Wright and Australian Postal Corporation
[2004] AATA 436
•3 May 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 436
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2002/117 and W2003/143
GENERAL ADMINISTRATIVE DIVISION ) Re BRUCE WRIGHT Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Mr M Allen, Member Date3 May 2004
PlacePerth
Decision The decision of the Tribunal is that:
(a) In matter W2002/117 the reviewable decision made on 11 February 2002 (affirming the determination of 11 December 2001 to cease liability under s 14 of the Safety, Rehabilitation and Compensation Act 1998) is set aside. The determination of 11 December 2001 to accept liability in respect of epicondylitis of the left elbow remains. The respondent shall pay the costs of this matter incurred by the applicant to be determined in accordance with the Tribunal’s General Practice Direction.
(b) In matter W2003/143 the Tribunal affirms the decision made on 7 March 2003.
............(sgd M Allen)......................
Member
CATCHWORDS
WORKERS COMPENSATION – applicant suffered work injury to left elbow causing epicondylitis – initial acceptance of liability then determination to cease liability for left elbow condition - subsequent claim that epicondylitis suffered to right elbow because of over-use of right arm when favouring left arm –– denial of liability for right elbow condition – decision to cease liability in respect of left elbow beyond power – decision set aside - finding that applicant did have epicondylitis of right elbow –finding that condition of right elbow was an ailment and was contributed to a material degree by work – finding that no incapacity for work and no impairment – finding that, for right elbow condition, respondent is not liable under s 14 of Safety, Rehabilitation and Compensation Act 1988 to pay compensation in accordance with that Act
Administrative Appeals Tribunal Act 1975 s 37
Safety, Rehabilitation and Compensation Act 1988 ss 4, 14, 16, 19
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
Telstra Corporation v Barrow (1994) 19 AAR 523
Re Halliday and Comcare (1994) AAR 431, Q93/92 AAT 9387
Rosillo v Telstra [2003] FCA 1628
Lees v Comcare (1999) 56 ALD 84; (1999) 29AAR 350
Australian Postal Corporation v Oudyn (2003) 73 ALD 659
Australian Postal Corporation v Burch [1988] FCA 944, (1988) 85 FCR 264
REASONS FOR DECISION
3 May 2004 Mr M Allen Member 1. These proceedings concern reviews of decisions made in relation to injuries alleged to have been suffered by the applicant in the course of his employment as a Postal Delivery Officer (PDO) with the respondent. Proceedings W2002/117 concern a decision made in relation to the applicant’s left elbow and proceedings W2003/143 concern a decision made in relation to his right elbow.
2. The proceedings were heard together and the applicant was represented by Mr Prast. The respondent was represented by Ms Giles of counsel. The Tribunal received into evidence the documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T documents”) in relation to both proceedings. The T documents for proceedings W2002/117 will be referred to as LT1-LT21 and the T documents for proceedings W2003/143 will be referred to as RT1-RT18. Other documentary evidence before the Tribunal were exhibits A1-A4 tendered by the applicant and R1-R11 tendered by the respondent. Exhibit R5 is a bundle of documents consisting of 145 pages and the pages will be referred to as R5.1 - R5.145.
3. Oral evidence was given on behalf of the applicant by the applicant and Dr Ng, and for the respondent by Drs Edibam and Low, and Mr Anthony Fulton and Ms Bronwyn Harmsen, both officers of the respondent.
Background
4. The background of the matter is that the applicant was employed as a PDO from 28 September 1999, initially part time for about one year but thereafter full time. His duties included the sorting of mail, which involved gripping a bundle of mail with his left hand and sorting individual envelopes into slots for each address to which the mail would subsequently be delivered with the right hand. The mail in each slot would then be “pulled down” and an elastic band placed around it. The second aspect of the job involved delivery of the mail to houses riding a motor cycle. This involved using the right arm and hand for the accelerator and brake levers, and the left arm and hand for delivering the mail into letterboxes. The applicant worked as a PDO until March 2003 when he became an Administrative Officer. At the time of his engagement as a PDO the applicant was also a part time university student, completing his degree in June 2002.
5. It was not in dispute that the applicant had an accident while riding his motor cycle on 29 August 2001, when his motor cycle slipped and landed on the left side. The applicant saw his general practitioner (Dr Meyerkort) that day, who recorded (LT5) his findings as being: “superficial abrasions. ? mild (L) ankle sprain, mild neck strain”. The applicant was assessed as fit to return to pre-disability duties but requiring treatment, namely medication.
6. On 30 August 2001 the applicant saw Dr Low, who is an occupational physician and consultant to the respondent. Dr Low recorded (LT6) that the parts of the body affected were “left knee, ankle; left elbow; ? neck” and noted “soft tissue injury, acute tennis elbow?”. Dr Low certified the applicant as able to work unrestricted hours but was required to vary posture “as required”, was not to lift in the “palms-down” position and was to pick up small stacks of letters only. He was to take regular short stretch breaks of 1 minute every 20 minutes. These restrictions were to last for one week until his next review. It appears that the applicant was employed on alternative duties for 4 days before returning to normal duties.
7. On 31 August 2001 the applicant completed an incident report form (LT3) in which he described his motor cycle landing on its left side and his symptoms as “light sprain knee, elbow, ankle, laceration hand, fingers, knee”.
8. On 25 October 2001 the applicant lodged a claim for compensation under the Safety Rehabilitation & Compensation Act 1988 (“the Act”) (LT4) in which he described the injury sustained as “upper limbs – RSI” which were said to be attributable to the accident on 29 August 2001. In that claim form the applicant authorised doctors who had treated him for “elbow, shoulder, knee, ankle laceration and strain on 29.8.01” to provide the respondent with information.
9. By letter dated 11 December 2001 to the applicant (LT14) a delegate of the respondent advised that he had determined to “…[accept] liability under section 14(1) of [the Act] for “soft tissue injury to [left] knee and ankle and [left] elbow medial/lateral epicondylitis” with the date of injury being 29 August 2001. However, by the same letter the delegate advised that he had also “…determined in accordance with section 14(1) of [the Act] that [the respondent] will no longer be liable to pay compensation for your claim, in respect of incapacity and medical treatment on and from 8 November 2001.” The applicant was informed by the same letter that “any reasonable medical expenses for your accepted work related condition would be considered for payment in accordance with section 16” of the Act and that “future accounts submitted for payment or reimbursement [should] clearly indicate that the treatment was for your work related condition.”
10. The applicant informed the respondent on 20 December 2001 (LT16) that he intended to seek a reconsideration of the decision and that he would forward further medical advice as soon as possible. This was done during January 2002 and on 11 February 2002 a delegate of the respondent reconsidered the earlier determination and affirmed it, advising the applicant (LT19) that he found that the respondent was “no longer liable to pay compensation in respect of your claim dated 29 August 2001 (sic).”
