Dinca v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 36

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Dinca v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 036 PARTIES: Dinca, Mariana (Appellant) v Simon Blackwood (Workers' Compensation Regulator) (Respondent) CASE NO: WC/2013/233 PROCEEDING: Appeal against the decision of Simon Blackwood (Workers' Compensation Regulator) DELIVERED ON: 19 February 2014 HEARING DATES: 28 January 2014 29 January 2014 MEMBER: Deputy President Kaufman ORDERS : 1. The Appeal is allowed 2. The decision of the Regulator is set aside 3. The claim is one for acceptance 4. The Employer to pay the Appellant's costs of and incidental to the appeal CATCHWORDS: WORKERS' COMPENSATION - APPEAL AGAINST DECISION - Whether an injury was suffered - Whether injury arose out of, or in the course of, employment - Whether the worker's employment was a significant contributing factor to the injury - Worker bears onus - Balance of probabilities - Medical evidence - Appellant discharged onus - Appeal allowed CASES: Workers' Compensation and Rehabilitation Act 2003, s 32, s 32(1), s 32(3)(b) Toll Holdings Ltd v Q-COMP (WC/2010/96) Suzanne Maree Karipa v Q-Comp (WC/2011/453) Pleming v Workers' Compensation Board of Queensland (1996) 152 QGIG 1181 Goodman Fielder and WorkCover Queensland (2004) 175 QGIG 871 -- 1 of 13 -- 2 APPEARANCES: Mr. J. Morris, Counsel instructed by Shine Lawyers for the Appellant. Mr. G. Clark, of Simon Blackwood (Workers' Compensation Regulator), the Respondent. Mr. S. Sapsford, Counsel instructed by McInnes Wilson for Woolworths Limited. [1] This is an appeal by Mariana Dinca (the Appellant) against a decision of the Review Unit, Q-COMP to confirm an earlier decision of the self-insurer of her employer, Woolworths Limited (Woolworths), to reject the Appellant's application for worker's compensation under the Workers' Compensation and Rehabilitation Act 2003 (the Act). Since the making of the claim for compensation, the Act has been amended with the result that Q-COMP has been abolished and replaced by the Workers' Compensation Regulator, Simon Blackwood, the Respondent (the Regulator). In these reasons, Q-COMP will also be called the Regulator. [2] On 16 January 2014, Deputy President O'Connor granted leave to Woolworths to be heard on the appeal. The Appeal [3] The Appellant was employed by Woolworths as a console operator at a petrol station in Southport. [4] On 14 December 2012, pursuant to the Act, the Appellant lodged an application for workers' compensation for a physical knee injury described as "knee pain" with Woolworth's self-insurer, WOW Care (the Insurer). [5] The Appellant alleges that, whilst employed by Woolworths, she suffered injuries to her right knee over a period of weeks prior to the date of the incident in question, 12 June 2012. 1 [6] The claim was referred for determination and management for the purposes of the Act to the Insurer. The Insurer decided: "Based on the above information, I am unable to substantiate that you have sustained a work-related injury within the terms of section 32(1) of the Act." and determined that the Appellant had not suffered an injury for the purposes of s 32 of the Act. [7] On or about 15 May 2013, the Appellant sought review of the Insurer's decision by the Regulator and on 21 June 2013 the Regulator reviewed the Insurer's decision and confirmed its decision to reject the claim. 1 The incident in question occurred at 3.00am in the morning of 12 June 2012. The Appellant's shift began on 11 June 2012, and the incident is referred to, at times, as occurring on 11 or 12 June 2012 throughout this decision. -- 2 of 13 -- 3 [8] On or about 12 July 2013, the Appellant filed a notice of appeal against the decision of the Regulator and the appeal was listed for hearing before the Commission on 28 and 29 January 2014. [9] This proceeding is by way of a hearing de novo and the Appellant has the onus of establishing on the balance of probabilities that she has suffered an injury within the meaning of s 32 of the Act. 2 [10] The issue for determination in this appeal is whether the Appellant sustained an "injury" within the meaning of s 32 of the Act. [11] Section 32 relevantly provides: "32 Meaning of injury (1) An injury is personal injury arising out of, or in the course of, employment if- (a) for an injury other than a psychiatric or psychological disorder- the employment is a significant contributing factor to the injury; or … (3) Injury includes the following- (a) a disease contracted in the course of employment, whether at or away from the place of employment, if the employment is a significant contributing factor to the disease; (b) an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation- (i) a personal injury other than psychiatric or psychological disorder; (ii) a disease; (iii) a medical condition other than a psychiatric or psychological disorder, if the condition becomes a personal injury or disease because of the aggravation; …" [12] The Appellant puts her case in two ways;  first, that she suffered a tear to the medial meniscus of her right knee whilst in the process of bending down to look at a shelf on 12 June 2012 whilst in the course of her employment with Woolworths; or alternatively  that a previously existing meniscal tear was aggravated whilst she was undertaking the abovementioned employment duties and that this constitutes an "injury" within the meaning of s 32. 