Allardyce v Esso Australia
[2019] VMC 7
•26 AUGUST 2019
IN THE MAGISTRATES’ COURT OF VICTORIA
AT LATROBE VALLEY
WORKCOVER DIVISION OF COURT
Case No. H11882790
| CRAIG ALLARDYCE | Plaintiff |
| v | |
| ESSO AUSTRALIA PTY LTD | Defendant |
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MAGISTRATE: | S GARNETT |
WHERE HELD: | LATROBE VALLEY |
DATE OF HEARING: | 30 & 31 JULY 2019 |
DATE OF DECISION: | 26 AUGUST 2019 |
CASE MAY BE CITED AS: | ALLARDYCE V ESSO AUSTRALIA |
MEDIUM NEUTRAL CITATION: | [2019] VMC007 |
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CATCHWORDS – Accident Compensation Act 1985 – Workplace Injury Rehabilitation and Compensation Act 2013 – Limited claim for weekly payments of compensation and reasonable medical and the like expenses for aggravation of cervical spine condition – Allegation of repeated ‘head knocks’ in course of employment between 2009 and 2015 whilst working as a Platform Mechanic on offshore Platforms in Bass Strait – Liability denied.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Horner | John McCristal Injury Lawyers |
| For the Defendant | Mr Scully | Thomson Geer |
HIS HONOUR:
Mr Allardyce has been employed with the defendant since 25 May 2009 as a Platform Mechanic. He alleges that throughout the course of his employment he regularly ‘bumped’ his head on spool work and scaffolding on the defendant’s offshore platforms in Bass Strait resulting in injury to his neck.
Mr Allardyce lodged a Workcover claim form dated 23 November 2016, asserting that on 20 March 2014, he sustained “prolapsed discs in his cervical spine causing spinal nerve compression” as a consequence of “workplace aggravation of pre-existing condition due to infrequent bumping of head on low spool work, scaffold and structures over 7 years of employment offshore”.
The defendant by way of Notice dated 14 December 2016, provisionally rejected his claim pending receipt of medical evidence and appropriate medical certificates. By way of Notice dated 14 February 2017, the defendant formally rejected his claim on the basis that; he had not sustained an injury which arose out of or in the course of his employment and employment was not a significant contributing factor to any claimed injury. The defendant relied on these defences in the proceeding notwithstanding that other defences were raised in the pleadings.
Mr Allardyce gave evidence and was subject to cross-examination. The parties tendered numerous documents including incident report records, first aid entries, emails, medical records, reports and radiological reports.
Mr Allardyce claims weekly payments of compensation for the period 2 November 2016 until July 2017, the date on which he returned to work on full duties together with reasonable medical and the like expenses, including the costs associated with the surgery he underwent on 5 December 2016.
The evidence revealed that Mr Allardyce previously served in the Australian Army between 13 January 1982 and 7 July 2002 and that during his period of service, he sustained the following injuries; a left shoulder injury for which he underwent surgery in 1985; an accepted Commonwealth Compensation Claim for lumbar spondylosis; a left and right knee osteoarthritic condition and cervical spondylosis.
Mr Allardyce gave evidence that he is aged 53 years and after completing year 10 at school commenced a motor mechanic apprenticeship with the Army in 1982. He said that during his service he sustained multiple dislocations to his left shoulder from 1985 which required surgery and he also experienced low back pain during the 1980s. He denied sustaining any injury to his neck and the Defence Medical Discharge report dated 30 April 2002, which was tendered, indicates that the only medical issues he had at that time were a loss of hearing, pain in his knee joints and restriction of movement of his left arm due to his previous left shoulder dislocation.
Mr Allardyce told the court that after ceasing his service in the Army he was employed in various occupations including; a picker, mechanic and diesel mechanic. He said that he obtained employment with the defendant in May 2009 after completing a pre-employment medical examination. He told the court that his duties as a Platform Mechanic required him to work on various gas platforms operated by the defendant in Bass Strait. He gave evidence that his hours of employment were, 12 hours per day x 7 days per week from 6 AM to 6 PM, one week on and then one week off. He told the court that the Platforms had segregated bays, were poorly lit, were cluttered with temporary scaffolding for days, weeks and even months at a time. He said that his working gear included wearing a standard white plastic helmet with a brim which caused visibility issues when walking or moving around the platform because of the overhead obstructions.
