Barry and Cleanaway Operations Pty Ltd (Compensation)
[2021] AATA 369
•3 March 2021
Barry and Cleanaway Operations Pty Ltd (Compensation) [2021] AATA 369 (3 March 2021)
Division: GENERAL DIVISION
File Number(s): 2018/2895, 2018/4879, 2018/7312, 2019/3601, 2019/3602, 2019/3603
Re: Anthony Barry
APPLICANT
AndCleanaway Operations Pty Ltd
RESPONDENT
DECISION
Tribunal:R Cameron Senior Member
Date:3 March 2021
Place:Melbourne
The Tribunal affirms each of the reviewable decisions.
....................[]....................................................
R Cameron Senior Member
Catchwords
COMPENSATION – anxiety insomnia - severe clinical depression - permanent impairment, psychological condition - pains to the umbilicus post-surgery – seroma - scar tissue - scarred and contracted mesh - paraumbilical hernia - whether that condition arose out of or during the course of employment - entitlement of compensation - reliability of Applicant’s evidence - whether injury significantly contributed to by employment – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Evidence Act 1995 (Cth)
Safety Rehabilitation and Compensation Act 1988 (Cth)Cases
Australian Postal Corporation v Tzikas (1985) 5 AAD 187.
Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463.
Nguyen v Comcare [2018] AATA 1623.
Portors v Comcare [2018] FCA 914.
Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253.
Zaveczky v Comcare [2020] AATA 4960.Secondary Materials
Guide to the Assessment of the Degree of Permanent Impairment – Edition 2.1
REASONS FOR DECISION
R Cameron Senior Member
3 March 2021
INTRODUCTION
There are six applications for review before the Tribunal.
The first application, No 2018/2895 seeks review of a decision made on 11 April 2018 denying liability for a claim made by the Applicant for compensation under the Safety Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) for “anxiety, insomnia and severe clinical depression directly connected with fluctuating pain stemming from a workplace injury in July 2016” (“The First reviewable decision”).
The second application, No 2018/4879 seeks review of a decision made on 25 July 2018 denying liability for a claim made by the Applicant for compensation under the SRC Act for a “paraumbilical hernia” sustained on 12 July 2016 (“The Second reviewable decision”).
The third application, No 2018/7312 seeks review of a decision made on 26 November 2018 denying liability under section 14 of the SRC Act for “pains to the umbilicus post surgery, seroma, scar tissue, scarred and contracted mesh”, sustained on 26 March 2017 (“The Third reviewable decision”).
The fourth application, No 2019/3603 seeks review of a decision made by the Respondent under section 62(1) of the SRC Act on 7 May 2019 finding that there was no liability to pay compensation in respect of “recurrent small hernia” sustained on 26 March 2017 (“The Fourth reviewable decision”).
The fifth application, No 2019/3602 also seeks review of a decision made by the Respondent under section 62(1) of the SRC Act on 7 May 2019 finding that there was no liability to pay compensation in respect of a “paraumbilical hernia” sustained on 12 July 2016 (“The Fifth reviewable decision”).
The sixth application, No 2019/3601 seeks review of a decision made by the Respondent under section 62(1) of the SRC Act on 6 June 2019 finding that there was no liability to pay compensation for permanent impairment or non-economic loss pursuant to sections 24 and 27 of the SRC Act in respect of a claim for “psychological – depression, anxiety and insomnia” (“The Sixth reviewable decision”).
SOME ASPECTS OF THE APPLICANT’S CONDUCT OF HIS CASE.
The Applicant was self-represented. This was unfortunate because previously he had three different and competent law firms act for him. Mention should be made early in these reasons about certain aspects of the Applicant’s conduct of his case. Significant latitude was afforded to him as a self-represented litigant by both the Tribunal and counsel for the Respondent. He did not see it in this light.
When the Respondent commenced calling witnesses on its behalf, the Applicant endeavoured to cross-examine them. It was explained to the Applicant on several occasions by the Tribunal the appropriate manner in which cross-examination should be conducted.
On some occasions, his questions were properly put. On many occasions, the questions were impermissible for a variety of reasons. These reasons included the rolling up of multiple questions in one, a question that presumed the witness said given a previous answer which they had not, a question that presumed certain facts have been established and amongst other things, questions that were more in the form of a statement critical of the witness rather than a specific question.
Counsel for the Respondent gave the Applicant reasonable latitude before taking objection, as he was entitled to do. However, given the frequency of impermissible questions asked by the Applicant, counsel quite fairly, and properly, objected to many of the questions put in cross examination of his client’s witnesses. Early in the cross-examination of Ms Juliana Boron (“Ms Boron”), during the third day of the hearing (after the evidence had been given by Mr Shane Walters (“Walters”) and Mr Gavin Bodley (“Bodley”) a proper objection was taken to a question by the Applicant. He engaged in a most intemperate outburst and insinuated that the objections were being unfairly taken. They were not. He was then critical of both the Tribunal and counsel for the Respondent. Indeed, at one stage he even made an unjustified ethical slur on the Respondent’s counsel, who it must be observed conducted himself and the Respondent’s case in an exemplary manner. These criticisms were unfounded. He then made an application for an adjournment of the proceeding. The application was refused by the Tribunal.
Upon refusal of his adjournment application, the Applicant then announced that he would not be taking any further part in the proceeding other than to sit and observe. He was in effect refusing to participate in his own process.
Mr Darren Gilbert (“Mr Gilbert”) then gave his evidence and the Applicant did not cross-examine him. This of course was particularly surprising given that in the various documentary evidence before the Tribunal tendered by the Applicant, and throughout the course of the proceeding to that time he had been highly critical of Mr Gilbert. More will be said from time to time in the course of these reasons about Mr Gilbert’s evidence. However, the Tribunal accepts it in its entirety.
It should be noted that counsel for the Respondent raised the prospect of the Tribunal considering its position in the light of the Applicant’s refusal to participate. Obviously, the Applicant’s refusal to participate was contrary to the objectives of the Tribunal found in s 2A of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’). He also raised the prospect of whether or not there had been an abuse of process undertaken by the Applicant refusing to engage in the process that he had initiated. Naturally, concerns were raised about continuing costs and inconvenience to the Respondent. The Tribunal resolved to continue to hear and determine the application on the evidence before it.
Due to the Applicant’s stated intention of not participating further in the proceeding, the Respondent decided not to call Associate Professor Renaut. The Tribunal considers this was an appropriate decision to make in the circumstances.
Associate Professor Mendelson gave evidence on the last day of the hearing. Contrary to his stated intention of no longer participating in the Application, the Applicant decided to cross examine Associate Professor Mendelson and did so quite competently for someone without legal training. It is unfortunate that he did not see fit to conduct himself this way when cross examining other witnesses.
The Applicant was given the opportunity to and did lodge with the Tribunal and serve what he described as a “Closing Statement”. It has been taken into account by the Tribunal.
SOME GENERAL OBSERVATIONS CONCERNING THE APPLICANT’S DEMEANOUR AS A WITNESS.
It is appropriate prior to considering the evidence in this matter to make some preliminary observations concerning the Applicant’s evidence from the witness box, and his overall demeanour. Regrettably, he was a most unsatisfactory witness. Time and again when confronted with contemporaneous documentary evidence that was contrary to the version of events that he gave in the witness box, or a prior statement made by him, he would assert that the document (including a witness statement) was wrong, some kind of recent invention or even “fraudulent”. There were approximately 11 occasions where he gave evidence about documents in this way. Some of them will be more particularly addressed in the subsequent part of these reasons.
His evidence from the witness box was riddled with embellishment and reconstruction in a way that he believed would assist in achieving his objective of having each of the renewable decisions set aside. He also repeatedly demonstrated an inability to answer many questions that were put to him that called for a straightforward answer. On other occasions, he sought to make a statement from the witness box attacking various staff members of the Respondent, or the Respondent’s approach to his claims.[1]
[1] An indicative example of this is found in a statement tendered in evidence by the Applicant (AB 57 of his tender bundle) where he said: “Since I tore the scar tissue in March 2017, my family and myself have had to put up with lie after lie from the respondents. If Dr Burke and the respondents can’t provide evidence that I initially complained of groin issues, they should be charged with fraud, denying liability by lying is financial advantage by deception is it not?” As will be apparent later in these reasons there was ample evidence of the Applicant initially complaining of groin issues. He then later in the statement boldly contended that Mr Gilbert’s statement of 26 May 2017 was “fabricated”. These allegations made by the Applicant are false and without foundation.
These attacks were unfounded and not supported by any evidence whatsoever. He also was particularly critical of the conduct of Dr Burke, the Occupational Physician who examined him and whose reports were in evidence. Indeed, he described the report prepared by Dr Burke as “bull shit”. From time to time, both in the witness box and making submissions to the Tribunal there were many uncontrolled outbursts and the use of inappropriate and offensive language. Regrettably, the Tribunal is forced to conclude that he is an unreliable witness. Accordingly, where the evidence of the Applicant conflicts with that of other witnesses or the contents of a contemporaneous document, in the absence of appropriate corroboration, the Tribunal prefers the evidence of those other witnesses or the contents of the contemporaneous document.
It is appropriate to also mention that the Tribunal observed each of the Respondent’s witnesses to be credible, truthful and fair. None of the allegations made against them were justified. They conducted themselves in the witness box appropriately and with dignity in a setting that the Tribunal appreciates may have been difficult for them. Where appropriate in the course of these reasons, further details will be given of occasions where this was the case.
THE ALLEGED HERNIA EPISODE IN JULY 2016.
The Applicant contends that he sustained a hernia injury on 12 July 2016. The Tribunal has observed that there have been several inconsistencies in the Applicant’s versions, several of which have been given concerning this event.
In a statement that was prepared with the assistance of experienced solicitors who were then acting for him and dated 27 March 2019 other than stating that he sustained the hernia on that day no other details of how the hernia was suffered or occurred were given.
Under cross-examination, he stated that he had attended in the usual course of his duties at a fish and chip shop known as “Flaky Jakes” in the Frankston central business district. Upon arrival at that site, he observed that the bin he was supposed to collect was too heavy for the truck to lift. Apparently, the fully loaded bin which has wheels attached to it had sunk into the soft grass surface where it had been left adjacent to the fish and chip shop premises. He was unable to move it to the footpath without assistance.
The Applicant then telephoned Bodley, an Operations Supervisor of the Respondent who subsequently gave evidence in this application. On 27 July 2016, Bodley made a file note of his conversation with the Applicant on that day.[2] He informed Bodley that he needed assistance because the bin was too heavy for the truck to lift and he was unable to get it on the footpath because it was located in a difficult position.[3] Bodley advised the Applicant to remain at the location whilst he investigated the possibility of finding another driver who could assist him.
[2] The file note made by Bodley is document ST 11 of the ST documents in application 2018/4879.
[3] This was consistent with what he wrote in the claim form. He said "Heavy bin stuck in mud", "Getting bin off nature strip". The claim form is document ST 3 in application 2018/4879 pages 10 and 11 contain these responses.
A check of the Respondent’s GPS system by Bodley revealed that another employee of the Respondent, Walters was the closest truck in proximity to the Applicant. Bodley then telephoned Walters to see if he could provide assistance to the Applicant. Walters advised that he could in approximately 15 minutes.
Bodley then telephoned the Applicant advising him that Walters could assist and would be on his way within approximately 10-15 minutes. The Applicant then telephoned Walters explained the situation he was in and to confirm that he was coming to assist.
On his arrival, the Applicant stated that Walters assisted him to move the bin next to the truck and then helping when the machine was used to lift the bin so that its contents could be emptied. As the Applicant stated, “if the bin is too heavy someone needs to give it a push”.
Walters also gave evidence of the hearing of this application. He gave a different version. In his statement, he said that upon arrival at the fish and chip shop, the bin was already at the back of the truck driven by the Applicant. In addition to his typewritten statement of 17 December 2019, shortly after the Applicant reported the incident to Gilbert, Walters made a handwritten note of his recollection of the events.[4] That handwritten note also recorded that upon arrival the bin was already behind the truck.
[4] That document is document ST 5 of the ST documents in application 2018/4879.
The Tribunal accepts Walters’ evidence that at the time of his arrival at the fish and chip shop, the heavily loaded bin had been moved to the rear of the Applicant’s truck. It rejects the Applicant’s evidence on this topic.
