Singh and Comcare (Compensation)

[2023] AATA 720

Singh and Comcare (Compensation) [2023] AATA 720 (28 March 2023)

Division:GENERAL DIVISION

File Number(s):      2021/1228 and 2021/7716

Re:Sneh Singh

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Senior Member G Lazanas
Dr L Bygrave, Member

Date:28 March 2023

Place:Sydney

The Tribunal affirms the reviewable decisions.

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

Senior Member G Lazanas

CATCHWORDS

COMPENSATION – whether injury or disease – whether ailment – whether either or both of the falls occurring during course of employment aggravated and or accelerated pre-existing osteoarthritis in the hip that was contributed to, to a significant degree by employment – decisions affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 5B, 14

CASES

Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Prain v Comcare (2017) 256 FCR 65
Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253
Vros and Australian Postal Corporation (Compensation) [2021] AATA 79

SECONDARY MATERIALS

Melhorn, MD, J. M., Talmage, MD, J. B., Ackerman III, MD, W.E., Hyman, MD, M.H., AMA Guides to the Evaluation of Diseases and Injury Causation, 2^nd ed., Chicago, Illinois.

REASONS FOR DECISION

Senior Member G Lazanas

Dr L Bygrave, Member

28 March 2023

1. The Applicant, Ms Sneh Singh, is 63 years of age. The Applicant has worked for the Department of Human Services (now Services Australia) since early 1990 in a full-time capacity and, more recently, part-time. The Applicant suffered from osteoarthritis in her right hip and, in July 2022, had surgery in the public health system to treat her condition.

2. The Applicant is seeking review of two decisions made by Comcare (the Reviewable Decisions) pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) in respect of two incidents involving falls as described further below. Broadly, the issues for determination by the Tribunal are whether those falls relevantly contributed to or aggravated her pre-existing osteoarthritis condition.

3. In Proceeding 2021/1228, Comcare decided on 2 March 2021 to affirm a determination made by Comcare on 19 January 2021 that it is not liable to pay compensation under s 14 of the SRC Act in respect of “Osteoarthritis of the [right] hip with a geode in the femoral head” (the First Reviewable Decision).[1] The Applicant had lodged this claim on 17 November 2020. The Applicant claimed that she injured her right hip on 29 July 2016 as a result of tripping over a cord while walking away from her desk at work (the July 2016 Fall).

   [1] Proceeding 2021/1228 T-Doc T39, p 151.

4. In Proceeding 2021/7716, Comcare decided on 11 October 2021 to affirm a determination made by Comcare on 2 September 2021 that it is not liable to pay compensation under s 14 of the SRC Act in respect of “leg pain (right hip and leg) or aggravation thereof” (the Second Reviewable Decision).[2] The Applicant had lodged this claim on 6 July 2021. The Applicant claimed that she had injured her right hip on 18 January 2016 when she fell over at a shopping mall during her work lunch break (the January 2016 Fall).

   [2] Proceeding 2021/7716 T T-Doc T27 p. 106.

5. The Applicant previously made a claim in respect of the July 2016 Fall which was previously accepted by Comcare (the Accepted Condition), about which it is necessary to provide further background. This is because it figured prominently in the Applicant’s submissions as the Applicant’s lead argument was that the Accepted Condition included acceptance by Comcare of liability for an injury to her right hip in relation to the July 2016 Fall. The Applicant had several, further and alternative arguments dependent on our conclusions, which necessitate four different issues for determination by the Tribunal, as set out below.

6. As these reasons will explain, Comcare is not liable to pay the Applicant compensation under the SRC Act as the Tribunal finds the January 2016 Fall and the July 2016 Fall did not aggravate or exacerbate the Applicant’s right hip osteoarthritis condition. It follows that the Reviewable Decisions should be affirmed.

   THE ISSUES FOR DETERMINATION BY THE TRIBUNAL

7. The first issue that arises for determination by the Tribunal is did the Accepted Condition involve any acceptance of liability by Comcare for any condition relating to the Applicant’s right hip?

8. The second issue is does the osteoarthritis of the right hip condition for which the Applicant contends Comcare is liable require the application of the causal test for an “injury (other than a disease)” as set out in s 5A(1)(c) (as the Applicant argued), or the causal test for a “disease” as set out in s 5B(1) of the SRC Act (as the Respondent argued)?

9. The third issue concerns whether there is the requisite causal nexus (depending on the answer to the second issue) between either or both of the falls in January 2016 and July 2016 and the Applicant’s osteoarthritis of the right hip for which the Applicant claims Comcare is liable? 

THE EVIDENCE

1. The evidence before us comprised of written statements and oral evidence of the Applicant, as well as written reports and oral evidence of two medical practitioners, namely, Dr Mark Ridhalgh and Associate Professor Neil McGill, who were both briefed to prepare reports for Comcare. There was also a written medical report of Dr Siri Kannangara in evidence before us, however, he was not able to attend to give oral evidence due to work commitments.

2. In addition, the Respondent had filed T-Documents including Supplementary T-Documents and there were numerous documents produced under summons by, amongst others, various medical centres that the Applicant had attended. Many of the documents before us were helpfully collated as a Tender Bundle prepared by the Respondent. References to documents in our reasons are to the documents in the Tender Bundle (TB) or the T-Documents (T-Doc /Supplementary T-Doc) or Transcript, as indicated. Some of these documents are specific to the respective Proceedings, that is, Proceeding 2021/1228 and Proceeding 2021/7716, as also indicated.

