Howard and Anor and Australian Postal Corporation - [2002] AATA 400

DECISION AND REASONS FOR DECISION [2002] AATA 400

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1918

GENERAL ADMINISTRATIVE DIVISION       )
           Re      RAYMOND HOWARD GOODMAN CHAPMAN
  Applicant
           And    AUSTRALIAN POSTAL CORPORATION
  Respondent

DECISION

Tribunal Mr M J Sassella Senior Member

Date28 May 2002
PlaceSydney

Decision      The tribunal affirms the decision under review. The applicant is not entitled to costs in respect of this application.
   [SGD] M J SASSELLA
  Senior Member
CATCHWORDS
WORKERS COMPENSATION – right lateral epicondylitis – generalised tendonopathy – egg-shell skull analysis – temporary or ongoing aggravation of underlying condition – injury – incapacity for work – incapacity payments – provision of suitable work – work at same level as before injury

Safety, Rehabilitation and Compensation Act 1988 ss 4(1) ("ailment", "injury", "suitable employment"), (9), 14(1), 16(1), 19(1), (2), (4)(a), (g), 40.

Asioty v Canberra Abattoir Pty Ltd (1989) 87 ALR 385
Australian Postal Corporation v Bessey (2001) 32 AAR 508
Re Raymond Howard Chapman and Australian Postal Corporation [2000] AATA 182
Chapman v Australian Postal Corporation [2000] FCA 1700
Re Gibson and Commonwealth (1985) 7 ALD 558
Re Prica and Comcare (1996) 44 ALD 46
Tippett v Australian Postal Corporation (1997) 27 AAR 40

REASONS FOR DECISION

28 May 2002 Mr M J Sassella Senior Member

HISTORY OF APPLICATION

On 23 October 1998 the applicant, Raymond Howard Goodman Chapman, working for Australian Postal Corporation ("the respondent") in Murwillumbah, lodged an incident report in respect of soreness in his right elbow and right wrist which was caused by sorting of second class mail "over a long period of time". At the time of the incident he was sorting large letters and small packets and, according to his supervisor Colin Kem, the applicant had claimed that this activity had been affecting his right elbow and wrist for some time (T3).
On the same date as the incident report the applicant also lodged a claim for compensation with his employer (T4). He again identified the site of the injury as the right wrist and elbow and the cause of the pain as the continuous sorting of small packets and large letters over a long period. Attached to this claim was a witness statement by a colleague of the applicant, Mark Booth, who stated that "Ray complained of a saw [sic] arm to me about a month ago." The applicant authorised his doctors to provide information to the Respondent in relation to tennis and golf elbow and tennis wrist of the right arm, which he said were conditions he had been treated for before the incident of 23 October 1998.
On 24 December 1998 a delegate within the Australian Postal Corporation ("the respondent") approved payment of compensation under s 19 of the Safety, Rehabilitation and Compensation Act 1988 ("the Act") for the period 24 December 1998 to 20 January 1999. The compensation was paid in respect of the aggravation of a pre-existing condition, lateral epicondylitis of the right elbow (T9/50).
This condition caused the applicant to be unfit for work, and entitled him to compensation, for the following later periods:

1 January to 20 February 1999
22 February to 3 March 1999
18 to 30 March 1999
15 to 28 April 1999
29 April to 12 May 1999
18 to 26 May 1999
27 May to 4 June 1999
7 to 9 June 1999
15 to 18 June 1999.

On 26 May 1999 the respondent wrote to the applicant (T23), noting a report by rheumatologist Dr McGill dated 20 May 1999 (T22). This letter informed the applicant that, pending the submission of further medical evidence, it was likely that the respondent would determine that he suffered from no form of physical injury or disease and therefore would no longer be entitled to compensation. The respondent gave the applicant three weeks in which to provide further medical evidence.
On 13 July 1999 the respondent wrote to the applicant ceasing liability in respect of any injury (T27). The letter commented that, although the applicant's solicitor had requested an extension of time in which to submit further medical evidence, no submissions had been received by the respondent.
On 21 July 1999 the applicant requested reconsideration of the decision of 13 July 1999 (T28).
reviewable decision
On 3 August 1999 the respondent's decision of 13 July 1999 was affirmed by a reconsideration officer (T28). In particular, the reconsideration officer took into account the reports of Dr McGill dated 20 May 1999 (T22) and Dr Stabler, an orthopaedic surgeon, dated 5 July 1999 (T26). Dr McGill found no swelling of any upper limb joint and none in the right elbow. Limb reflexes and x-rays of the right elbow were found to be normal. Specifically he stated:
"I did not find evidence of any physical condition to account for his symptoms. His abnormal behaviour with respect to his right upper limb could not be accounted for on the basis of physical disease…
"I think there is no physical connection between his current reported symptoms and his work currently or previously."

Dr Stabler found that there was no wasting or deformity of right upper limb or neck. He also found that "the specific radiological signs for lateral medial epicondylitis were absent." However Dr Stabler did find that the applicant had widespread tendonopathy and lateral and medial epicondylitis of the right elbow. Dr Stabler stated, "I consider that the tendonopathy of the right elbow is consistent with having been caused by the nature of the work activities which Mr Chapman performs as a postal delivery officer." Despite the fact that Dr Stabler diagnosed lateral and medial epicondylitis of the right elbow, he also stated that x-rays showed "no evidence of an effusion in the right elbow…the specific radiological signs for lateral medial epicondylitis were absent." On the basis of these two reports the respondent ceased liability for compensation, not being satisfied that the applicant's "employment continues to contribute to the condition he claims to be suffering from."
On 13 August 1999 the Applicant lodged with the Administrative Appeals Tribunal ("the tribunal") an application for review of the decision (T1). This was lodged in Brisbane as application number Q1999/908.
On 8 March 2000 the tribunal affirmed the decision under review in Re Raymond Howard Chapman and Australian Postal Corporation [2000] AATA 182. The tribunal found that even though the applicant could not return to his previous work of sorting mail because of his susceptibility to lateral epicondylitis, he was not impaired and therefore had no incapacity to work. The tribunal found that the availability of the work that the applicant wanted to do was irrelevant. The respondent was not liable to pay any further or ongoing compensation.
On 7 April 2000 the Applicant lodged an appeal against the tribunal's decision with the Federal Court on the following grounds:
(a)The Tribunal was in error in deciding the applicant was not impaired and had no incapacity for work. There was no evidence to support this finding.
(b)The Tribunal misconstrued the meaning of "incapacity for work" pursuant to the Act.
(c)The Tribunal failed to consider the provisions of s 19 of the Act.
(d)The Tribunal failed to provide adequate reasons for its decision.
(e)The Tribunal failed to consider the applicant's entitlements to medical expenses pursuant to s 16 of the Act.
On 23 November 2000 the Federal Court in Chapman v Australian Postal Corporation [2000] FCA 1700 set aside the decision and remitted it to the tribunal, differently constituted, for determination in accordance with law. In the Federal Court there was no dispute that the tribunal had made material errors of law in its decision, however it was the respondent's submission that, irrespective of any errors of law, the correct decision had been made in the first instance. The Federal Court found that the tribunal did not disclose the reasoning by which the decision was reached and that the tribunal failed to fulfil the requirements of s 43 of the Administrative Appeals Tribunal Act 1975. There were said to be no proper findings made and no reference to important evidence, especially the conflicting evidence of the medical experts.
The tribunal's Queensland registry assigned application number Q2000/1125 to the matter as remitted. At a directions hearing in Brisbane on 19 December 2000 Senior Member K L Beddoe issued directions that the application was to be transferred to the tribunal's Sydney registry for it to arrange for a hearing to be held in Murwillumbah and Sydney. The application was then assigned its present number, N2000/1918.
BACKGROUND
The applicant was born on 28 August 1957 (T1/3). In 1994 his wife left him with three children aged 18, 15 and 13 (T13). He has remarried and has four children from his second wife's family. All seven children live with the applicant and his wife, one of the children having muscular dystrophy (T22).
The applicant left school in year 10 (T22) in 1973 (ex A1). In his written statement of evidence (ex A1) the applicant detailed his work history. He worked for the State Rail Authority from 1977 to 1990 as a porter, in a booking office, in a public relations section, as a guard and as a bus coach driver. He was made redundant in 1990. He then did further work driving buses and in ticket sales. He became a carer of his children and then worked for a short while as a school bus driver. He married for a second time in 1995 and returned to work at Australia Post as a casual early in that year.
The tasks that he fulfilled as a postal delivery officer were as follows (T29):

Express post labels
Sort express post packages
Card parcels
Write up registered mail
Move bins upstairs using trolley
Sort parcels on shelves
Street walk delivery
Set up tubs with labels
Put empty bags on racks
Use label printer
Tidying of storeroom areas
Restocking shelves in shopfront
Miscellaneous light cleaning.

