Tipping and Comcare (Compensation)

Tipping and Comcare (Compensation) [2023] AATA 457 (22 March 2023)
Division:GENERAL DIVISION
File Number(s): 2019/6139; 2022/2998
Re:David Tipping
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Member W Frost
Date:22 March 2023
Place:Canberra

The Tribunal affirms the decisions under review pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975.
......................[SGD]......................................
Member W Frost
Catchwords
WORKERS’ COMPENSATION – where the Respondent determined no liability pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 – employment with Defence – ‘injury’ or ‘disease’ – two claims – multitude of claimed physical injuries – back, neck and right knee injury – primary injuries – consequential injuries – ergonomic workplace assessments and support – soft tissue injuries – mysofascial pain syndrome – nerve entrapment – where medical evidence overwhelming – employment did not contribute – ‘to a significant degree’ – decisions under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975, ss 37, 43
Safety, Rehabilitation and Compensation Act 1988, ss 5A, 5B, 14, 71
Cases
Beezley v Repatriation Commission (2015) 150 ALD 11
Comcare v Power [2015] FCA 1502
Comcare v Wuth [2018] FCAFC 13
Pochi v Minister for Immigration and Ethnic Affairs [1979] AATA 64; 36 FLR 482
Rodriguez v Telstra Corporation Ltd [2005] FCA 30
The King v War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228
REASONS FOR DECISION
Member W Frost
22 March 2023
INTRODUCTION

The Applicant, Mr David Tipping, applied to the Administrative Appeals Tribunal (Tribunal) for review of two decisions by the Respondent, Comcare, affirming its determinations denying liability to pay him compensation under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) for multiple claimed physical conditions.
Mr Tipping contended that he suffered injuries as a result of his employment with the Department of Defence (Defence). Comcare declined liability because it found that Mr Tipping did not suffer an ‘injury’ for the purposes of the SRC Act.
The Tribunal has considered the more than 2,700 pages of documents filed in this proceeding, comprising all documents filed pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act), the parties’ ‘Hearing Bundle’ and ‘Supplementary Hearing Bundle’ of documents, and the documents produced by Defence pursuant to section 71 of the SRC Act, together with the parties’ submissions at the hearing.[1] For the following reasons, the Tribunal affirms Comcare’s decisions because it has found that Mr Tipping’s claimed injuries fail to meet the requirements of the SRC Act. Comcare is therefore not liable to pay Mr Tipping compensation under the SRC Act.
[1] Exhibits 1 to 6.
ISSUES
The issues for the Tribunal to decide in this proceeding are:
(a)whether any ‘ailment’ or ‘aggravation’ suffered by Mr Tipping was contributed to, to a significant degree, by his employment with Defence, so as to constitute a ‘disease’ under the SRC Act?; and
(b)is Comcare liable to pay compensation to Mr Tipping in accordance with section 14 of the SRC Act?
BACKGROUND
Mr Tipping is 56 years old.[2]
[2] Exhibit 3, page 7.
In the early 1990s, Mr Tipping was involved in a motorcycle accident which resulted in an arthroscopy of his right knee.[3]
[3] Ibid., page 67.
Between January and September 2007, Mr Tipping was employed by the then Department of Environment and Water Resources.[4]
[4] Exhibit 1, page 577.
On 1 June 2007, Mr Tipping received a medical certificate from Dr Peter Ragg, General Practitioner, for a soft tissue injury to his right shoulder and neck due to recurrent computer use at work.[5] Mr Tipping was recommended to receive physiotherapy and massage, but also declared fit to continue his pre-injury duties.[6]
[5] Exhibit 3, page 138.
[6] Ibid.
On 11 March 2011, Mr Tipping commenced employment with Defence.[7]
[7] Exhibit 1, page 622.
On 28 August 2012, SRC Solutions provided a ‘Basic Workstation Assessment Report’ in relation to Mr Tipping, which noted that, on that date, his chair, desk, monitor, keyboard and mouse were adjusted.[8] It also recommended that Mr Tipping be provided with a headset for his telephone and a footrest.[9]
[8] Exhibit 3, page 119.
[9] Ibid.
On 30 May 2013, Dr Melissa Rice, Osteopath, certified Mr Tipping as unfit for work on 30 and 31 May 2013 due to ‘acute lumbar pain’.[10]
[10] Ibid., page 123.
On 20 November 2014, Dr Adrian Wright, General Practitioner, provided a medical certificate, noting that Mr Tipping was suffering from bilateral rotator cuff tendinopathy and was advised not to work that day through to 25 November 2014. It was also stated that Mr Tipping ‘may need work station assessment so does not work with arms at or above shoulder height’ and that his elbows would also need to be ‘tucked in with keyboard work so no reaching’.[11]
[11] Ibid., page 124.
On 21 July 2015, SRC Solutions again assessed Mr Tipping and provided a ‘Comprehensive Workstation Assessment Report’, which relevantly stated that he reported that ‘95% of his workday involves computer based tasks’ and he was due to visit the United States of America (USA) to study for nine months.[12] At the assessment, several adjustments were made to Mr Tipping’s workstation.[13] The report also noted that:[14]
The following health concerns were reported at the time of assessment: Mr Tipping reports ongoing intermittent flare ups of neck and back pain. He reported right shoulder and neck pain several months ago which led to the workstation assessment being organised. The shoulder has now settled. He undergoes regular massage and osteopathy to manage his symptoms along with exercise such as swimming. He finds sitting for long periods can aggravate low back pain.
[12] Ibid., pages 130-133.
[13] Ibid.
[14] Ibid., page 130.
On 5 October 2016, Mr Tipping completed an ‘Event Summary Report’ claiming that he had developed tension in his neck, ‘possibly from using the computer mouse’ at his workstation.[15] The workplace supervisor advised Mr Tipping to ‘take some rest and avoid continuous work without taking breaks’.[16]
[15] Ibid., page 136.
[16] Ibid.
On 26 May 2017, Mr Tipping completed a ‘Sentinel’ notification claiming to have ‘strained’ his shoulder while typing on the computer on that date.[17]
[17] Ibid., page 137.
On 28 July 2017 and 19 December 2017, records from ‘movehappy healthcare centre’ refer to Mr Tipping experiencing neck pain and tightness.[18]
[18] Ibid., page 102.
On 30 April 2018, Mr Tipping reported to movehappy healthcare that his lower back had ‘stiffened up’.[19]
[19] Ibid., page 101.
On 30 May 2018, Mr Tipping reported to movehappy healthcare that he had an ‘ongoing chronic problem that comes and goes’.[20]
[20] Ibid., page 100.
On 7 June 2018, Dr Ragg reported that Mr Tipping ‘is suffering recurrent low back pain’ and would benefit from a workplace ergonomic assessment.[21]
[21] Ibid., page 91.
On 2 July 2018, Mr Tipping completed a ‘Sentinel’ notification, which stated as follows:[22]
I relocated to R1 for a 6 month assignment. When I arrived I used the desk and chair at the work station. As a result of back pain, I needed to get my old chair from BP26. I requested a work station height adjustment which Spotless completed. Spotless advised the desk was broken. They inserted a screw in the side brace to prevent the desk from self adjusting to its lowest position. I have requested an updated ergonomic assessment.
[22] Ibid., page 139.
On 3 July 2018, Dr Ragg reported that Mr Tipping was experiencing ‘[l]ow back pain again’ and referred him to an exercise physiologist.[23]
[23] Ibid., page 40.
On 23 and 24 July 2018, Mr Tipping reported, he was provided by Defence with a sit-stand desk and an ergonomic workstation assessment was conducted.[24]
[24] Ibid., page 80.
On 21 August 2018, Dr Ragg recorded that Mr Tipping had ongoing pain in his right leg, musculoligamentous and that he was receiving osteopathy treatment.[25]
[25] Ibid., page 98.
On or around 24 August 2018, Mr Tipping resigned from his employment with Defence, with effect from 31 August 2018.[26]
[26] Exhibit 1, page 622 and Exhibit 3, page 80.
On 7 September 2018, movehappy healthcare records state that Mr Tipping had ‘nil back pain’ and ‘the calf is better’.[27]
[27] Exhibit 3, page 100.
On or around 15 September 2018, Mr Tipping travelled to Japan for the World Water Congress.[28] While walking around and continuing his treatment regime, Mr Tipping’s ‘right calf, knee and leg condition became severe’.[29]
[28] Ibid., page 80.
[29] Ibid.
On 25 September 2018, Mr Tipping attended a hospital in Thailand.[30] He was diagnosed with arthritis of the right knee and advised to limit his activity until he fully recovered.[31] An orthopaedic surgeon drained fluid from his knee.[32]
[30] Ibid., page 103.
[31] Ibid.
[32] Ibid., page 104.
On 8 October 2018, Dr Ragg reported that Mr Tipping had developed ‘right knee pain two weeks ago’ and was given acupuncture in Thailand.[33]
[33] Ibid., page 41.
On 18 October 2018, Dr Ragg reported that Mr Tipping’s knee was ‘slowly improving’.[34]
[34] Ibid.
On 22 November 2018, Dr Ragg recorded that Mr Tipping had ‘6 weeks of pain and swelling’ in his right knee. He had suffered no trauma, but the pain had started after being advised by his physiotherapist to ‘use flippers when swimming’ in order to help his back pain.[35]
[35] Ibid.
