WORKCOVER DIVISION Case No. Y VICTORIAN WORKCOVER AUTHORITY --- S GARNETT MELBOURNE REASONS FOR DECISION ---

Transcription

1 !Undefined Bookmark, I IN THE MAGISTRATES' COURT OF VICTORIA AT MELBOURNE WORKCOVER DIVISION Case No. Y SHANE KNIGHT Plaintiff v VICTORIAN WORKCOVER AUTHORITY Defendant --- MAGISTRATE: S GARNETT WHERE HELD: MELBOURNE DATE OF HEARING: 9 & 10 FEBRUARY 2011 DATE OF DECISION: 28 FEBRUARY 2011 CASE MAY BE CITED AS: KNIGHT v VWA REASONS FOR DECISION --- Catchwords: s 109 Rejection neck injury termination of employment contract for misconduct nexus between employment alleged injury termination of employment and incapacity. --- APPEARANCES: Counsel Solicitors For the Plaintiff Mr Sala Hymans Solicitors For the Defendant Mr Chammings Thomsons Lawyers

2 HIS HONOUR: 1 Mr Knight claims weekly payments of compensation and reasonable medical treatment expenses from 29 April 2009, as a result of injuries he allegedly sustained to his neck during the course of his self-employment with S & D Knight Waste P/L, where he was employed as a waste disposal truck driver. The defendant denies liability on the basis that he did not sustain an injury which arose out of or in the course of his employment, or that if he did sustain injury, it did not cause incapacity for employment. 2 Mr Knight gave evidence that he established his own business in June 2006, S & D Knight Waste Pty Ltd (the defendant company in these proceedings), of which he was a Director and employee, which contracted to Thiess Services Pty Ltd to collect domestic waste disposal in the City of Glen Eira. He told the court that he had previously performed similar duties driving left hand drive waste disposal trucks with JJ Richards for one year and Cleanaway for 3-4 years. 3 The evidence revealed that the agreements between Thiess Services Pty Ltd and S & D Knight Waste Pty Ltd provided that Mr Knight s company would supply waste collection services initially by the use of one truck leased from Thiess and then with a second truck from December Mr Knight gave evidence that his duties involved driving a waste disposal truck in the City of Glen Eira area between 6 a.m. and 4 p.m. daily and emptying between 1000 and 1500 bins per day. He told the court that in general the bins would be lifted by the side arm of the truck but because of significant parking problems in the City of Glen Eira there was a regular need for him to exit the cabin and manually manoeuvre bins which could weigh between 40 and 80 kg for the side arm to lift them. He estimated that he would have to perform this task on average times per day. In addition, he would have to constantly turn his neck to look in the side mirrors and video 1 DECISION

3 camera in the truck to view the waste bins being lifted and emptied as well as manually freeing the bins if they became stuck. 5 Mr Knight told the court that in February 2009, he felt his neck crack when he awoke which nearly caused him to vomit. He told the court that he has experienced neck pain from time to time over the past 10 years or more which he attributed to caring for his now deceased disabled son who was seriously injured in a car accident many years ago. Mr Knight gave evidence that he regularly obtained chiropractic treatment to relieve the pain which enabled him to continue working on a full-time basis until 28 April He told the court that he had to cease work because his neck pain was worse than before and that he had had enough and attended his chiropractor, Dr Sunstrom on 3 May 2009 who suggested that he attend his doctor. He gave evidence that he attended Dr Dunn on 4 May, who provided him with a workcover certificate of incapacity and that he has not looked for work or returned to any form of employment since. 6 Mr Knight also gave evidence that he was the victim of an assault by four offenders on 2 May 2010, whereby he sustained injuries to his nose, left eye, left wrist, right knee, right elbow, right hip, left sided hearing loss problems and a brain injury. He told the court that the incident was reported to the police and he has received medical treatment from Dr Dunn for the injuries sustained. 7 In cross-examination, Mr Knight conceded that when he first attended Dr Sunstrom at the Belgrave Chiropractic Clinic on 15 December 2005 for treatment he attributed his neck symptoms to a motor vehicle accident which occurred in He also conceded that despite attending Dr Dunn on a regular basis since 1996, he first mentioned his neck symptoms to him on 4 May Mr Knight agreed that the contract between his company and Thiess was terminated on 30 April 2009 as a result of an allegation that he had deliberately damaged a waste disposal truck of Peter Formoso on 23 2 DECISION

