Westwood v VWA

[2021] VCC 1240

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-20-01704

ANTHONY WESTWOOD	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HIS HONOUR JUDGE PILLAY
WHERE HELD:	Melbourne
DATE OF HEARING:	9 and 10 August 2021
DATE OF JUDGMENT:	2 September 2021
CASE MAY BE CITED AS:	Westwood v VWA
MEDIUM NEUTRAL CITATION:	[2021] VCC 1240

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION

Catchwords:              Serious injury application – Work-related injury – Whether injury “significant” or “marked” – Causation – Credit – Whether Plaintiff had repetitive and heavy work duties – Impairment consequences – Conflicting affidavit material – Uncontested affidavit material

Legislation Cited:      Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)

Judgment:                  Application dismissed

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Richards QC with Mr L Allan	Zaparas Lawyers
For the Defendant	Ms S Manova	Thomson Geer

HIS HONOUR:

1Mr Anthony Westwood started working for Malouf Industries as a storeman at their Bayswater premises in August 1995. Malouf is a steel distributor and supply company. Mr Westwood worked at Malouf in Bayswater until February 2017. After that time, he moved to work at the Springvale premises. Ultimately, he stopped work at Malouf on 23 December 2017. He has not returned to work since that time and was formally terminated in May 2018. Why Mr Westwood left work is the central issue in this case. Mr Westwood alleges that he left work because his low back was aggravated by his work, causing the onset of unrelenting pain and physical limitation. He alleges that it was the physical and repetitive nature of his work that brought about this aggravation. Malouf argues to the contrary; that the work that was performed was neither heavy nor repetitive. Further, it argues that there was never a complaint of low back pain during the course of employment and that such pain and limitation of movement has arisen by reason of natural degeneration of Mr Westwood’s spine. Mr Westwood argues that the workplace injury he has sustained falls within the defined meaning of being a serious injury pursuant to section 335(5)(a) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“WIRCA”).[1] In particular, he argues that he has a serious injury by reason of physical injury to his low back resulting in impairment consequences which are more than significant or marked and in addition that he has lost the capacity to work completely so that he is entitled to a determination of serious injury by reason of his loss of earning capacity. Both of these further matters are contested by Malouf.

[1]Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s 335(5)(a)

Facts

2Mr Westwood was born on 5 January 1959. He completed school in year 10 at about the age of 16 and then was a bricklayer for about six years. He then had a full-time job with Seward Nominees for about 10 years. In 1995, he commenced part-time with Malouf Industries. Initially, that was in a casual role but essentially he seemed to have worked full-time hours. In 1997, he began work at the Malouf Industries Bayswater factory on a full-time basis as a storeman. In that role, he was required to load and unload steel from trucks, place steel lengths into storage racks and then cut them to appropriate lengths for sale to customers. To do this work, he also occasionally drove a forklift and performed steel cutting duties with both an oxy acetylene torch and a bandsaw. The duties involved him carrying lengths of steel at times and at other times using an overhead crane to perform the lifting of steel. For example, when trucks brought steel to the factory premises they were often in bundles or packs weighing in excess of 500 kg. The crane or the forklift would be used to move the packs of steel onto the factory floor where they would be broken down. Individual lengths would be then carted about the factory using the overhead crane, or for smaller pieces, these were be moved by hand. There was very significant dispute about the nature of the tasks performed and the weights required to be lifted in the course of normal duties.

3Because of the significant debate about the exact work duties, it is necessary to set those out in some detail. Mr Westwood deposed in his first affidavit in the following terms:[2]

“[M]y job involved cutting steel for customers, putting steel on racks when it was delivered and loading and unloading trucks. Sometimes I would drive a forklift. The work was often heavy and repetitive. The steel products varied in weight. The products which were too heavy to lift manually were lifted using an overhead crane or forklift.”

[2]        Plaintiff’s Court Book (“PCB”) 17, at paragraph [9]

4As to the circumstances of his injury, he stated:[3]

“In about mid-December 2017, I was doing my regular work duties. At that time, I believe I was cutting steel and walking around the store. The store was cluttered, and I had to constantly keep stepping over steel and other materials. I felt pain in my legs mainly behind my knees.”

[3]        PCB 18, at paragraph [15]

5Workers from the Defendant’s premises then filed affidavit material contradicting Mr Westwood’s evidence and detailing the work that they would perform. Before dealing with that, I will set out the further details of what the Plaintiff described as his work duties.

6In his second affidavit, Mr Westwood described having to separate bundles of steel and having to move them manually after they were delivered. He accepted that occasionally he would use a crane for heavy things. He deposed that the crane was often in use on other tasks and he was required to carry lengths of steel by hand to the saw bench. The lengths would be up to 8 m long and weigh more than 15 kg whenever longer than that.[4] He described the crane often not being available and having to lift weights in excess of 15 kg if the forklift was busy.[5] He described often lifting steel from the ground level, from inside and outside and having to lift steel up onto the saw bench.[6] He described having to kneel on the floor with his back bent spending 5 to 6 hours a day bent over doing oxy acetylene cutting.[7] He described the floor at the Bayswater and Springvale factories as being cluttered by things in the walkway requiring him to step over things.[8] He specifically described lifting steel depicted in tendered photographs[9] by himself.

