Clare v Victorian WorkCover Authority; Clare v Transport Accident Commission
[2020] VCC 1996
•18 December 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-17-02940
| ROBERT CLARE | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
-and-
Case No. CI-19-03146
| ROBERT CLARE | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
---
JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5, 6, 7, 9 October 2020 (via Zoom hearing) | |
DATE OF JUDGMENT: | 18 December 2020 | |
CASE MAY BE CITED AS: | Clare v Victorian WorkCover Authority; Clare v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1996 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – lumbar impairment – pain and suffering – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Humphries & Anor v Poljak [1992] 2 VR 129; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
Judgment: Application dismissed.
Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury application – lumbar impairment – aggravation
Legislation Cited: Transport Accident Act 1986, s93(17)
Cases Cited: Richards & Anor v Wylie (2000) 1 VR 79; v Balliotis [1998] 3 VR 833; Petkovski v Galletti [1994] 1 VR 436; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Peak Engineering & Anor v McKenzie [2014] VSCA 67
Judgment: Application dismissed.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M Hartley QC with Mr C S O’Sullivan | Maurice Blackburn |
| For the VWA (First Defendant) | Ms F A L Ryan | Thomson Geer Lawyers |
| For the TAC (Second Defendant) | Mr W R Middleton QC with Mr P V Bourke | Solicitor to the Transport Accident Commission |
HER HONOUR:
Preliminary
1 By Originating Motion CI-17-02940 dated 28 June 2017 (“the ACA application”), the plaintiff sought leave to bring proceedings for pain and suffering and loss of earning capacity damages pursuant to the Accident Compensation Act 1985 (“the ACA”) for injury suffered by him in the course of his employment with Brimbank Council (“the Council”) on 15 March 2012 (“the first date”).
2 By Originating Motion CI-19-03146 dated 8 July 2019 (“the TAA application”), the plaintiff sought leave to bring proceedings to recover damages pursuant to the Transport Accident Act 1986 (“the TAA”) for injury suffered by him arising out of a transport accident on 31 July 2012 (“the second date”).
3 The relevant body function in both applications is the lumbar spine.
4 In the ACA application, the plaintiff brings the application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB of the ACA. There, “serious injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
5 For the purposes of the ACA application, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
6 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
7 Under the ACA, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which are “when judged by comparison with other cases in the range of possible impairments ... fairly described [at the date of the hearing] as being more than significant or marked, and as being at least very considerable”.[1]
[1]ACA, s134AB(38)(c)
8 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, the ACA imposes specific burdens in relation to a claim for loss of earning capacity.
9 Where there is a claim for loss of earning capacity, loss of capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter. The formula by which loss of earning capacity is to be measured is set out in the ACA.[2]
[2]ACA, s134AB(38)(e) and (f)
10 Questions of rehabilitation and retraining must be considered in determining whether the 40 per cent loss has been established.[3]
[3]ACA, s134AB(38)(g)
11 Section 93(6) of the TAA provides that the Court must not give leave under ss(4)(d) unless it is satisfied that the injury is a serious injury.
12 The definition of “serious injury” relied upon by the plaintiff is under s93(17) of the TAA. There, “serious injury” is defined relevantly as meaning:
“(a) a serious long-term impairment or loss of a body function.”
13 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in the particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.[4]
[4]Humphries & Anor v Poljak [1992] 2 VR 129
14 Under the TAA, the enquiry under subparagraph (a) of the definition focuses attention first upon whether the injury has produced an organic impairment or loss of body function, and then, by reference to the consequences of that impairment, to determine whether it is serious and long-term.
15 The serious injury defined by subparagraph (a) can have its seriousness measured in part by mental response to a physical impairment. What it will not recognise is that the mental disorder can of itself constitute or be the producer of the impairment of a body function.[5]
[5]Richards & Anor v Wylie (2000) 1 VR 79
16 An application pursuant to ss(c), for psychiatric impairment was withdrawn during final submissions.
17 The plaintiff swore three affidavits and was cross-examined. His first affidavit, sworn 30 January 2017, related to the ACA application only, the other Originating Motion not then having been issued. There was, however, reference to the transport accident in that affidavit.
18 The plaintiff’s second affidavit, sworn 1 March 2018, was in support of his TAA application and also adopted the contents of his first affidavit. In his most recent affidavit, sworn 27 August 2020, he made reference to both incidents.
19 In addition, the parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
20 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd v Podolak[6] and AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz[7] in reaching my conclusions.
[6](2005) 14 VR 622
[7](2012) 34 VR 309
21 Counsel for the plaintiff submitted both applications should succeed – “it was not an either/or situation”.[8]
[8]Transcript (“T”) 7
22 In terms of causation, ultimately reliance was placed on the views of Mr Awad and Dr Baynes in relation to the ACA application and Mr Speck and Mr Awad in relation to the TAA proceedings.[9]
[9]T8-9, T306ff
23 The “seriousness” of any lumbar impairment was in issue in relation to the ACA application. Further, counsel for the first defendant submitted the plaintiff has a capacity for work in alternative employment, having worked for three years in suitable employment after the March 2012 incident.[10]
[10]T14
24 Counsel for the second defendant submitted the transport accident was of little consequence. The plaintiff had problems with his back pre and post the first date. Further, there were a multitude of insults to his spine after the transport accident. In addition, he has a number of comorbidities.[11]
[11]T15
Background – affidavits
25 The plaintiff was educated to Year 10 and subsequently completed a horticulture apprenticeship. Over the years, he has also worked as a gym instructor and owned his own gym. He has worked in security and also as a gardener.
26 The plaintiff commenced employment with the Council in November 2006 as a full-time gardener. It was often physically demanding work and he carried out a range of duties, including brush cutting, chainsaw work and lawn mowing.
27 Apart from work, the plaintiff enjoyed filling in his time as a boxing trainer and football coach. He played AFL extensively in his youth in the Essendon district and had a long association with the Essendon Doutta Stars Football Club.
28 The plaintiff suffered an injury at work on the first date. Having driven a ride-on mower up a ramp onto a trailer, he slipped as he walked down the ramp on the slippery surface. His feet went out from under him and he fell on his buttocks and back (“the ramp incident”). It happened quickly, but he could recall lying pretty much flat on his back on the ramp.
29 He felt pain immediately in his back. Over the next few hours, it started to settle but did not go away. He saw his general practitioner, Dr Lunz, who referred him for physiotherapy. He also saw a chiropractor, Dr Lawrence, whom he had seen some years earlier for back pain.
30 Initially, the plaintiff only had a few days off work and then came back on normal duties, although he did so with some pain. He found that some heavier tasks, bending and twisting and tight movements, were particularly painful. He had better and worse days and weeks but, in general, the more active he was, the more likely the pain. He was keen to keep his job and therefore worked through pain and/or developed ways to work around it.
31 In his Claim Form signed 23 March 2012, the plaintiff described:
“Slid on wet trailer gate-ramp after loading ride-on mower onto trailer – twisting back.”
32 The plaintiff did not mention any previous injury. He listed Kinetic Health in Laverton North as his treater. He also noted he returned on modified duties but experienced back spasms and severe pain and had not been back to work since 20 March 2012 (three days earlier).
33 There was a further incident at work a few months later, on the second date. The plaintiff was on a ride-on mower at the top of a slope near Kororoit Creek Road in Sunshine. The mower lost traction and began to slip down the slope towards the creek. Despite applying the brake, the mower simply gained momentum. He estimated he slid about 30 metres down the hill before eventually hitting a fallen tree that was obscured behind some tall grass (“the ride-on mower incident”).
34 The impact was pretty much head on into the tree. The rear wheels of the mower left the ground to the extent that they were at his head level for a moment, and then it dropped heavily to the ground. The impact of hitting the hidden tree was violent and he thought that the whole of the mower was going to fall forward and flip over the top of him. He was badly shaken. His back, in particular, was very painful and the pain was similar to that which he had felt in the ramp incident.
35 He remained at work but struggled greatly from then on and pushed himself to keep working out of necessity. He could not afford to be off work. He used his time away from work to rest his back so that he could keep going. Things got worse. He started taking more days off as the pain would often build to a level where he felt he simply was not going to be able to cope.
36 The plaintiff was referred to neurosurgeon, Mr Brazenor, whom he first saw in November 2012. He advised the plaintiff against surgery and gave him some rules as to what he could and could not do. He was advised not to use the brush cutter and also to limit weights he could lift. He was advised to wear a brace, which he did.
37 The plaintiff had a number of periods off work, sometimes, for as long as two months at a time. In early 2013, he started a return to work program on lighter duties for four hours a day.
38 By the middle of that year, he was more or less back fulltime but still undertaking light duties. He could not lift heavy weights, with 15 kilograms being the absolute maximum. He could take breaks whenever necessary and avoid repetitive strenuous work for more than about 15 minutes at a time. However, he would still average about four days off work each month due to back pain.
39 The plaintiff’s employment with the Council was eventually terminated in September 2016 because his drivers licence had been suspended due to the number of demerit points he had accrued. He was unaware of this situation until picked up by the police. He told the Council what had happened, and his employment was almost immediately terminated. He was advised that if he could not drive and could not otherwise fulfil his work duties due to his back injury, then there could no longer be a job held open for him.
40 He brought an unfair dismissal application which was ultimately settled. The allegation that he had acted dishonestly about his drivers licence was withdrawn.
41 He had since struggled financially. He had tried some security/ bouncer work with a friend who ran the Essendon Wine Bar. However, even with the work being very close to home and allowances made for him to sit on a stool and take breaks when necessary, his back was simply not up to the job.[12] He struggled with increasing back pain and would come home in a lot of pain. He gave the work away and went on Centrelink.
[12]T37
42 As of January 2017,[13] despite being off work, things had not improved. He had constant low back pain, the severity of which varied. It tended to be more towards the left side of his back but also to the right. It flared up to a sharp or severe level a number of times daily, no matter how careful he was. The pain also went from his back into his left buttock area, left thigh and down the side of his calf muscle. It felt like a combination of numbness and pain.
[13]First affidavit sworn
43 Bending and twisting were particularly bad in terms of pain and he had to be very conscious of his back constantly and tried to be careful about how he moved it. That situation had worn him down greatly. Even something as simple as bending over to put on his shoes and socks would often bring on quite significant pain, as would coughing at times. Pain inevitably built up during the day. That had been the cycle for some time and something he had resigned himself to having to deal with.
44 He had had an active sporting life which he had continued for many years despite no longer playing competitive football. He coached or taught boxing to a number of people and derived great satisfaction from that activity. He had not done any hands-on boxing coaching since about mid 2015. It was something that was very hard to let go of but, in the end, he had to admit to himself that he could not do it.
45 He still then went to the gym and did some light football training to try and keep up some level of fitness. While exercising might be painful, it also ultimately helped with his core strength, and that had helped with his back stability.
46 He had split up with his partner of ten years in 2013. He realised that he had become hard to live with since his injury, and had no doubt that this was the cause of the break up. He was frustrated with pain and limitations, and that impacted on his state of mind and ability to cope with day-to-day stressors. That was, and remained, a source of great sadness.
47 He had started seeing Dr Mitropoulos, as he had lost confidence in his previous general practitioner, having not had any improvement with his pain for so long. He no longer saw the chiropractor regularly as he could not afford to do so since losing his job. He did find that treatment could reduce pain levels for a few days at a time. Not being able to afford ongoing treatment had therefore been a real blow.
48 He was then taking Voltaren or Voltaren Extra when the pain was particularly bad or when he simply felt he could not put up with it any longer. Sometimes, when he sensed that the pain was going to flare up, he would try to take this medication before it did. He might not take it for a week or two, but then could take it for a couple of weeks in a row.
49 He did not get much relief at night and his sleep was not good. Pain made it hard to get to sleep and also woke him once he had managed to get to sleep. He often got up during the night and walked around to try and keep the pain under some control.
50 He worried a lot about the future. His “back injury” had changed his life dramatically and it was then causing him financial loss and considerable hardship. His taxation returns were exhibited to this affidavit.
51 The plaintiff swore a second affidavit on 1 March 2018 in relation to the TAA application which had recently been issued. He claimed to have had serious injury to his back and/or spine, together with referred sensory disturbance to his lower limbs, and also claimed to suffer from a consequential psychological injury.
52 He noted his earlier affidavit in relation to the ramp incident. He confirmed the matters set out therein remained true and correct and relied on the contents of that affidavit in support of his TAA serious injury application.
53 The plaintiff swore a further affidavit in August 2020 in which, inter alia, he described problems with his knees and shoulders.
54 Prior to injuring his back at work in 2012, he had had some problems with both his knees, having undergone two arthroscopies to his right knee, the most recent in February 2010, and one to his left knee. He continued to have some pain and restriction as a result of his knees, but was able to return to normal work duties at work shortly after the February 2010 arthroscopy and also do boxing, training and run around and kick the football.
55 After his employment was terminated, he continued to have some pain in both knees and noticed that his gait was changing as a result. In 2018, he was put on a waiting list at the Royal Melbourne Hospital (“RMH”) for knee replacement surgery. He had a right knee replacement on 13 June 2019, and a left knee replacement on 31 October that year. He had been really pleased with the result of these operations and no longer had knee pain. His gait had improved a lot. He could now walk up and down stairs in his two-storey townhouse without getting any knee pain.
56 He dislocated his right shoulder playing football while aged in his twenties. From then on, he had had some ongoing pain and problems with the shoulder, particularly when bowling at cricket. His work with the Council aggravated his shoulder from time to time.
57 After termination of his employment, he had hydrodilatations of his right shoulder in March and May 2017, which he found helpful. This shoulder continues to niggle and cause him discomfort at times, but it is nowhere near as painful and incapacitating as his back injury.
58 On about 20 February 2015, he suffered a painful spasm in his back while pitchforking some mulch at work (“the mulching incident”). He needed to take a few days off thereafter and lodged a WorkCover claim that was accepted. He then went back to work. His back pain returned to much the same level as it had been since 2012 and prior to the mulching incident.
