Borazio v State of Victoria
[2014] VCC 1567
•19 September 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-01725
| SAVERIO (Sam) PETER BORAZIO | Plaintiff |
| v | |
| STATE OF VICTORIA | First Defendant |
| and | |
| WORKSAFE VICTORIA | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 September 2014 | |
DATE OF JUDGMENT: | 19 September 2014 | |
CASE MAY BE CITED AS: | Borazio v State of Victoria & Anor | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1567 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – lower back injury – whether caused by the plaintiff’s employment as a police officer with Victoria Police between 2000 and 2008 – other hypotheses equally consistent with the cause of the injury – failure by the plaintiff to obtain medical evidence from a number of treating paramedical and medical practitioners – credit
Legislation Cited: Accident Compensation Act 1985 , s134AB(16)(b)
Judgment: The plaintiff’s Originating Motion is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M J Ruddle | Nowicki Carbone |
| For the Defendants | Mr P B Jens | Lander & Rogers |
HIS HONOUR:
Introduction
1 By an amended Originating Motion filed 1 August 2014, the plaintiff seeks the leave of the Court, pursuant to s134AB of the Accident Compensation Act 1985 (“the Act”), to bring a proceeding to recover damages for an injury which he suffered in the course of and within the scope of his employment with the first defendant.
2 The plaintiff claims that he suffered an injury to his lower back whilst employed as a police officer. His claim was limited to the pain and suffering consequences of the impairment of function of his lower back.
3 Mr M Ruddle of Counsel appeared for the plaintiff. Mr P Jens of Counsel appeared for the defendants.
4 The following evidence was adduced at the trial of the proceeding:
· The plaintiff gave evidence and was cross-examined;
· The plaintiff tendered his Court Book (“PCB”), pages 5-11E, 19-27 and 35-71: exhibit A;
· The defendants tendered their Court Book (“DCB”), pages 1, 54-66, 218-221, 232 and 290-294: exhibit 1;
· The defendants tendered the report of Mr Brighton-Knight, orthopaedic surgeon, dated 1 September 2012: exhibit 2;
· The defendants tendered the clinical notes of Dr Courtney, general practitioner: exhibit 3.
The Plaintiff’s background
5 The plaintiff was born in Italy. He migrated to Australia with his family when he was nine months’ old. He attended a number of schools before completing Year 11 at Moorabbin Technical College. He then commenced an apprenticeship to become a qualified electrician. He is a married man. He has two children who are of school age.
6 The plaintiff commenced his employment with Victoria Police in 2000. He resigned in 2008. He then commenced employment with the Australian Federal Police. He worked as a federal policeman for nine months before resigning.
7 He then returned to his former trade as an electrician. He commenced employment with a company known as Heat Recovery Ventilation (“HRV”) in about March 2009. He worked with HRV until about February 2010, when he commenced employment with a company known as Skilltech. He worked with Skilltech until about October 2013. He then commenced employment with Commercial Food Machinery. He worked with that company for about three months. He then commenced self-employment, and has done so to the present time.
The injury
8 In his first affidavit sworn 7 December 2012, the plaintiff said that he suffered injury in the following circumstances.
“21.In or about 14 February 2000, I commenced employment for the Victorian Police Force, working as a divisional van driver.
22.As a general duties police officer my job entailed sitting for long periods in police vehicles conducting patrol duties. My operational police duties required me to carry heavy equipment which was fitted to a belt around my waist. Due to the design and shape of the seats and the police vehicle and the size and shape of the equipment fitted to my belt, I was forced to sit in a twisted position for long sustained periods of time. My firearm which was fitted on the right hand side of my waist, would sit hard against the moulding of the vehicle seat. This would force my right hip forward and in turn, place uneven pressure on my left hip, forcing it into the vehicle seat.
23.Due to the small size of my waist, I was forced to carry my police radio on the back left hand side of my equipment belt. When sitting in police vehicles the radio pushed hard into the left side of my lower back, placing a great deal of pressure on my lower back area. Initially this abnormal seating posture was more uncomfortable than painful, however, in 2007, I began to suffer pain in my left lower back, left buttock, left leg and the left side of my upper back and neck.
24.In or about August/September 2007 I suffered a lower back injury due to the equipment belt I was forced to wear over the years in the course of employment.”[1]
[1]PCB 21-22
9 The plaintiff added to that description in his second affidavit sworn 29 July 2014:
“16.Further to paragraph 24 of my first affidavit I recall that a lot of my police colleagues complained that their equipment belts were causing them back pain.
17.The firearm holster on the equipment belt was designed to be locked to prevent the holster and firearm from moving. In turn, the equipment belt was also locked into position by the use of belt ‘keepers’ in order to greatly restrict any movement. The firearm was the only piece of equipment that was allowed to be located on my right side. This meant that all the other equipment was predominantly located on my left side or at my back. This included handcuffs, baton, capsicum spray, portable radio, multi tool and spare rounds of ammunition. This, in effect, caused my torso to sit in a poor postural position not only in police vehicles but also at office desks as I attempted to adjust my posture to accommodate wearing the equipment belt and all of the attached equipment whilst in the car seat or with office chairs with arm rests.
