Walton and Australian Postal Corporation (Compensation)

Walton and Australian Postal Corporation (Compensation) [2018] AATA 4585 (12 December 2018)
Division:GENERAL DIVISION
File Number(s): 2016/2167 & 2017/2981
Re:Mr Campbell Walton
APPLICANT

AndAustralian Postal Corporation
RESPONDENT

DECISION
Tribunal:Ms Anna Burke, Member
Date:12 December 2018
Place:Melbourne

The Tribunal sets aside the decision under review and finds that Australia Post is liable to pay compensation in accordance with the Safety, Rehabilitation and Compensation Act 1988 for Mr Walton’s injuries resulting in his incapacity for work. The Tribunal remits the matters to Australia Post for reconsideration in accordance with this decision.
.....[sgd]........................................
Ms Anna Burke, Member
Catchwords
WORKER’S COMPENSATION – postal worker – denial of liability – whether primary injury exists or is work related – whether second psychology injury exists or is work related - whether there is incapacity leading to entitlement to medical expenses and incapacity payment – conflicting medical evidence - decision set aside
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Canute v Comcare (2006) 226 CLR 535, [2006] HCA 47
REASONS FOR DECISION
Ms Anna Burke, Member
12 December 2018

Mr Campbell Walton (the Applicant) is seeking review of a decision made by the Australian Postal Corporation (Australia Post) (the Respondent) pursuant to section 62 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). The reviewable decision affirmed an earlier determination denying liability for the injury of common extensor tendon tear/arm which developed over a period of weeks (application number 2016/2167). The Applicant also seeks review of a decision by Australia Post, which affirmed an earlier determination denying liability for the condition of adjustment disorder (application number 2017/2981).
Mr Walton commenced work with Australia Post as a Postal Delivery Officer on

10 October 2007 at Moorabbin; later working at Seaford, Mornington and Cranbourne. His job required him to sort, bundle and deliver mail. He completed his round on a motorcycle.
Mr Walton remains an employee of Australia Post but he stopped working on

