Sheather-Smith and Australian Postal Corporation

[2005] AATA 1001

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1001

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   A2004/104 GENERAL ADMINISTRATIVE DIVISION  )                &  A2004/127
  )                &  A2005/301

Re LORRAINE SHEATHER-SMITH

Applicant

And AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal   J.W. Constance, Senior Member

Date  11 October 2005

Place  Canberra

Decision In matters A2004/104, A2005/127 and A2005/301 the decision of Australian Postal Corporation made 27 September 2005 is affirmed.

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CATCHWORDS

COMPENSATION – claim for entitlement - whether applicant made a “wilful and false representation” that she had never suffered from the injury in respect of which the current compensation claim relates – whether applicant entitled to incapacity payments - compensation previously paid in respect of injury - misrepresentations made on application for employment – incorrect and incomplete medical history given to examining doctors – injury not contributed to in a material degree by employment – decision under review affirmed

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 7, 14, 19, 60

Comcare Australia v Porter (1996) 138 ALR 469

REASONS FOR DECISION

11 October 2005                   J.W. Constance, Senior Member

INTRODUCTION

1.      During the 1960’s, 70’s and 80’s Ms Sheather (previously Ms Sheather-Smith) was an outstanding athlete who played a number of sports including hockey, cricket, squash and swimming, some at State and National levels. Her employment during the 1980’s and 90’s was mainly as a sales representative for a number of different employers.

2.      In 1998 Ms Sheather decided to apply for a position as a mail sorter with Australia Post. To this end she completed and gave to Australia Post an application form. In that form she answered questions as to her previous employment and her medical history. Some of these answers were false. Unfortunately for Ms Sheather her answers as to her medical history represented to Australia Post that she had not suffered from the disease in respect of which she was later to make claims for compensation.

3.      Ms Sheather’s application for employment was successful and in 1998 she commenced work as a mail sorter. Around October 1999 she began to suffer pain in both elbows, worse in the right than the left, which she believed was a result of her work. In July 2000 Ms Sheather claimed compensation for epicondylitis in the right elbow. Australia Post rejected the claim and Ms Sheather applied to this Tribunal for a review of that decision. In 2001 the Tribunal decided (with the consent of both parties) that Ms Sheather had suffered an injury to her right elbow of the nature she claimed and that she was entitled to incapacity payments and medical expenses by way of compensation.

4.      In January 2004 Australia Post decided that it was not liable to compensate Ms Sheather for her incapacity for work for a period commencing on 1 November 2003 on the basis that this incapacity was not work-related. In May 2005 Australia Post decided that surgery proposed for treatment of the injury was not reasonable and that it would not compensate Ms Sheather for the cost of that treatment should it proceed.

5. Prior to the hearing Australia Post had raised a concern that there may be a question as to the Tribunal’s jurisdiction to deal with the issue of whether Ms Sheather had made a wilful and false representation. The concern was that determination of this question may be required under section 14 of the Act and as such not subject to review in these proceedings. Consideration was given as to whether a reconsideration by Australia Post of its own motion should be undertaken to remove any doubt.

6. Subsequently, but prior to the hearing, the parties agreed that the Tribunal did have jurisdiction to deal with the section 7 issue. The hearing proceeded without argument on this point. I was aware of this and initially was of the view that the parties were correct in their assessment of the position. However after further consideration I was not satisfied that the Tribunal did have the jurisdiction as agreed and as neither party had argued the question I informed the parties and invited further argument if required.

7.       The parties did not wish to make any further submissions but with the agreement of Ms Sheather, Australia Post reconsidered its decisions and substituted the following:

“…in accordance with sections 7(7) and 14 of the Safety, Rehabilitation and Compensation Act 1988, the Australian Postal Corporation is not, and has not ever been, liable to pay compensation in respect of [Ms Sheather’s] claimed ‘injury to right elbow’ sustained on 3 July 2000.”

8. In accordance with the definition in section 60 of the Act this reconsideration is now the decision subject to review by the Tribunal.

ISSUES

9.      The issues which arise for determination are:

A.did Ms Sheather make a wilful and false representation that she had not previously suffered from the disease that she now claims is an injury for which she is entitled to compensation?

B.is Ms Sheather entitled to compensation for her incapacity for work from 1 November 2003 until 8 February 2004?

C.is the proposed surgery reasonable treatment for Ms Sheather to obtain in respect of the injury?

