Noori v Aussin Auto Parts & Car Removals Pty Ltd
[2022] VMC 32
•8 November 2022
IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE
WORKCOVER Division
Case No. M10385916
| NORULLAH NOORI | Plaintiff |
| v | |
| AUSSIN AUTO PARTS & CAR REMOVALS PTY LTD | Defendant |
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MaGISTRATE: | M A HOARE |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13-15, 17, 20 December 2021, 22 August 2022 |
DATE OF DECISION: | 8 November 2022 |
CASE MAY BE CITED AS: | Noori v Aussin Auto Parts & Car Removals Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2022] VMC 32 |
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WORKERS COMPENSATION – Rejected claims – Injury to lumbar and cervical spine and secondary psychological injury – Car dismantler/scrap-metal worker performing manual labour over four to five month period – Whether injury arising out of or in course of employment - Whether employment a significant contributing factor - Credit of plaintiff – Workplace Injury Rehabilitation and Compensation Act 2013, ss 3(1), 39(1), 40(3), Clause 25 of Sched 1.
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APPEARANCES: | COUNSEL | SOLICITORS |
| For the Plaintiff | Mr N Horner | Zaparas Lawyers |
| For the Defendant | Ms M Cameron | T G Law |
HER HONOUR:
Introduction and Overview
Mr Noori, the plaintiff, was employed by Aussin Auto Parts & Car Removals Pty Ltd (Aussin), the defendant, as a car dismantler/scrap metal worker for about four or five months from 13 January 2020.
At hearing, Mr Noori’s credit was squarely in issue. That was predominantly because it was contended he made no complaint of injury during the period of his employment and due to the circumstances surrounding the end of his employment.
Mr Noori has claimed compensation under the Workplace Injury Rehabilitation and Compensation Act 2013 (the Act) for injuries to the back and neck (and psychological sequelae) sustained throughout the course of or arising out of employment with Aussin.
The initial claim for a back injury (dated 13 August 2020) was lodged after finishing up with Aussin, which date was the subject of dispute. The circumstances relied upon in the claim form were ‘manual handling including repetitive heavy lifting and twisting in working to dismantle vehicles in a scrap metal yard’ (the first claim).
Some eight months after the first claim, Mr Noori lodged on Aussin a further claim dated 29 April 2021 for ‘back and neck’ and referred to the same circumstances (the second claim).
Both claims were rejected by the WorkCover agent essentially on the grounds that no injury was sustained by Mr Noori in the course of or arising out of employment with Aussin. Further, the rejection was on the grounds that employment was not a significant contributing factor to the claimed injury. That was by notices dated 18 September 2020 and 27 May 2021.
Mr Noori gave oral evidence and called two other lay witnesses, Mr Kazemi, a friend and acquaintance, and Mr Haqbeen, formerly a co-worker and employee of Aussin. For the defendant, Mr Aussin, the director, gave evidence as did Mr Ziaei, a supervisor.
All medical evidence was tendered into evidence by consent.
Matters Agreed or Not in Dispute
In this case, it is helpful to commence by setting out the additional matters about which there was either no dispute between the parties or were apparent from documents tendered into evidence by consent (such as contemporaneous clinical records). To the extent there was a dispute, that is noted.
It was undisputed that Mr Noori had a history of episodic low back trouble prior to commencing with Aussin. Indeed, Mr Noori’s Counsel opened the case on that basis (although it was denied by Mr Noori at one point in evidence).
From 2014, Mr Noori, who is now 37 years of age, has lived in Dandenong. He arrived in Melbourne that year as a refugee. His first language was Dari and his level of education was not above primary school level. He had done unskilled work all his life. His family remained overseas and he supported them financially.
From his arrival, Mr Noori was a regular patient of the Dandenong Super Clinic (the clinic). He attended various GPs there (some Dari speakers and some not) for diverse medical issues including: kidney or urological problems and blood pressure management.
On 2 November 2014, there was a presentation for low back pain with referred pain into the lower limbs.
Over the course of 2015 and 2016, Mr Noori was counselled by GPs regarding mental health issues relating to his asylum seeker status and awaiting a work visa. He was not referred to a psychologist.
In 2015, there were attendances at the clinic for physical complaints including: an attendance in March for left shoulder and chest pain; and an attendance in April for ‘two months loin pain’ apparently connected to the kidney issues.
In late 2015, Mr Noori attended the clinic after a fall from a ladder (the 2015 fall). X-rays were taken dated 8 October 2015 of his right foot and of his cervical spine.
In around 2016, Mr Noori obtained an ABN although he was not granted a permit to work until 2018.
In 2017, on various dates, Mr Noori attended the clinic regarding low back pain. For example, on 20 September 2017, Mr Noori attended Dr Razaghi and complained of ‘chronic low back pain for few months now got worse’ with pain radiating down the left leg.
A CT scan of the lumbar spine of 2 October 2017 demonstrated disc bulges at L4/5 and L5/S1.
The last recorded complaint at the clinic of low back pain (prior to employment with Aussin) occurred on 21 November 2017.
In mid-2018, Mr Noori, who was then partially living in Bendigo, did a stint of tiling work for a limited period.
From around June 2018 until around the end of 2019, Mr Noori was employed full-time in Bendigo doing scrap-metal work with Omega Metal Recycling (Omega). He was an employee of Omega although worked under his own ABN. That work apparently ceased when the owner/director of Omega departed Australia.
From 13 January 2020, Mr Noori, who had resumed living in Melbourne, was employed by Aussin full-time to perform labour involved the dismantling of cars and removing of specific parts for re-sale.
Aussin, a business established in 2016 by Mr Aussin, was a scrap metal and automotive spare parts dealership.
Besides Mr Noori, generally two other employees did the work of dismantling cars.
The process involved removal of parts and components from the car body in a certain order. As for the usual process, batteries were removed first for safety reasons and taken out manually. Parts were usually removed in a certain order and moved to designated areas.
Batteries were the heaviest items and varied in weight depending on the vehicle size. Wheels and tyres were removed using a rattle gun. The fuel tank (which were usually but not always empty) was loosened and pipes and wires were cut before it would be lifted out using a forklift. The engine and suspension were lifted out as a single item using the forklift.
Two upright trolleys and a flat-bed trolley were available to the car dismantlers. There were two forklifts available for bulky items such as engines, fuel-tanks and dashboards and so on.
On 9 March 2020, Mr Noori saw a GP at the clinic complaining of three days of lower limb pain and muscle spasms. There was no history given about his work. The GP recorded ‘no trauma’ and ‘no pain in back’.
In late May 2020, Aussin needed to suspend trade temporarily (the closure period). That was due to roof works including asbestos removal being undertaken at the premises on which Aussin traded (the roof works).
According to a photograph tendered into evidence, a sign was erected at the front of Aussin’s trading premises which advised the public that the business ‘would be closed from 30 May 2020 to 29 June 2020 due to roof replacement works’. Ultimately, the closure period was extended to about 6 July 2020 due to the roof works taking longer to complete.
Before the roof works could begin, Aussin needed to clean up the site and clear out the large warehouse to allow for scaffolding to be erected. Aussin employees including Mr Noori did this work under the direction of Mr Aussin and Mr Ziaei.
During the closure period, Aussin employees, including Mr Noori, continued to be paid wages.
In late May 2020, Mr Aussin contacted employees including Mr Noori and advised of the extension of the closure period for another week or so and of their expected return to work in early July 2020.
Mr Noori did not return to work for Aussin following the closure period nor, ultimately, at all.
On 28 June 2020, Mr Noori sent text messages to both Mr Aussin and Mr Ziaei advising that he was ‘in Bendigo quarantine and really sick. Unable to work for few weeks … Unable to answer sorry’.
On 25 July 2020, Mr Noori saw Dr Razaghi at the clinic complaining of low back pain radiating down the legs with numbness. There was no history given about work.
On 3 August 2020, a CT lumbar spine scan was arranged which demonstrated an L4/5 canal stenosis secondary to a large central disc protrusion compressing the thecal sac.
On 7 August 2020, Mr Noori and Mr Aussin had a conversation during which Mr Noori informed Mr Aussin he had seen his GP about a work injury and of not being able to work. It was a matter of dispute whether Mr Aussin referred only to back pain (as Mr Aussin contended) or neck pain also (as Mr Noori contended).
On 10 August 2020 and from that time, Mr Noori saw Dr Hill at the clinic having been transferred to his care by Dr Razaghi who did not treat WorkCover patients. Mr Noori complained of a two month history of back and leg pain due to an alleged work-related injury.
He then presented on 2 September 2020 with neck and left arm pain.
In March 2021, at which time he still taking pain medication and had not resumed work, Mr Noori was involved in a motor vehicle accident (the motor vehicle accident). He was an in-patient at Geelong Hospital for about three weeks. Mr Noori has an accepted claim with the Transport Accident Commission (TAC) which covered medical and like expenses but not loss of earnings benefits.
