Clemens v Fosters Australia (WorkCover)

[2008] VMC 20

IN THE MAGISTRATES’ COURT OF VICTORIA

AT MELBOURNE

WORKCOVER DIVISION

W01883537

B E T W E E N

DAVID CLEMENS

Plaintiff

-and –

FOSTERS AUSTRALIA PTY LTD

Defendant

MAGISTRATE:   B.R. Wright


WHERE HEARD:   Melbourne


DATE OF DECISION:   11 July 2008

MEDIUM NEUTRAL CITATION:                 [2008] VMC020

APPEARANCES

Mr. Clemens appeared in person.
Mr. I. McDonald (instructed by Wisewoulds) appeared for the Defendant.

REASONS FOR DECISION

Accident compensation – “Table of maims” lump sum - Rejection of claim for impairment to back or spine – Denial of injury - Whether no liability to pay because of earlier award of damages – Whether no entitlement because of earlier lump sum claim – Assessment of “otherwise entitled” compensation – Accident Compensation Act ss.98,103(9),103a & ss.98(5),135(4)(a) (in reprint no.2)

HIS HONOUR

Mr Clemens, who appeared in person, seeks compensation pursuant to s.98 of the Accident Compensation Act (“the Act”) for "total" permanent impairment of his "Thoracolumbar/lumbar spinal regions" as a result of an incident on 11 November 1987 when he was struck by a forklift (“the incident”).

He was adamant that he was not claiming for pain and suffering despite my suggestion that he was entitled to make such a claim. He apparently believed the reference to pain and suffering was for common law damages.

Pursuant to s.98(5) of the Act as it existed at the time of the incident I must consider as part of any award under s.98 an allowance for "other non-pecuniary loss" which will include pain and suffering and loss of amenities of life (see, VWA v. Taylor (1995) VACR 73-412, per Byrne J. in the Supreme Court).

At all times Mr Clemens has prepared and lodged all claims and documents himself, as is his right. He proceeded before me to argue his own case mainly citing the provisions set out in the most recent Reprint of the Act. This was sometimes to the detriment of his own case as can be seen from the reference to "pain and suffering" above.

I tried, with limited effect, to explain to him that a number of aspects relating to his claim, including entitlement, assessment and benefit rates, depended on the provisions of the Act as it existed at the time of his injury. It was important to ensure that he directed his arguments and evidence to the relevant legislation.

The Act has been reprinted with significant amendments 15 times since 1985.  It contains many extremely difficult provisions, applicable both retrospectively and prospectively, that require an comprehensive understanding of all amendments to the Act since 1985. Those provisions have perplexed many magistrates and judges in this State since 1985.

It is difficult enough for an experienced lawyer in the workers compensation jurisdiction to keep up with the provisions of the Act. Those difficulties are compounded for any lay person preparing, issuing and proceeding with his or her own case, even if he or she has some familiarity with the Act, as is the case with Mr Clemens.

I have proceeded to determine this proceeding in accordance with the relevant provisions as set out below.

Turning now to the facts of this case I will briefly summarise those facts to the extent they are relevant to the matters I must decide.

The plaintiff is now aged 50 years old.  He was employed as a distribution clerk by Fosters Australia Pty Ltd or its predecessor (“Fosters”) at its Abbotsford branch from about July 1978 to May 1991.  Over that time he had a number of injuries mainly involving his left knee, including but not limited to 12 November 1984, 17 July 1987 and 11 November 1987.  Those incidents were the subject of common law proceedings issued in the County Court.  Judgment was entered for $114,000 damages on
14 October 1992.

It would appear over the years the plaintiff has engaged in extensive litigation mainly regarding the left knee and its alleged sequelae (e.g. see, Clements-Black v. Heath Workers Compensation, County Court Victoria, Judge Williams, unreported, delivered 1 April 1996).  He is still in receipt of weekly payments, for the left knee injury at least.

Despite this long history Fosters pleaded a denial of the incident at all in the Defence in this proceeding, without proper justification in my view.

Mr. Clemens says that he was struck by a forklift to the left upper back and ankle in the incident and was pushed forward some distance.  He says that he injured his back and left knee in that incident.

He tendered an accident report as to the incident. More importantly he tendered a record of the first aid treatment at Foster’s medical centre on the same date, which refers to left leg and left upper back, which he described in court was to the left side of his mid spine.

