Savage and Australian Postal Corporation

[2006] AATA 388

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 388

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W2004/226

GENERAL ADMINISTRATIVE DIVISION		)
Re		JEFFREY STEVEN SAVAGE

Applicant

And AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal Deputy President S D Hotop
Dr D Weerasooriya, Member

Date4 May 2006

PlacePerth

Decision

The Tribunal sets aside the reviewable decision of the respondent dated 1 June 2004, and, in substitution therefor, decides that the respondent is liable under s 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) to pay compensation to the applicant in accordance with that Act in respect of an injury, namely, aggravation of pre-existing osteoarthritis of the left acromioclavicular joint suffered by him on 21 July 2003, as follows:

· the respondent is liable to pay compensation to the applicant in accordance with s 16 of the SRC Act in respect of the cost of reasonable medical treatment obtained in relation to that injury;

· from 1 May 2004 to the present date, and as at the present date, the respondent is not liable to pay compensation to the applicant in accordance with s 19 of the SRC Act for incapacity for work.

The Tribunal orders, pursuant to s 67(8) of the SRC Act, that the costs of these proceedings incurred by the applicant be paid by the respondent.

......(Sgd S D Hotop)...................

Deputy President

CATCHWORDS

COMPENSATION – Commonwealth employees – applicant employed by respondent as Postal Transport Officer (PTO) – applicant suffered left shoulder injury in course of employment by respondent in July 2003 – applicant’s injury continues to result in impairment – applicant’s injury does not result in incapacity for work from May 2004 – respondent liable to pay compensation to applicant for reasonable medical expenses – respondent not liable to pay compensation to applicant for incapacity for work from May 2004 – reviewable decision set aside

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4(1), s 4(9), s 14, s 16 and s 19

REASONS FOR DECISION

4 May 2006	Deputy President S D Hotop
Introduction	Dr D Weerasooriya, Member

1.      On 1 August 2003 the applicant, who was employed by the respondent as a Postal Transport Officer (“PTO”), claimed compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) in respect of an injury to his left shoulder. In the claim form he stated that he had sustained that injury at approximately 5.30pm on 21 July 2003 “when lifting a heavy mail bag from its cradle in a street pillar box” in the course of his normal work duties.

2. On 10 September 2003 the respondent accepted liability under the SRC Act to pay compensation to the applicant in respect of an injury described as “(L) shoulder biceps tendon strain” sustained on 21 July 2003, and compensation payments were subsequently made to the applicant.

3. On 3 May 2004, however, the respondent determined that, as from 1 May 2004, the applicant had no further entitlement to compensation under the SRC Act in respect of the abovementioned injury because that injury “no longer result(ed) in incapacity for work or impairment”. That determination was affirmed by a “reviewable decision” made by the respondent under s 62 of the SRC Act on 1 June 2004.

4.      On 24 June 2004 the applicant applied to the Tribunal for a review of the abovementioned reviewable decision.

5. On 21 April 2005 the respondent, “on its own motion”, made a further decision under s 62 of the SRC Act varying its determination of 3 May 2004 by altering the description of the relevant injury to read as follows:

“Aggravation of pre-existing osteoarthritis of the left acromioclavicular joint”.

The Issues and the Tribunal’s Determination

6.      The issues to be determined by the Tribunal are:

·whether from 1 May 2004 to the present date, and as at the present date, the respondent continues to be liable under s 14 of the SRC Act to pay compensation to the applicant in respect of the left shoulder injury he sustained on 21 July 2003; and, if so

·whether such compensation comprises both compensation for reasonable medical treatment in accordance with s 16 of the SRC Act and compensation for incapacity for work in accordance with s 19 of the SRC Act.

7.      For the reasons which follow, the Tribunal has determined that:

· from 1 May 2004 to the present date, and as at the present date, the respondent continues to be liable under s 14 of the SRC Act to pay compensation to the applicant in respect of a left shoulder injury, namely, aggravation of pre-existing osteoarthritis of the left acromioclavicular joint; and that

· such compensation comprises only compensation for reasonable medical treatment in accordance with s 16 of the SRC Act, and does not include compensation for incapacity for work in accordance with s 19 of the SRC Act.

The Applicant’s Evidence

8.      The applicant, who was born on 17 April 1954, commenced employment with the respondent in 1998 on a part-time contract basis and he was made a permanent part-time employee in 1999. He worked the afternoon shift for at least 4 hours per day, 5 days per week. He was employed as a PTO in the respondent’s Transport Division at Perth Airport and his principal duties were driving motor vehicles, collecting, transporting and delivering mail, clearing street posting boxes, and loading and unloading mail conveyances.

9.      In his evidence-in-chief the applicant described the circumstances in which he sustained the relevant injury to his left shoulder on 21 July 2003 as follows:

“MR CRIDDLE: Mr Savage, I have a few questions for you in relation to what occurred on 21 July 2003. Can you tell the Tribunal what you were doing on the afternoon of that date, when you started work and the circumstances that led up to your suffering pain? --- Okay. I think it was a Monday and it was my first day back at work. I think my shift was starting at 3.30 for approximately 4 hours, I was working in a van the whole shift I recall, not a truck. I did approximately two hours work, collecting mail at various outlets and dropping it off and recollecting it and then as I was around West Perth clearing mail from one of the red boxes I injured my shoulder in the process of that collection.

All right. And how did you injure your shoulder? What were you doing at the time? --- I was – I unlocked the door on a red box and took the mail out in the bags, during that process I felt pain in my shoulder, in my left shoulder. I carried on, it was drizzling a little bit of rain, I was in a hurry. I split the mail from the heavy bags, they were very bags (sic), I split them into other bags. I tied them – I tied the bags up with a two man lift tag and placed the mail contents in the van and proceeded on.

…

And what happened with – what level of pain did you feel in your left shoulder? --- Probably moderate pain at that very instant. It was only sort of a couple of minutes later, I suppose the pain was increasing rapidly that then I realised I was in a bit of bother.” (Transcript, pp 17, 18)

The applicant said that he then contacted his employer by radio, reported the incident and requested instructions. He said that he then drove to the respondent’s Business Centre where the van was unloaded after which he drove himself to Royal Perth Hospital for treatment and he remained there for approximately 5 hours until after 11.00pm. He said that a doctor at the hospital certified him as unfit for work but that on the following day he consulted his general practitioner (Dr Mustapha) and a doctor nominated by the respondent (Dr Ong) who together agreed that he could return to work the next day (23 July 2003) on light duties, and he did so. He said that he remained at work on light duties until June 2004.

10.     The applicant described the pain he currently experiences in his left shoulder as follows:

“As far as my pain goes, I suppose if you use a one to 10 scale, just sitting here now it’s sort of like about a one, maybe half to a one, it’s constantly there but not very significant. If I start to move my shoulder, just around my elbow close to my body that’s sort of insignificant too, the pain doesn’t change much. If I move my shoulder further out I notice I drop my shoulder a little bit, the pain starts to go to a two maybe and then if I go further forward I can start to feel that more. Now, if I increase that action with any weight, even light weight, further out it might go to a two or three. Now, If I continue to do something more aggressive or – you know, what you’d call working then that aggravates it, the pain becomes more or less – sort of like a multiplying effect in which – and occasionally I’ll get stabbing pains which sort of hit the Richter scale about eight but generally they’re – that’s not that normal. So in general terms, if I don’t do a lot it’s not too bad, if I do a fair bit or start doing a bit more I’m on the pain killers and – well, I cope that way”. (Transcript, p 20)

11.     In cross-examination the applicant summarised his employment history prior to his employment by the respondent. He said that he worked full-time in the Royal Australian Air Force (“RAAF”) from January 1970 to July 1991, and he then worked as an aircraft fitter for 2 years. During the latter period, in 1992 he joined the RAAF Reserves and worked part-time (approximately 100 days per year) in the Reserves until 1999. In 1996 he commenced a lawn-mowing business (“AAA Better Lawncare”) and he performed lawn-mowing and associated work in that business until September/October 2005 when the business was sold.

12.     He confirmed that about 2 weeks after the abovementioned incident of 21 July 2003 (namely, on 7 August 2003) he was involved in an incident in which he tripped over the cat at his residence. His evidence in relation to the latter incident was as follows:

“I recall that from 21 July my injury gradually got worse as various doctors prodded it and over a period of that time, it was slowly getting worse.  Whether it was what I was doing at work or whether the doctors prodding it or - but I recall it was slowly getting worse.  Whether it was driving just to work or - I don't know but there was one particular incident where I tripped over the cat and as I went to support myself with my left arm, my - my shoulder really - was really sore.  It was during that - shortly after that I went and seen Dr Mustapha and he gave me time off.

All right.  Well, let me just ask you about precisely what happened.  You were at home when this occurred? ‑‑‑Yes.

And you fell onto your left outstretched hand?--- I - I don't recall whether I fell or whether I supported myself with my left arm, I don't know, but I did support myself with my left hand.

Yes.  Did you fall right to the floor? --- No, I don't think so, no.

Well what can you remember about the actual incident?--- I remember walking out the back and tripping over the cat and supporting myself with the left.  I - I don't know whether there was something there that stopped me or - or - but there was something anyway.

What time of the day did it happen, do you recall? --- I don't recall, no.

But you went straight to see Dr Mustapha, didn’t you?--- I can’t recall that either.

…

…what do you recall about what you told Dr Mustapha on that occasion?--- I - I don't recall actually.

Do you recall going to see Dr Mustapha on that occasion? --- No.

You don't.  You told us a moment ago that you did actually go and see him? --- I - I knew I would have had to have seen him because he give me some time off.

Right.  But you don't have any recollection of seeing him? --- No.

All right.  You can't tell us therefore whether you told him how you had injured yourself? --- No.” (Transcript, pp 24-25)

It was put to the applicant that Dr Mustapha’s clinical notes of a consultation with the applicant on 7 August 2003 made no mention of the applicant’s tripping over a cat at home, and that the applicant had failed to mention that incident to Dr Mustapha and had implied to Dr Mustapha that the shoulder pain he was experiencing at that time was solely related to the incident of 21 July 2003. The applicant rejected that proposition and added that he regarded the tripping over the cat as “a minor issue in amongst a sore shoulder” and “a progression of a sore shoulder getting worse”. (Transcript, pp 26, 29)

13.     It was put to the applicant that, according to invoices issued by him dated 9 August 2003, he had completed 5 lawn-mowing jobs on that day. The applicant initially did not accept that proposition on the basis that those invoices, although dated 9 August 2003, did not necessarily indicate that he did the lawn-mowing jobs on that date. When that proposition was pressed, however, he ultimately acknowledged that he did complete 5 lawn-mowing jobs on 9 August 2003. He added, however, that he “would have had assistance doing those jobs”. (Transcript, p 33)

14.     As regards such assistance, the applicant said that, after his injury of 21 July 2003, a neighbour helped him on about 3 occasions and that his son (presently aged 17 years) helped him “nearly all the time”. He later acknowledged that his son did not generally assist him on school days and that his son’s assistance was generally limited to weekends.

