Bell v RFS Services

[2011] VCC 597

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES & COMPENSATION LIST

SERIOUS INJURY DIVISION

Case No. CI-11-01162

Noel Robert Bell	Plaintiff
v
RFS Services Pty Ltd	First Defendant
&
Allianz Workers Compensation	Second Defendant

---

JUDGE:	HER HONOUR JUDGE KENNEDY
WHERE HELD:	Warrnambool
DATE OF HEARING:	11 and 12 May 2011
DATE OF JUDGMENT:	23 May 2011
CASE MAY BE CITED AS:	Bell v RFS Services & Anor
MEDIUM NEUTRAL	[2011] VCC 597
CITATION:

REASONS FOR JUDGMENT

---

Catchwords: Application for leave under s134AB Accident Compensation Act
1985 for the recovery of damages for pain and suffering only in respect of injury

to lower back- no compensable injury established

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N.R Bird with	Stringer Clark
Mr I.R Fehring
For the Defendants	Mr P.A Scanlon QC with	Lander & Rogers
Mr P.B Jens

Background

1          The plaintiff was born on 17 March 1938 and is now aged 73. He attended Hamilton High School until Year 8 and is married. Upon leaving school, the plaintiff worked in a variety of jobs, including as a rouseabout (who picks fleeces up from sheared sheep) and driver.

2          The plaintiff commenced work for the defendant company on or about 1 April 2009. He was employed to deliver the mail to areas outside Hamilton, working 20 hours a week.

3          The plaintiff claims that he injured his back on or about 15 May 2009 in the course of employment when he was lifting a box of stationery out of his station wagon to carry it to the Good Shepherd College.

4 The plaintiff seeks leave to bring proceedings for the recovery of damages pursuant to s.134AB of the Accident Compensation Act 1985 (“the Act”) for pain and suffering only on the basis of a “serious injury” pursuant to the definition in s134AB(37)(a).

5          Mr Bird, who appeared for the plaintiff with Mr Fehring, submitted that the plaintiff was relying on “dramatic pathology” of a physical disc prolapse contained in a CT scan of 7 July which revealed:

“Left sided disc prolapse at L5/S1 is likely to be impinging upon the left S1 and possibly the left S2 nerve root. Possible impingement of the left L5 nerve root in its lateral recess from a disc prolapse at L4/5.” [1]

[1]             The actual CT was not before the court but it is summarised in a report of Dr de Kievit of 30 October, 2011

Issues

6          Mr Scanlon QC, who appeared for the defendant with Mr Jens, submitted that the disc prolapse was not a compensable injury since the plaintiff had already seen a chiropractor and had an x-ray three days before the incident of 15 May which evidenced disc prolapse.

7          He further submitted that there was no evidence before the court which could establish that the incident of 15 May (which could only be an aggravation) was itself a serious injury pursuant to the principles set out in Petkovski[2] and Angeletos.[3]

[2]             Petkovski v Galletti [1994] 1 VR 436

[3]             Angeletos v Museum of Victoria [1999] 3 VR 157

8          The primary issue in the case was therefore whether the disc prolapse injury relied upon was a compensable injury arising out of or in the course of employment.

9          The plaintiff did not run his case on the basis of an aggravation injury. However, I will say something briefly about this issue, also, below.

Evidence

Plaintiff’s evidence

10        The plaintiff filed an affidavit of 10 November, 2010 and was cross examined.

11        In his affidavit he claimed that he was injured on or about 15th May when lifting the box of stationery which weighed about the same as one slab of beer. He claimed that he felt an immediate stabbing jolt of pain in his lower back. However, he continued on with his mail run that day, but after his shift he claims that he attended a chiropractor, Mr Kane Fraser. Mr Fraser would not treat the plaintiff without an x-ray, so the plaintiff then saw Dr Renfrey of the Hamilton Medical Group who arranged for an x-ray and prescribed medication. The plaintiff claims that he again worked the next day whilst being in pain. After a few days of persistent pain, the plaintiff thereupon ceased work and has not worked for the defendant since.

12        The plaintiff claimed that he had previously hurt his back in about 1980 and attended a chiropractor on one or two occasions; otherwise his back did not give him any problems over the years.

13        In giving oral evidence, the plaintiff appeared to have considerable difficulties recalling relevant events with any degree of coherence. There has been some effluxion of time since the relevant events occurred during which time the plaintiff has sadly been diagnosed with terminal lung cancer. Some of his hesitation may be attributable to the fact that he has a breathing problem due to his terminal lung cancer. Nevertheless, his evidence was unsatisfactory in relation to a number of significant issues.

