Vella and Australian Postal Corporation [1999] AATA 889 (25 November 1999)

Last Updated: 26 November 1999

DECISION AND REASONS FOR DECISION [1999] AATA 889

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S98/382

General Administrative DIVISION )

Re MICHAEL VELLA

Applicant

And AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE Ms U. Dahl (Member)

Date 25 November 1999

Place Adelaide

Decision The Tribunal sets aside the decision under review and in substitution therefor remits the matter to the respondent for assessment with the directions that: (a) the applicant's partial incapacity in respect of the accepted condition of right rotator cuff tendonitis continued up until 19 May 1998; and

(b) the applicant's condition of lateral epicondylitis is compensable, being an "injury" pursuant to s.4 of the Safety, Rehabilitation and Compensation Act 1998, and such condition has caused ongoing partial incapacity from 19 May 1998. The Tribunal, pursuant to s.67 of the Safety, Rehabilitation and Compensation Act 1988, orders that the respondent pay the applicant's costs. In the absence of agreement between the parties, costs are to be taxed by a District Registrar or Deputy District Registrar and liberty to apply is reserved to both parties.

(Signed)

J.A. KIOSOGLOUS

(Senior Member)

CATCHWORDS

COMPENSATION - whether continuing incapacity from shoulder condition - lateral epicondylitis - whether related to employment - discussion of "disease" and "injury" - causation - temporal connection - credit of applicant - medical assessment

Safety, Rehabilitation and Compensation Act 1988 ss.4, 67

Zickar v MGH Plastic Industries Pty Ltd (1996) 140 ALR 156

Australian Postal Corporation v Burch (1998) 156 ALR 483

REASONS FOR DECISION

25 November 1999 Senior Member J.A. Kiosoglous MBE Ms U. Dahl (Member)

1. This is an application by Mr Michael Vella (the applicant) for review of a decision of a reconsideration officer of the respondent dated 17 September 1998 (T29) which revoked the determination dated 3 June 1998 (T15) and accepted the shoulder injury for a closed period, and affirmed the decision dated 30 June 1998 (T21), denying liability in respect of the elbow condition.

2. The Tribunal received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T32) and supplementary documents (ST1-12), together with 31 exhibits, 11 lodged by the applicant (Exhibits A1-A11) and 20 lodged by the respondent (Exhibits R1-R20). In addition, the Tribunal heard evidence from the applicant, who also called Dr R. Faggotter, General Practitioner, and Dr G. Champion, Consultant Rheumatologist. The respondent called as a witnesses Dr M. Awerbuch, Consultant Rheumatologist, Dr G. Graham, Occupational Physician, Mr T. Standley, Delivery Manager, Mr P. Bartolo, Delivery Manager, Ms J. Henricks, Rehabilitation Counsellor, Ms M. Payne, Rehabilitation Counsellor, Ms C. Watt, Manager Network Support, and Mr S. French, Team Leader. The applicant was represented by Mr G. Harbord and the respondent was represented by Mr S. Stretton, both of counsel.

3. The issues before the Tribunal are whether or not the applicant's employment materially contributed to his condition of right lateral epicondylitis or whether such condition is an injury arising out of his employment; whether the applicant's condition of right rotator cuff tendonitis ceased on 7 May 1998 or is ongoing; whether either condition has resulted in incapacity for work; and, what, if any, medical treatment the applicant requires in respect of the said conditions.

history of the application

4. The applicant was born on 31 May 1956. He commenced employment with Australia Post in December 1972 and has remained so employed ever since.

5. The applicant is and has been employed as a postal delivery officer. The work of a postman ordinarily involves:

(a) Breaking down the mail

Breaking down the mail involves taking the mail from postbags and then breaking it down or sorting it into distinct areas. Each postman is assigned a particular area and the object of breaking down is to do a first sort to ensure that the post is distributed into correct areas. Mail is taken from the general bags and then placed in each individual's major bin, or if mail that belonged to the round conducted by the applicant, he would place it into an area within a frame that confronted him.

The mail is subsequently sorted from there into pigeonholes representing various streets.

When the applicant started working the frames contained 50 pigeonholes. They were later increased to contain 60 pigeonholes. Breaking down the mail and then sorting it would involve constant handling of the letters. Essentially they would be placed like dealing cards into the varying pigeonholes. A frame was approximately 4'6" in width and 5'8" in height. The applicant is approximately 5'7" in height.

Second class mail, which includes newspapers and magazines, would be dealt with in a similar way but in a different area with much bigger pigeonholes. Breakdown of mail and sorting would usually take about one hour to 90 minutes.

(b) Sequencing mail

The sequencing of mail involves taking the mail within the delivery route of the postman from the particular pigeon holes and then sequencing it so that if the street runs from number 2 to number 70, then mail for delivery commences at number 2 and finished at number 70. Sequencing used to take about an hour to an hour and a half.

(c) Subsequent to sequencing

The mail would then be bundled into lots in order to be placed in the postbag for delivery.

(d) Delivery

Mail would then be delivered by the applicant and other postmen. With large items this involved folding and compressing the mail into a size that would fit through the letterbox and leaning forward and pushing away from the body to force it through the letterbox slot.

6. The applicant's work today involves essentially the same activity. He would ordinarily commence work at 6:00 am. There is now more mail and there is a lot more household advertising mail. Advertising mail does not create a problem for sequencing or sorting because it is delivered as a separate item. It does, however, often require compressing and involves postmen in the compressing and pushing motion whilst delivering.

7. The applicant first experienced discomfort with his right elbow approximately ten years ago. He used to particularly experience stiffness and tiredness whilst working in the breakdown phase. It was not a persistent problem. He would notice it if he tried to throw a ball or took his dog for a walk. At that time the applicant would periodically break down and/or sort left-handed. There was less pressure then in terms of time. When increased pressure was applied to manage a greater number of items within a fixed time the applicant resumed more constant use of his right hand.

8. The applicant for a number of years had some periodic aching in his right shoulder. It was more in the nature of stiffness than pain or discomfort. It was much the same as his right elbow in terms of stiffness. It would loosen up with activity. The applicant associated the shoulder symptoms with both the breaking down work and the sorting of the mail into pigeonholes.

applicant's evidence

9. In oral evidence the applicant told the Tribunal that he first noticed pain ten years ago in his shoulder and elbow. He stated that he first noticed the pain when he was unable to throw a ball for his dog, due to soreness in his elbow. His elbow was also stiff from holding a dog leash in his hand, although this pain eased after a while.

