QXQH and Comcare (Compensation) - [2021] AATA 3036

QXQH and Comcare (Compensation) [2021] AATA 3036 (25 August 2021)
Division:GENERAL DIVISION
File Number:2020/2652
Re:QXQH
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:25 August 2021
Place:Brisbane

The Tribunal affirms the decision under review.
................[SGD]...............................
Member D Mitchell
CATCHWORD
COMPENSATION – present entitlement – right shoulder condition – whether an injury or disease – whether a physiological change occurred from the incident – whether liability exists in respect of medical treatment, incapacity benefits and household and attendant care – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Comcare v Stefaniak [2020] FCA 560
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468; [2016] HCA 19
Pearson and Prosegur Australia Pty Ltd (Compensation) [2021] AATA 312
Prain v Comcare [2017] FCAFC 143
Telstra Corporation Limited v Hannaford [2006] FCAFC 87
Williamson and Comcare (Compensation) [2019] AATA 4774
REASONS FOR DECISION
Member D Mitchell
25 August 2021
INTRODUCTION

QXQH (the Applicant) is seeking review of a decision of the Respondent dated 29 April 2020.[1]
[1] Exhibit 1, T Documents, T113, pages 379-394, Reviewable Decision.
The reviewable decision affirmed a determination dated 10 February 2020[2] that decided that the Applicant had no present entitlement to compensation in respect of medical treatment, incapacity benefits and household and attendant care under sections 16, 19 and 29 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) in respect of the Applicant’s previously accepted condition of ‘partial tear rotator cuff (right)’ with a date of injury of 13 October 2015 (accepted condition).[3]
[2] Exhibit 1, T Documents, T106, pages 340-353, Determination: no present entitlement for partial tear of rotator cuff (right).
[3] Exhibit 1, T Documents, T113, pages 379-394, Reviewable Decision.
BACKGROUND AND CLAIMS HISTORY
The Applicant was employed as an Executive Level 2 Director at the Department of Human Services (now known as Services Australia).[4]
[4] Exhibit 3, Joint Hearing Bundle, R8, Respondent’s Amended Statement of Issues, Facts and Contentions, page 39, paragraph 3.1.
On 19 October 2015, the Applicant reported to his employer that he sustained a right shoulder strain on 13 October 2015 while departing work. The Applicant described the mechanism of how he sustained the injury as “When opening a fire door (Fire Stair 10 – door on the left hand side) – The door stopped suddenly and I felt a sharp pain/tear in my right shoulder.”[5]
[5] Exhibit 1, T Documents, T4, pages 12-13, Incident Report.
On 29 October 2015, the Applicant submitted a claim for workers’ compensation[6] for “Restricted use of Right Shoulder – likely impingement syndrome” with a date of injury as 13 October 2015. The Applicant provided that he first sought medical treatment on                26 October 2015.[7]
[6]     Exhibit 1, T Documents, T6, pages 16-32, Claim for Workers’ Compensation.
[7]     Exhibit 1, T Documents, T6, page 19, Claim for Workers’ Compensation.
On the claim for compensation form, the Applicant provided that he had previously had a similar injury for which he had surgery on his right shoulder on 18 December 2006, performed by Dr Robert Creer.[8]
[8] Exhibit 1, T Documents, T6, page 20, Claim for Workers’ Compensation.
On 20 November 2015, liability was accepted for ‘partial tear rotator cuff (right)’ with a date of injury of 13 October 2015.[9]
[9] Exhibit 1, T Documents, T11, page 40, Determination accepting claim for partial tear of rotator cuff (right).
The Applicant accessed various treatments, including physiotherapy, steroid injections, imaging, investigations, pain management, reviews with multiple specialists and his general practitioner, as well as incapacity benefits and household services.[10]
[10] Exhibit 3, Joint Hearing Bundle, R8, Respondent’s Amended Statement of Issues, Facts and Contentions, page 40, paragraph 3.4.
On 7 June 2016, the Applicant underwent a right shoulder arthroscopy and rotator cuff repair under Dr Maurizio Damiani, orthopaedic surgeon.[11] The principal findings at operation were:[12]
[11] Exhibit 1, T Documents, T26 pages 77-82, Operation Report of Dr Damiani.
[12] As summarised by Dr Burke at Exhibit 1, T Documents, T85, page 253, Report of Dr Burke.
·Evidence of progressive osteoarthritis in the glenohumeral joint.
·Severe degeneration of the posterior labrum and uncovering of the bone on the back of the glenoid.
·Uncovering of bone on the humerus posteriorly and anterosuperiorly.
·Long head of biceps was stable in the groove and had no significant tendinosis.
·No significant labral tear.
·The previous labral tear was intact but degenerative.
·Severe tendinosis involving the supraspinatus and infraspinatus which was debrided.
·Bony ossicles within the rotator cuff.
·The quality of the tendon was poor.
On 20 July 2016, Dr Damiani reported that the Applicant advised that four weeks prior he woke one night startled and jerked his right shoulder which was still in a sling and that he had since had constant pain in the shoulder, mainly anterior. He reported he could not tell if the Applicant had pulled anything out but that his external rotation internal rotation power was intact as was his deltoid power. Dr Damiani recommended that a new MRI scan be undertaken to make sure the Applicant had not pulled out or disrupted one of the anchors.[13]
[13] Exhibit 1, T Documents, T31, page 95, Report of Dr Damiani.
On 25 July 2016, Dr Damiani reported that the Applicant had an MRI which showed that the tear that was repaired was mostly intact and at that stage he was not worried and wanted him to start some hydrotherapy and physiotherapy and be reviewed in three months time.[14]
[14] Exhibit 1, T Documents, T33, page 98, Report of Dr Damiani.
The Applicant continued to engage with Dr Damiani who on 6 February 2017 recommended he undergo further surgery to repair the tendon and do a biceps tenodesis.[15] In a response to Dr Damiani’s request for approval to fund the surgery further information was sought and provided.[16] On 22 February 2017, Dr Damiani provided that the surgery was required as a result of a workplace injury and that:[17]
…. Whist [sic] the opening of the fire door did not directly result in the requirement for biceps tenodesis surgery. It seems that he had a complication after the surgery that was covered by this insurance. As mentioned, he had a severe jolt in a few weeks after surgery and there is a likelihood that this was what cause the further injury.
