Lovell and K & S Freighters Pty Limited (Compensation)

[2022] AATA 2867

Lovell and K & S Freighters Pty Limited (Compensation) [2022] AATA 2867 (2 September 2022)

Division:GENERAL DIVISION

File Number(s):      2019/5215

Re:Johnathan Wayne Lovell

APPLICANT

AndK & S Freighters Pty Limited

RESPONDENT

Decision

Tribunal:Member A Ward

Date:2 September 2022

Place:Adelaide

The decision dated 11 July 2019 which affirms the Primary Determination dated 4 June 2019 which denied liability to pay compensation pursuant to sections 14, 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) is affirmed.

.................[SGND]....................................

Member A Ward

Catchwords

COMPENSATION – Safety, Rehabilitation and Compensation Act 1988 – Whether the Respondent is to pay compensation pursuant to sections 14, 16 and 19 of the SRC Act – Applicant’s injury being a right shoulder injury bursitis – decision under review is affirmed – Witness credit and credibility – corroborative witnesses – proofing witnesses together – evidence of a witness’s behaviour in giving evidence – necessity to cover off every allegation made in reasons

Legislation

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Cases

Manolakis and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 543

Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham [2000] HCA 1

REASONS FOR DECISION

Member A Ward

2 September 2022

INTRODUCTION

1. The Applicant has a claim for his employer, the Respondent, to pay compensation to him pursuant to sections 14, 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act).  It arises from a claim for compensation made on 13 February 2019 for right shoulder injury bursitis.  As will be noted below, the mechanism of injury and date of onset of symptoms are matters that are not clear, requiring the Tribunal to make a finding.   

2. The Applicant had an unhappy relationship with his employer, certainly in the calendar year 2019. The making of the application for compensation occurred at the same time as his services were terminated.

3. The injury was claimed to his right shoulder, arising from his work as a truck driver.

4. The issues to be determined before the Tribunal are quite succinct about whether he suffered a shoulder injury as a consequence of his employment.  The hearing occurred in two separate occasions, four days in March and was adjourned to another two days in May.

5. The matter was listed for hearing a year before. Then the Tribunal was advised it had resolved, but the Applicant terminated the services of his then lawyers and advised the matter was not resolved. However, the hearing date had passed. This has no bearing on the decision in this matter but explains (in part) the long period between lodgement of the dispute and its final determination.

6. For reasons that will be set out below, the Tribunal finds that the Applicant has not demonstrated that he suffered a shoulder injury as a consequence of his employment and the Tribunal affirms the reviewable decision dated 11 July 2019. 

   THE APPLICANT AS A WITNESS

7. The Tribunal is well aware that giving evidence can be a stressful experience. Even making such allowances, it is important to record that the Applicant was an unimpressive witness.  He was aggressive and argumentative.  If he was challenged on matters, he would talk loudly and often point his finger in an aggressive manner.  His tone was often threatening.  This occurred when the Respondent’s counsel was properly putting the Respondent’s case to the Applicant, and his aggressive responses were disproportionate. It occurred despite numerous warnings as to conduct.

8. The Tribunal’s finding with regards to the Applicant’s evidence as set out below is that he gave a version of events to suit his case. The Applicant’s evidence would vary over time as his case did.

9. The Applicant’s case varied over time with regards to what events happened, and when and how. The Applicant drove a prime mover towing a trailer containing chicken feed. Once filled, the trailers would be covered by a tarpaulin. It was operated by an electronic Razor Rollover Power Tarp (Razor Motor) to open and close the tarpaulin. If the motor failed, it could be operated manually.

10. The Applicant had told doctors that he injured his shoulder because he had to reach above his head to manually operate the Razor Motor – but as will be seen, that was not the case.  The Applicant varied the story to suggest that in his particular vehicle, he would have to lean forward to wind the motor.  This is not what he told the doctors at the time he saw them, but something he said for forensic necessity because the employer produced a video demonstrating the manual operation of the Razor Motor. This was on the actual rig that the Applicant used and it did not demonstrate any overhead operation.

11. The Applicant was aggressive when challenged, and the Applicant got up and left the hearing room whilst giving evidence on more than one occasion. Consideration was given to proceeding to determine the case without him being present.[1]

    [1] As occurred in the AAT case of Manolakis and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 543 (21 July 2009) – [19] “In the course of that hearing, the Tribunal was forced to prematurely terminate the proceedings because of Mr Manolakis’ threatening, aggressive and abusive manner and because of his stated position that he would have no regard to any direction from the Tribunal as to how witnesses would be questioned or as to procedure.”

