John Irwin and K & S Freighters Pty Limited
[2014] AATA 840
•7 November 2014
[2014] AATA 840
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/5586
Re
John Irwin
APPLICANT
And
K & S Freighters Pty Limited
RESPONDENT
DECISION
Tribunal Egon Fice, Senior Member
Date 7 November 2014 Place Melbourne 1. The Tribunal sets aside the reviewable decision of the Respondent and in substitution decides that the Respondent is liable to pay compensation in accordance with the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) in respect of the Applicant’s claimed injury to the right shoulder.
2. The Tribunal remits the matter to the Respondent for the purpose of calculating the cost of reasonable medical treatment of the Applicant pursuant to s. 16 of the SRC Act and the calculation of compensation to which the Applicant may be entitled under s. 19.
3. The Respondent must pay the Applicant’s costs and disbursements incurred in this proceeding in accordance with s. 67 the SRC Act.
........[sgd Egon Fice]............................................................
Egon Fice, Senior Member
COMPENSATION - Injury simpliciter - right rotator cuff tendinitis - injury or aggravation of injury - delayed report of injury - treatment prior to claim - apparent inconsistent evidence - Jones v Dunkel inference - decision set aside and remitted.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B, 14, 16, 19, 62, 64, 67
CASES
Jones v Dunkel (1959) 101 CLR 298
Kumar and Minister for Immigration and Citizenship (2009) 107 ALD 178
R v Lao (2002) 5 VR 129
REASONS FOR DECISION
Egon Fice, Senior Member
7 November 2014
Mr John Irwin was employed by K & S Freighters Pty Ltd (K & S Freighters) as a truck driver. He commenced employment on 10 October 2011 as a casual employee and later was offered a full time permanent position as a shuttle driver. On 23 March 2012 Mr Irwin reported to the Fleet Controller that he had a sore right shoulder. He did not complete an incident report because he was uncertain about whether the pain was work‑related. He attended a physiotherapist for a period of some seven weeks before being advised that he may have suffered a work injury. He then lodged an Incident Report Form on 11 May 2012.
Following investigation of Mr Irwin’s claim, in a letter dated 18 September, 2012 K & S Freighters informed Mr Irwin that it had determined it was not liable to pay compensation to him pursuant to s. 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) in respect of right rotator cuff tendinitis sustained on 23 March 2014.
On 26 September 2012 Maurice Blackburn Lawyers, acting on behalf of Mr Irwin, requested that K & S Freighters reconsider its decision made on 18 September 2012 pursuant to s. 62 the SRC Act. Following reconsideration, K & S Freighters informed Mr Irwin in an undated letter that the determination made on 18 September 2012 was affirmed. On 11 December 2012 Mr Irwin lodged an application with the Tribunal in accordance with s. 64 of the SRC Act seeking review of the reconsidered decision made by K & S Freighters.
The issues which I am required to determine are:
(a)whether Mr Irwin sustained an injury, or an aggravation of an injury in the primary sense, arising out of or in the course of his employment which resulted in incapacity for work;
(b)whether Mr Irwin suffered an aggravation of an ailment which was contributed to, to a significant degree, by his employment with K & S Freighters;
(c)if the answer to (a) or (b) is in the affirmative, whether K & S Freighters is liable to pay the cost of reasonable medical treatment Mr Irwin incurred as a consequence of his work-related injury; and
(d)if the answer to (a) or (b) is in the affirmative, whether Mr Irwin was entitled to weekly payments of compensation in respect of the periods of incapacity for work which resulted from his injury.
THE RELEVANT LEGISLATION
Section 14 of the SRC Act deals with liability to pay compensation for injuries. It provides:
14.(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
(2) Compensation is not payable in respect of an injury that is intentionally self-inflicted.
(3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self‑inflicted, unless the injury results in death, or serious and permanent impairment.
Injury is defined in s. 5A of the SRC Act. Relevantly, it provides:
5A. (1) In this Act:
injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
…
Disease is defined in s. 5B of the SRC Act. Relevantly, it provides:
5B. (1) In this Act:
disease means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
CIRCUMSTANCES OF THE CLAIMED INJURY
Prior to commencing work for K & S Freighters, Mr Irwin was required to attend a pre‑employment medical to ensure he was fit to perform his role. In the patient questionnaire completed prior to his medical examination, Mr Irwin indicated that he did not suffer from any neck, back or limb disorders. On clinical examination conducted on 28 September 2011, his upper limbs were assessed as normal in appearance with the normal joint movements. The examiner noted: Appears fit/well. Dr James Crompton assessed Mr Irwin as meeting the relevant medical criteria for an unconditional licence and that he required no further assessment.