[4]PCB 23, at paragraph [9(a)]

[5]PCB 24, at paragraph [9(d)]

[6]PCB 24, at paragraph [9(e)]

[7]PCB 24, at paragraph [9(f)]

[8]PCB 24, at paragraph [9(g)]

[9]PCB 134

7The Defendant relied on evidence provided by Dean Campbell, in an affidavit sworn 5 March 2021.[10] Mr Campbell had been employed by Malouf Industries for approximately 25 years and was relevantly the branch manager at the Springvale factory. He became acquainted with Mr Westwood when he began working at the Springvale branch in February 2017. He confirmed that Mr Westwood’s job was cutting steel to length as per customer orders and otherwise keeping the warehouse clear of any debris or clutter.[11] Specifically, he stated that Mr Westwood was not required to lift steel over 15 kg as a crane was available for anything over that weight.[12] He deposed that there were clear designated walkways in the factory that meant a worker was not required to step over or avoid objects on the floor.[13]

[10]DCB 78

[11]Defendant’s Court Book (“DCB”) 78-79, at paragraph [6]

[12]DCB 79, at paragraph [7]

[13]DCB 79, at paragraph [8]

8The Defendant also relied on affidavits of Mr Greg Bow. The first was sworn 5 March 2021.[14] Mr Bow has been a director of Malouf Industries since 1989. He confirmed that the business of Malouf Industries was to supply steel either in full lengths or cut down lengths. He confirmed the general duties that Mr Westwood was required to perform and stated that for unloading steel deliveries this duty was never undertaken manually as the steel was delivered in bundles that had to be moved by crane given their weight of over several hundred kilograms.[15] As to cutting steel to size, this involved Mr Westwood collecting the steel as per the order then using a crane to move the steel and using the band saw to cut to length.[16] He confirmed that in the cutting of steel, Mr Westwood would not manually lift any steel over 15 kg. He deposed that steel that was between half a kilo and up to 15 kg was sometimes moved manually.[17] His evidence was that there was no repetitive heavy lifting.[18] He further confirmed that the workplace was not cluttered and Mr Westwood did not have to constantly step over steel and other materials to do his job.[19] He confirmed that he did not receive any report from Mr Westwood until mid-May 2018 of a workplace injury – some 4 months after he had ceased work.[20]

[14]DCB 81

[15]        Affidavit of Mr Bow sworn 21 May 2021 DCB 102, at paragraph [11]

[16]DCB 82, at paragraph [4(c)]

[17]DCB 82, at paragraph [5]

[18]DCB 82, at paragraph [6]

[19]DCB 82, at paragraph [8]

[20]DCB 83, at paragraph [14]

9The Defendant also relied on an affidavit of Mr Sherrard Fogarty, sworn 24 May 2021.[21] He is a shop manager employed by Malouf Industries and began working there as a storeman/truck driver in approximately August 2014. He worked at the Bayswater premises. He deposed that he worked with Mr Westwood at Bayswater and they performed the same roles as storemen. He confirmed that the role of a storeman involved unloading and loading steel from trucks, cutting steel, cleaning up, using a crane and forklift work. He deposed in the following terms:[22]

“In my role as storeman I never had to lift steel regularly as there was a crane available to do so.… There would be occasions when I would lift steel by hand but it was never anything heavier than 15 kilograms and usually just small offcuts that came off after cutting, usually only half a kilo to a few kilos or so. We used the crane for lifting everything else. Because we use the crane the work was not heavy and the duties we performed varied from day to day.”

[21]DCB 98

[22]        DCB 99, at paragraph [6]

10Then in paragraph 7, he deposed “[t]here was only one crane at the Bayswater premises, but you never had to wait too long to use it”.[23] 

[23]        DCB 99, at paragraph [7]

11He went on at paragraph 8, where he deposed:[24]

“We would normally use the crane or forklift to lift the steel from the back of the truck and onto the ground momentarily where we would break apart the bundle and then use the crane to lift the pieces of steel onto the relevant rack in the warehouse.”

[24]        DCB 99, at paragraph [8]

12He deposed generally, that cutting the steel was an easy task on the band saw. As to the worksite generally, he described it as clean and tidy and not a situation where you have to step over things to do your job. As to steel plate cutting he categorically stated this was done on the table and not on the ground.[25] He contradicted the Plaintiff’s evidence and stated that this cutting task was for around 45 minutes, not the 5 to 6 hours that he understood the Plaintiff alleged.[26] He stated this task was infrequent and he believed that Mr Westwood never performed this task more than once per week.[27]

[25]DCB 99, at paragraph [11]

[26]DCB 99, at paragraph [11]

[27]DCB 99, at paragraph [11]

13The contradiction between these different versions of events grew further complicated when a further affidavit of Mr Bow was sworn on 21 May 2021.[28] He deposed as to the cutting of steel plate, that it was infrequent work only performed 10 to 15 minutes per day and no more than 1 to 2 hours per week.[29] As to loading and unloading, he was adamant that the crane was used for the vast majority of loading and unloading work and materials were only lifted if they weighed less than 15 kg.[30]

[28]DCB 101

[29]DCB 101, at paragraph [5]

[30]DCB 102, see paragraphs [9]-[10]

14The dispute regarding the duties performed by Mr Westwood during the course of his employment are said not to be material by Mr Richards QC, who appeared with Mr Allan, for Mr Westwood. Mr Richards submitted that the work was undoubtedly physical, had a degree of repetition and was performed over a long period of time by Mr Westwood – being the over 20 years of employment with Malouf. There was little reason to go beyond that, submitted Mr Richards, because that was the substantial history taken by various doctors in reaching their ultimate opinions that Mr Westwood suffers from lumbar spinal injury which has been significantly contributed to by his employment.

