Martin and Australian Postal Corporation
[2000] AATA 577
•13 July 2000
DECISION AND REASONS FOR DECISION [2000] AATA 577
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/890
GENERAL ADMINISTRATIVE DIVISION )
Re JOHN MARTIN
Applicant
And AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Senior Member Ettinger
Date13 July 2000
PlaceSydney
Decision The Administrative Appeals Tribunal ("the Tribunal") sets aside the decision of the Australian Postal Corporation, the Respondent, dated 30 May 1996 which was affirmed by the Reconsideration Section of the Australian Postal Corporation dated 21 August 1996 to deny liability in respect of the Applicant's claim for compensation for his right shoulder injury. In substitution therefor, the Tribunal finds that the Applicant was incapacitated for work due to a compensable injury for the period 23 June 1997 until 21 July 1997. The Tribunal remits the matter to the Respondent for calculation of the amount of compensation. Costs to be calculated pursuant to the Tribunal's Practice Direction.
..............................................
Ms G Ettinger
Senior Member
CATCHWORDS
Workers compensation – aggravation or acceleration of a degenerative disease – period of incapacity
LEGISLATION
Safety Rehabilitation and Compensation Act 1988 – s 4(1), 4(9), 14, 16, 19, 24 & 27
CASES
Jones v Dunkel (1959) 101 CLR 298
REASONS FOR DECISION
13 July 2000 Senior Member Ettinger
BACKGROUND
The appeal of the Applicant, Mr John Martin, in the proceedings before the Administrative Appeals Tribunal ("the Tribunal") was by way of remittal from the Federal Court of Australia to which he had appealed as a result of a decision made on 19 December 1997 by Senior Member Allen of this Tribunal. A cross-appeal was lodged by the Australian Postal Corporation, the Respondent, in these proceedings.
The Federal Court stated its task as follows:
"In this appeal and cross-appeal so called, from a decision of the Administrative Appeals Tribunal in respect of a claim made by the applicant for compensation under the Safety Rehabilitation and Compensation Act 1998, two broad issues arise. One, the subject of the appeal, is whether the Tribunal erred in law when it found the applicant's disabilities had not, "except whilst [he was] undergoing surgery on his right shoulder and recuperation from surgery", resulted in "any inability to work" (as to which see s 4(9) of the Act). The other, the subject of the cross-appeal is whether the Tribunal erred in law when it found the applicant had suffered permanent impairment for which he was entitled to compensation under secs 24 and 27 of the Act."
The decision of Burchett J which was handed down on 14 May 1999 found as follows: "… the appeal should be allowed with costs, and the cross-appeal should be dismissed with costs."
The decision under review by the Tribunal then was the decision made by the Respondent, Australian Postal Corporation, dated 30 May 1996 to disallow the Applicant's claim in respect of a right shoulder injury pursuant to section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 ("the SRC Act") as affirmed by the Reconsideration Section of the Australian Postal Corporation dated 21 August 1996.
Senior Member Allen of the Tribunal, who heard the appeal from the decision of the Australian Postal Corporation, found on 19 December 1997 that the Applicant suffered a compensable 10% whole person permanent impairment (sections 24 & 27 of the SRC Act). Senior Member Allen found that Mr Martin was entitled to his medical expenses pursuant to section 16 of the SRC Act, and compensation for loss of income while he was undergoing the surgical procedures carried out by Professor Murrell in 1997 and recuperating. The formal decision was as follows:
"The decision under review is set aside and this matter is remitted to the Respondent with the following directions, namely:
1.THAT the Applicant's subacromial impingement and glenohumeril arthritis of the right shoulder are work caused injuries;
AND THAT he is entitled to compensation pursuant to the Safety Rehabilitation and Compensation Act 1988 and in accordance with these reasons.
2. The Respondent is to pay the Applicant's costs."
As the cross-appeal was dismissed by Burchett J and not pursued further before this Tribunal, I did not have to deal with any issue pertaining to the Applicant's permanent impairment.
At the Tribunal, the Applicant was represented by Mr M Perry of counsel who was instructed by Mr M. Fishburn of Fishburn Watson O'Brien. The Respondent, Australian Postal Corporation ("Australia Post") was represented by Mr G Johnson of counsel who was instructed by Ms H. Dejean of the Australian Government Solicitor.
ISSUES BEFORE THE TRIBUNALThe issues before the Tribunal were whether:
(a)The Applicant's injuries resulted or result in any incapacity for work pursuant to section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 ; If so,
(b)The extent and period of any incapacity for work; and
(c)Any amount of compensation to which the Applicant may be entitled for any incapacity for work resulting from the injuries suffered by him.
LEGISLATION
The relevant legislation in this matter is the Safety, Rehabilitation and Compensation Act 1988 ("the SRC Act").
Section 4 of the SRC Act provides, as relevant:
"4. (1) In this Act, unless the contrary intention appears:
...
"injury" means:(a)a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment;"
"disease" means:
(a)any ailment suffered by an employee; or
(b)the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation;
...
4. (9) A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:(a) an incapacity to engage in any work; or
(b)an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.
…"
Section 14(1) provides that:
"Compensation for injuries
14. (1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment."
