Corolovski v Victorian WorkCover Authority
[2021] VCC 565
•13 May 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-01903
| STEFAN COROLOVSKI | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 and 13 April 2021 | |
DATE OF JUDGMENT: | 13 May 2021 | |
CASE MAY BE CITED AS: | Corolovski v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 565 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – impairment of the lumbar spine – psychiatric impairment – course of employment – transport accident – pain and suffering – loss of earning capacity – seriousness conceded
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)(d); Accident Compensation Act 1985; Transport Accident Act 1986; Evidence Act 2008, s128
Cases Cited:Belgrave Heights Christian School v Moore [2020] VSCA 240; Koutroulis v Transport Accident Commission [2011] VSC 159; Dordev v Cowan & Ors [2006] VSCA 254; Petkovski v Galletti [1994] 1 VR 436; Zlatevska v Consolidated Cleaning Services Pty Ltd & Anor [2006] VSCA 141
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W R Harrison QC with Ms S Bailey | Zaparas Lawyers Pty Ltd |
| For the Defendant | Ms S Manova | Lander & Rogers |
HER HONOUR:
Preliminary
1This is an application for leave to bring proceedings pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the WIRC Act”) in relation to an injury by the plaintiff suffered during the course of his employment with LC Dysons Bus Service Pty Ltd (“the employer”) from April 2013 until 17 October 2017 (“the period of employment”).[1]
2The remedy sought in the Originating Motion is a serious injury certificate for pain and suffering damages and pecuniary loss damages for injury sustained to the spine, and/or consequential psychiatric injury suffered throughout the course of employment with the employer.
3In issue is whether the correct “gateway” is being accessed by the plaintiff to obtain leave to bring proceedings for damages.[2]It was agreed that if it was accepted the plaintiff’s injury arose over the course of his employment, leave should be granted under both heads in relation to each claimed impairment. If, however, the Court found that seriousness resulted from a transport accident in 2015 and or 2017, the application must be dismissed in line with the decision of the Court of Appeal in Belgrave Heights Christian School v Diane Moore.[3]
4In Belgrave Heights, the Court stated that s134AB of the Accident Compensation Act (“the ACA”) focuses on any injury arising out of or in the course of or due to the nature of employment – which might be the whole of the employment, or some particular aspects of the employment, or some specified incident or incidents, or some gradual process injury. The focus in s93 of the Transport Accident Act (“the TAA”) is on an injury that results from a transport accident – being a specified incident directly caused by the driving of a relevant vehicle.[4]
5In Belgrave Heights, the plaintiff’s claim was essentially a gradual process injury claim. She alleged that as a result of being exposed to multiple jolts as a result of being required to drive a bus, which was unsafe by reason of its age and condition, she sustained a serious injury to her lower back. In such circumstances, the Court held that her solicitors correctly made her initial serious injury application under s134AB of the ACA.[5]
6In addition to the “gateway” issue, the defendant disputed there was any compensable injury in September 2015, attributing any back pain at that time to the plaintiff’s gardening activities. It was also submitted that both speed hump incidents were transport accidents and that any present spinal impairment was not as a result of a gradual process injury or arose during the course of the plaintiff’s employment as a bus driver.[6]
7In the present application, the plaintiff swore two affidavits and was cross-examined. He had the assistance of an interpreter. Also in evidence were medical reports and other material. I have read all the tendered material.
[1]Transcript (“T”) 7: Counsel for the plaintiff confirmed this is a course of employment case
[2]T6
[3]Belgrave Heights Christian School v Moore [2020] VSCA 240 (“Belgrave Heights”); T88
[4]Belgrave Heights (supra) at paragraph [45]
[5] (ibid) at paragraph [47]
[6]T6
The Plaintiff’s evidence
8The plaintiff is presently aged forty-seven, having been born in April 1973 in Macedonia. He first came to Australia when he was six months old. When he was five, his parents moved back to Macedonia, where he was educated to the equivalent of Year 12.
9War broke out in 1991 to 1992 and the family came back to Australia when the plaintiff was nineteen and he obtained a job as a process worker in a factory. He returned to Macedonia in 1993, where he worked in a petrol station, and married two years later.
9In 1997, he came back to Australia and worked as a machine operator job for two-and-a-half years. In 2000, he returned to Macedonia, where he lived for eleven years and worked as a maintenance technician.
10In 2011, the plaintiff came back to Australia and worked for a year at Kingdom Caravans. He commenced work with the employer as a bus driver on 29 April 2013.
11At that time, the plaintiff was based at the Reservoir depot, where the buses were mostly old Scanias and Volvos. The seats were old and were mechanically adjusted with a lever. Very often, they were very difficult to adjust and some seats were locked in place and could not be adjusted at all. Most were very rigid. The seats were air compressed, but often air compression was not working. Some seats were very hard to sit on, others were so soft you bounced around.
12The plaintiff did a variety of runs while at Reservoir, the longest was Route 561, which took an hour each day. He did that for about two years, driving five hours and fifteen minutes before he was allowed to have a break. If he worked an eight-hour shift, he was entitled to a thirty to forty-minute break. On a longer shift, he was entitled to two breaks. For the first year at Reservoir, he normally worked two twelve-hour shifts and three others that varied between seven to eight-and-a-half hours. On average, he worked about fifty hours a week. The buses changed three to four times a day.
13On 1 September 2015, the plaintiff began to experience pain and discomfort in his back. The pain came on at work as he was driving buses. He recalled he was sitting on uncomfortable seats at the time. He kept working.
14A couple of days later, on 3 September 2015, he was driving on Route 561 towards the Reservoir train station. He drove over a speedbump, while sitting on a rigid seat. As he went over the bump, he felt a jolt in his back. He was in severe pain. He was close to the depot and he drove back there, where he told his supervisor, Rob, he had pain in his back. Rob filled out an incident report. The plaintiff told him he hurt himself when he went over the speedhump.
15The plaintiff called his son, who came and picked him up. On the same day, his son took him to a general practitioner, who gave him some anti-inflammatory medication, Ibuprofen. The plaintiff went home in a lot of pain. As he was changing his clothes, he coughed and felt immediate severe pain. He lay on the floor and an ambulance was called.
16The paramedics gave him a morphine stick to put in his mouth. He was taken to Northern Hospital to Emergency. He was sent home with painkillers.
17On 5 September 2015, the plaintiff saw Dr Dzartov at Epping Plaza Medical and Dental Centre (“Epping”) who organised a CT scan. Three days later, the plaintiff saw him again and he advised the plaintiff to have physiotherapy.
18The plaintiff was off work for about a month. On 23 September 2015, he started back at work, on reduced hours, four hours a day, five days a week, doing normal duties driving buses. He was still driving four hours at a time. He did not get a break during that shift and he was driving the same buses with the same defective seats and same routes.
19There was some improvement in his back pain on 20 October 2015 and around November, he went back to working driving buses full time.
20The plaintiff attended his general practitioner for back pain on a number of occasions between 24 December 2015 and 5 January 2016. He had a heart attack while visiting Macedonia in 2016.
21On his return to Australia in August 2016, the plaintiff returned to work straight away and his back pain continued. He saw his general practitioner on 11 September 2016, who referred him to an orthopaedic surgeon. The plaintiff had not then lodged a WorkCover claim, so he was placed on a waiting list at the Austin Hospital.
