1. The following represent my findings of fact. The findings are based primarily on the oral evidence of the applicant. Where I have relied upon another source it is identified.
2. For present purposes the history of this matter can begin in mid-2016.
3. The applicant began what he describes as heavy training in July 2016. In some weeks, that involved training 3 to 4 times per week consisting of 3 runs, 2 gym sessions, 1 circuit, and 3 pilates and yoga sessions.[1] What each session involved varied over time but even in periods described as light training the applicant would include activities such as weighted squats involving weights of up to 100 kilograms and lifting free weights of 50 kilograms.
4. From November 2016, the applicant was competing in one or two athletic events each month. Notwithstanding the intensity of the applicant's training and competing, it is not in dispute that the applicant was symptom free when he commenced his employment at the ONA in March 2017.
5. At the ONA the applicant was employed to provide secure delivery of classified material to various destinations around Canberra. This included Parliament House and the Department of Defence. The heaviest weight the applicant claims he was required to carry was 10 kilograms of classified materials within a secure, hard-shell briefcase. I am not positively satisfied that the loads the applicant was required to carry were as heavy as claimed, but, having regard to my other conclusions below about the nature of the injury, I do not consider it necessary to determine precisely how heavy the load was.
6. The most significant length of time the applicant was required to carry such loads was when making deliveries to Parliament House. On the applicant's estimate, when he made deliveries to Parliament House, he was required to walk approximately 2 kilometres.
7. The applicant began to experience lower abdominal pain at work in his second week of work and the symptoms worsened in his third week of work. The applicant noticed that, as the working week progressed, his pain would come on earlier in the day and take longer to subside in the evening. The symptoms at this point however, did not significantly interfere with his training or competing. The applicant competed at the National Championships.
8. On 6 April 2017, he attended upon Soft Tissue Therapist, Mr Scott Smith, complaining of 'lower abdominal type pain'.[2] The treatment notes indicate that the applicant could not recall any specific incident as prompting the pain.
9. When the applicant returned to Mr Smith the following week, the treatment notes record continued complaint of abdominal and oblique pain and note that the '[o]nly thing he says he has done differently is work'.[3] In the week of 10-16 April, the applicant's abdominal muscles were very sore and the pain was not clearing overnight. By the middle of the week he had sharp shooting pains in his lower abdominal muscles. On right heel strike he suffered shooting pains in the inguinal region.
10. When the applicant competed at the Stawell Gift on the weekend of 15 and 16 April, the applicant modified the events in which he participated as a consequence of the pain he was experiencing.[4]
11. In the week commencing 17 April 2017, the applicant did not work. He participated in the World Masters Games in New Zealand, which were held from 21 April 2017 to 30 April 2017. He competed in both the 200 metres and the 400 metres and the 4x400 metre relay events.
12. Following the World Masters Games the applicant had a week and a half long holiday on the Cook Islands. The applicant was active during the holiday and by the end was largely asymptomatic.
13. On his return to work on 10 May 2017, the applicant began feeling sore again in his lower abdominal muscles. Walking became more difficult and the pain on heel strike returned.
14. On 12 May 2017, the applicant attended upon Sports and Exercise Medicine Registrar, Dr Rachel Harris, having been referred to her by Mr Smith on 21 April 2017.
15. Dr Harris noted that the applicant described:

pain in the lower abdominal wall, after starting a new job in March, that meant he wasn't able to get to his usual yoga and pilates sessions. He was also carrying a heavy briefcase and walking significant distances.[5]

1. No definitive diagnosis was given and Dr Harris referred the applicant for an X-ray and asked him to have one week off all sport and exercise.[6]
2. On the applicant's account, when he was off work things got better but when he returned to work he got very sore again.
3. On 26 May 2017, the applicant returned to see Dr Harris. She reported that the X-ray ordered and an MRI did not reveal any abnormality. She noted:

his pain has settled considerably with load reduction and with having a week off work due to illness. Interestingly, when he returned on Tuesday, he noted pain in the right abdominal wall when he was pulling the 10kg wheeled bag.[7]

