Di Carlo and Linfox Australia (Operations) Pty Ltd (Compensation)

Di Carlo and Linfox Australia (Operations) Pty Ltd (Compensation) [2021] AATA 5086 (22 December 2021)
Division:GENERAL DIVISION
File Number: 2018/6630
Re:Pietro Di Carlo
APPLICANT

AndLinfox Australia (Operations) Pty Ltd
RESPONDENT

Decision
Tribunal:The Hon. Matthew Groom, Senior Member
Date:22 December 2021
Place:Melbourne

The decision under review is affirmed.
............................[SGD]............................................
The Hon. Matthew Groom, Senior Member
CATCHWORDS
COMPENSATION – entitlement to compensation – review of determination of entitlement to compensation relating to accepted work sustained injury – consideration of capacity during relevant period – consideration of injury – decision under review affirmed
LEGISLATION
Safety Rehabilitation and Compensation Act 1988 (Cth)
REASONS FOR DECISION
The Hon. Matthew Groom, Senior Member
22 December 2021
INTRODUCTION

This is an application for review of a decision made by a delegate of the respondent dated 7 September 2018 affirming an earlier determination made on 23 July 2018 that found the applicant had no present entitlement to the payment of compensation for medical treatment expenses and incapacity benefits pursuant to sections 16 and 19 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act).
The applicant is 58 years of age and was employed by the respondent as a warehouse operator, Storeman Grade 2, a position he held from 18 November 2002. The applicant’s work included the manual lifting of cans of paint and the breaking down of pallets of paint as well as driving a warehouse forklift.
The applicant’s claim for compensation involved a condition described as a “partial tear of the left common extensor tendon (tennis elbow)” which is alleged to have been sustained in a work-related incident on 22 March 2018 as a result of removing plastic wrap from a pallet during the course of his work (the March 2018 incident).
The applicant described the incident as involving him tugging the plastic away from a pallet with both hands, causing him to experience a sudden sharp pain in his left elbow. The applicant subsequently completed an incident/investigation report in respect of the incident.
On 6 April 2018, the applicant lodged an application for compensation in connection with the injury he claims he suffered to his left elbow as a consequence of the March 2018 incident.
By way of a determination dated 30 April 2018, the Respondent accepted liability to pay compensation pursuant to section 14 of the SRC Act in respect of the applicant’s left elbow condition described in the determination as being a “minor aggravation of lateral epicondylitis of the left elbow”. The determination also found the applicant to be entitled to compensation for medical treatment expenses and incapacity benefits pursuant to sections 16 and 19 of the SRC Act.
Following the March 2018 incident, the applicant returned to work – initially on light duties – before returning to normal duties subject to a number of self-imposed modifications in relation to very heavy lifting.
The applicant ceased his employment with the respondent on 20 July 2018 and has not worked in any capacity since that time.
On 23 July 2018, the respondent wrote to the applicant to advise of its determination that there was no longer a present entitlement to compensation for medical treatment expenses or incapacity benefits in respect of the elbow condition.
On 31 August 2018, the applicant wrote to the respondent requesting a review of the 23 July 2018 determination. The respondent accepted the request for reconsideration despite it having been received out of time.
On 7 September 2018, the respondent advised the applicant in writing of its decision to affirm the 23 July 2018 determination denying present entitlement (the reviewable decision).
On 25 September 2018, the applicant made application for the review of the reviewable decision which is the matter presently before this Tribunal.
RELEVANT LEGISLATION
The relevant legislative provisions are set out in the SRC Act as follows:
14 Compensation for injuries
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
(2) Compensation is not payable in respect of an injury that is intentionally self‑inflicted.
     (3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self‑inflicted, unless the injury results in death, or serious and permanent impairment.
16 Compensation in respect of medical expenses etc.
(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
Note:          Compensation is not payable under this subsection in relation to certain claims (see section 119A).
(2) Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.
(3) For the purposes of subsection (1), the cost of medical treatment shall, in a case where the treatment involves the supply, replacement or repair of property used by the employee, be deemed to include any fees or charges paid or payable by the employee to a legally qualified medical practitioner or dentist or other qualified person for a consultation, examination, prescription or other service reasonably required in connection with that supply, replacement or repair.
(4) An amount of compensation payable by Comcare under subsection (1) is payable:
(a) if the employee has paid the cost of the medical treatment—to, or in accordance with the directions of, the employee; or
(b) if the employee dies before the compensation is paid and without having paid the cost referred to in subsection (1) and another person, not being the legal personal representative of the employee, has paid that cost—to that other person; or
(c) in any other case—to the person to whom the cost is payable.
(5) Where a person is liable to pay any cost referred to in subsection (1), any amount paid under subsection (4) to the person to whom that cost is payable is, to the extent of the payment, a discharge of the liability of the first‑mentioned person.
(6) Subject to subsection (7), if:
(a) compensation in respect of the cost of medical treatment is payable; and