15In contrast, Ms Manova, who appeared for the Defendant, submitted that the very substantial differences over the work duties undermined the medical opinions the Plaintiff proffered in support of his case and further undermined his own reliability as a witness when deposing to the impact of his work injuries as to his pain and suffering and loss of earnings consequences. In the circumstances, I consider it necessary to consider all of the evidence prior to making a determination as to the exact work duties performed by Mr Westwood.

Medical history

16Turning next to the events of 2017. I note that there is nothing in the medical history prior to December 2017 that was said to be relevant to the events of 2017. No attention was paid to this period.

17Mr Westwood worked his normal duties during 2017 until going on holiday to New Zealand on 28 November 2017. He returned to work on 4 December 2017.[31] He then worked on normally. He deposed in his first affidavit, that he began to feel pain in his legs, mainly behind his knees, in about mid-December 2017.[32] His affidavit said nothing more. However, under cross examination he disclosed that he had mentioned his leg pain, as a result of stepping over things, to other workers.[33] Particularly he stated that he had reported his leg symptoms to Dean Campbell and ‘Travis’ at Bayswater.[34] When pressed about the details of this report he gave evidence that he was unable to remember as he did not have his papers, which he described as “little notes”.[35] A call was made for those papers. Mr Westwood was given the luncheon adjournment and then again overnight to locate and provide those “little notes”. On resumption, on the second day, Mr Richards announced that the “little notes” were not able to be found and that the only document produced in response to the call was a diary for the period 2001 to 2005 which both parties agreed was wholly irrelevant.

[31]PCB 36, at paragraph [3]

[32]PCB 18, at paragraph [15]

[33]Transcript (“T”) 32, Line (“L”) 26-29 and see also T35, L16-23.

[34]T35, L21 - 23. See also T33, L5-9. This in itself is curious given that Travis was employed at the Bayswater factory and Mr Westwood was working at the Springvale factory at the time

[35]T33, L9

18The relevant medical history seems to commence on 23 December 2017 when Mr Westwood consulted his treating doctor, Dr Li Yang.[36] At that consultation, Dr Yang noted that there had been two weeks of intermittent soreness over the back of the legs. It was noted the lumbar spine was non-tender and there was a full range of motion and full weight-bearing. Straight leg raising was to 30°. A CT scan of the lumbar spine was ordered. I pause there to note that the tendered notes of Dr Yang’s clinic show that prior to this consultation, there had only been one other consultation occurring on 30 July 2017.[37] At this stage, some six months previously, there had been no issue with back or leg pain. A CT scan was performed on 27 December 2017 of the lumbar spine.[38] At the L3-4, L4-5 and L5-S1 levels there was stenosis noted which the radiologist opined “may be neural compressive”.

[36]DCB 45

[37]DCB 46

[38]PCB 87

19On 31 December 2017, he consulted another treating doctor, Dr Stanley Chiang, at another medical centre. His presenting problem was noted to be elbow pain and he was also recorded as having “c/o neck pain with ?[sic]right arm numbness. S/b other doctors and had Ix”.[39]

[39]DCB 60

20On 2 January 2018, he returned to Dr Yang to review the lumbar CT scan.[40] I note there is no history recorded of work duties being involved in the presentation. At this time Dr Yang referred Mr Westwood to a neurologist, Dr Steven Ng.

[40]DCB 45

21After the Christmas break, he returned to work and worked until 5 January 2018. He ceased work completely on 10 January 2018. On 11 January 2018, he attended Dr Ng, a neurologist.[41] He certified him unfit for one week. He also ordered nerve conduction studies on a history of bilateral leg pain and numbness. These were normal.[42] He also ordered an MRI of the whole spine which was conducted on the same day. That recorded “broad-based disc bulges are present at L2/3, L3/4, L4/5 and a small protrusion at L5/S1”.[43] It concluded there was no evidence of lumbar neural compression.[44]

[41]PCB 45

[42]PCB 89

[43]        PCB 90

[44]PCB 90

22On 14 January 2018, he saw Dr Chiang. He had pain in the lower back and also elbow pain.[45]

[45]DCB 60

23On 15 January 2018, Mr Westwood consulted a chiropractor, Dr Thanh Nam Nguyen. He recorded “[f]ew months ago started having post neck P, stiffness and bilat[eral] ref post thigh and leg P… No recalled onset factor”.[46]

[46]DCB 63

24On 24 January 2018, he attended Dr Nguyen again.

25On 4 February 2018, he saw Dr Chiang. He complained of low back pain with sudden onset and it was noted that there was no known cause. Tenderness was noted at the L3/4 level.[47]

[47]DCB 60

26There is then a gap in his treatment. On 20 February 2018, he commenced seeing Dr Shirley Chu, a GP at the Mediscreen clinic.[48] Her note for that consultation records the following:[49]

“stated that he has low baxk [sic] pain for sometime, often triggered by labour work, he works as  forklift driver/steelworker, but sometimes need to help lifting heavy good, coming for second opinion re mx. clinically he has limited lumbar spinal move’t, and pain radiating along both sciatic nerves, however nil weakness or foot drop.”

