Proud and Australian Postal Corporation - [2002] AATA 892

DECISION AND REASONS FOR DECISION [2002] AATA 892

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/689

GENERAL ADMINISTRATIVE DIVISION          )
           Re      ALAN JAMES PROUD
  Applicant
           And    AUSTRALIAN POSTAL CORPORATION
  Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member Dr J D Campbell, Member

Date4 October 2002
PlaceSydney

Decision      The tribunal affirms the decision under review and notes that Mr Proud is entitled to no costs in association with this application.
  [SGD] M J SASSELLA
   Senior Member
CATCHWORDS
WORKERS' COMPENSATION – rotator cuff disease of right shoulder with tearing of supraspinatus muscle – whether a compensable injury – whether a compensable disease – whether mail sorting work contributed to disease – whether employee's sporting injuries were cause of disease – tribunal holds no compensable injury or disease

Safety, Rehabilitation and Compensation Act 1988 ss 4(1) ("ailment", "disease", "injury"), 19, 53

REASONS FOR DECISION

4 October 2002 Mr M J Sassella, Senior Member Dr J D Campbell, Member

THE APPLICATION

This is an application to the Administrative Appeals Tribunal ("the tribunal") by Alan James Proud ("the applicant"), born 29 May 1947 (T1), for review of a decision of the Australian Postal Corporation ("the respondent") dated 7 May 2001 (T31) affirming a decision dated 31 October 2000 (T26) to reject a claim for compensation made by the applicant and dated 21 August 2000 (T23).
THE HEARING
The tribunal convened a hearing in this matter in Sydney on 4 April 2002. Mr Justin Young of counsel represented Mr Proud. Miss R M Henderson of counsel represented the respondent. The tribunal heard oral evidence from the applicant, from Mr T Barley, from Dr D Bray and Dr N W McGill. The following documents were taken into evidence:

Exhibit TD1 – Section 37 Statement and associated documents (exhibits T1 – T32) provided by the respondent.
Exhibit A1 – Applicant's statement of facts and contentions, 18 October 2001.
Exhibit A2 – Report by Dr K Ostinga, orthopaedic surgeon, 15 October 2001.
Exhibit A3 – Report by Dr Ostinga, 10 December 2001.
Exhibit A4 – Report by Dr P M Furey, occupational physician, 5 November 2001.
Exhibit A5 – NIB statement of claims and Health Insurance Commission notice of charge dated 13 March 2002.
Exhibit R1 – Respondent's statement of facts and contentions, 28 November 2001.
Exhibit R2 – Report (4 pp) by Dr D Bray, orthopaedic surgeon, 9 August 2001.
Exhibit R3 – Report (1 p) by Dr Bray, 9 August 2001.
Exhibit R4 – Report by Dr N W McGill, rheumatologist, 5 November 2001.
Exhibit R5 – "All In a Day's Work" – Australia Post publication.
Exhibit R6 – Applicant's claim for veterans' entitlements, 14 March 1996.
Exhibit R7 – Report by physiotherapist Carolyn Fay dated 11 November 1998.
Exhibit R8 – Report by Ms Fay, 9 December 1998.
Exhibit R9 - Report by Dr Ostinga, 12 January 1999.
Exhibit R10 – Report by Dr Ostinga, 13 April 1999.
Exhibit R11 – Report by Dr L Darcy, psychiatrist, 26 November 1998.

THE EVIDENCE

The applicant has a shoulder problem in respect of which he has claimed generally for compensation and for compensation for permanent impairment of the right shoulder. He has had the following compensation history:

On 20 October 1993 Mr Proud submitted an incident report in respect of right side lower back pain (T3/7). This led to a claim dated 14 November 1993 (T3/11) which was accepted on 17 December 1993 (T3/14). Mr Proud received incapacity payments under s 19 of the Safety, Rehabilitation and Compensation Act 1988 ("the Act") for four days.
On 23 November 1994 Mr Proud lodged an incident report to the effect that he had muscular pain in the right shoulder which came on during mail sorting (T6/31). On 6 December 1994 Mr Proud lodged a claim for an inflamed tendon – right shoulder (T6/35). Australia Post denied liability on 17 March 1995 (T11). Liability was denied on a number of grounds. These included that the incident was not reported to the supervisor when it happened. Mr Proud was said by a colleague to have complained about his shoulder a few days before the incident. Initial reports of the condition did not suggest a work relationship. Mr Proud's general practitioner, Dr Hashmi, saw Mr Proud on 23 and 30 November 1994 and he did not indicate that work or a specific incident caused the condition. Dr J Graham on 29 November 1994 stated that Mr Proud played competitive tennis and squash and for a few days leading up to 23 November 1994 had noticed aching in the right shoulder. Dr Graham did not relate the condition to Mr Proud's employment. Dr C Hollo reported on 1 December 1994 that he presented with aching in the right shoulder exacerbated through certain activities which engendered a catching sensation. She recorded that he denied any specific event had occurred at work to generate the symptoms and that there had been no event in the preceding days at work or in non-work hours to set off the symptoms. She noted that he played weekly squash and competition tennis and that he had played squash two days before the onset of symptoms. Dr Hollo did not see work duties as the sole cause of the onset of symptoms.
Mr Proud did not question this decision and took no further steps in relation to compensation for five years.
On 9 May 2000 Mr Proud lodged a claim for compensation for the permanent impairment of his right shoulder (T18). On 24 May 2000 this claim was rejected because there was no ongoing workers' compensation liability reposed in Australia Post. The decision-maker noted the decision taken on 17 March 1995 denying liability which had not been challenged.
On 21 August 2000 Mr Proud lodged the claim that founded the current application to the tribunal (T23).