59 He was still undertaking modified duties when his employment was terminated. He was not allowed to lift anything heavy and was only allowed to do brush cutting and mulching for short periods. His immediate foreman knew about his back injury and was pretty understanding.
60 Not long thereafter, he undertook a traffic control course, completing the theoretical component, but he could not cope with the practical part, which required long periods of standing, which caused him increased back pain. The job also required lifting and carrying various signs and equipment, and he realised he was not going to be able to do it because of his back pain.
61 In 2017, he became quite depressed. His back pain was getting him down. He was also sad about losing his job and worrying about how he was going to cope financially. He saw a psychologist a few times but did not find it helpful. Talking about his problems seemed to make them worse.
62 In October 2017, the plaintiff saw pain specialist, Dr Eddy, at the RMH, but could not afford to see her again.
63 In 2018, the plaintiff’s mental health deteriorated to the point where he had some suicidal thoughts. He used to own a rifle and at one time made plans to shoot himself but decided against doing so when he thought about his children.
64 On 25 October 2018, he completed a WorkCover Claim Form for the back injury sustained in the ride-on mower incident. The claim was accepted.
65 In July 2019, he saw pain specialist, Dr Courtney, at the RMH as a public patient. He suggested that the plaintiff go on a waiting list for some blocks and radiofrequency denervation. The plaintiff does not intend to have these procedures as people have told him that the benefits were very short lived.
66 The plaintiff had a lumbar MRI scan in December 2019.
67 In about the middle of 2020, WorkCover reduced funding for chiropractic treatment from once a week to once a fortnight. Since then, the plaintiff’s back has felt stiffer and he has more pain. While that treatment never got rid of his back pain, it made his back feel a bit less stiff and he was able to move a bit more freely for a few days after each treatment.
68 He continues to have constant lower back pain, the severity of which continues to vary. He still gets flare ups several times each day and often without warning. He avoids bending, lifting and twisting as much as possible as these movements make his back pain worse.
69 He takes Voltaren and Osteomol every day for his back pain. Since March 2018, he has taken Targin for his back pain, but his general practitioner has warned him that it is addictive, so he tries to use it sparingly and uses about one packet each month. He sees his chiropractor once fortnightly. He takes Eldepryl for depression. He was previously prescribed Pristiq but when he took it he actually felt more depressed.
70 He still sleeps very poorly, and it takes him a long time to get to sleep each night, but he cannot get comfortable because of his back pain. He then usually wakes up every two hours. His sleep is also affected by negative thoughts, as he dwells on how his back injury has changed his life and it makes it harder to get to sleep.
71 He is doing very little physical exercise now because of back pain. He bought an exercise bike that he used at home for a while, but any position he adopted on the bike caused him pain so he stopped trying. He walks a little bit for exercise. Generally, his back feels okay while walking but, once he gets home and cools down, it is very stiff and sore.
72 Being unable to do decent exercise gets him very down, given he has been a fitness fanatic since childhood. Keeping fit and playing sport has always been a very important part of his life. He has lost a lot of muscle and body tone in recent years from not being able to do decent exercise.
73 Prior to COVID-19, he used to go to the local boxing gym, where he caught up with people he knew, and he watched training and sparring. It got him out of the house. Sometimes, he would give some tips and advice to those training, but he could not get physically involved because of his back pain. This was a constant reminder that he was no longer able to do decent physical exercise and he used to love boxing.
74 He is struggling a lot with his mental health and he often becomes tearful, which was never a problem in the past. He has lost the desire to socialise and he will often avoid taking phone calls, even from best friends who know about his back injury and depression. He just does not want to talk about things and does not want to pretend to be happy.
75 He continues on Centrelink and he is not required to look for jobs. If not for his back injury, he would like to work. Financially, he is not in a position to be retired. He does not own a house, and his marital separation cost him a lot financially. Due to his back pain and resultant restriction, he cannot think of any jobs he could do, having only ever done manual work.
The Plaintiff’s earnings
| Financial Year Ending | Amount |
| 30 June 2010 | $56,735 |
| 30 June 2011 | $58,446 |
| 30 June 2012 | $60,082 |
| 30 June 2013 | $62,449 |
| 30 June 2014 | $66,267 |
| 30 June 2015 | $70,283 |
Cross-examination – First Defendant
76 In 2007, the plaintiff saw a friend from the gym, chiropractor, Don Stevenson, for alignments. He did not recall going to him for a specific injury. He denied having significant back pain prior to the ramp incident. He later saw another chiropractor, Dr Lawrence. He remembered once having quite significant back pain before March 2012. It is not the case that he had no history of back pain prior to the ramp incident.[14] Whatever his chiropractor’s records set out is correct.[15]
[14]T21
[15]T25
77 He could not recall telling Mr Haig, on examination in August 2017, that he had had low back pain for some years prior to the incidents. Any problems before “were nothing as serious as this”. He attended the chiropractor a couple of times in the years before, but could not recall telling a doctor about any back problems.[16]
[16]T26
78 The plaintiff had a lot of time off and on modified duties after the ramp incident.[17] He was capable of getting through a day’s work, and there were days when he could not, so he would take the day off. He agreed after the ride-on mower incident, when the mower hit a fallen tree, he had very significant time off.[18]
[17]T22
[18]T23
79 He could not remember seeing Mr Battlay in 2013 and telling him he only had a short period of time off work after the ramp incident.[19] He took ten sick leave days between March and July 2012.[20]
[19]T34
[20]T36
80 He was able to cope with work after both incidents, but as time wore on he got worse and worse, and took more time off.[21] He agreed his back pain got a lot worse after the ride-on mower incident, but could not say whether this was because of that incident or the ramp incident. As time went on, he felt his back was a lot worse after the ride-on mower incident.[22]
[21]T23
[22]T24
81 While Dr Tan had a history of severe pain after the ride-on mower incident, the plaintiff told him that he got severe pain after both incidents, and then it got progressively worse.[23] It got worse as time went on, “right up until today”.[24]
[23]T24
[24]T25
82 As Mr Haig reported, the plaintiff’s back pain had continued at a higher level after the mower incident, but as time has gone on, his back has got worse and worse. He agreed in his mind, his back had got significantly worse after the mower incident.[25]
[25]T28
83 While on full-time light duties from about mid 2013, the main restraints were on the length of time brush cutting and chain sawing, and there were lifting limits of 10-15 kilograms. He was only allowed to mulch for 15 minutes. At times, he could manage at work, with chiropractic treatment.
84 He agreed he hurt his back in the mulching incident. He put in a claim. His back pain got progressively worse after that.[26]
[26]T30
85 He confirmed his low back pain has always been in the same area, predominantly on the left side, but sometimes travelling across to the right.[27] He did not agree, as Dr Eddy seemed to suggest, that the pain became constant and daily since the mulching incident. He agreed that as time went on it got worse, but not a lot worse since that incident.[28]
[27]T30
[28]T31
86 He disagreed he was able to cope with full-time modified duties until he lost his job. He used all his leave, so he “actually” was not coping. He was getting by, but he had a very understanding work partner and he was taking a lot of time off work.[29]
[29]T32
87 In the last two years at work, he was trying to get to the chiropractor when he could afford it. He was taking prescription-strength Voltaren. He agreed he thought he was contributing to his job with the Council on the good days.[30]
[30]T37
88 He last attempted being a personal trainer “one on one” in 2018. He tried to continue as long as he could, but as time went on, his back got worse, so the work just petered out. He had previously been a fairly prominent boxing trainer. Back in the day, he would have had a dozen clients a week. He owned the Moonee Ponds gym from 1986 to 1998 and worked in a couple of other gyms. He had a business partner, but no employees. He promoted his gym by word of mouth. His partner did more of the customer service. The plaintiff’s role involved supervising clients doing their weights and making sure they and the equipment were safe.[31]
[31]T39
89 Before his work as a personal trainer petered out, the time he spent at the gym varied. On a good day, he would go to the gym for a couple of hours a day and train three or four people. He was paid $30 for a half-hour session, from which he gave the gym owner $5. These earnings are “not presently” in his taxation returns. On a good week, he would have taken ten sessions. It was specifically boxing training. He did not spar. He stood there and did pad work.[32]
[32]T46
90 He did not know what the suggested role of membership consultant meant. A number of certificates/qualifications were needed to work in gyms, and his were well and truly out of date. The suggested job does not exist.[33] He is not computer savvy. He is not good on sales. He and his partner went broke when they owned their own gym. Gym owners he knows do not have employees.[34] If it was a job where he could sit and stand as required, he could do it full-time.[35]
[33]T40
[34]T42
[35]T43
91 In re-examination, the plaintiff confirmed he had had no marketing or sales or advertising experience. The gym was already established when he took it over. His computer skills are ordinary. He would have problems sitting at a desk. He would need further certificates/qualifications, and no one employs someone in that job anyway. He would have a problem with data entry. He has not had any experience in a call centre[36] and no sales experience.[37]
[36]T178
[37]T179
92 He would rather see a psychiatrist than a psychologist if he could afford to do so.[38] He is still waiting on treatment for a right shoulder bursa. Sometimes, his shoulder gets worse at night. It does not wake him. The painkillers he uses for his back seem to keep his right shoulder pain under control.[39]
[38]T43
[39]T44
Cross-examination – Second Defendant
93 The plaintiff was asked about his attendances at Sonic Health Plus in Laverton North. There, he saw general practitioner, Dr Henderson, from October 2006, who then noted his knee problems. He then saw Dr Wilkinson. There were occasions when he had a sore back, but they were very, very few and far between.[40]
[40]T54
94 He could not remember Mr Bare, who was referred to in the Sonic Health notes. His knees never gave him back pain.[41] He could not remember having an MRI scan of his back in 2008.[42]
[41]T55
[42]T58
95 The plaintiff “presumed” he told Mr Brazenor that he had had low back pain over the previous two years when seen in late 2012.[43]
[43]T116
96 He confirmed his problems trying to walk, as Mr Brazenor reported.[44] He agreed at times he would have walked like an invalid, and he had problems wearing the brace Mr Brazenor suggested. He would not have gone to see him had he not had the incidents, although Mr Brazenor made no reference to them in his reports. He agreed that he told Mr Brazenor what was reported, and that he chose not to see him again.[45]
[44]T117
[45]T120
97 Even now there are times he can feel his back going into spasm when walking, like when he saw Mr Brazenor.[46] His reasonable walking distance at the moment is about 20 minutes.[47] “Good and bad days” were the reason why he presented differently to Mr Brazenor. He did not like Mr Brazenor lecturing him.[48]
[46]T143 – re-examination
[47]T144
[48]T146-147
98 He could not remember telling Mr Battlay in March 2013 that he had no problems with his back other than odd aches in his back with sport. However, he confirmed that the tenor of that statement is accurate.[49]
[49]T50
99 When seen on 26 March 2012 by Mr Du at Sunshine, the plaintiff agreed he then reported “last episode two years ago, worse than this episode, saw chiro” but it just got worse and worse after that.[50]
[50]T61
100 After the ramp incident, at all times he struggled with brush cutting, and it has never been any different.[51] Mulching duties changed after the mower incident and he then drove the truck.[52]
[51]T62
[52]T104
101 In that early period, during mid to late March 2012, some days he attempted to go to work, and other days he went and could not complete the day.[53] He did not obtain certificates other than from Dr Lunz.[54] He was still providing modified duties certificates in relation to the ramp incident at the time of the ride-on mower incident and thereafter.[55]
[53]T153 – re-examination
[54]T156
[55]T69
102 The plaintiff agreed his back must have been pretty bad if he went to his chiropractor eight times in July 2012 before the mower incident.[56]
[56]T71
103 He saw Dr Lawrence on 1 August, the day after the ride-on mower incident, who then noted “flipped tractor and hurt low back on left hand side”. He could not say whether that was a prearranged appointment.[57] He would get regular reminders but did not go to the chiropractor if he was not in pain.[58] He could get in at the last minute if he was in “tremendous pain”.[59]
[57]T72
[58]T71
[59]T72
104 Dr Lee was the first doctor he told about the ride-on mower incident. This attendance was on 15 January 2013.[60]
[60]T67
105 After the ride-on mower incident, the plaintiff’s condition did improve at times. The pain was up and down. There were good and bad days. He was keen to keep his job and worked through with the pain. He agreed at times in the period leading up to the ride-on mower incident he was in quite a bit of difficulty.[61] He agreed he was in a great deal of difficulty with his back pain in the week prior to the ride-on mower incident.[62]
[61]T52
[62]T70
106 After that incident, he did deteriorate a lot quicker, and he had a lot more bad days. The pain was quite significant after the ramp incident, but he really felt that had that been the only accident, he did not know if he would have got to this stage.[63]
[63]T172 – re-examination
107 He could recall a quite lengthy return-to-work program after the mower incident. Initially, he was working two hours, then four hours. It was a gradual return to work, ultimately to full-time hours.[64]
[64]T77
108 He could not recall the circumstances noted by his doctor on 27 September 2012 “brush cutting and large log over a fence- bent over and chainsaw and got worse.” He could not remember that appointment, let alone why he did not refer to the ride-on mower incident.[65] He denied he did not mention it because it was not significant - “Of course it was a significant incident. It destroyed my life.” He then added “Both accidents have”, when asked about the ramp incident.[66]
[65]T64
[66]T65
109 He was not sure about the 19 July 2013 note that mentioned a “fall and fight.”[67] A note on 4 February 2015 about “bowling” was him playing backyard cricket with his sister’s son.[68]
[67]T73
[68]T76
110 The plaintiff agreed that he had had a series of events over the years where his back had been affected by his physical activity, especially the two incidents, but nothing major before them. He did not consider having an MRI scan. In 2008, he was advised to have one.[69]
[69]T77
111 He agreed he signed a claim form on 6 March 2015 in relation to an injury suffered when he twisted his lower back whilst pitching mulch on 20 February 2015.[70]
[70]T80
112 In re‑examination, he confirmed he was hands-on mulching in March 2015, because they were running late. That was why he was shovelling, not driving. Probably, the effects of that incident lasted for a few weeks – “the damage was already done”. It certainly hurt at the time, but he was “already well and truly damaged”. He was progressively getting worse, and it was getting fairly obvious a lot of the things he was required to do at work he could not do, and so it was looking doubtful that in that particular role he would have been able to continue.[71]
[71]T135
113 After the mulching incident, from that day onwards he was having more severe pain and more bad days. He felt it was from that day onwards, but it could have been just the fact that as time went on he got worse. He really could not answer accurately regarding the progress of his back after the mulching incident. He was getting progressively worse anyway, and obviously that did aggravate it. It was very, very painful, and he went into spasm, but he could not remember specifically whether or not that made him worse going down the track. All he knew was as time went on, he started to worsen and worsen. That incident may have made it worse, but he could not say honestly.[72]
[72]T170 – re-examination
114 He agreed that he twisted suddenly while doing brush cutting at work as his doctor recorded on 8 May 2015.[73]
[73]T78
115 He lodged an incident report in relation to the ramp incident but did not lodge a TAC claim until 25 October 2018. He did not do so earlier as he thought a claim was lodged. There was a lot of confusion because there were two separate incidents. He had no idea. He thought he had just put in an incident report, and “it was probably (my) ignorance… (I) do not know what authority it came under.”[74]
[74]T79
116 In the ride-on mower incident/TAC Claim Form, he described - “Ride-on mower lost traction and slid down slope.” He mentioned another incident at work on 15 March 2012.
