Bullock v Global Logistics
[2022] NSWPIC 138
•31 March 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Bullock v Global Logistics [2022] NSWPIC 138 |
| APPLICANT: | Wayne Bullock |
| RESPONDENT: | Global Logistics |
| MEMBER: | Brett Batchelor |
| DATE OF DECISION: | 31 March 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for weekly benefits and section 60 of the Workers Compensation Act 1987 (1987 Act) expenses by a worker relying on injury in accordance with s 4(2)(b)(ii) of the 1987 Act; the respondent alleged the pre-existing degenerative condition in the applicant’s lumbar spine, caused by an earlier back injury and surgery thereon, was not aggravated or accelerated by the nature and conditions of his employment as a truck driver, but what caused him to cease work was the inevitable progression of the pre-existing condition; detailed examination of the medical evidence and the duties of the applicant in the employ of the respondent both as a loader and then truck driver over the 19 years of his employment which post-dated his earlier injury and surgery; finding that the applicant’s employment was the main contributing factor to the aggravation or acceleration of the pre-existing condition; finding that the applicant has no current work capacity; awards in favour of the applicant for weekly benefits pursuant to sections 36 & 37 of the 1987 Act and for costs and expenses pursuant to section 60 of that Act. |
| DETERMINATIONS MADE: | 1. The applicant sustained injury arising out of or in the course of his employment with the respondent deemed to have occurred on 25 October 2021. 2. The injury was the aggravation or acceleration of a pre-existing condition in the lumbar spine. 3. The applicant’s employment with the respondent was the main contributing factor to the aggravation or acceleration of the pre-existing condition in the lumbar spine. 4. Since 25 October 2021 the applicant has had no current work capacity. 5. The respondent is to pay the applicant $2,168.75 per week for the period from 25 October 2021 to 24 January 2022 pursuant to s 36 of the Workers Compensation Act 1987. 6. The respondent is to pay the applicant $1,826.32 per week from 25 January 2022 to date and continuing pursuant to s 37 of the Workers Compensation Act 1987. 7. The respondent is to pay the applicant’s costs and expenses pursuant to s 60 of the Workers Compensation Act 1987. |
STATEMENT OF REASONS
BACKGROUND
Wayne Bullock (the applicant/Mr Bullock) claims weekly benefits compensation pursuant to ss 36 and 37 of the Workers Compensation Act 1987 (the 1987 Act) for injury to his back arising out of or in the course of his employment with Global Logistics (Toll/the respondent) as a truck driver from 2003 until 25 October 2021. Mr Bullock claims that he aggravated a pre-existing back condition due to the nature and conditions of his employment, including hauling and unloading heavy glass panels, and other onerous duties associated with a long haul truck driver.
The applicant sustained a previous injury to his lower back in 1994 whilst lifting heavy cables. He came under the care of Dr Matthew Giblin, orthopaedic surgeon, who in 1994 carried out an L5 decompression and then in 1995 an L5/S1 fusion. Mr Bullock began truck driving for Manpower in 2002 and was seconded to Toll where he became a permanent employee in 2003.
The applicant claims that he was getting sore in his back driving trucks for Toll, and began noticing this soreness around four to six months before October 2021. He consulted
Dr Todorovic, his general practitioner, on 25 October 2021 and lodged a claim for workers compensation on that day. Dr Todorovic referred Mr Bullock for a CT scan of his lumbar spine on 25 October 2021, and on 26 October 2021 referred him to Dr Giblin.The applicant has not returned to work since 25 October 2021.
The applicant was independently medically examined by Dr Muratore, sports and exercise physician, on 9 November 2021 at the request of the respondent. Dr Muratore produced a report on that day in which he said that Mr Bullock’s employment had not caused an aggravation, acceleration, exacerbation or deterioration of his lumbar spine condition, which had just occurred with time, and that employment was not the main contributing factor to his current presentation[1].
[1] Reply p 13 (noting page references herein are to those in the Commissions electronic records).
On 17 November 2021 the respondent issued to the applicant a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) in which it declined liability for the applicant’s claim for weekly compensation benefits and medical expenses[2].
[2] Application to Resolve a Dispute (ARD) p 5.
The applicant was independently medically examined by Dr Gehr, orthopaedic surgeon, on 29 November 2021 at the request of his solicitor. Dr Gehr produced a report of that date in which he said that it is realistic to consider Mr Bullock’s current condition as an aggravation of the previous work injury, and that the nature and conditions of employment had aggravated the applicant’s initial subject accident[3].
[3] ARD p 33.