In cross examination, the provenance of this handwritten note was challenged by the Applicant. He directly accused Walters of “forging” the document. Walters denied that he had “forged” the document and stated that it was correct, save and except for on the third last line between the words “Tony pushed… And the word operated” there should have been inserted the letter “I”. The Tribunal found Walters to be an impressive witness of truth and accepts this explanation.
The circumstances surrounding the creation of the handwritten note should also be considered with a degree of realism. Walters is a truck driver of a rubbish truck. He was asked by one of his superiors in July 2016 to prepare a note of what occurred a few days earlier. He clearly did so to the best of his ability and without any ill will or malice towards the Applicant. The document was completed by him without the prospect in mind that approximately four years later he would be sitting in a witness box in a proceeding of this nature subject to cross-examination. He wrote the document quickly and readily conceded in the witness box that he did not proofread it. The Tribunal expressly rejects the suggestion that the document is a forgery or in any way untruthful. The omission of the letter “I” was understandable and totally innocuous. It considers that the document was a relatively contemporaneous document written by Walters while the events of 12 July 2016 were relatively fresh in his mind. The Applicant’s unfounded assertions that the document was forged was yet again another example of his propensity to attack the authenticity, contemporaneous documentary evidence when there were no proper grounds for doing so.
The Applicant stated in his oral evidence to the Tribunal that upon the arrival of Walters, as soon as he got out of his truck, he informed him that his stomach was sore. When probed on this in cross examination, he reluctantly conceded he had not made a statement of this type prior to mentioning it in the first claim form which is dated 25 July 2016. That version did differ slightly from the one he gave in the witness box. In claim form he stated, “On arriving I informed Shane that I shouldn’t have moved the bin as now I have a sore stomach”.
Had the Applicant mentioned to Walters that his stomach was sore upon his arrival, one would have imagined that he would have explained this to Mr Gilbert on 21 July 2016 when he finally reported the incident, about which more will be said later, and also when he gave a Record of Interview to Mr Gilbert on 26 July 2016. It is surprising he did not do so given the propensity he has demonstrated at all times to be extremely vocal about matters that he considers will advance or protect his interests. If he had mentioned some soreness to Walters on 12 July 2016, one would have imagined he would have mentioned it at every opportunity in the future as a means of corroborating his claims. The fact that he did not do so until completing the claim form is another reason why the Tribunal does not accept his evidence on this topic and considers that it has all the hallmarks of a more recent invention.
Walters gave a different version of the events. In his witness statement made on 17 December 2019, he said that the Applicant did not say to him that he had hurt or injured himself when he was present at the Flaky Jakes fish and chip shop. There was no mention of his stomach pain being sore. He also stated that he did not see any evidence on his face that the Applicant had used a lot of effort or that he had hurt himself. Additionally, he stated he did not hear the Applicant make any noises that would indicate he had hurt himself.[5] The evidence given by Walters in these passages of his witness statement were not challenged by the Applicant when he cross-examined him. The Tribunal therefore accepts Walters evidence on this question.
[5] Paragraphs 34 to 37 of Walter's witness statement made on 17 December 2019 is referred to. That the statement is document R 8 in the Respondent’s Tender Bundle Exhibit "R 5".
The Applicant said that the soreness developed whilst he was trying to move the bin that was stuck in the soft turf.
Walters in his handwritten note, in his witness statement together with his evidence in the witness box gave evidence that that the lifter of the truck would not lift the heavily loaded bin. As he put it sometimes, the lifters on the truck get to the point where they just do not have enough “oomph” to lift the full bin. It is necessary for the operator to give it a boost or a push. What he says they did was that he operated the lever on truck, together with assisting the lifter whilst the Applicant solely assisted the lifter. The Applicant did this by putting both hands on the lip, or ridge of the bin, and giving it a boost or a push.
The Applicant on the other hand hotly contested this, he said that Walters solely assisted the lifter.
Upon completion of the job at Flaky Jakes, he continued with his day’s work. The Applicant made no report to anyone about the apparent soreness in his stomach or the so-called hernia that he sustained on the day. He was specifically probed as to whether he informed Darren Gilbert, Bodley or Rosemary Isbister (“Isbister”) (another Operations Supervisor employed by the Respondent who regularly directed the Applicant) about the incident. He specifically said no.
Walters in his statement said he never saw any evidence the Applicant had used a lot of effort or that he hurt himself. He also stated that the Applicant did not say to him that he had hurt or injured himself when they were at Flaky Jakes fish and chip shop. This was hotly contested by the Applicant whilst he was in the witness box.
The Applicant did not seek any medical attention on 12 July 2016 either.
For reasons that remain unclear, the Applicant finally reported the incident to Mr Gilbert on 21 July 2016. Gilbert took details from the Applicant concerning the incident and entered them into an electronic record keeping system maintained by the Respondent which generated a document known as an “Initial Incident Report”. Mr Gilbert gave evidence that this document is in fact a “living document” which means that it can be updated from time to time if further information comes to hand.
In discussion between Counsel for the Respondent and the Tribunal in closing submissions, the nature of this Initial Incident Report as a document was discussed. The Tribunal considers that it was verified by Mr Gilbert and the entries recorded in it. He explained during his evidence that the report forms part of the records maintained by the Respondent. Entries or representations recorded, are made in the Initial Incident Report by its employees in this case him, for the purposes of conducting its business. By reason of this verification by
Mr Gilbert, the report falls within the definition of a business record for the purposes of
s 69 of the Uniform Evidence Acts. The effect of this finding is that the contents of the document are prima facie proof. The Applicant’s evidence did not rebut this presumption. Relying upon this finding, the Tribunal accepts that it is an accurate record of the details furnished by the Applicant to Mr Gilbert concerning the incident as recorded by him during their conversation on 21 July 2016. Even if the Initial Incident Report were not considered to be a business record, the Tribunal accepts Mr Gilbert’s evidence that its contents accurately record what the Applicant told him in their conversation when he reported the incident on 21 July 2016.
The critical thing that emerges from an examination of the Initial Incident Report is that r Gilbert has recorded “Tony couldn’t recall any specific incident that triggered or caused the issue. He did say that he would regularly move a heavy bin but there was no specific incident that he could recall. Tony was going to seek medical advice and advise accordingly. Tony elected to see his own doctor rather than have one organised for him”.
The version contained in the Initial Incident Report that the Applicant gave to Mr Gilbert is a different version to the one that he gave in the witness box. In the witness box, the Applicant categorically denied that he told Mr Gilbert that he couldn’t recall any specific incident that triggered or caused the issue. He readily admitted that he told Mr Gilbert that he was going to see a doctor and that he elected to see his own doctor rather than one arranged by the Respondent.
The Applicant went further in his comments about the contents of the Initial Incident Report by boldly saying from the witness box that there was a good chance Mr Gilbert had made it all up. He further said again that he did not give this explanation to Mr Gilbert. He also said that the condition he had kept on going and was not going away. He reiterated that he gave him a version of the events specific to 12 July 2016 in which he suffered the onset of a hernia condition.
The Tribunal cannot accept the version given by the Applicant from the witness box about what he informed Mr Gilbert of on 21 July 2016. It repeats that it considers the document on the preponderance of the evidence to be an accurate reproduction of what the Applicant said to Mr Gilbert on that day. It seems inconceivable to the Tribunal having had the opportunity to observe Mr Gilbert in the witness box that he could be so fundamentally wrong in what he recorded. It expressly rejects the Applicant’s evidence that Mr Gilbert might have made its contents all up. The Tribunal also repeats the observations that it has made earlier about the Applicant’s credibility and his tendency to reconstruct or embellish his evidence. This was another example of him in the witness box giving evidence that the contents of the contemporaneous document were radically incorrect or made up.
It cannot accept this contention.
On the same day that he reported the alleged hernia to Mr Gilbert, the Applicant consulted a general practitioner, Dr Jagadeesan. The treating general practitioner’s clinical notes are in evidence. It should be noted that there is a conflict between contents of the clinical notes and the evidence given by the Applicant from the witness box. The Applicant contended the clinical notes were wrong. This was to be the another of approximately 11 contemporaneously generated documents which the Applicant alleged were wrong, in some instances fraudulent, recent inventions or containing false information. He used a variety of words to make exceptionally serious allegations about the authenticity of these documents. These allegations the Tribunal finds were false. They do not reflect all well upon him. They revealed a propensity or tendency to make wild and overbearing allegations about documents for which he had no proper basis. His credibility as a witness, let alone a litigant in this application was damaged significantly by reason of this conduct.
Dr Jagadeesan clinically examined the Applicant. She recorded that there was pain in the left lower abdomen and that the Applicant had noticed a lump on Monday night. She also recorded that he noticed a sharp pop on Monday at work and pain started Monday night and stayed the same. It got better on the Wednesday it was okay in the morning until he started to pull a bin uphill. She drew a diagram that recorded where the lump and the pain were emanating from. It was emanating from the right groin region.[6] She sent the Applicant for an ultrasound.
[6] Dr Jagadeesan’s clinical notes concerning this consultation on 21 July 2016 are at pages 302-303 of the Respondents tender bundle (exhibit "R 5"). These notes include the diagram referred to
There was an aspect of the Applicant’s evidence concerning Dr Jagadeesan that was most unsatisfactory. In cross examination, the contents of Dr Jagadeesan’s clinical notes from the consultation on 21 July 2016 were put to him. In a most indignant fashion, he said what she puts on her computer I don’t know, the notes don’t make sense I was lying on the table I pointed to the pain in my belly button for and she sent me for an ultrasound. It was put to the Applicant that the doctor wrote down what he had told her. He steadfastly denied it and said, “That is not what I told her at all.” “I felt pain, but I didn’t notice a sharp pop”. “The pain was around my belly button not on the left-hand side. It was right in the middle of the guts. It was a pain in the guts”.
When it was put to him that the doctor’s clinical notes indicated that the problems occurred on 18 July not the 12th of July, once again, he responded indignantly, “I know what happened and I don’t know what she wrote down. I didn’t say that at all. I am saying she has misunderstood. I know what happened when I was there, communication was not 100% it is the way I saw it at the time. She has got it wrong. She touched the umbilicus as well. I don’t understand why she didn’t mention the belly button. That is what happened”. Quite disturbingly, he was critical of the fact that she spoke, as he put it “broken English” and was of Indian background. One could use harsh terms in describing the language he used but they were typically appalling comments to make about a legally qualified medical practitioner who the Tribunal has no doubt conducted herself conscientiously in accordance with her professional obligations as reflected by the content and detail contained in her clinical notes. It does not reflect all well upon the Applicant or his credibility.
Further, in the Applicant’s evidence, he said that where the dot in the diagram was created was not where his pain was. He said that Dr Jagadeesan had got it wrong. He conceded that she did identify the one and he said, “I don’t understand why she didn’t mention the bellybutton”.
Given the virtually bizarre nature of the Applicant’s evidence concerning the contents of
Dr Jagadeesan’s clinical notes, the Tribunal finds that where such evidence conflicts of those recorded in a contemporaneous document such as those clinical notes, it prefers the account contained in such document unless there is good reason not to do so.
It is also relevant to observe that the Applicant conceded in cross examination that he did not mention to Dr Jagadeesan when he saw her, about the incident of pushing the bin and the lifter at Flaky Jakes which he says was the cause of his hernia, as has been referred to earlier. It seems surprising to the Tribunal having observed the Applicant that if in fact he considered this was the cause of his problem, as he undoubtably did when advancing his case before this Tribunal, he would not have mentioned it very clearly to his treating doctor when he first consulted her. That he did not do so is surprising and raises serious doubts about the credibility of his subsequent claims concerning that incident. It is also another reason why the Tribunal has difficulty accepting his evidence concerning that incident.
On 25 July 2016, the Applicant lodged his first “Claim for Workers Compensation”.[7] The contents of the Workers compensation Claim Form were the subject of some searching cross examination. It is appropriate to refer to some of the contents of the form.
[7] This claim form signed by the Applicant's document PST 3 in the T documents in application number 2018/4879.
Question 10 of the claim form requires the Applicant to identify the diagnosed condition for which the claim was made. In handwriting, the Applicant has written the word “Hernia”. Question 11 requires the Applicant to identify what parts of his body had been most affected by the injury. He included the words “Groin, Stomach”. Question 22 requested that the Applicant identify the address at which he was injured. He identified Flaky Jakes fish and chip shop in Beach Street, Frankston. The location was, “Getting bin off nature strip”.
