Sintiris and Telstra Corporation Limited - [2012] AATA 900

[2012] AATA 900
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nos: 2011/0354, 2011/4914 ) & 2011/4970

GENERAL ADMINISTRATIVE DIVISION )
Re: Fontini Sintiris

Applicant

And: Telstra Corporation Limited

Respondent
CORRIGENDUM FOR DECISION
TRIBUNAL: Miss Anne Shanahan, Member
DATE:          21 January 2013
PLACE:        Melbourne
The Tribunal further directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application by deleting 30 November 2011 in sub paragraph 3a. and replacing it with 30 November 2009.
.............................................................
           Member
[2012] AATA 900
ADMINISTRATIVE APPEALS TRIBUNAL                 )
)       Nos:     2011/0354, 2011/4914                   )  & 2011/4970

GENERAL ADMINISTRATIVE DIVISION )
Re: Fontini Sintiris

Applicant
And: Telstra Corporation Limited

Respondent
CORRIGENDUM FOR DECISION
TRIBUNAL: Miss Anne Shanahan, Member
DATE: 3 January 2013
PLACE: Melbourne
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application by deleting 30 November 2001 in sub-paragraph 3a. and replacing it with 30 November 2011.

[sgd].............................................................
Member

[2012] AATA 900

Division GENERAL ADMINISTRATIVE DIVISION

File Numbers 2011/0354, 2011/4914 & 2011/4970

Re Fontini Sintiris

APPLICANT

And Telstra Corporation Limited

RESPONDENT

DECISION

Tribunal
Miss E A Shanahan

Date 19 December 2012

Place Melbourne
The Tribunal sets aside the decisions under review and in substitution decides:
1.That the applicant’s injury, sustained on 25 November 2009, arose from or in the course of her employment by the Respondent in accordance with s 5(1)(c) and s 6(1)(C) of the Safety, Rehabilitation and Compensation Act 1988 (the Act) and as the injury resulted in incapacity for work she is entitled to compensation pursuant to s 14 of the Act.
2.That the Applicant has been incapacitated for work from 30 November 2011 to and at the present date.
3.The Respondent shall pay the Applicant:
a.weekly payments of compensation from 30 November 2001 to and at the present date for all work periods when her actual earnings from Roadside Services and The Age were less than the normal weekly earnings pursuant to s 19 of the Act; and

b.the reasonable costs of medical treatment from 30 November 2009 to and at the present date pursuant to s 16 of the Act.

4.The Respondent shall pay the Applicant’s costs and disbursements in respect of these proceedings pursuant to s 67 of the Act.

[sgd]........................................................................
Miss E A Shanahan
Catchwords
WORKERS COMPENSATION – Knee Injury – arising out of or in the course of employment – injury sustained during an ordinary recess or break – injury occurring in a designated smoking area – limited public access to grounds – entry to buildings by security pass –-at the direction or request of licensee- liability accepted and compensation paid – liability rescinded following review on own motion. Decisions set aside.
Legislation
Safety, Rehabilitation and Compensation Act 1988
Safety, Rehabilitation and Compensation and Other Legislative Amendment Act 2007
Cases
Nevien Badawi v Nexon Asia Pacific Proprietary Limited (2009) NSWCA 342
Dover Navigation Company v Craig (1940) AC 190
Telstra Corporation Limited v Bowden (2012) FCA 576
Weaver v Tredegar Iron Company Limited (1940) AC 955
Learmonth v H & A Bag Company (1944) WCR 131
M Ayling v Wende Bros (WA.WC Board 126/1961; 8 February 1962)
Green v Commonwealth of Australia (1959) 1 DCR 108
Roncevich v Repatriation Commission (2005) HCA 40 (222 CLR 115)
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981)
HCA 26 (147 CLR 297)
Repatriation Commission v Law (1980) 31 ALR 140
Re Barnard and Australian Postal Commission [2008] AATA 507
Re Perera and Comcare [2009] AATA 499
Re Chapman and Comcare [2009] 109 ALD 699 AATA 430
Re Hughes and Comcare [2010] AATA 775
Re Green and Comcare [2011] AATA 639
Hatzimanolis v A.N.I. Corporation Limited (1992) 173 CLR 473
Canute v Comcare (2006)226 CLR 535
Comcare Australia (Defence) v O’Dea (1997) 150 ALR 318
REASONS FOR DECISION
Miss E A Shanahan
19 December 2012
INTRODUCTION

