Begnell v Super Start Batteries Pty Ltd
[2009] NSWWCCPD 19
•26 February 2009
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| STATUS: Reported Decision: Begnell v Super Start Batteries Pty Ltd (2009) 8 DDCR 177 | |||||
| CITATION: | Begnell v Super Start Batteries Pty Ltd [2009] NSWWCCPD 19 | ||||
| APPELLANT: | Stephen Begnell | ||||
| RESPONDENT: | Super Start Batteries Pty Ltd | ||||
| INSURER: | CGU Workers Compensation (NSW) Ltd | ||||
| FILE NUMBER: | A1- 5229/08 | ||||
| DATE OF ARBITRATOR’S DECISION: | 6 November 2008 | ||||
| DATE OF APPEAL DECISION: | 26 February 2009 | ||||
| SUBJECT MATTER OF DECISION: | Effect of voluntary payment of weekly compensation; whether such payments amount to an estoppel; section 274 of the Workplace Injury Management and Workers Compensation Act 1998; weight to be given to an admission of liability; credit issues; relevance of worker’s criminal record; failure to determine factual issues in dispute; Clause 43 of the Workers Compensation Regulation 2003; admissibility of a Medical Assessment Certificate | ||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Gerard Malouf & Partners | |||
| Respondent: | Moray & Agnew | ||||
| ORDERS MADE ON APPEAL: | Paragraphs two, three and four of the Arbitrator’s determination of 6 November 2008 are revoked and the following orders made: “1. Award for the applicant worker under section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’) at the maximum statutory rate for a single worker from 14 February 2006 to date and continuing, as adjusted under Division 6 of the 1987 Act. 2. The respondent is to pay the applicant’s reasonable hospital and medical expenses under section 60 of the 1987 Act, upon production of accounts or receipts. 3. The respondent is to pay the applicant’s costs as agreed or assessed. 4. The matter is certified as complex and the parties are entitled to an uplift on their costs of 20%.” The orders made in paragraph one of the Arbitrator’s determination of 6 November 2008 are confirmed. | ||||
| The respondent employer is to pay the appellant worker’s costs of the appeal. | |||||
BACKGROUND
Super Start is a family business that has about 24 employees at different locations. Its directors, Arthur and Theo Trigas, are brothers who are both actively engaged in the company’s day-to-day activities at its main business location at Lansvale in Sydney. For convenience, I will refer to the brothers as Arthur and Theo.
Mr Begnell started work for Super Start as a storeman in 2001 and was promoted to warehouse manager a few months later. According to Mr Begnell, his duties required him to lift heavy batteries.
Mr Begnell alleges that as a result of his work he felt back pain in the 12 months up to July 2003 and that he complained to Arthur about that pain on at least six occasions. He also alleges that he complained to Arthur on Thursday 3 July 2003, that he had a bad back and he had been lifting too much over the three previous days. On 4 July 2003, Mr Begnell arrived at work and told Arthur, and other co-workers present, that he had a sore back and that he had been unable to pick up his dog’s droppings. Arthur allegedly told him not to lift anything.
At about 10am on 4 July 2003, Mr Begnell alleges that he bent to pick up a small automotive battery in the course of his duties and felt “razor blade like pains” down the back of his legs. He had felt this pain on other occasions. He alleges that Arthur and another worker, Ms Newcombe, were present when he experienced the razor blade like pains on 4 July 2003 and that he told Arthur that he could not walk anymore. Arthur asked him to attend the premises of a customer at Guildford (AAA Tyres (‘AAA’)) to pick up faulty batteries.
The witnesses from Super Start have a completely different version of every single factual issue in the case. In short, they state that Mr Begnell did not have to lift batteries, that he admitted he hurt his back while picking up dog droppings at his home and that he suffered no injury while working for Super Start.
After obtaining statements from several witnesses, Super Start’s workers compensation insurer, CGU Workers Compensation (NSW) Ltd (‘CGU’) made voluntary compensation payments from a date in September 2003 until 14 February 2006; it having declined liability by letter to Mr Begnell dated 2 February 2006.
In an Application to Resolve a Dispute (‘the Application’) filed in the Commission on 8 July 2008, and amended at the arbitration on 15 October 2008, Mr Begnell alleged that he injured his back and legs and developed anxiety and depression as a result of the nature and conditions of his employment with Super Start from 1 October 2002 to August 2003 and as a result of heavy lifting on 4 July 2003. He claimed weekly compensation in the sum of $774.00 per week from 13 February 2006 to date and continuing together with unspecified medical expenses.
By its Reply filed on 30 July 2008, Super Start confirmed the matters in dispute were those identified in the “dispute notice” attached. The only “dispute notice” attached was the letter from CGU dated 2 February 2006. That letter stated that liability was declined due to a factual investigation that stated that the “injury was not as a result of being work related”. It added:
“Our decision is based on:
Stating injury not work related and may have occurred before being employed with the company Super START BATTERIES [sic]. The witnessess [sic] provided evidence of the claimant endeavouring to elicit their support to the claim his injury [w]as workplace related. There were too many inconsistencies.”
Page two of this letter is not in evidence. Though I have real doubts about whether the notice served by CGU was a valid notice under section 54 of the Workers Compensation Act 1987 (‘the 1987 Act’), Mr Begnell did not challenge the validity of the notice and the arbitration proceeded on the basis that the notice complied with the legislation.
The matter proceeded to arbitration on 15 October 2008 when the Arbitrator heard lengthy submissions, but took no oral evidence. In a reserved decision delivered on 6 November 2008, the Arbitrator found in favour of Super Start on the basis that he was not satisfied that Mr Begnell had injured his back as alleged. By a Certificate of Determination dated 6 November 2008, the Commission recorded the Arbitrator’s orders as follows:
“1.That the Application to Resolve a Dispute is amended as follows:
a) Remove reference at Part 4 to a date of injury from May 2001 and replace this with a date of injury from 1 October 2002 to August 2003;
b) Amend the name of the Respondent by the addition of the words ‘Pty Ltd’;
c) Add a claim at Part 5.3 for section 60 of the Workers Compensation Act 1987 expenses for an unspecified amount;
d) Amend Part 5.2 to read weekly benefits claimed from 13 February 2006 (instead of 13 February 2003) to date and continuing.2.Award for the Respondent in respect of the claim for Section 60 of the Workers Compensation Act 1987 expenses.
3.Award for the Respondent in respect of the weekly benefits compensation claim.
4.No order as to costs.
I certify the matter as a complex matter and allow an uplift on costs to the Respondent of 22.5%.”
By an appeal filed on 1 December 2008, Mr Begnell seeks leave to appeal the Arbitrator’s decision and orders.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
There is no dispute that the monetary thresholds in section 352(2) are satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
THE EVIDENCE
Mr Begnell’s Lay Evidence
Mr Begnell’s evidence is contained in two statements, the first, dated 5 September 2003, taken from him by a person acting on behalf of CGU, and the second, dated 16 November 2005, taken by his solicitor. Mr Begnell’s evidence in his statement of 5 September 2003 may be summarised as follows:
(a)he obtained his position as storeman with Super Start through the Department of Corrective Services and he started work on 28 May 2001. His duties required him to open the factory, check on stock left over from the previous day, assist in hand loading batteries onto trucks, attend to outstanding orders, check on stock, attend on wholesale customers, take phone calls and discuss technical matters, fill batteries (known as the “wetting down process”), and maintain cleanliness in the factory;
(b)over the twelve months up to July 2003, Mr Begnell experienced pain in his back and mentioned that fact to Arthur on at least six occasions. Arthur responded by telling him not to lift and that he (Arthur) would take care of those particular duties (Mr Begnell’s statement of 5 September 2003, paragraph 7). Within a day or two his back would “come alright”;
(c)on Thursday 3 July 2003, he suffered from a bad back and told Arthur that he had “lifted too much for the three days prior” (Mr Begnell’s statement of 5 September 2003, paragraph 5). He estimates that he physically lifted twenty tonnes during the course of his work. Arthur replied that he would send Mr Begnell to see customers on the road so he would not have to lift anything. After 11am on 3 July 2003, Mr Begnell drove around the Liverpool area doing local deliveries to car dealers. This required him to lift car batteries, which weighed approximately 8-10kgs;
(d)when he arrived at work on the morning of 4 July 2003, Mr Begnell said to Arthur, and other people who were present, that he had a sore back and that he had “even been unable to pick up the dog shit in the backyard.” Arthur told him not to lift anything;
(e)after the trucks left the premises at about 10am on 4 July 2003, Mr Begnell went to check batteries on the battery charger. He bent down to pick up a small automotive battery at which time he “felt razor blade like pains down the backs of his legs”. He had previously experienced this pain, though precisely when is not disclosed in his statements. Arthur and another Super Start employee, Ms Newcombe, were “there” when he went to pick up the battery. He said to Arthur that he could not walk anymore and Arthur asked him to attend on a customer at Guildford (AAA) to pick up some batteries. Arthur asked Ms Newcombe to telephone AAA and inform them that Mr Begnell had hurt his back again and that he would not be able to lift the batteries;
(f)when he arrived at AAA that company arranged for the relevant batteries to be removed and Mr Begnell then checked them. At about 1 or 2pm he received a phone call from either Ms Newcombe or Arthur enquiring when he would be returning to Super Start. He expressed some doubt as to whether he would be able to drive. He then got another call from Arthur who said that there was no one available to pick him up. Mr Begnell then drove back to Super Start’s premises at Lansvale, where it took him about five minutes to get out of his vehicle, which he did in the presence of Arthur and Theo. He was then sent home with Ms Newcombe “to make sure that I arrived home safely” and because she lived near him;
(g)on 5 July 2003, he attended on Dr Vo, general practitioner, at Campbelltown who arranged for X-rays to be performed immediately and for a CT scan to be performed on Monday 7 July 2003;
(h)Mr Begnell returned to work on 7 July 2003 and reported that he was still in pain and he was told not to lift anything. He left work early for his CT scan appointment;
(i)he again attended work on 8 July 2003, but again did not perform any lifting duties. That afternoon he again saw Dr Vo who wrote a letter to Liverpool Hospital to have him admitted as he was having trouble controlling his bladder;
(j)he attended at Liverpool Hospital that evening and was referred to Dr Sheridan;
(k)at some stage he took the referral letter and a medical certificate from Dr Vo to Super Start. Arthur and Theo said they would look after him and that he would “be coming back to the company no matter what” (Mr Begnell’s statement 5 September 2003, paragraph 16);
(l)Mr Begnell was away from work on 9, 10 and 11 July 2003. On the weekend prior to 14 July 2003, Mr Begnell received a phone call from Craig Walsh, Super Start’s financial controller, asking him to return to work on 14 July 2003. Mr Begnell did attend at work on 14 and 15 July 2003, but left early on the 15th as his back was deteriorating;
(m)Mr Begnell’s statement suggests that his initial certificate was not a WorkCover certificate. Though he told the doctor it was work related, Mr Begnell did not know “what a work cover [sic] certificate was, as opposed to a normal certificate.” He did not become aware of what a WorkCover certificate was until 16 July 2003, when he spoke to a family member. He saw Dr Vo on 16 July 2003 and “got him to alter it to workers compensation” and he took that certificate to Super Start that week when he picked up his pay;
(n)also in the week of 16 July 2003, Mr Begnell spoke with Arthur and told him he was seeing a surgeon on 11 August 2003. At this stage Mr Begnell picked up his wage (paid as sick leave) from Super Start on Saturdays. On one of these occasions he was given a laptop computer to do a cross reference chart for motorcycle batteries while at home;
(o)when Mr Begnell picked up his pay on 9 August 2003, Arthur said that he could not continue to pay sick leave. Mr Begnell replied that it was “workers compensation” to which Arthur said he would talk about it through the week;
(p)Mr Begnell attended a surgeon on 11 August 2003 and was advised to walk for up to one hour per day. He then attended on Dr Vo and obtained a certificate for suitable duties and returned to work on 12 August 2003 and gave that certificate to Arthur who “went off” about Mr Begnell still handing in workers compensation certificates;
(q)Mr Begnell worked on 12, 13 and 14 August 2003 and saw Dr Vo on 15 August and has not returned to work since;
(r)Mr Begnell’s ususal duties involved lifting batteries weighing between 8 and 85 kgs every day in the course of his work (see Mr Begnell’s statement 5 September 2003, paragraph 24), and
(s)in 1999 Mr Begnell sustained an undisclosed crack fracture of his sacrum when he was involved in a motorcycle accident from which he made a full recovery.
