Achammer and Australian Postal Corporation [1999] AATA 999 (23 December 1999)

Last Updated: 15 February 2000

DECISION AND REASONS FOR DECISION [1999] AATA 999

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q1998/21

GENERAL ADMINISTRATIVE DIVISION )

Re JASON PAUL ACHAMMER

Applicant

And AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal Mr K L Beddoe (Senior Member) Dr K P Kennedy OBE (Member) Mrs H M Pavlin (Member)

Date 23 December 1999

Place Brisbane

Decision The Tribunal decides that the decision under review is affirmed.

Decision No 999/1999 (Sgd) K L Beddoe

Senior Member

CATCHWORDS

COMPENSATION : Incapacity for Work - whether injury, ailment or aggravation of ailment - contribution by employment - continuing entitlement

Safety Rehabilitation and Compensation Act 1988 s 14

Compensation (Commonwealth Government Employees) Act 1971

Treloar v Australian Telecommunications Commission (1990) 97 ALR 321

Federal Broom Coy Pty Ltd v Semlitch (1964) 110 CLR 626

Commonwealth Banking Corporation v Percival (1988) 20 FCR 176

Asioty v Canberra Abattoir Pty Ltd (1989) 87 ALR 385

Australian Postal Corporation v Lucas (1991) 33 FCR 101

REASONS FOR DECISION

23 December 1999 Mr K L Beddoe (Senior Member) Dr K P Kennedy OBE (Member) Mrs H M Pavlin (Member)

1. The applicant seeks review of a decision on reconsideration by a delegate of the respondent. That decision affirmed a determination to cease payment of compensation for left shoulder strain with aggravation of pre-existing pain symptoms but described in the determination as "the condition of recurrent neck pain". (T25 and T28).

2. So far as is relevant, s 14 of the Safety Rehabilitation and Compensation Act 1988 ("the act') provides that the respondent is liable to pay compensation in respect of an injury suffered by an employee if the injury results in incapacity for work.

3. Section 16 provides for payment of medical expenses.

4. Section 4 of the Act defines "injury" as follows:

"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."

5. "Disease" is also defined in s 4 to mean any ailment suffered by an employee or an 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.

6. At the hearing of this matter Mr Dickson of counsel appeared for the applicant and Mr Horneman-Wren of counsel appeared for the respondent. The documents lodged in the Tribunal pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 were lodged before the Tribunal as the T documents and further documents tendered at the hearing were marked as exhibits. Oral evidence was given by the applicant, 11 medical practitioners and an occupational therapist.

Evidence of the Applicant

7. The applicant provided a signed statement in relation to his claim and the contents of the statement were confirmed in his oral evidence. In that statement the applicant indicated that he had commenced with Australia Post as a postman at Coolangatta in 1989. He worked at Coolangatta for six months before returning to Victoria where he had commenced employment as a Mail Sorter at the Bendigo Mail Centre.

8. He considered the working conditions at the Bendigo Mail Centre to have been very good. In Bendigo there was a five minute break every hour which was designed to prevent repetitive type injuries. In Bendigo he sorted mail using an ergonomic type of seat and frame. The ergonomic chair allowed him to adjust the arm rest. When he sorted mail he would lower the right arm rest so that it was flush with the seat and adjust the left arm rest to support his left arm along the forearm near the elbow. He held the letters in his left arm and sorted the mail by placing letters into vertically raised pigeon holes.

9. The applicant stated that he did not sustain any work related injuries whilst he was a Mail Sorter at Bendigo.

10. At his request he was transferred to the Sunshine Coast Mail Centre ("SCMC") in June 1995. He said that SCMC did not have an ergonomic letter sorting frame. He sorted mail on what was called a horizontal letter sorting machine ("HLSM"). The HLSM stands about four feet high and has slits along its horizontal surface into which the letters are placed. At the front of the HLSM was a padded arm rest. The bottom of the machine had a metal guard which prevented the chair being moved closer to the sorting machine. He therefore had to lean forward over the machine to sort the mail and he supported his upper body weight by leaning his left elbow on the padded arm rest.

11. During the course of his shifts he would have two fifteen minute breaks and a forty minute meal break. He worked on the HLSM for an average of five hours a day.

