Collis v Victorian WorkCover Authority
[2021] VCC 60
•9 February 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-00067
| TIMOTHY JOHN COLLIS | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 January 2021 | |
DATE OF JUDGMENT: | 9 February 2021 | |
CASE MAY BE CITED AS: | Collis v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 60 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – aggravation injury – pain and suffering consequences
Legislation Cited: Accident Compensation Act 1985 (Vic) s134AB
Cases Cited:Johns v Oaktech Pty Ltd [2020] VSCA 10; Nikolic v Transport Accident Commission [2020] VSCA 148; Petkovski v Galletti [1994] 1 VR 436
Judgment: Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram QC with Mr P Johnstone | Arnold Thomas & Becker |
| For the Defendant | Mr J L Batten | Russell Kennedy |
HIS HONOUR:
Introduction and a brief chronology
1The plaintiff in this proceeding, Mr Timothy Collis, is now thirty-three years of age. Born in New Zealand, he moved to live in Australia in 2011. He is in a long-term relationship and has a four-year-old daughter. He is currently employed in a predominantly sales/managerial role for a company that, among other things, sells sandblasting and spray-painting equipment.
2From approximately ten years of age, Mr Collis trained and participated in various mixed martial arts. He describes training and participating in mixed martial arts as something that he “used to love”.[1] In the course of his affidavit and oral evidence, there were references made to various forms of martial arts in which he has trained or has familiarity. Reference was made to Jujitsu, Wing Chun, Thai Chi, Bagua, Filipino Kai and Muay Thai. Mr Collis’ ongoing involvement and level of activity in martial arts is ‘front and centre’ in this application.
[1]Plaintiff’s affidavit, sworn 24 July 2019, paragraphs [42] and [45], at Plaintiff’s Court Book (“PCB”) 15-16
3As at January 2013, Mr Collis was employed with Beaurepaires as a tyre fitter. On 7 January 2013,[2] he developed low back pain working at Beaurepaires. He had a short period of time off work. He returned to normal duties and was symptom free. In February 2013, he left Beaurepaires and obtained similar employment with Victoria Wide Tyre Services Pty Ltd (“Victoria Wide Tyre Services”).
[2]PCB 3
4Before commencing employment with Victoria Wide Tyre Services, he had been referred for a CT scan of his lumbar spine. That scan was reported on 16 January 2013 as revealing “mild multilevel chronic degenerative disc disease. At L4/5, a disc bulge produces mild indentation of the theca.”[3]
[3]PCB 51
5Mr Collis was then working for Victoria Wide Tyre Services on 29 April 2013 when he suffered a further episode of back pain, this time while lifting tyres at a customer’s premises in Laverton (“the incident”).
6On 6 June 2013, Mr Collis completed and lodged a WorkCover claim for compensation[4] in respect to the incident, in which he gave the date of injury as 28 April 2013. He repeats that date of injury in his first affidavit, sworn 24 July 2019. The parties agree that 28 April 2013 was a Sunday. He did not work that day. When nominating 28 April 2013 as the date of injury, he was mistaken. Ultimately not much turns on that - other than to highlight that Mr Collis’ accuracy as a witness is at times open to question – because the defendant accepts that for the purpose of this serious injury application, “some incident or some event occurred in late April 2013 which precipitated symptoms in the workplace and a period of incapacity”.[5]
[4]Defendant’s Court Book (“DCB”) page 14
[5]Transcript (“T”) 2, Lines (“L”) 7-9
7Following the incident, Mr Collis completed his day’s work. The next day, 30 April 2013, he worked until approximately lunchtime. He then reported lower back pain to his employer, who referred him to the Kealba Family Medical Practice, which he attended early that afternoon. Initial treatment included time off work, physiotherapy and then a referral to the orthopaedic surgeon, Mr Justin Hunt.
8Mr Hunt examined Mr Collis in July 2013. By that stage, Mr Collis had undergone a further CT scan. The report of that scan dated 15 May 2013 concludes:
“1. Mild to moderate 1.4/5 lumbar canal stenosis secondary to a central L4/5 disc prolapse. ? bilateral L5 nerve root impingement. MRI of the lumbar spine recommended.