12. With the Respondent’s consent, the Applicant’s counsel was able to talk to him during cross-examination to explain to him the benefit of assisting the Tribunal with his evidence, and to listen and answer the questions. Despite the efforts of Mr Campbell, the Applicant’s poor behaviour continued.  The Applicant would also make deliberate gratuitous comments with regards to other litigation or claims that he was involved in against the Respondent which had no bearing on this case at all. 

13. The Applicant considers that he has been bullied and harassed by the Respondent and its employees and his evidence comes across in part as him trying to demonstrate that. 

14. The Applicant said that he would receive calls from his supervisor at inconvenient times which might have been upsetting.  However, this is not a case of workplace bullying.  The Applicant has specifically restricted his claim to that of suffering a shoulder injury in the course of his employment (and the claimed circumstances as to how that occurred vary).  A call from the supervisor early in the morning or late at night would not have any impact at all on his shoulder injury.

15. For the purpose of these reasons, the Tribunal has mainly ignored the Applicant’s poor behaviour during the hearing.  In some parts, his poor behaviour is relevant.  Where the witnesses have indicated they felt threatened by the Applicant, such behaviour was confirmed by his behaviour in the hearing.  No evidence was called to explain why he was acting in such an aggressive manner, such as whether that was caused by medication or illness.  The behaviour was unacceptable and continued notwithstanding warnings.

16. The Tribunal in reaching this decision, has relied on matters raised by the Applicant and scrutinised them properly and carefully as to whether they were supported by corroborative evidence.

17. The Applicant’s lack of success in this decision is not as a consequence of his behaviour during the hearing.  That has been put to one side so as to ensure there is a proper consideration of the facts and the contemporaneous evidence for the correct decision to be made. 

    THE APPLICANT’S PARTNER

18. The Applicant’s partner Ms Lisa Edwards gave evidence.  Her evidence did corroborate matters but not ones of significance. 

19. However, on crucial points, Ms Edwards gave evidence on matters that she could not have known from her own observations.  When pressed on this, she indicated that she knew certain information from when she and the Applicant were discussing matters with “the QC at the last lawyer’s office”.[2]  Both she and the Applicant considered the Respondent’s witnesses statements and went through their evidence together which became the statements used in the Hearing. They did this in each other’s presence.[3]

    [2] Transcript, page 476.6.

    [3] Transcript, page 476.12.

20. Ms Edwards confirmed that “I was always present when they were talking with John and he was making his statement. I was always in the room.”[4]

    [4]  Transcript, page 476.15.

21. Ms Edwards was also aware of information in the statements of other witnesses before the Tribunal. She was with ‘the first lawyers’ when she said ‘we read through the statements’.[5]

    [5]  Transcript, page 475.

22. Therefore, the Tribunal approaches her evidence with a high level of concern.  Is it genuinely corroborating or is it a prepared narrative?  Her evidence certainly painted employees of the Respondent in a bad light, almost exactly as his did, but on matters that were often irrelevant for the purpose of whether he injured his shoulder during the course of his employment.

23. Because of concerns with her evidence, the reliability of it as corroborative evidence is very much in question. She has often confirmed his evidence as to events, but it is by no means clear whether that was from her own observation or she was retelling a story she had been told.

    CESSATION OF EMPLOYMENT

24. The Applicant had increasing difficulties with his employment. He had problems with a payment of less than his entitlements to wages over the Christmas 2018/19 period. He was being closely managed by his supervisor Mr Denver. Issues were raised as to the Applicant’s performance and behaviour, which are not matters for determination here. Suffice to say, there was a significant worsening of the relationship.

25. The Applicant raised concerns about bullying on 22 January 2019, saying he would “go home mental health if they played games with him” – or words to this effect.[6]

    [6] Exhibit 32, Phil Denver’s Statement.

26. Mr Denver perceived the Applicant threatened him on the 4^th of February 2019 as they were having an altercation. The Applicant then advised Mr Denver that he was ill and would not be attending work that day. He did not see a doctor that day. Mr Denver made a formal complaint about the perceived threat to his superiors by email on 5 February 2019. A decision was made to terminate the Applicant’s employment. The Applicant did not attend the workplace on the 5^th February 2019 as well, He then returned to work on the 6^th February. When he attended work on the 6^th, he was presented with his termination letter.