2 Toll Holdings Ltd AND Q-Comp (WC/2010/96) - Decision <http://www.qirc.qld.gov.au>. -- 3 of 13 -- 4 Background [13] The Appellant, a Romanian who moved to Australia in 1989 and speaks good English, had worked for Woolworths for approximately five and a half years prior to making her application for compensation. [14] In the course of that employment the Appellant was primarily required to perform console duties in a petrol station and to restock the shelves of the business therein. [15] For some period of time prior to 12 June 2012 the Appellant had suffered from increasing pain in her right knee. There is contradictory evidence from the Appellant as to whether the onset of pain occurred in March or May of 2012. [16] On 7 June 2012, whilst walking down a few stairs at her domestic premises, the Appellant felt some instability and pain in her right knee. Although there is some issue as to whether she slipped at this time, it is not disputed that she did not fall. She leant on her husband for support and returned to her flat and applied ice to the knee. The symptoms disappeared within approximately 20 minutes and she went shopping for some three hours without experiencing any further difficulties with her right knee. [17] At approximately 1.00 am on 12 June 2012, the Appellant experienced pain in her right knee. This was after she had commenced her shift shortly before midnight. Her evidence was that at around 3.00 am she bent down to check stock on a bottom shelf and suffered severe, sharp pain in her right knee. She said that she was unable to move for some time and eventually hobbled to the till. [18] The Appellant saw a General Practitioner on 12 June 2012, following the end of the shift in question, and subsequently had an MRI. [19] On 28 June 2012 the Appellant underwent a right knee arthroscopy performed by Dr Michael Graze at the John Flynn Hospital. [20] The Appellant made application to "HCF" to claim for the expenses associated with the surgery and in so doing informed HCF that the cause of her injury was the event which occurred at her domestic premises on 7 June 2012. There was no mention to that organisation of any work related injury. [21] In August of 2012, the Appellant began to experience worsening pain and discomfort in her right knee and was referred back to Dr Graze. Until then she had had no pain in her right knee. Nature of the employment [22] Until 26 March 2012 the Appellant had worked on day shift. [23] She commenced working on night shift, or as she called it, the graveyard shift, on 26 March 2012. This shift ran from approximately midnight to 7.00 am. Her roster required her to work five night and four day shifts per fortnight. -- 4 of 13 -- 5 [24] The duties performed on night shift differed from those on day shift, in that far more lifting, bending and carrying of goods was required on night shift. It was during the course of that shift that most of the placing of product into the storeroom and the stacking of shelves and refrigerators in the retail shop associated with the petrol station took place. The Appellant, when she worked on night shift, was the only employee on the premises. The shop was locked and transactions, mainly payment for petrol, were conducted through a window. [25] On night shift the Appellant was also required to perform cleaning tasks, including cleaning the toilets. [26] I gather that the products sold at the premises were the usual range of products found at convenience stores. In order to take product to the storeroom, the Appellant was required to move cartons that had been delivered and placed in the centre of the shop to a storeroom located at the rear of the premises. The heaviest of the cartons contained eight two litre bottles of soft drink. Although the Appellant had the use of a trolley this appears to have been of limited utility. According to the Appellant, she had almost no time to rest during the course of the night shift. [27] I accept the evidence of the Appellant and Mr Paul Annette, another employee at the store who also worked night shift, that far more bending, lifting and twisting took place during the