Ms Sintiris injured her left knee on 25 November 2009. The injury was sustained when she tripped on a worn or cracked concrete paver and twisted her knee. At the time of the incident she was approaching the steps leading to the entrance to her workplace at Greenwood Business Park, Building 3, having smoked a cigarette in a designated smoking area during her afternoon 15 minute break, an ordinary recess. The injury was subsequently diagnosed as an anteromedial tear of the lateral meniscus of her left knee. Her employer was Telstra Corporation Limited (Telstra).
Ms Sintiris lodged a claim for compensation with Telstra on 7 December 2009. The insurer Alliance Australia Insurance Limited accepted liability on behalf of Telstra in accordance with s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act). Ms Sintiris subsequently received weekly compensation payments (in accordance with s 19) as she was totally incapacitated for work. Her medical expenses were paid until 28 July 2010; at which time a determination was made ceasing payment for incapacity.
Ms Sintiris tendered her resignation by letter dated 12 July 2010. She advised Telstra that she had commenced full time employment with another company. Ms Sintiris ceased work with the latter company early in September 2010 as she was physically incapable of performing her duties because of left knee pain. She then sought reinstitution of the incapacity payments by Telstra. Following reconsideration, the determination of 28 July 2010 was affirmed on 10 January 2011. This reviewable decision is the subject of application 2011/354, lodged on 28 January 2011.
On 12 September 2011 Telstra determined that it was not presently liable under s 16 and s 19 of the Act to pay compensation for medical treatment and incapacity payments as Ms Sintiris had not provided any additional evidence to support her claim for reinstitution of payments as Telstra had requested. In addition, Telstra had accepted the opinion of Mr E Schutz, general surgeon, in preference to that of Mr P Byrne, the treating orthopaedic surgeon, with respect to the aetiology of her left knee condition, Mr Schutz having made the diagnosis of a temporary strain in a degenerative knee joint. Following a reconsideration as requested by Ms Sintiris, Telstra affirmed the determination on 5 October 2011. This reviewable decision is the subject of application 2011/4970, lodged on 9 November 2011.
On 5 October 2011 Telstra reconsidered on its own motion (under s 62(1)(a) of the Act) the determination of 29 December 2009, when it had accepted liability for Ms Sintiris’s knee injury. This reconsideration led to the decision that as Ms Sintiris’s injury had occurred while you were outside on a break, it therefore did not arise out of or in the course of your employment. Telstra was not and is not liable to pay compensation for the claimed injury. This reviewable decision is the subject of application 2011/4914 lodged on 9 November 2011.
The Tribunal was provided with the documents lodged by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T-Documents) and both parties tendered several documents as detailed in the Appendix to this decision. Ms Sintiris, Dr Helen Sutcliffe, Mr Patrick Byrne, Mr Edward Schutz and Ms Leonie Schnieder gave oral evidence. Ms Sintiris was represented by Mr Mark Carey of counsel instructed by Henry Carus and Associates. Telstra was represented by Mr John Wallace of counsel instructed by Sparke Helmore Lawyers.
ISSUES
There are three issues before the Tribunal.
(i)Did Ms Sintiris suffer an injury or an aggravation of a pre-existing injury as defined in s 5(a) the Act;
(ii)did the injury arise out of or in the course of her employment, given that the incident occurred while Ms Sintiris was outside the building in which she worked, during a 15 minute ordinary recess; and
(iii)in the event that these issues are determined by the Tribunal in her favour, what was Ms Sintiris’s capacity for suitable employment after September 2010.
BACKGROUND TO THE APPLICATION
Ms Sintiris injured her left knee at the age of 15 while playing soccer. In January 2001 an ultrasound of the left knee revealed a Baker’s cyst, which has persisted. On 13 December 2001 she underwent left knee arthroscopy at the Monash Medical Centre. This revealed patello-femoral and lateral compartment osteoarthritis. Ms Sintiris also suffers from obesity, impaired renal function with proteinuria and hypertension secondary to vesico-ureteric reflux which required surgical re-implantation of her ureters when she was nine. She has been noted to have genu valgum, commonly referred to as knock knees, which may predispose her to injury to these joints. Genu valgum may be congenital or acquired as a result of osteoarthritis of the knee joints and can also be secondary to chronic renal impairment.
Ms Sintiris commenced work with Telstra in August 2009 as a customer service officer. She worked in a call centre, advising customers regarding their Telstra services. This involved her sitting at a desk wearing headphones and operating a computer at the same time that she conversed with customers. When she started working at Telstra Ms Sintiris had been shown the two areas designated for employees to smoke: the courtyard facing the Burwood Highway and adjacent to the Building 3 entrance or in a courtyard abutting Building 1. All entry to the Telstra building/s, including from the designated smoking areas, is only possible by use of a Telstra security pass. The grounds surrounding the three buildings, known as Greenwood Business Park, are accessible to the public, although entry to any of the buildings by members of the public is controlled and has to be prearranged with the lessee.
On 25 November 2009, at approximately 3.45pm, Ms Sintiris was informed via her computer that this is your break. She took her break in the designated smoking area adjacent to the entrance to Building 3. Shortly before 4.00pm she and her colleague, Ms Sokea Sum, began their return to Building 3. Miss Sintiris tripped on a broken paver, falling forwards and putting out her hands to break her fall. She described the sensation in her knee as if the bones went in different directions. The heel of her shoe was broken in the incident. Ms Sum helped her to her feet and into the building and reported the fall to Mr Paul Hemsley (Exhibit R2).
She consulted her doctor the next day and did not return to work thereafter. On this occasion her general practitioner recorded that she had been suffering from left knee pain for one week and that there was no history of trauma. He diagnosed a questionable lateral ligament strain. (Exhibit R4, entry 26/11/2009). On 30 November 2009 Ms Sintiris attended her physiotherapist, Mr Stephen McAdam, who obtained a detailed history of the incident and performed a thorough physical examination. He made a provisional diagnosis of a tear of Ms Sintiris left knee lateral meniscus and a ligamentous tear.
On 1 December 2009 Ms Sintiris saw her general practitioner again. On this occasion, the GP obtained a history similar to that of Mr McAdam and agreed that it was likely Ms Sintiris had suffered a left lateral meniscal tear. Ms Sintiris continued with physiotherapy under the direction of Mr McAdam. As there was no improvement with physiotherapy, Mr McAdam recommended that Ms Sintiris undergo MRI scanning of her left knee and wrote to the general practitioner requesting that she be referred for such imaging. On 8 December 2009 Ms Sintiris’s general practitioner referred her to Mr Patrick Byrne, orthopaedic surgeon, for an opinion and to arrange the MRI of the left knee.
Mr Byrne saw Ms Sintiris on 21 December 2009 and arranged for an MRI of the left knee which, according to his reports, revealed a lateral meniscal tear. He advised arthroscopy and resection of the lateral meniscus with debridement of the knee joint. Surgery was planned to take place as soon as workers’ compensation approval to proceed was received. Ms Sintiris underwent an arthroscopic resection of the anterior half of the left lateral meniscus and debridement of all abnormalities in each of the three compartments of the knee on 5 May 2010. The medial meniscus of the left knee was normal. Changes in various areas of the lateral condyle of the left femur were rated as three and three to four, four being the most severe pathological changes.
Following the surgery, Ms Sintiris resumed physiotherapy with Mr McAdam and initially made very slow progress. She appears to have been assiduous in following Mr McAdam’s instructions, which consisted of exercises that he supervised, swimming, cycling on a stationary bicycle and soft tissue massage. By mid-June she was much improved, although she noticed that she developed some pain in the left knee during cold weather. Her symptoms also increased when she failed to perform her exercises, particularly those in the pool, on a daily basis.
On 12 July 2010 Ms Sintiris tendered her resignation to Telstra. Some Telstra services including the call centre activities were relocating to the city and, while she had been told she could have a job, she felt she would not cope with the travel between her home in Rowville and the city, a journey taking approximately one and a half hours each way. She had received an offer of employment from a company known as Roadside Service. Employment with Roadside Service was to involve predominantly home-based work but required her to spend approximately one hour per day on the road visiting building sites. She found the site visits to be difficult as she developed pain in her left knee after walking on uneven ground on the building sites. This development was reflected in the notes of Mr McAdam, who recorded increasing swelling of the left knee becoming evident after walking for more than 20 minutes.
Following her return to work, Ms Sintiris neglected her exercise regime. As the pain and swelling persisted Ms Sintiris saw Mr Byrne again on 6 September 2010. He recommended that she have a further arthroscopy. Ms Sintiris resigned from her position at Roadside Services in order to concentrate on her knee rehabilitation. The pain and the swelling of the left knee lessened as Ms Sintiris increased her level of rehabilitation.
On 2 February 2011 Ms Sintiris underwent a further arthroscopy with lateral release of her patella-femoral reticulum, as Mr Byrne felt this was the site of her continuing pain. Following surgery and physiotherapy, there was steady reduction in the pain and swelling of her left knee. She did however experience pain in the infra‑patellar region of her left knee. Following a review by Mr Byrnes on 14 May, 2011, she was referred to Dr Tim McCarthy, pain physician, as Mr Byrne had felt there was some evidence that Ms Sintiris was developing a regional pain syndrome.
Dr McCarthy agreed there was a degree of early regional pain syndrome and commenced treatment. This ceased following Telstra’s denial of liability on 5 October 2011. Thereafter, Ms Sintiris received Newstart Allowance; and as she could not afford the rental on the property she shared with her partner, she returned to live with her parents. She was assisted by the Commonwealth Rehabilitation Service and a job search company. However, these services found no suitable employment for Ms Sintiris.
Ms Sintiris started seeking employment through the internet site Seek. In July 2012 she obtained a full time position in the call centre of The Age newspaper in Spencer Street. She is driven from her parents’ home to the Narre Warren railway station where she catches the train to Southern Cross station and then walks a short distance to the Age headquarters. Her call centre duties relate to people renewing their subscription to the newspaper and, to a lesser extent, handling complaints. Her employer is fully aware of her limitations and she is able to stand up and move at will as she has a long cord on her headphones. Her work does not involve constant data entry on a computer. She is employed on a twelve month contract.
EVIDENCE BEFORE THE TRIBUNAL
MS SINTIRIS
Ms Sintiris’s evidence has been summarised under BACKGROUND TO THE APPLICATION. She also gave evidence as to her level of activity between 2002 and the injury in November 2009. During this period she had attended a gymnasium up to five times per week, cycled on a stationary bicycle, performed exercises at home, including boxing, and went dancing on Friday and Saturday nights. She owned a horse that was agisted at Lysterfield and she would ride approximately twice a week. In order to attend to or ride her horse she would drive to the perimeter of the property where it was agisted and then walk for approximately one kilometre over uneven paddocks to retrieve her horse. Ms Sintiris said she did all of these activities without incurring pain in her left knee. When challenged in cross-examination that she had attended her GP on occasions for knee pain, she was unable to recollect these attendances.
Since the injury in November 2009, Ms Sintiris says she has been unable to perform any of these activities other than those prescribed by her physiotherapist, although she does do some boxing while seated in a chair.
Ms Sintiris was cross-examined at length by Mr Wallace regarding her description of the mechanism of the injury on 25 November 2009, in view of the description provided by her friend Ms Sum to Morris J Kerrigan Investigators on 7 May 2012. Ms Sintiris disagreed with Ms Sum’s recollection of events with respect to what she was wearing and their relative positions when returning to the office building. Ms Sintiris maintained that she was not wearing sandals but court shoes in accordance with Telstra’s dress policy (Exhibit R2).
Ms Sintiris could not recollect the dates she attended her GP or physiotherapist. Nor did she recall attending her GP between 2002 and 2009 with knee pain. In particular, she did not recall an attendance on 23 September 2009 when she complained of polyarthritis affecting her fingers and both knees. She was also uncertain as to the date she had commenced work with Road Services. The Tribunal notes that these dates are readily available from tendered documents.
MR PATRICK BYRNE
Mr Byrne is the treating orthopaedic surgeon and his reports have been summarised under BACKGROUND TO THE APPLICATION. Mr Byrne provided seven reports on his treatment of Ms Sintiris between December 2009 and May 2011. In all of his reports and in his evidence before the Tribunal, he attributed Ms Sintiris’s left knee condition to the combination of pre-existing osteoarthritis upon which further injury was superimposed on 25 November 2009. He described the injury as a tear to the anteromedial aspect of the left lateral meniscus. On further questioning, he described this area of the lateral meniscus as being shredded. He likened it to the appearance of a horse’s tail. Mr Byrne considered the workplace injury to have aggravated and/or accelerated the degenerative process and necessitated surgical intervention to control Ms Sintiris symptoms.
Mr Byrne reiterated his written opinion that Ms Sintiris would require a total left knee replacement at some time but that given her age this should be postponed for as long as possible, hopefully for 15 to 20 years.

