Ross and Comcare (Compensation) - [2020] AATA 4350

Ross and Comcare (Compensation) [2020] AATA 4350 (2 November 2020)
Division:GENERAL DIVISION
File Number: 2018/3951
Re:Vivienne Ross
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:2 November 2020
Place:Perth

The Reviewable Decision dated 23 May 2018 is affirmed.
......................[Sgd]..................................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
COMPENSATION – Workers’ Compensation – Commonwealth employee – whether liability should be accepted under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – whether the Applicant suffers from an injury – degenerative osteoarthrosis condition aggravated by workplace incident – stress related fracture to right hip which resulted in the need for a hip replacement – whether a disease – whether an injury other than a disease – whether an ailment – aggravation of an ailment – causation – whether contributed to, to a significant degree, by employment – Reviewable Decision affirmed
LEGISLATION
Compensation (Commonwealth Government Employees) Act 1971 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 4, 4(1), 5A(1), 5A(1)(a), 5A(1)(b), 5B, 5B(1), 5B(1)(a), 5B(1)(b), 5B(2), 5B(2)(a), 5B(2)(b), 5B(2)(c), 5B(2)(d), 5B(2)(e), 5B(3), 14, 14(1)
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth)
CASES
Australian Postal Corporation v Burch (1998) 85 FCR 264
Comcare v Mooi (1996) 69 FCR 439
Comcare v Power (2015) 238 FCR 187
Comcare v Reardon (2015) 148 ALD 356
Commonwealth v Beattie (1981) 35 ALR 369
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Tippett v Australian Postal Corporation (1998) 27 AAR 40
Vo and Comcare [2005] AATA 773
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
2 November 2020
SUMMARY

The Applicant is seeking review of a decision of Comcare dated 23 May 2018 (T29) (the Reviewable Decision), made under the Safety, Rehabilitation and Compensation Act 1988 (Cth). All subsequent references to legislative provisions are from this Act unless otherwise indicated.
The Reviewable Decision affirmed a determination of Comcare dated 24 April 2018 (T25) to refuse to accept liability under s 14(1) for the Applicant’s claim for “[s]tress related fracture which has resulted in need for a hip replacement (right side)” (T10/27). The determination letter referred to the claim as a “claim for osteoarthrosis, localized(right)” (T25/92) whereas the Reviewable Decision described it as “osteoarthrosis of the right hip”.
The Applicant believes that she suffered a stress fracture on 5 December 2017 from the repetitive climbing of stairs on a maritime vessel as part of her employment for a Commonwealth government department (the Department).
Comcare accepts that the Applicant has a degenerative osteoarthrosis condition which was aggravated by the workplace incident in December 2017. However, Comcare submits that it was not significantly contributed to by the Applicant’s employment with the Commonwealth, and so Comcare should not accept liability under s 14(1) (R1/5).
For the reasons below, the Tribunal agrees with Comcare’s submission and has found that the correct or preferable decision is to affirm the Reviewable Decision.
BACKGROUND
The Applicant commenced employment with the Department on 6 June 2000 (T10/32). At the relevant time she was employed as an APS6 (Australian Public Service Level 6) officer (T10/32).
On 2 November 2017, the Applicant underwent an ultrasound of her anterior right hip joint and an x-ray of her pelvis and right hip. The radiology report described her symptoms as “‘deep’ pain at the anterior right hip joint”. The findings included that there was

“mild-moderate degenerative arthrosis at the right hip joint”, and “[m]ild degenerative changes noted at the left hip”. The comment at the conclusion of the report was that the Applicant’s “symptoms are felt most likely secondary to right hip joint degenerative arthropathy” and that a steroid injection had been scheduled for 3 November 2017 (T4/15).
A further radiology report dated 3 November 2017 recorded that the Applicant underwent a CT guided injection under local anaesthetic to her right hip joint (T5/16).
On approximately 2 December 2017 the Applicant was deployed to a maritime vessel as part of her employment with the Department (T8/20; T28/106).
The Applicant made a Workers’ Compensation Claim on 17 January 2018 (T10/31). As noted above, her claim was for a “[s]tress related fracture which has resulted in need for a hip replacement (right side)” and stated that the affected body part was her “[h]ip” (T10/27).
In her claim form, in response to the question, “What happened and how were you injured?”, the Applicant answered the following (T10/27):
Required to move between interviewing location and command centre. This involved repetative [sic] climbing of stairs (approximately 120 on at least 21 occasions) on 5/12/2017. I noticed soreness as the day wore on however was not able to rest.
The Applicant stated in her claim form that she first sought treatment for the injury on

