Blazevski v Victorian WorkCover Authority
[2023] VCC 2272
•7 December 2023
| IN THE COUNTY COURT OF VICTORIA AT GEELONG COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-01620
| PETRE BLAZEVSKI | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE TRAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 December 2023 | |
DATE OF JUDGMENT: | 7 December 2023 | |
CASE MAY BE CITED AS: | Blazevski v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2272 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – course of employment
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)(b)
Judgment:
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A MacNab SC with Ms P Prosser | Fortitude Legal |
| For the Defendant | Ms J Clark | Wisewould Mahony |
HER HONOUR:
1Petre Blazevski is now seventy-seven years of age. In 2003, at the age of fifty-six, he commenced work as a production worker at Backwell IXL Pty Ltd (“Backwell IXL”). He explains the work he performed at Backwell IXL as follows:
“… My duties with Backwell IXL involved heavy repetitive lifting, bending, and twisting of manufactured parts on the manufacturing line. I would lift heavy lengths of manufactured parts varying in weight. My work involved prolonged standing, repetitive bending and lifting of up to 25 — 30 kg. My work also involved repetitive forward bending and leaning into steel crates to place the products. … .”[1]
[1]Plaintiff’s Court Book (“PCB”) 13
2He continued in this role until April 2019, when he took a voluntary redundancy. He was then aged seventy-two.
3Mr Blazevski claims to have suffered a serious injury arising out of his employment, in the form of an impairment of his spine, specifically his lower back. As a result, he says he is in constant pain and unable to enjoy the activities with which he might otherwise have filled his retirement years, such as gardening, bush walking, fishing and outdoor picnics with friends and family. He applies for leave to bring proceedings for damages under s335(2)(b) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”).
4The defendant contends that Mr Blazevski is a seventy-seven-year-old man suffering from the natural progression of pre-existing degenerative changes to his spine. It accepts that there was an incident at work in January 2019 which exacerbated Mr Blazevski’s back pain, but says that any exacerbation is now resolved. Finally, it contends that, if there was any permanent aggravation of his back pain caused by his employment with Backwell IXL, it is not sufficiently serious to satisfy the serious injury threshold.
5For the following reasons, I accept that Mr Blazevski has suffered a serious injury arising out of his employment with Backwell IXL, and grant leave to bring proceedings for pain and suffering damages.
6First, as frankly acknowledged by Senior Counsel for Mr Blazevski, there were good reasons to be concerned with the reliability of Mr Blazevski’s evidence. Thus, in his affidavit, he stated:[2]
“Over the years I have experienced pain from time to time, which at times had radiated to my left lower limb. I was not restricted in my ability to perform my work or enjoy the activities of daily living.”[3]
[2] PCB 13
[3]Plaintiff’s affidavit, dated 18 November 2022, paragraph [6] at PCB 13
7Initially, under cross-examination, he acknowledged he had had back pain prior to commencing work with Backwell IXL, although it was just a “little pain” or “aching little problems with muscles”[4] and he could not really recall its nature:
[4] Transcript (“T”) 15, Lines (“L”) 26
Q:“And is what you're trying to get across there that while you have some back pain from time to time or you did have some back pain from time to time before you started at Backwell?---
A: Yes.
…
Q:… sometimes the pain radiated to your left lower limb or your left leg?---
A: I can't really recall about that.