Evidence of Ms Singh

1. The Applicant has worked at Services Australia for the last 32 years in different roles. She had worked full-time but had reduced her work hours following the falls by utilising her accrued personal leave and, more recently, had been working in a part-time capacity. She stated she had taken very few days of sick leave even after she had the January 2016 Fall. She stated she was a conscientious worker and would continue to work and fight through the pain that she experienced, but that she now felt that she was being punished for continuing to work rather than stay home and rest.

2. The Applicant did not challenge the proposition that she may have suffered from osteoarthritis in her right hip before the January 2016 Fall but says she was asymptomatic.[3] The Applicant’s medical records referable to other events that took place in 2014 (namely, suspected hernia) substantiate that the Applicant likely suffered from osteoarthritis in her right hip. As discussed further below, Comcare also relied on the medical opinions of Dr Ridhalgh and Associate Professor McGill, in relation to the fact that the Applicant likely had osteoarthritis in her right hip before the January 2016 Fall.

   [3] Transcript p. 11.

3. The Applicant stated that prior to January 2016, she had no history of any relevant pain except relating to possible hernia, however, no surgery was required. Until the January 2016 Fall, the Applicant led an active lifestyle, including swimming and walking with her children and grandchildren. Following the January 2016 Fall, the Applicant stated she was unable to stand for long periods and experienced intermittent pain.

The January 2016 Fall

1. The Applicant described the January 2016 Fall as involving her falling over on an older gentleman on his walker on an escalator at a shopping centre during her work lunch break. She tore her jeans and grazed her left knee which was bleeding. The employer’s leave records show the Applicant did not have time off work following the January 2016 Fall.

2. At the hearing, the Applicant’s advocate stated to us that Ms Singh recalled suffering from pain in her lower right hip immediately following that fall and that the medical evidence supports that.[4] Her advocate also stated that the Applicant may have described this hip pain to her GP when she reported the incident as pain in her leg and abdomen, and that any confusion was due to English being a second language. The Applicant’s advocate further submitted that the references to “lower leg pain”, “groin pain” and “lower right abdomen pain” should be read as reports that the Applicant was making of pain in her hip.[5]

   [4] Transcript p. 6.

   [5] Transcript p. 7.

3. The Applicant reported the January 2016 Fall to Dr Chitra Sivaramamoorthy (Dr Chitra) at the Emerald Medical Centre on 30 January 2016, approximately two weeks after the fall. Dr Chitra recorded: “Right lower abdominal pain settled. Pain over right hand, left thumb…on exam… Left knee – wound scab”.[6] At a further consultation with Dr Chitra on 1 February 2016, the Applicant reported her right wrist being tender, which prompted an X-ray to be performed on her wrist.[7]  Significantly, there is no record in Dr Chitra’s notes of the Applicant reporting any pain from her right hip or her right leg during the consultations following the January 2016 Fall.

   [6] TB, S1, p. 86.

   [7] TB, S1, p.86

4. As stated above, the Applicant’s advocate submitted to us at the hearing that the Applicant’s descriptions of the pain given to Dr Chitra and, additionally, the reference in her GP’s notes to “right lower abdominal pain settled” should be understood to have been a complaint of pain in and around her right hip. At the hearing the Applicant stated as follows with respect to the pain suffered and the report made following the January 2016 Fall: “I had pain in my wrist, pain on my left. So, I went to the doctor, and I told her what had happened and I had told them about the pain I was having in my wrist and leg… I think I used the word “abdomen” but I just think said “leg and abdomen””.[8] Plainly, the Applicant’s evidence at the hearing is not consistent with the contemporaneous medical records of Dr Chitra nor is it consistent with the Applicant’s written statement filed with the Tribunal on 2 August 2021 where she expressly stated that she first became conscious of leg and groin pain during her trip to India in April and May 2016.[9]

   [8] Transcript p. 19.

   [9] TB, A7, p. 11.

5. In those circumstances, we do not consider the Applicant’s evidence that she felt pain in or around her right hip at or about the time of the January 2016 Fall to be reliable. Furthermore, we accept the explanations provided by Dr Ridhalgh and Associate Professor McGill at the hearing that pain from osteoarthritis in the hip is not referred to the abdomen.[10] Separately we note Dr Ridhalgh also indicated the abdominal pain reported might instead have been a muscular strain.[11]

   [10] Transcript p. 47.

   [11] Transcript p. 47.

6. Between 29 April and 13 May 2016, the Applicant travelled to India. The Applicant stated that when she arrived in India, she had difficulty getting off the plane because of right thigh pain, and she needed a massage every two days while in India to lessen the pain. She said, however, that she did not see a medical practitioner in India. She also reported the thigh pain to have been worse after the flight back to Australia. (This was recorded in connection with a workstation assessment of the Applicant carried out in August 2016).