15 December 2017 (T10/29).
A first certificate of capacity completed by an emergency department doctor dated

29 January 2018, confirmed that the Applicant sought treatment and was assessed on

15 December 2017. This certificate recorded that the Applicant had a sudden onset of pain when she “[s]tepped awkwardly walking down steps at work”. The symptoms were described as “[p]ainful right hip” and “markedly decreased mobility in R[ight] hip”. The diagnosis was stated as “osteoarthritis right hip – acute exacerbation”, with a note that the Applicant had been referred to Dr Vara Mukundala, an Orthopaedic Surgeon, for further assessment (T12/38-39).
In a letter addressed to the doctor on duty at the medical centre attended by the Applicant dated 19 December 2017, Dr Mukundala diagnosed the Applicant with “[a]cute onset of osteoarthritis of the right hip”. The letter stated that the Applicant was admitted to hospital on 15 December 2017 and that (T7/18):
She had an acute onset of pain in the right hip. After examining and investigating her, I have ruled out an infected hip. MRI scan has shown that she has stress fracture of the femoral head. There are also changes of osteoarthritis of her right hip. I have advised her to have a total hip replacement on the right side.
In a further letter addressed to the doctor on duty dated 16 January 2018 (T9),

Dr Mukundala stated that, “[t]he primary diagnosis is osteoarthritis of the right hip joint secondary to a stress fracture which is secondary to osteoporosis/avascular necrosis of the femoral head” (T9/25).
Dr Iain Kelman, Consultant Orthopaedic Surgeon, undertook an assessment of the Applicant on 23 March 2018 at the request of Comcare. Dr Kelman produced a report dated 4 April 2018 in which he stated that the Applicant “suffers from osteoarthrosis of the right hip joint which was symptomatic prior to the incident” and that he was of the opinion that the Applicant suffered from the condition prior to December 2017 (T23/80). His opinion was that climbing the stairs may have caused the femoral head to collapse (being a more accurate description than a stress fracture) earlier than would normally be expected, but that it would have done so in the normal course of events (T23/81).
On 24 April 2018, a Comcare delegate wrote to the Applicant, stating that, whilst she recognised that the Applicant suffered an ailment, she considered the Applicant’s “employment was not significant in the causation of your condition”. The delegate further stated that (T25/92):
based on the evidence available to me, I am not satisfied that your reported duties in the workplace can be considered a [sic] causative in development of your claimed condition, which has been identified as being osteoarthrosis of your right hip. The evidence shows that you were suffering from a symptomatic pre-existing degenerative condition in your right hip, which you sought medical treatment for including medical imaging in November 2017, prior to the claimed workplace duties which commenced on 5 December 2017.
On 4 May 2018 the Applicant requested a reconsideration of the determination of

24 April 2018 (T28/105). She included a statement with her reconsideration request. In this statement the Applicant said that she believed that the steroid injection to her hip on