The Tribunal Member asked Mr Byrne if the six-month delay in proceeding to surgery would have had a deleterious effect on the underlying pathology. He thought this was possible. The Tribunal Member also asked whether Ms Sintiris’s infra-patellar pain following the second operation on 2 February 2011 might represent damage to the infrapatellar nerve. While Mr Byrne agreed that damage to the infrapatellar nerve was not uncommon in arthroscopic surgery, he felt that the pain was so diffuse that it did not follow the distribution of the nerve. That is why he contemplated the possibility of a regional pain syndrome and referred Ms Sintiris to Dr McCarthy.
Mr Byrne regarded Ms Sintiris’s genu valgum deformity, which was more pronounced on the left than the right, to have been acquired as a result of the underlying osteoarthritic changes rather than being congenital in nature. (Mr Byrne’s reports are contained in file 2011/0354 at T-documents 10, 12, 16, 17 & 22 and in File 2011/4970 at T‑document 13)
Regrettably, Mr Byrne was not asked to interpret and expand on his operative findings, his operation notes being written in a shorthand which he agreed was peculiar to him.
DR HELEN SUTCLIFFE
Dr Helen Sutcliffe is an occupational health physician who assessed Ms Sintiris on 15 March 2012, reporting on 30 March 2012 to the Applicant’s solicitors (Exhibit A4). In her report she concluded that:
Ms Sintiris sustained aggravation of osteoarthritis of the left knee in all compartments, anterior lateral meniscus tear and some degree of Complex Regional Pain Syndrome as a result of a fall at work in November 2009.
Dr Sutcliffe considered Ms Sintiris had experienced a:
... loss of capacity of the left knee with permanent impairment and disability for activities of daily living.
Dr Sutcliffe expected the impairment would continue and that further surgery, possibly a left knee replacement, would eventuate. In terms of Ms Sintiris’s work capacity, Dr Sutcliffe felt she could work provided she could sit, stand and walk at regular intervals but that prior to resuming employment she required extensive retraining. At the time of this assessment Ms Sintiris was considered able to undertake only limited hours at what Dr Sutcliffe termed protected employment, such as that provided by friends, family or specialist agencies but not in the general employment market.
In her oral evidence to the Tribunal, Dr Sutcliffe confirmed her written opinion and was somewhat surprised to find that Ms Sintiris had recently obtained employment with The Age newspaper. When provided with the details of this employment, Dr Sutcliffe was optimistic that this would be a successful undertaking, although at this early stage she considered it to be more a trial of employment. Ms Sintiris would require three months in her job at the Age newspaper before Dr Sutcliffe would consider it successful.
Dr Sutcliffe was cross-examined at some length regarding the diagnosis of regional pain syndrome. She qualified her suspicion that Ms Sintiris had such a syndrome to the extent that the symptoms present when she assessed her were suggestive of early stage regional pain syndrome, despite there being none of the classical signs of this condition except for allodynia.
MR EDWARD SCHUTZ
Mr Schutz is a general surgeon who assessed Ms Sintiris and provided a report to Sparke Helmore, solicitors, dated 14 June 2011 (File No 2011/4970 – T-Document 9) and a further report dated 26 July 2011, T-Document 11), the latter being to correct errors in the first report and to provide an opinion assuming certain facts.
In the first report Mr Schutz concluded:
... there was no likelihood of an injury or cause of a substantial change to the knee on 25.11.2009. The current knee condition is the result of pre-existing pathology. (T9, p23)
Mr Schutz indicated that he had read the documentation prior to seeing Ms Sintiris and that is perhaps why several errors were made with respect to the timing of incidents, in particular as to when she first saw her doctor after the incident. Mr Schutz was under the impression that Ms Sintiris had been seen by her general practitioner on 25 September 2009 at 1.34pm in the afternoon whereas she was seen on 26 September 2009. He also wrongly reported that following the injury to her left knee while playing soccer, Ms Sintiris had never again engaged in any sporting activities. Mr Schutz stressed the developmental anomaly of genu valgum as being the likely cause of Ms Sintiris’s early development of osteoarthritis, which he believed was present in both knees but only symptomatic on the left side. In his opinion Ms Sintiris retained a capacity for work in a call centre or as a sales person in a newsagency, with restrictions on the work and the ability to change position and move around as required. He thought her prognosis was poor as she would continue to have pain and the knee would suffer further deterioration and may well require a total knee replacement in the future.
In his second report Mr Schutz was asked to assume that she was seen by her practitioner after the fall and that in the fall she suffered a twisting motion to her left knee. Based on the assumption of a twisting component to the fall, he stated that this could have contributed to a lateral meniscus tear. There were errors in this report too. For example, he referred to a left large medial meniscal tear being described by Mr Byrne at his arthroscopy on 5 May 2010. However, despite the corrections and the assumptions that were addressed, Mr Schutz believed that the tripping incident on 25 November 2009 had resulted in a strain to the knee which would have resolved in six to twelve weeks. Beyond that time any ongoing pain was due to pre-existing pathological changes.
In his evidence before the Tribunal, Mr Schutz confirmed that he had based most of his report on the documentary evidence provided; although he had attempted to discuss the contents of that evidence with Ms Sintiris when he took her history. Mr Schutz was adamant that there was no evidence that Ms Sintiris had suffered a tear of her left lateral meniscus given the radiologist who had performed the MRI had reported maceration of the anterior half of her left lateral meniscus of her knee. This was despite Mr Byrne repeatedly referring to the left lateral meniscus pathology as a tear.
A great deal of Mr Schutz’s examination-in-chief and cross-examination related to this difference between maceration and a tear. Mr Schutz said that maceration was part of the osteoarthritis and a degeneration of the meniscus, not an acute change as occurs with a tear. As Mr Byrne’s operative report had been difficult to interpret, the Tribunal Member asked Mr Schutz if he thought the letters LMT in the report, linked in the diagram to the anterior half of the lateral meniscus, meant lateral meniscal tear? Mr Schutz agreed that this was most likely. Eventually, Mr Schutz accepted that there is a lateral meniscus tear noted in the operation notes but added the proviso Yes, with the proviso it’s not an acute tear. (Transcript p129 – 31 July 2012). Despite this line of questioning, Mr Schutz maintained his position that all changes in Ms Sintiris’s left knee were pre‑existing and the incident of 25 November 2009 was merely a strain, which would have resolved in 6 to 12 weeks.
In response to a further question posed by the Tribunal, Mr Schutz agreed that he was not an orthopaedic surgeon, that any training he had in orthopaedics had been limited to short periods in specialist units during his general surgical training and that he had never performed an arthroscopy. However, he believed one could learn as much about a medical condition from reading the literature and seeing other people operate, although not quite as much as you can if you do it yourself.
MS LEONIE SCHNEIDER
Ms Schneider is the managing director of Australian Vocational Link Pty Ltd and, at the request of Sparke Helmore, performed a vocational assessment of Ms Sintiris on 21 March 2012l. In view of the injuries reported by Ms Sintiris, Ms Schneider recommended sedentary-type work and that Ms Sintiris avoid prolonged sitting, standing or walking, driving a car with manual transmission, kneeling, squatting or an excessive amount of climbing stairs and lifting weights greater than five to six kilograms.
Ms Schneider identified suitable employment options as clerical office- based work, customer service or sales, employment in clerical administrative duties in the Australian Public Service and as a call centre operator. While at the time of the assessment Ms Sintiris did not feel she was emotionally ready for work, Ms Schneider thought she could profit from a better balancing of her efforts at rehabilitation and her emotional and social needs. Ms Schneider was very surprised, albeit pleasantly, to be told that Ms Sintiris was now employed as a customer service officer with The Age newspaper.
DOCUMENTARY EVIDENCE
MR KEN MYERS
Mr Myers is a vascular surgeon who saw Ms Sintiris at the request of her legal representatives and provided a report on 8 August 2009 (File No 2011/4970, T‑documents 12 p39‑41). Mr Myers considered Ms Sintiris had suffered:
-Aggravation of pre-existing degenerative osteoarthritis within the lateral compartment of her [left knee] joint and patellofemoral articulation.
-Tear of the left lateral meniscus.
He was of the opinion that her disability resulted from the fall in November 2009, that the degenerative process in her knee would continue and that ultimately she would require a total knee replacement. At the time of his assessment, Mr Myers regarded her capacity for employment to be confined to sedentary office-type activity, provided her continuing knee pain could be controlled with analgesics.
DR GARY DAVISON
