Halkic v ISS Security Pty Ltd
[2022] VMC 35
•5 December 2022
IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE
WORKCOVER DIVISION
Case No.M11758322
| EDIN HALKIC | Plaintiff |
| v | |
| ISS SECURITY PTY LTD | Defendant |
---
MAGISTRATE: | M A HOARE |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 24 - 25 October 2022 |
DATE OF DECISION: | 5 December 2022 |
CASE MAY BE CITED AS: | Halkic v ISS Security Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2023] VMC 1 |
---
WORKERS COMPENSATION – Rejected claim – Back, neck, left upper and lower limbs – Workplace incident involving collision of vehicles - Whether injury in the course of or arising out of employment – Whether employment a significant contributing factor to a recurrence, aggravation, acceleration, exacerbation or deterioration of pre-existing injury or disease – No notice of injury until after employment ceased – Whether ‘serious injustice’ –Delay in lodgement of claim - ‘special excuse’ - Credit of the plaintiff – Workplace Injury Rehabilitation and Compensation Act 2013, ss 3(1), 18(10), 20(9), 22, 39(1), 40(3)(c), 160, Sched 1, Clause 25.
---
APPEARANCES: | COUNSEL | SOLICITORS |
| For the Plaintiff | Mr G Pierazio | Arnold Thomas Becker |
| For the Defendant | Ms K Gladman | IDP Lawyers |
HER HONOUR:
Introduction and Overview
At Melbourne Airport, on 16 June 2020, Mr Halkic, a work safety officer employed by ISS, was reversing his vehicle (designated as ‘W-67’) in the aircraft movement area when a collision occurred unexpectedly with another vehicle (the ISS incident). The other vehicle (designated as ‘W-28’) was driven by another ISS employee, Julie.
For most of his life, by way of background, Mr Halkic, who is now aged 59 years, has played the piano accordion for enjoyment and in a band performing at weddings and social functions.
Prior to the ISS incident, Mr Halkic had treatment for episodic low back pain following a workplace injury, having lost initially three days from work (the 1994 incident). No workers compensation claim was made and not long afterwards Mr Halkic took a voluntary redundancy package already on offer to him.
On 7 February 2021, whilst playing the piano accordion at a restaurant, Mr Halkic was assaulted by a person previously unknown to him and was treated for both physical and psychological injuries (the assault). He reported the assault to police the same day.
By Statement of Claim dated 20 August 2021, Mr Halkic pleaded injury as a result of the ISS incident with respect to the following: his back, neck, left upper limb and left lower limb. He relied on a WorkCover claim which was lodged some eleven months after the ISS incident (on or about 4 May 2021). He claimed relief under the Workplace Injury Rehabilitation and Compensation Act 2013 (the Act).
The WorkCover claim was rejected by notice dated 1 June 2021 on the following grounds: no injury had been sustained; and employment was not a significant contributing factor.
By Notice of Defence dated 5 October 2021, ISS relied on those same grounds and, additionally, pleaded statutory defences related to failure to give notice of injury and delay in lodging the claim.
Mr Halkic gave oral evidence as did, Ms Lorraine Chan, airfield operations manager, for ISS. All medical and other materials were tendered into evidence by consent.
Matters Agreed or Not in Dispute
It is convenient to set out additional matters of evidence that were either not disputed or were recorded in contemporaneous documents such as clinical records.
10. At the time of the 1994 incident, Mr Halkic was a patient of a GP clinic, St Mary’s Clinic of St Albans and attended there subsequently for treatment including prescription of medication.
11. From around January 2012, he has been a patient of his present GP clinic, the Kealba Family Practice (Kealba).
12. In around 2016, Mr Halkic was referred by a GP at Kealba for specialist opinion to an orthopaedic surgeon (Mr Clifford) regarding management of his low back pain. A CT lumbar scan was arranged.
13. On 24 November 2018, Mr Halkic registered an ABN as he was contemplating starting up his own security business.
14. On 10 June 2019, Mr Halkic commenced employment with ISS as a work safety officer (WSO) at Melbourne Airport (the airport).
15. The main responsibility of a WSO was the escorting of various contractors on and off the area of the airport known as the ‘movement area’. This was the area across which aircrafts would taxi to and from runways. The WSOs were required to drive the contractors onto and around the movement area in specially marked vehicles.
16. Prior to the COVID-19 pandemic, Mr Halkic worked a roster of twelve-hour shifts, usually about 120 hours a fortnight.
17. The ISS incident occurred at around 9:30 am and both Mr Halkic and Julie made reports subsequently to their supervisor, Ms Chan.
18. ISS carried out a full investigation of the incident for which there was no CCTV available. Ms Chan completed and signed off a report dated 29 June 2020 on a three-page form headed ‘Incident Investigation Report’ (the incident report form). The form stated (by way of a box being ticked) that the incident type was ‘Vehicle incident’ with boxes left blank for various other incident types including: Head injury; Sprain/strain; Bruising/Crushing.
19. Included on the incident report form was a brief description of the incident involving the collision of vehicles driven by Mr Halkic and Julie. The incident description section also recorded: ‘Edin and Julie are both fine, did not require any first aid or medical treatment. Rear bumper dented on door of W28’. The incident report form also stated that ‘Vehicle damage was assessed’ and ‘Julie and Edin both consulted’.
20. There were aerial or satellite photographs of each the two vehicles based on GPS capture around the time of the collision (the satellite images). The notation for ‘W67’ (Mr Halkic’s vehicle) stated: ‘Driving 6 km/h… Hard acceleration.’ The notations for ‘W28’ (Julie’s vehicle) stated: ‘Driving 1 km/h’ and, in another section, ‘Stopped for 4m 14s’.
21. A couple of days after the ISS incident, on 18 June 2020, Mr Halkic saw a GP at Kealba (Dr Moosa) and reported a side-on collision at work. The history recorded ‘no loss of consciousness’ and pain in the ‘interscapular and cervical region’ for which an anti-inflammatory was prescribed. Physiotherapy was recommended. A medical certificate was issued for three days, although Mr Halkic was not rostered to work those days anyway.
22. A few days after that, on 22 June 2020, Mr Halkic saw Dr Moosa again and reported that he had less pain and felt better with the medication having done the job.
