Mellican and Australian Postal Corporation - [2001] AATA 1007

DECISION AND REASONS FOR DECISION [2001] AATA 1007

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W1999/239

GENERAL ADMINISTRATIVE DIVISION       )
           Re      BRENT WILLIAM MELLICAN
  Applicant
           And    AUSTRALIAN POSTAL CORPORATION
  Respondent

DECISION

Tribunal Associate Professor S D Hotop, Senior Member Dr D Weerasooriya, Member
Date 10 December 2001

PlacePerth

Decision The Tribunal: (a) sets aside the decision under review and, in substitution therefor, decides that the respondent is liable, pursuant to s14(1) of the Safety, Rehabilitation and Compensation Act 1988 ("the SRC Act"), to pay compensation in accordance with that Act to the applicant in respect of his injury, namely, chronic bilateral Achilles enthesopathy or Achilles tendonitis; and (b) orders, pursuant to s67(8) of the SRC Act, that the respondent pay the costs of the applicant in these proceedings, such costs to be assessed in accordance with clause 6 of the Tribunal's General Practice Direction dated 18 May 1998.

..........(sgd S D Hotop).............
Senior Member
CATCHWORDS
COMPENSATION – Commonwealth employees – respondent accepted liability to pay compensation to applicant in respect of heel condition in February 1997 – whether respondent continues to be liable to pay compensation to applicant in respect of heel condition - whether applicant continues to suffer from heel condition – whether applicant's heel condition contributed to in a material degree by his employment by respondent – whether applicant's heel condition has resulted in impairment
Safety, Rehabilitation and Compensation Act 1988 ss4(1), 14(1)
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316

REASONS FOR DECISION

10 December 2001 Associate Professor SD Hotop, Senior Member
Dr D Weerasooriya, Member

Brent William Mellican ("the applicant") has applied to the Tribunal for review of a reviewable decision, dated 8 June 1999, of a delegate of the Australian Postal Corporation ("the respondent") which affirmed a determination, dated 22 December 1998, which concluded as follows:
"In accordance with Sections 4 and 14 of the Safety Rehabilitation & Compensation Act 1988 I hereby determine that the injury suffered by you on 14 October 1996 in respect of 'Right and left achilles tendon/retrocalcaneal bursitis and plantar fascitis' was not caused by your employment, nor does your employment materially contribute to any current symptoms that you may suffer. Therefore, on and from the date of this advice Australia Post is no longer liable to pay compensation for your claim in respect of incapacity and medical treatment."
At the hearing the applicant was represented by Mr C Prast, Managing Law Clerk, and the respondent was represented by Mr J Lenczner of counsel. The Tribunal had before it the statement and documents ("T documents", numbered T1-T46) lodged by the respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 and various exhibits tendered by the applicant (numbered A1 – A10) and by the respondent (numbered R1 – R20). Oral evidence was given by the applicant and by the following witnesses: Dr D Sullivan (who was called by the applicant), and Debra Payne, Gordon Webster, Dr J Low, Paul Hocking, Les Tannock-Jones, Mr M Holt, Dr B Galton-Fenzi, Rodney Cox and Nicholas Fahie (who were called by the respondent).
the factual background
The relevant background facts, about which there is no dispute between the parties and as found by the Tribunal on the basis of the T documents, are as follows.
The applicant, who was born on 16 August 1973, was at all material times, and is presently, employed by the respondent as a mail officer.
The applicant lodged with the respondent a completed "Claim for Rehabilitation and Compensation" form dated 4 January 1997 (T4). In that form the applicant described the relevant injury as
"severe pain to heels, arches & Achilles tendons"

and stated that that injury occurred or was first noticed on (approximately) 14 October 1996 and that he had first sought medical treatment for that injury on 31 December 1996. He described the events which led to that injury as follows:

"Over recent months (Oct - Jan) pain has developed in both feet as a result of wearing safety footwear for long periods."

A "First Medical Certificate", dated 31 December 1996, by Dr S Dorevitch contained the following diagnosis of the applicant's injury:
"Heel pad callouses, plantar fasciitis, Achilles tendonitis".

Dr Dorevitch opined that the applicant was fit but required further treatment, and stated that he would review the applicant on 9 January 1997. (T5)

On 9 January 1997 Dr Dorevitch referred the applicant to Mr G McCluney, Podiatrist. (T46, p66)
On 3 February 1997 Dr J Low reported to the respondent that he had examined the applicant on 24 January 1997 and had taken the following history from him:
"…
He stated that since commencing work at the new PMC [Perth Mail Centre] in early October [1996], he noticed a gradual onset of discomfort behind both ankles. He stated that this area was tender to touch. He stated that the discomfort was worse with walking and is associated with stiffness on waking in the mornings. He stated that the stiffness would subside during the day. However, he would notice tenderness in this area if he was to knock or rub this area. He stated that he noticed the discomfort behind the ankle on resting after prolonged walking or standing. He stated that these symptoms were much improved over the weekends.
Mr Mellican also stated that he had subtle heel discomfort which came on gradually around Christmas 1996. After Christmas, he went on a post-Christmas sale and was walking for approximately 4 to 5 hours in his sneakers. He stated that the following day, while at work, he noticed very sore heels after working approximately half an hour. He described this heel pain as burning in sensation, like 'walking on nails' and he described aching in his foot arch. He stated that during this time, his heel pain was worse than his posterior ankle pain. He stated that the heel pain was worse after standing at work for greater than 1 hour. It would settle with sitting and was relieved after arriving home for about an hour.
Mr Mellican stated that the pain in his heels was less severe now. However, the discomfort in his posterior ankle was about the same." (original emphasis)

Dr Low's report continued:

"2. From what specific medical condition did/does Mr Mellican currently suffer?
I believe Mr Mellican has two conditions:
i.Right and left Achilles tendon(sic)/retrocalcaneal bursitis accounting for the posterior ankle pain
ii.Resolving plantar fascitis accounting for the bilateral heel pain.

3. In terms of probability as distinct from possibility, do you consider his employment with Australia Post has contributed materially to this condition?
I believe that it is quite possible that his employment with Australia Post contributed to the Achilles tendonitis/retrocalcaneal bursitis. Retrocalcaneal bursitis may be brought on by repetitive rubbing or contact in the area of the Achilles tendon. This may be as a result of the safety shoes. Both bursitis and tendonitis may be brought on by an overuse type injury such as excessive walking.
I believe that the plantar fascitis was predominantly caused by his excessive walking during the post-Christmas sale. Work may have contributed to an extent; however, I believe that the majority of his heel symptoms occurred as a result of his post-Christmas shopping trip.
4. If the employment did materially contribute to his condition
a)What was the contributing factor?

The contributing factor is as stated above in No.3.
b)Were/are the effects of the employment contribution of a permanent or temporary nature and, if temporary, when did the effects cease or be likely to cease?

I believe the effects of the employment contribution to be temporary in nature. I believe the effects should cease within the next two to three months.
…". (T7)

On 4 February 1997 the respondent accepted liability to pay compensation under the Safety, Rehabilitation and Compensation Act 1988 (the "SRC Act") to the applicant for "right and left Achilles tendon (sic) / retrocalcaneal bursitis and plantar fascitis", the date of that injury being determined as 14 October 1996. (T8)
On 25 February 1997 Mr G McCluney, Podiatrist, reported to the respondent on his treatment of the applicant following the applicant's referral to him by Dr Dorevitch. (T9)
On 28 August 1997 Dr J Joyce issued a Progress Medical Certificate in which the applicant's relevant injury was diagnosed as "bilateral achilles tendonitis" and in which it was certified that the applicant was fit but required further treatment. (T46, p68)
Upon receipt of the abovementioned Progress Medical Certificate, an officer of the respondent wrote to Dr Joyce requesting a report on the applicant. (T10)
On 17 September 1997 Dr Joyce reported to the respondent on the applicant as follows:
"…
As you are aware, Mr Mellican has been suffering from heel pain and achilles tendonitis since October 1996. This has been treated by a podiatrist with the use of custom made orthotics with a good deal of success. However he continues to have pain at the insertion of his achilles tendons into his calcaneus (heel) and his podiatrist asked him to see me with regard to considering a steroid injection into his tendons.
I discussed the pros and cons of this treatment method and I felt it was not worth pursuing due to the possibility of severe side effects ie. tendon rupture. I suggested using oral anti-inflammatory medications instead and to see me in a few weeks to see how he is responding. As yet he has not returned.
In brief then Brent is still having problems with his heels which although not preventing him carrying out all of his duties, are still causing discomfort….
…". (T11)
On 15 October 1997 Dr Dorevitch issued a Progress Medical Certificate in which he gave the diagnosis of the applicant's relevant injury as "ongoing achilles tendonitis", certified him as fit but requiring further treatment, and referred him to Dr D Sullivan, Sports Physician. (T46, p69)
On 29 October 1997 Dr Sullivan issued a Progress Medical Certificate in which he indicated that he had seen the applicant on 20, 22, 24, 27 and 29 October 1997, diagnosed the applicant's injury as "bilateral insertional achilles tendonitis", and certified him as fit but requiring further treatment. Similar Progress Medical Certificates were issued by Dr Sullivan on 5 November 1997 and 19 November 1997. (T46, pp 70-72)
Dr Sullivan subsequently issued Progress Medical Certificates in which he certified that the applicant was "totally unfit" from 13 January 1998 to 6 February 1998 by reason of the abovementioned injury. (T46, pp73-76) He subsequently issued Progress Medical Certificates in which he certified that the applicant was "unfit for normal duties" until 31 July 1998 by reason of the abovementioned injury. (T46, pp77-79)
In the meantime Dr Sullivan had referred the applicant to Dr J Cardaci for a Dynamic Localised Bone Scan. On 25 February 1998 Dr Cardaci reported to Dr Sullivan as follows:
"DESCRIPTION:
The dynamic study shows only slight focal blood pooling posterior in the heels.
Delayed images show moderately active tracer uptake posteriorly in both calcanei at the Achilles insertions. Less intense uptake is seen inferiorly in the calcanei. The left subtalar joint shows slight diffuse increase in uptake, and minor uptake is seen in the distal left tibia anteriorly.
INTERPRETATION:
The study confirms moderately active enthesopathy in both calcanei posteriorly related to the Achilles insertions. Less marked enthesopathy is seen at the plantar fascia insertions in the inferior aspect of the calcanei. Slightly increased uptake is seen in the left subtalar joint." (T16)
Dr Sullivan had also (on 1 May 1998 – T46, p78) referred the applicant to Mr G Hardisty, Orthopaedic Surgeon. On 8 May 1998 Mr Hardisty reported to Dr Sullivan as follows:
"Thanks for asking me to see Brent with the resistant insertional tendo achilles tendonitis for some two years. I note he has run the whole gamut of non operative treatment without a great deal of success. He has pain most of the time and it is made particularly worse with any running or similar sporting activities. He maintains he only does upper body work in the gym.
Clinically he was very tender over the tendo achilles insertion, particularly in the mid line. There is not a great deal of swelling here. I note his bone scan shows there is a lot of uptake at the insertion but his plain films are relatively normal.
My only real experience with radiotherapy has been for plantar fasciitis with an unpredictable result. Certainly it is feasible to pursue radiotherapy as a non operative approach given that he really has not responded to much at all. I advised Brent that I would have a word to the Radiotherapist to canvass her experience." (T18)
In response to a request by the respondent Dr Sullivan, on 22 May 1998, provided a report on the applicant as follows:
"1.The diagnosis on Mr Mellican is bilateral insertional achilles tendonitis (enthesopathy).
2.The history I obtained from Mr Mellican on 20/10/97 was that both of heels (sic) became painful in October 1996. He tells me that this occurred because of rubbing which he attributes to the old work shoes that he was wearing. In addition to this his work required a great deal of time standing and walking. I understand from him that you have accepted liability for his injuries on the basis of having provided the shoes that are alleged to have caused the injury. The history of the injury is consistent with his clinical findings.
3.The correspondence I received form his physiotherapist does not list the commencement date, however the referral was made on the 6thof March and therefore the date that you mentioned, the 11th March, is probably correct.
4. The body sites requiring treatment were the insertions of both achilles tendons onto the posterior aspect of the calaneii.
5. The treatment specifically requested was a trial of interferential which can sometimes help in the recovery of recalcitrant tendonopathies such as this. I left it to the professional judgment of the physiotherapy (sic) to decide how often and how frequently the treatment should be performed, however I suggested that if there was no response occurring in four to six sessions then it should be terminated.
6. The physiotherapist, Lisa Devlin, wrote to me following treatment and tells me that the types of treatment that were undertaken were local electrotherapy, deep tissue massage on the calf to help reduce tension in that muscle, and alterations to inserts in the shoes. Brent was also instructed in stretching exercises. He has now ceased physiotherapy.
7. Brent has failed to respond to any treatment that has been given to him so far since this condition commenced and it should be noted that the condition that he has is not infrequently very recalcitrant and difficult to manage.
Physiotherapy treatment has now ceased and Mr Mellican has been referred for a surgical opinion and possibility of treating his heels with radiotherapy is been (sic) canvassed.
The expected outcome of the treatment was reduction in Mr Mellican's symptoms so that he was able to tolerate standing at work all day. Unfortunately this has not occurred and it is very difficult to say when, if ever, his symptoms will be controlled.
Mr Mellican remains on restricted duties with a maximum standing tolerance of fifteen minutes per hour. It is to be noted that on some occasions he finds even this restriction a little too arduous. These restrictions will need to be in force at least until the end of May and quite probably longer than that given the recalcitrant nature of the condition from which he suffers." (T19)
In response to a request by the respondent Dr B Galton-Fenzi, Occupational Health Physician, examined the applicant on 28 May 1998 and provided a report, dated 3 June 1998, on the applicant as follows:
"1 What is Mr Mellican's injury and complaint?

