Vujica and TNT Australia Pty Ltd (Compensation)
[2015] AATA 984
•18 December 2015
Vujica and TNT Australia Pty Ltd (Compensation) [2015] AATA 984 (18 December 2015)
Division
GENERAL DIVISION
File Number(s)
2014/4540
Re
Miroslav Vujica
APPLICANT
And
TNT Australia Pty Ltd
RESPONDENT
DECISION
Tribunal Dr I Alexander, Member
Date 18 December 2015 Place Sydney The decision under review is affirmed.
.................................[sgd].......................................
Dr I Alexander, Member
CATCHWORDS
Worker’s Compensation – whether injury occurred in the course of employment – whether applicant entitled to compensation – inconsistent evidence before Tribunal – Tribunal not satisfied that injury occurred in the course of employment – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 ss 5A, 14
REASONS FOR DECISION
Dr I Alexander, Member
18 December 2015
INTRODUCTION
From 28 January 2003 to January 2014 Mr Vujica was employed by TNT Express at Enfield as a permanent part-time Dockhand.
On 14 November 2013 Mr Vujica was given a written warning by TNT due to unsatisfactory conduct in failing to comply with the requirement to wear a safety belt at all times when driving forklift machinery. He was suspended from operating a forklift and was instead required to work in the trailer loading area.
Mr Vujica claims that at approximately 6:30pm on 5 December 2013, while working in the trailer loading area, he experienced pain in his neck, upper back and shoulders.
On 6 December 2013 Dr Pukanic, GP, provided a Workcover NSW certificate of capacity in which he stated that Mr Vujica had “no current work capacity for any employment” until 13 December 2013.
On 9 December 2013 Mr Vujica submitted a claim for worker’s compensation.
On 21 January 2014 Mr Vujica was given notice that his employment was terminated for serious misconduct, on the basis that he had performed work at another facility, Toll Moorebank, from 6 December 2013 despite have having produced two medical certificates to TNT declaring total incapacity for this period.
On 27 February 2014 it was determined that TNT was not liable to pay compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) on the basis that it could not be established that Mr Vujica’s claimed injuries resulted from his employment with TNT as he was working at Toll during the same period.
In a reviewable decision dated 7 July 2014 a reconsideration officer for TNT Australia affirmed the earlier decision.
In these proceedings Mr Vujica, who was self-represented, seeks review of the reviewable decision.
I note that the circumstances surrounding Mr Vujica’s claimed injury and incapacity were considered as part of an application he made to the Fair Work Commission and in a decision handed down on 1 August 2014 his application for unfair dismissal was dismissed.
ISSUES
Compensation is payable pursuant to the provisions of section 14(1) of the SRC Act which reads as follows :
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
The definition of “injury” in s 5A of the SRC Act is as follows:
5A Definition of injury
(1) In this Act:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment
Mr Vujica contends that on 5 December 2013 he suffered an injury in the course of his employment with TNT and therefore is entitled to be paid compensation for the ensuing incapacity for work.
The Respondent contends that Mr Vujica did not suffer an injury on the 5 December 2013 arising out of, or in the course of his employment with TNT. The Respondent further contends that even if he did suffer an injury it did not result in any incapacity for work or impairment.
It follows that the Tribunal must consider whether on 5 December 2013 Mr Vujica suffered an injury while at work for TNT and, if so, whether he suffered any incapacity for work or impairment.
Mr Vujica’s statements
In a written statement dated 11 May 2015 Mr Vujica notes that on 5 December 2013 he was rostered to manual loading of linehaul trailers with a shift time of 17:00 to 22:00 and states the following:
“At approximately 18.30 I felt unusual pain in my neck, upper back and shoulders which was particularly intense on moving my arms above the chest level……I say “unusual pain” as this was not a simple muscle ache, but pain inside my shoulder joints, accompanied with restricted movement. Realizing that I may have injured myself …..I located my supervisor Mr Kim Finau and informed him that I have sustained an injury and would like to report it. He then instructed me to continue working until he finds someone from the management to take me into the First aid room and fill out an injury report. Upon receiving that direction, I continued my work as best I could, in pain. Approximately 50 minutes later, he returned and called me into the First aid room and completed the injury report himself. This was at 19.20”
A copy of an entry in the First Aid Register of Injuries provided to the Tribunal notes that an injury described as “shoulders and upper back sharp pain when lifting arm shoulder height” was reported to supervisor at 19.20”.
