Horvath and K&S Freighters Pty Ltd (Compensation)

Horvath and K&S Freighters Pty Ltd (Compensation) [2018] AATA 4662 (19 December 2018)
Division: GENERAL DIVISION
File Number(s): 2013/2268; 2015/2974
Re:Jamie Horvath
APPLICANT

K&S Freighters Pty LtdAnd
RESPONDENT

DECISION
Tribunal:Member R. West
Date:19 December 2018
Place:Melbourne

The Tribunal affirms the reviewable decisions of the Respondent in application no. 2013/2268 and application no. 2015/2974
..............[sgd]..........................................................
Member R. West
Catchwords
COMPENSATION – eye injury – gas cylinder incident – whether incident occurred as alleged – psychiatric condition subsequent to eye injury – s. 14 of the Safety, Rehabilitation and Compensation Act – Decision under review affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988
REASONS FOR DECISION
Member R West
19 December 2018
INTRODUCTION

This is an application for the review of:
a)a reviewable decision of the Respondent dated 29 April 2013 affirming a determination of 10 December 2012 that the Respondent was not liable to pay compensation pursuant to s 14 of Safety, Rehabilitation and Compensation Act 1988 (SRC Act) in respect of the loss of vision in the left eye alleged to have been sustained on 10 October 2012 (application no 2013/2268)[1]; and
b)a reviewable decision of the Respondent dated 12 June 2015 affirming a determination of 14 May 2015 that the Respondent was not liable to pay compensation pursuant to s 14 of the SRC Act in respect of the alleged onset of a psychiatric condition subsequent to the injury to the left eye allegedly sustained on 10 October 2012 (application no 2015/2974)[2].
[1] Application No. 2013/2268
[2] Application No. 2015/2974
A hearing of the applications for review was conducted by the Tribunal over four days from 29 October to 1 November 2018. The Applicant was self-represented. The Respondent was represented by Ms Ann McMahon of Counsel, instructed by Clarke Legal.
BACKGROUND
The Applicant alleges that, on 10 October 2012, he sustained an injury to his left eye when he was struck by a burst of hydrogen gas expelled from a cylinder he was handling during the course of his employment with the Respondent (Incident).
On or about 19 October 2012 the Applicant lodged a claim under the SRC Act in relation to the Incident alleging that he had sustained an acute loss of sight in his left eye (the First Claim). The claim was declined by the Respondent by a determination dated 10 December 2012. The Applicant requested reconsideration of the primary determination on 13 January 2013. The Respondent affirmed the primary determination on 29 April 2013 (the First Decision).
The Applicant lodged an application for review of the First Decision with this Tribunal on 15 May 2013.
On or about 27 February 2015, the Applicant lodged a further claim under to the SRC Act with respect to the alleged onset of a psychiatric condition, subsequent to the physical injury allegedly sustained in the Incident (the Second Claim). The Respondent denied liability in respect of the Second Claim in a determination dated 14 May 2015. The Respondent affirmed this decision on 12 June 2015, following a request for reconsideration of the primary determination (the Second Decision).
The Applicant lodged an application for review of the Second Decision with this Tribunal on 17 June 2015.
The Tribunal has determined that the applications for review of the First Decision and the Second Decision be heard concurrently.
LEGISLATIVE FRAMEWORK
Under s 14 of the SRC Act, an employee who is incapacitated for work as a result of an injury is entitled to compensation in accordance with that section. An ‘injury’ is an injury arising out of, or in the course of, the employee’s employment and includes a physical or mental injury[3].
[3] Section 5A(1) of the SRC Act.
EVIDENCE
In conducting the review I have had regard to:
a)each of the documents produced to the Tribunal by the Respondent pursuant to s 37 and s 38AA of the Administrative Appeals Tribunal Act 1975 (the T-Documents)[4];
[4] In referring to the T Documents in this decision the relevant page numbers are cited, for example, T34 refers to the document at page 34 of the T Documents as filed.
b)a folder of medical reports produced to the Tribunal by the Respondent numbered 1 to 142 and marked as Exhibit R14 (the RM Documents)[5];
[5] In referring to the medical reports contained in the folder and described as the RM Documents in this decision the relevant page number in the folder is cited, for example, RM 34 refers to the document at page 34 of the RM Documents as filed.
c)the oral evidence of the Applicant;
d)the following documents tendered by the Applicant:
i.two photographs of the Applicant’s truck[6];
[6] Exhibits A1 and A2
ii.a video showing how the Applicant handled the cylinder;[7]
[7] Exhibit A4
iii.a medical report by Dr Paul Kornan, dated 18 March 2015[8];
[8] Exhibit A3
iv.medical reports by Dr David Gale, dated 11 December 2014[9] and 11 June 2015[10]; and
[9] Exhibit A5
[10] Exhibit A6
v.a Certificate of Capacity, dated 30 January 2013[11];
[11] Exhibit A7
