Du Plessis and Australian Postal Corporation - [2001] AATA 956

DECISION AND REASONS FOR DECISION [2001] AATA 956

ADMINISTRATIVE APPEALS TRIBUNAL      )
  ) No Q1999/1270
GENERAL ADMINISTRATIVE DIVISION       )      Q2000/107
           Re      GAVIN DU PLESSIS
  Applicant
           And    AUSTRALIAN POSTAL CORPORATION
  Respondent

DECISION

Tribunal Mr K L Beddoe (Senior Member) Dr K P Kennedy, OBE (Member) Mr I R Way (Member)

Date21 November 2001
PlaceBrisbane

Decision      The Tribunal affirms the decisions under review.
  (Sgd) K L Beddoe
  Senior Member

Decision No: 956/2001
CATCHWORDS
COMPENSATION - work related injury – postal delivery officer - broken left clavicle –- whether work-related incident a material contributing factor in current injury

Safety, Rehabilitation and Compensation Act 1988 s4, s6, s14, s60

Australian Postal Corporation v Nadge (FC 940463 21/6/94)
Fitzgerald v Penn (1954) 91 CLR 268 at 277
March v Stramare (1991) 171CLR 506

REASONS FOR DECISION

21 November 2001 Mr K L Beddoe (Senior Member) Dr K P Kennedy, OBE (Member) Mr I R Way (Member)

The respondent advised the applicant that it had decided to cease liability on and from 25 October 1999 for compensation for injury left clavicle suffered by the applicant as a result of a work-related incident (Q1999/1270).
By notice dated 16 November 1999 the respondent set aside its determination of 25 October 1999. By an application dated 23 November 1999, the applicant sought review of this decision
The respondent subsequently reconsidered the matter again and notified a further reconsideration decision on 23 December 1999. The applicant applied to the Tribunal for a review of this decision on 3 February 2000 (Q2000/107).
Section 14 of the Safety Rehabilitation and Compensation Act 1988 ("the Act") provides for compensation for an employee where that employee suffers an injury which results in death, incapacity for work, or impairment. Section 4 defines "injury" as:
(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment

In section 4 of the Act, "disease" is defined 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

Section 6 of the Act refers to circumstances, in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment. Such circumstances are not limited to those in the Act but include where an injury is sustained "while the employee was at his or her place of work, for the purposes of that employment…" (section 6((1)(b)).
At the hearing Mr Boulton appeared for the applicant and Ms Downes appeared for the respondent. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the "T" documents and further documents were tendered and marked as exhibits. Oral evidence was given by the applicant, Dr Sowby, Dr Morris, Dr Coroneos and Dr Nutting. A medical report and written supplementary statement were provided by Dr Boys, Orthopaedic Surgeon and marked together as Exhibit 17. Written statements were also given by the following Australia Post workers:
(a)      Julie Karen Beare, Night Sorter Dated 1 July 2001    Exhibit 4
(b)      Terence Sidney Graham Postal Delivery Controller Grade 1   Dated 10 May 2001 Exhibit 6
(c)       Wayne Jeanneret, Senior PDO     Dated 1 May 2001   Exhibit 7
(d)      Troy Spann, PDO    Dated 16 May 2000 Exhibit 9
(e)      Rhonda Larfied, PDO         Dated 25 June 2001           Exhibit 10
(f)       Kenneth Edward Bowen, Delivery Centre Manager     Dated 23 May 2001 Exhibit 12
(g)      Paul Reynolds, Delivery Centre Manager          Dated 19 June 2001          Exhibit 13
(h)      Roderick Paul Farrell, PDO           Dated 18 Jun 2001 Exhibit 14

Thomas Martin, PDO Dated 22 May 2001 Exhibit 15
(j) Robert Lowes, PDO Dated 31 May 2001 Exhibit 16

Both matters were heard together.
The main issue is whether the initial compensated work-related injury suffered by the applicant on 14 January 1998 ("the original injury") is a material contributing factor to the applicant's current medical condition.
We find the facts to be as follows.
The applicant was born on 19 September 1964. He is a painter by trade but sought and gained employment as a postal officer with the respondent in May 1997. On 14 January 1998 he was involved in an accident with his motorcycle whilst delivering mail in the course of his employment as a postal delivery officer ("PDO"). The applicant sustained a fracture to his left clavicle and was granted sick leave for three weeks. The applicant returned to work in February 1998 under a medical/rehabilitation program supervised by Dr Sowby. The program provided a graduated return to five hours per day and full duties. The break healed leaving a marked deformity (overlap and shortening) (T39, page 2 – "Examination", line 4) and upward bowing at the site.
In essence the applicant was a motor cycle delivery officer employed to deliver letters to domestic and business premises. The function seems to be one that requires the officer to comply with the road rules on the one hand but complete the duties as early as possible. That seems to us to have an inherent conflict because, as was explained to us, a strict compliance with the road rules will necessarily prolong the delivery process.
The applicant eventually had an accident on a crossover resulting in a fractured collar bone. After receiving assistance from a resident in the immediate vicinity of the accident he was taken for medical treatment by employees of the respondent. He returned to work after four weeks but on limited hours.
The respondent accepted liability for the period until 9 April 1998 when a medical clearance certificate was issued. He resumed mail delivery on 20 April 1998.
The applicant suffered bruising after a fall from a go-kart (either motorised or push-powered) in the early hours of Monday 23 March 1998 and was unable to report to work that day.
The applicant and his wife moved into their own house in June 1998 and thereafter the applicant carried out renovations including painting ceilings, putting up a plasterboard dividing wall and fitting it with a door, removing a fence and replacing it with a brick fence, and removing tree growth with a chain saw.
On or about 22 July 1998, the applicant hurt his lower back when picking up his mail delivery bike which had fallen on its side (T78). The applicant did not file an incident report form or submit a new claim. The applicant had three days off work (Exhibit 11, line 44).
Ms McLaren, a rehabilitation counsellor kept in constant contact with the applicant from 21 January 1998 regarding the applicant's progress. On 30 April 1998, the applicant reported that he was not having any problems on full duties and was happy for his rehabilitation file to be closed (T31). On both 14 August 1998 (T82) and 31 August 1998 (T34), Ms McLaren had a telephone conversation with the applicant. As a result of his advising the counsellor that he was having no problems with his injury, in conjunction with the fact that there had been no activity on the claim since 25 May 1998, the applicant's rehabilitation file was closed with effect 31 August 1998.
Sometime in either May or June 1999 the applicant painted ceilings in the home of Mrs Beare, a fellow Australia Post worker.
Evidence was given by employees of the respondent as noted in paragraph 7. That evidence satisfies us that there was some resentment among the applicant's work colleagues as to the applicant's attitude and attendance at work. Some of the evidence was equivocal and some had its foundation on rumour and innuendo. We have not given any weight to that evidence.
We were impressed however by the evidence of Mr Bowen who was the Manager of the delivery Centre where the applicant was employed. Mr Bowen had, in our view, adopted an objective assessment of the applicant as he was no doubt required to do in relation to all employees under his control. After a period away from the Delivery Centre Mr Bowen returned to the Centre in February 1999. It was then that he noted an attitudinal change in the applicant. In particular he formed the view that the applicant was not longer trustworthy and was making excuses for not performing his work to an acceptable standard. Mr Bowen said these excuses were generally health related. He found references by the applicant to a sore neck to be inconsistent with the way the applicant moved around the Delivery Centre. In that regard he had been told by others that the applicant had told them he had been involved in a go-kart accident but he had no direct knowledge of this.
Mr Bowen said he observed what he thought was exaggeration of symptoms by the applicant. In the result he counselled the applicant after Mr Bowen had made a point of observing the applicant's work performance. That counselling was done in the presence of a union representative and is recorded in the attachment KEB 3 of exhibit 12.
We have come to the view that Mr Bowen's evidence fairly reflects the circumstances to which he alludes. We prefer his evidence because it is direct evidence which does not depend upon hearsay. In the result we are satisfied that the applicant had become unreliable in his employment. In part that was said to be due to medical conditions (neck and dermatitis) and also due to general conduct. In the result Mr Bowen assessed the applicant's conduct, diligence and efficiency as "unsatisfactory" in a report dated 9 July 1999 (Exhibit 12).
On or about June 1999, the applicant made a further claim by phone for compensation in relation to a shoulder condition which he stated relates to his earlier claim. The applicant also made an undated claim in writing for "payment of compensation by Australia Post for periods of work incapacity and restricted hours over the period from July 1999 to date for which leave applications and medical certificates have been provided." (T63).
The applicant did not attend work for most of the months of August 1999 (recreation leave – Exhibit 11), September 1999 (T75) and was also absent from work from 1 October 1999 (T55, Exhibit 11) until 30 December 1999 (Exhibit 11). The applicant's leave records were not provided for periods after this latter date. In addition, the applicant was absent from work for various periods from 14 January 1998. The applicant continues to be an employee of the respondent.
The Medical Evidence
After his accident and initial treatment, the applicant was reviewed on 4 February 1998 by Dr Sowby, Visiting Specialist in Occupational Medicine of the Medical Services Unit ("MSU") Australia Post (T9). Dr Sowby reported that (paragraphs 5 and 6 - "Opinion" and "Discussion and Recommendation"):
"[The applicant] has a fracture of the mid shaft of his left clavicle that is clinically healing. He also reports experiencing some discomfort in his neck and upper thoracic spine. This is likely to relate to the antalgic postures and guarding that currently occurs with his fracture."
[The applicant] has improved sufficiently to commence a graded return to work on restricted duties. I have provided him with a certificate stating that he is fit to attempt this from 5.2.98. He is fit to perform right handed duties only, with no lifting above 5kgs using the right arm. This would make him fit for a selection of clerical and/or sorting duties. He would need to have regular breaks while performing these duties. I recommend that he initially commence the first week at 2 hours per shift, upgrading to 4 hours the following week."