12. The applicant stated that in September 1995 he commenced to experience left sided shoulder pain. Initially the shoulder pain occurred only when using the HLSM. Later the symptoms continued after using the machine. He said that he subsequently developed a constant ache around the left shoulder and is now never symptom free. The pain increased if he elevated his shoulder, moved it forward, or lowered it.

13. In 1996 he was assessed by Dr Eaton, an occupational physician, who had recommended that he use an ergonomic sorting frame which he had used in Victoria. The frame was made available to the applicant in October 1996.

14. On 19 May 1997 he was working at the ergonomic frame sorting mail. He said that on stretching his arms at the shoulders, as advised by his physiotherapist, the first, second and third fingers of his left hand and his left arm became numb, and remained numb for about three weeks. He could not hold letters in his left hand at that time.

15. He lodged a claim for compensation on 23 May 1997 and received compensation for the period 20 May until 9 July 1997. He stated that he continued to suffer constant pain in his shoulder while working on the ergonomic frame. On 28 December 1997 he was stood down because it was considered that he was unfit to perform duties of Mail Officer. The applicant commenced retail duties at Buddina Post Office on 20 May 1998. He has continued in that position since that time and has been able to perform the duties of this position.

16. In his statement the applicant also recorded that although he had played Australian Rules Football in the past and had scuba dived and surfed, he had not suffered any pain or discomfort in the region of his shoulders prior to September 1995 nor in the base of his neck or back and he did not recall dislocating his shoulder (the latter had been raised as a possibility following on an MRI examination). The applicant states that he continues to suffer discomfort and pain in the left shoulder blade and he still suffers pins and needles in his left hand.

17. During the course of his evidence in chief, the applicant said that when he had been working earlier on the HLSM he would take the mail from a trolley, turn his left wrist over and place mail in his left hand for sorting. He would rest his left arm on the platform of the HLSM with his elbow resting on an area on the pad. He would lean on his elbows as he leaned forward - mainly on the left elbow. The weight on the elbow would vary as he moved backwards and forwards while sorting.

18. When he had originally reported the discomfort in his left shoulder to his supervisor, arrangements had been made for him to be visited by a rehabilitation officer and physiotherapy had been arranged. The applicant said that these measures had resulted in some improvement although some discomfort had remained. In 1996, as already noted, Dr Eaton had recommended that he be provided with an ergonomic work station similar to that which had been used by him in Victoria.

19. After the provision of the ergometric work station in October 1996, the pain became more limited and he was able to continue with the mail sorting although, if he had to elevate arms above his head, he did experience some pain. This activity was required only about once a night and he could do the remainder of the job in reasonable comfort.

20. The applicant in his evidence in chief said that had it not been for that event associated with the stretching of his shoulders in May 1997 he believed that he would probably still be working as a mail sorter at SCMC.

21. During cross examination the applicant told the Tribunal that prior to May 1997, he had not experienced any abnormal sensation in his fingers. Prior to 1997 he had had discomfort at the front of his shoulder, over his shoulder blade, mid thoracic spine and had also had a neck problem. Pain in these areas had occurred on a daily basis since 1995 but was described as stagnant now. He said that he might have pain if he lies on his side at night. He has noticed that stress can make the pain worse.

22. The applicant also told the Tribunal that he has no problem with his current retail duties and that his current work is not causing any aggravation of his symptoms. He does continue to have problems with arm lifting or putting his arm forwards. He does sometimes experience pain when using the whipper snipper. He confirmed that he had not dislocated his shoulder at any time.

23. We accept the applicant's evidence as being truthfully given, there being no factual evidence to the contrary.

The Medical Evidence

24. Several medical reports were made available and a number of medical witnesses were called by the parties.

25. The first medical witness was Dr Francis Tomlinson, a Specialist Neurosurgeon. Dr Tomlinson had earlier provided a written report dated 2 July 1999. On clinical examination Dr Tomlinson had recorded normal range of movement at the left shoulder joint but some tenderness over left scapula medially and also on lateral aspect of left shoulder. Dr Tomlinson said that he had detected impingement. Cervical range of movement was normal. He had noted some discomfort over the ulnar nerve at elbow and mild discomfort on pressure over the median nerve at the left wrist. He did not record any loss of sensation in fingers or hand, nor did he note any wasting of the hand muscles.

