Sambastian and Australian Postal Corporation (Compensation)
[2017] AATA 448
•7 April 2017
Sambastian and Australian Postal Corporation (Compensation) [2017] AATA 448 (7 April 2017)
Division
GENERAL DIVISION
File Numbers 2013/2474
2013/2475
2013/2476
2013/3133
2013/5810
Re
Armand Sambastian
APPLICANT
And
Australian Postal Corporation
RESPONDENT
DECISION
Tribunal
Deputy President K Bean
Date 7 April 2017 Place Adelaide
1.In application 2013/2474, the decision under review is set aside and in substitution for that decision, it is decided that from 7 to 28 March 2013, Mr Sambastian was entitled to incapacity payments pursuant to s 19 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act), calculated on the basis that he had no ability to earn in suitable employment.
2.In application 2013/2475, the decision under review is set aside and in substitution for that decision, it is decided that from 17 September 2012 to 7 March 2013, Mr Sambastian was entitled to incapacity payments pursuant to s 19 of the SRC Act, calculated on the basis that he had no ability to earn in suitable employment.
3.In applications 2013/2474 and 2013/2475, the Tribunal also:
(a) Reserves liberty to apply within 14 days in relation to the costs of the proceedings; and
(b) Orders that in the absence of any such application, the respondent is to pay the costs of the proceedings incurred by Mr Sambastian pursuant to s 67(8) of the SRC Act.
4.In applications 2013/2476, 2013/3133 and 2013/5810, the decisions under review are affirmed.
.......... [Sgd] ...........................
Deputy President K Bean
CATCHWORDS
COMPENSATION – Left shoulder and right elbow injuries – Whether applicant entitled to incapacity payments – Whether applicant received offer of suitable employment – Whether duties resulted in aggravation of pre‑existing, non-compensable condition – Whether duties which aggravated a pre-existing condition could be considered suitable – Whether rehabilitation program suitable – Whether reasonable excuse for failing to undertake rehabilitation program – Whether ongoing liability for right elbow condition.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988, ss 16, 19, 37
CASES
Sambastian and Australian Postal Corporation [2012] AATA 822
Australian Postal Corporation v Forgie (2003) 130 FCR 279
Australian Postal Corporation v Sinnaiah (2013) 213 FCR 449
Australian Postal Corporation v Pascoe (2004) 38 AAR 314Australian Postal Corporation v Nunez (2014) 143 ALD 357
REASONS FOR DECISION
Deputy President K Bean
7 April 2017
In August 2001, the applicant, Mr Sambastian, was involved in a motor scooter accident whilst he was delivering mail in the course of his duties with Australia Post (the respondent). As a result, he sustained a left shoulder injury for which compensation liability was ultimately accepted by the respondent.[1] Some months later, in March 2002, Mr Sambastian sustained a right elbow injury when the front wheel of his motor scooter got caught between a footpath and a concrete kerb, causing him to lose control and veer into a brick wall. Liability was ultimately accepted for that injury in 2010.[2]
[1] Exhibit 1, T11/27.
[2] Exhibit 2, T16/27.
There are five applications for review before the Tribunal. Before proceeding to consider the relevant issues, I will first set out the background to those applications.
BACKGROUND
Application 2013/2474
On 28 March 2013, the respondent denied liability to pay compensation to Mr Sambastian pursuant to s 19 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) in respect of his accepted left shoulder and right elbow injuries for the period from 7 to 28 March 2013.
Application 2013/2475
On 7 March 2013, the respondent denied liability to pay compensation pursuant to s 19 of the SRC Act in respect of Mr Sambastian’s accepted left shoulder and right elbow injuries for the period from 13 September 2012 to 7 March 2013.[3]
[3] As Mr Sambastian attended work on 13 and 14 September 2012, he presumably received his ordinary pay for those days.
Essentially, the respondent’s position was that Mr Sambastian was fit to undertake the modified duties which had been offered to him during those periods. It is sufficient to note at this point that the suitability of those duties (which were part of a rehabilitation program determined in April 2007) was considered by the Tribunal (constituted by Deputy President Jarvis and Professor Reilly AO, Member) in 2012.[4] That Tribunal relevantly found that “the rehabilitation program would not exceed Mr Sambastian’s ability to undertake the duties involved in it, having regard to the condition of his left shoulder and right elbow”.[5]
[4] Sambastian and Australian Postal Corporation [2012] AATA 822.
[5] Sambastian [2012] AATA 822, at [34].
Application 2013/2476
On 28 March 2013, the respondent determined, pursuant to s 37(1) of the SRC Act, that Mr Sambastian was to undertake a rehabilitation program, commencing on 2 April 2013. The program was determined in accordance with a medical certificate from Mr Sambastian’s then General Practitioner, Dr Bowler.[6]
[6] Exhibit 1, T42/104.
The three determinations described above were affirmed by the respondent in separate reconsideration determinations dated 16 April 2013.[7] On 27 May 2013, Mr Sambastian sought review of those decisions by this Tribunal.
[7] Exhibit 1, T43/105 and T55/134, T40/102 and T56/137, and T44/106 and T57/139 respectively.
Application 2013/3133
On 16 April 2013, the respondent also suspended Mr Sambastian’s entitlement to compensation for his left shoulder and right elbow injuries pursuant to s 37(7) of the SRC Act, with effect from that date. The basis for that determination was that Mr Sambastian had failed to undertake the rehabilitation program dated 28 March 2013, as he did not attend work on 2 April 2013 when the program was due to commence.
That determination was affirmed upon reconsideration on 27 June 2013. The reconsideration delegate was satisfied that Mr Sambastian had not provided a reasonable excuse for failing to undertake the program, and determined that his compensation entitlements would accordingly continue to be suspended.[8] On 1 July 2013, Mr Sambastian lodged an application for review of that decision by this Tribunal.
[8] Exhibit 1, T54/131 and T65/160.
Application 2013/5810
On 28 October 2013, the respondent determined that as of that date, Mr Sambastian had no present entitlement to compensation pursuant to ss 16 and 19 of the SRC Act in respect of his accepted right elbow injury. That determination was affirmed by a reconsideration delegate on 8 November 2013.[9] Mr Sambastian applied for review of that decision by this Tribunal on 13 November 2013.
[9] Exhibit 2, T102/202 and T107/207.
PROCEDURAL HISTORY
The original hearing in this matter took place over a number of days in December 2015. Following the hearing, written submissions were provided by the respondent on 2 February 2016 and it subsequently became necessary to reconvene the hearing on 18 February 2016 for oral submissions from the parties. Mr Sambastian also provided written submissions on 16 January 2016 and 15 February 2016.
The Tribunal also wrote to the parties on 30 August 2016 inviting further submissions with respect to a number of discrete issues. Submissions were provided by the respondent on 5 October 2016 and the applicant on 26 October 2016.
As the respondent objected to certain aspects of the applicant’s submissions, I subsequently made rulings with respect to those objections, and the parties were provided with those rulings on 23 December 2016. Aside from the matters excluded as a result of those rulings, I have of course, taken into account all of the submissions made by both parties.
STATUTORY FRAMEWORK
Section 16 of the SRC Act relevantly provides:
(1)Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
Section 19 applies to an employee who is incapacitated for work as a result of an injury, and sets out a formula for the calculation of the amount of compensation payable under that section as follows:
(2)Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:
NWE - AE
where:
AE is the greater of the following amounts:
(a) the amount per week (if any) that the employee is able to earn in suitable employment;
(b) the amount per week (if any) that the employee earns from any employment (including self‑employment) that is undertaken by the employee during that week.
NWE is the amount of the employee’s normal weekly earnings.
Subsection 19(4) provides:
(4)In determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to:
(a) where the employee is in employment (including self‑employment)—the amount per week that the employee is earning in that employment;
(b) where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer—the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(c) where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or to continue to engage, in that employment—the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(d) where, after becoming incapacitated for work, the employee received an offer of suitable employment on condition that the employee completed a reasonable rehabilitation or vocational retraining program and the employee failed to fulfil that condition—the amount that the employee would be earning in that employment if he or she were engaged in that employment;
(e) where, after becoming incapacitated for work, the employee has failed to seek suitable employment—the amount per week that, having regard to the state of the labour‑market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment;
(f) where paragraph (b), (c), (d) or (e) applies to the employee—whether the employee’s failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete, a rehabilitation or vocational retraining program or to seek employment, as the case may be, was, in Comcare’s opinion, reasonable in all the circumstances; and
(g) any other matter that Comcare considers relevant.
