Carlos Rivas v Acoustic Industries Pty Ltd & Anor (WorkCover) - [2015] VMC 1

IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE
WORKCOVER DIVISION D13619171

BETWEEN:

CARLOS RIVAS Plaintiff

-and

ACOUSTIC INDUSTRIES PTY LTD First Defendant

-and-

WILTARI PTY LTD Second Defendant

MAGISTRATE: GINNANE

WHERE HEARD: MELBOURNE

DATE OF DECISION: 13 FEBRUARY 2015

CASE MAY BE CITED AS: CARLOS RIVAS v ACOUSTIC INDUSTRIES PTY LTD & ANOR

REASONS FOR DECISION
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Catchwords: Accident Compensation Act 1985 – rejection of claims – existence spinal disorder - two employers – two periods of employment – whether injury arose out of or in course of either or both employments- whether employment with the employers was a significant contributing factor to injury – employer reliance on ss 102 and 103 of the Act

APPEARANCES Counsel Solicitors

For the Plaintiff Ms V. Nadj Zaparas lawyers

For the First Defendant Ms M. Tsikaris Russell Kennedy

For the Second Defendant Ms S. Bailey Minter Ellison

HIS HONOUR:

The plaintiff seeks reinstatement of weekly payments and like expenses pursuant to the Accident Compensation Act 1985 (the Act) arising from decisions made by the first and second defendant’s authorised insurers to reject his claims for weekly payments of compensation and medical and like expenses for injury to his cervical spine arising out of employment with each defendant. The plaintiff submitted claims on the first and second defendants on 12 August 2013. The plaintiff’s claims embraces injury with two defendants with whom he was employed at different stages. The plaintiff’s claim for injury is predicated as one arising in the course of his employment with the first and second defendants. The plaintiff’s claim was rejected by the first defendant by written notice dated 17 September 2013 and by the second defendant by written notice dated 12 September 2013.

The plaintiff accepts that he bears a legal burden of establishing his claims that his employment with the defendants was a significant contributing factor to the recurrence, aggravation, acceleration, exacerbation and or deterioration of a pre-existing cervical injury or disease. Each defendant’s notice of rejection contended that the plaintiff did not sustain an injury arising out of or in the course of his employment and that his employment is not a significant contributing factor to his injury. The plaintiff’s entitlement is not predicated on a specific injury or disease referrable to a discrete incident in his employment but rather as injury arising out of his employment.

The legislative framework

The core provision applicable to the plaintiff’s entitlement to compensation is s 82(1) of the Act which as the legislation stood at the applicable time read:

82. Entitlement to compensation
(1) If there is caused to a worker an injury arising out of or in the course of any employment, the worker shall be entitled to compensation in accordance with this Act.
………

(2C) There is no entitlement to compensation in respect of the following injuries unless the worker's employment was a significant contributing factor to the injury—
(a)a heart attack injury or stroke injury to which subsection (2B) does not apply;
(b)a disease contracted by a worker in the course of the worker's employment (whether at, or away from, the place of employment);
(c)a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre‑existing injury or disease.

The effect of s 82(2C) (c) is that compensation is not payable in respect of a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease ‘unless the worker’s employment was ‘a significant contributing factor to the injury’.

‘Injury’ is defined by s 5 of the Act, relevantly as follows:

Injury means any … mental injury and, without limiting the generality of that definition, includes
…
(c)a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease;

Section 5(1B) of the Act provides that –

(1B)In determining for the purposes of this Act whether a worker's employment was a significant contributing factor to an injury—
(a)       the duration of the worker's current employment; and
(b)      the nature of the work performed; and
(c)       the particular tasks of the employment; and
(d)the probable development of the injury occurring if that employment had not taken place; and

(e)       the existence of any hereditary risks; and
(f)       the life-style of the worker; and
(g)      the activities of the worker outside the workplace—
must be taken into account.

Ashley JA in Popovski v Ericsson Australia P/L,[1] has noted that the requirement that employment be ‘a significant contributing factor’ to the injury is less stringent than the requirement than that a worker’s injury arise out of the employment.
[1] [1998] VSC 61 [51]–[64]

The applicable provisions of the Act are such that they require the plaintiff to discharge a burden of proof by way of the production of evidence that when assessed on the balance of probabilities leads to the conclusion he has an injury or disease that arose out of or in the course of his employment with the defendants, that is, injury or disease in the primary sense or, if by way of an aggravation, or the like as provided for in s 5(1B), that his employment was ‘a significant contributing factor’. If I am satisfied that the matter falls to be resolved on this latter basis, then the plaintiff’s employment with the defendants need not be the sole cause of injury as there may be other factors at play, and indeed, other significant factors, and, although the plaintiff’s employment need be only be a cause among other causes, if such are established, nonetheless, his employment must be a significant contributing factor as that requirement is understood in law.

Ultimately the question for me to determine is at its heart, one of causation. Counsel for the plaintiff and defendant were at one on this point. Causation is a matter of common sense: March v Stramare Pty Ltd[2].

