Bridger v Wellington Shire
[2016] VMC 2
•9 FEBRUARY 2016
| IN THE MAGISTRATES COURT OF VICTORIA |
AT LATROBE VALLEY
WORKCOVER DIVISION
Case No.F13006256
| ROBERT BRIDGER | Plaintiff |
| v | |
| WELLINGTON SHIRE COUNCIL PTY LTD | Defendant |
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MAGISTRATE: | S GARNETT |
WHERE HELD: | LATROBE VALLEY |
DATE OF HEARING: | 4 FEBRUARY 2016 |
DATE OF DECISION: | 9 FEBRUARY 2016 |
CASE MAY BE CITED AS: | BRIDGER v WELLINGTON SHIRE |
MEDIUM NEUTRAL CITATION: | [2016] VMC002 |
REASONS FOR DECISION
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Catchwords: Rejection of application for reinstatement of weekly payments – termination of entitlement to reasonable medical treatment expenses – whether worker incapacitated for pre-injury employment duties – whether any incapacity materially contributed to by back injury sustained on 30 November 2011.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Horner | Maurice Blackburn |
| For the Defendant | Mr Richards | Minter Ellison |
HIS HONOUR:
1 Mr Bridger is 61 years of age and was employed by the defendant as a road management, general operator between 12 August 2002 and 4 December 2015. He sustained injuries to his lower back in the course of his employment on 30 November 2011 when picking up a rubber road sign base weighing approximately 15 kg and placing it on the back of a slasher attached to a tractor.
2 The evidence revealed that he lodged a WorkCover claim on 1 December 2011 for which liability was accepted and that he was incapacitated for work until 20 December before returning to work on restricted duties. He then had a flare up of symptoms when lifting meat in a supermarket on 23 January 2012 which required a further 10 days off work for which he received WorkCover payments. He then returned to work on modified duties until his employer stood him down following a functional capacity evaluation on 11 March 2015 and a worksite assessment on 7 May 2015.
3 On 9 April 2015, Allianz gave notice of their intention to terminate his entitlement to ongoing medical treatment expenses. On 10 June 2015, Mr Bridger made application for reinstatement of his weekly payments from 1 May 2015 which was rejected by Allianz on 26 June 2015.
4 Mr Bridger gave evidence and the parties tendered numerous documents, medical records and reports. The issue for the court to determine is whether he still suffers from a work-related injury and incapacity which entitles him to weekly payments of compensation and payment of medical treatment expenses.
5 Mr Bridger gave evidence that his job involved numerous tasks including; driving a truck, tractor and grader; shovelling gravel and sand; raking road materials; using a chainsaw to remove fallen trees and to prune; replacing road posts using a posthole rammer and shovel; repairing and replacing timber decking on bridges; replacing metal or wooden railings; using waker plates or rollers to compact road fill; manual cleaning of culverts; lifting bags of cement and culvert lids; tractor slashing and using a multi-roller behind a grader; spraying weeds and holding a stop-slow traffic control sign. The work site assessment report from nabenet indicated that these jobs required him to perform physical tasks including; prolonged sitting whilst driving plant vehicles; frequent lifting of materials, tools and signs; bending and twisting when performing plant maintenance work; and, accessing trucks, tractors and front end loader cabins.
6 Mr Bridger told the court that his work hours consisted of him working 8 and half hours per day 5 days per week one week and 8 and half hours per day 4 days the 2nd week. He said that the weight of the equipment he used varied as did the material he was required to lift. He estimated the weight of posts to be 15 to 20 kg, bags of cement to be approximately 20 kg, the whipper snipper and harness to be 15 kg, chainsaws to be approximately 15 kg and the Wacker plate to be 63 kg. He said that he would seek the assistance of fellow workers when lifting or manoeuvring the heavier items from the trucks.