Section 37 of the SRC Act also relevantly provides:
(1)A rehabilitation authority may make a determination that an employee who has suffered an injury resulting in an incapacity for work or an impairment should undertake a rehabilitation program.
(2)If a rehabilitation authority makes a determination under subsection (1), the authority may:
(a)provide a rehabilitation program for the employee itself; or
(b)make arrangements with an approved program provider for that provider to provide a rehabilitation program for the employee.
...
(7)Where an employee refuses or fails, without reasonable excuse, to undertake a rehabilitation program provided for the employee under this section, the employee’s rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation, are suspended until the employee begins to undertake the program.[10]
(7A)However, subsection (7) does not operate to suspend the employee’s right to compensation for the cost of medical treatment that is payable under section 16.
(8)Where an employee’s right to compensation is suspended under subsection (7), compensation is not payable in respect of the period of the suspension.
[10] As to the operation of this provision, see Australian Postal Corporation v Forgie (2003) 130 FCR 279 and Australian Postal Corporation v Sinnaiah (2013) 213 FCR 449.
ISSUES
Accordingly, the issues for my determination are as follows:
(a)Was Mr Sambastian entitled to incapacity payments pursuant to s 19 of the SRC Act from 13 September 2012 to 28 March 2103? In particular, noting that the respondent accepts that Mr Sambastian had “restrictions flowing from [his] two ‘injuries’”[11] during that period, had Mr Sambastian received an offer of suitable employment from the respondent?;
(b)Was the rehabilitation program of 28 March 2013 suitable?;
(c)Did Mr Sambastian have a “reasonable excuse” for failing to undertake the rehabilitation program of 28 March 2013, which was due to commence on 2 April 2013?; and
(d)From 28 October 2013, has Mr Sambastian:
(i)obtained medical treatment “in relation” to his right elbow injury; and
(ii)been offered suitable employment by the respondent, noting that the respondent accepts that Mr Sambastian’s right elbow injury has continued to restrict his capacity for work?
[11] Respondent’s closing submissions filed on 2 February 2016, p 1.
WAS MR SAMBASTIAN ENTITLED TO INCAPACITY PAYMENTS FROM 13 SEPTEMBER 2012 TO 28 MARCH 2013?
This issue essentially turns on whether the duties offered to Mr Sambastian on 13 and 14 September 2012 were suitable for him, such that he could have continued to undertake those duties, but chose not to.
As I have already alluded to, the respondent does not dispute that, during this period, Mr Sambastian continued to suffer the effects of his compensable injuries, namely “a left shoulder labral tear (2001) post surgery”, and “right elbow cartilage thinning (being a manifestation of right elbow osteoarthritis) (2002)”.[12] There is also no dispute that during the relevant period, those injuries continued to cause restrictions on Mr Sambastian’s work capacity.
[12] Respondent’s closing submissions filed on 2 February 2016, at [5].
Relevant restrictions
Dr Begg is a Rheumatologist who has examined Mr Sambastian on a number of occasions at the request of the respondent. In his report of 26 October 2012, he stated:
In my opinion the applicant has the ability to participate in duties which do not require overhead use of the left arm or extremely heavy push/pull activities with the left arm. He is not capable of using the right elbow in forceful situations such as pushing/pulling heavy trolleys of mail as used in the depot or repeatedly lifting mail bundles over 5kg at a rapid rate for several hours. He has the ability to participate in work duties at Australia Post within these limitations.[13]
[13] Exhibit 1, T30/65.
The September 2012 program and duties
It is also not in dispute that Mr Sambastian returned to work on 13 and 14 September 2012, to commence a Rehabilitation Program dated 26 April 2007. The duties and restrictions imposed by this program were as follows:
Sort/throw in mail R49 – to use letter holders – all mail to be placed on trolleys – to be instructed on use of letter holders.
Delivery of R49 by walk round. (Amend to be driven to and from round in van).
Medical restrictions/special conditions:
No heavier lifting > 5 kgs
No work above left shoulder height
Avoid repetitive left shoulder movement
No banding of mail.[14]
[14] Exhibit 3, pp 1-2.
There is also no disagreement that Mr Sambastian attended the Marleston Delivery Centre to commence this Rehabilitation Program at approximately 6:00 am on 13 September 2012, and was instructed in the duties to be performed. Mr Sambastian does not dispute that he was not required to do anything contrary to the restrictions which had been identified, including lifting his arms above shoulder height, lifting anything above 5 kg, or any banding of mail. He also agreed during his evidence at the hearing that the “throwing in” aspect of those duties, which took about 30 minutes, did not cause him problems when he was doing it and was within his abilities.[15]
[15] Transcript, 7 December 2015, p 49 lines 4-11.
Mr Sambastian also acknowledged that on 13 September 2012, having completed the “throwing in”, he then accompanied another employee, Mr Muir, on the “Route 49” delivery, along King William Road, in Hyde Park, Adelaide. The Tribunal has had the benefit of viewing some video footage of Mr Sambastian and Mr Muir delivering mail along this route on 13 September 2012.[16] At the request of the parties, I also walked this route myself (unaccompanied) in preparation for the hearing.
[16] Exhibit 6.
It is agreed that during the Route 49 walk-around, Mr Muir pushed the mail trolley for the vast majority of the time, and handed Mr Sambastian about two letters at a time, which Mr Sambastian delivered to the various premises. There were a number of doors which Mr Sambastian needed to open, which Mr Muir estimated at between 20 and 50,[17] of varying weights and configurations.
[17] Transcript, 8 December 2015, p 171 line 31.
Mr Sambastian performed these duties again on Friday, 14 September 2012, following the same procedure as that adopted on 13 September 2012.
The aftermath of 13 and 14 September 2012
However, Mr Sambastian did not return to work on the next business day, Monday, 17 September 2012. Instead, he telephoned the delivery manager, Mr Ellis, and informed Mr Ellis that he had a sore elbow, could not attend work, and would see a doctor later that day. [18]
[18] Exhibit 8, at [13].
On 18 September 2012, Mr Ellis received a medical certificate signed by a Dr Nguyen, indicating that Mr Sambastian was unfit for work on 17 and 18 September 2012, due to “R elbow pain and osteoarthritis” and would be fit to return to work on 19 September 2012.[19] On 18 September 2012, Dr Nguyen provided a further certificate indicating that Mr Sambastian was suffering from “R elbow and upper arm pain” and would be unfit for work until 26 September 2012.[20] On 5 October, Dr Nguyen provided a further medical certificate indicating that Mr Sambastian was suffering from “R elbow pain + cartilage loss + MRI scan”,[21] and should be fit to resume work on 11 October 2012.
[19] Exhibit 2, T19/37.
[20] Exhibit 2, T20/38.
[21] Exhibit 2, T21/39.
In his oral evidence, Mr Sambastian explained that performing the duties on 13 and 14 September 2012 had caused pain in his right elbow and a loss of grip strength in his right hand. In particular, Mr Sambastian said that either late on the 14th or on the following day he “couldn’t use [his] hand any more … my hand stops functioning”.[22] He said he had no grip force or strength in his hand and was unable to turn the ignition key of his car. He was not able to clearly link these symptoms with any particular aspect of his duties on 13 and 14 September 2012. However, he did indicate that he had had this problem previously and it was an intermittent problem which occurred when his right limb condition had been aggravated.
[22] Transcript, 7 December 2015, p 56 lines 16-21.