23. During 2020, particularly over the second half of the year, the operations of ISS at the airport were reduced markedly due to the impact of the pandemic.
24. Effective 27 November 2020, Mr Halkic’s employment was terminated with ISS after his role was made redundant.
25. Between 23 June 2020 and 10 February 2021, the Kealba clinical records indicate no attendances at all by Mr Halkic.
26. On 10 February 2021, three days after the assault in the restaurant, Mr Halkic saw a GP at Kealba (Dr Gavender) and complained of dizziness, nausea and visual disturbance. He gave a history of the assault three days prior whilst playing in his band. He reported that the matter was going to court. The GP recorded: ‘neck nad, nil tenderness’ and bruising and tenderness to the left temporal region of the head. CT scans of the brain and cervical spine were arranged.
27. On 21 April 2021, Mr Halkic complained to Dr Moosa of back pain and pain moving into the left knee with ‘pain worse after MVA in June 2020’. He reported having injured his back in a 1994 work-related incident for which he saw his previous GP clinic.
28. On 28 April 2021, Mr Halkic completed his WorkCover claim for the ISS incident which he described as follows: ‘motor vehicle major accident’. At another point, in response to the question of involvement of a third party, Mr Halkic wrote: ‘two vehicle accident (major accident)’. As for the body parts affected, Mr Halkic listed on the claim form the following: ‘back lower disc, neck, left shoulder, left arm, left ankle and left ankle foot’.
29. Additionally, Mr Halkic’s claim form stated that he stopped work on 27 November 2020 and that he reported the injury to his employer on 29 April 2021.
30. As for the stated reason on the claim form for the delay in reporting injury, Mr Halkic wrote that he reported to his GP (Dr Moosa) on 18 June 2020, that he was receiving treatment and was feeling he would get better in good time.
31. In response to the question on the form of whether he had previously had ‘another injury/condition or personal injury claim that relates to this injury/condition’, Mr Halkic stated: ‘No’.
32. Having set out those matters, I now turn to the plaintiff’s oral evidence.
Mr Halkic’s evidence
33. Prior to commencing with ISS, Mr Halkic had worked in various jobs, often security-related work and mostly at the airport. For example, in around 2000, he worked at the airport for Chubb in a passenger-screening type role. Under cross-examination, he agreed he also did other types of work including as: a parking inspector for the City of Melbourne; cleaning at a McDonalds; and some car-detailing of rental cars.
34. As for the 1994 incident, he had been lifting bags of material and, on the fifteenth bag, had twisted his back and his face had gone pale according to his co-workers at the time.
35. In cross-examination, he agreed that over the years following the 1994 incident, he saw a GP regularly and was prescribed Panadeine Forte, Panamax and Celebrex. He took Panadeine Forte about every three or four months when the pain was excruciating and to relieve tension.
36. In cross-examination, Mr Halkic denied that low back pain in the years after the 1994 incident had precluded him from full time work. He had continued to play piano accordion in the band full-time and worked in other jobs. He agreed he spent time travelling overseas after the redundancy in 1994.
37. In cross-examination, he denied that he worked full-time as a musician, rather it was on weekends at functions although not every weekend.
38. As for why he had sought a specialist orthopaedic opinion in 2016, that was to check his back was okay because as it ‘kept spraining’ and ‘seizing up’. Mr Clifford’s advice was that two lumbar discs were ‘blacked out’ due to the 1994 incident. He was told to be careful, to avoid heavy lifting and that even small incidents could affect his back. In cross-examination, he agreed he did feel pain in his knee but did not necessarily tell Mr Clifford because it was not hurting then like it did now.
39. As for how his low back pain in 2016 compared to back in 1994, he coped with pains and strains for which he took medication.
40. As for registering an ABN in contemplation of starting up his own security business, he never took that further.
ISS Incident
41. At the time of the ISS incident, Mr Halkic had been reversing at a speed of 10-15 km/h when the collision occurred. Under cross-examination, he disagreed with the accuracy of the GPS capture of speed on the aerial photograph indicating his speed was 6 km/h.
42. He was shocked by the collision and blacked out for three to four seconds. He felt a big jolt with pain in his neck and back. He got out of the vehicle and checked that his body was okay.
43. He and Julie spoke briefly before moving the vehicles to a safe area. He was taken aback when Julie’s vehicle appeared unexpectedly as he was a cautious driver and had checked all his mirrors. Mr Halkic and Julie both made reports to Ms Chan.
44. As for witnesses to the incident, Hakan, a supervisor with ISS, accused him of hitting a stationery vehicle. Gavin, another ISS employee, told him he saw the incident and that Julie’s vehicle was moving.
45. At a later point, Mr Halkic clarified that he did not speak to Gavin after the incident but rather two or three days later.
46. In cross-examination, when shown the completed incident investigation form, Mr Halkic agreed he did not tell Ms Chan that he had hurt himself. That was because he did not feel symptoms then and felt okay. Also, he was not going to say he had cuts and bruises when he did not.
47. As for why Ms Chan would have written ‘Julie and Edin are both fine’ on the incident report, under cross-examination, Mr Halkic said he had no cuts and bruises and did not need hospital, but he did black out and could not see for three to four seconds. Also, when he stepped out of the car, he felt sharp back pain.
48. As for what he meant by being unable to see, under cross-examination, he said he hit his head on the headrest and blacked out as a result. As for why he would not report something as significant as blacking out to Ms Chan, particularly given the safety aspect of his WSO role, that was because she did not ask. Ms Chan had asked if there was any serious injury or need for hospital and he said no.
49. As for the reason for attending Dr Moosa two days after the ISS incident on 18 June 2020, that was in order to point out his severe neck and shoulder problems. He had learned to live with back strains which was why he did not mention that. His concern was with his neck and shoulder. He wanted to do normal duties, so he was keen to talk to the doctor.
50. Under cross-examination, Mr Halkic agreed it was possible he did not mention having blacked out to Dr Moosa.
Period after the ISS incident
51. In the months after June 2020, Mr Halkic was not doing his normal hours and was being rostered for only one to two shifts per week. ISS had 150 employees and everyone else was working, yet suddenly, he was not being given work. Mr Halkic had pleaded for more shifts, yet there was never an explanation of why his shifts were curtailed when everyone else was getting shifts.
