Pollock and Australian Postal Corporation [2000] AATA 36 (28 January 2000)

Last Updated: 14 April 2000

DECISION AND REASONS FOR DECISION [2000] AATA 36

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q98/1163

GENERAL ADMINISTRATIVE DIVISION )

Re IAN STANLEY POLLOCK

Applicant

And AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal Miss WJF Purcell (Senior Member) Dr JM Lawrence (Member)

Date 28 January 2000

Place Brisbane

Decision The Tribunal affirms the decision under review.

(Signed)

WJF PURCELL

(Senior Member)

CATCHWORDS

COMPENSATION - liability for compensation - 'right shoulder injury and upper back pain' - applicant's lifestyle - alcohol consumption - lack of sleep - relationship problems - use of dependency forming drugs - preference of certain medical evidence - lack of evidence as to work-caused injury - incapacity resulting from lifestyle - pain due to fatigue and lack of fitness

REASONS FOR DECISION

28 January 2000 Miss WJF Purcell (Senior Member) Dr JM Lawrence (Member)

1. This is an application for review of a decision of 12 October 1998, of a Reconsiderations Delegate of the Australian Postal Corporation (Australia Post) to affirm a determination of 21 July 1998, that Australia Post had no liability for compensation for the applicant's claimed condition of "right shoulder injury and upper back pain".

2. The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents) together with exhibits tendered by the parties. The applicant, who was represented by Mr Keim of Counsel, gave oral evidence and called Dr Yat, his treating general practitioner, Dr Douglas, rheumatologist, and Dr Sowby, specialist in occupational medicine, all of whom gave evidence by way of telephone link-up. He called also Dr Jackson, musculoskeletal physician, as a witness. Mr Horneman-Wren appeared as Counsel for Australia Post, which called Drs Martin and Nutting, orthopaedic surgeons, Dr Weidmann, neurologist and Dr Goode, specialist in occupational medicine, as witnesses.

3. This matter was listed for a two-day Hearing before a Tribunal constituted by Senior Member Purcell, Miss Brennan and Dr Lawrence (Members). The matter became part-heard at the end of the second day of Hearing, and a further two days were allocated for the resumed Hearing. When the Hearing resumed Miss Brennan's term of appointment had expired, and she had not been reappointed. With the consent of the parties the Tribunal was reconstituted pursuant to section 23 of the Administrative Appeals Tribunal Act 1975, by the remaining Members for the balance of the Hearing.

4. The applicant is 45 years of age, and was employed as a night sorter, until he finally ceased work on 4 December 1998. He undertook various labouring jobs after leaving school at the age of 15. He bagged peanuts at Kingaroy for two years; worked at Monier for four years, painting and applying concrete lining to the interior of earthenware pipes. He joined Australia Post in 1977, as a postman in the Brisbane suburb of Kenmore. In 1980 he and his family moved to Corinda. The applicant and his wife separated in 1986, and in 1990 he left Australia Post and worked at Collarenebri, 140 kms west of Moree, in the cotton industry, and then in Proserpine, planting cane. He returned to his job as a postman at Corinda, in February 1991. He says that he had two near accidents on his motorbike, and requested then, a night sorting job.

5. The applicant commenced work as a night sorter at Archerfield Post Office in 1993. He worked a five-day week from 8.00 pm Sunday evening until 8.00 am Monday morning, and on the remaining days from 12 midnight until 8.00 am. There were three deliveries or "drops" of mail during the night shift; the first at midnight, the second at about 3.20 am, and the last at about 5.30 am. About two-thirds of the mail delivered was first class mail, standard sized letters; the balance, second class mail, being oversize letters. First and second class mail was sorted at different frames. The applicant sorted between 40 to 50 first class letters per minute into the pigeon holes in the sorting frame, either whilst sitting or standing. When the pigeon holes were filled they were emptied into their "runs" or their private boxes, at the rate of about six to eight boxes per hour, somewhere between 2400 and 3200 letters per hour. The letters were sorted on the ledge which was 2½' x 2' and at waist level in front of the sorting frame which was 4½' wide. They were placed in the lower pigeonholes from a seated position, and into the higher pigeonholes whilst standing. The applicant says that he was required to stretch to place mail into the pigeonholes, whether he was standing or sitting at his first class mail-sorting frame, or at the second class mail-sorting frame.

