Allen and Australian Postal Corporation - [2002] AATA 722

DECISION AND REASONS FOR DECISION [2002] AATA 722

ADMINISTRATIVE APPEALS TRIBUNAL )

)No N2000/1393;
)No N2000/1667;
)No N2000/1668;
)No N2001/262

GENERAL ADMINISTRATIVE DIVISION       )
           Re      MICHAEL LINDSAY ALLEN
  Applicant
           And    AUSTRALIAN POSTAL CORPORATION
  Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member Dr J D Campbell, Member

Date23 August 2002
PlaceSydney

Decisions     The tribunal dismisses application N2000/1393. The tribunal affirms the decision under review in application N2001/262. The tribunal sets aside the decision under review in application N2000/1668 and substitutes its own decision that the respondent is liable to pay compensation in respect of injuries to the applicant's shoulders, neck and spine. The tribunal varies the decision under review in application N2000/1667 and decides that the respondent is liable to pay compensation in accordance with ss 14, 16, 19, 20, 21 and 22 of the Safety, Rehabilitation Compensation Act 1988 ("the Act") and that the respondent is not liable to pay compensation in accordance with ss 24, 25 and 27 of the Act. The applicant is entitled to costs in accordance with the tribunal's general practice direction in relation to application numbers N2000/1667 and N2000/1668.
   [SGD] M J SASSELLA
  Senior Member
CATCHWORDS
WORKERS' COMPENSATION – lump sum payment for permanent impairment – whether restrictions in thoracolumbar spinal movement – decision under review affirmed

WORKERS' COMPENSATION – rib cage muscle strain – injury to shoulders, neck and spine – whether employer liable – decision set aside

Safety, Rehabilitation and Compensation Act 1988 ss 16, 19, 24, 27, 72

Re Labi and Comcare [1998] AATA 979
Re Jeremic and Comcare (AAT 5975, 20 June 1990)

REASONS FOR DECISION

23 August 2002 Mr M J Sassella, Senior Member Dr J D Campbell, Member

NATURE OF EACH APPLICATION

Application N2000/1393 is an application for review of a decision of a review officer within the Australian Postal Corporation ('the respondent", "Australia Post") dated 22 May 2000 (ex TD1/T37) which set aside an earlier reviewable decision dated 17 September 1999 (ex TD1/T17) which had affirmed a primary decision dated 24 August 1999 (ex TD1/T13) rejecting two claims by Michael Lindsay Allen ("the applicant") for workers compensation in respect of injuries to his rib cage allegedly sustained on 15 July 1998 and 5 July 1999 (ex TD1/T3, T9, T10). In the decision under review the review officer accepted liability for what was described as muscle strain of the right rib cage area. Incapacity payments from 17 November to 24 November 1999 were approved. Compensation for medical expenses was approved from 15 July 1998 to 24 November 1999. Effects of the injury were said to have ceased by 25 November 1999. In the present application the applicant argues that the effects of the injury did not cease on that date.
Application N2000/1667 is an application for review of a decision (ex TD2/T7) by an Australia Post review officer refusing liability to pay compensation to Mr Allen in respect of any injury to the muscle strain under rib cage encompassing all relevant provisions under the Safety, Rehabilitation and Compensation Act 1988 ("the Act"). This was in response to a request by the applicant's representative for a reviewable decision relating to a claim for a lump sum payment for work-related permanent impairment of Mr Allen's thoracolumbar back (ex TD2/T6).
Application N2000/1668 is an application for review of a reviewable decision (ex TD1/T46E) dated 23 August 2000 affirming a primary decision (ex TD1/T42A) rejecting a claim for workers' compensation in respect of an injury to Mr Allen's shoulders, neck and spine on 6 July 2000 (ex TD1/T38D) which prompted a compensation claim on 25 July 2000 (ex TD1/T40A).
Application N2001/262 is an application for review of a reviewable decision by an Australia Post review officer (ex TD2/T4) dated 4 September 2000 affirming a primary decision (ex TD1/T43) dated 7 August 2000 in which a determination was made that the effects of an injury to the neck on 8 March 2000 (ex TD1/T22, T24) had ceased.
Thus there is a series of alleged injuries to Mr Allen stemming from his work for the respondent. In chronological order they were:

15 July 1998 – injury to rib cage.
5 July 1999 – injury to rib cage.
8 March 2000 – injury to neck.
7 July 2000 – injury to shoulders, neck and spine.

HEARING

On 18 and 19 October 2001 the tribunal convened in Sydney a hearing in these four matters. Mr A Anforth of counsel represented Mr Allen. Mr G Elliott of counsel represented Australia Post. The tribunal heard evidence from Mr Allen and Dr N W McGill, a rheumatologist. The tribunal had access to the following documents which were taken into evidence:

Exhibit TD1 – Section 37 Statement and associated documents (exhibits T1 – T51) lodged by the respondent in application N2000/1393.
Exhibit TD2 – Section 37 Statement and associated documents (exhibits T1 – T9) lodged by the respondent in application N2000/1667.
Exhibit TD3 – Section 37 Statement and associated documents (exhibits T1 – T2) lodged by the respondent in application N2000/1668.
Exhibit TD4 – Section 37 Statement and associated documents (exhibits T1 – T2) lodged by the respondent in application N2001/262.
Exhibit A1 – Applicant's statement of facts and contentions, 1 October 2001.
Exhibit A2 – Three-page report by Dr P Siddall, pain management specialist, 29 May 2001.
Exhibit A3 – Two-page report by Dr Siddall, 29 May 2001.
Exhibit A4 – Report by Dr R J Scott, occupational physician, 9 May 2001.
Exhibit A5 – Report by Dr E Bonta, general practitioner, 14 May 2001.
Exhibit A6 – Report by Dr Bonta, 17 August 2000.
Exhibit A7 – Report by Dr G D Champion, rheumatologist, 3 December 2000.
Exhibit A8 – Editorial by Dr Champion, June 2000.
Exhibit A9 – Report By Dr R Hampshire, psychiatrist, 5 December 2000.
Exhibit A10 – Applicant's written statement, 7 July 2000.
Exhibit R1 – Respondent's statement of facts and contentions, 11 May 2001.
Exhibit R2 – Single-page report by Dr M Gliksman, occupational physician, 19 October 2000.
Exhibit R3 – Six-page report by Dr Gliksman, 19 October 2000.
Exhibit R4 – Report by Dr N W McGill, rheumatologist, 22 December 2000.
Exhibit R5 – Report by Dr McGill, 24 February 2001.
Exhibit R6 – Report by Dr Gliksman 13 February 2001.
Exhibit R7 – Photographs of mail sorting racks at Neutral Bay Post Office.
Exhibit R8 – Clinical notes of Dr Wolfe.

