Wirth and Comcare (Compensation) - [2020] AATA 29

Wirth and Comcare (Compensation) [2020] AATA 29 (14 January 2020)
Division:GENERAL DIVISION
File Numbers: 2016/5274 and 2018/7300
Re:NATALIE WIRTH
APPLICANT

AndCOMCARE
RESPONDENT

DECISION
Tribunal:R CAMERON SENIOR MEMBER
Date:14 January 2020
Place:Melbourne

The Tribunal sets aside the decision in relation to application 2016/5274, and in substitution orders:
1. The Applicant has continued to suffer from 10 June 2016 to the present date, from the effects of the injury identified as:
(a) Subacute avulsion fracture of the great cubicle of the proximal humerus right side;
(b) Severe rotator cuff pathology right side with tears of the supraspinatus muscle, biceps tendinosis and superior labral tear and signs of glenohumeral osteoarthritis responsible for pain and movements restriction in the right shoulder joint:
i.sustained on 20 November 2009, arising out of her former employment with the Bureau of Meteorology, resulting in a need for medical treatment pursuant to section 16 of the Safety, Rehabilitation and Compensation Act 1988.

2. In application 2016/5274, the Respondent shall pay the Applicant’s costs and disbursements in respect of the proceedings pursuant to section 67 of the SRC Act.
The Tribunal extends the time in which the Applicant may request reconsideration of the decision in relation to application 2018/7300 to 10 October 2018.
The Tribunal affirms the decision in relation to application 2018/7300.
........................[sgd]................................................
R CAMERON SENIOR MEMBER
Catchwords
COMPENSATION – injuries to shoulder and knee – whether arising out of or in the course of employment – evidence of pre-existing degenerative change – subsequent incidents that affected the injury – impact of age and weight on conditions – whether conditions still related to employment – first reviewable decision set aside – second reviewable decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975
Safety, Rehabilitation and Compensation Act 1988
Cases
Briginshaw v Briginshaw (1938) CLR 336
Comcare v Porter (1996) 70 FCR 139
Griffiths v Australian Postal Corporation (2018) 158 ALD 298
Secondary Materials
Peter Sutherland, John Oman Ballard and Allan Anforth, Annotated Safety, Rehabilitation and Compensation Act 1988 (Federation Press, 11^th ed, 2018)
REASONS FOR DECISION
R CAMERON SENIOR MEMBER
14 January 2020
INTRODUCTION

There are two applications before the Tribunal.
The first application (2016/5274) seeks a review of a decision made by a Review Officer of Comcare (“the Respondent”) on 18 August 2016 affirming a previous decision denying the Applicant medical expenses under section 16 of the Safety, Rehabilitation and Compensation Act1988 (“SRC Act”) for an injury described as rotator cuff strain (right) and sprain of the shoulder and upper arm (“the first reviewable decision”).[1]
[1] The first reviewable decision is document T 55 of the T documents (Exhibit R-1).
The second application (2018/7300) seeks review of a decision made by a Review Officer of the Respondent on 12 October 2018 affirming a previous decision refusing an extension of time to lodge a request for reconsideration of a previous determination made that the Respondent was not liable for a total left knee replacement under section 16 of the SRC Act (“the second reviewable decision”). [2]
[2] The second reviewable decision is document ST 40 of the ST documents (Exhibit R-2).
SOME RELEVANT FACTS
At all times relevant to these applications, the Applicant was employed as an administrative service officer by the Bureau of Meteorology, having been employed there since February 2002. She was retrenched in 2013. In her evidence she stated that she performed “payroll duties” and was primarily involved in data processing and keyboarding working approximately 37 hours per week.
There are two incidents concerned which the Applicant contends gave rise to the injuries to her right shoulder and left knee which are the subject of these applications.
The November 2009 Incident
The first incident occurred on 20 November 2009. The Applicant sustained an injury to her right shoulder upon exiting a lift situated in the Bureau of Meteorology at Level 5, 700 Collins Street, Melbourne.
The Applicant’s evidence was that Level 5 was the street level of the building housing the Bureau of Meteorology. She worked on Level 7. It was the end of the working day (she estimated that the event occurred at approximately 3.58 PM) on a Friday, and she had done all of her work for the day. She was carrying a big envelope containing pay slips which had to be dispatched to Tasmania. Her version of this was challenged to some extent in cross examination. It was put to her in cross examination that the Bureau of Meteorology had advised the Respondent that as far as it was aware, there was no reason for the Applicant to be delivering documents on level 5. Largely, the foundation for this cross examination reflected the contents of a letter found in the T documents from the Compensation and Rehabilitation Officer of the Bureau of Meteorology to Comcare, dated 2 December 2009.[3] That letter stated that the Applicant's direct supervisor at the Bureau of Meteorology had advised the officer that the Applicant had not been allocated duties that would require her to take mail down to the Registry/Mail Centre on Level 5. In support of this contention the author of the letter referred to the fact that the Bureau of Meteorology had an internal mail pickup and delivery service. Another factor raised in that letter was that the Applicant “signed off on her Flex Sheet at 4 PM on Friday 20 November [2009]” which was a normal sign off time. This was put to the Applicant and she denied the assertions. It should be noted that the supervisor was not called to give evidence. No explanation was given as to why the supervisor did not give evidence. Given the failure to call the supervisor on this question, the Tribunal infers that her evidence would not have assisted the Respondent.
[3] Document T 7 of the T documents.
It was also suggested that the Applicant was running to catch an early train home having finished her duties for the day. She strongly disputed this assertion and gave evidence on oath that part of her duties was to dispatch pay slips to regions. The Applicant stated it was what she was entrusted to do. The envelopes concerned were placed in pigeon holes in the Registry offices every fortnight. Her intention was to drop the envelope off with the Registry on the ground level at Collins Street, and then having done that, finish work and catch a train at Spencer Street Station. Her evidence was that as she exited the lift, she slipped on a very hard, shiny floor surface, falling on her right shoulder. She described the pain as excruciating. After falling, she picked herself up and completed the task of delivering the large envelope to the Registry. She was probed during cross examination as to whether she made a report to anyone at the Registry immediately after the fall. Her response was that she did not think she had made a report to anyone in the Registry about what happened. She stated that this was because at the time, she had not realised what she had done to her shoulder. (In an undated statement to Comcare responding to a question why she did not report the incident, nor sought treatment on the day it occurred, she responded that she did not think she had sustained any severe injuries and thought that the pain would ease in a few hours’ time.[4]) She described it in other terms as that she did not know the degree of her injury. She described the pain in her right shoulder increasing as the nights and days subsequently passed. It developed to a stage where she said her right shoulder was extremely painful. She reached a point where she could not sleep as the pain in her shoulder worsened. It was in her words “getting serious”.
[4] The undated statement is document T 8 in the T documents.
A sleepless night caused by an extremely painful shoulder prompted the Applicant to attend the Emergency Department of the Maroondah Hospital for treatment on the following Sunday morning at 6.00 AM.
Her evidence from the witness box before the Tribunal was largely consistent with the accounts that she had given in contemporaneous documents made by her shortly after the incident. Those documents were the “Notification of Accident” made on 23 November 2009,[5] the “Claim for Workers’ Compensation” made on 30 November 2009[6] and a comparatively detailed statement “Re-Claim Number: 911977/3” which has endorsed upon its bottom right-hand footer the date of 21 December 2009.[7]
[5] Document T 4 of the T documents.
[6] Document T 5 of the T documents.
[7] This statement is document T 8 of the T documents. In the index to those documents it is described as "Undated" however, as noted, there is the endorsement in the bottom right-hand footer of the document with the date of 21 December 2009. Although not probed in evidence by either party the Tribunal considers that it is more probable than not that the statement was made on or about that date. The Applicant adopted it in the witness box.
The Applicant gave evidence that she had not, prior to the fall on 20 November 2009 when her right shoulder was injured, experienced any symptoms, dysfunction or pain in that shoulder.
She made a report of the fall on the following Monday, 23 November 2009.[8]
[8] The notification of the accident was document T 4 of the T documents.
A workers’ compensation claim was made for the right shoulder injury on 30 November 2009.[9]
[9] The Claim for Workers’ Compensation made by the Applicant is document T 5 of the T documents.
On 15 January 2010 Comcare accepted liability to pay compensation pursuant to section 14 of the SRC Act for rotator cuff (capsule) strain (right) (mild tear); and sprain of shoulder and upper arm (right). In accepting a claim made by the Applicant one of the reasons recorded in the decision was that Dr Bruce Rowe had opined that the injury was caused by a fall at work.[10]