Mr Noori’s evidence
Mr Noori was cross-examined about the clinical note relating to the 2015 fall. Dr Razaghi recorded that he ‘allegedly fell from 1.5-2/m while working injured his neck and R foot’. Mr Noori agreed he had a fall, but denied it was while working. He also denied any neck injury from this fall, only his foot, saying the clinical note was a mistake by the doctor. His whole body was under stress and he had pain in his muscles.
At a later point in cross-examination, Mr Noori did not dispute that he made the complaints but did not have a specific recall of them.
Under cross-examination, Mr Noori agreed he had a past history of mental health issues and also back pain. The back pain was both before coming to Australia and since his arrival between 2014 and late 2017.
As for neck pain, under cross-examination, Mr Noori denied any neck pain over the same period.
In cross-examination, Mr Noori denied having worked in Australia before his permit was granted. References in the GP clinical notes that suggested otherwise were errors or misunderstandings by the doctor.
The reason for Mr Noori ceasing the tiling work in 2018 which was after only about a week was because he disliked it. Under cross-examination, Mr Noori denied that the real reason he ceased the tiling work was because it was too heavy. As for the clinical note of 10 June 2018 which recorded ‘aches and pains especially in winter and due to hard demanding job as tiler’, if the work was heavy you felt pain in the muscles of the body generally.
Duties with Omega were similar to those in the job for Aussin although the conditions were different and the boss at Omega did not push the workers.
By comparison, the job with Aussin was heavier, the workers were under constant pressure regarding the pace of work, hours were longer and there were less breaks.
Under cross-examination, Mr Noori denied aches and pains including back pain while working for Omega.
Work with Aussin
The usual hours were from 7:00 am to 5:00 pm with two breaks. In cross-examination, Mr Noori denied the work hours were usually only till 3:00 pm.
As for the number of cars Mr Noori would dismantle in a day, the minimum was eight cars and some days ten or more. Mr Aussin and Mr Ziaei denied it was possible to do that many cars per day.
Regarding the nature of the work, Mr Noori would work on dismantling a car individually. He would call for help if an item was impossible for him to remove or carry on his own. That was especially with items on larger vehicles like vans or four-wheel drives. Aspects of the task of removing parts required pulling items off forcefully, twisting his body and having to bend up and down constantly.
Batteries which weighed between ten and fifteen or more kilograms had to be manually carried and stacked. Wheels had to be carried rather than rolled away from the car body. That was because they were always rushed and there was no space in the car dismantling area. Doors, which could weigh 30 to 50 kilograms, were removed by hand using a rattle-gun or screw-driver and were carried about 7 metres to a specified area. Fuel-tanks were removed first and carried manually 6-7 metres. The muffler and exhaust systems were removed in two pieces.
Onset of symptoms
When Mr Noori started with Aussin, his back was okay but over time he felt changes in his body and would come home from work with pain and tiredness in his body. The pain was in his low back, knees, neck and hand.
Mr Noori never reported these issues to Mr Aussin because he worried he would be told not to come back to work.
Mr Aussin was a Dari speaker and there were no issues communicating with him.
After the attendance on the GP in March 2020, he continued to have low back pain and pain into his legs, but he kept working without complaint as he did not want to lose his job.
Under cross-examination regarding the onset of back pain, Mr Noori said he did not have back pain when he started with Aussin, but after two or three months he did because the was work heavy and hard.
Also, under cross-examination, he said he complained to Dr Razaghi many times about pain all over his body including his back and neck whilst working at Aussin and had reported to her that the pain was work-related.
Cessation of work for Aussin
On 20 May 2020, Aussin closed to customers for the car disassembly work. However, during the closure period, Mr Noori was required to keep working for at least another two weeks and into the month of June. That was to carry out the clearing and cleaning work before the roof works started. On some of these days, he was given a lift to the premises by Mr Ziaei. Mr Ziaei denied this.
In the course of examination in chief, a short video was shown to the Court that Mr Noori had taken using his phone. This depicted him at the warehouse apparently having been completely cleared out. The video was taken in June 2020. He knew this because it was saved on his Snapchat camera-roll for the month of June 2020.
Mr Noori was hopeful that having a break during the closure period would enable him time for recovery from his symptoms and pain, but instead things got worse.
During June and July 2020, whilst on the break from Aussin, Mr Noori assisted a friend Mr Kazemi who was starting up his own scrap metal business. This involved going with Mr Kazemi to assess scrap metal at different sites. There was no heavy work involved and, under cross-examination, he denied being paid or receiving cash for giving this assistance.
Under cross-examination, Mr Noori was shown a document headed ‘Employment Contract’ dated 13 January 2020 with signatures next to his name and that of Fred Aussin. Mr Noori denied that he signed the employment contract saying the signature next to his name was not his at all. Mr Noori denied that Mr Aussin had taken him through the document explaining it in Dari when he started with Aussin.
Also under cross-examination, Mr Noori was shown a Victorian drivers licence with his signature on it which he agreed was his signature, but was different to the signature on the employment contract and claim forms.
Under cross-examination, Mr Noori denied being aware of a clause in the employment contract which provided that employees may not engage with another employer in competition with Aussin. He was unaware of the clause requiring disclosure to Aussin of any other employment relationships entered into by the employee.
Mr Noori called Mr Aussin at some stage and said he could not return to work and that he was not well. By this he meant, he had low back pain and neck pain and could not work.
Mr Noori had told Mr Aussin previously in June or July of 2020 that he had changes to his body and he was not sure if it was COVID-19 or something else and Mr Aussin had told him to come back to work and not to worry about small things.
Under cross-examination, Mr Noori denied that the first time he reported any injury to Mr Aussin was in a lengthy phone call on 7 August 2020.
In cross-examination, Mr Noori agreed he was aware that injuries needed to be reported and he did this by texting or calling Mr Aussin.
At no time had Mr Aussin informed Mr Noori that his employment with Aussin was terminated.
Subsequent circumstances
By October 2020, Mr Noori was feeling completely overwhelmed with low back pain, neck pain and felt quite stressed. He had gained considerable weight. From December 2020, he was prescribed patches to manage the pain.
Mr Noori had not worked at all since he ceased with Aussin other than the period of assisting Mr Kazemi.
Following the motor vehicle accident, his pain settled to the same level as before.
Mr Noori has continued to feel unwell emotionally because of his neck and back pain, as well as being separated from his family and unable to support them financially. His sleep is poor.
Currently, Mr Noori experiences neck pain radiating into his left arm and back pain with referred pain into both legs. He has numbness in his left leg. Neck pain is worse with movement of the neck. Back pain is aggravated by bending or walking for more than between one and five minutes or sitting for longer than ten minutes. Medications included: Lyrica, Duloxetine, Palexia, Endep 25 mgs, Mobic and Norspan patches.
Mr Kazemi’s evidence
Mr Javad Kazemi first met Mr Noori in around 2016 and considered him a friend.
In 2020, Mr Kazemi was attempting to start a scrap metal business under the name ‘J & N Scrap Metal’.
Under cross-examination, Mr Kazemi denied that the initials ‘J & N’ referred to himself and Mr Noori, rather that referred to himself and his wife, Nilofar. The business did not really start until December 2020 and mid-2020 he was just trying to learn the business and get experience.
Mr Kazemi had asked for Mr Noori’s help because of his experience in scrap metal work. He assisted him in mid-2020 over a few weeks although not continuously. Mr Kazemi did not pay Mr Noori for the assistance he provided and Mr Noori was not part of the running of the business. Mr Noori helped him emotionally and mentally. As for how long Mr Noori had provided assistance, that was once Mr Kazemi had learned all he needed to learn.
Once or twice, Mr Noori was with him while he was purchasing scrap metal which would then need to be loaded into Mr Kazemi’s vehicle. Mr Noori would assist with the small pieces of scrap-metal. This is because it was culturally inappropriate to stand by and watch somebody work without helping. After doing that, Mr Noori would get in the car and complain about having pain in his neck or leg.
At a later point, under cross-examination, Mr Kazemi said that Mr Noori would get in the car and complain about pain in his back or leg. As for whether he complained of back and leg, not neck, Mr Kazemi could not recall.
Mr Kazemi denied under cross-examination having paid Mr Noori either wages or cash amounts in 2020 as the business was earning no income.
Mr Kazemi had not held insurance for work injuries at the time because the business had not really begun in mid-2020 when Mr Noori was helping out.
Mr Ziaei’s evidence
Mr Ziaei, currently a supervisor with Aussin, had started working for Mr Aussin since 2018. In his first twelve months, he worked as a vehicle dismantler although even as a supervisor he still did some ‘hands on’ work.