18.In the course of my employment with Victoria Police I noticed the equipment such as the radio digging into my back and ripping of the upholstery on the seats and arm rests in the vehicles I drove in as a result of the equipment such as the butt of the Police issued firearm constantly rubbing on the seat. I personally experienced difficulty using computers when sitting in chairs with arm chairs [sic] whilst wearing the equipment belt. I recall Victoria Police eventually replacing all the office chairs in the Moorabbin Police Station muster room to chairs without arm rests.”[2]
[2]PCB 8
The Plaintiff’s medical treatment
10 The medical evidence adduced by the plaintiff of his initial treatment for the lower back condition is essentially limited to a letter of Dr Nolan and the clinical notes of a practice where Dr Nolan and Dr Courtney apparently practised in partnership with other medical practitioners. No conventional medical report was obtained from Dr Courtney, who the plaintiff said was his principal general practitioner. Unfortunately, that now necessitates me having to traverse the clinical notes to determine what complaints the plaintiff made of the occurrence of a lower back condition, and its nature and extent.
11 The earliest evidence of the plaintiff attending a medical practitioner for treatment for his lower back is contained in the clinical notes of Dr Courtney. On 26 October 2007, he saw Dr Courtney. He told her that he had soreness in his lower back and down his left side. He also told her that the soreness was caused by driving a police car, and the necessity to twist his back to accommodate a gun and a radio. I assume that the reference to the gun and the radio is a reference to their position on the equipment belt. On examination, Dr Courtney found tenderness of the plaintiff’s left lower back. She referred him to an osteopath.[3]
[3]Exhibit 3
12 In re-examination, the plaintiff said that he had seen an osteopath before he saw Dr Courtney. He saw Mr Chris Reeves, osteopath, on about half a dozen occasions. He described the treatment as “cracking of the back”, instruction about exercise, and he believes his back might have been taped.[4] The plaintiff did not obtain a report from Mr Reeves either.
[4]Transcript 54-55
13 A letter written by Dr Nolan, general practitioner, to the officer in charge of the Sandringham Police Station, dated 24 November 2007, does refer to the problems which the plaintiff was encountering with his equipment belt. He said:
“I have treated Saverio with headaches and facial pain. We believe that this is due to lower back problems due to sitting in a police car with his equipment belt. He has applied to receive an equipment vest which we believe will resolve the problem.
Sam has applied for this but continues to suffer from this problem and ask you to expedite the delivery of this. Until then Saverio will be unable to wear an equipment belt and therefore on light duties”.[5]
(sic)
[5]PCB 41
14 The clinical notes disclose that the plaintiff saw a number of doctors at the medical centre where Dr Courtney practised. In summary, the clinical notes reveal the following:
· 10 April 2008 – pain in the left side of the neck, the left loin and the left iliac crest. The plaintiff was doing pilates, stretches, swimming and bike riding. A diagnosis was made that the pain was in the plaintiff’s thoracic spine around the T9 left-sided facet joint. He was referred to have an x-ray of his thoracic spine. He was prescribed Temaze.[6]
[6]The plaintiff had been previously prescribed Temaze – for example the entry in the clinical notes dated 27 August 2007: exhibit 3
· 17 April 2008 – pain in the left lumbar area. There appears to be a reference to his work as the cause of his pain. The diagnosis was left paravertebral muscle pain. He was advised to do stretches.
· 28 April 2008 – aches “still in the left side”. I assume the reference to the left side means the left side of the lower back. The plaintiff was better on that occasion. On examination, it would appear there was pain in the left buttock and left paravertebral area. He was advised to do buttock stretches.
15 The entry in the clinical notes dated 28 April 2008 appear to coincide with the plaintiff’s employment with the Australian Federal Police. Part of the entry reads “may be going for overseas posting”. The plaintiff said that in 2008, he moved to Canberra so that he could undertake the necessary training with the Australian Federal Police.[7] He understood that he would be deployed to Cyprus for about twelve months.[8] Therefore, by about April 2008, it would appear that the plaintiff was no longer employed as a police officer with Victoria Police.
[7]PCB 8 and 20
[8]Transcript 19
16 The plaintiff was in Canberra for three or four months. He said that he was treated by a Mr Berg, physiotherapist, at the Australian Federal Police Training College and at Mr Berg’s private rooms. He believes that he was treated by him on a least half a dozen occasions.[9] The plaintiff did not obtain a report from Mr Berg.
[9]Transcript 55
17 The next relevant entries in the clinical notes are:
· 8 May 2008 – pain in the left paravertebral area up to the scapula.
· 29 May 2008 – the consultation appears to have been mostly about the plaintiff’s scapula. There is a cryptic reference to the plaintiff also having pain in his left lumbar area.
· 4 June 2008 – pain in the lower back on the left side around the iliac crest. The plaintiff was given a cortisone injection. He was prescribed Mersyndol Forte for pain relief.
18 The first entry has little to do with an injury to the lower back. The second entry appears to include the lower back, but the principal reason for the consultation appears to have been for left scapular pain. There is then a significant break in the plaintiff’s treatment until 15 March 2011. On that occasion, Dr Courtney recorded that the plaintiff was still having lower back pain, which he apparently related to his work as a police officer with Victoria Police. His pain had worsened at night, with back spasm on the left side of his spine with associated buttock pain and pain on the lateral side of the calf.