[2](1991) 171 CLR 506

Background

The plaintiff was born 2 August 1951 in El Salvador. He is well educated and qualified as a lawyer. He is married and has a daughter aged 35 years. In 1988 he migrated to Australia as a result of the civil war that afflicted his homeland. In 1992 he returned to El Salvador. He practiced as a lawyer specialising in agriculture law. He returned to Australia in 1998. He undertook a cooking course.

Prior working history

The plaintiff worked with Marriott at Melbourne airport between 2000 and 2007 washing dishes and picking up rubbish.

Existing medical condition

Clinical notes received in evidence identify that in June 2003 and again in August 2004 the plaintiff attended the Somerton Medical Centre because of pain. On 2 August 2004 Dr Jabbar ordered a CT of the plaintiff’s cervical spine which reported ‘multilevel cervical spondylosis’. The plaintiff returned to the clinic on 30 June 2006 because of muscular neck and right shoulder pain.

Employment with the first defendant

The plaintiff commenced employment with the first defendant on 10 April 2007 as a machine operator. He described the work he did as cutting and installing felt for the motor car industry and gluing felt pieces together for use in motor vehicle production. He worked from 7.00 am to 3.15 pm. He worked on a laminator machine. The machine work required him to place large sheets of felt onto it, pass the felt through the machine, remove them and then place them on pallets. The task was undertaken by 2 people although he said that the placing of the pallets was undertaken by him without assistance. I accept this. He said it was necessary to bend down to place the felt on the bench of the machine. He said that in the course of a shift he would process sufficient pieces to fill approximately 10 to 15 pallets per day. He said it was necessary for him to pick up rolls of felt which he would carry them on his shoulder to elsewhere on the floor. He described the rolls as ‘heavy’. He did not work exclusively on machine no. 6 but he estimated that 3 days a week he was assigned to it and additional tasks he undertook included assisting employees on other machines, most of which also were laminating machines. He was also required to use a glue gun to stick pieces of felt together, a task he said he was required to be carry out ‘as fast as possible’.

Nephayto

Andrew Nephayto testified. He is a mechanical engineer and tool maker and was the plaintiff’s supervisor. His evidence contested the plaintiff’s capacity to have carried rolled felt on his shoulder because he estimated their rolled weight as something in the order of 100 kgs. It was contended by counsel for the first defendant, Ms Tsikaris that I should discount the plaintiff’s evidence as unreliable or reject his evidence as unrealistic. Neither the plaintiff nor the defendant gave reliable evidence of weights; the plaintiff said the rolls were ‘heavy’ and it was the defendant who estimated a roll to weigh in the order of 100kgs. I am satisfied the plaintiff would on occasion carry heavy rolls of felt. I make no finding beyond this about their exact or approximate weight.

In any event, and putting this matter aside, Nephayto largely corroborated the volumes of work undertaken by the plaintiff during the course of a shift and also the average number of pallets per day, which he estimated at ‘between 10 to 14’. He said each pallet comprised perhaps some 50 felts each of which was about 25mm thick. He said the glue gun used by the plaintiff was trigger operated. The plaintiff would need to trim and cut felt and glue ‘2 or 3 felts together with a glue gun’.

A short video was shown of the process of the operation of the laminating machine[3]. The film demonstrated the need for a range of movement by an operator such as the plaintiff. The first defendant contended the video was instructive because it did not reveal the extent of and range of movements suggested by the plaintiff in evidence. The video was of short duration. It was illuminating but of course not capable of being demonstrable in revealing the effects on the plaintiff of extent and repetition of the movements required of him in the job and identified in the filmed presentation.

[3](Ex T5)

The plaintiff’s collapse at work and the glue gun incident

Two incidents occurred at work. Their occurrence occupied much time during the hearing in an effort to determine the correct dates applicable to each incident or indeed if both incidents occurred on the one date. Ultimately I have decided that nothing of any moment turns on the conflict about the pertinent date or dates. It seems that the confusion about dates stems from the provision of two separate incident reports dated 18 March 2009 and 23 March 2009 respectively[4]. The latter report recorded an event that occurred on 23 March 2009 at 6.45 am at work when the plaintiff’s back gave way and he collapsed. The plaintiff said the date attributed to the incident is wrong and in fact this occurred on 18 March 2009. The plaintiff explained the incident as a result of having forgotten to take his medicine for his back condition. The ‘Details of Injury’ record that the nature of the injury was to the plaintiff’s lower back. On one account of matters, on or around 25 March 2009 the plaintiff having arrived early in the morning for work, made a cup of coffee in the kitchen and felt weak and collapsed, however, by reference to another account of matters, on 18 March 2009 the plaintiff suffered the collapse and later in the morning he had a glue gun in his hand that he dropped because of some weakness and hot glue struck him on the jaw. The plaintiff said he was assisted by colleagues and was advised to see a doctor. He attended on the Somerton Clinic and did not return to work the day of this incident. He returned to work the following day and to his existing suite of working hours.
[4](Ex P3)

