Zahabi v Crown Posture Bedding Pty Ltd
[2020] VMC 12
•3 JUNE 2020
IN THE MAGISTRATES’ COURT OF VICTORIA
AT LOCATION
WORKCOVER DIVISION
Case No. K10309967
| MOHAMMAD ZAHABI | Plaintiff |
| v | |
| CROWN POSTURE BEDDING PTY LTD | Defendant |
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MAGISTRATE: | MAGISTRATE M J RICHARDS |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 2, 3, 4, 5, 6, 9, 10 & 11 MARCH 2020 |
DATE OF DECISION: | 3 JUNE 2020 |
CASE MAY BE CITED AS: | ZAHABI V CROWN POSTURE BEDDING PTY LTD |
MEDIUM NEUTRAL CITATION: | [2020] VMC012 |
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CATCHWORDS – Workers Compensation - Initial acceptance of back injury with specific date of injury - Alteration in rate of weekly payments due to termination of employment because of misconduct - Rejection of back injury throughout course of employment - Rejection of various requested medical and like services - Rejection of secondary psychological injury - Termination of weekly payments and medical and like services - Liability revisited - Credit issues - Workplace Injury Rehabilitation and Compensation Act 2013.
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APPEARANCES: | COUNSEL | SOLICITORS |
| For the Plaintiff | Mr C Morshead | Ryan Carlisle Thomas |
| For the Defendant | Mr A Middleton | Minter Ellison |
HIS HONOUR:
INTRODUCTION
In this proceeding, the plaintiff is seeking weekly payments at the rate appropriate for no current work capacity from 26 May 2018 (when weekly payments were reduced) to 29 May 2019 (when weekly payments were terminated), with such weekly payments to continue together with continuing medical and like expenses from 29 May 2019 in accordance with the Workplace Injury Rehabilitation and Compensation Act 2013 (the WIRC Act). The plaintiff is also seeking approval for various requested medical and like expenses which have been rejected by the defendant.
The plaintiff completed a claim for compensation on 23 April 2018 with respect to a lower back injury sustained at work on 23 April 2018 [Exhibit B].
In the claim for compensation, the plaintiff stated that he had ‘low back pain (backache)’. The plaintiff stated that the pain occurred ‘while lifting and moving a special bed head, I hurt my lower back as it was very heavy and had a special size (very big size)’. The plaintiff further stated that he was ‘moving, lifting, making bed heads’.
The first claim was accepted on 21 May 2018 by Xchanging Integrated Services Victoria Pty Ltd, the defendant’s Workcover Agent (Xchanging) [Exhibit Z].
On 8 June 2018 Xchanging reduced the plaintiff’s entitlement to weekly payments of compensation as of 26 May 2018 pursuant to section 185(d) of the WIRC Act.
The plaintiff completed a second claim for compensation on 19 October 2018 alleging that the back injury had arisen over the course of his employment [Exhibit L].
Xchanging rejected the second claim for compensation on 21 November 2018.
The plaintiff and his various treating doctors have since made several requests and/or claims for medical and like expenses relating to the back injury and/or consequential injuries.
There are eight separate decisions of Xchanging being challenged by the plaintiff [The eight notices are contained in exhibit M]:
(a)the decision of 8 June 2018 in which Xchanging reduced the plaintiff’s weekly payments as of 26 May 2018 on the basis that his employment had been terminated on 24 May 2018 due to alleged misconduct;
(b)the decision of 21 November 2018 in which Xchanging rejected the plaintiff’s claim for compensation dated 19 October 2018 on the basis that it related to his previous claim for compensation dated 23 April 2018;
(c)the decision of 9 April 2019 rejecting the request of the plaintiff’s GP, Dr Iman Tahmasebi, dated 17 December 2018 for the provision of Cialis medication. The rejection was on the basis that such treatment was not reasonable and/or necessary given the nature of the plaintiff’s work-related injury and it was also for a condition unrelated to the work-related injury;
(d)the decision of 9 April 2019 rejecting the request of the plaintiff’s gastroenterologist, Dr Ian Fok, dated 27 March 2019 to undertake a gastroscopy and colonoscopy. The request was rejected on the basis that the surgery was for a condition not related to the work-related injury and the plaintiff’s condition predated the onset of the plaintiff’s back injury;
(e)the decision of 10 April 2019 rejecting the request of the plaintiff’s physiotherapist, Ms Jane Boland, dated 1 March 2019 for a gym and swimming program. The request was rejected on the basis that the program was not reasonable and/or necessary for the work-related injury;
(f)the decision of 23 April 2019 rejecting the plaintiff’s claim for compensation in relation to a secondary psychological injury. The rejection was on the basis that the plaintiff had not sustained a work-related psychiatric condition;
(g)a further decision of 23 April 2019 rejecting a request for alopecia treatment due to the plaintiff’s stress associated with his back problem. The rejection was on the basis that the plaintiff had not sustained a work-related psychiatric condition;
(h)the final decision of 23 April 2019, where it was determined that the plaintiff’s entitlement to weekly payments and medical and like services would cease as of 29 May 2019. The termination of compensation was on the basis that the plaintiff was not incapacitated for work, any incapacity for work was not materially contributed to by an injury arising out of or in the course of employment and the plaintiff no longer required any medical treatment for the injury.
Despite the initial acceptance of the claim for compensation dated 23 April 2018, it became apparent during the proceeding that the defendant was also wishing to revisit the issue of liability. Issues of credit were raised by the defendant.
EVIDENCE
The plaintiff, Mohammad Zahabi, commenced employment with the defendant, Crown Posture Bedding Pty Ltd, on 14 July 2015 as an upholsterer in the upholstery/bedhead section.
The plaintiff was promoted to supervisor in approximately 2017. The plaintiff replaced John Steele as the supervisor. Mr Steele continued working for the defendant. The plaintiff became his supervisor.
Upon his promotion to supervisor, the plaintiff’s evidence was that he continued working as an upholsterer. In addition, the plaintiff also assisted other co-workers in the upholstery/bedhead section and supervised the team. The plaintiff also gave evidence that a lot more of his work involved upholstering the larger and more difficult bedheads which he would usually do on his own.
The plaintiff gave evidence that his work duties included the following:
(a)manually moving bedhead frames from pallets onto trolleys one by one. A forklift would bring the pallets from the loading bay to the bedhead section. The number of bedhead frames on the pallets differed from pallet to pallet. The bedhead frames were different sizes depending on whether they were for a single, double or queen bed. Moving the bedhead frames to the trolleys would include lifting and carrying them by himself;
(b)manually moving bedhead frames from the trolleys onto racking near the worktables. This would include lifting and carrying the bedhead frames by himself;
(c)using a staple gun to add parts to the bedhead frames while they were on the worktable. The plaintiff said that this required him to bend down while doing this, including reaching under the bedhead frame;
(d)manually flipping bedhead frames over while working on them at the worktable. This could occur up to ten times for each individual bedhead frame;
(e)manually moving the bedhead frame from the worktable to the railing at the end of the production process. This would include lifting and carrying the bedhead frames by himself.
The plaintiff said that the bedhead frames ranged in size and shape and that their weight would vary from approximately 10kg to 80kg. The plaintiff stated that the bedhead frames would generally be heavier by the end of the production process, after parts had been added to it. The plaintiff said, as the supervisor, he always worked with the heavier bedframes.
Co-workers in the upholstery/bedhead section included Parviz Zahabi (the plaintiff’s brother), Javad Dinakani, Claudio Zubicueta and John Steele.
Apart from John Steele, all the plaintiff’s named co-workers gave evidence.
Parviz Zahabi gave evidence that he worked for the defendant as an upholsterer and that he worked with the plaintiff, who was his supervisor, in the upholstery/bedhead section in 2018.
Parviz Zahabi said that the work duties were difficult and involved moving and placing bedhead frames and working on them. The bedhead frames weighed somewhere between 15kg to 70kg.
Parviz Zahabi said that he, and the plaintiff, would normally work on the larger and heavier bedhead frames.
Mr Dinakani gave evidence that:
(a)the bedheads could be quite heavy, weighing up to 70kg to 80kg;
(b)he would generally get a co-worker to assist him in handling heavier bedheads, but other co-workers could handle larger bedheads by themselves, including lifting it by themselves onto a worktable. Mr Dinakani said that there was a distinction between lifting and tilting a bedhead frame onto the worktable and that it was easier to tilt the bedhead frame;
(c)during overtime work, a single worker would sometimes manually handle a bedhead by themselves by lifting it onto a worktable where there were no other co-workers available to assist them;
(d)he had witnessed the plaintiff lift a large bedhead on his own onto a worktable on occasions;
(e)workers would flip and move bedheads around themselves while working on it, although Mr Dinakani would get other workers to help him with heavier bedheads;
(f)he would not necessarily pay attention to the plaintiff during the day, so could not say if he would bend or not while performing his work;
(g)the plaintiff and Parviz Zahabi would normally work on the larger and heavier bedhead frames
Claudio Zubicueta said that he commenced work for the defendant in April 2018. Mr Zubicueta gave evidence that, at times, the work in the upholstery/bedhead section required workers to bend down when attaching parts to the bedhead frames. He also said that workers would manually flip smaller bedhead frames while working on them at the worktable.
Mr Zubicueta said that there was no bending required by a worker when using the staple gun on the bedhead frames because special stools were used by workers to sit on.
With respect to the work duties in the upholstery/bedhead section, Dean Bubanaras and Helena Daniels Al-Gharaiban also gave evidence which, in part, touched on the work duties.
Mr Bubaranas was the Operations Manager for the defendant and had worked for them for 13 years. Mr Bubaranas’s parents are the company directors of the defendant.
Mr Bubaranas said that, after the plaintiff became the supervisor in the upholstery/bedhead section, the plaintiff would spend about 30% of his work duties supervising staff and about 70% of his work duties building bedheads.
Mr Bubaranas said the normal way to take a bedhead frame from the racking to the worktable was as follows:
(a)the bedhead frames were awkward to manoeuvre. The weight of the bedhead frame would be on the ground. The worker would stand the frame on its side and push it towards the worktable;
(b)the worker would then lean the bedhead frame against the worktable and lever it up;
(c)most of the weight of the bedhead frame would be on the worktable;
(d)there would not be any direct lifting.
Mr Bubaranus said that two workers would normally manoeuvre the larger bedhead frames from the racking to the worktable.
Mr Bubaranus said that there was a stool to sit on when using the staple gun on the bedhead frames. In cross-examination he did say that there was some bending involved in using the staple gun.
Mr Bubaranus gave evidence that the bedhead frames ranged in weight from 10kg to 80kg.
Ms Al-Gharaibah gave evidence. Ms Al-Gharaibah said that she was employed by the defendant in the sewing section and did not normally work in the upholstery/bedhead section. She said that she started work in February 2018. Mrs Al-Gharaibah said that she did not directly see how many bedheads each individual team member made. Ms Al-Gharaibah said she occasionally assisted in the upholstery/bedhead section but only worked on the smaller to medium sized bedhead frames. She said that she did not work on the heavier bedhead frames.
Ms Al-Gharaibah said that she could not say how the plaintiff moved the bedhead frames during the day. She said that the heavier bedhead frames were ‘very heavy’ and that a worker would need help to lift them.
Mr Bubunaras said the plaintiff had been promoted to the role of a supervisor in 2017 because he had previously performed well in his job.
Melina Antoniadis, an employee of the defendant who worked in HR, Administration and Accounts also gave evidence to this effect.
The plaintiff gave evidence that he had not been given any warnings in relation to his work performance before injuring his lower back.
Whilst Mr Bubunaras and Ms Antoniadis said that there had been concerns at the work output of the bedhead team under the supervision of the plaintiff, they both said that no formal steps had ever been taken in that respect against the plaintiff during the period of his employment.
With respect to the work output of the bedhead team whilst he was the supervisor, the plaintiff denied ever intentionally getting workers to slow down production.
Mr Dinakani gave evidence that the only reason he had ever been told to slow down at work by the plaintiff was to make sure there was enough work for the rest of the week.