Mr Ziaei had supervised Mr Noori and found him to be a good worker who was punctual and reliable.
The car dismantlers were not pushed or under pressure to do as many cars as possible. There were no specific expectations although generally a dismantler would do four to five cars in a day but never as many as eight or ten.
When he was a car dismantler himself, he did four or five cars a day and never more than that. At a later point, in cross-examination, Mr Ziaei said he might take one and half to two hours to get a car completed. He conceded that a worker doing dismantling all the time would possibly complete a car more quickly than he would.
During the COVID-19 lockdowns, the number of incoming cars declined. However, there were no reliable business records, as far as he was aware, of the volume of cars handled.
As for the removal of doors, doors were generally handled by two dismantlers together to prevent damage in handling as they were often sold on as parts. Under cross-examination, Mr Ziaei conceded on rare occasions he would handle doors that were light and small by himself. By that, he meant doors of 10 to 12 kilograms. Wheels were never carried but were rolled to another area because it was easier. Parts such as mirrors, bumper bars etc would be removed if salvageable and/or required by buyers.
As for the weight of batteries, under cross-examination, Mr Ziaei conceded some batteries were more than 15 kilograms.
Dismantlers were instructed to ask for help if they needed help. Mr Ziaei agreed, under cross-examination, that he recalled Mr Noori asking for help sometimes.
During the closure period, no work was done on the premises at all. Mr Ziaei and another worker came onto the premises at Mr Aussin’s request in order to move vehicles around outside the warehouse. Mr Ziaei never saw Mr Noori there at all during the closure period.
As for Mr Noori’s video showing the empty warehouse, Mr Ziaei disagreed the video would have been taken in June 2020 as nobody could go onsite for safety reasons.
As for whether Mr Ziaei had driven Mr Noori to work at the premises during the closure period, or at all, Mr Ziaei had no recollection of this.
Mr Aussin’s evidence
Mr Aussin, the owner/director of Aussin, had employed Mr Noori because he wanted someone experienced and professional in car-dismantling. Mr Noori had seemed a nice person and had applied through a mechanic friend, Nabi. Mr Aussin had been satisfied with the quality of Mr Noori’s work when he worked for him.
Mr Noori had signed the employment contract after Mr Aussin went over it in the Dari language. That was because Mr Noori could not read or write in English. Similarly, Mr Aussin had gone over the safety induction checklist with him in Dari.
Mr Noori’s hours were 7:00 am to 3:00 pm with three breaks including lunch. Mr Noori was ‘kind of’ full time. As the business was not very stable at the time, the employment contracts were normally for 3 to 6 months. Under cross-examination, Mr Aussin conceded the contract document did not reflect that the contract was only for a limited period. That was something that changed later on.
When Mr Noori had commenced, one of the car dismantlers was overseas so there were only two including Mr Noori.
As for cars per day, Mr Noori would have dismantled four to five, maybe six, cars a day but not eight or more.
There was some downturn in business during the COVID-19 lockdowns because of reduced cars on the road having collisions. However, under cross examination, Mr Aussin agreed that was not to any real extent until mid-2020.
As for the process of dismantling the car, Mr Aussin estimated that took generally between one and two hours, however it was unpredictable. Many times, bolts could be very tight and take hours to remove using airguns and sometimes spanners.
In cross-examination, Mr Aussin said batteries could be heavy, for example, 4WD vehicle batteries could be around 22 kilograms.
All workers including Mr Noori were given instructions about safe manual handling and asking for help if needed.
Under cross-examination, Mr Aussin said he could not deny the work performed by the car dismantlers was heavy. Batteries were heavy, doors and door panels were heavy, as were bonnets and boot-lids. However, the workers were experienced and knew where the bolts were located and when to cut the wires.
Prior to the closure period, the workers were utilised to clear and clean up the site prior to the roofing works. They had used time-cards for the clean-up work.
Mr Noori’s last day of work was on 22 May 2020. Mr Aussin knew this because he had gone over his records and found the last time-card for Mr Noori was for 22 May 2020.
Under cross-examination, Mr Aussin was questioned as to why he would have retained Mr Noori’s time-card for that date. The reason he kept that one was because, after Mr Noori’s call on 7 August 2020 reporting his injury, he knew it would be important to keep it. After that last time-card of 22 May 2022, the business was closed.
After the closure period, Mr Aussin had gone on the site himself on a few occasions, as had Mr Ziaei, to move cars. Mr Noori did not go on site after the closure.
As for Mr Noori’s video of the empty warehouse, the video could not have been filmed in June 2020 because there was restricted entry to the warehouse from 30 May 2020 onwards for safety reasons.
At no time while Mr Noori worked for Aussin had he complained of back or neck pain nor any other pain.
When Mr Aussin could not get hold of Mr Noori about coming back to work, he contacted the mutual friend Nabi who told Mr Aussin he had seen Mr Noori collecting scrap metal with a friend in Melbourne. Then another worker saw Mr Noori collecting scrap metal from a workshop in Cheltenham. At this stage Mr Noori was still being paid by Aussin the fortnightly government Jobkeeper allowance plus a top up payment.
On 22 July 2020 Mr Aussin called Mr Noori who said he still had a headache.
Mr Aussin then had no option but to terminate his employment which he did around 22 July 2020 by stopping his pay. That was after Mr Noori said he would come to work the next day, but never showed up. He also decided to terminate Mr Noori’s employment because of him being seen collecting scrap metal. Also, Mr Aussin believed Mr Noori had lied about being in Bendigo and having COVID-19.
Under cross-examination Mr Aussin agreed it was a mistake not to notify Mr Noori of his termination in writing, but he had no choice as Mr Noori did not show up and would not take his calls.
The first Mr Aussin heard about back pain was on 7 August 2020 when Mr Noori called and said he has serious back pain and had seen his GP the day before. Mr Noori was also asking about his pay but Mr Aussin told him he had not been showing up. There was no mention of leg pain or neck pain. Mr Aussin told Mr Noori his employment was terminated.
Mr Haqbeen’s evidence
Mr Haqbeen, a mechanic and panel beater, had worked for Aussin between August 2018 and 28 May 2019. His role was divided between reception and customer sales of automotive parts and helping identify and actually remove parts from cars as required.Mr Haqbeen had resigned in order to start up his own business. This was around the time of the closure period.
Mr Haqbeen first met Mr Noori when he commenced with Aussin. Mr Noori was very hard working and his job was very hard.
They would speak with each every day as co-workers. There were many times when Mr Haqbeen asked Mr Noori directly to remove specific parts from cars as required by customers. Mr Haqbeen also removed some parts himself.
As for his proximity to Mr Noori, under cross-examination, he said sometimes he was very close and sometimes far away if he was in reception or outside and also left the premises altogether at times to deliver parts to customers.
There were times when Mr Noori had not been happy because he felt he always got the hard jobs.
Some jobs were harder than others depending upon the condition of the car. Cars could be very old and very rusty which made parts removal more challenging. There were tools available such as air guns but with cars in very bad condition it was a struggle to remove parts.
The number of cars dismantled per day by each car dismantler would be five or six or seven cars a day and involved the process of removing the parts in a certain order.
There were no trolleys available although there were forklifts. Under cross-examination, he said there was a small upright trolley.
There was a lot of variation in the weights of items such as batteries and car doors depending on the size of the vehicle.
Under cross-examination, Mr Haqbeen could not say the workers were pushed because that was Mr Ziaei’s job not his.
Mr Haqbeen had not remained in contact with Mr Noori since he ceased work for Aussin. He had seen him only once since then when Mr Noori had come to his workshop to bring a car with a friend for accident repairs.
Medical Evidence
Dr Martin Hill, treating GP, prepared a referral letter to a physiotherapist of 21 May 2021 regarding management of ‘discogenic lower back pain and leg pain under his WorkCover certificate and neck pain due to whiplash under his TAC claim’. In a report of 7 December 2021, Dr Hill referred to the histories given in the attendances on 10 August 2020 and on 2 September 2020. The diagnoses were of a large lumbar disc prolapse at L4/5 and a small disc prolapse at L5/S1 as well as multi-level disc herniation more prominent at C5/6. As for causation, it was opined that on the balance of probabilities his persisting back and neck injury has been caused by his employment. There was no capacity for pre-injury employment with some improvement in functional capacity expected in the foreseeable future.
