Mark Anderson and Australian Postal Corporation

[2013] AATA 512

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL                  )

)No: 2014/3486

General Division  )

Re:  Mark Anderson

Applicant

And:  Australian Postal Corporation

Respondent

CORRIGENDUM

TRIBUNAL:   Dr Damien Cremean, Senior Member

DATE:            21 April 2016

PLACE:         Melbourne

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to add the following text to the decision in this application as follows:

The Respondent shall pay the Applicant’s costs and disbursements in respect of the proceedings pursuant to s 67(8) of the Safety, Rehabilitation and Compensation Act 1988.

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

Senior Member

Anderson and Australian Postal Corporation (Compensation) [2016] AATA228 (8 April 2016)

Division	GENERAL DIVISION
File Number(s)	2014/3486
Re	Mark Anderson
APPLICANT
And	Australian Postal Corporation
RESPONDENT

Decision

Tribunal	Dr Damien Cremean, Senior Member
Date	8 April 2016
Place	Melbourne

The decision under review is set aside.

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

Dr Damien Cremean

COMPENSATION– ailment – osteoarthritis left thumb – whether compensable – “aggravation” – “significant” – whether notice required – whether false and wilful statement – decision under review set aside

Legislation

Safety Rehabilitation and Compensation Act 1988 (Cth) sections 4, 5A, 5B, 7(7), 14, 53

Cases

Abrahams v Comcare [2006] FCA 1829

Australian Postal Corporation v Bessey [2001] FCA 266

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Comcare v Lofts (2013) FCR 220

Comcare v Reardon [2015] FCA 1166

Commonwealth of Australia v Beattie (1981) 35 ALR 369

Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626

Georgoulas and National Australia Bank Ltd [2013] AATA 512

Muscat and Australian Postal Corporation [2016] AATA 13

Tippett v Australian Postal Corporation (1998) 27 AAR 40

Weigand v Comcare Australia [2002] FCA 1464

Wilson and Comcare [1996] AATA 862

REASONS FOR DECISION

Dr Damien Cremean

8 April 2016

1. Application is made to review a decision of the Respondent made on 14 May 2014.

2. That decision affirmed a determination made on 28 March 2014 that the Respondent was not liable to pay compensation to the Applicant under section 14 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (‘the Act’) in respect of left thumb severe pain. The Applicant, Mr Anderson, gave sworn evidence at the hearing and called medical witnesses. The Respondent called only a medical witness.

3. In what follows I provide an outline of the Applicant’s and the witnesses’ evidence.

   Outline of Evidence

   Applicant 

4. The Applicant is aged 47 years and was born on 13 October 1968.

5. He commenced work with Australia Post on 19 March 1997. He was working in the Northern Parcels Centre. He had previously completed an apprenticeship as a diesel mechanic with Saab-Scania, and had also worked as a storeman and in various other driving and delivering jobs.

6. In about March 2000 the Applicant became a full-time Postal Delivery Officer (‘PDO’), first at the Brunswick Delivery Centre and then at the Preston Delivery Centre.

7. By 2002, the Applicant worked as a PDO in the suburban areas around Fairfield. He would start work each day at about 6.00am and would begin sorting the mail for about two to three hours. He would then go out on his motorcycle and do deliveries. Sometimes he would work overtime on another round within his area, if needed. While delivering mail he would also collect depot bags along the way.

8. On his round there were as many as 900 delivery points (addresses) or more.

9. The Applicant is right hand dominant. This is fortunate because the motorcycle’s controls are on the right handle. He used his right hand for braking and accelerating and his left hand to deliver mail.

10. For as long as the Applicant  can remember he has been delivering letters with a sort of flicking motion with his left thumb. He said I flick the letters in the front delivery basket to get the mail for the particular point or address. He said I then pick the mail up and roll the wrist over and flick my left thumb as I deliver the mail into the box. He indicated this flicking motion was quite forceful.

11. In November 2010 the Applicant filed an Incident Report detailing a time when he noticed a sharp pain in his right wrist after he overran a letterbox and had firmly applied the brake. He went to his general practitioner (Dr Ahern) on 8 November 2010 about a separate matter (sore knee). During that consultation the Applicant told his doctor of the earlier incident (severe wrist pain followed by pins and needles), and was told he could have carpal tunnel syndrome. There is no reference in the Incident Report to any left thumb pain.

12. The Applicant’s evidence is that in 2012 he noticed pain in his left thumb but did not worry about it at the time. The pain he said was in the joint where the thumb is joined to the wrist. Although he continued to do his deliveries he noticed the pain would come on every time I flicked a letter into the box or would roll my wrist over to get ready to do so.

13. Early that year, before feeling the pain in his thumb, the Applicant went to see his doctor about continuous pain in both wrists which would wake him at night. He was referred to a specialist (Associate Professor Johnstone) who advised him that he had carpal tunnel syndrome.