22The plaintiff’s back pain continued and he saw his general practitioner again on 8 October, who suggested he see a neurosurgeon, and he was placed on a waiting list. The plaintiff kept working full time in the meantime.
23In about March or April 2017, the plaintiff was transferred to the Bundoora depot, where he continued full-time work. His back pain continued. He was driving with a back brace, though he did not tell his employer as he was scared he would lose his job.
24At Bundoora, he was driving buses along seventeen routes, as well as school routes. He was driving for five-and-a-half hours without a break, driving old Scania and Volvo buses. In addition, on school runs, he was driving a very old Mercedes Benz bus. Seats on all the old buses were uncomfortable to drive.
25On 12 October 2017, the plaintiff saw his general practitioner because he was experiencing back pain and he was prescribed Panadol Osteo. He kept working.
26On 17 October 2017, the plaintiff went over a speedbump in the main street in Thomastown, jolting his back. He immediately felt severe pain in his lower back. He felt pain down his right leg and stopped work. He reported the incident to his supervisor on the despatch. They sent a driver with him with a company car to take him to the doctor.
27The plaintiff saw his general practitioner the next day. Treatment has continued and the plaintiff has not returned to work.
28The plaintiff deposed to his subsequent treatment and the claimed consequences of his injuries. He swore a further affidavit on 17 February 2021, updating his situation.
29The plaintiff confirmed that he had had no problems with his back driving the same buses and on similar routes before 1 September 2015.[7]
[7]T15; T17
30The plaintiff could read his affidavits and was satisfied that they were true and correct when he signed them.[8] He had a good relationship with his manager, Rob, and could easily talk to him and tell him if he had any problems. It was up to him to report any difficulty he had with bus seats. He could not remember if he did report a problem or not, because if he reported it then it would be in writing. Rob “never wrote something” for him but maybe he told him. He could not remember.[9]
[8]T16
[9]T18-19
31On 3 September 2015, the plaintiff told Rob that he had pain in his back. He told him that he hurt himself when he went over a speed bump. He had a good memory of the event. He did not remember or know when Rob filled out the incident form.[10]
[10]T20
32The plaintiff confirmed that his son picked him up and took him to Dr Dzartov at Epping.[11] This was the first time the plaintiff had been to that clinic. He did not have a general practitioner before the accident. He had gone to a couple of doctors. He did not know who they were – in Thomastown. He could not have gone to a doctor at Thomastown on 3 September 2015.[12] As far as he could remember, it was Epping that he went to on 3 September 2015, when he told the doctor he had back pain.[13] He could not remember seeing a Dr Hemiz in Thomastown before 3 September 2015.[14]
[11]T21
[12]T22
[13]T23
[14]T24; clinical records of that practice indicate the plaintiff was last seen there in 2014
33The plaintiff agreed that he changed doctors. He had a language barrier and he could not understand everything his previous doctor said - “It was not illegal to change doctors.” He went to Epping, which was 13 kilometres from his house, because he could not understand what his previous doctor said to him.[15]
[15]T25
34When taken to the ambulance record of 3 September 2015 which set out “the patient injured his lower back five days ago performing low intensity activities at home,” the plaintiff was doing an activity at home but he could not remember if he said he was injured five – or how many days ago. He was suffering pain at the time. It was not true that he hurt his back doing something at home and not driving the bus.[16]
[16]T28
35The plaintiff denied that he was injured five days prior to 3 September 2015.[17] He had been “under morphine”. He could not remember what he told the ambulance officer. He had been gardening before he was injured, but gardening did not cause his injury.[18]
[17]T28
[18]T29
36The plaintiff could not remember what he said at the Northern Hospital, where it was recorded:
“Pain- back, injures back gardening on Sunday now increasing pain when coughing today, lumbar pain radiating down left leg able to crawl to couch had analgesia.”
“5/7 hx of lower back pain….since gardening at weekend.”
37At the Hospital, he was under the influence of morphine.[19] He could not remember telling the hospital he had a five-day history of lower back pain since gardening at the weekend.[20]
[19]T33
[20]T31
38“Maybe” his family said something at the Hospital about back pain since gardening, but he did not know “who or what they was talking (sic)”.[21]
[21] T33
39The plaintiff agreed that his pain on 3 September 2015 became very intense at home after coughing.[22] The pain was not from gardening. He had not anywhere mentioned driving a bus or work because –
“I was saying something big they going to sack me straight away, I know one of my colleagues was always doing the … and they were finding a little thing to get rid of him.”[23]
[22]T32
[23]T33
40When asked why Dr Dzartov made no reference to the plaintiff’s work in his 5 September 2015 note, the plaintiff said:
“Because I didn’t intend to tell the doctor that because I didn’t plan anything of that nature. I was speaking in the sense that, you know, I mean, I don’t want to, you know, have WorkCover and things that have – nature. I didn’t tell him about it coz I didn’t wanna have problems at work.”
41Dr Dzartov did not ask him if he was injured. If he had asked him, he would have given an answer. He was telling the truth.[24] He could not remember what he had talked about to Dr Dzartov on 5 September 2015.[25] It was not true that he did not tell him anything about it happening at work because he hurt himself gardening.[26]
[24]T37
[25]T37
[26]T38
42The plaintiff could not remember when he told Dr Dzartov that he had hurt his back at work in 2015. “You’d have to ask the doctor” why he did not mention 2015 in his reports.[27]
[27]T39
43The plaintiff reported his injury before he returned to work on 24 September 2015, the day the incident report was processed. He was not injured when he was gardening.[28] He had been doing gardening all his life, but he never hurt his back doing gardening or mowing the lawn.[29]
[28]T42
[29]T43
44The plaintiff did not make any complaints about bus seats on his return to work, because he “had a bunch of colleagues who were doing complaints and they were sacked. They were complaining and they were sacked straight away.”[30]
[30]T43
45After his return to full-time work in November 2015, the plaintiff was taking painkillers and wearing a back brace. He agreed that he had never at any stage complained to his boss about the bus seats.[31] The back brace was his idea. His doctor was giving him tablets and the plaintiff was going to the pool on his own.[32]
[31]T44
[32]T45
46The plaintiff initially went back to light duties, had some physiotherapy, and then was working fulltime by November 2015. He continued hydrotherapy in the swimming pool after that.[33]
[33]T45
47The plaintiff could remember Dr Dzartov completing a driving assessment form in February 2016 to enable him to continue working as a driver.[34] The plaintiff understood that he had to tell the truth when he signed the document and he did not tell the truth.[35]
[34]T45
[35]T47
48The plaintiff agreed that Dr Dzartov would have then recorded his back movement was normal because that was how he presented on the day.[36] The plaintiff could not remember completing his part of the assessment form. While it was ticked “no” to never having had a previous spinal injury, that was incorrect.[37] The plaintiff was scared and he needed a certificate to continue driving.[38]
[36]T50
[37]T53
[38]T54
49After the February 2016 driving assessment, the plaintiff continued to work full time as a bus driver until 17 October 2017. He did not ask for a different bus. He did not make a complaint. He did not get a certificate for lighter duties in that time or ask his doctor to say he should have more breaks at work.[39]
[39]T61
