Hull and Australian Postal Corporation
[2013] AATA 635
•5 September 2013
CATCHWORDS – COMPENSATION – injury – cause - aggravation - incapacity – decisions affirmed.
COMPENSATION - rehabilitation program – failing to undertake rehabilitation program – whether reasonable excuse – decision affirmed.
COMPENSATION - rehabilitation program – whether rehabilitation program should be varied to removed requirement that employee undertake it at former place of employment – decision affirmed.
COMPENSATION - reimbursement of reasonable travel expenses – whether entitled to reimbursement for travel expenses necessitated by employee’s moving residence to regional area and continuing to consult city-based surgeon.
PRACTICE AND PROCEDURE – stare decisis – whether bound by judgments of Federal Magistrates’ Court/Federal Circuit Court.
WORDS AND PHRASES – “have regard to”
DECISION AND REASONS FOR DECISION [2013] AATA 635
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2012/1945-1947
GENERAL ADMINISTRATIVE DIVISION ) 2013/0982-0983ReTROY HULL
Applicant
AndAUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Date: 5 September 2013
Place: MelbourneDecision:The Tribunal:
(1)affirms the reviewable decisions dated:
(a)16 April 2012 affirming a determination dated 1 March 2012 that the applicant commence a rehabilitation program dated 1 March 2012 (Application No. 2012/1946);
(b)27 April 2012 affirming a determination dated 5 March 2012 denying liability for payments of compensation in respect of incapacity from 5 March 2012 (Application No. 2012/1947);
(c)28 February 2013 affirming a determination dated 20 November 2012 denying liability to pay compensation for medical expenses for a revision left hip arthroscopy (Application No. 2013/0982);
(d)1 March 2013 affirming a determination dated 13 February 2013 that the applicant was no longer entitled to compensation for medical costs (Application No. 2013/0983); and
(2)in respect of the reviewable decision dated 15 March 2012 affirming a determination dated 3 January 2012:
(a)sets aside the reviewable decision; and
(b)substitutes for it a decision:
(i)setting aside the determination dated 3 January 2012; and
(ii)substituting a determination that the applicant is entitled to reimbursement of his travel expenses relating to return journeys each of 450 kms between Ararat and Melbourne in attending medical appointments with Mr Yap on six occasions between 25 May 2009 and 25 May 2011 and in attending hospital on 15 February 2011 for surgery performed by Mr Yap and a follow-up consultation on 31 May 2011 (Application No. 2012/1945).
_(sgd) S A Forgie_
Deputy President
Commission of the Safety, Rehabilitation and Compensation of Commonwealth Employees v Horan [1991] FCA 208
Commissioner of Police for New South Wales v Industrial Relations Commission of New South Wales & Raymond Sewell [2009] NSWCA 198
Commissioner of Taxation v Salenger (1988) 19 FCR 378
Commonwealth of Australia v Beattie (1981) 35 ALR 369
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Goodricke v Comcare [2011] FCA 694; (2011) 55 AAR 188
Kennedy v Administrative Appeals Tribunal [2008] FCAFC 124; (2008) 168 FCR 566; 249 ALR 87; 103 ALD 238; [2008] ATC 20-037; 73 ATR 276; 48 AAR 500
Kim v Minister for Immigration [2008] FCAFC 73; (2008) 167 FCR 578; 248 ALR 51
Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140; (2009) 112 ALD 1
McGuinness v Comcare Australia [2007] FMCA 1486
Military Rehabilitation and Compensation Commission v Pollanen [2005] FCA 957; (2005) 192 FLR 339
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; 178 ALR 421; 65 ALD 1
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; 66 ALR 299
Pascoe v Australian Postal Corporation [2004] FCAFC 4
PJ Ryan’s Hotels Pty Ltd v Townpub Pty Ltd [2004] QDC
R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45; 27 ALR 321
Re Horan and Comcare [1990] AATA 278; 21 ALD 621; 12 AAR 578
Re Wilkinson and Australian Postal Corporation [1998] AATA 849
Reg. v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322
Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389; (2001) 109 FCR 152; 194 ALR 599
Tarkine National Coalition Incorporated v Minister for Sustainability, Environment, Water, Population and Communities [2013] FCA 694
Tickner v Chapman [1995] FCA 1726; (1995) 57 FCR 451; 133 ALR 226; 89 LGERA 1
Townpub Pty Ltd v PJ Ryan’s Hotels Pty Ltd [2005] QCCTG
Valentine v Eid (1992) 27 NSWLR 615
Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492
Whittaker v Delmina Pty Ltd [1998] VSC 175Administrative Appeals Tribunal Act 1975, ss 37, 44, 44AA
Administrative Decisions (Judicial Review) Act 1977
Australian Postal Corporation Act 1989, ss 14, 15 and 16
Commonwealth of Australia Constitution Act, s 75(v)
Federal Circuit Court of Australia Act 1999, s 8
Federal Court of Australia Act 1976, s 5
Judiciary Act 1901, s 39B
Migration Act 1958, s 501
National Health Act 1953, s 40AA(7)(c)(i)
Police Act 1990 (NSW), ss 181D, 181F
Safety, Rehabilitation and Compensation Act 1988, ss 4, 5A, 5B, 14, 16, 19, 36, 37, 38, 39, 40, 41, 60, 62, 64, 108E
The ConstitutionThe Guidelines for Rehabilitation Authorities 2012
Blakiston’s Gould Medical Dictionary, 4th edition, 1979, McGraw Hill
Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
REASONS FOR DECISION
Mr Hull has been employed by the Australian Postal Corporation (APC) since 1999 when he joined it as a Night Sorter and later became a Postal Delivery Officer. As an employee of APC, Mr Hull’s entitlement to workers’ compensation is determined under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). APC is a Commonwealth authority[1] as defined in s 4(1) of the SRC Act and, as it is licensed under Part VIII of that legislation, it is also a “licensed authority”.[2] Subject to the terms of its licence, it must accept responsibility for paying compensation under the SRC Act accurately and quickly and determining claims for compensation. It is also responsible for taking all necessary action in respect of the subsequent management of those claims for liability for meeting any obligation that would be required of Comcare if it were the case that, in the particular circumstances, Comcare itself had responsibility for those functions under the SRC Act rather than the licensee, APC.[3]
[1] APC is “(a) a body corporate that is incorporated for a public purpose by a law of the Commonwealth, other than a body declared by the Minister, by legislative instrument, to be a body corporate to which this Act does not apply …”: SRC Act; s 4(1)
[2] SRC Act; s 4(1)
[3] SRC Act; ss 108E(a), (b) and (d)
2. Mr Hull has suffered an injury and APC has accepted liability under the SRC Act in respect of some aspects of his claims for compensation but has refused to accept it in relation to others. In broad terms, APC has refused to accept liability in respect of the travel expenses Mr Hull incurred in receiving medical treatment from his Orthopaedic Surgeon, Mr Yap. It has required Mr Hull to commence a rehabilitation program dated 1 March 2012 at the Western Delivery Centre at Sunshine (WDC) and has refused to pay him any further weekly payments for incapacity on and from 5 March 2012 when it required him to start that rehabilitation program. I have decided that Mr Hull is entitled to compensation in respect of the six journeys he made to consult Mr Yap but have otherwise affirmed each of Comcare’s decisions.
THE DECISIONS UNDER REVIEW
3. Mr Hull has lodged five applications in which he seeks review of one or other of three reviewable decisions made under the SRC Act. Subject to various qualifications found in Part II of that legislation and in so far as it relates to the issues raised in this case, s 14(1) provides that APC “… is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in … incapacity for work …”.[4] Liability to pay compensation in those circumstances is limited to compensation for the particular losses or expenses set out in the remaining provisions of Part II.
[4] Entitlement to compensation is not necessarily dependent on the injury’s resulting in incapacity for work: see SRC Act; s 16 at […] below.
4. Three of those provisions are relevant in this case. In summary, the first is s 16 which provides for compensation in respect of certain expenditure made by an employee in travelling to a place for the purpose of seeking medical treatment and remaining at that place. The second is s 19. It provides that APC is liable to pay compensation for each week that an employee is incapacitated and sets out a formula for assessing the maximum rate at which it is payable. Sections 16 and 19 are located in Part II of the SRC Act. That Part is headed “Compensation”. The third is found in Part III, which is headed “Rehabilitation”, and is s 37. It relates to the provision of rehabilitation programs by a rehabilitation authority who is, in this case, the principal officer of APC.[5] If, without reasonable excuse, an employee refuses or fails to undertake a rehabilitation program provided under s 37, his or her rights to compensation are suspended until he or she begins to undertake it.[6]
[5] SRC Act; s 4(1) “rehabilitation authority, in relation to an employee, means: … (ba) if the employee is employed by a licensed corporation-the principal officer of that corporation …”
[6] SRC Act; s 37(7)
5. The details of Mr Hull’s five applications and of the reviewable decisions of which he seeks review are:
Application No.
Provision claim made under SRC Act
Date of reviewable decision
Date of primary determination affirmed
Substance of reviewable decision
2012/1945
section 16
15 March 2012
3 January 2012
APC refused reimbursement of travel expenses relating to return journeys of 450 kms in attending medical appointments with Mr Yap on six occasions between 25 May 2009 and 25 May 2011 on basis not reasonable to travel distance for treatment.
2012/1946
section 37(1)
16 April 2012
1 March 2012
APC decided that Mr Hull shall commence a rehabilitation program dated 1 March 2012 on basis that he was capable of doing so.
2012/1947
section 19
27 April 2012
9 March 2012
APC denied liability for payments of compensation in respect of incapacity on and from 5 March 2012 when it deemed Mr Hull fit to work full time hours although with restricted duties and hours not worked assessed as non-compensable.
2013/0982
section 16
28 February 2013
20 November 2012
APC denied liability to pay compensation for medical costs for a further surgical procedure by Mr Yap being revision left hip arthroscopy.
2013/0983
sections 16 and 19
1 March 2013
13 February 2013
APC determined that Mr Hull was no longer entitled to compensation for medical costs and incapacity.
THE ISSUES
6. The review of these five decisions raises the following issues:
(1)Is APC liable to pay travel expenses associated with Mr Hull’s travelling to Melbourne for the purpose of consulting or being treated by his Orthopaedic Surgeon, Mr Yap?
(a)Sub-issues include:
(i)What is the relevance of Mr Hull’s living in Ararat and having moved there from Melbourne in 2010?
(ii)Was appropriate medical treatment available at a location closer to Ararat?
(2)Was there a valid rehabilitation program made on 1 March 2013 having regard to the provisions of s 37 of the SRC Act?
(3)Did Mr Hull have the capacity to carry out the hours and restricted duties described in the rehabilitation program made on 1 March 2012 and to be performed at the Western Delivery Centre on and from 2 March 2012?
(a)Sub-issues include:
(i)What is the relevance of Mr Hull’s living in Ararat?
BACKGROUND
7. There is no dispute between the parties regarding some of the facts forming the background to the decisions I must review. I will set them out in this section of my reasons together with references to the relevant documentary evidence.
Employment with APC
8. Mr Hull was employed by APC in 1999 when he began as a Night Sorter at the Newport Delivery Centre. At first, Mr Hulls was engaged on a part-time basis but he was later employed on a full-time basis.
9. After approximately two years, Mr Hull became a Postal Delivery Officer at WDC. His rostered hours in that position began at 6:00am and finished at 2:30pm but he regularly worked overtime. Mr Hull’s day began by sorting the mail. First, he sorted it into streets and then sorted it in order within each street. He used a V sorting frame at WDC.
10. Having completed the sorting indoors, Mr Hulls then delivered it. He rode a Honda CT110 motorbike (motorbike) on the delivery round. Mr Hulls would place about six bundles of sorted mail he had to deliver into bags attached to the motorbike. The remaining bundles he would send to location points where he would collect them during the round and deliver them. Other APC employees drove the mail to those location points.
11. Mr Hull’s round was in a suburban area without any units or high-rise buildings. It was a predetermined route that took him approximately three hours to complete. Generally, a round would be set up to accommodate the mail a Postal Delivery Officer was expected to deliver. There is no suggestion that Mr Hull’s round was set up any differently. He had approximately 1,350 delivery points. Mondays were the busiest days for deliveries. Deliveries tapered off on Tuesdays to Thursdays but they increased again on Fridays. January was the least busy month of the year. On most days, Postal Delivery Officers were required to do “divides” in addition to their usual round because a colleague had not attended for work. That entailed another 45 minutes or 500 or so delivery points on each round. Another 500 or so could be added if a “householder” delivery was required. That entailed the delivery of, for example, a brochure, a magazine or a large envelope to every household in the round and not simply those that were receiving mail that day.