3 November 2017 stemmed from a back injury that she believed occurred in October 2016 when she stepped down from a ladder. This resulted in knee pain, which resolved after the injection in her hip (T28/106). The Applicant further stated that (T28/106):
I accept the diagnosis of osteoarthritis however at the time of leaving to go on the deployment I had no problems with my hip. On return I was diagnosed with a stress fracture. There has been some discussion regarding the use of this term however the fact remains that I departed for the deployment without any apparent problem with my right hip. I maintain that the injury occurred as a result of the stressors of the particular job I was tasked to do and had I not undertaken the deployment and remained only doing the duties usually allotted to me, any problem with my hip my [sic] not have manifested itself until sometime in the future.
However as noted above, on 23 May 2018, a Comcare delegate made the Reviewable Decision, which affirmed the determination dated 24 April 2018 (T29/107).
On 17 July 2018, the Applicant lodged an application in the General Division of the Administrative Appeals Tribunal (Tribunal), seeking review of the Reviewable Decision (T2).
MATERIAL BEFORE THE TRIBUNAL
The hearing of this matter took place on 15 July 2020 by videoconference in accordance with the Tribunal’s policy not to conduct in-person hearings as a temporary protective measure due to the COVID-19 pandemic. The Tribunal thanks the parties for their cooperation in appearing in this manner.
The Applicant was self-represented. Ms Slack appeared as Counsel for Comcare, instructed by Ms Jones-Bolla from Sparke Helmore Lawyers.
The Applicant gave evidence at the hearing and was cross-examined by Ms Slack. Comcare called Dr Iain Kelman as a witness. Dr Kelman appeared by telephone.
The Tribunal admitted into evidence the following materials at the hearing:
(a)Letter from the Applicant dated 6 November 2018 attaching:
(i)a written statement dated 6 November 2018;
(ii)10 pages of photos of maritime vessels;
(iii)five attendance certificates for Physiotherapy sessions;
(iv)three attendance certificates for Chiropractor sessions; and
(v)a picture of work boots;
(Exhibit A1);
(b)Bone Densitometry Assessment from Associate Professor Rob Will, Consultant Rheumatologist, dated 3 April 2020 (Exhibit A2);
(c)Written statement from the Applicant dated 3 June 2019 in response to the information provided in the 26 April 2019 supplementary report from Dr Kelman (Exhibit A3);
(d)Comcare’s bundle of evidence, comprising of 53 pages, filed 8 July 2020 (Exhibits R1 through to R10). This bundle includes Comcare’s Statement of Facts, Issues and Contentions dated 27 June 2019 as Exhibit R1, and the supplementary report of Dr Kelman dated 26 April 2019 as Exhibit R3);
(e)Section 37 documents numbered T1 through to T31, comprising 117 pages (Exhibit R11).
ISSUES
The issue that requires determination by the Tribunal is whether Comcare is liable to pay compensation to the Applicant, pursuant to s 14(1).
This requires a consideration of:
(a)the appropriate diagnosis of the Applicant’s condition; and
(b)whether the Applicant’s condition is a “disease” or an “injury (other than a disease)”, which will determine the applicable test for causation that the Tribunal is required to apply.
LEGISLATIVE FRAMEWORK
Comcare’s liability to pay compensation is provided for in s 14(1):
14. Compensation for injuries
(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
An “injury” is defined in s 5A(1) as follows:
(1)In this Act:
“injury” means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
Section 5B defines a “disease” as follows:
(1)In this Act:
“disease” means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3)In this Act:
“significant degree” means a degree that is substantially more than material.
Section 4 defines “ailment” as “…any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”.
The case law and Tribunal decisions which are relevant to these provisions are discussed under the relevant headings below.
WHAT IS THE APPROPRIATE DIAGNOSIS OF THE APPLICANT’S CONDITION?
There are alternate references in the medical evidence before the Tribunal to “osteoarthrosis” and “osteoarthritis”. Dr Kelman explained that the correct term for the condition is “osteoarthrosis” (but that it was previously referred to as “osteoarthritis”) (Exhibit R3/2).
Medical records from the Applicant’s general medical practice before the Tribunal indicate that the Applicant complained of pain in her right anterior thigh on 23 July 2011 with the medical note recording a “tender hip” and requesting diagnostic imaging of the Applicant’s hip joints and pelvis, with a note of possible osteoarthritis (R6/29-30). A subsequent note on 26 April 2012 recorded increasing pain in the Applicant’s right groin and hip and that the x-ray showed early osteoarthritis (R6/29). A record dated 4 March 2014 records that the Applicant had moderate osteoarthritis in her right hip (R6/26). This evidence indicates that the Applicant suffered from pre-existing osteoarthrosis from approximately 2011 or 2012.
There is agreement between the parties that the Applicant suffers from osteoarthrosis of the right hip. In her reconsideration request, the Applicant stated, “I accept the diagnosis of osteoarthritis…” (T28/106). Comcare relied upon the opinion of Dr Kelman who, as stated above, diagnosed the Applicant with “osteoarthrosis of the right hip joint” (T23/80).
As noted above, on 19 December 2017 Dr Mukundala diagnosed the Applicant with an “acute onset of osteoarthritis of the right hip” (T7/18). On 16 January 2018, Dr Mukundala stated that the osteoporosis/avascular necrosis of the femoral head was secondary to the stress fracture (T9). However, Dr Kelman explained in his supplementary report of