On 7 December 2018, a report following an MRI of Mr Tipping’s right knee recorded a previous ‘sprain/old intrasubstance tear’ of his ‘ACL’ [Anterior Cruciate Ligament], a ‘small complex tear…at the anterior root of the lateral meniscus’ and ‘increased signal around the medial and lateral collateral ligaments from sprain’.[36] The comment provided in the report was as follows:[37]
ACL sprain. Small complex tear of lateral meniscus. Grade 3 chondromalacia patella and low grade chondromalacia of medial femoral condyle. Knee effusion and synovitis. Medial gastrocnemius muscle sprain.
[36] Ibid., page 149.
[37] Ibid., page 150.
On 10 December 2018, Dr Ragg recorded that Mr Tipping had an ‘abnormal MRI right knee’ and the knee pain commenced after his physiotherapist encouraged him to ‘use flippers when swimming to build up core strength to deal with his back’.[38]
[38] Ibid., page 41.
On 17 December 2018, Dr Ragg provided a medical certificate noting that Mr Tipping had a soft tissue injury with ‘consequent right knee injury’ and was unfit for work from 31 August 2018 to 23 January 2019.[39] Dr Ragg also recorded in his clinical notes that Mr Tipping’s calf pain ‘started after using flippers 3 times a week’.[40]
[39] Ibid., page 110.
[40] Ibid., page 42.
On 14 January 2019, Dr Ragg provided a further medical certificate again noting that Mr Tipping had a soft tissue injury to his right knee, but that he was fit for work from 14 January to 15 February 2019, working ‘reduced hours’, stated to be ‘3 hours’ per day.[41]
[41] Ibid., pages 42 and 113.
On 16 January 2019, Mr Tipping submitted a Workers’ Compensation Claim to Comcare.[42] In that claim form, Mr Tipping stated that the condition for which he was seeking compensation was a ‘Back, Neck and Right Knee Injury’, which occurred while he was ‘[u]ndertaking government business at a computer work station’.[43] He stated that he first noticed his ‘symptoms/injury’ at 10.00am on 1 June 2018.[44] In response to the question in the claim form as to what happened and how Mr Tipping was injured, he stated that:[45]
I had neck and back problems, which required me to have several ergonomic desk assessments over 7-8 years to position the workstation correctly. (There were times when I was assigned to other desks or others took my chair or made adjustments to my workstation.) Some time in June 2018, the doctor referred me to a physio for treatment. He developed a training program for me to follow. While following physio’s recovery instructions, I developed a calf muscle injury that translated as tightness in the leg (which has dissipated now). However, while affected I got a shiatsu/acupuncture treatment for the tightness of the leg. The next day I had a huge swelling of the right knee. I was prescribed antinflammatory [sic] tablets. Later, tests and xrays [sic] were collected to determine the nature of the problem and set up a new physio recovery training program. I am informed the recovery is now progressing well.
[42] Exhibit 3, pages 7-13.
[43] Ibid., page 8.
[44] Ibid., page 9.
[45] Ibid., pages 8-9.
On 25 February 2019, Dr Ragg provided a medical certificate in relation to Mr Tipping’s ‘[s]oft tissue injuries to neck, low back pain and right knee’.[46] He was certified fit for work from that date.[47] Dr Ragg’s clinical notes recorded that Mr Tipping:[48]
had increasing low back and neck pain in June 2018. At that time he had recently changed to a new work location. His desk set-up was not addressed for a prolonged period and his Sit-Stand desk did not follow him for 2 to 3 months. Saw Exercise Physiologist in July and advised to swim and use flippers to strengthen core muscles. After this, developed pain Right calf muscle and knee. Possibility of DVT [Deep Vein Thrombosis] was raised and he had an Ultrasound. Also had Thai Massage in Sydney and leg pain increased. In October, had Shiatsu massage in Tokyo resulting in swollen painful knee. Had 80ml fluid drained in Chiang Mai and has had painful knee ever since. Can walk reasonably but gets pain with sitting.
[46] Ibid., pages 116-117.
[47] Ibid., page 116.
[48] Ibid., page 42.
On 14 April 2019, Dr Ragg provided a report to Comcare, which relevantly stated as follows:[49]
Mr Tipping has a rather complicated medical history. He presented to me on 7 June 2018 with persistent low back pain which he felt was caused by the positioning of his workplace desk and chair…
In July 2018, he attended an Exercise Physiologist who advised Mr Tipping to swim regularly and to use flippers while doing so to strengthen his core muscles.
After doing this, Mr Tipping developed pain and swelling in his right calf which lasted several months. The swelling also spread up to his right knee causing pain and instability.
…The knee pain increased when Mr Tipping was in Thailand and a doctor in Chiang Mai apparently drained 80 mls of fluid from it.
Mr Tipping’s low back pain and right knee have steadily improved. [H]e is fit for full duties but experiences low back pain if he sits for too long.
He suffers recurrent lumbar soft tissue strain which is worsened by excessive sitting. It is likely that his workplace caused an aggravation of a pre-existing condition.
[49] Ibid., pages 154-155.
On 6 May 2019, Comcare made a determination declining Mr Tipping’s claim for compensation for ‘neck, shoulder and back pain’ and ‘derangement of lateral meniscus (right)’ under section 14 of the SRC Act.[50]
[50] Ibid., pages 71-72.
On 20 August 2019, following a request by Mr Tipping for reconsideration, Comcare affirmed its determination from May 2019 declining liability to pay him compensation under section 14 of the SRC Act in respect of ‘back, neck and right Knee Injury’.[51]
[51] Ibid., pages 76-155 and 157-160.
On 25 September 2019, Mr Tipping applied to the Tribunal for review of Comcare’s decision (2019 Proceeding).[52]
[52] Ibid., pages 1-5.
On 8 October 2021, Mr Tipping submitted a second Workers’ Compensation Claim to Comcare, for a number of ‘[c]onsequential and secondary injuries which were not claimed previously’, but which were said to have been first noticed at 3.00pm on 15 March 2012.[53] Mr Tipping identified the ‘Primary Injuries’ in this claim as being posterior chain syndrome, right hip flexors tendonitis, right hip injury, and soft tissue injury to neck and back.[54] He also identified the following ‘Consequential Injuries (caused by not getting improved ergonomic setting while following treatment for primary injury)’: right rotator cuff tear and bilateral shoulder tendonitis, myofascial pain syndrome, postural compression matter, neck pain and irritation, low back pain and sacrum irritation and multiple muscle weakness from lower and upper cross syndrome.[55] Mr Tipping further identified the following ‘Secondary Injuries’: chronic bilateral rotator cuffs tendonitis, right hip injury, sitting intolerance with pain around Piriformis muscles area, right shoulder tilt with right moderate winged scapular, right leg tendonitis/musculoligamentous, high ferratin, urinary retention, poor blood circulation in hands and vertigo.[56] He also claimed the following symptoms were caused during treatment: right knee injuries, right knee swelling, bilateral shoulder rotator cuff injury, abdominal muscle strain and elbow bursitis.[57] In summary, the parts of the body Mr Tipping claimed were affected comprised: rotator cuffs, shoulders, posterior chain muscles, upper and lower back, pelvis, neck, right hip, piriformis muscles, scapulars, leg muscles, hands, right knee, right calf, right foot, abdominal muscle, and elbow.[58]
[53] Ibid., ST3, pages 5-16.
[54] Ibid., pages 6-7.
[55] Ibid., page 7.
[56] Ibid., pages 7-8.
[57] Ibid., page 9.
[58] Ibid., pages 9-10.
Mr Tipping further stated in his claim that he was ‘engaged in an employer approved activity’ when he was injured.[59] In response to the question in the claim form as to what happened and how Mr Tipping was injured, he stated that:[60]
The primary and consequential injuries were caused from the use of Department of Defence contractor-specified workstation ergonomic settings that promoted incorrect posture over the period 2011-2018. The secondary injuries were caused by improper management of primary injuries and during treatment.
[59] Ibid., page 6.
[60] Ibid., page 11.
On 29 November 2021, Comcare made a determination declining liability under section 14 of the SRC Act in relation to Mr Tipping’s second claim for compensation regarding the above-mentioned conditions.[61]
[61] Ibid., ST7, pages 17-36.
On 9 February 2022, following a request by Mr Tipping for reconsideration, Comcare affirmed its determination from November 2021 declining liability to pay him compensation.[62]
[62] Ibid., ST6, page 16 and ST8, pages 37-46.
On 8 April 2022, Mr Tipping applied to the Tribunal for review of Comcare’s decision (2022 Proceeding).[63]
[63] Ibid., ST1, pages 1-3.
LEGISLATION
Subsection 14(1) of the SRC Act provides:
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.
‘Injury’ is relevantly defined in subsection 5A(1) of the SRC Act to mean:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;...
Section 5B of the SRC Act regarding the definition of ‘disease’ states that:
(1)   In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2)   In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3)   In this Act:
significant degree means a degree that is substantially more than material. [emphasis in original]