2. Minor L2/3 and L3/4 lumbar canal stenosis secondary to diffuse disc bulge at both levels.”[6]
[6]PCB 52
9Mr Hunt obtained a history from Mr Collis that he was very fit, doing martial art training regularly, but five weeks ago had increasing pain in his back and leg. Mr Hunt, in a letter to the general practitioner, said that the injury “clearly relates to the lifting, bending and twisting that he has been doing as part of his work”.[7] On clinical examination, Mr Hunt was able to reproduce leg radicular pain symptoms on the left side. Mr Hunt assessed Mr Collis as having an acute episode of disc prolapse with lower back and leg pain relating to the work and recommended an MRI scan.
[7]PCB 30
10Mr Collis was reviewed by Mr Hunt for a further and final time on 17 September 2013 at which time he reviewed the results of the MRI scan. By letter dated 17 September 2013 Mr Hunt reported to the general practitioner that the MRI scan revealed “significant disc degenerative change involving L4-5 motion segment”.[8] Mr Hunt also noted a transitional vertebral motion segment at L5-S1 and that the disc above was broad-based and somewhat bulging. Mr Hunt says he explained those changes to Mr Collis and that while the right sided prominent disc bulge did not tie in with his symptoms, he was sure Mr Collis was getting some irritation on the right side at the L5 nerve root, at what is the L4-5 motion segment, and which was responsible for right leg pain symptoms. Mr Hunt records that he advised Mr Collis that the natural history of the condition was probable improvement. He made no further arrangement to see Mr Collis.[9]
[8]PCB 34
[9]PCB 34
11By the time he attended Mr Hunt, Mr Collis had commenced physiotherapy treatment at Sunbury Physiotherapy. That treatment continued through until November 2013.[10] Mr Collis then ceased any physiotherapy attendances/treatment – and did not attend a GP - for low back symptoms until October 2018. Since then, he has had limited physiotherapy treatment and GP attendances for low back symptoms.
[10]T21, L19
12Notwithstanding the relative lack of treatment, Mr Collis claims to have been plagued by ongoing, fluctuating back and left leg pain since the incident.[11] He claims to have required regular use of painkillers such as Panadol and Nurofen. He claims to be limited in a range of domestic and recreational activities, with particular limitation for martial arts.
[11]Affidavit of Mr Collis sworn 18 January 2021 PCB 19-22.
13Pausing. This is a “serious injury” application brought pursuant to s.134AB(16) of the Accident Compensation Act 1985 (Vic) in respect to a workplace injury. The principles in respect to such an application are well known and are not in dispute. Mr Collis alleges that he has suffered a permanent serious impairment or loss of a body function, namely an injury to the lumbar spine. He seeks leave to commence a proceeding for pain and suffering damages. As already mentioned, he places emphasis on the fact that he had a very long-term interest in martial arts which has been quite circumscribed because of the claimed back injury.[12]
[12]T4-5
14Focusing on the injury claimed to have been suffered in the incident, Mr Collis, via his Counsel, says that the incident caused him to suffer the aggravation of underlying lumbar degenerative change with further disc injury productive of left leg symptoms. He says that he continues to suffer the effects of that ‘aggravation’ injury.
15Also as previously mentioned, the defendant for the purposes of this application, accepts that Mr Collis suffered some incident at work which precipitated symptoms. The defendant disputes that any incident led to any permanent injury as such.
The credit of the Plaintiff
16In cases of the present kind, the credit of the plaintiff will often be critically important.[13] In this application there is no real attack on the credit of Mr Collis, save that he himself accepts a hazy memory. Some matters of history as deposed to by him are clearly wrong, such as the date of injury. My impression of him in the witness box was of a man who was candid and forthright, but with a vague recollection of events since the incident, perhaps due to the passage of time. He made appropriate concessions. Despite some mistakes in what he has deposed to, I am satisfied that I can rely upon him as a witness of truth.