Dr Sowby reviewed the applicant on 18 February 1998 (T14). Dr Sowby reported (T14) that the applicant had commenced working 4 hours per day and was "tolerating this whilst performing his selection of restricted clerical duties". An x-ray of the injury site showed healing of the fracture. However, Dr Sowby opined that full healing would probably take a further four weeks.
In his report dated 4 March 1998 (T18), Dr Sowby reported that the applicant's fracture had not yet consolidated. The applicant again reported symptoms in his low thoracic area. At this point the applicant was working five hours per day on light duties. Dr Sowby recommended a referral to a physiotherapist to organise an exercise program for the applicant's upper limbs including stretching exercises for his thoracic spine and neck.
In his report dated 18 March 1998 (T24), Dr Sowby reported that the fracture was progressing but had not yet healed. He also advised that the applicant's range of shoulder movement "had returned close to normal" (T24, paragraphs 5 and 4 – "Opinion" and "Examination").
At his interview with Dr Sowby on 1 April 1998 (report T28), the applicant advised that he had been "able to go go-cart racing, and despite an accident to his right shoulder experienced no significant problems with his left shoulder". Dr Sowby reported that the fracture had healed. Dr Sowby recommended that the applicant's hands-on physiotherapy sessions reduce and cease whilst the applicant continues to upgrade his home exercise program.
On 31 July 1998, the applicant saw Dr Sowby regarding "gradual increase in low to mid back pain" the applicant associated with "righting a motorcycle that fell and spilled mail…" (T80 – "Presenting Complaint"). The applicant was referred by Ms McLaren after she had received several telephone calls from the applicant advising her of the accident and of the fact that he would not be at work. The applicant also advised that he would only do light duties for a while (T79).
Dr Sowby diagnosed "upper lumbar sprain- resolving" (T80 - Assessment) and recommended continued physiotherapy and exercises as well as restricted work duties. Dr Sowby did not think a review was required unless the condition failed to resolve. The applicant did not mention shoulder or neck pain at this appointment.
In his oral evidence, Dr Sowby stated that he saw the applicant again on 4 December 1998 regarding the applicant's dermatitis. Dr Sowby related that the applicant did not report shoulder problems at that appointment.
On 16 April 1999, the applicant had another consultation with Dr Sowby. Notes of this consultation were attached to Dr Sowby's statement dated 2 July 2001(Exhibit 5). Dr Sowby reported that at that interview, the applicant advised him that the applicant's hobbies included renovating his house. Further, the applicant told Dr Sowby that in the last two months the applicant had been putting up plaster walls (explained in evidence to be three prefabricated partitioning walls into which the applicant fitted a door) and having symptoms. In particular, the applicant reported that his symptoms increased with stretching forward repetitively. Dr Sowby also noted that the applicant had been diagnosed with an allergy to the rubber bands used to hold bundles of mail together and restrictions had been placed on the applicant's contact with these.
On 23 April 1999, the applicant was examined by Dr Morris, Orthopaedic Surgeon at the request of his general practitioner, Dr Cardell. Dr Morris wrote a letter to Dr Sowby dated 5 May 1999 (T36) regarding his findings. Dr Morris noted that the applicant had been "left with pain which is basically centred in the medial border of his scapula" (paragraph 2), which the applicant had stated was not associated with any activity of the left shoulder or neck but was worse after he used the left shoulder a lot.
Dr Morris opined that the applicant could be suffering from "a thoracic disc lesion producing nerve root irritation which [was] producing a trigger spot over the medial border of the scapula" (paragraph 4). Dr Morris thought the applicant would be able to work as a postal delivery officer (paragraph 5).
On 4 June 1999, the applicant attended on Dr Sowby for a review of his fitness for duty. At the interview, the applicant reported "experiencing ongoing pain under the left scapular associated with prolonged repetitive activities such as sorting, streeting and delivery of mail." (T37, paragraph 2). The applicant advised Dr Sowby of Dr Morris's suggested cause of the pain.
Dr Sowby examined the applicant and opined that the "most likely cause of his symptoms is a biomechanical shoulder scapular dysfunction" in conjunction with the applicant's poor posture (paragraph 8 – "Assessment").
As a result of this examination, Dr Sowby recommended a further five or six physiotherapy sessions as well as a number of self management techniques for the applicant. He recommended that if there was no improvement after six weeks a repeat specialist review would be appropriate, and that the applicant may require redeployment to a position where there was only intermittent repetitive shoulder or sustained shoulder activity.
Apparently, as a result of Dr Sowby's recommendations, a further review was conducted by Dr Goode, Visiting Specialist in Occupational Medicine, MSU, on 8 July 1999. In his report of that review (T39) Dr Goode recorded that the applicant reported on-going left shoulder pain. Further:
"[The applicant] said he has had left shoulder girdle pain on and off since [the accident of 14 January 1998]. This would occur over the fracture site, over the superior aspect of the left rotator cuff, and over the left upper thoracic spine.
[The applicant] says he notices it at work and whilst on delivery. He has been building a brick fence at home.
[The applicant] says he had significant pain in his left shoulder girdle on Friday 2.4.99, and stayed off work on a sick leave basis. He was then off work Tuesday 6.7.99 for the same reason – he said he was in discomfort on Monday 5.7.99."

Although Dr Goode acknowledged that the fracture had healed in a less than optimal position, he "was not sure why it proved the source of pain and symptoms that it has" and he could "see no major left supra-spinatus tendonitis to explain major shoulder pain , or any major facet problem with thoracic spine" (T39, page 2 – "Opinion", paragraphs 1 and 2).
The applicant was again reviewed on 19 July 1999 where he advised Dr Goode that he was managing his normal duties and had attended physiotherapy. The applicant also commented that he had only been advised as to a home exercise program and that the physiotherapist did not want to use "hands-on" physiotherapy. The applicant understood that the physiotherapist thought the applicant was suffering from brachial plexus entrapment. Dr Goode noted in his report of this review (T41, paragraph 2) that no letter had been provided by the physiotherapist after three visits by the applicant. The physiotherapist, Ms Dalzell provided a report to Dr Goode dated 30 July 1999 (Exhibit F). Ms Dalzell's opinions are discussed later.
Dr Goode found that the applicant had a full range of movement of the shoulders, good power in upper limbs and no other upper limb neurological signs. Dr Goode also felt that the applicant should be fit to continue his normal duties

Among his recommendations after that review, Dr Goode recommended that the applicant complete his fourth physiotherapy session as well as continue the home exercise program with a further review in August. The applicant advised Dr Goode that he had seen his general practitioner and had been referred for a second orthopaedic opinion with Dr Nutting, Orthopaedic Surgeon.
On 21 July 1999, the applicant was again reviewed by Dr Goode regarding the applicant's upper shoulder problem. The applicant reported left para cervical facet pain and recurrent left shoulder girdle pain which he stated had started on Monday 19 July 1999 after work. The applicant advised Dr Goode that he had not attended work the previous day due to his left sided neck pain which had responded to physiotherapy. The applicant advised that he had personally paid for this physiotherapy. Dr Goode was unable to locate the source of the applicant's discomfort but thought it should settle within 10 days.
Dr Goode reviewed the applicant again on 26 July 1999. At this interview, the applicant reported continuing left para-cervical and left para-thoracic pain as well as left trapezalgia. The applicant reported that he did not attend work 22 to 23 July 1999. The applicant also reported that he had not yet had his third physiotherapy visit. The applicant had no upper limb symptoms but tenderness of both the left para-cervical and left para-thoracic facet columns.
Ms Dalzell advised in her report of 30 July 1999 that the applicant reported no improvement in his symptoms despite his reported compliance with the exercises he was shown to do at home (Exhibit F, page 1). She also opined in view of the symptom of burning in the scapula region reported by the applicant and the fact that the incident report form showed that the applicant has suffered a neck injury when he fell from his bike in January 1998, that there was C5, 6 or 7 disc involvement.
In her telephone evidence, Ms Dalzell told the Tribunal that her notes dated 9 September 1999 showed that the applicant's muscle strength had decreased. The applicant did not advise Ms Dalzell that he was painting ceilings but did complete a cervical spine disability questionnaire dated 30 September 1999 (Exhibit 2) wherein he indicated that he had constant neck pain, had difficulty driving because of neck pain and was unable to look behind him when driving because of neck pain. The applicant also indicated that he avoided heavy jobs because of his neck.
The applicant cancelled his appointment with Ms Dalzell for 14 October 1999 but she noted that he advised her that he had seen Dr Coroneos and that he had "stretched nerves".
Ms Dalzell advised the Tribunal that painters frequently suffered from neck and shoulder problems. She also advised the Tribunal that the applicant's neck muscles tested as weak.
The applicant was referred to Dr Nutting, Orthopaedic Surgeon by his general practitioner, Dr Cardell. Dr Nutting saw the applicant on 30 July 1999. In his report dated the same day, (T1, document 4; T46), Dr Nutting stated that the left clavicle fracture was healing well at that stage but that the applicant reported tingling in his hands, a feeling of ants crawling over his skin (dysaesthesia) and pain on rotation and extention of the head and neck to the left which improved with traction.
The applicant told Dr Nutting that two weeks previous (about the 16 July 1999), when he turned to look to his right on the bike, he suffered pain on the left side of his neck.
Dr Nutting reported that he observed C5/6 pathology in the applicant's x-rays dated 14 January 1998 and concluded that the applicant had C5/6 root irritation which was causing the pain the applicant said he was suffering. Strengthening exercises were recommended.
As recommended by Dr Goode, the applicant was reviewed on 4 August 1999 (Report at T45). The applicant reported that he had mildly improved and was "still continuing with some physiotherapy twice per week". The applicant reported that he had seen Dr Nutting, Orthopaedic Surgeon and that Dr Nutting thought that the problem "was mainly a cervical one".
Dr Nutting saw the applicant again on 15 March 2000 at the request of the applicant's representatives. In his resulting report dated 20 March 2000 (first document of Exhibit G), Dr Nutting stated that the applicant had advised him that he had attended a Dr Gilpin and Dr Coroneos. A report has not been provided by Dr Gilpin.
The applicant also advised Dr Nutting that he had persistent pain in the posterior aspect of the left shoulder and symptoms similar to those reported on 30 July 1999. Dr Nutting reported that (page 2, paragraph 5):
"It is only activity which bring on the problems of which [the applicant] complains."