Dr Meenal Mittal, treating pain physician, prepared reports to Dr Hill of 10 October 2020, 21 October 2020, 2 December 2020 and a medico-legal report of 20 October 2021. In the report of 10 October 2020 under the heading ‘Pain history’, it was recorded that ‘At the time of injury [Mr Noori] was working in the car yard’, of having worked full-time for eight months and of reporting ‘no previous injury prior to his date of injury’. The job was heavy and physically laborious with the date of injury being the last day of work which was 24 June 2020. By way of additional history, in the report of 10 October 2021, Dr Mittal noted that Mr Noori had reported that three to four weeks prior to his date of injury, he started experiencing low back and neck pain. Mr Noori gave a history of reporting the injury to his supervisor and that, by 24 June 2020, pain had escalated such that he could no longer work. Presenting complaints were of low back and lower left limb pain as well as of neck pain with left upper limb pain. There was nil relevant medical history to the physical complaints although pre-existing depression and anxiety relating to his detention as an asylum seeker. The impression was of pain secondary to work-related activities in the neck (with referred left arm pain) and lower back (with referred left arm pain).
As for diagnoses, Dr Mittal opined as to the lower back, based on the MRI of 16 October 2020, that was an L4/5 disc protrusion with right L5 nerve root compression and contact with the left L5 nerve root. As for the cervical spine, the MRI of 3 September 2020 demonstrated a C5/6 disc protrusion indenting the thecal sac. The history of the motor vehicle accident was noted including that he had required resuscitation and three weeks of in-patient treatment. It was opined that on the balance of probabilities Mr Noori’s back and neck pain was caused by his Aussin employment based on the initial history given. Proposed treatment modalities included medication, lumbar medial branch blocks and a nerve root injection, physiotherapy and referral to a psychiatrist.
Dr Mohammed Awad, neurosurgeon, prepared medico-legal report for Mr Noori’s lawyers dated 8 October 2021 after an examination in his rooms with a Dari interpreter. The history taken in October 2020 was of performing a very laborious job in a car wrecker’s yard since approximately with the onset of back and neck pain six months into the job. Pain gradually got worse and he was advised to cease heavy work which he did on 25 June 2020. His past medical history was non-contributory of any previous lumbar or cervical spine injuries. Diagnosis was of aggravation of lumbar and cervical spondylosis as well as left leg radiculopathy and left arm brachialgia. It was opined under the heading ‘diagnosis’ that ‘his very first lumbar scans’ (which Dr Awad lists under ‘Investigations’ as the CT scan of 3 August 2020) showed a large disc prolapse which has since resolved. On that basis, it was likely that the back injury was acute at the time of the first scan, when he was complaining the most of his lumbar spine pain. Dr Awad opined that supported a conclusion that the spinal pathology is not just constitutional and genetic, but there was definitely an acute component to it.
As for causation, Dr Awad opined that the back and neck injuries had been caused by the heavy work in his employment with Aussin. It was further opined that the employment was a significant contributing factor to his current condition. There was no capacity for pre-injury nor suitable employment and incapacity was materially contributed to by employment where he injured his back. Treatment should be conservative with surgery likely of no benefit.
Dr Awad prepared a supplementary report of 12 November 2021 (without a further examination), confirming his opinion to direct questions that the back and neck injuries were caused by employment with Aussin. He further opined that the injuries were not related to the Omega employment from June 2019 to December 2019 when he was asymptomatic. He otherwise repeated his previous opinions.
Dr Nicholas Ingram, psychiatrist, prepared medico-legal report for Mr Noori’s lawyers dated 25 November 2021. The history was of developing an injury while working in a physically demanding job as a labourer for Aussin. While he had worked in another wrecking yard the previous year, with Aussin there was more pressure to work quickly and also longer hours of up to ten hours a day. There had been the onset of feeling very depressed and anxious since injuring himself. The diagnosis was of a major depressive disorder secondary to chronic pain and inability to work. It was possible there was chronic pain syndrome. As for causation, if the pain was related to employment, then so was the depression. There was no work capacity of any nature because of his depression.
Dr Hazem Akil, treating neurosurgeon, prepared a report for Mr Noori’s lawyers dated 26 November 2021. Mr Noori, who had been referred by Dr Mittal, was first seen on 16 September 2021. A history was taken of a low-speed motor vehicle accident in March 2021 resulting in loss of consciousness and requiring intubation and hospitalisation including a period in ICU. It was noted at Geelong Hospital that there was detected mild right-sided weakness. The history since discharge was of neck pain, back pain, bilateral leg pain and left-sided shoulder pain. It was noted that Mr Noori had been seeing Dr Mittal for a work-related back injury prior to the motor vehicle accident. Diagnosis was of aggravation of lumbar and cervical spondylosis.
As for the question of causation and injury, Dr Akil observed that having Mr Noori seen without an interpreter, it was a struggle to obtain a clear history. Further, no history was taken directly from Mr Noori about the work activities. Dr Akil was unable to opine as to differentiation of consequences between the work activities and the motor vehicle accident. As for capacity, the impression was of incapacity for pre-injury employment and only doubtful capacity for suitable employment. As for whether incapacity was related to the employment, it was opined there was a significant contribution and that the motor vehicle accident had obviously made things worse.
Dr David Vivian, musculo-skeletal physician, prepared a medico-legal report for the Agent of 8 September 2020. Examination was via telehealth without an interpreter. The history was of heavy manual work on dismantling vehicles for Aussin from 13 January 2020 to 22 May 2020. Pain was widespread including left sided neck pain into the arm and low back pain into the entire right leg. As for past history, it was noted from supplied documentation that there had been recovery from a 2017 episode of low back pain. It was opined there was considerable abnormal illness behaviour and functional overlay. There were no investigations available at the time of assessment. It was opined that Mr Noori’s condition was uncertain and not diagnosable at that stage and that, given the complaints of near total body pain, it was impossible to make a musculo-skeletal diagnosis. Dr Vivian could not comment on causation without being able to obtain an adequate history. There was incapacity for work which was expected to be long-term with a need for assessment in a pain management setting. Presentation was replete with psychosocial overlay with Mr Noori reportedly feeling very stressed.
Mr Rodney Simm, orthopaedic surgeon, prepared a medico-legal report for lawyers for Aussin of 5 August 2021 after a telehealth assessment with an interpreter. As for the work duties, Mr Noori worked with two other employees dismantling and wrecking cars partly manually and partly with a forklift. Mr Noori denied running a scrap metal business in Bendigo during the closure period. A further history obtained was of pain while working for Aussin, but that the onset of very severe pain occurred during the closure period. As for any past history of neck, back or leg pain, Mr Noori denied having any. He told Mr Simm the 2017 CT lumbar spine scan was related to kidney issues. It was opined that there was progression demonstrated on the CT scans between 2017 and 2020 of L4/5 disc degeneration with further protrusion of the L4/5 intervertebral disc. As for the lower back, the diagnosis was of L4/5 lumbar disc degeneration. It was opined that the lumbar spine pathology as demonstrated on MRI does not necessarily mean the changes were responsible for his pain. That was because such degenerative changes may be present in asymptomatic individuals. It was opined that it was probable the L4/5 intervertebral disc pathology was relevant to the clinical signs and symptoms. It was opined that, while the work was physically demanding and there was reported pain in mid-2020, the pain only became more problematic after having ceased work. Accordingly, the organically based symptoms were due to constitutional/genetic lumbar disc pathology. It was felt the physical background was now obscured by non-organic factors. As for the neck, Dr Simm was unable to relate neck symptoms or left upper limb symptoms to employment. As for capacity, it was observed that Mr Noori’s current clinical presentation was of severe pain and disability and a self-belief of no capacity for work.
Consideration
Aussin’s principal defences were: firstly, Mr Noori sustained no injury arising out of or in the course of employment; and, secondly, employment with Aussin was not a ‘significant contributing factor’ to his claimed injuries.
The legal and evidentiary onus of proof rested with Mr Noori to establish, on the balance of probabilities, an entitlement to compensation for injury in accordance s 39(1) of the Act.
Additionally, by reason of the operation s 40(3)(c) of the Act, Mr Noori was precluded from an entitlement to compensation unless the evidence established, on the balance of probabilities, that employment with Aussin was a ‘significant contributing factor’ to any aggravation or exacerbation of underlying and pre-existing injury or disease.
As Counsel for Aussin observed in submissions, it is somewhat less clear as to which party bears the onus of proof with respect to the disentitling circumstances of s 40(3), than for the entitlement provision of s 39(1). Of course, in practical terms, very little turns on that question given the inevitable overlap of the two causal tests in cases such as the present one.
Regarding the interaction between the two tests, Counsel for Aussin referred in submissions to the following well-known passage in Samoiloff v Grandiflora Nurseries Pty Ltd:
It may be accepted that ‘arising out of employment’ and ‘significant contributing factor’ are separate and distinct tests that serve different purposes in the scheme of the WIRC Act. There is, however, a very substantial overlap between the two tests and, in many cases, there will be no discernible difference between them. …[1]
[1][2018] VSC 765 [17] (citation omitted).
