Ziade and Australian Postal Corporation (Compensation) - [2024] AATA 2586

Ziade and Australian Postal Corporation (Compensation) [2024] AATA 2586 (16 July 2024)
Division:GENERAL DIVISION
File Number(s):2019/7512; 2023/8320
Re:Alexander Ziade
APPLICANT

AndAustralian Postal Corporation
RESPONDENT

DECISION
Tribunal:Mr S. Webb, Member
Date:16 July 2024
Place:Sydney

The decision under review in application 2019/7512 is varied to the extent that Star Track is liable to pay Mr Ziade compensation in respect of the 6 August 2019 ‘injury’ under s 14, s 16 and Division 3, Part II of the Safety, Rehabilitation and Compensation Act 1988 up to and including 6 November 2019.
The parties have not been heard in respect of orders for costs. Unless contrary submissions are made within 14 days, the Tribunal will order Star Track to pay Mr Ziade’s reasonable costs of this application as agreed or taxed.
The decision under review in application 2023/8320 is affirmed.
………[SGD]……………………………….
Mr S. Webb, Member
CATCHWORDS
WORKERS COMPENSATION – compensation claims – alleged shoulder injuries – left and right shoulder pathology – delivery driver duties in employment – work incident involving impact on shoulder – nature and conditions of employment – causal thresholds for ‘disease’ and ‘injury (other than a disease)’ – meaning of ‘aggravation’ – unreliable evidence – divergent expert medical opinions – temporary symptoms with use in the course of the employment – no aggravation injury – natural progression of degenerative condition – effusion indicative of acute injury – temporary impairment and incapacity for work – medical treatment – entitlements to compensation during a period – decision varied
JURISDICTION – scope of reviewable decision – alleged invalidity of primary determination – determination of temporal limit on liability – legislative construction – contemporaneous determination of threshold liability and entitlement under specific heads of compensation – requirement for a claim – imprecise language – determination not invalid – defect in determination curable on reconsideration or review – power to make fresh decision – jurisdiction to review reviewable decision – power to decide all matters before previous decision-maker – Tribunal has jurisdiction
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) ss 25, 37, 43
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5, 5A, 5B, 6, 7, 14, 16, 19, 52,53, 54, 58, 60, 62, 64, 67, 103, 104
CASES
Lees v Comcare [1999] FCA 753
Fuad v Telstra Corp Ltd [2004] AATA 1182
Irwin v Military Rehabilitation and Compensation Commission [2009] FCAFC 33
Comcare v Lofts [2013] FCA 1197
Abrahams v Comcare [2006] FCA 1829
Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21 Canute v Comcare [2006] HCA 47
Australian Postal Corporation v Oudyn [2003] FCA 318
Rosillo v Telstra Corporation Limited [2003] FCA 1628
Duong v Australian Postal Corporation [2005] FCA 991
Riddle v Telstra Corporation Limited [2006] FCA 58
Telstra Corporation Ltd v Hannaford [2006] FCAFC 87
Prain v Comcare [2017] FCAFC 143
Woodhouse v Comcare [2021] FCAFC 95
Comcare v Laidlaw [1999] FCA 40
Military Rehabilitation and Compensation Commission v May [2016] HCA 19
Bailey v Broadsword Marine Contractors Pty Ltd [2017] FCAFC 219
Wuth v Comcare [2022] FCAFC 42
Comcare vMooi[1996] FCA 1587
Comcare v Reardon [2015] FCA 1166
REASONS FOR DECISION
Mr S. Webb, Member
16 July 2024
Alexander Ziade drove trucks and delivery vans for several employers over a long period. He was employed as a delivery driver by Star Track Express Pty Ltd (Star Track). On 1 July 2016, Star Track became a licensee under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). Mr Ziade lodged claims for compensation under the SRC Act in respect of alleged shoulder injuries which he asserts were caused by events in his Star Track employment. The Australian Postal Corporation (Australia Post) (Star Track’s compensation claims manager) accepted liability for a right shoulder injury during a closed period and rejected liability for bilateral shoulder injuries said to have been caused by the nature and conditions of Mr Ziade’s Star Track employment. These determinations were affirmed on reconsideration. Mr Ziade applied for review of these decisions by the Tribunal.
Application 2019/7512 is in respect of Mr Ziade’s claim alleging a right shoulder injury. Application 2023/8320 is in respect of Mr Ziade’s claim alleging bilateral shoulder injuries. Australia Post lodged documents under s 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act) in each application. For ease of reference, I will refer to those documents in Application 2019/7512 as ‘T’ documents and in Application 2023/8320 as ‘AT’ documents.
When the applications came on for hearing, issues arose in respect of the Tribunal’s jurisdiction and the validity of the primary determination to accept liability under s 14 of the SRC Act for Mr Ziade’s claimed right shoulder injury during a closed period. I dealt with this in the hearing and gave an oral ruling with supporting reasons. For the avoidance of any doubt, I will provide further explication of the ruling and the reasons for it in this decision.
FACTS
The following findings are made on the evidence, applying the reasonable satisfaction standard.
Mr Ziade was born in 1982. He is an Australian citizen of Lebanese descent.
He obtained an MR Heavy Rigid Truck Licence in 2008 and, thereafter, obtained employment as a delivery driver with Toll Fast.
From 2010 to 2013 Mr Ziade was employed as a truck driver by TNT before returning to work for Toll Fast, where he continued in employment until June 2014.[1]
[1] AT5, folio 11.
On 25 July 2011, Dr Abdullah Zobair, a general practitioner, referred Mr Ziade to Dr Trantalis, an orthopaedic surgeon, for opinion and management in respect of a painful right elbow. It appears, in or about December 2010, Mr Ziade injured his right elbow and an Xray was taken which Dr Zobair noted “shows ? old fracture olecranon process”.[2] Subsequently, on 16 December 2011, Dr A. Khan, another general practitioner, reported a conservative approach to management was advised.[3] It appears Mr Ziade consulted Dr Khan on 10 November 2011 in respect of “Rt elbow tenderness and pain in lateral epicondylar area, upper thoracic pain, which is limiting his ability to drive specially while turning the steering wheel”.[4] Dr Khan considered Mr Ziade’s “condition is aggravation of his previous injury as well as his old Rt Elbow xrays shows old fracture at Rt olecranon process which may be the cause of his Rt elbow pain as he hit it repeatedly while lifting and moving boxes”.[5]
[2] Exhibit 3, page 194.
[3] Ibid, page 195.
[4] Ibid.
[5] Ibid.
On 24 October 2014, Mr Ziade underwent an Australia Post pre-employment medical examination conducted by Dr Elton Chen (a general practitioner).[6] Mr Ziade completed a questionnaire in which he answered No to the questions:
13) Have you ever had an injury or disease at work?
15) Do you have any difficulty … reaching above shoulder height?
21) Have you ever had any other illnesses, injuries or fractures?
Do you or have you ever experienced the following?
32 Back pain or disc problems?
35 Shoulder pain, tendonitis or frozen shoulder?[7]
Dr Chen indicated Mr Ziade’s shoulders were normal on examination.[8]
[6] AT5.
[7] Ibid, folios 12-13.
[8] Ibid, folio 16.
On 5 November 2014, Mr Ziade commenced employment with Star Track.
On 15 November 2015, Mr Ziade consulted Dr Irfan Malik (a general practitioner). The doctor noted “occasional shoulder pain especially while working overhead”.[9]
[9] AT6, folio 19.
On 15 December 2015, Mr Ziade consulted Dr Mir Ali (a general practitioner). The doctor noted:
History:
CC: Right shoulder injury and chronic back pain.
Run fleet driver, health assessor at work assed today and not fit for work, advice physiotherapy/fitness programme.
Recurrent pain in back, no pain at night, bowel and urine regular.
…
Back: Pain in back and paraspinal area, Forward motion near full.[10]
[10] Ibid, folio 18.
On 22 December 2015, Matthew Messinis, a physiotherapist, reported:
On assessment today:
- [Mr Ziade] had full painfree ROM
- Lifted 25kg 10 times to waist height with good lifting technique and no pain
At this stage, I feel [Mr Ziade] is fit to return to work.[11]
Mr Messinis attached a “RUN FLEET DRIVER (SUMMARY)” which sets out a “PHYSICAL DEMANDS” Action Scale with reference to the physical and functional demands of a Run Fleet Driver with modifications “as per GP”.[12]
[11] Exhibit 3, page 82; pages 147 and 148 refer.
[12] Ibid, page 83.
On 17 February 2016, following changes in the corporate structure of Star Track and Australia Post, Mr Ziade entered a contract of employment with Star Track.[13]
[13] Exhibit 4, page 1.
On 1 July 2016, the licence Star Track was granted under ss 103 and 104 of the SRC Act came into effect.[14]
[14] Exhibit 6, page 1.
On 19 November 2016, Mr Ziade again consulted Dr Malik, who noted “occasional shoulder pain good rom”.[15]
[15] Exhibit 3, page 16.
On 16 May 2017, Mr Ziade consulted Dr Shahrian Chowdury (a general practitioner). Dr Chowdhury referred Mr Ziade for bilateral shoulder Xray and ultrasound and noted:
shoulder pain right more than left - ? tendon rupture - ? tendonisis
good rom
The radiological imaging was reported to show:
ULTRASOUND LEFT SHOULDER
Full thickness tear to the anterior and mid bundles of the supraspinatus tendon measuring up to 1.8 cm. The subacromial bursa is mildly thickened and impinges on abduction as well as rotation consistent with bursitis. No other rotator cuff tear is demonstrated and there is no significant AC joint degeneration or joint effusion.
…
ULTRASOUND RIGHT SHOULDER
Minimal increase in the fluid in the biceps synovial sheath without definite biceps tedinopathy. Subacromial bursal is thickened up to 1.7 mm and impinges consistent with bursitis. There is a mid partial tear of the supraspinatus tendon and full thickness posterior tear of the supraspinatus tendon. The posterior tear measures 1.6 cm in length. No other rotator cuff tear is demonstrated. No significant joint effusion demonstrated.[16]