Mr Allardyce told the court that he struck his head on these obstructions on numerous occasions. He told the court that he was required to report such incidents to the platform supervisor and if the incident resulted in an injury, he would attend the first-aid centre. However, he said that he did not report these incidents on all occasions but estimated he would strike his head “at least 10 times per year”.
Mr Allardyce gave evidence that in early 2014, he was experiencing pain in his left and right arms and attended Dr Arnould who referred him to Mr Timms, Neurosurgeon for an opinion. He told the court that he continued working, received physiotherapy treatment, performed exercises and took Lyrica from time to time. He said that on 16 May 2015, whilst working on the Halibut Platform, he “bumped his head” on a low scaffolding tube which he reported on 18 May. (The incident report indicates that such an incident took place without naming Mr Allardyce as the reporter). The report tendered indicates that Mr Allardyce told his supervisor Mr Wigg, that he woke up with a sore neck on 18 May which he attributed to “bumping head on low scaffold tube in L8 area the previous day”. The report also recorded that the area was poorly lit, and the scaffold was over the top of the work way. The defendant conceded that the said incident relates to Mr Allardyce.
Mr Allardyce told the court that he reported this incident because he experienced a sore and stiff neck and headaches when he woke the following day. He said that he did not attend the medical centre because there was “nothing they could do” and he was due to return to shore the next day. (The First Aid Treatment Summary tendered by the defendant indicated that he attended the First Aid Centre on 18 May due to a sore neck and was given 2 Panadol tablets). He also said that he did not attend any doctor when onshore for treatment at that time and that when he returned to work seven days later his “pain resolved slightly, but he was on a downhill slide over the next few months”.
Mr Allardyce gave evidence that on 4 November 2016, (some 18 months after the incident on 16 May 2015), he attended Dr Emonson who referred him to Mr Timms for an opinion. He told the court that Mr Timms arranged for him to undergo radiological investigation and then proceeded to perform an anterior cervical discectomy fusion and partial vertebrectomy at C5-6 and C6-7 on 5 December 2016. He told the court that he remained off work until June 2017 when he was able to return on light duties and reduced hours at the Longford training ground. He said that he then returned to work on full duties one month later.
During examination in chief, Mr Allardyce told the court that during the Accident Compensation Conciliation process, he was provided with a document by the defendant’s representative which referred to “head strikes” reported during the period 2011-2014 only. He told the court that the document, which was tendered, does not cover the period from 2009 to 2011 or from 2015 nor does it identify the names of those making the reports and he is therefore unable to identify if any of those recorded incidents refer to him. The document indicates that for the period 15 December 2011 to 13 October 2014 employees had reported on 27 occasions that they had struck their head on various objects in the course of their work.
Mr Allardyce told the court that since his return to full-time duties in July 2017, the defendant now provides a helmet with a transparent brim which allows for greater overhead visibility. He also told the court that he ceased work on 6 March 2019 for non-work-related back problems for which he underwent a micro-discectomy at the L3-4 level performed by Mr Timms.
During cross examination, Mr Allardyce confirmed that prior to lodging his WorkCover claim form dated 23 November 2016, he had made enquiries with the defendant about his sick leave entitlements. A copy of the relevant emails was tendered which indicated he informed the company that he had only put in a WorkCover claim because the company were slow in responding to his request for sick leave. Mr Allardyce also confirmed that he only reported incidents when he determined that he would require first-aid treatment and agreed that he did not seek treatment following all alleged incidents. In relation to the incident on 16 May 2015, which he described during his evidence as being; the “serious one”, the “worst one” and a “major head clash”, he agreed after referring to the first-aid treatment summary (which was tendered) that he had complained of a “sore neck” and was prescribed two Panadol tablets. He agreed that that incident did not require him to take time off work and then he did not seek any medical treatment from his own treating practitioners. Mr Allardyce conceded that the first time he reported the “head knock” incidents to his treating doctors was on 25 November 2016.
