Hickey and Australian Postal Corporation (Compensation)
[2021] AATA 1521
•20 May 2021
Hickey and Australian Postal Corporation (Compensation) [2021] AATA 1521 (20 May 2021)
Division:GENERAL DIVISION
File Number: 2015/3786
Re:Kim Francis Hickey
APPLICANT
AndAustralian Postal Corporation
RESPONDENT
DECISION
Tribunal:L M Gallagher, Member
Date:20 May 2021
Place:Perth
The Reviewable Decision made by a delegate of the Australian Postal Corporation on 30 June 2015, that as at 15 January 2015, the Australian Postal Corporation had no present liability to pay compensation to Mr Hickey under ss 16 and 19 of the SRC Act, is affirmed.
............[Sgd]............................................................
L M Gallagher, Member
CATCHWORDS
COMPENSATION – workplace injury – whether the Australian Postal Corporation had a present liability to pay compensation – whether lower back injury resolved or ceased – whether Mr Hickey ceased to suffer from the effects of the injury – L5-S1 disc prolapse on the left with a sequelae of soft tissue injury – where Australian Postal Corporation initially accepted liability – Reviewable Decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 43(1)
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss – 4(1), 5A, 5B, 14, 14(1), 16, 16(1), 19, 38(4), 53, 54(1), 54(2), 60(1), 62, 64(1)(a)
CASES
Cross and Comcare [2018] AATA 52
Comcare v Drinkwater [2018] FCAFC 62
Hickey and Australian Postal Corporation [2018] AATA 3930
Hickey and Australian Postal Corporation [2020] AATA 2646Telstra Corporation Limited v Hannaford (2006) 151 FCR 253
REASONS FOR DECISION
L M Gallagher, Member
20 May 2021
APPLICATION
Mr Hickey seeks review of a decision made by a delegate of the Australian Postal Corporation (the APC) on 30 June 2015 (the Reviewable Decision).[1] In the Reviewable Decision, the delegate affirmed an earlier determination dated 15 January 2015 in relation to Mr Hickey’s “L5-S1 disc prolapse on the left with a [sequelae] of soft tissue injury right foot” sustained on 27 September 1993. The January 2015 determination found that the APC had no present liability to pay compensation under ss 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act).[2]
[1]R2, T110.
[2]R2, T109.
PROCEDURAL HISTORY
The application was originally made to the Administrative Appeals Tribunal (the Tribunal) on 27 July 2015, with a second, separate application seeking review of an additional decision of a delegate of the APC being made to the Tribunal on 13 February 2015.[3]
Both applications were heard at the same time by the Tribunal on 20, 21 and 22 June 2017 and on 12, 13 and 14 December 2017. Written closing submissions were provided by the parties in February, March and June 2018.
[3]The second, separate application being AAT Application 2015/0729. This second application related to Mr Hickey’s claim regarding a psychological condition. While the Present Application relates to Mr Hickey’s “L5-S1 disc prolapse on the left with a [sequelae] of soft tissue injury right foot” injury he claims was sustained on 27 September 1993, the Tribunal has retained some of the background materials relating to AAT Application 2015/0729 in its decision in order to preserve the factual and chronological picture.
By a decision dated 18 October 2018, the Tribunal:[4]
(a)found that it did not have jurisdiction to review the decision in relation to AAT Application 2015/3786 (the Present Application); and
(b)affirmed the decision under review in relation to the second, separate application (being AAT Application 2015/0729).
[4]Hickey and Australian Postal Corporation [2018] AATA 3930.
Mr Hickey appealed the Tribunal’s decision to the Federal Court of Australia with regard to the Present Application.[5] By orders made by his Honour Stewart J on 2 December 2019, and with the consent of the parties:
1. The appeal from the Tribunal’s decision in Application 2015/3786 is allowed;
2. That decision of the Tribunal is set aside;
3. The matter in Application 2015/3786 is remitted to the Tribunal for reconsideration according to law in light of the parties’ agreed notes…;[6]
4. The cross-appeal is dismissed; and
5. The respondent is to pay the applicant’s reasonable costs as between party and party of the appeal and cross-appeal, to be agreed or taxed.
[5]Mr Hickey did not appeal from the Tribunal’s decision in AAT Application 2015/0729.
[6]The agreed notes included in the orders made on 2 December 2019 contained the parties’ agreement that a question of law arises from the Tribunal's decision in Application 2015/3786, that the Tribunal erred in law and that such error vitiated its decision in Application 2015/3786.
On 12 February 2020, Deputy President Boyle made orders that the parties were to file submissions and evidence regarding the Tribunal’s jurisdiction to review the decision concerning the Present Application, which they did.[7]
[7]Hickey and Australian Postal Corporation [2020] AATA 2646 [8].
On 1 April 2020, Deputy President Boyle found that the Tribunal did have jurisdiction to review the decision in the Present Application, and in doing so sought and obtained the parties’ submissions as to the constitution of the Tribunal to determine the matter.[8]
[8]Hickey and Australian Postal Corporation [2020] AATA 2646 [8].
On 24 July 2020, Deputy President Boyle remitted the Present Application to the current Tribunal for reconsideration.[9]
[9]Hickey and Australian Postal Corporation [2020] AATA 2646 [30].
On 24 November 2020, the Tribunal heard the parties’ further brief oral submissions in the Present Application. In particular, the parties expressed their agreement as to the issues that remained for determination, being:
(a)whether, as at 15 January 2015, the APC had a present liability to pay compensation to Mr Hickey in respect of the costs of reasonable medical treatment (if any) obtained in relation to an “L5-S1 disc prolapse on the left with a [sequelae] of soft tissue injury right foot”, sustained on 27 September 1993, pursuant to s 16 of the SRC Act; and
(b)whether, as at 15 January 2015, the APC had a present liability to pay compensation to Mr Hickey in respect of incapacity for work resulting from an “L5-S1 disc prolapse on the left with a [sequelae] of soft tissue injury right foot”, sustained on 27 September 1993, pursuant to s 19 of the SRC Act.
FACTUAL BACKGROUND
Mr Hickey is a 62-year-old man who has been employed by the APC for approximately 27 years.[10] In or around 1993, Mr Hickey worked as a Postal Transport Officer (PTO).[11]
[10]Mr Hickey commenced employment at the APC in or around June 1993 (A1, paragraph 39 and the APC’s SFIC at [2]).
[11]R2, T7, page 21.
Initial claim for compensation
On 27 September 1993, Mr Hickey signed an incident report which stated that on that day he had “pain in lower back, servere [sic] when lifting left leg” following his attempt to pull a hanging mailbag, that was three quarters full, up and away from the mail bag hooks in a street pillar post box.[12]
[12]R2, T7, page 21; R2, T5, page 18.
On 28 September 1993, Dr Aidan Perse (general practitioner) provisionally diagnosed Mr Hickey with facet joint irritation.[13]
[13]R2, T6.
On 29 September 1993, Mr Hickey signed a claim form for compensation for the injury sustained in the incident two days prior. Mr Hickey identified the part of his body affected as the “lower back left side”. Mr Hickey described the events leading to his injury as follows:[14]
I WAS REMOVING A HANGING BAG FROM A[N] SPB IT WAS APP ¾ FULL. I REMOVED THE FRONT RINGS FROM HOOKS AND REACHED DOWN AND FORWARD TO REMOVE BACK RINGS. I LIFTED UP AND AWAY FROM MY BODY. I FELT A SLIGHT PAIN IN MY LOWER BACK. THIS PAIN GRADUALLY INCREASED, TOWARDS THE END OF MY SHIFT I FOUND IT SERVERLY [sic] PAIN FULL [sic] TO LIFT MY LEG OR TO BEND FORWARD.
[14]R2, T7.
On 7 October 1993, Mr Hickey’s claim for rehabilitation and compensation regarding the injury he suffered on 27 September 1993 received signed recommendation by a manager.[15]
[15]R2, T7.
Medical assessments and determinations during employment
In a determination dated 18 October 1993 (1993 Determination), the APC accepted liability under s 14 of the SRC Act for Mr Hickey’s injury suffered on 27 September 1993. The injury was at that point in time described as “facet joint irritation”.[16] The 1993 Determination also accepted liability under s 19 of the SRC Act for the period from 28 September 1993 to 5 October 1993.
[16]R3, ST2.
With regard to s 16 of the SRC Act, the 1993 Determination stated that “[a]ny reasonable medical expenses for your accepted work related condition will be considered for payment”.[17]
[17]R3, ST2. Mr Hickey made a number of claims for medical expenses under s 16 of the SRC Act in relation to the injury now referred to as “L5/S1 disc prolapse on the left”, which were approved by the APC, namely: 1) travel costs on 15 November 2012 and a series of household maintenance services (lawn mowing, gardening) provided between 7 November 2011 and 23 November 2012. It appears that Mr Hickey had provided copies of the relevant invoices in this regard (R2, T86 and T87); and 2) a claim for a pair of air sole shoes with inner arch support, which was accepted by the APC on 28 June 2010 (R2, T81).
Around 8 June 1994, Mr Hickey commenced an exercise program.[18]
[18]R2, T18.
By a determination dated 16 June 1994, the characterisation of Mr Hickey’s injury, suffered on 27 September 1993, was changed from “facet joint irritation” to “L5/S1 disc prolapse on the left”.[19]
[19]R3, ST3.
On 21 August 1995, Mr Hickey commenced a graduated return to work program, undertaking mail sorting duties at Rockingham Postal Distribution Centre.[20]
[20]R2, T27. The Tribunal notes that the Rockingham Postal Distribution Centre is referred to interchangeably in the decision as the “Rockingham Distribution Centre” and the “Rockingham Delivery Centre”, depending on how it is described by various individuals. The Tribunal understands both names to refer to the same premises.
On 25 September 1996, Mr Hickey was examined by Mr Harold Schaeffer (consultant neurosurgeon), who provided the following observations and opinion in his report dated 4 October 1996:[21]
Mr Hickey informed me that he continues to experience back pain. He is always aware of pain in the region of his left buttock and when the symptoms are severe, pain radiates down his leg – he pointed to the area behind the left knee and also in the region of the left lateral malleolus. The leg pain is intermittent. He also experiences some pain in the low back region itself but it is the pain in his left buttock which is the most prominent. …
I found the neurological examination to be normal. Both ankle reflexes were well preserved and there was no evidence of any muscle weakness or wasting and no abnormal sensory features. …
I consider that Mr Hickey is likely to have been experiencing some symptoms of discogenic origin. I suspect that he has disc degeneration and the L5/S1 level associated with a relatively small degree of laterally placed protrusion of the disc which from time to time results in irritation of the left S1 nerve root. However, it is my impression that he does not suffer from major nerve root compression.
Disc degeneration of this type is a constitutional phenomenon. The condition is not caused by trauma but it is true to say that trauma can have the effect of exacerbating the condition and the action of reaching forward and unhooking and lifting the mail bag on 27 September 1993 would be consistent with an aggravating circumstance.
I regard Mr Hickey’s current condition as being substantially the result of a naturally occurring process and the work incident is consistent with an aggravation of somewhat lesser aetiological importance.
It is likely that he experiences some continuing intermittent symptoms of irritative sciatica of moderate degree and I consider these irritative back symptoms are also significantly compounded by the fact he is enormously overweight and generally unfit.
[21]R2, T42, pages 97 to 99.
On 27 February 1998, Dr Mark Lethbridge (occupational physician) recommended that Mr Hickey participate in a graduated return to full-time work over a 10 to 12-week period.[22]
[22]R2, T49, page 121.
Dr Lethbridge reported on 17 August 1998 that Mr Hickey was fit to return to full-time restricted duties from that date.[23]
[23]R2, T52, page 132 and duplicate page 133.
On 7 February 2000, Dr Lethbridge further reported that Mr Hickey “… continues to work on a full time basis at the Rockingham Delivery Centre and currently administers all of Australia Post’s motor vehicle accident records relating to property damage for the whole of the state. … He is no longer box sorting or van driving … but he does supplement his MVA record keeping tasks with mail presequencing [sic] (ABC’s) should a Postal Delivery Officer be absent”.[24]
[24]R2, T62, page 147.
In or around November 2007, the APC created a new position for Mr Hickey as a Fleet Support Officer (A3).[25]
[25]R2, T70. Position No, 723131 in the Administration Section, Transport Division, Mail & Networks Division.