…
Left and right shoulder Xrays were reported to demonstrate no significant glenohumeral or AC joint degeneration, or bony bankart deformity or fracture, although small acromial spurs were noted.
[16] AT8; Exhibit 3, page 91.
Later, on 16 May 2017, Mr Ziade consulted Dr Ali, who noted:
History:
CC: Right shoulder pain and xray and USG done for both shoulder.
pulling truck door everyday
USG of shoulder shows Bursitis both shoulder.
EXAMINATION: …
Right shoulder, movement near full…
Reason for contact:
Bilateral Subacromial Bursitis
Supraspinatous tear.
Actions:
Diagnostic imaging requested: USG right shoulder, Steroid inj for right bursitis
…[17]
[17] Exhibit 3, page 15.
On 18 May 2017, Dr Prasad Kundum (a radiologist) administered an ultrasound guided right shoulder injection of 1ml of Celestone (a steroid) into the subacromial bursa.[18]
[18] Ibid, page 92.
On 30 May 2017, Mitch Sharp, a Star Track Duty Manager, issued Mr Ziade a ‘First and Final Written Warning’ in respect of “unsatisfactory conduct”, namely:
Completing the pre-employment paperwork you completed prior to commencing at StarTrack falsely, in particular:
-    Noting the incorrect reason for leaving your previous place of employment, being redundancy.
-    Withholding information about a previous injury sustained in a previous workplace.
-    Withholding information about previously making a worker’s compensation claim against any employee.[19]
[19] AT9, folio 23.
Mr Sharp found the explanation Mr Ziade provided, that he made a “legitimate mistake when incorrectly completing the worker’s compensation section”, to be insufficient.[20]
[20] Ibid.
On 19 July 2018, Mr Ziade consulted Dr Chowdhury who noted:
…
Diagnostic imaging requested: USS guided cortisone right shoulder + USS guided cortisone RIGHT TENNIS ELBOW…
Hx of subacromial bursitis and latyeral epicondylitis – pt requesting above.
…[21]
[21] Exhibit 3, page 12.
On 1 August 2018, Mr Ziade reported an incident involving his left shoulder which allegedly occurred when lifting a television:[22]
started to experience weakness in left shoulder
when loading I felt a twinge in my left shoulder
lifted the item the wrong way and should have left on pallet[23]
[22] AT16, folio 41.
[23] AT10, folio 25.
Also on 1 August 2018, Dr James Tsia, a general practitioner, issued a medical certificate in which he diagnosed “L shoulder strain. Possibly rotator cuff” caused by:
Lifting 75” TV with a work mate. Felt twinge in L shoulder. ↑ing pain.[24]
[24] AT64, folio 235.
On 2 August 2018, Mr Ziade consulted Dr Ali. The doctor noted:
History:
CC: Lifting TV at work yesterday at 0930 and hurt left shoulder and pain worse overnight.
Pain in left shoulder, referral given for USG and Physiotherapy.
…
EXAMINATION: …
Left shoulder: Pain and tender in Deltoid area and joint.
Left shoulderZ:Movement near full.
…[25]
[25] Exhibit 3, page 11; page 118 refers.
An ultrasound of Mr Ziade’s left shoulder taken on 2 August 2018 was reported to demonstrate:
There is bicipital tendon sheath haemorrhage. There is a full thickness tear of the anterior and mid aspects of the supraspinatus tendon extending to a length of 1.3cm on a background of tendinopathy. There is bursitis but no blockage.[26]
[26] AT12, folio 28.
On 3 August 2018, Mr Ziade consulted a student doctor and Dr Chowdhury. The following history was noted:
Bilateral shoulder injury 2 days ago with lifting TV at work.
No pain at rest, but with certain movements – pulling/pushing things forwards
Panadeine forte helped at night
Received USS results of the left shoulder – supraspinatus tear, bursitis
Repetitive movement injury on right shoulder a year ago, managed with cortisone injections – injection due today
…
Examination:
Shoulders appear normal, no erytheama, flexion/extension, adduction, adduction not limited
…[27]
Dr Chowdhury noted a diagnostic imaging request for “USS guided LEFT shoulder cortisone”.
[27] Exhibit 3, pages 10-11.
On 7 August 2018, Dr Tsia issued a medical certificate in which he diagnosed:
Full thickness tear of athe anterior and mid aspects of supraspinatus tendon and subacromial/subdeltoid bursitis.
…
Occurred whilst lifting 75” TV
…
Nil significant [pre-existing factors]
…
Referral to Professor Murrell (shoulder surgeon) for opinion.[28]
[28] AT64, folios 236-237.
On 7 August 2018, Mr Ziade lodged a compensation claim in respect of an alleged “shoulder” injury, allegedly on 1 August 2018.[29] In the claim, Mr Ziade answered No to the questions Have you ever had a similar injury/illness? And Have you ever claimed compensation before for a similar injury/illness?, and he certified that the “information supplied in the claim form is complete and correct”.[30]
[29] AT15.
[30] Ibid, folio 37.
On 8 August 2018, an initial assessment was undertaken, and the following information was reported:
Mr Ziade advised that on the 01.08.2018 he was completing his normal duties and was approximately 2 and a half hours into his shift. He advised that he was taking two TVs off of a pallet, he advised that as he was taking one of the TVs off the pallet he felt that he had too much weight on one side, he advised that he felt a twitch or something 'twinge'. Mr Ziade then reported the incident to Chirs Pier and that day went to see the WorkReady GP Dr James Kim Hua Tsia. He advised that Dr Tsia advised that he was fit for 8 hours per day, 5 days per week and that provided him with some Panadeine Forte and Mobic and referred him for an ultrasound. Mr Ziade advised that the following day he felt 'wacked out' and by Friday the 03.08.2018 went to see his own GP Dr Shaz who provided him with a cortisone injection who bulk billed him for the consultation and the cortisone injection. He advised that he re reviewed with the WorkReady GP on the 07.08.2018 who further referred him for an MRI/Xray.
Mr Ziade and rehabilitation then re reviewed with the WorkReady GP on the 14.08.2018;
On the 14.08.2018 RC completed NTDCC with Mr Alex Ziade. Present at the review were Mr Ziade, Dr James Tsia (NTD) and Mr Ryan Korch (RC). IW advised that he was feeling improved since the start of cortisone injection and the physiotherapist. NTD reviewed MRI results and confirmed nil recent injury at the date of MRI. NTD confirmed that he had been emailed by physiotherapist onsite who advised that IW had full strength and full range. NTD queried whether trial PIDs or full PIDs. RC advised of the nature of duties consisting of minimal manual handling, NTD issued final PIDs.[31]
[31] AT18, folio 51.
On 10 August 2018, an MRI scan was taken of Mr Ziade’s left shoulder.[32] The MRI was reported to demonstrate:
1.    Minimal AC joint degeneration arguably on the background of an old clavicular superior AC ligament avulsion fracture.
2.    Small SASD bursal effusion.
3.    Incomplete full thickness tear of the anterior fibres of supraspinatus on the background of a PASTA lesion of its intact posterior fibres and degenerative undersurface erosion/fraying.
4.    PASTA lesion of the superior insertional fibres of subscapularis.
5.    Some degenerative signal in the superior labrum on the background of a sublabral sulcus with an apparent attritional SLAP 1 tear.[33]
[32] Exhibit 3, pages 217-218.
[33] Ibid, page 218.
On 14 August 2018, Dr Tsia issued a medical certificate in which he stated Mr Ziade was fit for pre-injury duties and:
Currently feels well. Good ROM left shoulder
…
Referral to Professor Murrell (shoulder surgeon) for opinion -> not needed[34]
[34] AT64, folio 240.
On 23 August 2018, Australia Post issued a determination refusing Mr Ziade’s 7 August 2018 compensation claim.
On 29 August 2018, Mr Ziade requested reconsideration of this decision:
I would like a reconsideration of my claim due to these factors .
1. I have been driving trucks with roller doors for 2 years at mitchinbury depo doing over 70 times of closing and opening of the roller door.
2. My current role is lifting gates in a bulk truck, multiple times a day for 2 years as well , with many times the gates jam and get stuck.
3. Side Curtin many times get jammed when pulling opening or closing or even the centre pole Jams as well.
4. Closing the door in the truck multiple times a day .
These are all some of daily work activities that can lead to a a tear or osteoarthritis or RSI injury over time in the shoulders .
I have reported a injury of my shoulder back when I was at mitchinbury.
I believe the injury is over a long term of work with the company.[35]
[35] AT19, folio 53.
On 30 August 2018, Australia Post issued a notice under s 58(1) of the SRC Act requiring Mr Ziade to provide information about his treating medical providers over the previous 7 years as well as the clinical notes of Dr Tsia and information about “all the medication you are utilising, prescribed or otherwise relating to your claimed condition”.[36]
[36] AT20, folio 54.
On 4 September 2018, Mr Ziade provided information about his treating doctors, namely Dr Ali and Nick Zaphirolpoulos.[37]
[37] AT21, folio 59.
On 5 September 2018, Mr Ziade informed Australia Post he “had cortisone injections on both shoulders and I take XXXobic 15mg or I take Naprosyn 1000mg. If there is a flare up I’ll take Panadeine Forte”.[38]
[38] AT23, folio 64.
On 11 October 2018, Australia Post issued a reconsideration decision which affirmed the 23 August 2018 determination refusing Mr Ziade’s claim for compensation in respect of a “shoulder” injury.[39] On 25 November 2020, Mr Ziade applied for review of this decision by the Tribunal (application number 2020/7776).[40] The application was well out of the prescribed period for lodging such an application, and it was withdrawn (and taken to have been dismissed) on 1 February 2021.[41]
[39] AT24.
[40] AT38.
[41] AT41.
In a consultation with Mr Ziade on 22 November 2018, Dr Chowdhury noted:
Diagnostic imaging requested: USS guided cortisone shoulder bilateral …
Hx of supraspinatus tendon tears and subacromial bursitis bilateral – not candidate for repair …[42]
[42] Exhibit 3, page 8.