22 February 2016 as he claims he is unable to travel to his current work location as he can no longer drive a car, ride a motorcycle or use public transport as a result of his injuries. Mr Walton has been a Country Fire Authority (CFA) volunteer for over 30 years, reaching the position of Crew Leader.
Mr Walton has had a series of WorkCover, Comcare and Transport Accident Commission (TAC) claims in respect of injuries:
·a September 1987 WorkCover claim for a shoulder injury whilst employed at Seppelt’s as a storeman;
·an April 2004 WorkCover claim for right knee strain sustained whilst carrying heavy objects down seven floors whilst employed at Lebour Pty Ltd;
·a May 2006 WorkCover claim for an allergic reaction from inhalation of particles spilt from delivered goods whilst working at Lebour Pty Ltd;
·a 2009 accepted Comcare claim for bilateral knee injury for which he had a left knee arthroscopic procedure (Mr Walton reported this in his history to various specialists seen as part of these proceedings);
·a 2010 accepted TAC claim for injuries sustained as a pedestrian when he was hit by a motorcycle as he walked to work. His injuries included greater tuberosity in the left shoulder joint with a shoulder dislocation, as well was sustaining left-sided facial lacerations and abrasions and a fracture to a second metacarpus in his hand. These injuries resulted in about 12 months off work; and
·an August 2012 accepted Comcare claim for soft tissue injury of his right hand, right elbow, right knee, right chest, fracture of seventh rib and mechanical low back injury as a result of a fall from his bike whilst delivering mail.
On 2 December 2015, Mr Walton attended his general practitioner, Dr Rudiger, who noted:
Consultation
He has had pain R elbow over 2 week on lifting main out o bag
Pain on trowitng mai and gripping his bike brake
Examination
Has grop pan has tneder spit over lateral epicondyle has nil swelling
Can do alt duties and sue left arm more but avoiud forsed of R arm in grupin and wrst extension
Diagnosis
Moderate, Acute Right Tennis Elbow
On 3 December 2015 Mr Walton completed a Health and Safety Incident Form. The form was tendered by the Applicant at the hearing and is stamped Cranbourne DC Delivery Manager 3 Dec 2015. The form states – tear in tendons of elbow – developed over period of time in course of regular duties.
On 21 December 2015 Mr Walton submitted a claim for compensation under the SRC Act. In the claim he stated that the type of injury was Common extensor tendon tear which developed over period of weeks.
On 20 January 2016 Australia Post determined it was not liable to pay workers compensation under section 14 of the SRC Act in respect of the claimed condition as it was noted:
You commenced working for Australia Post on 10 October 2007, approximately 8+ years.
You have been a volunteer firefighter at Carrum Downs for approximately 20 years.
The information contained on your file indicates you failed to report your injury immediately and also failed to lodge an incident report as soon as practicable.
…
Based on above, I have failed to establish that your employment contributed to a significant degree to your claimed injury.
On 23 February 2016 Australia Post affirmed the determination of 20 January 2016 to deny liability for the claim. The reviewer noted that after considering all the facts and issues raised in the reconsideration request they considered that the primary delegate had arrived at a reasonable decision and stated:
Mr John Miller, delivery manager Cranbourne DC, provided a statement dated 22 February 2016 advising that you had 25 November 2015 off work on community service leave, advising that you were required in your capacity as a member the CFA and was part of a strike team. He stated that you later advised that you were unlucky not to go to Adelaide to fight fires as another team have been selected to travel there.
This statement appears to cast doubt regarding the rest of your claim that you have not been engaged in an active role as a member of the CFA brigade.
Further, you have submitted that the pain in your right elbow was of gradual development and it was not until after you attended your doctor on the 2 December 2015 that you submitted an incident report, and advised your manager of your claimed condition. Your delay in reporting symptoms and continuing to perform your normal duties in the period predating your report of injury denied Australia Post the opportunity to contemporaneously investigate whether or not your claimed condition were causally related to employment with Australia Post.
You have not identified a specific incident or injury is the cause your claimed condition, but rather related your symptoms to all duties associated with being a postal delivery officer, duties that you have performed for a number of years without reporting any injury concerns.
I acknowledge that Dr Rudiger has reported that the condition affecting your right elbow developed gradually on lifting mail at of bags and steering the motorbike; however, I am not satisfied that such evidence is sufficient to establish that the right elbow condition now diagnose arose out of, or in the course of, your employment with Australia Post, as defined in section 5A of the Act. Nor am I satisfied that such evidence is sufficient to support that your employment with Australia Post has contributed to a significant degree to your diagnose condition, as defined in section 5B of the Act. I make this decision on the basis that no specific incident or injury has been reported as the cause of your claimed condition.
In the absence of a specific incident or injury, I am not satisfied that merely experiencing symptoms while at work and performing work responsibilities is sufficient to establish an injury has been sustained for the purposes of section 5A or 5B of our Act.
On 22 April 2016 Mr Walton’s legal representative lodged an application for review with the Administrative Appeals Tribunal stating: The respondent’s decision dated 23 February 2016 is wrong at law is against the weight of evidence. The applicant is entitled to compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988.
On 26 August 2016 Dr Craig Smith, general practitioner, diagnosed Mr Walton as suffering from R lateral epicondylitis and adjustment disorder.
On 16 February 2017 Australia Post denied liability to pay compensation in respect of any psychological condition pursuant to sections 14, 16 and 19 of the SRC Act. The Claims Manager noted:
Your doctor, Craig Smith issued a medical certificate on 26 August 2016 on which he gave an additional diagnosis of adjustment disorder. Dr Smith referred you to a psychologist for treatment.
Medical certificates issued for 26 August 2016 have been issued in respect of a right lateral epicondylitis condition.
Liability for your condition of “Common Extensor Tendon Tear Right Arm” was denied on 20 January 2016. The adjustment disorder was diagnosed on 26 August 2016, several months later. However it appears that your doctor is inferring that your adjustment disorder relates directly to your claim right elbow condition.
On viewing your leave records it is evident that you have been absent from employment for extended periods before and after 26 August 2016.
Considering that liability for the right elbow condition was denied on 20 January 2016 and the adjustment disorder was diagnosed several months later, I cannot establish that any current psychological injury for which you are claiming compensation benefits, arose out of, or in the course of, your employment with Australia Post as a postal delivery officer, as required by S5A of the Act.
On 23 March 2017 Australia Post affirmed the determination of 16 February 2017 to deny liability for the claim. The reviewer noted that after carefully reconsidering the determination, they were satisfied that the decision to deny liability in relation to Mr Walton’s claim of compensation for adjustment disorder, secondary to his claim for common extension tended tear right arm was correct. The reviewer found that they were not satisfied that Mr Walton suffers a psychological condition that was caused by, or significantly contributed to by his employment with Australia Post.
On 19 May 2017 Mr Walton’s legal representative lodged an application for review of this reviewable decision l with the Administrative Appeals Tribunal stating: The respondent’s decision dated 23 March 2017 is wrong at law is against the weight of evidence. The applicant is entitled to compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988.
Both applications were heard together on 9, 10, 11 and 12 October 2018. At the hearing Mr Walton was represented by Mr Mark Carey of counsel, instructed by Mr Tim Dionyssopoulos of Maurice Blackburn. Australia Post was represented by Mr Mark Seymour of counsel, instructed by Ms Leanne Kellett of Australia Post.
The Tribunal was provided with documentation pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T‑Documents and Supplementary T-documents) photographs and CCTV footage. The Applicant tendered several medical reports and statements. The following persons gave oral evidence at the hearing: Mr Campbell Walton; Dr Nigel Strauss, consultant & occupational psychiatrist; Mr Thomas Kossmann, orthopaedic surgeon; Dr Tony Kostos, rheumatologist; Dr Kruk, consultant psychiatrist; Associate Professor George Mendelson, consultant psychiatrist; and Dr Craig Smith, general practitioner.
ISSUES
The Tribunal needs to consider the following relevant issues:
·     has Mr Walton suffered an injury/disease?
·     if so, has his employment at Australia Post contributed to that condition or the aggravation of that condition to a significant degree? And
·     if so, is Australia Post liable to pay compensation?
LEGISLATION
Relevantly, section 14(1) of the SRC Act provides that, , Comcare is liable to pay compensation 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 defines an ailment to mean any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development. Relevantly, the interpretative provision at section 4(1) provides that the words injury and disease have the meanings detailed in sections 5A and 5B respectively of the SRC Act as follows:
5A Definition of injury
(1)       In this Act:
injury means:
(a)       a disease suffered by an employee; or
(b)       an injury (other than a disease) suffered by an employee, that is 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), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
...
5B Definition of disease
(1)       In this Act:
disease means:
(a)       an ailment suffered by an employee; or
(b)       an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2)       In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)       the duration of the employment;
(b)       the nature of, and particular tasks involved in, the employment;
(c)       any predisposition of the employee to the ailment or aggravation;
(d)       any activities of the employee not related to the employment;
(e)       any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3)       In this Act:
significant degree means a degree that is substantially more than material.
Section 16 of the SRC Act states:
16 Compensation in respect of medical expenses etc.
(1)Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
(2)Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.
…
THE TRIBUNAL’S CONSIDERATION AND FINDINGS
Evidence before the tribunal
Mr Walton
Mr Walton provided a statement dated 15 February 2018 and gave oral evidence at the hearing. At the hearing, and in his statement, Mr Walton described his normal working day, which required him to sort, bundle and deliver mail. Most days he commenced work at 6:30am. His day began with sorting mail. The mail came to the deliverers either in trays or in tubs. The trays weighed approximately 5 kilograms, whilst tubs weighed between 10 and 20 kilograms. Mr Walton then placed the trays and tubs at his sorting frame and did what was known as throwing off the mail, on average he sorted and threw off around 2000 pieces of mail each morning, although it sometimes varied in amount.
Once the mail was sorted, he then had to do what was known as clear down the sorting frame. This involved removing the mail from the sorting frame, placing it into bundles and then into satchels. The mail in the bundles was secured with rubber bands (eventually these were replaced with Velcro straps.) He advised that he had to use force to secure the Velcro straps and that he would do this around 20 to 30 times a day.
Once the mail was bundled, Mr Walton would put the bundles of mail into either depot bags for collection along his route, or directly into the panniers, which he then attached to his motorcycle. He then went out on his round to deliver the mail. He said that he predominantly reached into the panniers with his right hand to retrieve bundles of mail and used his left hand to the deliver the mail into the appropriate letterboxes. He advised that the motorcycle he rode was equipped with a right hand and right foot brake. He said that when he was on his mail route he used both these brakes equally and often used them at the same time. Therefore, most of the braking he did utilised the right hand brake. He advised that the right hand brake on his motorbike required a lot of force to use.
Mr Walton described two instances in which he experienced discomfort in his right elbow. The first occurred on or about 13 November 2015 when he was removing the pannier off his motorbike. He described it as being quite difficult. He had pulled the panniers with considerable force, so much so that he lifted the motorcycle off the ground. He then kicked the metal rod attaching the panniers to loosen them and was then able to lift the panniers from the motorbike. He stated that this had put enormous strain on his right elbow. He stated that he reported this to the supervisor on the same day it happened. As it was a Friday, his superior advised him to see how his elbow went over the weekend. He returned to work on the Monday without pain or stiffness.
The other instance took place on or about 2 December 2015, when Mr Walton noticed discomfort and pain again in his right elbow during the course of the day. He said that on this particular day, at the end of his round when he had to travel some distance back to the Cranbourne site, he noticed he had real trouble gripping with his right hand. The pain and discomfort he was experiencing in his right hand from his elbow was causing him a real problem. When he returned to the site he spoke to the supervisor and agreed that he would go and see his doctor as soon as possible. He stated he was very happy that he got to see his doctor that night. The doctor referred him to physiotherapy and placed him on restricted duties. Mr Walton stated his doctor told him that he thought that his elbow injury was work-related. That night he sent his supervisor a text advising him of what his doctor said and the next day he rang Australia Post who arranged a taxi for him to attend work where he completed and submitted a Health and Safety Incident Form.
Mr Walton advised the Tribunal that following this incident he could no longer ride his motorcycle to work, so Australia Post provided him with taxi vouchers for six weeks. He then travelled in with a co-worker for several weeks but this stopped. He could no longer travel to work; so he has not attended work since. During this period he attempted to utilise public transport on two occasions to get home from work. On both occasions he got the bus. On the first occasion he could not get a seat and when the bus stopped suddenly he threw out his right arm to stop himself falling. When he did this he felt a shooting pain in his right arm and has been extremely fearful of utilising public transport ever since.
Mr Walton repeatedly told the hearing he has an extreme fear of using public transport. He stated that he now avoids using public transport. But as he can no longer ride his motorcycle, and does not have a working car, he cannot avoid public transport altogether. If he has to use public transport he does so at times he knows he will be able to get a seat, such as very early in the morning.
Mr Walton was seen at the hearing and on the video evidence to be using a walking stick. He said he had adopted the stick not to assist with his mobility but to protect his arm. He stated the he found that if he is using the stick he does not have his hand free to throw out to grasp things to hold onto. He found this of benefit when he is has to use public transport.