[13]Johns v Oaktech Pty Ltd [2020] VSCA 10 at paragraph [76]
The evidence of treating practitioners
17In the introduction and chronology I dealt with some of the medical material from treating practitioners. It is convenient to complete a review of the treating material for the purposes of identification of compensable injury by firstly noting that Mr Hunt did not obtain a history of the incident at Beaurepaires. Secondly, Mr Hunt does not appear to have had access to the CT scan report of 16 January 2013. As at September 2013, Mr Hunt records right leg symptoms.[14] This is inconsistent with Mr Collis describing left leg symptoms. Ultimately his reports are of little assistance on the issue of the identification of compensable injury referable solely to the incident.
[14]PCB 34
18There is a short report from a physiotherapist, Mr Damon Cheng, dated 31 May 2013, to the treating general practitioner.[15] Mr Cheng records that straight leg raising reproduced left leg and back symptoms and that Mr Collis was tender at L4-5. There is a letter from Dr Musantharubi Govender, dated 12 July 2013,[16] which notes that Mr Collis was being treated for a lower back injury. The letter otherwise relates to a request for gym and pool funding.
[15]PCB 26
[16]PCB 29
19Next, there is a letter from Sunbury Physiotherapy (Ms Michelle Tanner) to a Dr Adel Hipolito, at the Gap Road Medical Clinic, dated 12 October 2018.[17] Ms Tanner reports a referral for “a recent L3/4 disc flare-up of pain over the past 3-5 weeks”.[18] She records a history that Mr Collis is a service technician “which involves heavy lifting and does mixed Martial Arts which involves many hours of daily training”.[19] The physiotherapist describes the intended treatment program to assist him to manage his flare-ups better long term. Her report does not, however, add much to a discussion about identification of any back injury suffered in the incident (or any ongoing impairment consequences), other than the need for physiotherapy treatment at that time.
[17]PCB 36
[18]PCB 36
[19]PCB 36
20Next, is a letter from a Dr Peter Bakhoum, at the Gap Road Medical Centre, dated 30 June 2019.[20] Dr Bakhoum simply states that Mr Collis is suffering “lower back pain’” due to old work-related injury and that he needs further access to treatment.
[20]PCB 37
21Apart from the radiology reports, which I shall discuss in due course, that is the extent of any material from treating practitioners. It is limited and of very little assistance on the key issues of identification of compensable injury or impairment and consequences.
The evidence of medico-legal practitioners
22Mr Collis was seen for medico-legal purposes by Mr Thomas Kossmann, an orthopaedic surgeon. Mr Kossmann produced a report dated 6 May 2020.[21] He obtained a history of Mr Collis suffering injury at Beaurepaires and of the first CT scan. Mr Kossmann took a history of the lifting incident on 28 (sic) April 2013 and of the referral for a further CT scan, conservative treatment, assessment by Mr Hunt and the MRI scan. Under the heading of Causation, Mr Kossmann states:
“Mr Collis suffered an injury to his lumbar spine on 7 January 2013, when he was working for Beaurepaires, while lifting a tyre. He recovered and then suffered an aggravation of his lumbar spine condition in a second accident on 28 April 2013, whilst working for Victoria Wide Tyre Service. Mr Collis continues to suffer from flare-ups in his lumbar spine from time-to time (sic), for which he undertakes conservative treatment … .”[22]
[21]PCB 39
[22]PCB 44
23Mr Kossmann stated that Mr Collis’ condition was not stable, and he recommended further investigations. Mr Kossmann then provided a further report dated 3 January 2021,[23] after he was provided with the report of an MRI scan dated 28 August 2020 and a GP Management Plan dated 14 November 2020. Having reviewed that material, he simply confirmed that the injuries were stable.