11. In relation to the right elbow, the applicant lodged an incident report form (RT3) dated 18 June 2002 which described his symptoms as “lateral epicondylitis to right arm”. The incident was said to have occurred on 8 September 2001 at 5.00am and the applicant’s description of how the incident happened was “slowly came on. Pain through right elbow and forearm extending to the hand Re: Dr Ng’s report”. The reference to Dr Ng’s report appears to be a reference to a report dated 8 April 2002 (LT20) to which further reference will be made later in these reasons.
12. The applicant also completed a claim for compensation in respect of the right elbow on 18 June 2002, describing the injury, the date it occurred, and how it came on slowly in the same terms (RT4). The respondent obtained a variety of medical advice concerning the claim and by letter dated 30 January 2003 (RT15) a delegate (after setting out paragraphs (b) and (c) of the definition of injury in s 4 of the Act) advised the applicant that he had concluded that he was “…not satisfied that you are suffering from right elbow epicondylitis (or right “tennis elbow”) as claimed, and I am not satisfied that your right elbow symptoms have arisen out of or in the course of, your employment, but are more likely to be related to an anatomical variation…. Therefore in accordance with section 14(1) and all other sections of [the Act], I determine that liability for your compensation claim dated 18 June 2002 is denied and [the respondent] has no liability to pay compensation to you pursuant to any section of the Act.”
The applicant’s solicitors requested a reconsideration of that decision on 17 February 2003 and on 7 March 2003 a delegate reconsidered the decision and affirmed it.
13. Section 14 of the Act relevantly provides that the respondent will be “liable to pay compensation in accordance with this Act in respect of an injury suffered by [the applicant] if the injury results in incapacity for work or impairment”.
14. Section 4 of the Act provides definitions for various terms unless the contrary intention appears. The following definitions are relevant to the present case:
"injury" means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
"disease" means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation.
"ailment" means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
“impairment” means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
15. Under s 16 of the Act the respondent would be liable to pay the costs of reasonable treatment obtained in relation to an injury. Under s 19 the respondent would be liable to pay to the applicant, if he is incapacitated for work as a result of an injury, weekly payments of compensation.
16. Although the applicant contended that he was entitled to be compensated pursuant to ss 14, 16 and 19 of the Act in both proceedings, no specific claims had, at the time of the two reviewable decisions or since, been made under ss 16 or 19 and no decisions made to reject any such claims. The applicant’s final written submissions (at para 12) state that the applicant seeks acceptance of liability to enable him “…to accommodate work restrictions…and medical and other expenses which he has incurred”.
The left elbow
17. The determination of 11 December 2001 set out at [9] above, after accepting liability, purported on the one hand to “cease liability” under s 14 in relation to weekly compensation and medical treatment but, on the other hand, left open the possibility of future claims under s 16 in respect of medical expenses. The acceptance of liability must be taken to be an acknowledgement that the applicant did suffer an injury within the meaning of s 4 that resulted in either an incapacity for work or an impairment (or both) and the attempt to cease liability seems to have been based on the view that any continuing condition was not attributable to the August 2001 accident and, therefore, presumably, no longer arising out of or in the course of employment. Although the respondent left open the possibility of future claims under s 16 of the Act in respect of medical expenses, the specific reliance on s 14 of the Act means, in my opinion, that the reviewable decision was an attempt to determine that the respondent had no future liability in accordance with s 14 of the Act.
18. As Madgewick J pointed out in Rosillo v Telstra [2003] FCA 1628 at [16], the interrelationship of s 14 and the other compensation provisions of the Act has been explained by the Full Federal Court in Lees v Comcare (1999) 56 ALD 84; (1999) 29 AAR 350 and Cooper J in Australian Postal Corporation v Oudyn (2003) 73 ALD 659. Those cases are authority for the proposition that the Act does not contemplate the making of a determination under s 14 that liability ceased on a particular date and excludes future liability – once a liability under s 14 has properly arisen and a determination made to accept a claim.
19. In the present case no issue has ever arisen, or determination made, that any of the elements identified by the Full Court in Lees had never existed such that there had never been any liability under s 14 in respect of the applicant’s left elbow. Accordingly, in my opinion, by purporting to cease liability under s14 the respondent acted beyond power and the decision made on 11 February 2002 to affirm the determination made on 11 December 2001 must be set aside.As a consequence, any claims that the applicant may make in future in respect of his left elbow injury under sections of the Act such as ss 16 or 19 will need to be addressed by the respondent as and when they arise. Whether such claims would succeed is not something that can be determined in these proceedings.
The right elbow
20. The outcome set out above is not, however, applicable equally to the position of the applicant’s right elbow. The condition for which compensation was claimed was said to be the result of the applicant having to use his right arm excessively, because he was favouring his left arm, thereby causing epicondylitis to the right elbow. There has been a denial of liability under s 14(1) of the Act and other sections. As noted at [16] above, the applicant’s concerns are focussed on acceptance of future liability rather than in respect of past rejected specific claims for compensation. The principal issue for determination is whether the respondent has any liability pursuant to s 14 to pay compensation, in a general sense, in accordance with other provisions of the Act in respect of the right elbow.
21. Of the five elements involved in a determination concerning liability under s 14 referred to by the Full Court in Lees at [35], no issues have arisen between the parties in relation to three of them, namely that a notice of injury was given; a claim for compensation was made; and that the applicant was an employee of the respondent. Those elements can be taken to have been established.
22. What remained in dispute between the parties was whether the applicant suffered an injury within the terms of s 4 of the Act and whether that injury resulted in incapacity for work or impairment. From the terms of the determination set out at [12] above it would seem that the respondent made its decision having regard only to paragraphs (b) and (c) of the definitions of “injury” in s 4 of the Act. The respondent’s final submissions adopted a similar approach, making no reference to the “disease” provisions in the definition of injury. The applicant’s final submissions did not focus on the specific components of the definition of injury. In the circumstances, I do not see any reason why the disease provisions should not be taken into account when considering the applicant’s condition in terms of s 14. I turn then to consider the evidence.
The documentary evidence
23. Dr Low’s notes, made when he saw the applicant on 30 August 2001 (R7), record that the applicant had a full range of movement in his left elbow and made no reference to the right elbow. On 6 September 2001 when he saw Dr Low the applicant said that he had no problems except that his left elbow was sore when gripping large stacks of mail or bending, but he was coping with full duties. Dr Low recorded that the left elbow tested positive to provocation tests for the medial and lateral epicondylitis. The applicant saw Dr Low again on 10 September 2001, which was a Monday. He reported to Dr Low that he had noticed increased pain in the left wrist and left elbow over the weekend, which he attributed to exercises that he had started doing on the previous Friday. He referred to the fact that he had done 5 hours study over the weekend in preparation for an exam on that day. He had woken up on the Monday morning with a sore left wrist and elbow, but that they had improved by the time he saw Dr Low. Dr Low recorded that the left medial and lateral epicondyles and forearm extensor muscles were tender to palpation and that distraction and simulation tests were positive. The applicant again saw Dr Low on 27 September 2001, reporting that the left elbow had flared up and that he also experienced discomfort in the medial epicondyle of the right elbow and pain to the back of the right wrist. These were intermittent and dull rather than sharp. He was fully functional and continuing with his full duties at work. Dr Low recorded (R7) that there was a full range of movements (that were painless), full power and full grip to both wrists, that there was a full range of movement in both elbows, and that provocation tests for the lateral and medial epicondyles of both elbows had proven negative.
