Kumar and Linfox Australia Pty Ltd (Compensation)

Kumar and Linfox Australia Pty Ltd (Compensation) [2015] AATA 850 (6 November 2015)

Division

GENERAL DIVISION

File Numbers

2014/1429, 2014/1430, 2014/1431

Re

Adip Kumar

APPLICANT

And

Linfox Australia Pty Ltd

RESPONDENT

DECISION

Tribunal
Ms G Ettinger, Senior Member

Date 6 November 2015

Place Sydney
The Tribunal’s decisions are as follows:

·           Matter 2014/1430 – The Tribunal affirms the decision under review.

·           Matter 2014/1429 – The Tribunal sets aside the decision of Linfox Australia Pty Ltd and in substitution decides that liability pursuant to section 14 of the Safety Rehabilitation and Compensation Act 1988 is accepted for Mr Kumar’s right shoulder condition, being a post traumatic biceps tenosynovitis, right shoulder partial thickness supraspinatus tendon tear, subscapularis tendinopathy.

·           Matter 2014/1431 – The Tribunal sets aside the decision of Linfox Australia Pty Ltd and in substitution decides that liability pursuant to section 14 of the Safety Rehabilitation and Compensation Act 1988 is accepted for Mr Kumar’s Depression and Anxiety.

· Pursuant to section 67 of the Safety, Rehabilitation and Compensation Act 1988, the Tribunal orders the Respondent pay the costs incurred by the Applicant in relation to 2014/1429 and 2014/1431.

..............................[sgd]..........................................
Ms G Ettinger, Senior Member
CATCHWORDS
Compensation – Applicant has osteoarthritis of the right shoulder - injury/aggravation of his degenerative condition – claim also for Depression and Anxiety - liability not accepted by the Respondent under the SRC Act for all three applications – Respondent submits there are issues of credit and inconsistencies in the Applicant’s evidence - whether significant material contribution of the workplace – decision under review with regard to the assault of 8 November 2013 set aside and substituted – liability accepted – liability also accepted for Depression and Anxiety.
LEGISLATION
Safety Rehabilitation and Compensation Act 1988 ss 5, 5A, 7(7), 14, 53
CASES
Comcare v Sahu Kahn [2007] FCA 15

Hart v Comcare [2005] FCAFC 16

Mellor v Australia Post [2009] FCA 504
REASONS FOR DECISION
Ms G Ettinger, Senior Member
6 November 2015
SUMMARY

Mr Adip Kumar, now 65 years old, is of Indian origin, and was born in Fiji. He came to Australia in 1980. He is a qualified diesel mechanic, and worked for a number of employers before joining Linfox Australia Pty Ltd (Linfox), the Respondent as a contractor, from 1992 to 1998. He recommenced work with Linfox as a diesel mechanic, once again on contract in 2008. Following a satisfactory pre-employment medical examination in 2010, Mr Kumar joined Linfox as a permanent full-time employee, where he remained until the events of 8 November 2013.
Mr Kumar and a co-worker, Mr Danny Chandra, with whom he shared a company Breakdown Truck while working on separate shifts, had some differences which resulted in a number of complaints to management by Mr Kumar. Mr Kumar claims that Mr Chandra assaulted him on several occasions, and intimidated him.
On 8 November 2013, Mr Kumar had an altercation with Mr Chandra about lights and broken parts collected by Mr Chandra which Mr Kumar had thrown away, and the untidy state of the truck. Mr Kumar claimed that Mr Chandra again assaulted him, by pushing him, and swearing at him in Hindi. Mr Kumar claimed that as a result of that assault, he suffered further right shoulder injury, Depression and Anxiety, and is incapacitated for work. Both Mr Kumar and Mr Chandra were stood down on 8 November 2013, and Mr Chandra was dismissed on 13 November 2013. Mr Kumar has not returned to Linfox.
Mr L Grey of counsel represented Mr Kumar in the difficult four day hearing. Ms E Ford of counsel represented Linfox. Ms Ford submitted that Mr Kumar should not be believed because he had given various versions of the assault and his injury to the different doctors who examined him. I did not accept that submission as will be seen further on in these Reasons for Decision.
Ultimately I was satisfied that Mr Kumar, who suffers from osteoarthritis, a degenerative condition of his right shoulder, suffered an aggravation to that condition in the assault by Mr Chandra on 8 November 2013. I am satisfied from Mr Kumar and the medical evidence, that the pain and the aggravation are ongoing, and that he is incapacitated for work. I am satisfied that the workplace made a significant contribution to the aggravation, and that it is an injury in the terms of the legislation. Accordingly liability must be accepted pursuant to section 14 of the Safety Rehabilitation and Compensation Act 1988 (the SRC Act).
I am not satisfied from the evidence that liability should be accepted for right rotator cuff injury (right shoulder), and right upper limb strain, as discussed in the paragraphs below.
I am satisfied that the psychiatric conditions, Depression and Anxiety, which Mr Kumar suffers result from the physical injury, and that liability for those conditions should also be accepted.
I have also considered argument regarding the application of sections 7(7) and 53 of the SRC Act, and the reasonable administrative action exclusion in section 5A(1).
ISSUES TO BE DECIDED
Mr Kumar seeks review of three decisions made by the Respondent dated 28 January 2014, 14 February 2014 and 14 February 2014. In each decision, the Respondent denied liability for the Applicant’s claim for compensation under section 14 of the SRC Act. The three applications and relevant issues for the Tribunal to decide are set out below.
Matter 2014/1430 - Right rotator cuff injury and right upper limb strain - November 2012
·Whether the Applicant's shoulder injury, being right rotator cuff injury and right upper limb strain he claims was sustained in October/November 2012 was contributed to a significant degree, by the Applicant's employment with the Respondent;
·Whether the Applicant continues to suffer from the effects of the injuries referred to above, and whether liability should be accepted by the Respondent and compensation paid;
·A consideration of the Respondent’s submission that section 53 of the SRC Act applies because Mr Kumar did not give notice in writing of his October/November 2012 injury to the Respondent as soon as practicable after he became aware of the injury.
Matter 2014/1429 - post traumatic biceps tenosynovitis - right shoulder partial thickness supraspinatus tendon tear – 8 November 2013
·Whether the Applicant's right shoulder injury being post traumatic biceps tensynvitis (sic) rt shoulder partial thickness supraspinatus tendon tear which the Applicant claims was sustained on 8 November 2013 was contributed to a significant degree by the Applicant's employment with the Respondent;
·Whether the Applicant continues to suffer from the effects of the injuries referred to above, and whether liability should be accepted by the Respondent, and compensation paid;
·A consideration of the Respondent’s submission that section 7(7) of the SRC Act operates to exclude an acceptance of liability for the Applicant's claimed right shoulder condition.
Matter 2014/1431 - Psychiatric Condition - Depression and Anxiety – post 8 November 2013
·Whether the Applicant suffers from a psychiatric condition which he claims is Depression and Anxiety; if so,
·Whether that condition developed secondary to any compensable condition under the SRC Act, such that liability can be extended to include the Applicant's claimed psychiatric condition;
·Whether the Applicant's claimed psychiatric injury, being Depression and Anxiety was contributed to a significant degree by the Applicant's employment with the Respondent;
·Whether the Applicant continues to suffer from the effects of the injuries referred to above, and whether liability should be accepted by the Respondent and compensation paid;
·A consideration of the Respondent’s submission that the Applicant is excluded from claiming for the psychiatric injury due to the operation of section 5A(1) of the SRC Act.
RELEVANT LEGISLATION
The relevant legislation in these matters is the SRC Act, in particular sections 5, 5A, and 14.
Section 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.
(2) For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a) a reasonable appraisal of the employee’s performance;
(b) a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c) a reasonable suspension action in respect of the employee’s employment;
(d) a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e) anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f) anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
Section 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.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
Significant degree means a degree that is substantially more than material: section 5B(3). In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment matters that may be taken into account include: the duration of the employment; the nature of, and particular tasks involved in, the employment; any predisposition of the employee to the ailment or aggravation; any activities of the employee not related to the employment; and any other matters affecting the employee's health: section 5B(2).
Section 7(7);
(7) A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.
Section 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.
Section 53;
(1) This Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority:
(a) as soon as practicable after the employee becomes aware of the injury;
…
BACKGROUND
As stated above, Mr Kumar was employed as a diesel mechanic contractor by Linfox from 1992 – 1998. In 2008, he recommenced work with Linfox, once again on contract. Following a satisfactory pre-employment medical examination in 2010, he joined Linfox as a permanent full-time employee on 4 November 2010. He remained working there until the altercation with a co-worker, Mr Chandra, and assault upon him by Mr Chandra on 8 November 2013.
Mr Kumar told me that the work he carried out after becoming a permanent employee was much the same as he had done previously, being heavy work. He said that he was repairing semi-trailers and roller doors, and that he was lying under trucks and reaching vertically up to carry out the repairs.
The pre-employment medical examination on 3 September 2010 did not disclose any shoulder or back injuries. Mr Kumar told me that it was a comprehensive test in which he was required relevantly to move both arms up and down, sit down, stand up, and also undertake a hearing test.
Much was made by the Respondent of a motor vehicle accident in which Mr Kumar suffered an injury on 7 August 2000. The description given in Exhibit R2, the Injury Management Plan dated 16 August 2000 was that:
Injury occurred when he was driving home from work and stopped his van to check a door, and the road gave way and the van tipped into a ditch. He tried to hold the van up to stop it from falling on his him, and strained his shoulders.
A medical certificate of 28 September 2000 declaring Mr Kumar unfit for a month, and offering a review on 12 October 2000, indicated that he was suffering soft tissue injury to his head and shoulders.
Mr Kumar’s evidence was that he was off work for a few days, and returned on light duties. I am mindful of the notification dated 24 November 2000 that the occupational rehabilitation file would be closed, and that Mr Kumar was performing his pre-injury duties with no reported difficulty. Mr Grey submitted that there was no impact on Mr Kumar’s work as a result of the accident of 7 August 2000 following the closure of the rehabilitation file, and Mr Kumar’s return to full duties.
The evidence regarding the poor relationship between Mr Kumar and Mr Chandra was generally undisputed. Messrs Roy Jones, NSW Workshop Manager at the time of the incident on 8 November 2013, and presently, NSW State Service Manager, and Ian Uren, then a Leading Hand at Linfox, and presently a Workshop Supervisor, who gave evidence before the Tribunal, agreed that the two men did not get on. Nevertheless, I noted that the contact between Mr Kumar and Mr Chandra had to be virtually daily as they shared a truck which Mr Chandra used during the day shift, and Mr Kumar on the afternoon/evening shift. Mr Kumar said that Mr Chandra did not return the truck to him in a tidy state, that Mr Chandra collected broken parts, which Mr Kumar thought were junk. He said that there was also often oil in the truck which he had to clean up before he could use it.
The tension between the two men was prolonged, and the evidence of Mr Kumar which I accept, is that when he reported problems, including Mr Chandra assaulting him on several occasions, nothing was done about it until 8 November 2013.
A brief summary of Mr Kumar’s evidence about four incidents at work in which he says he was injured, follows. The incidents are discussed in detail further on in these Reasons for Decision.
NOVEMBER 2012 – Matter 2014/1430 - Right rotator cuff injury and right upper limb strain
Mr Kumar says that in November 2012 he suffered a right upper limb strain at work, a right rotator cuff injury, which he says resulted from lifting heavy roller doors. I am satisfied from the clinical note of Dr Mehrabi, whom Mr Kumar consulted on 31 October 2012, that the date of injury was 30 October 2012.
Mr Kumar said that following the November 2012 (30 October 2012) incident, he reduced his working days from six, to five days a week, but still worked 55 – 65 hours a week (which included overtime). I am satisfied with the Respondent’s calculation which indicates that the average time Mr Kumar then worked was 58 hours a week.
Mr Kumar did not make a workers’ compensation claim in relation to this injury until 3 December 2013. Liability was denied on 14 February 2014 (T28). The Respondent submits that section 53 applies as Mr Kumar did not report the injury as soon as reasonably practicable, as required by the Act. In addition, the Respondent says that the injury did not arise out of Mr Kumar’s employment.
1 NOVEMBER 2012
Mr Kumar told me that on 1 November 2012, after having words with Mr Chandra about the fact Mr Chandra had a collection of broken lights in the truck, which Mr Kumar considered to be junk, Mr Chandra kicked him in the left shin, and punched him in the face. Mr Kumar says that Mr Allen, the Leading Hand, witnessed the event, and led Mr Chandra away. Mr Kumar says that Mr Allen spoke to the Workshop Manager, but neither of them spoke to him about the incident. He said that no official report of the incident was prepared, and he did not attend upon any medical practitioner.
Mr Kumar was extensively cross-examined by Ms Ford about the incident on 1 November 2012. I note the Respondent’s submissions that Linfox does not accept that the incident, as described by Mr Kumar, occurred at all.
LATE OCTOBER 2013
Mr Kumar said that during 2013, the problems with Mr Chandra continued, and he feared what could occur, so he tried not to have much contact with him. However, he said that one morning in late October 2013, he had finished his night shift, and returned to the base. He said that he was standing near a table in the lunch room when Mr Chandra walked in, and expressed anger about Mr Kumar throwing away the lights he had collected. He said that Mr Chandra hit him hard on his front, on the right shoulder at the end of the collar bone, with his fist. Mr Kumar said that he walked away.
8 NOVEMBER 2013 - Matter 2014/1429 - right shoulder condition, being a post traumatic biceps tenosynovitis, right shoulder partial thickness supraspinatus tendon tear, subscapularis tendinopathy.
The final incident which Mr Kumar claims has caused his incapacity and inability to return to work, took place on 8 November 2013. The basis of the argument, as previously, related to the items Mr Chandra had collected in the truck, and the state of the truck. Mr Kumar said that during the altercation Mr Chandra pushed him so hard that he fell against the open steel door of the Breakdown Truck. He said that his shoulder hit the door frame … a place between the spine and the shoulder, 5 - 6 centimetres down. He said the impact left a big mark on his overalls, (Exhibit A8). Mr Kumar said that the impact resulted in pain in his back and right shoulder. He said that although he fell back against the steel door of the truck, he did not fall to the ground during the incident. He said that he righted himself by bracing with his right arm and hand. Mr Kumar said that when he stood up straight again, Mr Chandra was swearing at him in Hindi. He said that Mr Chandra often made threatening gestures, and swore at him in Hindi.
The incident of Friday 8 November 2013 was the subject of much evidence, discussion, and submissions at the Tribunal. Exhibits R4 and R5, drawings of the truck door, Exhibit A7, photographs of the truck, and Exhibit A8, the overalls Mr Kumar was wearing on 8 November 2013 are relevant. I also heard evidence from various doctors, including Drs Harrison and English, both orthopaedic surgeons.