He provided the same response to question 23 which sought details of what he was doing at the time he was injured. Question 24 require the Applicant to explain what action, exposure or event happened to cause his injury. He responded, “Getting bin to back of truck. Bin was too heavy for truck to lift”. Question 25 required an explanation of what actually injured him or made him ill. The response of the Applicant was “Heavy bin, Stuck in mud”.
The entries on the claim form were the subject of extensive cross examination. There were several reasons for this. Firstly, the Applicant consistently asserted that in July 2016, his groin was not affected.[8] In response to one question put to him in cross examination, he said, “I have never had groin problems and still don’t”. This is contrary to what he has included in the answer to question 11 of the claim for where he says the body part most affected was firstly, the “groin”, and secondly, the “stomach”. When confronted with this, his evidence was disingenuous in the extreme. He stated that he had included the word “stomach” first in the middle of the box which required his completion to answer question 11, and then wrote in “groin” later. He tried to maintain the at the Respondent’s premises, they always fill forms in the middle and that is what he did. He even went further and said that the word groin was written in different pen and is in bigger writing. This evidence on this subject and the entire episode cannot be accepted by the Tribunal. The reference to the word “groin” is consistent with the earlier evidence contained in Dr Jagadeesan’s clinical notes which it will be recalled referred to the groin and is also consistent with the references in the ultrasound report that referred to the groin. It is also consistent with the clinical diagnoses made by both the general practitioner and the radiologist. The Tribunal is not satisfied that the Applicant had completed the claim form and included the word “stomach” and later when he completed the response to question 11, he added the word “groin”. The Tribunal also considers that the Applicant’s explanation is a recent invention designed to explain away the inconsistency in his earlier evidence from the witness box and the references in the clinical notes, the ultrasound report and the claim form, to a groin condition. This is not what he said constituted his claim, that it will be recalled was consistently said by him to be a hernia condition in the region of his belly button that occurred as a result of the incident at Flaky Jakes fish and chip shop in Frankston on
12 July 2016.
[8] The contents of footnote 1 above are referred to and repeated concerning the Applicant’s position on this topic.
The day of receipt of the Workers’ Compensation Claim form from the Applicant on 26 July 2016, Gilbert spoke to the Applicant concerning the alleged incident on 12 July 2016.
He prepared a detailed note which in his evidence, he said he typed that note on the day after the interview which is in evidence and was attachment “DG 1” to his first statement made on 12 October 2018.[9] The file note is described as a “Record of Interview”. The note should be read in its entirety. Gilbert refers to the initial report of the incident and states that initially, the Applicant couldn’t remember any specific incident. He then records that the Applicant said that upon reflection, he remembered moving a heavy bin at Flaky Jakes on 12 July 2016. He attended the site around 1:00 pm and spent about 3-4 minutes manoeuvring the bin to the truck. He did not experience any pain at the time he was moving the bin. The Tribunal observes that this account is different to the one contained in the claim form completed by the Applicant.
[9] Document PST 26 of the T documents in application 2018/7312.
The note records that Gilbert asked the Applicant why he didn’t report the incident or injury at the time. The Applicant replied that he felt some aggravation about five minutes after he had moved the bin whilst he was standing on the footpath but no pain or anything else he felt needed to be reported. He continued working in the days after the incident and felt a “niggle”[10] every now and then, but nothing he felt was untoward, what he felt was just old age. It wasn’t until he noticed the lump in his abdomen that he thought he should get it checked out. He then told Gilbert that it wasn’t until 21 July 2016 that he noticed anything out of the ordinary.
[10] Document PST 26 of T Documents in application 2018/7312
The details of the incident at Flaky Jakes recorded in the Record of Interview by Mr Gilbert once again differs from the version the Applicant gave in the witness box (not to mention in the Initial Incident Report and in Dr Jagadeesan’s clinical notes). He specifically denied that portion of the document which said that he couldn’t remember any specific incident. He then said there was a good chance that Gilbert had made it all up.[11] He was adamant he didn’t say this to Gilbert. What he said he told Gilbert was that the pain keeps on going and not going away. The Tribunal does not accept this evidence from Applicant.
[11] In his Statement of Facts, Issues and Contentions dated 8 December 2019 the Applicant went so far as to say that there was no interview on 26 July 2016. He did not go quite that far when in the witness box. It is yet another example of the Applicant's propensity to exaggerate or embellish. It does not reflect well upon him.
The results of the ultrasound which was conducted on 22 July 2016 were in evidence before the Tribunal. The ultrasound report was described as “ANTERIOR ABDOMINAL WALL LUMP ULTRASOUND”.[12] The document is referred to in its entirety for its full force and effect. However, some matters contained in it should be referred to. Under the heading “Clinical Details” was “Sudden onset of tender abdominal wall lump,? Hernia,? lipoma”. In the section headed, “Findings”, it states that there was a targeted ultrasound study undertaken for an area of concern and a palpable lump in the left lower abdominal wall and groin. In the section headed, “Comment” it identifies a palpable lump in the left lower anterior abdominal wall correlating to a small lipoma. The tender lump on the left groin is correlating to mild reactive lymphadenopathy.
[12] Document ST 7 of the T documents in application 2018/4879
It should be observed that these findings are inconsistent with the evidence of the Applicant that he consistently gave in the witness box that he explained to the treating doctors he saw including the general practitioner Dr Jagadeesan, and presumably those conducting the ultrasound, that the problems he experienced emanated from his belly button. The results of the ultrasound including the details recorded in it clinically conform with the diagnosis undertaken by Dr Jagadeesan as recorded in her clinical notes, and the reason that she referred the Applicant for an ultrasound in the first place. Those reasons were to investigate what she had been told and diagnosed from a clinical examination of the Applicant which revealed an issue in the left groin and a lump in the lower left region also. Staggeringly, the Applicant gave evidence of the first time ever heard mention of groin was when he returned to the doctor and got the results of the ultrasound. The Tribunal cannot accept this evidence from the Applicant.
Following receipt of the results of the ultrasound, the Applicant consulted Dr Jagadeesan again on 25 July 2016. She then prepared a letter of referral to Dr Beneragama, a specialist surgeon.[13] She also prepared a certificate of capacity recording that the Applicant was unfit for work.
[13] He is a colorectal, laparoscopic and general surgeon.
Surgery was undertaken by Mr Beneragama on 6 September 2016. The operation was described as an “ventral hernia repair”. The Operation Report was in evidence before the Tribunal.[14] The “Findings” were “3 separate supra-umbilical hernia”.
[14] Document ST16 in application 2018/4879.
The Applicant returned to work on 20 October 2016 on restricted duties. He was certified for pre-injury work duties as and from 5 November 2016.
CONCLUSION ON THE ALLEGED HERNIA EPISODE IN JULY 2016.
In reaching a conclusion on this issue, some preliminary observations should be made by the Tribunal.
The Applicant contended that because a previous claim had been made by him and admitted by the Respondent for this alleged hernia episode in July 2016 it became “a non-disputed claim”.[15] He put it in layman’s terms that in effect having admitted the July 2016 hernia claim previously, it was bound by that admission and could no longer dispute it in this hearing.
[15] Paragraph 7 of the Applicant's Statement of Facts, Issues and Contentions dated 8 December 2019, are specifically referred to. Submissions of a similar thrust were made by the Applicant in the course of the hearing of this occasion.
The Applicant’s contention was understandably disputed. Counsel for the Respondent directed the Tribunal to several authorities which have held that this Tribunal is empowered subsequently to make findings of fact concerning a claim that may have been previously admitted by a Respondent employer. Reference was made to the leading case of Telstra Corp v Hannaford.[16] Passages of the decision were referred to which found that on the true and proper construction of the SRC Act, this Tribunal is empowered to make findings of fact and effectively undercut the necessary findings of fact made in the initial or original decision of a respondent under section 14 of that Act to accept liability in respect of a claim for compensation.
[16] (2006) 151 FCR 253 at paragraphs [57] to [59]. References also made to a helpful decision of this Tribunal in Zaveczky v Comcare [2020] AATA 4960 at [236]. Another authority also mention was the Federal Court decision of Portors v Comcare [2018] FCA 914 at [26] to [31]. Robertson J observed in that case appositely: "In my opinion, an applicant would have no further entitlements to the payment of compensation for an injury as a result of medical treatment of an injury where it had been found that there was no further entitlements to payment of compensation for the original injury because it was not workplace related."
The Tribunal accepts the submissions made by the Respondent’s counsel to be an accurate statement of the law. Upon a true and proper construction of it, a determination under section 14 of the SRC Act by a respondent does not permanently enshrine every finding of fact upon which the determination was based. It does not otherwise create an issue estoppel, or an admission by conduct or even an election that otherwise binds a respondent to prevent it from thoroughly ventilating all issues of fact and law at a subsequent hearing concerning a further claim, before this Tribunal. As counsel for the Respondent appositely contended in layman’s terms, it means that “the egg can be unscrambled”.
The Tribunal cannot accept the evidence of the Applicant concerning what occurred to him on 12 July 2016. It cannot conclude that the hernia was work-related. The reasons for reaching this conclusion arise from two sources. Firstly, the preponderance of the lay evidence. Secondly, the preponderance of the medical evidence.
The Tribunal repeats the observations it has made on several occasions during those reasons about the Applicant’s evidence.
Walters gave evidence which the Tribunal accepts. In cross examination, the Applicant very forcefully challenged the evidence of Walters about whether he operated the lever on the truck rather than the lifter. However, his evidence at paragraphs 35 to 37 of his witness statement concerning these facts was not challenged. In any event, the Tribunal found Walters to be a truthful and credible witness whose evidence was not reconstructed or made up. The evidence in those paragraphs, it will be recalled was that the Applicant did not say to him that he was hurt or had injured himself when they were at the Flaky Jakes fish and chip shop on 12 July. Further, he did not see any evidence on the Applicant’s face that he had used a lot of effort or that he had hurt himself. He did not make any noise as that indicated he had hurt himself.
That the Applicant did not report the hernia until 21 July 2016 is implausible if he suffered the hernia condition as he alleged during this application and from the witness box.
When he did report it, he was unable to recall any specific incident that triggered or caused the problems that he subsequently said he suffered from. More will be said about what those causes specifically later. The Tribunal prefers what was recorded in the contemporaneous document, which was a business record, namely the Incident Report that was prepared by Mr Gilbert on 21 July 2016. Once again, if there had been a specific incident that caused a hernia in the way that the Applicant described it one would have expected it to have been recorded accurately in the Incident Report and a report made by the Applicant to his employer on the day it occurred.
Similarly, the Tribunal prefers the evidence of Mr Gilbert about what he was told by the Applicant and what he did in completing the Incident Report. The Tribunal found Mr Gilbert to be a credible witness whose evidence was given fairly and impartially. That he did so elevates his credibility in the face of some of the conduct engaged in by the Applicant prior to the hearing of this application. Having mentioned the conduct not all of it needs to be recounted. However, the Applicant on several occasions sent Mr Gilbert text messages of a threatening nature. By way of example relatively recently, the Applicant sent a text to him which said amongst other things “Have fun in jail”. And “Just in case you all think that I’m full shit, have a look at these. Extortion, corruption, fraud and that’s just for starters. Comcare won’t be happy with, non-compliance or destroying evidence”.[17] In the face of this conduct, Mr Gilbert maintained a dignity in the witness box that was a credit to him. Where the Applicant’s evidence conflicts with that of Mr Gilbert, the Tribunal prefers the evidence of Mr Gilbert.
[17] The text forms part of exhibit "DG-12" to the Supplementary Witness statement of Mr Gilbert made on 3 September 2020. This exhibit contains a selection of text messages that use provocative and inflammatory language against Mr Gilbert. The Applicant conceded readily in cross-examination that he had sent those text messages to Mr Gilbert.
Mr Gilbert prepared a detailed record of interview on 26 July 2016 which has been referred to above.[18] Once again, the Tribunal prefers the evidence of Mr Gilbert and how he recorded in the Record of Interview what he was told by the Applicant concerning the incident at Flaky Jakes fish and chip shop. It is yet again a different version of the events from that which the Applicant provided. Critically, the Applicant said that whilst manoeuvring the bin to the truck he did not experience any pain. He also recorded that the Applicant continued working in the days after the event and felt a niggle every now and then. Otherwise, nothing he felt was untoward. It was only when he noticed a lump in his abdomen that he thought he should get it checked out. This is consistent with the entries in the clinical notes of Dr Jagadeesen recorded when she conducted her clinical examination of the Applicant on 21 July 2016.