24. When Dr Low saw the applicant again on 8 November 2001 he complained of soreness in the left elbow (around the medial epicondyle), which was more noticeable with any gripping activity, especially writing, and which was improving. The applicant also complained of right elbow (medial and lateral epicondyle) and right wrist discomfort that was more noticeable with prolonged sorting of mail. He told Dr Low that he had woken that morning with pain but was doing his full duties –albeit at a slower pace - and was undertaking stretch exercises every half hour. He told Dr Low that he was preparing for exams at the time, which mainly involved computer work, and that he was not kayaking, kickboxing and mountain bike riding because of the elbow symptoms. Dr Low recorded the impression that the applicant was a “vague historian” on that visit. Dr Low recorded that there was painless full power to resisted movements in the left elbow and left wrist, and that the lateral epicondylitis provocation test was negative for both the left and the right elbows. On palpation Dr Low found tender extensor muscles in both forearms and both medial epicondyles were tender. In a certificate provided to the respondent dated 8 November 2001, which related to both elbows, Dr Low certified the applicant as fit for unrestricted hours without any work restrictions other than “regular short stretch breaks” with a further review in 12 weeks.
25. In a report dated 5 December 2001 (LT 13), which was prepared in response to a request from the respondent following receipt of the applicant’s (left elbow) compensation claim of 25 October 2001, Dr Low expressed the opinion that the applicant suffered from an acute left lateral epicondylitis in the 29 August 2001 accident but that his opinion was, based on information obtained during subsequent consultations, that the left lateral epicondylitis had resolved by that time. In answer to a question of whether the condition had arisen from the applicant’s “recreational, home or leisure” activities Dr Low said that because the complaints originated from the acute injury in August 2001 his opinion was that the left lateral epicondylitis arose out of his employment, specifically the August 2001 injury. Dr Low also opined that the applicant “continued to suffer from very non-specific symptoms and signs related to his upper limbs, which … are not attributable to any specific diagnosable medical condition and not related to the accident on 29 August 2001.”
26. It was, essentially, on this report from Dr Low that the respondent relied when making the determination of 11 December 2001 and the affirmation of it of 11 February 2002 regarding the left elbow.
27. Dr Low saw the applicant again on 31 January 2002 and his notes record that the applicant complained of “a lot of pain” in the left forearm and elbow after Christmas. His work methods had been assessed on 11 January 2002 and some recommendations made about how he sorted mail and rode his motorcycle. He had been on recreation leave for 2 weeks and noticed discomfort in both forearms when driving for prolonged periods. He told Dr Low that he had seen a new general practitioner (Dr Naylor) who had prescribed some new stretches and massages to the upper back and forearms twice daily. He had been back at work for only a few days after his recreation leave and had experienced no major problems and was managing without difficulty provided he did his stretches and the mail volume was not too heavy. On examination, Dr Low could find no abnormalities in the applicant’s shoulders, elbows, wrists and hands and he was certified as fit for normal duties.
28. The applicant again saw Dr Low on 14 March 2002, which Dr Low’s notes record as an “initial” consultation because it related to the applicant’s back. The notes record that the applicant noticed a gradual onset of lower back pain about 4 weeks before the consultation that was more noticeable after his delivery rounds but which settled within 2 hours of reaching home and was not noticeable on weekends.
29. Dr Naylor referred the applicant to Dr Ng, who is a specialist rheumatologist. He saw the applicant on 8 April 2002 and in a letter to Dr Naylor of that date (LT20) Dr Ng recorded the applicant as informing him that, after the August 2001 accident, “... he could not hold a large bundle of letters in his left hand whilst sorting mail because the larger the bundle the more pain he felt over the lateral epicondyle area. Also, when delivering mail he couldn’t use his left to jerk the bike up a kerb and consequently was using the right hand mainly to do this several times during his rounds. Within a month of the accident, he developed pain in the same locality on the right side.” He described “pain radiating from the lateral epicondyles down to the wrist and also slightly on the ulnar border of the forearms, sometimes radiating up the back of his triceps muscles.” Gripping the motorbike with both hands was said to accentuate the forearm symptoms and that sometimes the pain extended into the dorsal spine and neck. The symptoms were said to be not constant, appearing on working days but being minimal on days that he did not work. Dr Ng found localised tenderness over both lateral epicondyles and resisted extension of the wrists accentuated the pain slightly on the left side but not on the right. There was no significant tenderness over the medial epicondyles or in the forearm muscles. There was no soft tissue swelling and no abnormalities of the wrists, thumbs or fingers. Dr Ng expressed the opinion that the applicant had bilateral lateral epicondilytis and that the symptoms on the left side “... were precipitated by his work accident and the symptoms on the right side came on through favouring the left hand whilst manoeuvring his motorbike when doing mail rounds, especially jerking the bike up and down the kerb.” In Dr Ng’s opinion, if the applicant continued with pre-accident duties “... the symptoms would continue and may worsen if his workload increases. On the other hand, if he does alternative duties that do not require repetitive use of his upper limbs, his symptoms are likely to resolve. In my opinion his current symptoms are work related.
30. Shortly after seeing Dr Ng the applicant told Ms Harmsen (who was his rehabilitation case manager) on 10 April 2002 about the jerking of the motor bike over kerbs (R5 p30) and during April the applicant’s delivery round was changed. In May 2002 a further review of his motor bike riding technique was undertaken by a Mr McGilvray – who reported a correct posture and no sign of restricted movement from the applicant’s back or elbow problems (R5 p42). In that same month the applicant was able to complete the course work for his degree and a minor thesis was completed in June 2002.
31. After lodging the compensation claim for the right elbow on 18 June 2002 the applicant told Ms Harmsen of increased back pain from a different delivery round having increased kerbs and footpaths, but made no reference to arm or elbow pain (R5 p50). At a further meeting with Mr Lambe on 28 June 2002 reference was made to the back pain but there was no mention of arm or elbow pain (R5 p59).
