Papandrea and Telstra Corporation Limited
[2012] AATA 861
•7 December 2012
[2012] AATA 861
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/4588
Re
John Papandrea
APPLICANT
And
Telstra Corporation Limited
RESPONDENT
DECISION
Tribunal Deputy President S D Hotop
Dr A Frazer, MemberDate 7 December 2012 Place Perth The Tribunal varies the decision under review by determining that the respondent is liable to pay compensation to the applicant, in accordance with s 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”), in respect of the cost of only the following medical treatment reasonably obtained by the applicant in relation to his accepted compensable injury, namely, “lateral epicondylitis (tennis elbow) of the left elbow deemed to have been sustained on 18 January 2011” (“the left elbow injury”) in the period from 29 June 2011 to 28 August 2012:
·the physiotherapy treatment (not exceeding four weekly sessions) obtained by the applicant in relation to the left elbow injury at Hedland Physiotherapy in the period from 29 June 2011 to 26 July 2011; and
·the applicant’s consultation with Mr Spencer, Orthopaedic Surgeon, in relation to the left elbow injury on 24 August 2011;
but the respondent is not liable to pay compensation to the applicant, pursuant to s 16 of the SRC Act, in relation to the left elbow injury in the period from 29 August 2012 to date and as at the present date. In all other respects, the decision under review is affirmed.
.................[sgd]..........................................
S D Hotop, Deputy President
CATCHWORDS
COMPENSATION – employee of licensed corporation – applicant claimed compensation for injury to elbows – respondent accepted liability to pay compensation to applicant for left elbow injury – respondent paid compensation to applicant for cost of medical treatment for left elbow injury until 28 June 2011 – respondent denied liability to pay compensation to applicant for right elbow condition – respondent liable to pay compensation to applicant for cost of medical treatment obtained for left elbow injury until 28 August 2012 – respondent not liable to pay compensation to applicant for right elbow condition – decision under review varied
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 5A, s 5B and s 16
REASONS FOR DECISION CLICK HERE T ENTER TEXT.
Deputy President S D Hotop
Dr A Frazer, Member7 December 2012
Introduction
John Papandrea (“the applicant”), who is aged 47 years, has been employed by Telstra Corporation Limited (“the respondent”) as a Communications Technician since March 1995.
On 21 January 2011 the applicant claimed compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) for an injury described by him as “tennis elbow syndrome L<R” and claimed by him to have affected his “elbows”. He also indicated in the claim form that:
·the injury occurred on 27 December 2010 at 11.00 am;
·he first sought medical treatment for the injury on 18 January 2011 when he consulted Dr Pamela Pollard;
·the injury was caused when he “pulled up some manhole lid hard”.
On 11 July 2011 the respondent made a determination under the SRC Act as follows:
“a. Telstra is liable to pay compensation in respect of lateral epicondylitis (tennis elbow) of the left elbow deemed to have been sustained on 18/01/2011.
b.Telstra is not liable to pay compensation in respect of medial epicondylitis (golfer’s elbow) of the right elbow, deemed to have been sustained on 08/02/2011.
c.From 29/06/2011, and as at the present date, there is no present liability to pay compensation for medical treatment or incapacity pursuant to sections 16 and 19 of the SRC Act in respect of the compensable injury of lateral epicondylitis (tennis elbow) of the left elbow deemed to have been sustained on 18/01/2011.”
On 30 September 2011 the respondent made a “reviewable decision” under s 62 of the SRC Act affirming the determination of 11 July 2011.
On 25 October 2011 the applicant made an application to the Tribunal for review of the reviewable decision of 30 September 2011.
The Evidence
The evidence before the Tribunal comprised:
·the “T Documents” (T1–T22, pp 1–61) lodged by the respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (Exhibit R1);
·Supplementary Documents (S1–S7, pp 62-176) filed by the respondent on 24 September 2012 (Exhibit R2);
·page 1 of a report of Dr Joel Silbert dated 24 June 2011 (Exhibit R3); and
·the oral evidence of the applicant and of Dr Joel Silbert.
Medical Evidence Relied on by the Applicant
Workers’ Compensation Medical Certificates
On 18 January 2011 Dr Pamela Pollard, a general practitioner, issued a Workers’ Compensation FIRST Medical Certificate which indicated that the applicant had reported that he had suffered “pain in the elbow … when lifting manhole lids” on 6 December 2010. Dr Pollard made a diagnosis of “tennis elbow syndrome L>R”, and certified the applicant as fit for restricted work duties, the specified work restriction being “No lifting anything heavier than 1 kg”, and recommended 5 physiotherapy sessions. (T4)
On 8 February 2011 Dr Mobolaji Afolabi, a general practitioner, issued a Workers’ Compensation PROGRESS Medical Certificate in which he noted that there had been “some improvement in the elbow pains” although there was “still pain when lifting”, and that clinically the applicant had “golfers elbow” of the right elbow and “tennis elbow” of the left elbow. Dr Afolabi certified the applicant as fit for restricted work duties until 8 March 2011 and recommended 6 physiotherapy sessions. (T6)
On 8 March 2011, 22 March 2011 and 3 May 2011 Dr Afolabi issued further progress medical certificates in which he certified the applicant as fit for restricted work duties and recommended regular physiotherapy sessions. (T11, T12, S4, p 149)
On 1, 15 and 29 June 2011 Dr Afolabi issued further progress medical certificates in which he certified the applicant as “fit to return to pre-disability duties, but requires further treatment” and he specified physiotherapy and home exercises. (S4, pp 150, 151, T18)
On 29 July 2011 Dr Tariq Mirza, a general practitioner, issued a progress medical certificate in which he made the following progress report:
“ Apparently the symptoms remain the same since last visit. He felt better during the past 5 days when he wasn’t doing much manual work. It would be better to have an orthopaedic specialist’s review at this stage”.
Dr Mirza certified the applicant as “fit to return to pre-disability duties, but requires further treatment” and referred him to a “visiting specialist”. (S4, p 152)
Dr Mirza’s referral letter to the visiting orthopaedic specialist at Port Hedland Regional Hospital, dated 29 July 2011, states as follows:
“ Thank you for seeing John. He is hereby referred for an expert review, and best management advice with regards to his bilateral tennis elbow features. He had the symptoms since Dec 2010 which are work related. Dr James (sic) Afolabi, his previous GP suggested having local steroid injection done at some stage.
