherapist on 7 November 2012 and a reference to deep heat and emu oil. He said that he did not recall this appointment, and that he would not use these creams on his knees.
Mr Ommundson was asked about the practitioner’s note dated 5 April 2013 that refers to bilateral shoulder pain, neck pain and sore knees. He explained that at this time he was working the airport run which was very hard physically, and he was suffering aches and pains generally, including in his knees.
Mr Ommundson was asked about the practitioner’s note dated October 2013 which reads “(L) Knee did not see ortho surgeon uses a cream”. He said that he could not remember whether he mentioned his left knee to the doctor at this time, but that he was not using a cream on his knee. He was asked about the practitioner’s note by Dr Pich dated 16 November 2013 which refers to a referral for an x-ray for his left knee. He said he could not recall this visit nor the radiology report of his left knee done by Dr Geier at St Clair Imaging at this time.
Incident on 26 March 2015
Mr Ommundson described the incident which occurred while he was at work on 26 March 2015 and said that he fell down on his left knee and then left hip. After the fall, he said he gathered himself and stood up and his whole body ached, but he had no pain immediately in his knee following the incident. He reported the incident to his supervisor and to the health and safety representative. He then completed the two required forms and continued on with and completed his shift.
In his statement dated 14 June 2016 he said: “After completing the paperwork, I completed my shift and returned home. I did not feel any pain in my left knee at this stage”.

In his evidence to the Tribunal, Mr Ommundson said he could not remember telling Associate Professor McGill what he stated in his report dated 31 August 2015 that following the fall he had pain in his left upper buttock:
His main problem immediately following the fall and the next day or two was pain in the left upper buttock. That pain settled (he thought within two days) and has not recurred.
Mr Ommundson told the Tribunal that the day following the incident his left knee ached when he woke up and he used elastic bandages and Voltaren on his leg. The pain increased over the course of the next week and he used more Voltaren tablets and bandages which allowed him to continue to work. Over time he increased the medication he was taking such that he was taking 30 Voltaren and 96 Panadol every 15 days. He said this reduced the pain he was experiencing and he was able to work.
Mr Ommundson told the Tribunal that he did not go and see a doctor at this time because he needed to continue to work because he is the primary carer for his disabled brother, Milton Ommundson, who lives with him.
The first time Mr Ommundson attended his general practice following the incident was on 12 May 2015 when he saw Dr Patrick Chew. He told the Tribunal that this visit was about his diabetes and high blood pressure. The practitioner’s notes, which are brief, make no mention of a knee problem, nor was there a prescription given to him for any medication. He told the Tribunal that he did not mention his knee problem at this time because the doctor would have “taken him off the road”.
The next occasion on which Mr Ommundson saw a doctor was on 15 May 2015 when he saw Dr Hanns Lim for a RMS (Roads and Maritime Services) medical examination. The practitioner’s notes indicate, and Mr Ommundson confirmed, that there was no mention made by him of a knee problem on this occasion. A copy of the RMS medical examination form was produced which has a box ticked “No” to the question “Does the patient have a musculoskeletal disorder?”.
Mr Ommundson was asked why in the practitioners’ notes of these two visits there is no mention of any complaint made by him of knee symptoms. Mr Ommundson said that the two visits to the doctor in May 2015 were for matters unrelated to his knee problems.
In the two month period from 26 March 2015 until 1 June 2015 Mr Ommundson attended work for full hours and performed his normal duties. He said that during this period his pain level increased to nine out of ten. He did not mention the knee pain to anyone because he “did not want to be taken off the road”.
Mr Ommundson was asked whether he drove a manual truck following the incident and he said he did not. It was noted that this was inconsistent with what Associate Professor McGill reported he had told him in his report of 31 August 2015:
He could not recall the interval of time but when he was asked to drive a manual truck he started feeling pain in the left knee … Although he was uncertain of the time, over a relatively short period of time the pain in his left knee deteriorated.