Mr Walton said that sometime in 2016 he discussed with his general practitioner, Dr Rudiger, the impact his right elbow injury was having on his life. In particular, how he could not work, do any of his recreational activities or assist at home. This was causing him great anxiety, particularly the fear of using public transport and risk of re-injury. Mr Walton described himself as sad, teary and lacking motivation. He also stated that he had trouble sleeping and was short-tempered. He was referred to a psychologist and eventually a psychiatrist. He continues to access these services under a mental health plan. He told the Tribunal that he discussed with his psychologist how his injury has impacted his life, his anger towards Australia Post at the mishandling of his injury, and the lack of progress towards resolving his injury and returning to work.
Mr Walton told the Tribunal on several occasions, that he had not been able to access physiotherapy services which would have provided a guided rehabilitation program that would have helped him return to work as he had in the past with previous injuries. He said he had attempted activities at home, such as using a hand saw, to see if he could achieve a level of functionality, however, to date, his attempts had failed; not assisted by the fact he was doing this without professional oversight. Mr Walton stated that he did not have confidence in how far he could push himself without professional advice. He stated he had never been able to test his injury under controlled circumstances or supervision, to push it so that he could see what was possible.
Mr Walton continually stated he has no clear idea what his actual injury entails. He said that he has been advised that he needs an MRI and to see an orthopaedic surgeon to be clear about his injury and what treatment was or was not available. He said he did not know what he could or could not do, did not have the confidence to attempt things without full knowledge of his injury and using public transport exposed him to too much risk as he just did not have enough information. He said he does the things he can, but he knows there is always a risk. He said that it might be hanging by a thread or I could be told you are silly bugger just live with the pain.
Mr Walton described his current elbow pain as Improved immensely from what it was like three years ago but it has not gone. He said he has intermittent twinges in his right elbow. He acknowledged that he is not in screaming pain but that it is not quite right. He hoped that he would be able to get on with his life, back to work, back to fixing cars, playing guitar and volunteering with the CFA. He also hoped his elbow would improve. He acknowledged that his general practitioner, Dr Smith, issued a medical certificate on 27 February 2018, which indicated that his intermittent right elbow pain had resolved. However, Mr Walton said that he did not agree that it had completed resolved; but acknowledged that his greater concern at present was his anxiety and fear of re-injury.
Under cross-examination, Mr Walton was asked about his numerous work-related injuries, subsequent claims, visits to his general practitioner and his recreational activities outside of work. Mr Walton repeatedly told the Tribunal he could not recall his numerous WorkCover claims and he simply had no recollection of the majority of his visits to his doctor. He did however have an extensive knowledge of his recreational activities. Mr Walton did indicate a consistent pattern of displeasure at the treatment he received from numerous employers and his consistent concern with their approach to occupational health and safety issues.
Under cross-examination, Mr Walton was asked about his consultations with his general practitioner, Dr Rudiger, from 2013 to 2016, where the doctor’s notes record numerous entries about Mr Walton’s feelings of stress, conflict and frustration with his workplace, so much so that he did not feel safe going back to the workplace. Mr Walton said these entries all predate his injury in December 2015. Mr Walton indicated that he felt under siege at work, was dealing with a rat pack mentality, and with unsupportive management. He felt very aggrieved when he was moved from Seaford to Cranbourne. He preferred working at Seaford because he could walk to work and it was close to his elderly parents. He felt he had been victimised for raising concerns over occupational health and safety issues.
Under cross-examination, Mr Walton was asked about a pre-placement medical assessment form he completed in 2007, prior to his employment with Australia Post. Mr Walton was adamant that he had not deliberately misled Australia Post in respect of his answers to numerous questions. In particular, question 11, where he said that he had no work restrictions certified by a doctor; question 13, were he said he had no numb fingers or hands; and again, at question 23, where he said that his shoulder was not sore now. Mr Walton said that he had sought legal advice at the time he was filling in this form and his legal advisors had indicated all his answers were correct at law. Further, that when he said at question 10 that he was not undertaking a rehabilitation program that was accurate, as he was unemployed at the time and had done a course while unemployed but not as part of a rehabilitation program. Mr Walton indicated that he had been unemployed for a considerable time and had found that his previous WorkCover claims had made it difficult for him to find employment.
Mr Walton also described his feelings of victimisation over his involvement with the CFA, in the workplace and in respect of the rejection of his claim. He stated that using his CFA involvement against him was outrageous.
Video Evidence
A 15-minute video of Mr Walton was tendered and viewed during the hearing. The video showed him mowing the lawn at the front of his family home on the