Q:Yes, it was a long time ago. It's difficult to remember that sort of thing?---
A: Yeah, that was it. Not overly clear, it's hard.”[5]
[5]T13, L23 – T14, L5
8However, as his cross-examination progressed, he shifted to claiming he had pain in his “muscles and around the body, yes. But not in the spine or the lower back, no”;[6] and ultimately to categorically denying any back pain prior to his employment at Backwell IXL.[7]
[6] T22, L7-8
[7] T26, L 3-5; T26, L30 – T27, L3; T44, L23-26
9Mr Blazevski’s evidence was about as responsive and reliable as you would expect from a cantankerous, retired seventy-seven-year-old labourer, giving evidence in an alien environment, speaking through an interpreter and in chronic pain, who was asked again and again to provide more details of events from over twenty years ago. There were elements of his recollections which were self-serving. There were times where he was confused. He had a tendency to speak in absolutes and deny matters (such as pre-existing back pain), when more likely he simply could not recall it. It is likely there was an element of pain focus in his descriptions of pain to the Court, and to the medico-legal practitioners who examined him. But he did not strike me as actively dishonest. Indeed, his history – of working until encouraged to take a voluntary redundancy at the age of seventy-two, despite increasing symptoms of back pain – speaks of stoicism and persistence through adversity, rather than malingering. Mr Blazevski’s evidence in relation to the nature of pre-existing symptoms of back pain between twenty-four and thirty-six years ago was plainly not reliable. However, this does not cause me to wholly reject his evidence, particularly where it is consistent with clinical records or other documentary evidence, or there is otherwise good reason to view it as reliable.
10Second, Mr Blazevski’s longest-held position in his working life was with BHP for a period of twenty-five years. In relation to this employment, I accept Mr Blazevski’s evidence that (aside form a period of less than a year at commencement) he was employed by BHP as a group leader and then supervisor, rather than as a production worker. He delivered his oral evidence of the duties he performed as supervisor in a manner that suggested he was speaking from direct recollection. He was clearly proud of the work he performed in this role, managing and supervising his team and ensuring that each of eighty machines were manufacturing the correct product. It sounded like a very busy, difficult and high-pressured role. However, I accept his evidence that it was not a role which required heavy lifting or other manual labour (aside from lifting a few kilograms at a time). I also accept that, between BHP and Backwell IXL, he completed two stints of about six months each as a forklift driver and that, again, these roles did not require significant heavy lifting. These roles may be contrasted with the heavy manual duties he performed at Backwell IXL.
11Third, the evidence demonstrates a distinct and progressive worsening of Mr Blazevski’s lower back symptoms, commencing sometime after he started working at Backwell IXL.
12I accept that, between 1985 and 1999, Mr Blazevski suffered intermittent body pains which, on occasion, lead him to consult a chiropractor for treatment. I also accept that, on at least some of those occasions, these visits were precipitated by lower back or buttock pain, and he received treatment for this. However, the clinical records reveal a gap in chiropractic treatment between September 1999 (when he was employed at BHP) and March 2005 (two years after commencement at Backwell IXL.
13Further, notwithstanding these pre-existing back pains, Mr Balzevski was able to continue working in his role as a supervisor at BHP for twenty-five years, only leaving when the BHP mill closed down. He was then able to obtain and perform two contracts for employment at Alcoa as a forklift driver, before commencing at Backwell IXL in 2003. For the Backwell IXL role, he was required to pass a physical examination. He retained his employment as a production worker at Backwell IXL, which I accept entailed heavy manual duties, for sixteen years.
14Mr Blazevski attended the clinic of his current treating general practitioner (“GP”) from 10 April 2007. It appears from the clinical records of this GP that he was first diagnosed by his GP with osteoarthritis in 2010,[8] although in a report dated 19 November 2019, his GP refers to him suffering from osteoarthritis of the lower back for more than ten years, which would put onset at prior to 2009. Regardless, the clinical notes record that, between December 2011 and 2015, he attended in relation to lower back pain approximately once per year, and on each occasion he was referred for allied-health treatment. In 2016, he attended twice and, in addition to a referral for allied-health treatment, he was also referred for an x-ray of his thoracic spine and lumbosacral spine. In 2017, he attended at least three times in relation to lower back pain and on one occasion was provided a medical certificate, as he was unable to work. In 2018, he attended at least four times in relation to lower back pain, was referred for a CT scan of his lumbar spine and, upon receipt of the results, to Mr Greg Etherington, a neurosurgeon. On 26 January 2019, he attended complaining of an incident on 22 January 2019, in which he experienced sharp pain while lifting a heavy steel piece required in the manufacture of a ladder. Thereafter, there are numerous attendances, investigations and referrals recorded in the clinical notes in relation to, apparently, unremitting back pain. The back pain after 2018 appears on the face of the clinical records to be of a different order of magnitude in severity to the pains which saw Mr Blazevski seek chiropractic treatment on approximately twenty-six occasions in the fourteen years between 1985 and 1999; or, indeed, to the back pain which led to little more than annual referrals to allied-health services between 2011 and 2015.
