Safety, Rehabilitation and Compensation Act 1988, sections 4, 5A, 5B, 14, 16 and 19

Federal Broom Company Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626

Commonwealth Banking Corporation v Percival [1988] FCA 240; (1988) 20 FCR 176

Commonwealth of Australia v Beattie [1981] FCA 88; (1981) 35 ALR 369

Tippett v Australian Postal Corporation (1998) 27 AAR 40

Wiegand v Comcare Australia [2002] FCA 1464

Mellor v Australian Postal Corporation [2009] FCA 504; (2009) 108 ALD 159

Treloar v Australian Telecommunications Commission [1990] FCA 511; (1990) 97 ALR 321

Comcare v Sahu-Khan [2007] FCA 15; (2007) 156 FCR 536

Comcare v Canute [2005] FCAFC 262; (2005) 148 FCR 232

Canute v Comcare [2006] HCA 47; (2006) 226 CLR 535

Popovski v Ericsson Australia Pty Ltd (1998) VSC 61

Meddis v Victorian WorkCover Authority and Anor (County Court, Unreported, 24 April 1996)

Allman v Major Furnace and Engineering Pty Ltd (County Court, Unreported, 14 March 1997)

1. Mr Huynh, the applicant in these proceedings, arrived in Australia in 1979. He was born in Vietnam and has been a full-time employee of the respondent since 1993. He is presently 60 years of age.
2. He applies to review two decisions of the respondent, the Australian Postal Corporation, seeking to restore liability which had previously been accepted for plantar fasciitis of his right foot and to review two decisions of the respondent for plantar fasciitis of his left foot, for which liability was denied.
3. The diagnosis of bilateral plantar fasciitis was not in issue. The issues principally in dispute were the relationship between plantar fasciitis and the employment and whether the applicant had an incapacity to work overtime.

1. The applicant first worked in Australia operating a machine which printed T-shirts. His duties involved folding and packing the T-shirts into boxes. He then obtained employment elsewhere connecting electrical cables to lights. He worked whilst standing in both of those jobs. He did not have heel pain.
2. He then obtained employment for about two months with the respondent but left when he obtained a tip truck and became a self-employed driver for about five years.
3. On 18 May 1993 the applicant re-commenced work with the respondent and has remained in its employment. He worked initially as a mail officer at the Southern Mail Centre in Clayton. His work involved one-hourly rotations each day between sitting and standing. The applicant also worked overtime which was regularly available at about six hours per week.
4. In 1999, the applicant moved to the Dandenong Letters Centre. He rotated between different sections which involved sorting and processing mail. Compared to his previous duties at the Southern Mail Centre, the applicant was exposed to heavy work, frequently lifting bags, tubs and boxes of mail up to 16 kilograms and significantly, much more standing whilst working. All of his work was conducted wearing heavy boots, standing and walking on a concrete floor.
5. The applicant affirmed a statement he lodged prior to the proceedings dated 12 August 2014 (Exhibit A1) where at paragraphs 7 and 8 he recorded:
   1. ....I did not sit down at all unless I was on a break.... I was working a nine-day fortnight during this period and performed approximately 10 hours of work per day including the regular overtime.
   2. .... If I was lucky I would get half an hour to sit down whilst sorting but most of the time I was on my feet ...
6. On 7 April 2009 the applicant experienced pain in the heel of his right foot whilst at work. In his incident report (T4, page 36), investigation reports (T4, page 37 and T5, page 39) and a witness statement (T8, page 43) there are recordings of the pain occurring after working the entire shift whilst standing and walking. Despite a rehabilitation plan recommending that the applicant work alternating between 30 minutes standing and 90 minutes of sitting, commencing on 4 May 2009 (T13, page 51), the applicant said that regime did not commence until May 2011. He said from May 2009 he worked alternating between sitting and standing each at one hour.
7. The basic shift worked by the applicant was 7 hours and 21 minutes. Before April 2009, the applicant always worked overtime which was regularly offered. He worked overtime after April 2009 until August 2011, at about the time he began to experience pain in his left heel. He claimed compensation for loss of income by incapacity to work overtime. His normal weekly earnings (NWE) were calculated having regard to the regularity of overtime that he had worked and which would have been available to him. The respondent paid compensation until 3 August 2012 as a consequence of the loss of income by incapacity to work overtime. From that date the respondent decided, by regard to a report from Dr Turnbull, its facility nominated doctor, that the applicant has a capacity to earn his NWE (T94, page 178 and T99, pages 185 - 187). In effect, the respondent ceased compensation payments for loss of income by incapacity to work overtime. That is one of the decisions under review in this proceeding.
8. It appears that the delegate sent a copy to the applicant of Dr Turnbull's medical report of 31 May 2012 (T86, pages 163 - 165) with the primary determination and this is the report being referenced to in his determination (T94, page 178). At page 165, Dr Turnbull recorded that:

[The applicant] has steadfastly refused to either do overtime work duties nor has he been willing to increase his standing duties beyond 30 minutes with a 90 minute period of sitting. He has point blank refused my attempts to increase his work duties or hours. I have asked him many times to attempt an increase but my efforts have always been met with complete refusal.

1. Before he wrote his report of 31 May 2012, Dr Turnbull had been issuing medical certificates restricting the applicant to work of 30 minutes of standing (on a rubber mat) followed by 90 minutes of sitting and not to work overtime (T76, page 147, T78, page 150 and T81, page155). Dr Turnbull certified the same restrictions and incapacity to work overtime between 18 May 2012 to 7 September 2012, being a period almost entirely after the report was written (T84, page 160, T88, page 168, T91, page 173 and T96, page 181). He last consulted with the applicant on 10 August 2012. Thereafter, the applicant has been treated by Dr Vu, general practitioner.
2. The applicant continues to work his basic shift of 7 hours 21 minutes. He said the pain is always present, it is not relieved by rest and it increases during each day at work. At the end of each day, he said he has difficulty walking and described the pain as excruciating. He removes his shoes and massages his feet to relieve the intensity of the pain.

1. Doctors Turnbull and Vu, general practitioners, who treated the applicant, gave evidence. Mr Khan, an orthopaedic surgeon; Dr Bloom, an occupational physician and Mr Haig, a consultant orthopaedic surgeon each examined the applicant on a medico-legal basis and also gave evidence.
2. There was consistency in the doctors' evidence of their acceptance that the applicant continues to suffer pain from a condition which is properly diagnosed as bilateral plantar fasciitis and which has become chronic. They agree that the condition is idiopathic or constitutional in nature, is difficult to treat and usually resolves spontaneously.
3. Dr Bloom and Mr Haig agreed with an opinion expressed in a report by Dr Philip Haynes, a consultant occupational physician who examined the applicant at the respondent's request, predominantly in relation to recent left shoulder surgery. In response to a question asked of him concerning when the restrictions of sitting and standing at work as a result of the bilateral plantar fasciitis are likely to reduce, he recorded that he was not able to predict that his restrictions will reduce at any time in the foreseeable future. It is highly likely that his current restrictions will be permanent or at least applicable until retirement age (T163, page 322).
4. Doctor Bloom and Mr Haig were of the opinion that the bilateral plantar fasciitis was not caused by prolonged standing at work but were satisfied that his work had significantly contributed to an exacerbation of symptoms.
5. Dr Bloom recorded in his report of 13 August 2013 (Exhibit R3) that the significant contribution ... [was] in the form of exacerbation and/or aggravation but said in his evidence that the word aggravation was ambiguous and implied that the condition and the symptoms were likely to be permanent. In his opinion, the condition should be regarded as temporary because the symptoms of pain will eventually resolve spontaneously and the symptoms will also resolve when the exacerbating effects of the condition, that is prolonged standing on a concrete surface, cease.
6. Mr Haig recorded in his report of 11 February 2013 (T119, page 245) that standing on hard surfaces increased the applicant's symptoms and there had been a significant degree of aggravation by his employment. In cross examination, he did not resile from the use of the word aggravation, because he was satisfied that the applicant did suffer bilateral plantar fasciitis, that it did produce symptoms of pain which he associated with standing on hard surfaces for prolonged periods at work and the pain had become chronic. However in re-examination, he said that the word exacerbation would have been more appropriate because he regarded the bilateral plantar fasciitis as a temporary condition which would, eventually, spontaneously resolve. He clarified that opinion by acknowledging that having regard to the chronicity of the condition and its present duration of about five years, he was not optimistic that there would be any spontaneous resolution before the applicant ceased performing work which involved prolonged standing.