Dr Davison is an occupational physician who saw Ms Sintiris at the request of Telstra’s insurer on 7 October 2010. He obtained what appears to be an accurate history of the incident of 25 November 2009, Ms Sintiris’s past medical history with respect to her left knee injuries and a then current history of a constant ache in the left knee with pain worsened by prolonged standing or walking and associated intermittent swelling of the knee once or twice per week. He noted that following her soccer injury at the age of 15, she had not indulged in any further sport but had attended a gymnasium on a regular basis and at the time of consultation was undergoing hydrotherapy three times per week and exercising as directed.
Dr Davison conducted a physical examination of Ms Sintiris. He noted obvious swelling and deformity of the knee, the latter being due to genu valgum which was more pronounced on the left where the angle of valgus deformity was 20^ocompared to the right were it measured 10^o. He also detected 5cm of muscle wasting in the left lower thigh. On palpation of the left knee, he elicited joint tenderness along the joint line. Crepitus was present over the patellofemoral articulation and flexion of the knee was limited to 90^owith the loss of extension of 10^o.
Dr Davison’s opinion was that Ms Sintiris had suffered an aggravation of pre‑existing degenerative disease in her left knee, with a tear of the lateral meniscus. In his opinion the resection of the lateral meniscus altered the mechanics of the joint which in turn would lead to further aggravation of the underlying condition.
Despite a guarded prognosis, Dr Davison considered Ms Sintiris had capacity to undertake call centre duties with restrictions. The restrictions he advised were:
Avoidprolonged standing or excessive walking;
Avoid squatting or kneeling;
Avoid use of stairs;
Vary posture regularly and at will;
Sedentary office-based employment;
Graduated hours of work commencing at the rate of four hours per day per week.
He too was of the opinion that Ms Sintiris would ultimately require knee replacement but in the immediate future she would benefit from losing a substantial amount of weight.
THE MEDICAL RECORDS OF DANDENONG MEDICAL CENTRE RELATING TO MS SINTIRIS
Some of the entries in this record have been referred to under BACKGROUND TO THE APPLICATION. The records cover a period from 29 December 2000 to 21 February 2011. Between 29 December 2000 and 26 November 2009 Ms Sintiris consulted a general practitioner at the clinic about knee joint pain on four occasions. The first two occasions (23 January 2001 and 15 May 2002) related to the injury she sustained playing soccer and the period following her arthroscopic surgery at Monash Medical Centre in late 2001. The third occasion was on 27 July 2003. The notes mention a swollen knee, without any reference to whether it was the right or left knee. On the fourth occasion, 28 September 2009, Ms Sintiris sought treatment for finger pains and bilateral knee pains of several days duration. The entry states no history of trauma. Physical examination revealed mild knee swelling of both the right and left knees but no swelling of the finger joints. A diagnosis of ? arthritic pains was made and Brufen was prescribed to be taken for a few days only, given Ms Sintiris’s chronic renal impairment.
Following the documented fall on 25 November 2009, Ms Sintiris sought medical treatment the following day and was seen at the clinic on the afternoon of 26 November 2009. The history recorded is of left knee pain of one week’s duration with no history of trauma. Physical examination revealed a slight swelling of the left knee joint and tenderness over the lateral aspect of the joint. The GP noted that squatting increased the pain significantly but she could weight-bear. The GP recommended rest. The details of this entry are in contrast to those of Mr McAdam, the physiotherapist, who saw Ms Sintiris on 30 November 2009 and took an extensive history and performed an appropriate physical examination.
The same doctor who saw Ms Sintiris on 26 November 2009 saw her again on 1 December 2009. On this occasion he obtained a fuller history consistent with that given to Mr McAdam and performed a physical examination with findings similar to those of Mr McAdam. He prescribed continuing physiotherapy and arranged a further review, particularly in regard to the need for an MRI.
MR STEPHEN McADAM
Mr McAdam is the treating physiotherapist who saw Ms Sintiris on a regular basis from 13 November 2009 to 2 March 2011. His clinical records are detailed in terms of history and physical examination and the treatment he administered in the form of physiotherapy. His salient findings are dealt with under BACKGROUND TO THE APPLICATION.
THE REPORT OF MAURICE J KERRIGAN & ASSOCIATES, INVESTIGATORS (EXHIBIT R2)
Maurice J Kerrigan & Associates was instructed by Sparke Helmore to inspect the site of Ms Sintiris’s injury of 25 November 2009, and to make relevant inquiries. In its report dated 11 May 2012, it provided the results of the inspection of the accident scene and an interview with Ms Sum. It also made telephone enquiries of the property manager, Mr Jonathan Lumsden. Mr Hemsley was no longer employed by Telstra and was not available for interview. The report noted that 12 new concrete pavers had been laid in the courtyard area in question and these had been replaced between December 2009 and January 2010. Photographs of these new pavers were provided.
Mr Lumsden, who declined to provide a signed statement, advised that to his knowledge there had been no changes to the scope of Telstra’s leased premises since the incident of 2009. He confirmed that the courtyard area was a common shared area with the public and other building occupants and that Telstra did not have any practical control over the area.
The investigator confirmed that Ms Sintiris was required to take a morning break, a lunch break and an afternoon break during the course of a normal working day.
Ms Sum’s statement has been considered under BACKGROUND TO THE APPLICATION. To her knowledge the only people who used the courtyard apart from Telstra employees were people making deliveries. She had estimated the distance from the building entry steps to where she and Ms Sintiris sat smoking at 6 metres. She herself used the courtyard to smoke and to access Telstra’ s Bigpond offices in Building 1 which was situated on the Station Street boundary ie the eastern boundary, of the Business Park (Exhibit R2). Ms Sum had not noticed the cracked paver prior to Ms Sintiris’s injury. In her experience, the lessor rapidly attended to the repair of any damage or faults once they were reported.
Maurice J Kerrigan and Associates measured various dimensions of the courtyard, its distance from the stairs at the entrance to Building 3 and provided aerial views of the site and the courtyard.
They also investigated public access to the Business Park, which was via internal roads to the on-site car parks or by walking across the grassed area fronting the Burwood Highway. Members of the public could not access the courtyard site of Ms Sintiris’s accident through any of the buildings unless invited by a tenant. (Report of 3 July 2012)
TELSTRA’S WORKPLACE DIRECTORY FOR ITS EMPLOYEES
This 21 page document (File No 2011/4914, T-documents 9) is presumably provided to all new employees. It contains details regarding the workplace situated at 301 Burwood Highway, Burwood. The relevant contents are that access to the building and the floor on which each individual works is by a Telstra access card only. Visitors to the building must be ... inducted on emergency procedures, signed in, issued with a visitor’s badge and remain under the effective control of their host for the duration of their visit. (p99).
At page 104 of this document, it states:
... There is a no-smoking policy implemented in all undercover car parks including basement car parking areas of all buildings and no smoking within 10 metres of all building entrances & car parking entrances.
Staff are asked to dispose of cigarette butts and cigarette packets in the bins provided
Smoke bins have been installed throughout the park.
THE ORIGINAL DEED OF LEASE, RENEWALS AND VARIATIONS OF LEASE AND DEED OF RECTIFICATION RELATING TO 301 BURWOOD HIGHWAY, BURWOOD
The original lease was between Contar Pty Ltd and Pacific Access Pty Ltd (a subsidiary of Telstra) for 12 years, starting on 1 January 1992 and expiring on 31 December 2004. The lease covered the whole of Building 3, being the ground, first and second floors plus two storage areas in the basement of that building. During the course of this lease Pacific Access Pty Ltd.’s name was changed to Sensis Pty Ltd.
On 24 November 2004 the original lease was varied and renewed for a further term of six years, commencing 1 January 2004 and ending on 31 December 2009, the former tenant assigning the original lease to Telstra Corporation Limited (PT4, p25 – File No 2011/4914).
The terms of the original lease which are relevant to the matter before the Tribunal are:
9.1 which vests risk to the lessee for:
... all claims and demands of every kind resulting from any accident damage death injury or loss occurring in the Premises or on the Land excluding those resulting from the negligence of the Lessor.
and under the THIRD SCHEDULE entitled RULES AND REGULATIONS OF THE BUILDING (p87)
18. Smoking in Common Areas
The Lessee shall not permit or allow any employee servant or agent of the Lessee to smoke immediately outside the front doors of the Building. The Lessee shall provide proper receptacles for the disposal of refuse by smokers in the Building.
On 25 August 2009 Telstra entered into a Deed of Renewal and Variation of Lease with the landlord, now Burwood Highway JV Pty Ltd. Telstra had requested that the landlord grant an extension of its lease and renewal of the original lease of the premises. In this Deed the premises referred to were part of Level 1 of Building 1; Level 2 of Building 1 and part of the ground floor of Building 1. The car parking areas were also included.

