Delovski v Foster's Australia Ltd and Victorian WorkCover Authority
[2013] VCC 628
•23 May 2013 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-00921
| DRAGI DELOVSKI | Plaintiff |
| v | |
| FOSTER’S AUSTRALIA LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 and 6 March 2013 | |
DATE OF JUDGMENT: | 23 May 2013 (Revised) | |
CASE MAY BE CITED AS: | Delovski v Foster’s Australia Ltd & Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 628 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Compensable injury – injury to the lumbar spine – pain and suffering – loss of earning capacity
LEGISLATION CITED – Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38)
CASES CITED – Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Petkovski v Galletti [1994] 1 VR 436; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz[2012] VSCA 60
JUDGMENT – Leave granted to bring proceedings for damages for pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Moore QC with Mr S Smith | Slater & Gordon |
| For the Defendants | Mr P Hayes with Ms Bailey | Herbert Geer |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the first defendant on 18 October 2007 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38).
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this application is the lumbar spine.
Outline of Section 134AB
5 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages;
6 The impairment of the body function must be permanent;
7 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, subsections (19) and (38)(e) impose specific burdens in relation to a claim for loss of earning capacity;
8 By subsection (38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”;
9 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders;
10 Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter;
11 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
12 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases;
13 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] in reaching my conclusions;
[1](2005) 14 VR 622
14 In conformity with Barwon Spinners, in the present case I must identify the injury and impairment arising after 20 October 1999. I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after the injury: See Petkovski v Galletti;[2]
[2](1994) 1 VR 436
15 The plaintiff relied upon three affidavits and gave viva voce evidence. He was cross examined. The plaintiff’s general practitioner, Dr Gorgioski, and physiotherapist, Mr Vinci, were required for cross examination, as was Mr Leszko, fellow worker. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
16 In opening, counsel for the defendants conceded that the plaintiff had a serious injury in terms of both pain and suffering and loss of earning capacity, subject to satisfying the principles in Petkovski v Galletti.[3]
[3]Supra
17 The primary issue for determination in this case is whether the plaintiff suffered injury in an incident at work on 18 October 2007.
18 The defendants contend no such workplace injury occurred at all, and that the plaintiff’s back condition from October 2007 onwards was a manifestation of degenerative deterioration of his back, occurring as a consequence of his injuries sustained in May 2000 for which he claimed compensation from the TAC and his advancing age generally.
19 It is crucial, as counsel for the plaintiff conceded, that the plaintiff’s compensable injury preceded the examination by Dr Gorgioski on 22 October 2007 and the CT scan two days later. This is the case, because that examination was the first time the plaintiff complained of sciatica and that investigation was the first to show evidence of disc herniation and nerve root involvement. If I am not satisfied the injury occurred on the said date, as counsel for the plaintiff conceded, the application fails.
The Plaintiff’s evidence
20 In his first affidavit sworn 21 October 2010, the plaintiff deposed as to his background and schooling. He suffered a whiplash injury in a motor vehicle accident in 2000 (“the transport accident”) but was able to continue to work full time normal duties thereafter. Prior to the said date, he was treated with medication for high blood pressure.
21 The plaintiff described an active lifestyle prior to the said date, walking significant kilometres most nights, having an occasional game of soccer, maintaining a vegetable garden and living an active social life without any difficulty.
22 The plaintiff described his duties with the first defendant and that on a date in October 2007 while doing the crusher operator work, he bent over to the floor level and picked up a block of metal and was twisting to place it on a nearby pallet when he felt a sharp pain in his lower back. (“the incident”)
23 Initially the plaintiff did not think much of the injury. He tried to keep working however over the next couple of days, he was experiencing increasing problems with back pain which moved down his left leg.
24 The plaintiff consulted his general practitioner, Dr Gorgioski who prescribed pain killers and organised a CT scan. The plaintiff’s pains increased to the point where he had to cease work on 19 November 2007.
25 The plaintiff was referred to Mr Barrett who suggested surgery as did Dr Brighton Knight. Mr D”Urso, neurosurgeon, performed a laminectomy and discectomy at L4/5 on 15 February 2008.
26 The plaintiff returned to work in June 2008 on light duties gradually increasing his hours and duties but did not work on the crusher. His duties became too difficult and he had to finally cease work in December 2008.
27 Because of ongoing back problems, the plaintiff had a cortisone injection and Dr Gorgioski also prescribed various medications. The plaintiff also did exercises shown to him by a physiotherapist.
28 The plaintiff described constant lower back pain, weakness and instability, together with numbness in his left leg and a large restriction in his ability to use his back normally.
29 The plaintiff was unable to engage in heavy lifting and his ability to participate in sexual activity with his wife had been adversely affected. He had problems sleeping.
30 The plaintiff was very restricted in his ability to do gardening and look after the vegetable garden. He found lengthy walking difficult and had given up most of his former social activities.
31 The plaintiff had not been able to return to the work he loved. But for the incident injury, he had no plans to retire any time in the near future and had in fact declined an opportunity to accept a redundancy which had been offered to him and the rest of the first defendant’s workforce shortly before the incident.
32 The plaintiff had not been offered any rehabilitation or retraining and continued to receive weekly payments. He did not believe there was any employment suitable for him.
33 The plaintiff swore a second affidavit on 29 May 2012. Having been shown the claim form he completed on 27 November 2007, typed notes from Dr Gorgioski, the clinical notes of the first defendant’s nurse and records relating to his employment in October 2007, he deposed he was able to say 25 October 2007, the date which he recorded on his claim form as the date of injury, was incorrect.
34 The plaintiff believed the date of his injury was 18 October 2007, being a date on which he was doing four hours overtime on the crusher. As set out in his earlier affidavit, after a couple of days he consulted Dr Gorgioski on 22 October who arranged a CT scan which was performed on 24 October.
35 Whilst the plaintiff had previous problems with his back, these had settled prior to the said date. After the incident, he had had ongoing back pain which had never resolved and only got worse over time. The plaintiff deposed Mr D’Urso had recommended fusion surgery which the plaintiff did not want to have. The plaintiff then continued with treatment in the form of hydrotherapy, gym and physiotherapy and was taking a range of medication.
36 The plaintiff confirmed the restrictions earlier deposed to and difficulty sitting or standing for a long time, although his ability over time in that regard had increased a little bit. He continued to be restricted in gardening. He had limited various activities. He occasionally attended to watch his grandson play soccer.
37 The plaintiff swore a third affidavit on 30 October 2012. The condition of his back and restrictions placed upon him remained unchanged and he continued to require treatment.
38 In evidence in chief, the plaintiff adopted his affidavits. He confirmed he continued to be prescribed Valium, Tramal, Naxin, Prednisolone for cramping and Panadol. He confirmed that Dr Gorgioski was still certifying him unfit for all duties and that Mr D’Urso had suggested another operation a couple of years ago. The plaintiff did not wish to have further surgery because of the risk.[4]
[4]T 31
39 In cross-examination, the plaintiff agreed the first time he told anyone about a potential claim was on 7 November 2007 when he saw the nurse.[5] He really did not know what date he told her [6] but 25 October was the wrong date.[7].