… as already mentioned the causative factor is the complication that have not happened in the few weeks after the surgery that was already covered by his injury and insurance.
[15]    Exhibit 1, T Documents, T47, page 130, Report of Dr Damiani.
[16]    Exhibit 1, T Documents, T49, pages 133-134; T50, page 135 and T51, page 136, Reports of Dr Damiani.
[17]    Exhibit 1, T Documents, T51, page 136, Report of Dr Damiani.
On 16 March 2017, the Applicant underwent a right shoulder arthroscopy release and biceps tenodesis under Dr Damiani.[18] The principal findings at operation were:[19]
·     Glenohumeral joint evidence of significant chondromalacia on the glenoid especially anteriorly and posteroinferiorly.
·     Chondrocalcinosis and calcification through the cartilage.
·     An intact labral repair.
[18]    Exhibit 1, T Documents, T54, page 159, Operation Report of Dr Damiani.
[19]    As summarised by Dr Burke at Exhibit 1, T Documents, T85, page 253, Report of Dr Burke.
In a report dated 15 June 2017, Dr Damiani provided that the Applicant had made significant improvements however, still had some end-range stiffness and with this some mild pain at end range. He said he reassured the Applicant he will continue to make improvements.[20]
[20] Exhibit 1, T Documents, T66, page 191, Report of Dr Damiani.
The Applicant was seen by Dr Sindy Vrancic, orthopaedic surgeon for a second opinion.[21] In a report dated 30 November 2017, Dr Vrancic formed the impression that the Applicant was suffering with post-surgical weakness and discomfort of the right shoulder. Dr Vrancic opined that there was no surgically correctable cause for the Applicant’s ongoing issues.[22]
[21] Exhibit 1, T Documents, T82, pages 232-233, Report of Dr Vrancic.
[22] Exhibit 1, T Documents, T82, page 233, Report of Dr Vrancic.
On 15 February 2018, after having examined the Applicant on 9 February 2018, Dr Nicholas Burke, consultant occupational physician reported:[23]
It is probable that there has been an aggravation of the degenerative change in [the Applicant’s] right shoulder. I think it is probable that the underlying degenerative change is the principal cause for his current presentation. However, as noted above, his major discomfort is in the area of the biceps tendon which was the subject of the most recent operation and, hence, it would appear that there is some link to the most recent operation and the injury of 13 October 2015.
…..
I believe there is likely to be a relatively small contribution from his employment to the ongoing aggravation in his right shoulder. However, the principle cause for his ongoing symptoms and disability remains the underlying degenerative changes.
….
The causation is likely to relate to the pre-existing injury to his right shoulder and surgery in 2004. This appeared to be reasonable substantial surgery with a labral repair. He had evidence of glenohumeral arthritis as well as acromioclavicular arthritis and degenerative change in the rotator cuff, and these are likely to be pre-existing although asymptomatic in the lead-up to the event of 13 October 2015.
With the injury of 13 October 2015 he developed some degree of biceps tendinopathy which required a tenodesis and this appears a contributor to his ongoing symptoms and disability.
[23] Exhibit 1, T Documents, T85, pages 251-259, Report of Dr Burke.
In a supplementary report, dated 30 July 2018,[24] Dr Burke provided clarification of his statement that it was probable that there had been an aggravation of the degenerative change in the Applicant’s right shoulder. In doing so, he provided that his opinion was that it would be reasonable to apportion 50% to pre-existing degenerative changes and 50% to the incident.[25] Dr Burke also opined that he considered it unlikely that any of the Applicant’s current symptoms would at that time relate to the specific surgery, which was performed on 16 March 2017.[26]
[24]    Exhibit 1, T Documents, T90, pages 278-279, Supplementary Report of Dr Burke.
[25]    Exhibit 1, T Documents, T90, page 279, Supplementary Report of Dr Burke.
[26]    Exhibit 1, T Documents, T90, page 279, Supplementary Report of Dr Burke.
The Applicant continued to experience right shoulder pain and was referred to Dr James Tunggal, orthopaedic surgeon. In a report dated 20 June 2019,[27] Dr Tunggal reported that his initial impression was that a significant proportion of the Applicant’s pain may be due to his biceps tenodesis and that this had been over tensioned and to a lesser extent his AC joint arthritis. Dr Tunggal arranged for the Applicant to have directed injections into multiple regions, being, the AC joint, the site of his biceps tenodesis and the glenohumeral joint all two weeks apart and recommended that he recommence formal physiotherapy.[28]
[27] Exhibit 1, T Documents, T94, pages 287-289, Report of Dr Tunggal.
[28] Exhibit 1, T Documents, T94, page 287, Report of Dr Tunggal.
On 16 October 2019, at the request of the Respondent, the Applicant was assessed by      Dr Phil Allen, orthopaedic surgeon.[29] In a report dated 24 October 2019, Dr Allen diagnosed that the Applicant presently suffered from degenerative right shoulder disease and provided:[30]
[29]    Exhibit 1, T Documents, T99, pages 303-309, Report of Dr Allen.
[30]    Exhibit 1, T Documents, T99, pages 307-308, Report of Dr Allen.
The degenerative change has been progressive in the right shoulder over the years and had predated his injury in 2015.
In 2004 he had already had surgery on his right shoulder for a torn rotator cuff.
The history, medical records and radiographic reports support the diagnosis of progressive degenerative right shoulder disease.
….
The incident in 2015 resulted in an aggravation of his underlying degenerative changes in his right shoulder and subsequent treatment over the years was directed to that.
The effects of that incident are considered to have settled and the ongoing symptoms at this point relate to his underlying degenerative disease.
…..
[The Applicant’s] current symptomatology as a consequence of his degenerative changes in the shoulder which have progressed in line with the natural history of this condition. The exacerbation in 2015 is considered to have long passed and ongoing symptoms relate to the progressive degenerative change in the shoulder.
[The Applicant’s] employment no longer continues to be a significant contributing factor in his current condition.
On 16 December 2019, the Respondent advised the Applicant of their intention to determine that there was no present liability in relation to the accepted condition and provided him with the opportunity to provide a response.[31] The Applicant provided a response dated 23 January 2020.[32]