course of night shift than was the case with day shift when more time was required to serve customers. I am also satisfied that most of the "load nights" were worked by Mr Annette and not by the Appellant. Load nights are the night shifts after deliveries of, particularly, the eight bottle cartons have occurred. Injury [28] The Appellant's primary submission is that her injury occurred when she bent down to check a low shelf at approximately 3.00 am on 12 June 2012 on the shift that had commenced just before midnight of the previous day, 11 June 2012. [29] Her evidence was that after commencing work she began to suffer the onset of pain at around 1.00 am. At 3.00 am she bent down to check stock on a bottom shelf and experienced severe pain in her right knee. This was accompanied by an inability to move. She stated she was in shock, began to cry and, after a period, limped to the till and rested. [30] Her evidence was that when the manager, Mr Matt Ruyter, arrived at about 7:30 am she was crying and he asked her what was wrong and she told him what had happened and that she thought she had a serious problem. He told her to have her husband collect her and that is what occurred. Mr Ruyter, who was called by Woolworths, has almost no memory of this, but says that he would have noted the incident in accordance with Woolworths' policies had it occurred as suggested by the Appellant. [31] Following the end of her shift, the Appellant made an appointment with her GP. As her regular doctor was unavailable she saw Dr Bromberg on 12 June 2012. She said that she informed him of the incident. She had an MRI and returned to see her regular GP, Dr Alexander, on 15 June 2012. -- 5 of 13 -- 6 [32] The Appellant was eventually referred to an Orthopaedic surgeon, Dr Graze, who performed an arthroscopic partial medial meniscectomy on 28 June 2012. The surgery appeared to be successful and she was given a certificate enabling her to return to work on light duties from 23 July 2012. However, Woolworths would not allow her to return to work without a full clearance, which she obtained from Dr Alexander. She returned to full time day shift, but some time later the pain in her right knee recurred. [33] The Appellant said she did not make a workers' compensation application after the 12 June 2012 incident because she didn't want to get her employer involved. It had been her intention to return to work as quickly as possible after her surgery. It was only when she suffered continuing problems after her surgery and returned to work in about August 2012 that she obtained a Workers Compensation Certificate and made an application for compensation. [34] It is accepted by all the parties to this appeal, and I agree, that whether or not the Appellant might have sustained a work related injury in the period following her return to work after surgery does not fall for consideration as part of this appeal. [35] Dr Alexander's evidence did little more than confirm that the Appellant had tried to see her on 12 June 2012, and that due to the doctor's unavailability she had seen Dr Bromberg who had ordered an MRI. Dr Alexander informed the Appellant of the result of the MRI and referred her to an orthopaedic surgeon, which referral resulted in Dr Graze performing the arthroscopic surgery. [36] It appears that after the Appellant had had the surgery on 28 June 2012, she saw Dr Alexander on 25 July 2012 at which time she told the doctor that she had slipped but not fallen whilst going downstairs, prior to being diagnosed with the meniscal tear. It also appears that the Appellant had told Dr Alexander that her specialist suggested that the tear was related to "the fall" [Exhibit A9]. [37] Dr Graze was not called to give evidence, but his correspondence to Dr Alexander was tendered by consent. In his letter of 27 June 2012 he notes that the Appellant had a medial meniscal tear "although she recalls no injury to the knee specifically. She has had symptoms for the last 3 or so months. The knee has a sensation of giving out at times." There then follows correspondence detailing his review of the Appellant's progress from time to time. [38] Dr Peter Dodd, an orthopaedic surgeon, examined the Appellant at the behest of Woolworths on 29 January 2013. In relating her history he observed that her night shift "job is varied in that she is expected to do some bending and lifting such as when filling shelves etcetera." He noted that "her initial discomfort in her right knee began towards the end of May 2012. She noticed some discomfort in the parapetellar region on bending, lifting and squatting. This became particularly severe on 11 June 2012 when the pain at the end of her shift at 6.00 am was very severe and she could not weight bear. She had difficulty continuing with work." [Exhibit