(b) the employee reasonably incurs expenditure in doing either or both of the following:
(i) making a necessary journey for the purpose of obtaining that medical treatment;
(ii) remaining, for the purpose of obtaining that medical treatment, at a place to which the employee has made a journey for that purpose;
Comcare is liable to pay compensation to the employee:
(c) in respect of the journey—of an amount worked out using the formula:
where:
specified rate per kilometre means such rate per kilometre as the Minister specifies, by legislative instrument, under this subsection in respect of journeys to which this subsection applies.
numbers of kilometres travelled means the number of whole kilometres Comcare determines to have been the reasonable length of such a journey as it was necessary for the employee to make (including the return part of the journey).
(d) in respect of the employee remaining for the purpose of obtaining the treatment—of an amount equal to the expenditure so reasonably incurred in remaining for that purpose.
(7) Comcare is not liable to pay compensation under subsection (6) unless:
(a) the reasonable length of such a journey as it was necessary for the employee to make (including the return part of the journey) exceeded 50 kilometres; or
(b) if the journey made by the employee involved the use of public transport or ambulance services—the employee’s injury reasonably required the use of such transport or services regardless of the distance involved.
(8) The matters to which Comcare shall have regard in deciding questions arising under subsections (6) and (7) include:
(a) the place or places where appropriate medical treatment was available to the employee;
(b) the means of transport available to the employee for the journey;
(c) the route or routes by which the employee could have travelled; and
(d) the accommodation available to the employee.
(9) Where:
(a) an employee suffers an injury;
(b) a person has reasonably incurred expenditure in connection with the transportation of the employee, or, if the employee has died, of his or her body, from the place where the injury was sustained to a hospital or similar place, or to a mortuary; and
(c) the employee, or the legal personal representative of the employee, does not make a claim for compensation in respect of that expenditure;
Comcare is liable to pay compensation to the person who incurred the expenditure of an amount equal to the amount of that expenditure.
19 Compensation for injuries resulting in incapacity
(1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
(2) Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:
where:
AE is the greater of the following amounts:
(a) the amount per week (if any) that the employee is able to earn in suitable employment;
(b) the amount per week (if any) that the employee earns from any employment (including self‑employment) that is undertaken by the employee during that week.
NWE is the amount of the employee’s normal weekly earnings.
(2A) For the purposes of subsection (2), a week is a maximum rate compensation week, in relation to an employee to whom this section applies, if:
(a) it is a week during which the employee’s incapacity prevents the employee working the employee’s normal weekly hours because the employee is unable to work or unable to work at the level at which the employee worked before the injury; and
(b) the total number of hours that the employee has been prevented from working, or working at that level, during that incapacity, in that week and in all previous weeks, if any, to which paragraph (a) applies, does not exceed 45 times the employee’s normal weekly hours.
(2B) If, before the end of a particular week, the total of the hours that the employee has been prevented from working, or working at that level, in that week and in previous weeks, will exceed the total number of hours worked out in accordance with paragraph (2A)(b), then:
(a) subsection (2) applies in respect of the part of the week before that total number of hours is exceeded in accordance with subsection (2C); and
(b) subsection (3) applies in respect of the remainder of the week in accordance with subsection (2D).
(2C) For the purposes of paragraph (2B)(a), the compensation payable in respect of the part of the week to which that paragraph refers is an amount worked out using the formula:
where:
AE applies in relation to the whole of that particular week and has the same meaning as in subsection (2).
NWE is the amount of the employee’s normal weekly earnings.
NWH means the number of normal weekly hours worked by the employee before his or her injury.
X is the total of the hours in that particular week:
(a) that would have counted towards the employee’s normal weekly hours (whether those hours are worked or not); and
(b) that elapse before the total number of hours worked out in accordance with paragraph (2A)(b) exceeds 45 times the employee’s normal weekly hours.
(2D) For the purposes of paragraph (2B)(b), the compensation payable in respect of the part of the week to which that paragraph refers is worked out using the formula:
where:
NWH means the number of normal weekly hours worked by the employee before his or her incapacity.
reduced rate compensation entitlement is the rate of compensation that would have been applicable for the whole week had subsection (3) applied throughout the whole week.
X is the total of the hours in that particular week:
(a) that would have counted towards the employee’s normal weekly hours (whether those hours are worked or not); and
(b) that elapse before the total number of hours worked out in accordance with paragraph (2A)(b) exceeds 45 times the employee’s normal weekly hours.
(3) Subject to this Part, Comcare is liable to pay compensation to the employee, in respect of the injury, for each week during which the employee is incapacitated, other than a week referred to in subsection (2), of an amount calculated using the formula:
where:
adjustment percentage is a percentage equal to:
(a) if the employee is not employed during that week—75%; or
