Aloe v Workcover/Mercantile Mutual

4 The worker who was born on 2 April 1978 (now aged 22) alleges that on 13 May 1998 whilst in the employ of Saccoccio and Blyth Pty Ltd ("the employers") he was directed to couple (to a Toyota Hilux) a four wheel trailer loaded with a kerbing machine. The total weight of that trailer and contents was between 900 and 1000 kilograms. While carrying out this work he felt a pain in his back (728/99).

5 In the alternative the condition was caused or aggravated by an incident on 27 August 1998 (203/00) when the worker stepped, slid or jumped from the cabin of his employer's truck. This action either caused the physical condition or aggravated in an acute manner the symptoms arising from the incident on 13 May 1998.

6 The employer's case is that the lifting incident of 13 May 1998 did not occur (he was not instructed to lift the trailer). The worker in fact did not lift the trailer. Further, there was no injury on 27 August 1998.

7 The decision is therefore a straight out contest on the credibility of the worker. Because the case involves the recollection of witnesses of the circumstances of an unwitnessed incident two years ago (the incident occurred at 7.30 am at the start of work in a busy yard) that recollection has faded.

8 By the date of the judicial determination the worker had been interviewed twice on 26 November 1998 and 18 January 1999.

9 He had given evidence twice in arbitration proceedings the transcripts of which were before me (3/11/99 and 23/3/00). Not only was all of that evidentiary material before me and he was also cross-examined before me. Evidence was given also before me by Mr Toscano, Mr Lombardo and Mr Saccoccio who were respectively work mates and the employer.

10 It is unsurprising when dealing with an unremarkable incident two years ago that the worker's version of what occurred varied, and much has been made by the respondent of these variations.

11 The worker's essential account is that on 13 May 1998 he was directed by Vic Saccoccio to couple up a tandem axle trailer loaded with a kerbing machine to a Toyota Hilux. In doing so he noticed a sudden pull in the back (he variously described the pains as a "sudden pull" or a "stabbing feeling in the back"). He then accompanied Mr Saccoccio to deliver the machine to a southern suburb almost one and a half hours drive away from the yard. There the machine was to be used by a concreting gang in which his friend Agostino Toscano was working. The worker says he did not then or at anytime until early September 1998 mention this incident or his back problem to Mr Saccoccio - even though he accompanied his employer in the delivery vehicle.

12 The worker continued to work in the heavy occupation of concreter until 27 August 1998.

13 The worker agreed that the weight of the trailer and the kerbing machine was at least 900 kilograms. He said the lift was "easy" (tr 3.11.99. at 68). He said the boss told him to put the trailer on the Toyota. This would usually be done with a forklift. However the forklift was not available because earlier that morning the steering or axle of the forklift had broken whilst the worker was driving it.

14 The respondent's case was that not only was the worker not told to physically lift the trailer because such was impossible because of its weight - but that the worker in fact did not lift the trailer. The respondent asserted that no-one else had ever lifted such a trailer weighing all up in excess of a tonne. To perform such a lift was physically impossible for a single man.

15 That of itself doesn't prove that the worker did not lift the trailer. It only shows that it would have been extremely foolish to try and possibly physically extremely difficult.

16 In the original versions of the incident on 26 November 1998 and on 3 November 1999 on oath, the worker said that the kerbing machine was originally on the trailer. It was taken off with a backhoe. It was placed on the ground. Whilst on the ground the moulds were replaced. These moulds were very heavy.

17 That version changed on 22 March 2000. On oath and he said that the kerbing machine was not taken from the trailer. The moulds were fitted to it whilst it was on the trailer. The worker initially nominated Mr Saccoccio as the person who helped him change the moulds. That version was later changed to "Danny". In the later version the backhoe did not feature in the story at all because it was out of the yard (in spite of the worker having given a reasonably detailed account of the use of the backhoe (tr 14 and 61 - 3/11/99)). In the later version the kerbing machine never left the back of the trailer.

18 The worker in all versions was quite definite that he had complained later that day to his friend Agostino Toscano. Mr Toscano gave evidence. He said he had no recollection of such a complaint.

19 The employer gave evidence that the forklift had undergone a complete overhaul not long before the incident. It was at all times in perfect working order.