26 April 2019 that he disagreed with Dr Mukundala on that point. Dr Kelman stated (Exhibit R3/4):
I consider this to be incorrect. I consider that what he [Dr Mukundala] described as a stress fracture, his [sic] collapse of the femoral head, which is a result of the osteoarthritic process was not caused by the collapse of the femoral head. Also I consider that Dr Mukundala’s interpretation of the osteoarthritis was caused by this fracture is not correct. It was rather as a consequence thereof.
In the Tribunal’s opinion, the more plausible opinion is that of Dr Kelman. This is because Dr Kelman’s opinion is consistent with the other medical evidence before the Tribunal that the Applicant had pre-existing osteoarthrosis of the right hip, including the ultrasound and x-ray from November 2017 (see paragraph [7] above). Also, it is more likely that the osteoporosis caused the collapse of the femoral head rather than the reverse.
Therefore, the Tribunal finds that the Applicant suffers from osteoarthrosis of the right hip and that as part of the progression of the osteoarthrosis, she suffered a collapse of the femoral head. This will be referred to as the Claimed Condition.
IS THE CLAIMED CONDITION A “DISEASE” OR AN “INJURY (OTHER THAN A DISEASE)”?
As noted above, Comcare is liable to pay compensation to the Applicant under s 14 if the Applicant suffered an “injury” within the meaning of s 5A(1).
An “injury” under s 5A(1) includes a “disease” (s 5A(1)(a)) and an “injury (other than a disease)” (s 5A(1)(b)) suffered by the employee.
Section 5B(1) defines a “disease” as an “ailment suffered by an employee”
(s 5B(1)(a)) or an “aggravation of such an ailment” (s 5B(1)(b)) both of which must be “contributed to, to a significant degree, by the employee’s employment”.
The distinction between ss 5A(1)(a) and 5A(1)(b) is an important one because the classification will determine the applicable test for causation.
For an injury that is not a disease (often referred to as an injury simpliciter), the injury must arise out of, or in the course of, employment (s 5A(1)(b)).
An injury simpliciter (within the meaning of s 5A(1)(b)) can be contrasted with a “disease” which, according to s 5B(1), must be contributed to, to a significant degree, by the employee’s employment. Thus, a “disease” requires a stronger causal connection between the employment and the ailment (Australian Postal Corporation v Burch (1998) 85 FCR 264, 268) than an injury simpliciter.
In Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468 (May), 480-81, French CJ, Kiefel, Nettle and Gordon JJ (the majority), discussed the meaning of an “injury”, citing the judgment of Gleeson CJ and Kirby J in Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286. The majority stated:
45.“Injury” in para (b) is used in its “primary” sense. As Gleeson CJ and Kirby J explained in Kennedy Cleaning Services Pty Ltd v Petkoska, if “something ... can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an ‘injury’ in the primary sense of that word” (emphasis added).
46.That physiological change or disturbance of the normal physiological state may be internal or external to the body of the employee. It may be, for example, the breaking of a limb, the breaking of an artery, the detachment of a piece of the lining of an artery, the rupture of an arterial wall or a lesion to the brain. Each would be described as an “injury” in the primary sense.
47.However, as the Full Court correctly held, “suddenness” is not necessary for there to be an “injury” in the primary sense. A physiological change might be “sudden and ascertainable”. A physiological change might be “dramatic”. The employee’s condition might be a “disturbance of the normal physiological state”. That an “injury” in the primary sense can arise, and can be described, in a variety of ways does not mean that “suddenness” is irrelevant. As the Full Court said, “suddenness” is often useful where there is a need to distinguish a physiological change from the natural progress of an underlying (and in one sense, closely related) disease (as occurred in Zickar v MGH Plastic Industries Pty Ltd and Kennedy Cleaning). But it is the physiological change – the nature and incidents of that change – that remains central.
48.That an “injury” in the primary sense can arise, and be described, in a variety of ways was recognised by Gleeson CJ and Kirby J in Kennedy Cleaning when their Honours stated:
“[C]onsideration [must] be given to the precise evidence, on a fact by fact basis, concerning the nature and incidents of the physiological change accepted at trial. If this evidence amounts, relevantly, to something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an ‘injury’ in the primary sense of that word.” (emphasis added.)
49.It is against that background that the Act requires the tribunal of fact to give consideration to “the precise evidence, on a fact by fact basis,... accepted at trial” and then to ask certain questions in order to determine whether an employee is suffering a “disease” or an “injury (other than a disease)”.
(Footnotes omitted.)

