Weldemichael v Id Sales
[2014] VMC 13
•10 JUNE 2014
| IN THE MAGISTRATES COURT OF VICTORIA |
AT MELBOURNE
WORKCOVER DIVISION
Case No. C11942650
| KIFLE WELDEMICHAEL | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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MAGISTRATE: | S GARNETT |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 15, 16, 19, 20 & 21 MAY 2014 |
DATE OF DECISION: | 10 JUNE 2014 |
CASE MAY BE CITED AS: | WELDEMICHAEL v ID SALES |
REASONS FOR DECISION
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Catchwords: s 45 (1)(b) application by Plaintiff to court to refer medical questions to a Medical Panel – refused. S 109 rejection of claimed injuries to left and right knees, left and right hips, back and right shoulder. S 98C/104B (2) rejection of liability for claimed injuries to left and right knees, left groin, left and right hips, back and right shoulder. S 93CC termination of weekly payments after 130 weeks for accepted abdomen and right groin injuries – suitable employment – factors to consider - worker’s reluctance to engage in occupational rehabilitation services offered to him.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms MacTiernan | Verduci Lawyers |
| For the Defendant | Mr Batten | IDP Lawyers |
HIS HONOUR:
1 Mr Weldemichael is aged 55 years, was born in Eritrea and commenced employment with the ID Sales and Repairs Pty Ltd as a trailer mechanic working on refrigerated trailers in September 2002. He ceased work with the them on 25 July 2006. By way of an Amended Statement of Claim filed on 16 May 2014, he seeks to challenge four decisions made by the his employer’s Workcover agent relating to:
i. by way of claim form dated 27 July 2006, he alleged that he sustained injuries to his abdominal and groin muscles on the right side as a result of heavy work performed by him in the course of his employment for which liability was initially denied pursuant to s 109 of the Act but ultimately accepted. Mr Weldemichael received weekly payments and medical treatment expenses for these injuries until he received a Notice of Termination dated 10 October 2008 seeking to terminate his weekly payments from 14 January 2009 on the basis that he had received 130 weeks of weekly payments and had a current work capacity or if no current work capacity it was not likely to last indefinitely;
ii. on 10 July 2008, Mr Weldemichael completed a further Workcover claim alleging injuries to his left and right knees from March 2007 due to the work he performed in the course of his employment. On 23 July 2008, the defendant rejected liability pursuant to s 109 on the grounds that he did not sustain injuries to his left and right knees arising out of or in the course of his employment;
iii. on 17 November 2010, Mr Weldemichael completed a further Workcover claim alleging injuries to his left and right hips, back and right shoulder as a consequence of the work performed by him during the course of his employment. On 15 December 2010, the defendant rejected liability pursuant to s 109 on a number of grounds including that he did not sustain these injuries arising out of or in the course of his employment;
iv. on 17 March 2011, Mr Weldemichael completed a s 98C/E claim for Impairment Benefits in relation to left and right knee, left and right groin, abdominal, left and right hip, back and right shoulder injuries. On 7 July 2011, the defendant pursuant to s 104B accepted liability for injuries to the right groin and muscle strain to the abdomen but rejected liability for the claimed injuries to the left and right knee, left groin, left and right hip, back and right shoulder.
2 Mr Weldemichael challenges the validity of the four decisions and seeks reinstatement of weekly payments from 14 January 2009 together with payment of reasonable medical and the like expenses in relation to the alleged injuries to his right shoulder, back, left groin, bilateral hip and bilateral knee conditions. He also seeks a declaration that he has in fact sustained injuries to the relevant body parts as a consequence of being required to perform heavy and repetitive work throughout the course of his employment including being required to adopt awkward and difficult positions, operating trailer jacks, kneeling, pushing, handling and manipulating heavy objects.
3 The defendant by way of an Amended Defence dated 19 May 2014 admits Mr Weldemichael was employed by it between 12 September 2002 and 24 July 2006 as a mechanic maintaining, servicing and repairing heavy trailers for the trucking industry. The defendant asserts that the rejected injuries did not arise out of or in the course of employment, that employment was not or is no longer a significant contributing factor to the aggravation, exacerbation, acceleration or recurrence of the rejected injuries and that Mr Weldemichael has a current work capacity or if no current work capacity it is unlikely to last indefinitely.