6. The applicant gave evidence that in 1996 he noticed that when he went home at the end of a shift his back and shoulders would be throbbing. The pain gradually came on earlier in the shift, until by July 1997 the throbbing would come on about 20 minutes into the shift. He would need to lie down for a couple of hours with a hot pack, at the end of the shift, and by the afternoon the pain would have eased. On 23 July 1997 he consulted Dr Sowby, visiting specialist in occupational medicine, at the Medical Services Unit at Australia Post. Dr Sowby noted that the applicant was a very thin person (weight 53 kgs, height 172 cms) and that whilst standing, he adopted a posture with his shoulders inclined forward, which resulted in poor posture of his thoracic spine. His ranges of movement in the neck, back and shoulders were full and free, but he exhibited "winging" of the inferior aspect of both scapulars.

7. Dr Sowby was of the opinion that the applicant was experiencing problems as a result of dysfunctional shoulder movements, which resulted in the upper shoulder muscles performing excess work, becoming fatigued easily, and with the further result that the applicant was experiencing symptoms in this area. Dr Sowby considered that the applicant was predisposed to this because of a number of factors, including his relatively slight build, the repetitive nature of the job, his current fitness level, poor posture, and it was likely that the set up of his work station was less than ideal ergonomically, and that the applicant did not utilise regular stretches and breaks. Dr Sowby recommended an ergonomic review of the workstation, that the applicant perform regular stretches, pause gymnastics, and consult a physiotherapist for a program of McConnell shoulder exercises and shoulder stabilising exercises. He noted that he discussed with the applicant the possible benefits of a light aerobic fitness program [T11/20-22]. Dr Sowby noted also that the applicant had said that his treating general practitioner, Dr Yat, had prescribed Valium, which the applicant said, relieved the symptoms, temporarily. [T11/20-22]

8. The applicant gave evidence that he did not follow up Dr Sowby's suggestions regarding shoulder and aerobic exercises, nor was his workstation assessed ergonomically. By the beginning of April 1998, the symptoms were so severe that he was finding it difficult to keep working. The burning pain would always start in the left shoulder and into the top of the spine, base of the neck and across into the right shoulder; and when he completed his shift, the left shoulder pain and upper back pain would be relieved by a hot pack, but the right shoulder would continue to throb for a few hours.

9. On 21 May 1998 the applicant consulted Dr Goode, visiting specialist in Occupational Medicine at Australia Post. He complained of bilateral upper thoracic pain, with referral to both shoulders and cervical spine, and is recorded as saying that he experienced the thoracic symptoms when driving his car and hanging out his washing, that his symptoms were worse in cold and rainy weather, and after rest, and were relieved by a warm shower. Dr Goode reported [T13/24-25] that he considered it likely that the applicant had some thoracic osteoarthritis, which was temporarily symptomatic when aggravated by posture. He recommended an ergonomic review of the workstation, advised the applicant as to thoracic posture to avoid exacerbating his symptoms, and also as to some long-term thoracic exercises.

10. On Wednesday, 27 May 1998, at 3.00 am the applicant ceased work and consulted Dr Yat that day. Dr Yat diagnosed "shoulder-muscular strain" and certified him as unfit for work from 27 May 1998 to 3 June 1998. The same day, the applicant lodged a claim for compensation for that condition. He was reviewed by Dr Goode on 4 June 1998, when he complained that he was still getting some cervical and thoracic discomfort. Dr Goode noted that the applicant's x-rays again apparently confirmed some mild degeneration in the cervical and thoracic spine, and he considered that the applicant could aim for three hours per night restricted duties, once the Occupational Health Nurse had performed an ergonomic assessment. As a result of that assessment, a Dohrmann ergonomic sorting frame was provided on 9 June 1998. This frame reduced the necessity to extend the arms, and eliminated the necessity to perform work above shoulder height.

11. On Wednesday, 10 June 1998, the applicant returned to work for three hours per shift, from 3.30 am to 6.30 am. He continued with physiotherapy treatment. On 16 June 1998 the Occupational Health Nurse reinforced the importance of regular stretches and the maintenance of correct posture. The applicant continued to work three hours per day (15 hours per week) until Friday, 10 July 1998, and on Monday, 13 July 1998 the workload increased to four hours per day for three days per week, and two hours per day for the remaining two days (16 hours per week).