29 September 2018, and then walking towards his home at 8:36am on 2 October 2018.
Medical Evidence
Diagnostic Studies
The following diagnostic studies were referred to by the parties during the course of the tribunal hearing:
·A right elbow x-ray dated 7 June 2016 reporting: no acute bony lesion or fracture noted. Alignment is normal and the articulated margins are smooth with maintained joint space. There is no degenerative change. No joint effusion or intra-articular loose body noted.
·A right elbow ultrasound dated 7 June 2016 reporting: moderate thickening of the common extensor origin. The area is heterogeneously hypoechoic with increased internal vascularity and focal tenderness. The appearance is in keeping with common extensor origin tendinopathy. No associated tear identified. There is no associated abnormality with a common flexor origin.
·Right elbow ultrasound dated 21 July 2016 reporting: no joint effusion. Common flexor and extensor origin appear normal. Medial and lateral collateral ligaments normal. Distal biceps insertion normal. Triceps tendon normal.
·Right elbow ultrasound-guided injection dated 28 July 2016, reporting: informed consent was obtained. Under aseptic technique and ultrasound-guided 10 ml of 0.5% Marcaine was introduced around the left common extensor origin. This was followed by 2cc of Celestone injected into the common extensor origin at the site of maximal abnormality. No immediate complications were reported.
·Right elbow x-ray dated 12 May 2017 reporting: bone mineral density appears normal. No acute, displaced fracture or bony malignant. No elbow effusion. Minor enthesopathy is seen at the lateral epicondylar region of the distal humerus.
Dr Peter Rudiger, General Practitioner
Dr Rudiger was not called as a witness but numerous medical certificates, clinical notes and reports from him were tendered as part of the evidence before the Tribunal. Both parties referred to Dr Rudiger’s extensive clinical records during the hearing. In a medical certificate dated 2 December 2015, he diagnosed Mr Walton with: pain in his R arm/elbow that developed 2 weeks ago and aggravated by pulling mail out of bag, pressing bike brakes, throwing mail. He advised that Mr Walton should avoid forceful action of griping and wrist extension can use his arm for support role. He also stated that Mr Walton was in need of physio help.
Dr Rudiger provided a further medical certificate dated 14 January 2016 where he diagnosed Mr Walton as suffering from right lateral epicondylitis.
On 1 February 2016 Dr Rudiger provided a letter which certified:
I have today examined Mr Walton.
In my opinion, Mr Campbell Walton is suffering from right-sided lateral epicondylitis.
This is to confirm that Mr Walton has presented with typical history of right forearm pain and has developed gradually on lifting mail out of bag and steering his motorbike.
He was given WorkCover certificate.
Surprisingly his claim has been rejected mainly because it was not a.. incident.
This is happened without even requesting treating doctor/physio report.
Could union look at assisting Mr Walton in getting his injury treated through work.
Dr Craig Smith, General Practitioner
Dr Smith gave evidence at the hearing that Mr Walton had been his patient since 16 August 2016 when he had sought a second opinion in respect of his tennis elbow. Dr Smith stated that he been treating Mr Walton in respect of his tennis elbow and adjustment disorder. He said that Mr Walton still presented with tennis elbow in a mild form as he had described ongoing intermittent pain. Dr Smith observed it was progressing as you would expect. Dr Smith said this was not unexpected for this type of injury as it can take a long time to resolve and there was no definite time for resolution.
Dr Smith advised the Tribunal that from a medical viewpoint, there was no benefit from an MRI as it would not be particularly helpful in these circumstances. He opined that an x-rays and/or CT scans would be sufficient to diagnose the condition. The MRI would also not assist in the treatment of condition. Dr Smith stated it would only be of benefit if it was determined that surgical intervention was required and he did not believe that was the case in respect of Mr Walton’s presentation.
Dr Smith indicated under cross-examination that the primary focus of his medical consultation with Mr Walton was on his work-related injury and resulting emotional injury. The significant issues were his adjustment disorder, anger with Australia Post and fear of using public transport. Dr Smith stated that from a medical point of view, Mr Walton should be able to utilise public transport and this was certainly an ongoing discussion in their consultations. Dr Smith described Mr Walton’s fear of utilising public transport as valid, as his concern of re-injury was not imagined but real.
Dr Smith indicated that a prescription for Lexapro was appropriate as it may have offered relief from Mr Walton’s anxiety but from a therapeutic standpoint his ability to ventilate his concerns with his psychologist and psychiatrist were more appropriate. Fundamentally, it was Dr Smith’s opinion that Mr Walton required a resolution with his employer in respect of his injury in order to find any resolution to his mental health concerns.
Mr Thomas Kossmann, orthopaedic surgeon
Mr Kossmann provided a report to the Tribunal and gave evidence at the hearing. In his report of 26 May 2017 he opined that:
In my opinion Mr Walton’s employment was a significant contributing factor to his right elbow injury in the form of a tennis elbow (epicondylitis lateralis).
Mr Walton continues to suffer from discomfort in his right elbow. He also has a positive Tinel’s sign over the ulnar nerve with the sulcus ulnaris, which requires further investigation(s) with a nerve conducting study and EMG, referral to a neurologist and a pain management specialist.
From an orthopaedic for point of view, I believe that Mr Walton should be able to return to work on light duties, however there may be other issues, which prevent him from returning to work, for example his psychological/psychiatric condition. I recommended review by a psychiatrist regarding his work capacity. Depending on the outcome of further investigation, Mr Walton’s work capacity may have to be modified. I recommended an orthopaedic review of his condition in another 6 to 12 months.
In my opinion Mr Walton should be able to drive and take public transport from an orthopaedic point of view. However there may be other issues preventing him from doing so, namely I psychological overlay. Mr Walton told me that he is in constant fear of injuring his right elbow and this may have any impact on his ability to drive and take public transport.
Mr Walton’s prognosis regarding his right tennis elbow is guarded. He will require further conservative treatment with pain medication and anti-inflammatories. He may also benefit from another steroid injection into his right elbow followed by physiotherapy.
At the hearing, Mr Kossmann stated that Mr Walton needed physiotherapy to try to strengthen his upper extremities. However, this had to be with caution, as strength training, if not done correctly, could trigger the tennis elbow again, as symptoms often disappear and can come back, particularly if the wrong thing is done. The aetiology of this injury is difficult as it does develop overtime. It does not present after one incident but after an accumulation of stresses on the joint. And it was exactly as Mr Walton described, that it developed over time.
On re-examination, Mr Kossmann expanded on his report that Mr Walton’s work duties of; grasping for mail, placing his hand in the bag, braking with the right hand, reaching out and stretching to sort mail up to 1000 to 1300 times a day (which he described as a lot), would be the type of action to exacerbate tennis elbow. He believed Mr Walton had not suffered a tear but had a minor inflammatory response based on examination of his ultrasound results. He stated that he did not consider an MRI was necessary as there was no tear present, that surgery was not indicated at present, that Mr Walton’s treatment to date had been appropriate and he should be able to return to light duties at work.
Mr Kossmann said he was not a psychiatrist but that over the years he realised that an injury can be amplified if treatment is undertaken whilst there is a psychological overlay, particularly when a patient is frightened of re-injury. Under cross-examination, he advised that the previous shoulder injury, whilst not included in the history provided by Mr Walton, would not change his opinion because the shoulder is a tricky joint as there is a huge variation in presentation and can change over time. When he examined Mr Walton, he found no damage to the shoulder.
Mr Kossmann, on viewing the video evidence, said it indicated Mr Walton was not utilising his right hand but resting his right hand on the handle of the mower and utilising his left hand/arm to push and pull the mower.
Dr Tony Kostos, Rheumatologist
Dr Kostos provided a report to the Tribunal and gave evidence at the hearing. In his report of 16 April 2018 he opined that:
His elbows show a full range of pain free movements. There are no localised abnormalities on the left. On the right, he does not have any thickening or tenderness over the right lateral epicondyle, although he has some tenderness over the radial head and adjacent forearm musculature. Confirmatory testing for lateral epicondylitis with resting wrist and middle finger extension is negative on both sides. He has positive Tinel’s test over both ulnar nerves at the elbow, more so on the right.
His wrists are normal. His hands are consistent with normal use. Neurologically, his grip strength are 27 on the right and 37 on the left.
It would appear that this man has in the past being diagnosed with right lateral epicondylitis, otherwise known as tennis elbow.
He claims that his general practitioner at the time diagnosed a tear in the tendon on the basis of the clinical examination, but there was not any tear identified in the first ultrasound that he had performed, although some moderate thickening of the common extensor origin was noted.
However, interestingly, a repeat ultrasound of the right elbow two weeks later was noted to be normal, with no evidence at all of the lateral epicondylitis.
I did not find any evidence of lateral epicondylitis today on my physical examination and I note these findings are similar to those of Mr P Boyes, orthopaedic surgeon, as noted in his report dated 12 October 2016.
Therefore, if the claimant did have right lateral epicondylitis in the past, it has since resolved.
I am not convinced, on the basis of the information currently available, that this man ever did have right lateral epicondylitis, and it would seem to me that there are other issues outside the physical aspects for employment that have contributed to and precipitated the basis of his claims.
The claimant’s employment has not contributed to any ongoing aggravation.
The claimant needs to be told that he does not have right lateral epicondylitis and does not require any treatment.
There are clearly a number of other issues unrelated to his physical capabilities that prevent him from returning to work.
I do not believe that he has any physical incapacity for work or any physical incapacity precluding him from catching public transport.
The workers long-term prognosis is poor because of the nonphysical issues, to which I have referred above.
At the hearing, Dr Kostos affirmed that when he examined Mr Walton, there was no evidence of tennis elbow based on a traditional clinical examination, or any present on the most recent scans taken. He opined that if Mr Walton had ever suffered from tennis elbow, it has now resolved and that he should be able to return to work, drive and use public transport.
Dr Kostos, on viewing the video evidence, said it clearly indicated that Mr Walton was utilising his right hand and he was surprised he had no difficulty reaching into the mail box to collect the mail.
Dr Nigel Strauss, Consultant & Occupational Psychiatrist
Dr Strauss provided a report to the Tribunal and gave evidence at the hearing. In his report of 26 October 2017 he opined that:
It appears that this man may have injured his right elbow work in late 2015 I note that he is better now from the physical point of view.
However I note that he has been caught up in an industrial and compensation dispute in relation to the causation of his condition and in relation to an opportunity for him to return to work.
From a psychiatric point of view I do believe that this man has a mild chronic adjustment disorder with mixed anxiety and depressed mood, which was precipitated by his injury at work involving his right elbow in late 2015. This man’s perception of events following his injury has also significantly contributed to his adjustment disorder. He feels that he was not adequately managed by his employer and that they did not give inappropriate assistance to help him travel to and from work for long enough after he suffered the injury. It appears that Mr Walton was prepared to continue working after his injury but could not get to work and I note that it was difficult for him to catch public transport and this appears to be the case still.
I would strongly urge this man be provided with were closer to home is the does not have the travel problem to content with. I believe that this is a real issue for him and his six significantly affecting his emotional state.
If this man could be offered light duties work closer to home, I believe that he could cope and therefore from a psychiatric point of view he should be encouraged to return to work. This will improve his adjustment disorder. Nothing is being achieved by this man remaining home remaining despondent because of his compensation situation.
In summary then he is suffering from mild psychiatric condition which could be quickly remedied by appropriate rehabilitative procedures and adequate support from his employer.
From my understanding of this case it appears that he is receiving little support from his employer and I believe the general purpose of rehabilitation is to get workers back to work as quickly as possible. This does not appear to be the case with Mr Walton’s situation at the present time.