4 At the commencement of the hearing, Mr Weldemichael made application to the court for it to refer medical questions to a Medical Panel in accordance with s 45 (1)(b)(i) of the Act. The application was opposed by the defendant on the grounds that, firstly, there was confusion as to whether appropriate notice had been given to the defendant of the proposed application and secondly, there were factual and credit issues more appropriately determined by the court. The court refused the application on the basis that, appropriate notice of the application was not given to the court in accordance with s 45 (1)(b)(ii), some of the issues in dispute involved the resolution of factual issues including issues as to credit which were more appropriately determined by the court and the additional delay that will necessarily occur in the final resolution of the matter should medical questions be referred to a Medical Panel bearing in mind that the proceedings were issued on 13 July 2012 and have been listed before the court on 12 separate occasions including previously being listed for hearing on 14 March 2013.
5 Mr Weldemichael gave evidence over a period of four days with and without the assistance of a Tigrinya interpreter and was subject to a very intense and thorough cross examination. The parties tendered voluminous documents, medical records and reports and made submissions at the conclusion of the hearing.
6 Mr Weldemichael gave evidence over a period of 4 days for approximately eight and a half hours. He was argumentative, evasive at times, appeared unwilling or unable to answer direct questions asked of him during examination in chief and cross examination and at times refused to use the services of the interpreter. He gave conflicting evidence as to his periods of work as a qualified motor mechanic in Germany prior to coming to Australia in 1994. It appears that whilst in Germany he worked at Ivecco, Mercedes Benz and Nissan as a mechanic. After coming to Australia it appears he returned to Germany on numerous occasions before returning in December 2009 and he remained unemployed and in receipt of social security benefits until he commenced work with the ID Sales in September 2002. It also appears that in the period 1994 to October 1999 he did work at a number of factories for various periods in Victoria as a mechanic.
7 Mr Weldemichael gave evidence that he performed maintenance, service and repair work on refrigerated trailers. This work involved inspecting and servicing the mechanical parts on the trailers including; axles, drum and disc brakes, wheel bearings, brake relay valves, bolt and skid plates, oiling and greasing parts, wheel alignments, brake cam shafts, inspecting the chassis, greasing landing legs and support brackets and bolts, using jacks weighing in excess of 20 kg to lift the trailers and at times using a sledgehammer to loosen bolts or parts. He told the court that he was also required to perform welding duties. He estimated that 90% of his work hours involved physical work and 10% involved inspection work and that he would work on 3-5 trailers each day. He told the court that in order to perform these duties he was required to place his body in various awkward positions. A document prepared by Mr Weldemichael concerning his hours of work was tendered. It indicated that he would work 6 days a week and would regularly perform overtime and on average work 55 hours per week. The defendant did not dispute that he performed heavy duties.
8 Mr Weldemichael gave evidence that he experienced pain in the left side of his abdomen in February 2005 and consulted Dr Ilahee whose records indicate a diagnosis of muscular pain and then he had time off in March 2006 because of groin pain. A certificate from Dr Ilahee indicated that he was certified unfit for work from 28 March 2006 to 30 March 2006 due to right groin pain. The records indicate he presented with right groin to upper thigh pain with no evidence of a hernia. He also told the court that on 14 July 2006 he experienced right sided groin pain as he was lying on the ground using a jack to lift a trailer. He attended Dr Ilahee on 17 July with a complaint of right groin to right thigh pain without evidence of a hernia and an ultrasound and a blood test demonstrated no abnormality.
9 Mr Weldemichael told the court that since ceasing work in July 2006 he has also experienced continuing and worsening back pain on the left and right sides of his back. He told the court that he first experienced back pain whilst working and first experienced right knee pain in March 2007 when walking in the Dandenong Plaza shopping centre. He said that he cannot recall when he first experienced left knee pain but said it could have been in 2007 and believes that he first experienced right shoulder pain in March 2007. He gave evidence that his right hip causes the most pain and because of a combination of symptoms he does not consider that he would be fit to return to any form of employment as he has difficulty sitting, standing and walking. He said that if he is required to sit for longer than 30 minutes he experiences back, right hip and right sided groin pain. He said that when he walks he experiences back, right leg/knee and hip pain. He demonstrated to the court where he experiences the pain and indicated the groin to the inner aspect of his right thigh and across his low back. Mr Weldemichael told the court that he takes medication in the form of Naprosyn and panamax and uses deep heat on the painful areas.