Additionally, In St Mary’s School v Askwith (Askwith), Ashley JA this to say (omitting citations) regarding the interaction of the two tests:
The requirement that employment be a ‘significant contributing factor’ to the injury is less stringent than the requirement that injury arise out of the employment. That is what I held in Popovski v Ericsson Australia. The correctness of the proposition was not doubted on appeal, notwithstanding that a different result ensued. On the other hand … ordinarily the difference in the requirements is unlikely to influence the outcome of a proceeding.[2]
[2][2011] VSCA 90 [11] (‘Askwith’).
Here, Mr Noori needed to establish both that injury arose out of or in the course of employment but, also, the weight of evidence needed to support a finding that the period of employment with Aussin was a ‘significant contributing factor’ to the claimed injury when weighing all contributing factors.
That was because, as I observed at outset of these reasons, it was undisputed that Mr Noori had pre-existing injury or degenerative disease of the spine. That was based on the 2017 CT lumbar scan as well as the contemporaneous records of the clinic recording intermittent complaints of back pain between 2014 and 2017.
Certainly, in approaching the task of assessing the causal nexus between injury and employment, it is well-established that the Act recognises ‘a multiplicity of causes’.[3]
[3]Grech v Orica Australia Pty Ltd [2006] VSCA 172 [58].
In Sensis Pty Ltd v Jones, in applying Ashley JA’s analysis in Askwith, Ginnane J, put it this way: ‘The existence of other contributing factors does not preclude a finding that a worker’s employment was a significant contributing factor’.[4]
[4][2018] VSC 754 [93].
The Act reflects that principle in setting out the factors which must be taken into account in determining whether employment is a ‘significant contributing factor’ to a worker’s injury. Clause 25 of Sched. 1 of the Act requires consideration of the following factors:
a. the duration of the worker’s current employment;
b. the nature of the work performed;
c. the particular tasks of the employment;
d. the probable development of the injury occurring if that employment had not taken place;
e. the existence of hereditary risks;
f. the lifestyle of the worker; and
g. the activities of the worker outside the workplace.
It is also well-established, as the Court of Appeal made clear in Askwith, that consideration of the ‘significant contributing factor’ test involves ‘resolution of an essentially factual enquiry, the question being one of degree, requiring evaluation’.[5]
[5]Askwith [2011] VSCA 90 [13] (citation omitted).
As for what meaning is to be accorded to the adjective ‘significant’, I have referred in previous decisions such as Rushin v Norman Carriers (Aust) Pty Ltd[6] to the expression ‘of considerable amount or effect’ as per Ashley JA in Popovski v Ericsson Pty Ltd.[7]
[6][2021] VMC 4.
[7][1998] VSC 61.
In this case, it seems to me that the resolution of the factual enquiry regarding causation was not an easy task for a number of reasons.
In terms of an evaluation of the evidence and matters of factual findings, Mr Noori’s credit as a witness was, as I said at the outset, a central consideration and came under heavy attack in the course of lengthy cross-examination. Counsel for Aussin submitted that the plaintiff was not a credible witness being, at best, unreliable and, at worst, dishonest.
The Court of Appeal has on many occasions, in personal injury proceedings, referred to the evidence of the plaintiff (and whether that evidence is accepted by the trier of fact) as often critical to the success or otherwise of the plaintiff’s case. I refer to the Court’s well-known statements regarding the importance of the plaintiff’s credit in Petrovic v Victorian WorkCover Authority (Petrovic)[8] and Johns v Oaktech Pty Ltd.[9]
[8][2018] VSCA 243 [74] (‘Petrovic’).
[9][2020] VSCA 10 [76].
In this case, cross-examination of the plaintiff traversed whether Mr Noori had suffered an injury at all related to his employment with Aussin and almost all of the factors set out in Clause 25, in particular on the following matters:
a. the duration of employment (specifically, on what date he actually finished performing work) with Aussin;
b. the tasks of his Aussin employment including the heaviness or otherwise of the duties of car dismantling;
c. the nature and extent of the prior complaints of back and neck trouble;
d. the nature of his previous work particularly with Omega; and
e. activities outside the workplace particularly the assistance provided to Mr Kazemi in June and July 2020.
On these matters, in the course of cross-examination, Mr Noori gave answers that were frequently inconsistent and contradictory and, at times, somewhat embellished. He contradicted his own evidence many times. His evidence was rarely corroborated by contemporaneous documentation or the evidence of other witnesses. There were numerous examples including:
a. His denial of any neck injury at all in the 2015 fall notwithstanding the contemporaneous clinical note of such a complaint and the cervical spine x-ray. Although for completeness, I note that at a later point in cross-examination, his response shifted to appearing to accept that he made the complaint, but could no longer recall it.
b. His denial that he stopped the tiling work in 2018 because it was too heavy (having stated initially he stopped it because he disliked it). That was in contradiction of the contemporaneous clinical note of 10 June 2018, which recorded his complaint to the GP of ‘aches and pains’ especially in winter and due to ‘the hard demanding job as a tiler’.
c. His, to my mind, somewhat bizarre and implausible denial that he had signed the employment contract of 13 January 2020 with Aussin, maintaining it was not his signature. He gave evidence of never having signed the employment contract and that the signature was not his. That was although the fact of his employment was not in contention and notwithstanding almost identical signatures on his driver’s licence and the claim forms. (Of course, it was contended by Mr Aussin that, by reason of clauses in the employment contract, Mr Noori was in breach of his employment contract due to his activities with Mr Kazemi in the closure period, a matter to which I will return).
d. An example of apparent embellishment was his evidence that he dismantled eight to ten or more cars a day. That was at odds with the largely consistent evidence on this question of three other lay witnesses being Mr Aussin, Mr Ziaei and Mr Haqbeen. They all said that the number of cars dismantled per day by the car dismantlers was between four or five and six.
It also seems to me that Mr Noori’s answers to questions lacked directness and were often evasive throughout his evidence, and in particular in cross examination. Examples included:
a.When asked why the GP on 9 March 2020 would have recorded ‘no pain in back’, he said, ‘well, when you do heavy work, you get pain’.
b.When it was put to him that he did not make any report that the pain was due to work, he said, ‘well, I knew it was heavy work and there was lot of pressure on my back, neck and legs’.
c.He gave evidence that he had complained to Dr Razaghi about back and neck pain multiple times whilst working for Aussin even though that was not reflected by the contemporaneous notes of attendances in that period. Later, he altered his evidence, saying he said he did not tell Dr Razaghi about his pain for varying reasons including that he was fearful of losing his job, that he thought the pain would settle and that he was only a labourer and didn’t know what to say to the doctor.
d.His evidence about the circumstances of not returning to work after the closure period, stating that he called Mr Aussin informing he could not return and was unwell. He gave evidence that he meant he had back and neck pain and could not work. His evidence of having spoken with Mr Aussin about not coming back to work due to back or neck pain would appear to contradict the contemporaneous text message which stated: ‘in Bendigo quarantine and really sick. Unable to work for few weeks … Unable to answer sorry’.
Accordingly, given these matters and in weighing the whole of the evidence, I conclude that Mr Noori’s evidence not a reliable account of the matters in dispute. On that basis, I accept the submission of Aussin’s Counsel that Mr Noori’s evidence ought not be accepted on disputed matters unless supported by other evidence that was credible.
The plaintiff’s account in personal injury proceedings is, of course, relied upon by the medical experts forming opinions. The Court of Appeal had this to say in Petrovic: ‘Put shortly, the opinion of any particular expert in a case like the present is usually only as good as the underlying history upon which it is based’.[10]
[10]Petrovic [2018] VSCA 243 [74] (citation omitted).
In the course of cross-examination, Mr Noori was further challenged regarding numerous apparent inconsistencies and omissions in the histories given to the medical practitioners. Examples of histories that were at odds with the aspects of evidence at the hearing (as per the matters set out at the start of these reasons) included:
a.Dr Mittal, the treating pain physician who also provided a medico-legal opinion, had a history of eight months of work with Aussin; of no prior injury or condition; of low back and neck pain being reported four weeks prior to ceasing work which escalated such that by 24 June 2020 he could not work because of pain.
b.Dr Awad had a history of Mr Noori working in the car wreckers yard since 2018 and of being advised to cease heavy work which he did on 25 June 2020. Additionally, Dr Awad was under the impression that ‘his very first lumbar scans’ were those of 3 August 2020, apparently having no awareness of CT lumbar spine scan of 2 October 2017.
At this point, I make some observations regarding the letters of instruction sent to the medical examiners by Mr Noori’s lawyers (and tendered into evidence by Aussin) as follows: a letter of 16 September 2021 to Dr Mittal; a letter of 6 October 2021 to Dr Awad; and a letter of 25 November 2021 to Dr Ingram. These are very lengthy letters which set out an extensive and detailed history over two to three pages under the heading ‘Background’. The matters set out in these letters of instruction under ‘Background’ include a chronology of uncontroversial events and circumstances such as: Mr Noori’s medical history since coming to Australia; the 2015 fall; complaints of back pain before 2020 and so on.