27. The Applicant then left the work place. He saw Dr Joshi on 7^th February 2019 and complained of right shoulder pain, which was ‘getting worse’. He went back to Dr Joshi again on 8 February 2019.[7] The Applicant returned to his workplace on the 8 February 2019 with a medical certificate. He had two, one by Dr Joshi dated 7 February 2019 referring to medical condition covering in a retrograde way the period 5 February 2019 to 7 February 2019.[8] The second was on a Return to Work SA[9] form. It referred to an examination on 7 February 2019 claiming overuse of shoulder at work which developed on 14 January 2019.[10]

    [7] Exhibit 1, pages 46 to 47.

    [8]  Exhibit 1, page 29.

    [9]  The South Australian State Compensation System.

    [10]  Exhibit 1, page 30.

28. The Applicant’s initial claim dated 13 February 2019 says he first was aware of the right shoulder pain on 14/01/2019 and he reported it to Dr Joshi on that day.[11] Dr Joshi has no record of any attendance on 14/01/19.[12]

    [11]  Exhibit 1, page 33. 34.

    [12]  Exhibit 1, page 46.

29. The Applicant’s claim also states he had not experienced any similar symptoms before 14 January 2019.[13] However, records confirm that he sought GP treatment and was referred off for other treatment and investigation for right shoulder problems in early December 2018.

    [13] Exhibit 1, page 34.

30. No current or former employee of the Respondent confirmed the Applicant reported shoulder pain to them prior to his termination, nor is there any paperwork that would be prepared on the making of such a report before that time.

31. Therefore, in the setting of employment, there was no record of complaint of shoulder pain in connexion with work until after he was terminated.

    BACKGROUND

32. The following background information is relevant and uncontentious. 

33. The Applicant was born on 10 December 1968 and at the time of the commencement of the hearing proper, (15 March 2022) he had been a truckdriver for thirty-three years.  He has worked in transport yards and in the transport sector all his working life.[14]

    [14]  Transcript, page 7.24.

34. He commenced working for the Respondent in the latter half of 2018.

35. The precise time the Applicant commenced working for the Respondent is not factually important for the issue that the Tribunal is called upon to determine.  However, he mentioned a number of times in evidence that he might have undertaken a trial run with Mr Phillip Denver on 28 September 2018 prior to officially starting on 5 October 2018.  The Tribunal sees this as having little relevance to the issue before it.  Whether he was paid for that or not is also not relevant to this determination, although it was clearly important to the Applicant’s sense of grievance against the Respondent.

36. K & S Freighters obtained a contract with Ingham’s to transport chicken feed from Ingham’s depot at Murray Bridge to various poultry farms.  For the purpose of the contract, K & S Transport obtained a fleet of new prime movers and new purpose-built semi-trailers.  The semi-trailers would be loaded with the chicken feed at the Ingham’s plant.  The semi-trailers were covered with the tarpaulin once loaded.  As noted, the tarpaulin had a power motor to open and close the tarpaulin.  The tarpaulins were operated by a push button.  It was important that the feed be kept as hygienic as possible and dry when being transported. 

37. In order to maintain hygiene, the trailers were regularly washed at the depot.  A problem occurred when the regular washing with the various detergents used adversely impacted on the Razor Motor.  If the electronics failed, it would be necessary to fit an Allen key into the Razor Motor to operate it manually.  This would be done by winding the key. 

38. This process was described by various witnesses who gave evidence and there were also two videos demonstrating how the tarpaulins worked under manual operation.[15]  Mr Tim Norton, who gave evidence in the proceedings, was featured in the video winding the tarpaulin.  At all stages, the winding took place below chest height on Mr Norton who gave evidence that he was 5 feet 5 inches[16] tall.  It is of note here that the video showing Mr Norton manually winding the Razor Motor was demonstrated on the same trailer used by the Applicant.[17]  It was agreed that the video was filmed on 16 April 2020.

    [15]  Exhibit 19.

    [16]  165.1 cm

    [17]  Exhibit 33, paragraph 14.

39. Other witnesses gave evidence as to the effect of using the manual operation of the Razor Motor which was consistent with that described by Mr Norton and demonstrated on the video. They also confirmed that the Razor Motors would break down for various reasons, mostly as a result of corrosive washing required to maintain hygiene of the chicken food.