In any event, Mr Dinakani said that workers in the upholstery/bedhead section should not rush their work too much as it could affect the quality of the product for the customers.
Mr Dinakani said that he did not raise any issues about the rate of work with the defendant until after the plaintiff’s employment had been terminated. Mr Dinakani said that he was then approached by management and asked about the work rate whilst the plaintiff was the supervisor.
Mr Dinakani said that, apart from one ‘little problem’ with the plaintiff in the first week of his employment, he had no other issues with the plaintiff during his employment.
Mr Zubicueta gave evidence that he never reported any concerns about the plaintiff to management, prior to the termination of the plaintiff’s employment.
The plaintiff said that he sustained an injury to his lower back at work on 23 April 2018.
The plaintiff gave evidence that he had a specific order for a ‘special’ bedhead which was of an awkward and large size and bigger than a king-size bedhead. The plaintiff said that he later asked his brother, Parviz Zahabi, to take a photo of the customer order which referred to the bedhead he was working on. The order was dated 26 March 2018 [Exhibit I].
The Plaintiff said that after working on this order in the morning of 23 April 2018, his back started to hurt. He said he took some Panadol and continued working. However, as the day went on, the plaintiff said that his back pain worsened, leading to radiating pain and shaking in his legs. The plaintiff said that the pain was very different to other times. The plaintiff said that, at one point, his brother and another worker saw him and observed he looked extremely pale.
The plaintiff said that he stopped work just before 1.30pm as he was not well and needed to go home. He sent a text message to Mr Bubunaras and Darren Paone (another manager of the defendant) at 1.25pm stating the following:
Unfortunately I got back ache because I lift a heavy frame and I can’t continue to work today. I’m going to see a doctor. Thanks. [Exhibit D].
The plaintiff said that Mr Bubunaras was not at work on 23 April 2018. He said Mr Paone was at work and he could see him in his office from the factory floor. The plaintiff said that Mr Paone did not come out and see him when he sent him the text message.
The plaintiff said that he had no choice but to leave and go home because of the pain. The plaintiff said that he told his team that he was going home. He said he also told the supervisor in the base section and spoke to Ms Antoniadis in the office. The plaintiff said that another secretary in the office would have heard what he said to Ms Antoniadis.
The plaintiff said that he got into his car and started to drive home but had to stop a few minutes later as he could not drive any longer. The plaintiff said that he rang his parents who came and picked him up.
The plaintiff later attended his GP, Dr Iman Tahmasebi, at the Sunshine City Medical Centre. The plaintiff said that he told Dr Tahmasebi about his symptoms. Dr Tahmasebi told him that he needed a scan and to rest from work for a week. The plaintiff said that Dr Tahmasebi provided him with a WorkCover claim form and a WorkCover certificate of capacity [Exhibit A]. Dr Tahmasebi also arranged for the plaintiff to undergo a CT scan of the lumbar spine. The plaintiff gave evidence that he forwarded the certificate and referral for the CT scan by text to Mr Paone later that night [See exhibit D].
The plaintiff said that he initially asked Dr Tahmasebi for a normal certificate as he did not want to use workcover. The plaintiff said that Dr Tahmasebi started to give him a normal certificate but Dr Tahmasebi then decided to give the plaintiff a WorkCover certificate as the injury had happened at work. The certificate certified that the plaintiff was unfit for work from 23/04/2018 to 26/04/2018.
The plaintiff was cross-examined about whether he had previously suffered any injuries to his back. The plaintiff agreed that he had stated ‘No’ in the claim for compensation as to whether he had previously had another injury or condition that related to his current back injury.
The plaintiff agreed that he had attended Dr Tahmasebi with complaints of back pain on two occasions prior to 23 April 2018.
The clinical notes of Dr Tahmasebi record that the plaintiff attended on 28 February 2017 with a complaint of low back pain which he had had for ‘2-3 years’ [Exhibit 1]. Dr Tahmasebi referred the plaintiff to a chiropractor, Mr Apap, and a physiotherapist, Ms Teo, at the time. There was no mention in the clinical notes of a work relationship.
The plaintiff said that he did not see Mr Apap or Ms Teo as his back pain was not severe.
His recollection was that Dr Tahmasebi said at the time that his back problem was ‘no big deal’ and was a ‘small muscular injury’. The plaintiff said that the referral was made to see Ms Teo only if he needed it.
When asked whether he had told Dr Tahmasebi that he had had low back pain for 2-3 years, the plaintiff said that he could not remember exactly what he said. The plaintiff said that, if he had said that to Dr Tahmasebi, he would have said that he had had back pain from the time that he started working with ‘heavy lifting’.
The plaintiff was cross-examined as to why there was no mention of work in the clinical notes with respect to the attendance on Dr Tahmasebi on 28 February 2017. The plaintiff said that he could not remember exactly what he told the doctor but thought there was a conversation about how long he had had back ache. The plaintiff said that he thought he said that he had had back pain since he had been working. The plaintiff said that the pain did not normally occur when he was at work but occurred outside working hours, but he was not 100% certain whether he had said this at the time.
The clinical notes record that the plaintiff attended Dr Tahmasebi on 17 April 2018 with a complaint of low back pain for one year which was recently worse. The plaintiff was referred to a physiotherapist, Ms Teo, on 19 April 2018. There was no reference to a work relationship in the notes [Exhibit 1].
The plaintiff said that he could not recall telling Dr. Tahmasebi whether he had had low back pain for one year.
Despite having a referral from Dr Tahmasebi to see Ms Teo following this consultation, the plaintiff said that he did not see Ms Teo at that time.
The plaintiff’s evidence was that he did not see a physiotherapist until after he was injured on 23 April 2018.
The plaintiff was cross-examined as to why he did not mention anything about work when he saw Dr Tahmasebi on 17 April 2018. The plaintiff said that he did not mention work because the back pain did not happen at work. The plaintiff said that the back pain occurred after work.
The plaintiff said that Dr Tahmasebi thought the back pain was most likely due to a mild muscle injury related to heavy lifting
The plaintiff was cross-examined as to why he told Mr Westh, who examined him on behalf of his solicitors, that he had not had any previous problems with his back (see report of Mr Westh dated 19 December 2019, exhibit AA). The plaintiff said that he thought the reference was to whether he had had a ‘severe’ injury to his back in the past. The plaintiff said that his previous back problems were very simple and minor and resolved very quickly with no problems afterwards
The plaintiff agreed that he told Dr Mutton, who examined him on behalf of the defendant and provided a report dated 29 May 2018 [exhibit AE], that he had no prior history in relation to his back, apart from some mild backache over the last six months.
The plaintiff was cross-examined about his attendance on Dr Tahmasebi on 23 April 2018 and why there was no mention of work. The plaintiff said that Dr Tahmasebi should be asked that question. The plaintiff said that Dr Tahmasebi gave him a WorkCover claim form to fill out and a WorkCover certificate of capacity.
The plaintiff was cross-examined as to why he stated in the claim for compensation that Mr Dinakani was a witness to his injury on 23 April 2018. The plaintiff said that Mr Dinakani was at work that day. The plaintiff did not agree with the suggestion that Mr Dinakani was not at work that day.
The plaintiff denied that he or other members of his family had contacted Mr Dinakani to give evidence.
Mr Dinakani gave evidence that he had not been contacted by the plaintiff or his family since the plaintiff had ceased work.
The plaintiff was cross-examined about whether he had injured himself at work on 23 April 2018. The plaintiff denied that the injury was an old back injury which he had had for some time.
Parviz Zahabi gave evidence that he was in the work area when the plaintiff suffered the injury, but that he did not directly see the injury. Parviz Zahabi recalled seeing the plaintiff shaking his hands and observed that, while the plaintiff tried to keep working, he was in quite a lot of pain and looked pale. Parviz Zahabi accompanied the plaintiff when he reported the injury to the office and then left work.
Despite being named as a witness in the claim for compensation, Mr Dinakani gave evidence that he was not working on the day of the incident.
Mr Dinakani said that he spoke to the plaintiff at work the following day (24 April 2018). Mr Dinakani said that the plaintiff told him that he had hurt his back the day before lifting a heavy bedhead.
The evidence is that the plaintiff did not attend work for three days following the incident on 23 April 2018.
Reports of Dr Tahmasebi dated 15 December 2018 and 9 June 2019 were tendered by consent [exhibit N].
Dr Tahmasebi gave evidence. He said that he saw the plaintiff on 28 February 2017. The plaintiff complained of low back pain ‘on and off’ for 2/3 years and said that the pain had got worse recently. Dr Tahmasebi said that, on examination, there was no radiating pain to the lower limbs and ‘no red flags’. Dr Tahmasebi said that the plaintiff had had mild chronic back pain on and off and the pain was more severe when he attended on that day. The plaintiff was given a certificate to be off work for one day and some painkillers. Dr Tahmasebi said that the cause of the plaintiff’s back pain was most likely muscular.
Dr Tahmasebi said that the plaintiff next attended on 8 May 2017 and there was no mention of back pain.
Dr Tahmasebi saw the plaintiff again on 17 April 2018. The plaintiff complained of lower back pain which was worse on that day. The physical examination was almost the same as when the plaintiff was seen on 28 February 2017. Dr Tahmasebi said that the plaintiff’s back pain again appeared to be muscular and he did not arrange any investigations.
The plaintiff attended Dr Tahmasebi again on 23 April 2018. On this occasion, Dr Tahmasebi said he decided to send the plaintiff for a CT scan of his back as his pain was severe and the plaintiff was unable to do his job.
Dr Tahmasebi said that the plaintiff told him that his work duties involved making bedheads in a factory and that he mostly did this by himself. Dr Tahmasebi said that the plaintiff told him that the work involved heavy lifting, was hard and there was a lot of movement for one person.
Dr Tahmasebi was cross-examined and agreed that his clinical notes of 23 April 2018 did not refer to the plaintiff saying that his work involved lifting a bedhead. Dr Tahmasebi said that he had an independent memory of being told by the plaintiff that his work involved lifting bedheads by himself and that the work required him to change position. Dr Tahmasebi said that the plaintiff told him that his back pain became worse after lifting a bedhead at work one day.
Dr Tahmasebi said that, whilst he did not record this history in his clinical notes, the plaintiff did tell him what his work involved and how he hurt his back, and that is why he included that history in his reports.
In cross-examination, Dr Tahmasebi denied that the plaintiff did not provide this history until ‘well after’ 23 April 2018. Dr Tahmasebi said he remembered that the plaintiff also wanted a certificate of capacity for light duties rather than a certificate of capacity saying he was unfit for all duties. Dr Tahmasebi said that he told the plaintiff that it was better if he had some physiotherapy and medication before going back to work on light duties.
Dr Tahmasebi said that he was of the view the plaintiff’s work was the cause of his back pain. He said that he gave the plaintiff a WorkCover certificate of capacity for a few days rest and waited for the CT scan results.
Dr Tahmasebi said the CT scan results showed a L4/5 disc bulge and he subsequently arranged an MRI scan in May 2018 which confirmed a mild broad-based disc bulge at L4/5 and concluded there was a small left paracentral disc protrusion at L1/2 [The investigations are exhibit O].
Dr Tahmasebi said that the clinical examination of the plaintiff on 23 April 2018 was different to his previous examinations of the plaintiff. Dr Tahmasebi said that straight leg raising on the right side was ‘weakly positive’. The plaintiff was also complaining of pins and needles and numbness on the right side. Dr Tahmasebi said that the plaintiff’s presentation had worsened and that is why he arranged for the plaintiff to undergo a CT scan of the back.
Dr Tahmasebi completed a ‘Medical Practitioner Questionnaire – New Claim’ on 29 May 2018 [Exhibit R].
In answer to question 1(a), Dr Tahmasebi described the plaintiff’s current injury as:
Low back pain. L4/5 disc protrusion along with L4 nerve root involvement.
In answer to Question 1(b), Dr Tahmasebi stated that the plaintiff had previously had the same medical condition and/or had reported similar symptoms before.