Dr Nutting opined (at page 2, paragraph 3) that as no major pathology had been demonstrated, it was "a possibility that the [applicant] has either fibrosis or scarring of some description, which is not sufficient enough to cause permanent embarrassment of function, but which allows only minimal activity before [the applicant] has symptoms reproduced".
Dr Nutting did not believe that an arthroscopy would be appropriate and felt that the applicant did not suffer from a permanent impairment, but rather that the applicant had damaged something that was not immediately obvious and was causing a "nuisance" (page 2, paragraph 7).
In a follow-up letter dated 16 May 2000 (second document of Exhibit G), Dr Nutting stated that the possibilities of fibrosis or scarring stated in his report of 20 March 2000 were only offered as explanations of the cause of the applicant's persistent problems but he could not prove the existence of either.
In his oral evidence, Dr Nutting iterated that he believed the applicant's problem lay with the neck.
When it was put to Dr Nutting that the applicant had not had his accident late 1998, then had three weeks off followed by light duties Dr Nutting opined that his opinion would now be that the original injury was not a major contributor to the symptoms related to him by the applicant. It was pointed out to the witness that the applicant had not indicated that the accident occurred in late 1998 but rather that was when the applicant's parathesiae had begun.
Dr Nutting also opined that the applicant could paint ceilings within his limits but such an activity could produce the symptoms the applicant complained of. This would be particularly so if the applicant had been working at his normal job for a period of six hours before undertaking the painting and if the painting was no longer a normal activity. In addition, he told the Tribunal that the same symptoms could be produced by engaging in activities such as plastering and acting as a "brickies labourer".
Dr Nutting was surprised by Dr Morris's report dated 13 May 1999 which indicated that the applicant had full range of movement of his neck and left shoulder without pain on rotation.
Dr Nutting was not aware that the applicant had had an accident whilst riding a billy-kart.
After the applicant returned from recreation leave of three weeks he was again reviewed by Dr Goode on 1 September 1999. At this time, Dr Goode had received Dr Nutting's letter. The applicant reported that he was still experiencing left para-cervical, left trapezius and left clavicular pain. On examination, Dr Goode reported that there was a mild reduction in range of movement of the cervical spine generally.
On 8 September 1999, Dr Goode further reviewed the applicant's condition (report at T48). The applicant said that he was still experiencing left para-cervical pain, referred to his left deltoid, but not referred to his hand. He said that his symptoms were actually worse, despite being on restricted duties and that "he felt like his 'head was about to fall off'" when sitting in the car. The applicant reported cervical pain when looking down.
The applicant also felt he was being harassed at work. Dr Goode found no clinical features of depression.
Dr Goode opined (page 1 - "Opinion"):
I have not seen cervical X-rays, but if there is pathology at C5-6 as Dr Nutting indicates, then I would agree with Dr Nutting that cervical degeneration is most likely to be the underlying cause of [the applicant's] presentation. Cervical degeneration would fit the clinical picture.
However, I do not understand why the symptoms are as severe, protracted and pervasive as they have been, with really only a variable response to physiotherapy, although [the applicant] feels that further cervical physiotherapy may be of benefit."

Dr Goode recommended the Workcentre provide some non-statutory physiotherapy for at least six visits which was approved (T49). Dr Goode also recommended further restricted duties but expressed concern that if this attempt at graduated return to work failed, there may be a question mark over the applicant's fitness to work as a Postal Delivery Officer.
A further review was conducted on 15 September 1999. Dr Goode reported (T51) that the applicant said he felt significantly improved with two sessions of physiotherapy and he had no upper limb paraesthesia (pins and needles).
On examination, Dr Goode found continued reduced right cervical lateral flexion and forward flexion. Otherwise there was a good range of movement of the cervical spine, full abduction of the left shoulder and no localised tenderness over the fracture site or elsewhere.
At all reviews by Dr Goode, the applicant was asked to bring his cervical and thoracic x-rays with him and until 15 September 1999, the applicant omitted to bring these with him. The X-rays brought to that review were incomplete (no lateral view of the cervical spine) and the report accompanying the X-rays was for a different X-ray).
An X-ray report (Magnetic Resonance Imaging ("MRI") scan) by Dr Slater and Dr Nicolson was sent to Dr Sowby dated 1 October 1999 (T54). The X-rays were particularly looking for possible nerve entrapment or impingement. The report stated that:
"FINDINGS: The vertebral alignment is within normal limits. Normal signal is seen within the cervical and upper thoracic vertebra.
The cervical cord is normal in configuration and morphology with no abnormal signal to indicate a myelopathy or syrinx or other pathology.
No abnormality is seen at the craniocervical junction.
Normal signal is present in the intervertebral discs and there is no evidence of disc protrusion, although there are small central posterior disc bulges at C3/4 and C4/5. These do not result in cord compression or nerve root impingement.
There is no evidence of foraminal narrowing. No abnormality is seen in either brachial plexus on the coronal images however the coronal images have not extended sufficiently anteriorly to evaluate for nerve root compression at the level of the fractured clavicle and the patient will be recalled for further imaging of this region.
IMPRESSION: SMALL DISC BULGES AT C3/4 AND C4/5. NO EVIDENCE OF NEURAL IMPINGEMENT. NO BRACHIAL PLEXUS LESION IDENTIFIED. FURTHER IMAGING WILL BE ARRANGED OF THE LEFT RETROCLAVICULAR REGION.
ADDENDUM
Additional sequences of a T2 coronal, T1 coronal and T1 andT2 sagittals have been performed.
A healed fracture dislocation of the mid left clavicle is seen. The three anterior divisions of the brachial plexus might be vulnerable to compression from a fracture at this point but there is no compression seen. The more terminal branches surround the axillary artery also have a normal appearance.
No focal muscle atrophy detected.
OPINION: MINOR DISC BULGES AT C3/4 AND C4/5 WITH NO NEURAL IMPINGEMENT SEEN IN THE CERVICAL SPINE OR AT THE SITE OF THE FRACTURED LEFT CLAVICLE."

The applicant was reviewed on 4 October 1999 with the results of his MRI scan dated 1 October 1999. Dr Sowby, who conducted the review, found the MRI results essentially normal. The applicant continued to report ongoing neck and "superior left sided scapular pain associated with prolonged neck flexion and elevation activities of his left arm" (T55, paragraph 3). Dr Sowby stated that the reported symptoms continue to be of a neurological nature. The applicant had been off work for the previous week with neck symptoms.
Dr Sowby commented (at paragraph 5):
"On examination there was slight hitching of the applicant's left shoulder with slight reduction in his ranges of cervical movement most notably on right lateral flexion and right lateral rotation."

Dr Sowby also commented that it was unclear as to the exact cause of the applicant's ongoing neck and shoulder symptoms. Dr Sowby organised for the applicant to be seen by a Specialist Neurosurgeon, Dr Coroneos, on 7 October 1999.
Dr Coroneos prepared a report dated 8 October 1999 (T56). In his report, Dr Coroneos reported that the applicant told him he had experienced neck pain, left clavicle and left posterior shoulder pain at the time of his accident in January 1998.
The applicant told Dr Coroneos that he "had pain in the posterior left shoulder on delivering mail and then in early 1999 he experience a sensation of paraesthesia 'like maggots crawling over the skin' over the left posterior shoulder and this extended down his medial arm and forearm but did not involve his hand." (T56 page 3, paragraph 6).
In addition, the applicant told Dr Coroneos that duties such as sorting, bundling and sequencing caused neck pain and sensory symptoms in his left shoulder and left arm. The applicant also told Dr Coroneos that inserting material such as advertising material into envelopes caused left arm symptoms (T56 page 3, paragraph 10).
The applicant denied carrying out any carpentry, painting or home maintenance, but did work in the garden (gardening, mowing, edging) after which he experienced symptoms. Driving caused him neck stiffness. (T56, page 4).
A clinical examination revealed only that the applicant had a deformity in the area of the clavicle break. During the examination Dr Coroneos noted flecks of white paint on the applicant's upper shoulders and upper back. On questioning the applicant as to the cause of these, the applicant advised that "he had painted the kitchen ceiling over the weekend and had also performed some carpentry renovations" (T56, page 5, paragraph 1). Dr Coroneos also noted a "café au lait pigmentation" on the applicant's "anterior medial aspect of the left arm" (page 5, paragraph 6).
Dr Coroneos reported that the cervical spine X-ray of 19 January 1998 was normal and the thoracic spine X-ray of the same date showed postural scoliosis to the left but was otherwise normal (T70). Of the MRI of 1 October 1999, Dr Coroneos noted normal cervical spine and no evidence of compression or abnormality of the brachial plexus (T56, page 6 – "Investigations").
On 11 November 1999, the applicant again attended a review conducted by Dr Sowby of the condition of his shoulder and neck symptoms. At that review, Dr Sowby noted (Exhibit 5, paragraph 4) that the applicant told him:
"…[the applicant] was an owner builder but that he was unable to keep doing this because he thought he was under surveillance."
The applicant's general practitioner, Dr Cardell, who worked in a group practice called Medihelp at Capalaba, Brisbane, prepared a chronology of events within her knowledge for the applicant's solicitors dated 30 July 1999 (T59; Exhibit D). Dr Cardell reported that the applicant required a script for strong pain killers after his accident in January 1998, but was able" to remain full-time on light duties at work with the odd day off".
Dr Cardell's chronology of the applicant's attendance at Medihelp, records that the applicant complained on 24 July 1998 of low back pain present since the accident but worse over several days. She also recorded against that dated that:
"[the applicant] had a few days off and physiotherapy for 3 weeks".