Mr Ommundson told the Tribunal that he had an agreement with the other drivers that he would not drive manual trucks after the incident.
Medical treatment following the Incident
Mr Ommundson confirmed that he first mentioned the injury to his left knee to a doctor on 4 June 2015 when he saw his general practitioner, Dr Ong. The handwritten notes of Dr Ong record “Bruising on outer side of (L) knee settled in a few days. Now feeling pain over (L) knee. Been there for some time. On 31/5/15 could not walk. No pressure on knee”.
The medical certificate written by Dr Ong dated 4 June 2015 provides a diagnosis of “soft tissue injury” and recites “While checking trucks fell and injured L hip and L knee then, Now limps and L knee gives way since 31/5/15”.
An x-ray of Mr Ommundson’s left knee of 4 June 2015 by Dr Geier disclosed: “Moderate joint space narrowing … at the medial compartment … a medium sized joint effusion is evident”.
Mr Ommundson was declared unfit for work by Dr Ong on 4 June 2015 and he lodged his claim for compensation on 9 June 2015. He was notified of the Determination that his claim was denied on 22 June 2015, and he sought the Reconsideration on 4 August 2015. When he resumed work he was put on light duties and could only drive automatic vehicles.
According to Mr Ommundson, he did not see the doctor about his knee during the more than two-month period between the date of the incident on 26 March 2015 and 4 June 2015 for a number of reasons.
First, he thought and hoped his knee would get better without any medical intervention. In his initial statement dated 21 July 2015 he stated:
I did not feel that it was injured enough to go to the doctor at that time and thought I would just keep an eye on it and continued to go to work … On the 4^th June as I was walking up the stairs my leg collapsed on me due to the knee gave out on me … I had to go home, I then went to see my doctor and he examined my injury and sent me to do xrays, rest, I then applied for workers compensation.
In his evidence to the Tribunal, Mr Ommundson said that following the incident he was in considerable pain and he was taking large amounts of medication throughout this period, including Voltaren and Panadol. He said he asked one of the doctors whom he saw during May 2015 whether the dose he was taking would affect his ability to drive and the doctor said it was okay for him to take this amount. There is no mention of this in the practitioners’ notes, nor is there a prescription recorded, although these medications can be bought over the counter. Mr Ommundson told the Tribunal that the doctor did not ask him where he had pain, nor why he was taking such large doses of these medications, and he did not tell the doctor because he did not want to be taken off the road.
The second reason given by Mr Ommundson for not seeking medical attention for the left knee injury he claims he sustained as a result of the incident is that he was worried if he reported the pain to his doctors or to his employer, he would be taken off his full duties and would lose pay. He said in his statement dated 18 April 2017 that he was concerned that if he were to have his income reduced that he would not be able to continue to provide financial support for his siblings who live with him, Mr Milton Ommundson and Ms Robyn Ross. He repeated this several times during his evidence at the Tribunal hearing. However, this is not corroborated by the notes of Mr Ommundson’s general practitioners, and there is no evidence that he mentioned this reason or concern (or at least it was not reported) to any of the three medical experts who examined him.
Evidence of the Applicant’s siblings – Milton Ommundson and Robyn Ross
Mr Milton Ommundson, the Applicant’s brother, made a statement dated 7 February 2017 and gave evidence to the Tribunal by phone. He supported Mr Ommundson's version of events saying that he noticed his brother developed a limp soon after the incident which gradually worsened. He was awake when his brother arrived home after his shift on the day of the incident, and he noticed he was limping. He asked his brother what happened and he said that he fell at work. He asked him why he did not go to the doctor and his brother said he could not afford it. He reported noticing that his brother became short tempered and irritable after the incident and often appeared to be in pain, and he observed him taking Voltaren. He said that before the incident his brother was in excellent health for a man of his age and there was no limp. He was unaware of any previous injuries that his brother had sustained or of any medical conditions from which he suffered, including problems with his knees.