52. Under cross-examination, Mr Halkic was asked whether he agreed or disagreed with ISS records showing that his last shift worked was in August 2020. He said he could not recall when he last worked.
53. As for the condition of his back during the months following the incident, Mr Halkic was coping, he had had strains before, but this was worse than before.
54. Under cross-examination, as for why he saw no doctors for any complaints or at all between 22 June 2020 and 10 February 2021, Mr Halkic said he had medication, he was coping and also expected he would recover.
55. As for his role with ISS being made redundant, Mr Halkic was one of the first employees, along with three others, whose role was made redundant due to the impact of the pandemic.
56. Following the redundancy, Mr Halkic had not worked at all other than playing the piano accordion when he received a booking for events such as weddings and parties.
57. Under cross-examination, Mr Halkic said he had not continued playing the piano accordion after the redundancy and had to cancel bookings. That was due to his back and shooting pains in his left knee and leg and at times being paralysed.
58. Under cross-examination, Mr Halkic agreed that a piano accordion gets heavy, especially if standing.
Assault
59. As for the circumstances surrounding the assault on 7 February 2021 (a Sunday), Mr Halkic had been playing the piano accordion at the restaurant after receiving a phone call asking him to come for drinks and to play for an hour. It was not a pre-booked arrangement, and he was not paid for the job.
60. Under cross-examination, Mr Halkic said it was a ‘one off’ arrangement and he had not been playing the piano accordion for functions at all. That was because he was unable to play due to his injuries from the incident. At a later point in cross-examination, he agreed he also played at the restaurant the night before and, also, that he had been there for almost two hours at the time of the assault. At another stage of cross-examination, he said he was offered $500 to come to the restaurant and play the piano accordion that afternoon but never got paid.
61. He was head-butted twice in the head by a patron in the restaurant. There was an immediate onset of symptoms including: pain, bruising and swelling to the left side of his head as well as nausea and double vision. He was dazed and almost collapsed.
62. Also, under cross-examination, when questioned about the consequences of the assault, he said the assault had nothing to do with his back, rather he had neck pain. The neck pain had started with the ISS incident and got worse after the assault. He could have been killed from the assault as he was hit in the brain. He still had double vision to this day.
63. Mr Halkic made a claim for the assault with the Victims of Crime Assistance Tribunal (the VOCAT claim) and received funding for counselling and a small monetary award.
64. As for the psychological consequences of the assault, he was, and remains, fearful, worried and stressed. He has had counselling sessions with a psychologist, Ms Karin Steinhoff. Under cross-examination, he agreed he told Ms Steinhoff that after the assault he had ‘seen black for 3 to 4 seconds’.
65. Mr Halkic has continued to see GPs at Kealba following the attendance on 10 February 2021 after the assault. That was for extra painkillers for his back and knee and regarding the progression of his injuries. He was seizing up a lot and having trouble with everyday activities.
66. On 28 July 2021, Mr Halkic saw a neurosurgeon, Mr Patrick Lo, having been referred by Dr Moosa. At that time (when referred to Mr Lo), his pain was 10 out of 10 and it was 24/7. This was from the centre of his spine down to his knee.
67. Following the MRI scan of 22 December 2021, Mr Lo had recommended an L5/S1 lumbar fusion and micro-discectomy. As Mr Lo advised surgery would not relieve the back pain, Mr Halkic decided against it.
68. As for why he lodged a Workcover claim in April 2021, that was because he could not have faced any employer in the state he was in. Also, he was worried about his condition and needed to ensure there was a proper understanding of the seriousness of his situation. His claim (which he completed and signed himself) was made after he saw lawyers.
69. Under cross-examination, as for why he made no report of injury to ISS either after the incident or at any time prior to lodging the WorkCover claim in April 2021, that was because he was coping with things up until then. But then it was becoming excruciating, and he needed the scans requested by Mr Lo and he could not put up with it any longer.
70. Currently, he continues to attend GPs at Kealba. He does his own hydrotherapy program in the bath at home. Medications include Celebrex and Panamax which was to remove the nerve routing.
71. Mr Halkic was on a Centrelink pension. He did not consider he was capable of work and could not perform his pre-injury duties. If he were to be working, he would be dragging his leg around and collapsing.
Ms Chan’s evidence
72. Ms Lorraine Chan, airfield operations manager in the employ of ISS, has been so employed from about 2019. She had day to day operations responsibility including staff rostering.
73. Ms Chan learned of the incident on 16 June 2020 from one of the supervisors. After that, Mr Halkic and Julie made reports. Ms Chan had responsibility for gathering evidence over about two weeks and completing the incident investigation report. She recalled speaking with both Mr Halkic and Julie face to face several times about the incident. Mr Halkic had provided a sketch drawing of the position of the two vehicles.
74. Part of the investigation involved accessing the GPS vehicle tracking system and generating the satellite images of the two vehicles at the time of the collision.
75. Under cross-examination, Ms Chan conceded that the GPS estimates of vehicle speed captured in the satellite images may not necessarily be accurate. She agreed that Mr Halkic told her that he believed his speed was higher than the 6 km/h specified on the satellite image.
76. Following the incident, Mr Halkic had continued working as regularly as before. However, from around mid-2020, due to the pandemic, the volume of work allocated to ISS by Melbourne Airport was curtailed. That meant less shifts for employees. There were no reasons other than the downturn caused by the pandemic for the reduction to Mr Halkic’s shifts. He was issued a penalty notice because of the ISS incident but that did not preclude him from driving or working.
77. Mr Halkic’s last shift worked was on a date in August of 2020.
Medical Evidence
78. Dr Mohamod Moosa, treating GP, provided two brief reports of 30 June 2021 and 3 November 2021. On 21 April 2021 there was a complaint of work-related low back pain radiating into the left knee from an occurrence in 1994 (for which he had seen other doctors). That was worsened after an MVA in June 2020. The diagnosis was of lower lumbar pain radiating into the left knee and foot. The ISS incident involved another vehicle having rammed up into the rear of his car. It was opined that the injury sustained on 16 June 2020 was an aggravation of the previous 1994 back injury, combined with the repetitive nature of the work for ISS. It was opined there was an incapacity for work involving lifting, pulling and pushing based on the findings on the CT lumbar scan. Dr Moosa considered there was no reason to doubt Mr Halkic’s account which he considered an honest one.