4 April 2009 at the property of Thiess. He told the court that his neck injury prevents him from returning to work and that it interferes with his activities of daily living. Whilst under cross examination, Mr Knight viewed two surveillance DVD s of approximately 68 minutes duration taken of him on 18 January, 23rd January and 8 April He agreed with counsels suggestion that the footage depicted him turning his head, driving, looking down, bending down and walking without apparent restriction. 8 Mr Knight also conceded in cross-examination that he would have continued working if the contract with Thiess had not been terminated on 30 April In re-examination, he told the court that after the contract was terminated he may have been able to work as a supervisor or left hand drive vehicle instructor if his neck condition allowed him to but did not believe he would have been able to work because of his neck and back pain. 9 Mr Sturt, a Manager employed by Thiess Services Pty Ltd and author of the letter of termination of the contract between Thiess and S & D Knight Waste Pty Ltd gave evidence on behalf of the defendant. He told the court that Mr Knight was performing his contractual duties without interruption or complaint until 30 April He told the court that the contract was terminated because of an allegation, which he believes was substantiated by CCTV footage, which was shown to the court, that Mr Knight had deliberately damaged a waste disposal truck operated by Peter Formoso on 23 April He told the court that the damage to the trucks lifting arm was caused by a large nut being loosened and the wiring pulled away. He gave evidence that Thiess arranged for the damaged part to be inspected by the manufacturer whose advice was to the effect that the damage was deliberate and could not have been caused by wear and tear. In his opinion, the CCTV footage depicts Mr Knight tampering with the vehicle on the day in question and when the allegations were put to Mr Knight he was unable to offer a plausible explanation for the conduct depicted in the CCTV footage but did deny 3 DECISION

5 tampering with the vehicle. Mr Sturt told the court that an amount of $2,500- $3,000 representing the cost of the repairs to the vehicle was deducted from the entitlements paid to S & D Knight Waste Pty Ltd on termination of the contract. Medical Evidence 10 Dr Sunstrom, Chiropractor, gave evidence and his report dated 12 May 2009 and his clinical notes were tendered in evidence. The records reveal that Mr Knight first attended the Belgrave Chiropractic Clinic on 15 December 2005 with a history of neck and back problems arising from a car accident 15 years before. The records revealed that Mr Knight attended on approximately 60 occasions from that date with fluctuating symptoms of right sided neck pain for which he received adjustments. The records also reveal that on 21 April 2009, Mr Knight told him that he was going ok, feeling a twinge. The entry on 3 May 2009 records that Mr Knight complained of a sore neck and stressed. 11 In the medical report, Dr Sunstrom expressed the opinion that Mr Knight's work as a driver aggravated his neck pain and affected his thoracic and lumbar spine. He also noted complaints of Mr Knight being depressed because of his sons disability, his wife leaving him, the death of his son in 2005, his second wife leaving him and taking their 5 old daughter with her to Sydney and being exposed to methane gas in the housing estate where he lives. He had suggested to Mr Knight that he see a counsellor or psychologist. In evidence, Dr Sunstrom told the court that Mr Knight complained of having a very sore neck, back and shoulders when he attended on 3 May 2009 and that because of the severity of his complaints he suggested that he see his doctor which he had not suggested before. In cross-examination, he confirmed that he did not ask Mr Knight on 3 May 2009 what caused his condition to worsen and was not told by Mr Knight that the contract with his company had been terminated on 30 April DECISION

6 12 Dr Dunn gave evidence, a medical report dated 12 July 2009, various letters and his clinical notes from 5 December 2006 to 17 June 2010 were tendered. He told the court that he has been treating Mr Knight from 1996 but that Mr Knight never complained to him of neck pain until 4 May He was also unaware that Mr Knight attended a chiropractor for treatment and was not told by him that his contract was terminated on 30 April He gave evidence that his examination of Mr Knight on 4 May 2009 revealed that he was in severe pain with limited rotation and restricted neck movements. At that time he did not believe Mr Knight had a capacity for any work and that based on the duties he was performing as a truck driver it was plausible that those duties contributed to the symptoms he was experiencing. He confirmed that he treated Mr Knight following the assault on 2 May 2010 and was of the opinion that as Mr Knight sustained severe concussion he has an acquired brain injury which still affects his memory and his organisational capacities. Dr Dunn told the court and his clinical notes reveal that between December 2006 and June 2010 he prescribed medication in the form of Zoloft for depression and Duromine capsules for weight loss. He also arranged for Mr Knight to undergo blood tests following his exposure to methane gas at his residence in 2008 and referred him to Dr Boling, Neurosurgeon, in 2010 in relation to his neck symptoms. 13 Dr Dunn confirmed that he arranged for Mr Knight to undergo a CT Scan of his lumbar spine on 8 July 2009 which revealed some degenerative changes and a whole spine MRI on 6 November 2009 which revealed a C5-6 right paracentral disc protrusion contacting the anterior aspect of the cervical cord. In cross examination, he agreed that he did see Mr Knight on 1 May 2009 and provided him with an off work certificate and prescribed Zoloft and Duromine but did not record any history of Mr Knight complaining of neck pain. He agreed that he could not place a date on when the disc protrusion occurred and also agreed that Mr Knight's current incapacity for work is due to a combination of his neck problems and the injuries sustained in the assault. 5 DECISION