The applicant returned on 4 February 1999 again with low back pain "aggravated by bike riding". Dr Cardell reported that the applicant was prescribed anti-inflammatory medications and reported that "physiotherapy [was] restarted".
The applicant advised Dr Cardell on 12 March 1999 that he had left shoulder pain and tingling. Dr Cardell recorded that the applicant was referred to Dr Teh, surgeon. Dr Teh sent a letter to Medihelp dated 31 March 1999 (Exhibit B) in which he stated that the applicant had been suffering "tingling burning and shooting" pain in his clavicle and down the spine of his scapula since the accident of 14 January 1998. He also opined that the applicant had a neuroma and recommended orthopaedic review.
That review was conducted by Dr Morris, orthopaedic surgeon and has previously been referred to (, T46). Dr Morris, in his letter to Medihelp dated 13 May 1999 (Exhibit C), reported that the applicant had been left with pain centered under the medial border of the left scapula after his accident. Dr Morris also reported:
"The pain is present when he sits and is not related to activity of the left shoulder or neck. However, he does notices if he uses his left shoulder a lot the pain becomes worse afterwards"
When I examined [the applicant] he really had a full range of movement of the neck and that did not produce any pain. He also had a full movement of the left shoulder and that didn't produce any pain. I saw the x-rays you had done a year ago which showed the fractured clavicle was uniting."

Dr Morris opined that the applicant had nerve root irritation producing a trigger spot over the medial border of the clavicle and recommended exercises to build up the muscle strength in that region.
Dr Morris also gave evidence by telephone. Dr Morris told the Tribunal that he was not aware that the applicant had suffered an injury to his right arm in a billy-kart accident, that he painted ceilings or had carried out renovations. Dr Morris had not seen any reports by any other doctors. He did opine that these activities could produce the symptoms or, if the symptoms were present before these activities were undertaken, could contribute to their ongoing nature. Dr Morris stated that the cause of the applicant's symptoms were difficult to pin down.
The applicant is recorded by Dr Cardell as presenting in March, April and May 1999 with "several presentations". No mention was made at these appointments of shoulder, neck or scapula pain. Dr Cardell recorded that the applicant remained at work with anti-inflammatories and analgesics but did not explain what these were prescribed for. By 6 July 1999, Dr Cardell noted that the applicant was "having the odd day off work, seeing a physiotherapist and seeking a further orthopaedic opinion".
On 27 July 1999, the applicant presented with his family. Dr Cardell reported:
"They are all suffering as a result of the applicant's chronic pain and what sounds like some harassment from workmates.
We have started some antidepressants and counselling.
There has been some response to physiotherapy."

Dr Craddock of Medihelp Capalaba also prepared a chronology of events with regard to the applicant's attendance at the surgery and reproduced this in a letter dated 15 May 2000 (Exhibit E). In addition to the information noted by Dr Cardell, Dr Craddock noted that on 13 April 1999 the applicant "was prescribed Voltaren 50mg twice a day for the persistent pain in his left shoulder".
The applicant returned on 23 May 1999 and complained that "the pain in the left shoulder was being continually aggravated by his work as a mail delivery worker".
Dr Craddock noted that on 21 July 1999:
"…the pain in the left side of [the applicant's] neck persisted and was being aggravated by [the applicant's] work. There was reduced range of movement of the neck.".

In his letter, Dr Craddock reported that on the 29 September 1999 "the pain in the left side of the neck and shoulder were persisting, and he was given further certification". The same pain was reported on 14 October 1999, 14 February 2000, 24 February 2000 and again on 25 October 1999 when it was also recorded that reduced range of movement was present.

Dr Craddock also reported that :
"On the 3 November 1999 it was noted that the pain may be related to a brachial plexus nerve injury."

As at 24 February 2000, the applicant was reported by Dr Craddock to be "waiting to be seen at the Pain Clinic for further management of his chronic pain".
When Dr Sowby reviewed the applicant on 18 October 1999 (report at T60), with the results of Dr Coroneos's review, he opined that the applicant was fit to undergo a graduated rehabilitation program "aimed at upgrading him back to his usual position as a part time PDO delivery". Dr Sowby believed that no further treatment and/or investigation was indicated apart from a further review on 1 November 1999.
The applicant rang Ms Angus, an occupational health nurse employed by the respondent the next day and advised he couldn't work that day (T61) and was concerned that if he resumed postal delivery officer ("PDO") duties he would be in constant pain.
The applicant was reviewed on 1 November 1999 (notes attached to Dr Sowby's statement dated 2 July 2001(Exhibit 5)). In his report dated 2 November 1999 (T64), Dr Sowby advised that the applicant told him he had not attended work to commence a rehabilitation program because of ongoing neck and left shoulder symptoms. The applicant also told Dr Sowby that he "works part-time to allow [the applicant] to renovate house" and that the applicant was searching the internet for information on brachial plexus injuries. Dr Sowby iterated his opinion of the previous review that the applicant was fit to return to work under a rehabilitation scheme and the cause of the applicant's reported symptoms remained unclear.
Dr Sowby reviewed the applicant on 17 April 2000. He reported in his report of the same date (Exhibit 1) that the applicant had undergone a rehabilitation program since he last saw the applicant in November 1999. The applicant was performing administrative duties although he still suffered from "ongoing pain over the posterior scapula, discomfort down his left arm and over his low neck region" (page 1, paragraph 3). Dr Sowby also reported that the applicant was undergoing pain management with Psychologist Ms Kerns and with Dr O'Sullivan, Anaesthetist and had been referred to Dr Boys, Specialist Orthopaedic Surgeon for an independent orthopaedic assessment. The applicant's physical examination indicated nothing abnormal. Dr Sowby prepared a statement dated 2 July 2001 (Exhibit 5).
Dr Boys examined the applicant on 19 April 2000 and in his report the same day (Exhibit 17) states that the applicant told him (page 2, paragraph 1) of:
"ongoing pain in the region of the left scapula and a sensation of discomfort and stiffness of the neck". He attended various Australia Post doctors and in the later part of 1998, noted paresthesia over the left posterior shoulder. He relates discomfort also on that occasion in the region of the arm."
Mr Du Plessis also relates a depressive illness at or about this time"

At paragraphs 7 and 8 Dr Boys reported:
"[The applicant] describes basal neck discomfort. This symptom is low grade and intermittent.
A more constant ache is described over the posterior aspect of the left shoulder and scapula. Intermittent discomfort is noted over the medial aspect of the left inner arm and forearm. Paresthesia is described involving the middle, ring and small fingers of the left hand. Grip strength is preserved."

The applicant did not report any active hobbies and advised that he no longer surfs.
The results of Dr Boy's physical examination were essentially normal as was examination of the applicant's x-rays and MRI of 23 December 1999 apart from noting the deformity of the applicant's healed left clavicle. Dr Boys opined (page 4, paragraph 2 – "Opinion") that the applicant's current symptoms were:
"as a consequence of a soft tissue injury to the left shoulder region (and associated clavicular fracture) sustained on 14.01.1998."
This man's clavicular fracture has united with deformity of the bone. [The applicant] does relate symptoms in the left upper limb suggestive of a degree of associated brachial plexus irritation from time to time."

In his supplementary statement (dated 30 August 2000) Dr Boys commented in answer to the question "Could a drunken episode on a go-kart be responsible for the symptoms [the applicant] suffered up to your examination?" That (question 3):
"If one is to assume that there were no ongoing symptoms in the period following recovery from injury sustained on 14.01.1998 and recurrence of symptoms after the go-kart incident, this would be a reasonable assumption.

Dr Boys also opined that the applicant's symptoms were strain symptoms and as such would be (answer to question 2):
"intermittent or aggravated by certain activities involving strenuous or repetitious use of the upper limb".

In addition, Dr Boys commented (page 2, question 4) that the applicant's symptoms could be related to a shoulder strain giving rise to ongoing symptomatology resulting from:
"activities including painting the ceiling of his house, building a brick fence at his home, plastering walls of his house and other general home renovations"

The Applicant's Arguments

It was argued that the applicant's symptoms which caused him to seek medical advice and take time off work in the second half of 1999 emanated from the applicant's accident on 14 January 1998. It was contended that from the time of the original injury, the applicant experienced ongoing pain and discomfort in the left side of his neck and the left shoulder area. This however, did not prevent the applicant returning to work. The applicant had been told by Dr Sowby that he could expect pain for a while because it could take up to two years to heal. The applicant found that repetitive stretching movements of his left arm, such as when he delivers mail, exacerbates his symptoms.
It was submitted that the applicant returned to full employment as a motorcycle postal delivery officer on about the 21 April 1998. The applicant gave evidence that although he experienced some symptoms associated with his collar bone and neck and shoulder symptoms, he was able to manage full duties. In late 1998 or early 1999 the applicant became concerned that his symptoms were not resolving but appeared to be worse after using his left arm.
The applicant stated that as a painter he only ever suffered a pulled muscle in his lower back and suffered no other serious injury. He told the Tribunal that he attended his general practitioner on 8 September, 20 October and 23 October 1998 with dermatitis and again on 4 February 1999 with the same problem.
In his undated statement, the applicant contends (Exhibit A page 7, paragraph 5):
"I have not taken very much time off work on account of my injury. I was originally off work for less than a month and then on light duties until about July, 1998. My next significant period off work was in the second half of 1999 and I have been back at work with very little time off since about December, 1999.