By a further determination dated 11 March 2010, the characterisation of Mr Hickey’s injury suffered on 27 September 1993 was further amended to “L5/S1 disc prolapse on the left and a [sequelae] of soft tissue injury (R) foot”.[26]
[26]R2, T80.
On 12 January 2011, Mr Paul Ryan (clinical psychologist) reported to Mr Hickey’s referring GP, Dr Mahomed Essa Rasool, that:[27]
As you would be aware Mr Hickey has been in dispute with his employer with respect to his role and being suitably reimbursed for the duties that it encompasses. Currently he broadly feels that the complexity of the role is not being recognized or validated by management and he said that likely due to his complaints it had been suggested his role would be outsourced. He said that within his work he felt isolated and marginalized. …
Overall Mr Hickey presents with an adjustment disorder with depressed mood this occurring in reaction to the circumstances detailed arising out of his original injury and its ongoing ramifications in his daily life. Clearly one of the drivers of Mr Hickey’s feelings of depression is his sense of helplessness to affect or change a situation which is psychologically demanding on him. …
[27]R2, T82, page 183.
In his report dated 15 November 2012, Dr Brian Dare (consultant occupational physician) reported that:[28]
[28]R2, T85, pages 188, 189, 191 and 192.
[Mr Hickey] stated that he had only been working with Australia Post for approximately six months prior to his back injury when he was driving trucks involved in the picking up and unloading of mail bags from mailboxes.
As a result of his back injury, he did not return to truck driving and was off work for at least two years, and was then redeployed into administration, initially working at the Rockingham distribution centre and then moved more into administration, managing the vehicle accident claims.
He was doing this fulltime until two years ago, when he was reduced down to 20 hours per week. He stated that more recently the job has been outsourced and he has been involved in assisting with the outsourcing of the work. He stated that that work has now come to an end and he is looking at being redeployed elsewhere. …
Mr Hickey describes variable constant left sided back pain and buttock pain and variable left leg pain. He stated he is worse if he sits for too long and this is the same with standing for too long. He tends to stand on his right leg to take the weight of his left leg.
He finds if he does stand too long he often gets shooting pain down the left leg.
In the mornings he is in more pain but is better once he has had a shower and is moving around, changing position. …
Mr Hickey has degenerative disease of his L5/S1 disc.
He sustained a disc protrusion following a work injury in 1993, and which caused left sided radiculopathy with his symptoms ongoing to the present day. He continues to have constant pain in the left lower back and buttocks and variable leg symptoms. Three years after his injury the disc protrusion was still persisting although he has not had any further scans since that time.
His other significant medical issue is his weight, now weighing 160kg, which obviously affects his mobility and would be a factor in his persistent lower back pain.
…
Further compensation claim
On 13 February 2014, Mr Hickey signed an incident report form which stated that he suffered from “depression”, the symptoms of which had developed “gradual [sic] over a period of years”.[29] Mr Hickey stated on the incident form that what had happened was “exclusion, indifference and lack of acknowlegment [sic] and reward”.[30]
[29]R1, T4, pages 13 and 17.
[30]R1, T4, page 15.
In an email to the APC dated 14 February 2014, Mr Hickey elaborated on a number of the matters in his incident report form dated 13 February 2014.[31] Mr Hickey said that he
“… cannot define a specific point in time when I first became affected by depression, only that its development was most probably initiated after a meeting I attended sometime in 2006 held between myself, then manager of WA Transport Division, Jim Rolt, and then newly appointed admin manager of WA Transport, Chris Morgan”.[32]
[31]R1, T8.
[32]R1, T8, page 30.
On 14 February 2014, Mr Hickey lodged a claim for compensation for “depression”, which he claimed to have developed over time, with treatment having commenced on
20 August 2013.[33]
[33]R1, T3, page 10.
In Mr Hickey’s witness statement dated 16 October 2016, he described the meeting (that took place in or around late 2006) outlined in his claim for compensation as:[34]
Eventually Jim Rolt came to the Rockingham Distribution Centre and we went for a coffee. I opened the meeting explaining that at the time I was still been [sic] paid as a Truck Driver. I explained that I had no development and no performance review ever, and under the current arrangements I could see no career prospects within the business.
Jim Rolt’s response was, verbatim:
“Under the Safety, Rehabilitation and Compensation Act of 1988 Australia Post has an obligation to provide you with meaningful work. In fulfilling the position you currently hold for Australia Post, Australia Post has fulfilled its obligation to you, and what you are currently experiencing is a tragedy of your own circumstance.”
[34]A1, paragraph [63].
On 4 March 2014, Dr Rasool provided a medical certificate which stated that:[35]
Mr Hickey was probably depressed for many years. He was extremely depressed on the 20/08/2013 and was started with antidepressants and referred for depression to Dr Haroon Riaz a Psychologist.
[35]R1, T9, page 34.
At the APC’s request, Mr Michael Alexeeff (consultant orthopaedic surgeon) assessed Mr Hickey on 18 March 2014. Mr Alexeeff’s related report dated 21 March 2014, states, among other things, that:[36]
There was no evidence of congenital, constitutional or development pathology. Obviously, [Mr Hickey] did sustain discogenic injury at the L5/S1 level in 1993. It would appear that radicular symptoms settled in due course, with this being in keeping with the natural history of this pathology in approximately 70% of individuals. As a consequence, [Mr Hickey] has maintained symptoms of mechanical low back pain, with this to some degree, being more related to the progressive nature of this pathology, rather than any disc pathology localised to the lumbo-sacral junction. …
As indicated above, given the passage of time since the original injury on 27th September 1993 (date of injury), with it likely that [Mr Hickey] did sustain an L5/S1 disc protrusion, [Mr Hickey’s] circumstances from this would have improved within a given timeframe or he would have required surgery. Sciatica is a very painful condition. Interestingly both Orthopaedic Surgeons who provided opinions at the time (Mr P Bath, Mr F Bell), both seemingly advised of non-operative treatment in the first instance. Mr Bell did recommend a root sleeve injection and possibly, facet joint injections.
Notwithstanding that [Mr Hickey] was redeployed, I am of the view that [Mr Hickey’s] symptoms related to the radicular presentation probably settled within a given timeframe, with [Mr Hickey] returning to employment in August 1995. His status now does not reflect a radicular presentation.
(Original emphasis.)
[36]R2, T100, pages 248 to 250.
On 10 April 2014, Dr Rasool certified Mr Hickey as unfit for work until 24 April 2014 as a result of his depression, low back pain and right foot pain.[37] Mr Hickey did not return to work after this date.
[37]R1, T11.
Determinations concerning Mr Hickey’s psychological condition
On 21 May 2014, at the APC’s request, Mr Hickey attended Dr Peter McCarthy (consultant psychiatrist) for a medico-legal assessment. In Dr McCarthy’s related report, dated 16 June 2014, he diagnosed Mr Hickey with major depressive disorder of moderate severity and found that at the date of assessment, Mr Hickey was in partial remission.[38] Dr McCarthy then gave the following opinion as to the factors that have likely contributed to Mr Hickey’s condition:[39]
Mr Hickey has become enmeshed in the workers compensation process … He has been disappointed by subsequent experiences in the workplace, particularly losing the niche that he was able to carve out for himself over an eight year period in motor vehicle insurance administration.
He feels that his talents have not been adequately used in the last two years however he is currently off work with an exacerbation of his depression as a result of his being informed that his workers [sic] compensation claim for his back was being reviewed and possibly denied. The latter is 60% responsible for his current depressed mood.
I think that at different periods over the last 20 years various events, whether life events or work events, have contributed to an exacerbation of his mood from time to time. He was vague over whether his mood had actually ever completely settled over the last 20 years.
I think personality factors have had and continue to have a significant contributing role in the genesis and maintenance of his psychiatric disorder, constituting a 40% contribution to his current psychiatric state.
[38]R1, T22, page 66.
[39]R1, T22, pages 67 and 68.
On 31 July 2014, a delegate of the APC determined it was not liable to pay compensation under s 14 of the SRC Act for Mr Hickey’s “depression” condition.[40] The delegate relied on the evidence provided by Dr Rasool and Dr McCarthy (refer to paragraphs [31] and [34] above) in forming the view that she was unable to establish that Mr Hickey’s employment with the APC had “… caused or contributed to [Mr Hickey’s] condition in a significant degree, as required by s5B of the [SRC] Act”.
[40]R1, T26.
On 25 August 2014, Mr Hickey requested reconsideration of the APC’s determination dated 31 July 2014.[41]
[41]R1, T31, T32 and T33.
On 12 November 2014, a reconsideration delegate of the APC affirmed the determination dated 31 July 2014.[42] The reconsideration delegate was not satisfied that Mr Hickey reported his “injury” as soon as practicable after becoming aware of it and accordingly found that s 53 of the SRC Act applied. Further, the reconsideration delegate was not persuaded that Mr Hickey’s claimed psychological condition was “work-related” in accordance with the SRC Act.
[42]R1, T36.
The reconsideration delegate also found that if she had accepted that Mr Hickey had suffered an “injury” as defined (which she did not), she was satisfied that any rights that Mr Hickey may have had to compensation benefits would be excluded. The delegate stated that the exclusion would be on the basis of the exclusionary provision protecting employers’ rights to undertake reasonable administrative action in a reasonable manner, as defined in s 5A of the SRC Act.
In his application to the Tribunal for a review of the APC’s reconsideration determination dated 12 November 2014, Mr Hickey states that he considers that determination to be wrong on the basis that:[43]
Both APC’s decisions are wrong being based soley [sic] upon the confirmation bias driving their approach and influencing the opinions of their alledgedly [sic] “independant” [sic] medical reviewers via omissions of facts and crusial [sic] information and misrepresentation of truths based upon groundless conclusions.
[43]R1, T1, page 2.
Determinations concerning physical injury (the Present Application)
On 15 January 2015, a delegate of the APC determined that as of that date, there was no present liability for compensation benefits in respect of Mr Hickey’s “L5-S1 disc prolapse on the left with a [sequelae] of soft tissue injury right foot” sustained on 27 September 1993, pursuant to ss 16 and 19 of the SRC Act.[44] The delegate stated that the determination was based on the contents of Mr Alexeeff’s medical report and on no additional information having been provided by Mr Hickey or by Dr Rasool in response.
[44]R2, T109.
On 24 June 2015, Mr Hickey requested reconsideration of the delegate’s determination dated 15 January 2015.[45]
[45]Referred to in R2, T110.
On 30 June 2015, a reconsideration delegate of the APC made the Reviewable Decision, which forms the basis of the Present Application.[46] The reconsideration delegate stated that she agreed with the reasons for the decision made in the initial determination and that there was nothing further provided in the request for reconsideration to persuade her otherwise.
[46]R2, T110.
In his application to the Tribunal for a review of the reconsideration delegate’s determination dated 30 June 2015 (regarding the Present Application), Mr Hickey states that he considers that determination to be wrong on the basis that:[47]
Both the initial and reviewing officers acting on behalf of Australia Post, have based their decision to cease ongoing worker’s [sic] compensation payments relating to the back injury sustained by me on 27/09/1993, upon a single medical report obtained by Australia Post, as a result of their charter of Mr Michael Alexeef [sic], to conduct a medical review which was undertaken by him on 18/03/2014. I disagree with the many assertions contained within Mr Alexeef’s [sic] report. I firmly believe the opinions expressed by Mr Alexeef’ [sic] in his report, reflect a heavy ‘confirmation bias’ which had been purposefully influenced by Australia Post Claims Management section, WA, in their selection of information provided, and withheld from Mr Alexeef [sic], prior to him undertaking his examination.
[47]R2, T1, page 7.
Medical assessments following the Present Application
On 20 September 2016, Mr Hickey’s solicitors arranged for Mr Hickey to be assessed by
Dr Frederick Ng (psychiatrist). Dr Ng’s related report of the same date[48] diagnosed Mr Hickey with a major depressive disorder.[49] Dr Ng considered that the history that Mr Hickey provided, including resentment with working at a higher level than that for which he was paid, and the outsourcing of his role, would have to one extent or another exacerbated and perpetuated any depressive and anxiety symptoms suffered by him. Dr Ng considered that Mr Hickey suffered added distress and an exacerbation of depression and anxiety when the APC revisited his ongoing physical difficulties and sent him to an orthopaedic surgeon in 2014.[50]
[48]A14.
[49]A14 at page 17.
[50]A14 at page 16.
