Cheung and Australian Postal Corporation - [2001] AATA 575

DECISION AND REASONS FOR DECISION [2001] AATA 575

ADMINISTRATIVE APPEALS TRIBUNAL )

)No.N1999/1323; N1999/1646; N2000/1134; N2001/295

GENERAL ADMINISTRATIVE DIVISION       )
           Re      Sophia CHEUNG
  Applicant
           And    AUSTRALIAN POSTAL CORPORATION
  Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member

Date22 June 2001
PlaceSydney

Decision The Tribunal – 1(a) Sets aside the reviewable decisions of delegates of the Australian Postal Corporation ("the Respondent") dated respectively 8 July 1999 and 8 October 1999; and (b) Determines that the Tribunal has no jurisdiction in respect of N2000/1134 insofar as it has been already set aside by the Respondent; (c) Varies the reviewable decision of a delegate of the Respondent dated 6 March 2001, by adding, after finding that compensation is payable to Sophia Cheung ("the Applicant") in respect of "supraspinitis tendonitis tear left shoulder" the words "and chronic pain syndrome in both upper limbs and neck", and (d) Determines that the effective date of this decision is 28 May 1999, being the date from which the Respondent ceased liability; and (e) Affirms that part of the Respondent's decision dated 6 March 2001 that assessed permanent impairment of "supraspinatus tendonitis tear left shoulder" at ten percent; and (f) Determines that at this stage the Applicant does not suffer from any other permanent compensable condition. 2. Orders that the Respondent pay the Applicant's costs of these proceedings pursuant to s67 of the Safety, Rehabilitation and Compensation Act 1988 as set out in the Tribunal's General Practice Direction.

..............................................
M T Lewis
Senior Member
CATCHWORDS
COMPENSATION — permanent impairment –- "supraspinitis tendonitis tear left shoulder" accepted as work-related – whether right shoulder and neck conditions are work-related – whether Applicant suffering from "organic" or "non-organic" condition – Applicant suffers from chronic pain syndrome - whether employment contributed to a material degree to Applicant's condition - whether entitled to permanent impairment in respect of chronic pain syndrome – credibility of Applicant

Safety Rehabilitation and Compensation Act 1988 – ss4(1), 24, 27, 62, 67

REASONS FOR DECISION

Mrs M T Lewis, Senior Member

This is a review of a number of determinations made in respect of Sophia Cheung ("the Applicant") by delegates of the Australian Postal Corporation ("the Respondent").
history of applications
On 8 July 1999 the Respondent made a reconsideration decision, pursuant to s62 of the Safety, Rehabilitation and Compensation Act 1988 ("the Act"), affirming a determination dated 28 May 1999 ceasing the Respondent's liability to pay ongoing compensation in respect of aggravation of the pre-existing lateral epicondylitis right elbow that the Applicant sustained on 15 November 1995. This was in answer to a claim for both hands and right elbow tendonitis and left muscular pain. An application for review by this Tribunal was lodged on 31 August 1999 in respect of that decision (N1999/1323).
On 17 August 1999 the Applicant lodged a claim for compensation in respect of "both shoulders and neck". That claim was disallowed by the Respondent on 30 August 1999. On 8 October 1999 a reconsideration decision pursuant to s62 of the Act, affirmed the determination dated 30 August 1999. An application for review of the reconsideration decision was lodged with the Tribunal on 27 October 1999 (N1999/1646).
Apparently in response to a request from the Applicant's solicitor dated 1 May 2000 to determine the issue of permanent impairment, the Respondent on 13 June 2000 made a further decision under s62 of the Act. This decision varied the determinations of 28 May 1999 and 30 August 1999 and found that the Respondent was not liable to pay compensation in respect of any injury to the right elbow, shoulder and neck. Liability was denied under all relevant provisions of the Act. That decision was appealed to this Tribunal (N2000/1134). The Tribunal notes that the determinations varied by this reconsideration decision on 13 June 2000 were primary decisions that had already been affirmed by reconsideration decisions. The reconsideration decisions of 8 July 1999 and 8 October 1999 are still in place. It is obvious that the purpose of the s62 decision on 13 June 2000 was to make an omnibus decision so that this Tribunal had jurisdiction to deal with the full range of issues, including permanent impairment. The Tribunal accepts that the Respondent's decision of 13 June 2000 achieves that end, notwithstanding any residual limitation arising from its failure to vary the reconsideration decisions rather than the primary decisions.
On 6 March 2001, just before the commencement of the Tribunal's hearing in relation to the Applicant's applications N1999/1323 and N1999/1646, the Respondent conducted a further review and issued a further reconsideration of its own motion. That decision was immediately appealed to the Tribunal (N2001/295) and joined with the other matters for hearing.
In the s62 reconsideration determination dated 6 March 2001, the Respondent found in relation to the Applicant's claim for "pain in both shoulders and neck" sustained on 9 July 1999, that the Respondent was not liable to pay compensation in respect of the right shoulder or the neck. In respect of the left shoulder, the delegate found that the Respondent was liable to pay compensation in respect of "supraspinitis tendonitis tear left shoulder" sustained on 9 July 1999.
In relation to the Applicant's claim for permanent impairment and non-economic loss pursuant to ss24 and 27 of the Act, the delegate found the Applicant was entitled to 10 percent whole person impairment of the left shoulder in respect of "supraspinitis tendonitis tear left shoulder" sustained, as assessed under Table 9.1 of the Comcare Guide to the Assessment of Permanent Impairment. This assessment relied on the report of Dr Potter dated 7 August 2000.
The Tribunal had before it documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975. The Applicant gave oral evidence at the hearing and the following documents were tendered on behalf of the Applicant:

Reports of Dr R A Evans dated 26 February 2001 (exhibit A), Dr Y K Lee dated 18 October 2000 (exhibit B), Dr C Sun dated 23 January 2001(exhibit C)
Sundry medical certificates in respect of the Applicant (exhibit D)
Radiologist report from Rayscan Imaging of 'ultrasound left shoulder', dated 14 June 2000 (exhibit E)

The Respondent called Dr Potter and Dr R Mellick to give oral evidence, and the following documents were tendered on behalf of the Respondent:

Three reports of Dr S Potter, two dated 7 August 2000 and one dated 25 August, together with a letter of instruction from the Respondent dated 18 August 2000 (all marked exhibit 1),
Radiologist report from Rayscan Imaging dated 11 November 1999 (exhibit 2)
Medical certificate issued by Dr Tang dated 15 November 1996 (exhibit 3)
Clinical notes from Dr Tang for the period 15 July 1994 to 26 January 1996 (exhibit 4)
Radiologist report from Rayscan Imaging dated 10 November 1999 (exhibit 5)
Copy of a brochure entitled "All In A Day's Work At Australia Post Mail Centres" (exhibit 6)