W3]. [39] The doctor went on to say that the Appellant "denied problems with her right knee" but had recently developed similar problems with her left knee. The Appellant, in her evidence-in-chief, denied having told the doctor that she was experiencing -- 6 of 13 -- 7 problems with her left knee, but said she might have told him that she feared that she would develop such problems because she was overcompensating with her left leg. [40] Dr Dodd opined that his diagnosis of the Appellant's current right knee injury is osteoarthritis of the median femoral condyle and the patellofemoral joint. He went on to state that he didn't think that the Appellant had had a particular work injury. Rather he thought that "… she has had a degenerative tear of the medial meniscus concurrent with degenerative changes in the medial femoral condyle and the patellofemoral joint." [Exhibit W3]. [41] The doctor did not think her current symptoms were the result of her returning to full time duties too early following surgery. Rather, he thought that her current symptoms were a natural progression of the degenerative changes that are present in the medial compartment as indicated by her recent MRI scan. He doubted that her current symptoms had any relationship to her employment. [42] Given that this appeal is not concerned with the Appellant's current state of health, the doctor's observations as to her current situation are of limited assistance, other than his opinion that the Appellant had not had a particular work injury. He did, however, expand on this issue during his oral testimony. [43] In his evidence-in-chief, when the doctor was informed of the 7 June 2012 stairs incident, he opined that that it was possible that the slip on the stairs had caused the meniscal tear, or that it had aggravated pre-existing degeneration. [44] Associate Professor David Morgan, an orthopaedic surgeon, examined the Appellant on 2 October 2013, and provided a report which was tendered without objection. In his opinion, the Appellant had suffered with some clinically unrecognised degenerative disease in the right knee, which condition was significantly worsened by the work practices required of her at the service station. He also considered the incident of 12 June 2012 to be of some importance. The Appellant had given Professor Morgan a similar outline of her work experience and the incidents of 7 and 12 June 2012 as she related to the Commission. [45] In examination-in-chief, the doctor thought it unlikely that the incident of 7 June 2012 gave rise to a meniscal tear. Professor Morgan disagreed with Dr Dodd's view that the tear was essentially degenerative. He supported this view by reference to the X-rays, which were essentially normal, showing only some minor degeneration of the joint. During cross-examination he observed that bending and squatting can be powerful stimulants to tear a cartilage. [46] I prefer the evidence of Professor Morgan to that of Dr. Dodd. Dr. Dodd's examination of the Appellant, and his report, appeared to be less comprehensive than that of Associate Professor Morgan. Dr Dodd's description of the 12 June 2012 incident in the "History" section of his report does not accord with that of the Appellant or the history narrated by Professor Morgan. Dr Dodd noted: "She noticed some discomfort in the parapetellar region on bending, lifting, and squatting- This got particularly severe on 11 June 2012 when the pain at the end of the shift at 6.00 am was very severe and she could not weight bear." Dr. Dodd did not note the onset of sharp pain at 3.00 am when the Appellant bent to look at the low shelf. -- 7 of 13 -- 8 [47] In the Professor's opinion the degenerative changes in the patellofemoral and medical compartments were more likely to have been of an age-related nature, although they may have been aggravated by her work practices. He felt that some significant part of the Appellant's current circumstance could be linked with the work practices required of her, and the 12 June 2012 incident. I note that he stated that he relied heavily on the Appellant's denial of previous problems in coming to this view. [48] In his evidence-in-chief, after having been apprised of the Appellant's version of what happened, the professor said that in his opinion it "is unlikely that the first incident, that's the incident that occurred on the 7th of June when she was on her way to the shopping excursion, it is [un]likely 3 that that incident gave rise to a meniscal tear. The second incident, that's the one that occurred early in the morning of the 11th when she was squatting and working and bending at the Woolworths service station, would have the capacity to give rise to a tear. And the onset of the symptoms of the discomfort would suggest that that is when