Small v Maffra Waste Disposal
[2021] VMC 17
•21 October 2021
IN THE MAGISTRATES’ COURT OF VICTORIA
AT LATROBE VALLEY
WORKCOVER DIVISION OF COURTCase No. L11476199
Glenn SMALL Plaintiff v MAFFRA WASTE DISPOSAL
(ACN 082 299 938)Defendant ---
MAGISTRATE:
M A HOARE
WHERE HELD:
LATROBE VALLEY (via WebEx)
DATE OF HEARING:
30-31 August 2021, 1 September 2021
DATE OF DECISION:
21 October 2021
CASE MAY BE CITED AS:
Small v Maffra Waste Disposal
MEDIUM NEUTRAL CITATION:
[2021] VMC 017
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WORKER COMPENSATION – Rejection of claim - Lumbar spine – Whether pre-existing injury or disease - Injury in the course of or arising out of employment - Whether employment a significant contributing factor - Credit of the plaintiff – Workplace Injury Rehabilitation and Compensation Act 2013, ss 3(1), 39(1), 40(3), clause 25 of Sch 1.
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APPEARANCES:
COUNSEL SOLICITORS For the Plaintiff Mr P Haddad John McCristal Injury Lawyers For the Defendant Ms C Kusiak Minter Ellison HER HONOUR:
INTRODUCTION AND OVERVIEW
1In the early hours of the morning, on or around 10 April 2018, Mr Glenn Small, the plaintiff in this proceeding, woke in bed at home with acute low back pain and left leg numbness.
2By complaint dated 2 April 2020, Mr Small pleaded injury to his back as a consequence of heavy repetitive work performed over the course of his employment with Maffra Waste Disposal (‘Maffra Waste’). He had been employed by on a casual basis by Maffra Waste as a diesel mechanic/driver and labourer from around July 2013. His last day of work was on or around 10 April 2018.
3Mr Small’s claim for weekly payments of compensation and medical like expenses was brought under the Workplace Injury Compensation and Rehabilitation Act 2013 (‘the Act’).
4His claim for compensation, lodged about 15 months after ceasing work with Maffra Waste, was rejected.
5 The central issue in dispute was causation. The defence case was that: Mr Small had not sustained an injury arising out or in the course of his employment; his employment was not a significant contributing factor to his claimed injury; and any incapacity for work did not result from, nor was materially contributed to, by any work-related injury.
PLAINTIFF’S EVIDENCE
Background and Work History
6 Mr Small, who is aged 48 years, has lived in Stratford, in regional Gippsland, with his teenage son since December 2018. Mr Small completed school part-way through year ten at a technical college. After completing a four-year apprenticeship, he worked as qualified motor mechanic for various employers, often working with trucks.
7 For about eight years from the early 2000s, Mr Small worked as a mechanic/relief driver for Wellington Waste Disposal (‘Wellington’) in Sale. Duties were maintenance and servicing of trucks and driving garbage trucks as a relief driver for about six months of the year. He lodged no WorkCover claims with Wellington. In re-examination, he said he had never had back soreness or niggles whilst working for Wellington.
8 After that, Mr Small spent a few years out of the paid workforce as a ‘stay at home dad’.
9 Mr Small then did casual part-time work as a truck driver and mechanic for an entity called Handy Brothers, operated by the brother of Ms Angela Shingles, a director/manager with Maffra Waste. He did that for about 12 to 18 months.
10 In cross-examination Mr Small agreed his work with Wellington involved repetitive bending, pushing, pulling and heavy lifting. He worked on heavy-sized trucks although there was not as much heavy lifting. The work was mainly mechanical work, although much of it was out-sourced as the trucks were generally under warranty.
Employment with Maffra Waste
11 In about July 2013, Mr Small began casual work with Maffra Waste as a motor mechanic/relief driver and labourer. He began on about 10 hours a week and worked up.
12 By late 2014 onwards, he was usually working 36 to 38 hours a week. He did regular overtime and sometimes worked weekends. Also when on ‘hard rubbish’ (collecting curb-side household hard rubbish), he worked five full days a week. He did that two to three months of the year.
13 Mr Small reported to Ms Angela Shingles who was usually in charge. Ms Shingles allocated the work. When he didn’t know what jobs to do, he would see her. She worked in the office around 80 per cent of the week.
Nature of the Tasks with Maffra Waste
14 As well as the mechanical work and driving, his duties involved what he called the recycling work. Over time, there was more of the ‘recycling work’. In his last couple of years, he did recycling work at least two days a week up to three or four days a week. He did the work for 6 to 7 hours per day and at times whole eight-hour days down there.
15 In cross-examination, he conceded he would not work a whole day on recycling work as there were always be other jobs to do. More often than not, just one person would be on the recycling work. There could be two depending on how many bins were being sorted. In cross-examination, Mr Small denied there would always be two people on the job. There was no equipment although forklifts were used to ‘flip’ the bins over.
16 The recycling work involved sorting through contents of large bins (or skips) returned after being hired out by customers. Over a week, there might be twenty or so bins that needed sorting through. The bins came from households, work-sites, building-sites and demolition sites.
17 The task was to separate out recyclable materials from rubbish. Bins might contain: concrete waste; blocks of bricks and mortar; discarded household items such as sinks, washing-machines and general rubbish. A step-ladder was used to climb into the bins, which were chest-height. Then, from inside the bin, items were manually moved out by throwing them out into separate areas. The heavier items were left to last and had to be manually pushed up from inside the bin over the top and out. Old washing-machines (which might weigh 50 kilograms) were a regular item.
18 In cross examination Mr Small conceded not all items had to be removed from the bins. Some were left in the bins and the whole bin would be emptied into the garbage truck on a front loader.
19 As for the mechanic duties performed, Mr Small gave lengthy evidence about processes involved in various tasks. These included: re-lining of brakes; replacing brake-drums; working on the differential, gearboxes, hydraulics and so on.
20 Removing brakes required: jacking the truck up; and undoing the nuts and removing the wheels. The wheels were ‘wiggled off’ using a lever underneath, then rolled out to the floor. A wheel weighed about 70 kilograms. About half of the trucks had mud-guards over the wheels which made the task more involved and awkward. In cross examination, Mr Small said the frequency of replacing brake-linings varied from three sets some months to none.
21 Brake-drums (which weighed about 40 to 50 kilograms) were located in the midpoint between the two tyres. He would give the brake-drum a good whack with a sledgehammer to dislodge it. As for the frequency with which brake-drums had to be changed, the task was done not one at a time, but in multiples. Brake-drums might be done from anywhere from four a month up to six or eight a month although that was not every month. Some months, there might be two trucks needing doing, some months none. The task was done by getting on your knees, shuffling out the brake-drum and rolling it out to the side.
22 The task of replacing a gearbox (which weighed over 100 kilograms) would involve a few of the staff. It was a job you would hope not to do more than once a year. Removing a gearbox involved getting under the chassis, undoing the bolts around the flange, working the hydraulics, the lines and pumps. After undoing the bolts, you would lever it to the ground.
23 In cross-examination, Mr Small denied that gearboxes had been replaced only two to three times over the whole time he had been with Maffra Waste. He could count 4 to 5 gearboxes that had been done which involved whole engine rebuilds. He agreed there was no manual lifting and the gearbox was lifted out by a forklift.
