Sednaoui v Amac Corrosion Protection Pty Ltd
[2016] VCC 1262
•2 September 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-14-02904
| JUSTIN SEDNAOUI | Plaintiff |
| v | |
| AMAC CORROSION PROTECTION PTY LTD (ACN 005 052 844) | Defendant |
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JUDGE: | HIS HONOUR JUDGE O’NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16, 17 and 18 August 2016 | |
DATE OF JUDGMENT: | 2 September 2016 | |
CASE MAY BE CITED AS: | Sednaoui v Amac Corrosion Protection Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1262 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to lower spine – pain and suffering and economic loss – whether injury occurred in the course of employment – credibility of the plaintiff – acceptance of WorkCover claim by insurer and whether and to what extent that acceptance constitutes an admission as to causation
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b)
Cases Cited:Ansett Australia Ltd v Taylor [2006] VSCA 171; Transport Accident Commission v Florrimell [2013] VSCA 247; Fokas v Staff Australia Pty Ltd [2013] VSCA 230; Bedeux v Transport Accident Commission [2016] VSCA 127; Ifka v Shahin Enterprises Pty Ltd [2014] VSCA 8; Cairns v Trowelcoat Pty Ltd [2014] VSC 129; Mert v Lawrence (Vic) Pty Ltd [2016] VSC 348; Raeburn v Tenix Defence Systems Pty Ltd (Ruling No 7) [2006] VSC 390
Judgment: The plaintiff’s application is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Hore-Lacy SC with Mr A Coote | Zaparas Lawyers |
| For the Defendant | Mr P D Elliott QC with Mr D McWilliams | Hall & Wilcox |
HIS HONOUR:
Preliminary
1 The plaintiff, Mr Sednaoui, alleges he injured his lower back over the course of his employment with the defendant, Amac Corrosion Protection Pty Ltd (“Amac”), in particular, on 14 December 2011, when he was lifting a heavy metal anode with a co-worker. He says he reported the injury the following morning, but remained at work. The defendant contests there was any report of the incident, either to fellow employees or medical practitioners.
2 Mr Sednaoui says, in 2012, he continued to experience pain in his lower back and had flare-ups from time to time. In August 2012, he went to see his general practitioner, Dr Isaacs, and was given a medical certificate and prescribed pain-relieving medication. He ceased work in October 2012, he says, because of a significant episode of back pain.
3 From that time, Mr Sednaoui has received conservative treatment and has not returned to any form of employment. He claims a range of sporting, recreational and domestic activities have been lost or curtailed.
4 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injuries suffered over the course of Mr Sednaoui’s employment, and, in particular, on 14 December 2011. The body function said to be lost or impaired is the lumbar or lower spine.
5 In addition, Mr Sednaoui claims to have suffered a permanent severe mental or permanent severe behavioural disturbance or disorder in the nature of a Major Depressive Disorder; alternatively, a Chronic Adjustment Disorder, although this aspect of the application was not pursued in final addresses.
6 The application is thus brought under ss(a) and ss(c) of the definition of “serious injury” contained in s134AB(37) of the Act and leave is sought in respect of pain and suffering and loss of earning capacity.
7 The plaintiff and two of the defendant’s managers, Mr Mark Rigg and Mr John Pike, were the witnesses called to give evidence and be cross-examined. In addition, affidavits of the plaintiff, his sister and mother, those of Mr Rigg and Mr Pike, various WorkCover documents and medical and radiological reports were tendered into evidence. I shall not refer to all of that material in the course of this judgment but, rather, those parts of the evidence, and reports, which appear to me to be most relevant and which I have relied upon in coming to the conclusion referred to later in this judgment. In particular, it is unnecessary for me to analyse the opinion of the medical practitioners in any detail. .
8 The statutory scheme set forth in the Act which prescribes and regulates applications of this nature, and the principal authorities of the Court of Appeal are well known, and it is unnecessary for me to revisit the various relevant sections and those authorities.
9
The real focus of the application was whether the injury sustained to
Mr Sednaoui’s lower spine occurred in the manner described in his affidavits and, in particular, whether it occurred in the course of his employment with Amac.
Relevant background, including other back injuries
10 Mr Sednaoui was born in 1981 and is now thirty-five years old. He left school in Year 10 and started a course as a boilermaker. He worked in various other areas of manual employment including as a cleaner, waiter, bartender and as a factory worker.
11 Mr Sednaoui started work with Amac in 1999 on a casual basis and remained, initially, until November 2001. He returned in 2009 and worked fulltime. The work was heavy and required him, amongst other things, to lift and move heavy metal anodes around the work premises.
12 According to his first affidavit,[1] Mr Sednaoui said that in about July 2009, he was lifting a heavy vice when he sprained his back. He says he went to his doctor and that after about a week he did not have any pain or discomfort in his lower back and returned to normal duties. He says he made a full and complete recovery from the incident.[2]
[1]Plaintiff’s Court Book (“PCB”) 17
[2]PCB 17
13 An incident report was completed,[3] which said:
[3]PCB 187
“22-7-9 9.30
Friday Morning 8.00
Justin spoke to me this morning about hurting his back late yesterday afternoon while lifting a steel vice with Chris. He said he had lifted it awkwardly and felt a pain in his back (lower).