26. Dr Tomlinson was of the opinion that the applicant had suffered multiple injuries as a result of his work. He said that he had symptoms consistent with an ulnar neuropathy and said that such a diagnosis was supported by the electrophysiological findings of Dr Cameron which had shown significant ulnar disturbances at each elbow.

27. Dr Tomlinson considered that the applicant may have dislocated his shoulder in the past without being aware of the dislocation at the time. He said that the earlier description of arm numbness would be consistent with impingement and neuropraxia of the brachial plexus occurring in relation to subluxation of the left shoulder. In support of this suggestion he referred to an MRI result which was said to have demonstrated a Bankart lesion associated with a Hill Sachs deformity of the posterior humeral head. Such a deformity is usually associated with traumatic shoulder dislocation. Dr Tomlinson suggested that the shoulder pain would then be consistent with an aggravation of a pre-existing condition.

28. The next medical witness was Dr Tze Ho, a specialist orthopaedic surgeon from Maroochydore. Dr Ho had examined the applicant on 9 April 1998. Dr Ho recorded that the applicant then had episodic pain in the left shoulder which was referred to the trapezius area. Dr Ho also referred to increasing numbness in the applicant's left hand.

29. On examination Dr Ho reported a full range of movement at the left shoulder. He said the applicant appeared to have a vague painful arc at 90 degrees of abduction. The supraspinatus muscles appeared to be somewhat tender but with full strength. There was full movement of the cervical spine. There was no sensory or motor deficit in the upper limbs.

30. Dr Ho referred to radiological reports which had indicated a normal appearance of the cervical and thoracic spines both in March 1996 and again in April 1997. An ultrasound of the left shoulder on 13 September had been reported as showing no rotator cuff muscle tear and no impingement or effusion,. He had also noted the MRI report to which reference has already been made.

31. Dr Ho did not feel that the MRI finding of the Bankart lesion was of any clinical significance because there had been no history of shoulder dislocation and in addition there was no evidence of shoulder instability on clinical examination.

32. During his evidence in chief, Dr Ho said that he considered the problem to have been of muscular origin, that other structures had been checked and were unlikely to be damaged. In cross examination Dr Ho told Mr Horneman-Wren that the symptoms had probably been related to abnormal posture associated with the applicant's work practices and that he would have expected to have seen an improvement with appropriate rest. He had made a diagnosis of a muscular basis for the symptoms by a process of exclusion and that diagnosis had not been made with any certainty. He could not quite explain the symptoms. In reply to a question from the Tribunal Dr Ho said that there had been some inconsistency between the symptoms and the duration of symptoms.

33. Another medical witness was Dr Doughty, a specialist in occupational medicine. Dr Doughty considered that the symptoms described by the applicant were consistent with compression of the lower cords of the brachial plexus. Dr Doughty said that he considered it probable that repetitive reaching or prolonged lifting of the shoulder at work could have caused symptoms of muscle compression of the brachial plexus. He considered that there was a reasonable possibility that there is permanent minor damage to the lower cords of the brachial plexus. He did agree with Dr Coroneos that there were minimal clinical findings.

34. In his evidence in chief Dr Doughty said that if muscles had been stressed over a period of time then injury may take a long time to recover or may not recover. During cross examination Dr Doughty said that with extension and elevation of arms for much of the day, such repetitive activity could cause minitrauma. He said that reassessment would be necessary if the activity had been different to that assumed. He agreed with Mr Horneman-Wren that if the applicant had experienced no problems during the five years in Victoria when working with the ergonomic equipment, then such equipment would be unlikely to be responsible for his later problems.

35. Mr Horneman-Wren referred Dr Doughty to the written report of Dr Michael Coroneos. In that report Dr Coroneos had stated that there was no evidence of any compression of the brachial plexus on MRI examination. Dr Doughty agreed that he was not an expert in the interpretation of MRI but he said that a negative MRI in his opinion did not exclude nerve compression at brachial plexus level. Dr Doughty had believed that there was some wasting of the small muscles of the hand but Dr Coroneos had stated that there was no wasting of the small muscles of the hand. Dr Doughty had referred to tender nerves which Mr Horneman-Wren said Dr Coroneos had not found.

36. In reply to a question from the Tribunal Dr Doughty said that in his opinion, the symptoms were consistent with minor permanent nerve damage. He said that holding arm still was just as likely to cause damage as the outstretched position as muscles have to be tensed to hold arm still.