I seek your opinion and advice regarding further management.
John who is hypertensive and also has haemochromatosis is back on his pre-injury duties though.” (S3)
Mr Spencer, Orthopaedic Surgeon, provided a report regarding the applicant to Dr Mirza, dated 24 August 2011, as follows:
“ Thank you very much for referring John, a 45 year old man who is a chronic smoker. He works for BHP (sic). John has chronic tennis elbow of his right (sic) elbow and golfers elbow on his left (sic) side. When I saw him today, his symptoms were not too bad but he has been treated for the last few months by Bryn, the physiotherapist, and recently, he has changed his job to a much less physical and repetitive job.
My feeling here is that these are chronic, repetitive strain injuries which are very typical with people of John’s age in his line of work. John tells me that he HAS (sic) changed his job to a much more sedentary type of job which sounds good. Since then his symptoms have settled to some degree. I would suggest that he carries on with the physiotherapy at this stage. He must try to avoid work which aggravates this problem. At this stage, I do not think there is any role for surgical intervention and this problem is likely to settle in due course.
…” (T20)
Letters and progress notes from Hedland Physiotherapy
Various letters from Bryn Moulds of Hedland Physiotherapy to Dr Afolabi are in evidence. The earliest of those letters is dated 8 March 2011 and states as follows:
“ Thankyou for referring John to physiotherapy for treatment to his (L) lateral epicondylitis/® medial epicondylitis injured (sic) due to likely overuse at work, with particular reference to opening and closing heavy manhole lids.
John reports both elbows have improved however continues to experience pain if ® medial elbow is knocked along with (L) common extensor origin ache during forceful gripping/resisted wrist extension activities.
…
Treatment rendered includes mobilisation, soft tissue work to (L) extensor muscles, home stretching/strengthening exercises for (L) wrist extensors/® wrist flexors. A tennis elbow brace was also issued to John.
…” (T21, p 54)
The latest of those letters is dated 29 June 2011 and states as follows:
“ Thankyou for your review and ongoing management of John for his recent re-aggravation of his ® medial epicondyle pain along with injury to his (L) medial epicondyle flexor origin following the re-commencement of normal duties at work.
John reports moderate improvement with (L) and ® medial elbows however continues to experience pain ®>(L) during certain wrist/forearm activities, towards the end of the day.
…
Treatment rendered includes soft tissue work to (L)/® CFO flexor muscles origins/musculotendinous junctions, electrotherapy modalities along with home stretches.
…” (T21, p 51)
A letter from Bryn Moulds addressed “To whom it may concern”, dated 23 September 2011, is also in evidence (T21, p 49). That letter (which is date stamped as having been received by the respondent on 26 September 2011) states as follows:
“ John presented to physiotherapy 28/01/2011 complaining of ® common flexor origin (® medial elbow pain) and (L) common extensor origin ((L) lateral elbow pain) secondary to occupational overuse while completing his duties as a Telstra technician ie manually opening manhole lids, jointing, rodding and roping etc.
John was referred to physiotherapy by Dr Pollard from Gemini Medical Centre in South Hedland.
Please find following John’s initial physiotherapy assessment notes for the 28/01/2011 along with correspondence to John’s treating medical doctor Dr James (sic) Afolabi”.
Hedland Physiotherapy progress notes relating to the applicant’s treatment in the period from 1 February 2011 to 2 August 2011 are also in evidence. (S2, pp 78-80, 82-84, 86-87).
The Applicant’s Evidence
The applicant said that, when he consulted Dr Pollard on 18 January 2011, he complained of pain in his left elbow, and that, as he was leaving, she asked him about his right elbow, whereupon he told her that he experienced pain when he “pressed down on something solid” but that that pain was “not significant”.
The applicant said that Dr Pollard referred him to a physiotherapist and that he had regular, “quite intense”, physiotherapy treatment from the end of January 2011 to the beginning of August 2011.
The applicant confirmed that he saw an orthopaedic surgeon, Mr Spencer, on 24 August 2011 and that, although Mr Spencer suggested that he continue with physiotherapy, he did not do so. He added, however, that he did continue to perform the home exercises prescribed by the physiotherapist.
The Evidence of Dr Joel Silbert
Dr Silbert, Consultant Occupational Physician, confirmed that he had assessed the applicant on 17 June 2011 at the request of the respondent’s insurer and that he had prepared a report dated 24 June 2011. Dr Silbert also confirmed that he had assessed the applicant on 29 August 2012 at the request of the respondent’s solicitors and that he had prepared a report dated 14 September 2012. He confirmed that the contents of those reports are true and correct.
Dr Silbert’s report of 24 June 2011 states as follows:
“ …
HISTORY
Mr Papandrea reports symptoms within the left elbow at work on 27 December 2010. Specifically, he recalls lifting a steel manhole lid with an approximate weight of 60kg with a pit key. At the incident of extracting the lid with his left and right hands, Mr Papandrea recalls a sharp and fleeting pain about the lateral aspect of his left elbow to a severity of 6 or 7/10. He recalls symptoms subsequently easing to a dull type discomfort at a severity of 4/10. Mr Papandrea denies any initial symptoms within his right elbow.
Mr Papandrea recalls continuing to undertake his employee duties without restriction or incident. He recalls a further episode approximately two or three days later when he grabbed his Toughbook notebook in his left hand whilst in a motor car and experienced the instantaneous onset of sharp and excruciating left elbow pains to a maximum severity of 10/10. Mr Papandrea recalls dropping the Toughbook due to his left elbow pain. He also recalls subsequently reporting the incident to his team leader.
Mr Papandrea recalls persistence if (sic) left elbow symptoms. With this, he recalls attendance with his general practitioner and being diagnosed with left more so than right lateral epicondylitis, or tennis elbow. Nonetheless, Mr Papandrea denies any right elbow pains at the time of the assessment by his treating general practitioner. Mr Papandrea recalls being referred for physiotherapy treatment and certified fit to continue at work on restricted duties.