The APC arranged for Dr Lawrence Terace (consultant forensic psychiatrist) to review Mr Hickey on 12 October 2016. In his resulting report dated 26 October 2016,[51] Dr Terace expressed the opinion that Mr Hickey suffered from symptoms of pre-existing attention deficit hyperactivity disorder (ADHD) of adulthood, or alternatively major depressive disorder which was in partial remission and relatively modest in severity.
[51]R9, page 3.
The APC arranged for Mr Fredrick J Phillips (consultant orthopaedic surgeon) to review Mr Hickey on 20 October 2016. In his related report dated 28 October 2016, and in relation to the incident on 27 September 1993, Mr Phillips stated:[52]
[52]R6, pages 7, 8 and 9 of report.
The incident was an episode of low back pain.
The fact that a disc protrusion was identified does not necessarily mean that it was caused by the incident.
Disc protrusions are common in this age group.
The history suggests an acute episode however at lumbosacral level with some irritation of the S1 nerve root.
I have commented on the fact that a more recent plain X-ray has not identified deterioration at the L5/S1 level that one might have expected had there been a significant acute disc protrusion at L5/S1.
I have also made note of the persistence of the left ankle jerk which would not be consistent with there having been comprise [sic] of this nerve root even after resolution of any disc protrusion.
Thus the condition that arose from the incident of 27 September 1993 was an acute strain, with possible minor irritation of the left S1 nerve root. …
My diagnosis is one of chronic pain complaint with psychosocial issues. …
In my opinion possible radicular symptoms have settled in keeping with the natural history and discogenic injury in many people for the objective reasons that I have explained. …
Any physical condition that arose from the incident of 27 September 1993 in my opinion resolved within the expected time frames as is of the natural history which is usually within three months.
Ongoing symptoms relate to psychosocial issues which were extensively expressed during this interview and also in the file material. …
The symptoms do not incapacitate him for work. …
Within my area of expertise I would not recommend any ongoing medical treatment.
Mr Hickey’s solicitors arranged for him to be assessed by Mr Barrie Slinger (orthopaedic surgeon) on 31 October 2016. In Mr Slinger’s related report dated 31 October 2016 he stated that:[53]
The current diagnosis is that of degenerative disc disease. …
In my opinion your client’s present disability relates in the major part to the original injury of 1993. The natural history of disc protrusion or herniation, is one of progressive degenerative change, with or without surgery, and that degenerative change may or may not be symptomatic, dependent upon the severity of the symptoms.
It is entirely reasonable to subscribe his present symptoms to that injury, in view of the fact that chronologically, he has had continuous symptoms since that time, whilst there may well be a component relative to progressive degenerative change, in my opinion, that progressive degenerative change may well relate to the original disc injury. …
Your client is fit to return to work of a light nature, allowing him to sit or stand at discretion, three to four hours a day, four to five days a week, as he was performing previously, quite satisfactorily, until the work was out-sourced. …
Treatment recommendations are to an attempt to [sic] weight reduction, which I anticipate will be particularly difficult, to an exercise programme, which he could undertake at home, with some gentle stretching and strengthening, ideally in a hydrotherapy environment, and continuing with his present medication. …
[53]A4, pages 3 and 4 of report.
Subsequently, in a report dated 3 January 2017, provided at Mr Hickey’s solicitors’ request, Dr Desmond Williams (orthopaedic surgeon) stated:[54]
… I have noted the significant major weight gain and his lack of core muscle strength about his spine as a contributor to his ongoing lumbar symptoms. …
I have agreed with the position taken by Dr Slinger in his report dated 31st October 2016 where he states that the patient’s present disability relates in a major part to the original injury of 1993, noting the natural history of disc protrusion, one of progressive degenerative change with or without surgery and the degree of degenerative change will vary and the degree of symptoms will vary.
[54]A8, pages 23 and 26 of report.
In a report dated 18 January 2017, Dr Rasool considered that Mr Hickey’s back injury remained attributable to his employment with the APC and that Mr Hickey was unfit for work. However Dr Rasool did not provide any further detail on these matters.[55]
[55]A2.
In his report dated 24 February 2017,[56] Dr Haroon Riaz (psychiatrist) noted that Mr Hickey came under his care in May 2011 for his ADHD, a non-work-related condition. In that report, Dr Riaz noted that around late 2013, Mr Hickey’s situation became “somewhat complicated” because the APC began outsourcing the work he was doing and that with almost complete withdrawal of his work, he became extremely depressed.[57] Dr Riaz also noted that Mr Hickey’s contact with him after 2015 decreased to the point that he had not seen Mr Hickey for 12 months prior to when he saw him at Mr Hickey’s solicitors’ request on 23 February 2017.
[56]A12.
[57]A12 at page 2.
LEGISLATION AND GENERAL PRINCIPLES
The APC’s general liability to pay compensation is set out in s 14 of the SRC Act. Section 14(1) of the SRC Act provides that:
Subject to this Part, Comcare 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.
Section 5A of the SRC Act defines “injury” as follows:
(1) In this Act:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
(Original emphasis.)
“Disease” is defined in s 5B of the SRC Act as follows:
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
(Original emphasis.)
The Tribunal notes Deputy President Boyle’s discussion of the meaning of “contributed to, to a significant degree” in paragraphs [128] to [135] in the decision of Cross and Comcare [2018] AATA 52:
Meaning of “contributed to, to a significant degree”
128.The key issue with establishing a compensable “disease” under the Act is that the employee must prove that the employment contributed, to a significant degree, to the disease.
129.Previously, the Act defined “disease” to mean an ailment or aggravation that was “contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation”. The significant degree threshold was inserted on 13 April 2007 in response to Parliament’s view that [sic] way in which the courts had interpreted the phrase “material degree” under the previous definition of “disease” had had the effect of significantly reducing the extent to which employment must have contributed to a disease for it to be compensable.
130.Relevantly, the Explanatory Memorandum to the Safety, Rehabilitation And Compensation And Other Legislation Amendment Bill 2006 states:
The initial legislative intent was to establish a test requiring a claimant to prove that his or her employment was ‘more than a mere contributing factor in the contraction of the disease’ (see the Second Reading speech to the Commonwealth Employees’ Rehabilitation and Compensation Act 1988 – subsequently renamed as the SRC Act). The phrase ‘contributed to in a material degree’ was intended to ensure that the Commonwealth was not liable to pay compensation for diseases which have little, if any, connection with employment.
However, the courts have read down the expression ‘in a material degree’ to emphasise the causal connection between the employment and the condition complained of rather than the extent of the contribution. The purpose of the proposed amendment is to assist in reinstating the intended policy behind the Commonwealth workers’ compensation scheme by limiting access to compensation claims for diseases to which work has only made a very minor contribution.
131.The Full Court of the Federal Court in Dunstan v Comcare [2011] FCAFC 108 noted that the intention of changing the threshold was “to impose a more stringent test of the causal relationship between employment and disease”. The Court said that the test was intended to be broader than the “daily duties, or specific aspects of the workplace environment” and was intended simply to refer to “employment as a factor that operated actively to bring about the condition” (Dunstan at [40]).
132.“Significant degree” is defined in s 5B(3) of the Act to mean “a degree that is substantially more than material”.
133.In Crouch v Comcare [2013] AATA 608, Deputy President Handley stated at [40]:
A “significant degree” means “substantially more than material” (s 5B(3)) in a context where “material” in itself means something of substance (see above Sahu-Khan).
134.In Comcare v Power [2015] FCA 1502, Judge Katzmann relevantly stated that:
[78] A contribution to a degree that is substantially more than material must necessarily be substantially greater than one which is trivial.
...
[83] In Comcare v Canute (2005) 148 FCR 232; 89 ALD 258; [2005] FCAFC 262 at [68] (Canute), however, French and Stone JJ took issue with the application of this approach to the definition of “disease” in the SRC Act. Although their Honours accepted that a “but for” test was inappropriate, after referring to the Minister’s second reading speech on the introduction of the Bill which became the SRC Act, they said:
the changes brought about by the enactment of the SRC Act were intended to require that the contribution be “more than a mere contributing factor” ... Content must be given to the word “material” contained in the definition of “disease” in the legislation as it presently stands. The inclusion of this term imposes an evaluative threshold below which a causal connection may be disregarded. …
[85] In Comcare v Sahu-Khan (2007) 156 FCR 536; [2007] FCA 15 at [14] (Sahu-Khan) Finn J observed that the legislative history of the definition of “disease” makes it plain that the term “material” in the phrase “in a material degree” in the SRC Act was not used to denote a contribution which was only greater than de miminis. Thus, it appears that, despite the common law approach to “material contribution”, the intention of the SRC Act was that the contribution of the employment to the disease of an afflicted employee had to be not just greater than trivial. In Sahu-Khan Finn J noted (at [15]) that the Shorter Oxford English Dictionary defined “materially” to include “substantially” and “considerably”. ...
[93] There is no room for doubt that the purpose of the 2007 amendments was to strengthen the connection necessary between the employment and the contraction or aggravation of a disease. Including a definition of “significant” as “substantially more than material” makes this abundantly clear. In other words, it is insufficient that the contribution of the employment be “more than trivial”; it had to be substantially more than trivial...
[94] Moreover, the current test of contribution also requires an evaluative exercise to be undertaken. That is apparent both from the words used in subs (1) of s 5B and also the matters to which subs (2) draws attention... While the chapeau to the subsection states that those matters “may” (not “shall”) be taken into account, a word which is generally permissive, properly construed it is at least arguable that in this context it is directory; in other words that “may” means “shall”...
135.The Tribunal also notes the following comments made by Member Taglieri in Reardon and Comcare [2015] AATA 360:
[35] This has been settled in law and it requires the contribution by employment to be substantially more than “material”.
[36] In Su v Comcare the requirement of contribution to a significant degree was expressed as follows, when approving of Justice Finn’s approach to interpretation in Comcare v Sahu-Kahn:
“When determining whether any contribution of the employment is of ‘a significant degree’, matters that may be taken into account are set out in section 5B(2). The assessment of causal factors that contribute to a disease is not simply relativistic. The threshold question for the purposes of the Act is whether the employment contributes to ‘a significant degree’ ‘that is substantially more than material’. This is the “evaluative threshold below which a causal connection may be disregarded”[4]. If the contribution is to a significant degree, it is beside the point that one factor contributes to a greater extent than another. Nor does it matter that factors outside the frame of employment also contribute to a significant degree. The Act does not require employment to be the sole, proximate or dominant cause of an injury.”
[37] I must be satisfied on the balance of probabilities, that contribution by employment was to a significant degree and it ought not be left in the area of possibility or conjecture. Further, whether employment contributed to a significant degree, is a question of fact to be determined by the Tribunal in each case.
(Original emphasis)
The term “ailment” is defined in s 4(1) of the SRC Act to mean:
… any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
In relation to compensation for medical expenses, s 16(1) of the SRC Act relevantly provides:
Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
Section 19 of the SRC Act provides that the APC (as a licensee) is liable to pay compensation to an employee who is incapacitated for work as a result of an injury. Section 19 of the SRC Act also sets out the formula for calculating the amount of compensation to which a relevant employee is entitled.
Compensation is not payable to a person under the SRC Act unless a claim for compensation is made by or on behalf of the person in the approved form (ss 54(1) and 54(2) of the SRC Act).
In relation to reconsideration of determinations, s 62 of the SRC Act relevantly provides:
(1) A determining authority may, on its own motion:
(a) reconsider a determination made by it; or
(b) cause such a determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than the person who made, or was involved in the making of, the determination;
whether or not a proceeding has been instituted or completed under this Part in respect of a reviewable decision made in relation to that determination.
(2) A request to a determining authority to reconsider a determination made by it may be made by:
(a) the claimant; …
…
(4) On receipt of a request, the determining authority shall reconsider the determination or cause the determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than a person who made, or was involved in, the making of the determination. …
Subsection 64(1)(a) of the SRC Act provides that an application for the review of a reviewable decision may be made by the claimant to the Tribunal.
Determination means a determination, decision or requirement made under (relevantly and among other sections) ss 14, 16, and 19 of the SRC Act (s 60(1) of the SRC Act).
Reviewable decision means a decision made under ss 38(4) or 62 of the SRC Act
(s 60(1) of the SRC Act).ISSUES
As noted at paragraph [8] above, the issues for the Tribunal are:
(a)whether, as at 15 January 2015, the APC had a present liability to pay compensation to Mr Hickey in respect of the costs of reasonable medical treatment (if any) obtained in relation to an “L5-S1 disc prolapse on the left with a [sequelae] of soft tissue injury right foot”, sustained on 27 September 1993, pursuant to s 16 of the SRC Act; and
(b)whether, as at 15 January 2015, the APC had a present liability to pay compensation to Mr Hickey in respect of incapacity for work resulting from an “L5-S1 disc prolapse on the left with a [sequelae] of soft tissue injury right foot”, sustained on 27 September 1993, pursuant to s 19 of the SRC Act.
