(a) Whether Mr Piggin suffered from an 'ailment' or an 'aggravation of an ailment' as defined in ss 4(1) and 5B of the SRC Act.

(b) If so, whether the ailment (or aggravation of an ailment) was 'contributed to a significant degree' by his employment with Virgin and therefore a 'disease' within the meaning of the SRC Act.

(c) If so, whether as at 2 December 2022 and presently, Mr Piggin continues to suffer the effects of his injury, and if so, whether that injury remains contributed to a significant degree by his employment with Virgin.

(d) If so, does that injury result in either a need for medical treatment (s 16) or incapacity for work (s 19).

1. Mr Piggin has been employed by Virgin as a baggage handler since July 2012. That role consisted of physical and repetitious jobs that included loading and unloading bags from luggage barrows. He is now 61 years of age, being born in 1963.
2. On 12 July 2022, Mr Piggin injured his left knee when moving a luggage barrow by hand whilst working for Virgin (the Incident).
3. On 19 July 2022, Mr Piggin made a claim for 'enthesopathy of the quadriceps tendon' to Virgin (the Claim).[3]
4. On 9 August 2022, Virgin determined it was liable to pay compensation to Mr Piggin in respect of 'enthesopathy of the quadriceps tendon left knee' (the Injury) with a date of injury of 12 July 2022 and acceptance up until 2 September 2022, pursuant to s 14 of the SRC Act.[4]
5. On 2 December 2022, Virgin determined Mr Piggin had ceased to suffer the effects of the Injury and there was no present liability to pay compensation for medical treatment under s 16 and incapacity payments under s 19 of the SRC Act.[5]
6. On 8 December 2022, Mr Piggin requested Virgin to reconsider its determination dated 30 November 2022.[6]
7. On 16 December 2022, Virgin affirmed its determination dated 30 November 2022 (Reviewable Decision)[7].

1. The SRC Act relevantly provides:
   1. 2. 3. 4. 5. 6. 7. 8.

(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).

(a) medical or surgical treatment by, or under the supervision of, a legally qualified medical practitioner; or

(b) therapeutic treatment obtained at the direction of a legally qualified medical practitioner; or

(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.

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) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

(2) Compensation is not payable in respect of an injury that is intentionally self‑inflicted.

(3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self‑inflicted, unless the injury results in death, or serious and permanent impairment.

16 Compensation in respect of medical expenses etc.

(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.

(2) Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.

19 Compensation for injuries resulting in incapacity

(1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.

(2) Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:

(a) the amount per week (if any) that the employee is able to earn in suitable employment;

(b) the amount per week (if any) that the employee earns from any employment (including self‑employment) that is undertaken by the employee during that week.

NWE is the amount of the employee's normal weekly earnings.

1. 10. 11. 12. 13. 14. 15. Mr Piggin provided a written statement, dated 15 December 2023, that relevantly states[8]:

(a) Prior to working for Virgin, he had been employed as an apprentice automotive spray painter after high school and after as a concrete re-surfacer. > > (b) My role as a Pit Crew Operator was physically demanding and required me to manually handle cargo of various sizes and weights lifting those items from conveyors and loading them onto luggage barrows or unloading items from the barrows and placing them onto conveyors. I was also required to load and unload luggage and freight from aircraft. Depending on which task I needed to do as one of three operators assigned to a plane, I had to either load or unload items from a conveyor leading to the hold of the aircraft or I was in the hold handling baggage either into or out of the plane.

In or about 2015 I hurt my right knee at work. I believe I reported the injury but didn't go to the doctors at that time and kept working even though the knee was painful. I missed a bit of time off work because of the pain in my right knee so I made some alterations to the way I did my job so that I could keep working. For example, instead of kneeling when I was in the hold of the plane, I would sit down to take the weight off my knee. My right knee progressively got worse to the point that I had trouble bending it so I went and saw my doctor in June 2017 and he arranged for an x-ray and in or about November 2017 and referred me to a specialist, Dr Farmer, Orthopaedic Surgeon who arranged for me to have an MRI. In or about February 2018 I lodged a Worker's Compensation claim for my right knee injury and the Respondent denied liability for the injury. Although I didn't agree with the decision, I didn't take the matter further. In or about early 2019, my right knee pain got worse and my doctor referred me to another Orthopaedic Surgeon, Dr Reilly, who I saw in or about March 2019. I had a course of three steroid injections into the right knee over a period of about twelve months. After each of the injections I had a period of time when the pain eased but on each occasion after a while the pain returned. Even though my right knee was painful, I was still working my full duties.

On 12 July 2022 I was trying to pull a luggage barrow loaded with ten to fifteen bags toward the rear of the plane. I grabbed the ring on the tow arm of the barrow and as soon as I started pulling it I felt pain at the rear of my left knee. It felt like someone had punched me in the back of the left knee and as a result I dropped the tow arm. I went to pick the tow arm up and bent my left knee. As I did that I got another sharp pain and I dropped the tow arm again. I stood still for a little while then walked over to the Team Leader and explained what had happened. I had to escort that plane out which required me to walk beside the plane as it was being pushed out by a tug. I told the tug operator to take it slowly otherwise I wouldn't be able to do it due to the pain in my left knee. After this I went to the next plane to start working on it but the pain in my left knee was so bad I told the Team Leader it was getting worse so all I could do was marshal. At that stage, the Team Leader contacted her Supervisor and I was told to report back to the office. I went and saw the Ramp Supervisor and as there was only a half hour left in the shift I was told to go home.

When I got home I iced the knee and took some Nurofen but the pain got worse overnight so I went and saw a doctor, Dr Swe, the next day. The doctor arranged an x-ray and ultrasound of my left knee which I had the next day. I was off work for about five weeks and was on crutches to help me move around. The doctor also referred me for physiotherapy. I was given exercises to do but this seemed to aggravate my knee and it would start to swell up. My specialist said I should try riding a stationary bike and I started trying to do ten minutes with no resistance. Over time I have increased this to twenty minutes on the second lowest resistance.

I lodged a Worker's Compensation claim and the Respondent admitted liability for the injury to the left knee by a Determination dated 9 August 2022. My doctor referred me for a CT scan and an MRI and after that I was again referred to Dr Reilly, Orthopaedic Surgeon. Dr Reilly believes the only thing she can do to correct the problem with my left knee is to perform a total left knee replacement.

I returned to work on light duties and reduced hours being four hour shifts but I wasn't able to cope so I virtually haven't worked since the accident. There is a lot of walking in my job and although I can walk, it is painful. It's also difficult to get into and out of the tugs as most of them need me to step up into the tug and that causes my left knee to become more painful. My left knee pain prevents me from being able to lift and carry baggage or freight and to get into the holds of aircraft due to the need to kneel to gain access.

...

I attend my doctor every month to obtain medical certificates. I stopped going to the physiotherapist because it didn't seem to be helping. I go to the gym three times a week to do my cycling on the stationary bike. I am currently taking medication daily for the pain being Targin, Mobic and Panadol Osteo.

[Emphasis added]

(a) After he injured his right knee in 2015, he missed some time off work and he received ongoing medical treatment, including five cortisone injections.[9] For the most part it did not prevent him from performing his duties.[10] > > (b) He described the Incident where he was trying to move a luggage barrow:[11]

I noticed that the other barrow only had about 10 or 15 bags. It was about five metres away from the bottom of the belt. I went over to it, grabbed the tow ring. Bent my knees, straightened my bag (sic.), as I always did, and tried to pull through my legs. And at that stage I felt what I can only describe as like a heavy punch to the back of my knee.

(c) After some months off work after the Incident, Mr Piggin returned to light duties performing pushback duties but only on tugs that weren't too high as it caused too much pain to his left knee climbing up into the higher tugs.[12]

(d) He had left knee replacement surgery on 28 June 2024. Prior to having that surgery, the only time his left knee had been pain free since the Incident was sometimes overnight and was unable to work in the same fashion as he had prior. He had been taking Targin 100 at night, 50 in the morning, Panadol Osteo, 2 tablets three times a day and 5 milligrams of Endone twice a day prior to the left knee replacement. Mr Piggin said:[13]

It prevented me from doing most things. I struggled to do any sort of housework. I couldn't do anything outside. I'd sort of just try to do little half an hour things, do the cooking or something like that. But anything that involved walking around a lot or having to bend over or anything like that, yes, I couldn't really do.

(e) He stopped going to Gold's Gym between June and October 2022 as:[14]

I had long COVID, so I was heavily fatigued and, as it was stated, we were really busy at work. I couldn't do both. I had to, unfortunately, stop going to the gym.

(f) Since his left knee replacement his left knee has been painful and swollen.[15]

1. During cross examination in response to a question from Mr Clark on whether Mr Piggin twisted his left knee at the time of Incident his evidence was[16]:

Q. So it's not as if you twisted your left knee, did you?

A. It was a split second thing. I don't think I did but it was a split second thing.

Q. Your braced yourself, pulled on the barrow, then felt that pain in the back of your left knee at least. Isn't that right?

Q. So it's fair to say that there was no twisting of your right knee, was there?

1. The Tribunal considered that Mr Piggin was a reliable and credible witness who answered questions frankly and made appropriate concessions.

1. On 17 April 2019, Dr Burgin, a radiologist, provided a report of an MRI of Mr Piggin's right knee that concluded (2019 MRI):[17]

Tricompartmental degenerative changes, most severe in the medial compartment with a complex tear of the medial meniscus and horizontal tear of the lateral meniscus. The meniscal tears have not progressed since the previous examination. There has been mild progression of degenerative changes, especially at the medial compartment.

1. On 14 July 2022, Dr Yu, a radiologist, provided a report of an Ultrasound and Xray performed on Mr Piggin's left knee that provides:[18]

Acute pain on left knee when pulling the bag while bending the knee at work.

The musculature superior to the popliteal fossa appears normal. No Baker's cyst seen. The popliteal artery and vein are patent. Calcification of 6mm associated with the distal quadriceps tendon suggesting enthesopathy. Some fluid in the suprapatellar recess. No effusion in the infrapatellar recess. The patellar tendon appears normal. The menisci and collateral ligaments appear normal.

1. There is enthesopathy of quadriceps tendon.
2. Collateral ligaments and menisci appear normal. No significant findings.

The bones show normal alignment. There is mild moderate osteoarthritic change involving the medial compartment and in the patellofemoral joint of the right knee. There is a small bony spur arising from the upper pole of patella in keeping with enthesopathy. No fracture or erosion seen.

1. On 19 August 2022, Dr Cleland, a radiologist, provided a report of an MRI performed on Mr Piggin's left knee that provides (2022 MRI):[19]

Coronal PD fat sat. Sagittal PD and T2 fat sat. Axial PD fat sat.

Moderate amount of fluid seen in the MCL bursa suggests moderate MCL bursitis. The MCL is intact. Deep and superficial soft tissue T2 signal hyperintense oedema suggests a MCL strain injury. The lateral meniscus remains intact.

Complex tear of the medial meniscus. Vertical tear through the mid posterior horn of the medial meniscus. (Summary series). Marked abnormal T2 signal hyperintense change to the posterior horn that extends to the posterior root insertion. The meniscal body is subluxed medially. Horizontal tear component through the posterior horn and meniscal body that extends to both femoral and tibia! articular surfaces.

Abnormal T2 signal hyperintense change to the femoral surface of the anterior horn of the lateral meniscus suspicious for a horizontal meniscal tear. No displaced meniscal material apparent.

Superficial articular cartilage erosion median ridge and medial patellar facet with areas of full thickness Assuring. The articular cartilage overlying the lateral patellar facet and within the femoral trochlear groove remains well preserved.

Full thickness articular cartilage fissuring and erosion mid medial femoral condyle. Undisplaced chondral flap tear mid to posterior aspect of the mid medial femoral condyle (summary series). Full thickness chondral cartilage defect anterior aspect medial tibial condyle (5.7 x 3.9 mm, summary series) with underlying T2 signal hyperintense bone oedema.

Full thickness articular cartilage defect (6.1 x 5.6 mm) posterior medial aspect of the lateral tibial condyle.

Multiloculated parameniscal cyst adjacent to the anterior root insertion of the anterior horn.

Intra-articular debris beneath the anterior horn of the medial meniscus and posterior to the posterior aspect medial tibial condyle (summary series). The medial and lateral retinaculum remain intact.

Complex tear of the medial meniscus. Vertical tear through the mid posterior horn of the medial meniscus with medial subluxation of the meniscal body.

Suspected horizontal tear anterior horn of the lateral meniscus.

Moderate chondromalacia patella (grade ll/lll).

Full thickness articular cartilage defect medial and lateral tibial condyles as described above.

Undisplaced chondral flap tear medial femoral condyle.

1. Dr Reilly, an orthopaedic surgeon, provided a letter to Mr Piggin's general practitioner (GP) Dr Swe, dated 30 August 2022, that states:

His MRI shows a degenerative medial meniscal tear which is extruded, bone oedema from excess loading and an absence of medial tibial cartilage. I have explained to John and his wife who attended the appointment today that most of this is an exacerbation of his pre-existing arthritis'[20].