The Applicant has been employed by the Respondent since 16 October 1989 and she has maintained her employment with the Respondent as a mail officer throughout these proceedings. She worked on a rotating shift and her duties included an average of four hours a day unloading various bags of mail from the mail centre receiving docks and placing the mail bags onto a conveyor belt. The remainder of the Applicant's working day was spent doing other work on the mail room floor such as working on the mail sorting machine, indexing, working on the stamp cancelling machine and some manual mail sorting. She has been undertaking restricted duties for most of the time since October 1995.
the medical evidence
The medical evidence provides a detailed contemporaneous picture of the evolution of the problem the Applicant has suffered in her upper limbs, shoulders and neck since 1995. It provides an important context in which to consider the evidence given by the Applicant at the hearing.
Dr Tang
The Applicant attended Dr Tang, her general medical practitioner, on 7 November 1995, complaining of recurrent right index finger and middle finger tendonitis. He recommended that she not perform indexing duties. The Report of Dr Tang is not before the Tribunal, but reference to his report is at N1999/1323, T12, an internal minute dated 9 November 1995. Dr Tang's clinical notes (exhibit 4) record her attendance on that date in which he recorded "still ? pain in (R) middle finger and index finger 2º to tendinitis (sic)". He provided a medical certificate for her work. Her employer directed that she do no overtime until it was cleared either by Dr Tang or an occupational physician. On 14 November 1995 the Applicant lodged an incident report (N1999/1646, T14) in which she noted that she had consulted her doctor on 7 November 1995, and that on 9 November 1995 while using the mail sorting machine, she felt numbness across three fingers and pain in the index and middle fingers of her right hand.
Notwithstanding the work restrictions placed on the Applicant, on 15 November 1995 she attempted to swap duty with someone else, involving the Applicant working with the "dock group". She was instructed by her supervisor that she was not to do dock work because of her restricted duty, but the Applicant argued that dock work was not covered by her restricted duty and she proceeded to do it (N1999/1323, T15). The Applicant's oral evidence was that she understood her only restriction at that time was she was not to do indexing. The Applicant attended Dr Tang on 21 November 1995 (exhibit 4) complaining of "recent moderate severe (R) elbow pain + tender". An X-ray of the right elbow was normal and right elbow tendonitis was diagnosed. On 22 November in a further incident report the Applicant noted that when she did the dock work some of the bags seemed heavier than 16 kg, and soon afterwards the pain in "both hands, elbow" worsened. Dr Tang advised her employer on 23 November 1995 that the Applicant had acute right elbow tendonitis and right middle and index finger tendonitis. Again he recommended light duties, involving lifting less than 3 kg. On 28 November 1995 the Applicant lodged a claim for compensation, noting that she had worked on the dock, and pain was caused by lifting overweight bags (N1999/1323, T20).
Dr Dowda and Dr Lee
The Applicant was examined by Dr Dowda, occupational physician, on 28 November 1995. In his report (N1999/1323, T24) he noted a history that since mid October 1995 the right middle finger developed a swelling. No abnormality was detected and the joint was injected. It remained painful for four days and it took about a week for the swelling and pain to settle. She then noted that her right index finger was becoming very painful and swollen. Then, while working in the dock area she noted pain in the lateral aspect of her right elbow. Dr Dowda noted at the time of examination that the Applicant was experiencing pain and swelling in the proximal and interphalangeal joints of the index and middle fingers and "exquisite tenderness" over the lateral aspect of the right elbow. It appears that all these complaints were in relation to the right upper limb. The Applicant is right hand dominant. Dr Dowda diagnosed lateral epicondylitis in the right elbow. He found no evidence of tendonitis in the forearm or wrist. The symptoms in the fingers of her right hand were suggestive in his view of an arthritic condition.
Dr Dowda considered the Applicant was restricted in her ability to perform the full range of mail officer duties. She should be restricted from work requiring forced gripping and carrying of weights, and any activities requiring forced use of the extensor muscle group in the right forearm. She was restricted to lifting weights no larger than 7 kg. An upgrade program was instigated.
A determination was made in the Applicant's favour in respect of "aggravation of a pre-existing condition, namely lateral epicondylitis (R) elbow" on 15 November 1995. In the Tribunal's view this represents a misunderstanding of the medical condition reflected at that time. Any pre-existing condition could only have been in relation to her fingers. There was no pre-existing condition in the Applicant's right elbow, and the Tribunal so finds.
The Applicant was then referred by her local doctor to Dr Y Kai Lee, orthopaedic surgeon, who reported on 22 January 1996 (N1999/1323, T30). He noted tenderness at the lateral epicondyl that was aggravated by resisted extension of the wrist. (The Tribunal understands this to be a positive provocation test for epicondylitis). Dr Lee diagnosed lateral epicondylitis. There was also a tiny tender nodule in the right index finger that he thought might be an early ganglion, but as the pain had since subsided no action was taken. The Tribunal notes that at that stage her symptoms were confined to her right upper limb.
The Applicant was seen again by Dr Dowda on 23 April 1996. She told him that the pain in her right elbow improved after treatment by Dr Lee, but a few weeks before seeing Dr Dowda she had had a recurrence of the condition. She continued to be on light duties, and had resisted returning to full normal duties. In his report dated 24 April 1996 (N1999/1323, T32) Dr Dowda noted an audible click in the right elbow every time she pronated and supinated her hand. (The Tribunal understands on the medical evidence that this is a clinical sign of epicondylitis). Dr Dowda recommended continuation of restricted duties.
The Applicant was seen again by Dr Dowda on 2 December 1996. In his report dated 3 December 1996 (N1999/1323, T37) he noted that two months previously she had worked overtime on restricted duties, and after one week her right elbow symptoms increased. Previously she had continued working on restricted duties, sorting and taxing. Dr Dowda noted that the Applicant's right elbow was still tender and there continued to be clicking with pronation and supination in the elbow joint that might have been related to the head of the radius. Provocation test did not cause marked symptoms, but she complained of discomfort in the common extensor group of the right forearm. Dr Dowda noted that there was no evidence of lateral or medial epicondylitis or other pathology in the Applicant's left arm at that time although she complained of some discomfort in the left arm. Dr Dowda considered that the Applicant continued to suffer from right lateral epicondylitis. Dr Lee confirmed Dr Dowda's diagnosis (N1999/1323, T39).
Dr Potter
The Respondent then referred the Applicant to Dr Potter, rheumatologist, who reported on 11 February 1997 (N1999/1323, T43). By then the Applicant had developed bilateral and forearm "strain pattern" that he diagnosed as "chronic lateral epicondylitis, right much more than left". At the time of Dr Potter's examination the Applicant had no neck or shoulder pain and no hand pain. The chief focus of complaints was in the forearm more than the elbows. Dr Potter said –
A common provocative test for epicondylitis is not positive on the left but on the right side it is clear and forced extension by the right wrist with straight arm with effort does reproduce the right elbow and forearm pain.

Dr Potter diagnosed a "chronic elbow and forearm strain pattern" with the best descriptive diagnosis being epicondylitis. In relation to prognosis he considered "in the immediate future symptoms are likely to persist" and he recommended a continuation of her restricted duties. Dr Potter considered, on the balance of probabilities, the condition related to the Applicant's work. Moreover, he considered it was not an aggravation of a pre-existing complaint.

On 6 May 1997 a senior officer at the Applicant's employment reported that on numerous occasions the Applicant had complained to him of worsening pain in both elbows and forearms during her work activities (N1999/1323, T45). On 5 June 1997 the Applicant lodged an incident report (N1999/1323, T46), noting that she was favouring her right elbow, and this appeared to have affected her left elbow. She then lodged a compensation claim for left elbow tendonitis (N1999/1323, T47).
Dr Lee advised on 13 November 1997 that the Applicant suffered from bilateral lateral epicondylitis that has "improved a great deal". He recommended a continuation of her restricted duties (N1999/1323, T53).
On 21 April 1998 the Respondent noted that the Applicant was allowed to undertake overtime, within the physical restrictions already noted (N1999/1323, T54). It is apparent that, to that point, the Respondent was paying compensation to the Applicant for overtime that was unavailable to her because of her disability.
Dr Gliksman
The Applicant was then referred to Dr Gliksman, occupational physician, who reported on 18 February 1999 (N1999/1323, T64). Dr Gliksman noted that the Applicant complained of intermittent pain over the left elbow, laterally. Pain was present especially when lifting above shoulder height and when performing repetitive grip work with the left hand. She also complained of occasional paraesthesia-like sensation in the left hand that was noted not to follow any single peripheral nerve pattern. She had an occasional "electric shock" sensation over the left elbow, laterally, and similar symptoms in the right elbow both laterally and medially. This had been reported to Dr Lee, who treated with anti-inflammatory medication. The Applicant reported to Dr Gliksman that overall her symptoms had undergone a significant recovery over the past few years, but had not fully resolved. The Tribunal notes that the Applicant's history to Dr Gliksman is consistent with the history already recorded. He noted that X-rays of the hands taken on 27 November 1998 were consistent with mild osteoarthritic changes in some finger joints, and that an X-ray of the right hand on 1 December 1995 was reported by Dr Dowda to show no abnormality.
Dr Gliksman noted on physical examination that there was a full pain free range of movement of the cervical spine. No rotator cuff muscular wasting was observed. Examination of the elbows revealed tenderness to palpation at both left and right lateral epicondyles, but there was no swelling. Full bilateral pronation and supination was possible and was not accompanied by pain. No muscular wasting was observed. There was no diminution in thenar muscle bulk in either hand. Mild osteoarthritic nodules were seen, particularly in the fifth fingers of both hands. Sensorineural examination of the upper limbs was normal. He concluded –
Apart from tenderness to palpation over the epicondyles, I could find no clinical objective signs of ongoing epicondylitis. The clinical examination did not reveal a clear pathophysiological basis for the persistence of Ms Cheung's presenting problems. There does appear to be some evidence of mild osteoarthritic change in the upper limbs but despite this, I harbour significant reservations as to the objective nature of the persistence of Ms Cheung's presenting symptoms there were no clinical objective signs of ongoing epicondylitis.