14. He was then given injections in his wrists and his left thumb. The pain in the thumb went away but the pain in his wrists remained. He was given a second bout of injections in the wrists which for a time relieved the carpal tunnel pain. The pain in the wrists and the thumb, however, returned once more after a short while.

15. Associate Professor Johnstone performed bilateral endoscopic carpal tunnel release surgery on the Applicant’s wrists at the Bundoora Hospital on 7 June 2013. A claim made by him for carpal tunnel syndrome was rejected by the Respondent and he did nothing further about it.

16. The Applicant returned to work around 8 July 2013 and was placed on light duties for two weeks. On his first day back he noticed the pain in both wrists had gone but the stabbing pain in his left thumb was still there. This made him think that his left thumb condition was a separate issue which until then had been masked by his carpal tunnel syndrome.

17. He filed a report about his left thumb on 12 August 2013 but it apparently was lost or misplaced. So on 18 October 2013 he filed a second Incident Form, and a claim for compensation on 22 October 2013 to cover medical costs.

18. In the claim for compensation the Applicant provided full details of his injury as follows: Left thumb - severe pain. Other relevant questions and responses in the claim included:

    
    When did the injury happen or when did you first notice the illness? 
    

    Answer: 1 August 2012 at 2.00 pm.

    
    Date you first had medical

    treatment for the injury/illness?
    Answer: 13 August 2013.

    
    Have you ever had a similar injury/illness?
    

    Answer: (ticked) No

    
    Have you ever

    claimed compensation before for a similar injury /illness?

    
    

    Answer: (ticked) No

19. His medical costs arise from the left thumb injections he was given by Associate Professor Johnstone in August and September of 2013, and April of 2014. On each occasion he took time off work. He has modified his hand actions since.

20. The pain in his thumb has not gone away. He says it feels like a stabbing pain. Any movement of his left thumb produces it.

21. The Applicant’s said in his statement dated 26 June 2015 I firmly believe that the work with Australia Post has caused my left thumb pain. He attributes this to doing his job. In particular, to his flicking of letters into letterboxes while performing rounds.

22. Outside work the Applicant goes to the gym and does weights but he says he takes care to avoid any stress on his thumb. He has been doing weights since about 2005 and has also done some body building.

23. The Applicant does not experience any problems with his right thumb.

    Medical

24. A number of doctors gave evidence: Mr John Buntine, a plastic and hand surgeon; Mr Thomas Kossmann an orthopaedic surgeon; Associate Professor Bruce Johnstone a hand and microsurgery surgeon; and Mr Murray Stapleton a plastic and hand surgeon.

25. Mr Buntine gave evidence in person. In his report of 29 June 2015 he says that the Applicant suffers from left first carpometacarpal joint osteoarthritis (degenerative changes) in his left thumb.

26. Mr Buntine said this condition is work caused or considerably aggravated by work. He said he has no doubt that, on the balance of probabilities, Mr Anderson’s work for Australia Post over 15 years has caused or significantly aggravated early left first carpometacarpal joint osteoarthritis.

27. Mr Buntine said the occurrence of osteoarthritis depends upon an inborn tendency to develop the condition. But he said the immediate cause of occurrence of osteoarthritis is often a frequently performed activity which places a particular stress upon the joint affected. In the Applicant’s case a clearly explained mechanism could be seen. He set this out as follows:

    He showed me that he takes each article by pronating his left forearm, flexing and ulnar deviating the wrist and gripping the item between the terminal pulp of the left thumb and the radial side of the tip of the index finger. He then supinates the forearm, extends and slightly radially deviates the wrist and flicks the thumb across so that the region of its interphalangeal joint comes close to the other side of the interphalangeal joint of the index finger at which time the grip is released and the item is delivered into a letter box.

28. I took this to be the exact range of movements performed by the Applicant when he said he would flick letters during deliveries.

29. In oral evidence Mr Buntine gave further details of his specialist experience in hand surgery and in dealing with skin cancers.

30. Mr Buntine said there was no way that the Applicant could have distinguished between the pain from carpal tunnel syndrome and pain from osteoarthritis. He said this was a very common phenomenon. He noted that the Applicant’s right thumb was not affected. He said that the condition in his left thumb will only get worse over years. Surgery on the thumb was available but he would not recommend it for someone still working.

31. In cross-examination Mr Buntine said the Applicant had given him the most specific account he had ever heard of how a problem with osteoarthritis in a joint had arisen. This referred back to the mechanism for flicking mail described in paragraph 27.

32. Earlier Mr Buntine said in evidence that the activity described there was sure to have caused the Applicant’s condition. He said it was no wonder that that activity had worn out the base of his thumb.

33. Mr Buntine said in answer to cross-examination that he did not believe that the Applicant’s holding weights at gym would affect his condition. Earlier in evidence-in-chief he said that the Applicant had the skills to do weights without involving the troubled joint.