12. Dr Yat had referred the applicant to Dr B Martin, orthopaedic surgeon, who examined the applicant on 30 June 1998 and reported to Dr Yat that although the applicant was of slight build he could find no abnormality with the applicant's neck or his shoulder girdle apart from a long-standing left clavicle fracture. Recent x-rays of cervical and dorsal spine were essentially normal, and Dr Martin stated that this was one of those very difficult cases where an accurate diagnosis based on pathology, was impossible. He had told the applicant that he was unable to make a diagnosis, and was unable, therefore, to suggest treatment. He concluded "You may like to refer him to a rheumatologist or some other medical specialist in musculoskeletal pathology".

13. Dr Yat referred the applicant then to Dr Douglas, rheumatologist, who examined him on 9 July 1998 and reported [Exhibit R3] that there was no muscle wasting, and the applicant had good movement of his neck, shoulders, dorsal and lumbar spine. Dr Douglas stated that he tended to agree with Dr Martin's comments that the assessment was quite difficult, and would suggest a referral to Dr Jackson, a specialist in musculoskeletal medicine. In a report to Australia Post of 16 July 1998 [T32/48-49] Dr Douglas stated that he could only suggest that the applicant was suffering from musculoskeletal pain which he would classify as "fasciitis". It appeared to Dr Douglas that this problem could be work-related and he suggested that the applicant be taken off mail sorting for at least four weeks. He would review the applicant at the end of August 1998.

14. On 21 July 1998 Australia Post's Claims Manager decided that he was unable to find, on the available evidence, that the applicant had suffered a work-related injury or disease. He disallowed the applicant's claim.

15. On 31 July 1998 the applicant was reviewed by Dr Goode [T34/52-53]. On examination there was a reduced range of movement of the cervical spine in right lateral flexion, and right rotation. Dr Goode stated that he remained of the view that the applicant had some cervical osteoarthritis; the condition was underlying, constitutional and chronic. He considered that there would be slow progression of the background ache over decades, but that periods of temporary exacerbation should settle within weeks. Dr Goode was thus unsure as to why the applicant's symptoms had not settled, and were as pervasive as they were. Like Dr Martin, he found it difficult to be specific as to prognosis. The applicant was continuing to work 16 hours per week. Dr Goode was hopeful that the applicant would be able to upgrade his duties, even possibly back to his normal duties. However, on the basis of the applicant's symptoms and reported disabilities, he considered this unlikely. He stated further that, as the applicant rightly pointed out, suitable redeployment was not easily identifiable, and his current job, as a night sorter, was not overly physically taxing.

16. The applicant attended his first appointment with Dr Jackson on 13 August 1998. The next three appointments were on 20 August 1998, 24 August 1998 and 26 August 1998. On 27 August 1998, Dr Douglas reported to Dr Yat that he had reviewed the applicant on that day, that clinically, again, there was very little to find apart from some soft tissue spasm and tenderness diffusely over the dorsal region and around his left scapula, that both he and Dr Jackson considered that the applicant might benefit from a period of a month or so off work, a small dose of amytriptyline at night or a similar anti-depressant, and continuation of physical therapy through Dr Jackson. The applicant ceased work on Thursday, 27 August 1998.

17. The applicant continued to undertake treatment with Dr Jackson, and on 23 September 1998, he was reviewed again by Dr Goode [T46/71] who noted that the applicant stated that he had improved, especially within the last week. He had no upper limb symptoms, cervical pain had settled, but he was still getting upper thoracic pain referred to his shoulders.

18. Dr Jackson reported to Dr Goode on 14 October 1998 in the following terms [Exhibit A3]:

"Your patient has cervicobrachialgia. This common condition is synonymously known as "frozen shoulder", "capsulitis", "periarthritis", "rotator cuff tendonitis", "supraspinatus tendonitis", subacromial bursitis", and "impingement syndrome".

Essentially it is due to sensitization of the spinal cord segments subtending the muscles, tendons, joints, capsules and ligaments of the neck and shoulder girdle.

This phenomenon is subsequent to persistent nociceptive traffic from the periphery releasing "substance P" and other algogenic chemicals into the dorsal horn.

Your patient displayed mechanical and thermal allodynia and dermatographia which indicates this process. He also had myofascial tight bands and trigger points in many of his neck and shoulder girdle muscles, indicating increased fusimotor drive from the sensitized gamma motor neurons in the adjacent anterior horn cells.

Mr Pollock has made a substantial improvement recently under the influence of physical medicine techniques designed to reduce the afferent nociceptive traffic and to the cognitive behavioral [sic] program that I have encouraged.