7. Dr Vu largely adopted the contents of his report of 17 September 2014 (Exhibit A3) in his evidence. I confess that by a combination of a poor loudspeaker telephone in the Tribunal hearing room and difficulty comprehending his accent, I have relied on the contents of his report summarising his evidence. He first consulted with the applicant in September 2012 with a complaint of pain in both feet which he diagnosed as bilateral plantar fasciitis. In his experience, that condition is common amongst persons who engage in prolonged standing. He issued a number of medical certificates to the applicant to avoid prolonged standing at work, to reduce the level of discomfort and also reduce the risk of the condition becoming worse.
8. Dr Vu thought the applicant could try overtime for one hour on each occasion that it is offered for a period of eight weeks and then assess how he had coped. He should also wear appropriate orthotics. Any increase in the hours worked as overtime would depend on an assessment of the applicant's level of pain at the end of the eight-week period.
9. The applicant was referred to Dr Turnbull by the employer as its nominated doctor. He said between 60 and 80 per cent of his practice involved assessing workers who had been referred by employers. His practice is to encourage persons to return to work but said if the worker says they can't do it, they can't. He acknowledged that he had reported that the applicant had refused to increase his working hours by undertaking overtime but he continued to provide medical certificates restricting him working longer than the basic hours. He said those medical certificates were issued as an expression of the demands that the employment was having on the applicant.
10. Dr Turnbull said that bilateral plantar fasciitis is a painful condition which is difficult to treat. He accepted that the applicant did suffer from pain.
11. In his report of 31 May 2012 (T86, page 165) he recorded that the applicant had steadfastly refused to work overtime or increase work duties whilst standing beyond 30 minutes. He concluded that part of his opinion with the sentence... Other factors are may be at play (sic). He said that comment was speculation on his part, he was not the applicant's treating doctor and he wondered whether there may be other factors at home or in the workplace explaining why he did not want to work overtime. He said it was not his opinion that there were other factors at play and said that may be a possibility.
12. In his first report of 17 February 2010 (T30, pages 80 - 82), Dr Turnbull recorded that he thought bilateral plantar fasciitis would be temporary and a complete recovery would be achieved over the next 3-6 months (at page 81). Upon reviewing his notes and the medical report of 31 May 2012 (T86, page 163 - 165), Dr Turnbull was satisfied that the condition had become chronic. He agreed with an opinion expressed by Mr Haig in his report of 19 June 2013 that [p]lantar fasciitis usually resolves within 12-24 months but occasionally is refractory and continues for longer than that, which appears to be the case with Mr Huynh, certainly on one side.
13. Mr Khan was satisfied that the applicant has suffered micro trauma to his heels over many years of standing whilst working, which ultimately precipitated pain, which had become chronic. He was satisfied that the bilateral plantar fasciitis was consistent with his work history.
14. It was his opinion that the applicant had been inadequately treated and should have been referred to an orthopaedic surgeon. He should also be provided with appropriately fitted shock absorbing moulded orthotics. When he examined the applicant in July 2013, he thought the applicant could work rotations between sitting and standing each of one hour duration.
15. He said the extent of the applicant's pain at the end of his base hours incapacitated him from working overtime. He did not dismiss the possibility of overtime being resumed but only if he was appropriately treated and the work undertaken in overtime allowed him to remain seated.