1. On 4 October 2022, Dr Reilly wrote a letter to Mr Piggin's GP, stating that, despite physiotherapy and gym, Mr Piggin's knee is not much better, the pain is predominately medial, and the meniscal root tear is not repairable with the only option is knee replacement.[21]
2. On 15 November 2022, Dr Reilly wrote a letter to Mr Piggin's GP stating that:

He is not coping with the pain and realistically he is headed towards a knee replacement which wouldn't be covered under WorkCover. I don't know whether he will ever return to his normal job to be honest[22].

1. On 20 December 2022, Dr Reilly wrote a letter to Mr Piggin's GP stating that he explained to Mr Piggin 'if every arthritic knee I saw got a disability pension there would be nobody working'[23].

1. Dr Judith Spurling provided a report, dated 15 December 2023, that relevantly provides:[24]
   1. Our instructions from John are that prior to the work event on 12 July 2022 he was not suffering any Left knee symptoms and had not required treatment or surgery. He agrees that he had required treatment for a right knee condition. We note that in your letter to Redcliffe Hospital dated 1 February 2023, reference is made to John having long term bilateral knee pain and having had surgery on both knees previously. Based on your records and knowledge of John's medical history, can you advise whether this is accurate?

Prior to the work event on 12 July 2022, John did not complain of left knee symptoms. He had osteoarthritis in both knees but the right was much worse. He had had some considerable treatment for his right knee including several cortisone and hyaluronic acid injections from a specialist. I am uncertain as to whether he had previous treatment for his left knee, but I am not aware of any and have no record of it.

(a) On 16 November 2002, Dr Spurling recorded in her medical notes that nothing could be done for Mr Piggin's left knee, except a knee replacement, 'that was because the knee was actually in a pretty bad way before he hurt it. So it wasn't amenable to any kind of immediate repair'[25]. > > (b) Mr Piggin had osteoarthritis of his left knee 'which he would have had all through but which was - started to bother him on that - in July when he went onto WorkCover'.[26]

2. During cross examination by Mr Clark, Dr Spurling answered questions relevantly as follows:

Q. You go onto to say, 'He had osteoarthritis in both knees but the right was much worse'?[27]

Q. So do I take that to mean that you're of the view at least that he had osteoarthritis in the left knee prior to 12 July 2022?[28]

A. Yes, that was pretty obvious from X-rays...that I saw would have been after 12 July.

Q. Certainly what you've set down there is that, okay, he already had fairly severe pre-existing osteoarthritis to his left knee?[29]

Q. As to whether or not that's attributable to any meniscal pathology, you say that's not a matter for you but for the orthopaedic surgeon?[30]

A. It's not. I'm not really into that stuff. It's not my specialty, I'm afraid.

Associate Professor Gary Nielsen - General Orthopaedic Surgeon

1. Associate Professor Gary Nielsen, provided a report dated 2 August 2023 that relevantly states:[31]

Mr John Piggin is a 60-year-old man who was employed as a permanent part-time Baggage Handler by Virgin Australia at the time of his reported work injury, dated 12 July 2022. Mr Piggin stated that in the process of pulling a luggage barrow towards him, with him in a partially squatted position, he impact-loaded and twisted that left knee, subsequently developing pain in his left knee. This pain was located over the posteromedial aspect of the knee and continued such that he notified his supervisor who recommended he be seen on site at Virgin Australia Care. Following review, he was recommended to cease work and rest. Mr Piggin stated that he drove his manual car home, albeit with difficulty, and upon arrival applied ice to the knee as it had become swollen. He also rested his knee and took some analgesic medication to help with the pain.

Overnight, he had increasing pain and swelling of his left knee, which led to him seeing his local medical officer, Dr Nyi Swe, who arranged an x-ray and an ultrasound of that knee. Subsequently, Dr Swe recommended that Mr Piggin be provided with crutches, and continue his time off work. He continued to take his analgesic and anti-inflammatory medication to manage his pain. Because of ongoing symptoms, Dr Swe arranged both a CT and MRI scan of Mr Piggin's left knee which led to a referral to Dr Amanda Reilly, Orthopaedic Surgeon, who saw Mr Piggin on 30 August 2022. At that review, Dr Reilly believed that Mr Piggin had aggravated pre-existing arthritis in his left knee, recommending he commence physiotherapy and continue with his analgesic and anti-inflammatory medication. Mr Piggin did trial a return to work on light duties for an approximate four-week period after his injury but, because of ongoing pain and swelling in his left knee, ceased that return to work programme.

Mr Piggin states that he has constant posteromedial knee pain, with it at its maximum being 9/10 on a visual analogue scale and 1/10 at best. Mr Piggin states that his knee gives way approximately twice a month and that he gets an intermittent non-painful click in his knee with activity causing swelling of his knee. Mr Piggin feels that he has lost movement in the knee and has noted no locking of the knee. Mr Piggin states that he can stand comfortably in one position for approximately 10 minutes before he needs to change position to relieve exacerbations of pain in his left knee. Mr Piggin can sit for 90 minutes and lie for an unlimited period of time. He states that he can walk approximately one kilometre, without the use of a stick, before pain in his left knee causes him to rest. Mr Piggin uses a handrail when going up and down stairs and avoids squatting and kneeling. Mr Piggin avoids running. He has a comfortable lifting weight of approximately five kilograms due to exacerbation of pain in his left knee.

Mr Piggin gives a past history of a work injury to his right knee in 2015, where a piece of luggage directly impacted his knee, with him being diagnosed with an aggravation of pre-existing arthritis in that right knee as a consequence.

Mr Piggin sustained a soft tissue injury to his left knee which likely caused tearing to the posterior horn of his medial meniscus which has caused an aggravation of pre-existing asymptomatic osteoarthritis in that knee.

Mr John Piggin gives a clinical history of a significant injury to his left knee which occurred in a work event dated 12 July 2022. Mr Piggin required time off work, analgesic and anti-inflammatory medication, physiotherapy and multiple investigations prior to a review by Dr Amanda Reilly, Orthopaedic Surgeon, who believed he was likely to require a knee replacement into the future. Dr Reilly has referred Mr Piggin to the Redcliffe Hospital for consideration for that surgery. Mr Piggin continues to get ongoing pain and swelling in his left knee which requires him to continue with analgesic and anti-inflammatory medication, as well as a home exercise programme.

2. Your diagnosis of our client's present medical condition/s;

Mr Piggin sustained a soft tissue injury to his left knee which likely caused tearing to the posterior horn of his medial meniscus which has caused an aggravation of pre-existing asymptomatic osteoarthritis in that knee.

3. Whether on the balance of probabilities our client sustained an injury in the course of their employment with Virgin Airlines Australia. Under the SRC Act an injury includes an aggravation, recurrence or acceleration of a pre-existing injury.

The nature of Mr Piggin's left knee injury, on the balance of probabilities, has led to both an aggravation and an acceleration of pre-existing osteoarthritis in that left knee. On the balance of probabilities, the new tearing of his medial meniscus to that left knee has increased the stresses within its medial compartment, causing him to become symptomatic and accelerating degeneration within that knee.

4. Whether our client's employment was a significant contributing factor to the onset of any injury, disease or condition you have diagnosed;

As per my answer to Question 3, I would consider the work injury, dated 12 July 2022, was a significant contributing factor to his knee arthritis becoming symptomatic, with the aggravation continuing until the present.

5. Whether our client presently continues to suffer from a condition or disease which arose in the course of employment, or which was significantly contributed to by their employment with Virgin Airlines Australia.

Mr Piggin currently suffers from an aggravation of pre-existing asymptomatic arthritis, which was significantly contributed to by his employment with Virgin Airlines Australia, given the nature of that work injury and the subsequent clinical course.

6. Your estimate of our client's present and future capacity for employment and whether our client is fit for the full range of normal employment duties. If not, please indicate the restrictions for former employment which apply.

Mr Piggin was working as a Baggage Handler prior to his work injury. Mr Piggin has not been able to return to that work given its work requirements and his ongoing pain and loss of function in his left knee. At this point in time, Mr Piggin is suited to part-time sedentary work, avoiding prolonged walking, prolonged standing, walking on uneven ground, and ascending and descending ladders and stairs. He should also avoid squatting and kneeling with that work. He has a current lifting restriction of five kilograms to prevent exacerbations of pain in his left knee. Mr Piggin's previous employment has involved significant manual work, with him currently not suited to return to those types of work activities. Mr Piggin would likely require retraining to participate in the recommended sedentary-type work activities. Mr Piggin would be at significant disadvantage on the open employment market upon disclosure of his injury. Mr Piggin would likely require a sympathetic employer, given the nature of his work injury.

7. Whether our client reasonably requires medical treatment in relation to any condition that you have diagnosed. If so, please describe the nature, type, frequency and cost of such treatment.

In the shorter term, Mr Piggin may benefit from one or two injections of local anaesthetic and Celestone or of visco supplementation into his left knee, the costs of which would equal $1,500 each in today's terms. Mr Piggin is likely to benefit from ongoing physiotherapy on a fortnightly basis to manage his ongoing pain and loss of function into the foreseeable future. Those costs could be obtained from the relevant providers.

Mr Piggin, in the long-term, is likely to require knee replacement surgery within the next two years, with the costs for that surgery, inclusive of surgeon, assistant and anaesthetic fees, theatre fees, hospitalisation, implants and postoperative physiotherapy being equal to $30,000 in today's terms. Mr Piggin would likely require three months off work subsequent to this surgery, returning on lighter alternative duties for the following three months.

As mentioned in Question 7, Mr Piggin is likely to benefit from a left total knee replacement. With that knee replacement, he is likely to have a significant improvement in his function and have less pain. This would make him more likely to be able to return to his pre-injury employment, although likely initially on a part-time basis. Without that surgery, Mr Piggin is likely to have ongoing pain and loss of function, limiting his activity, with a poor prognosis.

9. Please also provide any other comments or additional information that you feel are relevant to our client in this claim.

In an ultrasound report, dated 14 July 2022, Mr Piggin was diagnosed with enthesopathy of the quadriceps tendon to his left knee. Based on his history, physical examination and subsequent investigations, his work injury was likely to be a soft tissue one causing tearing of his medial meniscus which led to an aggravation of his pre-existing asymptomatic osteoarthritis in that knee. I am of the opinion that the enthesopathy identified at that ultrasound was unrelated to his work injury.

● Mr John Piggin sustained an injury to his left knee whilst at work on 12 July 2022.

● Mr Piggin sustained tearing to his medial meniscus with that injury which then led to an aggravation of pre-existing asymptomatic arthritis in that knee.

● The work injury both aggravated and accelerated the arthritis in his left knee.

● Mr Piggin required specialist review and has recently been recommended to have a knee replacement for his ongoing pain and loss of function.

● Mr Piggin may benefit from future injections of steroid into that knee and/or viscosupplementation of that knee.

● Mr Piggin is likely to benefit from ongoing physiotherapy.

● Mr Piggin is currently not suited to his pre-injury occupation.

● Mr Piggin is likely to require knee replacement surgery to his left knee.

● The injury has had a significant impact on some of his household duties, his work and his recreational pursuits.

1. Associate Professor Nielsen in his oral evidence was asked:[32]

Q. For the time being I want you to ignore the history that he twisted his knee...given what you knew about the applicant's knee, what would you say about that sort of action - his left knee, sorry - what would you say about that sort of action?

A. So the first thing I would say is that I would anticipate that moving a luggage barrow around would require a significant amount of force. I would say that placing his knee in a flexed position to do that, leads to increase of stresses going through his knee. And I don't know whether you want me to comment about him developing pain in his knee, but he then developed immediate pain in his knee. So not including the twisting nature of the force - the forces that may have gone through his knee, that is a significant amount of force that would be going through an individual's knee, to perform that activity. And the other issue I'd probably make is that it's possible that at that particular time the actual - there may have been an awkward nature to manipulate that luggage port around because it's - or luggage barrow around - because obviously every particular activity that you might do is associated with potentially unique forces that might go through your knee. So, I mean, obviously, we haven't expanded, in relation to a potential twisting motion either, but certainly, those forces that went through his knee would be significant impact load to his knee. And specifically, most likely to be inside of his knee.

Q. So what did you make of your review of the x-ray?

A. That x-ray demonstrated some mild, medial joints-based narrowing of his knee. But really, reported to demonstrate a fairly normal knee, apart from what I consider was a red herring in relation to his injury, which was the enthesopathy...I was surprised with that initial x-ray that it really didn't demonstrate much in the way of arthritic change in the knee.

Q. He subsequently has an MRI scan on 19 August 2022. What do the conclusions, in respect to the MRI tell you?

A. Mr Piggin had a complex tear to his medial meniscus. Predominately affecting the posterior horn of that medial meniscus, and that had components that were horizontal and vertical and there was evidence of degeneration, that's age related changes in the meniscus which occurs over time, normally in people, which you might expect, in this age group.

