Totikidis v Citywide
[2014] VMC 11
•28 MAY 2014
| IN THE MAGISTRATES COURT OF VICTORIA |
AT MELBOURNE
WORKCOVER DIVISION
Case No. D13215714
| PAUL TOTIKIDIS | Plaintiff |
| v | |
| CITYWIDE SERVICE SOLUTIONS PTY LTD | Defendant |
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MAGISTRATE: | S GARNETT |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 12, 13, 14 & 15 MAY 2014 |
DATE OF DECISION: | 28 MAY 2014 |
CASE MAY BE CITED AS: | TOTIKIDIS v CITYWIDE |
REASONS FOR DECISION
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Catchwords: S 109 Rejection – issue whether alleged incident occurred – credibility issues- not satisfied the alleged lifting incident giving rise to injury occurred. Proceeding dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Kelly | Nowicki Carbone |
| For the Defendant | Mr Churilov | Hall & Wilcox |
HIS HONOUR:
1 Mr Totikidis is 39 years of age and was initially employed with the defendant from 5 January 2007 for a period of 14 months and then re-commenced employment from 18 August 2008 as a labourer. On 7 April 2013, he was transferred to the Queen Victoria market to perform cleaning and labouring duties. He alleges that he sustained injuries to his back and right shoulder and a subsequent psychiatric condition as a result of assisting a fellow employee to lift a “wheelie bin” containing meat and bones into a skip bin on Saturday 1 June 2013 in the course of his employment.
2 Mr Totikidis lodged a Workcover claim form dated 11 June 2013 which was rejected by the defendant on 8 July 2013 pursuant to s 109 on the grounds that he did not sustain an injury which arose out of or in the course of his employment. Mr Totikidis remained off work because of his condition until 16 December 2013 when he was able to return to work on light duties and ceased work again on 3 March 2014 as a result of his services being terminated for misconduct.
3 The central issues to determine are whether the alleged incident occurred and if so, the nature and extent of the injuries sustained.
4 Mr Totikidis told the court that his duties at the market required him to collect empty cardboard boxes in the aisles which had been discarded by stall holders, place them on a trolley and take them to a compactor truck. He said his job involved lifting and bending activities. He told the court that he worked Tuesday to Saturday from 7 a.m. to 3 p.m. and that on Wednesdays, when the market was closed, his duties required him to lift bins containing meat or fish parts, push wheelie bins and lift wooden pallets weighing 15-20 kg.
5 The evidence revealed that prior to the alleged incident occurring on 1 June 2013, Mr Totikidis was subject to a number of written and verbals warnings concerning his behaviour including incidents on 30 and 31 May 2013. The earlier warnings involved; failing to comply with a request made by his supervisor to clean equipment (19 November 2008), urinating against a tree in a public place (13 February 2009), driving a vehicle belonging to the defendant without the appropriate licence (19 August 2009), attending a tab venue during work hours (14 January 2011), causing $3,600 damage to a touch screen and weighbridge display unit when driving a vehicle (22 August 2012) and leaving work early (17 December 2012). On 30 May 2013, he was counselled as a result of an incident where he asked a stall holder for $5 for a cardboard box and abused a security guard and on 31 May 2013 he was counselled for pushing two members of the public in a trolley along an aisle at the market. Mr Totikidis told the court that he expected to receive disciplinary action as a consequence of these incidents and was worried that he would get the sack.
6 Mr Totikidis gave evidence that at approximately 10.30 a.m. on Saturday 1 June 2013, a fellow employee, Rohet Ali Khen, asked him to help him lift and empty a wheelie bin containing meat and bones into a skip bin. He told the court that he bent down and put his hands under the bin and as he was lifting it he felt pain in his right shoulder and back. He said he told Rohet of the pain and then reported it to his supervisor, Becir Fazlicic. Mr Totikidis told the court that Becir responded by telling him that they were busy, he did not have keys to the office where a written report could be completed and that he should keep working. Mr Totikidis said he continued working in “agony” and later requested Becir complete an incident report but he ignored him. He also told the court that he approached Becir again at 12 noon and told him that he had to go home and attend his local doctor, Dr Berera. Mr Totikidis said that Becir responded by telling him that if he left he should not return on Monday.