Mr Allardyce agreed that he had previously experienced and complained of neck, mid thoracic and shoulder pain in 2013 and 2014 but had not previously reported to any of his treating doctors of being involved in at least “10 head strikes” each year. He disputed that he had previously reported suffering from neck pain whilst in the army but conceded he was wrong when presented with a medical report from Dr Dyer from the Department of Veteran Affairs dated 30 September 2014 which indicated he had; a restricted range of movement of the cervical spine; had experienced severe pain that is often present at rest but which does not respond adequately to medication or therapeutic measures; that he experiences a loss of or alteration to sensation of his left upper limb as a result of cervical spondylosis; that he uses his left limb inefficiently in all circumstances together with a major loss of left sided digital dexterity which causes him difficulty in handwriting or manipulation of everyday domestic objects; reduced left-handed group sensation and excessive fatigue in the left upper limb. (The medical report of Dr Dyer indicated that his symptoms were not solely due to cervical spondylosis but also due to cervical disc prolapse at C5/6 and C6/7).
When questioned about lodging a Military Compensation Claim for cervical spondylosis and cervical disc prolapse, Mr Allardyce indicated that he had, but “not per se”. A letter from the Department of Veteran Affairs dated 6 November 2015, indicated that a Delegate of the Military Rehabilitation and Compensation Commission had determined that Mr Allardyce had suffered cervical spondylosis to which his military service contributed in a ‘significant degree’ as at 31 March 2014, being the date, the diagnosis was confirmed by way of an MRI scan. Another document tendered, indicated the claim form was signed by Mr Allardyce on 4 February 2015 with a claimed date of injury being 13 January 1982 (the date he commenced his Army service) as a consequence of “running in boots, lifting, carrying, jumping from heights i.e. vehicles”. It also records:
went through the service medical docs. No neck problems were noted on entry medical. Most docs relate to left shoulder problems and surgery. However there are no docs concerning his neck. Discharge medical also does not mention any neck problems. Post discharge (2003 to now) he has worked as a mechanic for JJ Richards, MTU Detroit Diesel, Aust Antarctic division and presently for Exxon Mobil. Neurosurgeons letter of 13 May 2014 noted ‘I reviewed Mr Allardyce today who has had 3 to 4 months of neck and left arm symptoms which he cannot really think the cause of….The recent imaging shows disc injuries and osteophyte formation at C5-6 and C6-7 in his cervical spine’. MRI of 31/3/14 is on file. 25/11/14-CMA gave the diagnosis of cervical spondylosis with the onset on 31/3/14. IL questionnaire was completed by Mr Craig Timms, his treating specialist. He diagnosed C5/6 & C6/7-disc osteophytes. I have used a diagnosis given by the CMA of ‘cervical spondylosis’. ADF contribution was given as ’21-50%’ and described as ‘moderate’. However I am reasonably satisfied that 21-50% contribution can be considered as ’significant’. Based on available evidence, I am reasonably satisfied that the physical nature of his Army service contributed in a significant degree to the causation of cervical spondylosis.
Mr Allardyce was also questioned and accepted as correct the history he gave to Mr Timms on 13 May 2014 as recorded in his report dated 13 May 2014 to Dr Arnould that, “he has had 3 to 4 months of neck and left arm symptoms, which he cannot really think the cause of, but it is really driving him batty”. Mr Allardyce agreed that as at 13 May 2014 he had been employed with the defendant for a period of five years and based on his estimation of “at least 10 head knocks per year”, he would have experienced at least 50 by that date, but had not related his neck pain to those incidents when he was examined by Mr Timms. Mr Allardyce also agreed that he did not provide Mr Timms with a “head knock” history when he was examined by him on 5 August 2016, 17 November 2016, 22 November 2016 and 17 January 2017. He also agreed that he did not provide any such history to Dr Emonson until 25 November 2016, after he had completed his WorkCover claim form on 23 November 2016.