The claim in question was for rotator cuff syndrome of the right shoulder. It had first been noticed in October 1993, which was when medical attention was sought for it. The applicant wrote that he reported the injury or illness to his supervisor, Mr B Stephenson, on 23 November 1994. In cross-examination, however, Mr Proud agreed that he had not told his supervisor. The supervisor had written (T6/39-40) that the first he knew of any problem was 28 November 1994. Mr Proud described the events leading to the injury or illness as repetitive sorting for long periods, reaching the right arm upwards and outwards from the shoulder over the whole period of employment. Mr Proud's solicitors wrote to Australia Post on 31 May 2000 stating that the claim on 9 May 2000 was for a different incident from that covered by the denial of liability in 1995 (T20). The new claim was in respect of the nature and conditions of the applicant's work.
In cross-examination Miss Henderson took Mr Proud to Dr Ostinga's report dated 23 May 1995 (T13). Dr Ostinga took a history of right shoulder pain from three months before (ie February 1995) with "irritable pain in mid-arc" until he was playing tennis one day when he "felt something give". This had caused very severe pain which had "more or less resolved". Mr Proud said the "something gave" comment meant that "I felt uncomfortable in the shoulder as I went to play the stroke". The tennis game was after his shift on 23 November 1994 at about 2.00pm. Miss Henderson commented on the incongruity of Mr Proud still playing tennis at that time when he had told Mr Davison at 12.45 pm (T6/38) that his arm was sore. Mr Davison was told that Mr Proud did not know what he had done to it, that it was fine at the start of the shift. Mr Davison saw Mr Proud wincing from the pain. Mr Davison said Mr Proud had not complained of a sore shoulder before. Mr Proud saw his general practitioner on 24 November 1994 (T7/41).
On 31 October 2000 the respondent rejected this claim on the basis of a report by Dr N W McGill, a rheumatologist (T26). Dr McGill reported on 23 October 2000. He recorded that Mr Proud had ceased all squash playing in November 1998 and he no longer played squash or tennis. On examination Dr McGill found the right shoulder slightly restricted but he found good muscle power. He had access to x-ray and ultrasound results. He diagnosed rotator cuff disease of the right shoulder with extensive tearing of the supraspinatus muscle extending to the infraspinatus. A repair had been done in January 1999 with a good result. There was a very slight restriction to the right shoulder with normal power. There was a possible connection between the rotator cuff changes and Mr Proud's Australia Post employment. However, sporting injuries were more likely to have been the cause, together with age degeneration. He concluded that work duties with Australia Post probably did not play any significant role. He assessed a 5% whole person impairment ("WPI") of the shoulder under table 9.1 of the Guide to the Assessment of the Degree of Permanent Impairment ("the Comcare Guide").
Mr Proud's solicitors sought reconsideration of the decision on 7 November 2000 (T27), largely because of other medical evidence more favourable to Mr Proud. In a reviewable decision dated 24 November 2000 the respondent affirmed the decision of 31 October 2000 (T28). The decision-maker was unimpressed by the report by Dr Ostinga, the treating orthopaedic surgeon, who presented a report that emphasised Mr Proud's mail sorting activities as a cause of his injury but who ignored the sporting activities as a contributing cause, despite noting that the symptoms worsened following sporting activity. Dr Ostinga had not explained why he did not consider Mr Proud's more strenuous sporting activities to be the cause of his condition. Dr P M Furey, an occupational physician, had presented an accurate account of Mr Proud's sporting activities but had concluded, without explanation, that the mail sorting activity was the main factor involved. The decision-maker considered that Dr McGill had explained his views whereas Drs Ostinga and Furey had merely stated their opinions.
The applicant's solicitors sought yet another reconsideration on 13 March 2001 as a result of obtaining comments on Dr McGill's report by Drs Furey and Ostinga (T29). Australia Post reaffirmed the adverse decision in the reviewable decision dated 7 May 2001 (T31). The decision-maker noted that Dr Ostinga had said he was influenced by the fact that only about 5 to 10% of strokes made in squash or tennis are over the shoulder. This was said in the decision to apply equally to above shoulder height mail sorting. Dr Furey had described Mr Proud's work as "repetitive and above shoulder height, with constant movement of the shoulder in 8-10 hour shifts". This led the decision-maker to query what sort of history had been provided to Dr Furey. Mr Proud's work was said not to involve constant and repetitive shoulder height mail sorting.
In oral evidence Mr Proud detailed his work history at Australia Post. He had commenced there in 1964. He sorted mail about 20% of the time for 1 ½ to two years. He stood to sort using a 54 pigeonhole rack ("a 54 way break"). The height was up to two feet above Mr Proud and extended down to waist height. About 50% of the sorting was above chest height. He then had a break from sorting while doing counter work for a few months.
In cross-examination Mr Proud agreed that the sorting frame (the "VSD") shown at page 4 of an Australia Post booklet, "All In a Day's Work" (ex R5), was the sort of frame he had used. Mr Proud said that his was set higher on the wall than that in the photograph. Mr Proud also identified a picture of the removal of bags from a mail bag rack (ex R5/6) and agreed that he had done that work also throughout his career. Miss Henderson in cross-examination took Mr Proud through the booklet and it appeared that he had participated in a range of activities using a variety of equipment in his work.
He then spent four to five years at Wickham Post Office where he was in charge of sorting. He worked 70% of the time sorting and 30% of the time at the counter. The sorting frame was the same as previously.
At some stage the set-up changed so that mail sorters could use a stool. Later they had chairs with full seating and backs. Over the years the sorting racks remained fairly constant. From 1972 Mr Proud engaged exclusively in mail sorting at Newcastle Central Post Office. He did a daily shift of seven hours 21 minutes with a common overtime commitment taking the period to about nine hours. In the final 10 years at Newcastle Mr Proud sorted for only about 80% of the time. Mr Proud ended his postal career at Hamilton where he spent a few years.