7 Mr Totikidis gave evidence that he continued working and in the early afternoon requested Becir to ask other employees to move their cars which were blocking his car, so he could leave but his request was refused so he continued working until 3 p.m. He told the court that when he arrived home he took panadeine and voltaren, rested, stayed in bed because of the pain on Sunday and saw Dr Berera on Monday 3 June. He said that Dr Berera prescribed panadeine forte and provided a certificate of incapacity for 5 days from 4 June as a consequence of a “lumbar spinal sprain”. Mr Totikidis gave evidence that he then rang his manager, Talal Kassem, to report the incident. He said that he was then referred by the defendant to Dr Tran who in turn referred him for physiotherapy treatment at the Melbourne Sports Clinic. Mr Totikidis gave evidence that he was unfit to work between June and December 2013 and returned to restricted cleaning and driving duties between December and 3 March 2014, when he was dismissed.
8 Mr Totikidis gave evidence that he is in pain 24/7, that he cannot move from side to side or bend and he experiences right shoulder “popping” when he uses it. He said that he feels “useless”, his life has been “torn apart”, the incident “is always in my mind” and that his “whole body is in pain”. He also said that both of his shoulders are now sore and the whole of his back and that he no longer assists with home duties because of his condition and he is scared that he might fall down and hit his shoulder or back.
9 Mr Khen gave evidence through an interpreter that he came to Australia from Bangladesh in February 2009 and commenced work as a cleaner with the defendant in 2012. He told the court that his duties required him to work in ‘H’ shed, collect cardboard boxes, place them on a trolley and take them to a machine. He said that he clearly recalls what occurred on Saturday 1 June 2013. He told the court that he asked Mr Totikidis to help him lift a green bin with a red lid containing plastic and cardboard and weighing approximately 20 kg. He said that when asked Mr Totikidis said that he could not help him as he had a “sore back” or “pain in the back”. He said that he told Mr Totikidis that he would do it himself and Mr Totikidis then walked away.
10 A statement of Mr Khen dated 7 June 2013, made to and written by Mr Kassem, Operations Manager and signed but not read by Mr Khen states that; “I came across a bin which was a bit heavier than the others. I asked Paul if he could help me empty a 240 litre bin into a food waste bin. Paul and myself walked back to the bin. Paul lifted the lid of the bin and had a look inside and it had meat and bones inside. Paul then told MD Rohet Khen that he can’t help him lift it because he has a saw back. Rohet then told him ok dont worry thanks. Paul then went back and continued his duties collecting cardboard boxes in A shed”. Mr Khen told the court that his statement was true and he was not told by anyone what to say. He denied that Mr Totikidis said he had injured his back after he commenced to lift the bin and denied that the bin in question was full of meat as it was not a “red bin” and if it was it would require 4 people to lift it and it was not part of his or Mr Totikidis job to do so.
11 A second statement of Mr Khen dated 21 June 2013 made to insurance investigator Mr Frost was tendered. Relevantly, it states; “I wanted to get assistance with lifting a 240 litre wheelie bin containing recycled plastics to lift up into a metal bin. These bins are green with a red lid. When I asked Paul for help he said that he can’t because he has pain in his back. I said it was alright and I got someone else to help me. I think I got Becir, my supervisor to help me”. Mr Khen told the court that if Mr Totikidis hurt his back whilst helping him he would have reported it as that is what they have been instructed to do in workplace safety meetings.