Mr Vujica states that 35 minutes later he was examined by a paramedic who requested that he accompany him to the offices of Workcare in Bankstown. Mr Vujica indicated that he refused to be treated by Workcare and would see a doctor of his own choice the next morning.
I note that there is no record of the examination by the paramedic in evidence before the Tribunal.
On 6 December 2013 Mr Vujica was seen by Dr Pukanic who is claimed to have said that the “injuries appear to be serious and probably won’t clear up quickly”.
Mr Vujica notes that in 2010 he had a similar work related injury which was treated with physiotherapy and expresses dissatisfaction with his treatment at that time.
In cross examination at the hearing Mr Vujica initially said that he was not injured at 6.30pm but conceded that times recorded in the registry of injury were correct. He said that he stopped work at 6.30pm and started searching for his supervisor and that it took 50 minutes to find him and was then instructed to keep working.
In a written statement dated 24 June 2015 Mr Vujica notes that “For the entire 2013/2014 financial year I was only employed by the Respondent – TNT Australia Pty Ltd as a Grade 1 Dockhand”.
MEDICAL EVIDENCE
Dr Pukanic – General Practitioner
Dr Pukanic provided five Workcover NSW certificates of capacity. In the first certificate dated 6 December 2013 he notes that Mr Vujica “developed pain in the neck shoulders and back whilst lifting boxes”, and makes a diagnosis of “of strained cervical, thoracic L/S spine, strained both shoulders” but provides no other clinical details. A management plan is described as “physiotherapy” and capacity for employment as no current work capacity for one week.
In the second certificate dated 13 December 2013 the management plan is described as “physiotherapy to continue” and referral for several radiological studies with no other clinical details. Capacity for employment is described as no current work capacity until 13 January 2014.
In the third certificate dated 13 January 2014 Dr Pukanic notes that Mr Vujica has a capacity for some type of employment for 5 hours per day for 3 days per week with certain physical limitations and “office duties only” until 10 February 2014.
In the fourth certificate dated 10 March 2014 there are no changes apart from a capacity of some type of employment for 5 hours per day for 5 days per week with limited duties until 8 April 2014.
In the fifth certificate 7 April 2014 Dr Pukanic dated deletes “L/S spine” from the diagnosis but makes no other changes but recommends limited duties until 5 May 2014.
I note that Mr Vujica signed all of the certificates declaring that he had “not engaged in any form of paid employment, self-employment or voluntary work …”
In a report dated 31 January 2014 Dr Pukanic notes the following history:
“On 5 December 2013 at around 6.30 pm he was lifting boxes into a truck when he developed pain in the neck, upper back and both shoulders. He also developed pain in the lower back. He was complaining about pins and needles in the fingers of his left hand. The patient ceased his work and waited for the end of his shift at 10.00 pm. I saw the patient for the first time on 6 December 2013.”
I note at this point that the history noted by Dr Pukanic is not consistent with other evidence before the Tribunal including Mr Vujica’s written statement.
Dr Pukanic notes that Mr Vujica’s complaints are “pain in the neck radiating into the left upper limb, pins and needles in the left hand, pain in his right upper limb, pins and needles in the left hand, pain in the right upper limb, pain in the middle of the back and lower back”.
On examination Dr Pukanic notes the following:
“Cervical spine was tender on palpation; movements were painful and restricted. Both shoulders were tender at the anterior aspect of the joint; movements were painful and restricted especially elevation. The thoracic spine was extremely tender throughout. The lumbosacral spine was very tender, movements were painful and restricted. P/V muscles were tender and stiff bilaterally, spasm of the paravertebral muscles was noted.”