Significantly, Mr Sambastian attended a medical examination by Dr Begg about six weeks later, on 23 October 2012.[23] Dr Begg took the following history from Mr Sambastian:
He said that he returned to work on 13 September 2012 as planned. He said he threw mail into a sorting frame at the Marleston Mail Depot for about an hour. He said he was then driven to the Mary Street Post Office where he was accompanied on the walk round to Mitchell Street and back, down both sides of King William Road. The delivery took about one and a half hours. He walked while his colleague pushed the cart, while he delivered the mail to the various businesses along the road before being driven back to the depot, from whence he drove home. He said his right elbow was hurting by then. He took two Panadeine Forte tablets about lunch time and two more before retiring that night. The elbow still felt painful the following morning. He took two more Panadeine Forte tablets and drove down to Marleston Depot where he threw mail again for about one and a half hours before being taken to Mary Street and following the same routine. He said that while delivering the mail he had to use his right hand rather than his left. Again he took more Panadeine Forte tablets after going home in the afternoon. He said that the next morning he could not bend his right elbow more than ninety degrees. He had no strength in his right hand and had difficulty opening doors or turning the ignition in his motor vehicle. He consulted his local GP Dr. Nuyen (sic) on the following Monday. An application was made for an appointment to see an orthopaedic surgeon at The Queen Elizabeth Hospital. So far he had heard nothing further about this. Meanwhile his doctor had referred him to Dr. Farquharson whom he saw on 15 September 2012. An MRI of the right elbow was ordered. Again it showed some chondral thinning of the posterior articular surface of the capitellum with no progression since the previous MRI in May 2010. Dr. Farquharson recommended that he keep his appointment with The Queen Elizabeth Hospital when it comes through. Mr Sambastian said that the elbow was not as painful now as it was after his two working days but he still felt continuous throbbing, soreness and numbness in it (his words). He was still driving, shopping and attending to domestic necessities. He was taking two Panadeine Forte tablets about every other night, he said.[24]
[23] Exhibit 1, T30/60.
[24] Exhibit 1, T30/60-61.
Dr Begg also undertook a worksite visit at the Marleston Mail Depot on 20 September 2012. It appears he was wrongly informed on this occasion that Mr Sambastian carried out no work on 13 September 2012.[25] Dr Begg concluded in his report of 26 October 2012, “[i]t is unreasonable to expect that any increased symptoms would still be felt in the right elbow following the brief exposure to minimal elbow activity over a month ago”.[26]
[25] Exhibit 1, T30/62.
[26] Exhibit 1, T30/64.
During his oral evidence at the hearing, Dr Begg confirmed that, in his opinion, Mr Sambastian was exaggerating his pain and lack of movement during the examination on 23 October 2012.[27] He expressed the opinion that there was no reason to believe that Mr Sambastian’s right elbow had deteriorated since the September 2012 return to work and the duties he undertook on 13 and 14 September were unlikely to have harmed Mr Sambastian in any way.[28]
[27] Transcript, 9 December 2015, p 206 line 16.
[28] Transcript, 9 December 2015, p 207 line 22.
When asked about the potential significance of the need to open and close doors during the Route 49 delivery, Dr Begg opined that, notwithstanding the need to do this, the duties were suitable and could not have caused anything more than mild discomfort.[29] He also commented during his oral evidence, “even if it caused discomfort it’s not going to cause the level of discomfort that would prevent opening a door”. He further indicated that this would not have caused any aggravation or after effects.[30]
[29] Transcript, 9 December 2015, p 218 line 26-p 219 line 15.
[30] Transcript, 9 December 2015, p 217 line 41.
However, Mr Sambastian has pointed out that, subsequent to September 2012, further investigations were undertaken which shed further light on the precise nature of his right elbow and right arm problems. He contends that his complaints, and indeed his degree of incapacity, need to be assessed in light of what those later investigations revealed.
It is therefore necessary for me to review the evidence relevant to this issue with a view to determining what the status of Mr Sambastian’s right elbow and arm was in September 2012.
The nature of Mr Sambastian’s right arm condition(s) in September 2012
The evidence
Having carefully reviewed the evidence, I acknowledge that there is a substantial body of material which suggests that, as at September 2012, the pathology in Mr Sambastian’s right arm and elbow may have gone beyond the accepted condition of “right elbow cartilage thinning”.
At the request of his then solicitors, Mr Sambastian was examined by Dr Cullum, Consultant Occupational Physician, in April 2013. Although Dr Cullum found Mr Sambastian to have “outstanding” grip strength, he also found evidence of a “radial tunnel syndrome with a slight delay of the posterior interosseous response”.[31] With respect to Mr Sambastian’s work capacity, Dr Cullum recommended:
A return to work within duties but avoid twisting torque movements of the right upper extremity aggravating a potential mild radial tunnel syndrome. He should avoid tasks at and above shoulder height with an estimated initial lifting ability of 10 kilograms at waist height and avoiding tasks more than 5 kilograms at and above shoulder height and in particular avoiding repetitive tasks with torque.[32]
[31] Exhibit 1, T51/120.
[32] Exhibit 1, T51/121.
Dr Cullum also commented:
The right elbow injury in my view is predominantly due to a radial tunnel syndrome or entrapment of the posterior interosseous nerve as it passes through the Arcade of Frohse and this needs further evaluation and management.[33]
[33] Exhibit 1, T51/121.
Later in his report, Dr Cullum indicated that he disagreed with Dr Begg’s opinion in respect of Mr Sambastian’s right elbow as, in Dr Cullum’s view, “there is clearly tenderness over the radial tunnel and weakness of the extensor indicis”.[34]
[34] Exhibit 1, T51/122.
Also before me are a number of reports and certificates provided by Dr Jonathon Cook, who I understand is a General Practitioner, with a Graduate Diploma in Occupational Health. From this material, it seems that by July 2013, Dr Cook had diagnosed Mr Sambastian as suffering from “right elbow joint – lateral epicondylitis, radial tunnel syndrome and articular cartilage damage”.[35]
[35] Exhibit 2, T69/143.
In a certificate provided on 31 July 2013 (the day after Mr Sambastian next attended work), Dr Cook stated that Mr Sambastian was suffering from “right elbow joint – lateral epicondylitis and acute flareup of radial tunnel syndrome with pain 8/10”. He indicated that he had prescribed “Panadeine Forte 2 tablets 4 times a day for pain relief”, and that Mr Sambastian “will require surgery (sic) not improved by PRP treatments – referral Dr Simmons and Dr Ted Mah”.[36]
[36] Exhibit 2, T75/152.
The material before me also includes a report of Dr Neil Simmons in relation to “PRP injections of the right elbow” on 5 August 2013.[37] The report (relating to an ultrasound and injection) states as follows:
There is a small echogenic/sonolucent/echogenic line running parallel to the common extensor fibres over some distance. This is strongly suggestive of a tear. …
No abnormality was seen around the posterior interosseous nerve.
…
A 25 gauge needle was used to infuse approximately 2 ml of PRP into the common extensor tendon. We aimed for the presumed tear and noted that it was indeed a tear with a large cavity revealed, filled by the PRP mixture as the injection proceeded. … then instilled approximately 0.5 ml of PRP around the posterior interosseous nerve at the level of the Arcade of Frohse. A 25 gauge needle was again used.[38]
[37] Exhibit 2, T77/154.
[38] Exhibit 2, T77/154.
For completeness, I note that in his statement of 1 July 2014, Mr Sambastian said “[t]he doctor at the clinic … told me that I had a split in the radial tunnel and a hole in the tendon. They injected plasma into the elbow and arm”.[39]
[39] Exhibit 18, at [27].
In a report to Mr Sambastian’s solicitors on 25 August 2013, Dr Cook noted that Mr Sambastian returned to alternate duties on 31 July 2013 and:
Had an acute severe flareup of right elbow and forearm pain which I considered was probably due to the flare up of the radial tunnel syndrome and lateral epicondylitis. I referred him to Dr Neil Simmons for PRP treatment and also provided a referral to Dr Ted Mah Orthopaedic Surgeon. On 2/8/2013 pain in the right forearm was gradually settling. On 9/8/2013 I reviewed Mr Sambastian. At that stage he had undergone PRP – platelet rich plasma treatment with Dr Neil Simmons Radiologist with this being performed under diagnostic ultrasound guidance on 5/8/2013.
…
At review on 9/8/2013 Mr Sambastian was extremely relieved to learn that organic pathology had indeed been demonstrated at the common extensor origin, and that this would account for his ongoing chronic symptoms whenever he used the right wrist, hand and elbow. … I am … hopeful that PRP treatment will heal this.[40]
[40] Exhibit 22.