At interview he stated that he had pain in the back of his heels, the left being worse than the right. It was almost always constant in its presence but could be variable in its intensity. He found that if he lay down without pressure on the heels, then he was pain free. However, on getting up with increased pressure on the heels. the pain would increase concomitantly. He also complains of pain in both arches of his feet though the use of orthotics helps substantially. He indicated that when the heel pains increase then the arch pains also increase. He did add however, that recently the orthotics appeared to be causing his problems to worsen along the soles of his feet. He indicated that wearing any shoes can aggravate both the heels and the arches, whilst wearing thongs does reduce the heel problem.
On inquiring about his daily activities he stated that he feels is he (sic) not getting a good nights sleep, but did admit that the heels were not a problem. He does little work around the house as he 'tries to be off his feet'. When he needs to cook he uses a chair to sit down. When he mowed the lawn recently it 'nearly killed him', but he stated that he 'had to do it', and as a result had to lie down for some two hours afterwards. It must be remembered however, that he lives with his brother and sister in law who generally looks after the house anyway.
When shopping he stated he takes 'twice as long' but does his own, as his brother and sister in law work. Walking up and down the aisles aggravates his symptoms and these become worse when walking up hills.
When driving a car it is 'very bad' and this appears to be the worst aggravator of his symptoms. He stated however he 'has to do it, he has no choice', with his heels on the floor for longer than ten minutes he 'feels like a cripple'. Movements however, tend to alleviate the symptoms to some degree.
Socially he stated that he has ceased doing any gym work, having formally attended daily for some one to two hours. He had been doing stretching, leg flexibility and overall body work, mainly on the upper body and 'abs'. He had been using a treadmill for two 10-minute sessions. He informed me that now he had been doing little, as his standing tolerance time was 1 minute.

2 a) What are my findings on clinical examination:
He presented as a tall, lean, fit looking man who is 24 years old. He walked with a slight limp when getting out of the chair, having been sitting for the duration of the interview (40 minutes).
On reviewing his ankles and feet there was no evidence of swelling, no discoloration or temperature changes.
On palpation there was stated tenderness at the junction of the plantar fasciae and the calcaneal tuberosity of both feet. On examining the Achilles tendon insertions into the oz calcanei, I felt that there was some mild thickening of the lower tendon at the insertion zones. However, both proved to be non-tender.
Both ankles exhibited a full range of movement and good stability on all planes. There were no abnormal neurological findings.

2 b) What are my comments in respect to the radiological findings:
On reviewing the x-rays of both feet (22/1/97) these are entirely normal with no evidence of degenerative change, or bone pathology.
The bone scan (25/2/98) shows evidence of moderately active tracer uptake posteriorly in both calcanei at the Achilles tendon insertions.
There is mild increase at the left sub-talar joint and the distal left tibia anteriorly. This suggests active entheses at the Achilles tendon insertions, and to a lesser degree at the plantar fascia insertions at the inferior aspect of both calcanei. It is noted this investigation was in February 1998. The clinical evidence now suggests that both problems had settled to a substantial degree when he saw me in May.

3 a) From what specific medical condition, if any, did/does Mr Mellican suffer:
From the evidence available it would appear that Mr Mellican developed a bilateral Achilles tendonitis with associated subcutaneous and subtendinous calcaneal bursitis. This appears to have substantially resolved when he saw me.
He also appears to have developed a bilateral plantar aponeurosis enthesis (plantar fascitis), which appears to be continuing to a mild degree.

3 b)In terms of probability as distinct from possibility, do I consider his employment with Australia Post does/did contribute materially to this condition?
On reviewing the evidence regarding the Achilles tendon and the plantar fascia it is noted that both these conditions are common and frequently seen in the community and sporting fraternity. I note that Mr Mellican was active in the gymnasium on a regular, almost daily basis, and it is noted that activities, particularly with running on such items as treadmills, the type of footwear utilised and the surface in the gym, may have been contributing factors. There is little evidence per se that the wearing of safety shoes causes these conditions.
Therefore, in my opinion, his employment with Australia Post did not contribute materially to this condition.
However, once established then many daily activities have the potential to exacerbate the problem. This will occur when performing normal daily home activities, outside social activities or when at work, especially if the shoes are relatively inflexible.
4) Does Mr Mellican have an anatomy that predisposes him to the above condition?
No. There is no evidence to suggest that individuals have differing anatomy of the foot, which may predispose them to the above condition. Mr Mellican does not have any evidence of such a problem.

5) Has Mr Mellican suffered an aggravation of a preexisting condition and if so, was that aggravation of a temporary nature?
It is possible, that he did aggravate a preexisting condition (the Achilles tendonitis and the plantar fasciitis), however it could be considered to of (sic) a temporary nature only. The substantial problem is the inflammatory change, which has now become fairly chronic and easily aggravated.

…

8) Has Mr Mellican wholly recovered from the injury suffered on 14 October 1996, and if not, when do I expect the effects from this injury to resolve?
I believe that there was no specific incident and if the symptoms became obvious in October 1996 then these were not work related, but generally to his constitutional make up and possibly the sporting activities he was doing at that time.
These conditions are notorious for their chronicity and I would suggest that his condition has now become chronic and ongoing.

9) If Mr Mellican's symptoms have not settled:
a)would I have expected them to do so?

b) Why haven't the symptoms settled?
As implied above, these conditions do become chronic and often take three years to fully settle. This occurs in about 15% of cases and it would appear that Mr Mellican is one of them. There is no specific reason why the condition continues, other than it is in a most vulnerable spot (both feet), which clearly have to bear the brunt of his daily moving.

In your second letter of 27 May 1998 your ask two additional specific questions regarding the workplace:
1) Mr Mellican's current position is an administrative one in the Return Mail Office (RMO) and this requires him to walk around collecting boxes at various points. Dr Sullivan has restricted Mr Mellican to 15 minutes standing. Could I please advise whether this duty is suitable:
As indicated in my report above, I believe this duty is fully suitable as walking on a flat surface at some frequency with the appropriate orthotics and shoes, is the best method for managing this case.

2) Mr Mellican has expressed concern, as he is unable to continue with his gym program and is only doing upper body work. He is a Perth Mail Centre fitness leader and has been active in gym work and kickboxing. Would either of these activities contribute or aggravate his condition:
Yes. As indicated in my report above, I believe that the problem most probably arose from the gymnasium activities, rather than any issue of safety boots. Non impact activities are preferable. Swimming would be his best option." (T21)