EVIDENCE BEFORE THE TRIBUNAL
The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 as listed below:
ITEM DATE NAME
Appeal Book including exhibits before the Tribunal in decision of 19 December 1997; T-documents; transcript 1997 – 1999 Exhibit A1
Folder of Applicant's job applications and other job advertisements collected by the Applicant Undated Exhibit A2
TAFE Statement of Attainment in Work Skills received by the Applicant July 1997 Exhibit A3
Medical report of Professor G Murrell 14 September 1999 Exhibit A4
Applicant's taxation documents 1990 to 1994 Exhibit A5
Documents from Illawarra Area Health Service received on summons Various Exhibit R1
Letter by Applicant addressed "To Whom It May Concern", including a summary of events 12 May 1998 Exhibit R2
Surveillance Video of the Applicant 18 November 1999 Exhibit R3
Surveillance Videos of the Applicant 22 February 2000 Exhibit R4
Australia Post publication "All in a Day's Work" February 1998 Exhibit R5
Medical report of Dr R Brooks 27 April 2000 Exhibit R6
Medical report of Dr R Brooks 31 March 2000 Exhibit R7
EVIDENCE OF THE APPLICANT MR JOHN MARTIN
Mr Martin, whose date of birth was 23 December 1940, and who is married, joined the Australian Postal Corporation in February 1989 as a Postal Delivery Officer ("PDO"), and resigned on 12 November 1992. He said that he had previously been a miner. He had joined Panasonic Australia Limited ("Panasonic") on 25 June 1993, and after he ceased working for them, was obliged as part of being registered with Centrelink, to search for employment and report fortnightly. Mr Martin agreed in cross-examination that the reasons for leaving Panasonic were not related to his shoulder.
Mr Martin said that he had applied for hundreds of positions and he could not remember all of them. He had kept some copies of advertisements and some business cards because Centrelink could contact companies to check on employment applications. Mr Martin said that he had even paid out $400. and obtained a taxi licence on 25 August 1994 but had never sought employment in that field nor driven a taxi because of his shoulder. When questioned about the difficulties he would face with driving a taxi, Mr Martin said:
"Sitting – sitting and arm movements, shoulder movement by turning the wheels, and sitting in a position which would affect my previous injury to my neck, plus shoulder of course. Shoulder – because, you know, shoulder as you're driving a car as everybody knows, you have constant movement on the steering wheel going around corners ... that would be unrealistic for me to do that."
When questioned about why he had applied for mining and stevedoring jobs when he said he could not do such work, Mr Martin said that there were no jobs listed in his folder which he could do, but he knew that given Centrelink's requirements, he had to seek work even if he didn't accept employment.
When asked in cross-examination why he had left Australia Post, he said: "I was harassed out of the job." Mr Martin said that he could not recall saying on an earlier occasion before the Tribunal that had it not been for the harassment, he would have been happy to remain a PDO until retirement. Rather, Mr Martin gave evidence that he would have been happy to work until he was unable to perform his duties as a postal officer namely, sorting.
"I can see the possibility that I could have carried on for another six or nine months or maybe twelve but then my shoulder would have been to, at that stage, would have been in such a condition that I would have had to probably go on compensation."
Mr Martin also said that he did a work skills certificate at TAFE in July 1997, a forklift course, just to get out of the house. He said that it was paid for by the Government, and that he had not contemplated employment in that field due to his shoulder injury.
Mr Martin gave oral evidence that he worked with the Illawarra Area Health Service from July 1997 to 19 April 1998. Mr Martin said that it was casual employment, a Government funded course to assist the unemployed. He said that it was a 20 week course,
"... which obliged us to do a certain amount of hours in the class room … one day a week was classroom, and the rest was basically like an apprenticeship, you were there to observe nursing staff in their capacity of nursing patients".
I noted at Exhibit R1 that the course was funded by the Department of Employment, Education and Training and commenced on 7 April 1997. It was scheduled to conclude on 22 August 1997. I also noted that the course required participants to work 38 hours per week for which they were paid $321.00 in training allowance.
Mr Martin said that the course had been interrupted by his operation on 23 June 1997. This was corroborated in the Illawarra Area Health Service's Staff Resignation/Termination form dated 16 June 1997 which documented that Mr Martin "resigned from the course due to impending surgery" (Exhibit R1).
Mr Martin gave evidence that he had not been fit for work after the operation. He said that he returned to the Illawarra Area Health Service on 6 August 1997 (sic) to assist as far as he could but said that the employer knew about his right shoulder. However, I noted that the records of the Illawarra Area Health Service at Exhibit R1 documented that Mr Martin recommenced working there on 21 July 1997. Mr Martin said he used his right arm as little as possible, and when questioned about lifting patients, said no patient could be lifted by just one person. He also said that his duties included collecting rubbish, assisting the nursing staff, lifting patients and pushing patients in wheel chairs to the toilet or shower.
Mr Martin said that the reason for finally leaving the Illawarra Area Health Service was that there was no further work available. I noted the reply of the Illawarra Area Health Service dated 12 October 1999 (Exhibit R1) to the inquiry by Fishburn Watson O'Brien that the reason for Mr Martin's cessation of employment was that there was "nil work available" and also noted that the date of termination was 19 April 1998.
Mr Martin, in his oral evidence, also said that he had no intention to undertake full-time employment because he did not wish to aggravate his shoulder. He was angry because as he saw it, Australia Post had ignored him for three years while the shoulder deteriorated. He said the mental boredom of not working was the hardest thing, particularly as he had worked for 38 years, starting at age 15. When it was suggested to him that he exaggerated his condition, Mr Martin denied that was so. When asked what work he could so, Mr Martin suggested he could pack frozen meat pies onto a tray with his left hand. He had in fact done so at a bakery for three or four days in 1994.