12. Mr Hull is approximately 189cm tall. When he is sitting on the motorbike with his feet on the pedals, his knees would be bent and approximately level with his hips. On his delivery round, Mr Hull would ride his motorbike on the footpath with the letter boxes located on his left hand side. His normal practice after he had ridden up to each letterbox was to put his right foot on the brake and his left foot on the ground in order to keep his balance. He would get the mail from the pannier and use his left hand to place it in the letterbox. Letterboxes vary in their height from the ground as well as distance from the fence line. At times, they were obstructed by bushes.
Events leading to Mr Hull’s being injured
13. On 7 November 2008, Mr Hull developed a pain. He described it in an Incident Report he submitted as a “Muscular pain in lower half of back.”[7] It had happened while he was riding the motorbike and in the following way:
“Very heavy week of work. Holder’s, divids [sic], long hours, I first noticed it Friday (Let team leader know). Bending down to deliver to mail box’s [sic] through out the day just got sorer & tighter when finished back was very stiff. Monday delivery the same soreness & tightness.[8]
[7] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T documents); T11 at 14 and as to date see T documents; T21 at 30
[8] T documents; T11 at 14
14. Mr Hull consulted a medical practitioner on the following day. The medical practitioner gave him a certificate on 11 November 2008. Subject to his lifting no more than 2 kilogrammes, not riding a motorbike and alternating his sitting and standing, he certified Mr Hull fit for work for full-time duties. Physiotherapy was prescribed as treatment and the general practitioner said that Mr Hull was to perform only very light office and throw off duties.[9]
[9] T documents; T10 at 13
Mr Hull’s compensation claims and APC’s responses
15. Mr Hull was referred for rehabilitation on 24 November 2008 in respect of Lumbar Back/Hip Strain. He was assessed as capable of undertaking rehabilitation. Rehabilitation was provided under APC’s rehabilitation procedures pending its accepting liability under the SRC Act.
16. On 6 February 2009, APC set aside its earlier decision refusing Mr Hull’s claim for compensation. In its place, it substituted a decision accepting liability in respect of lower back strain – lumbo sacral, and left hip strain.[10] The details of the claims and APC’s determinations and referrals is set out in the Chronology at Attachment A to these reasons.
[10] T documents; T23 at 33-34
Treatment and rehabilitation
17. Mr Hull underwent various treatments and undertook various rehabilitation programs over the following years. Reference is made to them in the Chronology.
Mr Hull’s residences
18. I accept Mr Hull’s evidence that, when he started work at APC, he rented accommodation from a co-worker. That accommodation was located in Sunshine. He met the person who was to become his wife in Ararat, where she lived, in 2002. They started dating in that year and she then moved from Ararat to Sunshine sometime in 2002. Mrs Hull worked in Melbourne and, for a time, was employed by APC. Each contributed to the household expenses while they lived together. They were still living together in Sunshine when Mr Hull was injured in 2008.
19. The time at which he relocated to Ararat is more difficult to determine. Mr Hull said that Mrs Hull remained in Sunshine for another six months or so before moving back to Ararat. She moved to Ararat, Mr Hull said, because she had been offered a part time job and there was an opportunity for more. It was a good opportunity. At the time, Mrs Hull was pregnant with their first child. They were neither married nor engaged at this stage and had not discussed marriage. They did not have any plans other than that they needed to think about what they should do. He said that he would have liked to get work in Ararat, or close to it, but he denied that his return to that town was inevitable. At an earlier time, he had applied for a transfer to Ballarat but had been unsuccessful. His application would have expired after six months, he said, as that was the normal way of such matters in APC. Before he returned to Ararat on 12 January 2010, he had not had any discussions with his wife or with his family about his desire to return.
20. Mr Hull’s memory is that he himself moved to Ararat on or about 12 January 2010. He said in cross-examination that he made the decision to make the move about three months after APC refused his claim for compensation. The APC’s refusal is dated 7 September 2009.[11] Mr Hull said that he made the move because he could no longer afford the rent. His partner had not been contributing to the household expenses before she left and he had supported them both. He continued to pay his rent after she left but he then had a discussion with his manager. Mr Hull said that his manager had handed him a letter saying that APC was not obligated to give him work for more than three hours. It could throw him off, Mr Hull said. He agreed with Mr Snell’s proposition in cross-examination that his hours remained at their previous level and did not reduce to three hours after that conversation. Rather, they stayed at their previous level. What concerned Mr Hull was that he knew that APC could change the hours. If that happened, he would not be able to afford to live in Sunshine. Mr Hull also agreed with Mr Snell that his income did not reduce but said that occurred because he took a combination of sick, recreation and long service leave.
[11] T documents; T44 at 105-107
21. Mr Hull’s manager was not called to give evidence and nor was I given a copy of the letter to which Mr Hull referred. I have looked to the other evidence to try to work out when Mr Hull made his move to Ararat.
22. I have looked first at APC’s records of Mr Hull’s leave for the first six months of 2009. They suggest that he was still working from WDC at least until 15 February 2009. They record the reasons for his being on leave or absent from work on the following days from the beginning of January 2009 until he took recreation leave from 15 February 2010 to 17 March 2010 and long service from 18 March 2010 to 16 June 2010:[12]
[12] Exhibit 5 and see also Mr Hull’s Pay History at Exhibit 4
From: (2009)
To: (2009)
Description:
Medical cert:
Reason:
Comments:
5 January
5 January
Sick Leave/Family Leave
No
Sick
Doctor's appointment
11 January
11 January
Sick Leave/Family Leave
No
Sick
Sick
12 January
12 January
Sick Leave/Family Leave
No
Sick
Sick sent home
13 January
13 January
Sick Leave/Family Leave
No
Sick
Sick sent home
14 January
14 January
Sick Leave/Family Leave
Yes
SLRD
As per medical certificate
15 January
15 January
Sick Leave/Family Leave
Yes
SLRD
As per medical certificate
18 January
18 January
Sick Leave/Family Leave
Yes
SLRD
As per medical certificate
19 January
19 January
Sick Leave/Family Leave
Yes
SLRD
As per medical certificate
20 January
20 January
Sick Leave/Family Leave
Yes
SLRD
As per medical certificate
21 January
21 January
Sick Leave/Family Leave
Yes
SLRD
Sent home
22 January
22 January
Sick Leave/Family Leave
Yes
SLRD
Sent home sick
25 January
25 January
Sick Leave/Family Leave
Yes
SLRD
Sent home sick
27 January
27 January
Sick Leave/Family Leave
No
SLRD
Slrd
28 January
28 January
Sick Leave/Family Leave
No
SLRD
Sent home
29 January
29 January
Sick leave without pay
No
Sick
Back/Hips/Groin
1 February
1 February
Sick Leave/Family Leave
Yes
SLRD
Sent home
2 February
2 February
Sick Leave/Family Leave
Yes
SLRD
Sent home
3 February
3 February
Sick Leave/Family Leave
Yes
SLRD
Sent home
4 February
4 February
Sick Leave/Family Leave
Yes
SLRD
Sent home
5 February
5 February
Sick Leave/Family Leave
Yes
SLRD
Sick
8 February
8 February
Sick leave without pay
No
Sick
Sick
9 February
9 February
Sick Leave/Family Leave
Yes
SLRD
Sick
10 February
10 February
Sick Leave/Family Leave
Yes
Sick
Sick
11 February
11 February
Sick leave without pay
No
Sick
Sick
12 February
12 February
Sick Leave/Family Leave
Yes
Sick
Sick
23. Mr Hull has said that, apart from recreation and long service leave, he took sick leave to cover his move to Ararat. These records show that APC sent Mr Hull home sick on ten occasions in this period. That suggests that Mr Hull was at WDC on those days if only for a short period and that he was living in Sunshine at the time. Those ten occasions are to be contrasted with those occasions on which he was recorded as “sick” because they indicate that he attended work even if only for an hour or two. They support a finding that he was not in Ararat for the whole day. The days on which he is shown as “sick” do not give any indication of where he was located on those days.
24. Mr Hull said that, when he first returned to Ararat, he took up residence in a house owned by a friend. He paid rent at a reduced rate. In March 2010, a son was born to Mr Hull and his partner. After approximately a year, the family moved to live with Mrs Hull’s mother. They stayed with her for approximately a year before moving on 4 September 2012 to a rental property that she owns. That remains their home. Their daughter was born in approximately October 2012. At that time, Mr and Mrs Hull were engaged to be married and they have since married. Mrs Hull works part-time at the weekend at a winery.[13]
[13] Mr Khan noted that Mrs Hull normally works in a winery (Exhibit A at 4) and Mr Jones noted that she worked part-time on weekends (Exhibit 2 at 4).
25. If Mr Hull’s memory is correct, I would expect that the records of those consulted by Mr Hull would show his address in Ararat and that he would consult medical practitioners and allied health professionals close to home in Ararat just as he did when he lived in Sunshine. The material that I have been given does not show that he consulted any in 2010.
26. The medical material that I do have shows that he first began consulting medical practitioners and allied health professionals in 2011. The first was Mr Vincent Yap who wrote to APC on 2 February 2011 requesting approval for bilateral hip arthroscopic surgery for Mr Hull. His letter is the first to show Mr Hull’s address as an address in Ararat rather than his Sunshine address. It is the address to which Mr Hull said he moved in January 2010. That is consistent with Mr Hull’s evidence because he said that he stayed at the first address in Ararat for approximately a year. What it is not consistent with his evidence is the address that appears on Dr Deary’s letter on 7 September 2011. That is the third address he has lived at in Ararat and where he still lives. If, as he said, he lived at each of the first two addresses for approximately a year and he went to Ararat in January 2010, he would not have been living at the third address in September 2011. That is not a particularly significant difference and, given that the documents show that Mr Hull does not appear to have told APC about his second address. It wrote to him at his first address in December 2011[14]and his third address in January 2012.[15] It may be that he lived at that address for a shorter time than he recalls.
[14] T documents; T93 at 207-211
[15] T documents; T98 at 219-220
27. It may be that Mr Hull did not remember to change his address. That conclusion would be supported by the report of Mr Khan dated 27 October 2010, which mentions that Mr Hull had lived in Ararat for the previous six or seven months.[16] That would suggest that he had moved there in approximately March or April 2010. That would be consistent with his leave records which show that he took sick leave at various times until he took recreation, and later, long service leave beginning on 15 February 2010.
[16] T documents; T141 at 359
28. It would also be consistent with the fact that there is no suggestion in the medical material that Mr Hull continued to consult any Melbourne based medical practitioner or allied health professional in Melbourne in 2010. In fact, it shows that he did not consult any after February 2010 whether in Melbourne or Ararat. He had surgery on his left hip in February 2011[17] and the first reference to his consulting a medical practitioner in Ararat, Dr Deary, does not appear until 7 September 2011.[18] There is nothing to suggest that he consulted Dr Lunz any longer or that he had done so since 2009. His physiotherapist, Ms Parrott, was based in Ballarat and there is no suggestion that he consulted Mr Neufeld any longer or that he had done since 2009. Ms Parrott wrote an open letter dated 13 October 2011 referring to Mr Hull’s third Ararat address and stating that he had been attending for rehabilitation after his hip arthroscopic surgery.[19] A note in APC’s records in March 2011 shows that its employees were aware of his move to Ararat at that time. A letter written by APC to Mr Hull at what was to be his third address in Ararat shows that it was aware of his having moved there by 3 January 2011[20] but there is no earlier reference to it.
[17] T documents; T55 at 133-134
[18] T documents; T78 at 176
[19] T documents; T85 at 193
[20] T documents; T98 at 219
29. On the basis of this evidence, I am not satisfied that Mr Hull moved to Ararat at the beginning of January 2010. I am satisfied that he may have lived there in mid February 2010 when he began his period of recreation and long service leave and continued to live there when it ended. By the beginning of 2011, I am satisfied that he regarded his home as Ararat for that is the time when the records start to record his address as Ararat and, later in the year, he uses services in or closer to Ararat.
30. Given the course of events and the fact that his sick leave records showed that he attended work on some days in January and February 2010 and before he began recreation leave on 15 February 2010, I am not satisfied that any conversation he had with his manager at WDC or letter he was shown by his manager regarding his working for only three hours each day in the future played any role in his decision to move to Ararat. Those records do not support his evidence that his hours were to be reduced. The sick leave records show that he was paid for a full day. They do not support his evidence that he left Melbourne and returned to Ararat on his birthday or even around his birthday on 11 January 2010 for he worked some part days in that time and was sent home. Apart from his evidence that he could not afford to retain his Sunshine accommodation on reduced hours, Mr Hull did not indicate that he made any enquiries about finding cheaper accommodation in Melbourne or considered any options other than returning to Ararat.