Mr Begnell’s evidence in his statement of 16 November 2005 is to the following effect:
(a)in or about July 2003 he was “hand loading batteries onto the truck for Ultimate Delivery” when he felt a sharp pain in his “back area” (see Mr Begnell’s statement 16 November 2005, paragraph 4). Both Theo and Arthur were present at the time of his injury and were advised of the injury on the day it happened. His co-workers were also present on that day;
(b)Mr Begnell felt pain in his “back, right and left leg area”. Theo then directed Mr Begnell to collect batteries from AAA, though that was not an activity he had ever previously been asked to do. A person from AAA assisted him with loading stock into Super Start’s vehicle;
(c)Mr Begnell’s back pain had increased to such a level that by 3pm he did not feel confident to drive back to Lansvale so he rang his employer and asked for someone to pick him up;
(d)that evening he attended on Dr Vo who immediately arranged for a scan and pain medication;
(e)his employers expressed concern that his work injury would increase their premiums;
(f)on or about 14 August 2003, Dr Vo certified Mr Begnell totally unfit for any work;
(g)the insurer has been paying his medical expenses and weekly benefits;
(h)in or about June/July 2004 Mr Begnell was “quite surprised and shocked” to receive an apprehended personal violence order (‘AVO’) taken out against him by Theo. The order required him to stay away from Theo’s home at Lansvale as well as his place of business at Lansvale;
(i)Mr Begnell attended court in respect of the AVO, but Theo did not attend and the application was dismissed;
(j)on or about 14 September 2004, Mr Begnell again received an AVO from Theo. He sought advice from his solicitor and the matter was listed for mediation on 2 December 2004. Theo again failed to attend and in February 2005 the matter was dismissed with an order that Theo pay Mr Begnell’s costs;
(k)Mr Begnell admits that in the past he has not been “the most perfect of citizens” (Mr Begnell’s statement 16 November 2005, paragraph 25), but has reformed his way of life. He has been monitored by the Parole Board and made great effort to keep himself “on the straight and narrow”, and
(l)Mr Begnell denies having done anything to Theo that would justify the issuing of an AVO.
On 20 August 2003 Mr Begnell submitted a claim form in which he alleged his injury occurred at 10am on 4 July 2003 when he was “lifting of [sic] batteries” and he injured his “lower back”. The description of injury is “prolapsed discs”. The injury is described as having occurred at “warehouse floor, Super Start Batteries” and the witness is said to have been Ms Newcombe.
On or about 9 September 2003, Mr Begnell’s solicitor made a complaint to the WorkCover Authority of NSW (‘WorkCover’) in the following terms:
“The employer failed to provide Mr Begnell with the appropriate workers compensation forms and failed to advise him and assist him in seeing a doctor immediately for the purpose of being assessed and obtaining a WorkCvoer [sic] medical certificate, directed and instructed the employee to sign WorkCover documents which documents would have been fraudulent, failed to ensure that his worker [sic] comp claim was lodged with the CGU, received WCA medical certificates and failed to forward thos [sic] onto CGU.
The solicitors requested that this employer be investigated on the basis that they have clearly failed to look after the interests of Mr Begnell and advise him of his rights.” (see WorkCover WSMW Complaint Report – 1- 31665 dated 3 October 2003 (‘the WorkCover complaint’))
The WorkCover complaint states, under “Actions” on page 2, “Hi Grant. Same workplace and similar complaint details as WSMS 31452.” A WorkCover inspector visited Super Start on 15 September 2003 and spoke with Mr Walsh who said he had been dealing with Inspector Greg Maddaford who instructed him how to deal with Mr Begnell’s claim. Mr Walsh also alleged that the injury sustained by Mr Begnell occurred at home and not in the workplace, Mr Begnell did not report the injury and contacted CGU insurance directly. As a result, Mr Walsh was reluctant to pass on information to the insurance company. At the time of the visit on 15 September 2003, Mr Begnell was receiving appropriate compensation payments and all associated documentation had been forwarded to CGU. The WorkCover inspector recommended that no further action be taken.
In support of his claim, Mr Begnell relies on statements from Mr Kriaris, the owner of AAA Tyres, Mr Bailey, a co-worker of Mr Begnell’s at Super Start, a ‘case note’ from Stephen Grant, case manager supervisor, dated 29 January 2001, and a ‘performance report’ from Leanne Scott, correctional officer, dated 26 February 2001. He also relies on certain letters from Super Start said to demonstrate the company’s acceptance of his claim, and on court documents relating to the AVO sought by Theo.
Mr Kriaris’ evidence is set out in his statement of 12 December 2006, which may be summarised as follows:
(a)one of his staff members received a phone call on 4 July 2003 from a representative of Super Start’s informing them that one of its employees (Mr Begnell) was coming over to retrieve defective stock, but as he had injured his back whilst working could AAA Tyres arrange for someone to assist him in loading the batteries;
(b)Theo had in the past said how dedicated Mr Begnell was to his duties and that he was able to do all of the duties the past storeman had done and also pick and pack all CITIC Australia Commodity Trading orders by himself;
(c)when Mr Begnell arrived at AAA he was in great pain and could hardly move without obvious discomfort;
(d)after arriving at AAA at about 10am, Mr Begnell lifted each battery himself whilst checking for external damage, checking fluid levels and load testing in order to determine if they were faulty before returning them to Super Start. These batteries weighed between 8 and 80kgs;
(e)Mr Kriaris did not feel that Mr Begnell would be able to drive back to Super Start and he had one of his employees load Mr Begnell’s vehicles whilst Mr Begnell called Super Start to request someone to drive him back;
(f)about eighteen months ago, Mr Kriaris received a visit from Troy Drummond, a former employee, who was a close friend of Theo’s and who was then working for Super Start. Mr Drummond said he wanted to return to work for AAA because Mr Walsh, Theo and Arthur were forcing him to “fabricate a false statement about Steve Begnell, as revenge for Steve not blaming another company (namely mine) for how he injured himself in the course of his duties”.
In his statement of 22 March 2007, Mr Bailey’s evidence is that Mr Begnell would help each driver to manually unload his truck and put the batteries onto pallets so they could be placed in the warehouse. If batteries were faulty and claims were made under warranty, Mr Begnell had to manually take them to be tested. When new stock arrived, the batteries had to be fuelled with acid and charged. Mr Begnell did that work on most days. In order to charge batteries it was necessary to manually lift the batteries from pallets and place them on a workbench. They were then filled with acid and manually lifted from the waist high bench and placed on another pallet. On average, 200 to 300 batteries were charged each night. Mr Bailey performed this task on occasions and expressed his relief that that was not part of his regular duties because it was hard work having to lift and charge the batteries. He added that there was no lifting equipment available to move the batteries from the pallet onto the workbenches or to return them to the pallets. Similarly there was no lifting equipment for moving batteries from the pallets onto the trucks.
Mr Bailey was unhappy with Theo, Arthur and Mr Walsh as they did not honour an agreement to pay him a certain salary and they also claimed that he was a casual when he was in fact a permanent employee.
On 10 May 2004, Super Start wrote to Mr Begnell offering him a fulltime office position with the company at the same salary he was on prior to ceasing work. The letter added that should Mr Begnell become medically capable of returning to his pre-injury duties, he would be given a choice of whether to remain in the office or return to those duties. The company was willing to install any necessary special equipment at no cost to Mr Begnell. By letter dated 6 April 2004 from Rhonda Freestone, probation and parole office, to CGU the Department of Corrective Services directed that Mr Begnell was not to return to any employment with Super Start in any capacity.
In a second letter dated 10 May 2004, Mr Walsh wrote to CGU enclosing a copy of the letter he had forwarded to Mr Begnell. He added that Super Start was offering Mr Begnell an office position and had been holding the position open for him “at significant financial loss since December last year.”
On 10 May 2005, Mr Walsh wrote to Michelle Ardinghi, at Quality Occupational Health, referring to a Functional Capacity Assessment dated 3 May 2005. Having regard to the assessment, the directors of Super Start agreed to:
(a)offer Mr Begnell a part time clerical position in accordance with the recommendations of the assessment and to allow him to work as little as one hour per week and to be able to rest whenever required;
(b)to organise and pay for any special transport needed to accommodate Mr Begnell’s introduction back into the workforce, including special transport vehicles if needed;
(c)to purchase a sit/stand workstation for Mr Begnell as per the assessment report, and
(d)organise to take Mr Begnell to a supplier of such equipment so he may choose the most comfortable and appropriate workstation and any other special equipment needed.
