Kumar and Linfox Australia Pty Ltd (Compensation)

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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

  1. 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.

  2. 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.

  3. 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,…

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Details
Case
[2015] AATA 850
Decision Date

CaseChat Overview and Summary

Kumar and Linfox Australia Pty Ltd involved a dispute between Mr Kumar, a former employee of Linfox Australia Pty Ltd, and the company regarding his entitlement to compensation for injuries and conditions sustained during his employment. Mr Kumar claimed compensation for a right shoulder injury, as well as for depression and anxiety, which he asserted were caused or exacerbated by his work with Linfox. The primary legal issues before the court were whether Mr Kumar's right shoulder condition, depression, and anxiety were caused by or significantly contributed to by his employment, and if so, whether Linfox was liable for these conditions under the Safety, Rehabilitation and Compensation Act 1988.

The court meticulously examined the evidence presented, including medical reports and testimonies from various witnesses. It concluded that Mr Kumar's right shoulder condition, a post-traumatic biceps tenosynovitis, partial thickness supraspinatus tendon tear, and subscapularis tendinopathy, was significantly contributed to by his employment, particularly the assault on 8 November 2013 by a co-worker, Mr Chandra. The court accepted that this assault significantly worsened Mr Kumar's pre-existing degenerative shoulder condition, leading to persistent pain and functional impairment. Regarding the depression and anxiety, the court found that these conditions were substantially contributed to by Mr Kumar's employment, particularly the bullying and assaults by Mr Chandra, and were exacerbated by the assault on 8 November 2013. The court accepted Dr Westmore's opinion over Dr Vickery's, finding that Mr Kumar's employment was a substantial contributing factor to his Major Depressive Disorder.

In light of the findings, the court set aside the decisions of Linfox Australia Pty Ltd and accepted liability for Mr Kumar's right shoulder condition and for his depression and anxiety. It ordered Linfox to pay the costs incurred by Mr Kumar in relation to these matters, as per section 67 of the Safety, Rehabilitation and Compensation Act 1988.

Orders

Orders of the court

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.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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 EMPLOYMENTThe 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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.