[10] The letter accepting the Applicant’s claim and attached statement of reasons is document T 15 of the T documents.
The November 2012 Incident
The second incident occurred on the morning of 28 November 2012 when in the course of her employment the Applicant was walking from the Bureau of Meteorology’s offices at 700 Collins Street to a training session being conducted by her employer in offices situated in La Trobe Street. Having started work in the Collins Street offices she was due at the training session in La Trobe Street which commenced at 9.00AM. The trip between the two offices normally took her approximately 15 minutes. 700 Collins Street is situated in the “Docklands” precinct of Melbourne’s Central Business District. In her evidence she described the route that she took between the two locations which included traversing several fairly lengthy and relatively steep sets of stairs located on, or around, what was then known as “Etihad Stadium”.[11] This required her to walk up and walk down a level again. She described herself as walking fast, taking brisk strides. She was running late and wanted to get to La Trobe Street on time for the training session. Whilst walking to the La Trobe Street premises, she gave evidence that she felt a twinge and acute pain in her knee that later swelled.
[11]A multi-purpose sporting and entertainment venue predominantly used for playing Australian Rules Football. It is now known a “Marvel Stadium”.
The Applicant’s evidence concerning this incident also largely accorded with the contents of documents that were in evidence made shortly thereafter. Those documents were an email of 2 January 2013 that she sent to her employer,[12] an injury report made on 7 January 2013[13] and the contents of her “Claim for Workers’ Compensation” made 11 February 2013.[14]
[12] Document ST 7 of the ST documents.
[13] Document ST 8 of the ST documents.
[14] Document ST 10 of the ST documents.
The pain in the Applicant’s left knee apparently did not subside. She recalled returning to Southern Cross Station at the end of the day with a colleague. She stated that at one time during the course of the walk she felt excruciating pain when she turned. She was unable to keep up with her colleague as they walked; she put it down to the earlier incident.
The Applicant’s evidence was that in the two to three years prior to that day, she had not felt any symptoms, including pain or swelling, in her left knee.
The Applicant stated that she did not see a doctor immediately after the incident as she thought that the pain “would go away”. Unfortunately it did not, and she decided to consult Dr Kelvin Kan, general practitioner, on 7 December 2012.
On 18 January 2013 the Applicant made a claim for compensation for injuries to her left knee said to have been caused by the incident on 28 November 2012.[15]
[15] Ibid.
On 8 April 2013 Comcare accepted the claim.[16] The accepted claim allowed for reasonable medical treatment resulting from the injury to her left knee up to and including 8 April 2013, and time off work resulting from the injury from 27 December 2012 up to and including 25 March 2013.
[16] Document ST 20 in the ST documents.
CHALLENGES TO THE APPLICANT’S VERSION OF EVENTS AND HER CONDITIONS
The Respondent challenged the Applicant’s version of events, her description of her conditions, and their effects in several ways.
One approach adopted by the Respondent was to produce, and put to the Applicant, medical records and reports produced on summons. These records revealed inconsistencies between what several treating healthcare professionals had recorded, the description given by the Applicant in her viva voce evidence, and in other contemporaneous documents adopted by the Applicant concerning the two incidents. More will be said about these inconsistencies in these reasons shortly.
Falls subsequent to the November 2009 incident affecting the Applicant’s right shoulder were explored and highlighted by the Respondent.
Another approach adopted by the Respondent was to produce, and put to the Applicant, a number of documents, that had been produced upon summons, which showed a history of difficulties with her knees including the left knee.[17] She was carefully, searchingly and properly, cross examined on these matters. These documents revealed a medical history concerning both knees from at least 2004. More will be said about this fact in these reasons shortly.
[17] These documents were conveniently bound together in an indexed and paginated bundle. It will be hereinafter referred to as: “the Respondent’s tender bundle.”
The shoulder injury inconsistencies in the evidence
After falling and injuring her shoulder as described previously, the Applicant consulted the physiotherapist Andrew Seymour of Physica Spinal and Physiotherapy Clinic. A bundle of documents was tendered in evidence that had been created by Mr Seymour.[18] They included clinical notes concerning a diagnosis of the Applicant dated 23 November 2009, being her date of admission. The diagnosis notes record that she fell onto her elbow on a Saturday, twisting on her ankle and experiencing pain in her shoulder. She was asked in cross examination why Mr Seymour would have recorded the fall being on a Saturday. She could not explain this discrepancy other than to say that she was not working on the Saturday and that Mr Seymour had recorded that part of the history she gave him incorrectly. She repeated that the injury or incident had occurred on the Friday which was a working day. The Tribunal accepts the Applicant’s evidence on this matter.
[18] Exhibit "R-5".
Another discrepancy highlighted by the Respondent in cross examination arose from an examination of clinical notes of 22 November 2009, prepared by a medical officer of the Emergency Department at Maroondah Hospital.[19] Those notes record a fall occurring “3/7 days ago”. The Applicant was asked if that was a history that she had given the hospital; she stated that it must have been. She further stated that she did not know what “3/7” actually meant. However, when searchingly probed, she stated she was certain whatever appeared on the records of the hospital (or for that matter in the physiotherapist’s clinical notes referred to previously in these reasons), the incident occurred on the previous Friday. This response was consistent with another page of clinical notes from Maroondah Hospital that were in evidence and contained an entry that the Applicant “Had a mechanical fall on Friday-landed on R elbow”.[20] She stated that she had no idea why there was a divergence between the physiotherapist’s notes and one of the hospital’s clinical notes concerning the date of the fall. The Tribunal accepts the Applicant’s evidence on this matter particularly in the light of the other hospital clinical notes containing an entry consistent with her evidence on the date of the fall.
[19] The relevant page of the clinical notes were in evidence as exhibit "R-6".
[20] This note is to be found on page 9 of the Respondent's tender bundle.
On 28 May 2010 Dr Nick Van Wetering, an exercise and sports physician, prepared a report to the Applicant’s treating general practitioner, Dr Karen Lee.[21] Dr Van Wetering recorded that an examination of the Applicant’s shoulder revealed an excellent range of movement with respect to abduction and flexion, with some mild restriction of both external rotation and internal rotation. He concluded that overall, the Applicant did not have a disability and her shoulder was improving slowly over time. The Applicant recalled seeing Dr Van Wetering at that time and readily conceded that insofar as her right shoulder was concerned it was then in relatively good health.
[21] The report is document T 22 in the T documents.
On 1 October 2010 Dr Van Wetering prepared a report which recorded that as at that date and examination confirmed full movement with a mild weakness of resisted abduction, empty can testing, lift-off testing and biceps function.[22] There was also observed a mild positive impingement sign. Her condition was described as stable. It observed that the Applicant had trouble lifting above her head height and that because of this she should be restricted from any overhead duties. He opined that it may be an indefinite restriction for the purposes of protecting her shoulder. The Applicant acknowledged seeing Dr Van Wetering on that date. She did not really challenge his conclusions other than on some occasions qualifying her response by saying that her right shoulder was not always problem free. The Tribunal accepts this evidence of the Applicant.
[22] Page 14 of the Respondent's tender bundle.
On 16 November 2010 Dr Van Wetering prepared another report.[23] The contents of that report are referred to in their entirety for their full force and effect. The report states that he conducted an examination of the Applicant’s shoulder which revealed that “she had a good range of movement with respect to abduction and flexion, with some mild restriction of external rotation and internal rotation.” He concluded that with respect to prognosis, because there was a spur, the possibility existed that the rotator cuff could further degenerate and might require surgery in the form of: “arthroscopic assessment, acromionectomy with removal of subacromial spur, inspection of rotator cuff, decompression of any bursal tissue and possible repair of rotator cuff damaged tissue if amenable or relevant.” It was stated that this had been discussed with the Applicant but that her preference was to continue with the current treatment regime. The Applicant’s evidence in the witness box was that she did not recall having that discussion with Dr Van Wetering. She said her right shoulder was not always back to normal.
[23] Document T 17 of the T documents.