e)the expert evidence of Robert Hutchinson and his written reports of 5 November 2015[12] and 7 March 2018[13];
[12] Exhibit R10
[13] Exhibit R11
f)The following documents tendered by the Respondent:
i.Air Liquide Invoice, dated 11 October 2012[14];
[14] Exhibit R1
ii.Statement of Service, dated 12 March 2015[15];
[15] Exhibit R4
iii.Air Liquide Safety Data Sheet, Hydrogen, Compressed[16]; and
iv.a bundle of photographs of the ramp on the loading platform of the truck[17];
g)the witness statements and oral evidence of the Respondent’s witnesses:
i.Joan Lake[18];
ii.Sandra Code[19];
iii.Beau Harris[20];
iv.Nicholas Oakes[21]; and
v.Justin Bradfield[22].
[16] Exhibit R6
[17] Exhibit R12
[18] Witness statement Exhibit R5
[19] Witness statement Exhibit R7
[20] Witness statement Exhibit R9
[21] Witness statement Exhibit R8
[22] Witness statement Exhibit R13
CONTENTIONS
In broad terms the Applicant contends that he suffered an acute loss of vision in his left eye as a result of the Incident; and has sustained a psychiatric condition, namely a major depression, as a result of the injury he sustained in the Incident.
The Respondent contends that:
h)the Incident did not occur as alleged by the Applicant;
i)the Applicant did not sustain an injury to his left eye on 10 October 2012 as alleged; and
j)the Applicant has not sustained a psychiatric injury.
In the alternative the Respondent contends that:
a)if the Applicant did sustain an injury to his left eye in the Incident as alleged, he is precluded from recovering compensation by reason of s 14(3) of the SRC Act because the injury was caused by the Applicant’s serious and willful misconduct by not wearing safety glasses at the time of the Incident; and/or
b)if the Applicant is suffering from a psychological condition it is not related to an injury suffered by the Applicant as a result of the Incident.
THE INCIDENT
The central consideration in this case is to determine what occurred on 10 October 2012 in relation to the alleged Incident.
Background Facts
There are some background facts related to the Incident which are not in serious dispute. Having reviewed all of the evidence, I make the following findings in relation to the background circumstances to the Incident.
The Applicant was engaged by DTM Contract Distribution, a wholly owned subsidiary of the Respondent, as a delivery truck driver. The Respondent had a contract with Air Liquide to deliver gas cylinders (also referred to as bottles) to its customers. The gas cylinders were at all times the property of Air Liquide. The Respondent’s vehicles were loaded with full cylinders each day by Air Liquide employees and the driver would be given delivery instructions by Air Liquide in the form of a consignment sheet. The drivers would attend work at 5.30 am each day and obtain their delivery schedule for the day, then perform a safety check on their truck, and leave the depot by 6.00 am. The drivers would then deliver full cylinders of various gases to the Air Liquide customers’ premises in accordance with the consignment sheet and collect empty cylinders from the customer’s premises for return to Air Liquide. Each driver was required to complete a “Drivers Daily Worksheet”, recording the delivery and collection of cylinders from each customer site.
On 10 October 2012 the Applicant commenced his delivery run from the Sunshine depot at 5.45 am and completed 4 deliveries before attending at the Hospira site at 1 Lexia Place Mulgrave (the Site). The Applicant completed a Drivers Daily Worksheet indicating that he arrived at the Site at 9.40 am and delivered 8 cylinders, and collected 4 cylinders, and left the Site at 10.20 am[23].
[23] T34 at p104
Following the Incident the Applicant drove out of the Site and parked his truck in the street outside the Site[24]. The Applicant then attended at the Hospira reception and was sent across the road to the Health Services Centre where he was treated by Sandra Code, a registered nurse and the Centre Manager. Ms Code flushed the Applicant’s left eye with eye wash for 15 to 20 minutes and at about 11.55 am she transported him to Valewood Clinic in Mulgrave. While at the clinic, he was seen by Dr Bevz who referred him for examination by Dr Jan Giles, an ophthalmologist.
[24] The truck was subsequently collected by Justin Bradfield, the Applicant’s supervisor, who completed the Applicant’s run.
These background facts are common ground. The controversial issue is what happened from when the Applicant entered the Site until he parked his truck in the street. The only evidence as to what occurred during this time is the Applicant’s own testimony. There are no independent witnesses. The ‘accident site’ was not preserved and independently investigated[25].
Applicant’s Evidence
[25] This issue was the subject of evidence in the proceedings. The Applicant admitted that he completed the loading of his truck after the alleged incident and drove it out of the Site thereby removing the essential evidence from the accident scene. Ms Lake requested Mr Bradfield to set the relevant cylinder aside and Mr Bradfield gave evidence that he did so, but there is no evidence that it was subject to any further examination. Ms Lake also gave evidence that she attempted to initiate a Causal Tree Investigation into the Incident but this did not eventuate because the Applicant refused to attend.