37. A written report dated 10 July 1998 had been prepared by another specialist in occupational medicine, Dr Ian Lowe. In his oral evidence Dr Lowe stated that the initial pain had in his opinion been due to the physical arrangement of the work station. In cross examination Dr Lowe said that he had assessed the applicant as having had obsessional traits since an early age and that he had been a perfectionist. He considered that the applicant had a lack of insight. He felt that emotional factors may have played a part with the applicant in the early stages because he had believed that he should have been provided with another type of work station.

38. Dr Lowe stated that the longer one dwells on the physical symptoms the worse they tend to become until one is no longer able to distinguish between the two. Dr Lowe was of the opinion that there is no longer a physical cause and that there is an emotional role that needs to be addressed.

39. Dr Coroneos is a specialist neurosurgeon. He had provided a written report dated 18 November 1998. Dr Coroneos also gave oral evidence.

40. In his written report Dr Coroneos stated that on examination he had noted superior defined muscular development in all muscle groups. A full range of movement was noted in cervical, thoracic and lumbosacral spines and there was a full range of shoulder movement. There were no abnormal neurological findings and there was no muscle wasting. There was no wasting of the intrinsic muscles of the hands. The MRI of the cervical spine did not show any evidence of compression of the brachial plexus.

41. Dr Coroneos stated in his report that he was unable to find any basis for any significant symptomatology and he was unable to find any basis for any incapacity or requirement for restriction or modification of occupational, domestic or recreational activities.

42. In his evidence in chief Dr Coroneos confirmed that he still held to the opinions expressed in his report and again confirmed that the applicant in his opinion does not have any organic basis for his symptoms. In addition he could find no neurological basis for the symptoms which had come on acutely in May 1997. He confidently excluded any brachial plexus injury on the basis of his clinical findings taken in conjunction with the MRI result and the time that has elapsed since the initial symptoms.

43. During the course of cross examination Dr Coroneos told Mr Dickson that based on his findings he believed the applicant to be a malingerer. Mr Dickson then sought the response of Dr Coroneos to some of the other medical opinions which had been presented to the Tribunal.

44. First he referred to the opinion of Dr Tomlinson that impingement was present. Dr Coroneos said in view of the detection of full movement at the shoulder by a number of the specialists and the negative ultrasound report that impingement was definitely not present prior to when Dr Coroneos had examined him. If impingement was present when Dr Tomlinson had seen the applicant then it would have to be the result of another subsequent event. He also disagreed with Dr Tomlinson that the symptoms were due to an aggravation of a pre-existing injury. He did not agree with the suggestion of Dr Tomlinson that the applicant had an ulnar neuropathy as there were no supporting signs.

45. Mr Dickson referred to the comments of the Occupational Therapist that the applicant had diminished grip strength in his left hand. Dr Coroneos said that he regarded the finding as being quite subjective and of no real value.

46. In relation to the ulnar nerve conduction disturbance reported by Dr Cameron, Dr Coroneos commented that both ulnar nerves had been found to have conduction defects and yet symptoms had occurred on only one side. He acknowledged that the conduction defect had been slightly greater on the left. The pain described by the applicant however could not be explained by an ulnar disturbance alone and Dr Coroneos could not relate the findings of Dr Cameron to the symptoms described.

47. Dr Coroneos was then taken to the report of Dr Doughty. He strongly disagreed with the diagnosis put forward by Dr Doughty. Dr Doughty had stated that there was wasting of the hand muscles but Dr Coroneos said that the hand muscles were not wasted. Dr Coroneos regarded the supraspinatus muscle on the left side to be normal whereas Dr Doughty had said that it was wasted. Dr Coroneos did not agree that there was tenderness of the nerves described by Dr Doughty. Finally Dr Coroneos did not agree that there was any clinical or radiological evidence of brachial plexus compression. Dr Coroneos said that he would regard a negative MRI as having a 99% accuracy in ruling out any significant brachial plexus involvement.

48. In relation to the comments of Dr Lowe that there were emotional factors present, Dr Coroneos said that he did not consider emotional factors. In response to the comment of a psychologist that the applicant was depressed Dr Coroneos said that while psychiatry was not his field, he did not note any evidence of depression. The applicant had not been seen by a psychiatrist at any time.