Later (page 8, paragraph 4, last line), the applicant states:
"It is a myth to say that I was rarely at work."

Both in his statement (page 8, paragraph 5) and in his oral evidence, the applicant stated that he had not denied initially to Dr Coroneos that he had been doing any painting work. In addition, he stated (page 9, paragraph 1) that as an experienced painter, he always wore a shirt when painting and he doubted that he would have sprayed paint over himself. In cross-examination, the applicant denied removing his shirt for the examination by Dr Coroneos.
The applicant argued that he was capable of handling simple or light tasks like plastering walls and carpentry (Exhibit A page 9 paragraph 2), painting his laundry and office under his house, painting the hallway and part of his kitchen (Exhibit A page 8 paragraph 4). He accomplished these tasks by taking breaks frequently and only doing small areas at a time. In his oral evidence, the applicant told the Tribunal that prior to painting the kitchen ceiling, he first scraped the old paint off. In addition, he told the Tribunal that he added gyprock walls to the laundry and plastered those and hired a chain saw to chop some trees out. This latter task he shared with a friend.
The applicant was also able to assist a friend of his to remove a wooden fence at the applicant's property and replace it with a brick fence 10 metres long and about 1.8 metres high (Exhibit A page 8, paragraph 2). This task, the applicant stated, was completed in June 1999.
The applicant stated that he deliberately painted a ceiling on the week-end before a MRI test because a test on the previous Friday had indicated there was no abnormality found. The applicant stated that painting the ceiling heightened his pain.
The applicant did not deny that he had painted the bedroom, lounge/dining and bathroom ceilings in the home of Mrs Beare. However, the applicant stated that he told Mrs Beare that he had a painful shoulder. The applicant denied that he had a second job.
In his statement (page 9 paragraph 4) and in oral evidence, the applicant also stated that he had an accident falling off his son's billy-kart in 1998 prior to purchasing the family's home. He had returned from a night out and ridden the billy-kart on a bitumen road. The applicant contended that he had taken a sharp turn to the left and fallen on his right shoulder. The accident caused him a minor injury and he took one day off work.
The applicant stated that he first suffered from dermatitis in about May of 1998. By avoiding rubber this condition cleared up in a couple of months. The applicant contended that he met with hostility from fellow workers over this.
The applicant stated in his oral evidence that during a three week vacation in August 1999 he had continued his assigned home exercise program but later in cross-examination, admitted that he may not have done all of his exercises.
In answer to the allegation made by a fellow worker (Mr Bowen) that the applicant had incorrectly filled in a time-sheet the applicant argued that on occasions he would not take a lunch break as required. He believed that, as he had been told, he could add that time to his finish time. The applicant stated that he only did this on one occasion and ceased when advised that it was not the correct procedure.
It was submitted that the medical reports of Dr Cardell (T59, page 2), Dr Morris, Dr Nutting and Dr Boys support this. Dr Cardell was quoted as stating:
"I feel that [the applicant] had a bad fracture which healed slowly and with malalignment, This has put strain on the muscles supporting the shoulder which now give chronic neck/shoulder muscle pain and fatigue.
I believe with physiotherapy [the applicant] should be able to right this. The situation is complicated by some depression due to ongoing pain and workplace pressure."

It was also submitted that Dr Morris in his oral evidence and Dr Nutting in his reports attributed the applicant's current symptoms to his original injury of January 1998. Further, Dr Nutting's evidence of C5/6 root irritation was relied on as was Dr Boys' reference to strain symptoms associated with muscle contractions in the area to indicate a pathology existed to account for the applicant's symptoms.
The evidence of these medical specialists, together with the evidence of Ms Dalzell, who expressed the opinion of C5/6/7 level disc involvement, was argued to counter Dr Coroneos' s opinion as the only dissenting opinion.
It was submitted that the applicant's wife was not cross-examined on her evidence and so her evidence should be accepted by the Tribunal. Mrs Du Plessis stated (Exhibit H, page 2, paragraph 11) that:
"[The applicant] continued to complain to me [of] neck and shoulder pain but was able to manage at work. I noticed that he was not able to sleep on his left side and that he would groan during the night…"
"[The applicant] did complain to me of ongoing neck an shoulder pain and stiffness and there were occasional episodes of more severe pain when [the applicant] would need to take some time off work."
Mrs Du Plessis also stated (Exhibit H, page 2, paragraph 12):
"[The applicant] was back on motorcycle postal deliver from about May, 1998. In early 1999, his neck and shoulders appeared to get worse. He complained to me that his repeated use of his left arm at work aggravated his shoulder symptom."
It was also contended that Mr Jeanneret corroborated the applicant's evidence by telling this Tribunal that the applicant complained to him of pain in his shoulder after the applicant had returned to motorbike postal delivery.
Finally, it was submitted for the applicant that the Tribunal should apply the principles discussed in March v Stramare (1991) CLR 506 and Fitzgerald v Penn (1954) 91 CLR 268 at 277.
The Respondent's Arguments
It was accepted by the respondent that the applicant suffered an original injury arising out of a motorcycle accident at work on 14 January 1998. However, it was contended for the respondent that as at 30 April 1999, the applicant was not suffering any symptoms referable to the January 1998 accident.
There was no medical explanation for the symptoms but if present, could possibly be associated with the applicant's activities such as house painting and renovating or perhaps related the applicant's fall from his son's go-kart. It was also submitted that these symptoms may be associated with degeneration or activities associated with the applicant's work as a painter for 13 years prior to his working for the respondent.
The respondent contended that the applicant has little or no credibility. The applicant exaggerated and was inconsistent in his evidence and gave different versions of symptoms to different doctors. The applicant variously described scapula pain, shoulder pain (with and without neck pain), neck stiffness and back pain all said to relate to his original injury. It was submitted that he withheld information about his extra-curricular activities, such as ceiling painting and his go-kart accident, from his doctors, and his physiotherapist. To say this was done out of naivety or because he was not directly asked about these is improbable when the applicant was seeking consultations for neck pain.
Further to the issue of credit, at the hearing, the applicant insisted that he had fallen from a "billy-kart" as opposed to a "go-kart", presumably to avoid the inference that the vehicle had a motor. Yet, both Mr Jeanneret, who otherwise gave unbiased evidence for the applicant and Dr Sowby gave evidence that the applicant had advised them that the cart was motorised. The issue of whether the cart was motorised or not is of no importance, rather it is of importance that the applicant changed his story in an attempt to obtain a favourable result.
It was submitted for the respondent that the statement of Mrs Du Plessis should be given little weight as it was tendered to "patch up the applicant's case after his appalling performance in the witness box on the first day of the hearing." In addition, although Mrs Du Plessis supports her husband's case by confirming that the applicant made complaints about his shoulder pain, crucially she did not specify the dates or period of these complaints.
It was contended that the postal workers who gave evidence were candid, credible and genuine and that where their evidence conflicted with that of the applicant, the evidence of these witnesses should be preferred over that of the applicant's. Some (if not all) said things which were favourable to the applicant as well as detrimental. The applicant's fellow workers who gave evidence for the respondent, apart from Mrs Beare, indicated that the applicant did not appear to be as incapacitated as he asserted and appeared to spend most of his working time either on light duties or on sick leave. This required that other workers would have to take-over the applicant's duties.
Mr Hoffman, Claims Manager, prepared a file note dated 26 November 1999 (T68). In that report, Mr Hoffman summarised Dr Sowby's file and consultation card notes. He referred to Dr Sowby's opinion that the applicant was fit for normal duties in April (1998). He also noted that the applicant attended the MSU in August 1998 with low back strain and again in February 1999 with back symptoms. In September 1998 he reported to the MSU with dermatitis.
Mr Bowen, Delivery Centre Manager, confirmed his written statement in his oral evidence that he had interviewed and formally warned the applicant over the matter of incorrect completion of time sheets.
Mr Thomas indicated both orally and in his statement that the applicant had indicated that he had a second job to go to.
In his statement and in his oral evidence, Mr Lowes related that the applicant had told him, early in 1998, that he had had an accident whilst riding a go-kart and that the accident had aggravated the applicant's work related injury.
The respondent submitted that sometime in 1999 the applicant received remuneration from Ms Beare for painting the ceilings in her home although denying having a second job. Ms Beare gave oral evidence as well as provided a written statement dated 1 July 2001 (Exhibit 4).
Mrs Beare stated that she first began working at the same centre as the applicant in August 1998. She had not heard of the applicant' s original injury. Mrs Beare stated that after mentioning at work that she was seeking a painter who wasn't too expensive, the applicant told her that he was a painter by trade, had all the equipment and would do the painting she required. She stated that the applicant told her that he was also busy renovating and painting his own house. The painting of Mrs Beare's ceilings was done sometime in the period March to June 1999 over a period of about three afternoons after the applicant had finished work for the respondent
In her oral evidence, Mrs Beare told the Tribunal that before painting, the applicant assisted Mrs Beare to move large items of furniture and put down drop sheets. Ms Beare prepared the ceilings by washing them first. The applicant applied an undercoat and a top-coat with a long handled brush and when he had finished, he removed the drop sheet. Ms Beare and her husband moved the furniture into position after the painting had been completed. Ms Beare was not aware at that time that the applicant was suffering problems with his shoulders and neck and stated (Exhibit 4, page 2, paragraphs 16 and 17):
"I sometimes sat and chatted with [the applicant] while he did the painting. I never saw him flinch from pain and he moved very freely. He whipped around the rooms."
"[The applicant] did not appear to me to be in the least bit incapacitated.'
Mrs Beare told the Tribunal (as stated in her written statement – page 2, paragraph 12) that the applicant did not mention having a sore neck or shoulders during the period it took to paint her bedroom, hallway, lounge and dining room ceilings. In her written statement, Mrs Beare stated (page 2, paragraph 18) the applicant:
"…mentioned to me in passing that he mucked around on go carts with his kids."
Mr Jeanneret provided in his statement (exhibit 7) that he worked at the Richlands Delivery Centre with the applicant from mid 1997 to early 2000. He was aware that the applicant had suffered a broken collar bone in a motor cycle accident and stated that the applicant would tell him that he was experiencing difficulties with his shoulder from time to time particularly when the applicant did his mail deliveries on the motorbike.
In his oral evidence, Mr Jeanneret re-stated that the applicant had related to him that after installing the motor in a go-kart at 3.00am one morning, the applicant took the go-kart for a ride around a paddock. The applicant had forgotten that the brakes had not yet been installed and suffered an injury to his right shoulder when he rolled the go-cart. Mr Jeanneret remembered that this was a time when the applicant was on light duties and he stated that he was angry that the applicant "would engage in such dangerous practices while receiving compensation for a work related injury". The witness also recalled that the applicant had told him that he was under the influence of alcohol at the time.

