Phillips and Australian Capital Territory (Compensation)

Case •

[2019] AATA 936

•

20 May 2019

Phillips and Australian Capital Territory (Compensation) [2019] AATA 936 (20 May 2019)

Division:GENERAL DIVISION

File Number(s):      2016/5772

Re:Linda Phillips

APPLICANT

Australian Capital TerritoryAnd  

RESPONDENT

Decision

Tribunal:Senior Member Linda Kirk

Date:20 May 2019

Place:Canberra

The Tribunal affirms the reviewable decision.

........................................................................

Senior Member Linda Kirk

Catchwords

COMPENSATION – achilles tendonitis/tendinopathy – whether claimed condition is an ailment or injury simpliciter – whether claimed condition arose out of or in the course of her employment – meaning of ‘place of work’ and ‘ordinary recess’ considered – whether Applicant injured while undertaking activity ‘associated with’ her employment or at the ‘direction or request of the Commonwealth’ – whether Applicant’s employment significantly contributed to her condition – decision under review affirmed

Legislation

Safety, Rehabilitation and Compensation Act 1988, ss 4, 5A, 5B, 6, 14

Cases

Australian Postal Corporation v Burch (1998) 156 ALR 483
Charles R Davidson Co v M’Robb [1918] AC 304
Comcare v Mooi (1996) 69 FCR 439
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Foley and Comcare [2012] AATA 458
Kavanagh v The Commonwealth (1960) 103 CLR 547
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286
May v Military Rehabilitation and Compensation Commission (2015) 233 FCR 397
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Prain v Comcare [2016] AATA 459
Re May and Military Rehabilitation and Compensation Commission [2011] AATA 886
Weston v Great Bolder Mining Ltd (1964) 112 CLR 34

Secondary Materials

ACT Public Service Administrative and Related Classifications Enterprise Agreement 2013-2017

REASONS FOR DECISION

Senior Member Linda Kirk

20 May 2019

INTRODUCTION

  1. Linda Phillips (‘the Applicant’) was born in June 1967. She was employed by ACT Health (‘the Agency’) from January 1986 to October 2016. 

  2. In November 2014 the Applicant was employed as a Senior Officer Grade C Information Manager, which was an administrative data management role in the Agency’s Strategy and Corporate division.[1] 

    [1] T8, p35.

  3. In November 2014 the Agency operated from leased premises at 11 Moore Street, Canberra City (‘the Agency’s premises’). The Agency did not have any lease over, or other claim to, the public footpath running along the western side of Moore Street and its employees’ duties were not carried out on the footpath.[2]

    [2] Exhibit R6, Statement of Janine Hammat dated 27 June 2018 at para 8.

  4. On 17 February 2015 the Applicant made a claim under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”) for ‘Achilles tendon injury/Achilles tendinitis’ (‘the Claimed Injury’) which she claimed developed following an incident on 25 November 2014 in which the Applicant injured her ‘Achilles tendon left leg’ whilst assisting an elderly man who had fallen on the pavement near the corner of Moore and Rudd Streets, Canberra (‘the November 2014 incident’).

  5. Comcare issued a determination dated 4 May 2015 denying liability under s 14 of the SRC Act.[3]  It determined that it was not liable for the Applicant’s ‘Achilles bursitis/tendonitis’ on the basis that that injury occurred whilst the Applicant was on a recess or interval from her employment, and the Applicant was not performing an activity at the direction or encouragement of her employer. The injury therefore did not arise out of or in the course of the Applicant’s employment.

    [3] T21.

  6. The Applicant sought reconsideration of Comcare’s decision.  In a decision dated 29 June 2015, Comcare affirmed the determination denying liability (‘the Reviewable Decision’).[4] Due to the ACT Government’s transition to obtain a self-insurance licence under Part VIII of the SRC Act, which was effective from 1 March 2019, the Australian Capital Territory is now the Respondent.

    [4] T25.

  7. On 14 November 2016, the Applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the Reviewable Decision.[5]

    [5] T2.

  8. The review application was heard by the Tribunal at a hearing in Canberra on 10, 11 and 12 December 2018 and 4 February 2019.  The following witnesses gave oral evidence at the hearing:

    ·the Applicant;

    ·Mr Andrew Bailey;

    ·Mr Philip Ghiradello;

    ·Ms Janine Hammat;

    ·Dr Geoffrey Stubbs; and

    ·Dr John Bentivoglio.

  9. The following documents were before the Tribunal:

    ·Applicant’s Statement of Facts, Issues and Contentions dated 5 October 2018;

    ·Undated statement of the Applicant filed 19 March 2018 with annexures (Exhibit A1);

    ·Witness statement of Mr Stephen Watts dated 19 March 2018 (Exhibit A2);

    ·Witness statement of Mr Andrew Brown dated 15 March 2018 (Exhibit A3);

    ·Summons material containing clinical notes of Dr Wilson Lo (Exhibit A4);

    ·Summons material containing clinical notes of Dr Human (Exhibit A5);

    ·Undated statement of Mr Andrew Bailey with tracked changes (Exhibit A6);

    ·Email from the Applicant dated 7 December 2018 (Exhibit A7);

    ·Statement of Mr Philip Ghiradello with tracked changes (Exhibit A8);

    ·Medical Report of Dr John Bentivoglio dated 27 October 2017, and briefing letter to Dr John Bentivoglio dated 22 August 2017 (Exhibit A9);

    ·Document titled 'Leukofoam: Orthopaedic Support Foam' (Exhibit R1);

    ·Document titled 'Pro-Tec Night Splint' (Exhibit R2);

    ·Summons documents titled 'Workplace Safety Physiotherapy Clinical Notes' from pages 228 to 239 (Exhibit R3);

    ·Statement of Mr Andrew Bailey dated 22 February 2018 (Exhibit R4);

    ·Statement of Mr Phillip Ghiradello dated 8 March 2018 (Exhibit R5);

    ·Witness Statement of Ms Janine Hammat dated 27 June 2018 (Exhibit R6);

    ·Medical Report of Dr Geoffrey Stubbs dated 15 March 2017and briefing letter to Dr Stubbs dated 1 March 2017 (Exhibit R7);

    ·Respondent’s s 37 documents in Application 2016/5772 (T1-T27, pages 1-79) (Exhibit R8)

    ·Respondent’s Statement of Facts, Issues and Contentions dated 10 August 2018;

    ·Respondent’s Submissions dated 4 February 2019.

    LEGISLATIVE FRAMEWORK

    SRC Act

  10. An employee’s entitlement to compensation under the SRC Act is conferred by s 14(1) which provides that the Australian Capital Territory 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.

  11. ‘Injury’ is defined in s 5A of the SRC Act:

    (1)…

    (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.

  12. A ‘disease’ is defined in s 5B of the SRC Act to mean, so far as this case is concerned:

    (1)…

    (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.

  13. An ‘ailment’ is defined in s 4 of the Act to mean:

    … any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).

  14. Section 6 of the Act provides for when an injury may be treated as having arisen out of or in the course of employment:

    Injury arising out of or in the course of employment

    (1)  Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained:

    (a)   …

    (b)   while the employee was at the employee's place of work, for the purposes of that employment, or was temporarily absent from that place during an ordinary recess in that employment; or

    (c)  while the employee was temporarily absent from the employee's place of work undertaking an activity:

    (i)  associated with the employee's employment; or

    (ii)  at the direction or request of the Commonwealth or a licensee; or

    ISSUES FOR DETERMINATION

  15. The issues for determination in the review are:

    (1)       Whether the Applicant’s suffered an ‘ailment’ or an ‘injury (other than a disease)’?