1. The applicant impressed me as a witness of truth. He did not embellish or exaggerate the pain he suffers in both feet which, as a fact, I am satisfied he endures.
2. The parties agree that the applicant suffers bilateral plantar fasciitis. The evidence points to the painful effects of the condition first becoming apparent in the applicant's right foot and later in his left foot. As a fact, I am satisfied that there was a significant contribution to the bilateral pain (as a consequence of the bilateral plantar fasciitis) by the applicant's employment. I will give reasons for this finding later.
3. The respondent has made four decisions which are under review in these proceedings:
   • (a) 2012/4849 - the applicant is able to earn NWE and has no present entitlement under s 19 of the Act; (the respondent had paid compensation for loss of income by incapacity to work overtime up to 3 August 2012);
   • (b) 2014/4024 - liability denied pursuant to ss 16 and 19 of the Act for the left foot;
   • (c) 2014/4026 - liability denied pursuant to s 14 of the Act for the left foot:
   • (d) 2014/4027 - no present entitlement to compensation benefits pursuant to ss 16 and 19 of the Act for the right foot.
4. On behalf of the applicant it was submitted that bilateral plantar fasciitis is an idiopathic inflammatory condition which is aggravated and/or exacerbated by protracted periods of standing and walking on hard surfaces. The condition is an ailment within the meaning of the Act (s 5B) to which the employment has contributed to a significant degree. The development of the condition occurred over many years of employment with the respondent and the pain which subsequently emerged has continued. It is now chronic and the effects of it have not ceased.
5. The respondent contends that there is no relationship between bilateral plantar fasciitis and the employment, any pain suffered by the applicant is no more than a temporary exacerbation and the employment did not contribute significantly to the manifestation of bilateral plantar fasciitis. Additionally, it was contended that the applicant is capable of working overtime.
6. Dr Bloom reported that the applicant's work had significantly contributed to an aggravation and/or exacerbation of the painful symptoms. Mr Haig reported a similar conclusion but confined it to an aggravation. In evidence, they both resiled from the reported opinions of aggravation and preferred the expression exacerbation. They both said the symptoms of pain were likely to spontaneously resolve and the painful symptoms can therefore be regarded as having a temporary duration. The concept of aggravation suggested to them a degree of permanence which by the characteristics of the diagnosed condition, was not appropriate. Dr Turnbull was also of the view that the pain is likely to be of temporary duration. Hopefully, the prophecy of each of those doctors is fulfilled.
7. However at the date of hearing, the applicant's pain existed and it was chronic. Dr Haynes reported that it was highly likely that the applicant's restrictions, that is, incapacitating pain preventing him from working overtime, are likely to continue until he retires. Mr Haig was satisfied that having regard to the duration and chronicity of the pain suffered by the applicant, he could not be optimistic that there would be a spontaneous resolution of pain whilst the applicant continued work involving prolonged standing.

1. The decisions under review cause the principal issues between the parties to be whether:
   • (a) there is a relationship between bilateral plantar fasciitis and employment; and
   • (b) as a consequence of pain from the bilateral plantar fasciitis, the applicant is incapacitated from working overtime. (The respondent's records point to the base hours actually worked by the applicant at 36.75 hours per week and his NWE having regard to overtime availability is 42.58 hours per week); and
   • (c) he has a need for reasonable medical and like treatment.
2. Relevant parts of the Act are as follows:

(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or

that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.

(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment by the Commonwealth or a licensee, the following matters may be taken into account:

(b) the nature of, and particular tasks involved in, the employment;

(c) any predisposition of the employee to the ailment or aggravation;

(d) any activities of the employee not related to the employment;

(e) any other matters affecting the employee's health.

This subsection does not limit the matters that may be taken into account.

significant degree means a degree that is substantially more than material.

(1) In this Act, unless the contrary intention appears:

aggravation includes acceleration or recurrence.

ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).

(9) A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:

(b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.

