V

IN THE MAGISTRATES COURT OF VICTORIAAT MELBOURNE

WORKCOVER DIVISION

PETER COATES

NEW FORM STEEL PTY LTD

MAGISTRATE:

WHERE HELD:

DATE OF HEARING:

DATE OF DECISION:

CASE MAY BE CITED AS:

S GARNETT

MELBOURNE

11, 16, 17 & 18 oCTOBER 2012

31 oCTOBER 2012

COATES v NEW FORM STEEL

Case No. 81 1167227

Plaintiff

Defendant

REASONS FOR DECISION

Catchwords: S 109 Rejection of claim for back injuries sustained on 15 October 2010 -credit issues - causation - capacity for pre injury duties,

APPEARANCES:

For the Plaintiff

For the Defendant

Counsel

Mr Hooper

Mr Gray

Solicitors

Nowicki Carbone

Minter Ellison

HIS HONOUR

1 Mr Coates is 38 years of age and was employed as a stainless steel fabricator

with the defendant from 20 September 2010 until 25 October 2010. He alleges

that he sustained an injury to his low back on Friday 15 October 2010, which

arose out of or in the course of his employment, while performing a task

known as tig welding at a work bench at the defendant's factory. Mr Coates

remained off work until 25 October 2010 when he unsuccessfully attempted to

return to work on light duties. Mr Coates lodged a workcover claim on 26

October 2010 which was rejected by the defendant pursuant to S 109 on the

grounds that he did not sustain an injury which arose out of or in the course of

his employment and, in the alternative, if he did sustain injury, it did not result

in him being incapacitated for his pre injury duties.

Mr Coates gave evidence that on his first day of employment he worked at

the defendant's factory cutting metal rails for fencing. He told the court that on

the second day and for the following three weeks he worked on site at

Swinburne University in Hawthorn installing handrails and performing various

other tasks which included; cutting, fitting, grinding and polishing handrails

with the use of an electric coping saw, grinder and polisher. He gave

evidence that the handrails were installed in stairwells and that he would have

to use a leveller, hammer drill, angle grinder and a tool similar to a belt sander

to perform those tasks. He also told the court that in order to perform his job

he would be required to work in confined and awkward spaces and would

regularly perform the work on his knees or in a sitting position. He said that

his work also involved lifting of metal fixtures weighing'10 to 15 kg and 12to

15 foot long up the stairwells as well as carrying the tools, the tig welder and

gas bottle when packing up at the end of the day.

Mr Coates gave evidence that he was unable to work on Tuesday 12 October

as he was suffering from gastroenteritis. He told the court that on Wednesday

13 October, he was told by Michael, the production manager and Greg Cole,

1 DECISION

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the owner, that in their opinion he was not working fast enough and they

directed him to return to the factory to work on Thursday 14 October and

Friday 15 October. Mr Coates gave evidence that on Friday 15 October at

approximately 9.30 a.m. he was working in the factory at a bench performing

a task known as "butt welding", using a handheld tig welder in a standing

position, bending and leaning to his left side, when he felt a sharp pain in his

low back on his right side which caused him to fall down on his right knee. He

told the court that he tried to keep working for approximately 10 minutes but

could not cope because of the pain and reported the injury to Michael who told

him to take it easy. He said that he continued to work until the morning tea

break at 10 a.m., returning to work for approximately 20 to 30 minutes after

the tea break and then told Mr Cole that he could not work because "l think I

have done something to my back" and needed to see his doctor. Mr Coates

gave evidence that he left the workplace and attended his General

Practitioner, Dr Teh, that afternoon who certified him unfit for work.

