Re Liu and Comcare

[2004] AATA 617

Allen and Transpacific Industries Pty Ltd (Compensation) [2015] AATA 808 (16 October 2015)

Division	GENERAL DIVISION
File Number	2014/4428
Re	Brian Allen
APPLICANT
And	Transpacific Industries Pty Ltd
RESPONDENT

DECISION

Tribunal	Miss E A Shanahan, Member
Date	16 October 2015
Place	Melbourne

The Tribunal affirms the decision under review.

...............................................................

Miss E A Shanahan, Member

COMPENSATION – claim for aggravation of pre-existing cervical spondylosis due to trauma to the cervical spine – claimed faulty vehicle – expert evidence as to safety of the vehicle – conflicting non-expert mechanical evidence – credit of applicant – applicant maintains fault lays with the truck rather than his perhaps unfamiliarity with seat controls – decision affirmed 

Legislation

Safety, Rehabilitation and Compensation Act 1988 sections 5A, 5B and 14

Cases

Re Liu and Comcare [2004] AATA 617

REASONS FOR DECISION

Miss E A Shanahan, Member

16 October 2015

1. Mr Allen lodged an application for worker’s compensation on 6 June 2014, the nature of the claim being for damage to C4/5, C5/6 causing pain and numbness in the left arm and pain in the neck.  The injury was attributed to a malfunctioning seat in the garbage collection vehicle he was driving on 3 June 2014.  The vehicle in question had been a replacement vehicle as his usual very modern rear end loader was being serviced. 

2. On 17 July 2014 a senior case manager of the respondent, Transpacific Industries Pty Ltd (Transpacific) made a determination declining liability for workers’ compensation.  Mr Allen sought review of this decision by a reconsideration delegate.  Mr Mark Simpson, the reconsideration delegate, on behalf of Transpacific affirmed the determination on 14 August 2014.  While he considered all the evidence in detail Mr Simpson’s decision rested primarily on the evidence of independent experts and the mechanical assessment by staff of Transpacific who had found no defects or faulty performance of the seat of the truck Mr Allen drove on 3 June 2014. 

3. Mr Allen made an application to the Administrative Appeals Tribunal on 25 August 2014 for a review of the decision of the reconsideration delegate.

4. Mr Mark Carey of counsel instructed by Zaparas Lawyers appeared for the applicant and Mr Steven Whybrow of counsel instructed by HBA Legal appeared for Transpacific. The Tribunal was provided with the documentation filed in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents) which were tendered as Exhibit R1.  Both parties tendered considerable volumes of documents a list of which is appended to this decision.  Evidence before the Tribunal was given by the applicant Mr Brian Allen, Mr A Aliashkevich, neurosurgeon, Dr D Rillstone, general practitioner, Mr R McDonald, consulting engineer, Mr G Khurana, neurosurgeon, Dr S Richardson, mechanical engineer, Mr B Layton, the workshop manager of Transpacific, Mr G Barns, the operations supervisor for Transpacific at their Clayton depot and Mr C Baunton, diesel mechanic employed by Transpacific at their Clayton depot.

   BACKGROUND TO THE APPLICATION

5. Mr Allen claims that on 3 June 2014 he was required to drive a truck which he considered to be approximately 12 years old in place of his normal rear end lifting modern vehicle in order to perform his usual workday activities of collecting recyclable garbage from commercial premises. His departure and return points were the respondent’s Clayton depot.  His usual 400 kilometre pickup run covered suburbs as far apart as Berwick and Prahran. 

6. During the course of his rounds he was required to meet a quota of 10 bin sites per hour.  The number of bins at any one site would vary both in number and size with numbers up to 80 bins at Melbourne Boys’ High School. The size of the bins ranged from 240 litres to 1000 litres. 

7. Mr Allen states that he noticed abnormalities with the driver’s seat almost from the moment he started driving the vehicle which has been identified as an Acco truck (registration number WRP 035) which is much smaller than his Dennis Eagle vehicle.  Mr Allen has been a truck driver for 25 years and had worked for Transpacific for three years at the time of his claimed injury.  Prior to that he had worked for a rival of Transpacific, RR Richards doing exactly the same type of work for a period of six years.

8. On the day in question Mr Allen commenced work at 4:00 am and on driving from the Clayton depot crossed a gutter and bumped onto the road. He states he hit his head on the roof of the cabin of the truck.  He became aware of the bumpiness of the ride in this truck with which he was not familiar, although he said he had driven it before.  He normally carried a video camera with him and this was attached (presumably via a lanyard) around his neck.  He operated the video recording camera with his left hand.  He states that in the course of what was a shorter than usual round he would have hit his head on the cabin roof four to five times.  He was unable to reduce the bumpiness of the seat by operating any of the control mechanisms situated on the right hand side of the driver’s seat.

9. On returning to the Clayton depot on completion of the round he filled out the company’s day book the purpose of which was to record any adverse events, injuries to drivers or faults with the vehicles.  Completion of the day book was compulsory.

10. Having reported the trauma to his head, Mr Allen visited his general practitioner and on 4 June 2014, accompanied by Mr Gary Barns, attended the Interhealth Medical Clinic where he was seen by Dr Rob Schoenmakers.  His own general practitioner had ordered a CT scan of his neck and prescribed Tramadol for pain control.  He was certified unfit for work by his general practitioner but this was disputed by his employer hence the visit to Dr Schoenmakers. 

11. Dr Schoenmakers noted episodic long-standing neck pain radiating to the left shoulder with an acute exacerbation related to being launched upwards against roof. Physical examination revealed a one third reduction in the range of movement of Mr Allen’s cervical spine, tenderness over the second cervical vertebrae and the lower left cervical facet joints, but no neurological deficit except for slightly decreased sensation over the medial left two fingers.  Dr Schoenmakers made a diagnosis of left cervical radiculopathy following a traumatic neck injury. 

12. The CT scan performed on 4 June 2014 revealed severe bilateral C5/C6 foraminal narrowing secondary to a large disc-osteophyte complex. 