31. In view of these matters, I am not satisfied that they support his evidence that any conversation with his manager at WDC and any anticipated diminution in earnings were determinative factors in Mr Hull’s making the decision to leave Melbourne. That is not to say that he does not now believe that they were relevant at the time. What it is to say is that I am not satisfied that he believed them relevant at the time or that they were relevant let alone determinative in his moving to Ararat sometime in 2010.
CONSIDERATION: incapacity
32. The provisions of the SRC Act relating to the provision of a rehabilitation program to an employee do not come into play unless that employee has suffered an “injury resulting in an incapacity for work or an impairment”.[21] The issue in this case is whether Mr Hull has an incapacity for work resulting from an injury rather than whether he has an impairment.
[21] SRC Act; ss 36(1) and 37(1)
The legislation
33. The word “incapacity” is not defined in the SRC Act but s 4(9) provides that:
“A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a) an incapacity to engage in any work; or
(b)an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.”
34. In the context of the provision of a rehabilitation program, the reference to “an injury” in s 4(9) is “… a reference to an injury suffered by the employee in respect of which compensation is payable under this Act.”[22] There is nothing in ss 36 or 37 relating to the provision of such a program that suggests that it is intended to have any meaning other than this.
[22] SRC Act; s 4(8)
35. An “injury” is given its meaning by s 5A of the SRC Act.[23] As there is no suggestion that the qualification set out in s 5A(2) applies, I will omit reference to it in setting out the definition as it appears in s 5A(1):
[23] SRC Act; s 4(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 physical or mental injury arising out of, or in the course of, the employee’s employment; …
(c)…”
A “disease” is defined in s 5B:
“(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, in 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.”
The medical evidence
A. Mr Kelman
36. Mr Kelman is a Consultant Orthopaedic Surgeon who prepared a report dated 26 May 2009 for APC. He examined Mr Hull and reviewed the CT scan of his hips and diagnosed L4/5 disc bulge, early degenerative changes of his right hip, bilateral acetabular labral tears, mild trochanteric pain in his right hip and trochanteric pain syndrome in that right hip with minimal trochanteric pain syndrome in his left hip. In addition, Mr Kelman was of the view that Mr Hull suffered from early degenerative changes to his right hip that were secondary to a minor left upper femoral epiphysis. Mr Hull would have suffered that minor left upper femoral epiphysis as a young adolescent boy. It is demonstrated by the slight alteration in the shape of the femoral head and its relationship to the femoral neck. Cam deformities are apparent on the MRI scan. Clinically, this is supported by Mr Hull’s having reduced internal rotation on the right side compared with his left side.
37. In giving evidence, Mr Kelman said that the cam deformity occurs where the ball sits in the ball and socket joint of the hip. It presents itself as a bony protrusion or growth. In extremes of movement, the protrusion touches and causes an abrasive reaction on the rim of the cup. Short of such movements, there is no contact with the rim. The degree of movement required for that contact to occur differs among individuals. Contact can occur in individuals who remain asymptomatic. The condition is not common in the community but he could not estimate the percentage of people who would suffer from it. It is not related to an injury event. It can be related to repetitive events of abduction but not necessarily so. Symptoms may occur in a person who has no memory of a traumatic event’s having occurred. When shown photographs 1 and 3 of Mr Hull on a Honda CT110 motorbike,[24] Mr Kelman considered that Mr Hull would not be suffering any impingement in his hips in those positions. His only explanation for Mr Hull’s suffering pain was that he was experiencing some soft tissue irritation as a result of repetitive movements. Mr Kelman said that he could not respond to Mr Carey’s proposition that Mr Hull’s deliveries meant that he put his hips into a position that led to their suffering repeated micro trauma. He could not respond to his proposition that, subject to his or her response to treatment, once a person had suffered a labral tear, he or she should not resume motorbike riding.
[24] Exhibit B
38. Mr Kelman had noted symptoms in Mr Hull’s right hip whereas other specialists had reported that he presented with symptoms first in his left hip and then his right. He had no explanation for the difference. Although he could not recall Mr Hull, he would have examined him because that was his usual practice and he would have followed it. Other specialists had examined Mr Hull after he had done so and the pathology had developed. Mr Kelman’s response to Mr Jones’ report that he could not find any evidence of Mr Hull’s suffering trochanteric pain was that trochanteric syndrome resolves. He agreed with Mr Carey’s proposition that Mr Jones was in a far better position to diagnose Mr Hull’s condition as he had seen him more recently and had reports of the surgery carried out by Mr Yap. He accepted the diagnoses of those who had seen Mr Hull more recently but noted that his diagnosis had been made on the symptoms as presented to him.
B. Mr Yap
39. Mr Yap is an Orthopaedic Surgeon who has written several reports and performed surgery on Mr Hull. His earliest is dated 27 May 2009 and took the form of a request to APC for approval to carry out bilateral arthroscopic surgery on Mr Hull’s hips. He summarised the history Mr Hull had given him:
“… Mr Hull is a previously healthy and fit 32 year old gentleman who complained of an almost seven month history of bilateral groin pain secondary to labral tear and femoroacetabular impingement. He started complaining of these symptoms affecting both hips following riding a motorbike delivering mail for Australia Post. His symptoms are worse on the right hip compared to the left. Troy is currently getting occasional nocturnal symptoms despite being on non steroidal anti-inflammatories. He is no longer able to perform his normal duties of mail delivery on a motorbike which is responsible for aggravating his bilateral groin pain. The groin pain is worse with activities involving squatting, getting up from a low chair and particularly with motorbike riding. His current duties are now confined to mail sorting and distribution in-house due to his groin pain.”[25]
[25] T documents; T37 at 64
40. Mr Yap set out his clinical findings:
“Clinically, he has evidence of femoroacetabular impingement with associated labral tear. He has a positive FAIR test with pain in flexion, adduction and internal rotation. He also has a positive FABER test with pain in flexion, abduction and external rotation. His range of motion of his hips are otherwise reasonably well preserved with no fixed flexion deformity and a flexion range of 0-130 degrees. He has internal rotation of 30 degrees, external rotation of 45 degrees, abduction of 40 degrees and adduction of 20 degrees with pain at the extreme of movements.
His most recent Xrays revealed evidence of bilateral Ganz lesions responsible for cam type femoroacetabular impingement. His MRIs of both hips also revealed evidence of bilateral labral tear in the anterosuperior region in association with a cam type impingement. There is also cystic changes in the superolateral acetabular lip.”[26]
[26] T documents; T37 at 64
41. Mr Yap wrote a further letter dated 2 February 2011 seeking approval for the surgery. He reported that the:
“… recent update of his bilateral hip Xrays revealed evidence of significant Ganz lesion contributing to femoroacetabular impingement. He also had superolateral narrowing of his left hip joint consistent with chronic femoroacetabular impingement and development of rim lesion and secondary early degenerative change. The joint space of the right hip was relatively preserved. Again, there was a significant Ganz lesion at the right hip femoral head-neck junction, contributing to femoracetabular impingement.
Clinically, Troy had significant bilateral hip pain with the left hip being more significantly affected.”[27]
[27] T documents; T53 at 130
42. With APC’s approval, Mr Yap performed right hip arthroscopic surgery on 31 May 2011. His findings and surgical intervention were:
“∙ Aneterosuperior Labral tear – debrided to stable edge
∙ Grade II-III acetabular rim lesion – debrided
∙ Combined Cam & Pincer Type Femoroacetabular Impingement
Aneterosuperior labral take down to access pincer lesion – acetabular rim osteectomy performed.
Labrum repaired & stabilised with x2 Osteoraptor (Smith & Nephew) anchors.
Osteectomy of anterior femoral head-neck junction (Ganz lesion) performed.
…”[28]
[28] T documents; T69 at 162
43.In his letter dated 9 November 2011 to APC, Mr Yap noted that Mr Hull’s right hip had improved significantly but that he was still complaining of intermittent left lateral hip and groin pain with occasional radiation to the knee. Mr Hull had also complained of symptoms consistent with left sided trochanteric bursitis with focal tenderness and pain on resisted abduction. Mr Yap recommended ultrasound guided local anaesthetic and Celestone injection into his left trochanteric bursa. That would help to improve his symptoms, he wrote, and enable him to participate effectively in physiotherapy.[29]
[29] T documents; T88 at 198
C. Dr Castle
44. Dr Castle is an Occupational Physician who wrote a report to APC on 20 July 2009. He set out Mr Hull’s work and medical history as well as a summary of the events on 7 November 2008. On Dr Lunz’s advice, Mr Hull had stopped riding the motorbike for approximately five weeks. He then resumed delivery duties but, after some five weeks or so, the pain returned in both of his hips. He would be all right when he began the round but, by the end of it, he was stiff and sore. The pain would increase over the course of the week and ease by the time he had to start his deliveries again on the following Monday.
45. Dr Castle noted the opinions of Mr Kelman and of Mr Yap. He noted that he was not an Orthopaedic Surgeon but considered that his history of the onset of the pain and of its worsening and easing over the course of the week is entirely consistent with his employment being a significant aggravating factor. “It is certainly possible”, Dr Castle wrote, “that his work as a mail delivery officer, riding a motorbike each day, caused the development of the labral tears and the detachment.”[30] A little later, he said that “… Mr Hull’s bilateral acetabular labral tears were at the very least significantly contributed to by his employment, and probably caused by his employment.”[31]
[30] T documents; T42 at 82
[31] T documents; T42 at 82
D. Mr Khan
46. Mr Khan reported on Mr Hull’s condition on two occasions. In his first report dated 27 October 2010, he said that Mr Hull had sustained soft tissue injury to his hips and had presented with symptoms of labral tear in both hip joints. That had been associated with symptoms of femoroacetabular impingement. He has developed internal disruption of his hip joints caused by labral tears and femoroacetabular impingement. In Mr Khan’s opinion:
“Mr Hull has developed internal disruption of the hip joints caused by labral tears and femoroacetabular impingement.
He had cam deformities pre existing to the injury. I consider that his work injury has been a significant factor in his present condition resulting in his symptoms. This condition as mentioned above affecting both hips with cam type of femoracetabular impingement has become symptomatic as a result of his injury and is associated with tearing of the labrum. It is consistent with bending and twisting his back to the sides, straining his hip whilst seated on his motorbike, taking into consideration his considerable height and amount of bending and twisting stresses placed on his hips and back.
Hence, I consider that his employment is a significant contributing factor to his present injury, the diagnosis of which has been submitted above, affecting both hips. He has also sustained minor symptoms of discogenic pain in his lower back but without radiculopathy which has subsided by now.”[32]
[32] T documents; T141 at 362
Mr Khan remained of the same opinion in his second report.[33]
[33] Exhibit A
47. In his oral evidence, Mr Khan said that treatment with medication such as Panadeine Forte, deep tissue massage and physiotherapy is to treat the symptoms but not to cure the problem. He sees value in Mr Hull’s learning to stretch. Remedial massage also has value in dealing with his tender muscles. An exercise program in a hydro pool will provide Mr Hull with symptomatic relief.
48. He explained the mechanics of Mr Hull’s condition. Normally, the spherical head of the femur moves smoothly inside the cup spherically but, if there are bumps, it will stick on certain of those bumps and not move smoothly. That means that a person may be able to move all right and play games but not be able to flex or abduct his hip because that will cause a bump to stick and cause pain. If that happens a few times over the area where the head of the femur touches the lip of the cup, it is touching soft tissue.
49. Micro trauma can cause inflammation and aggravate the condition. Repetitive micro trauma is a significant contributing factor in developing the condition. That view is consistent with Mr Hull’s first experiencing it as a sharp pain after a single incident. In cross-examination, Mr Khan said that he could not comment on Mr Snell’s proposition that a person may have symptoms even when there is no history of repetitive traumatic movement of the hips. It is not uncommon for people to have the condition but be unable to say what provoked the condition. Many active people ignore injuries and so are unable to identify micro traumas when they occur.
50. Mr Khan agreed with Mr Snell that his diagnosis depends in part on whether the bumps are on the bone or the socket. There are other conditions that cause a hip condition as it is a complex joint. He came to his diagnosis on the basis of Mr Hull’s description of his symptoms; he could describe them well. Mr Khan appreciated that Mr Hull had described pain first in his left hip and then in his right and that he delivered to his left rather than his right. Mr Hull must have aggravated his right hip riding the motorbike. He cannot have ridden it without ever putting his right foot on the ground.
51. Mr Snell put to Mr Khan that, if the source of pain in Mr Hull’s right hip could not be identified even though there is no question that it exists, it is possible that the pain in his left hip does not owe its origins to mechanical means. Mr Khan said that he could not answer that. It is possible that the pain in his left hip could have happened without his suffering any trauma but, in his opinion, his work was a significant contributing cause.