10.     For the reasons set out I have decided that Ms Sheather did make a wilful and false representation and that as a result she is not entitled to compensation for that injury. Even if I am wrong in that conclusion I have decided that Ms Sheather’s right epicondylitis was not contributed to in a material degree by her employment with Australia Post and on that basis she is not entitled to compensation for incapacity for work as a result of that condition.

11.     I am satisfied as to the findings of fact which follow on the balance of probabilities.

A. DID MS SHEATHER MAKE A WILFUL AND FALSE REPRESENTATION THAT SHE HAD NOT PREVIOUSLY SUFFERED FROM THE DISEASE THAT SHE NOW CLAIMS IS AN INJURY FOR WHICH SHE IS ENTITLED TO COMPENSATION?

Statutory Framework

12. Sub-section 7(7) of the Act provides that:

“A disease suffered by an employee, or an aggravation of such a
disease, shall not be taken to be an injury to the employee for the
purposes of this Act if the employee has at any time, for purposes
connected with his or her employment or proposed employment by
the Commonwealth or a licensed corporation, made a wilful and
false representation that he or she did not suffer, or had not
previously suffered, from that disease.”

Findings of fact

13.     Ms Sheather is not entirely certain of the details of her employment history but on the basis of her evidence it appears to be as follows:

1982-1983    Arnott’s Biscuits                   Sales Representative

1982-1985    Coates Patterns                   Sales Representative

1985              Yates Seeds  Sales Representative

1958-1989    Innoxa  Sales Representative

1990            Baxter Health Care              Accounts Manager

1990-1991    Security Express                  Sales Representative

1991-1992[1]   Haymes Paints  Sales Representative

1994              Style Centre International  Sales Representative

1994             NIB Health Fund

1994-1995    Pictura Graphica                  Sales Representative

1995-1996     Avon Products  Sales Manager

1996-1997    Exhibition Centre                 Sales Representative

1998 to date Australia Post  Mail Sorter / Clerk

[1] Ex. R5.

14.     Whilst she was employed at Haymes Paints, Ms Sheather was injured when she tried to prevent two 10 litre cans of paint falling over as she was removing them from a vehicle. She said that this injury caused her pain in her wrists, arms, shoulders, neck and back.

15.     Documents produced on summons and tendered by Australia Post in these proceedings show that following this injury Ms Sheather sought treatment for it at least as follows:

a)26 May 1992 x-rays of both elbows at Geelong radiological Clinic[2];

b)consultations with Dr Bennett, General Practitioner, commencing on 26 February 1992[3];

c)injection in the right elbow by Dr Bennett on 16 March 1992[4];

d)physiotherapy and ionophoresis at Geelong Sports Medical Centre in 1992 and the use of arm bands[5];

e)consultation with Dr Griffiths, Consultant Rheumatologist and Physician, at Geelong in May 1992[6];

f)consultation with Occupational Therapist at Geelong Hospital in June 1992[7];

g)consultations with Dr Rowland, General Practitioner, in Canberra commencing on 25 August 1992[8];

h)consultation with Dr Ashman, Orthopaedic Surgeon, at Canberra in September 1992;

i)consultation with Dr Cassar, Consultant Physician, Cardilogy, Rheumatology, in Canberra in 1993;

[2] Ex. R20.

[3] Ex. R19.

[4] Ex. R19.

[5] Ex. R19.

[6] Ex. R11.

[7] Ex. R19.

[8] Ex. R7.

Ms Sheather gave evidence that in the period between late 1993 and October 2004 she did not recall any of these consultations, or indeed that she was injured in 1991. She said that she had made a complete recovery from her injury by late 1993 or early 1994 and from that time did not remember anything in relation to the injury or its consequences until documents produced on summons in this matter were shown to her in October 2004. She also said that she has not suffered from any particular memory problems nor has she been treated for memory loss.

16.     On 18 February 1993 Ms Sheather completed a Victorian WorkCover Authority Claim for Compensation for Permanent Disability in respect of the injury which she described as being to her “Left & Right Fore Elbows Left & Right Back Elbows Joints”.[9]  She said in evidence that this claim was for a condition very different to that from which she now suffers and that in completing this form she “must have forgotten”  to include a reference to her neck, shoulders and back.

[9] Ex. R5.