50The plaintiff was taken through Dr Dzartov’s notes of subsequent attendances leading up to October 2017 in which there was no mention of any work connection or problems with the bus.[40] A number of episodes of back pain were noted and there was no reference to any problems down the leg.[41]
[40]T63
[41]T64
51On 17 October 2017, Dr Dzartov noted a complaint of weakness in the right leg. The first time the plaintiff felt pain in his left leg was in 2015, but in October 2017, it was the right leg. Since, “it has been mainly the left leg and it’s actually sort of, like, it becomes a bit painful and tender” and he gets a lot of numbness in his left big toe. There are times that he does get pain in the right leg and also in his left leg, but he gets it more often in his left leg.[42]
[42]T66
52The plaintiff agreed that there was no mention of problems with bus seats or sitting in an uncomfortable position in that October 2017 entry. He agreed that he had had occasional flareups of back pain on and off since 2015 and that they could happen at any time, such as coughing at home or bending over to pick up something.[43] However, “we’d drive twelve hours a day in the same seat, you know, going up and down” and that is when he felt a lot of pain and a lot of pain in his leg. He agreed that he felt pain in his leg and a lot of pain in the specific incident involving a speed bump on 17 October 2017. He did not make a report to the police or make a TAC claim in relation to that incident.[44]
[43]T66
[44]T67
53The employer’s HR person got the plaintiff to fill out a Claim Form in December 2017, suggesting it was best for him to do that and go through WorkCover. The plaintiff filled out the form with Max Dyson. Max wrote how the accident happened but the dates were in the plaintiff’s writing.[45] It was correct that he was injured when he felt a big pain going over a speed bump and he told Max Dyson that. He agreed that he was happy with the contents of his Claim Form because he signed it. Nobody told him what to write when it was suggested to hm that he should have mentioned the condition of the seats.[46] He did not know what to write. He just told Max what happened.[47]
[45]T69
[46]T70
[47] T70
54Through the interpreter, the plaintiff said he did not think he needed to mention to Dr Dzartov that he was injured driving buses over a period of years with poor seats. He did not know this was going to come to court or anything like that. He thought he was going to get better and continue.[48]
[48]T72
55Nobody asked him how he was injured when he went to see Associate Professor Gonzalvo. That doctor was concentrating on his back pain and what was best to do for it.[49] The plaintiff answered the questions Mr de la Harpe asked him.[50] He agreed he did not tell Mr de la Harpe or Associate Professor Gonzalvo about any problems with the seat.[51]
[49]T72
[50]T73
[51]T74
56What Dr Barton had recorded was accurate and the plaintiff probably told him that he did not feel the seat was faulty, although he said that all the drivers adjust the seat when they get into the bus. He did not think the seat was faulty – “I don’t know what [the doctor] says. I can’t understand properly what he say (sic) – adjusting the seat or something.”[52] The plaintiff then asked for the interpreter’s assistance.
[52]T75
57Asked about his conflicting answers, the plaintiff could not remember what words he said, but maybe the seat was alright. He could not remember what he said back then – “If the seats were going down, it is faulty.” When he sees doctors he does not talk about the seats, they talk about his illness, how to get better. If they ask him, he tells them the cause of the injury.[53]
[53]T77
58When asked whether he told Dr Wood about faulty seats, the plaintiff said no one asked him, because when he goes to the doctor they talk about the injury and they do not talk about the buses “they are not mechanics”.[54] They discuss about his injury, his pain and whether or not he should have surgery.[55]
[54]T77
[55]T78
59The plaintiff denied he injured his back while gardening over the last week in August. He denied he had pain for five days after that gardening injury, until a coughing fit made it worse and he ended up calling an ambulance. He agreed after his return to full time work in November 2015, he still had occasional flare ups of back pain. He agreed he was able to keep working full time for almost two years until October 2017, when he went over the speedbump and severely jarred his back.[56]
[56]T85
60The plaintiff had pain nearly every day while driving the last couple of months before he stopped working. Sometimes it was in the right leg, most recently in the left.[57]
[57]T86
61The twelve-hour shifts involved changing buses, not driving the same one. He would drive, over the course of twelve hours, three or four buses, doing the runs.[58] At the start of a shift, he was told which bus he would drive.[59]
[58]T86
[59]T87
Claim documents
62The original Claim Form signed on 1 December 2017 completed on the plaintiff’s behalf set out:
“Lower back injury
Was driving and felt a big pain as I went over a speed hump.
Driving a bus.”
63In that form, there was no answer to the question whether the plaintiff had had another injury, condition or personal injury claim that related to this injury/ condition to his lower back.
64That claim was accepted by letter from Gallagher Bassett Services Workers Compensation Vic Pty Ltd, dated 6 December 2017. In that correspondence, the plaintiff was advised that the claims agent accepted his claim for weekly payments and medical and like expenses in relation to an injury on 17 October 2017 as claimed in the form signed on 7 December 2017.
65The plaintiff made his first claim for impairment benefits on 23 November 2018. The form completed on his behalf set out:
“I SUSTAINED INJURY THROUGHOUT THE COURSE OF MY EMPLOYMENT AS A BUS DRIVER WITH DYSONS UP TO AND INCLUDING 17 OCTOBER 2017. MY WORK DUTIES CAUSED STRAIN AND JARRING OF MY LOWER BACK … OFTEN HAD TO … SEATS AND POOR SUSPENSION.”
66The injury was stated to have occurred on a particular date of 17 October 2017 and over the course of employment.
67The plaintiff made his second claim for impairment benefit on 17 December 2018, in similar terms.
68By letter dated 4 January 2019, the agent rejected the second claim, which was purported to involve the left leg as well as the lower back.
69The denial was based on a view the plaintiff did not sustain an injury to the lower back within the meaning of the Act by way of mechanism of the alleged injury, for example driving duties on omnibuses with alleged faulty seats and suspension throughout the course of employment, and he did not sustain an injury to the left leg arising out of or in the course of his employment.
70The plaintiff was also advised there was evidence that he sustained injury to his lower back in the incident when the vehicle went over a speedhump. This was an injury sustained in a discrete incident on 17 October 2017, but his claim was not couched in those terms. There was no evidence that he sustained injury by gradual process.
71The plaintiff was advised he may wish to consider how his claim was framed. If the claimed mechanism of injury was altered, the agent would be prepared to review the determination, but in the absence of evidence supporting a genuine gradual process injury, it could not accept liability for injury claimed to have been sustained throughout the course of employment.
72Further, in relation to the claimed injury to the left leg, the medical evidence available suggested the plaintiff had suffered referred pain as a result of his back injury, but there was no evidence of a direct injury to the left leg.
73The plaintiff submitted a third Impairment Benefit Claim Form on 9 January 2019, which set out:
“I SUSTAIN[E]D INJURY WHEN CARRYING OUT MY BUS DRIVING DUTIES.
REFER TO CLAIM FORM DATED 01/12/2017.”
74The particular date and time, if known, was 17 October 2017.[60]
[60] Not during the course of employment, as set out in the earlier Claim Forms
75On 20 June 2019, the agent advised that liability was accepted for injury to the lower back, but rejected for claimed injury to the left leg. The acceptance of the back claim was based on the examination findings of Mr Goldwasser on 6 June 2019.
