Andrew Cross Motors V. Daniel Bell
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- 57The plaintiff is entitled to weekly payments and reasonable medical and like expenses, amounts reserved, as sought.
AT Melbourne Case No. A13325986
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REASONS FOR DECISION --- Catchwords: Workers Compensation – Rejection of Claim for Weekly Payments and Medical Expenses – Whether Worker Sustained a Back Injury in the course of employment – Questions of Fact - Accident Compensation Act s 82 ---
HIS HONOUR: 1Mr Bell seeks weekly payments and reasonable medical and like expenses to date and continuing for an injury to his lower back, which he says occurred on 8 July 2010.2The defendant denies any injury in its employment. However, it agrees he has significant disc pathology, requires spinal surgery and currently has “no current work capacity”.3The only issue is whether he hurt his back in the course of his employment on 8 July 2010. In short, it is a case of "did it happen or didn't it". As the initial claim was rejected, he has the burden of proof.4Mr Bell is a 40-year-old motor mechanic who commenced work with the predecessor of the defendant in March 2006, and with the defendant itself in November 2009. The defendant trades under the name “Southern Mitsubishi”.5He said that on Thursday 8 July 2010 after lunch he was working on a Pajero four-wheel drive. He was sitting on the front-right quarter panel with his feet in the engine bay. He leaned deeply forward and slightly to his left side to cut a hose. He then had to manoeuvre a bolt with his left hand.6As he sat back upright, he felt a twinge to his left buttock down to the back of his left knee. He got off the vehicle and walked around for a few minutes trying to straighten the leg. This was just before afternoon smoko at 3 p.m..7He was unable to find the OHS workshop foreman, Daniel Cohen, but was able to find the workshop controller, Mr Theo Theophilus, and told him he could not straighten his left leg.8Mr Theophilus said, according to Mr Bell, to try to find some easier work and to see him at the end of the day. He continued working on easier jobs, saw Mr Theophilus at the end of the day, and asked for an injury report form.9He said Mr Theophilus told him to wait to see how things go over the next few days to see how it went and maybe fill in the injury book later. Mr Bell said he knew about the injury book from the induction process. He said it was the protocol for him to tell the occupational health and safety person, Mr Cohen, first, or alternatively, some other more senior person.10He drove home and worked on the Friday and a half-day on the Saturday. In cross-examination, he said he spent most of the weekend in bed. On Thursday night, he said he went for his usual weekly massage at “Zong's Massage”, but was unable to tolerate any massage of his left leg. In passing, I note that no evidence was called, or tendered, from “Zong's Massage”.11On the Friday, he still could not find Mr Cohen, but told Mr Theophilus he still had an apparent hamstring strain and could not straighten his left leg. At this stage, pain was in the leg only. He said Mr Theophilus agreed that it would be better that he did light duties. He did doing small tasks such as first services on cars. He said the trades assistant helped him with puncture repairs by lifting and moving the wheels.12He continued working the next week, doing light work, such as first services and battery replacements, and did heavier work with the assistance of a trades assistant or apprentice. He spoke to Mr Cohen and Mr Theophilus that week and told them he still could not straighten his left leg. They were the ones who did the usual work allocation for his jobs.13He said on Thursday 15 July he told Mr Theophilus he had not got better, and was told by him to go and see a doctor. He rang his usual GP's clinic on that day and made an appointment for Monday 19 July. He said he did not remember if he worked on Friday 16 July. I accept the evidence on behalf of the Defendant, from its service and other records, that he did in fact work on Friday 16 July.14Sometime during that week (maybe 9 July), he said that he may have spoken to Mr Cohen as well, who also said "to see how it goes before filling in the injury book". He said that when he went to see his GP, Dr Van de Velde, on 19 July he still did not have back pain, but described to him the circumstances of leaning over an engine, cutting a hose, manoeuvring a bolt and feeling a hamstring strain.15He said he was given an ordinary medical certificate and told to take Nurofen. He said he later got a worker's compensation medical certificate on 21 July 2010. He has not worked since.16He said he shifted house on 23 