Attard v Victorian WorkCover Authority
[2017] VCC 1833
•21 December 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-02114
| JOHN ATTARD | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 November 2017 | |
DATE OF JUDGMENT: | 21 December 2017 | |
CASE MAY BE CITED AS: | Attard v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1833 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – lower back injury – concession that the lower back injury constitutes a compensable injury – concession that the compensable injury has pain and suffering and loss of earning capacity consequences – significant level of degenerative changes in the lower back – whether the plaintiff suffered an aggravation in his employment with NCI Holdings Pty Ltd – comparison between the impairment before that employment and as a result of that employment – whether the aggravation produced the consequences conceded by the defendant
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Petkovski v Galletti [1994] 1 VR 436 and AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309
Judgment: The consequences of the aggravation alone satisfy the statutory definition of seriousness.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Middleton QC with Mr J Fitzpatrick | Zaparas Lawyers Pty Ltd |
| For the Defendant | Mr B R McKenzie | Minter Ellison |
HIS HONOUR:
Introduction
1 The plaintiff is a fifty-seven-year-old man who was born in January 1960 in Malta. He suffered an injury to his lower back with consequences which the defendant concedes meet the test of serious injury for both pain and suffering and loss of earning capacity. This left a number of discrete issues for me to determine, which I will summarise shortly.
2 Mr R Middleton QC appeared with Mr J Fitzpatrick of counsel for the plaintiff, and Mr B McKenzie of counsel appeared for the defendant.
Some relevant background
3 It is necessary to set out some relevant background for the issues raised by the defendant to be properly understood and to be put into context.
4 The plaintiff migrated to Australia in 1981. He was then employed in factory/labouring work before commencing with a company known as Valier in 2002. He was employed on a full-time basis as a press operator and machine operator and a forklift driver.[1]
[1]Plaintiff’s Court Book (“PCB”) 6
5 At some unidentified point in time, the business conducted by Valier was taken over by a company known as Grave. Grave was later taken over by a company known as HP Packaging. It became bankrupt in about July 2012. As a result, the plaintiff’s position was made redundant. In October 2012, NCI Holdings Pty Ltd took over the business. The plaintiff was then re-employed by it as a press operator.
6 Between October 2012 and December 2014, the plaintiff performed arduous physical work. As a result of the injury to his lower back, the plaintiff went from full unrestricted duties in December 2014 to light duties. The plaintiff ceased working for NCI Holdings Pty Ltd in June 2015.
The Plaintiff’s work with NCI Holdings Pty Ltd
7 After the plaintiff was re-employed by NCI Holdings Pty Ltd, he worked from Monday to Thursday from 5.30am to 4.30 pm. He estimated that he worked between 15 to 30 hours’ overtime per week.[2]
[2]Transcript 47
8 The plaintiff described the work he performed as follows:
“16.The Defendant (sic) was involved in the manufacturing of drums including 44 gallon drums and smaller 60 litre drums. My work for the Defendant was very heavy and repetitive. My duties working for the Defendant involved heavy and repetitive work. My duties involved lifting of heavy drums, rolling of heavy drums, stacking of drums into containers, repetitive lifting of boxes and repetitive bending and twisting while working on the presser machine.
17.Up until approximately 2014 there was very little rotation of my duties. This meant that I was doing constant and repetitive heavy lifting, rolling and stacking of drums every day and lifting of boxes and repetitive bending and twisting while working on the pressing machine. In about the middle of 2014 the Defendant began a system of rotating my duties, which meant that I was only doing the heavy work for shifts of 1 to 2 hours before being rotated onto alternative duties.
18.In about December 2014 I injured my back at work while lifting heavy boxes. I had been moving boxes from the dispatch area to the press area. I had been doing this job for a number of hours when I felt the onset of the pain in my lower back. I reported the incident to my team leader Laurie Borg and the Occupational Health and Safety Coordinator, Olga. … .”[3]
[3]PCB 7-8
9 During cross-examination, the plaintiff added that the nature of the work he performed after he was re-employed by NCI Holdings Pty Ltd was significantly different from the work he had performed previously:
Q:“Now, the work that you did at the factory was the same between 2002 and December 2014, wasn't it?---
A:(Direct) No, bit different.