[23]PCB 49
24Mr Kossmann, in his one comprehensive report, describes the injury in April 2013 as an aggravation of Mr Collis’s lumbar spine condition. Perhaps it can be inferred that the consequences discussed in his report are to be ascribed to that aggravation, but it is notable that Mr Kossmann does not specifically ascribe the ongoing symptoms to the described aggravation injury. Likewise, Mr Kossmann does not attempt to describe the extent of aggravation. He notes ‘flare-ups’ from time to time. He does not say whether those flare-ups are due to the underlying condition or the ‘aggravation’ of the lumbar spine condition suffered in the incident.
25Turning then to the medical reports obtained by the defendant, Mr Collis was examined Dr David Barton, an occupational physician. Dr Barton produced a report dated 22 October 2013.[24] Dr Barton’s report is predominantly an assessment of the workplace for the purposes of a return to work.
[24]DCB 63
26Mr Collis was examined by Dr Graeme Doig, an orthopaedic surgeon, on 17 May 2019. In a report dated 14 June 2019,[25] Mr Doig diagnosed a soft-tissue injury with a possible disc prolapse. Mr Doig’s report has several limitations. Firstly, he does not have an accurate history. He did not obtain a history of the Beaurepaires incident. Secondly, Mr Doig was only provided with limited material. He was provided with some limited claim documents and the report of Dr Barton.[26] He was not provided with any radiology (or reports of radiology) or clinical records. With those limitations, he opined that Mr Collis had a reasonable prognosis and that the clinical presentation was consistent with repetitive heavy lifting at work. Of course repetitive heavy work is a different thing to the specific incident relied on for the purposes of this application.
[25]DCB 67
[26]DCB 72
27Completing the medico-legal material, Mr Collis was examined by Associate Professor Max Esser, an orthopaedic surgeon, on 24 October 2019. In a report dated 31 October 2019,[27] Associate Professor Esser records a history of the incident at work in April 2013. He records a history of past similar episodes, but not nearly as debilitating as the episode that occurred in April 2013. Associate Professor Esser had available a range of documents, including the CT scans of January 2013 and May 2013, as well as the MRI scan and other materials.[28] Associate Professor Esser opined that Mr Collis had lumbar intervertebral disc pathology, almost certainly at L4-5, and that the incident had a significant effect. He went on to state that the work injury of 2013 was still a contributing factor to the situation.[29] In respect to compensable injury suffered in 2013, Associate Professor Esser states:
“I am unsure to the degree and extent of his related aggravation. I think he has actually retrained, and retrained his occupational skills. He is working full time. He seems to have recovered well enough to work in a completely different occupation.”[30]
[27]DCB 74
[28]DCB 77
[29]DCB 78
[30]DCB 79
28Associate Professor Esser was then asked to provide a further report, which he did on 30 July 2020. For the purposes of that further report, he was provided with clinical notes from various medical practices.[31] Having reviewed that material, he says that:
“I note that this man’s lumbar spine CT scan of the 15.01.2013 concluded there was a minor disc bulge at L3/4, and at L4/5. I note there is transitional anatomy at the L5/S1 level. Subsequent MRI scan taken later that year, confirmed a disc bulge at L4/5, which results in mild central canal and mild bilateral neural exit foraminal stenosis, with minimal posterior displacement of the emerging right L5 nerve root.
Thus, this pathology was present prior to the 12.02.2013.
I think this man had a significant episode with a previous employer. He was working as a tyre fitter for Beaurepairs (sic).
He had documentation of pain and discomfort when he had seen another practitioner, Dr Richard Lunz, who he saw on the 11.01.2013.
I note both CT scans were almost exactly the same, one taken prior to, and one taken after the 12.02.2013.