40. Evidence was also given that the set-up of the prime movers and the trailers was identical on the new fleet at the relevant time for the commencement of this work in about October 2018 to the time of the Applicant’s dismissal.

41. Therefore, it was not disputed that the Razor Motors would fail in the time leading up to the termination of the Applicant’s employment and that drivers would have to wind the Razor Motor manually. 

42. Evidence was led as to various manufacturing matters with the Razor Motor as set out in the Manual.[18]

    [18]  Exhibit 1, page 60.

43. The Manual contains reference to the “manual override procedure”, stating that the Razor Power Tarp can be manually operated in the situation “where all the trouble-shooting options are exhausted”.  It refers to using the manual handle to wind the tarp as required.

44. When the tarpaulin is wound manually, the Razor Motor in which the manual handle is inserted does not move significantly upwards.  As noted by Mr Norton, it stayed in the same position, around chest height for him when he demonstrated. 

45. The Manual says that the manual override is only to be used as a last resort.  This is consistent with the notes that it with the notes which state, “It should only be used where all the trouble-shooting options are exhausted”. 

46. The Tribunal does not read that warning that it should be used as a last resort to mean there is something inherently dangerous in using the manual override procedure.  Rather, the Razor Motor should be checked to see there is anything obviously wrong with it, such as a battery to be replaced, before using the manual override. 

47. This was a very busy operation given the demands of the contract on Ingham’s and it would appear that the trucks were used on a continuous basis with one driver driving one shift and then handing over to another driver to do the next shift.  If there were any problems noted with the vehicle either at the commencement of the shift or during the shift, they would be recorded in daily logbook records.

48. Therefore, if any part of the truck was faulty, or it was left in a poor condition or anything at all needed to be dealt with, there would be a contemporaneous record in the daily logbook.

49. There was evidence that the trailers would be emptied once at the farm with a “blower” which the Applicant described as “like a supercharger that pumps air”.  It would pump out the chicken feed into the silo on the farm.[19]

    [19]  Transcript, page 10.

50. The Applicant’s evidence was that he worked out how to use the blower.  Whilst there was some discussion of this, it is not relevant to the injury and there is no evidence that the Applicant hurt his shoulder using the blowing mechanism on the truck. 

51. The tarpaulin was held in place with a pole that ran along the top of it.  These poles were problematic in the early stages when they were sometimes not properly secured and would come forward proud of the tarpaulin.  When that occurred, it could be fixed by reaching up and knocking the pole back into position with a rubber mallet.  This was fixed by re-securing the poles in position by rivets. 

52. The Applicant told Dr Haig that when the Razor Motor failed, he had to use ‘forceful turning of the key with the upper extremities above shoulder height.’[20]

    [20] Exhibit 1, page 219.

53. The Applicant told Dr Sood that in mid-January 2019, the Razor Motor ‘began playing up’ and he had to use the manual lever in a rotary motion ‘above shoulder height level’ and added the loads which were up to 250 kilograms.

54. Both Doctors at that time relied on those histories to link the actions as described with the claimed shoulder injury. The problem is, as noted above, the demonstration shows that did not happen. The use of the Razor Motor manually was not a heavy over shoulder activity. There is no evidence the manual operation had loads of up to 250 kilograms. The Doctors were provided with an incorrect history.

55. The Applicant then described that he meant leaning forward to manipulate the lever. The Tribunal finds this was again a matter of explaining this hole in the evidence in view of the movements demonstrated on the film.

56. The Applicant said that when he had to wind the Razor Motor manually, most of the trucks had chequer plates but his did not have one.  Usually, one would stand on a chequer plate to wind the tarpaulin. 

57. This is a matter of dispute.  The evidence of Mr Denver is that all these vehicles were identical[21] and therefore, they would all have chequer plates. One was missing at one stage, but this was never clearly identified as to when.

    [21]  Exhibit 33, page 8. 

58. The Applicant’s evidence was that his chequer plate must have come off.  If that was the case, it should have been a matter noted on his daily run sheet.

1. He said that the way he had to wind the Razor Motor was to be bending at his waist and reaching forward because he would stand further back from the Razor Motor due to the absence of a chequer plate and he had a “big blower hose”.  All the trucks would have had this.

2. The Applicant did agree that when manually winding the Razor Motor, he would not reach above his head, as in standing erect, but rather he said he would reach forward.[22]

   [22]  Transcript, page 25.5. 