[31] Exhibit 1, T Documents, T100, pages 310-318, Intent to cease entitlement.
[32] Exhibit 1, T Documents, T104, pages 328-337, Submissions by the Applicant.
The Applicant was further reviewed by Dr Tunggal on 9 January 2020, who provided a report of the same date.[33] Dr Tunggal provided:[34]
On my assessment, I remain of the opinion that it seems his main area of concern continues to be in the region of his bicipital groove and related to his biceps tenodesis. I suspect this may have been somewhat positioned too tightly. This would certainly fit with his current set of symptoms. I note also it was an intertubercular groove tenodesis and perhaps he may be experiencing an element of chronic intertubercular groove pain as a result as well.
……
I remain of the view that it would be worthwhile him considering the prospects of releasing his biceps to try and account for this symptom which I suspect has a reasonably good prospect of being successful….
[33] Exhibit 1, T Documents, T101, pages 319-320, Report of Dr Tunggal.
[34] Exhibit 1, T Documents, T101, page 319, Report of Dr Tunggal.
On 10 February 2020, the Respondent determined that the Applicant had no present entitlement to compensation in respect of medical treatment, incapacity benefits and household and attendant care under sections 16, 19 and 29 of the SRC Act in relation to the accepted condition.[35] In relying on the opinion of Dr Allen, the Respondent determined that the Applicant did not presently suffer from a right shoulder condition that was work-related.[36]
[35] Exhibit 1, T Documents, T106, pages 340-353, Determination: no present entitlement for partial tear of rotator cuff (right).
[36] Exhibit 1, T Documents, T106, page 352-353, Determination: no present entitlement for partial tear of rotator cuff (right).
On 12 February 2020, Dr Tara Lewington, general practitioner provided a letter in support of the Applicant’s claim for compensation, providing:[37]
With regard to his right shoulder I am disappointed that his claim has not been accepted. He has a long history of shoulder pain and multiple surgeries that are summarised by his various specialists. He is understanding that some of his pain is due to general degeneration change. He does seem to have possible biceps irritation though and states that this pain has only been present since the surgery to tenodese his biceps tenon. He had some relief from HCLA injection to this site.
I do not understand why his claim for biceps irritation and pain has not been approved as this appears to be a probable consequence of his earlier surgery and his surgeon Dr Damiani has written a letter stating this as well.
[37] Exhibit 1, T Documents, T108, page 363, Report of Dr Lewington.
On 9 March 2020, the Applicant requested a reconsideration of the Respondent’s determination and provided further evidence for consideration.[38]
[38] Exhibit 1, T Documents, T109, 364-369, Reconsideration Request.
On 29 April 2020, the Respondent affirmed the determination dated 10 February 2020.[39]
[39] Exhibit 1, T Documents, T113, pages 379-394, Reviewable Decision.
On 30 April 2020, the Applicant sought review of the reconsideration decision by way of application to this Tribunal.[40]
[40] Exhibit 1, T Documents, T1, pages 1-6, Application for Review of Decision.
On 14 September 2020, at the request of the Respondent, the Applicant was assessed by Professor Peter Steadman, orthopaedic surgeon.[41] In a report dated 19 September 2020, Professor Steadman diagnosed the Applicant’s current condition as ‘glenohumeral arthritis of at least a grade 2 with chondrocalcinosis’ with possible ‘biceps overtightening and tenosynovitis’.[42] Professor Steadman opined that the Applicant’s current condition arose in 2005 when the Applicant had his original operation and that it is a degeneration and is part of a long clinical journey of gradual decline.[43] Professor Steadman opined that the Applicant’s reported 2015 event was superseded by the consequences of the 2005 dislocation and that the effects of the 2015 event ceased within 4 to 6 weeks of the event.[44]
[41]    Exhibit 3, Joint Hearing Bundle, R1, pages 3-10, Briefing letter to Professor Steadman.
[42]    Exhibit 3, Joint Hearing Bundle, R2, pages 11-26, Report of Professor Steadman.
[43]    Exhibit 3, Joint Hearing Bundle, R2, page 22, Report of Professor Steadman.
[44]    Exhibit 3, Joint Hearing Bundle, R2, page 23, Report of Professor Steadman.
In a supplementary report dated 19 November 2020, Professor Steadman provided that: [45]
·His reference to a 2005 right shoulder injury was implied “medically on a forensic basis from the MRI and the 2006 surgery findings that [the Applicant] likely suffered a prior dislocation with a torn rotator cuff.”[46]
·He made that assertion “because of the labral pathology that was identified in           Dr Creer’s surgery and it is well recognized that the consequences of dislocation can be a rotator cuff tear depending on the age of the individual suffering the injury.”[47]
·The basis for his opinion that the Applicant’s work-related condition ceased within four to six weeks of the October 2015 incident is evidence based literature for recovery of a musculoskeletal sprain. That in this case he accepts that the Applicant suffers from osteoarthritis of the shoulder joint and that the recovery following a sprain is articulated as being four to six weeks.[48]
·In relation to what the surgeries conducted on 7 June 2016 and 15 March 2017 were intended to treat that:[49]
They were intended to treat his pain. In my opinion in hindsight the operations proposed appear to have been of no clinical benefit. For example, the operations performed were not to treat the pre-existing condition per se. The operations were proposed to treat the identified pathological findings in the soft tissues around the shoulder that were thought to be a consequence of the door event. Nonetheless, clinical history and outcome is now indicating that these operations were of no benefit likely because of the underlying glenohumeral shoulder joint arthritis. It is the glenohumeral arthritis that is the persistent cause of the pain in my clinical opinion.
[45]    Exhibit 3, Joint Hearing Bundle, R4, page 30, Supplementary report of Professor Steadman.
[46]    Exhibit 3, Joint Hearing Bundle, R4, page 30, Supplementary report of Professor Steadman.
[47]    Exhibit 3, Joint Hearing Bundle, R4, page 30, Supplementary report of Professor Steadman.
[48]    Exhibit 3, Joint Hearing Bundle, R4, page 31, Supplementary report of Professor Steadman.
[49]    Exhibit 3, Joint Hearing Bundle, R4, page 31, Supplementary report of Professor Steadman.