Clinical notes record for 25 March 2009 record that the plaintiff had ‘some right sided body ache the last 1 month working hard and leaning forward[5]". It is also noted, "last Sat felt weak at R) arm and leg and floopy [sic] walk and fell on R side) side’.
[5] My underlining and emphasis

The plaintiff underwent an assessment at Northern Hospital where investigations suggested cervical myelopathy. He was then referred to the Austin Hospital and was subsequently reviewed in the neurosurgery outpatient clinic. There followed a number of days absences from work covered by medical certificates from the Northern Hospital for the periods 31 March 2009 to 3 April 2009 and 13 April 2009[6]. Further absences on sick leave followed.
[6](Ex T2)

A review of the plaintiff was undertaken and is dated 11 May 2009. This noted that the plaintiff had been experiencing numbness in his right arm for three months and had become weak in both of his arms and hands, as well as his right leg. Neurological examination at that time was consistent with cervical myelopathy and an MRI of the cervical spine was arranged that revealed disc prolapses as C3/4 and C4/5.

On 17 June 2009 the plaintiff underwent a surgery consisting of a C3/4 C4/5 anterior cervical discectomy and fusion at the Austin Hospital. The plaintiff’s post-operative treatment included physiotherapy for two months as well as analgesic medications and he continued to be regularly reviewed by his general practitioner. Post operatively, the plaintiff’s right lower limb weakness improved but nonetheless remained. He complained of persistent cervical neck pain with right upper limb ridicular symptoms. The plaintiff said that although his recovery from surgery was initially good his condition worsened. On 10 August 2009 the plaintiff obtained a letter of clearance from Austin Health that he was fit to undertake a ‘return to work regime’ of some 3 days a week at 5 hours per day for a period of 2 weeks followed by a review (P4). The plaintiff said that Nephayto told him that despite a return to work being fine with him, the owner of the first defendant identified as ‘Sam’ decided that the business could not accommodate the plaintiff’s restrictions and that he could not return to work until he was in receipt of a full clearance.

The first defendant contended that the plaintiff resigned his employment however the plaintiff says that he was terminated. The first defendant relied on a letter dated 23 September 2009 addressed to the plaintiff that referred to a conversion held between the plaintiff and his supervisor in which the plaintiff advised of his decision to resign his employment[7]. The plaintiff denied having seen the letter until it came to light as part of his proceedings. Whatever the true character of the cessation of the plaintiff’s employment with the first defendant, and I have some reservations about the first defendant’s account of it, in any event the plaintiff did not return to employment with the first defendant after the surgery in June 2009.
[7](Ex P5)

Condition of the plaintiff before commencing with second defendant

Prior to commencing employment with the first defendant on 10 April 2007 the plaintiff said he was not afflicted with pain symptoms and he was ‘ok’. The plaintiff agreed that he experienced some back pain in March 2003 ‘but not a lot’. When asked about the investigations in August 2004 and undergoing a CT scan of neck and low back and the medical advice that he suffered a degenerative condition, he said he could not recall. Clinical notes record that on 30 June 2006 the plaintiff experienced right shoulder pain and was diagnosed with osteoarthritis in the spine.

Between the period of October 2009 and March 2010 the plaintiff said that the extent of medication he took for neck pain was analgesics. He said he ‘improved a bit’. He said that he obtained a clearance from his treating doctor to return to work. In truth the plaintiff was not furnished with a written clearance.

The employment with the second defendant

The plaintiff commenced employment with the second defendant in March 2010. His job at the airport with the second defendant required him to collect tubs from the baggage area which he would then push on a trolley to the international departure lounge. The plaintiff’s regular hours of work with the second defendant were from Mondays to Saturdays between the hours of 7.00 am and 11.00 am but he appears to have regularly performed overtime whenever it was available and on occasions in the order of an additional 4 hours and he sometimes worked on Sundays.

The plaintiff described the work associated with the tubs. He said there were some 56 allocated spaces on each trolley for tubs to be placed. He would take a trolley from level I upstairs to level 2. The process required him to bend down, to pick the tubs up, to put them on the trolley and then to push the trolley. He said he would do this repeatedly some 15 times over an eight hour period of work. The plaintiff estimated dimensions of the tubs to be about 1.5 x 1.5 metres. There was no contradictory evidence. The plaintiff said that initially he was supplied with a manual trolley but about a year or so after commencing work he was supplied with an electric cart but it was limited to being used on the ground level of the terminal.

The plaintiff’s medical records identify that in July 2012 he attended his general practitioner and an x-ray of his of his cervical spine was taken. About two months later underwent a fusion and a diagnosis of moderate disease at the C5/C6. On 29 November 2012 a cervical MRI scan reported that ‘At the fused levels C3/4 and C4/5, the vertical canal is improved. Signal abnormality within the cord is consistent with chronic myelomalacia and cord atrophy at both levels. At C5/6 there is degenerative anterolisthesis with cord flattening and probably mild cord compression. There is signal abnormality in the cord at this level which is poorly defined. Multilevel formainal stenosis’.