Mr Proud described the onset of the shoulder problems. They were first noticed when Mr Proud reported them in November 1994 (T6). There is a slight problem with this in that Mr Proud told Dr Bray that he was "troubled by the onset of some right shoulder soreness in 1991 and he refer[red] to this as being first noticed at work" (ex R2/1). The right shoulder was sore during sorting and there was neck pain also. He told the tribunal he mentioned the problem to Stephen Davison. Mr Proud told the tribunal he accepted the adverse decision without complaint because he had applied for promotion. Presumably he considered that it would reduce his chance of success if he persevered with his claim. He was given about a week of restricted duties. Miss Henderson in cross-examination queried this. Mr Proud said that he was not promoted and he appealed. He failed in that appeal. He could then have sought reconsideration of the denial of compensation liability but he did not. Mr Proud responded that he did not see the two as related in any way. He just did not think of seeking a reconsideration at that time. Miss Henderson put to Mr Proud that it was because he had recovered. Mr Proud said that he could survive so long as he did exercises. Miss Henderson noted that Mr Proud continued on with his squash and tennis.
After that, Mr Proud said that he continued his work but stopped to do shoulder exercises when he had shoulder pain. He had received advice on these exercises from physiotherapists.
In cross-examination Miss Henderson asked Mr Proud about the history he had provided to Dr Furey (T22) who had understood that Mr Proud, when placing mail in the pigeonholes, "threw the mail into each box". This was identified as a misunderstanding as the mail at the intended point of the sorting cycle was thrown into a bag. Dr Furey also had a history of tiredness in both shoulders at the end of a day. Mr Proud could not recall telling this to Dr Furey. He said that he told Dr Furey that had to constantly flick mail above his waist into the sorting frame.
In 1999 Mr Proud was offered redundancy. He said that he took redundancy in part because of his shoulder. He could not do the work properly. He was also tired of shift work. He was asked to stay on for three months but his shoulder surgery intervened. Mr Proud was one of six who became redundant. He said that he had been unable to obtain a job since leaving Australia Post. He had been granted a Centrelink payment, Carer Pension, because he assists his mother.
Miss Henderson in cross-examination opened up Mr Proud's financial history. He saw a financial adviser prior to leaving Australia Post. He was in receipt of a Disability Pension from the Department of Veterans' Affairs ("DVA") at 10% or 20% of the general rate. (By the time of the hearing Mr Proud said he was receiving a 70% general rate Disability Pension.) The possibility of a DVA Service Pension was discussed and Mr Proud applied for such a pension some time between January and April in 1999. He was advised by the Vietnam Veterans' Association. He told DVA he could no longer work. Presumably he was seeking a Service Invalidity Pension, for which a veteran must be 85% permanently incapacitated for work. The claim was rejected.
Earlier Mr Proud had claimed successfully for a Disability Pension from DVA (ex R6). The conditions said to be war-caused were "right foot & knee problems", "eyesight problems" and "hearing loss & ringing in ear". Mr Proud's lifestyle questionnaire contained some responses that appear incorrect as at March 1996. In relation to his mobility he checked a box suggesting that he was dependent on a walking stick or walking frame, or that he was confined to his neighbourhood unless taken out by others, that he could not climb stairs or could do so only with assistance, that he could walk only short distances without rests, and that he had difficulty using public transport. He also checked a box stating that he was unable to take part in any recreation or community activity.
There was a subsequent claim for Disability Pension in respect of post-traumatic stress disorder. It was hoped that he would qualify for a Special Rate Disability Pension.
Miss Henderson put to Mr Proud that late in 1998 he decided to retire and seek maximum DVA benefits. To that end he had seen Dr L Darcy, a psychiatrist, as part of his dealings with DVA to try and obtain a pension for post-traumatic stress disorder. Dr Darcy reported on 26 November 1998. Mr Proud was said to have told Dr Darcy that he spent time alone in his shed drinking beer and that he was giving up work because he was moody. Miss Henderson queried how consistent this was given Mr Proud's concerns about possibly having to give up social tennis (see paragraph 28 below) at one point, and the lack of any time off work for any psychiatric reasons at this time. She also noted that no psychiatric assistance had been sought before Mr Proud decided to try for an increased DVA pension. Even then Dr Darcy was seen by Mr Proud on referral by DVA.
Mr Proud did not accept this characterisation of his actions. He said that he did use his shed for woodworking which he did in a solitary fashion. He said also that he sought the redundancy because he had been moody at work.
Mr Young in re-examination took Mr Proud to T5, dating from 1994, in which Commonwealth Medical Officer, Dr C J Way, diagnosed an adjustment reaction following his father's death and serious illnesses of his mother and mother-in-law. He had been through a period of teariness and withdrawal from people. He had lost weight. His own doctor had diagnosed anxiety neurosis. Dr Way thought, however, that Mr Proud was fit to resume normal duties on 19 June 1994, two days after his report. Mr Proud also told Mr Young that he could play squash despite his post-traumatic stress disorder symptoms because he felt safe on the squash court. Sometimes he did not go to squash but he usually did because it was a way of "hitting out".
Miss Henderson queried why Mr Proud did not lodge a compensation claim in respect of the nature and conditions of his work at Australia Post until 2000. Mr Proud said he thought his problems were work-related but he did not know how to proceed. He denied that had waited to see what he could get from DVA before deciding to lodge a compensation claim.
Mr Proud explained ex A5, a list of claims he has made to his private health insurer. He had marked the items relating to his right shoulder.
Mr Proud described his sporting history. He started with tennis at age 10. He stopped at age 20 but resumed some 20 years later with "a couple of hits now and then". He was in a veterans' competition from 1995 to 1997 but stopped because of shoulder trouble.
He played squash consistently and competitively from age 22 until 48. He played on at squash after giving up tennis. He was still playing squash at the time of the hearing but on a very reduced basis. He has won squash competitions. He ceased competition squash in early 1999. He lacked power because of the shoulder problems. Since then he has played once a week against non-competitive players. He played in the Master's Games, a veterans' competition, in Newcastle in October 2001. He played in the lowest division. He is now mindful of his shoulder and avoids overhead shots.

