IN THE MAGISTRATES COURT OF VICTORIA



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|IN THE MAGISTRATES COURT OF VICTORIA | |

AT melbourne

WORKCOVER DIVISION

Case No. D13135124

|MAHMOUD TAHA |Plaintiff |

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|v | |

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|GM HOLDEN LTD |Defendant |

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|MAGISTRATE: |S GARNETT |

|WHERE HELD: |MELBOURNE |

|DATE OF HEARING: |2, 3 & 4 FEBRUARY 2015 |

|DATE OF DECISION: |18 FEBRUARY 2015 |

|CASE MAY BE CITED AS: |TAHA v GM HOLDEN |

REASONS FOR DECISION

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Catchwords: Degenerative back condition alleged to have arisen throughout course of employment over a period of 22 years – causation – no specific incident - significant contributing factor – work duties – absence of symptoms over years – not satisfied of sufficient causal connection – claim dismissed.

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|APPEARANCES: |Counsel |Solicitors |

|For the Plaintiff |Mr Horner |Maurice Blackburn |

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|For the Defendant |Mr Chammings |Minter Ellison |

HIS HONOUR:

Mr Taha is aged 48 years and commenced employment with the defendant on 1 February 1990. He ceased work on 15 January 2013 as a consequence of back injuries alleged to have arisen out of or in the course of his employment. He lodged a an initial workcover claim on 8 March 2013 alleging injury in December 2012 for which liability was accepted by the defendant and a subsequent claim form on 1 July 2014 alleging the injury occurred throughout the course of his employment. On 3 July 2013, Allianz gave notice of its intention to terminate his entitlement to weekly payments and medical treatment expenses as from 3 August 2013 on the basis that his incapacity was no longer materially contributed to by an injury arising out of or in the course of his employment. On 7 August 2014, Allianz rejected liability in relation to his second claim.

Mr Taha seeks an order that he is entitled to weekly payments of compensation and medical treatment expenses from 3 August 2013 on the grounds that the work he performed over the entire course of his employment was a significant contributing factor in causing his injury and incapacity for work. The defendant disputes causation and alleges the condition of and deterioration of his back is due to natural degeneration for a man of his age and that his employment was not a significant contributing factor to any recurrence, aggravation, acceleration, exacerbation or deterioration of his condition.

Mr Taha gave evidence through the assistance of Arabic interpreters. Dr Parikh, General Practitioner gave oral evidence as did Mr Hwang, Occupational Physician. The defendant also called lay evidence from Mr Gauci, Team Leader who remains in the employ of the defendant and Ms Wilshire, Assistant Supervisor in the assembly plant at the defendant’s premises. Numerous medical reports, medical records and documents were tendered and the court was shown a DVD said to depict the work activities performed by Mr Taha on the Assembly line.

Mr Taha gave evidence that between 1990 and 1995 he worked in the Foundry which required him to pour metal and perform grinding tasks. He told the court that he worked 38 hours per week Monday to Friday and regularly worked 8 hours overtime on Saturday and Sundays. He said that the task of pouring metal was a physically demanding job. He said that between 1995 and 2001 he continued in the Foundry in the felting area, grinding area or was involved in removing parts from moulds. He gave evidence that when he worked in the felting area, parts would be delivered to him on a pallet which he would lift onto a bench and grind. He said the parts varied in weight between 6-8 kgs. He estimated he would grind approximately 150 pieces per day. Mr Taha told the court that he had to use a big metal hammer weighing 6 kgs in order to remove parts from moulds. He said that he had to use considerable force to remove the parts and that he had to lift these parts from the ground. He estimated the parts weighed between 3-9 kgs and once he completed the job he would lift them into a box stacked on a pallet. He estimated he would complete 4-6 boxes every 1-2 hours depending on the size of the parts. He also told the court the workers were rotated on this job.

Mr Taha told the court that between 2001 and 2013 he work on the Assembly lines performing various jobs. He said that he initially worked in Zone 8 which contained 6 stations, for 8 months. He said his duties involved putting various parts on vehicles as they proceeded down the line. He said the parts would be delivered on an overhead line at waist height which minimised the amount of lifting and bending required. He said it did involve some crouching. He told the court that the workers in Zone 8 were rotated through the stations each day but they performed their tasks standing and it did involve bending, reaching and twisting movements.