Dr Gliksman considered, after communication with Dr Lee, that it was "quite unlikely" that the Applicant suffered from epicondylitis in either elbow and there did not appear to be a medical basis to her presenting problems (N1999/1323, T67).
Dr Sun

The Applicant was also examined by Dr Sun, consultant in rehabilitation medicine. He provided a report dated 12 May 1999 (N1999/1323, T72). Dr Sun opined that the clinical picture was consistent with bilateral forearm overuse syndrome with secondary muscular deconditioning of the shoulder girdle resulting in trapezius myalgia. He opined the Applicant's lack of progress and inability to upgrade from light duties over the past 3½ years was due to the delay in the instigation of proper rehabilitation treatment. He considered her to have a genuine work-related injury.

When Dr Gliksman received Dr Sun's report for comment, he said (N1999/1323, T77) -
…it is not physiologically credible that overuse syndrome could continue for a period of approximately four years, on long-term modified duties.
In the meantime, Dr Lee had arranged for Dr Teychenne to undertake a nerve compression study. In a letter to Dr Tang dated 24 May 1999 (N1999, T78) Dr Lee said this showed –
No definite evidence of nerve compression, … except a very mild decrease in the recruitment pattern within the right ADM muscle which is consistent with very mild ulnar nerve compression at the elbow. The findings are not bad enough to warrant surgical treatment…
The Applicant again lodged an incident report dated 14 May 1999 (N1999/1323, T73), having suffered "needle pain" in her "elbows, arms, wrists and finger", with numbness and throbbing. She had been handling small letter bundles of about 3 kg.
On 28 May 1999 the Respondent made a determination to cease liability in respect of "aggravation of pre-existing condition lateral epicondylitis right elbow" on and from that date (the date of the "primary decision"), preferring the opinion of Dr Gliksman. It was also determined, on the basis of Dr Gliksman's report, that the Applicant did not suffer from any ongoing medical condition, and hence she was fit for full duties. However, because of the long period she undertaken restricted duties, it was decided to upgrade her duties over a period "to prevent further injury". This was to occur during the period 28 June 1999 to 28 August 1999 (N1999/1323, T85). In the meantime, on 8 July 1999 a delegate of the Respondent, on reconsideration of the primary decision, affirmed that decision (N1999/1323, T86).
The following day the Applicant lodged another incident report regarding pain in both shoulders and neck, and also "fingers and thumb and wrists". She noted that after doing mail sorting for one hour she felt a stabbing pain in both shoulder blades and then in her "neck, wrists and finger". The mail sorting task was part of a supervised upgrade program.
Following that incident the Applicant attended Dr Sun on 14 July 1999. He certified that (N1999/1323, T88) –
The abovenamed presented with progressive worsening of (L) shoulder/scapula pain on use of OCR machine on 3 occasions within 8 days. Please review the use of this particular machine.
The Applicant then took some sick leave from 2 August 1999 because of this condition. The Tribunal notes an internal minute dated 25 August 1999 (N1999/1323, T97) that refers to a medical certificate from Dr Doong dated 2 August 1999 stating that she was suffering from "post operative reaction". However that certificate is not before the Tribunal. The Applicant's explanation of that to the Respondent at the time was that the certificate related to her receiving a "cortisone" injection in her shoulder on that date. Also in the same internal minute there is reference to a medical certificate from Dr Sun dated 4 August 1999, stating that the Applicant was suffering from "aggravation of (L) shoulder pain". Dr Sun certified that the Applicant was "fit for suitable duties" from 9 to 18 August 1999.
Dr Mellick, Dr Champion and Dr Lee
In the determination of 13 June 2000 (N2000/1134, T7) that the Respondent was not liable to pay compensation under any head of the Act, the Respondent relied on reports from Dr Mellick, neurologist, dated 17 January 2000 (N2000/1134, T4), Dr Champion dated 7 April 2000 (N2000/1134, T5) and a report from Dr Lee dated 10 May 2000 (N2000/1134, T6).
Dr Mellick examined the Applicant on 15 December 1999. In his report dated 17 January 2000 (N2000/1134, T4), in relation to the medical examination, he found there was no abnormality of the cervical, thoracic or lumbar contour, posture or movement. There was no disorder of the range of shoulder, elbow, wrist or finger movements. Dr Mellick noted that an X-ray of the left shoulder on 11 November 1999 was reported to reveal a bony spur at the anterior acromion. There was no significant abnormalities involving the acromio-humeral space and no rotator cuff calcification. Ultrasound of the left shoulder showed the rotator cuff to be intact. A CT scan of the cervical spine dated 10 November 1999 showed no evidence of disc prolapse or bulge. Nerve conduction studies on 12 May 1999 were apparently normal.
Dr Mellick considered that the pattern of symptoms described by the Applicant did not conform to an organic distribution, and physical examination was devoid of any organicity. He considered that she suffered from a chronic pain syndrome associated with somatisation and in his opinion it was not related to the circumstances of her employment.
Dr Champion examined the Applicant on 6 April 2000. In his report dated 7 April 2000 (N2000/1134, T5) he noted –
Mrs Cheung reported feeling a tight discomfort at the left side of her neck and also discomfort at the left shoulder. She was conscious of a cold sensation in the little and ring fingers. Light touch perception was reported as reduced in each little finger especially the left, and also less around the left elbow laterally. There was also "light" response in the medial forearms, ie the main sensory impairment to light touch was within the ulnar nerve distribution (or C8 dermatome). There were similar results to punctate pressure testing with reduction principally in ulnar nerve/C8 distribution, ie medial forearms and hand (there seemed to be somewhat inconsistent responses to sensory testing involving the ring fingers, difficult to interpret). All the fingers were rather cool without specific reduction of skin temperature in the little fingers. Vibration sense was also somewhat diminished along the medial forearms and hands. There was mild deep tissue tenderness in the forearms, particularly distally. The median nerves were probably mildly mechanosensitive to pressure stimuli with provocation of "numbness" particularly in the left thumb and right index finger. At the same time, she said that similar "numb" sensations were experienced in the little fingers. There was abnormal mechanosensitivity of the ulnar nerves probably more so distally at the wrist to pressure stimuli which evoked "numbness" in the little and ring fingers bilaterally. Percussion over the ulnar nerves in the cubital fossa caused some local sensations in the forearm only on the right side. Upper limb neural tension tests provoked pain along each arm especially medially more so on the left side where there was also shoulder pain. I could not identify any definite musculoskeletal category of disorder in the hands and wrists. Her right lateral epicondyle was mildly tender, the left more so with adjacent minor deep secondary allodynia. There was pain anteriorly and superiorly at the left shoulder on active and passive abduction. The range of shoulder movement was full and it was really on abduction that provoked pain. There was slight posterolateral shoulder tenderness. The signs suggested supraspinatus tendonitis. On examination of her neck, I noted reduced cutaneous sensation in paraspinal distribution particularly on the left side especially to punctate pressure testing. Deep pressure testing in the same region was somewhat reduced on the left side. Movements of the cervical spine through a full range activated some left sided neck pain extending paravertebrally on the left to the region of reduced cutaneous sensation. The mid and lower cervical vertebrae were tender to pressure especially on the left. There were no other abnormalities on examination generally. The left thumb which she had mentioned in the history seemed to be all right. (Tribunal's emphasis)

Dr Champion opined that the Applicant had acquired an occupational cervicobrachial disorder with the following components:

A cervical spinal pain syndrome with deep somatic referred pain to the left medial suprascapular region where there is cutaneous and deep hyposensitivity (the latter being not uncommon observations in regions of referred pain, particularly the cutaneous hyposensitivity, hypoaesthesia).
A painful disorder of the left shoulder with preservation of full range, with features consistent with rotator cuff tendonitis including the supraspinatus tendon and probably also more posterior components of rotator cuff tendon.
Minor abnormal mechanosensitivity of the median nerves.
Bilateral ulnar neuropathy particularly on the left side.
Lateral epicondylitis currently more prominently on the left side.