At pages 15, 16 and 17 of the Respondent’s tender bundle there were clinical notes of Dr Lee attending the Applicant on 25 August 2011, 15 December 2011 and 29 May 2012. The first examination revealed a full range of movement in the right shoulder except a mild decrease in internal rotation. The second attendance recorded shoulder pain had settled a bit and was back to normal. The Applicant said she disagreed with that entry. The last entry states that the right shoulder still gave her pain at times, with an almost full range of movement except for internal rotation. The Applicant stated she did not think it was an accurate report. Her response was that her shoulder gave her pain sometimes and was pain free at other times. The notes did show some reference to ongoing right shoulder pain. It was not back to normal.
Another specialist report in evidence before the Tribunal was that of Damian Ireland, a hand and upper limb surgeon (who did not give evidence at the hearing of the application), dated 2 April 2013. In that report Mr Ireland observed that the Applicant complained of “occasional pain” generally affecting her right shoulder. The duration of this pain was usually two to three hours at a time approximately twice a month. He observed that the pain could be provoked by stirring movements when working in the kitchen or sleeping on her right shoulder. He had taken a history from her and she had stated that at that time, she felt her shoulder was approximately 80% better than it had been following the injury arising from the November 2009 incident. Although this was not put to the Applicant it was not, to some extent, inconsistent with much of the evidence she gave concerning some of the symptoms she experienced as have been described previously in these reasons.
In a letter of instruction, Mr Ireland was asked what specific condition the Applicant was suffering. His diagnosis was that she suffered from intermittent rotator cuff tendonitis at the right shoulder. He stated that the condition had been initiated by a single traumatic incident (the November 2009 incident), which resulted in an avulsion fracture of the attachment of the supraspinatus muscle at the right shoulder. He concluded that the symptoms from the conditions were minimal as are the objective examination findings. He concluded that the condition had stabilised and no further treatment was indicated.
Subsequent falls affecting the right shoulder
The Respondent also identified several subsequent events, mostly falls, which it submitted were relevant to a determination of the matters with respect to her right shoulder in this application.
On 3 September 2016 the Applicant attended the Maroondah Hospital Emergency Department again. The clinical notes of that attendance were in evidence.[24] The notes record that the Applicant was walking inside her house up a gradual incline, tripped and fell landing on her right shoulder tip. The symptoms were intense shoulder pain immediately and reduced range of movement. She stated that she felt horrible pain. The clinician’s notes recorded that on examination there was possible sagging or dislocation of the right shoulder. The Applicant gave evidence that the pain in the right shoulder was worse than it had been in the past. She also stated that prior to that occasion there had been times of limited pain symptoms and a range of movement that was to some extent restricted.
[24] Pages 47–54 of the Respondent's tender bundle.
Following the fall in September 2016, a right shoulder ultrasound was undertaken.[25] That report revealed a large chronic full thickness tear of the supraspinatus extending into the infraspinatus tendon. It was observed to have increased in size since the previous study on 30 March 2016. In her evidence, the Applicant said this was confirmed in a conversation she had with another general practitioner she was seeing at that time, Dr Sim Aung.
[25] Page 58 of the Respondent's tender bundle.
The Applicant was referred to another orthopaedic surgeon, Mr Warwick Wright, who prepared a report on 20 September 2016.[26] Mr Wright confirmed the findings of the ultrasound and observed that the Applicant had a long-standing supraspinatus tear. He stated that a fall she experienced two weeks beforehand led to an increase in the tear, together with a dislocated biceps and partial tear of the subscapularis. He concluded that the ultrasound demonstrated that the Applicant suffered from a massive rotator cuff injury.
[26] Page 59 of the Respondent's tender bundle.
The Applicant suffered a further fall in October 2018. She consulted Dr Yu He the following day. He recorded that she tripped over roots, fell backward onto her right elbow, and experienced grazes on the right elbow with right shoulder pain.[27] A further x-ray and ultrasound of the right shoulder were undertaken on 25 October 2018.[28] The report revealed a complete rupture of the supraspinatus. The Applicant gave evidence that she did not recall her doctor providing her with the results of the x-ray and ultrasound to her.
[27] Dr Yu’s clinical notes are at page 80 of the Respondent's tender bundle.
[28] The results of the x-ray and ultrasound of the Applicant’s right shoulder are on page 82 of the Respondent's tender bundle.
Following the results of the x-ray and ultrasound on her right shoulder, the Applicant was referred to Mr Austin Vo, an orthopaedic surgeon. A report from Mr Vo was in evidence.[29] He had taken her history including the history of the fall in 2009. He recorded that since that incident she has had gradually worsening pain and weakness. His conclusion was that further investigation should be undertaken to assess the extent of the pathology of the shoulder. That would determine whether the rotator cuff was repairable. He opined that if it was not repairable, the Applicant’s only option would be a reverse shoulder replacement. His final assessment contained in a letter on or about 27 February 2019[30] provided a review after updated CT and MRI scans. The scans confirmed a massive irreparable rotator cuff tear in the setting of glenohumeral joint arthritis. His conclusion based on that was rotator cuff tear arthropathy. The Applicant had developed osteoarthritis as a result of a massive and irreparable long-standing rotator cuff tear.
[29] Page 85 of the Respondent's tender bundle.
[30] Page 87 of the Respondent's tender bundle.
The knee injury inconsistencies in evidence
The Applicant consulted her general practitioner Dr Kan on 7 December 2012. His clinical notes of that attendance were in evidence.[31] This consultation was approximately one week and two days after the incident with her left knee occurred. Dr Kan’s clinical notes make no record of the Applicant informing him that the injury to her left knee occurred while she was at work or was otherwise work related. The Respondent’s counsel put to her that one would have expected her to have told her treating general practitioner that the injury to her left knee, at the very least, occurred during working hours or was work related.
[31] Document ST 13 of the ST documents.
The Applicant’s evidence in response to these questions was several fold. She stated that she always tries to be conservative with all her aches, pains and injuries. She stated that it took a good week to realise that she had a problem. She thought it would “go away” but it did not. When her condition in the left knee did not improve it prompted her to consider what the cause was. She stated she knew on the day in question that she had suffered an injury walking between the Bureau of Meteorology’s Collins Street offices and the La Trobe Street premises where the training seminar was held. She associated the injury with work following her ultrasound and diagnostics on the knee concerned. She could not explain why she did not tell Dr Kan that the injury to her knee occurred at work or was work related.
In 2017, the Applicant undertook a journey to South America which included a voyage on a ship. Clinical notes, a medical report and her own evidence from the witness box reveal that whilst on the ship she fell on her knees on several occasions.[32]
[32] The clinical notes of a consultation with a general practitioner on 16 November 2016 and a report of Associate Professor Coughlin a haematologist of 21 November 2016, where the Applicant provided details to her treating doctors about the journey and her falls are contained in the Respondent's tender bundle.
Following the falls on the cruise ship, the Applicant was referred to another orthopaedic surgeon, Craig Donohue. On 19 December 2016, he prepared a report addressed to the Applicant’s general practitioner Dr Aung.[33] Relevantly for this application Mr Donohue noted that the Applicant informed him that she had “some left knee troubles many years ago”. An arthroscopy was performed by Mr John Harris. He recorded that she had made a full and complete recovery and that her knee returned to normal.
[33] This report of Mr Donohue is at page 69 of the Respondent's tender bundle.
Another report from Mr Donohue addressed to Dr Aung was in evidence.[34] It is undated, but appears to have been prepared after the 19 December 2016 report that he also sent to Dr Aung. Once again in that report, Mr Donohue records that the Applicant informed him that she had some left knee troubles many years ago. It is recounted that an arthroscopy was performed by Mr Harris. Again it is stated that the Applicant made a full and complete recovery and her knee “returned to normal”. Mr Donohue recorded that the Applicant informed him that she had been on a cruise ship “a couple of months ago when she had multiple falls”. She injured her left knee. She found it hard to walk and came off the cruise early because of the left knee pain. Critically, he also observed that since then the Applicant’s left knee had improved, but it was still not right. The symptoms that she was experiencing were recorded. He ordered further MRI scans.
[34] Exhibit "A-5".