In the plaintiff’s cross examination he said he began feeling pain in about December 2012 and prior to then there was nothing of note. He noticed pain down his right side. He said he took panadol ‘or whatever his general practitioner gave him’. He said he continued working. He said he made a verbal report of pain to ‘Vera’ his site manager who told him to see his general practitioner, which he did on 31 March 2013. Although it was suggested to the plaintiff in cross examination by Ms Bailey of counsel for the second defendant that he did not make such a complaint, no contradictory evidence was called and, I accept the plaintiff’s evidence. At about this same time the contract the second defendant held with the Melbourne airport came to an end and was not renewed and the plaintiff’s employment appears to have been nominally transmitted to a new operator and then concluded, as it happened, contemporaneously with the plaintiff being advised that further scheduled surgery was ready to proceed, which he underwent on 9 May 2013. Since 7 May 2013 the plaintiff has been certified as unfit for work and he has not worked since that date. When asked for his assessment of whether his second surgery was successful, he said it was not. He said he continues to have symptoms of pain down his right arm moving to the fingers. In June 2013 the plaintiff underwent multilevel cervical spine laminectomy and lateral mass fusion in order to arrest progression of his myelopathy. Post operatively he described minimal symptomatic improvement any cervical neck pain, right upper limb reticular pain and right and numbness. His right lower limb weakness improved. The plaintiff attended regular physiotherapy and regular hydrotherapy.

In mid August 2013 the plaintiff lodged a WorkCover certificate which was some five months after his employment had ceased with the second defendant.

A number of questions were put to the plaintiff in cross examination concerning the point in time when he brought up the topic of WorkCover. Ms Tsikaris asked the plaintiff why he had not returned to work with the first defendant in light of his evidence that he had not resigned but had instead commenced work with the second defendant. The plaintiff said that he had been told by his supervisor that the first defendant could not take him back unless he obtained a complete medical clearance. I accept the plaintiff’s evidence on this matter and, as to why he did not make a claim under the Act at a time commensurate with these events. The plaintiff said that he had hoped to return to work but given the condition imposed by the first defendant and his dire financial need including having accessed his superannuation, he needed employment. I can understand the plaintiff’s reasoning and I regard it as a plausible and reasonable explanation.

The plaintiff accepted the proposition put to him by Ms Bailey that he took up employment with the second defendant because he believed he could do the job. Chronologically the plaintiff commenced work with the second defendant only some 4 months after he had seen solicitors in which the question of commencing a claim under the Act against the first defendant had been broached. The plaintiff said that although he had consulted solicitors before commencing work with the second defendant, the matter was not pursued because the solicitors did not practice in the relevant field.

The plaintiff acknowledged that he applied for employment with the second defendant without disclosing his neck condition. He said at this time he was experiencing ‘slight back pain’. The plaintiff was asked about his evidence that pain of the type he had experienced in s employment with first defendant commenced to worsen in December 2012 in the course of his employment with the second defendant. He said the pain of December 2012 was of the same order as he had experienced in the course of his employment with the first defendant. He said the pain was at the top of his back and shoulder.

In the course of his cross examination by Ms Bailey, the plaintiff said that he worked 6 days per week on a 4 hour shift with the second defendant and that pressure came from the supervisor to perform his tasks quickly. He acknowledged that he was undertaking overtime practically from the outset of his employment with the second defendant. He said that the overtime increased the pain in his neck but it was suggested to him that if this was the case he would have ceased working overtime.

The plaintiff was directed to clinical attendance at the Somerton Clinic on 20 July 2011 in which there was a complaint of severe neck pain but no complaint about him being required to perform heavy work or any suggestion that restrictions or limitations were imposed by his doctor on the work he was able to carry out. The plaintiff conceded that he was aware that he could report any pain occurring at work but agreed that did not confide in anyone of the pain or having experienced injury during this period of time.

Ms Bailey for the second defendant made submissions to the effect that the plaintiff presented to her client with a significant condition and one that he had not disclosed. I agree with that observation but of itself it is not determinative of a claim failing against the second defendant.

The probable development of the injury absent the employment argument – the medicine

Michael Dooley is an orthopaedic surgeon who saw the plaintiff at the request of the defendant for the purposes of the provision of a medico legal report. He concluded that the plaintiff suffered a ‘naturally occurring degenerative disc disease of the cervical spine’ at C3 to C7 levels. He referred to Northern Hospital investigations that revealed ‘advanced degenerative disc disease with stenosis of the spinal canal and most likely some compression of the spinal cord at around the C3/4 level’. He referred to the further surgery performed on the plaintiff by way of a cervical decompression via a posterior approach that followed on additional radiological investigation that indicated possible spinal cord compression at the C5/6 level.