The variation in this lease, which was to take effect on 1 January 2010 for a period of three (3) years, was the deletion of the first schedule to the original lease which referred to the whole of Building 3 and its replacement with the first schedule signed on 25 August 2009 which differs only in its description of Building 3 as delineated in the accompanying plans. A DEED OF RECTIFICATION was made on 29 October 2010, in relation to Building 3, at Greenwood Business Park but relates only to the proviso that in the event of the lessee not removing, carrying away their Fixtures prior to the expiration of the Term, these Fixtures would become the property of the Lessor to deal with as it saw fit.
RELEVANT LEGISLATION
Section 4 of the Act defines place of work.
place of work, in relation to an employee, includes any place at which the employee is required to attend for the purpose of carrying out the duties of his or her employment.
Section 5(a) defines injury:
(1) In this Act:
injury means:
...
(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;
Section 6 of the Act expands on the concept of whether an injury can be termed as arising out of or in the course of employment and states:
(1)Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained:
...
(b)while the employee was at the employee’s place of work, for the purposes of that employment, or was temporarily absent from that place during an ordinary recess in that employment; or
(c)while the employee was temporarily absent from the employee’s place of work undertaking an activity:
(i) associated with the employee’s employment; or
(ii) at the direction or request of the Commonwealth or a licensee; or ...
Liability for injury sustained during travel to and from the employee’s place of residence and their place of work is specifically excluded.
Where an injury arises out of or in the course of employment, s 14 provides for compensation for such injuries.
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.
Section 16 provides for the payment of compensation for medical expenses.
16 Compensation in respect of medical expenses etc.
(1)Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
(2)Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.
...
(6)Subject to subsection (7), if:
(a)compensation in respect of the cost of medical treatment is payable; and
(b)the employee reasonably incurs expenditure in doing either or both of the following:
(i) making a necessary journey for the purpose of obtaining that medical treatment;
(ii) remaining, for the purpose of obtaining that medical treatment, at a place to which the employee has made a journey for that purpose;
Comcare is liable to pay compensation to the employee: ...
Section 19 deals with injuries which result in incapacity.
19 Compensation for injuries resulting in incapacity
(1)This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
(2)Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:
NWE - AE
where:
AE is the greater of the following amounts:
(a)the amount per week (if any) that the employee is able to earn in suitable employment;
(b)the amount per week (if any) that the employee earns from any employment (including self‑employment) that is undertaken by the employee during that week.
NWE is the amount of the employee’s normal weekly earnings.
Subsection 19(2)(a) provides the rate of compensation payment.
SUBMISSIONS
Counsel for both parties sought and received leave to make written submissions.
THE APPLICANT
Mr Carey submitted that Ms Sintiris’s knee condition was an injury as defined in s 5A of the Act and had been correctly designated a left lateral meniscal tear by her treating surgeon Mr Byrne. It was not, as diagnosed by Mr Schutz, a temporary aggravation of pre-existing osteoarthritis. He acknowledged the past history of left knee injury necessitating arthroscopy in 2001 but contended that following her recovery from surgery, Ms Sintiris had an active social and sporting life without left knee pain, until 25 November 2009. Ms Sintiris’s evidence on this point was supported by the statement of her partner Andrew Kouzmenko (Exhibit A1), Mr Carey submitted that the single clinical record of 28 September 2009 which referred to multiple joint pains (polyarthritis), with no subsequent entries, suggested no ongoing symptoms.
Mr Carey contended that the Tribunal should be cautious in accepting the opinion of Mr Schutz, given the errors in his reports. He contended that an inference could be drawn that Mr Schutz had prejudged the facts, as he had admitted that he had relied on the documentation provided by the respondent and read prior to seeing Ms Sintiris. Mr Schutz had rejected any suggestion that Ms Sintiris’s fall had given rise to a twisting of her left knee, despite contemporaneous records to that effect in the notes of the general practitioner, the physiotherapist and Mr Byrne. Mr Carey contrasted Mr Schutz’s opinion, upon which the respondent had relied to stop compensation payments as of 28 July 2010, with those of Mr Byrne and Associate Professor K Myers, who were of the opinion that the incident of 25 November 2009 had caused a lateral meniscal tear in the left knee, resulting in significant disability and incapacity.
Mr Carey submitted that the first question to be addressed by the Tribunal must be whether the injury arose out of or in the course of employment as provided in s 5A of the Act. This question had not been addressed in the Tribunal decisions relied upon by the respondent namely, Re Barnard and Australian Postal Commission [2008] AATA 507, Re Perera and Comcare [2009] AATA 499, Re Chapman and Comcare [2009] 109 ALD 699 AATA 430, Re Hughes and Comcare [2010] AATA 775 and Re Green and Comcare [2011] AATA 639. All of those cases dealt with determining the place of work or employment in accordance with s 6 of the Act and were decided before the Federal Court decision in Telstra Corporation Limited v Bowden (2012) FCA 576 of 4 June 2012. In this latter decision Murphy J had discussed the phrase arising out of or in the course of employment at length.
ARISING OUT OF EMPLOYMENT
Mr Carey cited the decision of Murphy J in detail. His Honour had considered decisions dating from the 1920s to the present, grouping them into locality cases, special danger cases, entry and exit from employment cases and another group, all of which he said showed the broad operation of the “arising out of employment” test. (paragraph 67) Based on this discussion, Mr Carey submitted that an injury arises out of employment if it occurs when the employees’ duties take them to a particular location which turns out to be a dangerous spot and an accident occurs. It is not a requirement that the employee be at a particular spot, as a consequence of some special duty to be at that place.
Mr Carey submitted that Ms Sintiris had a duty to follow Telstra’s instructions as to where she could smoke during a break. Those instructions were incorporated in Telstra’s Burwood - My Workplace Directory. In following her employer’s instructions, Ms Sintiris had suffered injury to her knee when she tripped on a broken paver. That is, the instruction brought Ms Sintiris to a place of danger sufficient to establish liability.
IN THE COURSE OF EMPLOYMENT
Mr Carey addressed the case law relating to the second limb of s 5A(b), He referred to Murphy J’s consideration of the case law in Telstra v Bowden, in which many of the older authorities cited were decided at the time when both a causal and temporal connection was required (arising out of and in the course of employment) and in particular, the so called entry and exit cases, Weaver v Tredegar Iron & Coal Co Limited [1940] AC 955, John Stewart & Son(1912) Ltd v Longhurst [1917] AC 249 and Northumbrian Shipping Company Limited v McCullum (1932) 48 TLR 568. In Weaver Lord Atkin said at 966 that:
... There can be no doubt that the course of employment cannot be limited to the time or place of the specific work which the workman is employed to do. It does not necessarily end when the down tools signal is given, or when the actual workshop where he is working is left. In other words the employment may run on its course by its own momentum beyond the actual stopping place. There may be some reasonable extension in both time and space, ...
and in the same case Lord Romer held at 983 that:
... it must, in my opinion, be taken to have settled by the authority of this House that, after a workman has finished his day’s work and starts out on his way home, his employment continues while he is traversing the premises on which he has been working and any private means of access thereto which he is only entitled to use by reason of his status as a workman, but that, ... his employment ceases when he reaches a place to which the public have a right of access such as the public street.
In John Stewart & Son, Lord Findlay LC at 253 held:
...
Actual ownership or control by the employer of the spot where the accident occurred is not essential. The workman comes there on his way to and from his work, and he may be regarded as in the course of his employment while passing through the dock or other open space to and from the spot where his work actually lies. Such passage is within the contemplation of both parties to the contract as necessarily incidental to it. ...
Based on these decisions Mr Carey contended that while entrance and exit would not encompass a public highway or free public access to a site, a different situation existed where public access was by licence in order to allow tenants to conduct business from shared premises with common areas, as in the present case. In support of this contention he referred to the decision in Learmonth v H & A Bag Company [1944] WCR 131, where Ms Learmonth was injured while leaving her employer’s premises to buy her lunch, her workplace being in a multi-storied building where her employer leased only the second floor. In Learmonth, Lamond J said at 133:
...
In considering the above cases, it appears to me that the broad distinction drawn is one between a worker using a means of ingress or egress available to him only by virtue of his employment, as distinct from a means of ingress or egress which is available to the public “at large” or “a place of which the public have a right of access such as the public street.” It does not seem that the worker’s right would be cut down merely because, as undoubtedly would be the case, a limited number of members of the public also used the same means of ingress or egress. ...
Mr Carey argued that it was highly significant that only Telstra employees could enter Building 3 at Greenwood Office Park (Tribunal Note: at various times referred to as Burwood Park and Greenwood Business Park) by use of an electronic security pass and members of the public could only enter with pre-arranged permission of Telstra and under escort. In addition, Ms Sintiris had fallen within 10 metres of the door of Building 3, leased solely by Telstra.
Mr Carey also referred to a term of the lease which states:
The Lessee and the persons authorized by the Lessee may use the Common Areas in common with the Lessor and other persons authorized by the Lessor for the purposes for which the Common Areas were designed and intended to be used, subject to the terms conditions and covenants contained in this Lease.
Mr Carey cited the decision in M Ayling v Wende Bros, a decision of the Western Australian Workers Compensation Board, (126/1961: 8^th February, 1962). The Board found that the Applicant’s injury, which had occurred in a fall on a stairway in a multi‑tenanted building, was compensable as the stairway was not in the same position as the arcade outside, the stairway being in private property and not open to the public at large. It was considered open to the Applicant merely by reason of her employment. Mr Carey also cited a similar case, Grech v Commonwealth of Australia (1959) 1 DCR 108 in which the Applicant had suffered injury as a result of a fall on a stairway, again in a multi-tenanted building and where liability was found by Holt, DCJ as the Applicant had not disentangled herself from her employment, she being entitled to use the steps during the lunch hour.
Mr Carey contended that Ms Sintiris, likewise, had not disentangled herself from her Telstra employment, as it was in the contemplation of the employer and the employee that she would have gone to the courtyard in her break to smoke a cigarette, given the employer’s policy concerning smoking.
MS SINTIRIS’S INCAPACITATION AND ITS DURATION
Mr Carey contended that Ms Sintiris had been continually incapacitated for work since the injury of 25 November 2009; that she would not have been able to resume work with Telstra once it relocated in the CBD given her symptomatology; and that no offer of suitable duties had ever been made by Telstra. While Miss Sintiris had obtained employment herself with Roadside Services, this had proved to be beyond her capacity and she was forced to resign after approximately six (6) weeks. While she had recently obtained work in a call centre at The Age newspaper, this job, despite the opinion of Ms Leonie Schneider, placed less of a physical demand on Ms Sintiris’s knee. In addition, Dr Helen Sutcliffe’s opinion was that this particular job with The Age should be regarded as a trial of work rather than permanent employment.
The Applicant sought orders that the reviewable decision of 10 January 2011 and those of 5 October 2011 be set aside and in substitution the Tribunal find that:
·Ms Sintiris’s injury to her left knee arose out of or in the course of her employment which entitled her to compensation pursuant to s 14 of the Act;
·the resulting incapacity which continued to the present date attracted weekly payments of compensation for all periods from 28 July 2010 to the present date and at the present date when the Applicant’s actual earnings from Roadside Services and the Age were less than the normal weekly earnings pursuant to s 19 of the Act; and
·that reasonable costs of medical treatment for injury and the payment of reasonable costs of medical treatment the period 12 September 2011 to the present date pursuant to s 16 of the Act.
In addition the Applicant sought an order for the payment of the Applicant’s costs and disbursements in respect to the proceedings.
THE RESPONDENT
Mr Wallace challenged some of the evidence given by Ms Sintiris, particularly as to whether she was asymptomatic between 2002 and the injury in 2011. He contended that she had attended her general practitioner on 26 November 2009, with pain and swelling of her left knee of one (1) week’s duration and that there was no history of trauma; and that she had redeveloped knee pain when seen in September 2011. He contended that her failure to tell various experts, for example, Dr Davison, of her pre-existing symptoms had coloured their opinions. Mr Wallace argued that Ms Sintiris’s evidence regarding her employment with Roadside Services had been inaccurate, there being evidence that she had commenced work with Roadside Services on 5 July 2010 prior to her resignation from Telstra on 12 July 2010.
Mr Wallace contended that Ms Sintiris had the capacity to perform a range of employment as assessed by Ms Schneider, based on the history that Ms Sintiris had given at this interview. Ms Schneider had also observed that Ms Sintiris was able to sit quite comfortably for over three (3) hours during the interview, despite her claim that she could not sit for more than 20 to 30 minutes without needing to move.
Mr Wallace’s main submission was that it had been Parliament’s clear intention in passing the Safety, Rehabilitation and Compensation and Other Legislative Amendment Act 2007 (the Amending Act) to remove an entitlement to compensation in respect of an injury suffered by an employee.
Section 6(1)(b) of the Act states as follows:
(b)while the employee was at the employee’s place of work, including during an ordinary recess, for the purposes of that employment; or
The phrase ... or was temporarily absent ... during an ordinary recess having been deleted in the amending Act
This was evident despite the prefatory words in s 6 which state that:
(1)Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained:
...
Mr Wallace referred to the Explanatory Memoranda to the Amendment Act which in reference to Recess breaks states:
the objective is to limit employers’ exposure to liability for employees’ injuries sustained during journey and recess breaks referred to above, in circumstances where there is a lack of employer control.
Given the objective of the Amending Act, Mr Wallace contended that the removal of the words whilst temporary absent from the Act in respect of an ordinary recess was an acknowledgement of Parliament’s recognition that during such temporary absences from work the employer had no direct control of the employee. Thus on the facts of this case compensation was not payable as Ms Sintiris was temporarily absent from her workplace during an ordinary recess being several meters from the point of entrance to the workplace and in a place to which the public had access and over which the Respondent had no control.
ARISING OUT OF EMPLOYMENT
Mr Wallace accepted that it was uncontroversial that arising out of employment connotes a causal relationship. He cited the High Court decision in Roncevich v Repatriation Commission [2005] HCA 40 where at paragraph 23 in the majority decision it was stated:
... As Dixon J said in the passage from Henderson cited by Heerey J in the Full Court, whether an event arises in the course of an activity, or as here, out of “an activity”, depends upon such matters as the nature of the person’s employment, the circumstances in which it is undertaken, and what, in consequence, the person is required or expected to do to carry out the actual duties. The connexion must however be a causal and not merely a temporal one. ....
Mr Wallace submitted that Ms Sintiris’s actual duties did not require her to leave her workplace temporarily during her afternoon break. Tearoom facilities were provided within the workplace but under the terms of the building lease smoking within the workplace was not permitted. As Ms Sintiris wished to smoke she was required to leave the building but was not directed or required to smoke cigarettes in any particular place. She was however, prohibited from smoking within 10 metres of the building.
IN THE COURSE OF EMPLOYMENT