52. Mr Khan was aware of the surgery that Mr Yap proposed to perform on Mr Hull’s left hip. He regarded it as a reasonable treatment for the condition but it would not cure it. As time goes on, he will face further restrictions. If he avoids heavy weights, bending and lifting, he will be able to extend his working life.
E. Mr Jones
53. In his second report dated 4 July 2013, Dr Jones wrote:
“I believe that the condition affecting this patient’s lumbar spine given the circumstances of the work injury reflect a possible aggravation of some mild constitutional degenerative disc disease affecting the lumbar spine. I believe that he has recovered from the effects of this possible aggravation. With respect to the patient’s hips, Mr Hull has a constitutional problem in the form of bony spurs on the neck of both femurs which has resulted in the condition of femoroacetabular impingement. Although his work has not caused the bony abnormality it is possible that the associated labral tear on the margin of the hip joint may have been caused or possibly aggravated by this man’s motorcycle deliveries and to the work injury of 07.11.2008. The extreme position of this patient’s hips astride a motorcycle and the stretching involved in reaching towards a letterbox places the hips in an extreme position resulting in the impingement of the bony spur on the margin of the hip joint and possible causing or aggravating the labral tear. I would add that the same pathology affecting Mr Hull can be seen in patient’s [sic] who have never suffered any extreme positions of the hip or suffered any specific injuries to either joints.”[34]
[34] Exhibit 2 at [7.1.5]
54. In his first report dated 25 August 2009, Mr Jones had disagreed with opinions expressed by Mr Kelman and Dr Castle regarding the cause of Mr Hull’s condition. With regard to Mr Kelman’s opinion that Mr Hull suffers from Trochanteric Pain Syndrome in both hips but more so in the right, Mr Jones said that he could find no clinical evidence of pain in Mr Hull’s trochanter. There are sufficient signs in the hip joint itself and in the supporting X-ray evidence to make a diagnosis of femoroacetabular impingement. Mr Jones did, however, agree with Mr Kelman that it is Mr Hull’s hips, and not his back, that are the cause of his current incapacity.[35]
[35] T documents; T43 at 91
55. With regard to Dr Castle’s opinion that M Hull’s acetabular labral tears are solely the result of the injury on 7 November 2008, Mr Jones said that the condition of femoracetabular impingement is often seen without any specific injuries or insults such as that which occurred on that day.
56. Mr Jones considered that Mr Hull was capable of performing his pre-injury duties provided he did not undertake motorbike deliveries. He is capable of performing them on a full-time basis provided he does not adopt extreme positions with his hips i.e. squatting or kneeling or adopting positions where his hips are kept in the flexed and abducted position.[36]
[36] T documents; T43 at 90
F. Dr Bloom
57. Dr Michael Bloom is an Occupational and Environmental Physician. He had examined Mr Hull and reviewed the various medical reports in this matter. In his opinion, Mr Hull’s bilateral hip condition is a cam deformity and is the cause of his symptoms. It is a congenital constitutional deformity that does not necessarily become symptomatic. In his opinion, the labral tears relate to the cam deformity because the cam deformity results in impingement and impingement causes degenerative tears of the labrum.[37]
[37] Exhibit 3 at 4 and 5
58. In Dr Bloom’s opinion, it is very unlikely that Mr Hull sustained any hip strain. He noted that the onset of Mr Hull’s symptoms was not associated with any major trauma or transfer of energy and that the symptoms resolved after five weeks. Dr Bloom also noted that Mr Hull experienced bilateral hip pain, as opposed to left hip pain, after he had resumed his normal duties and performed them for only one week. His symptoms worsened even when he was not performing his duties. Had the condition been hip strain, he would have expected it to have improved once its cause was removed by Mr Hull’s not undertaking motorbike duties. Instead, it worsened.
59. In summary, Dr Bloom considered that Mr Hull’s employment has not contributed to his condition other than to cause temporary exacerbation of its symptoms. Mr Hull is unlikely to recover as his condition tends to result in the gradual development of osteoarthritis and he is unlikely to recover. Arthroscopic surgery is aimed at relieving the symptoms and attempting to slow progression but the course of the condition is to slowly progress and worsen over time. In the long term, Mr Hull may require hip replacement surgery.
60. In his oral evidence, Dr Bloom said that, in forming his opinion regarding the cause of a particular condition, he looks to literature including the American College of Occupational Medicine Guidelines as well as to the circumstances of the individual patient. A lot of congenital conditions are labelled as occupational injuries when they are generally not considered to be that at all. In the absence of a traumatic event, labral tears are generally not regarded as occupational injuries.
61. In Dr Bloom’s opinion, Mr Hull is suffering from a congenital and long standing condition that has developed over the course of his life. The bony overgrowth is likely to reduce the space within which the joint moves and so reduce freedom of movement. That is likely to increase the symptoms of pain, he said. The condition would take quite a long time to develop but could be accelerated by an acute event such as a fracture. In cross-examination, he explained that a certain amount of soft tissue involvement has to be assumed in the impingement. Bone has pain receptors but it is to be assumed that there is soft tissue involvement to have pain. While the pathology that is causing the pain is known, how that pathology is causing it is not. Dr Bloom said that he found it very difficult to answer Mr Carey’s proposition that each repeated impingement equates to a micro trauma or produces an aggravation so that the condition becomes symptomatic. A percentage of cases appear to regress regardless of the condition. Movement is regarded as therapeutic. Lack of movement will not only fail to slow degeneration, it will accelerate it. Movement is like lubricating a joint and normal movements do not bring a joint under trauma or cause degeneration.
62. In cross-examination, Dr Bloom said that at least 10% of the population suffer from the same condition but not all are symptomatic. Some are symptomatic at a younger age but more become symptomatic as they age. There is no way of determining why they become symptomatic.
63. In Dr Bloom’s opinion, Mr Hull would not be able to undertake his duties as a Postal Delivery Officer because he could not comfortably ride a motorbike. His condition has been exacerbated to the point where he should not continue that activity, he said in cross-examination. He could not say whether his condition has been aggravated. Exacerbation, he explained in re-examination, occurs when underlying pathology is rendered symptomatic due to a particular activity but further damage is not necessarily caused to the underlying pathology. If there is aggravation, it persists while the symptoms remain. He thought that Mr Hull had suffered an exacerbation but he was unsure if he had suffered any permanent damage from the incident on 7 November 2008 as he had a bilateral condition. He looked to the literature to see if the condition was more prevalent in postal delivery workers and motorbike riders and had found none to support that conclusion. He concluded that Mr Hull had a degenerative condition rendered symptomatic by his increased workload at the relevant time but he was not in a position to be sure whether his duties had caused him any permanent damage.
64. Based on his current level of symptoms and functional capacity, Dr Bloom considered that Mr Hull was able to work in his current duties provided he worked within the confines of five constraints he set out in his second report. The first three were that he avoided squatting and prolonged motorbike riding or other activities involving frequent or extreme movement of the hips and that he took rest and exercise breaks on an “as needed” basis. He noted that Mr Hull had informed him that he was then working full-time hours within those constraints and that he was coping.
65. The final two constraints concerned his travelling to work. Dr Bloom wrote in his report of 23 April 2013:
“∙ Ideally he would not travel more than 30 minutes each way to work.
∙ On days of severe exacerbation of pain he may not be able to comfortably travel to and from work and therefore may require sick leave from time to time.”[38]
At the conclusion of his first report dated 10 January 2012, Dr Bloom had written:
“… provided that he is working on suitable duties within the constraints and conditions listed above, there is no physical contraindication to resuming full-time duties. Indeed, the primary barrier to increasing to full-time hours is the distance of travel from his place of residence to his place of work in Melbourne.”[39]
[38] Exhibit 3 at 5 [7]
[39] T documents; T101 at 232
66. He went on to comment further on Mr Hull’s travelling in his later report:
“One of the barriers appears to be the fact that he lives much of the time with his family in Ararat whilst his place of work is in Sunshine. Travelling from Ararat to Sunshine and back every day would not be an option for him. Ideally his place of work would be far closer to his home.
I have not identified any adverse psychosocial or motivational factors.”[40]
[40] Exhibit 3 at 6 [9]
67. In cross-examination, Dr Bloom said that Mr Hull had told him that it takes him 45 to 50 minutes to travel from Geelong to the WDC. He believed Mr Hull when he told him that he could tolerate sitting for only 30 to 60 minutes. The travel from Geelong to WDC was close to the level of his sitting intolerance. It does not surprise Dr Bloom that Mr Hull feels that sitting in bucket seats in a motor vehicle increases his pain. The condition is progressive and it is not surprising that the condition has become worse in the last two years.
G. Mr Haig
68. Mr Ronald Haig, a Consultant Orthopaedic Surgeon, examined Mr Hull and took his medical history. In his first report dated 4 July 2012, he expressed the opinion that:
“Mr Hull suffers from bilateral femoro-acetabular impingement, this being more symptomatic on the left side.
This is a constitutional anatomic abnormality of the hips where, due to the orientation of the femoral head relative to the acetabulum there is with particular movements, particularly combined internal rotation and flexion, impingement of the neck of the femur against the acetabular rim. This causes damage of a mechanical nature to initially the acetabular labrum and in due course to the articular cartilage of the acetabulum. It also results in a ‘bump’ at the femoral neck-head junction.
…
This has not been a matter of hip strain at all but rather he has a constitutional condition which presented itself when on delivering mail and bending forward to the left he experienced left hip pain which I believe was due to the impingement discussed above. This was not a ‘strain’. He was simply rendered symptomatic by pre-existing although previously asymptomatic anatomic abnormality of the hip. It was a little while later that without any particular or similar episode he started to develop similar although lesser pain in the right hip where X-rays and the MRI scans have shown similar pathology.
…
While it is so that his left hip pain came on during a particular manoeuvre delivering mail this was due to an underlying developmental condition which would have presented itself sooner or later regardless of his work.”[41]
[41] T documents; T 143 at 380-381
69. In his second report dated 12 September 2012, Mr Haig said:
“It is difficult to predict when Mr Hull’s hip condition would have become symptomatic had it not been for the work incident of November 2008.
I do however believe it is reasonable that the condition would now be symptomatic in any event. My reason for stating that is that while both hips were improved by the arthroscopic procedure, he states that on the left side there is now constant pain.
On the right side, which is less symptomatic, he mentions a stiffness and soreness which are intermittent. I believe that is the natural history of his condition catching up with him as it were.
…
I do believe the aggravation caused by his employment has now ceased for the reasons stated above, namely that while there was initial improvement after the arthroscopic procedure, he is now symptomatic particularly on the left side.
In short I believe the aggravation caused by his employment has long since passed and his disease process is now catching up with him.”[42]
[42] T documents; T144 at 398-399
Mr Hull’s condition
70. Apart from Mr Kelman, the medical evidence of Mr Hull’s condition is consistent. Although there is no question that Mr Hull initially experienced lower back pain, there is general agreement that he does not have any deformity or injury to his back. The reports of the X-rays, CT scans and MRIs taken of Mr Hull’s hips, the evidence of his treating surgeon, Mr Yap, and the other specialists all agree that Mr Hull is suffering bilateral femoroacetabular impingement with associated labral tear. It is a degenerative condition. That is the evidence of Mr Jones, Dr Bloom and Mr Kelman as well as Mr Yap.
71. The weight of evidence also supports my finding that Mr Hull’s bilateral hip condition is a constitutional condition and not a condition that has arisen out of, or in the course of, his employment. Whether he has suffered an aggravation in the course of his employment or whether an aggravation arose out of it is another matter. There is no question that:
“… pain brought on by work activity may constitute an aggravation of a pre-existing injury, even though no pathological change takes place.”[43]
[43] Commonwealth of Australia v Beattie (1981) 35 ALR 369 at 378 per Evatt and Sheppard JJ and see also Kelly J at 386 when he adapts the words of Moffitt J (with whom Sugerman J agreed) in Federal Broom Co Pty Ltd v Semlitch in the Court of Appeal below and quoted with approval by Kitto J in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 634: “There is an (aggravation) of an (injury) where experience of the (injury) by the patient is increased or intensified by an increase or intensifying of symptoms. The word is directed to the individual and the effect of the (injury) upon him rather than being concerned with the underlying mechanism.”
That is so provided that aggravation was suffered in the course of, or arose out of, Mr Hull’s employment as required by paragraph (c) of the definition of “injury” in s 5A(1) of the SRC Act.