The questions that the Tribunal must ask in order to identify whether there is a disease or an injury simpliciter were further described by the majority in May at 481-482:
49.… the Act requires the tribunal of fact to give consideration to “the precise evidence, on a fact by fact basis, ... accepted at trial” and then to ask certain questions in order to determine whether an employee is suffering a “disease” or an “injury (other than a disease)”.
50.First, does the evidence amount, relevantly, to something that can be described as an “ailment”, being a physical or mental ailment, disorder, defect or morbid condition? Second, if so, was that state contributed to in a material degree by the employee’s employment by the Commonwealth?
51.If the answer to both those questions is “Yes”, there is a “disease” within para (a) of the definition of “injury”. Of course, in some cases, the answer to those questions may be admitted. That is, the employee may admit that the answer to the first question, or both the first and the second questions, is “No”.
52.If there is not a “disease” within para (a) of the definition of “injury”, the tribunal of fact next inquires whether there is an “injury (other than a disease)” within para (b). The third question is – does the evidence demonstrate the existence of a physical or mental “injury” (in the primary sense of that word)? Generally, that 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. However, that judicial language is not to be construed or applied as if it were the words of a statute defining a necessary condition for the existence of an “injury (other than a disease)”. The language of judgments should not “be applied literally to facts without further consideration of what is conveyed by the reasoning” in the cases from which it is derived, or without regard to the text and scheme of the Act.
53.If there be an “injury” in the primary sense of the word, the next question is – did that injury arise out of, or in the course of, the employee’s employment by the Commonwealth? If that question is answered “Yes”, there is an “injury (other than a disease)” within para (b) of the definition of “injury” in s 4(1) of the Act. In some circumstances, if the answer is “No”, it may be necessary to ask whether the case is one involving aggravation of an injury. That question does not arise in this appeal.
(Footnotes omitted.)
In a separate judgment in May, Gageler J also identified the need for a definitive physiological change or disturbance for there to be an injury. His Honour stated at 487:
The understanding of an injury as a definite or distinct physiological change or disturbance was first expounded in cases in which catastrophic consequences of pre-existing medical conditions came to be recognised as capable of constituting injuries. The exposition has remained particularly useful in cases within that category. The analysis undertaken in those cases has always looked beyond mere alterations of physical or mental functioning of the mind or body to the identification of the physiological happenings which have resulted in those alterations: destruction of tissue, collapse of vertebrae, rupture of blood vessels, occlusion of an artery, development of a lesion. The point of explaining an injury in terms of a definite or distinct physiological change or disturbance has been to highlight the necessity for such an analysis to be undertaken.
In order to be a “disease” the Applicant’s Claimed Condition must be an “ailment”. The definition of an “ailment” in s 4(1) was discussed by Drummond J in Comcare v Mooi (1996) 69 FCR 439, 442:
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.
In Vo and Comcare [2005] AATA 773 Senior Member Constance (now Deputy President Constance) and Member Miller discussed the meaning of an “ailment”, at [54]:
The definition of “ailment” is very broad... The terms “ailment” and “morbid condition” both connote a condition of disease in their ordinary meanings apart from their use as part of the definition of “disease” in the Act. In context the words “disorder” and “defect” should be interpreted accordingly. The definition of “ailment” in section 4 is somewhat circular as it includes the word “ailment” within its own definition. The Macquarie Dictionary (Revised Third Edition) definition of “ailment” includes “a morbid affection of the body or mind” and “morbid” includes “affected by, proceeding from, or characteristic of disease.”
Comcare submitted that the Claimed Condition is an ailment, or an aggravation of an ailment, and is a disease in accordance with s 5B(1) (Exhibit R1/3). This was because the nature of the physiological change in the Applicant’s hip gradually occurred over a period of years. Additionally, the stress fracture was not distinct from the underlying pathology and would have occurred due to the natural progression of the disease (Exhibit R1, para [4.4] - [4.5]; transcript/40).
The Tribunal agrees with Comcare’s submission that the Claimed Condition is a disease for the reasons advanced by Comcare. The Claimed Condition is, in the Tribunal’s opinion, an ailment because it is more akin to the natural progression of a morbid affection of the body which is characteristic of a disease. The medical evidence before the Tribunal indicates that there was no sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, which suggests a disease rather than an injury simpliciter.
Specifically, Dr Kelman referred to the “gradual onset of the condition” and that “[t]here is no doubt that she would have developed the current condition as a natural progression of the pre-existing condition irrespective of employment” (Exhibit R3/5). Dr Kelman further stated that “[t]he activity that she was carrying out while on deployment led to an aggravation of the conditions of her hip” (Exhibit R3/5) and that “the activities on or about
5 December 2017 rendered a pre-existing condition symptomatic” (Exhibit R3/6).
Consequently, the Tribunal finds that the Claimed Condition is best characterised as an “ailment” under s 4(1) and therefore a “disease”. Specifically, the Applicant suffered “an aggravation of such an ailment”, within the meaning of a 5B(1)(b).
WAS THE DISEASE CONTRIBUTED TO, TO A SIGNIFICANT DEGREE, BY THE APPLICANT’S EMPLOYMENT WITH THE COMMONWEALTH?
To succeed in this application the Claimed Condition (being an aggravation of an ailment) must be contributed to, to a significant degree by the Applicant’s employment with the Commonwealth (s 5B(1)). A significant degree is defined in s 5B(3) as “a degree that is substantially more than material”.
In Comcare v Power (2015) 238 FCR 187 (Power), Katzmann J discussed the meaning of “to a significant degree” in s 5B(2). Her Honour stated at 201 [78], “[a] contribution to a degree that is substantially more than material must necessarily be substantially greater than one which is trivial” (original emphasis), and further at 202 [82] that “...a material contribution is one which is greater than minimal or, one might say, trivial”. At 204 [93] of Power, Katzmann J further stated that “…it is insufficient that the contribution of the employment be ‘more than trivial’; it had to be substantially more than trivial.”
The current definition in s 5B, which requires the employment to have contributed “to a significant degree” was inserted into the Act by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth). In Power, Katzmann J contrasted this amendment with the previous Compensation (Commonwealth Government Employees) Act 1971 (Cth) which required employment to be “a contributing factor to the disease”. Her Honour stated at [93] that:
There is no room for doubt that the purpose of the 2007 amendments was to strengthen the connection necessary between the employment and the contraction or aggravation of a disease. Including a definition of “significant” as “substantially more than material” makes this abundantly clear. In other words, it is insufficient that the contribution of the employment be “more than trivial”; it had to be substantially more than trivial.
In Comcare v Reardon (2015) 148 ALD 356 (Reardon), Mortimer J agreed with Finkelstein J in Tippett v Australian Postal Corporation (1998) 27 AAR 40, 43-4. Her Honour in Reardon stated at 265 [31]:
Where the “experience” of an injury (including a disease) is increased or intensified, or recurs, there may be an aggravation. The experience of the injury, or the symptoms, are part of the injury. This includes pain. Finkelstein J then made the following observations about the qualification in Beattie [Commonwealth v Beattie (1981) 35 ALR 369]:
This passage draws a very important and perhaps obvious distinction between the case of a worker who has a pre-existing injury that causes the worker to suffer pain whether or not the worker is at work and the case of a worker who has a pre-existing injury and it is the activities at work that cause the worker to suffer pain or to suffer pain more intensely. It is only in the latter case that it can be said that the worker has suffered an aggravation of his or her