Dr Pukanic notes the abnormalities reported in the MRI scans of the spine and expresses the following opinion :
“Mr Vujica has sustained a musculo-liggamentous strain to his cervical spine with nerve root irritation into both shoulders and left upper limb. He has also sustained a musculo-liggamentous strain to his thoracic and lumbosacral spine and a strain to both shoulders. It is consistent that the accident at work on 5 December 2013 caused the symptoms he described.”
Dr Pukanic also states that “when I last saw the patient on 13 January 2014 he informed me that his condition has considerably improved and he was certified to be fit for suitable duties”.
In cross examination Mr Vujica agreed that on 6 December he had seen Dr Pukanic for the first time and was unable to explain why he didn’t attend the Liverpool Family Medical Centre which had usually attended since 1996.
Dr John Barlow
In a letter to TNT Express dated 16 December 2013 Dr Barlow, Injury Management Consultant, notes that on 5 December 2013 whilst unloading a trailer and repetitively lifting freight above his head Mr Vujica developed “pain in the neck and both shoulders and back” and said that “the reason he was doing this job, was that he was “punished” by another manager”. Current complaints are noted as “pain in the neck and both shoulders and is seeking investigation for this”.
On examination on the 13 December 2013 Dr Barlow describes Mr Vujica as “an angry young man” and suggests that he is “punishing you, the employer, for being punished by another manager”. He notes “voluntary restriction of all neck and shoulder movements” but on his examination believes this “to be exaggerated and totally inconsistent”.
Dr Barlow concludes that “there is no doubt that this fellow is fit for at least restricted duties. I do not believe that he has any organic pain of any great description. He is certainly fit for some sort of duties, namely lifting 5 kilos, not pushing or pulling and not working overhead at this stage.”
Liverpool Medical Centre Progress Notes
An entry by Dr Crickitt dated 10 February 2014 notes the following:
“no significant problems no known allergies 1- lost job and going for tuck licence (MC) 2- 8/7 ago helped friend work on car and pain in L low chest wall sicne –is improving ……..vision 6/5 bilaterally, no field defects tender L7/8 ribs at costochondral joint
I note that in this consultation there is no mention of Mr Vujica’s claimed work related injury and that his apparent capacity to work on his friend’s car is during the period noted in Dr Pucanik’s third Workcover certificate.
Radiological Studies
A whole body Bone Scan performed on 16 January 2014 is reported as a “normal study”.
An MRI scan of the spine performed on the 20 January 2014 is reported as showing no significant abnormalities in the thoracic spine, very mild degree of posterior disc bulging at C3/C4, C4/C6 in the cervical spine, and a mild degree of posterior disc bulging and flaval ligament hypertrophy at L3/4 and L4/5.
An MRI scan of the right shoulder performed on 21 January 2014 is reported as showing “moderate focal tendinosis with suspicion of undersurface partial thickness tear involving the anterior most fibres of the supraspinatus tendon…..ganglion cyst arising from the inferior surface of the acriomoclavicular joint …..mild acromioclavicular joint arthropathy”.
An MRI scan of the left shoulder performed on 21 January 2014 is reported as showing “focal mild to moderate tendinosis in the anterior aspect of the supraspinatus tendon ….mild acromioclavicular joint arthropathy…..and small …..ganglion cyst.”
Dr Brian Stephenson – Orthopaedic Surgeon
In a report dated 10 February 2014 Dr Stephenson notes that he saw Mr Vujica on the 5 February 2014 and records a history of present injury as follows :
“On 5 December 2013 he had been doing manual loading work. This included lifting material above his head when he injured his neck and shoulder area, he said. He was referred for physiotherapy. He said he rides his motorbike to and from physiotherapy.”
Dr Stephenson notes that Mr Vujica suffered an injury to his left shoulder in 2010, was treated with physiotherapy and returned to normal duties 6 months later.
Present complaints were noted as “neck and bilateral shoulder pain. He said the pain occurred at the neck and across to each shoulder and at the interscapular region. He said the pain now was not intense”.
Physical examination revealed “no objective findings of radiculopathy in the upper extremities ….. a satisfactory functional range of neck movement …measurable restriction of range of motion of both shoulders…..good trunk rotation …..forward flexion to lower mid-tibial level…..no increase in sciatic tension….power and sensation were satisfactory in the lower limbs..” Active abduction of the both the right and left shoulder was restricted to 90 degrees which is 50% of the normal range.