[18] The Record of Interview was exhibit DG 1 to the first statement of Mr Gilbert made on 12 October 2018.
The Tribunal finds this is an accurate account of what the Applicant informed Mr Gilbert. As noted earlier, the Tribunal rejects the Applicant’s evidence concerning this document and in particular the suggestion that Mr Gilbert has in some way made up its contents. It also should by way of completion note that when Mr Gilbert was cross-examined, the Applicant did not put to him that the record of interview was made up as he had asserted in his evidence in chief referred to earlier in these reasons. Mr Gilbert’s evidence on the creation of this document and its contents remained unchallenged whilst he was in the witness box. It is another reason why the Tribunal prefers his evidence apart from the matters of credibility which have been addressed earlier.
Another matter that is problematic for the Applicant is that the clinical notes of the general practitioner, Dr Jagadeeesan do not support a finding of anything happening on 16 July 2016, or otherwise, as described by the Applicant including in the witness box and his claim form. The clinical notes record the Applicant noticing something occurring on the previous Monday which was not 12 July bearing in mind he consulted her on 21 July. There is no reference to the incident at Flaky Jakes fish and chip shop. She recorded, “Tender in LIF. Palpable mass in LIF”. These observations are consistent with the diagram that she has drawn and included in her clinical notes, which contains a significant sized black dot which indicates the mass, or lump, felt by the Applicant and revealed in her clinical examination of the Applicant. An examination of that diagram reveals that such mass is nowhere near the umbilicus or the bellybutton spot which was emphasised robustly by the Applicant in his evidence. It is on the left-hand side of the body. These observations are consistent with the details recorded by Mr Gilbert in the Record of Interview on 26 July 2016.
The Respondent contends, and the Tribunal agrees, that the image depicted in the diagram, as well as the comments in the clinical notes, recorded by Dr Jagadeeesan are consistent with a conclusion that the Applicant did not suffer an umbilical injury in July 2016. The Tribunal finds that Dr Jagadeeesan has recorded what she clinically observed after examining the Applicant, and further what he told her. The entries in her clinical notes of what he told her are inconsistent with the sudden onset of a hernia caused by lifting or bending in the course of his employment on 12 July 2016 at Flaky Jakes fish and ship shop in Frankston. What is revealed is a lipoma. The examination supports conclusion which the Tribunal reaches that there was not an umbilical hernia present before 21 July 2016.
Associate Professor Renaut has reviewed Dr Jagadeeesan’s clinical notes.[19] He observed that those clinical notes of the consultation on 21 July 2016 revealed some tenderness in the left iliac fossa and a palpable mass. He confirmed that the diagram corresponded to the lipoma that was subsequently confirmed by ultrasound. He concluded and the Tribunal agrees, there is absolutely nothing to suggest that the Applicant had an umbilical hernia that was symptomatic. This was confirmed in the ultrasound where there was no report of an umbilical hernia.
[19] There were two reports from Associate Professor Renaut in evidence for the Tribunal. He is a colorectal and general surgeon who is both highly qualified and vastly experienced. His first report was dated 21 December 2018 and his second report 29 March 2019.
Further, Associate Professor Renaut did not consider the aetiology of the umbilical hernia as related to any amount of heavy lifting or physical exertion, or as he explained it another way; raised intra-abdominal pressure either acutely or chronically secondary to work related activities. He considered it was related to a combination of degeneration of the tissues in the region and a general lack of fitness which appeared to be apparent in the case of the Applicant. He therefore expressed the opinion that he did not consider, if the Applicant did indeed have a hernia, that it was related to his employment with the Respondent. The Tribunal accepts this opinion.
Associate Professor Renaut considered that the referral to the surgeon, Dr Beneragama was inappropriate in that none of the Applicant’s symptoms were related to any putative diagnosis of abdominal wall herniation. He considered that in the circumstances
Dr Beneragama had wrongly come to the conclusion that the Applicant did indeed have a supraumbilical hernia and on this basis an operation was not required. In support of this conclusion, he observed the fact that the Applicant remained symptomatic subsequent to the surgery. He also considered that the operation to remove the mesh, in the hope that it would relieve the Applicant of his abdominal symptoms was completely misguided.
That both operations were in effect not required and the reasons for reaching this conclusion identified by Associate Professor Renaut is highly persuasive. The Tribunal accepts this opinion.
There were two reports in evidence before the Tribunal prepared by Dr Burke, a Consultant Occupational Physician. They were dated 4 July 2017 and 26 July 2017.[20] In those reports, he concluded that he did not believe the Applicant was suffering from any injury or condition sustained as a result of the workplace incident alleged to have occurred on 12 July 2016, and for that matter on 26 March 2017 about which comment will be made later in these reasons. He took detailed instructions from the Applicant prior to preparing both reports.
Dr Burke noted the inconsistency between the Applicant instructing him that his initial symptoms were in the umbilical region (as he indeed stated in his evidence from the witness box at the hearing of this occasion), whereas his general practitioner both in her clinical notes, the medical certificates and report she provided indicated that the symptoms were in the groin region. This was also contrary to the Applicant’s claim and evidence given in the course of this application.
[20] Those reports are document T 23 and T 26 in the T documents for application No 2018/2895.
In reaching the conclusion that he did, Dr Burke observed that the usual criteria for the acceptance of a work-related claim for hernia is development of pain with a lump at the same time as a physically demanding task is performed in the workplace. Dr Burke noted that the Applicant did not report the development of a consistent pain in the umbilical region at the same time as a lifting, carrying, pushing, pulling type task. Hence, based on the available information, he had difficulty accepting that the umbilical hernia developed within the course of his work. This conclusion is consistent with the findings of Associate Professor Renaut. It is also consistent with the facts as found by the Tribunal.
Dr Beneragama, the surgeon who operated on the Applicant prepared a report for the Applicant’s former solicitors dated 21 June 2018.[21] This report was in response to a specific letter to him which asked three questions. In response to the question whether in his opinion the Applicant’s current diagnosis is connected to his employment and how,
Dr Beneragama stated that it was uncertain to him whether it was related to his current employment. He went further and said that the Applicant has a painful scar and that it may not be related to his employment and may be due to intrinsic factors within him that has resulted in excessive scar formation.
[21] This report is found that ST 41 of the T documents in application No 2018/4879.
Insofar as Dr Beneragama refers to intrinsic factors, this opinion is consistent with that of Associate Professor Renaut and Dr Burke.
The opinions expressed by Associate Professor Renaut and Dr Burke are consistent with the contents of an AMA Guide “Evaluation of Disease and Injury Causation second edition, Chapter 18: “Gastrointestinal”, “Hernias”, which was tendered in evidence by the Respondent. The learned authors of this publication opine that genetic and developmental factors are the primary etiologic factors for hernias although conditions that lead to chronically increased abdominal pressure such as obesity, ascites and pregnancy are associated with hernia formation. Smoking is also a risk factor. (The Applicant is a smoker. Indeed, during the hearing of this application on one afternoon by video link he smoked a cigarette on camera. He informed Associate Professor Mendelson that he smokes 7 or 8 cigarettes per day). They express the view that it is not clear that increased intra-abdominal pressure such as lifting is sufficient to cause hernias. Growing evidence in the literature suggests that hernias develop in patients with predisposing weakness of the connective tissue and that hernia formation is not generally the result of a single strenuous event. The observations expressed in this learned publication also are a reason for accepting the opinions expressed by Associate Professor Renaut and Dr Burke and for that matter,
Mr Beneragama.
The Applicant tendered two expert medical reports in evidence in support of his claims concerning the hernia in his contention that it was work-related. The Tribunal cannot place much reliance upon either of them. Neither of those experts gave evidence.
The first report was prepared by Mr Peter Grossberg dated 1 July 2019 who was an obviously highly qualified surgeon. He expressed the opinion that he believed the initial development of the hernia on the balance of probabilities would have been contributed to by the nature of the Applicant’s work. The contents of the report and the Applicant’s evidence concerning it are problematic. The assumptions upon which it is based do not accord with the factual findings of the Tribunal which have been articulated at some length earlier in these reasons. It is a different history. Even the Applicant in cross examination conceded that, “the way he has written it is not how it happened”. These factual inconsistencies include who lifted the bin or assisted lifting the bin, and that he refers to “fellow workers” rather than just one other worker who on the evidence assisted the Applicant. On the first page of the Grossberg report, he says the Applicant informed him that shortly after lifting the container[22] concerned, he complained of pains in his abdomen which was slightly more on the right side of the abdomen. The Applicant steadfastly denied he said this to Grossberg. It is obvious why he would say this because it is inconsistent with his evidence that the pain he experienced was in the region of his belly button or the umbilicus. It was another example of where the Applicant alleged a medical practitioner had taken down something incorrectly. The Applicant was also adamant in the witness box that he did not tell Mr Grossberg that the ultrasound results revealed the existence of a multiple hernia as was noted in his report.
[22] The Applicant in the witness box said that he did not tell Grossberg that “containers” were lifted but rather bins. Grossberg only used the term “container” not bin. He was only able to suggest that Grossberg had typed it up differently to what he had told him. He then protested as he did several times in his evidence where there was a conflict between what a doctor had recorded him as saying and what he subsequently said in the witness box, that it was not his “fault”.
Another reason why the Tribunal prefers Associate Professor Renaut’s opinion over that of Mr Grossberg is that he, unlike Mr Grossberg had the benefit of the general practitioner’s clinical notes of July 2016. Those notes recalled were also inconsistent with the evidence given by the Applicant.
Dr Clayton Thomas, a consultant in Rehabilitation and Pain Medicine prepared a report on 23 February 2020. He had been requested to do so by the Applicant’s then solicitors. He had been furnished with an array of material prior to the preparation of that report they included both reports of Dr Burke and also that of Mr Grossberg. His opinions are quite limited. He concludes that the Applicant sustained an umbilical hernia for which he had undergone two surgical procedures. He concluded that two subsequent episodes (in March and July 2017)[23] were materially contributed to by the initial incident and subsequent surgery in 2016. That being the incident on 12 July 2016.
[23] The report did not identify specific details of each of the incidents in March and July 2017. In reciting relevant facts there was only one subsequent incident referred to by Dr Thomas after the Applicant had his operation in September 2016. That subsequent incident is recited in the report was consistent with the Applicant's evidence of the events that occurred in March 2017. There were no details of any other subsequent incident referred to in the report. Without knowing what the details of such incident were, it leaves the Tribunal to speculate, it is a reason also, why it does not prefer Dr Thomas's report or places less weight upon it.
The Tribunal prefers the reports of Associated Professor Renaut and Dr Burke over the opinion of Dr Thomas because the assumptions upon which it is founded are different to the factual findings of the Tribunal. Regrettably, no letter of instruction to him was in evidence. Dr Thomas found that the Applicant sustained an umbilical hernia. He does not go so far as to specifically say it was as a result of the incident on 12 July 2016. The Tribunal infers this is what he meant. However, the Tribunal has found this was not the case. This is not to be critical of Dr Thomas in a professional sense. Ultimately, he only expressed an opinion based upon the facts as they were explained to him by the Applicant or given to him in a letter of instruction. He has not had the benefit of the extensive evidence before the Tribunal particularly, the oral evidence of several witnesses.
Also, Dr Thomas’s reasoning is extremely limited. He does not consider other possible causes of a hernia and exclude them. Particularly he does not consider as do the other experts the possibility that considerations of smoking, general lack of fitness, degeneration of tissues in the region and excessive weight, amongst other things, may have caused or contributed to a hernia. He does not tackle the question as the other experts do, that they do not consider the aetiology of the umbilical hernia is related to any amount of heavy lifting.
This must also be coupled with the inconsistency between the instructions that have been given to Dr Thomas via the Applicant and the details recorded in the clinical notes of
Dr Jagadeeesan from July 2016 which had been referred to at length in these reasons.