In determining whether there was a present liability, as set out in paragraph [63] above, the Tribunal is in turn required to consider:
(a)whether the previously accepted and compensable lower back injury sustained on 27 September 1993, however described, had resolved or ceased; or
(b)whether Mr Hickey had ceased to suffer from the effects of that injury,
as at or before 15 January 2015. If so, that would conclude the Tribunal’s deliberations and the appropriate relief would be to affirm the Reviewable Decision, in accordance with s 43(1) of the AAT Act.
If not, the Tribunal would then be required to consider whether Mr Hickey continues to:
(a)require medical treatment for the purposes of s 16 of the SRC Act in relation to; or
(b)suffer from incapacity from work, for the purposes of s 19 of the SRC Act as a result of;
any injury,[58] sustained on 27 September 1993, from which he continues to suffer the effects.
[58]In the case of s 19 of the SRC Act, any compensable injury.
EVIDENCE
The two applications were dealt with together at the hearing in Perth on 20, 21 and 22 June 2017 and on 12, 13 and 14 December 2017. Mr Hickey appeared in person and was represented by Counsel, Mr Robert McCabe. Mr McCabe was instructed by Mr Damien Hill from W G McNally Jones Staff Lawyers. The APC was represented by Counsel, Mr Peter Woulfe. Mr Woulfe was instructed by Ms Amanda Danti from Moray & Agnew Lawyers.
The following witnesses gave oral evidence and were cross-examined at the hearing:
· Mr Hickey;
· Mr Barrie Slinger, orthopaedic surgeon;
· Mr Bryan Watkins, union representative;
· Dr Desmond Williams, orthopaedic surgeon;
· Dr Haroon Riaz, psychiatrist;
· Ms Pratiksha Shah, APC employee;
· Mr Glen Resuggan, APC employee;
· Mr Colin Bailey, APC employee;
· Mr Fredrick J Phillips, consultant orthopaedic surgeon;
· Mr Michael Alexeeff, orthopaedic surgeon;
· Ms Donna Vecchio, APC employee;
· Ms Jennifer Porter, APC employee; and
· Ms Debra Thornborough-Owen (née Ms Debra Payne), APC employee.
The Tribunal received the following evidence:[59]
[59]The Tribunal notes for completeness that Exhibits A18, A19, A20, R21 and R22 were exhibited during the hearing on 24 November 2020 and relate only to the Present Application. Refer to [8] above.
·Mr Hickey’s witness statement dated 16 October 2016, including bundle of documents (marked A–O,) and referred to within his statement (A1);
·medical report of Dr Essa Rasool (GP) dated 18 January 2017, with briefing letter from W G McNally Jones Staff dated 4 January 2017 (A2);
·curriculum vitae of Mr Barrie Slinger (orthopaedic surgeon), undated and received by the Tribunal on 8 December 2016 (A3);
·medical report of Mr Barrie Slinger dated 31 October 2016, with briefing letter from W G McNally Jones Staff dated 8 September 2016 (A4);
·supplementary medical report of Mr Barrie Slinger dated 7 June 2017, with briefing letter from W G McNally Jones Staff dated 29 May 2017 (A5);
·witness statement of Mr Bryan Watkins dated 6 June 2017, with attachments (A6);
·curriculum vitae of Dr Desmond Williams (orthopaedic surgeon), undated and received by the Tribunal on 8 June 2017 (A7);
·medical report of Dr Desmond Williams dated 3 January 2017, with briefing letters (two) from W G McNally Jones Staff dated 8 September 2016 and 17 November 2016 (A8);
·supplementary report of Dr Desmond Williams dated 7 June 2017, with briefing letter from W G McNally Jones Staff dated 29 May 2017 (A9);
·supplementary medical report of Dr Desmond Williams dated 18 June 2017 (A10);
·intervertebral disc diagrams, side and cross view, extracted from Grants Atlas of Anatomy, undated (A11);
·medical report of Dr Haroon Riaz (psychiatrist) dated 24 February 2017, with briefing letter from W G McNally Jones Staff dated 1 December 2016 (A12);
·witness statement of Mr Craig Power dated 16 December 2016 (A13);
·medical report of Dr Frederick Ng (consultant psychiatrist) dated 20 September 2016, with briefing letter from W G McNally Jones Staff dated 8 September 2016 (A14);
·supplementary medical report of Dr Frederick Ng dated 5 June 2017, with briefing letters (two) from W G McNally Jones Staff dated 25 May 2017 and 30 May 2017 (A15);
·supplementary report of Dr Haroon Riaz dated 13 June 2017, with briefing letters dated 25 May 2017 and 30 May 2017 (A16);
·letter from Mr Michael Alexeeff (orthopaedic surgeon) dated 30 May 2017, with enclosed letter dated 26 February 2014 (A17);
·Mr Hickey’s closing submissions and list of authorities dated 1 February 2018 (A18);
·Mr Hickey’s response to the APC’s closing submissions dated 16 March 2018 (A19);
·Mr Hickey’s bundle of documents prepared for 24 November 2020 hearing, filed on 19 November 2020 (A20);
·section 37 T-Documents, consisting of:
oa 101 page set of T-Documents (T1–T40) in relation to Application 2015/0729 (R1);
oa 269 page set of T-Documents (T1–T110) in relation to Application 2015/3786 (R2); and
oa 520 page set of supplementary T-Documents (ST1–ST23, 2 volumes) in relation to Application 2015/0729 and Application 2015/3786 (R3);
·Patient Health Summary from the Ridge Baldivis Medical Centre, including surgery consultation records by Dr Essa Rasool of various dates and printed on 14 July 2015 (R4);
·medical report of Dr Haroon Riaz dated 4 May 2011 (R5);
·
medical report of Mr Fredrick Phillips (consultant orthopaedic surgeon) dated
28 October 2016, with briefing letter from Moray & Agnew Lawyers dated 14 October 2016 (R6);
·supplementary medical report of Mr Fredrick Phillips dated 16 May 2017, with briefing letter from Moray & Agnew Lawyers dated 12 May 2017 (R7);
·curriculum vitae of Mr Fredrick Phillips, undated and received by the Tribunal on 21 June 2017 (R8);
·
medical report of Dr Lawrence Terace (consultant forensic psychiatrist) dated
26 October 2016, with briefing letter from Moray & Agnew Lawyers dated 10 October 2016 (R9);
·supplementary report of Dr Lawrence Terace dated 17 May 2017, with briefing letter from Moray & Agnew Lawyers dated 12 May 2017 (R10);
·supplementary report of Dr Peter McCarthy (consultant psychiatrist) dated 23 May 2017, with briefing letter from Moray & Agnew Lawyers dated 12 May 2017 (R11);
·index of documents provided to Mr Fredrick Phillips, numbered 1(a)–1(m), 2 to 7 and received by the Tribunal on 12 December 2017 (R12);
·index of documents provided to Mr Michael Alexeeff, numbered 1, 2(a) – 2(m), 3 to 12 and received by the Tribunal on 12 December 2017 (R13);
·witness statement of Ms Donna Vecchio, dated 23 May 2017, with annexures (R14);
·witness statement of Ms Jennifer Porter, dated 23 May 2017, with annexures (R15);
·witness statement of Ms Joanne Roberts, dated 22 May 2017 (R16);
·witness statement of Ms Debra Thornborough-Owen, dated 19 May 2017, with annexures (R17);
·witness statement of Ms Pratiksha Shah, dated 24 May 2017, with annexures (R18);
·witness statement of Mr Glen Resuggan, dated 22 May 2017, with annexures (R19);
·witness statement of Mr Colin Bailey, dated 23 May 2017 (R20);
·the APC’s closing submissions, dated 2 March 2018 (R21); and
·
the APC’s bundle of documents prepared for 24 November 2020 hearing, filed on
23 November 2020 (R22).
The following additional material was put before the Tribunal prior to and following the substantive hearing in accordance with the Tribunal’s directions:
·Mr Hickey’s Statement of Issues, Facts and Contentions (Mr Hickey’s SFIC) dated 25 January 2017;
·APC’s Statement of Facts, Issues and Contentions (APC’s SFIC) dated 27 March 2017;
·the APC’s written closing submissions regarding Comcare v Drinkwater [2018] FCAFC 62 (Drinkwater), dated 15 June 2018;
·Mr Hickey’s written submissions in response to the APC’s submissions regarding Drinkwater, dated 25 June 2018; and
·the parties’ Statement of Agreed Facts submitted at the hearing.
Having reviewed all of the evidence before it, the Tribunal is satisfied that both parties were provided an opportunity to address the evidence. Relevant aspects of the evidence are referred to below.
Mr Hickey’s evidence
At the hearing, Mr Hickey gave oral evidence to the Tribunal in person, including during cross-examination by the APC’s counsel, Mr Woulfe. Mr Hickey had earlier provided a statement dated 16 October 2016, which includes a bundle of documents (marked A–O) referred to within the statement (A1).
The Tribunal acknowledges that a proportion of Mr Hickey’s evidence relates to Application 2015/0729. The Tribunal has not sought to excise this evidence from its decision entirely, in order to give further context to the chronology and factual picture set out under the heading “Factual Background”.[60] Rather, it has provided this evidence as an annexure to this decision (Annexure A).
[60]Similarly, see footnote 9. The corresponding related evidence provided by Mr Watkins, Dr Riaz, Ms Vecchio, Ms Porter, Ms Thornborough-Owen, Ms Shah, Mr Resuggan and Mr Bailey is set out in Hickey and Australian Postal Corporation [2018] AATA 3930. Given the issues for review in the present matter, it is unnecessary to restate the evidence from these witnesses in this decision, either in the body of the decision or in an Annexure.
The evidence that follows under the heading “Mr Hickey’s statement” from paragraph [74] onwards is the evidence relating to the Present Application.
Mr Hickey’s statement
In his statement dated 16 October 2016,[61] Mr Hickey’s describes the events of
[61]A1.
27 September 1993 as follows:
10.On the date of my accident, 27 September 1993, I was doing mail pickups in a van. I was clearing a street posting box. I had only been doing this type of work for a short time. The mail in the bag had been bricked together. This means the bag can look almost empty not withstanding that it had significant weight of mail in it. It was common for businesses and organisations back at that time to arrange their mail together into bricks, all of which were going to the same postcode. This assisted primary sorting of mail by Australia Post.
11.In clearing a mailbox, the way in which the internal bag support frames were designed, you needed to reach out across the top of the frame and lift the bag from hooks located at the back. Whilst lifting the bag on this occasion I felt what I would describe as a sharp stinging pain in my lower back on the left side.
12.It was just a sting at first, like someone had flicked elastic onto my skin. There was not excruciating pain.
13.I was working my way back towards the depot still having a number of boxes to clear. I did my best to carry on with work as I was nearing the end of my shift.
14.By the time I cleared the last box, I was in significant pain. This was within about half an hour. I made it back to the depot but from memory someone else had to drive me home.
15.I rested at home, hardly moving for a day or so due to the pain, to the extent that I had to get my partner to bring me a bottle to void in.
Mr Hickey’s evidence at hearing
Mr Hickey’s counsel, Mr McCabe took Mr Hickey to paragraph [14] of A1 which states, in relation to the events on 27 September 1993, “[b]y the time I cleared the last box, I was in significant pain”.
When asked what his symptoms were at this time while being in significant pain, whether his symptoms changed after that, and what he feels when he experiences an inflaming event, Mr Hickey said:[62]
[62]Transcript, page 17 at [35] and page 18 at [5]–[45] and 19 at [5].
MR HICKEY: I had pain going down my left leg from my left buttock. There was like jolts of pain …
At first, those symptoms continued for a few days. I had my partner, Lara, bringing me bottles so I could urinate in them because I couldn’t get out of bed and get to the toilet. But when I was able, I made my way to see a doctor and after a few - after a few weeks the spasming attacks of pain subsided substantially. I was just left with a - just a constant like gnawing. I’ve described it in the past as like - like ants eating away at the base of my spine. It’s difficult to put in terms that others would understand but it was just a constant thing and that subsided somewhat over a period of time but it’s never abated. It’s always - there’s always a pain in my left buttock and that’s sort of the situation I have remained with today. I think the only thing that’s changed is over the years I have learned what I should and shouldn’t do in order to avoid inflaming the area because once I stir things up enough, then the problem becomes more constant and more difficult for me to manage. …
MR McCABE: Can you just describe what you feel when you [have] an inflaming event?