As stated he has undergone extensive surgery over the years on the left knee.  He tendered a number of medical reports with the agreement of Fosters.  Those reports are set out as follows:-

Mr David Rosengarten            8 November 1993.

Mr Hugh Weaver   26 March 1998

Mr Kevin King   8 November 1993

Mr Ian Jones   5 March 2007

Medical Panel Opinion 17 January 2006 (and part of its Reasons for Opinion)

MRI reports   4 October 2007 & 2 May 2007

The reports of Mr. Weaver and Mr. Jones were obtained by Fosters for earlier proceedings or for these proceedings. The other reports were obtained on behalf of the plaintiff by his previous solicitors.

The proceedings before this court arise out of a s.98 claim dated 6 June 2006 specifically claiming an injury affecting the back and permanent disability being “11% Thoracolumbar Spine” as a result of the incident.

The claim was rejected by Notice stated 14 March 2007. Amongst other things, one of the grounds set out was an allegation that although this was the first s.98 claim relating to his "lumbar spine", there had been other previous s.98 claims in respect of events including the incident on 11 November 1987.

This allegation was one of the main defences in this proceeding.

On 3 March 2008 another magistrate, Mr Lauritsen DCM, ruled on an application by Fosters to strike out Mr. Clemens’ case. He found Mr. Clemens was not estopped from proceeding with this proceeding because of the judgment for damages on 14 October 1992 pursuant to s.135(4)(a) of the Act as it existed at that time (see Reprint No. 2 of the Act), or alternatively on the basis of the "once and for all" damages rule.

I note that the Statement of Claim in those earlier County Court proceedings did not refer to any back injury at all, including the incident on 11 November 1987.  I make no further comment as to the ruling by Mr Lauritsen DCM.

A further defence in this matter relating to s.104(11A) is not relevant to the liability issue, and only goes to the question of legal costs.

However, Fosters maintains its defence pursuant to s.103(9) and 103A of the Act. Substantially that defence is based on a claim form dated 16 November 2004 claiming lump sum compensation for the left leg as a result of four incidents between the 1984 and 1990, including specifically the incident on 11 November 1987 as well as an alleged incident on 16 August 1990 which was not apparently pleaded in the earlier County Court proceedings.

Mr Clemens agreed that it was his claim form and signed by him. He specifically agreed that he sought compensation pursuant to s.98 at that time (i.e. 16 November 2004), at least in part. Because of the date of the injuries referred to therein, the claimed lump sum compensation could only have been pursuant to s.98 and not s.98C/E as those provisions were not in existence as at the date of the incident.

I say this because that at times Mr. Clemens in using the recent Reprints of the Act, has referred to his claims pursuant to s.98C or 98E. However, he ceased employment with Fosters many years prior to their introduction in 1997.

In any event he proceeded with that lump sum claim form dated 16 November 2004 in issuing proceedings in the County Court together with what he said was a dispute on a s.116 settlement and a claim for weekly payments for the knee at least. 

He said that these proceedings were settled by agreement on about 28 February 2006 on the basis that he received weekly payments (which he still does receive).

Prior to the settlement of those proceedings Mr. Clemens obtained an Opinion from a Medical Panel dated 17 January 2006 (“the Opinion”). As part of that Opinion the Medical Panel found Mr. Clemens had a chronic lumbar spine dysfunction relevant to the alleged back injury and that the lumbar spine condition was still materially contributed to by his injury (which was agreed by Counsel for Fosters to be the injury on 11 November 1987). It further found that he still had an 18% whole person impairment pursuant to the AMA Guides (2^nd edition) (“the Guides”)“for injuries to the left leg (including the knee and back)”.

When I pointed out to Counsel for Fosters that it was not clear from this Opinion what impairment flowed from the back alone it was agreed that I have access to that relevant part of the Reasons for the Opinion to clear up that ambiguity (see Lianos v. Inner and Eastern [2001] 3 VR 136, 143).

Those reasons showed an 11% whole person impairment referable to the "thoracolumbar" spine being 5 per cent for loss of flexion and 2 per cent each for loss of left lateral flexion together with left and right rotation.