Dr Thomas was furnished with 21 pages of what are described as “Various reports of Baxter Medical Clinic”. However, the Tribunal does not know if he considered the clinical notes of Dr Jagadeeesan dated 21 July 2016, and if so, what effect is that if any, on him reaching the opinion that he did. He certainly did not mention them in his report. Given the significant differences between the contents of Dr Jagadeeesan’s clinical notes and what instructions or patient history the Applicant gave Dr Thomas, one is left to speculate. Had he been furnished with them, one would have expected him to have commented on them given the obstacles they pose to reaching the conclusion that he did. This significant gap in the reasoning of the report prepared by Dr Thomas is such that the Tribunal cannot accept his conclusions over those expressed by Associate Professor Renaut and Dr Burke.
By way of completion, the Tribunal reiterates that it accepts the opinions of Associate Professor Renaut and Dr Burke that the Applicant did not suffer an umbilical hernia as a result of his work duties performed with the Respondent.
Accordingly, the Tribunal affirms the second reviewable decision and the fifth reviewable decision which relate to an alleged hernia sustained on 12 July 2016.
THE ALLEGED REOCCURANCE OF THE HERNIA IN MARCH 2017.
In his evidence from the witness box, the Applicant stated that the hernia reoccurred on a Saturday when he was moving 200 bins for what was known as the Frankston Council street litter run. (The drivers gave the run various colourful names due to the contents of the bins containing dog excrement). The Applicant did not work on Sunday but was all right on the Monday, however the following day, he had to go see a doctor. He said there was no witness to the events on the Saturday. He really couldn’t describe what actually happened on the Saturday. The witnesses he called to corroborate those events, Messers, Joyce, Ardley and Kerchaval were not present on the Saturday. The Applicant conceded in cross-examination that they were not present on the Saturday in March 2017.
In his statement, he said that on Saturday 26 March 2017, he was approximately three quarters of the way through the Frankston Council street litter run when he noticed that his stomach was starting to become stiff. Towards the end of the run, it became sore. He managed to complete his day’s duties and observed that upon completion, the pain in his stomach had increased further. It deteriorated by the time he got home. He then worked on Monday as the pain had subsided. By the end of that day, the pain in his stomach had returned.
By Tuesday lunchtime, he was still experiencing pain and made an appointment with
Dr Singh.
The Applicant then spoke to Mr Gilbert. Mr Gilbert following that conversation at 1.05pm on Wednesday 29 March 2017 emailed Ms Boron. In that email, he recounted the contents of his conversation with the Applicant. The Applicant told him that his stomach was sore over where the hernia was. He informed Mr Gilbert that he didn’t know what it was and had gone to see his doctor that day who had given him the rest of the week off. The doctor also booked him in for a scan. The second last sentence of the email will be repeated in full. It stated, “I asked Tony if he believed it was work-related, he said he wasn’t even sure what the issue is”.
The Applicant conceded that the account of the conversations in the earlier part of the email recorded by Mr Gilbert was accurate. Concerning the second last sentence of the email which has been repeated in full, he initially in the witness box said it was not true. His evidence then shifted to him being unable to recall if he said this. The Tribunal prefers
Mr Gilbert’s evidence that he accurately recorded what the Applicant told him. This indicates that the evidence that the Applicant gave of the events of 26 March 2017 and thereafter, was very much embellished and/or a reconstruction. It is a reason why the Tribunal finds that there was no work related recurrent (or recurrence of) a small hernia as claimed by him on or about 26 March 2017.
On Friday, 31 March 2017 the Applicant telephoned Ms Boron. He said to her words to the effect that he had suffered a reoccurrence of his hernia as a result of moving 200 bins on Saturday. She recorded, consistently with what Mr Gilbert was informed in their conversation on 29 March 2017, that the Applicant didn’t think he was aware of what caused the possible recurrence. Immediately upon completion of the phone calls, she emailed
Mr Gilbert with the details of it. The account of the conversation given in the email by
Ms Boron was not challenged. The Tribunal accepts its contents as an accurate account of that conversation between them. This further indicates that the evidence that the Applicant gave from the witness box and in his statement of the events of 26 March 2017 and thereafter, was very much embellished or a reconstruction. It is another reason why the Tribunal finds that there was no work related recurrent (or recurrence of) a small hernia as claimed by him on or about 26 March 2017. Had the Applicant been certain of what was the source of his pain and discomfort, particularly if it was work related, he would have told
Mr Gilbert and Ms Boron in no uncertain terms. That he did not do so counts much against him. It leads the Tribunal to conclude that the version of it given in evidence is a recent invention.
Mr Gilbert responded upon receipt of the email from Ms Boron, and posed the question with which the Tribunal must agree, that if the Applicant thought he had hurt himself on the Saturday, he would have let everyone know well before the following Tuesday.
After seeing Dr Singh, a further ultrasound was ordered the report of which was dated 31 March 2017 stated, “Possibility of a small recurrent hernia is raised”. He was referred to
Mr Benegerama, the treating surgeon which he saw on 18 April 2017.
The Applicant was certified as unfit for work from 29 March 2017 until 9 April 2017.
On 4 April 2017 the Applicant lodged a workers’ compensation claim with the Respondent. The injury claimed was for the diagnosed condition of a hernia affecting his stomach.
There are several obstacles to the Applicant’s contentions concerning an alleged reoccurrence of the hernia in 2017.
He readily conceded as noted, that Messers, Joyce, Ardley and Kerchaval were not present at the time when he said that he suffered the reoccurrence of the hernia.
He did not notify anyone at the Respondent of the alleged incident until much later. The Tribunal accepts that he informed Mr Gilbert and Ms Boron that he did not know what caused the possible re-occurrence whatever it may have been. His subsequent account of what happened is as the Tribunal found, a recent invention.
Mr Benegerama after having clinically examined the Applicant on 18 April 2017 prepared a report that was in evidence before the Tribunal.[24] Mr Benegerama in that report stated amongst other things “on examination there is no recurrence of the hernia. The firm area that he can feel is just scar tissue around the mesh. It is slightly tender to touch but clinically there does not appear to be any hernia recurrence”.
[24] Document T 10 of the T documents in application No 2018/2895.
The report of an ultrasound undertaken on 21 June 2017 was in evidence.[25] It found that there was no evidence of any recurrent hernia seen, and no collection or haematoma demonstrated. The anterior abdominal wall appeared normal on ultrasound examination apart from mesh from the patient’s hernia repair.
[25] Document R 19 of the Respondent’s tender bundle.
A further report from the treating surgeon who performed the hernia operation on the Applicant in 2016, Mr Beneragama of 21 June 2018 was also in evidence.[26] He had been asked to see the Applicant regarding his “ongoing problems with his umbilicus”.
Mr Beneragama unequivocally concluded that there was no recurrence of his hernia but a very painful scar.
[26] Document R 23 of the Respondent’s tender bundle.
Associate Professor Renaut was asked to provide a diagnosis of the condition suffered by the Applicant in March 2017. He concluded that the Applicant was suffering from a seroma, secondary to the presence of mesh which had been inserted during the hernia operation that he had previously undergone. He noted that the development of the seroma is not an unusual complication of the repair of the hernia undertaken using mesh. It is the body’s response to the presence of a foreign material and usually they will dissipate spontaneously without the need for intervention.
Associate Professsor Renaut opined that on the basis he did not consider the original pathology was sustained as a result of the Applicant’s work he similarly concluded that the seroma could not be deemed a work-related injury. The Tribunal accepts this opinion of Associate Professor Renaut.
Dr Burke did not believe that the Applicant was suffering from any injury or conditions sustained as a result of a workplace injury that occurred in July 2016 and/or March 2017. He reached this conclusion because he stated that any paraumbilical hernia from which the Applicant may have suffered had been successfully treated. There was no evidence of a recurrence of the hernia. This opinion is consistent with that of the other doctors referred to already. He concluded that the Applicant’s current symptoms did not represent any injury or condition.
By reason of all these matters, the Tribunal concludes that there was not a re-occurrence of the hernia or as it was referred to in the reviewable decision a “recurrent small hernia”, as alleged. It was on the preponderance of the evidence that pain or discomfort was caused by a very painful scar as reported by the treating surgeon Mr Beneragama in his report of 21 June 2018.
As the Tribunal has found that the hernia repair surgery undertaken on 6 September 2016 by Mr Beneragama was not work-related, or caused by work-related injury, the painful scar condition was also not one which arose from the course of the Applicant’s employment. More specifically, the Third reviewable decision which denied liability for a claim for “pains to the umbilicus post-surgery, seroma, scar tissue, scarred and contracted mesh” was not work-related in the relevant sense.
THE ALLEGED REOCCURANCE OF THE HERNIA IN JULY 2017.
Some relevant background matters should be referred to concerning this matter.
The Applicant’s then general practitioner Dr Singh examined the Applicant on 18 May 2017. He issued a Certificate of Capacity which stated amongst other things that the Applicant was fit for modified duties between 13 June 2017 and 7 July 2017. The restrictions contained in the Certificate of Capacity stated that no heavy lifting should be undertaken as suggested by his treating surgeon. No more than 5 kg of lifting was the specified restriction. There were other restrictions concerning the functions to be carried out by the Applicant and the brand of truck that he could drive. There was a prohibition on him driving another specified brand of track.
Upon receipt of this Certificate of Capacity from Dr Singh dated 10 June 2017,
Ms Boron arranged for the Applicant to see Dr Burke. A report received from Dr Burke on 4 July 2017.
Dr Burke concluded that the Applicant had the capacity to return to his preinjury driving duties. He did not agree with the lifting limit of 5 kg. he further believed that it should be possible to formulate a graduated return to work program to enable the Applicant to return to his preinjury duties. He recommended this be achieved over a four-week period, commencing at four hours preinjury duties and the remaining four hours office-based.
Following the recommendations of Dr Burke, Ms Boron established a Rehabilitation Program for the Applicant. That program was discussed between Mr Gilbert and the Applicant. The rehabilitation program had the Applicant performing some pre-injury duties for part of the day and the remainder of his duties being office-based, commencing with four hours of normal or preinjury duties and four hours of office-based duties. It was established with a view to having him return to his preinjury hours and duties. Its commencement was to be from 17 July 2017. There was a graduated return to 8 hours of normal duties as and from 14 August 2017.[27]
[27] The Rehabilitation program is document T 25 of the T documents in application No 2018/2895.
It was common ground from all the witnesses that the Applicant did not agree with
Dr Burke’s opinion concerning the Applicant’s capacity to lift and in particular that there did not need to be a 5 kg lifting limit. He would only initial the Rehabilitation Program and refused to sign it.
The Applicant attended at work on 17 July 2017. He was informed by the leading hand that he would be carrying out pre-injury duties but on restricted hours. This was in accordance with the restricted duties specified in the Return to Work Schedule, of the Rehabilitation Program.
His evidence was that in the first week of his back to work program, he hurt his stomach lifting bins in Shannon’s Mall Frankston and had two days off work. Mr Kercheval in his evidence said that he worked with the Applicant at Shannon’s Mall. They were working back to back, he observed the Applicant return to the truck as he put it in “agony”. He did not see what happened to the Applicant.
Surprisingly, there was no evidence before the Tribunal that he reported the Shannon’s Mall incident to the Respondent on that day. Once again, one would have expected that if the Applicant had experienced the sudden onset of pain in his stomach whilst carrying out his duties as he suggested, that a report both verbal and written would have been made immediately.
On or about 25 July 2017, the Applicant stated that he hurt his stomach again lifting approximately 12 bags of dog waste[28] from the back of a utility to the rear of the truck at Lloyd Park in Langwarrin leading to a further three days off. No other witness saw this event occur.
[28] In paragraph 28 of his witness statement dated 27 March 2019, document T 17 of the T documents in applications No 2019/3601, 3602 and 3603. He said that he lifted 12 bags. In other evidence before the Tribunal he did not specify the number 12.
He was absent from work on the following day, namely 26 July 2017. He notified Operations Supervisor, Isbister of his absence from work that day in a phone call with her early that morning. It appears that he did not give her a reason for his absence.