In answer to Question 1(c), Dr Tahmabsebi provided the following details with respect to the plaintiff’s previous symptoms:
As patient stated he has had low back pain in the last 12 months on and off. However, he has never experienced this severe pain and never stopped his normal duty at work.
In answer to Question 2(a), which asked to describe what had caused the plaintiff’s injury, Dr Tahmasebi stated the following:
His normal duty at work included heavy lifting. Lifting heavy weights at work caused back injury.
In answer to Question 2(b), which asked if the reported cause of the injury was consistent with how you would expect the injury to have arisen, Dr Tahmasebi stated the following;
Repetitive bending, lifting heavy bed’s head at work.
Dr Tahmasebi said that he completed the medical questionnaire based on his findings and what the plaintiff had told him.
Mr Westh, an orthopaedic surgeon, gave evidence.
Mr Westh saw the plaintiff on 18 December 2018 on behalf of Ryan Carlisle Thomas and provided a report dated 19 December 2019 [Exhibit AA].
Mr Westh gave evidence that the plaintiff told him that his work involved upholstering heavy bedheads. This work involved a lot of lifting. On 23 April 2018 the plaintiff said that he was lifting a large sized bedhead weighing about 70kg and experienced pain in his lower back. The plaintiff said that he continued working for a period of time but had to stop because of increased pain in his back and pain in his legs.
Mr Westh said that the plaintiff had injured his back following a lifting incident at work on 23 April 2018. Mr Westh said that the plaintiff had likely sustained a low back strain and possible lumbar disc injury on that day. Mr Westh believed the plaintiff’s employment was a contributing factor to his condition.
The plaintiff told Mr Westh that he had not had any previous problems with his back.
100 Mr Westh was cross-examined and said that he was unaware that the plaintiff had attended Dr Tahmasebi on 28 February 2017 and 17 April 2018 complaining of back pain.
101 Mr Westh said that the plaintiff’s previous attendances for back pain on these occasions did not mean that the plaintiff may not have aggravated a previous back injury on 23 April 2018.
102 Mr Westh concluded that the plaintiff also presented with features of abnormal illness behaviour on clinical examination and a significant psychological condition had developed.
103 Mr Westh referred to a CT scan of the lumbar spine dated 19 June 2018. The report concluded the following:
Minimal circumferential disc bulge at L4/5 and L5/S1 with no significant spinal canal stenosis seen on CT. Mild stenosis involving the left L5/S1 foramina possibly contacting the L5 nerve root.
104 Mr Westh said based on the history of how the injury occurred, and the examination findings, there was some correlation between the examination findings and the CT scan.
105 Mr Westh said, based on the examination findings and investigations, it was his view that the plaintiff’s presentation was attributable to the plaintiff’s work on 23 April 2018.
106 In cross-examination, Mr Westh conceded that he did not have any prior history of an earlier back injury and his view was limited to what the plaintiff told him when seen.
107 The plaintiff said that he was not at work on 24 April 2018 as suggested by Mr Dinakani.
108 Following 23 April 2018, the plaintiff gave evidence that he returned to work on 27 April 2018. Dr Tahmasebi provided a certificate of capacity from that date until 25 May 2018 stating that the plaintiff was fit for suitable/modified work duties with restrictions on lifting, bending, pushing, pulling, standing and sitting [Exhibit C].
109 The plaintiff said that when he went to work on 27 April 2018, he proceeded to do paperwork until about 9.00am when Mr Bubunaras arrived. The plaintiff said that Mr Bubunaras’ first conversation with him concerned queries about the measurements of a bedhead, rather than about his injury. The plaintiff said that Mr Barunaras spoke to him as if everything was normal. The plaintiff told Mr Barunaras that he had a certificate of capacity for light duties. Mr Barunaras told him to give it to the office. The plaintiff said that he spoke to Mr Bubunaras and voiced his concerns about the lack of support he received following his injury and the failure of anyone from management to call him and ask how he was going.
110 The plaintiff said that the conversation then finished.
111 The plaintiff said that no-one else was present when this conversation took place.
112 The evidence of Mr Bubunaras was that the plaintiff spoke quite loudly during this conversation. Mr Bubunaras said that the plaintiff was upset, was raising his hands and threw his tools down in an aggressive manner towards him.
113 Mr Bubunaras agreed that the plaintiff did not swear at him.
114 Mr Bubunaras said that most of the plaintiff’s co-workers would have seen this conversation.
115 Mr Bubanarus agreed that, at the time, he did not speak to any of the co-workers who may have witnessed this incident to obtain their version of what happened. No CCTV footage was viewed to determine whether the incident had been captured by the CCTV cameras. Mr Bubanarus did say that he did not believe the CCTV footage would have been of any assistance.
116 The plaintiff denied that he spoke aggressively and/or threw his tools down in the direction of Mr Bubanaras during the conversation.
117 The plaintiff said that, later that day, he went to the office to give them the certificate of capacity for light duties. He gave the certificate to Mr Bubunaras and said that he thought they would talk about what light duties he could do. The plaintiff said that he thought he was going to be given some documents to sign about the work he was going to do.
118 The plaintiff said Mr Bubanaras then gave him the warning letter dated 27 April 2018 and asked him to sign it [Exhibit E]. The plaintiff said he could not comprehend what the warning was for and was in shock about the allegations. The plaintiff refused to sign the warning and asked for proof that he was rude to Mr Bubanaras. The plaintiff said that there was a CCTV in the area that could be looked at.
119 The warning was headed ‘Written warning for infraction of company policy’. The warning stated the following;
This letter serves as a written warning for the disregard shown towards company policy today 24 April 2018.
The incident occurred this morning, when I entered the upholstery section to greet yourself and the team. Upon arriving, I was confronted by you in an aggressive and confrontational way. This is not acceptable and will not be tolerated.
As your manager, I expect to be spoken to with the same respect that I extend to you. Especially when on the factory floor – in front of your team. In future, if you feel the need to express your thoughts in such an emotive and confrontational way, please request a time to see me in a meeting room.
It is your right as an employee to appeal this warning if you believe it to be unjust. If this behaviour continues and you do not respond positively to the warning system, we will have no other option than to terminate you as an employee.
Please sign here to acknowledge you have received this warning.
120 I assume the date of 24 April 2018 was incorrect and was meant to be 27 April 2018.
121 The evidence is that Melina Pouzoulis, who was employed in the defendant’s accounts department emailed the written warning to the plaintiff on 1 May 2018 on behalf of Mr Bubanaras [Exhibit E].
122 The plaintiff replied to Mr Bubanarus by email on 2 May 2018 and stated the following [Exhibit F]:
Hi Dean
I received your email and was very shocked by you (sic) email because I’ve always been very polite to all and I never talk when I’m emotional.
On that day (Friday 27/02/18) when you came to me and I talked to you, I just asked why nobody called me when I was on my sick leave for my back injuries and no one asked how I felt and how I’m doing. Also on that day when I got hurt and injured my back, no one took me to hospital and I had to drive with pain which it was really unfair.
Just put yourself in my shoes to see how I feel now, I’ve been treated very badly and unfairly by my managers in my work place. If you think that I talked to you badly in front of other workers and in emotional way, please bring your witnesses that saw us and our conversation on that day as I refuse your claim based on my behaviour.
Thanks
Mohammad
123 Mr Bubunaras gave evidence that he did not investigate the issue any further and that he did not interview any other co-workers despite the plaintiff’s apparent request.
124 The plaintiff said that his relationship with the defendant before the written warning had been ‘fantastic’. The plaintiff said that he felt it must have been a good relationship as he had been appointed a supervisor. The plaintiff also said that he had never had a problem with his co-workers before the warning.
125 Following the meeting on 27 April 2018 the plaintiff continued working for the defendant until 22 May 2018.
126 The plaintiff gave evidence that there was no formal return to work plan in existence when he returned to work between 27 April 2018 and 22 May 2018. The plaintiff said that he was unable to resume his normal duties because of his back injury. The plaintiff said that he tried to restrict himself and avoided the more physical parts of the job. The plaintiff said that he would ask for assistance from co-workers when necessary. The plaintiff said that there was limited support in providing him with light duties. The plaintiff said that he did a lot of paperwork and attempted to catch up on the work schedule which had fallen behind.
127 Mr Dinakani said that, after the plaintiff returned to work, he did recall the plaintiff say that he was having problems performing his normal duties and that he had lower back pain. Mr Dinakani said that he had to help the plaintiff more as a result.
128 Mr Zubicueta also said that after the plaintiff returned to work, he was ‘not doing 100%’, and that this was possibly due to his injury. However, Mr Zubicueta also said that he did not have a specific recollection of the plaintiff’s injury.
129 The clinical notes of Dt Tahmasebi indicate that the plaintiff attended the Sunshine City Medical Centre on the following dates in the lead up to 22 May 2018:
1 May 2018 - the plaintiff said he was starting light duties at work and that his back pain was still the same. A referral for physiotherapy was arranged.
2 May 2018 - the plaintiff complained of a patch of hair loss on his beard. Alopecia was discussed.
21 May 2018 - the plaintiff said his back pain was still the same and that he was doing light duty at work. The plaintiff claimed that he still needed physio and hydrotherapy and was waiting for workcover approval. The alopecia on the plaintiff’s beard was getting worse and a cortisone injection was discussed.
130 On 3 May 2018 the plaintiff had a meeting with Mr Bubanarus, Mr Bubanarus’ father Michael Bubanarus, and Ms. Antoniadis.
131 The plaintiff said that the meeting was in relation to the plaintiff working overtime and the work schedule. The plaintiff said that because he was doing light duties, he could not do any overtime. The plaintiff also said that the delivery schedule was well advanced, and overtime should not have been an issue. With respect to the issue of overtime, the plaintiff said that it was difficult to get the co-workers to work overtime because they were not being paid enough.
132 The plaintiff said that there was a discussion about him not keeping his position as supervisor if the issue of overtime was not resolved. The plaintiff also said that when he raised the issue of light duties the response was that work was behind schedule.
133 The plaintiff said that following this meeting his work duties remained the same. The plaintiff said that there was no change in his back condition.
134 The plaintiff said that on 22 May 2018 a pallet of bedheads arrived in the work area. The plaintiff said that he was giving instructions to Parviz Zahabi and Mr Dinakani in Farsi, as they both spoke that language. The plaintiff said that he was telling them what to do with the pallet. The plaintiff said that, after a few minutes, Mr Steele, who had not initially been present, approached him and started complaining that the plaintiff was speaking in Farsi and not English.
135 The plaintiff gave evidence that he told Mr Steele that he was not speaking Farsi to him. The plaintiff said that he always spoke English to Mr Steele.
136 The plaintiff said that he explained to Mr Steele where the bedheads had to go. Mr Steele said he was not going to do it and he went to the office to see Mr Bubunaras.
137 The plaintiff said that the incident with Mr Steele was witnessed by Parviz Zahabi and Mr Dinakani.
138 Both Parviz Zahabi and Mr Dinakani stated that the plaintiff would normally speak Farsi to them when he gave instructions. They said the plaintiff would speak English to the English-speaking workers.
139 Mr Bubunaras said that Mr Steele told him that, when he asked the plaintiff to give instructions in English, the plaintiff said, ‘Fuck English’. Mr Bubunaras stated that Mr Steele requested that he take action about the incident.
140 A meeting was then arranged with the plaintiff, Mr Bubunaras and Mr Steele.
141 At the meeting, the plaintiff said that Mr Bubanaras questioned him as to what had happened with Mr Steele. The plaintiff denied swearing at Mr Steele.
142 The plaintiff said that Mr Bubanaras was of the view that the plaintiff had sworn at Mr Steele and said that the plaintiff had no right to speak Farsi at work anytime. The plaintiff said he was shocked at what Mr Bubanaras said. The plaintiff said that he had spoken in Farsi to Parviz Zahabi and Mr Dinakani to clearly explain the work duties. The plaintiff said that he would normally speak to Parviz Zahebi and Mr Dinakani in Farsi when giving them instructions. The plaintiff said that he offered to call them so that they could say what had happened, but that Mr Bubanaras said that was not necessary.