Later on 22 November 2018, Mr Ziade underwent ultrasound guided steroid injections into the subacromial bursae of both shoulders.[43] On 14 December 2018, Mr Ziade obtained physiotherapy treatment in respect of “Bilat sh Re TEARS … had bilat cortisone 2/52 ago for shoulders”.[44]
[43] Ibid, pages 62-63.
[44] Ibid, page 95.
On 18 May 2019, Dr Chowdhury again consulted Mr Ziade and noted:
Reason for contact:
Back pain
Actions:
Diagnostic imaging requested: USS SHOULDERS BILATERAL WITH GUIDED CORTISONE IF INDICATED…
previous hx of bursitis bilateral - ?? recurrence/needs top up
…[45]
[45] Ibid, page 4.
On 25 March 2019, Mitch Sharp, Star Track’s Melrose Park Facility Manager, issued a ‘Letter of Expectation’ to Mr Ziade in respect of “a pattern of concerning behaviour”, including “recording conversations using an app on your phone”.[46] Mr Sharp stated:
While you will not receive a formal warning in relation to this matter the business has decided to place the following condition on your ongoing employment:
- You are hereby directed to leave your mobile phone and any other item capable of recording conversations in the workplace either in your vehicle, locker or bag…
- Any breach of this condition will result in disciplinary action which will likely lead to the termination of your employment.
[Mr Ziade], a review of your workplace records also shows that you were issued a First and Final Written Warning on 30 May 2017 for falsely completing your pre-employment paperwork.
[46] AT25.
On 25 May 2019, Mr Ziade underwent ultrasound guided steroid injections into both shoulders.[47]
[47] Exhibit 3, page 64.
On 1 June 2019, Dr Chowdhury referred Mr Ziade to Dr Hugh Jones, a shoulder surgeon, and stated:
… [Mr Ziade] … presents with bilateral shoulder pain, worse on the right. He has a few tears in the tendon. He was wanting a trial of cortisone initially however this has failed to improve his pain…[48]
[48] Ibid, pages 4 and 112.
On 6 August 2019, Mr Ziade was raising the hydraulic tailgate of a delivery truck in the course of his employment duties at the David Jones dock in the Westfield Shopping Centre, Bondi Junction, when the tailgate jammed against the dock and suddenly released, causing Mr Ziade to fall onto his right side. Mr Ziade “fell and landed on the tailgate with his right shoulder/arm”.[49] He experienced immediate pain to his right shoulder.[50] He was assisted to attend a doctor at ‘Gallen+Gray (Jobfit practice)’. The doctor, Dr Mandlenkosi Sibanda (a general practitioner), applied a sling for Mr Ziade’s right arm and referred him for Xray.[51] Dr Sibanda issued a Work Ready Report – Certificate of Physical Capacity in which he diagnosed “Right shoulder and arm contusion” and certified Mr Ziade fit for suitable duties with restrictions.[52]
[49] T4, folio 21.
[50] T6, folio 24.
[51] Ibid.
[52] T4, T7 and T13.
Mr Ziade returned to work on restricted duties.
On 7 August 2019, an Xray was taken of Mr Ziade’s right shoulder and right elbow.[53] The radiologist reported:
There is mild degenerative change in the greater tuberosity and in the inferior aspect of the right acromion. No subacromial spur formation, fracture or subluxation is seen. Xray assessment of the right elbow is considered within normal limits.[54]
[53] T10.
[54] Ibid.
On 8 August 2019, an ultrasound of Mr Ziade’s right shoulder was conducted of which it was reported:
There is a high-grade supraspinatus tear which measures approximately 9mm in length with flattening of the overlying bursal contour, subdeltoid bursal and biceps tendon sheath effusion. There is mild tenderness at the acromio-clavicular and gleno-humeral joint line. No other abnormality is seen.[55]
The supraspinatus tear was reported to be a “High-grade partial thickness” tear.[56]
[55] T12, folio 35.
[56] Ibid.
On 13 August 2019, Mr Ziade lodged a Claim for Rehabilitation and Compensation in respect of the “Right shoulder/arm” injury/illness which occurred on 6 August 2019.[57] In the claim form, Mr Ziade answer No to the following questions: Have you ever had a similar injury/illness? And Have you ever claimed compensation before for a similar injury/illness? He certified that “The information that I have supplied on this form and any attachments is complete and correct”.[58]
[57] T15, folio 39.
[58] Ibid.
On 14 August 2019, a ‘Master Rehabilitation Program’ was determined with a goal of returning Mr Ziade to his previous full duties and hours by 6 November 2019.[59] In this context, Mr Ziade completed an Orebro Musculoskeletal Pain Screening Questionnaire (Short-form).[60] A ‘Rehabilitation Upgrade Program’ was determined to commence on 15 August 2019, proceeding in 8-stages to a target end date of 6 December 2019.[61] Medical restrictions certified by Dr Pek, a general practitioner, were recorded:
As per Dr Pek from 09.08.19 to 16.08.19:
Occasional: twist, bend, squat/kneel
Seldom: lift/carry 2kg, keyboard, grasp, fine manipulation, push/pull
Unable to perform: work above shoulders, climb stairs/ladder, drive motor vehicle/van, drive truck, operate forklift.[62]
[59] T21, folio 68.
[60] Ibid, folio 71.
[61] T25.
[62] T25, folio 76.
On 20 August 2019, an MRI scan was taken of Mr Ziade’s right shoulder.[63] This was reported to show:
Full-thickness complete rotator cuff rupture: 28 mm retraction of the tendon. Minimal tendon preservation along the anterior margin and a posterior margin formed by a residual tendinotic posterior third infraspinatus tendon.
The supra and infraspinatus muscles are normal in volume but with oedema suggesting subacute atrophy. A more chronic rotator cuff tear appears likely.
Chronic Hill-Sachs lesion: Moderate wide concavity with minimal underlying bone marrow oedema suggesting a possible acute on chronic injury.
Anterior labral tear: Thickened retracted anterior inferior labrum in association with a thickened medially retracted anterior inferior glenohumeral ligament. This has the appearance of a chronic, recurrent anterior dislocation forming an APSLA lesion.
Acute partial-thickness tear long head biceps tendon: Focally thinned long head biceps tendon adjacent to a ruptured biceps pulley and a full-thickness tear in the superior subscapularis tendon. There appears to be an adjacent rupture of the coracohumeral and superior glenohumeral components. A thickened inhomogeneous intra-articular tendon segment inserts on to a normal appearing superior labrum. This appears to be the most likely acute lesion.
Moderate joint effusion.[64]
[63] T27.
[64] T27, folio 83.
On or about 20 August 2019, Mr Ziade was assigned office duties.[65]
[65] AT49, folio 157-158.
On 23 August 2019, Dr Pek referred Mr Ziade to Associate Professor Mark Haber for treatment,[66] and certified Mr Ziade was fit for suitable duties with restrictions.[67]
[66] T28.
[67] T31.
On 30 August 2019, Dr David Ness, an orthopaedic surgeon, provided an Independent File Review report to Australia Post.[68] Dr Ness reported:
On reading the MRI report, I consider it likely Mr Ziade has prior history of right shoulder dislocation. I cannot determine the current work injury from the available information.[69]
[68] T33.
[69] T33, folio 99.
On 3 September 2019, Associate Professor Haber provided a report to Australia Post in which he reported:
MRI demonstrated: full thickness rotator cuff tear supraspinatus and partial thickness tear of the long head of biceps tendon. With no significant atrophy this is consistent with an acute injury.
… Due to the presence of a large full thickness tear and persistent symptoms, I have recommended a rotator cuff repair.
The doctor considered that Mr Ziade’s employment “is a substantial contributing factor to the current condition and need for surgery”.[70]
[70] T35, folios 106 and 107.
On 30 September 2019, Dr Ness produced a report for Australia Post, having examined Mr Ziade on 24 September 2019. Dr Ness reported:
Based on the mechanism of injury, the physical examination findings and the imaging results, I consider Mr Ziade sustained a soft tissue injury from direct impact onto the lateral aspect of his right shoulder. This soft tissue injury has ceased. Current physical examination findings are due to a large pre-existing rotator cuff defect.
…
I obtained a clear history of the position of the right arm when Mr Ziade fell. It was not outstretched, rather was by the side of his body. He would have thereby sustained a lateral compression force to the right arm and shoulder…
…
Magnetic resonance imaging has demonstrated longstanding major pathology in Mr Ziade’s right shoulder. There is a rotator cuff defect, a full thickness tear, running from the subscapularis through the supraspinatus and into the infraspinatus tendon. There is atrophy of the supraspinatus and infraspinatus muscles. In addition to the rotator cuff pathology, there is a bony defect in the posterior humeral head, with little underlying bone oedema, and a detached anterior inferior labrum. These latter findings point to a past shoulder dislocation.
…
The lateral compression force on his shoulder did not worsen the pre-existing pathology. I do not relate the current loss of right shoulder function to the work injury. It is due to the pre-existing pathology.[71]
[71] T40, folios 121, 126 and 127.
On 4 October 2019, Australia Post issued a determination accepting Mr Ziade’s compensation claim in respect of “Right shoulder and arm contusion” sustained on 6 August 2019.[72] The decision maker stated:
After careful consideration of all the evidence submitted in relation to your claim, I have accepted liability for a closed period under Section 14(1) of the SRC Act 1988 for “Soft tissue injury to the right shoulder from 6 August 2019 to 4 October 2019…
…
Although the evidence supports liability for “Soft tissue injury to the right shoulder”, I am not satisfied that Australia Post Group is currently liable to pay compensation for medical treatment under Section 16 of the abovementioned Act and/or incapacity payment under Section 19 of the abovementioned Act after 4 October 2019. This decision is based on the Independent Medical Assessment by Dr Ness on 24 September 2019…
Dr Ness opined that “I consider the soft tissue injury sustained at work on 06 August 2019 has ceased. The current symptoms and signs relate to a long standing rotator cuff defect in the right shoulder.”