In a Supplementary Report dated 23 June 2021,[50] Dr Allen provided that his reference in his earlier report to aggravation should have been reflected as an exacerbation. Dr Allen confirmed his opinion that the incident in 2015 resulted in an exacerbation of the Applicant’s underlying degenerative changes in the right shoulder and that there was no objective evidence of any significant material change to the shoulder which can be attributed to the incident in 2015 of a substantive nature that can be defined as an aggravation.[51]
[50] Exhibit 3, Joint Hearing Bundle, R7, pages 37-38, Supplementary report of Dr Allen.
[51] Exhibit 3, Joint Hearing Bundle, R7, page 38, Supplementary report of Dr Allen.
Dr Allen confirmed his view that the Applicant’s current symptomatology was a consequence of his degenerative changes in the shoulder and could no longer be attributed to the exacerbation in 2015, which has passed.[52]
[52] Exhibit 3, Joint Hearing Bundle, R7, page 38, Supplementary report of Dr Allen.
A Hearing was held by Microsoft Teams on 6 July 2021. The Applicant was self-represented and gave evidence under affirmation. The Respondent was represented by Ms Kate Slack of Counsel.
ISSUES
The primary issue before the Tribunal is whether the Applicant is entitled to compensation for medical treatment, incapacity benefits, and household and attendant care under sections 16, 19 and 29 of the SRC Act in relation to the accepted injury.
In considering this issue, the Tribunal must consider:
1.What ailment or injury did the Applicant suffer during the incident on 13 October 2015?
2.If it is best classified as an injury, has the Applicant suffered the effects of it on and from 23 January 2020?
3.If it is best classified as an ailment, had the Applicant’s employment continued to contribute to it, to a significant degree since 23 January 2020 to the present date?
4.If so, is the Respondent liable to pay compensation in respect of it for medical treatment, incapacity for work and household and attendant care under sections 16, 19 and 29 of the SRC Act?
THE LAW
Section 14 of the SRC Act provides that the Respondent is liable to pay compensation in accordance with the SRC Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work or impairment.
An injury is defined in section 5A of the SRC Act to include a disease suffered by an employee or an injury other than a disease or an aggravation thereof. Specifically, section 5A defines “injury” to mean:
(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.
Section 5B of the SRC Act defines “disease” to mean:
(1)In this Act:
“disease” means:
(a)   an ailment suffered by an employee; or
(b)   an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or 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.
(3)    In this Act:
“significant degree” means a degree that is substantially more than material.
Section 4 of the SRC Act defines ailment as ‘any physical or mental ailment, disorder, effect or morbid condition (whether of sudden onset or gradual development)’.
Once liability for a condition is accepted under section 14 of the SRC Act, payment of compensation in relation to medical treatment, incapacity for work and household and attendant care may be available to the injured person.
Section 16 of the SRC Act provides for compensation in respect of the cost of medical treatment obtained in relation to an injury suffered by the employee (being treatment that it was reasonable for the employee to obtain in the circumstances).
Section 19 of the SRC Act provides for compensation in the respect of incapacity payments for employees who are incapacitated for work as a result of an injury.
Section 29 of the SRC Act provides for compensation for household services and attendance care services obtained by an employee as a result of an injury (other than a catastrophic injury).
Section 4(3) of the SRC Act provides that any physical or mental injury or ailment suffered by an employee as a result of medical treatment of an injury shall be taken to be an injury if, but only if compensation is payable under the SRC Act in respect of the injury for which the medical treatment was obtained and it was reasonable for the employee to have obtained that medical treatment in the circumstances.
EVIDENCE AT HEARING
Evidence of the Applicant
The Applicant did not file any additional evidence throughout the Tribunal process, rather he relied upon submissions he had made dated 23 January 2020[53] and 9 March 2020[54] in response to the Respondent’s notice of intention to cease entitlements and in support of his request for a reconsideration of the Respondent’s determination. At Hearing the Applicant’s evidence and contentions were consistent with these written documents.
[53] Exhibit 1, T Documents, T104, pages 328-337, Submissions by Applicant.
[54] Exhibit 1, T Documents, T109, pages 364-369, Reconsideration Request.
At Hearing the Applicant told the Tribunal that:[55]
[55] Transcript, pages 6-10.
·The injury occurred on 13 October 2015 and since that date the Respondent accepted his claim and approved surgeries.
·He had regularly kept in contact providing updates on his condition following the operation on 7 June 2016.
·He contends that the injury occurred as a result of a faulty door closer which was malfunctioning on the door. He had sought legal advice regarding the possibility of compensation.
·Regardless of whether or not this is an injury or a disease, the fact is that the door was the cause of his injury. Up until that point he had “absolutely zero problems with that shoulder. None whatsoever.” (Reference being to the Applicant’s right shoulder).
·Since 13 October 2015 he had had two significant operations, at least six MRI scans and different x-rays, approximately five sessions of guided cortisone injections, attended countless physiotherapy and pool sessions, been prescribed Panadeine Forte to assist with the ongoing pain and attended three or four independent specialist appointments.
·He accepts the proposition that the degenerative changes in his right shoulder are in part due to his age, genetics, et cetera, however considers it is also highly likely that a secondary cause of degeneration can be attributed to the incident in 2015.
·He considers it was unreasonable to cease ongoing entitlements, noting there were underlying medical issues which remain partially treated to date.
·“Whilst my current and ongoing pain may not be considered to be directly related to the incident in October 2015, I’ve included medical evidence which indicate the ongoing problems which my shoulder and bicep are likely to be attributed to complications linked to both surgeries, as performed by Dr Damiani.”
·Dr Tunggal stated during his appointment that the ongoing pain in his bicep are inconsistent with any degenerative disease, and more likely to be overtightening of the biceps.
