Kovacs v Connex Trains Melbourne (WorkCover)

[2007] VMC 13

IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE

WORKCOVER DIVISION

W00047231

BETWEEN

KARL KOVACS

Plaintiff

v.

CONNEX TRAINS MELBOURNE PTY LTD

Defendant

MAGISTRATE:   B.R. Wright


WHERE HEARD:   Melbourne


DATE OF DECISION:   18 December 2007

MEDIUM NEUTRAL CITATION:                 [2007] VMC013

APPEARANCES

Mr. S. Carson (instructed by Maurice Blackburn) for the Plaintiff
Mr. M. Richards (instructed by Herbert Geer and Rundle) for the Defendant

REASONS FOR DECISION

Accident compensation – Termination notice – “Every reasonable effort to return to work in suitable employment” – Later separate application for reinstatement of weekly payments – Accident Compensation Act s. 93ca(3),(4)

HIS HONOUR:

The plaintiff's weekly payments of compensation were terminated by Notice dated 5 May 2005 on the basis that he had not made every reasonable effort to return to work in suitable employment with his employer, or alternatively every effort to return to work in suitable employment with another employer.

The grounds for that decision were based on his resignation from his employment on 13 April 2005.  At that stage he was working in his pre-injury duties, though based at a different depot. 

The other issue before the court concerns a further application for reinstatement of weekly payments by way of letter dated 13 July 2006.  For reasons that I will go into later, such further application is superfluous whatever happens to the application to set aside the Notice of Termination.

The plaintiff is 47 years old and was employed by Connex as an authorised officer, or ticket inspector, on the rail system since March 2002.  He was the only lay witness called in this case.

In early 2003 he told a workmate Mark Lawrence that he was homosexual. After that date he was subject to various ‘jibes’ and ‘jokes’ from Mr Lawrence, and later from others in his workplace at North Melbourne, about his homosexuality.  He said that after that time the jibes and jokes became more serious, confronting and also began to get him down.  A supervisor took part in this as well.

Homosexual pornographic material was put into his locker and correspondence box.  His ID card was defaced with another face inserted onto it.  On his return from a hospital visit one day (noting that he has a long history of cerebral tumours), he was asked whether it was for AIDS by Mark Lawrence in front of his supervisor Mr Verdie. 

He was told to put up with the comments or risk losing his job.  He was originally from Sydney and when he went there for a visit he was asked whether it was for the Gay Mardi Gras by Mark Lawrence who asked questions of the plaintiff's sex life using rather derogatory language.

The plaintiff's concern was compounded by the fact that generally ticket inspectors work in teams and relied on each other for backup and assistance, e.g. in dealing with difficult or violent fare evaders.  Another humiliating comment was made to him at the Royal Melbourne Show in September 2004. 

Eventually he complained to his superiors who dismissed his concerns even though they had witnessed some of the comments directed to the plaintiff.  Eventually his acting team leader Mr Brevitt agreed to call a meeting between Mr Lawrence and the plaintiff on 18 December 2004.

The plaintiff said that Mr Lawrence was aggressive and strongly objected to being called to the meeting.  Mr Lawrence's behaviour became more aggressive and abusive during the meeting.  Eventually Mr Lawrence got up and physically assaulted the plaintiff by pushing him against the corner of a desk which struck the plaintiff's low back, causing him to fall backwards. 

He was pushed with sufficient force to put his elbow through a plaster wall.  After he fell to the floor on some paint tins, Mr Lawrence then began punching him.  The plaintiff said that he was accused of having stood up and pointed a finger at Mr Lawrence prior to being physically assaulted by him.

Of course I have only heard from the plaintiff about the incident.  Whether or not the plaintiff did provoke or take a greater part in the incident leading to the assault is not relevant to my determination.  His workers compensation claim form resulting from the assault was very specific in its allegations of violent assault upon him.       The claim was accepted by the VWA and/or the employer and benefits were paid to him.

After the incident he tried to complain and was discouraged from calling the police by his superiors.  Basically he and Mr Lawrence were forced to apologize to each other or, he was told, "someone was going to lose their job."