15.     The applicant confirmed that he had previously informed the respondent of his lawn-mowing business. The respondent tendered in evidence the following correspondence in connection with a compensation claim lodged by the applicant in 2002:

·a letter dated 4 July 2002 from the respondent’s Claims Manager to the applicant as follows:

“Thankyou for the declaration regarding your employment outside Australia Post.

To assist in the determination of your claim, could you answer the following questions.

1 – Please give a brief description of the types of duties involved with your business.

2 – How often do you perform the above duties?

3 – On average what is the amount of time spent on these duties?

4 – How many hours per week do you spend operating your Lawn-mowing and Gardening Service and could you break this down into a daily figure? Eg: Monday 3 hrs from 8.30am to 11.30am etc.

5 – What activities did you perform between the hours of 7.30pm Friday 14^th June 2002 & 3pm Monday 17^th June 2002.”; (Exhibit R5)

·a reply letter dated 8 July 2002 from the applicant to the respondent as follows:

“In reply to your recent letter with regards to my claim I have included answers to your questions in point form as asked.

1.  Lawn mowing of lawns including edging and whippy snipping.

2.  Variable, depending on the season. Ie winter is slow, some days nil.

3.  Most domestic lawns take about 1 hour per customer.

4.  Probably 10-20 hours per week depending on the season. Wintertime is  slow and some weeks I may only do a few hours.

5.  TV, domestic chores – washing, ironing, taxi service for the children. Monday morning- mowing of 2 lawns approximately during the hours of 9.30-11.30am on the 17 June 2002.” (Exhibit R6)

16.     The applicant also confirmed that he gave the following information regarding his lawn-mowing business activities to the respondent in early August 2003 in response to its queries:

·he is the sole owner of the business and he had been operating the business for 7 years;

·when he is busy, the son of a friend assists him;

·he does all the lifting of equipment off the trailer himself;

·he has a seasonal number of customers and he works before his afternoon shifts with Australia Post and on weekends when required.

He said that the abovementioned “son of a friend” is the neighbour who, he had said earlier in his evidence (see paragraph 14 above), had helped him. As regards the third abovementioned response, the applicant clarified it by saying that he does not lift the lawn mower on and off the trailer but rather rolls it on and off the trailer by means of a ramp.

17. The applicant was also referred to the documents lodged with the Tribunal by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (T1- T120, pp 1-247). He confirmed that he had written a letter dated 27 September 2003 to the respondent’s Claims Manager as follows:

“Further to our discussion on the 25 September 03 this letter is to advise you that I am currently self employed in addition to my part time employment with Australia Post. As previously discussed and advised I have a small lawn mowing business that I operate on a regular basis.

Due to my injury I am unable to fully operate this business and as such I have sort (sic) assistances in this matter. Obviously I am aware of the need to restrict my lawn mowing work to the current restrictions so as not to aggravate my injuries, hence I have employed assistance.” (T42)

The applicant also confirmed that the “assistance” referred to in that letter was the assistance provided by the neighbour on about 3 occasions, and the assistance provided by his son on weekends, referred to above (see paragraph 14).

18.     By letter dated 1 April 2004 (T83) the respondent provided the applicant with a copy of a report of Dr J Low, Occupational Physician, dated 31 March 2004 (see paragraph 57 below), in which reference was made to a surveillance videotape of the applicant performing lawn-mowing and associated activities, and invited him to comment. In response to a request by the applicant the respondent sent to him a copy of the relevant videotape under cover of a letter dated 20 April 2004 (T87). The applicant wrote to the respondent’s Claims Manager on 21 April 2004 as follows:

“Thankyou for a copy of the single surveillance tape, as requested, of my lawn mowing. This tape shows my lawn mowing on the 6^th, 9^th and 14^th of January 2004. I believe surveillance was carried out over some weeks.

Would you please confirm that this is the only tape made that you have sent me and that no other imagery exists. I believe I am entitled to any further information if it exists”. (T88)

The respondent, by letter dated 27 April 2004 (T90), gave the applicant the confirmation he had requested.

19.     The applicant confirmed that he wrote a letter dated 28 April 2004 (T92) in response to the respondent’s abovementioned letter of 1 April 2004. That letter refers, inter alia, to a report of Dr A Skirving, Orthopaedic Surgeon, dated 11 March 2004 (see paragraph 49 below) and continues:

“Dr Low’s Report (dated 31 March 2004)

I have not seen Dr Low since the November 2003 visit; some 5 months have past (sic) since. He has based this report on a small video footage of my lawn mowing. When I viewed this footage it would indicate that I am able to lift my left arm up to remove my earmuffs, hold a tailgate up vertical for a very short period and I can move my left arm backwards. You will note there is no significant weight applied to the left arm, in particular above shoulder height. I note that I lift the tail gate up using my right arm with the left arm used only for support. I noticed that my left elbow during the lawn mowing activities is close to my body which minimises my problem.

He states that during my visit on the 25 September 2003 I was not doing my lawn mowing work and utilising my son, this was true and now several months have past (sic) and quite obviously I am able to do more. The time between my injury and the video footage is some 6 months. My medical restrictions did not state ‘I was to do nothing’ but indicated a number of restrictions which I believe I have been observing. You will recall I have advised you verbally and in writing (twice) of my second job to support my limited part time employment with Australia Post. Over the past 5 or 6 years, I have combined my part time Post employment and my part time lawn mowing business into a day’s work, so to speak. During this period, I have applied for a number of full time positions but to date have been unsuccessful in gaining full time employment with Australia Post. I mention this to highlight the fact that I have not misled you in any way and I have been truthful. You have certainly been aware of my lawn mowing business.

In Dr Low’s opinion ‘he is wholly recovered from the medical condition that arose as a consequence of the incident which occurred on the 21 July 2003’ yet the exact position of soreness indicated to Dr Ong on the very next day of the injury still exists and still needs fixing. Dr Hogan and Dr Skirving both recommend surgery.

Lawn mowing

You will recall our meeting on the 25 September 2003 where we discussed compensation queries. During this meeting I asked you if it was illegal for me to carry out any lawn mowing activities while being on compo. You advised me that it was not illegal, and to be truthful, you did advise me that Australia Post may find that I may aggravate the injury.

I further advised you in writing, as requested by you, on 2 separate occasions of my lawn mowing. The first letter dated 27 September 2003 (2 days after our meeting on the 25 September 2003) stated that I had a small business and that to fully operate this business now, I had sought assistances in this matter. To maintain this business and to supplement my part time position with Australia Post I had to and still do employ my son and another man for that assistance when required. The majority of my lawn mowing activity is carried out on a Saturday. The video footage did not show activity on a Saturday.

With reference to my lawn mowing activity I make the following points for your consideration:

1.Large Roller Mower –

(a)Has a motor which drives the machine using a hand clutch, hence limited pushing or pulling.

(b)Has a split rear roller ie one half of the roller rolls forward the other half rolls rearward when turning, hence when turning little effort is required.

(c)The mower can be driven onto and rolled off the trailer with ease, contrary to the view or impression of lifting heavy lawn mowing equipment.

2.Whippy Snipper – is supported mainly with my right arm with the left arm used to manoeuvring the machine, hence little strain is placed on the shoulder. The weight of this machine, fully fuelled, is 5kgs.

3.Blower – as this machine is not very heavy you will note the operation is with the arm extended mostly down. I am able to operate this machine with my arm in the lower region hence using my bicep muscle. I do not lift this up past my shoulder height, mainly held in the vertical down position, minimising shoulder strain. I change arms regularly with this machine. The weight of this fully fuelled machine is 4.2kgs. Please note I have used my bathroom scales for checking the weights of items listed.

3.(sic)Grass Catcher – lifting of the grass catcher with the lawn clippings as is shown on the video is carried out using the right arm as the lifting force with the left arm being used for guidance and support only, hence putting little strain on the shoulder.

4.Trailer – the trailer’s construction and tailgate as can be seen on the video is well designed so that little effort is required in the operation of the equipment. I note in the video I lift the tailgate up using my right arm, when the obvious arm to use would have been my left arm.

5.Rotary Mower – self drive machine requiring little effort when mowing and steering.

The video footage is of me lawn mowing a small number of lawns. Over a 2 week period the total number of lawns mowed is 4. The video footage shows mowing activity in the morning hours on a Monday, Friday and then Wednesday the following week. I suggest that during this lengthy injury process I am able to do some lawn mowing activity and still remain within my medical restrictions. At that time my current medical progress report from Dr Mustapha dated 15 December 2003 indicated work restrictions of: no lifting anything heavier than 5 kgs, avoid repetitive bending/lifting, avoid repetitive use of affected body part.

Keeping in mind that over this lengthy period of time, since my injury, I have been able to increase my activity in regards to my lawn mowing as my shoulder has healed, so in other words when I have said I drive my son and he assists me, the degree of assistance has changed over time, just as when I said to Dr Low I had difficulty placing the washing onto the clothes line, this has changed also, yet I still find this task difficult. Similarly at present my task at Australia Post has been to stamp numbers on all keys at Transport section. The process requires me to use a hammer and punch and hammer these numbers onto the keys. Over 500 keys at present have been stamped to date, by myself, so as can be seen I am able to carry out some ‘heavier’ tasks both at my part time Post employment and my lawn mowing tasks to the best of my ability, still remaining within my restrictions, but unfortunately, I can still not do all tasks as Dr Low has suggested.

…” (original emphasis)

20.     Asked what restrictions he placed on his lawn-mowing activities following his shoulder injury on 21 July 2003, the applicant responded:

“Well, I – I recruited me son for the bulk of the work, basically”. (Transcript p105)

The applicant confirmed that his son helped him on Saturdays, but he added that his son also helped him on other days when he was “off school for whatever reason”, such as school holidays. The applicant acknowledged, however, that the days on which his lawn mowing and associated activities were videotaped – namely, 6, 9 and 14 January 2004 – fell within the summer school holiday period, but that his son was not assisting him in those activities. He was unable to explain his son’s absence on those occasions.