In an incident report completed by the Applicant on 11 October 2012[26] the Applicant described the Incident and the immediate containment action taken as follows:
“putting on tailgate lifter - used force to put bottle up ramp - top turned as was loose and me gloves hit the valve on and gas shot me in the eye hard. Started stinging, then a few minutes later was burning feeling - stinging bad, loss of vision - went blurry - can’t see much as blurry - hurting - head aches - sick feeling - feeling unbalanced.
Used eyewash kit – rang boss and directed me to go to site first aid. I went to site first aid and (Sandra Code) look after me. Washing eye for 15 mins and put in drops – took me to the doctor they use – he seen me and referred me to eye doctor as I can’t see – blurred vision when looking at eye chart”[27]
[26] T35
[27] T35 at p103
On 1 November 2012 the Applicant lodged a workers compensation claim form dated 19 October 2012 in relation to the Incident[28]. In this form the Applicant described the chain of events that led to the injury as follows:
“Rolling gas bottle, top was loose and was blasted by a HP Hydrogen gas bottle into left eye from bottle when putting onto tailgate – top of bottle was loose when went to roll hand slipped and valve turned on an HP Hydrogen gas shot me in my eye”[29]
[28] T11
[29] T11 at pp 16-17
In his evidence in chief the Applicant described the Incident in some detail.
The Applicant stated that after arriving at the Site he dropped off a “couple of packs” of hydrogen gas, using the crane on his truck to hook them up. He then said that he then had to pick up return bottles. He said that he was told at a tool box meeting a few days earlier that, “regardless of what’s sitting there”, full or empty, he must pick up all loose bottles because there is no method for identifying which bottles are full or empty and customers had complained that K&S drivers were not picking up empty bottles for which the customer was charged a rental fee. He said that he noticed that at the Site the customer had “heaps of bottles so I had to pick them all up”.
He said that the area in which the loose bottles were kept at the Site was 50 to 100 metres away from the area he had parked his truck to unload the two packs. He said that he had to move the loose cylinders 50 to 100 metres to load them onto his truck. He said that he had to move eight bottles per the order on his run sheet but he could remember doing a lot more than eight. He said that “if there was a bottle sitting there we had to pick it up but we have to note it on our run sheet”. The Applicant described how he rolled the cylinders to the truck and tendered in evidence a video demonstrating his technique[30]. The technique was to hold the cylinder by the protrusion on the top of the plastic guard[31] at the top of the cylinder in his left hand, tilting the cylinder and imparting a rotating motion to the cylinder using his right hand and foot.
[30] Exhibit A4
[31] referred to as the ‘mushroom’
He stated that when he got the cylinder to the truck he had to manoeuver the cylinder up a small ramp (20 cm high) onto a tailgate which could then be raised to the level of the truck’s tray for loading. To get a cylinder up the ramp, he said that he held the cylinder, angled it and put it on his stomach and spun it on its axis to roll it up the ramp.
He said that he had done this for eight cylinders but the next one had a guard which was loose. He said:
“I’ve grabbed it and gone to do it and sort of pull the bottle and move and lift it, it’s turned and as I’ve done that, its hit the valve and got me right in the face and then I just remember – I don’t know if the bottle hit me in the head, I don’t know if I dropped the bottle, I can’t remember. All I remember is, I felt like I got shot in the face…I had this excruciating pain and just screamed. It was horrific. …I didn’t know what to do”[32].
[32] Transcript p 15.1-7
He said that after that, all he remembered was calling his supervisor and telling him that he’d had an accident and “got shot in the face with a gas bottle and my eye”. He said he was hysterical and screaming to his supervisor on the phone. He said that his supervisor told him to calm down and go to first aid. He said that his first response after he stopped screaming was to jump into the truck and use the eyewash kit provided to wash out his eye which was stinging and burning. He said that he used all of the eyewash in the kit and then some water in a bottle.
He said that he “raced straight to the reception” and the receptionist took him straight to a nurse named Sandra who washed his eyes.
Under cross-examination the Applicant was unable to recall many details of the Incident.
a.He said that he had no idea where he entered the Site[33].
b.He repeatedly insisted that he had delivered hydrogen cylinders to the Site that day and denied that they could have been helium[34] contrary to the documented evidence[35].