(b) if the employee is employed for 25% or less of his or her normal weekly hours during that week—80%; or
(c) if the employee is employed for more than 25% but not more than 50% of his or her normal weekly hours during that week—85%; or
(d) if the employee is employed for more than 50% but not more than 75% of his or her normal weekly hours during that week—90%; or
(e) if the employee is employed for more than 75% but less than 100% of his or her normal weekly hours during that week—95%; or
(f) if the employee is employed for 100% of his or her normal weekly hours during that week—100%.
AE applies in relation to the whole of that particular week and has the same meaning as in subsection (2).
NWE is the amount of the employee’s normal weekly earnings.
(3A) If, as a result of the incapacity:
(a) the amount per week payable to the employee in respect of his or her continued employment is reduced; and
(b) a pension under a superannuation scheme is payable to the employee;
subsection (3) applies in relation to the employee in relation to a week during which the employee is incapacitated as if the references in the subsection to the amount he or she was able to earn during the week in suitable employment were instead references to the sum of that amount and any amount of the pension referred to in paragraph (b) that is payable to the employee in respect of that week.
(4) In determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to:
(a) where the employee is in employment (including self‑employment)—the amount per week that the employee is earning in that employment;
(b) where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer—the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(c) where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or to continue to engage, in that employment—the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(d) where, after becoming incapacitated for work, the employee received an offer of suitable employment on condition that the employee completed a reasonable rehabilitation or vocational retraining program and the employee failed to fulfil that condition—the amount that the employee would be earning in that employment if he or she were engaged in that employment;
(e) where, after becoming incapacitated for work, the employee has failed to seek suitable employment—the amount per week that, having regard to the state of the labour‑market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment;
(f) where paragraph (b), (c), (d) or (e) applies to the employee—whether the employee’s failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete, a rehabilitation or vocational retraining program or to seek employment, as the case may be, was, in Comcare’s opinion, reasonable in all the circumstances; and
(g) any other matter that Comcare considers relevant.
(5) Where an amount of compensation calculated under subsection (3) exceeds 150% of the amount called the Average Weekly Ordinary Time Earnings of Full‑time Adults, as published from time to time by the Australian Statistician, the amount so calculated shall be reduced by an amount equal to the excess.
(6) Where an amount of compensation calculated under paragraph (3)(a) is less than the minimum earnings, the amount so calculated shall be increased by an amount equal to the difference between that amount and the minimum earnings.
(7) For the purposes of subsection (6), the minimum earnings of an employee shall be taken to be:
(a) $202, or, if subsection (8) or (9) applies in relation to the employee, the sum of $202 and the amount or amounts required to be added under whichever of those subsections applies; or
(b) an amount equal to 90% of the employee’s normal weekly earnings;
whichever is less.
(8) If there are prescribed persons wholly or mainly dependent on the employee, there shall be added to the amount of $202 specified in paragraph (7)(a) the amount of $50.
(9) If there are prescribed children in relation to whom this Act applies (whether born before, on or after the date of the injury) wholly or mainly dependent on the employee, there shall be added to the amount of $202 specified in paragraph (7)(a) the amount of $25 for each of those children, but an amount shall not be so added for a child in relation to any period before the date of birth of that child.
(10) If a prescribed child is:
(a) a prescribed person in relation to the employee; and
(b) the only prescribed person who is wholly or mainly dependent on the employee;
subsection (9) does not apply in relation to that child.
(11) If 2 or more prescribed children are each:
(a) a prescribed person in relation to the employee; and
(b) wholly or mainly dependent on the employee;
subsection (8) applies in relation to one of those children and subsection (9) applies in relation to the remainder of those children.
(12) In this section, prescribed person, in relation to an employee, means:
(a) the spouse of the employee; or
(b) any of the following persons, being a person who is 16 or more:
(i) the parent, step‑parent, father‑in‑law, mother‑in‑law, grandparent, child, stepchild, grandchild, sibling or half‑sibling of the employee;
(ii) a person in relation to whom the employee stands in the position of a parent or who stands in the position of a parent to the employee;
(iii) a person (other than the spouse of the employee or a person referred to in subparagraph (i) or (ii)) who is wholly or mainly maintained by the employee and has the care of a prescribed child, being a child who is wholly or mainly dependent on the employee.
Note:          In relation to subparagraph (12)(b)(i), see also subsection 4(2).
(14) For the purposes of the definition of prescribed person in subsection (12), a person who has the care of a child referred to in subparagraph (12)(b)(iii) shall not be taken not to be wholly or mainly maintained by an employee merely because the employee pays remuneration to the person for caring for that child.
Statutory Definitions
5A Definition of injury
(1) In this Act:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
ISSUES