Mr Chapman had an earlier compensation claim. On 30 September 1997 the respondent had accepted liability in respect of Mr Chapman's "right groin, pulled or stretched muscle for date of incident 16 September 1997". The period of liability was 17 to 23 September 1997 (T9/49).
RELEVANT LEGISLATION
The relevant provisions from the Safety, Rehabilitation and Compensation Act 1988 are: ss 4(1) ("ailment", "injury", "suitable employment"), (9), 14(1), 16(1), 19(1), (2), (4)(a), (g), 40.
SAFETY, REHABILITATION AND COMPENSATION ACT 1988
Interpretation
4. (1) In this Act, unless the contrary intention appears:
…
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development);
…
injury means:
…
(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;
…
suitable employment, in relation to an employee who has suffered an injury in respect of which compensation is payable under this Act, means:
(a) in the case of an employee who, on the day on which he or she was injured was a permanent employee of the Commonwealth or a licensed corporation and who did not subsequently terminate that employment-employment by the Commonwealth or the licensed corporation, as the case may be in work for which the employee is suited having regard to:
(i) the employee's age, experience, training, language and other skills;
(ii) the employee's suitability for rehabilitation or vocational retraining;
(iii) where employment is available in a place that would require the employee to change his or her place of residence-whether it is reasonable to expect the employee to change his or her place of residence; and
(iv) any other relevant matter; and
(b) in any other case-any employment (including self-employment), having regard to the matters specified in subparagraphs (a) (i), (ii), (iii) and (iv);
…
(9) A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a) an incapacity to engage in any work; or
(b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.
…
Compensation for injuries
14. (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.
…
Compensation in respect of medical expenses etc.
16. (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.
…
Compensation for injuries resulting in incapacity
19. (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 compensation to the employee in respect of the injury, for each of the first 45 weeks (whether consecutive or otherwise) during which the employee is incapacitated, of an amount calculated under the formula:
NWE - AE
where:
NWE is the amount of the employee's normal weekly earnings; and
AE is the amount per week (if any) that the employee is able to earn in suitable employment.
…
(4) In determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to:
(a) where the employee is in employment-the amount per week that the employee is earning in that employment;
…
(g) any other matter that Comcare considers relevant.
…
Duty to provide suitable employment
40. (1) Where an employee is undertaking, or has completed, a rehabilitation program, the relevant employer shall take all reasonable steps to provide the employee with suitable employment or to assist the employee to find such employment.
(2) In this section:
"relevant employer" means:
(a) in relation to an employee employed by a Commonwealth authority-that authority; and
(aa) in relation to an employee employed by a licensed corporation-that corporation; and
(b) in relation to any other employee-the Commonwealth.
…

HEARING, APPEARANCES AND DOCUMENTARY EVIDENCE

The tribunal convened a hearing in this matter in Murwillumbah and Sydney which ran from 8 to 10 May 2001. Mr L T Grey of counsel represented the applicant. Mr B Skinner of counsel represented Australia Post.
The tribunal had access to the following documentary material which was accepted Into evidence and given exhibit numbers as follows:

Exhibit TD1 – Section 37 Statement for application no Q1999/908 with associated documents (exhibits T1-T31), provided by the respondent.
Exhibit TD2 – Pages 36-65 of transcript of tribunal hearing on 23 February 2000.
Exhibit TD3 – Pages 4-35 of transcript of tribunal hearing on 23 February 2000.
Exhibit A1 – Applicant's statement of evidence received by tribunal on 1 October 1999.
Exhibit A2 – Report by Dr D Stabler, orthopaedic surgeon, 20 April 1999.
Exhibit A3 – Report by Dr Stabler, 12 May 1999.
Exhibit A4 – Report by Dr Stabler, 9 June 1999.
Exhibit A5 – Report to solicitors by Dr Stabler, 16 November 1999.
Exhibit A6 – Report to general practitioner by Dr Stabler, 16 November 1999.
Exhibit A7 – Radiology report on elbows dated 23 March 2001.
Exhibit A8 – Report by Dr G M Weisz, orthopaedic surgeon, 20 April 2001.
Exhibit A9 – Applicant counsel's chronology of events.
Exhibit A10 – Applicant's employment contract with respondent, 26 August 1996.
Exhibit A11 – Return to work documents.
Exhibit A12 – Applicant's statement of facts and contentions dated 28 September 1999.
Exhibit R1 – Report by Dr N W McGill, rheumatologist, 25 January 2000.
Exhibit R2 – Report by Dr McGill, 5 February 2001.
Exhibit R3 – Report by Dr McGill, 3 May 2001, commenting on ex A7.
Exhibit R4 – Single paragraph letter dated 3 May 2001 from Dr McGill to the respondent's solicitor.
Exhibit R5 – Dr Moran's clinical notes.
Exhibit R6 – Job sharing agreement between applicant and Ms K Dunstan, 1 December 1999 to 30 November 2000.
Exhibit R7 - Job sharing agreement between applicant and Ms K Dunstan, 1 December 2000 to 30 November 2001.
Exhibit R8 – Respondent's statement of facts and contentions dated 4 November 1999.

FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS

The central issue in this matter is whether Mr Chapman has any ongoing compensable incapacity for work. Mr Grey, for Mr Chapman, told the tribunal that Mr Chapman had suffered injury affecting his wrist and elbow in the course of his employment in the months leading up to October 1998. He had received treatment from that date. He had engaged in a return to work program for a period but still had an incapacity. He could not perform work at the level possible before his injury. The respondent considered Mr Chapman fit for full-time duty. However, Mr Grey said, Mr Chapman had not been able to get a job with Australia Post on a full-time basis that he was able to do. The applicant was seekinmg "make up pay" under s 19(4)(a) of the Act.
Mr Skinner, for Australia Post, told the tribunal that Mr Chapman had no present incapacity at all. He was fit for full-time duties. His real complaint was as to the availability of work, not a matter covered by the Act. He had not been able to win appointment or promotion to a full-time job. He has had a job sharing arrangement with Ms Kailene Dunston, a private arrangement within guidelines established between Australia Post and the union and available within the discretion of management. This was another matter outside the ambit of the Act. The applicant "owned" within Australia Post a job requiring work for 11 hours a week. A second job was "owned" by Ms Dunstan. She had agreed to share it with Mr Chapman. This enabled him to increase his hours of work each week to closer to full-time. Indeed, it appeared that in some weeks the applicant was able to work for over 40 hours.
Mr Grey then explained that the applicant's position was that, where an employer puts an employee into a job for 11 hours a week and then, for over two years, employs the worker in a position where he or she works for 40 or more hours a week, then if positions of the full-time type are subsequently available, and the employee is not given one of these, then he or she is entitled to be measured against the full-time type of position for compensation purposes.
applicant's oral evidence
Mr Chapman told the tribunal that he was originally given permanent part-time work by the respondent for 11 hours a week in August 1996. In cross-examination it was established that he would work for 11 hours a week but also for additional hours depending on absences by other delivery officers. There was no "relieving" postal delivery officer. The depot was too small to justify one. The applicant filled in as such when required. He agreed that this was the only permanent position to which he had ever been appointed. The applicant said that before he was made permanent in 1996 he had worked effectively on a full-time basis. It was understood that he would be given full-time work once he was made permanent. He became full-time de facto. He said that he would not have taken the job if it was to be for only 11 hours a week. Mr Grey called for the applicant's employment contract. This was tabled (ex A10). It referred only to the applicant being required to work for 11 hours a week. There was no record within it of any of these understandings. He had worked additional hours, usually up to 40 hours a week, from the beginning. While his hours had fallen back to 11 a week for a time, they returned to 40 or more a week for two years before he reported his injury in October 1998. His duties had been the same every day, sorting second class mail. He was the only operative doing this work. He then delivered mail on his run using a motor cycle. He would use his left hand to deliver the mail and his right to steady the motor cycle. Prior to 1996 he had never had problems with his right arm, elbow, wrist or shoulder.