117 He was assistant coach of his son’s football team, Oak Park under-18s, until the end of 2011. In 2012, his son went to another team and missed a large part of the season. His son came back to Oak Park in 2013 and the Club asked the plaintiff to help with pre-season fitness, which he was able to do that year. He thought he might have also done this role the following year, but it then became too much. He did nothing from 2015. He was not asked to do anything after his son left, but he would not have been able to help out anyway. Because of his knee surgery, he missed watching his son play recently.[75]
[75]T86
118 He last did the boxing training in early 2018. When asked what he did in 2011 that he was saying he could not do now in 2012/13, he said “nearly anything”. He used to do weights to try to keep in shape – “They have gone now too.” He had attempted to go to the gym, having gone regularly before the incidents, doing two weight sessions a week at a boxing gym. At times he had attempted to return to weights in that gym in 2013 and afterwards, but “nowhere near as vigorously as he did before”. He attempted to go to the gym but was not able to train properly. He could not get very far with it.[76]
[76]T88
119 Previously, in addition to weight training, he went to the boxing gym nearly every day where he did 40 to 45-minute weight sessions. After 2012, he could not do weights for as long.[77] He is not going to the gym at all now. Further back in time, he was attempting to go at times, but did a lot less, and it was lighter. He has not been to a weights gym for well over a year. When he was still going, if he was having a bad week, he would not even attempt it. If he felt he could go, he would “fill himself up” with Voltaren and attempt to do some weights, but it was not very successful. He blamed his back for loss of most of his body and muscle tone “a hundred per cent”.[78]
[77]T89
[78]T90
120 He agreed, as Dr Sabetghadam reported in June 2016, that he was then training using a sledgehammer on a tyre at the gym. He was then attempting that activity, which he agreed was strenuous, but not with much success. An average person would hit the tyre twenty times, doing three repetitions. On a good day, in 2016, he could probably hit it twenty times, but not with the repetitions. On a bad day, he would not even attempt it.[79]
[79]T99
121 As time went on, his back just got worse and worse. 2016 was the time he was actually dismissed from work, so he was “dwindling down by that stage good and proper” doing gym. He was less able to do things and struggling to do things he used to do. He was still taking Voltaren and Panadol.[80] He denied that he was doing the repetitions and squats as Dr Sabetghadam reported.[81] His treating practitioners told him it was better to stay fit.[82]
[80]T99
[81]T101 and T102
[82]T103
122 His shoulder feels better when he trains.[83] He denied he had stopped gym because of his shoulder and knees. Last year he had stopped training “of course” because of his knees. They are now “absolutely perfect”, and his back has got worse.[84]
[83]T90
[84]T91
123 He was able to work through his shoulder problems. He could do most things with his shoulder now, especially when he is on painkillers. He does not have pain in his shoulder “sitting here today”. If contact is made to it unexpectedly, that is when he has trouble, and “that is about it”. The painkillers seem very effective on his shoulder.[85]
[85]T107
124 He has a little bit of discomfort with his right shoulder. The purpose of the suggested surgery is to give him a bit more shoulder movement. His shoulder did not give him any problems when at work.[86]
[86]T169
125 He is currently taking prescription Voltaren, Panadol Extra and Osteomol and Targin. He does not take anything for his knee. He took painkillers directly after both knee operations, but does not have any pain in his knees whatsoever, so he does not require painkillers for them, he does not actually take them specifically for the shoulder, he takes them for his back.[87] His knee “is not a big deal”.[88]
[87]T108
[88]T166 – re-examination
126 Pre knee surgery, his knees were not causing pain. They were “collapsing inside” because there was no cartilage left.[89]
[89]T137 – re-examination
127 The plaintiff was prescribed Targin by his present general practitioner for his back.[90]
[90]T109
128 His back pain has always been in the same area. When it radiates down his leg it is usually his left, but it is also slightly in the right. Pain radiating into his left leg returned after the ride-on mower incident, and he gets it from time to time, “still up until today”.[91]
[91]T182
129 Going to the chiropractor now is better than being in agony every single day of his life.[92] He last saw his chiropractor, “last week”.[93]
[92]T92
[93]T78
130 The plaintiff started anti-depressants after his job was terminated.[94] He agreed probably he did not know, and could not say, when asked whether losing his job was the trigger for his mental health problems. Losing his job upset him greatly.[95]
[94]T123
[95]See general practitioner’s referral letter – T125
131 After he was sacked and the dust settled, he realised it was going to be very, very hard for him to get back to work, or work again, as his back got worse, and that was when he started to think very negatively. He lost contact with his elder son.[96] His job meant a lot to him, with commendations and a lot of job satisfaction.[97]
[96]T148
[97]T150
132 He did not have any rapport with the psychologist he saw, and it was better to talk to his general practitioner. He has never wanted treatment. He is now thinking about psychiatric treatment.[98]
[98]T126
133 The plaintiff confirmed his issues with self isolation and being embarrassed about losing his job in 2017[99] and being unable to help his children financially.[100]
[99]T138
[100]T139
134 When asked if not for the sacking, would he have remained in his job indefinitely, he said “I wanted to, but no, I doubt it very much”. There was a reason to think that, because he was taking time off “willy-nilly”, and was probably taking more time off than he was working.[101] When shown his wage records, he explained that he had not lost any money because he was using his leave entitlements.[102]
[101]T106
[102]T115
135 His back was just getting progressively worse, but he was lucky to have an understanding foreman and modified duties. If he was the gardener, he had a labourer under him. However, it was a real battle, and it got worse and worse, and he took more time off. He used all his leave entitlements. It was not good. He often felt guilty about the time he was taking off, and it was becoming the “same old record over and over again”.[103] He would take all his leave, but in no particular order, whether sick, annual, or whatever.[104] Long service leave he took was only for his back, not for a holiday.[105]
[103]T158
[104]T159
[105]T162
136 After he hurt his back, there were suggestions made of other job roles. He was also actually asked to make a suggestion but all of those were rejected. However, his direct boss was very understanding, and he continued as long as he could, but he would have “eked it out” as long as he could.[106]
[106]T136
137 As time has gone on, “it’s not a matter of a good day anymore, it’s a very bad day or it’s a bad day”, and it is only controlled by taking medication.[107]
[107]T145
Medical evidence – treaters
Back condition pre March 2012
Dr Lawrence – chiropractor
138 The plaintiff first attended on 3 November 2009. He saw Dr Lawrence four times that month for his back.
139 Reminders were sent but non-attendances were noted in August and December 2010 and June 2011. The plaintiff next attended on 24 August 2011. Reminders were also sent in September and December 2011 and on 28 March 2012.
140 The plaintiff next attended on 12 April 2012, after the ramp incident.
12 April to 30 July 2012
141 The plaintiff was seen four times in April and nine times in July 2012, with five attendances in the last week of July.
After 30 July 2012
142 After the ride-on mower incident, the plaintiff attended six times in August, four in September, ten in October, eight in November and twice in December. Attendances continued as follows:
· 2013: 5 January, 9 February, 10 March, 2 April, 3 May, 4 June, 5 July, 2 August, 2 September, 2 October, 2, November.
· 2014: 3 March, 2 April, 2 May, 1 July, 1 December.
· 2015: 5 February, 6 March, 3 April, 6 May, 3 September, 2 November and 1 December.
· 2016: 7 January, 2 February, 1 March, 4 April, 2 May, 4 June, 2 August.
· 2017: 7 March 2017.
Computer notes commenced –
· 2017: 5 April, 2 June, 1 July, 1 August, 1 October, 2 December.
· 2018: 1 January, 1 February, 1 May, June, 1 August, 1 October, 3 December.
· 2019: 1 February, 5 March, 2 April, 7 May, 1 June, 5 July, 6 August, 7 September, 7 October, 3 November, 5 December.
· 2020: 6 January, 5 February, 4 March, 4 April, 5 May, 4 June, 3 July, 2 August.
143 Dr Lawrence certified the plaintiff had no capacity for work on 7-10, 11-13 and 14-17 January, 9-15 February, 27-29 April and 1-2 June 2016. He certified him for suitable employment from 2 June.
Sonic Health Plus Clinic, Laverton North
144 Before March 2012, the plaintiff mainly saw Dr Wilkinson at this clinic.
145 There was a single visit in December 2006. Attendances were then ongoing from January 2008, when the plaintiff attended for a left knee injury owing to surgery on 17 March 2008.
146 On 29 February 2008, it was noted:
“Left knee meniscal injury with associated low back pain and review by Mr Bare. Back pain not improved.”
147 On 4 March 2008, Dr Wilkinson recommended that the plaintiff see a physiotherapist and advised against chiropractic treatment. It was noted “Contact Mr Bare and he will organise MRI of the back”. That request appears to have been refused later that month.
148 On 7 March 2008, it was noted:
“Back pain not too bad this morning. The pain radiates down the right leg with walking.”
149 On 12 March 2008, back pain was up and down. It had improved on 28 March and on 7 April 2008, it was noted “back pain is good”.
150 Left knee complaints continued and then right knee complaints started in mid-2009. Certification for modified duties for both knees was provided at various times.
Post 15 March 2012
151 On 19 March 2012, Dr Lunz recorded:
“New assessment new injury. Last Thursday after putting a ride on mower back on truck was walking down ramp and slipped on wet tracks. Fell and twisted as caught railing and immediate discomfort. Able to finish shift and reported incident. Thursday into Friday severe pain. Self-care to nil available. No referred pain. Previous back injuries and also recent neck strain with headaches. Chiropractor and nil prefer physio. Not keen on delayed meds as had previous bad experience with ? Celebrex and Nurofen ? What meds – Nil sure.”
152 The diagnosis was:
“? Disc derangement and rector muscle spasm and/or JNT dysfunction. Physio was suggested but requested chiropractor and would request own medication.”
153 When the plaintiff attended on 28 May 2012, the radiology was then discussed and physiotherapy suggested. A letter was written for WorkCover. On 25 June 2012, a certificate was provided.
154 On 11 July 2012, Dr Lunz certified the plaintiff fit for modified duties – no lifting and pulling and pushing. No driving. Sit and stand as required - until 9 August 2012.
155 On 13 July 2012, it was noted that the plaintiff was still having pain:
“? Not adhering to work restrictions. Told to take some time off. No medication.”
156 A neurosurgeon review was advised, as was physiotherapy versus chiropractic treatment, and also analgesia. A letter was written for WorkCover and a letter sent to Mr Brazenor.
157 The plaintiff saw Dr Lee on 3 July 2012 in relation to heart issues.
Post 31 July 2012
158 The plaintiff next attended Dr Lunz on 27 September 2012, when it was noted then that he was still the same:
“Brush cutting and large log over a fence – bent over and chains AW and got worse.”
159 A further certificate was written.
160 This appears to be to be the last attendance at that clinic. There are then limited notes from Dr Lee, at East Keilor.
161 The plaintiff saw Dr Lee on 15 January 2013, when the following history was taken:
“4 months ago on a ride on mower on a slope and slide down 30m onto Kororoit Creek in Sunshine. Works for Sunshine. Mower stopped by log on side of creek. Seen WorkCover doctor in North Laverton Kinetic Health. On and off light duties. See chiropractor. Sees Professor Brazenor in Epworth and had MRI the ? L3-4 disc crushed and bulging. Pain down right leg and buttock. Has heel spur. Can’t sleep. On Brufen and Panadol. Diarrhoea … Can’t cope with day’s work. GP refuses for him to see chiropractor. The chiropractor in Mt Alexander Road, Mr Andrew Lawrence … Pain down the right leg. Panadeine Forte prescribed.”
Mr Brazenor – neurosurgeon
162 There were a number of reports and letters from Mr Brazenor.[108] He first saw the plaintiff on 28 November 2012 on referral from Dr Lunz. Prior thereto, the plaintiff had seen his assistant, Dr Dagley.
[108]Tendered by second defendant
163 Mr Brazenor noted the plaintiff was a council worker who was doing quite a lot of brush cutting, lawn mowing and chain sawing, and over the past two years these activities had started to be attended by low back pain, and, more recently, bilateral leg pain, worse on the right than left.
164 The plaintiff also had a history of back-punishing sports, having played more than 400 games of football, been a fast bowler between the age of thirteen and into his twenties, and worked as a bouncer, during which time he incurred several fractures. He was still a boxer and fulfilled the role of a boxing trainer “doing most of the things that the boys do”.
165 On initial examination, the plaintiff had quite a stiff low back.
166 Mr Brazenor noted that the CT scan had been poorly reported. There was a left paramedian disc protrusion at L5‑S1 as alleged, but the protrusion at L4‑5 was right sided, and involved the whole right posterior quadrant of the L4‑5 disc.