It is my opinion he can begin participating in a return to work program starting on the 9 of November 1998.

Prognosis should be good if he is allowed frequent breaks to stretch his muscles and mentally relax and be removed from a real or perceived pressure of work. His work tasks should also be varied and monotony and boredom reduced to an absolute minimum."

19. The applicant had applied through his solicitors for reconsideration of the determination of 21 July 1998; and on 12 October 1998 the determination was affirmed by the Decision under Review which stated in part that, after examination of the considerable medical evidence, the applicant suffered from an undefined medical condition; but, that based on the balance of probabilities, the condition was not work-related. On 6 November 1998 the applicant applied to this Tribunal for review of that decision.

20. On 9 November 1998 the applicant returned to work for four hours per day for three days, and two hours per day for two days - a total of 16 hours for the first week. The second week, commencing Monday, 16 November 1998, he worked five hours for three days, and three hours for two days (21 hours). On 18 November 1998 he was reviewed by Dr Goode who reported that the applicant still reported soft tissue symptoms which Dr Goode anticipated should settle with work-re-acclimatisation. [Exhibit R6] The third week, commencing Monday, 23 November 1998, he worked five hours per day for five days (25 hours). The fourth week, he worked five hours on Monday, 30 November 1998, he took sick leave for "flu pain headache" on Tuesday, 1 December 1998, and he worked on Wednesday, 2 December 1998.

21. On 2 December 1998 Dr Goode noted that the applicant complained that he was still suffering shoulder pain, his symptoms were unchanged, he was needing Panadeine Forte to get through every shift. He was suffering financial difficulties, and could not afford to see Dr Jackson any longer. Dr Goode requested that the applicant desist from taking Panadeine Forte at work, as it represented a potential safety issue at work and with driving. He advised the applicant to judiciously use minor analgesics such as paracetamol.

22. The applicant did not return to work on Thursday, 3 December 1998, and on 8 December 1998 Dr Goode noted that the applicant had reduced his intake of Panadeine Forte, continued to have the same symptoms and was no better. He stated that he could not manage at work without Panadeine Forte "now using half a tablet every three hours and Panamax ... Doesn't feel he can continue at work. Wants to take time off. Farm outside Tenterfield ...." Dr Goode provided a sickness certificate until 8 January 1999.

23. The applicant was reviewed again by Dr Goode on 12 January 1999 when he stated that his neck and upper back pain had settled, and that he had mild right anterior shoulder pain now which Dr Goode considered could be related to the duties he was performing at Tenterfield. He had been caretaking a friend's property and felt very much better for being away from work, as he does not like the "rat race" of the city. The applicant stated that he was not at all inclined to return to the work he was previously performing with Australia Post. Dr Goode arranged for the applicant to be reviewed by Dr G Nutting, orthopaedic surgeon, who has a particular interest in shoulder problems.

24. Dr Nutting reported, on 18 January 1999, that when examined that day, the applicant stated that he found it ludicrous that he be asked to attend, as most of his symptoms had abated. Dr Nutting noted that the applicant had an abnormal scapular rhythm, poor posture, but a full range of motion of both shoulders. There was no pathology present. It was clear to Dr Nutting that the applicant wanted to work in another position, and although he considered it might be useful for the applicant to undertake a residential course at the Belmont Shoulder Programme to ascertain his true potential, he doubted that the applicant "would be accepting of doing this with a view to returning to his former employment". [Exhibit R1]

25. Dr Goode's final review took place on 3 February 1999. The applicant stated that he was continuing to live at Tenterfield; and wanted to take up other work around the Tenterfield area, such as at the local meat works. Dr Goode concluded that there was no objective evidence of medical impairment which would preclude the applicant returning to night sorting work, but the applicant remained reluctant to do so. Redeployment had been investigated unsuccessfully some months earlier and, in Dr Goode's opinion, the applicant would be physically capable of van driving duties. It was not until about 9/10 April 1999 that Australia Post offered the applicant a van driving position, but on 12 April 1999 the applicant was convicted in the Tenterfield Magistrate's Court of driving under the influence, with a blood alcohol reading of ·205. He was fined and disqualified from driving for a 12 month period.

26. The applicant submits that he suffered an injury in the course of his employment with Australia Post which resulted in incapacity for work or impairment. His contention is that the injury he suffered is essentially physical, although some of the evidence would suggest that there has been some mental sequelae associated with the injury, but he has approached the Hearing of this matter on the basis that the quantum of the claim, the amount of the entitlement, whether or not his continuing absence from work is due to the injury, is a matter to be determined by the parties, after the Tribunal has made the essential decision with regard to causation.