I suggested that he get it looked at by a doctor before continuing with work. I also asked him to contact us after speaking to the doctor.
Monday off –
Tuesday morning. Justin return to work, I asked him how he was and how he was feeling. He said fine. I said ok take it easy and tell me if you have any pain or problem.
Tuesday afternoon 4.30
I asked Justin how he was,
Better than yesterday.
Had discussion with him about lifting correctly.”[4]
[4]PCB 187
14 There was an entry, dated 18 July 2009, in the clinical notes from the Belvedere Park Medical Centre where Mr Sednaoui attended:
“Was lifting heavy vice with fellow worker on Thursday. Walking with back slightly rotated. Felt pain immediately on putting the vice (45Kg) down and has not been comfortable since. Back very restricted if moves away from the vertical. No sciatic radiation but local spasm and some assymmetry (sic) of the spinal curvature. Needs rest and then physio. Treat with meds as below for comfort.”[5]
[5]PCB 184
15 There was no further reference to the incident or injury in the clinical notes.
16 Further, Mr Sednaoui says, in June 2011, he was helping a friend shift furniture when he felt back pain. He went to his doctor and after several days did not have any pain or discomfort in his lower back. Again, he says he made a full and complete recovery.[6]
[6]PCB 17
17 In mid-2010, the clinical notes also referred to Mr Sednaoui hurting his back at work. Again, the pain resolved and he said the incident did not cause him any ongoing difficulty.
18 On 27 June 2011, there is a further entry:
“URTI. Resolving. W/C 23-27/6/11. Hurt lower back helping mate shift furniture. Good ROM, no sign of disc prolapse.”[7]
[7]PCB 183
19 According to Mr Sednaoui's further affidavit,[8] he had a number of other incidents of lower-back pain. In 2000, he hurt his back while playing soccer. He went to his general practitioner and had a few days off work. He said the pain resolved within a short time.
[8]PCB 30
20 The general practitioner’s clinical notes indicated Mr Sednaoui injured his back in a motor vehicle accident in 2004. Mr Sednaoui said he did not recall the incident. The clinical notes recorded “no serious injuries”.[9]
[9]PCB 185
21 On 6 August 2012, the following appears in the clinical notes:
“Flare-up of low back pain. First happened 6 months ago when carrying heavy weight with the boss, who let go.
No sign of disc prolapse. Some loss of lumbar lordosis and restricted movements.”[10]
[10]PCB 182
22 According to the affidavit of the defendant’s general manager, Mr Rigg,[11] on 6 August 2012, he received a telephone call from Mr Sednaoui’s mother to inform him that Mr Sednaoui had hurt his back on the weekend and was seeing a doctor. She said he had hurt himself on Friday night. When he arrived at work on 7 August 2012, Mr Rigg said Mr Sednaoui told him he had injured his back while playing with his niece.[12] This issue provoked a response from Mr Sednaoui in his affidavit sworn 11 August 2016. He said that his mother had called work as it was his birthday on 6 August 2012 and he wanted to take the day off. He said he went to his general practitioner to obtain a medical certificate to enable him to get paid for that day. When he went to work the following day, he “just said the first thing that came into my head, which was that I hurt my back when playing with my niece”.[13] He said further, that at some time during 2012, he did experience a temporary flare-up of back pain when he caught his niece when she was diving onto a couch. He said he already had lower back pain. The incident occurred sometime after the incident of 14 December 2011.
[11]Defendant’s Court Book (“DCB”) 102
[12]See diary notes of Mr Rigg – DCB 110
[13]PCB 47
23 This episode would appear to coincide with the entry in the general practitioner’s clinical notes of 6 August 2012.
24 Mr Sednaoui was cross-examined on the point.[14] He said his explanation that he had hurt his back playing with his niece was just an excuse.[15] When he was taken to his affidavit which referred to the incident with his niece when he hurt his back,[16] he said that did occur at some time after the December 2011 incident. However, in September 2015, Mr Sednaoui was before this Court when this application first came on for hearing, and said, in answer to a question in cross-examination, that he had never played with his niece and that the incident was a lie.[17]
[14]Transcript (“T”) 22
[15]T23, L8
[16]PCB 47
[17]Transcript from the first proceeding – T34, L3-6
25 The defendant’s Register of Injuries was produced,[18] and included an injury said to be reported on the 9 August 2012. The Register indicates the date of the injury was 31 July 2012 and related to Mr Sednaoui’s lower back. It was said to be an “aggravation of existing injury” (emphasis added).[19] The cause was said to be “trying to complete job with not enough assistance”.[20] The document is signed on 28 August 2012. Mr Sednaoui was said to be absent from employment on 6, 7 and 8 August 2012. Mr Rigg recorded:
“This injury report is for a slight strain on Justin’s lower back, he worked the rest of the week 1–3 AUG and did not mention the injury to anyone until Monday 6th August.