It was Mr Clemens' main argument that only after receipt of that Opinion that he knew he had the right to claim lump sum compensation for his back, which he mistakenly said was pursuant to s.98C/E. As stated any claim was pursuant to s.98, if at all, as set out in this Complaint.

The main defence before me (apart from the denial of injury to the back in the incident) was pursuant to s.103(9) and s.103A of the Act. It says that Mr Clemens should have included a claim for permanent impairment to the back (or spine) in his claim form of 16 November 2004 pursuant to s.103(9). Further, it said that having failed to do so he was not entitled to now make such a s.98 claim for the back (or spine) pursuant to s.103A.

Again Mr Clemens focussed on the Opinion as first establishing his right to claim lump sum compensation for the back (or spine).

However, that is not the relevant "test" in s.103A as to allow a worker to make a second or subsequent s.98 claim.

He had previously issued a s.98 claim for the left leg and knee which ultimately proceeded to the door of the County Court. There was no claim therein for injury to the back. Thus, prima face he is estopped from proceeding with this present claim for impairment to the back (or spine) unless he comes within the qualifying provisions in s.103A. He is more than 18 years old and clearly has no (and makes no claim of) incapacity or incapability of managing his affairs pursuant to s.103A(3)(b).

There was an argument by him that his back (or spine) injury had not stabilised as at 2004 (some 17 years after the claimed injury date). He said that it did not stabilise prior to being examined by the Medical Panel in January 2006. In any event, this is irrelevant in that it was common that the 2004 claim was not accompanied by a written statement as contemplated by s.103A(b)(ii).

He says that the back (or spine) injury was not "manifest" as at 16 November 2004, as he did not have the Opinion until 14 months later.

"Manifest" is defined by the Oxford Dictionary of English in referring to an ailment as "becomes apparent through the appearance of symptoms".

As set out above, he first complained of back symptoms at Fosters’ medical centre on the day of the incident.

Mr Rosengarten has a history of back injury (and resultant and continuing symptoms) to the back in his report of 8 November 1993.  Mr King in his report of
8 November 1993 has also taken a history of injury to the low back in the and proceeded to examine his back.

In his report dated 26 March 1998 (in an apparent
re-examination report) Mr. Clemens complains to
Mr Weaver of continuing pain in his low back and his back was assessed by Mr. Weaver. 

On any view of the material, medical and otherwise, the fact of the back injury had been manifest as at least 16 November 2004 and in fact for many years beforehand.

Mr. Clemens may not have been aware of s.103(9) and s.103A when he submitted his claim form of 16 November 2004. Even if that was the case, unlike s.102(7) of the Act, "ignorance or mistake" is not enough to avoid the consequence of a failure to comply with s.103(9) and s.103A. In his final submissions Mr Clemens did not dispute that his back injury was manifest as at 2004 in any event.

Mr Clemens says that I should have regard to s.3(g) of the Act which is one of the "Objects of the Act". He says that I should have flexibility and have regard to the disparity of the work situation in my consideration especially of s.103A.

However, I find that the provisions of s.103A are clear and unambiguous and thus s.35(a) of the Interpretation of Legislation Act does not assist.  In any event, resort to the Objects cannot bring forth a power which is not articulated (see AC Towing v. Combined Motor Industries Pty Ltd [1987] VR 529, 559).

Thus, I find it that he is not entitled to any lump sum compensation pursuant to s.98 for impairment to the back (or spine) to which he would otherwise be entitled pursuant to s.103A of the Act.

Despite my decision pursuant to s.103A, I will go on to consider whether he would otherwise be entitled to a s.98 lump sum.

Mr Clemens argued mainly on the basis of the Opinion that he had "total" impairment of the spine because of its finding that he was totally incapacitated. Thus he argued that he was entitled to the full maximum figure set out in the most recent reprints of the Act for "Quadriplegia, paraplegia or total impairment of the spine".

For reasons I will discuss shortly, any continuing injury he may have is to the lumbar spine, does not now involve the thoracic spine and never did involve the cervical spine.  Any permanent impairment should be assessed as to whether there is permanent impairment to the back, with its consequential parameters or quantum as they existed as at 11 November 1987.

Any impairment he may have, despite s.98(4) should not be seen as proportional to "Quadriplegia, paraplegia or total impairment of the spine".