c.He could not recall whether the hydrogen cylinder which he said caused his injury was the last cylinder he collected or whether he had first loaded the other three helium cylinders[36].
d.He could not remember whether he had been struck by the cylinder[37].
e.He could not confirm whether or not the cylinder had fallen down[38].
f.He said that he was not sure where the Incident happened in relation to the ramp on the truck[39]
[33] Transcript T66.26-27
[34] Transcript 70-72
[35] Exhibit R1.
[36] Transcript 86.17
[37] Transcript 96.30
[38] Transcript 105.39 and 107.02
[39] Transcript 109.33-41
The Applicant contradicted aspects of his initial testimony, including:
a.The Applicant admitted under cross-examination that he had picked up 4 return cylinders (three helium and one hydrogen) and not eight or more as initially claimed[40]. He subsequently contradicted this evidence by stating that, “I 1000 percent remember there was more than eight red bottles there, sitting there, and I picked them all up”[41].
b.In describing the Incident he said that he went to grab the cylinder as it slipped and he “turned the valve on”[42]. He later said that his glove caught the valve and when asked which part of the glove, he said initially that it was ‘the whole thing’[43], then the fingers[44] and then “Yes well, so just the whole – maybe the little bits and pieces, the side little bit sticking out of your glove”[45]. Later again he said that he grabbed the valve[46].
c.Contrary to his initial evidence that he went straight to Hospira’s reception following the Incident, he admitted under cross-examination that after the alleged Incident he washed out his eyes using the eyewash, completed the loading of his truck, drove the truck out of the Site, and called his supervisor before going to reception.
d.After claiming to have injured only his left eye in various accounts of the Incident he raised under cross-examination for the first time that he had also suffered a 30% loss of vision in his right eye[47].
[40] Transcript 77.26-30 and 80.15
[41] Transcript 86.37
[42] Transcript 96.46
[43] Transcript 104.42
[44] Transcript 105.10
[45] Transcript 105.13
[46] Transcript 106.01
[47] Transcript 143.04
Aspects of the Applicant’s evidence were directly contradicted by other witnesses:
a.Justin Bradfield, the Applicant’s supervisor, gave evidence that he located the hydrogen cylinder that the Applicant said had caused his injury and noted that the guard was not cracked and there was no movement of the guard contrary to the Applicant’s claim that it was loose[48].
b.Mr Oakes, the Applicant’s former Manager, gave evidence about the protocol for storing cylinders under the Dangerous Goods Act, which required the separation of full and empty cylinders.
c.Ms Code, the Health Services Manager of Hospira who treated the Applicant at the Site, gave evidence that when the Applicant presented at the gate to the medical centre he was walking normally, did not appear to be unbalanced, did not complain of headaches, feeling sick or that he could not see. She said he was holding his left eye and complained of blurred vision consistent with his eye having been flushed out with water. She said the eye was not bloodied and it did not appear to her (an experienced registered nurse) that the problem with his left eye was serious[49]. She did not confirm the Applicant’s claim[50] that he told her that he been screaming in pain.
[48] Exhibit R13 at [13]
[49] Exhibit R7 at [9] - [11]
[50] Transcript 110.33
The Applicant’s demeanour in the witness box was characterised by a reluctance to make reasonable concessions. He was deliberately evasive in his answers to many questions and he gave implausible explanations for many aspects of the alleged Incident. He described the Incident as a “horrendous accident” which left him screaming in pain, yet he waited to finish loading the four return cylinders, secured them by tying them down, raised the hoist on his truck and drove out of the Site and parked the truck in the street before calling his supervisor[51] and going to reception to seek medical attention. He said that when the cylinder slipped he heard the gas escape and felt something in his eye straight away[52], but then said he thought he may have been stung by a bee[53]. He was evasive when questioned about the time of his departure from the Site as recorded on his Drivers Daily Worksheet,[54] and gave an implausible explanation that he had factored into the time a 30 minute meal break which he had not taken. He said that he was not wearing safety glasses at the time of the Incident because his tinted glasses had fogged up and, while there were clear glasses in his truck, he didn’t get them because it was too far to go to truck, even though he had made three trips to the truck to load cylinders before the Incident. He asserted that the cylinder guard on the cylinder was cracked for the first time under cross-examination[55] but when pressed about this statement said “I’ll withdraw my statement, if you don’t believe it then. I’ll just leave it as loose. It was loose, damaged”[56].
[51] Transcript 111.17
[52] Transcript 96.07
[53] Transcript 94.40
[54] Transcript 75
[55] Transcript 97.03
[56] Transcript 99.16

