Seaton and Australian Postal Corporation
[2007] AATA 1056
•15 February 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1056
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N 2004/813
GENERAL ADMINISTRATIVE DIVISION ) Re GAIL SEATON Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Senior Member M D Allen
Dr I Alexander, Member
Date15 February 2007
PlaceSydney
Decision The decision under review is SET ASIDE and the Tribunal substitutes its decision namely that the Applicant is entitled pursuant to section 14 of the Safety Rehabilitation and Compensation Act 1988 to compensation for the injury described as “bilateral arm pain” for the period 2 March 2004 to 11 June 2004 inclusive.
The Respondent is to pay the Applicant’s costs.
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M.D. Allen
Presiding Member
CATCHWORDS
WORKERS COMPENSATION – claim for compensation for “left and right tennis elbow” – Applicant a poor historian but honest witness – increased pain experienced by Applicant whilst working – Tribunal satisfied that Applicant suffered an injury and did suffer pain as a direct result of her work duties – decision under review set aside and the Tribunal substitutes its decision that the Applicant is entitled to compensation for the injury of “bilateral arm pain” for the period 2 March 2004 to 11 June 2004 inclusive.
Safety, Rehabilitation and Compensation Act 1988 – s14
Australian Postal Corporation v Oudyn [2003] 73 ALD 659
Re Gray and Commonwealth Banking Corporation & Anor (Unreported Tribunal decision No. 5168, December 1989)
Glavinas v Holden Motor Co Ltd [1991] SASC 3089 (25 October 1991)
REASONS FOR DECISION
15 February 2007 Senior Member M D Allen
Dr I Alexander, Member1. By application made on the 1st day of July 2004 the Applicant sought review of a “reviewable decision” made the 28th day of May 2004 affirming a prior determination rejecting her claim for compensation in regard to “left and right tennis elbow.”
2. At the outset it must be kept in mind that the reviewable decision before this Tribunal is that of 28 May 2004 affirming the rejection of a claim made on the 8th day of March 2004 in respect of the condition described as “tennis elbow right/left.” A previous determination dated 11 November 2002 had purported to cease liability in respect of the injury described as “aggravation bilaterial epicondylitis.” Given the decision of the Federal Court in Australian Postal Corporation v Oudyn [2003] 73 ALD 659, that determination is a nullity but as stated above that determination was not before this Tribunal.
3. The Applicant first commenced employment with the Resonpondent in or about 1969. She subsequently resigned after her marriage. She was re-employed by the Respondent in December 1994 in its food services division. When that division was outsourced to a private company she accepted alternate empoyment as a parcel sorter.
4. After six months of training, the Applicant commenced work as a parcel sorter at the Respondent’s Clyde Depot. Her duties were putting parcels into bags and she is still carrying out those duties.
5. Unfortunately, the Applicant is not a good historian and it was difficult to fully ascertain what problems had developed when, in respect of pain in her arms and elbows. Suffice it to say a claim for compensation was made on 26 March 2002 for “right lateral epicondylitis and left medial epicondylitis.”
6. Investigations into the above claim led to the Respondent on 17 April 2002 accepting liability pursuant to section 14 of the Safety Rehabilitation and Compensation Act 1988 for the condition described as “aggravation (of) pre-existing condition bilateral arm condition.” The date of injury was said to be 22 March 2002.
7. On 15 April 2002 Dr McGroder, Consultant Occupational Health Physician, had reported to the Respondent:
(1) “Mrs Seaton does suffer from a bilateral arm condition. She has a low grade right lateral epicondylitis and left media epicondylitis and to a lesser extent a left lateral epicondylitis. I feel the condition is an appropriate diagnosis in this instance. She denied any trauma that would be relevant to her condition.
(2) There would be a connection between the above condition and the work circumstances of the 22/3/02. It was however of gradual onset and her initial problem started on the right in December 2001. Her symptoms gradually increased. The work circumstances on the 22/3/02 made the underlying condition manifest.”
8. Subsequently, a report was obtained from Dr McGill, Rheumatologist. In that report dated 2 August 2002 Dr McGill stated interalia:
“I think it is likely that she has experienced right medial and possibly also right lateral epicondylitis over the course of this year but currently she has minimal evidence of either of those disorders. The residual tenderness is in keeping with largely resolved epicondylitis …
I think her probable previous right medial and right lateral epicondylitis was aggravated or caused by her work duties and that it was appropriate that those symptoms were considered work related. Although the problem appears to have largely resolved, I think it is also reasonable to accept that there may be still some minor residual medial and lateral epidcondylitis on the right side.”