Ms Robyn Ross, the Applicant’s sister, made a statement dated 16 January 2017 and appeared in person at the hearing. She told the Tribunal that she and her two brothers had been living together for over thirty years. She said that before the incident Mr Ommundson had not complained to her about pain in his knees. Ms Ross described a similar picture to that given by Milton in relation to Mr Ommundson’s condition following the incident except that she failed to mention the limp. When pressed by Mr Jones as to why she failed to do so, she provided a complicated explanation about not having access to a mobile phone to amend her statement.
Ms Ross told the Tribunal that after the incident she observed that her brother increased the amount and frequency of Voltaren and Panadol he was taking. She told the Tribunal that she would help her brother by rubbing various creams such as deep heat into Mr Ommundson’s knees. She did not remember him having applied creams to his elbows as claimed in Mr Ommundson’s evidence. She also said her brother was in excellent health with no limp prior to the incident.
Mr Jones pointed out during cross-examination of both siblings that their statements contained two paragraphs that were identical, and suggested to them that they may have been colluding or at least discussing Mr Ommundson’s condition among themselves. Both denied this and thought that it was coincidental that the two paragraphs were identical. Ms Ross asserted that she did not discuss Mr Ommundson’s problems with him because he was so short tempered she was afraid to bring it up. Mr Jones was incredulous that she would not have discussed Mr Ommundson’s condition with Milton even when her brother (the Applicant) was at work. Eventually she conceded that there may have been some discussion about this.
The Tribunal recognises and accepts that both witnesses were not accustomed to giving evidence and were easily unsettled under pressure from an experienced barrister. It is reasonable to assume a degree of bias on their part in supporting their brother's claim, which the Tribunal has considered when weighing their evidence. The evidence of both witnesses did not greatly assist the Tribunal as it was at the least defensive, sometimes evasive, and often inconsistent, and therefore the Tribunal has not placed great weight on their evidence in reaching its findings.
Evidence of Mr Greg Mingle
Mr Greg Mingle, a transport driver who worked with Mr Ommundson occasionally on night shift, provided a written statement dated 8 June 2016 and gave evidence in person at the hearing. He reported noticing that Mr Ommundson had developed a limp at some stage, and was told by Mr Ommundson that “a few weeks ago he tripped”. He said he did not ask Mr Ommundson whether he had seen a doctor. However, Mr Mingle could not be certain about when that conversation took place. He said it could have been in late May 2015, but was not sure.
C. DID MR OMMUNDSON SUFFER AN “INJURY” FROM THE INCIDENT?
Putting to one side the causal or temporal issues related to Mr Ommundson’s employment, the first issue for the Tribunal’s consideration is whether the condition for which he seeks compensation can be considered a “disease” or an “injury other than a disease” for the purposes of the SRC Act.
Mr Grey argued that the claimed condition is an “injury (other than a disease)”. He submitted:
If the Tribunal accepts that the Applicant suffered a distinct increase in pain arising from his left knee as a result of the fall, and that that represented a change in his pre-existing physiological state, then the Tribunal is entitled to conclude that the Applicant suffered an “injury (other than a disease)”. It is submitted that it is clear that what happened here is a rather rapid change in the rate of symptomatic progression of his condition over the space of two months. That would be sufficient to satisfy the test of a change in the physiological state.
Injury (other than a disease) – s 5A(1)(b) SRC Act
The Applicant submits that he suffered an “injury” as defined under s 5A(1) of the SRC Act. According to the High Court in May and the authorities outlined above, for it to be an “injury” under s 5A(1)(b) there must have been “some definite or distinct physiological change or physiological disturbance for the worse which, if not sudden, is at least identifiable.”[38] If this is so, then the condition may be treated as an injury simpliciter (frank injury), under s 5A(1)(b).