49. Dr Coroneos did not agree with the opinion of Dr Ryan in July 1997 that the symptoms in May of that year had been related to C6 root irritation with cervicothoracic disc degeneration as the cervical spine xrays and the MRI had revealed no disc degeneration. That report of Dr Ryan, an orthopaedic surgeon had been included in the T documents but Dr Ryan was not called to give oral evidence. Dr Ryan had made no mention of any abnormality on examination of the shoulder nor did he make any reference to the ulnar nerve.

50. The next medical witness was another occupational health physician, Dr Stephen Goode. Dr Goode said that he had noted no significant impingement in spite of the fact that his report of 3 October 1996 had conceded very mild impingement. He would have anticipated that the applicant's symptoms would have settled as a result of the recommendations that he had made. Dr Goode had considered the applicant fit for normal duties at the time. In his opinion there were no objective features to justify ceasing his duties then, provided the ergonomic factors were addressed. As he had been working with the ergonomic frame in Victoria for five years Dr Goode considered that a return to that equipment would have provided the expected relief of symptoms. He emphasised that there were no objective physical signs and there was no explanation for the progression of symptoms.

51. In reply to Mr Dickson, Dr Goode said that at that time he had not examined the brachial plexus as the applicant did not have any neurological signs up until the time when he had last seen him in March 1997.

52. Dr Peter Winstanley also gave evidence by telephone. Dr Winstanley is an orthopaedic surgeon in Nambour who had examined the applicant in January 1998. Dr Winstanley said that the applicant had full shoulder movement and no evidence of impingement. There was no muscle wasting as one would expect with long standing impingement. He did not consider the Bankart lesion and Hill Sachs deformity being in any way relevant to his symptoms. He favoured some type of soft tissue discomfort. He could not diagnose a cause for the pain. In view of his history he felt it unlikely that he would be able to manage the mail job. In reply to Mr Dickson, Dr Winstanley said that he had not gone into any detail concerning his work equipment.

53. Dr John Cameron, a specialist neurologist, had also seen the applicant. Dr Cameron had seen him on 18 November 1997. In his written report Dr Cameron said that it was quite likely that a lot of the applicant's discomfort could be related to an ulnar nerve compressive disturbance at the elbow. He commented that the applicant seemed to rest on both elbows while mail sorting. At the same time Dr Cameron said that that would not account for the shoulder pain or some other symptoms.

54. During his oral evidence Dr Cameron said that the only objective abnormality had been some disturbance in nerve conduction in the right and left ulnar nerves with the impairment being slightly more prominent on the left. Dr Cameron said that such disturbance in nerve conduction did not necessarily correlate with symptoms and could in fact occur without any symptoms. He expressed the view that the ulnar nerve abnormality noted was more likely to have been an incidental finding and he doubted that work would have been responsible for the conduction disturbance. In response to a later question from the Tribunal Dr Cameron said that 2-3% of 30 year olds in the community might have bilateral symmetrical nerve changes of the type noted in the applicant without any symptoms.

55. Dr Cameron said that he would expect symptoms due to ulnar nerve compression to settle within six weeks if the cause were removed. If cervical nerve involvement were present as had been suggested in one medical report, he would expect to see muscle wasting if any significant involvement. Loss of fine finger movements could occur with sensory loss but the applicant did not have any evidence of sensory loss. Dr Cameron said that the total arm numbness described in 1997 could not be explained on the basis of findings recorded. The applicant would have to have had a high spinal lesion but neurological examination had been normal.

56. Dr Cameron told Mr Dickson that he did not agree with the opinion of Dr Tomlinson. He did not find any evidence of an ulnar neuropathy. Dr Cameron did not agree with the finding of the occupational therapist, Ms Stephenson that the applicant had reduced grip strength in his left hand. He also said that there was no evidence of impingement and he disagreed with the opinion of Dr Tomlinson that the applicant had neuropraxia of the cords of the brachial plexus.

57. In relation to the evidence of Dr Doughty, Dr Cameron also disagreed with the relevant part of his evidence. Dr Cameron said that the applicant did not have a thoracic outlet disturbance as the electrical changes in such a condition are different to what had been measured. Also there was no clinical evidence of such an abnormality. Dr Cameron also commented that elevation of the arm would take pressure off the brachial plexus.