21.     The applicant said that the largest pieces of lawn-mowing equipment which he uses are 2 mowers, one of which is 28” wide, the other 26” wide. Each of them is self-propelled and has a split barrel. He acknowledged, however, that doing a 180° turn while using those mowers requires “some effort” and that that is the manoeuvre which he found “the most difficult” and which “hurt [him] the most” (Transcript, pp 115,116). The applicant was then referred to his letter dated 28 April 2004 (T92) to the respondent (set out in paragraph 19 above) in which he stated that, when turning his large roller mower, “little effort is required”. He acknowledged that, in that letter, he did not mention that the turning manoeuvre “hurt [him] the most”. When asked to explain, he responded:

“Perhaps I am not 100 per cent truthful there.” (Transcript, p116)

He agreed that, at the time he wrote the abovementioned letter, he was aware that the respondent was concerned about his lawn-mowing activities, and he confirmed that he had spent a good deal of effort trying to convince the respondent that his lawn-mowing activities were not a problem for him.

22.     The applicant said that, after his shoulder injury of 21 July 2003, his lawn-mowing activities did cause pain in his shoulder. He was referred to a report of Dr A Skirving dated 15 January 2004 (T68) in which Dr Skirving, referring to his clinical examination of the applicant on that date, stated (inter alia):

“He denies any pain in his shoulder associated with his lawn mowing”.

The applicant said that he had told Dr Skirving that his lawn mowing did not cause his shoulder injury, but he acknowledged that, if he had told Dr Skirving that his lawn-mowing activities did not cause any pain in his shoulder, “that would [have been] a lie”. (Transcript, p 125)

23.     The applicant, when asked to state which of his PTO duties he was unable to perform, said:

“I’m pretty … sure that I can’t do all the job because my shoulder hurts. I can certainly do a fair bit of it.” (Transcript, p 225)

As regards his ability to perform particular duties, his evidence was as follows:

·he could drive a van and, provided that he had no problem changing the gears, he could drive a truck;

·he could “probably” carry tubs of mail (weighing 20kgs) and place them on a bench, but he “would have a lot of difficulty” lifting them, with his arms extended away from his body, for the purpose of loading and unloading vans and containers;

·he would have difficulty removing heavy bags of mail from street posting boxes although, if he split a heavy bag into 2 lighter bags, adopted proper lifting techniques and kept his arms close to his body, he “could probably” do it.

24.     The applicant acknowledged that in June 2004, after he ceased being paid by the respondent (although still employed by the respondent), he successfully applied for a job as a hydraulic fitter with an engineering company, and he commenced that employment, on a full-time basis, on 22 June 2004. The applicant was referred to a bundle of documents comprising that company’s records of its employment of the applicant (Exhibit R12).

25.     He acknowledged that those employment records included a document entitled “Employee Work History” in which he set out his previous work history as follows:

·     AAA Betta Lawncare  4 years’ service

·     Perth Aerospace  2 years’ service

·     RAAF  30 years’ service.

He acknowledged that he had omitted to mention his employment by the respondent and explained that he “wanted to hide the fact that [he] worked for the [respondent]” and, in particular, he wanted to hide the fact of his shoulder injury.  The applicant also acknowledged that he had falsely indicated in that document that he did not “suffer from any back, neck, shoulder or knee complaint”, and that he had not lost any time from work “for illness or injury” in the past 3 years.

26.     The applicant further acknowledged that the abovementioned employment records included a medical questionnaire in which he had falsely answered “No” to the following questions:

·     Have you had time off work in the last year?

·     Have you a current Workers’ Compensation claim?

·     Have you had a Workers’ Compensation claim in the past or a work related injury or illness?

·     Have you any medical or surgical condition?

He acknowledged that he had also failed to indicate in that document that he had “any joint problems” and that he had difficulty with “lifting or bending” and “repetitive movements of the hands or arms”.

27.     The applicant also acknowledged that he had signed a declaration at the end of the abovementioned documents whereby he “solemnly declare[d] that each and every answer above is true to the best of [his] knowledge and belief”.  He agreed that those documents were “a tissue of lies”, and his cross-examination continued:

“Why should this Tribunal believe a word you say, Mr Savage, when you are prepared to fill in a form like this? --- I suppose it boils down to the circumstances that led me to do this.

So are you saying to the Tribunal that when you are under financial pressure, you are prepared to lie, is that what you are saying? --- All I am saying is, after the Post put me off, I had nowhere to go, I had no employment apart from a limited lawn mowing which I was struggling with and I was prepared to lie to get some sort of employment.” (Transcript, p 233)

28.     In re-examination the applicant explained that he decided to seek alternative employment after a meeting with Mr J Rolt, the Manager of the respondent’s Transport Division, in May 2004 in which he was informed that he could remain at work on restricted duties (but without compensation) for one further month after which he would be required to return to full duties. He reiterated that the reason that he deliberately gave false information in connection with his job application to the abovementioned engineering company was that he needed the job and that he was sure that if he disclosed his workers’ compensation injury he would not get the job.  He said that he worked for that engineering company for 4 weeks and that his employment was then terminated by the company because he was “not fast enough”.

The Evidence of the Medical Witnesses

Dr Mohammed Mustapha

29.     Dr Mustapha said that he has been practising in Australia as a general practitioner since 1977 and he confirmed that he has been seeing the applicant since October 1999 and treating him in relation to the left shoulder injury which he sustained in July 2003. He also confirmed that he had issued workers’ compensation progress medical certificates in relation to the applicant’s shoulder injury covering the period from 22 July 2003 to 30 May 2004 (contained in the T Documents) and the period from 30 July 2004 to 7 November 2005 (Exhibit A2). Most of those certificates indicate that the applicant was fit to return to work but with work restrictions – for example, the certificate issued on 30 April 2004 (T93) specified the following work restrictions:

·     no lifting anything heavier than 10 kgs;

·     unable to lift objects above shoulder height.

30.     Dr Mustapha said that he has seen the applicant since 7 November 2005 and that he “continues to complain of his left shoulder” and he continues to be “partially unfit for work”.

31.     Dr Mustapha confirmed that he attended a site visit arranged by the respondent for the purpose of seeing the activities required to be undertaken in performing the normal duties of a PTO, and that he subsequently wrote a letter, dated 23 December 2004, to the respondent as follows:

“Thank you for requesting me out to visit the work place recently with regards to Mr Jeffrey Savage.

Capabilities

All work offered to Mr Savage involves working with both arms and extending arms away from himself, during the process of lifting and packing.

Mr Savage is not capable to perform normal duties offered at work due to his left shoulder injuries.” (Exhibit A3)

In his oral evidence Dr Mustapha elaborated as follows:

“… Now, after you had made the visit could you tell the Tribunal what you observed during the course of the inspection that you carried out? --- During – during the course of the inspection, I was introduced to the various sites of work. Basically there was no demonstration as such with more explanation of how things are done. We did the duties of him taking the bags out of the letterbox and I found that that would be rather difficult for him regarding his shoulder – left shoulder especially because he had to lift it off the hook and he would probably succeed in doing one or two but as the day goes on, I doubt he would complete his task.

Are there any other parts of the job that you considered to be beyond him? --- Yes.  The bags which he collected from the letterbox he had to place them in the van and that involved climbing the steps and lifting the bags where they lifted up front or from the back, it meant lifting this heavy load from the ground level to the step level and then again from that to another step and eventually in the van. On entering into the van there was a place where he had to hook the bags and I found that that would be rather strenuous for his shoulder.

And did you form a view about his capacity to undertake that work at the time of the inspection? --- Yes.

And what was that? --- And have felt that he – he couldn’t do that particular tasks.”

(Transcript, pp 61-62)

32.     Dr Mustapha also confirmed that he had subsequently seen a surveillance videotape of the applicant engaged in lawn-mowing activities, and that he had prepared a report, dated 2 August 2005, addressed to the applicant’s solicitors, in relation to that videotape. In that report (Exhibit A4) Dr Mustapha compared the lawn-mowing activities shown on the videotape with the activities required to be undertaken in performing the normal duties of a PTO and generally expressed the opinion that the PTO duties of lifting and loading heavy mail bags (up to 40kgs), and pushing/pulling trolleys and pallet lifters, would have a much greater impact on the applicant’s injured shoulder than the lawn-mowing activities which, by comparison, appeared “trivial”.

33.     In cross-examination Dr Mustapha confirmed that the applicant first consulted him on 22 July 2003 in relation to his left shoulder injury sustained on 21 July 2003. He said that his diagnosis of the applicant’s injury at that time was rotator cuff tendonitis. He acknowledged, however, that an ultrasound of the applicant’s shoulder on that day showed no tendonitis. He then issued a progress medical certificate specifying restricted duties.

34.     Dr Mustapha confirmed that the applicant consulted him on 7 August 2003. He was referred to his clinical notes in respect of that consultation which recorded that the applicant’s “painful shoulder” was “not improving” and that he was to undergo an MRI. He confirmed that he did not recall the applicant stating on that occasion that he had tripped over the cat at home, and he agreed that, if the applicant had told him that, he would have recorded it in his notes. He agreed that the applicant had not mentioned an incident involving the cat on that occasion, and that the applicant gave him the impression that his painful shoulder was merely a continuation of the injury he sustained on 21 July 2003.

35.     Dr Mustapha said that he next saw the applicant on 12 August 2003 when the results of the MRI were available. The MRI report noted that there was acromioclavicular joint arthropy in the applicant’s left shoulder (T18).

36.     Dr Mustapha said that he first became aware of the applicant’s lawn-mowing round at a consultation by the applicant on 13 February 2004. He said that he did not inquire about the nature and extent of the applicant’s lawn-mowing activities and that the applicant merely told him that he had help from his son. He was referred to the surveillance videotape of the applicant’s lawn-mowing activities and he described the activities shown on the videotape as “light duties” and said that the applicant’s undertaking those activities did not give him any cause for concern.

37.     Dr Mustapha said that the applicant’s left shoulder condition, and the pain symptoms experienced in his shoulder, have remained unchanged since July 2003 when the relevant injury occurred, and he confirmed that, for that reason, the work restrictions which he specified in the progress medical certificates issued by him since that time have remained the same. He said that the major restriction is “the movements on abduction” and that the applicant was allowed to lift 5-10kgs of weight but he was not to do any heavy lifting above shoulder height, whether on abduction or extension. He agreed, however, that the applicant could engage in lifting provided that he kept his arms close to his body.