The issues for determination are as follows:
(a)As at 23 July 2018 did the applicant continue to suffer from his accepted left elbow condition namely, “minor aggravation of lateral epicondylitis of the left elbow”?;
(b)If so, then, as at 23 July 2018, did he require further medical treatment as a consequence of his accepted left elbow condition such as to give rise to an entitlement to compensation in respect of reasonable medical treatment expenses pursuant to section 16 of the SRC Act?; and
(c)If so, then, as at 23 July 2018, did he continue to suffer from an incapacity of employment as a consequence of his accepted left elbow condition such as to give rise to an entitlement to incapacity payments pursuant to section 19 of the SRC Act?
FURTHER MEDICAL BACKGROUND
Shortly after the March 2018 incident, the applicant was seen by his local doctor and an ultrasound was undertaken of his left elbow. The ultrasound identified what was described in the relevant report as a “common extensor tendinosis and tear”.
On 11 April 2018, the applicant was medically examined by consultant orthopaedic surgeon, Associate Professor Dr Peter Steadman. On the basis of his examination Dr Steadman prepared a first report dated 27 April 2018. In his first report, Dr Steadman’s main clinical finding was that “there is some mild tenderness of the lateral epicondyle but mostly down in the bulk musculature of the forearm”. Dr Steadman also concluded that the applicant has “intrinsic wasting in his hands indicative of chronic ulnar neuropathy that might be due to his diabetes”. Dr Steadman did not have access to the ultrasound previously arranged by the applicant’s local doctor, so he arranged for the applicant to have an MRI of the applicant’s left elbow. Dr Steadman noted that the MRI:
…shows changes consistent with the ultrasound finding of a tendon tear of the common extensor origin. No other pathology is found in or around the elbow to constitute an injury. The features of the lateral epicondyle represent a constitutional disorder.
Dr Steadman also made the following observations in his first report:
…[The applicant] does not have a trade but he used to be in the military. He said he joined the military 36 years ago today and then left in 1996.
...[The applicant] reports that he does not have any hobbies outside work because he is too busy. He does martial arts though which he says he does not consider a hobby because it is a lifestyle. He said that at the moment he is not sparring but has been continuing to do some teaching with the coach.
…[The applicant] reports that he had a similar problem in his right arm 13 years ago when he was at Linfox. He felt better in one to two weeks. He did not have any treatment but he has never had any problems with the left arm and denies any other re-injury.
…[The applicant] reports that he is a diabetic and has had renal cancer a year ago and had his gallbladder out. He has had a hernia repair. He has no allergies.
…[The applicant] has a painful left elbow. He suffers from a constitutional condition known as tennis elbow which is now documented on the MRI with no other evidence of left elbow pathology contributing to the cause of his symptoms.
He has likely suffered a minor short-term aggravation at work pulling off the pallet and will need some work restrictions for about 6 to 8 weeks. Largely the radiological changes are likely to be mostly pre-existing and non-work-related activities are likely to have contributed to those findings as well.
The best treatment would be physiotherapy with resistance, strengthening and wearing the strap. Further to this, given his general demeanour and improvement, it is likely that he will continue to recover fully.
In his first report, Dr Steadman concluded that the applicant’s left elbow condition has developed as a consequence of multiple causal factors including, in particular, “his ongoing participation in martial arts and his diabetes”. Dr Steadman concluded that in his opinion aggravation of the applicant’s left elbow condition has been contributed to by his employment with the respondent and he estimated that the aggravation was likely to continue for a number of weeks. In the interim period, Dr Steadman recommended “physiotherapy with a gradual strengthening of the arm and upgrading his lifting capacity as his recovery progresses”.
There was evidence before the Tribunal that the applicant subsequently underwent some limited forms of treatment in respect of his left elbow condition. According to the applicant’s direct evidence, that treatment included a number of sessions of acupuncture undertaken by an osteopath. There were also references in the materials before the Tribunal of the applicant having undertaken a limited number of physiotherapy sessions funded through Medicare. This was consistent with the applicant’s direct evidence although the details provided in respect of such treatment were limited.
The applicant was assessed again by Dr Steadman on 2 July 2018, resulting in a second report dated 4 July 2018. In his second report, Dr Steadman noted that the applicant had continued to work and that:
He is doing normal hours and normal duties and not reporting any major modifications. He says that he is careful if he double handed lifts something, but that it is by way of limit at the moment and he manages this. He says that other than that his job is normal.
Dr Steadman also made some observations regarding treatment and ongoing symptoms in his second report as follows:
Treatment to date in my opinion has been suboptimal. He has been to an osteopath five times and had some massage with acupuncture. He says that the osteopath told him that he would not need to see him again as regularly. He reports overall there has been no change and his condition and it feels the same. He did wear a counterforce brace on the arm, but this was causing him a rash. He does not require any analgesia. He does report some symptoms if he is doing some activities at home but is not waking up with the pain. He said that if he tries to do the buttons up on his pants it sometimes hurts a bit. He said that he has trouble squeezing someone’s hand when they shake his hand and when opening door handles he experiences pain.
In his second report, Dr Steadman summarised his findings in respect of the applicant’s condition as follows:
[The applicant] has a painful left elbow. As is known, this is from tennis elbow which is a degenerative constitutional condition. He continues to have mild symptoms and it had previously been considered an aggravation. At some point in time there is a transition between that work-related aggravation of the constitutional condition and the ongoing condition and in my opinion that is now.