32. In July 2002 the respondent referred the applicant to Dr R C Edibam, a specialist orthopaedic surgeon. In a report dated 23 July 2002 (RT12) Dr Edibam described the applicant’s history, in part, as being that although the symptoms in the left ankle and left knee settled down very rapidly, he “continued to experience pain in his left elbow, mainly felt on the lateral side of his left elbow brought on by activities such as riding for a long period of time, vacuum cleaning or driving” and that in November 2001 the applicant had noticed similar symptoms in his right elbow. Dr Edibam also recorded that the applicant noticed pain in his back in January 2002 and that by March 2002 the pain was significant, and he reported the symptoms of low back pain and right elbow pain. In relation to the applicant’s left elbow, Dr Edibam reported that “clinical examination … revealed no swelling or deformity. On palpation there was no real tenderness over the lateral epicondyle or over the supra condylar ridge. Stretching the common tendon of origin of the extensor muscles of the forearm did not produce pain, nor did resisted extension of the middle finger. He had tenderness over the muscle bellies of the forearm on the radial side along the course of the superficial branch of the radial nerve but the examination of the sensory function of that nerve showed no abnormality. The elbow joint itself was entirely normal. It was fully mobile and stable.” For the right elbow the findings were the same as on the left side. Dr Edibam expressed his conclusions as follows:
“As far as the findings of the clinical examination were concerned, I felt that his elbow pain which is similar to tennis elbow was probably not due to the common cause of a tennis elbow ie tendonitis in the common tendon of origin of the extensor muscle as he had no localised signs pointing to that pathology. He did have signs pointing to compression of the superficial branch of the radial nerve in both elbows, which would suggest that the problem is due to an anatomical variation and not due to any work caused factors.”
33. In September 2002 the applicant saw Dr JCB O’Connor, who is a specialist orthopaedic surgeon. In a report to Dr Naylor dated 16 October 2002 (RT14) Dr O’Connor recorded a history of the applicant developing left elbow pain, radiating into his left wrist, about a week after the August 2001 accident and because the applicant had tried to use his right hand more he had developed “... a similar but less severe problem ...” in his right arm some 2 months after the accident. The applicant also told Dr O’Connor that he was having difficulty lifting his motorcycle up kerbs because of low back discomfort, which was gradually improving. On examination Dr O’Connor thought that the applicant had bilateral tennis elbows with no limited movements of either elbow. He referred to x-rays taken of both elbows on 16 September 2002, which were normal. Dr O’Connor also referred to a bone scan taken by a Dr Cardaci, who had reported to Dr O’Connor on 17 September 2002 (RT13). In that report Dr Cardaci’s interpreted the bone scan as follows:
“Images of the elbows are normal. There is no objective evidence of active epicondylitis or of articular pathology.”
34. Following the determination of 30 January 2003 to deny the applicant’s claim concerning his right elbow, Dr Ng was asked by the applicant’s solicitors to comment further. In a report dated 25 February 2003 (A3) Dr Ng commented as follows:
“In my opinion [the applicant’s] elbow condition is that of a lateral epicondylitis even though provocation tests are not positive. From the history related to me regarding the circumstances surrounding the development of his elbow symptoms, I am of the opinion that his elbow disability is related to his employment.”
35. In July 2003 Dr Ng was asked to comment on the report provided by Dr Edibam. In a report dated 8 July 2003 (A4) Dr Ng commented as follows:
“1.Based on his clinical findings, Dr Edibam is justified in making the diagnosis of compression of the superficial branch of the radial nerve on both sides. This condition can simulate the symptoms of a tennis elbow. Its occurrence is uncommon compared to a tennis elbow syndrome and is usually precipitated by trauma or repetitive strenuous use of the forearm muscles. If the compression of the nerve is not relieved, the symptoms will persist. Confirmation of this condition is by nerve conduction studies.
2.Although bone scan is more sensitive than plain X-rays in the diagnosis of a lateral epicondylitis, this is by no means foolproof. In other words, I have encountered patients with lateral epicondylitis in whom the bone scan doesn’t show uptake at the lateral epicondyle. The corollary is also true. I have patients with no elbow symptoms yet the bone scan showed low grade uptake at the lateral epicondyle. Thus one cannot solely rely on a bone scan to rule out a tennis elbow syndrome. In my experience, ultrasound scanning of the elbow is more likely to pick up a tennis elbow than a bone scan.
3.As I haven’t seen him for over a year, I am not able to comment whether I would still diagnose tennis elbows as the cause of his ongoing elbow symptoms. Nonetheless, I am confident that he had bilateral tennis elbows when I first saw him in April last year.”
The oral evidence
The Applicant
36. In his oral evidence the applicant confirmed the truth of two statements of evidence previously filed with the Tribunal. In relation to the left elbow the statement (A1) was prepared in January 2003 and said that the applicant still suffered symptoms to his left elbow as a result of the August 2001 injury and those symptoms on occasion prevented him from carrying out his employment. In relation to the right elbow the statement was prepared in June 2003 (A2) and said that the applicant still suffered symptoms to his right elbow, that they continue on occasion to prevent him carrying out his occupation of a PDO, and that any activity involving repetitive use of his elbow caused difficulty and pain in the right elbow.
37. The applicant said that he had worked as a PDO until March 2003 when he obtained a temporary position as an administrative officer with the respondent. He said that his symptoms occur on certain tasks that he does such as sorting mail, vacuuming, sweeping the floor, or using the mouse on a computer (unless he alternates hands to prevent his elbow flaring up). The symptoms that he experiences are pain in both the left and right elbows through the forearm and into the hands and fingers.
38. The applicant was referred to two e-mails dated 18 March 2003 (R2) and 9 July 2003 (R1) sent by Ms Harmsen (his former rehabilitation case manager) to Mr Napier (his former manager). In the former e-mail Ms Harmsen reports that she had spoken to the applicant on 17 March 2003, when he commenced his administrative job. She had set up his workstation and given him advice about correct work methods. The applicant was reported to have told Ms Harmsen that “now he had this position, his physical problems had resolved and he no longer needed rehabilitation”. In the latter e-mail Ms Harmsen reported that the applicant had told her on 23 June 2003 that he was “fantastic, no problems at all”. The applicant acknowledged that these e-mails were an accurate reflection of conversations with Ms Harmsen but that he had not understood the conversations with her specifically being in her capacity as a former rehabilitation manager and that he had not told her anything about his symptoms. He could not recall her asking about the symptoms.
39. In cross-examination the applicant had considerable difficulty remembering which university semesters he had studied and which ones he took a break from study.
40. The applicant described the pain in both arms as radiating down the forearm to the hand, making it painful to move the fingers in both arms, although the left is worse. He said that he suffered the pain everyday, even when he does not engage in the activities that provoke it (such as washing dishes, driving etc.) because he gets the pain “for just gripping my hands as well”. He had learnt to live with the pain. He doesn’t now regard it as painful, he regards it as an annoying restriction.
41. He said that after the accident in August 2001 he had complained about the pain in the left elbow about a week later and in the right elbow about a further one or two weeks after that. He does not now feel the pain as severely as when they first arose because he is not working as a PDO and his forearms do not swell up during the day as they did previously.
42. The applicant described himself as a keen sportsman and said that he had engaged in a wide variety of sporting activities over recent years including cycling, kayaking, netball, basketball, kick-boxing, tennis, table tennis, swimming and mountainbiking, although for some of those sports he had participated on a limited number of occasions since he was employed by the respondent. He said that he had never experienced pain from gripping the paddle when kayaking even when he was training extensively for a race in 1999. He said that he had not kayaked more than 10 times in the last couple of years - but he could not say when that had occurred, although the last time he had kayaked was the Sunday before the hearing.