Dr Champion considered that these disorders arose from repetitive mechanical stimuli in the course of the Applicant's work. He considered her presentation and responses to examination to be realistic and reasonable. He said he was given no reason to doubt her integrity. He considered it likely that her symptoms will continue much as they are in the foreseeable future, particularly while she continues to work, albeit on light duties. He considered that she remained partially incapacitated for work.
Dr Mellick, in a supplementary report dated 22 June 2000 (N2000/1134, T8) noted that Dr Champion's comments did not reflect any "objective sign of diagnostic significance", and he concluded that the diagnosis offered by Dr Champion did not "represent an understandable diagnostic category which establishes an aetiological connection between the symptoms and an organic mechanism". Subsequently in his oral evidence Dr Mellick reflected that he comes from the school of thought that rejects the diagnosis of over-use syndrome and the various other diagnoses that have been used to describe that problem because of their "high degree of diagnostic imprecision". He considered that the other medical evidence before the Tribunal in this matter uses the diagnosis of "epicondylitis" with similar imprecision.
In his oral evidence Dr Mellick said he had no reason to doubt that the Applicant was genuine in her complaint about her pain. He noted the Applicant did not describe to him that she was having symptoms in her elbows but she did mention numbness in the fourth and fifth fingers of both hands. Taking her symptoms as a whole he considered there was no organic basis for them. Her history of previous right lateral epicondylitis did not alter his view of her condition now. He said, that one cannot diagnose epicondylitis without there being an associated inflammatory process present. He also said that while it makes no sense to say that the epicondylitis has spread, it does make sense to say that the epicondylitis was itself an expression of a chronic pain syndrome.
He said what is now apparent is a chronic pain syndrome with the focus elsewhere than specifically on the epicondyles. He considered this was very common in relation to chronic pain syndrome and the phenomenon of somatisation, which is not a medical or psychiatric illness. He considered that this process has its origin in the life circumstances of the individual and not in her work. He referred to it being a complex interaction of social, cultural and constitutional factors, and in cross-examination he conceded that that included the Applicant's work. Dr Mellick said that the primary basis of the somatisation process arises from the individual, and is a response to a stressful situation. Later in his evidence he modified his opinion and said chronic pain syndrome was not a disease entity "within the frame of reference of neurology".
Dr Mellick said he was not given any history of difficulty grasping or lifting objects or difficulty with digital dexterity. He found no limitation in the range of movement of the Applicant's arms or neck.
Dr Mellick was shown the MRI scan dated 18 October 2000, identifying the rotator cuff tear. He said the Applicant did not complain to him of symptoms in her left shoulder. She complained of symptoms in both shoulders and several other places. He considered that the MRI results had to be considered in the context of the Applicant's chronic pain syndrome. He noted that there was no sign of wasting or crepitation in the left shoulder compared with the right, and no sign of disordered movement of the left limb compared with the right. He considered that the left shoulder features would not explain the widespread distribution of symptoms involving her hands, back and neck. He considered that there was no significant left shoulder pathology as there were no signs to go with the MRI findings.
Dr Lee examined the Applicant on 5 May 2000. In his report dated 10 May 2000 (N2000/1134, T6) he noted that she had tenderness in the proximal part of the extensors of the right forearm muscles, and on the left side there was tenderness in the left lateral epicondyle. There was tenderness in the anterior aspect of the left shoulder, aggravated when lifting. He noted that the radiology was negative. He stated –
Mrs Cheung has soft tissue straining in her muscles resulting in discomfort in the various groups of muscles. This can certainly be caused by the type of work she was doing but her symptoms are too diffuse to account for any specific condition.
Dr Lee provided a further report dated 18 October 2000 (exhibit B). When examined previously he diagnosed right lateral epicondylitis and an "apprehension sign" in her left shoulder that subsequently, from an MRI on 20 July 2000, showed a tear through the insertion of the bicipital tendon at its insertion adjacent to the superior labrum, that he considered explained the Applicant's symptoms.
Dr Sun examined the Applicant on 13 November 2000 (exhibit C). Previously, on 18 August 1999, he had noted –
The implementation of the treatment programme was suboptimal. She had not attended therapy on a regular basis and had not been taking the medications as instructed. Given the lack of progress I recommended that she remain on restricted duties until there was further improvement in the left shoulder.

Dr Sun noted on 22 September 1999 that the Applicant's right arm pain had gradually worsened, and he considered the lack of progress and slight deterioration was due to non-compliance with the exercise program. She then did not keep her appointment for a subsequent consultation. She finally attended on 23 October 2000 with unresolved upper limb pain that she attributed to the repetitive nature of her work, although he noted that she had been managing light duties working full time. Dr Sun undertook a functional capacity evaluation and opined that the Applicant would have difficulty returning to her pre-injury work. He assessed that she was fit to work for six hours a day, five days a week, on selected duties.
Dr Evans

The Applicant was examined by Dr Richard Evans, physician, on 26 February 2001 for the purpose of these proceedings (exhibit A). The history he obtained was consistent with that recorded by other doctors whose reports have been noted already. Dr Evans also noted that the Applicant has "suffered a bit from depression" but has not had treatment for this. He recorded that there had been some worsening of all painful areas over the past year. He noted that she was able to cope with her light duties work, but has pain when working. He also noted that her left shoulder worried her most, then her right arm, and then the remainder of her problems.
On examination, Dr Evans noted the only evidence of over-reaction was with the tenderness felt in the upper arms that he considered was difficult to explain on an organic basis. He noted that there was no wasting of the muscles of the upper arms, forearms, or small muscles of the hands. There was tenderness over all the neck, extending to both trapezius muscles and the upper half of the thoracic spine to T6 level. Movements of both shoulders were reduced. There was no definite wasting of the muscles of the shoulders, no swelling of the shoulders, and no crepitus in the shoulders on movement. There was tenderness in both shoulders over the subacromial regions, the supraspinatus tendons and the long head of biceps tendons. There was also tenderness over the left acromioclavicular joint.
In respect of the Applicant's upper arms there was tenderness over the lower halves of each upper arm that suggested a non-organic component to her problem. There was "very extensive tenderness" over both lateral epicondyles, both medial epicondyles, and over the adjacent flexor and extensor muscles of the upper halves of the forearms. Provocative tests for medial and lateral epicondylitis were negative, although mostly they caused pain somewhere. Movements of the elbows were normal but she complained of pain in the left elbow with these movements. In effect there was global tenderness over all of the forearms, and for this reason Dr Evans considered it was not reasonable to attribute respectively to medial and lateral epicondylitis and to flexor and extensor tendonitis. There was also a global distribution of tenderness over all the wrist joints, suggesting a non-organic component. However, there was no swelling of the wrist, no alteration in their temperature and no crepitus on movement.
Dr Evans noted that an ultrasound of the left shoulder on 11 November 1999 was normal, but a further ultrasound on 14 June 2000 showed slight swelling of the supraspinatus tendon and a little fluid within the subdeltoid bursa. There was impingement with abduction. An MRI scan of the left shoulder on 20 July 2000 showed a minor partial intrasubstance tear through the insertion of the bicipital tendon at its insertion adjacent to the superior labrum.
Dr Evans noted that assessment was "difficult and complex" because of a significant amount of organic damage and a significant non-organic component. He considered that she had a "mild soft tissue damage of the cervical spine". She has mild impairment of neck movements and frequent headaches, more typical of tension headache than cervical headache. He considered the Applicant had damaged the rotator cuff of her left shoulder, and "very likely also to that of the right shoulder". Dr Evans said "accepting the symptoms, and much of the tenderness as stated, she suffers from both lateral epicondylitis and medial epicondylitis affecting both elbows". Dr Evans noted in respect of her wrists and hands "again accepting the symptomatology, as there is not much to demonstrate clinically, there is probably some tendonitis affecting the flexor and extensor tendons of the wrist". Dr Evans considered that the Applicant was fit for light work not requiring much bending or twisting of the neck, not lifting weights heavier than 7 kg, or vigorous or repetitive use of her arms. He opined that she is likely to continue to experience discomfort.
Dr Potter
The Applicant was examined by Dr Potter, rheumatologist, on 3 August 2000, at the request of the Respondent. In his report dated 7 August 2000 (exhibit 1) he noted the following history –
1.The symptomatic development of bilateral elbow and forearm pain quite precise, straight forward, during 1995 and it was mechanical enthesopathy in the elbow with a pattern of tennis elbow, initially, left more than right, now right more than left.
2.As the years have proceeded Mrs Cheung has also developed a more widespread pattern of pain involving neck, shoulders, arms and forearms which would not be typical of major rheumatic disease or definable injury and would suggest extra behavioural psychosomatic factors may operate.
3.In mid-1999 she became aware of significant new onset focal left shoulder pain and restriction, the obvious physical signs were loss of movement, pain on movement typical of left supraspinatus tear.
Dr Potter noted that the Applicant complained of tenderness involving her -
wrists, right worse than left, forearms, elbows, upper arms, intensity in left shoulder, trapezius muscle group, scapular muscle group and neck.