·“On the balance of probabilities, the current situation associated with my shoulder is likely to be attributed to the workplace incident, and subsequent operations and treatments which Comcare accepted liability for, workplace – and approved the subsequent operations and treatments. It would be unreasonable – and I reiterate again, it was unreasonable to cease entitlements, knowing that there were underlying issues. I’ll just make a statement here – where a compensable injury gives rise to a subsequent injury that satisfies the definition of an injury in section 4 of the Act, that subsequent injury is to be treated as a separate injury, with all entitlement of a separate injury. And I’m going to argue that this injury to my bicep is actually a sequela of – a consequence of the operation and the incident that occurred following waking up at night and – after the second operation.”
·Dr Damiani in his report of 22 February 2017 provided that the surgery was a result of the workplace injury and the reason was that: “Whilst the opening of the door did not result in the requirements for a bicep tenodesis surgery, it seems that a complication of that surgery, that was covered by his insurance – as mentioned, he had a severe jolt in the weeks after the surgery – and there is a likelihood that this has caused further injury.” However, this was not considered or mentioned in any of the medical correspondence by Dr Steadman.
·Dr Burke’s report of 30 July 2018 confirmed that there appeared to be some relationship between the previous incident and subsequent operation. He said: “It would be reasonable to apportion 50 per cent to pre-existing degenerative changes, and 50 per cent to the workplace incident.”
·As a qualified risk assessor, he considers that it is highly likely that on the balance of probabilities that the workplace incident in October 2015 was, in fact, inherently linked to the complications associated with the surgeries performed by Dr Damiani.
·In his view Dr Steadman, had not provided definitive medical evidence to support or deny his injuries relationship to the original incident.
·When asked why he had not sought a further opinion from Dr Damiani, said that he had moved from Canberra to the Sunshine Coast between November 2017 and December 2020, so he went and saw Dr Tunggal. Dr Tunggal then sent him for three separate cortisone injections in different areas to try and determine and rule out the more likely areas of ongoing pain. The result was that his right bicep tendon is more than likely to have been overtightened during the operation, or during Dr Damiani’s second operation in March 2017. He reported ongoing and consistent pain from the date of the second operation right through to the very end, and up until today.
·He accepts that he did have surgery on his right shoulder in December 2006. In relation to that injury, he does not know what caused it.
Evidence of Professor Steadman
In addition to providing the reports outlined above, Professor Steadman appeared at Hearing by telephone and gave evidence under affirmation. Professor Steadman:[56]
[56]    Transcript, pages 11-24.
·Confirmed his name, business address and qualifications.
·Confirmed he examined the Applicant on 14 September 2020 and provided a report dated 19 September 2020, as well as a supplementary report dated  19 November 2020.
·Confirmed that other than for a typographical error there were no other changes he wanted to make to his reports.
·Said that a musculoskeletal sprain does not cause a physiological change as it is a condition that gets better because of the short-term sprain of the soft tissues.
·Confirmed that he had compared the report of Dr Creer in relation to the 2006 surgery to that from the later surgeries of the Applicant’s right shoulder.
·Said there was not a lot of abnormality in the Applicant’s right shoulder according to the 2006 surgery report other than the reason that Dr Creer was doing the surgery, being to operate on the labrum and rotator cuff.
·Said that in assessing the Applicant as suffering from degenerative changes in the right shoulder when he examined him, that he relied on the 2016 report of Dr Damiani where he confirmed that there was progressive degeneration in the glenohumeral joint, which he calls arthritis. Dr Damiani also notes the degenerative labrum and records that the long head of biceps was stable with no significant tendinosis and no superior labral tear, which becomes the subject of the operative report of 16 March 2017. Dr Damiani noted severe tendinosis of the supra infraspinatus interval in the rotator cuff and reportedly found some ossicles and notes that the tendons were quite poor which reflects upon the issue of the degenerating joint.
·Said that means that Dr Damiani describes the changes and he is the one with the telescope in the shoulder and is looking at the camera and can see what is going on inside the shoulder.
·Said that it was his view that what happened when the Applicant opened the door in October 2015 would not have had any impact on the level of degeneration.
·Said that in relation to his views in relation to the pain in the Applicant’s right bicep and its relationship to the degenerative changes, it is important to note that findings of the 2017 operation are not necessarily reflective of the 2016 operation. There was a different set of changes and conditions that are being treated in 2017 to 2016. Based on the findings in 2016, he would say that there was progressive failure of the soft tissue in the Applicant’s shoulder to do with the labrum and the labral attachment and also the biceps. The shoulder soft tissues are deteriorating. That is why the Applicant’s shoulder is still sore and why he had the operation in 2017. The irony of it is that the 2017 operation is for conditions that were not really identified in 2016, which he found a bit odd, however he accepts Dr Damiani’s operative report in that regard at face value.
·When asked whether those progressive failures of soft tissue would have been caused by some sort of jolt or stretching of the shoulder during sleep or a nightmare two weeks after the operation while wearing a sling, said that it was unlikely that a jolt or a spasm two weeks after the operation while wearing a sling, based on what Dr Damiani’s report found, would pull the biceps tendon off.
·When asked whether he thought it was a possibility that the Applicant’s bicep tendon could have been over-tightened during the operation with Dr Damiani and if that kind of things happens frequently, said that clinically in his experience the overtightening of the biceps by one or two millimetres would not cause chronic pain.
·Said he thinks the Applicant has a painful shoulder not because the bicep has been overtightened but for other reasons.
·When asked to expand on why he says that a musculoskeletal sprain would not cause a physiological change, said that in medicine they divide injuries up into different types of injuries, a sprain might be a sort of muscle sprain; an exacerbation might be where there is a pre-existing condition that becomes painful but settles down sort of quickly, and an aggravation can either be something that gets better as well, depending on which legislature you are working in, or it can be a permanent aggravation, meaning that you had a pre-existing condition and the condition continues to be painful.
·
Said when you look at the Applicant’s notes provided by his general practitioner