Q. So when it's described as a 'complex tear', could you perhaps explain that in greater detail, what would mean?

A. Yes, so this particular individual has basically crushed, under load, his medial meniscus. There were age related changes in the medial meniscus, and what happens is it's a bit like, I suppose, you've got an egg that's not boiled and you crush it...It's sort of, like the meniscus no longer has its normal structure and so it gets crushed and it also it tears, and it tears in a number of planes. The most worrying plane is when it tears in a vertical plane, especially where when it's close to the posterior root of that meniscus. Because what happens is it essentially works as a - it defunctions that meniscus, in that it no longer has the capacity to absorb the transfer of weight as it usually does.

Q. Can you make a comment about those symptoms that he was suffering?

A. ...the non-painful click is consistent with the development or the fact that his meniscus has been torn.

Q. Now, I take you to your answer...'On the balance of probabilities it's led to both an aggravation and an acceleration of pre-existing osteoarthritis in the left knee?

A. ...So it would be reasonable to accept that there were some arthritic changes to his knees at that time, but it's well documented in the literature that a posterior root tear to the medial meniscus, which I believe this man had at the time of the injury defunctions the medial meniscus...and any pre-existing arthritis in the knee is accelerated quite significantly...His left knee went from essentially having a minor loss of joint space to a complete loss of joint space over a 12 month period, or from that July (2022) to that September (2023).

1. During cross examination by Mr Clark, associate professor Nielsen answered questions relevantly as follows:[33]

Q. On 19 August 2022, you deal with the MRI scan of the left knee...about what, five weeks after the subject incident. You agree with that?

Q. And you mentioned in your comment that there was some bone marrow oedema involving the interior medial tibia platter, is that so?

Q. Now the actual MRI report doesn't make any reference to bone marrow oedema, does it?

A. As I said, I reviewed that and so that's my comment that I made in relation to it. Often the radiologists don't report everything that we deem relevant to the investigation.

Q. And you can see that that's relevant, is that so?

A. That's relevant to increased stresses going through the inside of the knee as a consequence of the defunctioning of the meniscus. That's the relevance I put to that.

Q. And you'd agree with me that it's a legitimate exercise to assess what happening with the other joint in reaching conclusions about what's going on with the subject joint?

A. I think that you can use the other joint as a historical comparison to the one that you're examining, recognising that 50 per cent of people only have arthritis one side of their - one of their sides...So it's not necessarily that both joints have exactly the same progression of arthritis over time as compared to each other.

Q. Your report was silent on anything less than twisting...a twisting action which formed an important plank in the formulation of your opinion. Do you accept that?

A. No, I don't accept that because as the article I've described, it doesn't have to be a twisting motion to cause a tear to the posterior medial meniscus...But a direct flexion force on the knee can cause exactly the tear he had without a twist. That's the point I would make. It's just a classic injury. People just squat down, and they tear their posterior horn of their medial meniscus.

Q. Just in respect of this presence of oedema, you'd agree with me that's an important piece of information in support of your opinion. When you look at the films, the oedema is at the front of the knee. Do you agree with that?

Q. It's nowhere near any tearing of the posterior horn of the meniscus, is it?

Q. And if there'd been acute trauma, an acute tearing of the posterior horn, you'd have expected to find an oedema close-by the time that the MRI's taken. On what the 18 August 2022. Do you accept that?

A. So an injury that we have - that I believe Mr Piggin had, has torn his medial meniscus at the back. The response to that is some inflammation around where the tear is. And that inflammation will settle over time. Bone marrow oedema reflects increased weight bearing through the knee. And it can happen in any part of the knee - any part of the medial compartment of the knee. And what I'm suggesting is his meniscus has been defunctioned. He is now no longer bending his knee. He's tending to walk with this knee straight. He's loading the front of his knee. He now has a non-functioning meniscus. It's no longer acting as a shock absorber and it's developing pain as a consequence of loading the front of his knee which is entirely consistent with his injury and MRI scan being performed five weeks following his injury.

Q. Doctor, do you accept the proposition as Dr Shooter points out if there'd been an acute injury you'd expect to have the presence of bone oedema in close proximity to where that the tear of the posterior horn was?

A. No I don't accept that. I respect his report, but I point out that the inflammation would happen in relation to the meniscus where the injury was originally but then the likely location of the increased stresses would be through the anterior aspect of his knee.

Q. The horizontal tear component through the posterior horn which extended to both femoral and tibial articular surfaces. Did that occur in the incident?

A. It could occur before or after, but again the mechanism of the injury which is crushing his meniscus is likely to cause or extend a horizontal tear that may or may not be present prior to the injury.

Q. Dr Shooter says...'I find it extremely unlikely that such a tear could have caused full thickness cartilage loss to the developed in a five week period'. What would you say to that?

A. He said extremely unlikely. I think it's possible that you could even obtain full thickness cartilage loss in your knee as a consequence of the altered weight bearing that happened as a consequence of his injury bearing in mind this is five weeks following the injury. I accept that there may have been some pre-existing articular cartilage loss because I have accepted that he had pre-existing mild arthritis in his knee which is often consistent with areas of cartilage loss as well.

Q. So I take it from what you have said today, you are diagnosing this man with a meniscal root tear?

A. I am diagnosing him with the equivalent of meniscal root tear, in the sense that he had a crush injury to the posterior wall of his medial meniscus, he had a vertical tear of his medial meniscus in close proximity to the root.

1. Dr Robert Shooter provided a written report dated 4 September 2023 that relevantly provides:[34]

In summary this shows tricompartmental arthritis involving both compartments with osteophyte formation. There are complex tears of both menisci with some extrusion of the fragments. I note the clinical history given also notes marked quads wasting.

This shows some mild progression of the arthritis from the previous MRI but no progression of the meniscal tears.

This shows a low-grade sprain to the medial collateral ligament. There is a complex tear through the medial meniscus with some subluxation of the body and what is probably a small horizontal tear of the lateral meniscus. There is some moderate chondromalacia patellae and large full-thickness cartilage defects on both medial and lateral compartments with areas of bare bone. This could be characterised as moderately severe arthritis.

While performing a loaded activity on 12 July 2022 Mr Piggin has developed pain in his left popliteal fossa. Given the MRI findings which are degenerate in nature he may well have sustained a ruptured Baker's cyst which itself would be constitutional; or may potentially had a low grade strain of the medial collateral ligament given the MRI findings; but I would agree with Prof Stenman and Dr Reilly it is more likely than not the majority of his diagnosis would be exacerbation of a pre-existing left knee arthritis.

In the normal state of affairs, it would be reasonable to allow such an exacerbation to run for between six weeks and three months with symptoms beyond this point being the natural history of the pre-existing condition. As such Mr Higgins' ongoing symptoms in his left knee would be the result of the natural history of his long-standing severe degenerative knee arthritis (which should be considered to include the medial meniscal tear and quadriceps enthesopathy) with any potentially work-related exacerbation having ceased by mid-October 2022, giving him the benefit of the doubt. While innervation of the knee joint per se is not analogous to skin innervation, generally speaking if someone sustained an acute tear of the medial meniscus or medial collateral ligament, I would expect them to mostly complain of medial joint line pain. Likewise, if a person was symptomatic due to quadriceps enthesopathy, I would usually expect them to complain of pain in the anterior distal thigh, or related to the patella (knee cap). I would not expect this hypothetical person to complaining of posterior knee joint pain after a lifting event.

1. What history does Mr Piggin provide in respect of his left knee?

The history is as noted in the body of report, but he was performing his normal duties in his standard fashion on the 12th July 2022 when he had a sudden onset of pain in the popliteal fossa of his left knee.

2. What symptoms does Mr Piggin currently claim to experience as a result of his left knee?

Mr Piggin complains of ongoing severe pain in his left knee but has no mechanical symptoms such as locking or giving way. He describes the pain now as being almost globally around the knee. He states that when it first started it was definitely in the popliteal fossa and then after a week or so began to radiate to the medial aspect of the knee. He specifically denies any pain in the posterior thigh, and I would point out that the quadriceps tendon is in the anterior part of the leg above the knee joint and is not actually where Mr Piggin has ever claimed pain.

3. Please take a history from Mr Piggin regarding his social and working history. Specifically, we understand Mr Piggin played soccer for about fifteen years and worked as a concreter for about 30 years.

Mr Piggin has worked as a baggage handler for Virgin for approximately 10 years and prior to this has worked for more than 30 years as both a concreter and a spray painter. He did play soccer at school and in to his mid 20's at a "high level", and also participated in martial arts for a number of years; but cannot recall any specific injuries or accidents as a result of any of these activities.

7. Prior to the condition the subject of this claim, and on the balance of probabilities, was Mr Piggin suffering from an identifiable medical condition affecting his left knee? If so, what is your diagnosis of that condition and how have you reached that opinion?

It is more likely than not that Mr Piggin was suffering from an asymptomatic at the time, identifiable condition affecting his left knee which would be bilateral chronic meniscal tears and tricompartmental moderately severe arthritis. I voice this opinion based on my examination of him in 2018 and today, as well as reviewing the available radiology.

8. Has Mr Piggin suffer an aggravation of any underlying condition you diagnosed in response to question 7? If so, what is your diagnosis of that aggravation?

In my opinion Mr Piggin is suffering from the natural history of his underlying condition. It would be reasonable to state that he may have been suffering a work-related exacerbation of this condition from 12 July 2022 until likely mid-October 2022, with any symptoms beyond that point being the natural history of his underlying condition.

9. In your report of 14 March 2018, you stated 'Mr Piggin's condition is that of bilateral degenerative meniscal tears with medial and femoral compartment osteoarthritis and with patches of Grade IV change as well as retropatellar arthritis'. Do you maintain this opinion? Why or why not?

The report in 2018 was with respect to his right knee; no new information regarding the right knee has been presented so there is no reason to change this opinion.

10. In your report of 14 March 2018, you stated that whilst Mr Piggin did not have pain in his left knee, you suspected if an MRI scan was taken of his left knee it would 'look somewhat similar to his right knee'. Could you please explain why you considered that might be the case?

The injury that Mr Piggin had sustained to his right knee in 2015 was a glancing blow to the kneecap (as per Mr Piggin when I examined him in 2018); with Mr Piggin was performing his normal duties at the time of that review. This type of injury would not explain the advanced degenerative findings within his right knee; generally speaking degenerative changes could be expected to be systemic and he had similar physical appearances to both knees at the time of examination.

11. In the report of A/Prof. Nielsen dated 2 August 2023, he diagnoses Mr Piggin with a 'soft tissue injury to his left knee which likely caused tearing to the posterior horn of his medial meniscus'. We understand that Mr Piggin since about 2018 has suffered a medial meniscus tear to his right knee (see MRIs dated 29 January 2018 and 14 April 2019):

11.1 Do you agree with the opinion of A/Prof. Nielsen? Why or why not?

Firstly, the radiological evidence regarding the right knee clearly shows the bilateral meniscal tears pre-date the MRI of 2018. Secondly, I disagree with the opinion of Dr Nelson that the medial meniscal tear is acute; and if it is acute, I do not believe it is the cause of his ongoing left knee issues. At the time of the MRI of the left knee, taken only five weeks after the injury, there are areas of full-thickness cartilage loss (GIV arthritis; bare bone) on the medial and lateral compartment, as well as moderate retropatellar change. While it is possible (but in my opinion less likely than not) that Mr Piggin may have sustained an acute on chronic tear of his medial meniscus, I find it extremely unlikely that such a tear could have caused full-thickness cartilage loss to have developed in a five week period, particularly as the MRI did not show any loose bodies in the knee, nor did Mr Piggin have any mechanical symptoms such as locking or giving way.

I would thus find it extremely unlikely that even if the vertical tear of the medial meniscus did occur on 12 July 2022, that it could have worsened his knee to the point of him being out of the workplace since mid October 2022 and now requiring a total knee replacement. Generally speaking, horizontal meniscal tears can be considered to be degenerative, whereas vertical tears are felt to be acute. It takes a fair amount of force to tear a previously normal meniscus and there is normally a large effusion within the knee, with reciprocal bone oedema visible on MRI of both the medial and femoral sides of the joint in the approximate region of the meniscal tear. This is usually visible on MRI for up to three months after injury. In this case, the radiologists refer to the medial meniscal tear as "complex", with horizontal and vertical components; this type of description is usually applied to chronic tears; and there is no reciprocal femoral or tibial bone oedema in the region of the tear. Once arthritis develops, the chemistry in the knee changes, making the meniscus "brittle", and amenable to damage or tearing from normal levels of use. We almost invariably see meniscal damage of varying degrees accompanying arthritis, even when there has been no injury of any kind, and is why the current accepted standards of practice are becoming not to perform surgery for meniscal tears in the presence of arthritis and the absence of mechanical symptoms and a specific injury.

In summary, Dr Nielson's theory is possible, and with the current state of radiological imaging cannot be disproved. In my opinion however, I find this theory unlikely; and completely disagree that if the vertical component of the meniscal tear did occur on 12 July 2022, that it has any relationship to the current level of symptoms experienced by Mr Piggin (Dr Nielson's report includes a statement in the summary that the "soft tissue injury" aggravated and accelerated the pre-existing arthritis). Knee replacements are performed for pain relief from arthritis, usually assumed to be areas of full-thickness cartilage loss, not meniscal tears.