On 22 July 1998 Mr Hardisty reported to Dr Sullivan on the applicant as follows:
"Brent was reviewed today. There was not much success for radiotherapy for his chronic tendo achilles tendonitis. He has been most disturbed by the fact that he was told of his tendo achilles tendonitis coming from the fact that he spends a lot of time in the gym. He asked me specifically about this and my opinion to him was that tendo achilles tendonitis is seen in the sports field but also I have seen this in obese elderly women. It does tend to be chronic but eventually remits. I advised that it is much more likely, given that he wears boots on a hard floor and works eight hours on a shift as opposed to one hour with sports shoes in a carpeted area, that the etiology is more likely with respect to his work than his gym. He also maintains that he only does upper body work in the gym and is largely sitting down and does not do any sprinting, running or treadmill work.
With respect to his heels he feels they are improving and certainly the stiffness in the morning is subsiding.
I think he may be on the healing phase. I advised him to see me if he has any further problems." (T26)
By letter dated 30 September 1998 an officer of the respondent wrote to Mr Hardisty as follows:
"RE: BRENT MELLICAN
Thank you for your report of 22 July 1998 on the above named.
Your opinion on the cause of Mr Mellican's symptoms has been noted and I have subsequently taken the liberty to confirm his current employment duties from the Perth Mail Centre and forwarded these to you.
I see it relevant to raise several issues to further assist you in determining why Mr Mellican's symptoms have not settled when he has been undertaking work duties which are restricted specifically to avoid the risk of aggravating symptoms to his feet.
It may be that I have misinterpreted your report, however I am of the view that you have been led to believe Mr Mellican is required to stand on his feet on a hard surface for his entire shift and is wearing safety shoes at all times. When he was acting in the position of Senior Mail Officer Gd 2 he would have been required to stand for periods of up to two hours before having a break. It should be mentioned however that where associated with standing duties there is carpet or ant-fatigue (sic) matting in place. Since March of this year recommended restrictions have seen Mr Mellican revert back to a Mail Officer position which predominantly involves sitting duties (list of restrictions enclosed). As reported to me, Mr Mellican has abided by these restrictions to the point where he quite rightfully refuses particular duties such as picking up tubs of mail around the building as this takes more than 15 minutes which is outside his allowed maximum period of standing.
Mr Mellican has also chosen to wear jogging shoes with cushion soles as recommended by his physiotherapist (report enclosed). He has since had the opportunity to replace these with the issued safety shoes (last issue Mr Mellican chose to accept was on 28 May 1997), but has elected not to, opting for the greater comfort the cushion soled shoes provide. In May of 1997, Mr Mellican chose to purchase dual density sole boots weighing approximately 645 kgs (sic) each (brochure enclosed). Mr Mellican has opted not to continue to wear orthotics in his shoes since the end of last year. Another concern that Mr Mellican has raised recently is that driving for more than 5 minutes causes his heels to ache considerably.
I think it may be of relevance to mention that at the time of lodging his workers compensation claim, Mr Mellican was working in the Mail Officer position (sitting/standing duties). There were only occasional periods where he was required to undertake the duties of an acting Senior Mail Officer where he was required to stand for longer periods. It was not until approximately March 1997 that he acted in the more senior position on a full time basis. Mr Mellican was also able to participate in a fitness leaders course on 21 October 1996, just seven days after the date of lodging his claim. Three days later he was able to undertake a gym assessment for muscle building and endurance. This program included bike, stepper and treadmill activities for 40 mins as an endurance requirement. Mr Mellican's involvement in kick boxing is also confirmed at this stage.
Therefore, having now been briefed on Mr Mellican's history I would be very grateful for your opinion on the following, giving further comments in regard to the cause of any current symptoms Mr Mellican is now suffering from. I think it would be invaluable for you to speak with Ms Val Hanslow (Perth Mail Centre Nurse) to confirm the above history as explained by me and to answer any concerns you may have before you forward your reply. If you do wish to speak to Ms Hanslow, please contact me on the telephone number below and I will gladly arrange for her to contact you.
1. From what specific medical condition, if any did/does Mr Mellican suffer?
2. Given that Mr Mellican has been working within his restrictions for six months, do you consider his employment with Australia Post does/did contribute materially to this condition?
…". (T28)
Mr Hardisty responded to the respondent's letter of 30 September 1998 by letter dated 16 December 1998 as follows.
"… My letter from (sic) the 22 July 1998 was in relation to the information provided me by Mr Mellican and given that what you state in your letter of the 30 September is true, then I would say:-
1.The specific medical condition that Mr Mellican is suffering from is chronic insertional tendo achilles tendonitis.
2.Contribution of Australia Post to his symptoms
His work at Australia Post must contribute to his condition but I do not think it is reasonable to suggest it has caused his condition. To what extent it materially affects his symptoms is difficult to put a figure on as even if he was not working, general activities of daily living would contribute to his symptomatology anyway.
…". (T29)

On 22 December 1998 an officer of the respondent wrote to the applicant notifying him of a determination that he had made regarding his claim for compensation. The officer's letter summarised the evidence on the basis of which the determination had been made, and concluded:
"In accordance with Sections 4 and 14 of the Safety Rehabilitation & Compensation Act 1988 I hereby determine that the injury suffered by you on 14 October 1996 in respect of 'Right and left achilles tendon/retrocalcaneal bursitis and plantar fascitis' was not caused by your employment, nor does your employment materially contribute to any current symptoms that you may suffer. Therefore, on and from the date of this advice Australia Post is no longer liable to pay compensation for your claim in respect of incapacity and medical treatment." (T30)
The applicant subsequently requested a reconsideration of the determination dated 22 December 1998.
On 13 April 1999 Dr Sullivan wrote to the respondent as follows:
"I refer to your letter to Mr Mellican dated 22/12/98 where you determine that Mr Mellican's injuries were not caused by his employment. I have been treating Mr Mellican since the 20/10/97 and I find it a little strange that you have apparently not at least considered my opinion in this matter. I also find it a little strange that, after initially accepting liability for the injury that you have somehow determined that what was initially thought to have caused the injuries no longer applies.
It is my understanding that prior to Mr Mellican's symptoms he was working in the Perth Mail Exchange on a floor which was covered in vinyl and carpet. Shortly before his symptoms occurred he was transferred to the new Perth Mail Centre and was working on a concrete floor. At this time he was issued with new work boots. Within weeks of the move he began to experience symptoms in both heels.
It has been asserted by Dr Galton-Fenzi that his exercise contributed to his symptoms. It is my understanding that at that particular time, the only activity in the gymnasium which could possibly cause this condition was seven minutes of walking on a treadmill as a warm up and a warm down prior to and after performing weights activities. None of the weights activities that Mr Mellican was performing could be conceived of as contributing to achilles tendonitis. I would seriously doubt that seven minutes of treadmill walking in a young man would in any way contribute to achilles tendon problems.
There seems to be some lack of clarity with the various diagnoses that have been attributed to Mr Mellican's condition. What he does suffer from is insertional achilles tendonitis or otherwise an enthesopathy. This must be distinguished from achilles tendonopathy in the mid part of the achilles tendon which is a completely different condition. It must also be pointed out that there is no evidence that Mr Mellican is suffering from plantar fasciitis, but I believe that the pain from his achilles tendon insertion has been referring onto the plantar surface of the foot giving the unwary diagnostician the impression that he has plantar fasciitis. Mr Mellican's bone scan clearly shows bilateral achilles enthesopathy with no suggestion of plantar fascial attachment problems. This is a particularly sensitive test for distinguishing these conditions.
There are a number of points in your letter which you use to justify your decision which I believe are incorrect or invalid. In your point three you mention Dr Low's comments regarding excessive walking during the post Christmas sale period. This is obviously not relevant to the cause of the injury which commenced in October. As pointed out above, I do not believe that he has suffered from plantar fasciitis but that his pain radiates more widely when it is more severe.
In your point eight Dr Galton-Fenzi's discussion regarding plantar fascia problems is not relevant for reasons stated above. In any case plantar fasciitis in Mr Mellican's age group is not common in either the general community or the sport fraternity. Likewise achilles enthesopathy is not something that I see commonly in either the general or the sporting fraternity in Mr Mellican's age group and I believe in my work as a Sports Physician if it were common I would be seeing it frequently. The more common condition in the middle part of the achilles tendon is also more common in an older age group but again relatively uncommon in people aged in their twenties. It is more common but not confined to people who run, but as mentioned earlier at the time of onset of symptoms Mr Mellican was not performing any regular running. I certainly have however seen this problem caused when the heel of the footwear is particularly firm and exerting pressure on the achilles tendon insertion.
In your point nine whilst there may be an element of this being attributed to his constitutional makeup, I believe that the temporal relationship to his change in work place makes it highly likely that this was a causative factor.
In regards to your point ten I do not believe any of this is relevant to the initial cause of Mr Mellican's problems. You seem to be discussing what has happened subsequent to the onset of his symptoms. Mr Mellican has developed a chronic problem and any perpetuating factors are probably not relevant to whether or not this was caused by work. I believe the same applies to your deliberations listed under point eleven.
Thus if my understanding of the events leading to Mr Mellican's symptoms are correct, then I certainly believe that his problem was caused initially by the change in work surface and footwear and if this is the case then this remains the reason for his ongoing symptoms. As pointed out, once these problems are initiated, they are notorious for becoming chronic and persistent." (T38)
On 8 June 1999 a delegate of the respondent affirmed the abovementioned determination of 22 December 1998. (T41)
On 21 July 1999 the applicant lodged with the Tribunal an application for review of the delegate's decision of 8 June 1999.
the applicant's evidence
The applicant confirmed that the contents of a written summary of his evidence prepared by him and his solicitors are true. That document, which is dated 16 February 2001, was tendered in evidence (Exhibit A1). Its contents are as follows:
"…
4.I commenced employment with Australian Postal Corporation (Australia Post) as a mail officer in October 1994. I first worked in the Stirling Street site before being transferred to the Perth Domestic Airport Delivery Centre (Airport depot) sometime in 1995.
5.Just before I moved to the Airport depot I was promoted to acting senior mail officer. This involved supervision of up to thirty employees and involved the operation of various machinery, particularly the Optical Character Recognition Machine (OCR). Operation of the OCR required me to keep it 'fed' with envelopes.
6.I first noticed pain in my heels following my transfer to the Airport depot. Because of the amount of work, I would find that I was often operating the OCR for between 3-4 hours without a break.
7.At first I felt an ache, like a bruised feeling, after any prolonged period of standing.
8.After approximately 2 weeks the pain my heels (sic) became severe and both of my arches started to ache as well.
9.Over the next two to three months this pain worsened and spread to both of my lower calves as well so that I was in a lot of pain in both of my heels, arches and lower calves.
10.I believe that my injury was caused by having to stand for longer periods of time operating the OCR, as well as walking over the increased concrete distances at the Airport Depot as compared with Stirling Street. Other factors that I believe contributed to my injury were the increased distances I had to walk and the new style of safety shoe Australia Post provided for me. Also, following my promotion, I spent more time on my feet.
11.By October 1996, I knew that I needed medical attention and my symptoms were not just going to go away. I visited my General Practitioner, Dr Stephen (sic) Dorevitch and he said I had heel-pad callouses, plantar fascitis and achilles tendonitis. He also told me that I would need further treatment and possibly surgery.
12.I lodged a claim for compensation with Australia Post on 4 January 1997 and liability was subsequently accepted.
13.I was sent by Australia Post to see Dr John Low on 24 January 1997. He diagnosed right and left achilles tendon/retrocalcaneal bursitis and resolving plantar fascitis. He felt that it was possible that these conditions were caused by the rubbing of the safety shoes and excessive walking.
14.Dr Dorevitch sent me to see a podiatrist named Greg McClooney (sic) who used strapping and heel raises to provide some relief.
15.I was then given orthotics as a permanent measure and I continue to wear these. Nevertheless, I still suffer a great deal of heel, arch and calf pain in both my left and right feet and legs.
16.I went to see Dr John Joyce in September 1997 to ask him about getting steroid injections. He felt that the disadvantages of this treatment outweighed the advantages and that the best option was anti-inflammatory medications.
17.In January 1998 I needed some time off to rest my injuries and I applied for workers' compensation leave. This was rejected and I used my sick leave for time off work due to my injury from 13 January to 31 January 1998.
18.Because of my condition, I was placed on restricted duties in February 1998 and I remain on restricted duties to this day.
19.I went to see a sports physician, Dr Duncan Sullivan, who diagnosed enthesopathy which is bilateral insertial (sic) achilles tendonitis.
20.I also saw Lisa Devlin, a physiotherapist, who tried local electrotherapy, deep tissue massage on my calf and made alterations to my shoe inserts. She also gave me stretching exercises. None of these treatments assisted so I stopped visiting the physiotherapist.
21.By March 1999, my pain had marginally subsided, but I continue to suffer acute pain that incapacitates me and pain interferes with my life in many ways.
22.I try to be off my feet as much as possible. I am unable to stand for longer than 15 minutes at a time and even have to sit down when I cook. I find household and home maintenance tasks almost impossible.
23.It takes me twice as long than normal to do my grocery shopping as any walking aggravates my condition, bringing on pain.
24.As a result of my altered gait due to my work-related injury I have developed pain in both of my knees and hip joints as well as in my lower back.
25.I have difficulty driving as it is extremely painful. Running, jumping, and playing any sort of sport is impossible and this has severely restricted my social and recreational activities."