79. Mr Patrick Lo, neurosurgeon, prepared reports of 28 July 2021 and 5 January 2022 to Dr Moosa and a report to Mr Halkic’s lawyers dated 1 December 2021. There was a history of ongoing back pain ever since commencing security work in 1994, although no single injurious event. As for the workplace incident with ISS, there was a jolting injury to the lower back and neck and transient loss of consciousness for 3-4 seconds. He continued working that day, but back pain progressed. By September 2020, there was severe discomfort with back pain and accordingly he took time off work. He was discharged from normal work on 27 November 2020 due to workplace changes and the pandemic. Since then, there was low back stiffness with difficulties walking. Diagnosis was aggravation of an underlying degenerative lumbar condition and a possible acute cervical injury. As for causation, based on a temporal relationship between the workplace incident and back and neck symptoms, there was a relationship between the aggravation of the condition and the incident. There was no capacity for work when last seen on 28 July 2021. Following a lumbo-sacral MRI scan in December 2021, it was opined lumbo-sacral fusion and micro-discectomy may be of benefit neurologically but would not help the back pain.
80. Dr Michael Lucas, occupational physician, prepared a medico-legal report of 23 March 2021 for the Agent. A history of the workplace incident was taken involving the onset of low back, neck and left shoulder discomfort by the end of the day. There was a past history a workplace low back injury in 1996 with no time lost from work and a specialist review of imaging. After the ISS incident, Mr Halkic participated in usual workplace duties and hours until being terminated in November 2020. He gave a history of not playing in his music band since the incident. On examination, regions of discomfort were the neck, left shoulder and upper limb, lower back and left leg. CT lumbar scan findings appeared long-standing and a diagnosis of mechanical spine pain or difficulty was considered reasonable based on the imaging. On the other hand, the reported multiple concerns were considered challenging in terms of diagnosis. It was also challenging to attribute incapacity to the 2020 workplace incident. As for causation, it was opined that current symptoms were not significantly related to ISS employment nor to the incident. Imaging findings were consistent with age-related degenerative change.
81. Dr Kah Heng Lee, occupational physician, prepared a medico-legal report of 9 May 2022 for lawyers for ISS. Mr Halkic was considered a challenging historian who was highly tangential in providing a history and frequently presented his own theories on his medical condition rather than answering questions. He gave a history of the incident which resulted in loss of consciousness or complete loss of vision for five seconds and immediate pain in his neck and shoulders radiating down his back. He reported to a supervisor that he felt a bit sore, but otherwise all right. He saw the GP after a few days, continued to experience pain and ultimately had the CT scan in September 2020. Employment was terminated due to the pandemic, before which Mr Halkic had not felt that bad and aimed to keep working. Current symptoms were: severe headaches at night; dizziness, constant low back pain and of 10/10 severity; pain radiating down the left arm of 9/10 severity; and paraesthesia, weakness and stiffness of the left arm and leg. Diagnosis was musculo-skeletal and left lower limb radiculopathy, however it was opined there was no basis to attribute his current presentation to the incident. It was also opined that employment would only have been a contributing factor to several weeks of neck and torso symptoms. There was capacity for employment with some physical restrictions. It was noted that it was difficult to assess current work capacity due to the inconsistencies in presentation and significant non-anatomical aspects to presentation.
82. Ms Karin Steinhoff, treating psychologist, prepared a report of 3 September 2021 for the VOCAT claim related to the assault (tendered into evidence by ISS). The assault was described, including that it caused him to see black for 3 to 4 seconds. The next day he had bruising, headaches and impaired vision. Mr Halkic had reported feelings of life-threatening risk of harm, of being constantly agitated and angry and crippled with anxiety attacks. He had fears of a head injury and of paralysis in the future. There was a reported history of an extended episode of schizophrenia. It was noted there was a WorkCover claim on foot for workplace injuries. It was opined that one of Mr Halkic’s thinking traps was catastrophising. There was a diagnosis of post-traumatic stress disorder subsequent to the assault.
83. Mr Michael Kapitan, optometrist, provided a report of 25 March 2021 to Dr Govender about visual disturbance following the assault and the need for opthalmological opinion.
Consideration
84. The legal and evidentiary onus of proof rested with Mr Halkic to establish, on the balance of probabilities, an entitlement to compensation in accordance s 39(1) of the Act. He needed to show that the claimed injuries arose out of or in the course of the ISS incident.
85. The central dispute was causation. ISS admitted the incident on 16 June 2020 occurred, but denied injury was caused to Mr Halkic by reason of it.
86. The definition of ‘injury’ in s 3 of the Act includes ‘a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease’.
87. Given the evidence regarding his prior back condition, Mr Halkic was precluded from an entitlement to compensation unless the evidence established, on the balance of probabilities, that the incident with ISS was a ‘significant contributing factor’ to any aggravation or exacerbation of underlying and pre-existing injury or disease. That was pursuant to s 40(3)(c) of the Act.
88. In determining whether employment is a ‘significant contributing factor’ to a worker’s injury or disease, the Act sets out mandatory considerations in Clause 25 of Schedule 1.
89. Additionally, as already stated, ISS relied upon statutory defences regarding notice of injury and the delayed making of the claim.
90. I now turn to the evidence and submissions.
91. Mr Halkic’s credit as a witness generally, and the credibility of his evidence on the causation dispute, was a central concern. The importance of a plaintiff’s credit (including as to the reliability of histories given to the medical witnesses) in cases such as the present one has been confirmed many times in statements by the Court of Appeal in cases such as Petrovic v Victorian WorkCover Authority[1] and Johns v Oaktech Pty Ltd.[2]
[1][2018] VSCA 243 [74].
[2][2020] VSCA 10 [76].
92.Mr Halkic was cross-examined rigorously on contentious matters relating to causation including:
a.The nature and extent of the pre-existing low back condition and prior work history;
b.The circumstances of the ISS incident and the absence of complaints and treatment between June 2020 and February 2021;
c.The assault and its consequences.