Dr Stephenson concludes that “the history of injury is likely to be related to an episode of musculoligamentous strain involving the cervical area as well as soft tissue strain to both shoulders” and “there is a diagnosis of bilateral supraspinatus tendinosis of the shoulder which would account for some painful symptoms particularly on elevation of the shoulders related to impingement”.
Dr Stephenson states that Mr Vujica “would have developed this condition regardless of his employment with TNT”. Although it is not entirely clear, it would appear the ‘condition’ is the bilateral “tendinosis” described in the MRI scans and not the episode of “soft tissue strain to both shoulders”.
In his evidence at the hearing Dr Stephenson conceded that that in preparing his report he was not aware of any the circumstances with respect to TNT, the Fair Work Commission, Newline Transport or Mr Vujica’s alternative work arrangements with his own trucking company.
Dr Stephenson indicated that he relied on the history provided by Mr Vujica as well as the clinical findings and investigations and explained that his diagnosis of an episode of “musculoligamentous strain” meant that Mr Vujica “probably strained his neck and shoulders with the work”.
Dr Stephenson conceded that the radiological findings in respect of the cervical spine could not explain his clinical findings of some restriction in active neck movement and agreed that it was not possible to attribute the findings to the claimed episode of injury.
Dr Stephenson agreed that the pathology described in the MRI scans of the right and left shoulder were different and in my view, did not provide a satisfactory explanation for his clinical finding of the limitation of active abduction in each shoulder to exactly 90 degrees. Also he agreed that it was not possible to determine when the pathology in the shoulders had arisen unless there were previous radiological studies for comparison.
Dr Stephenson conceded that the pathological changes described in the scans of the cervical spine and shoulders were more likely than not to have been present before the claimed episode of injury and probably had been present for a considerable length of time.
OTHER EVIDENCE
Emails and file notes
Email from Maria Mapapalangi, Return to Work Co-ordinator, dated 6 December 2013:
“ ….Tried to contact the worker few times this morning but no answer and no active VM. Phone Workcare who advised that the worker refused Workcare transport and wanted to see his own GP. I will try contact him later on throughout the day”
Email from Mr Brett Arentz, IMA Workplace Risk, dated 9 December 2013:
“Miroslav showed up today after being unable to contact on Friday. He submitted a Comcare claim form with Maria for the time off and is currently unfit for work until Friday 13-12-13. When asked why he didn’t answer his phone on Friday he said that he will only accept letters and won’t pick up his phone. Whilst Maria was taking him through the claims process he said that he is refusing to see any company doctor and we cannot organise this. He knows his rights and this is up to the insurer and he knows the NSW act. He was asked if he would like a union delegate with him as a support person whilst we were taking him through the claims process. Miroslav said he was not a union member……I explained to Miroslav that TNT was self insured and we work within the guidelines of the SRC act which is federal and printed off section 36 for him to review……Miroslav said he would be in the bathroom. Following that he left TNT depot on his motorbike. I have made an appointment for him to see the company doctor Wednesday 1.00 PM and have sent letters to him about appointment by courier.” [sic]
File Note by Mari Mapapalangi dated 9 December 2013:
“10.00 am Refuses to be contacted via mobile or over the phone. Only form of communication is via a form of letter…I advised him we can send him to a company GP if need be, to be reassessed and for a second opinion, he advised that we can’t as we are not the insurer. Brett than came in and gave him a copy of the S36 comcare act. Worker completed claim forms, as advised he will be in the bathroom….Dougle advised that he saw him take off in his motor bike.”
“Phoned the workers NTD, Dr M Pukanic and asked for the fax number. I introduced myself and advised the GP that I will shortly send of TNT suitable duties list, the GP replied by saying that the worker may not be fit to perform suitable duties, due to level of pain his in, and that he will need a claim number ASAP to be assessed. I advised the GP that the worker drove to work today in his motor bike the GP advised in a infuriated tone and said to get him a claim number ASAP and then hung up.”