Therefore, having considered Dr Ness’ opinion, I hereby determine that Australia Post Group is not currently liable to pay compensation to you under Sections 16 & 19, of the abovementioned Act in respect of “Right shoulder and arm contusion”, (date of injury 08 August 2019) after 4 October 2019.[73]
[72] T41.
[73] T41, folio 130.
On 15 October 2019, Mr Ziade’s legal representative, Gerald Malouf and Partners, requested reconsideration of this decision.[74]
[74] T42, folio 133.
On 1 November 2019, Australia Post issued a reconsideration decision, in which the decision maker stated:
I have had the opportunity to undertake a full review of the relevant material on your claim file and am satisfied that the determination denying liability to pay compensation for medical treatment and incapacity for work on and from 4 October 2019, pursuant to sections 16 and 19 of the SRC Act, is correct.
Therefore, I have decided to AFFIRM the determination of 4 October 2019.
On 19 November 2019, Mr Ziade lodged an application for review of this decision by the Tribunal.[75]
[75] T1.
Mr Ziade took annual leave in March 2020. On his return to work on 6 April 2020 he resumed “driving and delivery duties however on light duties until on or about 2021”.[76]
[76] AT49, folio 158.
On 16 May 2020, James Athanasou, a consultant in vocational guidance and rehabilitation, provided a report to Lawyers representing Mr Ziade.[77] Mr Athanasou did not refer to Mr Ziade having any issues with his shoulders prior to the incident on 6 August 2019 and reported:
As a result of this injury [in August 2019], this man lost his capacity to return to full pre-accident duties as a truck driver. He was assigned to light duties and then office work and more recently recommenced work as a small van driver.
…
On the basis of the information available to me, it would appear that had the injury not occurred then this man had the potential to continue in the workforce at intermediate transport level as a truck driver until retirement.[78]
[77] AT29.
[78] Ibid, folios 85 and 87.
On 18 May 2020, Dr James Bodel, an orthopaedic surgeon, provided a report to Mr Ziade’s lawyer.[79] The doctor reported that Mr Ziade “has had no prior problems with the right shoulder before this injury” and, following a clinical examination which showed a restricted range of right shoulder movement, reported:
I have carefully read the chronology that has been provided in regard to this gentleman’s injury to the region of the right shoulder, the investigations undertaken, x-rays and ultrasounds of shoulder and elbow and the MRI scan of the right shoulder which does show acute pathology in the region of the right shoulder as well as the chronic Hill-Sachs lesion which may have pre-existed this injury. The episode of injury that occurred during the course of his day’s work however has caused an additional acute injury to the rotator cuff which had been asymptomatic prior to that injury on 06 August 2019.
…
He has ongoing pain and stiffness in the region of the right shoulder and he needs treatment which has been offered to him and that is in the form of the surgery.[80]
[79] AT30.
[80] Ibid, folios 92, 93 and 94.
On 28 May 2020 and 20 August 2020, Dr Ben Dickson, a general practitioner, issued a medical certificate in which he stated Mr Ziade had capacity for work subject to a lifting restriction of 10 kgs and diagnosed the following work-related injury on 6 August 2019:
(R) shoulder strain, full thickness complete rotator cuff rupture, anterior labral tear, long head biceps tendon tear (MRI); Chronic pain with psychosocial barriers.[81]
[81] AT64, folios 243 and 246.
On 10 August 2020, Dr Neil McGill produced a report for Australia Post.[82] The doctor reported:
[82] AT32.
This 38 year old man could not recall experiencing any right shoulder injury prior to a fall at work on 7 August 2019. A moderate quantity of documentation of health visits was available, none of which mentioned right shoulder symptoms prior to the fall at work. He experienced immediate pain in the right shoulder region at the time of the fall. There has been subsequent major improvement in his pain much that his only analgesia now is very occasional Paracetamol. He is however left with reduced function of the right shoulder proportional to the large rotator cuff tear demonstrated on MRI.
Some of the abnormal findings on MRI were very likely pre-existing, due to prior injury that he had forgotten.
The diagnosis is a large right rotator cuff tear, partial thickness tear of long head biceps tendon, chronic Hill-Sachs bone lesion, and post traumatic/degenerative labral changes.
Although he suffered previous injury to the right shoulder, now forgotten, there was no evidence from the documentation to refute his comment that he had no right shoulder symptom in the years prior to his fall at work and that he has continued to experience right shoulder symptoms since the fall.
I think he continues to suffer the effects of the fall at work on 6/7 August 2019.
He is fit to continue his current modified work duties with a 10kg lifting restriction, no requirement to elevate the right elbow to or above shoulder height, and no frequent repetitive work with the right upper limb. In the absence of surgery, it is unlikely that his functional capacity will further improve substantially.
The surgical treatment proposed by A/Prof Haber is reasonable and related to the work injury, in that the work injury caused the (re)development of symptoms.
His prognosis in the absence of surgery is for a continuation of the current situation. With surgery, the expected recovery detailed by A/Prof Haber in his letter represents the most likely outcome.
My views largely agree with those expressed by Dr Bodel.[83]
[83] Ibid, folio 102 and 103.
Briefed with further material, on 16 September 2020, Dr McGill produced a supplementary report for Australia Post in which he stated:
The notes provided from Centahealth Medical Centre demonstrated that Mr Ziade’s recollection of his lack of shoulder symptoms prior to 7 August 2019, was incorrect. Noting the many entries that referred to his right shoulder and the fact that a surgical opinion had been requested (and possibly obtained) within the preceding 2½ months, strongly suggests that his lack of recollection was intentional.
Regardless of the reason he failed to report his previous troublesome bilateral, right worse than left, shoulder symptoms, it is now clear that he had substantial pre-existing right shoulder symptoms.
The further documentation leads to a change in my views. I agree with the opinion provided by Dr Ness that the presumed injury sustained by Mr Ziade to the right shoulder on 7 August 2019 caused a temporary aggravation and that his ongoing symptoms reflect pre-existing pathology. It is now evident that the pre-existing pathology had been symptomatic over an extended period of time.
He does not continue to suffer the effects of the fall at work on 7 August 2019. The proposed surgical treatment by A/Prof Haber remains reasonable but is not related to Mr Ziade’s work.[84]
[84] AT35, folios 108-109.
On 23 September 2020, Dr Ness provided a further report to Australia Post.[85] The doctor reported:
The medical records indicate that Mr Ziade has rotator cuff disease in both shoulders with a history of symptoms going back at least two years prior to the incident. He was treated for the condition of both shoulders on a number of occasions and not long before the work incident.
At the time of my examination on 24 September 2019, Mr Ziade, in response to my specific questions, related that he had no previous history of right shoulder injury, and had not had any right shoulder symptoms at any time in the past. I consider he should have been able to recall the history that is documented in his medical records, especially the treatment he was receiving shortly before the work incident.
When I examined Mr Ziade on 24 September 2019, I considered there was a large defect in the rotator cuff of the right shoulder. Given the x-ray changes in the subacromial space and the magnetic resonance imaging findings, I opined this defect had been present for some time and pre-dated the work incident. I felt it unlikely that the defect was reparable however, I do not have any issue with a surgeon attempting to repair it, provided he informs his patient he may subsequently find the defect cannot be repaired and that, should a repair be achieved, it may break down after surgery, with the shoulder ending up just as it was before surgery and possibly worse. The cause of the defect is the issue. I opined for the reasons I have outlined in my report and which I have also given above, that the defect was pre-existing.
On 24 September 2019, I was careful to take a clear history from Mr Ziade, especially of the mechanism of injury. I consider the mechanism, as described by him, would not have significantly worsened the pre-existing full thickness rotator cuff defect. This has steadily enlarged over time without any specific trauma, as it does naturally where the rotator cuff is affected by degenerative disease.
…
[85] AT36.
On 20 November 2020, Star Track terminated Mr Ziade’s employment.[86] The termination was consequent to an incident in which Mr Ziade photographed 2 co-workers.[87] Mr Ziade commenced unfair dismissal proceedings in the Fair Work Commission which were subsequently settled by agreement.
[86] AT37.
[87] Ibid, page 119.
Following the cessation of his employment by Star Track, Mr Ziade obtained employment as a delivery driver for a liquor merchant. He left this work after approximately 9 months, and he subsequently commenced and operated a swimming pool cleaning business.
On 1 February 2021, Associate Professor Haber produced a report for Mr Ziade’s lawyer,[88] in which he referred to “the natural history of rotator cuff tears with the risk of tear progression” and recommended a rotator cuff repair. It was Associate Professor Haber’s opinion:
From the history obtained I do believe the patient’s employment an injury is a substantial contributing factor to the current condition and the need for surgery. I believe his current incapacity for work is related to the shoulder injury only…
…
… I do believe the injury on the 6^th August 2019 aggravated his left [sic] shoulder condition and the need for surgery.[89]
[88] AT40.
[89] Ibid, folio 130.