Overall, it is evident that it is going to take some more time to settle and according to evidenced-based data, this could take anywhere between about 6 to 18 months to fully recover, as is the nature of the condition. He was fortunate that when he had the same condition in the right elbow it settled in a short time and perhaps this is giving him a warped perspective on recovery and expectations. At a non-physical level, he is unhappy because he had a letter from the Linfox case manager indicating his condition was only “minor”.
In his second report, Dr Steadman made a number of other observations in response to specific questions put as follows:
...[The applicant] continues to suffer from left elbow pain which is again the result of the same diagnosed condition known as tennis elbow or lateral epicondylitis.
Based on his recovery and the slight development of acrimony it makes it difficult to predict his full recovery period, but I suspect it will be another 6 to 12 months now, as he seems to have entered the group that have ongoing symptoms. I am however of the opinion that his residual symptoms now represent the constitutional condition, and the initial work-related aggravation has passed.
…Further treatment is probably physiotherapy. He has not had any and I’m not able to validate the benefits of the osteopathy as it is not conventional medicine. I doubt that acupuncture will help. Most of these other treatments are useful to allow the passage of time.
…He is currently doing his normal duties and should be able to continue, meaning that it is not necessarily affecting his work.
…He does not have any [employment-related] incapacity. He is doing his normal job [except] some very heavy lifting modifications which he imposes.
On 4 July 2018, the respondent wrote to the applicant advising that, on the basis of Dr Steadman’s second report, the respondent had formed a preliminary view that the applicant was no longer entitled to payment of compensation in respect of medical expenses or incapacity payments under the SRC Act as a consequence of the previously accepted left elbow aggravation condition sustained on 22 March 2018 and providing the applicant with an opportunity to present any further evidence which may support his claim for an ongoing entitlement.
On 11 July 2018, following an assessment, the applicant’s orthopaedic surgeon, Professor Minoo Patel, wrote to the respondent advising that the applicant’s left elbow condition involved an acute tear of the common extensor and that the condition had not responded to conservative treatment and that surgery was recommended to repair the common extensor origin. In his letter, Professor Patel does not make any observations regarding work-related causation of the applicant’s condition.
The applicant was subsequently examined by rheumatologist Dr Tony Kostos on 30 July 2019. Following his examination, Dr Kostos prepared a written report of the same date. In his report, Dr Kostos took details of the applicant’s history and noted the following:
…Initially [the applicant] had constant pain in the lateral aspect of his left proximal forearm which he claims was a problem day and night. However he no longer has pain at night, although he has pain in the mornings. Generally he is comfortable at rest, but pain can be aggravated by use of the left-hand and any pressure he puts on the left forearm, particularly when leaning on the left arm.
...He also notes intermittent tingling his left wrist and hand.
...He is not having any current treatment.
...At home he is largely sedentary and “looks at the clock”. He also watches TV and reads. He has recently been dealing with Blackberries at home. He tries to walk regularly with his Son as both require exercise for weight loss. He visits his Mother on a regular basis who is in an Aged Care facility. He goes to Martial Arts training on Tuesday nights, but he described it as a “kids class”. He is able to drive.
.. He spent a considerable amount of time in the Army. Whilst there, he claims to have suffered from multiple “injuries” including his neck, back, right ankle and left calf.
However there was also a specific injury to his left forearm and he claims to have struck the lateral aspect of his left forearm which was intensely painful at the time and although it has improved it gave him pain from time to time, but did not actually stop him from “doing my job”.
About 10 to 12 years ago he claims to have developed “tennis elbow” on the right side “for about one week” which resolved spontaneously and has never been a problem since.
He was diagnosed with diabetes in 2000 and more recently has been on Insulin as well as medication. He also takes Twynsta for hypertension and Simvastatin for hypercholesterolaemia.
He has also had problems with both shoulders and the right side has been attributed to “bursitis” and he has been told that this is work-related.
In 2017 he had a cholecystectomy performed, that he was noted to have a right renal mass and he had a nephrectomy and was found to have renal cell carcinoma, but this is currently in remission.
Dr Kostos made the following observations as a result of his examination of the applicant:
On examination his neck movements are all restricted with pain in all directions.
Both shoulders show a slight loss of full elevation with discomfort. Both shoulders show a decrease in glenohumeral abduction with absent external rotation.
His right elbow shows a full range of pain free movements. There are no localizing [sic] abnormalities apart from a weakly positive Tinnel’s test over the right ulnar nerve. His left elbow shows a full range of movement, but he has a marked pain response in full extension. Other movements are pain free. He has very minor tenderness without thickening over the left lateral epicondyle, but there is marked tenderness in his proximal left forearm muscles. He has a strongly positive Tinnel’s test over the left ulnar nerve. Confirmatory testing for lateral epicondylitis is negative on both sides.
His wrists displayed decrease range of movement which is the same on both sides and is not associated with any pain.
His hands show heavy nicotine staining on the left index and middle fingers.
Neurologically he is weak in all muscle groups tested in his left distal upper limb and grip strengths were 21 on the left and 31 on the right. Pin prick sensation was normal in both hands.
Based on his assessment, Dr Kostos concluded in his report that:
The history and examination findings today are not consistent left lateral epicondylitis as being this man’s predominant problem.
Whilst he may have had some minor left lateral epicondylitis in the past, it is clear that most tenderness is noted in his left proximal forearm muscles and this finding was also confirmed in a report from Assoc. Prof. Peter Steadman, Orthopaedic Surgeon, in his report dated 27/4/18.
Confusion has arisen because it does not appear as though it is understood that tears of the common extensor origin are frequently seen in asymptomatic individuals and their presence on investigations is completely irrelevant without the appropriate clinical findings.