19 The plaintiff was then referred to Dr Lovell, physician. He first saw him on 14 April 2011. Dr Lovell appears to have undertaken what he described as medial branch blocks. The purpose appears to have been to determine whether the plaintiff’s pain was facet joint pain.[10] Dr Lovell performed a procedure on the plaintiff’s lumbosacral spine on 23 November 2011. It would appear that he injected Marcain and Celestone into the plaintiff’s lumbosacral spine and into the dorsal sacroiliac ligaments.[11] He applied to the insurance agent for permission to perform left sacroiliac joint radio-frequency neurotomies.[12] There is nothing in the plaintiff’s evidence that suggests that permission was given by the insurance agent, or that the plaintiff had that treatment.
[10]PCB 35
[11]PCB 39
[12]PCB 40
20 The plaintiff said that he had a cortisone injection in his lower back on 4 September 2011.[13] He did not say who gave him the injection. There is nothing in Dr Courtney’s clinical notes which suggests that he had such an injection. There are only two possible explanations – either he did not have the cortisone injection, or he has mistakenly referred to the injection given by Dr Lovell on 23 November 2011 as a cortisone injection.
[13]PCB 23
21 Understanding what treatment the plaintiff had between 2007 and late 2011 is made almost impossible, as the solicitors for the plaintiff did not bother to obtain reports from Dr Courtney and Dr Lovell outlining the chronology of treatment which they provided the plaintiff. I am not entirely satisfied that the summary that I am endeavouring to patch together is necessarily accurate. However, this is the state that the plaintiff has left his case by simply tendering a body of documents which I have been obliged to read to try to understand what treatment he had, and for what medical condition.
22 The clinical notes refer to the plaintiff attending Dr Courtney on 15 and 29 March 2011 for problems with his lower back, and then a number of other attendances, which I will refer to later. On 19 June 2012, the plaintiff was provided with a referral to Mr Speck, orthopaedic surgeon. The plaintiff could not recall Mr Speck’s name, and I assume that he did not see Mr Speck.[14] On 25 June 2012, the plaintiff was provided with a referral to Mr Brighton-Knight.
[14]Transcript 35
23 The plaintiff’s solicitors did not obtain a report from Mr Brighton-Knight, orthopaedic surgeon. The defendants produced a letter from Mr Brighton-Knight to Dr Courtney dated 1 September 2012. The letter was obtained from the clinical notes of Dr Courtney. It reveals that the plaintiff saw Mr Brighton-Knight on 23 August 2012. The plaintiff said that Mr Brighton-Knight referred him to have an MRI scan. Mr Brighton-Knight considered that the MRI scan showed a foraminal disc herniation which was irritating the L5 nerve root. He suggested that the plaintiff undergo an injection with some steroid and local anaesthetic as a diagnostic test to determine whether the plaintiff required surgery.
24 The plaintiff said that on 23 August 2012, he underwent a CT-guided nerve root injection into the left L5-S1 foramen. He said that Mr Brighton-Knight told him that he had a foraminal disc herniation which was irritating the L5 nerve root. He then said that he was advised that surgery might be of assistance, but ultimately Mr Brighton-Knight advised him to avoid surgery. The advice which the plaintiff says he was given by Mr Brighton-Knight appears to correlate with what Mr Brighton-Knight said in his letter to Dr Courtney dated 1 September 2012.
25 There is nothing in the clinical notes to confirm that the plaintiff did have a CT-guided nerve root injection. The only reference to an injection is in the entry in the clinical notes dated 9 February 2013. It records that the plaintiff had a nerve sheath injection which was effective for six weeks. It may be a reference to the injection which the plaintiff said he had.
26 Mr Brighton-Knight made some important observations relevant to the question of causation in his letter to Dr Courtney:
“ Mr. Borazio has pushed me very hard on whether I think his utility belt in the police force contributed to his problem. He even b[r]ought an example of the utility belt into the examination room today. I am unable to comment on whether an externally worn device such as this has any significant impact however the medical research suggests that disc herniations occur spontaneously secondary to intrinsic genetically determined disc factors plus the passage of time. There is no increased incidence of disc herniation in any sub-group in a population that has yet been identified other than those who have genetic clustering of back problems. In particular, there has been no specific work place which has predisposed patients to disc herniation.
This is the best advice I can give him however he may obtain a different opinion from a different surgeon or indeed his lawyers may find a different opinion from different specialty altogether. I will leave this up to them.
At this stage I will continue to manage his problem although as you can see, medico-legally I am not much use to him.”[15]
[15]Exhibit 2
27 It is not clear whether the opinion expressed by Mr Brighton-Knight on causation was requested by Dr Courtney. There is nothing in the clinical notes to suggest that. Indeed, there is nothing in the clinical notes to suggest that Dr Courtney was of the opinion that the wearing of the equipment belt was to be implicated in the causation of the plaintiff’s lower back injury. There is a cryptic reference somewhat consistent with that in the clinical note dated 9 July 2014, as well as the note dated 15 March 2011 which I referred to earlier.
