Gurgees and TNT Australia Pty Ltd (Compensation)

Gurgees and TNT Australia Pty Ltd (Compensation) [2019] AATA 4469 (30 October 2019)
Division:GENERAL DIVISION
File Numbers: 2018/0031; 2018/2888; 2018/4800
Re:Dony Gurgees
APPLICANT

AndTNT Australia Pty Ltd
RESPONDENT

DECISION
Tribunal:Dr L Bygrave, Member
Date:30 October 2019
Place:Sydney

The Tribunal affirms the decisions under review.
.........................[SGD]...............................................
Dr L Bygrave, Member
CATCHWORDS
WORKERS’ COMPENSATION – accepted left shoulder injury – accepted right shoulder injury – whether applicant continued to suffer an incapacity for work and a need for treatment as a result of the accepted left shoulder injury – whether applicant continued to suffer an incapacity for work and a need for treatment as a result of the accepted right shoulder injury – whether applicant sustained a secondary major depressive condition – whether applicant’s employment with TNT Australia contributed to a significant degree to the onset of that condition – whether applicant suffered an incapacity for work as a result of his major depressive condition – where no incapacity for work – where no identifiable psychiatric disorder – decisions affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988(Cth), ss 4, 5A, 5B, 6, 14, 16, 19
REASONS FOR DECISION
Dr L Bygrave, Member
30 October 2019
INTRODUCTION