Additionally, however, and also included as ‘Background’ matters, are statements that strike me as having the potential to mislead the medical experts being asked to provide an opinion. That is because they are statements about matters that were contentious at hearing and also central to the dispute (my emphasis added) such as:
· ‘These duties [performed at Aussin] put strain on his back and neck.’
· ‘He ceased work on or about 24 June 2020…’ – a matter of dispute and without making reference to the closure period and the surrounding circumstances.
· Regarding the motor vehicle accident: ‘He was cleared with no injuries…’– and, although that appears ultimately may have been the case, no reference is made to the lengthy hospital admission and inpatient stay for some twenty nights following the motor vehicle accident.
· ‘His going [sic] ongoing symptoms in his neck and back have not changed since the motor vehicle accident.’
· ‘He lodged a WorkCover Claim for his back and neck claim…’ – when the evidence was of two claims being lodged: an initial claim only for the back about two or so months after ceasing work and a second claim for ‘back and neck’ lodged eight months after the first claim (and one month after the motor vehicle accident).
It is true that a fuller picture, for example regarding the motor vehicle accident, may have been gleaned by the medical examiners from the hospital summaries.
Nevertheless, it seems to me that providing such letters of instruction to medico-legal assessors and examiners is unhelpful to the Court in a factual dispute this kind. Such letters add complexity to the trier of fact’s task of assessing the reliability of the histories given to medical witnesses. They do not assist in the task of determining whether or not to accept the opinions of the medical experts.
Counsel for Aussin submitted that the medical opinions relied upon by the plaintiff regarding causation are undermined by Mr Noori’s own inaccurate histories and/or by the letters of instruction. For the reasons already stated, I agree with that submission and treat those opinions with appropriate caution. That is particularly given none of the medical opinions were the subject of cross-examination.
Ultimately, of course, it is incumbent upon me to decide the case on the whole of the evidence.[11] In particular, I note the obligation to examine the whole of the medical evidence even where it may have been undermined by other evidence, including evidence that the worker may not have been fully frank with a doctor.[12]
[11]Yilmaz v Specialty Fashion Group Pty Ltd [2019] VSCA 100 [73].
[12]Pulling v Yarra Ranges Shire Council [2018] VSC 248 [50] - [55].
Before I turn to the evidence and my findings, it is important to consider a further aspect of the submissions of Counsel for Aussin regarding the reliability of Mr Noori’s evidence.
It was submitted by Counsel for Aussin that Mr Noori’s reliance upon a Dari interpreter throughout his evidence was ‘disingenuous’, a ‘waste of time’ and ‘inappropriate’ as it gave him more time to decide how to answer questions in cross-examination. In support of that submission, Counsel for Aussin pointed to a number of instances in which Mr Noori appeared to interrupt the interpreter to clarify something. It was submitted also that Mr Noori gave evidence of there being no difficulty understanding his GP, Dr Hill, with whom he did not communicate in Dari.
Weighing the whole of the evidence, I do not accept that submission. It seems to me that whilst a witness may have some command of everyday English (which I conclude Mr Noori did), that does not equate to a conclusion that utilising an interpreter is necessarily disingenuous nor a strategy to advance a litigant’s interests. In my view, being able to speak somewhat limited everyday English is not inconsistent with relying upon an interpreter whilst giving evidence in a court proceeding in a second language.
I agree with Mr Noori’s Counsel in that regard. As he also observed in submissions, it was certainly apparent that the medico-legal examiners relied on interpreters in taking histories. When Dr Vivian and Dr Akil assessed Mr Noori without the benefit of an interpreter, the extent to which they struggled to take a history or form a conclusive opinion was highly evident from their reports.
Having set out these considerations, I now turn to my findings and the balance of the evidence.
Whether there was injury in the course of or arising out of employment
I turn first to the question of the claimed low back injury.
For reasons to which I will return, it is convenient to consider the claimed neck injury wholly separately to the claim for the back injury.
The starting point was the opinion of Dr Hill, the treating GP, who opined that there was discogenic lower back pain. Dr Hill was the GP at the clinic to whom Mr Noori first reported injury which he attributed to his work at Aussin. That was on 10 August 2020 after being referred to him by Dr Razaghi.
At this point I observe that, as regards the GP evidence in the case, Counsel for Aussin called for a Jones v Dunkel[13] inference to be drawn regarding the plaintiff’s unexplained failure to provide evidence from Dr Razaghi, the GP at the clinic to whom Mr Noori first complained of back pain after starting with Aussin.
[13](1959) 101 CLR 298.
I prefer the submission of Counsel for Mr Noori that it would be inappropriate for me to draw such an interference. I accept his submission that the circumstances of the case do explain adequately why Dr Razaghi did not give evidence. Those matters were: the fact that the entire clinical notes of Dr Razaghi’s clinic were tendered into evidence; the fact that reports of another treating GP at the same clinic (Dr Hill) were tendered into evidence; and, the evidence (captured in the clinical notes) that Dr Razaghi ‘did not do Workcover’ and so, it is reasonable to presume, would not have been prepared to provide a report (a not uncommon circumstance in this jurisdiction).
As for the specialists, the same diagnosis was given by both Dr Akil, treating neurosurgeon, and Mr Simm, orthopaedic examiner for Aussin. They opined the diagnosis was of aggravation of lumbar spondylosis. Dr Awad, medico-legal neurosurgeon for Mr Noori, opined that there was an acute component to the lumbar pathology seen on the scans of 2020 (although, as I have noted, he was unaware of the existence of the 2017 CT lumbar scan). On diagnosis, Dr Mittal simply reported the findings on the October 2020 lumbar MRI scan.
Importantly, Mr Simm, the only specialist provided with the 2017 CT lumbar spine, opined that there was progression of lumbar pathology demonstrated as between that imaging and that seen on the investigations of the lumbar spine of 2020.
Additionally, Mr Simm opined that while the lumbar spine pathology seen on MRI did not necessarily mean the changes were responsible for his pain, it was ‘probable’ that the L4/5 intervertebral disc pathology was relevant to his clinical signs and symptoms. At the same time, he also considered that that there were non-organic factors at play.
For these reasons, I find that the diagnosis or nature of Mr Noori’s low back condition was aggravation of underlying, pre-existing and intermittently symptomatic lumbar disc degeneration.
I now turn to whether the claimed low back injury arose out of or in the course of employment.
In relation to my findings regarding the work with Aussin, it is convenient to observe at this point that I found Mr Ziaei to be an impressive and credible witness. Whilst he was plainly in the defendant’s camp as a current employee, he answered questions in a straight-forward way and made various concessions against interest. For example, he conceded that Mr Noori being a full-time car dismantler would complete cars more quickly than he did and so he (Mr Noori) could likely have done more per day than four to five. He also made concessions about aspects of the tasks such as that, although doors were generally handled by two men, they were sometimes handled by a car dismantler individually.
As for Mr Aussin, I found him to be a generally credible witness whilst having reservations about some more self-serving aspects of his evidence. For example, his claim that Mr Noori’s employment contract was later amended to be only for a limited term was implausible. I also did not accept his evidence that Mr Noori’s last day of work was 22 May 2020 which I found improbable for reasons to which I will return. On the other hand, Mr Aussin also made important concessions and, in many regards, his evidence particularly about the work was consistent with Mr Ziaei’s.
Both Mr Aussin and Mr Ziaei said Mr Noori was a reliable and good worker who was experienced and professional.
Before proceeding further, it is convenient at this point to make some observations regarding Mr Haqbeen, an employee of Aussin between August 2018 and 28 May 2019. A subpoena was issued requiring his attendance at the request of Mr Noori’s lawyers. That was because of a lack of cooperation with the lawyers and an unwillingness to appear and give evidence at the hearing. Indeed, Mr Haqbeen’s unwillingness to give evidence was demonstrated by a failure to attend Court on a number of dates resulting in the adjournment of the hearing for about eight months (and the issuing of a warrant).
Ultimately, in spite of this reluctance, Mr Haqbeen did give evidence and aspects of his evidence were important in corroborating some of what was said by Mr Aussin and Mr Ziaei about the work and also about the end of the work operations (although he recalled that being due to COVID-19 restrictions rather than the roof works).
I now turn to two factual matters about which there was considerable controversy with respect to the causation issue.
First, when, or at what stage in relation to the closure period, did Mr Noori cease performing work for Aussin?
Second, what was the extent and contribution (if any) of Mr Noori’s activities (whether in the nature of work or otherwise) in the period of June and July of 2020 (between ceasing work with Aussin and the reporting of the injury on 7 August 2020)?