13. Mr Allen was given a WorkCover certificate by Dr Schoenmakers for a period of two days from 4 June 2014 until 6 June 2014 at which time he was to be reviewed.  Dr Jayarajan of the Casey Super Clinic, Mr Allen’s normal medical group had provided a WorkCover certificate stating he was unfit for any duties between 3 June and 17 June 2014 and after a review on the latter date it was extended to 3 July 2014 and then to 15 August 2014.  Mr Allen has not worked for Transpacific since the date of the claimed injury. 

14. Mr Allen was treated with analgesics including, OxyContin, morphine like dermal patches and the anti-epileptic drug Gabapentin which has been shown to be effective in neuropathic pain.  He had physiotherapy and was referred to a neurosurgeon in a public hospital for an opinion.  Despite his injury and its treatment Mr Allen was keen to resume work for financial reasons.  He attended his local general practitioner and was certified fit to resume work on 21 July 2014.  The certification was provided by Dr Ghattas (Exhibit R3). The treating physiotherapist, Ms L Friend also stated he was fit to resume work as all symptoms and signs had resolved. 

15. Transpacific having received the certification asked for an assessment to be performed by the facility nominated doctor, Dr S Turnbull of the Interhealth Medical Clinic.  On 2 August 2014 Dr Turnbull advised that Mr Allen should never drive a truck again given his bilateral C5/6 foraminal stenosis with neural compression, moderate central canal stenosis and his previous history of neck injury.  Dr Turnbull considered Mr Allen fit for office based and other light duties but apparently Transpacific did not have such duties available (T28).  As a result, Mr Allen was retrenched.

16. On 21 August 2014 Mr Allen sought employment assistance through a group known as Zoom Recruitment.  He denied having any medical problems other than a knee injury treated by anterior cruciate ligament (ACL) repair in 2007.  This had attracted his sole WorkCover payments.  Mr Allen obtained employment with Waste Management commencing work on 31 August 2014.  This involved him driving a waste removal vehicle but did not involve him getting in and out of the cabin as he was assisted by two so called runners who shifted any bins or rubbish as necessary.  He remained in this employment until 16 November 2014 and throughout his employment worked up to 52 hours per week.  He ceased working for Waste Management when he sustained a low back injury. The latter responded relatively quickly to conservative treatment with analgesics and physiotherapy.  He also had facet joint injections in his lumbar spine.  A CT scan of the lumbar spine had shown mild disc bulges in the lower lumbar area and some foraminal narrowing but no nerve root compression.  WorkCover payments were applied for. 

17. In early February 2015 Mr Allen obtained another job with KNN Transport (KNN) driving a truck with a trailer which was used for carting topsoil from building sites to a local tip.  The truck was fully automated and he was not required to do any unloading or loading.  He managed this job for up to 30 hours per week while taking OxyContin 20 milligrams three times a day and Lyrica 300 milligrams twice a day.  He found that his pain in the neck and left shoulder region increased progressively.

18. There were discrepancies between the hours Mr Allen claimed he had worked for Waste Management and the hours revealed by his payslips.  According to the instructions given to his solicitor, he had worked at Waste Management for 30 hours on a casual basis, whereas the payslips revealed he had never worked less than 40 hours and frequently the hours per week worked ranged between the high 40s and low 50s.  He denied having given those instructions but further questioning revealed that in fact his wife had completed the paperwork on his behalf.

19. Mr Allen quite freely admitted to having lied to his own doctor and to the physiotherapist, Ms Friend in relation to his symptoms and on examination had faked the normal range of neck movement and a lack of any tender spots so that he could obtain a certificate of clearance and return to some form of work in late July 2014.  He had also received advice and assistance with the paperwork from a Mrs Donaldson. 

20. Currently, Mr Allen says he is able to do the shopping, some washing and folding of clothes, walk his dog for two kilometres per day but avoids heavy lifting or dragging of items.  He continues to take OxyContin and Lyrica and when he has a bout of acute gout he takes a course of prednisolone.  Physiotherapy is provided as necessary.  He has been seen at Monash Medical Centre in the neurosurgical outpatient clinic and is on a waiting list for nerve conduction study relating to his C6 nerve root compression.  It has been suggested that he may need cervical disc surgery. 

21. The Tribunal was provided with and viewed an 80 second video recording of the bumpy movement in the Acco truck on 3 June 2014. The video is of poor quality, reveals that it was raining and displays what seems to be a bumpy ride. The video was set to background music called the Bouncing Song. Mr Allen said the music was a mistake reflecting his computer ignorance.

22. In cross-examination Mr Allen described the Acco truck seat fault as being a return to the preferred position despite his efforts by using the up/down button to pump up the seat.

23. Mr Whybrow elicited considerable information regarding Mr Allen’s familiarity with his usual Dennis Eagle and the Acco model he drove on 3 June 2014. Mr Allen agreed that the controls sited in the seat were similar but not identical.  He agreed that the seats were air-compression seats although he was aware that they actually had a hydraulic actuator.

24. Mr Allen was of the opinion that the malfunctioning in the seat of the Acco was due to an air leak where the tubing was hooked up to the bottom of the seat as he found that the control button would not hold the seat in the position he set it at, that is, he had to keep putting air into the seat from time to time to make the seat go back up as it kept going down.  He felt the actual control knobs were functioning normally.  While the control mechanisms lodged in the side of the driver’s seat were similar in both vehicles, in the newer vehicle more of these were rocker or toggle buttons and the Acco worked on depression and release movements. 

25. Mr Allen was adamant that the seating manual provided by Mr Whybrow was not the one relevant to the seat in the Acco garbage collection vehicle (WRP 035).  Mr Allen was in fact correct and we had been looking at the wrong manual.  Once the correct manual was provided and the actual function of all the buttons identified Mr Allen was somewhat surprised to find that the on/off button that raised the seat was placed were the dampener button was sited in his Dennis Eagle truck, that is, their positions were reversed. 