Mr Anforth told the tribunal that Mr Allen was seeking incapacity payments in respect of certain closed periods of time when he was off work. In effect this would result, if successful, in the re-crediting of some sick leave Mr Allen had taken. In addition, Mr Allen sought ongoing coverage for medical expenses involved in coping with his pain and a lump sum payment based on his work-related permanent impairment.
FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS
In this set of applications there have been several alleged work injuries. The respondent accepted liability for injuries to Mr Allen's rib cage and neck (ex TD1/T37 and T31A). This means that, in the view of the respondent, on 15 July 1998, 5 July 1999 and 8 August 2000 the applicant suffered work-related injuries which resulted in him being paid compensation for some period of time. The only incident not to generate an accepted compensable injury was the alleged injury to shoulders, neck and spine in July 2000. The tribunal finds, therefore, that the applicant suffered an injury under s 4(1) of the Act on each of the three dates in July 1999 and August 2000. The outstanding issues are whether there was an injury under the Act sustained on 7 July 2000, whether the effects of any accepted injury persisted beyond the dates of any alleged cessation of effects and whether Mr Allen has a permanent impairment.
muscle strain of the right rib cage area
The applicant lodged no compensation claim in respect of this mail sorting injury until 3 August 1999 (ex TD1/T9). In due course the respondent accepted liability and paid compensation, as mandated under the Act, until 24 November 1999. The applicant's statement of facts and contentions (ex A1) does not suggest that there are any unmet claims in respect of incapacity payments or medical expenses prior to 25 November 1999. The evidence in respect of any continuing effects of the injury after that date was as follows.
After 25 November 1999 there were several references to rib cage pain, called right flank pain by Dr G D Champion. Dr Champion saw Mr Allen on 2 February 2000 (ex TD1/T21) and at that time Mr Allen was complaining of intermittent pain experienced more in the right than the left flank. Dr Champion associated this with several activities at work. Mr Allen had been using a "walkie-stacker", described as a miniature forklift, "in the last fourteen months". This had been difficult to manoeuvre and required "awkward twisting reactions and seemed frequently to aggravate his right flank pain and also left flank pain which had been apparent in recent months". In the week and a half prior to seeing Dr Champion Mr Allen had moved jobs and had less lifting to do but "there [was] a twisting action related to a conveyor belt". Dr Champion saw Mr Allen as suffering from a chronic regional pain syndrome felt in the right flank more than the left. This had occurred in the course of Mr Allen's work activities which had increased the relative risk of pain of the type. There was evidence of bilateral "12th rib syndrome". Dr Champion saw Mr Allen as fit for light work such as he was doing at the time. Dr Champion commented also on other conditions suffered by Mr Allen in making that assessment.
On 21 December 1999 Dr N W McGill, rheumatologist, reported on the applicant (ex TD1/T19). He noted that the applicant was unfit and overweight and considered that the reported symptoms related to minor muscle strain. Dr McGill also noted the applicant's history of bronchitis and that this was often a cause of upper and lower chest wall pain, brought on by coughing. He found no residual problem and, although it was possible that the applicant's work may have contributed to the pain in the past, this was no longer the case. The applicant was fit to fulfil his normal duties. Dr Champion agreed with Dr McGill (ex TD1/T21) only to the extent that, while bronchitis could cause a little temporary aggravation in Mr Allen's rib cage symptoms, it was most unlikely to have been the cause, given the history presented by Mr Allen. Dr Champion was unaware of any evidence that coughing was a recognised cause of 12th rib syndrome.
In ex TD1/T33, dated 20 April 2000, Dr McGill elected not to alter his diagnosis despite Dr Champion's comments. He expressed interest in learning more about 12th rib syndrome. In ex TD1/T36 (19 May 2000) Dr McGill wrote again after researching 12th rib syndrome. Several learned articles he had read indicated that typically 12th rib syndrome produces loin pain but that pain can radiate to the abdomen. The cause is unknown. The articles suggested that the pain can be altered by posture and physical activity. The diagnosis can be confirmed by treatment for the syndrome (nerve block initially and if necessary resection of the 12th rib). None of the articles suggested that the syndrome could be caused by physical activity or injury, although specific movements could produce symptoms at the time of those movements. He thought it possible, although not probable, that Dr Champion's suggestion of 12th rib syndrome was the cause of the symptoms. However, work activities would not have caused the syndrome. They might have briefly exacerbated the symptoms at times. He considered that it would be reasonable to use an intercostal nerve block to test the hypothesis. He considered that Mr Allen remained fit for the normal duties of a postal delivery co-ordinator.
On 23 May 2000 Dr Ho, a general practitioner, certified Mr Allen fit for work with no restrictions (ex TD1/T38). However, on 25 July 2000 Drs Wolfe and Bonta certified Mr Allen unfit for work for 10 days but not for rib cage-related reasons (ex TD1/T40).
A psychiatrist, Dr I Rodger, reported on 1 August 2000 on Mr Allen's psychiatric situation (ex TD1/T40B). He diagnosed chronic pain syndrome and would seem to have taken a history of ongoing rib cage pain as he referred to Dr Champion's diagnosis of 12th rib syndrome and did not criticise that assessment. On 2 August 2000 Dr Wolfe (ex TD1/T41) certified Mr Allen unfit to work from 3 to 8 August because of conditions including 12th rib syndrome. Dr Bonta on 3 August 2000 (ex TD1/T41) certified him unfit until 17 August 2000 because of several conditions acute and chronic 12th rib syndrome. Dr Bonta further certified Mr Allen as unfit from 17 August until 20 September 2000, with perhaps an exception for 1 to 9 September 2000 (ex TD1/T46, ex TD2/T3). She said that Mr Allen's injuries were caused by and aggravated by physical work in the course of his employment.
On 22 December 2000 Dr McGill further reported (ex R4) that the applicant had resumed full hours, working 5 days per week and one day overtime. He had a lifting restriction of 7kg, but other than that he was performing normal duties. Part of his duties involved some management and the rest was sorting. Mr Allen said he was still experiencing pain and tenderness. Upon examination, Dr McGill could find no major abnormalities, although there was some tenderness of both clavicles, the upper chest, the right abdomen, thoracic spine, right shoulder. The 12th rib had slight tenderness. Dr McGill viewed ultrasound and x-ray films. In summary Dr McGill considered there was a further spread in the distribution of the symptoms and that the weight restriction could increase to 10 kg.
Dr McGill could not explain the majority of the applicant's symptoms on a physical basis. There was no evidence of injury or disease for most of the symptoms. Dr McGill considered that the applicant may have experienced normal minor discomfort in an exaggerated fashion. The applicant wished to continue his normal work duties and was fit to do so. Attendance at the pain clinic was good for management, but the tendency to report symptoms in various areas was likely to increase. No specific physical therapy was recommended. His pain symptoms had the potential to be influenced by his work duties in the short term and changes in the rotator cuff had the potential to produce symptoms in the long term. Dr McGill did not consider there was any permanent impairment and any minor restrictions on examination were unlikely to be permanent.
Thus, as late as 22 December 2000, Mr Allen was still reporting pains involving his rib cage. This was the case too when he had seen Dr Champion on 30 November 2000 (ex A7). Dr Champion listed Mr Allen's ongoing symptoms which included "The usual pain under the ribs (anterolaterally) on each side". Dr Champion detected some 12th rib sensitivity when conducting his examination. Dr Champion diagnosed 12th rib syndrome bilaterally which had gone on in much the same manner as previously reported, intermittently painful, always causing Mr Allen caution and some restraint in his activities, especially those requiring body twisting.
Dr McGill saw Dr Champion's report discussed in paragraph 17 and on 24 February 2001 (ex R5) wrote that he would not change his opinion after reading what Dr Champion had written. He did not consider that there was evidence to support most of Dr Champion's diagnoses.
Mr Allen saw occupational physician Dr R J Scott on 20 April 2001 (ex A4) and complained to him of pain under both costal margins, the right worse than the left. Examination revealed tenderness over the lower ribs. Dr Scott professed agreement in general with Dr Champion's reports, although unfamiliar with 12th rib syndrome. Dr Scott diagnosed, relevantly, musculo-skeletal strains to Mr Allen's upper abdomen and muscle attachments to his lower ribs along with regional and chronic pain syndromes. He strongly recommended pain therapy.
Dr P Siddall, a pain specialist, saw Mr Allen on 29 May 2001 (ex A2) and Mr Allen was complaining of relevant pains.
In oral evidence at the tribunal Mr Allen said that his rib pain required him to avoid body twisting motions and made it difficult for him to tie shoe laces. He was not at a pain clinic but was on a waiting list. There was a cost of $5,000. Mr Elliott put to Mr Allen that the claimed conditions were no longer affecting Mr Allen. Mr Allen denierd this and denied exaggerating his symptoms.
Mr Allen told the tribunal that he was suffering little pain during the hearing. The pain receded when he was inactive. It would return when he works.
Dr McGill gave evidence at the hearing. He thought 12th rib syndrome an unlikely diagnosis in part because at the second examination he carried out there was less tenderness over the 12th rib than in other areas. He still considered that abdominal pain stemming from bronchitis-induced coughing the more likely cause. In cross-examination it was suggested that Mr Allen reported some rib pain when there were no contemporaneous or recent reports of him suffering from bronchitis. Dr McGill was prepared to accept that at such times Mr Allen's work could exacerbate, but not cause, a problem.
Based on the evidence summarised above, the tribunal makes the following findings in relation to Mr Allen's rib cage pain.

