Ho and Australian Postal Corporation (Compensation)

[2017] AATA 349

Ho and Australian Postal Corporation (Compensation) [2017] AATA 349 (21 March 2017)

Division:GENERAL DIVISION

File Number:           2015/2810

Re:Addy Ho

APPLICANT

AndAustralian Postal Corporation

RESPONDENT

DECISION

Tribunal:Miss E A Shanahan, Member

Date:21 March 2017

Place:Melbourne

The Tribunal sets aside the decision under review and remits the matter to the Respondent for reconsideration, with the direction that further medical investigation be undertaken in order to determine any liability under the Safety, Rehabilitation and Compensation Act 1988.

.....................................[sgd]...................................

Miss E A Shanahan, Member

WORKERS COMPENSATION – postal delivery officer – claim for compensation arising from or in the course of employment - no clear diagnosis of injury or disease - cervical spine or left shoulder injury or ailment or both –limited medical investigation – anatomical source of symptoms unclear – matter remitted to the Respondent for appropriate assessment

Legislation

Safety, Rehabilitation and Compensation Act 1988

Secondary Materials

Susan Sandring (ed), Gray’s Anatomy (Elsevier, 41^st ed, 2015)

REASONS FOR DECISION

Miss E A Shanahan, Member

21 March 2017

1. Mr Ho’s claim for compensation under s 14, s 16 and s 19 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act), arising from left sided neck pain of sudden onset on 16 December 2014, was lodged on 9 February 2015. An incident report of 7 January 2015 stated the complaint to be muscle pain left side of neck.  The claim was modified on 6 February 2015 as a result of the treating general practitioner Dr Mah changing the diagnosis to upper back pain and left rotator cuff tendon tear with left sub-acromial bursitis and left biceps tendonosis.  The claim was rejected on 25 March 2015. On review by a reconsideration delegate on 27 April 2015 the rejection was affirmed.

2. Mr Ho lodged an application for further review by the General Division of the Administrative Appeals Tribunal on 9 June 2015. The application was heard between 5 December 2016 and 6 December 2016.

3. At the hearing Mr Ho was represented by Mr Mark Carey of counsel, instructed by Maurice Blackburn Lawyers. The Australian Postal Corporation was represented by Mr Roy Seit of counsel, instructed by the Australian Postal Corporation’s litigation section. The Tribunal was provided with documents lodged by the respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T‑documents).  Both parties tendered further documentation a list of which is appended to this decision.  Mr Ho, Mr Thomas Kossman orthopaedic surgeon, Dr Kelvin Mah and Mr Gerard Powell orthopaedic surgeon gave evidence before the Tribunal.

   BACKGROUND TO THE APPLICATION

4. Mr Addy Ho commenced work with the Australian Postal Corporation (Australia Post) as a postal delivery officer in December 2010.  He underwent training at Box Hill and thereafter worked at Nunawading.  After six months he became a full time employee whose duties involved sorting and delivering mail.  Mr Ho was required to work overtime on a fairly regular basis due to staff shortages.  He commenced work at 6.00am and would spend approximately three hours sorting mail before commencing his delivery round. His round involved some 1200 delivery points, although he would not be required to stop at each of these points depending on the mail load.  

5. In his statement (Exhibit A1) Mr Ho described his duties in detail including the weights lifted, which he described as being about 10 kg of mail in each depot bag. The depot bags were transported to depot bins on his route so that he could reload his Honda CT110 motorcycle as he progressed through his four hours of mail delivery. 

6. In his statement and oral evidence, Mr Ho said he noted tightness and some pain in the left side of his neck while delivering mail on 16 December 2014.  In his statement he localised the pain to the area where his neck met his left shoulder. In his evidence before the Tribunal, however, he indicated by pointing that the pain was at the left side of his neck just below the occiput. He also stated that during the course of the day of 16 December 2014 he had developed a bad headache in the occipital region in addition to this pain. 