Mr Taha gave evidence that after working in Zone 8 he was transferred to Zone 7 for approximately 1-2 years. Once again he said the workers were rotated between the 6 or 7 stations within Zone 7 and they performed different duties on each station. He estimated the heaviest part he was required to lift was approximately 1-3 kgs. He told the court he was then transferred to Zone 6 where he remained until he ceased employment in 2013. He said that his normal hours of work were between 6 a.m. and 3 p.m with a morning and afternoon tea break of 20 minutes each and a lunch break of 25-30 minutes. He said that he only occasionally worked overtime in Zone 6. He said he worked with various car parts in Zone 6 including; manifold covers, front covers, discs and flywheels. He said the range of weights he was required to lift would be between 2-3 kgs to 7-8 kgs. He said he would collect the parts from trolleys placed a few metres away and stacked on a pallet at shoulder height. He told the court he was required to fix a flywheel to the engine on the line by use of a drill every 60-70 seconds. He said that if he took longer than the allotted time a red light would indicate that he had not finished. He told the court that the time limit allowed him to perform the task at a “reasonable pace”. Mr Taha said that when nearing the end of the stack on the trolley it would require him to bend down to pick up the part and twist around to face the engine on the line. He said it was not difficult to attach the flywheel as it only required him to “push it onto” the engine.

Mr Taha gave evidence that workers in Zone 6 would generally spend 30 minutes at one station before moving to another or when 50 engines were completed after 1-1 ½ hours. He said the target was 150 engines per day. He also said that when he commenced in Zone 6 there was no rotation policy and that it was introduced in 2004 or 2005.

Mr Taha said that the front covers he worked with weighed 7-8 kgs and they would be delivered to him in plastic boxes, 16 per pallet and stacked at shoulder height. He said the front covers were attached to the engine by a machine. He told the court that he had to perform this task within 70 seconds and was rotated after 1 hour.

He gave evidence that manifold covers weighed 5-6 kgs and they would be delivered to him in boxes, each containing 20 covers and stacked at waist height. He said he was required to put them onto the engine and use an overhead pneumatic or air gun to attached them with screws. He said this task had to be completed within 50 seconds and he was rotated each hour. Other tasks he was required to perform in Zone 6 included; inserting small coils weighing 50 grams, wheels weighing 3kg and small gaskets and screws onto the engine.

Mr Taha gave conflicting evidence as to what he was actually doing at the time he first felt severe leg pain. He initially told the court that he was working on manifold covers in Zone 6 on 3 December 2012 and at approximately 1 p.m., straight after the lunch break he felt severe pain in his leg. He told the court he reported his injury to his female supervisor as he was having difficulty standing and was directed to attend the company medical centre and then went home. He then said he first felt leg pain when he was working on the line on the manifolds and had been performing that task for one hour. He then said that between 11 a.m. and 12 noon he first felt leg pain when working on the manifolds but that it was not severe at that time. He said he then took his lunch break and returned to work for one hour before he experienced severe pain in his leg. He then said he did not think that he worked after the lunch break or, if he did, it was only for a short period.

Mr Taha told the court that after leaving work he subsequently attended Dr Wassouf at the Moreland Health Centre in Coburg. The records indicate he actually attended Dr Al-Tawil at the Justin Avenue Medical Clinic in Glenroy on 3 December. Mr Taha told the court that x rays were ordered and he was referred for physiotherapy treatment. He said he could not recall if he returned to work after that date as he was provided with medical certificates and the factory closed over the Christmas break but believed he may have returned in January 2013 to hand in his certificate.

Mr Taha said that he was referred to Dr Karlov, Physician, who arranged for a CT scan and then MRI to be performed. He said that he changed treating general practitioners to Dr Parikh at Northcote because he used to wait too long when attending Dr Al-Tawil’s practice. Mr Taha confirmed that he lodged his first workcover claim form dated 8 March 2013 but he arranged for a fellow employee to complete the form on his behalf. He said that the injections he received from his doctor only provided temporary relief and that chiropractic, physiotherapy and massage treatment was of no benefit. He gave evidence that he currently experiences strong pain in the back of his right thigh which “feels like electricity” for which he had never experienced before the injury, pain across his back which is stronger in the middle of his back and stiffness in his back. He said that he can walk for 30-40 minutes before he needs to rest and can sit or stand for a maximum of 10-30 minutes before his pain is worse. He also told the court he suffers sleep disturbance, tiredness, becomes irritable, agitated and nervous.