Mr Allen has reported this pain fairly consistently and constantly since the cease effects decision in November 1999.
The tribunal finds that Mr Allen was a credible witness whose credibility was not notably shaken in cross-examination.
The tribunal considers that Mr Allen may have a low tolerance to pain.
The respondent's only diagnosis explaining the condition was that it was abdominal pain secondary to bronchitis-induced coughing. The tribunal considers that, while that may explain some flare ups in the condition, that diagnosis does not explain the complete history of incidence of the problem.
The tribunal is not convinced that the correct diagnosis is 12th rib syndrome. Dr McGill's comments on the unlikely nature of a connection between that condition as it is understood and Mr Allen's work activities were cogent in the tribunal's view. The tribunal considers that Dr Scott's diagnosis presented a more attractive option. However, it is not absolutely necessary for the tribunal to arrive at a conclusive diagnosis if it is satisfied on the balance of probabilities that Mr Allen continued to suffer pain in his rib cage attributable to his work, with work either a fundamental cause or as an exacerbation. The tribunal relies on tribunal decisions in Re Labi and Comcare [1998] AATA 979 (paragraph 24) and Re Jeremic and Comcare (AAT 5975, 20 June 1990) (paragraph 34).

In relation then to the decision to regard the effects flowing from Mr Allen's rib cage injuries as having ceased, the tribunal will set aside that decision and find that the effects of those injuries are ongoing.
neck and shoulder pain
On 11 April 2000 the respondent accepted liability for an episode of neck and shoulder pain that occurred on 8 March 2000 (ex TD1/T31A). On 7 August 2000 a delegate within Australia Post decided that the effects of that injury ceased as of 1 June 2000 (ex TD1/T43).
He relied on a report from Dr Bonta dated 7 April 2000 (ex TD1/T31). In her report she noted that Mr Allen said that his neck and right shoulder pain had commenced on 7 March 2000 [this date should have been 8 March 2000]. He had continued working despite the pain. He went on holiday from 13 to 20 March 2000. Because of continuing pain he saw his own doctor on 20 March 2000 who ordered x-rays and ultrasound. Dr Bonta saw Mr Allen on 21 March 2000 and said that, based on Mr Allen's symptoms, signs, results of investigations and the fact that he had problems relating to two different parts of the body, she recommended rest until the end of the week, regular physiotherapy and NSAID. He told Dr Bonta that in his job he had to memorise street names moving his head up and down while looking up and down and that he was taking mail weighing between five and 15 kg off a conveyor belt and putting it to one side. When Mr Allen saw Dr Bonta on 24 March 2000 he had no pain and on examination had a full range of movements. Dr Bonta discussed the situation with Mr Allen's physiotherapist and the two agreed that the injuries had fully resolved. She said that Mr Allen would have to exercise care in the work he did and try to avoid repetitive actions as he had been doing lest the problems might re-emerge.