7 Mr Bridger gave evidence that when he returned to work he was placed on modified duties with those restrictions being eased over time. He recalled that initially weight restrictions were imposed and a prohibition on using chainsaws. He told the court that since sustaining the injury to his back he has always experienced pain for which he occasionally takes medication in the form of panadeine forte but no longer receives active medical treatment apart from undertaking daily home exercises as previously recommended by a physiotherapist. He said that he continues to experience an ache in his low mid back area and certain activity makes the pain worse such as sitting or standing for too long. He also told the court that he underwent a left hip replacement operation in November 2013 which required him to be off work for 2 months. Mr Bridger said that his employer stood him down following receipt of a functional capacity evaluation assessment and a report from Associate Professor Love who assessed him on behalf of Allianz on 17 March 2015, because they did not want him to “hurt myself”.
8 In cross examination, Mr Bridger agreed that since returning to work in December 2011 he submitted modified duty certificates until November 2015. He also agreed that he could perform most of his pre-injury employment tasks and was able to do so from the time he returned to work until his employer stood him down. He agreed that 90% of his work involved driving and 10% involved the other tasks he described in evidence. Mr Bridger conceded that prior to him sustaining injury on 30 November 2011, he did not perform all of the jobs as set out in his job description and that after 30 November 2011 there was not much change in the tasks he was required to perform. He agreed that his treating doctors have never referred him to a specialist and that the only treatment he has received is limited physiotherapy, occasional use of medication and performing exercises at home. Mr Bridger conceded that despite not working since April or May 2015 there has been no change in the condition of his back and that if he was not stood down he would have continued to perform the duties he was undertaking at that time which were 90 to 95% of the duties he was performing pre-injury. He told the court that he no longer suffers from any symptoms relating to his left hip and that it does not restrict his capacity to work.
Medical Evidence
9 Dr Petrov reported on 26 June 2015 that apart from Mr Bridger’s work-related lower back injury, his left hip osteoarthritic condition for which he underwent a left hip replacement in 2013 contributed significantly to his ongoing disability and that he finds it difficult to perform any physical activity without experiencing increasing lower back pain and stiffness. He recommended that Mr Bridger undergo physiotherapy and hydrotherapy treatment together with pain management and medication and that he avoid any physical activities which would aggravate his chronic lower back and left hip pain. He noted that a CT scan performed on 19 June 2015, indicated multilevel disc bulges with impingement of the right L5 nerve root.
10 The Functional Capacity Evaluation Report dated 12 March 2015 and prepared by Mr Woolley on behalf of Allianz notes that when assessed on 11 March, Mr Bridger complained of intermittent stabbing pain in his low back and buttock; lower limb weakness, reduced strength with lifting and reduced physical tolerances when walking, standing and sitting. Mr Bridger told Mr Woolley that he was taking voltaren 1-2 per month, panadeine forte 1-2 per month and Panadol 1 per week. He reported pain levels between 2/10 and 7/10 at worse and told Mr Woolley he experienced increased discomfort when twisting his low back, lifting and carrying items in front of him and prolonged sitting, standing and walking. The report indicated that his current duties involved him using a tractor to slash and mow grass, performing grader work on roads and the occasional use of a shovel and hammer to replace marker posts. Mr Bridger told him that these duties require him to work at various positions, involved frequent sitting but did not require him to lift over 20 kg or perform repetitive prolonged lifting and carrying tasks or to use a chainsaw or crowbar. He also told him that any duties that require pushing and pulling for greater the one hour resulted in increased pain in the low back. On assessment it was noted that he had reduced tolerance with sitting, kneeling, stooping, standing and reaching forward, limited tolerance when squatting, reduced tolerance when negotiating stairs and reduced capacity for repetitive lifting of weights of 20 kg. Mr Woolley reported that Mr Bridger had a functional ability to undertake certain duties but that he should not complete tasks which require repetitive squatting in order to lift and carry items; that he undergo manual handling training; that he not complete tasks which require repetitive and sustained squatting and that he have an ability to change his posture regularly. He reported that the assessment tests performed by Mr Bridger were ceased by him as it appeared to him that Mr Bridger appeared to push himself beyond his pain threshold during the assessment.