The following account of the work Mr Irwin did for K & S Freighters is taken from his witness statement dated 23 March 2014, which was taken into evidence.
Mr Irwin testified that his main duty with K & S Freighters was as a shuttle driver. He was given the run between Coca-Cola Amatil’s depot at Moorabbin and Cokepak in Mentone. He did about 10 to 12 runs per eight-hour shift. The trailer which was attached to the truck which he drove had curtains and gates which had to be opened and closed on each loading and unloading of freight.
Mr Irwin testified that the opening and closing of the trailer curtains and gates was heavy work performed with his arms above shoulder height. He said the curtains and gates on his trailer were in poor condition, the top of the curtains running down the passenger side of the trailer being ripped causing them to catch on the rear door that rolled up into the roof frame. Mr Irwin said he had to try and whip the curtain passed the rough edges of the roller door bracket each time he opened and closed the curtains. He said this was difficult as the curtains were in excess of 4 m in height and he was performing this action up to 24 times each day.
Mr Irwin also explained that the side walls of the trailer consisted of five panels on each side. They needed to be opened manually by the driver at the Mentone depot. As the roof of the trailer was in fact supported by the side gates, only three could be opened on each side at one time otherwise the roof would bow to such an extent that a forklift would be needed to raise it. He said that opening and closing the gates required a lot of force because of the tendency for the roof to bow and the curtains tracked poorly having to be flicked over damaged parts.
Mr Irwin said that while he was at K & S Freighters, he reported the problems with the curtains on Coca-Cola trailer 013, which was the trailer he generally used. He said that he recorded the damage on daily check sheets for several weeks and when nothing was done about that, he approached management face-to-face. Mr Irwin said he was told that no money was being spent on repairing the trailer because the curtains were due to be renewed and the gates removed. He said this in fact happened after he had resigned from his employment with K & S Freighters except for one trailer which retained the original setup.
In support of his claims regarding damage to curtains and gates, Mr Irwin put into evidence a document referred to as a Work Order History Report dealing with CCT 013 (Coca-Cola trailer 013) for the period 30 October 2011 to 30 April 2012. The relevant entries are as follows:
·16 November 2011 – replaced RHS Gate nut 2
·7 February 2012 – broken latch on Gate – roll pin in latch too small, no replacements in stock so temp repair done with bolt
·8 March 2012 – 1. Repaired door cable 2. Repaired curtain 3. Replaced brake booster – TODDCO REPLACED DOOR CABLES
Mr Jack Comito, who is currently the DTM Business Development Manager with K & S Freighters, in 2012, was the acting Operations Manager employed by K & S Freighters based at the Coca-Cola Amatil depot at Mentone. He provided a witness statement dated 12 July 2014 which was admitted into evidence and he also gave oral evidence at the hearing.
Mr Comito said that he had examined K & S Freighters’ records which indicated that on the day Mr Irwin claimed he suffered his injury, trailer number CCT 003 was allocated to him. That particular trailer also had the K & S Freighters number CCT 1055. Mr Comito explained that the system of work required each driver to fill out a Driver’s Daily Worksheet. On the front of that worksheet were details regarding the prime mover; trailer numbers; the driver as well as the location; and times and loads that were carried. On the reverse side of that document is a pre-trip inspection record on which the driver is required to indicate whether certain items on the prime mover and trailer are satisfactory; need attention or are not applicable. The driver was also required to certify that faults identified during the pre-trip inspection had been recorded on a Repair Request Form. On completing the pre-trip inspection report, the driver was required to certify that he completed the checks requested on the form and that to the best of his knowledge was satisfied that the vehicle/equipment was safe to use.
Mr Comito then testified that he had compiled a spreadsheet summary regarding vehicle allocations between 1 December 2011 and 31 March 2012 from the daily worksheets. He attached a copy to his statement of evidence. Mr Comito then said:
In all that time there has never been a mention of any problems to do with the curtains save and except for 19/01/12 when a report came in that trailer curtain ratchet needed to be replaced, but this was on CCT 003/CCT 1055 (trailer). Certainly in the month of February I can categorically state there was no report by the Applicant as regards any problems with any of the curtains on the trailer he used.