Justin reported to me on Mon 6th Aug that on Fri 3rd AUG in the evening he hurt his back playing with his niece.”[21]
[18]DCB 114-115
[19]DCB 114
[20]DCB 114
[21]DCB 115
26 Mr Sednaoui said that in the workplace, he encountered difficulties including being the subject of racist comments by the factory manager and other workers. He said on four occasions he was shot by an air compressor gun which caused injuries to his forearms, collarbone and eye.[22]
[22]PCB 31
27 Mr Sednaoui has suffered other unrelated injuries while in the employment of Amac, including a cut to his thumb, and an eye injury.
28 According to Mr Sednaoui’s affidavits, he enjoyed a range of recreational activities, including BMX bicycle riding, abseiling, jet skiing and long walks. He socialised frequently with friends and was able to assist his mother and sister with some domestic duties.
The injury arising from the December 2011 incident and its consequences
29 In his affidavit and the histories to most doctors, Mr Sednaoui claims that on or about 14 December 2011, he was carrying a heavy metal object called an anode, weighing more than 50 kilograms, with the factory manager, Mr Pike. He says Mr Pike suddenly dropped his end of the anode onto a table. This took him by surprise and he felt immediate pain in his lower back. He kept working for the remainder of the day. He did not seek any medical treatment. The incident was not recorded in the Injury Register as Mr Sednaoui claimed he was angry and “totally forgot”.[23]
[23]T40, L22
30 According to a history provided to Dr Clayton Thomas:
“He told me that he sustained an injury at work on 14 December 2011. He was lifting a piece of metal, lifting with another worker. He was working at a foundry. He had been working there since 2009. In any case, he was lifting this piece of metal weighing approximately 50 kg. The worker he was working with was upset and threw the piece of metal and this caused him to fall to the ground. He felt two pops from his back. He fell onto the concrete. He could not get up. When he tried to get up he was screaming. He had to crawl to a sidewall in order to get up … He took some Panadol but it did not help him. He then saw his local doctor. He was given anti-inflammatories. An MRI of his lumbar spine. Although he was initially able to return to work the pain worsened.”[24]
[24]PCB 102
31 In cross-examination, Mr Sednaoui agreed this was the history he gave, and that it was accurate, save that he did not see his local doctor until “later on”.[25] He accepted he did not see a doctor until nine or ten months later.[26]
[25]T34, L28
[26]T35, L19
32
Mr Sednaoui said the pain in his back gradually got worse. He reported the incident the next day. At times he was limping. He said he told co-workers, including Mr Rigg and Mr Pike, about the pain in his lower back and left leg on numerous occasions throughout 2012.[27] He said, on one occasion he told
Mr Rigg and Mr Pike that he was going to tell the owner of the company, Hillary, about his lower back pain and about what had occurred, but they said that if he spoke to Hillary, he would not have a job to come back to.[28] In evidence, both Mr Rigg and Mr Pike denied any such conversation.
[27]PCB 42
[28]PCB 42
33 In February 2012, Mr Sednaoui was reprimanded for his work performance. It was said that on at least six occasions there were discussions about his performance and its impact upon the company. The memorandum was signed by Mr Sednaoui.[29]
[29]DCB 132
34 Mr Sednaoui remained at work undertaking the same heavy duties after December 2011 through until October 2012.
35 In October 2012, Mr Sednaoui said he was bending down at home to put on his socks and felt “excruciating pain in my low back”.[30] He said he could hardly move. He went to the Belvedere Medical Centre and, for the first time, was certified as unfit for work duties. He has not returned to work since.
[30]PCB 42
36 The relevant clinical notes of the Belvedere Medical Centre[31] record the following:
[31]PCB 177-186
“Monday August 6 2012
…
flare up of low back pain. First happened 6 months ago when carrying heavy weight with the boss, who let go.
No sign of disc prolapse. Some loss of lumbar lordosis and restricted movements.
… . [32][32]PCB 182
Tuesday October 2 2012
…
Acute on chronic low back pain.
2/7 exacerbation low back pain, he woke up with severe back pain. unable to sit, has to stand. The pain did not go anywhere, nil weakness, nil altered sensation, nil bladder or bowel disorder. Initial injury was in Dec 2011 at work, he was lifting 50 kg metal with other worker , the other worker suddenly let go the metal , he had a pulling sensation on his low back and pain. HIs (sic) work did not accept work cover.… . [33]
[33]PCB 181
Thursday October 4 2012
…
He decided to put a claim on work cover.
As initial injury was at work last year, his back was painfull (sic) since last year then becomes more severe early this week.… .[34]
[34]PCB 181
Tuesday October 16 2012
…
Painfull (sic) lowr back when standing up from sitting position, after standing and walking ok.
Seeing physio.
Slowly improving.… .[35]
Tuesday October 30 2012
…
Back pain has been good , until yesterday when he was helping his mum carrying shopping bag and has a recurrent (sic) of low back pain.
The pain was not as bad as the initial pain, nil weakness on both lower limbs, nil bladder or bowel disturbance. … .”[36]
[35]PCB 180
[36]PCB 180
37 Mr Sednaoui has remained under the care of Dr Sujeewa Fernando of the Belvedere Medical Centre through to the present time. He has been referred to a number of specialists, including Mr John Cunningham, orthopaedic surgeon, and to a spinal management program at the Spinal Management Clinic of Victoria. He has undergone foraminal injections with some temporary relief. Radiological investigations[37] revealed bulging at two lower lumbar discs with, in the MRI scan of May 2016, contact and displacement of the L5 nerve root and contact without displacement of the S1 nerve root.[38] Mr Sednaoui has been treated by a pain physician, Dr Robert Gassin, and referred for physiotherapy.