10. In relation to his shoulder, he stated that he had noticed pain ten years ago when the mail was heavy, and that he would get a dull, heavy ache in his shoulder, and that throwing mail into the pigeonholes would cause problems.

11. He told the Tribunal that he had changed his action at that time to place letters on the table instead of in the frame, but had stopped this practice eight years ago with the introduction of the DAS system.

12. The applicant described the duties required of him; breaking down, sorting, sequencing and delivery, and also demonstrated these actions to the Tribunal. Delivery consists of approximately 800-900 letters including 100-150 large items, which the applicant told the Tribunal often have to be forced into letterboxes and pigeonholes during sorting. He told the Tribunal that he believes there is quite a bit of force involved in the actions required of his job.

13. He also described the gym work he undertook in the two years prior to 1998, which was mainly light weights and legwork. He stated that he has not walked the dog for two years, and could not recall knocking his elbow at any time at work or outside work.

14. The applicant stated that he injured his neck in January 1998, which was resolved by physiotherapy. He told the Tribunal that he had more pain in his shoulder at the start of 1998, and a sharp pain whilst on his delivery rounds. He gave evidence that the pain got progressively worse through March 1998 and that on 16 April 1998, severe pain in his shoulder whilst throwing mail, meant that he was unable to move his shoulder for 15 minutes.

15. He stated that his duties were altered in April and May 1998 as a result of his shoulder injury, which had resolved by mid-May, at which time the applicant stated it was "much better". He stated that on 7 May 1998, it had pretty much resolved, and only produced a dull ache, depending upon his workload, and that this was still the case.

16. In relation to his right elbow, the applicant stated that from 8 May 1998 onwards, as he returned to increased hours according to the plan decided on 7 May 1998, the pain in his elbow became progressively worse and that on 19 May 1998, he had severe sharp pain whilst sorting mail with his right hand, at which time he reported to Mr T. Standley and attended Dr Faggotter's surgery. He stated that he was told not to put in a separate claim for his elbow at this time, and only became aware of the need for a separate claim at the time liability was denied in respect of the shoulder injury.

17. He stated that the aching in his elbow and forearm is continuous, and some relief was obtained through the use of anti-inflammatories, a brace, physiotherapy and acupuncture. He stated that the pain was consistent from May 1998 for the rest of that year, and increased upon his return to work in 1999. He told the Tribunal that the aching is better in 1999 due to a reduction in his hours and continued physiotherapy, but that the pain was still worse than the period in May 1998 prior to 19 May 1998.

18. He stated that he has difficulty with household duties, and cannot perform full duties at work due to the repetitive lifting causing his shoulder and elbow to ache. He told the Tribunal that "throwing in" mail was especially bad on his elbow.

19. He stated that he had been mistaken as to the dates he put on the claim forms (T16 and 17), and that the incident in relation to his elbow occurred on 19 May 1998.

other witnesses

mr t. standley

20. Mr T. Standley, Delivery Manager, prepared an undated statement (Exhibit R15) in which he stated (inter alia):

"...

Mr Vella did not notify me that he had symptoms concerning his right elbow at work on 10 or 12 May 1998. I first became aware of Mr Vella's elbow condition on Tuesday at 9.00 am on 19 May 1998. I recall that I wrote a note to Julienne Henricks, his rehabilitation case manager at the time stating that Mr Vella had a relapse on this date and that it was not so much in his shoulder but this time in his right elbow. Up until this time, I was only aware that Mr Vella said he was suffering from a shoulder condition so I decided to accompany him when he consulted Dr Faggotter to see what the problem was with his elbow. I recall that at 11.15 am on 19 May I discussed with Dr Faggotter Mr Vella's injury and what his work requirements were etc.

..."

21. In oral evidence, Mr Standley stated that he could not remember what the applicant told him on 19 May 1998.

22. He stated that he had offered the applicant alternative duties, including clerical duties.

mr p. bartolo

23. Mr P. Bartolo, Delivery Manager, prepared an undated statement (Exhibit R16) in which he stated (inter alia):

"...

I recall that when I first started as delivery manager at Unley I would make a habit of asking Mr Vella how his elbow was and it was only at these times that he would complain about discomfort in his forearm and elbow and at one stage he informed me that his doctor said that he should get a brace for the elbow. I recall arranging Australia Post to purchase a brace for him and Mr Vella said that it improved his elbow condition a little bit.

I recall that I held discussions with Mr Vella leading up to Christmas regarding him taking recreation leave in December to minimise the chances of him worsening his elbow condition during the very busy period leading up to Christmas. I said that if he obtained the approval from his doctor to take his recreation leave during this time that he should go for it.

At this time, I also discussed the possibility of Mr Vella taking up a position in night sorting as I thought this would benefit him as it was different and easier work and he would be able to take longer breaks. However, Mr Vella felt that this could aggravate his injury and that his social life would suffer from working at night.

I recall that Mr Vella was able to perform the restricted duties as set out in his return to work plans quite successfully. At times I queried his performance. Often Mr Vella told me I could not question his performance while he was "on rehab". When questioned, Mr Vella would not give any reasons why he was not meeting the requirements of his return to work plan, but instead he would merely reply that he physically could not do the work. At times it was like talking to a brick wall.

...

I have held discussions with Mr Vella to try to work out suitable duties for him to do within Australia Post. We have discussed at length job options for him within Australia Post, however, he never suggested any jobs which he feels would be appropriate for his condition. I have asked him what his interests are and where he sees himself in the next five years and have tried to get him to take some responsibility with his employment, however, he has repeatedly said words to the effect that it is not up to him to find suitable work but for people like myself to put Mr Vella into an appropriate job within Australia Post.

..."

24. In oral evidence, Mr Bartolo stated that he put pressure on the applicant when he believed his work performance was not up to acceptable standards for someone with his disabilities. He told the Tribunal that he had explored other options for the applicant such as night sorting and working in the call centre, but that the applicant had not been receptive to these possibilities.