38.     Dr Mustapha was referred to several progress medical certificates regarding the applicant’s left shoulder issued by him which omitted to specify any work restrictions. He said that such omissions were errors on his part, and he reiterated that “the problem” for the applicant was lifting objects above shoulder height, either on abduction or extension.

39.     Finally, Dr Mustapha referred to an ultrasound report, dated 19 October 2005, regarding the applicant’s left shoulder. That report, which was tendered in evidence by the respondent (Exhibit R8), summarises the results of the ultrasound as follows:

“Summary:  There are features consistent with a mild left subacromial/subdeltoid bursitis, with possible arthritis at the AC joint which also appears tender on this examination. Injection with steroid and long acting local anaesthetic may be helpful. This procedure can be performed under ultrasound guidance.”

Dr Desmond Williams

40.     Dr Williams said that he has been practising as an orthopaedic surgeon since the mid-1970s. He said that he examined the applicant on 2 occasions in September 2004 and on 2 further occasions in June 2005. He prepared 4 reports at the request of the applicant’s solicitors and those reports were tendered in evidence.

41.     Dr Williams’ first report, dated 27 September 2004 (Exhibit A5), was prepared following his seeing the applicant on 16 and 22 September 2004. Dr Williams confirmed that his diagnosis of the applicant’s left shoulder condition is acromioclavicular joint arthritis pain exacerbated by the incident of 21 July 2003 in which he lifted a heavy mail bag from a street posting box. He expressly rejected diagnoses of “left shoulder biceps tendon strain” and “rotator cuff pathology”. The report summarises the applicant’s work restrictions and work capacity as follows:

“His restrictions will be with regard to left upper limb activities that involve heavy lifting and repetitive above shoulder activities. He will generally cope with activities at bench or desk level.

…

His work capacity at clinical review is that he will cope with lighter sedentary work activities at bench or desk level and his limitations will be with regard to heavy left upper limb activities of lifting, particularly with the arm extended away from the body and with above shoulder activities and repetitive left upper limb activities.”

42.     Dr Williams reviewed the applicant on 13 June 2005 and prepared a report dated 27 June 2005 (Exhibit A7). In that report Dr Williams refers to the applicant’s “current problems” as “pain at the top of his left shoulder” and notes that his “problems with the left shoulder acromioclavicular joint become evident when he lifts his arm with repetitive activities or heavy lifting activities”. The report goes on to note that:

“the acromioclavicular joint limits him with regard to repetitive upper limb activities and above-shoulder activities and heavy lifting activities and generally the acromioclavicular joint pathology will not interfere with activities below shoulder level.”

43.     Dr Williams prepared a further report dated 4 July 2005 (Exhibit A8) in response to a report prepared by Mr K Jones, Occupational Therapist, dated 8 June 2005 (Exhibit R17 – see paragraph 63 below). Dr Williams’ report summarises, and comments upon, the contents of Mr Jones’ report and concludes as follows:

“The report takes the position that, if there is adoption of safe operating procedures, on the balance of evidence the patient is fit for Postal Transport Officer duties, yet we know the patient has significant acromioclavicular joint osteoarthritic change and there is shoulder pathology and his current work practices create increasing pain in the shoulder.

…

It would appear that the pattern of safe work practice is in fact not used by all workers and would represent a need to adjust the current work practice to be quite limiting, constrained within the guidelines suggested, and whether this would meet practical work demands in the day to day situation has to be questioned.”

In his oral evidence Dr Williams elaborated on this issue as follows:

“… This is not someone I would send back to lifting post bags. I would have said desk or bench work.

All right? --- And if you want to go on the other path and send him back on lifting post boxes (sic), my question would be:  how long will he last? Will he last one month? Three months? Six months? Nine months? 12  months? He’s got a history of two accidents there already or incidents giving shoulder problem, so I think anyone who says he’s fit to go back had better answer the question: how long is he going to last there? And I don’t see him lasting there. This is advanced acromioclavicular joint arthritis. It is pre-existing. He will have another exacerbation and I would bet a dollar on that. And I would bet a dollar it would be under 12 months. So are we achieving anything by having a discussion about whether he goes back, because he will be back here in three moths, six months with a problem. The shoulder problem is not going away.” (Transcript, p 148)

44.     In cross-examination Dr Williams acknowledged that he had never visited an Australia Post workplace or delivery centre and that his understanding of the way in which PTOs clear mail from street posting boxes was based on his casual observation of such activity over a number of years. He confirmed that, on a number of occasions, he had seen postal officers open pillar boxes, take out the mail bags and throw them into a van, and he added:

“They generally did it quite rapidly … slammed the door and jumped in the vehicle, they were always in a hurry.” (Transcript, p 155)

He said that he had seen inside pillar boxes when they were being cleared and he described the process whereby the mail bag is taken out of the pillar box. He said that the bag is raised on hooks inside the pillar box and the postal officer unhooks the bag and pulls it out of the box and lifts it into the vehicle. He added that “some of them lift and throw”. He acknowledged, however, that he had never seen the process whereby the contents of a mail bag are “split”.

45.     Dr Williams said that the applicant had told him in the initial consultation on 16 September 2004 about his lawn-mowing activities and the videotape of him undertaking such activities. He also referred to his notes of the consultation of 13 June 2005 in which he recorded that the applicant was:

“currently mowing six lawns per week in houses and one hospital ground lawn per month with the assistance of his son”.

It was put to Dr Williams that the applicant, at other times of the year, was mowing up to 6 or 7 lawns per day, and he responded that he would have been surprised by that because the applicant had “significant acromioclavicular joint arthritis” and “a history of shoulder troubles”, and “six [lawns] a day is a fair number” (Transcript, p 164). He said that his impression was that the applicant was doing “a limited amount of mowing” with the help of his son. Asked whether he had viewed the videotape of the applicant performing lawn-mowing and associated activities, Dr Williams said that, although it had been given to him a few days earlier, he had been suffering from a flu virus and had not yet viewed the videotape.

Dr Allan Skirving

46.     Dr Skirving is a Consultant Orthopaedic Surgeon and Clinical Associate Professor and Head of the Department of Orthopaedics at Royal Perth Hospital. He said that, for the last 10-15 years, his orthopaedic sub-specialty has been shoulder and elbow surgery and that 60%-70% of his practice is devoted to shoulder surgery.

47.     Dr Skirving confirmed that had prepared 3 reports concerning the applicant at the request of the respondent or its solicitors.

48.     Dr Skirving’s first report, dated 15 January 2004, was prepared following a clinical assessment of the applicant on that date. That report states as follows:

“…

History of Present Condition:

Mr Savage is 49 years of age and has worked with Australia Post for some 5 years in the Transport Department.

Whilst working on the 21.7.03 at 1730 hours he was lifting a double bag which was filled with mail from a pillar box when he experienced pain in his left non-dominant shoulder.

The pain worsened over the next few minutes such that when he arrived at the next station his shoulder was very painful and he had to contact his office, inform them of the incident. He was instructed to return the mail and then went to Royal Perth Hospital where he was seen, examined and x-rays of his left shoulder taken. He then went to see his own general practitioner Dr M Mustapha who confirmed the shoulder injury but suspected that he may have had a rotator cuff injury and arranged for him to have an ultrasound of the shoulder. He was allowed to return to work in a restricted fashion with a lifting limit of 7.5kgs.

He was subsequently referred to Dr Walter Ong at Carepoint, Malaga and also seen by Dr J Low.  An MRI scan was performed at that time. He was subsequently referred to Dr Greg Hogan, Orthopaedic Surgeon who saw him on the 9 September 2003. At that time there was mild tenderness over the rotator cuff insertion and his impingement tests were positive for rotator cuff tendonopathy.

Dr Hogan also arranged for him to have an injection into his subacromial space as a diagnostic procedure to try and establish whether his pain was arising from the rotator cuff but Mr Savage did not have a response to this injection. Indeed he states that it made his pain worse. Mr Savage had previously had an injection into his acromio-clavicular joint which had produced an improvement in his symptoms for a period of 2 weeks and 2 days.

Overall, following the negative response to the injection Mr Hogan determined that Mr Savage’s symptoms were likely to be mostly due to acromio-clavicular joint degeneration and recommended an acromio-clavicular joint resection, ie excision of the distal end of the clavicle. I understand that this was booked to be performed some time ago but was not proceeded with.

15 January 2004

Mr Savage informs me that he is still working in a light duties capacity some 4 hours, 5 days per week. This is essentially clerical work although on occasions he still drives either the truck or the pillar vehicle.

Previously he worked 20 hours per week as his basic employment agreement but did work on occasions up to 40 hours per week.

Previous Medical History:

He states that about one year ago he did have a short term problem with his left shoulder which he describes as being a pulled muscle although a diagnosis of a biceps tendon tear was also made. I have no details of this injury. Mr Savage informs me that it settled down after a short period of time. He was on light duties for a period of some 6 weeks but then returned to his normal work and has not been troubled with his shoulder until the present incident.

Mr Savage also informs me that for some years he has had a part time lawn mowing business which he runs himself and this includes the manual aspects of the job ie loading and unloading the lawn mowers and doing the physical part of the job. He sometimes has assistance from his son and currently his son does most of the physical work. He denies any pain in his shoulder associated with his lawn mowing. The one week prior to his accident he was away from work helping family removals and again he states that he did not stress or strain or injure his joint during these activities.

15 January 2004

Mr Savage states that his symptoms continue, are quite severe and would prevent him from returning to his previous work. He is not now having any physiotherapy. Previously he had 15 sessions without significant improvement. He takes occasional Naprosyn and Digesic medication now for pain.

On examination:

Mr Savage presented his story in a straight forward fashion without any obvious exaggeration or embellishment of his symptoms. He is a fit looking man albeit a little overweight. There is no obvious muscle wasting around his left non-dominant shoulder. There is some tenderness on palpation of the acromio-clavicular joint. There is no tenderness over the insertion of the supraspinatus tendon except with very firm pressure. There is perhaps a little tenderness on palpation of biceps and he has a positive Speed’s test. His movements are performed a little tentatively but he has full elevation and abduction without any associated crepitus and with no distinct painful arc. His pain and discomfort seem to increase as he reaches full elevation. External rotation is certainly unrestricted and indeed there seems to be slightly excessive external rotation on the left side suggestive of a possible subscapularis tear.

He can internally rotate almost fully but can only just elevate his arm from his back and finds this uncomfortable. Power of external rotation is intact.

