GFG Alliance v Khodadadi
[2021] VMC 10
•18 August 2021
IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE
WORKERS COMPENSATION DIVISION OF COURT
Case No. M11678854
| GFG ALLIANCE | Applicant |
| v | |
| Esmaeil KHODADADI | Respondent |
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MAGISTRATE: | M A HOARE |
WHERE HELD: | Melbourne (via WebEx) |
DATE OF HEARING: | 13 August 2021 |
DATE OF DECISION: | 18 August 2021 |
CASE MAY BE CITED AS: | GFG Alliance v Khodadadi |
MEDIUM NEUTRAL CITATION: | [2021] VMC 010 |
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CATCHWORDS – Workers compensation – Termination of claim for weekly payments and medical & like expenses – Application for revocation of direction by conciliation officer – Hearing De Novo – Whether a ‘genuine dispute’ – Matters to be taken into account - Workplace Injury Rehabilitation and Compensation Act 2013 ss 297, 298 and 299.
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APPEARANCES: | COUNSEL | SOLICITORS |
| For the Applicant | Ms M Cameron | Hall & Wilcox |
| For the Respondent | Mr S Dawson | Maurice Blackburn |
HER HONOUR:
This is an application for a revocation of a Conciliation Officer’s direction pursuant to s.299(2) of the Workplace Injury Rehabilitation and Compensation Act 2013 ‘(the Act’).
On 6 August 2021, a Conciliation Officer directed that:
(a) Weekly payments be made to Mr Khodadadi, the respondent worker, for a total period from 1 July 2021 to 29 September 2021, exercising powers pursuant to s.297(4) and (6) of the Act.
(b) The cost of reasonable medical and like services be paid for the same period as the weekly payments direction, exercising powers pursuant to s.297(7) of the Act.
There was agreement between the parties that this application is dealt with on a ‘de novo’ basis[1].
[1] ACC v Kirilis, County Court, Rendit J (unreported, del. 25 September 1995; Wesfarmers Limited v John Moll [2015] VMC 25 (12 June 2015)
Mr Khodadadi, who is aged 42 years, was employed as a welder by the applicant having commenced on 17 June 2019.
On 24 August 2020, Mr Khodadadi made a claim for compensation for injuries to his back and left shoulder. On the nominated date of injury of 17 August 2020, he was engaged in a task of ‘push the bar’ according to his claim form (‘the incident’). Liability for his claim was accepted by notice dated 26 August 2020.
By notice dated 2 June 2021, Mr Khodadadi’s claim for compensation for the left shoulder was terminated by the applicant (although at that time he remained entitled to weekly payments and medical and like treatment with respect to his back injury) (‘the left shoulder termination notice’). The stated grounds were:
(a) you did not sustain an injury as alleged;
(b) you did not sustain an injury arising out of or in the course of your employment; and/or
(c) your employment was not a significant contributing factor to your claimed injury.
By notice dated 25 June 2021, Mr Khodadadi’s entitlements in relation to his back injury were terminated (‘the back termination notice’). The grounds included: the injury had resolved; that he no longer suffered from an injury arising out of or in the course of employment; that employment is no longer a material contributing factor to the claimed injury; that he had a greater functional capacity than had been reported to medical practitioners; and that he had not been truthful with respect to his limitations.
The dispute giving rise to the conciliation officer’s directions of 6 August 2021 concerned only the left shoulder termination notice. The back termination notice has been referred to conciliation, however it has not as yet been the subject of any outcome notice.
A number of medical reports were exhibited to the affidavit in support of the application. Additional medical report material was obtained by the conciliation officer. I will summarise the relevant medical and other material in chronological sequence.
In response to the incident, an ambulance was called to the worksite to attend on Mr Khodadadi. No symptoms or injury to the left shoulder were complained of at that time.
Mr Khodadadi was then transferred by ambulance to Western Health and was admitted the same day with a provisional diagnosis of ‘loin pain/ low back pain/low back strain/lumbago.’ There was no reference to left shoulder pain or symptoms upon initial triage. A detailed history was taken from Mr Khodadadi the next day regarding the incident, his pain and symptoms. There was no mention of left shoulder symptoms or pain. Mr Khodadadi remained an in-patient at Western Health for seven nights, throughout which time there was no reference to, nor complaint nor mention of, left shoulder symptoms or problems. He discharged himself on 24 August 2020.