On 10 April 2017, Mr Donohue prepared another report which was in evidence before the Tribunal.[35] In that report he stated that the Applicant had ongoing left knee medial more than lateral pain. He recounted a “left knee work injury in 2013” and the subsequent arthroscopy performed by Mr Harris. He observed that the Applicant “never fully recovered from the injury and from the surgery”. These observations of the Applicant’s patient history recorded in Mr Donohue’s April 2017 report are inconsistent with those contained in his December 2016 report.
[35] This report of Mr Donohue is at page 70 of the Respondent's tender bundle.
Previous symptoms in the left knee
There were a number of matters put to the Applicant in the course of her cross examination concerning the history of previous symptoms in her left knee.
In the month of July 2004 the Applicant was referred by Dr Jan Parker, a general practitioner that she consulted around the time, for x-rays on both knees. The report of those x-rays was in evidence.[36] It was put to her in cross examination that if she had an x-ray on both knees it was likely she had complained about an issue concerning both of them. She conceded that could have been the case.
[36] Page 1 of the Respondent's tender bundle.
In December 2004 the Applicant was referred to orthopaedic surgeon, Mr Graham Lowe. He provided a report to Dr Alan Cunneen who was her usual general practitioner at that time.[37] In cross examination she said she did not recall experiencing problems with both knees. The report from Mr Lowe states that she was seeking a second opinion regarding the management of her knee symptoms. The penultimate paragraph of that report stated that since seeing another orthopaedic surgeon she had developed symptoms in her left knee and at times these have been as severe as the right. This occurred mainly when she was using stairs and standing for any period of time. In her evidence she stated that that portion of Mr Lowe’s report was not accurate. She even went so far as to say that she believed the radiographer had made an error. Otherwise, she did not have an explanation for Mr Lowe’s analysis.
[37] The report of Mr Lowe is on page 2 of the Respondent's tender bundle.
An MRI report was in evidence dated 20 January 2005. That report under the heading “Clinical data” recorded: “Acute chronic left knee pain”. The Applicant stated that she considered this report was incorrect, and in fact describing the other knee. She stated this was a perpetuation by the radiographer of the mistake previously referred to. When it was specifically put to her that this MRI was undertaken because of her complaint of pain in the left knee during a consultation in December 2004, she stated that she did not recall. Mr Lowe furnished a further report to Dr Cunneen on 4 February 2005 specifically referring to symptoms in the Applicant’s left knee.[38]
[38] That report of Mr Lowe is on page 4 of the Respondent's tender bundle.
Another x-ray report concerning both knees dated 3 April 2006, addressed to another general practitioner consulted by the Applicant Dr Atef Abdelmalak, was in evidence.[39] The report of that x-ray concerning the left knee recorded significant changes of osteoarthritis involving the medial compartment of the knee. It also recorded a complete cartilage loss with bone on bone articulation on the medial joint margin. The Applicant in cross examination stated she recalled those x-rays being undertaken on both knees. Again, she stated the report was incorrect and that the radiographer had made a mistake. She did not know if she had been told that the left knee had symptoms of osteoarthritis. She was told that it was mild in one knee and there was “some” in the other.
[39] That report of x-rays to both knees taken on 1 April 2006 is on page 5 of the Respondent's tender bundle.
There was also a report dated 21 April 2006 recording x-rays having been undertaken on both knees.[40]
[40] That report is on page 6 of the Respondent's tender bundle.
A referral dated 31 March 2006 from Dr Abdelmalak to an orthopaedic surgeon Reinhart Wuttke was in evidence.[41] The referral refers to pain in both knees. The Applicant stated that she did not remember discussing both knees she only remembered discussing her right knee.
[41] Exhibit "R-8"
A further referral dated 7 April 2006 to Mr Lowe was also in evidence.[42] That referral records a history of pain in both knees, albeit that it was worse on the right-hand side. When confronted with this observation the Applicant stated she accepted that she had been wrong.
[42] Exhibit "R-9".
A letter from Mr Phillip Levin, a physiotherapist who the Applicant had attended, to Dr Abdelmalak dated 3 March 2007 was also in evidence.[43] In that letter Mr Levin records that the Applicant was still having some dysfunction in her left knee. When this was put to her as accurately reflecting the pain that she was experiencing in her left knee, she stated she would agree that she probably had such a pain as described.
[43] Exhibit "R-10".
An x-ray report of both knees dated 3 December 2008 and addressed to Mr Wuttke was in evidence.[44] That report found that there were osteophytes which were typical of osteoarthritis. When confronted with this fact in the witness box the Applicant conceded that she had no reason to doubt that she had consulted Mr Wuttke about pain in both knees.
[44] The report is to be found on page 7 of the Respondent's tender bundle.
Another x-ray report for both knees dated 21 November 2008 and addressed to another general practitioner the Applicant had consulted on or about that date was also in evidence.[45] That report recorded that there was moderate osteoarthritis seen in both knees involving the three compartments. It was more prominent in the right knee. In cross examination she conceded that these findings were possible.
[45] That report is to be found on pages 7 and 8 of the Respondent's tender bundle.
It was then put her in cross examination that she had been taken in some detail to symptoms experienced in her left knee over a five-year period. It was further put to her that she could not help but to have recalled this fact when she filled out the claim form in relation to the knee injury and lodged it with Comcare. Her response was to say that she had been going through very stressful times and had forgotten. She responded to very specific questions that she had forgotten her extensive history of left knee problems and that she had seen doctors and physiotherapists over that period of approximately five years. To each question she repeatedly said that she had forgotten. She also stated that she had completely forgotten about seeing Mr Wuttke.
SOME OBSERVATIONS ON THE APPLICANT’S DEMEANOUR AND HER EVIDENCE
The Tribunal had the opportunity to observe the Applicant in the witness box over several hours. In addition to her evidence in chief, she was cross examined searchingly, carefully and professionally. It is quite fair to say that no stone was left unturned by Mr Snell on behalf of the Respondent to expose several inconsistencies and/or weaknesses in the Applicant’s evidence in her case. The cross examination also specifically targeted matters relevant to a consideration of whether or not the exclusionary provisions of section 7 (7) of the SRC Act applied to representations made in the Claim for Workers’ Compensation form completed by the Applicant with respect to the injury to her left knee.
There is no doubt that there were several inconsistencies in the Applicant’s evidence which have been explored in these reasons. The Tribunal acknowledges these inconsistencies and/or weaknesses in her evidence. It does not however, believe that she was fundamentally an unreliable witness. She was not an untruthful witness. It was apparent to the Tribunal that she was a stranger to the witness box, and of course had no familiarity with legal processes. She was initially educated to a relatively limited level[46] and it would not be unkind to her to say that she was comparatively unsophisticated, in both a legal and commercial sense. Whereas someone more experienced, or versed in the world of litigation, and legal niceties might well have paid more attention to detail in many respects applicable to this case, it is understandable observing the Applicant that she did not do so. Concerning the completion of the Claim for Workers’ Compensation Form (among other aspects of her evidence), it seems more probable than not, that given a relatively limited level of sophistication, she believed that simply filling out a claim form with respect to the injury to her left knee that she says she suffered due to the November 2012 incident, was all she needed to do. It probably never occurred to her that many years after the events concerned, she might wind up in a witness box being probed by experienced counsel about all manner of matters, including whether or not she had advised her general practitioner that the incident concerned occurred in the workplace; or for that matter her history of left knee problems which she believed had been resolved some years ago, as misguided as this might be. Overall, whilst her evidence at times can be described as somewhat vague, or perhaps “woolly”[47], the Tribunal accepts her evidence.
[46] There was evidence before the Tribunal that she left school at the age of 15 having completed the Intermediate Certificate. For most of her working life she has occupied clerical positions. It should be acknowledged that subsequent to her leaving the Bureau of Meteorology she completed a degree at Deakin University. However, the degree did not have a commercial or legal dimension to it. Her subsequent access to higher education does not appear to have given her any more advanced level of legal or commercial capacity.
[47] The Applicant's counsel in his written outline of closing address and in his submission put it another way, in that the Applicant appeared and “sounded confused” at times when responding to questions put to her. By way of example he noted that the Applicant had wrongly assumed that two determinations sent by the Respondent to her dated 10 June 2016 related to the same injury. This was relied upon as support for his contention about her overall demeanour and credibility. The Tribunal accepts this contention. It was one example of her failure to comprehend some aspects of the process and the events concerned (including the seriousness of the claims procedure).