Medical evidence
76As seriousness has been conceded, the evidence of treaters and medico-legal examiners is relevant only as to causation and the histories given to them by the plaintiff as to the circumstances of his spinal injury.
77In an Epping Worker’s Compensation First Attendance Form dated 1 October 2015, the date of injury was 3 September 2015 to the back. The employer’s name was Dyson Group. It was noted that the employer gave permission for the patient to receive medical, physiotherapy and x‑ray treatment. The contact person was Paula King.
78Dr Dzartov provided a number of Certificates of Capacity dated 24 September 2015, following an examination on 5 September 2015. He certified the plaintiff had no capacity for employment between 4 and 22 September 2015 and certified him fit for working, driving four hours a day, with no lifting from 23 September to 15 October 2015. The clinical diagnosis was described as left sciatica.
79A “Team Care Arrangement Authority”, was completed by Dr Dzartov, signed by the plaintiff on 6 January 2016 and the doctor the day before. It set out the principal diagnoses were hypertension and back pain. The goal was pain relief and mobility improvement. Panadol Osteo and Panadeine Forte were being prescribed.
80Dr Dzartov reported on 7 August 2019. He noted the plaintiff presented on 17 October 2017 complaining of weakness in the right leg. The plaintiff advised that on that date while he was doing a normal bus-driving run and travelling at about 10 to 20 kilometres going over some speedhumps, he developed some lower left-sided back pain and some pain and weakness in the right leg.
81There was no mention in that report of any earlier back injury. Dr Dzartov’s most recent report of 6 April 2021 was in similar terms.
Associate Professor Gonzalvo
82Associate Professor Gus Gonzalvo, neurosurgeon, saw the plaintiff at Dr Dzartov’s request on 22 May 2018.
83He noted the plaintiff worked as a bus driver and approximately three years prior, he suffered the acute onset of lower back pain and left sciatic pain. He subsequently had a recurrence of sciatic pain and had weakness in the left extensor hallucis longus. The diagnosis was L4-5 disc prolapse and lumbar canal stenosis with radiculopathy.
84On 26 October 2018 he requested Workcover approval to perform a left L4-5 microdiscectomy and rhizolysis.
Dr Tiperneni
85The plaintiff first saw Dr Surya Tiperneni, psychiatrist, for treatment in October 2018.
86In his July 2019 report, he noted the plaintiff worked as a bus driver and presented with a history of chronic pain with lower back pain, with numbness in the left leg, which started 3 September 2015, following driving over a big road bump and since then, reported he had sharp pains, and he went to the doctor.
87The plaintiff took two months off, and subsequently went back to work, and his pain continued and caused him a lot of distress. This caused sharp pain in his left leg. He reported he had heart issues while in Macedonia in July 2016 and came back to Australia and returned to work soon after. He had aggravation with the pain at work on 17 October 2017, when the lower back pain became more intense and he had not gone back to work since.
Mr Zac Stojcevski
88The plaintiff has been treated by psychologist, Mr Stojcevski, since early 2019.
89In his first report of August 2019, Mr Stojcevski noted that in 2015, while working as a bus driver, the plaintiff sustained a back injury that was attended to, treated, remedied and controlled somewhat, and he was able to successfully return to work on normal duties. He had a mild cardio infarction in 2016 and after a period of recuperation, returned to his normal job and worked, despite some ongoing pain.
90However, on 17 October 2017, the bus he was driving went over a speedhump and apparently because of the poor and/or faulty seat suspension, the plaintiff felt immediately paralysed and he had not been able to complete his work or able to return to work since.
91In his most recent report of March 2021, Mr Stojcevski noted, abbreviating the information previously offered, the plaintiff sustained an injury to his back in 2015, when he was a bus driver and was treated before he returned to work. He had a minor heart attack in 2016, from which he recovered, and was able to return to work.
92The disputed injury occurred on 17 October 2017. The bus the plaintiff was driving went over a speedbump, or such other undulation and, reportedly, due to the poor and/or faulty suspension of some combination of seat and vehicle, he suffered a significant injury to his lumbar and sciatic spine. He had not returned to work since.
Physiotherapy
93The plaintiff commenced physiotherapy at Physical Healthcare on 1 June 2018 on referral from Dr Dzartov.
94On initial presentation, the plaintiff stated he sustained his injuries during the course of his employment as a bus driver. He described an incident in 2015, when he was driving a bus over a speedhump. He stated, over this time, he endured a significant jarring motion to his lumbar spine and an immediate onset of lower back pain. He was taken via ambulance to hospital and had the following two months off work. Following this initial period of rest, he made a successful return to work until October 2017, when he sustained a recurrence of his lower back pain during the course of his employment. He had not returned to work since.
The Plaintiff’s medico-legal evidence
Mr De la Harpe
95Mr David de la Harpe, orthopaedic surgeon, reported to the plaintiff’s solicitors in November 2018, having seen the plaintiff on 23 January that year.
96In terms of history, he noted that in 2015, the plaintiff was driving over a speedhump and he jarred his back. He experienced back pain and left leg symptoms and was off work for two months. He made a return to work, but at the time of the review had been off work for the last three months.
97Mr de la Harpe concluded that the history given was that of an accident at work while employed as a bus driver, the plaintiff went over a speedhump which jarred his back and produced left leg symptoms, necessitating him to take time off work.[61]
[61]There is no mention of the October 2017 incident, only the 2015 incident
Associate Professor Goldwasser
98Mr Goldwasser saw the plaintiff, on the defendant’s behalf, in June 2019 for the purposes of an impairment claim in relation to the October 2017 incident.
99The plaintiff then gave a history of first having problems when he was at work on 3 September 2015, when he had driven over a speedhump that jolted his back and he had considerable pain.
100The plaintiff underwent treatment and a range of investigations. He was told by his doctor there was a problem with his lower back. He stayed off work for two months and had medications and physiotherapy. Lighter duties involved shorter shifts and there would be another driver with him. He was allowed to return to normal duties by the end of the year.
101The plaintiff’s back never fully recovered and he had intermittent flare up of symptoms when he would take medication. He estimated he had lost five to ten days off work, which he took as sick leave. This pattern continued until he had a further injury in the October 2017 incident where there was a similar episode of driving over a speedhump, again jolting his back and causing him pain. It was after that incident that the pain radiated to his left lower limb as well to the buttock area and thigh, into his calf. He could not continue with work and had not returned to work since.
102Mr Goldwasser thought the plaintiff suffered an injury to his lower back, aggravating what were previously relatively symptom-free degenerative changes in his lower back and there was evidence of L4-5 disc pathology, including disk prolapse.
Dr Horsley
103Dr Robyn Horsley, occupational physician, examined the plaintiff in June 2020. In the report head note, the injury was 1 September 2015. She had been earlier sent a letter of instruction, where she was advised the plaintiff suffered an injury to his back over the course of his employment.
104In terms of history, on 1 September 2015, the plaintiff began to experience pain and discomfort in his lumbar spine. He stated he was driving the buses with uncomfortable seats. There was no specific event. However, two days later he was driving route 561 and as he drove towards Reservoir Station, there was a speedbump, over which he drove the bus. The seat that he was sitting on was rigid, which resulted in jolting of his lumbar spine and quite severe back pain. He completed an incident report and consulted his doctor, who prescribed medication.