Dooley’s opinion is that the plaintiff would have come to surgery in any event and the plaintiff suffered a progression of the degeneration that was already underway. Dooley says that it is ‘well recorded that on radiological investigations, patients can have major central canal stenosis of the spine without symptoms. At cervical spine level, significant central canal stenosis can compress upon the spinal cord. This can result in weakness, clumsiness and the clinical signs of hyperreflexia and of hypertonicity can result from compression’. Dooley also says that he did not believe, ‘that the cervical spine degeneration and the subsequent central canal stenosis/myelopathy relate to the plaintiff’s work. The noting of weakness of the plaintiff’s right hand and the subsequent feeling of being weak all over and nearly falling are symptoms of the underlying cervical cord compression. According to Dooley, the fact is just that the symptoms ‘happened to present when the plaintiff was at work’. Dooley concluded that the plaintiff’s condition did not relate to his employment at either defendant.

Geoffrey Graham is an occupational physician who saw the plaintiff for the purposes of clinical assessment on behalf of the defendant’s insurer on 11 September 2009 and provided a written report of that same date. Graham is also of the opinion that the plaintiff was undergoing ‘degenerative change resulting in neural compromise’.

Tevfik Kahraman is a medical practitioner who saw the plaintiff in 2009 when he was undertaking his practice of medicine at the Somerton Road Medical Centre. He furnished a report to the plaintiff’s solicitors but beyond the dates of attendances on him by the plaintiff but he was at pains to say that he had no recall about the plaintiff and he could provide no opinion one way or the other whether the plaintiff’s work contributed to his condition or an exacerbation because, as he put it, ‘I do not even recall where he worked or what his work duties entailed’. His report was unhelpful and other than for the provision of dates and narrations, served no purpose.

Peter Andrianakis is a treating physician and saw the plaintiff at the request of the plaintiff’s solicitors on 19 March 2013 for review and management of work related injuries. He wrote a report dated 7 August 2014. He said that by reason of the history given, the plaintiff ‘has suffered a work related neck injury. This caused him significant pain and stiffness in his neck with associated headaches and right upper limb weakness’.

Thomas Kossmann is an orthopaedic surgeon. I found his report dated 4 April 2014 very helpful. In it, he set out a narrative of the plaintiff’s employment with the defendants that he gleaned from the the plaintiff in the course of his medical assessment. He reported that the plaintiff ‘denied a history or injury to, or symptoms in his cervical spine’. Despite this account from the plaintiff, Kossmann when detailing the plaintiff’s history, referred to ‘the attached clinical file from Somerton Road Medical centre, that ‘on 3 August 2004, Mr Rivas underwent a cervical spine CT scan, which required ‘multilevel cervical spondylosis”’. Under a lifestyle evaluation, Kossmann reported that, ‘because of his symptoms, Mr Rivas has been unable to partake in his hobbies including playing soccer and basketball, which he used to play every weekend’. Kossmann also had to hand the plaintiff’s clinical file from Austin Health. Kossmann diagnosed, ‘Multilevel degenerative disc disease (C2/3, C3/4, C4/5 and C6/7), causing spinal cord compression and cervical myelopathy’. In that section of his report dealing with analysis and discussion, Kossmann reported, among other matters, that ‘According to the attached clinical file from Somerton Road Medical centre, on 3 August 2004, Mr Rivas underwent a cervical spine CT scan, which reported “multilevel cervical spondylosis”, but it seems that Mr Rivas had no symptoms until 2009…”’. This analysis does not accord entirely with either the complete clinical history as it omits the medical attendance in June 2006, and neither does it exhaustively reflect the evidence of the plaintiff. However, even making allowance for these omissions, I am on the whole satisfied that they are not of such probative value as to displace the regard I have otherwise afforded the opinion expressed by Kossmann that, the plaintiff’s condition is consistent with the stated cause. Kossmann provides a direct temporal and causal relationship between repetitive heavy manual nature of his employment at the first defendant and the second defendant. Kossmann said that the repetitive heavy nature of the plaintiff’s work at the second defendant contributed to the progression of his cervical spine condition.

Richard Bittar is a neurosurgeon and spinal surgeon. He reviewed the plaintiff on 21 November 2013 at the request of the plaintiff’s solicitors and prepared a report of that same date. He diagnosed an ‘aggravation of cervical spondylosis, and C3/4 and C4/5 intervertebral disc prolapses’ and ‘clinical evidence of right C5 radiculopathy as well as cervical myelopathy’.

The defendants submitted that the issue of causation is a paramount consideration in determining the outcome of liability for compensation by way of weekly payments to the plaintiff. Ms Tsikaris argued that the plaintiff did not suffer an injury with the first defendant but that if he did then his employment was not a significant contributing factor. Ms Bailey also focussed on the question of causation and submitted that the plaintiff came to employment with the second defendant with a significant neck injury and a degenerative condition. She referred to the CT scan from 2004 and the conclusion of multi level cervical spondylosis and the records from 6 September 2004 in which the plaintiff complained of heavy lifting at work.

