Warusawithana and Linfox Australia Pty Ltd (Compensation)
[2024] ARTA 277
•24 December 2024
Warusawithana and Linfox Australia Pty Ltd (Compensation) [2024] ARTA 277 (24 December 2024)
ReviewNumber: 2023/2280, 2023/3149
Applicant/s: Thusitha Warusawithana
Respondent: Linfox Australia Pty Ltd
Tribunal Number: 2023/2280 & 2023/3149
Tribunal:R Cameron, General Member.
Place:Melbourne
Date:24 December 2024
Decision:Pursuant to s 105 of the Administrative Reviews Tribunal Act 2024 (Cth), The Tribunal sets aside the decision under review and in substitution decides:
A. In application No: 2023/2280:
i.That the applicant’s right ankle injury suffered on 31 October 2022 arose out of or in the course of his employment with the respondent by reason of which it is liable to pay compensation to him under sections 16 and 19 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (‘the SRC Act’) in respect of such injury; and
ii.That the respondent pay to the applicant compensation pursuant to sections 16 and 19 of the SRC Act as and from 21 December 2022 to the present and continuing.
B. In application No: 2023/3149:
i.The respondent is liable to pay compensation to the applicant under section 16 of the SRC Act for reasonable medical expenses arising from his right ankle injuries suffered on 31 October 2022 which arise out of or in the course of his employment with the respondent from that date to the present and continuing; and
ii.That the respondent pay to the applicant compensation under section 16 of the SRC Act for reasonable medical expenses incurred that have arisen from his right ankle injury sustained on 31 October 2022 which arise out of or in the course of his employment with the respondent, from 21 December 2022 to the present and continuing.
.................................[SGD].......................................
R Cameron, General Member.
Catchwords
COMPENSATION – commonwealth employee – applicant claimed compensation under two different applications – right ankle injury – medical expenses – Tribunal to interpret with flexibility in the formulation of claims – a broad, generous and practical approach is appropriate in construing a document purporting to be a notice of injury – medical diagnoses can change and evolve, or are or become various – browne v dunn rule – dangerous forensic course to adopt that applicant was wilfully and deliberately misleading, deliberately untrue or that he was lying – opportunity for applicant to return to work on modified duties was not provided by the respondent – applicant’s capacity to work in his preinjury role determined to be none – medical evidence of experts with physical examination of the applicant preferred – decision under review set aside and substituted.
Legislation
Administrative Reviews Tribunal Act 2024 (Cth)
Safety Rehabilitation and Compensation Act 1988 (Cth)
Cases
Comcare v Muir (2016) 150 ALD 321
Abrahams v Comcare (2006) 93 ALD 147
Ellison v Comcare (2022) 175 ALD 62 at [141].
Briginshaw v Briginshaw (1938) 60 CLR 336
Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1
Browne v Dunn (1894) 6 R 7
Curwen v Vanbreck (2009) 26 VR 335
Secondary Materials
Administrative Appeals Tribunal, Guidelines for Persons Giving Expert and Opinion Evidence (30 June 2015)
Shorter Oxford English Dictionary (6th ed, 2007)
Statement of Reasons
INTRODUCTION
There are two applications before the Tribunal for determination.
The first application (No: 2023/2280) seeks review of a decision made by the reconsideration officer of the respondent on 9 February 2023 which affirmed a previous determination that found it had no present liability to pay compensation to the applicant under ss 16 and 19 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (‘the SRC Act’) arising from the applicant’s accepted right ankle condition sustained on 31 October 2022 (‘the first reviewable decision’).[1]
[1]The documentary evidence consisted of a Joint Tribunal Book ('JTB’) prepared by the parties to the applications together with the ‘T’ documents in each matter which were received in evidence. The document referred to is JTB, 77.
The second application (No: 2023/3149) also seeks review of a further decision made by a reconsideration officer of the respondent on 7 March 2023 which affirmed a previous determination that compensation for medical expenses were not payable by the respondent under s 16(1) of the SRC Act (‘the second reviewable decision’).[2]
[2] JTB, 88.
THE EVIDENCE BEFORE THE TRIBUNAL
There was both oral and documentary evidence before the Tribunal at the hearing of the application.
The following witnesses gave oral evidence:
(a)The applicant;[3]
(b)Mr Zhang an orthopaedic surgeon;
(c)Mr Keith an orthopaedic surgeon;
(d)Mr Steadman an orthopaedic surgeon; and
(e)Mr Allen an orthopaedic surgeon.
[3] The applicant also made a witness statement dated 11 June 2024 at JTB, 121. The applicant's evidence was given with the assistance of an interpreter. Most of the applicant's evidence was given without the necessity for the interpreter to assist him, as he did overall, have quite a good command of the English language.
Helpfully, as directed by the Tribunal, the parties prepared a Joint Tribunal Book (‘JTB’) which was received in evidence.[4] The JTB contained all the documents relied upon by the parties at the hearing of the applications save for a bundle of 3 payslips from the applicant’s present employer, Cadell Food Services.[5]
[4] The JTB was marked as Exhibit A.
[5] The bundle of payslips tendered on behalf of the applicant were marked as Exhibit 1.
THE ISSUES FOR DETERMINATION BY THE TRIBUNAL
The Tribunal considers that the issues for determination by the Tribunal have been helpfully articulated in paragraph 40 of the Respondent’s Statement of Facts, Issues and Contentions.
With respect to application for review No: 2023/2280 as follows:
(a)Does the Applicant continue to suffer from the effects of his accepted right ankle condition?
(b)If yes, does the Applicant require ongoing reasonable medical treatment in respect of his accepted right ankle condition pursuant to s 16 of the SRC Act beyond 20 December 2022?
(c)If yes, does the Applicant suffer from an incapacity for employment, whether total or partial, as a consequence of his accepted right ankle condition, such as to give rise to an entitlement to the payment of incapacity benefits pursuant to s 19 of the SRC Act beyond 20 December 2022?
With respect to application for review No: 2023/3149 as follows:
(a)Does the Applicant continue to suffer from the effects of his accepted right ankle condition?
(b)If yes, is the Applicant entitled to the reimbursement of various reasonable medical treatment expenses in respect of his accepted right ankle condition pursuant to s 16 of the SRC Act, up to and including 20 December 2022?
A PRELIMINARY POINT RAISED BY THE RESPONDENT
Reference should be made to a preliminary submission made by counsel for the respondent. It was contended that the description of the injury claimed by the applicant for the purposes of section 5A of the SRC Act had changed. In other words, a ‘new description’ of the injury concerned.
The submission was developed by reference to the description of the injury contained in paragraph 2 of the applicant’s Statement of Facts, Issues and Contentions. That description was an ‘accepted right ankle condition sustained on 31 October 2022.’ It was also submitted that such description had continued throughout that document in paragraph 55 which referred to the applicant’s, ‘accepted work-related right ankle injuries…’ Developing this submission, it was contended that nothing else or no other description of an injury sustained by the applicant had ever been accepted. Therefore, it was contended that in effect the way the applicant was now running his case would be a significant surprise in that another injury has been raised or identified as having been suffered by him.
The respondent contended that in the applicant’s Statement of Facts, Issues and Contentions relied upon by him, which was prepared by his lawyers, no other injury had been raised. It was contended that the description of the applicant’s injury that was now the subject of these applications was raised for the first time on the first day of the hearing.
The applicant by way of response to this preliminary submission contended that the approach adopted by the respondent was an overly technical interpretation. It was emphasised that the function of the Tribunal in hearing and determining the applications was to arrive at the correct and preferable decision.