On 6 December 2021 Dr Muratore issued a supplementary report commenting on the opinion of Dr Giblin given in a report dated 8 November 2021[4], and the report of Dr Gehr of 29 November 2021. Dr Muratore did not agree that Mr Bullock’s current employment was a substantial contributing factor to the aggravation of degenerative changes, or that the “nature and conditions” of his employment with Toll were contributing factors to development of low back pain and right radiculopathy[5].
[4] ARD p 54
[5] Reply p 24.
On 14 December 2021 following a request for review by the applicant’s solicitor, the respondent issued to the applicant a notice pursuant to s 287A of the 1998 Act in which it summarised the evidence of Dr Giblin, Dr Muratore and Dr Gehr, the relevant legislation in the 1987 Act, and confirmed the denial of liability for the applicant’s claim given in the s 78 notice dated 17 November 2021[6].
[6] ARD p 17.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) Was the applicant’s employment with the respondent the main contributing factor to the aggravation, acceleration, exacerbation, or deterioration of the pre-existing condition in the applicant’s lumbar spine (s 4(2)(b)(ii) of the 1987 Act?
(b) Was the pre-existing pathology in the applicant’s lumbar spine made worse by the claimed aggravation or acceleration of the pre-existing condition in the lumbar spine?
(c) Has the applicant sustained partial or total incapacity as a result of the claimed aggravation or acceleration of the pre-existing condition in the lumbar spine?
(d) Is the applicant entitled to an award in his favour for the cost of medical, hospital and rehabilitation expenses as a result of the claimed aggravation or acceleration of the pre-existing condition in the lumbar spine?
The parties agree that if there is an award of weekly benefits in favour of the applicant, he will be entitled to the appropriate percentage of the maximum weekly compensation amount, pursuant to s 34 of the 1987 Act, in respect of such entitlement pursuant to ss 36 and 37 of the 1987 Act. The agreed s 34 amount as at 25 October 2021 is $2,282.90 per week.
PROCEDURE BEFORE THE COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties attended a conciliation conference/arbitration hearing conducted via telephone conference on 23 March 2022. Mr Tanner of counsel appeared for the applicant briefed by Mr Tohme. The applicant attended on a separate line. Mr Jones of counsel appeared for the respondent briefed by Ms Bauer. A representative of the respondent also attended on a separate line.
EVIDENCE
Documentary Evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents;
(b) Reply and attached documents;
(c) Application to Admit Late Documents (AALD) dated 3 February 2022 lodged by the applicant with supplementary report of Dr Gehr dated 1 February 2022 attached;
(d) AALD dated 21 February 2022 lodged by the applicant with the following attachments:
(i)statement of the applicant dated 16 February 2022 responding to CCTV footage;
(ii)statement of Jennifer Bullock dated 16 February 2022;
(iii)statement of Mark Wherritt dated 18 February 2022;
(iv)clinical notes of Our Medical Home Gregory Hills, and
(e) AALD dated 14 March 2022 lodged by the respondent with further supplementary report of Dr Muratore dated 10 March 2022 attached.
Oral Evidence
There was no application to adduce oral evidence or to cross-examine the applicant.
SUBMISSIONS
The submissions of the parties are recorded, a transcript of which can be obtained on request. I will not repeat them in full. In summary, they are as follows.
Applicant
In opening submissions, the applicant refers to the report of the CT scan of his lumbar spine dated 25 October 2021 requested by Dr Todorovic and the severe pathology noted therein under “Conclusion”.[7] The applicant submits that it is not often that pathology as severe as this is seen, and that the onerous physical activities in which he engaged as a truck driver for the respondent caused a worsening of the pre-existing pathology in his lumbar spine.
[7] ARD p 50.
The applicant notes such onerous physical activities are set out in detail in his statement dated 14 December 2021[8], and are unchallenged by any evidence from the respondent. Such activities are therefore not disputed. This evidence provides a clear and obvious mechanism of injury to his back. Such activities include awkward ingress and exit from the truck cabin and the pounding on his back on long haul trips on the freeway.
[8] ARD p 2.
The applicant refers to the clinical notes in evidence from general practitioners he consulted at the Our Medical Home Gregory Hills medical practice, which relevantly commence with a consultation note recording an attendance on Dr Todorovic on 25 October 2021 when the doctor requested a CT scan of the lumbo-sacral spine and prescribed Feldene and Panadeine Forte medication. Also of relevance is the lengthy and detailed entry made by
Dr Alberto on 2 November 2021 corroborating his activities as a truck driver and recording self-reported functional limitations[9][9] AALD 21.02.22 pp 37-39.