On examination, Dr Strauss agreed that it was understandable that

Mr Walton had negative views about his employers, as they were making statements overtly discouraging him from returning to work and this was completely counter-productive. He regarded a large employer such as Australia Post to have the capacity to find alternative duties for Mr Walton. He had based his report on a rehabilitative approach, as it was the best outcome for Mr Walton’s mental health to return to work and resolve the conflict with his employer.
Dr Strauss advised that he had reviewed Dr Grant’s report, knew Dr Grant well and they had arrived at the same diagnoses - of Mr Walton having developed an adjustment disorder with mixed emotional features. Dr Strauss felt that when he reviewed

Mr Walton 12 months ago, he could be rehabilitated back to work with certain conditions and, if supported by his employer, his return to work would help with his psychological state. He expressed the view that, at a simple level, the man is angry at the way he has been treated and that was fair enough.
Associate Professor George Mendelson, Consultant Psychiatrist
Associate Professor George Mendelson provided a report to the Tribunal and gave evidence at the hearing. In his report of 29 December 2017 he opined that:
Based on the history given to me by Mr Walton and my observations on mental status examination I consider that he does not have any diagnosable mental disorder. The basis for my opinion that Mr Walton does not have a mental disorder is that his emotional symptoms and my observations on mental status examination do not, in my view, meet the diagnostic criteria threshold for a finding of a specific psychiatric disorder
At the same time I accept the Mr Walton does report concerns with respect to his complaints related to his right elbow, as described above. In my view his description of feeling “wound up most the time” and becoming easily distressed by “sad” stories is due to emotional liability arising from an understandable psychological reaction to his physical complaints and his current situation.
There is no indication of any loss of work capacity as the result of any psychiatric disorder or psychiatric impairment.
I have noted above the during the examination on 18 October 2016 Mr Walton was aggrieved and resentful when speaking about the way Australia Post had managed his claim with respect to the right elbow. The clinical records obtained from Carrum Downs Medical Center, to which I referred above, also indicate that he had been complaining about the way he had been treated at work over several years prior to December 2015.
The entries by Dr Rudiger dated 19 May 2016 and 4 July 2016 had commented that Mr Walton had indicated he wanted “to cause as much publicity and damage” to his employers, and ‘to expose… work practices and fight system; union is helping”.
Mr Walton has thus manifested some of the features associated with what has been described in the pain and psychological literature as “perceived injustice” in relation to his experiences with respect to his compensation claim, and he also expressed similar sentiments in relation to early complaints about the way he was treated at work by colleagues and the way his employer had essentially ignored his complaints.
At the hearing, Associate Professor Mendelson reiterated his view that Mr Walton reported various physical and psychological symptoms but these did not amount to diagnosis of a mental illness. He said Mr Walton was obviously and fairly wound up by his perceived treatment by Australia Post but he was not suffering from any treatable mental illness. His response was an understandable reaction to his situation. He stated that his belief was that Mr Walton’s pain complaints were perpetuated by perceived disagreement or injustice with his employer because, on his assessment of medical reports provided, there was no organic basis for his pain. He could see no barrier from a mental health perspective for Mr Walton returning to work or utilising public transport.
Dr Kruk, Consultant Psychiatrist
In a report dated 12 August 2017 to Dr Smith, Mr Walton’s general practitioner, Dr Kruk opined:
There was some improvement in his right elbow pain following a steroid injection six months ago but the pain nevertheless continues and causes him a lot of distress. He is scared to use his right arm in case he aggravates the injury and constantly worries about having another accident, especially while using public transport.
He often feels tense, gets heart palpitation, ruminates about the lack of support from the Insurer and worries about his financial situation. He lives off Centrelink sickness allowance and can hardly make ends meet.
He presented as a very anxious, despondent man without suicidal thoughts.
He has an adjustment disorder.
Campbell is not interested in antidepressants nor are they likely to make much difference.
He is unfit for work on psychiatric grounds.
It is in everyone’s interest to investigate the injury and offer him treatment and physical and vocational rehabilitation.
The protracted dispute with the Insurer only prolongs his incapacity by exacerbating his anxiety and causing a fear of further injury to the right elbow. He hopes to have MRI done but cannot afford it privately.
Dr Kruk advised the Tribunal that he had read the report from Dr Chris Grant, who had diagnosed Mr Walton with adjustment disorder with mixed emotional features. Dr Kruk agreed with this diagnosis and believed it was consistent with his own. He stated that seeing the report from Australia Post indicating that they would not support Mr Walton returning to work owing to risk of re-injury would have had a significant negative on his mental well-being.
Dr Kruk advised the Tribunal that he was not sure that medication would assist
Mr Walton’s mental health condition but that the resolution of the work-related problems would certainly assist. Fundamentally, as long as the ongoing conflict with his employer and his ongoing perception of his mistreatment were present, no treatment would make any difference to his mental well-being.
THE CONTENTIONS OF THE APPLICANT
Mr Carey contended that the Tribunal’s task was to ascertain whether Mr Walton is suffering from tennis elbow, the first injury, and a secondary adjustment disorder with features of anxiety and depressed mood. Counsel asserted that there was no dispute that Mr Walton was incapacitated to engage in any work or i in any work at the same level, in accordance with section 4 (9)(a) &(b) of the SRC Act at the relevant time. Counsel contended the Tribunal should find that Australia Post is liable to pay compensation in accordance with section 14 of the SRC Act as Mr Walton suffered an injury at work which has resulted in his incapacity to engage in any work at the time.
Mr Carey argued further, that Mr Walton had sought appropriate medical treatment for his injuries, which had established that he was incapacitated to perform any work or work at the same level. That the medical evidence presented to the Tribunal had demonstrated Mr Walton was incapable of grasping and holding objects with his right hand as a result of his employment and that there was no serious evidence led which indicated Mr Walton had not suffered an injury.
Mr Carey contended that the Tribunal should rely upon the evidence of Mr Walton’s treating general practitioner at the time of the injury, Dr Rudiger, who had diagnosed that Mr Walton was suffering from right lateral epicondylitis. Counsel contended this was supported by the medical report of Dr Peter Boys, consultant orthopaedic surgeon, provided to Australia Post on 12 October 2016 in which he opined that This gentleman’s history is consistent with resolved right lateral humoral epicondylitis. No current clinical findings to suggest ongoing inflammatory change in the region of the common extensor origin. It is reasonable to believe that employment with Australia Post has contributed to the development of tendinitis of the right elbow.
Mr Carey argued that evidence of the injury was detected in the x-ray and ultrasound undertaken on 7 June 2016 which reported moderate thickening of the common extensor origin. Counsel argued that all the doctors who had examined
Mr Walton had diagnosed the same condition of right lateral epicondylitis, commonly referred to as “tennis elbow.” Additionally, they contended that the existence of the injury was further proven by the administering of cortisone injection into the affected area which had provided relief to the symptoms, thereby indicating the injury had existed.
Mr Carey then argued that the aetiology of the original injury was consistent with the progression described by Mr Walton and certainly could have arisen as a result of his employment which involved of gripping, grasping and holding when he sorted and delivered mail riding to some 1000 to1300 delivery points. There was no dispute that Mr Walton’s occupation as a postal delivery officer involved duties of a repetitive nature and that “tennis elbow” is attributable to repetitive strain placed on the joints.
Mr Carey then proceeded to describe what he referred to as the mischief in this case. Counsel argued that from the outset, Australia Post had denied the claim on the basis of a false premise, as they determined no specific incident or injury has been reported as the cause of your claimed condition. Counsel indicated that this nonsense of the need to identify an incident should not be perpetrated by insurers of long-standing, such as Australia Post. Counsel argued the SRC Act and the High Court decision in Canute and Comcare (2006) 226 CLR 535, [2006] HCA 47 (which found compensation is payable in respect of an injury not an incident) clearly identify that it is an injury suffered by an employee arising out of their employment in accordance with section 5A of the SRC Act which determines liability for compensation.