Although her neck moved normally she said it was sore to move. Except for her left shoulder the Applicant had full movements in her upper limbs. Dr Potter contrasted his present and previous examinations on 3 February 1997 (N1999/1323, T43). In his current report he made the following comparisons –

1.In 1995 this lady had a problem in right middle finger, I can't find a problem now.
2.In 1995 she had soreness in elbows, I accept the past complaint but her soreness in the elbows now is part of a myriad of other patterns of soreness in upper limbs and neck and shoulder girdle.
It would not be typical of focal epicondylitis.
In addition there may have been soreness in right thumb, not present now.
There are two residual ongoing themes of pathology in musculoskeletal terms.
(a)Broad area of pain and tenderness in neck, shoulder, both arms, so typical of fibrositis, that is a pattern not organically present, not structurally based and almost certainly a consequence of psychosomatic muscle tension.
(b)In mid-1999 this lady injured when lifting in the work place and has torn her left rotator cuff at the supraspinatus tendon. This is a significant disability in a right handed lady in this age group.

(Dr Potter later confirmed that his reference to 1995 should have been 1997). He considered the Applicant was fit for work as long as she avoids heavy lifting, carrying, and moving her left arm above shoulder height.

Dr Potter noted, having been referred to Dr Mellick's report, that different diagnostic labels are used depending on one's specialty. Dr Potter agreed with Dr Mellick that there was chronicity of symptoms and there was no physical basis for much of her symptoms over five years. He considered that Dr Mellick had not fully appreciated the incident to the left shoulder and the left shoulder restriction. He also noted that he had had the opportunity of examining the Applicant in 1997 when her forearm and elbow discomfort was far more prominent than in 2000. He agreed with Dr Mellick that there was no structural or anatomical explanation for the Applicant's current discomfort. Dr Potter said he used the diagnosis of "fibrositis" within his speciality to explain the broad area of discomfort, and he had assumed that Dr Mellick has used different jargon to explain the same phenomenon, eg "somatization". Dr Potter noted that the terms used were to indicate the operation of psychosomatic factors.
In his oral evidence Dr Potter said that the provocation test for epicondylitis produced a subjective finding. Having examined the Applicant he noted that the provocation test was negative – there was no focal problem in the elbow but rather there was a much broader area of pain and soreness. That was the key transition in the pathology between 1997 and the examination in August 2000. He said that on the first examination he thought the Applicant was "thoroughly reasonable…". He changed his view by the second examination because the history was of more widespread pain without a mechanism of a physical injury or illness.
Dr Potter considered the report of Dr Lee dated 10 May 2000 (N2000/1134, T6) to be consistent with his own conclusion. Dr Potter considered that when the Applicant was examined in August 2000, presenting with complaints of pain in her neck and shoulders, this was a "pain syndrome". He said that the selected duties provided to the Applicant were satisfactory so as not to initiate or aggravate her condition.
In cross-examination Dr Potter agreed that his first examination was some 15 months after the onset of her first symptoms and at that time he considered her prognosis in the "immediate future" to be "guarded". He agreed, however, that her symptoms could have continued for six or more months, or indeed up to 2000 or longer. He agreed that on the first examination a focal test indicated that she had epicondylitis in both arms, the right being far worse than the left. Dr Potter's concern is that now the pain in the Applicant's elbows is but one part of the clinical picture. The main syndrome by 2000 was much more widespread pain, of which her elbows were merely a token part. He considered this to be "the main clinical evolution of this syndrome". He also did not deny that the Applicant suffered pain.
Dr Potter said that some people suffering from a rotator cuff tear feel pain down the arm to the elbow, others might feel it across the chest, some feel it into the scapula, some feel it in the neck. However a tear in the left rotator cuff would not cause pain in the right shoulder. In respect of a minor restriction of her neck on movement, Dr Potter said that during the active phase of the rotator cuff tear, this is "thoroughly reasonable" as a pain response.
Dr Potter also considered that the experience of pain all day, every day, is typical of muscle tension or behaviour change or mood change – it reflects constant refractory pain. There is no physical process and therefore there is no inflammatory process.
Dr Potter also agreed that in some people significant pain and pins and needles and weakness in the little finger is associated with an ulna nerve defect where the defect is sited at the epicondyle. If that was so in the Applicant's case there should have been a consistent and regular history of this, but also there should have been some reproducible physical signs over a period of six years. Dr Potter did not obtain the history of little finger pain, nor did he have evidence on his examinations of reproducible physical signs. While he conceded it was possible that she still suffered from bilateral chronic lateral epicondylitis, he preferred to see the symptoms associated with her elbows as part of the generalised pain behaviour without any organic basis. He was concerned about separating out the elbows from the areas of generalised pain in the absence of objective signs. However, he was prepared to consider her left shoulder pathology as having a clear organic basis.
Dr Potter did not consider he was qualified to say whether the Applicant's present pain, that he considers is non-organic in nature, was a continuation of the condition she presented with in 1995. He said he purposely did not explore psycho-social factors that might be implicated, but he speculated that it was possible that the condition has continued over time but has changed significantly. He continued to feel that the Applicant was not exaggerating her symptoms, and he said he had no reason to doubt the genuineness of her complaints.
the applicant's evidence
It is apparent from the medical evidence that the various doctors who have examined the Applicant over the years have not always recorded a consistent history. The Tribunal is prepared to accept that the doctors recorded the history given to them. In a case such as this where the symptom complex has become so widespread, it would not be unusual for the Applicant to miss reporting part of the symptom complex. Her evidence to the Tribunal was presented in a forthright and genuine manner, over more than four hours. Notwithstanding many attempts to clarify her evidence, however, it was not always clear. Her presentation to the Tribunal was rigid and over-anxious, and her comprehension and expression of English was quite limited. Although an interpreter was present she mostly preferred to give her evidence in English. It is understandable, therefore, that her history given to various doctors during their examination has some significant omissions.
The Applicant was born in Vietnam on 28 January 1964. She came to Australia in 1979 where she completed her school certificate in about 1981. She then worked in various factory jobs. She married in 1983. She has two children, born in 1985 and 1988 respectively. She started work with the Respondent on 16 October 1989 as a mail officer.
She said that prior to 1995 she worked rotating shifts. She said she "always swapped" to a receiving dock shift, which was a heavy job, putting mail bags on and off ULDs. She said she worked four hours on the receiving dock. She said that although mail bags were supposed to be restricted to 16 kilos maximum weight, at times they could weigh up to 25 kilos. Apart from her work on the receiving dock she worked on mail sorting, indexing, and stamp cancelling. However, sometimes she worked on the bulk dock for the whole day.
The Applicant said that until September 1995 she had no problems with her arms. However, in September 1995 her right index finger became painful. She was working on the receiving dock at the time, and she continued to work despite the pain. She went to see Dr Tran, who prescribed "medicine and cream". It became more painful and she consulted Dr Tran again, who gave her an injection. The pain then progressed to her right middle finger about a month later. She noticed it when she grabbed a bag of mail to lift it. She continued to work throughout this period. Dr Tang provided a medical certificate requesting restricted duties. She understood that she was not to work on the indexing machine. However, in cross-examination she agreed that her restricted duties were those listed at T6, and these remained in place for one week. She then returned to her full normal duties.
On 15 November 1995 the Applicant was working on the delivery dock and there was a high volume of bags designated to her work station. She said –
I just keep loading and loading and loading until finished the truck and then after that I feel my arm really painful and really hot and numbness.