24 Mr Small also did relief driving. While driving, there were times when he had to manually pull 240-litre wheelie bins out to the truck. Other duties included answering phones in the office when no one else was around maybe a couple of times a month. There was also: general maintenance and electrical work; cleaning the yard; working in the steel section of the depot; operating machinery to move items around such as car bodies and so on.
25 After a day of heavy work, Mr Small’s back felt sore and worn out. He would feel soreness in his back ‘most of the time’ when doing heavy stuff. As for how long his back stayed sore after a day of that work, his back would be sore overnight. He would get over it and go back to work. As for how often his back was sore, this was about two to three days a week. He did not go to the doctor because it was ‘just muscles’.
Events in April 2018
26 On a date around 10 or 11 April 2018 (a Tuesday or Wednesday), Mr Small woke in bed, at around 2:00 am, with back pain so severe he was in tears. He also had leg pain and numbness in his feet. He had never known such pain before.
27 Following that, Mr Small attended his usual GP clinic. There was confusion about the precise date of the acute episode and when he spoke to his boss, Ms Shingles. However, he agreed that it was Wednesday 11 April 2018 that he went to the GP (according to the clinical records). He went into work to speak with Ms Shingles (‘the April 2018 conversation’). As far as he could recall, he told Ms Shingles he had been to the GP, something was wrong with his back and tests were needed to find out what was going on.
28 In cross-examination, he denied saying to Ms Shingles in the April 2018 conversation he had hurt his back after working on his boat at home.
29 Mr Small could not recall what sort of work he had done for Maffra Waste on the day before the acute onset of pain. He usually worked Mondays and Tuesdays, although he had some Mondays off to deal with his son’s home-schooling. He could not recall anything at work that may have contributed to his injury. It was just the general nature of the work.
30 In the weeks before the April 2018 conversation, his back had been okay and no different to normal. Over the months before, he had soreness and niggles now and then. He had no treatment for his back in the month or two prior to the April 2018 conversation.
31 In cross-examination, Mr Small agreed with the history given to Mr Doig, a medico-legal examiner, that he was ‘fit and well’ before 11 April 2018 other than a bit of soreness after a day at work. He agreed that hadn’t stopped him going to work or caused him to see his GP. He couldn’t recall complaining to anyone at Maffra Waste about back pain before the April 2018 conversation.
32 In cross-examination, Mr Small was taken to the record of the GP attendance on 11 April 2018. It was a long attendance of 23 minutes. The reason for contact was sciatica and left leg numbness. Dr Meerkin recorded the history as follows: ‘6/52 ago had a flare-up and saw a masseuse which helped. Last night, flare up again. No clear precipitant, but was running around playing with friend’s children’. She provided a Centrelink medical certificate.
33 Mr Small could not recall any flare up of back symptoms six weeks prior to that attendance, which he agreed would have been around late February 2018. While he did sometimes have kids running around his place, he had no specific memory of that happening on the day prior to the GP attendance. Mr Small agreed he didn’t mention anything about the nature of his work which was because he hadn’t associated his back pain with his duties at Maffra Waste. Nothing about his work had changed in the six weeks between February and April of 2018.
34 After that first GP visit, Mr Small never resumed work with Maffra Waste. This was due to back pain. He had physiotherapy sessions via an enhanced primary care plan. He had epidural injections at Sale hospital. The first couple of these gave some relief for about a fortnight. At one stage, he was referred for neurosurgical review at St. Vincent's Hospital and he remains on a waiting list for that.
Lodgement of the WorkCover Claim
35 Mr Small completed a WorkCover claim dated 8 July 2019 for ‘lower back’ due to ‘heavy lifting; heavy repetitive work’. The form stated the injury/condition occurred on 10 April 2018 which was also the date he first noticed and first reported the condition.
36 As for why he claimed his back problem was due to heavy lifting and repetitive work with Maffra Waste, Mr Small said, that's what he was doing for a living. That was all he was doing. There was nothing else he had been doing that might have contributed to his pain.
37 When asked why he lodged the claim was lodged in July 2019, Mr Small said his back was not getting better. His family told him to look into it more. As for why he didn't lodge the claim back in April 2018, he said he hadn’t known about WorkCover. When asked what he knew about WorkCover, he said ‘nothing really’. He found out about it when his family told him to look into it and speak to his doctor.
38 In cross-examination, he denied being aware of workers compensation in April 2018. He was shown a WorkCover certificate dated 13 December 1994 issued for him for a left eye injury. Mr Small recalled the eye injury but not making a WorkCover claim as it was a long time ago. He repeated that he didn’t know about WorkCover. Mr Small also didn’t recall being issued with a WorkCover certificate of capacity by his usual GP clinic on 6 February 2013 for an ankle injury at work.
39 When further questioned, Mr Small then said it was not that he was unaware of WorkCover, rather he didn’t know the cause of the back trouble in April 2018. He had thought his back would come good and he would be fine.
40 In cross examination, he was asked whether July 2019 was the first point in time at which he arrived at the view his back injury was work related. Mr Small repeated his earlier evidence that, as things weren't getting better, he had sat down with family and friends and concluded that work ‘was the only thing he had done’.
Activities Outside the Workplace
41 In cross examination, Mr Small agreed he had interests in fishing and boating for the past 20 years. He had owned his own boat in April 2018 and agreed that over the twelve months prior, he had done building and repair work on his boat. He did this about once a month.
42 Mr Small agreed that on 10 February 2019 he posted photographs of his boat on his Facebook page. He thought the post was done within a few days of taking the photographs. The photographs depicted a stripped-down boat undergoing refurbishment works. The post by Mr Small with various emojis stated: ‘starting to take shape now’. At that stage, he said he had been working on the boat for about six months. Later he said he had been working on the boat over the months whenever he had the money.
43 In cross-examination, Mr Small said the work on the boat was still not completed to this day. He hadn’t worked on the boat for over a year. He did work on the boat after the 10 February 2018 Facebook post, but not in March or April 2018. When pressed on this, he said he didn’t recall whether he had or not worked on the boat in March or up to 10 April 2018. At another point, he said he was pretty sure he didn't work on the boat in March 2018 because he had run out of money.
44 Later, Mr Small said he knew he hadn’t worked the boast in the few weeks before 10 April 2018 because by then the motor was back on and he had relocated the boat to this friend Tony’s place.
45 In cross-examination, Mr Small was questioned about the nature of the work done on the boat. He denied the work required repetitive bending. The sanding required kneeling down more than bending. As for lifting, there was only light lifting as fibreglass is very light. He had basically painted the boat himself which took two to three days.
46 The stage of the works, as at the time of the February 2018 Facebook post, was to do with replacing the transom (the vertical section at the rear of the boat). Once that was done, there was not that much else to do.
47 At a later point, Mr Small said that the next job after replacing the transom was fitting the outboard motor (which weighed around 250 to 300 kilograms) back on the transom. That was done with a block and tackle device, so it was just a matter of hooking the motor up to the block and tackle and pulling on the chain. The process did not require a lot of force and could be done virtually one-handed. He was on the ladder and his mates, Tony and Warwick who had assisted him, hooked up the motor to the chains.