Mr Martin was cross-examined about the visit to Dr Brooks and the report of Dr Brooks of 31 March 2000 where the doctor recorded that inquiries as to Mr Martin's activities yielded very little. Dr Brooks had recorded that Mr Martin did "nothing". Mr Martin disagreed with various points as recorded by Dr Brooks, in particular that Dr Brooks had recorded that Mr Martin occasionally went for a drive to the coast.
Mr Martin was then cross-examined in relation to surveillance video footage which had been taken, and about how far he could reach above shoulder level (Exhibits R3 and R4).
Mr Martin was shown a brochure All in a Day's Work Delivery (Exhibit R5) and questioned about the tasks he could do. I was mindful that the activities depicted on page 5 involved a man seated and then standing in front of a National Standard Large Letter Vertical Sorting Division undertaking the primary sorting of large letters. The activities depicted on page 8 involved a man seated at PDO Table undertaking the primary sorting and sequencing of mail. When shown activities depicted on pages 5 & 8 of the brochure, Mr Martin said that he could not do any of those. He was hesitant in his evidence and appeared to find it difficult to quantify amounts and times for sorting but said that approximately 50% of the sorting into the pigeon holes shown in Exhibit R5, involved raising his right arm above shoulder level or higher. I noted that Mr Martin gave evidence at the earlier proceedings before the Tribunal that sorting was "major time consuming - it consumes … most of the time as a post officer". Mr Martin disagreed when it was put to him that he was exaggerating his restrictions.
When questioned about the findings of Dr Brooks, which were that the Applicant could work, Mr Martin said that Dr Brooks was entitled to his opinion, and besides he was a knee surgeon. He also disagreed with the opinion of Dr Murrell he said because Dr Murrell had said that he could work provided he did not do heavy lifting or reaching up.
When questioned about what medication he took, Mr Martin replied: "I don't believe in clogging up my system with drugs." He said he would rather put up with the nagging pain, and because he had irritable bowel syndrome he felt medication could upset his condition.
Mr Johnson then asked Mr Martin about whether he had been injured playing touch football while he was employed at Panasonic. He agreed that as a result of such injury he had an operation performed on his right arm. He stated that he did not injure his shoulder but said that he had hit his "bicep muscle … in the elbow at waist height."
Mr Martin then gave evidence of being unfairly treated by Australia Post, and said he had been protesting by erecting banners. When questioned about whether he had erected the banner using his right arm above shoulder level, Mr Martin said that it was his left arm.
Mr Martin also said: "I have a high tolerance of pain.. I don't dwell on it."
Mr Martin said he had not had a job since he left the Illawarra Area Health Service, and had been in receipt of the Disability Support Pension ("DSP") since 1998. When it was suggested to him in cross-examination that he had not worked because he was not prepared to work full-time, Mr Martin said that if his shoulder could be returned to its pre 1990 condition, he would work as a miner, but that was "pie in the sky". Mr Martin also said that, in his present state, he could not do any work at all.
VIDEO SURVEILLANCEThe Tribunal saw Mr Martin captured on video surveillance taken on 18 November 1999. He was depicted using his right hand to access food from supermarket shelves. He was also depicted walking home from the supermarket carrying a bag with his purchases from the supermarket, which he said took 15 minutes. Mr Martin said that the bag did not weigh more than five kilograms.
A second video was taken on 22 February 2000, depicting Mr Martin engaged in his protests about Australia Post outside the Strawberry Hills post office. He said that was to shame Australia Post for the treatment he had received for seven years.
I noted that Mr Martin used his right arm to raise his protest banner when he put it up, and that he raised his right arm well above his head. My assessment of Mr Martin's movement based on what I saw on the video was that he was depicted putting up a banner, hammering a steel peg into the ground, and using both arms in an unrestricted way.
When this was put to Mr Martin, he replied that an able bodied person would have had the banner up much sooner. When questioned about any pain he might have suffered while putting the banner up, Mr Martin said that his protest was more important to him than a bit of discomfort.
EVIDENCE OF DR R BROOKS ORTHOPAEDIC SURGEONDr Brooks, whose reports of 7 April 1997, 27 November 1997 (Appeal Book 232) and 31 March 2000 (Exhibit R7) and 27 April 2000 (Exhibit R6) were before the Tribunal, gave oral evidence. He had also seen the video surveillance evidence of the Applicant, and reported on it at Exhibit R6.
Dr Brooks, in his report dated 7 April 1997, diagnosed Mr Martin as:
"experiencing an impingement syndrome of the right shoulder with associated calcific tendonitis. He is also developing degenerative change in the gleno-humeral joint itself.
These conditions are not post-traumatic in nature, but are of a constitutional basis. Calcific tendonitis is typically of spontaneous onset, and is not caused by isolated traumatic events ….
On the balance of probabilities these conditions are of a constitutional basis and have progressed in a natural manner, and have not been influenced by Mr Martin's employment. It is unlikely that his current shoulder condition would be any different had the three motorcycle accidents he described not in fact occurred."
Dr Brooks, commenting on his view of the video evidence, said that it depicted more overhead activity than Mr Martin had demonstrated at physical examination. He said that he observed Mr Martin moving without restriction on the video, and that he used his arm freely and in vigorous activity to put up the banner.