With respect to Mr Comito, the above quoted statement is incorrect. Mr Irwin reported in respect of trailer number S 216 on 30 January 2012:
buckle missing/curtains ripped/gate broken
I should also point out that the items listed on the pre-trip inspection form relate to and are certified by the driver as being safe to use. There is no item on that checklist dealing with the curtains or gates. The items listed generally deal with safety matters such as tyres, brakes, air lines, windscreens, mirrors and so on. The fact that there may be tears in the curtains or that the gates are difficult to use or jam would not, in my opinion, ordinarily result in a repair request form being raised on safety grounds.
Furthermore, I had in evidence photographs of trailer number CCT 004 which Mr Irwin said was typical of the Coca-Cola trailers in use at that time. Those photographs clearly disclose a heavy plastic curtain draped over the outside of the steel gates which are designed to slide along the length of the trailer. The curtain in the photograph is plainly damaged at the top by what appeared to be tears in the curtain. Also, where the curtain meets the top of the gate, it has obviously been catching on the gate when it is drawn along the trailer for closing. In fact, as Mr Irwin suggested, the design of the gates and curtain is poor. That is because the top of the curtain slides along the inside of the upper rail while the gate, and in particular the supporting rails of the gate, are flush with the external edge of the lower rail on the trailer when closed. It necessarily means that the curtain does not hang vertically but is angled inwards at the top, the lower part of the curtain being fastened to the outside of the lower rail. It is clearly apparent that sliding the curtain past the gate will necessarily result in the curtain striking the edges of the gate and possibly jamming. In addition, because the steel gates are released from the lower rail and slide sideways to open, it is not difficult to foresee that the weight of the gates hanging from the upper rail is likely to cause distortion of that rail. It is, plainly, an unsatisfactory arrangement. No doubt that is why K & S Freighters has altered the structure of these trailers since Mr Irwin ceased working.
Therefore, irrespective of Mr Comito stating that safe operating procedures (SOPs) were in use, given the unsatisfactory nature of the curtains and gates on the trailers, I cannot see how compliance with such procedures would necessarily avoid the problems expressed by Mr Irwin. K & S Freighters put into evidence the SOP dealing with Tautliner curtains.
Mr Irwin pointed out in cross-examination that the SOP related to Tautliner trailers and not Coca-Cola Amatil trailers. Although the SOP refers to chain supports for hanging gates whereas the Coca-Cola Amatil trailers are equipped with sliding gates, the SOP notes that chain supports for hanging gates does not necessarily apply to all trailers. It seems that the SOP is probably capable of being applied to both types of trailers.
Mr Comito also testified that at what he described as driver toolbox meetings (toolbox meetings) and HSR Consultative Committee Meetings, drivers were informed of the trailer refurbishing program. He said that 12 of the trailers in question were scheduled to undergo refurbishment for sandblasting, painting and to be fitted with load hold curtains. Notwithstanding the refurbishment program, Mr Comito said that maintenance repairs were still carried out to ensure safe working order of the equipment. He said that the only repairs regarding trailer presentation and cosmetic purposes such as paint scratches were to be held off until the refurbishment process was undertaken. In any event, in cross-examination, Mr Irwin said that he was not at work at the time that toolbox meetings took place which was around 2 to 2.30 p.m. While Mr Irwin’s daily worksheets disclosed that he often finished work before 2.30 p.m., there were also a number of entries indicating he worked beyond that time. However, that does not necessarily indicate he was available to attend those meetings.
Despite some of the contradictory evidence given regarding the operation of the gates and curtains on the Coca-Cola Amatil trailers, I find, on the balance of probabilities, that opening and closing the trailer curtains and gates was heavy work and was performed with arms above shoulder height. That is particularly apparent from the photographs in evidence.
REPORT OF CLAIMED INJURY
In his statement of evidence Mr Irwin said that on 22 March 2012 he experienced a sharp muscular pain deep in his shoulder and a clicking sensation while operating the gates and curtains on his trailer. He said he had his elbow raised to shoulder height and felt strong pain in the shoulder but continued to work until the end of that day. He said that on the following day, his shoulder was very sore.
On the morning of 23 March 2012, he said he reported his sore shoulder to the AM Fleet Controller (Mr Flavio Macaveu). However, he did not complete an incident report or make a claim for compensation at that time. He was uncertain whether the pain was due to the work he had conducted on the previous day.