105Dr Horsley noted subsequent treatment and the plaintiff being off work for about a month before returning on 23 September 2015 on a graduated return to work program, commencing four hours a day, five days a week, but doing normal duties. He gradually increased back to work in full hours by November 2015 and consulted his doctor intermittently thereafter. She noted the myocardial infarction and stent in Macedonia in 2016.
106The plaintiff consulted his general practitioner once again on 11 September 2016, wanting a referral to an orthopaedic surgeon, but at that stage, the plaintiff had not lodged a WorkCover claim, so he was placed on a waiting list at the Austin Hospital and continued to work.
107Dr Horsley then recited the matters deposed to by the plaintiff as to his back issues from about March 2017, when he was transferred from the Reservoir depot to Bundoora to the time of the incident on 17 October 2017 when he went over a speedbump jolting his back, immediately experiencing severe back pain radiating down the right leg. He then stopped work.
108Dr Horsley concluded the plaintiff presented with ongoing mechanical back pain with radicular left leg pain and some radicular clinical features. He initially experienced back pain in September 2015, but his back pain was considerably aggravated on 17 October 2017. She believed the events as described and the clinical presentation were consistent. On history, the poor nature of the seats in the old Scania and Volvo buses with a mechanical adjustment that was often faulty, air compression that was not necessarily adequate, and rigid seats, had resulted in the plaintiff’s significant disc lesion.
Professor Bittar
109The plaintiff was examined by Professor Richard Bittar, neurosurgeon, in August 2020. In his letter of instruction, he was also asked to examine the plaintiff in relation to injuries suffered during the course of his employment. The history of present complaints was very similar to that described by Dr Horsley, taken from the plaintiff’s affidavits.
110Professor Bittar noted that the plaintiff was driving buses which had very old seats which needed to be adjusted with a lever. Quite often the seats were either extremely difficult to adjust or could not be adjusted at all. They were frequently either extremely hard to sit on or were too soft, so that he would be bounced around. The air compression system in the seats was frequently not working and this would lead to the transmission of significant jolting forces through his buttocks into his body.
111Pain and discomfort in the lower back commenced around 1 September 2015, striking a speed bump two days later and reporting that injury and calling his son to take him home after he had driven him to the depot.
112The plaintiff attended his general practitioner on 3 September 2015 and was treated with analgesics. He went home and changed his clothes and, as he did, he experienced a significant worsening of lower back pain when he coughed, and he was taken to Northern Hospital by ambulance and discharged several hours later. He saw his general practitioner on 5 September 2015.
113Professor Bittar noted the plaintiff was off work for about a month and returned part time on normal duties around 23 September 2015. He was able to return to full-time work around November 2015, however his condition worsened and he recommenced physiotherapy the next month. He continued to see his general practitioner in late 2015 and early 2016 in relation to back pain.
114The plaintiff returned to work in August 2016, having travelled overseas for a couple of months. He had lower back pain at that time and was referred to an orthopaedic surgeon, followed by a neurosurgeon. He remained at work and was transferred to a different depot in March or April 2017, and by that time he was using a back brace to assist him to drive. One of the buses he was driving at that stage was a very old Mercedes Benz bus with an extremely uncomfortable seat. His condition worsened in October 2017 and on 17 October 2017, he went over a speedbump in Thomastown, jolting his back, and he experienced severe lower back pain radiating down his right leg. He ceased work at that time and has not resumed since.
115Professor Bittar thought the plaintiff’s employment had been a significant contributing factor. There was a similar history in the re-examination in February this year and similar conclusions.
116In Professor Bittar’s opinion, the plaintiff’s injury was caused by a combination of the course of employment with a specific incident on 3 September 2015 and a specific incident on 17 October 2017.
Dr Ingram
117The plaintiff was examined by psychiatrist, Dr Nicholas Ingram, in October 2020.
118The plaintiff said he had been working as a bus driver for about seven years and enjoyed his job. There was an incident in 2015, when he had gone over a bump and developed pain in his lower back, with radiation into his left leg, although after a few weeks on light duties this pain had improved and he had then gone back on normal duties.
119In October 2017 however, there had been an incident when he had gone over a speedhump and he again became immediately aware of pain in his lower back with radiation into his left leg. He had not returned to work after this accident.
120Dr Ingram concluded the plaintiff’s Adjustment Disorder was secondary to his pain and if it was accepted his pain related to his employment, then his depression was also related to his employment.
Clinical notes
121The Epping records detailed treatment from 5 September 2015 to 4 January 2019.
122When the plaintiff first attended on 5 September 2015, it was noted:
“Low back pain radiating in both legs 7/7 ago, seen at ED northern hospital, diagnosed with sciatica and commenced on Panadeine Forte.”
123On 8 September 2015, the plaintiff complained of ongoing back pain. These complaints continued into January 2016 and resumed in September that year with a referral to a neuro surgical clinic in October 2016. Further complaints were noted in March, April and June 2017. The next back complaint was on 12 October – “pain back.”
124Dr Dzartov made no reference in his notes to any work involvement in the plaintiff’s back condition until 17 October 2017, when it was noted “WORKS COMP FIRST ATTENDANCE FORM”.
125Attendances for back pain continued thereafter.
126Dr Dzartov provided normal medical certificates (not WorkCover) certifying the plaintiff unfit for work for medical reasons not specifically identified on 4 March, 15 April, 25 June and 12 October 2017.
The Defendant’s evidence
Lay evidence
127Navdeep Singh swore an affidavit on 31 March 2021. He is currently working as a scheduling coordinator for the employer, and was the plaintiff’s supervisor at the Reservoir depot.
128Exhibited to his affidavit was an injury detail report dated 24 September 2015 and numbered 1617. The report was completed after the plaintiff advised “as he was driving felt a pain in the lower back”.
129The plaintiff told Rob Kazanovski that he returned to driving and was driving on 3 September 2015, when he went over a speedhump and felt pain in his back. He went home on that day and waited until a family member came home to take him to hospital.
130While the plaintiff deposed to sitting on an uncomfortable seat, there is no record with the employer of any reports by the plaintiff of any issues with any of the seats in the buses he drove during his employment. The September 2015 incident and the one that occurred in 2017 were as a result of the plaintiff driving over a speedhump as reported by him at the time. If he had been told him about an issue with the seat, Mr Singh would have made a note of it and the bus in question would have been replaced while any issues were repaired.
131Mr Singh noted the October 2017 incident, at which time he was service delivery coordinator. The plaintiff reported the incident to him and he prepared an injury detail report dated 17 October 2017, numbered 2005. The report noted the plaintiff was driving in vehicle 816 on shift 38 at the time he was injured – a Volvo bus.
132There was no footage still available from the internal camera, but Mr Singh was able to say the date and time of this incident.
133The plaintiff did not lodge a claim form in relation to the September 2015 incident. Mr Singh understood that the previous return to work coordinator, Max Dyson, assisted the plaintiff reporting the incident to the police.