Mr Sambastian was examined by Associate Professor Robert Bauze, Orthopaedic Consultant, at the request of the respondent, on 24 September 2013.[41]
[41] Exhibit 2, T91/179.
Associate Professor Bauze commented on the relevant investigations as follows:
I noted again the report of the MRI scan right elbow taken on 7 January 2008 – “There is evidence of full thickness loss of the articular cartilage overlying the capitellum. No loose body is seen within the joint. Common extensor tendinosis.[42] (Note – Flexor not extensor!)”
Ultrasound of 5 August 2013 is reported as showing – “There was a small echogenic/sonolucent line running parallel to the common extensor fibres over some distance. This is strongly suggestive of a tear. Despite this there is no hyperaemia. The tendon shows mottling of echotexture otherwise. No abnormality was seen around the posterior interosseous nerve”.[43] (emphasis in original)
[42] The Tribunal notes that Professors Bauze had incorrectly quoted the report of the MRI Scan dated 7 January 2008.
[43] Exhibit 2, T91/184.
With respect to the diagnosis of Mr Sambastian’s condition, Associate Professor Bauze stated “[l]ateral epicondylitis/common extensor tendinosis, right elbow”.[44] He noted that the condition was improved following the PRP injections.
[44] Exhibit 2, T91/184.
With respect to causation of the condition, Associate Professor Bauze stated:
I do not consider that work has made a significant contribution to his current elbow condition. I suspect that the condition is unrelated to the original incident as described but is more likely related to his activities outside work. There may have been a click or a snap in the elbow when he hit the wall in 2002 (? 2004) and that may well have caused some thinning of the articular cartilage of the radio capitular joint. However, he is not having any problems with that joint. The problem is his lateral epicondyle and its common extensor tendon origin. This was not present when I saw him on 13 February 2008 as indicated in my report of 14 February 2008. It has happened since then, during which time he has done no more than a few hours of work with APO.
In my opinion it is impossible that the work in September 2012 or July 2013 would have caused this lateral epicondylitis and that the tear diagnosed by Dr. Simmons on ultrasound.[45]
[45] Exhibit 2, T91/185.
Associate Professor Bauze continued later in his report:
There is no evidence at all that his current right elbow condition (not injury) is related to the incident of 7 March 2002. The condition of lateral epicondylitis was certainly not present when I examined him in 2008 and it seems that it was not present when he was examined by Dr. Cullum in April 2013 although perhaps he was distracted by his diagnosis of a posterior interosseous nerve entrapment problem which is not present now. Whatever changes there may have been on electric conduction studies were not clinically significant at that time … and are certainly not present now.[46]
[46] Exhibit 2, T91/185.
He added:
It is impossible that he would have sustained any aggravation of his right elbow lateral epicondylitis from the work that he was doing for the 5 hours on 30 July 2013 which he could do at his own pace with regular rotation. I consider it is possible that he would have felt pain in the elbow because he had lateral epicondylitis but that would not be a genuine aggravation.[47]
[47] Exhibit 2, T91/186.
In a report dated 25 October 2013, Dr Cook commented on the report from Associate Professor Bauze dated 25 September 2013 and stated “I would agree with Prof Bauze’s opinion that Mr Sambastian … was suffering from lateral epicondylitis type syndrome – due to a chronic tear of the common extensor origin”.[48]
[48] Exhibit 2, T101/199.
Dr Cook further stated:
I would agree with Prof Bauze that it was unlikely that the light alternate duties in 2013 would have made a major contribution to the chronic tear of the extensor tendon, but did produce acute flareup of the pre-existing condition – an acute irritation.
Regarding the restricted duties performed on 14/9/2012 when he attended for 5 hours this had been described by Mr Sambastian as delivery of mail and putting mail into letterboxes/pigeonholes. The pushing of the trolley could have produced an acute exacerbation aggravating the right elbow condition. Putting letters into pigeonholes could have caused an acute flareup of pain irritating the pre-existing chronic tear of the common extensor origin.[49]
[49] Exhibit 2, T101/200.
Dr Cook continued:
He should not perform activities which would interfere with the PRP treatment performed by Dr Neil Simmons – regeneration medicine to heal the tear of the common extensor tendon. If this remained symptomatic and did not heal I would recommend he be referred to an upper limb surgeon for surgery to repair the tear of the common extensor tendon.
Regarding the injury causation gained a history that Mr Sambastian was riding a scooter in 2004, the scooter collided with a wall, he hit his right open hand which was fully extended onto a wall and produced immediate elbow pain – he “felt a snap” of the elbow which felt numb for weeks afterwards and he continued to have ongoing pain of the elbow and weakness in the right hand. This history would be consistent with his presentation of a chronic tear of the common extensor origin which remained not healed. Most likely the duties undertaken in 2012 and 2013 caused an irritation and flareup of pain of the pathology.[50]
[50] Exhibit 2, T101/201.
In May 2014, Mr Sambastian was also examined by Mr Munyard, Orthopaedic Surgeon, who provided a report to Mr Sambastian’s solicitor dated 6 May 2014. Mr Munyard recorded that “the presentation in regard to his right elbow is one of osteoarthritis at this stage rather than lateral epicondylitis”.[51]
[51] Exhibit 24, p 3.
Dr Begg also examined Mr Sambastian in June 2014 and noted the right lateral epicondylitis diagnosis and PRP injections.[52] Dr Begg commented “[i]f there was ever a right lateral epicondylitis present there is no evidence of it now and he does not have a radial tunnel syndrome as suggested at one stage”.[53]
[52] Exhibit 13, p 1.
[53] Exhibit 13, p 2.
He added:
The residua from his two original work injuries are the left shoulder labral tear and the right elbow cartilage loss. He currently has no other medical condition from any work injury. According to the reports he may have had a right lateral epicondylitis from his second attempt to return to work according to the documents but it has clearly now healed itself.[54]
[54] Exhibit 13, p 3, at [3.2].
Analysis
Having regard to this evidence, as pointed out to the parties in correspondence after the hearing,[55] the possibility arises that the duties Mr Sambastian undertook on 13 and 14 September 2012 did cause an aggravation of a condition which was subsequently diagnosed as a tear of the common extensor tendon, tendinosis with lateral epicondylitis, and some degree of nerve involvement. However, as the respondent has contended in its Supplementary Submissions dated 5 October 2016, much of the evidence weighs against that possibility.
[55] The Tribunal’s letter of 30 August 2016.
Firstly, a conclusion to that effect would be inconsistent with Dr Begg’s evidence. Dr Begg saw Mr Sambastian about six weeks after Mr Sambastian’s return to work on 13 and 14 September 2012, and did not detect any of the subsequently diagnosed conditions. Dr Begg’s diagnosis on that occasion was that “[t]he diagnosis remains right elbow osteoarthritis, but this should be qualified by stating that he has only one minor manifestation of this condition, namely an area of cartilage thinning”.[56]
[56] Exhibit 2, T22/44, at [7.1] (emphasis in original).
In his oral evidence, Dr Begg indicated that he had not been able to discern any epicondylitis on any of the occasions that he had examined Mr Sambastian.[57]
[57] Transcript, 9 December 2015, p 207 line 31.
Dr Begg explained in his evidence that epicondylitis was often related to a tear of a tendon at the point of attachment to the bone, leading to inflammation.[58] He also expressed the view during his oral evidence that even if Mr Sambastian did have epicondylitis, it was not related to the original injury in 2002. As to the reason for this, he commented, “[b]ecause we know the original injury was to the cartilage which is some distance from the outer side of the elbow, and there was no indication or symptoms to suggest epicondylitis at the time of the earlier examinations”.[59]
[58] Transcript, 9 December 2015, p 211 line 33.
[59] Transcript, 9 December 2015, p 212 lines 44-47.
He acknowledged that if Mr Sambastian did have epicondylitis this would make it difficult for him to turn a key.[60] When Dr Begg was asked by the Tribunal whether turning a key was likely to be painful to a person with acute epicondylitis which had been “stirred up” by activities “over a couple of days”, Dr Begg responded as follows:
It gives some credence to the situation that he had a lateral epicondylitis at that particular time but I would strongly doubt if it was work caused. It’s possible – this is a bit hypothetical but it’s possible that he had an epicondylitis which was aggravated by that day at work and an aggravation such as that would expect to clear in – considering the nature of the work – in 24 hours.[61]
[60] Transcript, 9 December 2015, p 214 line 43.