12 Mr Becir Fazlicic gave evidence with the assistance of an interpreter. He told the court that he has been employed with the defendant for a period of 18 years the last 3 years as a Supervisor. He said that Mr Totikidis duties required him to collect empty cardboard boxes, place them on a trolley and take them to a truck for recycling. He gave evidence that Mr Totikidis did not report the alleged injury to him on 1 June as alleged nor did he make a request to leave work early because of any back problem. He told the court that he observed Mr Totikidis at approximately 2 p.m that day when he moved his car so that other employees could gain access to theirs and leave work. He said that Mr Totikidis rang him on Monday 3 June to inform him that he would be off work all week because he was “sick” without providing further explanation. Mr Fazlicic told the court that he told Mr Totikidis that he would have to provide a medical certificate for his absence. He said that he received a further call from Mr Totikidis one week later to inform him that he would be off work for another “couple of weeks” but once again did not give a specific reason for his absence. Mr Fazlicic was adamant that at no stage did Mr Totikidis tell him that he had sustained a back injury at work.
13 A statement of Mr Fazlicic dated 7 June 2013, made to and written by Mr Kassem and signed but not read by Mr Fazlicic states that; “On Monday the 3rd of June I did receive a phone call from Paul Tikidis telling me that he wont be in the rest of the week because he was sick. I asked him to bring a doctors certificate and Paul replied that he already had one and wont be back at work until Tuesday 11th June. At no stage did Paul tell me or report to me that he had a sore back”.
14 A second statement of Mr Fazlicic dated 21 June 2013 made to insurance investigator Mr Frost was tendered. Relevantly, it states; “I work every Saturday and worked day shift from 6 a.m. to 2 p.m. on Saturday 1 June 2013. Paul worked this day and I recall seeing him on this day during his shift from 7 a.m. to 3 p.m. I saw him at 2 p.m. in the office, when he had to move his car in the back shed next to the office which adjoins Franklin Street. He had to move his car so other workers who were finishing at 2 p.m. could get out. When I saw Paul at this time, he was walking normally. He did not say anything to me. He did not report he had hurt his back. I finished at 2 p.m. and the afternoon shift supervisor, Metin Yavuz took over me. I did a handover with Metin and gave me my two way radio. If there had of been any injury incident in morning shift I would have informed Metin of what happened, but there was no injury reported….On the following Monday in the late afternoon, Paul rang me on my company mobile and reported he was sick and not coming in all the rest of the week and would be back on Tuesday 11th June. I did not ask what his sickness was and he did not say what it was. I asked him to get a medical certificate. He did not report having hurt his back. I noted his report of sickness in the roster. Then the next day, Talal Kassem, the Operations Manager informed me that Paul reported he had injured his back lifting a bin on the previous Saturday that we worked. I questioned this because Paul had not made any such report to me on the Saturday. Paul never reported any injury to me and I did not tell him to go back to work after he allegedly reported the injury. I spoke to Paul the next week when he rang me and reported he was off for one week more. I asked him what’s happened that when he said he hurt his back at work lifting bin. He did not say when it happened. I asked him why he had not reported this to me and he said that he had told me, but that is not true and I said to him he had not. I asked him what bin and he said it was when he was helping Ronnie (Mr Rohet Ali Khen) empty a bin”.
15 Mr Fazlicic told the court that he does not speak English very well and that he finds it difficult to understand Mr Totikidis. He disputed that when Mr Totikidis reported the injury he simply did not understand him and also disputed that he would have been held responsible if such an injury occurred to one of the employees on his shift. He told the court that if an employee is injured he would ensure the person was seen by First Aid, attended to by an ambulance or taken to hospital.
16 Mr Talal Kassem gave evidence and did not require the assistance of an interpreter. He told the court that he has been employed for a period of 8 years with the defendant, the last 3 years as Operations Manager which requires him to oversee the Queen Victoria market contract for his employer. He told the court that he spoke to Mr Totikidis following the incident on 30 May involving him trying to “sell” a cardboard box to a stall holder and explained to him that it was a serious matter but that he would not take any disciplinary action. He said he also told Mr Totikidis that he would need to consult with the Human Resources Department as to what action should be taken following the incident on 31 May because his actions were a serious breach of occupational health and safety.