27. Australia Post argues that on the medical evidence available at the time the determination was made, there was nothing upon which a diagnosis of an injury sustained by the applicant could be based. The subsequent medical evidence maintained that position at the time of the Hearing. There is an acceptance of a report of pain made by the applicant, but the medical practitioners cannot find the pathological basis for such pain, and are unable to diagnose an injury that he might have sustained, or indeed to provide a prognosis. However, if the Tribunal was to find that the applicant suffered from a compensable condition, then on the evidence, any incapacity resulting from that condition had ceased by 3 January 1999, one month after his last working day with Australia Post.

28. We have outlined the parties' submissions in a brief and general way, but do not purport to have summarised each and every aspect of their carefully prepared arguments, all aspects of which we have taken into account in our deliberations.

29. The applicant gave oral evidence over a lengthy period. It must have been difficult for him, as his evidence was interrupted from time to time by the interposition of medical witnesses. We found him, however, an unimpressive witness. He appeared open and articulate when outlining his symptoms and his work duties in examination-in-chief, but became defensive, elusive and uncommunicative when questioned more deeply about these topics in cross-examination and about other aspects of his life, his social activities, his relationship with his defacto spouse, and the level of his consumption of alcohol. We gained the impression that he emphasised deliberately the work-related aspects of his situation, but chose to understate his level of alcohol consumption and any personal difficulties that were impacting upon him at the time of the onset of his symptoms. We consider also that there were occasions when he prevaricated. This does not mean that we reject all of his testimony, but that we look to more objective and acceptable evidence to support our findings of fact in important areas of conflict in the evidence.

30. The other witnesses were medical practitioners, and we prefer the evidence and opinions of Drs Douglas, Sowby, Martin, Nutting, Weidmann and Goode in any areas of dispute in the medical evidence.

31. The applicant said in examination-in-chief that when he separated from his wife in 1986 he developed an alcohol problem which lasted until about 1991, when he resumed work as a postman at Corinda. Between 1991 and 1998 he had no problems with alcohol. A portion of the transcript of his cross-examination however reads at pp 155/157 as follows:

"DR LAWRENCE: So between 1991 and 1998 you didn't have any problems with alcohol? --- No. I do drink. I'm a social drinker but I've curbed that, yes.

You didn't have any problems with alcohol withdrawal in 1996 or 1997? --- No.

While you were working night sorting and before you had the ... ? --- No.

And you had the driving under the influence ... ? --- Tenterfield, yes.

... at Tenterfield at the beginning of this year? --- Yes.

So when did the alcohol become a problem again? --- It's not really a problem. When I'm out there, I only go to town, like, on a Friday to get my groceries and everything and a course. I don't see anybody during the week or whatever and it's a social thing - I just went a bit overboard - a bit too social.

MISS PURCELL: What did you blow? --- Point 205.

Point 205.

DR LAWRENCE: And you say that you weren't drinking heavily and you didn't have a problem with alcohol in 1996 or 1997? --- No.

The medical notes that we saw yesterday had a diagnosis of alcohol withdrawal symptoms by Dr Loth in 1997, I think it was? --- Yes. I don't think it was a great problem. It's not that I have to be put away or anything. I didn't really consider that as a - like I was - used to be.

But alcohol withdrawal symptoms give you nerves and make you shaky and sometimes you get prescribed Valium and Mogadon for those symptoms too, don't you? --- That's true.

Is that why they were prescribed for you? --- I'm not sure; possibly, yes.

MR HORNEMAN-WREN: You answered the Member's question by saying, "Yes, that's right", that some times Valium and Mogadon get prescribed for alcohol ... ? --- Withdrawal, yes.

Are you aware of that from your previous experience, are you? --- Yes.

MISS PURCELL: Meaning your experience between '86 and '91? --- Yes.

Well, why did you have - what were your symptoms when you went to Dr Loth and had the Valium and Mogadon prescribed in '97? --- I could have been - I guess I was drinking heavy. If you try to go cold turkey, you go into a - like a four-day pins and needles, sweating, shakes. It's just to get you through that four-day period.

This is six years after '91? --- Yes.

So what was your rate of drinking between '91 and '97? Did it gradually build up again? --- Yes it did, yes.

...