As for the first of these questions and when Mr Noori stopped performing work with Aussin, I make the following findings of fact:
a.Aussin was closed for business from 30 May 2020 (a Saturday). That was in accordance with the contemporaneous photo of the signage on the front of the premises advising the public of the closure.
b.The work of clearing the warehouse prior to the roof works starting was performed by Aussin’s employees (including Mr Noori) likely up until around either that date (30 May 2020) or the Friday (29 May 2020). In my view, it is common sense that a business would aim to keep to an absolute minimum any period of not operating prior to the forced closure period being imposed by the owner of the premises.
c.The workers including Mr Noori, who were being paid, would likely have been required by Aussin to keep working right up right up until 29 or 30 May 2020. That accords with Mr Haqbeen’s evidence that he ceased with Aussin on or around 28 May 2020 (although for an incorrect reason).
d.Mr Noori’s last day of work was likely Friday 29 May 2020. I reject the evidence of Mr Aussin that the time-card of 22 May 2020 was reflective of his last day of work. Mr Aussin also said the workers were using timecards for the clearing work preparatory to the closure period. It is implausible to my mind that 22 May 2020 (eight days before the formal closure) would have been the last day worked by Mr Noori.
e.Mr Noori did not perform work for Aussin beyond 30 May 2020. I accept the evidence of Mr Aussin and Mr Ziaei that the roof works involved asbestos removal with all the attendant hazards such activity entails. I find it simply implausible that Mr Noori would be inside the warehouse in the month of June 2020 as apparently depicted in his video. I find that the video was taken in late May 2020 and simply shared or saved on his Snapchat account sometime later in June 2020.
f.The duration of the work performed for Aussin therefore was from 13 January 2020 to 29 May 2020 (a period of about 14 weeks).
To my mind, other than the question of Mr Noori’s credit generally, not too much turns on this other than the duration of the being shorter than claimed by Mr Noori with respect to the evaluation of the Clause 25 factors. Also, it follows from my finding that the histories relied upon by the medical opinions (other than Mr Simm) of Mr Noori having worked on for another month – until 26 June 2020 – were inaccurate.
A more significant issue, it seems to me, concerns Mr Noori’s activities after 30 May 2020 and when assisting Mr Kazemi in around June and July of 2020. Having been a friend of Mr Noori since 2016, I regard Mr Kazemi’s account with some caution. His recollection of most matters was vague at best.
Weighing the whole of the evidence, I find it likely that Mr Kazemi was investigating the viability of, and how to go about, starting a scrap metal dealership in mid-2020. I find, further, that it was likely Mr Noori’s role with Mr Kazemi was largely advisory rather than hands on for these reasons:
a.I accept as credible the evidence of both Mr Kazemi and Mr Noori that the business was starting out and Mr Noori was sharing his experience and knowledge of the business (and for what it is worth, Mr Noori probably was in breach of his employment contract);
b.The evidence of both was that Mr Noori assisted him by going around to assess scrap metal and network with dealers although there were at least a couple of times when scrap metal was purchased. Mr Aussin gave evidence about Mr Noori having been seen with Mr Kazemi ‘collecting scrap metal’ at scrap metal dealerships in suburbs of Melbourne.
c.Both Mr Kazemi and Mr Noori mentioned in evidence a car or a van so it seems to me unlikely that large or very heavy pieces of metal were being handled.
d.I accept as likely Mr Kazemi’s account that it was on and off and not activity performed all day every day as there was no suggestion of operating premises nor of a workshop as such according to the evidence of them both.
e.The instances of cash deposits into Mr Noori’s bank accounts at this time might have related to that activity although, if they did, that does not advance matters as to whether the nature of the work contributed or not to the claimed injury.
Having considered these matters, I now turn to the work with Aussin.
Weighing the whole of the evidence, in particular the evidence of Mr Aussin and Mr Ziaei and to some extent Mr Haqbeen, I find that nature of Mr Noori’s work as a car dismantler was heavy, repetitive and sometimes awkward. I also find that there was a substantial manual component even though (as I said at the outset) there was the availability of equipment such as upright trolleys, a flatbed trolley, forklifts and tools like air-guns.
On the balance of probabilities, I conclude that the weight of evidence supports a finding that Mr Noori’s claimed low back injury did arise out of or in the course of employment with Aussin. I draw that conclusion based on my factual findings on the evidence as follows:
a.Mr Noori had made no complaint to any doctor at the clinic regarding low back pain beyond November 2017 (which was some 26 months prior to starting with Aussin).
b.Mr Noori commenced with Aussin on 13 January 2020 performing the work of a car dismantler on a full-time basis.
c.Mr Noori was dismantling about four and six cars a day (on the evidence of Mr Aussin, Mr Ziaei and Mr Haqbeen). I find it likely that an experienced and professional car dismantler (as Mr Aussin described him) was likely to complete at least 5 to 6 cars per day or up to 30 cars a week.
d.At the time of Mr Noori commencing, both Mr Aussin and Mr Ziaei referred to there being only two dismantlers (rather than the usual three) as one other dismantler was overseas. So it seems to me likely there was at least some pressure for the two dismantlers to work on as many cars per day as practicable to keep up with volume.
e.Whilst there were (as I have said) available to the dismantlers trolleys and forklifts, the process of taking cars apart and removing components still involved many manual tasks and physically demanding aspects. That was the consistent evidence of Mr Aussin and Mr Ziaei and to some extent Mr Haqbeen. In particular, Mr Aussin said he could not deny the work performed by the car dismantlers was heavy.
f.The work performed on and around the cars involved manual handling, at least partly, of batteries, doors, door panels and other components. These parts were heavy as were bonnets and boot-lids. Those were concessions made by Mr Aussin under cross-examination.
g.Even with tools available, it could be physically challenging to remove rusty bolts and could take hours. That was the evidence of Mr Aussin and corroborated by Mr Haqbeen.
h.There was no downturn in work due to the pandemic until mid-2020 according to Mr Aussin (probably after or coinciding with the closure period).
i.Within about eight weeks of starting to perform these duties with Aussin, Mr Noori attended his GP on 9 March 2020 and complained of ‘muscle spasms’ and leg pain for three days. Whilst it is true there was no back pain reported and no history given of work, I nevertheless conclude, on balance, given my findings about the work being performed at the time on a full time basis, that this was a likely work-related aggravation of Mr Noori’s underlying discogenic disease.
j.On the basis of Mr Noori making no further complaint of back pain between 9 March 2020 and 25 July 2020 (even though he saw GPs at the clinic three times for unrelated medical issues during this period), I find it likely any low back symptoms during this period either fluctuated or were intermittent.
k.On 25 July 2020, Mr Noori complained of low back pain to Dr Razaghi with pain radiating down both legs and numbness.
l.The complaint to the GP of 25 July 2020 was likely a progression of the complaint to the GP of muscle spasms and leg pain in March 2020. That is supported by Mr Simm’s opinion of a progression of the lumbar pathology. Also, the opinion of Dr Awad was of an acute aspect to the lumbar pathology demonstrated on the August 2020 CT scan (albeit he did not have the 2017 scan as I have noted).
m.I refer also to my findings about the activities with Mr Kazemi as set out previously.
Turning again to the medical evidence, I accept the submission of Counsel for Aussin that Mr Simm probably had the most accurate and complete history of all the specialists, having not only the complete clinical records, but also the 2017 CT lumbar scan.
It was submitted for Aussin that Mr Simm’s view on causation ought to be preferred to the other medical opinions given other specialists’ opinions were at least partially undermined by Mr Noori’s own inaccurate histories and the letters of instruction (as I have already observed).
I agree with that submission in terms of weight although, as the authorities referred to earlier make clear, I would be in error if I disregarded the other medical opinions (which I do not).
As for Mr Simm’s report, I am unable to accept the submission of Counsel for Aussin that the opinion of Mr Simm was that Mr Noori’s lumbar spinal condition was ‘not caused by’ employment with Aussin.
Firstly, the threshold test of entitlement is, of course, not that employment ‘caused’ the injury. Indeed, Mr Simm was apparently not asked to address the question of whether or not injury arose out of or in the course of employment.
Secondly, Mr Simm has a history of prior intermittent low back pain between 2014 and 2017 and has the 2017 lumbar scan about which he opines there was a progression between that and 2020.
Thirdly, he accepts and opines that the work was ‘physically demanding’ and there was the onset of pain in mid-2020.
Fourthly, he opines that it was ‘probable’ that the L4/5 intervertebral disc pathology was relevant to his clinical signs and radiology.
Whilst it is true that Mr Simm observes that ‘pain only became more problematic’ after he ceased work and that the symptoms were ‘due to constitutional/genetic lumbar disc pathology’, as a matter of law, those matters do not of course preclude a finding that injury arose out or in the course of employment given my findings of fact set out earlier.
