Jamandilovski, v Telstra Corporation Ltd

[1994] FCA 1012

VLADIMIR JAMANDILOVSKI v. TELSTRA CORPORATION LIMITED
No. NG22 of 1994
FED No. 1012/94
Number of pages - 20
Administrative Law - Practice and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
LINDGREN J

CATCHWORDS

Administrative Law - appeal from decision of the Administrative Appeals Tribunal - adequacy of reasons for decision of the Administrative Appeals Tribunal - whether findings supported by medical evidence - preference of one medical expert's evidence over that of another - whether the Administrative Appeals Tribunal discharged its obligations under s 43 of the Administrative Appeals Tribunal Act 1975.

Practice And Procedure - extension of time for the institution of an appeal under s 44 of the Administrative Appeals Tribunal Act 1975.

Administrative Appeals Tribunal Act 1975 ss 43, 44.

HEARING

SYDNEY, 13 October 1994
#DATE 21:12:1994

Mr D J Higgs of counsel instructed by I S P Law appeared for the applicant.

Mr P S Jones of counsel instructed by Hunt and Hunt appeared for the respondent.

ORDER

THE COURT ORDERS:
1. THAT the time allowed by sub-section 44 (2A) of the Administrative Appeals Tribunal Act 1975 (Cth) for the applicant to appeal to this Court under sub-section 44 (1) of that Act from the decision given on 8 December 1993 in the General Administrative Division of the Administrative Appeals Tribunal constituted by M T Lewis (Senior Member), J D Campbell (Member) and I R Way (Member) in proceedings N92/325, be extended to 19 January 1994.
2. THAT the application be dismissed.
3. THAT the applicant pay the respondent's costs.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

NATURE OF PROCEEDINGS
LINDGREN J The applicant appeals pursuant to sub-section 44 (1) of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") from a decision of the Administrative Appeals Tribunal ("the AAT") in its General Administrative Division given on 8 December 1993. That decision affirmed decisions of the delegate of his then employer, the Australian Telecommunications Corporation, the predecessor of the respondent, on 5 October 1989 and 28 January 1992. Those decisions had themselves been affirmed on reconsideration on 30 April 1992. The applicant had applied to his employer, for compensation in respect of an alleged back injury suffered by him on 6 April 1989 and an alleged repetitive strain injury to his left shoulder and neck culminating in the making of a claim on 18 October 1991. The delegate had determined that the employer was not liable to pay compensation in respect of the back injury on and from 27 July 1989 and was not liable to pay compensation in respect of the repetitive strain injury at all.

1. It was not disputed on the hearing of the appeal that, as the AAT had said, the Safety Rehabilitation and Compensation Act 1988 ("the SR and C Act") applied. Sub-section 4 (1) of the SR and C Act defined "injury" compensable under that Act as follows:
   

" ........ ........ ........ ........ ........ ........ .

(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;.

........ ........ ........ ........ ........ ........ . "

EXTENSION OF TIME
3. Sub-section 44 (2A) of the AAT Act provides that an appeal under sub-section 44 (1) to the Court must be instituted not later than the twenty eighth day after the day on which a document setting out the terms of the AAT's decision is furnished to the party aggrieved or within such further time as the Court allows. In the present case, the appeal was instituted by the filing of a notice of appeal on 19 January 1994. This was outside the 28 day period. In its written submissions, the respondent addressed this matter, contending that the time for institution of the appeal should not be extended, and referred to the summary of the principles governing the exercise of the Court's discretion given by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (FCA/Wilcox J) at 348-349. In particular, the respondent submitted that no reasons for the delay had been suggested in the applicant's submissions. Counsel for the applicant frankly conceded that the matter had been overlooked.

1. It then came to light that there had been filed with the notice of appeal on 19 January 1994 an affidavit of the applicant's solicitor, Gloria Kathleen Rossini, sworn 18 January 1994, in which she deposed to the fact that she had been instructed by the applicant to seek an extension of the time specified in sub-section 44 (2A) for the filing and service of the notice of appeal. Paragraph 6 of Ms Rossini's affidavit was as follows:
   

"The decision of the Administrative Appeals Tribunal was given on 8th December, 1993. The Applicant was notified of the decision by his previous solicitors on or about 24th December 1993. Because of the delay in being notified of the Tribunal's decision by his previous solicitors and the Christmas period the Applicant was unable to obtain further legal advice and instruct solicitors to prepare and file and serve the Notice of Appeal within the 28 day period from 8th December, 1993."

1. Although the respondent continued to oppose the making of an order extending the time for the filing of the notice of appeal, my impression was that following the reading of the affidavit the submission was no longer strongly pressed.

2. On any reckoning the extent of the untimeliness was not great. The applicant showed what was in my opinion an acceptable explanation of the delay. No relevant prejudice to the respondent was shown to exist. The applicant had, at the outset, given notice of his intention to apply for an order extending time and had at the same time put on affidavit evidence in support. So far as the evidence revealed, the respondent did not, prior to service of its submissions on the appeal, give notice that the granting of an extension of time would be opposed. Ms Rossini was not cross-examined on her affidavit and there was no evidence led by the respondent in relation to the issue. Both parties came to Court prepared to argue the appeal. The grounds of appeal set out in the notice of appeal appeared to me to be reasonably arguable.

3. For all these reasons, I was satisfied that it was fair and equitable to extend the time for appealing, and indicated that I proposed to make an order extending the time for the filing of the notice of appeal to the date on which it was in fact filed, namely 19 January 1994.

AMENDED NOTICE OF APPEAL
8. In the course of the hearing I granted leave to the applicant to file an amended notice of appeal. The grounds of appeal which were pressed were as follows:

"(i) The evidence and reasons found in the Tribunal's decision do not support the finding that the Applicant's back injury resolved by 27th July, 1989;

(ii) The evidence and reasons found in the decision of the Tribunal do not support the finding that the Applicant's neck and left shoulder condition was not work related;

(iii) (not pressed).

(iv) That in preferring the evidence of Dr Lyons to the Applicant's medical evidence the Tribunal misdirected itself as to the weight of Dr Lyons' evidence.

(v) That in rejecting the opinion of Dr Maxwell the Tribunal misconceived the nature of the doctor's evidence or proceeded on a mistaken view of that evidence and misdirected itself as to the weight to be given to that evidence.

(vi) (not pressed).

(vii) In expressing its findings with respect to the Appellant's (sic) back injury having resolved on or by 27 July, 1989 the Tribunal did not satisfy its obligations under s 43 (2B) of the Administrative Appeals Tribunal Act by including its findings on material questions of fact and referring to the evidence and/or other material on which those findings were based.