Section 4 of the SRC Act defines ‘ailment’ to mean ‘any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’. It also provides that ‘aggravation’ includes ‘acceleration or recurrence’.
EVIDENCE
Mr Tipping
The Tribunal has considered the written statement filed by Mr Tipping in this proceeding, totalling 106 pages excluding annexures, together with his Statement of Issues, Facts and Contentions, comprising 45 pages.[64]
[64] Exhibit 1, pages 577-727 (excluding annexures).
Mr Tipping gave evidence in-person at the hearing of the proceedings and confirmed adherence to his written statement.
By way of cross-examination, Mr Tipping was referred to his first workers’ compensation claim form from 2019, which stated that he first noticed his symptoms on 1 June 2018.[65] Mr Tipping told the Tribunal this date was used as a matter of expediency; he had ‘no understanding’ of his injury at the time.
[65] Exhibit 3, pages 7-13.
Mr Tipping agreed that there was no record of him suffering any specific right knee symptoms between 1 June 2018 and the last day he worked for Defence on 31 August 2018. He further agreed to attending Mr David Halpin, Exercise Physiologist, on 29 August 2018 complaining of aching at the back of the right leg, especially around the calf area, but Mr Tipping also said that he believed he was referred for assessment of his back and shoulder tendonitis. However, Mr Tipping agreed that there was no mention of these symptoms in the clinical notes, only a reference to his calf. Mr Tipping disagreed with the suggestion that, on another attendance with Mr Halpin on 13 September 2018 he again did not record anything in relation to any knee symptoms.
Mr Tipping further did not agree that travel to Japan after he resigned from Defence in 2018 was in a private capacity and said it could be construed as a ‘continuing obligation’ to fulfil his professional development goals he had set while employed with Defence. He agreed that, as a result of the walking he did at this conference, he had increased pain in the right leg and a hotel concierge recommended a shiatsu massage and acupuncture, both of which he obtained. The following morning, Mr Tipping woke with a greatly swollen right knee and was in a lot of pain. Mr Tipping agreed that an osteopath report obtained after this travel did not mention right knee pain. Mr Tipping conceded that the pain was in his right calf and not the knee. Mr Tipping was referred to his attendance on Dr James Bodel, Orthopaedic Surgeon, and the history taken that he had developed an acutely swollen right knee whilst attending the conference in Japan, but that Mr Tipping attributed the exacerbation of right knee symptoms to the massage. Mr Tipping told the Tribunal that was an ‘association represented’ to Dr Bodel and he communicated ‘what happened from my perspective’.
Despite stating in his written statement that cramping in his right calf experienced while flying was during a period of private travel in July or August 2018, he told the Tribunal that he did not have cramping during the July travel and that he ‘didn’t have a leg problem at that time’ and that the trips were to fulfil ‘a professional development obligation’ or during ‘sick leave’, so both were said to be related to employment.
Following the incident in Japan, Mr Tipping underwent aspiration of his knee in Thailand and further treatment in Australia. Mr Tipping agreed that when he saw Dr Paul Hitchen, Orthopaedic Surgeon, on 17 April 2019, he told him that his right knee symptoms had vastly improved and that his knee no longer swelled; this had subsided in September 2018. In December 2019, Mr Tipping told Dr Bodel that he had right knee pain, but he could not recall whether he later told him in 2020 that it comes and goes. Mr Tipping did not dispute Dr Bodel’s records indicating that the knee had recovered. Mr Tipping further told the Tribunal that, unlike Dr Mpho Banda, Occupational Physician, he had not told Dr Bodel or Dr Hitchen that he could not weight-bear on the knee due to pain because they did not ask him that question; Mr Tipping’s evidence was that his understanding of not being able to weight-bear on the knee was that it would not allow him to ‘walk on my knees’. He further stated that the knee was ‘not a hundred per cent problematic at that time’ and was not ‘the priority injury’. He could not recall whether he told Professor Peter Youssef, Rheumatologist, that his knee had recovered by March 2019. Mr Tipping also could not recall telling Dr Banda that he had some ongoing discomfort, especially after prolonged driving and certain exercises. However, he agreed that he told Professor Youssef at the second examination in September 2022 that he experienced intermittent pain while driving and doing exercises.
Mr Tipping also told the Tribunal that he could not comment on the proposition that, at the time of his resignation from Defence in August 2018, he was having treatment for symptoms affecting the back of his leg from the calf to the back of the thigh, but not specifically for his right knee.
Mr Tipping was referred to an MRI scan performed on 7 December 2018, which reported an ACL sprain and small tear of the lateral meniscus of his knee. He was also taken to his statement that ‘I did not have an ACL injury or torn meniscus when I commenced employment’.[66] Mr Tipping told the Tribunal that he did have a meniscus injury and surgery before he started with Defence, but it was not the same condition and he could not comment ‘on whether I had an injury’. Mr Tipping was asked whether he told Professor Youssef in March 2020 about a pre-employment motorcycle accident and arthroscopy for a right meniscal tear and that he continued to experience discomfort. Mr Tipping agreed that the tear shown in the MRI from 2018 was that which occurred in or around 1991 following the motorcycle accident, but he also believed a medical expert had said it was ‘degeneration’.
[66] Exhibit 1, page 700.
Mr Tipping was taken to his statement that ‘my meniscus became torn after I played rugby’ during a work retreat in 2011.[67] He told the Tribunal this was the only event he could recall where he had undertaken highly vigorous activity that could have caused this condition, but later said that he did not believe he had an injury at that time ‘or I would’ve reported it’. Mr Tipping denied making up this claimed injury and said he was trying to be ‘honest and truthful’.
[67] Ibid.
Mr Tipping was taken to a claimed incident in July 2016 and asked whether he had any record of it resulting in an injured right knee. He said he had a ‘micro-trip during a walking meeting’ where he ‘kicked the kerb’. Mr Tipping agreed that the notes from two attendances on an osteopath in June 2016 and July 2017 did not record any such incident or injury to his right knee.
Mr Tipping was then referred to a claimed incident upon disembarking a mini-bus in September 2012. Mr Tipping told the Tribunal that he ‘had issues with my irritation of my right leg and knee, but it was not disabling’. Mr Tipping’s written statement was that he ‘landed awkwardly’ on his right leg, ‘the added weight of the shoulder bag caused me to lose balance’ and he ‘suffered a minor twist of the right knee’.[68] He further recorded that ‘I initially had a sore right knee, it did not interfere with my work. I did not seek medical treatment and forgot about it’.[69] In response to the proposition that his written account was accurate, Mr Tipping stated that he regularly went to the osteopath, it ‘didn’t interfere with my work schedule’, he ‘didn’t have a terrible limp’ and it was ‘just a niggling injury that I carried, after that’. He agreed that he did not tell Dr Hitchen about this incident because he ‘had no recollection’ of it at that time. Mr Tipping also did not recall or confirm telling Dr Bodel or Professor Youssef about this incident at their respective examinations in 2019 and 2020. Mr Tipping told the Tribunal it was upon reviewing the osteopath notes from 2013 for these proceedings that he recalled this fall and the reported injury to his ‘thumb and wrist’. This injury was from a separate claimed incident from July 2013. Mr Tipping could neither recall whether he told Dr Bodel at the second examination in July 2021 nor Dr Banda about it. Mr Tipping also initially told the Tribunal that he could not recall whether he told Dr Banda that the September 2012 incident had not interfered with his work, that he had not sought treatment and that he forgot about it, and subsequently said that he believed he had communicated the ‘injury, or the accident, to Dr Banda’. While initially stating that he told Professor Youssef at the second examination that ‘there may have been a swelling’ of his knee, he subsequently could not confirm whether he said this to Professor Youssef and said he did not recall ‘the fine details of the injury’.
[68] Ibid., page 656.
[69] Ibid.
Mr Tipping was referred by Counsel to the incident on 16 July 2013 when walking down some stairs he reportedly fell over and landed on his hands and knees while carrying a shoulder bag. He acknowledged that he did not recall the incident at the time of his consultation with Dr Hitchen in April 2019 and therefore did not tell him anything about it. Mr Tipping told the Tribunal that his ‘memories are affected by the passage of time’. In this regard, Mr Tipping could not recall telling Professor Youssef that he could not remember receiving any treatment to the knee at the time of incident in 2013, but agreed that his osteopath recorded, two days after the incident in 2013, that his right knee was ‘improved’ and that, eight days after the incident, the osteopath recorded that the knee was ‘100%’.[70] Mr Tipping told the Tribunal that he could not recall having any swelling in the knee at the time of the incident, but that he ‘may have had a graze’. Mr Tipping did recall, based on his written statement, that following a ‘shiatsu acupuncture massage’ in Japan in September 2018 he had woken the next day with swelling and that this was the first time his right knee had swelled since recovering from his 1992 arthroscopy.[71]
[70] Ibid., page 156.
[71] Ibid., page 698.
Counsel for Comcare put to Mr Tipping that, apart from the report of Mr Halpin that Mr Tipping had pain in the back of his knees, there is no mention of the right knee in his medical records until September 2018, when it was aspirated at a hospital in Thailand. Mr Tipping told the Tribunal he had informed the osteopath and exercise physiologist that he had a calf injury and that ‘they reported posterior knee injury’. When it was put to Mr Tipping that it was only Mr Halpin that recorded any such condition, Mr Tipping could not recall, but that he ‘had a posterior knee problem’.
Mr Tipping was referred to his claimed back and neck conditions. He told the Tribunal he would not say that his ‘bad back’ had been ‘continuous’ for many years before his employment with Defence, however stated that he had back pain or aches when he was working as a plumber up until 1998. When referred to Dr Hitchen’s reference to a long-term history of back pain, Mr Tipping said this was not ‘continuous’ but on ‘specific occasions’. He did, however, agree that this was one of the factors for him leaving the plumbing industry. Mr Tipping confirmed that he had problems with his back and right shoulder in 2007, before his employment with Defence. He was referred to his workers’ compensation claim form lodged in 2019 for a back, neck and knee injury, which stated that he first noticed his symptoms or injury on 1 June 2018 and was then taken to his written statement that, on or about 26 April 2018, he started to ‘feel worse irritation again around my lower back and neck areas’ and that this occurred ‘several days after I had begun doing some sorting, packing and storing’ of documentation, including lifting and carrying ‘heavy boxes’.[72] Mr Tipping was asked to confirm that he told Professor Youssef he could not recall a specific episode of pain while lifting or carrying boxes. He replied: ‘I can’t – I can’t really – I wouldn’t agree with that today’. Mr Tipping told the Tribunal he ‘can’t comment’ on the proposition that he did not tell an osteopath anything about lifting boxes at work during their consultation on 30 April 2018, a few days after this claimed incident. He did agree that he told another osteopath on 2 May 2018 that he injured his back on the weekend and that six days later Mr Tipping informed the osteopath that his walking was better, he was sleeping normally and he had been swimming.
[72] Ibid., page 689.
Mr Tipping also agreed that during an induction on 14 May 2018 for a temporary six-month position in another area of Defence he was required to undertake a self-assessment of his workstation using an ergonomic workstation self-assessment checklist. He believed he did this with every new position he held in Defence, but said the ergonomic settings he was provided were ‘later found to be inaccurate for my body type’. Mr Tipping disagreed that he did not disclose any pre-existing injury or requirement for ergonomic furniture during his induction. When Mr Tipping raised his sore back with his supervisor in May 2018, she asked him if he had any ergonomic furniture in his previous work location. He agreed and she asked why he had not advised her beforehand and to then arrange transfer of this equipment from his previous workstation. Mr Tipping told the Tribunal that he had been advised to ‘watch out’ for ‘environmental triggers’ that may be exacerbating his ‘back and neck injury’ and so he ‘attributed the use of the sit stand desk because it had gotten worse during that period of use’. It was put to Mr Tipping that his supervisor had told him to arrange an ergonomic assessment and to move his office furniture to his new location, but that he advised her that he did not think the particular branch in Defence would spend money on these matters because of his temporary relocation. He told the Tribunal that this did not ‘align with my understanding of the issue’. Mr Tipping agreed that in June 2018, his general practitioner, Dr Ragg, had not diagnosed him with a soft tissue injury to his right shoulder, cervical region and lower back caused by computer use, as he claimed in his written statement, but that this consultation was for the purpose of obtaining an ergonomic assessment.[73] Mr Tipping did not directly answer the proposition that Dr Ragg had not mentioned any right shoulder or neck condition.
[73] Ibid., page 690.
Mr Tipping was referred to his consultation with Mr Halpin in July 2018 and agreed that he told him he was swimming a distance of one kilometre three times each week using freestyle, breaststroke and backstroke.
On 24 July 2018, Mr Tipping had a requested workstation assessment performed.[74] He told the Tribunal he could not agree that he informed the assessor he was comfortable in his then chair ‘because I don’t know as a fact’. Mr Tipping’s chair was adjusted and it was recorded that he had a sit-stand desk and stated that he ‘is currently comfortable’.[75] Mr Tipping subsequently told the Tribunal he could not ‘recall specifically’ telling the assessor he was comfortable.
[74] Exhibit 3, page 140.
[75] Ibid., page 142.
Counsel for Comcare put to Mr Tipping that, except for the July 2015 workstation assessment where it was recommended he have a new chair, the three other assessments resulted in minor changes to Mr Tipping’s desk and chair because he was located at different desks and chairs on each occasion. He told the Tribunal that: ‘You’d need to speak to an ergonomic specialist’.
In August 2018, while on leave from work, Mr Tipping travelled to the USA. His written statement records that:[76]
On 12 August 2018, I had a calf cramp while sitting after completing physical exercises and walking, and had irritation afterwards. After completing some swimming with fins followed by a massage, I had calf pain that progressed...
[76] Exhibit 1, page 694.
Mr Tipping confirmed he suffered this ‘calf cramp while I was on the aircraft’ returning from the USA.
Mr Tipping returned to work at Defence on 20 August 2018 and gave notice of his resignation the following day. He agreed that his letter of resignation provided no reason for that resignation and he could not recall that his statement in these proceedings said that it was health-related. Mr Tipping would not comment on the suggestion that he complained to Dr Ragg on 21 August 2018 about his right leg, but not his back. He also could not recall Dr Ragg certifying him unfit for work on that date. Mr Tipping’s final day with Defence was 31 August 2018 and he agreed that this ‘wasn’t long’ since his last ergonomic assessment in late July 2018.
Mr Tipping agreed that Mr Jerome Smith, Osteopath, recorded on 7 September 2018 that his calf was better and that he had no back pain. Mr Tipping also agreed that he told Dr Hitchen in April 2019 that he could go many days without any neck and lower back symptoms and that ‘possibly one of the triggers’ was poor sleep posture. Mr Tipping agreed that a Statutory Declaration he made on 19 July 2019 stating that ‘[o]nce in a blue moon’ he had stiffness due to poor sleeping posture was ‘maybe’ an attempt to downplay the significance of Dr Hitchen recording that Mr Tipping told him that this occurred sporadically.[77] He told the Tribunal he had ‘episodes of stiffness and sometimes I had these in the mornings’.
[77] Exhibit 5.
Mr Tipping agreed that in July 2019 he had a specifically designed ergonomic chair and desk in his home office. He told the Tribunal it was reasonable to say that he has had no central lower back pain since August 2021, but that he had occasional ‘right side of the back hip pain’.
Mr Tipping was referred to his second workers’ compensation claim the subject of the 2022 Proceeding, including the claimed injuries of vertigo, high ferritin levels and urinary retention. He agreed that some of the claimed conditions were reported by practitioners and that he ‘put that on the record as it was something that I had suffered’.
The Tribunal asked Mr Tipping whether his contention was that any condition he may or may not have had during a certain period is all related in some way to his employment with Defence. He replied that ‘[i]t’s my understanding that if your injury then triggers that, the injury is covered’. He disagreed that he was making a broad based compensation claim for any condition he has ever suffered during a certain period of time and said ‘I made an association with the workplace injury, or the treatment I received for that workplace injury, or whether I perceived that they were associated with the injury and a consequence of it’.
By way of re-examination, Mr Tipping told the Tribunal that he had a continuing shoulder injury from 2007, contrary to his first workers’ compensation claim form that he first noticed the symptoms or injury on 1 June 2018. This was explained as being because ‘it was only when I started investigating the injury that I established there was something there that needed to be considered by Comcare’. In relation to his knee injury, Mr Tipping told the Tribunal that ‘the manifestation of a complex injury can take time’, and that he believed his ‘soft tissue injury’ manifested over seven or eight years. He further told the Tribunal that the shoulder injury is ‘known to be prevented through the provision of an ergonomic keyboard and mouse’.
Ms Julia Wynn
Ms Wynn made a written statement dated 7 July 2020 which, among other things, noted that Mr Tipping was one of four Health and Safety Representatives (HSRs) in her ‘team’ at Defence from 2013 until she left in 2017, where she was the ‘Lead Base and Infrastructure Division HSR’ from 2011 to 2017.[78] Ms Wynn referred to HSRs ‘suffering due to being targeted for reprisals’ as a result of performing their role and the ‘harassment has resulted in three former Infrastructure Division HSRs experiencing significant health issues’.[79] Ms Wynn further stated that, among ‘the three HSRs being targeted was Mr Tipping, who exited Defence due to his health issues’.[80]
[78] Exhibit 1, pages 872-874.
[79] Ibid., pages 873-874.
[80] Ibid., page 874.