7. Mr Ho’s incident report form was not completed until 7 January 2015. Although Mr Ho says that on 16 December 2014 he had reported the pain to a supervisor, the form records his symptoms/diagnosis as strain of muscle on the left side of the neck. Mr Ho attributed this to an increase in overtime work, commencing with the Victorian state election and running through to the increased mail load associated with Christmas.  The other contributing factor he reported was a heavy helmet.

8. On the day of onset of his symptoms Mr Ho had been advised to rest.  He did, however, return to work in the pre-Christmas period. At some point, the neck pain also involved the back of his left shoulder in the region of the spine of the scapula, which Mr Ho indicated by pointing to it.  He was not able to see his general practitioner until 6 January 2015 when the diagnosis of neck muscle strain was made and physiotherapy commenced.  His general practitioner and Facility Nominated Doctor (FND), Dr Mah, recommended that Mr Ho use a lightweight motorcycle helmet. Australia Post provided a new helmet that weighs 1.8 kilograms as opposed to the usual helmet that weighs 2 kilograms.  Mr Ho’s hours of work were reduced and he performed sorting duties using his right hand, holding the mail in his left hand. 

9. Initially Dr Mah had reported that Mr Ho’s range of movement of his left shoulder was normal and that he was tender over his upper back.  As the symptoms persisted an ultrasound of Mr Ho’s left shoulder was performed, which revealed a 9 millimetre full thickness tear of the supraspinatus tendon, long head of biceps tendinopathy and sub-acromial bursitis with impingement.  Both Dr Mah and the treating physiotherapist, Ms Elena Poon, provided reports attributing these abnormal radiological findings regarding Mr Ho’s left shoulder to his repetitive movement in sorting and throwing mail.

10. As Mr Ho’s symptoms persisted, Dr Mah referred him to Mr Chris Pullen, orthopaedic surgeon, for an opinion regarding further treatment. However, Mr Ho did not make the appointment nor attend Mr Pullen for financial reasons as the claim for compensation had been denied on 25 March 2015 and this determination affirmed on 27 April 2015.  Following the decision Mr Ho had physiotherapy intermittently and while the need for magnetic resonance imaging (MRI) of his cervical spine had been advised by several doctors, this has not been pursued again on a cost basis.

11. Mr Ho continues to perform light duties involving the sorting of mail, but has not been able to resume motorbike deliveries beyond limited periods of up to two hours.

12. Mr Ho and his wife live with his parents. Mrs Ho has been undergone repeated in vitro fertilization treatment and they have succeeded in having a child who was born in September 2016. They have incurred considerable fees for this treatment.  For reasons that have not been fully explained Mr Ho, holidays or at least travels to Taiwan up to twice a year for a period of up to three weeks. 

13. Mr Ho is now able to ride a pushbike, play snooker and practices yoga on a regular basis.  He has difficulty doing things like mowing the lawns as he can’t empty the catcher.  He has given evidence that practicing driving at a golf range has been symptomatically beneficial in terms of his left sided neck and shoulder pain.

    EVIDENCE BEFORE THE TRIBUNAL

    Mr Ho

14. Mr Ho’s detailed description of his symptoms has been addressed under background to the application. 

15. In his oral evidence Mr Ho corrected any misapprehension, if it existed, that the onset of symptoms on 16 December 2014 had occurred while delivering mail.  He stated that it had, in fact occurred two hours into his sorting duties.  Having reported the symptoms of pain in the left side of his neck, he went home and leave record entries indicate that he had six hours off on that day. 

16. Mr Ho had difficulty remembering the exact details of 16 December 2014 but did not challenge the documentary evidence.  Similarly, he accepted the overtime records of Australia Post which showed that he did one to one and a half hours of overtime per week not three hours as he had previously stated, with the exception of the week before Christmas when he had done three hours of overtime. 