7. On 24 May 2016, the Applicant consulted a GP at another medical centre to which she went when unable to see Dr Chitra. The GP’s records indicate that the Applicant reported right thigh and leg pain that started around the hip.[12] An X-ray report regarding the Applicant’s right hip dated 27 May 2016 recorded a clinical history of right hip pain radiating to the leg. It also reported that the right hip showed moderate degenerative change, which was later explained at a further consultation with the Applicant on 30 May 2016.

   [12] TB, S5, p. 642.

8. On 16 July 2016, the Applicant consulted Dr Chitra again and her GP’s records indicate that the Applicant’s right hip was tender at the outer gluteal region, and that an X-ray showed moderate degenerative changes.[13] Dr Chitra’s notes record that at a consultation on 23 July 2016, the Applicant reported experiencing pain over her right hip that was worse with movement and had become worse after returning from India.

   [13] TB, S1, pp. 88-89.

9. On 6 July 2021, the Applicant lodged the workers’ compensation claim in relation to the January 2016 Fall. The Applicant explained that she had originally been advised that her fall at a shopping mall was not covered by workers’ compensation and so she had originally reported the incident to the shopping mall only.

The July 2016 Fall

1. On 1 August 2016, the Applicant submitted an incident report which records that she tripped over a computer cord when getting off a chair on 29 July 2016. In relation to the body part affected it was recorded as “LEG”.[14] It was also noted the Applicant had no time off work after this incident although she saw Dr Chitra on the following day, 30 July 2016. Dr Chitra’s notes record that the Applicant said that she was going to be travelling to New York in September 2016 and was concerned about hip pain, which was settling with Mobic (an anti-inflammatory/analgesic medication).[15] However, despite the Applicant’s concern regarding hip pain, there was no reference in Dr Chitra’s notes of the July 2016 Fall, which had occurred the previous day.

   [14] Proceeding 2021/1228 T-Doc T17, p. 64

   [15] TB, S1, pp. 90-91.

2. On 6 August 2016, there was a medical consultation where the Applicant complained of intermittent right hip pain. Dr Chitra’s notes also record that the Applicant reported she had tripped and fallen at work the previous week and reported pain in her right foot in respect of that fall. Dr Chitra also recorded in her notes “on exm (sic) tender over right outer lateral thigh”.[16]

   [16] TB, S1, p. 90.

3. On 9 August 2016, a workstation assessment took place in which the Applicant said she fell at the local shopping mall in her lunch break in January 2016. The Applicant stated she travelled to India from 29 April 2016 to 13 May 2016 and had difficulty getting off the flight due to right thigh pain and the thigh pain was worse on the flight back. She said she saw a GP at which time the pain was in the right hip, thigh and medial lower right leg. She reported that, due to the fall on 29 July 2016, she felt pain in her right hip, thigh and right ankle and she said she had pain in the right hip, thigh, inside right calf and right ankle on the day of the assessment.[17]

   [17] Proceeding 2021/1228 T-Doc T5, p. 10.

4. It follows, that on the basis of the Applicant’s evidence and the independent medical records, it appears the Applicant started experiencing pain in her right thigh and around the hip from late April to mid May 2016 and, by early August 2016, the pain was increasingly on an intermittent basis. This is also partly corroborated in various other records of her employer, including the timeline of events recounting the discussions between a rehabilitation case manager and the Applicant on 2 August 2016.[18]

   [18] Proceeding 2021/ 1228 Supplementary T-Doc ST3, pp. 166-167.

5. In or about June 2017, various medical reports and X-rays confirm that the Applicant had, by this stage, ongoing pain in her right hip and the suggestion of a right total hip replacement was proposed by an orthopaedic surgeon if the pain exacerbated.[19]

   [19] Proceeding 2021/1228 T-Doc T8, p.18.

6. In a compensation assessment report dated 7 March 2018, it was stated the Applicant said her pain was in the calf and ankle and she had not had hip pain since she started swimming in March 2017.[20]

   [20] Proceeding 2021/1228 T-Doc T10, p. 21.

7. In October 2020, another orthopaedic surgeon consulted by the Applicant reported to Dr Chitra that the Applicant needed a total hip replacement and that he had completed the forms for her to be placed on the public hospital waiting list. A further orthopaedic surgeon consulted by the Applicant in November and December 2020, who also arranged an MRI scan of the Applicant, confirmed she had an arthritic hip but no sinister pathology such as avascular necrosis.

8. On 17 November 2020, the Applicant lodged the workers’ compensation claim for the claimed hip condition which she said happened on 29 July 2016 when she tripped over a cord while walking away from her desk.[21]

   [21] Proceeding 2021/1228 T-Doc T16, p. 55.

Medical Evidence

1. Dr Ridhalgh, consultant orthopaedic surgeon, provided two reports dated 7 January 2021 and 10 February 2022. [22] In the first report, Dr Ridhalgh reported that the Applicant gave a relevant history of tripping and falling on her hands and knees in 2016 on an escalator at a shopping mall and did not have any treatment after that. The Applicant has said that after tripping over an electrical cord at work on 29 July 2016 she had right leg pain. She stated to Dr Ridhalph that her GP thought she had a torn muscle and that she remembers limping from then. Dr Ridhalgh noted the X-ray of the Applicant’s pelvis and right hip dated 27 May 2016 showed the Applicant had moderate degenerative change in osteoarthritis of her hip at that time. He said the X-ray showed a decreased centre-edge angle and acetabular dysplasia, the latter being a condition that predisposes people to osteoarthritis of the hip. He diagnosed her condition as “osteoarthritis of the hip with a geode in the femoral head”.[23]

   [22] Proceeding 2021/1228 T-Doc T29 pp. 123 – 131 and TB, R2, pp. 28-35.