43. The applicant said he had been a regular cyclist on both mountain and racing bikes and described various periods when he had ridden to or from work from home and to university – although he could not say when those periods were with any precision. He said that he had taken up swimming at the suggestion of his rehabilitation managers but he could not remember when that was, although he subsequently related it to it being after he had suffered a back injury sometime in 2002. By the end of 2002 he was cycling between 150 – 200 kms per week and in February 2003 had been cycling up to 200 kms per week, approximately 100 kms of which was to and from work and approximately 100 kms was additional recreational cycling. He did not regard 200 kms a week as an “astonishing” distance. He was asked whether this extensive cycling caused any elbow or arm pain and initially said that it did not. He then said that if he gripped the handle-bars in a racing style “… and I did it for a prolonged period of time or if it was after work, like riding home from work, if I was gripping a lot after work, yes, I would say I would have been in pain already before I got on the bike”. He was asked whether he could recall if the bike riding of up to 200 kms a week was actually giving him arm pain and he said that he could not recall. At this point, the applicant’s evidence became quite confused and he was asked specifically to clarify it. He subsequently agreed that gripping the handlebars of his bicycle did cause pain.
44. In relation to sports such as netball, basketball and tennis the applicant said that he had only taken those up in 2003. In relation to tennis, he said that he had been playing once a week in early 2003 but had given it up “since it started raining” - but then subsequently added that he had also given it up “because it hurts to grip the racquet for – for long periods of time”.
45. The applicant said that the pain in the right elbow was the same as in the left elbow, that it came on slowly and became sharp, that it had reached the point where he couldn’t use his right hand, and that he had told Dr Low about it, approximately 3 weeks after the accident. He was sure that he had told Dr Low that the pain in his right elbow had got to the point where he couldn’t use his right arm. He was “pretty sure” that he had first complained to Dr Low about the right elbow on 8 September 2001.
46. The applicant said that he had referred to “RSI” or repetitive strain injury in his claim form of 25 October 2001 because that is what his general practitioner, Dr Meyerkort, had told him that he had - although he subsequently said that he had not told Dr Meyerkort that he was suffering pain in both arms because he hadn’t seen that doctor about his right arm. The applicant subsequently said that he must have referred to RSI because “this must be what I just thought I had”. He said that he considered his claim of October 2001 to be for both arms, although he agreed that when he saw Dr Meyerkort after the accident he had not referred to any injury to the right side, specifically the right elbow. He said that he had subsequently lodged the second compensation claim relating specifically to the right elbow because he had received legal advice that there had been no claim considered for his right elbow. He said that when he submitted the October 2001 claim he thought the right elbow pain he was experiencing was a result solely of the accident. He had subsequently formed the view that his other work, particularly sorting mail, was partly to blame but he couldn’t say when he had formed that view. He said that from October 2001 he thought the injury to the right elbow was a consequence of favouring the left elbow and was caused particularly by the sorting of mail and the placing of elastic bands around bundles of mail that was involved in that duty.
47. He was asked specifically whether there was anything about his deliveries on his motorcycle that made him favour one arm over the other and said that the sorting and banding of mail was the only time he would favour the left hand. There was nothing about riding the bike which made him favour his left arm. He was asked on several occasions whether there was anything else about the delivery process that caused pain and said that there was nothing that he could recall.
48. The applicant then said that during 2002 there were occasions, particularly on days when there was a heavy volume of mail, when the pain in both arms had been so bad that he could not use an arm and had to favour the other arm - but he did not tell the respondent about those symptoms because there was no point in doing so because Dr Low had already said that his symptoms were non-specific. He did not tell Dr Low or his managers at the delivery centre.
49. The applicant agreed that he had been angry with the respondent because they were not providing him with support, because Dr Low thought he was not being truthful about his injury.
50. The applicant said that in March 2002 he had an onset of back pain, which he thought was caused by having to ride his motorcycle up kerbs to make deliveries and was not able to use his elbows to pull the bike up over the kerb because of the pain.
51. The applicant was referred to Dr Low’s notes of the consultation on 14 March 2002 concerning the applicant’s back pain. He agreed that Dr Low had not recorded anything about the applicant’s elbows, nor any reference to the applicant complaining of elbows swelling, but he was sure he did tell Dr Low about that on that occasion. He agreed that there was no mention in Dr Low’s note of a consultation on 10 April 2002 about the belief that the elbow pain was causing the back pain. He said that he would have told somebody within Australia Post what he thought was the reason why he was getting pain - but he can’t remember who it was that he would have told.
52. The applicant said that he could not recall if he told Dr Ng in early April 2002 that he was in bad back pain at that time even though it was a major concern to him at the time and he believed that his inability to use his elbows to lift a motorbike over kerbs was the cause of the pain.
53. The applicant said that in July and August 2002 he was still suffering elbow pain but he agreed that he had worked some overtime against the advice and direction of his employer. He had been asked for an explanation for this by Ms Harmsen but had not provided an explanation in writing as requested. Although his elbow pain had not resolved in the latter part of 2002 he agreed that he had asked for permission to do overtime in November 2002 and agreed that he had told Ms Harmsen when making the request that he was feeling “fantastic”. The applicant said that this was a reference to his back pain and he had not mentioned the continuing pain in his elbows because “it had already been decided that there was nothing wrong with my elbows, according to Dr Low.” The applicant said that he always tells people he feels fantastic even though he lives with his elbow pain every day.
54. The applicant said that towards the end of 2002 he had another accident on his motorcycle in which he injured his left knee, as a result of which he saw Dr Low again on several occasions – but on no occasion did he mention the continuing pain in his elbows.
55. The applicant was referred to a note prepared by an employee of the respondent, Mr Lamb, about a conversation he had with the applicant on 11 February 2003, which recorded that the applicant’s “soreness has reduced a lot and he has started to play sports again, kayaking, table tennis and tennis. Continues to cycle.” The applicant agreed that that was a correct record.
Dr Ng
56. In his oral evidence Dr Ng confirmed that he had seen the applicant only once. He had a different view to that expressed by Dr Edibam because, when he examined the applicant, he found evidence of localised tenderness over the lateral epicondyle area on both elbows. Even though the provocation tests on the left side were slightly positive and negative on the right side, the applicant’s history and symptoms were consistent with bilateral lateral epicondylitis.
57. In cross-examination Dr Ng said that he was extremely familiar with epicondylitis and elbow difficulties, seeing at least 3 new cases each week over his 24 years experience. He had never before in his working life diagnosed a person with the condition that Dr Edibam had diagnosed.
58. Dr Ng said that the applicant had referred to his middle back and neck but had probably not referred to his lower back. Had he done so Dr Ng would have noted that in his record.