14        In terms of the lifting incident itself, the plaintiff became visibly confused as to the date of the incident stating, at one stage, that he believed the day he did the harm was actually the 14th May, but later (under re-examination) giving evidence that “I can’t tell you now” when the incident actually happened.

15        The plaintiff also gave inconsistent evidence about the weight of the parcel he lifted. It will be recalled that his affidavit suggested that the parcel weighed about the same as a slab of beer. Counsel for the plaintiff accepted that a slab of beer weighed 13.5 kilograms. However, under cross examination, the plaintiff claimed the weight of the parcel was closer to 30 kilograms than 16 kilograms (as he had told a Dr Polke); then later agreed that it was “maybe not” 30 kilograms; then later suggesting that what he had told Dr Polke was closer to the correct weight than a slab of beer.

16        The plaintiff’s recollection surrounding the attendance on the chiropractor and Dr Renfrey was also very poor. His affidavit suggested that he saw Dr Renfrey immediately consequent on the lifting incident, and that the doctor arranged for an x-ray and prescribed medication.[4] However, under cross examination, the plaintiff agreed (consistent with the doctor’s notes of 18 May) that it “may have been in the following week” that he actually saw Dr Renfrey. When it was put to the plaintiff that he was having back pain and the need for radiology before the lifting incident he also agreed that “it looks that way.”

[4]             Counsel for the plaintiff did not adduce evidence of the relevant x-ray but accepted that the x-ray itself was actually taken on 12 May

17        The plaintiff’s recollection that his back did not give him any problems over the years was also shown to be unsound. The plaintiff maintained that he had experienced only leg pain. However, the evidence of Dr Slabbert was that the plaintiff had previously complained of back pain in August 2007; February 2008 (when an x-ray of the spine was requested and Mobic prescribed); and September 2008. In February, 2008 the plaintiff had also been given a patient education leaflet for exercises for his lower back.

18        The plaintiff appeared to be convinced that the lifting incident had caused his injury. Although I accept that it may well have caused pain, the deficiencies in his recollection mean I am unable to rely on the plaintiff’s evidence. This is not to say that the plaintiff deliberately sought to mislead; just that his recollection appeared to be unsound. In these circumstances, it is therefore important to consider all the available evidence, and particularly the objective evidence in the case.

Dr Slabbert’s evidence

19        Dr Slabbert completed two reports of 22 September 2009 and 24 September 2010 and was cross examined.

20        Dr Slabbert presented as a conscientious and careful doctor although he was clearly sympathetic to the plaintiff’s cause. Thus, for example, in his first report of 22 September 2009, he stated that the plaintiff came to see him on 19 May with a history that he had injured his lower back on 14 May when he was picking up some mail boxes. The doctor initially attempted to defend this statement by stating that he made this report when events were quite fresh in his mind. However, he ultimately agreed that he had not recorded that he had in fact seen the plaintiff himself on 14 May, which became a significant matter (as will be discussed further, below).

21        In his later report of 24 September 2010, Dr Slabbert diagnosed L4/5 and L5/S1 disc prolapse and painful left sacro-iliac joint.

22        In oral evidence, Dr Slabbert was taken to the records of the Hamilton Medical Group. He explained that they were colour coded to distinguish histories of what doctors were told; any opinions or conclusions reached; and referrals made. He also accepted (under cross examination) that the records were taken contemporaneously with the time of the actual consultation.

23        As already indicated, the doctor confirmed the existence of complaints of lower back pain on 28 August 2007; 4 February 2008 and 30 September 2008. In February 2008, when an x-ray was obtained, the plaintiff was prescribed Mobic for his low back pain which the doctor accepted was consistent with age and the degeneration found on x-ray.

24

The doctor was particularly taken to the records relating to 14 May 14/5/2009 (Thu) with Dr. JH Slabbert at HAM

Left sciatica-L4/L5 disc prolapse
Thursday May 14 2009 10:36:40
Dr. JH Slabbert

History

LBP (lower back pain[5])-seen Kane Fraser- no improv- had back Xray-L4/5 disc narrowing and moderate degenerative changes.

[5]             Dr Slabbert gave evidence that references to “LBP” was shorthand for “lower back pain”

Examination
General
BP (sitting): 122/64
Pulse (Sitting): 75 Regular
Musculo-Skeletal:
Straight leg raising: Left-15 deg, Right-60 deg
Back: Range of movement: Flexion-to knees.
Extension-good.
Lateral flexion-good.
Local tenderness: L4/5.
Slump test: negative.

Left femoral stretch positive.

