Dolamovski v Fastline Logistics Pty Ltd

[2009] VCC 310

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION

SERIOUS INJURY

Case No. CI-08-01666

TODE DOLAMOVSKI	Plaintiff
v
FASTLINE LOGISTICS PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE SHELTON
WHERE HELD:	Melbourne
DATE OF HEARING:	16 and 17 March 2009
DATE OF JUDGMENT:	2 April 2009
CASE MAY BE CITED AS:	Dolamovski v Fastline Logistics Pty Ltd
MEDIUM NEUTRAL CITATION:	[2009] VCC 0310

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – Serious injury application – s.134AB – whether aggravation of existing injury – Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317 – Grech v Orica Australia Pty Ltd (2006) 14 VR 602 – Ansett Australia Ltd v Taylor [2006] VSCA 171.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G A Lewis SC with	Patrick Robinson & Co.
Mr R C Forsyth
For the Defendant	Mr R H Smith SC with	Herbert Geer
Ms M Tsikaris
HIS HONOUR:

Introduction

1 This is an application by way of Originating Motion seeking leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings for the recovery of damages in respect of an injury to his lumbar spine suffered by the plaintiff in the course of his employment with the defendant on 15 October 2004 (“the injury”) when he fell and strained his back (“the accident”). S.134AB(19)(a) of the Act provides that I must not give leave to bring the proceedings unless satisfied on the balance of probabilities that the injury suffered was a serious injury.

2 S.134AB(37) of the Act, so far as relevant, defines “serious injury” as follows:

“Serious injury means –

(a) permanent serious impairment or loss of a body function.”

3          The body function relied upon by the plaintiff is the lumbar spine.

4 The plaintiff seeks leave to bring proceedings in relation to consequences with respect to both pain and suffering and loss of earning capacity: see s.134AB(38)(b) of the Act.

The Issues

5          It is not in issue that the accident occurred nor that the plaintiff sustained the injury. What is in issue is whether there is a causal connection between the accident and the present condition of the plaintiff’s lumbar spine, that is, in the context of this application, the degree of aggravation, if any, of the condition of the plaintiff’s lumbar spine caused by the accident.

The Plaintiff’s Evidence

6          The plaintiff’s evidence consisted of three affidavits sworn by him on 20 November 2007, 10 March 2009 and 13 March 2009.

7          The plaintiff was born in Macedonia in January 1950 and thus is now aged fifty-nine. He migrated to Australia at age twenty-one. He had eight years of schooling in Macedonia and then worked on the family farm. He is married with two daughters.

8          Since arriving in Australia, he has done mostly manual type work with substantial periods when he was not working. In 1974 he returned to Macedonia for ten months for a holiday. He did not work while there. He again returned to Macedonia in 1978 for eighteen months and was conscripted into the army there. In 1982, he returned to Macedonia and stayed there for about one year. He did not work except for three or four weeks while there. He injured his back on three occasions in 1984 and was off work for a few years. From about 1989 to 1994 and 1995 the plaintiff was employed and towards the latter part of this period he was, on occasions, working part-time in another job as well. The plaintiff states that in October 1993, he injured his left hand and thigh at work. From 1994 or 1995 until 27 August 2004, he was unemployed. On that date he commenced work with the defendant. About approximately seven weeks later the accident occurred and he has not worked since. During this period of employment he was earning $534.00 per week gross.

9          An MRI scan of the plaintiff’s lumbar spine was performed on 16 February 2005. A report of that date states:

“1.	Grade l anterior spondylolisthesis of L5 on SI, secondary to bilateral L5 pars defects, resulting in bilateral L5/Sl foraminal stenosis and bilateral L5 nerve root impingement.
2.	Mild L4/5 lumbar canal stenosis, secondary to a central L4/5 disc prolapse on a background of a diffuse disc bulge and mild to moderate facet joint osteoarthritis resulting in right L5 nerve root impingement.”

10        The plaintiff states that as a result of back problems prior to the accident his pain was then more in his right hip whereas now it is in his low-back and into his legs. He states that on account of his back pain he is severely restricted in doing chores around the house, gardening and social activities. He cannot sit or stand for too long and has difficulty sleeping. He states:

“I feel that my life has come to a standstill and that the injury to my back

has dramatically altered my life.”

11        He also has pain in his right elbow and right knee but it is the back which causes him the most pain. Sometimes he has flare-ups of lower back pain. On 29 January 2009 he had such a flare-up and was taken to the Austin Hospital where he remained for three hours. He was given painkilling medication there and referred to a physiotherapist whom he has seen on a number of occasions since. He also attends an osteopath. He is presently taking Panadeine Forte and Panamax medication.