17 Mr Kassem gave evidence that Mr Totikidis rang him on Monday 3 June to inform him that he was sick and would not be at work for the rest of the week. He told the court that Mr Totikidis told him that he had hurt his back when “bending down to pick up a box”. Mr Kassem said that Mr Totikidis told him that he had reported the incident to his supervisor, Becir, and that Becir had told him to keep working. Mr Kassem said that he found this unusual because the normal procedure was that an incident report should be put on his desk following any injury and it had not been done on this occasion. He told the court that he rang Becir who told him that no such incident had been reported to him by Mr Totikidis. He said that when he told Becir that Mr Totikidis had told him he had reported it to him, Becir replied “bullshit”. Mr Kassem also told the court that later in the week he received a call from the defendant’s compliance officer, Nikki Cardin, who told him that Mr Totikidis had told her that he had injured his back “lifting a meat bin”. During cross examination, Mr Kassem was adamant that he has a very clear memory of what occurred and does not find it difficult to understand Mr Totikidis. However, he was incorrect when he told the court he logged the incident on the computer system on or before Wednesday 5 June as the records reveal he did not do so until 14 June. Mr Kassem disputed that he suggested to either Mr Khen or Mr Fazlicic what they should put in their respective statements.
18 A handwritten statement of Mr Kassem dated 7 June 2013 was tendered. Relevantly, it states; “I asked him how he hurt his back and Paul told me while picking up a cardboard box in A shed. I replied a cardboard box did you say, what was it full of? Paul replied it was a empty cardboard box when he bent down to pick it up he felt a twinge in his back”. A statement of Mr Kassem dated 21 June 2013 and made to insurance investigator Mr Frost was tendered. Relevantly, it states; “The first I knew about Paul’s alleged back injury was on Monday morning 3 June 2013 at about 10.30 a.m. Paul called me on my mobile phone and he told me he would not be at work for the rest of the week because he had hurt his back picking up a box in A shed. He said it happened on the previous Saturday, 1 June 2013. I asked him if he reported it to his supervisor, and he said yes he had and I asked him what his supervisor did and he replied he sent him back to work. I know his supervisor Becir Fazlicic who is very experienced and would not make him go back to work”.
19 The clinical notes of Dr Berera reveal that Mr Totikidis attended on Monday 3 June with a history recorded; “was pushing trolley at work and bent down to pick up a box on 1st June – had felt the pain straight away in lower back. Had kept on working. Has soreness over the right scapula area and lumbar spine and paraspinal muscles. Movements are painful”. Dr Berera prescribed Brufen and provided him with a normal sickness certificate for a period of five days. On 11 June, Dr Berera obtained a history from Mr Totikidis that he “had lifted a heavy bin”. The clinical notes of Dr Tran reveal that Mr Totikidis attended the clinic on 11 June and provided a history that; “on 1 June 2013 whilst working – was lifting a heavy bin with work colleague – felt pain in lower back and immediately put bin down. Notified supervisor who advised to continue working. Pt carried on working but by end of day – back pain flared to include whole back now. Awoke next morning with ongoing whole back pain”. Dr Tran diagnosed that Mr Totikidis was suffering from mild, acute back pain, mechanical and muscular in nature and that he would be fit to undertake alternative work and referred him to Mr Adams, Physiotherapist who initially saw him on 17 June 2013.
20 An MRI of the lumbar spine performed on 4 September 2013 reported mild facet arthropathy at L4/5 and L5/S1 with an annular fissure being shown left foraminally at L4/5 with no disc extrusion or radicular displacement. An MRI of the right shoulder performed on 18 September 2013 reported mild tendinopathy of the distal supraspinatous tendon with mild subacromial/subdeltoid bursal fluid and minimal synovitis of the acromioclavicular joint which is likely to represent low grade degenerative changes.