48 In re-examination, Mr Small said he had not hurt himself in the process of the removing or pushing the motor. He also said he could not recall the exact date when he had moved the boat to Tony’s. When asked whether it was before the April 2018 conversation, he said yes, it was in February.
49 Under cross-examination, Mr Small was also questioned about his other recreational activities in relation to his evidence that work ‘was the only thing he had done’. When it was then put to him that he had also worked on his boat, had children running around at home and doing mechanical work on his cars at home, he replied ‘only on his own cars and only bits and pieces’. In April 2018, he had three cars but he didn’t work on them that often and only if something went wrong. In re-examination, he said he had not hurt himself whilst working on his three cars.
Current Circumstances
50 Mr Small had not worked since 10 April 2018 because of back pain. He did not believe he could do his pre-injury role with Maffra working 32 hours a week
51 There was ongoing pain in his back and legs. On a good day, the pain was 5 out of 10. About four days a week, the pain was bad enough that he would be in tears. His sleep was poor. Pain was aggravated by activity. He could walk for a block or so, not even five minutes, and he had pain. He could stand and do the dishes for 10 to 20 minutes. He could carry shopping bags one at a time.
52 As for other activities, in examination-in-chief, he said he had been into dirt-bike riding which he hadn’t done for about two years. At first, he tried but he would be very sore at the end of it.
53 In cross-examination, Mr Small agreed that, in late December 2019 or January 2020, he went on a fishing trip with his mate, Warwick Hutchins. Mr Hutchins had driven, towing the boat to Welshpool, about a two-hour drive. From Welshpool, where the boat was launched, it was about a 30-minute boat ride to Refuge Cove. They stayed overnight on the boat and fished from the boat. Mr Hutchins handled all the equipment. As for how his back had been, he had suffered through it. Mr Small did not believe he had been on another fishing trip since that one.
54 In cross-examination, Mr Small agreed (as he told a medico-legal examiner, Mr Dickinson, in March 2021) that he did a bit of work in his shed at home. He doodled around and sat at the bench. He also might clean out the shed, clean tools and move tools around to keep busy. He also agreed he told Mr Doig that he used a metal detector to get out in the bush and would walk for around with it for about ten minutes.
55 As for treatment, Mr Small sees his GP monthly. He had physiotherapy last in January 2021. Medications include nurofen, panadeine and tramadol, an anti-depressant, nerve-blockers and a sleeping tablet. He had been taking the anti-depressant (prescribed by the GP) for about two years. At times he can’t afford to have his prescriptions filled.
OTHER LAY EVIDENCE
Mr Hutchins’ evidence
56 Mr Hutchins, a blacksmith/farrier by occupation, had known Mr Small socially for about ten years. In 2018, they caught up regularly on weekends. They helped each other out, doing stuff on each other’s boats. For example, Mr Small had helped with the re-wiring of Mr Hutchins’ boat.
57 Over the years, Mr Hutchins had called into see Mr Small maybe six times at his Maffra Waste workplace. Mr Small was basically the head mechanic and they called him 24/7. When he dropped into his work, Mr Small would not stop to chat but would keep working. Mr Small never complained about his back to him on these occasions.
58 Mr Small had been working on his own boat in the months before April 2018. The boat was stored at Mr Small’s house and had not been moved other than when Mr Small had moved house. Mr Hutchins was unaware of the boat being moved to someone else’s place. Then he said maybe the boat had been taken to Tony Cunningham’s place for a few weeks when Mr Small had moved house.
59 Mr Hutchins was shown the February 2018 Facebook post depicting the boat at the stage of the replacement of the transom. That had involved lifting off and re-installing the outboard motor with the aid of a block and tackle device. Not a lot of force was needed to operate a block and tackle. It was Mr Small who rigged up the block and tackle as he was pretty fussy about things like that. In re-examination, Mr Hutchins said he was pretty sure the motor was only off the boat for the transom replacement for a few weeks.
60 Mr Hutchins was unaware of Mr Small having injured himself during this activity. He was unaware of Mr Small complaining about his back or having injured himself at all before April 2018. He was unaware of Mr Small injuring his back due to anything other than work in or around April 2018.
61 In cross-examination, he agreed it was possible they were working on Mr Small’s boat in March 2018. He could not say whether they were working on it in early April 2018.
62 Over the years, they also went fishing together. As for the Refuge Cove fishing trip, Mr Hutchins had done the driving and had packed the car and boat. On the car-trip, they stopped halfway because Mr Small tended to get very stiff.
63 As for what he has observed about Mr Small’s condition currently, he was constantly groaning and grunting. He had not been like this before April 2018.
Ms Shingles’ evidence
64 Ms Angela Shingles had been involved in the day-to-day operations of Maffra Waste for about 27 years. For the past six years, she had been director of an entity called Campbell Street Investments that traded as Maffra Waste Disposal. Before that, she worked directly for Maffra Waste for over twenty years.
65 From around 2013, Mr Small was employed by Maffra Waste on a casual, ongoing basis mainly as a diesel mechanic and relief driver. He initially did ten hours a week, then about 30 hours by July 2014.
66 In April 2018, Maffra Waste had around eight employees: Mr Small, her brother Brad who was the head mechanic, an apprentice mechanic and five others. Four mostly did driving and one person (Sean Vine) worked on sorting recyclables full-time. A couple of drivers did one to two days a week on recycling/sorting duties.
67 Mr Small continued working around 30 hours a week. He did not do overtime and never worked weekends.
68 In cross-examination, Ms Shingles conceded Mr Small’s usual weekly hours might have been 32 hours, but never got up to 38 hours a week. Mr Small only worked four days a week and she denied he ever worked more than four days a week. As for her original estimate of 30 hours, it was a guess based on looking over time-sheets Mr Small filled out. On reviewing her records, in the fortnight before Mr Small’s last week, he did 22 hours for the week prior and 15 hours for the week before that.
69 Mr Small was generally allocated to recycling/sorting duties about once a week for about five or six hours at a time. Before getting hurt, it would have been about two months since he was last was on that task.
70 In cross-examination, she said Mr Small was mainly engaged in mechanical work; secondly, driving and collecting hook-bins; and thirdly, on recycling/sorting duties. She denied he spent at least two days on sorting recyclables. Mr Small’s duties as a mechanic were nearly full-time and if he ran out of that work, he would be driving a truck to pick up hook-bins.
71 As for the recycling work, the task was to sort the recyclable materials in the bins returned after hire. The bins generally came from building sites. Recyclables included: wood, cardboard, concrete, certain plastics and steel. The steel was generally the light steel strapping used to wrap pallets of floor tiles.
72 Mr Small never had to handle concrete slabs or waste out of the bins. If there was concrete waste in bins, the staff were told to leave it in the bin and not handle it manually.
73 In cross-examination, Ms Shingles said customers hiring bins were written information as to what materials were not permitted in bins. Concrete waste was not permitted. Customers had to hire dedicated hook-bins for this purpose.
74 As whether Mr Small might have handled discarded washing-machines, Ms Shingles said he might have done in the past. Maffra Waste had last had a contract for collection of curb-side hard-waste about seven years ago (in 2014). In cross-examination, she agreed staff had instructions to look at the contents and separate all items viable for recycling.