Q:How was it a bit different?---
A: Because I was running the machine. I was running the machine. (Through Interpreter) So I used to do the operating machine but then when I went back my job was taken up by somebody else, so I had to do the pressing, a very hard job still.”[4]
[4]Transcript 39
10 During re-examination, the plaintiff gave further evidence of that difference:
Q:…You just said to my learned friend that you wouldn't have gone back to work, working on the press, no one wanted to work on the press. I want you to describe to His Honour, through the interpreter, what work you did on the press?---
A:It was my job, and I had to bend under the shelves. Lifting the boxes. (Direct) About 15 to 20 kilos each one. (Through Interpreter) About 15 to 20 kilos each one. So I used to open the box, take out the – what’s called the flanges. (Direct) Bend, always bend, and put the top and bottom – put the top. (Through Interpreter) So I used to put the top of the drum inside the machine – insert the top of the drum in the machine. (Direct) And twisting (indistinct), bending, (indistinct) was 2000 a day. (Through Interpreter) I had to twist and I had to bend and I had to do about 2000 a day of this.
Q:And why didn't other people want to work on the press?---
A:(Direct) It too hard. (Through Interpreter) Because it was too hard.
Q:Use your native language please?---
A:It was too hard.
Q:Okay. (indistinct), His Honour?---
A:Sorry.
Q:When did you start working on the press?---
Q:What time after your commencement with NCI did you start working the press?---
A:As soon as I started back.”[5]
[5]Transcript 46-47
11 During re-examination, the plaintiff also said that he spent most of his working day operating the press machine described in his affidavit and in his earlier oral evidence.[6]
[6]Transcript 48
The pre-existing lower back condition
12 The defendant submitted that the plaintiff had an actively symptomatic lower back condition before he began working for NCI Holdings Pty Ltd. I reject that submission.
13 The plaintiff admitted that he suffered “some lower back pain” in about November 2011.[7] He saw Dr Sleaby, general practitioner, on 26 November 2011. Dr Sleaby’s clinical note of that date is as follows:[8]
“works hp steel for 10 years gradual onset of lowe rback
Lower Back Injury sustained at work, reported on the 21st of November. Pt work at HP Steel making steel drums and sustained back injury after heavy lifting.”
(sic)
[7]PCB 5
[8]PCB 164
14 Dr Sleaby referred the plaintiff to have a CT scan. The clinical note also refers to the prescription for Brufen and Celebrex, but they appear to have been prescribed for a pre-existing right knee condition.
15 The next occasion when the plaintiff saw Dr Sleaby complaining of a lower back problem was on 3 December 2012 which I will return to later. I will also return to the appearances on the CT scan later.
16 The defendant submitted that the degree of disablement resulting from the pre-existing lower back condition is evident from a medical report prepared by Dr Sleaby on 12 September 2012 in support of an application by the plaintiff for a disability support pension.[9]
[9]Defendant’s Court Book (“DCB”) 5-12
17 The particular part of the medical report which the defendant emphasised was on page 6.[10] Dr Sleaby referred to the plaintiff suffering “Back pain” in answer to question number four, which is as follows:
“Does the patient have any other medical conditions that are generally well managed and that cause minimal or limited impact on ability to function?”
[10]DCB 10
18 The condition is referred to as “Back pain”. The treatment is described as “Painkillers NSAIDs”.
19 In answer to a question whether significant improvement was expected, Dr Sleaby ticked the “Yes” box.
20 In relation to the impact on the plaintiff’s ability to function, Dr Sleaby wrote: “Cannot bend, lift, pull, push or twist.”
21 The plaintiff denied that the condition, treatment and impact on his ability to function is accurate. During cross-examination, that part of the medical report was put to him:
Q:“Madam Interpreter, could you read the next box to Mr Attard again. It's under the heading, ‘Impact on ability to function’, ‘Cannot bend, lift, pull, push, or twist’?---
A:But I recovered, and I still kept working.
Q:You told Dr Sleevey (sic) in September 2012 that you couldn't bend lift, pull, push, or twist; is that what happened?---
A:Yes, at that time, that was the case, but then I came better.
Q:So at that time - that was 12 September 2012 - and you started work with this company on 1 October 2012; does that sound right?---
A:On 1 October 2012 - because I was okay, I was healed. I needed the money as well. A wife and children.