1. In the High Court decision of Federal Broom Company Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 (Semlitch), the Court heard an appeal from a decision of the Supreme Court of New South Wales (Full Court) which involved an interpretation of the definition of injury within s 6(1) of the Workers' Compensation Act, 1926-1960 (N.S.W.) which was relevantly defined as including the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to such aggravation, acceleration, exacerbation or deterioration. The word disease was not separately defined by that Act.
2. The leading decision was delivered by Kitto J (at page 634) who largely agreed with the decision of Moffit J of the NSW Full Court that in the case of a disease, the effects of it are properly described as an exacerbation. His Honour adopted a dictionary meaning of the word exacerbation being a temporary increase in the violence of the symptoms of a disease and decided the word exacerbation...As applied to a disease it is properly used to refer to the effects which the disease produces in the victim rather than to the advance of the disease itself to a more serious stage of its development.
3. Kitto J decided_... Once it was established, as it was established beyond question before the Commission by the evidence of the psychiatrists who were called, that the incident of 1st December 1960 acted upon a pre-existing condition of mental illness (a disease) to produce a delusion causing incapacity for work, the respondent had made a clear case of exacerbation of her mental disease, according to the ordinary meaning of the word._
4. Moffit J decided (and Kitto J agreed).... There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms. The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism. Kitto J decided, as an appropriate analogy... Accordingly if salt be applied to an open wound, making the wound no worse but causing it to smart as it had not smarted before, it is proper to say that there is an exacerbation of the wound.
5. The Full Federal Court in Commonwealth of Australia v Beattie [1981] FCA 88; (1981) 35 ALR 369 (Beattie) decided an appeal involving the Compensation (Commonwealth Government Employees) Act 1971 (the 1971 Act) and referred extensively to the decision in Semlitch. The Court discussed the definition of injury as it then appeared in s 5of the 1971 Act which was defined as any physical or mental injury and includes the aggravation, acceleration or recurrence of any physical or mental injury but subject to s 29 does not include a disease or the aggravation, acceleration or recurrence of a disease (s 29 of the 1971 Act entitled an employee to compensation for a disease if the employment contributed by an aggravation, acceleration or recurrence).
6. The Court did not consider that the absence of the word exacerbate from the legilation was of significance. It relied (pages 377 - 378) on a dictionary definition of the word aggravate and was satisfied that a synonym for exacerbate is to aggravate and exacerbation is the increase in severity of disease or suffering. The secondary meaning of aggravation is an increasing, or being increased, in gravity or seriousness. It also means the action of irritating. Roget's Thesaurus says that the two words are synonymous. The Court was satisfied that the word exacerbate in Semlitch applies with equal force in relation to the word aggravate in the context in which it is used in the legislation here.
7. Relevantly, the word exacerbate is not within the definition of disease in s 5B of the Act (reproduced above) and which applies to this review.
8. Notwithstanding the different legislation which was considered in Semlitch, the Full Court in Beattie was satisfied ... that pain brought on by work activity may constitute an aggravation of a pre-existing injury, even though no pathological change takes place. The Full Court adopted the decision of Kitto J in Semlitch and decided ... there can be cases where there will be an exacerbation - and thus in our view an aggravation - of a previously existing injury by activity which increases or precipitates pain. Rubbing salt into a wound, the example taken by Kitto J, is but an instance of this (page 378).
9. The Full Federal Court in Commonwealth Banking Corporation v Percival [1988] FCA 240; (1988) 20 FCR 176 (Percival) referred to Semlitch and Beattie and decided that symptoms of a disease are part of the disease. It is indeed fundamental to compensation law that a symptom of an injury or disease is a part of the condition in respect of which compensation for incapacity is granted. Pain is probably the most common symptom of injury or disease. It is equally the most common factor leading to compensable incapacity (at page 180).
10. The decisions in both Beattie and Percival were followed and adopted in Tippett v Australian Postal Corporation (1998) 27 AAR 40.
11. In Wiegand v Comcare Australia [2002] FCA 1464, von Doussa J, when considering the definition of disease in s 5B of the Act decided at [21]:

I do not think there is any material distinction to be drawn between an exacerbation of an ailment and an aggravation of an ailment. In the context of this case both expressions convey the same notion, namely that the depression became worse. It is not to the point to ask whether the vulnerability is the result of constitutional factors rather than external factors. It is not the vulnerability that constitutes or may constitute an aggravation. The relevant question which arises from the definition of disease is whether a stress or stressors to which Mr Wiegand is vulnerable happened, and whether the happening was contributed to in a material degree by his employment.