58. Ms Stephenson is an occupational therapist. She gave evidence about her assessment of the applicant. She said that she had felt that the applicant had cooperated fully when performing the hand grip test which two of the medical witnesses had dismissed as being unreliable. They had believed that there was too much of a subjective element involved in the performance of that test.

59. Dr Peter Nash gave his evidence by telephone. Dr Nash is a specialist rheumatologist who had seen the applicant in 1996 and on the last occasion in January 1998 Dr Nash said that the applicant was thought to have an infraspinatus and biceps tendonitis when first seen in 1996. Dr Nash said that when he had seen the applicant in March 1997 shoulder impingement was present.

60. In the course of his evidence by telephone Dr Nash said that he would have expected complete resolution of his symptoms once the ergonomic frame had been provided. Dr Nash considered the ultrasound to be of variable reliability in relation to diagnosis of impingement. Dr Nash appeared to regard the Bankart lesion with Hill Sachs deformity, as reported on MRI examination, to be possibly significant. If that lesion were present then Dr Nash saw the applicant's work as having aggravated that condition.

61. The last medical witness to give oral evidence was Dr Gregory Nutting, a specialist orthopaedic surgeon. Dr Nutting said that the applicant did not have any symptoms to suggest a Bankart lesion with a Hill Sachs deformity. Also the applicant did not have impingement and was unlikely to have had impingement at any time.

62. Dr Nutting expressed some doubts about the reliability of ultrasound in the diagnosis of impingement but from his clinical examination he was confident that impingement was not present. He said that he could not offer an opinion about the brachial plexus. In his written report Dr Nutting said that given the fact that the applicant had changed his activity since October 1996 it would be his suspicion that any persisting symptoms were constitutional rather than work related. Dr Nutting in that report also opined that the applicant has an anatomical makeup which may predispose him towards the development of symptoms and that he did not think that an injury existed. Dr Nutting believed that any significant injury should now, over two years after the event, be reflected in some significant change on examination. One would expect wasting or some reproducible finding and no such change had occurred.

63. Dr Nutting expressed the opinion that the applicant has an inappropriate build for his previous occupation of mail sorter. Dr Nutting said that the applicant's symptoms were too widespread to be explained by one simple pathology. After reviewing 15 of the medical reports, to most of which reference has already been made, Dr Nutting said that although he had not seen the applicant for 12 months he rather suspected that any further examination and reporting by him would tend to most closely resemble the findings of Dr Coroneos.

The Applicant's Submissions

64. The applicant submits that the work station at Nambour before modification contributed to the claimed condition while conceding that the applicant's own physical makeup may have also been a contributing factor. The applicant submits there was at least a partial incapacity for work caused by the work station at Nambour resulting in him no longer being able to do mail sorting duties.

65. In Treloar v Australian Telecommunications Commission (1990) 97 ALR 321 the Federal Court decided, under the provision of the Compensation (Commonwealth Government Employees) Act 1971, and relying on the decision in Federal Broom Coy Pty Ltd v Semlitch (1964) 110 CLR 626, that the employment will be a contributing factor if some characteristic or condition in which the work of the employment was performed exposed the employee to circumstances resulting in aggravation or acceleration of a condition then the particular size of those contributing employment factors is not relevant but the circumstances are sufficient to establish a material contribution albeit that there may be other contributing factors in non-compensable circumstances.

66. In Commonwealth Banking Corporation v Percival (1988) 20 FCR 176, the Federal Court followed the decision in Asioty v Canberra Abattoir Pty Ltd (1989) 87 ALR 385 where the High Court decided that a work caused heightened susceptibility to dermatitis was an aggravation of the disease for the purposes of the ordinance there in issue. We are satisfied that those authorities apply with equal force to the present case.

The Respondent's Submissions

67. The respondent supports the cessation of compensation payments from 6 August 1997 on the basis that there was no incapacity for work after that date because the applicant was able to perform his modified duties which took into account the claimed condition.