On the morning of 31 July 2017, the Applicant spoke to Mr Gilbert concerning the incident in Shannon’s Mall and Lloyd Park. Mr Gilbert following that conversation immediately emailed Ms Boron. The Applicant raised concerns he had about the report of Dr Burke and his opinion that the Applicant was fit to return previous duties without a lifting limit. This was raised in the email. Mr Gilbert recorded that the Applicant said he had experienced some soreness the previous week. As he was feeling good on the Tuesday, he probably overdid it by throwing to dog waste bags into the truck at the same time. There was also some discussion about the Applicant’s mental health issues. At the return of the Applicant, at the completion of his shift, Mr Gilbert and the Applicant had another conversation. Once again, he explained to Mr Gilbert that he had been off work the previous week due to general soreness in his stomach. He also stated that he had been feeling good on the Tuesday when he threw two dog bags one in each hand, into the back of a truck. The next day he woke up with a sore stomach.
The Applicant then completed in handwriting a document known as an “Incident Non-Conformance Report”.[29] It states that the Applicant first hurt his stomach flipping bins in Shannon’s Mall on 17 July, and again putting bags in the back of a truck on 25 July. The date of the Shannon’s Mall incident is not referred to in the document. However, it is noted that the matters were first reported to Bodley on 26, 27 and 28 July 2017 and to
Mr Gilbert on 31 July 2017.
[29] Document 112 of the Personnel Documents (exhibit R-6).
The Tribunal notes there is an inconsistency between the contents of paragraph 28 of the Applicant’s witness statement made on 27 March 2019 where he says that he lifted 12 dog bags whereas in the two conversations on 31 July 2017 with Mr Gilbert he said only two. The Tribunal finds that the statement in paragraph 28 of his witness statement cannot be correct. It is yet another example of the Applicant’s propensity to embellish his evidence.
The Tribunal cannot accept that the events at Shannon’s Mall and the Park in Langwarrin, in July 2017 as described by the Applicant were a recurrence of a hernia.
As was pointed out by Associate Professor Renaut, an ultrasound was undertaken on
8 August 2017. The diagnosis of the condition in the ultrasound is unclear. He did not consider it represented a recurrent hernia and that it was work-related.
A CT scan was performed on 6 September 2017, its findings were non-specific. However, it excluded the possibility of a recurrent hernia. Associate Professor Renaut also repeated that he did not consider it was work-related in any event.
Additionally, there are two reports in evidence from the Applicant’s treating surgeon,
Mr Benegragama dated 6 September 2017 and 13 September 2017 which were both prepared following physical examinations of the Applicant. Both of them unequivocally say that there is no evidence of the recurrence of a hernia. What was evident was a firm mass deep to the scar or perhaps more accurately described as excess scar tissue around the mesh that had been inserted. There was a small seroma associated with it.
For the sake of completeness, it should be observed that a further CT scan was taken on 29 June 2018. The results of that scan were unclear. However, there was no evidence of a recurrent hernia. Associate Professor Renaut also opined nothing to suggest the condition was work-related.
Another matter should be mentioned that occurred shortly after the Applicant complained of hurting his stomach in late July 2017.
Mr Gilbert gave evidence that on 7 August 2017, one of the Respondent’s employees one Sykes, came into his office questioning whether the Applicant should be lifting bags of concrete having just observed him do so. When the Applicant returned to Gilbert’s office, Gilbert asked him if he had lifted a 20 kg bag of rapid set cement that morning as Sykes had informed him. The bags are clearly marked as weighing 20 kg. Indeed, a photograph of the bags concerned was in evidence before the Tribunal.[30] In response to this question, the Applicant said he did and that he was feeling pretty good. He further said to Mr Gilbert that he took his time and used the correct lifting techniques. Mr Gilbert informed the Applicant that he had a responsibility of following both the return to work plan and certificates issued by his doctor. Gilbert asked the Applicant what his doctor would say if he knew he had lifted 20 kg. The Applicant agreed and stated that he would not do it again.
Mr Gilbert immediately made a file note of this conversation which was in evidence.[31] The Tribunal accepts the file note as being an accurate record of the substance of the conversation between them.
[30] It is found in the Personnel Documents (exhibit R 6) as part of document 148.
[31] Document T 29 of the T documents in application No 2018/2895.
The issue of lifting a 20 kg bag of cement on 3 August 2017 was also considered at a performance management meeting that subsequently occurred on 15 August 2017. Present at that meeting were the Applicant, Mr John Simpson who attended in his capacity as an employee support person (he was also a delegate of the Transport Workers Union), Bodley and Isbister on behalf of the Respondent. Bodley took notes of what occurred in the meeting and typed them up in a document entitled “Record of Interview”.[32] A specific question was asked of him whether he lifted the 20 kg bag of cement on 3 August 2017. His response was: “Yes- felt okay and I did not lift it-just carried it to the back of the Ute”.
[32] This document appears in several places it was attachment "GB 6" to document T 22 of the T documents in application No 2018/7312 (exhibit "R 1").
The Applicant denied the substance of the conversation recorded in the file note by Mr Gilbert on 7 August 2017.
His version of the events is that he was directed to lift the bag of concrete by the Operations Supervisor, Isbister, which he did under protest. The Tribunal does not accept this explanation by the Applicant. It prefers the contents of the contemporaneously made file note of Mr Gilbert.
In cross-examination when probed, the Applicant reluctantly conceded that he did make the statement recorded by Bodley in his notes of the Performance Management Meeting on 15 August 2017.
The preparedness to lift or carry a 20 kg bag of concrete or cement is at the very least inconsistent with what he said occurred in Shannon’s Mall and at the park in Langwarrin. It is indicative of the Applicant being fit for duty as was considered to be the case by Dr Burke in his report. It is also consistent with the Applicant not suffering from any significant condition in his stomach at the time. Had there been any doubt or concerns on the part of the Applicant that he risked causing further injury or pain to his stomach region, he simply would not have lifted the bag of cement.
CONCLUSION ON THE SECOND, THIRD, FOURTH AND FIFTH REVIEWABLE DECISIONS.
By reason of the foregoing consideration, the Tribunal concludes that the correct and preferable decisions on the second, third, fourth and fifth reviewable decisions is to affirm them.
THE MENTAL HEALTH CLAIMS.
These claims are the subject of the first reviewable decision and the sixth reviewable decision.
THE EXPERTS’ REPORTS.
There were several reports in evidence from various mental health professionals. Only Associate Professor Mendelson and Dr Grech gave evidence at the hearing of the application.
Dr David Weissman, a consultant psychiatrist prepared a report dated 14 December 2018. His report was prepared after he saw the Applicant on that day for a detailed psychiatric interview, impairment assessment and report.
He diagnosed the Applicant as suffering from a chronic adjustment disorder with a mixed disturbance of emotions, of mild to moderate intensity or severity. He expressed the opinion that broadly speaking this diagnosis seemed to be employment related.
He described the source of this disorder as what he described as work stress. He identified those stressors as relating to the allegations and perceptions of poor, unsatisfactory and unfair treatment and management of the Applicant, by his employer and management. The specific instances that he identified in the report were that he was returned to “full duties” in or around mid-July 2017 by Mr Gilbert reportedly contrary to the Applicant’s treating doctor’s recommendations. There was also reference to the disciplinary meeting that he attended shortly thereafter which as will be noted later in these reasons led to a written warning being given to him.
Dr Weissman concluded “broadly speaking”[33] that the Applicant’s alleged stress and grievances were partly related to the consequences of his (work-related) physical condition, and partly to a combination of intertwined “industrial” and “disciplinary” matters.
[33] Document ST 14 of the T documents in application No 2018/3601-3603.
There was a brief report from another Consultant Psychiatrist, Dr Robert Kruk dated 20 January 2019. He concluded that the Applicant had an adjustment disorder on the background of a work-related abdominal hernia and subsequent loss of fitness for work.
There were four reports in evidence from a Consultant Clinical Psychologist, Dr Paul Grech. Dr Grech has treated the Applicant under a Mental Health Plan since approximately 16 June 2017.
The first report of Dr Grech dated 12 October 2017 identified the Applicant as suffering from a severe range of depression. In other parts of the report, he described it as severe reactive depression directly connected with fluctuating pain emanating from a workplace injury suffered in July 2017.
A further report from Dr Grech dated 10 October 2018 once again described the Applicant as suffering from a severe reactive depressive condition directly connected with fluctuating pain emanating from a workplace injury suffered in July 2017. In that report, he also opined that the Applicant’s depression had been compounded by his inability to work and a legal impasse in relation to a resolution of his claim.
Another report was in evidence from Dr Grech of 8 May 2019. In that report, he stated that the Applicant suffers from severe anxiety and clinical depression. There were several stressors identified in that report. There was the original injury is said to have occurred on 18 July 2017. The consequential surgery was referred to. The alleged re-occurrence in March 2017 was also identified. Another stressor identified by Dr Grech was the opinion of Dr Burke that the Applicant could return to work with no lifting limit placed upon him. He noted that after this return to work program with no weight limit on what he could lift had been implemented, he injured himself twice, the Applicant believed that the Respondent’s management did not believe him. There was also a re-occurrence of the hernia in July 2017 identified. The rejection of the Applicant’s March and July 2017 compensation claims was said to have also compounded the stress that the Applicant experienced. He concluded that the Applicant was suffering from a severe reactive depressive condition directly connected with fluctuating pain emanating from a workplace injury suffered in July 2017.
Finally, there was a report from Dr Grech dated 3 January 2017. He also in that report identified the Applicant as suffering from severe anxiety and clinical depression. The same stressors were identified in that report as in the May 2019 report and need not be repeated.
Associate Professor Mendelson prepared a very detailed report on 31 December 2018. He diagnosed the Applicant as suffering from an adjustment disorder: mixed anxiety and depressive reaction as defined in the “ICD-10 Classification of Mental and Behavioural Disorders”, “Clinical descriptions and diagnostic guidelines”, World Health Organisation, Geneva 1992. Associate Professor Mendelson also stated that in his opinion, the nature and severity of the symptoms did not warrant the diagnosis of what had been referred to by Dr Grech as a severe reactive depressive condition. Concerning the aetiology of the Applicant’s adjustment disorder, he expressed the opinion that it developed in response to several stressors that he identified. Those stressors were having been advised by Dr Burke that he was at risk of losing his job with the respondent, a dispute about what work duties he was considered fit for by the Respondent, a dispute about what work duties he was considered fit to undertake, disappointment at not having been successful in securing the position at the Tyabb “transfer station” and having been issued with the warning letter of 8 June 2017 (which will be addressed later in these reasons).
He also referred to the ongoing stress caused by the fact that the claims had not been resolved. Associate Professor Mendelson also recorded in his report that the Applicant blamed Mr Gilbert for what had happened to him. He stated that he used words to the effect that he was always thinking that he wanted to kill Mr Gilbert, “I can’t kill Darren Gilbert it’s all because of Darren Gilbert”.[34] Associate Professor Mendelson observed that this ongoing in betterment was contributing to the perpetuation of the Applicant’s emotional distress and manifestations of anxiety.
[34] Document ST 16 of the T documents in application No 2019/3603.
Further report from Associate Professor Mendelson was dated 27 August 2020. He repeated his previous diagnosis of an adjustment disorder: mixed anxiety and depressive reaction. He referred to the same stressors being the allegation that Dr Burke told him he was at risk of losing his job with the Respondent, the unsuccessful application for the position Tyabb, a dispute about what work duties he was considered fit to undertake and having been issued with the warning letter on 8 June 2017. He also reiterated that the Applicant’s emotional symptoms upon which the diagnosis of adjustment disorder was based, had persisted after the Applicant ceased work in August 2017. This was the result of financial difficulties, involvement in litigation and the Applicant’s anger and sense of embrittlement over the way he considered he had been mistreated by his employer and in particular, Mr Gilbert. He reiterated that he did not agree with the diagnosis made by
Dr Grech. The reason for this was that he had the Applicant complete a self-rating symptom checklist on which he endorsed “plethora” of “somatic and psychological symptoms” that “placed him in a severe range of depression”. Associate Professor Mendelson said this is not a valid method of reaching the diagnosis of a possible psychiatric disorder or determining whether or not a mental illness is present. He stated that at best such questionnaires can be used to monitor the outcome in response to treatment of a diagnosed psychiatric disorder, or to screen for possible psychiatric illness; symptom checklists that involve endorsement of what might be considered “leading questions” concerning possible emotional symptoms have no diagnostic validity.