28 Mr Brighton-Knight referred the plaintiff to Dr Shirazi, consultant in rehabilitation medicine, at the St John of God Hospital. Dr Shirazi saw the plaintiff on 30 November 2012. He wrote a letter to Mr Brighton-Knight dated 30 November 2012 setting out his examination of the plaintiff and his opinion regarding the plaintiff’s lower back condition. A copy was sent to Dr Courtney.[16]
[16]PCB 43-44
29 Dr Shirazi obtained a history from the plaintiff of the difficulties that he was experiencing which the plaintiff told him dated back to when he was a police officer with Victoria Police. Dr Shirazi was provided with an MRI scan. I assume it was the MRI scan commissioned by Mr Brighton-Knight. On examination, he found tenderness over the lumbosacral region on the paravertebral left side. Straight leg raising reproduced pain on the left side in an L5 distribution. He advised the plaintiff that treatment was important so that he could resume normal activities and return to his previous high level of physical exercise. He suggested that surgical relief was the only solution to relieve the pressure of the nerve root at L5.
30 Dr Shirazi noted that the plaintiff was to return to Dr Courtney regarding his use of Lyrica to treat his pain. The plaintiff told Dr Shirazi that if further treatment did not improve his situation, then he was prepared to return to the care of Mr Brighton-Knight and give further consideration to surgery. There is no evidence to suggest that the plaintiff saw Dr Courtney regarding his use of medication.
31 The clinical notes reveal that the plaintiff saw Dr Courtney on 7June 2012. It is a longer and more detailed clinical note. It would appear that the plaintiff was suffering from pain in his lower back, a shooting pain in his left buttock and into the lateral calf, and paraesthesia in the bottom of his foot. It records that the plaintiff had undergone massage, osteopathy and physiotherapy. The diagnosis is difficult to decipher fully, but it would appear that the left L5 facet joint was tender; the T8-12 centrally demonstrated muscle spasm on the left side, and there was pain down the left leg with straight leg raising. No treatment was provided.
32 The next entry is 9 February 2013, which I have summarised already. The next is 9 July 2014, in which there was a reference to 2007 and the plaintiff wearing an equipment belt. The notes suggest that the plaintiff was having pain in his lower back, thigh and calf. The pain was made worse with gardening and driving and was affecting his sleep. However, on examination, the straight leg raising was 90 degrees on both sides. He otherwise had “good painless movement”. He was prescribed Temaze and Mobic. There is also a note that Dr Courtney understood that the review she was undertaking on that occasion was a “review of back due for court case”.
33 The last entry in the clinical notes is 17 July 2014. The plaintiff told Dr Courtney that using Mobic was helping his lower back pain; he was not getting much leg pain; his osteopathic treatment was not helping much; he had been to a pain clinic; on a good day his pain was 6 out of 10; with use of medication it was 5 out of 10, and on a bad day it was 8 out of 10.
34 The medical evidence up to this point from the plaintiff’s treating medical practitioners is wholly unsatisfactory. What there is is a patchwork quilt of letters passing between a number of medical practitioners, and Dr Courtney’s clinical notes. The evidence I have just reviewed covers a period from 2007 to 2012. The best I can make of it is that the plaintiff complained that the wearing of the equipment belt caused him pain in his lower back and left leg.
35 However, the only definitive opinion on causation between 2007 and 2012 is contained in the letter of Dr Brighton-Knight to Dr Courtney in which Dr Brighton-Knight unequivocally said that he could not say that the wearing of the equipment belt contributed to the plaintiff’s lower back condition. There is no opinion on that score from Dr Courtney, Dr Lovell or Dr Shirazi. The only other evidence of any probative value are the clinical notes. The entries in the clinical notes appear to create a temporal connection between the wearing of the equipment belt and the onset of the plaintiff’s lower back condition, but nothing much more.
The medico-legal opinions
36 There is a division between the medico-legal assessors on the question of causation. Mr Kudelka, orthopaedic surgeon, and Dr Slesenger, occupational physician, are of the opinion that the plaintiff’s lower back condition is causally related to the wearing of the equipment belt. Mr Hooper, orthopaedic surgeon, and Associate Professor Brazenor, neurosurgeon, are of the opinion that causation cannot be established. Mr Schutz, consultant surgeon, gave a somewhat equivocal opinion on causation.
37 The plaintiff saw Mr Kudelka on 9 July 2013. There are some aspects of the history recorded by Mr Kudelka which appear to me to be wrong. Mr Brighton-Knight did not categorically offer the plaintiff spinal surgery.
38 The plaintiff did not see Mr Hooper for an opinion for treatment purposes. Mr Hooper was engaged by the insurance agent to give a medico-legal opinion. A similar impression is created by reference to Mr Schutz that an opinion was sought from him for treatment purposes. Mr Schutz did not conclude that the plaintiff was suffering from sciatic pain. He considered that the plaintiff’s left-sided lower back symptoms were of an uncertain cause, and possibly related to chronic inflammation of the left sacroiliac joint in its superior aspect.[17] It is not clear to me whether any of this misreporting influenced Mr Kudelka’s opinion. It may have.