Mr Kumar said that immediately delete after the incident, he reported it to Messrs Tweedie and Baker who reported it to Mr Jones. Mr Kumar said that Mr Jones then spoke to Mr Chandra, and to him individually, and suspended them both on pay. Mr Chandra was subsequently dismissed on 13 November 2013.
Mr Kumar’s evidence was that on the following Monday, 11 November 2013, his right shoulder was worse, so he attended at Dr A Renegeris, following which he had an X-ray and ultrasound. He was referred for physiotherapy, and to Dr D Duckworth, an Orthopaedic Surgeon.
Mr Kumar said that following the incident of 8 November 2013, he could not work, did not have any money to go out anywhere, not even to have a few beers with mates or dinner, and that he felt very sad.
NOVEMBER 2013 - Matter 2014/1431 - Depression and Anxiety
On 27 November 2013 Mr Kumar made a claim for psychological injury, being Depression and Anxiety. In the claim form, Mr Kumar described a physical assault, and repeated assaults by Danny Chandra.
The clinical notes of Dr Renegeris of 19 November 2013 (Exhibit A17), record Mr Kumar suffering Anxiety and Depression, and saying the condition was related to bullying at work.
Dr D Tang also reported in November 2013 that Mr Kumar was suffering Anxiety and Depression.
Dr Renegeris referred Mr Kumar to Ms Salme Dilek, a Psychologist. Her report and evidence which is discussed below, is at Exhibit A6. Exhibit A9 is a record of the dates on which Mr Kumar consulted her, and Exhibit A10, comprises Ms Dilek’s clinical notes. For purposes of this application, Mr Kumar was also examined by Drs Westmore and Vickery who are Psychiatrists, and whose reports are at Exhibits A5 and R3 respectively. A discussion of the psychiatric illness follows in the paragraphs below.
JOB DESCRIPTION
Exhibit A13 was a ‘Linfox Role Description’ dated 1 May 2008. It provided a background to the company’s operations, its values, safety responsibilities and other points. It was neither signed by Mr Kumar nor the management of Linfox.
Mr Kumar agreed when questioned, that he had undergone training and various tests during his employment in regard to the employer’s policies. Mr Roy Jones, who at the time of making his statement on 28 November 2013, was the NSW Workshop Manager for Linfox, indicated that Mr Kumar underwent an induction and was provided with the company induction booklet when he commenced work at Linfox in 2008. Mr Jones also stated that Mr Kumar was given extensive safety training in equipment use, and was trained in November 2009 and January 2012. He had training records for those occasions.
Mr Kumar acknowledged he was aware of, and had received training with regard to section 4 of Exhibit A13 which deals with bullying and victimisation, and a further section which deals with the company’s complaints process and employee assistance programs. He also acknowledged he had been informed about the employee assistance program. None of that however is guaranteed to prevent or alleviate bullying or harassment, and in Mr Kumar’s case I accept his evidence that he was reluctant to complain about Mr Chandra on the basis of their common ethnic background, and because he feared Mr Chandra who was also physically bigger than he is.
I am however, critical of managers at Linfox such as Mr Jones and Mr Uren, who whilst knowing of the difficulties between Mr Kumar and Mr Chandra, chose to permit them to continue at work using the same truck, (albeit on different shifts). That observation does not impact on Mr Kumar’s claim, except that if action had been taken earlier, the events of 8 November 2013 may not have occurred.
I have made a note of the evidence Messrs Jones and Uren gave at the Tribunal below. I did not find the evidence of either of assistance with regard to my decision making.
EVIDENCE OF MR ROY JONES
Mr Jones, Linfox NSW Workshop Manager, gave oral evidence and provided reports dated 28 November 2013 (T19) and 31 July 2015 (Exhibit R7). Exhibit R7 had various attachments, including statements of other employees, and Linfox policies.
Mr Jones described Mr Kumar’s job, and noted he had undergone a full induction before he was employed. Mr Jones also gave an account of the work Mr Kumar did servicing trailers, which he stated was not heavy work, as there was no heavy lifting involved. He stated that much of the work was brought back to be carried out in the workshop.
Mr Jones stated that he did not see the altercation between Mr Kumar and Mr Chandra on 8 November 2013, but recalled asking Mr Kumar when he reported it whether he wanted to see a doctor. He also recalled Mr Kumar saying he was OK, and that in any case he (Mr Kumar), did not want to get Mr Chandra into trouble.
Attachment RJ-3 to Mr Jones’ statement was a photocopy of a page of his diary dated 8 November 2013 in which he had recorded notes of the interviews he held separately with Mr Kumar and Mr Chandra. He had recorded Mr Chandra agreeing he had given Mr Kumar a light push on 8 November 2013, whereas Mr Kumar told Mr Jones that he had been pushed hard. Mr Jones noted that following an investigation, Mr Chandra was dismissed on 13 November 2013.
Mr Jones stated that he had not observed Mr Kumar to demonstrate any injury or pain in his right shoulder prior to 8 November 2013.
It seemed to me that when asked about the relationship between Mr Kumar and Mr Chandra, Mr Jones was minimising accounts of his knowledge regarding the conflict between them. He admitted he knew they did not get on, but said that he did not know the reason. Later on in his oral evidence however, Mr Jones said that he asked the staff to keep the truck tidy and clean, and was aware that Mr Chandra hoarded broken parts.
Mr Jones had not included in his notes what Mr Kumar told me, which was that Mr Chandra had said to him that he would cut his throat. Mr Jones said that he had not heard that comment from either man.
In replies to questioning, Mr Jones said that he did not recall any incident such as the one Mr Kumar reported, which was that on 1 November 2012 Mr Chandra kicked him in the shin and punched him in the face. Mr Jones said that he would have taken that seriously if he had known about it. Mr Jones said that unless Mr Kumar made a formal complaint, which he did not on that occasion, he would not have known about it.
Mr Jones also denied knowing anything about the incident in October 2013 in which I have accepted that Mr Chandra punched Mr Kumar. Mr Kumar gave evidence that he reported the incident to Mr Uren.
EVIDENCE OF MR I UREN
Mr I Uren whose report was Exhibit R8 also gave oral evidence. He was a Leading Hand at Linfox on 8 November 2013. He is presently a Workshop Supervisor. Mr Uren acknowledged that he knew about the tension and frustration between Mr Kumar and Mr Chandra regarding the items Mr Chandra brought into the truck, and the housekeeping in the truck. He said that both men complained about each other from time to time.
Mr Kumar indicated in his statement that he reported the assault of late October 2013 to Mr Uren which Mr Uren denied. At paragraph 7 of his statement Mr Uren stated:
(a) I do not recall Mr Kumar reporting any such incident to me in late October 2013 or at any time.
(b) In particular, I do not recall Mr Kumar reporting to me that Mr Chandra had “punched” him on any occasion.
(c) In particular, I do not recall Mr Kumar reporting to me that he had been hit by Mr Chandra.
(d) If Mr Kumar had reported such an incident to me, in particular regarding any event involving unwanted physical contact and/or assault and/or injuries, I would have immediately reported this to Roy Jones.
(e) I would never overlook a complaint by an employee, regarding physical violence.
(f) In the past, when I have been notified of similar incidents and/or occurrences involving different employees, I have escalated and reported these incidents and/ occurrences to Roy Jones in accordance with the Linfox Policies.
In his statement Mr Uren said that he recalled Mr Kumar reporting that he had been involved in an argument with Mr Chandra in November 2012. He noted that Mr Kumar did not want to take it further, and did not complain of any injury. He did not think that Mr Kumar appeared to have suffered an injury, saying that otherwise he would have reported it to Mr Jones. Having heard Mr Kumar’s evidence, I prefer that to Mr Uren’s in regard to the interaction between Mr Kumar and Mr Chandra.
EVENTS IN MR KUMAR’S EMPLOYMENT
The event in 2000
Mr Kumar told me that he was involved in a motor vehicle accident in 2000, some 14 years ago, and returned to work on light duties after a few days. He said that he injured his right shoulder. I noted that the ‘Injury Management Plan’ dated 16 August 2000 (Exhibit R2), provided 7 August 2000 as the injury date. The Plan was concluded in November 2000. It recorded that Mr Kumar returned to his normal duties two months after the accident. Mr Kumar was also referred for stress assessment in a psychology practice at that time. He told me that he was stressed because he was off work.
Mr Grey submitted that Mr Kumar had no history of his right shoulder injury of 2000 impacting on his work, and no problems at work in relation to his right shoulder until mid- 2012. He emphasised that Mr Kumar had a long working history, and continued to work either 55 – 60 hours, or on average 58 hours a week until 8 November 2013. He also submitted that Mr Kumar passed the 2010 pre-employment medical without any problems being noted, and that he worked substantially using his arms and shoulders as a full-time employee of Linfox. Mr Grey submitted that whether work under trucks could be done raising arms at 45 degrees or not, in the real world of employment in order to solve problems, a person had to employ all movements.