Q:What I suggest to you is that you had problems with your back on 12 September 2012 that was so serious, your doctor was certifying you as being unable to bend, lift, pull, push, or twist, so that you could get a disability support pension. What do you say to that?---
A:But then I came good. The shoulder was a little bit out of whack.
Q:I suggest to you that you didn't come all right, that the back continued to give you problems, in terms [of] bending, lifting, pulling, pushing or twisting. What do you say?---
A:If I didn't come good, nobody would have done my job for more than one hour.”[11]
[11]Transcript 42-43
22 The plaintiff repeated that same evidence with the same emphasis during re-examination.[12]
[12]Transcript 48-49
23 There are a number of reasons why I accept the plaintiff’s evidence that the incidence of lower back pain in November 2011 is of no significance. These are as follows.
24 Firstly, after seeing Dr Sleaby on 26 November 2011, there is no other entry in the clinical notes of any follow-up medical treatment nor anything to suggest that he was prescribed medication to specifically treat the onset of lower back pain.
25 Secondly, the medical report was not compiled with the advantage of a contemporaneous medical examination. So the only inference that may be validly drawn is that Dr Sleaby was relying on his memory and clinical notes to produce the medical report.
26 Thirdly, in the absence of any contemporaneous complaint from the plaintiff or other evidence from Dr Sleaby, it is a mystery how he could conclude that the plaintiff could not bend, lift, pull, push or twist due to a persisting lower back condition.
27 Fourthly, within a matter of a few weeks the plaintiff was re-employed in his old job by NCI Holdings Pty Ltd performing the arduous work which he described in his affidavit and in his oral evidence. His return to work is capable of a compelling inference that the plaintiff was not disabled to anywhere near the extent described by Dr Sleaby, and strongly points to what Dr Sleaby opined as being wrong.
28 Within two months or less of the plaintiff being re-employed by NCI Holdings Pty Ltd, he experienced pain in his lower back, for which he saw Dr Sleaby on 12 November 2012. Dr Sleaby’s clinical note is not overly informative. It simply records that the plaintiff had experienced lower back pain since the previous Thursday. The clinical notes refer to prescriptions for Tramadol and Celebrex. It is clear that the prescription for Tramadol was “added” which I take to mean that it was a new medication whereas Celebrex had been prescribed previously for the treatment of other unrelated medical conditions.
29 The question is whether the pain which the plaintiff experienced in his lower back in December 2012 is related to the manifestation of lower back pain which occurred in November 2011, or whether it is a consequence of the arduous work the plaintiff was performing after his re-employment, or whether it is merely coincidental. The plaintiff was not treated again for any lower back condition by Dr Sleaby until 16 February 2015. Under cross-examination, the plaintiff said that he could not remember being treated for lower back pain in December 2012.[13]
[13]Transcript 50
30 It is difficult to know what to make of the incidence of lower back pain in December 2012 because unlike other entries in the clinical notes made by Dr Sleaby, there is no mention of any cause of the lower back pain.
31 I think the only conclusion I can come to is that the plaintiff experienced lower back pain for which he required no other treatment than the prescription of medication. It seems to me to be inconsequential in the absence of any other evidence linking it to a prior lower back condition or the arduous work the plaintiff was performing upon his re-employment by NCI Holdings Pty Ltd.
Diagnosis of a compensable injury
32 The plaintiff first saw Dr Oppenheimer, general practitioner, on 16 December 2014 after he suffered the more acute pain lifting boxes on 14 December 2014. Dr Oppenheimer recorded a history that the plaintiff had been suffering lower back pain “for the past few months” which was gradually worsening. He also recorded that it was when the plaintiff was “lifting heavy boxes” that he “felt sudden central lower back pain radiating to his sides”.[14]
[14]PCB 37
33 Dr Oppenheimer referred the plaintiff to have a CT scan which was taken on 16 January 2015.[15] He agreed with the conclusions reached by the radiologist which I will return to a little later in these reasons. He concluded that the plaintiff had suffered an acute aggravation of chronic lumbar disc degeneration.[16]
[15]PCB 110
[16]PCB 38
34 The plaintiff was subsequently referred to Dr Stockman, rheumatologist, for treatment. The plaintiff had previously seen Dr Stockman for unrelated medical conditions. The plaintiff saw him on 29 January 2015 specifically in relation to the lower back injury. Dr Stockman obtained a history that the plaintiff had been engaged in arduous physical work for about thirteen years.