17. While giving evidence, Mr Ho was taken to his general practitioner Dr Jim Hu’s notes (Box Hill Family Clinic) relating to previous attendances for neck and back pain in May 2012 and October 2013.  Mr Ho had no recollection of these events.

18. While Mr Ho agreed that he suffered from migraine associated with photophobia, he was able to differentiate between his initial neck pain and headache of 16 December 2014 and his migraine attacks. 

19. Mr Ho agreed with Mr Carey’s description of his work routine, including in particular:

    ·the varying heights of letter boxes into which he placed mail;

    ·the obstacles that were frequently encountered in accessing letterboxes;

    ·the necessity to balance the bicycle he was riding with his right foot and to a lesser extent his left, with his right hand on the controls and his left hand;

    ·arm stretching to reach letterboxes, which frequently involved him leaning at an angle of between 0 and 90 degrees to the horizontal to reach the letterbox; and

    ·that some letterboxes often required a forceful pushing of mail, given that the apertures of some were smaller than the items being delivered.

    Mr Thomas Kossmann, orthopaedic and trauma surgeon

20. Mr Kossmann provided a detailed report dated 24 March 2016, which is some 15 months after the onset of Mr Ho’s symptoms.  Mr Kossmann had identified the area giving rise to Mr Ho’s left sided pain as being in the left suprascapular fossa.  He said the pain could be due to either referred pain from cervical spinal pathology or directly from the shoulder. Mr Kossman formed the opinion that in order to reach a definitive diagnosis, further x-rays and MRI of Mr Ho’s cervical spine as well as a MRI of his left shoulder was required. 

21. Mr Kossmann accepted the reported findings of the ultrasound of the left shoulder but considered ultrasound examinations as being unreliable in comparison to MRI.  On physical examination, Mr Kossmann detected a relatively minor decrease in flexion, abduction and extension of the left shoulder compared to the right.  This reduction was never more than 10 degrees.  Mr Ho continued to complain of pain in the supraspinatus area.  Mr Kossman opined that on the balance of probabilities criteria Mr Ho had sustained a repetitive strain injury to his left should and/or his cervical spine in the course of his employment and that his employment with Australia Post was a significant contributing factor. 

22. In his oral evidence Mr Kossmann confirmed the content of his report, agreed with Mr Powell in terms of both the interpretation of the signs, symptoms and investigations available. Mr Kossmann once more reiterated the need for an MRI of Mr Ho’s neck and shoulder.  Mr Kossmann provided evidence as to the site of pain associated with the various abnormalities detected on the ultrasound of Mr Ho’s left shoulder, these being the long head of biceps tendinopathy, sub-acromial bursitis and the supraspinatus tendon tear.  Mr Kossmann was of the opinion that it was above shoulder activity of the upper limbs that was causally associated with rotator cuff injuries.

    Dr Kelvin Mah, general practitioner

23. Dr Mah is the facility nominated doctor of Australia Post who saw Mr Ho on 8 January 2015 in relation to his left neck pain. Mr Ho told Dr Mah that he developed left upper back and neck pain before Christmas.  Mr Ho denied falling over or sustaining any injury during the delivery of mail.  Dr Mah found a normal range of movement of Mr Ho’s left shoulder and tenderness in his upper back.  Dr Mah referred Mr Ho for physiotherapy, prescribed anti‑inflammatory medication and restricted his duties to lifting a maximum weight of five kilograms and prohibited motorbike mail delivery. 

24. Dr Mah reviewed Mr Ho regularly, but as his progress was slow a shoulder ultrasound was ordered at the end of January 2015.  Dr Mah subsequently referred Mr Ho to an orthopaedic surgeon but continued to see him throughout March 2015, noting limited abduction of Mr Ho’s left shoulder with pain occurring beyond 90 degrees.  As Mr Ho’s claim for worker’s compensation was rejected, he did not proceed to see the orthopaedic surgeon and he ceased his physiotherapy. 