I am mindful that the medical examination indicates that when Mr Kumar joined Linfox he had pre-existing degenerative changes, being osteoarthritis of the right shoulder. I accept that Mr Kumar had that condition before the events of 2012/2013, and note however that he passed the 2010 pre-employment medical without any problems being recorded. The evidence before me indicates that he did not report any problems in regard to his right shoulder until he did so to Mr Don Allen in November 2012. He said that he did not make a formal complaint or claim at that time.
Dr H English, an Orthopaedic Surgeon, stated that although the motor vehicle accident Mr Kumar suffered in 2000, may have been significant, Mr Kumar did not recall it when examined by Dr English. However he agreed with Mr Grey that the records indicated Mr Kumar had not had time off work between that episode and 2013.
Whilst the medical evidence indicates that Mr Kumar’s degenerative condition of the right shoulder may have arisen following the 2000 incident, I accept Mr Grey’s submission that Mr Kumar continued to work as a diesel mechanic for the Respondent, and that he did not have time off work between that episode and 2013.
The event of November 2012 (Matter 2014/1430 – Right rotator cuff injury and right upper limb strain)
The issues to be decided in relation to the right rotator cuff injury and right upper limb strain which Mr Kumar claims he sustained in November 2012 while lifting heavy roller doors and repairing trucks follow:
·Whether the Applicant's shoulder injury, being right rotator cuff injury and right upper limb strain he claims was sustained in November 2012 was contributed to a significant degree by the Applicant's employment with the Respondent;
·Whether the Applicant continues to suffer from the effects of the injuries referred to above, and whether liability should be accepted by the Respondent, and compensation paid;
·A consideration of the Respondent’s submission that section 53 of the SRC Act applies because Mr Kumar did not give notice in writing of his 2012 injury to the Respondent as soon as practicable after he became aware of the injury.
Mr Kumar gave evidence that he suffered a right rotator cuff injury and right upper limb strain in November 2012. He said that he was repairing heavy roller doors which were very heavy to lift up. That entailed lying on a board under a truck and using both arms above his head. He said that he developed a sore right shoulder. Mr Kumar said that he reported his injury to Mr Don Allen, a Leading Hand, now deceased. There was no evidence before me that any action was taken, or notation made regarding that report to Mr Allen, and Mr Kumar did not make a formal claim at the time.
I accept from the evidence that the work Mr Kumar was carrying out as a diesel mechanic for Linfox was heavy work.
I accept also from the evidence of Mr Jones with which Mr Kumar ultimately agreed, that the majority of the work could be carried out with arms outstretched at approximately 45 degrees, even when Mr Kumar was under the truck or trailer. This was in contrast to Mr Kumar’s initial evidence which was that he had to reach upwards and over his head to do the work.
I noted in regard to the evidence of Mr Kumar regarding the right rotator cuff injury and right upper limb strain, that medical notes of Dr A Mehraby (Exhibit A18), dated 31 October 2012 indicate that Mr Kumar attended at the Winston Hills Medical Centre, and reported right shoulder pain occurring the previous day, (30 October 2012), post strained at work – does not wants W/C – feels better today.
Mr Kumar agreed he told Dr Mehraby that he did not want to claim workers’ compensation. He said that he suffered pain, but was able to keep on with his work.
Dr Lim, a Rheumatologist, who examined Mr Kumar in 2012, noted that he developed pain in 2012. Mr Kumar said that the pain did not stop him working. (Exhibit A16).
I noted that up to October 2012, Mr Kumar had been working 60 – 70 hours a week, six days a week, with overtime. He told me that from approximately October 2012, he reduced his work to five days a week with overtime, which he said took him to 55 – 65 hours a week.
I have noted that the pay records which are Exhibit R11, and referable to paragraph 10 of Exhibit A1, (Mr Kumar’s statement), do not confirm or deny that he was working five days a week after October 2012 instead of the previous six days a week. I am satisfied with the Respondent’s calculation which indicates that the average time Mr Kumar then worked was 58 hours a week.
The report of Dr J Harrison, an Orthopaedic Surgeon, dated 14 August 2014, was Exhibit A4. Dr Harrison referred to a November 2012 problem Mr Kumar encountered with his right upper extremity of the shoulder while repairing industrial overhead roller doors. Dr Harrison stated that Mr Kumar had some minor discomfort at and around his right arm at the shoulder of which he was aware before the events of Friday 8 November 2013.
M Kumar made a claim for right rotator cuff injury and right upper limb strain – right shoulder – pain right shoulder after working overhead on roller doors and under the truck on 3 December 2013, a year after the incident of 30 October 2012. Liability was denied on 14 February 2014 (T28).
The Respondent submits that section 53 of the SRC Act applies in this matter as Mr Kumar did not report the injury as soon as reasonably practicable, as required by the SRC Act. In addition, the Respondent also submits that the injury did not arise out of Mr Kumar’s employment.
I am satisfied from the evidence that it is more likely than not that Mr Kumar’s right rotator cuff injury and right upper limb strain, which he claims were sustained in November 2012, (actually on 30 October 2012), were contributed to a significant degree, by his employment with the Respondent. Mindful of Mr Kumar’s osteoarthritis of the right shoulder, I am satisfied that the strain reported to Dr Mehraby was a temporary aggravation of Mr Kumar’s degenerative condition of the shoulder. He did not take time off, and I am satisfied that he does not presently suffer the effects of that aggravation.
I have also considered the submission that section 53 of the SRC Act applies in that Mr Kumar did not give notice in writing of his October 2012 injury to the Respondent as soon as practicable after he became aware of the injury. I am not satisfied, in the absence of further evidence, that Mr Kumar reported the injury or aggravation to Mr Allen, and I accept the Respondent’s submission.
Accordingly the claim in Matter 2014/1430 cannot succeed, and the decision of the Respondent must be affirmed.
An event on 1 November 2012
Mr Kumar stated that from approximately June 2012, Mr Chandra was working in the workshop section where he also worked. Mr Kumar stated that he noted at the time that Mr Chandra collected old and used parts, and did not keep the Breakdown Truck clean. Mr Chandra worked on the morning shift. Mr Kumar said that he started throwing the broken parts out, and cleaning up the truck before he could use it on the afternoon shift.
Mr Kumar said that on 1 November 2012, Mr Chandra confronted him in the afternoon in the workshop at the beginning of his shift, in particular about parts and old lights of which he had disposed. He said that without any warning, Mr Chandra then kicked him using his right leg on Mr Kumar’s left shin, and punched him in the face using his right hand.
Mr Kumar said that Mr Don Allen, the Leading Hand, witnessed the event, and reported it to Mr Jones. He said that they spoke to Mr Chandra but not to him, and nothing was done about it.
Mr Kumar was extensively cross-examined by Ms Ford about the incident on 1 November 2012. I note the Respondent’s submissions that Linfox does not accept that the incident, as described by Mr Kumar, occurred at all.
However, I have heard all the evidence, and have taken into account that evidence, and the statements of Messrs Jones and Uren. I am satisfied that the assault by Mr Chandra on 1 November 2012 occurred as reported by Mr Kumar. I reject the submissions of the Respondent in that regard.
The event in October 2013
Mr Kumar stated at paragraph 20 of Exhibit A1 that in late October 2013, approximately three weeks before the incident of 8 November 2013, he was standing in the lunch room at work at approximately 3:30 pm when Mr Chandra confronted him about having thrown some lights away. Mr Kumar considered them to be junk which Mr Chandra had left in the truck. He said that Mr Chandra punched him directly into the right shoulder. He stated that the punch was forceful and I stumbled back. He said that he was fearful for his safety, and reported the incident to Mr Uren. He said that Mr Uren, who had not witnessed it, did nothing about it, as on a previous occasion. In his oral evidence, Mr Uren told me that he could not recall the incident.
Following this incident, Mr Kumar did not immediately attend at a doctor. However, following the consultation with Dr Renegeris on 11 November 2013, (which followed the assault of 8 November 2013), the doctor recorded Mr Kumar telling him he had been assaulted twice in the month before that consultation, and that the pain (in his right shoulder) subsided after 2 - 3 days post the earlier assaults.
There are some inconsistencies in the recording of the assaults which may have occurred due to Mr Kumar’s less than perfect English, and less than perfect communication skills. I noted for example that Dr Westmore, who is a Psychiatrist, recorded in relation to this incident, that Mr Kumar was hit from behind.
Dr Duckworth, a Shoulder and Elbow Surgeon, whom Mr Kumar saw on 26 November 2013, recorded that Mr Kumar told him he was punched in mid-October in the back of the shoulder, and that he had a lot of pain for a couple of weeks. Dr Duckworth recorded that there was then a new injury on 8 November 2013 when Mr Kumar was pushed onto a steel door at work. He concluded that Mr Kumar has a degenerative problem affecting his right shoulder due to osteoarthritis, exacerbated by an injury at work.
Dr English, an Orthopaedic Surgeon, considered the assault of October 2013 to have caused a minor aggravation of Mr Kumar’s degenerative condition of osteoarthritis.