Medical Evidence

Before the accident

12        It is not in issue that the plaintiff injured his back at work on 17 April 1984. His general practitioner at the time, Dr John Lamont of Yarraville, in a report of 28 November 1984 to the plaintiff’s then solicitors, Galbally & O’Bryan, states that the plaintiff consulted him on 18 May 1984, stating that he hurt his back lifting a drum on the previous day and that he felt pain in the left sacroiliac region which was not particularly severe and did not radiate. He returned to work on 25 May 1984. On 13 June 1984 he again consulted Dr Lamont with a similar pain on the right side. It appears that there was no precipitating factor on this occasion. He again consulted Dr Lamont on 14 September 1984 stating that he had knocked his head on a crane and fallen, hitting his right hip. This caused his back problem to flare-up. An x-ray taken on 18 September 1984 showed:

“Grade I spondylolisthesis of L5 on S1 with a 5mm shift anteriorly of L5

on the body of S1 and mild narrowing of the L5-S1 disc space.”

13        Progress was slow and so Dr Lamont referred the plaintiff to Mr Robert Pianta, orthopaedic surgeon. In a report of 28 September 1984 to Dr Lamont he states:

“This 34 year old man seems to have suffered a significant back injury when he was lifting heavy drums back in May 1984. He now has low back pain with some right leg pain consistent with a possible disc disruption. The x-rays demonstrate a Grade I spondylolisthesis at L5 S1. It is therefore likely that he has aggravated this spondylolisthesis and requires treatment, initially with an exercise programme from the physiotherapist, swimming and if this does not help him then a period of time in a brace.”

14        In a further report of 14 December 1984 to Dr Lamont, he states:

“This chap has a very painful spondylolisthesis which is comfortable in the support, however, he cannot return to work as a Labourer. I have given him a script for some Clinoril tablets to see how we go. I shall review him in about 6 weeks time.

As you know, these take some time to settle and we usually try for a period of 12 - 15 months before we consider surgery. This would involve a lumbosacral fusion.”

15          In a further report of 11 April 1985 to Dr Lamont, he states:

“This chap was reviewed on the 4th April and stated that only the week beforehand he was in fact much worse with severe pain developing in the back after sitting and relaxing.

He was still very tender but has a straight leg raising to 75o and normal neurology.

The x-rays of September 1984 re-demonstrate the spondylolisthesis at L5. Again I advised a fusion which would need to be preceeded (sic) by discogram.

I have asked him to be reviewed in 3 months time then he is to give me an answer regarding surgery. I hope the Tegretol you prescribed help his constant headache although I am sure that this is the development of functional symptoms which I find so frequently occurring once the solicitors are involved.”

16        In a further report to Dr Lamont of 25 July 1985, he states:

“Tode returned for a review, however again is still indecisive about having surgery. He has a symptomatic spondylolisthesis which I believe at this stage should be considered for spinal fusion. There is really little else that can be offered. In the meantime he cannot work and the situation is unlikely to change.”

17        Dr Lamont sought a second opinion from Mr Chris Haw, hand and orthopaedic surgeon. In a letter of 6 February 1986 to Mr Haw, he states:

“In April I985 it was recommended that he have a fusion operation probably preceded by a discogram. To me this seemed a reasonable course in view of the persisting symptoms. However Mr Dolamovski is completely opposed to surgery (despite the fact that he complains vigorously about his ongoing pain).”

18        Mr Haw saw the plaintiff on 1 April 1986 and in a report of that date to Dr Lamont, he states:

“… My opinion is that at the present time this man’s motivation is not such that he would do well by operative treatment. There are many overlay signs and symptoms which indicate to me a desire for secondary gain.

It is my opinion that he is indeed having symptoms from the anomaly in his lower lumbar spine, that it is essential for him to resume work for a period of at least three to six months, and if his symptoms are then severe and disabling the question of surgery could be re-considered as quite clearly if one was certain that his disability was truly significant, the operation would be indicated and would be highly successful.

I have explained this to him in very direct terms and under no circumstances would I consider him for surgery unless he did in fact resume work for this type of period in advance of any consideration of surgery. It appears that the medical-legal aspects of his problem are predominant and will probably stay so.”