    (2)If the Applicant suffered ‘an injury (other than a disease)’;

    (a)Whether the Applicant’s injury arose out of or in the course of her employment under s 5A or 6(1) of the SRC Act?

    (i)Whether the injury occurred whilst the Applicant was at her ‘place of work’ or was temporarily absent from that place during an ‘ordinary recess’ within the meaning of s 6(1)(b) of the SRC Act?

    (ii)Whether the injury occurred whilst the Applicant was undertaking an activity ‘associated with’ her employment or at the ‘direction or request of the Commonwealth’ within the meaning of that term in s 6(1)(c) of the SRC Act?

    (iii)Was the Applicant injured during an interval in an overall period of employment and if so:

    (A)Was the Applicant injured whilst engaged in an activity or whilst at a place?

    (B)Did the Applicant’s employer induce or encourage the Applicant to engage in the activity that she was engaged in at the time she was injured or induce or encourage her to be at the place where the injury occurred.

    (3)       If the Applicant suffered ‘an ailment’;

    (a)Whether the Applicant’s employment significantly contributed to the development of that ailment within meaning of that term in s 5B of the SRC Act?

    EVIDENCE BEFORE THE TRIBUNAL

    Applicant’s work with the Agency

  16. The Applicant’s duties as a Senior Officer Grade C Information Manager with the Agency included developing and maintaining the Directorate’s metadata resources, and documenting policies, procedures, and standards for managing data definitions.[6]  The Applicant worked at the Agency’s premises..

    [6] T7, p 32.

  17. The Applicant’s employment with the Agency was governed by the ACT Public Service Administrative and Related Classifications Enterprise Agreement 2013-2017 ‘the EA’). The EA prescribes a one hour lunch break between 12:30 and 1:30pm. There is no provision made for fixed morning breaks for staff.[7] 

    [7] Exhibit R6, Statement of Janine Hammat dated 27 June 2018 para 11-[12]; Transcript of proceedings, 11 December 2018, p139

  18. There was no informal or unofficial convention or procedure that required an employee of the Agency to take a break at a particular time in the morning or afternoon.[8]  Employees therefore took morning breaks at irregular times.[9]

    [8] Transcript of proceedings, 11 December 2018, p78, lines 13-20.

    [9] Transcript of proceedings, 11 December 2018, p78, lines 23-37.

  19. The Applicant told the Tribunal that there was no specific time at which she was required to take her morning tea break.[10] She did not record on her flex sheet the time at which she had a morning tea break.[11] She was able to take a break during the morning at any time she wished to do so provided she did not take too many breaks and was not absent from the office for too long.[12] The Applicant would take a coffee/cigarette break at various times during the morning.[13] She was not required to advise her manager when she was leaving the office for a short period of time for a morning coffee/cigarette break.[14]

    [10] Transcript of proceedings, 10 December 2018, p24 line 19.

    [11] Transcript of proceedings, 10 December 2018, p24 line 24-29.

    [12] Transcript of proceedings, 10 December 2018, p40, lines 20-33.

    [13] Transcript of proceedings, 10 December 2018, p41, lines 3-34.

    [14] T20, p51; Transcript of proceedings, 10 December 2018, p 44, lines 19-31

    The November 2014 incident

  20. At approximately 10.30am on 25 November 2014 the Applicant left the Agency’s premises with the intention of purchasing a takeaway coffee from a nearby coffee shop called ‘Mooreish on Moore’ (‘the coffee shop’).[15]

    [15] T9; Exhibit A1 para 2; Transcript of proceedings, 10 December 2018, p 25, lines 9-11.

  21. The Applicant left her work station located on the third floor and took the lift to the ground floor. She exited the building via the terminal gate using her swipe card and proceeded to the coffee shop which is adjacent to the Agency’s premises.[16] She turned right after leaving the building and headed towards the entrance to the coffee shop which was a distance of approximately ten metres.[17]

    [16] Transcript of proceedings, 10 December 2018, p 25, lines 38-46.

    [17] Transcript of proceedings, 10 December 2018, p 26, lines 26-34.

  22. A few metres after turning right out of the building the Applicant saw an elderly man catch his foot on the guttering and fall to the ground on the corner of 11 Moore and Rudd Streets, Canberra City[18] and injure his head.[19] She went over to the gentleman to see if she could assist. Another bystander also came to his aid and he rang an ambulance.[20]  The Applicant called a nurse with whom she worked on her mobile and asked her if she was able to assist, however she was unable to do so.[21]

    [18] T7.

    [19] T11; A1, para 2; Transcript of proceedings, 10 December 2018, p 28, lines 12-14.

    [20] T22; Transcript of proceedings, 10 December 2018, p 28, lines 16-20.

    [21] Transcript of proceedings, 10 December 2018, p 28, lines 20-32.

  23. The Applicant decided to return to the office to see whether someone with appropriate knowledge could provide further assistance to the injured man.[22]  As she went back into the building she was met by Mr Phil Ghirardello, the Executive Director of Business Intelligence.[23] She told him that ‘A man has fallen outside, he’s split his head’[24] and they both went back to assist the injured man.[25]  They both knelt to assist him as he was bleeding from his head.[26] The Applicant told the Tribunal that Mr Ghirardello used his mobile phone to call a former registered nurse who worked at the Agency (Mr Andrew Bailey) to ask him what could be done to further assist the injured man.[27] She could only partially hear the conversation. When Mr Ghiradello ended the call, he said that they needed a cloth and some water. The Applicant said to him, ‘Should I get that?’ to which he replied ‘Yes’.[28]  She told the Tribunal that she believed that she ‘should do it as [she] was directed by my Director.’[29]

    [22] Transcript of proceedings, 10 December 2018, p 28, lines 38-39.

    [23] Exhibit A1, para 2; Transcript of proceedings, 10 December 2018, p 28, lines 41-43.

    [24] In this decision, italicised text is generally used to indicate direct quotation.

    [25] Transcript of proceedings, 10 December 2018, p30, 41-47.

    [26] Transcript of proceedings, 10 December 2018, p28, lines 6-7.

    [27] Transcript of proceedings, 10 December 2018, p28, lines 7-10

    [28] Transcript of proceedings, 10 December 2018, p28, lines 20-22.

    [29] Transcript of proceedings, 10 December 2018, p36, lines 25-26.

  24. The Applicant got up from her crouched position and proceeded to the coffee shop.  She was met at the entry by the owner and asked him for a cloth and glass of water.[30]  He gave her both and then she ‘turned around and walked briskly back and fell’.[31]  She described the fall as follows:

    As I took hold of the glass of water and the cloth I turned around to my left and took a few steps and tripped on the uneven pavement … I went down to one knee and stood up. Instantly I felt like I had twisted my [left] ankle but I was still able to move and take the cloth and the water to the patient.[32]

    [30] T22; Transcript of proceedings, 10 December 2018, p29, lines 26-27.

    [31] Transcript of proceedings, 10 December 2018, p29, lines 27-28.

    [32] Transcript of proceedings, 10 December 2018, p29, lines 35-41.

  25. During cross-examination, the Applicant was asked for a more detailed description of the injury she sustained to her ankle:[33]

    [33]  Transcript of proceedings, 10 December 2018, p29, lines 21-43.

    Mr Berger:      [Y]ou’d agree that you rolled your foot on the pavement?

    Applicant:Yes.

    Mr Berger:And in giving evidence earlier today you say you fell and twisted your ankle and felt pain in your ankle, is that your recollection?

    Applicant:Yes.