10 Mr Weldemichael gave evidence that he is married and has two young children aged 8 and 7 years. He said that his wife has worked as a cleaner for various periods since coming to Australia in 2004. In cross examination, he agreed that as at 7 July 2006, he was aware that his employer had sold the business to Scott’s McColl’s Group as from 31 July 2006 and that he was offered a position with the new company on 17 July which was withdrawn on 27 July. He said he was not aware the new organisation was intending to re-locate to Laverton and agreed that he received a redundancy package. He agreed that he has not looked for employment since that time or registered with the Commonwealth Employment Service as a job seeker and told the court he has not done so because of the pain he has experienced. He told the court that he has been in receipt of the disability support pension since 14 January 2009.
11 During cross examination, Mr Weldemichael was questioned at length about various histories given by him to doctors and his participation or lack thereof in multi disciplinary programs and vocational assessments arranged by the Workcover agent. He told the court that he was not happy with an assessment at Cedar Court in 2006 because he thought he was referred to receive physiotherapy and massage treatment but they questioned him about his mental state. He accused them of “discriminating” against him. He also told the court that he did not pursue employment options suggested to him by Workstreams Workfocus or Ayres Management and agreed that he refused to participate as he did not consider that he was fit for any work because of his pain and did not want to work until he knew about his health. He agreed that he wrote numerous letters of complaint about the rehabilitation consultants. The defendant also tendered DVD surveillance footage taken of Mr Weldemichael on 9 January 2007 (5 minutes 15 seconds over 15 hours of surveillance) and on 31 July 2008 (9 minutes 55 seconds over 15 hours of surveillance). Surveillance reports relating to those dates were also tendered. The first DVD depicted him pushing his daughter in a pusher along the street, tipping it backwards, crouching, squatting, lifting her above the pusher and putting her in it and walking along the footpath without apparent restriction. The second DVD depicted Mr Weldemichael driving a vehicle, bending into the rear of the vehicle, lifting his child’s pusher into the boot, getting into and out of the car without apparent restriction, putting his child’s seat restraints on, lifting his child into a shopping trolley and carrying him. Mr Weldemichael agreed that the DVD depicted those actions without apparent restriction but told the court that he was in pain at the time.
12 Mr Weldemichael agreed that after ceasing work he successfully pursued a total and permanent disability claim under his superannuation scheme and received approximately $30,000. He agreed that he has failed to make any effort to return to work over the past 7 years but disputed that he failed to participate and co-operate with rehabilitation on the basis that they could not find him any suitable work considering his health condition. When it was suggested to him that he has a psychiatric condition he initially refused to answer and then told the court that he does not have a “brain problem”.
13 The records and reports of Dr Ilahee indicate that Mr Weldemichael initially complained of pain in the left side of his abdomen in February 2005 and then right groin to right upper thigh pain in mid 2005. The right sided pain persisted throughout 2006 but examination and tests did not reveal any hernia and she diagnosed a muscular injury of the right lower abdomen and right groin and thigh and to a lesser degree to the left groin and referred him for physiotherapy treatment and to Dr Littlejohn. Mr Sriskandarajah, Physiotherapist, reported on 27 December 2006 that Mr Weldemichael was continuing to complain of bilateral groin pain and lower abdominal ache with some associated back ache. Dr Ilahee reported on 14 December 2006 that she considered that Mr Weldemichael would be fit for a supervisory or sedentary job where no pushing, pulling or lifting was involved. Dr Littlejohn, Rheumatologist, wrote to Dr Ilahee in January 2007 noting that Mr Weldemichael was suffering bilateral groin and pubic region pain which was prominent in the right buttock area and groin regions radiating to the anterior thigh. He arranged a Bone Scan which was reported as normal on 16 January 2007. In December 2007, she reported that he had complained of knee pain since July 2007 which could have been contributed to by his work that involved “jacking” heavy trailers. In February 2008, she reported that he continued to experience lower abdomen to groin pain caused by a chronic soft tissue injury and acetabular labrum tear and chondral defects of the right hip confirmed on MRI. She also reported bilateral knee pain since July 2007. She still opined that Mr Weldemichael would be fit for restricted duties as a supervisor or clerk.
14 On 9 November 2006, Mr Weldemichael underwent a multi disciplinary assessment at Cedar Court. The report noted that the assessment had severe limitations due to Mr Weldemichael’s limited English. It also noted that Mr Weldemichael had refused the assistance of an interpreter and that he had become distressed if there was any discussion which he viewed as not directly related to his symptoms. The report noted that he described pain mainly on the right side of the lower abdomen going into the right groin and less so in the left groin and right low back. He denied pain in the left axillary. The report stated that Mr Weldemichael refused to participate in the assessment and declined to perform any lifting components, was resistant to providing information concerning his mental state, declined to complete standardised questionnaires, declined to complete the functional capacity assessment process or participate in the case conference and had stated that he believed he was referred for massage therapy only.