Mr Coates told the court that he returned to work with a light duties certificate

on 25 October and was told by Mr Cole that his job involved light duties and

he therefore directed him to perform "butt welding" tasks at the bench with the

provision of a chair whereby he could sit or stand at will. Mr Coates told the

court that his back pain was aggravated by performing this job so he ceased

work and has remained off work since. He told the court that he has not

returned to any paid employment since that date but has continued to act in

the role of student union chair whilst enrolled at Swinburne University. He

gave evidence that he commenced University studies in 2009 studying in a

Certificate lV in Business Management. He said that he became the elected

chair of the student union in 2009, a position he retained in 2010 and 2011,

but not 2012, and he is to become the elected chair at the Wantirna campus in

2013. Mr Coates told the court that he is currently studying a Certificate lV

Training and Assessment course, the duration of which is 6 months, for which

he recently deferred with 2 months remaining until 2013, because of the

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stress he is under. He told the court that in his voluntary role as student chair

he has to be an advocate on behalf of students regarding study issues,

accommodation, finances and other university related issues which includes

organising functions and campaigning to improve student services. Apart from

continuing to engage in these activities since ceasing work with the defendant

he told the court that he has also applied for a number of jobs without

success. ln particular he identified jobs as a sales representative with a

candle manufacturer, guitar tester, servicing evaporating coolers and a door to

door sales job selling shampoos and hair conditioners. ln addition, he told the

court that he has used the services of "Each", an employment agency, to try

and find work in a nursery and light assembly work for which he has also been

unsuccessful as he is restricted to onlyworking 15 hours perweek due to his

injury.

Mr Coates gave evidence that following his injury he has consulted Dr Teh,

General Practitioner, Dr Van Wetering, Sports Physician, Dr Krigsman,

General Practitioner, Mr Brown, Physiotherapist and Dr Richter, Osteopath.

He told the court that he has been prescribed panadeine forte for pain relief,

voltaren, an anti inflammatory and temazepam for sleep disturbance. Mr

Coates said that he first experienced right leg pain which extends to his calf

and foot approximately two weeks after the injury occurred. He said that he

experiences a dull ache particularly if he sits for too long and he avoids any

activity that may cause pain including; prolonged sitting, bending and lifting.

He gave evidence that he could not return to his pre injury job because of the

positions he would be required to work in and the fact that he has lost his core

strength. Mr Coates told the court that he is currently certified by Dr Krigsman

as being fit for suitable work with no lifting over 10k9, no repetitive bending or

prolonged sitting.

ln cross examination, he said that he has not completed the Certificate lV

course in Business Management as he has not submitted the required

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3 DECISION

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business plan which he was initially intending to submit in relation to a

nutritional supplement drink but now has decided to prepare it for an aquarium

filtration system. He told the court that in order to submit a business plan he

must manufacture a prototype and provide costings for it which he has not

been able to do because of his limited finances. Mr Coates gave evidence that

he has completed a 6 week "disconnect-re-connect" course which enables

him to provide certification for electrical safety. He also told the court that his

role as a student union chair did not require frequent attendances at the

campuses as he was contactable by phone if a student needed assistance or

referral to the appropriate organisation for assistance. He told the court that

his injury does not prevent him performing the role of student union chair. Mr

Coates agreed that he has previously experienced upper and mid back pain

which necessitated attendances at his doctors in 2005 and 2008. He agreed

that he reported improvement in his back pain to his doctors within a week of

the alleged injury occurring on 15 October. He disputed that he returned to

work on 25 October without giving prior notice to his employer and disputed

that on that date Mr Cole suggested he perform sweeping duties with a broom

which he refused to perform. He agreed that he is not a qualified welder.

A significant amount of cross examination of Mr Coates was directed to

discrepancies in his dates of birth as recorded on documents and in medical

reports tendered in evidence. Mr Coates confirmed that his actual date of birth

is 9 May 1974. However, a number of doctors recorded his date of birth as

being 9 May 1984 as did a number of documents tendered which included; his

job application form with the defendant; an lncome Tax Declaration form; a

Lifecare Registration Form; a document completed for Mr Haig, Orthopaedic

Surgeon, who examined him on behalf of Allianz; a Privacy lnformation and

Consent Form; and, the Workcover Claim Form. Mr Coates explanation for

these incorrect dates was that he has a "bad habit" when writing 8's and 7's

and that his handwriting is "lazy".