I am satisfied from the evidence that Mr Chandra punched Mr Kumar, as reported in late October 2013, and that Mr Kumar suffered a temporary aggravation to his osteoarthritis of the right shoulder.
The event of 8 November 2013 (Matter 2014/1429 - post traumatic biceps tenosynovitis right shoulder partial thickness supraspinatus tendon tear subscapularis tendinopathy
The issues to be considered in relation to the assault by Mr Chandra which took place on 8 November 2013 onto Mr Kumar’s degenerative right shoulder follow.
·Whether the Applicant's shoulder injury being post traumatic biceps tensynvitis (sic) rt shoulder partial thickness supraspinatus tendon tear which the Applicant claims was sustained on 8 November 2013 was contributed to a significant degree, by the Applicant's employment with the Respondent;
·Whether the Applicant continues to suffer from the effects of the injuries referred to above, and whether liability should be accepted by the Respondent, and compensation paid;
·A consideration of the Respondent’s submission that section 7(7) of the SRC Act operates to exclude an acceptance of liability for the Applicant's claimed right shoulder condition.
The incident at Linfox on Friday 8 November 2013 was the subject of much evidence, discussion, and submissions at the Tribunal. Exhibits R4 and R5, drawings of the truck door, Exhibit A7, photographs of the truck, and Exhibit A8, the overalls Mr Kumar was wearing on 8 November 2013, are relevant. I also heard evidence from various doctors, including Drs Harrison and English, who are both Orthopaedic Surgeons.
Mr Kumar’s evidence was that the problems he had been experiencing with Mr Chandra, continued into 2013. I noted that the incident of 8 November 2013 is the last in a series in which Mr Kumar was involved, and of which he has complained. It is also the last time he attended work at Linfox, as both he and Mr Chandra were stood down on that day. Mr Chandra was subsequently dismissed. Mr Kumar has not returned to work, and claims not to be able to.
In his statement at paragraphs 21 and 22, Mr Kumar said that:
21. On 8 November 2013 at about 3:15 pm I was again physically assaulted by Mr Chandra at East Wing Bay, on the outside of the workshop. When inside the Breakdown Truck I noticed old truck parts, tools, rubbish and grease littered across the floor of the truck. I asked Mr Chandra why he did not maintain a clean truck. I said this all in the presence of Mr Bob Tweedie and Mr Brian Baker (Leading Hands). Mr Chandra walked away.
22. Upon returning to the Breakdown Truck, I noticed Mr Chandra standing beside it. Mr Chandra again called me a “whinger” and “complainer” and then without warning pushed me with force in the chest area using both hands. The push had enough force to make me lose my balance. I stumbled backwards and hit the steel door frame of the Breakdown Truck. The impact was on my shoulders, and I felt pain to my back and shoulder region. I tried to brace the fall with my right arm. Mr Chandra walked away and called me “bastard” in Hindi and said he would “cut my throat”.
In his oral evidence Mr Kumar said that the six foot high door of the Breakdown Truck was open at the time Mr Chandra assaulted him. He described it as being made of steel with sharp edges. He said that when Mr Chandra pushed him, his right shoulder hit the door frame. He said that Mr Chandra pushed him in an area between the spine and shoulders, 5 - 6 centimetres down. He said that he felt pain in his back and right shoulder. Mr Kumar provided the overalls he was wearing on the day, and which he has not washed or otherwise treated since that time. They are Exhibit A8. He said that he stumbled back and used his right arm to support himself, and become upright again. He said that he did not fall over, but that he felt pain in his back and right shoulder. He said that he heard Mr Chandra swearing at him in Hindi.
Mr Kumar said that immediately afterwards, he reported the incident to Messrs Tweedie and Baker, who reported it to Mr Jones. Mr Kumar said that Mr Jones then spoke to Mr Chandra and to him separately, and suspended them both on pay. Mr Chandra was subsequently dismissed on 13 November 2013.
I noted Mr Jones’ evidence that he asked Mr Kumar whether he wanted to see a doctor after the assault by Mr Chandra on Friday 8 November 2013. Mr Kumar said that he could not recall that, could not recall saying he was all right to Mr Jones, but in any case, did not want to report the matter, (because Mr Chandra was also ethnic Indian, and from Fiji). The Respondent has relied on the refusal by Mr Kumar to see a doctor immediately after the assault to submit that it could not have been serious, and that he could not really have been injured. Based on the evidence which is discussed below, I do not accept that.
Mr Kumar said that Mr C Hernandez was present during the altercation. Mr Hernandez who was not called to give oral evidence made a statement (T20), that he heard the two men arguing in Hindi which he does not speak or understand, but stated that he did not see the assault. He also stated that he did not recall Mr Kumar telling him he had hurt his shoulder.
Mr Kumar did not agree with Mr Jones’ evidence that 8 November 2013 was the first time he had been notified of incidents with Mr Chandra. He told me that he reported the incidents to various of the supervisors, as I have recorded above. He said however that no action was taken until 8 November 2013.
Mr Kumar said that when he gave his account of the assault to Mr Jones on 8 November 2013, he told Mr Jones that Mr Chandra had threatened in Hindi to cut his throat. He noted that Mr Jones had not put that into his report.
I noted the Incident Report of the assault on 8 November 2013 at Exhibit A12 which recorded relevantly:
Dany (sic) Chandra and Adip (Kumar) were outside the service van and they were discussing the state of the service van. Danny Chandra pushed Adip unexpectedly and Adip hit the door frame of the truck in the area between his shoulder blades.
When asked about the mark on Mr Kumar’s overalls, Mr Jones said that he had no particular knowledge of the state of the truck on that day, but that the mark on the overalls was unlikely to have been from the tray of the truck.
Mr Kumar’s evidence was that by Monday 11 November 2013, (following the assault of 8 November 2013), his right shoulder felt worse, so he attended at Dr Renegeris. He was referred for an X-ray and ultrasound. He said that Dr Renegeris advised him to report the assault to the Police which he did. He also referred Mr Kumar was for physiotherapy, and to Dr Duckworth, an Orthopaedic Surgeon.
Dr Renegeris reported that the ultrasound for which he referred Mr Kumar indicated post traumatic biceps tenosynovitis, partial supraspinatus tendon tear supraspinatus and subscapularis tendinopathy, bursitis and impingement syndrome. He noted that the X-ray indicated Mr Kumar suffers osteoarthritis.
Dr Renegeris’ clinical notes record Mr Kumar telling him about the incident of 8 November 2013, and record that Mr Kumar reported: he keeps punching me. (Exhibit A17).
Dr Renegeris stated in his report of 4 December 2013, that when he first saw Mr Kumar on 11 November 2013, Mr Kumar:
complained of severe pain in his right shoulder as a result of a fall where his shoulder hit the edge of a steel door. He further amplified the history by informing me that over the last month he had been assaulted at work on two previous occasions, when a co-worker punched him on his right shoulder. … Pain occurred but seemed to subside over 2-3 days post-assaults. On this occasion, he was physically pushed and fell onto the edge of the door at work. This time the pain did not subside. The final injury was a direct blunt blow to the rotator cuff of his right shoulder. (Exhibit A14).
Dr Renegeris also stated that:
repetitive activity of shoulders in his position as a mechanic may cause increased wear and tear to rotator cuff but would not result in his current problem without an acute injury. The issue of alleged harassment at work and its resultant depressive symptoms in the patient need to be addressed.
The clinical notes of Dr Renegeris of 11 November 2013 also record with regard to Mr Kumar:
Being bullied at work – another employee keeps punching hin (sic). – rt shoulder – On 8/11/13 –3pm he was violently pushed into a door injuring his shoulder (Rt) –even more.
Has previously reported this to his boss—but nothing has been done.
Not want W/C
Dr Renegeris also stated that:
What is critical in this situation is that prior to the three episodes of injury at work, he did not, to my knowledge, complain of pain in his right shoulder. Indeed, after the first two injuries the pain subsided. It was only after the more aggravating force of the third episode, that persistent pain occurred. He had now sustained an acute injury. Ultrasound shows some chronic changes but these could have been the result of the two previous injuries and the one on 8/11/2013 was the straw that broke the camel’s back. Clinically he has pain (constant) and reduction in function of his right shoulder. This is consistent with the radiological evidence.
…
The issue of alleged harassment at work and its resultant depressive symptoms in the patient need to be addressed.
On 14 November 2013, Dr Renegeris issued a medical certificate for Mr Kumar and recorded: Patient is depressed re bullying at work and nw feels aweful (sic) due to injury.
On 29 November 2013 (Exhibit R10), Mr Kumar lodged a workers’ compensation claim for depression and anxiety. He described repeated assaults by Danny Chandra.
Mr Kumar said that following the incident of 8 November 2013, he could not work, did not have any money to go out anywhere, not even to have a few beers with mates, or dinner, and that he felt very sad.