The subsequent MRI scan of 18.07.2013 confirmed a disc bulge at the L4/5 level which resulted in a mild canal and mild bilateral neural foraminal stenosis with minimal posterior displacement of the emerging L5 nerve root. I think this pathology was present prior to the 12.02.2013.”[32]
[31]DCB 80
[32]DCB 83-84
29In the further report Associate Professor Esser goes on to say that –
“Thus, I think that any episode that may have occurred on the 28.04.2013, may have caused a minor or no aggravation of a pre existing condition, disc pathology, ie. an L4/5 disc bulge, as defined by the CT scan of the 15.01.203.”[33]
[33]DCB 84
30Associate Professor Esser ultimately opines that the incident in April 2013 would “unlikely have been a significant aggravation, acceleration or exacerbation, resulting in a significant effect of deterioration of the work employment in general”.[34] He ultimately opines that Mr Collis “does not have any continuing work related aggravation as a result of the episode that occurred on the 28.04.2013.”[35]
[34]DCB 84
[35]DCB 85
31That completes a review of the medical material. To describe it as limited and of limited assistance to the resolution of the issues in this application would be something of an understatement.
32Mr Collis bears the onus to establish that the ‘aggravation injury’ is ‘serious’. Based on the evidence of the medical reports, he fails at this first hurdle. None of the medical reports sufficiently identify the extent of any aggravation, let alone the impairment and consequences from such aggravation. I shall return to this point after completion of a review of the balance of the evidence.
The evidence of Mr Collis
33Mr Collis relies on affidavits sworn by him on 24 July 2019,[36] and a further affidavit sworn 18 January 2021.[37] In addition, he relies on an affidavit of Mr Warren Mead, affirmed 19 January 2021,[38] and an affidavit of Ms Bradie Leader, sworn 20 January 2021.[39]
[36]PCB 9-17
[37]PCB 18-22
[38]PCB 23-25
[39]PCB 55-57
34Mr Collis was cross-examined in respect to the affidavit material. The cross-examination broadly focussed on two topics. The first topic was in respect to his medical history, both before and after the incident. The second topic was in respect to his involvement in martial arts.
35The cross-examination regarding medical treatment squarely challenges the evidence in his first affidavit that ―
“Since suffering my injuries in April 2013, I have experienced ongoing constant pain across my lower back. Occasionally, the pain shoots down into my left leg to my knee.”[40]
[40]PCB 14, paragraph 35
36The cross-examination in respect to medical treatment was also relevant in respect to impairment and consequences.
37Mr Collis was taken in cross-examination to various entries in medical and physiotherapy records. He accepted that his last attendance for physiotherapy in 2013 with Ms Catherine James was on or about 23 November 2013, and that by then he had returned to full-time pre-injury duties.[41] He accepted that by November 2013 he was back to doing martial arts activities, but that it was limited, although he clarified that answer by saying that in November 2013 “it would have been less limited, if that makes sense”.[42]
[41]T21, L24-29
[42]T24, L27-28
38He was cross-examined about attendances at medical clinics and that his treatment from GPs for low back symptoms initially ceased in late November 2013. He accepted that if there are no entries in medical records, then it is “not there”.[43] He then described his condition as “bit of a roller coaster”[44] and said that from time to time, he had flare-ups of low back pain.[45]
[43]T26, L6
[44]T26, L9
[45]T26, L13-15
39Mr Collis accepted that he next returned to physiotherapy on or about 12 October 2018 at Gisborne Physiotherapy with Ms Tanner. Ms Tanner’s initial record was put to him, where she recorded that –
“5 years ago he was a truck fitter and injured his lx spine (bulging L3 and L4 discs) had MRI and CT scans and on W/C. Had physio at Gap rd and was good he got back to gym etc and did well. Intermittent since and flare-ups from time to time. Recently (past 3.5 weeks) a severe flare up of left sided and central Lx pain with spasm in left buttock. No leg pain…”.