    Mr Berger:To be clear the ankle is the joint on the side of your foot, is that what you understand your ankle to be?

    Applicant:I understand ankle to be the - the whole cuff from ankle bone to ankle bone, around.

    Mr Berger:When you say you rolled your foot I take it means the foot went sideways?

    Applicant:Yes.

    Mr Berger:So towards the - do you remember if it was the outside part of your foot or the inside part?

    Applicant:       I don’t recall.

    Mr Berger:But in any event it was a twisting laterally to one side or the other rather than some other motion?

    Applicant:Yes.

    Mr Berger:      And the pain you felt was on the side of your foot at that time?

    Applicant:       The side of the foot and what I call the ankle area.

    Mr Berger:      Well, do you recall which side of the foot it was where you felt the pain?

    Applicant:       Not on the day.

  26. When she returned to the injured man with the cloth and water, they put the cloth over the man’s injury and gave him some sips of water through a straw and waited for the ambulance to arrive.[34] After the ambulance arrived they described the incident to the paramedics and she and Mr Ghiradello proceeded to walk back to their workplace.[35]

    [34] Transcript of proceedings, 10 December 2018, p30, lines 8-10.

    [35] Exhibit A1, Statement of the Applicant 19 March 2018; Transcript of proceedings, 10 December 2018, p30, lines 12-14.

  27. The Applicant told the Tribunal that she informally reported her injury to her supervisor, Ms Julie Searle, on the day of the incident.[36] She formally reported the injury a week later.[37]

    [36] Transcript of proceedings, 10 December 2018, p32, lines 46-47.

    [37] Transcript of proceedings, 10 December 2018, p33, line 4.

  28. She told the Tribunal that to the best of her recollection her foot was sore after the incident and she had her foot raised on a chair in the office.[38] The pain continued after the day but was not continuous.[39] She could walk normally but when she stopped it would hurt.[40]

    [38] Transcript of proceedings, 10 December 2018, p33, lines 8-11.

    [39] Transcript of proceedings, 10 December 2018, p33, lines 15-17.

    [40] Transcript of proceedings, 10 December 2018, p33, lines 32-33.

    Evidence of Phillip Ghiradello

  29. In November 2014, Mr Ghiradello was the Executive Director of the Performance Information Branch of the Agency. His duties involved overseeing the management of information for the Agency, and the collection, storage, validation and then reporting of information about the health system.[41]

    [41]  Exhibit A8, paragraph 2; Transcript of proceedings, 11 December 2018, p100, lines 10-15.

  1. He recalls that when he left the Agency’s premises for a break on the morning of the incident he saw the Applicant supporting an elderly gentleman who had fallen on the sidewalk and sustained an injury to his head.[42] He recalls phoning Mr Bailey who came down to provide assistance by giving some basic first aid to the injured man.[43] He recalls that Mr Bailey said that cloths and water were not necessary.[44] He does not recall telling the Applicant that she should get some water and a cloth from the coffee shop.[45] He did not consider it part of his duties as either an Executive Director within ACT Health or an ACT Health employee to offer assistance to the injured man. He thought it was his duty as a member of community to offer assistance.[46] He did not direct or request the Applicant to assist the elderly gentleman.[47] He considers that she was doing what would be expected of her as a human being more than as an employee of ACT Health.[48]

    [42]  Exhibit A8, paragraph 4; Transcript of proceedings, 11 December 2018, p100, lines 26-33.

    [43] Transcript of proceedings, 11 December 2018, p101, lines 9-26 and p113, lines 36-40.

    [44]  Exhibit A8, para 10; Transcript of proceedings, 11 December 2018, p102, lines 1-6.

    [45] Transcript of proceedings, 11 December 2018, p102, lines 8-9.

    [46] Exhibit A8, paragraph 13.

    [47]  Exhibit A8, paragraph 14.

    [48] Transcript of proceedings, 11 December 2018, p124, lines 37-38 and p130, lines 1-2

  2. He did not see the Applicant fall and he does not recall being made aware that she had done so until March 2015 when she reported the injury. He vaguely recalls her limping slightly following the incident, but she did not complain to him about any injury and he does not recall if he asked her about her limp.[49]

    [49]  Exhibit A8, paragraph 16.

    Evidence of Andrew Bailey

  3. In November 2014, Mr Bailey was the Senior Manager of the Agency’s Business Intelligence Unit.[50] He did not have any supervisory or oversight role in relation to the Applicant.[51] He was a registered nurse from 1999 to 2008 but gave up his registration in 2014.[52]

    [50] Transcript of proceedings, 11 December 2018, p77, lines 7-8.

    [51] Transcript of proceedings, 11 December 2018, p78, lines 10-11.

    [52] Transcript of proceedings, 11 December 2018, p77, lines 41-42.

  4. He recalls attending the incident on 25 November 2014.[53] He remembers checking the injured man’s pulse and his consciousness and vital signs. He doesn’t recall who called the ambulance nor does he have any recollection of any specific conversations that occurred at the time about what needed to be done.[54] He recalls that the Applicant went into the coffee shop to get a bottle of water but he did not watch her doing so.[55]

    [53]  Exhibit R4 paragraph 5; Transcript of proceedings, 11 December 2018, p90, line 22; p97 lines 34-35.

    [54] Transcript of proceedings, 11 December 2018, p80, lines 20-30, p81, lines 5-9.

    [55] Transcript of proceedings, 11 December 2018, p81, lines 14-16.

  5. He told the Tribunal that his actions in assisting the injured man were very much a private matter as his duties with the Agency did not involve providing assistance to any member of the public out in the street.[56]

    [56] Transcript of proceedings, 11 December 2018, p81, lines 22-27.

  6. The Applicant did not mention to him that she had been injured.  If she had done so he would have directed her to complete an incident report and to inform her direct manager.[57]

    [57]  Exhibit R4, para 27.

    Evidence of other Agency employees

  7. Mr Stephen Watt, recalls seeing the Applicant limping after a fall in late 2014.[58]  Mr Watt also recalls seeing the Applicant wearing a foot support and limping badly, however he does not state when this occurred.

    [58]  Exhibit A2, para 2.

  8. Mr Andrew Brown was advised of the Applicant’s injury in the days following the incident and ensured the appropriate workplace injury processes were carried out.  He recalls seeing the Applicant in a ‘moon boot’ and periodically asking about her injury, however he does not indicate when this occurred.[59]

    [59] Exhibit A3.

  9. Ms Julie Searle, the Applicant’s supervisor, states the Applicant reported to her suffering an ankle injury on 3 December 2014.[60] She observed ‘occasional tenderness when walking experienced by [the Applicant]’.[61] However an incident report of this injury was not completed by her until 5 February 2015.[62]

    [60] T10.

    [61] T10.

    [62] T9.

    Applicant’s Leave and Medical Treatment following the 2015 November Incident

  10. The Applicant did not take any personal or other leave in 2014 following the incident. She took personal leave from Tuesday 9 – Friday 12 December 2014, which coincided with an unrelated medical procedure.[63]  During 2015 she did not take any sick leave for her injury or for any other reason.[64] It was not until sometime in 2016 that the Applicant required any time off work in relation to her foot.[65]

    [63] Jerrabomberra Medical Centre summonsed documents; Transcript of proceedings, 10 December 2018, p51, lines 1-3.

    [64]  Transcript of proceedings, 10 December 2018, p51, lines 37-38.

    [65] Transcript of proceedings, 10 December 2018, p51, lines 34-38.