I note Mr Ziade’s taxation records from 2011 to 2021.[90] For reasons which will appear, it is not necessary to expose these documents in any detail.
[90] AT65.
On 16 September 2021, Dr Bodel produced a further report for Mr Ziade’s lawyer,[91] in which he discussed the 20 August 2019 right shoulder MRI scan findings and the absence of any prior injury to Mr Ziade’s right shoulder. It is Dr Bodel’s opinion the MRI shows an acute rupture of the supraspinatus tendon in the region of the right shoulder and some chronic changes in the form of the Hills-Sachs lesion. In his view, the “large rotator cuff tear … is an acute injury”.[92] Dr Bodel also stated:
I am satisfied that Mr Ziade’s injury to the region of the right shoulder has occurred as a consequence of a specific event that occurred at work on 06 July 2019. In addition to that, the nature and conditions of his work from 01 July 2016 through until August of 2019 is a contributing factor which may have caused ongoing pathology in both shoulders prior to that event. Any discomfort was minor and he did not seek any specific treatment for the management of a right shoulder until after the event in August 2019, as far as I can determine. I am satisfied therefore that there is a causal link between the episode of injury in early August 2019 and the need for the surgery as proposed by Professor Haber.[93]
[91] AT43.
[92] Ibid, folio 137.
[93] Ibid, folio 138.
On 14 October 2021, Dr S. Calvache-R, a general practitioner, issued a medical certificate with the same restrictions and diagnosis Dr Dickson certified on 28 May 2020 and 20 August 2020.[94]
[94] AT64, folios 249-251.
On 25 July 2022, Mr Ziade lodged a compensation claim form in respect of “SHOULDERS” and “LONG TERM INJURY FROM THE WORKPLACE” first noticed in 2018.[95] The alleged mechanism of the injury was said to be:
AFTER WORKING CONTINUOUS TIME WORKING IN THE RUN TRUCK , INJURY HAS BEEN CAUSED IN BOTH SHOULDERS CAUSING IT TO AFFECT LONG TERM INJURY PERMEMENT DAMAGE[96]
[95] AT44, folio 140.
[96] Ibid, folio 141.
In the claim form, Mr Ziade answered No to the following questions:
(a)Have you ever experienced the same, or a similar condition, injury or illness, work-related or otherwise? And
(b)Have you ever claimed compensation (whether work-related or otherwise) for the same, or a similar condition, injury or illness?[97]
[97] Ibid.
Mr Ziade signed the Employee Declaration, in which he certified “The information I am providing in this form and in any attachments are a true, complete and correct representation of the relevant facts and events”.
Mr Ziade’s compensation claim was deficient as it did not attach a medical certificate.
On 17 January 2023, Mr Ziade provided information in an unsigned, undated ‘Safety Event report’, including:
using the run trucks pulling and lifting the roller doors on the run trucks, over time has damaged my shoulders and has deteriorated my strength , over 3 years in this field of operation[98]
[98] AT46, folio 149.
Further related information is set out in a ‘Safety Event/Investigation – Output Form’. The ‘Event Date’ is 1 August 2018, and the ‘Title’ is:
Long term workplace injury (shoulders)[99]
[99] AT47, folio 150.
On 20 January 2023, Mr Ziade provided a statement in which he sets out alleged injuries and disabilities:
71. As a result of the subject incident, I sustained the following injuries;
- Right shoulder injury;
- Left shoulder injury;
- Shock
- Psychological injury.
72. As a result of the injuries sustained in the subject incident, I suffered and continue to suffer from the following disabilities and restrictions;
i. Soft tissue injury to both shoulders.
ii. Pain, weakness and limitation of movement of both shoulders.
iii. Pain radiating into the left and right shoulder.
iv. Continuing intermittent pain and stiffness to the right shoulder.
v. Pain, weakness and limitation of movement of the right shoulder with decrease
range of movement.
vi. Loss of strength
vii. Cramps to the right and left shoulder
viii. Significant loss of use of the right hand.
ix. Difficulty to grip or hold anything in the right hand.
x. Tenderness to the right hand.
xi. Difficulties to concentrate due to regular use of pain killers.
xii. Difficulty holding neck in a flexed position without pain and restriction.
xiii. Difficulty to drive for long periods of time.
xiv. Difficulty to lift heavy objects without severe pain and restriction.
xv. Difficulty to carry anything of a heavy weight.
xvi. Difficulty to comb and blow dry hair as a result of shoulder pain.
xvii. Difficulty to iron clothes as a result of ongoing pain and restriction to the shoulders
xviii. Difficulty to carry out housework unless it is on an intermittent basis.
xix. Difficulty carrying out normal household duties such as cleaning, washing,
scrubbing, vacuuming, lifting, hanging out washing, ironing and shopping without
pain and restriction.
xx. Difficulty to carry out gardening chores and maintenance on the house such as,
mowing, raking, sweeping, washing the car
xxi. Difficulty to undertake work as a truck driver
xxii. Headaches.
xxiii. Fearfulness and anxiety.
xxiv. Sleeplessness.
xxv. Difficulty carryout out manual work.
xxvi. Anxiety attacks in motor vehicles.
xxvii. Tension, aggression and frustration
xxviii. Requirements to take pain killers.
xxix. Depressive state.
xxx. Chronic fatigue.
xxxi. Insomnia.
xxxii. Post-Traumatic Stress Disorder.
xxxiii. Feelings of loss of confidence and frustration.
xxxiv. Difficulty driving a manual car.
xxxv. Loss of agility and mobility
xxxvi. Constant tiredness.
xxxvii. Severe affectation on social life.
xxxviii. Aching of the shoulders in cold weather.
xxxix. Necessity to take continuing medication such as Tramadol
xl. Diminished drive and motivation
xli. Nightmares.
xlii. Difficulty sleeping as a result of not being able to find a comfortable position due
to pain.
xliii. Broken sleep as a result of ongoing pain.
xliv. Pain and inconvenience involved in undergoing medical treatments
xlv. Inability to participate in normal social, sporting and recreational activities[100]
[100] AT49, folios 159-160.
On 10 February 2023, Dr Bodel produced a further report for Mr Ziade’s lawyer.[101] The doctor reported Mr Ziade has “never had any prior problems with the right shoulder” and:
He has in my view suffered a rotator cuff injury to the region of the right shoulder. Professor McGill is of the view that this gentlemen’s clinical injury is pre-existing and I disagree with that, based on the medical evidence available at the moment.[102]
[101] AT52.
[102] Ibid, folio 179.
Also on 10 February 2023, Dr Bodel produced a report for Mr Ziade’s lawyer addressing issues of permanent impairment in which he reported Mr Ziade’s “clinical condition has not stabilised” and “he is keen to proceed with the surgery offered by Professor Haber”.[103]
[103] AT53, folio 183.
On 2 March 2023, Australia Post informed Mr Ziade his compensation claim was “administratively closed” as he had not provided a fully compliant medical certificate with the claim.[104]
[104] AT55, folio 185.
On 27 March 2023, Dr Terry Kwong, a consultant physician and rheumatologist, produced a medico-legal report for Mr Ziade’s lawyer.[105] Among other things, Dr Kwong addressed issues of causation and impairment, and reported:
[Mr Ziade] sustained a frank injury to his right shoulder at work on 6 August 2019.
He also has left should problem due to the nature and conditions of his work. After his right shoulder injury, he used his left arm to compensate after his right shoulder injury. His work involved repetitive use of both arms to open and shut the roller door up to 180 times a day and also repetitive lifting.
In my opinion, his employment was a substantial contributing factor.
…
In my opinion, his right shoulder impairment is due to the injury sustained on 8 August 2019 and his left shoulder impairment is due to the fact that he used his left hand to compensate for his right shoulder injury.[106]
[105] AT56.
[106] Ibid, folio 194 and 195.
On or about 23 June 2023, Mr Ziade was involved in a quad bike accident in Bali which caused an injury to his cervical spine.
On 13 September 2023, Australia Post issued a determination refusing liability to pay compensation under s 14 of the SRC Act in respect of Mr Ziade’s “nature and conditions claim”.[107]
[107] AT60.
On 21 September 2023, Associate Professor McGill produced a medico-legal report for Australia Post.[108] The doctor reported:
[108] AT61.
The shoulder examinations today were symmetrical, comparing right with left, with a full range of movement and power.
…
The diagnosis has not changed significantly since my reports of 20 August 2020 and 16 September 2020, although the cause has changed since my first report. The diagnosis remains a right rotator cuff tear, partial thickness tear of long head biceps tendon, chronic Hill-Sachs bone lesion, and posttraumatic/degenerative labral changes.
When I saw Mr Ziade on 20 August 2020, I based my conclusions about causality on the history he provided of having never experienced shoulder symptoms prior to the work fall in August 2019. Other doctors have provided opinions based on the same, incorrect, history.
In light of the documentation, summarised above, which demonstrated that the history provided by Mr Ziade was incorrect, and that he had experienced substantial, troublesome right shoulder symptoms prior to the fall on 6 August 2019, sufficiently severe that surgical opinion had been requested on 1 June 2019, I think the injury sustained by Mr Ziade on 6 August 2019 was a temporary aggravation of preexisting, substantial, post-traumatic and degenerative change in the right shoulder, including a chronic rotator cuff tear, and that the effect of the injury had ceased to have any significant effect on his level of symptoms and function by three months after the injury.
He does not continue to suffer the effects of the work-related injury sustained on 6 August 2019. It follows that there is no impairment, restriction of work capacity, or treatment requirement related to the injury on 6 August 2019.
He had substantial bilateral shoulder symptoms prior to the injury on 6 August 2019. MRI of the left shoulder in August 2018 showed changes not dissimilar to those subsequently demonstrated in the right shoulder although without evidence of previous dislocation. The shoulder problems present prior to August 2019 were causing fluctuating and substantial symptoms such that despite being considered “not candidate for repair” in November 2018 (not clear whether this was the view of his general practitioner or was based on the view of a shoulder surgeon), referral for consideration of surgery, based on bilateral shoulder pain, worse on the right, was provided in June 2019. I expect those changes would have interfered, at least intermittently, with his ability to perform his normal work duties with StarTrack.
Regarding the suggestion that he suffered injury or condition of both shoulders as a result of the nature and conditions of his employment from 1 July 2016, I think that is not correct. The opening and closing of the door on the truck could have caused temporary shoulder symptoms but would not have influenced the degenerative/post-traumatic changes evident on MRI of both shoulders.
The nature of any previous specific injury that he may have sustained to the shoulders, remains unclear. It has been demonstrated that Mr Ziade is not a reliable historian. In July 2010, xrays of both knees demonstrated an old fractured tibial plateau. In July 2011, when he presented with pain at the right lateral epicondyle, xray of the elbow showed a probable old fracture of the olecranon process. The probable fracture was not at the site of, and was not relevant to, his pain at that time but was another indication of prior trauma.
The current state of his shoulders would have been the same had he not performed work duties for StarTrack from 1 July 2016.
In regard to whether there was evidence of non-organic factors, on both of the occasions that I saw him, he presented in a plausible fashion and I specifically noted in my initial report that he provided a reasonable history. The documentation which subsequently became available demonstrated that the history was false in a major way. As a result, I have no confidence in the reliability of the history he provided. His cooperation during the examination was reasonable in August 2020 and good on this occasion.[109]
[109] AT61, folio 228.
On 3 October 2023, Mr Ziade’s lawyer requested reconsideration of the 13 September 2023 determination.[110]
[110] AT62.
On 31 October 2023, Australia Post issued a reconsideration decision, affirming the 13 September 2023 determination to deny liability under s 14 of the SRC Act for Mr Ziade’s ‘nature and conditions’ claim.[111]
[111] AT63.
On 8 November 2023, Mr Ziade lodged an application for review of this decision by the Tribunal.[112]
[112] AT2.
In the course of the proceedings, Australia Post obtained medico-legal reports from Dr David Duckworth, a shoulder and elbow surgeon.[113] On 28 November 2023, Dr Duckworth diagnosed “Right rotator cuff tear” and reported:
… Mr Ziade did have a pre-existing condition affecting his shoulder and did have a pre-existing cuff tear from the history although he did not bring this up when I questioned him during the consultation. From reading the notes I note Mr Ziade had a pre-existing shoulder condition which has been exacerbated by his most recent injury in 2019.[114]
[113] Exhibit 8.
[114] Ibid, pages 2 and 3.
The doctor also diagnosed “Bilateral rotator cuff tears” which he believed “stems from working for Australia Post back to as early as 2015”.[115]
[115] Ibid, report of Dr Duckworth, 28 November 2023, paragraphs [4.1] and [4.2].
In respect of both diagnoses, he answered Yes to the questions ‘Have the effects of a pre-existing or non-work-related condition overtake[n] the effects of this injury or condition?[116]
[116] Ibid.
On 21 May 2024, Dr Duckworth produced a further report for Australia Post in which he reiterated his opinion Mr Ziade had pre-existing problems affecting his left and right shoulders and noted Mr Ziade was treated with cortisone injections in November 2018 and May 2019 for rotator cuff tears. Dr Duckworth agreed with Associate Professor McGill the injury on 6 August 2019 temporarily aggravated the pre-existing condition of Mr Ziade’s right shoulder and the “aggravation would have ceased over a 3-4 month period”.[117] With regard to Mr Ziade’s bilateral shoulder injury claim, Dr Duckworth agreed with Associate Professor McGill that Mr Ziade had “ongoing problems” and a pre-existing problem affecting his right shoulder. The doctor explained:
His work has continually aggravated an underlying degenerative condition in both shoulders.
Whether his shoulder would have been aggravated or would have deteriorated as quickly as it has since 2016 is something that is difficult for me to comment upon. A pre-existing rotator cuff which occurred 10 years ago does become aggravated and exacerbated by conditions at work, particularly activities requiring a lot of lifting and overhead use of the arm. I believe Mr Ziade’s subsequent injuries since 2014 are all related to the original injury and simply exacerbated the underlying degenerative condition affecting his shoulders.[118]
[117] Exhibit 7, report of Dr Duckworth, 21 May 2024, paragraph [2.2].
[118] Ibid, paragraph [2.3].
Associate Professor Haber, Dr Bodel, Dr Kwong, Associate Professor McGill and Dr Duckworth gave oral evidence during the hearing of this review.
ISSUES
In application 2019/7512, it is necessary to decide:
(a)whether Mr Ziade sustained a right shoulder ‘injury’ on 6 August 2019 for the purposes of s 5A of the SRC Act, in the form of:
(i)a ‘disease’ under s 5B, being an ‘ailment’ to which his Star Track employment contributed to a significant degree; and if so
A.whether the exclusion in s 7(7) of the SRC Act applies; and if not
B.the date of the injury under s 7(4) of the SRC Act; or
(ii)an ‘injury (other than a disease)’ or an ‘aggravation’ of an injury (other than a disease) arising out of or in the course of his employment; and if so
(b)whether the ‘injury’ resulted in impairment or incapacity for work, such that Star Track is liable under s 14 of the SRC Act to pay Mr Ziade compensation; and if so
(c)from the date of the ‘injury’ to the present, Star Track’s liability to pay Mr Ziade compensation in respect of the ‘injury’ under s 16 of the SRC Act for medical treatment expenses obtained in relation to the ‘injury’ and under s 19 of the SRC Act in respect of incapacity for work resulting from the ‘injury’.
In application 2023/8320 it is necessary to decide:
(d)whether the nature and conditions of Mr Ziade’s protected Star Track employment from 1 July 2016 caused an ‘injury’ to Mr Ziade’s shoulders for the purposes of s 5A of the SRC Act in the form of:
(iii)a ‘disease’ under s 5B, being an ‘ailment’ to which his Star Track employment contributed to a significant degree; and if so
A.whether the exclusion in s 7(7) of the SRC Act applies; and if not
B.the date of the injury under s 7(4) of the SRC Act; or
(iv)an ‘injury (other than a disease)’ or an ‘aggravation’ of an injury (other than a disease) arising out of or in the course of his employment; and if so
(e)whether the ‘injury’ resulted in impairment or incapacity for work, such that Star Track is liable under s 14 of the SRC Act to pay Mr Ziade compensation.
The parties agree, if Star Track is found liable for an ‘injury’ under s 14 of the SRC Act, Mr Ziade’s specific entitlements to compensation under s 16 and s 19 of the SRC Act should be remitted to Australia Post for determination.
I am satisfied this is appropriate. Even though Mr Ziade’s taxation records[119] and his alleged out of pocket medical expenses[120] are in evidence, there is not sufficient relevant probative material before the Tribunal to enable factual findings to be made for the purposes of determining specific claims under s 16 (including whether the particular treatment was reasonable for Mr Ziade to obtain in relation to the ‘injury’) and determining any specific entitlements under s 19 (including in respect of the amount per week Mr Ziade is able to earn in ‘suitable employment’).
[119] AT65.
[120] Exhibit 5.
The hearing proceeded on this basis.
At the outset of the hearing, counsel for Mr Ziade, Mr Daniel Steiner, raised an issue in relation to the Tribunal’s jurisdiction in application 2019/7512. I gave an oral ruling so as not to delay the hearing and undertook to provide more detailed written reasons when deciding the substantive issues in the proceedings. Those more expansive reasons follow.
Jurisdiction
Mr Steiner asserts the Tribunal lacks jurisdiction in application 2019/7512 on the ground the primary determination is invalid. The charge of invalidity is raised on temporal grounds relating to s 14 of the SRC Act. Mr Steiner argues a determination under s 14 involves no more than the 5 elements identified by the Full Federal Court in Lees v Comcare (Lees),[121] and it is impermissible to determine liability for a closed period of time. As this is what Australia Post expressly did, so the argument goes, the determination is invalid. It is clear, Mr Steiner submits, Australia Post incorrectly conflated decision-making and the separate statutory considerations under s 14, s 16 and s 19 and, in so doing, applied a temporal limit to liability under s 14, contrary to authority.
[121] [1999] FCA 753 at [35].
Australia Post disagrees. In Australia Post’s submission, there is no bar to determination of Star Track’s liability to pay compensation to Mr Ziade under s 14, s 16 and s 19 in a single decision. Australia Post argues liability under s 14 is contingent on the continuing existence of an ‘injury’ and when the effects of the ‘injury’ resolve or the ‘injury’ no longer exists, liability to pay compensation under s 14 also comes to an end.