167 The MRI confirmed right foraminal protrusions of the L4-5 and, to a lesser extent, L3-4 discs, and the L5‑S1 annulus showed a mild asymmetry. The L1‑2, 2-3 and 3-4 discs were all reduced in height and had lost some T2‑weighted signal, and the L4‑5 disc was dark on the T2‑weighted images.
168 Mr Brazenor’s initial view was that the plaintiff had incurred cumulative changes of wear and tear to his lower three lumbar discs, worst in the L4‑5 disc, and that his occupation had been a significant contributor to those chronic cumulative injuries.
169 Mr Brazenor advised the plaintiff that as result of those injuries, his days of bending and twisting at the waist were over. He mentioned to him that his sporting history had probably an equal significance in this, but that did not diminish the contribution from his current work.
170 Mr Brazenor sent the plaintiff off to get a back brace to be worn at all times at work, and directed him as to a walking-and-lying-down program.
171 On review on 19 December 2012, the plaintiff had not implemented all of the advice given, and hence had not noticed any improvement in his condition.
172 Mr Brazenor repeated his instructions to the plaintiff. On review on 15 February 2013, the plaintiff did not appear to be taking all of his advice, as he was not wearing the brace. He really walked like an invalid that day, but on examination, there were no new abnormal findings.
173 Mr Brazenor noted that the plaintiff was becoming more abdominally obese. A CT scan and isotope bone scan, which were carried out on 27 February 2013, showed only the changes previously seen, with no hint of progression. Indeed, the right foraminal protrusion at L4‑5 looked to be smaller, implying strongly that healing was occurring.
174 When next seen on 13 March 2013, the plaintiff looked much happier. He had very little leg pain, just mild migratory back pain. He was then talking to the WorkCover provider about jobs for which he might retrain, and they had sent him to an independent assessor who had agreed with Mr Brazenor that he could not go back to bending, lifting and twisting.
175 Mr Brazenor gave the plaintiff the three “Rules for Living” and told him that he expected he would be able to work full time to normal retiring age of sixty-five years, provided he did not go back to a job with bending, heavy lifting or twisting.
176 Mr Brazenor certified on 28 November 2012 and 13 March 2013 that the plaintiff must wear a brace at all times and not use a brush cutter. These restrictions were permanent.
Dr Maree Withers – psychologist
177 Dr Withers saw the plaintiff four times from September to November 2017 on referral from Dr Mitropoulos.
178 She noted, from the referral documentation and the plaintiff’s own account, he had neither a personal history of mental health issues nor family history of mental health issues until he lost his job with the Council in September 2016.
179 Since that time, he had reported experiencing chronic pain in his back and shoulder requiring surgery which he could not afford, and he was experiencing significant financial hardship. He was having very poor sleep due to his pain, and that was significantly impacting on his mental health, including experiencing depression and anxiety.
180 As he reported to Dr Mitropoulos, on occasions the plaintiff felt very low and thought about taking his own life but would not do it on account of his family. During their sessions, he denied thoughts of self-harm or suicidal ideation.
181 Dr Withers provided the plaintiff with supported psychotherapy and provision of strategies to assist with his depression.
182 Based on the plaintiff’s insomnia, lowered energy and motivation, anxiety, depressed angry and irritable moods, observable teariness in sessions, and feelings of anger and frustration at how he had been treated by his employer, she believed it reasonable to make a diagnosis of depression with anxiety symptoms. She noted he was limited in what he could receive psychologically due to financial hardship. Ten sessions were available under Medicare, and she had seen him at a significantly reduced fee.
183 In conclusion, she thought duration and frequency of psychotherapy was difficult to predict. Given the debilitating nature of the plaintiff’s medical condition and its impact of on his mental wellbeing, she believed he should be provided with fortnightly therapy sessions during 2018 and beyond if necessary.
Dr Tan – Sunshine City Medical Centre
184 The plaintiff attended Dr Cesar Tan on 30 April 2014.
185 Range of movement was then limited in all directions. Various treatments such as physiotherapy, chiropractic and acupuncture injection were discussed. The plaintiff was then on light duties and having chiropractic treatment when needed. It was noted the employer was unable to give him light duties anymore. On 7 May 2014, the plaintiff had been in severe pain the last three days, was not sleeping well and had seen the chiropractor the day before.
186 Dr Tan reported to the plaintiff’s solicitors in December 2014. He noted the plaintiff had been suffering from chronic lower back pain for the past eighteen months, which started when he was putting the mower back into the trailer, and he fell over and hurt his back. The second injury occurred when he hit a tree and hurt his back again.
187 At that stage, the plaintiff was working as a gardener. His main duties consisted of brush cutting, lawn mowing and chain sawing, repetitive movements of his lower back, and heavy lifting.
188 Dr Tan noted the CT and MRI scans, and advised the plaintiff needed to continue with chiropractic treatment. Given the nature of his job and the nature of his accidents, Dr Tan believed the injuries were consistent with the stated cause. The prognosis remained poor, and the plaintiff would never be fit to work his pre-injury duties.
Dr Mitropoulos – general practitioner – one of many who does not disentangle
189 The general practitioner reported to the plaintiff’s solicitors in March 2017, noting the plaintiff first saw him in December the previous year, when he told him he lost his job because of ongoing back pain. Whilst at the Council, the plaintiff felt he was managing his work role in and around his back flare-ups, and he felt he was still contributing.
190 In that report there is no mention of either the incident in March or July 2012 or any comment as to the contribution of either to the plaintiff’s present condition.
191 Dr Mitropoulos then thought the plaintiff was unable to maintain any type of physical work or even a security-type job where he was standing for a prolonged period of time.
192 Dr Mitropoulos reported recently on 12 May 2020.
193 He then noted plaintiff continues to have chronic lumbar spine pain requiring strong analgesia. Pain management specialists were planning some radiofrequency denervation, which was not curative, but which he hoped would alleviate some of the pain from the facet joint.
194 Dr Mitropoulos was unsure if this procedure would ever help the plaintiff return to manual work, and suspected not. At best it may reduce his reliance on painkillers and allow him to be more functional each day.
195 Dr Mitropoulos thought the plaintiff’s spine pain was complex and long-term. In the meanwhile, he had been managing his other joint problems in the public hospital system. The plaintiff had had two total knee replacements in the last year and they had worked well. He had chronic right-sided shoulder pain that would also require surgery. He was in the public hospital system waiting for surgery, from which Dr Mitropoulos expected a good result.
196 Dr Mitropoulos noted despite the good outlook with his knees and shoulders, the plaintiff battles with his mental health related to the chronic back pain. He is a motivated and once very fit man who is now a shadow of his former self. His back pain was permanent, and anything that could be offered would merely reduce the pain somewhat but not fix it.
197 Dr Mitropoulos had organised a recent MRI scan in relation to which he noted the degenerative changes were widespread and the pain now is both discogenic and facet related, and that was why he was hopeful that RFD with pain management specialists would go some way to helping the plaintiff in a safe and relatively non-intrusive way.
198 Following the MRI scan of lumbar spine in December 2019, it was reported:
“Clinical details: spinal canal stenosis.
Conclusion: dextroscoliosis of the lumbar spine with advanced degenerative change most pronounced in L4/L5 level with moderate canal, lateral recess and high-grade right foraminal stenosis. However, there is also moderate impingement of the left L3 nerve root in L2/L3 left lateral recess level. Scattered modic type 1 and 2 endplate change. High grade facet degeneration. No bony stress response however, low grade effusion.”
The Plaintiff’s medico-legal
Mr Awad – neurosurgeon and spinal surgeon
199 The plaintiff was re-examined by Mr Awad in July 2020.
200 Mr Awad had a history of two main incidents at work. Following the ramp incident, the plaintiff started to become symptomatic with back pain and visited a physiotherapist and his general practitioner and required time on and off work thereafter. He was, however, intermittently back at work, albeit with ongoing symptoms.
201 Then, in June 2012, the plaintiff was riding on a mower doing gardening, when the ride-on mower fell towards the creek. In trying to stop this, he jarred his back and “came down heavily on his bum”. This exacerbated his underlying back pain. He required lots of leave thereafter to try and recover from this incident. After twelve months of long leave and on and off work, he returned to work, but in September 2016, he was unable to continue due to the loss of his driving licence and the inability to perform any other tasks due to back pain. He had been suffering with back pain ever since, and had been unable to work as a result.
202 Mr Awad diagnosed aggravation of underlying previously asymptomatic lumbar spondylosis.
203 Taking into account the absence of any previous history and the incident at work, the original incident has most likely been the dominant contributing factor to aggravation of his lumbar spondylosis. The secondary incident in June 2012 has most likely also been a significant contributing factor to his ongoing pain, disability and requirement for treatment.
204 The original injury in March 2012 was likely a traumatic aggravation of a previously asymptomatic lumbar spondylosis. The diagnosis of the July 2012 injury is likely reaggravation of the March 2012 injury.
205 Mr Awad thought it very difficult to delineate which of the two injuries had caused the bigger problem. It was certainly clear, however, the March 2012 incident had taken the plaintiff being a relatively asymptomatic patient with no back issues to be symptomatic. Symptoms had not subsided by the time of the July 2012 injury. Therefore, that the earlier incident was likely causative of the aggravation of lumbar spondylosis, and the July incident was a significant contributing factor to the plaintiff’s ongoing current symptoms.
206 Noting the plaintiff had returned to work after both incidents, both were significant contributing factors to this current state. It was difficult to know whether or not the plaintiff would be in his current situation now after the March 2012 incident alone, or indeed would be in that condition following the July 2012 incident alone without the first. Either way, both had significantly impacted his current situation.
207 Considering the initial incident alone, it is likely the plaintiff had deteriorated such that he may not have been able to perform pre-injury duties in the foreseeable future. It will be difficult to know this for sure given the short timeframe between the incidents.
208 As a consequence of the injury resulting from the second incident on its own, the plaintiff is likely to have been precluded from performing his pre-injury duties as well, given the significant type of injury sustained. This injury alone, in the absence of the first injury, would likely have brought him into the situation he is now in; however, this is something that clearly cannot be proven.
209 He did not think the plaintiff had a realistic capacity for work. He had a capacity for sedentary work, two to three hours a day, for up to two to three days a week.
210 As to whether the plaintiff’s current situation is as a result of the first incident versus the second, it will be very difficult to delineate from the two. He may be in his current situation as a result of one or the other incident independently. They are both significant contributing factors. The prognosis is poor.
211 Mr Awad had previously seen the plaintiff in October 2019. He then stated both incidents were likely significant contributing factors to aggravation of lumbar spondylosis. Both had added to the plaintiff’s restrictions to do normal day-to-day activities and both were significant contributing factors to his incapacity for future work.
Mr Russell Miller – orthopaedic surgeon
212 Mr Miller examined the plaintiff in October 2017.
213 In terms of history, the plaintiff said there was immediate severe pain in the low back after the March 2012 incident. He saw a general practitioner that day and took a few days off work before returning to normal duties, persisting despite ongoing symptoms.
214 There was then the ride-on mower incident, when the plaintiff misjudged a slope and slid towards a creek, colliding with a log and jarring his back. His low back symptoms deteriorated. He took intermittent time off work and was placed on modified duties. His employment was terminated in September 2016 and he was not currently working.
215 The history given was that the plaintiff commenced permanent modified duties twelve months after the July incident, which included the requirement to brush-cut for fewer than 20 minutes at a time. His employment was terminated in 2016.
216 The issue of the relationship of injury to the accident was complex and multifactorial. Mr Miller thought it likely there was a constitutional predisposition to develop lumbar spine pathology, and pre-existing disease in that area. It was likely that the plaintiff’s significant physical work over a protracted time had contributed to the evolution of disease in his low back. It was likely he had a specific low back injury in March 2012 which precipitated symptoms in relation to the disease. It was also likely there was an aggravation of that disease and additional injury in the July incident.
217 His view was therefore that the current clinical status of the lumbar spine substantially reflects work-related injury.
218 Mr Miller thought the plaintiff would have difficulty with work involving repetitive bending and lifting, and lifting of weights of more than 5 kilograms, and he needed to shift his posture regularly. He could not return to pre-injury duties on any significant full-time or part-time basis. Taking into account the plaintiff’s age, educational level and work experience, a return to work would be problematic.
Dr Joseph Slesenger – occupational physician
219 Dr Slesenger examined the plaintiff in 2017 and 2019, and most recently in August 2020.
220 On the first examination, the history was of immediate and severe pain in the lower back with radiation into both legs after the March 2012 incident, with subsequent chiropractic treatment. Treatment was partially successful in relieving symptoms, and the plaintiff was able to return to work after a short period of time off work (a few days); however, he advised that his symptoms persisted. He struggled with his ongoing symptoms and continued to perform normal duties, however, he jolted his lumbar spine a few months later while using a ride-on mower which accelerated down a slope and suddenly came to a stop. He saw his general practitioner and sought further chiropractic treatment.
221 The plaintiff’s symptoms did not improve despite treatment, and he was referred to Mr Brazenor, who advised him to avoid surgery. The plaintiff was generally dissatisfied with the advice given. He had not had any further review and remained under the care of his chiropractor.
222 After the July 2012 incident, the plaintiff had a few months off, and was able to return to work doing modified duties. He was able to build up to pre-injury hours and was restricted to using the brush cutter for no more than 20 minutes, and given a 15‑kilogram weightlifting restriction. Job tasks were essentially similar to the pre-injury duties, and the plaintiff advised that he continued to attend work, though his attendance at work was unpredictable, and he took regular time off, using up all his long service holidays and sick leave. He had ceased work in September 2016 and had not returned since.
223 As of September 2017, the plaintiff was going to the gym four times a week for between 20 and 90 minutes. He provided some advice and training instructions, and rarely sparred. His attendance at the gym was unpredictable and variable, and he was not paid for those tasks.