When he did delivery work he was acting in the delivery depot for others who were absent.
From about October 1997 the right arm became sore around the elbow. Mr Chapman was definite that the second class mail sorting was the cause. He reported it to a manager in about May 1998. He and a workmate, Mark Booth, had agreed to rotate their duties and requested approval to do so. The manager, "Louis", refused this and was adamant in the refusal. In October 1998 Mr Chapman could not bear the arm pain any longer. He saw general practitioner, Dr Moran, and was off work until January 1999. By that time the wrist was much improved, the elbow only slightly improved.
In January 1999 Mr Chapman commenced a rehabilitation program, working 14 hours a week, spread over five days. He still had considerable pain in the right arm and treatment was ongoing. He did no second class mail sorting. Mr Chapman told the tribunal in the first hearing on 23 February 2000 that his elbow had never been pain-free since 1997 but that the level of pain fluctuated.
In June 1999 he commenced a return to work program at South Tweed Delivery Centre. Mr Chapman appeared notably enthusiastic about the South Tweed work. It involved no sorting. He was there for five weeks and said he coped well. The hours he worked per week grew each week to 40 hours by the final week. In cross-examination Mr Chapman agreed that "when [he] completed the graduated return to work program, both [he] and the rehabilitation facilitators were satisfied that [he] could do the full-time duties of a postal delivery officer at Tweed Heads" (transcript, 8 May 2001, 51). Mr Chapman agreed with Mr Skinner that access to such a job depended on a vacancy arising.
Mr Chapman was then returned to Murwillumbah where he said he did retail work for 11 hours a week. There were other retail staff on full-time hours. He later said (transcript, 8 May 2001, 31) that he was doing only sorting work at this time at Murwillumbah at 11 hours a week. The tribunal is unclear exactly what he was doing. At various times his evidence contained non sequiturs, some of which seemed to surprise even Mr Grey. One such instance was where Mr Grey seemed to understand that Mr Chapman had wanted to do mail delivery work at Murwillumbah at this time but it had been refused when he asked for it. The applicant's evidence was, in fact, that he had asked for such work at South Tweed and he had asked there for full-time work. However, that had been refused him at South Tweed. [This was not quite accurate – see paragraph 29 above.] Mr Grey then appeared surprised to learn that Mr Chapman had not asked to do delivery work when he was back at Murwillumbah. Mr Chapman was then vague as to why he had not asked to be considered for delivery work at Murwillumbah. He said that he had not been sure if there were vacancies for such work. He then said that there would have been jobs available from time to time in Murwillumbah delivery but he did not apply for them. Mr Grey suggested to Mr Chapman that this reticence was because Mr Chapman did not think he could do these jobs and Mr Chapman agreed with that suggestion (transcript, 8 May 2001, 32). Mr Chapman was, however, clear that no one at Murwillumbah at the time offered him any work other than second class mail sorting.
Mr Chapman then explained that he returned to South Tweed to a job sharing arrangement with Ms Kailene Dunstan. She "owned" a full-time job but wanted to work only two days a week. Pursuant to the Australia Post enterprise bargaining agreement, and with management approval, he and Ms Dunstan signed successive agreements whereby he worked three days a week (22-24 hours) in her position and she worked two days a week. Mr Chapman also filled in for her on her days when she was absent. Mr Chapman agreed with Mr Skinner that Australia Post had not intervened to invite him to enter into this arrangement.
Mr Chapman was adamant that he preferred working at South Tweed because there was no handling of a large volume of second class mail. He told the tribunal and Mr Norton, a manager at South Tweed, that he would be happy to take up a full-time position there. Since he returned to South Tweed full-time positions have emerged and been filled, sometimes by others junior to Mr Chapman. He has not been invited to apply for any of these vacancies. Mr Chapman said that he would be prepared to do a full-time job in South Tweed. He also said that, if his old job at Murwillumbah, the pre-injury job, was offered to him he would refuse it because it would aggravate his arm. In giving this answer he initially suggested that the job should involve rotation of duties. He then said that it was "hard to say" "not 100%". He later told Mr Skinner that he did not want to return to Murwillumbah delivery centre because he would have to do sorting there to some extent. At Tweed Heads there were night sorters. He would not need to sort at all. He agreed with Mr Skinner that the purpose of these proceedings was to have Australia Post give him a full-time position as postal delivery officer at Tweed Heads (transcript, 8 May 2001, 54). In ex A1/5 he had explained the purpose of these proceedings:
"I am therefore now at Murwillumbah Retail Centre doing class A sorting working almost full time hours.
"I am earning much less money in this position than I would be in my pre-injury position at the Delivery Centre."

This has been overtaken by events as he is, of course, now in his job sharing arrangement at South Tweed Heads. Yet another explanation for the proceedings appeared in ex A12, the applicant's statement of facts and contentions, "the Applicant is entitled to compensation for medical treatment expenses beyond the 19th June, 1999".

In cross-examination Mr Skinner took the applicant through Australia Post's recruitment and promotion arrangements. These are as follows:

A postal delivery officer position is at base level.
Mr Chapman had told Colin Norton in Tweed Heads South that he would like to be considered for a position of postal delivery officer if one became available.
Mr Chapman thought "it was 1996, that [he] had a written application for a full-time position at South Tweed or Murwillumbah delivery centres when one ar[ose]" (transcript, 8 May 2001, 45). He said that had gone to head office but then he said that he gave it Col Wiley, manager of the Murwillumbah retail centre. He had not given an application to the manager of the postal delivery centre at Murwillumbah. He had not given a written application for consideration as a postal delivery officer to the manager of the Tweed Heads South delivery centre.
In filling delivery officer vacancies priority is given to the transfer of full–time permanent employees holding a nominal position. Next in priority are permanent part-time employees. Next in priority are casual fixed term employees. The lowest priority are persons who are not employees of Australia Post.
There was no register at Australia Post where expressions of interest in vacancies were entered. Discussions would occur with the manager. There was a weekly vacancies bulletin for NSW and the ACT.

Mr Chapman had also done some work driving buses. In the earlier tribunal hearing he had said he did a little bit of bus driving. By the time of this hearing he had reduced this work. There was little weekend bus driving available in the area. The driving did not place pressure on his right arm. He was a bus driver ferrying athletes for six weeks the 2000 Sydney Olympic Games and Paralympic Games. He said he coped fairly well with that work. The buses were automatic. He took leave from the job shared with Ms Dunstan. In cross-examination he told Mr Skinner that he had taken no time off other than for this Olympic work.
Mr Chapman had also helped out at an Ampol service station. He had not done that work for some time.
Mr Chapman described what aggravated his arm. These activities included lawn mowing, routine home maintenance with tools such as hammers and screwdrivers, tightening the ropes to erect a camping tent and changing a tyre. He agreed that he could do actions where there was no jerking, vibrating action or pulling or pushing. He felt that lifting would not be a problem. He was not receiving treatment other than taking Panadols as needed. He had not had treatment, he thought, since finishing with a physiotherapist in 1999.
Mr Chapman told the tribunal that his compensation payments in 1998 to 1999 were based on him working for 40 or so hours a week.
Mr Chapman told the tribunal that he had seen Dr Stabler about eight days before he saw Dr McGill on 20 May 1999. Dr Stabler gave him injections in the elbow and they had helped his pain "settle down a bit". He had seen Dr McGill after a longer period since Dr Stabler's injections and his elbow "settled down, yes".
medical evidence
On 19 November 1998 Dr Taylor, radiologist, provided a report on the applicant (T11). No abnormality was found.
On 4 December 1998 Dr John Sweeney, orthopaedic surgeon, provided a report on the applicant, at the request of the respondent (T13). The report found the following:

Full range of flexion and extension and lateral extension but pain on the right side on rotation
No muscle wasting in upper arms, but limitation of abduction to 120 degrees.
Tenderness over the lateral epicondyle of the right elbow.
Normal reflexes and sensation.
Diagnosis of lateral epicondylitis of the right elbow.
On balance of probabilities the condition was attributed to employment, although with the possibility of some degeneration pre-existing the causative effects.
The applicant's work aggravated the condition, with uncertainty as to when the effects of the work relation aggravation will cease.
The applicant was found to be partially incapacitated for work, for approximately six months.
Restrictions on lifting and repetitive work were recommended.
Recommendation of cortisone injection and physiotherapy.
The symptoms should settle six months.