26. Mr Allen was questioned with respect to the general run sheet that had to be filled in by each driver both before and after the run. It appeared that two or more persons completed this form as Mr Allen’s evidence was that he always ticked a box when answering in the positive or left the boxes blank when answering in the negative. Thus, he was able to identify which portions of the form he had completed and that someone else, who filled in the boxes with a cross, had also used the same sheet.  From the signature on the sheet he believed that his supervisor Mr Gary Barns had refuelled the vehicle and completed the form (Exhibit R11).  On further examination of the defective vehicle and equipment report Mr Allen was able to identify what he had entered, what possibly Mr Barns had entered and noted there was a further entry regarding rubber block suspension which he believed was in the hand writing of the mechanic Craig (Mr Craig Baunton). Craig had also written Adjust Seat properly, I did. Craig later confirmed in his evidence that he had test driven the Acco on 3 June 2014.

    EVIDENCE BEFORE THE TRIBUNAL

    Mr Allen

27. Mr Allen’s evidence before the Tribunal has been summarised under the heading BACKGROUND TO THE APPLICATION. Throughout his oral evidence be it examination-in-chief or cross examination, he repeatedly stated that he was familiar with the seat controls in the Acco truck, that he was wearing his seatbelt at all times when he hit his head on the roof and at no time did he exceed the speed limits.  Mr Allen stated he had not aborted his round after the first knock to his head as to do so could have jeopardised his current employment but more importantly the offer he had received from Transpacific to apply for a five year, $5,000,000 contract as a subcontractor, providing his own truck, collecting recyclable garbage. 

28. While Mr Allen claimed familiarity with the Acco truck which he thought had been at the Clayton depot for up to 12 months he was shown to be in error as the Acco arrived at Clayton on 3 March 2014, underwent checking, following which a new driver’s seat was installed and the seatbelt repaired on 4 March 2014.  There was only a period of three months in which he may have driven the Acco or travelled in it as a passenger. 

    Mr A Aliashkevich

29. Mr Aliashkevich is a neurosurgeon who had seen Mr Allen and provided a report on 7 November 2014 (Exhibit A2) wherein he provided a diagnosis of cervical spinal pain and a C6 nerve root radiculopathy.  The diagnosis was based on Mr Allen’s symptoms and the findings on MRI.  Mr Aliashkevich subsequently provided another report dated 7 July 2015 (Exhibit A3).  Mr Aliashkevich explained to the Tribunal that the radiculopathy was purely sensory giving rise to mild numbness and a sensation of pain in a C6 distribution and there was no muscular or reflex deficit.  He had also detected an ulnar nerve palsy arising at the level of the right elbow. 

30. Mr Aliashkevich was of the opinion that Mr Allen was fit for alternative duties although at the time he had seen Mr Allen, Mr Allen was working up to 52 hours per week. In the course of cross-examination Mr Aliashkevich agreed that Mr Allen had pre-existing cervical spondylosis that had probably been present for some considerable time.  It was to be expected that his symptomology would fluctuate and be recurrent.  The described modes of injury in June 2014 were considered to be consistent with this pattern.  Mr Aliashkevich also agreed that it would be likely that the symptoms arising from this episode would settle in a period of six to eight weeks enabling Mr Allen to once again drive trucks, in this instance for Waste Management. 

31. Mr Aliashkevich was asked to postulate whether a prolonged bumpy ride as opposed to hitting one’s head on the roof of a truck could result in the development of acute neck pain and radiculopathy.  Mr Aliashkevich agreed that this was possible.

32. I asked Mr Aliashkevich whether, based on the MRI, it was possible to determine whether the major abnormality in Mr Allen’s spine resulting in his C6 nerve root compression was the disc prolapse or the presence of a bony osteophyte.  Mr Aliashkevich advised that assessment of osteophytes was better provided by CT scanning than MRI and whilst he had been made aware that Mr Allen had had a CT scan he had not seen it and therefore could not provide an opinion.  The relevance of this questioning related to the known time it takes for a bony osteophyte to develop, that is, a period of years. 

33. Initially Mr Aliashkevich had been of the opinion that Mr Allen might require C6 nerve root decompression and mobilisation.  However, having been informed that when seen at the neurosurgical clinic at Monash Medical Centre in February 2015 there was no evidence of any nerve root compression on examination, he said a surgical approach was not indicated. 

    Dr Dominic Rillstone, general practitioner

34. Dr Rillstone is a general practitioner working for the past nine years at the Casey Super Clinic where Mr Allen has attended for many years.  Dr Rillstone was of the opinion that Mr Allen’s neck and shoulder symptoms had been persistent since June 2014 and perhaps slightly progressive.  The clinic had experienced difficulties in controlling his pain because of adverse reactions to various analgesics such as Tramadol and with other medications producing hallucinations, confusion and ataxia.  The ataxia had resulted in a short term admission to hospital in late 2014 for further investigation.  The ataxia was apparently attributed to the extra-pyramidal side effects of Fentanyl.  Dr Rillstone gave evidence that Mr Allen had developed depression in late 2014 but that this had improved significantly with treatment.  Dr Rillstone was taken through the tendered records of Casey SuperClinic and made comments on these entries where he had attended on Mr Allen.  The clinic had considered Mr Allen’s injuries of June 2014 to have given rise to all his symptoms and therefore attributable to the original injury.  At that time they were not privy to any previous history of neck trauma. 

35. Dr Rillstone had treated Mr Allen for gout and was of the opinion that Mr Allen’s alcohol intake was excessive.  He agreed, on direct questioning, that he had considered that Mr Allen may be developing a chronic pain syndrome and a reliance on OxyContin.  While Dr Rillstone had not himself certified Mr Allen fit to resume work on 21 July 2014, he described Mr Allen as a driven personality who despite symptoms would often undertake the activities that another person would not.

1. Dr Rillstone opined that the deterioration in Mr Allen’s cervical spine was one of degeneration over a period of years, given the CT scan finding of a large osteophyte and the many years required for such a lesion to develop.

   Dr Guatam Khurana

2. Dr Khurana is a neurosurgeon who saw Mr Allen on behalf of the respondent.  Dr Khurana practices at the Epworth Hospital in Melbourne and the East Sydney Private Hospital in Woolamaloo, alternating on a weekly basis in terms of his surgical practice.  Dr Khurana had seen Mr Allen on three occasions providing reports of 14 July 2014, 26 June 2015 and 4 August 2015.  Dr Khurana addressed all of these reports in his oral evidence.