[5]T31
[6]T37
[7]T37
40 The plaintiff could recall the nurse completing an incident form on 7 November 2007.[8] She gave him a copy. He did not correct the date of 25 October 2007 as he did not take much notice of what was written on the form.[9] He had not worked in his job for twenty seven years as the incident report form set out.[10]
[8]T48
[9]T50
[10]T52
41 The plaintiff did report the incident on 7 November, but because he had not made his claim he did not know and he was not sure of the date.[11] He agreed he told the nurse he had hurt his back but he did not think it would become this serious.[12]
[11]T50
[12]T52
42 The plaintiff did not know why Mr Di Vinci claimed the attendance on 29 October 2007 on the TAC.[13] He did not know who he was billing. The plaintiff could not remember if he told Mr Vinci if he hurt himself at work[14], maybe he did not tell him.[15] The plaintiff denied he did not tell him because he had not injured himself. He then did not think his situation was going to get bad.
[13]T41
[14]T42
[15]T43
43 The plaintiff denied he saw Mr Vinci on 29 October 2007 because his transport accident injury had got worse. The plaintiff was not sure what he told Mr Vinci, but the plaintiff did not have a WorkCover claim then.
44 The plaintiff agreed he made a TAC claim after the transport accident but he returned back to work on normal duties. He just claimed in case his back got worse.[16] He was not after any compensation.
[16]T44
45 After the transport accident, the plaintiff did have some pain in his back and it was bruised. After two or three weeks, he returned back to normal duties. TAC paid his expenses.[17]
[17]T45
46 The plaintiff accepted he had a sore back for some time after the transport accident.[18] He thought it was back pain, not lower back pain.[19] Maybe he had some pain, but he stressed it did not affect him working. [20]
[18]T93
[19]T94
[20]T94-95
47 The plaintiff did not know why Dr Gorgioski following various attendances after the transport accident, noted “lower back pain” because the plaintiff might have said, “maybe back pain” but never “low back pain”.[21]
[21]T97
48 The plaintiff denied he was getting progressively worse from 2000 to 2007. He had resumed work and was back doing normal duties.[22] He did not have lower back pain in 2000.[23] When asked about the twenty five or so attendances between the transport accident and the incident, the plaintiff said he might have mentioned to the doctor he had pain in his low back but he was not sure whether he indicated the back itself or just the lower back.[24] He explained he did not have continuous pains and troubles, so he continued working.
[22]T98
[23]T102
[24]T106
49 When asked about investigations of his back before the incident, the plaintiff said he had no problem with his back. He continued to work and do his normal duties. Maybe from time to time he had back pain but it did not stop him working.[25]
[25]T109
50 From time to time, such as in September 2006 when the plaintiff had pains and troubles, he had symptoms for which he saw Dr Gorgioski and it was likely he took medication.
51 The plaintiff was very satisfied with his treatment by Dr Gorgioski and the plaintiff could trust him.[26] The plaintiff could not recall telling Dr Gorgioski on 20 November 2007 that he hurt himself on 23 October as Dr Gorgioski recorded.[27] Maybe the plaintiff did not say anything to the doctor because he had not made the claim.[28] He was seeing Dr Gorgioski because of his back pain and because he did not think it was going to get serious.[29] The plaintiff thought that after two or three days the pain would go away.[30] He denied he did not tell the doctor because the incident did not happen.
[26]T54
[27]T56
[28]T57
[29]T87
[30]T88
52 The plaintiff did not know about the date but he did remember seeing Dr Gorgioski on the 22 October and then having been sent for a CT scan. He could not remember what he said to Dr Gorgioski on 20 November 2007.[31]
[31]T57
53 The plaintiff agreed that on the claim form he had completed his name, address and date of birth and Question 8, writing “back pain”, but Question 9 did not look like his writing. He definitely did not write 25 October 2007, as he did not write “7s” that way. He did not complete the date of the report of the injury or to the details of to whom he reported it.
54 The plaintiff agreed he signed the form on 27 November 2007 and he had made a declaration. He then said, maybe in fairness he did not understand everything or read everything properly.[32]
[32]T63
55 The plaintiff was asked about seeing Mr Barrett in late November 2007.[33] Whilst Mr Barrett noted the injury date was 25 October, that particular date was wrong.[34] The plaintiff did not blame the doctors or other people “but maybe when he did the claim form, it may be that they got the wrong date then.” This all happened because there was a mistake with the claim form.[35]
[33]T63
[34]T66
[35]T66
56 The plaintiff forgot to tell Mr Barrett about any previous back problem because he was in a lot of pain when he saw him.[36] He could not remember if Mr Barrett asked him. He had not hidden anything from Mr Barrett because Dr Gorgioski would have given him all the reports.[37]
[36]T67
[37]T67
57 The plaintiff was asked about the history recorded by Mr D’Urso of injury on 25 October. The date was wrong but the plaintiff thought everyone was going by that date. The plaintiff could not remember what he actually said to Mr D’Urso, but then said he did not know if he had said the 25th.[38] It was possible, but maybe not.[39]
[38]T68
[39]T69
58 The plaintiff denied he had reported on occasion that the incident occurred in October, not specifying a date, because it did not happen at all.[40] In April 2012, when he told Mr Doig “October 2007”, the plaintiff was not sure what was the correct date.[41] The plaintiff did not mention 18 or 25 October. He was not sure about the date.
[40]T73
[41]T75
59 The first affidavit was drawn up by the plaintiff’s solicitors and referred to a day in October. The plaintiff did not refer to 25 October in that document because that was an error.[42] 25 October was completely the wrong date.[43] The plaintiff did not remember why he had not said that in his affidavit.
[42]T78
[43]T79
60 When swearing his second affidavit, the plaintiff agreed it was necessary for him to be truthful but he did not take much notice of the date.[44] He used the words “I believe”, explaining his language is not that good but he thought it was the correct date.[45] The plaintiff had not made it up. He believed that for sure he did “danger himself there.”[46] He was not just having a guess.[47]
[44]T79
[45]T80
[46]T81
[47]T86
61 The plaintiff agreed he had not mentioned 18 October before the second affidavit, but everyone was using the 25th – the wrong date.[48] He confirmed he saw the four documents deposed to.[49]
[48]T81
[49]T84
62 The plaintiff was asked about attendances at Northend Medical Clinic on 19 and 26 October 2007.[50] He was not sure, but maybe he did go there then but for what, he did not know.[51] It was not his regular doctor. He had not given that clinic all the history.[52] Maybe he did not tell doctors at that clinic about his back, because he attended that clinic for another reason, because after his injury he saw Dr Gorgioski the next day.