Mr Papandrea advises of remaining compliant with his prescribed physiotherapy treatment, as well as the use of Voltaren Gel to his left elbow. He advises of persistence of moderate pain within the left elbow but enjoying a subsequent gradual easing with his treatment. Mr Papandrea advises of a cessation of his physiotherapy treatment and subsequently returning to work on his employed duties. Mr Papandrea advises of continuing to undertake all of the inherent requirements of his employed role without restriction or incident over the past three or four weeks.
PROGRESS TO DATE
Mr Papandrea reports an overall 99% recovery in the nature and extent of his left elbow symptoms and functional capabilities until approximately three days ago.
He reports experiencing forearm pains and especially about the lateral epicondyle of the left elbow to a maximum severity of 7/10. Mr Papandrea reports symptoms being precipitated with direct pressure to the lateral epicondyle, torsional strain applies (sic) by his left hand, as well as power grip pursuits with the left hand. Mr Papandrea denies any other particular aggravating features. He reports that (sic) a relative easing of symptoms with the avoidance of such activities. Otherwise, Mr Papandrea denies any other particular aggravating or relieving features.
Mr Papandrea reports fleeting sharp pains about the medial aspect of his right elbow. He reports being more shocked or surprised by the symptoms rather than any severe pain. Mr Papandrea recalls first noticing right elbow discomfort when unwinding a car window and resting his right elbow on the doorsill of his work vehicle. Mr Papandrea reports persistence of medial epicondyle pains about the right elbow for the past three days with symptoms to a maximum severity of 6 or 7/10. He reports a deterioration of symptoms with direct pressure applied to the medial epicondyle, as well as lifting or power grip pursuits with the right hand. Mr Papandrea reports a relative easing of symptoms with avoidance of such activities. Otherwise he denies any other particular aggravating or relieving features.
CURRENT TREATMENTS
Mr Papandrea advises of continuing to undertake regular attendance with his general practitioner. He reports most recent attendance on 15 June 2011. Otherwise, Mr Papandrea reports undertaking physiotherapy treatment and self-directed exercises as instructed by his physiotherapist. He advises recommendation towards a diagnostic ultrasound of his elbows should he not enjoy further improvement from the symptomatic and functional perspectives. Otherwise, Mr Papandrea denies any other current medications, treatments, not (sic) the use of aids or appliances.
CURRENT ACTIVITIES
Mr Papandrea reports continuing to undertake all of the inherent requirements of his employed role as a communications technician with Telstra on a full-time basis over the past three to four weeks. He denies any specific medical restrictions, nor the avoidance of any particular work pursuits. Otherwise, Mr Papandrea denies undertaking any current social, sporting, leisure or recreational pursuits. He reports his usual recreational activities being limited to watching sport.
PAST MEDICAL HISTORY
Mr Papandrea advises of remaining otherwise well. He reports hypertension treated on medication. Mr Papandrea also reports haemochromatosis. He denies any other previous or intercurrent medical illnesses, injuries, operations or hospitalisations. Mr Papandrea denies the use of any other regular or irregular medications and reports no known allergies.
SOCIAL AND OCCUPATIONAL HISTORY
Mr Papandrea advises of maintaining employment with Telstra as a communications technician on a full-time basis for the past 16 years and based in Port Hedland. He advises of residing in South Hedland with his wife and two children. Mr Papandrea reports utilising his available time watching sports. He denies undertaking any other current social, sporting, leisure or recreational pursuits. Mr Papandrea reports smoking twenty cigarettes per day and consuming wine with meals on a daily basis.
EXAMINATION
Examination findings at the consultation of 17 June 2011 revealed a forthright and reliable historian in no distress. Mr Papandrea was noted to move freely and fluidly with no obvious deformity or gait disturbance. Mr Papandrea was noted to stand 175cm tall and weighed 75 kg.
Examination of the left and right elbows at the consultation of 17 June 2011 was normal. There was no evidence of any swellings, deformity, surgical or traumatic scarring. A full range of pain free movement was demonstrated. Provocative testing of all structures about the left elbow and about the right elbow was normal. Specifically, there was no evidence of medial or lateral epicondylitis of the left elbow, nor of the right elbow. The remainder of the examination of the left and right upper limbs was normal. Examination of the cervicothoracic spine was normal.
INVESTIGATIONS
An x-ray and ultrasound of the right and left shoulders (sic), performed on 17 June 2011, was reported as:
Both studies are considered within normal limits. There is no tendon injury identified.
ASSESSMENT
In my opinion, Mr Papandrea presents with a reported history of left lateral epicondylitis and right medial epicondylitis. A complete recovery of both left and right elbow pathologies was noted at the consultation of 17 June 2011. This is confirmed on Mr Papandrea’s reported nature and extent of symptoms, examination findings and radiological investigations undertaken, to date.
QUESTIONS
With regard to the questions that you raise in your request of 15 April 2011:
1.Mr John Papandrea claims to have suffered a ‘Tennis Elbow Syndrome LCR (sic)’ (claimed injury) as a result of work duties on 27 December 2010. Did Mr Papandrea suffer a condition that:
(a)Arose out of or in the course of, or was significantly contributed to, to a significant degree by his employment with Telstra? (sic)
(b)Is an aggravation of a pre-existing condition was that contributed to, to a significant degree by his employment with Telstra? (sic)
In my opinion, Mr Papandrea is considered to have sustained a left lateral epicondylitis, or tennis elbow, arising from activities undertaken by him in the work place on 27 December 2010. This is considered to be pathology arising out of, or in the course, Mr Papandrea’s employment with Telstra. There is no evidence of any pre-existing condition for which symptoms are considered to be an aggravation of any pre-existent condition.
2.If you consider Mr Papandrea did suffer a condition that arose out of (a) or (b) above:
(a)What is your diagnosis of the condition sustained?
(b)Please describe exactly how the employment contributed to (sic), and to what extent.
In my opinion Mr Papandrea presents with:
1. Left Elbow
1.1Lateral epicondylitis (tennis elbow).