DR LAWRENCE: How much were you drinking when you saw Dr Loth in 1997 and was diagnosed as having alcohol withdrawal symptoms? --- Six hours a day.

Drinking six hours a day, beer? --- Yes.

Pretty solidly most days? --- Yes.

And after he made that diagnosis and prescribed Valium and Mogadon, how much were you drinking? --- I stopped for a month and then I - probably an hour or so a day after work.

And how much do you get through in an hour? --- Three pots.

Three pots? --- 30 ounces.

And that is at a hotel ... ? --- At the club - club RSL, yes.

MISS PURCELL: RSL club.

DR LAWRENCE: So you would drink and you continued drinking about that level? --- Yes.

Till when? --- Well, ever since I moved in with my sister and that, I don't drink at all over there."

32. The applicant gave evidence that he established a relationship with his defacto spouse in about December 1994/January 1995, and in December 1997 he moved into her home unit. They remained together until he left the unit on the weekend of 11/12 July 1998, 10 days before Australia Post rejected his claim for compensation. He resided then, with his sister and her family until his move to Tenterfield in December 1998.

33. In our view it is clear on the evidence that in 1997 when he made his first complaints of symptoms to Dr Sowby, the applicant was drinking alcohol for 6 hours each day and using Valium and Panadeine Forte. Dr Loth had noted previously, on 20 December 1996, that the applicant was sleeping only for 1-2 hours. In mid 1997 the applicant was prescribed further Valium and Mogadon and warned of the risk of addiction. Continuing alcohol abuse was a concern to Dr Loth. The applicant continued to drink heavily, and in April 1998, he was complaining to his treating general practitioner of difficulty getting to sleep after work, and was using Valium and Mogadon. The Mogadon was changed subsequently to Temazepan.

34. The applicant gave evidence that in 1998 he would "have a couple after work". His shift finished at 8.00 am. He would return home, his defacto spouse would go to work and he would go to the RSL club at 10.00 am, come home for lunch, watch television in the afternoon. His defacto spouse would arrive home with a take-away meal, and he would try to get some sleep between 7.00 or 8.00 pm and 11.00 pm, before commencing work at midnight. The applicant denied in evidence that he abused alcohol whilst living with his sister, but acknowledged heavy use at the weekend - 4 hours on Friday nights, and 5-6 hours on Saturdays - and also that his alcohol abuse and nervous problems increased after his separation from his defacto spouse in July 1998.

35. We are satisfied on the evidence that when the applicant complained of symptoms in May 1998, and first ceased work on 25 May 1998, allegedly because of his symptoms, this occurred in the context of continuing heavy alcohol abuse, lack of sleep, relationship difficulties, culminating in his partner requesting that he leave her unit, which caused him subsequent financial pressure and he was using dependency forming drugs in increasing quantities, Bendodiazepines and Panadeine Forte. No actual pathology was found to account for the applicant's pain symptoms, although repeated attempts were made by a range of specialists. None of these specialists, however, was aware of these surrounding circumstances. They based their opinions, quite properly, upon the information provided to them by the applicant.

36. Dr Douglas, rheumatologist, reported on 16 July 1998, in relation to the results of blood tests dated 7 July 1998, that the only abnormality noted was "some mild macrocytosis and an ESR of 31. Mr Pollock denied any significant alcohol intake" [T32/49]. On the evidence the applicant made this denial at a time when he was engaged in heavy alcohol consumption.

37. Dr Jackson gave evidence of his diagnosis of "cervicobrachialgia", which he acknowledged in evidence was merely Latin for "a pain in the neck and arms" - a description of symptoms. He acknowledged in evidence also, that he had not taken a formal history, nor had he enquired in detail about the applicant's alcohol/drug history, nor details of the "complex psychosocial variables" referred to in his reports. He was adamant, nevertheless, that 50% or more of the applicant's pain was due to work related causes, particularly to repetitive actions of sorting into a mechanical frame, and the repetitive, boring, monotonous nature of the work. Cross-examination of Dr Jackson revealed that he understood that the movements performed during the applicant's mail sorting were done into a mechanical frame, which required considerable elevation of his arms at the shoulder level. He understood also that the applicant worked a 12 hour shift, virtually non-stop, in this position. This is clearly not the case.