[50]T88
[51]T91
[52]T92
63 The plaintiff just continued working after the incident.[53] He was not focussed on the injury and did not believe it was something serious.[54] He just endured and continued working. He did not want to stop work. He had a good job which he liked. When it was suggested to him if his back condition was severe he would have stopped working, he explained he tried to work and persisted and he was just hoping for the better.[55] The plaintiff was feeling the pains but painkillers helped him endure and continue up until then.
[53]T114
[54]T114
[55]T114
64 The plaintiff denied it was true that he did not hurt his back at all on the 18th, because he was still working and doing four hours overtime on the 25th. He kept working with painkillers until 19 November only,[56] having last done the crushing work on the 25th.
[56]T119
65 In re-examination, the plaintiff confirmed his movements when he hurt himself operating the can crusher at about 3 pm on the said date. The injury occurred before he saw Dr Gorgioski and before the scan.
66 The plaintiff was doing a lot of overtime and loved his work with the first defendant. The money was very good – more than very good, it was excellent.[57]
[57]T129
67 The plaintiff worked for the first defendant for twenty two years. He received a silver medal and a $750 gift voucher at David Jones.[58]
[58]T189
68 The plaintiff had been offered redundancy before the incident. He got visibly upset in the witness box explaining he might cry if he lost his job.[59] He told the first defendant he did not want a redundancy. He rejected the offer because he was too young, “it made him cry, it was a beautiful job.” He was not planning to stop work and retire in the near future.[60]
[59]T130
[60]T130
69 In October 2007, the plaintiff did not have any idea he would end up having two operations and not being able to work. He did not expect to have “any of this.”[61]
[61]T132
70 The plaintiff’s English is bad and he cannot write so the nurse gave him a hand filling out the form. He could not read handwritten notes. He confirmed what he had written on the claim form.
71 The plaintiff had not experienced the sort of pain he felt on 18 Octoberbefore that date. He had never had sciatica before and did not even know what the word meant.[62] The pain just got worse and worse but he did not think it was going to get that serious.
[62]T136
The Plaintiff’s treaters
Dr Gorgioski
72 In a report of September 2010, Dr Gorgioski noted that in the transport accident the plaintiff suffered a whiplash injury of his neck and lower back after which he recovered sufficiently and returned to work on 22 May 2000, working full time with the first defendant thereafter.
73 The plaintiff presented on 22 October 2007 with severe lower back pain, left sciatica with restricted movements. He was given analgesics and sent for a CT scan. Since then, the plaintiff had continuously complained of lower back pain radiating to his legs.
74 At the end of November 2007, the plaintiff’s condition deteriorated and he was given time off and referred to Mr Barrett, orthopaedic surgeon, who suggested surgery. Dr Gorgioski later referred the plaintiff to Mr D’Urso, neurosurgeon, who operated on the plaintiff’s back on 13 February 2008.
75 Dr Gorgioski noted the plaintiff was making a slow recovery but despite pain and restricted movement he returned to light work. Unfortunately, his condition deteriorated with lower back pain and sciatica and he was treated with local injections by Mr D’Urso, without much success.
76 The plaintiff had another back operation in June 2009, following which he still suffered form severe low back pain and restricted movements. He could not sit for a long time and because of his medical problems, he was offered a package.
77 Dr Gorgioski noted the plaintiff had also developed a Post Traumatic Stress Disorder, had sleeping problems and had been prescribed Avanza and Valium. He thought the plaintiff suffered a lumbar spine injury, more specifically to his L4-5 level which led to two operations.
78 Dr Gorgioski noted the plaintiff was very cooperative and honest and did not exaggerate his symptoms and he had made earnest attempts to continue working and followed the advice of his doctors. He thought then the plaintiff was unfit for any type of work.
79 In his most recent report of 15 January 2013, Dr Gorgioski confirmed his diagnosis and opinion.
80 In evidence in chief, Dr Gorgioski explained that he treated the plaintiff’s claim as a WorkCover case from the time he issued the first certificate on 24 November, certifying the plaintiff unfit for duties from 19 November 2007.[63]
[63]T158
81 Dr Gorgioski confirmed the plaintiff is a very co-operative and honest person and did not exaggerate his symptoms.[64] He had been treating the plaintiff for more than twenty years and was satisfied he knew him very well.[65]
[64]T154
[65]T155
82 In cross-examination,[66] Dr Gorgioski confirmed that after the transport accident, the plaintiff had only two weeks off and since then he had been working his normal full time job plus overtime.
[66]T156
83 In cross-examination, Dr Gorgioski agreed the first time he saw the plaintiff after the transport accident complaining of lower back pain was on 5 May 2000. He sent him for x‑rays and arranged a CT scan later that year. Dr Gorgioski also arranged for an MRI of the plaintiff’s lumbar spine in May 2001 and in November 2005.
84 Dr Gorgioski agreed that in 2005 he had written to the Transport Accident Commission (“TAC") advising the plaintiff’s low back pain had deteriorated and he required an MRI scan.[67]
[67]T165
85 Dr Gorgioski agreed that the entry of 22 October 2007 did not refer to the cause of the plaintiff’s pain. Dr Gorgioski would usually make enquiries of a patient in this regard. Dr Gorgioski confirmed he organised a CT scan and referred the plaintiff to Mr Vinici for physiotherapy treatment.
86 On examination on 20 November 2007, Dr Gorgioski noted the plaintiff stopped work finally on the 19th and had mentioned 23 October as the injury date. Dr Gorgioski explained he thought the plaintiff had mixed up the dates, confirming the attendance on 22 October and the CT scan on 24 October 2007. It was Dr Gorgioski’s understanding that the plaintiff was complaining of back pain and left sciatica on 22 October.
87 Dr Gorgioski agreed that the plaintiff did not tell him prior to 7 November 2007 that he had hurt his back in an acute incident at work.[68]
[68]T168
88 Dr Gorgioski was asked about an entry of 6 June 2006 which set out “no difference low back pain increasing because of work”. He accepted that by 2006, the plaintiff’s lower back pain was increasing because he was working.[69]
[69]T169
89 Dr Gorgioski agreed that the plaintiff’s back by that stage was getting worse than what it had been previously and he was endeavouring to manage that deteriorating condition by prescribing analgesics and painkillers, including Panadeine, Panadeine Forte, Panadol and DiGesic. He prescribed DiGesic on 12 September 2006, when he noted the plaintiff had persisting low back pain.
90 Dr Gorgioski stressed that it was not right to say medication was prescribed in the context of deteriorating back condition because at the same time, the plaintiff was suffering from shoulder problems, bursitis and left shoulder tears and he was still working. The medication was not prescribed solely for the plaintiff’s back condition.[70]
[70]T170
91 Counsel for the defendants went through entries in Dr Gorgioski’s notes from January 2001 until October 2007, a number of which identified low back pain and prescription of various medications.