Miss Henderson in cross-examination queried aspects of this. He had told Dr Hollo in late 1994 (T10) that he played squash once a week and tennis at competition level weekly. Mr Proud said this was wrong and that he had a tennis hit only every now and then. Miss Henderson suggested that Mr Proud had recovered from the November 1994 symptoms. He had not seen his general practitioner, Dr Hashmi, between 1995 and 1997 for shoulder problems. Mr Proud explained this by saying that he used anti-inflammatories. He had had just one prescription for these from Dr Hashmi and this number of tablets carried him through the two years. He did see Dr Hashmi during those years but for other reasons.
Miss Henderson put to Mr Proud that he sustained squash injuries in 1997. Mr Proud said that he had quite a few squash injuries instancing calf muscle problems. As regards his shoulder, in 1998 he realised his shoulder was no good and that he could not play. Miss Henderson referred Mr Proud to a report by Ms Carolyn Fay, a physiotherapist (ex R8), dated 9 December 1998 in which she said that Mr Proud presented in October 1998 after injuring his shoulder at squash the day before. She wrote that the injury to Mr Proud's shoulder "this time" involved a minor collision with the other player on the court but resulted in "fairly dramatic symptoms and signs". Mr Proud denied that there had been a collision, describing it as more a "brushing", although towards the end of cross-examination he agreed that he could have said he collided. He was informed that Dr Ostinga had recorded that Mr Proud told him he had "struck or collided shoulders with his opponent" (ex R9/1). Miss Henderson quoted from ex R8 that the collision or brushing produced extreme symptoms. He was unable to flex or abduct his arm at all. She noted that Mr Proud told Ms Fay that he was dubious about an operation because it could affect his participation in tennis and squash. This was when, as Mr Proud had said, he was barely playing tennis. Mr Proud explained that his concern may have been with his continued ability to play social tennis.
Miss Henderson referred to Mr Proud's other sports. He agreed that he had been a surfboard rider from about age 19 or 20. He had last ridden a surfboard in about February 2002. He was a swimmer also, but this was in association with surfing. He conveys the surfboard to the beach loading it inside his station wagon.
Mr Proud said that he cannot lift anything over his head with his right arm. He cannot extend his right arm with anything heavy in his hand. He washes his car with his left arm and hand. If he tries pressure and release with the right arm he has a pain in the top of the arm. Restrictions are worst in the morning before the shoulder frees up. He reached his current level of usage 18 months after the surgery.
Mr T Barley, an Australia Post employee who works as a postal delivery officer/night sorter, was called to give evidence by Mr Proud. He worked with Mr Proud from May 1990. They worked in the same room at Newcastle Central Post Office performing the same shifts and doing similar duties. He said that the percentage of time spent sorting mail into pigeonholes was 80-90%. He also used a 54 way break and sorted from a seated position. However, for variety, a mail sorter could swap with a person sorting large mail from a standing position. The arrangements were much the same at the Hamilton Post Office. When seated the top of the 54 break was about level with the forehead and about 10" was above shoulder height. About ¼ of the break was above shoulder height. Sorters attempted to locate the most used pigeonholes directly in front of them but there was still a lot of top level sorting each night.
Mr Barley could not recall when Mr Proud registered complaints about pain. He could not recall a time of day or a location. He could recall complaint of a sore shoulder one night. The pain appeared to grow worse as the night wore on. He could recall Mr Proud doing exercises at work.
Dr D Bray, an orthopaedic surgeon, gave oral evidence. He had provided a report dated 9 August 2001 (ex R2). In that report he concentrated to an extent on the mechanical contributions to Mr Proud's shoulder problems. Mr Proud told him that a lot of his Australia Post work involved use of his elbow above shoulder level. However, Australia Post had provided "some notes" indicating that "probably less than 10% of his work-time activities involved this". He saw this as important because "sustained use of the elbow above shoulder level has a tendency to lead to symptoms of rotator cuff wearing and fraying". However, Dr Bray did not regard use of the elbow above shoulder level at 10% of the time as sustained use. Further, he said that it appeared that most of the work was of a fairly light nature, at least as it applied to use of the elbow above shoulder level. Dr Bray diagnosed damage to the rotator cuff in the right shoulder leading to fraying and eventual tearing of the supraspinatus tendon which required operative repair. Dr Bray said that the onset, which Mr Proud told him commenced in 1991, was gradual. This made it very difficult to be certain that Mr Proud's work played any major part in his shoulder symptoms. He said, "Whereas I have no doubt of the ability of sustained work with the elbow at or above shoulder level or forceful manoeuvres in this area to precipitate symptoms of wearing, tearing and fraying of a rotator cuff, it does not appear that this man's work involved sustained use of the elbow above shoulder level". He noted that it appeared from initial reports that Mr Proud was treated as having acute onset of symptoms at sport with later reports referring to the work-related component of his problems.
Dr Bray agreed with the comments of Dr McGill (T25) that sport was much more likely to be a factor than his work and that, even if he had not worked as a night mail sorter, he probably would have developed symptoms in the shoulder. He went on to say that it was probable that work played no significant part in the development of the condition. "Ageing changes, wear and tear and the shape and nature of [Mr Proud's] shoulder joint and more particularly the inferior surface of his acromion and his involvement in sports such as tennis and squash, would probably be the cause of his condition and more especially his ongoing problem". Dr Bray saw Mr Proud as fit for any work not involving use of the elbow above shoulder level for any sustained time. He assessed a WPI of 5% under table 9.1 of the Comcare Guide.
In oral evidence Miss Henderson alerted Dr Bray to some new material that emerged earlier in the hearing. She did this later for Dr McGill also. This was:

After 1994 Mr Proud used anti-inflammatories at a rate of about one every four to five weeks.
Dr Ostinga's history that in 1998 Mr Proud collided with or brushed against another player during a squash match with lifting difficulties emerging within a couple of days.
Mr Proud played squash up to early in 1999 for up to twice a week and he played social tennis once a month between 1995 and 1997.
Some 20% of the work in Australia Post at the 54 way break was above shoulder level.

Dr Bray said that none of these additions to the global picture would cause him to change the opinions expressed in ex R2. He said that a cause of rotator cuff problems is sustained effort at or above shoulder level, such as the painting of a cornice. Here, Mr Proud's above shoulder level effort was intermittent. Repetition of an intermittent above shoulder action does not matter. Normal wear and tear, and advancing age, can be a cause of problems such as Mr Proud's.
In cross-examination Mr Young raised such sports identities as Shane Warne and Greg Norman who have, apparently, had rotator cuff problems. Mr Young characterised their above shoulder level activities as intermittent but repetitive. Dr Bray responded that Shane Warne bowls using violent force and a spin is added to the equation. He was asked also about the repetitive act of "flicking" letters into the pigeonholes. Dr Bray thought that at the most such action would affect the hand and wrist, not the shoulder.
Dr McGill gave oral evidence. His original report has already been discussed above in paragraph 6. He reported again on 5 November 2001 (ex R4) commenting on Dr Ostinga's report of 15 October 2001 (ex A2). Dr Ostinga had commented on Dr Bray's report. The gist of Dr Ostinga's comments was that he disagreed with Dr Bray that it was only activity above shoulder level that came into contention. He said that abduction or early flexion of the shoulder is initiated by the supraspinatus tendon and that this produces an upward movement of the humerus against the acromiom. This movement is countered by muscles that hold the humerus down. This movement over a period of time with the weight of the arm in an extended position, such as when putting mail into pigeonholes, is a significant contributor. He noted that Mr Proud had done such work for 25 years. He was "personally convinced that this type of work could well injure the rotator cuff, particularly in a predisposed person, and cause the ultimate extensive tearing that was seen at surgery".
Dr McGill's view was that "[t]he statement by Dr Ostinga that abduction of the shoulder is initiated by the supraspinatus is true but I do not think this normal use of the muscle, even when repeated numerous times over many years, causes damage". He agreed with Dr Bray that, to have a significant effect on rotator cuff wearing and fraying, at or above shoulder height activities are likely to be required. He thought Dr Bray's comments on the effect on the rotator cuff of intermittent and repeated activities over many years were balanced and fair. He reiterated that, given Mr Proud's sporting activities, even if he had not worked at mail sorting, the current state of his shoulder would have been the same.
Miss Henderson put to Dr McGill the new material in paragraph 35 above. He did not change his opinion. Mr Young queried the effect of rapid repetitive actions at or below shoulder level. He suggested that the mail sorting action was speedy. Dr McGill agreed that this was so and added that he had been to Australia Post premises so he had a good understanding of the work performed. However, he did not see the rapidity of sorting action as being as fast as that in tennis and squash. He did not agree with Mr Young that the wrist flick action would affect the shoulder. It would affect only the wrist. Dr McGill also insisted that the rate of abduction movements in squash or tennis would far outweigh that in mail sorting over a similar period.
In response to questions from tribunal member, Dr Campbell, Dr McGill said that a supraspinatus tear never heals. The secondary inflammation resolves. Such a tear can be consistent with a person's capacity to play sport. It is not always symptomatic in the longer term. He said that repetitive ongoing work could aggravate a supraspinatus tear but he did not think that Mr Proud's work activities played any significant role.
In final submissions Mr Young suggested that there was no evidence of Mr Proud's sports contributing in any way to his shoulder problems until 1998. In 1994 there was nothing other than work suggested as a causal factor. He referred to Dr McGill's evidence that a supraspinatus tear does not heal as a reason for suggesting that Mr Proud had a disposition to injury after 1994 that was related to tearing caused by his work. He relied heavily on Dr Ostinga's opinions at T18, T29, ex A2 and ex A3. Dr Ostinga saw the supraspinatus tendon as weakened by years of mail sorting. He saw the mail sorting as far more likely to have caused the problem than two sporting injuries. He suggested that in tennis and squash only 5-10% of strokes are at above shoulder level. He opted for a 10% WPI in accordance with table 9.1 of the Comcare Guide.
Mr Proud argued that the respondent should have required Drs Ostinga and Furey for cross-examination, in accordance with the rule in Browne v Dunn (1893) 6 R 67, if it was proposed that their views not be accepted.