Mr Wallace contended that the Applicant’s case was that Ms Sintiris was injured in the course of employment as she was effecting ingress to her work area and the site of the fall was not a public area or thoroughfare. He submitted that in fact the place of the fall was a public area in the sense that it was accessible to members of the public, including other tenants of the complex. In addition, her break had not finished until such time as she actually resumed her duties or at the least reached the steps leading to the entrance to Building 3. As she was in between two discrete periods of work she was not in the course of her employment.
Mr Wallace distinguished the decision in Weaver, on which the applicant had relied, as, in Weaver the worker was injured in a place secured by his employer for use by employees and was not accessible to members of the public. In Ms Sintiris’s case Telstra had no control over the area at which the fall occurred.
Mr Wallace cited the decision of Toohey J in Hatzimanolis v A.N.I. Corporation Limited [1992] 173 CLR 473 where His Honour said:
It is true that the words “in order to carry out his duties” have an air of unreality in cases where a worker is injured “in an interval when labour is suspended” ... However, if the worker is then doing something which he or she is required or expected to do by the employer, the connection with the performance of duties will usually be apparent. If the worker is doing something which he or she is merely authorised to do, any connection with the performance of duties may be tenuous. The connection may be no more than that the employer has authorised what the worker is doing in the interval as part of good industrial relations between the parties. Nevertheless, I would retain the words “in order to carry out his duties”, whatever their imperfections. To eliminate them, without substituting something in their place, tends to remove any connection with the employment. This is particularly so if the terminology “required, expected or authorized” is broadened to include ‘allowed’ or ‘permitted’.
CESSATION OF LIABILITY
Mr Wallace accepted that it was probable that Ms Sintiris’s fall aggravated a pre-existing meniscal injury but contended that she had recovered by the time she started work with Roadside Services and before she resigned from Telstra. He submitted that the second surgical procedure of February 2011 had been for the pre-existing degenerative changes, particularly those in the patellofemoral joint. The Respondent relied on the evidence of Mr Schutz as to the indication for the second operation. In light of this submission, the Applicant was not incapacitated for work between 28 July 2010 and 2 February 2011 as the result of the injury nor was she incapacitated from 12 September 2011 to the present date and thus not entitled to receive compensation under the Act. In the alternative, Mr Wallace contended if Ms Sintiris continued to suffer from the effects of the injury she had/has the capacity to earn the equivalent of normal weekly earnings in both her employment with Roadside Services and the Age newspaper and thus does not attract incapacity payments as provided by s 19 of the Act.
SUBMISSIONS IN RESPONSE
THE APPLICANT
Mr Carey submitted that the Respondent’s interpretation of the 2007 amendments to the Act was incorrect in light of the prefaratory clause in s 6(1). As to the issue of control by the employer, Mr Carey contended that this related to the activities of the employee not to the place of injury and the case law clearly accepted that the satisfaction of personal wants were proper and expected activity that would arise out of and in the course of employment. In Roncevich the High Court, accepting the argument of Heerey J in the Full Court of the Federal Court decision in Roncevich, favoured a broad construction of the similarly worded arose out of or was attributable to in s 70(5) of the Veterans’ Entitlement Act 1986.
Mr Carey argued that Miss Sintiris had been obliged to follow the employer’s direction regarding smoking and in so doing had been taken to a place of danger. The entry and exit cases he relied on were applicable where injury does not occur in the course of performing the employee’s actual duties and have extended liability to encompass exit and entry to the place of work.
THE RESPONDENT
Mr Wallace submitted that the requirement for Telstra employees to use a security pass to access Building 3 of the complex demonstrated the point at which Ms Sintiris could be said to be making ingress to her place of work. However, the Respondent would accept that the line of ingress should be extended to include the stairs connecting the courtyard to the secured door as the point of ingress. This however, was not the area where Ms Sintiris tripped.
Mr Wallace reiterated his earlier submissions relating to the entries in the general practitioner’s notes of 26 November 2009, where no episode of trauma was noted. He also contended that any attacks on Mr Schutz’s evidence were unfounded as he was merely responding to the history he had obtained.
Mr Wallace addressed the relevance of the cases he had relied upon (Barnard, Perera, Chapman, Hughes and Green) as arising from the fact that in all of these cases the employee had sustained their injury after travelling to or from their place of work and that the Tribunal’s consideration in accordance with s 6 of the Act was to determine whether the employee could be deemed to be injured in accordance with the phrase arising out of or in the course of their employment. In each of the cases he relied on it was determined that the employees were not making ingress or egress from their place of work as the place of injury was a public domain. Mr Wallace contended that the circumstances of Ms Sintiris’s injury were analogous to the cases cited.
Mr Wallace submitted that the decision in Telstra Corporation Limited v Bowden (2012) FCA 576 was wrongly decided because the test propounded in Roncevich was incorrectly applied, as the test required that the employee was injured doing something that was required or expected to do to carry out the actual duties. In relation to the older cases considered in Bowden and relied upon by Ms Sintiris, Mr Wallace pointed out that these concerned a different test, where to be compensable the injury had to arise out of and in the course of the employee’s employment. He contended that those cases identified the need for the employee to:
(1)Have encountered an accident because the employee was exposed to circumstances: ‘a dangerous spot’; that fell within the ‘scope’ employment of i.e. in the course of employment;
(2)The risk of the accident was an ‘incident to the performance’ of the employee’s employment;
(3)Where the accident happened the ‘duty to leave (or arrive) in a permitted manner had not been completed’;
(4)That the injured employee had not reach a place to which the public have a right of access or had no right to be and no reason to be, except for the conditions of employment or where the public may pass without let or hindrance; and/or
(5)There was no other point of ‘ingress’ or ‘egress’;
TRIBUNAL’S DELIBERATIONS
The Tribunal determines that Ms Sintiris injured her left knee on 25 November 2009 when she tripped on a cracked paver as she approached the entrance to her place of work, Building 3 at Greenwood Business Park, which housed offices leased by her employer Telstra.
Ms Sintiris was taking her afternoon break (an ordinary recess) as directed by her employer. As she is a cigarette smoker, she spent most of her 15 minute break smoking in the forecourt to Building 3, again as directed by the employer. In doing so, she was absent from the confines of Building 3 and in the common area as defined in the Lease.
Based on the medical evidence, particularly that of her treating orthopaedic surgeon, the Tribunal finds that the correct diagnosis of this injury was an anteromedial tear of the left lateral meniscus, superimposed on degenerative osteoarthritic changes, secondary to an injury sustained in adolescence. This may have been contributed to by a genu valgum deformity of both Ms Sintiris’s knees.
As such, Ms Sintiris’s injury falls within the first part of the definition provided in s 5A(1)(c) of the Act which states:
(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; ...
The employer’s liability is subject to the proviso also contained in this section that it is an aggravation that arose out of, or in the course of, that employment. The exclusions relating to reasonable administrative action are not relevant in this matter.
With the exception of Mr Schutz, the medical experts attributed the left knee meniscal tear to the incident of 25 November 2009. Mr Schutz was of the opinion that the fall or incident resulted in a strain to Ms Sintiris’s left knee, an injury that would resolve in 6 to 12 weeks, with any symptoms persisting thereafter being due to the underlying and longstanding degenerative changes in the knee.
Mr Byrne, the treating orthopaedic surgeon, is the only witness and probably the only qualified individual who has directly visualised the internal derangement of Ms Sintiris knee since the earlier arthroscopy of 2001. Thus, the Tribunal places a greater weight on his opinion than those of Associate Professor Myers, a vascular surgeon, and Mr Schutz, a general surgeon, neither of whom practice orthopaedic surgery including the performance of arthroscopy.
Whether Ms Sintiris fell to the ground after tripping on the paver or suffered a twisting of the knee is not of great importance. It is known that the force of the trip or stumble was sufficient to damage her left shoe. Mr Schutz agreed with the Tribunal that a twisting mechanism of injury is the feature of medial meniscal tears but not the only mechanism giving rise to lateral meniscal tears.
Mr Wallace submitted that Miss Sintiris had not been asymptomatic for several years prior to the incident of 25 November 2009. In so doing, he relied on two entries in Ms Sintiris’s medical records from Dandenong Medical Centre (Exhibit R4), dated 28 September 2009 and 26 November 2009. On 28 September 2009 Dr Jim Demirtoglou recorded a history of several days of finger joint and bilateral knee pains in the absence of trauma and on examination noted: mild swelling of both knees, no swelling of the finger joints and a normal range of movement in all of these joints. The provisional diagnosis he made was: ? arthritic pains.
This presentation is of a polyarthritis not single joint pathology. The entry of 26 November 2009 is perplexing. Dr Demirtoglou wrote: left knee pain 1/52 (1 week), no trauma and on examination detected slight swelling, pain on squatting, can weight bear, tender lateral aspect. His diagnosis on this occasion was ? ligament strain. This history was taken less than 24 hours after the incident. The Tribunal has no reason to doubt that the incident occurred as it was witnessed by Ms Sintiris’s work colleague Ms Sum and reported to a supervisor, Mr Paul Hemsley, by Ms Sum within minutes of its occurrence. Dr Demirtoglou’s entry is at odds with that of Mr Steven McAdam, the treating physiotherapist, who saw Ms Sintiris on 30 November 2009. Mr McAdam obtained a far more detailed and seemingly accurate history and performed a more extensive examination, leading him to a diagnosis of lateral meniscal tear. (Exhibit R5)
The Tribunal cannot explain this discrepancy but given the exhibited clinical standards applied, considers the assessment of Mr McAdam to be the superior and preferred assessment.
The salient question for decision by the Tribunal is whether or not the injury arose out of, or in the course of the employee’s employment. These phrases in turn raise further questions as to the meaning of:
·the actual duties of employment;
·activities incidental to that employment;
·the place of work;
·the meaning of an ordinary recess; and
·in relation to temporary absence from the workplace:
Øwhether such absence is associated with the employee’s employment;
Øthe undertaking of an activity associated with employment at the direction or request of the licensee; (as defined in the Act, Telstra is the licensee) and
Øthe effect of the Safety, Rehabilitation, Compensation and Other Legislative Amendments Act 2007 which removed the entitlement to compensation for an injury sustained during an ordinary recess when the employee was temporarily absent from their place of work as was Ms Sintiris, or so it is argued by Telstra.
It is accepted that arising from connotes a causal connection in the course of a temporal connection. (See for example Dover Navigation Company Limited v Craig (1946) AC 190; Kavanagh v Commonwealth (1960) 103 CLR 547 refer Dixon CJ).
The Applicant has relied primarily on what has been termed the old authorities, which were decided when the relevant legislation required a temporal and a causal connection to the employee’s employment. The Applicant has relied in particular on Murphy J’s consideration of these authorities in Telstra Corporation Limited v Bowden (2012) FCA 576 ,where he highlighted that a causal connection with employment or its incidents should not be narrowly construed, (See Thom or Simpson v Sinclair (1917) AC 127 and cases following this), requires a common sense approach to causation (see Migge v Wormald Bros Industries Ltd [1972] 2 NSWLR 29 per Mason JA) and that the legislation is intended to give rights to employees hence its generous interpretation by appellant courts (para 38 decision).
Murphy J in his consideration of the locality cases cited the decisions of Lord Haldane and Lord Shaw in Thom v Sinclair where they found that:
If an obligation of employment brought an employee to a particular place where the risk of injury arose then an injury suffered was one arising out of employment. (Bowden at 43)
Murphy J concentrated on the so called entry and exit cases as these were more applicable to the facts in Bowden. At paragraph 58 he said that:
Employment must have the same meaning in both limbs of the test that is arising out of and/or in the course of employment. It does not relate to just the performance of duties and includes things belonging to and arising from it including its nature, conditions, obligations and instance.
This extension to the concept of employment was illustrated by the decisions in a long line of English cases (see Weaver v Tredegar Iron Company Limited; John Stewart & Sons (1912) Ltd v Longhurst (1917) AC 249: Northumbrian Shipping Company Ltd v McCullum (1932) 48 TLR 568) and the High Court of Australia decisions in Roncevich v Repatriation Commission (2005) HCA 40 and Hatzimanolis v A.N.I. Corporation Limited (1992) 173 CLR 473).
In Roncevich, the majority of the High Court stated:
... whether an event arises in the course of an activity, or as here, out of "an activity", depends upon such matters as the nature of the person's employment, the circumstances in which it is undertaken, and what, in consequence, the person is required or expected to do to carry out the actual duties. The connexion must however be a causal and not merely temporal one.
Murphy J interpreted the words such matters as:
... an open rather than closed description of the things to be taken into account in determining whether an injury arises out of employment. [paragraph 79]
and not the rigid test that Telstra was seeking to apply in Bowden, which imposed a limitation to the words of s 5A(1) of the Act.
While acknowledging the organising principle enunciated by the High Court in Hatzimanolis, wherein the Court stated:
Accordingly, it should now be accepted that an interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way. Furthermore, an injury sustained in such an interval will be within the course of employment if it occurred at that place or while the employee was engaged in that activity unless the employee was guilty of gross misconduct taking him or her outside the course of employment. In determining whether the injury occurred in the course of employment, regard must always be had to the general nature, terms and circumstances of the employment “and not merely to the circumstances of the particular occasion out of which the injury to the employee has arisen”.,
Murphy J distinguished the decision in Hatzimanolis from the matter before him (that is Bowden) as Hatzimanolis applied to injuries suffered during intervals or interludes of employment, Mr Hatzimanolis having suffered injury on a day when he was off work. The High Court had taken an expansive view of employment in this case. Bowden in contrast was considered an entry case.
In Bowden, Murphy J dismissed the appeal, finding no error of law arising from the Tribunal’s decision that Mr Bowden’s shoulder injury aggravation arose out of his employment. This Tribunal notes Mr Bowden’s injury arose in the car park leased to Telstra for the purpose of employee parking, where access was controlled by use of a Telstra-issued swipe card and public parking was prohibited.
Mr Carey, counsel for the Applicant, relied on the long line of cases cited by Murphy J in Bowden, particularly the pre-eminence of s 5A and the non-limiting words of the preamble to s 6 which states:
(1)Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained:
This preamble to sections 6, 6A and 7 was described by the High Court in Canute v Comcare (2006)226 CLR 535 as being facultative.
Mr Bowden’s work-related injury occurred on 27 July 2009 and was therefore subject to the amendments introduced on 13 July 2007. Murphy J’s decision is said to be the only superior court decision between 13 July 2007 and 7 December 2011 (the latter date being the date of effect of the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2011) wherein s 6(1)(b) was restored to its previous iteration. As Mr Bowden was arguably on his way to work when he was injured, s 6(1C) was capable of being attracted. This states:
(1C)For the purposes of paragraph (1)(d), travel between the employee’s residence and the employee’s usual place of work is taken not to be at the direction or request of the Commonwealth or a licensee.
Mr Carey submitted that based on the decision of Bowden and the authorities relied on in that decision, this Tribunal should consider Ms Sintiris’s claim in accordance with s 5A(1)(c) without reference to s 6 as it then stood. In compliance with the employer’s instructions regarding smoking, Ms Sintiris was brought to a place of danger resulting in an injury to her knee, thereby attracting liability under s 14, the injury having arisen out of her employment. While this submission has merit based on the case law, the Tribunal is not so persuaded given the facts of this case.
In the alternative, Mr Carey submitted that Ms Sintiris had not disentangled herself from employment as her presence in the courtyard was in the contemplation of both employer and employee, given the employers’ policy concerning smoking. This was a sufficient connection with employment to establish that the injury arose in the course of her employment.