A final report from Associate Professor Mendelson was dated 8 December 2020. He had for the purposes of preparing this report Dr Grech’s clinical notes together with the clinical records from the Baxter Medical Centre. He observed several things. The Applicant’s first consultation with Dr Grech on 16 June 2017 occurred prior to the examination conducted on the Applicant by Dr Burke on 29 June 2017. The referral to Dr Grech apparently followed the Applicant’s consultation with Dr Singh on 10 June 2017. There is no other reference in the material prior to that date of any emotional symptoms being suffered by the Applicant. The entry in the clinical records of Dr Singh for 10 June 2017 note that the mental health plan is required because the Applicant had been stressed and bullied at work. What constituted such conduct was not identified. Associate Professor Mendelson considered that given the absence of any other information as at 10 June 2017, it would appear that missing out on the Tyabb position and having been issued with the warning letter were the factors that led to the comment in the clinical records by Dr Singh that the Applicant was stressed and bullied at work leading to his referral to Dr Grech. There was the subsequent referral to Dr Burke where he was advised that he was at risk of losing his job. That was also followed by the dispute related to the opinion expressed by Dr Burke concerning the Applicant’s physical condition-as to what work duties he was considered fit to perform. By reason of these matters, Associate Professor Mendelson continued to hold the opinion that it was the concatenation of factors that was responsible for the persistence of the Applicant’s emotional symptoms which he diagnosed as an “Adjustment disorder: Mixed anxiety and depressive reaction”.
Associate Professor Mendelson continued to hold this opinion when he was in the witness box. In his evidence to the Tribunal at the hearing of the application, he identified four stressors as follows:
(a)being advised by Dr Burke that he was at risk of losing his job with the Respondent;
(b)what work duties he was fit to undertake;
(c)his unsuccessful application for the Tyabb position; and
(d)the warning letter of 8 June 2017.
An interesting feature of Associate Professor Mendelson’s evidence from the witness box was that he stated that he prefers to avoid using the term “causation” and prefers the term “aetiology” as it is the equivalent of something that occurs which is a more appropriate approach to adopt when dealing with psychiatric conditions.
He also observed that he has had experience with people who refer to such experiences as bullying and harassment. Often they are terms used when the experiences they have are something other than bullying and harassment. However, they perceive it as such and is being unfairly treated which prompts them to use the term bullying. He expressed the opinion having observed the Applicant for some time that he was aggrieved and embittered by the way he had been entreated by his employer. This condition has continued.
Dr Grech to his credit in cross examination readily conceded that he would defer to the opinions of a Consultant Psychiatrist such as Associate Professor Mendelson. The Tribunal did not take him to be challenging in any way, the conclusions and diagnoses expressed in any of Associate Professor Mendelson’s reports. Therefore, little more will be said about Dr Grech’s evidence in these reasons.
The Tribunal prefers the opinion expressed by Associate Professor Mendelson that the Applicant suffers from an “Adjustment disorder: Mixed anxiety and depressive reaction” for several reasons.
Associate Professor Mendelson is a vastly experienced and highly qualified Consultant Psychiatrist. He was the only psychiatrist to give evidence at the hearing of this application. His reports were detailed and carefully explain the pathway of reasoning leading him to make the diagnosis that he did. He also referred to learned publications such as the ICD-10 Classification of Mental and Behavioural Disorders, Clinical descriptions and diagnostic guidelines, from the World Health Organisation.
Also, the opinions expressed by both Dr Wiseman and Dr Kruk do not substantially vary from that of Associate Professor Mendelson. Dr Wiseman diagnosed a chronic adjustment disorder with mixed disturbance of emotions of mild to moderate intensity. It is a similar diagnosis. Dr Kruk diagnosed an adjustment disorder which is what Associate Professor Mendelson diagnosed. Therefore, the weight of psychiatric evidence or opinion perhaps more accurately, supports the contention that the Applicant suffers from an adjustment disorder rather than depression or a chronic depressive illness as was suggested by
Dr Grech in his reports.
Having determined what the symptoms are from which the Applicant suffers, a consideration will now be undertaken of the stressors identified by Associate Professor Mendelson.
THE TYABB ROLE.
This position and the Applicant’s attempt to obtain it occupied some time in the course of the hearing of this application. The Applicant forcefully maintained that his failure to be awarded this position was part of a program or pattern of bullying, hounding and lack of support, or as he occasionally put it, not being listened to by the Respondent.
The Tyabb depot of the Respondent was a separate division from the Mornington depot to which the Applicant was attached or more accurately from which he worked. The facility at Tyabb is a green waste facility. An internal advertisement was circulated by the Respondent in approximately March 2017 for a position there which involved driving a truck for the purposes of delivery of mulch. It is fair to say that this was of interest to the Applicant because it did not involve lifting. As he put it, the position was a better option for him considering his physical condition. It was more a strictly driver’s job rather than involving any other physical activities, as his then current position required.
An added attraction of the Tyabb position was that it involved set hours most likely from approximately 8:00 am until 4:00 pm each day. The role of the Applicant then had with the Respondent of rear lift driving involved early starts, with long hours and variable shifts. Tyabb was a less demanding role.
The Applicant approached Mr Gilbert and expressed interest in applying for that position. He said that he was advised by Mr Gilbert to apply online and to use him as a reference. Mr Gilbert agrees with this. Mr Gilbert also informed the Applicant that it was a different site, with a different manager and he would have to apply for the position like everyone else. Mr Gilbert emailed the manager of the site at Tyabb, Mr Racher to inform him that the Applicant was interested in the job. It was written supportively and sympathetically to the Applicant’s position.[35]
[35] The Email is attachment "DG 2" to the statement of Mr Gilbert of 12 October 2018 which is document T 26 in the T documents in application No 2018/7312.
Mr Gilbert also gave evidence that the Applicant inferred that Mr Gilbert could automatically arrange for the Applicant to get the position at Tyabb. This was not the case; it was a matter for the management of the Tyabb depot to consider all applications and select a candidate of their choice.
The Applicant also spoke to Ms Boron about applying for the position. She informed him that she could not assist in obtaining the role. However, if he were interested and thought he was suitable for the role, she encouraged him to apply. She had no involvement in the decision to hire anyone for that position.
The Applicant completed the online application form, and also wrote a letter in support of the application.[36] Both those documents were in evidence before the Tribunal. The online application form asked several questions about any medical condition, disability or injury that might restrict an applicant’s ability to perform the required tasks and also asked whether the Applicant had been involved in any work-related accidents in the last five years. The Applicant answered no to both of those questions.
[36] The online application form completed by the Applicant is document R 4 of the Respondent's tender bundle.
His evidence was that he heard nothing more about such application until 5 May 2017. On that day, he said that he had a conversation with Ms Boron and asked her about the position at Tyabb. She immediately rang the Tyabb depot and spoke to Mr Racher who informed her that the position had not been filled.
The Applicant stated that within a week of that phone call, he found out that another work colleague from his depot had been given the Tyabb job. That person lasted approximately one month before the job was apparently given to another colleague of the Applicant from the same depot. The Applicant was never given any explanation as to why he was unsuccessful in his application for the job at the Tyabb depot. It was not explained to him why he would not have been suitable for the position. He further stated he was annoyed at the time because of the lack of communication and felt that Mr Gilbert did not support his application. He then said that he accepted that he was unsuccessful and moved on.[37]
[37] Document T 17 of the T documents in application No 2019/3603- This comment was made in paragraph 10 of his statement.
On 26 May 2017, the Applicant and Mr Gilbert had a conversation. Mr Gilbert in accordance with his usual practice made a file note of those discussions which the Tribunal finds is an accurate account of what was said in that conversation. The Applicant said amongst other things, that he believed he had been shafted, and that it was the Respondent’s responsibility to find him alternative work as it was looking unlikely that he would be able to continue doing rear lift work. This comment to Mr Gilbert is inconsistent with the contents of paragraph 10 of his statement previously referred to wherein he said that he accepted that he was unsuccessful with his application for the Tyabb position and moved on.
The Tribunal does not accept that Mr Gilbert did not support the application for the Tyabb position made by the Applicant. The email that he sent to Mr Racher is more than adequate evidence of that fact. At the end of the day the decision was not Mr Gilbert’s. It was a different depot. The Tribunal found that at all times Mr Gilbert was sympathetic to the Applicant’s position. He did all he realistically could to assist the applicant obtain the Tyabb role and in particular sent the email. There was nothing more he could do as it was not his decision to make.
Ms Boron also encouraged the Applicant to apply for the position. She was clearly very supportive of him and his endeavours to secure the position.
It is apparent that there were other candidates for the position and for whatever reason the Respondent, as it was entitled to do, awarded the position to someone else.
Ms Boron made enquiries with the Human Resources Department of the Respondent concerning the application for the Tyabb role. Contrary to what the Applicant stated, he was interviewed by Mr Racher, the depot manager. He decided to award the position to another applicant, Mr Joyce. One of the reasons apparently, why the Applicant was unsuccessful was because Mr Racher wasn’t certain about the Applicant’s approach to customer service and engagement with customers. Having had the opportunity to observe the Applicant over some days, the Tribunal can understand a prospective employer reaching this conclusion.
PERFORMANCE MANAGEMENT ISSUES.
The Applicant used a variety of terms to describe the way he was treated in the Respondent’s performance management process. He contended that when he received a written warning from Mr Gilbert on 8 June 2017 following a performance review meeting on 6 June 2017, it significantly contributed to a condition of depression from which he now suffers.
There were two issues that were addressed in both the performance review meeting on 6 June 2017 and in the written warning.
The first issue was the obligation to notify the Respondent by a telephone call rather than text if the Applicant was to be absent from work. There is a provision to this effect in the Enterprise Bargaining Agreement (EBA) approved by the Fair Work Commission. In that clause of the EBA, there is a specific exclusion of giving such notice by text message.[38]
[38] The relevant clause of the Enterprise Agreement (35.6 (a)) Approved by the Fair Work commission on 26 May 2014, is in evidence before the Tribunal and is an attachment to the statement of Mr Gilbert made on 3 September 2020. There is no need to reproduce it for the purposes of these reasons.
In addition to such a requirement being contained in the Campion enterprise Agreement, there was ample evidence before the Tribunal that the Applicant had been notified at toolbox meetings held on 26 February 2016 and 24 February 2017. The Applicant attended each of those meetings and signed an attendance form. A record of what business was discussed at each toolbox meetings contained in a “Toolbox Meeting Report Form”. In each meeting, it was emphasised that if the driver was to be absent, they were required to speak to the supervisor specifically it said there were to be no text messages.
The Applicant in the witness box sought to assert that the toolbox attendance sheet containing his signature was a separate document to the Toolbox Meeting Report Form even though there was evidence from Mr Gilbert in particular that they were attached. The Tribunal cannot accept the Applicant’s evidence and finds it his signature which he admitted was his on the toolbox attendance sheet bearing the respective dates 26 February 2016 and 24 February 2017 was signed by him confirming his attendance at each meeting. It was yet another example of the Applicant needlessly challenging the authenticity of the document that had been contemporaneously made and then signed, adopted by him. It does not reflect well upon him.
Mr Gilbert explained in his evidence of the reason there is a strict policy of no text messages, the Respondent is in a service industry in which time and reliability are vital. If a text messages goes unnoticed, it has the potential and frequently does disrupt the Respondent’s capacity to provide an efficient service to its customers. It also makes it more difficult for the Respondent to adjust its rosters in a timely manner to ensure that it meets its customer service obligations.
When an employee does send a text message when they are absent, Mr Gilbert stated in his evidence which was not contested that the normal company policy is to commence a performance process to address the issue.
On 1 and 2 June 2017, the Applicant was absent from work. He sent a text message saying he was to be absent. Mr Gilbert gave him a verbal warning that he must not text but telephone if he were to be absent.
The second issue that resulted in the performance review and subsequent written warning was because the Applicant had not performed his duties as rostered. The specific incident concerned occurred on 5 June 2017. The Applicant was rostered to work as an instructor on what was known as the “1363 run”. His function involves sitting on a track assisting a new driver to understand the run concerned. Without authorisation, the Applicant changed his roster to do the 1164 run. The Respondent contends that the driver is unable to change their runs as they see fit. They request a change or alternatively telephone call one of the operations team members.
These two issues were discussed at the performance management meeting on 6 June 2017. The notes of the meeting described as a “Record of Interview”, were prepared by Bodley and in evidence before the Tribunal. Its contents were put to the Applicant in cross examination. He largely accepted them as being accurate. The Tribunal considers having had the opportunity to observe Bodley in the witness box that they are an accurate account of what occurred at the meeting recorded by him.