75 As for the mechanical work, Ms Shingles described the process of replacing brake-linings saying she was not an expert, but had seen it done a few times. She had observed Mr Small doing it. She thought trucks required this work about every six to eight months on each truck.
76 Replacing a gear-box was done with a winch and lifted out by a forklift. She was aware of only one time that Mr Small had done this task in his whole time with Maffra Waste. As for how often the task had been performed overall at Maffra Waste, she thought that four had been done over the course of her 27 years.
77 In cross-examination, Ms Shingles said she had lifted a brake-drum herself and estimated they weighed 15-20 kilograms. When it was put to her Mr Small had estimated the weight to be around 50 kilograms, she conceded he lifted such items more often and ‘he was probably right’. Regarding Mr Small’s evidence as to the process involved, she said that ‘sounded right’.
78 As for the April 2018 conversation, that was on 9 April 2018 (a Monday). Mr Small had come into work and told her he had hurt his back on the weekend working on his boat. Her recollection was that Mr Small saw his GP the next day and was told to lie in bed for six weeks.
79 In cross-examination, it was put to Ms Shingles that the conversation was more likely to have occurred on 10 April 2018 given the records showed the GP visit was on Wednesday 11 April 2018 around 9:30 am. Ms Shingles insisted it was a Monday (the 9th) and she could not be wrong about that.
80 Ms Shingles knew Mr Small had a boat which he kept in his driveway at home. She used to see it when she drove past to get to work. It was there in April 2018. In cross-examination, she conceded that in driving past every day, she didn’t pay that much attention to Mr Small’s boat.
81 As for how she knew the boat was there in April 2018, Mr Small had told her on the Friday (before the April 2018 conversation) that he was going home to work on his boat. Ms Shingles could not explain why she had not said that in examination-in-chief or in her prior statement to the WorkSafe circumstance investigator.
82 Ms Shingles filled out an employer injury claim following lodgement of the claim in July 2019. She had written: ‘Glen told us on the 9-4-18 that he hurt his back at home working on this boat’.
83 Prior to the April 2018 conversation, Mr Small had never complained of back pain. She first became aware he claimed to have hurt his back with Maffra Waste about eighteen months after he finished up when she received a letter from WorkCover.
84 In cross-examination, Ms Shingles agreed she spent the majority of her day in the office as well as going out into the yard to tell people what needed doing for the day. She conceded she was not down at the recycling/sorting area all the time and was not there for four to five hours at a time.
85 Ms Shingles was aware that Mr Small did work on his own cars. She knew this because he told them and because he was permitted to purchase parts through the business account.
MEDICAL EVIDENCE
86 Mr Mouli Balaraman, physiotherapist, provided a letter to Dr Burk dated 8 October 2018. He treated Mr Small for an acute episode of chronic low back pain. No reason was mentioned for the acute onset. Mr Small recovered and was expected to manage well with ongoing exercises.
87 Dr Alex Birk, treating GP, provided a ‘medical practitioner questionnaire’ of 29 August 2019 and a report of 20 December 2019. Mr Small had been a patient of the clinic since 1995. The records showed no prior back complaints. He first attended about the claimed injury on 11 Apri1 2018. In the questionnaire, the cause stated was an ‘accumulated injury from years of heavy manual labour’. Mr Small had woken at 2:00 in the morning with acute pain. The history was of general heavy work with no particular incident. There was no home incident that could have contributed. The injury appeared to be related to employment rather than any other factor. The diagnosis was of a lower back injury involving facet joint arthropathy and foraminal stenoses bilaterally at L5/S1. There was no capacity for pre-injury employment nor for suitable duties. He was under consideration for surgery.
88 Mr Stephen Doig, orthopaedic surgeon, provided a medico-legal report of 26 April 2021 for the plaintiff. Mr Small had worked as a diesel mechanic and driver and on sorting recyclable materials. He had done this full-time for about 10 years. Leading up to the time when he developed the problem, he had been moving a lot of concrete slabs and done a lot of lifting and carrying. The problem came on because of his work, which involved heavy lifting, pushing, pulling and carrying concrete slabs, brick piles and leaning over trucks and pulling out gearboxes. He had an occasional niggle in the back, but was fit and well. Injections had been helpful short-term and he was a waiting list to see a neurosurgeon at St Vincent's hospital. The diagnosis was of an exacerbation of pre-existing asymptomatic lumbar spondylosis with facet joint arthropathy based on the CT scan of 15 May 2018. Mr Doig opined that, from the way he described his job, it was likely the work itself had contributed. The work had had not caused the degenerative change. Currently, he was restricted in things like mowing the lawn and working on his cars at home. The prognosis was guarded. Mr Small was not capable of doing a heavy manual labouring job now or in the foreseeable future.
89 Dr Terence Saxby, orthopaedic surgeon, provided a medico-legal report of 16 August 2019 for the defendant. The history was of no specific incident, but of pain developing over time. The injury was reported on 10 April 2018 after waking in pain at 2:00 am after a normal day at work. He had worked as a mechanic/driver for Maffra Waste for about four years. He had done this work for prior employers. The diagnosis was of lumbar spondylosis with left leg radicular symptoms. Dr Saxby had not reviewed the radiology or reports. As for causation, he opined that with no evidence of any specific incident at work, he could not say work was a significant factor. It was a degenerate condition that had deteriorated over time. The work employment contribution should have resolved. There was capacity for modified duties. Any incapacity would have resolved.
90 Dr Ian Dickinson, orthopaedic surgeon, provided a medico-legal report of 17 March 2021 for the defendant. The history was of no specific incident and of waking at night with back pain and leg numbness. Mr Small reported having hurt his back during his work at Maffra Waste where he worked for about eight years as a diesel mechanic and relief driver. Duties included sorting recyclables especially timber, concrete and bricks. On examination, there was no tenderness, muscle spasm or guarding with full lateral flexion and full extension. Aspects of the clinical presentation were inconsistent. No formal diagnosis was given. The CT scan of 15 May 2018 was noted. The answer to the question as to what extent the claimed injury was work-related was, ‘No’. Mr Small was fit for pre-injury employment. He also worked in his shed at home, went fly-fishing and camping. He fished from his boat but not for a while.
ANALYSIS AND FINDINGS
91The legal and evidentiary onus of proof rested with Mr Small to establish, on the balance of probabilities, an entitlement to compensation for injury in accordance s.39(1) of the Act. He needed to discharge the burden of proof in relation to incapacity for pre-injury employment. He needed to prove that any incapacity for employment resulted from or was materially contributed to by the injury pursuant to s.160 of the Act.
91 The starting point was to determine the nature of ‘injury’ under the Act as that is the basis for deciding the correct test as to causation. Injury includes a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease: s3(1).
92 Should the evidence support a finding of a pre-existing degenerative condition of the lumbar spine, Mr Small was not entitled to compensation unless he established, on the balance of probabilities, that his employment was a ‘significant contributing factor’ to the diagnosed injury. That was in accordance with s.40(3)(c) of the Act.