Therefore based on this information it may have been that the incident from 2018 might have resulted in minor left lateral epicondylitis, but this is clearly not the cause of his ongoing problems which are largely related to his left proximal forearm.
This man has had ongoing left forearm problems since an incident in 1996 whilst in the Army and there is extensive documentation of this incident and subsequent events in your file today.
It is interesting to note his reaction to my examination today which he also attributed to an examination by Mr Patel.
These findings are not typical of left lateral epicondylitis.
Given all of this information I wonder whether this man has posterior interosseous nerve entrapment which can occur as a result of a direct blow and may represent ongoing problems with his original injury.
… Based on the information that I currently have available I do not believe that his condition today has resulted from his work at Linfox and appears to be related to a pre-existing condition.
I do not believe that he is incapacitated from employment as a consequence of a work related condition caused by his employment at Linfox.
On 30 April 2019, the applicant was examined by orthopaedic surgeon, Mr John O’Brien. Mr O’Brien subsequently prepared a report dated 9 May 2019. In his report, Mr O’Brien made the following observations:
…The patient now describes a specific work related incident precipitating acute lateral left elbow pain. The patient indeed reports no prior symptoms associated with his right elbow reporting being fully active. I note in Dr Steedman’s [sic] report suggestion that the problem relates to a constitutional condition. It does appear a little uncertain using this term whether there is to suggest [sic] that common extensor tendon pathology was present prior to the reported incident. Indeed if this is proposed such an abnormality would have to have been considered to have been totally asymptomatic. The symptoms clearly being precipitated by the work related incident have been no medical evidence to suggest on the basis of a constitutional condition the symptoms would inevitably have occurred. Thus consideration of the acute onset of symptoms from the specific work related incident and the correlation of the symptoms and signs with investigation it would appear that employment is a contributing factor to this patient’s current symptomatic left elbow pathology.
Indeed I would regard the clinical condition as stable. The patient in fact has had very limited treatment in relationship to what is now clearly chronic left elbow pain. I would consider there is indication for appropriate course of hand therapy of both active and passive modality. If this failed I will consider it would be clinically indicated to repeat the MRI to confirm the ongoing source of pathology. This I would suggest would indicate a surgical course as was previously indicated in Mr Patel’s report.
Given the chronic nature of this patient’s pain and somewhat inadequate conservative treatment I would suggest likely prognosis is poor.
This patient now reports ongoing disability associated with the function of his non-dominant left arm. Left arm function is clearly limited when he attempts to actively use the common extensor muscles of the forearm such as lifting with the forearm pronated or with a twisting action of the forearm. Given these restrictions I would consider that the patient is not totally incapacitated. Indeed the patient himself indicated that he was able to continue basically his normal duties after injury having learnt to modify his lifting style to avoid aggravation of the left elbow pain. Unfortunately following the termination of employment the continuing restriction of arm symptoms has precluded the patient from obtaining suitable employment.
Dr Steadman subsequently prepared a third report in relation to the applicant’s condition, dated 29 August 2019. Dr Steadman’s third report involves a particular emphasis on the applicant’s medical history prior to the date of injury included in the summonsed materials as well as the reports of Dr Kostos, Associate Professor Patel and Mr O’Brien. In his third report, Dr Steadman noted as follows:
…In [the applicant’s] pre-employment medical it notes that he had tennis elbow 10 years ago and suffered an aggravation 3 years ago, but no side is specified in the forms appeared to be dated 26.10.2007. I noted in my initial report that he had a similar problem in the right elbow shortly after he started Linfox, but it settled quickly. This would imply to me that the pre-employment medical notes relate to the left arm and in my opinion is largely confirmed by the subsequent provision of the military medical history.
…Veterans findings in particular note left arm complaints in the past, no investigations seem to be available to make any specific commentary regarding a diagnosis, but the clinical findings look remarkably similar to those associated with my examination. The reports of the rheumatologist note the pain is in the upper extensors muscle mass of the forearm, as I did during my examination. This finding is likely highly relevant now that further military information is available with some form of non-specific left arm pain.
…My view of the problem with the left elbow is now more clearly consistent with a long-standing pre-existing left arm problem with its origins in military service. It is not just the argument that it is constitutional but now in my opinion a substantial and relevant clinical history exists.
…In my opinion based upon his new historical documentation, he now suffers from an ongoing long-standing problem with the left arm. I’m not of the opinion that the claimed incident of 22.03.2019 [sic] is the cause of the problem and that he suffers from a non-Linfox related cause for his left arm pain.
…I am no longer of the opinion suffered from an aggravation considering the now available past clinical history, the mechanism of the injury and the chronic degenerative changes of his arm with reduced movement that are likely to be due to age related diabetic factors. I.e. in my opinion he is suffering from disease based, rather than injury-based factors and conditions.
…The prognosis is potentially poorer than it was previously. The reason being that is now evident that he suffered from a long-term condition in his left arm for many years since military service.
…Based upon the history it is unlikely that any additional treatment such as surgical repair or injections will see an improvement in his outcome. It is evident that his condition in the left arm is very long-standing.
…There is a substantial evidence that this is now a long-standing problem. It appears to have initially occurred in military service and has been a cause of ongoing complaint for many years. In my opinion he is suffering from a long-standing disease process and the accelerator degenerative process associated with diabetes has contributed substantially to the left arm MRI findings. I am not of the opinion that there has been an acute tear of the left lateral epicondyle muscle attachment.