4 DECISION

B Mr Coates gave evidence that he was not specifically told on Wednesday 13

October that he would be sacked but was told that he needed to improve his

work quality. He agreed that he understood by his conversation with Michael

and Mr Cole that if it did not improve it was likely that he would be sacked and

agreed that he was told on 14 October that his work output had not improved.

After viewing a 4 minute DVD depicting welding duties at the workbench, Mr

Coates agreed that the welding job is very light but told the court that the

person depicted was performing the job in a seated position whereas he

performed it standing up. He agreed that his back pain has improved and that

he is fit for full time suitable light duties up to 3 days per week or 15 hours and

could possibly work 37 hours a week, depending on the job. He told the court

that he has recently seen a psychologist on 2 occasions but denied he has

been suffering depression since July 2010, but added that, "everyone has

stress in their life". He denied being depressed since July 2010. When

questioned about the types of jobs he has applied for since October 2010, Mr

Coates told the court that they included; an "advisor" to a Pizza shop on how

to improve the business; a salesperson for soy candles; a service technician;

a job putting frets on guitars; and, a part time office bearer position with the

Swinburne Student Union. He said he did not obtain those jobs because they

could not afford him or his skills were not adequate. Mr Coates told the court

that between 1991 and 2008 he was a paid member of the workforce in a

number of different occupations but since 2008 has been concentrating on his

tertiary studies.

Mr Coates admitted during cross examination that he has been a regular

cannabis user and has a prior conviction in 2003 for cannabis possession. He

told the court that he ceased using cannabis in July this year but did find that it

decreased the sensation of pain in his leg. He also told the court that his

medication intake is dependent on his pain level. During cross examination,

Mr Coates was also shown surveillance DVD's depicting his activities on 8

November 2011 and 17 November 2011. The first 4 minute DVD depicted him

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5 DECISION

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shopping at an Aquarium which included him bending down, crouching down

on his knees looking at items on a low shelf, standing for a prolonged period,

bending down to pick up an item he dropped, walking briskly without a limp

and getting into his car with ease. He agreed that the DVD indicated that he

was able to move freely and that he could bend and squat without apparent

restriction. The second 10 minute DVD showed him shopping in Cash

Convertors and depicted him bending forward whilst looking inside a cabinet,

squatting, moving sideways whilst squatting, pulling a speaker out and

manoeuvring it on his left knee whilst in a squatting position, standing for a

prolonged period, walking briskly and getting into his car without apparent

difficulty. Mr Coates agreed that the DVD indicated that he could move freely

without apparent restriction. He disagreed with the proposition that it is

convenient for him to stay off work so that he can attend University to study

and engage in student union activities. Mr Coates did agree that he does not

take a significant amount of medication and that he is fit for a wide range of

suitable employment positions.

Mr Cole, Managing Director and Owner of the defendant company gave

evidence. He told the court that he employed Mr Coates on the

recommendation of another person and after he had interviewed him. He said

the Mr Coates told him that he was a qualified metal worker and agreed with

the evidence given by Mr Coates of the duties he was required to perform in

the workshop and at Swinburne University. Mr Cole told the court that he

began to receive complaints from Jason, a supervisor at Swinburne that he

could not work with Mr Coates because of his attitude and the fact that he

went "missing" on the job. As a result of this complaint Mr Cole said he

attended the University and spoke to Mr Coates who told him that he was

being picked on by other workers. Mr Cole gave evidence that he called a

meeting on Friday I October to try and "nip the problem in the bud" but Mr

Coates failed to attend. He told the court that he directed Mr Coates to return

to the factory to work on Monday 11 October but he did not show up for work

6 DECISION

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that day. He confirmed that Mr Coates was absent on Tuesday 12 October