34. Associate Professor Johnstone also gave evidence in person. In his report of 25 January 2012 (in connection with reported tenderness in the region of the extensor policis brevis over the mid first metacarpal joint) he says he is not certain of the diagnosis but says it may be related to the Applicant’s repetitive flicking of postal items to the left hand side.

35. In a further report of 14 August 2013 Professor Johnstone says he believes there is good evidence radiologically of left 1^st carpometacarpal joint arthritis (emphasis supplied). He says he injected a small amount of local anaesthetic into the Applicant’s left thumb and it produced an immediate complete relief of pain further confirming that his pain is intra-articular and not related to his extensor tendons.

36. Associate Professor Johnstone stated during oral evidence that carpal tunnel syndrome and osteoarthritis of the thumb give rise to a quite separate set of symptoms. They are two separate things. In cross-examination he said it can be unclear which is which.

37. Associate Professor Johnstone said even he had had difficulty working out why there was pain at the base of Mr Anderson’s thumb. He said he himself only diagnosed it in 2013. He had spent some time trying to work out what structure was causing the pain. He recalled that in May 2013 the Applicant did not know what was causing the pain in his thumb either.

38. In cross-examination Associate Professor Johnstone said he could not say whether the osteoarthritis was caused by the Applicant’s work or not, but added that he was not to be taken as saying that PDO work was not the cause of it. He considered (absolutely he said) that his PDO work would have aggravated the condition and (by repetitive movement) would have significantly done so. He said there was no evidence of the same problem in the Applicant’s right thumb and that in his left thumb the condition was fairly advanced.

39. Mr Kossmann gave evidence by telephone from Mildura. In his report of 12 November 2014 he diagnosed the Applicant’s left thumb pain as: Aggravation pre-existing osteoarthritis of the first metacarpophalangeal join, left side. Expanding on this he said the Applicant had not suffered an actual injury to his thumb but he believed the Applicant was suffering from degenerative changes in his first metacarpophalangeal joint on the left side which had been aggravated, exacerbated and become painful due to his PDO work.

40. Mr Kossmann said he believed the Applicant’s employment was a significant contributing factor to the onset of his left thumb condition. He said that the Applicant had explained to him that he would flick through thousands of letters on a daily basis and undertake certain movements which would compromise the first metacarpophalangeal joint.

41. Mr Kossmann said the flicking movement performed by the Applicant in the course of work was a complex one which would aggravate a pre–existing arthritic condition. He said he was surprised that the Applicant had continued working as he has.

42. In summary, Mr Kossmann said he believed that Mr Anderson’s employment was a significant contributing factor to the aggravation, exacerbation and acceleration of degenerative changes in his first metacarpophangeal joint [of the left thumb] on the left side.

43. Under cross-examination Mr Kossmann said he could not exclude aggravation of the arthritic thumb by the Applicant’s lifting weights at gym.

44. Mr Stapleton gave evidence in person. In his report of 27 February 2014 he said he had viewed x-rays and that his viewing of them confirmed his opinion that the Applicant has basal joint arthritis. He said that upon examination the basal joint in his left thumb is swollen and tender and that, although there is no loss of movement in the joint, such movement as the Applicant does have is associated with considerable discomfort.

45. Mr Stapleton made a number of other points in his report. He said he did not regard the Applicant’s condition to be an injury. He said he did not consider the condition by way of cause or aggravation as related to his employment as a postal delivery officer. Indeed he said there was no aspect of his employment that even contributed to the condition.

46. Mr Stapleton said he regarded the Applicant’s thumb condition as being an underlying genetically pre-determined problem, part of a known natural progression of basal joint arthritis of the thumb. Earlier in his report he said that the condition is of unknown origin from which he (the Applicant) would suffer whether or not he worked as a postman.

47. Mr Stapleton was asked whether the Applicant’s work would aggravate his arthritic condition. His answer was: it depends on what is meant by aggravation. He did answer, however, that he thought his work would cause the Applicant pain in the thumb.

48. A point which he made in re-examination was this: whether the Applicant did anything at all, his level of discomfort would get worse even if he stopped work. Indeed, he would have this condition whether he worked or not.

    Contentions and submissions

49. The Applicant contends there is sufficient evidence before the Tribunal for it to set aside the reviewable decision and to vary the original determinations to reflect overall findings that the Respondent is liable under section 14 of the Act for the condition of osteoarthritis of the carpometacarpal joint of the left thumb, or aggravation of osteoarthritis of that joint of the left thumb.

50. The Respondent, on the other hand, contends that the Tribunal should make a decision that the reviewable decision be affirmed. In particular, the Respondent submits that there should be a finding that the Applicant’s condition has not been caused by his employment or that his employment did not significantly contribute to an aggravation of the underlying condition of osteoarthritis.