   [23] Proceeding 2021/1228 T-Doc T29 p. 128.

2. Dr Ridhalgh considered the osteoarthritis the Applicant had “was present before the [July 2016] fall and the fall has not materially exacerbated the condition”. It was Dr Ridhalgh’s opinion that the Applicant’s “employment has not contributed to a significant degree to her diagnosis”.[24]

   [24] Proceeding 2021/1228 T-Doc T29, p. 129.

3. On 5 November 2021, Dr Kannangara, rheumatologist, provided a report to the Applicant and noted the Applicant had two falls in 2016, and that she hurt her right hip in the one where she tripped on wires at work, and now has “quite severe definitive osteoarthritis of the right hip” and needs surgery.[25] Dr Kannangara stated that “for a person at the age of 55 to get osteoarthritis is uncommon unless she had a fall” and “I almost guarantee that the two falls contributed to early OA of this hip”.[26]

   [25] Proceeding 2021/7716 T-Doc T29, p. 109.

   [26] Proceeding 2021/7716 T-Doc T29, p. 109.

4. In his supplementary report dated 10 February 2022, Dr Ridhalgh reported, after reviewing further medical records and other medical opinions provided, that “It is clear that she has a degeneration of the hip from at least 2014 and also the pain that she may have been feeling in the groin that was ascribed to a hernia may have been related to osteoarthritis of her hip as later in the disease process she describes groin pain.”[27]

   [27] TB, R2, p. 32.

5. Dr Ridhalgh also relevantly stated, as follows:

   ·“it is clear that [the Applicant] has a degeneration of the hip from at least 2014.”

   ·“I do not agree with Dr Kannangara’s report from 2021 that because she had some falls this must be the cause of her hip pain. It is clear that she has early degenerative disease pre-existing either of the falls in 2016.”

   ·“the fall that she had in January 2016 was trivial in the causation of the pathology of her hip. She had a minor fall not requiring much time off work and I do not believe it has materially changed the course of her disease.”

   ·it was “unlikely she had any hip pain after the fall. It is only in retrospect that she has attributed the escalator fall as a cause of her osteoarthritis”. As a result of the January 2016 Fall Dr Ridhalgh considered the Applicant sustained a soft tissue injury to her lower limb and no hip injury. He added: “The hip injury, if any, was minor in nature and responded as an acute exacerbation of a previously arthritic hip” and “I believe that she had a very minor hip injury if any at all and this would have ceased six to eight weeks following the fall.”

   ·she “would have had the same symptoms with or without the escalator fall and the incident on 26 July 2016.”

   ·the Applicant’s condition “would have occurred at or about this stage of her life irrespective of her being employed.”

   ·“the effects of the pre-existing, unrelated, non-work related condition have overtaken the effects of any temporary exacerbation she may have had following these two falls.” 

   ·“I believe Ms Singh has had a longstanding hip complaint. She presented in 2014 to the doctor… where she had an X-ray and her condition was explained to her that she had osteoarthritis of the hip. Since that time, she has had the natural history of a degenerative hip…” [28]

   [28] TB, R2, pp. 32-35.

1. The oral evidence given by Dr Ridhalgh at the hearing was consistent with the above extracts. In relation to the fall in January 2016, Dr Ridhalgh further explained that the way the Applicant described her fall, where she said she fell onto her hands and knees was unlikely to have resulted in her hurting her hip, because in falling in that way, she would have protected the hip.[29]  

   [29] Transcript pp. 54-55.

2. Dr Ridhalgh said that when a person has an arthritic hip and they have a fall, they can have what he termed an “acute exacerbation” of their osteoarthritis. The person would have pain such they might require analgesics and, for example, physiotherapy, but that the pain will generally go away. He explained that episodic pain is also part of the natural history for arthritis.[30] However, any such “acute exacerbation” the Applicant might have suffered in the falls would unlikely have sped up the deterioration of her hip joint, because she “already had an underlying degenerative change. She was on the slippery slope of problems”.[31] Dr Ridhalph explained that the word “acute”, in this context, meant a short period of time, not something that was severe.[32] Thus, Dr Ridhalgh’s concept of a person suffering an “acute exacerbation” of hip osteoarthritis as a result of a fall was a concept of a person experiencing symptoms from their arthritis as a result of the fall, for a short period of time before those symptoms resolved. Dr Ridhalph agreed that if a person suffers a “trauma” they may develop osteoarthritis, but the trauma would have to be significant, such as a dislocation or fracture of the hip.[33]

   [30] Transcript p. 45.

   [31] Transcript p. 45.

   [32] Transcript p. 58.

   [33] Transcript p. 58.

3. Dr Ridhalgh reiterated that the Applicant had an underlying predisposition to osteoarthritis because of acetabular dysplasia and her experience of episodic pain was consistent with the natural history of osteoarthritis such that as time goes on, the intervals between the pain decrease.[34] Dr Ridhalph was of the opinion that the falls did not cause the osteoarthritis but accepted that minor falls could possibly exacerbate it.[35]

   [34] Transcript p. 44.