Particular emphasis was placed by counsel for the applicant on paragraphs 45 and 46 of the Statement of Facts, Issues and Contentions lodged and served on his behalf. In those paragraphs of that document, reference was made to the report of Mr Keith, an orthopaedic surgeon, who clinically examined the applicant and made a report of 4 September 2023, which contained a description of the injury which is the subject of the claims, and the applications before the Tribunal. Therefore, it was contended that there was adequate notification of the respondent of the nature of the injury claimed and there was not an element of significant surprise as alleged.
The Tribunal is not persuaded by the respondent’s argument with respect to the preliminary submission. The applicant’s Statement of Facts, Issues and Contentions was prepared on 11 June 2024, long before the hearing of these applications. Not only in paragraphs 45 and 46 of that document were details of the applicant’s injury articulated, based upon the report of Mr Keith, a copy of which presumably had been furnished to the respondent, but later paragraphs also referred to the nature of the injury and also the report and diagnosis of Mr Zhang. A copy of Mr Zhang’s report was also presumably furnished on the respondent in a timely fashion. In the light of these developments, it can hardly be said to have taken the respondent by surprise to conduct the applications in the way the applicant did.
The extent to which the description of an injury may later confine the jurisdiction cast upon the Tribunal has been the subject of several very persuasive decisions of the Federal Court of Australia. As Flick J observed in Comcare v Muir, some flexibility in the formulation of claims has been permitted.[6] In this context not infrequently claims for compensation have been drafted by claimants without the benefit of legal assistance. Additionally, in many cases a medical condition may change and evolve over time. This not infrequently occurs when medical specialists are later retained, often in circumstances after an initial claim has been determined adversely to the applicant.
[6] (2016) 150 ALD 321, [13].
It was perfectly understandable that following the retainer of Mr Keith and Mr Zhang and their subsequent clinical examinations of the applicant that the precise formulation or description of his right and injury may have evolved in a way that differed from the description in the original Workers’ Compensation Claim form lodged by him on 15 December 2022.
Several authorities over many years have considered the approach to adopt when construing and applying the provisions concerning notice of injury under the SRC Act. They include that:
(a)a broad, generous and practical approach is appropriate in construing a document purporting to be a notice of injury;[7]
(b)the notice of injury requirements by the legislation are to be construed beneficially for claimants.[8]
[7] Abrahams v Comcare (2006) 93 ALD 147 ('Abrahams’), [18] approved by Murphy J in Ellison v Comcare (2022) 175 ALD 62, [141].
[8] Abrahams v Comcare (2006) 93 ALD 147, [18]; Ellison v Comcare (2022) 175 ALD 62, [141].
Another feature of the authorities that have considered the question of notice of an injury and decision making under the relevant provisions of the SRC Act is that they have held that the statutory scheme allows for progressive and evolving decision-making giving effect to the provisions of ongoing review of relief or entitlements in the nature of course of workers’ compensation, being review which allows for adjustment or change in the light of subsequent events and circumstances which may subsequently happen. As Madgwick J observed in Abrahams, nothing is more common than that medical diagnoses change and evolve or are or become various. It would be, in his view, taking an over literal view of a claim form document which should be beneficially, broadly and practically interpreted to hold the claimant irretrievably to the description of the injury contained in it.[9]
[9] Abrahams, [21].
In the light of the reconsideration applications being made in terms unfavourable to him, which relied upon the specialist opinion of Mr Steadman an orthopaedic surgeon, it was perfectly understandable that the applicant would have retained medical specialists Mr Keith and Mr Zhang as he subsequently did. Once they had completed their clinical examinations of him and prepared their reports, copies of which were furnished to the respondent, it was notified of their diagnoses. This was an example of an adjustment or change in the light of events or circumstances which subsequently occurred after the reviewable decisions were made by the respondent’s Claims Manager for reconsideration.
In these circumstances, the Tribunal considers that the respondent was well and truly on notice about the description of the injury which was the subject matter of the applications to be ventilated at the hearing before the Tribunal. It does not accept that it was raised for the first time at the opening of the hearing on the first day. Having been furnished with the details referred to in the applicant’s Statement of Facts, Issues and Contentions in June of this year together with copies of the reports of both Mr Keith and Mr Zhang, which were referred to in that document the Tribunal concludes that it was not taken by surprise as it contends. For these reasons, therefore, the applicant should be permitted to conduct his case as he did during the hearing of the applications.
SOME INITIAL OBSERVATIONS CONCERNING THE APPLICANT’S EVIDENCE
It is appropriate to make some initial observations concerning the applicant’s evidence. He was in the witness box for a significant time span. He was searchingly cross-examined.
In submissions the respondent advanced extremely strong contentions to the effect that some aspects of the applicant’s evidence were implausible, at times wilfully and deliberately misleading or deliberately untrue. Further, when specifically asked by the Tribunal it was submitted that he was, amongst other things, ‘definitely lying’. More will be said about this later in these reasons.
Particular emphasis was placed upon an entry recorded in a clinical note apparently made by Dr Slesenger, an occupational physician who examined the applicant on several occasions. The note concerned was made on 10 January 2023.[10] Amongst other things, the clinical note contains an entry ‘Review- out of moon boot’. It was submitted that the contents of this note establish that the applicant had deliberately misled the Tribunal. The thrust of this submission was that the entry in the clinical note was inconsistent with other evidence given by the applicant to the effect that he continued wearing a moon boot and using crutches until sometime in March 2023.
[10] JTB, 214.
Several observations should be made concerning this submission.
To contend that someone has lied or deliberately mislead the Tribunal, such as a witness giving evidence on oath, is an extremely serious allegation to make. This is not the occasion to embark upon a detailed excursion into an analysis of the civil standard of proof. However, a forum such as this Tribunal in this case, when addressing a submission along the lines made by the respondent must have regard to the seriousness, gravity and magnitude of the allegations concerned. Therefore, the more serious the issue or allegation, the stricter proof required.[11] Reference, nonetheless should be made to an often-cited passage of the decision of Dixon J (as he then was) in Briginshaw v Briginshaw:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question of whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters (a matter of real seriousness) ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates and admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgement if the question was whether some act had been done involving grave moral delinquency.[12]
[11] (1938) 60 CLR 336 (‘Briginshaw v Briginshaw’) 361.
[12] Ibid, 362. The matters in parentheses are those of this current Tribunal.
Bearing these observations of Dixon J in mind as made by him in Briginshaw, it is appropriate to turn to some other aspects of the applicant’s evidence given and the conduct of the hearing of the application that are relevant to these submissions.
The maker of the clinical note of 10 January 2023, Dr Slesenger was not called to give evidence. He could not be tested about the circumstances that the entry was made in the clinical note or for instance, his recollection of the consultation with the applicant on that day. If he was to be called his version of the consultation with the applicant on that day could have been put to the applicant in cross examination.
Further, and most critically, when the applicant was in the witness box and being cross examined, the clinical note and its contents were not produced to him for his consideration, nor the entries recorded in them specifically put to him.
By reason of the entry in the relevant clinical note, and the note itself, not being put to the applicant during cross examination the applicant was deprived of the opportunity to offer an explanation concerning its contents, and any inconsistency with other evidence given by him or that is otherwise before the Tribunal.
Also, because Dr Slesenger was not called to give evidence the Tribunal has been deprived of the opportunity to consider or compare whatever evidence he may have given with that of the applicant.