11.2 Does Mr Piggin's MRIs of 29 January 2018 and 14 April 2019 provide any insight to Mr Piggin's left knee? If so, what?

In my opinion, yes. With respect to the MRIs of his right knee, given that no specific injury of any substance occurred to cause this damage I would state that they are consistent with a systemic degenerate process and could be considered predictors of the state of his left knee even if it was asymptomatic

12. In the report of Dr Reilly dated 30 August 2022, she stated 'His MRI shows a degenerative medial meniscal tear which is extruded, bone oedema from excess loading and an absence of medial tibial cartilage'.

12.1 Could you please explain what is a degenerative medial meniscal tear?

A degenerate meniscal tear means a meniscus that is torn with normal use as opposed to the result of a specific injury. Broadly speaking in layman's terms, once a knee joint begins to develop arthritis the chemistry somewhat changes making the menisci brittle and it is possible for them to tear with normal use. Generally speaking traumatic tears tend to be vertically oriented and there will usually be reciprocal bone bruising in the femur and tibia in the zone of the tear that is often present on an MRI for up to 3 months after injury. Degenerative tears tend to be horizontal in nature and there tends not to be reciprocal bone bruising or much of an effusion within the knee. The latter description could be applied to the MRI of Mr Piggin's left knee.

12.2 Do you agree with the opinion of Dr Reilly? Why or why not?

LIABILITY Please note 'significant degree' means a degree that is substantially more than material.

13. Has the condition(s) which you diagnosed in response to question 8 been caused, contributed or aggravated by Mr Piggin's employment with Virgin to a significant degree?

It would be reasonable to accept that Mr Piggin may have exacerbated pre-existing left knee arthritis during the normal performance of his normal duties on 12 July 2022.

Giving him the benefit of the doubt it would be reasonable to accept that such an exacerbation could run for a three month period, with symptoms beyond that point being the natural history of this condition.

14. If so, does Mr Piggin's employment with Virgin cause, contribute to, or aggravate the diagnosed condition(s) to a significant degree? 14.1 If not, when did these employment factors cease to cause or contribute to the diagnosed condition(s) to a significant degree? 14.2 If so, when do you consider those factors will cease to cause or contribute to the diagnosed condition(s) to a significant degree?

Mr Piggin has not been at work since it least mid-October 2022 and I would thus state there was no ongoing contribution from his employment. That could be considered to have been ceased from mid-October 2022.

15. Please consider any condition(s) affecting Mr Piggin's right knee. Does any condition affecting Mr Piggin's right knee assist your understanding in any condition (if any) affecting Mr Piggin's left knee? If so, what understanding or importance, does it provide to you.

As I have previously noted the findings in Mr Piggin's right knee dating back to 2018 could predict the condition of his left knee given at the time I examined him he had similar physical findings. However I accept that it is entirely possible to have one knee that is severely degenerate and the other one not.

16. In Dr Steadman's report dated 13 October 2022, he considered that Mr Piggin had 'suffered from a minor aggravation of a pre-existing degenerative condition. The left knee has likely to have been deteriorating gradually in the background on the same basis as the right to the extent that the MRIs are remarkably similar between the knees and therefore represents a pre-existing condition'. Do you agree with this opinion? Why or why not?

I agree with the opinion of Dr Steadman in that Mr Piggin likely had preexisting asymptomatic disease in his left knee which became symptomatic after a minor activity at work.

17. Has the diagnosed condition(s) of Mr Piggin's left knee been caused, contributed to, or aggravated by any non-Virgin employment factors? 17.1 If so, please describe all those non-Virgin employment factors that have caused, contributed to, or aggravated the diagnosed condition(s)?

It is not possible to state whether previous employment has specifically caused problems with his left knee given he has not previously complained of left knee problems. With reference to the AMA Guides to the Evaluation of Disease and Injury Causation 2nd edition, the knee chapter does state that there is strong evidence behind repetitive bending, kneeling and prolonged heavy lifting as a later predictor for the need for a total knee replacement. This would seem to apply more to Mr Piggin's 30 plus years in the concreting industry, than his more recent employment as a baggage handler.

18. Has the condition which was contributed to by Mr Piggin's employment affecting his left knee, being the 'Enthesopathy of the quadricetps [sic] tendon' ceased and been superseded by another episode? If so, please specify the circumstances of the new episode.

Enthesopathy is a generic term meaning a disorder of the attachment of a tendon or ligament to bone. While I understand this is the diagnosis that has been given by his GP, this is effectively irrelevant and seems to have been based on imaging findings as opposed to what Mr Piggin as actually complaining of (this would concur with the reports of both Drs Steadman and Nielson). The quadriceps tendon is at the front of the knee just above the kneecap whereas Mr Piggin complained of popliteal fossa and medial pain. In my opinion the diagnosis all along was exacerbation of his left knee arthritis and the finding of enthesopathy is irrelevant.

19. Has Mr Piggin's 'Enthesopathy of the quadricepts [sic] tendon' been superseded by a different condition such as age degeneration, other diseases etc? If so, please provide your opinion on what factors contribute to this different condition.

In my opinion the diagnosis of enthesopathy by the patient's GP was incorrect as the cause of his pain and any reference to enthesopathy should be disregarded, as it was an incidental radiological finding. His problem was exacerbation of left knee arthritis.

20. Are there any aspects of clinical examination which indicate that Mr Piggin is:

20.2 Consciously guarding restriction of movement?

20.3 Displaying symptoms and examination findings inconsistent with claimed condition?

20.4 Demonstrating a range of movement during your observation which was not replicated during clinical examination?

Mr Piggin showed no episodes of guarding or voluntarily exaggerating his symptoms and was not inconsistent in his displaying of symptoms and signs, nor was he displaying an abnormal range of motion.

22. What medical treatment is Mr Piggin currently undertaking with respect to his diagnosed condition(s)?

There is no specific treatment he can be offered other than total knee replacements and he is apparently on a waiting list for a public hospital.

23. What medical, surgical or conservative treatment do you consider Mr Piggin reasonably requires in respect of the diagnosed condition(s)?

Mr Piggin at some stage will require bilateral total knee replacements and is on a waiting list of a public hospital. I do not consider this to be for a work-related condition.

24. What effects to you expect the recommended treatment will have on the diagnosed condition(s)?

Total knee replacements should improve his pain, but generally speaking I would not expect arthroplasty to allow a manual worker to return the manual work.

25. Are those medical treatments you have recommended (if any), reasonably required as a result of Mr Piggin's 'Enthesopathy of the quadricepts [sic] tendon'?

The diagnosis of enthesopathy is irrelevant to his symptoms and condition; neither Drs Reilly, Steadman, Nielson or myself believe it is of any relevance. Its inclusion was an error by the GP who issued the medical certificate, based purely on the original ultrasound report, as opposed to what Mr Piggin's actual symptoms were. The proposed treatment (bilateral total knee replacements) is for his severe bilateral knee arthritis, which is not a work-related condition in the current claim.

27. Is Mr Piggin incapacitated for employment as a result of the diagnosed condition(s)? 27.1 If so, is this a partial or total incapacity? 27.2 If so, for what period was Mr Piggin partially or totally incapacitated?

In my opinion Mr Piggin is incapacitated as the result of his left knee preexisting arthritis. Often patients will be asymptomatic for a period of time and then their symptoms will wax and wane. Given that Mr Piggin has had no significant improvement since July 2022 to current date and if anything seems to be getting worse, I would state that this incapacity will be permanent. He has not been at work since mid-October 2022 and could have been considered totally incapacitated with respect to his normal duties from this date.

28. What is Mr Piggin's current capacity for employment?

Mr Piggin could probably perform sedentary or seated duties, but he has never done this before and has no specific training. He has only ever performed manual type duties.

29. What employment duties is Mr Piggin currently suited to perform?

Mr Piggin could potentially perform seated or sedentary work but has no history of doing the same.

30. How many hours per week can Mr Piggin perform the above duties?

Currently this would need to be assessed with an occupational therapist performing a workplace assessment once a job that he potentially could do could be identified.

31. Are there any non-Virgin employment factors that affect his capacity for employment?

I am unaware of any other relevant employment factors.

32. Are there any other relevant matters on which you would like to comment? If so, please do.

While I understand his GP has diagnosed him with enthesopathy of the quadriceps tendon, this is not the condition which is causing his symptoms and should be considered an incidental radiological finding which is irrelevant to his current situation and any treatment moving forward.

1. Dr Shooter in his oral evidence was asked:[35]

Q. Now, you say there that those tears appear to be quite old. What led you that conclusion?

A. ...For someone who's had a non-acute tear, all you see is the tear, you tend not to see any bone oedema, you tend not to see an effusion, so a collection of fluid (indistinct) the knee.

Q. You make this comment, you say "While Mr Piggin does not have pain in is left knee (2018), I suspect that a MRI scan of that knee may look somewhat similar to his right knee'. Now, what prompted you to make that observation?

A. Because if you read through the rest of the body of the report, when I examined his right knee it was all but identical to the left, in terms of range of motion...playing high level soccer for - into his early 20s and having been a concreter for 30-odd years beforehand, it would be reasonable to make an assumption that there might be a similar degree of damage on the left, which is also asymptomatic at the time.

Q. And we've already discussed tears - how old do you say those particular findings would be?

A. Yes, so based on the actual appearance of the MRI which I have open in front of me now, I would say, given that there is no reciprocal bone oedema on either the femur or the tibia in the zone where the actual tear is, we would have to say that they are at least three months old. Now there is a zone of bone oedema on the anteromedial tibia which is mentioned in the report...In my opinion, it is not related to the meniscal tear, given that there is no bone oedema in the femur or the tibia in the zone of the actual meniscal tear itself. The other thing to consider is that again, generally speaking, horizontal meniscal tears are thought to be degenerate, vertical meniscal tears are sometimes thought to be acute.

Q. Now, you go on to say 'Whilst it is possible but in my opinion less likely that there was an acute chronic tear of the medial meniscus', you say that 'such a tear could've caused full thickness cartilage loss in a five week period'?

A. ...So there is no information to support the contention that someone could develop severe arthritis in a five-week period after an acute nonchronic meniscal tear even if there was a root tear...You know the report talks about a zone of high signal intensity approaching the root. It does not actually say there is a root tear present, and all of the research articles are very clear. They don't talk about partial tears or incomplete tears. They talk about complete evulsions. So the attached is ripped off the bone, or a complete tear within 9 mm of the attachment, and that's - based on the MRI from 2022 it's not what's happened with this gentleman.

Q. Is there anything in that article which in any way throws any light on the issues that have to be resolved in this case?

A. It probably just doesn't apply. ...It's a review article of a whole bunch of other articles that have already been published. It's not any new research or anything like that...The context of this particular article is basically looking at younger people who've had a sporting injury and the meniscal root tear has been missed for whatever reason, and then five or six years down the track they're suddenly needing a knee replacement they otherwise wouldn't have needed.

1. During cross examination by Mr Seymour, Dr Shooter answered questions relevantly as follows:[36]

Q. So let me put this to you, Doctor: on all of the evidence we've got, Mr Piggin has an asymptomatic left knee. He performs a task at work which you describe as his standard fashion of manoeuvring a baggage barrow and then complains of pain his left knee thereafter. So are you saying that on that history, there's no injury to the applicant?

A. I'm saying that on the history that you have just provided, you've described how the vast majority of people with knee arthritis present to their GP and their surgeon...He's developed pain, the pain is a symptom. The condition that he has is arthritis...So you would need to see increased bone oedema somewhere other than his point of arthritis...What has happened is that he has experienced the natural history of a constitutional condition, which has unfolded in his workplace. It hasn't been caused by his workplace.

Q. So if the meniscus isn't normal, and it's a low energy tear, would you expect to find oedema?

A. No. You might not. As I've already said, it's possible that it's occurred in that fashion without being a high energy injury and without causing bone oedema in the tibia. But if that is the case, then it's more likely than not again, this is just the natural history of a degenerative meniscus that just happens to have occurred at work. It can be both.

Professor Peter Steadman - Consultant Orthopaedic Surgeon

1. Professor Peter Steadman provided a report, dated 13 October 2022, that relevantly states:[37]

He reports that his injury was on 12.07.2022. He says that he was at the bottom at the back of the aircraft. He said they were loading baggage onto the plane, and he describes that the tractor had brought the barrow up. The first barrow was empty but the second one had about ten bags on it. He says that he has a technique for pulling on the barrow where he braces himself and then pulls with slightly flexed knees and back and then pulls with his lats. He said he pulled then felt a sudden pain in his left knee. He said that he reported it with the leading hand because it was sore, and he tried to do it again but it was painful.

Mr John Piggins suffers from bilateral knee arthritis. This is shown on the MRI and it is likely that he suffered from a minor aggravation of a progressively declining knee problem. He appears to suffer from some significant medical and orthopaedic comorbidities. He is on Palexia for a chronic sore back. He is waiting for a right knee replacement, which makes it difficult to understand why he has been able to do such a heavy physical job during which he reportedly hurt his left knee pulling on a barrow.