59. Dr Ng said that the standard and accepted test for lateral epicondylitis involved the patient making a fist and then trying to cock the wrist up against resistance applied by the examiner. In the applicant’s case this test had been slightly positive on the left-hand side and negative on the right side, indicating that the epicondylitis was mild. In a mild case the test can give a negative result. He said that it is likely that he would have asked the applicant if there had been any swelling in his elbows and the absence of anything in his report regarding swelling would indicate that he had been told that there was no swelling. He would expect to be told by the patient if there had been swelling or that the pain had been so great that the patient had been unable to use the affected arm.
60. Dr Ng said that he had not considered compression of the superficial branch of the radial nerve, as Dr Edibam had, because tennis elbow is so common and the applicant’s symptoms so consistent with that, that he did not look beyond that. Although he agreed with Dr Edibam’s conclusion based on the clinical results that Dr Edibam had apparently obtained, he disagreed with Dr Edibam about the absence of tenderness. Because the condition found by Dr Edibam is rare and gives exactly the same symptoms as patients with tennis elbow, Dr Ng thought that Dr Edibam’s diagnosis was justifiable – although he thought that the fact that Dr Edibam found no abnormality in the sensory function of the nerve raised questions about whether the clinical diagnosis was confirmed because, normally, if the radial branch is affected there would be sensory impairment. However, that depended on the degree of compression and in the applicant’s case it may have been quite a mild compression.
61. Dr Ng said that the fact that a bone scan conducted on the applicant’s elbows in September 2002 was completely normal did not necessarily mean that his diagnosis of epicondylitis was not correct, because bone scans are almost never used to exclude epicondylitis and, in a mild case, a bone scan is not sensitive enough to pick up the condition.
62. Dr Ng said that epicondylitis will be classified as mild by reference to a relatively low level of pain experienced and, most importantly, the patient’s ability to use the affected limb for work. If it is a severe case the patient would not be able to use the limb for work. The fact that the applicant had lost no work time confirmed his clinical impression that his condition was a mild one.
63. Dr Ng expressed the opinion that, even if Dr Edibam’s diagnosis was the correct one, it was possible that that condition and epicondylitis could exist together and the nerve compression could have been precipitated by the applicant’s work. He thought that the condition in the left arm would have been caused by the accident in August 2001 but the condition in the right arm may have been precipitated by the jerking of the motorbike over kerbs with the right arm.
64. Dr Ng said that the gripping of a handle of a bicycle may aggravate a person’s epicondyles, but in all his years of experience he had never had a patient who was a professional bike rider and he doubted whether that activity would cause epicondylitis.
Dr Edibam
65. Dr Edibam has been a specialist orthopaedic surgeon since 1964. He confirmed that when he examined the applicant he could find no tenderness of the left epicondyle but he was very tender over the superficial radial nerve.
66. Dr Edibam described tests that involve the applicant extending his arm and pushing the wrist down and extending the middle finger. Pain from these tests indicate lateral epicondylitis. He said that he was not familiar with the test described by Dr Ng and he did not know what it would test for, whereas his test is the one used by specialists in the field. Dr Edibam said that the absence of abnormality of the sensory function of the nerve did not mean anything because there could be pain in the elbow without the nerve sensations being compromised. The compression condition can be caused by an injury or excessive activity, or it can occur spontaneously. Clinical examination will not disclose the cause of the compression. Dr Ediham said he had seen Mr O’Connor’s report and he thought that a radioisotope bone scan is a sensitive test, being about 95% accurate.
67. He said that vigorous repetitive activity which causes swelling can cause compression of the nerves but that would require fairly strenuous physical activity.
68. In cross-examination Dr Edibam said that epicondylitis could not cause the compression condition. He accepted that the left elbow condition occurred as a result of the injury in August 2001 either because of a direct blow to the nerve or because of swelling. He accepted that repetitive activity could bring on the symptoms but he could not accept that the use of the right wrist in accelerating and breaking when riding a motorbike repetitively could provoke the onset of the symptoms. More strenuous activity would be needed. He thought that it was more likely than not that the applicant’s sporting activities such as playing tennis or kayaking had caused the problem. He had not asked the applicant any questions about his recreational activities because when he saw the applicant he was only interested in diagnosing what was causing the pain rather than establishing what had brought the pain to light. His normal practice is to not ask leading questions of his patients. He relies on the patient to voluntarily tell him a history and he had not asked the applicant anything about the repetitive use of his elbows because the applicant had referred to the August 2001 accident. He was aware that the symptoms in the right elbow had arisen subsequent to the accident but he had not asked what had provoked the symptoms, nor had he asked the applicant about what work he was doing in late 2001.
69. Dr Edibam said that he disagreed with Dr Low’s diagnosis of epicondylitis in the left elbow that had been made in 2001. He thought that it was likely that if there had been epicondylitis in September 2001 it would have resolved by July 2002 even though epicondylitis can last for years. An acute attack of epicondylitis “which comes with a bang will last for a few weeks to months then settles down provided there is no repetitive stress.” If the stressful activity continues, particularly if it requires quite a lot of strength in the muscles of the forearm, then the condition may last much longer. A chronic epicondylitis can develop from an acute epicondylitis. Likewise, a nerve compression condition can occasionally settle down without decompression but it will not abate if the repetitive activity of a strenuous nature continues.
70. In re-examination Dr Edibam said that the expression “tennis elbow” is a description of the symptoms that can be caused by a variety of different conditions. Lateral epicondylitis is one of those conditions and others include osteochondritis of the capitulum, osteoarthritis in the capitula radial head joint, and compression of the radial nerve. He noted that Dr O’Connor had found bilateral tennis elbow but had not referred to epicondylitis.
71. Dr Edibam said that he had not been surprised that the applicant had complained of pain in both elbows because “if you have an anatomical anomaly one side you always have it on the other side.” Although he knew that the applicant worked for the respondent sorting and delivering mail, he did not consider that to be a heavy, manual job and he could not correlate the pain that the applicant complained of and his work duties. The applicant had said that he felt his symptoms were worse after work activity and domestic activity, including computer keyboard use, but had not mentioned anything about sporting activities. The applicant had said nothing about favouring one arm because the other was hurting or about hitting kerbs when he was doing his delivery round.
72. Dr Edibam said that pain caused by compression of the superficial branch of the radial nerve would not get better unless it is treated. Cessation of the activities involving the forearm would not improve the situation. If the applicant says that his forearms are now better because he has ceased the activities that previously caused pain then his (ie Dr Edibam’s) diagnosis was wrong.
Dr Low
73. Dr Low is an occupational physician. He said that at the time of giving his oral evidence about 60% of his practice involved seeing employees of the respondent, but at the time he saw the applicant concerning his elbows in the latter part of 2001 about 80% of his practice involved employees of the respondent. His work with the respondent includes assisting with occupational health and safety issues if required, but mainly it involves seeing patients for the purpose of occupational rehabilitation, fitness for work assessments and medico-legal assessments. The work includes visiting work sites to observe work activities and making recommendations about work practices. He sees quite a lot of lateral epicondylitis conditions. Usually epicondylitis in the right elbow is due to the sorting process and the left elbow due to delivering mail into letterboxes. His experience is that if the condition is identified quickly it can be dealt with satisfactorily and resolves itself quickly, within about 4 - 5 weeks.