As it was then past the end of his shift he went home.  He felt progressively painful all over, especially to the back part of his body and in particular to the neck, shoulder, low back and left leg.  He particularly noticed a pulling type pain sensation to his left leg going up to his back while driving or stretching that leg. 

He returned to work the next day but worked in the office.  Eventually he ceased work on 23 December 2004 and completed the claim form at about that time.  Although he was probably due to be off work for Christmas anyway, he saw his GP who put him off work until 3 January 2005 when he returned to work.  He was also referred for physiotherapy.

He later got a clearance certificate to return to his normal duties on 8 February 2005.  He said it was made clear to him that there was no such thing as light duties. He continued to get back, neck and left leg pain with the left leg continuing to be troublesome, especially on stretching. 

His job required him to stand at most times, either on moving trains or at ticket barriers.  Obviously he had to be physically involved in restraining fare evaders if necessary and be buffeted in crowds.  He continued to work in teams with the same people at North Melbourne who had been involved in the assault, jibes and jokes before.  He also needed to rely on them for assistance.  He felt that they would not have assisted him and were standoffish in their treatment of him.  As a result he was finding it worse and more difficult physically and emotionally. 

He tried continually to get some form of investigation and satisfaction, to have the question of the assault properly dealt with by his employer without success.  His attempts were ignored.  As he said, it was made clear to him overall that any complaints would result in loss of promotion or transfer.

Also, there was no question of light duties.  He said that he was never approached by any Occupation Health and Safety people or rehabilitation people from the employer.  He continued to attend his GP for his physical complaints, but does not appear to have complained about psychological symptoms or any mistreatment by his employer or fellow employees. 

He said that his psychological symptoms were made worse when Mr Lawrence was transferred to a promoted position.  This heightened his sense of unfairness.  He continued to have treatment by a physiotherapist who noted that he appeared stressed by his work situation, especially as to how he had sustained the injuries.  He had some counselling at the Centre Against Sexual Assault (“CASA”) commencing in January 2005.  He attended his GP on 28 March 2005 and got a total incapacity medical certificate for two days for his back.  He was referred for a CT scan and X-rays which he had on 30 March 2005. 

This showed a left disc herniation which was consistent with his leg symptoms later diagnosed as sciatica.  On 6 April 2005 his GP gave him a modified certificate for light duties referring to the disc herniation.  A similar certificate was given on 12 April 2005 on the basis of seated duties with hourly breaks which obviously did not correlate with his job as a roaming or fixed ticket inspector.  The plaintiff was unable to remember these certificates but said that there was no point in handing them to his employer as it had been made clear to him that there was no such thing as light duties in his job.  

As stated, his evidence was the only lay evidence called.  He tendered his resignation from the defendant on 13 April 2005, referring to a mixture of physical and psychological issues including discrimination and victimisation.  The continuation of both physical and psychological issues made it "difficult to maintain normal work/life balance with my current duties”.  That resignation was accepted with immediate effect despite his offer of two weeks notice.

Over the last six or so weeks he had been transferred in his job to the Malvern Depot which was closer to his home at Seaford.  He said that the less amount of driving was helpful but he was still required to perform the same job in the same way without any allowance for his physical or psychological issues. 

Although he said there was no victimisation or harassment at Malvern, or at least by the staff there, he was still required to have dealings with the North Melbourne staff on joint operations.  He came across Mr Mark Lawrence once.  He also had once incident where he perceived that he was being left to deal with an offender by himself although a North Melbourne staff member had carried out the initial interception.

He was fearful that he would not be helped by them in dealing with aggressive or violent offenders.  He also still had not got any satisfactory investigation or handling of the incident in which he was assaulted.  It was for this combination of physical and psychological reasons that he resigned.  He was just not coping at his job. 