In contrast, Mr Wallace submitted that the Tribunal should give effect to Parliament’s clear intention to limit the employers’ liability for injury sustained during an ordinary recess while the employee was temporarily absent from their place of work.
The Tribunal agrees with Mr Wallace’s submission as to the injury occurring during an ordinary recess when she was temporarily absent from the confines of Building 3 at Greenwood Business Park but not with his assertion that the employer had no control over Ms Sintiris while she was in the complex’s forecourt. The amendments do not use the word control, they speak of direction or request.The Macquarie dictionary does equate the word direction with control but request is defined as asking for something to be done.
The Explanatory Memorandum (the Memorandum) to the Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2006 addresses recess breaks and journeys to and from work. With regard to recess breaks, the Memorandum states:
The Productivity Commission Inquiry found that the employer’s ability to exert control over workplace recess breaks and social activities is a relevant consideration. It recommended that coverage for recess breaks and work-related events be restricted, on the basis of employer control, to those undertaken at workplaces and at employer‑sanctioned events.
In 2004-05 claims for injuries acquired during recess breaks had been estimated to cost Comcare $2.9 million.
The stated objectives of the Amendment were:
As indicated previously in relation to proposals to amend the definitions of disease and injury, the Government’s primary objective with the workers’ compensation scheme established under the SRC Act is to minimise the human and financial cost of work‑caused injury and disease while at the same time providing adequate compensation and support for incapacitated employees.
The objective is to limit employers’ exposure to liability for employees’ injuries sustained during journey and recess breaks referred to above, in circumstances where there is a lack of employer control.
Several options were considered. The preferred option was Option 2:
Option 2 - Coverage for authorised recess breaks at the worker’s place of employment and attendance at employer‑sanctioned events but not for other recess breaks.
In relation to this option it was stated:
This option limits the employer’s exposure to liability to circumstances where the employer has occupational health and safety obligations and an element of control—that is, over the workplace or the venue at which social or sporting events are conducted.
The relevant Minister’s Second Reading Speech in respect of recess breaks essentially restated recommendations in the Memorandum and used the example of a recess break or lunch breaks during which the employee leaves the employers premises to go shopping.
The Respondent relied on the five decisions of the Administrative Appeals Tribunal previously referred to and submitted that this Tribunal should follow those decisions. All five would, in accordance with the old authorities, be classified as entry and exit cases. Two, Re Green and Comcare and Re Chapman and Comcare, occurred during an ordinary recess. Ms Chapman left her work to go for a walk, having worked for close to five hours without a break. She fell while descending a flight of stairs at Level 2 of the building where she worked, her office being situated on Level 9. Ms Green suffered an injury when she slipped on tiles in an area freely open to and constantly used by members’ of the public. In both cases the Applicant was found to be outside their place of work at the time of the accident, neither at the request or direction of the employer and in areas accessible to the public at all times. In Re Green and Comcare the Tribunal referred at length to the terms of the employers’ lease of the building in question.
In Re Hughes and Comcare, Ms Hughes tripped on a curb [sic] as she was leaving her workplace having completed her duties for the day. This fall occurred on an internal road which lead to an area for authorised (VIP) parking but could be accessed by any member of public on foot. Ms Hughes claim failed as her employer had limited control relating only to VIP vehicle parking.
In Re Barnard and Australia Post Corporation, Ms Barnard had fallen on some steps outside the building in which she worked which lead to the footpath. She had finished work for the day and was on her way home. In this decision, the terms of the lease were relied upon, including the boundaries of the property, to determine the place of work. The fall had occurred in a common area which by licence permitted employees to cross for the purpose of access to an egress from the leased premises. The Tribunal found that the place of work was defined strictly on the construction of the lease.
In Re Perera and Comcare, Mr Perera fell on his way to work immediately outside the front door of the building in which he worked. The area was freely open to the public and in front of a row of shops forming the facade of the ground floor of the building. As such, Mr Perera was found not to have reached his place of work at the time he was injured.
Section 4 of the Act provides a definition of place of work:
place of work, in relation to an employee, includes any place at which the employee is required to attend for the purpose of carrying out the duties of his or her employment.
In Comcare Australia (Defence) v O’Dea (1997) 150 ALR 318 at 325 [35] Northrop J said:
“place of work'’ ... connotes a defined area, ... or, to put the matter in another way, the area over which the owner or legal occupier of the area has control.
and at [45] :
The meaning of the expression ``place of work'’ in s 6 of the Comcare Act is such as to make the result in a given case depend largely upon matters of fact and degree; ...
The facts of this matter lead this Tribunal to a different conclusion from those of the Tribunals referred to above.
At the time of injury Ms Sintiris’s place of work was Building 3 of the Greenwood Business Park situated at 301 Burwood Highway, Burwood as described in the original or Head Lease dated 28 September 1992 and assigned to Telstra by Sensis Pty Ltd on 24 November 2004. The FIRST SCHEDULE to the lease identifies the premises as the whole of Building 3, plus two storage areas in the basement. The lease was for six years commencing on 1 January 2004.
Clause 9.1 of the original lease entitled the Lessee to Occupy at Own Risk and states:
The Lessee shall occupy and use the Premises and the Land at the risk of the Lessee and the Lessee releases to the full extent permitted by law the Lessor from all claims and demands of every kind resulting from any accident damage death injury or loss occurring in the Premises or on the Land excluding those resulting from the negligence of the Lessor. ...
and at 9.2 the Lessee indemnifies the Lessor at (c) for any:
accident damage death injury or lo9ss from any cause whatsoever to property or person caused or contributed to by the use of the Premises notwithstanding that such use may be within the scope of the Permitted Use by the Lessee; ...
Clause 12.2 refers to the Use of Common Areas and states:
The Lessee and the persons authorized by the Lessee may use the Common Areas in common with the Lessor and other persons authorized by the Lessor for the purposes for which the Common Areas were designed or intended to be used, subject to the terms conditions and covenants contained in this Lease.
The THIRD SCHEDULE to the original lease is entitled RULES AND REGULATIONS OF THE BUILDING. Clause 18 refers to Smoking in Common Areas:
The Lessee shall not permit or allow any employee servant or agent of the Lessee to smoke immediately outside the front doors of the Building. The Lessee shall provide proper receptacles for the disposal of refuse by smokers in the Building.
The Deed of Rectification made on 29 October 2010 again defined the premises as being all of Building 3.Although it refers to variations these were not provided in any clear form i.e. the annexures were a series of schematic drawings without text.
There is evidence before the Tribunal to suggest that at the time of Ms Sintiris’s injury, Telstra also leased part of Building 1. Ms Sum in her statement of 7 May 2012 (Exhibit R2) said she used the forecourt for the purpose of smoking, to go to the other Telstra building (Building 1) where Big-Pond was situated and the lawn in front of the forecourt was occasionally used for team meetings when it was a nice day. In her evidence before the Tribunal Ms Sintiris said she had received her induction training by Telstra in Building 1 (Transcript of 30 July 2012, p20).
A further Deed of Renewal and Variation was made on 25 August 2009 between the then owner and Telstra, to take effect on 1 January 2010. This variation extended Telstra’s lease of Building 1 to additional areas of the ground and first level of the building. It would appear that Telstra would then have occupied all of Building 1. This renewal also included a renewal of the lease for Building 3.
The site plan is annexed to the lease (T-Document 4, p88). Buildings 1 and 3 have entries from the forecourt and each has a rear entry accessible via the car parks. The shortest and most practical route for Telstra employees in either Building 1 or 3, required to visit the other building, is via the forecourt, as described by Ms Sum.
As recorded earlier in this decision, Ms Sum had said that she had never seen members of the public in the forecourt with the exception of delivery persons. Ms Sum had worked for Telstra for five years at the time this statement was made, the last two years being in Telstra’s Dockland offices. Her knowledge of the use of the forecourt would be superior to that of Ms Sintiris whose employment at 301 Burwood Highway was of the order of three to four months.
The third building in the complex (Building 2) was leased to Deakin University, whose campus is sited two streets to the west. Building 2 has a single entrance reached by either a separate walkway or the more circuitous route via the forecourt.
While there is no signage preventing members of the public from entering the site, such use is not contemplated in the lease in reference to the common areas and access to the buildings was by security pass only. Thus any access to the public in general was, if it occurred, limited.
In accordance with the lease, Telstra Corporation directed its employees as to where they could smoke and was required to supply cigarette butt receptacles. Telstra’s policy on smoking is contained in its Business Principles and prohibits the smoking in its buildings and in Telstra-owned motor vehicles.
In effecting the terms of the lease and instructing its employees’ during its induction processes as to where they could smoke, Telstra contemplated that the designated areas would be used by their employees during ordinary recesses for the purposes of smoking. Ms Sintiris’s presence in the forecourt during her afternoon break was both incidental to her actual duties and at the direction of Telstra.
Telstra’s employees’ practical use of the common areas included the designated smoking areas, the use of the forecourt as the most accessible transit route for employees between Buildings 1 and 3 and the occasional use of the lawns south of the forecourt for team meetings. These uses of common areas were all with, at least, the employers implied approval and within their contemplation and expectation there being no evidence to the contrary.
Thus, Ms Sintiris presence in the forecourt during her ordinary recess on 25 November 2009 was both at the direction of and within the contemplation of Telstra and to such a degree that her presence at this site was so incidental to her actual duties that it falls within the purposes of that employment.
The Tribunal determines that Ms Sintiris’s injury arose from or in the course of her employment in accordance with s 5(1)(c) and s 6(1C). The injury resulted in impairment and incapacity for work as provided by s 14, s 16 and s 19 of the Act. Therefore, Telstra is liable to pay her compensation.
Based on the medical evidence, Ms Sintiris was totally incapacitated from 25 November 2009. Surgical intervention was delayed by five months. Following her operation in May 2010, she improved sufficiently for her to believe she could return to work; although in retrospect this was an unwise move on her part. Pain and swelling in her left knee rapidly recurred during the six weeks of her employment with Roadside Services, leading her to resign from this position and again consult Mr Byrne. Mr Byrne recommended further surgery, which was undertaken after a four month delay. Recovery from this procedure was slow and continuing pain in the knee resulted in further treatment by Dr Tim McCarthy until late 2011.
Unfortunately, the reports of Dandenong Medical Centre do not go beyond 21 February 2011. The only medical assessment after that date available to the Tribunal is Dr Sutcliffe’s assessment of 30 March 2012, which found Ms Sintiris was still incapacitated for work. The delays in surgical treatment resulting from Telstra’s consideration of whether liability was accepted under s 16 may have contributed to the severity of the left knee joint derangement (Mr Byrne –Transcript 31.07.12 at page 109).
Ms Sintiris has been working since early July 2012 and gave evidence that her pain-free walking is still limited to 30 minutes and occasionally 40 minutes, but she can have totally pain free days. Provided she can move position during her work day she seems to cope adequately. All the expert medical opinion is that she will eventually require a left total knee replacement.
TRIBUNAL’S DETERMINATION
The Tribunal determines that Ms Sintiris has been incapacitated for work since the injury of 25 November 2009.
The decisions under review are set aside and in substitution the Tribunal decides:
(i)The injury sustained by Ms Sintiris on 25 November 2009 arose out of or in the course of her employment;
(ii)As a result of the injury, Ms Sintiris was incapacitated for work and Telstra was and is liable to pay her compensation in accordance with S14 and S19 of the SRC Act and medical expenses (s 16). These payments are to take into account the moneys paid up to 28 July 2010 and between about 2 February 2011 and 12 September 2011.
APPENDIX
APPLICANT’S EVIDENCE
·Statement of evidence of Andrew Kouzmenko dated 15 December 2011 –
Exhibit A1
·Statement of evidence of the applicant (Fontini Sintiris) dated 14 December 2011 – Exhibit A2
·Report of Mr Ken Myer dated 8 August 2011 – Exhibit A3
·Report of Dr Helen Sutcliffe dated 30 March 2012 – Exhibit A4
RESPONDENT’S EVIDENCE
·Section 37 (T-documents) File Nos 2011/0354, 2011/4870 and 2011/4914 – Exhibit R1
·Coloured photographs numbered 1-22 reproduced of the Telstra Buildings at Burwood Highway, Burwood – Exhibit R3
·Clinical notes of the Dandenong Medical Centre of 176 Lonsdale Street, Dandenong – Exhibit R4
·Road Side Services offer of employment dated 4 May 2010 – Exhibit R6
·Schedule of payments to the applicant by Road Side Services from 5 July 2010 – 4 September 2010 – Exhibit R7