51. The Respondent goes further and submits that the Applicant falls under section 53 and/or section 7(7) of the Act with the consequence that the Applicant cannot succeed in any event.

    Consideration

    Compensable injury

52. By section 14 of the Act the Respondent is liable to pay compensation in accordance with the Act in respect of any injury suffered by an employee if the injury results in death, incapacity for work, or impairment. This has often been called a “gateway” provision: Comcare v Lofts (2013) FCR 220 at [8]. By section 4(9) of the Act an incapacity for work means an incapacity for work suffered by an employee as a result of an injury, being: an incapacity to engage in any work, or to engage in work at the same level the employee was engaged in immediately before the injury occurred.

53. An injury is defined in section 5A(1) as a disease suffered by an employee; or an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, such employee’s employment… A disease is defined in section 5B(1) of the Act as an ailment suffered by an employee; or an aggravation of such an ailment; that was contributed to, to a significant degree, by the employee’s employment... An ailment is defined in section 4(1) of the Act as meaning any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).

54. A significant degree is defined in section 5B(3) of the Act as meaning a degree that is substantially more than material. Matters which may be taken into account by the Tribunal are set out in section 5B(2) of the Act. They include the duration of an employee’s employment and the nature of, and particular tasks involved in, that employment. Other matters may be taken into account and section 5B places no limit on those.

55. I am satisfied it is correct to describe the Applicant as suffering osteoarthritis in the left thumb. I rely upon the evidence in particular of Associate Professor Johnstone, the treating specialist.

56. I do not consider it could be seriously in issue, as far as the Respondent is concerned, that such condition satisfies the descriptor of an ailment and that, subject otherwise to satisfying section 5B of the Act, it meets the definition of a disease and likewise, subject otherwise to satisfying section 5A of the Act, it is an injury under the Act.

57. The question for me to determine, is whether or not the correct or preferable decision is that the Applicant’s condition is compensable under section 14 of the Act. That is to say whether his condition is an ailment or an aggravation of an ailment that was contributed to, to a significant degree, by his employment as a PDO. Should his condition satisfy this requirement, then it follows he has a disease under the Act and thus an injury which is compensable; if it may also be said that such disease arose out of or in the course of his employment.

58. The word aggravation in section 5B(1) is not defined in the Act except in section 4(1) as including acceleration or recurrence. I have said previously that I see the word aggravation as synonymous with exacerbate. See Muscat and Australian Postal Corporation [2016] AATA 13 at [47]. In Wiegand v Comcare Australia [2002] FCA 1464 at [21] von Doussa J said: I do not think there is any material distinction to be drawn between an exacerbation of an ailment and an aggravation of an ailment. In the context of that case his Honour said both expressions convey the same notion, namely that the depression became worse.

1. A relevant question to ask therefore is whether the Applicant’s condition was made worse by his PDO employment. In that regard, remarks of Kitto J in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 634 are more than merely instructive:

   As applied to a disease [the word exacerbation] is properly used to refer to effects which the disease produces in the victim rather than to the advance of the disease itself to 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 and Wagnall’s Standard English Dictionary….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 of symptoms. The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism”.

   Windeyer J in the same case (at 640) speaking of the words in the statute under consideration (aggravation, acceleration, exacerbation or deterioration) said:

   The question that each [word] poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient.

2. As I take the view above that aggravation is synonymous with exacerbation these comments apply with equal force to an aggravation of a disease also. As indicated by the remarks of both Kitto and Windeyer JJ, aggravation of a disease may take the form of pain. Finkelstein J said in Tippett v Australian Postal Corporation (1998) 27 AAR 40 at 44: Pain is the most common symptom of an injury.  He also observed that 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.

3. There is discussion of this question of pain also in Commonwealth of Australia v Beattie (1981) 35 ALR 369 where (at 378) Evatt and Sheppard JJ say with reference to the remarks of Kitto J (see above paragraph 59) that 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 an aggravation of an injury. The position of a temporary aggravation is discussed by Gyles J in AustralianPostal Corporation v Bessey [2001] FCA 266 at [6]-[8].

4. As regards this case it seems right to say that osteoarthritis is a constitutional condition in the sense that it can occur in someone whether they are working or not. Mr Buntine in his evidence said that the occurrence of osteoarthritis depends upon an inborn tendency to develop the condition.

5. All the other doctors who gave evidence seem to be of the same view, although Associate Professor Johnstone is a little more guarded on the point indicating a position of doubt.

6. Mr Kossmann indicated his view was that the Applicant was suffering from degenerative changes and Mr Stapleton in his evidence said he regarded the Applicant’s thumb condition as an underlying genetically pre-determined problem.

7. I consider the balance of opinion is to the effect that the Applicant’s osteoarthritis in his left thumb is a constitutional condition. Using Mr Stapleton’s description, it is an underlying genetically pre-determined problem. I am satisfied of this on the balance of probabilities.