17.     On 12 March 1992 Ms Sheather completed a WorkCare claim form[10] in which she described her injury as “tennis elbows (non Medical term)”.  On 3 April 1992 she was assessed by Dr Wyatt who recorded in the history taken from Ms Sheather that her doctor had advised her that she had tennis elbow.[11]  On 29 May 1992[12] Dr Griffiths, Consultant Rheumatologist & Physician, reported that Ms Sheather “has bilateral and lateral epicondylitis, to which she attributes (sic) her work as a representative for Haymes Paints.”  Dr Eaton gave evidence, which I accept, that lateral epicondylitis is commonly known as tennis elbow.

[10] Ex. R2.

[11] Ex. R14.

[12] Ex. R11.

18.     In 1993 Ms Sheather moved from Ballarat to Canberra, partly because of the effect her injury was having on her life. For approximately one year (about 1993/1994) Ms Sheather was in receipt of disability pension as she could not work as a result of the injury. In March 1994 Ms Sheather’s claim was settled for a substantial sum on the basis of a period of incapacity for work and a permanent partial loss of use of her right arm.[13]  In 1994 Ms Sheather again sought, and obtained, employment. From 1994 until mid 1997 she worked at various times for NIB Health, Style Centre International, Pictura Graphica, Avon Products and Exhibition Centre.

[13] Ex. R7.

19.     When Ms Sheather applied for a position as a mail sorter with Australia Post in 1997 she listed her employment history as follows[14]:

Date of Employment      Name of Employer           Type of Work                   Reason for Leaving

4/6/80 to 2/10/85        Bonus Coats Patons  Sales Representative   To Go To Innoxa

15/11/85 to 15/12/94 Innoxa Cosmetics     Area Manager             [To Go To] Avon

1/1/95 to 4/12/95       Avon Products          District Sales Manager [To Go To] Pictura

8/1/96 to 4/7/96        Pictura Graphica       Area Manager             Company Sold

28/8/96 to 7/3/97       The Exhibition Centre Sales & Marketing       Cut Backs

There was no reference to Haymes Paints in this employment history.

[14] Ex. A2.

20.     In the same application Ms Sheather answered “No” to each of the following questions:

·“Have you ever suffered from, or do you suffer from, joint pain or arthritis?”

·“Have you ever suffered from, or do you suffer from, arm or shoulder pain?”

She told me that when she answered these questions she meant that she was not suffering from these conditions at the time she completed the form. This reason is inconsistent with her statement that she had not recalled the previous injury at all when making the application for employment.

21.     On 20 July 2000 Ms Sheather lodged a claim for compensation with Australia Post for an injury she described as “epicondylitis right elbow, medial epicondylitis right elbow.”[15]  In completing the claim Ms Sheather recorded that she had never had a similar sort of injury and that she had never claimed compensation for a similar injury.

[15] S.37 doc. T14.

22.      Ms Sheather saw a number of medical practitioners in relation to her claim, at the request of both Australia Post and her own solicitors. Prior to October 2004 she did not mention her previous injury to any of these practitioners when asked questions as to her medical history. She told me that was because she did not recall her previous injury, or the treatment she received for it, until reminded of it in October 2004.

Reasoning

23.     I do not accept that Ms Sheather forgot about the previous injury to her elbows when she completed the application for employment. I am satisfied that she deliberately concealed this information from Australia Post so as to improve her chances of gaining employment. I reach this conclusion partly on the basis that the information she gave as to her employment history was detailed. She gave precise dates (which were incorrect) yet omitted any reference to Haymes Paints and the period in which she was not working and in receipt of a disability pension. The dates she did provide accounted for the entire period from 4 June 1980 to 7 March 1997 with only very short breaks between jobs. This information was false. This leads me to the conclusion that Ms Sheather was deliberately excluding information which may have led to enquiries as to her past medical condition.

24.     I have also taken into account that Ms Sheather told me that she has never been diagnosed with any condition affecting her memory and that she had never suffered from a loss of memory. Also, I have taken into account that she said that after about 1994 she only recalled her injury and its treatment when told of documents produced under summons in these proceedings. This was in October 2004. Having regard to the period and extent of the treatment she received and that it was at least part of the reason she moved from Ballarat to Canberra I find her explanation unacceptable. I was also influenced in forming my view as to her lack of truthfulness by the way she answered questions in the witness box. She quickly and repeatedly stated that she had no recollection of facts relating to her employment by Haymes Paints and to her injury, her treatment and her compensation claim. This left me with the impression that she was not giving genuine thought to her answers. Her responses were glib. Ms Sheather’s failure to give a full medical history to examining doctors after she made her claim indicates to me that she was continuing her attempt to hide her failure to disclose her injury in the employment application.