I should immediately observe, application 2019/7512 was lodged under s 25 of the AAT Act by Mr Ziade’s lawyer. Raising the issue of jurisdiction and invalidity is a more recent development.
The Tribunal’s jurisdiction is conferred by s 64(1) of the SRC Act. The jurisdiction conferred is for review of a reviewable decision, which is defined in s 60 to include a reconsideration decision made under s 62 of the SRC Act.
When considering the scope or ambit of the jurisdiction conferred under s 64 of the SRC Act, once enlivened by a valid application under s 25 of the AAT Act, it is necessary to determine the matters which were before the reconsideration decision-maker and capable of being decided in the exercise of the powers and delegations conferred.
The ambit of the Tribunal’s jurisdiction is not confined to the matters expressly decided in the reconsideration decision. It extends to all matters which were before the reconsideration decision-maker and capable of being decided in exercise of powers under s 62 of the SRC Act. This, in turn, hinges on the scope of matters which were before the primary decision maker which were capable of being decided in a determination as defined in s 60 of that Act.
Under the scheme the SRC Act sets out, a claim may be taken to have been capable of being decided by a primary decision-maker if it was placed before the decision-maker by way of notice under s 53 or a claim made under s 54 of the SRC Act and the decision-maker had authority and power to decide the claim. Where a matter is capable of being decided by the decision-maker in exercise of the powers and delegations conferred on that person, but the matter is not addressed in any way by the decision maker in an adverse decision, the decision maker may be taken to have decided the matter adversely, in a manner which does not disturb the status quo. Adopting the principle discussed in Fuad and Telstra Corp Ltd[122] (which was confirmed in Irwin v Military Rehabilitation and Compensation Commission[123] and Comcare v Lofts)[124], the adverse determination is taken to be an adverse determination on all matters before the decision-maker.
[122] [2004] AATA 1182 at [4]- [5].
[123] [2009] FCAFC 33.
[124] [2013] FCA 1197 at [43]-[44].
In application 2019/7512, applying the legal propositions Madgwick J set out in Abrahams v Comcare,[125] I am satisfied the claim includes the condition diagnosed by Dr Sibandra in the medical certificate accompanying the claim form, namely “Right shoulder and arm contusion”.[126] The medical certificate sets out Mr Ziade’s incapacity for work and Dr Sibandra’s “Treatment, investigation and referrals”. Clearly enough, the certificate was issued by the doctor following a medical consultation with Mr Ziade. The claim as represented by the claim form and the accompanying medical certificate is one in respect of an alleged injury resulting in incapacity for work and requiring medical treatment.
[125] [2006] FCA 1829 at [18].
[126] T4.
Considered in this way, it can readily be understood the primary decision-maker was to determine if Mr Ziade had an ‘injury’ under s 5A of the SRC Act resulting in incapacity for work or impairment for which Star Track is liable under s 14 and, if so, his entitlements to compensation under s 16 in respect of medical treatment expenses and under s 19 in respect of incapacity for work.
Mr Ziade’s assertion the primary decision-maker was not authorised to determine these matters in a single determination proceeds on a misconception about the operation of the legislative scheme. A ‘determination’ is by definition a “determination, decision or requirement” under a section nominated in the definition in s 60(1) of the SRC Act. Notice of a determination must be given to the claimant and the notice must include the matters set out in s 61(1)(a), (b) and (c). There is no limit to the number of determinations which can be included in a notice so long as the notice requirements in respect of each determination are satisfied.
Mr Ziade’s assertion that the determination under s 14 of the SRC Act is invalid because the liability Australia Post determined was for a closed period of time and, therefore, the Tribunal lacks jurisdiction cannot be accepted for two reasons.
Firstly, the Tribunal’s jurisdiction is enlivened by Mr Ziade’s application under s 64 of the SRC Act and s 25(1) of the AAT Act for review of a reviewable decision in the form of a reconsideration decision under s 62 of the SRC Act. The reviewable decision was made following reconsideration of determinations under s 14, s 16 and s 19 of the SRC Act. Even if the determination or the reconsideration decision is affected by legal error, these are decisions in fact which are capable of reconsideration and subsequent review by the Tribunal in the course of which any defect, including a legal defect, may be corrected.[127]
[127] COLLECTOR OF CUSTOMS (NEW SOUTH WALES) V BRIAN LAWLOR AUTOMOTIVE PTY LTD [1979] FCA 21 AT [14].
Secondly, I am not satisfied Australia Post’s determination is invalid. The language used in the notice of the determination must be carefully considered in order to understand the determination actually made. It is quite clear the decision-maker relied on the 24 September 2019 report by Dr Ness in which the doctor considered “the soft tissue injury at work on 06 August 2019 has ceased”. On that basis the decision-maker “accepted liability for a closed period” under s 14(1) of the SRC Act and proceeded to determine Mr Ziade’s entitlement to compensation under s 16 and s 19 accordingly. The reference to ‘liability for a closed period’ is no more than a reference to the period in which the decision-maker was satisfied Mr Ziade’s ‘injury’ persisted and resulted in impairment or incapacity for work at that time.
This is a factual finding in respect of Mr Ziade’s ‘injury’ and Star Track’s then present liability to pay compensation. A finding of this kind is not an impermissible ‘determination’. The primary decision-maker did not determine Star Track’s liability to pay compensation for Mr Ziade’s ‘injury’ ceased under s 14 ‘on and from’ a particular date, contrary to well established authority. Had this been done, it is probable the determination would be a nullity. Quite evidently, the decision maker made a positive determination under s 14 and the reference to a ‘closed period’ is an inapt reference to the period in which the decision maker determined Star Track was liable to pay compensation to Mr Ziade under s 16 and s 19 (or any related provision in Division 3 of Part II, noting at that time Mr Ziade was no longer an employee of Star Track).
That said, it is necessary to address Mr Ziade’s submission Australia Post impermissibly determined to cease liability for his shoulder injury under s 14 of the SRC Act.
Liability under s 14 is subject to the two qualifications discussed by the Full Court in Lees:
27. … Section 14 creates a liability in Comcare in respect of injuries suffered by employees which result in death, incapacity for work or impairment. However, the liability in Comcare created by s 14 is qualified in two ways. First, such liability is a liability "subject to" Part II of the Act. That is, it is a liability limited in its extent by other provisions of Part II of the Act... Secondly, the liability is a liability to pay compensation "in accordance with" the Act. That is, it is a liability to pay the compensation for which the statute provides, as required by the Act: see, for example, ss 17(3), (4), (5), 19, 20, 24 and 25.’
…
34. ... A determination under s 14 cannot amount to more than a determination that Comcare "is liable to pay compensation in accordance with this Act" in respect of a particular injury. The amount of compensation which Comcare will be liable to pay, the person or persons to whom the compensation will be payable and the time or times at which Comcare’s liability will give rise to a present obligation to make payments are, as the above examination of the structure of the Act reveals, all matters to be determined under other provisions of the Act.
As can be seen, the liability under s 14 is liability to pay compensation in respect of the ‘injury’, [128] as defined, in accordance with the SRC Act. It is limited by other provisions in Part II of the SRC Act: the liability to pay compensation is enlivened by a past or present obligation to pay an amount under a particular head of compensation. Within this framework, there is no authority to determine that liability under s 14 has ceased ‘on and from’ any particular date.[129] That said, the retrospective consideration of the factual underpinnings of a positive s 14 determination might be justified in the particular circumstances of any case.[130]
[128] Canute v Comcare [2006] HCA 47 (Canute) at [10].
[129] Australian Postal Corporation v Oudyn [2003] FCA 318, per Cooper J at [32]-[35]; Rosillo v Telstra Corporation Limited [2003] FCA 1628 at [20]; Duong v Australian Postal Corporation [2005] FCA 991 at [44].
[130] Riddle v Telstra Corporation Limited [2006] FCA 58 at [40]-[41].
By definition, an ‘injury’ includes two sub-sets: a ‘disease’, being an ailment to which the employment contributed to the specified degree; and an ‘injury (other than a disease)’, being an injury (in the ordinary sense), which occurred in the course of or arising out of the person’s employment. Liability under s 14 is conditioned by the existence of an ‘injury’ but as will appear, it is not differently conditioned by the particular kind of ‘injury’.
Where a positive determination under s 14 remains in operation in the sense Conti J referred to in Telstra Corporation Ltd v Hannaford (Hannaford)[131] at [57] (it has not been the subject of any inconsistent outcome in the context of a subsequent review by the AAT), the liability to pay compensation is conditioned by the facts on which specific liability or entitlement to compensation hinges under the particular heads of compensation set out in Part II of the SRC Act. These include medical treatment expenses under s 16, incapacity for work under s 19, and permanent impairment under s 24 and 25 for example.
[131] [2006] FCAFC 87.
When determining such specific liabilities or entitlements, a decision maker is required to make factual findings relevant to the causal threshold or nexus between the particular compensation claimed, whether in respect of an asserted past or present liability to pay, and the ‘injury’ for which liability was determined under s 14. This includes whether the person has the ‘injury’ at the time any particular liability to pay compensation is determined, reconsidered or reviewed by the Tribunal.[132] Importantly, the liability to pay compensation is in respect of the ‘injury’.[133]
[132] Hannaford, per Heerey J at [9]-[10].
[133] Canute, at [10].
It was to matters of this kind the Full Court in Prain v Comcare (Prain)[134] was taken when considering the construction of ‘disease’ in s 5B. I should immediately observe the Court’s express approval of the construction adopted by the Tribunal in that case at [87] must, respectfully, be approached with some caution for the reasons Derrington J (with whom Collier and Rangiah JJ agreed) discussed in Woodhouse v Comcare (Woodhouse).[135] Derrington J explained in [84]:
It must be kept in mind that s 14 operates to impose liability on Comcare where and for as long as certain conditions exist. However, s 14 only provides the core or central touchstone of liability and other sections regulate the extent and manner in which such compensation is provided. An important element of s 14 is the condition that compensation is payable only where it results in death, incapacity, or impairment. Whilst death is permanent, the other two sequelae may be temporary with the result that s 14 will only render Comcare liable where the causative requirement continues to have effect.
[134] [2017] FCAFC 143.
[135] [2021] FCAFC 95 at [80]-[81].
I note His Honour’s reference to the ‘causative requirement’ adopts the language Finn J used in Comcare v Laidlaw[136] when referring to the essential causal nexus between an ‘injury’ and the results or effects of the ‘injury’ under s 14 and s 19, including impairment, incapacity for work or death. Adopting the language used by Finn J, the ‘causative requirement’ in respect of the effect of an ‘injury’ is not to be confused or conflated with the ‘contributory requirement’ in respect of the cause of the injury, applying the relevant thresholds in s 5B of the SRC Act. The distinction drawn in these cases was drawn in reference to a ‘disease’, being an ‘ailment’ to which the employment contributed to the relevant degree (a material degree or, in this case, a significant degree).
[136] [1999] FCA 40 at [22].
In a case involving an ‘injury (other than a disease)’ or an aggravation of this kind, the ‘contributory requirement’ does not arise. The required causal or temporal connection with the employment is set out in s 5A(1)(b) and (c): the ‘injury (other than a disease)’ must arise out of or in the course of the employment. Extending Finn J’s terminology, this might be described as the ‘connection requirement’. Where the ‘connection requirement’ is met, and an ‘injury (other than a disease)’ is found to exist, liability to pay compensation in respect of the effects of such an ‘injury’ is preconditioned satisfaction of the ‘causative requirement’.
I note in passing, in Military Rehabilitation and Compensation Commission v May (May),[137] the plurality concluded the word “injury” in the phrase ‘injury (other than a disease)’ is used in its primary sense, involving a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state.[138] In this context, provision is made for a ‘mental injury’, being an injury in the primary sense involving a sudden and ascertainable psychiatric or psychological change or disturbance in the normal psychological state.[139]
[137] [2016] HCA 19.
[138] Ibid, per French CJ, Kiefel, Nettle and Gordon JJ at [45].
[139] Ibid, at [52]; Bailey v Broadsword Marine Contractors Pty Ltd [2017] FCAFC 219 at [104].
Thus it can be understood, proceeding in the manner discussed by the plurality in May[140], once the threshold of ‘injury’ is surpassed, and the ‘contributory requirement’ or the ‘connection requirement’ is satisfied, the liability to pay compensation is subject to the ‘causative requirement’ applying thresholds set out in s 14 and each particular head of compensation that is applicable in relation to or as a result of an ‘injury'.
[140] Ibid, at [49]-[56].
Mr Ziade cavils with the proposition the persistence of liability under s 14 is conditioned by the continuing existence of the ‘injury’. He asserts that liability under s 14 is not conditioned by a continuing causal nexus with the employment to maintain the ‘injury’. In Woodhouse, Derrington J addressed the point in the following way:
84. … If the cause of incapacity ceases to be an “injury” as defined, the constituent elements for Comcare’s liability also ceases. It follows that it is the continuing existence of the necessary state of affairs which defines the duration of Comcare’s liability. However, some additional difficulty arises in the attempt to define the precise nature of that state of affairs. That is especially so in relation to the contribution requirement.
85. Logically, the causes of a disease or ailment tend to cease once the condition is suffered and the employee ceases employment or the causative factors are remedied. However, having been caused by the contribution of the employee’s employment, the condition itself often continues and compensation is payable to the extent to which it results in death, incapacity or impairment. It does not follow that, in order for Comcare to remain liable, the employee’s employment needs to remain a constant and continuing contributor to the ongoing injury. That would rarely, if ever, be the case. However, what is required is that the contribution requirement remain in place in the sense that the disease or ailment continues to have the characteristic of having been contributed to in a material degree by the relevant employment. To say that the employment factors continue to contribute in a material way to the employee’s condition is an inarticulate way to express this. It is preferable to say that the causal nexus between the employee’s employment and suffering of the disease continues unbroken. In this way, the operative effect of the expression “was contributed to” in the definition is not spent once it has connected the employee’s employment with the contraction or aggravation of the ailment. In order for a disease to remain one in respect of which Comcare will be liable, it must retain the continuing characteristic that it was contributed to in the necessary degree by the employment. If at any later point in time the ailment suffered by an employee ceases to have that character, it will also cease to be a “disease”, and will therefore cease to be an “injury” in respect of which compensation is payable pursuant to s 14 of the SRC Act. For the duration of each of the periods in respect of which the question of compensation is being determined, it must be possible to say that the contribution requirement was satisfied in respect of the ailment.
…
89. Section 14 only imposes liability on Comcare where, amongst other things, the ailment in respect of which the claim is made remains an “injury”. In the case of an ailment said to constitute an “injury” on the basis that it is a “disease”, the ailment must be one which continues to owe its existence to the contribution to, in a material degree, the employee’s employment. (For the avoidance of doubt, this does not require causation in the sense of a “but for” test. In those unusual cases, such as the present, where the disease persists but only by reason of factors unconnected to the contribution of the employment, Comcare’s liability will have ceased.
90. Conversely, the applicant’s preferred construction should be rejected. Comcare has no liability under s 14 in relation to an ailment, the continued existence of which can no longer be said to have the necessary causal connection to the employee’s employment. The mere fact that the ailment suffered may once have had the necessary connection is irrelevant. Even where the ailment continues unabated, if it ceases to have the characteristic of being one which was relevantly contributed to by the employee’s employment, Comcare’s liability ceases.
[Citations removed.]
Consequently, the construction adopted in Woodhouse (and Prain) introduces a temporal element to the existence of liability under s 14 which derives from the duration of the ‘injury’ under claim.
This expands the long-established approach derived from Lees and it provides fertile grounds for disputation for three reasons.
Firstly, where the ailment which gave rise to a ‘disease’ resolves or is ‘crowded out’ or ‘overtaken’ by subsequent contributory factors unrelated to the employment, there is no longer an ‘injury’ as, at that point in time, the ‘contributory requirement’ is no longer met. The question then arising is whether the ‘causative requirement’ can nevertheless be met, whether the previous ‘injury’ results in the person’s incapacity for work or impairment. The purported cessation of liability in respect of an ‘injury’ does not foreclose liability for the effects of the ‘injury’ which may persist thereafter. Consistent with Lees,[141] Woodhouse and Prain do not stand for or require any different conclusion.
[141] [1999] FCA 753 at [27] and [34]-[35].
Secondly, the question will then arise whether, at that point in time, the alternative basis of liability, in respect of an ‘injury (other than a disease)’ or an aggravation of that kind exists. If so, the injured employee would be able to recover on the alternative basis of liability.
Thirdly, while the kind of ‘injury’ under consideration in Woodhouse and the issues of construction which arose related to a ‘disease’, at the level of principle, the temporal element in s 14 and the essential nexus with the particular employment on which it hinges would also apply in respect of any ‘injury’. Simply put, by extension of the principle in Woodhouse, the liability to pay compensation under s 14 hinges on satisfaction of the connection requirement and the causative requirement. Where an injury in the ordinary sense resolves, there is a question whether the connection requirement is met at that point in time and whether liability under s 14 for any persisting compensable effects of the ‘injury’ continue so long as the causative requirement is met.