Dr Brooks opined that Mr Martin could carry out the work activities shown in the brochure (Exhibit R5), with the exception of motorcycle riding. He said that physically Mr Martin would be able to ride a motorcycle but that there was a slight safety risk in case of sudden shoulder pain, and it was therefore to be avoided. Dr Brooks said that the sorting of mail using pigeon holes/frames was suitable for the Applicant.
Dr Brooks opined that Mr Martin could work provided he did not have to do lifting of more than 15 kilograms. I noted, however, that in his report at Exhibit R7, he had reported the lifting should be restricted to five kilograms. When asked whether Mr Martin could do repetitive or constant work above the shoulder, Dr Brooks answered:
"Well, I think it if were mixed in with work below shoulder height, some amount of overhead work with light objects would be reasonable, but no, I wouldn't recommend that it be constant overhead work."
Dr Brooks was also questioned about whether Mr Martin's work capacity had changed between April 1997 and November 1997. He replied that there had been a report of some improvement and a revision in diagnosis. Dr Brooks said that the additional diagnosis after Mr Martin's operation was now glenohumeral arthritis and therefore the advice regarding what work he could do differed.
Dr Brooks, in his report dated 27 November 1997, opined that
"It is most unlikely that the several isolated jarring forces experienced by Mr Martin in his motorbike accidents caused the development of gleno-humeral arthritis, which is an age-related condition, largely constitutional but possibly related to prolonged heavy labouring work in earlier years."
Mr Johnson questioned Dr Brooks about his recording of no muscle wasting (Exhibit R7) in Mr Martin. Mr Johnson: "…. that the lack of muscle wasting adds support to the view that he's less disabled than his statements imply…" Dr Brooks replied as follows:
"… there wasn't muscle wasting and the limb was larger than the other side which is consistent with being right hand dominant but it certainly didn't suggest that there was any significant level of sparing from activity."
In conclusion, Dr Brooks said that notwithstanding that pain is a very personal and individual thing, the amount of objective pathology based on examination such as the lack of wasting, the range of movement and the x-ray findings led him to think it unusual that the Applicant had so much pain that he could not sort mail. Dr Brooks also said that the arthritis had progressed and would continue to do so. When questioned as to the duration of a previously asymptomatic condition which was made symptomatic by an accident, Dr Brooks said:
"I think if I made that assumption I would say three months from the accident for that type of worsening to settle again … you do see people with arthritic joints who jar them and have increased pain and it usually settles down within that time-frame … there is certainly some fluctuation in symptoms that people may attribute to … a stumble or some sort of minor jarring force."
Dr Brooks, in his report at Exhibit R7, also opined:
The above comments relate to the physical aspects of Mr Martin's condition. However, he makes it quite apparent that he has no intention of seeking further employment. He raised a number of reasons why he would not be able to work in the future, including that nobody would wish to employ him, given his history of various orthopaedic ailments. He made much of the degree of pain he suffered, and advised that he would refuse to work unless the medical profession could give him a guarantee that he would not feel any pain."
EVIDENCE OF PROFESSOR G MURRELL ORTHOPAEDIC SURGEON
Professor Murrell, whose reports dated 14 September 1999 (Exhibit A4) and 12 March 1997 (Appeal Book 223), were before the Tribunal, gave oral evidence by telephone.
In evidence given previously before the Tribunal on 5 December 1997, Professor Murrell said that following the arthroscopic acromioplasty he had performed on 23 June 1997, he diagnosed Mr Martin's shoulder problems as arising from two causes: "One is the glenoid humeral joint arthritis and the second was impingement syndrome associated with calcific tendonitis."
In the current proceedings, Professor Murrell said that after seeing the video evidence, his opinion did not change from that expressed in Exhibit A4. Professor Murrell said that he considered the Applicant could walk, and carry a five kilogram bag and also put up a banner. He said that Mr Martin could do some overhead activities, particularly when the tasks were not overly difficult.
Professor Murrell agreed that Mr Martin did not show any indication of painful limitation of the right upper limb function in the video taken at the supermarket. He also agreed when questioned by Mr Johnson that there was no evidence in the video of any restriction of function of the right upper limb or shoulder at least for activities up to shoulder height and light to moderate loads. Professor Murrell also agreed that there was no muscle wasting in Mr Martin's shoulder.
Professor Murrell further agreed with Mr Johnson that in the second video, there was no sign of distress from Mr Martin while putting up the banner. Neither was there demonstrated an inability to perform the task as a normal right handed person would do.
Professor Murrell said that he had operated on Mr Martin's shoulder on 23 June 1997, and performed an arthroscopic acromioplasty. On review of his notes and reports, Professor Murrell opined that Mr Martin could sort mail for half an hour or an hour, but could not sort mail at or above shoulder height for four to six hours, "… I think it would be unlikely that he could go back and do that type of work on a regular basis at this point in time."
When questioned about whether Mr Martin could then perform his mail sorting duties, Professor Murrell answered:
"I should say that I have managed several patients whose work involves mail sorting and who have had similar problems and they always seem to have difficulty performing their job at the level they're expected to, because my understanding is that they have to – they call it streaking, they have to streak a certain number of letters over an hour and have times to meet and it is a reasonably stressful job for the shoulder… they're doing a lot of activities repetitively fairly fast…"
Professor Murrell said that he thought the Applicant could not return to the level of work he had been doing in 1992, even though he had improved somewhat after the shoulder surgery. Professor Murrell said Mr Martin would be able to put his arm above his shoulder from time to time, but that it was "unlikely that he's going to be able to perform in a job that involves overhead work", especially consistent overhead activity. He also said that Mr Martin should not lift more than 15 kilograms.