35 Dr Stockman looked at the CT scan, and after examining the plaintiff, made a diagnosis that the plaintiff was suffering from lumbar disc degeneration/prolapse at L4-5 and L5-S1 consistent with the appearances on the CT scan. He added that the pathology was consistent with the plaintiff’s age and the nature of his work, and with respect to the lifting incident in December 2014. He also added that the injury may been produced by an aggravation of asymptomatic disc degeneration or it may even have caused the condition, and I assume that to mean the discal injury not the longstanding degeneration.[17]
[17]PCB 40
36 There are a large number of medical reports of medical practitioners who have examined the plaintiff who have offered opinions consistent with Dr Oppenheimer and Dr Stockman. I propose only to briefly refer to their opinions. There are also three CT scans which I will refer to in some detail later.
37 Dr Sleaby obtained a history of the lifting incident in December 2014. He considered that the plaintiff suffered a musculoligamentous injury, and a disc injury, mainly at L5-S1, with possible nerve root compression of the left S1 nerve root on the background of age-related degenerative changes and facet joint arthritis. He considered that the plaintiff’s lower back was asymptomatic prior to the plaintiff complaining of lower back pain after he was re-employed by the NCI Holdings Pty Ltd.[18] Inherent in his analysis is an acceptance that the plaintiff’s work with NCI Holdings Pty Ltd is to be implicated in the injury for which he treated him.
[18]PCB 32 and 35
38 Dr Bhalerao, general practitioner, succeeded Dr Sleaby as the plaintiff’s general practitioner after Dr Sleaby retired. He expressed the identical opinion which Dr Sleaby had previously expressed.[19] Inherent in his analysis is also an acceptance that the plaintiff’s work with NCI Holdings Pty Ltd is to be implicated in the injury for which he treated him.
[19]PCB 43 and 46
39 Dr Littlejohn, rheumatologist, examined the plaintiff on 25 March 2015. He obtained a history of the lifting incident in December 2014. He was provided with the CT scan taken on 16 January 2015. He considered that in the context of the lifting incident, that the plaintiff had suffered a soft tissue injury to one of the components of his lower lumbar spine region.[20] He was provided with a history of the plaintiff’s lower back problems prior to being re-employed by NCI Holdings Pty Ltd.
[20]DCB 18
40 Dr Littlejohn expressed an opinion materially different from many of the other medical practitioners who examined the plaintiff and commented on the contribution of his work with NCI Holdings Pty Ltd to the production of his lower back injury. He was asked to review the clinical notes of Dr Sleaby which I have summarised above, and also a letter of Dr Stockman, presumably written to Dr Sleaby. It was on the basis of that additional medical information that he concluded that the plaintiff had a “longstanding history of low back pain” which he associated with degenerative disease and facet disease in the plaintiff’s lower back. Otherwise, his opinion did not differ much from the opinion he expressed earlier.[21]
[21]DCB 21-22
41 Associate Professor Goldwasser, orthopaedic surgeon, examined the plaintiff on 14 April 2016. He obtained a history of the lifting incident in December 2014. He was provided with the CT scans taken on 28 November 2011, and 16 January 2015. He considered that the plaintiff had suffered a soft tissue injury involving aggravation of degenerative changes in his lower back. Otherwise, his opinion was directed to undertaking an impairment assessment.[22]
[22]DCB 30-36, and in particular, at DCB 35
42 Dr Karna, rheumatologist, examined the plaintiff on 14 July 2016. He obtained a history of the lifting incident in December 2014. He was provided with the CT scan of 16 January 2015. He considered that the lifting incident contributed to the production of his injury, and otherwise was of the opinion that the plaintiff had suffered an aggravation of multi-level lumbar spondylosis.[23]
[23]DCB 39-42