3. On further questioning, the Applicant said that when he was manually using the Razor Motor, he would be standing in front of the Razor Motor and reaching forward to operate it and that his arms would be at about stomach level.  The Applicant agreed that was what would normally happen. The manual operation could only occur if somebody was standing immediately in front of the Razor Motor. Mr Denver’s evidence was that it was part of the driver’s job to stand on the back of the prime mover[23] - presumably as circumstances dictated.

   [23]  Transcript, Mr Denver 26 May 22.

4. The Applicant said that when he would wind the Razor Motor manually, it would go up as the tarpaulin moved across the top of the trailer.[24]  That is not consistent with the video demonstration. The Tribunal finds that the movement described by him did not occur. Rather, it was something he said to support a claim of overhead work in the operation of the Razor Motor.

   [24]  Transcript, page 30. 

5. The Applicant’s evidence was that it was sometime in January 2019 that the Razor Motor first failed and he found the key to undertake the manual operation.[25]  If that is so, he would not have been affected by the winding of the Razor Motor in 2018.

   [25]  Transcript, page 31.

6. The Applicant’s evidence that the trailer in the video was different to his[26] is not accepted in that the other evidence before the Tribunal is that the first seven trucks (which included the Applicant’s truck) were all identical.[27]

   [26]  Transcript, page 41. 

   [27]  Transcript, Mr Denver 26 May 22.

7. The Applicant’s evidence was that he told Phil Denver about the pole coming out.  He did not make a written report about it.[28]  He said that this occurred “hundreds and hundreds of times” and that it was ‘killing’ his shoulder. There is no evidence to support any contemporaneous complaint of shoulder injury hitting the pole prior to his termination.  Further, there is no evidence this occurred “hundreds and hundreds of times” to support the Applicant’s contention. It might have occurred, but the issue was rectified quite simply by riveting the pole in position on the tarpaulin.

   [28]  Transcript, page 44.

8. The Applicant did not mention hurting his shoulder when hitting a pole with a mallet to Dr Haig who examined him for this claim.

9. The Applicant was asked if he reported pain from hitting the pole with a mallet to his doctor and he said, “Yes, I did” and that he reported this to the doctor at the time it was happening.[29]

   [29]  Transcript, page 45. 

10. The Applicant then corrected his evidence saying that the did not specifically say to the doctor that he hurt his arm hitting the pole with the rubber mallet.  He said he told the doctor that he hurt his shoulder at work.[30]

    [30]  Transcript, page 45. 

11. When asked when he told that to the doctor, his answer was:

    “That would be – I think I mentioned it – I’m going to – to be honest, I think I mentioned it in December, but it was 14^th January, I think, the first time I – I went and seen – mentioned it to him and spoke about it.”[31]

    [31] Transcript, page 45.

12. He accepted that his evidence was that the problem first started in January and then got worse on 14 January.[32]

    [32]  Transcript, page 45.

13. There is no evidence of him reporting this injury to a doctor on 14^th January 2019.

14. The Tribunal finds that the Applicant has not proven that he used his arms in an overhead manner to wind the tarpaulin, on occasion when that was necessary, nor that he caused injury to his should hitting the pole with a mallet.

    PRIOR RIGHT SHOULDER INJURY

15. On or about 9 November 2018, the Applicant had an accident in his home where part of a deck in the property broke and his foot went through, causing a jolting to his lower back.  He reported this to his usual general practitioner on 14 November 2018 who noted, “Right lower back pain after had a fall five days ago”.[33] 

    [33]  Transcript, page 56.

16. The Applicant was referred off for x-rays and given a medical certificate (which he said he never used) for some time off work.  He went back to see his general practitioner on 5 December 2018 with a history of ongoing pain in his right leg and the lower back pain worsening.

17. The 5 December notes then record “right shoulder pain + since he had a fall”.  On the usual reading of that, it would be that chronologically he was mindful of right shoulder pain.  The Tribunal interprets the plus sign as meaning an increase in the pain.[34] This was experienced “since he had a fall”. 

    [34] As per the evidence of Dr Haig – ‘a lot of pain’.

18. It may be that he jolted himself when his foot went through the floor which caused a nasty cut to his leg.  Clearly, he injured his lower back.  There is medical evidence to support that he may well have injured his shoulder in the fall.  In any event, he referred to shoulder pain on 5 December. 

