Nguyen and Australian Postal Corporation (Compensation)

Nguyen and Australian Postal Corporation (Compensation) [2024] AATA 2982 (15 August 2024)
Division:GENERAL DIVISION
File Number(s): 2021/6307
Re:Duy Nguyen
APPLICANT

AndAustralian Postal Corporation
RESPONDENT

DECISION
Tribunal:Senior Member A Poljak
Date:15 August 2024
Place:Sydney

The decision under review is affirmed.
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Senior Member A Poljak
CATCHWORDS
WORKERS COMPENSATION – Parcel Post Officer – Australia Post – seeking compensation for bilateral epicondylitis – Whether claimed condition is an ‘ailment’ – Whether ‘ailment’ contributed by employment – whether ‘disease’ – Whether suffered an ‘injury’ – Whether Respondent liable to pay compensation pursuant to section 14 of the SRC Act – Denial of liability – Decision affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988
REASONS FOR DECISION
Senior Member A Poljak
15 August 2024

Mr Duy Nguyen, the applicant, is a former Parcel Post Officer based at Australia Post Sydney Parcel Facility, a position he commenced on 20 February 2012. The applicant has not worked since November 2021.
On 30 March 2021, the applicant lodged a claim for compensation and rehabilitation for the condition ‘forearm and tricep muscle tear’ attributed to ‘repetitive stress injury’. The applicant advised the symptoms/injury arose on 6 January 2021 and reported the injury on 9 January 2021. When asked whether the applicant had the same or similar condition, injury or illness, work related or otherwise, the applicant answered ‘no’.
The applicant lodged an (undated) amended claim for compensation and rehabilitation, changing the injury to ‘bilateral epicondylitis in both left and right forearm and elbow’.
On 9 July 20211, Australia Post, affirmed a determination dated 8 June 20212 that denied liability to pay the applicant compensation for ‘bilateral epicondylitis’ with a claimed date of onset of 6 January 2021, pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). This is the decision under review in these proceedings.
Issues
The issues for determination in these proceedings are:
(a)What is the diagnosis of the condition claimed to have been suffered by the applicant, identified as ‘bilateral epicondylitis’ with a date of onset of 6 January 2021.
(b)Whether the claimed condition is an ‘ailment’ within the meaning of subsection 4(1) of the SRC Act.
(c)If so, whether the ailment was contributed to, to a significant degree, by the applicant’s employment with Australia Post, such that it is a ‘disease’ within the meaning of subsection 5B(1) of the SRC Act.
(d)Whether the applicant has suffered an ‘injury’ within the meaning of subsection 5A(1) of the SRC Act.
(e)Whether Australia Post is liable, pursuant to section 14 of the SRC Act, to pay compensation under the Act for the claimed condition.
Relevant Aspects of the Evidence and Consideration
In 2011, the applicant suffered a serious bike accident which appears to have caused ongoing pain in his neck and shoulder.
The applicant is an active person, having a history of active physical activity including surfing, playing golf, and working out in the gym with weights. The applicant’s medical records demonstrate a history of ongoing neck and left shoulder pain throughout 2014 and 2015, as well as records of lower back pain after lifting weights at the gym and back pain after surfing activity.
The medical evidence suggests that the applicant suffered from a partial thickness tear of the common extensor tendon that attaches to the lateral epicondyle of the humerus at the elbow in his right arm. The applicant has also been diagnosed with common extensor tendinopathy of his elbows and bilateral epicondylitis.
The applicant claims that the condition suffered by the applicant, identified as ‘bilateral epicondylitis’ had a date of onset of 6 January 2021. The contemporaneous medical records reveal the following relevant history.
On 15 December 2020, the applicant attended Dr Zaffar Hussain, general practitioner. He reported ‘in gym hurt his right arm two days ago’. On examination Dr Hussain noted ‘tricep tender, not swollen’. Dr Hussain provided the applicant with an information leaflet on ‘tennis elbow’, recommended conservative RICE (Rest, Ice, Compression, Elevation] and ordered ultrasound imaging.