143 In cross-examination, Mr Bubanarus agreed that it was the plaintiff’s word as against Mr Steele’s word.
144 Both Mr Dinakani and Parviz Zahabi denied hearing the plaintiff swear at Mr Steele or that the plaintiff acted in an aggressive manner at that time. They both said that the plaintiff often gave them instructions in Farsi. They stated that Mr Steele had asked the plaintiff why they were speaking Farsi. Parviz Zahabi said that Mr Steele spoke in an aggressive manner and waved his arms around. Mr Dinakani gave evidence that both the plaintiff and Mr Steele were ‘a bit upset’, but said no swearing occurring.
145 Mr Bubunaras said that, as far as he could remember, he did not interview Parviz Zahebi or Mr Dinakani as to what had occurred between the plaintiff and Mr Steele. He further said that he did not make any enquiries as to whether the incident had been recorded by the CCTV cameras. Mr Bubanarus said that the CCTV cameras were not set up in the bedhead area and did not record sound.
146 Both Parviz Zahabi and Mr Dinakani said that they were never asked about what they witnessed that day.
147 Mr Dinakani said that after the plaintiff was terminated, he was later approached by the defendant and asked about what happened on 22 May 2018.
148 Later that day a second meeting was held between the plaintiff and Mr Bubunaras. On this occasion, Michael Bubunaras and Ms Antoniadis were also present.
149 The plaintiff said that the meeting was again focussed on work and overtime. The plaintiff said that, as far as he was concerned, the work schedule was fine and there was no need for overtime. The plaintiff said that he still had back pain and could not do the heavier aspects of the work. The plaintiff said he was asked whether he was taking any medication for his back and he replied yes.
150 Mr Bubunaras could not remember whether the plaintiff mentioned his back at the meeting.
151 Mr Bubunaras and Ms Antoniadis said that the plaintiff was told that he was going to be demoted at the meeting. They said when the plaintiff was told this, the plaintiff allegedly resigned and gave his brother’s resignation.
152 Ms Antoniadis said that the plaintiff told them he would give them his resignation that night or the next day.
153 Michael Bubunaras was not called to give evidence.
154 The plaintiff denied that he resigned at the meeting and denied saying that his brother, Parviz Zahabi, was also resigning.
155 The plaintiff has not worked for the defendant since 22 May 2018.
156 The plaintiff gave evidence that he could not physically get out of bed on 23 May 2018 because of back pain. The plaintiff sent Mr Bubunaras a text message at 6.06am on 23 May 2018 stating the following [The text message forms part of exhibit J]:
Hi Dean
I’m sick, I can’t come at work.
157 The plaintiff said that he sent the text to Mr Bubanarus because the rule was to always notify the defendant before a work shift commenced if you were unable to work.
158 The plaintiff attended Dr Tahmasebi on 23 May 2018 stating that his back pain had increased and that he could not go to work. Dr Tahmasebi recorded that the plaintiff’s range of movement was restricted and prescribed Panadeine Forte and Celebrex. Dr Tahmasebi provided a certificate of capacity certifying the plaintiff was unfit for duties from 23/5/18 to 30/5/18 [Exhibit G].
159 The plaintiff said that he checked his bank account on 24 May 2018 and believed he had not been paid correctly for his work for the week ending 23 May 2018.
160 On 24 May 2018 at 6.16pm, the plaintiff sent an email to the Accounts department of the defendant addressed to Melina and headed ‘Mohammad Zahabi (wrong payment)’. The email stated the following:
Hi Melina
I’m Mohammad Zahabi 9100074) from bedhead section.
Unfortunately you payed less money for lest (sic) week (17/05/2018 – 23/05/2018).
You have to pay 38 hours (ordinary) but you payed 30 hours (ordinary).
Thursday 17/05/2018 6.30am - 3.00pm.
Friday 18/05/2018 6.30am - 12.30pm.
Monday 21/05/2018 6.30am - 12.30pm.
Tuesday 22/05/2018 5.00am - 3.00pm.
Wednesday 23/05/2018 Sick (with Dr certificate).
Please pay right my income.
Thanks
Mohammad Zahabi
24/05/2018
161 The plaintiff sent a text message to Mr Bubunaras at 6.24pm on 24 May 2018 querying his weekly pay. The text stated the following:
Hi Dean
I’m Mohammad Zahabi.
Unfortunately you payed (sic) less money for lest (sic) week (17/05/2018 – 23/05/2018).
You have to pay 38 hours hours (ordinary) but you payed 30 hours (ordinary).
Thursday 17/05/2018 6.30am - 3.00pm.
Friday 18/05/2018 6.30am - 12.30pm.
Monday 21/05/2018 6.30am - 5.30pm.
Tuesday 22/05/2018 - 3.00pm.
Wednesday 23/05/2018 sick (with dr certificate).
Please pay right my income.
Thanks
Mohammad Zahabi
24/05/2018
162 Mr Bubunaras replied to the plaintiff as follows:
Thanks, I have forwarded this onto Melina.
163 The plaintiff replied as follows;
Okay Thanks.
164 On 29 May 2018 at 9.26am, the plaintiff sent an email to the defendant stating the following:
Hi
I’m Mohammad Zahabi.
Yesterday you payed ($2,248.48) to my account and also yesterday you sent a old payslip (last week payslip) to my email but this new payslip is with 0 (zero) annual leave.
Can you explain why you did that and what do you mean for this payment and this payslip while I’m sick and I’m on work cover please?
Thanks
Mohammad Zahabi
29/05/2018
165 On 29 May 2018 at 10.01am, Ms Pouzoulis from the defendant’s Accounts department replied to the plaintiff’s email as follows:
Hi Mohammad,
The payment you received yesterday was your termination pay as per the termination letter which was hand delivered by courier to your residential address on Friday 25th May. As there was no answer at the door the letter was placed under your front door.
Please find attached a copy of letter and payslip for termination pay.
Kind regards
Melina
Accounts.
[the various emails form part of exhibit K].
166 The plaintiff said that he was not aware that the defendant had dismissed him until he received the email from Ms Pouzoulis dated 29 May 2018.
167 The plaintiff said that he did not receive a termination letter on 25 May 2018. The plaintiff said that he had not seen the termination letter until he received the email from Ms Pouzoulis.
168 The termination letter from the defendant dated 24 May 2018 stated the following [Exhibit H];
Dear Mohammad
Re: meetings 22 May 2018
I refer to our meeting on Tuesday afternoon at 3.00pm which was following up from a meeting with you, John Steele and myself at the beginning of your shift that morning.
The purpose of this meeting was to discuss the future of your employment. Raising your voice, swearing and abusing fellow staff is unacceptable behaviour at any time.
As you are aware we have had cause to speak with you in the past regarding your inappropriate conduct and on 1st May 2018, you were issued a written warning for serious breaches of company policy. It appears you have no intention of changing your behaviour. It was on this basis that we were in the process of deciding to terminate your employment for serious misconduct.
Before we could proceed with this you decided to resign your position. We acknowledged your resignation and requested that you to provide confirmation in writing to which you agreed.
Given that it is now 2 days since resignation and we have not received your written confirmation. If we do not receive your written resignation by 5pm 25 May we will instead proceed to terminate your employment for serious misconduct, effective 26 May 2018.
Yours sincerely
Dean Bubunaras
169 The plaintiff gave evidence that he had not previously resigned his employment with the defendant as stated in the termination letter. The plaintiff said, if he had resigned, why would he send a text to Mr Bubanarus on 23 May 2018 saying that he was unable to work?
170 The plaintiff said that he also did not have permission to resign on behalf of his brother.
171 The plaintiff tendered the defendant’s employee handbook entitled the ‘Crown Posture Bedding Employee Handbook’ [Exhibit AB].
172 Section 12 sets out the policy with respect to the disciplinary process for employees.
173 Section 12.4 discusses ‘Serious Misconduct’ and states ‘It is not possible to provide an exhaustive list of examples of serious misconduct. However, any behaviour or negligence resulting in a fundamental breach of your contractual terms that irrevocably destroys the trust and confidence necessary to continue the employment relationship will constitute serious misconduct’.
174 The following list of examples of serious misconduct is given - theft, fraud, physical violence or bullying, deliberate damage to property, deliberate acts of unlawful discrimination or harassment, possession, or being under the influence, of illegal drugs at work and breach of health and safety policies endangering the lives of other employees or others.
175 Section 12.3 outlines the lesser offence of ‘Unsatisfactory Conduct’ and ‘Misconduct’. The list of examples of conduct under this heading includes ‘rudeness towards your colleagues, objectionable or insulting behaviour, harassment, bullying or bad language’.
176 Section 12.5 sets out the disciplinary process for each form of complaint as follows:
(a) for ‘Unsatisfactory Conduct’ it is a four-stage process of a formal verbal warning, written
warning, final written warning and then termination;
(b) for ‘Misconduct’, it is a two-step process of a final warning and then termination;
(c) for ‘Serious Misconduct’, it is a one step process of termination.
177 The defendant retained discretion in respect of the disciplinary procedures to take account of the employee’s length of service and the severity of the misconduct to vary the procedures accordingly. If the employee had a short amount of service, they may not necessarily receive any warnings before termination, but they would retain the right to a disciplinary hearing.
178 Section 12.6 under the heading the heading ‘General Notes’, states the following:
If you are in a supervisory or managerial position then demotion to a lower status at the appropriate rate of pay may be considered as an alternative to termination, except in cases of serious misconduct.
Serious misconduct offences will result in termination without notice.
DISCUSSION
179 Despite initially accepting the plaintiff’s first claim for compensation, the defendant now seeks to challenge whether the plaintiff has sustained an injury in compensable circumstances.
180 The plaintiff did not object to the defendant adopting this course.
181 Even if the plaintiff had objected to this course, I would have followed the decision of Castillo v VWA (CC (Vic), 24 August 1995, unreported) where Williams J, allowed the question of original entitlement as to liability to be considered, whether or not such entitlement was originally admitted or deemed to have been admitted.
182 The defendant submitted that the first claim for compensation was accepted based on the information available at the time and that the plaintiff’s credit was now a significant issue.
183 The first claim alleged a specific incident on 23 April 2018 whilst lifting a bedhead. The plaintiff claimed that the incident was witnessed by Parviz Zahabi and Mr Dinakani.
184 The defendant stated that Parvez Zahabi gave evidence that he did not see the incident and Mr Dinakani said that he was not at work that day.
185 The evidence of Parviz Zahabi was that he was in the work area when the plaintiff suffered the injury but did not directly see the injury. Parviz Zahabi stated that he saw the plaintiff shaking his hands and observed that, while the plaintiff tried to keep working, he was in quite a lot of pain and looked pale. Parviz Zahabi then accompanied the plaintiff to the office when he reported the injury and then left work.
186 Whilst Parviz Zahabi may not have directly seen the incident, his evidence was that he was in the work area at the time and was aware that that the plaintiff had injured himself.
187 Whilst not actually seeing the incident, I am satisfied that the plaintiff’s naming of Parviz Zahabi as a witness, given the evidence overall, is not a matter that greatly impacts on the plaintiff’s claim.
188 Mr Dinakani said that he was not at work on the day of the incident.
189 However, Mr Dinakani gave evidence that on 24 April 2018, the day after the incident, he saw the plaintiff at work and the plaintiff told him that he had hurt his back the day before.
190 No other evidence was called by the defendant to establish that Mr Dinakani was not at work on 23 April 2018.
191 The plaintiff gave evidence that he was not at work on 24 April 2018 as Dr Tahmasebi had given him a Workcover certificate to be off work.
192 The plaintiff submitted that Mr Dinakani’s recollections in this respect were unreliable.
193 In the circumstances, I am satisfied that Mr Dinakani’s recollection of what took place may have been mistaken. I see no reason for the plaintiff to name Mr Dinakani as a witness if he was not at work on 23 April 2018. However, given the evidence overall, I do not place much weight on this issue either way.
194 The defendant stated that the plaintiff said that he had no previous injury or condition related to the claimed back injury in the first claim for compensation.