92 Dr Gorgioski sent an invoice to the TAC for his treatment of the plaintiff’s transport injuries. The date on the invoice of 12 December 2006 was not in the clinical notes but there was an attendance on 22 December. Dr Gorgioski agreed that if he had billed the TAC for an attendance on 12 December, it would have been for treatment of the plaintiff’s back.[71]
[71]T175
93 When asked about seven attendances for which he billed the TAC between February and September 2007, Dr Gorgioski explained they related to the plaintiff’s transport accident, probably for his deteriorating back, but he was not one hundred per cent sure. When asked about a number of entries on the TAC invoice that did not have corresponding dates in the clinical notes, Dr Gorgioski explained there could be a file missing relating to that treatment.[72]
[72]T175
94 It was put to Dr Gorgioski that in the twelve months from October 2006 to October 2007, there were not less than eight occasions when he treated the plaintiff for the lower back, which did not appear in the notes. Dr Gorgioski said there could be notes missing. He accepted that his notes revealed he treated the plaintiff six times during 2006 for lower back pain.
95 Dr Gorgioski accepted he saw the plaintiff at least three times for lower back pain in 2004, twice in 2003, half a dozen times in 2002 and a couple of times in 2001. He agreed that according to his notes, the plaintiff attended eight times in the preceding twelve months before October 2007 because his back was getting progressively worse.[73]
[73]T176
96 Probably the last time that plaintiff attended prior to the said date was on 1 September 2007.[74]
[74]T177
97 Dr Gorgioski was asked about the WorkCover Authority Certificate in which he set out lumbar spine disc injury and no date or any specific incident.[75] He did not leave out a description of the incident because he was suspicious of the cause of the plaintiff’s injury. He explained it was not necessary to fill in the form completely. Maybe he said the plaintiff told him about having hurt himself at work on the 22nd, or maybe he did not. Dr Gorgioski did not remember.[76]
[75]T178; T180
[76]T181
98 Dr Gorgioski disagreed that the plaintiff’s condition had gradually deteriorated over the past seven and a half years since the transport accident, and whilst it was put to him that he previously agreed as to deterioration in 2005 and 2006, Dr Gorgioski explained the plaintiff was working full time two weeks after the transport accident.
99 Dr Gorgioski was very experienced in the compensation field and he could not ignore that something happened to the plaintiff’s lower back, which the plaintiff attributed to work in October 2007. Dr Gorgioski accepted this was the case.[77] The plaintiff was now talking about neurological symptoms and findings that were not previously present.
[77]T179
100 Something happened which brought the plaintiff to sciatica, to disc herniation, to two operations and being unfit for work. Dr Gorgioski totally accepted the plaintiff’s history. He confirmed the note of 20 November 2007 which set out “Severe sciatica, can’t walk or bend. Said he lifted 7 kg and twisted his low back on 23 October.”
101 Dr Gorgioski agreed that he advised Mr Barrett the injury occurred on 25 October 2007.
102 Dr Gorgioski was asked about the Claim Form which he assisted the plaintiff to complete and he also witnessed. Dr Gorgioski agreed the blue ink entries were completed by the plaintiff. Dr Gorgioski filled out the rest of Question 16 and assisted the plaintiff from that question on. He agreed he ticked “No” to the plaintiff having a previous personal injury claim. He explained that answer was not misleading because what he believed, when he filled out the form, was the back problem then related to the plaintiff’s work.[78] Dr Gorgioski conceded it was a mistake to write “No” because he had been billing the TAC for seven years.
[78]T186
103 In re-examination, Dr Gorgioski was taken to the entry of 18 May 2000 where there was mention of the thoracic spine, neck and cervical spine. On 3 June 2000, “neck pain, ++++” was noted.
104 Dr Gorgioski agreed he treated the plaintiff for neck pain over the years, and also shoulder problems. The plaintiff’ neck treatment was connected with the transport accident but treatment of his shoulders was not.[79]
[79]T188
105 On 3 March and 22 August 2006, the plaintiff was complaining about his shoulder and analgesics were prescribed. On 9 November 2006, it was noted neck pain was persisting, and on 9 February 2007, there was a neck complaint.
106 Whilst generally, in the entire period before the incident the plaintiff’s back pain deteriorated Dr Gorgioski was “not going to forget that the plaintiff was working full time and really deteriorated after October 2007.”[80]
[80]T189
107 Dr Gorgioski confirmed something had changed in relation to the plaintiff’s presentation on 22 October 2007. There was a changed disc from the 2005 investigation to that on 24 October 2007. For the first time the radiological reports mentioned the words “disc herniation” and “left L5 nerve root indentation”, which Dr Gorgioski would describe as a symptom of sciatica. That had not been present before 22 October and explained the plaintiff’s lower left symptomatology. It suggested developing new symptoms, not a presentation of ongoing degenerative process.
108 Dr Gorgioski confirmed the handwritten notes of 2006 and 2007. The only mention in the handwritten notes of back pan was on 6 November 2006. [81]
[81]T191
109 Following examination on 24 November 2007, Dr Gorgioski certified the plaintiff unfit for any duties from 19 December to 1 December 2007 in relation to a lumbar spine disc injury.
Dr Gorgioski’s Clinical notes
110 On 3 May 2000, Dr Gorgioski noted tender neck pain and low back pain and headaches from a car accident on that date.
111 There were further examinations in May 2000 and on 18 May there was an x‑ray of the cervical spine. Attendances continued throughout June, July and August with a CT scan of the lumbar spine L3, L4, L5 on 21 August and attendances in October 2000.
112 In January 2001, lower back pain was persisting. Lower back pain was noted on 3 April 2001 and Panadol was prescribed. On 10 May 2001, there was an MRI scan of the lumbar spine. In July 2001 there was lumbar spine tenderness and Panadeine Forte and Panadol were prescribed. On 1 October and 15 October lower back pain was persisting and on 9 November right hip and low back pain was noted.
113 There was a complaint of lumbar spine pain and Nurofen was prescribed on 9 December 2001. On 15 January 2002, neck extension was tender. Persisting low back pain was noted in February, May and June 2002.
114 On 18 June 2002, the plaintiff complained of mild right sided bursitis and 8 July there was some neck pain. The plaintiff attended on three occasions in September 2002 for right shoulder pain. In early 2003, there were two attendances for persisting neck pain which was again noted in September that year.
115 In November 2003, there was a note of persisting low back pain and in early 2004 complaints of persisting low back pain and the prescription of Panadeine Forte. Low back pain and stiffness was noted in September 2004 and next noted on 6 June.
116 In January 2004, there was lower back pain persisting stiffness +++ and Panadeine Forte was prescribed. In February 2004, there was a complaint of lower back pain.