93.While giving evidence, particularly under cross-examination, Mr Halkic’s answers were frequently inconsistent or contradictory of his own evidence or with the contemporaneous clinical and other records. I formed the view that he was also, whether consciously or unconsciously, even during examination in chief, retrospectively reconstructing events and circumstances to further his interests in this case. At times, Mr Halkic’s answers to questions either bordered on the bizarre or were wholly improbable.
94.As regards his work prior to ISS, Mr Halkic gave unsatisfactory evidence. In examination in chief, he told the Court he had worked mostly in security type roles for twenty years and generally at the airport. Mr Halkic denied that his low back pain impacted upon or precluded him from work during the years before starting with ISS.
95.In later evidence, when pressed in cross-examination on periods of work and nature of roles, Mr Halkic was extremely vague and unclear about his work history even regarding more recent times before starting with ISS.
96.My impression was that the prior work history was more diverse and more sporadic than evidence in chief suggested. He had cleaned a McDonalds restaurant, worked as a car-detailer and a city parking inspector. There were periods of extended travel about which he was very vague. The circumstances of seeking a specialist opinion appeared to relate to obtaining some sort of clearance to work more or in other duties than he had been before then. He also told the Court that his episodic low back trouble was at times ‘excruciating’.
97.Additionally, he said initially he worked full-time as a musician during these years. Later, he altered his evidence, denying he worked full-time as a musician, rather only on some weekends.
98.Regarding the immediate consequences of the ISS incident, Mr Halkic’s evidence, repeated at several points, was of having ‘blacked out’ for 3 to 4 seconds. He also told the Court he felt a ‘big jolt with pain in his neck and back’. He also said at another point that when he first stepped out of the car, he felt ‘sharp back pain’.
99.Yet, somewhat implausibly, he also gave evidence that he did not tell Ms Chan he had hurt himself because he did not feel any symptoms and felt okay.
100.Later, in an example of the bizarre nature of some his evidence, when asked why the incident report would have stated ‘Julie and Edin are both fine’, he said that was because he ‘had no cuts and bruises’. He also told the Court he did not mention having blacked out to Ms Chan ‘because she didn’t ask’. Then he appeared to change his evidence, saying that Ms Chan had asked if there were any serious injuries or any need for hospital to which he told her, ‘No’.
101.I observe at this point that, as regards to whether Mr Halkic did experience some sort of ‘black out’, I note the evidence of Dr Moosa’s contemporaneous clinical note of 18 June 2020, which recorded ‘no LOC’, the accepted abbreviation for no loss of consciousness. I conclude that such a record could only have been after a direct question from Dr Moosa. It seems to me very unlikely that Mr Halkic would not mention to his GP a consequence as significant as having blacked out from the very event he was there to report. I say that also given the alleged consequence of blacking out was something that loomed large in his account to the Court of the ISS incident’s immediate aftermath.
102.Whilst it is not uncommon for clinical notes to omit some detail, this was a sixteen-minute consultation specifically about the ISS incident. Various complaints were made, yet the blackout was not mentioned at all even though it appears from the record there was a question about it. Similarly, regarding the back, Mr Halkic’s explanation was that he was used to back strains and so only mentioned his neck. Yet, I find that difficult to reconcile with his evidence that both his neck and back were jolted by the impact.
103.As for Mr Halkic’s evidence about his condition over the months after the ISS incident, he told the Court he was coping and accustomed to back strains, yet his back pain was ‘worse than before’.
104.To my mind, weighing the whole of the evidence, it is entirely either unlikely that Mr Halkic was experiencing any aggravation, deterioration or exacerbation of back symptoms in the months after the ISS incident. Alternatively, if he did have episodic symptoms, I conclude they were no worse than over the past many years.
105.The evidence before the Court was of not a single GP visit between the attendance on 22 June 2020 (when he told the GP he had less pain and was feeling better) and February 2021 (three days after the assault). I observe that contrasts to the period after the assault when the clinical records show multiple attendances about his complaints: twice in February 2021, twice in March 2021, twice in April and so on.
106.Whilst injury is of course not the same as incapacity, Mr Halkic’s contention that his back was worse is at least somewhat at odds with his evidence that in 2020 he was pleading for shifts.
107.As for the nature of the ISS incident itself, I have referred to two responses on the WorkCover claim form of 28 April 2021 in which the incident was described as a ‘major accident’. It seems to me that was not an accurate description of the incident. To my mind, even accepting that the GPS recording of speed was inaccurate (a concession made by Ms Chan), the collision was of a very minor nature. That is based even on Mr Halkic’s version of his vehicle travelling at 10 to 15 km/h and Julie’s vehicle also travelling at a very low speed or having stopped (noting the GPS capture of 1 km/h).
108.As for the circumstances surrounding the assault, Mr Halkic’s evidence similarly lacked credibility. He initially told the Court it was a ‘one-off’ arrangement following an unexpected phone call urging him to come for a drink and to play. Before that, Mr Halkic gave evidence of not having played the piano accordion for functions ‘due to his injuries’ from the ISS incident. Later, under cross-examination, he conceded he had played the night before at the same restaurant and, also, that the arrangement was he would be paid $500 to come and play.
109.As for the assault itself, which was the subject of a police report, I conclude that this was a rather violent incident. Mr Halkic described being head-butted twice in the head causing him to feel nauseous, dazed and to have impaired vision and headaches. That was consistent with the contemporaneous clinical record on 20 February 2021 of his complaints to Dr Moosa. I accept that this was a frightening and disturbing incident and Mr Halkic believed he could have been killed.
110.Yet there was no mention to Dr Moosa of blacking out nor loss of consciousness after the assault (although he did complain of feeling dazed and dizzy). Yet, somewhat bizarrely, Ms Steinhoff in her report to VOCAT, recorded Mr Halkic giving her a history ‘of seeing black for 3 to 4 seconds’ using almost identical language to his evidence about his experience after the ISS incident.