On 18 December 1998 Dr George Freeman, orthopaedic surgeon, reported on the applicant (T14). He gave a provisional diagnosis of painful dysfunctional right arm resulting from boring, repetitive work. Dr Freeman expected that there would be "great difficulty in regaining 'normal use' of [the] right arm, as it is usually rather difficult to give up dysfunctional patterns of movement."
On 23 December 1998 the applicant underwent a physiotherapy review (T15). The review reported pain and loss of grip strength in the right facet joints. The applicant reported constant pain and right sided headaches. The physiotherapist was unsure of the prognosis.
On 21 January 1999 Dr Greg Knight, specialist in occupational medicine, wrote to the applicant's rehabilitation case manager at Australia Post (T17). He confirmed the primary diagnosis of right lateral epicondylitis. There was also the suggestion that his pain could have been aggravated by non-work factors including fishing, hockey, cricket and casual work as a pump attendant.
On 27 April 1999 a radiological report was forwarded to Dr Stabler, orthopaedic surgeon (T20). It found no evidence of joint effusion and no focal bone or joint abnormality visible. It detailed a number of normal findings and the report's summary was "normal examination."
On 20 May 1999 Dr N W McGill, rheumatologist, provided a report on the applicant at the request of the respondent (T22). He found no evidence of any physical condition that would account for the symptoms. Dr McGill could not account for the abnormal behaviour exhibited at the consultation. He found no evidence of epicondylitis. He conceded that the applicant may have had this condition in the past but that, if he did, it was no longer present. Dr McGill found no physical connection between the reported symptoms and the applicant's employment. He found no continuing work related injury and reported that the applicant was fit to return to full-time sorting work and recommended a graded return to work over six weeks.
On 31 May 1999 Dr McGill stated in a letter to the rehabilitation case manager that the applicant was fit to perform motorcycle delivery work (T25). This was in response to specific questioning from the case manager.
Dr McGill gave oral evidence at the tribunal's hearing on 10 May 2001. This is discussed below in paragraph 64 and following.
On 5 July 1999 Dr Stabler provided a report on the applicant (T26). He diagnosed widespread tendonopathy in the right elbow and lateral and medial epicondylitis of the right elbow. He also found cervical disc and apophyseal joint degeneration. The tendonopathy was consistent with the applicant's work duties, however the cervical spine pathology was found not to be employment caused.
There were in fact many other reports by Dr Stabler produced before the tribunal. These included the following additional information of relevance:

In ex A2, 20 April 1999, Dr Stabler reproduced Mr Chapman's complaints of "pain down the whole of the upper limb and tingling particularly in the middle, ring and little fingers" by extension and rotation of the cervical spine to the right side and by pressure on the brachial plexus in the interscalene region. He had not yet made a diagnosis and had called for x-rays.
In ex A3, 12 May 1999, Dr Stabler noted that the x-rays showed mild degenerative changes in the mid cervical apophyseal joints and narrowing of the C4/5 neural foramen due to a combination of facet arthropathy and neuro-central joint arthropathy. He also thought the C5/6 disc slightly narrow. He was "able to reproduce pain and tingling in the right upper limb, particularly in the central part of the hand and middle finger, with extension and rotation of the cervical spine to the right side", which was "consistent with cervical nerve root compression". He thought Mr Chapman had "generalised tendonopathy of the right elbow". He said, "I have explained to him that this problem is really due to an inherent problem in his own body rather than excessive work". As will be seen below, the respondent regarded this sentence as central to its case. He went on to say, "Australia Post will probably be happy to accept the tendon pathology in his right elbow but the cervical spine problem is not in any way associated with his work duties".
In ex A4, 9 June 1999, Dr Stabler had seen Mr Chapman because his elbow had become more painful. The doctor understood Mr Chapman to be "back at work on the motorbike and … having increased pain in the right elbow".
In ex A5, 16 November 1999, Dr Stabler addressed Dr McGill's findings that there was no evidence of tendonopathy and lateral or medial epicondylitis. He considered himself to be in a better position than Dr McGill to diagnose as he had seen Mr Chapman on a number of occasions. Dr McGill saw him only once.
In ex A5, 16 November 1999, Dr Stabler wrote, "I have explained to him today that the problem really is his right elbow, rather than the nature of the work, as all other workers are able to cope without difficulty". He considered two job options opened to Mr Chapman. One was the job-share at Tweed Heads South. The other was driving buses from the airport to Cooran Cove. He recommended Mr Chapman try both but he thought the bus driving, with fewer repetitive actions, would probably be a better choice.

On 23 March 2001 Dr Mason provided an ultrasound report for Dr George Weisz (ex A7). No abnormalities were found.
On 20 April 2001 Dr Weisz, orthopaedic surgeon, reported on the applicant, with the benefit of Dr Mason's ultrasound report (ex A8). He diagnosed "a typical mechanism of overuse of tendinous and muscular system of the forearm and elbow on his dominant side. It is plausibly the result of the forceful and repetitive work he performed." On the basis of all the documentation, Dr Weisz confirmed the diagnosis of epicondylitis of the right elbow. Dr Weisz stated that the conditions of the applicant's work were substantial contributing factors to the disability. He found a permanent efficient loss of use of the dominant right arm of 20%.
Dr Stabler twice gave oral evidence before the tribunal. On 23 February 2000 (ex TD3) he made the following useful comments. He described epicondylitis as "some damage, degeneration or loss of blood supply to the tendon fibres which attach to the outside of the elbow, which is called the lateral epicondyl, and that pathology causes pain on movement of the elbow, but particularly on movement of the wrist and hand, particularly on picking up objects (transcript, 5). He said that x-rays were unhelpful and they were used mainly to exclude other pathology such as tumours, infection, or arthritis in the joint. He said that in very chronic epicondylitis there can be some bony changes. He also considered that ultrasound and MRI scans were of little or no use in diagnosing epicondylitis. He considered the most accurate way of diagnosing epicondylitis was by clinical examination. Dr Stabler considered that the best way of testing for right lateral epicondylitis was to look for pain in the right elbow which is experienced when the right wrist is extended against resistance.
Concerning the prognosis where a person suffers from epicondylitis, Dr Stabler said, "... this type of problem may well settle completely with modification of activity, but it's extremely common for a re-introduction of the offending activities to cause the resumption of symptoms and that, I believe, is not necessarily due to a pre-existing condition but it's due to the effect of the overuse syndrome". (Transcript, 11) Dr Stabler also said that he thought that Mr Chapman's examination by Dr McGill may have been affected by the fact that eight days prior to that examination Mr Chapman had received injections in his right elbow administered by Dr Stabler. Dr Stabler considered that chronicity was a hallmark of the condition of epicondylitis. He said that he had people presenting to him with ten-year histories of lateral epicondylitis. He said that this can be extremely prolonged and may fluctuate. It can come and go. It can go away for a year or two and then return again.
Dr Stabler said that he considered Mr Chapman probably fit to do light work that did not involve a lot of repetition, but he was not fit to perform continued repetitive work or handle heavy weights, certainly not in a repetitive manner.
In cross-examination on 23 February 2000, Mr Skinner asked Dr Stabler to explain tendonopathy. This was in reference to Dr Stabler's report dated 12 May 1999 (ex A3) in which he had identified cervical spine pathology and tendonopathy of the elbow. Mr Skinner asked where tendonopathy fitted in with the descriptive pattern of Mr Chapman's condition. Dr Stabler said, "Tendonopathy is a generalised terms [sic] which means a pathological process of a tendon, and that's just a generalised term, like motor vehicle. Rather than saying in the letter I think he has lateral epicondylitis and biceps tendonitis and medial epicondylitis of the right elbow, I have said he has got generalised tendonopathy; its shorthand, if you like." (transcript, 24) Dr Stabler agreed that he had explained to Mr Chapman that the problem was in his own body leading to this generalised tendonopathy rather than based on any excessive work. He went on to say, "It's usually a problem with the local blood supply which predisposes individuals to this type of problem with repetitive work." (Transcript, 24)
Mr Skinner port to Dr Stabler that the reality with Mr Chapman was that work had nothing to do with his condition in the right elbow. Dr Stabler responded that that was totally incorrect. Mr Skinner was referring to Dr Stabler's comment, noted above, "I explained to him today that the problem really is his right elbow rather than the nature of the work as all other workers are able to cope without difficulty". Dr Stabler stated, "When I'm talking about -- you are making an assumption about what I mean by the problem. The problem is that he can't do the work satisfactorily and my -- my statement there, quite clearly to me, indicates that the problem, his not being able to work, relates to his elbow condition and of the nature of the work. I said earlier in the letter that it wasn't excessive work that was the problem; he's got a predisposition to the problem and the nature of the work in him has caused lateral epicondylitis. Once having developed epicondylitis, he now can't cope with his normal work duties. That's what the problem is." (Transcript, 26)