Dr Christopher Ayres on 26 October 2016 he goes through the fact that the Applicant had no neck symptoms, range of motion was full in all directions except lateral to the left side, shoulder flexion at 120 degrees, internal and external rotation was painful – it is clear that the Applicant had a painful shoulder when he saw him.
·Said his position would be that the changes to the Applicant’s shoulder that were subsequently assessed, would not occur as a consequence of arthritis, even as the operation was carried out eight months later. The changes that are inside the joint are likely reflective of the 2006 operation and the mechanism of injury of what happened to result in that operation.
·Said his view is that there was likely some form of dislocation in the lead up to the 2006 operation. People who have a dislocation of their shoulder go on to get arthritis in their shoulder, not uniformly, but if they dislocate it a lot, they go on to get arthritis relatively quickly.
·Said in this instance we are talking about a period of a decade.
·Said that the second set of conditions that Dr Damiani treated were not identified in the original 2016 surgery, so something deteriorated between 2016 and 2017. Tissues progressively, over a long period of time, as part of degeneration get softer.
·Said what it really means is that the tissues inside the joint are deteriorating and as they get softer it leads to progressive failure.
·Said he diagnosed a sprain on the basis that the Applicant had a sore shoulder when he went to the GP, but the subsequent condition really superseded it. The subsequent condition was not the consequence of the fire door event, but is the long-term clinical history of the Applicant’s shoulder from 2004-2005 when he had the injury that resulted in the original surgery and its consequences.
·Said in his opinion the changes that were subsequently discovered in the joint really supersede, any finding or acceptance that the Applicant had an injury when he opened the door. The force itself, in his opinion, of opening the door, is not enough to alter the course of the underlying degenerative problem which is the consequence of what occurred in 2004-2006.
·Said in his view the incident in 2015 was not the cause of the tears to the soft tissue pathology, his opinion is that while the Applicant had a sore shoulder that when considering the findings of Dr Damiani’s operative report, the tears were not caused by the opening of the fire door.
·Said arthritis makes all the tissues become soft and deteriorate.
·Said in his clinical experience he has not ever seen over tensioning of a bicep as a clinical problem.
·Said there is a danger here that a new doctor, new surgeon, new operation, hopes to try and fix what is the source of the chronic pain problem. The injections suggested by Dr Tunggal will not fix the aching in the shoulder because the aching in the shoulder is due to the degeneration which Dr Damiani found.
·Said he is saying this in the context of the fact that the glenohumeral joint was degenerative in 2016 and it is important to know that the Applicant has chondrocalcinosis which is a condition where crystals form in the joints and they were present in 2017, they come from all different sorts of reasons, but what they do is accelerate the degeneration. So, the operation that Dr Tunggal proposes, in his view will not fix the problem of the pain because the problem is that the shoulder is painful for other reasons.
·In acknowledging the Applicant’s contention that he has never dislocated his right shoulder, said it is circumstantial because the changes that are recognised as the pattern of dislocation are the changes that are present in his shoulder. So, either the shoulder has had a soft tissue injury, partly popped out and then gone back in, and while he cannot comment on what actually occurred, what he can say, as a surgeon, is that those changes that are seen in 2006 when Dr Creer operated were changes of dislocation.
CONTENTIONS
Respondent’s Contentions[57]
[57]    See Respondent’s Outline of Submissions submitted at Hearing and Transcript, pages 25-31.