For all of these reasons I find the Applicant to be an unreliable witness.
Expert Opinion
Expert evidence was given by Mr Robert Hutchison, a chartered Chemical Engineer. He provided a report dated 5 November 2015[57] in which he set out various re-enactment tests conducted with the same type of cylinder based on the description of the Incident given by the Applicant. He concluded that the description of the Incident given by the Applicant was a very unlikely scenario and a range of factors would all need to be present before the Incident could possibly occur as described. After viewing the Applicant’s video of his technique for handling the cylinder[58], Mr Hutchison issued a supplementary report[59] in which he concluded that the Incident could not have occurred as described by the Applicant. This is because the video disclosed that the Applicant used a left-handed method of moving the cylinder. Mr Hutchison noted that for a left-handed person, the rotation of the cylinder would have caused the valve to tighten, not loosen, if grabbed. He concluded that:
“It is not possible for a left-handed person trundling a cylinder with or without a loose valve guard to grab at the valve handle such that gas is ejected from the cylinder into the eyes of the person trundling the cylinder”
[57] Exhibit R10
[58] Exhibit A5
[59] Exhibit R11
Ms Lake, a Systems Specialist for Air Liquide and State Safety Manager at the time of the Incident, gave evidence that she had worked for Air Liquide for 19 years in occupational safety roles and was not aware of a similar incident occurring in the manner alleged by the Applicant[60]. She said she found it difficult to comprehend the mechanism of the injury as alleged. She said that she had seen various reconstruction demonstrations of the alleged Incident and it seemed unlikely to her that the accident could have occurred as alleged[61].
[60] Exhibit R5 at [36]
[61] Exhibit R5 at [37]
Ms Lake also gave evidence regarding the characteristics of hydrogen gas and provided an Air Liquide Safety Data Sheet for compressed hydrogen[62], which states that adverse effects are not expected from contact of hydrogen gas with the eyes.
Medical Evidence
[62] Exhibit R6
The Applicant’s description of the Incident and his alleged injury is not consistent with the evidence of persons who examined the Applicant shortly after the alleged Incident.
The Applicant described the effects as: “a burning feeling - stinging bad - loss of vision - went blurry - can’t see much as blurry - hurting - head aches - sick feeling - feeling unbalanced”. Ms Code, who treated the Applicant shortly after the Incident, said he was walking normally, did not appear to be unbalanced, did not complain of headaches, feeling sick or that he could not see. She said he was holding his left eye and complained of blurred vision consistent with his eye having been flushed out with water. She said the eye was not bloodied. Mr Oakes gave evidence that, after examining the Applicant on the day of the accident, Dr Giles advised him privately that there was no injury from the claimed Incident but there was some pre-existing condition from early childhood. Dr Giles reported on 16 October 2012 that he saw the Applicant on 11 October 2012[63]. He noted that a YAG capsulotomy performed the day before had not improved the Applicant’s vision and he concluded that the Applicant’s capsular opacification was clearly not work related. Dr Giles noted that the Applicant had complained of headaches and vomiting but he noted that his eye was white and quiet and concluded that the nausea and vomiting were not related to his work injury. He found no clinical signs of damage to the Applicant’s left eye. Dr Fleming, a radiologist, who conducted an orbital ultrasound on the Applicant on 12 October 2012, noted that “both globes have normal appearance’ and that ‘the ophthalmic artery, the central retinal artery and vein and posterior ciliary arteries have a normal appearance with normal velocities and arterial waveforms”[64]. Dr Giles reported that he saw the Applicant on 22 October 2012 about an unexplained reduction of vision in his left eye and noted that his ocular examination was ‘entirely normal’[65].
[63] RM67
[64] RM69
[65] RM68