In the course of the hearing, Dr Steadman advised that he had also undertaken a further separate report on the applicant’s condition in connection with his “long history of employment” for insurance purposes. That report was dated 18 October 2018. Dr Steadman provided a copy of the further report at the hearing. The report predates Dr Steadman’s third report and is very brief. The Tribunal is satisfied that nothing of substance turns on this report.
CONTENTIONS AND CONSIDERATION
The applicant contends that he continues to suffer from his previously accepted condition although he does not accept that the condition is appropriately characterised as being a “minor aggravation”. Further, the applicant contends that he should be entitled to recover medical treatment expenses in respect of the condition. In his evidence, he told the Tribunal that the treatment he has received for the injury has been limited as a consequence of no longer having his medical expenses covered and also having fully utilised his entitlement to recover costs through Medicare. In his direct evidence to the Tribunal, the applicant did not appear to press his claim for incapacity payments arising in relation to the previously accepted condition, telling the Tribunal that did not believe he had any ongoing incapacity to work as a result of the condition although it did continue to cause him pain.
The respondent contends that the weight of medical evidence supports a finding that the applicant no longer continues to suffer from his previously accepted left elbow condition and that therefore the applicant is not presently entitled to compensation in respect of medical treatment expenses or incapacity payments pursuant to sections 16 and 19 of the SRC Act.
The respondent contends that any ongoing symptoms the applicant continues to suffer are attributable to a pre-existing underlying condition and that any aggravation to his pre-existing condition that resulted from the March 2018 incident was fully resolved as at 23 July 2018. The respondent also contends that, as at 23 July 2018, the applicant was not suffering from any employment-related incapacity as a consequence of his accepted left elbow condition. The respondent relies in particular on the reports of Dr Steadman and Dr Kostos in support of these contentions.
The applicant acknowledges that he suffered a previous injury of some form while serving in the military but maintains that the injuries he suffered at that time were to a different part of his arm and are not related to the injury he suffered in March 2018. The applicant contends that the injury he suffered in March 2018 was not an aggravation of an underlying condition or previous injury but rather an entirely separate injury. The applicant contends that the pain he continues to experience in his left arm is attributable to the injury he suffered in March 2018. In pressing his contentions, the applicant places significant reliance on the report of Mr John O’Brien.
The respondent contends that the Tribunal should place less weight on the report of Mr John O’Brien on the basis that it does not have proper regard to the applicant’s earlier injury suffered during his time in the military and that Mr Obrien’s report is “largely predicated on the applicants self-report”, which should be treated with caution given the applicant’s failure to disclose his previous military injury. Further, the respondent contends that Mr O’Brien’s report is against the weight of other specialist medical evidence before the Tribunal.
The Tribunal is satisfied that the weight of the independent medical evidence clearly supports a conclusion that the applicant is not incapacitated in respect of his employment activities in connection with his accepted condition such as to give rise to an ongoing liability of the part of the respondent to pay incapacity payments to the applicant in accordance with section 19 of the SRC Act.
The Tribunal now turns to the residual question of whether the applicant has a present entitlement to compensation for medical treatment expenses in connection with his accepted condition in accordance with section 16 of the SRC Act.
In his evidence the applicant described the circumstances of the March 2018 incident as occurring while he was removing plastic from a pallet. He told the Tribunal “…at times it [the plastic] might get caught, you give it a bit of a tug. At this particular time it got caught around the pallet, so I had to give it an extra tug, as I did I felt some pain in my arm”. The applicant told the Tribunal that he thought he better tell his supervisor, which he did and, as a consequence, he filled out an incident report. On the following Monday the applicant went and saw his doctor but that was not because of the pain in his arm but rather because he thought he had cancer. He told the Tribunal that he had cancer previously and lost a kidney. He subsequently had an ultrasound done and was advised by his doctor that he had torn his tendon.
When it was first put to the applicant that he had previously suffered an injury to his left arm prior to 2018, he denied it. However, the applicant subsequently went on to explain to the Tribunal that he had experienced an injury to his left wrist in 1996 while serving in the military but did not believe that it was in the same part of the arm as the injury he suffered in 2018. When the summonsed record of the applicant’s military injury was put to the applicant, including a reference describing the incident as involving a “severely bruised forearm”, the applicant told the Tribunal that he recalled the injury but believed it should have been described as involving his wrist not his forearm. When describing the incident that resulted in his 1996 injury, the applicant told the Tribunal:
Basically if you can picture some bays in a warehouse, you have the ground level, you have B level and you have others above that. I was grabbing a box from one of the shelves, didn't expect it to be as heavy as it was and as it came down almost loosened my grip, grabbed - still kept hold of it but I hit the bar. I still have the box in my hand but my wrist hit the bar.
In seeking to physically demonstrate the location of his 1996 injury, the applicant appeared to point to the lower part of his forearm but towards the wrist area.
On the basis of the materials before it, the Tribunal is satisfied that the injury the applicant suffered during his time in the military in 1996 was to the lower part of his left forearm, consistent with the summonsed record of injury, and that the applicant’s use of the term “wrist” in the early part of his evidence was simply confusion on the applicant’s part in relation to the appropriate description of the relevant part of his forearm.
When asked if he considered his 1996 injury to be a significant injury, the applicant stated “it hurt at the time, if that’s what you mean”. The applicant conceded that he had made a compensation claim in respect of the 1996 injury although he told the Tribunal that he only did so because he was told he may have been entitled to receive compensation.
When asked whether he continued to have problems with his left forearm beyond 1996, the applicant told the Tribunal that he did but to a “lessening degree”. He told the Tribunal that he didn’t have any substantial treatment for the injury and simply had to “put up with it”. He told the Tribunal that as time went on “it has sort of healed itself”. He told the Tribunal that he continued to be impacted by the injury from 1996 to about the start of 1999. He told the Tribunal “there was no problem with strength or handling things. The only problem I had was if it was touched it was a bit tender”.
Notwithstanding these concessions, the applicant maintained that he had not previously had an injury to his left elbow and that the pain he suffered as a consequence of the March 2018 incident was to his left elbow and not his left forearm or wrist. This is also consistent with the applicant’s written statement dated 23 April 2019. In his direct evidence, the applicant maintained that the pain he had experienced as a consequence of the injury in March 2018 was not related in any way to his 1996 injury.