  11. The Applicant did not receive any medical treatment for her ankle until she attended her general practitioner, Dr Human, at the Sharp Street Medical Practice, Cooma on 3 February 2015.[66] The clinical note from this visit states:

    Patient with painful achilles tendons after falling on a rough footpath. Not following exercise program. Examination: obviously thickened Achilles tendon on the left, refer to physio, non-steroid anti-inflammatories for a month.

    [66] T6; Transcript of proceedings, 10 December 2018, p51, lines 4-20.

  12. In the medical certificate dated 3 February 2015,[67] Dr Human wrote:

    Patient was at work on her way to get coffee, when she ran to assist an elderly person who fell over, and injured her achilles tendon.

    [67] T6.

  13. Dr Human provided a referral to Mr Noel Priest, physiotherapist, of ACT Workplace Safety Physiotherapy:[68]

    Thank you for seeing this 47 year old lady who developed an Achilles tendonitis that is a workers compensation issue. She had an injury in November and there is no improvement on 25 non-steroid or anti-inflammatory drugs and physio. Can you please assess and treat her. 

    [68] T16, p49.

  14. The Applicant saw Mr Priest on 13 February 2015.[69]  His notes refer to acute tenderness over Achilles tendon, latent pain following palpitation and questioned whether there is the need for an ultrasound.[70] The recommended treatment for the injury was wear closed shoes, use heel raises inside her shoes, use Leukofoam padding, tape her foot,[71] icing for 15 minutes, four times a day, and use a night splint and night sock.[72]

    [69] Transcript of proceedings, 10 December 2018, p31, lines 38-44.

    [70]  Exhibit R3.

    [71] Exhibit R1; Transcript of proceedings, 10 December 2018, p53, lines 8-33.

    [72] Transcript of proceedings, 10 December 2018, p54, lines 1-6.

  15. Mr Priest wrote to Dr Human in relation to the Applicant:[73]

    Could you please discuss with Linda whether diagnostic ultrasound is indicated.

    [73] T13, p41.

  16. In her response to Mr Priest, Dr Human wrote:[74]

    Diagnostic imaging is not necessary in cases of clear cut diagnosis.

    [74] T17.

  17. In a clinical note dated 24 February 2015, Dr Human wrote:

    Patient for follow up of Achilles tendon. Left Achilles swollen and tender.

  18. The Applicant told the Tribunal that she started wearing a moon boot some two to three months after the incident after she spoke to Mr Priest.[75]  She also recalls wearing a moon boot which she borrowed from her mother when she was on leave in early January 2015 during the Christmas-New Year break.[76]  She told the Tribunal that she wore the moon boot over a four week period whenever she was walking and she would take it off to drive.[77]  After this she would wear it when she felt the need to or if her ankle got worse.[78]  She also used a night splint for approximately three months.[79]  The pain she felt was around the ankle and the Achilles.[80]

    [75] Transcript of proceedings, 10 December 2018, p35, lines 16-22.

    [76] Transcript of proceedings, 10 December 2018, p54-55.

    [77] Transcript of proceedings, 10 December 2018, p34.

    [78] Transcript of proceedings, 10 December 2018, p34, lines 36-38.

    [79] Transcript of proceedings, 10 December 2018, p35, lines 6-7.

    [80] Transcript of proceedings, 10 December 2018, p35, lines 33-34.

    Claim for workers’ compensation

  19. The Applicant notified the Agency of her injury on 5 February 2015,[81] and completed a workers’ compensation claim on 17 February 2015.[82] In her workers’ compensation claim, the Applicant stated she was claiming workers’ compensation for ‘Achilles tendon injury’ and ‘Achilles tendinitis’ in her ‘Achilles tendon left leg’. In answer to the question ‘What action, exposure of event happened to cause your injury or illness’ the Applicant wrote:[83]

    Uneven pavement. Running to assist. Rolled foot.

    EXPERT MEDICAL EVIDENCE

    [81] T9.

    [82] T7.

    [83] T7, page 24.

    Dr John Bentivoglio, Orthopaedic Surgeon

  20. Dr Bentivoglio examined the Applicant at the request of her solicitors on 26 October 2017 and provided a report dated 27 October 2017. His diagnosis of the Applicant’s condition was Achilles tendonitis/tendinopathy in her left heel.[84] He found that she developed this condition secondary to the injury she sustained to her left ankle during her fall on 25 November 2014.[85] In making this diagnosis he relied on the history provided by the Applicant, his physical examination, and a report of an ultrasound of her ankle in May 2015 which ‘showed evidence of chronic reparative Achilles tendinopathy.’[86]  He found that all the Applicant’s complaints and injuries were caused by the November 2014 incident and that her employment was a significant contributing factor to her injury.[87] 

    [84] Exhibit A9, page 4.

    [85] Exhibit A9, page 4.

    [86] Exhibit A9, page 3.

    [87] Exhibit A9, page 4.

  21. In his oral evidence at the hearing, Dr Bentivoglio explained the basis of his opinion that the Applicant’s Achilles tendonitis/tendinopathy was secondary to the injury she sustained when she fell in November 2014. He stated:

    I gathered that she had (indistinct) and some degree of hypertension of her ankle which would’ve produced some partial tearing of her Achilles tendon and hence the swelling she had in her Achilles tendon would’ve been confirmed on the ultrasound that she subsequently had on your (sic) ankle which indicated that there was chronic (indistinct) of the damage in the Achilles tendon together with some degree of inflammation in the form of tendinopathy secondary to that injury.[88]

    [88] Transcript 12 December 2018 p175, lines 20-26.

  22. During cross-examination Dr Bentivoglio was further questioned about the development of Achilles tendonitis secondary to the injury:

    Mr Berger:And you also consider that a fall leading to a frank injury to the ankle can also lead to the development of Achilles tendonitis, is that right?

    Dr Bentivoglio:        Correct.

    Mr Berger:And in the case of Ms Phillips you consider that that arose because the fall led to a partial tearing of her Achilles tendon, is that the case?

    Dr Bentivoglio:       I do believe that’s the case.

    Mr Berger:And it’s your opinion that she suffered Achilles tendonitis because of such a partial tearing rather than some other sequelae of the fall, is that your position?

    Dr Bentivoglio        That’s my position, yes.

  23. Dr Bentivoglio explained that it is unnecessary for the injury to be ‘violent’ for it to cause a partial or even complete tearing of the Achilles tendon.[89]

    [89] Transcript 12 December 2018 p175, line 43-44.

  24. During cross-examination, Dr Bentivoglio confirmed that his diagnosis was based on an assumption that when the Applicant fell her foot was placed in a dorsiflexion position that put a load on her Achilles tendon and led to a partial tearing of it.[90]

    [90] Transcript 12 December 2018 p179, lines 39-41.

  25. He was asked whether his diagnosis would be different if the Applicant had rolled or twisted her ankle to side during the fall. He told the Tribunal that this would either have caused a tearing of the lateral ligaments of the ankle or a break of the ankle.[91] He was asked whether a tearing of the lateral ligaments of the ankle would lead to the development of Achilles tendonitis to which he replied, ‘Definitely no’.[92]

    [91] Transcript 12 December 2018 p179, lines 45-47.

    [92] Transcript 12 December 2018 p180, lines 1-2.

  26. Dr Bentivoglio was asked whether, had the Applicant not torn her Achilles tendon during the fall, he would accept that her Achilles tendonitis was unrelated to the fall.  He told the Tribunal that he would not accept this because the Applicant ‘has a definite abnormality on physical examination in her Achilles tendon with some degree of swelling to the Achilles tendon.’[93] In his view there would not be an abnormality in the tendon if there were not a specific incident.[94]

    [93] Transcript 12 December 2018 p178, lines 10-11.