When asked about his reaction to being suspended, Mr Kumar agreed that he was very angry, but said that all he could do was to go home. He agreed that, yes, he was the victim, and that it was unfair. He did not agree that the incident had changed his attitude to Linfox. When asked why he did not tell the Police to whom he made a report regarding the 8 November 2013 assault about earlier incidents, he said that the Police were not interested.
In order to decide whether the Applicant's right shoulder injuries which he claims were sustained on 8 November 2013 were contributed to a significant degree by his employment with the Respondent, and whether he continues to suffer from the effects of the injuries referred to above, I have considered further medical evidence in the paragraphs which follow, and the guidance of cases such as Comcare v Sahu Kahn [2007] FCA 15.
Dr D Duckworth, Shoulder and Elbow Surgeon
I noted that Dr Duckworth reported on 26 November 2013 that: Mr Kumar presents with a degenerative problem affecting his right shoulder due to osteoarthritis. This has been exacerbated by an injury at work. (Exhibit A15).
Dr Duckworth recorded in his report that Mr Kumar had suffered episodes of trauma to his right shoulder over the last month, the last being the incident of 8 November 2013.
Dr I Lim, Consultant Rheumatologist
Dr Lim reported on 25 February 2015 that the provisional diagnoses for Mr Kumar were:
·Chronic restriction and pain at the right shoulder
·Rotator Cuff Tendinopathy. Right Shoulder
·Osteoarthritis: Glenohumeral, Right
(Exhibit A16)
Dr Lim considered reconstruction surgery as an option, adding that: From what history I have garnered, it would seem reasonable to assume that the workplace incident described that worsened his shoulder pain significantly was an exacerbating or aggravating factor.
Dr J Harrison, Orthopaedic Surgeon
The report of Dr Harrison dated 14 August 2014, was Exhibit A4. Dr Harrison also gave oral evidence. He referred to a November 2012 problem which Mr Kumar encountered with his right upper extremity of the shoulder while repairing industrial overhead roller doors. Dr Harrison stated that Mr Kumar then had some minor discomfort at and around his right arm at the shoulder of which he was aware before the events of Friday 8 November 2013.
I noted that the chronology Dr Harrison recorded regarding the assaults of Mr Kumar by Mr Chandra was different from the time line provided at the hearing which I have accepted. Dr Harrison appears to have confused the events of October 2013 and 8 November 2013.
Dr Harrison referred to an assault in late October 2013 where Mr Chandra punched Mr Kumar around his right shoulder. He then added that: … Chandra had pushed him into a steel door with both arms on his shoulders and he struck his right shoulder, then fell to the ground using his right arm to break that fall on the concrete surface below. Clearly, whilst not entirely correct according to Mr Kumar’s evidence, that is a reference to the 8 November 2013 event.
Dr Harrison then referred to a further incident on 8 November 2013, where after Mr Kumar had exchanged words with Chandra about the untidy state of the truck, Mr Chandra approached and challenged Mr Kumar about why he had thrown the parts away. Dr Harrison noted that before Mr Kumar could answer, he was kicked in the shins, and punched in the face by Mr Chandra. I am satisfied that actually occurred on 1 November 2012, and not on 8 November 2013 as recorded by Dr Harrison.
Dr Harrison concluded that during the altercation, which I accept occurred on 8 November 2013, and which he incorrectly dated as late October 2013, Mr Kumar had aggravated what were pre-existing degenerate changes in the right gleno-humeral joint that have remained symptomatic since then, and which have continued to affect him with diminished aspects to his comfort, confidence and mobility of that right arm at the shoulder. Dr Harrison also said that following the punch, he used his right arm to break the fall. I accept from the evidence that Mr Kumar did not fall to the ground as a result of Mr Chandra pushing him on 8 November 2103, but that Mr Kumar used his right arm to brace himself as he lost balance when he was pushed against the door of the truck.
In his oral evidence, (given by telephone), Dr Harrison opined that Mr Kumar is a man with very advanced osteoarthritis, exacerbated by his work, and that he managed as many people do, without complaining. Dr Harrison commented that people who do sedentary work can be equally disposed to osteoarthritis. It was however, often that an accident was the basis for the development of osteoarthritis. He opined that Mr Kumar’s accident 12 years previously (the motor accident in 2000), may have been the basis for his development of osteoarthritis. The history Dr Harrison took was that prior to 8 November 2013, Mr Kumar only suffered minor discomfort in his shoulders and arm.
I noted that when Mr Kumar was examined by Dr Harrison in August 2014, the doctor recorded that he told him he suffered minor shoulder pain before the incident of 8 November 2013. Mr Kumar agreed in cross-examination that that was what he had said.
Dr H English, Orthopaedic Surgeon
Dr English provided a report dated 18 November 2014 (Exhibit R6), and gave oral evidence by telephone. He told me that he had been a car mechanic for two years of his life which Ms Ford considered relevant to his personal knowledge regarding events in Mr Kumar’s work with Linfox.
Dr English noted that Mr Kumar gave accounts of right shoulder injuries following three separate work events, noting firstly, the discomfort Mr Kumar felt in his right shoulder when repairing an industrial overhead roller door in November 2012. Dr English described an incident in November 2012 where Mr Kumar told him Mr Chandra had punched him in the face, and kicked him in the shin. Another event was noted by Dr English as having taken place in October 2013 when Mr Chandra punched him in the right upper back and scapular region. Dr English also described the event of 8 November 2013, when following abuse in Hindi, Mr Chandra pushed Mr Kumar into the frame of an open steel door with Mr Kumar striking his scapular region against the steel frame.
Dr English reviewed other reports and documents supplied to him in regard to Mr Kumar. He concluded that Mr Kumar has osteoarthritis of the right shoulder which is likely to be constitutional in nature. He opined that the minor wasting of the deltoid in Mr Kumar was due to the fact that when Dr English saw him, he had not worked for a year.
Dr English noted that the three episodes of work related exacerbations which occurred, may have produced a short period of increased symptoms, but were not compatible with causing osteoarthritis within the shoulder. He stated that: Currently ongoing symptoms relate to the underlying osteoarthritic process rather than any work related injury or aggravation.
Dr English stated that he disagreed with Dr Harrison’s report of 14 August 2014. Noting that Mr Kumar did not fall to the ground as a result of the assault of 8 November 2013, Dr English noted that the punch injury was to the right scapula rather than the right shoulder. He stated that he would agree with Dr Harrison to the extent that:
The range of motion findings are quite similar. I would agree in general with his thoughts that this is an exacerbation or aggravation of pre-existing degenerative change within the right glenohumeral joint, but in terms of his impairment assessment, I am surprised he makes only a one-tenth deduction for this. A blow to the right scapular region cannot be regarded as the main cause for Mr Kumar’s ongoing disability.… The current dysfunction relates entirely to the underlying osteoarthritis.
Mr Grey put to Dr English Mr Kumar’s situation, which was that prior to 8 November 2013 he was working some 55 – 65 hours a week as a diesel mechanic, and that the assault of 8 November 2013 created a sudden worsening of his pain, rather than a consistent gradual underlying degeneration of his right shoulder. He therefore emphasised the significance of the incident and severity of the impact of the assault of 8 November 2013. Dr English insisted the osteoarthritis was present, and that the incident triggered symptoms which represented a temporary aggravation. Dr English emphasised also that people in distress focus more on pain than others.
The Tribunal’s considerations
Mr Kumar was challenged by Ms Ford who put to him, and then made submissions that the assaults reported by Mr Kumar prior to that of 8 November 2013, did not occur as reported. As I have already stated above, I have considered all the evidence before me, and I accept Mr Kumar’s version of events, and accounts of the assaults by Mr Chandra on him.
I have considered the medical evidence in connection with whether the Applicant's shoulder injury/aggravation, being post traumatic biceps tenosyonvitis partial thickness supraspinatus tendon tear sustained on 8 November 2013 was contributed to a significant degree, by the Applicant's employment with the Respondent. I also need to consider whether Mr Kumar continues to suffer from the effects of the injuries referred to above, and whether he should be compensated.
I rely on the evidence of Drs Renegeris, Duckworth, Lim, English and Harrison to find that Mr Kumar suffers a degenerative condition of osteoarthritis of the right shoulder.
Dr Duckworth and Dr Lim whom I have quoted below, opined that the osteoarthritis was exacerbated by an injury at work. Dr Lim considered reconstruction surgery as an option, adding that: From what history I have garnered, it would seem reasonable to assume that the workplace incident described that worsened his shoulder pain significantly was an exacerbating or aggravating factor.
I have already commented above that Dr Harrison recorded the dates of the assaults on Mr Kumar incorrectly. However I accept his opinion that Mr Kumar aggravated what were pre-existing degenerative changes in the right gleno-humeral joint (on 8 November 2013), that have remained symptomatic since then, and which have continued to affect him with diminished aspects to his comfort, confidence and mobility of the right arm at the shoulder.