The applicant submits that Dr Gehr, as an orthopaedic surgeon, is properly equipped to provide an opinion on the causation of his injury, and refers to the detailed history of his treatment by Dr Giblin following his earlier back injury summarised by Dr Gehr in the report dated 29 November 2022. Dr Gehr also comments upon the report of Dr Muratore dated 9 November 2021, which is also summarised in detail in Dr Gehr’s report. The applicant submits that the “adjacent segment (pathology) disease” referred to in Dr Muratore’s report dated 6 December 2021, which he says has developed as a consequence of the previous surgery, does not provide an answer to the acceleration of the degenerative process caused by his employment with the respondent.
The applicant concedes that there is no frank injury relied upon, but a gradual process of acceleration or aggravation of the degenerative process.
On the issue of capacity for employment, the applicant submits that there is no evidence from the respondent, such as a work capacity assessment as to any work capacity that he now has. Having regard to what was held in Wollongong Nursing Home Pty Ltd v Dewar[10], there is no real job that the applicant could now secure having regard in particular to his age, education and work experience.
[10] [2014] NSWWCCPD 55 (Dewar).
The applicant submits that Dr Gehr, as an orthopaedic surgeon, is best placed to comment on the causation of the applicant’s current condition in his lumbo-sacral spine. Dr Muratore is a sports and exercise physician, not an orthopaedic or occupational physician, and does not provide any reason for his “bald assertion” that the applicant would have developed symptoms at this time of his life no matter what he was doing. The applicant further submits that Dr Muratore’s assertion that “The nature and conditions of Mr Bullock’s work in the last 10 years have not been physically demanding in that he has not been required to load and unload the truck”, [11] overlooks the continued stresses placed on his back by long distance driving and getting in and out of the truck, commented upon by Dr Gehr.
[11] Reply p 27.
The applicant submits that Dr Muratore’s opinion is further weakened by his acknowledgement, in his report dated 6 December 2021, that while symptoms in the lumbar spine do occur following surgery, the timing of these symptoms is not predictable as it is very individual. The applicant also submits that Dr Muratore also acknowledges that the activities in which he was involved in the first 10 years of his employment with the respondent, loading the truck, had the potential to aggravate the underlying pathology, and that this is what occurred, along with the aggravation from the continued long distance driving thereafter.
The applicant submits that the “AMA Guides to the Evaluation of Disease and Injury, 2nd Edition”, referred to by Dr Muratore in his report dated 6 December 2021 do not have any relevance to findings on causation of injury in proceedings in the Personal Injury Commission (the Commission).
The applicant submits that the activities revealed in the CCTV evidence of him mowing his lawn, using a whipper snipper, washing his vehicle and assisting in steadying a barbecue in the rear of a utility truck whilst it was reversing into his driveway, are all of short duration and not inconsistent with his evidence as to work capacity. They are not inconsistent with an inability to engage in employment as a long distance truck driver which he alleges caused the aggravation or acceleration of his pre-existing back condition. This corroborated by the statement evidence of the applicant’s wife and friend lodged as late documents on 21 February 2022.
The applicant submits that he is entitled to an award of weekly benefits compensation pursuant to s 36 of the 1987 Act for the first 13 weeks of his incapacity from 25 October 2021 and thereafter pursuant to s 37.
Respondent
The respondent concedes that the work done by the applicant in the early years of his employment with the respondent was heavy and onerous, but questions the “nature and conditions” of that employment when he was engaged only in truck driving. The respondent notes the criticism of the use of that term by judges of the Compensation Court and members of the Commission, and highlights the lack of detail in the applicant’s evidence as to exactly what were the physical demands on him as a truck driver. For example, there is no detail in his statement of the duration of his shifts as a driver, the frequency of his breaks, and exactly what he had to do in loading and unloading the trucks (see [8]-[10] of statement dated 14 December 2021). There is no detail of how Mr Bullock got into and out of his truck, or how often he had to do it. There is no detail as to the type of seat in his truck that would cause him to suffer the pounding of his back of which he complains on the long haul trips on the freeway. In short, the respondent questions the arduous nature of these aspects of his work as a truck driver with the respondent.
The respondent then draws attention to the history of the applicant’s work recorded by
Dr Gehr in his report dated 29 November 2021, and submits that, due to an inadequate recording of the duties in which Mr Bullock was engaged with the respondent, little weight can be placed on the opinion of Dr Gehr. The respondent submits that there is inadequate evidence as to what tasks the applicant was doing over the 19 years of his employment with the respondent that gave rise to the symptoms of which the applicant complained over the last six months of that employment. The respondent also submits that the fact that Dr Gehr records that Mr Bullock worked 60 hours a week does not assist his case.The respondent submits that Dr Gehr does not provide a “fair climate” for the opinion expressed in his report. He does not explain the specific tasks which would enable a finding that the applicant’s employment was the main contributing factor to the aggravation or acceleration of the applicant’s pre-existing spinal condition. There is nothing to show a temporal connection between the onset of symptoms and duties in the course of employment.