11 The report of nabenet dated 21 May 2015 prepared by Occupational Therapist, Kelsey Pringle, following an assessment on 7 May noted that Mr Bridger complained of lower back pain and had difficulty completing heavy lifting tasks and decreased sitting tolerance as a consequence of his injury. After reviewing the Functional Capacity Evaluation Report, the report of Mr Love dated 17 March 2015, Mr Bridger’s job description and the current WorkCover certificate issued by Dr Abbas which noted he had a capacity for suitable employment with the following work restrictions “repetitive movements and heavy lifting is an issue, so should be avoided”, the assessor considered that Mr Bridger did not have a current capacity to complete all the inherent requirements of his pre-injury role.
12 Mr Battlay assessed Mr Bridger on 18 October 2012 and diagnosed that he was suffering from lumbar spondylosis which was aggravated at work. He opined that his condition was a combination of age related changes and work related aggravation. Associate Professor Love, Orthopaedic Surgeon, assessed Mr Bridger on behalf of Allianz on 23 June 2014 and 17 March 2015. In his initial report, he diagnosed that Mr Bridger had degenerative disease of the lumbar spine of a mild degree. In his initial report he accepted that the incident aggravated the underlying degenerative condition which was temporary and that he had been left with a permanent mild to moderate impairment. He stated that Mr Bridger’s condition was consistent with his age which was a mild to moderate degenerative disease condition of his lumbar spine but the injury on 30 November 2011 had not resolved in that he was still suffering from intermittent symptoms with certain activity. He also noted that he was essentially doing the majority of his pre-injury duties with the exception that he was no longer using a chainsaw.
13 On 17 March 2015, Associate Professor Love obtained a history from Mr Bridger that he was doing 90% of the tasks that he was employed to do but stated that chain sawing was the one task that was difficult for him in that he was required to hold the chainsaw in front of him which put an excessive load on his spine. He also told Mr Love that when he was recently raking gravel he developed backache. Mr Bridger told him that he continued to experience low back pain without significant referred leg pain and only occasionally takes medications. Mr Love diagnosed that Mr Bridger suffered from a musculo ligamentous soft tissue injury of the lumbar spine probably involving the lumbar intervertebral discs. He stated that his prognosis was to continue working until the usual retirement age providing he is employed in a slightly reduced capacity not using a chainsaw. He opined that the aggravation from the lifting incident on 30 November 2011 had ‘quite probably’ ceased and could reasonably be considered as a constitutional condition. He also agreed with the work restrictions as set out in the Functional Capacity Evaluation Report. Mr Bridger gave evidence that when assessed by Mr Love on 17 March he was in his rooms for no longer than 2 minutes and after being questioned by Mr Love as to why he was attending he simply asked him to ‘turn around, bend over and touch your toes’ and was then told by Mr Love ‘you’re the same as before, you can go now’.
14 Mr Moran, Orthopaedic Surgeon assessed Mr Bridger for the purposes of an impairment claim on 18 November 2015. He obtained a history from Mr Bridger that he had low back pain which was present most of the time and that he was taking medication when required. He diagnosed that Mr Bridger had aggravated multilevel disc degeneration and facet joint degeneration in his lumbar spine resulting in a 5% whole person impairment pursuant to the Guides.