Dr Furey, an occupational physician, reported on 28 July 2000 (T22). He regarded the main factor in Mr Proud's right shoulder tear of the supraspinatus tendon with involvement of the infraspinatus tendon as being work procedures. He saw the work as involving constant flicking of the right arm above the waist with elevation of the shoulder. He recognised that the squash playing could be a factor but, largely relying on Dr Ostinga, he preferred the assessment that the mail sorting procedures were more likely to have caused the problems. In a later report (8 March 2001, T29/112) Dr Furey concedes more in relation to the squash playing and seems to adopt an extreme view of the physical movements involved in mail sorting. He wrote that it is not uncommon in squash players for shoulder tendons to be frayed over long years of playing and he said, "I think that obviously we have a combination of factors acting in Mr Proud's case". He described the work as "repetitive and above shoulder height with constant movement of the shoulder in 8-10 hour shifts, compared to the game of squash performed over a period of one hour several times a week". He said that if the squash precipitated the problems, then the mail sorting caused further damage and constant aggravation. He apportioned a 50% contribution to the squash and the same to the mail sorting. He assessed (ex A4) a WPI of 10%.
Mr Young considered that all photographs in ex R5 placed the top line of boxes on a 54 way break well above a sorter's head.
Mr Young submitted that the collision/brushing incident in 1998 did not cause any significant harm. The effects ceased after three months according to Dr Ostinga (T13)
Miss Henderson saw matters somewhat differently. She commenced with the paper trail regarding the alleged work injury. Mr Proud's supervisor, Mr Stephenson, made a statement on 29 November 1994 (T6/39) that the first he knew that Mr Proud was claiming any work-relationship to his shoulder problem in November 1994 was when he saw an incident report form dated 23 November 1994 on about 28 November 1994. Prior to that he had understood Mr Proud to be taking sick leave starting from 24 November 1994. The claim form that followed on 6 December 1994 (T6/35) referred to no specific incident. This was true also in respect of Mr Davison's statement (T6/38) and Dr Hashmi's medical certificate dated 23 November 1994 (not a workers' compensation certificate) (T7/41) giving Mr Proud a week off work, followed by a second week (T7/42).
The next report was by general practitioner, Dr D J Harvey (T18/78) dated 22 April 1999. He had seen Mr Proud on 8 May 1995 in relation to right shoulder pain, which he had experienced for three months, ie since February 1995. Miss Henderson emphasised that this was a different pain from that reported in November 1994. Dr Harvey sent Mr Proud to Dr Ostinga.
Dr Ostinga recorded that Mr Proud had "felt something give" when playing tennis (23 May 1995, T13). This hints at a tear then occurring. Dr Ostinga then noted on 4 August 1995 (T14) that Mr Proud had a small tear high up near the musculo tendinous belly of his supraspinatus and that he had a full range of movement of the shoulder. He was back playing tennis. Dr Ostinga told him to come back if he had any fresh problems. As Miss Henderson noted, Mr Proud did not return until January 1999 (T18/75).
Meanwhile, the next reference to a shoulder problem occurred in Mr Proud's sick leave records (T32). Dr R J Burke, an occupational physician, reported on 12 May 1997 (T17) that he saw Mr Proud at Australia Post's request on 9 May 1997. Mr Proud "reported that he had sustained an injury to his right shoulder some three weeks ago. At the time he was playing squash and attempted a volley shot which was high on the left hand side of his body, above shoulder height".
In late 1998 Mr Proud was on sick leave because of his shoulder. Ms Fay's report of 11 November 1998 (ex R7). As discussed in paragraph 28 above, this was a squash injury. Dr Ostinga on 12 January 1999 (T18/75) saw squash as the cause.
From this Miss Henderson summarised that Mr Proud had a sore shoulder in November 1994. He had two weeks off work. He had fresh shoulder problems from February 1995 and saw a doctor in May 1995 who referred him to Dr Ostinga. He had an ultrasound in July 1995, long after the alleged work-related injury in November 1994. It is not at all clear that there was a rotator cuff tear at work on 23 November 1994. There were reports of soreness which resolved and an ultrasound taken much later first determined that there was a tear.
Miss Henderson submitted that it was doubtful that Mr Proud's work materially contributed to his shoulder condition. She summarised. He had in fact a range of duties. He did sorting some 80-90% of the time. This was not entirely standard letter sorting. There was some oversize mail sorting. There was some sorting into bags on racks. He could work standing when at Newcastle. The height of the pigeonholes was such that either ½ or ¼ of the full range was above shoulder height. Drs McGill and Bray did not regard sorting into the higher level holes as stressing the shoulder. He had to gather trays of letters (ex R5/4) every 15 minutes or so. He had to clear out the pigeonholes and put the mail into letter trays, or band and bag the mail. This means that in no way can some 40% of Mr Proud's time have been spent with his arm raised above shoulder height, as Mr Young suggested in his final submissions. In truth, about 20% of Mr Proud's time was spent in such a position and that occurred intermittently.
Miss Henderson said that at best, in some support for Mr Proud, Drs McGill and Bray had allowed it as possible that Mr Proud's work made a contribution to his shoulder condition. They did not regard this as probable. Dr Furey's views were affected, said Miss Henderson, by a defective history. He did not understand Mr Proud's system of work (T22/84 and 88 show this). He referred to both shoulders being tired and that there could be tears on both shoulders (T22/86). He recorded that Mr Proud's shoulder never got any better after the onset of symptoms. This was not correct, as paragraphs 48-49 above demonstrated. Mr Proud took only two weeks off in November 1994 and returned to full duties after a week back at work. Likewise, Dr Ostinga was incorrect in his characterisation of Mr Proud's work as "reaching upwards and outwards from the shoulder, and more or less spending the whole of the shift doing these repeated movements: (T18/76). Dr McGill, in these respects, had a far more accurate understanding of Australia Post work, said Miss Henderson.
Miss Henderson summarised some more minor matters:

Mr Barley recalled only one instance of Mr Proud complaining about his shoulder.
Mr Proud saw his general practitioner often but did not complain often to the doctor about his shoulder.
One box of anti-inflammatories lasted Mr Proud three years. He dosed himself sparingly. Miss Henderson suggested that there was no reason to associate any dosing with work. It was far more likely to be prompted by tennis or squash.
Mr Proud was not stoic about sick leave. He took it as he needed it. Miss Henderson took this to mean that he would have complained when he had shoulder problems.
Mr Proud's credibility was questionable given the material at paragraphs 17-21 above.

Miss Henderson submitted that the only claim properly before the tribunal was Mr Proud's permanent impairment claim. The claim at T23 was relevantly identical to that in T6/35. Both related to nature and conditions and alleged no specific incident. There has been no reviewable decision in relation to the refusal of compensation. The reviewable decision relates only to permanent impairment.
FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS

The tribunal's jurisdiction in this matter must first be clarified. Clearly the tribunal has no role in relation to the decision taken on 17 March 1995 to deny liability for the shoulder problem that had its onset on 23 November 1994 (T11). There has never been a request for reconsideration of that decision, nor has Australia Post carried out a reconsideration on its own motion. There is thus no reviewable decision that the tribunal can entertain.
The next issue becomes the status of the nature and conditions claim dated 21 August 2000 (T23). Miss Henderson saw this as covering the same ground as the claim made on 6 December 1994 (T6/35), which was rejected on 17 March 1995. The tribunal finds that the claims were not identical. The earlier claim related to an injury, "inflamed tendon – right shoulder", with a date of onset of 23 November 1994 and it was said to have come on after two hours of sorting letters. The later claim was for "rotator cuff syndrome of right shoulder". The date of onset was October 1993. The putative cause was repetitive mail sorting for long periods. It explicitly referred to the whole period of employment. The tribunal finds that the second claim, ie that in T23, was a valid claim.
However, given that the symptoms were noticed in October 1993 and no claim or incident report was lodged until 2000 there may be difficulties in relation to s 53 of the Act:
Notice of injury or loss of, or damage to, property
53. (1) This Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority:
(a) as soon as practicable after the employee becomes aware of the injury; or
…
(3) Where:
(a) a notice purporting to be a notice referred to in this section has been given to the relevant authority;
(b) the notice, as regards the time of giving the notice or otherwise, failed to comply with the requirements of this section; and
(c) the relevant authority would not, by reason of the failure, be prejudiced if the notice were treated as a sufficient notice, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause;
the notice shall be taken to have been given under this section.
Prima facie, then, the Act does not apply to the alleged injury suffered by Mr Proud. He did not give Australia Post notice in writing of the injury as soon as practicable after he became aware of the injury. However, that deficiency can be cured under s 53(3) if:

Australia Post is not prejudiced if the notice, although late, is treated as sufficient notice; or
The failure resulted from the death of a person; or
The failure resulted from absence from Australia of a person; or
The failure resulted from ignorance; or
The failure resulted from a mistake; or
The failure resulted from any other reasonable cause.