Mr Carey then argued that Australia Post added another layer of “mischief” by denying the claim on the basis of section 53 of the SRC Act as Mr Walton had not reported the injury at the earliest opportunity. Counsel argued that Mr Walton had not failed to put in a claim for the injury at the earliest opportunity because he never claimed an incident had taken place on 2 December 2015, which had led to the “tennis elbow”; but that the condition had gradually developed over time. Counsel argued the correct approach was to have considered the injury as defined in section 5A of the SRC Act, which does not refer to an incident but an injury suffered by an employee in the course of their employment. As outlined above, counsel contended Mr Walton’s repetitive duties had a cumulative effect which resulted in his injury. They his injury was not the result of a specific incident nor was it required to be so found to comply with the requirements of the SRC Act.
Counsel then proceeded to outline the next “mischief” undertaken by Australia Post in respect of denying Mr Walton’s claim, which he referred to as the false reporting of Mr Walton’s CFA activities. The indication that Mr Walton had engaged in some form of deception about the causation of his injury. The rejection of Mr Walton’s claim referred to this statement from Mr John Miller which advised:
you had 22 November 2015 off work on Community Service Leave, advising that you were required in your capacity as a member of the CFA and was part of a strike team. He stated that you later advised that you were unlucky not to go to Adelaide to fight fires as another team had been selected to travel there. This statement appears to cast doubt regarding the veracity of your claim that you have not been engaged in an active role as a member the CFA Brigade.
Counsel strenuously argued that there was no suggestion about an incident or causation of the injury, and that utilising Mr Walton’s CFA activity to deny the claim was just a lie and has been used to colour the refusal of liability.
Mr Carey argued that this inappropriate approach undertaken by Australia Post, in respect of the “mischiefs” in denying the claim, had actively contributed to Mr Walton’s secondary condition of adjustment disorder with features of anxiety and depressed mood. The false accusation of his involvement with the CFA leading to his injury had had a detrimental impact of Mr Walton’s mental well-being.
Further, Mr Carey stressed that Australia Post had compounded
Mr Walton’s adjustment disorder when Ms Alison Thunder, Senior HR Business Partner Vic/Tas Postal, provided the following statement for Mr Walton’s temporary disability claim with CommInsure: The risk of aggravation is too high so we are not willing to bring him back to work. Counsel argued that Australia Post had not contradicted this statement.
Counsel submitted that the evidence indicated he had ceased work, not because he was physically unable to undertake alternative duties or to utilise public transport, but from a psychological viewpoint because of his perception and indeed the real risk of aggravation had reinforced his disability; leading him to the view that he could not get a bus and therefore could not attend work.
Counsel indicated that Australia Post had never attempted to instigate a rehabilitation plan to assist Mr Walton to return to work, they had not formed a rehabilitation plan and that they had actually avoided doing so as they had denied that any injury existed and this again had actively damaged Mr Walton’s physical and mental health. Counsel clearly indicated that the Tribunal should consider directing Australia Post to actively engage with Mr Walton in a rehabilitation plan considering alternative duties and an alternative work location such as Seaford where he could walk to work.
Mr Carey contended that the view that Mr Walton was an unreliable witness had no bearing or relevance on the issue of his injury, as there was diagnostic proof that Mr Walton had suffered from “tennis elbow” by virtue of the ultrasound and the aetiology of the injury was consistent with his employment at Australia Post.
Counsel argued the Tribunal should find that in accordance with section 14 of the SRC Act, Australia Post was liable to pay compensation to Mr Walton for the injury he has suffered as it arisen in the course of his employment.
THE CONTENTIONS OF THE RESPONDENT
Mr Seymour contended that the Tribunal could not be satisfied that an injury has been sustained. He submitted that the credibility and veracity of Mr Walton were integral to this case and Mr Walton had shown himself not to be a credible or truthful witness, that the evidence given was evasive; and that he had indicated he could not recall important information or events. It was the Respondent’s contention that fundamentally, Mr Walton’s claimed injury of “tennis elbow” is reliant upon Mr Walton’s own admission of pain and therefore the Tribunal needs to be satisfied of Mr Walton’s credibility in order to determine that an injury had been sustained.
Mr Seymour contended that the Tribunal should rely upon the medical evidence of Dr Kostos, who opined Mr Walton never suffered from “tennis elbow.” The evidence of the other doctors could not be relied upon as they had not been provided with Mr Walton’s complete medical history. Likewise, Associate Professor Mendelson’s view that Mr Walton was not suffering from a mental health disorder should be preferred, as he was the only psychiatrist to review with Mr Walton who had access to his full medical history, including his general practitioners clinical file notes.
Mr Seymour indicated that Mr Walton presents a history of recurring injury, seeking compensation when he is dissatisfied with his workplace or employer, citing his separation from Seppelts and Pickford’s, prior to his employment at Australia Post. He submitted that his claim for compensation at Australia Post had arisen after he had been transferred, following a dispute in the workplace, which Mr Walton advised the hearing he had been unhappy about.
Mr Seymour argued that Mr Walton had failed to provide a complete history to the various treating doctors and medical experts involved in the hearing, and that he had failed to advise them of previous physical and psychiatric conditions and claims. He further contended that many of these injuries could have contributed to his current condition; and as such the Tribunal could not be confident that his employment with Australia Post has contributed to his current injuries to a significant degree.
Counsel argued that Mr Walton had failed to provide accurate information to Australia Post on his pre-placement medical assessment form; and Mr Walton, on his own admission, had sought legal advice when completing the form.
Counsel further contended that Mr Walton cites numerous incidents in respect of the injury; the faulty Velcro straps, the difficult pannier, the need to use force on his right hand brake and his statement that he had broken hard to avoid an accident. This again indicated Mr Walton was selective in his description of events as he had not referred to any of these issues on his health and safety form where he reported his injury; instead stating the injury had been gradual and arisen as part of his general postal duties.
Fundamentally, Mr Seymour indicated that there was no credible medical evidence indicating that Mr Walton had an injury of “tennis elbow” or the secondary condition of adjustment disorder. He further contended that he was an unreliable witness who was selective in the information he provided to the hearing and treating practitioners. His description of his role in the CFA and involvement in November 2015 had been contradictory and evasive.
Mr Seymour strenuously argued that the Tribunal should affirm both decisions as Mr Walton’s employment with Australia Post had not contributed, to a significant degree, to his injury.
CONSIDERATION AND FINDINGS
The Tribunal, having considered the considerable medical evidence in this matter, found that Mr Walton’s general practitioners and the majority of medical experts called in this matter had all determined that he had suffered from right lateral epicondylitis. The only dissenting opinion was that of Dr Kostos, who observed that if Mr Walton did have right lateral epicondylitis in the past, it has since resolved. Dr Kostos noted that his findings were similar to Dr Boys, opining that Mr Walton’s history was consistent with resolved right lateral humoral epicondylitis. The Tribunal was also informed by the x-ray and ultrasound of 7 June 2016, which reported moderate thickening of the common extensor origin; and by the successful outcome of the right elbow ultrasound-guided injection of 28 July 2016, which had resulted in Mr Walton experiencing relief from the condition for six months.
The Tribunal concludes that, on the weight of the medical evidence, Mr Walton had suffered from right lateral epicondylitis commencing in November 2015. However, it had resolved on 28 July 2016 when he received relief from an ultrasound guided injection. Whilst the Tribunal accepts that Mr Walton continues to report ongoing mild pain, there is no corroborating diagnostic evidence to substantiate that he continues to suffer from right lateral epicondylitis.
Mr Kossmann’s report indicated that Mr Walton had an aggravation of his condition in February/March 2017 and he is awaiting an MRI of his right elbow. As this was after 22 February 2016 when Mr Walton discontinued attending the workplace, the aggravation could not be work-related. The Tribunal also relied upon Dr Smith’s medical certificate of 27 February 2018, in which he indicated Mr Walton’s intermittent right elbow pain had resolved.
The Tribunal, referring to the weight of evidence, finds that on the balance of probabilities Mr Walton sustained the injury to his right elbow in the course of his employment with Australia Post. Mr Walton’s employment as a postal delivery officer involved grasping, throwing, reaching with his right hand, and placing force on his right hand, on a repetitive basis, would have contributed to the development of the tendinitis of the right elbow over time.