Another matter that was apparent to the Tribunal that emerged from the course of the evidence was that none of the medical witnesses contended that the Applicant was anything other than genuine and truthful to them. Indeed, medical witnesses such as Mr Haig, called by the Respondent, specifically stated in evidence to the Tribunal that he had no doubts about the genuineness of the Applicant. This applied to her account of the facts, the symptoms, and the medical history she reported to them.
The above observations about the overall credibility of the Applicant should however be qualified in two respects. The first one is that when the Applicant saw several specialists, including Mr Russell Miller retained by her solicitors, Mr Ronald Haig, Dr James Khursandi and Dr L Wijetunga, she did not inform them of the prior history of left knee symptoms that she experienced between 2004 and 2009.
Secondly, the Applicant did not inform Mr Miller and Mr Haig of the subsequent falls that she experienced after the November 2009 incident and the November 2012 incident.
Both the previous history of left knee symptoms and the subsequent falls were matters that are highly relevant to any medical specialist conducting an examination of her and preparing a report.
ISSUES FOR DETERMINATION
Each party to the applications has identified several issues for determination. The formulation developed by each of the parties does differ in some respects. Therefore, it is appropriate to refer to each of the issues developed by both parties in full.
In the first application concerning the Applicant’s right shoulder, the Applicant identified the following issues:[48]
(a)Whether the injury to the right shoulder sustained on 20 November 2009 occurred in the course of her employment with the Bureau of Meteorology.
(b)Whether the injury to the right shoulder sustained on 20 November 2009 has resolved.
(c)Whether the Applicant’s current right shoulder condition is contributed to, to a significant degree, by her employment with the Bureau of Meteorology, and accordingly whether the Applicant still suffers from an “injury” as defined in the SRC Act.
(d)Whether the Applicant has reasonably required since 10 June 2016 to date, medical treatment under section 16 of the SRC Act in respect of the right shoulder injury sustained on 20 November 2009.
[48] These issues were articulated in the Applicant’s “Outline of Applicant’s Closing Address” prepared by her counsel.
The Respondent identified the following issues with detailed reasons in its Outline of Submissions:
(a)The pre-injury pathological state of the Applicant’s right shoulder.
(b)The pathological effects of the event at work on the Applicant’s shoulder.
(c)The consequences of such pathology on functional capacity.
(d)Whether the effects of injury continue.
(e)The requirement for treatment.
In the second application the Applicant identified the following issues:
(a)Whether the Applicant was entitled to the cost of proposed left total knee replacement surgery pursuant to section 16 of the SRC Act.
(b)Alternatively, did the Applicant sustain an “injury” as defined in the SRC Act with respect to the left knee and in circumstances where she walked to and from a two day training course, in the course of her employment, on 28 and 29 November 2012.
(c)Further and in the alternative, did the Applicant make a “wilful and false” representation within the meaning of section 7 (7) of the SRC the Act.
The Respondent identified the issues for determination by the Tribunal in the second application in the following terms:
(a)Did the Applicant have a pre-existing disease in her left knee?
(b)Did she make a representation to Comcare about previously suffering a disease?
(c)Were the representations for the purposes of her employment?
(d)Was the representation objectively false?
(e)Was her claim in respect of “that disease” within the meaning of section 7 (7)?
(f)Was the false representation wilful?
(g)Were the symptoms of 28 November 2012 an aggravation?
THE MEDICAL EVIDENCE
Mr Russell Miller
Mr Russell Miller, an orthopaedic surgeon, prepared a report assessing the Applicant’s right shoulder and left knee, which was in evidence.[49] He also gave oral evidence at the hearing. He stated that he examined the Applicant on 25 April 2019. Mr Miller took a history from her. He stated that it was a complex and difficult history to take. He stated that he made notes when taking her history and that she had some difficulty, as some patients do, when asked to recall it. She had understandable difficulty in recalling a precise pattern of symptom evolution. Mr Miller observed that patients do frequently have difficulty recalling their history. The Tribunal should note that Mr Miller’s observations concerning the Applicant’s attempts to recall her medical history, is consistent with her evidence in the witness box on this topic.
[49] Exhibit "A-1".
Concerning the right shoulder, and its relationship to the November 2009 incident, Mr Miller stated that it was complex and multifactorial. He readily conceded that there was likely to be pre-existing disease in the Applicant’s right shoulder. He opined that it was likely that the pre-existing disease was aggravated by the fall on 20 November 2009. Further superimposed injury occurred, including probable avulsion fracture of the greater tubercle. He reached the conclusion that the current clinical status is therefore regarded as being substantially related to the first injury which was incurred in the November 2009 incident. In the witness box he emphasised that as a result of that injury the rotator cuff had a greater propensity to deteriorate.
Mr Miller also gave evidence that a probable avulsion fracture was the injury suffered by the Applicant at the time of the November 2009 incident. His evidence was that it was likely that there was the presence of rotator cuff disease of some degree before the incident, which was likely aggravated by the injury. He opined that it was asymptomatic before the injury and made symptomatic by the event and then further injury occurred. He described the further injury as having multiple components: a fracture; then it is likely that the rotator cuff tore further; and due to the additional damage, the rotator cuff in its damaged state has a greater propensity to deteriorate. It was his opinion that once there is a tear in a rotator cuff of a certain size, the possibility of development of arthritic disease in the shoulder continues to evolve. This is what Mr Miller considered happened to the Applicant.
One of the compelling features of Mr Miller’s evidence was that he established the conclusion that there was no evidence of a tear or a fracture in the rotator cuff prior to the November 2009 incident after he looked at the documentation with which he was instructed, including various medical images of the right shoulder. He concluded that the medical images of April 2010, at least in the ultrasound, revealed a small tear and an associated fracture.
Another important feature of Mr Miller’s evidence was that he stated it was very rare to see a fracture and a tear in the way that the Applicant’s medical images revealed in the absence of trauma as they are highly associated. On the other hand, he readily also conceded that it was quite common to see a rotator cuff tear without a fracture or an injury.
In relation to the subsequent incidents in 2016 and 2018, Mr Miller considered there was an escalation in the conditions experienced by the Applicant as no doubt, the disease and then the extent of the rotator cuff tear both progressed. Whilst the rotator cuff may have been vulnerable prior to the November 2009 incident, he considered that as a result of that incident it developed a greater vulnerability.
For these reasons, Mr Miller concluded that the November 2009 incident contributed to, to a significant degree, the right shoulder condition from which the Applicant suffers.
In relation to the left knee condition, Mr Miller opined that this is also complex and multifactorial. He once again readily acknowledged that there was no doubt that there was a pre-existing disease in the Applicant’s left knee. He considered it was highly likely that such pre-existing disease was aggravated by what he described as “hurried walking” on 28 November 2012. He considered that this precipitated symptoms in the left knee which have not resolved. His terms were that the events of November 2012 made the complaint symptomatic, aggravated or precipitated. He explained that another aspect of the Applicant’s condition was that if the knee has a pre-existing condition it can cause a tear of the cartilage. Frequently, with an arthritic knee a simple event can aggravate the condition which leads to an inflammatory process. The components are not mutually exclusive. He did not believe it is possible to decide the exact combination rather than treat them as the summation. He considered it is a sufficient case to conclude an aggravation without knowing any more about the underlying mechanism. The question was whether the pre-existing disease in the left knee was symptomatic prior to the events of November 2012. Overall, he accepted the Applicant’s position.
Mr Thomas Kossmann
Mr Thomas Kossmann, an orthopaedic surgeon, also prepared a report into the Applicant’s right shoulder condition dated 7 July 2017 that was in evidence. Additionally, he gave oral evidence during the hearing.
Mr Kossmann examined the Applicant on 7 July 2017. He took a detailed history from her. He conducted a physical evaluation of the Applicant including, but not limited to, a full examination of the range of movement in her right shoulder. It is clear from his report that the range of movement in the right shoulder was considerably more restricted than that of the left. The history included details of the fall on 20 November 2009. He observed that the x-rays and ultrasound taken on 18 December 2009 resulted in a diagnosis of subacute avulsion fracture of the greater tubercle of the proximal right humerus. The radiologist also diagnosed degenerative changes in the acromioclavicular joint. He concluded that the Applicant suffered an injury to her right shoulder joint in a work-related accident on 20 November 2009. He expressed the opinion that the Applicant’s employment was a significant contributing factor to the injury to her right shoulder joint and her present condition.
Mr Kossmann reached a present diagnosis of the Applicant’s current conditions. They included, insofar as relevant to this application:
(a)Subacute avulsion fracture of the great tubercle of the proximal humerus right side, meanwhile healed;
(b)Severe rotator cuff pathology right side with tears of the supraspinatus, infraspinatus subscapularis tendons, fatty atrophy of the supraspinatus muscle, biceps tendinosis and superior labral tear and signs of glenohumeral osteoarthritis responsible for pain and movements restriction in the right shoulder joint.[50]
[50] The diagnosis in Mr Kossmann’s report (exhibit “A-6”) has not been reproduced in full which is contained in paragraph 2 on page 9. However, it is referred to in its entirety for its full force and effect.
In response to a specific question asked in the letter of instruction furnished by the Applicant’s solicitors, Mr Kossmann expressed an opinion that the Applicant suffered an injury to her right shoulder joint in the incident of 20 November 2009 which was work-related. He considered that, by reason of the November 2009 incident occurring during the course of her employment, it was a significant contributing factor to the injury to her right shoulder.
Further, Mr Kossmann considered that the Applicant continues to suffer from pain and movement restrictions in her right shoulder joint as a result of the November 2009 incident where she suffered a significant injury to her right shoulder joint.
In his evidence from the witness box, Mr Kossmann explained how the 2009 incident caused tears in the rotator cuff. He described the incident as traumatic because of the avulsion fracture. He repeated that this is the consequence of an acute event.
Mr Kossmann readily conceded that there was likely a process of degeneration underway in the Applicant’s right shoulder at the time of the fall in 2009.
Mr Ronald Haig
Mr Haig, also an orthopaedic surgeon, was called on behalf of the Respondent and gave evidence by telephone. He had prepared a report dated 19 July 2019 which was in evidence.[51] He had examined the Applicant on 10 July 2019. His report concerned the Applicant’s complaints of pain in her left knee.
[51] The letter of instruction to Mr Haig of 28 June 2019 and his subsequent report of 19 July 2019 are exhibit “R-11".
Mr Haig considered there was much documentation to demonstrate that the left knee had been symptomatic prior to the incident in 2012. He highlighted the documentation showing complaints about left knee pain in the years 2004 and 2006. As a result of this, he opined that the Applicant’s pain in 2012 was a worsening of that pain, and occurred whilst she was at work, rather than because she was at work. He opined that it was simply her natural history of osteoarthritis developing.
Mr Haig went so far as to say that he believed there was no incident as such. He considered that the documentation showed significant degenerative change in her left knee for at least six years preceding the onset of pain she experienced in the November 2012 incident as she described it. Mr Haig considered that the onset of such pain occurred whilst she was at work walking rather than because she was working. He believed that because of the significant degenerative change identified in her left knee she was destined to have an increase in knee pain at the time, regardless of whether she was walking or not. Therefore, he concluded that there was no injury as such in 2012, as the Applicant described it. He concluded that her current left knee condition was not contributed to by her employment with the Bureau of Meteorology.
In his opinion, the left knee had simply been following a path of increased degenerative change, and correspondingly increased symptoms, similar to those already experienced in her right knee by the time of the onset of pain in 2012.
Mr Haig was probed in cross examination on several matters. He stated he had absolutely no doubts about the genuineness of the Applicant. He accepted that she had suffered an onset of knee pain in 2012 as she described it. In response to some careful probing by counsel for the Applicant, he conceded that if the Applicant did not have any symptoms of left knee pain, or any other symptoms in the left knee prior to her walking on the day in late 2012, that walking activity may have made an asymptomatic condition symptomatic. He conceded, when pressed, that the Applicant had no symptoms in the left knee between 2008 and 2012.
Dr James Khursandi
Dr Khursandi, another orthopaedic surgeon, gave evidence by telephone on behalf of the Respondent. He had produced two reports concerning the Applicant’s right shoulder. One report was dated 18 September 2015[52] and a supplementary report on 5 June 2018.[53] He produced another report on 18 September 2015 concerning the Applicant’s left knee.[54]
[52] Document T 38 of the T documents.
[53] Exhibit "R-12".
[54] Mr Khursandi’s report concerning the Applicant’s left knee dated 18 September 2015 is document ST 42 of the ST documents.
Dr Khursandi conducted an examination of the Applicant on 3 September 2015. He took a medical history from her and also details of the 20 November 2009 incident.
Dr Khursandi’s assessment was that the Applicant presented with symptoms and signs of rotator cuff tendinopathy of the right shoulder, which in his opinion was due to age-related degeneration, and associated with degenerative tears of the supraspinatus and subscapularis muscles. He concluded that the fall on 20 November 2009 resulted in soft tissue strain of the right shoulder which had by then resolved. Additionally, he made the observation that the Applicant was on no specific treatment for the right shoulder and continued to use the upper extremities for most activities at home, including pulling on the cord of a lawnmower to start the engine. This observation was made notwithstanding the details he recorded of the extension, adduction, abduction, internal rotation and external rotation arising from his physical examination of her. He readily conceded in his evidence to the Tribunal that those observations were consistent with what is sometimes described as a painful arc. He noted in the report that the Applicant noticed pain on the movement of the right shoulder and there was tenderness at the anterolateral tip.
Dr Khursandi’s supplementary report prepared on 5 June 2018 followed the provision of further documentation, including an array of medical images obtained through various processes. He observed that an ultrasound of the Applicant’s right shoulder dated 18 December 2009, which was not previously available to him in 2015, did reveal pre-existing degeneration and thinning of the mid-third of the supraspinatus tendon.
Dr Khursandi readily conceded in his evidence that if the Applicant was not experiencing symptoms prior to the November 2009 incident, it was highly likely that she had torn the rotator cuff in the fall. He also acknowledged that it was possible that there may well have been one or more tears in the tendons prior to November 2009 which had remained asymptomatic. It was therefore possible that the fall may have caused such tears to become symptomatic. Despite this concession, he expressed the opinion that by the time of his assessment he thought that any soft tissue injuries she had sustained would have resolved.
Dr Khursandi’s report concerning the Applicant’s left knee considered the results of the MRI scan performed on 21 December 2012 which he said revealed a degenerative tear of the medial meniscus with chondral changes in the medial compartment consistent with degeneration. Dr Khursandi stated that upon conducting his assessment of the Applicant on 3 September 2015 she demonstrated symptoms and signs of moderate osteoarthritis of the left knee. He concluded that on the 28 November 2012, the Applicant transiently aggravated a pre-existing degeneration in the medial compartment of her left knee. He considered that any aggravation caused by the work-related activity of 28 November 2012 would have ceased three months after the debridement procedure (partial medial meniscectomy and chondroplasty in the degenerative medial compartment of the knee and the patellofemoral compartment) performed by Dr Harris on 8 August 2013.
Dr Khursandi also concluded that the condition then suffered by the Applicant in the left knee was constitutional, age and weight related. He therefore stated he was not able to attribute her current condition to work-related aggravation which had previously been accepted by Comcare three years earlier.
CONSIDERATION
The 20 November 2009 incident and the Applicant’s right shoulder
The Respondent contended that the right shoulder injury did not occur in the course of the Applicant’s employment.[55] In a consideration of findings to be made concerning this incident the Tribunal refers to and repeats the general observations on the Applicant’s demeanour and her evidence referred to above.
[55] In the application no 2016/5274 concerning the Applicant’s right shoulder the first issue for determination by the Tribunal identified in her counsel's Outline of Closing Address was: "Whether the injury to the right shoulder sustained on 20 November 2009 occurred in the course of the BOM employment."