As both the clinical note and its contents were not put to the applicant and Dr Slesenger was not called, the Tribunal is significantly deprived of relevant evidence that would enable it to reach a conclusion to the requisite standard about the very serious allegations being put.
It is acknowledged that in the respondent’s Statement of Facts, Issues and Contentions at paragraph 29(b) reference was made to a clinical note of Dr Slesenger made 27 March 2023, which reported that the applicant was fit to return to preinjury employment. This was relied upon by the respondent to contend that the clinical notes made by Dr Slesenger and their contents, which were included in the JTB, sufficiently alerted or gave the applicant and his legal advisers requisite ‘notice’ that a submission in such terms, would or could be made against him.
It has long been a rule professional practice that, unless ‘notice’ has already clearly been given of the cross-examiner’s intention to rely upon such matters, it is necessary to put to an opponent’s witness in cross examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn. That rule of practice follows what have been held to be rules of conduct which are essential to fair play at a trial in which are generally regarded as the established rule in Browne v Dunn.[13]
[13] Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1, 16 (Hunt J);
Another observation should also be made about the practical application of this rule. Whatever the effect of the ‘notice’, the burden of persuasion as to the act in dispute does not shift. It remains upon the party who seeks to establish the allegation. The cross examiner who because of ‘notice’ refrains from ‘putting’ the allegations to the witness embarks upon a potentially dangerous forensic course. The Tribunal may not be persuaded of the fact in issue if there is no cross examination on such issue. Such a risk increases where a party who makes the allegation can adduce no direct evidence as to it and the other party, having adduced no evidence in chief as to the issue, is not cross-examined.[14]
[14] Curwen v Vanbreck (2009) 26 VR 335, [27] (Redlich and Bongiorno JJA and Hansen AJA).
The Tribunal does not consider that the reference in paragraph 29(b) of the respondent’s Statement of Facts, Issues and Contentions to the clinical note of 27 March 2023 of Dr Slesenger ‘clearly’ gave ‘notice’ to the applicant that the contents of the clinical note made by him on 10 January 2023 would be relied upon by it to contend that he had given evidence that was wilfully and deliberately misleading, deliberately untrue or that he was lying. It very much left the applicant up in the air as to what use if any, would be made by the respondent of that clinical note.
It was a ‘dangerous forensic course’ to adopt as observed by the Court of Appeal of the Supreme Court of Victoria in Curwen v Vanbreck in not specifically producing the clinical note to the applicant during cross-examination and putting its contents to him and inviting his explanation, whatever that may have been.[15]
[15] Ibid.
The Tribunal considers that it was also a ‘dangerous forensic course’ for the respondent to adopt, if it was intent on making a submission that the applicant had given evidence that was wilfully and deliberately misleading, deliberately untrue or lying, not to call Dr Slesenger for the purposes previously referred to.[16]
[16] Ibid.
It should be observed that there are many reasons why witnesses give evidence that may be inconsistent with other provable facts or events but not do so in a way that is wilfully and deliberately misleading, deliberately untrue or indeed a lie. For instance, a witness might be genuinely mistaken as to a particular fact, circumstance or occurrence. A witness may, for a variety of reasons, have a faulty recollection. It is also possible where the witness genuinely reconstructs what they believe occurred. By way of example, it is a very common occurrence in Magistrates’ Courts, in all jurisdictions, for two motorists driving cars that are involved in a collision at an intersection regulated by traffic lights to both say that they had the green light. Quite obviously, it is more probable than not that one was facing a red light. However, that motorist may well quite genuinely reconstruct what occurred because in their own mind they have had a lengthy time span of accident-free driving and believe that they would always stop for a red light. They genuinely believe that they could not have caused the accident concerned. In these instances, it would be quite wrong to accuse such witnesses of giving deliberately misleading evidence, or indeed, even lying. Such evidence given in that way is a reconstruction. A common approach adopted by witnesses from time to time.
It should also be noted that the Tribunal had the opportunity to observe the applicant in the witness box both during his evidence in chief and cross examination. His cross examination was fragmented over 2 days. He was assisted by interpreter from time to time during his evidence, but overall, the Tribunal concluded that he did his best in the alien environment of the witness box. His evidence was not given in a manner that was indicative of reconstruction, exaggeration, embellishment or recent invention. He did not seem to be a witness who was so Machiavellian as to give evidence in the way contended for by the respondent. Whilst it may be true that there was some aspects of his evidence that gave rise to some inconsistency it was not such as to enable the Tribunal to reach a conclusion that there should be a rejection of the evidence concerning both when he ceased using a moon boot and crutches, or further, the actual circumstances of the incident concerned which led to the injury and symptoms he now complains of. He left the witness box with his credibility intact.
Also, given that the Tribunal has concluded that clear notice of the matters to be relied upon in making a submission that the applicant’s evidence on several matters was wilfully and/or liberally misleading, deliberately untrue or he was lying, had not been given and, further, that Dr Slesenger was not called it is not prepared to find that the applicant gave his evidence in that manner. Therefore, it also concludes that the appropriate evidentiary foundation or platform to enable such submissions concerning the applicant’s evidence to be made has not been established.
For these reasons overall, unless where otherwise stated, the Tribunal accepts the evidence of the applicant.
THE INCIDENT ON 31 OCTOBER 2022 AND THE APPLICANT’S INJURY
At all times relevant to these applications and certainly on 31 October 2022, the applicant was employed by the respondent carrying out duties that would largely be described as those of a ‘storeman’. He described working in the ‘Transport and Logistics’ area. His tasks or duties involved what is described as ‘picking’ orders of goods in the warehouse for consignment to various third parties. There was a device that he used which was described as a voice speaking electronic headset. He received orders that came to the distribution centre as directed.
Relevantly, for the purposes of this application the applicant was using a machine described as a ‘lolop’. It is apparently an electrically powered low-level lifting and moving machine that assists its operator to complete or ‘pick’ orders. Various goods when ‘picked’ are loaded on it. The machine is able to move or transport up to two pallets of goods at a time.
The applicant also used a forklift whilst undertaking picking duties. He described carrying out his warehouse duties as being split into picking duties for two days of the week and another three days a week using the forklift.
The applicant described the way his duties were performed. It was stated by him that his work did involve repetitive bending, kneeling and generally lifting weights of approximately 20 kilograms. From time to time, he would lift goods weighing more than that amount.[17]
[17] JTB, 122.
Apparently, there were performance targets and for the applicant. He was required to ‘pick’ a minimum of 165 items per hour.[18] He stated that the work was fast paced. If the performance target was not achieved there were several consequences. Firstly, there would usually be a verbal warning for failing to achieve such target. Secondly, if the target was not achieved the employee would be unlikely to be offered over time. It appears that in the respondent’s workplace over time was highly sought after and only the fastest workers were offered over time. The applicant stated that he usually picked more items per hour than the target generally achieving between 170 and 180 items per hour.
[18] Ibid 122.
The event which the applicant says caused his claimed injury occurred on 31 October 2022. It occurred during the course of his employment duties. He was working in aisle 63 when he was alighting from the lolop as he put his foot on the warehouse floor, he slipped on a piece of paper that had been deposited or was lying on the warehouse floor. The warehouse floor was described as polished concrete and very shiny. The applicant in his evidence suggested that one of the reasons that the floor of the warehouse was polished or shiny is because of the frequent forklift traffic that uses such floor.