[17]PCB 69
39 Following his examination on 9 July 2013, Mr Kudelka expressed the following opinion:
“2.The symptoms in this area of his back commenced in 2007, initially due to wearing heavy equipment belt, but subsequently, despite appropriate conservative treatment, symptoms have persisted.”[18]
[18]PCB 57
40 Mr Kudelka had a copy of a report of Professor Brazenor dated 26 April 2013.[19] He was asked to comment on Professor Brazenor’s opinion on causation. He said:
“ My own view is that the equipment belt is important, but I have performed many examinations for Victoria Police where the patient has identified the equipment belt as being involved in their symptoms. I agree with Mr Brazenor that the belt and the pistol do not cause a back injury, but patients report symptoms, and injury is a deduction that others make. I believe that the service belt and pistol cause symptoms and it is symptoms that we are treating.
…
In summary therefore, I have respect for Mr. Brazenor’s opinion, but my conclusion is that this patient’s symptoms are work related, the treatment has been directed at these symptoms and that there is objective radiological evidence that there is an abnormality in this patient’s lower lumbar spine, which could be, and in my opinion is, associated with the symptoms.”[20]
[19]DCB 54-62
[20]PCB 58
41 Mr Kudelka examined the plaintiff on 29 July 2014. On this occasion, he was provided with Mr Hooper’s report. His opinion on this occasion was largely directed to the pain and suffering consequences of the plaintiff’s lower back condition. However, he repeated that it was his opinion that the plaintiff symptoms were work-related.[21]
[21]PCB 61
42 Dr Slesenger examined the plaintiff on 20 July 2014. He obtained a reasonably full history from the plaintiff of the plaintiff’s own view of the implication of the equipment belt in the cause of his lower back condition.[22] He then said:
“ His symptoms were triggered by the occupational demands, which included wearing a heavy utility belt and maintaining seated postures for long periods of time interspersed with sudden bouts of activity. Due to his body habitus and the design of the belt, he advised me that most of [the] occupational activities were spent rotated to the right while seated. His symptoms are partially settled with cessation of his occupational activities, however, he has some residual impairment.”[23]
[22]PCB 48
[23]PCB 52
43 In a supplementary report, Dr Slesenger added:
“Nevertheless, I note the onset of Mr Borazio’s symptoms during the course of his employment. He describes a specific aggravation due to the awkward postures he was required to maintain while sitting in a police vehicle for long hours.
I remain of the opinion that there is a temporal association, as well as a plausible link between the onset of his symptoms and his occupational capacity.”[24]
[24]PCB 55
44 Mr Hooper examined the plaintiff on 22 May 2013. It would appear that he was posed the same question: whether the wearing of the equipment belt was a cause of the plaintiff’s injury. The injury which Mr Hooper diagnosed was degenerative disease in the plaintiff’s lower back involving the L5 nerve root which he considered might explain the plaintiff’s complaints of pain in his left leg. He said:
“12.I think it is very hard to associate his symptoms with … the police force. He stated that he had never had any accident or injury, and he has never had time off work. However, his symptoms did start during his work with the police force in 2007.
…
15.He did not mention to me any injury, in fact, he denied any specific accident or injury. He said his pain came on over a period of time which he attributed to wearing the equipment belt/sitting in the car. I think it is hard for me to justify his symptomatology in relation to his work with the police force. I think it can be regarded as being age-related, constitutional and degenerative.”[25]
[25]DCB 65
45 Professor Brazenor examined the plaintiff on 26 April 2013. Professor Brazenor was provided with a number of documents in a letter of instruction. From those documents he made the following very relevant observation:
“I note that potentially back-injurious activities to which Mr Borazio has been exposed in the past include working as at an electrician for an unspecified period of time; working as a policeman between 2000 and 2009; further work as an electrician from March 2009 to February 2010; stacking, lifting and carrying electricity meters between February 2010 and February 2012; physiotherapy to [the] spine; and ‘some work on the rowing machine’ in the gymnasium”.[26]
[26]DCB 54
46 Professor Brazenor obtained a fairly long history from the plaintiff of the work which he had performed from about 2000. He also obtained a reasonable history of the medical treatment which the plaintiff has obtained since he first suffered pain in his lower back.
47 On examination, Professor Brazenor did not find any significant abnormality. He examined the MRI scan performed on 20 August 2012. He considered that the L5-S1 disc was more deflated than other discs shown on the MRI scan and it was much darker on T1 weighted images. There was also mild retrolisthesis of L5 on S1. He considered that the disc contour was almost normal. He considered that there was very, very slight bulging of the disc in the left posterior quadrant. He did not consider that the appearance of the disc warranted being described as a protrusion.
48 Professor Brazenor noted that when the plaintiff ceased working as a police officer, he did not mention that the equipment belt had caused him lower back pain. He also referred to the significant gap between the cessation of his work as a police officer and the onset of the more significant symptoms of his lower back condition with the first radiological examination of his lower back being performed on 21 March 2011 and the MRI scan on 20 March 2012. On the question of causation, he said:
“ Mr Borazio brought a service belt with him today, together with the items of equipment which generally are attached to it (other than the firearm), and I have in fact been shown this belt before by Victoria Police officers who were my patients. What is notable is the extremely inconvenient positions of the holstered pistol on the right hip and, more to the point, the rather large radio unit with surprisingly sharp corners and a surprisingly ‘boxy’ shape seated directly over the left sacroiliac region. I absolutely accept (and have accepted for some time) the premise that it is very uncomfortable for officers to sit in any form of vehicle whilst wearing these belts, and at the time they were issued there was no other option: items of equipment could not be removed from the belt in case they had to get out in a hurry, in which case they would need all the equipment with them.