1.2Secondary to acute musculoskeletal trauma (date of injury 27 December2010).
1.3 Resolved.
2. Right Elbow
2.1 Reported medial epicondylitis (golfer’ (sic) elbow).
2.2No evidence of direct casual (sic), temporal, or other association with Mr Papandrea’s workplace pursuits.
2.3Resolved.
In my opinion, Mr Papandrea’s left elbow lateral epicondylitis (tennis elbow) is considered to have arisen through an acute musculoskeletal trauma sustained to the lateral epicondyle and associated with Mr Papandrea negotiating a manhole lid with a pit key at work on 27 December 2010.
3.Is there any pre-existing or non-work related medical history or condition relevant to the claim (sic) injury?
In my opinion, there is no evidence of any pre-existent or non-work related medical history or condition relevant to Mr Papandrea’s injury.
...
6.From what condition does Mr Papandrea currently suffer?
In my opinion, Mr Papandrea present (sic) with a complete recovery of his left and right elbow previously reported symptoms and previously diagnosed as a left lateral epicondylitis (tennis elbow) and a right medial epicondylitis (golfer’s elbow). There is no evidence of any residual symptoms or dysfunction identified at the consultation of 17 June 2011. This is confirmed on the basis of normal examination findings and normal radiological investigations undertaken on 17 June 2011.
…
8.Does Mr Papandrea continue to suffer the effects of the claimed injury?
In my opinion, there is no evidence that Mr Papandrea continues to suffer from any effects of the claimed injury of 27 December 2010.
…
10.…
In my opinion, Mr Papandrea is considered to have achieved a complete recovery of all symptoms and a full restoration of normal functioning. There is no evidence that Mr Papandrea requires any forms of medications, treatments nor the use of aids or appliances. Furthermore, Mr Papandrea is considered to be at nil increased risk of recurrence or deterioration of his symptoms in the longer term as a direct manifestation of his reported injury of 27 December 2010. Mr Papandrea is deemed fit to undertake his employed duties, as well as all social, sporting, leisure and recreational pursuits with (sic) restriction or incident.
11.Does Mr Papandrea currently suffer any incapacity for employment as a result of the claimed injury?
In my opinion, Mr Papandrea is considered fit to undertake all if (sic) the inherent requirements if (sic) his employed role as a communications technician on a full-time and unrestricted basis with a capacity for shift work and overtime. There is no indication to consider any specific medical restrictions as a direct manifestation of Mr Papandrea’s reported left elbow injury of 27 December 2010.
…” (Exhibit R1, T17)
In his report of 14 September 2012 Dr Silbert reiterated the history and assessment set out in his abovementioned report of 24 June 2011 and continued:
“ …
Progress to Date
Mr Papandrea reports, subsequent to his initial assessment of 17 June 2011, of remaining entirely asymptomatic with regard to both his left and right elbows and for a period of 12 months, until the onset of some left elbow discomfort and right elbow discomfort, in June 2012. Mr Papandrea recalls the symptoms arising at the time of undertaking a job in Newman, Western Australia, as part of his employed duties with Telstra and as a communications technician.
Left Elbow
Mr Papandrea recalls the insidious onset and gradual development of some discomfort about the lateral aspect of his left elbow in June 2012. He denies a specific incident but recalls the onset of symptoms concurrent with undertaking a job in Newman, Western Australia. Mr Papandrea recalls the onset of symptoms in the identical location as that previously experienced, being about the lateral epicondyle and common extensor origin. He recalls an aching-type discomfort at approximately 5/10 in severity.
Mr Papandrea recalls the commencement of a trial of Voltaren Gel and the massage of Goanna Oil into his left elbow. He recalls an improvement of his symptoms. Mr Papandrea reports the subsequent cessation of his Voltaren Gel and continuing with Goanna Oil twice per day. Otherwise, he denies any other medical or allied health management.
Current Symptoms
Left Elbow
Mr Papandrea reports an overall deterioration in the nature and extent of his left elbow, subsequent to the onset of left elbow pain about June 2012. He reports his left elbow deteriorating to approximately 50% of his pre-injury state. He reports constant aching about the common extensor origin and worst in the mornings on waking. He reports symptoms to a maximum 6 or 7/10 in severity. Otherwise, Mr Papandrea reports a persistent background, annoying and dull pain. He reports a deterioration of his symptoms with lifting weights with the left hand maintained in a prone (palm down) position, twisting or torsional strain applied by the left hand, or direct pressure to the left common extensor origin or lateral epicondyle. He reports a relative easing of symptoms with the avoidance of such activities and persisting with his symptoms (or living with it). Otherwise, Mr Papandrea denies any other particular aggravating or relieving features.
Right Elbow
Mr Papandrea recalls the insidious onset and gradual development of right elbow pains, about the same time as the onset of his left elbow pain and being June 2012. He recalls symptoms arising concurrent with undertaking a job in Newman, Western Australia, and associated with his employed duties as a communications technician with Telstra. He recalls symptoms being less severe than that of his left elbow and being approximately 3/10 in severity. Mr Papandrea also recalls symptoms remaining confined about the medial aspect of the right elbow. He recalls symptoms deteriorating with lifting weights with the right hand maintained in the supine (palm up) position, or direct trauma applied to the medial aspect of his elbow. He recalls symptoms not being precipitated or deteriorating with twisting or torsional strain applied by his right hand.
Mr Papandrea also recalls some discomfort about the lateral aspect of his right elbow with massage.
Mr Papandrea reports an overall deterioration in the nature and extent of his right elbow symptoms and functional capabilities. He reports his right elbow also deteriorating to approximately 50% of his pre-injury state. Mr Papandrea reports persistence of a background ache within the right elbow and especially on arising in the morning. He recalls pains in the right elbow deteriorating to a maximum 5/10 in severity and being an ache about the medial epicondyle and common flexor origin. Mr Papandrea reports symptoms deteriorating with direct pressure or trauma to the medial aspect of his right elbow, or lifting weights with his right hand maintained in the supine (palm up) position. Mr Papandrea also reports some pain about the right elbow common extensor origin, with massage. He reports a relative easing of his symptoms with the avoidance of activities likely injurious to the right elbow. Otherwise, Mr Papandrea denies any other particular aggravating or relieving features.