There was no dispute about Mr Irwin having told Mr Macaveu about his sore shoulder on 23 March 2012. In a letter dated 30 May 2012 from Ms Gayle Stewart, National Injury Manager for K & S Freighters, to CGU Self Insurance Services, Ms Stewart said:
John’s supervisor Flaviu [sic] Macaveu recall’s John mentioning his sore shoulder and there was a brief discussion suggesting John had slept on his shoulder the wrong way. Flaviu is aware John sought physio treatment on a private basis during March & April 2012 although John has not provided that information on the claim form. I believe that it was the Physio that has suggested the injury may be work related as John’s jobs [sic] does involve some overhead work.
He then went to see a physiotherapist, Mr Hann Hor, who provided him with treatment for about eight weeks before he lodged a claim for compensation.
Mr Irwin lodged an incident report on 11 May 2012. In his witness statement Mr Comito said he recalled Mr Irwin approaching him in May 2012 advising he had been undergoing treatment due to having a sore shoulder. He said when Mr Irwin was asked if he had reported the issue and completed an incident report, Mr Irwin told him he was unsure at that time that the claimed sore shoulder was a result of a work incident as he believed he might have also slept in the wrong position.
The incident report form lodged on the 11 May 2012 states:
Driver was in a casual position at the time and did not complete an incident report as he could not establish the pain was work-related. At the time driver thought he might of [sic] sleept [sic] in the wrong position. Driver attended physio at his own accord over the past 7 weeks. Today Friday 11/05/2012 driver advised the physio practitioner has advised the injury could be work related due to working above shoulder height.
When this statement was put to Mr Irwin in cross-examination, he said the form had been changed. He said Mr Comito changed it despite the fact that he had signed it. He said he was not present when the claim form was typed up but he was called in to sign it and he told Mr Macaveu it was wrong. Mr Irwin claimed Mr Macaveu said: we will fix it. Mr Irwin said that despite this, the claim form was not fixed. According to Mr Irwin, it was Mr Macaveu who suggested that he may have slept awkwardly on his side causing the pain which he experienced on the following day. There was in evidence some support for Mr Irwin’s claim.
The clinical notes made by Mr Hor, the physiotherapist, refer to Mr Irwin attending the Sandringham Sports Medicine premises on 27 March 2012 for treatment. Although the note made on that day contains a controversial statement which I will deal with presently, it also states: Drives a truck – pulling curtains over the trailer and seems to have tweaked the shoulder. Pain +++ Thursday last week. Given that statement, the incident as described by Mr Macaveu on 11 May 2012 does appear to be incorrect. In my opinion, it supports Mr Irwin’s statement that the suggestion that he may have slept awkwardly was more likely to have been made by Mr Macaveu than himself. That is because five days after the event, he made the statement regarding pulling curtains over the trailer. I accept Mr Irwin had formed the view shortly after he had pain in the shoulder on the day following when he claimed the incident occurred that it was a consequence of his work.
The controversial statement made in Mr Hor’s clinical notes is that he recorded Mr Irwin telling him: Using an axe over 2 weekends ago, shoulder flared up. In his witness statement Mr Irwin observed that the notes were written for a session with Mr Hor on 27 March 2012 and they were repeated word for word again in the notes for 30 March 2012. It appears that they were simply cut from the previous notes and pasted into the subsequent note. He said the statement was incorrect. He did not use an axe one or two weeks prior to 22 March 2012. He was unable to say how Mr Hor completed his notes although he was aware that he made his notes on a lap-top computer which would have enabled him to make those entries at any time after the consultation.
According to Mr Irwin, he and his wife went camping over the Easter weekend, 6 to 9 April 2012. He used a small axe (tomahawk) to cut some kindling for the campfire. While doing so, he felt an increase in pain in his right shoulder. He said he had been experiencing continual pain in the shoulder since April 2012. He also said that the campsite was in King Valley on a private property and that he used the winch on his new 4WD vehicle to pull a fallen branch from the riverbed of the King River. He said the date of acquiring the new 4WD vehicle from Brighton Nissan was 31 March 2012.