[37]PCB 93-98
[38]PCB 98
38 According to his affidavit, and his evidence, Mr Sednaoui suffers constant significant lower back pain. He has become depressed and anxious and has been referred for psychiatric treatment. He has taken various medications, including Panadeine Forte and Tramadol. Despite various alternative areas of employment being suggested, he says he could not do any work, even on a part-time basis, because of his pain and restriction.
39 Mr Sednaoui says he is restricted in the domestic duties he is able to undertake, and they are now all done by his sister. He had to give up BMX racing and abseiling. He can no longer jet ski and has become socially reclusive. He claims his sleep is affected, and he is unable to sit or stand for long. Bending and twisting aggravates his pain, which sometimes radiates into the left buttock. He is able to drive and has recently bought a car. However, he can only travel short distances.
40 According to the affidavits of his mother and sister, Mr Sednaoui is a quiet person, not given to complaint about his problems. It was not until late 2012 or early 2013 that they became aware that he had injured his back at work. His sister does all of the domestic tasks and receives a Carer Allowance for looking after him.
41 To many of the treating and consultant medical practitioners, Mr Sednaoui described the incident as occurring on 14 December 2011.[39] His Worker’s Injury Claim Form was completed and provided to the employer on 15 October 2012. The date of the injury was said to be 14 December 2011 at 4.25pm. It was said to have occurred “in the lead and [magnesium] area of the factory”.[40] Yet when Mr Sednaoui was taken to the timesheets over the relevant period,[41] he accepted the incident could not have taken place on 14 December 2011 as there was no work done in the magnesium area on that day. He agreed that the date was completely wrong.[42] He was asked:
Q: “And how is it that you identified the date of 14 December 2011?---
A: It was a rough estimate at the time.”[43]
[39]Reports of Mr Cunningham (PCB 54); Mr Surkitt (PCB 64); Dr Ford (PCB 85); Professor Bittar (PCB 99); Dr Thomas (PCB 102); Dr Ales Aliashkevich (PCB 109) (to whom he also complained of an incident around 16 July 2009); Dr Tagkalidis (PCB 139); Dr Boffa (DCB 56) and Dr Kornan (DCB 63).
[40]DCB 207
[41]DCB 194-198
[42]T48, L8
[43]T44, L18
42 Mr Sednaoui gave no further explanation as to how he came upon that date.
The credibility of the Plaintiff
43 Mr Sednaoui was reasonably responsive when questioned in cross-examination. He gave measured evidence. However, I have significant reservations about his credibility for the following reasons:
· His evidence about what occurred when he arranged for his mother to telephone his work on the day of his birthday, 6 August 2012, and his claim that he was unwell, was confused and unimpressive. He said he then went to his general practitioner to obtain a medical certificate so that he could be paid. This was clearly a deception. Little reliance can be placed on the clinical note of 6 August 2012 as a result.
· His evidence about hurting his back catching his niece at home was equally unimpressive. He maintained the event had occurred, although it was not the reason for him failing to attend work on 6 August 2012. Yet he claimed to his employer that was the reason he had hurt his back, when he attended work on the 7 August 2012. Extraordinarily, in an earlier proceeding, he denied the incident catching his niece had ever taken place.
· I accept the evidence of the defendant’s factory manager, Mr Pike, that he had a conversation with Mr Sednaoui on 2 October 2012. This conversation is documented in a letter to the insurer of 23 October 2012.[44] I accept Mr Sednaoui telephoned Mr Pike and said that he had a sore back and was not able to come to work. I accept he was asked whether the injury related to work and that Mr Sednaoui said it did not, that he was fine over the previous several days, but woke up on Monday morning with a sore back.
[44]DCB 211
· Mr Sednaoui claimed to many doctors that the incident with the anode occurred on the 14 December 2011. To some doctors he said December 2011. Yet he was completely unable, in the course of cross-examination, to explain how he came upon that date. He did not report the incident until October of the following year and worked throughout in heavy manual work. When challenged with the timesheets, he readily conceded that the date was inaccurate and it was only a rough estimate.
· Mr Sednaoui described in graphic detail to Dr Thomas how he reacted when Mr Pike dropped his end of the anode, including screaming and being unable to stand. It is inconceivable, in those circumstances, that he “simply forgot” to place an entry in the Injury Register. He was familiar with making entries in the Injury Register, and WorkCover claims, as he had done so in the past.
· Mr Sednaoui told Mr Cunningham that he took a few days off initially after the December 2011 incident.[45] He told Dr Thomas, Dr Paul Kornan and Dr Umberto Boffa that, after the incident, he saw his local doctor.[46] Each history was untrue and, in my view, designed to elevate the significance of the incident.