In cross examination, Mr Taha disputed that he delayed lodging his first workcover claim but agreed that he received sick pay during his absence from work between December 2012 and March 2013. He agreed that he worked with various nationalities during his employment and that he conversed in English with them. He also agreed that when he worked in the Foundry between 1990 and 2001 he was only required to tip the container and was not required to lift the container of molten metal in order to pour it into dyes or casts in order to make discs, engine blocks, sumps, manifolds or exhausts as the containers were on an overhead line. Mr Taha gave evidence that most of his work in the Foundry involved pouring molten metal but occasionally he was also required to perform grinding duties on a machine.

Mr Taha told the court that when he ceased work in the Foundry in 2001 he considered himself to be in good health. He agreed that his work on the assembly lines involved rotation between stations performing different tasks and that the parts he was required to fit to the engine were delivered to him. He told the court he was required to lift parts and that the front cover was “big and heavy”. He was not able to dispute the proposition that these parts weighed 3.03 kgs. He disputed that he was only required to lift parts between waist height and shoulder height and said that the last part in the box on the trolley would require him to lift from knee height. Mr Taha agreed that approximately 40% of the workers in Zone 6 were female and they were able to perform the work required in that Zone but he maintained that some of the work was “heavy”.

Mr Taha agreed that he reported the pain in his leg to his Team Leader, Mr Gauci in December 2012, but did not tell him that he thought it was work related. Mr Taha said he could not remember if he told Dr Al-Tawil what caused his pain when he saw him on 3 December 2012 but told the court that he did tell his doctors that he developed his pain at work. He agreed that if he was required to push trolleys the surface at work was smooth and when working and standing at the stations in Zone 6 he was provided with a “fatigue mat”. Mr Taha was questioned at some length about the work history he gave to Dr Parikh that “his work was very heavy involving manoeuvring heavy weights greater than 25 kgs, however, for the last 11 years he is working in engine section manoeuvring of weight of about 15 kgs or more, about 200 engines per day”. He said he could not remember providing that history.

Mr Taha gave evidence that he did not make any complaints or experience any back pain between 2001 when he started on the assembly line and 2009. He said he could not recall attending the medical centre at work on 23 November 2009 complaining of back pain or providing a history that his back pain began “after tea break as he was getting up after sitting down”, nor could he recall attending Dr Wassouf on 24 November 2009 and providing a history that “on 22 November 2009 was sitting down as fishing and jumped to a …rod – sudden onset general low back pain”.

The defendant called Mr Gauci, Team Leader in Zone 6, to give evidence as to the nature of the duties and tasks that are required to be performed by assembly workers in that area. He told the court that he has been employed with the defendant for a period of 18 years and has worked in Zone 6 for the past 6-7 years. Mr Gauci gave evidence that he has known Mr Taha for 12 years from when he was working in the Foundry and in Zone 6. He said that he performed similar tasks to Mr Taha in the Foundry which included felting and grinding of manifolds and breaking castings. He said that when working in the Foundry many of the workers performed a significant amount of overtime. He recalled that there were approximately 15-20 workers engaged in the Foundry in different areas and that he did not have much to do with Mr Taha at that time.

Mr Gauci gave evidence that he commenced working in Zone 6 in 2003 and Mr Taha commenced in that area in approximately 2005 or 2006. He said that he was the Leading Hand in the Zone. Mr Gauci said that those working in Zone 6 on the assembly line would be required to put various parts on the engines as the engine proceeded down the conveyor line. These parts included; front covers, crank pulleys, flex plates, fly wheels and cam covers. He said the assemblers would use an overhead electric or air gun to attach many of the parts to the engines. He said when working on the front covers the parts would be delivered to the assembler on a trolley, stacked waist height and the only bending required was when the assembler lifted the last part which would require bending to knee height. He said the weights of these parts is 3-4 kgs. He said the flywheels and flex plates would weight approximately 6-7 kgs but they are suspended overhead and the assemblers role was to guide them onto the engine without any lifting required.

Mr Gauci said that approximately two years ago the rotation policy was changed with the assemblers being rotated to different stations every one hour rather than two hours because the female assemblers complained. He said of the eight assemblers in Zone 6, three are female. He also said each task on the line must be performed within a cycle of 67 seconds but it can vary depending on the car part being assembled.