   [35] Transcript p. 56.

4. Associate Professor McGill, consultant rheumatologist, provided a report dated 3 March 2022 following an examination of the Applicant at the request of Comcare. He stated that his interpretation of the relevant medical consultation notes was that they did not indicate that the Applicant had experienced an exacerbation of symptoms related to her right hip osteoarthritis as a result of the fall on 29 July 2016.[36] He considered the reference to intermittent hip pain in the medical notes on 6 August 2016 strongly confirmed the continuation of the hip pain the Applicant had been experiencing and had reported prior to the July 2016 Fall.

   [36] TB, R5, p. 54.

5. Associate Professor McGill also relevantly stated, as follows:

   ·“there was no right hip injury in [January] 2016.”

   ·“There was no exacerbation of symptoms related to her right hip osteoarthritis as a result of the fall on 29 July 2016. She already had significant right hip related symptoms prior to that fall... The notes recorded soon after the fall did not suggest injury or exacerbation of symptoms related to the right hip.”

   ·Her symptoms have reflected the natural history of hip osteoarthritis.”

   ·“she does not continue to suffer an injury to her right hip (and never did) due to the fall on 29 July 2016.”

   ·The significant pre-existing, non work-related condition is that of right hip osteoarthritis which has progressed in keeping with the natural history of osteoarthritis.”[37]

   [37] TB R5 p 47B, R5, pp. 53-54.

6. At the hearing, Associate Professor McGill explained that it is not uncommon for people suffering from osteoarthritis for their pain to go away and then come back but the underlying process progressively deteriorates. Asked whether the Applicant may have used the wrong description about the area of pain that the Applicant suffered from in the January 2016 Fall, Associate Professor McGill stated that the lower abdomen is a very uncommon referral site for the hip but that he could not exclude the possibility that she was referring to pain in the groin, and the fact that it had settled may have made it more difficult to know exactly where it was.[38] He also acknowledged that people do mistake lower right leg versus lower right limb  and explained that the right lower limb consists of the thigh and leg but the word ‘leg’ is often used to refer to the entire lower limb.[39]

   [38] Transcript p. 70.

   [39] Transcript p. 71.

7. In response to a question about whether the pain the Applicant was suffering was likely the result of an exacerbation of osteoarthritis in her right hip, Associate Professor McGill stated he didn’t think so, as the entry in the medical records of 6 August 2016 was very specific – “pain at the right dorsal foot and posterior right heel” – not just vaguely in the lower limb.[40] Further, in relation to the reference “intermittent right hip pain causing the limping at times”, Associate Professor McGill also stated that he didn’t think that occurred as a result of the July 2016 Fall as the reference appeared “to be a continuation of those hip-related symptoms rather than that they had been exacerbated by something that happened on 29 July.” [41]

   [40] Transcript p. 75.

   [41] Transcript p. 75.

8. Associate Professor McGill added that “if an incident were to cause an exacerbation, then you’d expect it to be almost maximal the day after the incident”.[42] He observed that the falls experienced by the Applicant did not involve any fractures or significant injury, and the medical record that “she was travelling to New York in September and was concerned regarding hip pain which was settling with Mobic” did not sound like she had a flare of hip pain as a result of the fall the day before.[43] Additionally, he noted that the Applicant’s limping started a few months after the January 2016 Fall. In his view, neither fall influenced the symptoms and intermittent pain that the Applicant was already experiencing in her right hip due to osteoarthritis in 2016 and subsequently.[44]

   [42] Transcript p. 75.

   [43] Transcript p. 75.

   [44] Transcript p. 77.

RELEVANT LAW

1. The Applicant’s applications relate to claims for acceptance of liability to pay compensation for an injury under s 14 of the SRC Act. Subsection 14(1) of the SRC Act states:

   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.

2. ‘Injury’ is defined in s 5A(1) of the SRC Act. The relevant part of the definition states:

     (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;

   …

3. ‘Disease’ is defined in s 5B of the SRC Act:

   5B  Definition of disease

   (1)In this Act:

   disease means:

   (a)  an ailment suffered by an employee; or

   (b)  an aggravation of such an ailment;

   that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.

   (2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:

   (a)    the duration of the employment;

   (b)    the nature of, and particular tasks involved in, the employment;

   (c)    any predisposition of the employee to the ailment or aggravation;

   (d)    any activities of the employee not related to the employment;

   (e)    any other matters affecting the employee’s health.

   This subsection does not limit the matters that may be taken into account.

4. Subsection 6(3) of the SRC Act provides that ‘significant degree’ means “a degree that is substantially more than material”.

5. ‘Aggravation’ and ‘ailment’ are defined in s 4(1), as follows:

   aggravation includes acceleration or recurrence.

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

FIRST ISSUE: DID THE ACCEPTED CONDITION INVOLVE ACCEPTANCE OF LIABILITY FOR ANY RIGHT HIP CONDITION?

1. As stated above, it is necessary to provide the factual matrix in relation to the Applicant’s prior Accepted Condition as the Applicant’s lead argument was that the Accepted Condition included acceptance of liability by Comcare for a right hip injury.