Nevertheless, it has always been my opinion and it remains my opinion now, that although sitting uncomfortably with this belt can cause temporary back discomfort, I have never been convinced that the belt was capable of actually causing back injury. There is no mechanism that I can imagine which would cause lasting back injury.”[27]
[27]DCB 60
49 Mr Kudelka noted that Professor Brazenor did not have all of the radiology. Mr Kudelka had a CT scan taken on 22 July 2014. Professor Brazenor did not. The CT scan showed a mild bulge at L4-5 and a broad-based disc bulge at L5-S1 bulging to the left.[28] Neither the MRI scan nor the CT scan has been reproduced in the Court Books. I do not know whether they demonstrate similar appearances. Although Mr Kudelka made the observation that Professor Brazenor did not have the CT scan, he did not make any comment about whether they demonstrated similar appearances or something quite different and distinct.
[28]PCB 60
Analysis of the evidence
50 The issues which appear to me to require determination are, firstly, did the plaintiff suffer an injury to his lower back when he worked as a police officer between 2000 and 2008; secondly, what injury did he suffer; thirdly, if he suffered an injury, is it the same injury which the medico-legal surgeons have commented on more recently, and fourthly, is he a creditworthy and reliable witness?
51 I accept that the plaintiff wore an equipment belt of the kind he described in his first affidavit. I accept that it created a level of discomfort which resulted in him suffering pain in his lower back. I am comfortable in reaching those conclusions primarily because of the letter of Dr Nolan dated 24 November 2007 which is approximate to the time when the plaintiff began to suffer pain in his lower back.
52 Apart from the evidence given by the plaintiff of the treatment he obtained from Mr Reeves and Mr Berg, the only direct evidence of treatment are the clinical notes of Dr Courtney, which I have summarised above. It is simply not possible for me to determine what medical condition the plaintiff was complaining about except that there are references to his lower back and thoracic spine. It would appear that the diagnoses made were of muscle strains.
53 Despite suffering lower back pain, the plaintiff obtained employment with the Australian Federal Police. He moved to Canberra for three or four months, where he undertook training at a college. He has not described what that training involved. It must have involved physical effort which would have put his lower back under some strain.
54 The reason the plaintiff gave for ceasing his training with the Australian Federal Police had nothing to do with his lower back injury. In his first affidavit, he said that he resigned because he wanted a change in his life direction because of his mother’s death.[29] However, in an email from the plaintiff to the Australian Federal Police dated 24 February 2009, he gave an entirely different reason. The plaintiff was subject to a professional standards investigation. He said that he regretted and apologised for his actions. He said that he was to commence alternative employment on 9 March 2009, and that his last day of service would be 6 March 2009.[30]
[29]PCB 20
[30]DCB 232
55 The plaintiff said that the reason why he did not refer to his mother’s death as being an additional reason for resigning was because he wanted to keep his private life and his professional life separate. Whether that is so or not, it is clear that he resigned for reasons other than any incapacity caused by his lower back condition. Indeed, he added that he regarded the Australian Federal Police as his career, and that he would have “preferred to have stayed”.[31]
[31]Transcript 23
56 The plaintiff subsequently worked with HRV. The work he performed with HRV was the installation of power points in the ceilings of domestic premises. He described the work and the reason why he had that job for only nine months as follows:
Q:“In the meantime, the power points you had been installing were mainly to higher parts of particular rooms?---
A:Yes.
Q:Because it was for a particular appliance?---
A:Yes.
Q:So that would you be able to give His Honour an idea, was it close to the edge of the ceiling or actually on the ceiling?---
A:It was inside the ceiling space, Your Honour, and it was generally located right where the manholes was. Manholes are usually located within laundries premises and sometimes it involved getting up in the ceiling space and sometimes it involved just standing on top of the ladder and doing the work there because I could tap off a power point which was directly below me in the laundry generally, the one that was for the washing machine.
Q:You would have to do the rewire - you would have to continue the wiring from such a power source up to the plug that was to be installed at or near ceiling height?---
A:Yes.
Q:Of course it involved, if one was using proper practice, the use of a ladder?---
A:Yes.
Q:At the very least and, as well as a ladder, climbing into, from time to time, the ceiling cavity?---
A:Yes, Your Honour.
Q:And perform such work in such a space?---
A:Yes.
Q:The only thing that brought that to an end was you being made redundant?---
A:Yes.”[32]
[32]Transcript 29-30
57 The plaintiff then commenced employment with Skilltech in about February 2010. In his first affidavit, he described having difficulty performing the work required of him. He said that the lifting and carrying of boxes of electricity smart meters was something he could only do for a short period of time because it resulted in an increase in pain in his lower back. He said, as a consequence, he would pay for doing that work, and after a day’s work he would have to lie down in bed.[33] However, under cross examination, the plaintiff revealed that he only performed this physical work for a fraction of the time he was with Skilltech:
[33]PCB 25
Q:“And you heard counsel on your behalf opening the case to the court that initially you were doing some sort of work with Skilltech but ultimately you became a supervisor?---
A:That's correct.