195 The defendant stated that the second claim for compensation alleged injury throughout the course of employment and that the injury was first noticed in 2018.
196 The defendant submitted that the two claims for compensation relied on different circumstances which created significant doubt as to a work-related injury.
197 The defendant submitted that the contemporaneous evidence did not support a claim for injury throughout the course of employment.
198 The defendant submitted that the plaintiff was not a witness of truth in that he had given inconsistent, contradictory and incomplete medical histories.
199 With respect to this issue, the defendant relied on the following:
(a)on 28 February 2017 the plaintiff attended Dr Tahmasebi and complained of low back pain which he had had for ‘2-3 years’. A referral to a chiropractor and physiotherapist was made at the time. There was no mention in the notes of a work relationship;
(b)on 17 April 2018 the plaintiff attended Dr Tahmasebi complaining of low back pain for one year which was recently worse. There was no mention of work and the plaintiff was referred to Ms Teo, a physiotherapist;
(c)on the day of the alleged injury (23 April 2018) the plaintiff attended Dr Tahmasebi. There was no note of a work incident and Dr Tahmasebi recorded that the plaintiff’s low back pain had not improved;
(d)the plaintiff attended Dr Tahmasebi on 24 April 2018 and made no complaint of low back pain.
200 The defendant stated that the opinion of Dr Tahmasebi that the plaintiff’s low back pain was work related was not supported by any work reference in his notes, particularly any reference to heavy work. In cross-examination Dr Tahmasebi said that if heavy work or lifting heavy bedheads had been mentioned, he would have recorded it. The defendant said that the explanation of Dr Tahmasebi that he forgot to record it was implausible.
201 The defendant submitted that the plaintiff provided a misleading history with respect to prior back pain before 23 April 2018.
202 The defendant submitted that Mr Westh was not provided with a proper history of prior back injuries.
203 The defendant submitted that there were contradictions in the history provided by the plaintiff to various treaters in respect of smoking cigarettes. In cross-examination, the plaintiff said that he never smoked cigarettes and did not like them. The plaintiff later said that he would occasionally use ‘shisha’ which he said was different to smoking cigarettes.
204 The defendant submitted that there was an inconsistency in relation to the history given by the plaintiff of his sexual history to Dr Weissman and Dr Asadi.
205 The defendant submitted that the plaintiff gave a history to Dr Doig that he has an ‘occasional’ drink which was contrary to giving a history to other doctors of not drinking elsewhere.
206 The plaintiff’s first consultation with Dr Tahmasebi on 28 February 2017 resulted in ‘no red flags’ being raised by the doctor. A neurological examination was normal. The plaintiff’s reflexes were normal. While the defendant raised the issue of a referral being made at that time to a chiropractor and physiotherapist, the plaintiff’s evidence was that he had did not attend them.
207 There is no evidence before the court to indicate that the plaintiff attended either of the referrals.
208 The plaintiff’s evidence was that, at the time, he treated his back pain by taking Panadeine Forte and using heat packs. Importantly, the plaintiff continued working for the defendant in the upholstery/bedhead area.
209 Dr Tahmasebi gave evidence that the next consultation with the plaintiff at the Sunshine City Medical Centre was on 8 May 2017 for an issue unrelated to his back. Dr Tahmasebi said that this meant it was most likely that the plaintiff’s back issue had resolved following the 28 February 2017 consultation.
210 The clinical notes of the Sunshine City Medical Centre indicate that the plaintiff attended on 16 May 2017, 6 June 2017 and 28 September 2017 for issues unrelated to his back.
211 I am satisfied that the plaintiff was either not suffering from any back problems over this period or that any back problems were negligible. Throughout this period the plaintiff was still working for the defendant in the upholstery/bedhead area doing his normal work.
212 The plaintiff’s next saw Dr Tahmasebi on 17 April 2018 with a complaint of low back pain for one year which was recently worse. Dr Tahmasebi recorded ‘no referral pain, no red flags, no sphincter involved, neurological exams normal, reflexes normal’. Straight leg raising was normal and the likely diagnosis seemed to be mechanical back pain.
213 Whilst the plaintiff was referred to a physiotherapist, Ms Teo, on 19 April 2018 the plaintiff said that he could not recall seeing Ms Teo.
214 There is no evidence before the court to indicate that the plaintiff saw Ms Teo as a result of this referral.
215 The plaintiff’s attendances on Dr Tahmabsebi for back pain on 28 February 2017 and 17 April 2018 involved limited treatment and did not affect the plaintiff’s ability to continue working until 23 April 2018.
216 I am not satisfied that any failure by the plaintiff to inform Mr Westh about these two prior episodes of back pain compromised his opinion about what he thought may have happened to the plaintiff on 23 April 2018 by way of injury.
217 The Court must not disregard reliable medical evidence merely due to concerns about the plaintiff’s credibility.
218 In Pulling v Yarra Ranges Shire Council [2018] VSC 248 Bell J summarised the consideration that must be given to medical evidence by a magistrate hearing a claim for workers’ compensation:
The authorities establish three relevant propositions. First, in an application for workers’ compensation, the court must examine the whole of the evidence, including the medical evidence. This obligation applies even where the weight of particular medical evidence has been undermined by other evidence, including evidence that the worker may not have been fully frank with a doctor. Secondly, in considering what weight should be given to medical evidence in this category, the court cannot speculate about what opinion the doctor may have expressed if given the missing information. The opinion may or may not change in consequence. Thirdly care needs to be taken when examining medical reports, particularly in relation to the account given by the doctor of the history provided by the patient.
219 Further, a magistrate is not bound to dismiss a medical opinion merely because the history of events that formed the opinion is not proved in full at the hearing. Where medical reports have been tendered without their authors being cross-examined, those reports from part of the evidence that must be evaluated, in determining questions of injury and cause. All of the medical evidence must be considered in order to determine ‘what was the burden of all the evidence in the case?’ (see Attanayake v Simplot Australia Pty Ltd [2019] VSC 387 at [52] and Allsmanti Pty Ltd v Emikiolis [2007] VSCA 17 at [49] – [50]).
220 I am not prepared to draw any adverse inference as to the plaintiff’s credit as a result of his failure to specifically mention these two prior attendances to any of the other medical practitioners. I accept the plaintiff’s evidence that he did not think these prior episodes of back pain were ‘severe’ and for that reason did not mention them.
221 The defendant submitted that the lack of any mention of work in Dr Tahmasebi’s notes dated 23 April 2018 was critical to the plaintiff’s case.
222 In Woolworths Ltd v Warfe ([2013] VSCA 22 at [112]), Kaye AJA, when discussing medical records which explore the histories given by a patient, observed the following:
Those histories are an important part of the information, upon which the medical practitioner forms a view as to matters such as the diagnosis and prognosis in relation to the plaintiff’s injuries. However, rarely, do the histories, contained in medical reports, purport to be a verbatim record of what the plaintiff has said to the medical practitioner on examination. They are often, at best, an approximate paraphrase or precis of the account given by the plaintiff to the medical practitioner.
223 In my opinion it is relevant that when the plaintiff left work on 23 April 2018 he sent Mr Bubunaras and Mr Paone a text message at 1.25pm telling them that he was unable to continue work as he had ‘back ache’ from lifting ‘a heavy frame’ and was going to see his doctor.
224 The evidence of Dr Tahmasebi was that the plaintiff’s presentation on 23 April 2018 was much worse than his two earlier attendances for back pain and, on this occasion, warranted time off work and further investigation.
225 The plaintiff submitted that whilst Dr Tahmasebi’s consultation notes for 23 April 2018 did not refer to the cause of the injury, in cross-examination, Dr Tahmasebi stated that he had an independent memory that the plaintiff had told him that his work duties involved lifting bedheads and manually handling them. Dr Tahmasebi recalled being told by the plaintiff that he had hurt his back moving a bedhead.
226 Given the text messages that the plaintiff sent to Mr Bubunaras and Mr Paone when he left work, the evidence of Dr Tahmasebi, and the plaintiff’s evidence that Dr Tahmasebi issued a WorkCover certificate of capacity and provided him with a claim form for compensation when he attended, I am satisfied that it is more likely than not that Dr Tahmasebi was provided with a history of an incident happening at work on 23 April 2018.
227 That Dr Tahmasebi was aware of the plaintiff’s work duties and the mechanism of injury is also corroborated by his completion of the Medical Practitioner Questionnaire – New Claim Form on 29 May 2018. Dr Tahmasebi stated in Section 1 of the Form that the plaintiff had presented with lower back pain, which had been present ‘in the last 12 months on and off’ but that the plaintiff had ‘never experienced this severe pain and never stopped his normal duty at work’ until this injury. Dr Tahmasebi reported at Section 2 that ‘lifting heavy weights at work caused back injury’, which he noted formed part of ‘his normal duty at work’. He also noted that ‘repetitive bending’ was an issue with the work duties.
228 I am satisfied that the other apparent discrepancies relied on by the defendant are of relatively minor significance and do not impact on the various findings of the treating doctors and medico legal doctors.
229 I am satisfied that it was in the context of not smoking cigarettes that the plaintiff denied smoking. The plaintiff said that he did smoke ‘shisha’.
230 I am unable to see the relevance to the plaintiff’s case as to any inconsistency given by the plaintiff to Dr Asadi and Dr Weissman as to his sexual history. I am not prepared to accept that it can play any part in determining the plaintiff’s credit overall.
231 I am satisfied that the plaintiff, in giving a history to Mr Doig of having an ‘occasional’ drink, as distinct from telling other doctors of not drinking at all, is also a minor discrepancy.
232 The following medical reports obtained on behalf of the defendant were tendered by consent - a report of Dr Mutton dated 29 May 2018 [Exhibit AE – tendered by the plaintiff], a report from Dr Lucas dated 1 November 2018 [Exhibit 12 – tendered by the defendant] and a report from Dr Doig dated 15 March 2019 [Exhibit 11 – tendered by the defendant].
233 Mr Mutton, an occupational physician, reported that a ‘CT lumbar spine on 24 April 2018 noted a broad-based annular L4-L5 disc bulge causing partial bilateral foraminal stenosis that could irritate or partially impinge on both L4 nerve roots. There was no definite pars defect or spondylolisthesis’.
234 Mr Mutton concluded the following ‘I have assessed Mr Zahabi. He provides a history of acute onset of sharp pain whilst undertaking a heavy lift. He returned to work after two days on to some lighter duties, but at his full-time hours noting that he was a supervisor. He states that he ceased work one month later on 23 May 2018 due to increasing pain. Mr Zahabi presents with low back pain with some unusual features, but there appears to be some overall consistency in terms of lack of movement. CT findings and history of injury notwithstanding the further information that you have provided. On the basis of presentation, he would not be able to return to work at this time either in a supervisory position or in a more manual position in the production area.’
235 Dr Mutton stated that, whilst the defendant had pointed out a number of factors in the plaintiff’s claim, he had provided his opinion based on the information made available to him by the plaintiff when interviewed.
236 Dr Lucas, an occupational physician, reported that the plaintiff presented with a history of symptom concerns which were consistent with a diagnosis of mechanical low back pain. In his opinion these symptoms were associated with the events of 23 April 2018 and ‘may reasonably be considered as an exacerbation of an underlying/previously symptomatic condition. Indication of a work associated exacerbation of significance is considered limited’.
237 Dr Lucas went on to say:
Current symptoms are considered attributable to current mechanical and postural factors in association with imaging age-related spine changes. A significant subjective contributory component to current symptoms appears indicated.
In my opinion, Mr Zahabi’s employment with Crown Posture Bedding is not materially contributing to Mr Zahabi’s current condition.
238 Dr Doig, an orthopaedic surgeon, reported that the diagnosis was ‘non-specific, lower back pain, which has developed into a chronic pain condition consistent with secondary psychological issues. The prognosis in this clinical situation is usually poor. The condition appears to have stabilised in that in my clinical experience it is unlikely to resolve’.
239 Dr Doig stated that the plaintiff appeared ‘to have suffered a soft tissue injury to his lower back while moving bed-heads at work. This ought to have resolved after a number of weeks. His most recent MRI scan revealed minimal pathology’.