(viii) With respect to its findings concerning the Appellant's

(sic) alleged neck and left shoulder problems the Tribunal failed to discharge its obligation under s 43

(2B) of the Act by including findings of material questions of fact and referring to the evidence and/or other material upon which those findings were based."

1. Grounds (i) and (vii)related to the back injury on 6 April 1989, and grounds (ii), (iv), (v) and (viii) related to the repetitive strain injury to the left shoulder and neck.

FACTS
Facts relating to back injury on 6 April 1989
10. In the course of his employment by the respondent, on 6 April 1989 the applicant was struck by a lift door which closed on him when he was entering the lift on the ground floor of the Pitt Street Exchange building in which he was responsible for cleaning the seventh and eighth floors. On the same day the applicant reported the matter to his employer and made a claim for compensation, describing the injury as follows:

"ENTERING LIFT NO 1 WHEN DOORS CLOSED SANDWICHING BODY BETWEEN DOORS INJURING LOWER BACK. LIFT WAS IN BASEMENT AT TIME".

1. He saw his local general practitioner, Dr Francis T W Chung on 6 April. Dr Chung gave him a certificate of that date to the effect that the applicant had suffered "soft tissue injury to (L) chest wall" and recommended "x-rays of chest and (L) ribs". In his accident report dated 6 April 1989, the applicant gave the "type of injury" as "sprained back" and indicated the "part of body injured" as being the "lower back". In a "CLAIM FOR COMPENSATION" form which bears no date but which was apparently lodged with his employer on or about 6 April 1989, the applicant referred to the injury as having been to his "lower back". Dr Chung issued certificates arising out of his successive examinations of the applicant and certified that the applicant was unfit to resume work for the several successive periods the subject of those certificates. Dr Chung's final certificate dated 5 May 1989 certified that the applicant was unfit for work until 12 May 1989 "unless there is light duties and if so, he can commence light duties on 8/5/89".

2. The respondent accepted liability to pay compensation in respect of the lower back injury from 6 April 1989 to 14 April 1989 and from 24 April 1989 to 12 May 1989.

3. The applicant was x-rayed by Dr J S Ballenden on 6 July 1989 and was examined by Dr Munro S Alexander for the respondent on 27 July 1989. The following "DIAGNOSIS AND OPINION" in Dr Alexander's report dated 27 July 1989 featured centrally in the case:
   

"DIAGNOSIS AND OPINION

As a result of my examination today I can find no orthopaedic impairment. Following the incident of 6/4/89 he may have had some minor contusion or musculo ligamentous strain involving the lower lumbar region and the left sacro iliac area. I believe it would be reasonable to assume the (sic) this would return to normal within three weeks when he returned to work.

I do not believe that he has had any permanent injury as a result of this incident. There is certainly not any need for any rehabilitation.

On the balance of probabilities, I believe he did suffer from some musculo ligamentous strain of the lumbar region and left sacro iliac region as a result of the incident of 6/4/89 but the effects of this has (sic) now ceased.

No further investigations or treatment are indicated."

1. The applicant took various periods off work for which the respondent denied liability to pay compensation. The denial was on the basis that any disability arising from the event of 6 April 1989 had ceased.

2. As noted later, the AAT preferred the evidence of Dr Alexander to other evidence in relation to the lift incident on 6 April 1989. The issues on the appeal in relation to that incident were whether Dr Alexander's evidence could properly support the conclusion that the applicant's back injury had resolved by 27 July 1989, the date of Dr Alexander's report, and whether the AAT had discharged the obligation imposed on it by sub-sections 43 (2) and (2B) of the AAT Act.

Facts relating to repetitive strain injury to left shoulder and neck culminating in the making of a claim on 18 October 1991
16. The second "incident" is alleged by the applicant to have occurred prior to 17 October 1991. The applicant lodged with his employer a medical certificate from Dr Tulevski dated 17 October 1991 which stated that a "painful L neck, shoulder and elbow" of which the applicant was complaining was due to "overuse at work (Repetitive strain in the course of his work)." This was the subject of an "Accident Report" and "Claim for Compensation" both dated 18 October 1991. The Accident Report, in response to the entry "DESCRIBE THE INCIDENT", said:

"Repeated use of cleaning equipment over a period of time has caused sore left shoulder and neck pain.... First reported to supervisory staff on 6/9/91".

1. No doubt it was for this reason that the injury was sometimes referred to as having occurred in September 1991 or even on 6 September 1991.

2. The Claim for Compensation referred to the "part of body effected" as "left arm and shoulder and neck", and against an entry for the cause, said:
   

"Repeated use of cleaning equipment has caused pain in shoulder and neck".

1. The applicant had various periods off work in the remainder of 1991 and in January 1992. He returned to work on 17 February 1992 on selected duties and his workload gradually increased. He ceased work on 7 April 1992 because of continuing neck, shoulder and arm problems and has not returned to work since then.

2. The AAT heard evidence about the nature of the applicant's work as a cleaner, and in particular in relation to the use by him of a vacuum cleaner and an electric polishing machine. There was evidence from Oscar Troche, who was responsible for building services and was the applicant's immediate supervisor, to the effect that the polishing work was not physically demanding. Mr Troche demonstrated the operation of the polisher to the AAT which recorded that "(i)ts use appeared to the Tribunal to be without apparent effort on the part of the operator". There was video film evidence of the applicant's using a spade and a garden hose on 2 January 1993 and of his carrying a box containing Christening clothes and nursing an infant at a Christening on 1 March 1993.

3. As well, there was substantial medical evidence, including evidence from Dr W J Lyons and Dr C M Maxwell referred to in the grounds of appeal. The applicant was referred to Dr Maxwell in about March 1992 and he provided numerous certificates and reports beginning with a certificate dated 23 March 1992 and ending with a report dated 18 February 1993. Dr Maxwell's first report was dated 26 March 1992. In that report he recorded the history given to him by the applicant on 23 March 1992 of soreness in the left arm and left side of the neck and the little finger side of the left forearm, developing from August 1991. He diagnosed the applicant as suffering from "cervical intervertebral disc lesion with nerve root paraesthesia left arm" and "left sub acromial bursitis" and expressed the opinion that aggravation at work seemed probable. From mid-1992 into 1993 the applicant's condition worsened. In his oral evidence Dr Maxwell expressed the opinion that the applicant's neck and shoulder problems "...could have been initiated and were probably aggravated by the work he was doing..." (Transcript 167, AB 169). In cross-examination he said that in writing his reports and reaching his conclusions he had understood that the applicant had been using a heavy polisher which vibrated badly and took quite a bit of effort to push around (Transcript 170, AB 172). As will appear later, this was, in the light of the AAT's findings, a significant misunderstanding of the true position. He said that in his view the applicant was unfit for work and that the use of the industrial polisher would probably aggravate the shoulder condition.