7 14 Dr Boling, Neurosurgeon, gave evidence and his reports dated 29 January 2010 and 18 October 2010 were tendered. Dr Boling gave evidence that he only examined Mr Knight on 29 January 2010 on referral from Dr Dunn. Mr Knight told Dr Boling at that consultation that he had been unable to work for a period of nine months due to back and neck pain. He did not identify any definite incident that caused the pain. Dr Boling confirmed that he told Mr Knight that he was unlikely to benefit from surgery. In cross examination, Dr Boling told the court that he was unaware that Mr Knight had been receiving chiropractic treatment for neck and back pain or that he had attributed his neck and back pain to a motor vehicle accident 15 years before. He also told the court that Mr Knight had not told him that his contract had been terminated on 30 April Dr Boling told the court that he was primarily concerned with therapeutic treatment of Mr Knight and did not concentrate on obtaining a meticulous history as to the cause of the pain. In relation to the radiological reports, he expressed the opinion that it would have been beneficial for a specific MRI scan of the cervical spine to be performed rather than a whole body scan. He agreed that the C5-6 abnormality as demonstrated on the MRI scan is consistent with symptoms waxing and waning over the years which can be aggravated by work activity and agreed that it is not possible to give an opinion as to when the protrusion occurred. Dr Boling was reluctant to express an opinion regarding Mr Knight s capacity without having a functional capacity evaluation. 15 Dr Baynes, Occupational Physician, gave evidence on behalf of the defendant and his report dated 18 June 2009 was tendered. Dr Baynes obtained a history from Mr Knight on 18 June 2009 that he developed neck pain 2 years ago and that he woke up on occasions with spasms in his neck, more on the right side. He told him that he occasionally saw his doctor and was treated with ice and told to stretch and would also have occasional myotherapy treatment. He denied any past history. On examination Mr Knight had slight restriction of movement and in the absence of radiological 6 DECISION

8 examinations, Dr Baynes was unable to make a definite diagnosis. He did however suggest that Mr Knight may have sustained a soft tissue injury to the cervical spine, right shoulder and lumbar spine. During his evidence he told the court that Mr Knight did not inform him that he had been receiving chiropractic treatment since 2005, that he had a history of neck pain for 15 years prior to 2005, that he was involved in a car accident in 1988 or that his contract of employment was terminated on 30 April When informed of the results of the MRI whole body scan he agreed with the evidence of Dr Boling that the C5-6 abnormality cannot be dated. He told the court that based on his single examination of Mr Knight he believed he had a capacity to perform his pre-injury duties. In cross examination, he conceded that he had limited information provided to him including the lack of a medical report from Dr Dunn which he suggested be obtained at the time of his examination. Conclusion 16 In general, I was not impressed with Mr Knight as a witness and I found his evidence to be unconvincing. Furthermore, I found him to be unnecessarily aggressive and argumentative during cross-examination. I am not persuaded that Mr Knight sustained an injury to his neck which arose out of or in the course of his employment. I find that Mr Knight had recurring symptoms of neck and back pain over the years caused by the motor vehicle accident in There is no evidence to support a conclusion being drawn that the C5-6 protrusion as demonstrated on the MRI scan dated 6 November 2009, occurred during, or as a result of, his employment between June 2006 and 30 April I find that the need for chiropractic treatment and myotherapy was to provide relief for the ongoing symptoms he was experiencing. Whilst I accept that the nature of his duties may have caused a temporary exacerbation of his symptoms from time to time, I do not find, on the evidence presented, that his work duties resulted in an injury to his cervical spine. I also find that his 7 DECISION

9 inability to work was due to the termination of the contract between his company and Thiess and not as a result of the symptoms he was experiencing. This finding is supported by his own evidence to the effect that he would have continued working if the contract was not terminated and the lack of any evidence of there being any incident or a worsening of his symptoms from when he told Dr Sunstrom on 21 April that he was going ok and when he last worked on 28 April. It is also of importance that Mr Knight did not complain to Dr Dunn, his treating doctor for over 13 years, of any neck problems until 4 May 2009 and did not inform him that he had been receiving chiropractic treatment or myotherapy since December 2005 for neck and back symptoms. Furthermore, he did not complain to Dr Sunstrom whilst receiving treatment for over 3 years that his neck symptoms were caused or aggravated by work. It is also noteworthy that when he consulted Dr Dunn on 1 May 2009, he did not make any complaint of neck pain or complain that his work duties were causing any symptoms or causing him to be unfit for work. Hence, he was not provided with a workcover certificate of incapacity at that time. 18 I find that any ongoing incapacity for employment is as a result of a combination of the symptoms he is experiencing arising from the injuries to his neck and back in the motor vehicle accident and the injuries sustained in the assault on 2 May The surveillance film taken of him prior to the assault indicates a much greater range of movement of his neck and ability to engage in activities of daily living than has existed subsequent to the assault. This finding is consistent with the opinion of Dr Dunn that Mr Knight s current incapacity is due to his neck symptoms and the injuries sustained in the assault. 19 On this basis, Mr Knight is not entitled to weekly payments or medical treatment expenses as claimed and the proceeding will be dismissed. 8 DECISION