After his resignation he went to Sydney for a week to see his mother and then started a job as a customer service officer at Lockwood.  This was a clerical administrative job which complied with the restrictions in his medical certificates.  He had obtained a further similar medical certificate on 27 April 2005.  He said that he continued treatment with the CASA counsellor, Mr Clarke.  He had difficulty in doing any lifting of boxes at Lockwood though he had to remain at his desk most of the time.

Physically he was having problems sitting, standing and driving to work.  His probationary period of employment was extended as he was having time off work because of his back.  Eventually he left that job by mutual agreement as he thought it was unfair to his fellow staff that he was unable to perform his job properly. 

As stated, his entitlement to weekly payments had been terminated shortly after he handed in his resignation from the defendant.  The plaintiff's left sided sciatica continued and on 19 September 2005 he was referred to a neurosurgeon Mr Paul D’Urso.

He arranged further tests by way of an MRI.  He then arranged for the plaintiff to have a CT-guided marcain injection to the left S1 nerve route on 11 January 2006.  Later Mr D’Urso performed a discectomy/rhizolisis with an artificial implant on 17 May 2006.

Unfortunately, the plaintiff has had recurrent problems with a cerebral tumour over many years. This has been surgically and radiologically treated on a number of occasions in the past.  The nature of the tumour is such that the plaintiff has been able to return to work after limited periods of treatment in the past.

He had further surgery to the tumour in about June 2007 and was "out of action", as he put it, for five months.

A number of issues were raised by both counsel at the outset.  Counsel for the plaintiff said that he was only seeking weekly payments for 104 weeks (see s.43(2)) less weekly payments to date being about two weeks at Christmas 2004 and for about four weeks from his resignation from 13 April 2005 to the effective date of the termination notice on 10 May 2005. Neither party was able to assist whether he had received any and if so what payments in those periods.

Secondly, counsel for the defendant pointed out that no claim form was ever lodged for any harassment or victimisation per se, apart from the specific incident on 18 December 2004.  As a consequence I ruled that compensation could therefore not be awarded beyond the injury set out in the claim form dated 21 December 2004 (see such cases as GMH v. Mete (1986) 1 Vic ACR 41).

However in considering whether the plaintiff had made reasonable attempts to return to work in suitable employment, I ruled that harassment and victimisation issues could be taken into account. 

Those issues should only be taken into account in considering such questions as reasonableness in relation to his resignation which was really a question of fact.  I see no reason why the whole employment situation, including factors outside the actual work related injury and the strict view of the job offer, cannot be taken into account in this regard. 

Thirdly, in considering the question of termination of payments pursuant to s.93CA(3) and (4), the defendant carries the onus of proof which is essentially one of fact (see Cox v. TCC (County Court, Judge GD Lewis, del. 16 November 2000). 

Fourthly, the only cited ground in the reasons for the Notice of Termination was his submission of the resignation for the defendant's employment.

Finally, the request for reinstatement of weekly payments is superfluous in this case.  If weekly payments were properly termination to pursuant to s.93CA(3)or(4) then the plaintiff is unable to seek such reinstatement (see Folino v. MMI, County Court, Judge Strong, del. 21 August 1997).  Of course, if the notice of termination is set aside the application for reinstatement is superfluous anyway. 

Turning to the evidence in this case, I am satisfied that the plaintiff did in fact make every reasonable effort to return to work in suitable employment at his place of employment.  Also, he made every effort to return to work in suitable employment at a place of employment other than that of his employer.  His pre-injury employment involved constant standing on moving trains and at ticket barriers.  Apart from one day after the assault upon him he was not given any suitable employment. 

I accept his evidence that the employer did not encourage its employees to seek light duties.  The evidence from the plaintiff and his medical practitioners emphasised that he had left sided S1 sciatica at all relevant times.  His GP certified that he should be able to sit and take hourly breaks.  This was not accommodated in his employment which was the same as his pre-injury employment.  Those two certificates were supplied by his GP just prior to his resignation.  As stated, I have only heard from the plaintiff as to these issues.  He was transferred in his employment to a job with the same duties as his pre-injury employment. 