MR HICKEY: Well, if I stand for an extended period just in the one spot, and I keep my weight evenly on both feet, what can often happen is after a period of an hour or so, I don’t know three-quarters of an hour, it just depends, when I lift my left foot off the ground I get a sciatic discharge down my leg and that ‑ ‑ ‑
MR McCABE: What’s that? Can you just explain, what do you mean by a sciatic discharge?
MR HICKEY: Well, it’s like - it’s like back in the van when the injury first happened, when I first was trying to get in and out of the van using the bar work, it’s excruciating. It’s like almost an electric discharge but it’s violent and extremely painful. It lasts for a very short-term, like a bolt of electricity, but then I’m more susceptible to further discharges the same and that constant pain that’s in my left buttock is magnified until things settle down and that can be a coin toss in the air. It just depends on some many variables that I still can’t predict to this day. Sometimes it can settle down within the day, or the day after, and sometimes I’m stuck with it for a week, just the increased pain in my left buttock, and I’ve got a nursemaid through to make sure that I don’t do anything that’s going to trigger that discharge, as I call it, like that shooting pain. Once - that’s a trigger for greater pain. I pay for that. Once that happens I’m - I have to watch myself more carefully.
MR McCABE: Is that what you’re describing even to this day? Is that what you’re trying to say?
MR HICKEY: Yes, pretty much but I just learnt over the period of years what I’m - what I should avoid more so than others and it can also just be a matter of managing things on how I’m feeling that day and also I set myself up to do something. I’ve got to be a lot more careful. I mean I’ve got to think about things that I do before I do them. I can’t just go and grab something and hike it up like - you know, it’s not like that for me anymore. Now, I have to work out like a plan B. I sort of - if I want to move that object I’ll look at it, and if it can be sort of tilted and spun on one point and then tilted and then spun on the next point, so I’m not actually lifting so much but walking an item using its own weight for momentum. I’ve just - the benches in my workshop have - like all those have been set up now about 1100 millimetres - between 1000 and 1100 millimetres. …
During cross-examination, Mr Woulfe directed Mr Hickey to a reference in a report by Mr Schaeffer, consultant neurosurgeon, dated 12 September 1997.[63] The reference was to previous covert surveillance of Mr Hickey showing him performing a range of activities, including erecting a shed on his property.[64] Mr Hickey’s evidence on this footage was as follows:[65]
[63]R2, T46, pages 106 to 108.
[64]R2, T46, page 106.
[65]Transcript, page 67 at [30]–[45] and 68 [5]–[30]. See also A1 at [48].
MR WOULFE: Now, you were the subject of covert surveillance in a previous matter weren’t you?
MR HICKEY: Yes.
MR WOULFE: And that footage showed you doing a range of activities didn’t it?
MR HICKEY: Yes.
MR WOULFE: One of those activities was the erection of a shed on your property wasn’t it?
MR HICKEY: Well, the supervising thereof.
MR WOULFE: Yes, and you did undertake some periods of heavy manual work, didn’t you?
MR HICKEY: It would depend on who’s making the determination because they’re talking about a wheelbarrow that they calculated the weight of by the size of the person who was pushing it, which is what they state. That person was actually a 14 year old boy and he was a tall boy, but he was 14 years old. He had no experience using a wheelbarrow, he had problems balancing it even when it was just about empty. I showed him on a number of occasions how you’re best off using a wheelbarrow because I had had a fair bit of experience with one in the past.
MR WOULFE: If you go to the bottom paragraph please?
MR HICKEY: The bottom? Yes.
MR WOULFE: You see there Mr Schaeffer acknowledges that you were mostly supervising?
MR HICKEY: Yes.
MR WOULFE: Words to that effect?
MR HICKEY: Yes.
MR WOULFE: He states also though that on two or three occasions you’d raise the handles of a wheelbarrow heavily laden with cement?
MR HICKEY: Well, no, I disagree with that.
MR WOULFE: But you did lift a wheelbarrow with cement in it?
MR HICKEY: I did but it wasn’t heavily laden with cement. It had some cement in it that we - this was a shed being constructed here and the cement was to make footings for poles. The whole idea is to pour the cement into the hole - the hole is only this round. You need that much cement in the barrow. It’s not like heavily laden. They calculated that - like I said - by the size of the boy who I was showing how to use a wheelbarrow and [name omitted] was 14 years of age. He’s taller than me at that time but he’s just a boy - he’s not a strong boy.
MR WOULFE: Well, perhaps we can just cut to the chase. What was seen on the video was different from what you told work you were limited to do, wasn’t it?
MR HICKEY: No.
MR WOULFE: Because you were doing more in your physical endeavours in terms of supervising and assisting with their erection ‑ ‑ ‑?
MR HICKEY: I was - I was ‑ ‑ ‑
MR WOULFE: Sir, can I just finish? The supervising and the erection of a shed?
MR HICKEY: M’mm.
MR WOULFE: Than you had led your work to believe was within your physical capacity?
MR HICKEY: No.
Further, regarding the activities Mr Hickey was undertaking on the occasion a shed was erected on his property in 1997:[66]
[66]Transcript, pages 99 to 105, various paragraphs.
MR WOULFE: Do you agree that you drove your car from Rockingham to Hamilton Hill to collect a new single bed?
MR HICKEY: Possibly.
MR WOULFE: Well, I suggest that you drove about 67 kilometres to do so?
MR HICKEY: Yes, that may be the case.
MR WOULFE: Is it the case that you drove that distance despite having told Australia Post that you couldn’t drive that far before?
MR HICKEY: No, that’s not correct.
…
MR WOULFE: You were directing and/or assisting two males undertake that task, weren’t you?
MR HICKEY: No, there was three.
MR WOULFE: You were actively involved in setting up a petrol driven concrete mixer?
MR HICKEY: Yes.
MR WOULFE: And you were assisting with the mixing of concrete, weren’t you?
MR HICKEY: No, I was assisting - the mixer was on a cradle; it pivots from the axles. On a couple of occasions I do recall that I tilted the bowl of the mixer, which is more about preventing yourself from being lifted up, rather than lifting the bowl.
…
MR WOULFE: You took hold of both handles and raised the mixer to chest height, didn’t you?
MR HICKEY: The way - the way - there’s a single handle. The mixer is built on a frame that is basically a V shape. At the bottom of the V, which is the lowest point, or lowest centre of gravity, is the axle with the two wheels. They’re suspended upon a cradle that’s purposely built to enable the mixer to pivot; the axles pivot within two Vs on the frame. The whole idea is that it prevents you from having to lift a great deal.
MR WOULFE: Well, in terms of using the mixer you poured concrete from the mixer into a wheelbarrow, didn’t you?
MR HICKEY: Yes.
MR WOULFE: And you walked about the site a few times, didn’t you?
MR HICKEY: Yes, I imagine so.
…
MR WOULFE: … you’d accept that when you picked something up from the ground you first squatted down and bent forward to do so?
MR HICKEY: No, I don’t recall.
MR WOULFE: The construction of the garage, or shed, went over a few days, didn’t it?
MR HICKEY: Yes, as I recall, it did.
MR WOULFE: Given the length of time that’s passed you’d accept it’s possible that you picked up the mixer to chest height, or lifted the mixer to chest height to pour concrete into the wheelbarrow?
MR HICKEY: No, because as I explained, the - the mixer was set upon a frame and the frame had the handles of the mixer almost already at chest height. There’s no need to bend down because it’s sitting upon a frame.
MR WOULFE: In any event you used the wheelbarrow full of concrete to pour ‑ ‑ ‑?
MR HICKEY: No, I didn’t use a wheelbarrow. I explained yesterday I didn’t use a wheelbarrow full of concrete. I used a - a wheelbarrow which contained concrete.
…
MR WOULFE: In any event you used the wheelbarrow full of concrete and emptied the concrete into holes dug for the support posts of the garage, didn’t you?
MR HICKEY: On a couple of occasions I recall demonstrating to a 14 year old boy how to use a wheelbarrow, and in that process I poured the contents of a wheelbarrow into a post hole for the erection of a shed.
MR WOULFE: Are you sure that didn’t happen on three occasions?
MR HICKEY: I couldn’t tell you.
MR WOULFE: I assume that you couldn’t tell me because of the passage of time, is that right; it’s just so long ago?
MR HICKEY: Pretty much, yes…
…
MR WOULFE: … Coming to your back condition you had an improvement of symptoms after six weeks following the incident of lifting a bag, didn’t you?
MR HICKEY: Yes.
…
MR WOULFE: The intense symptoms went away, didn’t they?
MR HICKEY: No, not entirely.
MR WOULFE: It’s the case that the symptoms haven’t radiated to your ankle since 1993, isn’t it?
MR HICKEY: No, that’s not the case at all.
MR WOULFE: It’s the case that they’ve been fluctuating, or getting better and worse over time, isn’t it?
MR HICKEY: Yes, well, it is - I would describe it as intermittent.
During re-examination by Mr McCabe:[67]
[67]Transcript, pages 112 to 114, various paragraphs.
MR McCABE: In addition to that it was just put to you by my learned friend that you described your symptoms of radiating symptoms were fluctuating; I think you used the word “intermittent”. How long have those intermittent symptoms - have you been suffering them from? For how long?
MR HICKEY: Since the 27th of the ninth 1973.
MR McCABE: ‘73?
MR HICKEY: (Indistinct) ‘93, sorry.
MR McCABE: So they were still continuing after this footage?
MR HICKEY: Yes. They still continue today.
MR McCABE: When you had those (indistinct) symptoms or when you had those (indistinct) symptoms, can you just take us through what you’re feeling, what the actual symptom is?
MR HICKEY: Well, I get - like I described yesterday at some stage, I get a shooting pain down my left leg. I have pain in my left buttock pretty well constantly, but every now and then, for whatever reason, I get a discharge down my left leg, into my left ankle, and it’s just excruciating. And from that, it seems as if the area of my lower back becomes more inflamed and I get more localised pain in that area.
…
MR McCABE: I can ask it another way. When you had these intermittent episodes, did you go to work?
MR HICKEY: No.
MR McCABE: Did you see - if you didn’t go to work, did you see your doctor?
MR HICKEY: Generally, no, because there had been so many problems with my pay that I had been instructed by the management of transport division that I’m to make a set appointment with my doctor every two weeks.
MR McCABE: Did you do that?
MR HICKEY: Yes.
MR McCABE: When you went and saw your doctor ‑ ‑ ‑?
MR HICKEY: I would obtain the forms that were in arrears for the previous two weeks.
MR McCABE: You said that you didn’t go to work. Why didn’t you go to work?
MR HICKEY: Because of back pain and the simple fact that if I didn’t rest and take it easy, it wouldn’t settle down.
MR McCABE: Did these events occur after the footage had been put to you?
MR HICKEY: After?
MR McCABE: The footage had been put to you?
MR HICKEY: Yes, absolutely, yes.
…
MR McCABE: Just at the bottom of that, the last sentence, Mr Schaeffer ‑ ‑ ‑?
MR HICKEY: On 106?
MR McCABE: Yes. He provides an estimate ‑ ‑ ‑? ... Yes, just the last sentence there.[68] I believe it’s ‑ ‑ ‑?
MR HICKEY: Yes.
MR McCABE: Do you agree with that?
MR HICKEY: No.
[68]Referring to the sentence at R2, T46, at the bottom of page 106, which stated Mr Schaeffer’s belief that it has been estimated that the action of raising the handles of a wheelbarrow heavily laden with cement is equivalent to lifting a 90 kilogram weight.
Mr Barrie Slinger, Orthopaedic Surgeon
At the hearing, Mr Slinger provided oral evidence to the Tribunal. The Tribunal had before it the following reports and related documents:
·
medical report dated 16 January 2009,[69] with briefing letter from the APC dated
23 December 2008;[70]
·curriculum vitae undated and received by the Tribunal on 8 December 2016;[71]
·medical report dated 31 October 2016, with briefing letter from W G McNally Jones Staff dated 8 September 2016;[72]
·supplementary medical report dated 7 June 2017, with briefing letter from W G McNally Jones Staff dated 29 May 2017;[73]
[69]R2, T74.