93 It is well-established, as the Court of Appeal made clear in St Mary’s School v Askwith, that consideration of the ‘significant contributing factor’ test involves resolution of an essentially factual enquiry, the question being one of degree, requiring evaluation[1]. As Ginnane J stated in Sensis Pty Ltd v Jones, in applying Ashley JA’s analysis in Askwith: ‘The existence of other contributing factors does not preclude a finding that a worker’s employment was a significant contributing factor’[2] Certainly, it is well-established law that the Act recognises ‘a multiplicity of causes’.[3]
[1][2011] VSCA 90 at [13]
[2][2018] VSC 754 at [93].
[3]Grech v Orica Australia Pty Ltd [2006] VSCA 172 at [58]
94 As to what is meant by the adjective ‘significant’ in terms of assessing the weight of the workplace incident, the Court of Appeal has held that it must be of ‘considerable amount or effect.’[4]
[4][2011] VSCA 90 at [14].
95 Clause 25 of Schedule 1 of the Act mandates the factors to be taken into account in determining whether employment is a ‘significant contributing factor’ to a worker’s injury. Those are:
a. the duration of the current employment;
b. the nature of the work;
c. the particular tasks of the employment;
d. the probable development of the injury occurring if that employment had not taken place;
e. the existence of hereditary risks;
f. the lifestyle of the worker; and
g. the activities of the worker outside the workplace.
96 In assessing the medical evidence, I am guided by the principles in Pulling v Yarra Ranges Shire Council.[5] In particular, I note the obligation to examine the whole of the medical evidence even where it may have been undermined by other evidence, including evidence that the worker may not have been fully frank with a doctor.[6]
[5] [2018] VSC 248 at [50] to [55]
[6] Ibid at [50]
97Of course, as is often observed, the plaintiff’s credit is of critical importance in the determination of cases of this kind. Mr Small needed to persuade me that his evidence was credible and reliable. He also needed to establish the reliability of the histories given to the medical witnesses, whose opinions were premised on the accuracy of his accounts to them. The Court of Appeal has confirmed this many times, most recently in Johns v Oaktech Pty Ltd.[7]
[7][2020] VSCA 10 at [76]
98Having considered the relevant legal principles, I turn to the evidence and my findings. I will first consider injury before turning to causation, which, as noted at the outset, was the central dispute.
Diagnosis and Nature of Injury
99 Dr Birk, the treating GP, opined the diagnosis was of a lower back injury involving facet joint arthropathy and foraminal stenoses bilaterally at L5/S1. Whilst not the initial consulting GP at Maffra Clinic, Dr Birk saw Mr Small often thereafter.
100 The CT scan of 15 May 2018, on which Dr Birk’s and Mr Doig’s diagnosis was based, was take a month after the initial GP attendance. The CT scan report concluded that the ‘principal abnormality demonstrated’ was moderate facet joint arthropathy at L4/5 and L5/S1 and moderate severity foraminal stenoses bilaterally at L5/S1 and on the right at L4/5.
101 Mr Doig’s opinion as to diagnosis, having viewed the CT scan, was of an exacerbation of pre-existing asymptomatic lumbar spondylosis with facet joint arthropathy. Whilst Mr Doig characterised the pre-existing lumbar pathology as asymptomatic, he had obtained a history of ‘an occasional niggle’ although of Mr Small being otherwise ‘fit and well’.
102 Dr Saxby also opined that Mr Small had a ‘degenerate condition’. His diagnosis was of lumbar spondylosis with left leg radicular symptoms, however his opinion was somewhat compromised by not having viewed the CT imaging or report.
103 Finally, as both Counsel noted, Dr Dickinson did not provide a diagnosis at all.
104 Accordingly, having considered the whole of the medical evidence, I find that the diagnosis is of a lower back condition in the nature of a recurrence, aggravation, acceleration, exacerbation or deterioration of pre-existing lumbar spondylosis with facet joint arthropathy. That is in accordance with the opinion of Mr Doig, the only orthopaedic specialist to offer an opinion based on CT scans and also accords with the treating GP and is consistent with Dr Saxby’s diagnosis of spondylosis and of an underlying degenerate condition.
105 As for the correct causal test, Counsel for Mr Small submitted that, whilst it was a matter for the Court, the correct test was ‘significant contributing factor’.
106 Counsel for Maffra Waste, on the other hand, submitted ‘this was not a significant contributing factor case’. There were no indicia or symptoms, nor loss or reduction in working capacity to establish pre-existing injury or disease prior to the acute episode in April 2018. That was reflected by the GP clinical notes showing no back trouble from 1995 onwards till 11 April 2018. There was no prior radiology showing any injury of the back before April 2018. Accordingly, the threshold test for the plaintiff was that injury arose out of or in the course employment under s. 39(1) of the Act.
107 I reject that submission of Counsel for Maffra Waste. In my view, that analysis is incorrect.
108 For the purpose of deciding whether an injury is in the nature of a ‘recurrence, aggravation, acceleration, exacerbation or deterioration,’ the question for determination is whether there is evidence of ‘pre-existing injury or disease.’ As observed previously in these reasons, one month after the April 2018 onset of back pain, the ‘principal abnormality demonstrated’ as regards Mr Small’s lumbar spine according to the radiographer’s report of the May 2018 CT scan was moderate facet joint arthropathy. According to the ‘Glossary of Medical Terms’ contained in current ‘Accident Compensation Vic + Cases’ Manual, ‘arthropathy’ is a ‘disease of a joint.’
109 Contrary to the submissions of Counsel for Maffra Waste, it is not necessary to make a finding of symptomology prior to April 2018. Rather, the question is whether there was underlying injury or disease that pre-existing which I find there was based on the May 2018 CT scan. That accords with the views of Mr Doig (and also of Dr Saxby although he had not seen the scan) that Mr Small’s underlying lumbar spine condition was ‘pre-existing’ and ‘degenerative’ in nature.
110 For these reasons, I find that the arthropathy was a pre-existing disease and that the acute episode of pain was in the nature of an exacerbation or aggravation or deterioration.
111 Given my finding in relation to injury, it follows that Mr Small needed to establish, on the balance of probabilities, that employment was a ‘significant contributing factor’.
112 Of course, for completeness, I note that the authorities refer to there being ‘a very substantial overlap between the two tests and, in many cases, there is no discernible difference between them’.[8]
[8] Attanayake v Simplot Australia Pty Ltd [2019] VSC 387 at [38] citing Zlateska v Consolidated Cleaning Services Pty Ltd VSCA 141
113 Before turning to my findings on causation, it is convenient to consider the issue of the plaintiff’s credit. Mr Small’s credit was, as I observed previously, central to the resolution of ‘this essentially factual enquiry’ and to the consideration of the matters set out in Clause 25.
Credit of the Plaintiff
114 Mr Small was cross-examined at length on the matters in Clause 25, in particular: the nature of his prior work before starting with Maffra Waste; the nature of his work and the tasks of his Maffra Waste employment; and his activities outside the workplace.
115 During this cross-examination, Mr Small gave frequently contradictory and inconsistent answers to his evidence-in-chief. Having the benefit of observing Mr Small while he was giving evidence to the Court, I formed the view that his responses lacked directness and, at times, were exaggerated or embellished on the matters in dispute. My overall impression was of Mr Small was that he was not an honest or credible witness and that his answers were at times intended to mislead the Court in order to advance his interests.