Ms Wynn gave evidence at the Tribunal hearing and confirmed adherence to her statement from July 2020. Ms Wynn confirmed her work, health and safety qualifications and training and that she was the lead HSR from 2011 to 2017 at Defence. She told the Tribunal that employees in Mr Tipping’s branch regularly worked beyond the standard 38 hours, and she was aware that some had been working up to 18 and 20 hour days. Ms Wynn described having an interaction with Mr Tipping’s CFI Branch ‘most days’ either as a direct result of her work or her role as an HSR. She stated that the CFI Branch was known as a ‘burn and churn’ branch, with the average length of a person’s time in this section said to be ‘six months’. Ms Wynn also told the Tribunal that some officers in the CFI Branch left because they worked weekends.
Ms Wynn told the Tribunal that it had been a ‘common problem’ that ergonomic assessments were not being carried out as requested. As a result, a division-wide email was circulated stating that such assessments must be done and reiterating the policy, which was that an ergonomic assessment was performed by a physiotherapist or occupational therapist on the request of a medical practitioner. Following the assessment report, any required equipment was purchased for an individual to relieve an issue. Ms Wynn said that if a person continued to experience pain they were sent for a medical assessment. Ms Wynn also told the Tribunal that she was aware at the time that Mr Tipping had not had an ergonomic assessment for around nine months from late 2014 to mid-2015.
Ms Wynn further told the Tribunal that before any Work, Health and Safety meeting she would meet with the HSRs and discuss matters raised, but she ‘tended not to interfere’ with individual ergonomic assessments, although she raised the concern that there was a significant misunderstanding of the requirements on supervisors regarding assessments and that there were outstanding assessments required by staff. As previously stated, the response following an April 2015 Work, Health and Safety meeting was the sending of a division-wide email to ensure that assessments were undertaken. Ms Wynn again confirmed that at the April 2015 meeting, the delays in ergonomic assessments for staff was discussed and recommended actions made and followed up, especially with managers. She confirmed that, due to privacy constraints, individual matters were ‘very rarely’ discussed. Ms Wynn told the Tribunal that if an ergonomic assessment was undertaken and an employee moved to a new workstation within 20 working days, the policy was to implement the existing assessment or, if that was not possible, a new assessment would be ordered.
By way of cross-examination, Ms Wynn told the Tribunal she did not recall when she became aware of the delay in Mr Tipping receiving an ergonomic assessment, but that it would have been raised directly from Mr Tipping as an HSR in advance of the aforementioned April 2015 meeting. Ms Wynn agreed that, following the April 2015 meeting, Mr Tipping was appointed as one of two people to investigate and undertake further action to ensure the ergonomic assessments occurred in his own branch in Defence.
Medical evidence
Mr David Halpin – Exercise Physiologist
On 27 July 2018, Mr Halpin reported to Mr Tipping’s then general practitioner following referral for ‘treatment of low back pain’ that, clinically, his ‘muscular strength was reasonable, however he was very locked up and his…mechanics were altered’.[81] Mr Halpin also noted that Mr Tipping’s ‘mobility has substantially improved’, his symptoms were ‘not increasing’, he was ‘carrying out home exercises on a daily basis’ and ‘swimming 3 times per week’.[82]
[81] Exhibit 3, page 93.
[82] Ibid.
On 19 March 2019, Mr Halpin reported to Comcare with a treatment summary in relation to Mr Tipping.[83] Mr Halpin stated that Mr Tipping ‘reported symptoms initially developing after a workstation move on 14 May 2018, in which he believed was due to the new workstation not replicating his old set up’.[84] Mr Halpin further stated that by Mr Tipping’s fourth appointment in August 2018:[85]
his low back pain was of minimal concern, although he was reporting right calf cramping in which may have been due to adding flippers to his swimming sessions to assist with buoyancy. Then in October 2019, Mr Tipping reports experiencing acute knee pain while attending a conference in Japan. Aside from the long plane trip, he was unaware of any events that may have caused the knee to flare-up. Acupuncture in Japan exacerbated the symptoms.
[83] Ibid., page 96.
[84] Ibid.
[85] Ibid., pages 96-97.
On 5 July 2019, Mr Halpin provided an updated report to Mr Tipping, which relevantly stated that posterior knee symptoms were reported, with ‘below the knee being the major concern’, and symptoms initially occurred ‘1 week ago in the middle of the night’, however it was aggravated three days before presenting to the clinic on 20 August 2018, ‘which he believed may have been due to a car trip to Sydney’.[86]
[86] Ibid., page 97.
Mr Halpin did not give evidence at the Tribunal hearing.
Mr Jack Mest - Physiotherapist
On 26 March 2019, Mr Mest provided a letter to Comcare, which noted that Mr Tipping reported that he first noticed ‘right proximal calf/posterior knee discomfort on a return flight from America’.[87] He further reported that Mr Tipping then travelled to Japan for a conference in September 2018, ‘during which he noticed a recurrence of his right proximal calf/posterior knee pain whilst walking around the conference centre’.[88]
[87] Ibid., page 107.
[88] Ibid.
Mr Mest did not give evidence at the Tribunal hearing.
Dr Paul Hitchen – Orthopaedic Surgeon
On 17 April 2019, Dr Hitchen provided a report to Comcare following an assessment of Mr Tipping on the same date.[89] Dr Hitchen’s diagnosis of Mr Tipping’s condition was, with respect to his back and neck, ‘non-specific intermittent neck and back pain’ and ‘symptom free’ and, with respect to his right knee:[90]
he had an episode of swelling and pain, and his investigation showed some oedema at the back of the knee – presumably the effects of a vigorous massage some weeks prior. His MRI has also shown evidence of a small degenerative tear of his lateral meniscus.
Importantly, however, today’s examination of his knee, back and neck was clinically normal.
As such, I do not believe he is currently suffering from any significant specific orthopaedic condition.
His neck and back would fulfil the criteria of so-called sporadic Non-specific spinal pain.
His right knee has a number of abnormalities (minor) detected on MRI. However, at this stage, clinically, they are not symptomatic. He has essentially a normally knee for his age.
[89] Ibid., pages 63-69.
[90] Ibid., page 66.
Dr Hitchen further reported that:[91]
I find no relationship between his knee condition and work. It appears his knee flared up after a vigorous massage and acupuncture. Fortunately his knee condition has now settled. His MRI shows some mild degenerative changes which are unrelated to work. Certainly, swimming with flippers would not have caused the changes (degenerative) evident on MRI. As noted today, examination of his knee was normal.
With regard to his neck and back, it is conceivable that postural fatigue resulted in a degree of neck and lower back discomfort. Nevertheless, he had an ergonomic workplace assessment undertaken on up to four occasions and states he had the opportunity to change his posture. Hence, this propensity to neck and lower back discomfort on a sporadic basis is more so constitutional. Importantly, one does not need an injury to suffer from neck or back pain.
[91] Ibid., page 67.
In response to the question: ‘Is there a significant causal connection between the claimed condition and Mr Tipping’s employment with the Department of Defence?’, Dr Hitchen stated, ‘No’ and emphasised that ‘today’s examination was essentially normal’.[92] In addition, Dr Hitchen’s opinion was that Mr Tipping’s condition was not an aggravation, acceleration or recurrence of a pre-existing or underlying condition.[93]
[92] Ibid.
[93] Ibid., page 68.
Dr Hitchen did not give evidence at the hearing.
Mr Paul Driscoll - Osteopath
On 28 June 2019, Mr Driscoll reported that Mr Tipping had been his patient for many years and ‘usually attends for treatment of episodic lower back and neck pain’.[94] Mr Driscoll stated that these episodes are ‘intermittent and are usually resolve[d] with a couple of treatment and then are managed with exercise’.[95] He further stated that Mr Tipping last consulted him on 27 August 2018, with a ‘right calf strain which he sustained swimming using flippers’.[96]
[94] Ibid., page 99.
[95] Ibid.
[96] Ibid.
Mr Driscoll did not give evidence to the Tribunal at the hearing.
Dr Warren Harrex – Occupational and Environmental Physician
On 12 July 2019, Dr Harrex provided a report to Mr Tipping following a consultation of the same date, which relevantly stated that:[97]
I explained to you that in order for Comcare to accept a claim it required evidence of injury which was related to your employment. On the basis of the information provided, the Comcare decision appeared appropriate.
…
I do not have the time to review all the details in the reports you have sent me in order to prepare a comprehensive and appropriate medical opinion to meet the required Comcare time-frame for your appeal…However, my observation on the detailed chronology you provided is that you appear to have been a hard-working, conscientious and dedicated employee with a history of repeated episodes of occupational overuse syndrome. I note also the long delays at various times in obtaining workstation assessments from your employer and making workplace adjustments in response to your symptoms.
[97] Ibid., pages 86-87.
Dr Harrex did not give evidence to the Tribunal at the hearing.
Dr James Bodel – Orthopaedic Surgeon
On 10 December 2019, Dr Bodel provided a report to Mr Tipping’s then solicitors following an assessment on the same date, which report relevantly responded to their questions as follows:[98]
[98] Exhibit 1, pages 532-538.
Your prognosis for the condition our client is suffering from;
Thi[s] gentleman’s prognosis is uncertain. At this stage he does not have an established medical diagnosis. He needs to be assessed by a rheumatologist as I strongly suspect non-orthopaedic causes of his pain which may be contributing to his clinical circumstances.
Your opinion as to causation, in particular, do you consider our client’s condition to have arisen out of, or in the course of, his employment with the Department of Defence?
This patient presents with non-specific intermittent neck and back pain of uncertain pathological diagnosis. This gentleman has developed pain in the workplace. He attributes the onset of symptoms to various ergonomic problems with his workstation. Clearly his symptoms have arisen as result of those factors but in the absence of underlying pathological diagnosis it is difficult to be certain.
In your opinion is our client’s condition an aggravation, acceleration or recurrence of a pre-existing condition or underlying condition? If so did our client’s employment contribute by a significant degree to the aggravation?
Again, this is a difficult question. He may have suffered an aggravation of underlying pathology but as yet that is undiagnosed. I would strongly recommend an assessment and investigations from a rheumatologist. He will also need an assessment by an occupational physician. [emphasis in original]
On 2 August 2021, Dr Bodel provided a further report to Mr Tipping’s then solicitors following another assessment of him on 12 July 2021.[99] Dr Bodel noted that there was ‘no specific accident or injury at any stage, as far as I can determine, which has caused the onset of these symptoms, primarily axial based in the neck, the middle back and lower back but also spreading to the shoulders, the gluteal muscles and into the hamstrings and the right knee’.[100] Dr Bodel also commented that, ‘[o]n the two occasions that I have examined Mr Tipping, therefore, I am at a loss to understand in orthopaedic terms the exact pathological diagnosis which is causing his widespread “myofascial pain syndrome”’.[101] In this regard, Dr Bodel stated that this diagnosis, together with ‘Thai office syndrome’, from a physical therapist in Thailand is not ‘an orthopaedic diagnosis’.[102] Moreover, Dr Bodel reported that ‘myofascial pain syndrome’ is:[103]
described as one of the chronic pain conditions affecting the musculoskeletal system. Most people experience muscle pain at some time that typically resolves on its own after a few weeks but in some people, “muscle pain persists”. It is also to be compared with fibromyalgia and the symptoms as given to me most resembled that clinical diagnosis, which is a matter for a rheumatologist. It was for that reason that I recommended that this gentleman be assessed by a rheumatologist and indeed he has seen Professor Youssef.
[99] Ibid., pages 543-553.
[100] Ibid., page 545.
[101] Ibid., page 549.
[102] Ibid.
[103] Ibid.
Dr Bodel responded to Mr Tipping’s then solicitors’ questions relevantly as follows:[104]
[104] Ibid., pages 550-552.
History of injury obtained?
This gentleman has a very complex history which essentially appears to be a gradual onset of spinal pain, shoulder girdle pain, hip, buttock and thigh pain and a right knee injury associated with the nature and conditions of his work with the Department of Defence. I have been unable to identify any other specific accident or injury.
…
There are also significant psychosocial issues associated with his workplace and the “stress” applied to him in the nature of the role that he was undertaking.
Nature of condition found on examination?
This question is a very difficult question. At the time of my physical assessment of him on 10 December 2019, I was unable to identify any major definitive orthopaedic diagnosis. He has widespread complaints of pain and investigation do show probable rotator cuff pathology in both shoulders, the right a little worse than the left. The neck, interscapular pain and lower back pain however do not correlate with any orthopaedic condition that I am aware of. I note that he now has a definitive diagnosis of “myofascial pain syndrome” and this has been provided by a neurologist in Thailand. This is a chronic pain syndrome and a matter for a pain management specialist, a rheumatologist, or a rehabilitation physician dealing with chronic pain syndromes. It is not an orthopaedic matter that I can assist in. The shoulders are stiff, associated with the bursitis and tendinitis, which is an orthopaedic diagnosis for which appropriate treatments are available.
The relationship between the condition found on examination and the injuries sustained as a result of his employment. Please give your views regarding the cause of our client’s condition on the balance of probabilities.
This gentleman relates the nature and conditions of his work and that work with the co-worker in the gymnasium as being related to the onset of his symptoms. This all began in about 2014 and the natural history of these soft tissue injuries is that they should resolve over time but that does not appear to have been the case in this circumstance. Mr Tipping is quite severely incapacitated by his ongoing complaints although at the moment he is doing quite well because he is in the midst of an intense rehabilitation program including exercise and massage, which is helping greatly.
…
Did/does our client suffer from an “ailment” affecting his back and neck (claimed as occupational overuse injuries) for the purpose of the SRC Act?
This gentleman indicates that his medical diagnosis is myofascial pain syndrome and a right hip injury. As I have indicated that clinical diagnosis is a matter for a rheumatologist or a rehabilitation physician and not an orthopaedic surgeon.
Were any occupational overuse injuries affecting our client’s back and neck contributed to, to a significant degree, by his employment with the Department of Defence?
This gentleman developed pain in the spine centrally, the shoulders and the right knee and the hips and buttocks as a result of the nature and conditions of his work with the Department of Defence. He ceased work with the Department three years ago, in August of 2018, and any soft tissue overuse syndrome associated with the nature and conditions of his work with the Department of Defence should now have settled. [emphasis in original]
Dr Bodel gave evidence at the Tribunal hearing and confirmed adherence to his abovementioned reports. He told the Tribunal it was a ‘strong probability’ that the pattern of the onset of Mr Tipping’s conditions demonstrated a clear causal chain to the nature and conditions of his work or ‘any of the acute or other traumas he was exposed to’. Dr Bodel said that muscular fatigue was ‘most unlikely’ to lead to a permanent condition and was ‘unlikely’ to cause tendonitis or bursitis because these were related to movement of the shoulder, compared with there being no significant jolting movement, or any so-called ‘micro-trauma’, of the shoulder while carrying a bag.
Dr Bodel accepted that the nature of work in general ‘could’ put Mr Tipping at risk of bursitis and tendonitis in the shoulders over a period of time and that spinal discomfort is most likely permanently or temporarily triggered by postural issues, poor ergonomics of a workstation and a person’s general level of physical fitness. He told the Tribunal it was ‘probable’ that there was underlying pathology in the shoulder leading to restrictions in his range of movement and accepted that this could be related to the existence of bursitis and tendonitis. Dr Bodel said there were some signs of pathology in the right knee and both shoulders, but he was unable to comment on the underlying conditions in the lumbar and thoracic regions.
Dr Bodel told the Tribunal he did not see any significant sign medically of major pathology based on Mr Tipping’s clinical presentation, apart from restriction of the right knee and shoulders and a possible musculoskeletal issue of the spine. At the time of his examination, Dr Bodel did not see anything clinically that would prevent Mr Tipping from working 15 hours each week and, with appropriate adjustments, ‘much more’.
Dr Bodel disagreed with the proposition that degeneration of the AC joint in the shoulder could be caused by typing; it is a genetic abnormality being, in itself, a ‘genetically-based pathological process’. He considered that the nature of work at the time of the injury ‘could’ have caused an ‘aggravation of an underlying degenerative change’, but it was ‘unlikely’ to have caused a ‘permanent aggravation’, acceleration, exacerbation or deterioration. Dr Bodel further opined that the nature of the work could cause a temporary aggravation, but after a maximum of 12 months, ‘at the absolute outside’, this would have settled and ceased. He also stated that the pathology in the right knee and shoulders are vulnerable to deterioration over time caused by a range of daily activities, it is not only a return to work that could necessitate a permanent aggravation; it is a ‘possibility’.
Dr Bodel told the Tribunal that he had ‘never ever heard’, in a medical sense, of a diagnosis of ‘fascial nerve entrapment’, and suggested a neurologist was best placed to consider this matter; it was not an orthopaedic matter upon which he could give evidence.
Dr Bodel disagreed that there was a deterioration in Mr Tipping’s spine between his two examinations and indeed, at the second consultation, he saw an improvement in the spine and ‘a better range of motion’, as expected, in circumstances where Mr Tipping had been undertaking a treatment protocol for many months.
By way of cross-examination from Comcare’s Counsel, Dr Bodel confirmed that following his two examinations he was unable to make a diagnosis in relation to Mr Tipping’s claimed conditions, except for bilateral bursitis and tendonitis in his shoulders and identifying degenerative changes in his right knee, which could lead to complaints of pain and loss of function in the knee.