Current Treatments
Mr Papandrea reports continuing Goanna Oil massaged into his left and right elbows twice per day. He denies any other current medications, treatments, nor the use of aids or appliances.
Current Activities
Mr Papandrea reports continuing to undertake all of the inherent requirements of his employed role on a full-time and unrestricted basis. He reports performing all of the duties of a communications technician for Telstra and servicing BHP Billiton Iron Ore within their mining operations in Newman, Western Australia, as well as Port Hedland. He reports otherwise undertaking the duties of a service technician with Telstra and within his employed duties. He reports utilising the remainder of his available time watching sport or growing tomatoes and chillies. Mr Papandrea denies any other current social, sporting, leisure or recreational pursuits.
Past Medical History
Mr Papandrea advises of remaining otherwise well. He denies any recent medical illnesses, injuries, operations or hospitalisations, subsequent to Mr Papandrea’s initial assessment of 17 June 2011. Mr Papandrea continues to report hypertension, treated on medication, and haemochromatosis. Otherwise, he denies any other previous or intercurrent medical illnesses, injuries, operations or hospitalisations. Mr Papandrea denies the use of any other regular or irregular medications, with the exception of Goanna Oil massaged into his left and right elbow twice per day. Mr Papandrea denies any allergies.
Social and Occupational History
Mr Papandrea advises of continuing to maintaining (sic) employment with Telstra as a communications technician on a full-time basis and for the past 17 years. He reports being based in Port Hedland, as well as undertaking duties in Newman. Mr Papandrea advises of residing in South Hedland with his wife and two children. He again reports utilising his available time watching sports and growing tomatoes and chillies. Mr Papandrea denies any other current social, sporting, leisure or recreational pursuits. Mr Papandrea again reports smoking 20 cigarettes per day and consuming wine with meals on a daily basis.
Examination
Examination findings at the consultation of 29 August 2012 again revealed a forthright and reliable historian in no distress. Mr Papandrea was again noted to move freely and fluidly with no obvious deformity or gait disturbance. Mr Papandrea was again noted to stand 175 cm tall and weighed a reported 70 kg.
Examination of the left elbow at the consultation of 29 August 2012 revealed no evidence of any swellings, deformity, surgical or traumatic scarring. A full range of pain free movement of the left elbow was demonstrated. Mild discomfort was reported within the common extensor origin at the extremes of power grip of the left hand. Otherwise, the remainder of the examination of the left elbow was normal. Provocative testing of all structures about the left elbow was normal.
Examination of the right elbow revealed no evidence of any swellings, deformity, surgical or traumatic scarring. A full range of pain free movement of the right elbow was demonstrated. Mild discomfort was reported within the common extensor origin and common flexor origin at the extremes of power grip of the right hand and palpation respectively of the common extensor origin and common flexor origin. Otherwise, the remainder of the right elbow was normal. Provocative testing of all structures was normal.
Examination of the cervical spine was normal. A full range of pain free movement was demonstrated. Examination of the thoracic spine was also normal. A full range of pain free movement was also demonstrated.
…
Assessment
In my opinion, Mr Papandrea is considered to present with a clinical picture consistent with a left elbow lateral epicondylitis/common extensor origin tendinopathy (tennis elbow) and a right elbow medial epicondylitis (golfer’s elbow). The possibility of a right elbow lateral epicondylitis/common extensor origin tendinopathy (tennis elbow) cannot be excluded. Nonetheless, there is only weak evidence to support the presence of such pathology at the consultation of 29 August 2012.
Questions
With regard to the questions that you raise in your request of 20 August 2012:
Left Elbow
1.Whether the applicant presently continues to suffer from any medical condition in respect of his left elbow including the accepted injury.
In my opinion, Mr Papandrea presents with a clinical picture consistent with a mild left elbow lateral epicondylitis/common extensor origin tendinopathy (tennis elbow).
In my opinion, Mr Papandrea is considered to present with ongoing pathology within the left elbow that has arisen on or about June 2012. The pathology identified within the left elbow is considered to have arisen subsequent, but entirely unrelated, to Mr Papandrea’s reported initial injury of 27 December 2012.
Mr Papandrea reported at the consultation of 29 August 2012 of having enjoyed an overall 99% recovery in the nature and extent of his left and right elbow symptoms and functional capabilities. On further detailed questioning, Mr Papandrea reported a period of several months without any symptoms within the left or right elbows. He denied any dysfunction associated with the left or right elbows and denied the avoidance of any particular work place or recreational pursuits. Mr Papandrea also denied a requirement for any medications, treatments, nor the use of aids or appliances. With this, and despite Mr Papandrea’s reporting of a 99% (rather than 100%) recovery, Mr Papandrea denied any abnormality of the left or right elbows to support a less than 100% recovery of his reported injury of 27 December 2012.
In my opinion, Mr Papandrea is considered to present with a period of approximately 1 year of remaining entirely asymptomatic and without any evidence of residual symptoms or dysfunction of the left or right elbows. He is noted to have undertaken all of the inherent requirements of his employed role, as well as all social, sporting, leisure and recreational pursuits during this period. Given the natural history of lateral epicondyilitis/common extensor origin tendinopathy (tennis elbow), Mr Papandrea is considered to have achieved a complete recovery of all manifestations of his initial injury of 27 December 2010. The onset of symptoms within the left elbow on or about June 2012 is considered to have arisen subsequent to the injury of 27 December 2010 and without any evidence to support a direct causal, temporal, or other relationship with his reported initial injury of 27 December 2010.
2. If you consider that he does:
2.1 What is your diagnosis of the condition?
In my opinion, Mr Papandrea is considered to present with a left lateral epicondylitis/common extensor origin tendinopathy (tennis elbow).
2.2 Was the condition contributed to, to a significant degree by his employment?
In my opinion, there is no evidence of Mr Papandrea’s left elbow lateral epicondylitis/common extensor origin tendinopathy (tennis elbow) having been contributed to a significant degree by his employment either on or about 27 December 2010 or about June 2012.