(The legislation in force from 13 April 2007 compels the contribution to a disease by the employment to be by a significant degree. That issue will be dealt with later.) At [24], his Honour, having considered Semlitch, concluded:

.... All that is required is that the employee is exposed to some incident or state of affairs in the course of the performance of his duties and to which he would not otherwise have been exposed, which is a contributing factor to the ailment or an aggravation of the ailment suffered by the employee....

1. The most recent authority that I can find on these issues is Mellor v Australian Postal Corporation [2009] FCA 504; (2009) 108 ALD 159, a decision of Bennett J in the Federal Court. Although his Honour decided to remit the application for rehearing concerning errors he found with respect to findings made by the Tribunal concerning materiality (as that level of contribution existed in the Act when the application was first heard) he was satisfied at [13] with agreement between the parties that aggravation of a non-symptomatic condition without pathological change can constitute an injury under the SRC Act. He also adopted at [24] conclusions reached in Beattie that ... an injury may be aggravated if the experience of the injury is increased or intensified and the conclusions also of both Beattie and Semlitch at [26] that ... the absence of change in the underlying condition nor the temporary nature of the symptoms experienced preclude the existence of an aggravation of an ailment for the purposes of the SRC Act.
2. The decisions above point to there being no relevant distinction between an aggravation or an exacerbation of a disease (Semlitch; Beattie; Wiegand). Pain is a part of the disease (Beattie; Percival; Tippett). The vulnerability to the experience or effect of pain by the aggravating or exacerbating activities in the employment (as opposed to vulnerability by the disease alone - in this case, an ailment) cause enquiry into the degree of contribution by the employment, which by the current definition must be significant.
3. The Act at s 5B(3) unhelpfully defines significant degree to be a degree that is substantially more than material. A number of matters are recorded at s 5B(2) which may be considered when deciding whether the contribution has reached the requisite threshold. The list is not exhaustive.
4. Prior to Act No. 54 of 2007 which added s 5B with effect from 13 April 2007, the Act imposed a degree of contribution by employment to an ailment or the aggravation of it as material. The current definition points to the level of contribution to be higher by the use of the word significant which is defined as substantially more than material.
5. In the Full Federal Court decision of Treloar v Australian Telecommunications Commission [1990] FCA 511; (1990) 26 FCR 316at 323 decided that the word material only emphasised that the employment did in fact and in truth contribute to the condition complained of. The causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established, however, it matters not that the contribution be large or small.
6. In Comcare v Sahu-Khan [2007] FCA 15; (2007) 156 FCR 536 (Sahu-Khan), Finn J adopted relevant parts of the reasons of the Full Federal Court decision in Comcare v Canute [2005] FCAFC 262; (2005) 148 FCR 232 (Canute) (which was reversed by the High Court in Canute v Comcare [2006] HCA 47; (2006) 226 CLR 535 but which did not discuss the issue of material contribution). The Full Court in Canute decided at [67] that the requirement that a contribution be material, ... imposes an evaluative threshold below which a causal connection may be disregarded. Finn J at [14] decided that a de minimis contribution would be below the evaluative threshold but if employment is found to be a contributing factor it did not matter whether the contribution was of any particular size or degree (Treloar, pages 320 and 323). At [16], his Honour decided that the words in a material degree require an evaluation of all relevant contributing factors in order to determine whether the employment did or did not contribute materially to the ailment. That was, he decided, a matter of fact and degree.
7. Turning then to the definition currently in force, the word substantially points to the degree of contribution being something more than material if it is to amount to being significant.
8. In Popovski v Ericsson Australia Pty Ltd (1998) VSC 61 Ashley J heard an appeal from a Magistrate where the claim concerned s 82 of the Accident Compensation Act 1985 (Vic). Entitlement to compensation pursuant to that section existed if injury arose out of or in the course of the employment and if the employment was a significant contributing factor.
9. Two decisions of the Victorian County Court were considered by his Honour - Meddis v Victorian WorkCover Authority and Anor (Unreported, 24 April 1996) (Meddis) and Allman v Major Furnace and Engineering Pty Ltd (Unreported, 14 March 1997) (Allman).
10. In Meddis, Judge Rendit decided that the words significant contributing factor mean more than de minimis but less than a major or a dominant factor. Indeed, one can have several significant contributing factors which are unrelated but which play their part in the occurrence of the injury. I consider that it is basically a question of fact.
11. In Allman, Judge Strong referred to a dictionary definition of the word significant - of considerable amount or effect - and concluded that significant was intended to emphasise that workplace injuries will be compensable only if there is a strong connection between work and injury.
12. His Honour Ashley J at [61] preferred the interpretation in Allman because the word significant... accurately reflects the sense of the legislation. In concluding his analysis of that issue he recorded... It remains only to say that, at a practical as distinct from a conceptual level, the distinction between an employment contribution exceeding de minimis and an employment contribution of considerable amount or effect may be more apparent than real.
13. In my view, the interpretation of the word significant by Judge Strong with respect should not be adopted in isolation from an interpretation of the composite phrase significant contributing factor. Whilst I agree that the word significant in the Act suggests a degree of contribution which is more than material, to adopt the meaning given to it in Allman and then apply it to the composite phrase is more likely to result in an interpretation of the degree of contribution to be of considerable amount or effect which has no warrant in beneficial legislation and would unreasonably exceed the evaluative threshold (Canute; Sahu-Khan).
14. It would not be unreasonable to conclude that there may be a number of factors which contribute to an employee's incapacity. The task then facing a decision-maker is to determine which of those factors contributed to a significant degree_._ That decision will result from an evaluation of degree and fact.
15. Fortunately, the present application does not need such an evaluation because on the evidence, the contribution to the pain suffered by the applicant in his left and right feet was the aggravation or exacerbation of the ailment (bilateral plantar fasciitis), by the activities in the workplace of prolonged standing and walking on concrete surfaces for about 20 years. There was no evidence of any other cause or contribution. The medical witnesses agreed that the applicant's employment was responsible for the aggravation or exacerbation of the ailment.
16. The employment therefore did contribute in a degree which was significant to the aggravation of the applicant's ailment. I am satisfied and find as a fact that the experience and level of pain existing at the end of working ordinary hours - described by the applicant as excruciating - and the effect of it, incapacitates him from working overtime.