[70]R2, T73.
[71]A3.
[72]A4.
[73]A5.
At the hearing, Mr McCabe in evidence-in-chief first took Mr Slinger to his opinion given on 16 January 2009, that the condition Mr Hickey suffered from as at that date, in relation to his reported incident on 27 September 1993, was an acute disc herniation at the lumbosacral or L5/S1 level.[74]
[74]R2, T74, page 173.
When asked by Mr McCabe to explain what a disc herniation is, Mr Slinger explained that if a disc bulge or herniation occurs, the space that the disc then goes into is occupied by a nerve. Mr Slinger said that if the disc presses on a nerve, a person promptly (being within a day, or a few days) develops acute sciatica pain down the leg. Mr Slinger said that commonly the bulge and disc shrink, the pressure is removed from the nerve and then the pain and other symptoms usually improve. Mr Slinger further said that sometimes there is no improvement in symptoms, with the ongoing symptoms being caused by the damaged disc and the patient may need an operation, which they may elect to have or not to have. Mr Slinger said a disc disorder commonly produces stress and strains on the back and that produces degeneration.[75]
[75]Transcript, pages 118 at [30]–[45], 119 at [10]–[15], [30]–[40] and [45].
When asked by Mr McCabe, Mr Slinger confirmed his opinions in his report that Mr Hickey’s disc herniation was as a result of the incident on 27 September 1993,[76] and that it was most unlikely Mr Hickey would require surgery in the future.[77]
[76]R2, T74 page 173, in answer to question 2.
[77]R2, T74, page 174, in answer to question 8.
Turning to Mr Slinger’s opinion in his report dated 31 October 2016 that Mr Hickey’s disability as at that date “relates in the major part to the original injury in 1993”,[78] Mr Slinger elaborated:[79]
MR SLINGER: It’s incontrovertible that having had a significant disc injury, such as a disc prolapse which is identified clinically, made logically, it’s incontrovertible that this has the potential of progressive, degenerative change. That is incontrovertible. Whether that change is minor or severe, whether it causes symptoms or not, varies from patient to patient. But there is no doubt that if you have a significant disc injury, whether you have an operation or not, your chances of having problems in the future are increased significantly.
MR McCABE: And in Mr Hickey’s case, in your opinion?
MR SLINGER: I believe if chronic symptoms do relate to that injury, then he’s got degenerative disc disease, which has been accelerated, produced or caused by that original disc injury.
[78]A4, page 3 of report.
[79]Transcript, page 121 at [25]–[35].
During cross-examination, Mr Woulfe put to Mr Slinger the following extract from Mr Frank Bell’s (orthopaedic surgeon) report dated 9 January 1997:[80]
It is generally accepted that herniation of a normal disc does not occur except as a result of gross violence such as a heavy fall onto the buttocks or being flung from a motor car, a situation which scarcely applies to Mr Hickey’s circumstances. On the other hand, there is not a great deal of loss of signal of either the L4‑5 or L5‑S1 discs in the MRI scan of March 1996.
[80]R3, ST9, page 24. See Transcript, pages 122 at [40]–[45] and 123 at [5].
When asked by Mr Woulfe, Mr Slinger said he did not agree with the proposition in the first sentence of the extract at paragraph [84] above nor did he know what was meant by or what the relevance was of the second sentence of this extract.[81] Mr Slinger said however, that at that stage, being three years after the date of the incident, it was correct to say you would not expect to see any nerve root compromise on the x-rays.[82]
[81]Transcript, page 123 at [5]–[10].
[82]Transcript, page 123 at [25].
Mr Woulfe then took Mr Hickey to the medical report by Mr Schaeffer dated 4 October 1996,[83] in particular:[84]
I suspect that he has disc degeneration at the L5/S1 level associated with a relatively small degree of laterally placed protrusion of the disc which from time to time results in irritation of the left S1 nerve root. However, it is my impression that he does not suffer from major nerve root compression.
Disc degeneration of this type is a constitutional phenomenon. The condition is not caused by trauma but it is true to say that trauma can have the effect of exacerbating the condition and the action of reaching forward and unhooking and lifting the mail bag on 27 September 1993 would be consistent with an aggravating circumstance.
I regard Mr Hickey’s current condition as being substantially the result of a naturally occurring process and the work incident is consistent with an aggravation of somewhat lesser aetiological importance. …
[83]R2, T42, pages 95 to 101.
[84]R2, T42, page 99.
When asked a series of questions in relation to the extract at paragraph [86] above, Mr Slinger stated:
(a)he has no idea what Mr Schaeffer meant by “constitutional phenomenon”;[85]
(b)he did not agree at all with Mr Schaeffer’s proposition that Mr Hickey’s condition is not caused by a trauma;[86]
(c)that Mr Hickey’s action of reaching forward and unhooking and lifting the mail bag on 27 September 1993 is something that a person would commonly expect to see cause an L5/S1 disc protrusion;
(d)that protrusion to any of the discs can occur at any stage and without any “provocating” incident,[87] whether that be while sitting still, being in bed, getting out of bed, and can also occur with a trauma injury like that experienced by Mr Hickey;[88]
(e)people are born with normal discs, which wear a little with age, predispose people to a disc bulge and the outer covering of the disc develops little tears. Sometimes for injury, for an obvious reason, that bulge in question goes through the tear. All people have tears but not disc nerves;[89] and
(f)Mr Hickey’s condition is not a naturally occurring process at all.[90]
[85]Transcript, page 124 at [5].
[86]Transcript, page 124 at [5].
[87]Transcript, page 125 at [5].
[88]Transcript, page 124 at [15]–[25]
[89]Transcript, page 124 at [25]–[30].
[90]Transcript, page 124 at [35].
Mr Slinger elaborated on his differing view at paragraph [87(d)] above as follows:[91]
We don’t all get disc bulges or prolapses, we don’t all get back ache, so what’s this naturally occurring process? If he’s talking about what I have said, which he isn’t - he hasn’t described that pathology - that’s entirely different. As we go through life most of our joints, including the (indistinct), become a little bit worn. If that’s what he’s talking about, well all right, it’s a naturally occurring process. But it’s not a naturally occurring process to have a disc prolapse or herniation.
[91]Transcript, page 124 at [35]–[45].
Mr Slinger disagreed with Mr Woulfe’s proposition that it was purely a coincidence that Mr Hickey’s prolapse has occurred concurrently but not as a result of the lifting incident[92] and added:[93]
He had a specific injury, which I’ve said would have increased his intra-abdominal pressure and would have pushed out the disc. That’s QED; it was cause and effect, as far as I’m concerned, and as far as most people say when there is a specific injury and symptoms occurring immediately afterwards.
[92]Transcript, page 125 at [25].
[93]Transcript, page 125 at [25]–[30].
Mr Slinger then disagreed with Mr Woulfe’s proposition that a temporal association does not necessarily imply causality[94] but agreed that it is not essential for an injury to be involved in the degenerative of low back symptoms; that is, all people develop degeneration of the back but not all people develop symptoms.[95]
[94]Transcript, page 126 at [15].
[95]Transcript, page 126 at [20].
Turning to Mr Alexeeff’s list of diagnoses of Mr Hickey in his report dated 21 March 2014,[96] Mr Slinger said:
(a)he agreed with Mr Alexeeff’s first numbered diagnosis of Mr Hickey, being a “[p]revious L5/S1 disc protrusion with probable radiculopathy”[97] and the third numbered diagnosis, being “[m]ulti-level degenerative lumbar spondylopathy”;[98] and
(b)he did not know what Mr Alexeeff meant by his second numbered diagnosis “mechanical back pain”, but presumed that it meant a “degeneration of wear and tear”. Mr Slinger said that medical professionals use the phrase “mechanical back pain”, which in his view means “back ache”, when they do not know what is causing the pain,[99] but it does not mean back pain for which no cause has been identified.[100] Mr Slinger said that it is a “bad phrase” that does not mean anything.[101]
[96]R2, T100, page 247.
[97]Transcript, page 126 at [35].
[98]Transcript, page 127 at [25]–[30]. Mr Slinger considered he was not qualified to comment on Mr Alexeeff’s fourth and final diagnosis in his report dated 21 March 2014, being “[a]ssociated non musculo-skeletal co-morbidity (? depression)”. See R2, T100 at page 247 and transcript, pages 127 at [35]-[45] and 128 at [5].
[99]Transcript, page 126 at [40]–[45].
[100]Transcript, page 127 at [5].
[101]Transcript, page 127 at [5].
When asked by Mr Woulfe, Mr Slinger said that it is inconceivable that Mr Hickey could be at his current level of symptomatology and disability if he had not had the incident in 1993, notwithstanding his present weight and his smoking history. Mr Slinger added there is no evidence between smoking and degenerative disc disease and Mr Hickey’s weight is immaterial to so-called comorbidity.[102]
[102]Transcript, page 128 at [5]–[15].
On further questioning by Mr Woulfe in relation to Mr Alexeeff’s report dated 21 March 2014, Mr Slinger stated:
(a)that he agrees with Mr Alexeeff’s finding of there being no evidence of radicular involvement regarding Mr Hickey’s condition;[103] and
(b)that he agrees with Mr Alexeeff’s views that Mr Hickey’s acute symptoms have settled with time[104] but added his opinion that Mr Hickey had chronic symptoms as a result of the injury.[105]
[103]Transcript, page 128 at [20]. See R2, T100, page 248, in answer to question 2.
[104]Transcript, page 129 at [25]–[30]. See R2, T100, pages 249 and 250, in answer to question 4.
[105]Transcript, page 129 at [30].
When asked, Mr Slinger said that Mr Hickey has some work capacity and saw no reason why he couldn’t continue his duties or similar duties to those he was occupying with the APC.[106]
[106]Transcript, page 130 at [30]–[40].
As to Mr Alexeeff’s opinion that Mr Hickey’s condition of “mechanical low back pain” has resolved,[107] Mr Slinger said:[108]
I agree that there is no ongoing radiculopathy. I don’t necessarily relate this comorbidity to his symptoms. He does have multilevel degenerative changes, I agree with that. I don’t know what he means by mechanical low back pain. If he means that that back pain’s common in society as the result of degeneration, I agree with him.
[107]R2, T100, page 253, in answer to question 13.
[108]Transcript, page 131 at [5]–[10].
Turning to Mr Phillips’ report dated 28 October 2016,[109] Mr Slinger said:[110]
(a)that he agreed with Mr Phillips’ proposition that Mr Hickey’s statement that he improved over a period of about six weeks would be consistent with average expected timeframes, but that agreement was in the context of acute disc prolapse;[111] and
(b)similarly to Mr Phillips’ finding,[112] when Mr Slinger saw Mr Hickey, neurological examination did not identify any definite deficit.
[109]R6.
[110]Transcript, pages 131 to 133, various paragraphs.
[111]Referring to R6, page 2 of report. Mr Phillips’ diagnosis of Mr Hickey’s condition that arose from the incident on 27 September 1993 was an acute strain, with possible minor irritation of the left S1 nerve root (R6, page 7 of report). Mr Phillips was of the view that a person cannot have both an acute strain and minor irritation of the S1 nerve root and said that if there is an irritation of the S1 nerve, it is an acute disc prolapse (transcript, page 133 at [20].
[112]R6, page 5 of report.
Mr Woulfe took Mr Slinger to the following further extract from Mr Phillips’ report dated 28 October 2016 and asked Mr Slinger whether he agreed with the conclusion that was reached:[113]
I was able to view an X-ray of 18 March 2014 which demonstrated remarkably well-preserved disc spaces particularly at L5/S1.
The significance of this is that there has not been advanced degeneration as might have been expected following failure of the L5/S1 disc and ongoing complaint, particularly noting Mr Hickey’s weight.
(Original emphasis.)
[113]Transcript, page 132 at [35]-[45].
When asked by Mr Woulfe, Mr Hickey said that the contents of that paragraph from Mr Ryan’s report (extracted at paragraph [53] of Annexure A above) was what he had told Mr Ryan was concerning him, and that he did not report to Mr Ryan when he saw him in 2011 that he was depressed because of back pain.[431]
[431]Transcript, page 72 [40].
Mr Woulfe took Mr Hickey to the signature block of an email Mr Hickey had sent to Kylie Jones, APC Claims Manager, on 30 January 2013 in connection with a claim for reimbursement for lawn mowing, which states, in part:[432]
[432]R2, T90, page 204.
Kim Hickey
ex-Vehicle Accident Claims
(Original emphasis.)