Mr Gauci gave evidence that in December 2012, Mr Taha complained to him that he had a sore right thigh. He said that Mr Taha did not tell him what caused it and did not blame his work duties. He recalled that Mr Taha returned to work after Christmas and continued to complain of pain in his leg and back and requested pain killing medication. Whilst giving evidence a 5 minute DVD of the various tasks performed in Zone 6 was shown to the court. The DVD depicted assemblers working on; timing kits, front covers, crank pulleys, water pulleys, flex plates for automatic vehicles and flywheels for manual vehicles and at the cam cover station.

Mr Gauci said that the tasks in Zone 6 as depicted on the DVD do not require assemblers to engage in excessive bending or heavy lifting tasks. He said that the only bending required is to pull the parts out of boxes placed next to them but that involves more of a leaning over motion than bending. Mr Gauci said that on occasions parts would stick to each other in the box which require forceful effort to detach them. He said that it could cause a problem because you would reach over to pick up the part not expecting resistance and you would experience a jolting sensation which would put strain on your arms.

In cross examination, Mr Gauci said that even though he never performed molten metal pouring when he worked in the Foundry, he considered it to be a heavy job and heavier than any task required in Zone 6. He agreed that over the years improvements have been made to the systems of work in Zone 6 and that “it is better now than it was 5 years ago”. He also agreed that the rotation policy has changed on a number of occasions over the years and reduced from a number of hours to one hour and the cycle time for tasks increased. He recalled that when Mr Taha returned to work in January 2013 he performed normal duties, complained of leg, hip and back pain, was limping and requested pain killing medication.

Ms Wilshire gave evidence on behalf of the defendant. She told the court that she has been employed with the defendant for a period of 25 years and that since 2008 has acted in the role of Assistant Supervisor in the engine plant supervising 6-10 team leaders. She gave evidence that she has known Mr Taha since 2003 or 2004 when he commenced work in Zone 6. She said that she believes the rotation system in Zone 6 has always been of 2 hours duration. She told the court that she recalls that Mr Taha worked until Christmas 2012 and then returned to work in January 2013 and she saw him on one occasion only. She said that he did not report an injury to her before Christmas but did notice on his return that he was limping. She told the court that she asked him what had happened and he just said that he had a sore leg and was rubbing it. She said that he did not tell her it was because of his work duties. Ms Wilshire gave evidence that she never observed Mr Taha having any difficulties performing his job and never said to her that he did.

Ms Wilshire told the court that the front covers weighed between 3-4 kgs and that the female assemblers perform all jobs in Zone 6. She said that when working on front covers the assemblers are required to pick up the part and put it on the engine within 67 seconds. She said that cam covers are brought to assemblers on trolleys who then pick them up and put them on the engine. She said this is not a difficult task. When asked to describe whether the jobs in Zone 6 are light, moderate or heavy, she said, moderate. In cross examination, she told the court that although she knew of the work performed in the Foundry she had never been there. She said that she does not recall Mr Taha complaining to her of thigh pain in December 2012.

Medical Evidence

The medical records from the Holden Medical Centre were tendered by the defendant. They record attendances on:

- 19 September 2001: complaining of low back pain since yesterday – grinding manifold – most today….flexion restricted – extension sore – lat rotation (ok?) – no radiating buttock/leg pain – ice pack – nurofen – physio – review – RTW on alternative duties.

- 23 November 2009: presented with low back pain – states back pain after tea break as he was getting up after sitting down – flexion sore – extension sore – lateral rotation (ok?) – no radiating pain – no past history of back problems – refer to doctor - ? physio.

- 7 December 2012: pain in his right thigh posteriorly for the last few days – not sure why – no injury or trauma – no problem with light duties.

- 15 January 2013: same as before – seeing local medical officer – physio and arranged for radiology.

The medical records of Dr Wassouf were tendered. Although they are difficult to read, as they are in handwritten form, it appears that Mr Taha attended for back related complaints on:

- 19 September 2001: works for Holden Motors for 11 years as a grinder – while standing up yesterday and he bent to pick up an object from the floor while doing so he felt snap and severe pain in the low back – he struggled yesterday and finished his shift – today he went to work – he could not perform his duties – he informed his supervisor and sent to the factory doctor who gave him back…nurofen and recommended light duties, frequent rest breaks – he managed to finish the day – he is still in pain which is constant and aggravated by bending and afterwards pain is fixed – no radiation to legs – no associated symptoms.

- 22 September 2001: changed his mind re WC – worked on 20 September – could work on 21 – ordinary certificate.

- 24 November 2009: on 22 November 2009 was sitting down on fishing chair – jumped to a moving rod – sudden onset general low back pain…has been difficult to move…

- 14 December 2012: painful right thigh laterally for 2 weeks – no…cause – no injury or other….