1. Please outline the history of Mr Piggin condition as reported to you.

He reports pulling on a barrow. He told me that he had a special technique to do this and when he pulled on it, he got pain in the left knee.

2. From what specific condition/s does Mr Piggin currently suffer? Please provide a short description of the condition including its known aetiology and progression? (please include clinical signs and symptoms to support your conclusions).

The diagnosis of the knee is osteoarthritis. As noted, there are significant similarities between the right and left knee MRIs that both show complex meniscal tears and degenerative change. The right knee already receiving treatment and potentially being booked for total knee replacement.

3. On the balance of probabilities as distinct from possibilities, what is the condition currently suffered by Mr Piggin in relation to:

a. Employment with Virgin Australia, if so, please describe the employment factors that contributed to the onset of the claimed condition and advise if the condition is temporary or permanent in nature.

b. A pre-existing, congenital, constitutionally or underlying condition,

c. The natural progression of an underlying condition,

d. An aggravation, acceleration or recurrence of a pre-existing condition and if so have the effects of the aggravation, acceleration or recurrence ceased. If not ceased, when do you consider the effects would cease?

e. Factors unrelated to work? If so, please give details.

On the balance of probabilities, he has suffered from a minor aggravation of a pre-existing degenerative condition. The left knee has likely to have been deteriorating gradually in the background on the same basis as the right to the extent that the MRIs are remarkably similar between the knees and therefore represents a pre-existing condition. On the day of the injury, I do not think he developed an enthesopathy because he has got no clinical signs of that but he developed likely aggravation of medial compartment arthritis.

4. Are any aspects of your clinical examination tend to suggest that Mr Piggin is:

b. displaying symptoms and examination findings inconsistent with claimed condition,

There were no other signs, but he certainly was quite guarded.

5. Mr Piggin is currently not working. Do you consider he has a capacity to engage in work at the same level at which he was engaged by Virgin Australia Airlines Pty Ltd immediately before the injury? If not, can you please provide comment as to the reason and outline your opinion of Mr Piggin current capacity for work.

He is not currently working but reports he has been given permission yesterday to return to work to different duties lighter duties.

6. If Mr Piggin is unable to perform his preinjury duties, please identify details of any ongoing work restrictions and when it is likely he will be able to return to preinjury duties?

I doubt that with all of his health comorbidities he would be able to return to preinjury employment.

7. Are there any other factors causing incapacity for work or work restrictions? If so, please provide details.

In my opinion the osteoarthritis is likely affecting him.

8. Mr Piggin is undertaking Exercise Physiology at present. Do you consider EP to be beneficial? If so, how many sessions do you consider is reasonable and detail the reasons, frequency and duration.

It is unlikely that significant exercise will alter the outcome because the knee is arthritic. He should do exercise which can help avoid knee replacement, but it is unlikely to allow him to return to preinjury duties.

9. What other forms of treatment/s do you consider is beneficial for the claimant?

He likely requires bilateral knee replacements, but this is not for a work related condition.

10. Does the claimant require any further imaging investigations? If yes, please detail which is required and why?

He has been fully imaged in the left knee on QScan. He gave me permission to have a look and then I compared the scan of the right knee in 2019 with the current left one in forming this opinion regarding the current state of both knees which is relevant to nay (sic.) pre-existing disease considerations.

Prognosis is poor for full recovery, and I suspect in the next two years he will have both knees replaced for functional loss due to age related arthritis.

12. Are there any other comments you wish to add?

1. On 11 December 2023, Professor Steadman provided a further report, where he relevantly states:[38]

1. In your report dated 13 October 2022, you diagnosed the Applicant with 'from bilateral knee arthritis'. Do the materials enclosed in this brief change your opinion in relation to diagnosis, and if so, to what?

In the context of the above and the clinical information provided and review of the radiology my opinion expressed in this report has not changed.

2. If you are still of the view the Applicant's left knee symptoms are as a result of his pre-existing degenerative condition, why do you consider this is the case?

I am of the opinion that Mr Piggin's problem is bilateral knee degeneration. It would be my opinion that the meniscal pathology and the overall level of meniscal degeneration, is reflective of the same degenerative problem that leads to the loss of the articular cartilage surface of the tibiofemoral joints. In clinical practice we do not see advanced degeneration, with normal menisci in my opinion.

3. In the report of A/Prof. Nielsen dated 2 August 2023, he diagnoses Mr Piggin with a 'soft tissue injury to his left knee which likely caused tearing to the posterior horn of his medial meniscus'. We understand that Mr Piggin since about 2018 has suffered a medial meniscus tear to his right knee (see MRIs dated 29 January 2018 and 14 April 2019):

3.1 Do you agree with the opinion of A/Prof. Nielsen? Why or why not?

I disagree with the opinion of associate Prof Nielsen regarding conclusions either of the meniscal tear and/or the degeneration and/or the issues of acceleration. It is my opinion that the meniscal pathology is part of a broader picture of degeneration in the knee, and I would maintain the short period of exacerbation, versus any alteration to the long-term degenerative demise of the knees that represents a constitutional condition.

3.2 Does Mr Piggin's MRIs of 29 January 2018 and 14 April 2019 provide any insight to Mr Piggin's left knee? If so, what?

It confirms that he suffers from osteoarthritis or degeneration which is a combination of the wearing of the surface of the bone and an associated splitting and wearing and tearing of the menisci I inside the knee.

4. In the report of Dr Shooter dated 4 September 2023, he stated it was more likely than not that Mr Piggin at about 12 July 2022 was suffering and 'identifiable condition affecting his left knee which would be bilateral chronic meniscal tears and tricompartmental moderately severe arthritis'.

4.1 Do you agree with the opinion of Dr Shooter? Why or why not?

I have two reports of Dr Shooter dated 14.03.2018 and the second report dated 04.09.2023. In relation to the two reports, he notes much as I did that there was a knee injury with an exacerbation of pre-existing osteoarthritis and that exacerbation should have ceased by mid October 2022.

Please note 'significant degree' means a degree that is substantially more than material.

5. Has the condition(s) which you diagnosed in response to question 1 been caused, contributed or aggravated by Mr Piggin's employment with Virgin to a significant degree?

6. If so, does Mr Piggin's employment with Virgin continue to cause, contribute to, or aggravate the diagnosed condition(s) to a significant degree?

6.1 If not, when did these employment factors cease to cause or contribute to the diagnosed condition(s) to a significant degree?

6.2 If so, when do you consider those factors will cease to cause or contribute to the diagnosed condition(s) to a significant degree?

7. In your earlier report dated 13 October 2022, you considered that Mr Piggin had 'suffered from a minor aggravation of a pre-existing degenerative condition. The left knee has likely to have been deteriorating gradually in the background on the same basis as the right to the extent that the MRIs are remarkably similar between the knees and therefore represents a pre-existing condition'. Do the materials enclosed in this brief change your opinion on this issue? Please explain your reasons.

My opinion is unchanged and the documentation confirms he suffers from progressive advancing degeneration of both knees due to age and constitutional factors as a major contributing factor which is the normal pattern of arthritis in our society.

8. In his report dated 4 September 2023, Dr Shooter considered 'Mr Piggin is suffering from the natural history of his underlying condition. It would be reasonable to state that he may have been suffering a work-related exacerbation of this condition from 12 July 2022 until likely mid-October 2022, with any symptoms beyond that point being the natural history of his underlying condition'.

8.1 Do you agree with the opinion of Dr Shooter? Why or why not?

This is the same opinion I expressed in my report. I would agree with the timeframe. Attached is report from the ODG portal which is evidence-based assessment of the time to recovery from work-related injuries of certain and different medical conditions.

9. Has the diagnosed condition(s) of Mr Piggin's left knee been caused, contributed to, or aggravated by any non-Virgin employment factors?

As I have already expressed, he had a short term exacerbation, with the long-term condition a consequence of the underlying osteoarthritis.

9.1 If so, please describe all those non-Virgin employment factors that have caused, contributed to, or aggravated the diagnosed condition(s)?

This is evidenced by the long-term osteoarthritis condition which is evident in both knees along with his varus malalignment.

10. Do the materials enclosed in this brief cause you to change or comment further on

any of your opinions provided in your report of 13 October 2022.

Nothing I have been provided with changes my opinion; in particular the assertions of Associate Prof Nielsen do not change my opinion in regard to his conclusions.

11. Are there any other relevant matters on which you would like to comment? If so, please do.

To clarify on what is the difference between my opinion and A/Prof Nielsen is as follows: he thinks that on a background of degeneration that the meniscal pathology is unique and therefore the tearing has caused a long term exacerbation and alteration in the patient's condition. It would be my position, as evidence-based medicine would support, that the meniscal pathology is part and parcel of the advancing degeneration of the knee, and therefore the reported injury has only caused a short term exacerbation, consistent with what I reported in my original findings and conclusions.

The enthesopathy in my opinion is a clinical red herring and is not the cause of the complaint, which my impression is that all clinicians agree upon.

1. Professor Steadman in his oral evidence was asked:[39]

Q. Could you just, if you wouldn't mind, please, just explain how it comes to be that you disagree with Dr Nielsen's opinion please?

A. I understand his opinion is that there is a posterior horn tear of the medial meniscus, and that's a unique injury, and it's occurred in the context of his information, sort of more or less in isolation, and its led to a rapid demise of the leg...Whereas I believe that there's a broader picture of degeneration in the medial compartment, and the meniscus, which the best way to think of it is that it's a bit like a piece of crabmeat that has been chewed and spat out. It's macerated which is part of the degenerative picture...And the consequence of that it that it's called a degenerative tear. But complex means that the tear is going in all different directions.

1. During cross examination by Mr Seymour, Professor Steadman answered questions relevantly as follows:[40]

Q. You mentioned in your evidence, about the sort of forces that go through - when the applicant's performing that manoeuvre - the sort of forces that might be going through the knee?

A. As I said, the knee takes four times the bodyweight in terms of forces. So that's just with normal walking. So, yes, we can assume that if he's bracing himself as he describes and slightly - you know, knees slightly flexed or slightly crouched. Bends over - leaning backwards to try and get that - over that initial inertia, you know, I don't know an exact but I suspect that we could confidently say that it's eight or 10 times his bodyweight that would be going through.

Q. Given what we've discussed about the weight and the force he's got to exert to get it moving, I put it to you that would create more than a minor aggravation of a pre-existing degenerative condition?

A. No...because I've made the point to you that there were two contexts. One is Mr Piggin as a whole and then the second one is of the left knee. And so my description of the left knee findings are that he's had a minor aggravation. But in terms of the effect on his life, I believe that, as you rightly pointed out to me, it was more substantial.

Q. What we know about the applicant is he's got an asymptomatic left knee before 12 July 2022?

Q. And he's had pain thereafter...and the evidence is that that's ongoing?

Q. But I put it to you that given that scenario, he's still suffering the effects of what happened on 12 July 2022 - up to the knee replacement?

1. During re-examination by Mr Clarke, Professor Steadman answered questions relevantly as follows:[41]

Q. So we have to assess your last answer in that context?

A. ...It's about fractions of fractions, and that it is a common expression I use to explain to patients sometimes difficult situations. But I - my opinion I think is clear, that I believed that there was substantial pre-existing pathology on the inner aspect of the left knee, and that has been exacerbated or aggravated for a period of time. But to take Mr Seymour's question at face value, he said to me, you know, 'Is there evidence that he's continued to have symptoms since that point, to the point that he's now had the knee replacement?' All I can answer is that is, 'Yes, that would appear to be the situation, taking into account that I've only seen him on one occasion.

Q. You've given evidence as well, it's in your reports, that any effects, in your opinion, from the incident of 12 July would have been a minor aggravation for potentially a temporary period of time, but there is what is called a resumption of the progress of the underlying constitutional condition thereafter. Is that so?

A. Yes, I - this is how I would best describe the situation. So if we drew a graph and the graph had a line which was gently declining, then along that line there is a spike, and the spike represent the exacerbation before the spike goes back down to the same downward continuum...And that, as I say, is my evidence really is that there - I've made a diagnosis, I've considered the mechanism, and, you know, done the clinical examination. And I've provided a framework for which I believe, based upon that history and the bilaterality of the disease, that his knee has been aggravated for a period of time, after which the curve joins back to the normal part of the deterioration, and that's you know, a combination of things. The radiological deterioration - but the clinical history is undeniable. The clinical history, that he's continued t have pain that he's reportedly, as Mr Seymour just confirmed for me, that he's had bilateral knee replacements, just confirms obviously that the wouldn't have had that done if the knee wasn't still hurting. I would make that assumption.

Q. If it was put to you that he had no left knee symptoms prior to 12 July 2022, could that be explicable on the basis of his consumption of Palexia for his lower back?