I bring to your attention the nature and extent of activities reported to have been undertaken by Mr Papandrea over the past 1 year. He reports undertaking all of the inherent requirements of his employed role without restriction or incident. He denies any specific, particular, unusual, or other activities about June 2012. Mr Papandrea reports the insidious onset and gradual development of left elbow symptoms at that time. There is no evidence of any specific activities or an event to account for the onset of Mr Papandrea’s left elbow symptoms. In the absence of this, there was no evidence to support a direct causal, temporal, or other relationship between Mr Papandrea’s onset of left elbow symptoms and his employed duties and to a significant degree. Furthermore, the onset of Mr Papandrea’s left elbow symptoms may be accounted for by any manner of physical pursuits with the left arm generally as part of normal activities of day to day living or recreational pursuits.
2.3 If yes to 2.2 above, whether as of 26 (sic) June 2011 and/or as of the time of your current examination, the applicant has suffered from any incapacity as a communications technician as a result of such condition(s), and/or required any medical treatment in respect of same.
Not applicable.
Right Elbow
3.Whether the applicant presently continues to suffer from any medical condition in reports (sic) of his right elbow.
In my opinion, Mr Papandrea presents with a clinical picture consistent with a mild right elbow medial epicondylitis/common flexor origin tendinopathy (golfer’s elbow).
In my opinion, Mr Papandrea is considered to present with ongoing pathology within the right elbow that has arisen on or about June 2012. The pathology identified within the right elbow is considered to have arisen subsequent, but entirely unrelated, to Mr Papandrea’s reported initial injury of 27 December 2010.
Mr Papandrea reported at the consultation of 29 August 2012 of having enjoyed an overall 99% recovery in the nature and extent of his left and right elbow symptoms and functional capabilities. On further detailed questioning, Mr Papandrea reported a period of several months without any symptoms within the left or right elbows. He denied any dysfunction associated with the left or right elbows and denied the avoidance of any particular work place or recreational pursuits. Mr Papandrea also denied a requirement for any medications, treatments, nor the use of aids or appliances. With this, and despite Mr Papandrea’s reporting of a 99% (rather than 100%) recovery, Mr Papandrea denied any abnormality of the left or right elbows to support a less than 100% recovery of his reported injury of 27 December 2010.
In my opinion, Mr Papandrea is considered to present with a period of approximately 1 year of remaining entirely asymptomatic and without any evidence of residual symptoms or dysfunction of the left or right elbows. He is noted to have undertaken all of the inherent requirements of his employed role, as well as all social, sporting, leisure and recreational pursuits during this period. Given the natural history of medial epicondylitis/common flexor origin tendinopathy (golfer’s elbow), Mr Papandrea is considered to have achieved a complete recovery of all manifestations of his initial injury of 27 December 2010. The onset of symptoms within the right elbow on or about June 2012 is considered to have arisen subsequent to the injury of 27 December 2010 and without any evidence to support a direct causal, temporal, or other relationship with his reported initial injury of 27 December 2010.
4.If you consider that he does:
4.1 What is your diagnosis of the condition?
In my opinion, Mr Papandrea is considered to present with a right medial epicondylitis/common flexor origin tendinopathy (golfer’s elbow).
4.2 Was the condition contributed to, to a significant degree by his employment?
In my opinion, there is no evidence of Mr Papandrea’s right elbow medial epicondylitis/common flexor origin tendinopathy (golfer’s elbow) having been contributed to a significant degree by his employment either on or about 27 December 2010 or about June 2012.
I bring to your attention the nature and extent of activities reported to have been undertaken by Mr Papandrea over the past 1 year. He reports undertaking all of the inherent requirements of his employed role without restriction or incident. He denies any specific, particular, unusual, or other activities about June 2012.
Mr Papandrea reports the insidious onset and gradual development of right elbow symptoms at that time. There is no evidence of any specific activities or an event to account for the onset of Mr Papandrea’s right elbow symptoms. In the absence of this, there was no evidence to support a direct causal, temporal, or other relationship between Mr Papandrea’s onset of right elbow symptoms and his employed duties and to a significant degree. Furthermore, the onset of Mr Papandrea’s right elbow symptoms may be accounted for by any manner of physical pursuits with the right arm generally as part of normal activities of day to day living or recreational pursuits.
4.3 If yes to 2.2 above, whether as of 26 (sic) June 2011 and/or as of the time of your current examination, the applicant has suffered from any incapacity as a communications technician as a result of such condition(s), and/or required any medical treatment in respect of same.
Not applicable.
5. Please provide any other comments or observations you consider relevant.
In my opinion, Mr Papandrea presents with a history of left and right elbow pain. Whilst he reports period of 1 year between June 2011 and June 2012 of remaining 99% recovered, Mr Papandrea denies any symptoms, restrictions, dysfunction, nor treatments for his left or right elbows. Indeed, he reports a complete absence of any sequelae of his previous left or right elbow injuries of 2010/2011. Mr Papandrea advises of undertaking all of his normal work place pursuits, as well as all social, sporting, leisure and recreational activities without restriction or incident. With this, Mr Papandrea presents with a clinical picture of a complete recovery of any manifestations or residua of his left or right elbow pathologies previously addressed at the consultation of 17 June 2011.
Mr Papandrea is noted to now present with reported left and right elbow pain. These symptoms are considered to have arisen about June 2012 and as reported by Mr Papandrea. Such symptoms are considered to have arisen concurrent with, but entirely unrelated to, his employment. There is weak evidence supportive of left and right elbow pathology. Such pathologies may be pursued for further medical investigation/assessment and consideration towards specific treatment. This may be undertaken by Mr Papandrea’s treating medical practitioner.
…” (Exhibit R2, S6)
In his oral evidence Dr Silbert reiterated the statements and opinions expressed in his two abovementioned reports, and it is unnecessary to refer in detail to his oral evidence in these reasons.
The Relevant Legislation
Pursuant to s 14(1) and Part VIII of the SRC Act, the respondent “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 word “injury” is relevantly defined in s 5A(1) of the SRC Act to mean:
“ (a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, 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), that is an aggravation that arose out of, or in the course of, that employment;”.