An incident report (which was completed by the employer) dated 21 August 2020 referred to Mr Khodadadi’s back having given way as well as complaints of shortness of breath and chest pain following the incident. There was no reference to any upper limb involvement or problem.
On 25 August 2020, the day after his discharge, Mr Khodadadi attended Sunshine City Medical Centre for a long consultation with Dr N. Mahani and gave a history of the incident and his hospitalisation. The ‘reason for contact’ was low back pain and there was no reference to the left shoulder. The next day, Mr Khodadadi again attended Sunshine City Medical Centre and consulted Dr V. Navani. A history similar to that recorded on the previous the day was taken with there being no reference to the left shoulder.
A WorkCover certificate of capacity dated 26 August 2020 (which accompanied the claim for compensation) was completed by Dr Navani with a diagnosis of ‘likely lumbar disc injury with impingement / left sciatica’.
On 1 September 2020, Mr Khodadadi again consulted Dr Navani. The ‘reason for contact’ recorded in the clinical notes stated: ‘also injured left shoulder /apparently injured at the same time.’ An ultrasound was organised. This is the first reference to left shoulder in the medical materials.
On 4 September 2020, the left shoulder ultrasound findings were reported as ‘supraspinatus rotator cuff tendinopathy without a rotator cuff tear’ as well as mild associated bursitis and bursal impingement.
On 10 September 2020, Dr Navani was consulted and, in addition to ‘lumbar disc injury L4/5 with impingement’, it was recorded that a ‘reason for contact’ was: “ [ultrasound] / discussed / had rotator cuff pathology’.
On 11 September 2020, a physiotherapy management plan was completed for Mr Khodadadi by Mr I. Mahmud (after an initial treatment session with him on 9 September 2020). Under the heading ‘Clinical Assessment’, the diagnosis was ‘lower back soft tissue strain & disc injury/prolapse’ with the areas treated being ‘upper back / lower back’. The plan makes no reference to the any left shoulder issues.
On subsequent attendances on Dr Navani from 16 September 2020 onwards, the recorded reason for contact in the clinical records (in addition to the lumbar disc injury) included, ‘Right shoulder Supraspinatus tendinopathy++” [bold emphasis added].
On 16 September 2020, Dr Navani wrote to a letter to the applicant’s return to work coordinator in which he stated that Mr Khodadadi suffered from ‘work related lumbar disc injury with impingement /left sciatica and right shoulder rotator cuff tendinopathy’. He stated that M Khodadadi complained of ‘restricted spinal movements and associated functional limitations’.
Certificates of capacity were provided by Dr Navani from 16 September 2020 for ‘likely lumbar disc injury with impingement/left sciatica and ‘Right shoulder Supraspinatus tendinopathy++ [bold emphasis added].”
On 9 November 2020, Mr Khodadadi underwent an L4/5 micro-discectomy.
On 28 January 2021, the attendance note recorded by Dr Navani was of Mr Khodadadi being ‘Post Back surgery with Left shoulder Supraspinatus tendinopathy’. Dr Navani noted that the left shoulder had ‘demonstrated impingement bursitis ++’ and made a referral for an ultrasound-guided steroid left shoulder injection. On that date, and thereafter, the certificates of capacity refer to the left shoulder.
Dr Navani provided two medical reports in this matter. In his first report of 23 December 2020, he stated that Mr Khodadadi suffered from (in addition to being post-lumbar disc surgery) ‘Right shoulder rotator cuff tendinopathy’[bold emphasis added]. In his second report of 29 March 2021, Dr Navani (in response to specific questions) clarified that the reference to the right shoulder in his first report was ‘a clerical error’ and the ‘injury occurred to his Left shoulder NOT the Right shoulder’. He said there had been no gap in treatment in relation to the left shoulder. In response to a question as to the dates of Mr Khodadadi’s attendance for treatment regarding his left shoulder, he listed 17 attendances between 1 September 2020 and 12 April 2021.
Mr Mahmud, physiotherapist, provided a report dated 30 July 2021 in which he recorded a history of a severe work-related injury of Mr Khodadadi’s spine and left shoulder following the incident. He stated that the left shoulder injury was ‘completely related with his workloads as he needed to perform this job in physically demanding nature with frequent ultimate use of both shoulders…’
Ms Suzy Larkins, psychologist, provided a report to the conciliation officer dated 30 July 2021. Mr Khodadadi first consulted her on 1 October 2020. She recorded no history of a left shoulder injury from the incident.