Dr Bodel accepted that there would be a ‘lesser likelihood’ of Mr Tipping suffering a rotator cuff injury in his employment given the largely sedentary nature of his role. In this regard, Dr Bodel said he agreed with the ‘very thoughtful analysis’ of Professor Youssef that it was not possible that Mr Tipping’s shoulder condition was related to his employment, but was related to his sporting activities, such as swimming, water polo and surfing, given they required movement above shoulder height. Dr Bodel also agreed that, given an exercise physiologist recorded on 9 June 2018 that Mr Tipping was swimming one kilometre three times each week, he was therefore not greatly restricted by any rotator cuff problems.
Dr Bodel did not recall being told by Mr Tipping at the first examination of a claimed fall at work in 2013, but confirmed he was told of this incident at the second examination and its aggravation of the right knee. Dr Bodel was asked to assume that after this incident Mr Tipping twice attended an osteopath who, eight days later, recorded that the right knee was 100% and that Mr Tipping’s evidence to the Tribunal was that he did not recall this incident until reviewing the clinical notes in these proceedings. As a result, Dr Bodel agreed that, on the balance of probabilities, this incident was unlikely to have significantly contributed to any knee condition, including because there was no mention of the knee two days after the incident when Mr Tipping attended the osteopath. To this end, Dr Bodel confirmed that he recorded in his supplementary report that the right knee condition had ‘resolved’ and Mr Tipping ‘has no ongoing complaints in that region’.[105]
[105] Ibid., page 552.
Dr Bodel was referred to his 2021 report in which he stated that Mr Tipping ‘developed pain in the spine centrally, the shoulders and the right knee and the hips and buttocks as a result of the nature and conditions of his work’.[106] Counsel asked how this statement aligned with another passage that Dr Bodel was ‘unable to identify any major definitive orthopaedic diagnosis’, other than in relation to Mr Tipping’s shoulders.[107] In response, Dr Bodel referred to his written statement that Mr Tipping ‘ceased work with the Department three years ago, in August of 2018, and any soft tissue overuse syndrome associated with the nature and conditions of his work with the Department of Defence should now have settled’.[108] He told the Tribunal that he was unable to explain Mr Tipping’s ongoing claimed conditions on the ‘basis of any medical diagnosis that I would accept’. Dr Bodel also agreed that if Mr Tipping’s symptoms were persisting despite his new working arrangements at his home-office it was less likely that the original workstation set-up at Defence caused his symptoms. Dr Bodel further agreed with Professor Youssef that, given Mr Tipping’s current physical activities, there is no physical reason why Mr Tipping cannot perform his usual work activities, including travelling and carrying bags as part of his employment.
[106] Ibid.
[107] Ibid., page 551.
[108] Ibid., page 552.
Professor Peter Youssef – Rheumatologist
On 30 March 2020, Professor Youssef provided a report to Comcare’s solicitors following an examination of Mr Tipping on 25 February 2020.[109] Professor Youssef’s report relevantly stated that:[110]
[109] Ibid., pages 8-49.
[110] Ibid., pages 40-45.
The available notes document that Mr Tipping reported shoulder problems in 2014. An ultrasound of the right shoulder performed on 24 November 2014 (T15.25) documents that there was an intrasubstance tear as well as subacromial bursitis with a moderate effusion and a heterogeneous biceps tendon with a tendinopathic subscapularis tendon. An ultrasound of the left shoulder performed on 27 November 2017 also showed supraspinatus and bicipital tendinopathy as well as bursitis. It is not possible that his sedentary work could have caused these changes in the right shoulder but rather that these were related to his sporting activities such as surfing, competitive swimming and water polo. He told me that he played water polo at the Australian University Games and that he was a surfer and competitive swimmer. These changes occur after activities requiring movement above shoulder or chest height which were not activities related to his work. These changes would not be caused by sedentary work. Mr Tipping told me that he took time off work between 2014 and mid-2015 to go to Cornell University. He told me that his symptoms were unchanged during this time suggesting that they were not particularly related to his work with the Department.
Mr Tipping appears to have experienced very little in the way of musculoskeletal symptoms during 2015, 2016 and most of 2017… It is unlikely that the use of a computer mouse would cause any structural abnormality in the cervical region.
Mr Tipping reports longstanding problems with his workstation. This is not consistent with the findings of a comprehensive workstation assessment dated 28 August 2015 which recommended only minor adjustments to his workstation. Mr Tipping, in a request for reconsideration dated 19 July 2019, documents a concern that the ergonomics of his workstation may have exacerbated the right shoulder problem. He attributes his injuries to his high workload and work-related stress and for management that required him to sit for long hours and operate a computer and mouse. A high workload of sedentary work would not contribute to his shoulder problems.
…
It is highly unlikely that the changes in height of the sit-to-stand desk would cause severe neck, back and shoulder pain. There may be some mild spinal discomfort, but not severe pain, if he was required to stand in a flexed posture if the desk was too low. However, this does not appear to have been the case as a screw or similar was placed to lock the desk at the required height. Also, I would not expect severe shoulder pain to develop in this situation.
…
Mr Tipping continues to complain of spinal pain. At no point does he appear to have developed significant radicular pain. I note that no significant physical abnormalities were found on examination of the spine by the general practitioner or by Drs Hitchen and Bodel and I also found no significant spinal abnormalities on my examination. Mr Tipping does not have a spondyloarthritis or other physical cause of significant spinal symptoms. I agree with Dr Hitchen that non-specific spinal pain is common in the community.
…
Mr Tipping told me that he experienced right calf pain on a flight from New York to Canberra in August 2018 after doing some stretching. He told me that this pain had settled by the time he arrived in Australia. This was probably an episode of muscle spasm that resolved. I also note from the records of City Family Practice dated 26 July 2018 that he had developed some focal pain at the top of the right calf that had settled and I note that he was labelled with a calf strain by Mr Paul Driscoll. It is possible that some of his calf pain may have been related to swimming with flippers. He did not need to swim with flippers as a result of any work related injury but was using flippers as part of an exercise regime. The calf pain was probably soft tissue in origin and has resolved. At present, there is no abnormality in either calf.
…
An MRI of the right knee dated 7 December 2018 demonstrated a knee effusion as well as a small complex tear of the anterior root of the lateral meniscus with some soft tissue oedema in the posterior knee and around the gastrocnemius and changes in the anterior cruciate ligament from an old sprain. These findings are consistent with resolving inflammation of the right knee as a small meniscal tear and an old anterior cruciate ligament strain would not cause a significant knee effusion. Mr Tipping did not complain of current knee or calf pain. There is currently no abnormality to knee examination and no clinical evidence of a significant knee or calf disorder.
I agree with Dr Bodel's assessment that the cause of Mr Tipping's symptoms is non-orthopaedic. However, I cannot explain his current symptoms on the basis of a rheumatological condition related to his work or otherwise.
In answer to specific questions, Professor Youssef further relevantly stated that:[111]
(a)Mr Tipping ‘has a long history of non-specific spinal pain which I cannot relate to any specific injury. It is possible that he sustained a soft tissue injury to the muscles of the right calf, particularly the gastrocnemius, related to using flippers. This has resolved’;
(b)Mr Tipping ‘developed an acute inflammatory arthritis of the right knee which has resolved. There is currently no evidence of an effusion in the right knee and no abnormality on examining the right knee’;
(c)‘There was no evidence of a voluntary exaggeration of his symptoms. However, his symptoms are out of proportion to any objective physical findings’;
(d)‘I do not consider that he currently has any significant impairment and therefore cannot explain any disability on the basis of a physical musculoskeletal disorder related to his employment or otherwise’;
(e)Mr Tipping ‘is not currently impaired due to any musculoskeletal condition related to employment or otherwise’; and
(f)‘It is my opinion that he never had a significant employment-related condition’.
[111] Ibid., pages 45-48.
On 14 September 2022, Professor Youssef provided a supplementary report to Comcare in these proceedings following a further examination of Mr Tipping on the same date.[112] Professor Youssef confirmed that his re-examination of Mr Tipping and review of additional documentation ‘do not alter my previous opinion of 30 March 2022’ and again commented that the ‘alleged symptoms are out of proportion to any objective physical findings’.[113] In relation to a diagnosis and description of Mr Tipping’s claimed physical conditions, Professor Youssef stated that:[114]
Mr Tipping reports a long history of widespread musculoskeletal symptoms in the absence of any objective physical findings. As I documented in my previous report, he developed an acute inflammatory arthritis of the right knee which has resolved. On observation of the right knee during this examination, there was no swelling in the knee. Despite his report of neck, shoulder, lower back and hip symptoms, there was no wasting in his musculature and in fact the musculature was well developed. There was also a full range of movement in all joints.
He does not currently have a significant musculoskeletal condition.
[112] Ibid., pages 57-107.
[113] Ibid., page 76.
[114] Ibid., pages 76-77.
In relation to Mr Tipping’s claimed ‘myofascial pain syndrome’, Professor Youssef referred to medical literature which documents that ‘myofascial pain disorder is a regional pain disorder that affects every age group and is characterised by the presence of trigger points or ‘muscle knots’ within muscles or fascia’ and comprises ‘30% to 85% of cases of musculoskeletal pain’.[115] He further noted that ‘it is documented that there is a lack of standardised criteria for assessing this syndrome’, but ‘there is a consensus for two criteria, the presence of tender spots in the muscle and the ability to recreate symptoms through palpation’.[116] To this end, Professor Youssef relevantly noted that:[117]
On page 11 of my previous report, I documented my examination in detail, which included palpating the muscles of the cervical and occipital region as well as the lumbar region and around the shoulder girdles. Therefore, I clearly performed an examination looking for trigger points. I found no evidence of muscle spasm and no trigger points and therefore no evidence of the myofascial pain syndrome. Furthermore, Mr Tipping's symptoms are quite widespread and affect a much larger area than is normally seen in patients given the diagnosis of myofascial pain syndrome which is a regional disorder. Therefore, Mr Tipping does not have clinical evidence of the myofascial pain syndrome.
[115] Ibid., page 77.
[116] Ibid.
[117] Ibid., page 78.
Professor Youssef opined that Mr Tipping does not currently have a significant underlying physical musculoskeletal condition’ and was, in fact, in ‘excellent musculoskeletal physical condition’.[118] In response to a question regarding whether Mr Tipping suffers from, or has suffered from, an injury (other than a disease) or the aggravation of such an injury arising out of, or in the course of his employment, Professor Youssef opined that:[119]
Mr Tipping has reported minor injuries occurring while at work such as twisting his knee on one occasion. These were only minor incidents of soft tissue strain which have resolved. There is no evidence of an injury in the course of his employment that would have been significant enough to have caused chronic significant damage to any musculoskeletal structures or chronic pain.
[118] Ibid., pages 78 and 80.
[119] Ibid., page 79.
In response to a question regarding whether Mr Tipping suffers from, or has suffered from, an ailment or the aggravation of an ailment that as contributed to, to a significant degree, by his employment, Professor Youssef stated:[120]
No. He does not suffer from a physical musculoskeletal ailment contributed to significantly by his work with the Department of Defence. I would reiterate that his work was generally sedentary.
[120] Ibid.
Professor Youssef further stated that ‘[a]ny symptoms related to soft tissue strains would have ceased within two to four weeks. There is no evidence that any work related factor has contributed to his ongoing symptoms and alleged disability’ and there is ‘currently no evidence of a physical condition that prevents Mr Tipping from working in his pre-injury duties on a full time basis’.[121]
[121] Ibid., page 80.
Professor Youssef gave evidence at the Tribunal hearing and confirmed adherence to the contents and the opinions expressed in his abovementioned reports. He told the Tribunal that he has practiced for over twenty years as a rheumatologist.
Professor Youssef said that Mr Tipping had not provided him at their first consultation with a history that included an injury to his right knee following alighting a mini-bus in 2012 and as a result of tripping on stairs in 2013. He was referred to Mr Tipping’s written statement, which noted that he ‘initially had a sore right knee’, but ‘it did not interfere with my work’, he did not seek medical treatment and ‘forgot about it’.[122] Professor Youssef confirmed that this supported his opinion that these were minor incidents of soft tissue strain which have resolved and that there is no evidence of an injury in the course of Mr Tipping’s employment that would have been significant enough to have caused significant damage to the structures of his right knee.
[122] Ibid., page 656.
Professor Youssef was referred to the incident in July 2013, which resulted in an osteopath eight days later reporting that his knee and thumb were both 100%. He was also referred to Mr Tipping’s evidence that he did not recall the incident until reviewing the osteopath’s notes for the proceedings. Professor Youssef told the Tribunal that this confirmed his opinion that Mr Tipping had suffered only minor instances of soft tissue strains which resolved and that there is no evidence of an injury that would have been significant enough to have caused significant damage to the structures of his right knee.
Professor Youssef was taken to the reference in his first report regarding the identification in 2018 of inflammatory arthritis in Mr Tipping’s right knee following the removal of synovial fluid found to be inflammatory. He confirmed that this opinion was based upon the laboratory report from September 2018 which found a high white blood cell count in synovial fluid.[123] Professor Youssef noted that the claimed right knee injuries would not have caused the high white blood cell count in the synovial fluid and it was consistent with the resolving meniscal and anterior cruciate strain, which were from pre-existing injuries.[124]
[123] Ibid., pages 44 and 843.
[124] Ibid.
Professor Youssef was referred to the letter of Dr Stephan Praet, Sport and Exercise Physician, dated 23 May 2022, which reported ‘clear tenderness’ and ‘multiple Valleix points’ near nerves.[125] He was asked whether this was something that he looked for when examining Mr Tipping. Professor Youssef told the Tribunal he would have examined the nerves down the neck. He did not find anything of note and these reported symptoms were not consistent with the issues. Professor Youssef further said that if there was some restrictive movement of Mr Tipping’s shoulders it might be consistent with a rotator cuff problem, but this was not consistent with his findings or those of Dr Bodel. To this end, Professor Youssef noted that the tests conducted by Dr Praet to identify significant rotator cuff issues were reported to be ‘normal’ or ‘inconclusive’.[126] Professor Youssef told the Tribunal that there was ‘absolutely no evidence’ that these sensory nerves were ‘trapped’ or ‘damaged’, or of ‘fascial nerve entrapment’, as reported by Dr Praet.[127] In this regard, there was no sensory loss or damage because there was no reduced sensation in the nerves. Professor Youssef told the Tribunal he had ‘never heard’ of these nerves being ‘entrapped’ in this fashion and that myofascial pain is a regional pain syndrome the causes of which are not presently understood. He further stated that one of the theories is there is some hypersensitivity at the nuero-muscular junction and when muscles are pressed you get ‘triggering’ of pain, or a ‘trigger point’, but this would not ‘run in a nerve distribution’ as Dr Praet had opined; there would not necessarily be any sensory loss or weakness, just hypersensitivity.
[125] Ibid., page 437.
[126] Ibid.
[127] Ibid.
Professor Youssef was taken to the report of Dr Banda which suggested that there was no physical abnormality detected.[128] He told the Tribunal that the diagnosed soft tissue injuries to both shoulders were reported to her by Mr Tipping, there were no significant abnormalities to his right knee, the right ‘ITB syndrome’ required tenderness over the hip and tendon, and there was nothing in the examination indicating pain syndrome, and chronic pain was ‘not really a diagnosis’. He noted that Dr Banda considered Mr Tipping fit for work-related duties with restrictions on prolonged typing, mouse use and sitting. Professor Youssef said it was always good to have a sound ergonomic workplace and stretch breaks, but there was nothing specific in these recommendations to Mr Tipping’s condition; they were ‘general recommendations’ for anyone in the workplace and nothing in Dr Banda’s report caused Professor Youssef to change his opinion.
[128] Ibid., page 571.
Professor Youssef was referred to an x-ray of Mr Tipping’s lumbar spine in February 2015, which found degenerative changes.[129] He said that constitutional degenerative changes were not uncommon and bilateral sacroiliitis was a constitutional disorder that can cause back pain in some patients. Therefore, Professor Youssef opined, constitutional factors may be present in Mr Tipping’s reported pain, but his presentation is ‘greatly out of proportion’ to any impairment on examination or on the objective findings.
[129] Ibid., page 1019.
By way of cross-examination from Mr Tipping, Professor Youssef told the Tribunal that there can sometimes be a significant psychosocial component to the presentation of symptoms and that they may be work related or otherwise. He said that pain is a ‘symptom’ and acknowledged the ongoing argument in the medical profession about whether pain is a symptom or a disease, or both. Professor Youssef told the Tribunal that poor posture has not been shown to lead to damaged cervical joints or bone, but trauma can lead to abnormalities; degenerative disease is the most common somatic abnormality but that is a constitutional disorder. In this regard, the common symptom of neck pain can be as a result of a slow degenerative process and does not need to be due to an acute traumatic process. Mr Tipping asked Professor Youssef about the effect of carrying a 15-kilogram shoulder bag. He told the Tribunal that if it was very heavy and the person was leaning over or across, this may cause ‘irritability’ in the spine, but generally not a thoracic or spinal injury. It might ‘strain’ the trapezius muscles, but should not damage the shoulder joint or cause spinal damage. Professor Youssef confirmed that it would not cause a major muscle tear or an irreversible issue; any condition would wear off ‘quite quickly’ and there would be no ‘significant structural abnormality’ from which a person would not recover.