As to the arthritis; Professor Murrell was asked whether Mr Martin's falls had aggravated his arthritis to which the Professor answered that the falls either initiated or aggravated the arthritis.
Professor Murrell disagreed with the opinion of Dr Brooks when told the latter had said that Mr Martin's motorcycle accidents could have unmasked a previously asymptomatic glenohumeral arthritis but that any effect of that would only have lasted some three months or so.
SUBMISSIONSHaving heard the Applicant and the medical evidence, I had to take into account the legislation, submissions of the parties and relevant case law to decide whether:
The Applicant's injuries resulted or result in any incapacity for work;
The extent and period of any incapacity for work; and,
If so, the amount of compensation to which the Applicant is entitled for any incapacity for work resulting from the injuries suffered.
Mr Perry submitted on behalf of Mr Martin that a finding had been made about a work related injury and resultant compensation as well as a finding regarding permanent impairment which should not be disturbed. I am mindful that there was no evidence led regarding the 10% permanent impairment that Senior Member Allen had found, and an appeal regarding the permanent impairment had been dismissed by the Federal Court. There was no issue regarding permanent impairment before this Tribunal and I accepted an award of 10% whole body impairment had been made.
Both counsel submitted that at the previous Tribunal hearing, Senior Member Allen had found that Mr Martin had suffered a compensable injury, and that the question before this Tribunal was whether there was continuing incapacity as a result. Mr Johnson submitted and I accepted that the Tribunal could, if it found a period of incapacity for work, remit the matter to the Respondent for calculation of the amount of compensation due to the Applicant.
Mr Johnson submitted as follows:
"…it is open on the evidence for you to find that there was no continuing injury past the three months, but that does leave the question of there being an anomaly with the past Tribunal decision and so what I will do if the Tribunal pleases, is proceed without concession to address the Tribunal upon the assumption that the Tribunal will accept, as did the past Tribunal, injury and continuing injury and that the Tribunal be more concerned with the question of whether that results in any incapacity for work and if so, the extent of the incapacity for work and the period of incapacity for work."
Mr Johnson emphasised that Mr Martin had been able to continue working at Australia Post until his resignation on 12 November 1992 for reasons other than his shoulder. Mr Johnson referred to the evidence of the Applicant given in the Federal Court where he had indicated that he resigned as a result of what he felt was harassment. I noted at Exhibit R2 that Mr Martin wrote:
"I resigned from Australia Post where was I employed as a Postal Delivery Officer at the Brookvale Branch. I resigned because of extreme stress and frustration at the constant rorts, fraudulent behaviour of staff and nepotism that was taking place."
It was clear then that Mr Martin had not resigned from Australia Post for reasons related to his shoulder.
The evidence before me was that four days after leaving Australia Post, Mr Martin joined Panasonic as a driver, and remained there until his resignation on 25 June 1993. Mr Johnson submitted that Mr Martin had not left his position at Panasonic for reasons of his shoulder. He submitted that I prefer the contemporaneous documentary evidence regarding the reasons for Mr Martin leaving Panasonic. Mr Perry did not dispute the matter on behalf of the Applicant, and I am mindful of the evidence given about the situation and accepted the reasons as stated in Mr Martin's letter dated on or about 25 June 1993 to the Managing Director of Panasonic as the reason why he resigned from that company. I accepted Mr Johnson's submission that Mr Martin's shoulder was not implicated in that decision.
Mr Martin was employed by the Illawarra Area Health Service on 7 April 1997 for a 20 week Government funded program. The evidence was that he left in connection with his shoulder surgery which took place on 23 June 1997, returned on 21 July 1997 and continued working until April 1998. Mr Johnson submitted that Mr Martin could have continued with the duties which he was doing at the Illawarra Area Health Service where he stated that he favoured his right shoulder in carrying out his duties. Mr Martin had told the Tribunal that patients were not lifted by one person alone, and that he had assistance or that he assisted to move patients and where necessary used a hydraulic lift to do the lifting. He was able to perform his other duties, which he detailed adequately. I accepted the evidence of the Applicant and Mr Johnson's submission that the Illawarra Area Health Service position had come to an end because it had been a funded position which concluded, and not for any reason related to the Applicant's shoulder.
Mr Perry acknowledged that notwithstanding difficulties with his shoulder, Mr Martin's incapacity had not commenced during his time at Australia Post or Panasonic. He agreed when I put it to him that findings had been made by the previous Tribunal that Mr Martin's resignation from Australia Post did not have anything to do with his shoulder. Mr Perry told me that although Mr Martin had suggested to another hearing that his shoulder was relevant to his resignation from Panasonic, that had not been accepted.