In respect of the AVO that Mr Begnell alleged had been taken out by the company, Mr Walsh stated, “Super Start Batteries Pty Ltd has never taken out such an order.” He added, however, that Mr Begnell had assaulted a company employee and that employee made an application for a restraining order against him. That matter “was dealt with by way of mediation through the Department of Community Services and subsequently the application for restraining order was withdrawn.”
In general support of his character and physical fitness before starting work with Super Start, Mr Begnell tendered a ‘case note’ from Mr Grant and a report from Leanne Scott. Mr Grant’s exact position is unclear but I assume he is either a probation and parole officer or holds some other position with the Department of Corrective Services. His ‘case note’ of 29 January 2001 related to Mr Begnell’s conduct at the Oberon Young Offenders Correctional Centre on 21 June 1998 as a “Nucleus adult inmate”. The case note was in glowing terms and described Mr Begnell’s performance as excellent, he having undertaken the role of a Nucleus inmate with enthusiasm and pride. On numerous occasions Mr Grant observed Mr Begnell go out of his way to assist a fellow inmate, resulting in a positive outcome. Mr Begnell’s interaction with staff at Oberon had always been very good and his participation on numerous wilderness expedition camps with the arrival of young offenders was always above average to excellent. Mr Begnell could be relied upon to undertake unsupervised tasks given to him and he assisted in the medical evacuation of an inmate and in the preparation of wilderness activities both at the Centre and in the bush.
Mr Begnell also performed community service in Oberon at a retirement home and his interaction with the staff and the elderly at the home was always polite and courteous. Mr Grant believed that Mr Begnell was capable of successfully achieving any task he set himself whether on work release, weekend leave or in the institution.
Leanne Scott’s report in respect of Mr Begnell’s involvement in wilderness expeditions was also in glowing and positive terms. In Ms Scott’s opinion, Mr Begnell always displayed himself as a mature and compassionate man who had a genuine concern for his fellow inmates, especially the young. She considered that the Salvation Army VITEL Wilderness Programme would benefit from Mr Begnell’s wilderness and mentor abilities.
Super Start’s Lay Evidence
Super Start’s lay evidence is set out in statements from Mr Walsh dated 5 September 2003, 15 September 2003 and 14 July 2005, Kelly Windshuttle dated 5 September 2003, Ms Newcombe dated 10 September 2003, Troy Drummond dated 21 July 2005, Theo dated 15 September 2003 and 4 August 2005, and Arthur dated 5 September 2003 and 18 August 2005. In an attempt to approach the matters in some logical order, I will set out the evidence in chronological order.
Arthur provided an unsigned statement to CGU’s investigators on 5 September 2003. The content of that document can be summarized as follows:
(a)on Friday 4 July 2003, Arthur arrived to open the factory. Most of the staff, including Mr Begnell, had already arrived and were waiting for him. Before he opened the factory, Mr Begenll said to Arthur words to the effect, “Do you believe this, I have hurt my back picking up dog shit.” “Craig, and Doc, Troy, and Julie, and Jo” heard this comment. After opening the factory Arthur told Mr Begnell to take it easy and to count off the stock;
(b)because he had complained of his back, Arthur would not let Mr Begnell on the factory floor for the day. He sent him to AAA at Guildford to sort out some warranties. Mr Begnell returned at around lunchtime and said that his back was still sore. Arthur then sent him home;
(c)on 7 July 2003, Mr Begnell said that his back was still sore and Arthur told him to take it easy and got him to count off the trucks again. He would not let him lift anything and he (Arthur) worked on the factory floor and did all the work. Mr Begnell left work at about 4pm to see his doctor;
(d)Mr Begnell returned to work with his wife on 8 July 2003. He explained that he had rent and bills to pay and needed work, as it was part of his parole that he had to be employed. Arthur told him to go home and to get himself right. Mr Begnell was off work for five weeks, but on each Saturday he would turn up to pick up his pay;
(e)on the fifth Saturday (9 August 2003), Arthur inquired what was happening. Mr Begnell said he was seeing a neurosurgeon on the following Monday and if he got a clean bill of health he would be back at work;
(f)during the five weeks he was off work, Mr Begnell purchased a Hyundai Sports. Arthur asked Mr Begnell to do a course and learn solar panelling while he was off work, but Mr Begnell said he was busy driving his step-son or another member of his family;
(g)Mr Begnell returned to the warehouse on Monday 11 August 2003 and said he was given the okay and did not have to have surgery. The neurosurgeon told him to walk it off and he returned to work on light duties. Mr Begnell worked three days counting off trucks in the morning, but there was an obvious personality change and he was complaining to everyone that the company did not appreciate him;
(h)on 14 August 2003, Mr Begnell attempted to pick a fight with Theo and told Theo to “stick his job” and he left;
(i)when Mr Begnell came into the warehouse with his wife on 8 July 2003, Arthur questioned him about how he had really received his injury. Arthur said to Mr Begnell that the injury was “due to him having arguments with his wife.” Mr Begnell said “on the quiet” that that was the truth but he could not say that was the real reason in front of the blokes at work. Arthur knew that Mr Begnell was always having arguments with his wife and that he would go down the yard and throw things around;
(j)Arthur denied ever instructing Mr Begnell to falsify any documents or to pretend that he sustained an injury at any of Super Start’s customer’s premises;
(k)about twelve months ago, Super Start ceased to have CITIC as a supplier and it was “at that time he [Mr Begnell] would [have] stopped lifting batteries within the factory”;
(l)on one occasion Mr Begnell came to work complaining of a back injury. He said he had injured himself by moving furniture when he moved from Casula to Campbelltown, and
(m)Arthur denied that Mr Begnell had reported a back problem on six occasions in the previous twelve months.
Mr Walsh also appears to have given an unsigned statement to CGU’s investigators on 5 September 2003. The main features of that statement are:
(a)Mr Walsh was Super Start’s financial controller. A position he had held for eighteen months;
(b)when batteries had to be lifted they were lifted one at a time. Two people would lift the heavier truck batteries;
(c)on the morning of 4 July 2003, he was standing outside the warehouse waiting for it to be opened when he heard Mr Begnell say to Arthur that he had hurt his back picking up dog shit at home. Also present were Troy Drummond and Fomai Tuilata;
(d)about two weeks earlier (presumably two weeks before 5 September 2003), Mr Walsh became aware that Mr Begnell had lodged a workers compensation claim. Prior to lodging his claim, Mr Begnell was off work and Super Start paid him his full wages as sick leave, and
(e)once he lodged his claim, Mr Begnell telephoned Mr Walsh on a regular basis enquiring about his payments. Mr Walsh received a cheque from CGU on Monday 1 September 2003, and he forwarded it to Mr Begnell on that day.
Kelly Windshuttle provided a signed statement on 5 September 2003. At that time Super Start had employed Mr Windshuttle for just over two months as a driver. He has known Mr Begnell for most of his life. When he was about 12 years of age, in 1982, he was aware that Mr Begnell had “broken his back in a motorcycle accident” and was in hospital for a long time. A couple of years later, Mr Begnell was involved in an incident when he was a passenger in a panel van and he was in hospital for a couple of months again due to a back injury.
Ms Newcombe provided a signed statement on 10 September 2003 to the following effect:
(a)she started in Super Start in May 2002 and got to know Mr Begnell as they would chat when she left the office for a cigarette break. In early 2003, she started to “carpool” with Mr Begnell and another employee in order to drive to and from work;
(b)she could not recall specific dates, but she had been told that “the official date when Steven [sic] sustained an injury was the 4 July 2003.” She recalled that a short time before that he made comments in general conversation that he had a sore back;
(c)with regard to the specific date of 4 July 2003, she recalled that it was just before or just after a new computer programme had been fitted. She went into work on a Saturday to catch up. She went outside to talk to Mr Begnell who was picking and packing a large order of batteries and “was really complaining of his back then.” She added he would “pick up a battery and place it down, and I would see him stop to rest after doing each one and making verbal noises to express his pain. I told him to take it easy, have a coffee, but he would always be saying that he had to get this work done”;
(d)she added at paragraph 5 of her statement, “When it got really worse with the pain Steve would take it easier at work. This would have been towards the end of July, beginning of August, I’m not really too sure”;
(e)she said that the “main incident”, which she really did remember, was when Mr Begnell went to AAA to check the warranties. She was 97% sure that she “had to telephone AAA to let them know about Steve’s back” and if it was not her who called them then it was another woman in the office, named Mary;
(f)it was explained to AAA about Mr Begnell’s back and that he could not lift batteries. Whilst Mr Begnell was at AAA, he called the office and asked for someone to pick him up;
(g)it was either the day before this or within that week, Mr Begnell had to go to Sydney Motors to check batteries. He was sent because Arthur and Theo knew that his back was hurting and they had to give him something to do;
(h)Ms Newcombe said at paragraph 9 of her statement, “I knew that Steve’s back was playing up at work, it was on the day that he went to AAA, that he was at home, and he was picking up the dog crap out the back and his back went. When Steve told me this I remember making a comment to him that he could have been tying his shoe laces coming to work and it would have been the same thing”;
(i)when Mr Begnell was off work with his back, he would still come in and count the trucks. He also entered the codes for motorcycle batteries into a computer at his home;
(j)she never discussed the claim with Arthur or anyone else;
(k)her last day of work with Super Start was 15 August 2003. That was the week when Mr Begnell returned to work and there was “tension in the factory”, and
(l)on 14 August 2003, Ms Newcombe heard a conversation between Mr Begnell and Theo at about 4pm. Mr Begnell was only supposed to work up until midday and he wanted to go home. Theo said to him “you are on workers comp, you are no good to me”. Mr Begnell replied, “I have put my back out slaving for you, what do you want me to do?”
Super Start also relies on a statement given by Theo to the police on 15 September 2003. The essential matters dealt with in this statement are as follows:
(a)at about 3.30pm on 14 August 2003, Mr Begnell asked Theo if he could leave early as he did not wish to be stuck in peak hour traffic. Theo agreed;
(b)during the previous three days, Theo had noticed that Mr Begnell had been angry and he therefore avoided him and kept his conversation as brief as possible. Mr Begnell said, “Have you got a problem with me?” Theo said that he did not and walked into the office out of sight;
(c)Mr Begnell approached the office and said, “Come out here, I want to talk to you, I have a problem and want to resolve it”. Theo ignored that comment and attempted to phone his brother as he “knew there was going to be trouble”. The secretary (Ms Newcombe) said, “Steve, he is behind the cabinet”. Theo then approached Mr Begnell and the following exchange took place:
Theo: “What’s wrong.”