On 19 January 2021, the applicant attended Dr Hussain and reported ‘four weeks ago torn his tricep while working out in a gym, developed pain, went for physiotherapy, no improvement. On examination, pain at the insertion of the right tricep on clenching the elbow and wrist’.
On 20 January 2021, the applicant underwent ultrasound imaging of the right upper arm and triceps, the report concluding ‘tear of the CET with epicondylitis. Normal triceps tendon’.
On 23 January 2021, the applicant attended Dr Thambipillai Sivarajah, general practitioner. Dr Sivarajah confirmed ‘partial thickness tear of the attachment of the common extensor tear of the CET with epicondylitis’ and referred the applicant to orthopaedic surgeon, Dr Vijay Maniam. In the referral letter to Dr Maniam dated 23 January 2021, Dr Sivarajah advised ‘patient injured right elbow while surfing. He has a partial thickness tear of the attachment of common extensor. Patient is in pain..’.
On 8 February 2021, the applicant was reviewed by Dr Maniam. In correspondence dated 9 February 2021, Dr Maniam advised:
Duy Nguyen was seen on 8 February 2021 for right elbow pain which had been troubling him for six weeks. He is an employee of Australia Post (parcel officer) where the conditions of his work are repetitive and lifting various sized objects. It is repetitive.
He developed pain over the outer aspect of the right elbow and has persisted and not responded to physiotherapy and medication.
… I informed Duy Nguyen that the problems are work related and I have issued him with a work capacity certificate… I have arranged for him to undergo ultrasound guided injection into the right external epicondyle whilst simultaneously continuing with physiotherapy.
Dr Maniam issued a SIRA NSW Certificate of Capacity/Fitness, certifying the applicant fit to perform duties 8 hours per day, five days per week, from 9 February 2021 to 9 March 2021, with a 5kg lifting restriction.
On 8 February 2021, a One Safe Incident/Investigation report was lodged on behalf of the applicant in relation to a ‘forearm and tricep injury’ occurring 6 January 2021, 10.30pm. The report stated:
Duy Nguyen… was working at LLO lane 7 VIC stacking parcels when he felt gradual pain build into his forearm and tricep. Report incident has been taken. Manual Handling techniques discussed to avoid from recurring’.
On 20 April 2021, Dr Maniam reported:
On 6 January 2021, he developed pain in his right elbow on the outer aspect and it is a culmination of symptoms that were gradually developing over a six-week period… with time, he also developed symptoms on the left elbow over the lateral epicondyle and it commenced in early April 2021… work appears to be the sole contributory factor.
The applicant relies on reports of Dr Pillemer, orthopaedic surgeon, dated 4 October 2022, 6 March 2023, and 23 March 2023. In the report dated 4 October 2022, Dr Pillemer provided the following diagnosis:
Mr Nguyen would seem to initially have developed some discomfort in his right elbow region while doing gym in December 2021 according to the notes of the general practitioner that were forwarded to me.
He then seemed to aggravate his problem on 6 January 2021 while working in the back of his truck, and recalls a specific incident at the time which he reported. As noted he developed similar symptoms in his left arm about a month later, and the left side now worries him more than the right.
As far as diagnosis is concerned, in my opinion provocative testing for lateral epicondylitis was minimal, noting that resisted extension of the wrists only caused discomfort in the extensor musculature and most importantly, there was no tenderness to palpation over the lateral epicondyles but he was very tender to palpation over the radial tunnel, distal to the lateral epicondylar region. His main pain was resisted extension to the middle finger, once again felt in this region.
Although the investigations have suggested bilateral lateral epicondylitis, clinically I was unable to confirm this today.
In my opinion the most likely explanation for his ongoing symptoms is bilateral radial tunnel syndrome.
…
As for attributability, Dr Pillemer opined:

With the history noted above, I have some difficulty giving a firm opinion in this regard, noting the contradictions. Noting the nature and conditions of his work and the fact that he developed symptoms on the left side as well as the right side, suggests that the nature and conditions of his employment could certainly be regarded as a contributing factor to the development of his condition.
In the report dated 23 March 2023, Dr Pillemer stated:
Having reviewed the MRIs of both elbows, this would not alter the opinions expressed in my reports to you.
As noted clinically I was unable to confirm lateral epicondylitis on either side noting the provocative testing for lateral epicondylitis was negative bilaterally, with no discomfort to palpation over the lateral epicondyle, but discomfort in the upper lateral forearm region, in the area of the radial tunnel.
On 1 June 2021, Dr Raymond Wallace, orthopaedic surgeon, conducted a review of the contemporaneous medical records at the request of Australia Post. With respect of causation, Dr Wallace opined:
Mr Nguyen’s right elbow condition is due to injury he sustained whilst working at the gymnasium on 13 December 2020. This injury was documented by his Local Medical Officer Dr Islam at review on 15 December 2020…. There is no objective medical evidence Mr Nguyen suffered any work-related injury at his right elbow whilst in the employ of Australia Post…. The nature and conditions of his employment as a Postal Sorting Officer is not consistent with being the cause of common extensor tendinopathy at his elbows.
In a subsequent report dated 9 June 2022, Dr Wallace advised that he saw and examined the applicant on 7 June 2022. He diagnosed the applicant with:
6 January 2021 – Spontaneous onset of right elbow pain
1. Degenerative common extensor tendinopathy right elbow - non-work related and now resolved.
As for causation, Dr Wallace opined:
There is no objective medical evidence that Mr Nguyen suffered any work-related injury at his right elbow at the time of his symptom onset in December 2020. In fact, he was reviewed by his Local Medical Officer on 15 December 2020 and provided a history that he had injured his right arm whilst attending the gymnasium two days prior.
He underwent an ultrasound examination of the right elbow on 20 January 2021 which showed evidence of a common extensor tendinopathy with a partial thickness tear.
Mr Nguyen suffered a non-work-related aggravation of pre-existing common extensor tendinopathy at the right elbow whilst working out in the gymnasium in mid-December 2020.
His right elbow condition is unrelated to his employment with Australia Post.
His employment with Australia Post is not a substantial contributing factor to his right elbow condition.
His right elbow condition has now resolved. He has no evidence of any ongoing disability at his right elbow on clinical examination at the time of review on 7 June 2022 and, in particular, has no evidence of tenderness at the common extensor tendon origin.
Mr Nguyen noted the onset of left elbow pain without a history of injury in April 2021.
He has no evidence of any ongoing disability at his left elbow on clinical examination at the time of review on 7 June 2022.
There is no objective medical evidence that he suffered any work-related injury at his left elbow.
His employment with Australia Post is not a substantial contributing factor to any current left elbow condition.
These opinions were again confirmed in an additional report of Dr Wallace dated 12 March 2024.
At hearing, Dr Wallace reiterated that there was no specific incidence of trauma and no evidence of the claimed condition being related to work conditions or activities. He further reiterated that clinical examination was normal. Dr Wallace explained that the applicant had normal age-related degenerative findings, which explained the symmetrical pathology.
Dr Wallace was questioned about the opinions of Dr Pillemer and Dr Maniam and expressed that he would like to know what evidence they based their opinions on and why the condition didn’t resolve when the applicant finished work with Australia Post. Dr Pillemer and Dr Maniam were not made available for cross examination. As such, their evidence was unable to be challenged and less weight will be attributed to their opinions expressed in the reports provided.
The contemporaneous medical records, particularly those of Dr Hussain on 15 December 2020 and 19 January 2021, reveal that the claimed condition was caused by activities unrelated to the applicant’s employment with Australia Post. Namely, as a result of ‘working out in the gym’. Additionally, the contemporaneous medical record of a referral by Dr Sivarajah, which advised that the applicant ‘injured right elbow while surfing’. This is further supported by the evidence of Dr Wallace.
Insofar as the applicant has suffered an ailment, being either common extensor tendinopathy of his elbows or bilateral epicondylitis, it was not contributed to, to a significant degree, by his employment with Australia Post, and therefore he has not suffered a ‘disease’ within the meaning of subsection 5B(1) of the SRC Act.
The applicant has not suffered an ‘injury’ within the meaning of subsection 5A(1) of the SRC Act.
Accordingly, Australia Post is not liable, pursuant to section 14 of the SRC Act, to pay compensation under the Act for the claimed condition.
Decision
The decision under review is affirmed.

32. I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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Associate
Dated: 15 August 2024

Date of hearing:

23 May 2024

Applicant:

Counsel for the Respondent:

Solicitor for the Respondent

Self-represented

Mr B Dean, 8 Wentworth Chambers

Ms K Oliver, Moray & Agnew Solicitors

[2024] AATA 2982

15 August 2024

Key Legal Topics

Areas of Law

Employment Law

Statutory Interpretation

Legal Concepts

Causation

Statutory Construction