There was in evidence CCTV footage of the incident concerned. The footage was taken by an overhead camera and was quite some distance from the applicant and the machine he was operating. The footage is not particularly clear and could not be described as taking ‘close-ups’. However, it is quite evident that the applicant slipped as he alighted from the lolop. The Tribunal did not understand either party to contend otherwise. What really was in dispute to some significant extent was the mechanism of the slip and the precise injuries sustained by the applicant by reason of such mechanism. To a considerable extent the precise details of the incident the injury the applicant sustained can only be completely explained by the evidence of the applicant.
The slip itself as revealed in the CCTV footage shows the applicant sliding in a forward motion. It is apparent that momentarily during the slip he did not have control of his right leg and in particular his foot. He says that his ankle twisted whilst he slipped. When one views the CCTV footage it is not possible to determine what kind of boots the applicant is wearing or what kind of support they provided to him at the time. This assumes some importance because Mr Steadman, one of the Orthopaedic Surgeons called by the respondent to give evidence, expressed the opinion that the mechanism of the injury did not encompass ‘inversion’ which is a twisting of the foot. He specifically said that on viewing the CCTV footage it did not look like the applicant’s foot had twisted.
Mr Steadman conceded in cross-examination that he presumed that the boots worn by the applicant at the time of the incident were above ankle height and were well supported. However, he did acknowledge that the amount of support that would be provided by the boots would depend on how tightly laced up they were. To accept this opinion of Mr Steadman, it would be necessary for the Tribunal to reject the evidence of the applicant. The Tribunal accepts the evidence of the applicant that during the slip, as recorded on the CCTV footage, his ankle also twisted. It does not accept, nor is prepared to find, that the applicant has either invented this account of the incident or is so profoundly mistaken as to what happened on that day. Additionally, about which more will be said later in these reasons, the applicant also gave evidence, which is accepted by the Tribunal, that when he later alighted from the lolop at the parking bay, he twisted his ankle again.
The applicant stated that he did not see the paper when he was getting off the lolop. When he stepped on the piece of paper his right leg slipped and when doing so, he hurt his right foot and twisted his right ankle. Initially, the applicant stated he only felt minor pain and continued carrying out his work duties afterwards. Unfortunately, the applicant stated that after a few minutes the pain experienced from his ankle dramatically increased. Such pain proceeded to increase to a level that at one stage he described as ‘unbearable’. He also felt dizzy and felt it necessary to sit on the floor of the lolop in an attempt to recover from the dizziness he was experiencing.
Immediately following the incident, in addition to the onset of pain the applicant developed a limp. To address both the pain and the limp, the applicant stated that he stretched and shook his leg in an effort to relieve such pain. He then drove the lolop to the next location which he found difficult to do due to the pain in his leg. Because of the difficulty he had driving the lolop immediately after the incident it did not travel in a stable manner. This caused it to jerk, and as is apparent from viewing the CCTV footage, several boxes on the device then fell off. He was able to complete approximately one or two more ‘picks’ and then reported the incident to a fellow worker present in the next aisle who then reported the incident to a team manager.
Sometime afterwards the team manager one Hender arrived. The applicant was told by the team manager to firstly drive the lolop to a parking bay which was approximately 400 to 500 meters away. Upon arrival at the parking bay the applicant alighted from the lolop again. When doing so he stated that he was feeling quite dizzy and was ‘off-balance’. He twisted his ankle again as he was getting off the lolop.
In cross examination, the applicant was criticised for not referring to twisting his ankle on the second occasion, when alighting from the lolop at the parking bay, when completing the Workers’ Compensation Claim form dated 15 December 2022.[19] It was also pointed out to him that he revealed twisting his ankle on a second occasion in his letter of 17 January 2023 addressed to the respondent’s Claims Manager seeking a reconsideration of a determination. In response the applicant stated that he did inform the team manager and the doctor on the same day that the incidents occurred. Also, this should be viewed with a degree of reality. The applicant who was employed as a storeman in a warehouse at the time and when completing the Workers’ Compensation Claim Form could hardly have imagined that he would subsequently wind up in the witness box being the subject of searching cross examination on the topic. His dominant concern was the fact that he had been injured and was making a claim for such injury. The Tribunal accepts this evidence from the applicant.
[19]Ibid 28.
Another matter that is relevant to this question is that the space in the Workers’ Compensation Claim form which requires the claimant to state what happened when he was injured is particularly small. It seems perfectly understandable that a claimant in this setting given such limited space is likely to provide a relatively spartan explanation. His dominant concern was clearly when he first twisted his ankle upon alighting from the lolop in aisle 63 is as previously described. One can appreciate also how this may have occurred given that the applicant had already informed his team manager and the doctor he saw later that day exactly what happened.
The applicant was then directed by the team manager to make his way to the First Aid Room on the premises. On or about the time of his arrival at the First Aid Room he was also met by the safety manager employed by the respondent one Lamaris. The applicant was wearing New Balance safety boots that he had purchased. Such boots were not provided to him by the respondent. Such boots were described as providing cover above the ankle. After arriving at the First Aid Room, Hender assisted the applicant to remove his right safety boot, but not his sock. Apparently, he did not remove the sock because the safety manager Lamaris informed him that the swelling might get worse in the event that he did so. Hender also treated the ankle with an ice compact. The applicant observed that his right ankle had swollen by this time.
The applicant also explained that by then he was experiencing much pain from his right ankle and requested to see a doctor. Some discussion ensued with the applicant, Hender and the safety manager, Lamaris. Hender and Lamaris stated to the applicant that his injury was a minor twist, and he did not need to see a doctor. They also informed him that he could go home and did not need to work the following day because it was a public holiday for the Melbourne Cup.
Eventually the applicant’s wife was called, and she drove to his workplace and collected him after he telephoned her. To enable the applicant to get from the First Aid Room to the car park where his wife was waiting for him, Hender and Lamaris put him in a wheelchair and wheeled him to the car driven by his wife.[20] The Tribunal is satisfied that the use of a wheelchair was necessary due to the pain and discomfort that the applicant was experiencing at that time.
[20] Ibid 124.
The applicant and his wife shortly afterwards endeavoured to consult a general practitioner who they normally see but he was unavailable. They then went into a ‘walk-in’ medical Centre in Craigieburn. That general practitioner, Dr Sekhobe, advised the applicant to have an x-ray and bandaged the ankle concerned. He also advised the applicant to use crutches and to avoid any weight-bearing on his right foot. Additionally, the applicant was advised to take Nurofen for pain and not work for two weeks. At that time, he stated that if he put weight on his ankle the pain was intense, and he sometimes lost balance when trying to move around if he did.
Subsequent events can be fairly briefly canvassed. The day following the incident was as noted above Melbourne Cup Day. The applicant was able to see his regular general practitioner, Dr Boghawatta. He recommended using crutches, keeping his right foot elevated, wearing a compression bandage, applying ice to the right ankle area twice a day to reduce swelling and referred him for an x-ray. He had an x-ray the same day. Dr Boghawatta also signed a Medical Certificate expressing the opinion that the applicant was unfit to work between 1 November 2022 to 4 November 2022 inclusive.[21]
[21]Ibid 8.
The applicant produced two medical certificates to the respondent’s Safety Manager, Lamaris. It appears that the respondent then referred the applicant to a doctor known to it at Essendon Fields Medical Centre, Dr D’Cuhna who the applicant saw on 3 November 2022. Apart from seeing the applicant and examining the x-ray, Dr D’Cuhna also referred the applicant for an ultrasound which the applicant underwent on or about 6 November 2022. Dr D’Cuhna issued a Medical Certificate on the same day. He made a clinical diagnosis of a right foot injury being likely soft tissue. In the capacity assessment, he considered that the applicant’s work capacity should involve non-weight-bearing, avoid walking long distances without a break, keeping his leg elevated where possible and not drive.[22]
[22] Ibid 9.