19. The Applicant went back to his GP to confirm that the note did not actually say that he hurt his right shoulder in the fall.  The notes do not say that but they certainly demonstrate a complaint of right shoulder pain was made on 5 December 2018. 

20. Dr Haig gave evidence that from his experience as an orthopaedic surgeon jolting as the Applicant suffered in the fall could affect other parts of the body.

21. The thrust of the Applicant’s evidence is that he said to Dr Joshi on the 5 December 2018 visit that there were some parts of him that were “a bit stiff” “while I was doing the work”.  When asked whether he had a clear memory of telling the doctor that he hurt his shoulder whilst he was doing work, his initial answer was “No, I don’t”, but did not give evidence of specifically injuring the shoulder as a consequence of work as distinct from “probably just general soreness”.  There is certainly no reference to him injuring his shoulder because he had to knock the pole back into position with the mallet nor any other event from work or work practice. The Razor Motor issue did not arise until 2019, on the Applicant’s evidence.

22. The general practitioner, Dr Joshi, was not called so the Tribunal has to speculate on this very crucial evidence.

23. However, Dr Joshi’s notes have more information. On 7 December 2018, Dr Joshi referred the Applicant to Laurence Field psychologist and recorded a history of:

    “4 weeks ago he had a fall causing injury to his back and shoulder. This pain has made his mood worse”[35].

    [35] Summonsed Records SR1, page 30.

24. On 5 December 2018, Dr Joshi referred the Applicant for MRI and an ultrasound with this history:

    “Fall from 2 feet height, back pain with radiculopathy getting worse, shoulder pain since fall.” [36]

    [36]  Summonsed Records SR1, page 14, Exhibit 7.

25. In addition to Dr Joshi’s notes, this contemporaneous information confirms a finding that the Applicant hurt his shoulder as a result of that fall. However, if there is any dispute as to cause, there is no doubt that the Applicant complained of problems with his shoulder in December that had no reference to work being the cause of those problems.

26. For reasons which will be discussed above, the Applicant is not accepted as a reliable witness.  He would change his evidence as the proceedings went on in an attempt to fit the narrative he wanted to present.  Therefore, any evidence of his that is not corroborated has to be assessed very carefully.

27. On the occasion of that visit, Dr Joshi noted he prescribed medication, namely Ibuprofen, in connection with the shoulder pain “since had a fall”. The Applicant said he did not take that medication which is frankly inconsistent with the severity of the complaint he was making in his evidence from the hammering in of the broken pole mentioned above. 

28. The Applicant said: “Truck drivers … don’t take medication”.  However, his evidence was that he would take stimulants.  He indicated that it was not medication but rather an illegal drug that they were “all taking” to stay awake.[37]

    [37]  Transcript, page 58.

29. The Applicant went to Dr Joshi in August 2020 to have him correct the history (as the Applicant considered it should be).  This was because the Applicant was at a telephone interlocutory hearing when he heard the Respondent’s representative say that he injured his shoulder from a fall on the deck and not at work.  The Applicant wanted to have his doctor clarify the notes of that incident.[38]  The doctor then noted that the Applicant claimed to him when he saw him in August 2020 that his right shoulder pain mentioned on 5 December 2018 was not related to the fall but that “in fact it was from his work where he had to reach above his shoulder and work repetitively”. 

    [38]  Transcript, page 59.

30. This is not regarded as contemporaneous history.  This is regarded as the Applicant going to see the doctor and making him write down what the Applicant told him on that occasion for what the Applicant perceived as forensic necessity given what he had heard during an interlocutory process.

31. Dr Joshi was not called to give evidence.  The doctor has not reported that what he said was wrong at the time, or that he erred in what he said.  All he has recorded in his follow-up correspondence is what the Applicant told him the case was when he saw him on 26 August 2020.

32. As a matter of procedural fairness, concerns about the manner of his giving evidence were raised with the Applicant on the first day of the hearing.[39]

    [39]  Transcript, page 79. 

33. Rather than complaining of his shoulder injury arising over the course of his employment in 2018, the Applicant made quite a different claim for worker’s compensation on 13 February 2019.  His claim referred to a diagnosed condition of “right shoulder bursitis” first noticed by him on 14 January 2019 at 4:00pm. 

34. It is clear from the GP notes that he had a right shoulder injury which was significant enough for him to seek medical assistance on 4 December 2018. There is nothing to link the shoulder symptoms noted in December 2018 with his employment.[40]

    [40]  Exhibit 1, page 33.