Mr Begnell: “Do you have a problem with me?”
Theo: “No I don’t have a problem.”
Mr Begnell: “You don’t want me here.”
Theo: “That’s not true.”
Mr Begnell: “It feels like you don’t want me here.”
Theo: “We are paying you aren’t [sic] we.”
Mr Begnell then started talking about his back, which had previously been injured.
Mr Begnell: “My back hurts, its not like breaking your finger. I am on light duties, I am only supposed to be working 4 hours.”
Theo: “You do what you want.”
Mr Begnell: “Do you have a problem with me being on light duties?”
Theo felt like Mr Begnell was urging him on, trying to aggravate him. As the conversation progressed, Mr Begnell raised his voice and became more aggressive.
Theo: “We are not responsible for you being on light duties.”
This made Mr Begnell angry and he took an aggressive stance.
Theo: “Can you stop looking at me like that?”
Theo felt intimidated and took half a step back.
Theo: “Can you stop looking at me like that?”
Mr Begnell then lunged forward and placed his left hand around Theo’s throat. As he did that he raised his right hand with his fist clenched and said “You fucking maggot.”
Mr Walsh then came out of the office and said “You know what your doing. Stop it your are going to go to goal.”
Theo: “Back off leave me alone.”
Arthur then grabbed Mr Begnell from the collar and pulled him back. Mr Begnell then left with Theo’s secretary “Julie” (Ms Newcombe).
Mr Walsh also gave a statement to the police on 15 September 2003 in which he substantially corroborated Theo’s version of the events on 14 August 2003. He confirmed that he and Ms Newcombe were in the office when Mr Begnell asked Theo to come out and “sort it out”. Mr Walsh heard Theo say to Mr Begnell “Steve don’t look at me like that”. He started to turn around and he saw Theo walk back past the doorway and saw Mr Begnell grab Theo by the throat with both hands and then draw back his right hand while having Theo pinned against the counter. Mr Begnell and Ms Newcombe left together and she resigned the following day.
Mr Walsh also signed a statement on 14 July 2005. The essential matters dealt with in that statement are as follows:
(a)Mr Begnell commenced employment with Super Start on 12 June 2001, approximately six months before Mr Walsh started. His main duties were to fill batteries with acid, operate a forklift, stack pallets on shelving and prepare batteries for shipment and distribution;
(b)the warehouse at Lansvale is relatively small and only employed three storemen and Mr Begnell as the manager. Because of a previous back injury, Mr Begnell did not have responsibility for the manual handling of the normal car and truck batteries;
(c)on a day Mr Walsh could not recall, Mr Begnell said to him that he had received “this particular back injury during the course of his prison sentence, during a riot, I think he said at Longbay.” Mr Begnell said that he had been hit in the back with a “gas gun” and that he was hospitalised;
(d)Mr Begnell appeared to be inept at his work as the warehouse manager and lacked the skill to manage his work and his staff who had no guidance. On more than one occasion a stack had to be destroyed because its useful life had expired. This amounted to between $2,500.00 - $5,000.00 on each occasion;
(e)Mr Walsh approached both Theo and Arthur on a weekly to fortnightly basis to convince them to put Mr Begnell on the floor or as a delivery driver and to employ somebody else as the warehouse manager;
(f)on one morning, probably around two months prior to 4 July 2003, Mr Walsh was at the front of the warehouse waiting for Theo and Arthur to arrive and open the building. Mr Begnell was also present and he complained of a sore back and said that it happened at home lifting dog shit before coming to work;
(g)sometime in the weeks following that statement by Mr Begnell, Mr Walsh was in the kitchen area making a cup of coffee and Mr Begnell approached him requesting him to submit a workers compensation form for him for his back injury. Mr Begnell said, “If I take care of you, will you be a witness for me?” Mr Walsh replied “No”;
(h)on a Friday a few weeks later, Mr Walsh was in the warehouse kitchen when Mr Begnell was speaking with Arthur. Mr Begnell said that he couldn’t work in the factory because of his back. Arthur told him to take time off and come back in sales or he could design the catalogues, when he was ready;
(i)from that day, Mr Begnell took one month off on full pay which was not recorded as sick leave. About a month later Mr Begnell wanted to return to work. Theo and Arthur requested that he get a report from a doctor indicating that his back was better. Mr Begnell returned with a report from a doctor indicating that he couldn’t lift more than 2kg. He worked for three days and on the third day, 14 August 2003, he was very agitated and was following Theo around. On the afternoon of 14 August 2003, Mr Walsh saw Mr Begnell confront Theo in the warehouse and grab him by the throat. Mr Walsh told him to stop. Mr Begnell was abusive and left the office and the warehouse, driving off in his car with the tyres screeching, and
(j)the first knowledge Mr Walsh had that Mr Begnell claimed an injury as a workplace injury was when WorkCover rang up within four weeks of him leaving, wanting to know why Mr Begnell was not being paid. Mr Walsh had no knowledge of Mr Begnell having received a workplace injury so he contacted CGU and they forwarded a copy of the claim form submitted by Mr Begnell.
Troy Drummond signed a statement on 21 July 2005. His evidence may be summarised as follows:
(a)he started work as a delivery driver with Super Start in either late 2000 or early 2001. When Mr Begnell was promoted to warehouse manager, Mr Drummond moved into the warehouse as a storeman in 2002. He became good friends with Mr Begnell and had a close working relationship with him, but found it frustrating that Mr Begnell took no responsibility. All of the organising and manual lifting work was left to Mr Drummond. Mr Begnell did very little of the manual handling and was more a delegator than a worker. Mr Drummond did the manual work and others employed in the warehouse left after a short time because of the work being put on them. There wasn’t much manual lifting because forklifts and pallet jacks did all the lifting. Any manual lifting involved carrying a battery that weighed between 9 and 14kgs. Motorbike batteries weighed a lot less;
(b)Mr Begnell bragged to Mr Drummond about his sore back and how he injured it. The first time was in a motorcycle accident when the bike went over and he broke his back. The second time occurred during a riot in jail and one of the prison officers fired a gas canister that hit him in the back;
(c)Mr Drummond helped Mr Begnell move house because he couldn’t do anything as a result of this bad back;
(d)at paragraph 8 of his statement, Mr Drummond said:
“Steve and I were close friends. He never injured himself at work. If he had injured himself he would have told me. Anyway he didn’t really do any work, three other staff here were carrying him. He burned them out and they left. I remember how he injured his back. Probably in April or May 2004 we got into work early. Steve and I and some others were there, I don’t exactly recall who it was but we were congregated in the warehouse, Steve was talking about his sore back and mentioned that he had injured it at home picking up after his dog before he came to work. I remember he said, ‘I bent over and that was it.’”
(e)sometime after this conversation Mr Begnell had a month off work because of his back. During this time he invited Mr Drummond and his girlfriend to his house for dinner. At dinner, Mr Begnell asked Mr Drummond to be a witness so he could claim the injury to his back as a work injury. Mr Drummond declined to do so because it was not correct, and
(f)after Mr Begnell left, Mr Drummond took over as warehouse manager. It was in a great mess, the place was dirty, old and new stock was mixed together, batteries that had been returned under warranty had been stacked up and nothing had been done about them. Further, orders had not been filled and were delayed and batteries that were due to go out had not been filled with acid.
The main points in Theo’s statement of 4 August 2005 are:
(a)Mr Begnell’s first job was to fill batteries with acid. The batteries would be placed on pallets that had been positioned on the ground by a forklift. The warehouse has two forklifts and two pallet jacks for moving pallets of batteries. No one was expected to move them manually;
(b)Mr Begnell was promoted to warehouse manager upon the resignation of another employee;
(c)over the next twelve months the warehouse slowly deteriorated. Customers complained about waiting times, orders not being ready, shortage of product in the orders and even excess product in the orders. One wholesaler was lost and that was worth about $500,000.00 to the business. Over time, Mr Begnell’s behaviour became very erratic;
(d)in late 2002 or early 2003, Theo approached Mr Begnell and advised him that he was not happy with the way the warehouse was running and that the job was not right for him. Mr Begnell said that he had “broken his back in the past”. He pleaded to be kept on because if he wasn’t he would have to go back to jail and serve the rest of his sentence. Theo offered Mr Begnell other positions in the business, such as phone sales and a TAFE course as a solar technician and in graphic design, but Mr Begnell did not respond to those offers;
(e)in April 2003 Theo arrived late for work and Mr Begnell and other staff members were waiting for the warehouse to be opened. Theo opened the warehouse and went inside. Mr Begnell said to him “I’ve hurt my back”. Theo enquired how and he said “picking up dog shit in the backyard”. Theo went to the lunchroom and made himself a cup of coffee. Whilst there Mr Begnell came in and Theo said “What really happened?” Mr Begnell said “woman problems. I was kicking and throwing things around.” Theo could see that Mr Begnell was upset and told him to go home. Mr Begnell said, “I don’t want to go home because my wife’s there and we’ll keep on fighting. I’ll do the AAA warranties”;
(f)Mr Begnell then drove to a customer’s premises and was away for an hour or an hour and a half. When he returned Theo could see that he was in pain so he sent him home;
(g)about a week later, Mr Begnell came in and spoke with Arthur. After a conversation with Arthur, it was decided that Mr Begnell could keep his job and his pay would continue;
(h)a short time later Mr Begnell came into the warehouse and was bending in and out of his car to remove a stereo. After seeing how Mr Begnell was moving, Theo said to Arthur, “That’s it, no more pay. Before he comes back to work I want a doctor’s certificate stating that he is fit for work.” Mr Begnell apparently got the doctor’s certificate and started back at work on a Tuesday;
(i)when Mr Begnell returned to work, he was angry and very short with Theo. The next day he was much the same. On that day Arthur said that Mr Begnell wanted the firm to put in a compensation claim for him stating that he hurt his back while he was at work. Theo responded “no way”;
(j)the next day Mr Begnell came to see Theo. No one else was present, as the drivers had left for their deliveries and the warehouse workers were busy in another area. Mr Begnell said, “I want you to put in a compo claim for my back”. Theo said, “No way, its not fair”. Later on that day Mr Begnell approached Theo again and asked if he could leave early. Theo said no and Mr Begnell started arguing. Theo walked away from him into the office. Mr Begnell called out from outside the office “can you come out here; I want to talk to you?” Ms Newcombe said to Mr Begnell “he’s just behind the cabinet”. Theo then walked out to see Mr Begnell and Mr Begnell said, “Why do you hate me so much? What have you got against me? Why have you been riding me?” Theo said, “I haven’t been doing that. Enough is enough.” At this stage Theo was leaning on the counter and Mr Begnell lunged at him grabbing him around the throat and pushing him back with his other arm back, as if to punch him. At that time, Mr Walsh came out of the office and Arthur came along and grabbed Mr Begnell’s arm with Mr Walsh and told him that he would go back to jail because he was still on parole. Mr Begnell then released Theo and said that he quit. He then went to the back of the warehouse to collect his gear and left;
(k)about a month later Theo became aware that Mr Begnell had submitted a workers compensation claim for his back injury. Theo contacted Mr Begnell’s parole officer to discuss his situation. After this, Theo received a number of threatening phone calls from Mr Begnell. As a result of a number of criminal and civil court actions ensued;
(l)about three to six months after Mr Begnell left, an investigator from CGU came to Super Start and interviewed Theo, Mr Walsh and another staff member;
(m)Mr Begnell left Super Start of his own volition. His injuries did not come about through his employment. He was not required to undertake heavy physical work, and
(n)since Mr Begnell left Super Start a position has been left open for him for rehabilitation.