25. He stated that he had concerns as to Dr Faggotter's objectivity, and fielded concerns from other staff as to the applicant's work standards.

ms j. henricks

26. Ms J. Henricks, a former Rehabilitation Counsellor, prepared a statement dated 22 September 1999 (Exhibit R17) in which she stated (inter alia):

"...

From the time of opening the case it became imperative to establish a clear diagnosis and medical guidelines to progress Mr Vella to a return to normal duties. From 5 May his sorting duties were limited to two hours onto the desk, no tasks at all above shoulder height, he was instructed to get help lifting trays or placing letters into top rows. Delivery was also rescheduled to two hours with clerical work for additional hours. Mr Vella was requested to report any increase in pain levels in order to gauge what tasks may have an impact on the pain levels.

It is my belief that within a few days his outside duties were reduced by Dr Faggotter. Medical guidelines set by Dr Faggotter were reflected in all return to work planning. When return to work plans were devised in direct consultation with this general practitioner, the worker and management, they were often subject to regressive change before the plan was given a trial. This made rehabilitation planning and progress toward normal duties difficult.

At the initial stages of rehabilitation the focus was on reducing the activities Mr Vella undertook, especially using his right shoulder, and his duties generally. Mr Vella saw a specialist, Dr Awerbuch. Dr Awerbuch could not identify any problem in the vicinity of Mr Vella's right shoulder which would preclude a return to normal duties.

..."

27. In oral evidence, she told the Tribunal that the applicant was mainly using his left arm when she saw him on light duties in May 1998. She stated that she had followed Dr Faggotter's return to work program and could not depart from such a program. She stated that she came up with ideas for alternative duties such as clerical duties, but that the applicant was not receptive to exploring such alternatives.

ms m. payne

28. Ms M. Payne, Rehabilitation Counsellor, gave evidence as to a number of conversations she had with the applicant, and stated that she was surprised that the applicant did not get better, especially since he had medical certificates which allowed him to perform increased hours.

29. She stated that the applicant did not tell her that the hours at work aggravated the pain of his elbow condition, but he did tell her that he was unable to paint at home due to the hours he was required to do at work.

ms c. watt

30. Ms C. Watt, Rehabilitation Counsellor, gave evidence that her role was to observe the applicant to see if he was able to perform his work duties, and that the applicant had not told her that overuse of his left elbow lead to increased pain.

31. She told the Tribunal that it had been several months since she saw the applicant, as she was awaiting the outcome of the Tribunal proceedings.

mr s. french

32. Mr S. French, Team Leader, gave evidence that the applicant told everyone at work that his shoulder hurt, but stated that he had never made a direct complaint to him about the shoulder.

33. He demonstrated the actions involved in the applicant's job to the Tribunal, including a bending of the elbow and overarm throwing action. He stated that although the frames changed three months ago, the actions remain essentially the same.

medical evidence

dr r. faggotter

34. Dr R. Faggotter, General Practitioner, has been the applicant's treating doctor for the last two years.

35. He prepared a report dated 7 May 1998 (T11) in which he stated (inter alia):

"Mr Vella presented on 16/4/98 with right shoulder pain which had been getting steadily worse over a period of a month or so. This was clearly a rotator cuff tendonitis of the right shoulder joint, caused and exacerbated by sorting mail, especially above shoulder height. ...

..."

36. In a second report dated 24 August 1998 (Exhibit A6), he stated (inter alia):

"...

When I saw him on 16/4/98 he was clearly suffering from a painful right shoulder with a painful arc. This was clearly exacerbated by his work and on the balance of probabilities was caused by his work. This problem also progressively improved so that by the time he saw Dr Awerbuch on 7/5/98 the pain and restriction had substantially diminished to the point where Dr Awerbuch naturally found no objective evidence of injury. Dr Awerbuch did not at any point in his report state that there had never been an injury or that a work related problem had not occurred, especially when he says in his letter "Any condition from which he may have previously suffered was self-evidently of a temporary nature", thus recognising the possibility that there could have been objective evidence of injury at an earlier point. Mr Michael Dunbar in his letter of 3/6/98 states that "I have preferred the opinion of Dr Awerbuch to that of Dr Faggotter." How can this be when Dr Awerbuch saw Mr Vella 3 weeks after his initial presentation at the point when Mr Vella had improved to the extent that there was a lack of objective evidence of injury - this is not a basis for saying that an injury never existed.

..."

37. In oral evidence in support of his reports, Dr Faggotter told the Tribunal that the applicant had elbow problems prior to 1998, but that it was a matter of degree, and that the problem got significantly worse in May 1998.

38. In relation to the shoulder, Dr Faggotter stated that the applicant had progressively increasing pain prior to attendance at his surgery on 16 April 1998, and he attributed the problem to the repetition and force required in the applicant's work. He stated that he had reduced the applicant's work hours as a result of this injury. He told the Tribunal that he had recorded the shoulder as being 80% better on 7 May 1998, and that it had substantially improved but was subject to fluctuation. He conjectured that it was most likely the applicant could do his full range of duties as from December 1998 but for his elbow problem.

39. In relation to the elbow, Dr Faggotter stated that the pathology of lateral epicondylitis is not fully understood, but is possibly microtears worsened by force and repetition which become chronic at the epicondi. He told the Tribunal that in his opinion, work was the cause of the problem. He stated that the problem was worse in May 1998, as the applicant's shoulder problem meant that he was more reliant upon his elbow and wrists in performing his work activities. He cited in particular the repetitious wrist movements and forcing of mail into letterboxes as being causative. He gave evidence that in his opinion, the majority of the medical profession supported his position, which accorded with his own clinical experience and most medical literature.

40. He stated that a change in the applicant's work duties might resolve the problem with the applicant's elbow. He further stated that the gym activities described could result in injury, but would not in themselves result in chronic lateral epicondylitis.

dr g. champion

41. Dr G. Champion, Consultant Physician/Rheumatologist, saw the applicant on 26 October 1998. He prepared two reports. In the first report dated 26 October 1998 (Exhibit A4), he stated (inter alia):

"Herewith my reply to your correspondence of 21 September 1998 regarding the above. The worker requested a second opinion regarding his elbow injury. I am of the opinion that he has a clear work-related injury, and do not feel one can relate his symptoms as being age-related and a normal concomitant to aging. He is clearly in an occupation where lateral epicondylitis and rotator cuff tendinitis would be quite common, and unfortunately has a recalcitrant lateral epicondylitis from which he is not going to improve. I feel that if he continues performing his current duties, he is likely to have ongoing problems.