4. Dr Lyons, orthopaedic surgeon, gave reports dated 28 September 1992 and 23 October 1992. In his first report (AB 500-503) Dr Lyons referred to anomalies arising out of the history given to him by the applicant and the records of which he was aware. He said that he found the applicant "a most unreliable witness". He summarised his opinion as to the nature and cause of the condition of which the applicant complained as follows:
   

"Overall, I find the situation most confusing. The man presents at this time with symptoms suggesting some nerve root irritation from a possible strain in his neck with associated mild symptoms of a left supra-spinatus tendinitis (sic), possibly precipitated by the former. When I examined him, I thought that his presentation was grossly exaggerated particularly in regard to his neck when he would demonstrate only about one-third the normal range of neck movements, and yet in conversation his neck moved quite freely, particularly as he twisted and turned his head relating to the interpreter. He has to be assessed largely on his symptoms and at the present time, I consider that he has some symptoms in his left shoulder area related to a mild supra-spinatus tendinitis (sic). I do not believe that he has major symptoms associated with his neck. Such a condition can come on spontaneously or may be produced by some strain or direct injury to the rotator cuff region and any assessment of aetiology depends very largely on the history. The incident supposedly causing his neck/arm pain when I examined him, the lift door closing incident, would not in my opinion produce such a condition. As noted above, various consultants have obtained completely different histories of symptoms coming on more recently but not directly related to any particular episode at work. His general cleaning activities are not particularly prone to produce a supra-spinatus tendinitis

(sic) although if he had extensive overhead work to do, such might be so. I personally could not obtain any significant history of any incident or incidents which might precipitate a supra-spinatus tendinitis (sic). I further opine that this tendinitis (sic) is quite mild in degree and I consider that he exaggerates his presentation when being examined but I could not deny that he may have some continuing shoulder discomfort." (AB 502, quoted in AAT's Determination at AB 552-553)

1. The solicitor for the respondent provided to Dr Lyons a file which led to the doctor's providing a short supplementary report dated 23 October 1992 in which he said his opinion remained unchanged. In particular, his report dated 23 October 1992 concluded as follows:
   

"Having read the assessment of the work required of him cleaning, in my opinion he was fit for such work when I examined him on the 21st September, 1992, although I would accept that he may have some mild symptoms in his left shoulder." (AB 504)

1. At the hearing before the AAT, Dr Lyons was asked whether, assuming that the applicant did have the limitations of movement and pain which had been referred to and that he did have "a mild supraspinatus tendonitis", he saw this as being "such that would prevent him from carrying out work". To this Dr Lyons replied as follows:
   

"I didn't think so. I didn't think his tendonitis was anywhere near as severe as he said - no, I won't say he said, as he indicated. A person who has significant restriction of shoulder movements for a prolonged period from real pathology will inevitably show wasting of certain muscles around the shoulder girdle which he entirely failed to show. I accepted that he had some pain. It was of the description of the type that I would say was of supraspinatus tendonitis but I didn't think it was very severe. If indeed my observations were true, then such a patient would have difficulty in work where there was prolonged overhead work but tendonitis doesn't cause appreciable problems working below one's height, in other words, working at a bench or down to the ground. In other words, if the arms are downwards relative to the shoulders such a condition doesn't cause significant problems. Now, there may be some cleaning jobs with prolonged overhead work that he might have difficulty doing but otherwise I thought that he could do the job". (Transcript 182, AB 184)

1. Dr Lyons said that in a situation where work was an aggravating factor in a condition, he would expect an improvement after the person stopped working, and that if the condition worsened after the person stopped working, it was most "unlikely" that work had been an aggravating factor (Transcript 185, AB 187).

2. Finally, in response to a description of the normal duties carried out by the applicant, Dr Lyons expressed the opinion that the activities described would not be likely to produce any sort of injury, that his diagnosis was that the applicant had degenerative changes in his neck which produced the so- called shoulder/arm pain or referred pain down the arm, and that the only possible aggravation attributable to work would be work involving the lifting of the applicant's arm up above the horizontal, such as prolonged polishing of mirrors above the level of the head (Transcript 188, AB 190). He said (Transcript 190, AB 192, quoted in AAT's decision at AB 554):
   

"Supraspinatus tendonitis arises in many people spontaneously and that is the commonest, if I can say, cause: it just happens. It can arise with an acute injury, a fall on the shoulder, and it can sometimes be produced if a cervical condition is causing pain down the arm. I'm not quite sure how or why but it does. The commonest mechanism is that it's spontaneous in middle age. Yes, so in not completely eliminating the possibility that his work could bring on the condition, you would accept that the possibility that his condition might be brought on by the need to stretch and use force at a distance away from his body with left arm?---Only if that force is major and it is repeated and it is prolonged."

1. In relation to the possibility of work aggravating supraspinatus tendonitis, the evidence of Dr Lyons before the AAT included the following:
   

"If he has symptoms which represent pathology and he does prolonged work with his arms certainly from the horizontal upwards, yes, that possibly could aggravate his symptoms or delay his recovery or both.

But even from the horizontal downwards, there is the possibility of aggravation, is there not?---Well, it rapidly - it exponentially diminishes as the angle, if you wish, below horizontal. In other words, there's probably some effect from 60 degrees onwards. I don't think we can accurately say at any point, but it's got to be a significant degree of abduction or

(sic) arm from the side. I would say roughly 60 degrees onwards before shoulder action becomes significant, in other words there's major work to be done by this supraspinutis (sic) mechanism. And if there was a need for the person to move the arm backwards and forwards, that would place additional pressure on the tendon itself?---No, not really. It's the degree of elevation that the shoulder has to maintain that's the aggravating factor." (Transcript 191, AB 193, quoted in AAT's decision at AB 554-555).

1. In relation to the alleged repetitive strain injury to the left shoulder and neck, the issues on the appeal were whether there was evidence entitling the AAT to find that the left shoulder and neck condition was not work-related; whether the AAT made an error of law in preferring Dr Lyons or in rejecting Dr Maxwell; and whether the AAT had not discharged the obligations imposed on it by sub-sections 43 (2) and (2B) of the AAT Act.