As regards work for which Mr Chapman was fit, Dr Stabler said as follows:
"Well, I think it's entirely possible that he could go back to full-time work if the work was if the repetition of the work and heaviness of the work and the biomechanics of his work situation was such that they didn't aggravate his symptoms, that's entirely possible, but because this is a condition which fluctuates, something like lateral epicondylitis is almost impossible to make prognosis about because he may cope this month, he may not cope next month, then he may cope the month after. It's certainly possible that he could cope some of the time, but not cope all the time." (Transcript, 31)
In the tribunal hearing on 8 May 2001 Dr Stabler confirmed his diagnosis of lateral epicondylitis. He said that was consistent with the work done by Mr Chapman. He had still had localised pain to the lateral epicondral humerus. Dr Stabler addressed the x-ray report at ex A7. This was in fact a report of an ultrasound and plain x-ray of the right elbow. The findings reported by radiologist, Dr R W Mason were:
"…
DIAGNOSIS
CHANGES CONSISTENT WITH RIGHT TENNIS ELBOW.
DISCUSSION
An ultrasound of the left elbow demonstrated no obvious abnormality. On the right side there was some mild thickening of the common extensor tendon at its point of insertion into the humerus and there are also a couple of ill-defined hyperechoic areas within the tendinois point of insertion in keeping with a mild right tennis elbow. The common flexor tendon demonstrated no definite abnormality at its point of insertion into the humerus. A plain x-ray was performed of the right elbow to look for any calcification as there was echogenic material at the point of insertion of the common extensor tendon into the humerus. No obvious calcification was however seen on the plain x-ray.
…"
Dr Stabler said he could see a small amount of extra bone formed over the epicondyle region. This was said to be evidence that there had been lateral epicondylitis. He said that finding meant "excessive force has been applied to the lateral epicondyle region over a prolonged period, and that has stimulated the covering of the bone, called the periosteum, and that has produced new bone" (transcript, 58-59). Dr Stabler said also that the references to hypoechoic areas within the tendon point of insertion were consistent with lateral epicondylitis.
Dr Stabler commented on Dr McGill's observations. He said, "Well, rheumatologists, unfortunately, don't ever have the opportunity to look at the actual pathology and so they're really – I believe that the accuracy of diagnosis of a rheumatologist must always be in doubt in this type of condition. They have access to the same reports as we do from the radiologists and the same X-rays but they do not have the benefit of seeing the clinical signs, examining the patient and then seeing the actual pathology and then seeing whether the patient recovers from the condition, and so their own personal experience can never be as accurate as that of an orthopaedic surgeon who actually operates on the condition" (transcript, 62). He allowed that when Dr McGill examined Mr Chapman in May 1999 the fluctuating symptoms may have meant that Mr Chapman was not demonstrating symptoms of epicondylitis on that day.
Mr Skinner questioned Dr Stabler's assessment of what work the applicant was fit to do. Dr Stabler agreed that he had accepted Mr Chapman's assessments of what he could and could not do. He agreed that he had not seen Mr Chapman since 1999. After some hesitation Dr Stabler reluctantly accepted that he was best acquainted with the duties required of Mr Chapman as in 1998. He was unaware of the introduction of V-frame sorting equipment which altered the sorting process. An up to date assessment would depend on his obtaining fresh information about the duties.
Mr Skinner had Dr Stabler assess Mr Chapman's fitness to perform the duties of the work share position on a five days a week basis. Dr Stabler agreed that he could do these duties as a postal delivery officer on a full-time basis given that Mr Chapman said he could do this and given that he had had no time off as a result of doing those duties.
In answer to a question from the tribunal, Dr Stabler summarised the contribution of Mr Chapman's work to his epicondylitis. He said:
"On a good day, though, most people are able to cope with all these [Australia Post] duties, but a certain number of people are not, and they are those individuals who are susceptible to tendonopathy. If, however, they don't do the work, then they don't get the tendonopathy. So there is -- I have not there said that the work has no relevance all. What I've said that the problem for him is -- is not -- not specifically doing the work but the problem is himself in that he has a bad elbow, if you like. It's an elbow which does not tolerate the work which other elbows tolerate. That was the point that I was trying to make. And -- and in fact there is a definite association with the work. The work plus his susceptible elbow have resulted in the present pathology. Were it not for the work, even with a susceptible elbow, he probably would never have got the condition." (Transcript, 66)
In oral evidence Dr McGill said that he could not discern in the plain x-ray (ex A7) the ossification perceived by Dr Stabler. This had been the focus of his attention. Dr McGill went so far as to say it was inconceivable that there was a presence of ossification. The actual tennis elbow abnormality reported on by Dr Mason in ex A7 was somewhat minor in Dr McGill's assessment. In any event, the point of the ossification was that it demonstrated, in Dr Stabler's view, that Mr Chapman had had epicondylitis. Dr McGill was prepared to accept that Mr Chapman may have had lateral epicondylitis. However, he would still be fit to work a full five days as a postal delivery officer. There would be no necessary restrictions.
In cross-examination Dr McGill agreed that the injections in the elbow administered by Dr Stabler eight days before Dr McGill saw Mr Chapman would have affected the examination Dr McGill carried out on 20 May 1998.
Dr McGill saw some validity in Dr Freeman's assessment (T14) where he said that Mr Chapman did not really satisfy the stress tests for tennis elbow. He had a painful dysfunctional right arm resulting from repetitive, boring work.
As noted above, Dr McGill was prepared to accept that Mr Chapman may have had epicondylitis at some stage and that, if he had had the condition, there would likely have been a connection between Mr Chapman's work and the epicondylitis. However, Dr McGill considered that epicondylitis usually resolves. He disagreed with Mr Grey that it would not resolve. He was adamant that he disagreed with Dr Stabler on this point. He said that he saw Mr Chapman as fit to return to his old duties. He repeated that epicondylitis does resolve and that there is no high risk of recurrence. He instanced tennis players who recover from tennis elbow.
final submissions
Mr Grey presented the case as a s 19 case, that is a case sounding in incapacity payments. It was necessary to find the existence of an injury causing the employee to be incapacitated for work (s 19(1) of the Act). He said that Mr Chapman had sustained an injury as defined in s 4(1) of the Act. In the process of mail sorting he had developed elbow problems. These had persisted up to the day of the hearing. Australia Post had accepted this as the case until 13 July 1999 when it had ceased liability (T27). As regards the particular medical condition, Mr Grey submitted that it did not greatly matter if it was lateral epicondylitis or something else. Dr Sweeney (T13) had diagnosed epicondylitis. Dr Freeman (T14) had diagnosed a painful dysfunctional right arm resulting from repetitive boring work. Dr Stabler had diagnosed epicondylitis. Dr McGill (T22) could find no evidence of any physical condition. In various ways each doctor had been prepared to accept that any physical diagnosis was linked to Mr Chapman's work. Mr Grey submitted that no expert had doubted Mr Chapman's genuineness.
In addressing Mr Chapman's incapacity for work Mr Grey referred to the definition in s 4(9) of the Act. This requires that the employee, as a result of an injury, must have an incapacity to engage in any work, or an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation immediately before the injury happened. Mr Grey cited several leading cases on these matters.
In Re Prica and Comcare (1996) 44 ALD 46 the tribunal addressed the situation where the employer retains an injured employee on lighter work but at the same or a higher salary than he or she enjoyed immediately before the injury. The tribunal said in paragraphs 22 and 23 (at page 51):
"The phrase 'at the same level' in para (b) of the definition does not appear to have been the subject of consideration by a Court or this Tribunal. The reference to 'level' could be construed as a reference to a grade or salary level or could be a reference to the nature of the work in the sense of its characteristics, which will include its degree of difficulty. If the former construction were adopted it would produce the apparently anomalous result that a person with severe (or moderate) disabilities would be found to lack any incapacity for work as long as they continued to occupy the same grading or earn the same salary as at the date of the injury. The anomaly would not arise under the latter construction. A finding of an incapacity itself does not necessarily result in any entitlement to periodic or lump sum compensation under the Act. There are additional requirements in ss 19, 24 and 27 concerning those issues. Hence a construction of s 4(9)(b) which permits a finding of an incapacity for work in circumstances where the applicant subsequent to an injury is engaged in light duties at their former salary does not produce any anomaly within the Act and recognises that incapacity for work is a relative concept and a matter of degree.
"We are satisfied that in the period from the applicant's return to work after the mid-1991 accident, to the point of his leaving his employment, the applicant was not engaged in work at the same level as that in which he was engaged prior to that accident. The respondent adduced evidence designed to establish that from 6 November 1992 until the present the applicant has retained his capacity for the post mid-1991 lighter duties in the proof coin area. This may or may not be established, but for present purposes we note that the respondent did not seek to show that the applicant could still perform his pre-mid 1991 duties in the circulation coin area. We would thus find that from 6 November 1992 until the present that the applicant does have an incapacity for work."