1. It was at this consultation that a diagnosis of 'sportsmans hernia' (sic) was floated as a possible explanation.[8]
2. Following this consultation, the applicant remained at work but reduced the weight of the documents he carried to a maximum of 2.5 kilograms and he switched to using a satchel which he held centrally in preference to the briefcase or wheeled bag he was using previously.
3. Despite these changes the applicant continued to suffer pain during the evening which would clear overnight but by mid-June 2017 the pain was no longer clearing overnight.
4. The applicant returned to Dr Harris on 18 June 2017. In the letter of Dr Harris dated 18 June 2018, Dr Harris records that the applicant 'has had a return of the abdominal and pubic symphysis symptoms with [his] return to work'[9], which were getting progressively more persistent but which resolved somewhat when the applicant ceased courier duties. Dr Harris stated that, 'it seems clear that the work duties have a causal relationship to his pain.'[10]
5. From 3 July 2017, the applicant ceased all courier work. Symptoms took two weeks to ease when he was desk based. Residual symptoms persisted until approximately December 2017.
6. On 13 July 2017, the applicant submitted a claim for compensation in respect of "central pubic symphysis pain, right oblique pain, possible sports hernia".[11]
7. The applicant resigned from the ONA on 29 August 2017.

1. Four doctors expressed opinions in relation to the applicant's condition.
2. The first was Dr Harris, the applicant's treating doctor. Dr Harris specialises in sports medicine. Dr Harris' reports document a history of the applicant's pain being provoked by the work duties and that his pain settled considerably with load reduction and with having time off work. She noted that it 'seems clear that the work duties have a causal relationship to his pain'[12] but never reached a definitive diagnosis of the cause of the pain. She did, however, speculate that ''the assymetrical nature of the new role, has caused a minor internal abdominal wall or fascial tear which was previously known as a 'sportsmans hernia'.''[13]
3. The second doctor to see the applicant was Dr Uthum Dias, consultant occupational physician. He saw the applicant and prepared a report for ONA on 18 July 2017, when the applicant was still suffering from acute symptoms.
4. The applicant levelled significant criticism at the examination undertaken by Dr Dias, in emails immediately after the report was delivered,[14] in his request for reconsideration[15] and in the application to the Tribunal.[16] The criticisms of Dr Dias were repeated in the applicant's oral submissions to the Tribunal.
5. Dr Dias was not called to give evidence to defend his report and in light of the unanswered criticisms of the report I am not inclined to place much weight on it.
6. Dr Dias gave a 'main provisional diagnosis' of 'athletic pubalgia, more commonly called sports hernia, affecting predominantly the right side of Mr Stefaniak's pubic region. The differential diagnosis is of mild osteitis pubis.'[17] On the basis of those diagnoses, Dr Dias concluded it was far more likely that the applicant's symptoms were caused by his intensive athletic training regime rather than his pre-injury role as a courier.[18]
7. The third doctor to see the applicant was Dr David Fitzgerald, a Consultant Occupational Physician. Dr Fitzgerald saw the applicant on 8 September 2017 and prepared a report dated 15 September 2017. Dr Fitzgerald accepted the current working diagnosis of sportsman's hernia but noted 'other differential diagnoses such as osteitis pubis, pubic symphysitis, adductor tendinitis, stress fractures and others, some of which have not been fully ruled out.'[19]
8. Dr Fitzgerald noted 'the detailed account of a temporal relationship between activities at work and flaring of symptoms' but considered, 'increasing symptoms associated with work as not necessarily an indication of causation.'[20] He considered it unlikely that the loads which the applicant was carrying would result in a significant abdominal or inguinal injury. However, he noted that "[i]t may be the case, however, that in the presence of a unilateral lower abdominal/inguinal injury such activities may exacerbate symptoms'.[21]
9. Dr Fitzgerald considered that the applicant's injury was most likely to have been caused by his sporting activities, and 'has merely been more symptomatic when he works'.[22]
10. Dr Fitzgerald was specifically asked whether the condition was an aggravation, acceleration or recurrence of a pre-existing or underlying condition and if so to note the nature of the aggravation. Dr Fitzgerald responded that the applicant had a 'stand-alone condition and not really any aggravation of a pre-existing condition.'[23] He went on to say:

I would note for clarity of course that [the applicant] did report exacerbation of his pain when working and carrying unilateral load but this in itself I do not think indicates an aggravation of underlying pathology, more just an exacerbation of his symptoms related to the activity, which equates to a worsening of his experience of the symptoms and continued experience of symptoms that may have been present in any event depending upon other activities but not necessarily an aggravation in strict terms.[24]

1. The last doctor to see the applicant was Dr Ron Muratore, a Sport and Exercise Physician.
2. Dr Muratore saw the applicant on 30 April 2018 and prepared a report dated 7 May 2018.
3. Dr Muratore ruled out the diagnosis of 'sportsman's hernia'.[25] He confirmed this view in his oral evidence before the Tribunal when he was given the benefit of the results of an MRI and X-ray taken of the applicant's pelvic region when his symptoms were acute. In his report, Dr Muratore made a diagnosis of '[p]ubic-related groin pain with a more accurate diagnosis not being immediately obvious'.[26] Dr Muratore related the groin pain, on the balance of probabilities, to the applicant's athletic activities noting the specific activities undertaken by the applicant in training were all 'risk factors for injury'.[27] He expressed the opinion that the onset of suprapubic pain 2 weeks into the applicant's employment was purely coincidental and not causally related to his employment.[28]

1. The applicant was unrepresented at hearing and so, not surprisingly, his submissions did not engage with the more technical aspects of the SRC Act. He submitted that even in the absence of a precise event or diagnosis the Tribunal should find that his work at the ONA in 2017 resulted in an injury.
2. In the applicant's submission the views of Dr Harris, who had the benefit of seeing him at the relevant time should be preferred because those views fit with the chronology of his symptoms. He noted his long history of injury free athletic training prior to commencing at ONA and the commencement of symptoms after commencing courier duties. He noted that the longer he worked the more persistent the symptoms became. However, the symptoms reduced when the loading at work was reduced.

1. The respondent contended that, because the applicant's symptoms had an insidious onset without some definite or distinct physiological change or disturbance, for the purposes of analysis, it was necessary to assess whether the applicant suffered an injury (as defined in the statute) by reference to the requirements which apply to a disease, rather than the requirements which apply to an injury (in the ordinary sense of that term). Consequently, it was submitted, in order for the applicant to succeed, it is necessary for the Tribunal to be satisfied that the applicant's employment contributed to a significant degree to the ailment from which he suffers.
2. The respondent submitted that, having regard to the evidence concerning the applicant's training regime and the medical evidence, it was not possible for the Tribunal to be so satisfied.
3. The respondent also submitted that, in light of the decision of the High Court in Military Rehabilitation and Compensation Commission v May [2016] HCA 19, the applicant may not be able to establish that what he suffered from is either an injury (in the ordinary sense) or a disease - on the basis that what he describes are merely subjective symptoms without identifiable pathology.
4. In the alternative, the respondent submitted that, in light of the opinion of Dr Muratore, the Tribunal could not be satisfied that the applicant's employment contributed to his ailment to a significant degree.
5. The respondent noted that the statutory threshold required more than a trivial contribution and more than a material contribution.[29] I accept that submission.
6. The respondent also submitted that it was necessary to undertake an evaluative exercise and give consideration to whether the discretionary factors in section 5B(2) of the SRC Act should be taken into account.[30] I accept that submission also.
7. The respondent submitted that a number of the discretionary matters weighed against a finding of a significant contribution - in particular, the duration of the employment, the nature of the tasks, and the applicant's non-employment activities.
8. The respondent contended that, given the applicant had only been employed for three weeks as a courier and his scheduled duties were of a relatively light nature, not involving the carrying of a constant load, this weighed against the finding of the requisite contribution by the employment.
9. The respondent noted the applicant's non-employment activities weigh heavily against the finding of significant contribution as, on the applicant's oral evidence, he was involved in training 3 to 4 times per week consisting of 3 runs, 2 gym sessions, 1 circuit, 3 pilates and yoga sessions and massage. The applicant's gym routine included 30 minute sessions of plyometric training and a strength and condition component. This involved springing actions, jumping on and off a box, jumping over 80 centimetre hurdles, weighted squats of up to 100 kilograms, power cleans lifted to his waist and free weights of up to 50 kilograms. The respondent submitted that the applicant's employment was simply the scene and not the cause of the injury.