224 Noting the plaintiff’s past employment history, qualifications, literacy skills, computer skills, and the variable and unpredictable nature of his symptoms, Dr Slesenger did not anticipate the plaintiff returning to work performing suitable alternative duties on a consistent and reliable basis. His prognosis must be guarded.
225 The plaintiff was re-examined in November 2019. He then described deteriorating lower back symptoms increasing in severity and associated disability
226 The plaintiff advised he continued to attend the boxing gym in Essendon, but was no longer training, and he last engaged in limited training a year ago.
227 Dr Slesenger thought it was very difficult to answer whether the ramp incident alone or the ride-on mower incident alone can be considered a cause of the plaintiff’s ongoing lower back injury as it appears he developed symptoms after the first and after the second incident, his symptoms gradually deteriorated. This is also uncertainty, with diagnosis with spinal stenosis not yet excluded.
228 Taking the evidence as presented, he thought the second injury to be the more serious of the two and therefore more likely to be the more significant injury.
229 However, on the next page of his report, he stated he thought the first injury was likely to be the more significant one and the plaintiff’s initial impairment is predominantly due to this injury.
230 Dr Slesenger thought the plaintiff was unfit for suitable alternative duties or his pre injury role.
231 On re-examination in August 2020, the plaintiff said that his knee pain had resolved and noted mild discomfort and stiffness in the left knee but was pain free in the right.
232 As of August 2020, the plaintiff advised he continued to attend a gym at Essendon three times a week for up to half-an-hour for social reasons. He was not engaging in retraining (although he had occasionally advised the attendees on sparring techniques).
233 When asked to comment on the role played by each incident in the plaintiff’s lumbar condition, in his 2020 report, Dr Slesenger thought the ramp incident is likely to be the most significant, with the ride-on mower incident likely to be less significant. In support of this, he noted that the plaintiff’s symptoms developed after the ramp incident and had continued to date.
234 However, Dr Slesenger also noted pre-injury duties were likely to be a significant factor, given the manual handling and postural demands associated with the plaintiff’s pre-injury role. He was also able to return to pre-injury hours with modifications between 2012 and 2016. He advised he was performing much of his pre-injury role.
235 Dr Slesenger concluded that the more significant injury is the manual handling tasks associated with the pre-injury role in general rather than the ramp incident in particular; however, he remained of the opinion the ramp incident has impacted on the plaintiff’s ability to attend pre-injury duties and is likely to continue into the foreseeable future. He did not anticipate the plaintiff returning to work performing suitable alternative duties on a consistent and reliable basis.
Dr Michael Baynes – occupational physician
236 Dr Baynes saw the plaintiff a number of times at the request of the first defendant in relation to the ramp incident, initially in July 2013 and most recently in August 2020.
237 As at July 2013, the plaintiff described intermittent lower back pain and gave a fifteen-month history of low back pain with referred pain into the right leg
238 Dr Baynes believed the injury was caused by slipping and falling whilst loading a mower, and it was likely there was pre‑existing degenerative change in the lumber spine. The plaintiff was then fit for alternative duties, and the work‑related aggravation had not ceased.
239 After the ramp incident, the plaintiff was placed on alternative duties and referred for physiotherapy, but had chiropractic treatment. He advised he had continued working on alternative duties, but had had regular flareups and had been off work. He advised of a past history of mild lower back pain after playing football and cricket. He advised of a second back injury when crashing a ride-on mower, and that aggravated his back pain.
240 Dr Baynes thought the plaintiff was then fit for alternate duties with his current employer.
241 A work site assessment was undertaken on 2 September 2013.
242 In his subsequent reports, Dr Baynes opined that the plaintiff’s pre-existing back condition of degenerative change was aggravated by the March 2012 incident and further aggravated by the incident later that year.
243 He confirmed this view in his most recent report of August 2020. He believed that three incidents (including the mulching incident) caused aggravation, and all were quite significant in terms of the violence or force of the injury. They had all contributed to the worsening of the plaintiff’s condition and continued to be significant.
244 He stated that there was no change in his previous opinion regarding the causation of the plaintiff’s back condition. There were three incidents at work and each were significant in terms of the force of the injury. The work-related aggravation of a pre-existing degenerative change continues and he could not see it resolving in the future.
245 In answer to the question:
“If you consider the worker suffers from any incapacity for work, to what extent do you consider that incapacity is contributed to by:
(a) any low back condition related to his work-related incident on 15/3/12;
(b) any other and if so what other condition/s?”
Dr Baynes stated he believed the incapacity for work was contributed to by the March 2012 accident, as well as pre-existing, age-related degenerative change.
246 He believed the restrictions on activities of daily living were related to the plaintiff’s low back condition, but noted he had undergone bilateral knee joint replacements with improvement in terms of restriction of his knees. There was no sign of abnormal illness behaviour or exaggeration.
247 Dr Baynes did not believe the plaintiff had a capacity for pre‑injury duties and was highly unlikely to have a capacity in the future. He did not believe he had a capacity for suitable employment or sedentary-type duties.
248 He did not believe the plaintiff could undertake membership consultant, security, corporate or luxury apartment hire controller-rental salesperson, or community work which was identified in the October 2017 vocational report.
249 His opinion as to the plaintiff’s work capacity had changed due to the increased pain he described, requiring increased medication, and poor postural tolerances. Dr Baynes also thought the roles identified in the 2019 report were unsuitable and did not believe the plaintiff had a current suitable employment capacity, nor was he fit to undertake retraining now.
Mr Gary Speck – orthopaedic surgeon
250 Mr Speck examined the plaintiff at the request of the TAC in November 2019.
251 Mr Speck had a history of the ride-on mower incident and was told the plaintiff was referred to Mr Speck in relation thereto.
252 In terms of other illnesses or injuries, he was aware the plaintiff had a work injury in March 2012. He saw his local doctor and had chiropractic treatment. He only had a short period off work following that incident and did not recall any further leave time over the following months until the ride-on mower incident. He immediately returned to his full hours. He only had restrictions as far as protracted brush cutting use.
253 Before being sacked, the plaintiff had a further episode of back pain while mulching. He had a spasm at that time. He had some chiropractic treatment and said the pain was the same as before and he was able to continue at work with the same restrictions.
254 Mr Speck noted the knee surgery.
255 His report focussed on the transport accident. He noted the plaintiff’s current issues relating to his low back were associated with two work injuries, the second of which was the transport accident. The first injury, with fluctuating severity of back pain, was still being treated at the time of the July accident.
256 He reported the plaintiff was currently restricted by his knee replacements and recovery phase. He continued to undertake boxing coaching in a limited fashion. Mr Speck thought it difficult to separate the bilateral knee and right shoulder conditions from the limitations provided by the plaintiff’s back condition and believed his back condition is a minor aspect. He thought the plaintiff’s need for assistance related predominantly to his knee replacement surgery.
257 In summary, he thought the plaintiff had ongoing symptoms intermittently severe from the time of the March incident, aggravated in July with ongoing aggravation of his back condition. Of itself, that condition limits him in terms of capacity for protracted sitting, standing or lifting weights greater than 10 kilograms at bench height. Other injuries relating to his knee may provide other restrictions, but these restrictions relate to his back condition.
258 On re-examination in August 2020 relating to the ride-on mower incident, Mr Speck diagnosed aggravation of degenerative change. He thought that condition impacted on the plaintiff’s ability to engage in work.
259 He noted the ramp incident entailed some time off work and then a return to his previous duties. This episode of back pain was self-limited. The mulching incident was on the background of already modified duties which he was able to continue after the exacerbation settled with a return to his previous level of pain and restriction. Symptoms arising from February 2015 are not contributing to his current condition.
Dr Lewis – psychiatrist
260 The plaintiff was examined by Dr Lewis at TAC’s request in September 2020.
261 The plaintiff described the March 2012 incident with one day off per week due to intolerable pain, continuing on slightly modified duties, and engaging in a return to work program. His back never achieved a full remission, indicating he had ongoing issues.
262 There was then the July 2012 incident when the mower lost traction and ended up hitting a tree by the creek. The plaintiff experienced further increased lower back pain following that injury. He needed to take his leave entitlements. He had a further return to work program and continued full time with ongoing limited duties.
263 The plaintiff described a further incident on 20 February 2015 doing mulching. He was off work for a few days, and sought chiropractic treatment, then returned to full-time modified duties, but continued to take regular days off work.
264 The plaintiff stated his employment was subsequently terminated in around September 2016. There was the issue with his drivers licence. Management were not sympathetic and leveraged the situation to manage him out in the context of his pre-existing pain symptoms. He stated the employer later indicated he was not capable of undertaking the inherent duties of his role due to his physical condition.
265 The plaintiff stated his difficulties around that time were further complicated by his older son, who was having problems with the police.
266 The plaintiff reported he continued struggling with ongoing low back pain, rating his average pain symptoms as 7 to 8 out of 10. He described the onset of lowered mood soon after ceasing work on a background of pain, physical restrictions, occupational incapacity, poor response to treatment, and perceived lack of support by the employer.
267 Dr Lewis noted the plaintiff’s problems in opening up with the psychologist, and that he was taking Selegiline as an anti-depressant.
268 The plaintiff referred to the workplace injury as having destroyed his life, he having prior thereto been physically very active and a “fitness nut”. Now, he could barely train, and it was all gone. As a consequence of his workplace injury, his social networks had been significantly reduced. He described significant sleep disturbance and lowered mood on a background of chronic pain. He was socially withdrawn and referred to terrible concentration and that the workplace injury significantly impacted his relationship at the time.
269 The plaintiff reported that he had now found himself becoming fixated and preoccupied with issues, many of which were out of his control. He now had a limited range of interests.
270 On examination, the plaintiff’s demeanour was despondent. Affect was predominantly restricted to the depressed range, and his mood was at least moderately depressed. Major themes centred around persistent lowered mood and feelings of despair on a background of pain, physical restrictions, occupational incapacity, and poor response to treatment.
271 On the history available, Dr Lewis thought the plaintiff’s chronic pain symptoms and the circumstances in which he ceased work were a significant contributing factor to his history of escalating mood difficulties and feelings of despair.
272 Dr Lewis thought the plaintiff presented with a Chronic Adjustment Disorder with depressive features sustained in the subject transport accident. He justified the diagnosis on the basis of chronic lowered mood and feelings of despair on a background of pain, physical restrictions, occupational incapacity, poor response to treatment, and loss of previously enjoyable recreational interests. He thought the psychiatric prognosis was inextricably linked to the cause of the underlying medical condition. The plaintiff was likely to suffer from mood difficulties so long as he contended with pain, physical restrictions and occupational incapacity.
273 Dr Lewis considered the plaintiff was completely incapacitated for pre-injury duties and all alternative duties on psychiatric grounds, consequent on his depressed mood, poor motivation, sleep disturbance, cognitive difficulties and social withdrawal.
274 He concluded other conditions were not applicable to the plaintiff’s current condition, and there was no relevant psychiatric history prior to the July 2012 accident. He thought the plaintiff required psychiatric referral for a review of psychotropic medication.
Dr Timothy Entwisle – psychiatrist
275 Dr Entwisle examined the plaintiff on behalf of the TAC on 5 December 2019.
276 He had the history of the 2012 incidents. The plaintiff reported the latter to his employer on 1 August 2012, but did not lodge a separate claim until the TAC told him he needed to for his serious injury application.
277 There was a further incident on 20 February 2015 when the plaintiff had a spasm in his back and a claim in relation thereto was accepted.
278 Following the March 2012 incident, there was a few days off work and then a return to normal duties, and after the second, a return to modified light duties on a graduated return to work program with normal hours and restricting heavier aspects of duties, particularly brush cutting.
279 The plaintiff told Dr Entwisle about losing his licence. His boss told him there would be no problems and he could continue to work alongside a co-worker who would drive. The shop steward, however, said it was likely the Council would sack him, and that night, the boss called him in tears and told him he had been sacked for driving Council vehicles without a licence.
280 The plaintiff then began to look for work and made an attempt to get his traffic control certificate, but did not pass the practical because of his back. Helping his friend out at the door of a venue did not work. He had begged the Council to train him on the computer while still employed previously, but that had not happened and he remained off work.
281 Dr Entwisle noted the plaintiff had seen a psychologist and that he was to see another psychologist via a mental health plan organised by his general practitioner.
282 On a mental state examination, the plaintiff described being a mess and that he felt like he had been discarded and was an embarrassment to his children, and he was sick of his pain. His mood and spirits were low. He slept a maximum of two hours because of pain. Memory and concentration were limited. He described low back pain with radiation into both buttocks and right calf, and his pain was worse at night and had become a “nightmare”.
283 The plaintiff advised he attempted to return to work once his employment was terminated, but to no avail, and he had fallen into a state of deep depression in the context of his unemployed status and chronic pain.
284 Dr Entwisle perused the mental health plan referral of June 2017, noting the plaintiff often felt very low and was thinking about taking his own life; however, he admitted he would not do so on account of his family.
285 Dr Entwisle thought the plaintiff had not had appropriate treatment for his major depressive illness and urgently needed to be attended to, given his history of chronic low mood, tearfulness, lack of motivation and accompanying emotions of hopelessness and helplessness. He thought the major depressive illness had been caused by the transport accident in combination with the plaintiff’s other injuries. He thought the prognosis for the psychiatric injury was for improvement, provided the plaintiff had appropriate, sustained psychiatric treatment, and he would also benefit from a pain management program. His psychiatric injury has impacted upon his domestic activities.
286 Dr Entwistle considered the plaintiff’s psychiatric injuries do impact on his ability to work, and whilst it is his pain which restricts his work capacity, largely the accompanying depression, which he has experienced now for some years, contributes in a significant way also.
The First Defendant’s medico-legal
Mr Peter Battlay – orthopaedic surgeon
287 Mr Battlay saw the plaintiff on behalf of the first defendant in March 2013 in relation to his statutory benefits claim.
288 The plaintiff then described a fairly continuous pain to the right of the midline at the lower lumbar spine. There was no history of numbness. He was restricted in sitting. He had no pain or difficulty with walking and no problems with driving, but had increased back pain when cooking or stooping over the kitchen bench
289 On examination, the plaintiff presented as a solidly built, middle-aged man in no obvious discomfort with a normal affect. He walked without a limp. Extension of the back either way produced right-sided L4 pain.