[38] [2016] HCA 19; (2016) 331 ALR 369; 150 ALD 392; 90 ALJR 626 at [60]; 381; 404; 635 citing Kennedy Cleaning Services Pty Limited v Petkoska [2000] HCA 45; (2000) 200 CLR 286; 174 ALR 626; 74 ALJR 1298; Gleeson CJ, Gaudron, McHugh, Gummow, Kirby and Hayne JJ; Callinan J dissenting.
On the basis of the evidence before it, and for the reasons outlined in the following paragraphs, the Tribunal is not satisfied that Mr Ommundson suffered an “injury (other than a disease)” under the SRC Act.
According to Mr Ommundson’s own history, he had no left knee symptomatology at the time of the incident or immediately thereafter. In his statement dated 14 June 2016 he stated: “After completing the paperwork, I completed my shift and returned home. I did not feel any pain in my left knee at this stage”.
This account is consistent with the history he provided to Associate Professor McGill on 31 August 2015, which he reported as follows:
His main problem immediately following the fall and the next day or two was his pain in the left upper buttock. That pain settled (he thought within two days) and has not recurred.
In the history obtained by Professor McGill during his examination of Mr Ommundson on 31 August 2015, five months after the incident on 26 March 2015, he was somewhat vague about the timing of various symptoms. He could not recall the date of the injury stating that it was in “April or May”. In his evidence, Mr Ommundson’s co-worker Mr Greg Mingle reported noticing that Mr Ommundson had developed a limp and was told by him that “a few weeks ago he tripped”. However, Mr Mingle could not be certain about when that conversation took place, and said it could have been in late May, but he was not sure.
The first time Mr Ommundson attended his general practice following the incident was on 12 May 2015 when he saw Dr Patrick Chew. The evidence before the Tribunal, including Mr Ommundson’s evidence, is that he made no mention of a knee problem during this visit, nor was there a prescription given to him for any medication. The next occasion on which Mr Ommundson saw a doctor was on 15 May 2015 when he saw Dr Hanns Lim for a RMS medical examination. Again, the evidence before the Tribunal is that he did not mention knee pain on his occasion and the RMS medical examination indicated an answer of “No” to the question “Does the patient have a musculoskeletal disorder?”. Mr Ommundson says that in May 2015 he was experiencing severe knee pain, which he rated at a level of nine out of ten, and he was taking substantial quantities of Panadol and Voltaren daily. He claims he asked the doctor about whether it was safe for him to take such large doses of these medications and was told it was okay for him to do so. He claims that the doctor did not ask why he was taking this medication.
The Tribunal considers it implausible that if, as Mr Ommundson claims, he was experiencing severe knee pain in May 2015 and taking large doses of medication, he would not have either told the doctor(s) about his symptoms or that the doctor(s) would not have observed this condition, particularly if, as Mr Ommundson and his siblings claim, he had at this time developed a limp. The Tribunal further considers it implausible that if, as Mr Ommundson claims, he asked the doctors(s) about whether it was safe for him to take such large doses of medication, he was not asked for what condition or symptoms he was taking this medication.
The Tribunal has had regard to Mr Ommundson’s explanation as to his reasons for not seeking medical treatment for his claimed severe knee pain in the weeks following the incident and for delaying the reporting of his symptoms to his general practitioner until 4 June 2015. Whereas it accepts that Mr Ommundson felt an obligation to continue working in order to support himself and his siblings financially, and that he therefore would have been prepared to withstand a degree of pain in order to continue to perform his regular shifts, the Tribunal does not accept that he would have taken no time at all off work in the two-month period following the incident if his pain was as severe as he claims, and that his work performance would not have been materially affected as a consequence of his claimed severe knee pain.