The applicant, Mr Dony Gurgees, commenced employment as a casual run driver with the respondent, TNT Australia Pty Ltd (TNT Australia), through an agency in 2010.
On 30 May 2011, Mr Gurgees became a permanent employee of TNT Australia as a pickup and delivery (PUD) driver.
Pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act), TNT Australia accepted liability and paid compensation to Mr Gurgees for:
·‘left rotator cuff tendonitis’ with date of injury deemed to be 14 January 2013 (accepted left shoulder injury); and
·‘right supraspinatus tear’ with date of injury deemed to be 9 April 2014 (accepted right shoulder injury).
Mr Gurgees underwent surgery on his right shoulder in mid-2014, and had operations on his left shoulder in February 2015 and September 2016. Mr Gurgees participated in return to work plans with TNT Australia and, from 19 May 2017, his return to work plan comprised work for five days a week, nine hours per day with duties of ‘[d]riving van with weight restrictions’.[1]
[1] Exhibit T4800-PT14, page 45.
Mr Gurgees did not attend work at TNT Australia after 1 June 2017 and on 17 July 2018, TNT Australia terminated his employment on the basis of ‘serious misconduct’.[2]
[2] Exhibit ST-PST30, page 282.
Mr Gurgees has made the following applications for review to the Administrative Appeals Tribunal (the Tribunal):
Application No. 2018/0031
Review of reviewable decision dated 14 December 2017, which affirmed a determination dated 19 October 2017 that TNT Australia was not liable pursuant to section 14 of the SRC Act to pay Mr Gurgees compensation in respect of ‘major depressive symptoms’.
Application No. 2018/2888
Review of reviewable decision dated 15 May 2018, which affirmed a determination dated 28 March 2018 that TNT Australia was not liable to pay compensation to Mr Gurgees under sections 24 and 27 of the SRC Act with respect to the accepted left shoulder injury and the accepted right shoulder injury.
Application No. 2018/4800
Review of reviewable decision dated 27 July 2018, which affirmed a determination dated 21 June 2018 that TNT Australia was not liable – as at 21 June 2018 – to pay Mr Gurgees compensation under sections 16 and 19 of the SRC Act in respect to the accepted left shoulder injury and accepted right shoulder injury.
At the Tribunal hearing on 6 August 2019, counsel for the applicant accepted there was insufficient medical evidence to support application no. 2018/2888 and therefore the only applications for review by the Tribunal are application nos. 2018/0031 and 2018/4800.
These applications were heard jointly by the Tribunal in Sydney on 6–8 and 30 August 2019.
RELEVANT LEGISLATION
Subsection 14(1) of the SRC Act provides:
(1) Subject to this Part, Comcare [or in these applications, TNT Australia] is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
‘Injury’ is defined in subsection 5A(1) of the SRC Act to mean:
(a)     a disease suffered by an employee; or
(b)     an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)    an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
‘Disease’ is defined in section 5B as:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
Subsection 6(3) of the SRC Act provides that ‘significant degree’ means ‘a degree that is substantially more than material’.
‘Ailment’ is defined in subsection 4(1) as ‘any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’.
Subsection 4(9) of the SRC Act sets out that an ‘incapacity for work’ refers to an incapacity suffered by an employee as a result of an injury, being either an incapacity to engage in any work or an incapacity to engage in work at the same level at which they were engaged immediately before the injury happened.
Sections 16 and 19 of the SRC Act provide for compensation in respect of medical expenses and for injuries resulting in incapacity.
ISSUES
The issues for determination by the Tribunal in relation to application nos. 2018/0031 and 2018/4800 are whether Mr Gurgees:
·continued to suffer an incapacity for work and a need for treatment as a result of the accepted left shoulder injury and the accepted right shoulder injury as at 21 June 2018;
·sustained a secondary major depressive condition and if so, whether his employment with TNT Australia contributed to a significant degree to the onset of that condition; and
·suffered an incapacity for work as a result of his major depressive condition.
EVIDENCE
The evidence before the Tribunal comprises:
·written statements and oral evidence of Mr Gurgees and his wife, Ms Hiyam Ashak;
·evidence from medical practitioners who have examined or treated Mr Gurgees;
·surveillance video and surveillance reports dated 12 January 2018, 30 January 2018 and 26 April 2018; and
·evidence from TNT Australia regarding Mr Gurgees’ return to work plans and his employment.
Evidence of Mr Gurgees
Mr Gurgees filed a written statement with the Tribunal dated 14 November 2018, and gave oral evidence on 6 and 7 August 2019. This evidence related to Mr Gurgees’ duties as a PUD driver at TNT Australia, his accepted left and right shoulder injuries and medical treatment, his experiences returning to work at TNT Australia following his left shoulder surgery in September 2016, and his activities post-June 2017.
Prior to his accepted left shoulder injury, Mr Gurgees stated he was employed as a PUD driver with TNT Australia for ‘52 hours per week’ and described his duties as follows:
I would go into the depot, pick up the same truck everyday (a 4 tonne truck). I would take the truck to the dock where I would load the boxes onto my truck. I would be loading 80 to 100 boxes a day and I would start my deliveries. It would be 50 to 70 stops doing both deliveries and pickups along the way.[3]
[3] Exhibit A1.