She clarified that she was referring to discomfort in both arms. She said she complained to her supervisor that a bag was "so heavy". Subsequently it was weighed at nearly 25 kilos. She said she continued her shift, moving to mail sorting. She found she could not lift her arm to do the sorting. She said her elbow in particular was very painful, and her arm felt very weak. She attended Dr Tran when she left work. He prescribed "deep heat" and Feldene gel. She was off work for two weeks and then returned on restricted duties. She did not do dock work, "overseer" work, or indexing. She continued to do small and large sorting, hand cancelling and some "face up" and tray loading and setting up the machine. She also did taxing.

In cross-examination the Applicant said in relation to her attendance on Dr Tran on 15 November 1995 that she complained of pain in both arms, the right being worse than the left. The Applicant insisted that she included reference to her right arm in her claim for compensation in 1995. The Tribunal notes that in her compensation claim dated 11 December 1995 (N1999/1134, T20) she referred to "Two hand & (R) elbow Tendinitis (sic). Left muscular pain". Apart from this being a misleading question, the Tribunal notes the clarity with which the Applicant recalled the location of her problems at that time. The Tribunal notes from Dr Tran's clinical notes (exhibit 4) that he referred only to right sided problems during many consultations in November and December 1995 and January 1996.
The Applicant said that at the conclusion of the restricted duties program on 31 December 1995 she did not return to full duties because she "can't do it" and also because no one from Occupational Health and Safety came to interview her to organise the change.
The Applicant said the pain did not go away. She found by the end of 1996 that her left arm was worse because she was using her left arm in order to protect her right arm. She conceded that she was not doing any OCR or dock work at that time. She continued using Feldene gel and Chi Ti Hot Pack. Dr Tran administered acupuncture in 1996.
The Applicant consulted Dr Lee in early 1996 and he injected her right elbow. This gave her relief for about ten minutes only. She used protective elbow braces recommended by Dr Lee that did not help. Her elbows remained very painful. She kept working through 1997 and 1998 and she continued to have pain. She took some 10 to 15 days off work during the year because of the pain. She considered that the air conditioning made her feel worse.
The Applicant said she still has pain in the forearm of her right arm and wrist, but in cross-examination she said it "comes and goes". She also has a few lumps and "little pain" on her ring finger and little finger of both hands. She is now unable to use chopsticks and her right arm is "really weak". She said she has difficulty hanging out clothes because she cannot reach higher than her shoulder. She cannot sweep or clean the house. When using a knife her pain becomes worse.
The Applicant agreed that on 9 July 1999 she commenced a "return to full duty program" on the basis of Dr Gliksman's report. She said her right finger and wrist became very painful after half to one hour of indexing. She said she then transferred to work on the OCR, that she did for 1½ to 2 hours. Her arm was sore. She said she complained about these problems but continued to work, but after one week she said "I can't handle the pain". She complained that her shoulders and neck were very painful after continually clearing the stacker of the OCR. The full trays were then put on a trolley at shoulder height. She said she took some time off at that stage and when she returned to work she was on restricted duties and has been on these ever since.
The Applicant said she now has pain in her right arm similar to the left. She still has a little pain and numbness in her last two fingers of each hand and also the middle finger of her right hand. When she does sorting she has pain and swelling in her forearm with "needle pain" in the forearm and sometimes in the wrist. She also has pain in her neck. She said she has difficulty moving her shoulders while driving a car, an activity that she does every day. She also has difficulty moving her neck when she drives.
In cross-examination the Applicant's attention was drawn to the fact that she did not mention her right elbow when she was describing the location of her problems previously. She said her pain goes "the full arm". She agreed that in demonstrating the way she moved her shoulders and arms she was able to carry out those movements, but she said this was because she was doing it without having to lift the trays full of letters. She said she does not have pain if she is able to lift with the support of her body rather than her arms.
submissions
The Applicant submitted that the original decision of the Respondent and the reconsideration was based on an inadequate understanding of the problem in that they did not properly address the fact that the Respondent had given compensation for right and left epicondylitis (N1999/1323, T50) and that they did not properly take into account Dr Gliksman's reservation of his diagnosis because no nerve conduction studies had been done, or his suggestion that a second opinion be sought (N1999/1323, T77). It was also submitted that the Respondent's reconsideration decision did not take sufficient account of the report of Dr Sun (exhibit C). The Applicant therefore submitted that the latest decision under review was flawed.
It was submitted for the Respondent that it had accepted liability for the Applicant's left lateral epicondylitis on the basis that it was secondary to the right lateral epicondylitis that the Applicant suffered initially. However, the Respondent submitted that that is as far as the evidence goes in relation to the left arm. The nature of the duties performed by the Applicant over most of the relevant period (1995 to the present time) have been, in the Respondent's submission, "so light as to almost preclude any further injury".
Injuries suffered after incident on 15 November 1995
It was submitted for the Applicant that her work with the Respondent was of extremely voluminous, bulk processing work. The nature of the work was repetitive, involving the use of the upper limbs. As a consequence of continually lifting heavy mail bags, the Applicant experienced consistent pain in both forearms and hands and she had a feeling of heat in those areas. The Applicant has provided substantial medical certificates relating to bilateral pain in her shoulders, forearms, elbows, wrists, hands and fingers. In early 1996 she began to experience problems with her left arm, because of having to favour her right arm in undertaking her duties. On the basis of medical evidence of this problem from Dr Potter, the Respondent agreed to continue liability for "bilateral epicondylitis" (N1999/1323, T44). It was submitted for the Applicant that this determination changed the previously accepted compensable condition from "right epicondylitis" to "bilateral epicondylitis".
It was submitted for the Respondent that there was no evidence that established that the painful condition of the Applicant's index and middle fingers of her right hand was in any way related to her work. The Respondent referred to a medical certificate provided by the Applicant relating that condition to osteoarthritis. Although the Respondent did not deny that an incident had occurred on 15 November 1995 or suggest there was fraudulent behaviour on the part of the Applicant, the Respondent noted that the certificate provided by the Applicant for the injury caused on that day was altered. The Respondent submitted that during cross-examination the Applicant did not deny that the document could have been altered, but she could not recall that it had been altered. The Respondent concluded that if the Tribunal agreed with its submission it could draw the conclusion that the Applicant was making more out of the incident than was ever really the case. The Respondent submitted that the evidence of Dr Tang (exhibit 3) and his clinical notes (exhibit 4) were consistent with a position where something happened to the Applicant at work, she did not feel any pain in her right elbow on the day, but felt pain a couple of days later.
The Respondent submitted that the Applicant was immediately placed on light duties after reporting the incident. Furthermore, the evidence showed that she has remained on light duties ever since, apart from perhaps one hour when she was asked to some indexing work, one week during which she carried out those same duties but worked overtime, and perhaps on three occasions over a period of eight days and for no more than an hour and a half or two hours at a time, when she worked on the mail sorting machine.
Injuries suffered after incident on 9 July 1999
It was submitted for the Respondent that although a determination was made accepting that she had a compensable injury to her left shoulder, the Respondent does not accept the entirety of the circumstances giving rise to that claim. It was submitted that "there was evidence both ways" and the Applicant had been given the "benefit of the doubt" in making a determination in her favour. The Respondent did not necessarily accept the circumstances alleged by the Applicant to have given rise to that injury, but accepted that an injury occurred.
It was submitted for the Respondent, relying on the cross-examination of the Applicant in relation to the duties she performed on 9 July 1999, that while operating the mail sorting machine there was no need for her to wait until the various trays were full and that she could have emptied them earlier when they would not have been as heavy. It was submitted for the Applicant that on her evidence if she had attempted to empty the trays before they were full she would have had her supervisor "on her back".
It was submitted for the Applicant that the existence of right and left epicondylitis from which she now suffers is supported by Dr Sun (N1999/1323, T72 and exhibit B), Dr Evans in his report dated 23 January 2001 (part of exhibit A), the subsequent report of Dr Sun dated 23 January 2001 (exhibit C) and the report of Dr Champion dated 7 April 2000 (N2000/1134, T5). This evidence should be preferred to the opinions of Dr Potter and Dr Mellick.
Submissions on the Medical Evidence
The Respondent disagreed with the Applicant's contention that following a further incident in July 1996, when she undertook a week's overtime, her condition was exacerbated. It was submitted that although Dr Dowda noted some tenderness in the Applicant's right elbow and some clicking with pronation and supranation, it was possible to read into Dr Dowda's findings that the Applicant did not suffer from right lateral epicondylitis at that stage. The Respondent submitted that Dr Dowda appeared to have given the Applicant the benefit of the doubt and accepted that the problem of which she had complained previously still continued.