Although he was not subject to further harassment or victimisation by the staff there at Malvern, he still came into contact with his former colleagues from the North Melbourne Depot from time to time.

Also, the employment issues surrounding the assault upon him were not dealt with by the employer in his mind.  I accept the plaintiff's evidence as set out in his resignation that "it was difficult to maintain a normal work/life balance with these current duties" with the defendant.

It is not really necessary for me to consider the psychological issues of victimisation and harassment in this case. On the physical grounds above, being his back injury, I accept that he was unable to cope further.  In particular, he had left S1 sciatica confirmed by the MRI on 30 March 2005 and seen in operative findings at the time of his discectomy.

The dense epidural fibrosis and small disc prolapse found was certainly consistent with his longstanding complaints in relation to his left leg which commenced shortly after the incident at work on 18 December 2004.  Apart from a few odd days doing follow up paperwork, his job required him to stand on moving trains or fixed positions constantly. Also he had to physically restrain or chase aggressive or violent fare evaders.

It is hard to see how that pre-injury duties could be regarded as suitable employment, especially in view of the progress towards spinal surgery in his case.  Whether or not he actively sought lighter duties with the defendant is not to the point.  This was the job he was doing when he was injured.

Even if I am wrong in that regard, he actually sought suitable employment for his injuries after leaving the defendant's employment and commenced a sedentary customer service operator job with Lockwood after about a week. 

He stayed in that job for four months when it became obvious to him and his employer that he could not cope with even that light employment.  Shortly after ceasing that employment he was referred to Mr D’Urso who then undertook an MRI on the plaintiff and later arranged for the plaintiff to have a spinal injection and then discectomy/implant into the spine.

Quite apart from harassment and victimisation elements to his psychiatric condition, even Dr Shan, a psychiatrist who examined the plaintiff for the defendant, noted the condition of adjustment disorder had some relationship as a result of the consequence of, or secondary to, the physical injury to his low back. 

Thus, it is obvious that his physical and consequential psychiatric injuries alone justified his resignation on my findings.  He made every reasonable effort to return to a considerable employment with the defendant and the other employer Lockwood.  Certainly the ongoing failure by Connex to investigate and deal with the assault issue played some part, as well as the fact that he would still come into contact with former fellow employees at North Melbourne, even though he had been transferred to the Malvern Depot.

As I have set aside the Notice of Termination there is no need for me to go into any further issues relating to the claim for reinstatement by way of letter dated 13 July 2006. 

However I do need to consider the question of length, and degree, of work related incapacity.  Certainly, he had a ‘current work capacity’ upon ceasing work with the defendant and while he was at Lockwood.  Thereafter he had ‘no current work capacity’ after ceasing that lighter employment at Lockwood in the period up to, and for some time after, his spinal surgery on 17 May 2006.

The relevant 104 week period would appear to end at about early to mid April 2007 on the basis that he was either entitled to, and/or received, weekly payments for the two weeks at Christmas 2004 and for the period between resigning and the actual date of termination of weekly payments as set out in the Notice. 

His treating surgeon last saw him in February 2007.  Initially he had thought that it would take until about May 2007 until his condition stabilised.  In his report in May 2007 Mr D’Urso thought that the plaintiff was likely to progress to capacity in a part time light duties fashion, though he thought training and vocational experience would be appropriate.

The plaintiff's general practitioner and Dr Piperoglou thought he was still unable to return to work at all in their reports in July 2007.  As opposed to that Mr Shannon and Dr Shan for the defendant thought that he had at least a light work capacity in their reports in March 2007. 

As I observed the plaintiff giving evidence I found it difficult to see how he could work even in light duties at present.  He still uses a walking cane and has obvious difficulty in walking and sitting.

I prefer the evidence of his doctors overall that as at about April 2007 he still had ‘no current work capacity’ within the meaning of the Act.

Thus, it is not necessary for me to consider the effects of his cerebral tumour surgery in June to July 2007 in accordance with the principles set out in Ward v. Corrimal-Balgownie Collieries (1938) 61 CLR 120, especially at pp.129-131.

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