Also, on 5 November 2022 the respondent arranged for the applicant to be provided with a pair of crutches and what is described as a ‘short CAM boot’. Throughout the evidence this boot was described as a ‘moon boot’.
The applicant consulted Mr Sharma, a physiotherapist who apparently was retained by the respondent, on 8 November 2022. That physiotherapist informed the applicant that the ligament and tendon in his right ankle and been damaged. He did not recommend that physiotherapy commence until the injuries had healed slightly. Apparently, the physiotherapist informed the applicant he was fit to return to work and perform light duties. There was an email in evidence from Mr Sharma of 8 November 2022 that was sent to several people including the Safety Manager of the respondent, Lamaris.[23] Amongst other things, in that email, Mr Sharma recorded that the applicant’s ankle was slowly improving with pain reduced. However, the pain was present when contact was made, or weight applied. This observation by Mr Sharma in that email corresponds with the response of the applicant in cross examination to a question about that email. He stated that at that time his leg could not take any weight. The swelling was observed to be much better than the previous week. The email also noted that the applicant advised him that he was using a moon boot daily and had been using crutches when required to ambulate. This observation was also confirmed by the applicant in response to a question concerning the contents of that email put to him in cross examination. It was also recorded in the email that an examination conducted by him revealed palpitation and tenderness in the right Anterior Talo-Fibular Ligament (‘ATFL’) when subjected to light touch.
[23]Ibid 11.
On 10 November 2022, the applicant again attended at the medical clinic at Essendon Fields. On that occasion he saw Dr Crompton. Dr Crompton advised the applicant to rest for a further two weeks and also wear a CAM boot. He provided the applicant with a Certificate of Capacity.[24] That certificate stated that the applicant had a capacity for ‘suitable employment’ from 10 November 2022 to 24 November 2022. Amongst other things, Dr Crompton stated that the applicant must be able to use crutches or wear a boot as required. The certificate also stated that alternative arrangements may be required in order for the applicant to attend work. Home based tasks were said to be ideal. He also recorded in that certificate that the ultrasound suggested a complete rupture of the applicant’s anterior talofibular ligament and that he was symptomatic. It also stated that the applicant’s capacity was limited and for desk-based duties only pending progress. Additionally, he considered that home-based duties were ideal. He concluded that the applicant could be considered for driving as soon as he was stronger.
[24] Ibid 13.
Mr Sharma, the physiotherapist sent an email to, amongst others, Mr Lamaris the respondent’s safety officer on 22 November 2022 providing an update on the applicant’s condition. Such update appears to have followed an examination he conducted of the applicant. He recorded that the applicant advised he had not been able to progress his walking, which was limited, due to pain. It also recorded the applicant informing Mr Sharma that he felt more comfortable with the moon boot and crutches at that stage. Mr Sharma also recorded his observations following an examination.
The observations made by Mr Sharma following his examination of the applicant noted swelling, medial arch pooling and small amount of lateral malleolus. He also noted palpitation, tenderness of the right ATFL and ‘calcaneocuboid region/lateral border.’[25] Further observations were made with respect to the applicant’s gait including ‘NWB right lower limb with moon boot + 2 x arm crutches - as previous[26]’. It was also noted that with 2 crutches, ‘WBAT, slow up to 10 mis as previous.’[27] There was certainly no suggestion, at that stage, by Mr Sharma that the applicant should cease wearing the moon boot and/or stop using the crutches, or otherwise modify their use.
[25] Ibid 17.
[26] Ibid.
[27] Ibid.
There was later some confusion about the applicant consulting a doctor at the request of the respondent at Essendon Fields Medical Centre, which does not have any real bearing on this matter. However, given the confusion the applicant decided to see his own General Practitioner, Dr Bogahawatta on 24 November 2022. Dr Bogahawatta advised the applicant that his injury had not healed, which was self-evident to him. An MRI was also recommended. He furnished the applicant with a Medical Certificate for the period 24 November 2022 to 2 December 2022.
The respondent referred the applicant to another doctor Dr Slesenger (who is described as a ‘Specialist Occupational Physician’) at the Coolaroo Medical Centre whom he saw on 25 November 2022 as requested. Dr Slesenger examined the applicant and diagnosed him as a ‘R ankle ATFL tear’. He signed a Certificate of Capacity on that day for the applicant as having a limited work capacity as described in the certificate for, amongst other things, ‘sedentary task only work from home 4 Hrs 5 days a week’.[28] Dr Slesenger advised the applicant to continue using the CAM boot and crutches. Additionally, he also recommended the applicant have an MRI.
[28] Ibid 19.
The applicant underwent an MRI on 30 November 2022.[29] The MRI revealed, ‘[i]ncomplete tear or grade 2 sprain anterior talofibular ligament. Longitudinal split tear of the peroneus brevis tendon. Syndesmosis is intact. No OCD.’
[29] Ibid 21.
The applicant also saw Dr Slesenger again on 30 November 2022. Dr Slesenger certified that the applicant had a capacity for suitable employment from 1 December 2022 to 14 December 2022 if engaged in sedentary tasks only, working from home 4 hours for 5 days a week.[30]
[30] Ibid 22.
There was also in evidence a copy of an email of 6 December 2022 from the physiotherapist Mr Sharma to several people, including the respondent’s safety manager Lamaris.[31] Mr Sharma reported the results of the MRI scan. He noted that the applicant reported that the ligament area was feeling better. However, he recorded some discomfort on light touch at the back of the ankle which he described as ‘cuts like a knife’ (in line with tendon pathway.) It also noted the applicant was still using two crutches to ambulate. Mr Sharma recorded the results of an examination he conducted of the applicant. These results in particular, concerned the applicant’s ability to ambulate. It was recorded that with two crutches, weight bearing as tolerated (‘WBAT’ with moon boot, he was slow up to 10 m. With one crutch, WBAT with moon boot, slow up to 4 m. With no crutch, WBAT, no boot, three steps with therapist assistance. Once again, there was no suggestion from Mr Sharma in that email that the applicant should cease wearing a moon boot and/or using crutches, or otherwise reduce his reliance upon them.
[31] Ibid 24.
In order to attend a physiotherapy treatment session with Mr Sharma on 8 December 2022 the applicant attended his workplace. For reasons that were not explained at the hearing of the application, the applicant was not able to obtain access to the premises. He stated he was denied entry because his access card did not work. He took the matter up with the respondent’s safety manager Lamaris. Following this he was referred by the respondent for physiotherapy with an outside physiotherapy clinic in Epping. He had several sessions with a physiotherapist at that clinic. The applicant in the evidence stated that she gave him several exercises to regularly undertake on his ankle in addition to the treatment she administered.