Mr Johnson submitted that Mr Martin had not made a genuine effort to seek employment within his restrictions. He referred to the evidence given by Mr Martin about his job seeking, and submitted that Mr Martin had only "applied" in compliance with CES/Centrelink requirements for the recipients of income support. Mr Johnson submitted that Mr Martin had only made perfunctory efforts to apply for jobs which he would not, in any case, have accepted had they been offered. From the oral evidence of Mr Martin and his folder regarding applications at Exhibit A2, I agreed. I also noted the comments of Dr Brooks with regard to Mr Martin's attitude to employment which were as follows:
The above comments relate to the physical aspects of Mr Martin's condition. However, he makes it quite apparent that he has no intention of seeking further employment. He raised a number of reasons why he would not be able to work in the future, including that nobody would wish to employ him, given his history of various orthopaedic ailments. He made much of the degree of pain he suffered, and advised that he would refuse to work unless the medical profession could give him a guarantee that he would not feel any pain." (Exhibit R7)
Mr Johnson also said that Mr Martin was asked at the Federal Court hearing whether he felt he would have been able to do the sorting component of his job, and that the Applicant answered "I would think so, yes." Mr Johnson submitted that Mr Martin had, in his evidence before this Tribunal, also acknowledged that he had not had time off work in relation to his shoulder. I also noted that Mr Martin said at the Federal Court hearing that if he had to lift heavy mail bags or extend his arm above shoulder height that would probably be a problem.
In summation on this point, Mr Johnson directed my attention to the evidence before the Federal Court, submitting that:
Mr Martin had taken no time off work following the 1990 injury and did not see a doctor until later in the year; He did not take any time off work except for what he described as stress.
Mr Martin described his injury to his shoulder as being like a bruise. In this respect, I noted that Mr Martin gave evidence about the 1990 injury in which he described his injury as a "slight nag in my pain … [and] put it down to just a bruise."
From late 1990 and into 1991, Mr Martin received no medical treatment. He told the hearing at the Federal Court that he didn't seek treatment for his shoulder at that time because "I would probably be one of the worst medicine takers and I don't enjoy cortisone needles."
Following the motorcycle accident in 1991, Mr Martin said that he walked the motorcycle back to the Brookvale Depot because it was damaged and no longer roadworthy which took about half an hour. When he arrived he used another motorcycle to finish his rounds.
Mr Johnson submitted that:
"… put simply, there is certainly evidence before this Tribunal … that the applicant was not restricted, in fact, by his shoulder from doing his work or any part of his work at the time that he was working for Australia Post to the extent of producing any incapacity for work."
Mr Perry conceded that the incapacity the Applicant suffered arose in late 1993 or early 1994 after he had left the employ of the Respondent. Mr Perry submitted that Mr Martin's shoulder condition started to deteriorate after he left Panasonic, documented by a visit to Dr Longhurst on 6 October 1993 as follows (Appeal Book 44):
"… he recounted having the accident some 3 years earlier, injuring his right shoulder, and having continuing problems with it.
Examination at the time revealed substantially painful extension, with a normal range of movement possible. No tenderness was elicited."Mr Perry acknowledged that Mr Martin's arthritis was a progressive disease. He referred to the decision of the previous Tribunal, citing with approval, and seeking to rely on paragraph 30 of Senior Member Allen's decision to establish a date for the commencement of Mr Martin's incapacity. I noted that Senior Member Allen stated at paragraph 30 that:
"In hindsight it is impossible to say when exactly the Applicant's symptoms would have manifested themselves had the motor cycle accidents (particularly the first one) not occurred. Although I reject Dr Murrell's version of the motor cycle accident, given his opinion it is not possible to say that apart from making a previously asymptomatic condition symptomatic that the accident or accidents did not add their measure to the conditions in a material degree so as to cause and aggravation or acceleration of the said conditions."
Towards the end of the hearing, Mr Perry submitted, in the alternative, that the Applicant was totally incapacitated for work but added that although this proposition did not have the support of any medical practitioner, it should be considered seriously. He described the Applicant as "too honest… he is an excitable irascible man."
SUBMISSIONS ON THE MEDICAL EVIDENCE
Mr Perry and Mr Johnson both made submissions about the medical evidence. It was undisputed that Mr Martin had undergone surgery by Professor Murrell for his shoulder on 23 June 1997.
I noted Mr Perry's submission that Mr Martin had been referred by the Respondent to examination by Dr Sonnabend, orthopaedic and shoulder surgeon, but that the report had not been tendered in evidence with the resulting Jones v Dunkel (1959) 101 CLR 298 implications.
Mr Johnson referred to the evidence of Dr Brooks who had opined that if indeed the injury had unmasked a previously asymptomatic condition, then the effect of that would have resolved within three months. He submitted further that Dr Brooks stated that the glenohumeral arthritis Mr Martin was found to be suffering was constitutional. On Dr Brooks' view, the injury was compensable only for a closed period Mr Johnson submitted.
However, when Dr Brooks was giving his oral evidence, I asked him how he had come to change his diagnosis and he replied:
"… I think we knew from the outset that there were two pathologies in the shoulder joint, there were features of arthritis present, but the examination and the symptoms of pain with overhead elevation suggested the presence of impingement as well and there was some calcification in the rotator cuff tendon which can cause impingement. Impingement, of course, is something that's treatable when a humeroulnar arthritis at that stage, there's no surgery for it really. So I think with some sense of optimism it was felt that, well, let's treat the impingement and see what improvements will follow, and I think that was perfectly reasonable. But, you know, whereas most people who have impingement will get a good recovery quite promptly, in this case, there hasn't been a lot of improvement and I think that, well, the symptoms the patient is describing one must attribute to the arthritis … I have commented myself, I think the amount of pain and disability the patient described is more that I would normally expect for that degree of arthritis."
In addition, Dr Brooks also commented on the origins of the diagnosis:
"… its constitutional. It's basically a wear and tear phenomenon of the articular cartilage and that was what was observed at arthroscopy and that's what is evident on x-ray … it can follow on after injuries of a major nature, but I didn't feel the history in this case was likely to have contributed to the pathology."