15 Mr Kossmann, Orthopaedic Surgeon assessed Mr Bridger on behalf of his lawyers on 22 December 2015. Mr Bridger told him that he has pain in the lumbar spine, has difficulty sleeping and when sitting or standing for long periods or driving long distances. After reviewing radiological reports and conducting an examination he diagnosed that Mr Bridger is suffering from discogenic and mechanical back pain on the basis of significant degenerative changes in the lumbar spine, in particular affecting the L3-4, L4-5 and L5-S1 levels. He recommended further treatment in the form of pain medication, anti-inflammatories, physiotherapy, hydrotherapy and possibly acupuncture. Mr Kossmann is of the opinion that Mr Bridger has no capacity to return to his pre-injury employment or physically demanding work as he is not able to walk long distances or walk on uneven ground, upstairs or downstairs or on inclines and declines, climb up and down ladders, kneel, squat or carry heavy items weighing more than 5 kg. He does not believe Mr Bridger can return to any employment and considers him to be 100% incapacitated.
16 Dr Barton, Occupational Physician assessed Mr Bridger on behalf of the defendant’s lawyers on 14 January 2016. He obtained a history from Mr Bridger that after returning to work in January 2012 he continued working until around April 2015 performing 95% of his pre-injury duties. Mr Bridger told him that he was not using the chainsaw and not lifting heavy items particularly with the arms outstretched. Mr Bridger also told him that he takes Panadol Forte and other medication depending on his pain. He also told him that his condition has remained the same since ceasing work and that he continues to experience midline lower back pain with a dull ache present all the time. He said that his pain is made worse with lifting and leaning forwards. Dr Barton is of the opinion that Mr Bridger sustained a temporary back problem following some lifting in the setting of constitutional degenerative changes in his back. He concluded that his work related soft tissue injury has resolved and that he has been left with generalised symptoms relating to the underlying constitutional degenerative changes. Accordingly, he is of the opinion that Mr Bridger has recovered from his work injury and his employment is no longer a materially contributing factor to his current condition. He is also of the opinion that he would be able to return to 95% of his pre-injury duties which he was performing prior to ceasing work. He recommends that he does not lift weights of more than 15 kg, does not adopt awkward or constrained postures and does not perform chainsaw work.
17 The parties tendered various medical certificates dated between 1 January 2014 and 6 January 2016. The initial modified duties certificates contain restrictions that Mr Bridger should not lift more than 20 kg and should not use a chainsaw. From 1 December 2014 until 1 May 2015, the restrictions indicated that he should not perform repetitive movements and heavy lifting and that he could squat, kneel and lift with modifications. On 6 January 2016, Dr Petrov provided a Centrelink certificate indicating that Mr Bridger has chronic low back pain limiting his ability to do any physical work and that repetitive movements and heavy lifting should be avoided.
Conclusion
18 I found Mr Bridger to be a genuine and truthful witness and a stoic individual who appeared to overestimate his ability and capacity to return to his former duties. He readily made concessions against his interests during cross examination. I accept his evidence that he has been able to perform 90 to 95% of his pre-injury duties since returning to work in December 2011 notwithstanding his complaint of continuing low back pain. However, the evidence he gave and the assessments conducted by Mr Woolley and Kelsey Pringle shortly prior to ceasing work at his employer’s request in April/May 2015 confirm that his back condition prevented him from performing each and every aspect of his pre-injury duties. The fact remains that at the time he ceased work at the request of his employer he was still required to perform, albeit on rare occasions, chainsaw work, raking of road surfaces, prolonged sitting whilst driving a tractor and grader, the use of a shovel, some lifting and maintenance work on the tractor and slasher when required. He continued to perform these duties notwithstanding ongoing and unrelenting low back pain.
19 I accept the evidence of Mr Bridger that he has continued to suffer from low back pain since the incident on 30 November 2011 and that as a consequence he is unable to perform each and every aspect of his pre-injury employment duties and would have difficulty coping if he was required to sit for prolonged periods whilst driving a tractor or loader. I accept and prefer the opinions of Dr Petrov, Mr Kossmann and Mr Moran that the incident at work aggravated a pre-existing degenerative condition in his lumbar spine, the effects of which are continuing.
20 Mr Bridger is therefore entitled to weekly payments of compensation and payment of reasonable medical and the like expenses in accordance with the provisions of the Act.
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