The respondent submits that Dr Giblin in his report dated 8 November 2021 to Allianz[12] does not record any history of arduous work, and that Dr Muratore in expressing his opinion is equipped with more information as to the nature of the applicant’s duties. The respondent also submits that Dr Muratore’s qualifications as a sports and exercise physician do not disqualify him of comment on matters of causation of the applicant’s claimed injury, drawing attention to the Expert Witness Codes of Conduct referred to in Schedule 7 of the Uniform Civil Procedure Rules acknowledged by the doctor in his report dated 9 November 2021.
[12] ARD p 59.
The respondent refers to the clinical notes produced by the Our Medical Home Gregory Hills medical centre and submits that:
(a) there is no explanation as to why the applicant consulted Dr Naval on 27 March 2020 requesting a repeat prescription of Feldene;
(b) there is no recording of complaints of back pain in the number of attendances thereafter until 3 July 2021 when the applicant is recorded as requesting Feldene for back pain[13];
(c) there is no note of heavy work recorded in the consultation note of Dr Todorovic dated 25 October 2021 when the applicant says that he first consulted that doctor as his back pain became unbearable;
(d) there is no history of back pain or heavy work appearing in the reports of the MRI scan dated 9 November 2021 or regional bone scan dated 15 November 2021 addressed to Dr Giblin[14];
(e) there is no history of work duties in the CT scan of the lumbar spine dated 25 October 2021[15], and
(f) the complaints recorded by Dr Alberto in his clinical note dated 2 November 2021 are subjective only, and the “impression” stated by the doctor is of an “Acute lumbar ligamentous strain of the lumbar spine with associated radiculopathy”, that is, an acute single event as opposed to a prolonged and arduous system of work.
[13] AALD 21.02.22 pp 29-34.
[14] ARD pp 47-48.
[15] ARD p 96.
The respondent queries the employment to which Dr Gehr was referring in his report dated 29 November 2021 as being a substantial contributing factor to Mr Bullock’s current back condition, and submits that the doctor, when the report is properly read, says that there was some aggravation to the current condition, not the main contributing factor to aggravation. The respondent submits that Dr Gehr is referring to the problem that developed in 1994 when he was treated by Dr Giblin, and that Dr Gehr notes that this has been pointed out by Dr Giblin.
The respondent submits that, while Dr Gehr says that it is inevitable that the physically demanding aspects of his occupation (as a truck driver) would aggravate his pre-existing condition, what is missing is that for eight to ten years Mr Bullock was initially employed by the respondent in duties far more arduous than those in which he was later employed.
Dr Gehr does not explain why there was an absence of recorded complaint by the applicant during the time he was engaged in the more arduous duties.
The respondent submits that Dr Gehr says that there was nothing else to explain the onset of symptoms in 2021, and that therefore the applicant’s work with the respondent must be the main contributing factor to his current symptoms. The respondent submits that this is the incorrect approach.
The respondent in submissions said that it relies on what Acting Deputy President Parker SC said at [67] [sic, [65]-[66]] in Palasty v Lend Lease Building Pty Limited[16], a case involving psychological injury. That is, because there was no alternative explanation for the emergence of the applicant’s symptoms in 2021, that does not prove that the employment was the cause of the symptoms around the time of employment. The respondent submits that the criticism made by the Acting Deputy President of the appellant’s case in Palasty is precisely the approach Dr Gehr takes in the current case.
[16] [2021] NSWPIDPD 19 (Palasty).
The applicant also submits that Dr Giblin, in his report to Allianz dated 8 November 2021, is attributing the current problem to the original work injury in the 1990s. There is no differentiation spelt out in Dr Giblin’s report as to which employment he is referring.
The respondent submits that Dr Muratore quite clearly states in his report dated 9 November 2021 that the applicant’s activities are not causally related to his employment, nor have they been aggravated by his current employment. His early activities in the respondent’s employment were not responsible for any aggravation, and his later employment activities with the respondent were not capable of causing any aggravation.
The respondent submits that the applicant’s activities as portrayed on the CCTV evidence are not consistent with the applicant having no capacity for work. The respondent questions if the lawn mower which Mr Bullock is shown as operating is in fact self-propelled as he says it is, and that the activities of using a whipper snipper and leaf blower, and assisting in the steadying of a barbecue on the rear of a reversing utility vehicle, are not indicative of total incapacity for work. The respondent does concede however that what is shown in that evidence is not indicative of an ability to work as a truck driver, but relies on the assessment of Dr Muratore on the issue of work capacity. It does concede that it has not produced any evidence as to what work Mr Bullock could do, but submits without elaborating any further, that any award in favour of the applicant should be only for the period referred to in the SIRA certificate of capacity attached to the ARD[17], that is from 25 October 2021 to 25 November 2021.