134The injury detail report form, number 1617, seems to have been entered by Robert Kazanovski on 24 September 2015. The date of injury is noted as 1 September 2015 at 12.30. The cause is “muscular stress no objects” and injury notes read:
“[A]s he was driving felt a pain in lower back and on 03/09/2015 when he had gotten home he had a bad pain that had forced him on the floor. He had waited there for about 1-2 hours before someone come home and took him to hospital by ambulance.”
135In the injury detail report form relating to the 2017 incident, it was noted that the time of injury was 13:06. The injury notes read:
“Driver was having pain in his leg and lower back.
He informed that he is having pain since last three to four days, but he was trying to cope it up.
He was having same issues approx. 3 years ago.”
136Robert Kazanovski swore an affidavit on 7 April 2021. He currently works as a driver trainer with the employer and was the plaintiff’s manager at the Reservoir depot. He completed the injury detail report form of 24 September 2015.
137Mr Kazanovski’s affidavit was in similar terms to Mr Singh’s. He confirmed that there was no record of any complaint with any issue of the seats by the plaintiff when he was there and that action that would have been taken had that been done.
138Peter Churchland, claims agent of Gallagher Bassett Services, swore an affidavit on 12 April 2021 setting out the history of the plaintiff’s impairment benefit claim, exhibiting all the relevant claim documents and correspondence.
139The claim was ultimately accepted after the plaintiff relied on the one incident of 17 October 2017, rather than the course of employment, which was the basis on which the applications had earlier been rejected.
140There was no reference in the most recent impairment Claim Form of January 2019 to the injury being sustained by gradual process. If it was accepted for a gradual process injury, it would have stated so under the liability decision and would have said the injury was sustained by way of gradual process.
Other documents
141The defendant’s solicitors advised the plaintiff’s solicitors by letter of 10 September 2020 that the seat safety check log had been reviewed and no defects were recorded.
142By letter dated 12 May 2020, Lander & Rogers advised the plaintiff’s solicitors that it maintained its position referred to in previous discussions, that the plaintiff’s injuries arose in a transport accident and that the appropriate serious injury gateway was under s93 of the TAA. This position was confirmed by letter dated 8 April 2021.
143In its letter of instruction to Dr Horsley dated 19 May 2020, Zaparas Lawyers advised they acted on the plaintiff’s behalf in relation to a claim for common law damages arising from injuries suffered during the course of his employment with Dysons. She was provided with the affidavit material detailing the plaintiff’s complaints.
144The letter to Professor Bittar of 20 July 2020 was in similar terms.
The Defendant’s medico-legal evidence
Dr Barton
145Dr David Barton, consultant occupational physician, carried out a worksite visit in February 2018 and examined the plaintiff at the request of Gallagher Bassett.
146In terms of the history relevant to injury, the plaintiff said on 17 October 2017 that he was doing a normal bus driving run, a run he had done previously. He said he was travelling about 10 to 20 kilometres per hour going over some speedbumps that he knew were there. He said he did not feel the seat was faulty, although he said that all the drivers adjusted seats when they get into a bus. He felt, as a result, that he had developed some lower left-sided back pain and had trouble moving, and the symptoms also went into his left leg.
147The plaintiff said he pulled over at the next stop, stood up and still had ongoing problems. He then contacted the depot and was replaced by another driver and taken by his manager to see a local doctor.
148Dr Barton thought it difficult to see how this level of impact would have caused any particular significant problem. He had concerns as to whether there was any organic basis to the plaintiff’s complaints. The plaintiff may have had a mild soft tissue injury with his ongoing presentation pointing more towards a functionally based condition – contrived grimacing and inconsistencies on examination et cetera.
149Dr Barton believed the plaintiff could return to the hours and duties reviewed during the worksite visit. He considered motivational factors and over medicalisation of his problem were playing a part in the plaintiff’s presentation.
Dr Cotton
150The defendant organised for the plaintiff to be examined by clinical and organisational psychologist, Dr Peter Cotton, in May 2018, in relation to the injury of 17 October 2017.
151The history relevant to the injury noted that the plaintiff had worked as a bus driver over the past five years with the employer. He sustained a non-specific lower back injury on or about 17 October 2017, ceased work and had not returned since.
Dr Wood
152Sports and exercise medicine physician, Dr Timothy Wood, has examined the plaintiff on a number of occasions on the defendant’s behalf.
153Dr Wood first reported following the initial examination in August 2018. He had been requested to do an independent medical examination in relation to the 17 October 2017 injury.
154Dr Wood noted the plaintiff initially injured his back in 2015 and was off work for a couple of months before returning on light duties, and then full duties a few weeks afterward. He stated his back was never 100 per cent, as he had to be careful with lifting and not moving too quickly. On 17 October 2017, he went over a speedhump outside the school, driving the bus slowly, but he re-aggravated his left-sided lower back pain, with the pain soon spreading into his left leg.
155In summary, the plaintiff re-aggravated his left-sided low back and in particular, left leg pain when he went over a speedbump slowly in October 2017, re-aggravating a similar injury in October 2015, from which he was able to return to all his normal duties and hours.
156The history relevant to injury was repeated in Dr Wood’s 2019 and 2020 reports. Dr Wood noted the plaintiff had a previous history of back and left leg pain in 2015 and he considered the October 2017 incident was a recurrence of this injury.
Overview
Credit
157Counsel for the defendant submitted the plaintiff’s credit was in issue for a number of reasons. In particular, having admitted he understood he had to tell the truth, he signed a false declaration in the driving assessment, stating he had no previous spinal problems. His evidence that he drove for twelve hours a day sitting on the one seat was exaggerated and misleading.[62]
[62]T67
158Further, he withheld information from his doctor about how the September 2015 incident happened because he was not planning at that time to make a WorkCover claim.[63] He failed to mention the gardening injury to any treating doctor or examiner, or in his affidavit.[64]
[63]T36
[64] T105
159Counsel for the plaintiff submitted the plaintiff was somewhat of a stoic and lied on his driving assessment because he was very keen to keep his job and that was also the reason he made no complaint to his employer about any problems with the buses he was driving.[65]
[65]T61
160It was submitted the plaintiff’s evidence about the poor quality of the buses he was driving was unchallenged. He was wholly credible and did not make complaints despite ongoing problems with his back and having continuing treatment. He liked his job, he wanted to keep it, and he did not want to go on WorkCover. He was apprehensive that he would be unpopular if he made a complaint, and it might impact on his employment, but he was keen to keep his job, as his inaccurate answers to the driving assessment indicated.[66] That driving assessment certificate was “consistent with a man who wants to soldier on and wants to keep his job.”[67]
[66]T150
[67]T56
161In my view, the plaintiff was not a reliable witness. His ability to understand questions and answer mostly in English, indicated his understanding of English was not as poor as he claimed. In my view, when he resorted to the interpreter, he was aware of what issues were involved in the question rather than not understanding the question itself.
162He gave a wide range of reasons for not telling doctors about any work-related back problems, beyond the speed bump incidents. I do not accept fear of losing his job was an adequate explanation for this situation as he was prepared to tell his employer of the specific incidents in which he suffered back pain and an incident report was then completed by them. He was also prepared in cross-examination to exaggerate the extent of his driving, saying he drove the same bus for twelve hours without a break, which was clearly untrue.
Is the 3 September 2015 incident compensable?