pre-existing injury.
In Reardon, Mortimer J further stated, at 365 [35] that “[t]he respondent was correct to accept the distinction between a condition “becoming” worse and being “made” worse by employment as critical for the purposes of s 5B”. Relying on this statement from Reardon, Comcare submitted that the Applicant’s condition happened to become worse at work but that it was not made worse by her employment (Exhibit R1/4-5). Comcare argued that this meant that employment did not contribute to the aggravation of the Applicant’s pre-existing osteoarthrosis to the required “significant degree”.
The Applicant was self-represented and is not a legal practitioner. The Tribunal has therefore endeavoured to summarise her submissions relevant to the degree of causation with reference to her submissions at the hearing, and her written submissions in Exhibits A1 and A3. In summary, the Tribunal understands the Applicant’s position to be that her employment significantly contributed to the Claimed Condition developing because:
(a)If Dr Kelman’s evidence that the osteoarthrosis condition had a gradual onset and gradual progression is accepted, it is difficult to accept that the condition could accelerate so quickly between 2 November 2017 (where an ultrasound and x-ray showed mild to moderate degenerative arthrosis) and 5 December 2017 to the extent that a fracture could result (Exhibit A3/2). In support, the Applicant referred to a bone scan undertaken by Associate Professor Rob Will on 3 April 2020 (Exhibit A2) which reported a “moderate risk”, namely “[a] 15% risk of any osteoporotic fracture and a 3% risk of hip fracture over the next 10 years”. Her submission was that the medical evidence as at 2 November 2017 did not support the risk of a fracture in the foreseeable future (Exhibit A3/2).
(b)She would not have been able to embark and disembark the maritime vessel, climb onto bunk beds on the vessel or otherwise undertake her activities on the vessel if she had any injury at all (transcript/11, 14), particularly when ocean conditions resulted in “an unstable surface and [the vessel] moves according to weather conditions” (Exhibit A1/2).
(c)
The Applicant experienced sudden “excruciating” and “unbelievable” pain on