Mr Clemens said at the very least he has an
11% whole person impairment as found by the Medical Panel in its Opinion and the relevant part of the Reasons.

However, the figure according to the Guides is only relevant for quantification of injuries after 11 November 1997.  In the case of injuries occurring in November 1987 it is necessary for there to be an empirical percentage assessment of impairment to the back pursuant to the provisions of s.98 (including s.98(5) as it existed at that date), applying the well established principles set out in such cases as Community Services Victoria v. Bradbury [1999] VSC 32 and in the cases referred to therein, especially at paragraphs 21-35.

The Medical Panel Opinion in this case is relevant in that the applicable part of the Opinion says that
Mr Clemens has a whole person impairment totalling 11% due to the back based on a loss of range of motion to four separate spinal functions as described above.

Despite the submission of Counsel for Fosters, I find that my decision must at least be consistent with that Opinion and that in making any variation therefrom, a court must be very careful as to the nature and extent of the difference (see Ajinvan Pty Ltd v. Fry [2001] 3 VR 644, 650).

Of course, loss of range of any spinal motion is merely one element for consideration of any empirical percentage loss of impairment.  A worker may have no loss of range of motion and still have a considerable empirical percentage loss of impairment, for example because of pain.  Equally, there may be loss of range of motion not giving rise to any empirical loss of impairment taking in count all of the principles set out in Bradbury (supra).  Every case (and every worker) is different.

Thus, I do not believe that even if I adopt and apply an 11% whole person impairment figure pursuant to the Guides found by the Medical Panel that this necessarily leads to a specific finding of an empirical percentage loss of impairment to the back, either of that amount or of any other amount.

I must therefore consider Mr Clemens's evidence and the medical evidence before me.

Despite my questions to clarify the basis of his claim, he gave very limited, vague and general evidence of his symptoms and restrictions.  He said that at times he has difficulty in standing and must slouch against a wall.  He said he gets pain to the lumbar spine above and below the belt line to the left side of the spine, which restricts his movement and is worse in winter.

He said that he cannot bend forwards, cannot bend the spine and must grab something to bend forwards.  Although there was a finding by the Medical Panel as to some restricted flexion, his movements in court demonstrated almost no flexion in his back at all.

He was adamant on several occasions that he had no pain and suffering at all, though he seemed to believe I was asking him about pain and suffering damages.

Again, he emphasised that he has never had any treatment for his spine over the years, by medication, physiotherapy and otherwise.  He said that there was nothing any doctor could do for his back.  He says that he has taken paracetamol, though this seems to be more for his left leg injury.

Later he said that he sometimes spends three to four days in bed because of his back and cannot dance or play golf.  He says his physical activities are restricted by a combination of his back and his leg.  He said that he is a virtual recluse and only comes out of home if required for the purpose of his legal proceedings.

He admitted to a very serious motor vehicle accident when he was struck by a car in about August 1999, but denied any back involvement in that accident.  I am unable to make any finding in that regard as it is not referred to in any medical material before me.

I had considerable difficulty in accepting the severity of his reported pain, symptoms, restrictions or difficulties insofar as his back is concerned.

Mr Clemens did not supply any roughly contemporaneous medical evidence (save for the medical centre records extract for the date of injury), any medical evidence relating to the period prior to the finalisation of his common law case in October 1992 as well as any medical reports from any treating doctors whatsoever.

In fact on 19 May 2008 Mr Clemens had forwarded to the solicitors for Fosters five medical reports from his treating general practitioner, Dr Tunaley, who had treated him for many years, according to Mr. Clemens.

He specifically refused to allow those reports to be tendered and I did not read those reports at all.  He stated in his final address he did this because
"Dr Tunaley had not prepared a report on that incident”  (i.e. 11 November 1987).

I pointed out to Mr Clemens the relevance of the decision in Jones v. Dunkel 101 CLR 298 and asked him whether he was submitting any material or calling any evidence from his treating doctors. He was adamant that he would not call or tender any evidence beyond that I have set out at the start of this decision.

Counsel for Fosters cited the decision in Jones v. Dunkel in his closing submissions.  However, I find that a court should be very careful in relying on the decision in Jones v. Dunkel in a case involving any unrepresented litigant and I am reluctant to draw any inferences referred to in that case in this particular proceeding.