The Tribunal finds, on the basis of the medical and other evidence before it, that Mr Ommundson did not on the date of the incident sustain an “injury” under s 5A(1)(b) of the SRC Act as there is inadequate evidence to support a finding as required in the words of the High Court in May, that there was “some definite or distinct physiological change or physiological disturbance for the worse which, if not sudden, is at least identifiable”.[39]
[39] [2016] HCA 19; (2016) 331 ALR 369; 150 ALD 392; 90 ALJR 626 at [60]; 381; 404; 635 citing Kennedy Cleaning Services Pty Limited v Petkoska [2000] HCA 45; (2000) 200 CLR 286; 174 ALR 626; 74 ALJR 1298; Gleeson CJ, Gaudron, McHugh, Gummow, Kirby and Hayne JJ; Callinan J dissenting.
Disease – s 5A(1)(a) and s 5B(1)(b) SRC Act
The second issue for consideration in determining whether Mr Ommundson suffered an “injury” as defined under s 5A(1) of the SRC Act is whether he suffered from a “disease” for the purposes of s 5A(1)(a) of the SRC Act and specifically whether this was, under s 5B(1)(b) of the SRC Act, an “aggravation of … an ailment … that was contributed to, to a significant degree, by [his] employment [with Australia Post]”.
The medical evidence before the Tribunal is that Mr Ommundson suffers from longstanding osteoarthritic changes to both his knees. This condition can be regarded, if the necessary connection with employment is established, as an “ailment” for the purposes of the SRC Act. What is disputed is the degree of severity of the symptoms suffered by Mr Ommundson as a result of these osteoarthritic changes to his left knee prior to the incident on 26 March 2015, and therefore the impact (aggravation) of the incident, if any, on this degenerative condition.
The Tribunal has had regard to the reports of injuries Mr Ommundson sustained in May and September 2004 and in October 2010 and finds that these are of little significance in determining the condition of his knees prior to the incident as they are regarded by the medical experts to have been relatively minor and self-limiting and required Mr Ommundson to have taken little or no time off work. The medical evidence establishes that the October 2010 injury was more serious but was to the right knee, and not therefore relevant to his claim based on his left knee symptomatology.
The Tribunal finds that the medical evidence shows that from 2012 onwards Mr Ommundson complained of pain and osteoarthritis, initially in the right knee and then, later, in the left knee, and x-rays also show mild osteoarthritis changes in both knees. But it does seem that references to osteoarthritis symptoms in the left knee are not as severe as in the right and, considering that Mr Ommundson continued to work throughout this period, the symptoms must have been moderate.
Given the above, the Tribunal finds that Mr Ommundson’s failure to mention the injuries to his knees in the past to the three medical experts who examined him, including when he was examined for his pre-employment medical, is understandable as two of the injuries were minor and occurred many years ago. The Tribunal accepts that latitude must also be given to Mr Ommundson who does not have a good knowledge of medical or legal matters. The Tribunal also cannot be certain how detailed the questions were that were asked of the Applicant in those medical examinations, nor whether Mr Ommundson understood the import of these questions.
However, the Tribunal finds it is implausible that Mr Ommundson was not aware of some previous knee problems, including in his left knee, when he had undergone x-rays of both knees in the couple of years prior to the incident, and in late 2013 his doctor had discussed with him his use of cream on his left knee, had referred him for an x-ray of that knee, and discussed with him seeing an orthopaedic surgeon.

The Tribunal further finds it implausible that Mr Ommundson was not self-medicating by taking a range of medications and using numerous creams on his knees in order to alleviate the pain from his knee osteoarthritis from at least mid-2012. This finding is supported by the letter dated 22 May 2012 in which Dr Ong certified “Frederick Ommundson suffers from osteoarthritis and uses Voltaren tablet and gel, Mestal cream, Menth Deep Heat Ice Gel, Dencorub amd [sic] Goanna cream”. Ms Ross told the Tribunal she would rub cream on her brother’s knees, and the Tribunal does not accept Mr Ommundson’s claim that he used these creams to soften his elbows, and that he is unaware of why this letter was written by Dr Ong.