Statement – Jennifer Hunt, Employee Relations Manager for TNT Australia Pty Ltd
The Tribunal was provided with a copy of a statement dated 15 May 2014 which was prepared by Ms Jennifer Hunt, Employee Relations Manager for TNT Australia Pty Ltd for the purposes of a Fair Work Commission hearing in relation to an application by Mr Vujica for an unfair dismissal remedy.
Ms Hunt stated that she became aware of Mr Vujica in November 2013 when she reviewed a letter sent by him dated 27 October 2013 in which he complained of TNT ‘stealing’ from him by adjusting finishing times.
In December 2013 she was given a copy of an undated letter sent to Ms Davies, the HR Director, which contained details of Mr Vujica’s concerns about wearing a seatbelt while operating a forklift. The letter named various managers and included allegations of illegal and unsafe practices in the Enfield depot.
Ms Hunt commenced an investigation and on 16 December 2013 sent Mr Vujica an email with an attached copy of the letter detailing the findings of her investigation in respect of his complaints about the seat belts.
In an email dated 17 December 2013 Mr Vujica stated that he did not write the letter and claimed that it had been written and sent by his then girlfriend.
Ms Hunt stated that she did not accept Mr Vujica’s claim that he had not written the letter because she “did not believe that an unnamed girlfriend would have compiled a letter with specific detail as to the function of the seat belt, the names of the relevant managers …..and containing the written warnings and safety bulletins”.
At a subsequent meeting when asked about the letter sent to Ms Davies and how his then girlfriend had the relevant knowledge of individuals and events he said “I don’t know. I have only recently seen a copy of the letter”.
Mr Vujica told the Tribunal that his then girlfriend had written and sent the letter and that he did not know about the letter until he found a copy of it in his printer but was unable to explain how his she had been able to provide to precise workplace details which were contained in the letter.
He stated that he had not arranged for her to provide any evidence to support his claim because he had not seen “his ex-girlfriend for a while”.
On 18 December 2013 Ms Hunt was informed by Mr Leak, the Enfield HUB Manager, that TNT had become aware that Mr Vujica was performing work for Toll during December 2013 which was the period of time he claimed to be incapacitated for any work at TNT.
On 23 December 2013 Ms Hunt stated that she received an email form Mr Leak as follows:
“…as per our discussion today the Toll Sydney Operations Manager…….has confirmed that Michael has been working as a contractor driver for a least 12 months through New Line Transport operating out of Toll’s Moorebank facility and this includes last week when Michael was unable to attend work even for suitable duties as a result of his work related injury’ [emphasis added]
When asked about the contents of this email, at the hearing, Mr Vujica initially agreed that he had been working in the week prior to 23 December 2013 but when pressed for further details his answers became evasive and eventually he said he did not work.
Ms Hunt stated that on 15 January 2014 her counterpart at Toll confirmed that Mr Vujica had been performing work at Toll’s Moorebank facility through Newline Transport Pty Ltd. He also told her that he had in his possession an email sent by Mr Vujica to Mr Richards, a Toll Manager.
A copy of the email dated 10 January 2014 was provided to Tribunal in response to a subpoena and states inter alia the following :
“My name is Miroslav Vujica (Michael), and I work for one of your linehaul contractors. Mid- December your Linehaul Manager …….has been instructed by his superiors (presumably you) to stop allocating any work to me personally. I’ve been led to believe that TWU delegate ……..has made a number of calls to the Management of Toll-IPEC to bring me into disrepute and deprive me of any work that might have normally been allocates to me. This situation leaves is all at a disadvantage. Mr … is trying to get the operators to do the work, and here I am perfectly willing and able to do it, sitting not 800m away from the depot …..but he is under instruction not to allocate any work to me.. …….we have had successful trouble free ….arrangement for over two years, and I would like to resume as soon as possible ……I still do not know the reason why I am not being allocated work ..”
On 16 January 2014 Ms Hunt attended a meeting with Mr Vujica. Also present were Mr Leak and a Union organiser. At that meeting it was agreed that the relevant issue was whether Mr Vujica had been driving for Toll during the period he had been declared unfit for all work after 6 December 2013. When confronted by the contents of the email sent to Mr Richards and asked whether he had sent it Mr Vujica declined to answer the question and stated that “I have not worked at Toll from 6 December 2013 and have never worked at Toll”.