74. Dr Low said he had only a vague recollection of the consultation with the applicant on 30 August 2001. Although his notes refer to kayaking, which indicates that the applicant must have referred to that activity, he could not recall whether the kayaking was something the applicant did at that time or that he had given up some time previously.
75. At that consultation he had concluded that the applicant had acute tennis elbow or lateral epicondylitis in the left elbow. This is a condition that normally comes on gradually but it can also come on acutely from something like a knock or an acute strain. Where there has been an acute onset there is normally a better prognosis and it tends to resolve very quickly over weeks rather than months. Where there has been a gradual onset the chronic condition tends to take a longer time to settle, usually 12 – 18 months to completely settle, but with modified activities the worker is usually quite functional within 6 – 8 weeks. At that consultation he had restricted the applicant’s motorcycle deliveries and lifting in the palms down position.
76. Dr Low described the test he uses, both to provoke the symptoms of lateral epicondylitis and simulation distraction tests – which patients believe are a test but are not. They are designed to distinguish symptoms that are due to organic pathology from those that are non-specific and not significant. They should not provoke symptoms of epicondylitis. He described three provocation tests, being resisted extension of the wrist and the middle finger, and palpation of the epicondyle.
77. At a consultation with the applicant on 10 September 2001 both the provocation and distraction tests were positive for the left elbow. On 27 September 2001 the provocation tests for both left and right elbows were negative, as was the case on 8 November 2001. On the latter occasion he had concluded that he could not attribute the applicant’s symptoms (tender extensor muscles and medial epicondyles on both sides) to any specific pathology. When he saw the applicant in January 2002 he detected no abnormalities in either elbow and the applicant had not complained of pain in the right elbow. He saw the applicant in relation to low back pain in March and April 2002 and no mention was made of elbow problems.
78. Dr Low said that by November 2001 he was satisfied that the applicant’s left elbow epicondylitis had resolved because the onset had been acute and appropriate interventions had occurred including mylofascia treatment, modified duties and stretches. In addition his positive examination findings became less and less until they were not actually present. Consequently, whatever conditions may have been present they were not consistent with any medical condition he knew of.
79. In relation to Dr Edibam’s evidence that repetitive strenuous activity (such as cutting wire with clippers) could bring on both epicondylitis and nerve compression, Dr Low said that he thought sorting mail would not be comparable in terms of strenuousness, but gripping motor bike handle bars and the “pulling down” of mail from the slots during sorting would be similar. He had seen cases of right elbow epicondylitis in PDOs. Pulling down mail stacks and grabbing stacks of mail from bags mounted on the motor bike was the most likely cause but it was possible using the motor bike accelerator might also cause pain. Although, theoretically, using one arm whilst favouring the other could aggravate the position, Dr Law considered the applicant did not have right elbow epicondylitis because his clinical examinations did not reveal it. Even if the presence of pain indicated the early stage of epicondylitis, the workplace assessments of the applicant would have dealt with any problem before it developed further. The applicant had never complained to him of pain when pulling down mail stacks but had reported pain being more noticeable with prolonged sorting.
80. Dr Low said that he accepted that, in November 2001 and subsequently, the applicant did have pain in both elbows but there was no evidence of epicondylitis after that time. He could not make a diagnosis with a patho-physiological basis to account for the symptoms.
Other witnesses
81. Mr Fulton is an exercise physiologist employed by the respondent. He first saw the applicant in March 2002 and recommended exercises for the lower back problems. The applicant had first referred to arm/elbow problems in May 2002. He had seen the applicant in relation to the back problems from March to September 2002 and again in February 2003.
82. Ms Harmsen is a consultant rehabilitation case manager for the respondent. She first dealt with the applicant in November 2001 (when he wanted the respondent to explain to his university that he needed extra time for exams) until she had closed his rehabilitation case file in March 2003. Ms Harmsen said that after the applicant started his administrative job in March 2003 he was located on the same floor as she and so she had asked him, in passing, on several occasions how he was getting on. Most of her attention during the management of the applicant’s case was in relation to his back, but she had seen that he was given exercises and stretches to do for his arms as well.
Conclusions and findings
83. In my opinion there are a number of aspects of the applicant’s evidence that confirm Dr Low’s assessment that he was a “vague historian”. On occasions the applicant was very vague in relation to events that occurred fairly recently – such as in which semesters he did or did not study and in relation to such matters as when he attributed his right elbow pain to jerking his motor bike over kerbs. Equally, in my opinion, the applicant significantly exaggerated the extent of pain and discomfort he experienced from the accident and thereafter, including the presence of swelling in the forearms. Conversely, I consider that he significantly down-played the extent of his sporting and recreational activities and the impact of the time he spent on keyboard activities for his study. Overall, I am satisfied from the documentary evidence and the applicant’s oral evidence that he felt a high degree of resentment towards the respondent because of what he thought was unfair treatment in relation to his elbows. That resentment has coloured his evidence in these proceedings, which in many respects I consider to be unsatisfactory.
84. Nevertheless, from that part of the applicant’s evidence that was not in dispute and the other evidence before me it is possible to make a number of findings about the applicant’s right elbow condition. The first finding is that the applicant did experience pain and tenderness in his right forearm and elbow from September 2001 up until about mid 2002. That finding is based on the following:
(a)It is not in dispute that the applicant suffered epicondylitis of the left elbow in August 2001 and complained of right elbow pain to Dr Low in late September 2001.
(b)Dr Low accepted that in November 2001 the applicant continued to have pain at that time and subsequently and he found tenderness in the extensor muscles and medial epicondyles in both arms – even though he could not account for those symptoms. The applicant continued to complain of pain in both forearms in January 2002. By April 2002 Dr Ng was able to find tenderness in both lateral epicondyles.
(c)However, by July 2002 Dr Edibam could find “no real tenderness over the lateral epicondyle or over the supra condyle ridge” although there was tenderness in the muscle bellies of the forearms. In October 2002 Dr O’Connor could find no localised tenderness.
(d)By July/August 2002 the applicant was prepared to work overtime against the direction of the respondent.
85. As to what was the cause of that pain, Dr Low thought in September to December 2002 it was not epicondylitis but Dr Ng thought it was in April 2002. Dr Edibam thought it was not that condition subsequently and Dr O’Connor referred only to tennis elbow – a phrase that covers a number of conditions, one of which is epicondylitis.
86. On balance I consider that Dr Edibam’s diagnosis of the applicant’s condition is unlikely – because:
(a)I accept the reservations about Dr Edibam’s diagnosis of the applicant’s condition expressed by Dr Ng based on the latter’s view about the rareness of the condition, the lack of evidence of abnormality of sensory function of the nerves in question, and Dr Edibam’s finding of no tenderness. Dr Edibam’s test for epicondylitis was not one of those used by Dr Ng or Dr Low, both of whom have great experience with that condition.