[48]PCB 55

[49]        DCB 50

27She saw him over the next two weeks and trialled him on anti-inflammatories and Mobic to deal with the pain. This was not successful and on 9 March 2018, she referred him to Mr Myron Rogers, a neurosurgeon, for assessment. She continued to see him throughout March 2018 with ongoing back pain and she wrote light duties certificates for him, even though he was not attending work at this stage.

28He consulted Mr Rogers, neurosurgeon, on 6 April 2018.[50] He recorded that the main symptoms were pain in his legs early in the day. He gave a history that this pain had eased up recently and was currently less troublesome. Mr Rogers reviewed the recent MRI scan taken by Dr Ng and concluded that there was “no cord compression in the cervical or thoracic regions, and in the lumbar region there is mild degenerative change without any significant neural compression”.[51] He referred Mr Westwood onto the Epworth rehabilitation program.

[50]DCB 8

[51]DCB 8

29On 11 May 2018, he consulted Dr Chiang. He took a history of:[52]

“Patient presented with c/o lwo [sic] back pain. Patient has been working at a steel processing company. The job involved repetitively carrying objects, walking and lifting things etc. Recently started feeling pain in the low back”.

[52]        DCB 60

30He saw Dr Chiang on 13, 15, 20, 24, 31 May and again on 5 June 2018 complaining of back pain.[53]

[53]DCB 59-60

31He then returned to the care of Dr Chu, while continuing to see Dr Chiang. She was unhappy with his progress and on 5 July 2018, she referred Mr Westwood to Dr Tanya Yuen for a second neurosurgical opinion.[54]

[54]DCB 52

32He saw Dr Chiang on 11, 24, 28 June and 2, 22, 30 July 2018.[55]

[55]DCB 58-59

33He consulted with Dr Yuen on 25 July 2018. At that stage, she considered he had an unusual clinical presentation which did not relate to his lumbar spine. In particular, she noted that he continued to complain of pain and altered sensation in the upper limbs. She also noted that his lower back pain and left leg pain had resolved. She took a history that he had been using a walking stick for three months because of pain.[56] She considered it necessary to repeat the nerve conduction studies in the upper and lower limbs and arranged for an MRI cervical spine and further ultrasound and plain x-rays of the shoulders, in case there was pathology contributing to the arm pain.[57] Mr Westwood gave evidence that he never returned to see Dr Yuen, nor did he have those further investigations, as he did not feel she gave him any proper advice. Rather, he considered the advice from Mr Rogers, about rehabilitation through the Epworth, to be more beneficial and so he commenced at the Epworth rehabilitation clinic.[58] He continued sporadically to see Dr Chu after this time.[59] He continued to see Dr Chiang on 10, 14, 19 August and thereafter.[60] The medical history can be put to one side at this stage. Broadly, Mr Westwood has continued on with acupuncture, swimming and some physiotherapy since this time.[61] He has not had any surgical intervention, as Mr Rogers advised against it.[62] He remains on pain medication, though the details of this are in dispute.

[56]PCB 48

[57]DCB 13

[58]T52, L6-10

[59]DCB 52

[60]DCB 57-58

[61]PCB 19, at paragraph [24]. See also PCB 22, at paragraph [3]

[62]DCB 8. See also T52, L6-10

The position of the parties at trial

34In mid-May 2018, Mr Westwood lodged a WorkCover claim.[63] That was rejected. Mr Westwood has not litigated that dispute. Rather, he lodged a serious injury application which was rejected. Thereafter, Mr Westwood issued this Originating Motion seeking a determination of serious injury. When the matter was first listed for trial, in May 2021, the Defendant sought to rely on the affidavit material of the various workers set out above, namely Mr Bow, Mr Campbell and Mr Fogarty. Mr Westwood sought an adjournment of the trial date in order to provide affidavit material in answer to that of these three employees of Malouf. His Honour Judge Carmody granted the adjournment. At the time of the adjournment, it was well known to the parties that in issue were the exact work duties that Mr Westwood performed, as this went to causation and also the issue of credit. The usual course, in such a situation in this Court, is that the rejected WorkCover claim would be challenged and in due course the subject of proceedings brought by pleadings so that the factual dispute regarding the work duties and their contribution to his injury, if any, could be resolved. This litigated claim and the Originating Motion then be heard together with all issues properly ventilated and the witnesses cross examined. In this case the Plaintiff did not choose this course and the only issue before the Court is whether there should be serious injury certification. I have set out this background because in this case, Mr Westwood did not seek to cross examine any of the Defendant’s lay witnesses. Mr Richards explained that this was for two reasons. The first was that even on their evidence, Mr Westwood could establish the work duties were physically demanding and involved a degree of repetition. Secondly, when the Defendant pointed out that this still left the issue of whether Mr Westwood was a reliable witness given the stark contrast between Mr Westwood’s evidence and that of the Defendant’s witnesses, Mr Richards submitted that in serious injury applications there should not be a full trial on causation and hence no cross examination of the Defendant’s witnesses was required. While it can be accepted that in the majority of cases there will be no trial on causation, the Court has made it clear that where there is to be a substantial dispute over causation based on factual matters then those matters should be ventilated in the usual manner; that is by the cross examination of relevant witnesses.[64] In that circumstance, with the Plaintiff making the forensic decision not to litigate the rejected WorkCover claim and deciding not to cross examine the Defendant witnesses, the Court is left having to assess the evidence in its current form.