290 He thought the plaintiff had aggravated degenerative changes in his back. The condition was longstanding, but aggravated through the two incidents, following which his symptoms had not improved. He then was not fit for pre-injury hours and duties and was on a return to work plan.
291 Following the first incident, there was a history of only a couple of days off, then the plaintiff tried to return to pre‑injury duties. A few months later, he was on the ride-on mower that went down a slope but eventually stopped before going into the creek. He was subsequently off work and on light duties with chiropractic treatment. An initial return to work plan was disastrous. He went off work again and a current return to work plan had just started at that stage. Mr Battlay thought the plaintiff should permanently avoid heavy manual handling in excess of 10 kilograms.
Dr Boffa – occupational physician
292 Dr Boffa examined the plaintiff on 23 April 2015 in relation to an injury suffered in March 2015 (the mulching incident).
293 Dr Boffa noted the 2012 incident where the plaintiff slipped and landed on his back. He developed back pain that had settled when, two months later, he had an accident on the ride-on mower which struck a tree. This incident aggravated pre‑existing left lumbar pain which, on that occasion, radiated to the left foot. Since 2012, he had had intermittent left lumbar back pain. He had made a couple of attempted returns to work in early 2013 and eventually made a full return.
294 On 20 February 2015, the plaintiff was spreading mulch over a garden bed with a pitchfork. As he took a load of mulch on his fork and twisted to distribute it, he felt sudden, severe low back pain that referred to the right hamstring and caused him to cease work. He was certified off work for three weeks and had since graduated to normal hours and restricted duties, with a lifting capacity of 5 kilograms. He was taking Naprosyn, doing exercises at home and going to the chiropractor regularly. He had been certified fit for a return to restricted duties. He was not wearing a 20-kilogram backpack for spraying and was not able to use the heavy brush cutter for more than 15 minutes without a break.
295 Dr Boffa diagnosed mechanical low back pain without radiculopathy caused by the accidents at work in 2012 and subsequent manual handling in the course of his duties. It might be a further twelve weeks before the plaintiff returned to pre‑injury duties wearing a backpack and using the brush cutter normally, but he would need to remain on modified pre‑injury duties that allowed a change of posture, with no repetitive bending, twisting and lifting more than 10 kilograms. He thought the plaintiff’s current condition was still materially contributed to by the compensable injury in March 2015.
Dr Sabetghadam – occupational physician
296 Dr Sabetghadam examined the plaintiff in June 2016. This examination is noted to be in relation to injury in February 2015 but the report seems to be directed towards injury in 2012, focussing on the transport accident.
297 When examined, the plaintiff was then on permanent restricted duties based on his pain perception and tolerance. He was unable to do more than that in his modified duties in his pre injury hours.
298 Dr Sabetghadam could not impose work restrictions because there was no risk of harm and he could not impose work limitations because there was no limitation of physical activity.
299 The plaintiff reported he then attended gym work and participated in bridging for core strengthening. He also participated in sledge hammering on a tyre, and squatting and bench pressing, three lots of twenty repetitions, 60 kilograms each time. He also participated in a lot of seated lateral pulldowns at least twice a week. He reported he could participate in gym work at least twice a week.
300 Dr Sabetghadam thought the plaintiff’s current medical condition was not materially contributed to by the compensable injury. The plaintiff suffered from chronic lower back pain that waxed and waned, and was associated with underlying degenerative changes in his lumbar spine. The mulching incident caused the aggravation of that pain which would continue to deteriorate despite occupational and social activities, based on evidence in the medical literature.
301 When asked to comment on the 2012 MRI and CT scans, Dr Sabetghadam concluded the plaintiff suffered from degenerative changes at multiple levels of the lumbar spine. His current low back pain was related to those changes. The single incident in 2012 could contribute to aggravation of it, however, it is expected that aggravation would cease after a period of time, especially when the plaintiff is participating in his social activities and his own gym.
Mr Haig – consultant orthopaedic surgeon
302 Mr Haig saw the plaintiff in September 2017.
303 The plaintiff explained his low back complaint comes down to two accidents at work. He was off for one or two days after the first incident, after which his back was no good. The mower in the second accident hit a log and hurt his back again. He had a couple of days off work and then returned to work, but with continuing pain.
304 He believed the ramp incident represented an aggravation of the plaintiff’s low back pain. The ride-on mower incident was a further aggravation. It was more likely than not that the restrictions of the plaintiff’s activities of daily living were more as a result of age-related degenerative disc disease than to any particular work-related condition.
305 He thought there were a number of roles the plaintiff could work in, essentially of a non-physical nature, like courier work and warehousing. He was sure there were many others. He could work full time. He believed the plaintiff’s limited capacity for certain types of work was largely as a consequence of age-related degenerative lumbar spondylosis. He thought the jobs suggested in 2017 jobs were suitable.
306 Following re-examination in March 2018, Mr Haig remained of the view that the 2012 incidents represented aggravations of pre-existing lumbar spondylosis. Any work-related contribution to his lumbar spine had long since resolved and the current complaint was due to the natural history of his degenerate lumbar spine
307 He believed the plaintiff could perform work of an essentially non-physical nature such as earlier described, but omitting any lifting. Security work would now be contraindicated. He could work full time.
Dr Graham – occupational physician
308 Gallagher Bassett arranged for the plaintiff to be examined by Dr Graham in November 2018, in relation to the ride-on mower incident.
309 Dr Graham had a history of the ramp incident in February 2012, after which the plaintiff was off work for two months and saw Mr Brazenor. He then performed modified duties before the December 2012 incident (the ride-on mower incident).
310 Following the ride-on mower incident, the plaintiff had two months off before returning to modified duties on increasing hours. His employment was terminated in September 2016 due to drivers licence issues.
311 Dr Graham suspected the plaintiff had significant degenerative change in his lumbar spine that had been aggravated by both incidents. He suggested that the ride-on mower incident was probably an aggravation of pre-existing degenerative change in his lower back. It may have been a recurrence of an injury sustained in February 2012 but this recurrence will have been a recurrence of longstanding degenerative change. Employment was the significant contributor to the aggravation.
312 He was doubtful the plaintiff would return to full pre-injury duties and thought he would be fit for modified or alternate duties.
Dr McLean – orthopaedic surgeon
313 At the request of the plaintiff’s solicitors, Dr McLean examined the plaintiff in July 2020, in relation to his knees only.
314 The plaintiff gave a history of knee injuries at work, and then the March and July 2012 back injuries, which did not involve his knees, and led to some restrictions of work activities with modified duties.
315 The plaintiff stated that he was aware of his knees as he was protecting his back and vice versa when he was working. He was then aware of progressive worsening in the pain relative to both knees, and an increase in the general bowing of both knees. He stopped work with the Council in September 2016 relative to his ongoing significant back problems, and had not worked since.
316 Pain continued into both his knees, limiting his ability to walk any distance or to be standing, or the bending/activities, then developing night pain.
317 In terms of current symptoms, the plaintiff stated that with increasing pain in both knees, and this interfering with his sleep, along with his back interfering with his sleep and ongoing night pain, he saw his general practitioner and was referred to the RMH Orthopaedic Department and had been placed on a public waiting list for surgery.
318 The plaintiff had a right total knee replacement in June 2019, with a left replacement in October 2019.
319 The plaintiff was seen on 7 July 2020, just over a year following the right knee surgery. He stated he is now far more comfortable with his knees and does not need any medication or walking aids, and he can walk for 30 minutes or so on the days that his back is good. He is unable to fully squat or kneel relative to either knee. There has not been any giving way or locking or catching.
320 The plaintiff stated that following his work-related low back injury in March 2012, then significantly aggravated by the work incident of July 2012, his back had been a major problem in restricting his activities and the need to modify the way he does any activities. The back problems were now influencing significantly his ability to perform any activities on a day-to-day basis, and having good and bad days through to the present. As a result of his back problems and inability to work, he had suffered secondary significant psycho-emotional problems.
321 Dr McLean thought that the plaintiff’s limitations, now relative to any employment, particularly relate to his back and psycho-emotional status.
322 In his view, as a result of his left knee the plaintiff would not be able to return to work as a gardener with the Council, and would be limited to purely semi-sedentary type possible work activities, and would not be able to do manual work. He could work 20 to 30 hours a week sedentary. He had a similar opinion as to the right knee.
323 Dr McLean thought there was a good short-term prognosis of the plaintiff’s left knee condition, given the fact the plaintiff is now far more comfortable relative to pain and the general function of being able to walk on flatter surfaces on good days relative to his back.
Dr Terence Saxby – consultant orthopaedic surgeon
324 Dr Saxby examined the plaintiff on behalf of WorkCover in September 2020.
325 Dr Saxby had a history of the ramp incident, the ride-on mower incident and the February 2015 mulching incident.
326 He believed the most likely cause of the plaintiff’s lumbar condition was simply degenerate change over time. Lumbar spondylosis is likely the major cause of his problem. The incidents would only be insignificant in the causation of his long term back pain.
327 He thought the incident on the ramp would have caused the temporary aggravation of his back pain which should have resolved. In the absence of that incident, on the balance of probabilities, the pre-existing condition would be the same but in other words he did not believe the ramp incident has altered the long term prognosis of the condition.
328 He thought the four jobs suggested in 2019 would be appropriate on a full-time basis. He considered the plaintiff not likely to be able to return to his pre-injury employment, based on his reported symptoms.
The Second Defendant’s medical evidence
“Dennis” – physiotherapist
329 “Dennis” saw the plaintiff on referral from Dr Tan in May 2014. In correspondence to Dr Tan, he noted the plaintiff’s history as “lifting motor mower eighteen months ago, slipped on a ramp onto back (continues to work as a gardener)”.[109]
[109]No mention of the ride-on mower incident
330 The plaintiff’s complaints were then of “strong LBP since”, “was L buttock pain – settling – but now R buttock pain”. On examination, lumbar spinal movements were stiff and there was tenderness at L4‑5 and restricted straight leg raising.
331 In terms of treatment, Dennis noted the plaintiff “has begun with gentle mobilizing, simple ‘core’ strengthen exercises and postural advice”. Further treatment would be advised for his chronic discogenic LBP problem.
Dr Megan Eddy – RMH
332 Dr Eddy saw the plaintiff on 25 October 2017. In a very long note of that attendance, she set out:
“History: taking too many pills
...
very down and depressed
hoping [to] be able to prescribe alternate way of dealing with pain other than pills
...
no active claim
attempting to reopen claim
worked for ... council last 10yr prior to that 5yr another council
finished work sept 2016 sacked – for losing drivers licence demerit points
...
attempted to do lollipop couldn’t standattempted night security guard even stool too old.”
333 Dr Eddy also noted the plaintiff really struggled to stand and watch his son playing football. He was having chiropractic treatment every three weeks and taking Voltaren. He had seen a psychologist four times.
334 There was also a note of “LBP – worsened over last 12 months R>L bigger area”. “Used to be mainly L.” “L leg symptoms 12 months.” There was also a note of “constant pain fleeting moments of relief”, problems sleeping, and leg pain any distance more than 10 minutes’ walking. “Taking Targin the last three weeks 4 days a week hard question.”
335 Dr Eddy also noted “Dad 61 unemployed ‘it’s pathetic’”.
“[S]till go boxing gym what can – still do some supervision routine push ups don’t hurt, stationary bike ok, good day couple rounds on bags and then bad.
About July 2016 huge increase pain after mulching.”
336 On examination, Dr Eddy found there was an extremely limited range of moment. The diagnosis was CLBP, lots of psychological distress. Medication options were to stop Voltaren. “Gabapentin ? Palexia.” Referral to RMH. “Need to stop [Eldepryl]” and needs to see physio.
337 In her letter dated 25 October 2017 to Dr Unglik, the plaintiff’s general practitioner, Dr Eddy, noted the plaintiff was going through a tough time at the moment, with a high level of distress and mood disturbance which was complex and multifactorial, on the back of an upcoming court case, financial difficulties, numerous family difficulties and unemployment, being dismissed from work in September 2016. Attempts at work recently have been unsuccessful in terms of severe low back pain. He has commenced seeing a psychologist.
338 Dr Eddy noted the entire history of the cause of the plaintiff’s pain was not gathered today, but he had had back pain since about 2012 which escalated to becoming constant and daily in the last eighteen months he felt since an incident at work in May 2016, which was a twisting incident while mulching. Prior to that, he had a lower level of pain which he managed by going to the chiropractor every two or three weeks. He had a good range of stretches that he did daily and tried to keep himself as fit and active as possible, being involved in boxing training. His main difficulties were with standing and walking, with a 10‑minute walk very difficult.
339 The plaintiff had been on Targin for about a year, approximately four days a week. Dr Eddy thought he was taking far too much Voltaren, eight to ten a day, which was starting to cause some abdominal discomfort. She carried out a physical examination and anticipated a further attendance
340 Given the plaintiff’s new left leg symptoms, she intended to organise an up-to-date MRI scan. She wondered whether the general practitioner would stop prescribing Eldepryl as an anti-depressant, because the plaintiff’s mood was still poor, and it was limiting the ability to use other medications. She suggested a trial of Palexia in place of Targin, and a change in sleeping medication.
341 She thought it possible part of the plaintiff’s LBP was facetogenic disease, and he would potentially benefit from exploration of this with medial branches with a view to potentially RFAs, if they were positive. She sought to review him in a month.
Royal Melbourne Hospital Knee Clinic
342 The plaintiff was assessed at the Osteoarthritis Hip and Knee Service at the RMH in May 2018 in relation to his knee condition, which was diagnosed as bilateral tricompartmental knee osteoarthritis. The plan then was to refer him to an orthopaedic surgeon for surgical opinion and weight loss.