and then returned to work at the factory on Wednesday 13 October. He gave

evidence that he and Anthony, the second in charge, spoke to Mr Coates and

told him that they would monitor his performance. He said that on Thursday

14 October, he told Mr Coates that his work was not up to standard and on

Friday morning, 15 October he told Mr Coates that they would have a meeting

later in the day. Mr Cole told the court that in his opinion Mr Coates knew on

Wednesday 13 October that he was to sacked on Friday 15 October. He said

that around lunchtime on 15 October, Mr Coates told him, "l think l've hurt my

back". He responded by saying; "Did you or didn't you, you must know" to

which Mr Coates responded, "l think so". Mr Cole told the court that Mr Coates

returned to work on 25 October without prior warning and gave him workcover

light duty certificates. He told the court that he suggested to Mr Coates that he

could perform work "sorting screws" and that approximately 20 minutes later

Mr Coates reported to him that he had hurt his back again. Mr Cole told the

court that Mr Coates then left the factory and has not returned since that date

apart from lodging his Workcover Claim Form on 26 October. Mr Cole agreed

that he sent a letter to Allianz dated 27 October 2010, setting out what he

regarded were Mr Coates performance issues and the discussions that had

occurred with him prior to 15 October and that they were to "let him go" at the

end of day in question and that he was aware of it.

ln cross examination, Mr Cole agreed that he did not personally observe the

quality of the work performed by Mr Coates. He agreed that during the

morning of Friday 15 October, he told Mr Collins that he would be sacking Mr

Coates at the end of the day but did not tell Mr Coates. He agreed that tig

welding can be performed sitting or standing and that in his statement to an

investigator he did say that he gave Mr Coates the option on 25 October of

working with screws, tig welding using a chair, or pushing a broom.

7 DECISION

Medical Evidence

12 Dr Teh gave evidence and a medical report prepared by him dated 4 April

2012 and his clinical records were tendered. The clinical records reveal that

Mr Coates attended the practice on the following occasions relating to prior

back complaints; 28 September 2005 - right upper back; 7 October 2008 -middle back pain between shoulder blades; 18 November 2008 - hurt lower

back at gym. The records reveal that Mr Coates attended on 15 October at

4.22 p.m. and provided a history that he had injured his right lower back that

morning when he leaned down to weld on a bench. Dr Teh prescribed

Voltaren and Panadeine Forte medication. On 19 October he recorded that Mr

Coates told him that his back pain had improved and that he only needed to

take panadeine forte at night. On 22 October, he recorded a further

improvement in back pain and provided a workcover light duties certificate

from 25 October. The records indicate that on 25 October, at 12.57 p.m. Mr

Coates attended and Dr Teh obtained a history from Mr him that he had

returned to work that morning and was put on the same type of work which

aggravated his back pain. On 1 Novemberand 18 November, DrTeh

obtained a history of intermittent right leg pain and from 21 December until 14

February 2011 he recorded ongoing back pain but there was no further history

of right leg pain. On 14 February, the records indicate that Mr Coates

requested stronger medication which Dr Teh did not agree to which resulted in

Mr Coates changing doctors to Dr Krigsman. In his report dated 4 April 2012,

Dr Teh opined that as at 14 February 2011, Mr Coates remained

incapacitated for his pre injury employment. ln cross examination, Dr Teh told

the court that it is not unusual for leg pain to occur weeks after an initial back

injury where the disc protrusion worsens. Dr Teh confirmed that he referred

Mr Coates for physiotherapy treatment and to Dr Van Wetering, Sports

Physician.

13 Dr Krigsman gave evidence and his medical report dated 10 October 2012

B DECISION

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and clinical records were tendered. The records reveal that Mr Coates first

attended his clinic on 7 March 2011. Dr Krigsman obtained a history from Mr

Coates that he sustained his back injury on 15 October 2010 when welding on

a bench whilst he was leaning to the left fully flexed. On 1 April 2011, Dr

Krigsman obtained a history that Mr Coates had been told by his boss that it

was his last day before the injury occurred. He also told Dr Krigsman that he

returned to work on the same duties, was given an office chair but after g0

minutes his back pain recurred. Further entries revealed an improvement in

Mr Coates condition and on 22 August 2011, Dr Krigsman certified Mr Coates

as being fit for 15 hours work from B August. On 2 April 2012, Dr Krigsman

noted a complaint of back pain and right sided sciatic pain and that Centrelink

assessed his job capacity at 15 hours per week and that he was trying to find

work through the assistance of EACH - a disability services employer. On 27

July 2011, Dr Krigsman recorded that Mr Coates told him he had been

depressed for over 12 months and was receiving osteopathic treatment.