In his report, Mr O’Brien states that the applicant, in the course of his examination, described “pain localised to the lateral aspect of the left elbow which extends along the lateral aspect of the proximal left forearm”. More specifically, Mr O’Brien recorded the applicant as reporting pain associated with the condition as follows:
The patient reported that the arm at rest pain is minimal although the patient states that if he does lean on the arm of the chair or a table with the left arm this can aggravate pain. In addition the patient stated that pain is aggravated by pulling also pushing with the left hand, wringing clothes or turning door handles any twisting of the forearm and in addition any attempt at what he describes as over hand lifting. The patient stated that his [sic] can precipitate pain which reaches a severity of 10 out of 10 on the visual analogue scale. The patient in fact reported that if he maintains a supinated left forearm and hand he can lift reasonable weights without severe aggravation.
Mr O’Brien goes on to conclude as follows:
Although there is currently no obvious restriction of movement of the left elbow there is clinical evidence of significant lateral epicondylitis confirmed by the presence of a very positive evocative test. These signs would indeed by in keeping with the noted pathology described on investigation the current clinical condition indicating that there had been no apparent healing of the reported common extensor tendon tear and certainly ongoing sign indicating the presence of tendonitis.
In his report addressing past history, Mr O’Brien states as follows:
[The Applicant] stated that 20 years ago he was diagnosed as suffering from type I diabetes. The patient reported that in June 2017 he underwent a cholecystectomy and it was following this the patient stated that he was diagnosed as suffering from renal carcinoma and in September 2017 underwent a nephrectomy. As a consequence of this surgery [the Applicant] stated he was off work for approximately five months.
Significantly, in his report, Mr O’Brien makes no note of any reference being made by the applicant to a pre-existing injury of the left forearm, wrist or elbow. Mr O’Brien specifically notes that the patient has described “a specific work-related incident precipitating acute lateral left elbow pain”. Mr O’Brien also notes that “The patient indeed reports no prior symptoms associated with his right elbow reporting being fully active.” In his report, Mr O’Brien notes Dr Steadman’s conclusion that the pain is associated with a constitutional condition and then expresses uncertainty about that conclusion but in doing so appears to rely on the absence of symptoms associated with such a condition prior to the work-related incident. Mr O’Brien ultimately concludes that, in his view, on the basis of the onset of symptoms in connection with the specific work-related incident and the correlation of symptoms present in his examination to those symptoms, “it would appear that employment is a contributing factor to this patient’s current symptomatic left elbow pathology”.
It is clear from Mr O’Brien’s report that, at the time of writing his report, he was not aware of the applicant’s prior injury to his left forearm as well as his other prior reports of pain in his left forearm. In these circumstances, the Tribunal accepts the respondent’s contention that little weight can be given to the conclusions reached by Mr O’Brien in relation to the cause of the applicant’s pain symptoms present at the time of his examination.
In contrast, both Dr Steadman and Dr Kostos conclude that the applicant was suffering a pre-existing condition at the time of his injury in March 2018 and that any aggravation that the applicant may have suffered to that condition as a consequence of the injury in 2018 has now resolved.
Dr Kostos concludes that, in his view, the applicant was not suffering any significant pain as a consequence of a tennis elbow condition and that any such condition that he may have had as a result of the injury in March 2018 or prior to that was mild. Dr Kostos notes that tears such as those described at the time of the applicant’s injury in March 2018 are “common and don’t necessarily mean much”. In his report, Dr Kostos was of the view that the applicant’s main issue is pain in his forearm attributable to a prior injury he sustained during his time in the military. However, in his direct evidence, Dr Kostos expressed a somewhat different view noting that on closer inspection of the records, the injury described during the applicant’s time in the military appeared to be in a different part of the forearm to that which the applicant has described as involving pain following his injury in 2018. As a consequence of this observation, Dr Kostos expressed less certainty regarding the cause of any pre-existing injury. However, Dr Kostos maintained his view that there is no evidence of a significant tennis elbow condition. Dr Kostos told the Tribunal that, in his view, he considered it more likely that the applicant was suffering a pre-existing condition as a consequence of use of his forearm prior to the injury in 2018 but he could not rule out entirely the possibility that the applicant’s present symptoms are attributable to some degree to the March 2018 incident or to his work-related activities more generally.
In contrast, in giving his direct evidence, Dr Steadman maintained a strong view that the applicant’s ongoing symptoms were not the result of the March 2018 incident or otherwise a consequence of the applicant’s work-related activities with the respondent but that they relate to a pre-existing condition of some form. Dr Steadman expressed less certainty in his direct evidence as to whether the applicant suffered an aggravation of the underlying condition as a result of the March 2018 incident but maintained his view that any such aggravation has resolved.
On the basis of the evidence, the Tribunal is satisfied that, at the time of the March 2018 incident, the applicant was suffering from an underlying condition in respect of his left forearm due to a prior non-work-related use and or/injury. The Tribunal is also satisfied, on the basis of the evidence before it, that the applicant’s ongoing symptoms in relation to his left arm are a consequence of that pre-existing underlying condition and not the applicant’s previously accepted aggravation of left elbow condition resulting from the March 2018 incident. Further, on the basis of the evidence before it, the Tribunal is also satisfied that any aggravation of the applicant’s previously accepted left elbow condition that resulted from the March 2018 incident was fully resolved as at 23 July 2018.
For these reasons the Tribunal is satisfied that, as at 23 July 2018, the applicant was no longer suffering from a condition attributable to his employment such as to give rise to a liability on the part of the respondent to pay compensation or other payments to the applicant in accordance with sections 16 and 19 of the SRC Act.
DECISION
The decision under review is affirmed.

I certify that the preceding 56 (fifty-six) paragraphs are a true copy of the reasons for the decision herein of The Hon. Matthew Groom, Senior Member

..........................[SGD]..............................................
Associate
Dated: 22 December 2021

Date of hearing: 26 October 2021

Date final submissions received: 2 December 2021

Applicant: By videoconference

Advocate for the Respondent: P. Crethary

Solicitors for the Respondent: HWL Ebsworth

[2021] AATA 5086

22 December 2021

Key Legal Topics

Areas of Law

Employment Law

Negligence & Tort

Legal Concepts

Causation

Duty of Care

Negligence

Remedies

Statutory Construction

Date of hearing:	26 October 2021
Date final submissions received:	2 December 2021
Applicant:	By videoconference
Advocate for the Respondent:	P. Crethary
Solicitors for the Respondent:	HWL Ebsworth