In his oral evidence, Mr Gurgees’ description of his duties varied: he stated initially that his duties involved ‘constant lifting’ and he could leave the TNT Australia premises ‘with 100 boxes and come back with 400-500 boxes’[4]; he later stated he may have ‘300-400 parcels’ in his truck, pick up ‘100-130 boxes…over 15 kilos, easy over 15-17 [kilograms]….says on the box…10 kilos, but if you try to lift it, it’s probably 30 [kilograms]’, and the ‘vast majority’ of the ‘80-100 parcels’ he handled daily were ‘under 20 kilograms’.[5]
[4] Transcript, 6 August 2019, page 33.
[5] Transcript, 6 August 2019, page 39.
Mr Gurgees, in his oral evidence and written statement, detailed the circumstances of his accepted left shoulder and right shoulder injuries, and his medical treatment and operations from January 2013 to September 2016. He noted that his current treatment for his shoulders is Voltaren tablets ‘every day’.[6]
[6] Transcript, 6 August 2019, page 34.
Relevant to the matters before the Tribunal, Mr Gurgees described his return to work at TNT Australia after his surgery in September 2016 as follows:
Following the surgery I returned to work on light duties. I gradually increased my hours to 4 hours per day, 5 days per week. I continue to have physiotherapy treatment. My restrictions were that I could only deliver small satchels…
I continued working on light duties until the end of June 2017. At about that time I went off work as there were not any light duties available to me to do. There also was no van available all the time that I was rostered on. If there was no van available it meant that there was no suitable light duties for me available in accordance with my restrictions. I would then be asked to sit in an office all day essentially doing nothing. Or I would be asked to clean windows. At that point knowing that I had been purposely treated that way as I was aware that there were suitable duties available but I was denied them, I decided to leave work. This made me very angry that I was treated this way. I then decided to leave work. It was at about that time that I also noticed I had become more and more angry and I noticed changes in my mood. I noticed that I was becoming anxious and depressed whenever I was required to deal with TNT especially my case manager. Especially knowing that there were suitable duties available for me but which did not require me to work above shoulder height and within my thirteen kilogram lifting restrictions.
I stopped working in June 2017 as I had become depressed about not having any work to do. Having used to be sitting in a room most days doing nothing instead of been given suitable duties. I noticed my mood began to deteriorate, I was anxious and depressed, irritable and angry. If it wasn’t for my depressed mood I would be working. [reproduced as in original][7]
[7] Exhibit A1.
At the Tribunal hearing, Mr Gurgees confirmed he left TNT Australia in June 2017 as he was in the fleet office ‘doing nothing’ for eight hours a day, ‘two to three times a week’. He said he was ‘happy’ when there was a van for him to drive but the available van was ‘always broken down’. He conceded in his oral evidence that he did not clean windows at TNT Australia and he did not like administrative work. He said he was not interested in working more than eight hours a day because he did not want to do ‘nothing’.[8]
[8] Transcript, 6 August 2019, page 27.
Mr Gurgees told the Tribunal that he has not been in paid employment since he left TNT Australia in June 2017. He accepted that there has been ‘nothing’ preventing him from getting a job for the last ‘six or seven months’.[9] He confirmed that, after leaving TNT Australia in June 2017, he saw a psychologist (Hansen Li) a few times but did not find it helpful. He said he thought he took medication to assist him to sleep for a few months.
[9] Transcript, 6 August 2019, pages 35-36.
Mr Gurgees was shown video surveillance at the hearing from the following dates: 9, 10 and 24 January 2018, and 4, 5 and 20 April 2018. Mr Gurgees did not dispute that the video footage showed him doing the following activities:
·attending the rear of his van in the driveway of his home with a commercial vacuum cleaner, using both his arms to place and move a large carpet/mat on the floor of his van, and using a cordless drill (9 January 2018);
·replacing the blade and battery of a reciprocating saw in the driveway of a property that is not his residence (9 January 2018);
·delivering a large tool bag and drop saw in the driveway of a property that is not his residence, and remaining at the property for approximately one hour and 45 minutes (10 January 2018);
·attending properties that are not his residence with a tape measure and diary, and items including a silicone gun (24 January 2018);
·pushing his father in a wheelchair to the barbers (24 January 2018);
·attending properties under construction for more than one hour and 40 minutes (5 April 2018); and
·carrying a large glass pane from his van into a warehouse, a further large pane of glass from a warehouse to his van with another person, and carrying a large pane of glass into a residence that is not his home – both on his own and with another person (20 April 2018).
Mr Gurgees stated that these activities were ‘not work’ because he was not paid, but rather ‘tasks’ he undertook to assist his wife with her business.[10] He confirmed the video footage showed that he had no difficulties with driving his van, reaching up to close the rear door of his van, pulling himself into the van with his right hand and putting pressure onto his left arm, lifting power tools with one arm and lifting a large pane of glass on his own and with another person. He stated that he remained at these building sites to talk to the builders, who were relatives or friends, but did not undertake any work inside these premises. He accepted that on 24 January 2018 he undertook tasks that involved taking measurements and using a silicone glue gun.
[10] Transcript, 7 August 2019, page 153.