The applicant, in his examination-in-chief, also testified as follows:
·the "normal stint" on an OCR machine was 2 hours, with a rotation every 20 minutes between "feeding the mail and manning the stackers";
·the floor surface surrounding the OCR machines was concrete on top of which was a layer of carpet (without any backing) which is presently "wafer thin";
·when he commenced work at the Perth Airport depot he was not experiencing any symptoms;
·by the statement (in para 22 of his summary of evidence) that he is "unable to stand for longer than 15 minutes at a time", he was referring to an agreement he had reached with Dr Low (who he described as "the GPO doctor") that he be placed on restricted duties whereby he was not required to stand for longer than 15 minutes per hour;
·his condition has improved "a lot" since 1998 when he was suffering "intense pain", but he still experiences constant symptoms in both heels (the right more so than the left) and sometimes aching in the arch, but on some days he experiences the kind of pain level that he was experiencing in 1998;
·during the last 2 years (that is since the respondent has ceased to make compensation payments to him), his treatment has consisted of taking "Nurofen" medication although he has seen Dr Sullivan "2 or 3 times" at his own expense and in February 1999 he consulted Ms Sandra Kevill, Occupational Therapist, who made foot splints for him at a total cost to him of $237 (Exhibit A2).
The applicant said that at the time he commenced employment with the respondent he was attending a suburban gymnasium ("gym") but that, after his transfer to the Perth Mail Centre, he began attending the on-site gym. He said that he was one of a few staff members who were selected by management to be "fitness leaders" at the staff gym – that is, persons trained to advise gym users regarding the correct use of equipment in the gym and general safety issues in relation to gym usage.
The applicant was also asked about his engaging in kickboxing activities. He said that he once had a free kickboxing lesson at a martial arts establishment and was then given a punching bag for a birthday or Christmas present in approximately the early 1990s. He said that he would practise kicking that bag from time to time but that he never hurt himself in so doing. He said that that bag eventually rotted and he subsequently bought a new bag but hardly ever used it. He added that he still has the latter bag but that he took it down from its hanging place and does not presently use it. Asked when he took that bag down, he said that it was probably before he was transferred to the Perth Mail Centre.
In cross-examination the applicant confirmed that he commenced to experience problems with his feet 3 or 4 months after being transferred to the Perth Mail Centre at Perth Airport. He acknowledged, therefore, that that transfer must have occurred in 1996 (rather than in 1995 as stated in para 4 of his written summary of evidence (Exhibit A1)) as he commenced to experience problems with his feet in October 1996. Asked about his duties at the Perth Mail Centre, as compared with his duties immediately before his transfer, he said that, although the nature of his duties remained much the same, his duties were rotated less frequently and he was required to stand for longer periods at the OCR machines and to walk greater distances to collect and transfer mail at the Perth Mail Centre.
The applicant was questioned about the "new style of safety shoe" issued to him by the respondent (as referred to in para 10 of his written summary of evidence (Exhibit A1)). He said that he was issued with those shoes approximately 2-4 weeks after transferring to the Perth Mail Centre. He described those shoes as "a bit lower cut" and "fairly loose" around the heel area , as compared with the previously issued shoes, and said that they "seemed to rub a lot more" on both heels. He said that, notwithstanding that wearing those shoes caused him pain, he continued to wear them until his physiotherapist provided him with a letter recommending that he wear "sneakers" while working. He was unsure of the period during which he wore the issued shoes.
The applicant was also questioned about his kickboxing activities. He acknowledged that in the period of 6-12 months prior to his transfer to the Perth Mail Centre he would kick the bag at home about once a month or once every couple of weeks. He denied, however, that he had ever engaged in competitive kickboxing or that he engaged in any kickboxing after he commenced having problems with his feet following his transfer to the Perth Mail Centre.
The applicant was next questioned about his interest in gym work. He agreed that he had had an interest in gym work prior to his transfer to the Perth Mail Centre and he said that he had been attending a suburban gym and doing exercises at that time. After his transfer to Perth Mail Centre, he then used the on-site gym. He said that his gym exercises included using a treadmill for 7-10 minutes in order to "warm up" but that he engaged primarily in "upper body work" at the gym.
The applicant was then questioned at length about a performance which he gave for the staff at the Perth Mail Centre a few days before Christmas 2000. He acknowledged that that performance, the duration of which was approximately 15 minutes, involved simulated kicking and other martial arts movements. That performance was filmed by the security video cameras in the Perth Mail Centre and 3 videotapes of the performance (filmed from different locations) were played at the hearing and were tendered in evidence by the respondent (Exhibit R2). The applicant acknowledged that those videotapes showed him :

warming up for the performance
doing "the splits" or a split stretch
raising his legs
running to and fro, changing costumes and using various props
running quickly on the spot
kicking out
spinning
performing somersaults and "hand springs".

He said that he assumed that the security video cameras were always operating and would be filming his performance. He said that he did not necessarily experience pain during the performance but that he did experience pain afterwards as a result of the performance. He said, however, that he wanted to perform for his workmates to boost their, as well as his own, morale and that he did not care about the pain at the time. He said that he did not previously practise the movements he made during the performance. Finally, he acknowledged that, at the request of his workmates, he gave that performance on 2 successive evenings (21 and 22 December 2000).

In re-examination the applicant said that he required, and obtained, permission from Gordon Webster (Personnel) at the Perth Mail Centre before giving the abovementioned performances. He said that after the first performance Barry Thompson, Process Leader at the Perth Mail Centre, asked him to repeat the performance later that night but he responded that he was unable to do so because it had taken too much out of him, but that he would do so the following night if he was "feeling alright". He added that he did so the following night.
the evidence of other lay witnesses
Debra Payne
Debra Payne confirmed that a written summary of her evidence, prepared by the respondent's solicitors and dated 14 June 2001, is true and correct. The contents of that summary of evidence, which was tendered in evidence by the respondent (Exhibit R5), are as follows:
"1As of October 1996, I was the Operations Manager at the Perth Mail Centre ('the Centre'). I was employed by the Australian Postal Corporation prior to the move from the Perth Mail Exchange ('the Exchange') to the Centre.
2The Perth Mail Centre (sic) consisted of four floors, all operational. Except surrounding the OCR machines and in parts, the floor was hard lino tiles. Mail came onto a wooden dock area and then was distributed around the Exchange. There was a bitumen concrete area between the wooden dock area and the main area of the Exchange.
3The Centre was on a single floor with concrete painted areas, anti-fatigue matting in various areas and carpet surrounding the OCR machines.
4From my experience and recollection and knowledge of the work that was performed by the Applicant at the Exchange and then at the Centre, I do not believe it was necessary for the Applicant to walk further at the Centre than at the Exchange.
5Work safety boots were issued annually by a local supplier who came to the premises. From my observation, employees tried and selected work boots.
6In addition, in the premises was present an Occupational Nurse. I would have expected that if there were any concerns about the comfort of the issued shoes/boots, approaches would have been made to the nurse or the Australia Post physician.
7Since 1996, I have observed the Applicant on many occasions. I have never seen him limp when walking nor did he appear to walk with altered gait. I am aware that he had made complaints associated with his legs and taken time off work as well as worked on restricted duties."

Gordon Webster

Gordon Webster told the Tribunal that he is presently employed by the respondent at the Perth Mail Centre as the Employee Case Manager in the Mail Operations Network. He said that prior to October 1998 he was employed by the respondent as a Business Post Retail Manager. He confirmed that a written summary of his evidence, prepared by the respondent's solicitors and dated 14 June 2001, is true and correct. The contents of that summary of evidence, which was tendered in evidence by the respondent (Exhibit R7), are as follows:
"1 I commenced working at the Perth Mail Centre in October 1998.
2Commencing Christmas 1998, and each Christmas following, I arranged staff performances.
3Mr Mellican ('the Applicant') performed at work at Christmas 1999 and 2000. On each occasion, he won prizes consisting of a gift voucher or cash.
4Mr Mellican was a natural performer. I had been told that before Christmas of 1998, on one occasion, Mr Mellican wrapped himself up in Christmas lights and put the lights on. I have seen him perform in camouflage. A few months ago, earlier this year, while Mr Mellican was at the reception counter at the Centre he made it appear as though he were going down an escalator. He lowered his body, holding his head in the air. I assume it must have involved some crouching at his knees.
5Prior to every Christmas, since 1998, I have put up posters around the facility inviting performances. I have assumed that the Applicant sought permission to perform in the years 1999 and 2000. Usually, the performers performed twice, ie. for different shifts. The choice of winners was usually made by me, by reference to the reaction from the audiences. I recall that the day following the first performance at Christmas 2000, I rang the Applicant at home and congratulated him on the reception he had received and expressed that I was sorry that I had missed the performance. He said he would be performing for the coming night shift. It was usual for a performance to be repeated for the second shift. While I expected the Applicant to repeat the performance, I made no specific request that he do so.
6I have seen the applicant on numerous occasions since 1998 at the Perth Mail Centre. At no time did I see him in any way limited in the way that he walked or moved. In fact, earlier this year, I had seen him run in the carpark to a shuttle vehicle that he drove as part of his rostered duties. He appeared to move easily and well. At times, I have seen him jump around and performed 'the moon walk', again with no limitation.
7Since 1998, I have been in charge of the Mail Centre Gym. Attached are copies of records in relation to the Gym which were not compiled by me but which appear to be records of the Gym. They disclose that as at 24th October 1996, the Applicant undertook an assessment for a fitness leader's course. It appears from the documents that the Applicant had advised that at the time, he was participating in lifting weights and martial arts (kick boxing) on a bag at home. The assessment involved using a stepper as well as a treadmill. From the records of attendances at the Gym for gym purposes as opposed to a fitness leader's functions, it appears that he attended on 11th December 1996. The Gym opened after the opening of the Mail Centre."

The attachments referred to in para 7 of the above summary of evidence were also tendered in evidence (part of Exhibit R7).
Les Tannock-Jones

Les Tannock-Jones told the Tribunal that he is employed by the respondent, presently as a Mail Processing Co-ordinator and acting as a Production Manager at the Perth Mail Centre, and that he was instrumental in the establishment of a gym at the Centre in 1996. He confirmed that a written summary of his evidence, prepared by the respondent's solicitors and dated 14 June 2001, is true and correct. The contents of that summary of evidence, which was tendered in evidence by the respondent (Exhibit R15), are as follows:
"1In 1996, after the move from the Perth Mail Exchange to Perth Mail Centre near the Airport ('the Centre') I was involved with the gym at the Centre.
2Australia Post asked for volunteers to act as fitness leaders after the move. The positions were voluntary for those who wished to assist Australia Post staff.
3A course was conducted during which the proposed fitness leaders were shown gym equipment and how to use the equipment.
4Prior to and about the time of the commencement of the course, Mr Mellican appeared to be fit and made no complaints that he had any difficulties associated with the gym work."
Mr Tannock-Jones confirmed that the fitness leaders' course referred to in para 3 of his summary of evidence was conducted on 22 and 23 October 1996, and that he, the applicant and other staff members attended that course.
Nicholas Fahie
Nicholas Fahie told the Tribunal that he is employed by the respondent. He confirmed that a written summary of his evidence, prepared by the respondent's solicitors and dated 14 June 2001, is true and correct. The context of that summary of evidence, which was tendered in evidence by the respondent (Exhibit R20), are as follows:
"1As of Christmas 2000, I was on the Corporate Security Group staff of the Respondent.
2I had been advised on 22nd December 2000 that the Applicant was likely to be performing in the staff Christmas performance that night and was asked to engage the security cameras so that he could be filmed.
3I set three cameras running on twelve hour cycle and the next working day removed the film."