When asked by Mr Woulfe, Mr Hickey said that his changing of the signature block (by the addition of “ex-”) was his innovation, because he was “pretty annoyed” at the outsourcing of his role.[433] Mr Hickey said he did not have a job and that changing his signature block was a small way to let APC know that he was not “overly happy about the fact that [he] was told ‘take it or we’ll outsource your job’” and APC had nevertheless outsourced his role.[434] Mr Hickey said that that was certainly part of his complaint against the APC.
[433]Transcript, page 73 [10]–[15].
[434]Transcript, page 73 [20].
Mr Woulfe took Mr Hickey to paragraphs [23] and [24] of Mr Hickey’s witness statement (A1), which read as follows:
23.I understand that around this time Deborah [sic] Payne approached Manager Brett Bailey in the Transport Division about me returning to work. I was told by Deborah [sic] Payne that Brett Bailey had stated that, if I have a back problem, I was of no further use to the WA Transport Division. I was very disappointed and felt completely let down by that remark.
24.On 13 April 1994 I returned to see Dr Gary Garside. Notwithstanding the doctor’s previous recommendation, Australia Post had been unable to offer me suitable duties and in fact the only suitable work discussed was night sorting in Fremantle from midnight to 3.00am. This would have involved me driving for half an hour to Fremantle and back in the middle of the night. The doctor also noted that I had recently been prescribed with the antidepressant Prothiadine shortly before my consultation with him. At the time I was swimming 3 times per week for 45 to 60 minutes. The doctor noted my ongoing symptoms and provided a report for Australia Post. …
When asked by Mr Woulfe, Mr Hickey said that in relation to paragraph [23] of his statement (extracted at paragraph [57] of Annexure A above), Ms Payne stated to him in a phone conversation that Brett Bailey had stated that, if Mr Hickey had a back problem, then he was of no further use to the WA Transport Division.[435]
[435]Transcript, page 74 [30].
In relation to paragraph [24] of his statement (extracted at paragraph [57] of Annexure A above), Mr Hickey agreed with Mr Woulfe’s propositions that there was difficulty sourcing Mr Hickey work, that this was because of Mr Hickey’s work restrictions and that Mr Hickey had taken issue with Mr Patrick’s assessment of his role, notwithstanding the fact that Mr Hickey was informed of Mr Patrick’s professional experience as a HR Officer.[436]
[436]Transcript, page 74–75.
As to the process that was adopted in relation to Mr Hickey’s promotion to the level 3 role,[437] Mr Hickey said that he had taken the time to provide Jim Rolt with an email (in support of his wanting a promotion) containing the information that Mr Rolt had requested of him, being information for HR about the role Mr Hickey undertook for the WA Transport Division.[438]
Mr Hickey said that he had assumed that someone would approach him for verification of what he was saying, given the statements he made in the email in support of a promotion.[439] Mr Hickey said that he assumed someone would come and look at the files he had in his possession and would at least ask him to explain some of the “complexities”.[437]The Tribunal notes that in using the word “promotion”, it is not conceding that Mr Hickey was working at a lower level until his role was formalised as an AO3 level role in November 2007.
[438]Transcript, page 76.
[439]Transcript, page 76 [10].
Mr Hickey said that he was not putting his best foot forward (in terms of giving the reasons why he should be promoted). He further stated that if he had known at the time that the email to Jim Rolt would be his one and only opportunity to give reasons as to why he should be promoted, then he “probably would have taken a great deal more time in putting it together”.[440]
[440]Transcript, page 76 [20].
When asked, Mr Hickey said that he knew that the email was important at the time and that he was unaware of any policy or requirement from APC that meant he could have a “second bite of the cherry” in the context of applying for a promotion (or in the context of Mr Hickey putting in his email to Mr Rolt).[441]
[441]Transcript, page 77 [15]–[20].
Mr Woulfe then took Mr Hickey to the email from Bob Patrick to Bill McDonald, Jim Rolt and Donna Vecchio dated 29 October 2007 regarding Mr Hickey.[442] Mr Woulfe put it to Mr Hickey that from that email, Mr Patrick did not recommend Mr Hickey’s promotion because “the level of work is line ball and [Mr Patrick’s] assessment at the A3 level may have been on the generous side”[443] and that Mr Hickey was not quite performing at the level of an AO3.[444] Mr Hickey said that was why the outcome was unfair, namely that Mr Hickey “… was still being paid as a truck driver but [he] hadn’t had a set of keys in [his] hand for more than 10 years”.[445]
[442]Located within Attachment D of the Statement of Jennifer Porter (R15).
[443]R15, attachment D.
[444]Transcript, page 78 [10].
[445]Transcript, page 78 [15].
When asked by Mr Woulfe, Mr Hickey said that he was aware that Mr Patrick was of the view that the APC “shouldn’t establish a formal position for the work that [Mr Hickey was] doing”,[446] but that he had asked for and been a denied a copy of the email of 29 October 2007.[447]
[446]As stated in the email dated 29 October 2007, located within Attachment D of the Statement of Jennifer Porter (R15).
[447]Transcript, page 78 [40].
As to Mr Patrick’s view stated in the email dated 29 October 2007[448] that “the level of work is line ball” and that “[Mr Patrick’s] assessment at the A3 level may have been on the generous side”, Mr Hickey said that he could understand that, given the information with which Mr Patrick had to work with and the partner that he had (being Jim Rolt), which was the same person who Mr Hickey had the conflict with.[449] Mr Hickey also said that Jim Rolt had worked with Mr Patrick, as instructed by Debra Payne, on making the assessment for that job.
[448]Located within Attachment D of the Statement of Jennifer Porter (R15).
[449]Transcript, page 78 [45].
Mr Hickey said that he appealed the promotion not being recommended in 2007 in 2012 “when they had gone”,[450] which had happened “as soon as [Ahmed Fahour] came in as CEO”.[451] Mr Hickey said that “they” were the reason he was having problems, “because they were all quite happy to stick together with their collusion to make sure that [he] paid for having gone over their head[s]”.[452] Mr Hickey said that with those personnel then removed from the organisation, his position underwent a “pseudo review” and “got written down as low as they thought they could get away with it”.[453] As to whether these events tied back to Mr Hickey’s concerns about not being valued or recognised, Mr Hickey said, “I guess it does … but maybe for a good reason”.[454]
[450]“They” being Mike Owen, Debra Payne, Bob Patrick and Jim Rolt.
[451]Transcript, page 79 [15].
[452]Transcript, page 79 [20].
[453]Transcript, page 79 at [25].
[454]Transcript, page 79 [30].
With regard to why Mr Hickey did not take the outcome of the 2012 “pseudo review” (referred to in paragraph [66] of Annexure A above) any further, Mr Hickey said that his position was already being outsourced, he was already struggling “enough” and, he had been unfairly categorised at the AO3 level which did not reflect the work and skills that he brought to the APC.[455] Mr Hickey further clarified that his job was gone, he was doing “absolutely nothing”, and “… to make it easier for themselves to try and slot [him] in somewhere, they didn’t want to make [him] an AO4 because that would have made it that much more difficult to find [him] a position within the corporation”.[456]
[455]Transcript, page 79–80.
[456]Transcript, page 80 [10].
Mr Hickey gave evidence to the effect that notwithstanding Mr Patrick’s review in 2007, he was given the promotion to the AO3 level effective 31 August 2007, and not any sooner “because [APC] had failed to recognise [his] contributions previous” in 2001 or 2002 “when [he] had actually started doing the role at a much more complex level”.[457] When Mr Woulfe put it to Mr Hickey that the promotion was actually given to provide Mr Hickey with the same superannuation benefit if he were to separate within a certain timeframe, Mr Hickey said “I guess you could look at it that way”. Mr Hickey also said that he should have been paid at the AO3 level before his actual promotion came into effect “because [he] was doing the same work”. When asked, Mr Hickey said that he did not accept that it would be inappropriate for the APC to pay him at the AO3 rate at a time when he was not employed at an AO3 level.[458]
[457]Transcript, page 81 [20].
[458]Transcript, page 81 [45].
Mr Hickey said that, having not taken any industrial action earlier, he saw and sought advice from Mr Watkins from the union in 2007.[459] Mr Hickey further said that he did not at that time file an action against the APC. Mr Hickey said that Ms Payne had put to him that if he pushed the matter any further he would have his job outsourced, or words to that effect.[460]
[459]Transcript, page 82 [40]–[45].
[460]Transcript, page 84 [40].
When asked, Mr Hickey said that in his time at the Rockingham Delivery Centre he regularly spoke to staff members about non-work related matters and there was a directive issued to him not to talk to people unless it was regarding work related matters.[461] Mr Hickey said that the directive was essentially a directive “not to talk to [him] full stop” because he worked for a different department so there were no work related matters. Mr Hickey said that following that directive, he would still respond to those that said “hello” to him, so as to not be rude.[462] Mr Hickey also said that he understood there was a directive given at a team leaders’ meeting that “staff are not to talk to Kim Hickey anymore”.
[461]Transcript, page 85 [5].
[462]Transcript, page 85 [25].
When asked about the “knock-for-knock agreement role”, Mr Hickey said that he was required to maintain a data base of the motor accident claims, that it was part of his rehabilitation program that he had those duties provided, that the role initially was not a complete job and it was essentially part of another employee’s role.[463] Mr Hickey then further said that the knock for knock agreement role then evolved over time, that maintaining the data base “absolutely” did not require fulltime work, that it was fair to say that he felt “harshly done by” when he was not promoted and, that in 2012 he remained of the view that he should be upgraded to an AO4 or an AO5 level.[464]
[463]Transcript, page 85 [40]–[45].
[464]Transcript, page 86 [5]–[10].
When asked by Mr Woulfe, Mr Hickey said that he does not have any legal qualifications and that he has not undertaken any tertiary study in terms of assessing motor accident claims.[465]
[465]Transcript, page 86 [15].
Mr Woulfe directed Mr Hickey to paragraph [95] of Mr Hickey’s witness statement,[466] in which he refers to the email dated 27 November 2012 from Jennifer Porter with attached letter from Ms Porter as follows:
[466]A1.
95.On 27 November 2012 I received an email from Jennifer Porter with an attached letter in relation to our earlier meeting. Jennifer confirmed that she had not reassessed the skills I bought to my position. Rather, she had assessed the earlier assessment carried out by Bob Patrick and Jim Rolt and was of the view that all was in order with that assessment and she would not consider that matter any further. She went on to confirm that I have been advised that due to outsourcing of the collision management function, my position is no longer required. On 29 November 2012 I responded to express my disappointment and to outline some points of contention.
Mr Woulfe then turned to the letter from Ms Porter dated 27 November 2012.[467] When asked, Mr Hickey said that this letter is one of the issues that he has with the APC in terms of not receiving, in his view, adequate reward or recognition.[468] Mr Hickey said that in
Ms Porter’s letter she sets forth her reasons for not reconsidering his role. He also said he was very disappointed because Ms Porter had agreed to assess the role, in the sense of assessing the work Mr Hickey was doing for APC and she did not do that.[469] Mr Hickey said that rather, Ms Porter left the meeting with Mr Hickey, on 5 November 2012 and assessed the work that Bob Patrick and Jim Rolt had done when they were meant to be assessing Mr Hickey’s position.[467]Attached to Jennifer Porter’s email dated 27 November 2012, both of which are attached to Mr Hickey’s statement (A1).
[468]Transcript, page 86 [40].
[469]Transcript, page 86 [45].
In response to Mr Woulfe’s proposition that Mr Hickey did not take any external action to advance his issues with the original assessment of his role by Mr Patrick and Mr Rolt, Mr Hickey said that the bottom line was that there was “… nowhere to appeal for this. They had made it extremely clear to me by this stage that I wasn’t going to get anywhere”.[470]
[470]Transcript, page 87 [30].
Mr Hickey said that in any event, he sent an email on 29 November 2012 taking issue with the points set forth in Ms Porter’s letter dated 27 November 2012.[471] Mr Hickey said this email of 29 November 2012 provoked a response from Ms Porter by way of a letter dated 12 December 2012.[472]
[471]Attached to Mr Hickey’s statement (A1).
[472]Also attached to Mr Hickey’s statement (A1).
Mr Hickey said that in Ms Porter’s letter dated 12 December 2012, she provides her reasons (which Mr Hickey was unhappy with) as to why she was not going to undertake the entire role evaluation exercise again.[473]
[473]Transcript, page 88 [15].