Having become aware of Mr Hor’s note regarding using an axe causing the shoulder to flare up some two weeks prior to his claimed injury, K & S Freighters arranged for Professor Frederick Ehrlich, an orthopaedic surgeon, to provide a supplementary report which he did on 13 September 2012. Professor Ehrlich said that he specifically and repeatedly questioned Mr Irwin at the time of his examination about previous shoulder problems and he insisted that he never had any problems with the shoulder until the specific activity in relation to pulling the curtains on his truck. Professor Ehrlich then said:
If in fact he had shoulder pain from his employment before use of the axe, then the axe activity could be regarded as merely a temporary aggravation. On the other hand, if his pain started with using the axe, then his subsequent work-related shoulder pain would be regarded as an aggravation of the axe wielding event.
Clearly, that is dependent on an honest account of the events in order to give reliable opinions.
Clarification is required about Mr Irwin’s non-work related activities, particularly his use of an axe in relation to the onset of the shoulder pains.
Despite Professor Ehrlich’s expression of caution and the need to further investigate the axe incident, it appears that K & S Freighters, or at least the insurer, did nothing about having Mr Hor provide a clarifying statement or to have him examined at the hearing of this matter. As the evidence about this incident presently stands, I am not able to make a finding, on the balance of probabilities, either way regarding whether the axe incident occurred prior to Mr Irwin’s claimed injury. In any event, as Professor Ehrlich said, that event was either a temporary aggravation of an existing condition or his subsequent work resulted in an aggravation of an existing shoulder condition caused by the axe incident.
Mr A Berger of counsel, who appeared on behalf of K & S Freighters, drew my attention to what Mr Irwin said about the event which caused his injury on his claim for workers’ compensation. The question on the claim form asked what action, exposure or event happened to cause the injury or illness. Mr Irwin’s response was:
Opening and closing of curtains and gates on trailer. The gate/curtain jammed pulling my shoulder. Hard to pin point as didn’t feel the pain to the following morning.
Mr Berger referred to Mr Hor’s clinical notes where he stated Mr Hor recorded Mr Irwin experiencing pain after pulling the curtains over the trailer. He referred to Mr Irwin experiencing pain Thursday last week, which was in fact 22 March 2012. Dr T Herring, Mr Irwin’s general practitioner, in a clinical note made on 25 May 2012 said: The next day his R shoulder started hurting severely 10/10. Mr M A Khan, an orthopaedic surgeon, who provided a report dated 9 October 2013, in describing the injuries Mr Irwin told him he suffered on 22 March 2012 noted: He did not feel the pain at the time but realised it the next morning. Professor Ehrlich, who examined Mr Irwin on 21 August 2012 reported: He explained that the curtains on his vehicle kept jamming and in the process of trying to drag them along, he would often experience some pain in his right shoulder, but he managed this quite well, until a particular day in late March this year when there was particularly strenuous movement following which he had particularly bad pain in his shoulder.
According to Mr Berger, the variations in the history given to a number of persons to which I have referred above regarding the onset of pain should cause me to find that Mr Irwin’s evidence could not be relied upon. With respect to Mr Berger, I disagree.
While the descriptions regarding the onset of pain appear to vary, there are a number of possible explanations for this. The most obvious of these is that Mr Irwin did something on 22 March 2012 to his right shoulder which caused him to have the problems he now experiences. In fact the pain he experienced was sufficient to cause him to report the matter to the Fleet Controller on the following day. Logically, he would not have done so if he did not think that the pain he was feeling on the subsequent day was not related to something he did on the previous day and that the something may have been work-related. The fact that Mr Irwin on some occasions has described experiencing a sharp muscular pain on 22 March 2012 while operating the gates and curtains on his trailer, and on other occasions said that he did not feel the pain until the following day may simply be due to the fact that although he felt some pain in his shoulder on 22 March 2012, it did not develop into significant pain until the following day when he reported it.
For example, Mr Hor on 30 March 2012 described Mr Irwin stating that when pulling curtains over the trailer he seemed to have tweaked his shoulder. That suggests Mr Irwin certainly felt something at the time he was pulling on the curtains or gates of his trailer but did not, at that time, consider it to be serious. Also, Professor Ehrlich in his report of 22 August 2012 described Mr Irwin telling him that in about February or March 2012 his shoulder began to trouble him because of a particular movement which he often had to carry out which was freeing curtains on his trailer which kept on jamming in the process of trying to drag them along. Apparently Mr Irwin told Professor Ehrlich that he would often experience some pain in his right shoulder but managed it quite well until in late March there was a particularly strenuous movement following which he had particularly bad pain in the shoulder.