3. When first seen on 26 June 2014 Mr Allen had told him that he had hit his head on the roof of his garbage vehicle four to five times, due to a malfunctioning seat.  Mr Allen had said that this had happened to him on numerous prior occasions as this vehicle’s problems with the seat where well recognised amongst truck drivers.  Mr Allen stated that he had driven the Acco truck previously.  When initially seen Mr Allen was experiencing considerable pain which limited the examination normally conducted by Dr Khurana.  He described his usual range of motion testing but was unable to conduct this in Mr Allen because of his vocalising that he was in pain. 

4. Dr Khurana had been provided with a CT scan report of Mr Allen’s cervical spine but requested a Spect-CT or an MRI scan.  Dr Khurana was aware of Mr Allen’s past history of episodic neck pain dating from 2011.  On his initial assessment of Mr Allen, Dr Khurana thought there was a good case to be argued for relatively urgent neurosurgical intervention to decompress the C6 nerve roots compression.

5. When seen again in May 2015 for the purposes of providing a second report Dr Khurana’s opinion altered as there was a substantial psychogenic or non-physiological overlay in Mr Allen’s presentation.  On the third occasion when he had reviewed Mr Allen’s further progress as reported by others and various investigations Dr Khurana concluded that by the end of July 2014, any injury sustained by Mr Allen in the incident did not appear to be causing any incapacity for work or requirement for medical treatment.  In cross-examination by Mr Carey, Dr Khurana agreed that between his first and second examinations it was possible that Mr Allen had developed some psychiatric problems but as that was not his field of expertise he would not comment further.  Dr Khurana had reached his conclusion in part because of his reading of the reports of the general practitioner and the physiotherapist Ms Friend who stated that:

   ... by 22 July all symptoms and signs had resolved and Mr Allen was fit to resume work. 

6. In response to a question from the Tribunal Dr Khurana said that he did not believe there was any longer an indication for surgery as the likelihood of relieving Mr Allen of his pain was not high. He agreed that a chronic pain syndrome was developing. 

   Mr Ross McDonald – Mechanical Engineer

7. Mr McDonald has a long history of expertise as a mechanical engineer in government postings and in private enterprise.  He has worked in the United States of America and the United Kingdom and between 1995 and 1997 he joined the Australian Defence Industries to help with the development of the Bushmaster vehicle. 

8. At the request of Transpacific Mr McDonald performed an inspection of the Acco truck and submitted a report (Exhibit R14). This inspection was requested on 19 June 2014 some 16 days after Mr Allen’s reported malfunctioning of the seat of this vehicle.  Mr McDonald explained in detail the air compression function of the seat, its design, its shock absorbing abilities and in particular the function of the on/off switch and dampener.  He also explained the differences between the Acco and the Dennis Eagle seat.  In response to questions posed by Mr Whybrow and myself he explained how any leak in the system would affect function; how any obstruction to the air compression line would affect function, although he felt this was not impossible.  He had not had the opportunity to discuss the events of 3 June with Mr Allen.  As explained by Mr McDonald an air-leak in the line to the seat would also produce brake failure and trigger driver alert indicators.

9. Mr McDonald explained that when the dampening control was activated the bounce in the seat was greatly reduced but if it was at a minimum setting bouncing could occur.  When told which actual button Mr Allen had given evidence as to its malfunction, Mr McDonald identified that as not being the dampening control and Mr McDonald could not understand how the seat air volume could fluctuate as described by Mr Allen. 

10. Mr McDonald did not believe it was possible that anyone could hit their head on the roof of the Acco truck if they were wearing a seatbelt. In his examination of the vehicle he had performed a simple test on the seatbelt which he believed functioned normally.  Mr McDonald felt one could only hit the roof of the truck if one was driving without a seatbelt on and driving at over 20 kilometres per hour when hitting a curb full on. 

11. Mr McDonald agreed with Mr Carey that he had not spoken with Mr Allen, nor had he driven the truck along the route described by Mr Allen, although he did  drive the vehicle himself.  Mr McDonald explained that when such a truck was empty one would feel the irregularities in the road surface more acutely and the vehicle would necessarily bounce more than normal.  Mr McDonald did however believe that Mr Allen should have been very familiar with the seat adjustment of the Acco vehicle as this seat had been in service in Australia for many years and that in the Dennis Eagle had only been used by Transpacific for a very short period of time. 

12. Mr McDonald concluded that severe bouncing would only occur if a vehicle such as the Acco was travelling too fast for the particular road conditions and the controls had been inadvertently set incorrectly.  Mr McDonald confirmed that his opinion was given in the belief that the driver Mr Allen was wearing a seatbelt at all times.  However, in the absence of a seatbelt and with minimum dampening of the seat, plus driving too fast it would be possible to hit the ceiling of the cabin with one’s head.  Hitting a curb sufficiently forcefully to produce such an injury would normally result in damage to the vehicle as well as the driver. 

    Dr Shane Richardson, Mechanical Engineer

13. Dr Richardson is a well-qualified mechanical engineer with a Master’s Degree in Military Vehicle Technology and a PhD in Roll-over Protective Structures.  At the request of Transpacific’s solicitors, Dr Richardson had prepared a report in relation to his examination and assessment of the Acco truck in question, having examined the vehicle (registration number WRP 035) on 9 January 2015.  Dr Richardson had not spoken with Mr Allen but had been provided with some information as to Mr Allen’s experiences in driving the vehicle.  Most of Dr Richardson's assessment of the vehicle took part with him  as a passenger.  He agreed that he had not followed the same route as that undertaken by Mr Allen on 3 June 2014. 

14. Dr Richardson provided a very detailed report (Exhibit R17).  Based on the data provided by Transpacific in relation to the events of 3 June 2014, Dr Richardson had concluded that the claimed injuries could not have been sustained in the manner described by Mr Allen. 