15 Dr Wilk, Physician, assessed Mr Weldemichael on 21 August 2006 for Gallagher Bassett approximately four weeks after he ceased work. He noted that the ultrasound performed on 19 July was normal as were the blood tests. He believed the most likely diagnosis was a hip abductor muscle and conjoint tendon strain and considered that he would be fit for sedentary work. Mr Robin Williams, Orthopaedic Surgeon, assessed Mr Weldemichael for Gallagher Bassett on 15 March 2007. He obtained a history of persisting complaints of pain in the right groin, the right loin and left loin and discomfort across his lower abdomen. Mr Weldemichael told him that the more he walks the more his right groin and lower back hurt and this causes him to limp and drag his leg. (These symptoms were not demonstrated on the surveillance conducted approximately 8 weeks earlier). Mr Williams diagnosed that Mr Weldemichael most likely suffered muscular strain in the right inguinal region and that anxiety and concern were playing a significant part of his continuing sense of illness. Dr Yong, Occupational Physician, assessed Mr Weldemichael for Gallagher Bassett on 1 August 2007 and 4 February 2013. He obtained a history of pain in the right abdomen radiating into his right groin and right back and left abdomen pain radiating into his left groin and left back. Mr Weldemichael also complained of right knee pain of 3 months duration which Dr Yong attributed to age related degenerative changes. He opined that the back pain was radiating from his abdominal and groin pain and that he would be fit for suitable work. On his second examination, Dr Yong noted that Mr Weldemichael was complaining of; right and left groin pain radiating through his abdomen into his back, left and right knee pain and right shoulder pain. He opined that the pain was caused by degenerative conditions in the back, hips, knees and right shoulder. Dr Yong recommended that Mr Weldemichael participate in an activity based recovery program involving physical therapy modalities and that he would be fit for suitable duties.
16 Mr Robin, Orthopaedic Surgeon, first saw Mr Weldemichael on referral from Dr Ilahee in September 2007 for his left and right knee complaint for which he recommended arthroscopy surgery. He reported that an MRI scan of the right hip indicated chondral and labral injuries with tears to the acetabular labrum and chondral defects. He opined that it could be due to degenerative change in the right hip joint, possibly of post traumatic origin or of a degenerative type. In relation to his left and right knee complaints, Mr Robin noted that there was no clear history of mechanical injury although the nature of his work was stressful and is probably implicated to some extent in the development of his knee problems but the damage was more of a degenerative type than traumatic.
17 Mr Weaver, Orthopaedic Surgeon, assessed Mr Weldemichael on 23 June 2008 for Gallagher Bassett. He obtained a history from Mr Weldemichael that he first began to experience pain from the low back region to both groins and the right side of his abdomen. He also noted that Mr Weldemichael was unhappy with the advice he received from Dr Ilahee and stated, “if she gave my advice, I would save my health”. Mr Weldemichael also complained to Mr Weaver that he experienced pain in both knees although Mr Weaver could find no convincing clinical evidence of knee pathology. Mr Weaver opined that Mr Weldemichael was probably suffering degenerative pathology affecting his lumbar spine and right hip. He considered that he would be fit for light or sedentary work with assistance through rehabilitation. Mr Michael Johnson, Orthopaedic Surgeon, reported to Dr Ilahee on 28 June 2008 that an MRI Scan of the lumbar spine demonstrated minor lower lumbar degenerative changes without specific abnormality and that he was unable to give an anatomical cause for his pain. He suggested that Mr Weldemichael see Dr de Graaff, Rehabilitation Specialist. Dr de Graaff, reported that he saw Mr Weldemichael on 8 August 2008 and obtained a history of intermittent thoracic and lumbar pain radiating to the thigh and bilateral groin pain. He recommended a multidisciplinary rehabilitation program incorporating functional restoration and pain management strategies. In December 2008, Dr de Graaff reported to Mr Johnson that although Mr Weldemichael was accepted for an assessment at Epworth, he refused to undergo the process because he had been told it was similar to the program he underwent at Cedar Court. Dr Castle, Occupational Physician, saw Mr Weldemichael on referral from Dr Ilahee on 25 August 2008. He