As in the case of the rib cage pain, it is necessary to ascertain on the balance of probabilities whether the effects of this condition actually did cease on 1 June 2000. Dr Bonta issued a certificate on 23 May 2000 (ex TD1/T38) stating that Mr Allen's neck pain and dysfunction had resolved. However, by 25 July 2000 both Dr Wolfe and Dr Bonta (ex TD1/T40) were certifying Mr Allen as unfit for work from then until 3 August 2000 because of neck, back and shoulder pain caused by unloading and heavy lifting at work (Dr Wolfe) and due to cervical and thoraco spine dysfunction and right shoulder supraspinatus tendonitis and sterno-clavicular joint arthritis (Dr Bonta).
This in fact requires consideration of the fourth injury, that of 7 July 2000, the centrepiece of the application reflected in ex TD3. However, before moving on to the "shoulders, neck and spine" injury of 7 July 2000 it is necessary to consider additional material on the neck injury. Mr Allen told the tribunal that he moved to Neutral Bay Post Office as a night sorter where he needed to learn the streets and beats for sorting mail. He had to refer to a chart on the sorting frame for the purpose. This was a 45-degree angle and he had to look up at it constantly. After a couple of months the neck became sore. Then, on one night it became "really sore and stiff". In cross-examination Mr Allen told Mr Elliott that he spent about three hours in an eight-hour shift working at the sorting frame and having to consult the chart.
At the same time he had some right shoulder pain which he attributed to using a conveyor belt between January and March (or, Mr Allen said, it may have been July) 2000. He had to bend and lift packages when doing the conveyor belt duty. He had between four and six sessions at the conveyor belt in a single shift. Each session ran for between 15 and 60 minutes. He did sorting between sessions at the conveyor belt.
In cross-examination Mr Elliott attempted to ascertain what had precipitated the problem on 8 March 2000. Mr Allen said that he recalled the incident as involving the onset of pain when he was unloading the conveyor belt. Mr Elliott put to Mr Allen that there had been no mention in the incident report (ex TD1/T22) of the unloading as a cause of the problems. There had been no mention either of right shoulder pain. Mr Allen said that the neck pain was the dominant pain.
Mr Allen worked on for what he thought was two or three weeks before having two weeks off work. He thought he did his full duties. He saw Drs Wolfe and Bonta and had physiotherapy. He said that he saw Dr Bonta on referral by Vivien Reid, Australia Post's day shift manager.
In cross-examination Mr Elliott, working from ex TD1/T51, Mr Allen's leave records, noted that Mr Allen took recreation leave from 12 to 18 March 2000. He also took leave from 25 March to 7 April 2000. He took compensation leave from 20 to 24 March 2000. Mr Allen said that he saw Dr Ho or Dr Bonta (who were both at the same medical practice) prior to taking leave. That would have been very soon after the injury. He said that he spent his leave at home where his neck hurt again. The documents show that Mr Allen first saw Dr Bonta on 21 March 2000 after the incident on 8 March 2000 (ex TD1/T26, T31). Mr Allen agreed that he had not seen Dr Wolfe prior to taking leave. The records show that Mr Allen did not claim compensation until 21 March 2000, the same day he saw Dr Bonta and after his leave. Mr Elliott suggested that Mr Allen's right shoulder became a problem during his period of recreation leave from 12 to 18 March 2000. The first medical attendance involving the shoulder was with Dr Wolfe on 20 March 2000 (ex TD1/T23A). The tribunal notes that that certificate refers to the cause of injury as lifting heavy bags with mail sorting. There was no mention of raising the head to read the streets chart.
On the basis of the above evidence the tribunal is satisfied on the balance of probabilities that Mr Allen's neck and shoulder pain, stemming from an incident on 8 March 2000, had resolved by 1 June 2000 and that the cease effects decision taken on 7 August 2000 in respect of that injury was the correct or preferable decision. The tribunal was most impressed by the views of Dr Bonta who was not reluctant to give Mr Allen certificates taking him off work on a number of occasions. She was a treating doctor whose reports over time appear to the tribunal to have been fair to Mr Allen. The tribunal considers that her assessment on 7 April 2000 was sound. Indeed, as she said, Mr Allen needed to exercise care to avoid repetitive actions or the problems could re-emerge. Perhaps that partly explains the events on 7 July 2000. The tribunal comments that it prefers the assessment of Dr Bonta to that of Dr Champion on this aspect. Dr Champion (ex A7) said that the effects of this injury continued apparently indefinitely. He did not, however, examine Mr Allen between 2 February 2000 and 30 November 2000. Dr Bonta, as a treating doctor, was in a far better position to form an accurate view of Mr Allen's history.
injury to shoulders, neck and spine
The respondent has never accepted liability for this injury. It is necessary to decide whether it should have accepted responsibility. In oral evidence Mr Allen said that there were two injuries on 7 July 2000. The second occurred 20 minutes after the first and involved a "ripping of the clavicle". However, in cross-examination Mr Allen said that he could not recall which came first, although he had said that while unloading the conveyor belt he felt a specific pain in his back and then his shoulder. Mr Elliott suggested that the applicant's lack of recall may mean that no incident occurred. Mr Allen denied that proposition pointing out that the injury was so concerning that he completed an incident report immediately. Both aspects of the injury were said to be covered by the incident report dated 7 July 2000 (ex TD1/T38D). The incident report does not in fact clarify these matters. From that the following appears:

The incident occurred at 11.15 pm on 7 July 2000.
The symptoms were pain in left and right shoulder bone, in neck, top and middle of spine, under the left and right ribs.
He had first been treated by Dr Wolfe in September 1998.
The incident happened while Mr Allen was unloading the conveyor belt. He was lifting boxes into trolleys and tipping and throwing aside bags.
The injury was a possible aggravation of previous injuries. He identified a "new problem", "pain on bones going out towards shoulder" and "some soreness on vertebrae".

Mr Allen said that he was treated by Dr Wolfe who referred him to Dr Rodger, a rehabilitation specialist, who favoured referral to a pain clinic and steroidal injection in the shoulder. He also saw Dr Champion, he said. He took eight to 10 weeks off work and rested. He used Voltaren. Dr Bonta recommended that he exercise. He described his shoulder pain after July as much worse than it had been in March. The neck pain was at about the same level. The rib cage pain was as bad as it ever had been. The new elements in July 2000 were the ripping sensation in the clavicle and the pain in the spine. He then returned to work on restricted duties. By the time of the hearing he was working full hours and had been since mid-December 2000. He was restricted in lifting and pushing.
He described his symptoms at the day of the hearing:

His right shoulder was less flexible than the left. It had less capacity than before. He was sorting with his left hand 70% of the time whereas he used to use his right hand exclusively. He had difficulty hanging out washing and lifting. He had paid no attention to his ability to grasp objects.
His neck was tender and sore. He could dance no longer and had ceased cycling. He used to cycle 20 km a day on an exercise bicycle. He was doing little walking any longer.
His back caused him pain if he sat in a slouch position. He had given up all sports. He was no longer cycling, walking or playing rugby or water polo.