[63]PCB 42

[64]Serious Injury Applications Practice Note PNCLD 3-2020, at paragraph [5]

35Mr Westwood’s case was put in a deceptively simple manner: that due to the physical demands of his work, for over 20 years, he had aggravated the degenerative changes in his spine, rendering them symptomatic in December 2017. As a result, the impairment consequences of that aggravated spinal condition were “serious” within the meaning of the WIRCA.

36The central planks in the acceptance of Mr Westwood’s case then, is the acceptance of his evidence that:

i.The work was physically demanding; and

ii.The consequences are as he describes.

37Turning to consider whether to accept Mr Westwood’s evidence. I record my finding that I considered his evidence to be contradictory, inconsistent, at times vague and overall to be unreliable. I make this finding accepting the submission that Mr Westwood was an unsophisticated person who attempted to do his best. However, even with this acknowledgement and context to his evidence I am unable to accept it. This finding affects both aspects of his claim. It affects my findings as to causation and, though it is not necessary to go this far, my findings as to whether or not his low back injury has consequences which could be described as more than significant or marked.

38Starting with the work duties. It was put to Mr Westwood in cross examination that his affidavit evidence as to the work duties was contradicted by Mr Campbell, Mr Bow and Mr Fogarty. Ms Manova specifically put those sections of the affidavits of each witness which contradicted Mr Westwood’s evidence. His response was invariably that each of these witnesses was lying.[65] He was specifically taken to his evidence about cutting steel plate and having to bend over for 5 to 6 hours at a time on the ground. He confirmed in oral evidence that he could take a whole day to perform this task and that it was performed at about 4 inches off the ground.[66] He acknowledged that such a task was difficult work. But it was then pointed out that he had not deposed to these matters in his first affidavit and it only emerged in his second affidavit in response to the Defendant’s affidavit material. Given the issue of the heavy nature of his work was so critical to his claim and this was known, given his claim had been rejected, it is completely unclear why the first affidavit made no mention of this matter, which it was accepted was a strenuous, physically demanding task. It would have been an obvious inclusion in the first affidavit. It gave the impression that the first affidavit was incomplete. It gave the supplementary affidavits the air of attempting to put matters simply to remedy perceived deficiencies in the case.

[65]T21, L10 in relation to Mr Campbell. See also T22, L18-19 in relation to Mr Bow and T24, L23-26 in relation to Mr Fogarty.

[66]T28, L20-24

39As to inconsistency Ms Manova, put to Mr Westwood that he had deposed that in mid-December 2017, he had developed leg pain because he had to step over things at work.[67] It was put to him that he had never reported this to anyone at work. He responded by stating that he had mentioned this leg pain.[68] When pressed as to who he had reported this to, he nominated Dean Campbell and another colleague, ‘Travis’, from the Bayswater premises. As mentioned previously, Travis is from the Bayswater plant and yet he was working at the Springvale factory when the pain came on. As to when this complaint was made, he stated he could not remember as he did not have his papers. When pressed further, he stated that he had made “little notes” regarding this. A call was made for the “little notes”. As set out above, despite the luncheon break and overnight to produce the documents, the only thing produced was a diary from 2001 to 2005 which was completely irrelevant. In fact, after luncheon, Mr Westwood gave evidence that despite not being able to find the “little notes” he recalled that he had told Dean Campbell and ‘Travis’ at the Bayswater factory of his leg troubles. He then went further and said that at this time (mid-December 2017), he was having trouble sitting down to eat lunch. It was pointed out that none of this was in his affidavit material and that in fact it was only in his last affidavit that he deposed to back pain in mid-December 2017 and that he had mentioned it to Mr Bow.[69] There was never a mention of back pain in the first two affidavits.

[67]PCB 18, at paragraph [15]. See T35, L16-18

[68]T35, L20-28

[69]PCB 37, at paragraph [5]

40I observed Mr Westwood closely during this exchange and took into account the limitations imposed by the fact this was a remote hearing by audio visual link. I found that opportunity to be invaluable and it aided my assessment of his evidence greatly. An assessment of the evidence and the cross examination leads me to conclude that there was a real confusion in Mr Westwood’s recall of events and when certain things occurred. Here for example, the treating doctor notes record that at the first attendance on 23 December 2017 there was a complaint of leg pain, particularly into the back of the legs, but that the lumbar spine was non tender. Such leg pain had been present for the last 2 weeks.[70] There does appear to be some consistency about the onset of the pain and its location, to the back of the legs. The fact that there was also a CT scan of the lumbar spine[71] ordered immediately does also suggests that there was suspicion that it was involved in the presentation. The Defendant focused on the fact that Mr Westwood, in his affidavit, had nominated the stepping over of things on the floor of the factory as promoting this problem, however, he explained that he didn’t report this to the treating doctor at the initial presentation as he did not think there was any work relationship to the onset of his symptoms. The Defendant asked rhetorically, if he thought there was no work relationship to the onset of his injuries at that time such that he swore in his affidavit “I did not mention work as being the cause of it [the back pain] because I just didn’t think that my normal job could have been [the] cause because nothing unusual had happened.”[72] how could he have given evidence in court that he had told Dean Campbell and Travis that stepping over things was causing him leg pain?[73]