15. In extensive cross-examination by Mr Carey, Dr Richardson agreed that the analysis of the so-called Trimble Data, which is an inbuilt recording of the route, speed, stopping and starting etc. of the truck, revealed that at times Mr Allen had driven the vehicle at above the speed limit, however only by one to two kilometres per hour and therefore inconsequential.  Higher readings had on further analysis been shown to be incorrect in that the supposed speed limit in the area was in fact wrongly recorded. 

16. Dr Richardson had concluded that Mr Allen could only have hit his head on the roof of the Acco truck if he was not wearing a seatbelt.  The ridged roof lining was 130 millimetres above the driver’s head, in this instance Dr Richardson’s head, and a speed of greater than 70 kilometres per hour would be required to hit one’s head or in the alternative one would need to hit a curb at, or greater than 60 kilometres per hour full frontal, although the wearing of a seatbelt should prevent any injury. 

17. Dr Richardson referred to the study of Viano D C and Parentaeu C S, entitled Analysis of Head Impacts Causing Neck Compression Injury, Traffic Injury Prevention Volume 9, Issue 2, 2008 in which the authors reported a 15 per cent risk of serious injury between 2.3 metres per second head velocity and 50 per cent risk at 4.2 metres per second but stated that more data was needed in relation to these speeds to clarify the injury risks.  They also stated that many other factors were relevant, including the age and physical condition of the person; the orientation of the neck, head and torso and the location of impact and interface.  Based on this report which was the only relevant scientific document Dr Richardson could find, he had concluded that Mr Allen would have needed to impact the internal truck cabin roof at greater than 0.5 metres per second and less than 2.3 metres per second to sustain a cervical spinal injury.  However this conclusion was based on the premise that Mr Allen was not wearing a seatbelt restraint (Exhibit R17).

18. Dr Richardson was specifically asked by Mr Carey if the bouncing motion or jolting of the seat without the driver hitting there head on the roof of the truck could cause a spinal cervical injury.  Dr Richardson stated there was a paucity of research regarding such a contention and he considered such a mechanism of injury as highly unlikely (Transcript, page 295). He concluded that if the mechanism as described by Mr Carey did in fact occur it must be an extremely rare occurrence.

19. The Tribunal posed questions in relation to the incidence of neck injuries in sudden deceleration situations such as, an underground lift falling 1000 metres and vehicle injuries such as those reported in Afghanistan but Dr Richardson said there was very little in the way of scientific analysis and report of these events. Dr Richardson agreed that an individual with pre-existing cervical spinal disease would be more susceptible to aggravation of their symptoms in relation to the application of G-forces than persons with no pre-existing disease.  

    Mr Brook Layton, Workshop Manager

20. Mr Layton is the workshop manager of Transpacific at their Clayton Depot and has occupied this position for eight years.  He has been a heavy vehicle mechanic for 30 years.  He provided an outline of evidence (Exhibit R19).

21. On 3 June 2014 the operations division of Transpacific had informed him of Mr Allen’s experiences in driving the Acco truck following which he arranged for the truck to be brought into the workshop on the same day and he and Mr Craig Baunton went over the truck, checked it and found no problems other than noticing that the dampener button was in the off position.  In his evidence Mr Layton agreed that the truck in question had been transferred from Bayswater were it had performed hard garbage collection and underwent repairs and the installation of a new seat at the Clayton depot on 4 March 2014. 

22. Mr Baunton and Mr Layton had checked all aspects of the truck. In particular, they had checked the seat and could not find any malfunctioning.  They looked for air-leaks in the seat and broken springs but these were all intact.  They then took the truck for a drive along Clayton Road and Ferntree Gully Road which was part of Mr Allen’s original route on 3 June.  They intentionally drove along bumpy sections of road with the shocker on and off at different speeds and different positions on the road but could not recreate Mr Allen’s reported experiences.  They drove the truck full of waste and the following day empty of all waste. 

23. Mr Allen had stated in his report and his evidence that other drivers had recorded faults in the defective vehicle report book relating to the Acco truck but according to Mr Layton there had not been any reports other than that from Mr Allen.

24. In evidence before the Tribunal Mr Layton said that Cleanaway, as this division of Transpacific is more commonly known, have strict policies that if a truck is unsafe it stays in the yard and that any safety issue identified by a driver results in the truck not being sent out.  The workshop at Transpacific runs from 4:00 am in the morning until 10:30 pm at night, covering several shifts of mechanics.  Mr Layton agreed with Mr Carey that he had not had the opportunity to discuss the incident with Mr Allen and obtain his version of the events of 3 June 2014.

25. Mr Layton clarified Mr Carey’s query regarding an entry of 19 March 2014 which stated air-controls in cab not working.  Mr Layton explained that this related to the air-conditioning not the air-compression supply to the driver’s seat.

26. I asked Mr Layton if it was possible to have a partially open valve-like effect in the air-compression tubing to the seat, to which he responded that the pressure would take a longer time to reach its ideal level and again in response to my question stated they had no means of checking as to whether there was an obstruction in the air-compressor system.  According to Mr Layton, the only other report of problems with the Acco truck had occurred in 2015 after its transfer to Morwell when it was reported that the seat in the Acco truck bounced excessively.  This was found to be due to the so called shocker or dampener button being turned off and once turned on the problem was solved.  This report had occurred in the early hours of the morning by virtue of phone connection between the driver and the workshop and had been corrected by advice given by telephone.  Mr Layton advised that all drivers had his telephone number and while he started work at 6:00 am and finished at 6:00pm, he was on call 24 hours a day and readily contactable by all of Transpacific’s drivers.

    Mr Gary Barns, Operations Supervisor, Clayton Depot

27. Mr Barns has been the operations supervisor dealing with Mr Allen for the past two years and has been employed by Transpacific at their Clayton depot for eight years.  He explained that all of Transpacific’s drivers check their truck when they arrive for duty and if anything is amiss the workshop is contacted and the truck inspected.  At the end of the work day the driver performs a further check of the vehicle and completes a vehicle report.  If there is any defect detected he takes the report to the workshop.