Mr Gurgees provided details about the van he owns and drives. He described the van as an ‘emergency’ van that contains tools, building items and a strap board or false wall and is used to deliver tools or building materials to houses when required.[11] Despite his van containing an extensive array of tools, Mr Gurgees denied knowing the name of any tools, how to use any tools or what the tools do. He confirmed that no one else drives his van.
[11] Transcript, 6 August 2019, page 64.
Evidence of Ms Ashak
Ms Ashak is the wife of Mr Gurgees: she provided two written statements and gave oral evidence to the Tribunal on 8 August 2019.
In her statement written on 7 August 2018, Ms Ashak described the physical and mental effect of Mr Gurgees’ accepted left and right shoulder injuries. She set out that Mr Gurgees is unable to complete tasks including carrying heavy shopping bags, putting on a jacket or jumper and requires her assistance to shower and dress. She stated that Mr Gurgees is ‘constantly withdrawn’ and they ‘no longer visit family and friends’.[12]
[12] Exhibit A2, paragraph 9.
Ms Ashak’s written statement dated 2 August 2019 explained her business activities and response to the surveillance video and reports. Ms Ashak stated that she is employed on a full-time basis at her small business that installs kitchens, wardrobes and shower screens. Ms Ashak’s oral evidence was not clear; however, she indicated her business operates as a dual business with her brother-in-law’s business. She said that he undertakes the installation of the kitchens, wardrobes and shower screens, and she does the administrative part of the business.
At the Tribunal hearing, Ms Ashak stated that Mr Gurgees occasionally undertakes unpaid tasks to assist her; these tasks include taking measurements or using his van in ‘emergencies’ to deliver equipment or tools to a job site.[13] Ms Ashak also accepted Mr Gurgees’ physical and mental capacity had improved from 7 August 2018, the date of her first written statement and one year prior to the Tribunal hearing.
[13] Transcript, 8 August 2019, page 262.
Medical evidence – left shoulder and right shoulder injuries
There is substantial material before the Tribunal dating from January 2013 in relation to Mr Gurgees’ accepted left shoulder and right shoulder injuries. I note that TNT Australia accepted liability for these injuries under section 14 of the SRC Act and the current applications before the Tribunal do not require me, and nor is it appropriate for me, to re-examine these injuries.
I therefore set out the medical evidence that seeks to examine whether, as at 21 June 2018, Mr Gurgees had an incapacity to work at the same level at which he was engaged immediately prior to his left shoulder and right shoulder injuries.
Evidence of Dr Peter Giblin (orthopaedic surgeon)
Dr Giblin provided reports dated 10 September 2018 and 15 January 2019, and gave oral evidence on 6 August 2019.
In his report of 10 September 2018, Dr Giblin made a ‘provisional diagnosis’ that Mr Gurgees suffered a ‘primary soft tissue injury to his shoulders, due to the nature and conditions of his work environment’ and a ‘secondary compensatory associated soft tissue injury to his cervical spine’.[14] Dr Giblin noted Mr Gurgees’ condition was ‘stable and now permanent’ and he was fit for work in a ‘sedentary’ environment.[15]
[14] Exhibit A5, page 4.
[15] Exhibit A5, page 4.
Dr Giblin watched surveillance video from 4–5 and 20 April 2018, and provided a supplementary report dated 15 January 2019. He reported the video footage did not alter his medical opinion set out on 10 September 2018 and it remained his view that Mr Gurgees’ shoulders ‘will always be susceptible to recurrent soft tissue injury if they are subject…to unrestricted heavy physical activities at or above shoulder height’.[16]
[16] Exhibit A6, page 1.
At the Tribunal hearing, Dr Giblin confirmed that past medical reports indicated that Mr Gurgees had underlying degenerate or susceptible shoulders bilaterally but opined that his work was a ‘protagonist’ for these injuries.[17] Dr Giblin stated that Mr Gurgees’ symptoms would be expected to fluctuate from time to time and noted that lifting ‘20 odd kilograms will hurt his shoulders’.[18]
[17] Transcript, 6 August 2019, page 89.
[18] Transcript, 6 August 2019, page 96.
Evidence of Dr John Bosanquet (orthopaedic surgeon)
Dr Bosanquet provided reports dated 15 March 2018, 30 May 2018 and 28 June 2019, and gave oral evidence to the Tribunal on 7 August 2019.
In his report dated 2 March 2018, Dr Bosanquet diagnosed Mr Gurgees with ‘bilateral mild subacromial bursitis’, noting he has ‘full range of movement however in each shoulder with pain at extremes of movement, particularly abduction and forward flexion’ and it is ‘reasonable to implicate his work in the development of his symptoms’.[19] Dr Bosanquet further opined that:
…the bursitis and tendinopathy in each shoulder does not cause an incapacity for work. There is no reason why he could not be working, avoiding overhead use of each arm and avoiding lifting more than 5kg with these restrictions he should be able to work eight hours a day initially with the build up to 12 hours to his previous level. It is my opinion he could immediately start back at work and build up to full time over two to three months.[20]
[19] Exhibit T2888-PT138, pages 318-319.
[20] Exhibit T2888-PT138, page 319.
In a supplementary report dated 30 May 2018, Dr Bosanquet provided comment on Mr Gurgees’ capacity after viewing the video surveillance. He opined that the surveillance footage showed Mr Gurgees is ‘able to work without restrictions [and] obviously has a full range of movement in each shoulder and is able to lift and carry without aggravation’, and that ‘any work-related contribution to the right and left shoulder conditions has ceased’.[21]
[21] Exhibit T4800-PT24, page 118.