It was submitted for the Respondent that, relying on the report of Dr Potter (exhibit 1) after examining the Applicant on 3 February 1997, the Applicant did not have a positive common provocative test for epicondylitis of the elbows, and that this condition had improved a great deal. It was submitted that the Applicant's complaint to Dr Gliksman on 18 February 1999 of intermittent pain over the lateral portion of her left elbow was not necessarily a symptom that one would associate with epicondylitis. Dr Gliksman found that apart from tenderness there were no objective signs of ongoing epicondylitis. Moreover, the Respondent noted that the reports of Dr Lee made no reference to the right elbow. It was submitted for the Respondent that the evidence of Dr Sun (exhibit C) should be read together with the evidence provided by Dr Mellick. Complaints made to Dr Sun did not include reference to the right elbow, nor did she mention pain in the right elbow during later consultations with him. When the Applicant was examined by Dr Mellick she included pain in the right elbow amongst the list of symptoms. Dr Mellick was unable to make any specific organic diagnosis based on his findings.
The Respondent noted that when Dr Champion examined the Applicant on 7 April 2000 he opined that her right lateral epicondyle "was mildly tender, the left more so". However Dr Champion considered that the most important ongoing disorder suffered by the Applicant was in her left shoulder, along with pain at the left side of the neck. The only real finding upon which Dr Champion appeared to have based his opinion in relation to the right elbow was that it was "mildly tender".
It was submitted for the Respondent that not only did Dr Lee make no reference to the Applicant's right elbow under the heading "physical examination", he noted under a heading "impression" that the Applicant had soft tissue discomfort of the various groups of muscles. He also stated that "this can certainly be caused by the type of work she was doing but her symptoms are too diffuse to account for any specific condition" (N2000/1134, T6). In a subsequent report dated 18 October 2000 (exhibit B) Dr Lee opined that the Applicant also had right lateral epicondylitis. However it was submitted that this reference could only be taken as historical given that in his previous three reports he made no reference to the right elbow.
It was submitted for the Respondent that the report of Dr Evans (exhibit A) contained a number of inconsistencies. Firstly, he could not reasonably have concluded that there were a large number of affected parts when the only symptom was the tenderness in the upper arms. Secondly, notwithstanding that no previous medical report had suggested "medial epicondylitis" Dr Evans' diagnosis was "lateral and medial epicondylitis affecting both elbows". That diagnosis appears to have been made only on the basis of the symptoms reported by the Applicant, notwithstanding his reference to there having been a significant non-organic component to the Applicant's condition and that much of the tenderness in relation to the upper arms at least was difficult to explain on an organic basis. More importantly, the Respondent submitted, Dr Evans' report recorded that the provocative tests for medial and lateral epicondylitis were both negative. The Respondent concluded that there was no way the Tribunal could seriously consider accepting Dr Evans' diagnosis of both medial and lateral epicondylitis when he stated that his own findings on examination did not support such a diagnosis.
It was submitted for the Applicant that only Dr Potter and Dr Mellick support the proposition that the Applicant's condition was non-organic and Dr Potter does not include the left shoulder condition in that category. It was submitted for the Applicant that Dr Potter diagnosed left and right epicondylitis in 1997 and that diagnosis continued for six months but could extend a lot longer. The Applicant submitted that the evidence of Dr Evans, Dr Sun, Dr Lee and Dr Champion is more persuasive in determining organic epicondylitis.
It was submitted for the Applicant that Dr Mellick is alone and is in conflict with Dr Potter and the other medical practitioners in relation to the left shoulder rotator cuff injury. It was submitted that Dr Mellick's conclusions were too extreme and, in contrasting his evidence with that of the other medical practitioners, his evidence should not be accepted.
It was submitted for the Applicant that on the evidence of Dr Potter, the Tribunal should accept the Applicant as a witness of credit. Dr Potter noted that the Applicant was not given to over reaction and was a genuine and reasonable person.
It was submitted for the Respondent that the evidence supported the proposition that the Applicant had a very clear sense of entitlement. It was submitted for the Respondent that when on each occasion the Applicant had been asked to upgrade her duties, she resisted, either by not complying or by lodging a further incident report within a very short time after being requested to carry out anything other than her normal restricted duties. Moreover, it was submitted for the Respondent that there was evidence to suggest the Applicant was on the receiving dock on 15 November 1995 because she insisted on being there, notwithstanding the efforts of her supervisors to convince her that it was work that she should not be doing. The Applicant submitted that the Respondent's argument about the Applicant's sense of entitlement is irrelevant.
It was submitted for the Respondent that one did not need to look for psychiatric explanations for the Applicant's behaviour. In circumstances where she made no allegations of any psychiatric condition and where no medical practitioner had given evidence, either documentary or orally, of any kind of psychiatric condition, the Respondent submitted that the Tribunal ought not go looking for a psychiatric explanation. The Respondent submitted that, apart from the Applicant's left shoulder condition, there was a complete absence of any identifiable pathology. It was submitted for the Respondent that the Applicant related her injuries to very specific incidents that had to be viewed against the background of her doing very light restricted duties throughout the relevant period.
The Respondent submitted it was "not credible" to prefer the opinions of Dr Sun and Dr Champion, in relation to the development of the Applicant's conditions, over the evidence provided by Dr Mellick and Dr Potter.
consideration of evidence and findings of fact
The Tribunal finds that the Applicant is a credible witness who is not consciously exaggerating her evidence. She is suffering from a rotator cuff tear of her left shoulder that has been accepted as work related. This is an organic condition and the diagnosis has been accepted by a number of experts, noting supportive signs and symptoms, and an MRI scan. Dr Mellick has put himself out on a limb in respect of his assessment/diagnosis of this condition, and in so doing, the Tribunal finds that it must then treat the rest of his opinion with considerable caution.
The Tribunal notes the Respondent's submission that the medical certificate of Dr Tran dated 15 November 1995 could have been altered subsequent to that date. While that is possible, the Tribunal is not reasonably satisfied that a later alteration was made. Certainly the "alteration", if it was such, was in a handwriting apparently similar to that used for the completion of the rest of the form. Moreover, even if Dr Tran added the words "+ right elbow tendinitis (sic)", the Tribunal finds that it does not materially alter the overall assessment of the evidence. The Tribunal is in no doubt that the Applicant did not alter the certificate.
On the evidence of Dr Potter the Tribunal finds that the Applicant's compensable left shoulder condition could precipitate pain in her scapula, neck or down the left arm to the elbow. However, this explains only some of her widespread pain that is now also distributed to both forearms, the little and ring fingers of both hands, the middle finger of her right hand, both elbows, and her right shoulder.
The Tribunal finds it impossible, on the evidence before it, to distinguish that part of the Applicant's pain that relates to an organic cause and that part that has no organic cause. However that is not fatal to her case. The Applicant has experienced pain in various locations in her upper limbs and/or shoulders and/or neck, since September 1995. While on the Applicant's evidence some of this pain has been intermittent and the location has been variable, there has been an overall continuity of upper limb pain.