28. On 3 June 2014, Mr Barns said he had been telephoned by Mr Allen who reported that he had hit his head on the roof of the Acco truck on several occasions.  Mr Barns’ evidence was that he told Mr Allen to ring the workshop and they would come out to him and inspect the truck or he could bring it into the workshop.  Mr Barns denied that he had said suck it up princess in response to Mr Allen, as attested by Mr Allen in his evidence. 

29. On his arrival at the Clayton depot Mr Allen walked into Mr Barns’ office and asked for the injury book.  Mr Barns notified the workshop that the vehicle may have a defect and also telephoned the branch manager.  He did not inspect the vehicle himself as he is not a qualified mechanic.

30. Mr Barns said that Mr Allen’s work performance had always been satisfactory or good but that he appeared to have mood swings.  Mr Barns had noted that he was easily upset, referred to Mr Allen as varying from day to day and described by him as good Brian and bad Brian.  Mr Allen would ring Mr Barns during his rounds and make comments such as I’ve had enough of this and I’m just over it and then hang up.  He would not explain what he meant by these statements.

31. In accordance with company policy Mr Barns had driven Mr Allen to the Interhealth Medical Clinic on 4 June 2014 in order to see the facility preferred doctor.  Mr Barns had sat in the waiting room while Mr Allen was examined and was then called into the doctor’s office to be told of any work restrictions that would be in place and to provide information about light duties that might be available. 

32. In response to my questions Mr Barns said that Mr Allen was always moody during the three years he had known him.  In regard to Mr Allen having been offered a contract as a subcontractor, Mr Barns was not privy to who had received such offers but was aware that Transpacific was seeking expressions of interest from subcontractors. 

    Mr Craig Baunton, Diesel Mechanic

33. Mr Baunton has been a qualified diesel mechanic since 1989 and has worked for Transpacific at their Clayton depot twice; the latest period being for the past two and a half years.  Mr Baunton was shown the relevant defective vehicle report (DVR, T9) and asked to identify his entries in this report.  Mr Baunton had noted that this particular Acco truck had a rubber block suspension which he explained was a particular type of suspension which feels different to several other varieties used in other trucks in the depot. 

34. Mr Baunton had performed the test drive inspection of the vehicle on 3 June 2014. When he first sat in the seat of the Acco he noted it was very bouncy, he explained that he had noted that the dampener control, that is the button with the shock absorber symbol on it was on the down position and as such, there was no or less air in it than was normal.  He found the seat to be otherwise normal with no defect and could not detect any leaks in any of the air-compression circuits.  His interpretation was that all was needed was more air in the seat to make it less bouncy and this he had done and had written in the DVR:  Adjust the seat properly. I did.

35. Mr Baunton road tested the Acco truck with respect to brake function and excessive bounce, driving it around the block near the Clayton depot for a distance of approximately one kilometre.  Mr Baunton does not accept that it was possible to hit one’s head on the Acco truck’s roof if driving with the seatbelt on. 

36. Mr Baunton did not discuss the perceived vehicle problems with Mr Allen at any time.

    RELEVANT LEGISLATION

37. The Safety, Rehabilitation and Compensation Act1988 (the SRC Act) defines injury and disease in sections 5A and 5B of the SRC Act.

    5ADefinition of injury

    (1)In this Act:

    injury means:

    (a)a disease suffered by an employee; or

    (b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or

    (c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;

    but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.

    (2)For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:

    (a)a reasonable appraisal of the employee’s performance;

    (b)a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;

    (c)a reasonable suspension action in respect of the employee’s employment;

    (d)a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;

    (e)anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);

    (f)anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.

    5BDefinition of disease

    (1)  In this Act:

    disease means:

    (a)an ailment suffered by an employee; or

    (b)an aggravation of such an ailment;

    that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.

    (2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:

    (a)the duration of the employment;

    (b)the nature of, and particular tasks involved in, the employment;

    (c)any predisposition of the employee to the ailment or aggravation;

    (d)any activities of the employee not related to the employment;

    (e)any other matters affecting the employee’s health.

    This subsection does not limit the matters that may be taken into account.

    (3)In this Act:

    significant degree means a degree that is substantially more than material.

1. Liability to pay compensation to an injured employee is provided by section 14 of the SRC Act and states:

   14Compensation for injuries

   (1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

   (2)Compensation is not payable in respect of an injury that is intentionally self‑inflicted.

   (3)Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self‑inflicted, unless the injury results in death, or serious and permanent impairment.

   SUBMISSIONS

2. At the commencement of the hearing Mr Carey sought to delineate the jurisdiction of the Tribunal in the matter. He contended that the Tribunal had jurisdiction only to address and determine the question of liability under s 14 of the SRC Act. (Re Liu and Comcare [2004] AATA 617). As the respondent had not made a reviewable decision with respect to s 16 and s 19 of the SRC Act the Tribunal had no jurisdiction to address these matters. In addition, Mr Carey submitted that the Tribunal could not impose a time limitation in relation to the applicant’s incapacity and medical treatment, should the Tribunal find liability for compensation under s 14 was the correct and preferable decision.

3. The respondent had in its Statement of Facts and Contentions, put forward three arguments, the first of which was that the events outlined by Mr Allen as giving rise to his injury did not occur. In the alternative it was submitted that if the Tribunal did in fact find in Mr Allen’s favour with respect to s 14 liability his incapacity and need for medical treatment had expired by 21 August 2014 when he commenced work for Waste Management.

4. The Tribunal was asked to rule on the extent of its jurisdiction and did so at limiting jurisdiction to consideration of the respondent’s liability in accordance with s 14 of the SRC Act. Mr Whybrow accepted that this was in fact the limit of the Tribunal’s jurisdiction. Both counsel addressed this question again with the same conclusions at the end of their submissions.

5. Counsel also agreed that the nature of the claimed injury should be considered under the definition of s 5B of the SRC Act in that, the condition is an ailment which has been aggravated according to the claim by the nature of Mr Allen’s work. The Act requires that any contribution by employment must be of a significant degree.