[45]PCB 54
[46]PCB 102, DCB 63, DCB 56
· Ms Sednaoui’s account of the occurrence of the December incident, that he suffered severe pain in his back and into the left hamstring and leg which required him to limp, that the pain got progressively worse and he required assistance at work, stands in complete contrast to the fact that he did not consult any doctor for a very considerable time, did not enter the incident in the Register of Injuries and, most significantly, continued in heavy manual labour without time off.
· His explanation in evidence that the reference to his “personal life” when reprimanded by his employer in February 2012[47] meant work problems, was invented on the spot.
· The history to a number of doctors[48] that he had never had back pain before was untrue, even given that his affidavit refers to all of the episodes as having resolved.
[47]DCB 132
[48]Mr Cunningham (PCB 54); Dr Ford (PCB 85); Dr Kumar (PCB 90); Dr Thomas (PCB 103); Dr Tagkalidis (PCB 140) and Dr Boffa (DCB 57)
44 For these reasons, I have distinct reservations about Mr Sednaoui’s credibility. I should look, wherever possible, for objective confirmation as to the version of events he has given. In particular, his evidence that he hurt his back in the manner he has described on or about 14 December 2011, in circumstances where he did not record the injury, made no complaint to his treating doctor and continued working in a physically demanding job, is difficult to accept. Further, I accept the evidence of Mr Pike that, over the period from December 2011 to October 2012, he worked with Mr Sednaoui and did not observe him in pain at any time. I further accept he made regular enquiries of the workers, including Mr Sednaoui, as to “how they are going and to provide physical assistance”,[49] and there was no indication from Mr Sednaoui that anything was wrong.
[49]DCB 117
The credibility of the Defendant’s witnesses
45 Both Mr Rigg and Mr Pike were called to give evidence and be cross-examined. Both gave their evidence in a straightforward and responsive manner and were impressive witnesses. There were no major credit issues put to either of them. Mr Hore-Lacy submitted the procedures of Amac for recording injuries and incidents in the Incident and Injury Registers was ineffective and inadequate. He said there were incidents which were not recorded, including incidents where Mr Pike burned his hands and pants. In cross-examination, Mr Pike said he saw no need to report these matters as he considered them trivial. I accept his evidence.
46 Mr Sednaoui agreed he was friendly with Mr Pike and, in fact, saw him as a father figure. He had been to his house on social occasions. I detected no element of bias or lack of empathy towards Mr Sednaoui in Mr Pike’s evidence. I did not perceive him as supporting the position of the company because he is still an employee. He made appropriate concessions in the course of cross-examination. All in all, in the absence of objective supporting evidence, I prefer the evidence of Mr Rigg and Mr Pike to that of Mr Sednaoui.
The Ansett Australia Ltd v Taylor[50] point
[50][2006] VSCA 171
47
Mr Sednaoui completed and submitted a Worker’s Injury Claim Form dated
15 October 2012.[51] The details completed on the form state:
“I was carrying 50 kg anode with assistance of John - (Factory manager) when john burnt his hands on rod insert on Anode and threw Anode down jarring my back.”[52]
[51]DCB 207-8
[52]DCB 207
48 The injury was said to have occurred on 14 December 2011 at 4:25pm.
49 By letter dated 30 October 2012,[53] Allianz Australia Workers’ Compensation (Victoria) Limited, on behalf of WorkSafe Victoria, accepted the claim for weekly payments and medical and like expenses. Weekly payments were received and medical expenses paid.
[53]PCB 167-171
50
Mr Rigg gave evidence that he signed and submitted an Employer Injury Claim Report.[54] Against the heading “[w]hat happened and how was the worker injured?” there appears “see attached report”. The attached report is a letter dated 23 October 2012 signed by Mr Rigg.[55] He said he sent the letter as there was insufficient space on the form. He said he spoke to fellow workers, in particular, Mr Pike, to provide the information. The report is said to outline the position of the company in relation to the claim. Thereafter, it details a chronology of events in relation to the claim from 28 September 2012 to
[54]DCB 209-10
[55]DCB 211-12
15 October 2012. The letter concludes with the following:
“Our concerns are outlined below:
·15/10/12 is the first we have heard of an incident that allegedly occurred on 14/12/11, which allegedly has caused the bulging discs in Justin’s back.
·The date, time & location of the alleged incident don’t correlate to our production records, nor do we have any record of this alleged incident until now.
·Justin worked for the rest of 2011 and all of this year so far without reporting this incident or injury.
·Recently Justin has tried to relate work to injuries that he has sustained outside of work. The most recent being when Justin had what looked to us like a sty on his left eye. He told John Pike that it was not a sty, but it was from getting something in his eye 13 days ago, which he failed to report until the ‘sty’ appeared on his eye. After some discussion, we agreed to send Justin to the doctor at the company’s expense to get his eye looked at. The GP he saw told him that it was a sty or cyst which he wouldn’t hear either and went to see a specialist. The specialist sent me a letter specifically telling me that this was a cyst/sty that was not work related at all.