[17] ARD p 92.
The respondent made no submissions on the surveillance evidence of the applicant attending a medical appointment on 8 November 2021 and a shopping centre on 9 November 2021 which is the subject of a report dated 30 November 2021 attached to the Reply[18]. The operative’s notes are also attached to the Reply[19].
[18] Reply p 35.
[19] Reply p 31.
Applicant in response
The applicant submits that the respondent misunderstands the distinction between an injury based on s 4(2)(b)(i) and s 4(2)(b)(ii) of the 1987 Act. He submits that the mechanism of his injury, based on s 4(2)(b)(ii) is clearly spelt out in his evidence, such evidence being completely unchallenged by any evidence from the respondent.
The applicant submits that the respondent engages in speculation, without any evidence to support it, when it questions the nature of the duties performed by him as a truck driver over the later years of his employment with the respondent, and resorts to attempting to give evidence from the bar table when asking whether or not Mr Bullock is in fact using a self-propelled lawn mower when filmed mowing his lawn.
In apparently questioning his credit, the applicant noters that Dr Muratore does not raise any such issue.
The applicant submits that there is a clear temporal correlation between his employment as a truckdriver for the respondent, and the onset of his symptoms in the period leading up to October 2021, and that long distance driving and climbing in and out of a truck imposes significant strains on the lumbar spine, as Dr Gehr finds in his assessment of his duties. There is simply no evidence tendered by the respondent as to the type of truck the applicant was driving, the number of times he was required to get in and out of the vehicle or other aspects of his truck driving duties. In this circumstance, there is no reason not to accept the applicant’s evidence in this regard.
In respect of the respondent’s criticism of the “subjective” nature of the applicant’s symptoms recorded by Dr Alberto on 2 November 2021, the applicant submits that all cases start from a subjective basis in the sense of complaints made by workers of injury or pain, and that there is clear evidence of lumbar pathology to corroborate his complaints of pain and consequent functional limitations.
The applicant submits that as there is no evidence of him doing anything else which would explain the onset of his symptoms, when considered with the other evidence on which he relies, that the pre-existing condition in his lumbar spine has been aggravated and accelerated by his work with the respondent, which is the main contributing factor to such aggravation or acceleration. The applicant submits that the focus must be on such aggravation and/or acceleration, and not the genesis of any such condition. In respect of the respondent’s reliance of what was said in Palasty, the applicant submits that the whole of the evidence must be looked when considering the temporal relationship between work activities and onset of symptoms.
The applicant submits that there has been a change in the pathology in his lumbar spine as a result of the aggravation of the condition therein and points to the CT scan dated 25 October 2021 which highlights the severe nature of the pathology. That clearly demonstrates why he cannot work as a truck driver, or in any other occupation for which he is suited having regard to his age, education, skills and work experience.
FINDINGS AND REASONS
Injury
The respondent’s reliance on Palasty is referred to above at [36]. At [65]-[66] in Palasty, Acting Deputy President Parker SC said:
“65. There was no requirement to find what caused the symptoms exhibited around the time of the appellant’s employment with the respondent. That there was no evidence of an alternative explanation does not prove that the employment was the cause of the symptoms around the time of the employment.
66. The requirement of s 4(b)(ii) is that the employment in the sense referred to above be the main contributing factor to the aggravation. The happenstance that symptoms occurred ‘around’ the time of the employment with the respondent is but one factor to be considered with the whole of the evidence.”
The respondent submits that because Dr Gehr has not dealt with the issue as to why, in the context of the applicant having been engaged in onerous duties during the first eight to ten years of his employment with the respondent, there is no report of symptoms during that time, and that the doctor “quarantines” the last four to six months of Mr Bullock’s employment when he was driving trucks, and finds that such employment is the main contributing factor to the aggravation of his condition. The doctor ignores the previous 19 years of the applicant’s employment. The respondent submits that because of this deficiency in the report, there is not a “fair climate” for the acceptance of Dr Gehr’s opinion.
The respondent submits that what Dr Gehr says at [5] in his report dated 29 November 2021[20], properly read, supports the submission that Dr Gehr attributes the applicant’s current condition to the problem which developed in 1994, which was treated by Dr Giblin (It is realistic to consider his current condition as an aggravation of his previous work injury).
[20] ARD p 44.