19        As appears, the plaintiff had a serious back problem in 1984 and had a few years off work as a result.

20        In a letter to Galbally & O’Bryan of 18 March 1986, Dr Lamont states that although he and Mr Pianta are both of the view that a spinal fusion operation is necessary, the plaintiff “flatly refused” to have such surgery. He further states:

“His employer has bent over backwards to provide suitable light work for Mr Dolamovski. This, Mr Dolamovski has flatly refused to even consider.”

21        It will be noted that both Mr Pianta and Mr Haw refer to the presence of non- organic factors in the plaintiff’s presentation. The comments of Dr Lamont in a letter to Galbally & O’Bryan of 18 March 1986 taken in the context of the lengthy periods in Macedonia in 1974 and 1982 when the plaintiff did little work, suggest that the plaintiff had an aversion to work.

22        Mr Pianta saw the plaintiff on 9 February 1994. In a report to Dr Lamont of 10 February 1994, he stated:

“My opinion remains pretty much as it was then. This fellow has gone on for another ten years and managed quite well. He now basically is seeking support for what I understand to be an Invalid Pension. I do not believe he is at that stage.

On mentioning surgery to him again it seems as though he may be willing to proceed.”

23        The plaintiff did not in fact have a spinal fusion. Again, the comment of Mr Pianta that the plaintiff was seeking an invalid pension, although Mr Pianta thought this inappropriate, suggests an aversion to work.

24        Dr Lamont’s clinical notes have been tendered in evidence. There is a gap between 8 September 1986 and 2 March 1993 which has not been explained. An entry in the clinical records of 12 January 1994 shows the referral to Mr Pianta in 1994, and later in 1994, reference to lumbar pain and certificates as to his incapacity for work. For example, on 5 December 1994, he was certified as unfit for work until 9 January 1995 on account of lumbar spondylolisthesis. Thereafter, certificates as to the plaintiff’s incapacity for work are regularly given for three-month periods. For example, on 4 March 1996, a certificate was given until 1 May 1996 on account of “lumbar back injury”, “lumbar spondylolisthesis”. There was also a comment on that occasion that the plaintiff was suitable for jobs with no bending or lifting and that he was to avoid prolonged standing or sitting. On 20 August 1996, the clinical notes refer to the plaintiff’s back and the giving of a certificate until December 31. An entry for 8 November 1996 states, “Back much the same”. An entry for 24 November 1999 states, “Back stiff and sore in a.m.”.

25        Mr Lewis, Senior Counsel, who with Mr Forsyth appeared for the plaintiff, submitted that Dr Lamont’s clinical notes also refer to the plaintiff’s neck and that the incapacity certificates may have been granted in respect of the neck rather than the lumbar spine. A close examination of the clinical notes, in my view, shows that the lumbar spine is by far the main cause for the certificates.

26        In any event, it is clear from Dr Lamont’s clinical notes that the plaintiff was suffering from a continuing lower back problem over the period 1994 to 1999.

27        On 8 May 2002, Dr Lamont wrote a referral letter to Dr Richard Travers, rheumatologist. In the letter it states that the plaintiff, “has been having recurring episodes of pain in the occipital region which seems to originate in the right trapezium muscle. He has ongoing lumbar back problems which have been treated conservatively”.

28        An x-ray of the plaintiff’s lumbar spine was performed on 16 August 2002. A report to Dr Lamont of 17 August 2002 from the radiographer states:

“Spondylolisthesis at L5-S1 with mildly increased anterior subluxation of L5 compared with the previous examination. Moderately severe degenerative change has developed at the L5-S1 disc since the previous examination.”

29        In a report of 13 September 2002 to Dr Lamont, Dr Travers states, after noting that the plaintiff had not worked for seven years:

“The x-rays of his sacroiliac joints are normal and the ESR is only 5mm, so I think that everything can be explained by the spondylolisthesis. The buttock pain seems to have settled down, but he still has difficulty putting his right sock on in the mornings (his hips are normal).

On the x-rays there doesn’t appear to have been much increase in the degree of forward slip from 1984 to 2002, but there has been a little more narrowing of the disc space. From the point of view of working as a labourer, I think it is reasonable to say that he is not able to do it. I am not concerned about his neck problem, which is stable, but I think his back has the capacity to deteriorate and work which involves heavy lifting or twisting, or repetitive bending, is out of the question. The difficulty is that there just doesn’t appear to be any light work available for him.”

I note that Dr Travers’ concern is about the plaintiff’s back rather than his neck
and that he states that the plaintiff is only suitable for light work.

30        In summary, prior to the accident and since 1984, the plaintiff had serious problems with his back which necessitated his having considerable time off work.