Dr English’s opinion was that: A blow to the right scapular region cannot be regarded as the main cause for Mr Kumar’s ongoing disability. … The current dysfunction relates entirely to the underlying osteoarthritis. Dr English was the only doctor whose report was before the Tribunal who did not consider that the assault of 8 November 2013 worsened Mr Kumar’s shoulder pain significantly, and that it persists.
I also rely on the medical evidence of Dr Renegeris whom Mr Kumar consulted on Monday 11 November 2013, only the weekend after the assault of Friday 8 November 2013. He stated:
What is critical in this situation is that prior to the three episodes of injury at work, he did not, to my knowledge, complain of pain in his right shoulder. Indeed, after the first two injuries the pain subsided. It was only after the more aggravating force of the third episode, that persistent pain occurred. He had now sustained an acute injury. Ultrasound shows some chronic changes but these could have been the result of the two previous injuries and the one on 8/11/2013 was the straw that broke the camel’s back. Clinically he has pain (constant) and reduction in function of his right shoulder. This is consistent with the radiological evidence.
I am satisfied from the evidence of Mr Kumar and Dr Renegeris that the Applicant continues to suffer from the effects of the injuries referred to above, and accept that liability should be accepted by the Respondent, and compensation paid. I prefer that evidence to that of Dr English, who considered the effects of the assault of 8 November 2013, were simply due to the constitutional osteoarthritis Mr Kumar suffers.
I am satisfied from the evidence that Mr Kumar continues to suffer from the effects of the injuries referred to above, in particular as a result of the assault by Mr Chandra on 8 November 2013, and that his employment with the Respondent contributed to a significant degree to the shoulder injury/aggravation he suffered on that day. The Respondent must accept liability and compensation must be paid.
I have also considered the Respondent’s submission that section 7(7) of the SRC Act operates to exclude an acceptance of liability for the Applicant's claimed right shoulder condition. I do not accept that submission as I find that notwithstanding a few minor inconsistencies in the history various doctors have recorded which may result in part from Mr Kumar’s nervous state or English language skills, I am satisfied that he is a witness of truth.
Matter 2014/1431 - Depression and Anxiety
·Whether the Applicant suffers from a psychiatric condition which he claims is Depression and Anxiety; if so,
·Whether that condition developed secondary to any compensable condition under the SRC Act, such that liability can be extended to include the Applicant's claimed psychiatric condition;
·Whether the Applicant's claimed psychiatric injury, being Depression and Anxiety was contributed to a significant degree, by the Applicant's employment with the Respondent;
·Whether the Applicant continues to suffer from the effects of the injuries referred to above, and whether liability should be accepted by the Respondent, and compensation paid;
·A consideration of the Respondent’s submission that the Applicant is excluded from claiming for the psychiatric injury due to the operation of section 5A(1) of the SRC Act.
As already stated above, following the events of Friday 8 November 2013, Mr Kumar attended upon Dr Renegeris on Monday 11 November 2013 because he felt his right shoulder hurting.
The clinical notes of Dr Renegeris of 11 November 2013 record with regard to Mr Kumar:
Being bullied at work – another employee keeps punching hin (sic). – rt shoulder – On 8/11/13 –3pm he was violently pushed into a door injuring his shoulder (Rt) –even more.
Has previously reported this to his boss—but nothing has been done.
Not want W/C
Dr Renegeris also stated that:
What is critical in this situation is that prior to the three episodes of injury at work, he did not, to my knowledge, complain of pain in his right shoulder. Indeed, after the first two injuries the pain subsided. It was only after the more aggravating force of the third episode, that persistent pain occurred. He had now sustained an acute injury. Ultrasound shows some chronic changes but these could have been the result of the two previous injuries and the one on 8/11/2013 was the straw that broke the camel’s back. Clinically he has pain (constant) and reduction in function of his right shoulder. This is consistent with the radiological evidence.
…
The issue of alleged harassment at work and its resultant depressive symptoms in the patient need to be addressed. (The Tribunal’s emphasis)
On 14 November 2013, Dr Renegeris recorded:
Patient is depressed re bullying at work and nw feels aweful (sic) due to injury
On 21 November 2013, Dr Renegeris recorded that a Mental Health Plan was considered and that, in addition to a physiotherapist for his physical problems, Mr Kumar needed to see a psychologist separately.
Ms Salme Dilek, Registered Psychologist
Dr Renegeris referred Mr Kumar to Ms Salme Dilek. Her report dated 13 July 2015, and evidence which is discussed below, is at Exhibit A6. Exhibit A9 is a record of the dates on which Mr Kumar consulted her (approximately 24 times from 17 January 2014 to July 2015). Exhibit A10, comprises Ms Dilek’s clinical notes.
Ms Dilek gave oral evidence, and told me that she first saw Mr Kumar on 17 January 2014 on referral from his General Practitioner for depression and panic/anxiety. She said that she was presently still treating him. She has also conducted psychological tests.
I am satisfied that the history Ms Dilek has recorded in her report of the assaults on Mr Kumar by Mr Chandra is accurate. Ms Dilek recorded that the consequence to the aggressive assault experienced by Mr Kumar on 8 November 2013 significantly affected his psychological well-being as well as causing physical problems. She noted that Mr Kumar had no history of psychiatric illness, and opined that he was suffering Major Depression and Severe Anxiety following the assault of 8 November 2013.
Ms Dilek reported that Mr Kumar told her prior to being cleared for permanent full-time work at Linfox in 2010, he had suffered no shoulder injury. He reported a hand injury (two fingers), when he was crushed by a wheel, but said that he returned to work within six weeks and suffered no ongoing problems as a result.
Ms Dilek stated that post 8 November 2013, there were Work Cover certificates and medical progress notes of Dr Renegeris and Dr Paw indicating that Mr Kumar presented with three episodes of trauma to his right shoulder in a month. She stated that the last was on 8 November 2013 when Mr Kumar was pushed onto the edge of a steel door at work. Ms Dilek noted that Dr Renegeris recorded Mr Kumar’s final injury was a direct blunt blow to the rotator cuff of his right shoulder, and noted that Dr Renegeris commented that prior to the three episodes of injury at work, Mr Kumar did not complain of pain to his right shoulder. He had also recorded: It was only after the more aggravated force of the third episode that persistent pain occurred. He had now sustained an acute injury.
Ms Dilek recorded details of all the assault incidents, and noted that Mr Kumar told her about the incident of 8 November 2013 when he and Mr Chandra argued about the state of the truck which Mr Kumar said was due to Mr Chandra leaving rubbish and grease around. Ms Dilek recorded Mr Kumar telling her that Mr Chandra called him a whinger and complainer, and suddenly pushed him, using both his hands in the chest area. Mr Kumar reported that the force of the push made him lose his balance, so that he stumbled backwards and hit the frame of the steel door of the truck. Mr Kumar told Ms Dilek that he felt intense pain on his shoulders and back, and braced himself with his right arm to stop himself falling over. He said that Mr Chandra called him a bastard and threatened to cut his throat. Mr Kumar said that he was fearful; he reported the incident to Mr Tweedie and Mr Baker who told Mr Jones. Both men were stood down.
Mr Kumar told Ms Dilek that he had been seen by various doctors, had investigations done, but that liability had not been accepted by Linfox for his injuries, both physical and psychological. He told her he had been prescribed anti-depressants. Ms Dilek administered various psychological tests, and found that Mr Kumar suffered physical and psychological injuries as a result of the assault on 8 November 2013. Ms Dilek noted that Mr Kumar also grieved as a result of not being able to work, something he loved and had done for up to 70 hours a week since he was 16 years old.
She added that it appeared to her Mr Kumar’s symptoms progressively deteriorated when his work place failed in their duty of care of address the ongoing issues at work which resulted in three separate physical assaults.
In her oral evidence Ms Dilek said that she deferred to the psychiatrists for the formal diagnosis.
I noted that for purposes of this claim, Mr Kumar was also examined by Drs Westmore and Vickery who are Psychiatrists, and whose reports are at Exhibits A5 and R3 respectively. A discussion of the psychiatric illness follows in the paragraphs below.
Dr B Westmore, Psychiatrist
Dr Westmore, gave oral evidence by telephone from Vancouver. He had examined Mr Kumar in October 2014, and his report dated 4 February 2015 was before the Tribunal as Exhibit A5. Mr Kumar, assisted by his son, informed Dr Westmore of three incidents during which he had been assaulted by Mr Chandra, being November 2012 (kicked and punched in the face); three weeks before 8 November 2013 (hit in the shoulder from behind); 8 November 2013, (final assault).