Medical Evidence
A Specialist Referral and Report from the Department of Defence completed by Dr Smith dated 4 August 1998 indicates that Mr Allardyce was referred for physiotherapy treatment as a consequence of experiencing left shoulder pain complicated by recent dislocation surgery. A Preventative Health Examination Form completed by LTCOL Likeman and dated 30 April 2002, indicated that the only medical conditions affecting Mr Allardyce at the time of his discharge were a hearing loss and left shoulder restrictions following dislocation. A Medical Record of the defendant dated 7 February 2013, indicates that Mr Allardyce attended a doctor complaining of stress and anxiety related symptoms with a notation of having “arthritis in back/neck”. A Discharge Summary from Monash Health dated 14 March 2014 indicates that Mr Allardyce attended on that date complaining of mid-thoracic back pain. He was diagnosed as having an unspecified soft tissue disorder. The Clinical Records of the Beaconsfield Medical Clinic were tendered and indicate that Mr Allardyce was seen by Dr Tan on 6 February 2012 regarding back problems and a hearing loss. On 10 September 2012, he saw Dr Arnould and complained of low back, buttock and thigh pain building up over a period of 3 weeks for which he was prescribed medication. On 19 September 2012, he saw Dr Arnould with a possible disc prolapse at L4/5 and was referred to Mr Pullar. In January 2013, he saw Dr Riahifard complaining of stress/anxiety related symptoms and was referred for psychological treatment. On 17 March 2014, he saw Dr Arnould as a consequence of a gradual onset of muscular-skeletal pain without any trauma or injury and was prescribed panadeine forte. On 24 March, he attended Dr Arnould for back pain and was referred for a CT Scan. The CT Scan report noted a complaint of upper thoracic pain over 2 weeks with radiation to the left scapular and shoulder without a cause being identified on the Scan. Mr Allardyce was then referred for an MRI Scan of the cervical and upper thoracic spine which indicated a minimal disc bulge at C5-6, a mild right paracentral disc extrusion at C6-7 with osteophyte formations at C5-6 and C6-7. He was prescribed Lyrica and referred to Mr Timms for an opinion. On 17 July 2014, Dr Dyer obtained a history of Mr Allardyce experiencing pain in his neck, back and knees since his war service and that he wanted to make a Vets claim.
A medical report prepared by Dr Emonson, at the Johnson Street Clinic, Maffra and dated 20 January 2017 addressed to the defendant, was tendered. Dr Emonson noted that Mr Allardyce attended the clinic for the first time on 4 November 2016. He obtained a history from Mr Allardyce that; he had cervical nerve compression in his neck at C5/6 and C6/7, dating back many years, due to diseased discs, the symptoms of which had worsened recently. He told me that his neck conditions had been accepted under SERCA; as related to his previous ADF service. He told me that he had seen a Mr Timms, neurosurgeon in 2014, who had offered him neck surgery, particularly if he symptoms got worse, but that he had declined the surgery at the time. He told me that his symptoms had got worse recently and that he could hardly move his neck and that he had pain running down his arms.
Dr Emonson reported that on examination, Mr Allardyce had a reduced range of movement and had altered sensation in both his upper limbs. He referred him to Mr Timms and provided Mr Allardyce with a regime of pain medication and recommended that he go on sick leave. Dr Emonson reported that on 25 November 2016, Mr Allardyce requested a certificate of incapacity and provided him with a history that he had knocked his head on scaffolding and metal at work on an oil rig on several occasions causing him pain and tingling in the fingers. Mr Allardyce told him that he was not certain of the dates but that he had reported the injuries. Dr Emonson stated that he provided a certificate but advised Mr Allardyce that he was unsure about the interplay between the Department of Veteran Affairs and WorkCover.
At review on 23 December 2016, Dr Emonson took the opportunity to review the history in relation to his neck injury. He was told by Mr Allardyce that he thought that his injury (disc prolapses) were probably due to an exacerbation of a pre-existing condition and degeneration in his neck. Mr Allardyce told him that his work at Esso required him to work offshore on an oil rig where he regularly knocked his head and neck on rig structures. Mr Allardyce told him that he could remember one particular episode in October 2015 when he hit his head on a rig structure and immediately felt pain and jarring in his neck. He said that at that time he thought that he had really hurt something. He told him that he felt that his pain on that occasion was significantly worse than usual, but he had no other neurological issues. He told Dr Emonson that he had had several similar traumas between 2009 and 2015 and that he had a pre-existing osteoarthritis of his neck, but no other significant neck trauma to his neck or head. He also told Dr Emonson that the risk factor for head and neck trauma when working on the rigs included a poor safety helmet visor design and poor light in some places.