Paul Hocking

Paul Hocking, who gave evidence by telephone from Adelaide, confirmed that he is a private investigator. He also confirmed that a written summary of his evidence, prepared by the respondent's solicitors and dated 14 June 2001, is true and correct. The contents of that summary of evidence, which was tendered in evidence by the respondent (Exhibit R13), are as follows:
"1In late March 2001, I was supplied with the films taken by the security videos of the Applicant during a performance at the Respondent's Perth Mail Centre shortly prior to Christmas of 2000. I was asked to arrange to copy the film taken by the security videos onto a normal tape so that the image taken by the security cameras could be viewed in real time.
2I am acquainted with the security cameras in question. The camera films at 12 hour time-lapse or 8.33 frames per second on a 4 hour video tape as opposed to normal films of 25 frames per second ('real time'). If viewed as filmed, one views 8.33 bits of action per second to 25 bits of action per second, and the video therefore appears extremely jerky and running fast.
3As requested, I delivered the film taken by the security to Mr Josh Curtis of City Dub of 20 Myers Street, Adelaide in the state of South Australia. Mr Curtis then copied the film taken by the security cameras onto normal tape so that it could be watched in real time.
4Mr Curtis confirmed that the footage was duplicated without any modification to the picture. The time-lapse footage was simply slowed by an editing system to be as close as possible to real time.
5The film as copied and viewed on video, represents, allowing for reduction of the number of frames per second, what one would normally expect to see if viewing the performance. No digitalisation is involved in the process of taking or copying of the film so that no issue can arise that the film has been in any way altered from the film taken by the cameras."
Mr Hocking confirmed that, at his request, Mr Curtis (referred to in paras 3 and 4 of his summary of evidence) sent to him (addressed to "Quark Technologies") a report of the action that he took in relation to the abovementioned film delivered to him by Mr Hocking. Mr Curtis' report (undated), which was tendered in evidence by the respondent (Exhibit R14), states as follows:
"On Friday 23rd March 2001, City Dub took delivery of a VHS cassette from Quark Tech.
We would like to confirm that the footage was duplicated without any modification to the picture. The time-lapse footage on the supplied tape was simply slowed by our editing system to be as close as possible to real time.
City Dub provides exactly this service to security companies on a regular basis and we are aware that our duplicates may be used as evidence in a court of law."

Rodney Cox

Rodney Cox, who is employed by the respondent and described his occupation as Employee Relations Consultant, was called as a witness by the respondent for the purpose of proving a document entitled "Higher Duties Report" tendered in evidence by the respondent (Exhibit R1). Mr Cox confirmed that that document was generated by the respondent's Human Resources Management system and specifies the days (during the period from 10 November 1995 to 22 March 1998) on which the applicant performed higher duties.
additional videotape and related evidence
The respondent also tendered in evidence a surveillance videotape (part of Exhibit R19) and a covering report by Mike Hammond of Executive Investigative Services, dated 30 May 2000 (Exhibit R18). That videotape is of 2 minutes' duration and shows certain movements of the applicant on 19 April 2000 and 10 May 2000. Mr Hammond's covering report, which details surveillance of the applicant on 18-20 and 24-30 April 2000 and on 2, 10, 13, 16 and 17 May 2000 (including the 2 occasions the subject of the abovementioned videotape), contains the following conclusion:
"…
It was suggested to the Investigator at the commencement of surveillance that the claimant is looking fit and appears to have bulked up, therefore maybe attending the gym at the early hours of the morning prior to his regular afternoon shifts at the Perth Mail Delivery Centre.
The Investigator therefore undertook early morning periods on numerous occasions and carried them through until the lunchtime period until the subject left for work. Also, weekend periods were carried out to cover the possibility he may have been playing some type of sport, attending some type of sporting function, have merely gone shopping or carrying out some type of recreational activity.
The Investigator was also advised that the subject might have been attending Anderson's Martial Arts Academy, however he was not followed to this location.
Unfortunately this did not appear to be the case, and the subject appeared to be a very inactive type person, rarely left the residence apart from travelling to work and on one occasion was observed attending at Innaloo Shopping Centre and the other occasions appeared to be necessities, attending at the Esplanade carpark where he attends at his conciliation meeting and attending the Mail Delivery Centre.
When observed the subject appeared to walk at a medium pace and showed no sign of discomfort or restriction in relation to his alleged injury.
The Investigator did speak to [the respondent's solicitor] the following morning after the subject attended his appointment in Perth and she advised the Investigator that the subject had made comment to her that his feet were so sore from walking from the carpark, however video footage will show he did walk with ease and showed no sign of discomfort or restriction when leaving the carpark.
This report is corroborated with 2 Minutes of VHS Format Video Footage…".

the evidence of the medical witnesses
Dr D Sullivan

Dr Sullivan, Sports Physician, told the Tribunal that he has practised in the field of sports medicine since 1987 and has been a Fellow of the Australian College of Sports Physicians since 1991. He said that he first saw the applicant on 20 October 1997 and last saw him on 24 February 2001 and he confirmed that he had prepared 4 reports relating to the applicant, dated (in chronological order) 22 May 1998 (T19 – see paragraph 19 above), 13 April 1999 (T38 – see paragraph 26 above), 19 March 2001, and 7 June 2001. The two lastmentioned reports were tendered in evidence by the applicant (Exhibits A5 and A6, respectively).
Dr Sullivan's report of 19 March 2001, addressed to the applicant's solicitor, states (relevantly) as follows:
"At your request Mr Mellican was reviewed on the 24th February 2001. It is nearly 2 years since I saw him last. I first saw him in relation to a problem with both heels in October of 1997.
Initially the history given by Mr Mellican was that he developed pain in the posterior aspect of both heels in late 1996. He attributed the onset of this pain to both a change in employer supplied footwear and a shift in the mail office that he works in, with the new office having a concrete floor in distinction to the previous office which was carpeted. As I recall, he felt that his symptoms came on within a few weeks of this move in location. He was complaining of pain which was worse in the morning and worst after prolonged sitting such that it would take a little while to free up once he stood up and walked. Whilst Mr Mellican was previously involved in some gym training, it was neither his history nor my assessment that this was in any way contributing to the onset of his symptoms.
On most recent review, Mr Mellican's symptoms remained primarily pain in the posterior aspect of the heel. His symptoms were variable, such that on his good days he just had a mild ache, and on his worst days he had more significant soreness, stiffness, and a sharp pain in the heels. His heels always remained tender to touch to the point where he was not able to lay on his back in bed because of the pressure on the heels on the mattress. If he were to do too much activity standing or walking his symptoms would worsen. He found standing still intolerable after several minutes. He found climbing stairs and ascending inclines difficult. Prolonged walking was largely avoided, although when he did have to do the shopping he would ease the pressure on his heels by leaning on the shopping trolley. In addition to his long standing heel problem he felt he was developing a new problem of stiffness in the knees, hips, and lower back particular (sic) after prolonged sitting. He was no longer active in any sport, and was able to maintain his employment on restricted duties consisting of mostly sorting in a seated position and hand stamping. This effectively excluded him from 90% of the rotation of duties that he would normally undertake in his position.
The physical findings at the most recent review were of slight tenderness at the insertion of the achilles tendon into the calcaneum. There was also some slight swelling and tenderness in the region of the bursa intervening between the achilles tendon and the posterior aspect of the calcaneum. There was no heat, redness, or obvious tendon thickening posteriorly. His calf flexibility was good, and he was able to rise onto his tiptoes easily with only mild discomfort. I also examined his knees and there was a full range of motion, no specific tenderness and his ligaments were intact. His hips had a full range of motion, and in his lumbar spine there was a full range of motion with slight pain complained of in full flexion and left side flexion.
In general terms an altered gait such as displayed by Mr Mellican when his symptoms are severe could result in increased stresses on other joints such as the hips, knees, and back. Another consideration in someone who presents with pain in all of these areas is the possibility of an underlying inflammatory arthritis. On going back through my records whilst I had the feeling we had ordered some blood tests to investigate this possibility, I could not find any evidence of such and this might be taken up with his current treating doctor, Dr Low. In so far as Mr Mellican is concerned, I could not detect any specific abnormality in his knees or hips therefore could not comment on the possible relationship between his pains in these regions and his heel problem. It must be noted that his more proximal pains are relatively mild compared with the heels.
My diagnosis is achilles enthesopathy (insertional tendonopathy). I believe this was precipitated by his change in work environment in an individual who has a foot type that is predisposed to this condition. I do not believe the type of exercise Mr Mellican was doing outside of work at the time of his condition starting contributed in any way to its causation.
Mr Mellican has tried a wide variety of treatments mostly without long term success. Options that have been canvassed with him but which he has not undertaken include a course of radiotherapy, and surgery. Another option that he could consider which was not available when he was seeing me is extracorporeal shock wave therapy. Whilst none of these options are guaranteed to meet with success, there would be approximately a 70 or 80% chance of improvement with surgery, slightly less with shock wave therapy, and I am not sure that we have enough experience with radiotherapy to give a percentage figure. It would be necessary before any of these to be (sic) undertaken to be absolutely sure that there was not an underlying inflammatory condition.
Mr Mellican's prognosis would appear to be very poor, considering the duration of the symptoms that he has had. Thus while I do not expect him to get a whole lot worse, I would surprised (sic) if he got much better without undertaking one of the aforementioned treatments. I believe Mr Mellican is restricted in the type of work he can undertake both currently and in the future, and his restrictions have largely been outlined above.
Specifically he does not tolerate standing in one position for very long. He does not tolerate continuous walking. Whilst continuous sitting causes some stiffness in the achilles when he does eventually have to move, it does not appear to aggravate him as much as prolonged standing and walking. Thus he is probably limited to duties that are largely done sitting with only brief periods of mobility in between.
…
I believe Mr Mellican's employment with Australia Post has contributed at least 50% to Mr Mellican's current condition… I believe that Mr Mellican probably had an innate tendency towards developing this condition as a result of his foot type and biomechanical and chemical makeup, with the possibility that there is also as yet undiagnosed underlying inflammatory arthropathy."
Dr Sullivan's report of 7 June 2001, addressed to the applicant's solicitor, states as follows:
"I refer to your letter of the 31st May 2001. I have reviewed the enclosed security tape proported (sic) to demonstrate Mr Mellican doing a performance at the Mail Exchange on the 22nd December 2000 at approximately 2100 hours. Whilst the subject of the tape bears some resemblance to Mr Mellican, the quality of the film and the very limited view of his face made it impossible for me to confirm with certainty that the subject was indeed Mr Mellican.
The tape demonstrates the subject firstly laying out various costume props on the floor, and then performing some stretching exercises, followed by a performance of some 10 minutes involving standing, rapid short movements of a couple of steps, various fairly static dance routines, very brief periods of jogging on the spot lasting only a matter of a few seconds, and then a short demonstration of what I presume to be some break dancing moves involving one forward somersault. This was then followed by a period of some 10-20 seconds of martial arts type manoeuvres including forward kicks.
The subject demonstrated skills consistent with at least a basic level of martial arts and dance training, although not necessarily recently.
The level of activity performed would not be inconsistent with the condition that Mr Mellican suffers from, nor his reported symptoms. He did not perform any manoeuvres that would place his achilles tendon attachments under high load. I am sure that in a practical sense Mr Mellican would have been capable of performing these manoeuvres, however if the level of symptoms that he reports to me is accurate, it would perhaps be unwise. I would suggest that if he were to perform this demonstration he would aggravate his symptoms temporarily. It would be particularly concerning if he were to have done a lot of practice for this. One assumes that this was a pre-Christmas office festivity as the motivation for this performance. Having witnessed the performance however I did get a feeling that if the subject was indeed Mr Mellican, then one would think his employer would be justified in thinking that he could perhaps undertake more vigorous duties at work.
…".