25. Dr Mah subsequently recommended that Mr Ho’s motorbike delivery activities be increased to two and a half hours, with restriction to the effect that Mr Ho was not allowed to lift more than three kilograms or conduct above shoulder work and was required to take 10 minute breaks on a regular basis.  Dr Mah was of the opinion that both sorting and throwing mail could contribute significantly to Mr Ho’s rotator cuff tear. 

26. In his oral evidence before the Tribunal, Dr Mah agreed that all of the pain Mr Ho experienced could be due to cervical spine pathology, but stated that this possibility had not crossed his mind at the time he was seeing him.

    Mr Gerard Powell, consultant orthopaedic surgeon

27. Mr Powell saw Mr Ho on 29 January 2016.  He obtained the above history and on examination found Mr Ho to exhibit tenderness over the supraspinatus fossa and generally in the area of the trapezius muscle, but not over the sub-acromial space.  On examination Mr Powell noted there was a full range of movement of the left shoulder with no evidence of impingement, but also noted that Mr Ho had reported soreness when raising his left arm above 70 degrees of abduction.  There was no evidence of sub-acromial impingement corresponding with this degree of abduction.  No abnormality was detected in the cervical spine.

28. Mr Powell was not convinced, despite the ultrasound findings, that Mr Ho had any significant rotator cuff pathology.  He was unable to confirm the diagnosis of a left shoulder injury and recommended an intra-articular injection of local anaesthetic and cortico-steroids to see if this provided symptomatic relief and, if effective, might assist in the resolution of the diagnosis.  He recommended that if relief followed the intra-articular injection an MRI scan of the shoulder should be performed, otherwise plain radiographs of the cervical spine would suffice. 

29. Mr Powell concluded that a reliable diagnosis had not been made at the time he saw Mr Ho.  He opined that the symptomatology reported by Mr Ho in January 2015 was more in keeping with referred pain from the neck arising most probably from degenerative spinal pathology.  Mr Powell considered it unusual for a 30 year old mail deliverer to develop a full thickness tear of the rotator cuff performing the duties as described by Mr Ho.  Mr Powell noted that Mr Ho was performing his pre-injury duties with modifications restricting his time doing motorcycle deliveries. Mr Powell recommended that Mr Ho gradually increase these hours of motorcycle work and resume his pre‑injury timetable. 

30. In his evidence before the Tribunal, Mr Powell reiterated his written opinion and advised that supraspinatus tendon tears were usually an acute event associated with the sudden onset of pain at the top of the shoulder and arm.  In his experience they occurred with overhead movement and particularly heavy lifting.  He did not regard ultrasound studies as being of a high degree of accuracy and made the comment that he always looked at the signature of the reporting radiologist before he read the report.  In the Tribunal’s experience this is not an unusual comment. 

31. Mr Powell was of the opinion that, on the balance of probabilities, Mr Ho’s pain originated in his cervical spine and para-cervical muscles and was referred to the shoulder region.  Mr Powell had not found any evidence of a rotator cuff tear in terms of physical signs and considered the supraspinatus tear demonstrated on ultrasound to be degenerative in nature and unrelated to Mr Ho’s employment. 

32. In cross-examination, Mr Powell agreed with Mr Carey there could have been considerable healing of any rotator cuff pathology between 16 December 2014 and January 2016 when he saw Mr Ho.  He also agreed that, as had been suggested by Mr Kossmann, the pain arising from shoulder rotator cuff pathology could be atypical in terms of its siting and further agreed with Mr Kossmann as to the need for further investigation.

    DOCUMENTARY EVIDENCE

    Sick Leave data

33. Mr Ho’s sick leave records were provided to the Tribunal. The records for dates before and after 16 December 2014 are very similar, except that in 2015 Mr Ho had several short periods absent from work of the order of one to two hours, which the Tribunal assumes related to medical appointments. 