I certify that the preceding 148
(one hundred and forty-eight) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member
[sgd]........................................................................
Administrative Assistant
Dated 19 December 2012

Dates of hearing 30 and 31 July 2012

Date final submissions received 18 September 2012

Counsel for the Applicant Mr Mark Carey

Solicitor for the Applicant Ms Wendy Kleyn

Solicitors for the Applicant Henry Carus and Associates Lawyers

Counsel for the Respondent Mr John Wallace

Solicitor for the Respondent Mr Andrew Shelley

Solicitors for the Respondent Sparke Helmore Lawyers

Division	GENERAL ADMINISTRATIVE DIVISION
File Numbers	2011/0354, 2011/4914 & 2011/4970
Re	Fontini Sintiris
APPLICANT
And	Telstra Corporation Limited
RESPONDENT

Tribunal	Miss E A Shanahan
Date	19 December 2012
Place	Melbourne

Dates of hearing	30 and 31 July 2012
Date final submissions received	18 September 2012
Counsel for the Applicant	Mr Mark Carey
Solicitor for the Applicant	Ms Wendy Kleyn
Solicitors for the Applicant	Henry Carus and Associates Lawyers
Counsel for the Respondent	Mr John Wallace
Solicitor for the Respondent	Mr Andrew Shelley
Solicitors for the Respondent	Sparke Helmore Lawyers