The Respondent contended that:[58]
(a)the Applicant suffered from a musculoskeletal sprain on 13 October 2015;
(b)that sprain did not bring about a physiological change in the Applicant’ right shoulder (as required by Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468; [2016] HCA 19);
(c)accordingly, liability should never have been accepted for the injury;
(d)alternatively, if the musculoskeletal sprain did bring about a physiological change in the Applicant’s right shoulder and it therefore did constitute an ‘Injury’, that injury resolved within 4 to 6 weeks and, on and from that date, the Applicant has suffered the effects of the underlying degenerative condition and not the Injury, Therefore, since that time, Comcare has not been liable under sections 16 and 19 of the SRC Act in respect of the Injury;
(e)alternatively, if what the Applicant suffered on 13 October 2015 was an ailment (being a temporary aggravation of his underlying degenerative condition), it did not constitute an aggravation for the purposes of the SRC Act because the aggravation resulted in pain only, not a physiological change;
(f)accordingly, there was no ‘disease’ and liability should never have been accepted for the injury;
(g)alternatively, if there was an aggravation (because a physiological change is present), and therefore liability was properly accepted for an injury (being a disease), that Injury resolved at least form the date when Dr Allen examined the Applicant (16 October 2019) because, according to Dr Allen, the effects of the Injury have resolved and the symptoms suffered by the Applicant are referable to the underlying degenerative condition.
[58] Respondent’s Outline of Submissions submitted at Hearing, page 4, paragraph 15.
The Respondent’s primary contention was that the preferable diagnosis for what the Applicant suffered on 13 October 2015 when he opened the fire exit door was a musculoskeletal sprain. The Respondent submitted that it is of no real consequence if the door was faulty and it does not deny that the Applicant experienced pain as a result of his interaction with the door or that date.
The Respondent in relying on the reports and evidence provided at Hearing by Professor Steadman, contended that the musculoskeletal sprain is separate and distinct from the underlying degenerative condition in the Applicant’s shoulder.
The Respondent contended that the Professor Steadman’s evidence should be preferred as he is appropriately qualified, has had regard to all of the available documentary material including the vast array of radiological reports, is an independent witness and was made available for cross-examination, under which he maintained his opinion when challenged.
The Respondent contended that Professor Steadman comprehensively explained why the operation report from 2006 does not demonstrate significant degeneration, but by 2016, it is present. He explained that the impact of the 2006 operation in this regard was significant and maintained throughout his evidence that nothing that occurred on 13 October 2015 either changed the degenerative nature of the underlying condition, impacted it in any way, or indeed was causative of it.
The Respondent referred the Tribunal to the High Court decision in Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468; [2016] HCA 19 as authority for the principle that for an injury to exist for the purposes of section 5A(1)(b) of the SRC Act a physiological change is required. The Respondent contended that a musculoskeletal sprain does not give rise to a physiological change, relying on the opinion provided by Professor Steadman, and therefore does not constitute an injury for the purpose of SRC Act. The Respondent contended that in any event Professor Steadman’s opinion was that the musculoskeletal sprain resolved in four to six seeks of 13 October 2015, so that even if there was an injury – in the primary sense of that word – then it resolved a long time ago.
The Respondent contended that as such the determination and reviewable decision that found that liability ceased in January 2020 ought clearly to be affirmed.
In relation to the Applicant’s submission that the Respondent did accept liability, so it cannot take those decisions back, the Respondent contended that was a misstatement of the law based on the decision in Telstra Corporation Limited v Hannaford [2006] FCAFC 87 which outlined that findings of fact can be made subsequently that undercut previous findings of facts that have been made.
The Respondent contended that the reports of Dr Tunggal and Dr Lewington do not grapple with the causative test in section 5B of the SRC Act and their opinions are not well reasoned as they do not provide justification for their opinion in light of the various issues that arise, particularly in relation the 2006 operation and the impact of that. Further, it is not clear that they were provided with the whole array of documents and as such the Respondent contended that the Tribunal could not be confident that their opinions actually take into account all of the relevant information.
The Respondent contended that the issue of the Applicant jolting up in bed two weeks after the operation is totally non-related to work in any way. The Respondent relies on Professor Steadman’s evidence that it is less likely that the jolt was the result of the surgery and because the Applicant was wearing a sling which is a protective factor, there is no correlation that can be drawn over a 14 day period between a jolt sitting up in bed and the operation. Further the Respondent contended that the operations that were performed were actually not in respect of the injury that the Applicant suffered from – the musculoskeletal sprain, as such anything arising from it would not give rise to liability because it did not actually address an injury for the purpose of the SRC Act.
Applicant’s Contentions
In closing submissions, the Applicant provided the following contentions:[59]
·In regards to Dr Tunggal and Dr Lewington’s reports, they could not be pursued as further treatment could not be pursued because the Respondent closed the case.
·The jolt is clearly an incident which occurred and is relevant to the ongoing pain associated with the bicep, which can be a complication of surgery, regardless of whether or not he was in a sling.
·The estimated recovery timeframes which had been outlined during the Hearing were general statements based on averages and are not specific to his case.
·Whether or not the accepted condition should have been accepted and treatment approved, or whether the surgery contributed to his condition, is irrelevant. The fact is that he pulled on a faulty door on 13 October 2015 and both of his operations were approved by the Respondent.
·Where a compensable injury gives rise to a subsequent injury that satisfied the definition of any injury in section 4 of the Act, that subsequent injury is to be treated as a separate injury with all of the entitlements of a separate injury.
·He relies on the reports by Dr Damiani and Dr Burke regarding the attributing factors and degenerative diseases and the 50/50 rule. Regardless of the discrepancy in Dr Burke’s report he has attributed a link.
[59] Transcript, pages 31-32.
CONSIDERATION
The Tribunal notes that there is no dispute in relation to the facts of this matter, it is accepted that the incident reported by the Applicant that occurred on 13 October 2015, occurred and resulted in him experiencing pain for which subsequent treatment was obtained. There is also no dispute that on 20 November 2015, the Respondent accepted liability for ‘partial tear rotator cuff (right)’ with a date of injury of 13 October 2015.
The Tribunal accepts that the Applicant has since 13 October 2015 experienced pain in his right shoulder and that in the lead up to and subsequent to the surgery in 2017 pain also in his right bicep. The Applicant continued to report his pain symptoms since the date of injury.
The dispute in this matter, however is whether the Applicant has an ongoing entitlement to compensation under the SRC Act, which really is a medical question.
The Tribunal notes that for liability to pay compensation in relation to medical treatment, incapacity benefits, and household and attendant care under section 16, 19 and 29 of the SRC Act the Applicant must continue to suffer an injury. This means the causative thresholds provided by section 5A and 5B of the SRC Act must continue to be met.[60]
[60] See Prain v Comcare [2017] FCAFC 143.
Consequently, simply because liability has been accepted, does not mean that a later decision cannot make new findings of fact that either liability ought never have been accepted for the injury or that liability ceased to have effect. In Telstra Corporation Ltd v Hannaford [2006] FCAFC 87; (2006) 151 FCR 253, Conti J outlined at [59]:
59. I would therefore conclude, contrary to the decision of the primary judge, that the AAT below was duly empowered, upon the true construction of the SRA Act [sic] and in the events which happened
(i) to make findings of fact that effectively undercut the necessary findings of fact made in the initial or original decision...under s 14 of the SRC Act to accept liability in respect of Mr Hannaford’s claim for compensation; and