This is confirmed, according to the respondent, by Dr Gehr’s supplementary report of 1 February 2022 where he says:
“I pointed out the key sentence in Dr Muratore’s report on page 5, where he states that the main contributing factor of his current condition in spinal fusion performed in 1995.
Both of us agree about this.”
The respondent submits that Dr Gehr’s opinion is that the occupation of a truck driver raises the possibility for work to contribute to aggravation of the applicant’s condition, but does not state that it is the main contributing factor to such aggravation, acknowledging however that a medical specialist does not have to use such terminology for his opinion to find acceptance.
In a similar vein, the respondent submits that Dr Giblin in his report dated 8 November 2021 to Allianz does not differentiate between the different types of work performed by the applicant for the respondent over the whole period of such employment, and attributes the current condition in the applicant’s back to the 1994 injury and 1995 surgery.
I agree with the respondent’s submission, in accordance with the decision in Palasty, that because there was no evidence of an alternative explanation for the current symptoms in the applicant’s back does not prove that the employment was the cause of the symptoms around the time of the employment. The Acting Deputy President goes on to state at [66] in Palasty that this is one factor to be considered with the whole of the evidence.
The applicant points out that Dr Gehr relies on the applicant’s evidence of his duties as a truck driver in support of his opinion that such duties, which according to the history taken by Dr Giblin and noted by Dr Gehr, extended over a period of 10 years after the earlier duties of pushing trollies for eight to ten years.
In his statement dated 14 December 2021 the applicant does not give a timeline as to the respective periods during his employment by the respondent when he was pushing trolleys and thereafter driving trucks. Dr Muratore in expressing his opinion accepts that for the first few years Mr Bullock would have to load and unload trucks using a pallet jack, and that thereafter he moved to “heavy vehicle haulage”, where he hauled glass panels which were on frames. The applicant’s history as recorded by Dr Muratore is that he did not need to load or unload, but did need to fit bars at the back of the trailer, and he sometimes experienced difficulty with putting these bars in position, experiencing some back pain. He also had to climb in and out of the trailer and place “…a pusher in front of the load”. Dr Muratore records that the applicant worked 50 to 60 hours a week.
The applicant submits that his evidence as to his duties as a long haul truck driver, and the pain he experienced due to the pounding he experienced while driving, when he was required to unload and reload trucks, going up and down, climbing in and out of the truck and putting metal bars across the load to keep it square with the frame, is unchallenged by the respondent, and that is the case. I accept that evidence. The applicant’s credibility was not put in issue apart from one submission made by the respondent when it called into question the applicant’s evidence as to whether or not he was in fact using a self-propelled lawn mower when he was filmed mowing his lawn. The respondent had no evidence to support such submission, it was only a submission from the bar table, and I reject it.
Dr Gehr in his report of 1 February 2022 noted his disagreement with Dr Muratore as to whether the current (emphasis added) nature and conditions of Mr Bullock’s employment contributes to his ongoing problems with the spine. He is of the view that they did, and says that Mr Bullock may have remained asymptomatic for at least five to ten years if he had not experienced the nature and conditions of work as a truck driver. Dr Gehr, as an orthopaedic surgeon, was qualified to express such an opinion. The applicant was engaged in these duties for a period of about 10 years following his earlier work loading and unloading trucks using a pallet jack. He worked 50 to 60 hours a week.
The nature of the truck driving duties described by the applicant in his evidence are corroborated by what he told Dr Alberto on 2 November 2021 and recorded in the doctor’s clinical note of that day. Relevant parts of the clinical note are:
“61 yo patient presented with a longstanding history of LBP
Patient recalls pain has been getting worse over the past 4-6/12
Mr Bullock complains of constant sharp pain throughout the day with reported duties of truck driving being the driving mechanism for his pain
……
Occupation: Truck driver – TOLL (Full time, 10 hour shifts)
PID: repetitive sitting and driving, climbing ladders to get into the truck”[21]
[21] Attachments to AALD 21 February 2022 p 38.
Dr Muratore says in his report dated 9 November 2021 that “Mr Bullock has significant widespread degenerative changes throughout his lumbar spine which are not causally related to his employment, nor have they been aggravated by his current employment”. He notes that he did not sustain a discrete injury, but developed gradual onset of back pain over a period of time, which is not unreasonable based on the pathology identified on the CT scan. He also says that, on the balance of probabilities, he would have developed symptoms at this time of his life no matter what he was doing.
In his supplementary report dated 6 December 2021[22] Dr Muratore records that the applicant was involved in loading the truck for the first 10 years of his employment with Toll, that is, from 2002 to 2012, and he did not have any symptoms at that time, although those activities had the potential to aggravate the underlying pathology. The doctor says that in the last 10 years, Mr Bullock has not been involved with loading and unloading the trucks, he just had to secure the load by placing a bar which he described was not physically demanding. On this history Dr Muratore does not agree that the nature and conditions of the applicant’s employment with Toll are contributing factors to his low back pain and right radiculopathy.