In relation to an injury in the sense of an aggravation there are several Federal Court authorities that may at first appear difficult to reconcile. The first, Tippett v Australian Postal Corporation (1997) 27 AAR 40, involved can employee who from late 1994 had to drive a manual transmission van as part of his job. He was also a keen, active sportsman. He developed a mild rotator cuff impingement of his left shoulder ("the injury") in 1995. Several doctors considered that the injury may have been aggravated by the repetitive changing of gears that occurred when the employee drove the van at work. Australia Post refused Mr Tippett's compensation claim on the basis that the injury had been caused by sporting activities. An orthopaedic surgeon gave evidence on behalf of Australia Post. He considered that the injury could be "symptomatic when changing gears" but that that activity had not "significantly aggravated" Mr Tippett's injury. In one answer he gave to a tribunal member the orthopaedic surgeon said, "the repetitive movement that he was performing was not particularly the kind of movement that's likely to precipitate the condition, in that most of his movement, as it is now explained to me, has been down low and that's not likely to precipitate rotator-cuff problems, although once you've got the problem any movement tends to be painful." The tribunal found that the injury Mr Tippett had suffered before he had commenced his employment with Australia Post had not become worse as a consequence of the employment. However, Finkelstein J said at pages 43-45:
"First it is necessary to say something about what is meant by the aggravation of an injury. It is sufficient to begin this discussion with a reference to the decision of the High Court in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626. That case concerned the meaning of the word 'exacerbation' in a New South Wales workers compensation statute where 'injury' was defined to include 'the aggravation, acceleration, exacerbation or deterioration of any disease where the employment was a contributing factor to such aggravation, acceleration, exacerbation or deterioration'. The disease in question was a mental illness and the question was whether that mental illness had been exacerbated by the worker's employment. There is an important passage in the judgment of Kitto J (at 634), with whom Taylor J agreed, which I should set out:
'Moffitt J (at first instance) placed at least some of his emphasis upon the word "exacerbation", and it seems to me that that word is the critical word for this case. As applied to a disease it is properly used to refer to effects which the disease produces in the victim rather than to the advance of the disease itself in a more serious stage of its development. "A temporary increase in the violence of the symptoms of a disease" is the medical sense of the word according to Funk & Wagnall's, Standard English Dictionary. And in the Oxford English Dictionary may be found illustrations of the use of the word as referring to particular manifestations of a diseased condition. It is not a technical word, requiring scientific explication or application. It is an ordinary English word to be applied by the Court to the proven facts. Once it was established, as it was established beyond question before the Commission by the evidence of the psychiatrists who were called, that the incident of 1 December 1960 acted upon a pre-existing condition of mental illness (a disease) to produce a delusion causing incapacity for work, the respondent had made a clear case of exacerbation of her mental disease, according to the ordinary meaning of that word. Moffitt J was right, I think, in saying: "There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying its symptoms. The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism." Accordingly if salt be applied to an open wound, making the wound no worse but causing it to smart as it had not smarted before, it is proper to say that there is an exacerbation of the wound. Equally, where an untoward occurrence in a worker's employment causes a pre-existing mental disorder to manifest itself in a new delusion, it seems to me proper to say that there is an exacerbation of the mental disorder.'
"In other words, there will be an exacerbation of an injury when the experience of the injury is increased or intensified without any alteration to the underlying physical or mental condition. In considering the meaning of the word 'aggravate' in the Compensation Act, which is the only one of the four words that appeared in the definition of 'injury' in the New South Wales statute considered in Semlitch, it has been held that the same principles apply; that is to say an injury will be aggravated if the experience of the injury is increased or intensified: Commonwealth v Beattie (1981) 35 ALR 369. In addition, because 'aggravation' of an injury is defined to include the 'recurrence' of that injury it is not necessary to show that the experience of an injury is increased or intensified. It will be sufficient if, as a result of activities undertaken in the course of employment, a previous injury occurs again whether or not the experience of it is at the same level of intensity as before.
"What Beattie also makes clear is that the symptom of an injury, that is the experience of the injury, is a part of the injury in respect of which compensation is payable. This proposition was confirmed by the Full Court in Commonwealth Banking Corporation v Percival (1988) 20 FCR 176 where it was said that while for many medical purposes it may be necessary to draw a distinction between the underlying injury and the symptoms of it that is not so for compensation law where it is fundamental that the symptom of an injury is a part of that injury.
"Pain is the most common symptom of an injury. If the pain arising from an underlying condition is aggravated, that is increased or intensified, as a result of an employee's employment then the employee will have suffered a compensable injury: Commonwealth Banking Corporation v Percival (1988) 20 FCR 176 at 179-180. The same is true if the pain caused by an underlying condition has dissipated but returns as a consequence of the activities that are undertaken during the course of an employee's employment: Canberra Abattoir Pty Ltd v Asioty (unreported, Full Court, Federal Court, 26 April 1988) a proposition which was not disturbed on appeal at (1989) 167 CLR 533.
"However, as was pointed out by the Full Court in Beattie, supra, at 378 per Evatt and Sheppard JJ:
'It does not follow in every case that a worker with a pre-existing injury, who carries out work and as a result suffers pain, will have suffered an aggravation of his injury. A worker whose fractured leg is encased in plaster will be unable to put it to the ground without suffering pain and other disability. But that is not a case of aggravation. In such a case any incapacity for work arises only by reason of the pre-existing injury.'
"This passage draws a very important and perhaps obvious distinction between the case of a worker who has a pre-existing injury that causes the worker to suffer pain whether or not the worker is at work and the case of a worker who has a pre-existing injury and it is the activities at work that cause the worker to suffer pain or to suffer pain more intensely. It is only in the latter case that it can be said that the worker has suffered an aggravation of his or her pre-existing injury.
…
"In that regard the Tribunal erred in law. That is to say, the Tribunal approached the case before it without giving the word 'injury' its proper and required meaning. It failed to have regard to the fact that part of its function was to determine whether the pain suffered by Mr Tippett (being a part of his injury) had been caused or aggravated by his employment."
Later, in Australian Postal Corporation v Bessey (2001) 32 AAR 508, the Federal Court (Gyles J) considered a case where the tribunal had purportedly applied Tippett's case (above) but the decision was overturned in this appeal. In this case the employee worked for Australia Post delivering mail riding on a step-through motor bike from 1989 to 1997. In 1997 he was given restricted duties excluding bike riding because of lower back pain. He was paid compensation for some months in respect of degenerative spondylosis but Australia Post decided that payments should cease. The tribunal set aside that decision. Gyles J said at pages 509-511:
"AGGRAVATION
"4 This ground of appeal raises, once again, the issue of compensation for the effect of work upon an underlying condition – in this case, spondylosis. Australia Post submits that the real issue in the case was whether the effect on the applicant from riding the motor bike was temporary, such that the discomfort it caused ceased either once or shortly after the time Mr Bessey ceased riding motor bikes as part of his duties on 3 February 1997. Australia Post submits that the Tribunal either never resolved this issue or resolved it in favour of Australia Post.
…
"6 It has been well settled by a series of decisions starting from Jordan CJ's judgment in Salisbury v Australian Iron & Steel Ltd (1943) 44 SR (NSW) 157, including Darling Island Stevedoring & Lighterage Co Ltd v Hankinson (1967) 117 CLR 19; Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533 and Casarotto v Australian Postal Commission (1989) 86 ALR 399, that if an underlying condition is aggravated, in the sense of been made worse, then any incapacity which results is compensable. On the other hand, if the aggravation is temporary, so that after a time it ceases to have any effect and leaves the underlying condition no worse, then there is no relevant continuing injury causing incapacity.
"7 In the present case, there is no relevant dispute that spondylosis is an ailment, and that when riding a motor bike for mail delivery the spondylosis causes the respondent to experience symptoms (principally pain) which make such work unsuitable so incapacitating the respondent.
"8 This would require compensation for the period when the symptoms were operative, but would not, without more, constitute continuing injury. To constitute continuing injury it would be necessary to go further and find that the work had adversely affected the underlying condition in some way which continued to have an effect. The mere fact that incapacity resulting from the spondylosis caused pain whilst working does not mean that the symptoms resulted from a work related injury (including aggravation) but rather resulted from the underlying condition.
…
"10 When the Tribunal's analysis of Australia Post's medico-legal consultants is taken into account it is apparent that, when dealing with spondylosis, the Tribunal misunderstood the nature of aggravation in the legislation. As appears from pars 25 to 33 of the reasons of the Tribunal, Dr Chen and Dr McGill made it quite clear that the bike riding, whilst increasing the symptom of pain whilst the activity took place (and to that extent aggravating the spondylosis) did not produce any permanent underlying change in the back which, after a very limited period, was as it had been with symptoms entirely related to constitutional degenerative change. If this were correct, the authorities to which I have referred establish that there would be no relevant aggravation of the underlying condition and no incapacity arising therefrom.
…
"12 From my consideration of pars 11, 39, and 40 of the reasons I conclude that the Tribunal acted on the view that the pain suffered by the respondent whilst riding the bike was an aggravation and, as that pain was incapacitating, there was therefore an entitlement to continuing compensation. This was an error of law. …"