117 In September 2004, there was some low back pain and some stiffness. The next mention of persisting low back pain was in May 2006. It was noted in June that low back pain was increasing because of work. That month, the plaintiff also complained of left shoulder pain. That problem persisted in August when the plaintiff also complained of persisting low back pain.
118 In September 2006 persisting low back pain and severe pain in both shoulders was noted and the plaintiff was referred for an ultrasound.
119 On 18 October and 9 November 2006 and February 2007 there were complaints of neck pain.
120 There was no other mention of any low back pain until the attendance on 22 October 2007 when severe low back pain and sciatica was noted. On examination, there was restriction of movement. Voltaren and Nurofen were prescribed and the plaintiff was referred for a CT scan.
121 On 20 November 2007, Dr Gorgioski noted, “severe sciatica, cannot walk, cannot bend. Sciatica. Lifted 7 kilograms and twisted at the same time. Experienced low back pain, sciatica. Left sciatica, 23 October 2007.”
122 On 24 November 2007, following examination, Dr Gorgioski certified the plaintiff was unfit for any duties from 19 November to 1 December 2007 due to a lumbar spine disc injury. He noted the plaintiff’s injury was consistent with his description of the cause. There was no description of the injury circumstances.
Mr Vinci
123 On 29 October 2007, Mr Vinci advised TAC the plaintiff initially attended for physiotherapy on 17 July 2000. He presented with a diagnosis of lumbar dysfunction. He attended intermittently until 23 August 2001 and found that physiotherapy reduced his pain and increased his quality of life.
124 The plaintiff had not attended since that date as there was an attempt to self manage his condition with an exercise program that was implemented in 2001.
125 However, the plaintiff contacted Mr Vinci’s rooms on 29 October 2007, reporting increased pain levels that were no longer bearable.
126 On physical examination, the plaintiff presented with decreased range of movement and an increase in pain on palpation. Mr Vinci noted the gap in treatment had obviously caused an exacerbation of the plaintiff’s pre existing injury which may be due to sitting postures and various factors of daily activities.
127 Mr Vinci advised the TAC that it was crucial the plaintiff had physiotherapy to ensure further deterioration was prevented and his symptoms were reduced.
128 Mr Vinci reported on 2 March 2011, that the plaintiff was attending for physiotherapy under his TAC claim until 23 August 2001.
129 When the plaintiff presented on 29 October 2007, his treatment was billed to TAC and paperwork was submitted in error. The plaintiff was treated only a few times but the error was brought to Mr Vinci’s attention and the claim submitted as WorkCover. He advised that the plaintiff did not have treatment under TAC for over six years.
130 In his report of 23 March 2011, Mr Vinci noted the plaintiff presented on 29 October 2007 with back pain. As there was no specific trauma that caused it, treatment was administered and paperwork submitted to the T.A.C.
131 Mr Vinci advised on careful consideration of CT scan results, however, and given that the plaintiff had been working in a very physical capacity for six years without limitation, it was deemed that his injury was unrelated to his transport accident and subsequent treatment was then submitted as WorkCover.
132 Mr Vinci advised, had the plaintiff been carrying his injuries from his transport accident seven years earlier, he would not have been able to work in his physical job for all those years. Mr Vinci thought any back injury sustained in the transport accident was well and truly stabilised and causing no limitation for several years by 2007. There was no doubt the plaintiff’s 2007 injury was a new injury independent of his transport accident injury.
133 Mr Vinci reported in May 2012 that the plaintiff first attended for physiotherapy management of his lower back condition on 27 March 2008, being referred by Dr Gorgioski. On that presentation, the plaintiff stated that in the later stages of 2007 he had been lifting a 7 to 8 kilogram can when he twisted and felt left sided back pain.
134 The plaintiff stated he continued to work in spite of his pain. He initially had some physiotherapy at work. The plaintiff was describing back pain and left side lower limb pain along the posterior aspect. His pain was causing significant limitation and he was referred to a specialist.
135 Mr Vinci noted the CT scan in October 2007 had demonstrated an L4-5 disc herniation with suspected L5 nerve root irritation and that the plaintiff underwent surgery with Mr D’Urso in February 2008.
136 Mr Vinci then detailed the plaintiff’s post operative progress and the treatment given by him.
137 Repeating his comments about the plaintiff’s ability to work for seven years after the transport accident, Mr Vinci noted the job with the first defendant was highly physical in nature.
138 Mr Vinci concluded had the plaintiff not been employed in that capacity that he was with the first defendant, he would not have sustained the injuries he did. He considered the plaintiff’s current position entirely attributable to that employment and he thought it was permanent in nature and the plaintiff would have no capacity to return to pre injury duties at any time.
139 In cross examination, Mr Vinci confirmed the first time he had seen the plaintiff since August 2001 was on 29 October 2007. He had previously treated him for the transport accident injuries for about eighteen months until August 2001, and TAC paid his fees.
140 Mr Vinci confirmed the letter to the TAC of 29 October 2007 in which he advised the plaintiff presented that day reporting increased pain levels that were no longer bearable. He assumed, at the October 2007 examination, the plaintiff’s condition was related to the TAC and he then put it down to the TAC.[82]
[82]T197
141 Mr Vinci agreed he had not recorded any specific trauma in October 2007. He agreed the usual procedure would be to ask a patient what was the cause of a problem[83] and he would have made a note of it if he had been told. He would not have made a claim to the TAC if he was told it was a work accident.
[83]T199
142 The plaintiff later advised he had injured himself at work but he did not do so on 29 October. The first Mr Vinci heard of a work connection was on 27 March 2008.[84]
[84]T200
143 Mr Vinci confirmed his professional view that the plaintiff’s current presentation was entirely attributable to his work with the first defendant.[85] He was relying on the plaintiff for his conclusion that his presentation was attributable to work – only in part – but he also relied on his knowledge of science and the nature of the plaintiff’s employment being physical and repetitive would contribute to a disc injury.[86]
[85]T202
[86]T203
144 Mr Vinci agreed the plaintiff never mentioned 18 October as the date of injury.
145 In re-examination, Mr Vinci explained his view that the October 2007 CT scan led him to the conclusion that the plaintiff’s injury was unrelated to the transport accident because of the nature of the disc injury.[87] It was disc herniation with L5 nerve root irritation that would cause significant leg pain.[88] That presentation would be consistent with what was reported on the CT scan. The left sided sciatica would have occurred in the short time leading up to the scan.[89] With that kind of disc injury, the plaintiff just would not be able to perform the duties that would have been required of him at the first defendant’s workplace.
Other histories
[87]T204
[88]T205
[89]T206
146 When Mr Barrett examined the plaintiff in November 2007, he was told that the injury took place on 25 October that year. The plaintiff also advised he had never suffered any significant back pain or sciatica in the past and his general health had otherwise been good. Mr D’Urso and Mr O’Brien also noted 25 October as the incident date.
147 In a letter of 12 December 2007 to Dr Michael Brighton-Knight, orthopaedic surgeon, Mr Barrett advised the date of injury was 21 October 2007.