[22] Reply p 24.
Dr Gehr takes a different view of the effect that the applicant’s duties as a truck driver over the last 10 years of his employment had on his spinal condition, including lengthy periods of long distance driving, getting in and out of the truck and use of the loading bar. Dr Muratore by implication discounts these activities as contributing to the aggravation of the spinal condition, and says that as the only activity that Mr Bullock had to perform apart from driving was placing the loading bar, the nature and conditions of employment were not contributing factors to aggravation of that condition.
Dr Muratore in that supplementary report also comments on the condition which he describes as “adjacent segment (pathology) disease”, or simply “adjacent segment disease” which has developed as a consequence of the previous surgery. In making these comments, he agrees with Dr Gehr’s statement that “It was inevitable that despite the previous surgery in 1995 that further symptoms would develop particularly in the spinal levels above the level of the spinal fusion”. This was also pointed out by Dr Giblin. The applicant submits that this consequence of the previous surgery cannot wholly explain the current condition in the lumbar spine.
Dr Muratore’s reference to this condition of adjacent segment disease as being in part, at least, responsible for the current symptoms and not the nature and conditions of employment, is somewhat undermined by his statements later in the report that:
“Patients who have had a spinal fusion develop symptoms in the adjacent segment with time, the exact length of time in which symptoms occur is not predictable. The radiographic changes occur in 0-100% of cases over time, and the symptoms occur in 0-25% of cases.”
And
“While it has been shown that symptoms do occur, the timing of these symptoms is not predictable as it is very individual.”
Dr Muratore also states that sitting, involved in driving, is not a causative factor in back pain according to the AMA guides to the Evaluation of Disease and Injury Causation, 2nd Edition, (p 212). The statement quoted from these Guides by Dr Muratore is “There is, therefore, strong evidence that sitting at work is not associated with low back pain”. (emphasis in original). The applicant points out that these Guides do not have any relevance to findings on causation of injury in proceedings in the Commission, and I accept that. In any event, the observation is not helpful in determining causation of the applicant’s injury in the current proceedings. Mr Bullock did far more than just “…sitting at work…” when driving trucks for Toll.
With reference to the opinion of Dr Giblin, I do not accept that he attributes the current condition in the applicant’s back only to the prior injury and subsequent surgery he performed. In his report dated 8 November 2021 to Allianz, Dr Giblin records a history that:
“This gentleman has driven truck since I last saw him. For eight to ten years he was pushing trolleys and over the last ten years, he has been driving semi-trailers. There is no specific history of any injury.”
And:
“I believe that this gentleman's employment has been the main contributing factor to his current presentation. His original injury was to the L4/L5 level and for that he had a spinal fusion and over a period of time, he has then developed a degenerate spondylolisthesis at L3/4. That happens because of the fusion below and also due to the nature and conditions of his employment, which involved prolonged sitting for long periods of time, pushing trolleys etc. has hastened that degenerative process.”
Dr Gehr in his report dated 29 November 2021 summarises that report at length, and subsequent treatment reports of Dr Giblin. I do not accept the respondent’s submission that, on a proper reading of that report, Dr Gehr attributed the current condition in the applicant’s back to the 1994 injury and 1995 surgery.
I do not accept the opinion of Dr Muratore that Mr Bullock would have developed symptoms in his back at this time of his life no matter what he was doing, and that therefore, his employment is not the main or substantial contributing factor to his presentation. I do not accept the respondent’s submission that Dr Gehr has not established a fair climate for the acceptance of his opinion that the nature and conditions of the applicant’s employment with the respondent have aggravated the condition which arose as a result of the original accident in which the applicant was involved in 1994 and the subsequent surgery performed by
Dr Giblin in 1995. Having regard to the whole of the evidence that I have summarised above, I find that such employment was the main contributing factor to such aggravation. That is, the applicant has suffered an aggravation of a disease injury in the course of his employment with the respondent, which employment was the main contributing factor to the aggravation of the disease.
