Sanders and Australian Postal Commission

[2003] AATA 173

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 173

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2002/188

GENERAL ADMINISTRATIVE  DIVISION

Re:         TROY MICHAEL SANDERS

Applicant

And:       AUSTRALIAN POSTAL COMMISSION

Respondent

DECISION

Tribunal:       G.D. Friedman, Member

Date:             21 February 2003

Place:            Melbourne

Decision:The Tribunal sets aside the decision under review in respect of the applicant's right tennis elbow injury and substitutes a decision that under the Safety, Rehabilitation and Compensation Act 1988 the respondent is liable to pay compensation to the applicant and that liability continues.  In all other respects the Tribunal affirms the decision under review.  The respondent is to pay the applicant's costs.  

(sgd) Graham Friedman

Member

COMPENSATION ‑ right lateral epicondylitis ‑ whether condition ongoing

Safety, Rehabilitation and Compensation Act 1988 s14(1)

REASONS FOR DECISION

21 February 2003  G.D. Friedman, Member

1.      This is an application by Troy Michael Sanders (the applicant) for review of a decision of a delegate of the Australian Postal Corporation (the respondent) dated 19 December 2001.  The delegate varied a determination of the respondent dated 15 May 2001 to the effect that the respondent was no longer liable to pay compensation to the applicant for the condition of right lateral epicondylitis (right tennis elbow). 

2.      At the hearing of this matter on 4 February 2003 Mr J. Ferwerda of counsel represented the applicant and Ms A. McMahon of counsel represented the respondent.

3. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T25), together with four exhibits (Exhibits A1‑A4) lodged by the applicant and one exhibit (Exhibit R1) lodged by the respondent.

BACKGROUND

4.      The applicant was born on 19 May 1953 and commenced work with the respondent in March 1990.  In 1995 he was employed as a night sorter at the Sunshine Delivery Centre (Sunshine), and his duties included sorting, weighing and distributing mail as a supervisor.  Over the next four years he developed pain in his left and right elbows, and on 24 November 1999 he lodged a claim for compensation for tennis elbow & golfers elbow; left and right elbows arising from the repetitive action of sorting mail.  On 30 December 1999 the respondent accepted liability, and the applicant commenced a range of treatment options including medication, physiotherapy, acupuncture and ultrasound shock wave therapy.

5.      On 15 May 2001 the respondent made a determination that it was no longer liable to pay compensation to the applicant for the condition of right tennis elbow, although liability for left medial epicondylitis was continued, and liability for certain treatment was varied.  On 19 December 2001 the respondent affirmed the determination regarding the right elbow.

6.      On 25 February 2002 the applicant lodged an application with the Tribunal for review of the decision.

EVIDENCE

7.      The applicant told the Tribunal that before commencing employment with the respondent he had no history of pain in his elbows.  He explained that when he began to experience pain his duties were changed so that he would no longer be required to weigh and lift mail.  He said that he began a rehabilitation program and attempted other types of work including data entry and computer tasks.  The applicant then spent several weeks in the Dead Letter Office where his duties included opening and re‑addressing mail, although he stated that he had difficulty in gripping the letter opener.  He said that he returned to Sunshine but was given few duties, so he volunteered for projects including postal delivery on foot, keyboard tasks, and administrative relief duties in Geelong, but pain in his arms persisted.

8.      The applicant stated that since the pain in his elbows began he has missed work on one occasion only.  He said that he is currently receiving weekly physiotherapy treatment for his left elbow, but no treatment for his right elbow.  He stated that the right elbow is still painful and he suffers discomfort at night, which affects his sleep.  He said that he is unable to perform tasks such as mowing the lawn and is no longer able to ride a motorcycle because of the vibration.  The applicant also referred to difficulty in sitting for lengthy periods, handling household utensils and lifting objects.  He told the Tribunal that sometimes the pain stabilises and on other occasions it returns suddenly.  He stated that he wished to pursue further treatment options but since the decision to cease liability for compensation in May 2001 he has had insufficient financial resources.

9.      Under cross-examination the applicant acknowledged that he has remained working full‑time, doing administrative duties on a relief basis, despite the cessation of treatment for his right elbow, and he agreed that treatment already attempted has had little success.  He said that his current tasks do not involve lifting or repetitive work, and he is able to move freely about the workplace.  The applicant stated he consults Dr T. Brott, the occupational health physician engaged by the respondent, on a regular basis and derives benefit from the visits.

10.     In a written report dated 13 October 2000 (T11) Dr Brott, stated that the respondent referred the applicant to him in 1999 and he has remained a patient since.  He said he was not aware of any underlying or pre-existing condition, and diagnosed right tennis elbow and left medial epicondylitis.  He stated that the applicant’s employment as a night sorter with the respondent contributed significantly to this condition.  In a written report dated 31 August 2001 (T25) Dr Brott said that the applicant still suffered from right tennis elbow, and that the applicant’s inability to have any treatment other than injections limited the applicant’s rehabilitation options. He also provided a written report dated 29 October 2001 (T17).

11.     In a further written report dated 5 August 2002 (Exhibit A1) Dr Brott reiterated that the applicant suffered from ongoing right tennis elbow.  He expressed the opinion that the applicant would be permanently partially incapacitated as a result of his elbow injuries, and that treatment such as physiotherapy would be needed in the future at times when the injuries worsen.  In oral evidence Dr Brott stated that he diagnosed the pain and tenderness in the applicant’s right elbow as tennis elbow, and that the symptoms have remained almost unchanged.  He stated that although treatment has not been successful to date, he believed further treatment such as physiotherapy might assist the applicant in reducing pain to his right elbow and arm.

12.     Under cross-examination Dr Brott agreed that at times there is a reduction in pain and discomfort suffered by the applicant, but he said that at other times the right elbow condition deteriorates without warning.  He said that the applicant always answers questions reliably and presents as genuine.