(ii) to do so in circumstances where the AAT was undertaking its review of whether any compensation should be payable or further payable, for instance under ss 16 and 19 of the SRC Act,... and

(iii) to do so in the circumstances further where Telstra’s s 14 decision remained in force to the extent that it had not been actually reversed, and had not been the subject of any adverse review per se by the AAT.
In this matter the initial question for the Tribunal is whether the Applicant suffered an injury as a result of the incident on 13 October 2015. The Applicant contended that he did suffer an injury as a result of that incident and that it does not matter whether his condition is considered to be a disease or injury other than a disease. However, that is not the case as the tests under sections 5A and 5B of the SRC Act have different thresholds.
As outlined above, the Tribunal accepts, based on the evidence before it that the incident on 13 October 2015 did cause an injury to the Applicant, however what is to be determined is whether it could also be considered to be an injury for the purposes of the SRC Act.
There are a large number of medical reports before the Tribunal in relation to the Applicant’s right shoulder and what has transpired since October 2015. What is consistently reported by all of the specialists is that the surgery performed on 7 June 2016 revealed an underlying degenerative condition in the Applicant’s right shoulder which was a result of the injury and surgery that occurred between 2004 and 2006, not of the October 2015 incident.
A point of contention is whether the surgery performed on 7 June 2016 was required as a result of the October 2015 incident or the underlying degenerative changes and whether in hindsight the surgery was actually required or did provide any benefit to the Applicant.
This leads to the diagnosis of the condition. Dr Damiani who was the Applicant’s treating orthopaedic surgeon throughout 2015 to 2017 diagnosed that as a result of the October 2015 incident the Applicant suffered from a rotator cuff tear and that further as a result of a complication following the 2016 surgery the Applicant required surgery to repair the tendon and a bicep tenodesis.
Professor Steadman, who with the benefit of having reviewed all of the available medical evidence in relation to the Applicant together with reviewing the Applicant formed the view that the correct diagnosis in relation to the October 2015 event was that the Applicant suffered a musculoskeletal sprain and that further the pain that the Applicant experienced both before and after the 2016 and 2017 surgeries was caused by the Applicant’s underlying degenerative condition, namely glenohumeral arthritis.
Professor Steadman provided in his reports and at Hearing that the findings of Dr Damiani at the time of the 2016 surgery in relation to the Applicant’s joint superseded any findings and acceptance that the Applicant sustained an injury as a result of the October 2015 incident. Professor Steadman provided that in his opinion the force itself of opening the door was not enough to alter the course of the underlying degenerative problem which was a consequence of the 2004-2006 injury and surgery.
Professor Steadman explained his diagnosis of musculoskeletal sprain and why such a sprain does not lead to a physiological change.
Professor Steadman explained to the Tribunal that arthritis makes all of the tissues become soft and deteriorate and as such in his view the October 2015 incident was unlikely to have caused a tear (for which the initial accepted condition was based on). Further Professor Steadman provided that in his experience the over tensioning of a bicep was not seen as a clinical problem. Professor Steadman maintained his opinion, both under cross-examination and in response to questions asked by the Tribunal, that the Applicant’s ongoing pain was not a result of the October 2015 incident or subsequent surgeries, but rather was a result of the degenerative change in his right shoulder. Further Professor Steadman explained why due to the nature of the Applicant’s degenerative condition further surgery to the Applicant’s bicep would not resolve his ongoing pain.
The Tribunal notes the diagnoses and opinions provided by Dr Burke, Dr Tunggal and Dr Allen as set out above. It is relevant to note that Dr Tunggal is the only specialist that indicated that the Applicant’s bicep pain was a result of the 2017 surgery and considered that further surgery may assist. It is not clear to the Tribunal that Dr Tunggal had reviewed all of the relevant medical evidence in forming that view.
Having reviewed the evidence in totality and having had the benefit of Professor Steadman give evidence the Tribunal prefers and accepts the opinion of Professor Steadman. The Tribunal notes and agrees with the Respondent that Professor Steadman is appropriately qualified, has had regard to all of the available documentary material and was made available for cross-examination.
While much emphasis was placed on the surgeries performed by Dr Damiani and the opinions provided by Dr Burke and Dr Tunggal by the Applicant, he did not provide any evidence from any of these specialists that either considered, nor contradicted the evidence provided by Professor Steadman. The Tribunal accepts that the Applicant has experienced shoulder and bicep pain since the October 2015 incident, however that is not enough to establish that an injury for the purposes of section 5A of the SRC Act occurred.
The Tribunal notes that in Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468; [2016] HCA (May) the High Court considered the proper interpretation of the phrase ‘injury (other than a disease)’ and found that a physiological change is required in order for there to be an injury for the purpose of section 5A(1)(b) of the SRC Act. In a number of decisions, the Tribunal has appropriately applied the decision in May to exclude injuries from being considered as injuries for the purposes of section 5A of the SRC Act.[61] The majority in May, consisting of French CJ, Keifel, Nettle and Gordon JJ provided:[62]
The Full Court concluded that the inquiry demanded by the statutory definition of “injury” was “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” (emphasis added). To the extent that conclusion suggested that subjectively experienced symptoms, without an accompanying physiological or psychiatric change, are sufficient to provide a positive answer to the first or third questions set out above, that conclusion should be rejected.
….
Put another way, the proper construction of the Act recognises that an employee may genuinely complain of being unwell, but, in the context of the “injury (other than a disease)” limb of the definition of “injury”, unless that employee can satisfy the tribunal of fact that he or she has suffered an “injury” (in the primary sense of the word), s 14 of the Act will not be engaged.
The “nature and incidents of the physiological [or psychiatric] change” will determine whether there was an “injury (other than a disease)”. The evidence to be adduced, of course, will vary from case to case and, where appropriate, may take into account common-sense inferences drawn from a sequence of events. To take an extreme example, the dismemberment of a limb involves a physiological change as a matter of common sense. But there must be more than an assertion by an employee that he or she feels unwell.
…
Mr May asserted that he felt unwell. The Tribunal accepted that he felt unwell. But the “nature and incidents of the physiological [or psychiatric] change” suffered by Mr May were not established. There was no “injury” in the primary sense of that word.
[61] See for example, Comcare v Stefaniak [2020] FCA 560; Williamson and Comcare [2019] AATA 4774; and Pearson and Prosegur Australia Pty Ltd (Compensation) [2021] AATA 312.
[62] At paragraphs [57], [61]-[62] and [67].
Based on the evidence before it, the Tribunal finds that the preferable diagnosis as a result of the event on 13 October 2015 was that the Applicant suffered from a musculoskeletal sprain of which a physiological change did not result. As such, the Tribunal finds that the event on 13 October 2015, whilst causing a sprain to the Applicant’s shoulder cannot be considered to be an injury for the purposes of section 5A(1)(b) of the SRC Act.
Consequently, the Tribunal finds that no liability exists in relation to medical treatment, incapacity benefits and household and attendant care under section 16, 19 and 29 of the SRC Act and therefore the Respondent’s decision must be affirmed.
Even if the Tribunal was to have found that the musculoskeletal sprain was an injury for the purposes of section 5A of the SRC Act, based on the preferred evidence of Dr Steadman and for that matter the evidence of Dr Allen the effects of such an injury could be said to have resolved at a time well before the reviewable decision or at least by the time the Applicant saw Dr Allen in October 2019. The medical evidence before the Tribunal indicates that the Applicant’s past and present pain results from the underlying degeneration in his shoulder.
Further, for completeness the Tribunal notes that had it have considered that the incident in October 2015 resulted in the Applicant having suffered a disease for the purposes of sections 5A and 5B of the SRC Act, the evidence before the Tribunal provides that in the opinion of Dr Burke, Dr Allen and Professor Steadman the pain being experienced by the Applicant at the time they reviewed him was attributable to the underlying degenerative condition rather than to the incident in October 2015. As such the findings of the Tribunal would be the same, albeit for different reasons.
Based on the Tribunal’s findings, the Applicant’s contention that his present pain and ongoing problems with his shoulder and bicep were likely to be attributed to complications linked to the surgeries performed by Dr Damiani and therefore should be considered as a standalone injury pursuant to section 4(3) of the SRC Act is not accepted.
CONCLUSION
Accordingly, the decision under review is affirmed.

I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

...................[SGD]..........................

Associate
Dated: 25 August 2021

Date of Hearing: 5 July 2021

Applicant:

Counsel for the Respondent:

By Microsoft Teams

Ms Kate Slack

Solicitors for the Respondent: Sparke Helmore Lawyers