Arthur’s evidence in his statement of 18 August 2005 is to the following effect:
(a)Mr Begnell started work with Super Start in about July 2001 after having been introduced by the “Works release” people from the Department of Corrective Services. A person from the Department explained that Mr Begnell had been doing a lot of work with children from disadvantaged backgrounds, including backpacking and hiking and that Mr Begnell was able to do physical work because he had spent a lot of time hiking with ninety pound packs, abseiling, and general physical activities associated with bushcraft;
(b)when Mr Begnell started with Super Start he was given the job of filling batteries with acid. Warehouse staff would lay pallets loaded with batteries on the ground or on the pallet tables, by using a forklift. Once the batteries were filled, staff would remove them with the forklift or pallet jacks. There was no requirement for the batteries to be manually handled, except when they were being picked and loaded for delivery, which drivers generally did and then only one battery at a time. No one was expected to move batteries around the warehouse manually as that was all done by forklift;
(c)after a few months, Super Start’s warehouse manager resigned and as Mr Begnell “seemed to be going alright” he was promoted and offered an upgrading in salary to become the warehouse manager;
(d)over the next twelve months the warehouse became disorganised, stock was everywhere, warranties were not being done and Mr Begnell was not maintaining any control over the stock. Customers complained about waiting times for orders, orders were not ready, there was a shortage of product in the orders and even an excess of product in the orders. In addition, delivery trucks were always late and particular orders were scattered around the warehouse. Old stock was mixed with new stock, throw away stock had piled up and was not disposed of and warranties on stock had expired. Arthur estimates that it cost about $20,000.00 in stock control;
(e)over time he noticed that Mr Begnell was getting more and more aggressive and his behaviour was erratic. On one occasion he headbutted the fridge in the lunchroom and split open his head. Mr Begnell was constantly on the telephone to his wife and he was constantly agitated and would often have bruising to his face, saying that he had been mugged at the train station;
(f)in either late 2003 or early 2004, Theo approached Mr Begnell and spoke to him about the condition of the warehouse and said that managing it was not the job for him. Theo offered him a job in solar panelling and doing catalogues, but Mr Begnell kept putting those off;
(g)Arthur arrived at work one morning (the date of which he could not recall) when staff were waiting to be admitted. Mr Begnell said he “had a sore back and he got it picking up ‘dog shit’ at home before he came to work”. Once inside the factory, Arthur overheard Mr Begnell mention his sore back to Theo. Theo told him to go home and rest, but Mr Begnell wanted to stay at work because he was fighting with his wife. He said he would go to AAA Tyres and do the warranties on batteries sold from that location. Mr Begnell was away for about an hour or so and when he returned his back was still sore so Theo and Arthur told him to go home;
(h)in the following week, Mr Begnell came into the factory with his wife and explained that under his parole conditions if he did not have a job he would go back to jail. Mrs Begnell explained her health condition and that her husband could not afford to take time off work. She asked if Arthur could help them. They both admitted that they had argued on the Friday morning before Mr Begnell came to work and complained about his sore back. According to both Mr and Mrs Begnell, he “was throwing things around and that’s how he did his back in”. They also spoke about how Mr Begnell broke his back twice, once while riding a motorcycle and on another occasion by a gas canister in prison. He also mentioned how he “had done his back in whilst lifting furniture”;
(i)Arthur also recalled an occasion when Mr Begnell borrowed the truck from work to collect firewood. On the next day he said he could not move because of back pain;
(j)Arthur told Mr Begnell that he could take time off and Super Start would help by paying him each week;
(k)after that, Mr Begnell would call in each week and collect his cheque;
(l)at some stage Mr Begnell removed a stereo from his car. He had no difficulty bending or reaching under the dashboard to do so;
(m)on giving Mr Begnell money, Arthur said it was not his pay but was money that he and Theo were giving him to help him and his wife;
(n)at some stage Mr Begnell said he was better and ready to return to work. He was asked to provide a doctor’s certificate prior to commencing work and “on the 11th of June, 2003 he went to his doctor and was given a certificate to return to work”;
(o)Mr Begnell returned to work on a Tuesday and was aggressive towards everybody. He approached Arthur and said, “Will you approve my back as a workers comp claim?” Arthur responded “I will have a chat to Theo”;
(p)Arthur was in the back of the factory and could hear Mr Begnell calling out to Theo. As Arthur walked out of the store towards the office area he saw Mr Begnell grab Theo around the throat and push him back. At that time, Mr Walsh came out of the office and Arthur pulled Mr Begnell off Theo. Mr Begnell then swore and went to the back of the factory to collect his personal items and left;
(q)about a month later, Mr Walsh advised Arthur and Theo that Mr Begnell had made a workers compensation claim for his back injury. WorkCover contacted the business and threatened prosecution if it did not approve Mr Begnell’s claim;
(r)about three to six month after Mr Begnell left an investigator from CGU came to interview Arthur, Theo, Mr Walsh and another staff member. Apparently, the information given to the investigator was passed onto Mr Begnell and in turn created civil and criminal court actions;
(s)so far as Arthur is concerned, Mr Begnell was never injured at work at Super Start and he left work of his own accord when he resigned. He was not required to undertake heavy physical work because pallet jacks, forklifts and pallet tables are available for that purpose. Mr Begnell approached almost everyone at the factory to support his workers compensation claim but they would not support him. His injuries did not happen at work, but happened while he was moving house, gathering firewood and arguing and fighting with his wife;
(t)since Mr Begnell left Super Start, the firm has held a position open for him for rehabilitation but he has declined this offer, and
(u)following Mr Begnell’s departure, the firm was visited three times by a WorkCover inspector, Mr Grant Vosu. Each visit was unannounced and no fault was found with the workplace.
Medical Evidence
Mr Begnell relies on two reports from Dr Vo, the first dated 3 August 2004 and addressed “To Whom It May Concern”, and the second dated 29 October 2005 addressed to his solicitor.
In the 3 August 2004 report, Dr Vo recorded that Mr Begnell “suffered from severe back pain as a result of work injury.”
In the October 2005 report, Dr Vo took recorded the following history:
“I first saw Mr Begnell on 5 July 2003, when he gave a history of a sudden onset of lower back pain the day before ie 4th July 2003 after lifting a heavy battery, weighing in excess of 100kg. Examination at that time revealed a very tender lumbar sacral spine to palpation with a markedly reduced range of spinal flexion due to pain.”
A CT Scan investigation performed on 8 July 2003 (not 7 July 2003, as stated by Mr Begnell) revealed a diffuse disc bulge at L4/5 with encroachment upon the L4/5 neural foraminae and a small posterior disc bulge at L5/S1.
A short report from the Liverpool Hospital emergency department dated 9 July 2003 states that Mr Begnell attended at the hospital at 10.45 on that day after being referred by his local medical officer. The report added “HAS SCANS SHOWING DISC PROLAPSE, POST LIFTING 2/52 AGO AND INCREASING.” It was also noted that Mr Begnell’s back pain was “undoubtedly exacerbated by the bending and heavy lifting that he does at work.” He was advised against heavy lifting and repetitive bending at work.
An MRI scan on 25 February 2004 revealed a central disc protrusion at the L4/5 level with encroachment on the right L5 nerve root.
Mr Begnell saw Dr Milder, consultant neurologist, at the request of his solicitors in April 2004 (report 27 April 2004). Dr Milder took a history that Mr Begnell worked as a warehouse manager between May 2001 and August 2003. In the course of that work he was required to repetitively lift batteries weighing between 2 and 100 kilograms, representing a combined total daily lifting load of between 1000 and 2000kg. Under “History” Dr Milder recorded:
“He began to suffer in November 2001 low back discomfort, present on up to four successive days in a two month period. At such times, sudden sharp pain passed to the posterior aspects of the thighs and to the calves.
He suffered in July 2003, when lifting a battery weighing in excess of 100kg, a sudden increase in low back pain passing to the posterior aspects of the thighs and to the calves.”
Under “Prior Conditions”, Dr Milder recorded that Mr Begnell fell from a motorcycle at the age of 31 and was admitted to a hospital emergency department for a day. An undisplaced crack fracture of the sacrum was subsequently detected. Thereafter Mr Begnell suffered with his low back, but his discomfort did not radiate and it resolved completely after two months.
Dr Milder concluded that Mr Begnell sustained a protrusion of the L4/5 intravertebral disc with compression of the right 5th lumbar nerve root and probably the left 5th left lumbar nerve root. He also sustained thoracic soft tissue and ligamentous injuries. He thought Mr Begnell was unable to take part in duties requiring long standing or sitting or stooping or the lifting of heavy objects.
Dr Milder dealt with the question of causation in a report dated 3 June 2004 where he said:
“He suffers due to an incident in July 2003 an impairment of the whole person of 18%.
He suffers due to the conditions of his employment between May 2001 and August 2003, with the exception of the incident in July 2003, and an impairment of the whole person of 2%.”
Dr Sheridan, neurosurgeon, prepared a short hand written report dated 3 September 2004 in which he merely referred to Mr Begnell having suffered a flare up of his bilateral leg pain and back pain and recommended an MRI scan to assess his condition. That scan was performed on 16 September 2004 and again revealed the L4/5 posterior disc protrusion with encroachment on the theca that was less marked than when previously noted.
As a result of a direction issued by a Commission arbitrator on 14 September 2005, Dr Aldridge, injury management consultant, examined Mr Begnell on 4 October 2005 for the purpose of assessing suitable duties with Super Start.