116 Counsel for Mr Small submitted, that Mr Small may not have been eloquent nor educated but gave evidence commensurate with his background as a manual worker from regional Victoria. These matters should not be held against him in terms of credit. Moreover, the important facts were corroborated.
117 Of course, I accept that Mr Small was a person with quite minimal education. That may explain, for example, not appreciating the difference between an initial WorkCover certificate and lodging a claim. However, Mr Small’s evidence was different to having a limited understanding of the technicalities of WorkCover. His evidence, frequently repeated, was that he ‘didn't know about WorkCover’. When asked what he knew about WorkCover, he said ‘nothing really,’ saying he ‘found out about it’ when his family told him to look into it. I found his evidence on this issue rather implausible particularly given the workplace injury in 2013. Then, in cross-examination, he contradicted his earlier evidence, saying he was aware of WorkCover, but didn’t know the cause of his back trouble in April 2018.
118 More importantly, it seemed to me that Mr Small’s evidence as to the ‘nature of the work’ and the ‘particular tasks’ of his Maffra Waste employment lacked credibility on critical disputed facts. Those were: the proportion of time spent on the recycling work; how the key tasks of that work were performed; and what some key tasks entailed.
119 An example of Mr Small’s tendency to give misleading answers about his work was when, in examination-in-chief, he said when he was on ‘hard rubbish’ (collecting curb-side household hard rubbish), he worked ‘five full days a week’ and ‘did that two to three months of the year’. Yet, Ms Shingles’ evidence was that Maffra Waste lost that contract in 2014.
120 Another example the frequency of doing the recycling work which Mr Small said was a minimum of two days a week up to three or four days per week. On those days, he could do a full eight-hour day. In cross-examination, he changed his evidence saying he would not do a whole day on recycling work as there would always be other jobs in the workshop to do. He also said he could be doing the work on his own. His evidence on this was also contradicted by Ms Shingles. I will return to her evidence later in these reasons.
121 Regarding the nature of the recycling work, Mr Small’s evidence focussed on manually handling very heavy items such as concrete waste, blocks of bricks. He said also, for example, ‘washing machines were a regular item’. He described having to manually lift such heavy items up from inside the bin over the top and out. However, by contrast, in cross examination, Mr Small contradicted that evidence, conceding that not all items needed to be removed from the bins. Rather, some materials were left in the bins and the whole bin would be emptied into the garbage truck on a front loader. Again, his evidence on this was also directly contradicted by Ms Shingles.
122 Mr Small’s evidence as to the mechanical work was, by contrast, generally more consistent and unchallenged. Indeed, it is notable that in regard to the mechanical work, with one main exception to which I will return, Ms Shingles deferred to Mr Small’s expertise and experience. She agreed with his estimated weight of brake-drums, conceding that he had lifted such items more than she had and ‘he was probably right’. She also agreed with his evidence as to the processes involved, saying it ‘sounded right’.
123 It seemed to me that Ms Shingle’s concessions and essential agreement in relation to the mechanical work made Mr Small’s contradictory evidence in relation to the recycling work even more stark.
124 A point of difference related to the task of replacing gear-boxes. Mr Small said, yet another example of his indirect answers, it ‘was a job you would hope not to do more than once a year’. In cross-examination, Mr Small denied gear-boxes had been replaced only two to three times over his whole time. Ms Shingles’ evidence was that four gear-boxes had been done over the course of her 27 years with Maffra Waste.
125 When asked about his decision to claim under WorkCover some fifteen months after ceasing work with Maffra Waste, Mr Small’s evidence was ‘that was what he was doing for a living. That was all he was doing. There was nothing else he had been doing that might have contributed to his pain’.
126 That evidence was squarely contradicted by his evidence in cross-examination. It was put to him that in the period leading up to ceasing work in April 2018, he had also worked on his boat, had children running around at home (referring to the 11 April 2018 GP attendance) and been working on his cars at home. Mr Small’s answer was typical of his frequent evasiveness or lack of directness on disputed matters saying, ‘only on his own cars and only bits and pieces’.
127 Mr Small’s evidence was contradictory and, at times, evasive, in regards to the work on his boat, its nature and extent, the timing of it and even the boat’s whereabouts.
128 An example of his lack of directness or tendency to mislead was when Mr Small said that having replaced the transom, ‘there was not that much else to do’. Later in his evidence, he said that after the transom was replaced, the outboard motor had to be re-fitted to the boat. Even accepting as I do, that a block and tackle device was used, that was a fairly major outstanding step given the motor’s weight (250 to 300 kilograms according to Mr Small) and the need for three men to do the task (Mr Small and two friends).
129 Mr Small’s evidence that ‘there was not that much else to do’ was also contradicted by his evidence in cross-examination that the work on his boat was to this day incomplete.
130 On the timing of the boat work, Mr Small initially he said he worked on the boat after the Facebook post of 10 February 2018. Then he asserted he hadn’t worked on it in March or April of 2018 or didn’t recall whether he had.
131 Ultimately, after rigorous cross-examination, Mr Small then said he could not have worked on the boat in April 2018 because by then, the motor was back on and he had moved the boat to his mate Tony’s place’. When asked when the boat was moved to Tony’s place he could not say exactly. When asked whether it as before the April 2018 conversation, he said ‘yeah, that was in February’. That was contradicted by Mr Hutchin’s evidence who said the boat had been continuously stored at Mr Small’s house and not been moved other than when Mr Small had moved house. Mr Small did not move house until December 2018 according to his own evidence-in-chief.
132 I found Mr Hutchins’ evidence to be a generally cooperative witness who did his best to give honest answers. Of course, there may have been a degree of bias given the long-standing social friendship, but that made his evidence more compelling when it was inconsistent with the plaintiff’s own evidence.
133 Overall, for these reasons and given the extent of the inconsistencies and contradictions in Mr Small’s evidence, I did not form a favourable impression of the plaintiff whom I did not find to be a witness of truth. I am of the view that his evidence on disputed matters could not be considered as credible or reliable without other corroborative evidence.
134 I now turn to the submissions and my findings in relation to causation.
Whether employment was a significant contributing factor
135 On causation, Counsel for Mr Small made the following main submissions:
a. It was undisputed there was heavy work associated with the mechanical duties. That much was accepted by Ms Shingles in terms of her own observations.
b. Had the defendant contended the mechanical duties were other than as described by Mr Small, the managing mechanic ought to have been called. It was unsatisfactory for an office manager make assertions as to the nature or heaviness of the work when the defendant had qualified people who did the work alongside the plaintiff.
c. As for the recycling work, Ms Shingles’ own evidence was that the majority of her time was spent in the office and only minimal time in the yard area. She also said a full-time staff member was allocated to the recycling work and Mr Small was allocated there to relieve. That was inherently inconsistent with her evidence that the recycling work was always undertaken by two people. Mr Small’s evidence was reliable and ought to be accepted especially where inconsistent with Ms Shingles’ evidence.
d. Ms Shingles initially down-played the heaviness of the work. Only when pressed in cross examination did she concede the heaviness of the work. She also downplayed the evidence regarding the handling of washing-machines, conceding in cross-examination there were washing-machines, but she had not offered them as an item handled in the yard.