July, though his wife said he drove only and did not do any lifting. He put in a claim form on 22 July without any date of injury, describing the incident that I have already described. The claim was denied.17He had a CT scan on 2 August 2010, which showed a prolapsed disc. Eventually he was referred to the orthopaedic surgeon, Michael Johnson. When he saw Mr Johnson on 23 September 2010, he had to fill in a questionnaire. He initially included “8 July” as the date of the incident, but crossed out that date and put in “15 July”. He said he was "confused" because the medication he was on, being naprosyn, a norspan patch and diazepam. However, in a statement to an investigator on 17 August 2010 (some weeks earlier), he had referred to the date of injury as being 8 July 2010.18Mr Johnson referred him for an MRI and later advised Mr Bell to have surgery. As the workers' compensation claim was rejected and Mr Bell was unable to pay, he was not able to have immediate surgery. Unfortunately, due to an apparent mix-up between him and his GP, there has been a delay getting him onto the public waiting list for surgery.19Mr Bell recently changed GPs within the same practice, as he did not want to remain on medication, which he has not taken for some five months. He has acupuncture, “dry needling” and occasional manipulation.20In cross-examination, he was adamant that he had told Mr Theophilus and Mr Cohen of his problems, was told not to put it in the injury book and was given light work or given the benefit of a trades assistant at times. He said that it was quite possible he did in fact work on 16 July.21For example, the records show him doing a roadworthy certificate for a car on that day. Mr Bell said he was not qualified to do this. Whereas Mr Theophilus said he could have done some of the tasks for the roadworthy certificate under supervision. The records, as I will discuss later, did not show what was done by whom in this regard.22Mr Bell said he was put on a number of different jobs and allocations between 9 July and 16 July and said that these were normal duties. He said that these jobs would have been lighter work depending on the type of vehicle he was allocated. For example, the service on a small sedan would be lighter than a four-wheel drive vehicle. The records are ambiguous in this regard.23It was also put to him in cross-examination the records showed assistance was given to him. It was put this was done because a mechanic either had no other work or the job was urgent. Mr Bell agreed with that theoretical proposition, but was adamant he was given the assistance to do the job because of his left-leg problems.24He denied he could have filled in the injury book alone and said the OHS, or in default, other staff needed to complete it at the same time as well. Interestingly, this was confirmed by Mr Theophilus in his evidence.25He admitted going to his GP with back pain on 21 June 2010 (that is before the incident), but said this was associated with an upper respiratory tract infection. This was confirmed by his GP in his evidence. There was no reference to any back problem when he returned to the same practice some five days later. He also agreed that the GP's records showed three previous attendances over 2007 and 2010 in which histories of specific minor non-back work injuries were given.26His wife gave corroborative evidence as to his complaints, its cause and the start of such complaints on a Thursday when he usually had his massage and they went shopping. She talked vaguely about keeping a diary with some details in it. While her evidence did not contradict Mr Bell's evidence, I did not find it particularly helpful.27There is no doubt that the injury and its repercussions have had major dislocations and effects on their lives and have obviously been the subject of many discussions over the last two years. While I do not think she was misleading the court in any way, I did not see her evidence as being strongly corroborative.28Mr Cohen and Mr Theophilus gave evidence as well. I have already referred to their evidence in the matters put to Mr Bell in cross-examination. They denied any oral report of injury, any apparent pain or difficulty on the part of Mr Bell and any allocation of light work or the use of an assistant because of Mr Bell's alleged leg problems.29As stated, they expressed different views as to the jobs done by Mr Bell over the period from 9 July to 15 or 16 July. As I said, both sides have different interpretations as to those records, which were produced in court, which I am unable to resolve.30Mr Theophilus is no longer employed by the defendant. Mr Cohen is now in another position with the defendant. Similar to Mrs Bell, I did not get the impression they were misleading the