[61] Transcript, 9 December 2015, p 215 lines 4-9.
He went on to explain that in the context of epicondylitis, reflex muscle weakness could occur as a mechanism to protect a person from pain.[62] He also acknowledged that if there had been tennis elbow or epicondylitis present, then opening up to 50 doors on two days straight could “aggravate it and cause discomfort starting the car but no more than a minor aggravation because the forces applied cannot be considered to be heavy”.[63] He also acknowledged that if there had been such an aggravation it would not necessarily have been advisable for Mr Sambastian to continue carrying out those duties.[64]
[62] Transcript, 9 December 2015, p 215 lines 21-22.
[63] Transcript, 9 December 2015, p 219 lines 32-34.
[64] Transcript, 9 December 2015, p 219 line 44.
Dr Begg also indicated in the course of his oral evidence that he did not accept that Mr Sambastian had suffered from radial tunnel syndrome and nor did he regard this as an authoritative medical diagnosis.[65] He also did not consider there to be any connection between any radial tunnel syndrome and Mr Sambastian’s compensable injuries. He further pointed out that when he saw Mr Sambastian in 2014 there were no signs of tennis elbow “so you would have to say it was healed”.[66] He confirmed later in his evidence that a person with tennis elbow needed to exercise a degree of caution in actions such as opening a door with the affected arm.[67]
[65] Transcript, 9 December 2015, p 221 lines 23-25.
[66] Transcript, 9 December 2015, p 222 line 37.
[67] Transcript, 9 December 2015, p 223 lines 45-46.
I acknowledge that some of the other evidence does support the proposition that Mr Sambastian was suffering from a torn extensor tendon, tendinosis and lateral epicondylitis with nerve involvement in September 2012.
Certainly in April 2013, Dr Cullum found “tenderness over the radial tunnel and weakness of the extensor indicis”[68] as well as “entrapment of the posterior interosseous nerve as it passes through the Arcade of Frohse”.[69] Arguably, Dr Cullum’s observations and diagnoses were later supported by the ultrasound carried out in August 2013 which showed a large tear of the common extensor tendon.
[68] Exhibit 1, T51/122.
[69] Exhibit 1, T51/121.
On that occasion, PRP was injected into the tendon tear, and “around the posterior interosseous nerve at the level of the Arcade of Frohse”[70] — precisely the same location identified by Dr Cullum in April 2013. As noted above, Associate Professor Bauze also found epicondylitis in September 2013, with Dr Cook first diagnosing this in July 2013.
[70] Exhibit 2, T77/154.
Whilst agreeing with other doctors that the duties Mr Sambastian performed in September 2012 would not have caused or contributed to the tear of the extensor tendon, Dr Cook also expressed the view that it “did produce an acute flare up … an acute irritation”.[71] Dr Cook went on to offer the opinion that this tear was consistent with Mr Sambastian’s scooter accident in 2002, although he is the only doctor to have formed that opinion.
[71] Exhibit 2, T101/200.
With respect to this question of causation, I have concluded that I am not satisfied on balance that Mr Sambastian suffered any tear of his common extensor tendon in the 2002 accident. I note that an MRI of Mr Sambastian’s right elbow was undertaken on 7 January 2008. This showed “common flexor tendinosis” but no damage to the common extensor tendon, stating “[t]he common extensor tendon origin returns a normal signal”.[72] Having regard to that MRI scan, I am not satisfied that the tear discovered in 2013 was present in 2007. Nor am I satisfied on the evidence before me that this tear or the resultant problems including epicondylitis were caused or contributed to by any aspect of Mr Sambastian’s duties with the respondent, noting the nature of those duties and the fact that Mr Sambastian attended work for only a few days between January 2007 and August 2013.
[72] Exhibit 2, T6/10.
As to whether the later discovered right arm conditions were present in September 2012, and whether they were aggravated by the duties of 13 and 14 September 2012, the evidence is finely balanced. I note there is no contemporaneous evidence of Mr Sambastian suffering from epicondylitis, or tendinosis as at September 2012, and Dr Begg did not find this in October 2012. Dr Cook’s opinion as to the state of Mr Sambastian’s elbow in September 2012 was expressed in October 2013, and not based on any contemporaneous assessment or report.
However, Mr Sambastian has given consistent accounts of the symptoms he experienced on the morning of 15 September 2012, and subsequently.
Although Dr Nguyen did not diagnose any of the subsequently diagnosed conditions, he also certified that Mr Sambastian was unfit to continue to perform the duties he had been given from 17 September 2012 to 26 September 2012 and from 5 October 2012 to 10 October 2012.[73]
[73] Exhibit 2, T19/37 to T21/39.
Significantly, Dr Begg has also acknowledged that the symptoms described by Mr Sambastian were consistent with epicondylitis, and that if epicondylitis was present, this could have made twisting his hand more difficult and uncomfortable. He further acknowledged that, if the symptoms described by Mr Sambastian had occurred following opening a number of doors as part of his duties, this “gives some credence to the situation that he had lateral epicondylitis at that particular time”. He also explained that in the context of epicondylitis, pain could lead to reflex muscle weakness, and opening up to 50 doors on two days straight could aggravate it and lead to discomfort starting a car. He also acknowledged that if Mr Sambastian had experienced such an aggravation, it would not necessarily have been advisable for him to continue carrying out the same duties.
As I have indicated, Associate Professor Bauze found epicondylitis in September 2013, and also acknowledged that this may have been present in April 2013 when Mr Sambastian was examined by Dr Cullum. Of course, Dr Cook is strongly of the view that the tendon tear, epicondylitis and other conditions were present in September 2012, and explained the symptoms complained of by Mr Sambastian after carrying out those duties.
Having regard to all of the evidence, including Mr Sambastian’s account of the symptoms he experienced on 15 September 2012, together with the subsequent investigations which were undertaken and the reports of Dr Cullum, Associate Professor Bauze and Dr Cook, I have ultimately concluded that I am satisfied that the conditions diagnosed in July 2013 were present in September 2012. I am also satisfied that the duties Mr Sambastian undertook on 13 and 14 September 2012 caused an aggravation of one or more of his pre‑existing conditions of epicondylitis, tendinosis and tendon tear with nerve involvement, resulting in him having difficulty using his right hand on the morning of 15 September 2012. I am further satisfied that that aggravation took some time to fully settle, and resulted in ongoing incapacity to perform the relevant duties, at least for the period the subject of the certificates given by Dr Nguyen.
Of course, the issue of whether that aggravation was compensable is not one of the issues before me. In order for that issue to arise it would be necessary for Mr Sambastian to have made a claim for compensation in respect of the aggravation. However, I have concluded that the occurrence of this aggravation is relevant to whether the duties Mr Sambastian was given on 13 and 14 September 2012 were “suitable” within the meaning of the SRC Act.
I acknowledge in this context that the respondent was not aware of Mr Sambastian’s epicondylitis and other pre‑existing conditions when it developed these duties for him. Indeed, while he was aware of the symptoms, Mr Sambastian was apparently unaware himself that he was suffering from those conditions until they were diagnosed in 2013. Nevertheless, the Tribunal must assess the suitability of the duties by reference to all of the evidence now available and it must be the case that duties resulting in an aggravation of a pre‑existing condition cannot be regarded as “suitable” within the meaning of the SRC Act. Of course, a work-related aggravation of a pre‑existing condition is potentially compensable under the SRC Act. It would be a very odd result, in my view, if duties which were shown to have caused a potentially compensable aggravation of a pre‑existing condition were nevertheless regarded as “suitable” within the meaning of the SRC Act. Noting that the definition of “suitable employment” in s 4 of the SRC Act allows regard to be had to “any other relevant matter”,[74] I consider that a proven propensity to aggravate a pre‑existing condition constitutes such another “relevant matter”, with the result that the duties Mr Sambastian was given were not suitable for him within the meaning of the SRC Act.