A. Yes, actually that's a very good question I've not thought of. 'Yes', is the answer to that because the broad effect of the medication is going to affect any part of the body. And so if you've got a very strong painkiller its ability to affect a place where there's some perhaps mild pain is greater than where it'll affect somewhere that's got, you know, stronger pain. The argument here being that he was on it for his lower back, which was obviously quite painful, to be on it, and it would have been helping his right knee as well. But, yes, there's a - you know, it's like a - I don't know, I'm thinking of a medical - really it's like a sledgehammer sort of - it's going to have a major effect on everything really in terms of that. So it's feasible that any of the medications that he was on for the other comorbidities or conditions would have an impact upon the perceived symptomatology in the left knee. And remember the symptoms belong to the patient. We don't - they tell us that they've got symptoms but equally it could have an impact upon dulling pain.

35. As a result of sustaining the injury, the Applicant contends that the medical evidence shows for the period from 2 December 2022 to date and as at this date he has been incapacitated for employment and required medical treatment and he continues to be entitled to benefits pursuant to sections 16 and 19 of the SRC Act.

36. The Applicant contends that the medical evidence shows that he has been unable to engage in work at his normal level due to the injury for the period from 2 December 2022 to date and as at this date.

37. The Applicant relies on the evidence of Dr Swe, Dr Reilly and Associate Professor Nielsen, General Orthopaedic Surgeon and says that their evidence should be preferred to that of the Respondent's medical expert.

38. The Applicant contends the Determination made by the Respondent on 2 December 2022 and the Reviewable Decision dated 16 December 2022 are not supported by the evidence.

39. Accordingly, the Applicant seeks an order setting the decision aside and in substitution a decision as set out below.

(a) Reliance on Comcare v Power [2015] FCA 1502 (Power) as authority for the proposition that Comcare is required 'to persuade the Tribunal as to why payments of compensation should not continue'.[43] > > (b) Citing Prain v Comcare [2017] FCAFC 143, 'there is nothing in the evidence before the Tribunal suggesting that anything has pushed the involvement of the Applicant's employment and the ongoing effects of his injury on 12 July 2022 in the background'.[44] > > (c) 'That the medical evidence is overwhelmingly in favour of the Applicant that he is still suffering the effects of the injury to his left Knee. The injury has produced significant and ongoing symptoms and is still the operative cause of the Applicant's inability to work and his requirement for medical treatment.'[45] > > (d) The opinion of Professor Steadman that Mr Piggin's symptoms in his left knee might have been masked by the use of Palexia was speculation.[46] > > (e) The Injury should be described as 'aggravation of pre-existing osteoarthritis of the left knee including vertical tear through the mid posterior horn of the medial meniscus with medial subluxation of the meniscal body' or in the alternative 'aggravation of pre-existing osteoarthritis in the left knee'.[47]

2. The crux of Mr Piggin's submissions is to ask the Tribunal to prefer the evidence of Associate Professor Nielsen in respect to his opinion about the consequences of the Incident on Mr Piggin's left knee.

1. Virgin contended as follows:[48]
   1. As at 2 December 2022 (at the latest) and presently, the Applicant no longer suffers the effects of his 'enthesopathy of the quadriceps tendon Left Knee', and/or
   2. As at 2 December 2022 (at the latest) and presently, the 'enthesopathy of the quadriceps tendon Left Knee' was no longer contributed to, to a significant degree, by the Applicant's employment with the Respondent.
   3. Thus, the Respondent was and is not liable to compensate the Applicant for an 'enthesopathy of the quadriceps tendon Left Knee' under any relevant provision of the SRC Act.
2. Virgin in its closing submissions contends:

(a) 'The core issue of this application is whether any present ongoing incapacity and any current need for medical treatment can be causatively linked to either a discreet injury which occurred in a subject incident on 12 July 2022 or the applicant has only suffered a time limited aggravation of the longstanding degenerative left knee condition, such that any ongoing incapacity and need for medical treatment are a result of that underlying condition.'[49] > > (b) That the 'preponderant weight of all the evidence - both factual and medical - fairly establishes that whilst previously asymptomatic, the applicant only suffered a time limited injury on 12 July 2022 and that his ongoing symptoms are causatively linked to a longstanding and underlying degenerative condition of his left knee which was in existence well before 12 July 2022'.[50] > > (c) That there is no onus of proof for any party but 'where a respondent insurer has discontinued benefits under a previously accepted claim, the insurer has to point to strong cogent evidence which establishes that such a decision is correct.'[51] > > (d) Consideration of the state of Mr Piggin's right knee is significant in assessing the condition of Mr Piggin's left knee prior to the Incident and the lack of comparison by Associate Professor Nielsen is criticised.[52] > > (e) The evidence of the Incident does not disclose 'any great application of force to the knee joint'.[53] > > (f) The history of the Incident contained in Professor Steadman's report of 5 October 2022, should be considered as the most 'accurate and reliable' as compared to that history contained in Associate Professor Nielsen's report to a 'twisting' action as part of the mechanism of the Incident. It is contended that Associate Professor Nielsen's evidence should be given less weight because of his understanding of the 'twisting' to form his opinion about the consequences of the Incident on Mr Piggin's left knee.[54] > > (g) Mr Piggin's contention that his left knee was asymptomatic prior to the Incident is refuted by:[55] > > > (i) Dr Shooter's evidence that it is not unusual in cases of this sort. > > > > (ii) Comparison to the condition of Mr Piggin's right knee in 2018 revealed the need for a knee replacement in the absence of acute symptoms. > > > > (iii) Mr Piggin's use of Palexia, a pain killer medication, for his lower back condition that Professor Steadman opined was helping Mr Piggin's left knee symptoms. > > (h) Dr Spurling's evidence adds nothing to Mr Piggin's case.[56] > > (i) The contention that Professor Steadman had conceded that Mr Piggin was still suffering the effects of the aggravation since the Incident must be considered in the context of Professor Steadman's reports and his oral evidence (particularly re-examination).[57]

Did Mr Piggin suffer an 'ailment or an aggravation of such an ailment'?

1. In Military Rehabilitation and Compensation Commission v May [2016] HCA 19; (2016) 257 CLR 468 at [49] (May), the High Court explained that the first task the Tribunal must undertake under the SRC Act is to consider the facts to determine if the employee is suffering a 'disease' or an 'injury'.
2. The question posed of whether Mr Piggin suffered an 'ailment or an aggravation of such an ailment' presupposes a factual finding that the Injury was a 'disease' as defined in the SRC Act. The parties did not contend otherwise but it is necessary for the Tribunal to be satisfied as to the distinction between 'injury' and 'disease' for the purposes of the SRC Act.
3. The definition of 'injury' under ss 5A(1) of the SRC Act includes 'a disease suffered by an employee'. Subsection 5B(1) of the SRC Act defines 'disease' to mean either 'an ailment suffered by an employee' or 'an aggravation of such an ailment', that was 'contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee'.
4. The Incident. Mr Piggin described the Incident in his statement as:[58]

On 12 July 2022 I was trying to pull a luggage barrow loaded with ten to fifteen bags toward the rear of the plane. I grabbed the ring on the tow arm of the barrow and as soon as I started pulling it I felt pain at the rear of my left knee. It felt like someone had punched me in the back of the left knee and as a result I dropped the tow arm. I went to pick the tow arm up and bent my left knee. As I did that I got another sharp pain and I dropped the tow arm again. I stood still for a little while then walked over to the Team Leader and explained what had happened.

1. Any difference in the description of the Incident as variously described in the history's contained in the medical records was clarified by the oral evidence of Mr Piggin during cross examination that he did not twist his left knee when pulling the luggage barrow. This is material because it goes to the potential severity of the impact on Mr Piggin's left knee from the mechanism of the Incident. As Associate Professor Nielsen included a twisting in the mechanism of the injury to the left knee in the history to his written expert reports, he was asked during oral evidence his opinion on the basis that there had been no twisting of the knee.
2. The Tribunal is satisfied that Associate Professor Nielsen was able to distinguish the effect of the 'twisting' action on Mr Piggin's left knee in his opinions during oral evidence. Associate Professor Nielsen in examination in chief described the impact of the Incident on Mr Piggin's knee as:

I would anticipate that moving a luggage barrow around would require a significant amount of force. I would say that placing his knee in a flexed position to do that leads to increase of stresses going through the knee...those forces that went through his knee would be significant impact load to his knee. And specifically, most likely to be inside his knee.[59]

1. That opinion of Associate Professor Nielsen is supported by Professor Steadman who described in cross examination by Mr Seymour, the forces going through Mr Piggin's knee:[60]

As I said, the knee takes four times the bodyweight in terms of forces. So that's just with normal walking. So, yes, we can assume that if he's bracing himself as he describes and slightly - you know, knees slightly flexed or slightly crouched. Bends over - leaning backwards to try and get that - over the initial inertia, you know, I don't know an exact but I suspect that we could confidently say that's eight to ten times is bodyweight that would be going through, but that may be an underestimation.

1. The Tribunal is satisfied that the description of the Incident by Mr Piggin in his written statement (Exh A1) is consistent with that as contained in the history included in Professor Steadman's expert report (Exh R7) as follows:

He reports that his injury was on 12.07.2022. He says that he was at the bottom at the back of the aircraft. He said they were loading baggage onto the plane, and he describes that the tractor had brought the barrow up. The first barrow was empty but the second one had about ten bags on it. He says that he has a technique for pulling on the barrow where he braces himself and then pulls with slightly flexed knees and back and then pulls with his lats. He said he pulled then felt a sudden pain in his left knee. He said that he reported it with the leading hand because it was sore, and he tried to do it again but it was painful.

1. Diagnosis. The diagnosis of 'enthesopathy of the quadriceps tendon left knee' subject of the Claim is derived from the medical imaging (X-ray and Ultrasound) report dated 14 July 2022 that provides (the X-Ray):

X-ray findings: Findings: The bones show normal alignment. There is mild moderate osteoarthritic change involving the medial compartment and in the patellofemoral joint of the right knee. There is a small bony spur arising from the upper pole of patella in keeping with enthesopathy. No fracture or erosion seen.

Ultrasound Findings: The musculature superior to the popliteal fossa appears normal. No Baker's cyst seen. The popliteal artery and vein are patent. Calcification of 6mm associated with the distal quadriceps tendon suggesting enthesopathy. Some fluid in the suprapatellar recess. No effusion in the infrapatellar recess. The patellar tendon appears normal. The menisci and collateral ligaments appear normal.

Conclusion: 1. There is enthesopathy of quadriceps tendon. 2. Collateral ligaments and menisci appear normal. No significant findings.

1. Professor Steadman, Associate Professor Nielsen and Dr Shooter all agree that the diagnosis of 'enthesopathy of the quadriceps tendon left knee', subject of the Claim, was not the relevant diagnosis:

(a) Professor Steadman's diagnosis was 'The diagnosis of the knee is osteoarthritis. As noted, there are significant similarities between the right and left knee MRIs that both show complex meniscal tears and degenerative change'. > > (b) Dr Shooter's diagnosis was 'It is more likely than not that Mr Piggin was suffering from an asymptomatic at the time, identifiable condition affecting his left knee which would be bilateral chronic meniscal tears and tricompartmental moderately severe arthritis'. > > (c) Associate Professor Nielsen's diagnosis was 'Mr Piggin sustained a soft tissue injury to his left knee which likely caused tearing to the posterior horn of his medial meniscus which has caused an aggravation of pre-existing asymptomatic osteoarthritis in that knee'.

2. Common to all 3 expert orthopaedic surgeons was that Mr Piggin had preexisting osteoarthritis of his left knee. Mr Piggin's long standing general practitioner, Dr Spurling, also gave evidence that Mr Piggin had severe osteoarthritis of his left knee prior to the Incident.
3. Associate Professor Nielsen opinion as to the severity of Mr Piggin's pre-existing osteoarthritis during examination in chief was that the X-Ray showed 'mild, medial joints-based narrowing of his knee. But really reported to demonstrate a fairly normal knee...And I was surprised with that initial x-ray that it really didn't demonstrate much in the way of arthritic change in the knee'.[61]
4. The Tribunal is reasonably satisfied that Mr Piggins had moderate to severe degenerative osteoarthritis at the time of the Incident. This is not a remarkable conclusion given Mr Piggin's age, employment history of physical demanding roles and his previous participation in team sports.
5. In context of the medical evidence before the Tribunal, Mr Piggin's condition of 'degenerative osteoarthritis of the left knee' satisfies the definition in 5A(a) of the SRC Act of 'a disease suffered by an employee' and therefore requires application of s 5B of the SRC Act to determine Virgin's liability.
6. It was not contended, nor supported by any medical evidence that Mr Piggin's condition of degenerative osteoarthritis was caused by his employment in the sense required by s 5B of the SRC Act, rather that the condition was 'exacerbated' or 'aggravated' by the Incident.
7. Aggravation. Section 4(1) of the SRC Act defines aggravation as 'includes acceleration or recurrence'. In Ogden Industries Pty Ltd v Lucas [1967] HCA 30; (1967) 116 CLR 537 at 593, Windeyer J said:

"Aggravation" means, I think, that an existing disease has been made worse, not that it has simply become worse. "Acceleration" I have previously said and venture to repeat "probably presupposes a progressive disease, one that, running its ordinary course, increases in gravity until a climax, such as death or total invalidism, is reached - its progress to this end result not being ordinarily susceptible of being permanently arrested, but susceptible of being hastened by external stimuli".