In his report dated 26 October 2005, Dr Aldridge recorded that Mr Begnell suffered the onset of low back symptoms lifting batteries at his workplace. The diagnosis was one of degenerative lumbo-sacral disc disease with a protrusion at L4/5 and L5/S1. The L4/5 protrusion impinged on the right L5 nerve root to a mild degree. The February and September 2004 MRIs seemed to provide some evidence of a slight reduction in impingement.
On examination, low back movements were all reduced and straight leg raising was 55% on the right and 60% on the left. There were no obvious neurological deficits, but two centimetres of wasting was noted in the right thigh.
Dr Aldridge conducted a workplace assessment on Tuesday 5 October 2005 in the presence of Mr Walsh and one of the directors. He was informed that Mr Begnell’s “duties involve supervisory and inventory activities.” The proposed suitable duties offered by the employer involved the preparation of catalogues in the office. The physical requirements of that work were minimal and the worker would be able to sit or stand at will and move around as necessary. Dr Aldridge found the proposed permanent job offer to be compatible with Mr Begnell’s physical limitations.
Mr Begnell saw Dr Salmon in August 2004 for an epidural injection which gave temporary relief only. There is no report in evidence from Dr Salmon.
Dr Vo referred Mr Begnell to Dr Renata Abraszko, neurosurgeon and spinal surgeon, in early 2005. Dr Abraszko first saw Mr Begnell on 1 April 2005 and on several further occasions between that date and December 2007. Dr Abraszko recorded the following history in a report of 9 April 2008:
“Mr Begnell told me that he was employed as a full time storeman/manager at Superstar [sic] Batteries in Lansvale in May 2001. He stated that in July 2003, after lifting heavy batteries at work, he developed sudden severe back pain in his lower back which radiated to both legs. He was unable to move due to the pain. He went to see his local doctor and initially he had a CT scan of the lumbar spine, which showed L4/L5 diffused disc protrusion with no significant encroachment of the nerve root as well as [a] small L5/S1 disc protrusion.”
Mr Begnell walked with the aid of a stick and was unable to sit for the whole of the consultation. Neurological examination revealed decreased sensation to pin prick in the left L5 and S1 nerve root distribution, more pronounced on the left side. There was no significant muscle wasting in the legs.
Under “Diagnosis”, the doctor stated:
“Mr Begnell provided a consistent history with medical examination and clinical findings. He suffers from lower back pain due to L4/L5 and disc bulge causing L4/L5 canal stenosis and impingement of the L5 nerve roots in both lateral recesses. There is also L5/S1 minor posterior disc protrusion. This is consistent with his work related injuries.”
Dr Abraszko also referred to Mr Begnell having developed neck pain and to an MRI scan of his cervical spine dated 21 August 2006 revealing disc protrusions at C5/C6 and C6/C7. The doctor felt that the connection between his neck pain to his work related injury was “uncertain”. Reference was also made to an MRI scan of the right shoulder which showed “bony impingement-type anatomy”.
The recommended treatment, after two years of conservative management without any improvement, was surgery to decompress the L4/L5 canal stenosis and Mr Begnell was on the waiting list for that surgery at Liverpool Hospital. Dr Abraszko concluded that Mr Begnell’s work was a substantial contributing factor to his injury and the prognosis for his return to work was not good.
CGU had declined to pay for the proposed surgery and I assume that it has not proceeded.
In earlier proceedings in which Mr Begnell sought lump sum compensation (No. 7273-2005) in respect of the same injuries alleged in the present claim, Mr Begnell was referred for assessment by an approved medical specialist (‘AMS’), Dr Blake. Dr Blake examined Mr Begnell on 17 November 2005 and prepared a Medical Assessment Certificate (‘MAC’) on 28 November 2005. Dr Blake took the following history:
“Mr Begnell commenced his job as a storeman on 28/5/01. Initially full time casual, he then became permanent full time, and after three months was made warehouse manager. As well as the extra duties as manager, he continued working as a storeman. He had to handle batteries weighing between 5kg and truck batteries weighing 110kg after filling. These heavy truck batteries weighed 65kg empty. The batteries were lifted by ropes which had plastic handles, at each end, and he would have to move at least 8 of the heaviest batteries each day. He would need to lift the 110kg batteries on his own, to put them on a pallet. They did not use a forklift or other means of mechanical lifting, as such would take longer especially if they were moving one battery at a time. Initially he managed these heavy physical work requirements OK.
After twelve months, in May 2002 he noted pain in his lower back, which gradually worsened. He would note it when he first got up in the morning and the pain would go with warming up and working, but would then return again in the afternoon. He reached the point where he was getting a lot of pain in both buttocks, more severely in the left, with a feeling of a razor blade running down his left buttock to the back of the knee, with lesser symptoms on the right. The pain would occur as a sudden excruciating shooting pain, and it would last 3-5 days before going. He then might have 2 weeks without leg pain. Over the 12 months following the onset of the back pain, there were 4 or 5 times when he stopped doing heavy work for 2-3 days, undertaking light duties only, as he says that if he was not there at work, everything would stop. After 2 or 3 days away from the heavy duties he would return to the full work again. In May he had gone to Liverpool Hospital Emergency Department and was advised to have 2 days off work and not undertake the heavy lifting.
From May 2002 through to July 2003, the length of the periods in which he was clear of pain gradually diminished, from about 2 weeks down to a continuous daily pain with no days in which he was free of pain. He collapsed on 2 occasions when his legs went from under him, with the razor blade sensation, and he had to grab onto something adjacent to stop collapsing to the ground. He was seen again at Liverpool Hospital, and given a letter to his employers to say that the weights being lifted were excessive and were causing damage to his back. He tried to avoid lifting these weights, and get another employee to help, but at times he was on his own and just had to.
After 1/1/02, there was no change in his duties at work. He states that his work day involved opening the factory at 7.45am, and he worked through until he closed the factory at 6pm, working 6 days a week. On Saturday he would close a little earlier, at 3-4pm.
By early July 2003, his lower back pain had become severe as described, and on 4/7/03 he was having a really bad day, with the razor blade pain still present from the day before. There were 2 approx 25kg Commodore batteries that had been left behind by a truck, and he started to put them into their required place for maintenance to be carried out. He bent to pick up the first battery from the floor, and as he started to lift he got severe pain and the razor blade sensation in his back and buttocks, and let go of the battery, to grab onto support. He collapsed to the floor. The pain he suffered was just his usual pain, not different to that which he had been having increasingly since May 2002. However, on this occasion he was locked in a bent over position for the first time, and couldn’t straighten. Nearby office staff got his boss to come, and Mr Begnell told him that he needed to do something and see a doctor, as something was wrong. He was helped to the meal room, had a cup of tea and sat and rested for half an hour, but was no better.
When he said to the boss he would have to go home, the boss asked if he would go to another warehouse 3-5km away to supervise the loading of some 100 batteries. It had to be done that day because the partnership between the boss and the other business was breaking up. Physical help was to be arranged for him and Mr Begnell said he would try, and went about 10am. He had to check each battery with a load test, and found that no one had been arranged to help him with the loading. The owner of the business saw the condition he was in, and asked one of his employees to put the batteries in the utility. About 3pm the batteries were still not all loaded as the man helping him had to go off to do tyres as well. At this stage his back was getting worse and worse, he rang his employer but no one was available to come. When the batteries were loaded by about 4pm, Mr Begnell got in the utility and drove the 2km back to his base. He then travelled 50km home, a staff member going with him to ensure that he got home.
At home he couldn’t move, and was taken to his family doctor’s surgery. After x-rays he was referred to Liverpool Hospital, as when he had got home he had lost control of his bladder. He was seen at Liverpool Hospital the following day, 5/7/03, with his urine continuing to dribble and no feeling of pressure to pass urine. He was referred to Dr Sheriden [sic], having to wait till 12/8/03. The dribbling of urine continues to the present time. Conservative measures of hydrotherapy and physiotherapy were preferred by Dr Sheriden [sic] rather than undertaking surgery. He told Mr Begnell that surgery at that stage would cause deterioration. In relation to his bladder, the risks of operation outweighed the possibilities. He was referred to Dr Salmon for pain management advice, and an epidural injection was carried out in about June 2004. This helped with partial relief initially for 3-4 weeks, with reduction in the dribbling of urine and the razor blade pain. He thinks no bladder tests were carried out.
In August 3002 [sic, 2003] Mr Begnell was asked to go to work as they didn’t know where some of the stock was, and he did so with his doctor’s agreement. He said that at work his employer asked him to state that his back trouble had occurred at the place of the ex work partner, that Mr Begnell had held 2 heavy batteries and tripped over a hose and done his back in. He states that his employer did this to avoid an increase in his insurance premiums and get revenge on his ex business partner. Mr Begnell refused to do this, and he states false accusations were made by his employer, resulting in 6 attendances at court. His employer was convicted, with a vexatious apprehension order, and a false claim of assault, and stated Mr Begnell had not been given the job to pick up the 100 batteries on the day of 4/7/03. It was proved on surveillance video that in fact he had attended for the job. Mr Begnell remains concerned and says that the court case is ongoing, as another position has been offered by his same employer, to cover whatever duties that he could do. He didn’t take this up as he would have to work with his boss with which he had had the trouble. Mr Begnell also says the company employing him has stated that he didn’t work there for 18 months. He remains technically under their employment, on workers compensation, and the situation is still unresolved.”
Under the subheading “Details of any previous or subsequent accidents, injuries, or condition”, Dr Blake recorded that there were no previous injuries or problems relating to Mr Begnell’s lower back, thoracic back or neck. He noted the motorcycle accident in 1989 when Mr Begnell sustained grazes and abrasions, was seen at Campbelltown Hospital and released the same day with no lost work. Mr Begnell admitted that he suffered an undisplaced crack fracture of the sacrum and his back returned to normal over 1-2 weeks with no ongoing back or leg pain.
Dr Blake noted that on examination Mr Begnell presented with a mixed picture with some elements indicating possible nerve damage in the lower back producing a corda equina syndrome, but there was also considerable abnormal illness behaviour and evidence of voluntary modification of the physical findings. The doctor felt that regular lifting of 110kg batteries was well above reasonable lifting limits and consistent with the development of back problems. The doctor did not assess whole person impairment as he felt that Mr Begnell’s condition had not reached maximum medical improvement.
Super Start arranged for Mr Begnell to be examined by Dr Bodel, orthopaedic surgeon, on 28 September 2005. Dr Bodel took a history that the work at Super Start was quite heavy and also involved administrative roles. He added:
“On 04 July 2003 this gentleman came in to work and he had a soreness in the back. The pain rapidly worsened when he bent down to pick up a battery. He reported the problem and went to the doctor the following day. He was sent to have a CT scan of the lumbosacral spine on 07 July 2003 which showed evidence of disc pathology at the L4/5 level with an acquired vertebral canal stenosis and associated facet joint arthritis.