9. The Applicant had been placed on a return to work program which imposed restrictions on the duties carried out by her. This return to work program was not fulfilled by the Applicant so that on 9 October 2002 a reconsideration decision was made directing her to participate in the said program.
10. A report by Dr Kalnis, Orthopedic Surgeon, dated 11 October 2002, then led to the determination of 11 November 2002 purporting to cease liability. Dr Kalnis’ report read:
“Mrs Seaton has a long history of symptoms in both elbows and wrists, but when examined today she revealed no clinical evidence of any significant tendonitis or neuritis. Given the history that she has of problems like this, then it is quite possible that if she had to do heavy or highly repetitive work she could have further recurrence of her symptoms, either with her elbows or with her carpal tunnel, as she seems to be susceptible to these strains of her muscles and pressure on the peripheral nerves.
I do not feel any other specific treatment is indicated at the moment.”
11. A memorandum dated 10 January 2003 by Ms Kerr, Rehabilitation Counsellor, noted:
“Ms Seaton was able to achieve an upgrading to a 13kg lifting limit by 20 December 2002. On 23 December 2002 Ms Seaton requested the cessation of rehabilitation involvement in the monitoring of her further upgrading.”
12. Cross-examined, the Applicant stated she had been performing full unrestricted duties but with breaks and had not had time off because of elbow pain.
13. Whilst working on 2 March 2004 the Applicant experienced increasing pain in her elbows, increasing in severity to the point she was unable to continue performance of her duties.
14. As a result of experiencing pain she consulted Dr Antoun, a general practitioner nominated by the Respondent. The clinical notes of Dr Antoun became Exhibit A3 in these proceedings.
15. The notes of Dr Antoun reveal that he examined the Applicant on the 2 March 2004 and on three subsequent occasions. On the first occasion, namely 2 March 2004, Dr Antoun noted a previous history of elbow problems. On examination of the right arm he found muscle tenderness on the proximal right forearm and tenderness over the right lateral epicondyle worse with the wrist extended. On the left arm he noted tenderness over the lateral forearm muscle belly and lateral epicondyle and minimal discomfort with the wrist extended. His impression was that Mrs Seaton had tennis elbow and muscle strain. He recommended modified work duties and treatment with analgesia (Celebrex), home stretching exercises and an elbow strap.
16. Dr Antoun next saw the Applicant on 16 March 2004. She continued to complain of intermittent pain but had noted much improvement. On examination Dr Antoun found that there had been much improvement in the tenderness. He recommended an increase in duties.
17. On 30 March 2004, Dr Antoun noted tenderness on deep palpation on right lateral epicondyle and right medial insertion point and left lateral insertion point. He noted that the Applicant felt she could increase duties with weights up to 10kg.
18. Dr McGill, Consultant Rheumatologist, was consulted by the Applicant on 31 March 2004. Dr McGill took a fairly comprehensive history and performed an examination that included provocative testing. He noted that the “pattern of response to resisted contraction was not as one would expect for epidcondylitis” and concluded that although the Applicant reported elbow and forearm discomfort she did not have evidence of epicondylitis at the time of this examination. He conceded that he could not exclude the possiblity of minor epicondylitis at other times. He could find no clinical evidence of significant pathology and opined that the Applicant may experience muscular discomfort after doing heavier work. The Applicant consulted Dr Antoun again on 8 April 2004. She claimed an increase in pain following an increase in duties. On examination Dr Antoun found ternderness over right and left medial and lateral epicondyles. Mrs Seaton did not consult Dr Antoun again and returned to her own general practioner, Dr Dorman.
19. Dr Dorman’s clinical notes reveal that during March 2004 he saw the Applicant on two occasions with regard to lower back pain. The only mention of her elbow problems was a note indicating that the Applicant had requested another bone scan be done.
20. On 15 April 2005, Dr Dorman noted that the Applicant was upset because her claim had been denied and he referred her to Dr Cumming, Orthopedic Surgeon. In his report of 22 April 2004 to Dr Dorman, Dr Cumming stated:
“Her current symptoms are still those of medial and lateral pain in her elbows. As described, the maximum being the right lateral epicondyle.
Clinical examination today confirms local tenderness over the epicondyle on each side, maximum on the lateral and not so easy located on the medial side.
I have reviewed the technetium scans which confirm an increased uptake at these sites …
It would seem therefore that the condition she has is not specifically caused due by her work in terms of ateology but that it is certainly work aggravated. The nature of the repetitive and heavy work she performs is certainly likely to cause such symtomatic aggravation while she so continues.”