68. The respondent submits that the principle in Asioty does not apply in this case because the applicant has a continuing capacity to work and there is no susceptibility to continuing aggravation of the pre-existing condition because of the changed duties (Australian Postal Corporation v Lucas (1991) 33 FCR 101 at 108). In the respondent's submission this is a case about constitutional makeup there being no evidence of any trauma whether employment related or otherwise. The risk here is that mail sorting may result in a further aggravation of the pre-existing condition. He is not required to do mail sorting in his continuing employment. The respondent submits that this is an emotional response case and relies on the evidence of Dr Lowe. However the psychological problem has no causative link with the applicant's employment. The respondent also points to the disparity in the histories given by the applicant to various medical practitioners.

Review of the Evidence

69. The factual basis of this case is not in dispute. We have accepted the applicant's evidence as to the factual basis as truthfully given. There is however a divergence of views in the medical evidence.

70. During the course of the hearing a total of ten medical specialists gave oral evidence either in person or by telephone. In addition reference has also been made to other reports within the T documents. The medical specialists called to give evidence covered a total of five different specialties. It became obvious that there was little agreement between them as to the basis for the symptoms described by the applicant.

71. Dr Tomlinson considered that the applicant had suffered multiple injuries as a result of his work. In the opinion of the Tribunal however Dr Tomlinson did not provide an adequate basis for such a group of injuries. More importantly we were convinced by other medical witnesses that most, if not all the diagnoses provided by Dr Tomlinson, were wrong. Dr Tomlinson proposed that the applicant did have symptoms related to an aggravation of a Bankart lesion associated with a Hills Sachs deformity. This condition does not however come within the expertise of a neurosurgeon. All the orthopaedic surgeons ruled out such a diagnosis on the basis that the applicant had no history or signs of such a condition. Evidence was also given that MRI reports suggestive of such a lesion cannot be relied upon. The Tribunal accepts the opinion of the orthopaedic surgeons over Dr Tomlinson in this regard.

72. Dr Tomlinson said that the applicant could have neuropraxia of the brachial plexus to explain some of the symptoms. Both Dr Coroneos, a neurosurgeon, and Dr Cameron, a neurologist, in their evidence told why there was no such involvement of the brachial plexus. The Tribunal accepts the opinion of Dr Coroneos and Dr Cameron in this regard and does not accept the opinion of Dr Tomlinson. Dr Tomlinson said that his diagnosis of ulnar neuropathy was supported by the abnormal conduction studies reported by Dr Cameron. Dr Cameron in his evidence stated that it was more likely that the conduction abnormality had been an incidental finding and he said that such changes might be found in 2-3% of the population aged 30 years and be without symptoms.

73. Overall the views of Dr Tomlinson therefore received very little support from other medical witnesses and the Tribunal has attached little weight to his views.

74. Three orthopaedic surgeons gave evidence and reference was also made to a written report by Dr Ryan. Dr Ho found no evidence of damage to any body structures but said that he had considered the pain to have been of muscular origin because there was no other basis. He felt that posture may have been a factor and would have expected an improvement with rest. Dr Ho said that there had been some inconsistency between the symptoms and their duration.

75. There was broad agreement among the orthopaedic surgeons concerning their findings on clinical examination. All orthopaedic surgeons had found full range of shoulder movement and all had confidently stated that at the various times that the applicant had been seen by each of them that there was no impingement at the shoulder. Dr Tomlinson and some others have recorded impingement to have been present but in this regard we accept the unanimous opinion of the four orthopaedic surgeons for such assessment is within their field of expertise.

76. Dr Ryan who had seen the applicant in 1997 had at that time attributed the May 1997 symptoms to transient C6 nerve root irritation and cervical disc degeneration. That diagnosis can be discarded however for as stated by Dr Coroneos subsequent investigations including MRI have revealed no disc degeneration.

77. Dr Winstanley noted that the applicant had no muscle wasting as would be expected with impingement. He had favoured a soft tissue injury but could not explain the reason for pain.

78. The last orthopaedic surgeon to give evidence was Dr Nutting. Dr Nutting had felt that the problem was constitutional and that the applicant had an anatomical makeup which may predispose him towards the development of symptoms. Dr Nutting did not believe that an injury existed. He also opined that any persisting injury extending over such a period would be associated now with wasting or other reproducible signs.

79. The orthopaedic surgeons as a group have been unable to identify any injury which would provide a basis for the long standing symptoms as described.