Dr Emonson opined that Mr Allardyce’s employment with Esso was a significant contributing factor to his injury on the basis that he regularly struck his head on structures as part of his work duties. He noted that his Army service would have contributed to his condition but was unable to quantify the extent of the interplay. In a report dated 2 November 2017, Dr Emonson noted that Mr Allardyce had returned to work undertaking his pre-injury duties.
A number of medical reports and letters to referring doctors prepared by Mr Timms were tendered. In a letter to Dr Arnould dated 13 May 2014, he stated that he reviewed Mr Allardyce that day who had told him of experiencing 3 to 4 months of neck and left arm symptoms for which he “cannot really think the cause of, but it is really driving him batty”. Mr Timms noted that Mr Allardyce had not had any trauma to his spine, although in the Army, he did injure his left shoulder and underwent a shoulder reconstruction. Mr Timms stated that the symptoms Mr Allardyce were experiencing was probably due to disc injuries and osteophyte formations at the C-5 and C-6 levels. Mr Timms considered that if his symptoms did not settle it would be reasonable to consider surgical intervention in the form of a cervical discectomy and fusion. As previously noted (para 17 above), Mr Timms completed a Medical Questionnaire for the Department dated 5 August 2016, where he expressed an opinion that Mr Allardyce’s Military service and his left shoulder injury sustained during that Military service were contributing factors to his symptoms. In a report to Dr Emonson dated 22 November 2016, Mr Timms stated that the results of the MRI scan which indicated significant neural compression from disc osteophyte formation at C-5/6 and C6-7 was the cause of his ongoing symptoms. Mr Timms recommended that Mr Allardyce undergo surgery in the form of an anterior cervical discectomy fusion with partial vertebrectomy at C5-6 and C6-7 which he then performed on 5 December 2016, the costs of which were paid by the Department of Veteran Affairs.
In a report to Mr Allardyce’s lawyers dated 14 March 2019, Mr Timms stated when questioned about the relationship between the accident and the injury that Mr Allardyce did not specifically report a clear incident that led to his symptoms. Mr Timms reported that he last saw Mr Allardyce on 17 January 2017 at which time he was incapacitated for employment and required ongoing physiotherapy, hydrotherapy and massage to recover.
Mr Allardyce tendered a medico-legal report from Mr J O’Brien, Orthopaedic Surgeon, who assessed him on 18 October 2017. Mr O’Brien obtained a history from Mr Allardyce that in March 2014 he first noticed pain in both arms and subsequently chest pain for which he attended the emergency Department at Casey Hospital believing he may have suffered from a heart attack. He noted that following investigations which did not reveal any cardiac problems, his chest pains resolved, and he continued to undertake normal work although continued to suffer from intermittent burning pain affecting both arms. Mr Allardyce told Mr O’Brien that he believed the symptoms related to the heavy work he was performing and informed him of an incident in May 2014 when he was walking in a dark area, wearing his hardhat, when his head struck a low metal scaffold tube. He told Mr O’Brien that he fell to his knees, severely dazed and then managed to get back on his feet and complete the day’s work. He also said that the following day, he was aware of quite severe neck pain and pain in both forearms together with a significant headache and attended the local medical officer. He told Mr O’Brien that he was subsequently referred to Mr Timms and subsequently underwent conservative treatment. He told Mr O’Brien that his symptoms slowly increased and were aggravated on a number of occasions when he had further episodes striking his head in the course of his employment. He told Mr O’Brien that over time the severity of his neck and arm pain increased as did his headaches and that in October 2016 he was in extreme pain and experienced a loss of strength in both hands, suffered blurred vision and could not stand the pressure of wearing his hard hat. Mr Allardyce informed Mr O’Brien that he subsequently underwent surgery performed by Mr Timms and was able to return to work on light duties in June 2017 before returning to normal duties one month later.