21. Dr Dorman on 29 April 2004 noted that the Applicant was basically back to full time duties, and on examination found tenderness over all condyles, particularly the right medial. On 11 June 2004 Dr Antoun noted that the Applicant “was really doing full time work.”
22. The report of the regional scan done on 25 March 2004 states that there is scan evidence for low grade medial and lateral epicondylitis at both elbows with no progression since the previous scan in October 2002. The evidence was in the form of low grade tracer uptake at the medial and lateral epicondyle of both elbows, that however, when directly compared with the 2002 scan, appeared slightly less intense.
23. In evidence to the Tribunal Dr McGill stated that in his opinion the scan appearances did not represent significant pathology but a variation of normal. Professor Sambrook in evidence conceded that an abnormal scan appearance might persist for some time after the resolution of a previous injury.
24. It would not be unreasonable to expect that a significant new injury or aggravation of an old injury would result in an enhanced scan abnormality. This does not appear to be the situation in this case.
25. We find, however, that there is sufficient evidence to satisfy us that the Applicant suffered an injury on 2 March 2004. After considering the inconsistency of the physical findings and the Applicant’s history, and the fact that she continued to work and was back to full time work in June 2004, we are satisfied that the injury did not amount to a bilateral epicondylitis.
26. Although a poor historian we accept the Applicant as an honest witness who is doing her incompetent best to recall past events. We are satisfied that on 2 March 2004 and for a period thereafter she did suffer pain as a result of carrying out the duties of her employment.
27. In Re Gray and Commonwealth Banking Corporation & Anor (Unreported Tribunal decision No. 5168, December 1989), commencing at paragraph 34 the Tribunal said:
(34) “It is not necessary to put a name to the compensable disease … What matters is not the name to be attached to the syndrome, but the fact that the applicant is incapacitated by reason of an “ailment” (new Act) or “physical or mental ailment, disorder, defect or morbid condition” (old Act) and that this incapacity is the result, and continues to be the result, of a contribution or a contribution to a material degree, by her employment.
(35) The failure to observe pathology or the perception of different pathology is also irrelevant in determining incapacity. In Commonwealth Banking Corporation v Percival 82 ALR 54 at 57, a full bench of the Federal Court (presided over by Davies J) referred to a submission that Commonwealth of Australia v Beattie (1981) 53 FLR 191 had been wrongly decided, and that the disease of which the old Act spoke was constituted by its underlying pathological condition and not by the symptoms thereof. The Court referred to this as a “a brave submission.” It went on to say:
“No doubt, for many medical purposes, it is useful and often necessary to distinguish between the underlying pathology of a disease and mere symptoms of the disease. For some legal purposes, eg S104(2) of the Act, the distinction is also pertinent. See Johnston v Commonwealth (1982) 150 CLR 331 at pages 341-3. But that is not to say that the symptoms of the disease are not part of the disease. It is indeed fundamental to compensation law that a symptom of an injury or disease is a part of the condition in respect of which compensation for incapacity is granted. Pain is probably the most common symptom of injury or disease. It is equally the most common factor leading to compensable incapacity.”
Compared with Glavinas v Holden Motor Co Ltd (Supreme Court of South Australia, Bollen J – No. 61/90, 25 October 1991), where His Honour held:
“The mind, temperament and character of a man or woman does not move and have its being only in areas capable of strict categorisation as physical or phychiatric. If there by something about the victim of a tort which makes him or her feel pain and thereby be incapacitated he or she is entitled to adequate damages in compensation for the effects of that tort even though the symptoms cannot be defined by any conventional label.”
28. In this matter we are satisfied that the Applicant did experience pain and that this was a direct result of her work duties. The injury had resolved by 11 June 2004 but the Applicant is entitled to compensation for the intervening period. The decision under review will therefore be set aside and the Tribunal substitutes in lieu thereof its decision namely that the Applicant is entitled pursuant to section 14 of the SRC Act 1988 to compensation for the injury described as “bilateral arm pain” for the period 2 March 2004 to 11 June 2004 inclusive. The Respondent is to pay the Applicant’s costs.
I certify that the preceding 28 paragraphs are a true copy of the reasons for the decision herein of Sydney
Signed:
[Amanda Aitken]
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Associate
Date of Hearing 29 & 30 January 2007
Date of Decision 15 February 2007
Counsel for the Applicant Mr D Richards
Solicitor for the Applicant Slater & Gordon Lawyers
Counsel for the Respondent Mr G Johnson
Solicitor for the Respondent Graham Jones Lawyers
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