(b)Dr Edibam acknowledged his diagnosis would be incorrect if the applicant’s experience was that a cessation of the repetitive activities that caused the pain did result in a cessation of the pain. The evidence of what the applicant told Ms Harmsen about his improvement since starting his administrative job suggests that is indeed the case.
(c)Dr Edibam’s diagnosis, at least as expressed in his report of 23 July 2002, was somewhat tentative. He referred to “signs pointing to compression …which would suggest that the problem is due to ...” (emphasis added). I note that there is no evidence of any electroneuromyographic studies having been undertaken as part of the diagnostic process – something that is said to form part of the basis of diagnosis of entrapment/compression neuropathy in the American Medical Association Guide to the Evaluation of Permanent Impairment (5th Edition at p 492 and 493).
87. Although Dr Low was not prepared to diagnose the right elbow symptoms as such, I accept Dr Ng’s evidence and, on balance, I consider that the most likely explanation of the cause of the applicant’s symptoms in the right elbow up to the middle of 2002 was epicondylitis – but that this condition had resolved by that time.
88. I must then consider whether that condition was an “injury” for the purposes of s 14 of the Act. Epicondylitis is a “physical injury” and an “ailment” for the purposes of s 4 of the Act. It will, therefore, be an injury within the meaning of s 4 if the physical injury “arose out of or in the course of” the applicant’s employment (for the purposes of para (b) of the definition of injury) or a disease (and, hence, also an injury) if the ailment was “contributed to in a material degree” by that employment (for the purposes of para (c) of the definition of injury).
89. As the full Federal Court observed in Australian Postal Corporation v Burch [1998] FCA 944, (1988) 85 FCR 264 at 268 “the policy manifest in the drafting of the Act is to require a higher level of work connection in the case of disease. In the case of disease there has to be a contribution in a material degree by the employment. In the case of injury it is sufficient to show that the injury arose out of or in the course of the employment – there need not be a causal connection” (emphasis in the original).
90. In relation to the phrase “contributed to in a material degree” the Full Federal Court (for the purposes of the predecessor legislation to the Act) in Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 at 323 has also observed that::
“The use of the word “material” in conjunction with the words “contributing factors in the legislation, where it has occurred in expositions of the section in other cases clearly is not intended to add to the section any significance which is not already to be found in the words used by the legislature. It has served only to emphasise that the section is not brought into play unless it be established by evidence that features of the employment did in fact and in truth contribute to the condition complained of. The causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established, however, it matters not that the contribution be large or small.”
91. In my opinion there is evidence sufficient on balance to connect the right elbow condition to the applicant’s employment in a way that is not mere possibility or conjecture. The applicant complained of right elbow pain by at least 27 September 2001, the evidence of the medical practitioners was of subsequent right arm pain and tenderness, and the evidence of Dr Low was that there are aspects of a PDO’s duties that are conducive to epicondylitis in the right elbow – specifically, “pulling down” and picking up stacks of mail and using the accelerator lever on the motor bike.
92. I am therefore satisfied that the applicant’s right elbow condition was an ailment that was contributed to by his employment to a material degree. Other factors and activities of the applicant may well have played a part in the development of that condition (although I express no concluded opinion) but it is sufficient that employment was a material factor. The epicondylitis was, therefore, a disease and an injury as defined. Having made that finding it is unnecessary for me to consider whether the epicondylitis was also an injury as defined in paragraphs (b) and (c) of the definition of injury in s 4 of the Act, or the aggravation of such an injury.
93. For the purposes of s 14 I must then consider whether the right elbow epicondylitis resulted in an incapacity for work, or impairment. In my opinion the applicant’s elbow conditions were only ever mild. Dr Low recorded in the various consultations he had with the applicant regarding his arm pain that he had a full range of painless movements. Dr Ng expressed the opinion that the fact the applicant had lost no work time confirmed his clinical opinion that it was a mild case. Dr O’Connor found “no limited movements” in either elbow and bone scans at that time (September 2002) showed no evidence of epicondylitis or articular pathology.
94. In addition to the above the applicant’s own evidence was that by October 2002 he had requested permission to work overtime (and had done so without authority) and at around that time he was cycling between 150 and 200 km per week. The applicant’s evidence that gripping his bicycle’s handlebars would cause pain, as well as his statement when seeking authority to do overtime that he was feeling fantastic, suggests that whatever discomfort he was experiencing from his elbows (if any) was very little indeed. I do not accept the applicant’s evidence that the comment about feeling fantastic referred only to his lower back pain.
95. It is true that for a few days after the August 2001 accident the applicant was restricted in the duties he could perform because of the injury to his left elbow (and other parts of his body) and needed to take short breaks to do stretch exercises (R7). He had then, and continued to have, a full range of pain-free movements and he lost no work time as a result of his elbow problems, although he continued to do periodic stretches for some time.
96. It is not necessary that a worker must show an economic loss of wages before it can be said that there is an incapacity: see Telstra Corporation v Barrow (1994) 19 AAR 523 per Carr J at 535-539 and the authorities referred to therein. The respondent’s determination of 11 December 2001 in relation to the left elbow to accept liability up to that date must be taken to mean that the respondent accepted that the epicondylitis in the left elbow resulted in one or both of an incapacity for work or an impairment. For the right elbow, in my opinion, the condition was so mild in its nature and had so little impact on the applicant (in light of my conclusions about the extent to which he exaggerated the pain and discomfort he experienced) that it could not be said to have resulted in anything other than a de minimis incapacity for work or impairment – even in the broader sense in which the latter word is used in the context of the Act: see re Halliday and Comcare (1994) 19 AAR 431, A93/92 AAT No 9387 at [48]. Whatever slights incapacity there might have been in either elbow had ceased by mid 2002.
97. Accordingly, I conclude in relation to the right elbow that the applicant did suffer an injury for the purposes of s 14 of the Act, but that injury did not result in an incapacity for work or an impairment for the purposes of that section. It follows that the respondent is not liable under s 14 to pay compensation to the applicant in accordance with other provisions of the Act in respect of his right elbow.
98. My decision is that:
(a)In Proceedings W2002/117 the reviewable decision made on 11 February 2002 (affirming the determination of 11 December 2001 to cease liability under s14 of the Act) is set aside. The determination of 11 December 2001 to accept liability under s 14 of the Act in respect of epicondylitis of the left elbow remains. The respondent shall pay the costs of Proceedings W2002/117 incurred by the applicant to be determined in accordance with the Tribunal’s General Practice Direction.
(b)In Proceedings W2003/143 the Tribunal affirms the decision made on 7 March 2003.
I certify that the 98 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M Allen, Member
Signed: ............(sgd V Wong).............................................
AssociateDates of Hearing 14 – 15 July 2003
Date of Decision 3 May 2004
Counsel for the Applicant Mr C Prast
Solicitor for the Applicant Slater & Gordon
Counsel for the Respondent Ms P Giles
Solicitor for the Respondent Sparke Helmore
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