2. In February 2018, the Applicant lodged a workers’ compensation claim form, in respect of “leg pain”, as a result of the July 2016 Fall.[45] 

   [45] Proceeding 2021/1228 Supplementary T-Doc ST1, p. 155.

3. In March 2018, a delegate of Comcare made a determination and decided that Comcare was liable under s 14 of the SRC Act, in respect of “Sprains and strains of other specific sites of knee and leg (Right)”, to pay compensation under s 16 of the SRC Act for specified treatments between 29 July 2016 and 14 March 2018. However, from 15 March 2018 the Applicant had no entitlement to compensation under ss 16 or 19 of the SRC Act.[46] The delegate adopted reasons set out in a recommendation made by Allianz which were to the effect that the injury the Applicant had suffered described as “aggravation of right calf strain” had resolved by 15 March 2018 based on a report from Dr Shahzad, an occupational physician, dated 15 March 2018.[47]

   [46] Proceeding 2021/1228 Supplementary T-Doc ST7 p. 195.

   [47] Proceeding 2021/1228 Supplementary T-Doc ST5 p. 176.

4. Dr Shahzad had stated in his report that the Applicant reported that she had a mild pain discomfort in her right calf area, and that the pain in her right hip had settled. Dr Shahzad’s diagnosis was of a right calf strain that had resolved, and he expressed the view that no medical management was recommended.

5. The Applicant contends that the effects of her injury sustained in the July 2016 Fall (claimed to be pain radiating down her leg from her hip) never ceased in the years that followed the Falls until she had her hip replacement in July 2022 and that the reference in Comcare’s determination to “sprains and strains of other specified sites of knee and leg” included pain that was radiating down her leg from her right hip.

6. The Applicant argued that was evidenced by the fact that the New Work Cover Form (that the Respondent’s determination in March 2018 was in response to) was completed by Emerald Medical Centre on 28 February 2018 and, consequently, formed part of the Accepted Condition. The contemporaneous medical notes of Dr Chitra at the Emerald Medical Centre state “req work cover for the incident June 2017”[48] and go on to later say “right hip pain /groin pain radiating down the leg [new line] not as bad as before [new line] COMPLETED THE CERTIFICATE”.[49]

   [48] The reference to ‘June 2017’ was acknowledged by both parties to be an error and should have been a reference to July 2016.

   [49] TB, S1, p 101.

7. The Applicant sought reconsideration of Comcare’s determination and Comcare affirmed it on 24 May 2018. The delegate identified the condition for which liability had been accepted up until 15 March 2018 was “aggravation of right calf strain”.

8. We are strongly of the view that there is no basis for the Applicant’s argument that the Accepted Condition included acceptance of liability for a right hip injury. First, the specific condition for which liability was expressly accepted by Comcare, on its terms, was “aggravation of right calf strain” as stated in the decision and the reasons provided, as well as in the decision following reconsideration. Secondly, that determination was in fact based on the report in which Dr Shahzad concluded that the Applicant had suffered a right calf strain. Thirdly, we see no basis for the Applicant’s contention that the medical records of the Applicant’s GP should inform the basis of the determination. This is particularly so where it is also claimed that references to “leg pain” in the Applicant’s GP’s notes should be taken to mean pain radiating from the hip. Clearly, Comcare has not accepted liability for any hip condition suffered by the Applicant with respect to the two falls in 2016 and we see no interpretation by us which would allow or assist in that regard.

9. In any event, we are not bound to reach the same conclusion as Comcare reached in relation to the Accepted Condition on review of the Reviewable Decisions. In this regard, the decision of the Full Federal Court in Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253 is apt as it was there decided (at [59]) that after Comcare has made a decision as to its liability under s 14 of the SRC Act, later decision-makers can reach different conclusions as regards whether the condition is and was ever a compensable injury under the SRC Act.

SECOND ISSUE: DOES THE OSTEOARTHRITIS OF THE RIGHT HIP CONDITION REQUIRE THE APPLICATION OF THE CAUSAL TEST FOR AN INJURY (OTHER THAN A DISEASE) OR THE CAUSAL TEST FOR A DISEASE?

1. The Applicant argued that the trauma or acute exacerbation of her hip injury that she sustained in the January 2016 Fall and / or the July 2016 Fall was “an aggravation of an injury other than a disease” for the purposes of s 5A(1) of the SRC Act. Therefore, the Applicant argued the causal test in s 5A(1) applied. The Applicant’s argument was that the Applicant’s osteoarthritis became symptomatic and progressed faster than it otherwise would have done because of the January 2016 Fall and/ or the July 2016 Fall.