Ms Hunt stated that at the end of the meeting Mr Vujica was told that on the basis of information before it TNT considered he had engaged in serious misconduct because he had “performed work for Toll for the period from 6 December 2013, and you have produced two medical certificates to TNT claiming worker’s compensation injury during this time. This constitutes a fraud against TNT, and your employment is terminated”.
When asked about the email to Mr Richards at the hearing, Mr Vujica’s answers to questions became somewhat evasive but he agreed he had sent the email and that the contents were accurate. He acknowledged that the email implied the he was personally able to work but said that he had he had written the email on behalf of his company.
Emails between Toll employees dated 18 January to 20 January 2014
Email dated 18 January 2014 from Security Gate Sydney Toll IPEC: “when Nick returned to site from Newcastle to drop trailer back – Wayne the banned driver was in the passenger side …… also I believe his other driver Miroslav is banned from this site due to on going worker comp issues at another company. Well I saw him at the Canberra depot when Nick went down there with a load..I saw him on camera at the depo helping off load the trailer. So Nicks obviously deliverately disobeying instructions and engaging these banned drivers with hes work here” [sic].
Email dated 20 January 2014 from Divisional Security Manager Toll Global Express: “…can’t have Wayne in our depots nor in any vehicle carrying our loads , he is awaiting a culpable drive causing death charge…….also, if Miroslav is on the Not To Use list, how was it we used him?”
Email dated 20 January 2014 from NSW Linehaul Manager: “Michael forgot to mention it was the 3/01/2014 the last time Newline covered a trip to Canberra and that this is the 1st time I am being made aware that Miroslav was actually down there at Canberra unloading…..”
At the hearing Mr Vujica denied working being in Canberra on 3 January 2014.
Tax Invoices – Taurus Freightlines
At the hearing Mr Vujica told the Tribunal that he is the sole Director of Taurus Nationwide Transport Pty Ltd (Taurus Freightlines) and that the company owns a single prime mover and that he is usually the only driver. He conceded that he did regular contract work with Newline Transport Pty Ltd which included contracts for Toll Ipec and explained that generally after he had finished his five hour shift with TNT he would drive to various destinations which were usually between 2 to 4 hours each way.
Tax invoices provided by Newline Transport Pty Ltd under subpoena revealed that between 16 September and December and 19 December 2013 Taurus Freightlines billed for 12 runs; 2 runs to Newcastle Gosford, 5 to Nowra/Wollongong, 2 to Nowra/Bateman’s Bay, 1 to Bathurst, 1 to Newcastle/Taree and 1 to Coffs Harbour.
Mr Vujica was asked by counsel for the Respondent whether he had driven the runs on 9,10,11,12 and 15 December 2013 and Mr Vujica initially answered yes.
When asked whether he did the run 16 December 2013 Mr Vujica said he couldn’t remember and then asked to be reminded when Dr Pukanic’s certificate had expired. Thereafter his answers to questions became evasive and he said he couldn’t remember.
Mr Vujica was asked whether he had driven the runs billed on 28 and 29 January 2014 (Melbourne/Sydney). Initially he said yes and then changed his answer to “I can’t remember”.
I note that there were also 4 runs billed in February 2014.
Later in cross examination Mr Vujica claimed that he did not do any of the runs in December and did not work during the period he was certified as unfit for work. He claimed the runs were all done by a person called “Rex” but was not able to produce any evidence to support this claim. He said that Rex would do the runs late at night, for example 5 hours to Newcastle and back, and use the truck for his own work purposes during the day and subcontract for other companies. Rex was apparently a bankrupt and Mr Vujica did not have to pay him.
CCTV
In an email dated 12 December 2013 a TNT OHS Advisor requested Mr Mitchell, Security Coordinator, to review CCTV footage of Chute 29 and Chute 31 where Mr Vujica was working between 18:00- 19:30 hrs on Thursday 5 December 2013.