...

I have no doubt whatsoever that this worker's activities as a Mail Sorter prior to him commencing his postal delivery run are responsible for two occupational injuries; that of a recalcitrant right lateral epicondylitis and a rotator cuff tendinitis of the right shoulder (basically now resolved). Tennis elbow is such a common occupational injury that I cannot see how Australia Post could deny that the work is responsible.

...

If one was to postulate that this was purely a degenerative process and age-related, then why would he have had it eight years ago when he was younger and under normal circumstances a degenerative condition would not have occurred. It is therefore, in my opinion, work-related."

42. In the second report dated 3 January 1999 (Exhibit A5), he stated (inter alia):

"...

It is purely on current epidemiological data that there is insufficient evidence to support an association between repetitive work only and lateral epicondylitis. No studies having repetitive work as the dominant exposure factor meet appropriate statistical data to support repetitive work only as the causation of epicondylitis. The difficulty with epicondylitis is that there are a number of other factors which are involved in it's causation. These include postural changes and forces applied to the elbow, forearm and hand. There is strong evidence of a relationship between exposure to a combination of risk factors (eg force and repetition, force and posture) and epicondylitis. Strong evidence for a combination of factors is consistent with evidence found in the sports and biomechanical literature.

...

However, one can state that overall the majority of the epidemiological studies is supportive of the hypothesis of an increased risk of epicondylitis in occupations that involve forceful and repetitive work, frequent extension, flexion and supination, and pronation of the hand and forearm.

In summary, the combination of biological plausibility of damage to the extensor tendon, studies with quantitative evaluation of exposure factors indicating a strong association, and considerable evidence of the occurrence from a combination of factors at high levels of exposure, provide evidence for the association between repetitive forceful work and epicondylitis.

...

In Mr Vella's case, he has had to perform repetitive work but there are other factors which contribute to epicondylitis including posture as well as forces involved with repeated twisting of the forearm. He has to bind up mail, and stand and sort the mail, and disregarding the repetitive nature of his work, nevertheless the posture and binding of the mail could themselves be risk factors for the development of lateral epicondylitis. ...

One must also indicate that Dr Awerbuch's opinion is not in keeping with standard conventional medical thinking regarding lateral epicondylitis.

The standard rheumatological and orthopaedic literature indicates a contrary view to that of Dr Awerbuch and most authorities indicate that in particular occupations there is an increased incidence of lateral epicondylitis and a causation from certain jobs. In Mr Vella's case, I think there is a high likelihood that the repeated twisting of his forearm, the various posturing that was required, and the binding of the mail have all contributed to a chronic lateral epicondylitis. ..."

43. In oral evidence in support of his reports, Dr Champion told the Tribunal that the ultra sound report (Exhibit R7) supported his diagnosis of lateral epicondylitis. He told the Tribunal that he considered the article (Exhibit A9) to be authoritative. He gave evidence that lateral epicondylitis is not often encountered away from work in his experience.

44. He stated that his opinion was that the applicant's lateral epicondylitis was work caused as a result of the repetitive sorting action, but that such a condition cannot only be related to one particular task. The condition of lateral epicondylitis is so specific a diagnosis that it cannot arise due to psychological factors alone. In this case there is pathological evidence.

45. He told the Tribunal that in his opinion, standard rheumatological opinion differed from Dr Awerbuch's, and pointed out that Dr Awerbuch had indicated that the applicant should alter his work duties. He agreed, in cross-examination, that there is much dispute as to causation in the literature, and that it can arise from factors unrelated to work, but was nevertheless of the opinion that in Mr Vella's case there was an acute exacerbation at work.

46. He told the Tribunal that in his opinion, this was an aggravation of a degenerative condition, and that age is not the only factor. He stated that this is an injury not a disease, as it arises from an acute event, and specific incidences which cause the precipitating factors.

47. He told the Tribunal that the article (Exhibit R5) is flawed as all patients had cortico-steroidal injections which would alter the results.

dr m. awerbuch

48. Dr M. Awerbuch, Consultant Physician in Musculoskeletal Disorders and Rheumatology, saw the applicant on three occasions in 1998. He prepared four reports. In the first report dated 13 May 1998 (T12) he stated (inter alia):

"...

1. Currently Mr Vella has no objective clinical evidence of unresolved injury to the right shoulder nor indeed to any part of the right upper limb nor of the cervical spine. As indicated above, an ultrasound of the right shoulder was normal.

3. [sic] In the absence of any diagnosable medical disorder it is not possible to logically address the issue of causation. One can only speculate on what the cause of Mr Vella's previous shoulder pain might have been but as I have indicated, he currently has no discernible deviation from the clinical norm.

4. Any condition from which he may have previously suffered was self-evidently of a temporary nature as the condition would appear to have resolved without sequelae.

5. No treatment is required.

6. No restrictions need be placed on his employment and he is considered to be now fit to return to his normal duties without restrictions."

49. In the second report dated 4 September 1998 (T28) he stated (inter alia):

"...

4. The condition could have developed in a matter of a few days without any specific incident of trauma. As pointed out in a benchmark text on occupational musculoskeletal disorders "from 1% to 3% of the adult population will carry the diagnosis of epicondylitis at some point during their lives, usually between ages 40 and 60" (Hadler NM. Upper extremity regional illness in: Occupational musculoskeletal disorders 1993; Raven Press, New York. With respect to the cause of lateral humeral epicondylitis, the same text points out that "in fact, the vast majority of cases have no biomechanical association, let alone an association with avocation or vocation" (Ibid). The significance of age-related changes in the development of humeral epicondylitis is highlighted in a recent study which compared histological changes in rotator cuff degeneration to those of lateral humeral epicondylitis and found that "the similarity of the changes with age in the rotator cuff and tennis elbow in disease suggests a similar mechanism producing fibrocartilaginous change". This same study noted that humeral epicondylitis was "infrequently seen before middle age" (Chard MD et al. Rotator cuff degeneration and lateral epicondylitis: A comparative histological study. Ann Rheum Dis 1994; 53: 30-34).