Mr O’Brien also obtained a history from Mr Allardyce that he had served in the Army for a period of 20 years as a diesel mechanic and had undergone surgery of his left shoulder in 1986. He was also told that since then he has experienced fluctuating low back pain for which liability has been accepted by Veteran Affairs as has his cervical spondylosis. After conducting an examination and reviewing the radiological reports, Mr O’Brien noted that on the history provided, Mr Allardyce was involved in an incident in May 2014 causing severe neck pain, headaches and arm pain and was then involved in several further traumatic incidents causing increasing symptoms which forced him to cease work in late 2016. In his opinion, employment is a significant contributing factor to the severe preoperative pathology which has responded well to surgery.
Mr Allardyce tendered a medicolegal report from Mr K Siu, Neurosurgeon, dated 27 April 2018. He obtained a history from Mr Allardyce of an incident in May 2014 where he struck his head against a low metal scaffolding. Mr Allardyce told him that as a consequence he experienced severe neck pain and pain down both upper limbs and headaches. Mr Allardyce told Mr Siu that his neck pain persisted over the years and by October 2016 the pain was severe which resulted in him undergoing surgery. On the basis of the history provided, Mr Siu opined that the incident exacerbated Mr Allardyce’s pre-existing cervical spondylosis.
Mr Allardyce tendered medicolegal reports of Mr Shannon, Orthopaedic Surgeon, dated 19 January 2017 and 2 February 2017 which were obtained on behalf of the defendant. Mr Shannon obtained a history from Mr Allardyce that he first had trouble with his neck in March 2014 without there being any specific incident or injury at that time. Mr Allardyce told him that he wears a helmet and there had been multiple episodes over the years where he has struck his helmet on overhead pipes. He told him that he could not recall any specific report of injury but recalls that in March 2014, he was experiencing pain into the intrascapular region extending to the dorsum and ulnar aspect of both forearms and stabbing scapular pain. Mr Allardyce also told him of a further “head clash” in October 2015 and that due to increasing symptoms by November 2016 he was referred to Mr Timms and subsequently underwent cervical surgery. Mr Allardyce also told Mr Shannon that he had an accepted claim for cervical spondylosis with the Army but could not recall a specific incident or injury during his time in the Armed Services. Mr Shannon opined that Mr Allardyce clearly has significant and long-standing cervical disc degeneration, but it is difficult to quantify the effect, if any, of his employment with either the Armed Services or the defendant. In his opinion, it is consistent that repeated head knocks of which he describes, five or six significant episodes, over the years, could aggravate and/or exacerbate cervical disc degeneration ultimately leading to the development of radicular symptoms requiring radiculopathy, although there does not appear to be any clear correlation between a significant incident or injury and the development of radicular symptoms. Mr Shannon stated that on balance, the degenerative changes in his neck is reasonably attributable to a combination of his age, Army Service and employment with the defendant accepting the history of repeated head knocks, which could have aggravated and accelerated the degenerative changes.
The defendant tendered a medicolegal report from Mr Simm, Orthopaedic Surgeon, dated 12 July 2018. Mr Simm was provided with all relevant radiological reports, clinical records, reports of Mr Timms and Mr Shannon. Mr Simm informed Mr Allardyce that he had sighted reports which; indicated that he had previously suffered from shoulder pain whilst serving in the Army and a physiotherapist at that time had considered the pain was emanating from his cervical spine; and, a report which indicated that in 2001, he had experienced left shoulder pain and left-sided neck pain whilst playing rugby. Mr Allardyce told Mr Simm that could not recall those events. Mr Simm reported that Mr Allardyce recalled an episode in May 2015, when he hit his head in the dark so hard that he was knocked to his knees and that since that time is symptoms worsened.
Mr Simm diagnosed that Mr Allardyce is suffering from cervical spondylosis, which is constitutional and is associated with degenerative changes in the joints and discs at C5/6 and C6/7. In his opinion, Mr Allardyce has made a reasonable recovery. Mr Simm opined that the pathology of the condition is common age-related degenerative changes which in his case was the cause of his pain. Mr Simm stated that the asserted most ‘significant injury’ in May 2015, did not result in any significant change on the MRI scans between 2014 and 2016 to suggest that this incident caused any structural changes. Mr Simm suggested that if there was evidence of experiencing significant neck pain following the alleged incidents and particularly, if that pain interfered with his activities for a period of time, it may be concluded that those incidents caused sufficient damage to the already degenerative structures in the cervical spine to the point where he accelerated those changes and perhaps brought on the symptoms from the degenerative pathology at an earlier stage in his life. However, Mr Simm concluded that on the information provided to him, he was unable to confirm this hypothesis.