In an email dated 13 December 2013 Mr Mitchell stated that “I have checked both the shutes for this period and I can’t detect any sign of distress or injury from the dockhand. Checked footage from 5:50pm – 7:17pm when he left the trailer.”
In oral evidence Mr Mitchell confirmed that he watched the entire footage from 5.50pm to 7.17pm on 5 December 2013. He confirmed that Mr Vujica did not show any signs of distress such as stopping what he was doing, wincing, flexing of a muscle or rubbing an area on the body. He said that if a person had suffered an injury he would have expected the person to stop working and go to find their supervisor. He added that Mr Vujica didn’t appear to slow down after 6.30pm or exhibit any of unusual arm movements or evidence of reeling in pain.
Mr Mitchell explained that the footage is in colour, gives a good view of the relevant packing chutes, and gave a good view of Mr Vujica when he was in either trailer or in the centre between the trailers. He said that he viewed the footage together with by the OHS manager at Enfield and that it was also viewed by the OHS Advisor who requested the review.
In response to a question from the Tribunal Mr Mitchell stated that over a period of 13 years he been asked to review footage in the context of an injury, or alleged injury about 40 to 50 times and that frequently observed behaviour consistent with people injuring themselves
In response to a question from Mr Vujica Mr Mitchell said that, between 5.50pm and 7.17pm he could not recall Mr Vujica walking away from the field of view of the camera until 7.17pm.
CONSIDERATION
Mr Vujica claims that at approximately 6:30pm on 5 December 2013 he suffered an injury while loading linehaul trailers at the TNT depot in Enfield and relies on his written statement, the injury report, the opinion of his treating doctor, Dr Pukanic, the opinion of Dr Stephenson and the MRI scans.
The Respondent submits that Mr Vujica’s claims should be rejected on a number of grounds particularly on the basis of questionable credibility and questionable reliability of his self-reported evidence.
The Respondent submits that at the hearing Mr Vujica presented as an uncooperative witness in that “He, on numerous occasions, engaged in a hair splitting exercise of trying to draw distinctions between the meaning of the word ‘work’, ‘employment’, ‘doing work’ and those kinds of concepts”.
The Tribunal’s own observations of Mr Vujica’s response to questions are that he was frequently evasive, quibbling and at times argumentative and somewhat passive aggressive.
The Respondent submits that there is evidence before the Tribunal which casts doubt on whether Mr Vujica actually suffered an injury as claimed and if he did whether he suffered any incapacity for work.
There is also a question as to whether the claimed injury occurred while Mr Vujica was working for TNT or when he was working for his own company.
Notwithstanding the concerns about Mr Vujica’s credibility, the documentary evidence itself raises questions about the reliability of his self-reported evidence, in that, in his account of the episode of injury in his written statement there are inconsistencies when compared to the histories recorded by the medical practitioners, his evidence before Tribunal and the reported CCTV evidence.
Also, the fact that there is no documented medical assessment immediately after the claimed episode of injury, because Mr Vujica refused to be seen at Workcover in Bankstown and insisted on seeing a doctor of his choice the next day, I find somewhat problematic, particularly as he subsequently chose a doctor who he had never seen before.
Dr Pukanic’s initial Workcover certificates provide no clinical details or explanation for his assessment of “no work capacity” for a period of 5 weeks.
Dr Pukanic’s report of 31 January 2014 notes a history which is somewhat limited, is not consistent with other evidence and suggests that he had little knowledge of Mr Vujica’s general circumstances, in particular, the fact that his work activities were not restricted to TNT. He describes his findings on physical examination, which I presume was performed on 6 December 2013, and expresses an opinion which suggests a level severity of injury which, in my view, is not supported by other evidence including his own history and examination.
Dr Barlow in his report of 16 December 2013 clearly was not convinced that Mr Vujica had suffered an injury and felt that he was exaggerating his claimed pain and physical restrictions.
The report and oral evidence provided by Dr Stephenson, in my view, provides little support to Mr Vujica’s claim. He saw Mr Vujica about 2 months after the claimed episode of injury and was clearly unaware of the other issues concerning Mr Vujica’s work history. In his report he tended to focus on the pathology as described in the MRI scans but in oral evidence conceded that this was probably not relevant to the claimed injury.