43 Dr Slesenger, specialist occupational physician, examined the plaintiff on 22 June 2017. He did not obtain a history of the lifting incident in December 2014, but a history of the plaintiff performing arduous work and the gradual development of lower back pain due to the nature of his work. He was provided with the CT scans taken on 28 November 2011, 16 January 2015 and 27 October 2015. He considered that the plaintiff suffered a mechanical lower back condition comprising an aggravation of degenerative disease in his lumbar spine.[24] He considered that the plaintiff’s “occupational exposures” with NCI Holdings Pty Ltd were “a plausible cause” of the plaintiff’s “lumbar spinal impairment”.[25]
[24]PCB 59-60
[25]PCB 66-67, 84h and 84k
44 Mr O’Brien, orthopaedic surgeon, examined the plaintiff on 29 August 2017. He obtained a history of the lifting incident in December 2014. He was provided with the CT scans taken on 16 January 2015 and 27 October 2015.[26] He considered that the plaintiff was suffering from chronic non-specific lower back pain, and the presence of lumbar spondylosis on the radiology made it possible that he had suffered an aggravation of that underlying pathology. He considered that in the absence of any substantial change in the radiology, that the only definitive pathological diagnosis he was able to make was that the plaintiff had suffered chronic non-specific lower back pain which was precipitated by the lifting incident in December 2014.[27]
[26]He was provided with a report of Dr Kam so he must a been aware that there was a third CT scan
[27]PCB 81 and 84a and 84b
45 Mr Aliashkevich, neurosurgeon, examined the plaintiff some time in October 2017. He obtained a history of the lifting incident in December 2014. He was provided with the CT scans taken on 16 January 2015 and 27 October 2015.[28] He provided a diagnosis based upon his acceptance that it was the plaintiff’s work with NCI Holdings Pty Ltd which was a significant contributing factor to the aggravation of pre-existing degenerative lumbar spinal disease. He diagnosed the injury to the plaintiff’s lower back as chronic and refractory mechanical lower back pain,[29] being an aggravation of the pre-existing degenerative condition of the plaintiff’s lower back.[30]
[28]He was provided with a report of Dr Kam so he must a been aware that there was a third CT scan
[29]PCB 84o, 84q
[30]PCB 84s
46 I accept the plaintiff’s evidence that when he was re-employed by NCI Holdings Pty Ltd, that he engaged in arduous work operating the press machine, and was engaged in extensive hours of overtime. Whilst he did not work on the press machine all of the time, I accept that it was what he did most of the time.
47 I do not accept that the plaintiff’s prior lower back problem was significant. He sought some modest medical treatment, but he continued working uninterrupted in relatively arduous factory work. The inference is that he was able to continue working because his lower back was not incapacitating him in any significant way, if at all.
48 The foregoing is important, because it puts into context the quantitative contribution made by NCI Holdings Pty Ltd to the compensable injury. I accept that when the plaintiff was re-employed by it, that he was physically fit and able to undertake all of the tasks required of him in arduous factory work. I do not accept the emphasis placed on the plaintiff’s prior lower back problem by Dr Littlejohn. I think that to do is to overstate its importance.
The Kam/Simm thesis
49 I will firstly turn to the three CT scans. The first was taken on 28 November 2011.[31] It demonstrated the following:
“No significant disc prolapse or canal stenosis is seen at L1/2 or L2/3 disc levels but there is mild spondylosis.
Moderately severe L3/4 and L4/5 lumbar spondylosis with broad based posterior annular L4/5 disc bulge and mild bilateral facet joints degenerative arthritis associated with mild bilateral foraminal stenoses could partially irritate or impinge on both L4 nerve roots. … .”
[31]PCB 104
50 The radiologist’s comment is as follows:
“1. Mild L1/2, L2/3 and L3/4 lumbar spondylosis without disc prolapse.
2. Broad based posterior annular L4/5 disc bulge with mild bilateral facet joints degenerative arthritis associated with mild bilateral foraminal stenoses could irritate or partially impinge on both L4 nerve roots.
3. Moderately severe left L5/S1 bony foraminal stenosis could impinge onto the left L5 nerve root.”
51 The second CT scan was taken on 19 January 2015.[32] It demonstrated the following:
[32]PCB 110
“… & L2/3 DISCS : No disc protrusion or thecal or nerve root compression is demonstrated.