The Tribunal concurs with Mr Carey that the SRC Act does not specify that an incident must be recorded as a precursor for an injury to be compensable. The SRC Act states an injury suffered by an employee arising out of their employment. The Tribunal finds that Mr Walton’s primary injury of tennis elbow was sustained over a period of time in the course of his employment with Australia Post, based on the repetitive nature of his work and the described aetiology of such an injury by the various medical experts testifying before the Tribunal.
The Tribunal next considers the secondary injury of adjustment disorder. Again, taking into consideration the considerable medical evidence in this matter, the Tribunal finds that Mr Walton’s treating psychologist, psychiatrist and the majority of medical experts called in this matter had all determined that he was suffering from a mild chronic adjustment disorder with mixed anxiety and depressed mood. The Tribunal considered the report of Dr Grant in which he opined that Mr Walton has an adjustment disorder with mixed emotional features, of moderate severity. The report also finds Mr Walton is currently not fit for any form of paid employment on psychiatric grounds alone, because of his anger, frustration and difficulty relating without irritability. If his behaviour and conduct during this interview has any indication, he would not be fit for new employment elsewhere in my view. Dr Strauss and Dr Kruk (Mr Walton’s treating psychiatrist) concurred with Dr Grant’s diagnosis.
Whilst Associate Professor Mendelson opined Mr Walton did not have any diagnosable mental disorder, he noted that Mr Walton was aggrieved and resentful during examination when speaking about the way Australia Post had managed his claim. Observing that