Dr Stephenson was unable provide a convincing explanation for his examination findings of a symmetrical severe reduction in the active range of motion in both of Mr Vujica’s shoulders.
Also the examination findings are not consistent with other evidence which suggests that Mr Vujica was not incapacitated for work when examined by Dr Stephenson. For example a Taurus Freightlines tax invoice indicates a run to Melbourne/Sydney on the 28/29 January 2014 which was probably provided by Mr Vujica.
Also on 10 February 2014 Dr Crickitt notes that Mr Vujica had “no significant problems” in the previous week and was apparently able to help a friend work on a car which resulted in “tender L 7/8 ribs at costochondral joint”.
Although I have some concerns about the medical opinions I accept that the opinions depend significantly on the reliability of the information provided by Mr Vujica and his honest cooperation with physical examination.
On consideration of all the evidence before the Tribunal am not convinced that Mr Vujica’s communication with the medical practitioners was such that they were able to provide a reliable opinion with respect to the claimed episode of injury.
Accordingly I am not satisfied that Mr Vujica actually suffered an injury on the 5 December 2013 while working for TNT.
Alternatively, if I were to assume that Mr Vujica did suffer an injury the next issue to consider is whether as a result of that injury he suffered incapacity for work or impairment as claimed.
The Respondent submits that the documentary evidence before the Tribunal indicates that during the period of claimed work incapacity Mr Vujica was not only capable of working but, in fact, continued to work for his own trucking company.
The Respondent relies on various emails which suggest that Mr Vujica was seen to be working during the during the relevant period, an email from Mr Vujica to Mr Richards, State Operations Manager of Toll IPEC, and the tax Invoices of Taurus Freightlines.
Mr Vujica denies that he did any work between 6 December 2013 and 13 January 2013.
The email dated 10 January 2014 sent to Mr Richards by Mr Vujica, in my view clearly suggests that that he personally had been accepting work from Toll IPEC until mid-December and that he was “perfectly willing and able” to continue to work.
At the hearing Mr Vujica submitted that he had written the email on behalf of his company and that he had “used the first tense” because he was concerned that if he mentioned his company Mr Richards would not have known who had sent the letter and “would have thrown it in the bin”.
I found Mr Vujica’s submission unconvincing and, on balance, I am satisfied that he was describing his personal situation.
The tax invoices from Taurus Freightlines clearly indicate that services were provided by Mr Vujica’s company between 6 December 2013 and 13 January 2014.
Mr Vujica told the Tribunal these services were provided by another driver called “Rex” on a quid pro quo basis without the exchange of any money.
Mr Vujica was unable to submit any evidence about or from “Rex” to assist his submissions to the Tribunal which, in view, raises significant questions about the nature of the relationship between them and leads to an inference that Rex’s sworn evidence may not have been favourable to Mr Vujica’s claim.
While each of the documents, alone, are not determinative in establishing that Mr Vujica was working while claiming to be incapacitated, when taken together, I find that that there is a strong inference that he himself was in fact working for his company during the relevant period.
Accordingly, on balance, I am not satisfied that Mr Vujica suffered an incapacity for work as a result of his claimed injury while working for TNT.
Furthermore, if he did suffer an injury as described by Dr Pukanic or Dr Stephenson I am not satisfied that the injury necessarily occurred while he was working for TNT.
DECISION
For reasons set out above I am satisfied that in the course of his employment with TNT Mr Vujica did not suffer an injury that resulted in incapacity for work or impairment and is not entitled to compensation pursuant to section 14 of the SRC Act.
The decision under review is affirmed.
I certify that the preceding 126 (one hundred and twenty -six) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member .................................[sgd].......................................
Associate
Dated 18 December 2015
Date(s) of hearing 30 October 2015 Applicant In person Counsel for the Respondent Mr P Woulfe Solicitors for the Respondent Moray & Agnew
Key Legal Topics
Areas of Law
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Worker’s Compensation
Legal Concepts
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Contract Formation
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Causation
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Compensatory Damages
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Inconsistent Evidence
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Jurisdiction
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