    Overtime data

34. Overtime records provided to the Tribunal indicate that Mr Ho generally worked at the most one to one and a half hours of overtime per week, with the exception of the week before Christmas in 2014 when he was required to work three hours overtime. 

    Clinical records of Box Hill Family Clinic

35. These records confirm Mr Ho’s attendance on Dr Jim Yu for the treatment of acute episodes of back and neck pain in 2012 and 2013.  These appear to have been treated with analgesia or occasionally acupuncture and seem to have been short lived. 

    Miss Elena Poon, treating physiotherapist

36. Miss Poon provided reports wherein she identified Mr Ho’s pain as arising from his neck and radiating to his left shoulder in the trapezius muscle region. She considered his cervical spine to exhibit cervical facet joint stiffness and was of the opinion that his later complaint of left shoulder symptoms and the ultrasound findings indicated a direct relationship to work at Australia Post requiring repetitive use of his left arm sorting and delivering mail.  However, she did not exclude the possibility that his shoulder symptoms could all be referred pain from neck pathology. 

    RELEVANT LEGISLATION

37. The Safety, Rehabilitation and Compensation Act 1988 (SRC Act) provides for workers to be compensated for injuries sustained in the course of their employment. Section 14 of the SRC Act states:

    
    14  Compensation for injuries

    (1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

    (2)Compensation is not payable in respect of an injury that is intentionally self inflicted.

    (3)Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self inflicted, unless the injury results in death, or serious and permanent impairment.

38. Sections 5A and 5B of the SRC Act define respectively the terms injury and disease:

    5A  Definition of injury

    (1)In this Act:

    injury means:

    (a)     a disease suffered by an employee; or

    (b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or

    (c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;

    …

    5B  Definition of disease

    (1)In this Act:

    disease means:

    (a)     an ailment suffered by an employee; or

    (b)an aggravation of such an ailment;

    that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.

    …

39. Section 16 of the SRC Act provides for compensation in respect of medical expenses and s 16(1) states:

    16  Compensation in respect of medical expenses etc.

    (1)Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.

    Note:Compensation is not payable under this subsection in relation to certain defence related claims (see Division 2A of Part XI).

1. Also relevant is s 19 of the SRC Act, which provides for compensation for injury resulting incapacity, that incapacity resulting in reduced or total ability to work and states:

   19  Compensation for injuries resulting in incapacity

   (1)This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.

   (2)Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:  ...

   …

   SUBMISSIONS

2. Mr Carey accepted that there was dispute as to the source of Mr Ho’s symptomatology and thus a diagnosis. He further accepted as a corollary to that it was not possible to determine if Mr Ho had sustained an injury as defined in s 5A or suffered from an ailment as defined in s 5B of the SRC Act.

3. Mr Carey contended there is no rule or requirement that a definitive diagnosis must be made, only that there be an injury or ailment in a certain area.  He accepted that both Dr Mah and Mr Kossmann had recommended further investigation to assist in making the correct diagnosis in order to provide the appropriate treatment, but submitted that a neck injury remained merely a possibility or hypothesis at the best. 

4. In contrast, Mr Carey referred to genuine evidence on ultrasound of a rotator cuff injury, in particular a supraspinatus tendon tear, and Dr Mah, Mr Kossmann and Mr Powell had all noted that abduction of Mr Ho’s left shoulder beyond 70 degrees was reportedly painful.  Both Mr Kossmann and Mr Powell, were restricted in their opinions given the delay of 14 months or more from the initial report of an injury and their examination of Mr Ho.  While the only objective evidence available was limited it indicated left shoulder pathology.

5. Whether the left shoulder pathology was an injury or an ailment was considered to be a secondary consideration as in either case there was a significant contribution from work according to Dr Mah and Mr Kossmann.  While Mr Powell, in his report had concluded there was no work contribution of any degree to the pathology in Mr Ho’s left shoulder he did consider that raising the arm above 90 degrees or tilting it toward a letterbox might result in impingement although he had not demonstrated this finding on examination. 