It was submitted by Ms Bailey that although the plaintiff said that that following on from the first surgery he had not returned to work and was not able to unless and until he received a full clearance as being fit for normal duties this appears not to be the case. The supposed termination as opposed to a resignation is called into question and it was argued that I should be satisfied that the plaintiff could have gone back to work with the first defendant. This submission was directed to the ultimate conclusion that was urged on me to accept which was that the plaintiff came to employment with the second defendant capable of performing his job of work and not with an injury. I cannot accept the submission in light of the facts I have found taken together with the views I have formed about the plaintiff which is, overall, favourable and the plaintiff’s medical evidence.

Ms Bailey referred and relied upon the decision of Lauritsen M (as he then was) in Gaskin v Untold Abundance & Anor[8] and his Honour’s exposition and application of the dicta of Samuels JA about an in the decision of the New South Wales Court of Appeal in Paric v John Holland Constructions Pty Ltd[9] particularly at 509 and 510 of the consequences that follow from the absence of a factual premise upon which expert opinions are based or, where the basis of assumptions are not disclosed thus creating an ‘unfair climate’. Although Ms Bailey asked me to view the plaintiff’s medical opinions as having come to fruition in an ‘unfair climate’, save for the opinion of Dr Kahraman, I am not persuaded by this submission.
[8] (7 November 2011)
[9] [1984] 2 NSWLR 505

Ms Nadj in argument, submitted that when Mr Graham came to form his opinion about the plaintiff he had available to him the incident reports, the letter of termination of employment from the first defendant and the numerous certificates of capacity, together with the worker’s and employer's claim forms. However Graham did not have radiological or clinical notes concerning the plaintiff. Ms Nadj pointed out however, that although there is report of pain in 2004, there is nothing else relevantly noted again until June 2006 and thereafter the events that arise occur in the course of the carriage of and the discharge of the plaintiff’s employment with the first defendant.

The application of legal principle – ‘arising out of’

The requirement that the plaintiff establish that his ‘injury’ ‘arise out’ of his employment will be satisfied if his employment is shown to have been a cause of the injury. It is not necessary that the plaintiff establish that the employment was either the sole or the dominant cause of his condition. Because of the nature of the ‘extended’ definition of injury relied on by the plaintiff, he must be able to establish that his employment was a significant contributing factor to it.

Significant contributing factor

The words ‘contributing factor' recognises that an injury may be caused by more than one factor. The inclusion of ‘significant' means that where there is more than one factor involved and one of them is the worker's employment then its importance needs to be assessed in order to determine if it is a significant contributing factor or not. There may be also more than one factor which is significant and of course one factor may be more significant than another but this does not diminish the question whether employment is a significant contributing factor to the causation of injury. It may be of lesser significance than another but nonetheless satisfy the description of 'significant'. There are many statements that have been made in decided cases, the sum total of which are, I venture to suggest, consistent with the comments I have expressed.

In Meddis v. Victorian WorkCover Authority (County Court, judgment 24 April 1996) Judge Rendit, said this:

‘I consider a broad meaning can only be given to the words 'significant contributing factor' as the facts of each case must be looked at in the light of its own circumstances and an assessment made factually whether the employment was a significant contributing factor to the happening of the injury. In this regard, I consider it means more than de minimis but less than a major or a dominant factor. Indeed, one can have several significant contributing factors which are unrelated but which play their part in the occurrence of the injury. I consider that it is basically a question of fact’.

Counsel for the first defendant referred me to Allman v. Major Finance and Engineering Pty Ltd[10] in which Judge Strong described ‘significant’ as meaning ‘of considerable amount of effect’.
[10](County Court, judgment 14 March 1997)

Ashley JA has spoken about the area of overlap between the statements of Judge Rendit and Judge Strong and he has said that there is an apparent point of disagreement in that the minimum requirement of the Meddis formulation is that the contribution of employment to injury be ‘more than de minimis’, whereas the ‘single requirement of the Allman formulation is that such contribution be ‘of considerable amount or effect’’. Ashley J considered that the Allman formulation more accurately reflects what he called, the ‘sense of the legislation’. As his Honour pointed out, the adjective which parliament chose to insert was ‘significant’ not ‘material’, nor the phrase ‘to a recognisable degree’ all of which he pointed out, owe their development to different legislative arrangements. Further his Honour said it is an adjective which implies a contribution of greater dimension than that conjured up by such of these other formulations. His Honour stated that that it is important to keep at the forefront of consideration that what will amount to ‘considerable’ in any particular case will, of course, be a matter for determination on the facts and that at a practical, as distinct from conceptual level, the distinction between an employment contribution exceeding de minimis and an employment contribution of considerable amount or effect may be more apparent than real.