Q:But before that you were doing more manual type work before the supervision work?---
A:Yes.
Q:Were you doing the actual installing of the electricity meters yourself?---
A:Yes I was.
Q:You were with Skilltech were you not for around about two years?---
A:A bit longer than two years, from memory.
Q:For how long, of the period that you were with them, had you become a supervisor?---
A:The vast majority of that. I think I was installing meters for six weeks and then I moved to auditing, which didn’t require any - very minimal physical work, taking covers off meters to make sure that wiring had been done correctly and that was probably for another two months. Then after that I obtained a management position.
Q:To be fair to yourself that was, was it not, as a result of your efforts in the field, as it were, you were promoted within the company?---
A:Not so much through my efforts in the field but I think, how can I put it? I showed a little bit more initiative and intelligence, I suppose, to some of the other tradesmen that were there.
Q:I might have put it in a clumsy way, when I say efforts in the field, but you demonstrated with your work that you had some, if I could put it in a very basic form, you had intelligence and initiative in ways to get on with the work and that you were well motivated to do it?---
A:I’d regard myself, Your Honour, as a lateral thinker and I think that probably shone through more than the quality of my work. As far as quality of work in installing meters, there really isn’t much to it. You take one meter off and you put one meter on. It’s the things around the edges, you know, turning up on time, being reliable, going out of my way to assist other people. I think that’s probably what promoted me more so than quality of work.
Q:What I am putting to you is that Skilltech regarded you as a good employee?---
A:Yes.
Q:And hence the promotion?---
A:Yes.
Q:It was just that, going back my earlier question, it was a promotion?---
A:Yes, definitely.
Q:Then unfortunately for yourself that also came to an end. Incidentally, without those two retrenchments, that is from HRV to begin with and secondly Skilltech I suggest that you would have remained certainly with one or other, particularly with Skilltech, if there had not been the unfortunate situation that it faced in the economy, that you may well be still with that company?---
A:That’s correct, I was looking for employment while I was with HRV but certainly with Skilltech I would have been happy to remain in a supervisory position.”[34]
[34]Transcript 31-32
58 Contrary to the flavour of the plaintiff’s affidavit, I take the consequences that he described to be limited to the six-week period before taking on the supervisory role. The plaintiff’s employment with Skilltech was otherwise unaffected. Indeed the plaintiff would have remained in this role had he not been made redundant.
59 The plaintiff worked with Skilltech until about August 2013.[35] While he was working with Skilltech he completed a diploma in project management at Holmesglen TAFE.[36]
[35]Transcript 32
[36]Transcript 32-33
60 As far as I can determine, the plaintiff had very little treatment between mid-2008 and when he first saw Dr Lovell on 14 April 2011. During that period, he worked full time with HRV and with Skilltech. Even with the use of the clinical notes and the reports of Dr Lovell, it is difficult for me to determine what lower back condition the plaintiff was suffering from when he was referred to Dr Lovell. The best I can make of Dr Lovell’s reports is that he considered that the plaintiff’s pain was most likely coming from his sacroiliac joints.[37]
[37]PCB 36
61 At the time when the plaintiff applied to join the Australian Federal Police, he was required to undergo a medical examination. He admitted to suffering a muscular problem with his lower back in 2006. However, the examining medical practitioner was told by the plaintiff that it was a “one off” problem from which he fully recovered.[38]
[38]DCB 218-221
62 Before the plaintiff was employed by HRV, he completed a pre-employment health assessment questionnaire on 15 March 2009. In answer to question 3(e), which asked whether he had suffered from any work-related health conditions, he answered that he had suffered minor injuries. In answer to question 4(g), he denied having suffered any previous back problems, and in answer to question 4(u), he denied having any disabilities affecting his capacity to stand, sit, walk, lift, drive or climb stairs.
63 The denial by the plaintiff, during the medical examination and in the questionnaire, occurred at a time when the plaintiff said that he was troubled by an injury to his lower back. He sought to downplay the medical examination by saying that there was not much to the medical examination.[39] In relation to the questionnaire he sought to downplay it as well. It appears to me that the medical examination and the questionnaire demonstrate that the plaintiff was prepared to represent to a prospective employer that he was fit, well and able to undertake the tasks associated with the duties involved in the employment he was applying for.
[39]Transcript 42-43
64 Before the plaintiff was referred to Mr Brighton-Knight he does not appear to have demonstrated any clinical signs consistent with a disc injury with neural compression. It is very clear that Mr Brighton-Knight understood that the plaintiff had undergone an injection as a diagnostic test, and that the MRI scan, which he inspected, demonstrated a foraminal disc herniation, which was irritating the L5 nerve root. It would appear that it was at that point that the first diagnosis of a disc injury was made.