The Tribunal accepts the Applicant’s account of the events that occurred on 20 November 2009 when she fell over upon leaving the lift at the Bureau of Meteorology offices. It does so for several reasons. Firstly, as observed above, the Tribunal found the Applicant to be overall a reliable witness. It is readily conceded that at times her recollection was not as precise as one might have imagined. However, she did not generally give an inconsistent account concerning those events. Secondly, it must be repeated that her account in the witness box largely accorded with the contents of the contemporaneous documents referred to earlier in these reasons. Thirdly, also as noted above, her account of her duties on that day, although tackled in cross examination and disputed in the contents of the letter of 2 December 2009 from the Compensation and Rehabilitation Officer of the Bureau of Meteorology, was not disputed by any other viva voce evidence. As noted above in these reasons, reference was made in that letter to the advice given by the Applicant’s direct supervisor at the time. The direct supervisor did not give evidence at the hearing, and no explanation was given to the Tribunal for this failure to call her. One would have expected her to have been called if there was a genuine dispute about whether or not the Applicant did deliver the envelope to the Registry/Mail Centre on Level 5 (or whether she had been allocated such duties on that day) and whether there was also an internal mail pickup and delivery service functioning on the day of the incident. Fourthly, some allowance must be made for the fact that the incident concerned occurred approximately 10 years ago. With the passage of that much time recollections will become less accurate.
Given these findings about the 20 November 2009 incident, the Tribunal finds that the right shoulder injury suffered on that day by the Applicant arose in the course of her employment.
Both parties to the application agree that there were pre-existing degenerative changes in the right shoulder to the Applicant’s rotator cuff. Both agree that they were, more likely than not, degenerative changes consistent with her age.
The Respondent asserts that such degeneration to the right shoulder was likely symptomatic, or would inevitably had become symptomatic independent of injury. It also contends that the Applicant was suffering from the early onset of an arthritic condition, the effects of which were progressive and inevitably would have become symptomatic.[56]
[56] The Tribunal refers to the Respondent's Outline of Submissions for full details of this contention, under the heading "The pre-injury pathological state of the Applicant's right shoulder."
The Applicant contends that changes in her right shoulder were not symptomatic at the time of the 20 November 2009 incident. She further contends that the fall precipitated symptoms and dysfunction which aggravated the underlying degenerative condition. Therefore, as the incident occurred in the course of her employment, it contributed to such aggravation to a significant degree. The contention being that such symptoms and dysfunction have not resolved to date and have reasonably required treatment to this time.
The Tribunal finds that, contrary to the contention of the Respondent, the pre-existing degenerative changes in the Applicant’s right shoulder were not symptomatic at the time of the 20 November 2009 fall. Previous observations concerning the Applicant’s credibility and demeanour in the witness box are referred to and repeated. It accepts the evidence of the Applicant referred to above, that prior to the fall when her right shoulder was injured, she had not experienced any symptoms, dysfunction or pain in that shoulder. It accepts the Applicant’s evidence of the symptoms that she suffered after the 20 November 2009 fall.
There was much debate between the parties as to the pathological effects of the 20 November 2009 fall on the Applicant shoulder. The Respondent contended that apart from what it described as the “suspected” avulsion fracture to the tuberosity of the humerus, little acute damage occurred and none of the serious effects identified as possible consequences particularly by Mr Kossmann actually occurred.[57] Principally relying upon the opinion of Dr Khursandi, the Respondent contended that the incident on 20 November 2009 resulted in a soft tissue strain of the right shoulder which has now resolved.[58]
[57] The Tribunal refers to the Respondent's Outline of Submissions for full details of this contention, under the heading "The pathological effects of the event at work upon the Applicant's right shoulder."
[58] The Respondent's contentions in its Outline of Submissions under the heading: "The consequences of such pathology on functional capacity." are referred to in their entirety for their full force and effect.
As noted above, Mr Miller described the Applicant’s right shoulder condition as complex and multifactorial. He evaluated the medical images, being x-rays and ultrasounds taken on 18 December 2009 and 14 April 2010, in reaching his conclusion. The medical images of 18 December 2009 revealed a subacute avulsion fracture of the greater tubercle. The medical images of 14 April 2010 revealed a partial thickness tear of the subscapularis, subacromial bursitis, old partial-thickness or a small full thicknesses tear of the supraspinatus. A review of these medical images led him to conclude that the Applicant was injured on 20 November 2009 and then further superimposed injury occurred, including the probable avulsion fracture of the grated cubicle. He concluded that the current clinical status of the Applicant’s right shoulder was substantially related to the injury on 20 November 2009.
Mr Kossmann similarly diagnosed a subacute avulsion fracture in the terms described above. He also diagnosed severe rotator cuff pathology for the reasons he articulated both in his report, and in the witness box; he concluded that the Applicant suffered a significant injury to her right shoulder joint. He described a subacute avulsion fracture as a condition that can, as he called it, be nothing or “develop the lot”. He described it as a “time bomb” and some such fractures can heal or make trouble down the track; this can also cause rotator cuff problems. He concluded that due to tears arising in the rotator cuff from the fall in November 2009, the Applicant’s shoulder from thereon in was, as he put it, not very good.
Overall, the Tribunal prefers the opinions of Mr Miller and Mr Kossmann. The reasoning they adopted was derived from a careful review of the medical images of the Applicant’s right shoulder taken shortly after the November 2009 incident. (Together, of course, with having physically examined her.) After reviewing those images and examining her, both surgeons explain why they reached the conclusion they did. In both his reports and from the witness box, Dr Khursandi did not fully explain the issue of what was revealed in the medical images taken in December 2009 and April 2010 after the fall (which certainly revealed the avulsion fracture and tears of the rotator cuff).
Another reason the Tribunal prefers the evidence of Mr Miller and Mr Kossmann is due to the response to several questions put in cross examination of Dr Khursandi. To his credit, he readily conceded when pressed that if there is a tear in a shoulder tendon or the rotator cuff it can progress. His evidence was that most people over the age of 50 do have small tears which are an inevitable fact of the passage of time and the aging process. He conceded readily that where there is a partial tear that person is at greater risk; it was common sense he said. He put it that they are more vulnerable to further tearing. He said it is similar to the tear in any clothing. It can progress and depends on the activity of the person.
Dr Khursandi also readily conceded that he did not examine the Applicant until six years after the event. When put to him that the Applicant’s evidence was that she had no prior symptoms in her right shoulder and therefore, would it be possible that she had torn a tendon in the fall on 20 November 2009, he readily conceded it was possible. However, he could not say with absolute certainty. Once again, also to his credit, he conceded that a tear may have been there but not severe enough to warrant treatment. He also readily conceded that it was possible the Applicant had one or more tears prior to November 2009 and that they had been asymptomatic. He was prepared to concede that the fall could have precipitated the shoulder position but he was not prepared to go any further. He did emphasise what he saw as the Applicant’s age-related conditions.
These responses of Dr Khursandi concerning the Applicant’s right shoulder condition experienced after the fall on 20 November 2009 are not inconsistent with the opinions expressed by Mr Miller and Mr Kossmann. They offer a rational explanation for the evidence given by the Applicant. They are also appropriately made concessions that the Applicant may well have suffered something beyond what Dr Khursandi described in his report as a soft tissue strain. It was the hallmark of a responsible expert. Such concessions very much align with the evidence given by Mr Miller both in his report and from the witness box: that the likely rotator cuff disease present in the Applicant’s right shoulder beforehand was likely aggravated by the injury suffered in the November 2009 incident. It was made symptomatic by the event. Dr Khursandi’s evidence that it made the Applicant vulnerable to further tearing like a tear in any clothing, and can progress, was very similar to the evidence of Mr Miller.
The effects of the November 2009 incident made the Applicant’s right shoulder more vulnerable to further tearing and injury as did occur in the subsequent falls in 2016 and 2018. It should be observed that by reason of the earlier analysis, Mr Miller stated that the effect of the later falls did not substantially alter his opinion that the Applicant’s current clinical status concerning the right shoulder was substantially related to the November 2009 incident. This is also consistent with the conclusion of Dr Khursandi that her shoulder became more vulnerable to tears following the November 2009 incident.
Therefore, the Tribunal cannot accept the contention of the Respondent that the effects of the November 2009 incident have since been “crowded out” by the combination of the pre-existing and progressive age-related degeneration of her right shoulder and the impact of subsequent non-work incidents including the two falls in 2016 and 2018.[59]
[59] This finding addresses the issue raised in the Respondent's Outline of Submissions under the heading: "Whether the effects of injury continue". The contents of that submission are referred to in their entirety for the full force and effect.
The Respondent placed emphasis on the fact that when the Applicant saw Dr Khursandi she told him that she continued to use the upper extremities for most activities at home, including pulling on the cord of a lawnmower to start the engine.[60] Whilst this may be so Mr Miller, Mr Kossmann and Dr Khursandi all described the restrictions that she did have in using her right shoulder. Mr Kossmann and Dr Khursandi readily acknowledged that the Applicant experienced a painful arc in the use of that shoulder. Mr Miller described the Applicant as having severe pathology of the shoulder, ache, discomfort and pain. These manifestations were worse with repetitive and overhead activities.[61] Further, Mr Miller observed that she could not undertake any work involving repetitive right arm actions, or the use of the arm in the above shoulder position and lifting weights of more than 5 kg. This is consistent with the evidence given by the Applicant which is accepted by the Tribunal. The Applicant herself addressed this matter indirectly in terms of the fact that notwithstanding the restrictions on her shoulder, she is endeavouring to do her best to manage her life in all its facets. The Tribunal accepts this evidence from her.
[60] This fact or observation was not put to the Applicant when she was in the witness box by the Respondent. She was therefore, unable to state whether or not she said this to Dr Khursandi as he recorded it, nor give any other explanation for this comment if she in fact did make it. This fact must to some extent limit the effect of this evidence and the weight that the Tribunal can place upon it.
[61] These observations are quite consistent with the contents of earlier reports such as that of Dr Van Wetering of 1 October 2010 (page 14 of the Respondent’s tender bundle) which reported that the Applicant was experiencing restrictions “from overhead duties”.
In accepting this evidence from the Applicant it also to some extent explains the findings and effect of the reports of Mr Ireland in April 2013 and Dr Van Wetering in 2010 that she was doing her best. Both of them did ultimately diagnose similar conditions and generally expressed a view that the shoulder would improve over time. Dr Van Wetering did foreshadow that further surgery may be required. Ultimately of course it is time that tells. Later reports from several orthopaedic surgeons give further detail of the current condition of the right shoulder.
The Tribunal accepts that the fall on 20 November 2009 caused the asymptomatic conditions in her right shoulder to become symptomatic as described previously in these reasons. The Tribunal also finds that the fall on 20 November 2009 contributed to the aggravation of the underlying degenerative conditions in her right shoulder to a significant degree. These conclusions are reached by reason of acceptance of the evidence of the Applicant that she had not experienced any symptoms in the right shoulder prior to that fall. The finding is also derived from the reasoning of particularly Mr Kossmann, Mr Miller and several features of the evidence of Dr Khursandi referred to above. A subacute avulsion fracture and the various tears of the rotator cuff that were described by the experts were a significant aggravation of the underlying degenerative condition.
The Tribunal therefore finds in favour of the Applicant concerning the second issue identified in her counsel’s outline of closing address namely that: “The right shoulder injury was contributed to, to a significant degree, by the Applicant’s former employment with the Bureau of Meteorology.”
Having accepted the evidence of Mr Miller and Mr Kossmann for the reasons identified above the Tribunal also finds that the right shoulder injury sustained by the Applicant has not resolved.
By way of completeness on this topic concerning the right shoulder, the Tribunal should also note that both Mr Kossmann and Mr Miller conclude that the prognosis for the Applicant’s shoulder is poor. They both foreshadow that she will require further treatment. Mr Kossmann considered that she may become a candidate for a shoulder replacement but could not anticipate the time. Mr Miller considered that given the severe pathology in the shoulder it would be reasonable to proceed with a reverse shoulder replacement including biceps tenodesis. The Tribunal accepts these conclusions and certainly considers it more likely than not that she will require surgery sooner rather than later on her right shoulder by way of a shoulder replacement.[62]
[62] This addresses the issue identified by the Respondent in its Outline of Submissions under the heading: "The requirement for treatment." The contents of this portion of the Outline of Submissions is referred to in its entirety for its full force and effect.
By reason of the foregoing matters the Tribunal concludes that the correct and preferable decision is to set aside the first reviewable decision. In substitution therefore the following orders should be made:
The Applicant has continued to suffer from 10 June 2016 to the present date and at the present date, from the effects of the injury identified as:
(a)Subacute avulsion fracture of the great cubicle of the proximal humerus right side;
(b)Severe rotator cuff pathology right side with tears of the supraspinatus, infraspinatus subscapularis tendons, fatty atrophy of the supraspinatus muscle, biceps tendinosis and superior labral tear and signs of glenohumeral osteoarthritis responsible for pain and movements restriction in the right shoulder joint.
(i)Sustained on 20 November 2009, arising out of her former employment with the Bureau of Meteorology, resulting in a need for medical treatment pursuant to section 16 of the SRC Act.
The left knee condition and the November 2102 incident and the Applicant’s completion of the Claim for Workers’ Compensation Form
The Applicant conceded that she experienced left knee symptoms during the years 2004 to 2008.[63]
[63] Paragraph J of the “Outline of Closing Address” of her counsel is referred to.
She also conceded that there were pre-existing degenerative changes in the left knee at the time of the November 2012 incident.[64]
[64] This concession is made in paragraph 7 of the Outline of the Applicants Closing Address prepared by her counsel.
These concessions concerning the left knee symptoms between the years 2004 and 2008, and the pre-existing degenerative changes in her left knee are consistent with the evidence as it unfolded which is recounted earlier in these reasons under the heading in “Previous symptoms in left knee”. That evidence is referred to and repeated. This means that the first issue identified by the Respondent namely: “Did the Applicant have a pre-existing disease in her left knee?” Must be answered in the affirmative.
The Applicant’s contention was that such changes to her left knee had been asymptomatic since at least late 2008 and had not caused any dysfunction, or need for treatment during the period from late 2008 until the incident in November 2012. The Tribunal accepts this contention for several reasons. As noted above it accepts the Applicant’s evidence that she had not experienced any pain or discomfort in her left knee from 2008 until the walking incident in 2012. This is also consistent with the evidence from tendered medical records, which reveal that from 2008 until 2012 she did not seek, nor was there evidence of, any medical treatment or attention to her left knee. There was no evidence in any of the clinical notes, records or reports recording her medical history between those years which contained any entry or observation, of her complaining about left knee pain, dysfunction or problem. There is no evidence of any treatment, including the prescription of medication, administered to her left knee during that time span. One would have expected that if there had been a presence of knee pain, dysfunction or other problem in any time during that period she would have mentioned it to her treating medical practitioners, and they would have recorded the fact. This is further corroboration of the evidence that she gave in the witness box to the effect that she had no pain in her left knee during this period.
It should also be borne in mind that the medical evidence from those doctors the Applicant consulted, as well as her oral evidence, revealed that the dominant concern not only between 2008 and 2012 but also between 2004 and 2008, was her right knee. It should be noted that the deteriorating condition of her right knee lead to a total knee replacement operation being undertaken in March 2009. The Applicant’s counsel put much emphasis on three letters from the orthopaedic surgeon Mr Wuttke between May and December 2006 which addressed solely the condition of the right knee. This was notwithstanding the fact that the referral letters to him from the Applicant’s general practitioner did address both knees. Without hearing from Mr Wuttke, the Tribunal considers that the evidence of the Applicant should be accepted that the dominant concern of her during those years was her right knee.