AAT's FINDINGS
29. The AAT's Reasons for Decision occupy 37 pages divided into 89 numbered paragraphs. Paragraphs 1 and 3 give an account of the decisions in respect of which review was sought. Paragraphs 4 and 5 noted that in addition to the documents provided under s 37 of the AAT Act, the AAT had been provided with additional documents in that, for example, the applicant had tendered ten medical reports and the respondent had tendered three, in addition to those provided under s 37. Paragraphs 6-39 gave an account of the lay evidence and paras 40-67 of the medical evidence. Paragraph 68 gave a brief account of the legislation. Then in paras 70-72 the AAT dealt with the lift door incident and in paras 73-89 it dealt with the repetitive strain injury claim.

AAT's findings in relation to back injury on 6 April 1989
30. The AAT's conclusion in relation to the back injury on 6 April 1989 were expressed in paras 71 and 72 of the AAT's Reasons for Decision. Those paragraphs are as follows:

"71 Based on the available medical evidence before it, the Tribunal prefers the evidence of Dr Alexander in relation to the effects of the lift incident in April 1989. His conclusions are based on the available evidence, including radiological evidence that there was no problem with the lumbo-sacral spine and only minor mid thoracic kyphoscoliosis (Dr Ballenden, T24, p 48). Dr Thomson's conclusions support Dr Alexander's findings, and we note that the Applicant's general practitioner at the time, Dr Chung, certified that the Applicant was unfit for work until 12 May 1989 due to his chest injury - there is no mention of a back problem (see T23, pbb). In relation to his back, the evidence from the Applicant was that he had extreme restriction in the movement of his back, although this did vary from time to time (see transcript p 94). The video evidence contradicted this assertion, both at the Christening and in respect of the spade work at the front of his house.

72 The Tribunal finds that any back injury suffered by the Applicant as a result of the work accident on 6 April 1989 had resolved by 27 July 1989, the date on which Dr Alexander certified that he was fit to work. We also note that he continued to work for about two years before the next 'injury' arose. We find that any ongoing symptoms the Applicant may suffer are due to degenerative changes and not to his employment."

1. AAT's findings in relation to repetitive strain to left shoulder and neck culminating in the making of a claim on 18 October 1991

2. The applicant attacked those parts of the AAT's reasoning in relation to this second part of the case found in paras 79, 80, 81, 84 and 89 of the Reasons for Decision which were as follows:
   

"79 The weight of the medical evidence supports a finding that the Applicant's left shoulder, neck and arm conditions do not arise out of his employment, nor were they aggravated by his employment. We have given greatest weight to the views of Dr Lyons, whose opinion regarding supraspinatus tendonitis were particularly helpful. We found Dr Lyons' views to be supported by the bulk of the clinical findings and by the para-medical evidence of Ms Arnheim (occupational therapist and Ms Cooper (physiotherapist).

80 Dr Lyons was willing to accept that the Applicant had some minor restriction of the left shoulder, and we found his evidence regarding the spontaneous cause of such a condition convincing. We note that Dr Podgorski, in December 1991, found there was possible musculo-ligamentous strain to his trapezius and levator scapulae, but in his view that condition should have resolved in a short space of time. Dr Lyons considered the Applicant had no major symptoms associated with the neck. In March 1992, Ms Cooper reported that the Applicant was performing light duties without exacerbation (T83, p 145).

81 In reaching our conclusions, we gave no weight to the view of Dr Thomson, who had no specialist qualifications. Counsel for the Applicant submitted that a reading of Dr Thomson's reports reflects him acting as an advocate rather than a doctor qualified to give an objective opinion (transcript p 254). The Tribunal has some concerns in relation to the general tenor of Dr Thomson's reports which contained expressions and phrases which did not accord with the provision of objective opinion.

........ ........ ........ ........ ........ ........ ..... 84 The Respondent submitted that almost all the medical opinions which linked his left neck, shoulder and arm conditions to the Applicant's work implicitly assumed the Applicant was doing relatively heavy physical work and in particular the use of the polisher was considered an important factor. We agree that, on the basis of the evidence, the use of the polisher itself was not a task which could be described as heavy physical work, nor was it difficult to operate. We accept Dr Lyons as a credible, objective witness and accept his diagnosis of supraspinatus tendonitis. He gave the Applicant the benefit of some considerable doubt and gave credible evidence as to the aetiology of the condition and restrictions which the condition may place on the Applicant. We accept his evidence that, assuming it is supraspinatus tendonitis, it is not linked with his work. ........ ........ ........ ........ ........ ........ ..... 89 On the basis of all the evidence before us, we find that any condition the Applicant may suffer in respect of the neck and left shoulder and arm did not arise out of, or in the course of his employment, nor was the condition aggravated by his employment. We prefer the medical opinion of Dr Lyons in relation to the Applicant's current condition and aetiology of that medical condition. The Tribunal therefore affirms the decisions under review."

SUBMISSIONS
Applicant's submissions on appeal relating to back injury on 6 April 1989
33. The applicant attacked paras 71 and 72 of the AAT's Reasons for Decision quoted above. The applicant conceded (Transcript 3.07-3.10) that the AAT was entitled to prefer, as it did, the evidence of Dr Alexander (whose evidence was found in a report dated 27 July 1989 - he did not give oral evidence) over other medical evidence with respect to the accident on 6 April 1989. In view of the applicant's second submission noted below, I understand this concession to be no more than a concession that as a general proposition the AAT was entitled to prefer one expert against another, and not as precluding a submission that the preferring was vulnerable to attack where the reasons given for it were fallacious, or a submission that the AAT was obliged to give reasons in conformity with sub-sections 43 (2) and (2B) in relation to the preferring of one expert against another.

1. The applicant made three submissions.
   

(1) The applicant's first submission was that para 72 of the AAT's determination involved an error of law in that it shows that the AAT avoided making positive findings as to whether there was an injury on 6 April 1989, and whether there was any ongoing disability. The submission was that whereas Dr Alexander had said in his diagnosis and opinion (a) that there probably was an injury on 6 April 1989 but (b) that the applicant had no incapacity when the doctor examined him on 27 July 1989, the AAT fell into error by purporting to accept Dr Alexander without making findings corresponding to those two opinions of his.

The applicant submitted that the AAT did not find that on 27 July 1989 he was in fact free of ongoing symptoms and submitted that the AAT referred to the possible existence of ongoing symptoms as at that date, and that therefore Dr Alexander's evidence was rendered inapplicable. The point was made in oral submissions in this way:

"... (T)here is not one whit of evidence from Dr Alexander as to what his opinion would have been had his findings on 27 July 1989 been that in fact this man did have a disability" (Transcript 4.17-4.19).

And according to the submission, it was consistent with the AAT's reasons that the applicant did have a disability as at 27 July 1989.