court and were trying to recollect as much as possible what happened almost two years age. They both made statements as well to an investigator at about the same time as Mr Bell, which they largely confirmed. Mr Theophilus said his first inkling Mr Bell alleged a back injury was just before he made his statement to the investigator.31Mr Theophilus said his office overlooks Mr Bell's work bay and he walked through the workshop about every 15 to 20 minutes. He heard no complaint of any leg problem by Mr Bell and did not observe any apparent problem with him. He said Mr Bell was a good worker, but could be slow.32I have already referred to Mr Cohen's evidence as well in some detail. He said he knew of the allegation of work injury by Mr Bell some time before making his investigator's statement, as relayed by a mutual friend. In his statement, Mr Cohen said that Mr Bell was in fact working on a Pajero on 8 July and would have been required to remove a heater hose, which some people do by getting right into the engine bay.33In his statement, he said that Mr Bell did not work on 12 July and 13 July, which he agreed was wrong, now having looked at the service and other records of the defendant. He believed he meant to say 19 July and 20 July instead and was confused at the time he made the statement.34In his evidence, he also agreed he might not have been in the workshop on the afternoon of 8 July. He agreed he did road tests of repaired and serviced vehicles. He said that he did about 80% “hands on” work at that time.35The only viva voce medical evidence was from the GP, Dr Van de Velde. He said he saw Mr Bell on 19 July. He was in distress with back pain and referred pain to the leg, which was why he put the word “sciatica” in his records. He said Mr Bell stated this was due to working in an engine bay. He was unable to say why he did not write down any history about work, but may not have had time to do so. He stated some people do not want to involve worker's compensation on their first medical attendance, which may explain why he issued an ordinary medical certificate then.36The history of back pain that day is important, as Mr Bell's evidence was that he only had leg pain that day. Although this is not determinant, the closer the allegation of back pain to the claimed incident may be important.37He saw Mr Bell again on 21 July, again found sciatica and issued a workers' compensation medical certificate. He agreed he told Mr Johnson in the referral letter of 4 August that the injury date was “15 July 2010”. He said this might have been the result of a quick question to Mr Bell as he wrote the referral.38He was cross-examined about Mr Bell's alleged “confusion” resulting from his medication and possibly causing errors as to memory of dates. Dr Van de Velde thought that unlikely, saying nausea might have been more likely. However, Dr Van de Velde said that Mr Bell was emotionally distressed and in a lot of pain earlier in the piece, which may have been the reason for what Mr Bell said was confusion.39As to the later development of back pain after the initial leg pain, Dr Van de Velde said that the disc may have been partially injured in the initial incident on 8 July and got worse over the next few days, resulting in back pain as well.40The records of the physiotherapist were tendered in which a history was given on 9 August 2010 of a work injury "four weeks earlier" which, strictly speaking, would have been 13 July. However, the physiotherapy report is further confusing in that the date of injury is also referred to as 8 June and 8 August 2010 in different parts of that report. I place little reliance on that physiotherapist's records as a matter of forensic medicine.41Medico-legal reports were tendered from Mr Johnson, who took a history, albeit the incident happening at work on 15 July, with initial complaint of leg pain and later back pain. He accepted the likelihood of work relationship to the injury and suggested a lumbosacral discectomy.42Medical reports were tendered from three medico-legal surgeons, namely Associate Professor Myers (19 September 2011) for Mr Bell, and Mr Reid (August 2010) and Mr Darryl Nye (November 2011) for the defendant. All of these doctors relate the back injury to the alleged incident on 8 July on the basis of the history given by Mr Bell in their consultations.43I was more interested in the history as to initial leg pain and later development of back pain in this case. Certainly, Mr Nye had a history of back pain occurring at the same time as the leg pain, which was not the case on Mr Bell’s evidence here. However, Mr Reid and Associate Professor Myers took such a history of later back pain and still related the need for surgery to the alleged incident on 8 July 2010.44At