On the question of the applicant’s attempts to return to work several matters should be referred to. The applicant said that there was no formal request for him to return to work. Certainly, there was no evidence before the Tribunal of any formal request being made for him to return to work by the respondent. He also stated that in December the respondent prevented him from returning to the warehouse by denying him access. As he said in evidence without accessing couldn’t go to work. Further, he stated that he made a formal request to meet the respondent’s distribution manager, but that request was denied. He stated that in the circumstances there was nothing more that he could do. He also stated that there was no groundwork undertaken by the respondent which would have rendered him unable to return to work. This evidence was not challenged, or otherwise contradicted. Indeed, in a case summary that was in evidence before the Tribunal and was forwarded to Mr Steadman with the letter of instruction on 15 December 2022, it is stated that the respondent was currently not providing suitable restricted duties although they had been certified by Dr Slesenger.[32] Given this acknowledgement or admission by the respondent, the Tribunal infers that it did not offer the applicant suitable restricted duties at any time as had been recommended by Dr Slesenger. It was when confronted with this situation that he and his wife resolved to commence a business as a cleaning subcontractor to a company known as ‘Silvan’. This decision to commence a cleaning business, at that time and in the circumstances that it was, must be seen in the light of the fact that at the time the applicant suffered his injury and to the time when his weekly payments from the respondent ceased, he had been the sole income earner of his family. In this setting, he and his wife had no household income when those weekly payments stopped.
[32]Ibid 37.
It was suggested in submissions on behalf of the respondent that the applicant disengaged from his employment with it after 8 December 2022 when he became aggrieved that his building pass denied him access to his workplace when he attended to see the physiotherapist, Mr Sharma. Thereafter, the submission was that he became significantly aggrieved. Further, the sense of grievance was amplified and exacerbated by the determination made by the respondent to deny liability on 21 December 2022. The Tribunal does not accept this submission. The applicant had reasonably exhausted all avenues for returning to work on modified duties and given the financial strain that he and his wife were facing took practical steps to do something about it. There was no evidence to suggest that the applicant was in some way motivated by a grievance against the respondent. The Tribunal is not prepared to find otherwise.
The applicant gave evidence that after his weekly payments from the respondent ceased on 20 December 2022, he and his wife started to face financial hardship. These financial difficulties were to an extent exacerbated by reason of the fact that his wife who has qualified as a medical practitioner in Sri Lanka had not by that time been able to qualify in Australia. In order for her to do so she was required to sit a two-part examination as prescribed by the appropriate Australian regulatory authority. These examinations attracted a significant fee which the applicant in his evidence estimated was approximately $13,000. This added to the financial strain that they faced. The applicant’s evidence was that his wife undertook the first part of the examination in November 2022. Unfortunately, she had to repeat the second part of the examination which added to their continuing financial strain.
In order to conduct the cleaning business, the applicant incorporated a company known as Leo Kanga Pty Ltd (‘Leo Kanga’). The applicant is the sole director and he and his wife are the joint owners of the two issued shares in the company. The work undertaken by the business involved initially domestic cleaning of private properties usually in an aged care setting, in homes occupied by senior citizens. Relatively soon after incorporating Leo Kanga and commencing the cleaning business, they also secured an opportunity to clean the office premises of Boral in Port Melbourne. Initially, the applicant attended to the administrative tasks required to run the cleaning business as due to his ankle injury he was unable to stand for very long and undertake cleaning work. When a cleaning job had been completed it was the applicant’s duty to generate an invoice to Silvan. He kept records for Silvan and of how many hours his wife worked. Apparently, his wife would then generate an invoice or claim to him which he would then pay. Usually, he explained that upon her being paid she would reimburse him funds from time to time to enable the household expenses to be met.
Initially, when Leo Kanga, which had no other employees than the applicant and his wife, was undertaking cleaning work those duties were performed solely by his wife. The applicant discharged administrative duties, such as preparation of invoices and payment of any expenses incurred. The applicant in his evidence estimated that his wife was working between approximately 40 and 50 hours per week. He accompanied his wife in the car to the office of Boral in Port Melbourne, which cleaning had to be performed during the night and usually took between 3 or 4 hours depending on the work required. He did wait in the car because he was understandably concerned about his wife’s safety. As noted, during this time he was unable to stand for any particularly lengthy period. His evidence was that he first started actual cleaning duties for Leo Kanga in approximately early April of 2023.
In both cross-examination and submissions significant attention was paid to the banking records of the applicant and Leo Kanga that were in evidence. It is not necessary for the purposes of these reasons to engage in a particularly detailed consideration of this evidence or those submissions. For instance, there was reference to a sum of $2,000 paid by the company to the applicant on 11 March 2023. It was suggested that the applicant had not performed a sufficient percentage of the work of the company’s business to justify such a transfer. On another occasion, namely 20 April 2023, the applicant’s wife made two separate transfers of $2,000 each and then made corresponding transfers to the applicant. It was suggested that the only reason for this was to mask what either he or his wife, directly or indirectly received from Leo Kanga.
It seems to the Tribunal that, once again this all needs to be looked at with some degree of domestic reality. If there was an intention with any of these transactions, which were the subject of cross examination, to be an exercise in masking or disguising the true nature of them, it can only be described as rank amateur or bordering on the ‘ham-fisted’. Even with the most limited scrutiny of the relevant bank statements such transactions would have seen the light of day.
It is not infrequent for people who conduct their business through the corporate alter ego of a 2-dollar company to make transfers between that company and themselves for all sorts of reasons. The amounts that the parties themselves decide to pay each other may not in any shape or form accurately reflect the percentage of work carried out by each of them, if that can otherwise be accurately determined, which is not altogether clear. It poses the question how does one determine what value or percentage of income can be ascribed to an employee who exclusively or substantially is engaged in administrative duties? It was clearly open to the applicant as the company’s sole director in conjunction with his wife who was a joint shareholder to pay wages as they saw fit.
Amongst other things, the applicant stated that the transactions concerned reflected the cultural approach adopted in households with people of Sri Lankan origin and also that he ultimately was responsible for paying all the household expenditure. This seems perfectly understandable and not in any way is sinister. It was clearly apparent both to the applicant and anyone else who placed the affairs of the applicant, his wife or Leo Kanga under any level of scrutiny that such transactions would easily see the light of day. The Tribunal does not accept the respondent’s submissions concerning these matters.
In his evidence, the applicant stated that he had experienced no issues or problems with either of his legs or ankles prior to the incident on 31 October 2022. For 12 years he had served as a captain in the Sri Lankan army. In cross examination, he was probed as to whether he had experienced any physical injuries, and specifically whether to his ankles or legs during his 12 years of service with the army. He steadfastly maintained he had not. Additionally, he stated that whilst in the Sri Lankan army every year he was subjected to a thorough medical test as commissioned officers were required to be 100% medically fit. This included the requirement to jog 2.4 km in under 10 minutes. He passed all of those medical tests.
Additionally, the applicant gave evidence that he had for many years played cricket and did not experience any problems with his ankles. He continues to play a very limited social or community cricket in Echuca. This type of cricket does not place his ankle under any particular stress or strain. He had for some time when younger played tennis and similarly not experienced any problems with either of his ankles.
A claim for workers’ compensation was lodged by the applicant with the respondent on 15 December 2022.[33] In the workers’ compensation claim form the applicant described his injury as, ‘work-related injury – damaged to right ankle’ and the parts of his body affected were described as, ‘[r]ight ankle - tendon and a ligament damaged’.
[33] Ibid 28.
The applicant underwent further physiotherapy sessions on 19 December 2022 and on 21 December 2022.
On 21 December 2022, a Claims Manager of the respondent advised the applicant that it had made a determination to accept liability to him in respect of a right ankle condition, being ‘small sprain of the ATFL of the right ankle’, under section 14 of the SRC Act (‘the 21 December 2022 determination’).[34] The 21 December 2022 determination found that the respondent was liable to pay compensation for reasonable medical treatment expenses associated with the applicant’s accepted right ankle condition from 31 October 2022 up to and including 20 December 2022 pursuant to section 16 of the SRC Act. Further, the 21 December 2022 determination found that there was no present liability to pay the applicant compensation for medical treatment or incapacity benefits pursuant to sections 16 and 19 of the SRC Act in respect of his accepted right ankle condition as of 21 December 2022.