1. Logan J in Military Rehabilitation and Compensation Commission v Katterns [2017] FCA 641 (Katterns) made the following observations about what can constitute 'aggravation' (at [48]):

The Commission fairly and correctly conceded that pain could in certain circumstances constitute an aggravation of a pre-existing injury (see, for example, in Commonwealth v Beattie [1981] FCA 88; (1981) 53 FLR 191 at 200-201, (Beattie) and Tippett v Australian Postal Corporation [1998] FCA 335; (1998) 27 AAR 40 at 43-44). In Beattie, Evatt and Sheppard JJ, at 200-201, discussed and regarded as of continuing relevance observations separately made on this subject in respect of earlier workers' compensation legislation by Windeyer J and Kitto J respectively in Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626. From these it follows that pain brought on by the undertaking of particular activities in the course of Army Reserve service could constitute an aggravation of a pre-existing injury, even though there was no underlying pathological change evident. The pain might be such as to limit particular bodily functions and so constitute an "impairment". In turn, unless denied by medical science, the experience of pain having this effect might make a hitherto quiescent condition manifest and indefinitely continuing with this limiting effect. Necessarily, conclusions of fact based on material reasonably capable of supporting such conclusions are entailed in determining whether the experience of pain can constitute an "impairment" as defined.

1. Professor Steadman and Dr Shooter do not agree with Associate Professor Nielsen that Mr Piggin's underlying osteoarthritis was aggravated by the Incident such to cause the meniscal tears shown on the 2022 MRI as the radiologist report that states: [62]

Conclusion: Strain injury to the MCL. MCL bursitis. Complex tear of the medial meniscus. Vertical tear through the mid posterior horn of the medial meniscus with medial subluxation of the meniscal body. Suspected horizontal tear anterior horn of the lateral meniscus. Moderate chondromalacia patella (Grade II/III). Full thickness articular cartilage defect medial and lateral tibial condyles as described above. Undisplaced chondral flap tear medial femoral condyle. Mild knee joint effusion.

1. Rather, Professor Steadman and Dr Shooter opine, based on the available earlier imaging of Mr Piggin's right knee (2019 MRI), that it was probable that his left knee had similar degeneration, including meniscal tears at the time of the Incident because:

(a) Dr Shooter opined 'generally speaking, degenerative changes could be expected to be systemic and he had similar physical appearances to both knees at the time of examination'. > > (b) Dr Shooter did not consider it likely that Mr Piggin suffered an acute or chronic tear of his medial meniscus as a result of the Incident, and it was not the cause of Mr Piggin's ongoing left knee issues. > > (c) Dr Shooter opined that 'generally speaking, horizontal meniscal tears can be considered to be degenerative, whereas vertical tears are felt to be acute.' > > (d) Dr Shooter's opinion was that 'once arthritis develops, the chemistry in the knee changes, making the meniscus "brittle", and amenable to damage or tearing from normal levels of use'. > > (e) Professor Steadman and Dr Shooter relied on the lack of an effusion with reciprocal bone oedema visible on the MRI in the vicinity of the vertical tear to support their conclusion the vertical tear in the medial meniscus was not as a result of the Incident.

2. Despite the conflict in the evidence between Associate Professor Nielsen as against Professor Steadman and Dr Shooter in respect of the causation of the meniscal tears (particularly the vertical tear), it is common ground of Professor Steadman, Associate Professor Nielsen and Dr Shooter that Mr Piggin suffered an aggravation of his pre-existing osteoarthritis of his left knee by the Incident because:

(a) Professor Steadman opined that 'on the balance of probabilities, he has suffered from a minor aggravation of a pre-existing degenerative condition.' > > (b) Dr Shooter opined that Mr Piggin 'may have been suffering a work-related exacerbation of this condition from 12 July 2022 until likely mid-October 2022, with any symptoms beyond that point being the natural history of his underlying condition.' > > (c) Associate Professor Nielsen's opinion was that the meniscal tears shown in the MRI were 'new tearing of his medial meniscus to that left knee has increased the stresses within the medial compartment, causing him to become symptomatic and accelerating degeneration within that knee'.

3. The Tribunal is reasonably satisfied that Mr Piggin's pre-existing osteoarthritis was aggravated by the Incident because:

(a) Mr Piggin's evidence, corroborated by his medical records, that his left knee was asymptomatic prior to the Incident. > > (b) Mr Piggin's account of the Incident is consistent with his left knee being strained as a result of the mechanism of him manually pulling the luggage barrow, such that he suffered immediate pain in his left knee and then ongoing pain, including 'clicking' and 'giving way' of the affected joint. > > (c) For present purposes, it does not matter whether the contradictory opinions of Professor Steadman and Dr Shooter to that of Associate Professor Nielsen, as to whether Mr Piggin had pre-existing meniscal tears as they all agree Mr Piggin's pain symptoms from and after the Incident point to aggravation of Mr Piggin's pre-existing osteoarthritis.

4. There is no controversy that the Tribunal has the power to re-formulate in its findings the exact injury which the available evidence identifies occurred in the Incident.[63]
5. The Tribunal is reasonably satisfied because of the medical evidence before the Tribunal that Mr Piggin:

(a) had moderate to severe pre-existing osteoarthritis of his left knee at the time of the Incident; and > > (b) suffered from 'an aggravation of such an ailment, namely 'aggravation of degenerative osteoarthritis of the left knee' as defined in ss 4(1) of the SRC Act.

Was Mr Piggin's aggravation of an ailment contributed to, to a significant degree, by his employment so as to constitute a 'disease'?

1. The Tribunal must decide whether Mr Piggin's aggravation of his underlying degenerative osteoarthritis of his left knee, that led to a knee replacement, was contributed to a 'significant degree' (substantially more than material) by the Incident.
2. The application of the term 'contributed to a significant degree by the employee's employment by the Commonwealth or a licensee' in s 5B of the SRC Act was considered by Katzmann J in Power[64]:
   1. There is no room for doubt that the purpose of the 2007 amendments was to strengthen the connection necessary between the employment and the contraction or aggravation of a disease. Including a definition of "significant" as "substantially more than material" makes this abundantly clear. In other words, it is insufficient that the contribution of the employment be "more than trivial"; it had to be substantially more than trivial. The Tribunal did not recognise this, despite its reference to the definition. The error the Tribunal made is similar to the one made by the Tribunal in Sahu-Khan. In a valiant attempt to save the decision Mr Robinson drew attention to the fact that Dr Lewin had said "certainly more than trivial", but this was no more than an emphatic way of saying "more than trivial". It did not satisfy the statutory test and the Tribunal was mistaken in thinking otherwise.
   2. Moreover, the current test of contribution also requires an evaluative exercise to be undertaken. That is apparent both from the words used in subs (1) of s 5B and also the matters to which subs (2) draws attention. The Tribunal did not engage with any of them. Indeed, it did not mention subs (2) at all. While the chapeau to the subsection states that those matters "may" (not "shall") be taken into account, a word which is generally permissive, properly construed it is at least arguable that in this context it is directory; in other words that "may" means "shall": see Julius v Lord Bishop of Oxford (1880) 5 App Cas 214 at 222-223 (Earl Cairns LC); North Australian Aboriginal Justice Agency Ltd v Northern Territory [2015] HCA 41 at [209] (Nettle and Gordon JJ). In the absence of argument on this question I refrain from expressing a concluded view. Nevertheless, there is nothing in the Tribunal's reasons to indicate that it carried out the kind of evaluative exercise required by the statute.
3. To be satisfied that Mr Piggin's left knee osteoarthritis was aggravated in the course of his employment with Virgin by the Incident, the SRC Act expressly provides in deciding that question reference to s 5B(2) matters for the Tribunal to consider include the duration of his employment; the nature of, and particular tasks involved in his employment; any predisposition of the employee to the aggravation; and activities of the employee not related to the employment; and any other matters affecting the employee's health. The list is non-exhaustive, and s 5B(2) specifically provides that the matters listed do 'not limit the matters that may be taken into account'.

1. Mr Piggin is 61. He has worked for Virgin since 2012 and at the time of the Incident for ten years, always in the role as a 'pit crew operator' that is otherwise described as a 'baggage handler'. After the Incident, Mr Piggin was on restricted duties and then stopped working from mid-October 2022.

Nature of tasks involved in employment with Virgin

1. The work of a pit crew operator is physically demanding role, requiring the loading and unloading of baggage and freight from aircraft, loading and unloading luggage barrows from conveyors, and moving these barrows by hand. As such, the nature of the work puts strain on Mr Piggin's joints and lower back, his work history and medical records show that he has previously had back strains and right knee pain after a workplace incident in 2015.
2. The Tribunal is reasonably satisfied that the nature of Mr Piggin's role with Virgin over a 10-year period has materially contributed to his degenerative osteoarthritis.

Any predisposition of Mr Piggin to aggravation of left knee osteoarthritis

1. The Tribunal is reasonably satisfied that the medical evidence shows that Mr Piggin had moderate to severe osteoarthritis of his left knee prior to the Incident. The Tribunal gives weight to the evidence of Professor Steadman, Dr Shooter and Dr Spurling in making that finding.
2. His work history prior to Virgin has been in other physically demanding jobs such as being an apprentice automotive spray painter and as a concrete re-surfacer are likely to have contributed to his degenerative osteoarthritis.
3. The Tribunal gives weight to the evidence of Professor Steadman's and Dr Shooter's opinion that Mr Piggin was pre-disposed to aggravation of his pre-existing osteoarthritis from his employment history, including with Virgin.

Any activities of Mr Piggin not related to his employment with Virgin

1. The Tribunal was not satisfied that any other activities undertaken by Mr Piggin, including his gym workouts, during his employment with Virgin, had any adverse impact on the path of the degenerative osteoarthritis of his left knee.

Any other matters affecting Mr Piggin's health

1. Mr Piggin had comorbidities of diabetes, hypertension and long-standing low back pain. His right knee had severe degenerative osteoarthritis with a requirement for a total knee replacement as the only viable medical intervention available. He had a BMI of 26 and is quite slender with well-defined upper body musculature.[65]
2. The Tribunal does not give any significant weight to these matters contributing to Mr Piggin's degenerative osteoarthritis in his left knee.

1. The Tribunal is satisfied that Mr Piggin's aggravation of his degenerative osteoarthritis, for the period from 12 July to 2 December 2022, was contributed to a significant degree by the Incident in the course of his employment with Virgin because it is consistent with the medical evidence of Professor Steadman, Associate Professor and Dr Shooter for that period and giving weight to:

(a) Mr Piggin's age and duration of employment with Virgin in a physically demanding role directly impacting on his left knee joint, as well his long work history from finishing school in physically demanding roles and his participation in contact team sports, leading to constitutional degenerative osteoarthritis. > > (b) Mr Piggin's pre-existing moderate to severe degenerative osteoarthritis making him vulnerable to aggravating his 'disease' by the physicality of his role as a pit crew operator. > > (c) Mr Piggin's evidence in respect of the Incident and the pain he experienced at the time and since. > > (d) The opinion of Professor Steadman, consistent with Associate Professor Nielsen, as to the forces applied to Mr Piggin's left knee from the Incident. > > (e) The results of the 2022 MRI showing that Mr Piggin had meniscal tears and swelling five weeks after the Incident.

Did Mr Piggin continue to suffer the effects of his injury after 2 December 2022, and if so, whether the injury remains contributed to a significant degree by his employment?

1. Gyles J in Australian Postal Corporation v Bessey,[66] citing a line of authority ending with the High Court in Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533, stated:

if the aggravation is temporary, so that after a time it ceases to have any effect and leaves the underlying condition no worse, then there is no relevant continuing injury causing incapacity.