111.In assessing the credibility of Mr Halkic’s account, it seemed also to me that, either consciously or unconsciously, even during examination in chief, there was a tendency to embellish or exaggerate symptoms and the surrounding circumstances of events. Some examples were: his evidence that his pain levels in mid-2021 were ‘10 out of 10’ which was ‘24/7’; his account that he could not play the piano accordion after the ISS incident because of shooting pains in his leg which were ‘paralysing’ (yet he was pleading for shifts); and his evidence that he could not work currently because he would be ‘dragging his leg’ around and ‘collapsing’. There were many others.
112.As Ms Steinhoff observed in her report, one of Mr Halkic’s ‘thinking traps is catastrophising’. I would also agree with Dr Lee’s description of Mr Halkic as a challenging historian who was ‘highly tangential in providing a history’ and ‘frequently presented his own theories on his medical condition rather than answering questions’.
113.Accordingly, weighing the whole of the evidence, in particular Mr Halkic’s evidence, I conclude that he was not a credible witness and that in giving evidence he was, at best, unreliable and, at worst, dishonest.
114.It is for these reasons that I am unable to accept the submission of Mr Halkic’s Counsel that he ought to be accepted as a witness of truth. Rather, I agree with the submission of Counsel for ISS that I should not accept Mr Halkic’s evidence on any disputed matter unless corroborated by contemporaneous documents or other reliable evidence.
115.Additionally, in relation to the assault which I have found was an incident of significance, it is perplexing to say the least that (leaving aside Dr Moosa) none of the medical practitioners who gave specialist opinions in the period between March 2021 (Dr Lucas) and May 2022 (Dr Lee) had any history at all of the assault. That is particularly given the timing of the assault, which was in February 2021. Indeed, Mr Halkic told Dr Lucas that he had not played the piano accordion at all much less about the assault whilst playing.
116.Additionally, none of the medical opinions appeared to have the history of a complete absence of complaints, symptoms nor treatment from 22 June 2020 up until three days after the assault. Rather Dr Lo and Dr Lee appear to have histories of progressive back pain from the time of the ISS incident.
117.Of course, in assessing the medical opinions, I nevertheless must examine the whole of the medical evidence even where it may have been undermined by other evidence, including evidence that the worker may not have been fully frank with a doctor. That is clear from the principles set out in Pulling v Yarra Ranges Shire Council.[3]
[3][2018] VSC 248 [50] - [55].
118.Finally, before turning to findings, I observe at this point that I found Ms Chan to be an impressive and honest witness who answered questions directly. She made appropriate concessions including that the GPS speed estimates may be inaccurate. She also agreed that Mr Halkic said at the time he was travelling faster than the 6 km/h estimated by the satellite.
119. Having made those observations, I turn now to my findings in relation to injury and causation.
Claimed Back Injury
120.On causation and the claimed back injury, Counsel for Mr Halkic did not resile from this being an aggravation case.
121.There was a consensus of medical opinion in that regard in relation to diagnosis.
122.When Dr Lo assessed Mr Halkic on 28 July 2021, he opined that the diagnosis was an aggravation of underlying, pre-existing and symptomatic lumbar disc degenerative disease. That was also the view of Dr Moosa. The lumbo-sacral MRI report of 22 December 2021 demonstrated degeneration at L5/S1 with nerve root involvement. Both Dr Lucas and Dr Lee opined as to degenerative lumbar changes seen on imaging.
123.According to submissions of Counsel for Mr Halkic, on the evidence, it boiled down to there being three possible traumas to explain Mr Halkic’s present situation with low back: the 1994 incident; the ISS incident; and the assault.
124.As for the assault, it was contended for Mr Halkic that the evidence of blows to the head and upper body in the assault simply could not explain his complaints of low back trouble reported to his GP from April 2021.
125.Instead, the cause was the ISS incident which was an event of substance causing Mr Halkic to seek medical treatment for injuries a few days afterwards. Importantly, also, Mr Halkic was upfront with Dr Moosa in April 2021 in not shying away from the 1994 incident.
126.As for the lack of complaints after 22 June 2020 and before April 2021, according to submissions, that was wholly explicable by reason of Mr Halkic’s many years of self-managed low back pain since 1994. Also, over the latter part of 2020, symptoms were manageable by reason of him being off work due to the impact of the pandemic.
127.Accordingly, it was submitted for Mr Halkic, that the weight of evidence supported a finding that the ISS incident had indeed aggravated a pre-existing and underlying condition.
128.Of course, there was no question, on the evidence, that Mr Halkic’s back injury claim was an aggravation case.
129.However, the starting point for the plaintiff was not an elimination of other explanations. Rather, the threshold for entitlement to compensation was to establish, to the requisite standard, that there was caused to Mr Halkic an injury to the back resulting from or in the course of employment (being the ISS incident).
130.I refer to my findings set out previously regarding the incident itself and my conclusion that it was a minor and very low-speed collision.
131.As for the medical evidence on causation, the opinion of Dr Moosa was that the underlying pre-existing lumbar spine condition was worsened by the ISS incident. I am unable to accept Dr Moosa’s opinion for a few reasons.
132.Firstly, Dr Moosa had what I consider to be an inaccurate history of the ISS incident involving a collision in which another vehicle ‘rammed up the rear’ of Mr Halkic’s vehicle. I refer to my previous findings regarding the collision being minor in nature. Indeed, when Mr Halkic sees Dr Moosa back on 18 June 2020 the collision is described as a ‘side on’ collision.
133.Secondly, Dr Moosa in his report of 30 June 2021 refers to the attendance on 21 April 2021 as being the first date he was consulted by Mr Halkic. He is apparently unaware that he saw Mr Halkic twice about it in June 2020 and not thereafter for some seven months.
134.Thirdly, Dr Moosa’s opinion on causation is further undermined by his reference to ‘the repetitive nature of his work’ at the airport of which there was no evidence nor was that pleaded.
135.As for Mr Lo, he opined that there was an aggravation of the underlying condition by the ISS incident based on his understanding of there being, as he puts it, a ‘temporal relationship’ between the ISS incident and the back. Yet, as I have already found, there was no supportive contemporaneous evidence of back complaints at all at the time of the incident nor at any time before April 2021.
136.I have already referred to the reasons why I consider Mr Halkic’s evidence to be unreliable. For the reasons already set out, I reject Mr Halkic’s evidence of feeling back pain after being ‘jolted’ in the ISS incident and of feeling back pain as he got out of the car afterwards. (I will consider the claimed neck injury separately later in these reasons).