the outset, I indicated that it was Mr Bell's onus to satisfy me on the balance of probabilities that he suffered his back injury at work on 8 July 2010 in the course of his employment.45Counsel for the defendant points to Dr Van de Velde’s and the physiotherapists' ambiguities (at best) in their initial records as to the history given of date of actual injury as well as Mr Johnson's definitive statement that he was told the injury occurred on 15 July.46He also urged me to accept the evidence of Mr Cohen and Mr Theophilus, noting that Mr Theophilus is no longer employed by the defendant. In addition, he urges me to find that contrary to Mr Bell's memory, he did in fact work on 16 July, which is further evidence as to confusion on dates. The claim form did not set out a date injury, and Dr Van de Velde doubted that Mr Bell would have been able to work in the preceding week because of the severity of his back and leg pain when he first saw him. Counsel for the defendant also noted the absence of the evidence from “Zong's Massage”.47Counsel for the plaintiff points to Dr Van de Velde’s summary to the insurer on 16 August 2010, referring to an incident in the engine bay and the fact Mr Bell did initially put 8 July in the questionnaire in Mr Johnson's room. Certainly, he had specified that date of injury (8 July) in his earlier statement to the investigator on 17 August 2010. She also made submissions in accordance with a number of other points that have already been discussed in the course of this decision.48I now move onto my findings. I believe that Mr Bell was an honest witness who did not exaggerate. He readily made concessions to a number of inadequacies in his case, as I have set out. He was firm in other areas when challenged or examined as to his complaints to Mr Theophilus and Mr Cohen and the nature of his duties in the following week. He was strongly but firmly cross-examined for some time, maintaining his composure and gave what I believe to have been truthful evidence.49Certainly, I thought that the passage of time might have blurred the edges of his evidence, which remained substantially truthful in my belief. Also, any complaint of hamstring soreness as opposed to a sore back may have seemed to be rather trivial at the time. Perhaps, it may not have been considered a matter of importance from the point of view of inclusion in an injury register.50Mr Cohen himself made an obvious mistake as to relevant dates in his investigation statement as well shortly after the claim was lodged. Mr Bell certainly did not give any evidence of repetitive complaints to Mr Theophilus or Mr Cohen. He may have been able to work on jobs which fortuitously were smaller or able to get assistance from others as a matter of course, rather than by way of special request.51There are a number of aspects to the evidence before me that I believe lend credibility to Mr Bell's case as well. Mr Cohen volunteered in his initial statement that Mr Bell had in fact been working on a Pajero heater hose on 8 July. These records would not have been known to, or accessible by, Mr Bell after his cessation of work.52Also, it is to his credit that there was no evidence by him of back pain until much later. In fact, he said he did not think he had back pain when he first saw Dr Van de Velde on 19 July. Dr Van de Velde said Mr Bell was distressed by back and leg pain, which was the reason he wrote down “sciatica” in his records. If Mr Bell was in fact lying about his symptoms before me, I am sure he would have put the complaint of back pain much earlier.53Dr Van de Velde explained Mr Bell's alleged confusion in terms of him being extremely distressed about the pain, rather than a side-effect of the medication. Although Mr Bell specified 8 July as being the date of his injury to the investigator in August 2010, he still had problems with the actual date when he saw Mr Johnson on 7 September 2010.54Finally, most of the doctors in this case do not have a difficulty with the initial complaint of hamstring pain and later development of back pain as being a reason for disregarding work relationship to the legs.55The defendant made a number of valid points which would justify its scepticism as to whether Mr Bell's injury was work-related. I have considered those aspects.56However, for the reasons set out above, I am satisfied on the balance of the probabilities that Mr Bell did in fact suffer an injury to his back with referred sensory changes to his left leg at work on 8 July 2010, and that employment was obviously a significant contributing factor to that injury.57The plaintiff is entitled to weekly payments and reasonable medical and like expenses, amounts reserved, as sought.- - -
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