6. Mr Carey contended that there was no evidence supporting Mr Allen having experienced recent neck pain before he commenced his shift on 3 June 2014.  According to his claim form he first experienced pain after hitting his head on the roof of the truck at 3:30 am and reported it to his supervisor Mr Barns at approximately 7:00 am.  Mr Carey argued that the only physical biochemical forces that could have been operating would have been those incurred in the course of Mr Allen’s employment on the day.  It was contended that Mr Allen had nothing to gain by lodging a fraudulent claim for compensation. 

7. Despite his evidence to the contrary, Mr Carey submitted that it was open to the Tribunal to find that Mr Allen was not wearing his seatbelt, particularly as the Road Traffic Authority approved of drivers collecting garbage, be it hard or recyclable, not wearing a seatbelt if they were travelling at less than 15 kilometres per hour.  Should this be the case it would be due to inadvertence and not amount to wilful misconduct.  Similarly, hitting potholes, curbs and speed bumps may be careless driving but did not, based on precedent amount to other than careless driving and serious and wilful misconduct.  Mr Whybrow accepted Mr Carey’s argument that this was an accepted principle of law. 

8. Mr Carey contended that the bounciness of the driver’s seat as portrayed in the video recording had resulted in biomechanical forces applied to Mr Allen’s neck at different angles of the torso to the neck alignment as he simultaneously drove the truck and fiddled with the seat controls.  As the seat control sequence in the Acco truck differed to those of the Dennis Eagle vehicle, the driver could make a mistake causing the seat to be bouncy and lead to an aggravation of the known pre-existing cervical spondylosis.

9. Dr Aliashkevich had given evidence that such bounciness alone, would be capable of causing symptoms in a sufficiently susceptible spine.  It was contended that the subsequent course of Mr Allen’s symptoms over the ensuing weeks indicated an injury to which employment had made a significant contribution.

10. Mr Carey accepted Mr Allen had admitted that he lied to his general practitioner and physiotherapist in late July 2014 in order to obtain a clearance enabling him to return to work.  In contrast he had not lied about or concealed his pre-existing cervical spinal disease.  Since 3 June 2014 Mr Allen had remain symptomatic suffering from neck pain necessitating ongoing analgesic medication. 

11. Mr Whybrow contended that the Tribunal must reach its decision based on the evidence before it and given Mr Allen’s admission of lying to his employer and his treating practitioner and physiotherapist on and after July 2014, the Tribunal should only rely on that of his evidence that was corroborated. 

12. Mr Whybrow stressed that Mr Allen’s evidence had been that he had his seatbelt on at all times, that he hit his head on the Acco truck’s roof on four or five occasions while wearing his seatbelt and insisted that given his many years’ experience as a heavy vehicle driver he knew how to adjust the seat and to suggest otherwise is ridiculous.  Mr Whybrow noted that all of the expert evidence had been that it was impossible for Mr Allen to hit his head on the roof of the Acco truck if he had been wearing his seatbelt, even if speeding or forcibly hitting a curb. 

13. Mr Whybrow contended that not only had Mr Allen lied to his general practitioner and physiotherapist in July 2014 in order to obtain a clearance for work but he had lied to his legal representative and to Dr Aliashkevich regarding the hours he worked for Waste Management as he had told Dr Aliashkevich that he worked one to three days per week as a casual employee, when his payslips revealed he had never worked less than 40 hours per week and frequently his hours worked per week ranged between the high 40s and low 50.  Mr Allen had attributed the provision of misinformation to his lawyers as resulting from his wife filling out forms on his behalf and being unaware of the actual hours he worked whilst the history he reportedly gave to Dr Aliashkevich regarding his hours of work with Waste Management had been incorrectly reported by the doctor who had made a typographical error. 

14. Mr Whybrow stressed the evidence given by Mr Allen that he had ceased work at Waste Management because of a lack of work when in fact he was on WorkCover for a lumbar spinal injury and that he ceased work at KNN due to the onset of wet weather, there being no work in winter, mate but on neither occasion had he claimed he ceased because of neck pain. 

15. Mr Whybrow did not pursue at length the original alternative contention that Mr Allen had exhibited serious and wilful misconduct.  He did draw the Tribunal’s attention to Mr Allen’s admission (Transcript, page159) that it was a Transpacific safety rule that drivers where not to drive a truck that was dangerous and had admitted that he had not followed that rule on 3 June 2014, despite having recognised and later reported what he considered a fault in the vehicle. 

    TRIBUNAL’S DELIBERATIONS

16. The primary issue before the Tribunal is whether or not Mr Allen injured his cervical spine on 3 June 2014 by hitting his head four to five times on the roof of the Acco truck he was driving and that he did so because of a fault in the seat of the vehicle.

17. Mr Allen has insisted that his head impacted with the roof of the truck on four to five occasions during his collection of recyclable garbage on 3 June 2014.  He also insists that he was wearing his seatbelt at all times, that he did not exceed the speed limits and that he did not have any major impact in the form of a collision with a curb or the like although he did provide evidence that some of the episodes of striking his head on the roof occurred going over speed bumps or gutters.  Mr Allen has postulated that the defect in the seat of the truck he was driving was that of an air leak between the compressor and the air-intake inlet in the seat.

18. The respondent has denied liability as no fault has been detected in the Acco truck by the respondent’s very experienced mechanics and workshop staff or by independent expert mechanical engineers. 

19. Mr Allen has a documented history of entries relating to past neck injuries in his medical records on 30 November 2011, 12 April 2013.  The Casey Super Clinic notes of 19 July 2014 state that Mr Allen had a CT scan of his neck in 2011 and again in 2013 for work related neck injuries. An entry dated 9 November 2012 records a two to three day history of neck pain with paraesthesia (pins and needles) in Mr Allen’s left hand involving the medial one and half of his fingers (Exhibit R2). 

20. On 21 January 2014 the notes record Mr Allen had developed right elbow pain after pulling a recyclable waste bin and this was diagnosed as golfer’s elbow (epicondylitis). On 30 April 2014 Mr Allen consulted his general practitioner having hit his left elbow on an obstacle at home resulting in pain in the elbow and pins and needles radiating down his forearm to the level of the left thumb.  His general practitioner made a diagnosis of ?nerve irritation (Exhibit R2). 