In his report, Dr Krigsman stated that Mr Coates has a prolapsed disc at

L5/S1 with right leg sciatica and associated depression since July 2011. Dr

Krigsman opined that Mr Coates is incapacitated for his pre injury

employment, requires an MRI and ongoing psychological counselling for his

depression. Attached to his report was an MRI Scan of the lumbar spine dated

27 January 2011 where the radiologist concluded that there is an extruded or

sequestrated disc extending superior to the disc at Ls/S1 with slight posterior

displacement and likely irritation of the traversing right S1 nerve root. ln Gross

examination, Dr Krigsman told the court that he was under the impression that

Mr Coates had told him that he had been depressed prior to sustaining the

back injury on 15 October 2010. He told the court that Mr Coates is fit for

suitable work, is able to perform his role on the student council as he has a

capacity for non physical duties. He agreed that he certified Mr Coates as fit

for suitable work 37 hours per week between December 2011 and March

2012 but reduced his capacity to 15 hours per week thereafter because Mr

I DECISION

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Coates had informed him that he was feeling worse than before. He agreed

that Mr Coates medical condition is improving and that his symptoms have

decreased and that he has a wide capacity for employment.

Dr Richter, Osteopath, gave evidence and a medical report prepared by him

and dated I October 2012 was tendered. The report indicates that Mr Coates

has been attending the Macfarlane Clinic for treatment since 4 April 2012 with

complaints of low back and right leg pain aggravated by general activity and

load bearing. Dr Richter reported that Mr Coates has expressed that his pain

has decreased significantly after commencing osteopathic treatment and that

he is increasing his functional strength at the gym and maintaining his

stretches. He opined that the reported mechanism of flexion, rotation and load

at a workstation which was "too low" is consistent with an injury to a lumbar

disc as confirmed on the MRI scan. Dr Richter expects continuing

improvement with an expectation of Mr Coates being able to return to full time

work in the next 6 months or so. He does not believe Mr Coates will be able to

return to his pre injury employment. ln cross examination, Dr Richter told the

court that Mr Coates indicated that he experienced pain in the centre of his

back and not to the right side together with pain extending to the right thigh

and calf. He also told the court that he is providing Mr Coates with soft tissue

massage, stretching, manipulation and self management techniques at home.

The records of Mr Brown, Physiotherapist were tendered which indicate that

Mr Coates received physiotherapy treatment between 29 October 2010 and

30 May 2011. A report of Mr Brown dated 1 1 December 2010 indicates that

he provided Mr Coates with hands on therapy, mobilising and exercise. He

recommended that an MRI scan be performed.

The medical records of Dr Van Wetering were also tendered. lncluded in

these records is a report from Dr Gomes, the Neurosurgery Registrar at

Austin Health. That report indicates that Mr Coates was reviewed on 29 July

2011 and his mild sciatica had resolved. He also noted that although the MRI

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scan demonstrates a disc bulge at the right L5/S1 level, the straight leg raise

test was negative and Mr Coates did not have any clinical signs of nerve root

impingement. Dr Gomes reported that Mr Coates condition was improving and

surgery was not required. Dr Van Wetering then reported to Dr Krigsman that

in his opinion Mr Coates could not return to pre injury employment because of

the awkward positions that are necessary and the repetitive nature of that

work.