    [94] Transcript 12 December 2018 p178 lines 14-15.

  27. Dr Bentivoglio agreed that Achilles tendonitis can arise as a result of matters unconnected to physical activity, but said he would expect this in a person older than the Applicant.[95]  He told the Tribunal that Achilles tendonitis is most common in people in their 60s whose collagen is older and a bit more worn.[96]  He agreed there is also the possibility that people may suffer the condition for reasons unconnected to their activities because of constitutional or genetic factors.[97]

    [95] Transcript 12 December 2018 p178 lines 18-19.

    [96] Transcript 12 December 2018 p184, lines 27-31.

    [97] Transcript 12 December 2018 p177, lines 34-36, p184, lines 18-19.

    Dr Geoffrey Stubbs, Orthopaedic Surgeon

  28. Dr Stubbs saw the Applicant at the request of the Respondent’s solicitors on 14 March 2017 and provided a report dated 15 March 2017.[98] 

    [98] Exhibit R7.

  29. Dr Stubbs reported that Achilles tendinopathy is one of the many tendinopathies that beset people in middle age.[99] Age is by far in a way the most common factor in the development of the tendinopathy, and the next most common factor is type 2 diabetes.[100] Imaging studies will often show Achilles tendonitis present in people with no symptoms at all.  It tends to occur in middle-aged runners and is associated with overuse rather than single injuries.[101] Achilles tendinopathy is quite different from ruptures of the Achilles tendon – it is a degeneration of the tendon, leading to a repair response, which causes pain as a consequence of overuse activities. Ruptures of the Achilles tendon tend to occur under single heavy load episodes in tendons that have previously produced no symptoms.[102]

    [99] Exhibit R7, p3.

    [100] Transcript 12 December 2018, p176 line 45.

    [101] Exhibit R7, p3; Transcript 11 December 2018, p144 lines 30-34.

    [102] Exhibit R7, p3.

  30. Dr Stubbs noted the considerable gap between the date of injury and the Applicant’s first visit to a medical practitioner in relation to her injury on 3 February 2015.[103]  He provided the following opinion in relation to the Applicant’s condition:

    the Applicant’s presentation of the development of symptoms after a single-event fall would be unusual for Achilles tendinitis and a 3-month delay is much more likely to suggest that the evolution was quite gradual and that non-work related factors are responsible for most of the changes.[104]

    [103] Exhibit R7, p3.

    [104] Exhibit R7, p3.

  31. In his opinion, the Applicant’s Achilles tendonitis is due to the natural progression of age rather than any workplace incident.[105]

    [105] Exhibit R7, p5.

  32. During his oral evidence at the hearing, Dr Stubbs explained that Achilles tendonitis is diagnosed where there is clinical evidence of inflammation, that is, heat, possibly fluid and pain in the affected area.[106] He confirmed that the ultrasound examination showed some thickening of the left Achilles tendon, which suggests resolving Achilles tendonitis.[107]

    [106] Transcript 11 December 2018, p144 lines 7-9.

    [107] Transcript 11 December 2018, p144 lines 18-22.

  33. Dr Stubbs explained that Achilles tendinopathy can result in ruptures in the Achilles tendon as there has been a weakening of the tendon.  Ruptures may occur suddenly with a ‘forward lunge type action,’[108] for example pushing a car. The tendinopathy has no preceding symptoms but following the lunging motion there will be ‘immediate pain and disability’.[109] He opined that in the Applicant’s case, the fact that it was three months before she noted symptoms makes her condition ‘much more like [Achilles] tendonitis, gradual onset.’[110] Furthermore, he saw no evidence of a tendon rupture on the ultrasound, although it is possible there had been a small rupture, which repaired in the six months between the injury and the onset of symptoms. However, ‘even a small rupture would have been immediately painful.’[111]

    [108] Transcript 11 December 2018, p144, lines 45-47.

    [109] Transcript 11 December 2018, p145, lines 3-5.

    [110] Transcript 11 December 2018, p145, lines 8-9.

    [111] Transcript 11 December 2018, p145, lines 12-16.

  34. Dr Stubbs was asked whether the Applicant’s fall as she described it would have caused an injury to her Achilles tendon. He stated:

    No, I don’t think that would be enough to cause an injury to the Achilles tendon … because you have to have very force - forced inflexion of the foot or the tendon under load. So, people who report ruptures of the Achilles tendon, even partial ruptures, will describe (indistinct) a ball that’s squashing is one of the problem ones or running at top speed or trying to push something very heavy and the other thing is that people who suffer injury complain of pain in the calf, so it’s not the outside of the ankle, it’s the junction between the muscular part of the calf and the tendon below it.[112]

    [112] Transcript 11 December 2018, p147, lines 5-15.

  35. He was asked what injury would be indicated by pain down the side of the foot to which he replied, ‘a sprain to the lateral ligament of the ankle’.[113] He said that this would not lead in secondary way to the development of Achilles tendonitis or tendinopathy unless ‘there was a severe gait disturbance’ that is the Applicant was limping for a long period of time,[114] or using a stick or crutches.[115] 

    [113] Transcript 11 December 2018, p147, lines 17-19.

    [114] Transcript 11 December 2018, p147, lines 21-24; p155, lines 40-41.

    [115] Transcript 11 December 2018, p155, lines 45-47.

  36. During re-examination Dr Stubbs said that the likelihood that the sprain to the Applicant’s ankle led to her Achilles tendonitis was one in five, at the most.[116] He did not accept that it was likely that a rolling or twisting of the Applicant’s foot would lead to a rupture of her Achilles tendon.[117] He explained that if the injury is a typical sprain the Achilles tendon is ‘unloaded’ or ‘relaxes because the foot flexes rather than extends in a typical inversion sprain injury.’[118]

    SUBMISSIONS

    [116] Transcript 11 December 2018, p162, lines 20-26.

    [117] Transcript 11 December 2018, p162, lines 33-35.

    [118] Transcript 11 December 2018, p168, lines 42-47.

    Applicant’s contentions

  37. During the fall on 25 November 2014, the Applicant sustained an injury to her left Achilles tendon, whether described as tendonitis or tendinopathy, which amounts to a primary injury or an injury simpliciter. If it does not amount to an injury in the primary sense, the fall caused a dorsiflexion of the left foot and put a strain on the left Achilles tendon which resulted in the development of a tendonitis (an ailment) that was significantly contributed to by the Applicant’s employment. 

  38. The extending provisions in section 6(1) of the SRC Act deem the Applicant’s injury to have arisen out of or in the course of her employment. At the time of the injury, the Applicant was absent from her employment for a short period of time and engaged in a routine coffee break that was taken each morning at approximately the same time. Therefore she sustained the injury during an ‘ordinary recess’ and consequently it arose out of, or in the course of, her employment: section 6(1)(b).

  1. In the alternative, the Applicant sustained the injury while temporarily absent from her place of work and undertaking an activity associated with her employment or at the direction or request of the Commonwealth. The Applicant’s actions in going to obtain the cloth and water for the injured man was at the direction of Mr Ghiradello, an Executive Director of the Agency, and therefore was at the direction or request of the employer: section 6(1)(c).

  2. If the deeming provisions in section 6(1) are not satisfied, the Applicant meets the requirements of section 5A as she sustained an injury during an interval in an overall period of employment. When the Applicant was outside the Agency’s premises engaging in an activity which she was instructed to undertake by Mr Ghiradello, namely getting a cloth and water from the coffee shop, she sustained an injury. His position of authority over the Applicant together with his direction to her in a place closely proximate to her workplace and during a recess period amounted to an encouragement or inducement to the Applicant to undertake the activity or be in that place.