We have been through our production records to see if an incident like the one described by Justin may have occurred at a different time and date; we have no record of it, other than a memory from our factory manager who remembers something like what is described happening. John can[’]t recall a specific date or time but remembers picking up a magnesium anode (approx 42kg) with Justin’s assistance and putting it down again because it was hot. He asked Justin at the time if he was OK, and Justin replied that he was. John asks the production staff on most mornings if they are OK to work and if anyone has any injuries. At no stage did Justin mention his back was sore from the incident in question.
We question why it has taken so long for the incident and injury to be reported. We also question the different stories that we have been told with relation to the same injury over the last 3 weeks.
Please contact me if you have any questions, I hope that this helps with the claim.”[56]
[56]DCB 212
51 There was no evidence on behalf of the insurer as to how the claim came to be accepted. The plaintiff submits this letter and the report supports the proposition that the insurer had before it details of the dispute about the occurrence of the injury and yet, notwithstanding, admitted the claim.
52 Since Ansett v Taylor, it is established that when an insurer representing a defendant accepts an injury as being work related, it stands as an admission to that effect in related proceedings. Normally, such an admission would be regarded as “very significant”, although not conclusive, and does not constitute an estoppel. Although Ansett v Taylor was concerned with the acceptance of compensation payable under s98C or s98E, it has potential application under s134AB. A defendant may be able to explain its conduct satisfactorily, which may rob the admission of its particular significance.[57]
[57]See Fokas v Staff Australia Pty Ltd [2013] VSCA 230 paragraph [32].
53 In Transport Accident Commission v Florrimell,[58] the Court of Appeal considered a leave application in respect of a shoulder injury caused in a transport accident. The Court considered Ansett v Taylor. Tate JA observed:
“However, Ansett v Taylor was concerned only with the question whether the prior acceptance by the WorkCover Authority … of a worker’s claim under s 98C for lump sum compensation for non-economic loss in respect of an injury resulting in permanent impairment established conclusively that the worker had sustained compensable injury. The court held that it did not so conclusively establish that a compensable injury had occurred, but such a prior acceptance should be regarded as having evidentiary value as amounting to a very significant admission by the Authority that the compensable injury was sustained.
In my view, those circumstances are far removed from the proposition that a payment by TAC for various procedures is to [be] treated as evidence of an admission on the subject of causation. The issue of causation may well be a complex one and, as here, may be one on which medical opinions conflict. It may also be an issue in relation to which, as here, relevant information is not available until surgery or other forms of medical procedure are performed. For the TAC to accept to pay for the cost of a procedure cannot have the effect of precluding them from later contesting the issue of causation, perhaps on the basis of the information obtained from the very procedure that it paid for. Nor, for similar reasons, ought such payment be treated as having the evidentiary value of an admission because the question of causation may well be a live one until all the procedures have been completed. It would be contrary to the efficient administration of the compensation scheme as a whole if the TAC resisted paying for medical procedures that might reduce the pain and suffering of someone injured in a transport accident on the basis that if it did so it would be regarded, at law, as having made an admission.”[59]
[58][2013] VSCA 247
[59]Transport Accident Commission v Florrimell (supra) at paragraphs [41]-[42]
54 The Court of Appeal, in Bedeux v Transport Accident Commission,[60] explained Transport Accident Commission v Florrimell as having “qualified the views expressed by Ashley JA [in Ansett v Taylor], concerning the weight to be accorded to the acceptance, by an authority of a claim for statutory benefits in a subsequent common law proceeding”.[61]
[60][2016] VSCA 127
[61]Bedeux v Transport Accident Commission (supra) at paragraph [71]
55 In Ifka v Shahin Enterprises Pty Ltd,[62] the Court of Appeal said:
“Conventionally, Ansett v Taylor is relied upon as authority for the proposition that, by paying compensation, a party (absent some other evidence) may be taken to have made an admission that the relevant worker suffered compensable injury involving the affected parts in respect of which compensation was paid. However, questions of the extent to which the acceptance of liability to make a payment might constitute an admission as to the full nature or effect of an injury can be problematic.”[63]
[62][2014] VSCA 8
[63]Ifka v Shahin Enterprises Pty Ltd (supra) at paragraph [57]
56 In Cairns v Trowelcoat,[64] Rush J was concerned as to whether an admission by the insurer could be led in a common law trial as distinct from a serious injury application, in particular where an employer was in disagreement with the acceptance of the claim. He found it could be led in evidence before a jury.
[64][2014] VSC 129
57 In Mert v Lawrence (Vic) Pty Ltd,[65] Bell J noted that a different view to that of Rush J in Cairns v Trowelcoat had been expressed by Cummins J in Raeburn v Tenix Defence Systems Pty Ltd (Ruling No 7),[66] where it was held that acceptance by the Victorian WorkCover Authority of the plaintiff’s entitlement to weekly payments of compensation under the Act in a claim against an employer, was not a relevant admission of liability in a separate common law proceeding against that employer for damages in respect of the same injury. In Mert v Lawrence, the employer, on the Worker’s Injury Claim Form, alleged the worker was a liar and had not injured her back at work. His Honour said:
“… I have my doubts about whether acceptance by CGU of the plaintiff’s claim for impairment benefits under the Accident Compensation Act represented an admission (that the plaintiff was injured in the alleged incident) on behalf of the defendant for all purposes and specifically for the purpose of the present proceeding for substantial damages for negligence and breach of statutory duty. That proposition, which was not developed on behalf of the plaintiff, seems to rest entirely upon the formal authority of CGU under the Accident Compensation Act. I suspect that, on analysis, the proposition will break down at both that formal legal and also at the factual level.