2. The Applicant relied on the following matters to support her position in relation to the January 2016 Fall:

   ·any osteoarthritic changes prior to January 2016 were minor and she did not experience any discomfort in her right hip at all before then;

   ·the medical evidence in relation to the 2014 events – some two years before the falls in 2016 – relating to pain in her inguinal region was inconclusive (originally thought to be hernia) and no weight should be given to its occurrence or hypothesised relationship with respect to her osteoarthritis condition;

   ·her right hip condition became symptomatic after the January 2016 Fall and there were more frequent medical consultations;

   ·the extent of osteoarthritic changes in her right hip changed from minor to moderate as revealed in the X-ray dated 27 May 2016 and reported in Dr Chitra’s medical records on 16 July 2016;

   ·the consultation notes on 30 January 2016 of her GP, Dr Chitra, with respect to the January 2016 Fall noted, amongst other things “right abdominal pain settled” and that should be taken to be a reference to the area in and around her right hip noting also that Associate Professor McGill under cross-examination did not rule out that that was a possible misdescription;

   ·the consultation notes on 16 July 2016 of her GP noted “recurrence of abdominal pain, bloated, burping” and “right lower leg pain intermittently after the fall” and the latter should be taken to be a reference to pain radiating down her leg from her hip. noting also that Associate Professor McGill conceded under cross-examination that “leg” is used (albeit in error) to by, amongst others, doctors, to mean the entire lower limb;

   ·An X-ray on or about 16 July 2016 noted “moderate degenerative changes on exam [new line] right hip – tender outer gluteal region”. Also, Associate Professor McGill accepted that the fact an X-ray was undertaken suggested the doctor thought there was a problem in that area.  

3. The Applicant relied on the following matters to support her position in relation to the July 2016 Fall:

   ·Dr Ridhalph accepted under cross-examination that the pain she suffered following the July 2016 Fall was likely to have been an acute exacerbation of her right hip osteoarthritic condition;

   ·she required numerous physiotherapy treatments from 1 August 2016;[50]

   ·the opinion of Dr Kannangara who stated that “for a person at the age of 55 to get osteoarthritis is uncommon unless she had a fall. I almost guarantee that the two falls contributed to early OA of this hip…”

   [50] Exhibit A13 – Copies of physiotherapist’s invoices and receipts for payments.

4. Additionally, the Applicant asserted that her degree of osteoarthritic change in her right hip after the January 2016 Fall and/ or the July 2016 Fall did not reflect the natural progression of her pre-existing arthritic condition. However, the Applicant provided no support for this assertion.

5. The relevant legislative provisions including definitions and causal tests that are in issue in these proceedings are as set out above at [45] – [49]. As to the relevant test, as stated above, the Applicant argued that the causal test in s 5A(1) applied as the Applicant suffered an “injury other than a disease”. The Applicant argued that Comcare’s liability to pay compensation was conditional on her incapacity or impairment being “as a result of an injury”. The Applicant also argued that the incapacity or impairment does not have to be caused solely by the injury. As to the latter proposition, the Applicant relied on Vros and Australian Postal Corporation (Compensation) [2021] AATA 79 (Vros) at [12], amongst other cases.[51]

   [51] See Applicant’s Closing Submissions dated 2 December 2022 paragraphs [24]-[25] and footnote 5.

6. Before considering the applicable causal test, we note that s 5A(1) of the SRC Act relevantly refers to whether there was “an injury … arising out of, or in the course of, the employee’s employment or an aggravation of a … injury …  that is an aggravation that arose out of, or in the course of, that employment”, whereas the Applicant started by referring to whether the incapacity or impairment was “as a result of an injury” (see [63] immediately above). We consider the Applicant’s incorrect starting premise explains why its reliance on Vros is also misplaced. In that case, the Tribunal was concerned with the nature of the causal tests in s 19 of the SRC Act (whether a person’s incapacity for work is “as a result of” their injury) and s 24 of the SRC Act (whether a person’s impairment is “as a result of” their injury”). But the inquiries in those sections only arise if it has first been determined, pursuant to s 14 of the SRC Act, that the person has an “injury” (and the related causal tests) within the meaning of ss 5A and 5B of the SRC Act. We now turn to address those relevant sections regarding the threshold issue before turning to the causal tests.

7. In determining whether this case involves an “injury (other than a disease)” (such that s 5A(1)(b) or (c) contains the applicable causal test), as submitted by the Applicant, or whether it is an “ailment” within the meaning of s 4 of the SRC Act (such that s 5B contains the applicable causal test), the issue is whether the condition for which Comcare is alleged to have liability in relation to – osteoarthritis of the right hip – is better characterised as an “ailment” or not. This is because “disease” is relevantly defined to mean an “ailment” suffered by an employee or an aggravation of such an “ailment” that was contributed to, to a significant degree, by the employee’s employment. This is where “ailment” is in turn defined in s 4(1) of the SRC Act to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”.

8. In Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468 at [49]-[50], the majority of the High Court explained the relevant decision-making process, which we are bound to adopt. The first question is whether the evidence amounts to demonstrating that the Applicant suffers something that can be described as an “ailment”, in the sense being (relevantly) a physical ailment, disorder, defect or morbid condition. In Prain v Comcare (2017) 256 FCR 65 the Full Federal Court explained at [74]-[75], that involves considering the “nature and incidents” of the condition.

1. In considering whether the Applicant’s osteoarthritis is properly characterised as an “ailment”, we have taken into account the manner in which Dr Ridhalgh and Associate Professor McGill described the Applicant’s osteoarthritis condition in their evidence. Dr Ridhalgh referred to the condition as a “disease process”[52], a “degenerative condition”[53] and a “degenerative disease”.[54] Associate Professor McGill described osteoarthritis as an “underlying process”.[55] Their evidence is in accordance with the AMA Guides to Evolution of Disease and Injury Causation which relevantly states, under the heading ‘Hip Osteoarthritis’, “[t]he progressive and irreversible nature of this disease leads to an increased prevalence with age”.[56] (emphasis added)

   [52] Transcript p. 52.