The High Court decision, Asioty v Canberra Abattoir Pty Ltd (1989) 87 ALR 385 dealt with a different permutation. The employee had a skin condition which produced dermatitis on his hands. He worked as a slaughterman. He was absent ill from work when his doctor certified that his hands would be more likely to flare up again if he returned to work and the condition would then become more recalcitrant and difficult to treat. The legislation in issue was the ACT Workmen's Compensation Ordinance 1951 ("the Ordinance"). Section 9(1) of the Ordinance provided for compensation to be paid for incapacitating disease due to the nature of the employee's employment. Section 6(1) defined "disease" to include "the aggravation, acceleration or recurrence of a pre-existing disease". The employee was paid compensation. An issue then arose as to its continuance. An arbitrator awarded compensation for partial incapacity. The ACT Supreme Court, on appeal, held that the employee was totally incapacitated. The Federal Court of Australia held that compensation should cease. The High Court held that he could be regarded as totally incapacitated. In the course of the court's reasons, unanimously subscribed to by the five judges, Toohey J said at pages 389-390:
"While it is apparent that an aggravation of the appellant's underlying dermatitis may take the form of immediate incapacitating symptoms, the existence of some more permanent aggravation is not precluded because those symptoms abate on each occasion that the appellant ceases work. The proper conclusion is that the condition of the appellant's hands, with their now enhanced susceptibility to dermatitis, has intensified the disease from which the appellant suffers. This enhanced susceptibility constitutes an aggravation of the disease and, in the circumstances, falls within the language of the Ordinance.
…
"…there is no reason why a disease which produces susceptibility to some debilitating condition should not be regarded as aggravated when that susceptibility is heightened by a circumstance such as work of a particular type or in particular conditions. The Ordinance does not require an aggravation of the symptoms of a disease. …"
From these authorities the following propositions appear sound:
(a)Although it seems not to have been considered by a court, the reference in s 4(9)(b) to an incapacity to engage in work "at the same level" refers not to work paid at the same rate as the work an employee was doing immediately before the relevant injury, but to "the nature of the work in the sense of its characteristics, which will include its degree of difficulty" (Re Prica (above)).
(b)For the purposes of paragraph (c) of the definition of an "injury" in s 4(1) of the Act, an aggravation occurs when the experience of the injury for the employee is increased or intensified without any alteration to the underlying physical or mental condition (Tippett (above)).
(c)"If the pain arising from an underlying condition is aggravated, that is increased or intensified, as a result of an employee's employment then the employee will have suffered a compensable injury" (Tippett (above)).
(d)If the pain caused by an underlying condition has dissipated but returns as a consequence of the activities that are undertaken during the course of an employee's employment that will be a compensable injury (Tippett (above)).
(e)It must the employee's activities at work that cause him or her to suffer pain, or to suffer pain more intensely, if the employee is to receive compensation. Compensation is not payable if the employee would suffer the pain whether or not he or she was at work (Tippett (above)).
(f)The aggravation will be only temporary and will attract compensation only for the duration of the pain where the pain ceases after a time and leaves the underlying condition no worse than before (Bessey (above)).
(g)Where an employee experiences symptoms only when at work, but the employee has become more susceptible to a disease, eg dermatitis, because of his or her employment, that enhanced susceptibility constitutes an aggravation of the disease (Asioty (above)).
Mr Grey proceeded to address Mr Chapman's entitlement to incapacity payments. The formula in s 19(2) of the Act provides for the deduction of Mr Chapman's ability to earn from his normal weekly earnings. His ability to earn is "the amount per week … that he is able to earn in suitable employment". "Suitable employment" is defined in s 4(1) of the Act. Paragraph (a) of that definition applies as Mr Chapman was a permanent employee at the time of the injury and did not subsequently terminate that employment. For Mr Chapman, suitable employment is defined as employment by the licensed corporation in work for which Mr Chapman is suited having regard to:
(a)his age, experience, training, language and other skills;
(b)his suitability for rehabilitation or vocational training;
(c)the location of the work; and
(d)any other relevant matter.
Mr Grey then referred to the employer's obligations under s 40 of the Act. Section 40 is headed, "Duty to provide suitable employment". He argued that it is a duty of an employer to find, or help the employee to find, suitable employment during or after the employee completes a rehabilitation program. Mr Chapman engaged in rehabilitation (T30).
Mr Grey submitted that s 19(4)(a) and (g) of the Act should be applied in Mr Chapman's case as follows. His ability to earn is the amount per week he earns in the job sharing arrangement. If he works only three days he should be compensated for the loss of work for the other two working days in a week, work that he had available to him before the injury.
Mr Skinner submitted that the applicant has no incapacity at all. Mr Chapman said that he could work five days a week. Mr Skinner characterised Mr Grey's argument, in that he utilised s 40 of the Act, as suggesting that allowing an employee access to both compensation and rehabilitation causes s 40 to compel the employer to restore the employee to the same level of employment as before the injury. If this is not done, Mr Skinner said, Mr Grey would say that the employer has an obligation to pay the employee as if the employee is at that level. Mr Skinner submitted that this analysis is erroneous. He relied on the tribunal's decision in Re Gibson and Commonwealth (1985) 7 ALD 558 in which it was held that there is no obligation on an employer to find work for a partially incapacitated employee. However, in the case of a large employer such as Australia Post with a policy of assisting disabled persons, a failure to find work for an employee is strong evidence of the employee's inability to attract an employer and, hence, of his or her total incapacity. Conversely, if that employer offers suitable employment to an employee, that is strong evidence to displace any suggestion that he or she is totally incapacitated.
Mr Skinner submitted that in ex A3, where Dr Stabler said that Mr Chapman had generalised tendonopathy of the right elbow and that his problem was due to an inherent problem in his own body rather than excessive work, Dr Stabler was describing an egg-shell skull syndrome. He put to the tribunal that Mr Chapman had received compensation for the aggravation of an underlying condition and that the aggravation had passed. He relied on the principles expounded by Gyles J in Bessey (above). Mr Chapman's current job is as a postal delivery officer and there is no incapacity for that as such.
Mr Grey responded. He agreed that Mr Chapman had the allegorical egg-shell skull in that he was unusually susceptible to elbow injury. He had had an up front injury rather than an aggravation. Australia Post has not asked Mr Chapman to resume his old job. They recognise that he is susceptible to a recurrence of the injury if he returns to that work. Section 40 identifies where the duty lies to give Mr Chapman a suitable job.
tribunal consideration
Mr Grey correctly identified the basic legal steps to be negotiated. The first issue is whether Mr Chapman suffered an injury and, if so, whether that is a continuing injury. Clearly Mr Chapman suffered an injury on or before 23 October 1998, the date of lodgement of his compensation claim. Australia Post accepted that as the case and provided compensation coverage until 13 July 1999. However, the correct characterisation of that injury and its alleged continuing effect are matters of dispute.
The tribunal found Dr Stabler's evidence somewhat difficult to accept in full. He saw the applicant as suffering from lateral epicondylitis and considered that to be an ongoing, virtually permanent medical condition, albeit with periods of fluctuating intensity. In addition, he alone of the experts considered that he could see a point of ossification on a plain x-ray which, in his view, confirmed the diagnosis of lateral epicondylitis. In his oral evidence he contended that an orthopaedic surgeon is in a better position than a rheumatologist to diagnose such a condition as epicondylitis because of the surgical experience of operating on sites of pain. While this might, at face value, suggest that his assessment of lateral epicondylitis as a permanent condition forms the better view, it is significant that another orthopaedic surgeon, Dr Sweeney, who also diagnosed epicondylitis in late 1998 (T13) and saw it as attributable to his employment. He also saw it as a temporary phenomenon.