I should point out that the letter from the Senior Injury Claims Consultant for K & S Freighters in the letter of instructions to Professor Ehrlich described Mr Irwin as stating he could not establish if the pain was work-related. With respect, Mr Irwin had made no attempt to establish whether the pain was work-related either on the day he claimed the injury occurred or on the subsequent day when he reported it to the Fleet Controller. He clearly thought it might be work-related because he reported it to the Fleet Controller, and then simply accepted what the Fleet Controller said to him about having slept in the wrong position.
In a letter of referral to Mr Evans dated 25 May 2012, Dr Herring referred to Mr Irwin having suffered a work injury as a result of holding onto a load up high along a rail on a trailer and then load jammed and then said that the next day his right shoulder started hurting severely. Plainly, the inference to be drawn from this statement is that while Mr Irwin may have suffered some pain on the previous day, it did not become severe until the following day, 23 March 2012.
Mr Khan’s account of the injury claimed by Mr Irwin was that on 22 March 2012 he was at work opening and closing curtains and gates of the trailers. He then described the gate in which the curtain had jammed and that Mr Irwin had to pull hard, doing something to his right shoulder. Mr Khan then said Mr Irwin did not feel the pain at the time but realised it in the morning. Further, Mr Khan reported:
Mr Irwin maintained that when opening and closing curtains on the gates of the trailer he had a pulling feeling in his right shoulder as it had jammed. He felt pain at the time but could not pinpoint it. The next morning it was a stabbing type of pain in the right shoulder.…
He did not have any previous known history of injury to his right shoulder.
Again, that statement is not inconsistent with Mr Irwin’s description that he felt some pain while operating the curtains and gates on his trailer on 22 March 2012. It is simply inconceivable that Mr Irwin knew he did something to his right shoulder if he did not experience pain at that time. Plainly, that is how he knew he did something to his shoulder. Furthermore, according to Mr Khan, Mr Irwin said he was not keen to put in a Work Cover claim then, thinking it would settle down. That statement is entirely consistent with the description given by Mr Irwin regarding the onset of severe pain on the following day.
In my opinion, Mr Khan accurately summarised the events giving rise to Mr Irwin’s injury in his report of 9 October 2013 where he said:
I am lead [sic] to believe the version of Mr. John Irwin’s statement, that the episode of chopping firewood with an axe, as he struck me as a hard-working, honest person who spoke without an affect. However, even if he had had a strain on the shoulder tendons previously, the episode of injury on 22 March 2012, which he reported to the fleet controller on the next day on 23 March 2012, appears to be the main significant aggravating factor and is consistent with him developing the present symptoms.
THE CONFRONTATION SUBMISSION
K & S Freighters referred to an incident which took place on 11 May 2012 at Cokepak between Mr Irwin and another driver. According to Mr Irwin, when he arrived at the loading facility he heard the other driver mention that he should stay out of his affairs as they did not concern him. He questioned the driver regarding what that was about and was told that it had to do with Mr Irwin telling his manager that the driver had left work early on the previous day. According to Mr Irwin, he was asked by the manager to find out when that driver had left work. He was simply responding to the manager’s question. The other driver’s account was that he had been reported by Mr Irwin as having left the Moorabbin site early. He said he told Mr Irwin to mind his own business and that if the supervisor wished to know is whereabouts, he should have called him. The driver said that at no time was it more than a heated discussion between the two drivers and there was no need to further action.
Regardless, K & S Freighters was concerned that this could have escalated into something physical if it were not the efforts of another person stepping in. Although I did not have any evidence of any sanctions imposed on Mr Irwin, a letter from Ms Stewart to CGU dated 30 May 2012 refers to an incident report having been made and some disciplinary action being taken as a result of inappropriate behaviour.
For reasons which remain unclear to me, the fact that Mr Irwin completed the Incident Report Form on the same day was said to be curious. Ms Stewart said in her letter that given those circumstances, it appeared that Mr Irwin had taken his non-work related shoulder condition and submitted it as a work-related injury following his verbal confrontation with a colleague. With respect to Ms Stewart, such a link is totally speculative. There is no basis in the evidence for coming to such a conclusion. I reject it.