148 When Mr Doig examined the plaintiff in April 2012, the plaintiff told him of an injury in October 2007 and that he was not completely sure of the date. The plaintiff told Mr Doig that after the transport accident his low back and neck settled fairly quickly and did not give him any ongoing problems.
149 On examination in April 2012, the plaintiff told Mr Nye that the incident occurred in October 2007. A similar history was given to Dr Sutcliffe when she examined the plaintiff in March 2012.
150 In April 2010, Dr Poppenbeek was given a history of 26 October 2007.
Other documentation
151 A printout from CGU Worker’s Compensation set out the plaintiff’s claim details as of 21 April 2012.
Lay evidence
152 On 14 January 2013, Mr Leszko deposed that he worked in the same department as the plaintiff.
153 Whilst he could not recall the date of the plaintiff’s injury, he did recall that when the plaintiff suffered his back injury they were working overtime together on the crusher machine. The plaintiff told him he had felt a sharp stabbing pain in the back. Work on the crusher was heavy and repetitive and following the plaintiff’s injury, this work was significantly altered.
154 In examination-in-chief, Mr Leszko confirmed he had worked for the first defendant for more than thirty years and the plaintiff was one of his co-workers.
155 The plaintiff told him he had a stabbing pain in his back when he rose up after he was moving the blocks.[90]
[90]T139
156 In cross-examination, Mr Leszko agreed that he understood the importance of reporting an injury in the workplace and he did not report any injury involving the plaintiff. [91]
[91]T140
157 Mr Leszko agreed the plaintiff finished work on 19 November 2007 and he had heard the plaintiff had surgery on his back. He agreed he had no reason to specifically recall what happened in 2007 until he signed his affidavit.
158 Mr Leszko confirmed he could not remember the date of any injury. He disagreed it was possible that the plaintiff was complaining of general back pain. The plaintiff kept working for a short time.[92]
[92]T141
159 Mr Leszko agreed that he was working with the plaintiff on 18 and 25 October 2007. The plaintiff did not work on the crusher after that period. Mr Leszko could not recall whether the plaintiff kept working or stopped that day, but then said he kept going to the end of the shift. He then agreed that he did not actually say anywhere in his affidavit he actually saw the injury, just that he could recall the plaintiff saying to him he had a sharp stabbing pain in his back.
160 Mr Leszko agreed that he and the plaintiff did not crush cans together after the plaintiff complained of the stabbing pain, but then said he did not know whether they both crushed cans after that date.[93] Mr Leszko then went on to say he crushed cans but the plaintiff did not, and confirmed that was the last time they crushed cans together. Mr Leszko agreed he did not see anything happening.[94]
[93]T143
[94]T144
161 In re-examination, Mr Leszko confirmed he did not crush cans with the plaintiff again after that incident. He then said he was not sure whether or not he and the plaintiff worked together on the crushing machine after the plaintiff complained of a stabbing pain.[95].
[95]T145
162 Mr Bittar swore an affidavit on 27 April 2012. He deposed that he did similar duties to the plaintiff and worked with him for many years, during which time the plaintiff was a good, hard worker doing ten to twelve hours’ overtime a week.
163 Mr Bittar described the plaintiff’s attempts to return to work after the first operation. He deposed to earnings in the range of $100,000 per annum in recent financial years.
164 Mr Neskovski swore an affidavit on 27 April 2012. He worked in the same area as the plaintiff. He always found the plaintiff to be very committed to his work and the plaintiff rarely knocked back overtime. Changes were later made to the crusher machine.
165 Neither Mr Bittar nor Mr Neskovski was required for cross examination.
The Plaintiff’s claim documents
166 The incident analysis form set out the incident date 25 October 2007, reported to Nurse Prestidge on 7 November 2007. The plaintiff was working on a can crusher retrieving blocks to stack on pallets and felt pain in the lumbar spine area. It was noted he worked for the first defendant for 27 years.
167 The claim for compensation signed 27 November 2007 set out the date of injury condition is 25 October 2007 at 3.00 pm That date, which was handwritten, was written over. It was noted the injury occurred retrieving blocks of steel. It was reported to the Nurse Vivienne on 25 October 2007.
168 The employer’s part of the claim form set out the date of injury condition as 25 October 2007, “retrieving blocks to stack on pallets and felt pain in the lumbar spine.”
169 By letter dated 15 January 2008, CGU advised the plaintiff in relation to an injury of 25 October 2007 that it had accepted the claim for weekly payments.
170 On 15 July 2010, the plaintiff was advised that on all the medical information available he continued to have incapacity, therefore unless his injury condition significantly improved and he was able to return to some form of work, he would be eligible for worker’s compensation payments until he was sixty five.
171 In blue pen was written the plaintiff’s name, address, date of birth, gender, date of the injury, condition and the date the injury was first noticed, the part affected being the back. In black pen were the plaintiff’s phone number and the rest of the answer to question 16 with half the word “retrieving” in blue and the other in black, “blocks to stack on pallets and felt pain”. Back pain was noted as the injury in blue pen. The signature, declaration and swearing clauses were in black pen, save for the date the form was forwarded to the agent.
The Defendant’s medical evidence
172 Typed notes set out the plaintiff attended the Northend Medical Centre on 19 October 2007 when he saw Dr Chawda who prescribed Coversyl tablets.
173 On 26 October 2007, the plaintiff saw Dr Yacoub at the Medical Centre. He prescribed Amoxil capsules and Tramadol Tablets.
174 There were handwritten notes of these attendances that were impossible to read.
Medico-legal examinations
175 Mr Rodney Simm first reported in September 2011 having been provided with extensive medical reports relating to the plaintiff’s treatment following the transport accident until October 2007.
176 Mr Simm noted frequent attendances in 2000 with Dr Gorgioski for low back pain following the transport accident. There were infrequent attendances in 2001, 2002 and 2003. There was reference to low back pain in February and September 2004 and in November of that year, there was a further exacerbation of low back pain which was said to have occurred spontaneously several weeks prior to that consultation.
177 In 2005, the plaintiff’s low back pain was reported to be deteriorating and he was investigated with an MRI scan on 28 June when multiple level degenerative disc desiccation was recorded. There was reference to low back pain in Dr Gorgioski’s notes in June, September and October 2006.
178 Mr Simm was provided with an entry in the first defendant’s in house physiotherapy file on 28 March 2007 referring to L4-5 back pain. The next medical record was made on 22 October 2007 by Dr Gorgioski when he noted severe low back pain left sciatica. The plaintiff attended to Mr Vinci on 29 October 2007. Mr Vinci noted a history of four weeks of increasing back pain because of an old injury. Mr Vinci requested liability commence the treatment under the original TAC claim.