Dr Banda examined Mr Tipping on 23 November 2021 and 9 May 2022, and produced a report dated 20 July 2022.[227] She diagnosed Mr Tipping with neck pain, right knee injury, right iliotibial band syndrome, chronic pain syndrome and soft tissue injuries to his bilateral shoulders.[228] Dr Banda noted in her report that, from the available medical records, Mr Tipping had, among other things, a ‘pre-existing neck condition’, back pain from working as a plumber between 1982 and 1998 and a right knee injury requiring an arthroscopy in or around 1992.[229] However, tellingly, Dr Banda reported that, during her examinations, ‘Mr Tipping denied any history of bilateral shoulder, neck or right knee injuries prior to 2007’.[230] She opined that prolonged static postures or an ergonomically unsound work environment ‘may result in temporary soft tissue conditions of the neck and upper limbs’, however remediation of ergonomics and physical treatment ‘usually results in the resolution of symptoms’.[231] In this regard, she was not able to satisfactorily explain why Mr Tipping’s claimed symptoms had not apparently resolved despite extensive treatment, exercise and remediation of any ergonomic deficiencies since he left employment with Defence in 2018.
[227] Ibid., pages 561-576.
[228] Ibid., page 571.
[229] Ibid., page 572.
[230] Ibid., page 571.
[231] Ibid., pages 572-573.
To this end, Dr Banda, together with Dr Bodel, agreed in cross-examination that if the current persistence of Mr Tipping’s symptoms could not be explained by ergonomic factors, that made it less likely that those symptoms had initially been caused by ergonomic factors during his employment with Defence. Moreover, Dr Banda’s diagnoses stand in stark contrast to the essentially normal physical examination she recorded.[232] In this regard, Dr Banda observed that Mr Tipping walked with a normal gait, he sat throughout the assessment without difficulty, there was ‘no asymmetry or muscle wasting in the upper and lower limbs’ and his range of motion of the cervical spine, shoulder girdles and bilateral knees ‘was within normal limits’.[233] Moreover, while Dr Banda was provided by Mr Tipping with a history of his two claimed falls in 2012 and 2013, she agreed in her evidence to the Tribunal that these were unlikely to have significantly contributed to any right knee condition given Mr Tipping had said the 2012 fall had not interfered with his work, he had not sought treatment and had forgotten it and that, in relation to the 2013 fall, he had also not recalled it until reviewing clinical notes for these proceedings. Dr Bodel also agreed, given this background, that these events in 2012 and 2013 were unlikely to have significantly contributed to any right knee condition suffered by Mr Tipping.
[232] Ibid., page 571.
[233] Ibid.
As detailed above in these reasons, Dr Journeaux, Orthopaedic Surgeon, provided a report dated 25 October 2022 following a documentary review of the evidence, but without clinical examination of Mr Tipping.[234] Dr Journeaux opined that, on the medical evidence, Mr Tipping has bilateral shoulder rotator cuff tendinopathy, lumbar spondylosis and right knee osteoarthritis.[235] As with Dr Bodel, Dr Journeaux noted that there was no specific incident or injury giving rise to Mr Tipping’s claimed conditions, and opined that they did not meet the requisite legislative tests under the SRC Act. Dr Journeaux’s evidence was that none of Mr Tipping’s conditions were caused by his employment. Importantly, Dr Journeaux said that it is ‘not reasonable to proffer non-specific controversial diagnoses as being related to work with out [sic] medical evidence in terms of a causation analysis’.[236] To this end, he told the Tribunal that there were a lot of diagnoses in relation to Mr Tipping ‘without good medical evidence for them’, including that of ‘myofascial pain syndrome’. While the Tribunal accepts Dr Journeaux’s evidence, the Tribunal necessarily attributes less weight to this evidence on the basis that he did not physically examine Mr Tipping.
[234] Ibid., pages 114-124.
[235] Ibid., page 122.
[236] Ibid., page 123.
In his second workers’ compensation claim the subject of the 2022 Proceeding, Mr Tipping contended that he suffered what were termed consequential injuries, ‘caused by not getting improved ergonomic setting while following treatment for primary injury’, which included ‘myofascial pain syndrome’.[237] A diagnosis of myofascial pain syndrome was largely made by practitioners that treated Mr Tipping in Thailand, together with another diagnosis of ‘Thai office syndrome’. The only other specialist to have made a diagnosis of myofascial pain syndrome was Dr Praet, Sport and Exercise Physician, in 2022.[238] However, based primarily on Professor Youssef’s experience, specialisation and two comprehensive reports prepared in the proceedings, in contrast to Dr Praet’s minimal written documentation in relation to this condition and the uncertainty of its wider medical acceptance, including as referred to by three other experts who appeared before the Tribunal, the Tribunal accepts and prefers the evidence of Professor Youssef that Mr Tipping does not have such a condition.[239] Essentially, having set out some of the medical literature on myofascial pain syndrome, Professor Youssef reported that upon examination of Mr Tipping he ‘found no evidence of muscle spasm and no trigger points and therefore no evidence of the myofascial pain syndrome’, which is a ‘regional disorder’, noting that Mr Tipping’s ‘symptoms are quite widespread and affect a much larger area than is normally seen in patients given the diagnosis of myofascial pain syndrome’.[240] Professor Youssef told the Tribunal that myofascial pain syndrome is not a neuromuscular disorder and that there are a number of theories in relation to this condition, with its pathophysiology remaining unknown.
[237] Exhibit 3, ST3, page 7.
[238] Exhibit 1, pages 437-438.
[239] Ibid., pages 77-78.
[240] Ibid., page 78.
Dr Praet, in his evidence to the Tribunal, initially acknowledged that his theory of myofascial ‘nerve entrapment’ as an explanation for myofascial pain was not widely accepted in the wider medical community, however he subsequently disputed this proposition. Dr Praet said that he would not expect orthopaedic surgeons, rheumatologists or occupational physicians to necessarily be aware of ‘fascial nerve entrapment’. Dr Praet appeared unwilling to accept Professor Youssef’s evidence that the pathophysiology of myofascial pain syndrome was unknown, although he acknowledged it was labelled a ‘syndrome’ because it is not fully understood and there is no agreement on the diagnostic criteria for the condition. To this end, Professor Youssef referred to the 2020 journal article, ‘Treatment and management of myofascial pain syndrome’,[241] which states that myofascial pain syndrome is a ‘regional pain disorder that affects every age-group and is characterised by the presence of trigger points…within muscles or fascia’, not what Dr Praet referred to as ‘Valleix points’, which trigger points Professor Youssef explained in his evidence are tender points along a particular nerve. The article also stated that ‘the pathophysiology of MPS is still not well understood’.[242] There was no reference to ‘nerve entrapment’ or the later diagnosed ‘so-called post-traumatic myofascial pain syndrome’.[243]
[241] Urits et. al., Best Practice and Research Clinical Anaesthesiology 34, (2020), 427-448 at Exhibit 1, pages 86-107.
[242] Ibid., page 90.
[243] Exhibit 6.
Accordingly, each of Dr Bodel, Dr Banda and Professor Youssef were unfamiliar with ‘myofascial nerve entrapment’ as a medical diagnosis. Dr Bodel told the Tribunal he had ‘never ever heard’, in a medical sense, of a diagnosis of fascial nerve entrapment. Dr Journeaux also stated that myofascial pain syndrome was one of a number of diagnoses ‘without good medical evidence’. Even if it was accepted that Mr Tipping has myofascial nerve entrapment, as diagnosed by Dr Praet, he did not examine Mr Tipping until May 2022. That is, at no stage during his employment with Defence between 2011 and 2018. Dr Praet acknowledged that he had no awareness of Mr Tipping’s ergonomic arrangements or other working conditions during this period, other than what the Tribunal considers to be the less than reliable history provided by Mr Tipping. More specifically, there was no available evidence that ‘Valleix points’ were, or would have been, present during Mr Tipping’s employment with Defence. Although there was evidence of shoulder tendinopathy and bursitis in 2014, based on two ultrasounds from November 2014,[244] Dr Praet in May 2022 found no clear residual signs of those conditions, although he identified ‘Valleix points’ and ‘bilateral shoulder pain’, predominantly said to be caused by ‘fascial nerve entrapment’, well after any workplace ergonomic factors could have remained in play, in circumstances where Mr Tipping has, since 2019, been using ergonomic office furniture at home and been undergoing a range of treatment. Dr Praet’s tests used to identify shoulder issues were either normal or inconclusive and his diagnosis was made by ‘exclusion’, with myofascial pain being the ‘only explanation’. Based on all the available evidence, the Tribunal does not accept that Mr Tipping suffered myofascial pain syndrome or any related condition, such as fascial nerve entrapment, as a result of his employment, or that it was significantly contributed to by his employment, including in relation to any perceived ergonomic deficiencies of his workstation during that employment at Defence.
[244] Exhibit 1, pages 448-449.
In Mr Tipping’s second workers’ compensation claim, lodged in 2022, he also claimed to have suffered an injury to both shoulders.[245] One of the bases for his claim was to do with the ergonomic setting of his workstation. Professor Youssef referred to the aforementioned ultrasounds from 2014 and another in 2017 identifying supraspinatus, tendinopathy and bursitis.[246] As set out above in these reasons, Professor Youssef opined that:[247]