1. The issue of whether Mr Piggin's aggravation of his degenerative osteoarthritis is contributed to a significant degree by his employment with Virgin after 2 December 2022 is the most difficult question to be determined in this matter.
2. That is because, accepting that there has been an aggravation of Mr Piggin's underlying condition of degenerative osteoarthritis caused by his employment with Virgin, which all three experts agree to for differing times and reasons, the Tribunal must determine when that aggravation ceases to have any effect and leaves the degenerative osteoarthritis no worse than it would have been if there had been no aggravation.
3. In Mr Piggin's circumstances there is no contest that at some time the only viable medical intervention was a total knee replacement for his left knee.
4. Professor Steadman's description[67] 'if we drew a graph and the graph had a line which was gently declining, then along that line there is a spike, and the spike represent the exacerbation before the spike goes back down to the same downward continuum' is a useful frame for understanding the temporal nature of an aggravation for an underlying degenerative disease.
5. The temporal period for possible aggravation of Mr Piggin's degenerative osteoarthritis is between 12 July 2022 (the Incident) and 28 June 2024 (left knee replacement). That end date is because the left knee replacement was always the only viable medical intervention option for Mr Piggin to resolve his degenerative osteoarthritis.
6. The difference in opinion between Professor Steadman, Associate Professor Nielsen and Dr Shooter is how long it took for the 'spike' caused by the Incident to return to the downward continuum of degeneration of Mr Piggin's left knee:

(a) Dr Shooter. Dr Shooter's opinion is that 'it would be reasonable to allow such an exacerbation to run for between six weeks and three months with symptoms beyond this point being the natural history of the pre-existing condition'[68]. Therefore, the aggravation caused by the Incident could reasonably expected to have stopped in mid-October 2022 and certainly by 2 December 2022. > > (b) In cross examination by Mr Seymour: [69] > > > (i) On how Dr Shooter came to the opinion of a maximum of three months for the exacerbation to resolve Dr Shooter said: > > This comes from general WorkCover practice where we usually will say that an aggravation of arthritis, where the aggravation is pain alone, in the underlying condition itself had not changed, we'll usually allow a three month period for them to have those increased symptoms. And that's a pretty standard thing in WorkCover practice". > > > (ii) On the circumstances of no symptoms and then symptoms, Dr Shooter said: > > And it's the difference between what's caused by work and what's the natural history of his underlying condition. Again, his injury, if we're happy to call it an injury, can not have caused his lateral compartment full thickness knee arthritis. It can't have caused his lateral meniscal tear. It can't have caused his retro patella arthritis. And it's unlikely to have caused his medial compartment arthritis given the timeframe. So his symptoms are far more likely to be related to what was, in my opinion, pre-existing constitutional arthritis. And it's not unusual for once symptoms have been initiated to continue. Because that's the natural history of this type of problem. > > > (iii) On the terminology 'general WorkCover practice', Dr Shooter said: > > So over a period of time when you do enough cases, you read other people' reports, you read the literature, you read books like AMA Guides to the Evaluation of Disease and Injury Causation. You build up an understanding of how long it can be reasonable for an exacerbation of arthritis to run for and there's been no change in the underlying pathology. You'll ask 10 different surgeons, you'll get 15 different answers. But usually where there's been no change in the underlying pathology, and this is a general statement, not a specific reference to Mr Piggin at the moment, where there has been no identifiable change in the underlying pathology, it is entirely plausible that could have been an exacerbation, or as WorkCover now likes to call it, a work related temporary aggravation of the underlying symptoms. And we usually say that it's anywhere between six weeks and six months depending on the nature of the underlying injury and what actually happened. And I normally say between six weeks and three months. > > > (iv) As to individual circumstances, Dr Shooter said: > > So as we have already mentioned, Mr Piggin may or may not have had a new vertical tear in an already degenerate meniscus. As I said, I've already said it's possible that that's what happened. But having that happen does not explain his ongoing pain. That is far more likely to be related to the actual arthritis itself, his grade 4 lateral compartment arthritis, his grade 4 medial compartment arthritis and his grade 2 to 3 retro patella arthritis, combined with his pre-existing lateral meniscus tear. That is far more likely to him his long-standing pain particularly as he has no mechanical symptoms that we would normally see with someone who had an acute meniscal tear or indeed a big tear, if that was the main driver of his symptoms. So at no stage has he had any mechanical symptoms such as locking or giving way. > > (c) Professor Steadman. Professor Steadman's opinion is that the Incident was a minor aggravation that would have resolved by no later than 2 December 2022 as opined by Dr Shooter. Professor Steadman in cross examination said:

And so my description of the left knee findings are that he's had a minor aggravation. But in terms of the effect on his life, I believe that, as you rightly pointed out to me, it was more substantial".[70]

(d) Professor Steadman agreed in cross examination that Mr Piggin's left knee was asymptomatic prior to the Incident and:

by all accounts of what you've told me today, he continues to have. Q. The evidence is that that's ongoing? Yes...He's had a knee replacement.[71]

(e) In re-examination by Mr Clarke, Professor Steadman said:[72]

I've made a diagnosis. I've considered the mechanism, and, you know, done the clinical examination. And I've provided a framework for which I believe, based upon that history and the bilaterality of the disease, that has knee has been aggravated for a period of time, after which the curve joins back to the normal part of the deterioration.

(f) Associate Professor Nielsen. Associate Professor Nielsen's opinion is that the Incident caused a significant injury to Mr Piggin's medial meniscus that 'defunctioned' the meniscus and accelerated the degeneration of his osteoarthritis such that the total knee replacement was the only viable option.

(g) Associate Professor Nielsen concedes that:

Certainly if it had been only an arthritic knee that had been injured, which would have heralded itself as quite a bit of joint space loss, significant arthritic change on the inside of his knee radiologically, one could anticipate that that aggravation - well, that exacerbation would have run that course as Dr Shooter has said[73].

Did the Incident cause an acute tear of Mr Piggin's medial meniscus?

1. The difference in opinion as to the length of time Mr Piggin's degenerative osteoarthritis of his left knee was aggravated is partly whether, as Associate Professor Nielsen opines, the Incident caused an acute vertical tear of his medial meniscus such that it 'defunctioned' the medial meniscus and accelerated his degenerative osteoarthritis, requiring earlier surgical intervention by total knee replacement than otherwise necessary.
2. Dr Shooter opines that, the MRI as a diagnostic tool, is unable alone, to pinpoint with certainty when the meniscal tears to Mr Piggin's left knee occurred, thus it is impossible objectively to be able to attribute them to the Incident or as a product of the progression of Mr Piggin's degenerative osteoarthritis or resulting from previous injuries not related to his employment with Virgin.
3. Associate Professor Nielsen's supplementary report dated 2 December 2024[74], refers to a journal article to support his opinion that from the time of the Incident and the X-Ray to the MRI five weeks later, the vertical tear of the meniscus near its root caused a rapid acceleration of Mr Piggin's osteoarthritis.
4. The reliance on the journal article by Associate Professor Nielsen was put to Professor Steadman and Dr Shooter in evidence and the Tribunal prefers their opinion regarding how much weight should be given to the conclusions because Mr Piggin's age and the partial tear of his meniscus (as opposed to complete tear) made the article of little utility in the specific circumstances of Mr Piggin.

1. Mr Piggin ceased work in mid-October 2022 and has not worked since. Professor Steadman, Associate Professor Nielsen and Dr Shooter all opine that Mr Piggin is not able to continue to work in his role as a baggage handler for Virgin.
2. The Tribunal is satisfied that Mr Piggin is incapacitated from returning to work as a 'baggage handler'.

1. The Tribunal is reasonably satisfied that Mr Piggin continued to suffer the effects of his aggravation of degenerative osteoarthritis from 2 December 2022 and was contributed to a significant degree by his employment with Virgin until his knee replacement on 28 July 2024, because:

(a) Mr Piggin's age and duration of employment with Virgin in a physically demanding role materially contributed to and made him vulnerable to aggravation of his underlying degenerative osteoarthritis in his left knee. > > (b) His long work history from finishing school in physically demanding roles and his participation in contact team sports, all contributed to his degenerative osteoarthritis. > > (c) The Tribunal finds that when Mr Piggin was pulling the luggage barrow at the time of the Incident, he did not twist his knee and the method he used was his usual one of bracing himself as he pulled. There were no exceptional circumstances from his ordinary method of carrying out his duties as a baggage handler that he had done for ten years. The Tribunal finds that significant force, consistent with the evidence of Professor Steadman and Associate Professor Nielsen, was applied to his knee by the Incident and by extension in the normal course of his duties with Virgin. > > (d) Mr Piggin's physical symptoms of 'clicking' or '_giving w_ay' after the Incident make it more likely the vertical tear of his medial meniscus occurred at the time of the Incident or, the condition of Mr Piggin's medial meniscus at the time of the Incident was so degraded that the 'usual method' adopted by Mr Piggin of pulling a luggage barrow caused a vertical tear of the meniscus, without an acute event evidenced by an oedema at or near the tear. Dr Shooter concedes that this is a possible outcome and Professor Steadman opinion was that Mr Piggin's medial meniscus degeneration was 'a bit like a piece of 'crab meat that has been chewed and spat out'. > > (e) Dr Shooter's opinion as to the duration of the aggravation, by reference to 'general WorkCover practice' of between 6 weeks and 6 months, but in his practice reduced to 3 months, was not compelling in the specific circumstances of Mr Piggin. > > (f) The Tribunal is not satisfied that the evidence about Mr Piggin's use of the medication Palexia 'masked' his left knee symptomology because it is speculative. Further, as the effect of the use of Palexia and its impact on his symptoms of his left knee was not put to Mr Piggin during cross examination the Tribunal does not give weight to the contention. > > (g) Consistent with the observations of Logan J in Katterns, Mr Piggin's symptoms of pain after the Incident did not resolve to his pre-existing asymptomatic condition, or anywhere near them, rather they stayed relatively constant and affected his capacity to deal with his normal activities and lifestyle, such that the Tribunal is satisfied Mr Piggin continued to suffer aggravation of his degenerative osteoarthritis in his left knee past 2 December 2022 until his knee replacement. > > (h) The Tribunal finds that Mr Piggin's ongoing symptomology satisfies the definition of 'recurrence' in s 4(1) of the SRC Act. > > (i) The Tribunal relies on its finding that at the time of the Incident, Mr Piggin was suffering moderate to severe degenerative osteoarthritis and that his employment with Virgin contributed to a significant degree to an aggravation of his underlying osteoarthritis from the date of the Incident to 2 December 2022 and finds that the evidence supports the aggravation continuing until the knee replacement surgery. > > (j) The Tribunal accepts the opinions of Professor Steadman and Dr Shooter, insofar as they are in conflict with Associate Professor Nielsen: > > > (i) The condition of Mr Piggin's left knee at the time of the Incident was likely comparable to his right knee as shown from the 2019 MRI of his right knee, showing horizontal meniscal tears and moderate to severe osteoarthritis. > > > > (ii) That Mr Piggin did not have an 'acute' vertical tear of his meniscus in his left knee resulting from the Incident because the lack of oedema visible on the 2022 MRI. > > > > (iii) The journal article in Associate Professor Nielsen's supplementary report is of little utility to support his opinion that the Incident accelerated Mr Piggin's degenerative osteoarthritis because of Mr Piggin's age, pre-existing osteoarthritis and the vertical tear of the meniscus shown on the 2022 MRI was not at the root. The journal article was focussed on a complete tear of the meniscus at the root.

(a) Set aside the decision for review and in substitution decides the Respondent is liable, pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), (SRC Act) for the Applicant's 'aggravation of degenerative osteoarthritis of the left knee' from 12 July 2022 until 28 July 2024. > > (b) Remit to the Respondent the determination of compensation payable to the Applicant pursuant to ss 16 and 19 of the SRC Act.

2. The Tribunal orders that the Respondent pay the Applicant's reasonable party/party costs and disbursements in accordance with section 67 of the SRC Act, to be agreed or assessed.

Referral Letter to Dr Judith Spurling, dated 30 November 2023

Briefing Letter to Dr David Shooter, dated 8 March 2018 (ST1)

Medical Report of Dr David Shooter, dated 14 March 2018 (ST2)

Briefing Letter to Dr David Shooter, 29 August 2023

Medical Report of Dr David Shooter, dated 4 September 2023

Letter from QBE to Professor Steadman, dated 27 September 2022 (T13)

Medical Report of Professor Peter Steadman, dated 13 October 2022 (T16)

Medical Report of Professor Steadman, dated 11 December 2023

ODG by MCG - Osteoarthritis, Knee, as at 29 November 2024

Briefing letter to Professor Steadman, dated 23 November 2023

Application for review, dated 15 February 2023 (T2)

Workers' Compensation Claim, dated 19 July 2022 (T6)

Fair opportunity letter from QBE to Applicant, dated 7 November 2022 (T17)

Request for reconsideration, dated 8 December 2022 (T20)

Reviewable decision dated 16 December 2022 (T22)

Medical Report of Dr Judith Spurling, dated 15 December 2023

Medical Report of Associate Professor Gary Nielsen, dated 2 August 2023

Referral Letter to Associate Professor Gary Nielsen

Supplementary Medical Report of Associate Professor Gary Nielsen, dated 2 December 2024

Medical Report of Dr Reilly, dated 30 August 2022 (T12)

Medical Report of Dr Reilly, dated 4 October 2022 (T14)

Medical Report of Dr Reilly, dated 15 November 2022 (T18)

Medical Report of Dr Reilly, dated 20 December 2022 (T21)

[2] On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.

[42] Applicant's Statement of Facts, Issues and Contentions (SOFIC) dated 15 December 2023.

[43] Applicant's closing submissions dated 17 January 2025 at [3.4].

[48] Respondent's SOFIC dated 15 February 2024.

[49] Respondent's closing submissions undated at [5].

[63] See Telstra Corporation Limited v Hannaford [2006] FCAFC 87; Abrahams v Comcare [2006] FCA 1829; Ellison v Comcare [2022] FCA 95; Applicant's SOFIC; Respondent's SOFIC.

[64] [2015] FCA 1502 at [93]- [94].

[66] [2001] FCA 266 at [6]

[69] Transcript of hearing, pp.107-108.