I reviewed his imaging package. X-rays taken at Royal Perth Hospital on the day of injury confirm well established degenerative change in the acromio-clavicular joint which clearly preceded the onset of pain following this incident.

In addition, the MRI scan confirms the degenerative state of the acromio-clavicular joint and also demonstrates that the shoulder is angry and probably currently symptomatic. There is no overt rotator cuff pathology.

As a result of this consultation had it been performed for clinical purposes only my diagnosis is of acromio-clavicular joint degeneration. This diagnosis would conform with his history, clinical features and investigation and findings.

The response to an acromio-clavicular joint injection also tends to confirm this diagnosis

...” (T68)

49.     Dr Skirving’s second report, dated 11 March 2004, was prepared in response to a letter from the respondent, dated 29 January 2004, enclosing a surveillance videotape for his viewing and requesting his response to the following questions:

“1.       What were the activities observed on the surveillance footage?

2.Are the activities undertaken by the subject on surveillance footage consistent/inconsistent with examination findings and the physical and functional limitations reported by Mr Savage?

3.After viewing the surveillance footage, do you regard Mr Savage as a reliable historian?

4.After considering the surveillance footage, are you now of the opinion that Mr Savage does not require any medical treatment, including corrective surgery to his left shoulder?

5.Given the activity Mr Savage has undertaken throughout the duration of the surveillance footage, is it now reasonable to expect he is fit to continue in his pre-injury duties as a Transport Officer?

6.Given the activity demonstrated by Mr Savage in the surveillance footage, is it likely that degenerative changes observed on medical investigations were only incidental findings unrelated to Mr Savage’s work injury as initially suspected by Dr John Low in his report dated 9 September 2003?

7.Alternatively, was the condition symptomatic prior to the incident at Australia Post on 21 July 2003 and has this condition now returned to that status?

8.Has Mr Savage wholly recovered from the medical condition that arose as a consequence of the incident that occurred on 21 July 2003 when he attempted to lift a mail bag from a street pillar box?” (T71)

Dr Skirving’s report states as follows:

“…

At your request I reviewed a surveillance film taken on Mr Savage during the first 2 weeks of January 2004 ie almost exactly at the time when I saw him in my office on the 15 January 2004.

I am able to confirm the identity of the subject of the surveillance film as being the Mr Savage who attended my orthopaedic clinic and who was the subject of a report to you dated the 15 January 2004.

In the surveillance film Mr Savage is seen working in his part time lawn mowing business which he described to me during the consultation. The film seen is dated on three occasions, 6.1.04, 9.1.04 and the 14.1.04. On these dates Mr Savage is seen to be performing his job entirely on his own and doing all components, ie he is seen to drive his car and trailer, load and off load heavy lawn mowing equipment. He is noted also to use the heavy but motored lawn mower as well as using a whipper snipper and a vacuum. He is seen to use his left arm as much as his right and he is noted to lift his shoulder to 90 degrees but he is not seen to work repetitively or strenuously using his left shoulder above shoulder height. Nevertheless, he is noted to perform all his jobs without any obvious discomfort or restriction of function.

In particular, he is noted to be working alone and when seen on the 15.1.04 he stated that he was usually helped by his son who did most of the heavy physical work.

I trust that you would have sent me any other film which demonstrated Mr Savage being helped by his son.

As a result [of] reviewing this surveillance film I would confirm the opinion expressed in my report of the 15.1.04 that there is no urgency in respect of any surgical procedure on his shoulder. This should not however be interpreted as meaning that he does not have a pain generating condition as has been suggested by his degenerate acromio-clavicular joint. It does however make it exceedingly difficult to explain his ability to continue with his lawn mowing business, including all the physical components and yet be unable to return to his normal work with Australia Post.

I shall now attempt to answer the questions you pose in your letter of the 14 January 2004 where not dealt with in the main body of this report.

1.        As stated.

2.There were very few abnormal clinical features on clinical examination of Mr Savage’s shoulder. Mr Savage simply states that he has significant pain in the shoulder and such pain appears to be emanating from the acromio-clavicular joint which joint has been demonstrated of (sic) radiology to be the site of degeneration. It is not possible in any way to determine the severity of the pain that he states he is experiencing. However, the activities on surveillance film would be expected to aggravate any significant shoulder problem, including acromio-clavicular joint degeneration or rotator cuff impingement. Such is not demonstrated and for this reason I believe that if Mr Savage continued to perform his lawn mowing business as demonstrated on the surveillance film then he is also fit enough to return to his work with Australia Post.

3.During my consultation, Mr Savage stated that he was continuing to do his work in the lawn mowing business but stated that his son did most of the physical work. If these three days are clearly representative and Mr Savage is not helped on a regular basis by his son, then the history as given to me would appear to be false.

4.As stated, Mr Savage has a problem with his acromio-clavicular joint. Whether he has or does not have surgery would depend on the severity of his symptoms. Mr Savage has I understand, as stated, (sic) that his symptoms are severe enough to merit intervention. Having witnessed the surveillance film I suspect that many orthopaedic surgeons, including myself, would doubt that his symptoms are severe enough to merit surgical intervention.

5.Yes.

6.Not necessarily. The degenerative acromio-clavicular joint disease almost certainly preceded the injury and was certainly not caused by that injury. Nevertheless, it could have been aggravated by the described work injury. There are a number of factors which do suggest that his acromio-clavicular joint is the source of his symptoms, ie clinical features indicating localised tenderness over the acromio-clavicular joint, MRI findings showing oedema of the joint indicating an angry and inflamed joint, his response of 2-3 weeks following an injection into the acromio-clavicular joint but not into the subacromial space.

7.I can only base my conclusions on the stated history and available reports. Mr Savage did inform me of a previous problem with his shoulder which was only short term about one year prior to his current problem. I have no details as to that injury and I can only accept Mr Savage’s information that his shoulder settled down after a short period of time and that he had not been troubled with this shoulder prior to this present incident.

8.Mr Savage continues to complain of pain and there are on investigations evidence to suggest where his pain is arising from. Whether this is all the result of the specific incident of the 21.7.03 I cannot state with any certainty and nor can anybody else. We can only accept the history as given by the patient. However, clearly again, as stated in my previous report, the incident when he attempted to lift a mail bag from a street pillar box would appear to be minor and not regarded as being sufficient to cause severe long standing structural problems. It was certainly not the cause of his degenerative acromio-clavicular joint.

…” (T78)

50.     Dr Skirving’s third report, dated 24 March 2005, states as follows:

“…

I would confirm that I have not seen this man since the 15.1.04.

1.Whether it is likely that Mr Savage injured his biceps tendon on 21.7.03, and if so, the nature of this injury?

The nature of the incident causing the onset of pain was one which would suggest a possible soft tissue injury, almost certainly to either the rotator cuff tendons or the long head of biceps tendon. I note however that x-rays performed soon after the incident also demonstrated pre-existing significant degenerative changes in the acromioclavicular joint. The clinical diagnosis remained a soft tissue injury and a MRI scan performed on the 11.8.03 did show some synovial proliferation and fluid around the long head of biceps tendon sheath but without any evidence of a tendonopathy of the biceps tendon and certainly no evidence of any tear of the biceps tendon.

During my clinical assessment and reviewing a surveillance film of his activities it seems highly unlikely that pathology of his biceps tendon remains significant and certainly is highly unlikely to be a cause of any disability such that he is unable to work.

2.Whether it is likely that Mr Savage injured his acromioclavicular joint on the 21.7.03, and if so, the nature of this injury?

The nature of the incident causing the onset of pain is highly unlikely to have caused an injury to the acromioclavicular joint. X-rays taken soon after the accident confirmed pre-existing osteoarthritis at the acromioclavicular joint although this was apparently, asymptomatic. It is possible that the activities which caused the onset of his pain did aggravate his acromioclavicular joint and that this has been the cause of his subsequent symptoms. Certainly this is the opinion expressed by his treating orthopaedic surgeon Dr Greg Hogan. However, the activities demonstrated on the surveillance film again would tend to suggest that even though he has a degenerate acromioclavicular joint it is not causing sufficient symptoms such that he requires any urgent surgery and would also suggest that this would not impede his possible return to work. Certainly the surveillance film confirms very clearly that he is able to perform the heavy aspects of his second job which is that of a lawn mower contractor.

In summary, it is difficult to be certain as to what specific structural damage was done to Mr Savage’s shoulder on the 21 July 2003. On balance it would seem likely that he has caused an aggravation of his pre-existing osteoarthritis of the shoulder. Clinical evidence and surveillance film evidence would suggest however that that aggravation has now settled to the extent that he is able to perform quite heavy  manual work and as such it is difficult to explain why he could not return to his job as a Postal Worker.

…” (Exhibit R11)

51.     Dr Skirving’s oral evidence, both in chief and in cross-examination, generally reiterated the substance of his abovementioned reports, and it is unnecessary to summarise it here.

52.     In response to a question from the Tribunal, Dr Skirving confirmed that it was his opinion, based on the lawn-mowing and related activities which the applicant was shown on the relevant surveillance videotape to be performing, that the applicant has the capacity to return to his job as a postal worker on unrestricted duties.

Dr John Low

53.     Dr Low, Consultant Occupational Physician, confirmed that he had, at the request of the respondent, prepared various reports regarding the applicant.

54.     Dr Low first examined the applicant on 5 August 2003 at the request of the respondent following the shoulder injury which he sustained on 21 July 2003. He subsequently prepared a report dated 9 September 2003 (T30) based on that examination. The report sets out the information provided to Dr Low by the applicant regarding his general activities and the circumstances of the shoulder injury sustained on 21 July 2003, and summarises Dr Low’s examination findings. The report refers to the applicant’s lawn-mowing activities as follows:

“Mr Savage stated that he had his own small lawn mowing business. He stated that at this time of the year, he had six lawns to cut per week. He stated that in summer, he cut more than 12 lawns per week.”

Dr Low concluded that his clinical findings were “consistent with a left shoulder biceps tendon strain”, although he noted that this did not correlate with the findings on an MRI scan. As regards the cause of the applicant’s condition, Dr Low stated:

“From the information provided so far, it would appear that unhooking a heavy pillar bag was the most likely cause...”

55.     Dr Low next assessed the applicant on 25 September 2003 and he prepared a report dated 16 October 2003 (T46). The report sets out the information provided by the applicant, including:

“He stated that on 7 August 2003, he took approximately two weeks away from work as a result of aggravating his left shoulder after he tripped at home. He stated that the left shoulder soreness was progressively increasing anyway.