6. While Mr Ho had been unable to recall previous episodes of neck and back pain there was no evidence that his headache and neck pain was part of his known migraine. It was contended that Mr Ho’s inability to recall in detail the events of any injury between 2012 and 2013, or on 16 December 2014 was not surprising given the delay and did not impact on Mr Ho’s credit to any degree. 

7. Mr Carey submitted that the Tribunal should set aside the decision with respect to s 14 liability for the left shoulder condition. In relation to s 16 and particularly s 19 there was a degree of incapacity for work in that Mr Ho was restricted to lighter duties and was only able to perform postal delivery rounds of two to two and a half hours in contrast to his pre-injury/ailment event when he performed for four hours of delivery services.

8. It was clear that further investigation was needed and on that basis Mr Carey submitted that the Tribunal should set aside the decision, find that the left shoulder injury had attracted a significant contribution from work activities resulting in incapacitation for the performance of his normal work duties. Mr Carey argued in the alternative that the Tribunal should remit the matter to the respondent for re-consideration and assessment. Mr Carey also sought an order under s 67(a) of the SRC Act, that the applicant’s costs be paid in full or part by the respondent.

9. For the respondent, Mr Seit identified Mr Ho’s claim as being entirely dependent on the results of the left shoulder ultrasound examination, despite the actual claim having been for neck pain.  Mr Seit contended that there was an unresolved dispute regarding the source of Mr Ho’s symptomatology and until this could be identified it was difficult or near impossible to decide causal factors relating to the symptomatology.

10. It was further contended that the experts were in agreement. Both Mr Powell and Mr Kossmann strongly advising that further investigation in the form of MRI examination of both the neck and the shoulder was required. 

11. Mr Seit challenged some of the applicant’s evidence as to its reliability, given that Mr Ho had denied prior symptoms in his neck and upper back although these were well documented in his general practitioner’s clinical notes. Mr Seit noted that Mr Ho had also given incorrect evidence regarding his hours of overtime in December and November 2014 with three hours of overtime per day only occurring in the week before Christmas 2014 and in relation to the Victorian State election were less than one or one and a half hours per day. 

12. Mr Seit contended that all of the medical evidence was that sorting procedures were not contributory factors in relation to a rotator cuff syndrome and that it was repetitive overhead activity that was accepted as contributory in the development of the condition.  No evidence had been provided as to what percentage of time any mail deliveries had been overhead in relation to a high mail box or one offset from the fence line, nor was there any corroborative evidence that the applicant frequently leaned to the left in order to place mail in the letterbox.

13. Mr Seit concluded that based on the current evidence the Tribunal should affirm the decision as there was no absolute evidence linking the ultrasound findings relating to the left shoulder with Mr Ho’s employment.

    TRIBUNAL’S DELIBERATIONS

14. Based on Mr Ho’s evidence before the Tribunal that he first noted neck pain while sorting mail on 16 December 2014 and that his evidence was not challenged despite the incident report being delayed until early January 2015, there is a temporal relationship between his work and the onset of symptoms.

15. Both s 5A and s 5B could be attracted by the injuries or in the alternative an aggravation of an ailment arising out of or in the course of employment. Both parties have based their submissions on Mr Ho’s claim that his employment has provided a significant contribution to his condition, be it an injury or an ailment.

16. These submissions are valid based on the limited objective evidence before the Tribunal.  In turn, the limited investigations have had a major impact on the expert opinion provided with both specialists being in total agreement as to two possible causes of Mr Ho’s pain. 