163While central to the issue in this case was whether or not the plaintiff had accessed the correct gateway, and therefore under what Act the serious injury application should be brought, the defendant also raised a causation question as to what was actually producing the current spinal impairment consequences and the nature of the circumstances in which the plaintiff suffered his injury.[68]
[68]T6
164Firstly, counsel for the defendant submitted that the September 2015 injury was precipitated by gardening the plaintiff did at home in the last weekend of August 2015, following which his symptoms were made significantly worse as a result of a coughing fit at home on 3 September 2015.
165Various examples were given as to the plaintiff’s admission he was doing activities at home; not remembering how many days earlier he had had pain, and then denying being injured at home or while gardening. He also gave a number of explanations for not mentioning a work connection: namely, that he could not remember what he told people then, because he was in pain and on morphine, he suggested his ex‑wife may have given an incorrect history, and then said, when pressed, he was saying “something big, they were going to sack him straight away.”
166Further, the plaintiff’s evidence that the first time he experienced back pain was on 1 September 2015 at work when driving buses was directly contradicted by the contemporaneous evidence of the ambulance and Northern Hospital.
167The ambulance and hospital records do not contain any history of back pain in the context of work or any frank incidents while driving a bus over a speedhump. While the focus of those examiners necessarily is on treatment rather than injury, it was submitted the reference to activities at home, gardening and coughing, indicate the circumstances of the injury were in fact discussed with the plaintiff.
168There was also no mention of any work injury in September 2015 in the Epping notes. In his reports to Zaparas Lawyers in 2019 and 2021, Dr Dzartov made no mention of any injury at work in September 2015, despite the fact that he had treated the plaintiff for back pain in 2015 and 2016.
169It was submitted language/communication difficulties do not explain this situation as the plaintiff changed to the Epping clinic to see a doctor who spoke his language and he confirmed he had no problems with Dr Dzartov in that regard.
170Further, being under the influence of medication does not explain why an entirely different version of the accident circumstances was initially provided to the ambulance, hospital and doctors.
171Counsel for the plaintiff agreed Dr Dzartov does not appear to be the greatest notetaker, not only his lack of reference to driving on 5 September 2015, but also his note of 7 October 2017 making no reference to driving buses.
172However, while the Epping notes themselves were silent on any work involvement in any back problems in early September 2015, other documents from the plaintiff’s file, provided after his viva voce evidence, led to the inference that Dr Dzartov considered the plaintiff’s back complaint to be work related.[69]
[69] T49
173The Worker’s Compensation Attendance Form dated 1 October 2015 is particularly significant, setting out the plaintiff’s details, date of injury as 3 September 2015, type of injury – “back” – and the name of employer Dyson Group and its contact person Paula King. It was also noted the employer accepted liability for medical treatment.
174Although the plaintiff made no claim in relation to any injury in September 2015, Dr Dzartov prepared three Certificates of Capacity for a work-related injury/VWA claim that month.[70]
[70]T49
175There is also the corroborating evidence from the plaintiff’s employer as to both the report of back pain on 1 September 2015 and then the speedbump incident on 3 September 2015.
176Both affidavits relied on by the defendant confirmed that on 1 September 2015, the plaintiff complained of a pain in his lower pain as he was driving.[71] Two days later, he reported back pain when he drove over a speed hump.
[71] Injury Report 1617
177I do accept there are difficulties in getting a history in an emergency department, and the fact that often ambulance accounts are transposed, as counsel for the plaintiff submitted.[72]
[72]T45
178While there are mentions of gardening and an earlier on set of back pain than September 2015 in some of the histories, I am satisfied that there is a causal connection between the back injury on 1 and 3 September 2015 and the plaintiff’s employment as supported by Dr Dzartov’s documents and the employer’s affidavits. The question of causation is one of common sense and it is not necessary for the plaintiff to establish that the act or omission of the employer was the sole or dominant cause of his injury.[73]
[73] Zlatevska v Consolidated Cleaning Services Pty Ltd & Anor [2006] VSCA 141at paragraph [72]
“Transport accident”
179The incident on 3 September 2015 – a jolt directly caused by the driving of the bus, having occurred as the plaintiff drove over a speedhump – is a transport accident, being an incident directly caused by the driving of a motor vehicle.[74]
[74]Koutroulis v Transport Accident Commission [2011] VSC 159
180For similar reasons, the speedhump incident on 17 October 2017 is also a transport accident.
A course of employment/gradual process injury?
181As counsel for the plaintiff acknowledged, if it is not accepted this is a gradual process/course of employment injury, the plaintiff would be required to bring separate applications under s93 of the TAA in respect of each speedhump/transport accident injury – a more difficult task than this present application under the WIRC Act.[75]
[75]T13, T53
182While following a course of employment scenario was relied on in the Draft Statement of Claim and the Particulars of Injury, the main focus of the plaintiff’s back injury claim has been on the specific incident on 17 October 2017.
183In those circumstances, it was submitted by counsel for the defendant that the plaintiff had not discharged the burden of proving he suffered spinal injury by way of gradual process throughout the course of his employment and the correct gateway seeking leave to bring proceedings is the TAA.
184The first mention of any injury sustained throughout the course of employment due to driving with faulty seats was in the November 2018 impairment benefit Claim Form and repeated in similar terms in the December 2018 Claim Form. The application was rejected.
185This rejection was not challenged. Instead, a further claim was lodged alleging injury on a specified date – 17 October 2017 – and liability was accepted for that claim, as the claims agent explained, because it related to that incident only, not a gradual process.[76]
[76]Mr Goldwasser’s impairment assessment upon which an impairment benefit was allowed, made no specific finding as to causation as liability had been accepted for a specific injury in October 2017
186The December 2017 Claim Form relating to the October 2017 injury identified a specific incident, and the plaintiff himself characterised it in this way, telling against a finding of injury suffered throughout the course of employment.
187There was not a claim for statutory benefits for injury throughout the course of employment, nor did the plaintiff make any allegation of poor ergonomics or a defective seat in his statutory benefits Claim Form. It was submitted if this had been the situation, he would not have needed to be told what to write in the form.
188The plaintiff did not report any difficulties with the bus seat to his employer or make any allegation of injury suffered during the course of employment. This is supported by Mr Singh’s affidavit and his evidence he would have done something if there had been an issue, as would Rob.
189The injury detail report form of October 2017[77] does not assist the gradual process injury case, with the last sentence setting out “he was having the same issues approximately three years ago”.
[77]T65
190Further, the plaintiff’s treating doctors and physiotherapist do not record any history of difficulties with bus seats, poor ergonomics, or inadequate breaks available to the plaintiff. None of the practitioners diagnosed any injury suffered as a result of driving duties throughout the course of employment.[78]
[78]Dr Dzartov, Associate Professor Gonzalvo, Mr de la Harpe and Ms Vinci
191It was submitted the plaintiff’s explanation of why he did not refer to the course of employment/ gradual process injury was a reconstruction for the purposes of claiming an impairment benefit and for this case.
192Further, a range of medico-legal specialists, including Dr Barton, Dr Cotton and Dr Wood, do not take a history of injury suffered throughout the course of employment, the plaintiff making specific reference to them to the October 2017 injury.