(2) The applicant's second submission was that the reasons given by the AAT in para 71 for preferring Dr Alexander's evidence were not sustainable for the following reasons:

(a) The AAT said that Dr Thomson's conclusions supported Dr Alexander's findings, yet the AAT said (in para 81 of its Reasons) that it "gave no weight to the view of Dr Thomson, who had no specialist qualifications";

(b) the AAT said that Dr Chung supported Dr Alexander, yet Dr Chung certified that the applicant was not fit due to "chest" rather than "back" problems, and as a matter of logic this did not support Dr Alexander;

(c) the AAT relied upon "the video evidence", yet the videos were taken some three and four years after Dr Alexander's examination and report in July 1989, one video having been taken on 22 October 1992 and the other on 1 March 1993.

(3) Thirdly, in the alternative to submitting that the AAT had disclosed an illogical reasoning process for preferring Dr Alexander, the applicant submitted that it had failed to comply with the requirement of sub-sections 43 (2) and (2B) of the AAT Act which are as follows:

"43(2) Subject to this section and to sections 35 and 36D (not presently relevant), the Tribunal shall give reasons either orally or in writing for its decision.

(2A) ........ ........ ........ ........ ........ .......

(2B) Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based."

1. On the necessity of the AAT's disclosing its reasoning process, the applicant referred to Australian Postal Corporation v Lucas (1991) 33 FCR 101 (FCA/Burchett J) at 109, Copper Art Pty Ltd v Commissioner of Taxation of the Commonwealth of Australia (1993) 30 ALD 377 (FCA/Hill J) and Australian Postal Commission v Idriss (1992) 26 ALD 257 (FCA/Foster J).

2. Although it gives an inadequate account of the respondent's submissions, it suffices to say that the respondent submitted that the applicant's submissions wrongly characterised what were truly criticisms of factual findings as errors of law. Applicant's submissions on appeal relating to repetitive strain injury to left shoulder and neck culminating in the making of a claim on 18 October 1991
   

3. The AAT found (AAT's Reasons for Decision, para 75, AB 558) that the lift incident of April 1989 did not contribute to the left shoulder, neck and arm problems. The applicant did not challenge this finding before me (Transcript 2.20).

4. Again, the applicant made three submissions.
   

(1) First, the applicant submitted that the AAT's preference for the evidence of Dr Lyons (who provided two reports and gave oral evidence) involved an error of law because the AAT gave as one reason for accepting him the fact that he was supported by the physiotherapist, Ms Kerry Cooper, whereas in truth she said (AB 458) that there was no evidence of, inter alia, supraspinatus tendonitis and Dr Lyons said that there was.

(2) Secondly, the applicant submitted that in accepting Dr Lyons' diagnosis of "supraspinatus tendonitis" the AAT should not have rejected Dr Maxwell's diagnosis of suba crominal bursitis, because the two conditions are one and the same thing, or one is a more precise description of the other or a description of an aspect of the other.

(3) Thirdly, the applicant again submitted in the alternative that the AAT had failed to comply with sub-sections 43 (2) and (2B) of the AAT Act and cited authorities (see pages 21-22 above).

1. Again, although it does less than justice to the respondent's submissions, it suffices to say that the respondent submitted that the applicant's submissions wrongly characterised criticisms of factual findings as errors of law.

REASONS
Reasons relating to back injury on 6 April 1989
40. It is convenient to deal with the applicant's three submissions in sequence.

(1) In my opinion, the proper construction of the "DIAGNOSIS AND OPINION" of Dr Alexander is to the following effect:

(a) He could find as at 27 July 1989 no orthopaedic impairment (deformity or defect of the bones, joints or muscles or otherwise of the skeletal system);

(b) he could not deny that the applicant may have suffered minor contusion or musculo ligamentous strain on 6 April 1989;

(c) if so, it would be reasonable to assume that there would be a return to normality within three weeks, that is to say, by 27 April 1989, well before the applicant returned to work in mid May;

(d) his opinion was that the applicant had not suffered any permanent injury (injury having a permanent effect);

(e) he believed that probably the applicant had suffered some musculo ligamentous strain of the lumbar region and left sacro iliac region;

(f) he believed that the effects of (e) had ceased by 27 July 1989 when he saw the applicant.

The AAT's reference in para 72 to "any back injury suffered by the applicant as a result of the work accident on 6 April 1989" was squarely in line with Dr Alexander's reference to (a) the possibility that the applicant had had some "minor contusion or musculo ligamentous strain involving the lower lumbar region and the left sacro iliac area", and (b) the probability that the applicant had suffered from "some musculo ligamentous strain of the lumbar region and left sacro iliac region" which had resolved. The issue before the AAT was not whether the applicant had suffered a compensable injury on 6 April 1989 (the employer had accepted that he had) but whether there was ongoing disability on and from 27 July 1989. The AAT's critical finding was that any such injury "had resolved by 27 July 1989". This conformed to Dr Alexander's report. It is not correct to say, as the applicant submitted, that the AAT avoided a finding as to whether there was any ongoing disability as at 27 July 1989. The AAT's reference to "any ongoing symptoms the applicant may (present tense) suffer" is not a finding that he was or may have been suffering symptoms on 27 July 1989, and is therefore not inconsistent with of Dr Alexander's report.

It is consistent with the AAT's finding in para 72 of its Reasons for Decision that any symptoms attributable to the back injury on 6 April 1989 had resolved by 27 July 1989 to add that any ongoing symptoms which the applicant may (present tense) suffer, which might otherwise be thought to be attributable to the back injury, are due to degenerative changes and not to his employment. The impugned final sentence of para 72 of the AAT's Reasons for Decision must be read in context. In the preceding sentence, the AAT had noted that the applicant had worked for two years (from mid May 1989 to September/October 1991) "before the next 'injury' arose". This shows that the reference in the final sentence to "any ongoing symptoms the applicant may suffer" is a reference to any symptoms experienced by the applicant long after 27 July 1989.

(2) The second and third submissions relating to the back injury, like all three submissions relating to the repetitive strain injury, raise questions as to the adequacy of the AAT's stated reasons for preferring the evidence of one witness to that of another. The AAT stated certain matters in support of its preference for Dr Munro S Alexander as against other medical experts touching on the back injury. In relation to the repetitive strain injury, the AAT referred to certain matters in support of its preference for Dr Lyons as against Dr Maxwell. In summary, the applicant submitted that in each case, upon analysis, the stated grounds for the AAT's preference could not support that preference, alternatively that the AAT did not, in relation to the preferring of one witness against others, comply with sub-sections 43 (2) and/or (2B) of the AAT Act.