21 Dr Berera referred Mr Totikidis to Mr John Cunningham, Orthopaedic Surgeon, who he first saw on 20 September 2013. Mr Cunningham obtained a history that Mr Totikidis injured his back on 1 June 2013 lifting a bin and noted that on examination Mr Totikidis was observed flexing forward comfortably to undo his shoes and was able to walk with a normal gait but when asked to keep his knees straight and touch his toes he could barely get his hands past his hips. He noted that extension was also grossly limited, he observed him getting on and off the examination sofa quickly and easily and observed him putting on his shoes quite comfortably from a semi erect position. Mr Cunningham reported that the MRI indicated a small annular tear at L4/5. Dr Berera also referred Mr Totikidis to Mr Michael Johnson, Orthopaedic Surgeon who he first saw on 3 November 2013. Mr Johnson recorded that Mr Totikidis injured his back on 1 June after lifting a wheelie bin that “weighed 100 kg with a colleague”. He reviewed the MRI which he noted demonstrated minor lumbar degeneration with a non compressive annular tear in the left exit foramen at L4/5. Mr Johnson was unsure of the cause of his reported symptoms and thought it could possibly be related to the L4/5 pathology. He suggested Mr Totikidis see Dr Clayton Thomas, Rehabilitation specialist.
22 Mr Totikidis tendered a medico-legal report from Associate Professor Myers who assessed him on 5 February 2014. He obtained a history of injury on 1 June as a result of Mr Totikidis “helping another worker to shift a large bin full of meat that allegedly weighed more than 100 kg”. He states that as they got it to about two thirds of the way up to the skip, he felt a sharp pain in the low back and in the right shoulder”. Associate Professor Myers diagnosed that Mr Totikidis sustained an annular tear of a disc and inflammatory changes in the rotator cuff and joints in the right shoulder. The defendant tendered medico-legal reports from Dr Davison and Dr Soliman but for reasons I will discuss, they do not assist with my determination of this matter. The defendant also tendered surveillance DVD’s taken on 2 and 4 January 2014 and 12 April 2014. The surveillance material, whilst only a “snapshot in time” certainly revealed that Mr Totikidis is able to engage in a far greater range of activity and movement than he would otherwise have the court believe he is capable. It depicted him using a step ladder to perform maintenance work on the front of his boat, use his right arm/hand to use a screwdriver, crouching, carrying an aluminium ladder in his right hand/arm, squatting, carrying bags of groceries, walking without apparent restriction, driving and getting into and out of his car without apparent restriction, pulling his seat belt across his chest with his right arm and walking briskly and swinging both arms without apparent restriction. The DVD surveillance material appears to contradict his assertion that he “feels like a crippled man” as he told Dr Davison at his consultation on 10 February 2014.
23 I found Mr Totikidis to be an evasive and unimpressive witness. I did not find him to be a truthful witness. I do not accept that the incident he described as causing injury to have occurred. I found Mr Khen, Mr Fazlicic and Mr Kassem to be honest and credible witnesses and accept their version of what occurred notwithstanding some inconsistencies between their evidence and the statements made by them shortly after the alleged incident. I do not find that their evidence was tainted by any form of collusion between them.
24 I do not accept the evidence of Mr Totikidis that he was required as part of his duties to lift heavy bins containing meat and bones. I accept the evidence of Mr Khen that the lifting incident did not occur. I accept the evidence of Mr Fazlicic that Mr Totikidis did not make a report to him on Saturday 1 June 2013, that he had injured his back whilst working. I accept the evidence of Mr Kassem that Mr Totikidis reported to him on Monday 3 June 2013, that the injury occurred when he was “bending down to pick up a box” rather than lifting a heavy wheelie bin as alleged. The history he gave to Mr Kassem is consistent with the history of injury he gave to Dr Berera on that date. I find that the alleged incident did not occur and on this basis I find that Mr Totikidis did not sustain an injury which arose out of or in the course of his employment with the defendant.
25 Accordingly, the proceedings are dismissed.
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