72. Mr Yap is Mr Hull’s treating surgeon and has had professional contact with him since 2009. In view of this, his evidence is worthy of careful consideration. In his report dated 27 May 2009, he considered that Mr Hull’s mail delivery duties using a motorbike were responsible for aggravating his bilateral groin pain. Mr Haig was of the same view as was Dr Bloom. Mr Jones put Mr Hull’s employment no higher than being a “possible” factor in the aggravation of the condition. The weight of evidence, though, favours its being more than a possible factor and I am satisfied that his constitutional condition was rendered symptomatic, in the sense of painful in this instance, by Mr Hull’s duties when riding his Honda CT110 motorbike. Therefore, he has suffered an injury within the meaning of s 5A(1).
73. My finding that he has suffered an injury does not mean that he continues to suffer from that injury. He only continues to do so if he continues to suffer an aggravation of his constitutional condition and that is “an aggravation that arose out of, or in the course of, that employment”. The fact that he continues to suffer pain is not a sufficient basis on which to make that finding. He is suffering from a constitutional degenerative condition which, by its nature, will worsen over time. I have to decide whether the pain from which he continues to suffer has arisen out of, or has been caused by, his employment or is attributable to degeneration of the condition unrelated to the nature of his employment and its duties.
74. Dr Castle thought that it is “certainly possible” that Mr Hull’s riding his motorbike while delivering mail caused the development of his labral tears and detachment and that they were “at the very least significantly contributed to by his employment” and were “probably” caused by his employment. His opinion receives some support from Mr Khan, who considered that Mr Hull’s duties not only rendered his condition symptomatic but were associated with the tearing of his labrum. Their evidence is not consistent with that of Mr Jones, who noted that the condition is often seen without any specific injuries or incidents and was more equivocal about the role of the motorbike in Mr Hull’s becoming symptomatic. He puts it no higher than that its role is “possible”. Dr Bloom was no more definite. In his opinion, Mr Hull’s employment contributed to the temporary exacerbation of the condition’s symptoms but he could not be sure whether his duties had caused any permanent damage. All of these specialists had examined Mr Hull and examined the diagnostic material such as X-rays. Mr Yap, who had the advantage of operating upon Mr Hull and having treated him from the early days of Mr Hull’s experiencing symptoms, did not express an opinion regarding the ongoing contribution of his employment to his symptoms.
75. If I were looking at this matter only on the numbers, they would be evenly balanced at this stage. If I look at the timing of Mr Hull’s experiencing symptoms, the balance changes. Apart from Mr Kelman, the general view, and the evidence of Mr Hull himself, is that he first experienced pain in his left hip. While his right leg and hip remained in a mostly static position on the motorbike during mail deliveries, it was his left leg that he swung out to the ground and leant on to make deliveries. It was during one of those deliveries that he first experienced pain in his left hip. Despite its lack of involvement and being relatively static, though abducted, position on the motorbike, his right hip also became symptomatic. That was noted by Mr Yap and by Mr Haig. In Mr Haig’s view, his condition would have presented itself sooner or later regardless of his work. Mr Hull is experiencing the natural history of the condition. The proposition that Mr Hull continued to suffer micro trauma in the sense that each impingement produces an aggravation in the sense of causing pain was a proposition that Dr Bloom found hard to answer. Even if the proposition were accepted, Mr Hull would face the difficulty of establishing that the events leading to the micro trauma arose out of, or in the course of, his employment. He would have to overcome the evidence that his duties were moulded, on the advice of his medical practitioners, to avoid his abducting or flexing his hips and so to avoid the impingement of the neck of the femur against the acetabular rim.
76. Mr Hull’s right hip did not become symptomatic at the time but it followed a little time later. The medical specialists who have written reports have not referred to any particular incident that triggered his right hip’s becoming symptomatic. There is reference, however, in the report of Mr Neufeld.[44] He wrote on 13 March 2009 that Mr Hull had suffered an increase in low back and right hip pain when getting off his motorbike on 19 February 2009 following a mail delivery. No mention is made of this incident in the medical reports but I note that it does not sit easily with the history he had given to Dr Castle. That history is to the effect that he had stopped riding the motorbike for approximately five weeks, then resumed delivery duties but, after a further five weeks or so, pain returned in both of his hips. Understandably, it is difficult to remember the timing of events with precision at a much later time. No mention is made of this later incident to the medical specialists who examined Mr Hull and they focus instead on the first incident. Mr Neufeld’s report of the incident does, though, throw light on Mr Kelman’s focusing on Mr Hull’s right hip and not his left at the time he saw him in May 2009.
[44] T documents; T26 at 37
77. Weighing all of the evidence and regardless of whether there was one incident or two, I am satisfied that Mr Hull’s is suffering from bilateral femoro-acetabular impingement with bilateral acetabular labral tears. It is a degenerative condition. It was aggravated in the sense that it was made symptomatic first in his left hip in November 2008 and later in his right hip in May 2009. Accepting that they were both aggravated in the course of his employment, I am not satisfied that his employment continued to be a source of their aggravation indefinitely. Although there is evidence to the contrary, the weight of medical evidence favours my finding that the condition degenerated in the usual course of events to the stage where the pain he suffers is the pain that he would have suffered had he not had the incidents of November 2008 or May 2009. Given his restricted duties, I am not satisfied that Mr Hull would have suffered micro traumas arising out of, or in the course of, his employment.
78. The precise date on which it could be said that what would be the normal course of the condition and the course it in fact took as a consequence of the aggravation on 7 November 2008 arrived at the same point is difficult to fix with any precision. Mr Jones thought that Mr Hull had recovered from the effects of “this possible aggravation” when he saw Mr Hull in July 2013. Others, such as Mr Jones and Dr Bloom, thought earlier and certainly by 5 March 2012 when APC made its determination. There is no evidence of any other events or incidents that would suggest that there were any changes in the condition or that it took any course other than that expected of it. It follows that I am satisfied that the effects of the aggravation of Mr Hull’s condition had ceased on and from the beginning of March 2012.
79. This decision has several consequences. The first is that Mr Hull is not entitled to ongoing payments of compensation on and from 1 March 2012. As his condition is not an injury under the SRC Act, he is not entitled to the payment of the costs of a revision left hip arthroscopy by Mr Yap or of the costs of other medical treatment. That means that I affirm the reviewable decisions made by APC on 27 April 2012 and 28 February 2013.[45]
[45] Application Nos. 2012/1947 and 2013/0982
CONSIDERATION: Compensation in respect of medical expenses
80. The six occasions on which Mr Hull consulted Mr Yap in Melbourne all occurred between January 2011 and 25 May 2011. They are within the period during which Mr Hull has suffered an injury. Therefore, Comcare is liable to pay compensation in respect of his medical treatment of such an amount as it determines is appropriate to that medical treatment and having regard to the provisions of s 16 of the SRC Act.
Legislation
A. Compensation in respect of medical expenses
81. Section 16(1) of the SRC Act provides that, where an employee suffers an injury, APC:
“… 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.”[46]
[46] The cost of medical treatment may also include certain professional services reasonably required in connection with the supply, replacement or repair of property used by an employee as part of his or her medical treatment: SRC Act; s 16(3).
It does not matter whether the injury results in death, incapacity for work or an impairment.[47]
[47] SRC Act; s 16(2)
82. Where compensation is payable in respect of medical treatment,[48] APC may be liable to pay further compensation to the employee if:
“… the employee reasonably incurs expenditure in doing either or both the following:
(i)making a necessary journey for the purpose of obtaining that medical treatment;
(ii)remaining, for the purpose of obtaining that medical treatment, at a place to which the employee has made a journey for that purpose;
… [APC] is liable to pay compensation to the employee …”.[49]
[48] SRC Act; s 16(6)(a)
[49] SRC Act; s 16(6)(b)
B. Compensation in respect of the journey and accommodation
83. The amount of compensation that is payable is calculated under s 16(6) but subject to the qualification in s 16(7). Beginning with the calculation, Comcare, and so APC as its license:
“… is liable to pay compensation to the employee:
(c)in respect of the journey – of an amount worked out using the formula:
Specified rate per kilometre x Number of kilometres travelled where:
specified rate per kilometre means such rate per kilometre as the Minister specifies, by legislative instrument, under this subsection in respect of journeys to which this subsection applies.
numbers of kilometres travelled means the number of whole kilometres … [APC] determines to have been the reasonable length of such a journey as it was necessary for the employee to make (including the return part of the journey);
(d)in respect of the employee remaining for the purpose of obtaining the treatment - of an amount equal to the expenditure so reasonably incurred in remaining for that purpose.
84. Turning now to the qualification in s 16(7), it provides that APC is not liable to pay compensation under s 16(6) unless the “reasonable length of such a journey as it was necessary for the employee to make (including the return part of the journey) exceeded 50 kilometres”[50] or, regardless of the distance, the journey involved public transport or ambulance services and his or her “… injury reasonably required the use of such transport or services …”.[51] The latter situation does not arise in this case.
[50] SRC Act; s 16(7)(a)
[51] SRC Act; s 16(7)(b)
85. Before deciding any matters arising under ss 16(6) and (7), regard must be had to s 16(8). It provides:
“The matters to which Comcare shall have regard in deciding questions arising under subsections (6) and (7) include:
(a) the place or places where appropriate medical treatment was available to the employee;
(b) the means of transport available to the employee for the journey;
(c) the route or routes by which the employee could have travelled; and
(d) the accommodation available to the employee.”
Separating the issues
86. I think it important to separate the issues that require determination in order to highlight the different contexts in which reasonableness must be determined and the circumstances in which s 16(8) comes into play.
87. The first issue arises under s 16(1) and relates to medical treatment. It requires resolution of the following sub-issues:
(1)Did the employee obtain medical treatment?
(2)If so, did the employee obtain that medical treatment in relation to the injury i.e. the “injury” as defined by s 5A when read with s 5B of the SRC Act regardless of whether it resulted in death, incapacity for work or impairment?
(3)If so, was the medical treatment that the employee obtained reasonable for him or her to obtain in the circumstances?
(4)If so, what is an amount that is “appropriate” to pay for that medical treatment?
These are not issues that are in dispute in this case.
88. The second issue relates to what could broadly be described as the associated costs of obtaining that medical treatment in the sense of those costs that arise from travelling to the person or service where it is provided and finding accommodation as required. The second issue arises under ss 16(6) and (7) and involves the following sub-issues:
(1)Was compensation payable in respect of the cost of medical treatment?
(2)If so, did the employee make a journey for the purpose of obtaining that medical treatment?
(3)If so, was that journey a “necessary journey” for the purpose of obtaining that medical treatment?
(a)If so, did the employee reasonably incur expenditure in making that journey?
(b)If so, how was the journey made?
(i)If it did not involve the use of public transport or ambulance services, what is the reasonable length of that journey including the return journey?
∙Did the reasonable length of the necessary journey exceed 50 kilometres?
(ii)If it did involve the use of public transport or ambulance services, did the employee’s injury “reasonably require” their use.
(4)If the employee made a “journey” to a place for the purpose of obtaining medical treatment, did he or she remain at that place “for the purpose of obtaining that medical treatment?
(a)If so, did the employee reasonably incur expenditure in remaining at that place?
(b)If so, what expenditure was “reasonably incurred” by the employee in remaining?
89. In determining the sub-issues requiring determination under the second issue, s 16(8) comes into play but it has no part to play in resolving the sub-issues arising under the first issue.
A.The second issue: journey and remaining at a place for purpose of obtaining medical treatment
A.1 Section 16(8): “have regard to”
A.1.1 General principles relating to interpretation of “have regard to”
90. Section 16(8) sets out four matters to which Comcare, and so APC and I, “shall have regard” in deciding questions arising under ss 16(6) and (7) of the SRC Act. I have expressed them as sub-issues but that is of no consequence. The important issue is what is meant by the requirement that I “shall have regard” to them.
91. Clearly the requirement is mandatory in that I “shall have regard” to the four matters for, in its context, the word “shall” is used in the sense of imposing an obligation.[52] The obligation that is imposed is to “have regard” but what does that mean? In its ordinary meanings, it would seem to signify an obligation “to consider”, “to pay attention to or take notice of something”.[53]
[52] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers (Chambers)
[53] Chambers
92. In some cases, the courts have interpreted the obligation to “have regard” to certain matters in a way that would seem to take it beyond merely considering or taking notice of certain matters. In Commissioner of Police for New South Wales v Industrial Relations Commission of New South Wales & Raymond Sewell,[54] for example, Spigelman CJ, with whom Macfarlan and Young JJA agreed, said:
“ A statutory requirement to ‘have regard to’ a specific matter, requires the Court to give the matter weight as a fundamental element in the decision-making process. (R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329; R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 333, 337-338; Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589 at [71]-[73]). An equivalent formulation is that the matter so identified must be the focal point of the decision-making process. (See Evans v Marmont (1997) 42 NSWLR 70 at 79-80; Zhang supra at [73].)”[55]
[54] [2009] NSWCA 198; Spigelman CJ, Macfarlan and Young JJA
[55] [2009] NSWCA 198 at [73]
93. His Honour did so in the context of, among other provisions, s 181D of the Police Act 1990 (NSW) (Police Act) which provides that the Commissioner of Police (Commissioner) may remove a police officer from the New South Wales Police Force if the Commissioner does not have confidence in the police officer’s suitability to continue as a police officer “having regard to the police officer’s competence, integrity, performance or conduct.” When reviewing a decision of the Commissioner to remove a police officer, the Industrial Relations Commission (NSW) was required to proceed in the manner set out in s 181F of the Police Act. Section 181F(3) provided that, without limiting the matters to which the Commission have regard, it “… must have regard to … the interests of the applicant, and … the public interest …”.