In addition to the medical material, the affidavit in support of the application referred to surveillance footage. The footage was arranged by the applicant was relied upon in support of the back termination notice. That footage, which was tendered by agreement, covered periods in March and May of 2021. Mr Khodadadi was observed carrying out various activities of daily living such as walking, driving, bending, reaching and pulling in bins. At times, Mr Khodadadi’s walking appeared slow and somewhat shuffling.
Both Counsel referred me to relevant authorities on what is meant by ‘genuine dispute’ and ‘no genuine dispute’ in s297 of the Act. In particular, I was referred to the decisions of Kyrou J of Somerville Retail Services v Li[2] and of Lauritsen DCM (as he then was) of QBE v Keep.[3] The principles set out in those cases, although concerned with the equivalent predecessor provision s60 of the Accident Compensation Act 1985, are applicable to a consideration of the operation of s297. As observed by Magistrate Wright in the decision of Allianz v Scandolera: ‘Those cases emphasise the extent to which a Court must consider an application to preclude a party from pursuing a claim or defence on its merits. Kyrou J refers to the need for a court to exercise great care and require the other party to satisfy them on the first party’s evidence that there is no real question to be tried. Lauritsen DCM concluded that the approach to be adopted in dealing with a revocation application is that the ‘lack of defence must be clearly demonstrated’[4].
[2] [2008] VSC 89
[3] Magistrates Court, unreported, del. 24 July 2009
[4] [2012] VMC at [23] –[25]
The applicant submitted that, in respect of the left shoulder, I should be satisfied there is a ‘genuine dispute’ in that ‘there is an arguable case in support of the denial of liability for the payment of compensation’ pursuant to s.298(2). According to submissions for the applicant, on a proper consideration of the medical and other evidence, there is an arguable case in support of the denial of liability for Mr Khodadadi’s left shoulder. This was because of the absence of any contemporaneous complaint regarding the left shoulder from the time of the incident, throughout the seven days of in-patient hospital treatment, at the initial GP consultations, at the first physiotherapy treatment and on the initial certificate of capacity. Additionally, the surveillance footage was relied upon on two bases: first, observations of Mr Khodadadi were inconsistent with how he presented to medical practitioners including an independent medical examiner (Dr Jonathan Ashish who examined Mr Khodadadi in the context of the spinal surgery request) and so doubt was cast over Mr Khodadadi’s truthfulness and credit generally; second, the surveillance footage suggested Mr Khodadadi does not have a left shoulder injury.
On the other hand, it was submitted for Mr Khodadadi that ‘the causation question’ in relation to his left shoulder had been satisfied and there was ‘no genuine dispute’ with respect to liability. The test for entitlement was pursuant to s39(1) of the Act which provides: ‘If there is caused to a worker an injury arising out of or in the course of any employment, the worker is entitled to compensation’. In relation to that test, Counsel for Mr Khodadadi relied on the Court of Appeal’s statement in Zlateska v Consolidated Cleaning Services Pty Ltd & Anor: ‘The test raises a question of causation. In a case such as the present, the test is satisfied if it can be shown, on the balance of probabilities, that any injury to the worker was caused by an act or omission of the employer (including any servant or agent of the employer). The causation question is to be approached, like any other causation question, as a matter of common sense.’[5]
[5] [2006] VSCA 141 at [82] Whilst Zlateska was concerned with the predecessor of s39(1) being s82 of the Accident Compensation Act 1985 the provision was the same.
Approaching Mr Khodadadi’s case ‘as a matter of common sense’, it was plain according to his Counsel that the left shoulder injury arose out of or in the course of his employment on 17 August 2020 as claimed. His claim form which was completed four days after the incident referred to the left shoulder. It was inevitable that the focus of Mr Khodadadi’s care and treatment in the acute phase was on his lumbar disc injury given its apparent severity. A complaint about the left shoulder was made to his GP within 10 days or so of the incident. Mr Khodadadi had demonstrated a capacity to perform his heavy duties for the employer over the period of his employment from 17 June 2019 to the date of the incident. Further, from the time of the first complaint to Dr Navani on 1 September 2020, there is consistent reference to the left shoulder in the clinical notes and the certificates of capacity. Nothing turned on the GP’s clerical error as to references to the right shoulder. The footage did not advance matters for the applicant in terms of the left shoulder as the most that Mr Khodadadi could be observed doing with his left upper limb is holding a cardboard tray with takeaway coffee.