20 I have taken into account the transcript dated 22 March 2000 of the evidence of the worker's mother Carmelo Aloe. It does not assist me.

21 I have come to the conclusion that I would accept the worker's evidence only if it was corroborated in a material particular. Because the incident was completely unwitnessed the worker's credibility must necessarily be judged on the surrounding facts. Even after making due allowance for memory lapses I am not persuaded on the balance of probabilities that the worker injured his back on 13 May 1998.

22 I reject his assertion that the forklift was out of commission much less had a broken axle. I accept Mr Saccoccio's version that it was in working order. That of course does not prove that the worker ignored it and did not lift the trailer. However it throws into considerable doubt the worker's version that the incident of the lift was actually precipitated by the non availability of the forklift. The variations between the location of replacing the mould on the lifting machine whether it was on the trailer or off the trailer are inexplicable. These variations are not critical as to whether the worker lifted the trailer as alleged - but they were so part and parcel of the whole incident that it is difficult to see why the recollection changed so markedly. Indeed if the worker conceded there was a machine (be it a backhoe or forklift) to get the machine off the trailer, and then back onto the trailer - the very same machine would be available to lift the trailer onto the tow ball of the Toyota.

23 There is no satisfactory explanation of why the worker did not report the incident to his employer. The employer was on the premises. The worker accompanied him on a one and a half hour journey immediately after the incident and yet he said nothing about it.

24 The worker continued to perform unrestricted duties in quite heavy work between May 13 and August 27.

25 The worker during that period did not visit a doctor or seek any sort of medical treatment.

26 The four wheel trailer weighed in excess of one tonne. It would have been an act of great stupidity to attempt to lift it to a towing coupling.

27 In any event based on the evidence of Mr Lombardo and Mr Toscano I reject the worker's evidence that he actually did lift it. The evidence that I accept is that if in the unlikely event a trailer loaded with the kerbing machine had to be lifted it would take somewhere between four and six men to lift it. I find as a fact that the worker did not lift the trailer onto the tow ball.

28 The worker asserted that part of the evidence he had given on 3 November 1999 regarding his diary had been wrongly transcribed by the reporter. With regard to the evidence that on 13 May 1998 there is a diary entry he made that day noting the incident - I say no more than I specifically and emphatically reject the proposition that the entry was made on that date. I observe it would have been curious indeed that he was astute enough to note the incident in his diary (and it was the only entry between 3 May and 18 June 1998 in a daily diary) but he did not bother to report the incident to the employer. The suggestion that his evidence was wrongly transcribed is bizarre.

29 As to the incident of 27 August 1998 - the worker was offsiding Mr Frank Lombardo. When they arrived at the work site in Salisbury the worker said that he slid, jumped or somehow alighted from the truck and he fell to the ground because his left leg collapsed.

"My left leg gave way - I fell to the ground - I was screaming. I was on the ground two or three minutes screaming."

30 Mr Frank Lombardo said that he alighted from the driver's side and undid some bunting. He was at the rear of the truck and saw the worker get out of the cabin. He did not notice Robert fall to the ground screaming in pain. The worker then asked Mr Lombardo to return him to the yard which he did.

31 I found Mr Lombardo a truthful and quite impressive witness and I accept his observations as accurate. I find as a fact that the worker did not fall to the ground and much less was he screaming with pain for two or three minutes.

32 I also note that there is no support for this version in the written material from the chiropractor whom he saw that day or the physiotherapist whom he saw the next day.

33 The worker has not persuaded me on the balance of probabilities that anything occurred as he was alighting from the truck other than he decided he did not want to work that day. I accept that he visited a chiropractor that day and the physiotherapist the next day but whatever generated these visits was not anything that occurred on 27 August 1998.

34 The worker undoubtedly has the clinical signs of an injured L4/5 disc. How it occurred is not the subject of this inquiry. I am quite satisfied that it did not occur as the result of the two employment incidents alleged to have taken place on 3 May 1998 and 27 August 1998.

35 I therefore confirm the rejection of the claims.

Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to s 86(1) of the Act such appeal must be filed with the Registrar in accordance with Form 11 within 14 days of the delivery of this decision and must be served on all parties.