The records also indicate that he attended on 19 December 2012, 21 January 2013, 23 January, 6 February, 14 June and 17 January 2014 but the entries are for the most part indecipherable.

The records of Dr Wassouf contain records relating to a referral by him for an x-ray of his right femur performed on 20 December 2012 and for physiotherapy treatment. The x-ray results indicate: normal alignment. No fracture or focal bone lesion. Normal appearance of the hip and knee joints. No arthropathy. The report from physiotherapist Mr Bromley indicated that he first saw Mr Taha on 25 January 2013 and noted that an assessment of his lumbar spine could not reproduce his pain. He provided treatment in the form of manual therapy and a home program of stretching for the legs, hips and lower back. He opined that his case was complex as his condition had not improved and he did not believe it to be a soft tissue strain.

A medical report and records from Dr Al-Tawil and the Justin Avenue Medical Clinic were tendered. The records indicate that Mr Taha attended on 3 December 2012 complaining of back pain with a history of no recent trauma. On examination Dr Al-Tawil found no tenderness in his back but with a restricted range of movement and normal power in the lower limbs. He prescribed panadol and rest. The records also reveal that Mr Taha next attended on 28 January 2013 and saw Dr Al-kazali with a complaint of right thigh muscle ache with advice given to have massage therapy. On 1 February 2013, Mr Taha saw Dr Al-Tawil complaining of right leg pain for 2 months with no recent trauma and a notation that massage did not help. On examination he noted that his back was not tender and his lower limbs had normal power. He recommended he take panadol and rest. Further attendances occurred on 4, 7 and 11 February with a referral for a CT Scan and Dr Karlov. The CT Scan indicated early degenerative changes involving bilateral L4/5 facets and a moderate right paracentral focal disc protrusion contributing to right lateral recess stenosis with the right S1 nerve root compressed at this site.

In his medical report, Dr Al-Tawil stated that he diagnosed Mr Taha as having back pain with referred right leg pain when he first attended on 3 December 2012. He reported that no recent trauma was recorded on that date. He reported that he commenced providing workcover certificates from 15 January 2013 and that Mr Taha sought treatment at another clinic in April 2013.

Dr Parikh gave evidence and a number of reports prepared by him were tendered in evidence. He reported that he first saw Mr Taha on 22 April 2013 and obtained a history from him that he was employed as a physical labourer at General Motors/Holden for the last 22 years. His work was very heavy involving manoeuvring of heavy weights greater than 25kgs, however, for the last 11 years he is working in engine section manoeuvring of weight of about 15kgs or more, about 200 engines per day. His work remained on full time basis. Mr Taha told me that in early December 2012, while at work he started getting pain in the lumbo-sacral region and right thigh laterally, persisting & increasing at times, he was forced to go home early from work. His pain gradually increased to a point that he could not continue to work. He hoped that with Christmas break he would improve, but his condition worsen & he could not return to work in January 2013.

Dr Parikh also reported that Mr Taha told him there was no history of any traumatic accident. He noted the results of the CT Scan performed on 11 February 2013, the x-ray results of the lumbo-sacral spine, right thigh ultrasound performed on 4 March 2013, MRI Scan of the lumbo-sacral spine and MRI Scan of the right hip performed on 10 April 2013. The CT Scan of the lumbo-sacral spine indicated early degenerative changes of the L4-5 facets with moderate right paracentral L5/S1 disc protrusion contributing to right lateral recess stenosis and impingement of the right S1 nerve root within the lateral recess. Other disc level were reported as normal. The MRI Scan of the lumbo-sacral spine demonstrated that, at the L5/S1 level, there was central and right paracentral disc protrusion compressing the traversing nerve on the right side. The neural foramina and the exiting nerves and the central spinal canal were normal. The rest of the discs showed no significant bulge. The conus medullaris was of normal morphology. Paraspinal soft tissue were normal.

Dr Parikh diagnosed that Mr Taha was suffering from lumbo-sacral strain with disc pathology and nerve impingement syndrome, right sciatica and anxiety/depression. He concluded that Mr Taha’s employment of 22 years in a capacity of physical labour work and nature of, was consistent with the diagnosed injuries and that his employment was a significant contributing factor. He was also of the opinion that Mr Taha was not fit for any kind of physical work and in view of his age, being unskilled and uneducated he would be unfit for non physical labour work.