80. The applicant had been examined by three occupational health physicians. Dr Doughty considered that his symptoms were consistent with compression of the lower cords of the brachial plexus but he agreed that his clinical findings had been minimal. Two experts in this field, viz Dr Cameron and Dr Coroneos had stated quite definitely that there was no evidence of compression of the brachial plexus, this assessment having been based on the results of the MRI and nerve conduction studies. We prefer the opinion of Dr Cameron and Dr Coroneos in this regard.

81. Dr Doughty said that the applicant had wasting of the small muscles of the hand. Neither the neurosurgeons nor the neurologist nor the orthopaedic surgeons agreed with such an assessment and we therefore do not accept that the applicant has any wasting of such muscles.

82. Dr Doughty agreed with Mr Horneman-Wren that if the applicant had experienced no problems with the ergonomic equipment in Victoria then such equipment would be unlikely to be responsible for later problems.

83. Dr Lowe believed that the initial pain reported by the applicant had been due to the physical arrangement of the work station. Dr Lowe believed that emotional factors had played a part initially and said that he had assessed the applicant as having an obsessional personality. Dr Lowe did not believe there was any remaining physical cause for his symptoms and believed that emotional factors needed to be addressed.

84. Dr Goode had seen the applicant in March 1997. At that time he had considered the applicant fit for normal duties. He would have expected symptoms to have resolved after the applicant had been provided with the ergonomic frame.

85. Review of the evidence of Dr Goode and Dr Lowe does not support any persisting injury related to work and the opinion of Dr Doughty has in the opinion of the Tribunal been negated by the more expert opinion to which we have referred.

86. We come then to the evidence of Dr Cameron and Dr Coroneos. Both these medical specialists were most impressive witnesses. Dr Coroneos referred to the fact that the applicant had superior defined muscular development in all muscle groups. Dr Coroneos said that the applicant did not have any organic basis for his symptoms. He had demonstrated a full range of movement at all levels, there were no neurological findings and there was no muscle wasting. Dr Coroneos said that in his opinion the applicant was a malingerer. We are not satisfied that the applicant was a malingerer. We are satisfied that he was not incapacitated for work.

87. Dr Cameron in a written report had earlier stated that it was quite likely that a lot of the applicant's discomfort could be related to ulnar nerve compression. However in oral evidence he said that the ulnar nerve conduction disturbance had most likely been an incidental finding and could well be of no significance. He doubted that work would have been responsible for the conduction disturbance. Dr Cameron also said that he would expect symptoms due to ulnar nerve disturbance to settle within about six weeks if the cause were removed. Dr Cameron said that the numbness of the left arm which had persisted for six weeks could not be explained in the absence of any neurological abnormality.

88. The evidence of Dr Nash did not provide any additional assistance to the Tribunal as his opinions had not been supported by other specialists and he provided no basis for the Tribunal to attach any weight to his opinion.

89. As far as the applicant is concerned it is noted that he is currently in full time employment with Australia Post although no longer involved with mail sorting. In evidence he said that although he still has discomfort he does have little problem in coping with his present work. He also said that had it not been for the May 1997 incident, he believed that he could still be working at SCMC.

90. The medical opinions discussed above involve a wide body of expertise and experience and the opinions have been based on facts recorded over a period in excess of two years. In the opinion of the Tribunal the weight of evidence does not provide a basis to find a continuing injury, ailment or aggravation of an ailment. No organic disease has been demonstrated in spite of extensive medical assessment and no claim has been made that the applicant has any psychiatric disease related to his work or arising out of any other condition related to his work. The Tribunal acknowledges that the applicant suffered a temporary injury in May 1997 for which he was correctly awarded compensation between 20 May and 6 August 1997. The Tribunal finds no basis for extension of compensation beyond that date.

91. For the reasons given the Tribunal affirms the decision under the review.

I certify that the 91 preceding paragraphs are a true copy of the reasons for the decision herein of:

Mr K L Beddoe (Senior Member)

Dr K P Kennedy OBE (Member)

Mrs H M Pavlin (Member)

Signed: F Burton

Associate

Date/s of Hearing 29 & 30 November 1999

1 & 2 December 1999

Date of Decision 23 December 1999

Counsel for the Applicant Mr Dickson

Solicitor for Applicant Kruger Law

Counsel for the Respondent Mr Horneman-Wren

Solicitor for the Respondent Macrossans