38. We consider that Dr Jackson's opinions were not based on a careful history taking examination, diagnostic, and therefore clinical model, and were often formulated on the basis of assumptions on his behalf, or an incomplete information from the applicant. We found Dr Jackson's evidence discursive and irrelevant at times. He gave evidence of a superficially scientific model for the explanation of chronic pain which occurs when there is no identifiable or diagnosable condition present to act as a "nociceptive stimulus". In our view however, he seemed to confuse his model of the mechanism of chronic pain with diagnosis/causation, and thus treatment and outcome prediction. He would not acknowledge that this model was not accepted by other medical practitioners, merely pointing out that this was due to the ignorance of other doctors and experts in the field. We found Dr Jackson's evidence of little assistance.

39. Dr Douglas, who first suggested Dr Jackson as a treatment provider, gave evidence that he does not share Dr Jackson's theories. He acknowledged that there was no pathology to account for the applicant's condition which he had described as fasciitis, which had resolved with treatment and the passage of time. Dr Douglas considered psychosocial factors relevant, but that it was not possible in the applicant's case to sort out cause and effect since it was not possible to know the whole story. We accept Dr Douglas' evidence.

40. Drs Nutting, Martin and Weidmann gave evidence which accorded with their written reports. They said, in effect, that even when they understood some of Dr Jackson's terminology, they did not agree with his theories. Dr Nutting said in evidence that the applicant's complaints of pain were, in fact, intermittent and referrable to certain actions, he did not suffer chronic pain. Dr Nutting said also that some of the conditions such as rotator cuff syndrome and supraspinatus tendonitis described as "imprecise" by Dr Jackson, were in fact, discrete diagnoses with identifiable pathology that could be treated. Dr Nutting concluded that the applicant had poor posture, some abnormal scapular rhythm and that fatigue and fitness were relevant in the causation of discomfort, as well as other psychosocial factors, but that there was no pathology present. We accept the evidence of Drs Nutting, Martin and Weidmann.

41. Dr Yat, the applicant's treating general practitioner, gave evidence by way of telephone link-up and outlined in detail the history of the applicant's complaints of pain. We found her evidence helpful.

42. Dr Goode impressed us as a thoughtful, skilled and fair witness. He made careful contemporaneous notes and reports. He gave evidence of the opinion he continues to hold that the applicant has some thoracic osteoarthritis, which was temporarily symptomatic, when aggravated by posture. He recommended ergonomic review and advised the applicant on posture or exercise to avoid exacerbating his symptoms. Dr Goode gave evidence that thereafter the applicant followed an "atypical course" insofar as he failed to improve as would be expected given the condition and its management. Dr Goode said that he did not accept Dr Jackson's theories of causation, although he belongs to the same Musculoskeletal Medicine Society. He is of the view that the applicant suffered discomfort as a result of inappropriate posture when carrying out repetitive movements, but did not suffer a soft tissue injury. The applicant would be unlikely to return to night sorting duties, not because of any physical impairment, but from a pragmatic point of view, two appropriate and carefully implemented return to work programs had failed. We accept Dr Goode's evidence.

43. We have examined the whole of the evidence carefully and in detail and we have taken into account the parties' submissions. We are satisfied, on the evidence, that the applicant was habitually reporting for duty, having slept for 1-3 hours, and consumed alcohol for some 6 hours in the preceding 14 hours. He was also taking high levels of dependency forming drugs. He blamed his night shift duties in part, for the breakdown of his relationship with his defacto spouse, and he wanted redeployment. In our view, the lifestyle he was pursuing rendered him fatigued and unfit for work and any pain he suffered while at work was as a result of this fatigue and lack of fitness. We are satisfied, on the evidence, that the applicant did not suffer an injury in the course of his employment, and we are satisfied that any incapacity for work he suffered in mid 1998 was due to the lifestyle he pursued outside of working hours, and not to any work related duty or injury.

44. We are satisfied, on the evidence and find as a fact, that the applicant did not suffer an injury, namely "right shoulder injury and upper back pain" in the course of his employment with Australia Post; and that Australia Post is not liable to pay compensation to the applicant.

45. For these reasons, the Tribunal affirms the decision under review.

I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Miss WJF Purcell (Senior Member) and Dr JM Lawrence (Member)

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

Associate

Date/s of Hearing 6/7 July 1999 & 17/18 August 1999

Date of Decision 28 January 2000

Counsel for the Applicant Mr Keim

Solicitor for Applicant Maurice Blackburn & Co

Counsel for the Respondent Mr Horneman-Wren

Solicitor for the Respondent Macrossans