The Tribunal notes the Respondent's caution that the Tribunal should not go looking for a psychiatric explanation. The Tribunal's response to this is that if there is a psychiatric condition present, then the parties should have ensured that such evidence was before the Tribunal. Additionally, of course, the Tribunal has a responsibility to exercise its duty to investigate of its own motion where that is necessary. Indeed, the Tribunal gave consideration to that avenue in this case, but decided that there was sufficient evidence to make the correct or preferable decision.

The Tribunal observes that although there are various specialties within the overall area of medical practice, each specialisation must also consider the individual in his/her totality. This provides a context within which the doctor's expert opinion is provided. Indeed, that is precisely what Dr Mellick did, in his oral evidence, when he referred to the phenomenon of somatisation and diagnosed a chronic pain syndrome. He did not doubt that the Applicant was genuine in her reporting of pain and tenderness. His concern was that there was no organic basis for it. While that might be reasonable for a neurologist, whose specialisation is in the area of organic medicine, the Tribunal's responsibility under the Act requires consideration of whether there is a 'disease', that is defined in s4(1) of the Act as –
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation.

In turn, 'ailment' means –

Any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development);

These definitions of disease are much wider in scope than Dr Mellick's consideration of "organic" disease.

The Tribunal notes that "chronic pain syndrome" that Dr Mellick himself diagnosed, is a common diagnosis in medical practice, and indeed there are medical practitioners who specialise in the treatment of chronic pain. There is no medical evidence in this case that stands strongly against the Applicant suffering from a chronic pain syndrome. The Tribunal's concern in the matter now before it is not whether the Applicant has an organic condition, but whether her non-organic condition – her chronic pain syndrome – has been contributed to in a material degree by her employment.
The Tribunal is impressed that the Applicant has maintained employment during the history of her condition. It is probably fortuitous that the Applicant was deployed on restricted duties for most of this period that was contrary to the intention of the Respondent. Indeed, efforts to have her expand to her full normal duties have been met with exacerbations of her condition. In any event, restricted duties are now necessary because of the left rotator cuff tear. The Tribunal finds that, notwithstanding being on restricted duties, from time to time various activities in the Applicant's employment during the period from 1995 to the present time have exacerbated her condition.
The Tribunal is reasonably satisfied that at the commencement of her condition she suffered from lateral epicondylitis, starting with the right arm and moving to the left when she tried to protect the right limb. However, over the years, and arising from her bilateral epicondylitis, she has developed a chronic pain syndrome that has been intermingled with either an ongoing epicondylitis and/or a rotator cuff tear. In other words, the Tribunal finds that what started off being an organic condition has over time become converted to a chronic pain syndrome. This chronic pain syndrome has coexisted with an ongoing organic disorder.
The only significant medical evidence that does not support the Applicant's condition being work related is that of Dr Potter and Dr Mellick. However both doctors would have the Tribunal believe that as there is no organic condition present then there is no compensable condition. As previously noted, the Tribunal has found on the evidence that the Applicant's previous organic condition has transmogrified to become a non-organic condition. In tracing the history of the condition the Tribunal is reasonably satisfied that the Applicant's chronic pain syndrome in her upper limbs and neck has a clear link with the performance of her work with the Respondent. The Tribunal also observes that the chronicity of the condition may well arise from the fact that it has been treated solely as an organic condition since 1995. She has never had treatment for the chronic pain syndrome.
The medical evidence, overall, has not helped the Tribunal to come to an holistic diagnosis of the compensable condition. Noting that the Respondent has already accepted liability in respect of "supraspinitis tendonitis tear left shoulder" then the best solution is for the Tribunal to vary that decision by adding "and chronic pain syndrome involving both upper limbs, right shoulder and neck". The effective date of the Tribunal's decision is 28 May 1999, being the date of effect of the reconsideration decision of the Respondent dated 8 July 1999.
The Tribunal will remit the matter to the Respondent with the Direction that the Respondent assess the payment of any compensation to the Applicant. In so doing the Tribunal notes that the Applicant continues to be fit only for restricted duties.
Permanent Impairment
There is no evidence before the Tribunal to enable it to be reasonably satisfied that the Applicant's chronic pain syndrome is permanent. Indeed, as it has never been the focus for treatment it is not possible to determine whether the condition is likely to be permanent. Hence, pursuant to ss24 and 27 of the Act the Tribunal determines that she is not entitled to payment in respect of that condition. As it is not possible to separate any referred pain from the left shoulder to the neck and left arm from the Applicant's work-related chronic pain syndrome relevant to those areas, it is not appropriate at this stage to assess anything other than the left shoulder condition.
The Delegate, in his determination dated 6 March 2001, assessed that the Applicant had a 10 percent permanent impairment of her left shoulder pursuant to s24 of the Act, using Table 9.1 and based on the assessment of Dr Potter. The Respondent submitted that the findings of Dr Potter of a 10 per cent whole person permanent impairment on the basis of restriction of movement of the left shoulder arising out of the left shoulder injury should be preferred. The Respondent submitted that the Tribunal should not find that the Applicant has suffered any whole person permanent impairment in excess of 10 per cent.
Dr Champion assessed permanent impairment for upper limb function using Table 9.4 of the Comcare Guidelines (N2000/1134, T5). He assessed 10 percent whole person impairment of the left upper limb, noting difficulty sustaining digital dexterity. Although Dr Champion considered the issue of dexterity to involve both upper limbs, the Tribunal does not consider it appropriate to implicate the right arm or neck condition in the assessment of the left shoulder condition.
In a report dated 22 June 2000 (N2000/1134, T8) Dr Mellick clarified that he did not consider the Applicant suffered from any permanent impairment. This is not surprising, given the rigid approach taken by Dr Mellick overall. Dr Mellick did not acknowledge the existence of any organic pathology in the Applicant's left shoulder, despite the clinical findings and the MRI scan. The Tribunal does not intend to rely on his opinion.
Dr Lee assessed the Applicant's permanent impairment at 15 percent permanent loss of efficient use of the left arm at or above the elbow, and 12 percent permanent loss of efficient use of the right arm at or above the elbow (exhibit C). It is not clear how Dr Lee has arrived at this assessment nor is it clear that he has used the approved Comcare Guide in making this assessment.
Dr Evans assessed the permanent impairment of the Applicant's left upper limb at 20 percent, using Table 9.4 (exhibit A). The Applicant sought to rely on this assessment. The Tribunal considers that Table 9.4 is not appropriate to use in this case as it does not enable one to distinguish between the Applicant's left shoulder problem that is a permanent impairment and her chronic pain syndrome that at this stage is not found to be a permanent impairment in determining the cause of difficulty with digital dexterity. In any event, on the evidence, the most one could say is that the Applicant has difficulty with digital dexterity rather than that she has no digital dexterity.
Having considered all the evidence and submissions in respect of permanent impairment, the Tribunal affirms that part of the decision of 6 March 2001 that assessed permanent impairment in respect of "supraspinitis tendonitis tear left shoulder" at 10 percent.
Costs
The Tribunal notes the submissions on behalf of the Applicant and the Respondent that the Respondent should pay the Applicant's costs. The Tribunal orders that the Respondent pay the Applicant's costs of these proceedings pursuant to s67 of the Act as set out in the Tribunal's General Practice Direction.
I certify that the 112 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis, Senior Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  6-7 March 2001
Date of Decision  22 June 2001
Counsel for the Applicant        Mr D Casperson
Solicitor for the Applicant         Mr K Foster, McClellands
Counsel for the Respondent    Mr B Kelly
Solicitor for the Respondent    Ms E O'Connor, Sparke Helmore