Re Liu and Comcare

Case [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…

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Details
AGLC
Re Liu and Comcare [2015] AATA 808
Case
[2004] AATA 617
Decision Date

CaseChat Overview and Summary

The case of Re Liu and Comcare was brought before the court involving the parties Mr Brian Allen, a truck driver, and Transpacific, his employer. Mr Allen was claiming compensation for an alleged injury sustained during his employment. The dispute centred around whether Mr Allen's injuries were a result of the accident or an exacerbation of a pre-existing condition. The matter was heard in the Administrative Appeals Tribunal (AAT).

The primary legal issues addressed by the court were whether Mr Allen's injuries were caused by the incident on 3 June 2014 and whether Transpacific was liable for compensation. Additionally, the court needed to consider whether Mr Allen's pre-existing condition contributed to the injuries he claimed to have sustained.

The court carefully examined the evidence presented by both parties, including Mr Allen's testimony, medical reports, and statements from Transpacific's personnel. The court found that Mr Allen's familiarity with the truck was questionable, as he had only had limited experience with the specific model involved. Moreover, the court noted that the truck had only been at the depot for a short period before the incident. The court also considered the medical evidence, which indicated that Mr Allen had a pre-existing condition that could have contributed to his symptoms. The court concluded that the evidence did not sufficiently support that the incident caused Mr Allen's claimed injuries, or that Transpacific was liable for compensation.

In light of the findings, the court dismissed Mr Allen's application for compensation. The court's decision was based on the insufficient evidence linking the incident to Mr Allen's claimed injuries and the presence of a pre-existing condition that could have contributed to his symptoms.

Orders

Orders of the court

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Background

Background to the litigation

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 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. 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. 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. 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. 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.

Evidence

Evidence Before The Court

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 TRIBUNALMr Allen 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. 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 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. 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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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 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. 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. 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. 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. 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.