This finding is further supported by the practitioner’s note dated October 2013 which reads “L Knee, did not see ortho surgeon uses a cream”. This entry is significant as it refers to the left knee, and if referral to a specialist had been contemplated, if not recommended, then this indicates the treating doctor considered that Mr Ommundson’s left knee could require surgery. The Tribunal does not accept Mr Ommundson’s evidence that he was not at this time using a cream on his knee. The medical evidence further supports this finding in that on 16 November 2013 Dr Pich referred Mr Ommundson for an x-ray on his left knee which diagnosed a prominent joint effusion, no loose bodies and slight joint narrowing.
On the basis of the evidence before it, particularly the medical evidence provided by the three medical experts, the Tribunal is satisfied that at the date of the incident Mr Ommundson suffered osteoarthritis in his left knee since at least 2012 which was sufficiently severe to have required him to regularly take medication and use various creams, and which caused his general practitioner to discuss with him seeing an orthopaedic surgeon.
It further finds on the basis of the medical evidence that, if the incident on 26 March 2015 had indeed aggravated Mr Ommundson’s pre-existing osteoarthritis, he would have experienced substantial, deteriorating pain following the injury.
As the evidence before the Tribunal indicates that for more than two months after the incident Mr Ommundson continued to work his regular full-time shifts, did not visit his GP to have his knee examined, nor did he mention his knee symptoms when he saw a doctor on two occasions in May 2015 despite the fact the pain on his account at this time was severe, this supports a finding that Mr Ommundson did not experience substantial pain following the incident which continued to deteriorate.
Such a finding would discount the existence of the scenario described by Associate Professor McGill in (b) in paragraph 45 above, indicating an aggravation of the pre-existing osteoarthritis.
The Tribunal finds that the evidence before it is consistent with the scenario described by Associate Professor McGill in (c) in paragraph 45 above, namely that Mr Ommundson’s knee symptoms were minor immediately following the incident and gradually increased over time. The fact that Mr Ommundson first reported the incident and the claimed injury to his left knee to Dr Ong on 4 June 2015, and that he did not mention his severe knee symptoms to the doctors he saw in May 2015, are consistent with this explanation of the impact of the incident. The Tribunal therefore finds, consistent with Associate Professor McGill’s opinion, that this indicates a worsening of Mr Ommundson’s left knee osteoarthritis during the months following the incident that was unrelated to the incident. It therefore finds that there is no causal connection as required by Treloar between the worsening of the osteoarthritis in Mr Ommundsman’s left knee and the incident on 26 March 2015.
Accordingly, the Tribunal is not satisfied that Mr Ommundson suffered a “disease” for the purposes of s 5A(1)(a) of the SRC Act read with s 5B(1)(b) of the SRC Act.
As the Tribunal is not satisfied that Mr Ommundson suffered a “disease”, it is not necessary for it to consider whether the “disease” was “contributed to, to a significant degree, by the employee’s employment by the Commonwealth” pursuant to s 5B(1) and s 5B(3) of the SRC Act.
Further, as the Tribunal is not satisfied that Mr Ommundson suffered a “disease”, it does not need to consider the application of s 7(7) of the SRC Act to determine whether the disease shall not be taken to be an “injury” to him for the purposes of the SRC Act.
DECISION
The decision under review is affirmed.

I certify that the preceding 136 (one hundred and thirty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk & Dr W Isles, Member.

...............[sgd].........................................................
Associate
Dated: 4 September 2017

Date(s) of hearing: 1-3 May 2017

Counsel for the Applicant: Mr L Grey

Solicitors for the Applicant: Ms R Gracie, Carroll & O'Dea Lawyers

Counsel for the Respondent: Mr P Jones

Solicitors for the Respondent: Ms D Hatton, Australian Postal Corporation

Date(s) of hearing:	1-3 May 2017
Counsel for the Applicant:	Mr L Grey
Solicitors for the Applicant:	Ms R Gracie, Carroll & O'Dea Lawyers
Counsel for the Respondent:	Mr P Jones
Solicitors for the Respondent:	Ms D Hatton, Australian Postal Corporation