240 Dr Doig concluded that, based on his current apparent restrictions, the plaintiff was ‘not fit for any work at all based on his age, education and previous work experience’.
241 The defendant submitted that the preponderance of the medical evidence did not support a work-related psychiatric injury or other consequential injuries.
242 In this respect the defendant referred to the following medical evidence:
(a)Dr Asadi had treated the plaintiff since July 2013. Prior to 23 April 2018 he diagnosed the plaintiff with chronic treatment resistant Major Depressive Disorder and Generalised Anxiety Disorder. Dr Asadi said that such a condition rarely resolves spontaneously as the plaintiff said it did;
(b)Dr Asadi found inconsistency in the plaintiff’s background regarding his sexuality;
(c)Dr Weissman provided a medico legal report dated 19 July 2019 [Exhibit 10]. Dr. Weismann described the case as complex and could not necessarily state that the plaintiff had any actual psychiatric incapacity for work. The plaintiff told Dr Weissman that his concentration and short-term memory was ‘bad’. Counsel for the defendant submitted that this was contrary to the way that the plaintiff gave his viva voce evidence in this proceeding.;
(d)Dr Entwisle provided four reports dated 13 July 2018, 1 August 2018 and 20 September 2018 [Exhibit AD] and 29 March 2019 [Exhibit 13]. Dr Entwisle initially stated that the plaintiff presented with signs and symptoms of an Adjustment Disorder with Depressed and Anxious Mood secondary to pain and incapacity and pre-existing PTSD. In his final report Dr Entwisle said that the plaintiff no longer had a psychiatric incapacity for work which results from or is materially contributed to by the injury.
243 The defendant cross-examined the plaintiff with respect to a referral from Dr Karimpourghanadi (another doctor at the Sunshine City Medical Centre) to Dr Deljo, a psychologist, dated 28 September 2017 [Exhibit 3] and a GP Mental Health Treatment Plan dated 28 September 2017 [Exhibit 4].
244 The plaintiff said he did not attend Dr Deljo.
245 The referral to Dr Deljo stated that the ‘Presenting problem’ was ‘Adjustment disorder/marital problem’. The plaintiff said that he had never been married and did not have relationship problems in September 2017. The plaintiff said that, if anything, he was having problems with his workload being excessive as he had been made a supervisor two months before.
246 There appear to be inconsistencies in the actual mental health treatment plan itself. Whist the plan stated there were ‘relationship problems’, the plan also stated that the plaintiff was ‘in a stable relationship’.
247 Dr Karimpourghanadi was not called as a witness to explain to discuss the mental health treatment plan. There was no evidence that the plaintiff ever attended a psychologist or psychiatrist and/or saw Dr Deljo, after this treatment plan was prepared.
248 Given the apparent ambiguities with respect to the plaintiff’s circumstances, I am not prepared to place any weight on the mental health treatment plan.
249 The defendant submitted that there was no need for treatment for the plaintiff’s alopecia as it was said to be related to stress which the defendant said was not work related.
250 The defendant submitted that the plaintiff’s complaint of diarrhoea was a pre-existing condition based on the clinical notes and evidence of Dr. Tahmasebi.
251 The defendant cross-examined the plaintiff as to whether he had returned to work with another employer since being dismissed. The plaintiff said he had not returned to any form of employment.
252 The plaintiff was cross-examined about various cash deposits that had been made to his bank account over the past 18 months [Exhibit 8]. The plaintiff said that the deposits had been made by his brother and his family. The plaintiff said that his brother had taken over his mobile phone contract as he was unable to afford it. The plaintiff said that he was unable to drive a car and his brother had taken over the car loan and was providing him with the money for the repayments. The plaintiff said that his brother and parents were also giving him money to live on.
253 No evidence was provided by the defendant to suggest that these deposits were as a result of the plaintiff having returned to some form of employment.
254 The plaintiff submitted that, as a result of the cumulative effect of the plaintiff’s work duties, which involved lifting, carrying and bending, and/or the result of a specific incident on 23 April 2018, the plaintiff suffered a back injury, and consequential injuries, that incapacitated him for work.
255 With respect to the plaintiff’s lower back injury, the plaintiff referred to the following evidence:
(a)Mr Westh reported and gave evidence that the plaintiff had a lower back strain injury and a possible lumbar disc injury following a lifting injury at work on 23 April 2018. Mr Westh obtained a history that the plaintiff’s work involved upholstering heavy bed heads and involved a lot of lifting and framework. On the day of the injury the plaintiff said that he was lifting a large sized bedhead weighing about 70kg and experienced pain in his lower back;
(b)Dr Ali Kian Mehr, a specialist in pain and rehabilitation medicine, diagnosed the plaintiff with chronic axial lumbar spine pain due to aggravation of spondylosis which was work-related. Dr Mehr obtained the following history – the plaintiff’s work involved lifting, bending, moving heavy objects, pushing, pulling and leaning in awkward positions for a long time. The plaintiff first felt pain in his lower back six months prior to injury but managed it conservatively with exercises, hot packs and analgesics. On 23 April 2018 the plaintiff had a sudden amplification of his pain in the low back with radiation to the bilateral lower limbs with numbness and severe pain. [Report dated 9 August 2018 - exhibit X];
(c)Dr Robyn Horsley, an occupational physician, obtained a history that the plaintiff performed manual work making bedhead frames weighing anything from 10 to 80kgs. The bedheads were difficult to manoeuvre. On 23 April 2018 the plaintiff was manoeuvring a large bedhead which was either a king-size or a supersize frame when he experienced considerable back pain. The plaintiff’s pain had increased by 1.30pm, his legs were shaking, and he had to go home. Dr Horsley diagnosed the plaintiff with ongoing mechanical back pain and referred leg pain and stated that the events as described in April 2018 and the plaintiff’s presentation were consistent and that work was a significant contributing factor. [Report dated 7 February 2019 - exhibit W];
(d)in a report dated 9 June 2019, Dr Tahmasebi stated that the plaintiff was suffering from lower back pain and lumbar disc protrusion. In his evidence, Dr Tahmasebi also stated that he did not observe any features of abnormal illness behaviour in the plaintiff. As previously stated, Dr Tahmasebi believed the plaintiff’s back injury was related to what took place on 23 April 2018.
256 With respect to the plaintiff’s consequential psychological injury, the plaintiff referred to the following evidence:
(a)in relation to the plaintiff’s psychological condition, Dr Asadi gave evidence that he initially treated the plaintiff from 16 July 2013 to 4 February 2014 (the number of attendances over that period totalled six visits). Dr Asadi said that treatment was centred on a ‘Major Depressive Disorder and Generalised Anxiety Disorder’ and he considered the perpetuating factor to be poor social support and poor acculturation. This was in the context of the plaintiff having only recently moved to Australia and having no family with him at the time;
(b)when next seen by Dr Asadi on 5 July 2018, the plaintiff told him that after February 2014 his psychiatric conditions remitted spontaneously after a few months and he stopped all psychotropic medications in the same year. The plaintiff said he studied English in 2014 and found a job in 2015. The plaintiff said that he was able to cope without medications over those four years; he denied being depressed in 2015-2017; and said that he was only stressed out by excessive workload;
(c)the improvement in the plaintiff’s condition after 2014 coincided with his brothers Milad and Parviz Zahabi moving to Australia. Following their arrival, the plaintiff gave evidence that his parents also moved to Australia;
(d)when asked in examination-in-chief about the impact family members moving to Australia would have on the plaintiff, Dr Asadi stated that while it would still be uncommon for a condition to spontaneously resolve, the removal of that perpetuating factor would have an impact;
(e)Dr Asadi said that when he saw the plaintiff in July 2018, he diagnosed him with Anxiety Disorder with Mixed Anxiety and Depressed Mood;
(f)in his report, Dr Asadi reported that he had since reviewed his letters, clinical notes, as well as the collateral information available to him, and using DSM-5 diagnostic criteria was now of the opinion that the appropriate diagnoses are Major Depressive Disorder and Generalised Anxiety Disorder;
(g)Dr Asadi concluded that, on the existing evidence, the plaintiff’s psychiatric symptoms were pre-existing and had most likely relapsed due to the work-related injury in April 2018. In his opinion, the work-related injury had precipitated the current relapse of the plaintiff’s pre-existing conditions;
(h)Dr Weissman observed that the plaintiff likely only ‘had mild, residual traumatisation features due to his prior experiences’ and this was only a small/mild part of his overall current presentation. The plaintiff’s previous chronic Major Depressive Disorder and Generalised Anxiety Disorder ‘did fully resolve/remit by around mid-2014’ and that the plaintiff ‘was able to work full-time in a job that he enjoyed’ without requiring any psychological treatment or the like;
Dr Weissman was further of the opinion that the plaintiff’s premorbid psychological and emotional vulnerability factors have made it more difficult for him to cope, adapt and adjust to his work-related injury and have rendered him more susceptible and vulnerable to ‘suffering a work related injury; and suffering from a more significant or severe work-related psychiatric injury’;
(j)following a psychiatric assessment of the plaintiff, Dr Weissman concluded that he was suffering from a ‘chronic Adjustment Disorder with Depressed and Anxious Mood of moderate intensity or severity’ relevant to his employment. Dr Weissman was of the understanding that the plaintiff’s alopecia areata had been caused by the ‘stress’ of the work injury and, therefore, in association with his work-related psychiatric injury. This further exacerbated his work-related depression, anxiety and stress;
(k)the evidence of Dr Tahmasebi was that the plaintiff’s stress had resulted from his chronic back pain, which was work-related, and the associated Workcover claim issues.
257 With respect to the plaintiff’s consequential alopecia areata, the plaintiff relied on the following evidence:
(a)Dr Tahmasebi’s consultation notes of 2 May 2018 record that there was hair loss on the plaintiff’s beard. The hair loss then got worse over a short period of time, as noted on 21 May 2018, and was diagnosed as alopecia areata. In his report of 9 June 2019, Dr Tahmasebi said the plaintiff developed stress and anxiety as a result of his lower back pain and alopecia areata;
(b)Dr Alan Segal, a dermatologist, prepared a report for the defendant dated 5 February 2019 [Exhibit AC]. He observed that the plaintiff suffered hair loss within ten days of the work injury and diagnosed the plaintiff with classical alopecia areata due to the stress associated with his current back problem.
258 With respect to the plaintiff’s consequential chronic diarrhoea, the plaintiff relied on the following evidence:
(a)The CT scan of 19 June 2018 referred to reduced anal tone and sensation arising from the plaintiff’s back injury of 23 April 2018;
(b)In his report, Dr Mehr, observed that the plaintiff was suffering bilateral pain in his buttocks and that he was suffering from chronic diarrhoea;
(c)In his report dated 9 June 2019, Dr Tahmasebi, stated that the plaintiff had developed chronic diarrhoea as a result of his lower back pain.
CONCLUSION
259 The definition of ‘injury’ in section 3 of the WIRC Act means any physical or mental injury and includes the recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury.
260 Pursuant to section 39 of the Workplace Injury Rehabilitation and Compensation Act 2013 (the WIRC Act) the plaintiff is entitled to compensation if there is caused to the plaintiff an injury arising out of or in the course of employment.
261 Section 40(3) of the WIRC Act provides that a worker is not entitled to compensation for a recurrence, aggravation, exacerbation or deterioration of a pre-existing injury, unless the worker’s employment was a significant contributing factor to the injury.
262 In determining whether a worker’s employment was a significant contributing factor to an injury, the Court is required to consider the matters set out in Clause 25 of Schedule 1 of the WIRC Act.
263 Under section 40(3) of the WIRC Act, even if it is found that the back condition was partly pre-existing, or that the psychological injury was an exacerbation of the pre-existing injury from 2013/2014, if employment was a significant contributing factor the plaintiff is entitled to compensation.