    Respondent’s contentions

  3. The evidence is not sufficient to demonstrate any necessary causal link between the incident on 25 November 2014 and the Achilles tendonitis that had developed by February 2015.  In the absence of any causal or contributory connection between these two, the Applicant’s claim cannot succeed. The Applicant did not suffer a complete or partial rupture to her Achilles tendon during the fall and her Achilles tendinopathy/tendonitis was caused by her age or constitutional factors rather than the incident on 25 November 2014.

  4. If there is a link between the 25 November 2014 incident and the Applicant’s Achilles tendinopathy/tendonitis, there was a gradual development of the condition such that it constitutes an ailment rather than an injury simpliciter.

  5. In relation to the provisions in section 6(1) of the SRC Act, the Applicant was undertaking an ad hoc random morning break at the time of her fall. Accordingly, the injury was not sustained during an ‘ordinary recess’ and does not fall within the terms of section 6(1)(b).

  6. Whereas it is accepted that the Applicant was temporarily absent from her place of work within the meaning of section 6(1)(c), the activity she was undertaking cannot be characterised as either associated with her employment or at the direction or request of her employer. The activity the Applicant was engaged in by assisting the injured man had nothing to do with her work duties or any other aspect of her employment. Her assistance to the injured man was in a private capacity and as a member of the public. The discussion between the Applicant and Mr Ghiradello could not be construed as a direction or request, and had nothing to do with the performance of her work duties.

  7. Whereas it is accepted that the Applicant was injured during an interval within an overall period of employment, the activity she was undertaking at the time of the fall was not one that her employer had induced or encouraged her to undertake. Accordingly, she cannot demonstrate that the injury occurred during the course of her employment under section 5A.

  8. If the Applicant suffered an ‘ailment’, it was not significantly contributed to by her employment. She was not engaged in or undertaking her work duties at the time the injury was sustained.

    CONSIDERATION AND REASONS

  9. The Tribunal has considered the parties’ submissions, the evidence of the witnesses at the hearing, and all the documentary material before it. The Tribunal is satisfied that the parties had an adequate opportunity to be heard by the Tribunal.

  10. Did the Applicant suffer a ‘disease’ or ‘an injury (other than a disease)’? - s5A(1)(b) SRC Act

  11. The first issue for the Tribunal’s consideration is whether the Claimed Injury for which the Applicant seeks compensation can be considered a ‘disease’ or an ‘injury other than a disease’ for the purposes of the SRC Act.

    Distinction between an ‘injury simpliciter’ and a ‘disease’

  12. The distinction between s 5A(1)(a) and s 5A(1)(b) of the SRC Act is an important one for an applicant because, for an injury that is not a disease (often referred to as an ‘injury simpliciter’ – see Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468 (‘May’), French CJ, Kiefel, Nettle and Gordon JJ at [42]), the injury must arise out of, or in the course of, the employment (s 5A(1)(b) of the SRC Act). That is, ‘… the physical or mental injury has to have a causal or temporal connection with the employee’s employment’: May per French CJ, Kiefel, Nettle and Gordon JJ at [44].

  13. An injury simpliciter is contrasted with a disease, which must be contributed to, to a significant degree, by the employee’s employment (s 5B(1) of the SRC Act). The latter requires a stronger causal connection between the employment and the ailment: Australian Postal Corporation v Burch (1998) 156 ALR 483 at 486 (‘Burch’); Prain v Comcare [2016] AATA 459 at [7]-[8].

  14. Whether a claimed condition is an injury simpliciter or a disease must be determined on a case-by-case basis. As Gleeson CJ and Kirby J observed in Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286 (‘Kennedy Cleaning’), ‘Generalities are dangerous. The duty of the decision-maker is to apply the language of the relevant legislation to the facts as found in the particular case’ at [22]. Therefore, the question of whether an applicant has a disease or injury must be determined with reference to ‘… precise evidence … concerning the nature and incidents of the physiological change…’: Kennedy Cleaning per Gleeson CJ and Kirby J at [39].

    What is an ‘injury simpliciter’?

  15. In May French CJ, Kiefel, Nettle and Gordon JJ observed that whether there is an ‘injury’ in the primary sense ‘will be determined by asking whether the employee has suffered something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state’ at [52]. Similarly, in Kennedy Cleaning, Gleeson CJ and Kirby J stated that ‘… a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state … may qualify for characterisation as an ‘injury’…’ at [39]. In Burch, the Full Court of the Federal Court of Australia found a stroke to be an injury because, in the circumstances, it was ‘…a disturbance of the normal physiological state … or an ascertainable lesion or dramatic physiological change’ at 488.

  16. French CJ, Kiefel, Nettle and Gordon JJ in May emphasised that ‘suddenness’ will not always be necessary for there to be an ‘injury (other than a disease)’. Their Honours stated that suddenness may nevertheless be ‘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’ at [47]. Their Honours cited the following passage from May v Military Rehabilitation and Compensation Commission (2015) 233 FCR 397 with approval:

    The Full Court concluded that the inquiry demanded by the statutory definition of “injury” was, instead, “whether the person has experienced a physiological change or disturbance of the normal physiological state (physical or mental) that can be said to be an alteration from the functioning of a healthy body or mind.”[119]

    [119] May at [34] citing (2015) 233 FCR 397 at 444 [205]-[207].

  17. Their Honours went on to state, ‘subjectively experienced symptoms, without an accompanying physiological or psychiatric change’ are not sufficient to be a disease or an injury at [57]. That is, merely ‘feeling unwell’, or experiencing symptoms, will not be sufficient to establish an injury. What is also needed is ‘physiological evidence, pathology or a known diagnosis to explain the symptoms’: Re May and Military Rehabilitation and Compensation Commission [2011] AATA 886 at [63] quoted in May per Gageler J at [82].

  18. An injury can include a ‘sudden physiological change resulting from a disease’: Kennedy Cleaning, per Gaudron J at [50]. Similarly, Gleeson CJ and Kirby J stated, ‘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.” Kennedy Cleaning at [36].

    Was the Claimed Injury an ‘injury simpliciter’?

  19. The Applicant argues that she suffered an ‘injury’ at work on 25 November 2014.  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.’[120] If this is so, then the condition may be treated as an injury simpliciter under s 5A(1)(b).

    [120] May at [75] per Gageler J.

  20. On the basis of the evidence before it, and for the reasons outlined in the following paragraphs, the Tribunal is not satisfied that the Applicant suffered an “injury (other than a disease)” under s 5A(1)(b) of the SRC Act.

    The injury sustained on 25 November 2014

  21. The parties agree that the Applicant suffers from Achilles tendonitis/tendinopathy. The major point of difference is the contribution of the Applicant’s fall on 25 November 2014 to the development of this condition. The Applicant claims that during the fall, her foot was put into a dorsiflexed position resulting in a partial tear to her Achilles tendon leading to immediate pain and therefore she suffered an ‘injury’ in the primary sense. The Respondent claims that the Applicant rolled or twisted her foot during the fall resulting in a sprained ankle which did not develop into Achilles tendonitis/tendinopathy. The Applicant had developed this condition by February 2015, but it is an age-related or constitutional condition unrelated to the fall.

  22. The Tribunal finds, on the basis of the medical and other evidence before it, that the Applicant did not sustain an ‘injury’ under s 5A(1)(b) of the SRC Act. There is inadequate evidence to support a finding, as required in the words of the High Court in May, that the Applicant suffered ‘something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state’.[121]

    [121] May at [75].