21. Following the events of 3 June 2014 relating to the bumpy ride in the Acco truck, Mr Allen’s general practitioner made a diagnosis of cervical radiculopathy.  This diagnosis was later confirmed by two neurosurgeons Dr Aliashkevich and Dr Khurana, who based on the history provided by Mr Allen and the CT and MRI findings of bilateral C6 nerve root compression due to foraminal stenosis, considered this diagnosis appropriate.  Neither neurosurgeon was aware of the past history of paraesthesia in both right and left upper limb present prior to 3 June 2014.  Both Dr Aliashkevich and Dr Khurana confirmed in their evidence before the Tribunal that the radiculopathy was sensory only.

22. More recently Mr Allen has been assessed at the neurosurgical clinic at Monash Medical Centre.  On his first visit he was seen by the Registrar who recorded symptoms in both Mr Allen’s right and left hands as referred to above and appears to have considered this to be a sensory radiculopathy although nerve conduction studies were suggestive of compression of Mr Allen’s right ulnar nerve at the elbow.  In consultation with the consultant neurosurgeon, Associate Professor Goldschlager a nerve root injection to the right C6 nerve root was to be undertaken using a combination of steroids and local anaesthetic. 

23. Associate Professor Goldschlager reviewed Mr Allen on 19 May 2015, noting that the C6 nerve root injection was of no benefit whatsoever with not even a local anaesthetic effect and on review of Mr Allen’s symptoms, concluded that his main problem was pain localised to his left elbow, associated tenderness and signs of a ulnar nerve neuropathy at the cubital fossa level.  Arrangements were made for an MRI scan of Mr Allen’s elbow and nerve conduction studies on the left side.  These appear not to have been performed as yet. 

24. The medical evidence as to whether Mr Allen has a radiculopathy is conflicting with the most recent neurosurgical opinion favouring bilateral ulnar nerve lesions at the elbow level.  The question as to whether these are peripheral lesions or relate to Mr Allen’s known cervical spondylosis remains unresolved and impacts on the opinions of the two neurosurgeons given for medico-legal purposes and also in terms of any treatment that Mr Allen may require.

25. The clinical records of the Casey Super Clinic throw further doubt on Mr Allen’s evidence in that they differ in relation to the evidence given regarding his work commitments at Waste Management and KNN.  Certainly the entry of 30 April 2015 indicates that Mr Allen had ceased work for KNN as he found driving the truck on a construction site increased his neck pain, albeit on a temporary basis.  He indicated he could not continue in this employment.  This is contrary to his evidence before the Tribunal when he said he ceased work at KNN because construction had ceased with the onset of winter.  

26. The notes also reveal that Mr Allen has other serious medical problems which may have impacted on his ability to work as he was advised to start treatment for viral hepatitis. 

27. The Tribunal has major concerns as to the accuracy of the evidence given by Mr Allen regarding his claimed work related injury and cannot be satisfied that the injuries he claims were sustained in the manner he has described.

28. The investigation of the possible faults relating to the Acco truck Mr Allen drove on 3 June 2014 have been in the Tribunal’s opinion, very thorough at the Transpacific workshop level and the subsequent examinations and testing of the vehicle by Mr Ross McDonald and Dr Shane Richardson.  All failed to reveal any defect in the operation of the near new seat in the Acco truck.

29. The Tribunal has considered the hypothesis proposed by Mr Carey that in fact Mr Allen was not wearing his seatbelt, was confused as to the seat control buttons function and injured his cervical spine by either hitting the truck roof or sustaining biomechanical forces secondary to the bouncy ride and considers such a mechanism to have been possible. However it is impossible to ignore Mr Allen’s sworn testimony that he wore his seatbelt at all times and was completely familiar with the seat controls.

30. The Tribunal is unable to find that Mr Allen’s injury arose out of his employment with Transpacific. The Tribunal affirms the decision under review.

103.    I certify that the preceding 102 (one hundred and two) paragraphs are a true copy of the reasons for the decision herein of:

104.    Miss E A Shanahan, Member

[sgd]........................................................................

Associate

Dated 16 October 2015

Date of hearing	5 - 7 August 2015
Counsel for the Applicant	Mr Mark Carey
Solicitors for the Applicant	Zaparas Lawyers
Counsel for the Respondent	Mr Steve Whybrow
Solicitors for the Respondent	HBA Legal

Appendix

A1	Applicant's Statement of Evidence and attachments dated 10/2/15
A2	Mr Aliashkevich's report of 7/11/2014
A3	Mr Aliashkevich’s report of 7/7/2015
A4	Report of Dr Rillstone dated 9/2/2015
A5	Report of Dr Rillstone dated 9/7/2015
A6	Affidavit of Lara Boulom, solictor for the Applicant
R1	T-Documents
R2	Casey Super Clinic Notes from 2005 to 26/11/2014
R3	Certificate of Dr Ghattas dated 21/7/14
R4	Injury book entry - 4/4/14
R5	Documents provided by Zoom Recruitment
R6	Reports of Lisa Friend, physiotherapist, dated 22 and 28 July 2014
R7	Letter from Zaparas Solicitors to Transpacific
R8	Email from Lara Boulom to Claire Tota dated 23 July 2015
R9	Four photographs of Dennis Eagle truck usually driven by the Applicant when working for Transpacific
R10	Photos of Acco truck probably driven by the Applicant
R11	Run sheet dated 3/6/14
R12	Casey Super Clinic notes from 7/12/14 to 30/06/2015
R13	Report from Dr Jonathan Hall (Monash Medical) of 10/2/15 - pre-hearing documents
R14	Report of Ross McDonald regarding Acco truck
R15	Report of Dr Khurana dated 26/6/2015
R16	Letter from R to Dr Khurana and Dr Khurana's medical report of 4/8/15
R17	Report of Dr Shane Richardson - R17A is the corrigendum to the minor typo in the report
R18	Activity Report (Trimble) 3/6/2014, 9 hours, 59 minutes
R19	Outline of evidence of Brook Layton
R20	Repair and Service History Jan to June 2014