264 As noted by Ashley JA in St. Mary’s School v Askwith ([2001] VSCA 90 at [11] and [14]) which dealt with the predecessor to section 40(3) under the Accident Compensation Act 1985 (the ACA), this requirement is a lesser requirement than that of an injury arising out of employment, with ‘significant’ accorded a meaning of ‘considerable amount or effect’.
265 In Tuimaseve v Wesfarmers Ltd ([2016] VMC 15 at [122]), Magistrate Ginnane held that in determining whether or not a plaintiff’s employment amounted to a significant contributing factor, ‘it is not necessary that the plaintiff establish that the employment was either the sole or the dominant cause of her condition’. Rather, it must be established that it was ‘a significant contributing factor’ to the injury. Magistrate Ginnane noted that it was possible for more than one factor in the injury to be ‘significant’, and that the work factor may indeed be of ‘lesser significance’, with it only required that the worker’s employment be “a significant contributing factor to the causation of injury” (see also Meddis v VWA (CC (Vic), Rendit J, WC 94/05239, 24 April 1996, unreported at page 66).
266 The plaintiff was extensively cross-examined with respect to his credit. I have already commented on the defendant’s submissions with respect to that aspect.
267 However, for completeness, I refer to the decision of Johns v Oaktech Pty Ltd ([2020] VSCA 10 at [76]) where the issue of credit was a relevant issue. The Court of Appeal stated the following;
As has been said many times before, in cases of the present kind the credit of the applicant will often be critically important. This was such a case. In order for the applicant to succeed in his application, he needed to persuade the judge that his evidence about the extent of his injury was credible and reliable.
He also needed to establish the reliability of the histories he gave to the medical witnesses, whose opinions were premised on the accuracy of the applicant’s account.
268 The plaintiff has the burden of proof in satisfying the court that he has sustained a work-related injury and resultant incapacity.
269 Any credit issues raised by the defendant were not so serious that I should dismiss the plaintiff’s case solely on that basis. I was persuaded by the plaintiff’s evidence about the circumstances of how he injured himself at work on 23 April 2018. I was also persuaded by the evidence of Dr Tahmasebi.
270 Looking at all the evidence, I am satisfied that the plaintiff’s employment on 23 April 2018 was a significant contributing factor to the plaintiff sustaining a lower back injury on that day. I accept the evidence of the plaintiff as to what happened at work that day. The plaintiff was fulfilling an order for a larger than normal bedhead which the plaintiff said was difficult and awkward to manoeuvre. The plaintiff said that he was doing this work by himself. In so doing the plaintiff sustained a lower back injury. Whether the plaintiff should have done this work with another co-worker is not relevant in this proceeding.
271 The fact that the plaintiff also sent text messages to Mr Bubanaras and Mr Paone advising them of his injury, and the work circumstances as to how the injury had occurred, shortly before he left work is also an important consideration.
272 Furthermore, the provision of a Workcover claim form for compensation and a Workcover certificate of capacity by Dr Tahmasebi at the attendance on 23 April 2018 was supportive of the plaintiff having provided a history to Dr Tahmasebi of having injured himself at work earlier that day.
273 In making this finding, I have also considered section 5 (1B) of the WIRC Act. I have taken into account section 5(1B) (b), (c) and (d) of the WIRC Act in determining whether the plaintiff’s employment was a significant contributing factor.
274 Based on all the medical evidence, the plaintiff’s lower back pain is best described as mechanical in nature. It now appears to have developed into a chronic pain condition. Clearly secondary psychological issues are also playing a considerable part in the plaintiff’s presentation.
275 I am not satisfied that the plaintiff’s employment in the period prior to 23 April 2018 was a significant contributing factor to his lower back injury. The second claim for compensation seems to have be an afterthought.
276 In my opinion the evidence over that period does not support a work relationship to the plaintiff’s lower back injury.
277 The plaintiff’s own evidence was that his previous back problems were very simple and minor and resolved very quickly with no problems afterwards. The plaintiff gave this as a reason for not disclosing that he had suffered from prior back pain in the first claim for compensation. The plaintiff also stated that that was the reason why he did not disclose any prior history of back pain to Mr Westh. There is no evidence suggesting that the plaintiff’s ability to work as an upholsterer was compromised as a result of any work-related injury to his back during his period of employment prior to 23 April 2018.
278 In relation to the plaintiff’s psychological condition, the defendant must take the plaintiff as it finds him (see St. Mary’s School v Askwith supra at [12]) and Clarke v National Mutual Life Insurance Ltd & Ors ([2013] VSC 536 [at [56]).
279 Even if the plaintiff came to the defendant with a pre-existing psychological condition, the relevant question for the court to consider is the extent to which, if at all, his pre-existing psychological condition was aggravated or exacerbated by the work-related lower back injury sustained on 23 April 2018.
280 The evidence of Dr Asadi, Dr Tahmasebi and Dr Weissman indicate that the plaintiff’s psychological condition had stabilised by the time he commenced employment with the defendant. The plaintiff was no longer receiving treatment or medication and was not reporting any symptoms or raising concerns with Dr Tahmasebi.
281 The evidence of Dr Tahmasebi’s was that the plaintiff’s psychological condition deteriorated following the incident on 23 April 2018. This is reflected in the plaintiff’s referral back to Dr Asadi in July 2018 and the commencement of ongoing treatment and medication.
282 Based on the evidence of Dr Tahmasebi, Dr Asadi and Dr Weissmann, I am satisfied that the plaintiff has a work-related adjustment disorder with anxiety and depression consequentially upon his work-related lower back injury sustained on 23 April 2018.
283 In relation to the plaintiff’s request for Cialis medication, the evidence is that he attended Dr Tahmasebi on 23 October 2018 and complained of impotency and erection problems. As a result, Dr Tahmasebi prescribed Viagra. Dr Tahmasebi said no cause for the problem was discussed and he could not remember what was said at the time. Dr Tahmasebi said the problem was usually related to anxiety and stress. However, I am not satisfied that the need for such treatment was work-related.
284 In relation to the plaintiff’s alopecia areata, Dr Segal reported that the plaintiff was ‘extremely stressed and depressed by his back problem’ and that he developed the alopecia areata condition due to this stress. Dr Tahmasebi also gave evidence to this effect. I am satisfied the need for such treatment was work-related
285 On behalf of the plaintiff, Dr Fok completed a request for a gastroscopy and colonoscopy on 27 March 2019. In the request Dr Fok stated the following:
‘The patient suggests that the symptoms might be related to his back injury but I have assured him that this is not related.
I am not sure if the (sic) Workcover (Xchanging) will cover these procedures given the back injuries are not related to his symptoms here most likely especially where his symptoms pre-date the onset of his back injury’
(see Notice of rejection dated 9 April 2018 which forms part of exhibit M).
286 Dr Fok was not called to give evidence.
287 Whilst Dr Tahmasebi said that the plaintiff’s chronic diarrhoea as a result of his stress required further investigation by way of a gastroscopy and colonoscopy, I am not satisfied that the need for such treatment was work-related based on the opinion of Dr Fok.
288 I am satisfied that liability should be accepted for the plaintiff to participate in a gym and swimming program. The plaintiff’s treating physiotherapist, Ms Boland, requested such treatment in March 2019, and I am prepared to accept that it is appropriate treatment given the plaintiff’s compensable lower back injury. Whether such treatment should form part of a pain management program is a matter for the treating medical practitioners.
289 If the plaintiff has an incapacity for work that results from, or is materially contributed by, the compensable injuries, he has an entitlement to weekly payments of compensation in accordance with the WIRC Act.
290 Apart from returning to work between 27 April 2018 and 22 May 2018, the plaintiff has given evidence that he has been unable to work in any capacity since his injury on 23 April 2018.
291 The evidence of Dr Tahmasebi is that the plaintiff has no current work capacity as a result of his lower back injury and psychological condition. Dr Tahmasebi said that he has issued certificates of capacity on an ongoing basis since 23 April 2018.
292 The evidence of Mr Westh, as expressed in his report, was that the plaintiff ‘does not have the capacity to perform his pre-injury employment’, noting that while he had ‘received appropriate conservative management’, there ‘had been little improvement in his condition’. In his report, Mr Westh stated that the plaintiff had ‘poor work prospects taking into his incapacity, age, education, place of residence and previous work experience’.
293 Dr Robyn Horsley reported on 7 February 2019 that, based on his ‘functional tolerances and general presentation’ the plaintiff had no current capacity for work and required ‘proactive physical management’. Without such management, the plaintiff was ‘likely to remain out of work into the longer term’. Dr Horsley also noted that the plaintiff would require ‘significant work restrictions due to his back injury’. Dr Horsley said that the plaintiff’s primary disability was his psychiatric status and relied on ‘my psychiatric colleagues for an opinion about his ability to retrain from the psychiatric perspective and also to participate in a functional restoration program in a pain management setting’ [Exhibit W].
294 Ms Boland, the plaintiff’s treating physiotherapist, reported on 16 July 2019 that the plaintiff had made ‘minimal progress’. Whilst Ms Boland reported that the plaintiff’s back pain was ‘out of proportion with his scan results’, she did state that it was ‘being amplified by several stressors in his life’. Ms Boland reported that the plaintiff required ‘ongoing psychological support’ and should attend a pain management program to return to heavy physical work in the future’ program. Ms Boland concluded that the plaintiff ‘does not have capacity for his pre-injury work’ and ‘will not be able to return to heavy physical work in the future’ [Exhibit V].
295 On 9 August 2018, Mr Mehr reported that the plaintiff would not get back to the previous heavy physical work that he used to do [Exhibit X].
296 Whilst Dr Doig was of the view that the plaintiff may only have suffered a soft tissue injury, he did report that the plaintiff’s non-specific lower back pain had now developed into a chronic pain condition with secondary psychological issues and, given the plaintiff’s apparent restrictions, he had no current work capacity.
297 Dr Lucas reported that the plaintiff ‘may reasonably be considered as capable of undertaking his full pre-injury hours and duties’. Having said that, Dr Lucas further stated that a graduated return ‘to more active/heavier physical activity participations may reasonably be supported to facilitate re-development of suitably activity tolerances.
298 The opinion of Dr Lucas as to the plaintiff’s work capacity is at odds with the opinion of the other medical practitioners as to the plaintiff’s work capacity.
299 I had the opportunity to observe the plaintiff when he gave evidence and when he was sitting or standing in the body of the court. The plaintiff did appear to be in some discomfort during the case and would regularly change his position from sitting to standing. The plaintiff did appear to be in genuine pain as a result of his lower back injury.
300 In relation to the consequential psychological condition, Dr Asadi said that the plaintiff had limited improvement on his medication and stated that his ‘prognosis is guarded’ due to the lack of improvement. Dr Asadi was of the opinion that the plaintiff ‘does not have any current capacity for pre-injury employment’.
301 Dr Horsley was of the view that the plaintiff’s psychological health was a key factor in his present disability.
302 Dr Entwisle ultimately concluded that the plaintiff did not have a work-related psychiatric incapacity. I do not accept that opinion based on the plaintiff’s psychiatric evidence.
303 The defendant submitted that the plaintiff’s levels of concentration and memory did not appear affected when he gave his viva voce evidence.
304 I do not accept that submission.
305 In my opinion, at times the plaintiff had difficulty remembering dates, and asked to rely on notes that he had made to assist his memory when giving evidence. The plaintiff also asked for regular breaks during his evidence.
306 I am satisfied that, on the evidence, the plaintiff currently has no capacity to perform his pre-injury duties as an upholsterer and that this incapacity is materially contributed to by the plaintiff’s compensable lower back injury sustained on 23 April 2018 together with any psychological sequelae.
307 In the absence of further medical treatment and/or a pain management course, I am also satisfied that the plaintiff does not have a current capacity for suitable employment.
308 I now turn to the defendant’s dismissal of the plaintiff on the grounds of ‘serious misconduct’ as set out in the letter of termination dated 24 May 2018 which the plaintiff said he received on 29 May [Exhibits H, J and K].
309 Pursuant to section 185 of the WIRC Act, if the current weekly earnings of a worker who has a work-related injury causing incapacity are reduced because the worker’s employment was terminated because of the worker’s misconduct unrelated to the worker’s incapacity, the Authority may determine not to pay compensation in the form of weekly payments or not to alter the amount of compensation.