Dr Westmore recorded Mr Kumar’s statements about his personal life and daily life. He diagnosed a Major Depressive Disorder, and opined that at the time he assessed Mr Kumar, the Applicant was totally unemployable due to the severity of the depression. Dr Westmore considered that Mr Kumar’s employment was a substantial contributing factor, the main contributing factor to his Major Depressive Disorder. He explained that in his opinion, Mr Kumar had already suffered a psychological workplace injury sometime in 2012, and that the 8 November 2013 assault aggravated the pre-existing injury.
In a report dated 19 May 2015, Dr Westmore commented on the report of Dr G Vickery, also a Psychiatrist (Exhibit R3). He stated that he disagreed with Dr Vickery’s opinion which was that Mr Kumar was suffering a chronic Adjustment Disorder with Depressed Mood which Dr Vickery thought arose as a result of the denial of his claim and shoulder pain, and his unemployment. He noted Dr Vickery did not think Mr Kumar developed any psychological condition at all as a result of being assaulted in the workplace, which he (Dr Westmore) did not accord with psychiatric common sense. Dr Westmore maintained his diagnosis of Major Depressive Disorder.
Ms Ford provided an alternative background with regard to the assault incidents which she asked Dr Westmore to assume. They were in summary the position of the Respondent that Mr Kumar is not a witness of truth, and that:
·there was only one assault, and not three, by Mr Chandra, that is only one, and on 8 November 2013;
·Mr Kumar was not a person who avoided attending at doctors as indicated by the general practitioner’s record of his attendances for minor complaints;
·Mr Kumar had not lost a lot of weight as he had indicated to Dr Westmore; he weighed 58 kgs in 2010 and 56 kgs in 2014;
·he could not be as depressed as he claimed because he cared about his appearance, and dyed his hair at least once, (remnants of which were visible at the Tribunal but not to Dr Westmore in 2014); he did not go to pubs once suspended because he had no money to do so;
·both Mr Kumar and Mr Chandra are of Indian background and from Fiji and shared a truck; it was for that reason that Mr Kumar did not want to get Mr Chandra into trouble;
·Mr Chandra who is a little bit taller than Mr Kumar, pushed Mr Kumar lightly on 8 November 2013; Mr Kumar said he was ok afterwards and did not want to attend at any doctor;
·Mr Kumar only went to the Police after he had been to a doctor on 11 November 2013, and this was suggested by the doctor;
·Mr Kumar was upset that both he and Mr Chandra were suspended; Mr Kumar said it was unfair, he felt sad and wanted to work.
On the basis of the alternative scenario noted above, Dr Westmore commented that Mr Kumar’s history was difficult to elicit when he examined him, and that he had problems of recall. Based on the above scenario, Dr Westmore commented that if Mr Kumar’s sadness or depression was at a lesser level as found by Dr Vickery, and Mr Kumar was more functional and less disturbed than first thought, then he may be less pervasively depressed. Dr Westmore acknowledged that if Mr Kumar’s perception that being suspended from work was unfair, then the sudden cessation of work when he had been working approximately 58 hours per week, could have impacted on Mr Kumar’s mental state.
As to the ethnic bond with Mr Chandra; Dr Westmore commented that it was possible Mr Kumar was protecting Mr Chandra. However, it was an assault from within a social group, which could indeed be a hostile event, and worse.
I do not accept the scenario Ms Ford provided for Dr Westmore because it is not accurate, in particular as to Mr Kumar’s truthfulness as a witness, and accordingly as to the number of times Mr Chandra had assaulted him. I have included it for the sake of completeness only. I therefore accept Dr Westmore’s opinion that Mr Kumar’s diagnosis was of Major Depressive Disorder, which Dr Westmore formed after examining the Applicant, and which he expressed in his oral evidence and his report at Exhibit A5.
Dr G Vickery, Psychiatrist
Dr Vickery provided a report dated 21 April 2015, which was Exhibit R3, and gave oral evidence. Dr Vickery recorded Mr Kumar telling him he had lost 10 kgs, and was drowsy during the day, but had insomnia. Dr Vickery wrote: There is a loss of motivation and quoted Mr Kumar saying, I feel depressed as I’m not able to work due to my shoulder.
Dr Vickery also recorded that in mid-October 2012, Mr Kumar had an argument with Mr Chandra regarding the state of the truck. He quoted Mr Kumar saying: The other mechanic didn’t like it and he put his hand on my shoulder.
Dr Vickery also recorded that on 9 November 2013 the other mechanic was angry as Mr Kumar had thrown away the spare parts. Dr Vickery then recorded Mr Kumar saying: he pushed me and my right shoulder hit the steel door frame of the van. Mr Kumar told me he had told Dr Vickery that it was a hard push.
Dr Vickery noted that on 19 November 2013, Mr Kumar completed a questionnaire with his General Practitioner which indicated he was experiencing Anxiety and Depression which he related to: not working and boredom and I couldn’t believe this could happen to me.
Dr Vickery also recorded Mr Kumar telling him he had pain in his right shoulder.
Dr Vickery stated:
Mr Kumar was frustrated and withdrawn. There was no evidence of clinically significant anxiety disorder, melancholic depression, paranoid delusional ideation or formal thought disorder. There was no apparent cognitive impairment in his concentration or memory.
Dr Vickery diagnosed Chronic Adjustment Disorder with Depressed Mood due to the denial of Mr Kumar’s claim, and his shoulder pain, and his unemployment, which was non-compensable. He stated that the diagnosed psychological condition Mr Kumar suffers did not arise as a consequence of the event of 8 November 2013, and is related to denial of his claim, and would be ongoing if the stressors continued. Dr Vickery considered that Mr Kumar was psychologically fit to work up to 20 hours a week.
Dr Vickery stated that he disagreed with Dr Westmore’s opinion that Mr Kumar suffered a psychological workplace injury prior to the alleged assault. He noted that Mr Kumar did not consult his General Practitioner, and did not take time off work for any psychological injury over that period.
When giving his oral evidence, Dr Vickery accepted from the diagnosis of Dr Renegeris that Mr Kumar had Anxiety and Depression shortly after 8 November 2013, but maintained that it did not arise from the workplace. However I noted that when he gave his oral evidence Dr Vickery agreed he did not read the many reports of pain and depression to which he was referred. I accordingly found his evidence incomplete, and of less assistance than that of Dr Westmore.
When giving his oral evidence, Dr Vickery commented on Dr Westmore’s diagnosis of Major Depression. He stated that Major Depression included the person experiencing a general shutdown, becoming withdrawn, and requiring medication and psychotherapy. He described an onset over several months in contrast to Adjustment Disorder where the person is generally well before a stressor occurs, as was the case in Mr Kumar’s case according to him. Dr Vickery accepted that Mr Kumar suffered the Anxiety and Depression shortly after the incident of 8 November 2013, opining that once the stressors are removed, (such as Mr Kumar’s work situation), the chronic issues also resolve.
The Tribunal’s conclusions
In conclusion, I am satisfied, as also held in the reviewable decision dated 14 February 2014, that Mr Kumar suffers from Depression and Anxiety which can be characterised as a disease pursuant to section 5B of the SRC Act. Dr Westmore and Ms Dilek both made that diagnosis, although as a Psychologist, she has correctly deferred to the Psychiatrists on the issue of diagnosis. I noted that Dr Westmore considered that Mr Kumar’s employment was a substantial contributing factor, the main contributing factor to his Major Depressive Disorder. He explained that in his opinion, Mr Kumar had already suffered a psychological workplace injury sometime in 2012, due to bullying and earlier assaults by Mr Chandra, and that the 8 November 2013 assault aggravated the pre-existing injury.
I prefer Dr Westmore’s opinion to that of Dr Vickery’s diagnosis of Chronic Adjustment Disorder with Depressed Mood arising out of the denial of Mr Kumar’s claim, and his shoulder pain and his unemployment. I am also mindful that the history taken by Dr Westmore was more accurate and in depth than that of Dr Vickery.
In considering whether the Applicant continues to suffer from the effects of the psychiatric injuries referred to above, I have taken into account Mr Kumar’s evidence, and the evidence of Ms Dilek and the two psychiatrists. Mr Kumar’s evidence was that he was very sad. Ms Dilek continues to treat Mr Kumar for his psychiatric illness, and has expressed the view that whilst she cannot prescribe medication, he should be taking medication. Mr Kumar provided me with a prescription for an anti-depressant which is Exhibit A11, but said that he could not afford to buy it. He had also been prescribed other anti-depressant medication.
I accepted Dr Westmore’s opinion that at the time he assessed Mr Kumar, the Applicant was totally unemployable due to the severity of his Depression.
In his report dated 19 May 2015, Dr Westmore commented on the report of Dr G Vickery, (Exhibit R3). He stated that he disagreed with Dr Vickery’s opinion which was that Mr Kumar was suffering a chronic Adjustment Disorder with depressed mood which Dr Vickery thought arose as a result of the denial of his claim and shoulder pain, and his unemployment. He noted Dr Vickery did not think Mr Kumar developed any psychological condition at all as a result of being assaulted in the workplace, which he (Dr Westmore) did not accord with psychiatric common sense. Dr Westmore maintained his diagnosis of Major Depressive Disorder.