25. The Federal Court considered the meaning of sub-section 7(7) in Comcare Australia v Porter (1996) 138 ALR 469. The use of the word “wilful” requires that “the employee should have no belief that the representation is true.”[16]

[16] At page 479.

26.     I am satisfied that when Ms Sheather advised Australia Post in her employment application that she had never suffered from joint or arm pain she was representing that she had not suffered from epicondylitis. I am satisfied that prior to completing the application form Ms Sheather had suffered from epicondylitis and that she was aware of this fact. I am satisfied that she had no belief that the representation she made to Australia Post was true and that consequently the representation was both wilful and false.

27.     It follows that the injury for which Ms Sheather now claims, namely epicondylitis, is not an injury for the purposes of the Act and Ms Sheather is not entitled to compensation for the injury.

28. In case I am wrong in reaching the conclusion I have in applying sub-section 7(7) of the Act I will consider the further issues set out earlier in these reasons.

B. IS MS SHEATHER ENTITLED TO COMPENSATION FOR INCAPACITY DURING THE PERIOD 1 NOVEMBER 2003 TO 8  FEBRUARY 2004?

Statutory Framework

29. Section 19 of the Act provides for payment of compensation for a period of incapacity for work where the incapacity is a result of an injury.

30.     Under the Act “injury” includes “a disease” and it is not in issue that Ms Sheather’s left epicondylitis is “a disease” if the condition was “contributed to in a material degree” by her employment with Australia Post.

Findings of Fact

31.     Based on the evidence already considered it is clear that Ms Sheather suffered quite severe epicondylitis in the right elbow from 1991 until at least late 1993/early 1994 when Ms Sheather says she fully recovered from the injury she suffered whilst working at Haymes Paints. I am not satisfied that she was free of symptoms from 1994 until 1999. For the reasons already stated, I do not regard her as a reliable witness as to her medical condition.

32.     Assuming that Ms Sheather began to suffer pain in both elbows in 1999 (after some months of working at mail sorting for up to six shifts per week) and that this pain was continuing in February 2004, the question arises of whether the condition causing the pain between 1 November 2003 and 8 February 2004 (when she was absent from work) was contributed to in a material degree by her employment with Australia Post.

33.     Dr Sharma has been Ms Sheather’s General Practitioner since 2001. Dr Sharma was of the view that from 2001 onwards Ms Sheather was suffering from chronic bilateral epicondylitis and that her duties at work have exacerbated her pain.[17] Dr Sharma was not told of the earlier episode of epicondylitis until late 2004 but was still of the opinion that the condition of Ms Sheather in November 2003 was likely to have been a result of repetitive use of the arms at work.

[17] Oral evidence and certificates (ex. A11).

34.     On 9 January 2001 Ms Sheather consulted Dr Speldewinde, Consultant in Rehabilitation, Pain and Musculoskeletal Medicine. He was of the opinion[18] that Ms Sheather was suffering chronic right epicondylalgia rather than specific epicondylitis. He reported that ‘(i)n my opinion, on the balance of probabilities, the condition arose through the course of her work as a mail sorter with Australia Post and unless are (sic) other contributing factors, which have not been made known to me.” When informed of the earlier condition in November 2004 Dr Speldewinde reported that the previous severe complaints were a risk factor for a recurrence but not the cause of a recurrence. He maintained his view that the condition from 2000 onwards was work-related.[19]

[18] Report 3/4/01, ex.A14.

[19] Ex. A18.

35.     In June 2004 Dr Sharma referred Ms Sheather to Dr Eaton, Occupational Physician, and she consulted him on three occasions including a consultation on 29 September 2004. At the latter consultation Ms Sheather informed Dr Eaton for the first time that she had suffered a previous injury to her arms but she denied any problems with her elbows as a result. On the basis of Ms Sheather’s evidence and the claim form she completed in 1992[20] this denial to Dr Eaton was untrue. Dr Eaton is of the opinion that Ms Sheather’s current symptoms (including those experienced in 2003/04 have nothing to do with her previous injury ‘based on Ms Sheather’s account of the history of the previous work-related injury…” [21].  In evidence Dr Eaton said that he had not seen all of the medical reports relating to the earlier injury and that based on what was put to him now as to those records the history given to him by Ms Sheather was incomplete.