On 28 June 2019, Dr Bosanquet noted that Mr Gurgees would have ‘developed the condition [in his shoulders] as a natural consequence of a pre-existing condition irrespective of his employment with TNT’ and commented that he:
…is at a loss to understand why, with a full range of movement in each shoulder, [Mr Gurgees] has not been able to return to work. Working to return to work, it would be judicious to put a lifting limit initially of 5 to 10kg with each arm and avoid overhead use of income, until he had established himself back into the workforce. To this end, I recommend that he return with these restrictions and then be reviewed at three months.[22]
[22] Exhibit R4, pages 4-5.
At the Tribunal hearing, Dr Bosanquet confirmed his opinion that the medical evidence indicated Mr Gurgees’ shoulder conditions were a ‘constitutional problem’.[23] He further noted that Mr Gurgees has full range of movement in his shoulders and consequently, he has ‘no physical incapacity for work’.[24] Dr Bosanquet said that Mr Gurgees ‘complains of pain’ but he was unable to explain this pain given there was no restricted range of movement.[25]
[23] Transcript, 7 August 2019, page 160.
[24] Transcript, 7 August 2019, page 166.
[25] Transcript, 7 August 2019, page 169.
Dr Bosanquet explained that Mr Gurgees ‘should be able to go back to his previous duties’ as a PUD driver, but noted that because of his ‘problem’ with his shoulders ‘it would be prudent to restrict or avoid overhead use in both shoulders’ and that lifting ‘a 20 kilogram weight above shoulder height…would be outside OH&S [occupational health and safety] specifications’.[26] He acknowledged that Mr Gurgees’ duties prior to injury involved lifting about 80 long boxes a day but there was no evidence ‘this involved overhead use of each arm’.[27]
[26] Transcript, 7 August 2019, pages 168-169.
[27] Transcript, 7 August 2019, page 170.
Medical evidence – major depressive symptoms
Mr Gurgees’ medical records show he attended an appointment with Dr Dong Hua (general practitioner) on 7 June 2017, who reported that Mr Gurgees had been on annual leave since 1 June 2017 and was upset but declined psychotherapy.[28] Medical records from 14 June 2017, 28 June 2017 and 15 July 2017 show Mr Gurgees attended sessions with Hansen Li (psychologist) but do not provide a diagnosis. On 26 July 2017, Dr Hua noted that, since Mr Gurgees’ last appointment (on 13 July 2017), he had ‘been at home and visiting relatives’ and stated ‘Anger. Gets frustrated easily, is very touchy’.[29] On 12 October 2017, Dr Hua recorded that Mr Gurgees has ‘depression’ and outlined the ‘plan’ was to ‘refer to psychiatrist’.[30]
[28] Exhibit R10, page 77.
[29] Exhibit T-T0031, page 42.
[30] Exhibit R10, page 71.
The following medical evidence is relevant to my consideration of the issue of whether Mr Gurgees has suffered major depressive symptoms.
Evidence of Dr Wasim Shaikh (psychiatrist)
Dr Wasim Shaikh examined Mr Gurgees on 16 August 2017 and provided a written report dated 21 August 2017. He gave oral evidence to the Tribunal on 7 August 2019.
Based on his examination, Dr Shaikh opined that ‘anger remained an issue’ for Mr Gurgees but there was no evidence to suggest he had a ‘formal psychiatric disorder’.[31] Dr Shaikh stated that Mr Gurgees socialises well, continues to maintain an interest in sporting activities (albeit with physical restrictions), and generally gets along well with his family and friends. Dr Shaikh noted that Mr Gurgees’ self-care and hygiene is not affected, and his lack of involvement in looking after the house or his children ‘seems to be a pre-existing (perhaps cultural) phenomenon’.[32] Dr Shaikh therefore concluded that:
Mr Gurgees does not suffer an identifiable psychiatric disorder, work-related or otherwise. No further treatment is indicated, and his claim of psychological incapacity is not medically justified. His plan of not wanting to return to TNT is a matter of choice [rather] than medical necessity.[33]
[31] Exhibit T0031-PT15, page 38.
[32] Exhibit T0031-PT15, page 38.
[33] Exhibit T0031-PT15, page 38.
At the hearing, Dr Shaikh confirmed that his formal assessment of Mr Gurgees showed no evidence of psychiatric disorder. In response to Dr Bertucen’s assessment that Mr Gurgees had depression, Dr Shaikh responded that:
[H]e obviously presented by himself, he was able to do that. He was neatly presented, his concentration was adequate, his speech did not have any problems, he was quite a reasonable historian. There was no formal thought disorder, no self-harm talk, no other mood disturbances. So, that would – if that sentence of feeling depressed was removed, his mental state examination would have been unremarkable.[34]
[34] Transcript, 7 August 2019, page 199.
Evidence of Dr Jeff Bertucen (consultant psychiatrist)
Dr Bertucen provided a written report dated 8 May 2018 and gave evidence to the Tribunal on 7 August 2019.
In his report dated 8 May 2018, Dr Bertucen set out a history of Mr Gurgees’ accepted left and right shoulder injuries and employment at TNT Australia as told to him by Mr Gurgees. Based on this history, Dr Bertucen set out psychological sequelae for Mr Gurgees and described his psychological symptoms as:
At present mood remains dysphoric, frustrated and bewildered at the constant medical procedures and uncertainty regarding current physical restrictions. Mood could be described as frankly depressed and easily irritable and he has an uncertain view of the future…[35]
[35] Exhibit A4, page 3.
Dr Bertucen diagnosed Mr Gurgees with ‘chronic adjustment disorder with features of depressed mood and anxiety’, noting this is:
…a secondary psychological condition which appears to have arisen from the cumulative effects of pain from injuries (sustained in the workplace), the effects of surgery and convalescence, and the progressive realisation that he would be incapable of returning to his remunerative pre-injury work.[36]
[36] Exhibit A4, page 4.
Dr Bertucen noted that any prognosis was difficult as Mr Gurgees had ‘not yet benefited from any evidence-based psychiatric treatments which may potentially ameliorate his symptoms’,[37] and opined that Mr Gurgees is not ‘incapacitated with regard to all work’ and he ‘would be psychologically capable of full-time employment of a non-manual nature’.[38]
[37] Exhibit A4, page 3.
[38] Exhibit A4, page 5.
At the Tribunal hearing, Dr Bertucen noted that a ‘perception of lack of support, or lack of appropriate support by the company [TNT Australia] did…materially contribute to the decline in [Mr Gurgees’] mood’ although ‘the substantial contributing factor to his depression was the continual injuries and pain…preventing him from returning to his pre-injury type work’.[39] Dr Bertucen acknowledged that his view about TNT Australia’s handling of Mr Gurgees’ return to work was based solely on the information Mr Gurgees told him.
[39] Transcript, 7 August 2019, page 116.
Surveillance video and reports
The Tribunal was shown surveillance video of Mr Gurgees’ activities on 27 December 2017, 2, 9 and 10 January 2018, and 4, 5 and 20 April 2018. Surveillance reports dated 12 January 2018, 30 January 2018 and 26 April 2018 were also filed with the Tribunal.
Activities performed by Mr Gurgees in the surveillance video is summarised at paragraph 25 above.
Evidence from TNT Australia
Extensive documentation from TNT Australia was filed with the Tribunal regarding Mr Gurgees’ rehabilitation program, return to work plans and progress reports. Written statements and oral evidence were also provided by Ms Rachel Imo (PUD manager and scheduler, TNT Australia) and Mr Brett Arentz (injury management adviser, TNT Australia).
Ms Imo and Mr Arentz were involved in Mr Gurgees’ return to work. Their evidence was that suitable duties within Mr Gurgees’ medical restrictions were provided by TNT Australia. A rehabilitation file note completed by Mr Arentz on 14 November 2016 set out that Mr Gurgees had stated that he ‘doesn’t have much to do’ and additional duties for him were advised.[40] In a further file note dated 9 February 2017, Mr Arentz outlined that Mr Gurgees had told him ‘he was sick of all this and wants to go back’ and there ‘is nothing for him to do’; Mr Arentz noted that he told Mr Gurgees ‘there is plenty of van work to do because of outside hire’.[41]
[40] Exhibit R1, Attachment A.
[41] Exhibit R1, Attachment C.
CONSIDERATION