Mr Begnell was treated conservatively with analgesic and anti-inflammatory medication, some physiotherapy and intermittent traction. He continued to work until 14 August 2003 and could not continue after that because of his pain.”
Under “Past History”, Dr Bodel recorded that Mr Begnell had a soreness in the back on 27 March 2002. This was associated with bending and lifting at work and he was seen at Liverpool Hospital. That pain occurred when he was originally “setting up the factory” and was putting in very long days. X-rays were taken and he was given medication but he was not off work. After that, he delegated a lot of the lifting and he functioned much better. Dr Bodel also noted the 1989 motorcycle accident when Mr Begnell fractured his sacrum. The pain from that incident settled within a few weeks. In the past, Mr Begnell enjoyed playing touch football with his children and was a Salvation Army educator.
Dr Bodel agrees that the investigations reveal definite disc pathology at the L4/5 level and an acquired vertebral canal stenosis with associated facet joint arthritis. In his opinion, Mr Begnell suffered a disc injury in the incident that occurred at work on 4 July 2003. He also noted that there were clearly some pre-existing degenerative changes, but the episode at work caused additional structural damage in the L4/5 disc that has led to the back pain and left sided sciatica.
Dr Bodel reviewed Mr Begnell on 4 September 2007. On this occasion the doctor recorded a slightly different history, noting that Mr Begnell developed a soreness during his day’s work on 4 July 2003 which rapidly worsened when he bent over to pick up a particular battery. In respect of the episode of back soreness in 2002, Dr Bodel noted on this occasion that Mr Begnell continued to have intermittent back and leg pain radiating to the calf from that time onwards. On the issue of causation, Dr Bodel stated that the ongoing pain with left sided sciatica and clinical signs of radiculopathy “were primarily due to the injury on 04 July 2003”. Dr Bodel felt that Mr Begnell may need to consider surgical decompression because of his ongoing complaints.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)Determining that the insurer was not estopped from denying liability on the basis of new information and in failing to determine that the payment of compensation to the worker for two and a half years post lodgment of his claim was:
(i)an admission of liability as to injury; and/or
(ii)estopped the employer from denying liability on the issue of injury (‘admission/estoppel’)
(b)taking into account issues not previously notified to the worker as being in issue in the proceedings (‘issues not previously notified’);
(c)excluding medical reports sought to be relied upon by the worker (‘exclusion of medical reports’);
(d)making certain factual determinations or relying on certain factual matters that were incorrect (‘factual findings’);
(e)rejecting portions of Mr Kriaris’ evidence (‘Mr Kriaris’ evidence’);
(f)making no specific finding in relation to the evidence of Ms Newcombe and for the worker’s injury arising from the nature and conditions of his employment (‘Ms Newcombe’s evidence and nature and conditions of employment’);
(g)allowing into evidence documents evidencing the worker’s criminal record (‘evidence of Mr Begnell’s criminal record’);
(h)failing to take into account evidence and or failing to give reasons why he did not take certain evidence into account (‘failing to consider evidence’);
(i)failing to make any determination as to the credit of witnesses (‘credit of witnesses’);
(j)exercising his discretion to place any or any significant weight on Mr Drummond’s evidence (‘Mr Drummond’s evidence’), and
(k)criticising the worker for failing to cross-examine witnesses (‘failure to cross-examine witnesses’).
Failure to Cross-Examine Witnesses
The Arbitrator criticised Mr Begnell for not seeking to cross-examine Super Start’s witnesses. As the matter had been listed for “a 3 hour time slot” it is submitted that it was not practical for the matter to proceed other than as it did and it was not appropriate for the Arbitrator to criticise Mr Begnell for not seeking leave to cross-examine witnesses when no application to cross-examine was made by Super Start’s solicitor.
The transcript records that there would be no application by either party for leave to cross-examine (T1.56). Given the issues involved, the Arbitrator was entitled to observe that he had not been assisted by the fact that neither party called any oral evidence or sought to cross-examine (Reasons, paragraph 35). Nevertheless, in a case where neither party cross-examined, he was not entitled to draw an adverse conclusion against one party from the failure to cross-examine. The failure to cross-examine was a neutral factor that did not advance or diminish either party’s case. The Arbitrator erred in criticising Mr Begnell for his failure to cross-examine.
RE-DETERMINATION
As I have noted above, the matter must be re-determined. As neither side called any oral evidence, I am in as good a position as an Arbitrator to re-determine the matter and that is the course I propose to adopt.
This case requires the determination of a number of issues:
(a)objections to evidence (‘objections to evidence’);
(b)did Mr Begnell’s pre-injury duties require him to lift batteries, as he alleges (‘nature of Mr Begnell’s duties’);
(c)if so, did those duties result in Mr Begnell receiving an injury within the meaning of the 1987 Act, either as a result of the “nature and conditions” of his employment or as a result of an incident at work on 4 July 2003, or has his back condition resulted from the incident at home on 4 July 2003 or some other non-work related event (‘causation’);
(d)if so, what was the nature of the work injury and was employment a substantial contributing factor to that injury (‘injury and substantial contributing factor’), and
(e)if so, what compensation is payable as a result of that injury (‘compensation payable’).
Objections to Evidence
Super Start objected to the following parts of Mr Kriaris’ statement of 12 December 2006:
(a)the third paragraph on page one in which he referred to his business dealings with Super Start and threats he allegedly received from Theo (wrongly referred to as the first paragraph in submissions at the arbitration (T21.51));
(b)the evidence of a telephone conversation a staff member received from someone at Super Start on the morning before Mr Begnell arrived to collect batteries (see [26(a)] above), and
(c)the last and second last paragraphs on page two.
Whilst these objections were clearly raised at the arbitration, the Arbitrator did not deal with them.
I uphold objection (a) above and exclude the evidence in that paragraph, as it has no relevance to the dispute in the Commission. I also reject the fourth paragraph (starting “After Theo…”) and the first part of the first sentence of the fifth paragraph (starting “Theo also…”) up to “his instructions”. This evidence relates exclusively to Mr Kriaris’ dealings with Super Start and is of no relevance to the issues in dispute in the present matter. I allow into evidence the hearsay statement of the telephone conversation a staff member received from Super Start, though it is of limited probative value. The evidence in the second last paragraph on page two is relevant to Mr Drummond’s motive in giving his statement and the reliability of that statement. It is something that Mr Drummond could have been cross-examined about, had Mr Begnell sought to do so. It was attached to the Application and Super Start had every opportunity to seek Mr Drummond’s response, but did not do so. Therefore, it is relevant to the issues in dispute and there is no unfairness to Super Start in allowing it into evidence. The last paragraph on page two is relevant as it contradicts Super Start’s evidence that it lost customers because of Mr Begnell’s poor work performance. Therefore, both these paragraphs are admitted into evidence.
Nature of Mr Begnell’s Duties
Super Start’s business required a large number of batteries to be moved every day by a small workforce. The batteries were of different weights and sizes, ranging from motorbike batteries weighing a few kilograms up to truck batteries weighing 85 or 100 kilograms. Whilst I accept that Super Start provided forklifts and hand jacks for the movement of batteries in and around the warehouse, I do not accept that there was no manual handling required. Mr Begnell’s evidence that his duties included assisting in hand loading batteries onto trucks and having to lift batteries when filling them is plausible and is corroborated by Mr Bailey. I have no reason to disbelieve Mr Bailey and, whilst he was unhappy with Theo and Arthur, I find his evidence credible.
Mr Drummond’s evidence also concedes that manual lifting was involved, but there wasn’t much. That statement is inconsistent with his assertion that other workers were “burned” out because they had been “carrying” Mr Begnell. He took over as warehouse manager after Mr Begnell left and, as at the date of his statement, he remained with Super Start. I do not accept that Mr Drummond’s evidence is genuinely independent and I doubt its reliability.
Arthur also conceded that Mr Begnell’s work required lifting, at least until about 12 months before his statement of 5 September 2003 (see paragraph [35(k)] above). However, this seems doubtful, as Ms Newcombe confirms that she saw Mr Begnell lifting batteries and, “making verbal noises to express his pain” as he did so, on a date in July 2003 (see [38(c)] above). This evidence, which I accept, confirms that Mr Begnell did engage in manual lifting and that he did so in 2003.
The fact that manual lifting was required is also confirmed by Mr Walsh’s evidence in his unsigned statement of 5 September 2003, where he acknowledged that when batteries had to be lifted they were lifted one at a time with two people lifting the heavier batteries. However, in light of Ms Newcombe’s evidence, I do not accept Mr Walsh’s assertion in his 2005 statement that Mr Begnell did not have responsibility for manual handling because of a previous back injury. This assertion is also inconsistent with Arthur’s evidence that Mr Begnell’s job required him to lift batteries at least until September 2002.
In the light of the evidence from Mr Bailey and Ms Newcombe, I accept that Mr Begnell’s duties required him to lift heavy batteries and, as per the histories recorded by every doctor in this case, that that was a regular part of his job, though he did less lifting from May 2002 according to Dr Bodel’s history. It follows that I reject the evidence that suggests that Mr Begnell did no lifting at work and that no one was expected to move the batteries manually.
Causation
The evidence suggests that Mr Begnell has sustained several injuries to his back outside his employment with Super Start. He concedes that he injured his sacrum in a motorcycle accident in 1989, but says that he recovered within three months. It is also suggested that he injured his back when he was struck by a canister in jail, when he was a passenger in a panel van, when he had an altercation with his wife and when he moved furniture while moving house. No details are known about these other incidents, how serious they were, when they occurred and whether they had any long-term effects. However, the evidence of Mr Begnell’s participation in backpacking, hiking with ninety pound packs, abseiling, and general physical activities associated with bushcraft, which I accept, (see Arthur’s evidence at [44(a)]) prior to starting work with Super Start suggests that he had recovered or substantially recovered from his previous back injuries by the time he started with Super Start.
I do not accept Arthur’s evidence that Mr Begnell injured his back in an argument with his wife (see [35(i)] above). The suggestion is implausible and unlikely. No mechanism of injury is suggested and none of the medical experts have any history about it.
The suggestion that Mr Begnell injured his back while moving furniture (see Arthur’s evidence at [35(l)]) is also unsupported by any medical evidence or independent histories. Arthur gave no date as to when this incident occurred and I place no weight on it.