However, I think it is clear from the judgments of the Court of Appeal in Ansett, as subsequently explained, [in] Fokas, Florrimell and Bedeux that the relevance in a separate common law proceeding of an employer’s ‘acceptance’, by statutory agency, of a claim for statutory benefits by an employee must depend upon careful assessment of the particular facts and circumstances rather than upon any general rule of law or fact. Applying this contextual approach to the present case, I would hold that the acceptance of the plaintiff’s claim for impairment benefits under the Accident Compensation Act by CGU has very little probative value as an admission on behalf of the defendant in the present common law proceeding.”[67]
[65][2016] VSC 348
[66][2006] VSC 390
[67]Mert v Lawrence (Vic) Pty Ltd (supra) at paragraphs [8]-[9]
58 I am bound by the authority of Ansett v Taylor, although bear in mind the comments of Tate JA in Transport Accident Commission v Florrimell. There are two questions to be considered:
(i) The first is whether the acceptance of the claim by Allianz should stand as an admission, and a significant one;
(ii) The second is whether there has been evidence on behalf of the defendant to explain the acceptance.
59 Considering the second question, the evidence called on behalf of the defendant points clearly to the assessment by its managers that the injury to the worker’s spine, whatever that was, did not occur at work. There was no evidence from the insurer as to why, in the face of those allegations, the claim was admitted. There may be a host of reasons as to why that occurred including, that to allow an enquiry as to causation in every claim that was made, would lead to impossible delays in the compensation system. It could equally be said that the agent considered the explanation of Amac but did not accept it, or preferred the version of events as given by the Mr Sednaoui, although that would seem unlikely. However, it is not appropriate to speculate without evidence being called. It must have been obvious to the defendant that causation was a real issue in this application and, therefore, it was open to it to call evidence from Allianz as to the circumstances of the acceptance of the claim. It chose not to do so.
60 The purpose of calling evidence in an application such as this from the insurer is to explain how, and in what circumstances, a claim was accepted. It is then a matter to determine whether an admission could be said to arise. It is not to the point that the employer says it does not accept the injury occurred in compensable circumstances. The purpose of the evidence is to rebut what would appear to be an admission as to causation. Therefore, the evidence of Mr Rigg in the report of 23 October 2012 is of little value in rebutting the admission.
61 Given the binding authority of Ansett v Taylor, I am of the view the acceptance of the claim stands as an admission that the injury occurred in compensable circumstances, and as described by Mr Sednaoui in his Claim Form, that is, that he hurt his back while lifting on 14 December 2011. However, that is not the end of the matter. The other question to be considered is as to its nature, and the extent of its significance as an evidentiary admission. It is clear the admission is not a binding estoppel. Each case must be determined on its own facts, relevantly, as to whether or not an injury occurred in compensable circumstances.
62 In the “contextual approach” referred to by Bell J in Mert v Lawrence, his Honour emphasised the need for “careful assessment of the particular facts and circumstances”[68] in determining the relevance of the acceptance of a claim by a statutory agency. He concluded, in the damages claim before him, that such an acceptance had “very little probative value as an admission on behalf of the defendant”.[69] I have come to a similar conclusion in this application.
[68]
[69]
63 The issue of causation in this application is not only complex but, indeed, the central issue. There is clear evidence from employees of the defendant, which evidence I accept, which casts grave suspicion on whether the incident said to give rise to injury occurred in compensable circumstances. For reasons I shall shortly set out, I am not satisfied the plaintiff has proved the causative relationship between his back injury and the alleged incident of December 2011. While the acceptance of the claim does constitute an admission, the admission is not of sufficient force or effect to persuade me that I should reject the evidence of Mr Rigg and Mr Pike, nor does it act as a substitute for the evidence of Mr Sednaoui, or underpin it in such a way as to lead me to prefer that evidence to that of Messrs Rigg and Pike.
The course of employment claim
64 Mr Hore-Lacy relies not only on the incident of December 2011 (if indeed that was when it occurred), but also the course of the plaintiff’s employment with Amac. Mr Sednaoui worked for a period between October 2000 and November 2001. There is no allegation of any particular incident or injury over this first period. He said he suffered back pain in 2000 while playing soccer. He then worked from March 2009 on a full-time basis until he left employment in October 2012. I accept without reservation that the work was heavy and demanding. On occasions, Mr Sednaoui was required to lift heavy weights. There is no doubt the arduous nature of the employment could give rise to an injury to the lower spine.
65 The difficulty for the plaintiff’s case in this regard is that his affidavits, and with perhaps one exception, the opinions of all of the doctors, are directed to the December 2011 incident. In reality, the case was not presented as a “course of employment” application.