The section 5 (1B) factors

In deciding whether injury within sub‑paragraph (b) or (c) of the Act has been caused to a worker, the nature of employment is a matter that must be considered: (s.5 (1B) (b) and (c) of the Act). I have already detailed the nature of the employment undertaken by the plaintiff with the defendants. In considering whether employment is a significant contributing factor to injury, paragraphs (e), (f) and (g) of s.5 (1B) direct attention to aspects of the worker or his lifestyle which, where relevant, have contributed to a particular injury. In giving effect to this part of the Act it would be wrong of me to approach the matter on a construction that the paragraphs in question are only relevant where circumstances fitting them were present; in which case those facts would be put in the balance against the worker. The law directs me to be aware that the absence of facts falling within any of those sub-paragraphs may tell in favour of there having been significant employment contribution to injury in a particular case. Thus in applying this reasoning to the facts, the only evidence that addressed the matters was that the plaintiff had once played soccer and basketball and that he had taken ‘head shots’. Otherwise the evidence on such matters goes to the duration of the plaintiff’s current employment with the first defendant as having been lengthier than with the second defendant but neither period was minimal and, in any event, the comparative durations of employment may be lesser or more important when an assessment is made of the particular tasks associated with the employment, they being matters that I am satisfied in each instance amounted to heavy and repetitive work. I have of course kept in mind the question of probable development of the injury occurring if the employment had not taken place. However the case here is one in which the plaintiff came to employment with a degenerative condition and, therefore, it seems to me , that the more pertinent question is the extent to which, if at all, the existing degenerative condition of the plaintiff progressed by the employment with each defendant. For me to come to a conclusion about this sufficient to make good the plaintiff’s claim, I must be persuaded by the medicine that any progression was at least to a recognisable degree. Does the evidence provide a sufficient basis to enable me conclude that the plaintiff’s degenerative condition progressed to a recognisable extent? If it does, has the employment with each defendant amounted to a significant contributing factor?

I am satisfied that there is a sufficient connection disclosed in the medical evidence to conclude on the balance of probabilities that the work performed in the discharge of the plaintiff’s employment with the defendants meets the description of a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre‑existing injury or disease. I am satisfied on the balance of probabilities that the plaintiff came to his employment with the first defendant with a naturally occurring degenerative disc disease of the cervical spine that presented as advanced degenerative disc disease with stenosis of the spinal canal and probable compression of the spinal cord at around C3/4 level. I also find that it is more probable than not that some symptoms such as hyperreflexia and hypertonicity are explicable as consistent with compression of the spinal cord at the cervical spine level having become symptomatic. However the descriptions given by the plaintiff of pain are of a different type when considered in the presentation of intervertebral disc prolapses as diagnosed by professor Bittar. The plaintiff’s medical records dated 25 March 2009 also record right sided body ache for the month preceding the plaintiff’s attendance. I am unable to exclude as a probability that the pain the plaintiff encountered in his employment was not part of his naturally progressing condition.

I find that the work undertaken by the plaintiff with the first defendant was repetitive and constant throughout the hours he worked. I am also satisfied on the balance of probabilities that the plaintiff did carry rolls of heavy felt on his shoulders and that he did this unaided. I am satisfied he suffered pain as a consequence. I did not find Mr Nephayto an impressive witness, even making allowance as Ms Tsikaris submitted I might, of the passage of time since the events in issue occurred. By contrast in giving consideration to the manner of the plaintiff in giving his evidence and his answers and responses under cross-examination, I am satisfied that he was honest in his account and he impressed me as a stoic man who went about his employment as best he could. I am satisfied on the balance of probabilities that the plaintiff was required to work, and did work, in a way that required him to repeatedly keep his neck in a flexed position as noted by professor Bittar in his report. I am satisfied that the plaintiff’s circumstances giving rise to his surgery included, as a factor, his employment with the first defendant. I am satisfied by the report of Professor Bittar that the plaintiff’s employment can be regarded as more than de minimis in accounting for his condition and in fact, a significant factor. Whilst I am satisfied that the plaintiff’s existing degeneration was also a significant factor but his employment was of no lesser significance.

I am satisfied that the plaintiff’s injury was aggravated by his employment with the second defendant. In forming his opinion of the effect of the plaintiff’s work with the second defendant, Bittar reported that the ‘work required him to load heavy tubs on to a trolley and then push the trolley to the departure gate where the tubs would be unloaded. During the course of this workplace activity, he experienced progressively worsening pain in his neck and right arm, as well as clumsiness in his hands and unsteadiness of gait’.

The account of the plaintiff in his evidence identified the pushing of the trolley as a signal fact he noted as bringing on the manifestation of pain. The second defendant contended that the plaintiff’s evidence of the estimated dimensions of the tubs was incorrect and in truth they were otherwise, but other than this being asserted, it led no contradictory evidence.

A pertinent consideration among the many that were advanced by the second defendant, and one already referred to by me, relates to the apparent incongruity in the experience of pain and the plaintiff’s overtime either being associated with the pain he felt, in which case an objective assessment of the matter might suggest a curtailment of overtime by the plaintiff, which did not occur. All the evidence must be considered including, in a resolution of any factual conflicts, the assessment formed of parties by the court. I have already made a favourable finding about the plaintiff and I do not find it surprising that he would have worked overtime in the face of pain.