Mr Windshuttle’s evidence about Mr Begnell’s prior back injuries is unconvincing and unhelpful in determining the issue of injury. Given the degenerative changes in Mr Begnell’s back and the nature of his duties, it is hardly surprising that he experienced back pain. That fact may be relevant to any deduction under section 323 of the 1998 Act, but does not diminish the fact that he experienced a significant increase in the level of his symptoms in the course of his employment between 2002 and August 2003, and, in particular, on 4 July 2003 as a result of his lifting at work on that day.
Super Start’s main argument is that Mr Begnell injured his back at home on 4 July 2003 while picking up dog droppings. The conflicting evidence is within a narrow compass. Mr Begnell agrees he mentioned his back to his work colleagues on the morning of 4 July 2003, but says his back was sore and he had “even been unable to pick up the dog shit in the backyard.” The conflicting version is that he said he hurt his back while picking up dog droppings. The versions are so close that it may simply be a case of a misinterpretation. It is possible that both are partly correct. Even if Mr Begnell did experience back pain when he picked up dog droppings at his home on 4 July 2003 that is not determinative of the issue before me and, in light of all the additional evidence in the case, does not prevent him succeeding with his claim. The additional evidence, which I accept, is that later that day he then lifted batteries at work and experienced severe leg pain. In the absence of evidence that he experienced leg symptoms at home, I am comfortably satisfied that he sustained an injury in the nature of an injury to the disc or discs in his low back as a result of repeated bending and lifting at work between 1 October 2002 and August 2003 and as a result of lifting batteries in the course of his employment on 4 July 2003. My reasons are as follows:
(a)Mr Begnell saw Dr Vo on 5 July 2003, the day after he developed severe back and leg pain, and gave a history consistent with having injured his back at work while lifting a heavy battery (see [47] above). The doctor took no history of the any incident at home or any other non work related cause;
(b)on 9 July 2003, he attended at Liverpool Hospital complaining of increasing back pain after lifting two weeks ago. The report added that Mr Begnell’s back pain was “undoubtedly exacerbated by bending and heavy lifting that he does at work” (see [49] above). The Hospital recorded no complaint of any incident at home or any non work related cause;
(c)all the medical histories in this case are consistent with Mr Begnell having injured his back in the course of his employment with Super Start;
(d)I agree with Super Start’s submission that Dr Bodel’s opinion is largely dependent on an acceptance of Mr Begnell’s history being accurate. In light of the independent corroboration of Mr Begnell’s evidence by Mr Bailey, Dr Vo, Liverpool Hospital and Ms Newcombe, I accept Mr Begnell’s history of the nature of his duties and the events at work on 4 July 2003 as being accurate even though it is possible he experienced back pain at home on the morning of 4 July 2003;
(e)Mr Begnell has consistently claimed that he injured his back at work and produced medical certificates in support of that claim. Though those certificates are not in evidence, I accept the evidence in Dr Vo’s report which corroborates Mr Begnell’s evidence that he injured his back at work;
(f)as a matter of common sense, the activity of lifting batteries, which I have found Mr Begnell regularly did in the course of his employment with Super Start, is one that is more likely to cause a back injury than the simple act of bending on one occasion to pick up dog droppings;
(g)other evidence of Mr Begnell complaining of back pain at work before 4 July 2003 is consistent with him experiencing back pain as a result of his work duties and also with the presence of degenerative changes in his back. Those complaints do not destroy Mr Begnell’s claim, but confirm that he had back problems as a result of his work duties;
(h)even if I had excluded the second last paragraph of Mr Kriaris’ statement, I would not have accepted Mr Drummond as a truly independent witness whose evidence could be accepted unreservedly. He was still employed by Super Start at the time he gave his statement and he clearly had an interest to ensure that his evidence did not contradict the company line. It is possible that the warehouse was in disarray by the time Mr Drummond took over, but it is not known exactly when that was or what alternative arrangements were put in place after 4 July 2003. To the extent that Mr Drummond’s evidence conflicts with Mr Begnell’s, I prefer Mr Begnell’s evidence. Mr Kriaris’ unchallenged statement that Mr Drummond was being forced to fabricate a false statement about Mr Begnell further undermines the weight to be attached to Mr Drummond’s evidence;
(i)I accept Ms Newcombe’s evidence that Theo said on 14 August 2003, “you are on workers comp, you are no good to me” and that Mr Begnell replied “I have put my back out slaving for you, what do you want me to do.” This evidence is consistent with Mr Begnell’s assertions that his claim was treated as a compensation claim and that he was only supposed to be working suitable duties, as per Dr Vo’s certificates. Her evidence about “the specific date of 4 July 2003” is, however, mistaken because she refers to that day being a Saturday when it was a Friday. Her reference to Saturday does not diminish the general thrust of her evidence, namely, that Mr Begnell’s duties involved lifting batteries and that he experienced significant pain whilst performing them. Her evidence about Mr Begnell picking and packing a large order of batteries is consistent with Mr Begnell’s evidence about his duties and that his duties caused his back symptoms. Ms Newcombe also confirms that Mr Begnell was a conscientious worker. When she suggested he take it easy, he responded that he “had to get his work done”;
(j)Ms Newcombe also corroborates Mr Begnell’s evidence that he had significant back symptoms the day before he was sent to AAA, or within that week, and that he had been sent to Sydney Motors to check batteries because Theo and Arthur knew his back was hurting and they had to give him something to do;
(k)I have reservations about the reliability of the evidence from Arthur, Theo and Mr Walsh. It is difficult to accept the assault occurred as alleged, if it occurred at all. First, Ms Newcombe was either in the room where the assault occurred or, at the least, within very close proximity to the incident and yet she made no mention of it in her detailed statement of 10 September 2003. This seems unusual, given that she made an express reference to there being “tension in the factory” in the week starting 11 August 2003 and to hearing a conversation between Mr Begnell and Theo at about the time the assault is alleged to have occurred. Second, if the assault occurred, and Theo genuinely feared for his safety as a result of it, it is inconsistent that, having taken out an AVO, he did not pursue the matter in court. Third, Theo’s first complaint seeking an AVO was on 15 September 2003, more than four weeks after the alleged assault, but only a few days after Mr Begnell’s complaint to WorkCover. The delay in seeking the order is unexplained. Fourth, the Fairfield Local Court dismissed an AVO on 26 May 2005 with a costs order against Theo when he failed to appear. In an application to pay those costs by instalments of $100.00 per month, Theo swore in an affidavit on 6 September 2005 that his employer was Super Start Batteries Pty Ltd. In response to a garnishee order issued to enforce the costs order, Mr Walsh wrote to the Fairfield Local Court on 26 March 2007 stating that Theo Trigas was not an employee of Super Start Batteries Pty Ltd. I accept Mr Begnell’s evidence in preference to the evidence from Arthur, Theo and Mr Walsh, and
(l)the evidence that Mr Begnell’s incompetence cost Super Start thousands of dollars is also inconsistent with the fact that Mr Begnell remained in his position with Super Start for over two years. If Mr Begnell had performed so badly as the warehouse manager and had cost Super Start many thousands of dollars, as claimed by Arthur, Theo and Mr Walsh, it seems odd that he remained in employment. The allegation of incompetence is also inconsistent with Mr Kriaris’ evidence, which I accept, that Theo had told him how dedicated Mr Begnell was to his duties “being able to do all the duties the past Storeman [did] but also pick and pack all CITIC AUSTRALIA COMMODITY TRADING orders himself”.
The evidence from Dr Vo, Liverpool Hospital, Dr Bodel, Dr Milder, Ms Newcombe and Mr Bailey largely corroborates Mr Begnell’s evidence and adds an element of “consistency and reliability” (see [132] above) to his case that makes the acceptance of his evidence reasonable and appropriate notwithstanding the damage to his credit as a result of his past criminal conduct.
Injury and Substantial Contributing Factor
The CT and MRI scans reveal that Mr Begnell has significant disc pathology in his low back. I accept that that pathology and Mr Begnell’s resulting leg symptoms have resulted from his duties with Super Start between 1 October 2002 and 14 August 2003 which duties required him to lift and carry batteries on a regular basis, and from the lifting incident he described as occurring on the morning of 4 July 2003 when he experienced severe leg pain. Based on Dr Blake’s evidence at page eight of his MAC, I do not accept that the onset of Mr Begnell’s thoracic pain in July 2004 and his Achilles tendon symptoms in his left heel in May 2005 are related to his work injuries.
Having regard to the terms of section 9A(2) of the 1987 Act, I am comfortably satisfied, having particular regard to the time and place of the injury, the nature of Mr Begnell’s duties, the duration of his employment, and the state of his health before the injury, that Mr Begnell’s employment was a substantial contributing factor to his low back injury. I think it is unlikely that such an injury would have happened anyway at the same time or at the same stage of his life, if he had not worked for Super Start.
Compensation Payable
The solicitor for Super Start conceded at the arbitration that if Mr Begnell succeeded with his claim he was entitled to compensation under section 40 of the 1987 Act at the maximum statutory rate for a single worker from 13 February 2006 to date and continuing (T26.26). In view of that concession, which was properly made and not challenged or withdrawn on appeal, I do not propose to go through the five steps set out in Mitchell v Central West Area Health Service (1997) 14 NSWCCR 526. The evidence clearly establishes Mr Begnell’s entitlement to weekly compensation at the maximum statutory rate for a single worker under section 40 and that is the award I propose to enter. I also find that it is proper in the circumstances of the case that the weekly payment of compensation be adjusted to take account of any adjustment because of the operation of Division 6 of the 1987 Act (see section 40(6) of the 1987 Act). Super Start also conceded that a general order for the payment of section 60 expenses would be appropriate (T26.13) and that order will be made.
DECISION
Paragraphs two, three and four of the Arbitrator’s determination of 6 November 2008 are revoked and the following orders made:
“1.Award for the applicant worker under section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’) at the maximum statutory rate for a single worker from 14 February 2006 to date and continuing, as adjusted under Division 6 of the 1987 Act.
2.The respondent is to pay the applicant’s reasonable hospital and medical expenses under section 60 of the 1987 Act, upon production of accounts or receipts.
3. The respondent is to pay the applicant’s costs as agreed or assessed.
4.The matter is certified as complex and the parties are entitled to an uplift on their costs of 20%.”
The orders made in paragraph one of the Arbitrator’s determination of 6 November 2008 are confirmed.
COSTS
The respondent employer is to pay the appellant worker’s costs of the appeal.
Bill Roche
Deputy President
26 February 2009
I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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