obtained a history from Mr Weldemichael that he first experienced right knee pain in March 2007 when walking in the Dandenong Plaza. Mr Weldemichael told him that he experienced pain in his back and hips at night. He noted that he underwent an arthroscopy in October which was unsuccessful in relieving his pain. He diagnosed right knee pain caused by osteoarthritis of the right hip and knee with his knee pain contributed to by his right hip pain. He found that employment was a significant contributing factor and required physiotherapy, analgesics and possibly a right hip replacement which would then enable him to be fit for a graduated return to suitable work. Dr Castle referred Mr Weldemichael to Mr Hayes, Surgeon, at the St Vincent’s Hospital who reported in November 2009 that he had injected the pubic tubercle with a silicon steroid. In a report dated 7 March 2011, Dr Castle obtained a history from Mr Weldemichael that he had a painful right shoulder which had developed in 2007 and that he had undergone an arthroscopy and ultrasound. He also said that there was no precipitating event, that he had told Dr Ilahee who had told him it was due to a circulation problem and that he did not report it to his employer because he did not know how to. Dr Castle noted that Mr Weldemichael had been referred to the Barbara Walker Centre at St Vincent’s Hospital for physiotherapy and hydrotherapy. Dr Castle diagnosed him to be suffering from; chronic soft tissue injury to both groins, tearing of the right acetabulum and right hip joint labrum, low back pain, bilateral knee pain and right rotator cuff syndrome as a consequence of the heavy work performed in the course of his employment. He did not consider that he had any capacity for employment. In March 2012, he reported that Mr Weldemichael remained incapacitated for all employment.
18 Dr Andrianakis, who took over the care of Mr Weldemichael from Dr Castle, reported in July 2013 that he considered Mr Weldemichael to be unfit for work because of work injuries to his right hip, groin, lower back and both knees. Dr Andrianakis continues to provide certificates that Mr Weldemichael remains incapacitated for all employment.
19 Dr Fish, Occupational Physician, assessed Mr Weldemichael on 7 June 2011 for the purposes of a s98C impairment claim. After examination and inspection of radiological reports he noted that the only positive finding on investigation was evidence of degenerative joint disease in the right hip. He stated that his symptoms were consistent with a labral tear and osteoarthritis in the right hip. He assessed Mr Weldemichael as having a 10% whole person impairment pursuant to the Guides in relation to his right hip condition.
20 The radiological reports tendered indicated:
· Ultrasound Right Groin 19 July 2006: no evidence of groin hernia or other significant finding;
· X-Ray Pelvis 19 September 2006: No bony abnormality of the pelvis or hips;
· Bone Scan 16 January 2007:no abnormality;
· CT Lumbosacral Spine 24 April 2007: no evidence of disc bulge, protrusion, central canal or foraminal stenosis;
· Bone Scan Left and Right Knees 27 July 2007: Bone density and bone and alignment are normal. The joint spaces are maintained. No joint effusion or joint opaque loose body formation;
· MRI Left and Right Knees 4 September 2007: focal deep chondral fissuring of left knee and low grade patellofemoral chondropathology of right knee;
· MRI Right Hip 20 September 2007: a tear through the mid and posterior aspect of the superior labrum is identified. There is adjacent full thickness chondral loss of the femoral head and neck measuring 3mm in maximal width. Minimal perilabral ganglion cyst formation is seen. Small but prominent narrow stress response in the adjacent lateral acetabulum observed. These findings are consistent with loss of the normal concavity at the anterior femoral head/neck junction are consistent with manifestations of femora acetabular impingement;
· CT of the Abdomen and Lumbosacral Spine 22 October 2007: Normal findings of abdomen, pelvis and lumbosacral spine;
· Ultrasound Right Shoulder Injection 3 April 2008: procedure well tolerated;
· MRI Lumbar Spine 4 June 2008: Minor disc degeneration L3-4 to L5-S1. There is no focal disc protrusion or significant central or foraminal stenosis;
· Right Shoulder Ultrasound 19 March 2010: The long head of the biceps tendon, subscapularis, infra spinatus tendons are normal. The supra spinatus tendon is mildly thickened with loss of the fibrillary pattern and consistent with diffuse tendinosis. The subacromial bursa is thickened. Impingement was demonstrated on active testing.