66 In his first affidavit,[70] Mr Sednaoui referred to an incident in July 2009 when he hurt his back lifting a heavy vice. This is recorded in the clinical notes. However, he said that after about one week he did not have any pain or discomfort and returned to normal duties. He said he made a full recovery. He said, of the incident in June 2011, when he was helping a friend shift furniture, he had some mild back pain, attended his doctor, but had no pain or discomfort after several days and again, made a complete recovery.
[70]PCB 17
67 In his second affidavit,[71] Mr Sednaoui said he experienced pain in his middle back in about 2010 while at work, but that pain resolved after a very short time and did not cause him any ongoing difficulties.
[71]PCB 30
68 Finally, in his third affidavit,[72] Mr Sednaoui said there was an incident in late-July 2012 when he experienced a flare-up of lower back pain at work. He did not take any time off work, or attend his doctor, but took some medication. All of these incidents were explained as being of little, if any, significance or effect. According to his affidavit, it is only since the December 2011 injury that he has been unable to enjoy recreational and sporting pursuits.[73]
[72]PCB 32
[73]PCB 19
69 Further, to no doctor did he complain that his work over the years from 2009 caused him any pain or difficulty, or was so arduous that it in any way was related to his lower back condition. To Dr Ales Aliashkevich, neurosurgeon, he gave a history of lifting heavy weights and, as well as the incident of December 2011, referred to the incident of July 2009 when he lifted a heavy vice, although went on to say he made a full recovery. That practitioner thought that his mechanical lower back pain was related to both the incident of July 2009 and December 2011. He noted there was no evidence of pre-existing injury or disease. That opinion aside, there is no medical evidence to conclude that it was anything other than the alleged incident of December 2011 which gave rise to injury.
70 In these circumstances, I am thus not satisfied, the onus being upon the plaintiff, that there was any part of his lower back injury which could be related to the course of his employment.
71 Further, aside from the incident of 6 August 2012, to which I shall shortly refer, the evidence of Mr Pike was that he was unaware of any specific injury having been suffered by Mr Sednaoui, that there was any complaint about the arduous or difficult nature of the tasks involved, or that he noticed any pain or restriction at any time until October 2012.
The incident of 6 August 2012
72 The Register of Injuries refers to an injury to Mr Sednaoui’s lower back which occurred on 31 July 2012. This is referred to as a “aggravation” of an existing injury. It is difficult to know what to make of this allegation as the note attached, signed by both Mr Rigg and Mr Sednaoui, says the injury was not mentioned to anyone until 6 August 2012, and that he hurt his back playing with his niece some days earlier. This was an excuse Mr Sednaoui said he used as “the first thing that came into his head”[74] when questioned by his employer for having taken a “sickie”.
[74]PCB 47
73 The clinical notes of the general practitioner refer to the report of an incident where there was a flare-up of lower back pain. The note says “[f]irst happened 6 months ago when carrying heavy weight with the boss, who let go”.[75] However, this was the date when Mr Sednaoui accepted he went to his doctor and made an excuse to get a day off work for his birthday. In such circumstances, the incident is of little probative value.
[75]PCB 182
74 Even accepting there was some work event around 6 August 2012, and I have grave reservations in that regard, it was at best mild and of little significance. The use of the word “aggravation” is, in context, of little assistance.
The December 2011 incident
75
There is no doubt that at some time an incident occurred when Mr Pike and
Mr Sednaoui were carrying an anode. I prefer the version of events as given by Mr Pike, that is, that they were lifting the anode from the tines of a forklift when it dropped a short distance to the ground. I accept Mr Pike’s evidence that he immediately asked the plaintiff if he was all right. He responded by saying he was fine. The incident was not recorded in either the Register of Injuries or the Incident Register as it was not seen to be of any significance.
76 I further accept the evidence of Mr Pike that over the period from December 2011 to October 2012 he did not observe Mr Sednaoui in any pain or restriction, asked him from time to time how he was and he observed Mr Sednaoui was able to carry out all of his duties without any apparent difficulty.
77
Mr Sednaoui had made claims for compensation in the past and made entries in the Injury Register.[76] I do not accept his evidence that he simply “forgot” to enter the incident at the time. There were other occasions, subsequently, when he had the opportunity to document what had occurred, but he failed to do so. Further, as stated, he made no complaint to his general practitioner about any incident until 6 August 2012.[77] However, there were no further reports until
2 October 2012, when it is recorded he was suffering two weeks’ exacerbation of lower back pain and had woken up with severe back pain.
[76]Exhibit “B”
[77]PCB 182
78 Whenever the incident with the anode occurred, I am not satisfied it resulted in any significant injury to Mr Sednaoui.
79 I accept the opinion of most practitioners that Mr Sednaoui has suffered an injury to his lower spine at the L4-5 and L5-S1 levels. That is evident from the MRI scans. It is possible that injury or degeneration in his lower spine occurred relatively spontaneously in October 2012. It is clearly possible that his work activities played some role. However, the onus is upon the plaintiff to prove, on balance, that the injury occurred in compensable circumstances. The plaintiff has not discharged that onus. I bear in mind the acceptance of the claim by the insurer and the admission to be inferred. However, that admission is not sufficient in the face of the evidence of the defendant’s witnesses, to satisfy me the injury occurred in compensable circumstances.
80 The plaintiff’s application is dismissed.
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