8. Based on the medical and other evidence I am also satisfied it is correct to describe the Applicant’s condition as an aggravation of an ailment. That is to say, his PDO work aggravated (or exacerbated) his underlying arthritic condition: his ailment was made worse by his work. Pain from the underlying condition increased or intensified because of his PDO work. In other words, his condition was made worse by his PDO work, in particular his habit of flicking letters. It did not in my view merely happen to become worse while he was carrying out PDO duties during the working day. Based on the evidence I heard, there is a direct link between the Applicant’s flicking letters and the pain of his condition in his left thumb. His work has increased or intensified the pain of his condition. See the comments of Windeyer J in Federal Broom Co Pty Ltd v Semlitch, (above, paragraph 59). Mr Stapleton also agreed, I would add, that the Applicant’s work would have caused him pain in his thumb.

9. The exact mechanism the Applicant used in flicking letters is set out in great detail in the evidence given by Mr Buntine. While giving evidence, Associate Professor Johnstone demonstrated the various motions involved. It seemed clear from that demonstration how the Applicant’s thumb was placed under stress each time he flicked a letter. It was an action he was performing at least 900 times, a day over a very long period during his employment.

10. I rely upon the evidence of Mr Buntine, in particular, for my finding that the Applicant’s condition was aggravated by his PDO work. His evidence was impressive. He said, and I accept, that the Applicant’s letter flicking while working as a PDO was sure to have caused his condition. By that I take him to be saying the Applicant’s constant and frequent letter flicking was sure to have produced the pain of the condition.

11. I say that because Mr Buntine had already given evidence, as discussed above, that the occurrence of osteoarthritis depends upon an inborn tendency to develop the condition. But if that is so, the condition cannot originate in work as such as I would understand it. Someone may well develop the condition without being ever at work. However PDO work may, and in my view did, cause the Applicant’s condition to be painful and thus aggravated it. See the remarks of Finkelstein J in Tippett v AustralianPostal Corporation (above, paragraph 60).

12. Mr Buntine was quite specific in saying he had no doubt that, on the balance of probabilities, Mr Anderson’s work for Australia Post over 15 years had caused or significantly aggravated early left first carpometacarpal joint arthritis. When he said that the immediate cause of the occurrence of osteoarthritis is often a frequently performed activity which places a particular stress upon the joint affected, I took his evidence to mean that the condition makes its presence known if an activity placing a particular stress on a joint is performed frequently. In the Applicant’s case the frequently performed activity refers to his letter flicking while a PDO and the joint affected is at the base of his left thumb.

13. Although I rely on the evidence of Mr Buntine in particular, I rely also upon the evidence of Associate Professor Johnstone, as discussed above. He considered it - absolutely he said - that the Applicant’s PDO work would have aggravated his osteoarthritic condition. In such circumstances I reject a view that the Applicant’s experience of pain in his left thumb is not necessarily indicative of an aggravation of his condition. His pain was no mere temporary occurrence and its duration has been over several years. So the views of Evatt and Sheppard JJ in Commonwealth of Australia v Beattie and of Gyles J in Australian Postal Corporation v Bessey are not, in such circumstances, of assistance. Moreover I am satisfied in this case that the Applicant’s performance of his work did aggravate the condition in his thumb

14. Similarly Mr Kossmann, on whose opinion I also rely, said that the degenerative changes in the Applicant’s first metacarpophalangeal joint on the left side had been aggravated and exacerbated and become painful due to his work. He said the movement the Applicant was performing was a complex one which would aggravate his pre-existing arthritic condition.

15. It was of course the Applicant’s own firm belief that his left thumb became painful due to his delivering mail the way he did as a PDO: flicking letters with his left hand. This view, which I accept as accurate, directly implicates his work as a PDO and thus his employment as the source of his pain. Clearly on this basis, which is one I accept, his pain arose during the course of his employment as such.

16. It is significant I consider also that in his right thumb the Applicant is pain free. Emphasis was given to this by both Mr Buntine and Associate Professor Johnstone. It is fair to say that their evidence could well be different, I think, if the Applicant reported arthritic pain in his right thumb also. But that is not the case. I regarded Mr Stapleton’s rejection of significance in the Applicant’s right thumb being pain-free as far too dismissive.

17. A question was raised in cross–examination about the Applicant’s gym work. Mr Kossmann said he could not exclude aggravation of his arthritic thumb by lifting weights at gym. This remark though I viewed as not very helpful or of great assistance. It does not seem go anywhere directly and is speculative.

18. As against this in any event, Mr Buntine said that he did not believe that the Applicant’s gym work would affect his condition. He said though that it is possible for weight lifting to cause or contribute to osteoarthritis, but it would depend on how the weights are held. In the case of the Applicant, however, he thought he had the skills to do weights and so on without involving his troubled joint.