During evidence, Dr Parikh said that he had obtained a history from Mr Taha that his job involved lifting, pulling and pushing weights in excess of 25 kgs for more than 10 years and that when his job was changed which did not involve lifting of weights greater than 15 kgs he was able to cope. He said that the radiological findings were consistent with continuous ongoing joint trauma over the years. During cross examination, Dr Parikh agreed that the accuracy of a history is very important and that he relied on the accuracy of the history given by Mr Taha when forming his opinion. When questioned as to the absence of symptoms over the years following his attendance with Dr Wassouf in 2001, he said that some people can put up with pain and Mr Taha may not be able to express his symptoms. He conceded that Mr Taha did not tell him he was suffering from symptoms between 2001 and December 2012 but said in the absence of symptoms the work performed could still be causing assaults to his back. He told the court that in his opinion the past trauma caused at work between 1990 and 2001 and 2004 still exists. He described the process as being repeated minor trauma over 20 years due to the nature of the work performed by Mr Taha.

Mr Taha tendered medical reports and records from Dr Karlov, Consultant Physician, who he first saw on 22 March 2013 on referral from Dr Al-Tawil. In his first medical report, Dr Karlov was given a history by Mr Taha that he was employed on the production line building engines for Holden cars. Mr Taha told him that this involved a lot of spinal movements and lifting weights averaging 6 kgs. He also said that his work was very intense and he was involved in, constructing 300 engines a day at a rapid rate. Mr Taha told Dr Karlov that in December 2012, he began to experience pain in the calf which extended up the leg and his leg became numb. Dr Karlov expressed the opinion that considering the nature of his employment requiring continual spinal movements and the repetitive nature of the lifting, his symptoms were entirely consistent with having been produced by his work related activities. He also said that as Mr Taha had no activities outside the workplace which could have contributed to his symptoms and therefore it must be regarded as entirely due to the conditions of his employment. In his second report he also stated that; the lifting, the twisting and rapid pace of movement led to a conclusion that the injuries were entirely consistent with the conditions of his employment. In October 2014, Dr Karlov reported that Mr Taha continues to complain of low back pain radiating down the right leg, that he suffers from sleep disturbance and his condition is aggravated by prolonged sitting and standing.

The defendant called Dr Hwang, Occupational Physician, to give evidence and tendered reports prepared by him and dated 10 April 2013, 11 June 2013 and 10 January 2015. During his first and only examination of Mr Taha on 10 April 2013, Dr Hwang obtained a history from Mr Taha that he initially worked in the foundry section and the job was very heavy. He said that for the past 11 years he had been working in the engine line 6 and would work on 200 engines a day. He said he was required to fasten various items on the engine with a pneumatic tool which included a bottle, manifold and the front bar. He told Dr Hwang that the front bar and manifold were the heavier items and estimated they were around 15kg. He said that he was required to pick them up from approximately knee height and then load them onto a machine which fastens them onto the engine. Mr Taha told Dr Hwang that he had not experienced prior back problems and that in December he started experiencing pain on the right thigh laterally which developed gradually without any precipitating factor and that it gradually got worse over a two week period. Dr Hwang opined that Mr Taha suffered from an L5/S1 disc protrusion on the right with sciatica.

On the basis of the history provided, he stated that “it is generally accepted that people engaging in very heavy occupations continuously over a period of time have a higher likelihood of developing back injuries or conditions. I took a careful history of his workplace factors. He described that he had previously worked in the foundry, which was heavy, but he had not done that for over 10 years, and had not had any back problems until more recently. Based on his description, it would appear that the physical nature of his work for the last 11 years at GM has been of a moderate level of manual handling. This involved continuous movement and lifting of moderate weights with partial degrees of bending. I did not get the impression that it involved extreme or full bending on a repetitive basis. I have considered such factors in comparison with normal human movement in a non-occupational setting. I note that moderate levels of physical activities may be beneficial for general health as well as the back, as excessively sedentary lifestyles can also contribute towards back symptoms. Having considered these factors, in my opinion there would not appear to be any clear occupational factors that would have contributed towards the development of his condition any more than normal day to day existence. However, if there is any further objective information about the nature of his duties such as a detailed job analysis or circumstance investigation I will be happy to review this and reconsider my opinion”.