[34] Ibid 54.
On 22 December 2022, a Claims Manager of the respondent made a determination of the applicant’s entitlement to payments of incapacity benefits under section 19 of the SRC Act (‘the 22 December 2022 determination’).[35] The determination of 22 December 2022 recorded that the Claims Manager was satisfied that the applicant had a partial incapacity for employment, during the period 1 November 2022 to 19 December 2022 inclusive as a result of his accepted right ankle condition.
[35] Ibid 61.
The applicant subsequently sought, as he was entitled to do under Part VI of the SRC Act, a reconsideration of each of the 21 December 2022 determination and the 22 December 2022 determination. A reconsideration was undertaken, as noted above by a Claims Manager of the respondent who affirmed each of those determinations. It is from such determinations that the applicant now seeks review.
The applicant described enduring a very slow recovery from the injury. There was some variation in the evidence as to when the applicant stopped wearing a moon boot and crutches. It seems more probable than not that he ceased using the moon boot sometime in January 2023. As for the crutches it appears that he stopped using them sometime in February 2023. Mr Keith in his report recorded that it was not until February 2023 that the applicant was able to walk independently without crutches. The applicant in response to a question in cross examination stated that by February 2023 he had removed the moon boot. However, he could not recall the exact date he stopped using the crutches or ceased wearing the moon boot. He further said that he ceased using the crutches in approximately February 2023.
Whilst there was some variation in the applicant’s evidence about approximately when he ceased using the moon boot and crutches the Tribunal considers the applicant did his best when responding to questions put to him in cross examination on this topic. It was contended on behalf of the respondent in submissions, and implicit from the approach adopted in cross examination, that the applicant’s evidence on this topic was not credible, plausible and further that he had exaggerated his self-reports of the incapacity and his symptoms. It was also contended on behalf of the respondent that in wearing the moon boot and using crutches, which were described as unnecessary bulky mobility aids, they were in some way part of an excuse, or perhaps even a contrivance, not to attend work. The Tribunal has already commented on the applicant’s credibility as a witness. It does not consider that at any time he has in any way exaggerated his symptoms and the incapacity that the injury he suffered on 31 October 2022 has subsequently caused him.
Further, the Tribunal has already, earlier in these reasons, addressed the question of the applicant returning to work on modified duties. It must be repeated that that opportunity was not given to him by the respondent. Therefore, it is quite wrong to submit, and such submission is rejected by the Tribunal, that the applicant chose to wear a moon boot and use crutches as some kind of excuse or contrivance to justify not returning to work and undertaking modified duties as had been recommended by the doctors who had examined him. There had been no request on the part of the respondent that he returned to work, even on restricted duties. For the avoidance of any doubt, the Tribunal cannot accept, as also contended for by the respondent, that the applicant’s conduct in this regard was a unilateral decision to effectively disqualify himself from work.
It should be observed that in cross examination it was not put to the applicant, as was later submitted by the respondent, that in using bulky mobility aids, they were unnecessary, and therefore, in some way part of an excuse, or perhaps even a contrivance, not to attend work or that in doing so it was a unilateral decision to effectively disqualify himself from work. What was specifically put to the applicant was that he was able to return to his job and his preinjury duties with the respondent early in 2023. The applicant’s response to these questions were that in early 2023 there had been no formal request to return to work. He was wearing his moon boot and using his crutches and was not able to do so. He reiterated that he had been previously denied access to the respondent’s premises, had made a request to meet the respondent’s distribution manager and that it was not prepared to undertake the ‘groundwork’ to enable him to return to the warehouse carrying out modified duties.
The Tribunal did not find Mr Allen’s evidence on this topic completely satisfactory. His response to these questions about the intermittent symptoms that the applicant informed him he was still experiencing with activity, whilst recorded in his report, seem to be wholeheartedly dismissed by him when in the evidence box. He did not go so far as to say the applicant was inventing this story or is in some way malingering, but in reaching the conclusion, he did without explaining away the applicant’s reference to the symptoms he was experiencing is problematic. It is problematic, particularly because the Tribunal has found that the applicant continues to suffer the symptoms in his right ankle as he has described them.
Dr Allen stated that when conducting the clinical assessment of the applicant he observed a normal gait when he walked. He acknowledged that he did not request the applicant to walk on uneven surfaces or, for instance climb stairs. He just observed him walking on a flat surface down the corridor. If the applicant had significant pathology in his ankle, Dr Allen stated he would have expected the applicant to display or manifest symptoms. He did concede that the applicant told him he experienced symptoms when he undertook physical activity.
When probed in cross examination about his conclusion that the applicant had experienced a minor ankle sprain which had long healed and resolved, Dr Allen conceded that it did fly in the face of what the applicant had told him concerning his intermittent symptoms. However, he stated that what the applicant told him was not independently verifiable. He stated that the objective evidence were the medical records and in particular the radiological images. Further, he contended that if medical practitioners were to rely upon a patient’s report of symptoms, they experienced which were not objectively verifiable way would be led into error. In this setting he stated that he took into account all the evidence.
Another matter that emerged from Dr Allen’s evidence concerned the question of the applicant’s preinjury duties. He stated that the applicant informed him that at the time when he conducted a clinical examination of him that he was working as a self-employed cleaner. He observed that the applicant had returned to such work.
When asked in cross examination what he understood the applicant’s pre-injury duties involved, all Dr Allen could respond with was that he recorded what the applicant told him in his report of 13 March 2024. Otherwise, he didn’t recall what the applicant’s preinjury duties were and acknowledged that he had not recorded them in his report. However, he sought to qualify this response by saying at the time he conducted the clinical examination of the applicant he had a better understanding of what his preinjury duties were. He then went on to state that it was important that his report should flow and show how an opinion by a medical expert is formulated. This reasoning of Mr Allen is a little difficult to comprehend. He did not for instance refer to any notes he made at the time he conducted his clinical examination of the applicant, which might have well included details of the applicant’s actual preinjury duties when employed by the respondent.
CONSIDERATION
As outlined above, the Tribunal has accepted the applicant’s evidence that he twisted his ankle as he described it on 31 October 2022. The circumstances in which the twisting of the applicant’s ankle occurred have already been recounted. The Tribunal has found that his ankle was twisted on two occasions on that day. The first occasion was in aisle 63 as described which was recorded on the CCTV footage in evidence. The second occasion was when the applicant alighted from the lolop in the parking bay after he had been directed to drive it to that bay by the team manager Hender.
The Tribunal also accepts the applicant’s evidence that prior to the events of 31 October 2022 he had not experienced any issues or concerns with either his legs or ankles. It accepts that during his time as an officer in the Sri Lankan army he passed all physical fitness assessments.
As for the medical evidence, the Tribunal prefers the evidence of, and opinions expressed by Mr Zhang and Mr Keith, both in their reports and from the witness box. There are several reasons for reaching this conclusion.
Mr Steadman did not conduct a clinical examination of the applicant. As he readily conceded in the witness box, a clinical examination is important. He also acknowledged that he was to some extent at a disadvantage by not having undertaken a clinical examination. Importantly, as assumed significance in this matter he was not able to test for laxity of the applicant’s right ankle as the other orthopaedic surgeons who gave evidence to the Tribunal were able to do by reason of conducting a clinical examination.