Despite this, at the very least I have no treating medical evidence whatsoever to satisfy me on the required onus as to any permanent impairment to the back.

Mr Clemens tendered four actual medical reports, which the defendant agreed could go in to evidence.  Those reports relate to his medical condition, mainly to his left knee, after finalisation of his common law claim in October 1992.

Mr King and Mr Rosengarten had in fact examined him at the request of his then solicitors and Mr Weaver and more recently Mr Jones examined him on behalf of the Fosters or the Victorian WorkCover Authority.

Mr Rosengarten found a full range of painless movement in the thoracolumbar spine without any spasm, pain or tenderness.  He thought that Mr Clemens had chronic intermittent back pain since the incident.

Mr King in November 1993 took a history of back involvement in the incident, moderate limitation of back movement by apparent spasm and discomfort (apparently two thirds of normal movement).  He made no further reference to the back, probably because the knee aspect was the primary issue before him.

Mr Weaver in his report of 28 March 1998 said there was little reason to believe that Mr Clemens was necessarily suffering from a substantial low back problem as such, though he found limitations in flexion and extension of the lumbar spine.

Finally, there is the report of Mr Jones who examined him some 19 years after the incident.  He found at least a relevant 6% whole person impairment pursuant to the Guides which he equated to 15% industrial loss of use of the back. I am not bound to accept as conclusive, and do not accept, that assessment for the reasons set out in this decision.

Mr. Weaver related his assessments to age related degenerative disease rather than from any work related injury to his back.  This would appear contrary to the medical panel opinion.

There appears nothing of great significance in this man's spine as seen in both MRI reports having regard to his age.

Even the Medical Panel was only prepared to state that he had "chronic lumbar spine dysfunction" (emphasis added) relevant to the alleged back injury.

In all the assessments pursuant to the Guides that I have referred to, the most significant finding by far is the loss of flexion in his lumbar spine.

Mr Clemens was employed as a distribution clerk with Fosters, albeit with some walking around and climbing up and down trucks at times.  Prior to that he had apparently worked as a clerk in the Commonwealth Public Service for some years.

In all the circumstances, I am not satisfied that he would have any more than a minor permanent impairment to the back for industrial purposes, even based on the medical panel assessment of 11% whole person impairment consequential on the examination of his thoracolumbar spine pursuant to the Guides.

I have no medical material from any treating doctors whatsoever or any medical reports or evidence based on medical examinations within six years of the incident.  I note the comments in the tendered medical reports as to his psychological factors.  I found it difficult to accept the stated degree of his complaints, symptoms and restrictions of movement in the witness box.

In fact without the Opinion I would have had difficulty in making any award of compensation for permanent partial impairment to the back at all.

On all the evidence before me he has more than a minor restricted range of flexion to the thoracolumbar spine being equivalent to 5% whole person impairment as set out in the Opinion, 6% in Mr Weaver's report and 5% in Mr Jones's report.

In addition, the Medical Panel found other less severe restrictions of other spinal movements that I have set out above.

Such restrictions, especially the loss of flexion, would cause some difficulties in his occupation as a distribution clerk in the yard, for example in at least getting up and down trucks.  He would have consequential restrictions in bending and lifting with the presence of some pain.
                   Also, I must direct my mind separately to a consideration of pain and suffering and loss of enjoyment of life suffered as a result of the injury.  I have already set out the very limited evidence of Mr Clemens in that regard.

Again, I have difficulty in accepting the stated severity of his back symptoms especially in comparison with his knee problems.  It is hard not to draw an inference that in looking at the three reports of Drs Rosengarten, King and Weaver any back problems were minor and only mentioned in passing in comparison with his knee problems.

For all the reasons I have set out above, if not for my findings as to the applicability of s.103A I would otherwise have found a 10% permanent partial impairment to the back on considering separately the issues of impairment for industrial purposes as well as the separate issue of pain and suffering and loss of enjoyment of life as a result of the injury, both aspects being in approximately a 50/50 proportion towards the ultimate finding of 10% permanent partial impairment to the back.

Such a total 10% permanent partial impairment would have equated to an amount of $4237 on the “Table of Maims’ appended to s.98 as at the date of the incident.

However, in view of my finding pursuant to s.103A this proceeding must be dismissed.

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