[8] Defendant’s Supplementary Court Book (“DSCB”) 9
15This progressive worsening of his back pain, after he commenced employment with Backwell IXL, is reflected in a report of 20 June 2019, in which his treating GP, Dr Ahmed Hassan, describes Mr Blazevski’s history of back pain as follows:
“History of lower back pain due to Degenerative changes more than 10 years with pain fluctuates (some days good & some days bad).
Treatment always Analgesics & physiotherapy with very good response always.”
…
it is happening over many years of wears & tears of The cartilage between Lumbar spines esp. L4-5.
Causes is physical work, repetitive bending.”[9]
[9] PCB 39
16In his most recent report, Dr Hassan concludes:
“3.In my opinion, his work in steel fabrication with IXL company over 16 years is the main major contributing factor of his lower back lumbar spine condition as well as the incident that happened at work on the 22nd of January 2019 also a major contributing factor to his lower back injuries and condition.
4. As a consequence of Mr Peter Blazevski’ s lumbar spine condition (on its own excluding any psychological condition), he is likely to be precluded/restricted in activities involving:
a) Bending, lifting, twisting, or stooping
b) Pushing, pulling, or lifting
c) Squatting or crouching.
d) Prolonged sitting, standing, or walking.
e) Using steps or a ladder
5. As a consequence of Mr Peter Blazevski’ s work related lumbar spinal condition (on its own excluding any psychological condition), is likely to be precluded/restricted in relation to his social, domestic and recreational activities now and for the foreseeable future.”[10]
(sic)
[10]PCB 51
17Dr Hassan is thorough and consistent in his descriptions of Mr Blazevski’s history; and in his opinion the degenerative changes in his spine were contributed to by Mr Blazevski’s duties over the course of his employment with Backwell IXL. Although not a specialist, in my view, Dr Hassan’s views deserve considerable respect as a treating practitioner over many years, who has had the benefit of seeing the progression of Mr Blazevski’s symptoms of back pain firsthand. Occasional references in Dr Hassan’s clinical notes to other activities, such as gardening or house work, do not cause me to doubt the reliability of his opinions, especially considering the rapid and abridged nature of notetaking in a busy general practice.
18Fourth, I do not draw any adverse inference from the lack of an opinion as to causation from Mr Blazevski’s treating spinal surgeon, Mr Etherington. I accept Mr Blazevski’s submission that the primary role of a treating neurosurgeon is to diagnose and treat the current condition, rather than to provide an opinion on historic causation.
19Fifth, Dr Hassan’s opinion that Mr Blazevski’s work duties at Backwell IXL were the main contributing factor, is corroborated and confirmed by the reports of the medico-legal experts tendered by the plaintiff:
(a) orthopaedic surgeon, Mr Roger Westh takes a history which includes Mr Blazevski’s duties as a labourer for Backwell IXL since 2003 and the specific incident on 22 January 2019. He assesses Mr Blazevski twice, once in May 2022 and once on 23 August 2023. He concludes, in his second report:
“It is likely that he sustained a soft tissue injury to his spine with aggravation of underlying degenerative changes in his spine. His symptoms developed over a period of time and were the result of the heavy nature of his work which involved heavy and repetitive bending and lifting. There was a specific work incident on 22 January 2019 when he further aggregated his spine.
Mr Blazevski now presents with the features of chronic mechanical low back pain with some referred leg pain. There was no clinical evidence of any radiculopathy. There was no clinical evidence of a cervical condition.