In his brief evidence-in-chief Dr Sullivan confirmed that, having viewed the security videotape referred to in his report of 7 June 2001, his assessment of the applicant's condition was unchanged. He elaborated:
"… I thought that the movements that he was performing in that video were not inconsistent with the symptoms that he described to me and my understanding of his physical condition. I felt that whilst obviously he was putting some stress on the ankle, he really wasn't loading the achilles tendon attachment in a great way. And, secondly, that the duration of the performance probably wasn't of sufficient severity to cause a major flare up in his symptoms. And that the condition that he has wouldn't prevent him from performing those activities or probably even much more stressful activities that he -- meaning that I think he could probably do a lot more for a short period if he really had to. It is a question of what the consequences of that were going to be later on. So that, you know, it is going cause (sic) some symptoms, but he can do that sort of activity for, you know, 10 or 15 minutes. The question is whether he can sustain it for several hours or -- and day in, day out."
(Transcript, p165)

In cross-examination Dr Sullivan confirmed that his diagnosis of the applicant's condition was Achilles tendonitis, rather than plantar fasciitis, based on the location of the applicant symptoms (namely, at the back of the heel, rather than on the sole of the heel) and on the isotope bone scan (T16 - see paragraph 17 above) which showed "increased uptake" where the Achilles tendon attaches, rather than where the plantar fascia attaches. He said that the condition of Achilles tendonitis is notoriously chronic and, although some sufferers recover symptomatically in 1-2 years, not all cases do recover symptomatically. He added that tendon tissue, of its nature, has a poor capacity to heal. He acknowledged, however, that it was uncommon for such a condition not to get better.
Dr Sullivan was questioned about the Perth Mail Centre security videotape recording the applicant's pre-Christmas performance on 22 December 2000. He acknowledged that some of the applicant's movements during that performance would have subjected his Achilles tendons to a higher load than if he were standing or walking, but he said that that load would not have been high or extreme and would have been only slightly higher than if he were walking. He said that he did not regard that performance as "particularly athletic". He said that the applicant's being able to perform these various movements of short duration was not inconsistent with his inability to stand for long periods of time or walk or run long distances.
Dr Sullivan confirmed that it was his opinion that the applicant's gym work was not relevant to his present condition. He explained that it was his understanding that the applicant's gym work consisted mostly of upper body weight training which does not load the tendon, and the use of a treadmill for 7 minutes (in order to warm-up) which is equivalent to walking for that length of time. As regards the use of a stepper, he said that if used properly it would not cause the applicant any problems.
Dr Sullivan was also questioned about the applicant's engaging in kickboxing activities. He said that he had not been aware of this prior to seeing the abovementioned videotape. Asked what sort of foot injuries might be caused by kickboxing, he described these as largely traumatic injuries to the dorsum (or top) of the foot, rather than to the Achilles tendon, but he agreed that, in the case of the non-kicking foot that remained on the ground, there would be a very significant stress on the Achilles tendon. He added, however, that Achilles tendonitis is not a common condition in the applicant's age group.
In re-examination Dr Sullivan said that the majority of kickboxers whom he has treated are competitive kickboxers who training in that sport daily or at least several times per week. He also reiterated that his viewing of the abovementioned security videotape did not cause him to alter his diagnosis of the applicant's condition, which he described as of a "variable nature" and "low grade chronicity". He also reiterated his view that, based on the history he originally took from the applicant, there was a "strong temporal relationship" between a change in his work surface (from a carpeted to a concrete floor) and work footwear and the onset of his foot symptoms, and that that was a "significant causative factor in his (foot) symptoms". He said that he had seen (in a professional capacity) the applicant a total of 25 times.
Dr J Low
Dr J Low, Consultant Occupational Physician, told the Tribunal that, in addition to his academic qualifications, he is a Fellow of the Australasian Faculty of Occupational Medicine, and that he has practised in the GPO Building in Perth since October 1996. He confirmed that he had prepared 3 reports in relation to the applicant, dated (in chronological order) 3 February 1997 (T7 - see paragraph 8 above), 6 July 1999 and 19 June 2001. The two lastmentioned reports were tendered in evidence by the respondent (Exhibits R8 and R9, respectively).
Dr Low's report of 6 July 1999, addressed to the respondent, states as follows:
"… I have seen Brent Mellican on four occasions since 23 January 1997 in relation to his bilateral heel pain. As you are aware Brent Mellican is a 25 year old Mail Officer who works at the Perth Mail Centre. He has worked in Australia Post for the past four years. He has had a three-year history of bilateral heel pain, which has been diagnosed as bilateral Achilles tendonitis/enthesitis. He has been treated by a sports physician and an orthopaedic surgeon. He has received Cortisone injections, iontophoresis, physiotherapy, anti-inflammatory tablets, custom made insoles, and exercise programmes to no avail.
I last reviewed him on 24 June 1999. He stated at the time that his symptoms have only improved slightly. He stated that he was currently working on a full-time basis but had been doing alternative duties since December 1998. He stated that he was working in the Label Room sorting and typing labels and he has been sorting on the large vertical sorting frames for two lots of 1 hour a night.
Despite being on these alternative duties which are predominantly sitting in nature, he complained of still having 'heaps' of pain in both his heels. He complained of pain in both the arches of his feet occasionally. He stated that his heel pain was constant, though not as bad if his feet were elevated. He stated that his heel pain was worse after doing stints of standing on the large VSFs. He stated that he was able to walk but found it quite painful. Driving also caused him pain.
He stated that he was currently not participating in any recreational activities and was only sitting on his couch at home watching TV. He stated that he was unable to do any housework requiring him to stand and as he lives with his mother she does the cooking and housework for him. He stated that he spends his weekends at his girlfriend's going to dinners and movies.
He stated that he was currently not on any treatment.
On examination, Mr Mellican walked with a normal gait. He was able to walk on his heels but declined to walk on his tiptoes for fear of aggravating his heel pain. This is in sharp contrast to two examinations in October 1998 when he was able to walk on his tiptoes without any difficulties. This is also inconsistent with being on predominantly sitting duties for the past six months. He pointed to the area of tenderness at the insertion of the Achilles tendon on the heel but the pain was difficult to localise on examination.
With regards to your specific questions regarding his capacity to perform the duties of a Mail Officer, Transport Officer, Postal Delivery Officer, Postal Services Officer and Parcel Post Officer, it is my opinion from the history and examination findings above, that these duties will increase the risk of aggravating Mr Mellican's symptoms. All these duties require him to stand for more than two stints of an hour. He would also not have the opportunity to elevate his feet without being on alternative duties. Mr Mellican has indicated that driving also aggravated his symptoms which rules Postal Transport Officer duties out.
…".

Dr Low's report of 19 June 2001, addressed to the respondent's solicitors, states as follows:
"Thank you for your fax, which I received today (18 June 2001).
Mr Mellican was diagnosed, after the assessment on 24 January 1997, as suffering from right and left Achilles tendon/retrocalcaneal bursitis. And that time, I believed it was possible that his employment with Australia Post had contributed to his condition as a result of wearing safety shoes and excessive walking. Please refer to my report dated 3 February 1997 for further information.
Progress:
Since 23 January 1997, I have seen Mr Mellican on 5 October 1998, 7 October 1998, 24 June 1999, 27 January 2000, 6 December 2000, 6 February 2001 in relation to his bilateral heel complaint.
During the early presentations, Mr Mellican had complained of pain in the Achilles tendon on both heels and had stated that his standing tolerance was 15 minutes and he was only able to walk for a few minutes. He stated that his sitting tolerance was also 15 minutes especially if his knees were extended with his ankles in a dorsi-flexed position, such as when driving a car.
He stated that he did not undertake any recreational activities, spent most of his time sitting on a couch and watching TV. He described being restricted from doing any housework, which required him to stand. He described his mother doing the cooking and doing all his housework. He described avoiding walking long distances, did not undertake any window-shopping and when he did go to do some essential shopping, he needed to rest frequently or lean on the shopping trolley whilst walking.
Since the initial assessment, Mr Mellican has been on alternative duties and has been limited to standing for a maximum of 15 minutes whilst at work. When he was last assessed on 6 February 2001 (four years after the initial injury), he was still doing alternative duties, which involved predominantly sitting duties. He has been wearing sport shoes at work for the past four years.
Treatments that he had received include referral to a sports physician, Cortisone injections, iontophoresis, physiotherapy and anti-inflammatory tablets. He has been icing the area regularly.
He continued to describe avoiding exercise such as walking and cycling. He stated that he avoided going out socially because of his symptoms. He continued to have difficulty doing chores requiring him to stand, such as washing the dishes, and stated that he was not able to do a lot. At home, he stated that he hardly did anything except making the bed.
During the last assessment, he described continuing symptoms and functional limitations, which were essentially unchanged from four years ago.
Examination findings over the past four years have only changed slightly. He continues to be able to walk normally. Initially, he was tender at the insertion of the Achilles tendon on palpation; however, recently he has been more sore either medial or lateral to the insertion of the Achilles tendon. On some occasions he is able to walk on his tiptoes, on other occasions he has not because he was afraid of aggravating his symptoms. On some occasions when he has walked on his tiptoes, it has been painless and on other occasions it has been painful. This is a similar complaint when Mr Mellican was asked to walk on his heels.
Findings on the Video Surveillance Tape Dated 22 December 2000
The surveillance tape lasted approximately 75 minutes. There were three sections to the surveillance tape, showing the same activities between 8:45pm and 9:12pm from different camera angles. The date of the surveillance was 22 December 2000. The middle section of the tape showed a posterior view of the subject (most likely Mr Mellican from the dress, height and build) preparing to do and doing his skit, which lasted between 8:58pm and 9:10pm. My comments in relation to this surveillance tape are predominantly derived from the observations from this second section. I was unable to ascertain Mr Mellican's activities between 8:40 and 8:45pm as he was not in view of any of the three cameras.
From the surveillance tape, it would appear that the subject was able to do the following without difficulty.

