Higgins v Linfox Australia Pty Ltd  AATA
A mere increase in pain does not constitute compensable
aggravation under the SRC Act.
Mr Higgins suffered an injury as a result of a non-work related
car accident in 2010. The accident resulted in Mr Higgins suffering
a bulging disc in his neck and a partial thickness tear of the
supraspinatus tendon in his left shoulder.
On 31 March 2013, while at work, Mr Higgins was using a soft
bristled broom in his left hand to wash the back of some trucks. In
his right hand he was holding a high pressure hose. To be able to
reach all areas of the trucks, Mr Higgins had to extend his left
arm as far as he could reach while at the same time scrubbing. To
extend his reach, he also jumped as he did this, while still
holding the high pressure hose in his right arm and scrubbing with
his left. During this action Mr Higgins said that he felt a sharp
pain in his left shoulder, and stopped what he was doing
An MRI scan was performed, which identified that Mr Higgins had
a full thickness tear of the rotator cuff of his left shoulder. Mr
Higgins completed a claim for workers' compensation on 17 April
2013, for a rotator cuff tear of the left shoulder.
In a reviewable decision dated 13 August 2013, Linfox affirmed
an earlier determination finding that it was not liable to pay
compensation pursuant to section 14 of the SRC Act to Mr Higgins in
respect of his claim of 17 April 2013. Mr Higgins sought further
review at the Tribunal.
The Tribunal was required to consider two things. The first was
whether or not Mr Higgins suffered a distinct injury on 31 March
2013, arising out of, or in the course of, his employment with
Linfox. The second consideration was that if he did not suffer a
distinct injury on this date, whether he suffered an aggravation of
a pre-existing condition, arising out of, or in the course of, his
employment with Linfox on that date.
Section 14 of the SRC Act provides that an employer will be
liable to pay compensation to an employee if an injury suffered at
work results in death, incapacity for work or impairment.
Section 5A(1) of the SRC Act relevantly defines injury to mean
either a physical or mental injury that arises out of, or in the
course of, employment.
This includes an aggravation of a pre-existing condition, where
the aggravation arises out of, or in the course of employment,
whether or not the pre-existing condition arose out of, in in the
course of employment.
The Tribunal heard medical evidence from several expert medical
practitioners, but preferred the evidence of Associate Professor
Neil McGill (Consultant Rheumatologist). Associate Professor McGill
examined Mr Higgins in December of 2014, finding it unlikely the
activities of 31 March 2013 would have caused the extension of Mr
Higgins long standing rotator cuff tear or significantly aggravated
it. He considered that the activities on this date would have
caused pain in the affected shoulder, but would not have caused the
extension of the tear. The Tribunal agreed.
The Tribunal commented that when considering whether or not an
aggravation had occurred it is important to note that it is not
necessary for a pathological change to be present in a pre-existing
injury to show that an aggravation had occurred. The question that
needs to be asked is whether an aggravation has occurred if
debilitating pain is brought on by an activity arising out of, or
in the course of, employment? The question then arises as to
whether mere pain constitutes an aggravation.
The Federal Court in Commonwealth of Australia v
Beattie (1981) 35 ALR 369 considered just this. The Court gave
an analogy of an employee with a broken leg in a cast. While at
work, said employee would not be able to set his leg down without
causing some sort of pain. That pain would indeed be considered to
have arisen out of, or in the course of, his employment. However
the pain is not a case of aggravation, instead it is just that:
In Mr Higgins' case, the Tribunal relied on Associate
Professor McGill's evidence, agreeing that an aggravation did
not occur as it would not be expected that the sort of activity Mr
Higgins was undertaking would cause or significantly aggravate the
This case highlights the importance of taking each case on face
value. Although pain may in some situations be evidence of an
aggravation, it is an important lesson to note that an increase in
pain does not automatically give rise to an aggravation of a
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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