310 Section 185(d) does not require the termination of the plaintiff’s employment to be as a result of ‘serious misconduct’ but simply ‘misconduct’.
311 If the court was of the view that the plaintiff’s conduct amounted to ‘serious misconduct’, the plaintiff’s conduct would clearly amount to ‘misconduct’.
312 Having said that, if the court was of the view that the plaintiff’s conduct did not amount to ‘serious misconduct’, it would still be open to the court to determine that the plaintiff’s conduct amounted to ‘misconduct’.
313 Xchanging relied on the termination of the plaintiff’s employment on 24 May 2018 due to alleged ‘misconduct’ to reduce his weekly payments from 26 May 2018 [Notice dated 8 June 2018 within Exhibit M].
314 Section 114(2) of the Accident Compensation Act (the ACA) is the predecessor to section 185 of the WIRC Act.
315 The question of the proper construction of section 114(2) was considered by the Court of Appeal in Jarvis v Salvation Army ([2016] VSCA 175). The Court of Appeal held that it is the role of the Magistrate hearing a claim in relation to weekly payments to ‘enquire into, hear and determine the question of the applicant’s entitlement to the reinstatement of his weekly payments’. (ibid at [24]).
316 The Court stated that ‘the Magistrate [is] required to determine for himself whether or not a relevant precondition was established and then whether or not compensation in the form of weekly payments should be paid to the applicant having regard to the object and purpose of the Act.’ [ibid at [33]).
317 In terms of assessing the weight of any misconduct, the Court held that ‘the better view is that the relevance of the misconduct, and the weight to be attached to it, falls to be considered when the Authority (or a court) comes to ‘determine’ whether or not to pay (or alter the amount of) compensation in the form of weekly payments’.
318 The principle as set out in Jarvis v Salvation Army (ibid) has been applied in Tuimaseve v Wesfarmers Ltd (supra), a decision of Magistrate Ginnane and Vassallo v Intermotor Sales ([2017] VMC016), a decision of Magistrate Wright.
319 Both Magistrates noted that the court had the power to determine afresh a worker’s claim for weekly payments in circumstances where a challenge has been made to a decision under section 114(2A) of the ACA to cancel or alter such payments due to the termination of the worker’s employment due to misconduct unrelated to their incapacity. In making a fresh determination, the court would have to make its decision pursuant to the terms of s 114(2A) of the ACA, which explicitly provided that the decision was a discretionary one, in that the decisionmaker ‘may’ determine whether or not to alter or cancel the amount of compensation in the form of weekly payments.
320 This court must ‘remake the decision that had been made’ to reduce the plaintiff’s weekly payments on the basis that his employment was terminated for misconduct.
321 This requires the court to review the facts of this matter and re-determine whether the alleged conduct of the plaintiff amounted to misconduct, what weight should be attached to the misconduct, and whether it should affect the plaintiff’s entitlement to weekly payments.
322 It was the defendant’s position that the alleged incident of 22 May 2018 where the plaintiff swore at Mr Steele was not just ‘misconduct’ but ‘serious misconduct’ and this justified the termination of the plaintiff’s employment.
323 Mr Bubunaras was cross-examined about the defendant’s written policy contained in the ‘Crown Posture Bedding Employee Handbook.’
324 In cross-examination, Mr Bubunaras accepted that under the defendant’s written policy, it appeared that swearing would only constitute ‘Unsatisfactory Conduct’ or ‘Misconduct’. Mr Bubunaras then gave evidence that there were other reasons for the plaintiff’s termination, including the plaintiff’s alleged slowing down of the work and that he had obtained this information from Mr Dinakani.
325 In cross-examination, Mr Bubunaras also conceded that Mr Dinakani had not reported the alleged slowing down of the work-rate until after the plaintiff’s employment had been terminated.
326 Based on this concession I find it difficult to accept the evidence of Mr Bubanaras. I am satisfied that any alleged slow work output of the plaintiff could not have formed part of the decision to terminate the plaintiff’s employment for ‘serious misconduct’ as of 24 March 2018.
327 As per the letter of termination dated 24 May 2018, I am satisfied that the sole reason for the plaintiff’s termination was the alleged swearing incident of 22 May 2018 which the defendant said amounted to ‘serious misconduct’.
328 I also have reservations about the evidence of the defendant in this regard.
329 The defendant made the decision to summarily terminate the plaintiff in circumstances where Mr Bubanaras had not witnessed the alleged misconduct.
330 The plaintiff denied that he swore or acted aggressively to Mr Steele. The only witnesses to the incident were Parviz Zahabi and Mr Dinakani. Both gave evidence that the plaintiff did not swear at Mr Steele or otherwise behave in an aggressive or abusive manner. Whilst Mr Dinakani said that the plaintiff and Mr Steele were ‘a bit upset’, this is a far cry from the alleged circumstances of the incident relied on by the defendant to justify the plaintiff’s termination.
331 These witnesses were never interviewed by Mr Bubanarus or by any other member of the defendant’s management prior to the decision to terminate the plaintiff’s employment. Based on their evidence to this court, these witnesses would not have supported the basis of the defendant’s misconduct finding.
332 No other direct evidence was called by the defendant to support the allegation of misconduct.
333 In cross-examination, Mr Bubunaras agreed with the proposition that it was the plaintiff’s word against the word of Mr Steele. Mr Bubunaras said that the only evidence he had in relation to the alleged incident was what Mr Steele had told him.
334 Mr Steele was clearly an active participant in the alleged incident. Mr Steele was not called to give evidence.
335 The plaintiff submitted that the failure of the defendant to call Mr Steel as a witness should give rise to an inference that Mr Steele’s evidence would not have assisted their case pursuant to the rule from Jones v Dunkeld ((1959) 101 CLR 298).
336 The failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with the rule in Jones v Dunkeld (ibid). Such an inference is available only if evidence otherwise provides a basis on which that unfavourable inference can be drawn. An unfavourable inference cannot be drawn solely on the basis that the witness was not called. There must be a basis elsewhere in evidence to support the inference.
337 Evidence from Mr Steele could reasonably have been expected to be helpful to resolving the issue with respect to the alleged swearing.
338 No explanation was given by the defendant as to why Mr Steele was not called.
339 I am prepared to draw the inference that the failure to call Mr Steele was because his evidence would not have assisted the defendant’s case.
340 I accept the evidence of the plaintiff, Parviz Zahabi and Mr Dinakani that the plaintiff did not swear at Mr Steele and that the plaintiff’s alleged conduct did not constitute misconduct.
341 The evidence of the plaintiff, Mr Bubunaras and Ms Antoniadis was that prior to the injury of 23 April 2018, the plaintiff had been performing well in his role and had been promoted to supervisor. There had been no written complaints or concerns noted about the plaintiff’s performance prior to 23 April 2018. These are relevant considerations to consider in determining whether the plaintiff is entitled to the reinstatement of his weekly payments.
342 In exercising its discretion, the court must also consider the objectives set out in section 10 of the WIRC Act. Of relevance are sections 10(b), (c) and (d). These include the objective to make provision for the effective rehabilitation of workers, to facilitate their return to work and to ensure that they receive appropriate compensation, as expeditiously as possible.
343 The payment of weekly payments would meet these objectives.
344 Having reviewed the facts, I am satisfied that the ‘relevant precondition’ has not been established for the operation of section 185(d) of the WIRC Act.
345 In line with the principle as set out in Jarvis v Salvation Army (supra), the court, in the exercise of its discretion, is prepared to ‘remake the decision that had been made’ by Xchanging to reduce the plaintiff’s weekly payments on the basis that his employment was terminated for misconduct. The plaintiff’s weekly payments will be reinstated to the appropriate rate for ‘no current work capacity’ as of 26 May 2018.
346 Whilst it is not necessary to comment further given this finding, I also make the following observations.
347 If the alleged swearing had been substantiated, it may have constituted either ‘Unsatisfactory Conduct’ or ‘Misconduct’ pursuant to section 12.3 of the defendant’s written policy.
348 However, I am satisfied that the defendant did not comply with the policy and/or guidelines as set out in the employee handbook in that the disciplinary process for either ‘Unsatisfactory Conduct’ or ‘Misconduct’ was not followed under section 12.5.
349 There was no formal verbal warning, no written warning and no final written warning first issued prior to the plaintiff’s termination in compliance with the ‘four-stage process’ under ‘Unsatisfactory Conduct’.
350 With respect to the ‘two-step process’ for ‘Misconduct’, a ‘final’ written warning was not issued prior to the plaintiff’s termination. The earlier warning issued on 27 April 2018 was not termed a final warning.
351 Xchanging did not seek to rely on the alleged resignation of the plaintiff in its decision to reduce the plaintiff’s weekly entitlements.
352 On that basis there is no need for the court to determine whether the plaintiff did resign at the meeting on 22 May 2018.
353 However, for completeness, I am satisfied that the plaintiff did not resign at the meeting on 22 May 2018.
354 Mr Bubanaras and Ms Antoniadis gave evidence that, as a result of the plaintiff’s alleged behaviour earlier that day, the plaintiff was going to be demoted at the meeting held on 22 May 2018 and that the plaintiff resigned when told this. Despite the evidence of Mr Bubanaras and Ms Antoniadis, no written resignation was forthcoming from the plaintiff following the meeting.
355 Contrary to the evidence of Mr Bubanaras and Ms Antoniadis, the letter of termination dated 24 May 2018 stated that the purpose of the meeting was to discuss the future of the plaintiff’s employment and that the defendant was in the process of deciding to terminate the plaintiff’s employment for serious misconduct when the plaintiff resigned. There was no mention of the plaintiff being demoted in the letter of termination.
356 The plaintiff’s communications with the defendant after 22 May 2018 indicate that he was of the view that he was still employed by the defendant.
357 The plaintiff advised Mr Bubanaras that he was unable to come to work the next day after having seen his doctor. The plaintiff’s evidence was that he advised Mr Bubanaras of his inability to work because that was what was expected of an employee. This is not indicative of someone having resigned his employment the day before.
358 The plaintiff also queried his rate of pay and the subsequent lump sum termination payment made to him.
359 In my opinion the defendant’s actions were a surprise to the plaintiff as he was of the view that he was still employed by them. Nothing in the plaintiff’s conduct after 22 May 2018 supports the defendant’s allegation that he resigned on that day.
NOTICES
360 I am not satisfied that the evidence supports that the plaintiff has sustained an injury to his lower back throughout the course of his employment leading up to the incident on 23 April 2018. The defendant’s notice dated 21 November 2018 will be maintained.
361 I am not satisfied that the evidence supports that the plaintiff’s request for the provision of Cialis is related to any compensable injury. The defendant’s notice dated 9 April 2019 will be maintained.
362 I am not satisfied that the evidence supports that the plaintiff’s request for payment of a gastroscopy and colonoscopy is related to any compensable injury. The defendant’s notice dated 9 April 2019 will be maintained.
363 The Court will otherwise set aside the following decisions of the defendant, namely:
(a)The defendant’s notice dated 8 June 2018 reducing the plaintiff’s level of weekly payments as of 26 May 2018;
(b)The defendant’s notice dated 10 April 2019 rejecting the request for the gym and swimming program;
(c)The defendant’s notice dated 23 April 2018 rejecting the claim for a secondary psychological injury;
(d)The defendant’s notice dated 23 April 2019 rejecting the request for treatment for the alopecia condition;
(e)The defendant’s notice dated 23 April 2019 terminating the plaintiff’s entitlement to weekly payments of compensation and reasonable medical and like expenses as of 29 May 2019.
364 Accordingly, the plaintiff is entitled to an order that weekly payments of compensation be reinstated at the rate appropriate for ’no current work capacity’ from 26 May 2018 and to continue in accordance with the WIRC Act, together with the payment of reasonable medical and like expenses from 29 May 2019, including the requested medical and like expenses, apart from the provision of Cialis, the gastroscopy and colonoscopy.
365 I invite the parties to provide the appropriate orders.
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