D. Did the APC have regard to the criteria in s 37(3)?
155. As can be seen from the Chronology in Attachment A, the determination was made after a lengthy history of assessments for rehabilitation had been carried out by APC and reports obtained by APC from Mr Hull’s treating medical practitioners and allied health specialists. Those assessments and reports considered his capacity to undertake work and the limitations that he faces in working. They are reflected in the restrictions and limitations included within the rehabilitation program.
156. It may be that there is a question whether regard was had to Mr Hull’s attitude to the program as required by s 37(3)(f). If there is, I think that the material shows that regard was had to his attitude. The Rehabilitation Upgrade Program records consultation with him and the regard that was had to the material from his treating medical practitioners. It reads:
“1.3.2012 Formal review with Troy Hull, Mark Lynch (mgr) and Isobel Kemp (Rehab consultant) – reporting ongoing pain in left hip – further cortisone (2nd one) recently on 6.2.2012 – some resolution of pain – if not maintained Mr Yap to review × 4 weeks – considering further arthroscope procedure on left hip. Reporting right hip does niggle at times but settles. (Saw Mr Yap 28.2.2012). Discussed Dr Bloom’s report – wishes to follow own Dr’s opinion stating 6 hours × 3 days / week (dr Deary). Continues deep tissue massage and is to re-commence physiotherapy as per Mr Yap yesterday due to ongoing pain esp. in left hip. Not happy with Dr Bloom’s opinion – will follow up with rehab.”[113]
[113] T documents; T113 at 269
157. The reference to Mr Hull’s not being happy with Dr Bloom’s opinion is a reference to opinions expressed by Dr Bloom in his report dated 10 January 2012 that he could, with restrictions, resume full-time working hours. Active Rehab Works had sent a copy of that report to Dr Deary for his comment. It did so on 1 February 2012 and received his response on 16 February 2012. Dr Deary addressed Mr Hull’s capacity only until a review on 22 February 2012 and did not address the longer term question.
158. It is true that the rehabilitation program does not mirror Mr Hull’s concerns but that is not to say that it was reached without regard to his attitude. The comments recognise that he is continuing to suffer pain and that he wanted to follow the advice of his own medical practitioner, Dr Deary, rather than that of Dr Bloom. They note that Mr Yap would be reviewing Mr Hull in a month’s time. It seems to me that Mr Hull’s thoughts were taken into account as part of the decision-making process leading to the determination of the rehabilitation program.
159. No specific reference is made to other matters listed in s 37(3) such as the cost of the program, the improvement in the employee’s opportunity to be employed after completing the program and the relative merits of any alternative and appropriate rehabilitation program. I do not think that there necessarily needs to be in order to satisfy the requirements of s 37(3). If, as in this case, there is a long history of consultation and the development of various rehabilitation programs and their adjustment along the way, it seems to me that regard to those matters can be implicit in the process. This is such a case. It follows that I consider that APC did make a determination of a rehabilitation program on 1 March 2012.
Did the rehabilitation program require Mr Hull to undertake duties at WDC?
160. It is important that I identify what is comprised within the rehabilitation program so that I can identify what it is that Mr Hull is said to have failed or refused to undertake. I can then decide if he has a reasonable excuse for any failure or refusal.
161. The rehabilitation program determined on 1 March 2012 required Mr Hull to undertake full-time hours on each of five days and to perform full indoor duties as a Postal Delivery Officer but without delivery. He was required to perform those duties at WDC.
Did Mr Hull refuse or fail, without reasonable excuse, to undertake a rehabilitation program provided for him?
162. In answering the question I have posed in the heading, I am not permitted to review the rehabilitation program and to decide whether it was a reasonable program. I must take the program as it was. That was decided in Pascoe, to which I have referred above. That is not to say that I cannot review the program at all but that I must do so separately in response to Mr Hull’s application for review of APC’s determination that he commence a rehabilitation program dated 1 March 2012. If it should turn out that, in reviewing the rehabilitation program separately, I decide that it should be varied, I can then go back and, as a separate exercise from the first, ask again whether Mr Hull refused or failed, without reasonable excuse, to undertake a rehabilitation program provided for him.
163. Taking the rehabilitation program as it was, it was a program that required him to undertake duties at WDC. On the basis of the evidence of Mr Hull, which is supported by the evidence of his treating medical practitioners, I am satisfied that Mr Hull suffers pain and discomfort in his hips when travelling from Geelong to the WDC let alone the greater distance from Ararat to WDC. He does not suffer pain and discomfort of that sort when travelling shorter distances.
164. I am not satisfied that the fact that he suffers pain is a reasonable excuse within the meaning of s 37(7). Mr Carey submitted that Mr Hull left his home in Sunshine and within the vicinity of the WDC because of a conversation that he had with his manager about the hours of work he would be offered. I have found that he left a month or so after any conversation of that sort took place and that I am not satisfied that he believed the contents of the conversation that he had with his manager to be relevant at the time or that they were relevant let alone determinative in his moving to Ararat sometime in 2010. Instead, I find that he made a choice to move to Ararat for other reasons. On the basis of his oral evidence, I find that one reason for his doing so was his need to seek the support of his family. That is understandable and, at the time he moved there, he was on leave from his work at WDC.
165. Even if I were to accept that Mr Hull moved to Ararat because he thought that he would be offered insufficient work at WDC to maintain his Sunshine accommodation, by the time APC made the determination on 1 March 2012 that he participate in a rehabilitation program, the landscape had changed. APC had accepted liability for bilateral hip strain on 1 February 2011. He had been in receipt of compensation payments and been engaged in paid employment in the terms of various rehabilitation programs that had been developed and adjusted in consultation with his medical practitioners and with him. I have referred to them in the Chronology. They were undertaken at WDC where he had been employed before his injury. It was not reasonable for him to fail or refuse to undertake the next program in what had been a succession of rehabilitation programs leading to his being employed on a full-time basis in duties that had regard to the limitations and restrictions brought about by his injury. Therefore, I have concluded that Mr Hull did not have a reasonable excuse for failing or refusing to comply with the rehabilitation program determined on 1 March 2012 and affirm APC’s reviewable decision dated 1 March 2013.[114]
[114] Application No. 2013/0983
The rehabilitation program
166. I have discussed what is meant by a “rehabilitation program” and the relevance of an employer’s obligation to provide suitable employment above. It is clear that a rehabilitation program is intended to restore an injured employee’s capacities. The ultimate goal would be for an injured employee’s capacities to be fully restored and for him or her to return to his or her former employment but the nature of an injury may be such that the ultimate goal is not achievable. A different goal may need to be set and it may be that the goal cannot be set in a workplace environment at all. That may be a consequence of the injury or it may be that, even taking all reasonable steps to assist an employee to find it, employment that is suitable can be envisaged but cannot be found.
167. The SRC Act is drafted with such complexities in mind. It is legislation that imposes a liability on employers to pay compensation to employees and to make provision for their rehabilitation in accordance with the terms of the legislation. An employee has a correlative power to obtain compensation and rehabilitation. A balance is struck between the liability and the power in the wider context of medical and other services that are required by an injured employee and of the workplace.
168. The workplace is brought into play by the provisions of s 40 and its imposition of a duty on an employer to “take all reasonable steps to provide the employee with suitable employment or to assist the employee to find such employment.” The word “employment” does not suggest vocational retraining or the like and I do not think that it is encompassed within the notion of “suitable employment”. The ordinary meaning of the word “employment” is:
“… 1 the act of employing or the state of being employed. 2 an occupation, especially regular paid work. …”[115]
That is not consistent with vocational retraining. The SRC Act itself distinguishes the two when, in s 19(4)(d), it distinguishes between “suitable employment” and a “rehabilitation program or vocational retraining program”. The definition of “suitable employment” distinguishes between an employee’s “work” and his or her being “employed”. It does so when it provides that, in the case of an employee who continues to be “employed”, “suitable employment” is “work for which the employee is suited having regard to …” the matters I have set out at [123] above. What is “suitable employment” is not determined by the employee but by reference to those criteria. As Flick J said in Goodricke v Comcare:[116]
“… It would be an odd construction of the phrase ‘suitable employment’ if an injured employee could shun employment which he was otherwise able and qualified to undertake so that he could henceforth engage in only that work which he unilaterally considered provided personal security, satisfaction or gratification. An injured employee may so choose; but s 19 will continue to operate in the manner intended by the legislature.”[117]
[115] Chambers
[116] [2011] FCA 694; (2011) 55 AAR 188
[117] [2011] FCA 694; (2011) 55 AAR 188 at [32]; 196
169. Clearly, I am not reviewing APC’s obligation to provide suitable employment but, for the reasons I have given above,[118] I consider that APC could develop a rehabilitation program that included, as part of a suite of measures designed to assist an employee to recover capacity for work, a requirement that he or she be required to undertake work with the relevant employer that comes within the description of “suitable employment” as part of that program rather than work, tasks or activities, however described, more akin to vocational training or retraining. My consideration of the employer’s duty to provide that suitable employment throws some light on the approach that should be taken in considering the duties that an employee should be required to undertake in undertaking a rehabilitation program.
[118] See [141]-[143] above
170. Naturally, they must be appropriate to the employee’s capacity to perform the duties or to do so after appropriate training. His or her age, experience, training, language and other skills will also be relevant as will the other matters listed in s 37(3). Among those matters are any assessments under s 36(8). There are assessments dated 25 November 2008, 26 May 2009 and 23 February 2011[119] as well as an assessment by Dr Bloom of Mr Hull’s capacity for work. Although working within restrictions under the rehabilitation program, he was working full-time hours. That was intended to continue and necessarily reduced any future liability to pay compensation. There is no evidence of the cost of the program but, given that it is located at WDC, it would seem that a small, if any, cost would be incurred. Mr Hull would continue to be employed at the WDC on those duties at the completion of the rehabilitation program. Mr Hull, I find, is not dissatisfied with the content of the program; only the location at which it is provided.
[119] T documents; T16 at 21-22, T35 at 48-55 and T58 at 138-143
171. The place at which the employment is available is a relevant consideration both in the sense of whether an appropriate rehabilitation program would be available elsewhere and in the sense of his travelling to it. In considering both these matters, there are two matters to be taken into account. One is the place of residence of the employee and the other is the place at which the duties incorporated in the rehabilitation program can be undertaken. The latter raises issues as to where suitable employment is available. Both are matters of fact and if the fact is that they are in different places, that has to be resolved in some way.
172. In this case, Mr Hull resides in Ararat. His evidence is that there are no vacancies in APC in Ararat or in Ballarat, which are both closer to his home than WDC in Sunshine. That was not contradicted and, given their locations in regional Victoria, I am not surprised that this is so. Part of APC’s duty is to provide suitable employment but that duty has to be seen in the context of its statutory duties. Apart from its principal function being to supply postal services within Australia and between Australia and places outside Australia, it has a subsidiary function to carry on, outside Australia, any business or activity relating to postal services. In addition, it has further subsidiary functions to carry on business or activity that is incidental to either or both of those functions.[120] In other words, APC is carrying on a business as well as providing postal services. It must take reasonable steps to find employment within its structure but, as a business, operating in a regulated employment environment, careful thought has to be given to whether it is reasonable to expect it to create a position and employ a person when there is no position in its business model as is currently the case in Ararat and Ballarat. It has to consider the employment of those already employed and, in some cases, wider industrial relations issues.
[120] Australian Postal Corporation Act 1989; ss 14, 15 and 16
173. I have also considered whether the rehabilitation program should have been developed with the thought that an entity other than APC provided the venue in which the restricted duties would be performed. There is no evidence that there was any other such entity closer to Ararat than WDC or in Ballarat. It seems to me that, given that the rehabilitation program was the last of a number all directed to restoring him to his former work on a full-time basis and subject only to restrictions and limitations relating to his condition, it is reasonable that APC provide the venue in which the duties described in the program are performed.