Mr Allen said that he was not on any treatment at the time of the hearing but that he uses medications, Panadol, Voltaren and Lithium (for a psychiatric condition not relevant in these proceedings).
In cross-examination Mr Elliott noted that Mr Allen first saw a doctor, Dr Wolfe, about these injuries on 24 July 2000. Mr Allen had worked without interruption from 7 to 24 July 2000. Mr Allen said that he had "soldiered on". Mr Elliott noted also that on or about 24 July 2000 Mr Allen had had a lengthy counselling session with Dr Wolfe about work. Mr Allen agreed that this was so. He said that he was upset and emotional at the time because of all of his injuries. That was the cause of the counselling and he had then gone off work, with, the tribunal notes, support from Drs Wolfe and Bonta (ex TD1/T40).
The later medical evidence about these conditions was to the following effect.

Drs Wolfe certified Mr Allen unfit for work for periods taking him from 25 July to 20 September 2000 (ex TD1/T40, T41, T46; ex TD2/T3).
Dr Gliksman on 19 October 2000 (ex R3) reported that Mr Allen complained still of symptoms relevant to this alleged injury. However, his opinion was that Mr Allen suffered from no appreciable impairment. He noted that previous ultrasound and x-ray reports were mostly normal, except for the right shoulder which showed some past tearing. Examination bore out that there was no clinical evidence of pathopsychological conditions causing the type, extent or duration of the symptoms complained about. Dr Gliksman reasoned from the date of the ultrasound (20 March 2000, ex TD1/T23) that Mr Allen's right shoulder condition was not attributable to the incident on 7 July 2000. [It could, of course, stem from the incident on 8 March 2000.]
Dr Champion reviewed Mr Allen on 30 November 2000 and reported on 3 December 2000 (ex A7). He took a history of the 7 July 2000 incident that suggested that Mr Allen experienced an exacerbation of his pain only on the night of 7 July after he had gone home (ex A7/2), although he understood that Mr Allen had experienced a kind of ripping as he took mail off the conveyor belt that day at work. At the review Mr Allen said his principal symptoms included pain in the mid back, diffuse neck stiffness and soreness while he was working, discomfort in the sternoclavicular areas especially when lifting, and soreness (albeit improved) in the right shoulder from time to time. In relation to physical examination Dr Champion commented on pain in the cervicothoracic junction produced by neck flexion, tenderness and pain on pressure at C6-7 and C7-T1, cervical and thoracic tenderness beyond the cervicothoracic junction, pain free abduction of right shoulder and other movements, pain in the right shoulder from gentle compression of the acromion consistent with supraspinatus/totator cuff tendon disorder, deep soft tissue tenderness in the right and left suprascapular region with features of secondary allodynia. Movements of the thoracolumbar back provoked no significant pain. There was tenderness to pressure over the lower thoracic vertebrae, particularly at T12 where there was a prominent pain response. Dr Champion diagnosed a lower thoracic spinal pain syndrome, cervical spinal pain syndrome from looking at the address board, painful abduction of the right shoulder with abnormality of the right supraspinatus tendon, also dating from the March 2000 incident. Dr Champion regarded the 7 July incident as having aggravated Mr Allen's cervical spinal pain syndrome, the low thoracic and thoracolumbar spinal pain syndrome, and as having provoked a bilateral sternoclavicular pain syndrome. Dr Champion stated that the disorders had been biomechanically provoked in the main not by a single incident but by repetitive mechanical stresses. That had led to "sensitisation of pain nerve endings in the affected part and sensitisation of the pain process within the central nervous system". He had some anxiety which could augment the pain experience. Dr McGill considered these diagnoses on 24 February 2001 (ex R5) and commented. Dr McGill did not consider there was evidence to support most of the diagnoses of Dr Champion and the provision of labels (to define physical symptoms) that imply physical pathology only reinforced an abnormal belief system in the applicant. Dr McGill did not agree with Dr Champion and did not wish to change the opinions in his previous report (see next bullet point) on the basis of the hypothesis suggested by Dr Champion.
Dr McGill saw and reported on Mr Allen on 22 December 2000 (ex R4). Mr Allen said he was still experiencing pain and tenderness. Upon examination, Dr McGill could find no major abnormalities although there was some tenderness of both clavicles, the upper chest, the right abdomen, thoracic spine and right shoulder. The 12th rib had slight tenderness. Dr McGill viewed ultrasound and x-ray films. In summary Dr McGill considered there was a further spread in the distribution of the symptoms and the weight restriction could increase to 10 kg. Dr McGill could not explain the majority of Mr Allen's symptoms on a physical basis. There was no evidence of injury or disease for most of the symptoms. Dr McGill considered that the applicant may have experienced normal minor discomfort in an exaggerated fashion. The applicant wished to continue his normal work duties and was fit to do so. Attendance at the Pain Clinic was good for management but the tendency to report symptoms in various areas was likely to increase. No specific physical therapy was recommended. His pain symptoms had the potential to be influenced by his work duties in the short term and changes in the rotator cuff had the potential produce symptoms in the long term. Dr McGill did not consider there was any permanent impairment and any minor restrictions on examination were unlikely to be permanent.
Dr Scott reported on 9 May 2001 (ex A4) that he had seen the applicant and viewed x-ray reports, and had received letters from various doctors. Dr Scott considered that the applicant had sustained musculoskeletal strains to his upper abdomen and muscle attachments to his lower ribs, some anterior chest and sterno clavicular joint strains and a right rotator cuff strain with some tendon tears and that these occurred at work. The applicant also had a regional pain syndrome and chronic pain syndrome resulting from his various strains caused by the above injuries. These injuries affected his work capacity and the chronic pain syndrome made the applicant partially incapacitated.
On 14 May 2001, Dr Bonta reported (ex A5) that the applicant's work was physical and repetitive and involved lifting, pushing, pulling, bending, trunk twisting, reaching and neck movements. Apart from some specific incidents which caused injury, the applicant's pains were caused by heavy lifting, pushing or repetitiveness of some less demanding work or static work. If there was repetitive lifting involved he complained of pain, and following letter sorting he also complained of pain. Dr Bonta considered that the applicant was never really well since 5 October 2000. His rib pain was worse after heavy lifting or trunk twisting and if the lifting was repetitive. Dr Bonta's opinion was that the applicant was partially incapacitated but she could not comment on the extent. He was unable to return to full duties as a mail sorter which involved physical work but he would do well in an administrative position.
On 29 May 2001, a report was provided to Dr Bonta from Dr P Siddall, clinical lecturer from the Pain Management and Research Centre, Royal North Shore Hospital (ex A2). Dr Siddall reported that the applicant's pain was affected and aggravated by activity especially working, but he obtained relief from heat, walking and analgesics. He was taking various medications but had reduced walking and his exercise bike. Dr Siddall examined the applicant, viewed the applicant's x-rays and ultrasound and read the physiotherapy and clinical psychology assessments. His opinion was that the pain appeared to be a soft tissue musculoskeletal pain and a supraspinatus tear which caused pain in the right shoulder. Physiotherapy and pain management were recommended.