Sensation disturbance: negative.

Reflexes: NAD.

Reason for the visit:

Left Sciatica-L4/L5 disc prolapse.

Actions:

Medication/Product added: Prednisolone Tablet 25mg, 1 b.d. 3 days then 1 daily for 3 days then ½ daily for 3 days…” (emphasis added)

25        Under examination, the doctor confirmed that his diagnosis was left sciatica, L4/5 disc prolapse. The history was that the plaintiff had already had an x-ray which showed L4/5 disc narrowing and moderate degenerative changes. This had changed from mild degenerative change shown on an earlier x-ray in February, 2008. The doctor explained that he came to the conclusion of the disc prolapse on 14 May because this was the first time the plaintiff complained of pain referring down his leg and he could only lift his left leg 15 degrees with a positive femoral nerve stretch test. He further prescribed Prednisolone for the disc prolapse pinching the nerve which was a cortisone tablet, and which he had never prescribed before. He also explained that a subsequent CT of 7 July confirmed the disc prolapse.

26        Under cross examination Dr Slabbert agreed that the plaintiff’s back had deteriorated by 14 May and that it was correct to say that by 14 May the clinical assessment was “of significant mechanical back pain with significant straight leg raising reduction and local tenderness together with the need for the prescription of a drug that is only provided for-in circumstances where one has a significant discal problem.”

27        In cross examination, Dr Slabbert was also taken to the notes of 19 May 2009 which read as follows:

“19/5/2009 (Tue) with Dr. JH Slabbert at HAM

No RFE

Tuesday May 19 2009 10:12:53

Dr. JH Slabbert

History

panadeine forte is giving some relief.

He pick up a box on Friday after I saw him and since then the back pain is much worse.

he walks slightly bending forward.
Examination:
Musculo-skeletal:
Straight leg raising: Left-15 deg, Right-60 deg.
Back: tender L4/5
normal reflexes, normal sensation.
Continue to mobilize
Review:
22/05/09 (emphasis added)

28        Under cross examination, Dr Slabbert agreed that the notes suggested he took a history wherein the plaintiff had picked up a box on the Friday (15 May) “after I saw him” in circumstances where he had last seen him on 14 May when the first diagnosis of an L4/5 disc prolapse had already been made.

29        His evidence was that the examination on the 19th looked “pretty much the same” as the examination on the 14th and that the assessment of the straight leg raising was the same on both 14 and 19 May. By 19 May the plaintiff was also obtaining some relief from the Panadeine Forte (which had been prescribed by Dr Renfrey the day before after the Prednisolone had run its course).

30        In answer to a suggestion that he could not be confident of correlating the box incident with the prolapse, he agreed, saying “not according to the entry there…” He further said that there can be “different mechanisms” by which a disc can be prolapsed.

Whether disc prolapse is a compensable injury

31        Counsel for the plaintiff submitted that I should find that the lifting incident caused the injury which could have occurred as early as the 12th (being the date of the x-ray). In particular, he relied on the plaintiff’s own evidence, as well as affidavits of the plaintiff’s wife, a friend and his boss. He also submitted that the reports of the doctors were consistent with the plaintiff’s account.

32        As indicated already, the plaintiff’s evidence was at times vague and uncertain as to the precise chain of events and I am unable to be confident that his evidence can be relied upon.

33        The other affidavits are also unhelpful as they do not date the relevant injury. Thus:

• the affidavit of the plaintiff’s wife, Mrs Bell, is dated 17 January, 2011 (considerably after the incident). She merely recalls Mr Bell “suffering his injury in May 2009.” Further that “he came home from work and appeared very stiff and sore….[and] told her the story about how he suffered his injury”;

• The affidavit of a friend, Michael Bernard Nailon, of 15 February, 2011 merely states that he is “aware Noel suffered an injury in roughly May 2009.”

34        Finally, the affidavit of Robert Francis Stevenson, director of the first defendant, of 11 May 2011 contains the following statement:

“The first that I clearly recall of Noel Bell contacting me about his workcover claim was when he rang me on a Sunday at lunchtime and asked me if I could find a driver for Monday because he could not do it because his back was crook. I have a recollection of him talking to me earlier in that week and telling me that he had a sore back. I reckon that it was the Wednesday or the Thursday that he told me that his back was a bit sore. I did not see him on the Friday after he had completed the mail run on that day so the discussion could not have been on that day.” (emphasis added)

35        This account is generally consistent with the plaintiff suffering reportable pain by Wednesday or Thursday and at some point prior to the lifting incident of 15 May ( as recorded in the notes).