1. The four decisions under review in these proceedings are set aside. In substitution it is decided the respondent is liable and has been liable since the date of the reviewable decisions in applications 2014/4024 and 4027 for compensation to the applicant pursuant to ss 16 and 19 of the Act. It is also liable to pay compensation pursuant to s 14 in application 2014/4026.
2. Application 2012/4849 reviewed a decision of the respondent which found the applicant had no present (ongoing) entitlement pursuant to s 19 from 3 August 2012 with respect to incapacity from working overtime and consequent loss of income.
3. The respondent asserts that the applicant is capable of working overtime. No proposal has ever been made of the work he would be expected to undertake in overtime other than a continuation of his working regime during ordinary hours of work comprising 30 minutes standing and 90 minutes sitting. He also works that regime during his ordinary hours. It is that regime which caused the applicant to be incapacitated from working overtime because at the end of working ordinary hours his pain is excruciating and he is unable to continue with extra hours of work.
4. The applicant has not been offered work during overtime where he can remain seated. His capacity to undertake overtime has not been assessed pursuant to s 36 or provided with a rehabilitation program pursuant to s 37 of the Act. The evidence of Mr Khan and Dr Vu point to the applicant's need for appropriate treatment and provision of orthotics pursuant to s 16. Until there is attention to these matters I am satisfied the applicant is and has been incapacitated from working overtime since 3 August 2012. The respondent therefore has had an entitlement from that date pursuant to s 19 for compensation calculated by regard to the loss of overtime income due to incapacity. The respondent's decision made in this application is also set aside. On the present evidence, the effect of this decision is to entitle the applicant to calculation of his compensation by regard to his NWE of 42.58 hours per week from 3 August 2012.
5. The applicant is entitled to have his costs and disbursements paid by the respondent pursuant to part 6.10 of the Guide to the Workers Compensation Jurisdiction (version 2.0).

I certify that the preceding 69 (sixty-nine) paragraphs are a true copy of the reasons for the decision herein of John Handley, Senior Member.

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