On 11 June 2013, Dr Hwang conducted a workplace assessment in Zone 6 of the engine plant in the absence of Mr Taha. He reported that the general environment was that of a modern, open plan engine plant with the work being undertaken in a production line capacity with a cycle time of one minute. He also observed that the work stations were spacious and pedestrian aisles were wide and clear with separation of pedestrian and mobile equipment. Dr Hwang observed a number of tasks being performed including; Task 30 which he described as involving the assembly of small parts requiring continuous standing and handling of the parts without heavy lifting or significant lifting; Front Cover; a large part said to weigh 3.03 kg stacked on a trolley which is placed close to the assembly line which is then picked up by the assembler and placed on the line and assembled by operation of a machine. He noted that the part is picked from above waist height and the lowest cover is lifted from around knee height which does involve a slight degree of downward reaching or slight bending or semi squatting to handle the part once the assembler reaches the bottom of the trolley; Tasks 32, 33 & 34; requires the placement of small parts said to weigh less than 3 kg onto the engine and fastening them with hand held tools at or just below waist level; Cam cover; requires the fastening of two Cam covers said to weigh between 1.79 and 2.9 kg with a pneumatic gun which requires the assembler to pull each Cam cover from a stillage varying from chest height to hip height without significant bending with the task performed on a slightly elevated platform at an ergonomic height being waist height.

Dr Hwang commented that the duties were of light to moderate levels of manual handling with the heaviest item being the front covers at 3.03 kgs. He noted that some pushing of trolleys was required but the trolleys were on wheels and pushed on a smooth concrete surface with low resistance. He also observed a fatigue mat at the work stations. He concluded by stating that the duties observed would not be expected to increase the risk of back injuries and that there were no identified workplace factors which caused or contributed to Mr Taha’s back condition. He expressed the opinion that his condition is a result of a naturally occurring degeneration process and his disc protrusion occurred as a natural consequence. Dr Hwang provided a supplementary report after being provided with entries from the Holden Medical Centre. He commented that as Mr Taha did not provide any such history he may have forgotten about them and suggested the episodes were self limiting without any residual problems.

In evidence, Dr Hwang stated that in his opinion the absence of a complaint of radiating buttock or leg pain on 19 September 2001 indicated the pain was localised without nerve root involvement. He also stated an absence of any further complaint between September 2001 and November 2009 and between November 2009 and December 2012 indicated recovery from the injuries in those incidents in that they did not persist and the work performed by him since those incidents, in the absence of symptoms, indicates that no damage was being caused. He also opined, that in the absence of a single identifiable cause and an acute injury, his complaints and his condition has been a spontaneous occurrence which is not uncommon. Dr Hwang agreed with the suggestion that the lack of a causative factor being given by Mr Taha to Dr Al-Tawil and Dr Wassouf was entirely consistent with there being no occupational cause for it.

In cross examination, Dr Hwang agreed that over a period the ergonomic standards in workplaces has improved. He also conceded that he is unable to give an opinion as to the ergonomic standards that existed at this workplace in the past. He said he only observed the tasks he was told were performed by Mr Taha. He said he took account, in the overall picture of the tasks performed by Mr Taha, that if he was required to lift a 3 kg part every minute, he would in a one hour cycle be required to lift 180 kgs or 1.5 tonnes in a day. Notwithstanding these requirements, Dr Hwang stated that in his opinion, the lifting tasks in total would not have had a detrimental effect on his spine. He agreed that damage can be caused to the spine over time in the absence of symptoms and that in the presence of damage less trauma could cause a disc injury or damage to a disc including a bulge or prolapse. However, Dr Hwang reiterated that if the work performed was causing such damage he would expect coincidental symptoms to be present.

Conclusion

Mr Taha does not allege that he sustained a discrete injury when performing any specific task in his employment. He alleges that the work duties performed by him throughout the entire course of his employment were a significant contributing factor and which resulted in the development of and recurrence, aggravation, acceleration, exacerbation or deterioration of his degenerative condition. In considering whether his duties were a significant contributing factor regard must be had to; the length of his employment, the nature of the duties and the tasks he performed in the various sections where he worked, the probable development of the injury occurring if the employment did not take place, hereditary risks, his lifestyle and his activities outside the workplace.

The question is whether employment was a significant contributing factor, that is, “of considerable amount or effect”.[1] It is a question of fact. It was submitted on behalf of Mr Taha that it is the cumulative effect of the work performed by him over the years, and in particular whilst working in the Foundry, that has ultimately led to the progression of the degeneration in his lumbar spine leading to disc protrusion at the L5/S1 level.