Where there is a conflict, so many factors may lead to the preferring of one witness as against another that some caution must be exercised before the preference of the tribunal of fact is held not to be supportable. In the first place, oral evidence must be distinguished from written evidence, in that the Tribunal's observations of the witnesses may play a part. In the present case, none of the experts and professionals relevant to the alleged back injury on 6 April 1989 gave oral evidence. Accordingly, the AAT's preferring of Dr Munro S Alexander could only be based upon their written expert evidence and the lay evidence, including the two videos, in so far as they might prove to be relevant. In relation to the alleged repetitive strain injury to the left shoulder and neck however, Doctors W J Lyons and C M Maxwell, both orthopaedic surgeons, not only provided reports but gave oral evidence and were cross-examined. Although the presence of oral evidence enlarges the scope of factors which may cause a preferring of one witness to another, even on the basis of written evidence alone, many factors may cause the evidence of one expert to be accepted in preference to that of another. Examples of such factors are the extent of detail, thoroughness and objectivity demonstrated by an expert's report; whether things said in a report accord with the decision-maker's own store of knowledge and experience; whether the easoning in the report itself "makes sense" to the decision-maker; the consistency of the content of a report with the corpus of the other evidence in the case, and in particular, with the decision-maker's inferences, expectations and assumptions properly based on that other evidence. It is not a requirement of the law, even if it were possible (it is not), that a decision-maker articulate every factor which has caused him or her to prefer one witness to another. Where a decision-maker has shown that he or she has recognised a material conflict in the evidence and perceived the necessity of choosing and has attempted to support the choice made thereby showing that he or she has proceeded responsibly, an appellate body must not be captious or pedantic in analysing and testing the adequacy of the grounds which the decision-maker has stated for the choice made. This would or could constitute or give rise to error by the appellate body itself. The point has additional force in a case such as the present one where the decision-maker is not a legally qualified person or body.

The purposes, nature and extent of the obligation to give reasons have been much considered, both in this Court (see, for example Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465 (FCA/Wilcox J); Politis v FCT 88 ATC 5,029 (FCT/Lockhart J); Bisley Investment Corporation Ltd v Australian Broadcasting Tribunal (1982) 59 FLR 132 (FCA/FC); FCT v Cainero (1988) 15 ALD 368 (FCA/Foster J); Dornan v Riordan (1990) 24 FCR 564 (FCA/FC); Australian Telecommunications Commission v Barker (1990) 12 AAR 490 (FCA/FC); Australian Postal Commission v Idriss (1992) 26 ALD 257 (FCA/Foster J); McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 (FCA/FC); Crowe v Riordan (1992) 26 ALD 712 (FCA/Einfeld J); Henry v Australian and Overseas Telecommunications Corporation, unreported, Beazley J, 8 April 1993; Ahlburg v Telstra Corporation Ltd, unreported, Keely J, 25 February 1994; Telstra Corporation Ltd v Arden, unreported, Burchett J, 3 August 1994) and elsewhere (see, for example, Pettitt v Dunkley (1971) 1 NSWLR 376 (NSW/CA); Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378

(NSW/CA); Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (NSW/CA)). And see Peter Bayne, "The Inadequacy of Reasons as an Error of Law" (1992) 66 ALJ 302. M Smith, "The Obligation of the Administrative Appeals Tribunal to Give Adequate Reasons"

(1992) 3 Public Law Review 258; H Katzen, "Inadequacy of Reasons as a Ground of Appeal" (1993) 1 Admin L Rev 33; The Hon Justice M D Kirby "Reasons for Judgment: 'Always Permissible, Usually Desirable and Often Obligatory'" (1994) 12 Aust Bar Rev 121. Where findings of fact have been based on the assessment of the credibility of a witness, appellate courts will be extremely reluctant to interfere, and "(i)n general, they will do so only where the testimony of a witness is in conflict with facts incontrovertibly established or it is glaringly improbable": Daniels v Burfield, unreported, HCA, 9 November 1994, Transcript at p 3.

In the present case the AAT said this in relation to the credibility of the applicant:

"74 The Tribunal considers that little weight can be given to the evidence of the Applicant. He is a poor historian and the discrepancies in the histories obtained by various doctors are significant. We make no finding as to whether the Applicant is deliberately trying to mislead."

No attack was levelled at the AAT's finding that the applicant's evidence was unreliable, and no doubt any such attack would have failed. It is important then to note that the AAT's task was to determine whether the applicant had, on and from 27 July 1989, an ongoing disability arising from the lift incident on 6 April 1989, and whether the applicant had suffered a repetitive strain injury to his left shoulder and neck arising out of or in the course of his employment in or about September 1991, in a situation in which it could not rely on his own evidence. Evidence of the contemporaneous making of complaints by the applicant or the absence of such complaints, and contemporaneous examinations and observations by medical experts might be expected to assume particular importance in the case.

In relation to the alleged back injury suffered in the lift incident on 6 April 1989, the AAT accepted the evidence of Dr Munro S Alexander who examined the applicant on, and furnished a report dated, 27 July 1989 - the critical date in this part of the case. There are answers to the three particular criticisms made by the applicant of reasons given by the AAT for that acceptance:

(a) While the AAT set at nought the view of the medico-legal consultant, Dr R L Thomson, in relation to the repetitive strain injury on the grounds that he had no specialist qualifications and that his reports contained expressions and phrases which did not accord with the provision of objective opinion, the particular report dated 17 July 1989 relating to the back injury recorded physical examination and observation of the applicant's behaviour on that date (as distinct from an expression of opinion) which supported Dr Alexander's findings ten days later. In particular, Dr Thomson's report contained the following:

"PHYSICAL EXAMINATION

Physical examination of the lumbo-sacral back today revealed little of any significant consequence. There was a well preserved lumbar lordosis, no paraspinal muscle spasm was evident and there was some mild tenderness to palpation. Forward flexion was possible to 80 degrees and was limited thereat by claimed pain but other movements of the lumbo-sacral back were completely unrestricted with little credible discomfort.

Examination of the lower limbs revealed reflexes to be present and equal and straight leg raising was unremarkable to 90 degrees bilaterally. This seemed confirmed by the worker being able to sit sideways on the examination couch, legs dangled over the side and when he was required to extend his knees, that produced no lumbo-sacral back discomfort at all. There was no sensory deficit in either lower limb, no thigh muscle wasting, with the mid thigh circumference being 53 centimetres bilaterally and no difference in lower limb lengths.