  23. The medical experts were in broad agreement as to the general principles around Achilles tendonitis/tendinopathy. The evidence of Dr Bentivoglio and Dr Stubbs is that the Achilles tendon can be partially or completely torn or ruptured when a person’s foot is placed in a dorsiflexed position during a forcible action, for example pushing a heavy load.[122] A tearing or rupture of the Achilles tendon, even if only partial, is immediately painful and the pain is felt not on the outside of the ankle but at the junction between the muscular part of the calf and the tendon below it.[123]

    [122] Transcript 12 December 2018 p179, lines 39-41; Transcript 11 December 2018, p144, lines 45-47

    [123] Transcript 11 December 2018, p147, lines 5-15

  24. The medical experts further agree that Achilles tendonitis/tendinopathy is a common soft tissue injury that can affect both athletes and non-athletes. It can develop due to overuse activities including sports that involve running.[124] However, a person may develop the condition for reasons unconnected to their activities because of constitutional or genetic factors including age and Type 2 diabetes.[125] There is a degeneration of the tendon, leading to a repair response, which causes pain. Achilles tendonitis/tendinopathy may be seen on imaging studies of the affected area in people who are asymptomatic.[126] 

    [124] Transcript 11 December 2018, p144 lines 30-34

    [125] Transcript 12 December 2018, p176 line 45.

    [126] Transcript 11 December 2018, p144 lines 30-34.

  25. Both medical experts agreed that if the mechanism of the Applicant’s fall involved a rolling or twisting of her ankle to the side this would have either caused a tearing of the lateral ligaments of the ankle or a break of the ankle as opposed to a tear or rupture of the Achilles tendon.[127] Dr Stubbs explained that a sprain to the lateral ligament of the ankle causes pain down the side of the foot. A sprained ankle causes the Achilles tendon to unload or relax.[128]

    [127]  Transcript 12 December 2018 p179, lines 45-47

    [128] Transcript 11 December 2018, p168, lines 42-47.

  26. The medical evidence before the Tribunal makes clear that the mechanism of the Applicant’s fall on 25 November is critical to the determination of whether she sustained an injury to her Achilles tendon as a consequence of the fall.

  27. The Applicant has consistently described her fall as a rolling or twisting of her left ankle causing her to drop to one knee. In her claim form the Applicant stated that she ‘rolled her foot’ during the fall. In her oral evidence to the Tribunal she confirmed on several occasions that the mechanism of the fall was a twisting or rolling sideways or laterally of her left foot. At no stage did she give evidence that her left foot was put into a dorsiflexed position during the fall.

  28. On the basis of the Applicant’s evidence, particularly her description of the mechanism of her fall, and the expert medical evidence in relation to Achilles tendonitis/tendinopathy. , the Tribunal finds that the Applicant rolled or twisted her foot leading her to fall and sustain a sprain or tearing of the lateral ligaments of her left ankle. The Tribunal is not satisfied on the balance of probabilities that the Applicant suffered a tear or rupture to her Achilles tendon during the fall, as this injury most frequently occurs as a consequence of hyperflexion of the foot into a dorsiflexed position that puts a load on the Achilles tendon.

  29. This finding is supported by the Applicant’s evidence that, whereas she felt pain in her left ankle following the fall, she was able to walk back to the injured man to provide him with assistance and then walk to her workplace once the ambulance had arrived.  According to the medical experts, had the Applicant sustained even a partial tear of her Achilles tendon she would have experienced immediate pain and disability. The Applicant however was able to walk normally although her ankle would hurt when she stopped.  She did not take any time off work in the days following the incident, nor did she seek any medical treatment for the claimed injury to her Achilles tendon until 3 February 2015, more than two months after the fall. This evidence gives support to the finding that the Applicant sustained a sprain to her ankle rather than a tear or rupture to her Achilles tendon during the fall.

  30. For the Applicant to have sustained an ‘injury (other than a disease)’ to her Achilles tendon the injury must fit the description of ‘a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state…’. In the Applicant’s case, as the mechanism of her injury is not consistent with that of dorsiflexion of the foot placing a load on the Achilles causing it to tear or rupture, the Tribunal cannot be satisfied that the Applicant sustained during the fall an ‘injury simpliciter’ as outlined by the High Court in May.

  31. Was the Claimed injury a ‘disease’? – s 5A(1)(a) and s 5B(1)(a) SRC Act

  32. The second issue for consideration in determining whether the Applicant suffered an ‘injury’ as defined under s 5A(1) of the SRC Act is whether she 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)(a) of the SRC Act, ‘an ailment … that was contributed to, to a significant degree, by [her] employment’.

    What is a ‘disease’?

  33. In contrast to an injury simpliciter, a disease can be described as a change in underlying pathology. In Kennedy Cleaning, Gleeson CJ and Kirby J said at [40]:

    The disease provisions remain as 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.

  34. The meaning of disease was considered by the Federal Court in Comcare v Mooi (1996) 69 FCR 439. At the time of the decision, 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 at [10]:

    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.

  35. Referring to the ordinary meanings of the word ‘disease’ as well as the meanings given in medical dictionaries, Drummond J concluded at [16]:

    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.

    Did the Applicant suffer a ‘disease’?

  36. The Applicant contends that her Achilles tendonitis/tendinopathy developed following the fall and she had not previously experienced pain or discomfort in her Achilles tendon.  Both parties agree that by February 2015 the Applicant had been diagnosed with tendonitis/tendinopathy and this was confirmed by the ultrasound of the Applicant’s Achilles tendon in May 2015. The Respondent argues that the development of the Applicant’s tendonitis/tendinopathy was unrelated to the fall and was most likely the consequence of constitutional or genetic factors.

  37. The medical experts agreed that the likelihood of a sprain to the ankle developing into Achilles tendonitis/tendinopathy is very low. Dr Stubbs said that the likelihood a sprain to the ankle would develop into Achilles tendonitis is one in five at the most.[129] Dr Bentivoglio was certain that if there had been a tearing of the lateral ligaments of the ankle as a result of the Applicant’s fall this would not have led to the development of Achilles tendonitis/tendinopathy.[130] They agreed that constitutional and genetic factors including age are the most common causes of Achilles tendonitis/tendinopathy, but Dr Bentivoglio was of the view that the Applicant was not in the age group most affected.[131]

    [129] Transcript 11 December 2018, p162, lines 20-26

    [130] Transcript 12 December 2018 p180, lines 1-2.

    [131] Transcript 12 December 2018 p178 lines 18-19.

  38. The evidence before the Tribunal is that following the fall the Applicant was observed to be limping and she first wore a moon boot during the Christmas/New Year period, and then wore it again on the recommendation of Mr Priest following her consultation with him in February 2015. The Applicant contends that the disturbance of the Applicant’s gait following the fall put some load onto the Achilles tendon and caused some aggravation or inflammation of the tendon and contributed to the development of her Achilles tendonitis/tendinopathy.

  39. Dr Stubbs accepted that it is possible for a person to develop Achilles tendinitis from a gait disturbance, however in his opinion this would require a significant disturbance of gait, for example if the person were using a stick or crutches.[132] The Respondent submits the evidence does not establish a significant prolonged disturbance of gait prior to the diagnosis of the Applicant’s Achilles tendonitis on 3 February 2015.

    [132] Transcript of proceedings 11 December 2018, p155 lines 43-47.