5 December which she believed indicated the sudden onset of the condition at work (transcript/37).
(d)As noted above in paragraph [18], the Applicant believed that she had not received any treatment for her hip in the past, but stated that she believed that the injection she received on 3 November 2017 was for a back injury she suffered in October 2016 when she stepped down from a ladder for which she underwent physiotherapy (see also certificates from physiotherapist in Exhibit A1 confirming treatment to her “shoulders and cervical spine”, “neck and lower back” and for “shoulder and neck pain”, “neck and mid back stiffness”, and “lower back pain”; transcript/14).
(e)The logistics of the maritime vessel she was deployed to in December 2017 meant that she had to make more trips than usual between decks via numerous stairs. On that trip she was required to wear a uniform and new work boots and stumbled on the stairs which she thought was due to the unfamiliarity with the work boots (A1/4).
In determining whether an ailment or aggravation was contributed to, to a significant degree by an applicant’s employment, the Tribunal may take into account the matters listed in

s 5B(2). Accordingly, the Tribunal notes that:
(a)the Applicant commenced her employment with the Department on 6 June 2000 (T10/32), and so she had been working for the Department for approximately 17 years up until the time of her injury (s 5B(2)(a));
(b)as has already been noted, the Applicant was required to embark and disembark a maritime vessel whereby there was movement due to ocean conditions and was required to climb stairs between decks whilst undertaking her duties (s 5B(2)(b));
(c)
based on the medical evidence before the Tribunal, including the evidence of

Dr Kelman, which is discussed in further detail below, the Applicant had a

pre-disposition to the aggravation by virtue of having pre-existing osteoarthrosis of the right hip (s 5B(2)(c)); and
(d)
there is no evidence of any activities of the Applicant not related to her employment, or other matters affecting the Applicant’s health, that may be relevant to consider

(ss 5B(2)(d) and (e)).
The Tribunal found the Applicant to be a credible witness who gave evidence to the best of her recollection. The Tribunal does not doubt that the Applicant’s belief, that the Claimed Condition was significantly contributed to by her employment, was sincerely held. However, the Applicant has relied upon her own interpretation of the medical evidence, and there is insufficient corroborating evidence, for example a detailed medical report, which sufficiently supports the Applicant’s interpretation. Whilst, collectively, the above factors may appear to the Applicant to lend support to the Claimed Condition being significantly contributed to by her employment, the Tribunal must be guided by the medical evidence that is more directly on point.
The Tribunal notes a letter dated 20 February 2018 from the Applicant’s general practitioner, Dr De Almeida, to Comcare (T18/58-59). This letter repeats the diagnosis and findings of Dr Mukundala that the Applicant’s “osteoarthritis” is secondary to her hip fracture, that “[t]he injury occurred after climbing 120 stairs on board the vessel” and that “[t]he claimed condition could have been caused by extensive climbing of stairs”. However, the letter also states that “[t]here is no history of similar relevant, pre-existing or underlying condition” which appears to contradict the earlier ultrasound and x-ray results which confirmed the presence of mild to moderate degenerative arthrosis in the Applicant’s hip. However, there is minimal detail in this letter as to how Dr De Almeida reached these conclusions, and no information as to the extent to which Dr De Almeida regarded the fracture to have been contributed to by the Applicant’s employment.
The Tribunal prefers the evidence of Dr Kelman, who was able to comprehensively review the Applicant’s medical history, and who has more specialised expertise as a Consultant Orthopaedic Surgeon than a general practitioner such as Dr De Almeida. The Tribunal notes that Dr Mukundala is the specialist Orthopaedic Surgeon who treated the Applicant. However, Dr Kelman was able to provide detailed forensic reports after examining the Applicant and after reviewing the relevant medical evidence and her medical history. He gave evidence at the hearing to explain how he made his findings and reached his diagnosis. Additionally, Dr Kelman’s evidence was the only medical evidence that directly and specifically commented on the degree of contribution of the Applicant’s employment to the Claimed Condition.
Specifically, in his report dated 4 April 2018, Dr Kelman stated his opinion that the Applicant’s osteoporosis condition was pre-existing, that the collapse of the femoral head would have eventually occurred but probably occurred earlier due to the Applicant’s stair climbing (T23/81):
Her condition is pre-existing. This comes about as a result of loss of cartilage of the femoral head which eventually collapses leading to an arthritic situation.
…
There is no doubt that at some stage the femoral head would have collapsed in the natural course of events. The fact that, it occurred during an episode while carrying out… [duties] aboard ship and having to climb stairs frequently may have caused the condition to occur earlier than would normally be expected.
In his supplementary report of 26 April 2019, Dr Kelman explained why the Applicant did not feel pain in her hip immediately prior to and at the start of her deployment. His evidence below also suggests that the natural process of the pathology was the main cause of the collapse of the femoral head in the Applicant’s hip (Exhibit R3/3):
There is documented evidence that Ms Ross began to suffer pain in her hip. A steroid injection was administered approximately one month before her hip became severely painful. Cortisone is a very powerful anti-inflammatory agent and would have relieved her of all symptoms of pain, however has no influence upon the natural progress of the disease.
It is therefore quite acceptable that Ms Ross states that she had no pain in her hip at the commencement of her deployment in November/December 2017. It was during this deployment that the hip became constantly painful. I accept that this would have been accelerated as a result of multiple occasions of walking up and down stairs and also as a result of a minor stumble.
This activity and this event rendered her hip symptomatic at an earlier time. There is no doubt that she would have developed pain despite any of these activities. The description of a stress fracture of the femoral head noted on an MRI scan taken after she had returned to Australia merely indicates a fracture and collapse of the femoral head which occurs in the natural process of the pathology.
In summary therefore, it is my opinion that Ms Ross suffered osteoarthrosis of her right hip as [the] result of an underlying disease process and would have developed irrespective of any other activities she was undertaking.
Dr Kelman further confirmed his opinion that the Applicant suffered from pre-existing osteoarthrosis and that the collapse of the femoral head would have occurred regardless of the activity the Applicant was undertaking. His opinion was that the Applicant’s employment could be afforded a less than five percent contribution to the Claimed Condition (Exhibit R3/6):
There is no doubt that a pre-existing condition existed. Notes have been made of pre-existing complaints regarding this. There is no doubt that at some stage, which would have occurred relatively soon after December 2017, that the femoral head would have collapsed in the natural course of events.
…
It is my opinion that the activities on or about 5 December 2017 rendered a