From the evidence before me, and the more accurate reporting of the events Mr Kumar suffered, and continues to suffer, I prefer the opinion of Dr Westmore to find that the Applicant continues to suffer from the effects of the psychiatric injuries arising out of his workplace bullying by Mr Chandra, and his shoulder injury. I have found in the paragraphs above that the physical effects Mr Kumar suffers as a result of the events of 8 November 2013 are compensable, as there was a significant contribution by the workplace, being the assaults, both verbal and physical by Mr Chandra. I find taking into account all the evidence, that the psychiatric injury arose out of the assaults by Mr Chandra, and was contributed to significantly by the workplace, as first indicated by Dr Regeneris in his clinical notes, his referral of Mr Kumar to Ms Dilek, and the report of Dr Westmore. I find this in accordance with the principles enunciated in Comcare v Sahu Khan [2007] FCA 15.
Liability should be accepted by the Respondent, and compensation paid.
I have also considered the Respondent’s submission that the Applicant is excluded from claiming for the psychiatric injury due to the operation of section 5A(1) of the SRC Act. I am not satisfied from the totality of the evidence that Mr Kumar’s psychiatric injury has arisen as a result of reasonable administrative action taken in a reasonable manner by his workplace. I have found above that Mr Kumar’s psychiatric illness is due to the bullying and assaults by Mr Chandra, management’s lack of response and attention to that, and the pain and disability arising out of his physical injuries.
DECISION
Matter 2014/1430 – The Tribunal affirms the decision under review.
Matter 2014/1429 – The Tribunal sets aside the decision of Linfox Australia Pty Ltd and in substitution decides that liability pursuant to section 14 of the Safety Rehabilitation and Compensation Act 1988 is accepted for Mr Kumar’s right shoulder condition, being a post traumatic biceps tenosynovitis, right shoulder partial thickness supraspinatus tendon tear, subscapularis tendinopathy.
Matter 2014/1431 – The Tribunal sets aside the decision of Linfox Australia Pty Ltd and in substitution decides that liability pursuant to section 14 of the Safety Rehabilitation and Compensation Act 1988 is accepted for Mr Kumar’s Depression and Anxiety.
Pursuant to section 67 of the Safety, Rehabilitation and Compensation Act 1988, the Tribunal orders the Respondent pay the costs incurred by the Applicant in relation to 2014/1429 and 2014/1431.

I certify that the preceding 183 (one hundred and eighty - three) paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member
.............................[sgd]...........................................
Associate
Dated 6 November 2015

Date(s) of hearing 3, 4, 5, 6 August 2015

Counsel for the Applicant Mr L Grey

Solicitors for the Applicant Turner Freeman

Counsel for the Respondent Ms E Ford

Solicitors for the Respondent Moray and Agnew

[2015] AATA 850

6 November 2015

Key Legal Topics

Areas of Law

Employment Law

Negligence & Tort

Legal Concepts

Causation

Damages

Duty of Care

Negligence

Remedies

Vicarious Liability

Division	GENERAL DIVISION
File Numbers	2014/1429, 2014/1430, 2014/1431
Re	Adip Kumar
APPLICANT
And	Linfox Australia Pty Ltd
RESPONDENT

Tribunal	Ms G Ettinger, Senior Member
Date	6 November 2015
Place	Sydney

Date(s) of hearing	3, 4, 5, 6 August 2015
Counsel for the Applicant	Mr L Grey
Solicitors for the Applicant	Turner Freeman
Counsel for the Respondent	Ms E Ford
Solicitors for the Respondent	Moray and Agnew