the tear occurred. A third possibility is that the meniscus was previously abnormal, prior to both of those, but she was essentially asymptomatic, especially prior to May. On the balance of probabilities, it appears that the meniscal tear occurred during that incident on the 11th of June." [Transcript, 1-53, Lines 25-31]. [49] Counsel for Woolworths relies on the evidence of the Appellant's GP, Dr Alexander, particularly her evidence to the effect that the Appellant had not told her of the 12 June 2012 incident to support his contention that that incident did not feature in the aetiology of injury. I do not accept this submission. I accept the Appellant's explanation for not having mentioned it at the time. Nor do I place much weight on what the Appellant may or may not have thought was the reason for her pain. Consideration [50] The Appellant's case is that she suffered a tear of the meniscus of the right knee, which was an injury for the purposes of s 32(1) of the Act. Additionally, or in the alternative, the onset of the symptoms associated with the meniscal tear was an aggravation of a pre-existing degenerative condition which, by virtue of s 32(3) of the Act, becomes an "injury" within the meaning of s 32. [51] Woolworths contends that the meniscal damage was not an injury for the purposes of s 32(1) of the Act. It was Woolworths' case that the "insidious onset of symptomatology" was not a consequence of work but a result of a degenerative tear of the Appellant's right medial meniscus as a result of degeneration and the possible contribution of the event of 7 June 2012. It was not submitted by Woolworths that the Appellant had not incurred a meniscal tear. [52] It was Woolworth's submission that the work undertaken by the Appellant could not reliably be said to have been a significant contributing factor to the aggravation of the existing constitutional underlying disease as opposed to an exacerbation of symptoms. 3 The transcript records the word "likely", but, having listened to the CourtFM recording, I am satisfied that this is an error. -- 8 of 13 -- 9 [53] Counsel for Woolworths submitted that the "evidence does not support the Appellant's contention that work was a significant contributing factor to the contraction of injury." [54] Much was made by Woolworths of the six month delay between the time of the alleged squatting incident and the Appellant making her application for workers' compensation. Similarly, Woolworths placed a good deal of emphasis on the apparent onset of, at least mild, symptoms from March, or on one account, May 2012. In his submissions, Mr Sapsford emphasized the stair incident of 7 June 2012 and almost ignored the incident of 12 June 2012. He pointed to the Appellant initially having informed HCF only of the stair slip and not the squatting incident. These matters were put in support of Woolworth's submission that the Appellant was an unreliable witness. [55] I do not accept this submission. In particular, I am satisfied, on the balance of probabilities, that the incident on 12 June 2012 occurred in much the manner related by the Appellant. She struck me as a largely truthful witness. I prefer her version of what occurred later that morning to that of Mr Ruyter, who seemed to me to be somewhat reconstructing the event. [56] I am also satisfied that the Appellant slipped on the stairs leading to the garage at her premises on 7 June 2012, that her knee felt as though it was giving way, that she did not fall, that she leant on her husband for support, that she experienced some pain, that she applied ice to her right knee and that after she rested for a relatively short time her symptoms subsided and she went shopping for several hours without experiencing further symptoms. [57] It is not disputed that the Appellant was a "worker" for the purposes of the Act. [58] It is also not in contention that the Appellant sustained a personal injury, a meniscal tear. [59] The Appellant puts her case in the alternative. First, that she sustained the tear at work on 12 June 2012 when she bent and squatted to check the contents of a low shelf. Secondly, that that the tear is an aggravation of a personal injury. She thus puts her case under sections 32 (1) and 32 (3)(b) of the Act. [60] To succeed she must establish, on the balance of probabilities, that the injury, or the aggravation, arose out of, or in the course of, her employment with Woolworths and that the employment was a significant contributing factor to the injury. [61] Mr Sapsford properly conceded that the Appellant suffered a personal injury in the early hours of 12 June 2012 when she experienced pain whilst bending and squatting. [Transcript: 2-27, Lines 13 - 17.] Thus, it is not in contention that the injury occurred in the course of the employment. [62] The