Apart from the above, the observed involuntary conduct of the lumbo-sacral back and lower limbs was quite unimpeded. The worker was well able to take all his weight first on one foot and then the other when removing and replacing his trousers, correct skilfully for overbalancing tendencies from one foot to the other and he had quite normal gait, locomotion, heel and toe walking etc.

I also observed the worker (unnoticed by him) after he left the consultation room and he moved away therefrom in an even and purposeful and forthright way without the slightest suggestion of any visible impediment whatsoever relating to the lumbo-sacral back and lower limbs."

In my view, Dr Thomson's examination and observation of the applicant on 17 July 1989, being distinct from any conclusion, view or opinion of his, properly lent support to Dr Alexander's opinion expressed in his report dated 27 July 1989.

(b) The fact that Dr Chung certified that the applicant was not fit due to "chest" rather than "back" problems does (contrary to the applicant's submission) lend some support to Dr Alexander in that if a back problem was being experienced, the applicant would probably have complained about it to his general practitioner, Dr Chung;

(c) The videos were relevant to the applicant's complaint that he was still suffering from the back injury at the end of 1992 and in early 1993 (when the filming took place), and in so far as they undermined the credibility of his evidence as to then continuing nature of his back problem, they were relevant to the issue whether or not the back injury had resolved by 27 July 1989.

1. In my opinion the AAT was entitled to prefer the evidence of Dr Alexander for the reasons referred to and for the further reason (not attacked in the applicant's submissions) that "his conclusions (were) based on the available evidence, including radiological evidence that there was no problem with the lumbo-sacral spine and only minor mid thoracic kyphoscoliosis" (AB 557, quoting the report dated 6 July 1989 of the radiologist, Dr J S Ballenden, at AB 338).

2. It was said in submissions (Transcript 3.09-3.10) that the AAT preferred Dr Alexander to Doctors Chung, Rowden, Thomson and Vote. Dr Alexander provided a four page report dated 27 July 1989 to the applicant's employer based on his interview and examination of the applicant on 27 July 1989 and on a study of X-rays of the applicant dated 20 February 1985, 7 April 1989, and 6 July 1989. His report addressed the question whether there existed (on 27 July 1989) any ongoing effects attributable to the lift incident on 6 April 1989. Accordingly, his report was directed precisely to the issue which was before the AAT in this part of the case.

3. What was the nature of the evidence of the other four doctors referred to? Dr Francis T W Chung of 17 Railway Street, Banksia was the applicant's local general practitioner. He provided numerous "medical certificates" expressing opinions as to what the applicant was suffering from and as to his unfitness for work. He recorded that pain complained of was said by the applicant to have been caused by the lift door incident on 6 April 1989 but did not anywhere express the view that there was disability after 12 May 1989 attributable to that incident. Dr Chung did record in a report dated 14 August 1992 to the applicant's solicitors that on 11 July 1989, three months after the lift incident, the applicant had told him that since the incident he had developed low back pain, and that Dr Chung had then referred him to Dr Rowden.

4. Dr Neville Rowden, orthopaedic surgeon of Hurstville, had first examined the applicant on 11 May 1989 upon reference from Dr Chung, and had furnished to Dr Chung a report of that date. In that report he had expressed the opinion that the applicant had had "a soft tissue contusion to his trunk in the manner he described" and that he needed some "postural strengthening exercises", and that after physiotherapy "he should be fit for work in 3 or 4 weeks time" - a period which expired well before 27 July 1989. Dr Rowden again examined the applicant on 23 August 1989 upon reference from Dr Chung and furnished a report to Dr Chung dated 31 August 1989. In addition to his examination of the applicant, he had the benefit of the applicant's account of the injury four months previously and the X-rays taken on 6 July 1989. Dr Rowden's conclusion did not deal with the question whether any ongoing disability was attributable to the accident. His conclusion was in the following terms:
   

"Mr Yamandilovski (sic) appears quite unfit and I believe he needs persistent postural strengthening to enable him to (do the) more demanding type of work he is doing. I feel at his age of fifty-four years he should think seriously of having a less demanding job which involves less stresses to his lumbar spine. I have referred him for physiotherapy at this stage."

1. Dr Ronald J Thomson, medico-legal consultant, examined the applicant upon reference from his employer and examined him on 17 July 1989 and provided a three page report dated 17 July 1989. In addition to his examination of the applicant, Dr Thomson had the benefit of the applicant's account of the injury on 6 April 1989 and the X-rays dated 7 April 1989 and 6 July 1989. It is possible to detect a note of scepticism in Dr Thomson's report. His conclusion included the following:
   

"The most this worker may have sustained may have been a musculo-ligamentous strain of the lumbo-sacral back and the physical examination of the part (sic-'patient' or 'party']) today suggests minimal residual disability, if any and on honest physical grounds.

The observed involuntary conduct of the part (sic-'patient' or 'party']) is completely unimpeded and this worker is currently fully fit to perform any of the normal usual duties required of him as a cleaner."

1. The applicant's case would scarcely be advanced by reliance on Dr Thomson.

2. Finally, Dr James J Vote, orthopaedic surgeon, examined the applicant on 11 February 1992 upon reference from a Dr Tulevski. Dr Vote provided reports dated 18 February 1992 and 18 May 1993 which dealt exclusively with the applicant's complaint about the left upper arm. He expressed no opinion in relation to the lift accident on 6 April 1989.

3. In the light of this, there was virtually no medical evidence that there was ongoing disability on and from 27 July 1989 arising out of the lift incident on 6 April 1989 contradictory to the opposing view given by Dr Alexander in his report.

4. Since I am of the view that the reasoning process exposed by the AAT supported its conclusion, I reject the submission that it did not comply with sub-section 43 (2) and/or (2B) of the AAT Act.

Reasons relating to repetitive strain injury to left shoulder and neck culminating in the making of a claim on 18 October 1991
50. I refer to what I said above in relation to the giving of reasons for the preferring of one witness, and in particular one expert, against another. It will be convenient to deal with the applicant's submission directed against the AAT's acceptance of the orthopaedic surgeon, Dr William J Lyons, and its rejection of the orthopaedic surgeon, Dr C M Maxwell, in the sequence in which those submissions were made as noted earlier. As noted earlier, both gave oral evidence before the AAT.

1. The issue before the AAT was whether the applicant had suffered because of his labours with cleaning equipment a repetitive strain injury to the left shoulder and neck culminating in his claim dated 18 October 1991, in a context in which the AAT decided that it could attach little weight to the evidence of the applicant himself.
   