L3/4 DISC : A minimal central disc protrusion is detected with slight contact with the anterior theca. No major thecal or nerve root compression is detected.
L4/5 DISC : A mild left paracentral disc protrusion is demonstrated with mild compression of the theca in the region of the origin of the left L5 nerve root. The protruding disc and facet joint osteoarthritis cause mild central canal stenosis and there is no major foraminal stenosis.
L5/S1 DISC : A mild central disc protrusion is detected with mild compression of the theca in the midline.
Severe osteophytic narrowing of the inferior aspect of the left L5 S1 neural exit foramen is demonstrated and osteophyte appears to be contacting the exiting left L5 nerve root laterally within the foramen. No foraminal narrowing is detected on the right.
Demonstrated paravertebral soft tissues appear within normal limits.
… .”
52 The radiologist’s comment is as follows:
“Conclusion :
Minor central disc protrusion at L3/4, mild left paracentral disc protrusion at L4/5 and central disc protrusion at L5/S1. Mild central canal stenosis at L4/5 and moderate to severe left L5/S1 foraminal stenosis with probable left L5 nerve root involvement until lateral aspect of the foramen.”
53 The third CT scan was taken on 27 October 2015.[33] It demonstrated the following:
[33]PCB 111
“Findings : Smooth and anatomic alignment with maintenance of vertebral body heights.
L1-2, L2- 3 : Disc heights maintained. No central canal, lateral recess or exit neuroforaminal stenoses.
L3-4 : Mild to moderate loss of disc space height. No central canal, lateral recess or exit neuroforaminal stenoses.
L4-5 : Moderate loss of disc space height. Mild, broadbased, posterior disc bulge combines with mild to moderate right and mild left facet joint hypertrophy and degeneration to produce moderate to marked left and mild right exit neuroforaminal narrowing.
L5-S1 : Disc height maintained. Mild, broadbased, posterior spondylitic protrusion produces moderate bilateral exit neuroforaminal narrowing.
No retroperitoneal cause for back pain demonstrated in the limited field of view.
… .”
54 The radiologist’s comment is as follows:
“CONCLUSION :
Moderate to marked left L4/5 exit neuroforaminal narrowing, present to a lesser extent elsewhere as described on a background of multilevel disc and facet degeneration.”
55 Dr Kam was asked to compare each of the CT scans to determine whether there was any pathological progression detectable when the subsequent CT scans were inspected and analysed. After inspecting the actual radiology and the original reports of the radiologists, Dr Kam reached the following conclusions:
· He was in “close agreement” with the conclusions reached by the individual radiologists.
· The plaintiff had longstanding degenerative changes in his lumbar spine.
· There is no radiological evidence of any significant injury or change to the radiological appearances of the plaintiff’s longstanding lumbar spinal condition.[34]
[34]DCB 60e -60h
56 I do not see that the conclusions reached by Dr Kam are really any different from the conclusions of any of the other medical practitioners who have examined the plaintiff, including Mr Simm.
57 Mr Simm examined the plaintiff on 20 July 2017. He obtained a history of the lifting incident in December 2014. He was provided with the three CT scans. He was also provided with the plaintiff’s first affidavit. He undertook a reasonably lengthy analysis of the clinical notes relevant to the plaintiff’s re-employment in the plaintiff’s affidavit.
58 Mr Simm considered that it was relevant to analyse the plaintiff’s work from 2002 to the end of 2014 in determining the contribution of the work he undertook after he was re-employed by NCI Holdings Pty Ltd. He described the plaintiff’s work from 2002 as “arduous heavy physical work”. It was in that context that he considered that quantifying contribution was difficult, but having said that, he then considered that the arduous heavy physical work was responsible for 50 per cent of the plaintiff’s lower back condition and the other 50 per cent was due to the progression of naturally-occurring degenerative pathology in his lower back. Even with the acknowledged difficulties in quantifying contribution, he considered that NCI Holdings Pty Ltd was responsible for one sixth.[35]
[35]DCB 58-59
59 Mr Simm was asked whether the plaintiff would have come to suffer a disabling lower back condition without the contribution by NCI Holdings Pty Ltd. He considered that the plaintiff would be in the same position now if he had not engaged in work with NCI Holdings Pty Ltd.[36]
[36]DCB 59
60 Mr Simm analysed the three CT scans. He compared them, concluding that there were no significant changes between the first CT scan and the third.[37]
[37]DCB 60i-60k
Conclusions
61 After reviewing the plaintiff’s evidence and the medical reports and radiology, I think there are a number of noncontroversial matters which I can briefly and conveniently summarise as follows.