It was argued that the applicant is not suffering from his original injury, or from a condition brought about by the accident. This was supported by the fact that all of the medical experts agreed that there would have been pain of the type now being complained of throughout the period from the time of the accident in January 1998 onwards if the symptoms had been related to an injury caused by that accident. According to these medical experts, it did not make sense that the applicant's pain increased or accelerated in 1999, altered and varied in degree. The applicant's pain also varied in type.
The applicant went back to normal duties, painted Mrs Beare's house, and carried out renovation work on his own home in 1998 and 1999. After 1999, he presented as a person who cannot work at a desk for longer than 60 minutes without taking a break.
In addition, the medical evidence tendered by the applicant was based on incomplete information. The applicant had not provided the reports of other examining doctors, including the 1998 reports, and had not told them about his painting and renovating activities or his go-kart accident. For these reasons, it was submitted, the medical evidence of the respondent should be preferred, that is that the applicant was not and is not suffering from his original injury.
Dr Morris, Dr Nutting and Dr Coroneous have not identified evidence of physical or neurological damage to explain the symptoms the applicant claims to be suffering.
It was also submitted for the respondent that "[t]he contention that the applicant, by repetitively putting the letters in letter boxes, has aggravated his original injury, is fatuous and unsubstantiated".
In support of this contention, it was suggested for the respondent that a man who takes a day off work because he grazed his shoulder in a go-kart accident, that is the applicant, would not have suffered the pain he said he was suffering in 1999 without taking sick leave for it. The applicant was seeing doctors, including Australia Post doctors and his GP, from April 1998 through to March 1999 and he didn't mention of a problem with his shoulder, scapula, neck or back. The applicant told Ms McLaren on two occasions that "he was not having any problems at all" and he told Dr Sowby in that period that he was not having any significant problems.
Despite Ms McLaren inviting the applicant to seek reopening of his case if he had any problems with his shoulder, he did not do this until June 1999.
For these reason, the respondent's case was that the applicant was not a person who despite suffering, continued on working in the hope that things would improve and finally when they did not, decided to do something about it. It was the case that the applicant ceased to suffer any pain because he did not take time off or seek to reopen his file. The fact that the applicant undertook arduous activities such as painting ceilings was said to be consistent with this theory that the applicant was not suffering pain at the time.
This matter was argued to differ on the facts from the Federal Court decision in Australian Postal Corporation v Nadge in that in this matter, the applicant ceased to suffer symptoms of the original injury, and the activities undertaken by the applicant (home renovations, ceiling painting, and riding go carts) did not constitute "the ordinary stresses and strains of living and working".