...

... He stated that he was now not doing his second job as a lawn-mowing contractor. He stated that he continued to drive his son to the jobs and his son was actually carrying out the physical activity.”

The report then sets out the examination findings and concludes:

“Given the difference between the current clinical findings and the findings on the initial assessment in August 2003, I am unable to provide a specific diagnosis for his current left shoulder symptoms.

After considering the mechanism of the injury reported, the forces likely to be involved, interventions undertaken to date, time of relative rest away from left shoulder activity, the MRI findings and the differences in examination findings comparing the two assessments, it is my opinion that Mr Savage’s current condition is unrelated to his employment at Australia Post.”

56.     Dr Low next assessed the applicant on 27 November 2003 and he prepared a report dated 10 December 2003 (T64) which concluded:

“I can see no physical reason as to why Mr Savage would not be able to maintain work on a full time basis doing bio-mechanically suitable alternative duties.

It is my opinion that he requires the following restrictions to remain safely at work:

·Maximum weight of occasional lifting of 5 kilograms (close to body and not above chest height).

·No reaching outwards, across body, forwards or above chest height using the left upper limb.

·Minimise driving duties.

·No pushing or pulling activities.

Work within the above restrictions poses little bio-mechanical demand on the left shoulder.

...”

57.     Dr Low also prepared a report dated 31 March 2004 (T82) following his viewing of a surveillance videotape of the applicant. That report relevantly states:

“...

Observations from Video Surveillance:

The video surveillance footage covered 6 January 2004, 9 January 2004 and 14 January 2004.

The subject demonstrated the following activities on the footage:

·Pushing and operating a lawn edger.

·Lifting, carrying and operating a long whipper snipper in a sustained manner, using both hands. He was seen to be guiding the machine with his left arm across his body.

·Operating a large lawn mowing machine including pushing, pulling and manoeuvring the machine over lawn and up a ramp.

·Lifting, carrying and operating a blower solely with his left hand.

·Reaching above head height with both hands without restriction to take off his ear muffs.

·Reaching above head height with his left arm to push the gate of a trailer shut.

·Reaching behind his shorts with his left hand.

·Driving a vehicle towing a trailer.

·Lifting, tipping, lowering and fitting on a grass catcher.

·On the 9^th January 2004 footage, I noted a sudden pulling action with his left hand (partially obscured by trailer). The activities around that time lead me to believe that he was pulling the starting cord of the edger with his left hand.

·Losing control of the edger and righting it before continuing with the edging activity.

Summary of Observations:

The video surveillance showed the subject carrying out normal activities involved in operating a small lawn mowing business. He was not seeming to favour his left upper limb but instead used it freely. He was able to manoeuvre the lawn mowing equipment and tolerate sustained vibration and jarring forces. These activities pose significant bio-mechanical demand on both shoulders which did not appear to have any adverse effect on the subject.

The activities demonstrated by the subject on the video surveillance is in contrast to the report by Mr Savage on 25 September 2003; he stated that he was now not doing his second job as a lawn mowing contractor. He stated that he continued to drive his son to the jobs and his son was actually carrying out the physical activity. This is inconsistent with observations on the video surveillance footage which showed the subject carrying out lawn mowing activities unaccompanied.

In relation to your specific questions:

...

2.Are the activities undertaken by Mr Savage on surveillance footage consistent/inconsistent with initial and subsequent examination findings and the physical and functional limitations reported by Mr Savage?

As indicated above in the body of this report, the activities undertaken by the subject on the video surveillance footage is inconsistent with the reports of functional incapacity described by Mr Savage.

...

5.Given the activity Mr Savage has undertaken throughout the duration of the surveillance footage, are you of the same opinion as Dr Skirving that it is reasonable to expect that Mr Savage is fit to continue in his pre-injury duties as a Transport Officer?

Give the activities observed on the video surveillance footage, I believe that it is reasonable to expect Mr Savage to continue with his pre-injury duties as a Transport Officer on an unrestricted basis.

...

8.Are you still of the view that Mr Savage has wholly recovered from the medical condition that arose as a consequence of the incident that occurred on 21 July 2003 when he attempted to lift a mail bag from a street pillar box?

As indicated in my second report, it is my opinion that Mr Savage’s current condition is unrelated to his employment at Australia Post. As such, it is my opinion that he is wholly recovered from the medical condition that arose as a consequence of the incident which occurred on 21 July 2003.

...”

58.     Dr Low prepared a “file note” dated 27 May 2005 (Exhibit R14) following a further assessment of the applicant on 26 May 2005 at the request of the respondent’s solicitors. That file note sets out the information provided by the applicant regarding his progress since the previous assessment on 27 November 2003 and continues:

“Current Symptoms

Mr Savage stated that there was no improvement in his shoulder condition. He stated that the shoulder had not improved since the injury.

He described pain on the superior aspect of the left shoulder (indicated around the prominent AC joint). He stated that he experienced minimal pain when not using his left arm. He stated that the pain was worse with lifting away from his body, with shoulder abduction, and when raising his arm above head height and “right at the top”.

He stated that he could sleep on his left side but was unable to sustain this position.

He stated that he experienced occasional stabbing pain in the left shoulder. This was more noticeable when his left shoulder was aggravated such as after raking leaves or mowing lawns and the pain may persist for variable intervals. He stated that the pain may last up to one month.

He stated that he was favouring his left side.

Current Function

Mr Savage stated that he was currently not at work. He stated that he was spending his days doing the taxi course (which had been completed), lawn mowing, doing domestic chores such as washing, ironing, taking his children to the football, school etc. He stated that he was doing maintenance around the house such as painting, sweeping and vacuuming.

He stated that he had difficulty carrying or lifting away from his body but continued with his full household activities with some modifications for example standing on a platform to hang out his clothes, using his right hand etc.

He stated that his most physical activity undertaken over the past month was mowing his lawn.”

The file note then sets out the examination findings and concludes:

“Assessment

Mr Savage’s presentation today is consistent with left acromioclavicular joint pathology. He has known degenerative change in the area. His condition has not improved since the last assessment.”

59.     In cross-examination Dr Low confirmed that he believed that his original diagnosis of the applicant’s left shoulder condition, namely, biceps tendon strain, was correct, and that he disagreed with Dr Williams’ diagnosis of an aggravation of pre-existing acromioclavicular joint pathology. Dr Low acknowledged, however, that he now accepted that the applicant has acromioclavicular joint pathology in his left shoulder, but he did not accept that the applicant’s work-related incident on 21 July 2003 had aggravated that pathology. He confirmed that he disagreed with the opinions of Dr Williams and Dr Skirving in that regard.

60.     In relation to the abovementioned surveillance videotape, Dr Low gave the following evidence:

“Dr Low, you have given evidence of having seen the video of Mr Savage’s activities in his lawn-mowing round and you have said that your conclusion was that it was inconsistent with the reports of function and capacity described by Mr Savage. I think that was your evidence. Which of the activities which were demonstrated on video did you consider were inconsistent with alleged function and capacity, and why?---Well, Mr Savage advised me that he was very incapacitated. He was not doing very much on alternative duties at work by his own accounts. And he was not able to sustain six hours at work and had to reduce his work hours to four hours a day. And that was basically doing very little, according to Mr Savage, in my report and what was conveyed to me. And then I saw him undertaking essentially full lawn-mowing duties without favour to the left upper limb. And to me that is inconsistent. And he was doing, you know, moderate to – you know, moderately physical activity and – outside of his work but he couldn’t sustain six hours at work doing nothing. So, that is inconsistent to me.

Right?---Yes.

So, what part of the lawn-mowing activities do you say were inconsistent?---Well, because he presented as being so incapacitated, not being able to stay at work doing very light duties. All of it. Because he was pushing a lawn-mower, pushing an edger, blowing the lawn, using a whipper snipper, driving a car, loading the equipment back on to his vehicle, pouring petrol into the equipment. That all seems to be a lot more physical than doing not very much at work.

Yes. Certainly if the comparison is with doing nothing is doing something. What I am asking you is what parts of the video do you say are inconsistent with the condition from which he was suffering- - - ? ---I didn’t say that.

- - - apart - - - ?---No, no, I didn’t say that. I said that it was inconsistent with what he has told me.

Okay?---The activities undertaken by the subject on the video surveillance footage is inconsistent with the report of functional incapacity described by Mr Savage. I did not say it was inconsistent with his condition.

...

So you are saying the inconsistency is in what he said he can and can’t do rather than an inconsistency with the condition?---Correct.”  (Transcript, pp 294-295)

The Evidence of Kerry Jones

61.     Mr Jones, Occupational Therapist, completed a university degree course in occupational therapy in 1977 and subsequently completed postgraduate diploma courses in health science education (1984) and occupational health and safety (2004). His work history includes appointments as an occupational therapist at Royal Perth Hospital (1977-81) and Queen Elizabeth II Medical Centre (1982-84), and as Manager, Occupational Health and Safety, Education Department (WA) (1985-87) before establishing a private practice in 1987 in which he has been practising ever since. He has, since 1980, held various professional appointments in the field of occupational therapy, including the following:

·   President of OT Australia (WA) since 2004;

·   Member of the Advisory Board, School of Occupational Therapy, Curtin University since 1994;

·   Member of the Occupational Therapy Registration Board of Western Australia 1996-2004.

A copy of Mr Jones’ curriculum vitae was in evidence (Exhibit R18).

62.     Mr Jones confirmed that he had, at the request of the respondent’s solicitors, prepared a report dated 8 June 2005 for the purpose of the present proceedings. He described the process whereby he prepared that report as follows:

“I reviewed the medical and radiological reports that were summarised on page 2 of my report. With that background knowledge, I then undertook a work-site assessment. This was at the Australia Post transport section located at 407 Boud Avenue, Perth Airport and this was conducted on 31 May 2005 in the presence of Christine Robinson who is the Safety and Training Officer for Australia Post in that location. That assessment took three hours to complete. It entailed a review of the plaintiff’s background, by way of report from Ms Robinson, her – her awareness of the facts. Secondly, a review of the work environment which entailed inspection of the ... PTO vans and including trucks. It entailed travel out off-site, around various locations, looking at delivery box access issues and the process involved for the PTOs to actually handle mailbags and place the like into – into the vans themselves, something I’m quite familiar with in the past but this was a reinforcement to make sure that I was up to date on any likely change in work practice. We then returned from that and we undertook an inspection of the area where returns are broken down into the delivery crates, ... ULDs they’re referred to as, and these storage crates are the bulk handling crates that are ultimately loaded to flat tray trucks for transport to the various distribution locations. So we had a look at the work processes that were involved in unloading from the vans to those crates and what that entailed in terms of manual handling. Following that, I undertook a review of the surveillance video that was provided dated 3 June 2005 concerning the plaintiff, Mr Jeffrey Savage, and the dates of that surveillance video were recorded as 6 January ’04, 9 January ’04 and 14 January ’04. On the basis of all those observations and insights gained I then carried out an analysis according to the questions that were put to me and provided a report to you that is the report of 8 June 2005.” (Transcript, pp 316-317)

63.     Mr Jones’ report of 8 June 2005 (Exhibit R17) lists the medical reports and other documents reviewed by him, summarises the history of the applicant’s work-related shoulder injury sustained on 21 July 2003 as reflected in those medical reports, and continues:

“Functional Observations

Within the context of my prior remarks I have undertaken a review of the surveillance video referred to above. My summary of activity/ functional observations on Mr Savage’s engagement in lawn mowing activity over the dates recorded is as follows.