174. In this case, I do not consider it reasonable to determine a rehabilitation program that effectively requires APC to provide duties at a place other than WDC, when there is no evidence that there would be employment at a place closer to Mr Hull’s home. In view of the medical evidence, Mr Hull has capacity to work even though his capacity is subject to restrictions and limitations so that he avoids activities such as bending and squatting. It is appropriate that he is required to work. As to the place at which he is required to undertake them, I am also satisfied that it is appropriate that he undertake them at WDC. This is the place at which he was employed before he was injured. It is the place at which he was required to undertake rehabilitation programs leading up to that time and he did so. It is the place where he can undertake the duties set out in the rehabilitation program because there is a position there for him. Certainly, it is not located close to Ararat but, whether he felt obliged to move because of financial reasons or for other reasons, Ararat is a place to which he moved voluntarily and, more importantly, has chosen to remain. He is at liberty to make that choice but I do not consider that APC is obliged to make arrangements so that he can carry out duties under a rehabilitation program at a place where it has no current position for him and has never had a position for him. Therefore, I have decided to affirm APC’s reviewable decision dated 16 April 2012 affirming its earlier decision dated 1 March 2012.[121]
[121] Application No. 2012/1946
CHRONOLOGY
175. The following table sets out the main events that have led to the present hearing. The five sets of determinations and reviewable decisions made by APC are distinguished and separated into their groups by differences in font.
Date
Event
Reference
7 November 2008
Mr Hull based at WDC first noticed muscular pain in his lower back when bending to deliver a letter.
T11 at 14 and T 21 at 30
12 November 2008
Mr Hull submitted an Incident Report
T11 at 14
14 November 2008
Mr Hull consulted Dr Richard Lunz who diagnosed lumbar back and left hip strain and stated that he was fit for full-time work subject to his lifting a maximum of 2kg, not engaging in repetitive twisting/bending or forceful pushing. Mr Hull had to alternate his sitting and standing and he was not permitted to ride a motorbike. Physiotherapy was prescribed.
T12 at 15
21 November 2008
Dr Lunz reviewed Mr Hull. He continued to restrict his lifting to a maximum of 4kg and did not permit Mr Hull to ride a motorbike. Physiotherapy was prescribed.
T12 at 15-16
26 November 2008
Mr Hull claimed compensation for lumbar back and hip strain.
T13 at 17-18
24 November 2008
APC referred Mr Hull for rehabilitation.
T14 at 19
25 November 2008
Work Solutions prepared an Initial Assessment Advice recommending that Mr Hull continue with physiotherapy and stretches and comply medical restrictions at both home and work. It prepared a Proposed Plan to Dr Lunz recommending that Mr Hull commence bike delivery.
T16 at 21-22
25 November 2008
Mr Hull, the Manager of WDC, the Rehabilitation Provider and the Rehabilitation Case Manager signed a “temporary program”. Mr Hull was to begin normal hours but with lifting restrictions. He was to undertake throw off duties and to pick up empty tubs throughout WDC. If he improved, he was to commence a one hour walking round.
T17 at 24
26 November 2008
Physiotherapy Management Plan proposed ultrasound, soft tissue and joint mobilisation techniques and strengthening and flexibility exercises in ten sessions over six weeks.
T18 at 25-26
11 December 2008
Mr Hull’s claim for compensation denied.
T20 at 28-29
12 January 2009 (approximately)
Mr Hull’s memory of date he leaves Sunshine and takes up residence in Ararat.
Mr Hull’s oral evidence
21 January 2009
Rehabilitation services ended as Mr Hull had resumed full-time duties and had reported no difficulties.
T22 at 31-32
6 February 2009
APC accepted liability for lower back strain – lumbo sacral, and left hip strain.
T23 at 33-34
19 February 2009
Mr Hull suffered an increase in low back and right hip pain when getting off his motorbike following a mail delivery.
T26 at 37
20 February 2009
Mr Hull consulted another medical practitioner at Dr Lunz’s practice. Medical certificate certifying Mr Hull fit for work from 5 January 2009 to 5 March 2009 noting that he was on a return to work program. Physiotherapy prescribed treatment.
T50 at 124
20 February 2009
Mr Hull consulted a physiotherapist, Mr Neufeld, on referral from his general practitioner.
T26 at 37
5 March 2009
Mr Hull consulted Dr Lunz who certified him fit for work from 5 March 2009 to 26 March 2009 according to the Return to Work Program and on a bike but without divides. Dr Lunz referred Mr Hull for an X-ray and to Mr Neufeld for physiotherapy.
T50 at 125
12 March 2009
Dr Steg reported on referral by Dr Lunz on X-ray of Mr Hull’s lumbar spine and right hip showing lumbar alignment to be normal and the lumbo-sacral disc posteriorly to be slightly narrowed with no associated bony spondylitic changes present at the level. Discs and joints otherwise normal.
T25 at 36
13 March 2009
Mr Neufeld noted that the injury appeared to be a recurrence of Mr Hull’s lower back pain and possibly a component of hip pain. He noted that the lower back pain is settling with treatment and that Mr Hull’s hip pain had, since he had been riding a newer motorbike that was a few inches higher, been less severe. He recommended a treatment plan extending from 20 February to 10 April 2009 and involving ten physiotherapy sessions focussed on mobilisation, exercise and postural advice.
T26 at 37
1 April 2009
A CT scan of Mr Hull’s right hip revealed a small posterior disc bulge at L5/S1 consistent with early osteoarthritic change in the hips. Further assessment was advised to determine any underlying pathology. Dr S Begg prepared the report at the request of Dr Lunz.
T27 at 39
9 April 2009
Mr Neufeld prepared a further Treatment Plan recommending a further eight physiotherapy sessions from April to June 2009 to treat Mr Hull’s lumbar spine and right hip.
T28 at 40
16 April 2009
APC accepted liability to pay for the ten physiotherapy sessions “from 20 February to 10 April 2009 for a total of 10 sessions, if required.”
T29 at 41
20 April 2009
APC accepted liability to pay for eight physiotherapy sessions from 15 April to 16 June 2009 if required.
T30 at 42
4 May 2009
Dr Lunz wrote to APC asking that Mr Hull be referred for an MRI.
T31 at 43
6 May 2009
APC advised Dr Lunz that it will meet the reasonable costs of an MRI of Mr Hull’s lower back and groin. Dr Lunz’s request was dated 4 May 2009.
T31-T32 at 43-44
18 May 2009
The report of the MRI prepared by Dr Travers Anderson and addressed to Dr Jim Tan at Sunshine shows bilateral cam deformities or femoral head/neck junction osteophytosis, bilateral acetabular labral tears/detachment and left hip joint cystic lesion. There was a question whether the scan showed a paralabral cyst and further MRI occult labral tearing or a ganglion cyst.
T33 at 45-46
22 May 2009
APC referred Mr Hull for an assessment of his capability to undertake a rehabilitation program.
T34 at 47
26 May 2009
Report by Mr Iain Kelman, Consultant Orthopaedic Surgeon diagnosing (1) Trochanteric pain syndrome left and right hips with the right worse than the left; and (2) Early degenerative changes at right hip secondary to a minor left upper femoral epiphysis. The hip conditions are pre-existing constitutional conditions.
T35 at 48-61
26 May 2009
Initial assessment advice recorded Mr Hull’s nominal work place as WDC and recommended that Mr Hull continue physiotherapy, comply with medical restrictions, continue restricted duties on the Return to Work Program and Work Services Australia continue to monitor his progress and liaise with his medical practitioner, surgeon and physiotherapist as required.
T36 at 62-63
26 May 2009
APC determined a Rehabilitation Program/Return to Work Plan. Mr Hull to work full-time with restrictions as to lifting, twisting, bending and squatting. He was not permitted to ride either a motorbike or a bicycle but it was possible that he could undertake a walking round.
T43 at 98
27 May 2009
Mr Yap, Orthopaedic Surgeon, writes to APC asked for approval to perform arthroscopic surgery to both of Mr Hull’s hips. In Mr Yap’s opinion, there was evidence of femoroacetabular impingement with associated labral tear. The surgery would debride or repair his labral tears as well as perform osteectomy of the femoral head-neck junction to improve his femoroacetabular impingement symptoms. Mr Yap recommended surgery on Mr Hull’s right hip first.
T37 at 64-65
1 June 2009
APC determined a Rehabilitation Program/Return to Work Plan. Mr Hull to work full-time with restrictions as to lifting, twisting, bending and squatting. He was not permitted to ride either a motorbike or a bicycle but it was possible that he could undertake a walking round. Mr Hull was advised that any entitlement to weekly payments of compensation will be assessed under s 37(5) of the SRC Act.
T38 at 66-68
9 June 2009
Mr Neufeld sent a Treatment Review Plan to APC.
T40 at 71-72
9 June 2009
A delegate of APC indicated that it is reasonable to make a determination that it is not liable to pay compensation for Lumbo Sacral and Left Hip Strain because, in light of Mr Kelman’s report, it is a congenital condition and did not arise out of or in the course of his employment. He gave Mr Hull 14 days to provide further information in support of his claim. If he did not, APC would make the proposed determination.
T39 at 69-70
9 June 2009
Mr Neufeld submitted a further Treatment Review Plan to APC on the basis that, in his opinion, Mr Hull’s condition was aggravated by his work.
T40 at 71-72
Undated
Mr Hull sought an extension of the 14 day period to 22 July 2009 as he had been unable to obtain an appointment with his specialist before 8 July 2009.
T41 at 73
8 July 2009
APC determined a Rehabilitation Program/Return to Work Plan. Mr Hull to work full-time with restrictions as to lifting, twisting, bending and squatting. He was not permitted to ride a motorbike and undertake occasional administrative duties.
T43 at 99
13 July 2009
APC determined a Rehabilitation Program/Return to Work Plan. Mr Hull to work full-time with restrictions and throwing off and other administrative duties as required.
T43 at 100
21 July 2009
Mr Hull submitted reports from Dr Castle (Occupational Physician) (dated 20 July 2009) and Mr Neufeld (dated 17 June 2009).
T42 at 74-83
11 August 2009
A physiotherapist and Senior Consultant with Work Solutions had a worksite visit with Mr Hull, who reported that he was still in a lot of pain. She noted that his general practitioner had written that he was fit to perform “full hours as able”. She noted that she had tried to find duties that would assist Mr Hull in the reduction of his symptoms and help him to sustain full hours. APC determines a Rehabilitation Program/Return to Work Plan. Mr Hull to work “Full hours as able” with restrictions as before. He was not permitted to ride a motorbike. He had to take breaks every 20 to 30 minutes and walk around WDC to stretch his legs.
T43 at 101 and 104
20 August 2009
APC referred Mr Hull to Mr Ian Jones, an Orthopaedic Surgeon, for examination and a report.
T43 at 93-104
25 August 2009
Mr Jones reported that Mr Hull suffers from femoroacetabulum impingement in both hips but that the condition was more symptomatic in his right hip than his left. The condition was a consequence of a slightly deformed femoral head and neck with associated bony protuberates on the neck of the femur impinging upon the edge of the socket. Mr Jones considered Mr Hull fit for full-time modified duties where there was no squatting or kneeling required or protracted periods during which he was required to keep his hips in a flexed or abducted position.
T43 at 86-92
7 September 2009
After considering reports of Mr Kelman and Mr Jones, APC made a determination that it was not liable to pay compensation to Mr Jull in respect of Lower Back Strain – Lumbo Sacral and Left Hip Strain.
T44 at 105-107
21 September 2009 and 15 October 2009
Mr Hull’s solicitors requested review of the determination dated 7 September 2009 and follow it with analysis of the evidentiary material.
T45 at 108-111
21 October 2009
Reviewable decision affirmed determination refusing liability.
T47 at 114-120
27 October 2009
Work Solutions prepared a Closure Report as Mr Hull on non work-related medical restriction policy due to non-work related restrictions.
T49 at 121-122
27 October 2010
Report by Mr M Khan, Orthopaedic Surgeon.
T141 at 355-364
1 December 2010
Mr Hull claimed compensation in respect of a right hip injury attaching medical certificates dated 20 February and 5 March 2009.
T50 at 123-125
2 December 2010
By consent, Tribunal affirmed reviewable decision dated 7 September 2009 in relation to lower back strain – lumbo sacral. In relation to his left hip strain, it decided that he was entitled to compensation under s 16 of the SRC Act but not entitled under s 19 as he had an ability to earn in suitable employment an amount equal to or greater than his normal weekly earnings.
T51 at 126-127
1 February 2011
APC determined that it accepted liability for bilateral hip strain.
T52 at 128-129
2 February 2011
Mr Yap wrote to APC requesting for approval to perform bilateral arthroscopic surgery on Mr Hull. Mr Yap notes Mr Hull’s address as Ararat.