35. In the claim form referred to above, it noted that the Applicant first sought medical attention on 14^th January 2019 from Dr Joshi. 

36. However, the Applicant did not have an appointment with his doctor on 14 January 2019, and this was confirmed by Dr Joshi’s rooms on 22 February 2019.[41]

    [41]  Exhibit 1, page 46.

37. The Applicant saw Dr Joshi on 7 February 2019 when he had already been terminated.  The doctor recorded that “right shoulder is getting worse” but that is the first reference to right shoulder following the December 2018 consultation.  He also referred to “bullying by manager at work”.  This may have referred to the termination of his employment.

38. The Applicant then returned to Dr Joshi on 8 February 2019 when the doctor noted that his right shoulder was getting worse for the 3 weeks and that he was waiting for treatment and “wants to have WorkCover”.  This - chronologically at the very least – is that he wanted to bring a worker’s compensation claim after he was terminated from his employment with the Respondent. 

    FURTHER CONSIDERATIONS ON EVIDENCE

39. A lot of information was put forward in this matter that is not relevant in view of the Tribunal’s Findings and will not be dealt with in any detail in this decision.  This includes such as when the Applicant started work, problems that he had with regards to the employment he has had since February 2019 and also medical conditions that affected him after that time.  They might have been relevant in the event of a finding in his favour on causation of injury.  That is not the case.  Similarly, aspects relating to payment of his wages which were doubtless important to him at that time are not relevant to these Findings. 

40. In this regard, the Tribunal notes the comments of Justice McHugh in the matter of Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham[42] that it is generally not essential for the Tribunal or other primary decision-makers to refer to every piece of evidence or contention advanced by a claimant, or in this case by the Respondent as well.  The parties did give detailed submissions, the last being received 2 August 2022.  They were of assistance to the Tribunal and have been considered thoroughly during the course of preparation of these Reasons. 

    [42]  Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham [2000] HCA 1 at 65-67.

41. It is important to the Tribunal’s consideration that there was a finding that no complaint was made of a shoulder injury in connexion with his work prior to his termination.  However, the Applicant did take time off when he injured himself in the face.  Therefore, he was aware of an ability to take time off with respect to an injury and also the requirement to report it. 

42. Whilst the Applicant is critical of the video footage, the Tribunal accepts the evidence of the people shown in that film and others who have given evidence as to the mechanism involved in winding the tarpaulin. 

43. Hitting the pole with the mallet is not something the Applicant initially relied on when he was reporting this matter to doctors for the purpose of his claim but seems to have been something that has been considered subsequently. 

44. The Tribunal does not accept that the Applicant told Dr Joshi that he was experiencing shoulder pain as a result of work during the 5 December 2018 consultation. 

45. Dr Haig initially supported the Applicant but on receipt of further information, changed his opinion in light of the materials referred to above, such as the correct history of the pre-incident shoulder problem.  Without being critical of Dr Sood, as his opinions were based on a version of events that was not accepted by the Tribunal, they fall away.

46. The Applicant told Dr Sood that he was unable to hold on to jobs following the termination of his employment because of shoulder problems. That is not consistent with information before the Tribunal, which show other reasons why his jobs after K & S Freighters were terminated. However, that is not relevant to causation, but is relevant to credit.

47. The Tribunal does not accept a submission from the Respondent that the Applicant’s behaviour and presentation was consistent with addiction and drug use.  His behaviour and presentation in the Hearing were challenging as has been detailed above, but there is no basis to find that it arises out of alleged drug abuse.  It may arise out of a conviction that he has been wronged by the Respondent and this has motivated his attacks upon it.  However, this was not a claim for bullying or workplace harassment or inappropriate behaviour.

    DECISION

48. The decision dated 11 July 2019 which affirms the primary determination dated 4 June 2019 which denied liability to pay compensation pursuant to sections 14, 16 and 19 of the SRC Act is affirmed.

I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for the decision herein of Member A Ward

..................[SGND].................................

Associate

Dated: 2 September 2022

Dates of hearing: 

15, 16, 17, 18 March and 26 and 27 May 2022

Last submissions received on 2 August 2022

      Advocate for the Applicant: 

Tim Campbell, Campbell Law

      Advocate for the Respondent:

Ann McMahon, Greens List Barristers