In the context of the matters at paragraph [77] of Annexure A above, Mr Woulfe read the following extract from Ms Porter’s letter dated 12 December 2012:[474]
[474]Attached to Mr Hickey’s statement (A1).
I do not accept that Mr Patrick’s evaluation was predetermined or vindictive instructions were at play. There is no evidence to support that assertion.
In relation to the extract at paragraph [77] of Annexure A above, Mr Hickey said that there was such evidence, but Ms Porter “didn’t bother looking for it” and “just didn’t want to find it”.[475]
[475]Transcript, page 89 [25]–[35].
When asked by Mr Woulfe as to whether the motor accident role had already been outsourced in other states prior to his particular role being outsourced, Mr Hickey said “no” and then added “in South Australia it had [been outsourced]. In New South Wales … it certainly had been outsourced there and that was the situation before 1998 … [i]n Queensland, it was in-house and in Victoria, it was still-in house” and “Tasmania also might have been in-house, but I can’t confirm that”.[476] Mr Hickey said that to his knowledge, the motor accident role is not in-house anywhere else at the time of the hearing, “there was a national change” and that his position became surplus to requirements because of the outsourcing.[477]
[476]Transcript, page 90 at [30].
[477]Transcript, page 90 [30]–[35].
When asked whether he was aware of any policy or requirement that requires the APC to look at a broader range of files that he was working on than they did, Mr Hickey said that he would imagine that any assessment of his role would have an expectation with it, that they would look at a clear and fair representation of the work that is performed in a role.[478]
[478]Transcript, page 90 [40].
In the context of Mr Hickey not having applied for other positions, Mr Hickey said that he was not aware that other APC employees with an inability to travel have been accommodated on promotion.[479] Mr Hickey further said that he had raised with the APC that he wanted to be promoted but still stay working at the Rockingham Delivery Centre. He also said that notwithstanding that, he did not apply for any other positions because “… there was no point in taking that step because even the development review scheme that every employee is supposed to participate in every six or 12 months …” had been denied to him.[480] Mr Hickey said that he was last issued a uniform about six years before he finished at APC and that he was supposed to have a uniform issued every six months.
[479]Transcript, page 91 [5].
[480]Transcript, page 91 [10].
Mr Hickey said that there was no promotion that he could apply for. He also said that when he looked at job circulars that came out, there was always a requirement for an AO3 or an AO4 to travel and he was not in a position to travel. Mr Hickey said that he had not looked for any work since ceasing work with the APC.[481]
[481]Transcript, page 91 [20]–[25].
Mr Hickey said that he had raised the issue of the lights that were turning on and off, “mostly off, after midday, or thereabouts”.[482] Mr Woulfe suggested to Mr Hickey that although the situation had not changed, no one had said to Mr Hickey that the APC was not prepared to spend any more money, as Mr Hickey asserted. Mr Hickey disagreed with that suggestion and said that that was “exactly what Colin Bailey had said” to him on the day when Mr Hickey had put it to Mr Bailey, as a number of weeks had gone by and nothing had happened. Mr Hickey said that he had said to Mr Bailey, “Hey Col, the lights mate” and that Mr Bailey had said, “[l]ook, I went to an area managers meeting. I put it to them. They’re just not prepared to spend the money mate”.[483] Mr Hickey said that he had accepted
Mr Bailey’s words because he was a friend. As to whether Mr Bailey said anything to the effect of the reason for the APC not spending more money being because it was part of the green initiative, Mr Hickey said that it might have been a green initiative, but it was one that was carried out without any consideration for his wellbeing.[484][482]Transcript, page 91 [30].
[483]Transcript, page 91 at [35].
[484]Transcript, page 91 [40]–[45].
When Mr Woulfe asked Mr Hickey whether he was then offered duties of cleaning graffiti off pillar boxes, Mr Hickey said that it was probably not right to say it that way and rather that he identified the duties for himself in front of Glen Resuggan.[485] Mr Hickey said that he had made this suggestion so he could get out the office, as the office was always pitch black, that he was having a great deal of problems with his depression and anxiety and he needed some head space and just to get out of the place. Mr Hickey said that after he had, at a meeting, made the APC aware that he had depression, “all of a sudden they showed some interest and that is when they put together … the duties of doing the pillar boxes”.[486] Mr Hickey said that the idea was that he would use the vehicle that is based at the Rockingham Delivery Centre for the manager’s use in order to carry out the pillar box duties.
[485]Transcript, page 92 [10]–[15].
[486]Transcript, page 92 [20].
Mr Hickey said he then took a six-week leave break just prior to Christmas, having told the APC that he needed some head space because he was not “handling things at all well”.[487] Mr Hickey said he got back after Christmas and “[t]here was still nothing to do. There was nothing going on”.[488] Mr Hickey said that that went on for a couple of weeks and when he rang and asked what was going on, “all of a sudden, they sprang into action”. Mr Hickey said that there was an issue that the vehicle was for the use of the manager at the delivery centre and it was not that often that he had access to the vehicle. He further said that normally the vehicle was needed for operational matters and he understood that. Mr Hickey also said that he did do the graffiti removal work, but not as frequently as he would have liked.[489]
[487]Transcript, page 92 [25].
[488]Transcript, page 92 [25].
[489]Transcript, page 92 [35].
When asked, Mr Hickey said that he was not interested in commencing a gym or exercise program towards the end of his time with the APC, that he applied for leave at the end and that leave was approved.[490] Mr Hickey said that by that time, he was very unhappy with the APC, that he had anxiety and severe depression and he had stated to Ms Shah that essentially he wanted to be left alone. Mr Hickey said that by that time, he did not want anyone’s advice on what they thought he would eat or how many laps of the pool they thought he should do.[491]
[490]Transcript, page 92 [40]–[45].
[491]Transcript, page 93 [5]–[10].
Mr Hickey said that by that time, he had asked Ms Shah about another set of work shoes as the ones he had been wearing had completely worn away on the right hand side. Mr Hickey said that Ms Shah was not forthcoming with the shoes.[492] When asked by Mr Woulfe, Mr Hickey said that he had put in a claim for reimbursement form for some new shoes under his workers’ compensation for the first initial pair of shoes and “it took probably about 18 months of wrangling to get them to come good with the shoes”.[493] Mr Hickey said that “[APC’s] job is not to facilitate you. Their job is to do everything they can to make you just leave”.[494] Mr Hickey said that he felt “quite persecuted” by the APC.
[492]Transcript, page 93 [15].
[493]Transcript, page 94 [5].
[494]Transcript, page 94 at [10].
When asked, Mr Hickey said that he told Ms Shah that he was capable enough to manage his own injury and that he spent most of his time making, repairing and playing the guitar. Mr Hickey said that he has not played guitar for four or five years because of his depression.[495]
[495]Transcript, page 94 [20].
During re-examination, Mr McCabe revisited Mr Hickey’s evidence given during cross-examination that he was promoted to the AO3 level with effect from 31 August 2007, and that it was put to him that he could have only been paid at that level if he had been given a promotion (refer to paragraph [68] of Annexure A above).
When asked by Mr McCabe, Mr Hickey said that when the promotion took effect on
31 August 2007, there was no significant change in his responsibilities and duties and that it was just the same job. Mr Hickey said that he had been performing the tasks involved in that role since 1 June 1998 and then, from his memory, the role and duties changed significantly in late 2000 or mid-2001 as a result of the collapse of HIH Insurance.Mr McCabe then revisited Mr Hickey’s evidence given during cross-examination that when the position was outsourced in 2012 he became a surplus employee (refer to paragraph [80] of Annexure A above) and that he had edited his signature block to read “ex-Vehicle Accident Claims” because he was annoyed that they had outsourced his job (refer to paragraphs [55] and [56] above). Mr Hickey said that when he was made a surplus employee, there was no change to his classification, no change to his rate of pay and no change to his working conditions.[496]
[496]Transcript, page 107 [15]–[20].
Mr McCabe directed Mr Hickey to the following paragraph of Mr Hickey’s email dated 14 February 2014:[497]
[497]R1, T8, page 31.
…
The result of that instruction from national management to state management [that Mr Hickey’s position should be reviewed] was to place me even further on the outer with many unreturned phone calls, emails and no-show at arranged meetings since to remind me that no matter how committed I am to my work, I am to be discriminated against and treated as a liability rather than an asset to Australia Post.
…
Referring to the extract at paragraph 93 above, Mr McCabe asked Mr Hickey for how long those unreturned phone calls, emails and arranged meetings went for after that point in time. Mr Hickey said that it just became pretty much a standard way of (the APC) dealing with him from then on.
Mr McCabe then turned to the following extracts from Mr Hickey’s email dated 14 February 2014:[498]
[498]R1, T8, page 31.
What happened to Australia Post’s commitment to that same process when they eventually outsourced my job with the only explanation being that it was done because they did not have one of me to operate in each state? …
After all the discussions I’ve had with various POST people since being thrown on the trash heap, I can’t believe that no one had managed to identified [sic] the depth of despair. …
Mr Hickey said that what he is referring to in that first sentence (extracted at paragraph [95] of Annexure A above) is that he had done everything that could possibly be asked, and more, to make himself of value once again because he “needed that in [his] life”.[499] Mr Hickey said that he retrained himself and “got off [his] own backside” without the help of anyone. He further said that he studied, in that he got a copy of the “Road Traffic Code” and went through it back to front so that he was polished on the determinations that he was making in line with the role. Mr Hickey said that he wanted to be good at what he had done, that he wanted that to be recognised and that he put in a lot of effort in making that happen. Mr Hickey said that what meant by the first sentence of the extract at paragraph [95] of Annexure A above is that in outsourcing his job, the APC had completely turned its back on its commitment to the rehabilitation process.[500]
[499]Transcript, page 109 [25]–[30].
[500]Transcript, page 109 [25]–[30].
Mr McCabe then asked Mr Hickey to explain in what way he was “thrown on the trash heap” by the APC (as referred in the second sentence extracted at paragraph [95] of Annexure A above). Mr Hickey said that he had committed his all to the role that they had given him. Mr Hickey said that without considering what lay ahead for him, the APC “just turned their back on [him]. Mr Hickey said that instead of working with him and because of the … fact [he had] gone over management’s head [and to the national level]”, there was more avenue for them in reopening his rehabilitation case and using the workers’ compensation system to manipulate him further, to use it as a tool against him.[501]
[501]Transcript, page 109 [45].
When asked what the APC actually did to Mr Hickey when it outsourced his job to “put him on the trash heap”, Mr Hickey said that the APC completely ignored all of the input that he had had through the previous years.[502] Mr Hickey said that the APC ignored him to the extent that he no longer had questions asked of him, he no longer had anything to do, there was nothing in his email inbox, the phone did not ring, the lights go out and people were not allowed to talk to him. Mr Hickey said that by then, the only time he had contact with anyone was if he called them, and that was usually asking for a progression on how things were going with Jennifer Porter, “whether she’s going to turn up at a meeting or whatever”.[503]
[502]Transcript, page 110 [30].
[503]Transcript, page 110 [40].
Mr McCabe returned to Mr Hickey’s email dated 14 February 2014,[504] and asked Mr Hickey whether, at this time, being the time when the review process in 2006 and 2007 was going on, he was feeling depressed. Mr Hickey answered “no”.[505]
[504]R1, T8, page 30.
[505]Transcript, page 111 [5].
Mr McCabe next returned to Dr Rasool’s surgery consultation notes of 17 September 2013 (extracted at paragraph [40] of Annexure A above), in particular the reference to Dr Rasool’s note “… [f]eels victamised [sic] at work”. When asked what he told Dr Rasool on that date about having felt victimised at work, Mr Hickey said he felt victimised because there was an issue with his pay at one stage and it was a situation where he had sent in leave forms and medical certificates as required. Mr Hickey said that there is a 25 per cent disparity between when a person is paid sick leave and when they are paid compensation leave.[506]
[506]Transcript, page 111 [45].
Mr Hickey said that what had taken place, unbeknown to him, was that he had sent in all of his leave forms, but no one had processed them for about 17 weeks, and the APC had instead been paying him sick pay, which meant that he was getting more money than he should have been.[507] Mr Hickey said that he had no idea that that was the case because his pay was never the same and it was always up and down because of the time he would have off from work with his back injury. Mr Hickey said that once those forms were processed 17 weeks later, “all in one” go, it left him with a complete pay of around $70.[508]
[507]Transcript, page 112 [5]–[10].
[508]Transcript, page 112 [5]–[10].
10
0