Incapacity
The applicant’s submissions on incapacity are summarised at [22] and [26]-[27] above. Having viewed the 22 separate items of CCTV evidence depicting Mr Bullock engaged in the activities referred to in [26], and having regard to the statements of Jennifer Bullock dated 16 February 2022 and Mark Wherritt dated 18 February 2022, I agree with the applicant’s submission in [26]. Dr Muratore, in his supplementary report dated 10 March 2022[23], also comments on this video evidence, noting that while he was unable to comment on whether Mr Bullock was exhibiting any overt pain behaviours such as grimacing, he certainly did not seem distressed. He did say that in the CCTV footage, the applicant demonstrated a range of movement that was inconsistent with the range of movement that he exhibited on the date of his (Dr Muratore’s) assessment. The doctor also acknowledges that pain is a subjective sensation which is reported by a patient and is associated with tissue damage or perceived tissue damage. The applicant addresses the CCTV activities in his statement dated 16 February 2022, and I see no reason not to accept that evidence, and the fact that he experiences pain on activity which he manages with pain killers. To my observation, the activities performed by Mr Bullock were done in a fairly slow and deliberate manner, and over a short period of time. I accept that he could not return to truck driving, particularly of the type in which he was engaged with the respondent.
[23] Attachment to AALD 14 March 2022 p 2.
Dr Muratore says that the applicant is fit for light work, eight hours a day, five days a week with lifting restrictions. Dr Gehr reject this in his supplementary report dated 1 February 2022, saying that it is just unreasonable for someone with the applicant’s current condition. In his earlier principal report Dr Gehr agrees with Dr Muratore that Mr Bullock has limited transferable skills and that any further occupational considerations would require a formal assessment. He says, given his age and previous work experience, that it is not realistic to consider other occupations. This comment embraces some of the requirements of the definition of suitable employment in s 32A of the 1987 Act, that is employment for which a worker is currently suited having regard to, inter alia, his age, education, skills and work experience.
The applicant makes the point that, while Dr Muratore is of the opinion that the applicant is fit for light duties with weight lifting restrictions, the respondent has not had Mr Bullock occupationally assessed. Dr Muratore says that the only way to ascertain alternative vocational options is to suggest a Vocational and Functional assessment, a suggestion that was not acted upon by the respondent. The respondent concedes that it cannot point to any other job for which the applicant is fit.
For completeness I also note that I viewed the approximately 47 minutes of video evidence of the applicant walking around a shopping centre which is referred to in the Activity Investigation Report dated 30 November 2021 attached to the Reply. I do not draw any inference adverse to the applicant from his activities depicted in that video evidence.
Dr Muratore notes that the applicant demonstrates a mild left sided limp, and notes that it can be caused by osteoarthritis of the hip and in turn can lead to an increase in back pain, and if the limp is present for a long period of time (as stated by Mr Bullock) it can lead to an aggravation of the degenerative process in the lumbar spine. Dr Muratore says that the applicant’s walking tolerance as certainly better than he reported to Dr Gehr. The applicant confirms the limp observed in the video evidence, and addresses this evidence in his statement dated 16 February 2022. In my view this video evidence is not inconsistent with the applicant’s evidence, nor does it demonstrate any particular fitness for suitable work.Having regard to the evidence I have summarised above and the lack of any alternative suitable employment to which the respondent can point, I find that the applicant is not fit to return to his former occupation as a truck driver, nor is he fit for suitable employment within the meaning of that term in s 32A of the 1987 Act.
The applicant has not received any weekly benefits since he ceased work for the respondent and will therefore be entitled to an award pursuant to s 36 of the 1987 Act for the first 13 weeks of his incapacity from 25 October 2021 and thereafter pursuant to s 37. I do not accept the respondent’s submission that he should only be entitled to an award for the period referred to in the Certificate of Capacity dated 27 October 2021, that is, from 25 October 2021 to 25 November 2021. That is inconsistent with Dr Gehr’s assessment of the applicant’s work capacity, which I accept.
The agreement between the parties as to what would be the appropriate amount of weekly compensation pursuant to ss 36 and 37 of the 1987 Act in the event of a finding on injury in favour of the applicant, and a finding of no current work capacity, is referred to above at [11].
It follows that an award in favour of the applicant pursuant to s 60 of the 1987 Act should be made in view of the award in his favour for weekly benefits.
SUMMARY
The applicant sustained injury arising out of or in the course of his employment with the respondent deemed to have occurred on 25 October 2021.
The injury sustained by the applicant was the aggravation or acceleration of a pre-existing condition in the lumbar spine
The applicant’s employment with the respondent was the main contributing factor to the aggravation or acceleration of the pre-existing condition in the lumbar spine.
Since 25 October 2021 the applicant has had no current work capacity.
The respondent is to pay the applicant $2,168.75 per week for the period from 25 October 2021 to 24 January 2022 pursuant to s 36 of the 1987 Act.
The respondent is to pay the applicant $1,826.32 per week from 25 January 2022 to date and continuing pursuant to s 37 of the 1987 Act.
The respondent is to pay the applicant’s costs and expenses pursuant to s 60 of the 1987 Act.
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