1. In the course of the hearing and on careful review of the relevant medical reports it became clear that none of the medical practitioners who had treated or assessed the applicant was able to give a conclusive diagnosis. The biological cause of the applicant's pain could not be connected with any identifiable physical injury. Neither the X-ray nor the MRI identified any frank injury, and Dr Muratore gave very clear evidence that the applicant did not meet the criteria for a sportsman's hernia. Dr Harris never suggested that her diagnosis of a sportsman's hernia was conclusive.
2. In those circumstances, the Tribunal is left in the position of having an applicant who suffered symptoms of pain, which had a strong temporal association with his work, but with no identified organic basis for that pain.
3. The absence of any real understanding of the underlying cause of the applicant's pain rules out certain bases on which he could succeed. In the absence of evidence of the physiological change which led to the applicant's pain, there is no basis for a finding that he suffered a frank injury arising out of or in the course of employment.[31]
4. It is also impossible to find that his work significantly contributed to any ailment which is the root cause of his pain.
5. The more difficult question though is whether the pain, which he describes, and its strong temporal association with his employment duties, can provide the foundation for acceptance of a more limited claim based on a temporary aggravation of symptoms notwithstanding that the nature of that underlying injury is unknown and it is unlikely that any underlying problem was permanently altered by the activities the applicant performed at the ONA. In my assessment it can.
6. In the present case the following matters are significant:
   • (a) The applicant experienced pain, the onset of which was linked in terms of timing and severity with the performance of duties with the ONA.
   • (b) After commencing duties he began to suffer pain. When he took time away from work, as he did following the World Masters Games, he was largely asymptomatic. When he returned to work his symptoms increased again.
   • (c) This account of pain, which the applicant gave, is consistent (in most respects) with contemporaneous reports to medical practitioners in relation to the pain he was experiencing.
   • (d) I am satisfied the applicant is an honest witness.
   • (e) The applicant's treating doctor, who had the benefit of seeing the applicant when his condition was acute, formed the view that the applicant's pain was caused by his employment.[32]
   • (f) The assessment of the respondent's own doctor, Dr Fitzgerald, was that the applicant suffered 'an exacerbation of his symptoms related to [his work] activity'.[33] Even accepting (as I do) Dr Fitzgerald's assessment that there was no aggravation of the underlying pathology (in the sense that whatever underlying condition the applicant suffered from, it was not made worse in any permanent or significant way by the applicant's work activity), I am satisfied that the exacerbation of symptoms in the form of the onset and worsening of pain was related to the applicant's duties at the ONA.
7. Having regard to these matters and even though the deeper biological cause for the applicant's pain remains uncertain and it is unlikely that the applicant's duties at the ONA produced any alteration of the underlying physical condition - I am satisfied that the pain from which the applicant suffered at the ONA and the severity of the pain, was significantly contributed to by his duties at the ONA.
8. This then raises the question, is the applicant entitled to compensation in respect of an aggravation of symptoms without having established any exacerbation of the underlying condition in circumstances where the underlying biological cause is undetermined? In my assessment he is.
9. It is well established that an aggravation of symptoms, notwithstanding that there is no alteration of the underlying pathology, may be sufficient to amount to an injury for the purposes of the SRC Act. (see Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 at [634]; Commonwealth v Beattie [1981] FCA 88; (1981) 35 ALR 369 at 378; Tippett v Australian Postal Corporation [1998] FCA 335 at 5 [34] ('Tippett'); Mellor v Australian Postal Corporation & anor [2009] FCA 504 at [39] ('Mellor'); Comcare v Reardon [2015] FCA 1166 at [31]; Military Rehabilitation and Compensation Commission v Katterns [2017] FCA 641 at [48])
10. To determine whether the aggravation does give rise to liability it is necessary to determine whether the applicant is merely experiencing pain at work, in which case no liability arises, or whether the activities at work cause the worker to suffer pain or suffer pain more intensely. The case of Australian Postal Corporation v Bessey [2001] FCA 266 at [12] is an example in the former category. Cases such as Mellor and Tippett deal with cases which may fall into the latter.
11. The applicant, in my assessment, falls within the latter category. Prior to commencing work with the ONA he did not suffer any pain. After commencing duties he began to suffer pain. When he took time away from work his symptoms largely resolved. When he returned to work his symptoms increased again.
12. I am satisfied that the applicant's work was not a mere setting for the applicant experiencing pain. The exacerbation of symptoms described by the applicant was, to use Dr Fitzgerald's words, 'related to the activity'.[35] On the history given by the applicant, that relationship is strong. The pain did not commence in the absence of the activity and the longer the work was performed the more sustained the pain became. I am satisfied that the activities undertaken at work were a significant contributor to the applicant suffering from the pain he described. I make this finding notwithstanding the relatively short period, which the applicant was employed, the relatively non-strenuous nature of the tasks which he performed and the significant loads placed on the applicant's body by his athletic training. I reject Dr Muratore's view that the onset of pain in the workplace was purely coincidental. Such a conclusion is inconsistent with the applicant's detailed report of the association between the onset of symptoms and the performance of his duties.
13. Having determined that the applicant's duties at the ONA significantly contributed to the onset and intensity of the applicant's pain symptoms, the question then arises whether it matters that the underlying biological cause, remains undiagnosed and unidentified. In the present circumstances, my assessment is that it does not.
14. It is reasonably well established that an inability to make a diagnosis is not a barrier to a successful compensation claim. The authority generally relied upon for this proposition is the Tribunal's decision of Re Musumeci and Department of Health (1990) 19 ALD 797. That decision received qualified endorsement in the Federal Court in Australian Postal Corporation v Lucas [1991] FCA 612; (1991) 33 FCR 101 at 108, where Justice Burchett said:

I do not wish to cast any doubt upon the conclusion that, given that an incapacitating condition is satisfactorily shown, the mere fact that the diagnosis of its medical nature may not be able to be made precisely, though obviously a factor which might militate against a finding of a causal link with employment, will not necessarily present an insuperable obstacle to such a finding. It must depend upon the evidence. Nor is it to be doubted that proof of incapacitating pain may be relevant to show an aggravation.

1. In this case, notwithstanding the absence of a clear understanding of the biological cause of the applicant's pain, its link to the applicant's work is strongly established. While precise classification is difficult, the most appropriate finding given the reported history, medical reports and results of medical testing is that the applicant's duties at the ONA aggravated an underlying disease which at this point in time cannot be identified with any precision. The underlying disease does not meet the definition of an injury in the SRC Act, but the symptoms arising from the work duties do. The applicant's employment contributed to those pain symptoms to a significant degree. Given my finding that the work duties only prompted symptoms any period of liability will be necessarily limited.

1. Pursuant to section 43(1)(c)(i) of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and, in substitution determines that Comcare is liable to pay compensation to the applicant in relation to the pain symptoms which arose during his employment with the Office of National Assessments in accordance with the Safety, Rehabilitation and Compensation Act 1988.

I certify that the preceding 71 (seventy one) paragraphs are a true copy of the reasons for the decision herein of Senior Member D O'Donovan.

........................................................................

[2] Supplementary Tribunal Documents (ST-Documents) ST8.B, folio 62.

[29] Comcare v Power [2015] FCA 1502, [81]-[93] (Katzmann J).

[31] Such a conclusion is consistent with the approach adopted by Justice Gaegler in Military Rehabilitation and Compensation Commission v May [2016] HCA 19 -at [82].

[32] I note that I do not accept the correctness of the provisional diagnosis of a sportsman's hernia but the link with work found by Dr Harris is based on the history not on the organic cause of the pain.

[33] See T11, folio 48. I note that Dr Fitzgerald's full answer to the question whether the applicant's medical condition amounts to an aggravation of an underlying condition is ambiguous. However, given that he accepts that the applicant's duties exacerbated symptoms I am satisfied that for the reasons stated at [64]-[66], the correct conclusion is that the exacerbation of symptoms can amount to an aggravation for the purposes of the SRC Act, though they may not be described as such in strict medical terms.

[34] I note and accept the criticism of Justice Finkelstein's statement that "there will be an exacerbation of an injury when the experience of the injury is increased or intensified without any alteration of the underlying physical or mental condition" is an overstatement and that a further analysis is required in any given case to determine whether the statutory test has been met.