19. The Applicant’s evidence, which I accept, is that he takes care when doing gym work to avoid exercises that will stress his left thumb. And it might be asked rhetorically: why would he do choose to do exercises he knows will immediately or soon lead to severe thumb pain?

20. Mr Stapleton’s evidence was that the Applicant’s condition was not an injury as such at all. He went on to say that he did not consider the condition by way of cause or aggravation as related to his employment. To add emphasis he said that there was no aspect of his employment that even contributed to the condition. This last point I assume would include the Applicant’s habit of flicking letters when delivering them.

21. Mr Stapleton was expressing an isolated view; one not shared by the other medical professionals in the case, and was by way of assertion without adequate explanation.  It must be weighed along with all the other evidence. Doing that, I am satisfied I should reject his view.

22. I also found Mr Stapleton’s evidence unhelpful on the question of aggravation. Most medical professionals encountered in these cases do not usually have trouble answering questions about aggravation. Yet Mr Stapleton’s evidence on the point was unhelpful. When asked about whether the Applicant’s PDO work would or could have aggravated his condition, he answered it depends on what is meant by aggravation. Mr Stapleton could have been more forthcoming than this.

23. Mr Stapleton did say that the Applicant’s work would cause pain in his thumb. If pain is indeed the most common symptom of an injury (to quote Finkelstein J) then it seems to me that Mr Stapleton’s answer on this point supports a view that the Applicant’s PDO work did aggravate the condition in his thumb.

24. Mr Stapleton also said in evidence that the Applicant would have suffered the condition of osteoarthritis in his thumb whether he worked as a PDO or not. On this basis anyone - whether a PDO or not - could suffer the condition. But we can never know whether the Applicant would have suffered the aggravation of the condition had he not worked as a PDO or had he not flicked letters. But no workplace stipulation prevented him from doing his flicking movement.

25. It may well be true that osteoarthritis is a condition which mainly affects women of postmenopausal age as Mr Stapleton says, however he offers no evidence in support of this contention. In any event he acknowledges it is not unknown in men - which is this very case.

26. The only reasonable conclusion open on all of the evidence is that the osteoarthritic condition in the Applicant’s left thumb was a condition (an ailment) made worse by his work. It did not in my view simply become worse by reason of his work. I refer to the distinction drawn by Mortimer J in Comcare v Reardon [2015] FCA 1166 at [35] where her Honour says that the respondent in that case was correct to accept the distinction between a condition ‘becoming’ worse and being ‘made’ worse by employment. Her Honour said this is critical for the purposes of section 5B of the Act. I apply that distinction in this case.

27. I am satisfied on the evidence as a whole that the Applicant’s employment with the Respondent did significantly contribute to his condition of osteoarthritis in a way substantially more than merely material. This is plain on the evidence. His work made his condition very painful. From being asymptomatic, the Applicant became symptomatic. His work made his condition worse by aggravating it. It was the pain he experienced which showed up his condition. His condition was thus made worse by his PDO work.

28. Important in that regard is the evidence of Mr Buntine, who said he had no doubt on the balance of probabilities that the Applicant’s work with Australia Post caused or significantly aggravated the condition. This was to be attributed to the frequently performed activity of flicking letters thereby placing particular stress on the joint in the left thumb. I follow this view.

29. In effect the same opinion was expressed by the treating specialist, Associate Professor Johnstone. The Applicant’s repetitive movement in flicking letters when delivering them would have significantly aggravated his condition.

30. There is also the evidence of Mr Kossmann that the Applicant’s employment was a significant contributing factor in the aggravation or exacerbation of his degenerative condition.

31. In my view there is nothing else in the evidence which could reasonably be regarded as a significant contributor to the pain of his condition or which led to its aggravation. I do not consider the Applicant’s gym work contributed to it at all.

32. In cross-examination the Respondent argued that the Applicant may have under-estimated the level of the weights he has been lifting at gym. I expressly make no finding about this. Even if so, there was not shown to be any correlation to my satisfaction between osteoarthritis or its aggravation in a thumb and the level of weights one lifts or the level of weights the Applicant has lifted. It seemed to me that the point was entirely speculative in the circumstances particularly given the evidence of the Applicant and the evidence of Mr Buntine.

33. The evidence therefore does not reasonably lead to the view that it was the Applicant’s gym work, rather than his PDO work, that led to his condition being made painful.

    False statement

34. The Applicant must succeed unless he falls under section 7(7) of the Act for making a wilful and false representation as the Respondent contends.

35. Section 7(7) of the Act provides :

    A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.

36. The argument of the Respondent based on this provision focuses on the details the Applicant gave in his claim form set out in paragraph 18 above.

37. It appears from the Respondent’s Submissions that it is concerned with two matters: the date of 1 August 2012 as the date of injury or when the illness was first noticed; and the answer No to the question: had the Applicant claimed compensation before for a similar injury/illness?