343 The history was of twelve years of bilateral knee pain, with worsening symptoms in the last two years. He reported two workplace accidents that had resulted in right knee pain in 2006 and 2009, and subsequent scopes that were covered under WorkCover. He also had left knee pain that he believed had onset secondary to footballing injuries, and had a scope on that knee around that time.
344 The plaintiff was then complaining of constant bilateral medial joint line pain, worsened by most weightbearing activities. He reported frequently waking in the night secondary to knee pain, as well as giving way and knee-locking symptoms in both knees. Voltaren provided limited relief. He also reported lower lumbar region pain the subject of current workplace litigation. He did not feel that attributed to his knee symptoms.
345 Bilateral knee x‑ray showed changes of advanced medial and patellofemoral compartment osteoarthritic change.
346 The RMH physiotherapist thought the plaintiff’s symptoms were consistent with advanced bilateral knee osteoarthritis. The risks and benefits of surgery compared to conservative management were discussed. The plaintiff was keen to proceed to surgery, and he was therefore referred for an orthopaedic opinion, and discharged from the clinic.
Shoulder procedures
347 The plaintiff had a CT-guided right shoulder hydrodilatation in March and May 2017 organised by his general practitioner.
Surveillance
348 The first defendant admitted there were numerous hours of surveillance and limited film that was not shown.
349 In the first half of 2017, there was 18.5 hours of surveillance with no film. In August 2015, 15 hours’ surveillance and one minute of film. In October/November 2015, 15 hours’ surveillance and 11 minutes of film, in December 2019 and January 2020, 16 hours’ surveillance and 7 minutes of film.[110]
[110]T186
Vocational evidence
Plaintiff
350 Mr Paul Hartley, vocational assessor, provided his first report in January 2020 following an interview with the plaintiff. The plaintiff told him since trying to work for his friend in Essendon, he “had not engaged in any voluntary, casual, full time or part time or self-employment since that time”.
351 Mr Hartley was asked to comment on the suitability of the two suggested roles - membership consultant at Equilibrium Health and Fitness and membership consultant at Goodlife Health Club.
352 Although in many instances this role would fit within the plaintiff’s residual functional capacity, Mr Hartley thought the plaintiff did not have the necessary transferable skills to be able to meet employability requirements or the inherent job requirements. He did not believe the plaintiff was realistically saleable/marketable for the job and it could not be considered suitable employment for him. He was unable to suggest any suitable employment options for the plaintiff.
353 In a further report of September 2020, having been provided with recent medical opinion from Dr Slesenger, Mr Awad and Mr Speck, Mr Hartley was unable to suggest any suitable job for the plaintiff. He thought his residual capacities were unmarketable in the current labour market and were likely to remain so such that his workforce detachment will continue into the foreseeable future.
The First Defendant
354 Healthe Work provided a report in October 2017.
355 The author, Nicholas Janides, concluded the plaintiff was a gardener all-rounder who possessed some excellent skills. He also possessed experience in customer service, sales, gymnasiums, and in security operations. He was able to consider more supervisory and customer-based roles where he could consolidate his work skills to more sedentary opportunities. It was reported he suffered from a low back injury, so the vocational options recommended were ones that would allow him to alternate his posture at random and avoid any back constraints and lifting expectations.
356 The suggested jobs were membership consultant, fitness industry (typically base salary is in the range of $45,000 to $60,000); security – corporate or luxury apartment environment ($56,680 to $67,790 per year); hire controller/ rental sale person ($19.59 to $25.90 per hour), and community work supervisor ($23.85 to $50.60 per hour, or entry level, approximately $50,000).
357 In its vocational report of 7 March 2019, AMS Consulting suggested the following jobs: security ($22.24 to $45.51 per hour) – front desk concierge, membership consultant – gymnasium/fitness field ($21-$25 per hour), storage consultant ($21-26 per hour) and community works supervisor ($23-50 per hour).
358 The membership consultant role was said to be appropriate because the plaintiff had previously owned and operated his own gym. He would be responsible for all membership enquiries and then eventually signing all individuals to contracts. It was not a trainer role, but purely a role that entailed him returning to the industry to undertake membership and clerical responsibilities.
359 Duties included assisting new members with applications and membership; introducing new members to equipment, support and facilities; seeking and generating new leads and making appointments for new prospective members; completion of paperwork, email, faxing and answering enquiries; may undertake reception tasks – greet members, check membership enquiries and maintain and nurture client relationships.
360 No lifting was envisaged and it was purely customer service/clerical. Some data entry to update details and produce contracts. There was opportunity to alternate posture.
361 The casual rate was $21 to $25 per hour or a commencing salary of $45,000 going to $60,000.
362 Two particular jobs were suggested: One was health and fitness call centre sales consultant in Footscray for Ultimate You, and the second was a full-time membership sales consultant at Genesis Fitness in Preston.
363 Storage consultant and community work supervisor were also suggested.
364 There was a further AMS Consulting report in September 2020. Added to the 2019 list of suggested jobs were customer service representative and mystery shopper roles.
Other documents
365 By letter of 8 September 2016, the Council advised the plaintiff of a meeting in relation to the licence incident. He was advised his actions may be a breach of the Council policy and may result in disciplinary action to and including termination of employment.
Termination letter
366 In its letter of 15 September 2016, the Council advised the plaintiff it was a serious offence to drive a Council vehicle without a licence. It was also alleged the plaintiff was now unable to fulfil the inherent requirements of his position as a gardener as having a valid drivers licence was an inherent and essential requirement of his role. The Council’s preliminary view was the plaintiff could not comply with the inherent and essential requirement of his role to hold a valid drivers licence. Its preliminary view was that employment was terminated on the basis of misconduct and because he could not perform the essential requirements of his position as a gardener.
367 The plaintiff was advised by letter dated 23 September 2016 that a decision had been made to terminate his employment for driving without a licence and because he could not perform the inherent and essential requirements of the position because holding a valid drivers licence was such a requirement.
Overview
368 It is not in issue that the plaintiff suffered a compensable injury to his lumbar spine in two incidents while at work with the Council – the first in March 2012 (“the ramp incident”) and the second in July 2012 (“the ride-on mower incident”) which, as it is a transport accident, involves the TAC.
369 The consensus of medical opinion is that both injuries involved aggravation of pre-existing degenerative changes in the lumbar spine.
370 The injury suffered in the ride-on mower incident was a further aggravation of the earlier injury, and therefore the principles in Petkovski v Galletti[111] approved in AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz[112] apply.
[111][1994] 1 VR 436
[112](2012) 34 VR 309
371 As there is a pre-existing back condition, I must consider what the evidence discloses as to the prior condition of the plaintiff and determine whether the additional impairment resulting from the transport accident is serious and permanent.
372 In Petkovski v Galletti,[113] the Full Court of the Victorian Supreme Court accepted the proposition that –
“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused. …”
[113] Supra
373 I must determine whether the consequences of the ramp incident alone are serious and permanent as at the date of hearing and/or the consequences of any aggravation in the ride-on mower incident are “serious” and long term.[114]
[114]AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (ibid)
374 Further, as the plaintiff is also suffering from issues with his knees and right shoulder, as Maxwell P said in Peak Engineering & Anor v McKenzie,[115] Maxwell P, when a separate injury is also producing pain and suffering consequences for the claimant, as well as the relevant injury:
“The Court must decide whether the consequences of the original injury are ‘more than significant or marked, and ... at least very considerable’. For that purpose, it is necessary — so far as the evidence permits — to identify the consequences properly referable to the original injury, and to exclude the consequences referable to the subsequent injury.”[116]
[115][2014] VSCA 67
[116]At paragraph [1]
375 I am bound to identify, and exclude, the continuing consequences for the plaintiff of any non-compensable injury and when the consequences properly referable to the compensable injury are identified, identify them as “serious”.[117]
[117]At paragraph [2]
Credit
376 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[118]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[118](2010) 31 VR 1 at paragraph [12]
377 Counsel for the plaintiff submitted the plaintiff had a good work ethic and had continued to work despite suffering injury. While there was surveillance, no film was shown. No doctor thought the plaintiff was embellishing or consciously exaggerating his symptoms.[119]
[119]T342
378 Counsel for the first defendant described the plaintiff as an unreliable witness who it was submitted said things he thought were helpful to his case.[120] He also understated his level of gym activity to examiners.[121]
[120]T229
[121]T351
379 In my view, the plaintiff was generally a credible witness. He did, however, understate his level of gym involvement and had no mention of any earnings from working as a trainer until his viva voce evidence. Further, I do not accept that one of the reasons the Council terminated his employment was because of his inability to do his duties as a result of back pain. It seems he simply lost his job because without a drivers licence he could not perform the inherent duties of the role.
Lumbar condition – pre ramp incident
380 As I indicated during the hearing, in my view, the plaintiff was not having lumbar problems of any significance as at the first date.[122]
[122]T51
381 While he had chiropractic treatment at various times, he last attended before the ramp incident on 24 and 29 August 2011. After four visits in 2009, the plaintiff did not attend in 2010.
382 He had not seen his general practitioner for any back issue since March 2008 and in April that year, his doctor noted “back pain is good”.
383 The plaintiff had been able to work full time in unrestricted duties as a gardener with the Council, last on modified duties in January 2010, over two years earlier.[123]
[123]T51, T90
384 As counsel for the plaintiff submitted, the plaintiff’s symptoms in relation to his lumbar spine before the ramp incident were “fleeting” and that until the ramp incident, he had a back that was functional for heavy gardening work and vigorous activities, a long-term job that gave him considerable satisfaction, and he enjoyed a range of activities, particularly sporting.[124]
[124]T326
The ramp incident
385 After a couple of days off work, the plaintiff returned to work on modified duties, with a lifting restriction and time limits on undertaking heavier tasks.
386 Before the ride-on mower incident, he had ten days sick leave and was certified unfit for work from 26-28 March and 11-15 July. He received weekly payments from 23 July to 3 August under the ramp incident claim.
387 He attended his general practitioner eight times before the ride-on mower incident and was referred by him to Mr Brazenor. He saw chiropractor, Dr Lawrence, on ten occasions before 31 July 2012. Five visits were in the last week of July. As the plaintiff agreed in cross-examination, his back must have been pretty bad for him to attend with this frequency. He was still providing modified duties certificates in relation to the ramp incident at the time of the ride-on mower incident and thereafter.[125]
[125]T69
The ride-on mower incident
388 Following this incident, the plaintiff had significant periods off work until resuming full-time modified duties in mid 2013. He received weekly payments for 34 weeks, paid under the ramp claim, with the last payment on 26 July 2013.
389 Consistent with this return to full time duties, in March 2013, Mr Brazenor noted the plaintiff had very little leg pain, just mild migratory back pain and in July that year, the plaintiff reported to Dr Baynes he was experiencing intermittent lower back pain.
390 The plaintiff saw Dr Lawrence frequently for the rest of 2012, 47 times in 2013, and nine times in 2014.
391 Save for saying many times that his back pain worsened after this incident, and has continued to do so, the plaintiff was unable to be more precise as to the degree of worsening or the contribution of any of the various insults to his back since the first date. This is not a credit issue; it is a matter of fact and a difficulty accepted by his counsel. The plaintiff described severe pain after both incidents, and then it got progressively worse.[126] It got worse as time went on, “right up until today”.[127]
[126]T24
[127]T25
392 During 2014, the plaintiff continued on modified duties. No certificates were issued and no payments were made.
393 The next relevant event was the mulching incident in February 2015. The plaintiff received weekly payments for two weeks in March 2015 on this accepted claim and had a number of periods where he was certified unfit for work (6-11 May, 17-29 September, 25-27 November 2015, seven days in January 2016, six days in February, seven days in March, two in April and one in June).
394 Having seen Dr Lawrence three times in early February 2015, the plaintiff saw him 23 times later that year. 25 August 2016 was the last time he was seen before his employment was terminated, having been 22 times that year. As at 2 June 2016, he certified the plaintiff fit for suitable duties.
395 This situation continued until September 2016, when the plaintiff’s employment was terminated when the Council became aware he was driving a Council vehicle without a licence – his licence having been suspended, without his knowledge, for excessive demerit points.
396 I do not accept the plaintiff’s employment was also terminated because of his inability to do his physical duties as he claimed. The letter of termination mentioned his licence issue only. It was essential for his work that he have a licence. Without it, he did not have a job.
397 There is no medical evidence supporting any deterioration in the plaintiff’s back condition leading up to September 2016.
398 The clinical notes were not capable of supporting a finding that the plaintiff was unfit for work at the time he was terminated. Significantly, there is no treating opinion before the Court to that effect. It has never been his case that he was incapacitated for work at that time. As counsel for the first defendant submitted, the plaintiff deposed he worked with breaks and had some time off work due to back pain.[128]
[128]T347
399 Dr Sabetghadam examined the plaintiff in mid-2016, and he thought the plaintiff had a limited capacity.[129]
[129]T347
400 As counsel for the plaintiff conceded there was nothing in any treaters notes of the plaintiff telling them he was getting worse at the time his employment was terminated.[130]
[130]T286
Findings
401 The plaintiff faces significant difficulties in identifying serious consequences related to either (i), the ramp incident, or (ii), aggravation consequences that are serious in relation to the ride-on mower incident.
402 As counsel for the plaintiff conceded, the plaintiff himself was unable to delineate the consequences of each compensable injury. Counsel agreed that the plaintiff’s back condition was progressively worsening and he could not identify either the ramp or the ride-on mower incidents being significant in that context. As the plaintiff could not do so, “it has got to be done by medical evidence”.[131]
[131]T319
403 Counsel further agreed that it was not possible to delineate as a result of which incident the plaintiff’s ability to engage in gym and other activities had been compromised. He was only able to say that he went to the gym less and tried to do things with increasing difficulty. Counsel conceded she could not provide “more specific things”.[132]
[132]T320
404 I accept, as counsel for the first defendant submitted, the plaintiff had a series of frank insults, including the mulching incident in March 2015 after which his back got progressively worse.[133]
[133]T203
405 In terms of the medical evidence, counsel for the plaintiff submitted on Mr Awad’s view, the Court would be well able to find that there are serious injury consequences from both incidents.[134] Mr Speck was relied on in the TAC application as were Richards & Anor v Wylie[135] consequences.[136]
[134]T330
[135]Supra
[136]Supra
406 It was submitted Mr Awad thought the ride-on mower injury alone in the absence of the ramp injury would have brought the plaintiff to the situation he is in now. Although he said that the ramp injury was the dominant cause of his aggravation injury and its consequences, “if you strip away the effects of that incident, the plaintiff would still be where he is today”.[137]
[137]T328
407 Further, Mr Awad thought the plaintiff was totally incapacitated for suitable employment.
408 Mr Speck, whom it was submitted “was held in high regard”, got to a similar point to Mr Awad, but did so by an entirely different logical process. He is fully aware of the ride-on mower incident and the fact that there was treatment for the ramp incident continuing at the time thereof. He had access to all the general practitioner records and found the first was self-limiting.