[70]DCB 45

[71]PCB 87

[72]PCB 37, at paragraph [5] (emphasis added)

[73]T35, L20-28

41Mr Westwood had no convincing answer for that proposition. However, it must be understood that Mr Westwood is not a doctor and his symptoms may not have been entirely diagnostic for one cause which he would necessarily attribute to work. I do not understand the cross examination to suggest otherwise, rather, it was focused on why in his affidavit he could say he thought it was not work related and yet in cross examination say otherwise and with such detail.[74]

[74]T36, L20 – T37, L6

42The evidence and the way it was given was unsatisfactory. On the Plaintiff’s case he did know he had some back and leg pain in December 2017. He mentioned that to co-workers, for instance Mr Bow, who deposes of being told of such pain which was attributed to a holiday in New Zealand.[75] But the evidence under cross examination went a step further and was to the effect that he did think there was a work cause. I reject that evidence as an attempt to bolster the relationship between work and the onset of symptoms. I do so in part because of the manner of the giving of the evidence. It was slow and hesitant. It gave the impression of uncertainty. Then when pressed, the presence of the “little notes” to support his version was made known. No such notes were produced. This seemed a contrived effort to support the assertion made under cross examination. Ms Manova continued to press Mr Westwood on this apparent inconsistency. He again confirmed that he had told work colleagues that his leg and back pain may have been caused from stepping over things.[76] When the contradiction was again brought to his attention, he simply said that he was confused.[77]

[75]DCB 82, at paragraph [10]

[76]T40, L18-21

[77]T40, L30-31

43In the same vein, Mr Westwood was taken to the notes of his treating doctor, Dr Chiang, on 4 February 2018.[78] While Dr Chiang recorded back pain of sudden onset, he queried the cause. The same thing regarding Dr Ng was put, as he had recorded “nil trigger”, indicating uncertainty as to the cause of the back and leg pain.[79] It was put to Mr Westwood that if the cause was work, specifically stepping over things, as he had given evidence about, then he would have told Dr Chiang or Dr Ng this.[80] In response, Mr Westwood said that he had told Dr Chiang that his injuries were through work.[81] This was a very specific recollection and given forcefully. It does not correspond to the import of the doctor’s note and is in fact inconsistent with it.

[78]DCB 60

[79]T45, L29

[80]T43, L2-4

[81]T43, L4-5

44This contrasts with the next section of cross examination, in which the history given to Dr Chiang on 11 May 2018 was put.[82] It is to be noted this history was given on 11 May 2018, only 1 day after a WorkCover claim form was signed. In that form, Mr Westwood attributed his injuries to “[h]eavy and repetitive and strenuous lifting throughout the course my of employment”.[83] He was asked whether he had solicitors help him fill out the form given the specific, somewhat legalistic formulation of the words. He replied that “I just can’t remember. It’s so long ago.”[84] This contrast between remembering precisely what he said to Dr Chiang – namely a history of work contribution to his injuries - and yet professing not to recall the filling out of the claim form identifying work as the cause is another example of inconsistency in his evidence.

[82]T43, L26 – T44, L9

[83]DCB 7

[84]T39, L1-3

45A further example of the inconsistency in his evidence arose when a medical form of Dr Nguyen was put to Mr Westwood. The form was a medical questionnaire dated for 27 May 2018. In it, Dr Nguyen had written that “due to the chronic nature of these subluxations, it is difficult to know the causes. The patient did mention tripping at work did aggravate his back and leg pain”.[85] Mr Westwood quickly pointed out that such a history was wrong and the word “stepping” instead of “tripping” should have been used.[86] I formed the view that this evidence was being given to bolster the connection of work to the development of his injuries. This is because he had previously had tripping episodes at work in 2014 and made claims in respect of the injuries caused, so the history as recorded was entirely correct. It is also inconsistent with the WorkCover claim form just mentioned, which he had completed some 2 weeks prior, which mentioned “heavy and repetitive lifting” as the cause of the injuries and mentioned nothing about “stepping” over things as a cause of the injuries.

[85]DCB 10

[86]T50, L1-9

46In summary, I find that the evidence given by Mr Westwood was inconsistent and unreliable as to whether or not he reported feeling back and leg pain at work in mid-December 2017 caused by work duties. However, it is undoubted that he did report having leg and back pain in mid-December 2017 to his work colleagues. This is borne out by the evidence of Mr Fogarty in his affidavit,[87] and Mr Campbell[88] which corroborates the complaints of pain in these regions. Whether he considered such pain was caused by work or not is of only marginal relevance in determining whether work was in fact a significant contributing factor to the development of such pain. What is more important in that assessment is a consideration of what work duties he performed, the pathological findings as to the cause of his pain and a consideration of the medical opinions regarding that cause.

[87]DCB 100, at paragraph [13]

[88]DCB 79, at paragraph [10]

47Before that can be dealt with, an assessment of the video surveillance shown in Court needs to be made. This informs my ability to accept the evidence of Mr Westwood.