38. The consequences of finding a case is made out under section 7(7) are serious indeed. A worker is denied compensation. I consider therefore a case should not be regarded as made out under section 7(7) unless clearly established on the balance of probabilities, and not by reference to the criminal standard of proof.

39. I am satisfied an incorrect date was given by the Applicant as he conceded in cross examination, but I am not satisfied that giving an incorrect date is any representation that an employee did not suffer or has not previously suffered from a disease. To fall within section 7(7) that is the representation which must be conveyed.

40. Giving an incorrect date merely records erroneously when a disease has been or was suffered. It does not represent that it has not been or was not suffered.

41. I express doubts also about whether stating the wrong date on a claim form could be for a purpose connected with the Applicant’s employment. The thrust of section 7(7) is to cover those situations where persons deliberately misrepresent that they have not had a disease.

42. In any event the Applicant has an explanation for the date he gave which is consistent with carelessness (he admitted he had not completed the form carefully) or innocence on his part. He says it arose because he recalled having a cortisone injection into his thumb on 31 July 2012. Even though this was not the first time he had had such an injection into his thumb, this does not establish that giving a wrong date constitutes a wilful and false representation of the kind section 7(7) is aimed at.

43. Nor am I satisfied that the second of the Respondent’s concerns is made out. I am not satisfied that No was a false answer to the question asked—or that it was wilfully false. It is clear that the expression in section 7(7) is wilful and false---not wilful or false. See Wilson and Comcare [1996] AATA 862 at [103].

44. The Applicant is being asked by the question whether he had previously claimed compensation for a similar injury/illness. Although the Applicant had reported left thumb pain much earlier I accept his evidence that he did not know he had the left thumb condition of osteoarthritis until mid-2013.

45. The Applicant had not claimed compensation for osteoarthritis before, and although he had claimed for carpal tunnel syndrome (which claim was rejected) osteoarthritis is not carpal tunnel syndrome. Only in the vaguest or most general way such as by both being painful in the same general area are they similar at all to one another. In reality they are not similar conditions at all, as made clear in the evidence of Associate Professor Johnstone.

46. As discussed, Associate Professor Johnstone said he recalled the Applicant did not know what was actually causing his thumb pain until mid-2013, and he (Associate Professor Johnstone) had difficulty diagnosing the condition until then. Mr Buntine said it was a common phenomenon that a patient might not be able to distinguish between pain from osteoarthritis and pain due to carpal tunnel syndrome. As they are in the same area (although technically distinct) this seems understandable.

47. The Respondent seems to argue that the Applicant must have known he had had left thumb symptoms as far back as May 2011 at the time he completed his claim form. The significance of this point is not made clear.  Even if he did know back then that he had left thumb symptoms, how is the pain at that time a similar injury/illness? Those symptoms in fact turned out to be the condition of osteoarthritis. The injury/illness in 2011 would not be similar—it would be the same: osteoarthritic pain in his left thumb that was made worse by work. So his answer No is correct on this basis.

48. Equally, if I take it that it is being argued that the Applicant did suffer a similar injury/illness by way of carpal tunnel syndrome then the answer to that seems to be that the osteoarthritis and carpal tunnel syndrome are not similar but are in reality quite distinct, as Associate Professor Johnstone said in evidence. So the answer No would again be correct.

49. His injury/illness is diagnosed as osteoarthritis. This is a diagnosis I am satisfied was formally made only in mid-2013. And as I have pointed out, it was not claimed by him by way of compensation before that time, as the question stipulates. So his answer of No --on this aspect of the question was correct also.

1. It was not made clear to me either how could he self-diagnose in October 2013 that previously he was suffering from osteoarthritis. He might know the pain was similar but the Respondent has nowhere established that the Applicant had the expertise to know the injury/illness was similar. Indeed, as discussed above, carpal tunnel syndrome and osteoarthritis are two different conditions.

2. In any event I express doubts, that in answering No to the question concerned the Applicant was making any representation for purposes connected with his employment. His purposes were connected with his injury/illness.

3. As regards either of the concerns raised by the Respondent, I am not satisfied the Applicant falls within section 7(7) of the Act.

4. Accordingly I reject the argument.

   Exclusion

5. The Applicant also must succeed unless he is defeated by section 53 which the Respondent relies upon as well.

6. Section 53 of the Act provides:

   (1)  This Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority:

   (a) as soon as practicable after the employee becomes aware of the injury;

   (3)  Where:

   (a) a notice purporting to be a notice referred to in this section has been given to the relevant authority;

   (b) the notice, as regards the time of giving the notice or otherwise, failed to comply with the requirements of this section; and

   (c) the relevant authority would not, by reason of the failure, be prejudiced if the notice were treated as a sufficient notice, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause:

   the notice shall be taken to have been given under this section.