THE JONES v DUNKEL INFERENCE
Mr Berger submitted that I should draw an adverse inference in accordance with Jones v Dunkel (1959) 101 CLR 298 because Mr Irwin failed to call his wife as witness in this proceeding. With respect to Mr Berger, while I have no doubt that the so-called rule in Jones v Dunkel applies to the Tribunal (see Kumar and Minister for Immigration and Citizenship (2009) 107 ALD 178), I cannot agree that it should be applied to Mr Irwin in the circumstances of this case.
The so-called rule was more recently restated by Buchanan JA in R v Lao (2002) 5 VR 129 where his Honour said, at 139:
… when a party appears able to prove the true facts and fails to do so, in the absence of explanation, an inference which is open on the facts that is favourable to the other party may be more readily drawn.
The circumstances in which the rule may be invoked are:
(a)where sufficient evidence has been produced by a party to enable a reasonable inference to be drawn from that evidence;
(b)the party against whom the evidence stands is apparently able to rebut that evidence and hence the inference by calling other witnesses or producing documents to refute that evidence;
(c)the party against whom the evidence stands chooses not to lead that evidence despite witnesses or documents apparently being available; and
(d)the party against whom the evidence stands does not provide an explanation for the failure to call those witnesses or to put into evidence documents.
When the above conditions are met, a rational inference may be drawn that the evidence which could have been produced by the party against whom the inference is sought to be drawn would not have helped that party’s case (the adverse inference).
In this case, Mr Berger submitted that an adverse inference should be drawn against Mr Irwin because he failed to adduce evidence from his wife who may have been able to give evidence about when and whether Mr Irwin experienced pain in his right shoulder when using a small axe while on a camping trip with her. Although Mr Berger did not elaborate, I assume that the inference he claimed stood against Mr Irwin’s evidence regarding that incident was that he was being dishonest about its timing given what is set out in the clinical notes of Mr Hor.
The first point to make is that whether the incident occurred at all, or whether it occurred before 22 March 2012 or after that date, would not alter the evidence given regarding the injury Mr Irwin claimed he suffered on 22 March 2012. The second point is that there was no evidence that Mr Irwin’s wife either saw the axe incident or was told about it by Mr Irwin. Finally, there was no evidence about Mrs Irwin’s availability to attend the hearing of this matter.
MEDICAL FINDINGS
The medical reports are largely uncontroversial. An MRI conducted 6 June 2012 recorded the following significant features:
Partial thickness tear of the superior half of the subscapularis tendon involving approximately 50% of tendon thickness. This is associated with mild medial subluxation of the long head of biceps tendon.
Supraspinatus mild tendinopathy without tear.
Mild subacromial bursitis.
No labral abnormality is seen.
Mr Matthew Evans, a Shoulder and Knee Surgeon, after viewing the MRI, said:
The MRI confirms good structural integrity of his rotator cuff and labrum but there is quite a bit of subacromial fluid present. I think that this represents bursitis on a background of rotator cuff tendinitis and I have instilled some cortisone into his subacromial space today. I think that this will help to settle the pain down and enable him to keep using the arm for normal activity.
In a report dated 22 August 2012 Professor Ehrlich said:
Mr Irwin should be considered to have sustained some right shoulder rotator cuff damage.
Symptoms are at a level which enable him to continue doing his normal duties and whilst there are some discomforts on certain movements, his reluctance to consider surgery at this stage is readily understandable.
In answer to questions put to him by CGU’s representative, Professor Ehrlich said:
He has sustained partial right shoulder rotator cuff disruption.
I believe his employment has made a significant contribution to his present problems.
Whilst surgery is an option, it should not be regarded as in any way essential at this stage.
I doubt with physiotherapy would have any significant ongoing benefits.
Mr Khan, an Orthopaedic Surgeon, said the following in his report of 9 October 2013:
A repeat MRI scan of the right shoulder arranged by Mr Matthew Evans dated 28 May 2013 had again revealed supraspinatus mild tendinopathy and no tear, with mild subacromial bursitis. There was mild acromio-clavicular joint degenerative arthritis.