Considerations

In this matter, the applicant will succeed if it is shown that the applicant's current symptoms are a continuation of his original injury or that his original injury had been aggravated by his employment with the respondent.
With regard to the applicant's credit, we note that the applicant had approximately 94 days off on recorded sick leave for the period 23 February 1998 to 30 December 1999 for various reasons. We also note that the applicant may have taken leave which was not officially recorded (for example see T22). The applicant also took 30 working days leave and approximately seven days other leave in that period. In addition, the applicant was on "light duties" for a period of 29 days until 8 April 1998 and again from about 23 July 1999 until 18 October 1999. The applicant did not attend work between 16 October 1999 and 30 December 1999.
We make this comment merely to note that these absences could be understood to have led to a perception by the applicant's fellow workers that the applicant was not often at work. As these fellow postal workers would then have to complete the tasks normally the responsibility of the applicant, it is also understood that the emotions aroused by this perception may have an effect on the evidence provided by these fellow workers. We also note that the applicant may not have been aware of the actual amount of time he was absent from work or on light duties in that period when he made the statement "It is a myth to say that I was rarely at work."
The evidence of the applicant's fellow postal workers, barring Mrs Beare, indicate dissatisfaction with the fact that other workers would have to perform the duties not done by the applicant when the applicant was absent from work or on light duties. We understand that these postal workers would not always be privy to the reasons for the applicant's absences. However, we can also understand that, given the rather unusually large number of days the applicant's duties would need to be performed by his fellow workers, such dissatisfaction would lead to frustration and even resentment. We accept that the evidence presented by those postal workers who did give evidence may have been tinged with these emotions but nevertheless find that each witness appeared genuine in his or her desire to inform the Tribunal as to the facts as they perceived them at the time.
We are not satisfied that the applicant was undertaking a second job. It is accepted that the applicant did undertake some painting work for Mrs Beare for remuneration, but can find no evidence to suggest that this was part of a business, or work of this or any other kind, apart from his employment with Australia Post, was an ongoing source of income for the applicant.
The Tribunal was advised of an allegation that the applicant deliberately completed a time sheet incorrectly to gain a financial benefit. We consider that the fact that the applicant had been in his position for over a year and therefore familiar with correct procedures, and the fact that this was a one-off incident, must be weighed against each other in considering the validity of this allegation. On balance, we can not be satisfied that the applicant deliberately sought to gain financial benefit by incorrectly completing his time sheet on the one occasion for which he was formally warned.
However, although we note that the applicant freely admitted to being involved in house renovations and painting, we are not satisfied that the applicant was at all times accurate, frank and forthcoming in all of his evidence.
We note that the applicant disagreed with Dr Coroneos' evidence in that he denied that the doctor could have found paint flecks on the applicant's upper body because the applicant contended he always wore a shirt when he painted and did not remove his shirt during his consultation with Dr Coroneos. Dr Coroneos' evidence is preferred in this matter as he identified that the applicant possessed a café au lait mark on his upper arm, and, as Dr Coroneos pointed out, he would not have been able to carry out an effective medical examination if the applicant's upper body remained clothed. For this reason, we are satisfied that Dr Coroneos was initially answered in the negative when he first questioned the applicant regarding the applicant undertaking carpentry and renovation work.
The applicant took recreation leave of approximately three weeks in August 1999. Although initially stating to the Tribunal that he maintained his exercise regime during this period, the applicant changed his evidence after being questioned further on this to admitting he did only some of the prescribed exercises. This evidence conflicts with that of Ms Dalzell who told the Tribunal that the applicant almost delighted in telling her that he had not done any of his prescribed exercises. We accept Ms Dalzell's evidence as she supports her statement by physical evidence that at this time she noted a weakening of the applicant's neck muscles. In addition, Dr Goode noted a mild reduction in the range of movement of the applicant's cervical spine at the same time.
The applicant did not offer a full explanation of the circumstances surrounding his billy-kart accident in March 1998. From the applicant's oral evidence, the Tribunal understands that the applicant had been to a social function, and arriving home late on the Sunday night or in the early hours of the Monday morning, attempted to ride the cart but sustained an injury in the process. We understand that the applicant was rostered to start work at 3.00am that Monday morning. Although no conclusion can be drawn that the applicant was too tired, or too drunk, or in fact too sore to attend work that morning, we note that the applicant did not offer a full and clear explanation of his accident to his supervisor or to the Tribunal.
In addition, the applicant denied aggravating his collarbone injury in this incident, in contradiction to the opinion of Dr Nutting who believed that such a fall would have repercussions for the spine in general and the opposite side of the body. However, although we favour the specialist's opinion in this, there is no contemporary evidence to suggest actual aggravation and it is not considered further at this time.
In his evidence the applicant initially stated quite definitely that only his friend had used the chain saw when he and his friend were cutting trees on the applicant's property. However, later in his evidence the applicant stated that he had used the chain saw himself during this activity.
We are satisfied that the applicant was not consistent in the reporting of his symptoms to each doctor he saw. The Tribunal notes that the medical witnesses in this matter have had to rely, in their diagnoses, to some extent on the symptoms reported by the applicant. We also note that the reported symptoms have been shown to conflict with the evidence of thorough medical examinations.
On 30 July 1999, during his appointment with Dr Nutting, the applicant first complained of dysaesthesia and pain on rotation and extentions of his head and neck to the left. Dr Nutting gave evidence that he was surprised by Dr Morris's report of 13 May 1999 indicating that the applicant had full range of movement of his neck and left shoulder without pain on rotation. We have noted that the applicant advised Dr Goode on 9 July 1999, that he was building his brick fence at home. At his appointment of 19 July 1999, Dr Goode also found that the applicant had a full range of movement without associated pain.
At his appointment with Dr Nutting (30 July 1999), the applicant mentioned feeling pain on the left side of his neck when looking to the right on or about the 16 July 1999. However, this was not mentioned to Dr Goode at the applicant's reviews with that doctor on 19 and on 21 July 1999. Dr Craddock reported that on 21 July 1999,the applicant had a "…reduced range of movement of the neck." On 17 April 2000, Dr Sowby reported that the applicant had a full range of movement of neck, shoulders and thoracic spine.
The applicant did not advise Ms Dalzell that he was painting ceilings at the time he completed the cervical spine disability questionnaire (dated 30 September 1999 (Exhibit 2)). In that questionnaire the applicant indicated that he had constant neck pain, had difficulty driving because of neck pain and was unable to look behind him when driving because of neck pain. The applicant also indicated that he avoided heavy jobs because of his neck. It is clear that Ms Dalzell was provided misleading if not false information in that questionnaire which would affect her understanding of the applicant's condition.
On 15 March 2000, the applicant, Dr Nutting saw the applicant and noted that the applicant only suffered the symptoms complained of, during activity. However, on 23 April 1999, the applicant had told Dr Morris that the pain was not associated with any activity of the left shoulder or neck but was worse after he used the left shoulder a lot.
At his consultation with Dr Boys on 19 April 2000, the applicant apparently did not mention any of his home renovations, go-kart riding or bike riding and for the first time stated that he had given up surfing. The information the applicant told Dr Boys was misleading in that he relates having a depressive illness and the information he provided seemed to indicate that he attended the Australia Post doctors for ongoing pain rather than for review of his original injury. The depressive illness was based on the applicant's information to the Medihelp doctors and was not supported by observations of Dr Sowby. Dr Boys appears to rethink his opinion in his supplementary letter of 30 August 2000, and for this reason and the fact that he was not provided with full and complete details of the applicant's history, we give little weight to Dr Boys initial report of the 19 April 2000.
From the reports of the applicant's general practitioners – Dr Cardell and Dr Craddock, it is clear that the applicant did not provide full and frank information to these general practitioners. In particular, the Tribunal notes that the applicant advised that after the original injury, the applicant was able "to remain full-time on light duties at work with the odd day off". This clearly was not the case.
In view of these facts, we prefer to accept the evidence of other witness where there is conflict with that of the applicant's except where the applicant's evidence is corroborated in full.
In assessing the ongoing nature of the applicant's symptoms, we are not assisted greatly in this matter by the chronologies prepared by Drs Cardell and Craddock due to the lack of detail provided. For example, with reference to the applicant's complaint of low back pain associated with bike riding (4 February 1999) there were no details about the applicant's bike riding activities (distances and duration of rides, whether the bike was motorised or not, what type of terrain was covered). In addition, several presentations were reported in March, April and May 1999 but no details of the reasons for these was provided.
The reference to the applicant's reporting pain in his left shoulder aggravated by his work and "persistent pain in [the applicant's] left shoulder" (23 May 1999) is not elaborated by any reference to when the pain started, what was meant by "persistent" or what activity aggravated the pain. In addition, the report that "it was noted that pain may be associated with brachial plexus nerve injury" (25 October 1999) but this comment was not accompanied by any indication of who provided this diagnosis and on what grounds.
We are satisfied that the lower back pain the applicant suffered in July 1998 was of temporary nature and not associated with the original injury. Back problems were not reported until the week of 27 July 1998 and was plausibly explained by the applicant to Dr Sowby, who examined the applicant in relation to this injury, and Ms McLaren, to be related to righting a fallen bike.
We note that the applicant advised Dr Cardell on 24 July 1998 that back pain had been present since the original injury. However, this is not consistent with the information the applicant provided to Dr Sowby at the time or to other specialists, including the orthopaedic specialists Dr Nutting and Dr Morris, when the applicant related his general symptoms.
The applicant presented to Dr Sowby with the same complaint on 31 July 1998 but did not state that this pain had been present since the original injury. Dr Sowby diagnosed this complaint to be of a temporary nature only and thereafter there is no mention of back problems to Dr Sowby although the applicant complained to Medihelp on 4 February 1999 about low back pain aggravated by motorbike riding.
The Tribunal does not denigrate any diagnosis or opinion of Dr Cardell. However, the Tribunal notes that the general practitioners at the Medihelp centre could only report on what the applicant told them. With regard to his back pain, the information supplied by the applicant is inconsistent with the information supplied to Dr Sowby, Dr Morris and Dr Nutting. As there is no record of the applicant advising his general practitioner of his hurting his back when righting his motorbike a couple of days earlier, we have concluded that Dr Cardell was not provided with all of the necessary or the correct information with which to make an accurate comment and her comment is given little weight on this issue.
We do not dispute that the applicant suffered back pain in July 1998. However, having noted the applicant's inconsistency, in these circumstances, we prefer a conclusion drawn from Dr Sowby's report that the back pain was of a temporary nature only. In addition, from the fact that this symptom was not advised to any of the specialist medical officers seen by the applicant, we have concluded that the pain was not associated with the original injury.
It was argued for the applicant that the pain of the original injury has never dissipated. The applicant stated in his undated written statement that when he returned to work after the original injury, he "was still suffering very severe symptoms" and when he commenced to drive himself to work (from about mid March – T22) he experienced "severe pain in [his] collar bone, neck and left shoulder area". The applicant also stated that the symptoms were much the same until about May or June 1998 (Exhibit A, page 4, paragraph 4). The applicant also stated (Exhibit A, page 5, paragraph 2) that:
In the second half of 1999, my supervisors put me on restricted duties on the recommendation of Australia Post doctors. At that time I was continuing to experience ongoing neck and shoulder problems…"
It was contended that the applicant's wife's (Mrs Du Plessis') statement and the evidence of Mr Jeanneret corroborated the applicant's evidence and supported this contention.
We accept that the applicant would and did suffer pain in the neck and shoulder region immediately after sustaining the original injury on 14 January 1998. The evidence of Dr Sowby supports the contention that the pain associated would persist for many months after the event.
We also accept that the applicant did complain to both his wife, Mrs Du Plessis, and Mr Jeanneret about shoulder pain. However, it is noted that a complaint of pain is not necessarily an indication that pain exists.
Mr Jeanneret stated in his evidence that these complaints were made to him when the applicant was on light duties. In addition, Mr Jeanneret stated (Exhibit 7, page 2, paragraph 10):
"[The applicant] often told me he experienced shoulder pain when he did his mail deliveries on the motorbike."
The Tribunal notes that the applicant was on light duties both immediately after the original injury and in the later part of 1999. In addition, the applicant recommenced to deliver mail in early April 1998 (T29 - T31) and was also delivering mail in July 1999 when he was attending the Australia Post doctors with complaints regarding his left shoulder and neck.
Mr Jeanneret has not specified which period his evidence refers to and the Tribunal cannot conclude from his evidence that the applicant's complaints were made at any particular time in the period from his return to work in February 1998 to early 2000 when Mr Jeanneret ceased to work at the same centre as the applicant.
Similarly, the Tribunal cannot draw any temporal conclusions from the statement of Mrs Du Plessis. Mrs Du Plessis does not specify dates in her statement (Exhibit H) and although she refers to the applicant taking time off for severe pain in his shoulder, the applicant's sick leave records show no sick leave associated with this complaint from February 1998 until 6 July 1999.