After the accident

31        On the day of the accident the plaintiff was seen by Dr Sleaby, a general practitioner practising in St Albans. He complained to him of a stiff back with muscle spasm. Shortly thereafter, Dr Ansari of the same clinic took over the care of the plaintiff and has been his treating general practitioner since and sees him regularly.

32        Strangely, the plaintiff had Dr Lamont continue to treat him for his neck and other ailments but did not have him continue to treat his lumbar spine condition which he had been treating since 1984. Quite surprisingly, the clinical notes of Dr Lamont for 20 October 2004 show a consultation with respect to neck pain and haemorrhoids but without mention of the back injury. In fact the only mention in Dr Lamont’s clinical notes of back pain after the accident is on 13 April 2005.

33        A report of an x-ray on the plaintiff’s lumbar spine performed on 15 October 2004 at the request of Dr Sleaby states:

“Views of the lumbar spine demonstrate five lumbar type vertebrae. There is loss of vertebral disc space height at L5/S1 with anterior listhesis of L5 on S1 of approximately 5mm. There is end plate osteophytosis seen at L3 and L4 at their superior aspects. Minimal vertebral body height loss at …(illegible). The spinous processes, pedicles and sacro-iliac joints appear symmetrical.”

34        A CT scan of the lumbosacral spine was performed on 3 November 2004. A report of that date states:

“CONCLUSION

1. Grade I anterior spondylolisthesis of L5 on S1, secondary to

bilateral l5 pars defects,

2.      Mild L4/5 lumbar canal stenosis secondary to a central and right L4/5 disc prolapse on a background of a diffuse disc bulge ?right L5 nerve root impingement.

3.      ?bilateral L5/S1 foraminal stenosis, secondary to a diffuse L5/S1 disc bulge and the aforementioned anterior spondylolisthesis. ?bilateral L5 nerve root impingement.”

35        Dr Ansari has provided a number of reports to the defendant’s insurer and the plaintiff’s solicitors. In a report of 6 December 2004, he states:

“This patient sustained a musculo-ligamentous strain of the lumbar spine with epicondylitis of the right elbow from the injury at work on 15 October 2004. The clinical findings are consistent with the history given.”

36        In a report of 3 May 2005, he states:

“This patient was diagnosed as having sustained a musculo-ligamentous strain of the lumbar spine with possible disc disruption. The impingement is the cause of the pain in the lower limb, and this together with the spondylolisthesis is likely to have been aggravated by the fall on 15th October 2004. Also, the central L4/5 disc prolapse causes some impingement of the right L4/5 nerve root. The patient also has epicondylitis of the right elbow from the injury at work on the 15th of October 2004. The clinical findings are consistent with the history given.

This patient has no capacity for his pre-injury duties. He has capacity for light duty jobs in which no lifting, pulling or pushing is required. He also has to be careful with his right elbow. …”

37        In his latest report of 9 February 2009 to the plaintiff’s solicitors, Dr Ansari states that although the plaintiff was complaining of pain in his right elbow and right knee, his lower back was his main problem, which tended to flare-up on occasions. It was his view that the plaintiff had no capability to perform full- time work even if given light duties.

38        Although Dr Ansari had the pathology reports from after the accident which show the presence of spondylolisthesis, he makes no reference to the plaintiff’s pre-accident history. He was, it appears, not privy to earlier pathology reports or the opinions of Doctors Lamont and Travers, Mr Pianta or Mr Haw. He shows no indication that he was aware of the certificates of incapacity for work given by Dr Lamont over the years preceding the accident. Presumably the plaintiff did not tell him of his pre-accident history since otherwise he would surely have referred to it in his reports. His opinion, so far as it relates to the causation issue, therefore needs to be read with considerable caution.

39        Dr Lesley Koadlow, rheumatologist, saw the plaintiff on 26 October 2004 on referral from Dr Sleaby. He provided a report dated 23 February 2005, after he had seen the MRI films and a report of that date. In the report he states:

“On 23rd February 2005 I received the MRI films and report which is enclosed. I noted that the spondylolisthesis at L5 S1 has resulted in bilateral L5 S1 foraminal stenosis with bilateral L5 nerve root impingement. This impingement is the cause of his lower limb pain and this and the spondylolisthesis is likely to have been aggravated by his fall on 15th October 2004. Also the central L4/5 disc prolapse causing some impingement of the right L5 nerve root is another cause for lumbar and right lower limb pain. It is also likely that the fall aggravated the effect of osteoarthritic changes to the right L5 nerve root and added to the impingement of the nerve root.”