DATE:	6 January 2004
TIME:	OBSERVATION
9.29am	Pushing edger up ramp with hand to eye height
9.29am	Leaning/stooping over whipper snipper at ground level, gravity assisted position, left arm spontaneously operated in position equivalent to shoulder height due to stoop posture rather than bending from knees
9.30am	Bilateral holding of whipper snipper without limitation
9.32am	Edging with whipper snipper with left arm leading away from body
9.42am	Mowing with yellow roller mower, conducts left hand turn with left arm operated without restriction in abducted position from body
9.44am	Performs bilateral compression on mower handle to elevate front roller of mower over edge of lawn
9.49am	Spontaneously load reel mower up ramp onto trailer and chocks roller using left hand/ arm at equivalent shoulder height position from a stooping position
9.50am	Commences left hand blower vacuuming
9.55am	Spontaneous refuels whipper snipper incorporating left hand/ arm
9.56am	Spontaneous extends left arm to load whipper snipper and raises tailgate bilaterally at head height. Removes ear muffs spontaneously
DATE:	9 January 2004
TIME:	OBSERVATION
8.15am	Empties mower catcher using bilateral technique at shoulder height
8.16am	Loads mower to trailer and spontaneously reaches forward with left hand to possibly turn off mower
8.16am	Spontaneously reaches from behind edger handle to edger motor
8.19am	Bilateral positioning of edger on curb
8.23am	Spontaneously bilaterally pushes edger up on trailer with hands to eye height
8.35am	Utilises blower in left hand only
8.41am	Closes tail gate of trailer at head height with predominant reliance on left hand to lift and position tailgate. Abducts left arm full range in internal rotation to place items to pocket
DATE:	14 January 2004
TIME:	OBSERVATION
7.34am	Manually pushing rotary mower in sandy/grassy verge soil
7.35am	Pushes rotary mower into full bilateral arm extension and completes turn around with left arm in abduction
8.02am	Spontaneously bends over to reach with left hand to motor of mower.

She confirmed that she had read Mr Jones’ report (Exhibit R17) and said that, in her opinion, Mr Jones’ recommendations were “very practical and ... very do-able”.

James Rolt

69.     Mr Rolt confirmed that he had made a witness statement, dated 8 September 2005, for the purpose of these proceedings and that its contents are true and correct. The contents of that statement (Exhibit R19) are as follows:

“1        I have been employed with Australia Post for approximately 25 years.

2I am currently employed as the Manager of Australia Post’s Transport Division which is located at Boud Avenue, Perth Airport. I have been in this position for approximately 7 years apart for a period of approximately 12 months during 2003 when I was performing another job role.

3My job at Australia Post requires me to be responsible for the day to day operations of the Transport Division.

4Mr Savage is employed as part time Postal Transport Officer (PTO), with his nominal position requiring him to work a minimum of 4 hours per day or 20 hours per week. Mr Savage’s normal hours of duty are worked in the afternoon and this is regarded as the critical time of the day for mail collection.

5I am aware that Mr Savage lodged a claim for compensation on or around July or August 2003 regarding an injury to his left shoulder.

6On 14 June 2004, at my direction and in accordance with Australia Post’s ‘Non-Work Related Medical Restrictions Policy’ Mr Savage commenced sick leave. He has remained on sick leave since 14 June 2004.

7Between September and October 2004, I made numerous attempts to invite Dr M Mustapha who is Mr Savage’s treating doctor, to visit the worksite to gain an understanding of Mr Savage’s job role and to assist him in making an assessment as to whether Mr Savage was capable of performing his normal duties as a PTO. Dr Mustapha did not return my telephone calls.

8In early December 2004, arrangements were eventually made with Dr Mustapha to visit the worksite to review the duties of a PTO. This happened on or around mid December 2004. In attendance with me at this visit were Mr Savage, Ms Christine Robinson, safety officer, and Ms Min Taylor, rehabilitation case manager.

9During the visit of Dr Mustapha, Ms Robinson provided Dr Mustapha with a detailed overview and explanations of the various job functions required of a PTO including safe work methods. Dr Mustapha appeared to listen to what was being explained to him, however, he did not offer much comment. Mr Savage discussed a number of the functions with Dr Mustapha in our presence, giving reasons for him not being able to do certain duties.

10At the end of Dr Mustapha’s visit he said that he would get back to me with a report.

11On 23 December 2004, Dr Mustapha provided me with a short report which stated that as all work involved the use of both arms, and extending the arms during the process of lifting and packing, Mr Savage was not capable of returning to perform his normal duties.

12On 31 May 2005, Mr Kerry Jones performed a worksite assessment of Mr Savage’s normal duties as a PTO. I have read the recommendations Mr Jones has written regarding Mr Savage returning to his normal duties.

13After considering Mr Jones’ recommendations regarding the use of alternative work safe methods, it is my opinion that after a period of gradual return to normal duties, Mr Savage would be able to do the full range of duties of a PTO and perform these duties within the timeframes allocated.

14I recall that there have been some occasions when Mr Savage complained that the time allocated to job runs was been ‘too tight’ and not achievable. These runs were tested with Mr Savage and the time allocated to complete the run was proven to be quite adequate.

15If Mr Savage is not capable of performing his normal job runs in the allocated timeframe then I would be unable to accommodate him back at work in his normal job or any other part time job, as these jobs all require the use of both arms, the extension of arms and regular lifting.”

70.     In examination-in-chief Mr Rolt gave the following evidence:

“Now, have you read Mr Kerry Jones’s report concerning the duties of a Postal Transport Officer?---Yes, I have.

And what is your opinion concerning the recommendations made by Mr Jones in that report. That is the report of 8 June 2005 which is R17?---Yes. I think if – if – with a graduated return process that we – that Jeff would be able to, based on how it’s demonstrated, would be able to actually complete the tasks, like, I mean, there are always safe operating procedures with every task, but it’s like everything else in the – the workplace, people do things a little bit differently for, you know, whether to gain five minutes here or five minutes there, but I quite genuinely believe that if you adhere to what Mr Jones is saying and you actually lift the product, you move the product, you – if mail bags are overweight and you split them and so on that, yes, I believe you can quite genuinely complete those tasks.

Now, you mentioned a graduated return to work, can you explain to the Tribunal what that would involve in a case such as Mr Savage’s?---Well, I think with someone coming back to work and particularly after such a long period and what the person has been off work with, I think it would only be fair, like you wouldn’t bring someone back and say: well here’s the tasks, out you go, you know, good luck. You would do it on a graduated basis, you know, whether that might be over four weeks, round about that. So that, like on day one, it might be a couple of hours, two hours a day and perhaps three hours a day or perhaps even one, two, three. I mean you’d rely also on the advice of rehabilitation officers. They are the experts, so you would be guided to some degree by them, but I’d be more than happy to sort of say: well, we need to do this on a graduated basis of whether it be one hour a day, two hours a day, three hours a day and perhaps at an alternate time of the day where it’s not quite so busy, so that you phase yourself in, rather than coming in to when it’s a busier part of the day.

All right, thank you. Now, in respect of lifting requirements at Australia Post, Mr Rolt, what is your understanding concerning the attitude of Australia Post towards lifting requirements for PTOs?---Well, I guess the main push, the primary thing from an organisational viewpoint is that people lift safely, there – there’s no actual – there’s no restriction that says you can’t lift more than 10 kilos or 20 kilos or 30 kilos, you – because you can provided that you adhere to kinetic lifting techniques, you can lift quite a lot of weight. What we tend to do as a preference is, anything that’s over 16 kilos we’ll mark and identify either with, generally if it’s a mail bag, two-man stickers or if it’s a parcel a two-man lift type sticker on it, and where possible two people will lift. But again, the main purpose of that is simply to identify that it’s over a certain weight, that it’s over 16 kilos but you don’t have to have a two man person to lift it, you can lift it quite safely yourself. And again, you simply use kinetic lifting techniques which forms part of our training.” (Transcript, pp 360-361)

71.     Mr Rolt acknowledged that there is a requirement that PTOs lift parcels up to 32 kilograms in weight. He explained that the respondent has entered into contracts with certain customers which involved the collection by PTOs of parcels up to 32 kilograms in weight. He added, however, that a PTO “can safely lift 32 kilos”.

72.     In cross-examination Mr Rolt acknowledged that he would not be prepared to accept, as normal duties of a PTO, a restriction of lifting a maximum of 16 kilograms. He also acknowledged that it was the expectation of the respondent that PTOs would collect, transport and deliver “overweight items” as part of their normal duties.

73.     Mr Rolt was asked whether, having considered Mr Jones’ report, he would be prepared to have the applicant back at work in order to ascertain whether he was able to do the job of a PTO on the basis recommended by Mr Jones. Mr Rolt acknowledged that Mr Jones’ report provided a basis for the applicant to return to work, but he added that the applicant must, after a graduated period, be able to complete all of the “inherent requirements” of the job of a PTO. When it was put to Mr Rolt that the applicant was now prepared to return to work on that basis, Mr Rolt said that the respondent wanted the applicant back at work and their aim would be to try to return the applicant to full duties in a graduated manner in consultation with rehabilitation providers.