e. As for the frequency and heaviness of the recycling work, if the defendant seriously challenged Mr Small’s evidence on that, they ought to have called a worker with hands-on knowledge, not the office manager who did not perform the work herself.
f. Mr Small’s evidence was that both the mechanical work and the recycling work were hard jobs. He would go home with back soreness after a day of heavy work in either the recycling work or the truck maintenance tasks. He had general soreness overnight and would come back the next day. That evidence was not challenged.
g. On Mr Small’s hours of work, Ms Shingles’ evidence was unimpressive. She initially said 30 hours, then conceded his hours were greater than 32 hours. Thus, her evidence was quite consistent with Mr Small and there was no real dispute about that.
h. On Mr Small’s prior work before Maffra Waste, it was never put to him that his back injury was caused by his employment with Wellington nor was there any evidence of a causal link in that regard.
i. As for drawing conclusions regarding the delay in lodging the WorkCover claim, the plaintiff was a stoic person who hoped his condition would resolve. It did not follow from a lack of earlier complaint that he hadn’t had intermittent soreness prior to the April 2018 conversation.
j. If the Court accepted, on the whole of the evidence, there were heavy duties performed by the plaintiff in the course of his work with Maffra Waste; and that the work caused pain (at least general soreness and niggles), then the Court ought to find in the plaintiff’s favour.
136 Counsel for Maffra Waste submitted that, on causation, the plaintiff had failed to discharge the burden of proof on the balance of probabilities. The main submissions were as follows:
a.The evidence of Ms Shingles was that majority of Mr Small’s time was on mechanical work.
b. On the recycling work, Ms Shingles’ unchallenged evidence was that customers hiring bins were specifically advised not to put concrete in the bins. There were dedicated bins for that purpose which did not come to the yard for manual sorting of recyclables. Also, Maffra Waste had lost its contract to collect hard waste in 2014. The plaintiff was asymptomatic in 2014 and it was not open to the Court to find that the collection of hard rubbish contributed to any back injury.
c. Even if the Court was satisfied that the plaintiff did engage in heavy work with Maffra Waste, it did not follow that injury was causally related to his employment. This was because there were a number of factors that supported a finding there was no causal link between the duties and any injury. These were:
· Mr Small’s work on his boat in around February 2018 which included, on his evidence, sanding, painting and rigging a block and tackle to lift out the fit back the motor.
· His other activities outside the workplace such as working on his three cars at home.
· The lack of any contemporaneous history of the nature of his work to the GP on 11 April 2018 or at any time for a further 15 months.
· Mr Small’s long, prior work history as a mechanic since leaving school including eight years in a similar role with Wellington. No doctors consider the nature of Mr Small’s prior work history. Mr Doig makes no reference to his past employment history at all.
137 Those were the submissions.
138 I have already set out my reasons for finding that, on many factual mattes in dispute, Mr Small’s evidence lacked credibility and was unreliable.
139 Furthermore, I do not accept the plaintiff’s submission that it was unsatisfactory for ‘an office manager’ to give the evidence for the defendant on Mr Small’s tasks. (Of course, it is trite to say there is no property in witnesses and it was similarly open to Mr Small, had he wished to so, to call co-workers.)
140 Ms Shingles was cross-examined at length about the nature of Mr Small’s work, his particular tasks and about the operations of the Maffra Waste business. Having the benefit of observing her while she was giving evidence to the Court, I formed the view she was a cooperative witness who generally appeared to give accurate responses to questions asked of her. As I have already observed, she made significant concessions about Mr Small being more expert than she on the mechanical work.
141 Whilst Counsel for Mr Small submitted that Ms Shingles was a ‘coy’ witness, Ms Shingles’ credit in terms of her extensive knowledge and experience of the Maffra Waste business over almost three decades was not seriously challenged. I find that she was far more than an ‘office manager,’ having detailed, practical knowledge of the operational side of the business. An example was her ability to describe the process of mechanical tasks which she had observed many times such as replacing brake-linings. Other examples of her knowledge related to the process for concrete waste going into dedicated hook bins which did not go to the sorting shed; customers being directed on what was not to go into bins; and her knowledge of the year when hard waste collection ceased.
142 Accordingly, I attributed considerable weight to Ms Shingles’ evidence on the nature of the work and the tasks which I found persuasive given her operational knowledge and the fact that it was she who allocated day to days tasks to staff (on Mr Small’s own evidence). It was therefore unimportant that she physically spent more time in the office than the yard.
143 Regarding Mr Small’s hours, it is true Ms Shingles’ evidence lacked clarity. She denied he ever worked more than four days a week. It is thus unclear why the Employer Injury Claim Report of July 2018 stated that his ‘standard hours’ were 30-38 hours across Monday to Friday. On the other hand, she said in the fortnight before the April 2018 conversation, Mr Small had done 22 hours one week and 15 hours on the other. Ultimately, though, she conceded that 30 hours was ‘a guess’ based on the time-sheets and conceded 32 hours on average was more likely.
144 The issue on which I took a more guarded view of Ms Shingles’ evidence was the April 2018 conversation. Her evidence was that on Monday, 9 April 2018, Mr Small came into work and told her he had hurt his back working on his boat at home (which Mr Small denied having said). Under cross-examination, Ms Shingles also said that Mr Small had told her on the Friday before that he was going home to work on his boat.
145 Weighing the whole of the evidence, on balance, I find that Ms Shingles’ recall of this conversation was impaired by the lapse of time and probably incorrect. Instead, I prefer the only contemporaneously recorded account of that day or two. That was the note of Dr Meerkin of her questioning on 11 April 2018 of Mr Small regarding possible ‘precipitants’ for his onset of acute back pain.
146 Two matters emerged from Dr Meerkin’s questioning: the first was a flare-up six weeks before for which he saw a masseuse which helped; the second was of the flare-up the night before for which there was ‘No clear precipitant, but was running around playing with friend’s children’. Dr Meerkin ultimately wrote a Centrelink medical certificate for work.
147 On balance, I find it unlikely that Mr Small mentioned his work on his boat to Ms Shingles when he didn’t mention it to Dr Meerkin. Nevertheless, whether he did or did not, the question of the role of those activities outside the workplace is a matter for my determination in accordance with Clause 25(g) to which I will return.
148 I have already observed that Mr Small did not impress me as a credible witness. Whilst it is true that he also said that the soreness would resolve overnight and he would recover, I find that his evidence of having soreness most of the time when doing heavy work or of this occurring 2-3 days a week is another example of embellishment or exaggeration of matters. If that were true, it is perplexing to say the least that he would not have mentioned the nature of his work to Dr Meerkin.
149 Similarly, Mr Small’s first recorded encounter with a health professional other than Maffra Medical Group was with the physiotherapist, Mr Balaraman, in October 2018. He noted ‘no reason was mentioned’ for the acute episode.
150 Moreover, there are regular attendances at the GP clinic up until 4 July 2019 with no history given or link made with his work at Maffra Waste.
151 I turn now to the medical evidence in relation to causation.
152 Dr Birk’s opined that it was an ‘accumulated injury from years of heavy manual labour’. It is unclear whether Dr Birk was referring to the years with Maffra Waste or the years of heavy manual labour over Mr Small’s working life. Dr Birk also stated that had been ‘no home incident’ that could have contributed. That is of course inconsistent, firstly with Dr Meerkin’s reference on 11 April 2019 to him running around with children at home, and, secondly, with the whole of the evidence as to Mr Small’s activities outside the workplace of which there is no mention.