issue I must decide is whether or not work was a significant contributing factor to the injury. -- 9 of 13 -- 10 [63] Both counsel took me to the recent decision of Deputy President O'Connor in Suzanne Maree Karipa v Q-Comp 4 ('Karipa') in support of their respective cases. In Karipa his Honour summarized some of the relevant jurisprudence. It is convenient to refer to some passages from his Honour's judgment: " [34] It was the Respondent's submission that the work undertaken by the Appellant cannot reliably be said to be a significant contributing factor to the aggravation of the existing constitutional underlying disease as opposed to an exacerbation of symptoms. The Respondent drew a distinction between an 'exacerbation' of the underlying disease and an 'aggravation'. [35] Counsel for the Respondent submitted to the Commission that 'work cannot reliably be said to be 'a significant contributing factor' to the aggravation of the pre-existing, constitutional underlying disease, as opposed to an exacerbation of symptoms.' [36] In short, the Respondent was submitting that the Appellant did not suffer a compensable injury as she experienced an exacerbation of the underlying condition (as opposed to an aggravation), which resulted in a temporary increase in the symptoms associated with the carpal tunnel syndrome, and which later returned to the pre-exacerbated state. [37] In Ward v Q-COMP his Honour President Hall wrote: 'The statutory definition of 'injury' at s. 32 of the Workers' Compensation and Rehabilitation Act 2003, includes the aggravation of an injury 'which arises out of or in the course of the employment'. It has long been settled that the activation of pain is equated with aggravation of an underlying disease i.e. that it is sufficient that an asymptomatic underlying degenerative disease becomes painful, even if there is no change to the underlying pathology, see Pleming v Workers' Compensation Board of Queensland at 1182 per de Jersey P, and WorkCover Queensland v BHP (Qld) Workers Compensation Unit at 143 per Hall P. If indeed, Ms Ward's degenerative back and/or her degenerative right knee had become symptomatic, i.e. painful, whilst she was doing that which she was employed to do, I should have thought that the only sustainable conclusion was that she had suffered an injury in the course of her employment.' [38] It must be accepted by the Commission that employment significantly contributed to the occurrence of the injury. It is insufficient to establish that the employment was the setting in which the aggravation occurred or the background to its occurrence. [39] The Commission must be further satisfied that it is more probable than not that there is a significant causal relationship between the work injury and the Appellant's post-accident condition. 4 Suzanne Maree Karipa v Q-Comp (WC/2011/453) - Decision <http://www.qirc.qld.gov.au>. -- 10 of 13 -- 11 [40] In Fielder v Workcover Queensland his Honour President Hall wrote: 'The medical evidence is such that one must accept, as has been accepted in other cases, that the degenerative spinal disease had reached the point at which it might be exacerbated and rendered symptomatic by stretching to get something out of a pantry, bending over to tie shoe laces or turning over in bed. What happened to the worker in this case might well have happened to him at his home, on a council bus or at a religious service. However, once the Industrial Magistrate accepted that the incident of 3 April 2001 did in fact occur and accepted that there was proximity of time between the incident and the onset of the pain it was, in the absence of any evidence about a competing causal incident, inevitable that the Industrial Magistrate would conclude on the balance of probability that the worker's employment had been "a significant contributing factor to the aggravation". On the state of the evidence any other conclusion would be speculation.' [41] In Carman v Q-COMP his Honour President Hall wrote: 'It must be remembered that Pleming v Workers' Compensation Board of Queensland (1996) 152 QGIG 1181 is an often cited but ageing authority. The worker who was successful on the point of law about the content of "aggravation" was unsuccessful on the facts. Pleming v Workers' Compensation Board of Queensland, ibid, does not decide that a worker afflicted by a degenerative back suffers an injury if the back becomes painful at work. Neither does Pleming, op. cit., establish that a worker with a degenerative back suffers an "injury" if the work is a cause of the onset or intensification of pain. Pleming, op. cit., establishes that a worker with a degenerative back will suffer an injury where the back becomes painful or more painful and the employment is a significant cause of the onset or