Mr Walton’s description of feeling wound up most of the time and becoming easily distressed by sad stories is due to emotional liability arising from an understandable psychological reaction to his physical complaints and his current situation.
The Tribunal finds that Mr Walton’s secondary injury of adjustment disorder has arisen as a secondary complaint from his right lateral epicondylitis, in particular stemming from his perceived grievance at the way Australia Post has rejected and handled his claim. Most notably, Australia Post conflating his volunteer work with the CFA and his injury.
The Tribunal finds that Mr Walton continues to suffer from his secondary injury, as all of the medical experts called determined this condition would not be resolved until he perceived he had received a just outcome to his claim. The Tribunal finds the undisputed statement of Ms Thunder on Mr Walton’s CommInsure claim compounded the situation by indicating that Australia Post considered that re-employing Mr Walton presented a risk of aggravation; and whilst this did not confirm that Australia Post accepted liability for the injury it undoubtedly caused confusion and distress to Mr Walton.
Mr Walton appeared as an individual with a heightened sense of justice which has been tested by the apparent indifference of his current employer, Australia Post, and previous employers. Mr Walton advised the Tribunal that he was not backward in coming forwards and would certainly call out any workplace issues that put employees or the public at risk and that he was extremely conscious of occupational health and safety issues. He advised numerous treating doctors that he was angry with Australia Post, not just in respect of their treatment of his injury but as an employer. Indicating to Dr Kurk: I want to vindicate myself; I want to make it public. They’re driven people to suicide.
The Tribunal finds that Mr Walton continues to suffer from his secondary injury of an adjustment disorder but does not consider this a permanent injury, as the majority of medical experts indicated this condition could be resolved upon resolution of his conflict with his employer, with Dr Strauss noting: in summary then he is suffering from mild psychiatric condition which could be quickly remedied by appropriate rehabilitative procedures and adequate support from his employer.
The Tribunal finds that Australia Post, in accordance with section 14 of the SRC Act, is liable to pay Mr Walton compensation in respect of the injuries suffered by him in the course of his duties, which have resulted in his incapacity for work.
The Tribunal remits the matter to Australia Post to assess Mr Walton’s compensation in accordance with sections 16 and 19 of the SRC Act in respect of reasonable medical expenses and incapacity for work. In respect of the “tennis elbow” this includes the period from when Mr Walton ceased attending Australia Post up until 28 July 2016 when the injury resolved. In respect of the adjustment order this includes the period from when Mr Walton ceased attending Australia Post to the resolution of this dispute.
The Tribunal instructs Australia Post and Mr Walton to actively engage in a rehabilitation plan to assist Mr Walton to return to work and to resolve this protracted dispute in accordance with Division 3 of the SRC Act. In accordance with section 40 of the SRC Act, Australia Post must take all reasonable steps to provide Mr Walton with suitable employment or to assist Mr Walton find such employment.
Mr Walton ceased work as he claimed he was unable to travel to his place of employment because of his fear of re-injury whilst utilising public transport and his inability to ride his motorcycle. Australia Post could resolve the issue of Mr Walton’s fear of using public transport to access employment by relocating him to the postal facility which is in walking distance of his home.
Mr Walton also has an obligation under the SRC Act to assist his return to the workforce as he must undertake and complete the rehabilitation program. It would appear that a rehabilitation masterplan with goals and duties were agreed at a review in January 2016; but that Mr Walton refused to sign the plan until he had sought advice. The Tribunal has concluded that no rehabilitation has been entered into by Mr Walton nor progressed by Australia Post.
The Tribunal observes that Australia Post and Mr Walton had not engaged in a constructive process to resolve this protracted dispute. Further, the Tribunal observes that Australia Post dealt with Mr Walton’s intransigence in respect of his views about workplace health and safety by not addressing his issues but moved him around numerous facilities. Mr Walton also appeared to be uninterested in working with his employer or colleagues to achieve a resolution to his conflict, viewing their approach as not up to his standard and maintaining a perception that he was being victimised for drawing attention to areas of genuine concern.
CONCLUSION
The Tribunal sets aside the decision under review, finding Australia Post is liable to pay compensation in accordance with the SRC Act for Mr Walton’s injuries resulting in his incapacity for work. It remits the matter to Australia Post for reconsideration in accordance with this decision.

I certify that the preceding 101 (one hundred and one ) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke, Member:

[sgd].......................................................................
Associate
Dated: 12 December 2018

Dates of hearing: 9 – 12 October 2018

Counsel for the Applicant: Mr Mark Carey

Solicitors for the Applicant: Mr Tim Dionyssopoulos, Maurice Blackburn

Counsel for the Respondent: Mr Mark Seymour

Solicitors for the Respondent: Ms Leanne Kellett, Australian Postal Corporation

[2018] AATA 4585

12 December 2018

Key Legal Topics

Areas of Law

Employment Law

Statutory Interpretation

Legal Concepts

Causation

Duty of Care

Remedies

Statutory Construction

Appeal

Dates of hearing:	9 – 12 October 2018
Counsel for the Applicant:	Mr Mark Carey
Solicitors for the Applicant:	Mr Tim Dionyssopoulos, Maurice Blackburn
Counsel for the Respondent:	Mr Mark Seymour
Solicitors for the Respondent:	Ms Leanne Kellett, Australian Postal Corporation