The duties he was required to perform throughout the course of his employment with IXL Homes P/L were and continue to be a significant contributing factor to the injury and impairment of his lumbar spine.”;[11] and
[11]Supplementary report of Mr Westh, dated 22 August 2023 at PCB 66
(b) neurosurgeon, Dr Hazem Akil, took a history of the nature of Mr Blazevski’s duties at Backwell IXL, the progressive worsening of his back pain and the incident on 22 January 2019. He concludes:
“It is clear that he has aggravation of quite marked lumbar spondylosis. Given the fact that the symptoms developed during the course of employment with the first complaint of lower back pain occurred (sic) in 2011 which is eight years after starting working as a labourer and taking into consideration the duties that he used to do at work which involve repetitive lifting and bending particularly, I conclude that his job is a significant contributing factor to his current condition.”;[12]
[12]Report of Dr Akil, dated 7 August 2023 at PCB 69
Although in his first report Dr Akil records that:
“Prior to 2003, there are (sic) no available evidence that he had any particular past medical history that could be contributory to his current condition.”[13]
in a subsequent report he considers the fact that Mr Blazevski sought intermittent chiropractic treatment since 1985. He concludes that:
“Intermittent lower back pain requiring occasional chiropractitioner attendance is not something that I would consider significant enough to assume that he has a major pre-existing problem with his lumbar spine given that he decided to work as a labourer, which means that he was feeling well with his lower back generally.”[14]
[13](Ibid) at PCB 68
[14]Supplementary report of Dr Akil, dated 26 November 2023 at PCB 112
This seems to me to be a reasonable conclusion in the circumstances.
20Sixth, the defendant’s medico-legal experts focus principally on the question of whether the incident on 22 January 2019 was a cause of Mr Blazevski’s current symptoms, rather than on the question of whether the course of Mr Blazevski’s sixteen-year employment was a cause of his current symptoms (the claim relied upon by Mr Blazevksi in these proceedings):
(a) consultant trauma and orthopaedic surgeon, Dr Simon Journeaux, records the “Date of Accident” as 22 January 2019. Under the hearing “History of Injury”, he records details concerning the incident on 22 January 2019 only. Counsel for the plaintiff was not able to point to any consideration of Mr Blazevski’s work duties over the course of his employment in his report. He concludes:
“The claimant, on the medical evidence, more likely than not had a minor injury at his place of work on 22.01.2019. He in my view either sustained a minor lumbar strain/sprain or a minor exacerbation of pre-existing lumbar spine degenerative multilevel disc disease. The injurious event in my view is unlikely to have been significant and does not explain his current presentation.”;[15]
[15]Report of Dr Journeaux, dated 24 June 2019 at Defendant’s Court Book (“DCB”) 10
(b) orthopaedic surgeon, Associate Professor Max Esser, records the “Date of Injury” as 22 January 2019. Under the heading “Details of Accident/Injury”, he records Mr Blazevski’s description of the incident on 22 January 2019. He notes that Mr Blazevski was:
“… working as a labourer at the time of the injury on 22.01.2019. His work included making car parts, metallic components for gas tanks and other components of building materials.”;[16]
[16]Report of Associate Professor Esser, dated 5 May 2022 at DCB 22
however, he does not consider Mr Blazevski’s duties in any significant further detail. Although this may be a typographical error, he gives the year that Mr Blazevski commenced employment at Backwell IXL, incorrectly, as 2013.[17] He concludes:
[17] DCB 25
“I do not think this man is suffering from the effects of any significant injury. I think he has a functional component to his presentation, specifically with respect to tenderness in the spinous processes, on gentle palpation of the thoracolumbar spine, as well as a range of movements of his cervical spine, which were observed to be normal, but were significantly limited as noted on physical examination. See examination on page 5 of this report.”[18]
[18](Ibid) at DCB 27-28
Like Dr Journeaux, Associate Professor Esser focuses significantly on the question of whether the incident on 22 January 2019 was causative, rather than whether Mr Blazevski’s duties over the entire course of his sixteen-year employment were a cause of the degenerative changes he experienced. He does express the view that there are “significant functional components” to Mr Blazevski’s presentation. However, his assessment that Mr Blazevski demonstrates a “significant functional component” and has “very little in the way of objective clinical signs” seems somewhat at odds with his subsequent statement that:
“I think this man has widespread degenerative disease of the thoracolumbar spine. I think this man is able to perform light duties only, and the description of his work required significant heavy lifting with labouring demands. I think he will not be able to return to the type of work he was dong for his employer, Backwell IXL Pty Ltd.”;[19]
(c) neurosurgeon, Mr Kevin Siu, records that Mr Blazevski “first hurt himself in 2017 or 2018” and that there was “a second injury in January 2019”. He states, “[t]he diagnosis is a transient exacerbation of advanced degenerative changes in the lumbar spine”.[20] He then goes on to say:
“Imaging was performed in 2020, shortly after he noticed significant symptoms. The advanced changes had been there for some time. He has advanced degenerative disease from L1 to L4/5. He has facet joint degeneration as well. All in all, this is a picture of someone who has performed labouring duties up to the age of 72 years.”[21] (emphasis added)
[19](Ibid) at DCB 28
[20]Report of Mr Siu, dated 7 February 2023 at DCB 35
[21](Ibid) at DCB 35
His opinion may therefore be viewed as providing support for the “course of employment injury” relied upon by Mr Blazevski, insofar as it suggests that the advanced degenerative disease in the imaging is consistent with long-term performance of labouring duties.
21Overall, I prefer the opinions of the plaintiff’s GP and medico-legal experts, who each take a more detailed history of Mr Blazevski’s duties over sixteen years at Backwell IXL; expressly consider the question of whether the course of that employment was a cause of Mr Blazevski’s current spinal impairment; and provide an opinion which better fits the progressive decline in Mr Blazevski’s condition after his employment at Backwell IXL, with significant worsening on and from 2016, and particularly in 2018 and 2019, from which he has not recovered.
22Finally, as I have noted above, I accept that there is an element of pain focus in Mr Blazevski’s presentation. This may have led the defendant’s medico-legal experts to gain the impression that there were functional elements to Mr Blazevski’s presentation. However, I am not of the view that Mr Blazevski is a liar. Further, although the accuracy of his current description of his pain and restrictions may be impacted to some extent by pain focus, it self-evidently could not be impaired by any concerns with lack of recall. There is also objective support for his symptoms in the tendered radiology, which is acknowledged by each of the medical experts. His reports are corroborated by his wife, Angelina Blazevski. In the circumstances (and even allowing for some pain focus and exaggeration), I accept that, as a result of his employment at Backwell IXL, Mr Blazevski suffers constant variable aching pain in his lower back, for which he takes Comfarol Forte or Panadeine Forte and receives regular allied-health treatment, such as osteopathy. I accept that this pain has a severe impact on the quality of his life. It makes dressing difficult and he requires assistance with putting on his socks and must wear slip-on shoes; cooking can only be performed occasionally and slowly; his sleep is broken; he is unable to undertake any significant gardening (beyond perhaps occasional trimming of palm trees); he is unable to engage in bushwalking and mountain climbing; his enjoyment of outdoor picnics with friends and family is significantly reduced; he can no longer enjoy river and sea fishing and he is still able to enjoy football and soccer matches, but only locally – he is no longer able to travel to Melbourne for AFL or soccer games. I accept that, if anything, these symptoms and consequences will worsen with age.
23Mr Blazevski has worked hard all his life, including sixteen years with Backwell IXL until the age of seventy-two. After so many years of hard work, he no doubt expected to enjoy a retirement filled with simple pleasures like gardening, fishing, outdoor picnics and bushwalks with friends and family. Instead, his remaining years are likely to be ones of increasing incapacity, dependence on others, and constant aching pain in his back. I am satisfied that these are “very considerable” consequences and more than merely “significant” or “marked”, when compared to other cases, in the range of possible impairments or losses of a body function. I will grant leave to bring proceedings for pain and suffering damages.
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