179 The next presentation was to the first defendant’s in house medical centre on 7 November 2007, when the plaintiff said he had strained his back on 25 October retrieving blocks. The plaintiff’s explanation for not reporting the incident until then was he thought that the pain would go away but it had gotten progressively worse.
180 The plaintiff attended Dr Gorgioski on 20 November 2007, complaining of severe sciatica, giving a history of a lifting incident at work on 23 October.
181 The plaintiff told Mr Barrett in November 2007 that the injury had occurred on 25 October.
182 Mr Simm noted the CT scan of 21 November and the MRI scan of 30 November 2007.
183 Mr Simm thought the important diagnosis was multilevel lumbar disc degeneration with advanced changes at L4-5 which were eventually associated with a large left L4 lumbar disc protrusion. He noted lumbar disc degeneration preceded the onset of symptoms and was present at the time of the transport accident and from that time, the plaintiff had reported persistent and fluctuating lumbar back pain with multiple references to those symptoms in Dr Gorgioski’s medical records.
184 Mr Simm thought the transport accident was presumably responsible for a soft tissue injury to the lumbar back and it did not appear to have been a severe injury. Once those symptoms were initiated, the degenerative lumbar disc pathology remained symptomatic, fluctuating with periods of relative freedom from symptoms. Mr Simm thought the clinical course was more that of lumbar disc degeneration than an injury with persistent symptoms from that injury.
185 Mr Simm noted the first MRI scan of May 2001 showed changes that indicated the possibility of a poor prognosis and lumbar disc prolapse occurring. Those changes included degenerative disc desiccation but more importantly a central annulus tear at L4-5. He noted that tear appeared as a high intensity zone in the annulus and was not necessarily due to a traumatic tear. In the absence of a major rupture, he thought it more likely to be a degenerative fissure which showed that the annulus was deteriorating, as annular deterioration was a precursor for further lumbar disc protrusion.
186 That prediction proved to be correct on 28 June 2005, when a MRI showed left sided bulging of the annulus at L4-5 and there was now a left paracentral annular fissure and an increased likelihood of a left sided L5-S1 lumbar disc protrusion.
187 Whilst he had not seen the scan, Mr Simm reviewed the report of the CT scan of 21 November 2007, which stated there was a more focal disc herniation posteriorly to the left directed at the left S1 nerve root. In other words, the L4‑5 lumbar intervertebral disc had prolapsed or herniated by the time that investigation was undertaken and would explain the plaintiff’s symptoms of low back pain and left sided sciatica when he presented to Dr Gorgioski on 22 October 2007.
188 Considering the long standing and advanced degenerative state of the L4-5 intervertebral disc which had now prolapsed, Mr Simm noted further prolapse could occur without any further physical loading of the disc. In other words, spontaneous progression of the prolapse could have occurred or further prolapse could have occurred without any further physical loading of the disc.
189 Mr Simm thought as at 24 October 2007, the plaintiff had an established left sided L4-5 lumbar disc prolapse and there was almost certainly left L5 nerve root involvement as he presented to Dr Gorgioski with left sided sciatica. Mr Simm attributed essentially all of the pathology to progressive constitution lumbar disc degeneration. He did not believe the transport accident caused any significant pathological change to the course of the lumbar disc degeneration. He thought it possible the plaintiff did not sustain any injury to his back in the lifting episode on 25 October as the lumbar disc prolapse and associated left sided sciatica was already present. He considered the lifting incident may have simply been associated with symptoms rather than injury.
190 Mr Simm thought it likely in the absence of any alleged lifting incident, the advanced degenerative changes in association with the established left L4-5 lumbar disc prolapse were likely to lead to the clinical course which eventually resulted in the plaintiff requiring back surgery. As stated, he would not attribute the need for surgery to the transport accident but to a progressive constitutional degenerative lumbar pathology.
191 Mr Simm examined the plaintiff on 3 November 2011.
192 The plaintiff confirmed that in the transport accident he had suffered neck and low back pain but returned to normal duties a short time later. In the years that followed, he had recurrent low back pain and attended a general practitioner and had physiotherapy but it was never necessary for him to take time off work or be placed on modified duties.
193 When asked about his comment in his affidavit that the incident occurred on a date in October 2007, the plaintiff confirmed he was unable to remember the exact date of injury. He explained he experienced pain in his lower back, which was initially not severe and he did not think much of it. As far as he could remember, he saw Dr Gorgioski about two days after the pain came on and was investigated with a CT scan.
194 Mr Simm noted the plaintiff could not explain why the record of the work injury did not appear in the medical records until about two weeks later. The plaintiff stressed this may be because when the work injury occurred he did not initially think it was severe.
195 Mr Simm noted the CT scan and prescription of analgesic medication on 24 October 2007 and the plaintiff ceasing work on 19 November 2007.
196 Mr Simm was told by the plaintiff his pain had not improved over recent years. Mr Simm confirmed he thought the plaintiff had persistent lumbar disc dysfunction consequent upon long standing advanced L4-5 lumbar disc degeneration with an associated extruded left sided L4-5 lumbar disc prolapse which had been treated twice surgically. He thought there was evidence of an adverse chronic pain response which worsened to some extent following the second operation.
197 There were some non organic clinical signs but the plaintiff’s clinical presentation was otherwise that of a genuine, pleasant and cooperative man and Mr Simm believed there was an organic basis for his ongoing symptoms of low back pain and referred left leg pain, although there was evidence of amplification and modification of the pain and illness response from non organic and/or psychological factors.
198 Mr Simm thought the plaintiff had an entrenched pattern of symptoms and he expected the prognosis was for the plaintiff’s condition to persist.
199 That examination did not really alter the opinion Mr Simm expressed in his previous report and he noted the confusion regarding the date and exact nature of the injury remained unresolved. Mr Simm noted it had been determined the plaintiff was using the crusher on 25 October but considering he had a prolapse evident on 24 October, that information seemed of little relevance.
200 Mr Simm confirmed his view that the prolapse occurred as a part of the natural progression of the plaintiff’s underlying lumbar spinal condition.
The Defendant’s lay evidence
201 Vivienne Prestidge, a registered nurse employed by the first defendant, deposed on 1 October 2012, that the plaintiff visited the onsite medical centre on the morning of 25 October 2007 for a sore throat and cough.
202 The plaintiff next attended on 7 November 2007 when he reported a strain to the low back having occurred on the day of the attendance for his throat (25 October). He described when retrieving blocks to stack on pallets, he twisted and strained his lower back. The plaintiff had not reported it until then, as he thought the pain would go away but it had gotten progressively worse.
203 The entry on the morning of 25 October set out a complaint of a sore throat and cough. On examination, the plaintiff’s throat was red. The plaintiff re attended that afternoon.
204 The entry on 7 November 2007 set out the plaintiff reported strain to lower back. On 25 October 2007 “at 1500 hours working overtime that day, retrieving blocks to stack on pallets, twisted and strained lower back. Has not reported to anyone until now.” It was noted the plaintiff thought the pain would go away but it has gotten progressively worse.