Mr Kierce, Orthopaedic Surgeon, gave evidence on behalf of Mr Coates . Mr

Kierce examined Mr Coates on 7 March 2012, on behalf of his lawyers. ln his

initial report dated 7 March 2012 he obtained a history of injury from Mr

Coates which was consistent with the evidence he gave to the court. Mr

Coates told him that he was suffering from low back pain, mainly right sided,

radiating down the outer side of his right thigh and outer right calf onto the top

of his right foot. He also gave Mr Kierce a history of increasing symptoms with

over activity such as jogging, sitting for more than one hour, lifting, bending

and coughing. Mr Coates also told Mr Kierce that he has suffered with

depression since the injury and takes Temazepam and between 0-4-6

Panadeine Forte a day. On examination, Mr Kierce found that Mr Coates

walked without a limp, was tender over the interspinous ligament between L4

and L5 but could not detect neurological abnormalities in his lower limbs or

wasting. Mr Kierce examined the MRI Scan which he found to be consistent

with Mr Coates sustaining a lumbosacral disc prolapse caused by work

activity on 15 October 2010. He opined that Mr Coates prognosis is good

providing he is not involved in work which involves prolonged or frequent

bending, the lifting of weights greater than 15k9, the use of heavy jarring

implements such as picks, shovels and crowbars or the driving of machinery

which gives rise to vibrations. He also noted that it is possible that Mr Coates

may require surgery to remove the sequestrated disc if his sciatica becomes

worse and he develops neurological signs.

11 DECISION

19 Mr Kierce provided a supplementary report dated 4 May 2012 after being

provided with reports from Mr Haig, Orthopaedic Surgeon, who assessed Mr

Coates on behalf of the defendant on 16 November 2010 and 11 January

2012 and a DVD of the work activities said to have been performed by Mr

Coates when he sustained his injury. After questioning the "veracity" of the

duties depicted in the DVD, Mr Kierce confirmed his opinion that the

mechanism of injury was consistent with the history given to him by Mr Coates

and that in his opinion, he sustained a disc prolapse and would not be fit to

carry out the activities depicted in the DVD. ln cross examination, Mr Kierce

told the court that right sided back pain as described by Mr Coates was

consistent with him having sustained a prolapse. He disagreed with the

opinion of Mr Haig that typically a person would suffer central back pain and

that it was unusual to experience right sided symptoms. He disagreed that his

examination of Mr Coates was essentially normal and noted that he has

limited flexion and extension. Despite the delay between the incident on 15

October 2010 and the MRI being performed on 25 January 2011, Mr Kierce

told the court that he had a reasonable degree of certainty that the prolapse

occurred on 15 October although the scan obviously cannot date the injury.

Whilst accepting the proposition that the disc can re-absorb he said that it is

more likely that Mr Coates will suffer recurrent back ache. When questioned

about the activities depicted on the surveillance DVD, Mr Kierce told the court

that it is possible for those with disc injuries to have "good and bad" days and

the amount of activity would also be dependent on whether a person was on

medication at the time and the amount of medication being taken. He told the

court that in his opinion, based on the MRI and his clinical examination of Mr

Coates, that he has sustained a disc injury and is fit for light duties only.

Mr Haig, gave evidence on behalf of the defendant and medical reports

prepared by him and dated 25 November 2010, 30 January 2012 and 29

March 2012 were tendered. ln his first report, Mr Haig questioned the veracity

of Mr Coates description of the mechanism of injury and reported that his

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12 DECISION

clinical picture and physical examination were not consistent with his reported

symptoms. As a result of being provided with a copy of a letter from Mr Cole

dated 27 October 2010, Mr Haig noted that "the fact that Mr Coates had been

advised of his employment being terminated and developing low back pain

later that very day does raise questions about the aetiology of the pain". On

physical examination, he could not find any evidence to support an injury

being caused by leaning to the left whilst welding. Mr Haig also found it

surprising that Mr Coates complained of symptoms 5 weeks after the alleged

incident. However, he stated that if Mr Coates complaint was genuine he

should not return to his pre injury employment but would be capable of

performing modified or alternative duties. After his second examination on 11

January 2012, Mr Haig reported, after being provided with numerous medical

reports and the MRI Scan, that Mr Coates did sustain a prolapsed disc at or

around the time of the work related injury at the L5/S1 level. ln hindsight, he

accepted that Mr Coates did suffer a work related injury and would be fit for

suitable work not involving bending and twisting or heavy or repetitive lifting.