I accept the evidence of Mr Taha as confirmed by Mr Gauci, that the tasks performed by workers in the Foundry between were physically demanding jobs. The precise details of those tasks were not fully explained in evidence although they appear to have mainly involved the pouring of molten metal from containers which would be guided rather than lifted by the workers, grinding tasks on a machine which involved repetitive lifting of parts weighing approximately 6-8 kgs and the removing of parts from moulds using a heavy hammer weighing approximately 6 kgs. The only evidence of complaint of injury during his period in the Foundry occurred on 18 September 2001 when either grinding a part and/or picking up an object from the floor. That injury appears to have been transient in nature as it only required one attendance at the defendant’s medical centre and two attendances with Dr Wassouf. It also appears that he was only restricted to one day of light duties before returning to normal duties.

Shortly after that incident, it appears that Mr Taha was transferred to engine assembly. He told the court that at that stage he considered himself to be in good health and was not suffering from any back related symptoms. The only reported episodes of further symptoms occurred on 23 November 2009 and 3 December 2012. It appears that the symptoms of back pain occurred on 22 November 2009 whilst fishing, as reflected in the records of Dr Wassouf and persisted when he was at work on 23 November based on the notation in the Medical Centre records at GM. Once again this “injury” appears to be transient in nature as no further medical attendances occurred after 24 November and Mr Taha continued working on normal duties.

I find that the duties performed by Mr Taha in the assembly areas were lighter in nature than those performed in the Foundry. The duties were varied, the work was performed in a standing position, involved lifting of parts weighing less than 4 kgs and involved bending, leaning and twisting movements. Although the system of work as depicted on the DVD indicates an ergonomically sound workplace, I accept that there have been numerous improvements introduced over the years to make it so. This has included an increase in the cycle times to perform tasks and a lowering of the rotation period between work stations.

The work history provided by Mr Taha to both Dr Parikh and Dr Karlov was incorrect in respect to the weights he was required to repetitively lift on the assembly line from 2001. He told Dr Parikh that he was required to lift weights of 15 kg and he told Dr Karlov that he was required to construct 300 engines a day at a rapid rate and lifted weights averaging 6 kg. I find that this history gave the doctors a false impression of the work duties he was involved in since 2001 and this formed the basis for their opinions that his degenerative condition was “consistent with” or that employment was a “significant contributing factor”. As has been said on a number of occasions[2], an expert opinion is only as good as the foundation on which it is based. I do not accept that either Dr Parikh or Dr Karlov were provided with an accurate picture of the nature of the duties Mr Taha performed particularly between 2001 and 2012 on the assembly lines to be able to attribute sufficient weight to the opinions they have expressed.

I found Dr Hwang to be an impressive witness. He was prepared to make concessions where necessary, including possible spinal damage in the absence of symptoms, and had the advantage of visiting the workplace and viewing the tasks performed on the assembly line. Although I have found that there would have been improvement in the ergonomics of the assembly line over the years to increase task cycles and reduce rotation times, I am satisfied based on the evidence he gave, which was to a large extent confirmed by the evidence of Mr Gauci and Ms Wilshire that the duties in Zone 6 could be considered to involve only moderate levels of manual handling.

I accept and prefer the opinion of Dr Hwang that there are no identifiable workplace duties which either caused or contributed to the degenerative condition in Mr Taha’s back. I do not accept, on the evidence presented, that there is a sufficient causal connection between the duties performed by Mr Taha over the entire course of his employment and his condition in the absence of specific injury or symptoms between 1990 and 2001 (except for the 19 September 2001 complaint) and in the absence of any complaint of pain or other symptoms attributable to work activities between 19 September 2001 and 3 December 2012. I find that his employment has not been a significant contributing factor in the development of his degenerative spinal condition and I do not accept that it has been an accumulation of work duties over 22 years that has either led to the development of or recurrence, aggravation, acceleration, exacerbation or deterioration of his condition.

The evidence presented to the court falls short of a finding that there is a causal connection between employment activities and the degenerative condition in his lumbar spine.

The proceeding will be dismissed.

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[1] Allman v Major Furnace Judge Strong 14 March 1997 and St Mary’s School v Askwith [2011] VSCA 90.

[2] Brimbank v Halilovic (2000) VSCA 12, Nabbs v Hadrinos & Ors [2013] VSC 419, Hulley v Westernport Pipe (Garnett) 3 September 2009 & Lockett v TR & TL Bramstedt (Garnett) 8 August 2011.

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