Although the Tribunal accepts that Mr Jeanneret is accurate in his evidence, and Mrs Du Plessis has endeavoured to assist the Tribunal, the Tribunal is not satisfied that this evidence supports the applicant's contentions of ongoing pain since the original injury.
The applicant reported no shoulder or neck problems to Dr Sowby after the 1 April 1998 review until 16 April 1999. At the review in April 1998, Dr Sowby reported "minimal tenderness over the fracture site with close to normal ranges of movement". Also this time, the applicant advised Ms McLaren that he was having no problems on full delivery (T31) and again on 31 August 1998 the applicant advised Ms McLaren that he was "not having any problems at all".
The first mention by the applicant of continuous pain since the injury associated with the applicant's left shoulder and neck in medical records is reported in Dr Teh's letter to Medihelp dated 31 March 1999 where "tingling, burning and shooting pain" is referred to. The next is in Dr Morris' report of 23 April 1999. We note that the presence of ongoing pain "since the accident" was then reported on 8 July 1999 to Dr Goode by the applicant and finally to Dr Boys on 19 April 2000.
On this evidence it would appear that some or all of the symptoms the applicant now complains of – that is variously left para-cervical pain, paraesthesia, neck pain, shoulder pain, and scapula pain only appeared in early to mid 1999. In addition, despite the applicant advising Dr Teh, Dr Morris and later Dr Goode and Dr Boys that his symptoms have been present since the injury, we note that the applicant first mentioned that his symptoms have been continuous some seven months after the closure of the applicant's rehabilitation file. This is despite the many opportunities the applicant has had to mention his pain to medical officers in that period.
From the evidence presented, we are satisfied that the applicant was not a person to refrain from seeking medical assistance or taking time off for recuperation from any ailment, whether it was for the "flu", "gastro", sore back, sore shoulder, dermatitis, a bruised shoulder or any other complaint. Therefore, the Tribunal accepts that the applicant began to experience some symptoms of pain in his left shoulder sometime in early March 1999 but not in the period from April 1998 up to that time. That is, we are satisfied that the applicant did not suffer continuing or ongoing pain associated with the original injury.
We accept that common sense must be applied to the facts of the case in determining the cause (March v Stamare ([1990-1991] 171 CLR 506 per Mason CJ at 515, Fitzgerald v Penn (1954) 91 CLR 268 at 277). In addition, as noted by His Honour Justice Lee in Australian Postal Corporation v Nadge (FC 940463 21/6/94): "It was obviously a question of fact whether another injury had intervened to break the chain of causation between the original injury and the subsequent incapacity".
No evidence was presented regarding how much of the work involved in the applicant's moving to his own home in June 1998 was carried out by him. There is undoubtedly much heavy work involved in such a move as well as repetitive work such as packing and unpacking. However, as this was not a matter considered relevant by the parties, the Tribunal makes no further comment regarding this issue.
The Tribunal is satisfied that the applicant carried out renovation and painting work using both arms and repetitive actions from the time of moving into his own home, that is from June 1998 until at least 7 October 1999 when the applicant was seen by Dr Coroneos. These renovations included painting of ceilings (through to October 1999), erecting walls (sometime in the period February to April 1999 – Exhibit 5), fitting and attaching a door, pulling down an existing wooden fence and replacing it with a brick fence (June/July 1999 – T39) and clearing trees using a chainsaw.
Although we accept that the applicant received assistance with some of these tasks, we are also satisfied on the applicant's own evidence that he was not merely a directing agent in any of these tasks but rather an active participant in all the activities mentioned.
The applicant told the Tribunal that he painted ceilings using a roller attached to a pole. The Tribunal is satisfied that as opined by Dr Nutting, this activity, particularly for someone who does not do this type of activity regularly, would cause neck and shoulder pain.
Neither Dr Sowby, Dr Goode, Dr Nutting Dr Coroneos, nor Dr Morris, all medical specialists, could specify a medical cause of the applicant's fluctuating symptoms.
On 30 July 1999 Dr Nutting reported seeing C5/6 pathology in the applicant's x-rays of 14 January 1998. Ms Dalzell concluded involvement of the discs at C5, 6 or 7 level. However, these opinions are contradicted by the MRI report of 1 October 1999. Indeed, even Dr Nutting changed his opinion after noting that no major pathology had been detected. He could offer no conclusive cause of the reported symptoms.
Dr Boys initially opined (Exhibit 17, page 4, paragraph 1) that the applicant was suffering pain "as a consequence of a soft tissue injury …sustained on 14.01.1998" as well as (page 4, paragraph 2) "a degree of associated brachial plexus irritation from time to time.". However, this conflicts with Dr Coroneos's reading of the applicant's MRI's which were performed especially to detect such a problem. In addition, when provided with further information regarding the applicant's extra-curricula activities, Dr Boys expresed the opinion that these activities could give rise to the applicant's ongoing symtomatology.
However, as already stated, we are unable to give much weight to Dr Boy's opinions as he has not been provided with all relevant details.
After returning from his holidays in August 1999, during which the Tribunal is satisfied from the evidence of the applicant and Ms Dalzell, the applicant did not undertake his prescribed exercises, Dr Goode reported a mild reduction in range of movement of the cervical spine generally. This had not been noted before by Dr Goode. Yet when the applicant saw Dr Goode on 15 September 1999, after completing two sessions of physiotherapy, the applicant reported a significant improvement in his condition and no paraesthesia.
We have noted that the applicant had seen his general practitioner on 12 March 1999 with pain and tingling in his left shoulder, and on 16 April 1999 he told Dr Sowby of problems with his shoulder and neck associated with stretching forward repetitively. At the later interview, the applicant mentioned that he was renovating his house and particularly in the last two months, he had been putting up plaster walls and experiencing symptoms.
As far as we are able to conclude from the evidence, the applicant was performing normal duties, including sorting and delivery from about 20 April 1998 to March 1999 and not complaining to any medical officer of symptoms in his shoulder, neck or scapula.
At the same time the applicant was involved in painting, carpentry and renovating his own home, that is from about March 1999, the applicant was complaining to doctors that he could not use his left arm without pain and could not attend work some days because of the residual pain.
If Mrs Beare's evidence is accepted, and we find no reason to disbelieve the witness, the applicant made no mention to Mrs Beare that he was suffering pain whilst painting her ceilings. While we can make no finding as to the actual date of this activity, we are aware that it took place after August 1998, that is after Mrs Beare met the applicant, and perhaps occurred in early in 1999. The painting activity was carried out over several hours and days after a full day of work using a roller on an extended handle or pole. The Tribunal understands that the applicant was required to look up for most of the duration of this activity. Dr Morris, Dr Nutting and Dr Coroneos have indicated that this activity would indeed cause or aggravate the symptoms the applicant says he suffers.
It may be a reasonable conclusion from this evidence that at the time the applicant was painting Mrs Beare's ceilings, he had not yet sustained the injury which he says now causes him pain. Such a contention of course cannot stand by itself and requires other corroborating evidence.
Also on Mrs Beare's evidence, the applicant was still riding his son's billy-kart at this time despite one reported fall the previous year.
Whilst complaining of pain so severe that it limited his ability to carry out even the most minor administrative tasks, such as inserting advertising material into envelopes for any more than 60 minutes, the applicant still undertook home renovations and home maintenance work in September and October 1999. The applicant was absent from work during for most of September and all of October 1999. Dr Coroneos found it incongruous that someone with the applicant's limitations could carry out the latter activities. We find it difficult to accept that work activities aggravated the applicant's symptoms at this time when he was not actually performing work for the respondent.
The applicant stated in his oral evidence that this painting caused him no neck pain during the activity despite requiring him to look up for the duration of the activity. We find this inconsistent with the applicant's evidence of continuous neck pain and pain on extention of the arm. Although no evidence was presented as to whether the applicant used both hands to paint the ceiling, it is a reasonable conclusion is that both hands would be required to control a long handled brush, such as the applicant stated he used in the procedure.
In Re Australian Postal Corporation v Nadge (FC 940463 21/6/94),the respondent had suffered a lower back injury in the course of his employment in 1988 for which he was paid compensation. As a result of his injury the respondent underwent surgery which left the respondent with residual but reduced pain.
The respondent undertook appropriate rehabilitation programs but did not resume playing squash for fear of placing his "low back at risk". In 1993, the respondent reported more severe pain after engaging in family activities at the beach including playing beach cricket (involving jumping, running and diving into the water for the ball).
The Federal Court supported this Tribunal's findings that the decision in that matter rested on two factors. The first was that the respondent's symptoms from the original injury persisted and were never fully resolved, and the second was that "the activities which the applicant had engaged in were not excessive but really constituted part of the normal day to day living activities of a normal family man of his age." (Page 5, paragraph 18).
In this matter, we are satisfied that on the applicant's own evidence in discussions with Ms McLaren (T29, T30, T31) and from the reports of Dr Sowby and Dr Goode that physical problems associated with the applicant's injury of 14 January 1998 had resolved by 30 April 1998. From that date, there was a significant gap between the applicant's recovery and return to work in April 1998 and the various and developing symptoms for which the applicant now claims compensation. Both Dr Nutting and Dr Morris opined that the for the applicant's present symptoms to be related to the original injury, the symptoms would have been present consistently and constantly from that time. On that basis alone we are satisfied that the symptoms from which the applicant claims to be suffering have no causative link to his injury of 14 January 1998.
In addition, we are not satisfied that the extra-curricular activities undertaken by the applicant such as renovation, painting, chain-sawing and go-kart riding did not cause the symptoms complained of. In deciding this, we have noted that the applicant's developing symptomatology is closely associated in time with the renovation and painting activities which would be both physically demanding and repetitive in nature, requiring lifting, stretching and raising of the arms. All of these are the activities the applicant complained of, when associated with his work for the respondent, incapacitated him. Yet the applicant persisted with these activities for at least 16 months. We gain support for our decision from Ms Dalzell's and Dr Nutting's comments that painters and labourers often suffer similar symptoms as related by the applicant. The applicant also continued to ride the go-kart despite one serious fall. Although no further fall was reported, Dr Nutting has opined that such a fall is likely to aggravate or cause symptoms.
We also note that a large proportion of the time during which the applicant was complaining of his symptoms, the applicant was undertaking only light duties in his employment or was absent from his workplace. From this information we cannot be satisfied that it was work-related activities which caused the applicant's symptoms.
Finally, we do not understand the applicant's non-workplace activities to be "the normal day to day living activities of a normal family man of his age". Indeed, the activities so described are perhaps better described as tradesmen's employment rather than week-end home-handyman tasks.
It is commendable that the applicant admitted to painting on a week-end prior to the second MRI so that the scan would not be normal. However, the Tribunal feels that this attitude and the evidence already related, supports the contention that the applicant's symptoms, if indeed they exist to the extent the applicant contends, are not related to the original injury. Rather, we have concluded that any symptoms the applicant states he now suffers relate to the applicant's extra curricular activities undertaken since February 1999 and could be manageable by appropriate exercises if the applicant would maintain the necessary regime.
Continuation of the applicant's renovation activities despite resulting pain, and an apparent failure to maintain a prescribed exercise regime, despite admitted improvement in symptoms, indicates an almost deliberate exacerbation of symptoms by the applicant not associated with the work environment and excessive in his circumstances. Indeed the applicant actively avoided any aggravation in the work environment by either taking sick leave, failing to attend work or seeking further light duties. This continued until the applicant was even reluctant to place advertising material into envelopes whilst still engaged in painting his kitchen ceiling and carrying out "some carpentry".
None of the specialist doctors who have seen the applicant have found him to be totally incapacitated for duties whether light or normal.
For these reasons, we are satisfied that the initial compensated work-related injury suffered by the applicant on 14 January 1998 is not a material contributing factor to the applicant's current medical condition and as such does not satisfy the definition of "disease" in section 4 of the Act.
For these reasons, the decision under review will be affirmed.
I certify that the 224 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe (Senior Member), Dr Kennedy and Mr IR Way (Members)
Signed:         .....................................................................................
  Associate
Date/s of Hearing  3 August 2001
Date of Decision  21 November 2001
For the Applicant  Mr Boulton, Counsel
For the Respondent                 Ms Downes, Counsel