[20] Ex.R2.

[21] Ex. A5.

36.     Dr Sharma also referred Ms Sheather to Dr Roberts, Orthopaedic Surgeon. On 16 December 2003 Dr Roberts reported that Ms Sheather ‘denies any prior history of a problem with the right elbow.” [22]  He also reported that she has “signs and symptoms consistent with resistant tennis elbow.” Dr Roberts proposes treatment by way of a right common extensor origin release.

[22] Ex. A19.

37.     Ms Sheather was assessed by Dr Brooder, Consultant Neurologist, on 5 May 2005 at the request of Ms Sheather’s solicitors. Dr Brooder did not have available to him all of the reports relating to the earlier injury but was aware of it. He relied on extracts from some reports which appeared in later reports. He considered that Ms Sheather’s “current condition is different to her clinical presentation in 1991, when she had a more widespread pain syndrome.” [23] He concurred with the general opinion that the current condition is work-related.

[23] Ex. A13.

38.      Ms Sheather also relies upon a report by Dr Elder, Consultant Occupational Physician, who assessed her on 1 May 2002 at the request of Australia Post.[24] Dr Elder diagnosed severe right lateral epicondylitis and was of the view that given the description of Ms Sheather’s duties (mail sorting 8-12 hours per day up to 7 days per week on occasions) the mechanism of injury is completely acceptable as a cause of her condition. Dr Elder also noted that Ms Sheather “denied any past history of her current complaint and denied any injury to her elbows.”

[24] Ex. A22.

39.     Australia Post called Dr Whittaker, Consultant Rheumatologist, and Dr Burke, Consultant Occupational Physician, to give evidence.

40.     Dr Whittaker assessed Ms Sheather at the request of Australia Post on 10 February 2003 and 15 December 2003. It is his opinion that Ms Sheather’s right lateral humeral epicondylitis resulted from her sporting interests rather than from her employment by Australia Post.[25] He reported that a traction spur evident in an x-ray of 3 July 2000 is indicative of the long history of heavy mechanical loads in this area which is consistent with the sports played by Ms Sheather.

[25] Ex. R23.

41.      Dr Whittaker was cross-examined at length concerning the sporting history he had taken from Ms Sheather and it was suggested that he had made extensive errors in his recording and that he may have confused his notes as to Ms Sheather with those relating to another patient. Dr Whittaker denied that this happened and I accept his evidence as accurate in all respects. Ms Sheather gave inaccurate or incomplete histories on a number of occasions. In addition I take into account that on 15 December 2003, when Ms Sheather had a second opportunity to state accurately her sporting history to Dr Whittaker, I am not satisfied that she did so even on that occasion. She told Dr Whittaker that she had not played any sport regularly since 1985 and had played approximately 5 games of tennis between 1989 and 1991. She said that she had not played cricket, squash or hockey since 1985.[26] This is inconsistent with Ms Sheather’s statement in her request to Victorian WorkCover for conciliation in relation to her earlier injury, made in December 1993, that “[b]efore Dec 5…I led an extremely active sports…life” [27].  In any event, Dr Whittaker said that even if Ms Sheather did not engage in active sport in the early 1990’s, this did not cause him to change his opinion.

[26] Ex. R25.

[27] Ex. R6.

42.     Dr Whittaker gave evidence that Ms Sheather’s lateral epicondylitis has been longstanding and that even though symptoms may subside from time to time the pathology remains. He said that Ms Sheather’s history of having suffered previously from the condition, together with the findings of many epidemiological studies, suggest that there is no link between Ms Sheather’s work at Australia Post and the condition. He explained this opinion by saying that the process of sorting mail did not involve loading of the elbow in a way that would cause or aggravate epicondylitis.

43.     I prefer the evidence of Dr Whittaker when there is a difference between his opinions and those of the medical practitioners on whom Ms Sheather relies. I do so because of his more detailed consideration of Ms Sheather’s history and his consideration and explanation of the mechanics of mail sorting and its likely lack of relationship to epicondylitis. Further I am satisfied that Ms Sheather did not give full histories to all of the practitioners who gave evidence on her behalf.   