[104]T270
271 It was submitted if the plaintiff was going to pursue this course, he would have committed to a date at an early stage and there would be no confusion. It is more difficult to perpetrate the fraud and therefore the perjury in changing the dates, in giving some confusion later on as to when precisely the incident might have occurred.
272 It was submitted it was curious where the plaintiff had an accepted transport accident claim for a back condition he would not have claimed his expenses on the TAC.
273 It was submitted that none of the evidence goes anywhere near supporting the contention pressed by the defendants that the plaintiff has waged a concerted and deliberate campaign of fraud and perjury in support of his claim to deceive firstly, WorkCover and then this Court.
274 Taking into account the lengthy duration of the plaintiff’s employment with the first defendant, his dedication to his job, his refusal of a redundancy, the high level of earnings and his work history since the transport accident, I find it very difficult to accept that, as counsel for the defendants submitted, the incident as described by the plaintiff did not happen at all, either on 18 or 25 October 2007, and that he is making it up.
275 Although it was clear from the plaintiff’s viva voce evidence that he was confused as to the incident date and had only relatively recently nominated 18 October in that regard, he did not do so dishonestly.
276 I accept that following working on the can crusher on the said date, the plaintiff suffered injury and then attended Dr Gorgioski on 22 October who arranged a scan two days later. This timeline was confirmed by the plaintiff in his affidavits and consistently in his history to doctors of the sequence of events.
Overview
277 Having found that the plaintiff suffered a compensable injury on 18 October 2007 - involving a prolapse of the L4-5 disc resulting in compression of the L4-5 nerve root requiring surgery, I reject Mr Simm’s view that such injury is a result of a degenerative process. These were new symptoms as Dr Gorgioski and Mr Vinci explained rather than the progression of a degenerative lumbar condition.
278 Mr Simm had largely based his view on the assumption that the plaintiff suffered injury at work on 25 October, after the report of sciatica to Dr Gorgioski on 22 October 2007 and the CT scan two days later showing disc herniation and nerve root involvement for the first time.
279 Mr Simm is the only medical practitioner of the view that the plaintiff’s condition resulted from the natural degenerative process and that conclusion was predicated entirely on no incident having occurred.
280 Every other medical practitioner who has commented supported the contention there was a lifting incident at work, which was productive of neural compromise. Further, Dr Gorgioski confirmed there was no complaint previously of left sided sciatica and something new had happened in October 2007 to cause the nerve root compression and sciatica.
281 Mr Vinci’s evidence was to a similar effect, and it was not a case of the plaintiff just getting out of bed one morning and feeling a sudden tearing.[105]
[105]T266
282 The only explanation ever posited by the plaintiff for the onset of back pain was work.
283 However, in this case, where there is a pre existing back condition, I must consider what the evidence discloses as to the prior condition of the plaintiff and determine whether the additional impairment resulting from the incident is serious and permanent.
284 In Petkovski v Galletti,[106] the Full Court of the Victorian Supreme Court accepted the proposition that –
“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused. …”
[106]supra
285 This approach was confirmed by the Court of Appeal and followed in AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz.[107]
[107][2012] VSCA 60
286 Thus, the plaintiff, to reach the threshold of serious injury, is required to establish the aggravation from the incident is permanent at the time of the hearing in its effects on the lower spine and the effects of the aggravation must be serious: Barwon Spinners Pty Ltd v Podolak.[108]
[108]supra
287 Counsel for the defendants submitted that the plaintiff’s low back had degenerated significantly between May 2000 and October 2007. The plaintiff had consulted Dr Gorgioski complaining of lower back pain 5 times in 2000 and 2001, four times in 2002, once in 2003, four times in 2004, once in 2005, six times in 2006 and approximately eight times in 2007.
288 When the plaintiff saw Dr Gorgioski on 22 October 2007, it was the ninth time in the previous year that he had treated him for low back pain.
289 Dr Gorgioski conceded that low back pain was deteriorating in June 2005 and June 2006.[109] He organised investigations of the plaintiff’s lumbar spine in 2001 and 2005 and had been prescribing medication on an ongoing basis since 2000.
[109]T168
290 I note however, the number of attendances on Dr Gorgioski relating specifically to low back in the twelve months or so before the incident is unclear. The last mentioned in the typed notes was in September 2006. In further handwritten notes Dr Gorgioski agreed the last pre incident attendance for low back pain was on 1 November 2006.
291 There were however a number of attendances in 2007 in relation to which Dr Gorgioski sought reimbursement from the TAC. These 8 attendances were set out on in the TAC payment summary dated 2010, the last of which occurred in September 2007.
292 Whilst in cross examination Dr Gorgioski accepted he may have treated the plaintiff in relation to his lower back on these occasions, he explained that he was treating the plaintiff for a number of transport accident injuries including his neck, details of which appear in the typed clinical notes.
293 Further and more significantly, Dr Gorgioski stressed that despite these attendances in relation to lower back pain, plaintiff was able to work full time in a heavy physical job with the first defendant without the requirement for modified duties or the need to take any time off work due to his back condition.
294 This point was also stressed on numerous occasions by the plaintiff. There was no interference with work or other activities until the incident at work on 18 October 2007. Thereafter he experienced significant back pain and left sided sciatica - the later for the first time. He was only able to work for about four weeks and subsequently underwent two operations with a third having been suggested. He returned to work for only a limited period in mid 2008 and thereafter he has been unable to work.
295 As counsel for the plaintiff submitted, whilst there were occasional attendances for lower back pain prior to the incident, there was never any complaint of sciatica. The plaintiff’s complaints and medication were to the lower end of the range prior to the said date.
296 I accept that the evidence does not support a deterioration leading up to the incident. There is a stark dichotomy between the plaintiff’s pre incident level of activity and the situation four weeks after the prolapse suffered in the incident, when the plaintiff had to give up the work he loved that he had been able to do for the last twenty two years and was able to do after the transport accident, having only two weeks off work and then seven years of work without apparent difficulty.[110] He then underwent two bouts of surgery and a suggestion of a third, with the real prospect of a fusion.
[110]T268
297 In these circumstances, I am satisfied the consequences of the incident injury itself meet the statutory test of seriousness.
298 It is not disputed the plaintiff’s claimed loss of earning capacity is to extent of forty per cent or more, both at the date of hearing and permanently thereafter using the formula set out in subsections (38)(e) and (f).
299 Further, in light of the concessions made by the defendant and my findings in relation to incapacity, I am satisfied that there is no retraining or rehabilitation that can be undertaken to alter the position of the forty per cent loss and the plaintiff has therefore satisfied the requirements of ss(38)(g).
300 As the plaintiff’s back condition has persisted for over five years with no significant improvement despite two surgical procedures, I am satisfied his impairment in relation thereto is permanent.
301 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering and loss of earning capacity.
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