Two further medical reports relating to the applicant were tendered in evidence by the applicant, namely, a report of Dr D Fish, Consultant Occupational Physician, dated 16 August 1999 (Exhibit A9), and a report of Mr G Hardisty, Orthopaedic Surgeon, dated 22 September 1999 (Exhibit A10). Both reports were addressed to the applicant's solicitors.
Dr Fish's report of 16 August 1999 sets out the applicant's history, physical examination and investigations, and continues as follows:
"SUMMARY AND ASSESSMENT:

Mr Mellican is a 25 year old man who presents with a history of bilateral heel pain since October 1995 (sic).
Clinical features and investigation lead to the diagnosis of bilateral Achilles tendonitis, which is known to be aggravated by walking and working on hard surfaces.
In answer to the specific questions raised in your letter of request for this report dated 28 July 1999:
…
4. What is your diagnosis?
I consider Mr Mellican to be suffering from bilateral Achilles tendonitis.

5. What treatment have you recommended?
I have recommended no treatment to Mr Mellican.
6.What treatment do you consider may be necessary in the future? If surgery may be required, please advise to (sic) the approximate cost of same.
The range of treatments for Mr Mellican's condition include:
i) The use of non-steroidal anti-inflammatory drugs and corticosteroid injections. Both have been tried in the past with Mr Mellican but without success.
ii) Measures to lengthen, stretch or otherwise relieve strain upon the Achilles tendon including the use of heel raises, night splints for stretching of the Achilles tendon and surgery. Apart from surgery, these measures have been tried with moderate success.
iii)Rest and inactivity - the mainstay of Mr Mellican's treatment has been rest in order for the inflammation to reduce and there has been some moderate improvement over the last six months.

As far as the possibility of further surgery, I consider this unlikely given his aversion to this, although operations upon the Achilles tendon can be performed in order to lengthen them. As I am not an orthopaedic surgeon I would consider it more useful if this question was addressed to an orthopaedic surgeon rather than myself.

7. Your prognosis of our cIient's condition?
Overall, Achilles tendonitis slowly resolves but it may take many years. I consider that as Mr Mellican's condition is now improving, a watchful expectancy is all which one can undertake at this time.
In view of the length of time for which his condition has persisted, however, it is unlikely that it will be a complete resolution and I consider it likely that he will be left with some degree of permanent residual disability.
8.Do you consider our client will be restricted in any way in the type of work he is able to undertake currently?
Certainly Mr Mellican is restricted in the work which he can undertake at this time. He is unfit to perform work which requires him to spend long periods on his feet or to walk long distances.
I consider the current restriction of spending no more than 15 minutes on his feet in any hour is reasonable in view of his continuing improvement.
9.What is your estimate of our client's permanent residual disability (expressed as a percentage)?
Overall I consider that Mr Mellican has a 5% permanent loss of efficient use of both legs at or below the knees as a result of his continuing Achilles tendonitis.
10.The extent to which our client's employment has contributed to any permanent residual disability.
The question of the extent to which Mr Mellican's employment has contributed to his condition is a difficult one to answer. On the basis of his own statements that the onset of his condition coincided with the move away from carpeted to concrete surfaces and him being required to spend longer periods of time on his feet and walk longer distances, I would consider that his employment has contributed approximately 75% to his residual disability.
An Achilles tendonitis is also associated with participation in high impact activities such as aerobics or ball sports such as basketball, but there is no history of this in Mr Mellican. His degree of involvement in gymnasium activities I can only take on his current statements, but consider that they may have contributed to a minor extent to his current condition.
11.The extent to which the employment has contributed to our client's current condition.
Overall I therefore consider that Mr Mellican's employment has contributed 75% to his current condition.

…".

Mr Hardisty's report of 22 September 1999 states as follows:
"I respond to your letter dated 28th July 1999 with respect to Mr Brent Mellican.
Mr Mellican was initially referred to me by Dr Duncan Sullivan, a Sports Physician, back in May 1998. The history related to me was that he was a 24 year old Acting Senior Mail Officer who had a history of resistant tendo achilles tendonitis for greater than two years. He had had a whole gamut of non operative treatment without a great deal of success. He maintained he had pain most of the time, but it was particularly worse with any running or similar sporting activities. He maintained he was only doing upper body work at the gym. When I examined him he was tender in the region of tendo achilles insertion, particularly in the mid line. There was not a great deal of swelling. He had had a bone scan which showed a lot of uptake at the insertion, but I note his plain films being normal and particularly there being no spurring into the tendon.
At the time Dr Sullivan requested whether radiotherapy would be of assistance, but had only heard of mixed results with this treatment for plantar fasciitis. He was next reviewed on the 22nd July 1998 where he felt his heels were improving and that the stiffness he felt in the morning was subsiding. I advised there was a good chance his symptoms would resolve and on the last review on the 2nd August 1999 he advised that over the last six months his tendonitis in both heels has settled substantially.
With respect to the questions you raised:-
1.        History.
As documented above, in particular he first started noticing bilateral pain in his heels whilst at work in October 1996. At the time he was on his feet most of the day. He has had many treatments for his painful heels and it has only really been in the last six months that his symptoms have improved.
2.        Current symptoms and restrictions.
Mr Mellican's symptoms are improving, his job has changed and been modified so that he is not standing continually all day. His symptoms however are still of an aching in both heels which are made worse when standing for long periods of time or running.
3.        CIinical findings.
My clinical findings were of no swelling at the heels, but certainly tenderness at the insertion of both tendo achilles. His bone scan showed increased uptake at the insertion of the tendo achilles into the calcaneus. His other x-rays were unremarkable.
4.        Diagnosis.
Diagnosis was for chronic insertional tendo achilles tendonitis affecting both heels.
5.        Recommended treatment.
I have not recommended any specific treatment for his tendo achilles tendonitis. He has however had in the past physiotherapy, iontophoresis and cortisone injections. He had also had orthotics.
6.        Future treatment.
As his symptoms are settling I do not think surgery would be required.
7.        Prognosis.
The prognosis is that he will have full resolution of his symptoms. However, there is a possibility he may have some residual aching in his heels when he stands for long periods or runs long distances.
8.        Restrictions on current work activity.
Currently he is restricted and he is required to do most of his work sitting down.
9.        Permanent residual disability
On current symptomatology Mr Mellican has a 5% residual disability
10.      Contribution from employment to his permanent residual disability.
The contribution from his employment to his permanent residual disability is placed at 50%.
11.      Employment contribution to his current condition
Mr Mellican's condition of chronic tendo achilles tendonitis can be seen in many clinical settings from the aesthetic athlete to the obese middle aged woman. It is difficult to ascertain to what extent his employment contributed to his current condition, but I would still place the contribution at 50%.
…".

the legislation

Section 14(1) of the SRC Act provides:
"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."

The following relevant definitions appear in s4(1) of the SRC Act:

"'ailment' means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development);"
…
"'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;"
…
"'impairment' means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function;"
"'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;

…".

There is no dispute that the respondent is a "licensed corporation" within the meaning, and for the purposes, of the SRC Act.
the issues

The general issue for the Tribunal's determination is whether the respondent remains liable, pursuant to s14(1) of the SRC Act, to pay compensation to the applicant in respect of an injury suffered by the applicant resulting in impairment. The determination of that issue depends on whether the applicant suffered, and continues to suffer from, an "injury" in the sense of a "disease" – that is, an "ailment", or an aggravation thereof, that was "contributed to in a material degree" by his employment by the respondent – resulting in his "impairment" (see the definitions of those words and phrases in s4(1) of the SRC Act).
findings on material questions of fact
Does the applicant suffer from an "ailment"?
The Tribunal notes that on 4 February 1997 the respondent, in its initial determination on the applicant's claim for compensation under the SRC Act, found that the applicant was suffering from bilateral Achilles tendonitis and plantar fasciitis as from 14 October 1996. In the Tribunal's opinion that finding was in accordance with the medical evidence presented to the respondent at that time. The Tribunal accepts the applicant's evidence that since that time he has continued to experience pain symptoms in both heels. The Tribunal notes that Dr Sullivan (the applicant's treating specialist), and Dr Low in his oral evidence (see paragraph 64 above) – the only relevant medical practitioners who have examined the applicant in 2001 (on 24 February, and on 6 February, respectively) – believed the applicant's complaints of ongoing pain symptoms in his heels. The Tribunal has had regard to the Perth Mail Centre security videotape (Exhibit R2) and the surveillance videotape (Exhibit R19) tendered in evidence by the respondent but is not persuaded by the contents of those videotapes that the applicant does not continue to experience pain symptoms in his heels. The Tribunal notes that Dr Low had viewed the abovementioned security videotape but nevertheless stated in evidence (as noted above) that he believed the applicant's complaints of ongoing heel pain. Mr Holt, who had also viewed the abovementioned videotapes, stated in evidence that viewing those videotapes had confirmed his clinical impression that the applicant's condition had "vastly improved", but he did not go so far as to say that he believed that the applicant's condition had resolved. Indeed, he acknowledged that he had not seen the applicant since 14 October 1999 – when, as he confirmed, the applicant's heel condition was still present – and was therefore unable to comment on that condition at the present time. Only Dr Galton-Fenzi expressed the opinion that the applicant had recovered from his heel condition. That opinion was based, however, solely on his viewing of the abovementioned videotapes, and not on a recent examination of the applicant (whom he has not seen since 28 May 1998), and, accordingly, the Tribunal attaches significantly less weight to it than it does to the opinion of Dr Sullivan who has examined the applicant on 25 occasions since October 1997, most recently on 24 February 2001. Dr Sullivan had also viewed the abovementioned security videotape and his evidence was that the activities performed by the applicant, as shown on that videotape, were not inconsistent with the pain symptoms of which the applicant complained and his understanding of the applicant's heel condition. The Tribunal accepts Dr Sullivan's evidence and his assessment of the applicant's heel condition and ongoing pain symptoms.
As regards the appropriate diagnosis of the applicant's heel condition, the Tribunal also accepts the diagnosis of Dr Sullivan (who has examined the applicant more often and more recently than any of the other medical practitioners whose reports are in evidence) that the applicant is suffering from chronic bilateral Achilles enthesopathy (insertional tendonopathy) or Achilles tendonitis. The Tribunal notes Dr Sullivan's doubts that the applicant ever suffered also from plantar fasciitis and finds, on the basis of the medical evidence before it, that, if the applicant did suffer from plantar fasciitis as from 14 October 1996 (as found by the respondent on 4 February 1997), that ailment had probably resolved by December 1998 (when the respondent's determination ceasing to accept liability to pay compensation to the applicant was made) and that the applicant does not presently suffer from plantar fasciitis.
Accordingly, the Tribunal finds that the applicant continues to suffer from an "ailment" (as defined in s4(1) of the SRC Act) – namely, chronic bilateral Achilles enthesopathy or Achilles tendonitis.
Has the applicant's continuing ailment of bilateral Achilles enthesopathy or Achilles tendonitis been "contributed to in a material degree" by his employment with the respondent?
In order to satisfy the requirement of "contributed to in a material degree by the … employment" in the definition of "disease" in s4(1) of the SRC Act, it is not necessary that the relevant employment contribution to the ailment in question be great or substantial or that the employment be the major cause, or the real, effective or proximate cause, of the development of that ailment. It is sufficient that it be established by the evidence on the balance of probabilities merely that the relevant employment has made some contribution to that ailment, or that there is some causal connection between them – provided that that contribution or causal connection is not de minimis: see Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 at 323-324.
As regards the question whether the applicant's employment by the respondent has contributed in a material degree to his continuing ailment of bilateral Achilles enthesopathy or Achilles tendonitis, there is some conflict in the medical evidence before the Tribunal. That medical evidence may be summarised as follows:

Dr Sullivan, having examined the applicant on 25 occasions since October 1997, has consistently opined that the applicant's employment with the respondent contributed to his ongoing condition of bilateral Achilles enthesopathy or Achilles tendonitis and, in his most recent report of 19 March 2001, he assessed the degree of that employment contribution to be "at least 50%".
Dr Low initially acknowledged that the applicant's employment may have contributed to his Achilles tendonitis condition and, on that basis, he placed him on restricted employment duties thereby limiting his periods of standing to 15 minutes per hour. Dr Low's evidence to the Tribunal was, however, that, although he believed that the applicant continued to experience heel pain, he now believed that the applicant's heel condition was no longer related to his employment by the respondent but he was unable to say when that relationship ceased. Dr Low's present opinion that the relationship between the applicant's heel condition and his employment by the respondent has ceased was based on his expectation that the applicant's bilateral Achilles tendonitis would have resolved given the fact that the supposed employment causative factors (namely, prolonged standing and the wearing of issued safety shoes) were removed approximately 4 years ago, and on his viewing (in June 2001) of the respondent's security videotape of the applicant's pre-Christmas performance on 22 December 2000.
Mr Holt, in his evidence to the Tribunal, acknowledged that the relationship between the condition of Achilles tendonitis and a "change in activity level" such as that described to him by the applicant, namely, an increase in the duration of standing and the amount of walking as required by his employment by the respondent. At no stage did Mr Holt deny the existence of causal connection between the applicant's employment by the respondent and his condition of bilateral Achilles tendonitis.
Dr Galton-Fenzi's evidence to the Tribunal was that the opinion he sought to express in his report of 3 June 1998 was that the applicant's employment by the respondent did not contribute substantially to the applicant's bilateral Achilles tendonitis, and that he was prepared to acknowledge that that employment had made some contribution to the onset of that condition. His present opinion, however, is that, on the basis of the activities performed by the applicant at the abovementioned pre-Christmas performance on 22 December 2000 as shown on the respondent's security videotape, the applicant has fully recovered from his condition of Achilles tendonitis.
Mr Hardisty, in his report of 22 July 1998, opined, on the basis of the history given to him by the applicant, that it was "much more likely" that the "etiology" of his chronic Achilles tendonitis was related to his employment than to his gym work. In his report of 16 December 1998 Mr Hardisty opined, on the basis of information provided to him by the respondent in a letter dated 30 September 1998, that the applicant's employment by the respondent "must contribute to his condition", although he did not think it reasonable to suggest that it had "caused" his condition. In his last report, dated 22 September 1999, Mr Hardisty opined that the applicant's employment by the respondent had contributed 50% to his condition of chronic Achilles tendonitis.
Finally, Dr Fish, in his report of 16 August 1999, opined, on the basis of the history given to him by the applicant that the onset of his heel condition had coincided with certain changes in his employment conditions (namely, from carpeted to concrete floors and being required to spend longer periods of time on his feet and walk longer distances), that the applicant's employment by the respondent had contributed 75% to his condition of bilateral Achilles tendonitis.

The Tribunal accepts the applicant's evidence regarding the changes in his employment conditions when he commenced to work at the Perth Mail Centre in 1996, namely, that, in his capacity as an Acting Senior Mail Officer, he was required to stand for significantly longer periods and to walk longer distances (on a concrete, rather than a carpeted or linoleum-covered, floor surface) than he was required to do in his capacity as a Mail Officer at the Perth Mail Exchange. The Tribunal notes the evidence of Debra Payne as stated in para 4 of her summary of evidence (see paragraph 39 above):
"From my experience and recollection and knowledge of the work that was performed by the Applicant at the Exchange and then at the Centre, I do not believe it was necessary for the Applicant to walk further at the Centre than at the Exchange."

That general statement of Ms Payne's belief regarding the walking activities required of the applicant at the Perth Mail Centre and (previously) at the Perth Mail Exchange, however, does not persuade the Tribunal not to accept the applicant's sworn evidence regarding his own walking activities in the course of his employment at the two abovementioned institutions.

The consensus of the medical evidence before the Tribunal is that it is likely that the applicant's employment by the respondent – in particular, his longer standing and greater walking activities in carrying out his employment duties at the Perth Mail Centre, as found by the Tribunal in the preceding paragraph – originally made some contribution to his condition of chronic bilateral Achilles enthesopathy or Achilles tendonitis, and the Tribunal so finds. The question is, however, whether that original employment contribution has since ceased.
The Tribunal prefers the opinion of Dr Sullivan on this issue to that of Dr Low and of Dr Galton-Fenzi. As previously noted, Dr Sullivan has examined the applicant on many more occasions, and more recently, than any of the other medical practitioners whose reports are in evidence in this matter, and he has consistently been of the opinion that the applicant's condition of bilateral Achilles enthesopathy or Achilles tendonitis – which the Tribunal has found to be ongoing – has been contributed to by his employment at the Perth Mail Centre in October 1996. Dr Low also initially accepted that the applicant's heel condition was contributed to by his employment at the Perth Mail Centre and did not express a contrary opinion until June 2001 when he viewed the respondent's security videotape of the applicant's pre-Christmas performance at the Perth Mail Centre on 22 December 2000. Upon viewing that videotape Dr Low formed the opinion (as he explained in his oral evidence) that the applicant's heel condition was no longer related to his employment by the respondent, although he accepted that that heel condition and associated pain symptoms continued. The Tribunal, however, has some difficulty in understanding how the viewing of the abovementioned videotape could be regarded as a basis for the opinion that the applicant's ongoing heel condition is no longer employment-related. On the other hand, the Tribunal can understand how the viewing of that videotape might lead to the opinion – as expressed by Dr Galton-Fenzi in his report of 16 June 2001 – that the applicant was no longer suffering from a heel condition, although, in the Tribunal's view, that videotape does not itself establish that conclusion. As regards that issue, the Tribunal has already explained why it attaches significantly less weight to Dr Galton-Fenzi's opinion than it does to Dr Sullivan's opinion (see paragraph 83 above).
The Tribunal also notes that Mr Hardisty and Dr Fish were of the view, when they examined the applicant in August 1999 and diagnosed his condition as bilateral Achilles tendonitis, that his employment by the respondent at the Perth Mail Centre had contributed significantly to that condition. And Mr Holt, in his report of 14 October 1999, acknowledged the feasibility of a relationship between the applicant's employment and his bilateral Achilles tendonitis condition.
For the reasons explained above the Tribunal accepts the opinion of Dr Sullivan that the applicant's current condition of chronic bilateral Achilles enthesopathy or Achilles tendonitis (which it has already found to be continuing – see paragraph 85 above) has been contributed to by his employment at the Perth Mail Centre in October 1996, and the Tribunal so finds. It is not necessary for the Tribunal to make a finding as to the precise degree to which the applicant's employment has contributed to his current condition but, on the basis of Dr Sullivan's opinion that the degree of that contribution was "at least 50%", the Tribunal finds that the applicant's employment has contributed substantially or significantly to his current condition.
Accordingly, the Tribunal finds that the applicant's current condition or "ailment" (as defined in s4(1) of the SRC Act) – namely, chronic bilateral Achilles enthesopathy or Achilles tendonitis – was "contributed to in a material degree" by his employment by the respondent, and that that ailment is, therefore, a "disease" and an "injury" (as defined in s4(1) of the SRC Act). It is also, therefore, an "injury" within the meaning, and for the purposes, of s14(1) of the SRC Act.
Has the applicant's "injury" – namely, chronic bilateral Achilles enthesopathy or Achilles tendonitis – resulted in "impairment"?
The applicant's evidence was that, by reason of his heel condition, he was unable to stand for long periods of time or to walk long distances and that running, jumping and playing any sport were "impossible". Dr Sullivan, in his report of 19 March 2001, accepted that the applicant, by reason of his Achilles tendonitis condition, "does not tolerate standing in one position for very long" or "continuous walking" and that even "continuous sitting causes some stiffness" in his Achilles tendons. And Dr Low, in his evidence, accepted that the applicant continues to experience pain symptoms in his heels, that his Achilles tendonitis condition is ongoing, and that he probably continues to need restrictions in his employment duties.
The Tribunal finds, on the basis of the evidence before it, that the applicant, by reason of his condition of chronic bilateral Achilles enthesopathy or Achilles tendonitis, has suffered, and continues to suffer, an "impairment" (as defined in s4(1) of the SRC Act). It is not necessary, for present purposes, for the Tribunal to make a finding as to the precise degree of that impairment. It seems to the Tribunal, however, that, based on the whole of the evidence before it, the degree of the applicant's impairment is not substantial. Dr Sullivan, the applicant's treating specialist, described the applicant's impairment as "a low grade problem" (Transcript, p182) and the Tribunal accepts that assessment. The Tribunal also regards the respondent's security videotape of the applicant's pre-Christmas performance at the Perth Mail Centre on 22 December 2000 as cogent evidence that the applicant does not have a substantial impairment, although, as previously discussed, the Tribunal, in the light of Dr Sullivan's evidence, does not regard that videotape as cogent evidence that the applicant does not continue to suffer from the condition of chronic bilateral Achilles enthesopathy or Achilles tendonitis.
Accordingly, the Tribunal finds that the applicant's "injury" – namely, chronic bilateral Achilles enthesopathy or Achilles tendonitis – has resulted in "impairment", within the meaning, and for the purposes, of s14(1) of the SRC Act.
conclusion
It follows from the abovementioned findings, and the Tribunal therefore concludes, that the respondent continues to be liable, pursuant to s14(1) of the SRC Act, to pay compensation in accordance with that Act to the applicant in respect of his injury, namely, chronic bilateral Achilles enthesopathy or Achilles tendonitis.
decision
For the above reasons the Tribunal sets aside the decision under review and, in substitution therefor, decides that the respondent is liable, pursuant to s14(1) of the SRC Act, to pay compensation in accordance with that Act to the applicant in respect of his injury, namely, chronic bilateral Achilles enthesopathy or Achilles tendonitis.
The Tribunal orders, pursuant to s67(8) of the SRC Act, that the respondent pay the costs of the applicant in these proceedings, such costs to be assessed in accordance with clause 6 of the Tribunal's General Practice Direction dated 18 May 1998.
I certify that the 99 preceding paragraphs are a true copy of the reasons for the decision herein of Administrative Appeals Tribunal
Signed:
....................(sgd B A Paterson)...................
Associate
Dates of Hearing  28 March 2001 and 20-22 June 2001
Date of Decision  10 December 2001
Counsel for the Applicant        Mr C Prast
Solicitor for the Applicant         Slater & Gordon
Counsel for the Respondent    Mr J Lenczner
Solicitor for the Respondent    Downings Legal