193It was not until the involvement of medico-legal specialists in 2020 and 2021 – Dr Horsley, Professor Bittar and Dr Ingram – that the histories of alleged injury throughout the course of employment emerge and are mentioned in the letters of instruction which provide a history of injury that was not previously provided by the plaintiff himself to other medico-legal specialists.
194The history recorded by Dr Horsley almost exactly mirrors the paragraphs of the plaintiff’s affidavit detailing the problems with the buses. The plaintiff admitted he did not discuss these issues with doctors.
195It was submitted the histories to medico-legal examiners are less reliable than the spontaneous and more contemporaneous histories directly provided by the plaintiff to treaters and early medico-legal specialists before this application was prepared by his lawyers.
196In any event, the characterisation of the plaintiff’s injury as having occurred by way of gradual process of driving throughout the course of employment gets limited support from medico-legal specialists.
197Dr Horsley diagnosed ongoing mechanical back pain with radicular left leg pain and some radicular clinical features. She noted the plaintiff initially experienced back pain in September 2015, but his back pain was considerably aggravated in 2017. She noted he presented with MRI and CT scan evidence of a significant L4‑5 lesion, but she did not make any clear diagnosis of any injury suffered by a gradual process from driving duties over time.
198Professor Bittar diagnosed aggravation of lumbar spondylosis with left L5 radiculopathy and stated “In my opinion his employment has been a significant contributing factor,” but does not elaborate on how the plaintiff’s employment contributed to the injury, for example whether it was by driving duties generally and as a result of the incidents in 2015 and 2017.
199In response, counsel for the plaintiff relied heavily upon the fact the plaintiff’s evidence about the poor quality of the bus seats he was driving was unchallenged.
200Further, it was submitted the plaintiff certainly had ongoing problems with his back after 3 September 2015 and was referred to an orthopaedic surgeon in September 2016 and a neurosurgeon in October of that year. There certainly was an ongoing back problem, although the plaintiff was working full time. He had a day off work on 4 March 2017 because of pain. On 15 April, 25 June and 12 October that year, he was given a medical certificate because of back pain and then he went off work after the October 2017 incident.[79]
[79] However, these certificates, provided after submissions, were normal medical certificates, not WorkCover certificates.
201Also in support of the gradual process argument, counsel relied on the 1 September 2015 complaint of back pain two days before the speedhump incident and also the lack of any evidence of deterioration in the plaintiff’s spinal condition between the 2015 and 2017 CT scans.[80] It was submitted that the latter was very supportive of the contention that this is basically a gradual process which continues to aggravate the plaintiff’s back -[81] “If the buses were so good, you would expect the plaintiff’s condition to gradually improve rather than remain the same.”[82]
[80]T53
[81]T47
[82]T56-57
202It was submitted the lack of complaint could be explained by the plaintiff’s stoicism and willingness to get back to work in circumstances where there is no evidence challenging there being problems with the buses.[83]
[83]T61
203Further, it was submitted Dr Horsley clearly sets out a course of employment scenario, as does Professor Bittar.[84]
[84]T10
204However, as I indicated during the hearing, there was no proper medical analysis of this scenario provided by Professor Bittar or Dr Horsley. They simply accepted the contents of the letter of instruction and did not explain their conclusions, which were vague in any event.
205The other medico-legal evidence was absent any view that the plaintiff’s injury was as a result of a gradual process and focussed on the October 2017 incident. Significantly, this was also the case with the limited evidence from Dr Dzartov who treated the plaintiff throughout the relevant period.
206As counsel for the defendant submitted, a detailed report from Dr Dzartov would have assisted the Court in determining the issue of causation, as he was the first doctor on the scene, and in those circumstances, it can be inferred that his evidence would not have assisted the plaintiff’s case.
207I accept the plaintiff had ongoing problems with his back after 3 September 2015 as confirmed by Dr Dzartov’s notes and his referral of the plaintiff to an orthopaedic surgeon and a neurosurgeon. The plaintiff was certified unfit for work until 1 October 2015 and then worked part-time restricted duties. He resumed full-time normal driving duties – on the same buses and routes – the following month.
208The plaintiff did not lodge a WorkCover claim until October 2017 and that claim related to a specific incident on 17 October 2017, not a gradual process injury.
209The significant detail about difficulties with the buses was only really first described in the plaintiff’s affidavits and was not mentioned to any examiner or other person during the relevant period.
210Medical practitioners who have accepted the plaintiff suffered injury by gradual process, have accepted the detailed version in the plaintiff’s affidavit.
211I am mindful of what was said by the Court of Appeal in Dordev v Cowan & Ors[85] in relation to the plaintiff’s credit in this type of case. As Chernov JA said, a plaintiff’s credibility is relevant not only to whether his evidence should be accepted, but it is also relevant to the reliability of the medical evidence, because the opinions of the doctors are essentially dependent on the credibility and reliability of the history given to them by the plaintiff.[86]
[85] [2006] VSCA 254
[86] (ibid) at paragraph [14]
212Accordingly, in this case, what appear on their face to be medico-legal opinions supportive of the plaintiff’s claim, must be looked at in the light of my views as to the plaintiff’s credit.
213In my view, save for an experience of back pain when driving on 1 September 2015, the plaintiff’s back condition relates to the two speed hump incidents with significant pain commencing on 3 September 2015 and continuing at varying levels until 17 October 2017, when he suffered further injury, after which he has been unable to work.
214The situation essentially is one of ongoing back symptoms framed by two transport accidents, not one of a gradual process involving ongoing insults to the plaintiff’s back while driving buses at work.
215The plaintiff was clear in his evidence that at no time he made any complaint to his employer or to medical examiners about defective or uncomfortable seats. There is no reason, given his readiness to complain to his employers about the speed hump issues, that he would not have made such complaint if there was an ongoing issue.
216I accept, as counsel for the defendant submitted, the plaintiff’s “gradual process argument” is not assisted by the lack of reference to issues about bus maintenance etc in the employer’s affidavits which focussed on the reports of injury. This is a serious injury application, not the trial of the action where such liability issues are obviously more relevant.[87]
[87]T64
217Determining whether the correct injury gateway is pursuant to the TAA or the other Act, or both, depends on the evidence as to how the injury was suffered. The balance of evidence does not lead to a finding that a gradual process throughout the course of employment injury was suffered.
218As I find there were two transport accidents in which the plaintiff injured his back and that there was no gradual process injury in between, involving defective or uncomfortable seats, the application must fail under the ACA.
219Accordingly, this proceeding issued pursuant to s335 of the WIRCA is dismissed.
220Although not relevant to this application, in discussion with counsel for the plaintiff, I indicated my preliminary view that the plaintiff’s strongest case for serious injury was the 2017 transport accident, given his total incapacity thereafter, despite ongoing back complaints since September 2015.[88] It is arguable any aggravation resulting from the 2017 transport accident was serious on a Petkovski[89] analysis – the aggravation was serious, because the plaintiff had gone from full-time work on the same buses/routes for two-and-a-half years to not being fit for suitable employment.[90]
[88]T55
[89] Petkovski v Galletti [1994] 1 VR 436
[90]Opinion of Dr Wood in March 2020, Professor Bittar in February 2021 and Dr Horsley in June 2020
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