  1. Dr Human’s diagnosis of the Applicant’s Achilles tendonitis/tendinopathy in February 2015 was made on the assumption it developed following the Applicant’s fall in November 2014.  She was satisfied of a clear diagnosis of Achilles tendonitis/tendinopathy not requiring confirmation by an ultrasound.

  2. The Respondent accepts that if there is a link between the Applicant’s fall and the Achilles tendonitis/tendinopathy that the most likely explanation is that there was a gradual development of the condition such that it constitutes an ‘ailment’.

  3. The Tribunal finds on the basis of the evidence before it that there is some likelihood that the Applicant developed Achilles tendonitis/tendinopathy following the fall, and this satisfies the definition of an ‘ailment’ in s 4(1) of the SRC Act in that is a ‘defect’ or ‘disorder’ of ‘gradual development’.

  4. For the ‘ailment’ to be a ‘disease’ for the purposes of s 5B(1) of the SRC Act it must have been ‘contributed to, to a significant degree by the employee’s employment.’

    ‘Contributed to, to a significant degree, by the employee’s employment’

  5. The Tribunal has had regard to the evidence before it and finds, for the reasons detailed in the following paragraphs, that the Applicant did not suffer a ‘disease’, defined as an ‘ailment’ that was ‘contributed to, to a significant degree’, by the [Applicant’s] employment.

    The Applicant’s employment with the Agency

  6. The Applicant’s employment duties as a Senior Officer Grade C Information Manager with the Agency included developing and maintaining the Directorate’s metadata resources, and documenting policies, procedures, and standards for managing data definitions.[133]

    [133] T7; Exhibit A2.

  7. The Respondent contends that ‘employment’ in the context of the SRC Act is what an employee is required to do in his or her occupation and not the fact of being employed: Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626. Accordingly, ‘employment’ extends only to the actual work (or duties or service) for which the employee is engaged or is required to perform and what is reasonably incidental to that work: Charles R Davidson Co v M’Robb [1918] AC 304 at 321; Kavanagh v The Commonwealth (1960) 103 CLR 547 at 555-556 and Weston v Great Bolder Mining Ltd (1964) 112 CLR 34 at 41-42).

  8. The Applicant argues that while she was not performing her work duties when she sustained the injury to her ankle, she was directed or instructed by a superior (Mr Ghiradello) to undertake an activity outside the workplace that led to the injury. She further contends that in considering the scope of her ‘employment’ by the Agency, it is necessary to look beyond the duties she was required to perform as an employee and have regard to the selection criteria for her position, one of which includes an ‘understanding of and commitment to ACT Health Values’, which were at the time summarised as ‘care, excellence, collaboration and integrity’.[134]

    [134] Exhibit A3; see also Exhibit A7.

  9. The evidence before the Tribunal is that the Applicant’s work duties did not extend to the giving of medical first aid or assistance to any person within or outside the workplace.  The decision made by the Applicant to go to the aid of the injured man was made in her private capacity as a member of the public and was unrelated to her work duties. When the Applicant returned to the building to obtain further assistance for the injured man from one of her work colleagues, she unexpectedly met Mr Ghiradello (a colleague whom it is agreed had supervisory responsibilities with respect to the Applicant) who was himself leaving the building for a break. They then went together to the aid of the injured man. The evidence before the Tribunal is that Mr Ghiradello considered he was acting ‘as a member of the community’ rather than as ‘part of his duties with ACT Health or something that was associated with his employment’ when he was providing assistance to the injured man.[135]

    [135] Exhibit R5 [13]; Transcript of proceedings 11 December 2018, p102, see also p130 lines 1-8.

  10. Whereas there is uncertainty as to whether Mr Bailey joined them in person or by phone at the scene, it was decided that water and a cloth were necessary. The Applicant’s evidence is that she suggested that she obtain these items. Her evidence is that she said to Mr Ghiradello, ‘Should I get that?’ to which he replied ‘Yes’.[136] Mr Ghiradello does not recall making the suggestion that these items be obtained. Accepting the Applicant’s evidence, the only involvement Mr Ghirardello had in the Applicant’s actions which led her to fall and injure her ankle was responding in the affirmative to the Applicant asking him whether she should get a cloth and water.[137]

    [136] Transcript of proceedings, 10 December 2018, p28, lines 20-22.

    [137] Transcript of proceedings, 10 December 2018, p29 lines 20- 23.

  11. Even if it is accepted that Mr Ghiradello said something to the Applicant that was or could be construed as a direction or request, it was one that had no connection with the performance of the duties they might be expected to perform as employees of the Agency. It therefore does not constitute a direction or request of the Applicant’s employer: Foley and Comcare [2012] AATA 458 at [15].

  12. There is evidence before the Tribunal that the selection criteria for the Applicant’s position, included an ‘understanding of and commitment to ACT Health Values’, which were at the time summarised as ‘care, excellence, collaboration and integrity’. In a Statement by Kathy Leigh, Head of the ACT Public Service, dated 6 November 2018, tendered by the Applicant, Ms Leigh acknowledges an employee who, while off-duty, rendered assistance to a person who sustained an injury, and recognises and congratulates the employee for demonstrating integrity and respect which are core values of the ACT Public Service.

  13. Whilst integrity and respect are among the core values that the Applicant was expected to demonstrate in the course of her employment duties with the Agency, it cannot be said that when she demonstrated these values outside of the workplace in assisting the injured man that her activities were related to or within the scope of her ‘employment’ with the Agency or the ACT Public Service. 

  14. The Tribunal therefore finds that the activity that led to the Applicant’s fall and her sustaining an injury to her ankle that developed into Achilles tendonitis/tendinopathy (the ‘ailment’) was unrelated to the Applicant’s employment with the Agency. 

  15. As the Tribunal has found there is no relationship between the Applicant’s ‘ailment’ and her ‘employment’ there is no need for it to consider the question of the contribution of the employment to the ailment.

  16. The Tribunal finds that the Applicant’s ailment does not satisfy the definition of a ‘disease’ under section 5B(1) of the SRC Act as it is not satisfied on the balance of probabilities it is an ‘ailment’ that was ‘contributed to, to a significant degree, by the [Applicant’s] employment.’

  17. As the Tribunal is not satisfied that the Claimed Injury is a ‘disease’, it is not an ‘injury’ as defined by s 5A(1)(a) of the SRC Act read with s 5B(1)(a) of the SRC Act.

    CONCLUSION

  18. The Tribunal finds, for the reasons outlined above, that the Applicant did not suffer an ‘injury’ within the meaning of s 14 of the SRC Act. The Respondent is therefore not liable to pay compensation to the Applicant for the Claimed Injury.

    DECISION

  19. The Reviewable Decision is affirmed.

…………….………………………

Associate

Dated:  20 May 2019

I certify that the preceding 123 (one hundred and twenty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk

Date(s) of hearing:

10 December 2018 - 12 December 2019; 4 February 2019
Date final submissions received: 4 February 2019
Counsel for the Applicant: Mr Karl Pattenden
Solicitors for the Applicant: Mr Walter Hawkins, Maurice Blackburn Lawyers
Counsel for the Respondent:

Mr Andrew Berger, Australian Government Solicitor
Solicitors for the Respondent: Ms Madeleine Harrington, McInnes Wilson Lawyers

Key Legal Topics

Areas of Law

  • Administrative Law

  • Employment Law

Legal Concepts

  • Causation

  • Judicial Review

  • Procedural Fairness

  • Statutory Construction

  • Remedies

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Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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Military Rehabilitation and Compensation Commission v May [2016] HCA 19
Military Rehabilitation and Compensation Commission v May [2016] HCA 19
Prain v Comcare [2016] AATA 459