Additional Evidence

74.     The Tribunal also had before it, inter alia, a copy of the abovementioned surveillance videotape of the applicant performing lawn-mowing and related activities on 6, 9 and 14 January 2004 (Exhibit R9), and a report of Paul Hocking dated 16 January 2004 (T70) regarding his surveillance of the applicant on 6, 9 and 14 January 2004. Mr Hocking also gave oral evidence in which he confirmed that he had filmed the applicant on the abovementioned dates and that the contents of his abovementioned report are, subject to one amendment (which he specified), true and correct. It is unnecessary to refer to Mr Hocking’s evidence in detail or the contents of his report in these reasons.

The Relevant Legislation

75. Section 14(1) of the SRC Act provides:

“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.”

Section 4 of the SRC Act relevantly provides:

“ (1)  In this Act, unless the contrary intention appears:

...

aggravation includes acceleration or recurrence.

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.

...

impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.

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.

…

(9) A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:

(a)       an incapacity to engage in any work; or

(b)an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.

…”

Section 16 of the SRC Act provides for the payment of compensation in respect of reasonable medical expenses incurred in relation to an injury, and s 19 of that Act provides for the payment of compensation for incapacity for work resulting from an injury.

Analysis and Findings

Does the applicant continue to suffer from an “injury” within the meaning of s 14(1) of the SRC Act?

76.     The medical evidence before the Tribunal unreservedly confirms that the applicant presently suffers from acromioclavicular joint pathology in his left shoulder, and the Tribunal so finds. Furthermore, all of the medical evidence before the Tribunal – other than that of Dr Low – confirms that the applicant’s present left acromioclavicular joint pathology is related to the relevant work incident of 21 July 2003 involving the lifting of a heavy mail bag from a street posting box. That medical evidence supports the proposition that that work incident aggravated a pre-existing osteoarthritis condition in the applicant’s left acromioclavicular joint, and that the applicant has since continued to suffer, and is presently suffering, from that condition. The Tribunal prefers that evidence to the evidence of Dr Low that in the incident of 21 July 2003 the applicant sustained a biceps tendon strain in his left shoulder which subsequently resolved and that his present condition of left acromioclavicular joint pathology is unrelated to his employment with the respondent.

77. Accordingly, the Tribunal finds that the applicant presently continues to suffer from an aggravation of pre-existing osteoarthritis of the left acromioclavicular joint which he sustained in the course of his employment by the respondent on 21 July 2003, and that that aggravation therefore constitutes an “injury” (as defined in s 4(1) of the SRC Act) within the meaning, and for the purposes, of s 14(1) of the SRC Act.

Has the applicant’s injury resulted in “impairment” within the meaning of s 14(1) of the SRC Act?

78. On the basis of the medical evidence before it, the Tribunal has no difficulty in finding that the applicant’s injury – namely, aggravation of pre-existing osteoarthritis of the left acromioclavicular joint – which he sustained on 21 July 2003, has resulted in “impairment” (as broadly defined in s 4(1) of the SRC Act) within the meaning, and for the purposes, of s 14(1) of the SRC Act.

Has the applicant’s injury resulted in “incapacity for work” within the meaning of s 14(1) of the SRC Act?

79. A far more problematic issue is whether the applicant’s injury – namely, aggravation of pre-existing osteoarthritis of the left acromioclavicular joint – has resulted in “incapacity for work” within the meaning of s 14(1) of the SRC Act, and, if so, for what period of time.

80.     There is a conflict in the medical evidence before the Tribunal in relation to this issue. Dr Mustapha (the applicant’s treating general practitioner) and Dr Williams, Orthopaedic Surgeon, are of the opinion that the applicant continues, by reason of the abovementioned injury sustained on 21 July 2003, to be partially incapacitated for work in that he does not have the capacity to perform the full duties of a PTO, but instead merely has the capacity to work subject to restrictions regarding, in particular, heavy lifting and the use (especially the repetitive use) of the left arm above shoulder height. Dr Skirving, Orthopaedic Surgeon, and Dr Low, Occupational Physician, however, are of the opinion that the applicant is not longer incapacitated for work by reason of the abovementioned injury sustained on 21 July 2003 in that he has the capacity to perform the full duties of a PTO.

81.     The Tribunal notes that the opinions expressed by Dr Skirving and Dr Low, to the effect that the applicant has the capacity to perform the full duties of a PTO, were largely based on the abovementioned surveillance videotape of the applicant performing lawn-mowing and related activities on 6, 9 and 14 January 2004 (Exhibit R9). Dr Mustapha, who had also viewed that videotape, nevertheless maintained his opinion that the applicant was partially incapacitated for work, because he regarded the lawn-mowing and related activities performed by the applicant, as shown on the videotape, as “light duties”. Dr Williams had not viewed that videotape.

82.     Mr Jones, Occupational Therapist, also expressed the opinion that the applicant has the capacity to perform the full duties of a PTO, but subject to the proviso that he must observe safe work practices (as specified, for example, in the respondent’s documents TD101 and TD102, set out in paragraph 65 above) especially in relation to the lifting of heavy loads (up to 32 kilograms). The Tribunal notes that Mr Jones’ opinion was also largely based on the abovementioned surveillance videotape (Exhibit R9).

83.     The Tribunal, having viewed the abovementioned surveillance videotape (Exhibit R9) and having considered all of the evidence before it, including, of course, the applicant’s own evidence, accepts the opinions of Dr Skirving, Dr Low and Mr Jones to the effect that the applicant has the capacity to perform the full duties of a PTO. The Tribunal also accepts the proviso added by Mr Jones regarding the applicant’s observing safe work practices in performing those duties.

84.     

The Tribunal does not accept the opinion of Dr Mustapha that the lawn-mowing and related activities, which the applicant was shown, on the abovementioned videotape, to be performing without any assistance, constitute “light duties”. In the Tribunal’s opinion those activities include moderate-to-heavy manual work and the applicant appeared, on that videotape, to perform all of those activities without any discomfort or difficulty. The Tribunal accepts the opinions of Dr

Skirving, Dr Low and Mr Jones that the physical demands of the applicant’s lawn-mowing and related activities are comparable to those of the normal duties of a PTO and that the applicant’s apparent ability to perform the former activities without discomfort or difficulty is indicative of his having the functional capacity to perform the full duties of a PTO.

85.     The Tribunal has given little weight to the opinion of Dr Williams regarding the applicant’s work capacity because (as previously noted) Dr Williams had not viewed the abovementioned surveillance videotape and he was, furthermore, under the impression that the applicant was doing merely “a limited amount of mowing” with the help of his son – an impression which, in the opinion of the Tribunal, was false (see paragraph 86 below).

86       Finally, as regards the applicant’s own evidence, the Tribunal, having regard to the whole of the material before it, has serious reservations about the credibility of various aspects of that evidence. In particular, the Tribunal is satisfied that the applicant substantially understated the number of lawn-mowing and related jobs that he actually performed in the period since sustaining his work-related  shoulder injury on 21 July 2003, and substantially overstated the assistance actually provided to him, especially by his son, in performing those jobs. The Tribunal is also satisfied that the applicant deliberately gave a similarly false history to Dr Low and to Dr Skirving in relation to those matters, and, furthermore, that he deliberately gave an incomplete history to his own treating general practitioner, Dr Mustapha, in that he failed to inform him of the incident when he tripped over the cat at his residence on 7 August 2003 and thereby suffered an exacerbation of his left shoulder pain. The Tribunal also notes that the applicant deliberately gave false information regarding his medical history and work history to a prospective employer in a job application in June 2004 and, furthermore, that he falsely declared that all of the information provided by him in that job application was true.

87.      The Tribunal also notes that, in cross-examination, the applicant ultimately acknowledged that he could “probably” perform certain important duties of a PTO (see paragraph 23 above), and that, in the course of Mr Rolt’s evidence, the applicant’s counsel indicated that the applicant was prepared to return to work (on the next work day) as a PTO on the basis proposed in Mr Jones’ report of 8 June 2005 (Exhibit R17).

88. Having regard to the whole of the evidence before it, the Tribunal finds that the applicant does not presently have an “incapacity for work” (as defined in s 4(9) of the SRC Act). It is, in the Tribunal’s opinion, open to it, on the basis of that evidence, to find that the applicant has not had such an “incapacity for work” since at least January 2004 when the abovementioned video surveillance film was taken. The Tribunal is, however, prepared to accept the respondent’s contention that the applicant ceased to have such an “incapacity for work” as at 1 May 2004.

89. Accordingly, the Tribunal finds that as at 1 May 2004 the applicant’s injury – namely, aggravation of pre-existing osteoarthritis of the left acromioclavicular joint – which he sustained on 21 July 2003, had ceased to result in “incapacity for work” (as defined in s 4(9) of the SRC Act) within the meaning, and for the purposes, of s 14(1) of the SRC Act. The Tribunal further finds that from 1 May 2004 to the present date, and as at the present date, the applicant has not had, and does not have, such an “incapacity for work” as a result of that injury.

Conclusion

90. The Tribunal concludes, therefore, that the respondent continues to be liable under s 14(1) of the SRC Act to pay compensation to the applicant in accordance with that Act in respect of an injury, namely, aggravation of pre-existing osteoarthritis of the left acromioclavicular joint, sustained by him on 21 July 2003, on the basis that that injury:

·results in “impairment” (as defined in s 4(1) of the SRC Act);

·from 1 May 2004 to the present date, and as the present date, does not result in “incapacity for work” (as defined in s 4(9) of the SRC Act).

Decision

91. For the above reasons the Tribunal sets aside the reviewable decision of the respondent dated 1 June 2004, and, in substitution therefor, decides that the respondent is liable under s 14(1) of the SRC Act to pay compensation to the applicant in accordance with that Act in respect of an injury, namely, aggravation of pre-existing osteoarthritis of the left acromioclavicular joint suffered by him on 21 July 2003, as follows:

·the respondent is liable to pay compensation to the applicant in accordance with s 16 of the SRC Act in respect of the cost of reasonable medical treatment obtained in relation to that injury;

·from 1 May 2004 to the present date, and as at the present date, the respondent is not liable to pay compensation to the applicant in accordance with s 19 of the SRC Act for incapacity for work.

92. The Tribunal orders, pursuant to s 67(8) of the SRC Act, that the costs of these proceedings incurred by the applicant be paid by the respondent.

I certify that the 92 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President SD Hotop and Dr D Weerasooriya, Member

Signed:         ........Sgd (E Jordan)....................................
  Associate

Dates of Hearing  31 January, 1, 2 and 3 February 2006
Date of Decision  4 May 2006
Counsel for the Applicant         Mr J Criddle
Solicitor for the Applicant          Slater & Gordon
Counsel for the Respondent     Ms P Giles
Solicitor for the Respondent     Sparke Helmore