137.I prefer the opinion of Dr Lee who provided the most recent (May 2022) and, it seems to me a fairly comprehensive (save for the assault) and considered, report. He concluded that there was no basis to attribute current presentation to the ISS incident some two years prior in June 2020.
138.Weighing the whole of the medical and other evidence, I find that the plaintiff has failed to discharge the burden of proof to the requisite standard that there was caused to Mr Halkic any low back injury arising out of or in the course of the ISS incident on 16 June 2020.
139.Having made that finding, it is not strictly necessary for me to consider the test which precludes entitlement to compensation under s 40(3). That is whether the ISS incident was a significant contributing factor to any aggravation of the underlying condition.
140.For the sake of completeness, and essentially for the same reasons, I am of the view that the weight of evidence does not support such a conclusion. I conclude it is highly improbable that the ISS incident (given my findings about it) was a significant contributing factor to the flare up or exacerbation of low back trouble some ten months later in April 2021 and thereafter. In making that finding, I have considered the factors in Clause 25, particularly (d) and (e) as to the underlying and pre-existing lumbar condition as well as my findings about nature of the ISS incident (paragraphs (a) to (c)).
141.As for paragraphs (f) and (g), years of playing the piano accordion may or may not have been a contributing factor to the deterioration of the back from April 2021. Similarly, the very real trauma and stresses in the aftermath of the assault also might or might not have been a contributing factor. However, those issues, given my other findings, I do not need to determine for the purposes of this case.
142.Finally, I do not accept, as an explanation for the complete absence of back complaints between June 2020 and April 2021, that it was due to Mr Halkic being stood down from work for many months. To counteract that contention are: first, my findings as to the minor nature of the ISS incident; and my rejection of Mr Halkic’s evidence of experiencing back symptoms at the time, or a worsening of existing back symptoms thereafter, of the ISS incident.
Claimed Neck Injury and Left Upper Limb Injury
143.For completeness, I note there was no imaging or investigation of the cervical spine arranged following the ISS incident (or indeed after the assault) or at least that was tendered into evidence.
144.As for diagnosis, based on the contemporaneous clinical records of Dr Moosa for 18 and 22 June 2022, I conclude that the weight of evidence does support a finding that there was a musculo-skeletal injury to the neck and upper scapular region and that such injury arose out of or in the course of the ISS incident.
145.I so conclude based on the following matters of evidence:
a.Whilst I have concluded the collision was not a major one as claimed by Mr Halkic, I accept that there was a collision of some impact which resulted in vehicle damage;
b.The contemporaneous complaint to Dr Moosa on 18 June 2020 of pain in that region which Mr Halkic attributed to the ISS incident;
c.Dr Lee’s opinion that it was reasonable to accept that the ISS incident would have been causative of ‘several weeks of neck and torso symptoms’;
d.Mr Lo has little to say about the neck and, to the extent that he does, it is undermined for the same reasons as regards the back;
e.The contemporaneous history taken by Dr Moosa that, by 22 June 2020, symptoms were abating as the medication had done the job;
f.The absence of any follow up complaints after 23 June 2020 and prior to the assault;
g.By 23 February 2021, according to the clinical records, Mr Halkic was complaining to Dr Moosa of neck, middle back and right shoulder pain over a few days (having commenced four days before) and was improving. That attendance refers neither to the assault nor to the ISS incident.
146.Additionally, and also based on those same matters, I find that the musculo-skeletal injury to the neck and upper scapular region had resolved within, at most, a month or so.
147.There was no evidence of a pre-existing or underlying neck condition. Accordingly, it is not strictly necessary for me to consider the ‘significant contributing factor’ test which precludes entitlement to compensation under s 40(3).
148.Weighing the whole of the evidence, and in particular the matters referred to in paragraph 143, I find that the onset of symptoms and complaints from February 2021 onwards to Dr Moosa and to the specialists were not contributed to by, or causally connected to, the ISS incident.
149.Specifically, I find that any condition of the neck and left shoulder/arm complained of 2021 did not result from, nor was materially contributed to by the (resolved) injury from the ISS incident.
Claimed Left Lower Limb Injury
150.There was extremely sparse supporting evidence in relation to the nature or diagnosis of any lower limb condition.
151.It seems to me, that to the extent there was any condition of the left knee or leg, it was likely referred pain from the pre-existing (and as I have found unrelated) condition of the low back. That is apparent from the clinical record of 21 April 2021 which notes in the context of a complaint about the low back, ‘pain moves into L knee joint’. Such a conclusion is consistent with Dr Lee’s diagnosis of lower left limb radiculopathy.
Capacity
152.Mr Lo opined there was no capacity for employment when he saw him in July 2021. On the other hand, there was consensus between Dr Moosa and both occupational physicians that Mr Halkic had capacity for employment with some physical restrictions on lifting, bending and so on.
153.However, there was no evidence before the Court to support a finding that the nature of Mr Halkic’s pre-injury duties involved physical or manual aspects to it. Both Mr Halkic and Ms Chan said the role involved in essence the safe escort of contractors onto and around the movement area in vehicles.
154.The evidence was that Dr Moosa provided a certificate for just three days off work after the ISS incident and that Mr Halkic was not rostered to work then anyway. He said he was pleading for shifts and was keen to work.
155.For completeness, based on the evidence of Ms Chan, I find that there was no reason precluding Mr Halkic from working or being rostered to work other than the impact of the pandemic upon ISS operations at the airport. That was for the entire period from after the three-day certificate to the date of Mr Halkic’s redundancy (27 November 2020).
156.For these reasons, I find that the plaintiff has failed to discharge the burden of proof to the requisite standard that there was an incapacity for pre-injury employment beyond the first few days (when he was not rostered to work in any event).
157.If I am wrong about that, then also for the reasons already stated, I find that if there was incapacity beyond that period, it did not result from nor was materially contributed to by the (resolved) neck and right scapular injury.