..."

50. In the third report dated 25 February 1999 (Exhibit R3) he stated (inter alia):

"...

Dr Champion notes that Mr Vella has been a postal delivery worker for 26 years during which time he has sorted mail. One might have reasonably thought that if there had been something noxious in the nature of his work activities then he would have developed humeral epicondylitis long before he apparently did. As indicated in my first report (13/5/98 which was based on an examination of Mr Vella on 7/5/98), there was no suggestion at that time of his having humeral epicondylitis. Rather, it appears that this is something of which he became aware on 12/5/98 and for which he consulted Dr Faggotter on 19/5/98. This was at a time when he was on light duties as a consequence of his shoulder problem. This is hardly compelling evidence of injury as a result of many years of repetitive work. ...

...

Dr Champion has raised a number of issues regarding causation suggesting that there is "strong evidence of a relationship to an exposure to a combination of risk factors (eg force and repetition, force and posture) and epicondylitis", but provides no evidence in support of this. He suggests that it is "recognised that the highest incidence of epicondylitis, based on surveillance data does occur in occupations which are manually intensive and require higher work demands in dynamic environments, eg mechanics, construction workers and boilermakers". Again he adduces no evidence in support of this opinion. When one eliminates the variable of age, it is often the case that the incidence of humeral epicondylitis turns out to be no greater than in those individuals not performing "manually intensive" work. ...

...

I do not accept the suggestion that my opinion is "not in keeping with standard conventional medical thinking regarding lateral epicondylitis". As indicated, none of the above reviews support a causal relationship between lateral epicondylitis and repetitive work activities."

51. In the fourth report dated 13 September 1999 (Exhibit R4) he stated (inter alia):

"...

Mr Vella has indicated that when he delivers mail he uses mainly his left arm. As further indicated in the body of my report, Mr Vella described having had three cortisone injections at a time when he was on his annual leave despite which pain in his elbow appears to have recurred quite spontaneously. This does not argue in favour of his condition being work-related. Had this been the case then one might have expected the recurrence to have occurred when he resumed his putative work activities. Given the well-recognised excellent prognosis of lateral humeral epicondylitis, it is difficult to explain why his condition should have (a) worsened despite a range of treatments, work modification and a significant reduction in his working hours and (b) recurred before he returned to work after improving following the cortisone injections.

...

In summary, this latest consultation with Mr Vella serves to reinforce my view of the unlikelihood of his humeral epicondylitis being work-related. Indeed, I recently came across a histopathological study on humeral epicondylitis which provides further evidence that the condition is a degenerative disorder rather than being the result of an inflammatory process (Regan W et al. Microscopic histopathology of chronic refractory lateral epicondylitis. Am J Sportsmed 1992; 20: 746-749). This study would be supportive of the view that lateral humeral epicondylitis is in fact a degenerative disease rather than an injury.

..."

52. In oral evidence in support of his reports, Dr Awerbuch told the Tribunal that in relation to the shoulder, there was no objective clinical evidence upon examination and in the absence of such evidence, he concluded that there was no problem.

53. He told the Tribunal that the applicant had not told him at any of the consultations that he had a ten year history of elbow pain. He told the Tribunal that activities such as gym, weight lifting and throwing a tennis ball could be causative of lateral epicondylitis.

54. He stated that it is force, not repetition that causes the pathology of lateral epicondylitis, and that it can occur without force, but just as a degenerative process, and can happen spontaneously. Force is a constant factor, and must accompany either repetition or posture for those factors to be said to be causative. Repetition or poor posture without force associated, will not be causative in Dr Awerbuch's opinion.

55. He stated that it was normal to feel physical discomfort with physical activity, and that it was unlikely work aggravated the applicant's condition. He stated that material contribution to the underlying problem would require direct trauma to the elbow, or a memorable event.

56. Dr Awerbuch told the Tribunal that it was the "slingshot type action" in throwing a ball that could materially contribute to such a condition, and that what was important is the full extension of the arm. He distinguished this action from a throwing action where the arm is not fully extended, and demonstrated both actions to the Tribunal.

57. He stated that lateral epicondylitis is a disease and not an injury, and that his opinion was in line with mainstream medical opinion.

dr g. graham

58. Dr G. Graham, Occupational Physician, saw the applicant on two occasions, and also visited his worksite. He prepared five reports. In the first report dated 28 May 1998 (T13) he stated (inter alia):

"...

I could detect no significant problem in his right shoulder and Dr Faggotter agreed that this problem had resolved. Mr Vella did however have clear evidence of a lateral epicondylitis of the right elbow. The exact cause of this is unclear.

The treatment for lateral epicondylitis is first avoidance of aggravating activities (gripping and other forceful use of the right hand) and the use of an anti-inflammatory gel. If this does not settle the symptoms rapidly I would commence some physiotherapy treatment and if his symptoms persist I would consider infiltration of the lateral epicondyle with steroid.

..."

59. In the second report dated 21 July 1998 (T23) he stated (inter alia):

"...

Overall I felt that Mr Vella was improving adequately, taking care with his activities but carrying out the majority of his duties. I would encourage him to resume use of the pushbike for delivery and when he is confident that this is not likely to aggravate his elbow I would reintroduce initial sorting of letters and parcels."

60. In oral evidence in support of his reports, Dr Graham stated that he was not told by the applicant that he had a 10 year history of elbow pain.

61. He stated that it was his role to establish the appropriate duties for the applicant.

62. He told the Tribunal that upon examination on 27 May 1998, there was no objective evidence of a problem with the applicant's shoulder, leading to his conclusion that there was no significant shoulder problem.

63. In relation to lateral epicondylitis, he stated that causation is most likely either simple degeneration, force and posture combined, or force and repetition combined. He stated that he considers it to be an injury, but that this is not his specialty. He stated that for a person with the problem, they should avoid gripping and forceful use of the limb, but that none of the applicant's duties were of great concern to him.