He accepted that history as correct.[46]
[46]T27, L7-14
40In respect to the flare-up in October 2018, Mr Collis gave evidence that he could not recall a particular incident,[47] and that he had a hazy memory. Eventually, in response to a question from me, his memory was prompted and he said “I believe I might’ve been training for a fight or something at that point”.[48]
[47]T27, L19
[48]T28, L23-31
41In fact, Mr Collis had travelled with his friend, Mr Mead, to Thailand in 2018 to learn the martial art of Muay Thai, and by late 2018, had accepted a competitive fight. He obtained medical certification to participate in that fight from the Goonawarra Medical Centre in Sunbury. He agreed that Muay Thai is a form of martial arts that is highly physical.[49] in that regard, an entry from Ms Tanner in October 2018 was put to him in which she recorded that he was undertaking many hours of daily training. He responded by saying that he did not recall telling her it was many hours of daily training.[50]
[49]T34, L13
[50]T40, L16-17
42Mr Collis was cross-examined about his attendances at GP clinics and, in particular, at the Gap Road Medical Centre, and that his first attendance at that clinic was 4 September 2013; he had 20 visits at the clinic up until 5 October 2018; and “never once mentioned lower back problems”. His answer was that he did not “believe that to be the case”.[51] He was then taken to an entry in November 2018 regarding fracturing his big toe during kick boxing training on 4 November 2018.[52] It was put to him that the competitive fight did not proceed because of the fractured toe. Mr Collis said that he changed his mind about the fight.[53] He said he was training very hard at the time and was experiencing back pain. Eventually he conceded that a combination of issues, including his fractured toe, was the reason he could not take the fight.[54]
[51]T51, L19-25
[52]T52, L27-30
[53]T54, L21
[54]T55, L9
43He was cross-examined about his last attendance for physiotherapy on 25 January 2019 in which Ms Tanner recorded that his back was “up and down”, but he had not done much due to his toe and that he was then back into full training. He said that he did not recall that meeting.[55]
[55]T56, L7
44The cross-examination in respect to medical treatment ran parallel with the suggestion that effectively he had returned to full martial arts training by late 2013 and by 2018 he was training in Muay Thai at a level to contemplate a competitive fight, which was only cancelled due to fracturing his toe.
45There was cross-examination regarding Facebook entries depicting him engaging in Muay Thai training. There was further cross-examination about the frequency in which he now engages in Muay Thai training and instruction. He said that he now attends a mixed martial arts gymnasium in Yarraville. He usually attends every Saturday for the junior class, where he helps as an instructor. He usually attends after work on a Thursday and sometimes on a Tuesday as well.[56]
[56]T35, L17-21
46In re-examination, he was asked about restrictions since April 2013 and whether there had been any time since April 2013 when he had not had some restriction in his ability to do martial arts training. His answer was “no”.[57] Mr Collis said restrictions were either self-imposed – for example, trying to stop himself from pushing to a point where he injured himself - or from pain. He said that the pain is physically stopping him from going to training. In re-examination, he gave evidence about restrictions in domestic activity such as in the garden, looking after his daughter or maintaining cars.[58]
[57]T58, L2
[58]T59-60
The lay affidavit material
47Mr Collis relies on an affidavit from Mr Mead, sworn 19 January 2021.[59] Mr Mead deposes to training the plaintiff in Muay Thai from approximately early 2016. He says Mr Collis has difficulty executing various aspects of that martial art, including what he describes as activities that “would not be difficult for anyone of reasonable fitness”.[60] Mr Mead describes the trip to Thailand in early 2018 and then the events leading up to the competitive Muay Thai fight that Mr Mead had arranged, when another student “pulled out at the last minute”.[61] Mr Mead notes that he did not think the fight would be a good idea for Mr Collis. He does not, however, mention the fractured toe and whether that was a factor in the fight not proceeding. In any event, he says Mr Collis now attends at a gym with him and has begun teaching children (although I note from the Facebook material the Mr Collis also teaches adults).[62] Mr Mead says that Mr Collis undertakes limited martial art exercises, but he sees him struggling.