[74] SRC Act s 4(a)(iv).
It follows, in my view, that as I am satisfied the duties Mr Sambastian was given on 13 and 14 September 2012 did result in an aggravation of his pre‑existing epicondylitis and/or other conditions, which I am satisfied were present in September 2012, with the benefit of hindsight, those duties were not “suitable” within the meaning of s 19 of the SRC Act. It also follows, in my view, that in declining to continue with those duties after 14 September 2012, Mr Sambastian did not fail to continue to engage in suitable employment with the respondent for the purposes of s 19(4)(c) and in the absence of suitable duties being offered to him, he was entitled to continue to receive incapacity payments between 17 September 2012 and 28 March 2013.
I note that my conclusion in this regard is inconsistent with the findings of the previous Tribunal. However, that inconsistency is explained entirely by new material being available to me which was not available to the previous Tribunal.
WAS THE REHABILITATION PROGRAM OF 28 MARCH 2013 SUITABLE?
In the original determination relating to this rehabilitation program, it was noted that it was developed in consultation with Mr Sambastian’s general practitioner, Dr Bowler, and, in particular, having regard to his report dated 26 March 2013.[75] The determination states “Mr Sambastian is fit to work five hours per day, 5 days per week, avoiding heavy lifting and pushing, ie less than 10kg. Dr Bowler has also stated clerical duties would be ideal.”[76] This is consistent with a medical certificate provided by Dr Bowler dated 26 March 2013.[77] The duties described in the determination were very light:
Redirections – provided to Mr Sambastian in a tray at work station for opening.
Checking Postal Delivery Officer’s redirection folder against redirection action list.
Collate householders – having stretch breaks every 15 minutes.
Assisting administration officer as directed within medical restrictions.[78]
[75] This appears to be a reference to a medical certificate of that day, at Exhibit 1, T42/104.
[76] Exhibit 1, T44/106.
[77] Exhibit 1, T42/104.
[78] Exhibit 1, T45/108.
I have also had the benefit of viewing a video which shows a demonstration of the duties involved.[79]
[79] Exhibit 7.
Although it was consistent with Dr Bowler’s recommendations, Mr Sambastian contends that the rehabilitation program of 28 March 2013 was clearly not suitable as, when he attempted similar duties a few months later, in July 2013, they aggravated his epicondylitis and other conditions. Accordingly, noting that Mr Sambastian did not actually commence the 28 March program, it is necessary in this context to consider the events surrounding the later rehabilitation program determined in July 2013.
There is no dispute as to the basic facts surrounding the July 2013 rehabilitation programs, which are helpfully summarised in respondent’s closing submissions as follows:
…
Subsequent to the 28 March 2013 rehabilitation programme … two further rehabilitation programmes were issued, on 5 July 2013 … (to commence on 8 July 2013) and 25 July 2013 … (to commence on 30 July 2013).
The duties prescribed in the 5 July 2013 rehabilitation programme … were similar to those in the 28 March 2013 rehabilitation programme and involved the clerical tasks of redirections, counting and collating householders, and assisting other administrative officers. These tasks were to be completed self-paced and the Applicant was to rotate between the tasks on a half hourly basis. A range of restrictions were included, and were based on a medical certificate issued by Dr Cook dated 5 July 2013. …
The 25 July 2013 rehabilitation programme comprised the same duties, although they were set out in greater detail … Again, the restrictions in that programme were based on Dr Cook’s medical certificate dated 19 July 2013 … which in turn referred back to the 5 July 2013 certificate. …
Prior to the finalisation of the 25 July 2013 rehabilitation programme, the Applicant and his GP (Dr Cook) attended Marleston Delivery Centre on 24 July 2014 for a worksite visit … Mr Payne (the then Manager of the Centre) discussed the proposed duties with Dr Cook and performed a demonstration of each duty. Dr Cook undertook the duties himself and also demonstrated them to the Applicant … The Applicant accepted, in cross-examination, that Dr Cook had shown the duties to him and had found them to be suitable … He also accepted that the duties reviewed by Dr Cook were the duties in the 25 July rehabilitation programme … .[80]
[80] Respondent’s closing submissions, at [94]-[97].
As I understand the position, there is also no dispute that Mr Sambastian reported for work on 30 July 2013 at the Marleston Delivery Centre to commence the 25 July 2013 rehabilitation program.[81] Mr Sambastian then commenced the duties, first counting householders and then collating them in the lunchroom.[82] Mr Sambastian later performed the redirection checks. However, in circumstances which are in dispute between the parties, Mr Sambastian did not return to work on 31 July 2013.
[81] Exhibit 10, at [5].
[82] Exhibit 10, at [5].
Mr Sambastian’s evidence as to why he did not return to work on 31 July 2013 is again helpfully (and accurately) summarised in the respondent’s closing submissions as follows:
In his written evidence and his examination in chief, the Applicant gave evidence that he intended to work the entire week. He accepted that the duties in the 25 July 2013 rehabilitation program “were pretty light” …. However, after work on the 30th, and on the morning of the 31st, he claimed to have pain in his right elbow and a loss of strength in his right hand and arm. The Applicant claimed that he called Dr Cook on the morning of the 31st and “told [him] I could work … no problem, because I have still got … at least 50 per cent strength left”. …. See also the applicant’s evidence … where the Applicant was claiming to the Tribunal that, after working on 30 July 2013, “his hands stopped working”, that he “couldn’t even pick up an empty can of Coca Cola” – and that he told Dr Cook that he had “lost about 50% of the strength [his] hand”.[83]
[83] Respondent’s closing submissions, at [101].
During cross‑examination, Mr Sambastian indicated that he wanted to return to work on 31 July 2013 but that Dr Cook “wouldn’t let me”.[84] He claimed that Dr Cook had told him not to attend work before Dr Cook examined him.[85]
[84] Transcript, 9 December 2015, p 267 lines 37, 41.
[85] Transcript, 7 December 2015, p 93 lines 40-42.
The respondent does not challenge Mr Sambastian’s evidence as to the nature of his communications with Dr Cook on 31 July 2013, and I accept that he did contact Dr Cook and that Dr Cook’s advice was consistent with Mr Sambastian’s evidence of their communications on that date. I note Mr Sambastian’s evidence is also consistent with the medical certificate provided by Dr Cook on 31 July 2013 indicating that Mr Sambastian was unfit for work from 31 July 2013 to 2 August 2013 and that he was suffering from “right elbow joint – lateral epicondylitis and acute flare up of radial tunnel syndrome with pain 8/10”. The certificate also indicated that Dr Cook had referred Mr Sambastian to Dr Simmons and an Orthopaedic Surgeon, Dr Mah. The respondent contends that Dr Cook’s opinion, and his certificates of incapacity, were the result of Mr Sambastian’s “exaggeration” of his arm symptoms, including loss of strength in his right arm.[86]
[86] Respondent’s closing submissions, at [101].
Dr Cook subsequently certified that Mr Sambastian remained unfit for work from 2 August 2013 to 9 August 2013,[87] and from 9 August to 30 August 2013.[88] Although Dr Cook was apparently not available between 3 and 10 September, he also certified Mr Sambastian as unfit for work between 10 and 24 September 2013,[89] and from 24 September 2013 to 8 October 2013.[90]
[87] Exhibit 2, T76/153.
[88] Exhibit 2, T78/155.
[89] Exhibit 2, T86/173.
[90] Exhibit 2, T90/178.
As I have already recorded, Mr Sambastian was examined by Associate Professor Bauze on 24 September 2013, when Associate Professor Bauze found lateral epicondylitis. Associate Professor Bauze noted “[i]t would seem that he is getting a good result from the PRP injections. If improvement is not sustained surgery would be a reasonable option”.[91] Associate Professor Bauze also stated:
It is impossible that he would have sustained any aggravation of his right elbow lateral epicondylitis from the work that he was doing for the 5 hours on 30 July 2013 which he could do at his own pace with regular rotation. I consider it is possible that he would have felt pain in the elbow because he had lateral epicondylitis but that would not be a genuine aggravation.[92]
I note that in his reports and oral evidence, Dr Begg essentially agreed with that opinion.
[91] Exhibit 2, T91/186.
