Australia: Self-insured corporation liable to pay compensation for aggravation of previously accepted injury

Higgerson and Prosegur Australia Pty Ltd (Compensation) [2023] AATA 115

Key Points

• The Tribunal was asked to consider liability for an aggravation of a pre-existing and previously accepted knee injury.
• The Tribunal was satisfied that the applicant had suffered an injury in the course of his employment and found in favour of the applicant.

Background

The applicant was employed with Brambles Security Services Ltd as an armed security guard in 1988 and worked continuously in that role until 2019.

His employment transitioned to Chubb Security Services when it purchased the Security Armed Guard Division of Brambles in June 2000, and then to Prosegur Australia Pty Ltd when it acquired Chubb on 16 December 2013.

Under the terms of Prosegur's licence, it is not authorised to accept liability for injuries occurring prior to the commencement of its licence on 1 July 2007.

On 1 April 2002, the applicant reported falling down the rear steps of an armoured vehicle while carrying two heavy coin boxes (the 2002 injury). Liability was accepted for this injury.

Discomfort in the applicant's knees increased steadily, and Dr David Gill (Orthopaedic Specialist) performed arthroscopies in 2008, and again in 2012. By July 2011, the applicant had developed osteoarthritis of the left knee.

In July 2019, by which time the applicant fell within Prosegur's self-insurance licence, Dr Gill identified right knee arthritis and a possible medial meniscus tear in the left knee. The applicant queried whether his right knee arthritis was related to the original 2002 left knee injury. Dr Gill considered there was unlikely to be a connection between one knee injury and the other.

On 16 October 2019, the applicant slipped while exiting an armoured vehicle, resulting in immediate pain to his left knee. This incident gave rise to two claims for compensation under the SRC Act:

• On 5 February 2020, the applicant submitted a claim for workers' compensation in relation to hyperextension of the left knee sustained on 16 October 2019. Liability was denied and the applicant sought further review in the Administrative Appeals Tribunal.
• On 20 April 2021, the applicant submitted a second claim for workers' compensation for a "personal physical injury" sustained on 16 October 2019. He noted in his claim form that he attributed his condition to the nature and conditions of his employment. Liability was denied on the basis that the left knee condition was a continuation of the 2002 injury, as well as the progression of a constitutional degenerative process. The applicant sought further review at the Tribunal.

The Law

Section 14 of the SRC Act provides that Comcare or a licensee is liable to pay compensation in respect of an injury suffered by an employee.

An injury is defined under section 5A of the SRC Act as an injury arising out of, or in the course of, an employee's employment.

A disease is defined under section 5B of the SRC Act as an ailment, or an aggravation of an ailment, which has been contributed to, to a significant degree, by the employee's employment.

Under section 4 of the SRC Act, an ailment means any physical or mental ailment, disorder, defect or morbid condition.

In the decision in Military Rehabilitation and Compensation Commission v May [2016] HCA 19, the High Court rejected the conclusion that subjectively experienced symptoms, without an accompanying physiological change, could amount to an 'ailment' for the purposes of the SRC Act. Notwithstanding this, in the Full Federal Court decision of Wuth v Comcare [2022] FCAFC 42, Wheelahan J found at [104] that it was reasonably clear from May that the requirement that there be a physiological change only applies to an 'injury (other than a disease)' and not an 'ailment'.

Conclusion

In light of medical evidence presented, the Tribunal was not satisfied that the applicant's employment with Prosegur from around 2012 was a significant contributor to the development of his left knee osteoarthritis.

Consequently, to the extent that osteoarthritis of the left knee was the relevant 'ailment', it was not a 'disease' within subsection 5B(1) of the SRC Act, and did not give rise to an entitlement to workers' compensation on this basis.

The Tribunal then turned to the alternative basis for liability, namely whether the applicant had a physical injury (or an aggravation) arising out of, or in the course of, his employment. The Tribunal was not satisfied that the medical evidence supported a finding that the applicant suffered a physical injury on 16 October 2019.

The Tribunal then went on to state that identifying the presence of an injury and determining an aggravation of a previously accepted injury, are different exercises. The Tribunal proceeded on the basis that the question of whether the experience of subjective pain experienced by a worker is sufficient in a particular case to constitute an aggravation of a pre-existing injury was a question of fact.

The Tribunal accepted that the applicant suffered from arthritis in various parts of his body which was painful, exhausting and debilitating however, until October 2019, it had not prevented him from carrying out his duties. The Tribunal also accepted that the medical evidence showed the applicant suffered several workplace accidents as a result of the arduous nature of his work, and stated that it was common ground that the applicant was injured in 2002, and developed consequential arthritis in the left knee. Accordingly, the Tribunal stated that under the relevant statutory provision, it did not matter that the original injury occurred while he was employed by Chubb. The critical issue was whether the original injury was aggravated in October 2019 and if so, whether that aggravation arose out of or occurred in the course of his employment with Prosegur.

Prosegur contended that no such finding could be made in the absence of clear evidence of a further physiological change occurring on 16 October 2019. The Tribunal did not accept this position and stated that this placed too high a burden on a worker under the compensation scheme contained within the SRC Act. Accordingly, the Tribunal found that on 16 October 2019, while in the course of his employment with Prosegur, the applicant slipped and fell while exiting an armoured vehicle, and in doing so, aggravated a pre-existing injury.

Accordingly, the Tribunal set aside each of the decisions under review.

Lessons Learnt

The processes of identifying the presence of an injury (in the primary sense) and determining aggravation of a previously accepted injury, are different exercises. The Tribunal in this case has arguably taken a slightly different approach to the ones expressed by the High and Full Federal Courts in May and Wuth. Prosegur has appealed the decision.

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