62 Firstly, the plaintiff was engaged in factory/labouring work for a significant period of time since his arrival in Australia, and whether it be the period referred to by Mr Simm or a longer period is immaterial.
63 Secondly, whether the nature of the work he performed should be described as “arduous heavy physical work”, as Mr Simm chose to describe it, is also immaterial. What is clear is that the plaintiff was engaged in factory/labouring work which was probably arduous and perhaps even heavy, performed over a very long working week.
64 Thirdly, none of the examining medical practitioners who have considered some or all of the CT scans disagree with the conclusions of the radiologists.
65 Fourthly, none of the examining medical practitioners consider that there is any particular or significant pathological change disclosed on the CT scans.
66 Fifthly, the preponderant view, and not entirely discounted by Mr Simm, is that the work which the plaintiff performed after he was re-employed by NCI Holdings Pty Ltd resulted in an aggravation of the pre-existing degenerative changes in the plaintiff’s lower back.
67 Sixthly, it was during the course of the plaintiff’s re-employment with NCI Holdings Pty Ltd that he experienced significant symptoms of pain in his lower back and resulting significant disablement which brought his working life to an end.
68 I think the description given by Mr Simm that what occurred in 2011 was trivial is consistent with the conclusion I have reached.
69 What I think is compelling, however, is that the plaintiff worked very significant hours on the press after he was re-employed by NCI Holdings Pty Ltd. I accept the plaintiff’s evidence that it was work that no one else wanted to do, because it was so physically hard. It seems to me, therefore, that the plaintiff was under much greater physical stress and strain after he was re-employed by NCI Holdings Pty Ltd. There is a real probability that had he not been exposed to work of that kind undertaken over those hours, he may well have been able to continue working without experiencing symptoms of pain in his lower back and any degree of significant disablement.
70 The preponderance of the medical evidence is consistent with the plaintiff suffering an aggravation of the degenerative changes in his lower back which produced significant symptoms and significant disablement. I prefer that evidence to the first thesis advanced by Mr Simm that one needs to look at the whole of the plaintiff’s period of employment and undertake a process of quantification in the style of time on risk. My reasons for reaching this conclusion is largely based upon the fact that the plaintiff’s lower back was essentially asymptomatic for his re-employment by NCI Holdings Pty Ltd. The nature of the work he was performing and the hours performing that work I think amounts to a compelling inference that it was that work over those hours which is to be implicated.
71 As for Mr Simm’s second thesis that the plaintiff would have come to the symptoms and level of disablement even if he had not been re-employed by NCI Holdings Pty Ltd, I prefer preponderant view. I cannot accept that the other medical examiners, who are very experienced and many holding specialist qualifications, would have ignored the alternative conclusion that what the plaintiff is suffering now is due to the degenerative changes in his lower back, and not his work with NCI Holdings Pty Ltd.
72 What that leaves is whether the consequences of the aggravation alone satisfy the statutory definition of seriousness.
73 To determine whether there has been an aggravation of a pre-existing medical condition which amounts to serious injury it is necessary to identify each injury, identify and separate the impairment consequences of each injury, and identify whether the additional impairment caused by the claimed aggravation qualifies as a serious injury.[38]
[38]Petkovski v Galletti [1994] 1 VR 436 and AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309
74 The conclusion I have reached is that the preponderance of the medical evidence establishes that the aggravation of the pre-existing condition resulted in a permanent impairment of the function of the plaintiff’s lower back. The compelling evidence establishes that before the aggravation occurred, that the plaintiff was able to work full time and effectively. He was able to return to that work when he was re-employed, but it is clear, for reasons I have already advanced, that the nature of the work and the hours he performed was significantly different.
75 It is for these reasons that I reject the submissions made by the defendant, and I reject the thesis advanced by Mr Simm, preferring the preponderance of the medical evidence.
76 In the light of the concession made by the defendant, I do not need to analyse the evidence any further.
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