In order to answer this question, the particular facts raised by the evidence must be considered. Generally, the subjective experience of feeling unwell may not be sufficient to establish the existence of an ‘ailment’.[145] It is well established that an ‘ailment’ involves disturbance of the normal functions of body or mind to the extent that the person’s condition is outside the boundaries of normal mental functioning and behaviour. [146] The nature of such disturbance, including the onset, clinical significance and diagnosis of any physical or mental condition, is a matter for evidence.
[145] Wuth v Comcare [2022] FCAFC 42, per Wheelahan J, with whom Griffiths and Snaden JJ agreed, at [110]; May at [57].
[146] Comcare vMooi[1996] FCA 1587 (Mooi) at [12].
The words ‘ailment’ and ‘aggravation’ are given the following meaning in s 4(1) of the SRC Act:
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
aggravation includes acceleration or recurrence.
Considering the evidence of Associate Professor Haber, Dr Ness, Dr Bodel, Dr Kwong, Associate Professor McGill and Dr Duckworth, as well as the incident report and the contemporaneous records and certificates of Dr Sibanda and Dr Pek, it is probable Mr Ziade sustained a soft tissue injury to his right shoulder in the 6 August 2019 incident. In all likelihood, his right arm was by his side and not outstretched when he fell onto his right shoulder. The mechanism of injury was a forceful impact to the right shoulder area when he fell. This is consistent with the contusion type injury Dr Sibanda recorded.
I am satisfied Mr Ziade had pre-existing right shoulder pathology which was symptomatic prior to the incident on 6 August 2019. The extent of this pre-existing pathology is indicated by a previous ultrasound scan of his right shoulder in 2017 and the ultrasound guided steroid injections to his right shoulder in 2018 and 2019, as well as his referral by Dr Chowdhury to Dr Jones in June 2019.
On the question of the precise nature of the injury in Mr Ziade’s right shoulder, I am satisfied the impact on Mr Ziade’s right shoulder caused an exacerbation of symptoms attributable to the pre-existing pathological changes in his shoulder, including the rotator cuff tear. On balance, the medical evidence does not support a finding the fall caused or caused further physiological changes to the rotator cuff tear, the Hill-Sachs lesion, the rupture of the long head biceps tendon, or the anterior labral tear demonstrated in the 20 August 2024 MRI scan. On this point, Dr Duckworth’s evidence is preferred as he examined the MRI films and he was briefed with extensive documents traversing Mr Ziade’s known medical history. As I have said, in important regards, Dr Duckworth’s evidence is supported by the evidence given by Associate Professor McGill and Dr Ness. Associate Professor Haber, Dr Bodel and Dr Kwong did not have access to Mr Ziade’s full medical history and, for this reason, their evidence carries less weight.
While the impact injury might have caused additional tendon fibres to tear, Dr Duckworth found no evidence of this in the MRI films taken on 20 August 2019. On his evidence, I am satisfied the nature of the injury probably involved a contusion with some inflammation and effusion resulting in symptoms of pain in Mr Ziade’s right shoulder joint.
On one view, it might be possible to argue the soft tissue injury is an ‘ailment’ to which Mr Ziade’s employment contributed to a significant degree. The experience of pain consequent to inflammation and effusion as a result of the right shoulder impact might well traverse the threshold of normal function discussed in Mooi’s case and satisfy the definition of an ‘ailment’. The degree to which Mr Ziade’s employment contributed hinges on the duties Mr Ziade was undertaking, training he was given in relation to such duties, the safety of the equipment he was using in the performance of his duties. Mr Ziade asserts he had been driving the 8 tonne Pantech truck for only 8 days, without training in the use of the hydraulic tail gate. To some degree, the occurrence of the accident in which Mr Ziade fell onto the hydraulic tail gate of the truck Mr Ziade was using might have been contributed to by his employment, but that is not clear. The occurrence of the incident in the course of his employment on that day does not establish any degree of causal contribution by the employment for the purposes of s 5A(1)(a0 and s 5B of the SRC Act.
The better view is that the contusion, inflammation and effusion which resulted from the impact of Mr Ziade falling onto his right shoulder, the soft tissue injury, is an ‘injury (other than a disease)’ which occurred in the course of Mr Ziade’s employment on 6 August 2019. I so find. The contusion, inflammation and effusion caused by the fall are sudden and identifiable pathological changes in the soft tissues of Mr Ziade’s right shoulder.
Noting the evidence of Dr Sibandra, Dr Pek, Dr Ness and Associate Professor Haber soon after the injury, I am satisfied the injury resulted in ‘impairment’ and ‘incapacity for work’. Considering the meaning given to the word ‘impairment’ in s 4(1) of the SRC Act, on the evidence of Dr Ness, Associate Professor McGill and Dr Duckworth, it is probable Mr Ziade lost some functional use of his right shoulder due to pain caused by the impact injury he sustained in the fall on 6 August 2019. Dr Sibandra certified Mr Ziade was fit to return to work with restrictions following the injury. Having regard to the meaning of the phrase ‘incapacity for work’ in s 4(9) of the SRC Act, it is probable Mr Ziade’s pain symptomatology secondary to inflammation and effusion and related loss of function reduced his capacity to undertake work at the same level, performing the same duties, as before the injury.
On the evidence of Dr Duckworth, Associate Professor McGill and Dr Ness, the ‘injury’ would likely have resolved within 3 months, by 6 November 2019, at least to the extent that it would be unlikely to result in impairment or incapacity for work at or about that time or thereafter. I accept their evidence and give it greater weight than the evidence of Associate Professor Haber, Dr Bodel and Dr Kwong on this point. To varying degrees Associate Professor Haber, Dr Bodel and Dr Kwong considered the fall created patho-physiological changes to the rotator cuff and other tissues in Mr Ziade’s right shoulder which would not have resolved within 3 months and would likely require surgical treatment. For reasons I have explained, the balance of the evidence does not support such findings.
The medical certificates in evidence establish that Mr Ziade continued to experience partial incapacity for work after 6 November 2019. Having considered all the relevant evidence, I am not able to be satisfied the incapacity for work he experienced after 6 November 2019 to the present was ‘as a result of’ the ‘injury’ he sustained on 6 August 2019. On the evidence of Dr Ness, Associate Professor McGill and Dr Duckworth, the better conclusion is that the incapacity resulted from the pre-existing physiological changes in the tissues of his right shoulder for which he sought treatment in June 2019. This is not a case in which a previously asymptomatic condition was rendered symptomatic by a work injury. Mr Ziade’s right shoulder was symptomatic prior to the incident on 6 August 2019. I accept the soft tissue impact injury he sustained to his right shoulder in that incident caused temporary and partial incapacity for work for a period of up to 3 months. I do not accept the soft tissue injury resulted in incapacity for work which persisted for more than 3 months and up to the present for the simple reason I am not persuaded the injury caused the patho-physiological changes which have resulted in Mr Ziade’s ongoing incapacity. It is for this reason I do not accept the evidence on this point given by Associate Professor Haber, Dr Bodel and Dr Kwong that the 6 August 2019 injury continues to be an operative cause of incapacity.
It is also quite clear Mr Ziade’s right shoulder requires surgical treatment. All the expert doctors agree with Associate Professor Haber’s evidence on this point, noting Dr Bodel’s caution about the likelihood of success following extensive delay. It is significant Mr Ziade was referred to Dr Jones, a specialist shoulder surgeon in June 2019. I am not persuaded the soft tissue injury on 6 August 2019 required, added to or accelerated the need for such treatment. I am satisfied the fall on 6 August 2019 caused a soft tissue injury but it did not cause the right shoulder pathology which requires surgical treatment.
In conclusion of these matters, I am satisfied Mr Ziade sustained a soft tissue impact ‘injury’ to his right shoulder on 6 August 2019 which resulted in ‘impairment’ and ‘incapacity for work’. From this it follows, Star Track is liable to pay Mr Ziade compensation for this injury under s 14 of the SRC Act from 6 August 2019.
It is probable the ‘injury’ resolved within 3 months, by 6 November 2019 and any impairment or incapacity for work Mr Ziade experienced thereafter to the present is not a result of the 6 August 2019 ‘injury’. On the evidence of Dr Duckworth, Associate Professor McGill and Dr Ness, I am satisfied the ‘injury’ did not result in incapacity for work and it did not require medical treatment from 7 November 2019 to the present and I am satisfied the medical treatment Mr Ziade obtained in respect of his right shoulder during this period is not medical treatment he obtained in relation to the 6 August 2019 ‘injury’ for the purposes of s 16 of the SRC Act.
From this it follows, in respect of the 6 August 2019 ‘injury’, Mr Ziade is not entitled to compensation for medical treatment expenses under s 16 of the SRC Act and incapacity for work under Division 3 of Part II in the SRC Act from 6 November 2019 to the present.
Injury – application 2023/8230
Once again, having regard to the parties’ submissions and the relevant evidence in respect of Mr Ziade’s ‘nature and conditions’ claim, the first question under s 5A(1) of the SRC Act is whether Mr Ziade has a ‘disease’, being an ‘ailment’ to which his employment contributed to a significant degree.
The evidence clearly establishes that Mr Ziade suffers an ‘ailment’ signified by pathology, including rotator cuff tears, in each of his shoulders. The pathology in his left shoulder is demonstrated in the 10 August 2018 MRI scan and the pathology in his right shoulder is demonstrated in the MRI scan on 20 August 2019. The earlier x-rays and ultrasound scans taken of both shoulders in 2017 are noted. Associate Professor McGill described the pathology in both shoulders as “degenerative/post-traumatic changes”[147]. I accept that characterisation of the ‘ailment’ is likely correct, although Mr Ziade denied any shoulder symptoms or injuries prior to commencing employment with Star Track.
[147] AT61, folio 228.
Mr Ziade’s evidence on this point is not corroborated. In consideration of the controversy about the history of Mr Ziade’s shoulder symptoms and his credit in these proceedings, one would expect Mr Ziade, who is legally represented, might have called evidence from family members or past colleagues, friends or acquaintances with relevant knowledge, but no such evidence has been adduced in support. The medical and MRI evidence does not sit easily or well with his denial of prior shoulder injuries or symptoms.
At issue is whether Mr Ziade’s duties and activities in the protected period of his Star Track employment contributed to the ‘ailment’ or ‘aggravation’ of the ailment to a significant degree.
Mr Ziade previously claimed compensation in respect of an alleged injury when lifting a television in the course of his duties on 1 August 2018.[148] This claim was denied.[149] I note that Mr Ziade withdrew an application for review[150] of the reviewable decision which affirmed the denial of his claim[151]. The present ‘nature and conditions’ claim[152] asserts Mr Ziade first noticed symptoms of the alleged injury to his “Shoulders”, reported the injury to his Manager and first sought medical treatment for the injury in “2018”.[153] Star Track alleges Mr Ziade is precluded from agitating the alleged 2018 left shoulder injury again in these proceedings. To the extent that Mr Ziade is alleging a different injury, albeit affecting the same body part, and a different causal nexus with the employment than previously claimed, Star Track’s submission cannot be accepted.
[148] AT15; AT16 refers.
[149] AT17.
[150] AT41.
[151] AT24.
[152] AT44.
[153] Ibid, folios 140 and 141.
There is clear evidence Mr Ziade sought medical treatment in respect of his shoulders well before 2018. He obtained treatment for a right shoulder injury on 15 November 2015[154] and 15 December 2015.[155] On 19 November 2016, ultrasound scans of Mr Ziade’s right and left shoulders were undertaken. The left shoulder scan showed “Full thickness tear to the anterior and mid bundles of the supraspinatus tendon” and subacromial bursa thickening and impingement consistent with bursitis.[156] The right shoulder scan showed “Minimal increase in the fluid in the biceps synovial sheath without definite biceps tendinopathy”, “a mid partial tear of the supraspinatus tendon and a full thickness posterior tear of the supraspinatus tendon” and subacromial bursa thickening consistent with bursitis.[157] On 16 May 2017, Mr Ziade sought treatment in respect of “shoulder pain right more than left”.[158] Dr Ali noted “USG of shoulder shows Bursitis both shoulder”, which he described as Bilateral Subacromial Bursitis, and “Supraspinatous tear”.[159] It appears Dr Ali recommended further investigation of the right shoulder as well as “Steroid inj for right bursitis”.[160]
[154] AT6, folio 19.
[155] Ibid, folio 18.
[156] AT8, folio 22.
[157] Ibid.
[158] AT7, folios 20-21.
[159] Ibid, folio 21
[160] Ibid.
Mr Ziade asserts all these materials referring to shoulder symptoms and treatments are relevant to his ‘nature and conditions’ claim as they suggest the duties in his employment contributed to injure both of his shoulders. There are some difficulties with this.
The express terms of the compensation claim refer to an injury first noticed and first treated in 2018. On the face of the claim, it would appear this does not embrace shoulder symptoms in the previous period from December 2015. Notably, in the claim, Mr Ziade denied experiencing any previous similar symptoms.[161] In oral evidence, Mr Ziade explained he understood the question about previous experience of symptoms related to symptoms prior to his employment by Star Track. Nevertheless, there is a question whether the claim can be construed so broadly it encompasses shoulder symptoms and their causes from December 2015.
[161] AT44, folio 141.
A similar issue arises in respect of shoulder symptoms in 2019 and 2020, prior to the termination of Mr Ziade’s employment by Star Track. Is the claim Mr Ziade signed on 25 July 2022 to be construed in a manner which embraces shoulder symptoms and the causes of such symptoms after the injury which is alleged to have been first noticed and treated in 2018?
Being mindful of the principles discussed in Abrahams v Comcare[162] and adopting a generous interpretation of the claim, I will proceed on the understanding the claim is in respect of “permemant damage” to Mr Ziade’s shoulders over the “time working in the run truck”[163] during the period of Mr Ziade’s Star Track employment. Approached in these terms and considering Mr Ziade’s submissions, the claim does not relate to a specific incident or injury but rather it relates to the alleged causal contribution of Mr Ziade’s duties as a truck and delivery driver in Star Track employment to the pathology in each of his shoulders. The period of the relevant employment is confined to the period in which Star Track is a licensee under the SRC Act, namely from 1 July 2016.[164]
[162] [2006] FCA 1829 at [18].
[163] AT44, folio 141.
[164] Exhibit 6.
Mr Ziade’s duties as a truck and delivery driver included entering and driving trucks, opening and closing truck roller doors and side curtains, as well as lifting and carrying items of varying weights, and manoeuvring manual hydraulic pallet jacks. Many of these duties were performed repetitively during each shift. Mr Ziade’s assertion he would open and closed truck roller door 90 times each day is not corroborated. While the quantum of repetitive tasks is not entirely clear, it can be accepted Mr Ziade made multiple deliveries and engaged in repetitive duties of the kinds described each day.
For Mr Ziade’s claim to succeed, it is not sufficient to establish that his shoulder conditions became worse, rather it must established by relevant probative evidence or reasonable inference that his employment duties or related employment circumstances made his shoulder conditions worse.[165] Furthermore, it is not sufficient that Mr Ziade experienced pain or discomfort at work, it must be positively established any increase in pain he experienced was caused by his work.[166]
[165] Comcare v Reardon [2015] FCA 1166 (Reardon) at [34] citing Ogden Industries Pty Ltd v Lucas [1967] HCA 30 and Commonwealth v Beattie [1981] FCA 88 (Beattie).
[166] Reardon at [31] citing Tippett v Australian Postal Corporation [1996] FCA 335.
Associate Professor McGill gave evidence of research which shows working overhead can increase the incidence of rotator cuff tears. This broadly aligns with evidence given by Dr Duckworth.
Dr Duckworth gave evidence that Mr Ziade’s duties opening and closing the truck roller door may have aggravated his pre-existing bilateral shoulder condition, but he was unable to say such activities had increased the size of the rotator cuff tears in each shoulder. In his opinion, Mr Ziade’s work activities, particularly overhead use of his arms and repetitive lifting, are likely to have resulted in acute on chronic symptoms of pain or discomfort, including bursitis, but such symptoms do not signify further damage to either shoulder and they would likely be momentary or temporary. As I comprehend the doctor’s evidence, and his report that Mr Ziade’s employment significantly contributed to his bilateral shoulder condition[167], he considers such momentary or temporary symptoms of these kinds to be aggravations or exacerbations of Mr Ziade’s bilateral shoulder condition to which his employment contributed to a significant degree. I note that Dr Duckworth’s references to ‘aggravation’ and ‘exacerbation’ have a medical rather than a legal character when describing the occurrence of symptoms on activity. Dr Duckworth reported:
A pre-existing rotator cuff which occurred 10 years ago does become aggravated and exacerbated by conditions at work, particularly activities requiring a lot of lifting and overhead use of the arm. I believe Mr Ziade’s subsequent injuries since 2014 are all related to the original injury and simply exacerbated the underlying degenerative condition affecting his shoulders.[168]
[167] Exhibit 8,, report of Dr Duckworth, 28 November 2023, page 3.
[168] Exhibit 7, report of Dr Duckworth, 21 May 2024, page 2.
Dr Duckworth’s evidence on this point is substantially consistent with the evidence given by Associate Professor McGill. The Associate Professor explained that Mr Ziade’s duties, including operating the truck roller door using a rope, had the potential to cause pain but they were unlikely to result in any structural change to the pre-existing “degenerative/post-traumatic changes evident on MRI of both shoulders”.[169] Accepting this is correct, a temporary increase in symptoms when performing work duties does not amount to an ‘aggravation’ of the underlying pathology in Mr Ziade’s shoulders or the ‘ailment’.
[169] AT61, folio 228.
To the extent Dr Bodel and Dr Kwong considered the contribution of Mr Ziade’s repetitive duties to his bilateral shoulder condition, each doctor focussed on the incident on 6 August 2019. Dr Bodel gave evidence that, in his opinion, it is probable the change in Mr Ziade’s right shoulder occurred rapidly: he was functionally normal prior to the fall on 6 August 2019, whereas after the fall he was functionally impaired. It is Dr Kwong’s opinion Mr Ziade had pain in his right shoulder as a result of repetitive work duties, but his main problem affecting the right shoulder was the fall on 6 August 2019. Dr Kwong’s evidence is that Mr Ziade compensated for problems with his right shoulder by using his left shoulder, and it was overuse of his left shoulder which led to the onset of left shoulder pathology and related symptoms. Dr Kwong explained Mr Ziade’s symptoms of pain prior to the fall on 6 August 2019 were likely minor as these did not limit his range of shoulder movement and he continued to work full time up to the acute injury he sustained in the 6 August 2019 fall.