Conclusion
The court found Mr Allardyce to be a particularly poor historian and lacking in credibility in relation to the dates of the alleged incidents, the severity of symptoms he experienced and his history of cervical spine symptoms. In relation to the dates of alleged incidents, it is understandable that he could not recall specific dates having regard to the fact that he told the court there were numerous incidents where he had struck his head together with the failure of the defendant to maintain an identifiable register of incidents. The failure of Mr Allardyce to attend the defendant’s First Aid Centre and his own treating doctors following the alleged incidents and injuries and his failure to inform his treating doctors of these incidents until November 2016 has not assisted his claim.
Mr Allardyce’s forgetfulness concerning his prior assertion in 2015 that it was his Army service that caused his cervical symptoms and his failure to recall the lodgement of a compensation claim with the Department of Veteran Affairs for cervical spondylosis as a result of his activities during his army service is not credible.
The medical evidence confirms that he suffers from cervical spondylosis. The issue to determine is whether his employment with the defendant between 2009 and 2016 was a ‘significant contributing factor’, resulting in a recurrence, aggravation, acceleration, exacerbation or deterioration of his underlying and pre-existing degenerative condition which led to him being incapacitated for employment between 2 November 2016 and July 2017 and requiring medical treatment including surgery in the form of an anterior cervical discectomy fusion with partial vertebrectomy at C5-6 and C6-7.
The medical evidence supports a conclusion that Mr Allardyce has an underlying degenerative cervical spondylosis condition which has affected his joints and discs at C5-6 and C6-7. The evidence also indicates that this is a long-standing condition, the deterioration of which has been contributed to by his military service between 1982 and 2002. Mr Allardyce, by his conduct in lodging a Military Compensation claim, for which liability has been accepted, has acknowledged that his Army service activities which included: “running in boots, lifting, carrying, jumping from heights i.e. vehicles” was a contributing factor to the deterioration of his condition.
I accept his evidence that from time to time he “knocked his head” in the course of his employment with the defendant. However, I do not accept that these ‘knocks’ occurred as frequently as he asserted or that they were as significant as he asserted during his evidence. If they were as frequent as he alleges or as significant as he alleges it would be expected that he would have attended the defendant’s First Aid Centre on regular occasions, notified and sought treatment from his treating doctors. The evidence suggests otherwise.
I accept the defendant’s submission that his lodgement of a WorkCover claim appears to have been an ‘afterthought’ because his claim for sick leave entitlements had been delayed by the defendant. The fact that he did not report any of the alleged head knocks to his treating doctors until 25 November 2016, two days after completing his WorkCover claim form, supports this conclusion.
I do find that on occasions Mr Allardyce did ‘knock his head’ on obstructions in the course of his employment with the defendant but those incidents only lead to a temporary exacerbation of symptoms due to his underlying degenerative condition. I find that his failure to experience significant and ongoing symptoms following those ‘head knocks’ or to experience any physical restrictions leads to the conclusion that on those occasions the ‘head knocks’ led to a flare-up of symptoms rather than causing any aggravation, acceleration, exacerbation or deterioration in his underlying and pre-existing degenerative condition. This conclusion is supported by the fact that the incident on 16 May 2015, having been described by him as; the “serious one”, the “worst one”, a “major head clash”, only resulted in him receiving treatment in the form of being given two Panadol when he attended the defendant’s First Aid Centre and was not significant enough for him to attend his treating doctor when he returned to shore.
Furthermore, there is no evidence to suggest that there were any significant ‘head knocks’ or other incidents leading up to his cessation of employment on 2 November 2016. I find that the worsening of his symptoms at that time was due to the natural progression of his underlying degenerative condition and not due to his work activities with the defendant.
On this basis, I find that Mr Allardyce did suffer from symptoms emanating from his underlying degenerative cervical spondylosis condition from time to time in the course of his employment with the defendant, but the incidents he described did not result in an aggravation, acceleration, exacerbation or deterioration of his condition for which his employment was a ‘significant contributing factor’.
Accordingly, his claim is dismissed.
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