This man continues to have evidence of chronic rotator cuff tendinopathy in his right shoulder, associated with subacromial bursitis, which, in my opinion, is consistent with his injury during the course of employment with K & S Freighters Pty Ltd.…
This condition now has stabilised and he is fit for alternative duties, avoiding repetitive elevation of the right arm above shoulder level, pushing and pulling with the right arm, or lifting heavy weights not more than 10 kg at a time. He should avoid elevating the right shoulder and avoid twisting and turning of his right shoulder.…
On the balance of probabilities, Mr Irwin has sustained an injury during the course of employment under the SRC Act, which includes an aggravation, recurrence or acceleration of a pre-existing condition.…
I consider that your client’s employment has been a significant contributing factor to the condition as diagnosed by me above.…
On the balance of probabilities, Mr Irwin’s employment has been a significant contributing factor to the aggravation and acceleration of a pre-existing condition, as diagnosed above, particularly acromio-clavicular joint degenerative arthritis.…
Presently Mr Irwin continues to suffer from the condition which arose during the course of his employment and has been significantly contributed to by his employment with K & S Freighters.…
Mr Irwin requires reasonable medical treatment in relation to the condition, the details of which had been discussed in the body of the report above, for both the medical and possible surgical treatment for his diagnosed condition.
The medical reports to which I have referred above, particularly that of Mr Khan, set out clearly the injury which Mr Irwin claimed he suffered in the course of his employment. In case there is any outstanding question about whether his injury was caused by using an axe some weeks prior to the date on which he claimed the injury occurred, I would find that Mr Irwin suffered an aggravation of a physical injury and that the aggravation arose out of or in the course of his employment with K & S Freighters. Furthermore, if the cause of the pain and incapacity experienced by Mr Irwin was the result of an aggravation of a pre-existing condition, namely acromioclavicular joint degenerative arthritis, I would find the evidence supports Mr Irwin’s contention that the aggravation was contributed to, to a significant degree, by his employment with K & S Freighters.
CONCLUSIONS
Despite K & S Freighters’ contentions regarding the circumstances surrounding the injury Mr Irwin claimed he suffered on 22 March 2012, I have found, on the balance of probabilities, that his account of those circumstances should be accepted. There is nothing about those circumstances, including his description of the pain he said he felt at the time he claimed the injury occurred, or the reference in Mr Hor’s clinical notes to use of the axe, which would cause me to find otherwise.
In particular, I have placed substantial weight on Mr Khan’s report where he stated that the injury sustained by Mr Irwin as claimed was consistent with the working conditions and employment with K & S Freighters. I have combined the evidence of Mr Irwin with the photographs of a typical trailer with gates and curtains which I had in evidence. I have found that the evidence Mr Irwin gave about the difficulties he experienced in moving the steel gates and the large heavy plastic curtain is clearly supported by those photographs. On any view, it is an unsatisfactory system for restraining the trailer load and, no doubt, the reason why K & S Freighters was in the process of refurbishing those trailers to adopt a different retainment system. Significantly, the photographs disclose that such difficult work had to be conducted with the arms above shoulder height.
I find, on the balance of probabilities, that Mr Irwin suffered an injury to his right shoulder being an injury which arose out of, or in the course of, his employment with K & S Freighters. That injury resulted in an incapacity for work. Alternatively, I find that Mr Irwin suffered aggravation of a physical injury to his right shoulder being an aggravation which arose out of or in the course of his employment with K & S Freighters. Neither the injury nor aggravation was suffered as a result of reasonable administrative action.
If it were the case that Mr Irwin suffered from acromioclavicular joint degenerative arthritis prior to the claimed incident on 22 March 2012, I would find that Mr Irwin suffered aggravation of that ailment and that the aggravation was contributed to, to a significant degree, by his employment with K & S Freighters.
It necessarily follows that I find the undated reconsidered decision made by a Workers Compensation Claims Officer of K & S Freighters was not the correct decision. I set aside that decision and in substitution determine that K & S Freighters is liable to pay compensation in accordance with the SRC Act in respect of Mr Irwin’s claimed injury to the right shoulder. Furthermore, I remit the matter to the Workers Compensation Claims Officer of K & S Freighters for the purpose of calculating the cost of reasonable medical treatment obtained by Mr Irwin pursuant to s. 16 of the SRC Act and the calculation of compensation to which Mr Irwin may be entitled under s. 19.
K & S Freighters must pay Mr Irwin’s costs and disbursements incurred in this proceeding in accordance with s. 67 the SRC Act.
I certify that the preceding 67 (sixty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Egon Fice ......[sgd]..............................................................
Associate
Dated 7 November 2014
Date of hearing 25 August 2014 Counsel for the Applicant Mr M Carey Solicitors for the Applicant Ms J Lewin, Maurice Blackburn Counsel for the Respondent Mr A Berger Solicitors for the Respondent Mr D Clarke, Clarke Legal
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