Professor Murrell, who performed the surgery for Mr Martin, opined, however, that the pain Mr Martin now reported could be continuing from his arthritis as well as from the impingement. When asked by Mr Johnson whether, on the balance of probabilities, any practical restrictions in Mr Martin's activities were attributable to his glenohumeral arthritis rather than to any impingement, Professor Murrell replied: "I don't know. I think it could still be from this incident but it could be from arthritis." Mr Johnson reminded Professor Murrell that when giving evidence in December 1997, he had agreed that any continuing restrictions Mr Martin would have had in the couple of months following the operation, would have been due to his glenohumeral arthritis. Professor Murrell said that when he examined Mr Martin on 12 April 1999 he did have some subjective complaints, but also some positive impingement signs.
Mr Johnson submitted that although Professor Murrell was more favourable towards Mr Martin's situation, he conjectured whether the motorcycle accidents had caused the worsening of his arthritis.
Mr Johnson submitted that Mr Martin had told the Tribunal that he refused to take medication, and that both Dr Brooks and Professor Murrell had agreed that with medication, Mr Johnson's capacity to work would be even greater than without. I noted that Professor Murrell had said in oral evidence that anti-inflammatories would "decrease his pain about 5 or 10 per cent and therefore allow him to work better".
I was mindful that both Professor Murrell and Dr Brooks indicated that Mr Martin could do his work provided certain restrictions were in place. These are dealt with later in these reasons.
THE VIDEO SURVEILLANCE
Mr Johnson referred to the video surveillance, and submitted that Mr Martin, even when shown on video, refused to acknowledge that he was able to move and use his arm above shoulder level. Mr Johnson submitted that if Mr Martin had had a serious disability with his right shoulder, he would have carried his goods as shown on the video with his left rather than his right arm.
Mr Johnson also drew to my attention the fact that Dr Brooks had altered his opinion regarding Mr Martin's restrictions after viewing the video, in particular, his view that Mr Martin could lift weights up to 15 kilograms rather than the five kilograms referred to in his written reports.
I noted that Professor Murrell stated that he saw no sign of distress when he observed Mr Martin putting up his banner in the video he was shown. He said that from seeing the video, there was no demonstrated inability to perform any task which a normal right handed person could do.
Mr Perry did not make any submissions with regard to the video evidence.
Having seen the surveillance video evidence, and seeing Mr Martin move his right arm and shoulder freely and without restriction, particularly when he was putting up his sign, I found that he was exaggerating his restrictions to his doctors and to the Tribunal.
MR MARTIN'S CAPACITY TO WORK
I noted that the point of reference with regard to the work of a postal officer for this matter was Exhibit R5.
Mr Johnson made submissions about Mr Martin working within the limitations as set by Dr Brooks, that is a two hour limit as to driving, no motorcycle riding, (also agreed by Professor Murrell) and a weight lifting limit of 15 kilograms. Mr Johnson submitted that Professor Murrell had based his view that Mr Martin could sort mail for half an hour at a time, on the erroneous view that all sorting was consistently above shoulder level. I was mindful Professor Murrell had agreed after having the above shoulder sorting duties component clarified, that Mr Martin could sort mail for two hours at a time.
The Respondent, referring to Exhibit R5, restated the duties he conceded that Mr Martin could perform as a mail sorter. This consisted of one to two hours of primary sorting, two to four hours of "plugging", followed by delivery within the weight restriction of 15 kilograms and restrictions on motorcycle riding as recommended by Dr Brooks.
Mr Perry conceded, acknowledging Professor Murrell's change in his assessment of Mr Martin's capabilities based on the description of the work he was given, that the Applicant could sort mail two hours a day, perhaps for five days a week. He emphasised that Mr Martin had a significant incapacity for work, including, relying on the views of Dr Brooks and Professor Murrell, not being able to ride a motorcycle.
I was mindful that Mr Martin had given evidence in the Federal Court of his capability for work, with the proviso that the lifting of heavy mail bags or work above shoulder level were problematic. However, when he had been asked whether he felt he would have been able to do the sorting component of his job, the Applicant had answered "I would think so, yes." Mr Johnson submitted that Mr Martin had in his evidence before this Tribunal also acknowledged that he had not had time off work in relation to his shoulder.
Mr Johnson submitted that when Dr Brooks was questioned about what work Mr Martin could do in relation to the jobs illustrated in the brochure at Exhibit R5, he had said that the work Mr Martin had been doing was within his capabilities. Mr Johnson submitted that Mr Martin had given up suitable employment, and that there was hence no actual incapacity for work to be found for him as a result of a compensable injury.
Mr Johnson submitted the limitations Mr Martin could work under were a notional incapacity. All it meant was Mr Martin could not do the whole range of duties which were available to him before he left the Respondent, but he could in fact do the job he was doing and had done previously without taking time off. Mr Johnson submitted that the Respondent supported the findings of the previous Tribunal to find that Mr Martin's only period of incapacity was during 1997 when he was undergoing and recuperating from surgery.
Mr Johnson submitted that Mr Martin had been capable of doing his designated work with the restrictions mentioned above, and save for the period of the surgery and recuperative period which followed, could have continued to do the job he was doing. Mr Johnson's submission was that the Applicant had suffered no incapacity for work which would result in compensation.