Indeed, for reasons that will be clear below, his report is quite telling. He saw the injury as an injury in the form of an aggravation of Mr Chapman's pre-existing condition. Unfortunately he says little about that pre-existing condition other than to say "there may be some degeneration pre-existing the causative effects of sorting mail" (T23/68). He wrote, "In my opinion, his work has aggravated his condition and I am uncertain when the effects of the work relation aggravation will cease" (T13/68). He saw the condition as "quite acute" in November 1998. He regarded that as a little unusual for epicondylitis and he thought that rest and the injection of cortisone in the extensor region would relieve the condition. He regarded Mr Chapman as partially incapacitated for work, in part on the basis of what Mr Chapman said he could still do despite the elbow complaint.
Dr Sweeney thought Mr Chapman would be partially incapacitated for approximately six months (ie until May 1999 or thereabouts). He thought that "Mr Chapman's symptoms should settle within 12 months" and that the "prognosis [was] good as this condition usually responds to treatment".
Dr Knight, a specialist in occupational medicine, diagnosed right lateral epicondylitis and spoke in terms of certain work requirements that would "provide a better background for the resolution of his right arm complaint" (T17/76). Thus, he considered the epicondylitis capable of resolution. He thought a six to eight months period reasonable (ie resolution by July to September 1999). Dr Weisz (ex A8) diagnosed work-caused right elbow epicondylitis which he saw as having some permanent effects. However, his report was disappointing in its failure to consider any pre-existing condition.
Dr Freeman had a somewhat unique theory as regards the diagnosis. Dr McGill thought that Mr Chapman may have had epicondylitis but that it had resolved. In this he was essentially part of a rather overwhelming majority of medical opinion.
The tribunal finds that the most likely diagnosis of Mr Chapman's injury in 1998 was right lateral epicondylitis. It finds that this was an injury, in accordance with paragraph (c) of the definition of "injury" in s 4(1) of the Act. That is to say, the tribunal finds on the balance of probabilities that Mr Chapman's condition was an aggravation of an underlying condition. Dr Stabler, in the tribunal's view, spoke convincingly of Mr Chapman's pre-existing tendonopathy which would have predisposed him to symptomatology if he engaged in certain work. The tribunal also notes the views of Dr Sweeney to the effect that certain work activities caused a flare up of epicondylitis and therefore aggravated a pre-existing underlying condition. Although counsel tended to present these as mutually exclusive explanations it is the tribunal's view that they can co-exist. It seems to the tribunal that the applicant suffered from a pre-existing condition, generalised tendonopathy (as Dr Stabler would have it) and/or some degeneration (as Dr Sweeney would have it) which was aggravated by the duties performed by Mr Chapman in the period up to 23 October 1998 and the tribunal finds that to be the situation.
The tribunal finds that the preponderance of the medical evidence supports the proposition that the effects of that aggravation ceased before the end of 1999. The only significant evidence to the contrary came from Dr Stabler and Dr Weisz who seemed to see the epicondylitis as having been aggravated to a level that is and will remain recurrent. There is also the applicant's evidence that his elbow has never been entirely free from pain since before October 1998. However, that pain is not, on his own evidence, disabling. He said a number of times that he is fit for full-time duty as a postal delivery officer provided the duties do not include second class mail sorting.
So far as Dr Stabler's opinion is concerned, the tribunal finds it to be inconsistent with the views of other eminent experts (other than Dr Weisz), including another orthopaedic surgeon, who considered Mr Chapman's condition to be remediable and controllable. While Dr Stabler has made a specialty of orthopaedic upper limb work that, of itself, is not sufficient to give a status to his opinions such as to render them preferable to the body of adverse opinion from others with relevant, if less confined, specialties. The difficulty with Dr Weisz's opinion is that he did not address any question of a pre-existing condition or susceptibility.
In the terms of the Federal Court's decision in Bessey (above), the tribunal finds that the proper characterisation of the applicant's aggravation injury is that it is symptomatic only to the extent that it affects his work ability when he is required to engage in second class mail sorting. It does not affect his capacity to do any other work. Further, the only evidence to suggest that an aggravation of this sort would worsen the underlying condition such that it could be taken to be an ongoing aggravation came from Dr Stabler. That again was very much a minority medical view which the tribunal has decided it cannot accept in the light of the contrary evidence which anticipated a complete resolution of the condition. Dr McGill would say that a complete resolution has in fact occurred.
The implications of the Bessey (above) decision are that Australia Post would be liable to compensate Mr Chapman in accordance with the Act in respect of injury if it should require him to engage in second class mail sorting and if he should suffer incapacitating symptoms from that work. However, at present Australia Post does not require Mr Chapman to engage in work that brings on symptoms of his underlying condition.
It is true that Australia Post has not given Mr Chapman work for as many hours a week as he was doing up to 23 October 1998. Can he be compensated by way of weekly incapacity payments for the loss of this work? He could be so compensated if the aggravation of the underlying condition had involved an ongoing deterioration in the underlying condition attributable to Australia Post. However, the tribunal has found this not to have occurred. There may be an argument that he is not able to work full hours doing all of the functions he could do before the October 1998 injury. In accordance with the Prica decision (above) that would suggest that he is incapacitated for work under s 4(9) of the Act. Indeed, he could be so regarded on either of the interpretations discussed in that case. He might possibly be so regarded because he earns less money than before the injury. He might possibly also be so regarded because he cannot do a job with the same characteristics as the job he had before October 1998.
The tribunal finds that these arguments are not sufficient to bring s 4(9) into play. The tribunal has effectively found that he has no ongoing work-related injury sufficient to satisfy the preconditions in s 19(1) of the Act which relate to qualification for incapacity payments. Mr Chapman, because of his pre-existing medical status, was probably never fit for full-time duties involving second class mail sorting. Had this been known to Australia Post before he was given such duties Australia Post should not have required him to do that work. Australia Post may or may not have given him full-time work without including second class mail sorting. However, there is no evidence on that point. It is merely possible. He is now in the same position as he would have been had Australia Post been aware of his occupational health status. Australia Post did not know of Mr Chapman's problem. It gave him full-time duties, some of which were inappropriate in hindsight. He suffered temporary aggravation as a result. He was compensated for that. It is now a matter for Australia Post management to make decisions, in co-operation with Mr Chapman, regarding the work he should do in view of the consistently present underlying condition.
Section 40, in the tribunal's view, does not impose a strict, affirmative obligation on an employer to provide full-time work to an employee such as Mr Chapman. It requires the provision of suitable employment as defined in s 4(1) of the Act. Australia Post appears to have done that. It has accorded him rehabilitation. It has given him work which he accepts is within his medical and other capacities. While he is earning less than he did in 1998 the only basis for compensation in that respect, s 19(1) of the Act, does not apply because he does not have a work-related injury causing an incapacity for work.
CONCLUSION
The tribunal has found that the applicant is working fewer hours each week than he did on average before his injury in 1998. The tribunal accepts that this means that his take home pay is less than it was before the 1998 injury. The tribunal has considered whether the applicant qualifies for ongoing incapacity payments as a result of his injury in 1998. The tribunal has found that he does not because he has no ongoing work-related injury. Such an injury is one of the essential preconditions in s 19(1) of the Act before incapacity payments can be made. The tribunal's findings mean also that there is no obligation under s 14(1) to compensate Mr Chapman in respect of medical expenses or any other head of compensation.
DECISION
The tribunal affirms the decision under review. The applicant is not entitled to costs in respect of this application.
I certify that the 96 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella
Senior Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  8 and 10 May 2001
Date of Decision  28 May 2002
Counsel for the Applicant        Mr L T Grey
Solicitor for the Applicant         Carroll & O'Dea, Solicitors
Counsel for the Respondent    Mr B Skinner
Solicitor for the Respondent    Graham Jones Lawyers