44.     Dr Burke assessed Ms Sheather on 6 July 2004. In his report of 14 July 2004[28] he stated that “based on the description of her normal activities at work it would be not improbable that the work she was carrying out as a postal officer could have resulted in the symptoms of epicondylitis appearing in her right elbow. It is difficult to understand how she would have developed the symptoms in her left elbow.” [29] At the time of the assessment Ms Sheather denied any significant sporting activities that may impact on her elbows and did not inform Dr Burke of her previous injury. When he learned of that injury Dr Burke expressed the opinion that “the development of her ongoing symptoms is likely to have represented a temporary aggravation of her pre-existing condition” and that he would expect that the effects of any aggravation would have ceased within three months of the onset of the symptoms.[30]  He said that the history of the previous problems was consistent with a degenerative condition. Dr Burke also was of the view, similar to that of Dr Whittaker, that there needed to be a degree of loading to cause epicondylitis.

[28] Ex. R28.

[29] Ex. R28.

[30] Ex. R29.

45.     Dr McGill interviewed and examined Ms Sheather on 31 January 2001. At that time he was of the opinion that her work as a postal sorting officer probably aggravated pre-existing changes in the lateral epicondyle/common extensor tendon and that it was possible that her work duties initiated the problem.[31]  Dr McGill re-examined Ms Sheather on 30 October 2001 and reported that her previous duties (such as moving trolleys of mail) were probably still contributing to her symptoms.[32]

[31] EX R36, report of 31 January 2001.

[32] Ex R37.

46.     After Dr McGill again assessed Ms Sheather (on 15 May 2003), he was made aware, for the first time, of the previous injury and the symptoms Ms Sheather suffered as a result of that injury. On the three occasions Dr McGill had examined Ms Sheather she had specifically stated that she had no elbow region symptoms prior to October 1999.[33] In his report of 29 September 2004[34] Dr McGill stated:

“In light of the further information, I think any genuine effect of her work duties with Australia Post (presuming that that there was some effect which I think is now doubtful) would have ceased within three weeks of her being moved from her normal work duties (which involved moving ULD’s [Unit Load Devices] using a walkie stacker and then a manual floor jack and performing sorting) to administrative and clerical type duties which she performed subsequently.”

[33] Ex. R40.

[34] Ex. R40.

47.     In giving evidence Dr McGill stated that in Ms Sheather’s case an accurate history was “an absolutely critical component” in forming an accurate opinion.  He said that chronic lateral epicondylitis is likely to recur and that it was his awareness that Ms Sheather had suffered from the condition previously that caused him to change his view as to the length of time that her work duties had an effect on her present condition. That he is doubtful as to whether the work at Australia Post had any effect on Ms Sheather’s present condition supports the view of Dr Whittaker.

48.     On the basis of Dr Whittaker’s evidence I am not satisfied that Ms Sheather’s employment by Australia Post contributed to her epicondylitis of her right elbow in a material degree. If I am wrong in this finding I would be satisfied on the basis of the evidence of Dr Burke and Dr McGill that even if there was an aggravation of the condition by the mail sorting activities any aggravation had ceased to have an effect prior to 1 November 2003.

C. IS THE PROPOSED SURGERY REASONABLE TREATMENT FOR MS SHEATHER TO OBTAIN IN RESPECT OF THE INJURY?

49.     As I have decided that Ms Sheather’s right epicondylitis was not contributed to in a material degree by her employment with Australia Post, the reasonableness or otherwise of the proposed surgery does not arise as it follows that she is not entitled to compensation for medical expenses related to that condition. Even on the alternative basis that Ms Sheather’s work aggravated the condition I have found that the effect of any such aggravation would have ended shortly after the aggravation  happened and there is nothing to suggest that there has been any further aggravation. In these circumstances Ms Sheather is still not entitled to be compensated for the treatment proposed.

DECISION

50.     In matters A2004/104, A2005/127 and A2005/301 the decision of Australian Postal Corporation made 27 September 2005 is affirmed.

I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of J.W. Constance, Senior Member

Signed:         .....................................................................................
  Associate

Date/s of Hearing  29 August 2005 – 1 September 2005
Date of Decision  11 October 2005
Solicitor for the Applicant          Meyer Vandenberg
Counsel for the Applicant         Ray Mildren
Solicitor for the Respondent     Sparke Helmore
Counsel for the Respondent     Ben Dube