It is not possible that his sedentary work could have caused these changes in the right shoulder but rather that these were related to his sporting activities such as surfing, competitive swimming and water polo…These changes occur after activities requiring movement above shoulder or chest height which were not activities related to his work.
[245] Exhibit 3, ST3, pages 7-8.
[246] Exhibit 1, pages 40-41.
[247] Ibid., page 41.
Dr Bodel in his evidence to the Tribunal agreed with what he said was Professor Youssef’s ‘thoughtful’ assessment. Additionally, both Dr Bodel and Dr Banda agreed that the amount of swimming Mr Tipping was recorded as doing in June 2018 suggested that there was little or no restriction to his shoulders caused by these conditions at that time. For the reasons set out above, the Tribunal accepts Professor Youssef’s testimony that Mr Tipping’s claimed issues with his workstation are inconsistent with the findings of the workstation assessment in 2015, a high workload of sedentary work would not contribute to his shoulder problems and it is highly unlikely changes to Mr Tipping’s desk would cause severe neck, back and shoulder pain. This accords with the preponderance of the medical literature.
Furthermore, Mr Tipping gave a history to Professor Youssef that he developed neck, shoulder and back pain in March 2018 when he was required to remove some archive boxes from a storage room.[248] However, as Professor Youssef recorded, ‘on close questioning, he was only required to lift these boxes on one or two occasions and not for more than a couple of hours’ and Mr Tipping ‘could not recall a specific event that exacerbated his symptoms’.[249] Professor Youssef stated that it is ‘unlikely that this activity would have caused significant damage to his cervical or lumbar region or to his shoulders’.[250] The Tribunal accepts this evidence.
[248] Ibid., page 42.
[249] Ibid.
[250] Ibid.
Mr Tipping also alleged that he suffered an injury during air travel, while carrying a shoulder bag for work and carrying documents. Dr Banda in her report dated 20 July 2022, stated that carrying a ‘heavy work bag on one shoulder for prolonged periods may also result in some irritation of the surrounding tissue’, which appeared to be her acceptance of a right shoulder injury or aggravation.[251] However, the Tribunal prefers the evidence of the other experts on this issue given they explicitly addressed it in their evidence, there was no objective evidence of the weight of any shoulder bag, and also because Dr Banda in cross-examination agreed that any shoulder condition was unlikely to have been significantly affected by Mr Tipping’s employment, including given the persistence of symptoms after the cessation of employment and throughout extensive treatment. Dr Journeaux, Orthopaedic Surgeon, in his evidence to the Tribunal was asked to assume that Mr Tipping, in addition to his sedentary work duties, for a period of some years did fairly extensive travel involving both flying and driving for period of up to six hours or more at a time, carried heavy bags and/or documents and needed to put those items into overhead lockers. This did not alter Dr Journeaux’s opinion that there was no contribution to Mr Tipping’s claimed conditions from his employment with Defence. In addition, Dr Bodel, Orthopaedic Surgeon, told the Tribunal that he did not consider carrying a shoulder bag weighing 15-kilograms would cause permanent damage to a person’s spine or shoulders, although they may temporarily experience some muscle fatigue, discomfort or pain, which would resolve shortly after putting the bag down. In Professor Youssef’s supplementary report dated 14 September 2022, he stated that there was no physical reason why Mr Tipping could not travel, including flying on aeroplanes, and carry bags.[252] Dr Bodel agreed with this assessment in cross-examination. Relatedly, Dr Bodel was the only practitioner to have been given a history by Mr Tipping of injuring his shoulder ‘in about 2014’, ‘when he was assisting a co-worker who was recovering from a heart attack’ by attending the gymnasium ‘to assist this gentleman in his rehabilitation as part of his role with the Department’.[253] Dr Bodel could not recall the details of the history provided to him by Mr Tipping beyond that recorded, and there was no other mention of this claimed incident in any objective evidence before the Tribunal, however it may be assumed that, if this occurred, Mr Tipping was asserting to Dr Bodel that he was undertaking some physical lifting which gave rise to his claimed shoulder injury because it is unclear how he would otherwise have suffered such an injury if he was attending the gym to assist a colleague.
[251] Exhibit 1, page 573.
[252] Ibid., page 75.
[253] Ibid., page 551.
In any event, and for completeness, the Tribunal finds that there was no such shoulder injury but, if it did occur, it was not related to Mr Tipping’s employment, which did not extend to physically assisting a colleague with their own rehabilitation and also because Mr Tipping himself sought to downplay his role by asserting that he only attended the gym with this colleague on six to eight occasions. To this end, and most tellingly, in his written statement in the proceedings, Mr Tipping did not mention any injury as a result of the support he provided to his colleague by attending the gym.[254] Again, there was no other available evidence in relation to this claimed injury. Additionally, on 20 November 2014, in a workplace report it was recorded that Mr Tipping complained of sore shoulders, this occurred at approximately 9.30am, which his supervisor considered was due to inoculation shots Mr Tipping received prior to overseas travel.[255] There was no other reason provided and no additional injuries reported.[256] Mr Tipping was said to have continued with his daily activity on the computer without further reference to this issue.[257]
[254] Ibid., page 669.
[255] Ibid., page 1128.
[256] Ibid.
[257] Ibid.
In summary, Dr Bodel, Dr Hitchen and Professor Youssef diagnosed Mr Tipping with non-specific pain. Dr Banda opined that Mr Tipping suffered from neck pain but did not provide a diagnosis and did not comment on his claimed back pain. Professor Youssef did not consider Mr Tipping was suffering from a musculoskeletal condition. Dr Journeaux opined Mr Tipping was suffering from lumbar spondylosis. The nature and incidents of any claimed physiological change to Mr Tipping’s back and neck have not been established by the evidence. On balance, the medical evidence indicates that any ongoing symptomology suffered by Mr Tipping is inconsistent with the usual progression of soft tissue injuries and/or out of proportion to any physical condition. Dr Hitchen considered Mr Tipping may have postural problems, but that these were constitutional and that Mr Tipping had the option of changing posture when required. Professor Youssef indicated that Mr Tipping’s employment, which was predominantly sedentary, was unlikely to have caused any significant soft tissue injuries. While Mr Tipping has claimed that work, travel requirements and office moves contributed to his claimed conditions, none of Dr Bodel, Dr Hitchen, Dr Journeaux and Professor Youssef diagnosed a specific injury to, or ailment affecting, the back and neck as a result of Mr Tipping’s employment. Dr Banda opined that prolonged static postures may result in temporary soft tissue injuries to the upper limbs and neck, but did not provide specific comment on the cause of Mr Tipping neck and shoulder pain. However, together with Dr Bodel, Dr Banda in her evidence to the Tribunal agreed that given Mr Tipping’s current ongoing complaints of symptoms it was unlikely that his employment with Defence, which ended in 2018, had significantly contributed to them.
In the 2022 Proceeding, Mr Tipping appeared to have taken every diagnosis from any practitioner he has ever seen and included it in his second workers’ compensation claim, along with any minor ailment or complaint he has suffered regardless of any connection to his employment. For example, Mr Tipping’s claim included high ferritin, or iron levels, from ‘increased inflammation caused by body parts misaligning/realigning’.[258] There was no evidence to support this submission or that any such injury was connected to Mr Tipping’s employment. Mr Tipping also claimed he experienced urinary retention ‘from internal organ inflammation caused during treatment/stomach massage’.[259] Again, there was no evidence to support this claimed injury’s connection to Mr Tipping’s employment. Mr Tipping effectively conceded in his cross-examination that there was no evidence to support the contention that these claimed conditions were connected to his employment.
[258] Exhibit 3, ST3, page 8.
[259] Ibid.
The Tribunal accepts the evidence of Professor Youssef, Dr Hitchen, Dr Journeaux and Dr Bodel in support of the contention that Mr Tipping has not suffered from any musculoskeletal or soft tissue injury that was contributed to, to a significant degree, by his employment with Defence. As previously stated in these reasons, Mr Tipping has claimed to have continued to experience symptoms in, among other areas, his shoulder, neck, buttocks, right iliotibial band, right leg, hip, and arms following cessation of his employment with Defence. Professor Youssef found that Mr Tipping’s reported widespread musculoskeletal symptoms were out of proportion with any physical findings, there was an ‘absence of any objective physical findings’ and Mr Tipping continued to report pain following the cessation of his employment with Defence in 2018.[260] As previously set out, Dr Bodel and Dr Banda agreed under cross-examination that these continuing symptoms indicated that Mr Tipping’s previous employment with Defence did not significantly contribute to them. The Tribunal accepts the evidence from all of these experts in this regard.
[260] Exhibit 1, page 77.