The word “disease” is defined in s 5B(1) of the SRC Act to mean:
“ (a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.”
Section 5B(3) provides:
“ In this Act:
significant degree means a degree that is substantially more than material.”
Section 16 of the SRC Act provides for the payment of compensation in respect of the cost of “medical treatment” reasonably obtained in relation to a compensable “injury”. Pursuant to s 16(2), the liability to pay such compensation applies “whether or not the injury results in death, incapacity for work, or impairment”. The phrase “medical treatment” is defined in s 4(1) of the SRC Act to mean (inter alia):
“(a) medical or surgical treatment by, or under the supervision of, a legally qualified medical practitioner; or
…
(d)therapeutic treatment by, or under the supervision of, a physiotherapist … registered under the law of a State or Territory providing for the registration of physiotherapists …; or
…”
Section 19 of the SRC Act provides for the payment of compensation by way of payments in respect of loss of earnings arising from incapacity for work resulting from a compensable “injury”. Section 4(9) of the SRC Act provides:
“ A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a) an incapacity to engage in any work; or
(b)an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.”
The Issues
The issues which arise for determination in this proceeding are as follows:
·whether the respondent has continued to be liable, on and from 29 June 2011, to pay compensation, in accordance with the SRC Act, to the applicant in respect of his compensable “injury”, namely, “lateral epicondylitis (tennis elbow) of the left elbow deemed to have been sustained on 18 January 2011” (“the left elbow injury”);
·whether the respondent is liable, pursuant to s 14(1) and Part VII of the SRC Act, to pay compensation to the applicant in respect of his right elbow.
Analysis and Findings
Has the respondent continued to be liable, on and from 29 June 2011, to pay compensation, in accordance with the SRC Act, to the applicant in respect of the left elbow injury?
It is common ground that the applicant has not suffered, and is not presently suffering, any loss of earnings as a result of the left elbow injury and that, accordingly, the respondent is not liable to pay compensation to him, pursuant to s 19 of the SRC Act, in respect of that injury. The Tribunal so finds.
The parties are, however, in dispute regarding whether the respondent is liable to pay compensation to the applicant, pursuant to s16 of the SRC Act, in respect of the cost of medical treatment obtained by him in relation to the left elbow injury after 28 June 2011.
It appears to be common ground that the only “medical treatment”, within the meaning of s 16 of the SRC Act, obtained by the applicant, at his expense, in relation to the left elbow injury after 28 June 2011 comprises the following:
·physiotherapy treatment by Bryn Moulds, Physiotherapist, at Hedland Physiotherapy in the period from 29 June 2011 to 2 August 2011;
·a consultation with Mr Jonathan Spencer, Orthopaedic Surgeon, on 24 August 2011 (see paragraphs 13 and 19 above).
The Tribunal, having regard to the whole of the evidence before it, is satisfied that that is the case, and it so finds.
The Tribunal, notes the opinion of Dr Silbert that, as at 17 June 2011 when he first examined the applicant, the applicant had fully recovered from the effects of the left elbow injury which he in fact sustained on 27 December 2010.
The Tribunal also notes, on the other hand, that:
·on 29 June 2011 the applicant’s general practitioner, Dr Afolabi, whom he had been seeing in relation to the left elbow injury from 8 February 2011, issued a progress medical certificate in which he certified that, although the applicant was “fit to return to pre-disability duties”, he “require(d) further treatment”, namely, physiotherapy, and he recommended one physiotherapy session per week, and he specified the date of the next medical appointment as 27 July 2011 (Exhibit R1, T18);
·on 29 July 2011 Dr Mirza, a general practitioner (at the same medical practice as Dr Afolabi), issued a progress medical certificate in which he certified that, although the applicant was “fit to return to pre-disability duties”, he “require(d) further treatment”, and, for that purpose, he referred him to the visiting orthopaedic specialist at Port Hedland Regional Hospital (Exhibit R2, pp 152, 88);
·on 24 August 2011 the applicant was assessed by Mr Spencer, Orthopaedic Surgeon, following the abovementioned referral by Dr Mirza, and, in a report of that date to Dr Mirza, Mr Spencer described the applicant’s bilateral elbow symptoms as “not too bad” and as having “settled to some degree”, and he suggested that the applicant continue with physiotherapy (Exhibit R1, T20).
On the basis of the evidence referred to in paragraph 33 above, the Tribunal is satisfied, and finds, that the applicant continued to experience symptoms in relation to the left elbow injury from 29 June 2011 to 24 August 2011 (when he was examined by Mr Spencer) and was continuing to experience such symptoms as at 24 August 2011. The Tribunal is also satisfied, and finds, that:
·by reason of the abovementioned progress medical certificate issued by Dr Afolabi on 29 June 2011, whereby Dr Afolabi recommended that the applicant attend one session of physiotherapy per week in the 4-week period covered by that medical certificate (namely, 29 June 2011–26 July 2011), it was reasonable, for the purposes of s 16 of the SRC Act, for the applicant to obtain physiotherapy treatment on a weekly basis in relation to the left elbow injury in that period;
·by reason of the abovementioned progress medical certificate issued by Dr Mirza on 29 July 2011 and his referral of the applicant to the visiting orthopaedic specialist “for an expert review, and best management advice with regards to his bilateral tennis elbow features” on that date, it was reasonable, for the purposes of s 16 of the SRC Act, for the applicant to attend upon Mr Spencer on 24 August 2011 for the purpose of undergoing that review and obtaining that advice in relation to the left elbow injury.
There is no medical evidence before the Tribunal relating to the effects of the left elbow injury in the period from 25 August 2011 until 29 August 2012 when the applicant was again examined by Dr Silbert. In his report of 14 September 2012 in respect of that examination, Dr Silbert reiterated his opinion that the applicant had completely recovered from the effects of the left elbow injury. There being no medical evidence before the Tribunal which contradicts that opinion as at the date of Dr Silbert’s examination of the applicant on 29 August 2012, the Tribunal accepts that opinion and, accordingly, finds that the applicant had fully recovered from the effects of the left elbow injury as at 29 August 2012. However, given the Tribunal’s finding (in paragraph 34 above) that the applicant was continuing to experience symptoms in relation to the left elbow injury on 24 August 2011, the Tribunal, in the absence of medical evidence before it relating to the effects of the left elbow injury in the period from 25 August 2011 to 28 August 2012, is not satisfied that the applicant had fully recovered from the effects of the left elbow injury in that period.