17. Mr Ho’s claim was for neck pain.  I accept that given the passage of time, his ability to recall the relevant events, in particular his symptoms of December 16, 2014, is poor.  He did, however, indicate to the Tribunal by pointing that his pain on at its onset, was in the left side of the neck just below the occiput and had later in the day involved his scalp.  Anatomically this is known as the sub-occipital triangle and contains the posterior nerve root of the second cervical nerve that gives rise to the greater occipital nerve and sensory innervation to the scalp  (Susan Sandring (ed.), Gray’s Anatomy (Elsevier, 41^st ed, 2015), 442-474.e1)

18. It was not until late January 2015 that Dr Mah requested an ultrasound of Mr Ho’s left shoulder and the clinical indications for this investigation are unclear.  Dr Mah’s evidence was that he had not turned his mind to a cervical spinal cause for Mr Ho’s pain and Mr Ho had denied any accidental injury.

19. Both Mr Kossmann and Mr Powell agree that there are two possible causes for Mr Ho’s symptoms. They agree that rotator cuff injuries are associated with above shoulder height activities.  Both considered Mr Ho’s investigation to be inadequate.  Mr Kossmann strongly recommended an MRI of both the shoulder and cervical spine and Mr Powell recommended an MRI of the cervical spine and, if an intra-articular shoulder injection of cortico-steroids was effective, an MRI of the left shoulder.  They agree that there may be pathological changes at both sites and that that cervical spinal disease if present would most probably be degenerative in nature.  Mr Ho’s clinical signs in 2016 were minimal and his symptoms were limited to his subjective reporting of left shoulder pain on abduction to greater than 70 degrees. 

20. The Tribunal agrees with Mr Carey’s submission that there is no rule requiring a definitive diagnosis to found s 14 liability, the requirement being only that there is an injury to a certain area. However the cervical spine and the left shoulder are not able to be defined as a “certain area” in the same sense that mental disorders or psychiatric disorders producing thought processes outside the norm has been considered by the higher courts. Neither expert has been willing or able to exclude either site as capable of producing Mr Ho’s symptoms. Mr Ho’s recall of events of 16 December 2014 point to an underlying cervical spine, cause be it paraspinal muscle in origin or actual vertebral pathology.

21. Mr Ho’s medical expenses to date are minimal, his sick leave unchanged in comparison to the pre-injury event of 16 December 2014 and he continues to work full time in modified duties with his actual mail deliveries limited to two and two and half hours. Thus any compensation attracted under s 16 and s 19 of the SRC Act would be limited in amount.

22. Both the evidence and the expert opinion before the Tribunal is such that a definitive diagnosis, at least to the degree required to attract s 14 liability, cannot be made and further investigation is clearly required. For this reason the Tribunal remits the matter to the respondent, Australia Post, for reconsideration and in particular consideration of funding for MRI investigations of both the cervical spine and the left shoulder, so that a decision under sections 14, 16 and 19 of the SRC Act may be properly determined.

23. In accordance with ss 67(9) of the SRC Act, the Respondent shall pay the Applicant’s costs of the proceedings before this Tribunal.

I certify that the preceding 62 (sixty-two) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member

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Dated             21 March 2017

Dates of hearing	5 December 2016 to 6 December 2016
Counsel for the Applicant	Mr M Carey
Solicitors for the Applicant	Maurice Blackburn Lawyers
Counsel for the Respondent	Mr R Seit
Solicitors for the Respondent	Australian Postal Corporation, Litigation Section

APPENDIX - EXHIBITS

Applicant

A01 - Statement of Mr Addy Ho dated 26 August 2016.

A02 - Report of Mr Thomas Kossman dated 24 March 2016.

A03 - No Report of Dr Kelvin Mah dated 29 October 2016.

Respondent

R01 - T-Documents

R02 - Leave Records for Mr Addy Ho from 2014 to 2016.

R03 - Australia Post Leave Application regarding 23 May 2012.

R04 - Entries from Records of Ms Elena Poon, Physiotherapist.

R05 - Summary of Overtime Records and Actual Overtime Records for September 2014 to January 2015.

R06 - Clinical Notes of Box Hill Family Clinic relating to Mr Addy Ho.

R07 - Report of Mr Gerard Powell dated 16 February 2016.