Mr Young submitted that the failure in this case resulted from Mr Proud's ignorance as to whether he had a nature and conditions claim. It was only in 2000 that Mr Proud saw a solicitor. It seems that this was so. The first action by the solicitors in the T documents occurred on 9 May 2000 (T18). The tribunal is prepared to find that the notice, in the form of the claim form dated 21 August 2000, was sufficient notice in accordance with s 53 of the Act.
It is necessary to ascertain whether the reviewable decision addressed the relevant claim. Miss Henderson said that it addressed the other claim, that for permanent impairment, lodged on 9 May 2000 (T18). The tribunal does not accept that characterisation. This is for several reasons. First, the solicitor's letter dated 9 May 2000 (T18) begins with a reference to a claim for a 20% permanent impairment but concludes by referring to a claim for "disabilities of the right shoulder based on the nature and conditions of work with Australia Post". A decision on 24 May 2000 addressed only the matter of permanent impairment (T19). On 21 August 2000 a claim, for the first time in proper form, was lodged in respect of nature and conditions (T23). This was rejected on 31 October 2000 (T26). In no way did that decision refer to permanent impairment. It referred to liability under s 14 of the Act. This decision was reconsidered and the reviewable decisions of 24 November 2000 (T28) and 7 May 2001 (T31) were in no way confined to consideration of only the permanent impairment position.
The tribunal therefore finds that it has jurisdiction to consider Mr Proud's entitlement to compensation based on his nature and conditions claim.
However, the tribunal finds on the balance of probabilities the Mr Proud has not suffered a compensable injury in the form of rotator cuff syndrome of the right shoulder or, as Dr McGill described it, rotator cuff disease of the right shoulder with tearing of the supraspinatus muscle. The tribunal has adopted the analysis put forward in her final submissions by Miss Henderson. The tribunal will explain this presently but it is first necessary to explain the statutory context within which we must operate. We must find an injury in accordance with s 4(1) of the Act. This involves several steps. The relevant provisions in the Act are:
Interpretation
4. (1) In this Act, unless the contrary intention appears:
…
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;
…
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment;
There are several ways to find an injury under the Act. One is to identify an injury other than a disease arising out of or in the course of the employee's employment. Another is to find an ailment which constitutes a disease in that it, or its aggravation, was contributed to in a material degree by the employee's employment. Mr Young presented the case here as a disease case. There was an ailment in the form of rotator cuff disease of the right shoulder to which Mr Proud's employment contributed. Miss Henderson did not quarrel with this as a conceptual way forward, although she did not accept Mr Young's analysis.
The tribunal agreed with Miss Henderson's analysis (paragraphs 47-55 above) and makes certain findings in the course of revisiting that analysis:
(a)Mr Proud reported right shoulder pain on 23 November 1994 (T6/31). He said that this stemmed from work duties. However, it is noted that he told Dr Hollo (T10) that the problem had its onset over two or three days prior to 23 November 1994 and that he played squash two days prior to the onset of his symptoms. He was unable to indicate any specific event that occurred at work to set off the symptoms on 23 November 1994. The tribunal finds on balance that it is more likely that Mr Proud's sports activities precipitated the problem than his work activity. The tribunal was impressed by Dr McGill's and Dr Bray's opinions to the effect that it was more likely that Mr Proud's shoulder condition was caused by his sporting activities than his work. We will say more on this below, but the history before the tribunal showed that Mr Proud suffered a number of shoulder incidents that were directly related to only his sports activities. On the other hand there were no injuries that were clearly related only to possible work causes. Wherever work was a possible cause Mr Proud was also engaging in significant and vigorous sports.
(b)It appears that Mr Proud recovered from this problem. When he saw Dr Harvey on 8 May 1999 he told Dr Harvey that he had had a shoulder pain for only three months, ie since February 1995. Further, he told Dr Ostinga that the pain related back to when was playing tennis and felt something give. The tribunal finds that in about February 1995 Mr Proud suffered a tennis injury to his shoulder. The tribunal further finds that, based on Dr Ostinga's report of 23 May 1995 (T13), this injury resolved by the end of May 1995 or soon after.
(c)The tribunal finds that Mr Proud suffered no further significant shoulder symptoms until approximately 12 May 1997 when he saw Dr Burke about an injury to the right shoulder wholly caused by a squash incident. As at 12 May 1997 that injury was "settling". Mr Proud had returned to normal work duties. It is a fair inference that the condition did settle because Mr Proud did not return any time soon to Dr Ostinga, as Dr Ostinga had encouraged him to do on 4 August 1995 (T14), whereas he did return to Dr Ostinga late in 1998.
(d)The tribunal finds that Mr Proud suffered a squash-related injury late in 1998 when he collided with, or brushed against, an opponent during a squash game. Ms Fay's reports show that the immediate consequences of this injury were apparently serious in that Mr Proud could scarcely raise his right arm. Dr Ostinga saw this injury as squash-related (T18/75).
(e)The tribunal finds that Dr Ostinga carried out surgery on Mr Proud's shoulder on 28 January 1999 (T18/75). According to Dr Ostinga the results were very encouraging as at March 2000.
The tribunal's view is that the history of shoulder injuries and symptoms points quite clearly to repeated sports injuries as at least the substantial cause of Mr Proud's problems. However, Drs Ostinga and Furey nevertheless regarded the mail sorting as contributing, even as the major contributing factor, to Mr Proud's condition. The reasons for their views have been set out above (see paragraphs 38 and 44, above), as has the reasoning of Drs McGill and Bray. The tribunal has found that the views of Drs McGill and Bray are more persuasive.
For reasons already given, the tribunal was not satisfied that Drs Ostinga and Furey had an accurate appreciation of the nature of the work done by Mr Proud for Australia Post. On the other hand, Dr McGill, who agreed with Dr Bray, has a thorough appreciation of the work of a mail sorter as he has visited Australia Post mail sorting premises and frequently addresses Australia Post work practices in his reports. The tribunal noted the explanations tendered by Drs Ostinga and Furey for their view that Mr Proud's work made a significant, or the major, contribution to his shoulder problems. This was largely a combination of a comparison of the time spent playing sport as compared to the time spent at work and an explanation of the mechanics of the muscular movements involved in raising an arm above waist height. In the absence of other evidence this material may have been convincing. However, the lengthy history of fairly traumatic sporting incidents producing immediate after-effects militates against this other material offering a credible explanation. It is notable that some of Mr Proud's sporting injuries did not follow tennis or squash shots taken above the shoulder. The views of the doctors about the percentage of squash and tennis shots involving over shoulder height action were therefore not all that decisive. These are vigorous sports that carry inherent dangers, especially when played hard as Mr Proud apparently did over years.
On the balance of probabilities the tribunal is not satisfied that Mr Proud suffered an injury arising out of or in the course of his employment by Australia Post such that the claim lodged on 21 August 2000 should have been granted. Similarly the tribunal is not, on the balance of probabilities, satisfied that Mr Proud suffers now, or suffered as at 21 August 2000, from a disease to which his employment made a material contribution.
CONCLUSION
These findings mean that Mr Proud's claim based on the nature and conditions of his work at Australia Post was correctly rejected. This also means that Mr Proud qualifies for no compensation payments in respect of his employment by Australia Post.
DECISION
The tribunal affirms the decision under review and notes that Mr Proud is entitled to no costs in association with this application.
I certify that the 71 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member and Dr J D Campbell, Member
Signed:         .....................................................................................
  Associate
Dates of hearing  4 - 5 April 2002
Date of decision  4 October 2002
Counsel for the applicant         Mr Justin Young
Solicitor for the applicant         Reid & Reid Solicitors
Counsel for the respondent     Miss Rhonda Henderson
Solicitor for the respondent     Forners