In opening statements on 6 August 2019, counsel for the applicant identified the issues before the Tribunal are ‘ultimately’ a ‘question of the credibility’ of Mr Gurgees.[42] I agree. However, before I discuss the evidence of Mr Gurgees and the issues for determination in the applications, I firstly set out my findings in relation to the medical evidence.
[42] Transcript, 6 August 2019, page 5.
Medical evidence – left shoulder and right shoulder injuries
I find the evidence of Dr Giblin and Dr Bosanquet showed that Mr Gurgees had an underlying degenerative condition in his shoulders and his work as a PUD driver affected the development of his symptoms. I am satisfied that these are the injuries TNT Australia has accepted liability for and paid compensation under section 14 of the SRC Act.
In relation to whether Mr Gurgees continues to have a physical incapacity to work, both Dr Bosanquet and Dr Giblin noted he would have difficulty with unrestricted heavy physical activities at or above shoulder height. Dr Bosanquet also found that Mr Gurgees has full range of movement in his shoulders and consequently, he has no physical incapacity for work.
On balance, I prefer the evidence of Dr Bosanquet because he provides greater detail about Mr Gurgees’ physical capacity, his medical opinions are based on his physical examination of Mr Gurgees and he described Mr Gurgees’ capacity to undertake tasks in a way that was consistent with the surveillance evidence before the Tribunal.
Medical evidence – major depressive symptoms
I make the following observations about the medical evidence regarding Mr Gurgees’ major depressive symptoms.
Dr Shaikh’s assessment of Mr Gurgees and his report in August 2017 is close to the period that Mr Gurgees departed TNT Australia in June 2017. Dr Shaikh concluded that Mr Gurgees did not suffer an identifiable psychiatric disorder.
Dr Bertucen assessed Mr Gurgees in May 2018, a period approximately 11 months after Mr Gurgees last attended work at TNT Australia. While Dr Bertucen diagnosed Mr Gurgees with a chronic adjustment disorder with features of depressed mood and anxiety, this diagnosis was made largely on the basis of Mr Gurgees’ history of his workplace environment at TNT Australia. For the reasons I set out below, this history told to Dr Bertucen by Mr Gurgees’ contained exaggerated and inaccurate information.
Mr Gurgees’ evidence
I make the following observations about Mr Gurgees’ evidence to the Tribunal.
The oral evidence of Mr Gurgees to the Tribunal was inconsistent and exaggerated in regard to his pre-injury duties as a PUD driver and the duties available to him by TNT Australia in his return to work post-September 2016. For example, as set out at paragraph 20, Mr Gurgees provided different and inconsistent descriptions of his duties as a PUD driver prior to his accepted shoulder injuries. In view of the extensive contemporaneous documentary evidence from TNT Australia and the oral evidence of TNT employees involved in Mr Gurgees’ return to work at TNT Australia after surgery in September 2016, I am satisfied that Mr Gurgees provided exaggerated and inaccurate information to the Tribunal about his experiences in relation to the duties he undertook at TNT Australia in the period from September 2016 to June 2017.
I am not persuaded by Mr Gurgees’ contentions that he experienced depression due to his employment at TNT Australia. I can accept that Mr Gurgees’ return to full-time employment as a PUD driver at TNT Australia following his accepted shoulder injuries in January 2013 and April 2014 may have been difficult and, at times, frustrating. However, consistent with the medical evidence, this does not indicate a psychiatric disorder. I note that Mr Gurgees’ evidence – that he engaged only for a brief period with psychotherapy treatment and did not engage with a psychiatrist, despite a referral from his general practitioner – does not support a finding he sustained major depressive symptoms. I also note Mr Gurgees told the Tribunal he has not experienced any psychological symptoms in the last five to six months.
Mr Gurgees’ evidence about his capacity to work was, at best, inconsistent. He conceded that there was ‘nothing’ preventing him from working (for the past six to seven months) but said he was not in paid employment.