Medical records obtained from the Royal Children’s Hospital confirmed that the Applicant was seen by Dr John McKenzie, an ophthalmologist, in 1994 and was diagnosed with a gradual deterioration in his left eye, secondary to a cataract, resulting in a visual acuity of 6/60, down from 6/18, and subsequently had surgery for a cataract extraction with a lens implant[66]. Acuity testing post-surgery indicated a recording of 6/30 after one week.
[66] RM 1-17
The Applicant was seen by Dr Heather Mack, an ophthalmic surgeon, in November 2012 and March 2015. Dr Mack reported on 30 March 2015[67] that she examined the Applicant and conducted objective visual acuity testing which showed that the Applicant’s right eye recorded a reading of 6/7.5 and his left eye less than 6/60. She opined that the left eye very likely had amblyopia due to a combination of high astigmatism and congenital cataract. She stated that there is no clear diagnosis for visual loss due to the incident on 10/10/2012 and the left eye does not show signs of further injury sustained 10/10/2012. She concluded that she could not confirm that the current left eye condition is work related.
[67] RM 74-80 and also her earlier report of 26 November 2012 at RM 72
The Respondent’s evidence included medical reports by Dr Mark Lazarus, eye specialist, dated 18 April 2013 (with addenda dated 19 February 2014 and 23 February 2015), 22 May 2015 (with addendum dated 6 November 2015), 7 May 2018 and 21 June 2018.[68]Dr Lazarus’ diagnosis over the period he examined the Applicant was consistent in that the poor vision in the Applicant’s left eye was due to a pre-existent amblyopia and cataract and not the alleged Incident.
[68] RM 81 - 102
The Applicant relied on two medical reports of Dr David Gale dated 11 December 2014[69] and 11 June 2015[70], as well as evidence of eye tests he had for endorsed truck and forklift licencing purposes prior to the alleged Incident which had recorded that the vision in his left eye was 6/6. He confirmed in his evidence that this testing was not carried out by a doctor. Dr Lazarus commented in his report of 6 November 2015[71] that visual acuity testing is generally done in a perfunctory manner by various licensing groups and in his experience many patients who hold endorsed licences should have failed the visual tests. He also noted in his report of 22 May 2015[72] that an acuity reading of 6/6 in the left eye was not possible given the previously recorded readings in 1994, post-surgery.
[69] Exhibit A5
[70] Exhibit A6
[71] RM 91
[72] RM 86
The reports of Dr Gale were tendered by the Applicant at the close of the hearing without any prior notice to the Respondent. This was despite directions made by the Tribunal that required that the filing and service of all reports and other documents to be relied on by either party were to be completed prior to the hearing. As a result of the late tendering of the reports the Respondent was denied the opportunity to test Dr Gale’s conclusions. I accepted the reports into evidence on the basis that I would assess the weight to be given to the reports having regard to the lack of an opportunity for them to be tested by the Respondent. I do not give the report of 11 June 2015 any weight. It deals with the Applicant’s level of impairment and does not address the issue of causation of his injury. The report of Dr Gale dated 11 December 2014 was made available to Dr Lazarus and commented on by him in his report of 6 November 2015, and in that sense the Respondent had an opportunity to address Dr Gale’s report. Dr Gale concluded that the Applicant has a permanent loss of visual acuity in his left eye which is not inconsistent with the diagnoses of Dr Lazarus and Dr Mack. I do not accept his opinion that the loss of vision in the left eye was due to a significant concussion injury when the left eye and eyelids sustained a blow of either liquid or gas and a suspected extremely rapid cooling. Dr Lazarus refuted the supposition regarding the rapid cooling of the eye and I accept this evidence. Dr Gale’s opinion as to causation also proceeds on the assumption that the Applicant had 6/6 vision in his left eye before the alleged Incident as established by visual testing for the Applicant’s endorsed licences. Dr Lazarus states that a visual acuity of 6/6 is impossible given the earlier diagnosis of impaired vision and points to the unreliability of visual testing for licence purposes. I prefer the opinion of Dr Lazarus.
CONCLUSION