7. I am not entirely clear about the Respondent’s submissions based on section 53. I understand their intention but I do not quite follow the argument advanced.

8. The Respondent seems to argue that for section 53 to apply it is not necessary for injured employees to know the precise diagnosis of their condition. It is then asserted that in, for example, January 2013, the Applicant was able to distinguish between the symptoms he was experiencing in his left thumb due to osteoarthritis and those he was experiencing due to carpal tunnel syndrome. It seems to be submitted that this was so for a portion of the year in 2012 also. He thus should have given notice earlier than he did. The fact that he did not do so has thereby prejudiced the Respondent. Therefore the Applicant is precluded under section 53(2) of the Act.

9. I do not agree with this submission if that is what is put. In saying that I bear in mind the beneficial effects of the Act (see Abrahams v Comcare [2006]FCA 1829 at [18]) and the consequences which follow if there is a failure to give a section 53 notice

10. In my view section 53(1) is not happily expressed in referring solely to the injury.

11. I would agree with the Respondent that it is not necessary for injured employees to know the precise diagnosis of their condition were it not for Parliament’s use of the definite article: the. I note the reference to the same or substantially the same in Georgoulas and National Australia Bank Ltd [2013] AATA 512 at [64]. In that regard I should indicate I can see no legislative warrant for reading the injury as equivalent to substantially the injury.

12. In other words, I cannot agree with the Respondent’s submission that it is sufficient alone if applicants know they have a condition for which notice of injury is required to be given. Notice must be given of the injury, which may not be the injury of which applicants think they should give notice. Were it not required that they give notice of the injury; applicants might thereby give notice of an injury they have not suffered or that they wrongly think they have suffered and that would be of no utility. For why would the relevant authority want to be notified of an injury not suffered?

13. It is not notice of the approximate injury or notice of the general injury of which must be given: it is notice of the injury which must be given. This is also made clear by the requirement being stated to be one to give notice after the employee becomes aware of the injury. It is not a matter of merely becoming aware of being injured, it is a matter of becoming aware of the injury and then of giving notice of that injury: namely, the injury in question.

14. I consider therefore that for section 53(1) to operate the injured employee must know the exact or precise injury. Near enough is not good enough on this occasion.

15. As I have indicated I am not satisfied that the Applicant was aware of the injury in his case until about mid-2013. It is recorded in Associate Professor Johnstone’s rough notes that the Applicant reported L Basal joint pain 2/12. I cannot see from this how it can be argued that he knew then that he was suffering osteoarthritis in his left thumb. All those notes record is joint pain, and that is not necessarily indicative of osteoarthritis.

16. Even Associate Professor Johnstone had difficulty diagnosing osteoarthritis until about mid-2013 I have noted as well that Mr Buntine indicated it may be common for a patient to be unable to distinguish between osteoarthritic pain and pain from carpal tunnel syndrome.

17. If all this is so then it would be an unreasonable burden on the Applicant to say that section 53(1) requires him to be ahead of his treating surgeon (Associate Professor Johnstone) and notify of his left thumb osteoarthritis before mid-2013 or in 2012. How is it put by the Respondent that he should have known to do so if his own treating doctor had not yet diagnosed the condition? How could he know more than him? This would be an absurd reading of section 53(1) in my view. The Respondent, if contending this, does not explain or argue its position.

18. If the Applicant should have given notice earlier than he did, which I do not agree with, I am unable to see how the Respondent is prejudiced by his failure to do so.

19. The essential prejudice is said to be the difficulty in investigating and examining the applicant contemporaneously with the onset of symptoms. Reference is made to the well-known observations of the High Court in Brisbane South Regional Health Authority v Taylor (1996) 188 CLR 541 at 551.

20. I cannot see what in reality the Respondent would have done differently had it been notified earlier and that, not some abstract notion, is the real test of prejudice. Merely alleging difficulty in investigation and examining, without going into further detail with facts, is not showing prejudice on any reasonable analysis.

21. The Respondent’s submissions lack detail in facts alleged. What might a specialist have been able to report on differently to Mr Stapleton? Mr Stapleton saw the x-rays and examined the Applicant’s thumb. What else could he have done from a medico-legal perspective? Nothing suggests itself and nothing moreover was explained or detailed.

22. How else then could the Respondent have been disadvantaged? Nothing further was argued. From which I assume there was nothing else to argue.

23. I reject the argument therefore that section 53 of the Act applies.

Conclusion

1. I am satisfied for the reasons I have given that the Applicant’s injury is a compensable one under the Act.

2. Accordingly, the decision under review must be set aside.

133.    I certify that the preceding 132 (one hundred and thirty-two) paragraphs are a true copy of the reasons for the decision herein of Dr Damien Cremean (senior member)

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

Associate

Dated 8 April 2016