The applicant’s liability, of course, turns on whether there was caused to Mr Khodadadi an injury to his left shoulder arising out of or in the course of his employment, being the incident on 17 August 2020 that is the subject of his claim. That was the test of Mr Khodadadi’s entitlement within the meaning of s.39(1) of the Act.
In my assessment of the evidence, it cannot be said there is no ‘arguable case’ or that a defence cannot be demonstrated in relation to liability for the left shoulder. It seems to me, on the evidence, that the applicant has an arguable case in support of a denial of liability for the left shoulder given the following matters:
(a) The absence of any initial complaint regarding the left shoulder immediately after the incident may well be explicable by the acute nature of the lumbar spine injury. However, had there been caused by the incident, a left shoulder injury, it may well be expected that there would be some complaint of left shoulder pain or symptoms in the course of a week-long period of in-patient treatment immediately following the incident. It is quite difficult, it seems to me, to reconcile that situation with the fact of the claim form being completed on the day of his discharge from hospital and referring to ‘back, left shoulder’.
(b) Inconsistently with the claimed injuries in the claim form, the accompanying initial certificate of capacity referred only to ‘likely lumbar disc injury with impingement / left sciatica’ but omitted mention of left shoulder.
(c) There is a recorded complaint of a left shoulder problem to Dr Navani on 1 September 2020 having ‘apparently’ occurred in the incident. The GP then arranged the ultrasound of 4 September 2020. Yet there was no mention of the left shoulder in the two preceding attendances at the same clinic.
(d) Then, Mr Mahmood’s physiotherapy treatment plan is written up the next week but is silent as to any history of the left shoulder problem both as to diagnosis and areas of treatment. In my view, Mr Mahmood’s report of 30 July 2021 does not, in or of itself, retrospectively validate the omission of the shoulder from the initial treatment session and the treatment plan. Indeed, it seems to me Mr Mahmood’s report of 30 July 2021 somewhat ‘muddies the waters’ further by referring to the injury having followed the frank incident, but also referring to ‘his workloads’ and ‘frequent ultimate use of both shoulders…’
(e) Whilst Dr Navani’s report of 29 March 2021 corrects the ‘clerical error’ in relation to the references to the ‘right’ rather than the left shoulder, I consider his report constitutes an unsatisfactory response to the questions asked of him by the applicant particularly in relation to treatment of the left shoulder. On a close review of the clinical notes of the listed attendances, at least two (on 12 and 28 October 2020) were recorded as ‘telehealth’ consultations and so would have been without any clinical examination. Also, contrary to Dr Navani’s assertion in his report, none of the listed attendances between 24 November 2020 and 8 January 2021 contained any reference to the left shoulder.
(f) Whilst not yet the subject of any orthopaedic opinion, it seems to me the reported findings on the ultrasound on 4 September 2020 are more suggestive of degenerative change rather than the sort of acute trauma that might be expected from an event such as the subject incident.
(g) As for the surveillance footage, I accept the submissions of both counsel about that. There are periods when Mr Khodadadi’s mobility appears somewhat limited and also periods when his activities do appear to be inconsistent with the reported level of function on presentation to doctors. The surveillance film, of itself, is not, its seems to me, particularly persuasive one way or another in the task of assessing whether there is no ‘genuine dispute’ in relation to liability for the left shoulder. However, I accept the applicant’s submission that the footage overall (when considered in the context of the whole of the medical material) at the very least raises questions as to Mr Khodadadi’s credit.
In my view, applying the principles from the authorities referred to previously in these reasons, I am satisfied there are questions to be tried in relation to liability for the left shoulder. On the whole of the evidence, it cannot be said there is a clearly demonstrated lack of defence. As was said by Lauritsen DMC in Keep, ‘The degree of clarity required of the demonstration is such that the task mush be approached with exceptional caution’[6].
[6] Ibid at p.5
Overall, therefore, I am satisfied that there is a ‘genuine dispute’ or an ‘arguable case’ as to the denial of liability of the applicant in relation to compensation for the left shoulder injury.
I revoke the directions made on 6 August 2021. In light of s278(4), I anticipate orders will be sought for the applicant to pay Mr Khodadadi’s costs of this application.
ADDENDUM
Since publishing my reasons it has been brought to my attention by the solicitors for the Applicant that there was a typographical error on the front page as to the name of the Applicant which has now been rectified. The Applicant’s name has been corrected from GFC Alliance to GFG Alliance.
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