409 Mr Speck then went on to attribute a range of consequences to the ride-on mower incident – ongoing incapacity for protracted sitting, standing or lifting weights, issues with housework, self-care and social limitations. Further, the plaintiff had been on Targin since 2017.[138]
[138]T330
410 He also thought there was a loss of earning capacity, although that was not required under the TAA application.[139]
[139]T332
411 It was submitted both Mr Awad and Mr Speck gave a sound basis on which the Court could find that it is the consequences of the ride-on mower incident are serious.
412 I do not accept that the medical evidence supports a finding of seriousness, as at the date of hearing, in relation to either incident.
413 Mr Awad provided his opinion based on an inaccurate history. The plaintiff was not intermittently back at work before the ride-on mower incident. He was back full time when that incident happened.[140]
[140]T207
414 Following his initial examination in late 2019, Mr Awad simply stated that both incidents were likely significant contributing factors to aggravation of lumbar spondylosis. Both had added to the plaintiff’s restrictions to do normal day-to-day activities and both were significant contributing factors to his incapacity for future work.
415 While he gave more detail in relation to this issue in his second report, his opinion does not enable the Court to successfully carry out the task required by the Court in Filipowicz.[141]
[141]Supra
416 Further, Mr Awad conceded in relation to whether the plaintiff’s current situation is as a result of the first incident versus the second, it will be very difficult to delineate between the two. He may be in his current situation as a result of one or the other incidents independently. They are both significant contributing factors.
417 Further, Mr Awad made no distinction between the consequences of each incident in either report.[142] He did not provide an adequate path of reasoning for his conclusions.
[142]T249
418 Mr Speck is also not of great assistance as he too has an inaccurate history leading to his conclusion the ramp incident was “self limiting”.[143] He thought the referral to Mr Brazenor post dated the ramp incident. Mr Speck was unaware of the true nature of the plaintiff’s back condition immediately before the ride-on mower incident, having seen his chiropractor five times in the week before and obtaining certification under the ramp incident claim at that time.
[143]T331
419 No treating practitioner has provided any opinion as to the role played by the two incidents in the plaintiff’s current presentation.
420 Further, a correct reading of Dr Baynes’ report does not assist the plaintiff in relation to this issue. The tenor of his most recent report is that there is no change in his view regarding causation – that the three incidents have all contributed to a worsening of the plaintiff’s condition. His answer to one specific question in his most recent report, directed at the ramp incident, does not alter this view.[144]
[144]T348
421 Dr Slesenger’s second report is confusing and seemingly contains a typographical error, stating in that report it is both the first and second incident that is the most significant. Further, in his view, the heavy nature of the plaintiff’s work throughout the course of his employment, not just the two incidents, are contributing factors.
422 Mr Battlay thought the two incidents aggravated degenerative change. Mr Haig concluded current restrictions were more as a result of age-related degenerative disease than any work-related condition. Dr Graham and Mr Miller did not distinguish between the contribution of either incident.
423 In summary, the medical evidence and the evidence as a whole, does not enable the plaintiff to delineate the consequences, work or otherwise, referable to one or both incidents that are serious as at the date of hearing, and simply accumulates the injuries.[145]
[145]T196
424 Further, I am not satisfied that as a result of either incident the plaintiff ceased work in September 2016. There is no medical evidence of a deterioration in his back condition at that time. I do not accept he would have ceased work then if not for the licence issue resulting in termination of his employment. He had also been able to work for nearly two years on full time modified duties until the February 2015 mulching incident, not subject of these proceedings, following which his back condition further worsened and he required more time off work.
425 Having made these findings there is no requirement to identify, and exclude, the continuing consequences for the plaintiff of his non-compensable right shoulder and knee injuries or his significant psychiatric issues.
426 Accordingly, both applications are dismissed.
Summary of Leave
LEAVE CALCULATIONS
| LEAVE TYPE | DAYS TAKEN | TOTAL DAYS LEAVE | |||||||||||
| 2007 Annual Leave | 13 | ||||||||||||
| Personal leave (carer’s) | 1 | ||||||||||||
| Personal leave (sick) | 5.5 | 19.5 | |||||||||||
| 2008 Annual leave | 23 | ||||||||||||
| Personal leave (sick) | 18.3125 | 41.3125 | |||||||||||
| 2009 Annual leave | 3.5 | ||||||||||||
| Personal leave (sick) | 21.75 | 25.25 | |||||||||||
| 2010 Annual leave | 9 | ||||||||||||
| Family bereavement | 3 | ||||||||||||
| Personal leave (sick) | 10.3 | 22.3 | |||||||||||
| 2011 Annual leave | 27 | ||||||||||||
| Family bereavement | 1 | ||||||||||||
| Personal leave (carer’s) | 2 | ||||||||||||
| Personal leave (sick) 2012 | 18.25 | 48.25 | 2012 BREAK DOWN | PRIOR TO RAMP | IN-BETWEEN INCIDENTS | POST-MOWER | |||||||
| Annual leave | 21.375 | Annual leave | 3 | 2.375 | 16 | ||||||||
| Family bereavement | 5 | Family bereavement | 5 | ||||||||||
| Long service leave | 2 | Long service leave | 1 | 1 | |||||||||
| Personal leave (sick) | 13.375 | Personal leave (sick) | 1.1875 | 10.1875 | 2 | ||||||||
| Workers compensation | 10 | 51.75 | Workers compensation | 10 | |||||||||
| 2013 | TOTAL DAYS | 10.1875 | 13.5625 | 28 | |||||||||
| Annual leave | 28.0181 | ||||||||||||
| Leave without pay | 0.7319 | ||||||||||||
| Long service leave | 8 | ||||||||||||
| Personal leave (carer’s) | 10.5625 | ||||||||||||
| Personal leave (sick) | 4.375 | 51.6875 | |||||||||||
| 2014 Annual leave | 6 | ||||||||||||
| Bereavement non-family | 1 | ||||||||||||
| Family bereavement | 0.25 | ||||||||||||
| Family / carer / leave WO pay | 0.6825 | ||||||||||||
| Injured not WC | 3 | ||||||||||||
| Long service leave | 48 | ||||||||||||
| Personal leave (carer’s) | 6.005 | ||||||||||||
| Personal leave (sick) | 12 | ||||||||||||
| Strike day | 2.375 | 79.3125 | |||||||||||
| 2015 Annual leave | 8 | ||||||||||||
| Bereavement non-family | 2 | ||||||||||||
| Injured not WC | 10 | ||||||||||||
| Personal leave (sick) | 11.8125 | 31.8125 | |||||||||||
| 2016 Annual leave | 4 | ||||||||||||
| Injured not WC | 14 | ||||||||||||
| Long service leave | 17 | ||||||||||||
| Personal leave (sick) | 19.75 | ||||||||||||
| Special leave | 7 | 61.75 | |||||||||||
Summary of Claim Payments
Ramp incident claim (15 March 2012)
Weekly payments:
Total of 35 weeks and one day over the following periods:
• 23 July to 3 August 2012
• 27 September to 3 October 2012
• 11 October to 13 November 2012
• 28 November to 7 December 2012
• 9 January to 15 February 2013
• 18 February to 28 February 2013
• 13 March to 26 July 2013
Latest medical payment: 4 December 2013 Impairment benefit / 98C: $12,199
Mulching incident claim (20 February 2015)
Weekly payments:
Total of two weeks over the following periods:
• 6 to 10 March 2015
• 11 March 2015
• 12 to 17 March 2015
• 19 to 20 March 2015
Latest medical payment: 4 August 2016
Mower incident claim (31 July 2012)
Weekly payments: nil
Latest medical payment: 2 September 2020
Summary of Certificates
| Date issued | Capacity | Period of certification | Weekly payments |
| Ramp incident 15 March 2012 | |||
| 19 March 2012 | Modified duties | 19 to 26 March 2012 | |
| " " | Unfit | 26 to 28 March 2012 | |
| " " | Modified duties | 29 to 30 March 2012 | |
| 30 March 2012 | Modified duties | 30 March to 27 April 2012 | |
| 14 May 2012 | Modified duties | 27 April to 28 May 2012 | |
| 28 May 2012 | Modified duties | 28 May to 25 June 2012 | |
| 25 June 2012 | Modified duties | 25 June to 18 July 2012 | |
| 11 July 2012 | Unfit | 11 to 15 July 2012 | |
| " " | Modified duties | 16 July to 9 August 2012 | |
| Mower incident 31 July 2012 | |||
| 1 August 2012 | Unfit | 1 to 4 August 2012 | |
| 3 August 2012 | Unfit | 23 to 25 July 2012 (back- dated) | 23 July to 3 August 2012 |
| 9 August 2012 | Modified duties | 9 August to 2 September 2012 | |
| 2 September 2012 | Modified duties | 2 September to 27 September 2012 | |
| 27 September 2012 | Modified duties | 27 September to 17 October 2012 | |
| 28 September 2012 | Unfit | 27 September to 2 October 2012 | 27 September to 3 October 2012 |
| " " | Modified duties | 3 to 5 October 2012 | |
| 10 October 2012 | Unfit | 10 to 13 October 2012 | 11 October to 13 November 2012 |
| 21 October 2012 | Unfit | 21 to 28 October 2012 | |
| 29 October 2012 | Unfit | 30 October to 5 November 2012 | |
| 5 November 2012 | Unfit | 6 to 12 November 2012 | |
| 28 November 2012 | Modified duties | 28 November to 26 December 2012 | 28 November to 7 December 2012 |
| 14 December 2012 | Unfit | 6 to 7 December 2012 | |
| " " | Alternative duties | 16 to 23 December 2012 | |
| 9 January 2013 | Unfit | 9 to 10 January 2013 | 9 January to 15 February 2013 |
| 17 January 2013 | Unfit | 15 to 23 January 2013 | |
| 30 January 2013 | Unfit | 1 to 8 February 2013 | |
| 8 February 2013 | Unfit | 9 to 16 February 2013 | |
| 28 February 2013 | Unfit | 29 January to 28 February 2013 | 18 to 28 February 2013 |
| " " | Modified duties | 1 to 8 March 2013 | |
| 13 March 2013 | Modified duties | 13 March to 10 April 2013 | 13 March to 26 July 2013 |
| 25 March 2013 | Modified duties | 25 March to 2 April 2013 | |
| 3 April 2013 | Unfit | 8 April 2013 | |
| " " | Modified duties | 3 to 17 April 2013 | |
| 19 April 2013 | Modified duties | 11 to 24 April 2013 | |
| 6 May 2013 | Modified duties | 9 to 20 May 2013 | |
| 20 May 2013 | Modified duties | 21 May to 3 June 2013 | |
| 3 June 2013 | Modified duties | 4 to 17 June 2013 | |
| 12 June 2013 | Unfit | 12 June 2013 | |
| 17 June 2013 | Alternative duties | 18 June to 1 July 2013 | |
| 1 July 2013 | Alternative duties | 2 to 15 July 2013 | |
| 15 July 2013 | Alternative duties | 16 to 21 July 2013 | |
| 19 July 2013 | Unfit | 18 to 19 July 2013 | |
| " " | Alternative duties | 22 July to 5 August 2013 | |
| 12 September 2013 | Alternative duties | 27 August to 17 September 2013 | |
| " " | Unfit | 12 September 2013 | |
| 4 October 2013 | Modified duties | 18 September to 7 October 2013 | |
| 7 October 2013 | Modified duties | 8 to 21 October 2013 | |
| 23 October 2013 | Modified duties | 22 October to 4 November 2013 | |
| " " | Modified duties | 22 to 23 October 2013 | |
| " " | Normal duties from | 24 October 2013 | |
| Mulching incident 20 February 2015 | |||
| 4 March 2015 | Unfit | 23 February to 11 March 2015 | |
| 3 March 2015 | Suitable employment | 3 to 10 March 2015 | |
| 6 March 2015 | Modified duties | 11 to 17 March 2015 | 6 to 17 March 2015 |
| 12 March 2015 | Unfit | 12 to 19 March 2015 | |
| 19 March 2015 | Unfit | 19 to 20 March 2015 | 19 to 20 March 2015 |
| " " | Suitable employment | 23 to 27 March 2015 | |
| 1 April 2015 | Normal duties from | 30 March 2015 | |
| 8 May 2015 | Unfit | 6 to 11 May 2015 | |
| " " | Suitable employment | 11 to 18 May 2015 | |
| 23 September 2015 | Unfit | 17 to 29 September 2015 | |
| 30 November 2015 | Unfit | 25 to 27 November 2015 | |
| " " | Suitable employment | 27 November to 5 December 2015 | |
| 8 January 2016 | Unfit | 7 to 10 January 2016 | |
| 11 January 2016 | Unfit | 11 to 13 January 2016 | |
| 13 January 2016 | Unfit | 14 to 17 January 2016 | |
| 10 February 2016 | Unfit | 9 to 15 February 2016 | |
| 11 March 2016 | Unfit | 11 to 18 March 2016 | |
| 27 April 2016 | Unfit | 27 to 29 April 2016 | |
| 1 June 2016 | Unfit | 1 to 2 June 2016 | |
| " " | Suitable employment from | 2 June 2016 | |
0
6
0