In relation to the surveillance video footage taken in January 2018 and April 2018, I am satisfied that this footage does not show Mr Gurgees undertaking paid employment. However, Mr Gurgees’ contentions that on each of these days he was simply undertaking ‘tasks’ to assist his wife in her business also seems implausible. Indeed, the coincidence between Mr Gurgees undertaking tasks on the random days when surveillance occurred is contrary to Mr Gurgees’ claim that he ‘rarely’ undertakes any tasks for his wife’s business. I also cannot accept Mr Gurgees’ contention that he does not know the names of tools or how to use power tools given the surveillance video shows him driving a van that contains power tools, using a cordless drill and changing the blade on a reciprocating saw. It also seems incongruous that Mr Gurgees owns and drives a van that contains power tools that he cannot name or use and is solely used for ‘emergencies’.
In conclusion, I am satisfied the medical evidence and the surveillance evidence simply does not support Mr Gurgees’ assertions that he had a physical incapacity for work as at 21 June 2018 or sustained a major depressive condition after June 2017.
Findings – application no. 2018/0031
On balance and weighing the available evidence, I am satisfied that Mr Gurgees did not sustain a psychiatric disorder or psychological injury. I accept, as Dr Hua reported in July 2017, that Mr Gurgees may have been angry and frustrated in view of his physical injuries. However, as observed by Dr Shaikh, this does not mean Mr Gurgees had a psychological injury. I also find that these emotions are unremarkable in view of Mr Gurgees’ process of recovery and return to work from his accepted shoulder injuries.
I find Mr Gurgees did not sustain any psychological injury from June 2017.
Findings – application no. 2018/4800
Weighing up the varying accounts of Mr Gurgees’ pre-injury duties as a PUD driver, I am satisfied that his duties entailed loading and delivering 80 to 100 boxes a day using a four tonne truck and the vast majority of these boxes were less than 20 kilograms. There is no evidence before the Tribunal that this work was at or above shoulder height. I therefore find that Mr Gurgees’ pre-injury duties did not comprise of unrestricted heavy physical activities at or above shoulder height.
Based on the medical evidence, I am satisfied that Mr Gurgees has a full range of movement in his shoulders and therefore has no physical incapacity for work. While Mr Gurgees would have difficulty undertaking unrestricted heavy physical activities at or above shoulder height, I am satisfied Mr Gurgees’ work immediately before the injury occurred did not include unrestricted heavy physical activities at or above shoulder height.
I find the evidence before the Tribunal shows that Mr Gurgees had no incapacity for work as at 21 June 2018 under sections 16 and 19 of the SRC Act.
CONCLUSION
Application no. 2018/0031
I find that TNT Australia is not liable pursuant to section 14 of the SRC Act to pay Mr Gurgees compensation in respect of ‘major depressive symptoms’.
Application no. 2018/4800
I find that TNT Australia was not liable – as at 21 June 2018 – to pay Mr Gurgees compensation under sections 16 and 19 of the SRC Act in respect to the accepted left shoulder injury and the accepted right shoulder injury.
DECISION
The Tribunal affirms the decisions under review.

I certify that the preceding 78 (seventy -eight) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

................................[SGD].....................................
Associate
Dated: 30 October 2019

Date(s) of hearing: 6-8, 30 August 2019

Counsel for the Applicant: L Grey

Solicitors for the Applicant: B Elmasri, Turner Freeman Lawyers

Counsel for the Respondent: M Gollan

Solicitors for the Respondent: J Prindiville, Sparke Helmore

[2019] AATA 4469

30 October 2019

Key Legal Topics

Areas of Law

Employment Law

Negligence & Tort

Legal Concepts

Causation

Duty of Care

Date(s) of hearing:	6-8, 30 August 2019
Counsel for the Applicant:	L Grey
Solicitors for the Applicant:	B Elmasri, Turner Freeman Lawyers
Counsel for the Respondent:	M Gollan
Solicitors for the Respondent:	J Prindiville, Sparke Helmore