[59]PCB 23
[60]PCB 24
[61]PCB 24
[62]DCB 392
48Mr Collis also relies on an affidavit from his partner, Ms Leader, sworn 20 January 2021.[63] She notes she has known him for approximately seven years but did not know him at the time of the incident. They have a four-year-old daughter together. She describes her observations regarding him appearing in pain and using over-the-counter medication. She describes restrictions for daily activities such as standing and sitting, describing those activities as “limited”. She does the heavier housework and gardening because Mr Collis is “unable to cope with the physical exertions of twisting, turning and bending”.[64] He is limited in activities with their daughter. She describes her partner’s restrictions for his mixed martial arts activities and is aware of him having a high qualification in martial arts from an early age. She says:
“… Although I did not know the Plaintiff at the peak of his activities, I have seen him severely restricted in his ability to participate in mixed martial art activities and when he does participate to pay for it in terms of increased pain following such participation.”[65]
[63]PCB 55
[64]PCB 56
[65]PCB 57
49 Senior Counsel for Mr Collis noted that the lay witnesses were not required for cross-examination.[66] Obviously, as a matter of fact that is correct. Frequently it is the case in serious injury applications that lay witnesses are not required for cross-examination. That does not mean that the evidence is to be accepted without analysis. Insofar as lay witnesses make observations of Mr Collis in affidavit material, that evidence is ultimately to be assessed based on my impression of Mr Collis and his reliability as a witness.[67]
[66]T102, L1-2
[67]Nikolic v Transport Accident Commission [2020] VSCA 148 per Beach JA and T Forrest JA at paragraph [68]
50 Broadly speaking, I accept that the lay evidence confirms that Mr Collis has ongoing restrictions for day-to-day activity, and limitation or difficulty undertaking his martial arts activities. However, both the lay witnesses have limitations on the evidence they can give as they did not know Mr Collis before the incident. It is trite to say they cannot give medical evidence. Accepting the restrictions described does not equate to those restrictions as being caused by the incident and the claimed aggravation injury.
The Plaintiff’s submissions regarding compensable injury
51 Mr Collis accepts that:
“… it’s clear from the radiology that was performed as early as 15 January 2013 that the plaintiff had some underlying degenerative changes in his lumbar spine”.[68]
[68]T91, L24-27
52 Mr Collis submits that he recovered from the “Beaurepaires episode” and was asymptomatic when he commenced with Victoria Wide Tyre Services. He says that in the incident he had “sudden and severe back pain, but it extended down through his left buttock and leg”.[69] He submits that:
“… it’s quite clear that this aggravation of the underlying condition is a far more significant event than the earlier event in January 2013.”[70]
[69]T93, L7-8
[70]T93, L11-13
53 In support of the submission that the incident is “far more significant” than the earlier event, he relies upon the CT scan of 15 May 2013.[71] His Senior Counsel submits the CT scan reveals “what was a disc bulge has become a central L4-5 disc prolapse”,[72] which, it is submitted, is a distinct change from what had been shown earlier on, consistent with the evidence of increased pain, left leg symptoms and impairment following the incident.[73] He submits that the pathology itself has worsened as a result of, and as a consequence of, the incident.
[71]PCB 52
[72]T94, L17-18
[73]T97, L11
54 It is further submitted that there is evidence of referred leg symptoms after April 2013 and radiological evidence to back it up as being related to the incident.[74] The discussion on this point with Senior Counsel for Mr Collis concluded with the submission summarised as:
“… there’s clearly a radiological change that’s caused a symptomatic change that’s completely different to what had happened in January 2013, and completely different from the asymptomatic situation before that. So there’s an aggravation of underlying change that is significant.”[75]
[74]T98, L20-23
[75]T99, L22-27
55 Fundamental to Mr Collis’ submissions is an acceptance that low back symptoms have been present ever since the incident. While this is not a credit case as such, Mr Collis’ hazy memory and the inaccuracies in the history given to the doctors does impact his evidence in that regard. As an example, in the first affidavit, he says that after the incident he stayed off work for several weeks. He says: “I later started receiving treatment at the Gap Road Medical Centre as it was closer to where I was living”.[76] The inference to be drawn from that evidence is that the treatment at the Gap Road Medical Centre was relatively soon after the incident. But that treatment was not until some five years later. The affidavits do not adequately or accurately deal with the improvement in his symptoms; his return to full and unrestricted duties; or the fact that he did not require any treatment (perhaps other than self-management) for an approximately five-year period between late 2013 and late 2018.