36        The reports of the doctors also take the matter no further as they generally rely on the history given by the plaintiff. In particular, they consider the plaintiff’s case in the context of the low back pain only presenting from the date of the lifting incident[6] which led to the attendance on the chiropractor and the subsequent x-ray.[7]

[6]             See, for example, report of Mr Schofield of 29 November, 2010 at page 2; report of Dr Renfrey of 23 September, 2009 ; report of Dr Lovell of 25 November, 2009 at page 2

[7]             See, especially report of Mr Schofield at 29 November, 2010 at page 2 and report of Dr Renfrey of 23 September, 2009.

37        This is to be compared with the situation disclosed in the Hamilton Medical records. The evidence is that those notes were taken contemporaneously at the time of the consultation. They disclose that the x-ray of 12 May predated the presentation of a disc prolapse on 14 May. The notes of 19 May also clearly indicate that the plaintiff picked up the box on Friday [15 May] “after” Dr Slabbert had seen the plaintiff. Given Dr Slabbert had seen the plaintiff on 14 May at which time he had diagnosed the disc prolapse, the irresistible conclusion is that the lifting incident occurred on 15 May after Dr Slabbert had already diagnosed the disc prolapse.

38        I am fortified in this conclusion by the following:

• the doctor presented as a conscientious, thorough doctor who would take careful notes;

• there is no entry in the history section of the 14 May note which suggests that an incident had occurred at work;

• the date of 15 May corroborated with the date given in the plaintiff’s workers claim forms signed (closer to the incident) on 9 September, 2009 and 25 March 2010;

• the records do not suggest the plaintiff saw Dr Renfrey at the time the x-ray was taken (on 12 May) as he suggests; rather the plaintiff did not see him until 18 May well after the date of the x-ray. As indicated already, the plaintiff also accepted that this might have been the case.

39        It follows that the disc prolapse injury relied upon had occurred by 14 May and thereby predated the lifting incident of 15 May.

40        In those circumstances, there is simply no evidence as to whether the disc prolapse diagnosed on 14 May arose out of or in the course of employment. In particular, there is no evidence as to the circumstances surrounding the request for an x-ray on 12 May in circumstances where the plaintiff had pre-existing back pain consistent with age and degeneration. As indicated already, Dr Slabbert was also unable to be confident of correlating the box incident with the prolapse and further said that there can be “different mechanisms’ which can cause a prolapse.

41        The plaintiff (who bears the onus) has therefore not satisfied me that there is a compensable discal injury based on the lifting incident as alleged.

Aggravation

42        Counsel for the plaintiff fairly accepted that the case had not been put as an aggravation case, but rather on the basis of a discrete injury.

43        This was a proper concession to make as the evidence generally failed to address the plaintiff’s impairment both before and after the lifting incident to determine if any aggravation was itself a serious injury pursuant to the principles set out in Petkovski[8] and Angeletos.[9] Rather, the medical reports generally describe the injury as a discrete injury (being a disc prolapse and painful sacroiliac joint) and examine the consequences attributable to this single injury.[10] The closest it gets is Dr Renfrey’s report of 23 September 2009 wherein he “suspects” an “acute exacerbation” of longstanding osteoarthritis, but in so saying he takes an inaccurate history wherein the plaintiff only saw the chiropractor and obtained the relevant x-ray after the lifting incident.

[8]             Petkovski v Galletti [1994] 1 VR 436

[9]             Angeletos v Museum of Victoria [1999] 3 VR 157

[10]           See for example report of Dr Slabbert of 24 September; report of Mr Schofield of 29 November, 2010 especially at page 4; report of Dr de Kievit of 30 October, 2009 at page 2; report of Dr Lovell of 25 November, 2009 especially at page 2

44        I accept, consistent with Dr Renfrey’s notes of 18 May, that there may have been some exacerbation through the lifting incident. However, the medical evidence does not support that this, of itself, was a serious injury, particularly given by 22 May, at least, the plaintiff was “walking much better” and the pain was “better” (see note of 22 May). As indicated above, the evidence of Dr Slabbert was also that the examination on the 19th looked “pretty much the same” as the 14th with the same results on the straight leg raising.

45        In those circumstances, I am unable to be satisfied, consistent with Counsel’s approach, that any exacerbation experienced on 15 May constitutes a serious injury.

Conclusion

46        The plaintiff’s application must be dismissed.

---

Certificate

I certify that these 15 pages are a true copy of the reasons for decision of Her

Honour Judge Kennedy, delivered on 23 May 2011.

Dated: 23 May 2011

Sonja Mileska

Associate to Her Honour Judge Kennedy