In determining whether the Applicant sustained an injury causing loss of vision in his left eye at the Site on 10 October 2012 in the manner described by the Applicant, I am mindful that the only direct evidence of what occurred is the testimony of the Applicant. There were no other witnesses to the alleged Incident and there was no independent examination of the actual accident site.
The Applicant did not present as a truthful or candid witness. His description of the alleged Incident omitted relevant detail. Aspects of his evidence were contradictory. He was evasive in answering questions and he gave implausible explanations for some of his claims.
The Applicant’s account of the alleged Incident was contradicted on important matters by the evidence of other witnesses. Mr Banfield gave evidence that he located the gas cylinder which was allegedly the cause of the Incident and examined it. He stated that the guard on the cylinder was neither cracked nor loose as claimed by the Applicant. Ms Code’s description of the Applicant when he attended the Hospira medical centre immediately after the Incident did not accord with the Applicant’s description of his condition or the alleged injury to his eye.
The Applicant’s claims are not supported by the medical evidence. While it is clear that the Applicant has reduced vision in his left eye, the weight of medical opinion is that this is a result of a congenital issue treated with cataract surgery in childhood and not from an injury sustained in the alleged Incident.
The expert opinion of Mr Hutchinson was that it was impossible for the Incident to have occurred as claimed by the Applicant. Ms Lake, who had extensive relevant experience in the industry, said she had never heard of a similar incident and offered the opinion that the alleged Incident was unlikely to have occurred in the way the Applicant described. The objective evidence of the effect of exposure to hydrogen gas on the eyes does not support the Applicant’s claims.
In conclusion, having considered all of the evidence, I am satisfied that the Applicant presented to the Hospira reception at or about 11.00 am on 10 October 2012 with blurred vision having washed out his eyes with water or another solution. I am not satisfied that the Incident as claimed by the Applicant occurred or that the Applicant sustained an injury to his left eye as alleged.
Accordingly I am not satisfied that the Applicant sustained an injury to his left eye arising out of his employment with the Respondent.
I affirm the reviewable decision of the Respondent dated 29 April 2013 in matter no. 2013/2268.
The Applicant’s claim in relation to matter no. 2015/2974 is that he suffered the onset of a psychiatric condition subsequent to the injury to the left eye allegedly sustained in the Incident on 10 October 2012. The claim is predicated on a finding that the Incident occurred and that the Applicant sustained an injury to his left eye in the Incident. As I have not found that the alleged Incident occurred or that the Applicant sustained an injury to his left eye in the Incident if it occurred, the claim in matter no. 2015/2974 must fail.
I therefore affirm the reviewable decision of the Respondent dated 12 June 2015 in matter no. 2015/2974.
DECISION
The decision of the Respondent dated 29 April 2013, affirming a determination of 10 December 2012, that the Respondent was not liable to pay compensation to the Applicant pursuant to s 14 of the SRC Act, in respect of the loss of vision in the left eye alleged to have been sustained on 10 October 2012, is affirmed.
The decision of the Respondent dated 12 June 2015, affirming a determination of 14 May 2015, that the Respondent was not liable to pay compensation pursuant to s 14 of the SRC Act, in respect of the alleged onset of a psychiatric condition subsequent to the injury to the left eye allegedly sustained on 10 October 2012, is affirmed.

I certify that the preceding 54 (fifty-four) paragraphs are a true copy of the reasons for the decision herein of Member R. West

.......................[sgd].................................................
Associate
Dated: 19 December 2018

Date(s) of hearing: 29, 30, 31 October and 1 November 2018

Applicant: In person

Counsel for the Respondent: A. McMahon

Solicitors for the Respondent: Clarke Legal

[2018] AATA 4662

19 December 2018

Key Legal Topics

Areas of Law

Employment Law

Negligence & Tort

Legal Concepts

Causation

Remedies

Statutory Construction

Date(s) of hearing:	29, 30, 31 October and 1 November 2018
Applicant:	In person
Counsel for the Respondent:	A. McMahon
Solicitors for the Respondent:	Clarke Legal