64. He stated that the applicant's duties may cause symptoms and discomfort as a result of his lateral epicondylitis, but that such duties would not contribute to the underlying cause. He told the Tribunal that in his literature search, he could not find a consensus, and there were only anecdotal or non-tested studies available.

medical literature

65. The Tribunal was referred to a large array of medical literature, from which it extracts the following information.

musculoskeletal disorders and workplace factors (exhibit a11)

"CHAPTER 4

Elbow Musculoskeletal Disorders (Epicondylitis): Evidence for Work-Relatedness

...

There is strong evidence for a relationship between exposure to a combination of risk factors (e.g., force and repetition, force and posture) and epicondylitis. Based on the epidemiologic studies reviewed above, especially those with some quantitative evaluation of the risk factors, the evidence is clear that an exposure to a combination of exposures, especially at higher exposure levels (as can be seen in, for example, meatpacking or construction work) increases risk for epicondylitis. The one prospective study which had a combination of exposure factors had a particularly high incidence rate (IR=6.7), and illustrated a temporal relationship between physical exposure factors and epicondylitis.

The strong evidence for a combination of factors is consistent with evidence found in the sports and biomechanical literature. Studies outside the field of epidemiology also suggest that forceful and repetitive contraction of the elbow flexors or extensors (which can be caused by flexion and extension of the wrist) increases the risk of epicondylitis.

Epidemiologic surveillance data, both nationally and internationally, have consistently reported that the highest incidence of epicondylitis occurs in occupations and job tasks which are manually intensive and require high work demands in dynamic environments - for example, in mechanics, butchers, construction workers, and boilermakers.

Epicondylar tenderness has also been found to be associated with a combination of higher levels of forceful exertions, repetition, and extreme postures of the elbow. This distinction may not be a true demarcation of different disease processes, but part of a continuum. Some data indicate that a high percentage of individuals with severe elbow pain are not able to do their jobs, and they have a higher rate of sick leave than individuals with other upper extremity disorders.

...

The evidence for epicondylitis in the biomechanical and sports literature does not address repetition alone, but has consistent evidence with a combination of forceful exertion, awkward or extreme postures, and repetitive movements.

...

Overall, the majority of the epidemiologic studies are supportive of the hypothesis of an increase risk of epicondylitis for occupations that involve forceful and repetitive work, frequent extension, flexion, supination, and pronation of the hand and the forearm.

...

There is epidemiologic evidence for the relationship between forceful work and epicondylitis. Those studies that base their exposure assessment on quantitative or semiquantitative data have shown a solid relationship. We conclude that there is insufficient evidence for the association of repetitive work and epicondylitis. For extreme posture in the workplace, the epidemiologic evidence thus far is also insufficient, and we turn to the sports medicine literature to assist us in evaluating the risk of the single factors of repetition and posture. The strongest evidence by far when examining the relationship between work factors and epicondylitis is the combination of factors, especially at higher levels of exposure. This is consistent with the evidence that is found in the biomechanical and sports literature."

occupational injuries of the elbow (exhibit a10)

"Although work-related elbow injuries represent a small percentage of total work injuries, their incidence is significantly increased when rapid and repetitive arm motion, particularly in the wrist and fingers, is involved.

...

Lateral epicondylitis is the commonest form of cumulative trauma disorder at the elbow. In industry it is usually associated with repeated gripping activities, particularly if the elbow is extended and the wrist flexed. Repeated forced supination and the presence of vibration also seem to be instigating or aggravating factors.

..."

rheumatology (exhibit a9)

"...

Age is an important factor, since lateral epicondylitis occurs before the age of 30 years. ... The onset of symptoms may be brought on by overuse and hence lateral epicondylitis is more often seen in active middle aged rather than the less active elderly. In manual workers the relative overuse of wrist and finger extensors may precipitate the condition, which most often affects the dominant arm.

..."

editorial "tenosynovitis" (exhibit r14)

"...

There is also a strong need for investigative work to be done on the causative factors behind such common problems as trigger fingers, de Quervain, and tennis elbow ... it is commonly stated that such disorders are the result of repetitive work, but there is no published analytical work to support such contentions, most comments on the causation of, for example, de Quervain's tenovaginitis stenosans being of the apocryphal variety. ..."

the journal of hand surgery/vol.20a (exhibit r13)

"...

It is very difficult to state that work causes a problem without considering the multifactorial nature and epidemiology of the problem. Other contributing factors may be anatomy, personal response to trauma, medical conditions, psychosocial issues, and hobbies/leisure activities. It is difficult to measure and assess these other contributing factors. It also would be worthwhile to evaluate individuals who work and do not complain.

...

The government and other agencies will not be effective if they continue to place blame erroneously on the physical stresses of the work place for life's varied physical ailments. We feel it is reasonable to assume that work may contribute to feelings of discomfort. However, it is not reasonable or possible to make jobs absolutely pain-free. Other physical activities are not without physical discomfort, for example, housekeeping, child rearing, hobbies, and sports. If a job is the sole or main contributing factor of physical ailments, why do similar plants, in different geographic locations, demanding the same types of job activities have different incidences of disorders and complaints? What is the psychosocial environment of the plants, cities, or states? Are other confounding factors present in the way different doctors diagnose and treat?

...

It is the authors' opinion that sufficient evidence does not exist in the medical literature to conclude that work is the sole cause of so-called "cumulative trauma". Mislabeling a patient's complaints and mistakenly relating these complaints to work is harmful.

..."

the journal of hand surgery /vol.22a (exhibit r12)

"...

Regional musculoskeletal disorders are a part of life. The likelihood of experiencing such morbidity is not a function of physical exposure for the wide range of exposures in the many industrial settings that have been studied. In these settings, regional musculoskeletal disorders represent a challenge in coping for the worker who is hurting and a challenge for management to eliminate barriers to coping. We need to assure that workplaces are comfortable when we are well and accommodating when we are ill. It follows that while a single worker who finds he or she cannot cope with regional arm pain is a challenge to the empathy of industrial management, a workforce so afflicted is a reproach.

..."

occupational musculoskeletal disorders (exhibit r11)

"...

ELBOW PAIN

...