Dr Praet diagnosed Mr Tipping in 2022 with ‘fascial nerve entrapment’ and, later that year, with what was termed as ‘so-called post-traumatic myofascial pain syndrome’.[261] There was no support from any other expert for these diagnoses. Based on the balance of the medical evidence before the Tribunal, it is unclear how this latter diagnosis from Dr Praet can be relied upon as a clinical diagnosis of Mr Tipping’s purported condition. To this end, Dr Praet acknowledged that he had no understanding of Mr Tipping’s ergonomic arrangements or other working conditions during his employment with Defence, other than the uncorroborated evidence provided to him by Mr Tipping. More specifically, there was no available evidence that this condition was, or would have been, present during Mr Tipping’s employment with Defence. Professor Youssef, Dr Bodel and Dr Banda did not recognise fascial nerve entrapment as a medical diagnosis. Professor Youssef’s accepted evidence was that, on his assessment, there was no clinical evidence of myofascial pain syndrome and ‘absolutely no evidence’ that Mr Tipping’s sensory nerves were ‘trapped’, ‘damaged’ or evidence of ‘fascial nerve entrapment’ and noted that the associated tests conducted by Dr Praet to identify shoulder issues were either normal or inconclusive. In this regard Dr Praet acknowledged that his diagnosis of Mr Tipping’s pain as being a result of chronic myofascial pain from nerve entrapment was made ‘by exclusion’. On the weight of medical evidence, the Tribunal agrees with Professor Youssef’s opinion that there is ‘no evidence that any work related factor has contributed to his ongoing symptoms and alleged disability’.[262] Based on all of the available evidence, especially the overwhelming medical evidence, the Tribunal is not satisfied that Mr Tipping’s reported pain was contributed to, to a significant degree, by his employment with Defence.
[261] Exhibit 6.
[262] Exhibit 1., page 80.
Did Mr Tipping suffer an ‘injury’ pursuant to the SRC Act?
As set out above in these reasons, section 5A of the SRC Act provides that an ‘injury’ means a ‘disease’ suffered by an employee; or 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 an ‘aggravation’ or a physical or mental injury (other than a disease, that is an aggravation that arose out of, or in the course of, that employment.
For the avoidance of doubt, based on all the available evidence, the Tribunal finds that there was no incident or sudden physiological change or disturbance of the normal physiological state giving rise to ‘an injury (other than a disease)’ or an ‘aggravation’ of such a physical injury suffered by Mr Tipping arising out of, or in the course of, his employment pursuant to section 5A of the SRC Act. The medical evidence set out above did not establish such an injury under the SRC Act. The Tribunal’s consideration is therefore focused on whether Mr Tipping met the requirements of a ‘disease’ under section 5B of the SRC Act.
In order to meet the test of a ‘disease’ under section 5B of the SRC Act, an ‘ailment’ suffered by an employee, or an ‘aggravation’ of such an ailment, must have been ‘contributed to, to a significant degree’, by their employment. As previously noted in this decision, subsection 5B(3) of the SRC Act defines ‘significant degree’ to mean a degree that is ‘substantially more than material’. In Comcare v Power [2015] FCA 1502, the Federal Court of Australia held that a ‘contribution to a degree that is substantially more than material must necessarily be substantially greater than one which is trivial’ and that the purpose of the 2007 amendments to this provision of the SRC Act ‘was to strengthen the connection necessary between the employment and the contraction or aggravation of a disease’.
As the Federal Court held in Beezley, ‘[i]f an applicant does not provide evidence and information sufficient to meet the statutory requirements, an applicant is unlikely to have the statutory power exercised in her or his favour’. Based on the overwhelming weight of medical evidence, set out above in these reasons, the Tribunal is not satisfied that any of Mr Tipping’s claimed conditions were contributed to, to a significant degree, by his employment with Defence, as required by the SRC Act. For the avoidance of doubt, this finding applies to all of the conditions set out in Mr Tipping’s 2019 and 2022 workers’ compensation claims which respectively became the subject of the 2019 Proceeding and the 2022 Proceeding in the Tribunal.
For completeness, the Tribunal’s reasons have considered the matters set out in subsection 5B(2) of the SRC Act that ‘may be taken into account’ in determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment with the Commonwealth. These matters include the duration of the employment; the nature of, and particular tasks involved in, the employment; and any activities of the employee not related to the employment. Having regard to this provision and the evidence set out above in this decision, including the pre-existing injuries to Mr Tipping’s back, neck and right knee, the predominantly sedentary nature of his work, the absence of objective corroboration of the incidents alleged to have occurred during his employment, Mr Tipping’s sporting activities and treatment programs and the post-employment incidents and conditions affecting Mr Tipping, the Tribunal finds that none of Mr Tipping’s claimed conditions were contributed to, to a significant degree, by his employment with Defence.
The Tribunal is therefore not satisfied that Mr Tipping’s conditions meet the requisite test to be found to be a ‘disease’ under section 5B of the SRC Act. Accordingly, for all of the above reasons, the weight of expert medical evidence before the Tribunal demonstrates that Mr Tipping’s claimed conditions were not contributed to, to a significant degree, by his employment.
Is Comcare liable to pay compensation under the SRC Act?
Based on the available evidence, the Tribunal has found that none of Mr Tipping’s claimed conditions were contributed to, to a significant degree, by his employment with Defence. While Mr Tipping may have experienced some pain and other symptoms from time to time at work, and subsequently after his employment ended, this is not sufficient in itself to establish that his claimed conditions were contributed to the requisite degree under the SRC Act by his employment. As set out above in these reasons, the weight of expert medical evidence does not establish that Mr Tipping’s conditions were contributed to, to a significant degree, by his employment with Defence. Again, for the avoidance of doubt, and as set out above in these reasons, the Tribunal accepts this evidence. As a result, the Tribunal finds that Mr Tipping has not suffered a ‘disease’ under section 5B of the SRC Act and therefore has not suffered an ‘injury’ pursuant to section 5A of the SRC Act. For these reasons, Mr Tipping’s claims in the 2019 Proceeding and the 2022 Proceeding for compensation under the SRC Act are unsuccessful. Accordingly, the Tribunal finds that Comcare is not liable to pay compensation to Mr Tipping pursuant to section 14 of the SRC Act.
DECISION
The Tribunal affirms the decisions under review pursuant to subsection 43(1)(a) of the AAT Act.

I certify that the preceding 213 (two hundred and thirteen) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.

...........................[SGD].............................................
Associate
Dated: 22 March 2023

Date(s) of hearing:

5 and 7 December 2022 and 23-24 February 2023

Date final submissions received:

23 November 2022

Applicant:
In person

Counsel for Respondent:

Mr Brendan Kelly

Solicitors for Respondent:

Mr Joseph Everdell, Moray & Agnew Lawyers

[2023] AATA 457

22 March 2023

Key Legal Topics

Areas of Law

Employment Law

Administrative Law

Legal Concepts

Causation

Statutory Construction

Judicial Review

Appeal

Date(s) of hearing:	5 and 7 December 2022 and 23-24 February 2023
Date final submissions received:	23 November 2022
Applicant:	In person
Counsel for Respondent:	Mr Brendan Kelly
Solicitors for Respondent:	Mr Joseph Everdell, Moray & Agnew Lawyers