21 Associate Professor Goldwasser, Orthopaedic Surgeon, assessed Mr Weldemichael on behalf of his lawyers on 11 February 2014. He was provided with numerous medical and radiological reports and subsequently viewed various imaging. He obtained a history from Mr Weldemichael of pain in his right groin extending to his right hip area and to his lower back and the lateral thigh and loin when working. He also obtained a history of developing right shoulder, right knee, lower back, both hips and left knee pain in 2007. Mr Weldemichael complained on experiencing pain in the right hip and groin area extending to the right buttock and loin, pain in the right knee, left knee and right shoulder. Associate Professor Goldwasser was of the opinion that clinically, Mr Weldemichael had right hip pathology and no pathology in his knees and that it was not clear what injuries he suffered but it was likely he aggravated pre-existing changes in the right hip joint and possibly his back. He believes the right hip injury is probably a significant factor for his groin pain. He opined that Mr Weldemichael would be fit for suitable light duties where he was able to alter his posture from time to time and was not required to do heavy or repeated bending and stooping.
22 The defendant tendered numerous vocational assessment reports from Workstreams dated18 December 2006, 18 January 2007, 17 March 2007, 22 May 2007, Workfocus dated 5 August 2007, 8 April 2008 and a report from Ayres Management dated 21 November 2008. In his initial assessment with Workstreams, Mr Weldemichael indicated that he did not want to return to work until his pain had subsided and was not fit for work at that time. He did indicate that he was interested in computer and English retraining as he believed answering telephones and office clerical duties would be suitable. In the report dated 18 January 2007, it was noted that Mr Weldemichael would not look for work but that if Workstreams did put an offer of employment in writing to him, he would “try it” but would stop if he had pain. Despite issues concerning language, Mr Weldemichael informed Workstreams he would not attend appointments if they arranged a Tigrinya interpreter. He also refused permission for Workstreams to contact Dr Ilahee and the writer noted in March 2007 that his contact with them was limited, he told them that he was not interested in seeking new employment with the aim of redeployment in the areas of assembler, product examiner, light hand packer, package and container filler, light process worker or inquiry clerk, as suggested by them. The report also indicates that Mr Weldemichael preferred to manage his own business or undertake re-training to secure administrative work and further noted that Workstreams had provided him with training and assistance to develop a resume and job application letters. By May 2007, it was reported that Mr Weldemichael did not wish to participate in an occupational rehabilitation program and did not want to continue to communicate with Workstreams.
23 The report from Workfocus dated 5 August 2007 noted that Mr Weldemichael refused written permission for them to obtain medical information and was reluctant to discuss issues or answer any questions unrelated to his injury. The report stated that Mr Weldemichael would not accept any suitable new employment until he had previewed all of the inherent job requirements, had visited the worksite and assessed the work duties and environment and that if offered suitable employment would try but cease immediately if he felt pain in the groin region. He also refused to complete a required assessment tool necessary to explore career options and stated that he did not have any vocational interests other than returning to work as a mechanic. Workfocus identified suitable employment options as being; assembler, process worker, motor vehicle parts interpreter, postal sorting officer, general clerk and payroll/accounts clerk. In a report dated 8 April 2008, Jodi Digregorio from Workfocus noted that Mr Weldemichael attended three job seeking assistance interviews but refused to complete the requested activities on the basis that he was not fit for any employment and “did not see the point in any of this”.
24 Ayres Management assessed Mr Weldemichael on 17 November 2008. The writer noted that she discussed with Mr Weldemichael the fact that medical opinion suggested he was fit for suitable employment but that he was adamant that a return to work at that time was out of the question. She identified suitable employment options as being; postal sorter, customer services officer, motor vehicle parts interpreter, internal sales/counter hand/order taker, light process worker, machine operator, product assembler, product quality controller and hand packer. She noted his past experience, skills and training involved that of a motor mechanic, truck assembler, factory hand and truck mechanic and that he had completed a basic computer course. She also noted that Mr Weldemichael was adamant that a return to work was unrealistic given his priority of maintaining his health and on that basis it was impossible to engage in worthwhile vocational exploration and any attempt to identify suitable employment.
Conclusion
25 Mr Weldemichael was a difficult witness to understand at times and was intent on providing the court with his “story” rather than answering questions asked of him. He was evasive and argumentative, even with the interpreter, despite numerous warnings given to him. This may be explained by his pre-occupation with the state of his health and his refusal to accept that he may be suffering from a pain disorder or psychiatric/psychological condition. I found him to be an unimpressive witness.