Summary of Findings
158.To re-cap, for the reasons provided, my findings are as follows:
a.The nature of any medical condition relevant to the injuries as alleged in paragraph 4 of the Statement of Claim dated 20 August 2021 is a musculo-skeletal injury to the neck and upper scapular region (now resolved).
b.At no time had Mr Halkic had any medical condition relevant to the claimed back or left knee/ankle which I have found did not arise out of or in the course of employment.
c.Any incapacity for employment beyond the three days of the initial certificate did not result from, nor was materially contributed to, by the work-related musculo-skeletal injury to the neck and upper scapular region (now resolved).
d.Such entitlement to medical and like expenses with respect to musculo-skeletal injury to the neck and upper scapular region (now resolved) did not extend beyond ‘several weeks’ which I nominate as 28 July 2020 (six weeks from the incident).
Statutory Defences
159.In its pleadings and in Counsel’s closing submissions, ISS contended that Mr Halkic had no entitlement to recover compensation because of the mandatory notice requirement under s 18(1) of the Act. That requires notice to be given to an employer within 30 days after the person became aware of ‘an injury that may entitle a person to compensation’.
160.Section 18(1) of the Act has been referred to in the authorities as ‘a complete defence’ to a claim for compensation. That is because s 18(5) provides that a person is not entitled to compensation if notice has not been given pursuant to s 18(1). I refer, for example, to the discussion by Judge Parrish in Duricic v Feltex Australia Pty Ltd (Duricic)[4] in relation to s 102 (the predecessor provision) of the Accident Compensation Act1985 (the AC Act).
[4][2010] VCC 1735 [69].
161.The grounds upon which the time-limit specified in s 18(1) may be extended or waived for the providing of notice of injury are set out in s 18(6) at paragraphs (a) through to (c).
162.As a matter of statutory interpretation it is clear, from use of the word ‘or’, that each limb of s 18(6) operates in the alternative.
163.In respect of the circumstances in which the time limit may be extended or waived, each case will, of course, turn on its own facts.
164.In the present case, unlike the facts of Duricic in which there was some ambiguity about whether notice of injury had been given, Mr Halkic’s own evidence was that he gave no notice of any injury after the ISS incident or within 30 days of the incident on 16 June 2020.
165.Although as I have said his evidence was contradictory on this issue, Mr Halkic conceded that he was asked by Ms Chan whether he had suffered injury or needed to go to hospital. He told her he did not.
166.The evidence then was that, within a couple of days, he was complaining to his GP of symptoms in the neck and scapular regions.
167.I find that, even accepting (as I have) that symptoms developed in the days afterwards, there was opportunity to notify ISS of injury in the weeks after the incident on 16 June 2020. I accept Ms Chan’s evidence that she spoke to Mr Halkic a number of times over the period of a fortnight before finalising her report on 29 June 2020.
168.Mr Halkic agreed that safety was an important aspect of his role and agreed he was aware of the importance of reporting injuries.
169.Accordingly, with respect to s 18(6)(a), based on my factual findings in the case, I cannot be satisfied that it was ‘not reasonably practicable’ for Mr Halkic to have given notice.
170.However, with respect to s 18(6)(b), I am not persuaded that ISS would be ‘unfairly prejudiced’ by Mr Halkic’s failure to give notice of injury within the requisite time. Ms Chan was available to give evidence and there were contemporaneous records of the incident. On that basis, I conclude that it is appropriate to extend or waive the time limit based on s 18(6)(b).
171.If I am wrong about that, I turn next to s 18(6)(c). Given the harsh effects of the ‘complete defence’ provided by the notice provision, it is not uncommon in this jurisdiction for time to be extended where a worker has suffered injury and would otherwise be entitled to recover compensation. Usually, that will be because the Court concludes that reliance on the notice requirement would ‘result in a serious injustice to the person’.
172.Based on my findings in the present case, Mr Halkic’s entitlement to compensation is confined to medical and like expenses for a limited period to the end of July 2020 for his musculo-skeletal injury to the neck and upper scapular region (now resolved). In such circumstances, where the ultimate outcome is that an entitlement to compensation is relatively minor, it might be contended that there would not be an injustice that could be considered ‘serious’.
173.However, to my mind, it is clear from s 18(5) that it is the entitlement to recover compensation to which a consideration of whether there has been a ‘serious injustice’ is attached, rather than the scope of compensation ultimately recovered.
174.Mr Halkic had been pursuing an entitlement to compensation for weekly payments of compensation and medical and like expenses claimed injuries which he brought before the Court for consideration. As Magistrate Garnett observed in Trimboli v Camp Australia regarding the equivalent section of the AC Act:
To allow reliance on s 102 (5) would result in ‘serious injustice’ to Mrs Trimboli as contemplated by s 102 (6)(c) as it would cause her to be disentitled to compensation … under the Act without her claim being determined on its merits.[5]
[5][2014] VMC 21 [22].
175.ISS also relied upon the additional statutory defences under ss 20 and 22 of the Act in relation to the delay in making the claim.
176.Counsel for Mr Halkic submitted that with respect to s 20, there was ‘a special excuse’ for Mr Halkic not making the claim within the applicable time limit. Those matters included a combination of circumstances: Mr Halkic holding an initial belief that he had recovered; then his symptoms either abating or being managed by the extended period during which he was not working; and then the occurrence or recurrence of symptoms in April 2021 when the claim was made.
177.In Duricic, Judge Parrish concluded that the equivalent provision in s 103(7) did not require ‘exceptional’ or ‘extraordinary’ circumstances to satisfy as a special excuse.
178.I find, on balance, the circumstances referred to by Mr Halkic’s Counsel do constitute a ‘special excuse’ to allow an extension of time to make the claim.
179.With respect to s 22, essentially relying on the same matters, it was submitted by Counsel for Mr Halkic that he could not reasonably have made the claim whilst still employed by ISS.
180.Again, although I have ultimately made findings against Mr Halkic in terms of the compensability of his claimed back injury and other injuries, I nevertheless conclude that, based on the circumstances referred to by Counsel, it was reasonable for Mr Halkic not to have made the claim prior to his redundancy (on 29 November 2021).
Conclusion
181. The parties may make submissions as to costs and final orders or may seek an adjournment to a further mention by which date minutes of proposed orders may be filed.
MAGISTRATE HOARE
5 December 2022
0
6
0