I found the evidence that Mr Martin gave to the Tribunal in 1997 of the heavy hourly sorting load prescribed by Australia Post, and the description of the amount of above shoulder reaching difficult to accept. I found generally that his description of the work did not accord with other information before the Tribunal.
I accepted that Mr Martin could work in full time employment at Australia Post with the restrictions as suggested by Dr Brooks and Professor Murrell, that is no riding of motorcycles, his driving restricted to two hours at a time, sorting of up to two hours at a time, two to four hours of "plugging", lifting of bags weighing no more than 15 kilograms and that Mr Martin not do repetitive above-the-shoulder work. I noted that Mr Perry and Mr Johnson did not refer to all of the limitations recommended by Dr Brooks and Professor Murrell on each occasion. Notwithstanding, I have accepted that all of the limitations outlined above are applicable to Mr Martin's capacity to work.
CONCLUSIONS
Mr Perry submitted that, on one view, the Applicant was totally incapacitated for work, adding that this did not have the support of any medical practitioner, but should nevertheless be considered seriously. I was mindful that there was no evidence before the Tribunal regarding Mr Martin's total incapacity and thus, did not accept the submission of Mr Perry.
Mr Perry, in the alternative, made submissions about the loss of actual earnings but I had decided that, as appropriate, the issue would be remitted for calculation by the Respondent. However, for completeness, I noted that Mr Perry submitted that the period of incapacity :
"… would exist for the period leading up to 23 June 1997. The day before the operation, then the applicant would be found to be totally incapacitated from that time until 20 July 1997, the day before he commenced employment with Illawarra Health Service. And then for that period thereafter, to date – well, up to 19 April 1998 when he ceased employment with Illawarra Health Service and for the period 20 April 1998 to date and continuing."
Mr Johnson concluded his submissions by saying that it was open for the Tribunal to find on the evidence before it that Mr Martin suffered no incapacity or that following the recommendations of Dr Brooks as detailed above, there was no demonstrated diminution in Mr Martin's ability to earn. He submitted that neither scenario should lead to any compensation for incapacity.
If the Tribunal should find that was not so, Mr Johnson submitted the matter be remitted to the Respondent pursuant to section 43 of the SRC Act for calculation. I agreed that would be appropriate.
In respect of Mr Martin's employment, I noted and accepted the evidence before the Tribunal that:
Mr Martin resigned from his employment with Australia Post because of claimed harassment and not as a result of incapacity for work due to his shoulder injuries. I further noted that Mr Martin's counsel conceded that the Applicant's shoulder injuries did not become symptomatic until the end of 1993 early 1994.
Mr Martin was employed by Panasonic on 16 November 1992, four days after terminating his employment with Australia Post. Mr Martin resigned from the position on 25 June 1993. I find that he left the position not because of his shoulder but because of disagreements with other staff.
Mr Martin commenced working with the Illawarra Area Health Service on 7 April 1997 as part of a 20 week Government funded initiative to gain exposure to nursing procedure. I was mindful that Mr Martin concluded his employment on 19 April 1998 having left for a short time to undergo shoulder surgery on 23 June 1997 and post-operative recovery, after which he returned. I was mindful from the evidence of Mr Martin that he favoured his shoulder while he did the job as required at the Illawarra Area Health Service, but that he was able to carry out his duties adequately. I have noted that Mr Martin concluded what was intended to be a short term 20 week program because there no was no longer any work available to him. He did not leave as a result of his shoulder injuries.
I accepted from the evidence of Dr Brooks and Professor Murrell that Mr Martin is fit to engage in full time employment, providing that the following restrictions apply:
Not riding a motorcycle;
Driving up to two hours at a time;
Sorting to up to two hours at a time;
Two to four hours of "plugging" at a time;
Lifting no more than 15 kilograms;
No repetitive above-the-shoulder work.
I found from his oral evidence, the folder at Exhibit A2 and Dr Brooks' opinion, that Mr Martin did not seriously seek employment.
From the evidence before me, I find that the Applicant was totally incapacitated for work for the period from 23 June 1997 until 21 July 1997 being the period from the date of the arthroscopic acromioplasty performed by Professor Murrell on his shoulder and his post operative recovery period until 21 July 1997 when he recommenced his employment with the Illawarra Area Health Service.
DECISIONThe Tribunal sets aside the decision of the Australian Postal Corporation dated 30 May 1996 which was affirmed by the Reconsideration Section of the Australian Postal Corporation dated 21 August 1996 to deny liability in respect of the Applicant's claim for compensation for his right shoulder injury.
In substitution therefor, the Tribunal finds that the Applicant was incapacitated for work due to a compensable injury for the period 23 June 1997 until 21 July 1997 whilst he was undergoing surgery and recuperation. The Tribunal remits the matter to the Respondent for calculation of the amount of compensation including medical expenses pursuant to section 16 of the SRC Act.
The Tribunal recognises that there was a finding which has not been disturbed with regard to a compensable condition for which a 10% permanent impairment pursuant to sections 24 and 27 of the SRC Act has been awarded.
Costs to be calculated pursuant to the Tribunal's Practice Direction.
Signed: I certify that the 108 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Ettinger .....................................................................................
AssociateDate/s of Hearing 1 & 2 May 2000
Date of Decision 13 July 2000
Counsel for the Applicant Mr M Perry
Solicitor for the Applicant Mr M Fishburn
Counsel for the Respondent Mr G Johnson
Solicitor for the Respondent Australian Government Solicitor