He recommended that Mr Coates take analgesic medication as required.

Mr Haig provided a supplementary report dated 29 March 2012 after being

provided with the DVD of the alleged work activity Mr Coates was performing

when he alleged he was injured. He noted that he had given Mr Coates the

benefit of the doubt in his last report based on the MRI Scan but after viewing

the DVD questioned how any aspect of the work depicted would have caused

any significant low back injury on the basis that it did not demonstrate twisting

and the welding apparatus appeared to be the size of a pen. Mr Haig opined

that Mr Coates did not sustain an injury and is fit for his pre injury duties. ln

evidence, Mr Haig told the court that Mr Coates complaint of right sided low

back pain is not a typical symptom associated with a disc prolapse as the pain

usually occurs closer to the centre of the back. ln cross examination, Mr Haig

conceded that a disc prolapse can occur as a result of minimal trauma in a

degenerate back and was likely to have occurred in these circumstances, if it

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is accepted, that Mr Coates was leaning fonruard, to the left whilst welding at a

low work bench. He also conceded that it is possible, although most unlikely,

that a person can experience right sided low back pain when suffering a disc

prolapse at LS/S1.

Gonclusion

I found Mr Coates to be a genuine and credible witness. I accept his evidence

as being truthful that he experienced right sided low back pain when

performing welding duties at the work bench on 15 October 2010. I find that

he performed this job whilst standing, leaning fonruard and to the left which

placed significant strain on his low back resulting in a prolapse of his L5/S1

disc as subsequently confirmed on the MRI scan taken approximately 3

months later. Whilst I accept that the welding duties appeared to be light in

nature, as depicted on the DVD, the fact is that Mr Coates elected to perform

these duties in an upright position and not seated, as depicted on the DVD,

His description of the activity he was performing at the time he experienced

low back pain is consistent with the mechanism of injury as accepted by all

medical practitioners, including Mr Haig.

I do not find the credit issues raised in relation to him giving his incorrect dates

of birth to some or the surveillance material to be of such significance so as to

detract from accepting that he was a witness of truth. lt is likely that providing

an incorrect date of birth was not done with the intention to deceive but more

likely due to issues of "vanity". The surveillance DVD demonstrated a lack of

apparent restriction and being able to bend, squat and move freely without

being in pain. I do not find this material to be damaging to his credit. Mr

Coates conceded that as at November 2011 his condition was continuing to

improve and he and his doctors considered him to be fit for suitable duties at

that time. I accept that Mr Coates was aware that it was likely he would be

dismissed at the end of the working day on Friday 15 October 2010 due to

poor performance and the fact that he was unsuitable for this type of work.

14 DECISION

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However, I do not accept the defendant's proposition that Mr Coates has, in

effect, manufactured this claim.

I find that Mr Coates has been incapacitated for his pre injury employment

from 15 October 2010 because of the back injury which arose out of and in

the course of his employment. The activities depicted in the DVD are only a

small part of the duties he was required to perform with the defendant. Whilst

they may have been light in nature, the work performed by him when working

at Swinburne University were more arduous as he described to the court. His

description of these duties was not challenged by the defendant. He is not fit

to return to his full pre injury duties because of the back injury he sustained.

However, I find that he is fit for a wide range of suitable light duties as stated

by Mr Kierce and Mr Haig. He is an intelligent man with considerable skills as

has been demonstrated by him in his work history, the types of jobs he has

applied for since being injured and the number of University courses he has

partially or fully completed. The surveillance DVD and the activities he has

engaged in with the student body demonstrate that he has a capacity for a

wide range of employment activities, as he in fact concedes. I find that he has

had a capacity for suitable employment from I August 2011 being the date on

which Dr Krigsman ceÍified him as being fit to return to work up to 15 hours

per week.

Accordingly, Mr Coates is entitled to weekly payments of compensation and

reasonable medical and the like expenses from 15 October 2010 in

accordance with the provisions of the Act.

15 DECISION