48Briefly, Mr Westwood gave evidence that as a result of his back and leg injuries he was reliant on two walking sticks in the morning and then one walking stick later in the afternoon as his back condition eased up. He asserted that his walking capacity was reduced to 100 metres or so of a “short shuffling gait”.[89] A statement he had made to doctor Dr Barmare.[90]

[89]DCB 17

[90]DCB 17

49The Defendant then showed video surveillance. The first was from 24 June 2020 at 10:48am.[91] It depicted Mr Westwood walking from a service station with a coffee and into his car. This was performed in a normal manner. He then parked the car and alighted with empty shopping bags in his hand. He walked what appeared to be several hundred metres at a normal pace to a shopping centre. He then presumably did some shopping and with those full bags walked several hundred metres back to his car. When asked in cross examination whether he agreed that was him walking normally, he replied that he was walking with a limp.[92] When asked why he had no walking stick, he replied that he was only shopping locally. I find having watched this video closely, that it depicted Westwood walking normally with no visible limp. He did not walk with a slow shuffling gait and he walked more than 100 metres. I find this surveillance video is completely at odds with Mr Westwood’s evidence of the extent of his impairment.

[91]Exhibit D6 – Video surveillance of 24 June 2021.

[92]T69, L3

50The second relevant video shows events of 19 June 2020 at about 8:56am.[93] On this day, the Defendant had scheduled an appointment with a medico-legal practitioner Dr Barmare, an orthopaedic specialist. Dr Barmare recorded Mr Westwood’s impairment in the following terms:[94]

“In the daytime he uses one walking stick because he feels unstable. He has had a pinching mainly in the left foot and says after walking about 100 meters he has a claudication type of pain and he has to stop”.

The video records him after the appointment walking, as his Counsel conceded in closing, over 500 metres or so at a reasonable pace. During this time, he does have a walking stick but does not rely on it. In cross examination, he explained that in order to have such function, he woke up at 3-4am and took tablets to get him through these morning appointments.[95] This is not corroborated in any medical report or even deposed to in any affidavit.

[93]Exhibit D2 – Video surveillance of 19 June 2020

[94]        DCB 27

[95]T71, L8-13

51Other video was also shown of him on other days moving about his car and shopping centres without reliance on the walking stick (let alone two walking sticks) in the mornings and at a normal pace. At times a limp could be seen. The video surveillance does not support Mr Westwood’s version of the degree or type of impairment he suffers. It is inconsistent with the evidence he gave in Court and in his affidavit material. I find it harms his credit and means that I cannot rely on his evidence without some degree of corroboration.

52Having set out the above, I now turn to make findings as to the dispute regarding the work duties. I find that the work duties are largely as deposed to by Mr Fogarty and Mr Campbell. I find that Mr Fogarty worked essentially the same position, as a storeman, as Mr Westwood. He was employed in this position for many years and can speak intimately about the tasks. He was also employed at the Bayswater factory and regularly went to the Springvale factory so he was conversant with the systems of work at both places. Mr Campbell worked at the Springvale factory and can speak knowledgably about its workings. As the manager of that factory, he had to understand Mr Westwood’s work. Both of these employees gave evidence that steel over 15 kg was lifted by crane, which was also supported by Mr Bow.[96] I find on this evidence, and in preference to the contradictory evidence of Mr Westwood, that he did not lift steel in excess of 15kg. I make these findings given the evidence of the 3 worker witnesses was challenged only to the extent of Mr Westwood’s contradictory accounts and his labelling this evidence a “lie”. Given the real inconsistency and unreliability of Mr Westwood’s evidence, I do not accept it. The preponderance of evidence favours my findings to accept the evidence given by Mr Campbell, Mr Fogarty and Mr Bow. However, as Mr Richards pointed out, and which submissions I accept, the fact that weights over 15 kg were not lifted does not make the work not physical or demanding. Weights under that amount may still meet this classification and still be considered causative of the aggravation injury Mr Westwood complains of. This is a matter properly the subject of expert opinion. I will come to that shortly. However, I need also make findings about whether such work was repetitive as asserted by Mr Westwood.[97] I find it was not repetitive work in the sense of being unremitting lifting and moving of steel weight by hand but rather, this was an occasional feature of his work. This seems implicit in the job description of the storeman’s task as described by Mr Fogarty who described it in the following terms:[98]

“In my role as storeman I never had to lift steel regularly as there was a crane available to do so. The crane was overhead and could travel to all parts of the workshop. There would be occasions when I would lift steel by hand but it was never anything heavier than 15 kilograms and usually just small off cuts that came off after cutting, usually only half a kilo to a few kilos or so. We used the crane for lifting everything else. Because we used the crane the work was not heavy and the duties we performed varied from day to day.”

[96]DCB 79, at paragraph [7] of Dean Campbell’s Affidavit. See also DCB 99, at paragraph [6] of Sherard Fogarty’s Affidavit. See also DCB 82, at paragraph [5] of Greg Bow’s Affidavit.

[97]PCB 17, at paragraph [9]. See also PCB 26, at paragraph [12]. See also T21, L29 – T22, L3

[98]        DCB 99, at paragraph [6]

53I accept that description accurately reflects the work performed and the frequency with which tasks were performed, in contradiction to Mr Westwood’s evidence.

54As to the cutting of steel plate. I prefer the evidence of Mr Bow and Mr Fogarty to that of Mr Westwood. First, I find this work was done on a table at waist height and not on the ground.[99] Second, I find it was done for at most 45 minutes at a time and not 5-6 hours once per week, as Mr Westwood deposed.[100] To the extent that it could be said that Mr Fogarty worked at the Bayswater factory and not the Springvale factory, where Mr Westwood was located from February 2017, the evidence does not suggest there was great difference in the work performed between the two factories. Further to that, Mr Bow worked across both factories and he did not depose to any great differences in work practices. Neither did Mr Westwood, who simply gave evidence that the evidence of Mr Fogarty on this point was a lie. Given the unreliability of Mr Westwood’s evidence I prefer the evidence of Mr Fogarty and Mr Bow.