In fact, some 15% of us can recall a week of elbow pain or recurring elbow pain last year, whether or not we are employed in tasks demanding of elbow function. Some 1% to 3% of the adult population will carry the diagnosis of epicondylitis at some point during their lives, usually between ages 40 and 60. People with lateral epicondylitis have difficulty hitting a tennis ball with a top-spin backhand, but we have no clue as to why they suffer lateral epicondylitis in the first place. In fact, the vast majority of cases have no biomechanical association, let alone an association with avocation or vocation ... "

applicant's submissions

66. On behalf of the applicant Mr Harbord submitted that in respect of the right shoulder injury, although the evidence suggested that it was much better, it had not been tested as to the effect working full hours would have, and that a partial incapacity therefore remained.

67. In respect of the right elbow injury, he submitted that, on the balance of probabilities, the work duties of the applicant were a cause of the applicant's condition. He submitted that it is a physical injury caused by work and that it was clear that it built up over time and became severe on 19 May 1998, at which time the applicant reported to Mr Standley, who accompanied him to Dr Faggotter. In the alternative, he submitted that the Tribunal could find it to be an aggravation of a degenerative condition arising out of work, or a disease, materially contributed to by work.

68. He submitted that the nature of the injury was the rupturing of tissue and that the continuous repetitive use of the right arm, bending of the right elbow and force involved in the applicant's job were the obvious cause of the condition.

69. He sought to distinguish Dr Awerbuch as being inconsistent, and in respect of the applicant's credit, submitted that he was a poor historian but honest in other respects.

70. He also put a number of submissions as to the legal definitions of disease and injury, to which the Tribunal will turn in due course.

respondent's submissions

71. Mr Stretton submitted, on behalf of the respondent, that it was clear the shoulder injury had resolved by 7 May 1998.

72. He submitted that, on the evidence, the elbow condition occurred at home, with the initial pain being some ten years ago. He further submitted that the applicant's credit was in issue as to the actual onset of pain.

73. In respect of credit and the alleged work connection, he submitted that the claim was only made once the shoulder claim failed, that the applicant was inconsistent as to the date of onset, was on light duties at the time of alleged onset, and had given evidence as to a number of other factors causing pain including gym work, throwing and holding a dog leash which could be causative and were not work related.

74. On the medical evidence, he submitted that Dr Faggotter demonstrated clear bias, and Dr Champion had only examined the applicant on one occasion. He submitted there were inconsistencies in the applicant's evidence and that factors apart from work were the clear cause of the applicant's condition.

75. He also made submissions on the law regarding the injury/disease question to which the Tribunal turns below.

discussion and findings

76. The issues for the Tribunal then, are whether there is continued incapacity in respect of the right shoulder, and whether there is a connection between the right elbow condition (which it is conceded the applicant does suffer from) and his work. The nature of that connection depends upon what legal test is deemed appropriate.

77. Turning first to consider the shoulder injury, the Tribunal notes that on the applicant's own evidence, it only produces a "dull ache" depending on his workload and had pretty much resolved by 7 May 1998. Dr Faggotter stated that it was subject to fluctuation, but that from December 1998, he could probably do his full range of duties but for the elbow. Dr Graham concluded that there was no significant problem on 27 May 1998.

78. The Tribunal is not in a position to "look into the future" as to what may or may not be the case with the applicant's shoulder if he returned to full normal duties. All available medical evidence, in the Tribunal's opinion, supports the contention that his shoulder is not producing ongoing incapacity, and the applicant's own evidence was that it was pretty well resolved by 7 May 1998, the date upon which Dr Awerbuch found no objective evidence of a shoulder problem.

79. It is clear to the Tribunal however, that on the available evidence, despite Dr Awerbuch's assessment of 7 May 1998, the applicant continued on light duties for his conditions, including the "resolving shoulder problem" (as referenced in the Return To Work documents (ST1)) until 19 May 1998, at which time, it is clear that the elbow problem took over. The Tribunal is satisfied that the totality of the evidence supports the contention that the shoulder was still partially incapacitating until 19 May 1998 and so finds. On the basis of the medical evidence, the Tribunal cannot accept that it was incapacitating after this time, and cannot speculate as to possible future incapacity as a result of return to full duties.

80. If the applicant returns to full duties and finds that he is unable to perform such duties due to shoulder pain, then it would be appropriate to assess incapacity at that time, for on the available evidence, liability for incapacity in relation to the shoulder ceased, in the Tribunal's opinion on 19 May 1998.

81. Turning to the elbow, the Tribunal first canvasses the issue of definitions of injury/disease and the legal standards of proof that flow from these definitions. Sub-section 4(1) of the Safety, Rehabilitation and Compensation Act 1988 defines "injury" and "disease" as follows:

""disease" means:

(a) any ailment suffered by an employee; or

(b) the aggravation of any such ailment;

being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation;

...

"injury" means:

(a) a disease suffered by an employee; or

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

(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;

but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment;

..."

82. In Zickar v MGH Plastic Industries Pty Ltd (1996) 140 ALR 156, the High Court made the position clear, and the Tribunal notes the following passage wherein Kirby J stated (inter alia at p187):

"...

... In that context the word "injury" should not be given a narrow meaning. It should have an ample application, in no way read down because parliament, additionally, has provided a separate head of recovery for cases of work-related diseases.

...

... Whether, in the case of a progressive disease, leading inevitably to a sudden or identifiable pathological change, it can be said that such change constitutes a "personal injury" can be left to determination on a case by case basis. It must be assumed that parliament intended the extended definition, enacted to cover cases of "disease" within s 4(b) of the 1987 Act, to have some operation.

... It is enough that the "injury" took place in the course of the employment. It is not necessary to show that it arose "out of" such employment. The suggestion that it was necessary to establish a causal connection represented a judicial attempt to set back the clock to a time before parliament made the phrase disjunctive.

..."

83. In Australian Postal Corporation v Burch (1998) 156 ALR 483, the Federal Court considered Zickar and stated (inter alia at p487):

"...

However, the fact that cases such as Kavanagh have accepted that an incident involving an internal rupture or breaking was an injury does not mean that, as a matter of law, rupture or breaking is an essential prerequisite to a finding of injury (in the ordinary sense) of an internal nature.

..."

84. The Tribunal has also given attention to the other cases put before it, but considers it unnecessary to set these out herein.