[92] Exhibit 2, T91/186.
Nevertheless, Dr Cook continued to certify Mr Sambastian as unfit for work from 8 October 2013 to 5 November 2013.[93]
[93] Exhibit 2, T96/193.
As alluded to above, in his report of 25 October 2013, Dr Cook also stated “I would agree with Prof Bauze that it was unlikely that the light alternate duties in 2013 would have made a major contribution to the chronic tear of the extensor tendon, but did produce acute flareup of the pre‑existing condition – an acute irritation”.[94]
[94] Exhibit 2, T101/200.
Significantly, Dr Cook also stated:
Mr Sambastian volunteered further information to Prof Bauze which had not been forthcoming to Dr Cullum or Dr Cook, this being that he manufactured motorised bicycles. With the requirements for performing this duty it should also be that Mr Sambastian could perform the very light alternate duties organised by Dr Cook at Australia Post. He could employ the same strategy of pacing with rest periods as when manufacturing motorised bicycles and regarding flareup of pain as reported to Dr Cook when performing the light alternate duties at Australia Post. He should not perform activities which would interfere with the PRP treatment performed by Dr Neil Simmons – regeneration medicine to heal the tear of the common extensor tendon.[95]
[95] Exhibit 2, T101/200-201.
He completed his report by stating “[m]ost likely the duties undertaken in 2012 and 2013 caused an irritation and flareup of pain of the pathology”.[96]
[96] Exhibit 2, T101/201.
Analysis
Having regard to this evidence, the question of whether the duties undertaken by Mr Sambastian on 30 July 2013 were suitable for him is a difficult one. It is clear that in July 2013, based on the symptoms reported by Mr Sambastian and his examinations, Dr Cook formed the view that the duties performed by Mr Sambastian had resulted in an acute flare up of his epicondylitis and radial tunnel syndrome such that Mr Sambastian was not fit for work and required urgent treatment. Mr Sambastian has also given consistent evidence about what he experienced on 31 July 2013 and I accept his evidence that Dr Cook told him not to continue with the duties on 31 July 2013.
However Dr Cook was unaware at that time that Mr Sambastian also manufactured motorised bicycles. Once he became of this, in October, he expressed the view that he still considered the duties to be suitable, and Mr Sambastian “could employ the same strategy of pacing with rest periods” which he used when manufacturing bicycles.
The material before me also includes the evidence of two specialists, Dr Begg and Associate Professor Bauze, each of whom have expressed the opinion that even accepting he was suffering from epicondylitis at the time, the July 2013 duties were suitable for Mr Sambastian and would not have caused an aggravation. The duties given to Mr Sambastian on 30 July 2013 would also appear to be consistent with the restrictions recommended by Dr Cullum who stated “[i]t is particularly important that the return to work involved does not result in torque movements irritating the posterior interosseous nerve in the radial tunnel”[97] (although it should be noted that Dr Cullum did not detect Mr Sambastian’s epicondylitis condition when he saw him in April 2013).
[97] Exhibit 2, T50/98.
On balance, notwithstanding the contemporaneous assessment of Mr Sambastian’s General Practitioner, Dr Cook with respect to this issue, I have decided that I prefer and should accept the opinions of the specialists, Dr Begg and Associate Professor Bauze, as to the suitability and impact of the 30 July 2013 duties. Consistently with my previous conclusions, I accept that as at July 2013, Mr Sambastian was suffering from epicondylitis of his right elbow, together with a right extensor tendon tear, tendinosis and possibly other symptoms related to his radial tunnel. However, having regard to the specialist medical evidence, I do not accept that any of those conditions was aggravated by the very light duties of 30 July 2013. As the specialists have acknowledged, it is quite plausible that, by reason of his pre‑existing conditions, Mr Sambastian experienced some discomfort in performing the duties. However, I am not satisfied that any such discomfort was other than fleeting, or that it amounted to an aggravation of any of his conditions, or rendered the duties of 30 July 2013 unsuitable for him. In reaching that conclusion, I have also been influenced by the fact that, when he considered the issue again in October 2013 with the benefit of additional information, Dr Cook also agreed that the July 2013 duties were suitable.
As it was otherwise consistent with Dr Bowler’s advice, I am accordingly satisfied that the March 2013 rehabilitation plan was suitable.
DID MR SAMBASTIAN HAVE A “REASONABLE EXCUSE” FOR FAILING TO UNDERTAKE THE REHABILITATION PROGRAM OF 28 MARCH 2013, WHICH WAS DUE TO COMMENCE ON 2 APRIL 2013?
There is no dispute that Mr Sambastian did not commence the program on 2 April 2013, and indeed did not return to work until much later, namely 30 July 2013. The issue in dispute is whether Mr Sambastian had a “reasonable excuse” within the meaning of s 37(7) of the SRC Act, for not commencing the program.
In this context, the respondent has directed my attention to the applicable case law, including the decision of the Full Federal Court in Australian Postal Corporation v Pascoe[98] and the decision of Griffiths J in Australian Postal Corporation v Nunez.[99] I accept that those authorities have the effect that in considering whether there is a reasonable excuse, the Tribunal is not entitled to assess the suitability or reasonableness of the rehabilitation program itself (which I have found to be suitable in any event), or otherwise “gainsay” that program.[100] The authorities also have the effect that the Tribunal is required to direct its attention to the reasons put forward by the applicant at the time for not commencing the program.
[98] (2004) 38 AAR 314 (Pascoe).
[99] (2014) 143 ALD 357.
[100] Pascoe, at [14]-[21].
The rehabilitation program the subject of the determination made on 28 March 2013, required Mr Sambastian to commence work at 6:00 am on 2 April 2013, which was the Tuesday following the Easter long weekend. The program was emailed to Mr Sambastian on 28 March 2013, being the Thursday before the Easter long weekend, at 4:57 pm.[101]
[101] Exhibit 20.
Following Mr Sambastian’s non‑attendance on 2 April 2013, on 4 April 2013 the respondent wrote to him in relation to his failure to commence the program stating:
Please note that if you fail to commence the rehabilitation program by Monday, 12 April 2013 (8 days of the date of this letter), or if you fail to provide a satisfactory explanation for non-compliance with the above rehabilitation program within 8 days of the date of this letter, your rights to compensation will be suspended.[102]
The respondent contends that, in effect, this extended Mr Sambastian’s opportunity to commence the program from 2 April until 12 April 2013.[103]
[102] Exhibit 1, T46/110.
[103] Respondent’s closing submissions, at [77].
On 8 April 2013, Mr Sambastian’s solicitor, Mr Wearing, wrote to the respondent replying to their letter of 4 April 2013. In that letter, Mr Wearing stated:
Mr Sambastian did not present for work on 2 April 2013 as proposed in the Rehabilitation Program for the following reasons:-
1. Mr Sambastian received the Program and your determination as attachments to your email on the afternoon of Thursday, 28 March 2013, immediately before the Easter long weekend. He was not at home.
2. Mr Sambastian could not read the program on his mobile telephone. Your covering email did not state that he was required to attend work on the Tuesday morning following the long weekend. You did not telephone him to tell him that he was expected to attend work on Tuesday morning.
3. Mr Sambastian did not know until the following week that that was what was proposed in the Program.
4. In any event, your very late delivery of the Program prevented Mr Sambastian from obtaining medical or legal advice on it.
5. The duties described in the program are not within the range of duties for which Mr Sambastian has been assessed as being fit by Dr Bowler. Rather, Dr Bowler has considered that Mr Sambastian should perform clerical duties.
6. Mr Sambastian is not fit to carry out the duties proposed in the Program.
7. The duties proposed in the Program are essentially the same as those that caused a further injury, or an exacerbation of his pre‑existing injuries, in September 2012.
8. Mr Sambastian is seeking further medical advice regarding his capacity for work and does not wish to risk a further aggravation of his compensable disabilities by undertaking duties for which he is unfit.[104]
[104] Exhibit 1, T47/113-114.