[99]DCB 99, at paragraph [11]. See also DCB 82, at paragraph [6]

[100]DCB 99, at paragraph [11]. See also DCB 82, at paragraph [7]

55As to the requirement of having to step over things on the factory floor, for reasons set out above, I do not accept Mr Westwood’s evidence and find that there was no cluttering of the floor requiring him to repeatedly step over things.[101]

[101]DCB 99, at paragraph [10]

56Having made those findings, it now falls to consider the medical evidence said by Mr Westwood to support a finding that the work he performed was a cause of the aggravation of the degenerative changes in his lumbar spine. Perhaps the most relevant material is from the neurosurgeons. Mr Rogers, who saw Mr Westwood in April 2018 and was presumably told of the work history similar to that given to Dr Chu of working with steel, simply noted that there was mild degenerative change.[102] He ventured no real opinion as to causation and opined that while there was no significant cord compression he left open the possibility of there being some degree of compression.[103] Dr Yuen’s view was that the condition was not related to the lumbar spine at all.[104] Dr Ng, a neurologist, did not venture an opinion on causation, being unaware of history given subsequently of the work duties.[105] Of the treating doctors, Dr Nguyen was uncertain of the cause.[106] Dr Chu was more forthright, considering his work had a serious adverse effect on his back condition.[107] Her history of February 2018 is consistent with the work duties I have found.[108] Similarly, Dr Chiang shared this view.[109] However, it must be noted that this opinion was given on the basis of a history which was of “repetitive lifting and carrying heavy objects”. As I have found there was not repetitive lifting, but rather occasional lifting, this opinion must be treated with some caution. I note that while he also factors in “heavy” lifting, this does not mean he was only referring to weights over 15 kg. That is not specified in his history or his reporting. It may well be the case that lifting weights of 10 kg classify as being heavy in his reporting. I cannot discount his opinion on that basis.

[102]DCB 8

[103]PCB 44

[104]PCB 48

[105]PCB 46

[106]PCB 50

[107]PCB 55

[108]DCB 50

[109]PCB 57

57Turning to the Plaintiff’s medico-legal material, the most relevant is that from Dr Akhil, a neurosurgeon. He has provided three reports. The first records the mechanism of injury as stemming from “repetitive heavy lifting as well as forklift driving, bending and picking heavy objects from the floor”.[110] He considered the 2018 MRI showed a trapping of the L5 nerve root at L5/S1 level.[111] He diagnosed aggravation of lumbar spondylosis caused by Mr Westwood’s work with Malouf.[112]

[110]PCB 64

[111]PCB 65

[112]PCB 65. See also PCB 66

58In Mr Rowe’s report of 16 February 2021, he recorded “[d]uring the course of his employment he did a lot of steel cutting, a very heavy job. This work was conducted on the floor.”[113] He considered the presenting problem shown in the MRI was a disc protrusion at L5/S1 effecting the S1 nerve root brought on by work at Malouf.[114] This opinion on causation cannot be accepted, as it proceeds on an entirely wrong history, has a view of the MRI not supported by the neurosurgeons, Mr Rogers,[115] Dr Yuen[116] and Dr Akhil[117] and is at odds with the radiologist’s findings.

[113]PCB 77

[114]PCB 80

[115]DCB 8

[116]PCB 48

[117]PCB 65

59The first medico-legal report the Defendant called in aid, was that of Dr Barmare of 4 June 2018.[118] It is to be noted that this report occurs very close in time to the initial onset of pain. Dr Barmare also conducted an assessment after the lodgement of the WorkCover claim and issues of causation were very much in dispute. For these reasons his reporting assumes real significance. The history he took was that of Mr Westwood performing duties as a storeman involved in cutting steel, who began to get leg pain in late 2017. At times, it was recorded he had to lift about 20 kg but otherwise lifting was done with a crane.[119] He recorded pain in the shoulders and upper limbs but that the low back pain had improved. He walked with a short shuffling gait and had a walking stick.[120] As to causation, because of the involvement of the shoulder symptoms, Dr Barmare was not “really sure” that his condition was related to work.[121] In his next report of 19 June 2020,[122] he was given all the treating doctor notes and the radiological examinations. On clinical examination, there were no inconsistencies recorded.[123] He was categorical, however, in stating that the lumbar back pain was not work related but rather, a progression of the natural condition of lumbar canal stenosis.[124]

[118]DCB 14

[119]DCB 16

[120]DCB 17

[121]DCB 19

[122]DCB 24

[123]DCB 28

[124]DCB 29

60When looked at overall, I accept the opinion of Dr Barmare. It is not contradicted by Mr Rogers. To the extent that it is inconsistent with Dr Akhil, his opinion is based on an incorrect history. In a situation where the radiology does not highlight a specific injury and there is no specific work injury, the history of the work duties is a significant factor in the ultimate opinion reached. If the correct history of work duties was put to Dr Akhil this may have led to a different opinion. I note it was not.

61As a result of the above, I deny Mr Westwood’s application for a determination that he has sustained a serious injury within the meaning of the WIRCA.