The Tribunal considers that the Applicant’s evidence that the left knee was pain free from 2008 until the 2012 walking incident should be accepted as noted earlier.
It is appropriate now to turn to the issues of the claim form signed by the Applicant concerning her left knee and the November 2012 walking incident. As noted above the Respondent considers of one of the issues for determination by the Tribunal in this matter is the question: “Did she make a representation to Comcare about previously suffering a disease?”
When one examines the questions asked of the Applicant in the Claim for Workers’ Compensation Form, she is asked specific rational questions about her left knee to which she responded. An initial relevant question asked what injury or illness she was claiming workers’ compensation. The response was: “Left knee injury, left medial tibial plateau fracture, left medial meniscal tear”. When asked to identify the part of the body injured the response was: “Left knee”. The next relevant question in the claim form was: “Have you ever had a similar symptom, injury or illness, work-related or otherwise?” The following question in the claim form was: “Have you ever received medical treatment for a similar injury or illness?”[65] Her responses were clear and unequivocal. To both questions she answered: “No”. Those answers convey a representation that she had not previously suffered a “disease” within the meaning of the relevant sections of the SRC Act with respect to her left knee. (Or if it needs to be stated, in layman’s terms that she had not had any previous problems with her left knee.)
[65] The Claim for Workers’ Compensation Form completed by the Applicant is document ST 10 in the ST documents. The questions concerned in the claim form are numbered 16 and 17.
This response is inconsistent with much of the medical evidence concerning symptoms she was experiencing with her left knee as early as 2004. All that evidence need not be repeated. However, by way of example, the report of Mr Lowe dated 10 December 2004 stated that the Applicant had developed symptoms in her left knee and at times they had been as severe as the right, occurring mainly when using stairs and standing for any period of time. A diagnostic imaging report dated 20 January 2005 recorded chronic left knee pain.[66] A further report from Mr Lowe dated 4 February 2005 recorded the main symptoms in the Applicant’s left knee to be in the anterior region and were consistent with an MRI report of an injury to the patella and quadriceps tendon mechanism.[67] These symptoms described in these reports are considered by the Tribunal to be sufficiently similar to warrant a conclusion that the Applicant had previously suffered a similar symptom to her left knee in the relevant sense. For these reasons, this question as postulated by the Respondent must be answered in the affirmative.
[66] That diagnostic imaging report is at page 3 of the Respondent's tender bundle.
[67] Ibid at page 4.
The next issue identified by the Respondent for consideration by the Tribunal was: “Were the representations for the purposes of her employment?” This question can only be answered in the affirmative. The Applicant filled out a claim form in the course of her employment for the purposes of obtaining benefit from her employer. There was no argument advanced by the Applicant or her counsel to suggest otherwise.
Having identified that the representation was made concerning a previous suffering of a disease and for the purposes of the Applicant’s employment with the Respondent postulates a further issue for resolution by the Tribunal, namely: “Was the representation objectively false?” Little needs to be further stated concerning the response to this question given the matters that have been considered earlier in these reasons. As noted earlier, the question asked in the Claim for Workers’ Compensation Form was clear and unequivocal. The evidence of the prior history of complaints and medical reports concerning her left knee symptoms between 2004 and 2008 have also been articulated in some detail. They included, as noted above, evidence of chronic left knee pain in early 2005. On any objective analysis the answer to the question concerned has to be that the representations contained in the Claim for Workers’ Compensation Form, by not disclosing that history and those symptoms between 2004 and 2008, were objectively false.
The Respondent posed a further issue for consideration by the Tribunal which was in the following terms: “Was her claim in respect of “that disease” within the meaning of section 7 (7)?” At the commencement of the consideration of this issue it should be observed that the “disease” referred to in section 7 (7) of the SRC Act must be the same disease, or a substantially similar one to that for which compensation is claimed.[68] It was not disputed between the parties that when the Applicant completed the Claim for Workers’ Compensation Form that she claimed an assertion of aggravation of an underlying or previously asymptomatic condition concerning her left knee. She gave evidence to this effect consistent with the contents of the Claim for Workers’ Compensation Form. Also, there was no divergence between all doctors who gave evidence during the course of the hearing, the Applicant’s left knee was suffering from “a disease”, which the Tribunal finds must have been a “disease” within the meaning of section 7 (7) of the SRC Act. That disease was the degeneration and osteoarthritis in her left knee. Her claim was in respect of the effect of that disease and its aggravation by the November 2012 walking incident, which she contended occurred in the course of her employment. It was the same disease or a substantially similar one to that for which compensation is claimed. Once again, the Tribunal finds that this issue or question must be answered in the affirmative.
[68] See for instance the reasons of Flick J in Griffiths v Australian Postal Corporation (2018) 158 ALD 298 at [19] and [20] and the authorities referred to therein.
The Respondent has identified a further issue on this aspect of the application as being: “Was the false representation wilful?” A wilful and false representation for the purposes of section 7 (7) of the SRC Act requires that the employee making such representation should have no belief that it is true.[69] In other words there must be proof of the knowledge of the falsity of the representation on the part of its maker. It is a high evidentiary threshold to be crossed given that it makes a finding to the effect that the maker of the representation has engaged in fraud, and is therefore, one not lightly to be made. Indeed, in this context the Applicant referred to the often cited case on this topic of Briginshaw v Briginshaw.[70] This case provides that, in determining whether a party has established his or her case on the balance of probabilities, the tribunal of fact must have regard to the seriousness (or gravity, or magnitude) of the issue, so that the more serious the issue stricter is the proof required.
[69] Comcare v Porter (1996) 70 FCR 139 per Jenkinson J; Griffiths v Australian Postal Corporation (2018) 158 ALD 298 at [41] per Flick J.
[70] (1938) 60 CLR 336. All of the observations of Dixon J (as he then was) at page 361 are referred to on this topic, and how a tribunal of fact is to determine such a question.
Throughout her evidence the Applicant stated that the answers to the questions in the Claim for Workers’ Compensation form were true and correct to the best of her knowledge. She denied that she was being deliberately untruthful. Her evidence in support of this contention was reinforced by the fact that she stated, and the medical evidence showed, that for approximately four years prior to the November 2012 incident she had not experienced any symptoms in her left knee. She stated that she was being truthful when she signed the claim form in regard to the 2012 injury. The Tribunal also infers from her evidence to some extent she was confused about what question 10 of the claim form was actually asking her to respond to. It should be noted that the question asks the Applicant to identify the injury, or illness for which she was claiming workers’ compensation. Given her comparative lack of sophistication, it appeared from observing her evidence that she treated that question, and the subsequent one asking if she had previously experienced similar symptoms, injury or illness, as seeking a response solely to some identifiable event, such as an injury rather than age-related degeneration that she may have suffered in her left knee, as she did between 2004 and 2008. As noted earlier, the Tribunal accepts this evidence of the Applicant.
The Applicant also stated that she had forgotten her previous history of left knee problems when she completed the Claim for Workers’ Compensation form. She stated that at the time of completing the claim form, she had been going through some very stressful times which contributed to that failure to recall her previous left knee conditions in the years 2004 to 2008. The Tribunal also refers to its previous observations concerning the Applicant’s demeanour and the claim form in paragraphs 58–60 above in accepting her explanation concerning the completion of the claim form with respect to her left knee and the November 2012 incident. For these reasons the Tribunal does not consider that the representations contained in the Claim for Workers’ Compensation Form were made by the Applicant without any belief that they were true. The representations were not wilful.[71] Therefore, the Tribunal concludes that section 7 (7) does not apply to the Applicant.
[71] For the sake of completeness the Tribunal also answers the third issue identified by the Applicant in her counsel’s Outline of Closing Address namely: "In the alternative, did the Applicant make a "wilful and false" representation within the meaning of section 7 (7) of the SRC Act?" It finds that she did not.
It is now necessary to turn to the question of whether the November 2012 incident constituted an aggravation of the Applicant’s left knee condition. It should be repeated as observed above that the evidence demonstrates that the Applicant experienced left knee symptoms, particularly during the years 2004 to 2008. It appears from the evidence that after 2008 these symptoms stabilised.