153 On causation, Mr Doig opined that ‘from the way he has described his job, it was likely that the work itself has contributed to his current situation’. The specific history was ‘that leading up to the time when he developed the problem, he had been moving a lot of concrete slabs and had to do a lot of lifting and carrying…’ There was minimal history given by Mr Small of the mechanical duties. As with Dr Birk, there was also no mention his activities outside the workplace such as the refurbishment of his boat or working on his cars.
154 As for causation, Dr Saxby opined as there was no evidence of any specific incident at work, he did not believe he could state that work is a significant factor. That opinion of no assistance at all and I attribute no weight to it given an absence of a frank incident does not, of course, preclude a finding of a work relationship.
155 Dr Dickinson obtained a history of sorting recyclable materials especially timber, concrete and bricks. His one-word analysis of causation (‘No’) was unimpressive to say the least.
156 Weighing whole of the evidence, including my findings regarding the unreliability of Mr Small’s evidence and its inconsistency with the evidence of Mr Shingles, I find that Mr Small has failed to establish the reliability of the histories given to the medical witnesses.
157 That is particularly so in regard to Mr Doig whose supportive opinion on causation was premised on inaccurate and exaggerated accounts which emphasised the handling of concrete and similar very heavy materials. Similarly, Dr Birk had a history of heavy work but limited detail of the nature of it and none regarding his activities outside the workplace.
158 Weighing the whole of the evidence, particularly Ms Shingles’ evidence, I find as follows regarding Mr Small’s work and tasks pursuant to Clause 25 (a) to (c):
i. Mr Small was employed from July 2013 as a diesel mechanic/driver with other labouring work. By late 2014, he was working around 32 hours a week.
ii. Thereafter, Mr Small worked an average of 32 hours a week, across Monday to Friday but sometimes only four days.
iii. Mr Small spent the majority of his time on maintenance and servicing of trucks, then driving trucks, followed by the recycling work. I accept Ms Shingles evidence that his duties as a mechanic were nearly full-time and if he ran out of that work, he would be driving a truck to pick up hook-bins. I accept her evidence as more probable given he was employed as a qualified diesel mechanic and also accepting her evidence that there was staff member employed full-time on the recycling work.
iv. The mechanical work, and some tasks in particular such as replacing brake-linings, were both awkward and heavy, as was conceded by Ms Shingles.
v. The recycling work was likely performed about one day a week for 5-6 hours at a time (as Mr Small agreed);
vi. The recycling work was manual, physical work that involved sorting and moving some items out of the bins over the side. I prefer Ms Shingles’ evidence that concrete waste went into dedicated bins and was not found in bins sent to the yard. If there was concrete waste, it was to be left in the bottom and a forklift would move the bin. There may have been items such discarded washing-machines or sinks but they were likely more prevalent when Maffra Waste had a contract for hard waste back in 2014.
159 I now make the following findings in relation to Clause 25(f) the lifestyle of the worker and (g) the activities of outside the workplace:
i. On weekends, and when not at work, Mr Small had been carrying out manual labour to refurbish his boat over a period of months including physical activities such as sanding, painting and replacement of the transom.
ii. In in late February 2018, the outboard motor was re-fitted onto the boat by Mr Small and two friends. That time-frame is based on Mr Hutchins’ evidence that it was ‘a few weeks later’ than the transom work depicted in the 10 February 2018 Facebook post. Whilst both Mr Small and Mr Hutchins were emphasised the very force required to use a block and tackle, I find it likely this was physical activity of considerable awkwardness given the heft of the motor. Mr Small was on a ladder and it was he, again according to Mr Hutchin’s evidence, who had rigged up the block and tackle as he was ‘pretty fussy’ about things like that.
iii. I find it likely that work on the boat continued until at least late February 2018 and possibly beyond. The boat remained unfinished at Mr Small’s property until he moved house in December 2018 according to Mr Hutchins. I find Mr Small sought to mislead the Court about the boat being moved to ‘Tony’s place’ in February 2018 to assist his case.
iv. In or around late February 2018, Mr Small had a flare up of back pain for which he saw a masseuse but did not lose time from work or see the GP.
v. Mr Small had three cars that he worked on from time to time.
160 I now turn to the balance of the considerations in Clause 25.
161 Clause 25(d) requires the Court to take into account the probable development of the injury occurring if the employment had not taken place. Weighing the whole of the evidence, I find there was a probability of an aggravation or exacerbation or deterioration of the underlying lumbar arthropathy occurring, absent the Maffra Waste employment, at some point. I make that finding based upon:
a. The nature of the underlying spondylosis and arthropathy condition being degenerate and pre-existing with the presence of ‘niggles’;
b. A work history of manual, physical labour as a diesel mechanic extending back years (without symptoms during these years);
c. The flare-up six weeks before the April 2018 GP attendance;
d. The acute onset of pain in bed in the middle of the night without specific physical exertion; and
e. My findings in relation to the activities of the worker outside the workplace.
162 I do not find there is any evidence of hereditary risks as per paragraph (e).
163 Ultimately, taking into account the factors in Clause 25, I find that the plaintiff has failed to discharge the burden of proof that his employment with Maffra Waste was a ‘significant contributing factor’ to his diagnosed condition.
164 In my view, the evidence supports a multiplicity of factors, but in an evaluation of the the whole of the evidence, I am not persuaded that the work with Maffra Waste was ‘significant’ in the sense of being of ‘considerable amount or effect.’ This is based on my specific findings regarding: the unreliability of the plaintiff’s evidence; his failure to persuade me as to the accuracy of the histories provided to the doctors particularly Mr Doig and Dr Birk; the nature of the work and tasks with Maffra Employment over 32 hours a week; the nature of the physical activities outside the workplace particularly in mid to late February 2018 at around which time there was a flare up of back symptoms; the underlying degenerative condition; and the probability of a deterioration or exacerbation occurring absent the employment.
165 For the sake of completeness, if I am wrong about the causal test, I further find that Mr Small’s diagnosed condition did not arise out or in the course of his employment. I so find for the same reasons as for the ‘significant contributing factor’ test, noting the ‘very substantial overlap between the two tests’.
Capacity
166 Given my finding in relation to causation, it is not strictly necessary for me to make a finding on capacity. However, for the sake of completeness, based on the opinions of Dr Birk and Mr Doig and noting the very limited current evidence, I find it likely that Mr Small did not have an ability to perform his pre-injury employment until at least December 2019. No report was tendered from Maffra Medical Group after Dr Burk’s report of 20 December 2019 and the clinical notes provided did not go beyond 22nd September 2020. Given my considerable reservations as to the plaintiff’s evidence, I am not persuaded that he has had not capacity for suitable employment.
167 However, for the reasons previously set out, I find his employment did not result in or materially contribute to any incapacity for employment.
CONCLUSION
168 For these reasons, I find that plaintiff has failed to discharge the burden of proof to establish an entitlement to compensation under the Act. The parties may make submissions or file proposed minutes of consent as to final orders sought.
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