[76]PCB 11, paragraph 13
56 The back condition has flared-up from time to time, or, as Mr Collis said, it has been a “rollercoaster”. He had stronger pain and left leg symptoms following the incident and he had previously not had left leg symptoms. The whole of the evidence, however, tends to the conclusion that those symptoms resolved, certainly by November 2013, when the physiotherapist recorded a substantial resumption of his martial arts activities and a return to full-time employment.
57 His symptoms, based on the objective evidence, appear to have settled, until a substantial flare-up in late 2018, which correlates to the training load he was undertaking in anticipation of the upcoming Muay Thai fight.
58 It is not enough that there are flare-ups of symptoms from time to time. Those flare-ups and symptoms must be related to the claimed compensable aggravation injury.
59 There is a simplicity to the way in which Mr Collis puts his submissions that at first blush has some attraction. In circumstances where he was asymptomatic at the date of the incident, it is easy to submit that he has had symptoms ever since the incident and that there is radiologically-demonstrated change to link those increased symptoms to the incident.
60 The difficulty with this simple submission is that it is not supported by the medical evidence.
61 As I have already described, Mr Kossmann does not attempt to analyse (or compare) the radiology and neither in his reports does he say that there has been a progression between the January 2013 and May 2013 CT scans which would explain the increased symptoms, or ongoing pain and impairment. At the risk of repetition, Mr Kossmann notes that Mr Collis suffered injury to his lumbar spine while working for Beaurepaires. He notes recovery and then aggravation in the incident of April 2013. Mr Kossmann says that Mr Collis continues to suffer from flare-ups in his lumbar spine from time to time. He says that Mr Collis may develop further degenerative change and increased symptoms but does not causally link any such increased symptoms to the ‘aggravation’. Despite being asked questions about diagnosis and causation, he does not specifically link the flare-ups to the claimed work-related aggravation. He does not provide a medical basis that supports the submission that the May 2013 CT scan demonstrates a clear aggravation injury on a radiological basis.
62 The only medical practitioner who has made any proper attempt to analyse the radiology is Associate Professor Esser. Again, at the risk of repetition, he says that:
“The findings on the second CT scan were almost exactly the same as the previous CT scan”.[77]
[77]DCB 83
63 On that basis, and also with the benefit of the subsequent MRI scan of 18 July 2013, Associate Professor Esser opined that the pathology was present prior to the incident.[78] Accordingly, the only medical practitioner who has made any effort to interpret the radiology does not support the submission that the radiology after the incident demonstrates an ongoing aggravation injury.
[78]DCB 84
64 Bearing in mind that Mr Collis bears the onus of proof, I conclude that the medical evidence does not demonstrate a persisting aggravation injury. Neither does it establish the extent of any aggravation, as is required.[79]
[79]Petkovski v Galletti [1994] 1 VR 436
65 That is enough to dispose of this application. Mr Collis having failed to establish ongoing compensable injury, or the extent of any aggravation injury, means that the application must fail.
66 For completeness, but even if I was to accept that Mr Collis can identify a persisting aggravation injury, I am not satisfied that such injury is a “serious injury” in the sense of producing very considerable pain and suffering consequences. At its highest, he has suffered the rollercoaster of fluctuating back and leg pain, with some interference for day-to-day activity and requiring him to limit to some extent his involvement in his main hobby of martial arts. But balanced against that, he is able to work full time. He has at times continued to undertake full time manual employment. He is still able to participate in mixed martial arts and at least when not suffering a flare-up he is able to engage at a reasonable level, namely attending a mixed martial arts gymnasium two or three times per week to train and instruct in Muay Thai. He has no hands-on treatment, and apart from over-the-counter painkillers, is not prescribed anything stronger for back or leg pain. The totality of the low back condition, upon my assessment of the evidence, might be said to produce consequences that are at times considerable, but those consequences do not, on my assessment, meet the test of “very considerable”.
67 Accordingly, the application is dismissed.
68 I will hear the parties as to the question of costs and ancillary orders.
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