Section 102 & 103 of the Act

The second defendant’s notice of defence pleaded that the plaintiff’s claim was precluded by operation of ss 102 and 103 of the Act. I am not satisfied that the second defendant suffered any prejudice by the failure of the plaintiff to comply with s 102 of the Act. Certainly no prejudice was advanced on behalf of the second defendant.

The proper application of s 103 of the Act is also problematic in terms that the second defendant would use it as a bar to the plaintiff claim. Section 103 (5) invoked by the second defendant in its notice of defence, requires in the case of a claim for compensation in respect of an injury arising out of or in the course of employment, that if the claim is made after the worker ceases to be employed then it will be deemed not to be made unless the worker can show that he or she could not reasonably have made the claim while employed by that employer. Here there was some laxity in determining when the employment ceased as there was a loss of the relevant contract by the second defendant with the Melbourne airport and then a period of time the plaintiff remained in employment with the successor. If the correct question to ask is whether the plaintiff could ‘reasonably have made the claim’ while employed by the second defendant, then this in turn invites a consideration of the identification of the claim? In this instance the claim by the plaintiff was at least for weekly payments and so it is conceptually awkward to conclude that the plaintiff could have made such a claim until after his employment ceased. That being so, there is no other disentitling time period contained in the sections advanced by the second defendant in its notice of defence.

It is also unclear if cessation of employment in the context of the Act is directed to and confined to the employment ending in consequence of an injury arising out of or in the course of employment or otherwise more generally. Furthermore there are also questions of the impingement of the plaintiff’s surgery that was coincidentally commensurate in time with the ending of the employment with the second defendant because of the loss of the contract it held with the airport.

None of these matters were addressed in any meaningful manner by the defendants, and in particular, not by the second defendant whose defence specifically invoked the prima facie disentitling effects of the combination of ss 102 and 103 of the Act. This is unfortunate because both historically, and indeed in the Act as it applies to the plaintiff’s claims, the issues are not self evident in the manner intimated by the second defendant. It requires a careful analysis of, as I have already mentioned, the nature of the claim made and the extent to which a claim for compensation by way of weekly payments, as opposed to a claim for compensation otherwise available, is in fact constrained by time as opposed to it merely crystallising time by the making of a claim in the prescribed manner, which non compliance in any event, a plaintiff may be relieved of.

I accept that the plaintiff was not ignorant of the provision of compensation in some form at least because he had apparently had some legal advice from a firm of solicitors before commencing employment with the second defendant but that was not pursued because, it was said, they did not practice in the relevant jurisdiction. As I have already pointed out the plaintiff knew he could complain about any deleterious effects his employment was having on him and the evidence is that he did not do so until the near end of his employment with the second defendant when he complained to Vera. Then too, the plaintiff was on the cusp of undergoing a further surgery. The requirements informing ‘reasonable practicality’ were not meaningfully explored. Having regard to all of the circumstances, and if it was necessary otherwise for me to conclude, then I would be satisfied that the plaintiff had a ‘special excuse’.

I therefore find the existence of injuries within the meaning of the Act in work related circumstances in the employment of the plaintiff by both defendants and I am satisfied of the existence of actual work contributions by both employers.

The plaintiff is entitled to continuing medical and like expenses for injury at both defendants. In like manner the plaintiff is entitled to claim weekly payments of compensation from both defendants in accordance with the Act.

I now address the extent or degree and length of the plaintiff’s work incapacity. The plaintiff has been since 7 May 2013 certified as unfit for work and he has not worked since that date. On any view of the matter, the plaintiff is not capable of returning to his pre-injury employment and I am satisfied that he has no current work capacity at present. In reaching this conclusion, I have had regard to the tentative view expressed by Kossmann that he ‘may be fit for work of a sedentary nature’ but his prospects are impeded by the plaintiff’s ‘poor English’ and that the progression of his symptoms since surgery in June 2013, ‘seems to have halted’. Bittar thought that a degree of stability had settled on the plaintiff but that he ‘will almost likely continue to suffer from significant disability and symptoms in to the foreseeable future’. Andrianakos in August 2014 opined that, the plaintiff ‘remains unfit for work with very poor prognosis of ever returning to meaningful work duties’. Dooley reported in August 2014 that the plaintiff ‘would have capacity to carry out some light physical work and clerical type duties’. In September 2013 Graham expressed the most optimistic prognosis and assessment of capacity, namely that the plaintiff ‘could perform modified or alternative duties’. I prefer the opinions of Kossmann and Andrianakos. The plaintiff is limited in day to day activities and the matter of the limitations in English, his age, and his period absent the workforce, all militate against any proper consideration without more of an assessment of the plaintiff being able to perform suitable employment. I am satisfied that he still labours from ‘no current work capacity’.

I will hear the parties on the proper form of orders and other relief as may be required.
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Citations

Carlos Rivas v Acoustic Industries Pty Ltd and Anor (WorkCover) [2015] VMC 1

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