I take into account to some extent that other examiners for the plaintiff (except Dr Akil who was focussed on the motor vehicle accident) accept a causal relationship between the work with Aussin and the back injury, although I attribute considerably less weight to their opinions for the reason already stated. I will say more about their opinions in relation to the ‘significant contributing factor’ test.
For completeness, I note that Dr Vivian was unable to draw any conclusion at all.
Having made that finding regarding the low back, I now consider the further test which as I have stated is applicable.
Whether employment was a significant contributing factor
Essentially for the same reasons, I further conclude that employment with Aussin was a ‘significant contributing factor’ to the low back injury being aggravation of underlying, pre-existing and intermittently symptomatic lumbar disc degeneration.
In particular, with respect to paragraphs (a) to (c) of Clause 25, I refer to the undisputed matters of evidence set out at the outset of these reasons and to my further findings of fact regarding the work with Aussin between 13 January 2020 and 30 May 2020.
In terms of (d) and (e), I find there was underlying vulnerability of the lumbar spine in terms of the prior symptoms (although not the subject of complaint to any GP for some 26 months). However, for the reasons already referred to regarding ‘injury arising out of or in the course of’, I am unable to conclude that the injury probably would have developed had the work with Aussin not taken place.
As for the roughly eighteen months of work performed as a car dismantler with Omega, I find that may have been a contributing factor, but not a significant one given the absence of GP complaints during that period.
In terms of (f) and (g), I further refer to my findings regarding the activities with Mr Kazemi.
There was, in submissions and cross-examination, some suggestion of Mr Noori’s gym activities being a contributing factor to the claimed injury but, if so, again, there was no evidence to support a finding of that being significant. Indeed, it was widely reported in the media that gyms were closed for much of 2020 at least in Melbourne during the COVID-19 lockdowns.
Having made those findings, I now turn to the claimed neck injury.
Cervical spine and employment with Aussin
In an Amended Statement of Claim dated 20 August 2021, the plaintiff relied upon ‘injury to the spine, including but not limited to the lumbar spine and cervical spine as well as secondary psychological/psychiatric injury’.
The addition of the words ‘and cervical spine’ were added to the initial Complaint and Statement of Claim of 30 March 2021. That was at the time of amending the pleadings to rely upon the second claim and the notice of 27 May 2021.
It is fair to say that the addition of the neck claim certainly served to ‘muddy the waters’ in terms of the plaintiff’s already rather complicated claim in this proceeding.
In relation to the claimed neck injury, I conclude that the plaintiff has failed to discharge the burden of proof to the requisite standard. That is for the following reasons based on the evidence.
As for Mr Noori’s own evidence, I have already set out at length my concerns regarding the reliability of his evidence and the need for corroboration or support from other credible evidence. Indeed, it was my observation that Mr Noori sometimes and somewhat interchangeably appeared to refer to ‘back and neck’ and sometimes to ‘back and leg’ at various points in his evidence.
The initial reference to neck pain in the clinical notes (post the start with Aussin on 13 January 2020) was on 2 September 2020.
Before that, there is no reference before that to neck or upper limb issues in the GP attendances of 9 March 2020 and 25 July 2020 (or at any time) whilst working for Aussin. There is no reference to complaints about the neck or upper limb issues when he attended about back pain on 30 August 2020 and 1 September 2020.
As Mr Simm observed, the second claim for ‘back and neck’ but otherwise repeating the circumstances of the first claim, was made seven months after the first claim and also about one month after Mr Noori’s discharge from Geelong Hospital. That was following a three week hospital admission.
Dr Akil and the other medical examiners for the plaintiff were asked questions about the ‘back and neck’ without any clarification or information (in spite of the otherwise very detailed instructions as) regarding the apparent later onset of neck symptoms or the fact of there a second claimed lodged after an interval of several months.
For example, Dr Akil has this to say:
Again my understanding is that he has injuries to his neck and lower back because of this work-related injury and he was complaining from significant symptoms after that. These symptoms got aggravated by the road traffic accident. There is significant contribution from his employment … and the car accident obviously made things worse.
In my view, Dr Awad and Dr Mittal similarly and unhelpfully conflate the back and neck conditions in their opinions.
Most importantly to my mind, when initially writing to the physiotherapist, the GP Dr Hill appears to make no connection between any neck trouble and the work. He writes in the referral letter to the physiotherapist of 21 May 2021 that it was for management of ‘discogenic lower back pain and leg pain’ under the Workcover certificate and ‘neck pain due to whiplash under his TAC claim’. Yet, by the time of his letter to the lawyers of 7 December 2021, he writes of symptoms being ‘consequential to the work related back and neck injury’.
Psychological injury and employment with Aussin
I now turn to the evidence in relation to the claimed secondary psychological injury.
Dr Ingram, the only psychiatrist to provide an opinion in the case, assessed Mr Noori in November of 2021. Unfortunately, and rather unhelpfully, Dr Ingram appears to have no history of the motor vehicle accident in March 2021 nor of the extended hospitalization at that time.
As for diagnosis, he opined there was a major depressive disorder and a possible chronic pain syndrome. A history was obtained of Mr Noori having become very depressed and anxious ‘since the accident’ and that ‘this depression started a few months after the accident related to his pain and inability to work’.
Dr Ingram concluded that if the pain was related to employment, as was the depression.
Having considered the whole of the evidence, in particular the contemporaneous evidence of the clinical records, I conclude that weight of evidence supports a finding that Mr Noori has suffered a psychological injury resulting from or materially contributed to by the work-related back injury. That is for the reasons that follow.
Whilst there was, as set out in the matters not disputed, a past history of mental health issues for which Mr Noori was counselled by GPs at the clinic, the last such attendance before starting with Aussin was some three years before. That was on 8 February 2017 when Mr Noori complained of low mood to Dr Razaghi and was prescribed Lovan, an anti-depressant, on a single occasion.
However, by 20 September 2017 when Mr Noori attended for various issues, he reported feeling much improved mentally and ceasing all medications. That was after his visa permitting him to work came through.
There were no recorded complaints of mental health issues until the back symptom complaints occur. On 30 August 2020, Mr Noori he attends regarding ‘severe debilitating pain’ and of being ‘teary and very down due to pain and also in difficult situation due to not working for more than 3 months now’. On 11 October 2020, Mr Noori attended for a ‘mental consult’ and reported being devastated by chronic pain and lack of income.
The clinical notes tendered into evidence do not extend beyond the end of 2020.
It is true that Dr Hill in his report of 7 December 2021 does not include a diagnosis of any work-related psychological injury.
Nevertheless, on balance, I accept that there was consequential psychological injury based on the clinical record of the attendances from late August 2020 onwards and Dr Ingram’s opinion.
Whilst this question is complicated by reason of my finding that the neck injury was not work-related, I conclude that weight of evidence supports a finding that the psychological condition resulted from or least materially contributed to by the work-related back injury. As for the role of the motor vehicle accident, my finding that the psychological injury was already manifest and related to the low back injury is, to my mind, supported by the Barwon Health Discharge Summary which refers to a likely co-morbid depressive disorder.
For completeness, I further find that employment was a significant contributing factor to the aggravation of any pre-existing psychological condition given the matters to which I have already referred.
Capacity
Mr Noori also needed to discharge the burden of proof to the requisite standard that any incapacity for employment resulted from or was materially contributed to by any compensable injury pursuant to s 160 of the Act.
I find that he remains unfit for pre-injury employment based on the opinions of Dr Hill, Dr Ingram and Mr Simm. There was no contrary opinion on capacity.
Additionally, in my view, the weight of medical evidence supports a finding that Mr Noori’s incapacity for employment resulted from or was materially contributed to by his low back injury and psychological condition.
As for the role of the motor vehicle accident, by that date, Mr Noori had been unfit for pre-injury employment for some seven months since 6 August 2020 when it would appear the first medical certificate was issued by Dr Razaghi.
Conclusion
For these reasons, I find as follows:
a. Mr Noori suffered injury in the nature of aggravation of underlying, pre-existing and intermittently symptomatic lumbar disc degeneration, as well as a secondary psychological condition, arising out of or in the course of his employment with Aussin with a nominated date of injury of 29 May 2020.
b. Employment with Aussin was a significant contributing factor to the injuries referred to in paragraph (a).
c. Mr Noori did not suffer an injury of the cervical spine arising out of or in the course of his employment with Aussin nor was employment a significant contributing factor to any such injury.
d. Mr Noori has an incapacity to perform his pre-injury employment which commenced on 6 August 2020 and such incapacity resulted from or is or was materially contributed to by the injuries referred to in (a).
e. Mr Noori has an entitlement to compensation for appropriate medical and like treatment for the injuries referred to in (a) from 30 May 2020.
I will hear from the parties regarding final orders.
MAGISTRATE HOARE
8 November 2022
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