T53 at 130
11 February 2011
APC determined that it accepted liability for Bilateral Hip Arthroscopy.
T54 at 131-132
15 February 2011
Mr Yap performed a Left Hip Arthroscopy. He found a Synovitis and performed synovectomy, a complex anterosuperior Labral Tear, a Chondral Flap tear acetabular rim, a Grade III-IV acetabular chondral loss with chondrolabral delamination and Combined Cam and Pincer Type Femoroacetabular Impingement. Mr Yap debrided the Labral and Chondral Flap tear and performed an Osteectomy of the antereosuperior acetabular rim and anterior head-neck junction.
T55 at 133-135
23 February 2011
APC prepared an assessment of Mr Hull’s capacity to undertake a rehabilitation program. He was assessed as unfit for work following his surgery.
T57 at 136-143
10 March 2011
Mr Mark Farrugia, a Remedial Massage Therapist working from a practice located in the Western Suburbs of Melbourne, wrote to APC stating that his treatment of Mr Hull consisted of deep tissue work to his hip thoracolumbar region through to his hamstrings, adductors, hip flexors and quads. Range of movement in Mr Hull’s hips was limited but there was some increase through massage as well as some pain relief in his gluteal, lumbar and aneterior hip region.
T60 at 144
31 March 2011
APC noted that Mr Hull had moved to Ararat but also that it will offer a return to work program so that Mr Hull could “return to work on whatever hrs-days” but “… will be offered at Western and only Western and if he doesn’t take it up then he wont [sic] be paid.”
T61 at 145-146
1 April 2011
In response to a proposal by APC that Mr Hull return to work on 13 April 2011 to seated mail sorting duties and other administrative mail related tasks either on a full or part-time basis, Mr Yap noted that he was to review Mr Hull on 20 April 2011 that he planned to commence with light duties with a gradual increase in those hours after review.
T62 at 148
12 May 2011
APC prepared a Rehabilitation Upgrade Program for Mr Hull to undertake duties. It comprised two stages. The duties related to miss-sorted mail, redirected mail, standard mail sorting throw off duties while seated. He might gradually return to short periods of standing as his tolerance for it increased. He was to work for four hours on each of five days per week in the first stage and increase to six hours in the second.
T66 at 153-158
31 May 2011
Mr Yap performed right hip arthroscopic surgery and labral take down and stabilisation osteectomy of acetabular rim and femoral Ganz lesion. He identified a right hip labral tear with combined pincer and cam type femoroacetabular impingement.
T69 at 162-163
28 June 2011
Mr Yap was asked to comment on a proposal that Mr Hull return to work on restricted duties on either a full or part-time basis. He commented that Mr Hull “Will benefit from a gradual return to full hours. Agree with duties as stated.”
T74 at 170
7 September 2011
Dr Deary of the Ararat Medical Centre noted that Mr Hull had been receiving physiotherapy, including hydrotherapy, as part of his rehabilitation from surgery. He felt that Mr Hull’s rehabilitation would also benefit from deep tissue massage.
T78 at 176
7 September 2011
APC wrote to Mr Hull advising him that, as at 31 August 2011, he had used 41.80 weeks of a maximum 45 weeks during which he could receive Normal Weekly Earnings (NWE) under s 19 of the SRC Act. After 45 weeks, he would be entitled to be paid only 75% of his NWE if fully incapacitated or other reduced percentages of NWE if he worked reduced hours.
T79 at 177-178
12 September 2011
APC approved physiotherapy treatment from 29 June to 29 September 2011 for a maximum of 30 sessions as required.
T81 at 181
12 September 2011
APC determined a further Rehabilitation Upgrade Program requiring Mr Hull to work at WDC for four hours each day undertaking the duties while seated as before. It commenced on 9 September 2011.
T82 at 182-186
6-11 October 2011
Mr Hull did not attend work on 5 or 6 October 2011 and his difficulties with his left hip were noted. His medical practitioner had recommended that he work five hours on each of three days followed by four days away from work. Mr Hull had reported that the long drives to and from WDC were also aggravating his injury and not helping his recovery but “He remains aware though that this is his home facility.”
T83 at 187
12 October 2011
APC made a further determination of a Rehabilitation Upgrade Program specifying that he work five hours a day for each of three days each week.
T84 at 190-192
4 November 2011
APC approved Mr Hull’s receiving massage therapy treatment from 13 September 2011 for a maximum of ten sessions and met the costs of his obtaining a three month gym/swim membership.
T87 at 195-198
11 November 2011
APC made a determination of a Rehabilitation Upgrade Program in terms similar to the previous program.
T89 at 199-203
7 December 2011
APC made a determination of a Rehabilitation Upgrade Program in terms similar to the previous program but with days beginning on Tuesday rather than Monday as before. That was to accommodate the difficulties that Mr Hull had in getting to work after a weekend of home duties and gym work on the days he was not at work.
T93 at 207-211 and see also T92 at 206
14 December 2011
Dr Julius Tamangani reported on an Ultrasound guided steroid injection in Mr Hull’s left hip on the basis of a diagnosis of “Left hip trochanteric bursitis”: “There were very minimal inflammatory changes of the left trochanteric bursa. Under ultrasound guidance, this was injected with a combination of 40mg Methylprednisoione and 1cc of Lignocaine 1%. Patient tolerated the procedure well.”
T107 at 252
20 December 2011
APC spoke with Dr Deary who had advised that Mr Hull’s hours should not be increased from five to six hours on three days each week at this time. Dr Deary reported that Mr Hull was genuinely wanting to work but had been struggling to undertake five hours.
T95 at 213
23 December 2011
APC referred Mr Hull for a rehabilitation assessment with Dr Michael Bloom, who is an Occupational and Environmental Physician.
T96 at 214-217
3 January 2012 (travel expenses)
APC refused Mr Hull’s claim for travel expenses incurred to attend medical appointments with Mr Yap.
T98 at 219
5 January 2012
APC made a determination of a Rehabilitation Upgrade Program in terms similar to the previous program but increasing the hours worked on each of three days from five to six.
T100 at 222-225
10 January 2012
Dr Bloom reported to APC. He considered that Mr Hull had a bilateral hip dysfunction that related to Cam deformity. He could work safely on a full-time basis provided he avoided squatting and prolonged motorbike riding or any other activity that involved frequent flexion or other extreme movement of his hips.
T101 at 227-242 and see also T102 at 243
16 January 2012
APC accepted liability to pay for up to ten sessions of deep tissue massage from 7 December 2011.
T103 at 244-245
27 January 2012
Dr Tamangani reported on an X ray of Mr Hull’s hips following bilateral hip arthroscopic surgery for cam and pincer impingement. “Findings: There is bony overgrowth at the junctions of the femoral head and neck bilaterally as well as bilateral acetabular overgrowth giving a picture consistent with mixed pincer/cam femoroacetabular impingement. No destructive bony lesion is seen. Mild loss of joint space and subchondral sclerosis bilaterally is consistent with early degenerative change.”
T107 at 253
1 February 2012
APC asked Dr Deary, as Mr Hull’s treating general practitioner, to respond to Dr Bloom’s recommendations and to the Rehabilitation Upgrade Program it had determined on the basis of that report.
T105 at 247-249
6 February 2012
Mr Hull’s solicitors request APC to reconsider its decision dated 3 January 2012 relating to travel expenses.
T108 at 254
9 February 2012 Included with request for review (1 March 2012)
Mr Yap wrote to APC setting out Mr Hull’s medical history relating to his hips and setting out further treatment that would be beneficial. This treatment is available only in Melbourne and then only by a small number of specialised surgeons.
T116 at 277
16 February 2012
Dr Deary responded to APC that Mr Hull should remain on limited working hours until his review on 22 February 2012. He had no objection to the duties.
T110 at 256-257
17 February 2012
APC made a determination of a Rehabilitation Upgrade Program in terms similar to the previous programs with six hours worked on each of three days.
T111 at 258-262
24 February 2012
APC wrote to Mr Hull advising him that, as at 15 February 2012, he had used 40.09 weeks of a maximum 45 weeks during which he could receive NWE under s 19 of the SRC Act. After 45 weeks, he would be entitled to be paid only 75% of his NWE if fully incapacitated or other reduced percentages of NWE if he worked reduced hours.
T112 at 263-264
1 March 2012 (RUP decision)
APC made a determination of a Rehabilitation Upgrade Program on a full-time basis with previous restrictions as to squatting and flexion of his hips.
T113 at 266-270
1 March 2012 (travel expenses)
Mr Hull’s solicitors request reconsideration of decision dated 3 January 2011.
T116 at 275-277
9 March 2012 (RTW decision)
APC made a determination that Mr Hull has been fit for full-time work on restricted duties since 5 March 2012. Any hours not worked were then regarded as non-compensable.
T118 at 280
15 March 2012 (travel expenses)
APC affirmed the determination dated 3 January 2012 refusing to reimburse Mr Hull’s medical expenses to see Mr Yap.
T121 at 284-285
21 March 2012
Mr Yap wrote to APC asking for approval for Mr Hull to undergo revision left arthroscopic surgery.
T122 at 286
22 March 2012
APC wrote to Mr Hull noting that he had not undertaken the requirements of his rehabilitation program. It asked him to give his reasons for not doing so. If he failed to provide a satisfactory explanation, his rights to compensation would be suspended.
29 March 2012 (RUP decision)
Mr Hull’s solicitors wrote asking that APC reconsider its determination dated 1 March 2012 regarding the Rehabilitation Upgrade Program.
T124 at 290-291
29 March 2012
Mr Hull wrote to APC giving his reasons for failing to comply with the Rehabilitation Upgrade Program.
T125 at 292
11 April 2012 (RTW decision)
Mr Hull’s solicitors request reconsideration of APC’s RTW decision. Grounds of request set out in letter dated 19 April 2012.
T126 at 293 T129 at 302
16 April 2012 (RUP decision)
APC affirmed the RUP decision dated 1 March 2012.
T127 at 294-296
17 April 2012
APC determined that Mr Hull commence rehabilitation according to the Rehabilitation Upgrade Program dated 1 March 2012 i.e. Stage 2 commencing on 17 April 2012 working full-time hours with restrictions as before and confined to full indoor activities and no deliveries.
T128 at 297-301
27 April 2012 (RTW decision)
APC affirmed determination dated 9 March 2012.
T130 at 303-306
17 April 2012
APC wrote to Mr Hull explaining that the RUP decision had been made in line with Dr Bloom’s report, that the Rehabilitation Upgrade Program would remain in place and that there would be no further rehabilitation at that stage.
T132 at 307
4 July 2012
Report by Mr Haig, Consultant Orthopaedic Surgeon, to APC.
T143 at 376-383
12 September 2012
Supplementary report by Mr Haig to APC.
T144 at 398-399
20 November 2012 (RLHA decision)
APC decided that it did not accept liability for the costs associated with Mr Yap’s undertaking a revision left hip arthroscopy.
T145 at 402
4 December 2012
In deciding not to accept responsibility for the further surgical costs, APC had obtained a report from Mr Haig dated 4 July 2012 and a supplementary report from him dated 12 September 2012. An APC delegate had formed the view that the effects of any aggravation of Mr Hull’s condition had been surpassed by the natural effects of the condition. APC offered Mr Hull an opportunity to provide further information before a determination was made in those terms.
T146 at 403-404
4 December 2012
Report of Mr Khan.
Exhibit A
8 February 2013 (RLHA decision)
Mr Hull’s solicitors requested reconsideration of the decision dated 20 November 2012 and received on 7 February 2013.
T147 at 405-406
13 February 2013 (NE decision)
APC determined that Mr Hull presently has no entitlement to compensation under either ss 16 or 19 of the SRC Act.
T148 at 407-409
27 February 2013 (NE decision)
Mr Hull’s solicitors requested reconsideration of the decision dated 13 February 2013.
T149 at 410-411
28 February 2013 (RLHA decision)
APC affirmed its determination dated 20 November 2012 refusing to accept responsibility for the costs associated with Mr Yap’s undertaking a revision left hip arthroscopy
T150 at 412-414
1 March 2013 (NE decision)
APC affirmed its determination dated 13 February 2013 that Mr Hull has no entitlement to compensation under either ss 16 or 19 of the SRC Act.
T151 at 415-418
I certify that the one hundred and seventy five preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,Signed: ....(sgd)........................................................
Leah Berardi Associate
Dates of Hearing 5, 6 and 7 August 2013
Date of Decision 5 September 2013
Counsel for the Applicant Mr Mark Carey
Solicitor for the Applicant Ms Jacinta Lewin
Maurice Blackburn
Counsel for the Respondent Mr Michael Snell
Solicitor for the Respondent Mr Damian Clarke
Clarke Legal
3
31
1