13.     In a written report dated 3 April 2001 (T13) Dr K. Fraser, rheumatologist, stated after examining the applicant on 2 April 2001:

…

It would appear that he developed right lateral and left medial epicondylitis about eighteen months ago and that this was probably caused by repeated lifting in the course of his work as described previously.

However, his complaints of ongoing difficulty with even simple activities of daily living are out of proportion to the current physical findings which suggest that the right lateral epicondylitis has, to all intents and purposes, resolved…

14.     In a further written report dated 10 January 2003 (Exhibit R1), Dr Fraser stated that he re‑examined the applicant on 9 January 2003 and noted some tenderness at the right elbow.  However, Dr Fraser said that his earlier opinion remained unchanged, and he considered that it is probable that non‑organic factors such as psychological issues would be an impediment to the applicant’s rehabilitation.  In oral evidence Dr Fraser said that in his opinion there was no evidence of significant epicondylitis in the right elbow.

15.     In cross-examination Dr Fraser agreed that the applicant did not appear to exaggerate or embellish the symptoms, and that some of the tests performed on the applicant were subjective in their interpretation.

16.     In a written report dated 24 May 2001 (T15), Dr G. Davison, occupational physician, stated that the applicant suffered from right tennis elbow, although he noted some improvement since a previous assessment dated 19 May 2000 (T8) and described the chronic condition as rather mild.  He disagreed with Dr Fraser and accepted that the elbow conditions were related to the applicant’s employment.  He recommended a physical rehabilitation program in an attempt to increase the applicant’s physical capacities.  

CONSIDERATION OF THE ISSUES

17. Section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 provides:

…

14.(1)      Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

18.     Ms McMahon submitted that the evidence in this matter demonstrated that the condition of right tennis elbow has ceased and that the determination should be affirmed.  She said that there was no medical evidence of the condition and that the applicant had continued to perform full‑time duties with the respondent.  She noted that several treatment options had provided little or no relief from the symptoms, and there had been little change in these symptoms.  Ms McMahon relied on the evidence from Dr Fraser, who had detected no objective sign of injury to the right elbow, and who had suggested that non‑organic factors might be relevant.

19.     Ms McMahon noted that Dr Davison agreed with Dr Fraser that lifting contributes to epicondylitis, and that if the applicant confines his work to activities that do not involve sorting mail or lifting, then no treatment is necessary, and the minor symptoms experienced by the applicant would not interfere with his capacity to work.

20.     Mr Ferwerda submitted that the determination should be varied to provide for ongoing liability for compensation regarding the right elbow.  He referred to Dr Fraser’s acknowledgment that conditions such as lateral epicondylitis are subjective.  Mr Ferwerda said that the Tribunal should prefer Dr Brott’s evidence that the condition of right tennis elbow has not ceased, because Dr Brott has seen the applicant on more than fifty occasions and is familiar with his presentation and his work situation over several years.  Mr Ferwerda stated that from the applicant’s demeanour there was every indication that the description of the symptoms was given in an honest manner, without embellishment or exaggeration.  He pointed to a description of the applicant as quite genuine in his complaints (Dr Davison) and said that according to Dr Fraser the applicant gave his history in an honest and straightforward fashion and there was no over-reaction on physical examination.

21.     Mr Ferwerda stated that the applicant has only taken one day’s leave since his injuries occurred, he has co‑operated with rehabilitation and treatment programs, and has taken initiatives to remain a productive employee of the respondent.

22.     In reaching its decision the Tribunal takes into account the written and oral evidence and submissions made at the hearing.

23.     The Tribunal finds that the applicant presented as an honest and credible witness.  The Tribunal agrees with Mr Ferwerda that the applicant impressed the medical practitioners with his demeanour and lack of embellishment of symptoms.  The Tribunal also agrees that the applicant has displayed a genuine regard for the needs of the employer and has taken various initiatives to contribute to the organisation in a full‑time capacity, while recording only one day’s absence since his condition was diagnosed.

24.      With respect to the medical evidence, the Tribunal notes that Dr Fraser examined the applicant on two occasions and conceded that some of the tests performed on the applicant were subjective.  The Tribunal takes into account that in May 2001 Dr Davison confirmed his previous diagnosis of right tennis elbow, even though he considered that there had been some improvement in the condition. 

25.     The Tribunal accepts the submission from Mr Ferwerda that the Tribunal should prefer Dr Brott’s evidence that right tennis elbow is an ongoing condition.  The Tribunal takes into account Dr Brott’s detailed records of his consultations with the applicant over several years and the various treatment options that have been considered or attempted by the applicant.  These records include particular reference to the symptoms displayed by the applicant since May 2001 and his reliability and positive attitude to his employment responsibilities.

26.     For these reasons the Tribunal finds that the condition did not cease on 15 May 2001, and liability for compensation did not cease on that date. 

DECISION

27.     The Tribunal sets aside the decision under review in respect of the applicant's  right tennis elbow injury and substitutes a decision that under the Safety, Rehabilitation and Compensation Act 1988 the respondent is liable to pay compensation to the applicant and that liability continues.  In all other respects the Tribunal affirms the decision under review.  The respondent is to pay the applicant's costs.

I certify that the twenty-seven [27] preceding paragraphs are a true copy of the reasons for the decision of:

G.D.Friedman, Member

(sgd)       Olympia Sarrinikolaou

Clerk

Date of hearing:  4 February 2003
          Date of decision:  21 February 2003

Counsel for applicant:                  Mr J. Ferwerda
Solicitor for applicant:                  Slater & Gordon
Counsel for respondent:              Ms A. McMahon
Solicitor for respondent:              Australian Government Solicitor