85. Following Zickar, it is apparent that "injury" is not to be given a narrow meaning. On its reading of the medical reports and the respective opinions of the doctors, the Tribunal considers that the lateral epicondylitis can be best described as being a series of micro-tears. These tears are things which occur internally, and whilst part of the degenerative process, can also be aggravated by external factors. Such internal "tearing" it would appear to the Tribunal, could be considered to be a "physical injury" as per the broad definition considered appropriate by the authorities, as the condition of lateral epicondylitis is caused by the culmination of these specific tearing "events".

86. Notwithstanding such debate on how the condition is to be classified, the Tribunal considers that it can be satisfied that there is both a temporal ("in the course of") and causal ("arising out of") connection between the condition and the applicant's employment, such that even were the injury test not met, the applicant would succeed.

87. In respect of causation, there is clear medical evidence that this is a degenerative condition. The applicant also experienced symptoms when throwing a ball, holding a leash and lifting weights, and it seems reasonable to the Tribunal to conclude that these activities may have been partly causative of the applicant's condition.

88. Dr Champion was of the clear and unequivocal position that the activities the applicant performed at work were of a type that would be causative, and this position was supported by Dr Faggotter. Dr Awerbuch considered that the activities as described to him would not be causative. Dr Awerbuch demonstrated in the witness box however, the type of action involved when throwing a ball overarm, and noted that the extension of the elbow was significant. The Tribunal was then given the opportunity to observe both the applicant and Mr French in the witness box as they demonstrated the arm movements necessary in the various mail room activities. Significantly, to the Tribunal's eyes, the demonstrated actions of the applicant and Mr French accorded with Dr Awerbuch's demonstration of the type of action that may give rise to a material contribution. Dr Awerbuch stated that the force would need to be very significant. However, the Tribunal considers that on the evidence before it, some of the actions required of the applicant at work could be said to be comparable in force to the throwing of a ball.

89. The applicant stood at his station and had to extend his elbow when putting mail in the lower slots as well as when putting mail in the overhead slots, and sometimes these things had to be forced. On route, sometimes mail also needed to be forced into the letterboxes. On the evidence presented to the Tribunal as to the work performed, it concludes that there were activities that involved the combination of force and repetition, and force and extension of the arm.

90. It is clear that Dr Awerbuch and Dr Champion are the doctors with the greatest expertise to proffer an opinion as to the cause of lateral epicondylitis. Both were impressive witnesses. The Tribunal was not satisfied with Dr Awerbuch's explanation as to why, despite finding no causal link between the work and the applicant's condition, he considered that the applicant should continue with restricted duties. This position appears at odds with a finding of no causation. Furthermore, the Tribunal has reached different conclusions as to what the applicant's work duties involved in respect of arm movements to Dr Awerbuch, and those conclusions seem to be more in line with actions that Dr Awerbuch would consider causative.

91. Considering the totality of the medical evidence as to what causes lateral epicondylitis in relation to the facts presented as to the applicant's work duties, the Tribunal can be satisfied, on the balance of probabilities, that the applicant's type of work is at least partly to blame in terms of causation of his lateral epicondylitis and so finds.

92. The applicant's condition has clearly been building for a number of years, and it has been a degenerative condition exacerbated by both work and other external stressors.

93. In respect of a temporal connection, it is clear that an event occurred at work on 19 May 1998 which resulted in severe pain in the applicant's right elbow, and required medical attention. The Tribunal is not overly concerned that the applicant had different dates on various forms and documents, as it is clear he is a poor historian. The Tribunal did not find him to be an incredible witness. He was not deliberately evasive as to dates, he simply appeared to be hopeless at remembering them. The Tribunal does have Mr Standley's and Dr Faggotter's evidence as to the events of 19 May 1998 and is satisfied that the onset of the incapacitating symptoms of lateral epicondylitis was that date.

94. The Tribunal accepts Dr Champion's explanation in relation to the issue raised as to why this event occurred whilst the applicant was on light duties, namely, that it may well have been that his resolving shoulder complaint caused him to alter his posture and method of mail sorting such that he exposed his elbow to greater risk. This seems entirely reasonable to the Tribunal.

95. The Tribunal is satisfied that the applicant's underlying injury, which had, in any event, been contributed to by the applicant's employment was subject to a further aggravation at work on 19 May 1998, and it was this aggravation which has resulted in incapacity.

96. In relation to incapacity, the Tribunal is satisfied that the medical evidence supports the contention that the applicant continues to be partially incapacitated for work as a result of his lateral epicondylitis and the Tribunal so finds. The Tribunal was concerned upon hearing the evidence as to this applicant's rehabilitation programme, as it appears that it has been entirely unsuccessful in either finding the applicant alternate duties or indeed to simply monitor how he is coping with his current duties. The fact that the evidence of Ms Watt indicated that he has not been seen for several months is certainly not what the Tribunal would regard as adequate attention to a worker in the applicant's position.

97. For the reasons above however, the Tribunal does not consider there to be ongoing incapacity in respect of the shoulder injury and so finds.

decision

98. For the above reasons and pursuant to s.43 of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and in substitution therefor remits the matter to the respondent for assessment with the directions that:

(a) the applicant's partial incapacity in respect of the accepted condition of right rotator cuff tendonitis continued up until 19 May 1998; and

(b) the applicant's condition of lateral epicondylitis is compensable, being an "injury" pursuant to s.4 of the Safety, Rehabilitation and Compensation Act 1998, and such condition has caused ongoing partial incapacity from 19 May 1998.

99. The Tribunal, pursuant to s.67 of the Safety, Rehabilitation and Compensation Act 1988, orders that the respondent pay the applicant's costs. In the absence of agreement between the parties, costs are to be taxed by a District Registrar or Deputy District Registrar and liberty to apply is reserved to both parties.

I certify that the 99 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE and Ms U. Dahl (Member)

Signed: .........................................................................

Personal Assistant

Date/s of Hearing 20, 21 & 22 September 1999

& 3 November 1999

Date of Decision 25 November 1999

Counsel for the Applicant Mr G. Harbord

Solicitor for Applicant Johnston Withers

Counsel for the Respondent Mr S. Stretton

Solicitor for the Respondent Norman Waterhouse