pre-existing condition symptomatic. The reasons [sic] for this is related to the natural progress of this condition together with the aggravating events, which occurred at the time she was on deployment. It is my opinion that this hip would have become symptomatic in a relatively short time after December 2017 no matter what her activity.
…
The events of the pathology in her hip were about to occur no matter what activity she was undertaking. Empirically I would therefore state that the contribution of the employment she was undertaking at that time contributed less than 5% to the overall outcome.
(Emphasis added.)

In the following exchange during his evidence in chief at the hearing, Dr Kelman was asked about the opinion he gave in the final paragraph reproduced immediately above (in bold for emphasis) (transcript/35-36):
MS SLACK: Now, are you talking about the aggravation there?
DR KELMAN: I’m talking about - yes, I’m talking about the aggravation there. Whatever she was doing on that particular deployment, and she was evidently climbing up and down gangways and stairs for a considerable length of time and very frequently, that that in itself brought about some discomfort. But the inevitable process of arthritis had long since been established and her bones were wearing out, and the events of that particular day would’ve had a very minor effect. That’s possibly brought about the very last bit of cartilage to disappear so that the joint then becomes intractably painful, and therefore the five per cent was an empirical estimate of how much that event contributed to the overall arthritic process in her hip.
MS SLACK:You just said, giving answer to the question there, that it was of very minor effect, so is the tribunal to understand that when you use the percentage of five per cent that you mean to describe that as very minor?
DR KELMAN: Yes, very minor. The activity that contributed to the onset of severe pain and the overall arthritic process was minor.
It is the Tribunal’s opinion that, based on the evidence of Dr Kelman, the Claimed Condition falls short of being contributed to, to a significant degree by her employment with the Commonwealth. Dr Kelman’s opinion was that the Applicant’s hip would have become symptomatic in a relatively short time after December 2017 regardless of her activity, and that even though climbing the stairs may have caused the Claimed Condition to occur earlier, the estimated contribution by the Applicant’s employment was less than 5%, which he agreed was “very minor”.
Such a contribution, in the Tribunal’s opinion, falls short of being substantially greater than one that is trivial (Power). To use the language employed by Mortimer J in Reardon, although the Applicant’s condition became worse at work, the extent to which it was made worse by her employment was minimal and did not reach the level of being significantly contributed to by her employment with the Commonwealth.
CONCLUSION
For the reasons outlined above, the Claimed Condition does not meet the definition of an “injury” pursuant to s 5A(1)(a). This is because, although there was an aggravation of an ailment which occurred during the Applicant’s employment, that aggravation was not contributed to, to a significant degree, by her employment with the Commonwealth. Therefore, Comcare is not liable to pay the Applicant compensation pursuant to s 14(1).
DECISION
The Reviewable Decision dated 23 May 2018 is affirmed.

I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

..........[Sgd]..............................................................
Associate
Dated: 2 November 2020

Date of hearing: 15 July 2020

Applicant: Self-represented

Counsel for the Respondent: Ms K Slack

Representative for the Respondent: Ms D Jones-Bolla

Solicitors for the Respondent: Sparke Helmore Lawyers

Date of hearing:	15 July 2020
Applicant:	Self-represented
Counsel for the Respondent:	Ms K Slack
Representative for the Respondent:	Ms D Jones-Bolla
Solicitors for the Respondent:	Sparke Helmore Lawyers