Another reason why the Tribunal prefers the evidence of Mr Zhang and Mr Keith concerns Mr Steadman’s conclusions as to the mechanism of the applicant’s injury. It will be recalled that Mr Steadman concluded in his report, which he adopted when in the witness box, that the injury mechanism was not one of inversion, which involves a twisting of the ankle. He described it as a minor planterflexion in work boots. For the reasons previously articulated the Tribunal has reached a different conclusion. It has accepted the applicant’s evidence that he twisted his ankle on two occasions on 31 October 2022. Therefore, an assumption upon which Mr Steadman has relied in reaching his conclusions and expressing the opinions that he does has not been found by the Tribunal to be the case.
As for the evidence of Mr Allen there are several reasons why the Tribunal does not prefer his report over that of either Mr Keith or Mr Zhang.
One should also observe that each of the other orthopaedic surgeons who gave evidence at the hearing of this application considered that the applicant had sustained an inversion injury to his right ankle. Even Mr Allen in his report, which he adopted in the witness box, in the section headed, ‘Mechanism of Alleged Injury/Sequence of Events’ recounted that the applicant slipped and fell sustaining an inversion injury to the right ankle. This observation of Mr Allen is consistent with the incidents described by the applicant.
Also, given the findings of the Tribunal that the applicant twisted his ankle twice on 31 October 2022, this factual finding differs from the assumption made by Mr Steadman in reaching the conclusions he did and expressing his opinions. Mr Steadman referred to only one incident in his report.
Mr Steadman in his report when providing the response to question 9 that was asked of him, expressed the opinion that the functional restrictions claimed by the applicant appeared to be grossly overstated compared to the injury noted on the MRI and the period of time which had elapsed since the injury, which by the time of his report was approaching 6 weeks. Having accepted the applicant’s evidence of the symptoms he experienced and continues to experience, which have certainly been corroborated by the expert evidence of both Mr Zhang and Mr Keith, the Tribunal is unable to accept Mr Steadman’s opinion that the functional restrictions appear to be grossly overstated.
Another matter that arises from Mr Steadman’s evidence, which the Tribunal considers is a factor in preferring the opinions expressed by Mr Zhang and Mr Keith, concerns the question of recovery from such an incident. His evidence that there is a bell curve which contains standard deviations assumed significance. It should be repeated that he said this represents the mean and gives a range. His evidence readily acknowledged that there were 10% to 20% of patients who don’t follow the expected path of recovery. Such patients it will be recalled, he stated, fall within the category of two standard deviations under the bell curve. As he said patients are human beings that do not always follow a pathway. It seems to the Tribunal, in this instance the applicant falls within this category of patient. This consideration would also rationally explain the observations made by both Mr Zhang and Mr Keith when they conducted their clinical examinations of the applicant.
Another significant factor which persuades the Tribunal that it should accept, are the opinions expressed by Mr Zhang and Mr Keith which arises from the observations they made when they conducted their respective clinical examinations of the applicant.
Mr Keith who examined the applicant 3 August 2023 made several observations. It is worthwhile briefly repeating them. On an assessment of the power of the applicant’s right ankle he recorded a decreased 4/5 power of plantar flexion, dorsiflexion, inversion and eversion. He did say this may have been related to effort. On ligamentous testing of the right ankle, he observed significantly increased laxity with positive anterior drawer. There was negative testing on the left ankle.
Mr Zhang examined the applicant on 15 May 2024. It should be noted that he is the orthopaedic specialist who most recently conducted a clinical examination of him. He recorded the applicant as being a straightforward historian. This certainly accords with the Tribunal’s observations of him. Upon conducting his examination of the applicant, Mr Zhang observed the applicant’s right foot to be tender along the peroneal tendons around the region of the lateral malleolus posteriorly and inferiorly. He also noted pain inferoposterior to that region with varus stress test. Importantly, he recorded increased laxity on the anterior draw test of the right ankle compared to the left. There was also pain with resisted plantarflexion and eversion.
The Tribunal also prefers the evidence of Mr Keith and Mr Zhang to that of Mr Allen. Some aspects of his evidence which are of concern to the Tribunal have already been addressed in the section of these reasons which addresses his evidence. Having found that the applicant continues to suffer from symptoms in his right ankle, it cannot accept Mr Allen’s conclusion that the sprain has long healed as he contends. His failure both in his report and when in the witness box to identify the intermittent symptoms that the applicant reported to him at the time he conducted the clinical assessment is unfortunate. It does to some extent leave the question hanging and renders Mr Allen’s report to that extent incomplete or deficient.
Further, it is of concern that Mr Allen was unable to record in his report, or recount when in the witness box, what the applicant’s preinjury duties were when he was employed by the respondent. Given that he did not appear to know what the applicant’s preinjury duties with the respondent were, it poses some difficulty in accepting the conclusion he expressed in response to question 5 of his report, and from the witness box, that the applicant has had capacity for normal employment for at least 18 months. The Tribunal has concluded that the applicant did not have such capacity.
Finally, with respect to Mr Allen’s report and evidence from the witness box there is another matter that must be addressed. As noted above when he conducted his examination of the applicant, he did not observe any laxity or as he put it in one part of his report any residual instability. This is at odds with the findings and opinions expressed by Mr Keith and Mr Zhang. It is not a question that is easy for the Tribunal to resolve. In the circumstances because the Tribunal is prepared to prefer the opinions expressed by Mr Keith and Mr Zhang who both found laxity when they examine the applicant, and as noted also, that Mr Zhang was the last specialist to examine the applicant, it is more probable than not, that he has continued to experience such a condition.
Therefore, the Tribunal finds that the applicant’s right ankle injury suffered by him on 31 October 2022 arose out of or in the course of his employment with the respondent.
By reason of the foregoing matters the Tribunal concludes that the applicant continues to suffer from the effects of his accepted right ankle condition. It also finds it by reason of accepting the opinions expressed by Mr Keith and Mr Zhang that as a result of the injury suffered by the applicant, he has an incapacity to engage in work at the same level at which he was engaged in that work by the respondent immediately before the said injury happened.
It also concludes by reason of the applicant continuing to suffer from the effects of his right ankle injury sustained on 31 October 2022 that arose out of in the course of his employment with the respondent, so that he requires ongoing medical treatment in respect of same under section 16 of the SRC Act beyond 20 December 2022.
The Tribunal finds that the applicant suffers from an incapacity for employment as a consequence of his accepted right ankle condition that arose out of in the course of his employment with the respondent, such as to give rise to an entitlement to the payment of incapacity benefits under section 19 of the SRC Act beyond 20 December 2022.
Finally, the Tribunal finds that the applicant is entitled to the reimbursement of various reasonable medical treatment expenses in respect of his accepted right ankle condition that arose out of in the course of his employment with the respondent such as to give rise to an entitlement to the payment of compensation pursuant to s 16 of the SRC Act, up to and including 20 December 2022.
I certify that the preceding 205 (two-hundred and five) paragraphs are a true copy of the reasons for the decision herein of R Cameron, General Member
......................[SGD]...........................
AssociateDated: 24 December 2024
Date(s) of hearing: 11-13 November 2024 Solicitors for the Applicant: Angela Sdrinis Legal Counsel for the Applicant: Ms Cassie Serpell Solicitors for the Respondent: HWL Ebsworth Lawyers Counsel for the Respondent: Ms Sarah Wright
Browne v Dunn (1894) 6 R 67.
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