26 There is no dispute that his work was heavy and that he worked long hours. He was required to work in awkward positions that undoubtedly put stress and strain on his body. In particular, when using a jack to lift trailers he would at times be required to lay under the trailer on his left or right side and lever the jack or be in a crouching position to do so. The only specific incident that occurred was on 14 July 2006 when he experienced right sided groin pain when using the jack whilst lying on the ground. He did not give evidence of any other incident during his evidence or when giving his history to doctors. I accept that as at the date he ceased work he was experiencing pain in the groins and abdomen. It is most likely that he was not offered employment with Scott’s because he had provided a certificate of incapacity at that time. The issues to be determined are which of the alleged medical conditions arose out of or in the course of his employment for which employment was a significant contributing factor and whether Mr Weldemichael has a capacity for suitable employment.
27 I am not satisfied on the evidence presented that the pain, discomfort and restrictions he experiences in his left and right knees, back and right shoulder are due to injuries which arose out of or in the course of his employment. Mr Weldemichael carries the onus of proof in establishing that his employment was a significant contributing factor to the aggravation, acceleration, exacerbation or deterioration of these pre-existing degenerative conditions.
28 The first complaint of right knee pain occurred in July 2007, some 12 months after ceasing work with a history of symptoms commencing in March 2007, 9 months after ceasing employment, when walking in the Dandenong Plaza Shopping Centre. He subsequently began to develop left knee pain at an unspecified date in 2007, once again some 9-12 months after ceasing work with the defendant. I find it probable, based on the opinions of Mr Robin and Dr Yong and the results of the Bone Scans and MRI Scans that Mr Weldemichael has underlying pre-existing degenerative changes affecting both knees. I am not persuaded that his employment was a significant contributing factor to the aggravation, acceleration, exacerbation or deterioration of the underlying degenerative process on the basis that there was no specific incident in the course of his employment causing pain and discomfort in either knee and the symptoms he complains of did not commence until at least 9 months after he ceased employment.
29 Similarly, I am not persuaded that the right shoulder symptoms are work related. The history given to doctors indicate that the first symptoms occurred at some stage in 2007 almost 12 months after ceasing work. However, the first record of any investigation did not occur until he underwent an ultrasound guided injection in April 2008 at the request of Dr Kneebone and the first complaint of shoulder discomfort did not appear in Dr Castle’s notes until 14 April 2010. The ultrasound results do not indicate a traumatic injury and I accept the medical opinion of Dr Yong that it is degenerative in nature. I am not satisfied in the absence of any specific incident occurring during employment and there being a significant delay before the onset of symptoms after he ceased employment that the work performed by him with ID Sales resulted in an aggravation, acceleration, deterioration or exacerbation of the degenerative condition in his right shoulder.
30 I am not satisfied that Mr Weldemichael has suffered from a work related back injury. I find that the back ache he has experienced is a consequence of the groin and abdomen strain as opined by Dr Yong and is also contributed to by the underlying minor degenerative condition as opined by Mr Weaver and Mr Johnson and confirmed on CT and MRI Scans. The only supportive specialist medical opinion is that of Associate Professor Goldwasser who assessed him in February 2014, some 7 and a half years after ceasing employment, who opined that it was “possible” he aggravated his underlying condition. In the absence of specific trauma and the delay in the first report of back symptoms, I am not satisfied that his employment was a significant contributing factor to the aggravation, acceleration, exacerbation or deterioration of the underlying degenerative condition of his back.
31 In relation to his right hip condition, Mr Weldemichael complained of right sided groin pain in September 2005, March 2006 and July 2006. He told the court that he still experiences pain in the right side of his groin to the inner aspect of his right thigh. It was initially diagnosed as a muscular injury to the right groin and thigh and right lower abdomen. Dr Wilk opined in August 2006 that the most likely diagnosis was a right hip abductor muscle and conjoint tendon strain. Dr Yong, Mr Weaver and Mr Robin believed he had a degenerative condition of the right hip. Dr Castle, after viewing the MRI Scan dated 20 September 2007, which demonstrated tearing of the right acetabulum and right hip joint labrum, opined that his condition was as a consequence of his work duties. Dr Fish was of the opinion that he had degenerative joint disease of the right hip which was consistent with a labral tear and osteoarthritis relevant to the right groin and muscle strain to the abdomen. Associate Professor Goldwasser opined that his employment “most likely” aggravated the pre-existing changes in the hip joint which is a significant factor in his groin pain. I am satisfied, given the nature of his duties, the location of his pain, the consistency of complaint over the years and the balance of medical opinion, that employment was a significant contributing factor to the aggravation, acceleration, exacerbation or deterioration of the pre-existing degenerative condition of his right hip. I accept that his initial complaints of right sided groin pain from 2005 and 2006 emanated from his right hip as a consequence of the work performed by him and accept the opinions of Dr Wilk, Dr Castle, Dr Fish and Associate Professor Goldwasser on this issue.