There were the appropriate concessions that there were pre-existing degenerative changes in her left knee at the time of the November 2012 incident. It is not unreasonable to observe that all of the doctors who gave evidence on this topic before the Tribunal reached this conclusion. It is evident from several of the other medical reports in evidence that doctors who examined her from time to time similarly reached such a conclusion.[72]
[72] For instance Dr Wijetunga a Consultant Orthopaedic Surgeon prepared a report on 2 April 2013 after examining the Applicant. He concluded that she suffered from degenerative disease of the left knee. He also concluded that the current condition in the left knee suffered by the Applicant was due to a pre-existing or underlying condition which had been asymptomatic. In fairness it must also be mentioned that he observed that such pre-existing condition had been aggravated by the November 2012 incident. Mr Burnes another Orthopaedic Surgeon who first saw the Applicant on 19 December 2012 in a report dated 20 February 2013 also observed that there were degenerative changes in the left knee.
The Tribunal does not consider that the Applicant’s employment with the Bureau of Meteorology contributed to the current condition she experiences with her left knee to a significant degree. There are several reasons for this.
The significant history of left knee symptoms between the years 2004 and 2008 referred to previously demonstrate that there had been significant symptoms in her left knee from time to time during those years. The description of those symptoms varied from being as severe in her left knee as her right.[73] They were also described as “acute chronic left knee pain.”[74] They recorded significant changes of osteoarthritis involving the medial compartment of the knee and complete cartilage loss with bone on bone articulation on the medial joint margin.[75] As outlined above, there were referrals to specialists that referred to pain in both knees.
[73] See the report of Mr Lowe at page 2 of the Respondent's tender bundle.
[74] Diagnostic Imaging Report at page 3 of the Respondent’s tender bundle.
[75] Diagnostic Report at page 5 of the Respondent’s tender bundle.
On the preponderance of the evidence, the Tribunal finds that after 2008 the pathology in the left knee had probably settled to some degree.
Mr Miller readily conceded that the Applicant’s left knee issue was complex and multifactorial. He acknowledged the likelihood of pre-existing disease in the knee. He even went so far as to observe that the current clinical status related predominantly to pre-existing disease and disease evolution. However, he did state that it was partly due to the ongoing effects of the November 2012 incident. It is fair to say that his evidence was not in any way higher than that.
Mr Haig very persuasively contended that the Applicant was destined to have an increase in knee pain about the time of the November 2012 incident regardless of her mode of walking. He described it in terms of being a natural history of her osteoarthritic knee and not due to any aggravation sustained at that time. He called it a path of increased degenerative change.
Dr Khursandi considered that the Applicant transiently aggravated the pre-existing degeneration in the medial compartment of her left knee during the November 2012 incident. He also considered that the degeneration involved the medial and patellofemoral compartment of the left knee which was constitutional, age and weight related.
Overall, the Tribunal prefers the conclusions of Mr Haig and Dr Khursandi that the November 2012 incident did not contribute to a significant degree to her left knee condition. Their evidence was not inconsistent with that of Mr Miller, who did make concessions that at the least the pre-existing disease was the predominant cause of the current clinical status. It is also important to bear in mind with respect to Mr Miller that he was not given any of the material concerning the symptoms suffered or experienced by the Applicant in her left knee between 2004 and 2008. The failure of the Applicant to provide this history to Mr Miller (it will be recalled that in his report at paragraph 3.3 “Past History” she stated there were no previous problems with the right shoulder or the left knee) limited his ability to comprehensively express an opinion on this topic and its effect on the evolution and current clinical status of her left knee. He did in the witness box, particularly in cross examination when these matters were put to him, state that it was possible to conclude an aggravation. However, as Mr Miller did not have the benefit of an appropriate patient history it is difficult for the Tribunal to prefer his evidence over that of Mr Haig and Dr Khursandi.
It should also be noted that in Mr Haig’s report he noted the Applicant did not mention what he described as “a significant past history to her left knee”. However, he had access to several of the documents produced on summons which enabled him to comment on that history, and it fortified his opinion concerning the left knee following a path of increased degenerative change as he described it. This is another reason why particularly Mr Haig’s report is preferred over that of Mr Miller.
On this topic, it should be further noted that in Dr Khursandi’s 18 September 2015 report he recorded under the heading “Past History” that the Applicant denied having any left knee symptoms prior to the onset of pain following the November 2012 incident.[76] Nonetheless, he identified symptoms and signs of moderate osteoarthritis of the left knee when he assessed her in September 2015. He was able to conclude that there was pre-existing degeneration in the left knee as previously described. The Tribunal also accepts his report and prefers it to that of Mr Miller concerning the current condition of the Applicant’s left knee.
[76] Document ST42 of the supplementary T documents.
There is a further reason the Tribunal considers that the November 2012 incident did not contribute to the Applicant’s current left knee condition, and alleged consequent need for a total knee replacement. Mr Harris carried out a left knee arthroscopy on 8 August 2013 after a previous claim was made by the Applicant to Comcare. In a report to the Applicant’s then treating general practitioner on 19 September 2013,[77] Mr Harris observed that she was making good progress six weeks after that surgery. It also recorded that she had minimal discomfort. Mr Harris’ observations were subsequently corroborated in the later reports of Mr Donohue referred to earlier in these reasons.[78] Both those reports confirm that after the procedure performed by Mr Harris the Applicant made a full and complete recovery. Her knee returned to normal. This patient history was provided by the Applicant to Mr Donohue. There seems no reason to doubt that this was indeed the case and an accurate recording of that patient history provided by the Applicant. More likely than not the injury to her left knee arising from the November 2012 incident, if indeed it was an injury, had resolved after the procedure that was performed by Mr Harris. At that stage a total knee replacement was not necessary.
[77] That report of Mr Harris is at page 33 of the Respondent's tender bundle.
[78] The reports concerned are those of 19 December 2016 at page 69 of the Respondent's tender bundle and the undated report exhibit "A-5".
In the undated report from Mr Donohue to Dr Aung, he records that he saw the Applicant regarding her painful left knee following some falls on a cruise ship. It will be recalled that the clinical notes, Mr Donohue’s report and her own evidence record that she fell on several occasions whilst undertaking that cruise, details of which have been previously referred to in these reasons. The consistency of this contemporaneous documentary evidence, as verified by the Applicant in the witness box, leads the Tribunal to conclude that, on the preponderance of the evidence, the condition currently suffered in her left knee was more likely than not to have been caused by the more recent falls which aggravated the pre-existing degenerative disease.
By reason of the foregoing matters the Tribunal will make the following orders in application 2018/7300:
The time within which the Applicant may request reconsideration of the determination made by the Respondent 3 April 2018 is extended to 10 October 2018.
The second reviewable decision is affirmed.
CONCLUSION
In application 2016/5274 the first reviewable decision is set aside. In substitution therefore, the orders following are made:
The Applicant has continued to suffer from 10 June 2016 to the present date and at the present date, from the effects of the injury identified as:
(a)Subacute avulsion fracture of the great cubicle of the proximal humerus right side;
(b)Severe rotator cuff pathology right side with tears of the supraspinatus, infraspinatus subscapularis tendons, fatty atrophy of the supraspinatus muscle, biceps tendinosis and superior labral tear and signs of glenohumeral osteoarthritis responsible for pain and movements restriction in the right shoulder joint.
(i)Sustained on 20 November 2009, arising out of her former employment with the Bureau of Meteorology, resulting in a need for medical treatment pursuant to section 16 of the SRC Act.
In application 2016/5274, the Respondent shall pay the Applicant’s costs and disbursements in respect of the proceedings pursuant to section 67 of the SRC Act.

In application 2018/7300 the time within which the Applicant may request reconsideration of the second reviewable decision is extended to 10 October 2018.
The second reviewable decision is affirmed.

I certify that the preceding 155 (one hundred and fifty-five) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member
........................[sgd]....................................
Associate
Dated: 14 January 2020

Dates of hearing:
18, 19 and 20 November 2019

Advocate for the Applicant: Mr Joe Ferwerda

Solicitors for the Applicant: Maurice Blackburn Lawyers

Advocate for the Respondent: Mr Michael Snell

Solicitors for the Respondent Lehmann Snell Lawyers

Dates of hearing:	18, 19 and 20 November 2019
Advocate for the Applicant:	Mr Joe Ferwerda
Solicitors for the Applicant:	Maurice Blackburn Lawyers
Advocate for the Respondent:	Mr Michael Snell
Solicitors for the Respondent	Lehmann Snell Lawyers