I prefer and give greater weight to the evidence of Associate Professor McGill and Dr Duckworth on this point. The opinions of Dr Duckworth and Associate Professor McGill are logically consistent and cogently reasoned, and each was fully briefed with relevant materials. Dr Bodel and Dr Kwong tended to rely on Mr Ziade’s incomplete account of shoulder symptoms, without being briefed with all relevant documents. I note Dr Kwong’s evidence of Mr Ziade’s experience of pain prior to 6 August 2019 lends support to the conclusions of Dr Duckworth and Associate Professor McGill that Mr Ziade’s experience of shoulder pain and discomfort was not likely to have resulted in further changes to his pre-existing bilateral shoulder pathology.
On the evidence of Associate Professor McGill and Dr Duckworth, while it is possible, even likely, Mr Ziade’s repetitive duties in Star Track employment from 1 July 2016 affected, aggravated or exacerbated bilateral shoulder symptoms temporarily, it is unlikely such activities would have caused or significantly contributed to pathological changes in each shoulder. The nature of the pathology in Mr Ziade’s shoulders demonstrated on MRI of each shoulder is consistent with older pre-existing post-traumatic and degenerative changes. It is probable Mr Ziade experienced temporary shoulder discomfort or pain, even bursitis or tendonitis, from time to time, as a result of movement and irritation of the already damaged tissues and structures in his shoulders when undertaking repetitive duties, opening and closing truck roller doors and side curtains, lifting items and pushing pallet jacks. This is consistent with the evidence of Mr Ziade seeking treatment from time to time for temporary shoulder symptoms from 2015. In all likelihood, such symptoms of shoulder pain or discomfort would be momentary or might last for a day or two. It does not follow, and it is not presently established, that such repetitive duties caused or significantly contributed to pathological changes or “permemant damage” in either of Mr Ziade’s shoulders as he claims.
Considering the matters set out in s 5B(2) of the SRC Act, and the particular duties Mr Ziade is likely to have undertaken in his Star Track employment from 1 July 2016, on balance, it is unlikely the nature and conditions of Mr Ziade’s employment, including the repetitive duties he undertook as a truck and delivery driver, contributed to cause, or worsen the pre-existing pathology in each of his shoulders. This is so even though Mr Ziade likely experienced temporary aggravations of pain or discomfort in his shoulders from time to time in the context of his Star Track employment. I am satisfied the symptoms he likely experienced are related to pre-existing post-traumatic and degenerative pathology in each shoulder which is not employment-caused.
To the extent the evidence suggests Mr Ziade experienced bursitis or tendonitis from time to time, the evidence of Dr Duckworth and Associate Professor McGill establishes that these are inflammatory conditions occasioned by movement of already damaged parts of Mr Ziade’s shoulders.
I am not persuaded these conditions are within the scope of Mr Ziade’s compensation claim in respect of “permemant damage”. Even if they are, on the evidence of Dr Duckworth and Associate Professor McGill, such inflammation and related symptoms would likely be temporary. To the extent such inflammation or symptoms are related to activities undertaken in Mr Ziade’s previous Star Track employment, it is probable the relationship is contextual rather than causal. The employment was the context or setting in which the temporary movement-related aggravation or exacerbation of symptoms, or the irritation of the pre-existing pathology in Mr Ziade’s shoulders, occurred. It is possible each increase in symptoms Mr Ziade experienced performing delivery duties in his previous Star Track employment might traverse the thresholds discussed in Reardon and Beattie (and I make no such finding), or they might have been associated with further tearing of tendon fibres, but this is not presently established as a probability. I am satisfied these possibilities are not presently made out and the contribution requirement is not met in the context of Mr Ziade’s present ‘nature and conditions’ claim in respect of ‘permemant damage” to his shoulders.
I am satisfied Mr Ziade’s Star Track employment from 1 July 2016 did not contribute to his bilateral shoulder ‘ailment’ or to an ‘aggravation’ of the ‘ailment’ to a significant degree.
From this it follows, the matters raised by Mr Ziade’s ‘nature and conditions’ claim do not meet the threshold for a ‘disease’ or an ‘aggravation of a disease’ for the purposes of s 5A(1)(a) and s 5B(1) of the SRC Act.
Regarding s 5A(1(b) and (c) and the question whether Mr Ziade’s bilateral shoulder condition amounts to an ‘injury (other than a disease)’ or an ‘aggravation of an injury (other than a disease)’, I am satisfied the answer is No.
The weight of the medical evidence does not support a positive finding on either of these questions. The opinions given by Dr Duckworth and Associate Professor McGill are compelling and they are not outweighed by any other evidence. On their evidence, I am satisfied Mr Ziade’s bilateral shoulder pathology as demonstrated by MRI scans of each shoulder did not arise out of or in the course of his Star Track employment from 1 July 2016. The evidence does not establish Mr Ziade’s bilateral shoulder pathology was aggravated by his Star Track employment to the extent that the pathological changes in each shoulder were made worse or the progress of such pathological changes was accelerated by the employment. Absent evidence of an identifiable physiological change arising out of or in the course of his previous Star Track employment, I am satisfied Mr Ziade did not sustain an ‘injury (other than a disease)’ or an aggravation of such an injury which is temporally or causally related to his Star Track employment.
I note in closing submissions, Mr Steiner informed me the ‘nature and conditions’ claim was not pressed in respect of Mr Ziade’s right shoulder. If this is a concession, it is one which is not binding and, for this reason, I have proceeded to address the issues arising from the claim as made.
The proposition Mr Ziade sustained some form of progressive injury to his left shoulder is not made out. It is possible Mr Ziade’s Star Track employment caused tendinopathy involving the rupture or tearing of tendon fibres measured by the change evident in the imaging taken in 2017, 2018 and 2019, as he asserts, but this is no more than a possibility. On the expert evidence of Dr Duckworth and Associate Professor McGill it is probable the pathological changes in Mr Ziade’s shoulders pre-existed his Star Track employment, and the changes progressed naturally over time.
Importantly, Mr Ziade’s claim relies on his unsupported account of having no injury or symptoms in his shoulders prior to his Star Track employment from 2014. The objective MRI evidence and the weight of the expert evidence points to a different conclusion. As I have said, Mr Ziade’s unsupported evidence is unreliable. I note he has consistently failed to fully disclose previous injuries to Star Track (and Australia Post) and to doctors who have examined him, including in a medicolegal context for the purposes of compensation claims. His explanations for these failings are singularly unpersuasive.
CONCLUSION
Mr Ziade sustained a soft tissue ‘injury (other than a disease)’ to his right shoulder on 6 August 2019 which resulted in impairment and incapacity for work. Under s 14 of the SRC Act, Star Track is liable to pay Mr Ziade compensation in respect of this ‘injury’.
The ‘injury’ is likely to have resolved by 6 November 2019 at which time it did not result in impairment or incapacity for work.
From 7 November 2019 to the present, the ‘injury’ did not result in incapacity for work and medical treatment Mr Ziade obtained in this period was not in relation to the ‘injury’. Consequently, from 6 November 2019 to the present, Mr Ziade is not entitled to payment of compensation for incapacity for work under applicable provisions in Division 3, Part II of the SRC Act, and he is not entitled to compensation for medical treatment expenses under s 16 of the SRC Act.
Consequently, the decision under review in application 2019/7512 must be varied to the extent that Star Track is liable to pay Mr Ziade compensation in respect of the 6 August 2019 ‘injury’ under s 14, s 16 and Division 3, Part II of the SRC Act until 6 November 2019.
Mr Ziade’s ‘nature and conditions’ claim is not made out. Mr Ziade did not suffer an ‘injury’ for which Star Track is liable as a result of the nature and conditions of his Star Track employment from 1 July 2016.
DECISION
The decision under review in application 2019/7512 is varied to the extent that Star Track is liable to pay Mr Ziade compensation in respect of the 6 August 2019 ‘injury’ under s 14, s 16 and Division 3, Part II of the SRC Act until 6 November 2019.
The parties have not been heard in respect of orders for costs under s 67(8) of the SRC Act. Unless contrary submissions are made within 14 days, the Tribunal will order Star Track to pay Mr Ziade’s reasonable costs of this application as agreed or taxed.
The decision under review in application 2023/8320 is affirmed.

I certify that the preceding 219 (two -hundred and nineteen) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member

...........…..... [SGD]................................................
Associate
Dated: 16 July 2024

Date of hearing: 28, 29 & 30 May 2024

Counsel for the Applicant: Mr D Steiner

Solicitors for the Applicant: Gerard Malouf & Partners

Solicitor-advocate for the Respondent: Mr M Hawker

Solicitors for the Respondent: Sparke Helmore

Date of hearing:	28, 29 & 30 May 2024
Counsel for the Applicant:	Mr D Steiner
Solicitors for the Applicant:	Gerard Malouf & Partners
Solicitor-advocate for the Respondent:	Mr M Hawker
Solicitors for the Respondent:	Sparke Helmore