32 Therefore, I find that Mr Weldemichael sustained injuries in the form of a right groin strain and muscle strain to the abdomen and an aggravation of a degenerative condition of the right hip arising out of or in the course of his employment with ID Sales between September 2002 and 25 July 2006. I find that he has not sustained injuries to his left and right knees, left hip, back or right shoulder arising out of or in the course of his employment with ID Sales.
33 Mr Weldemichael contends that as a consequence of his work related injuries he has no current work capacity which is likely to last indefinitely and is therefore entitled to weekly payments of compensation from 14 January 2009. Dr Ilahee assessed Mr Weldemichael as having a capacity for suitable work where no heavy lifting or heavy use of abdominal and groin muscles was required in September 2006. She suggested he could perform sedentary type work involving answering phones, keeping documents and using a computer. She continued to certify him as fit for suitable duties throughout 2007 and by February 2008, she imposed work restrictions of lifting no more than 2 kg, no pulling, pushing, bending or prolonged sitting and standing over 30 minutes. She noted suitable work would be as a supervisor or clerical type work.
34 Other doctors who have considered him fit for suitable work over the years have been Dr Yong in August 2007, Mr Weaver in June 2008 and Associate Professor Goldwasser in 2014. Dr Castle and Dr Andrianakis have opined that he has had no work capacity at all. The suggested suitable employments by all vocational assessors have been; light assembly worker, light process worker, inquiry/postal clerk and motor vehicle parts interpreter. At the time the reports were prepared it was said that Mr Weldemichael had the necessary skills to perform the inherent requirements of each job and the tasks could be performed sitting and/or standing which would provide the flexibility for him to change his posture when required.
35 Mr Weldemichael has not looked for or actively sought any forms of employment since ceasing work on 25 July 2006. His attitude at all times has been that he will not return to work unless and until all of his medical problems have been attended to and the Workcover agent/rehabilitation provider(s) find him a job that he considers suitable. Although the law requires him to; make every reasonable effort to participate in an occupational rehabilitation service, to return to work in suitable employment, and, to participate in assessments of his incapacity, rehabilitation progress and future employment prospects when requested, he has declined to do so. Notwithstanding this failure, the defendant has at no stage sought to terminate his payments on these grounds despite having the power to do so under the Act. In my opinion, this issue, together with the factors set out in the definition of ‘suitable employment’ in s 5 of the Act, being; the nature of his incapacity and pre-injury employment; his age, education, skills and work experience; his place of residence; the medical opinion; and, the previous offer of rehabilitation services; are all relevant when considering whether Mr Weldemichael has a current work capacity or no current work capacity which is likely to last indefinitely.
36 In order to satisfy the court that he has no current work capacity which is likely to last indefinitely, Mr Weldemichael must demonstrate that he is incapable of returning to either his pre-injury employment or ‘suitable employment’ as a consequence of his compensable right groin strain, muscle strain to the abdomen and right hip condition. The conditions which I have found to be non-compensable are to be disregarded for these purposes. The defendant has the evidentiary onus of establishing that there are ‘realistic’ suitable employment options open to Mr Weldemichael and he has the legal onus of establishing that no ‘suitable employment’ exists and therefore he has ‘no current work capacity that is likely to last indefinitely’.
37 After considering his age, being 50 years when payments were terminated and now 55 years, his considerable transferable skills as identified by the vocational assessors, his vast experience in the automotive industry in Germany and Australia, the nature and extent of the injuries he has sustained to his right groin, abdomen and right hip, the medical opinions of Dr Ilahee, Dr Yong, Mr Weaver and Associate Professor Goldwasser, together with his failure to help himself by his refusal to engage in occupational rehabilitation services previously offered to him, I find that he does have a ‘realistic capacity’ for suitable employment, in the occupations suggested by the vocational assessors and has had so since January 2009.
38 Accordingly, I find that Mr Weldemichael has a ‘current work capacity’ and is not entitled to weekly payments pursuant to the provisions of the Accident Compensation Act 1985 from 14 January 2009.
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