intensification of pain.' [42] I do not accept the submission that there is a distinction between an 'exacerbation' and an 'aggravation'. In Omanski v Q-COMP his Honour President Hall accepted that the definition of "aggravation" in sch. 6 to the Act is inclusive, and that "aggravate" can carry the meaning 'exacerbate'. In forming that view, his Honour referred to the decision in Commonwealth v Beattie and, in particular, to the reasoning of Evatt and Sheppard JJ who found that 'a synonym for 'exacerbate' is to aggravate'. [43] In JBS Australia Pty Ltd v Q-COMP, an aggravation, in the sense of an increase of symptoms associated with a degenerative condition which, after the cessation of the symptoms, returns to its pre-aggravation state, was held by his Honour President Hall to be a compensable injury. His Honour wrote: 'The view attributed to the Court by the Commission in Scott Newton AND Q-COMP and relied upon by JBS Australia Pty Ltd, is quite another matter. At paragraph [60] and [61] the Commission asserted: -- 11 of 13 -- 12 [60] There is another matter that also needs to be considered, that is, that there are two types of aggravation to a degenerative condition. In Heald v Q-COMP Hall P said: 'A degenerative condition may be aggravated in the sense that it may be made worse, i.e. after the aggravation the degenerative disorder is worse that it was before. But there can also be aggravation in the sense of an increase of symptoms associated with a degenerative condition which, after the cessation of the symptoms, returns to its pre- aggravation state.' [61] The second type of aggravation, where it arises in an employment context, is one that does not attract workers' compensation benefits.'. On the contrary, in Heald v Q-COMP, ibid, at 771, the Court accepted that aggravation in the second sense was compensable." [64] I have extracted these passages from Karipa 5 because they summarize much of the jurisprudence relevant to the issues that I must decide. Woolworths does not seek to distinguish between aggravation and exacerbation, but I have nevertheless included the passages of Deputy President Hall's judgment for completeness. [65] I have already indicated that I accept the evidence of Professor Morgan that it is more probable than not that the meniscal tear occurred during the 12 June 2012 incident. [66] This is not a case where a worker with a degenerative knee merely experiences pain whilst at work, or where work is merely a cause of the onset of pain. As Pleming v Workers' Compensation Board of Queensland 6 explains, in such cases, the worker does not suffer an "injury" within the meaning of s 32 of the Act. [67] I find that the Appellant suffered a personal injury, a meniscal tear to her right knee on 12 June 2012, whilst bending and squatting to reach a low shelf. That injury occurred in the course of her employment. [68] It now falls to be decided whether the employment was a significant contributing factor to the injury. Given that the tear occurred whilst she was performing the very activity that caused it, I find that the employment was a significant contributing factor to the injury. Fielder 7 seems to be apposite. [69] If I am wrong, and the Appellant had a pre-existing injury, a degenerative knee, I find that there was an aggravation of her underlying condition for the purposes of s 32(3) of the Act. As was the case in Karipa, the Appellant was asymptomatic when she commenced her employment with Woolworths. 5 Suzanne Maree Karipa v Q-Comp (WC/2011/453) - Decision <http://www.qirc.qld.gov.au>. 6 Pleming v Workers' Compensation Board of Queensland (1996) 152 QGIG 1181. 7 Goodman Fielder and WorkCover Queensland (2004) 175 QGIG 871. -- 12 of 13 -- 13 [70] I am satisfied that there was a causal connection between her work duties, in particular the bending, twisting and squatting necessary to perform her tasks to move stock to the storeroom and to restock shelves, and the onset of symptoms of knee damage. [71] In any event, unlike Karipa, in this case there was a discrete activity, the squatting and bending on 12 June that was the aggravating trigger. Even Dr Dodd accepted, during cross-examination, that the pre-existing condition was aggravated by the 12 June 2012 activity [Transcript 1-66, Lines 21-25; 1-67, Lines 30-35; 1-70, Lines 39-41]. [72] The Appellant has discharged the onus of establishing that the injury, or the aggravation, arose out of, or in the course of, employment, and that the employment was a significant contributing factor to the injury or aggravation. [73] I allow the appeal, set aside the decision of the Regulator dated 21 June 2013 and determine that the Appellant's claim is one for acceptance. [74] I order that Woolworths pay the Appellants costs of and incidental to the appeal. -- 13 of 13 --