Whilst the document speaks for itself, several matters contained in it should be referred to in these reasons. The Applicant was specifically asked if he was absent from work on 1 and 2 June 2017, and why he was absent. His response was "I am annoyed with the company using me. Ibsister asked me to assist or train someone on a run I know. Why should I help train when no one is looking after me!." He further stated that he was still "pissed off" missing out on the Tyabb position. He stated he was shafted by Shire supervisors and nothing had happened to them. He further stated, "I was not sick with a sore neck as originally reported to staff that I have to help others when no one is helping me." He admitted attending the toolbox meeting on 24 February 2017 with a requirement to phone and not text was discussed.
He also was asked why he changed the one that he was rostered on for nearly 1363 to 1364. His response was "You wanted me to assist someone and I was not prepared to do this with the way I have been treated. You poke the bear and I will poke back. How does it feel to be annoyed like I am feeling?".
Following the performance management meeting, Mr Gilbert handed a written warning to the Applicant dated 8 June 2017. The Applicant signed the written warning acknowledging its receipt on 13 June 2017. The written warning stated that the Applicant had failed to meet the expectations of his role as a driver by failing to notify the Respondent in an appropriate manner of his absence from work 1 and 2 June 2017 and failing to follow a direction by not performing his duties as rostered. He was advised that his actions were unacceptable and that repeat breaches of the expected standards would not be tolerated. There was then a paragraph containing a warning regarding his continued employment with the company in the event that any further performance issues were to arise and that it could lead to the termination of his employment. The Applicant was urged to consider his actions and approach to his role.
The Applicant stated that, amongst other things, he felt victimised, alienated, dehumanised, unsupported and made to feel like a villain. As a result, he says he started to suffer depression.
THE ISSUE OF WHAT WORK DUTIES THE APPLICANT WAS FIT TO UNDERTAKE.
The relevant facts and circumstances concerning this alleged stressor have already been canvassed earlier in these reasons in the section concerning the alleged re-occurrence of the hernia in July 2017. That account is referred to and repeated. Nothing further need be said on this topic.
BEING ADVISED BY DR BURKE THAT HE WAS AT RISK OF LOSING HIS JOB WITH THE RESPONDENT.
It should be recalled that Dr Burke did not give evidence at the hearing of this application. The evidence on this topic was fairly limited. In his witness statement, the Applicant stated[39] that Dr Burke advised him at the time that the Respondent would probably make him redundant as he could not see the Applicant doing the work that the Respondent wanted him to perform.
[39] At paragraph 21.
In cross-examination, he largely repeated this evidence. He readily conceded in response to a question during cross-examination that when he was told he might lose his job he was not working at the time. He was not at work and he was at a different location. The Applicant readily conceded that he was not at work he was in the city attending the examination for the purposes of establishing a rehabilitation program.
It is difficult for the Tribunal to reach a conclusion on this topic in the absence of evidence from Dr Burke. His report does not make such a comment and it does strike an outside observer such as the Tribunal is something that a Consultant Occupational Physician of
Dr Burke’s experience and expertise would be unlikely to do. However, the Respondent did not really contest the Applicant’s evidence on this topic.CONSIDERATION OF THE MENTAL HEALTH CLAIMS.
The Tribunal will now look at each of the stressors identified by Associate Professor Mendelson (they were also largely identified by Dr Weissman and Dr Grech in their reports also) and whether they arose out of or in the course of the Applicant’s employment with the Respondent.
If the Applicant was advised by Dr Burke that he might lose his employment with the Respondent it cannot be said to have arisen out of, or in the course of his employment. The comments were not made whilst the Applicant was undertaking any duties as an employee. He was not at work. The comments were made by Dr Burke and his rooms in the city. The comments cannot be said to be by or on behalf of the Respondent employer. The Applicant was referred to Dr Burke for an examination under section 36 of the SRC Act. This is a legal process prescribed by the Act. It took place in Dr Burke’s rooms in the city as part of that process. It is a requirement under the legislation for the purposes of formulation of a rehabilitation program. This matter is in the realm of an ailment that requires a contribution to a significant degree from the Applicant’s employment. It simply did not occur there. It was not the Respondent’s doing.
The next issue that emerges relevant to Dr Burke’s report was an assessment of what duties the Applicant was fit to undertake. That assessment was that the Applicant was fit to return to pre-injury duties. There was a view held by the Applicant’s treating medical practitioners that he should not lift anything more than 5 kg. Ms Boron gave evidence about the referral to Dr Burke who it will be recalled is a highly qualified Consultant Occupational Physician. She also gave evidence that she preferred the opinion of Dr Burke because he is a specialist, he is independent and an expert in that particular field.
It was not suggested by the Applicant that it was unreasonable for the Respondent including its proper officers such as Ms Boron, who it should be noted is an experienced Rehabilitation and Injury Management Advisor, to prefer the opinions expressed by Dr Burke in his report (nor was it put to her). She was a witness who struck the Tribunal as fair minded and concerned for the welfare of the Respondent’s employees, who took her role very seriously. It was also put to the Applicant in cross examination that it was reasonable for the Respondent including Ms Boron, to rely upon and prefer the opinions expressed by
Dr Burke. The Applicant agreed with that proposition. The Tribunal considers that the steps taken in reliance upon Dr Burke’s report which included the establishment of a specific Rehabilitation Program for the Applicant were directed to his employment itself, as opposed to action forming part of the everyday duties or tasks that he performed in his employment or job. It fell within the definition of reasonable administrative action taken in a reasonable manner contained in section 5A (1) of the SRC Act.[40][40] See Commonwealth Bank of Australia v Reeve(2012) 199 FCR 463 at [60].
There is just no evidence to suggest that the Respondent employer took an unreasonable approach to the duties that the Applicant could perform. The Applicant agreed that in cross examination it had been reasonable and discussing with him the duties he was fit to undertake based upon Dr Burke’s report. This also should be looked at with a degree of realism given the Tribunal’s findings about the Applicant lifting a 20 kg bag of cement. It showed that the Applicant believed he was fit enough to lift such a weight. Importantly, for this consideration, the response of Mr Gilbert when he discussed the matter with the Applicant following that event demonstrated a genuine concern to ensure that the Applicant followed the graduated return to work plan contained in the Rehabilitation Program, and what appeared to the Tribunal to be also a genuine concern for the Applicant’s welfare showed that it acted reasonably at all times.
It should also be noted that with respect to the Rehabilitation Program, the Applicant signed the program on 17 July 2017 and in doing so acknowledged that he had been involved in the development of such program. This is consistent with the evidence he gave in the witness box that it was not unreasonable for the Respondent to follow the recommendations of Dr Burke.
There is nothing to suggest that preferring the opinion of Dr Burke was unreasonable. This also must be looked at from a perspective as was explained by Deputy President McCabe in Nguyen v Comcare[41] that the standard of reasonableness is not a standard of perfection.
[41] [2018] AATA 1623.
With respect to the Applicant’s failure to secure the Tyabb position, the Tribunal cannot see that the Respondent acted other than reasonably. There were several candidates. The Applicant was interviewed. He was unsuccessful. As noted earlier, the letter written by Mr Gilbert to the manager of the Tyabb facility was fair and sympathetic to the Applicant’s case. It also should not be lost sight of that the Applicant failed to disclose his previous medical history when completing the online application. It is surprising given what he had been through. The lack of candour on his part does not reflect well upon him. Ultimately, there was nothing that the Applicant could point to which indicated that the Respondent in deciding who to award the Tyabb position to should do so in a particular way. The Applicant also accepted in his evidence that there was really nothing in the manner in which the matter unfolded that was unreasonable. He ultimately agreed in cross examination that it was reasonable for his employer to decline his application for the Tyabb position. The Tribunal agrees. What the Respondent did with respect to the Tyabb position was reasonably done in connection with the failure to obtain a transfer within the meaning of section 5A(2)(f) of the SRC Act.
The next stressor for consideration involves the meeting on 6 June and the warning letter of 8 June 2017 that was subsequently handed to the Applicant. The Respondent submits, and the Tribunal agrees, that it was plainly reasonable disciplinary action within the meaning of section 5A(2)(d) of the SRC Act. The meeting that took place could also be classified as a good example of reasonable counselling action taken in respect of the employee’s employment within the meaning of subsection 5A(2)(b). The process was not part of his duties, it was quintessentially action in respect of his employment as contemplated by subsection (2). However, described the meeting and the warning letter were in any event conduct in respect of his employment rather than conduct occurring in the course of his employment.
As contended for by the Respondent, there is a range of evidence establishing an obligation on the Applicant not to give notice of absence by text. That evidence will be briefly repeated:
(e)the toolbox talk he attended on 26 February 2016;
(f)the second toolbox talk he attended on 24 February 2017;
(g)the provisions of clause 35.6 of the Enterprise Agreement specifically requiring
3 hours’ notice by telephone and excluding notice by text message; and(h)the conversation between the Applicant and Darren Gilbert on 26 May 2017 recorded by him in the file note.
It is incontrovertible that the Applicant did not attend work on the 1 and 2 of June 2017. He did not make a phone call. He purported to notify his employer of his absence by text.
There is also the evidence accepted by the Tribunal that the Applicant unilaterally changed his rostered run on 5 June 2017. He was not permitted to do this.
It was perfectly reasonable for the Respondent to convene the meeting that it did on 6 June 2017. During that meeting, the Applicant made admissions about his conduct. The evidence was that there was a lack of remorse or apology from the Applicant for his behaviour as admitted by him. Perhaps one might also describe it as the Applicant possessing a lack of appreciation or insight into his conduct. He did in the meeting as was noted earlier, use such language as “poke the bear”. It was this attitude that triggered the decision by the employer to give the written warning. It is perfectly understandable and reasonable in the circumstances. The Tribunal accepts the Respondent’s evidence that it is in a service industry and must know with certainty when an employee will not be present. This is so as to minimize the disruption to its commercial obligations. It leaves a gap in the Respondent’s roster and places in jeopardy its capacity to run its business and provide an efficient service delivery for businesses that are reliant upon the Respondent to do so, if it does not know with certainty when an employee will be absent from the workplace. It should not be lost sight of that it is in the business of collecting rubbish.
It should also be recalled or perhaps noted that the procedure for the meeting and the written warnings followed the prescription contained in the Enterprise Agreement applicable to the Applicant’s employment.
In cross examination, it was also put to the Applicant that the Respondent’s approach and conduct of both the meeting and in serving a written warning was reasonable. The Applicant agreed. It was also put to the Applicant that it was reasonable of the employer to counsel him on the correct procedure for notification of absences. He agreed with that proposition. He also agreed it was reasonable to conduct the performance management meeting with him. As for the conduct of the meeting, it was not put to Bodley in cross examination that the meeting was conducted in anything other than a reasonable manner. It was not suggested to Mr Gilbert in cross examination that the warning letter of 8 June 2017 was unreasonable.
Brief mention will be made of the stressors identified as financial difficulties and the involvement in ongoing litigation that have been referred to in some of the experts’ reports. They were not really canvassed to any significant extent in the course of hearing of the application. The Respondent quite rightly relies upon the decision in Australian Postal Corporation v Tzikas[42] in addressing these matters. The Tribunal agrees. As the Full Court noted, these were stressors that did not happen at work. The problem is one of causation. It cannot be said that work caused them. They did not arise out of or in the course of Applicant’s employment with the Respondent.
[42] (1985) 5 AAD 187.
By reason of the foregoing matters, the Tribunal concludes that each of the stressors that have contributed to the Applicant’s condition of an Adjustment disorder: Anxiety and depressive reaction as diagnosed by Associate Professor Mendelson, were not employment caused or work-related within the meaning of section 5A(1) of the SRC Act.
Therefore, the Tribunal affirms the First, Second, Third, Fourth, Fifth and the Sixth reviewable decisions.
CONCLUSION.
The Tribunal affirms each of the reviewable decisions.
I certify that the preceding 217 (two hundred and seventeen) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member
.......................[sgd].................................................
Associate
Dated: 3 March 2021
Dates of hearing: 14, 15, 16 and 17 December 2020 Solicitors for the Applicant:
Self-represented
Counsel for the Respondent: Mr Peter Woulfe
Solicitor for the Respondent: HBA Legal
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