65 Despite the plaintiff’s attempt to impress Mr Brighton-Knight that it was the equipment belt which had initiated his lower back pain and was likely to have been responsible for the disc injury, Mr Brighton-Knight could not have stated his opinion on that issue any more clearly than he did. He simply did not accept that there was a causal relationship between wearing the equipment belt and the disc injury.
66 Pausing here, the only conclusion which the evidence thus far is capable of pointing to is that the plaintiff suffered some discomfort in his lower back as a result of wearing the equipment belt. Again, the best I can do from the clinical notes is to conclude that whatever was the cause of the discomfort, it was more likely to have been muscular and not discal.
67 I think there is something in the opening observations made by Professor Brazenor. He considered that it was inconsistent with a proper appraisal of the cause of the plaintiff’s discal injury to ignore the fact that the plaintiff had performed other work since ceasing work as a policeman with Victoria Police. Some of that work, at least with HRV, appears to me to have been physically arduous work which would have placed strain on the plaintiff’s lower back. Even in the supervisory role, which the plaintiff occupied with Skilltech, he was still involved in activity which would have placed some strain on his lower back, but probably less when compared with the work he was doing with HRV.
68 There seems to be little doubt that the plaintiff’s present lower back condition is as described by Mr Brighton-Knight, Mr Hooper, Professor Brazenor, Mr Kudelka and Dr Slesenger. They each have considered the place for surgery to ameliorate the plaintiff symptoms of leg pain.
69 Mr Hooper and Professor Brazenor, like Mr Brighton-Knight, do not accept that wearing the equipment belt would produce a discal injury. Whereas Mr Kudelka appears to be convinced that there is a causal connection.
70 Dr Slesenger appears to consider that there are three causes – wearing the equipment belt; maintaining seated postures for long periods of time, and sudden bouts of activity. His opinion is not quite as strong as Mr Kudelka’s, because he then said that he was satisfied that there was “a temporal association” between the onset of the plaintiff’s lower back pain and wearing the equipment belt. He then added that there was “a plausible link between the onset of his symptoms, and his occupational capacity”. It is not clear to me what he meant by the expression “occupational capacity”, but contextually he appeared to be working on the basis that it was the wearing of the equipment belt, maintaining seated postures for long period periods of time, and sudden bouts of activity that contributed to the production of the plaintiff’s lower back condition.
Conclusions
71 I am not satisfied that the disc injury was caused by the plaintiff wearing the equipment belt in his employment as a police officer with Victoria Police.
72 There are a number of factors which militate against such a finding:
· The initial diagnoses, through 2008 and before the plaintiff saw Mr Brighton-Knight, appear to be a lower back condition, which is muscular rather than discal.
· The plaintiff has not had any significant periods of time off work. The real reason why he stopped work with the Australian Federal Police was because of conduct on his part, which saw him the subject of a professional standards investigation. In any event, the plaintiff intended to continue with that employment because it is in apparent that he was fit enough to tolerate the duties of a police officer.
· Furthermore, the plaintiff subsequently worked with HRV and Skilltech without incident. The duties he performed with HRV appear to me to have been relatively arduous. The same cannot be said of the duty to perform with Skilltech. However, it would appear that he did not have any significant time off with either employer. It is also highly relevant that if he had not been made redundant by HRV or Skilltech, that he would still be working with both employers. The plaintiff continues to work in self-employment as an electrician.
· It is odd that there are no conventional medical reports from Mr Reeves, Mr Berg, Dr Courtney, Dr Lovell and Mr Brighton-Knight. In a case involving causation, it is imperative that the plaintiff establish that the initial treatment, and the treatment which followed, is consistent with the plaintiff suffering an injury. In this instance, there is very little medical evidence to demonstrate that the injury diagnosed, for example, by Mr Kudelka, is the same injury suffered by the plaintiff when he worked as a police officer with Victoria Police.
· The latter point brings me to the observation made by Professor Brazenor, who essentially was of the opinion that there are other hypotheses: that the disc injury was caused by the plaintiff’s other work, or that its occurrence might be entirely coincidental or idiopathic. If there are competing hypotheses, then the plaintiff must demonstrate that the other competing hypotheses are unsustainable. He has not, in my opinion, done that.
· There is a strong body of medical opinion from Mr Brighton-Knight, Mr Hooper and Professor Brazenor that, in their opinion, the wearing of an equipment belt cannot be implicated in the causation of the disc injury. They are all surgeons involved in the treatment of spinal conditions. I think their opinions are compelling, and I prefer their opinions to those of Mr Kudelka and Dr Slesenger. I am particularly persuaded by the opinion of Mr Brighton-Knight. He was aware that the plaintiff wanted him to accept that the wearing of the equipment belt was the cause of the disc injury. As is apparent, Mr Brighton-Knight would not accept that proposition. His non-acceptance must mean that he considered that the disc injury occurred by another cause, or perhaps causes. It is an opinion consistent with the observation by Professor Brazenor that there might be other hypotheses which can equally be implicated in the causation of the disc injury. It follows that Mr Hooper is of a similar opinion.
73 On the basis of the foregoing, I am not satisfied that the disc injury suffered by the plaintiff was caused by the plaintiff’s employment as a police officer with Victoria Police.
Orders
74 Therefore, I order that the plaintiff’s Originating Motion be dismissed with costs.
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