The Tribunal concludes, therefore, that the respondent has continued to be liable to pay compensation, in accordance with s 16 of the SRC Act, to the applicant in respect of the left elbow injury from 29 June 2011 to 28 August 2012 but has not been so liable from 29 August 2012 to date and is not so liable as at the present date.
As regards the amount of compensation which the respondent is liable to pay to the applicant in accordance with s 16 of the SRC Act, the Tribunal determines as follows:
·the respondent is liable to pay for the cost of up to four weekly sessions of physiotherapy treatment obtained by the applicant in relation to the left elbow injury at Hedland Physiotherapy in the period from 29 June 2011 to 26 July 2011;
·the respondent is liable to pay for the cost of the applicant’s consultation with Mr Spencer in relation to the left elbow injury on 24 August 2011.
Is the respondent liable, pursuant to s 14(1) and Part VIII of the SRC Act, to pay compensation to the applicant in respect of his right elbow?
It is common ground that the applicant suffers from the condition of medial epicondylitis (golfer’s elbow) of the right elbow (“the right elbow condition”), and, on the basis of the medical evidence before it, the Tribunal so finds.
The matter for the Tribunal’s determination is whether the right elbow condition is a compensable “injury” for the purposes of the SRC Act. That condition would be such a compensable “injury” if (relevantly) it is an injury “arising out of, or in the course of,” the applicant’s employment by the respondent, within the meaning of s 5A(1)(b) of the SRC Act, or it was “contributed to, to a significant degree, by” the applicant’s employment by the respondent, within the meaning of s 5B(1) of the SRC Act.
Although the Workers’ Compensation FIRST Medical Certificate issued by Dr Pollard on 18 January 2011 described the relevant injury as “tennis elbow syndrome L<R”, thereby implying that both of the elbows were involved, and the applicant’s claim for compensation indicated that his “elbows” were affected by the injury for which he was claiming compensation, his oral evidence was that he consulted Dr Pollard on 18 January 2011 complaining only of pain in his left elbow resulting from his employment activity of pulling up manhole lids in December 2010 and that, it was only as he was leaving Dr Pollard’s surgery that she asked him about his right elbow, whereupon he told her that he experienced pain when he “pressed down on something solid”. The Tribunal notes that, although the applicant, when he saw Dr Pollard on 18 January 2011, did not refer to any right elbow pain in connection with the employment activity of pulling up manhole lids in December 2010, subsequent progress workers’ compensation medical certificates issued by Dr Afolabi in relation to the applicant’s compensation claim arising out of that activity referred to both of the applicant’s elbows. The Tribunal also notes that Dr Afolabi diagnosed the applicant’s right elbow condition as “golfers elbow” on 8 February 2011 (see T6 and S4, p 99).
Dr Silbert’s evidence was that the applicant had told him that he experienced left elbow symptoms when lifting a steel manhole lid in the course of his employment on 27 December 2010, but not right elbow symptoms. According to Dr Silbert, the applicant told him that he first noticed right elbow discomfort on a subsequent occasion when he unwound a window of his work vehicle and rested his right elbow on the doorsill of the vehicle. In his report of 24 June 2011 Dr Silbert stated that there was “no evidence of direct casual (sic), temporal, or other association with Mr Papandrea’s work place pursuits”. Similarly, in his report of 14 September 2012 Dr Silbert opined that the applicant presented with “a clinical picture consistent with a mild right elbow medial epicondylitis/common flexor origin tendinopathy (golfer’s elbow)” and that his right elbow pathology had “arisen subsequent, but entirely unrelated, to [his] reported initial injury of 27 December 2010”.
On the basis of the medical certificate issued by Dr Afolabi on 8 February 2011 (T6) and Dr Afolabi’s clinical notes of that date (S4, p 99), the Tribunal finds that the applicant was suffering from the right elbow condition on 8 February 2011. Having regard to the applicant’s oral evidence and to the evidence of Dr Silbert, however, the Tribunal is satisfied, and finds, that the right elbow condition did not “arise out of, or in the course of,” the applicant’s employment by the respondent, within the meaning of s 5A(1)(b) of the SRC Act, and was not “contributed to, to a significant degree, by” the applicant’s employment by the respondent, within the meaning of s 5B(1) of the SRC Act.
Accordingly, the Tribunal determines that the right elbow condition is not a compensable “injury” for the purposes of the SRC Act, and that the respondent is, therefore, not liable, pursuant to s 14(1) and Part VIII of the SRC Act, to pay compensation to the applicant in respect of the right elbow condition.
Decision
For the above reasons, the Tribunal varies the decision under review by determining that the respondent is liable to pay compensation to the applicant, in accordance with s 16 of the SRC Act, in respect of the cost of only of the following medical treatment reasonably obtained by the applicant in relation to the left elbow injury in the period from 29 June 2011 to 28 August 2012:
·the physiotherapy treatment (not exceeding four weekly sessions) obtained by the applicant in relation to the left elbow injury at Hedland Physiotherapy in the period from 29 June 2011 to 26 July 2011; and
·the applicant’s consultation with Mr Spencer, Orthopaedic Surgeon, in relation to the left elbow injury on 24 August 2011;
but the respondent is not liable to pay compensation to the applicant, pursuant to s 16 of the SRC Act, in relation to the left elbow injury in the period from 29 August 2012 to date and as at the present date. In all other respects, the decision under review is affirmed.
I certify that the preceding 44 (forty four) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop and Dr A Frazer, Member
........[sgd D Brodie]..............................
Administrative Assistant
Dated 7 December 2012
Date of hearing 8 November 2012 Representative of the Applicant Self-represented Counsel for the Respondent Mr C Clark Solicitors for the Respondent Australian Government Solicitor
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