(1) The first criticism which the applicant makes of the AAT's acceptance of Dr Lyons was that the AAT wrongly thought Dr Lyons to be supported by Ms Kerry Cooper, manipulative physiotherapist of "Sydney Occupational Health Services".

In his report dated 28 September 1992, Dr Lyons expressed the opinion that he found the situation "most confusing", that he thought the applicant's presentation upon examination "grossly exaggerated", that he thought that the applicant suffered "mild supra spinatus tendinitis (sic)", that the tendonitis was "quite mild in degree", and that the applicant exaggerated his presentation when being examined (AB 502). Thus, it might be said that Dr Lyons reluctantly, and rather than make the assertion, impossible to support, that the applicant was feeling no pain in the shoulder, concluded that mild supra spinatus tendonitis existed.

Ms Cooper examined the applicant on 17 March 1992 and furnished a report dated 18 March 1992 to the applicant's employer. She said this:

"Mr Jamandilovski's main complaint is of pain in the left shoulder. The restricted shoulder mobility in this case is not readily explained by any of the well recognised shoulder conditions such as frozen shoulder, capsular contracture, instability, tendinitis (sic) or impingement. Neither is the shoulder restriction easily attributable to mechanisms originating in the cervical spine. There is some generalised stiffness of the low cervical and upper thoracic spine which may correlate with some neck discomfort and there is a slight loss of flexibility of the arm consistent with lack of exercise.

Treatment (as requested) will be directed at these two identified restrictions." (AB 436)

The applicant had six physiotherapy treatments from Ms Cooper. The last was on 8 April 1992. She furnished a further report dated 9 April 1992. This included the following: "Supraspinatus tendon tests and impingements tests were painless.

........ ........ ........ ........ ........ ........ ... The restricted shoulder mobility in this case is not readily explained by any of the well recognised shoulder conditions. There is no evidence of intraarticular pathology nor periarticular pathology such as frozen shoulder, capsular contraction, supraspinatus tendonitis or impingement. ........ ........ ........ ........ ........ ........ ..... In summary, Mr Jamandilovski's main complaint is pain in the neck and shoulder region. There is no intraarticular or periarticular pathology. The presence of spondylosis in the neck may cause some discomfort from time to time. It is possible that the spondylosis detected on X-ray may have been present prior to Mr Jamandilovski (sic) lift accident. The shoulder restriction is unexplained. The observed restrictions in this case are not consistent with the many well recognised shoulder condition(s). The amount of disability cannot be correlated with clinical findings." (AB 457-459)

Ms Cooper supports Dr Lyons in one respect and not in another. She supports him in her inability to find any clinical support for the applicant's complaint including any clinical evidence of supra spinatus tendonitis. However, Dr Lyons ventures the opinion that on the assumption that the applicant's complaints of pain in the left shoulder are genuine, this is probably due to mild supra spinatus tendonitis occurring spontaneously, Ms Cooper does not venture any opinion as to the cause of the pain if it exists. Although she recorded in her report dated 9 April 1992 that supraspinatus tendon tests were painless and that there was no evidence of supraspinatus tendonitis, it is conceivable that if she was asked to assume that the complaints were genuine she would concede that mild supraspinatus tendonitis occurring spontaneously was a possibility.

I do not think that the AAT's preference for Dr Lyons as against Dr Maxwell and other medical evidence is shown to involve an error of law by reason of the AAT's reference to Ms Cooper in these circumstances.

(2) The second criticism made in the applicant's submissions is also, in my view, not supported. In the first place, it is not shown that there was no relevant difference between what Dr Maxwell intended to indicate when he referred to "left subacromial bursitis" in his undated report at AB491, and the condition referred to by Dr Lyons in his report dated 28 September 1992 previously referred to. It was asserted in oral submissions for the applicant on the appeal that "there is no evidence really as to whether or not there is any difference between the two diagnoses" (Transcript 10.38-10.39).

Even if there should be an overlap between the two conditions, I do not think that this renders impermissible the preference which the AAT had for Dr Lyons' evidence. Both doctors gave evidence. The ultimate question before the AAT was whether the applicant had suffered an injury or aggravation of an injury, in either case arising out of or in the course of his employment. Dr Lyons gave detailed evidence leading to the conclusion that supra spinatus tendonitis can occur spontaneously in middle age. The AAT found this diagnosis "convincing" and accepted it.

It should be remarked that the AAT gave further reasons for accepting Dr Lyons (see paras 79-81 of the AAT's Reasons for Decision quoted at pp 17-18 above) which were not attacked on the appeal.

All the doctors relied on by the applicant had proceeded upon a false assumption that use of the polisher involved heavy work. As the AAT noted (AB 551) Dr Maxwell acknowledged that when he was writing his reports and forming his opinion about the effect of the polisher he had been thinking of a heavy polisher which vibrated badly and took quite a bit of effort to push around. In his evidence, Dr Maxwell referred to "a heavy polisher which vibrated badly and involved at least a moderate degree of force or effort" (AB 172.03 - 20; 176.10 -.13). (As well, Dr Vote said "It was felt that these symptoms were related to his work using a heavy rotary cleaning machine" (AB 523.2), Dr Tulevski said "He was working as a polisher which involved handling heavy machines" (AB 510), and Dr Berry referred to "heavy lifting of industrial polishers" (AB 514)). This erroneous assumption infected the medical evidence led for the applicant.

The AAT had the advantage of seeing a demonstration of the polisher which the applicant had been required to use at work (AB 138) and accepted the evidence of the applicant's supervisor, Mr Troche, that the work was not heavy or physically demanding (AAT's Reasons for Decision, para 84, AB 561 - 562 and evidence of Troche, AB 130-138). In fact, the polisher was wheeled rather than lifted, according to the applicant (AB 74.15 - .20; .28 - .30). The AAT found that the use of the polisher was "without apparent effort on the part of the operator" (Reasons for Decision, para 28, AB 539).

I think that the AAT was entitled as a matter of law to accept and act upon the evidence of Dr Lyons. Accordingly, I do not think that in preferring Dr Lyons to the applicant's medical evidence, the AAT misdirected itself as to the weight of Dr Lyons' evidence and I do not think that in rejecting the opinion of Dr Maxwell, the AAT misconceived the nature of his evidence or proceeded on a mistaken view of that evidence or misdirected itself as to the weight to be given to that evidence.

(3) In my view, for the reasons given above, the AAT adequately exposed the reasoning which led it to reject the applicant's case in respect of the alleged repetitive strain injury of 1991.

CONCLUSION
52. Since the grounds of appeal propounded have not, in my view, been sustained, the application should be dismissed and the applicant should be ordered to pay the respondent's costs of the proceedings.