   [53] Transcript p. 52.

   [54] Transcript p. 56.

   [55] Transcript p. 69.

   [56] Melhorn, MD, J. M., Talmage, MD, J. B., Ackerman III, MD, W.E., Hyman, MD, M.H., AMA Guides to the Evaluation of Diseases and Injury Causation, 2^nd ed., Chicago, Illinois, p.376.

2. Having regard to the definition of “ailment” and the expert medical evidence before us, particularly, the observation that osteoarthritis is a constitutional and degenerative condition, we are of the view the Applicant’s condition of osteoarthritis was an “ailment”, rather than an “injury (other than a disease)”. It follows, in our view, the causal test in s 5B(1) of the SRC Act is applicable in the present case, namely, “an ailment suffered … or an aggravation of such an ailment, that was contributed to, to a significant degree, by the employee’s employment…” Further, as extracted above, we note “significant degree means a degree that is substantially more than material”.

THIRD ISSUE: IS THE APPLICANT’S RIGHT HIP OSTEOARTHRITIS CAUSALLY RELATED TO THE FALLS IN JANUARY 2016 OR JULY 2016?

1. We are satisfied that the documentary evidence, in particular the medical records (including X-rays) of the Applicant’s GP and other doctors as set out above, demonstrate the Applicant was already suffering from significant pain from her right hip before the January 2016 Fall, albeit the Applicant was asymptomatic. Furthermore, following the July 2016 Fall, the Applicant complained of pain in her ankle or foot and not any new or increased hip pain. We acknowledge that she began experiencing pain in her right thigh and hip in or around April and May 2016 when she visited India, but that was some months after the January 2016 Fall and before the July 2016 Fall.

2. In our view, based on the chronology of the events, including the Applicant’s medical history as well as Applicant’s written statement filed with the Tribunal on 2 August 2021, the Applicant did not suffer an “ailment” due to either of the falls, nor did the falls cause an “aggravation of her ailment, that was contributed to, to a significant degree”, by the falls during the employee’s employment. As stated above, the Applicant accepts that she may have had osteoarthritis in the right hip from 2014. We consider the pain she began experiencing in or around April and May 2016 in her thigh and hip were more likely due to the natural progression of her osteoarthritis condition. We have, in particular, relied on the observational data in the contemporaneous medical records with respect to the Applicant, that is, when she presented to her GP and other doctors at or about the times of the respective falls. See, for example, [17] and [24] above. We are reinforced in our views by the detailed medical evidence of Dr Ridhalph and Associate Professor McGill which we found to be sound and reliable.

3. We have considered the matters referred to by the Applicant as set out at [60] - [62] above with respect to the January and July 2016 Falls, respectively. We also reflected on the opinion of Dr Kannangara as set out at [34] above and decided that, as it was not substantiated nor tested before us, it carries little weight in all the circumstances. Additionally, there was no foundation for the Applicant’s assertion that her degree of osteoarthritic change in her right hip after the January 2016 Fall and/ or the July 2016 Fall did not reflect the natural progression of her pre-existing arthritic condition. Finally, we note that neither Dr Kannangara nor the Applicant engaged with the independent, incontrovertible medical evidence before us that the Applicant had a predisposition to osteoarthritis in her hip because she had acetabular dysplasia (see [32] above). For these reasons, we are of the view that neither of the falls caused an aggravation of the Applicant’s ailment, nor did they contribute to her ailment, to a significant degree. Even if the falls contributed at all to her ailment, it was immaterial in degree.

4. If, contrary to our conclusion, the applicable causal test is that for an “injury (other than a disease)” in s 5A(1)(b) or (c) of the SRC Act (see [67] above), we are satisfied that any aggravation of the Applicant’s right hip osteoarthritis that might have arisen out of or in the course of either or both of the falls, resolved shortly afterwards, and was overtaken by the natural and irreversible progression of the osteoarthritis condition in her right hip. This is because, as Associate Professor McGill and Dr Ridhalgh explained, osteoarthritis is a degenerative condition, which progresses with age. It follows that, as the Applicant already had underlying degenerative change (see [38] above), it was inevitable that her osteoarthritis condition was going to progressively deteriorate.

CONCLUSION

1. We conclude that Comcare is not liable pursuant to s 14 of the SRC Act to pay Ms Singh compensation in respect of “Osteoarthritis of the [right] hip with a geode in the femoral head” (the subject of Proceeding 2021/1228).

2. We also conclude that Comcare is not liable to pay compensation under s 14 of the SRC Act in respect of “leg pain (right hip and leg, or aggravation thereof” (the subject of Proceeding 2021/7716).

DECISION

1. The Tribunal affirms the Reviewable Decisions.

I certify that the preceding 75 (seventy-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member G Lazanas and Dr L Bygrave, Member.

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

Associate

Dated: 28 March 2023

Date(s) of hearing:	11 - 12 October 2022
Date final submissions received:	9 December 2022
Representative for the Applicant:	Mr J Finlay
Counsel for the Respondent:	Ms S Patterson
Solicitors for the Respondent:	Ms K Miller, Sparke Helmore