With respect to the issue of whether Mr Sambastian in fact became aware of the rehabilitation program before it was due to commence on 2 April 2013, although he initially had difficulty recalling the precise events of April 2013, Mr Sambastian ultimately gave clear and consistent evidence that he went away camping over the 2013 Easter weekend, and either could not access or did not read the details of the rehabilitation program (which were set out in an attachment to a covering email) until after 2 April 2013. Mr Sambastian said that he went camping on the Fleurieu Peninsula, and I note this receives some corroboration from a facsimile transmission from him to Australia Post, which is marked as being sent on 28 March 2013 at 1:54 pm from Yankalilla (on the Fleurieu Peninsula).
I note the respondent’s contention that the statement in Mr Wearing’s letter that “Mr Sambastian received the program and your determination as attachments to your email on the afternoon of Thursday, 28 March 2013” should be read literally to mean that Mr Sambastian actually received and read these documents on the Thursday afternoon. However, I have ultimately concluded that it is more likely that what Mr Wearing intended to convey was that the email, addressed to Mr Sambastian, was sent on the afternoon of Thursday, 28 March 2013. On analysis, I do not consider this statement to be inconsistent with Mr Sambastian’s evidence to the effect that it was not actually read by him until he returned from his camping trip after the Easter long weekend. As I accept Mr Sambastian’s evidence in this regard, it follows that the fact he was not aware of the rehabilitation program until after it had commenced potentially constitutes a reasonable excuse for him not commencing the program on 2 April 2013.
In the event however, I have concluded not a great deal turns upon the fact that Mr Sambastian did not become aware of the rehabilitation program until after it was due to commence on 2 April 2013. The issue which arises under s 37(7) of the SRC Act is whether an employee has failed without reasonable excuse to undertake a rehabilitation program. On my factual findings, it was not reasonable to expect Mr Sambastian to commence the rehabilitation program on 2 April 2013, however, it does not follow from that conclusion that he had a reasonable excuse for not undertaking the rehabilitation program at all.
It is clear on the evidence that Mr Sambastian was aware of the rehabilitation program by 8 April 2013.[105] On that date, Mr Wearing requested a reconsideration on Mr Sambastian’s behalf of the decision determining the rehabilitation program. He gave the following reasons for the request:
1. The duties inherent in the program are not within the range of duties for which Mr Sambastian was assessed as being fit by Dr Bowler. Dr Bowler in fact considered that the applicant should perform clerical duties.
2. Mr Sambastian is not fit to carry out the duties involved in the Upgraded Program.
3. Mr Sambastian was first informed of the determination which required him to attend at work on 2 April 2013, on Thursday, 28 March 2013, just before the Easter long weekend. This prevented him from obtaining medical or legal advice about the proposed duties before he was expected to perform them.[106]
[105] Exhibit 1, T47/113-114, T48/115, T49/116 and T50/117.
[106] Exhibit 1, T50/117.
With respect to the question of notification, however, in my view once the respondent extended the commencement date of the program to 12 April 2013, the issue became whether Mr Sambastian had a reasonable excuse for not commencing the program on or before that date.
As to the balance of the reasons given by Mr Wearing as to why Mr Sambastian did not commence the program, I do not accept that Mr Sambastian could not have obtained legal advice in relation to the program before 12 April 2013. It is apparent from the correspondence that he was in communication with his solicitor from at least 8 April 2013.
With respect to the proposed duties, even assuming that it is open to me in this context to consider the suitability of the duties, as I have already indicated, I am satisfied on the evidence that the duties were developed in consultation with Mr Sambastian’s General Practitioner, Dr Bowler, and in compliance with the restrictions indicated by him. I am also satisfied that the duties were quite different from and much lighter than the duties undertaken by Mr Sambastian in September 2012. Accordingly, I am not satisfied that the duties in the rehabilitation program were not suitable, that Mr Sambastian was not fit to carry out those duties in April 2013, or that he reasonably required medical advice in relation to the duties.
I have accordingly concluded that whilst I accept Mr Sambastian was not aware of the terms of the March 2013 rehabilitation program until after the intended commencement date of 2 April 2013, he was aware of the program by 8 April 2013, before the revised commencement date of 12 April 2013. Having considered the reasons put forward on his behalf at the time for not commencing the program, I have ultimately concluded that none of these constitutes a reasonable excuse for failing to undertake the program in April 2103 and I have accordingly decided to affirm the reviewable decision of 27 June 2013,[107] (which itself affirmed a determination of 16 April 2013)[108] suspending Mr Sambastian’s entitlement to compensation from 16 April 2013.
[107] Exhibit 1, T65/160.
[108] Exhibit 1, T54/131.
For completeness, I note that suspension persisted until 30 July 2013, when Mr Sambastian participated in a later rehabilitation plan.
DOES THE RESPONDENT HAVE AN ONGOING LIABLITY TO PAY COMPENSATION TO MR SAMBASTIAN IN RESPECT OF HIS RIGHT ELBOW INJURY FROM 28 OCTOBER 2013?
With respect to s 16 liability, I accept the respondent’s submission that as at 28 October 2013, Mr Sambastian was not receiving ongoing treatment for his compensable right elbow condition and as I understand the position, he has not obtained any treatment since then, or submitted any expenses for payment. In those circumstances, and having regard to the medical evidence before me, I am satisfied that as at 28 October 2013, the respondent had no liability under s 16 in relation to Mr Sambastian’s right elbow injury, and I should affirm this aspect of the decision under review. Of course, that will not preclude Mr Sambastian from claiming further expenses in the future should he need to obtain treatment for his compensable right elbow condition.
With respect to liability under s 19, for the reasons given above, I consider the duties offered to Mr Sambastian by the respondent in July 2013 were suitable for him. I also note that, despite his view that the duties had previously caused an acute irritation, as at the date of his report of 25 October 2013, even Dr Cook considered the July 2013 duties to be suitable for Mr Sambastian. In effect therefore, there is complete unanimity between the doctors as to the suitability of those duties as at October 2013.
It follows in my view that, as the respondent had offered Mr Sambastian suitable duties, which he declined to carry out, as at and from 28 October 2013, there was no difference between Mr Sambastian’s normal weekly earnings and his ability to earn in suitable employment. Having regard to the terms of s 19, it follows that he had no entitlement to incapacity payments after that date. Accordingly, I have also decided that the decision to cease incapacity payments from 28 October 2013 was correct and I should affirm that aspect of the decision under review.
CONCLUSIONS
Having regard to my conclusions as explained above, in applications 2013/2474 and 2013/2475, I have decided to set aside the decisions under review and substitute decisions that in the absence of suitable duties being offered to him, during the period 17 September 2012 to 28 March 2013, Mr Sambastian had no ability to earn and was therefore entitled to incapacity payments pursuant to s 19 of the SRC Act, on that basis.
I have decided to affirm the decisions under review in each of the other applications.
As Mr Sambastian has been successful in applications 2013/2474 and 2013/2475 and was legally represented earlier in the life of those applications, I am also minded to make a costs order in his favour in those applications, subject to any application from the respondent.
DECISION
In application 2013/2474, the decision under review is set aside and in substitution for that decision, it is decided that from 7 to 28 March 2013, Mr Sambastian was entitled to incapacity payments pursuant to s 19 of the SRC Act, calculated on the basis that he had no ability to earn in suitable employment.
In application 2013/2475, the decision under review is set aside and in substitution for that decision, it is decided that from 17 September 2012 to 7 March 2013, Mr Sambastian was entitled to incapacity payments pursuant to s 19 of the SRC Act, calculated on the basis that he had no ability to earn in suitable employment.
In applications 2013/2474 and 2013/2475, the Tribunal also:
(a)Reserves liberty to apply within 14 days in relation to the costs of the proceedings; and
(b)Orders that in the absence of any such application, the respondent is to pay the costs of the proceedings incurred by Mr Sambastian pursuant to s 67(8) of the SRC Act.
In applications 2013/2476, 2013/3133 and 2013/5810, the decisions under review are affirmed.
I certify that the preceding 120 (one hundred and twenty) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean
............ [Sgd] ......................................
Associate
Dated: 7 April 2017
Date(s) of hearing: 7 - 10 December 2015 and 18 February 2016 Date final submissions received: 26 October 2016 Applicant: In person Counsel for the Respondent: Mr G Johnson SC
Mr N SwanSolicitors for the Respondent:
Sparke Helmore Lawyers
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