The primary decision-maker (ex TD1/T42A) rejected Mr Allen's claim because he had identified no incident or hazardous situation and doctors who had provided certificates had not referred to any connection between diagnosed medical conditions and work activities on or about 6 July 2000. The decision-maker conceded that Mr Allen may on one or more occasions during his working career have sustained a muscular strain injury but there was no evidence to support a claim that Mr Allen had been injured at work on or about 6 July 2000.
The review officer considered (ex TD1/T46E) that Dr Bonta's medical report (17 August 2000, ex TD1/T46D) did not support Mr Allen's claim in respect of so many conditions. Dr Bonta stated in her report that the only new component of injury suffered by Mr Allen in July 2000 was that relating to the collarbone. In previous weeks Mr Allen had complained of both neck and right shoulder pain. He said that as the conveyor belt incident was not responsible for the re-aggravation of Mr Allen's neck and shoulder symptoms there was no indication as to what was responsible. Further, he was uncertain why Mr Allen had become incapacitated for work well after the circumstances described on 6 July 2000. Records indicated that Mr Allen was certified unfit for work from 24 July 2000 onward. If Mr Allen was fit for work on 6 July 2000 it was unclear why he was incapacitated after that date. The evidence did not satisfy the review officer that Mr Allen suffered any injury on 6 July 2000.
These decisions by Australia Post have obvious deficiencies. First, Mr Allen had himself in his incident report suggested that the connection between his work and his injuries on 6 July 2000 was transferring packages from the conveyor belt to wherever they were placed. Dr Bonta supported this in her letter referred to in paragraph 42 above in the fifth paragraph. Second, Dr Bonta did not in her report suggest that Mr Allen had no neck or shoulder injuries in July-August 2000. She said only that they were aggravations of the injury he suffered in March 2000. She had foreshadowed in May 2000 that Mr Allen could experience recurrences if he did not take care to avoid repetitive activities. Mr Allen himself saw the neck and shoulder aspects as aggravations of previous injury. Whether an injury is an initial injury or an aggravation or a flare-up of an underlying condition, if arising out of or in the course of employment it is compensable.
The tribunal, however, agrees with the review officer that it is peculiar that Mr Allen was able to engage in full duties, apparently full-time, from 6 to 24 July 2000 without seeking treatment. It is of course possible that Mr Allen's continued attendance at work aggravated the injury until it became unbearable but this was not Mr Allen's evidence in the tribunal. He told the tribunal that he soldiered on.
The tribunal on the basis of the above evidence makes the following findings:

The applicant suffered an injury in the course of his work for Australia Post on 7 July 2000. The tribunal accepts the evidence of Dr Bonta that he suffered new injuries of cervical and thoracic spine dysfunction, right shoulder supraspinatus tendonitis/tear and sternoclavicular joint arthritis (ex TD1/T40, T46D) and an aggravation of his neck and shoulder injuries from March 2000 (ex TD1/T46D). Dr Bonta saw Mr Allen at the appropriate times. She commented in ex TD1/T46D that as at 3 August 2000 Mr Allen still complained of the above pain. By 17 August 2000 he was still complaining of the variety of pains. Dr Bonta said that examination bore this out. The tribunal recognises that there is an inconsistency in Mr Allen's history in that he "soldiered on" for over two weeks before obtaining medical treatment and seeking time off work. However, given the credibility of much of the later medical evidence wherein Mr Allen is reporting consistently the sorts of symptoms he described to Dr Bonta when he first sought medical help it would be more inconsistent, in the tribunal's view, to hold that he did not suffer an injury. It may be that the date of work injury was later than 7 July 2000 but before 25 July 2000 in that the condition progressively worsened until Mr Allen had to seek help. In the tribunal's view that should not debar Mr Allen from compensation. Section 72 of the Act requires decision-makers (including the tribunal) to be guided by equity, good conscience and the substantial merits of the case, without regard to technicalities. Whether Mr Allen claimed at the correct time or properly described his injury is not an issue in view of s 72. The tribunal noted Mr Elliott's submissions concerning the counselling Dr Wolfe gave Mr Allen on 24 July 2000. However, the tribunal has difficulty seeing how this militates against the genuineness of Mr Allen's claim. Dr Bonta as late as 14 May 2001 (ex A5) wrote in support of the proposition that Mr Allen had never been really well since 5 October 2000.

The medical evidence shows that Mr Allen's descriptions of his symptoms has been remarkably consistent since July 2000. Even though there may be no apparent organic cause of those symptoms the tribunal considered that Mr Allen was a credible witness who actually experiences, and has experienced, the paid he describes. There have been various explanations for the pain, notably from Drs Champion, Scott, Rodger and Siddall. On the same basis that it found in favour of Mr Allen in relation to his rib cage pain the tribunal finds that Mr Allen suffers from the compensable conditions identified by Dr Bonta, cervical and thoracic spine dysfunction, right shoulder supraspinatus tendonitis/tear and sternoclavicular joint arthritis and an aggravation of his neck and shoulder injuries sustained in March 2000.

permanent impairment

The tribunal finds that Mr Allen does not qualify for a lump sum payment under ss 24 and 27 of the Act in respect of any permanent impairment. The permanent impairment claim was for "loss of sustainable movement of the thoracolumbar back" (ex TD2/T6). This brings table 9.6 of the Comcare Guide to the Assessment of the Degree of Permanent Impairment into contention. For any award under table 9.6 there needs to be a permanent restriction in thoracolumbar spine movement. To reach the minimum level of 10% there must be loss of something less than half the normal range of movement. Dr Champion suggested that Mr Allen attracted a 10% assessment in respect of the thoracic spine (ex A7). However, in his examination on 3 December 2000 he found movements of the thoracolumbar back satisfactory and activating no significant pain. Dr Scott (ex A4) on 9 May 2001 found that Mr Allen could bend to reach his low shins. Dr Gliksman on 19 October 2000 (ex R7) found that lumbar flexion, extension and bilateral rotation were full range and apparently pain free. On the basis of these observations, based on medical examinations, the tribunal cannot find that Mr Allen has thoracolumbar restrictions of any, or any appropriate, level.
CONCLUSION
The tribunal has found in the applicant's favour in application N2000/1668 dealing with injuries to his shoulders, neck and spine incurred on 7 July 2000. It has also found in the applicant's favour in N2000/1667 to the extent that the decision under review in that application dealt with his eligibility for incapacity payments and compensation for reasonable medical expenses associated with his muscle strain under his rib cage.
The tribunal will dismiss application N2000/1393 because the decision under review in that application was superseded by the reviewable decision in application N2000/1667.
The tribunal has found in the respondent's favour in application N2001/262 in agreeing with the respondent that the initial effects of Mr Allen's neck injury had ceased by 1 June 2000. In practical terms this has little effect because Mr Allen's success in application N2000/1668 has the effect of providing compensation coverage for this and other injuries with effect from shortly after the decision that the initial neck injury had resolved.
The tribunal has found in the respondent's favour in respect of that part of the decision under review in application N2000/1667 relating to Mr Allen's claim for permanent impairment in his thoracolumbar back.
DECISIONS
The tribunal dismisses application N2000/1393.
The tribunal affirms the decision under review in application N2001/262.
The tribunal sets aside the decision under review in application N2000/1668 and substitutes its own decision that the respondent is liable to pay compensation in respect of injuries to the applicant's shoulders, neck and spine.
The tribunal varies the decision under review in application N2000/1667 and decides that the respondent is liable to pay compensation in accordance with ss 14, 16, 19, 20, 21 and 22 of the Safety, Rehabilitation Compensation Act 1988 ("the Act") and that the respondent is not liable to pay compensation in accordance with ss 24, 25 and 27 of the Act.
The applicant is entitled to costs in accordance with the tribunal's general practice direction in relation to application numbers N2000/1667 and N2000/1668.

I certify that the 55 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member and Dr J D Campbell, Member
Signed:         .....................................................................................
  Associate
Dates of Hearing  18 and 19 October 2001
Date of Decision  23 August 2002
Counsel for the Applicant        Mr A Anforth
Solicitor for the Applicant         Canberra Lawyers, Barristers and Solicitors
Counsel for the Respondent    Mr G Elliott
Solicitor for the Respondent    Forners, Solicitors & Consultants