40        He expresses the view that it is unlikely that the plaintiff has any present capacity for paid employment. He concludes by stating that the plaintiff’s “condition and incapacity result from the injury at work on 15 October 2004”. Again, although he was aware of the MRI of 23 February 2005, he was not, it seems, aware of the plaintiff’s prior history and his views too are tainted by this fact

41        Dr Alex Stockman, rheumatologist, saw the plaintiff on 5 September 2008 and 4 March 2009 on referral from Dr Ansari for an opinion regarding his back pain and muscle spasms. In a report of 4 February 2009 to the plaintiff’s solicitors he states:

“Mr Dolamovski’s lumbar back pain is likely to be due to degeneration and spondylolisthesis at L5/S1. The reason for recent flare-up of this pain is unclear but it is not uncommon for patients to suffer from such flare-ups having radiological evidence of lumbar disc degeneration with spondylolisthesis.

. . .

It should be noted that I only saw him on one occasion, during a flare-up of his back pain and at that time he was unfit for any employment. However, this may be a temporary set back. I was more concerned in helping him getting over the flare-up and I didn’t get the feel about the level of pain and disability during the preceding 4 years since his injury. Therefore, it is not possible for me to give any opinion about the future capacity for employment or prognosis in general after the one visit. …”

42        He was then forwarded a number of reports of Mr Peter Kudelka and a report of Mr Ian Jones dated 2 February 2009, to which I refer presently. In a report of 10 March 2009 to the plaintiff’s solicitors, he states:

“Plain x-rays of the lumbar spine performed on 16/08/2002 (before his accident at work) shows spondylolisthesis at L5 S1 which has increased since his previous x-rays in 1984. Moderately severe degenerative changes are seen at L5 S1. To my knowledge no CT scan of the lumbar spine was performed at that time.

Report of x-rays of the lumbo-sacral performed on 15/10/2004 (on the day of the injury) shows similar changes to August 2002 but there is also mention of end plate osteophytosis at L3 and L4 with minimal vertebral body height loss at L1 (unlikely to be of any significance).

. . .

I am of the view that Mr Dolamovski’s back pain is likely to be due to degeneration of L4/5 S1 disc, probably secondary to longstanding spondylolisthesis. The prolapsed L4/5 disc can also be contributing to his back pain in the right leg.

The L4/5 disc pathology or even degeneration of L5 S1 disc, which has produced neural foraminal narrowing at L5 S1 could be the cause of recent right leg pain. Neural compromise at both levels can cause pain into the right foot by pressing on L5 nerve root.

Because CT scan of the lumbar spine is not available before the injury in November 2004 I cannot say whether L4/5 disc pathology is related to injury on 15/10/2004.

It is probable that exacerbation on 29/01/2009 may have caused further disc prolapse at L4/5 or exacerbated spondylolisthesis at L5 S1.

Mr Dolamovski has had severe flare up of his back pain in the last 6 months. It is not possible to say whether this is related to the injury of 15/10.2004. However, I feel that this is rather unlikely because he did not have any severe exacerbations between October 2004 until about August 2008.

Finally, reading the reports from Dr Ansari and Mr Kudelka I am of the view that on balance the current incapacity for work is to a degree related to the incident at work on 15/10/2004 (very approximate estimation of 30-40%) but is mainly related to longstanding spondylolisthesis at L5 S1 and disc degeneration at this level.

. . . .”

43        While Dr Stockman’s conclusion is favourable to the plaintiff, again it suffers from lack of a full history of what occurred prior to the accident.

44        Mr Kenneth Brearley, orthopaedic surgeon, saw the plaintiff on 15 January 2009 at the request of the plaintiff’s solicitors. In a report of that date, he stated:

“He is suffering from mechanical lumbar back pain secondary to L4/5 and also lumbosacral internal disc disruption with long-standing, pre-existing lumbosacral spondylolisthesis with right and left foraminal stenosis and possible bilateral L5 nerve root impingement. … The injuries are quite consistent with the stated cause.

. . .

He is not able to carry out any manual labour because of the back injury. He could do some light work, for example light cleaning, preferably in a part-time capacity. However given his age of fifty-nine years, his difficulty with the language, his work experience and his ongoing pain, there is no likelihood of any employer being prepared to offer him any work at all now or in the future.”

45        He at least was aware of the 1984 injury to the plaintiff’s lower back and right hip at work and that he was off work for about four years thereafter. He also had the x-rays of the lumbar spine of 18 September 1984 and 16 August 2002, as well as the MRI of 16 February 2005. It appears he did not have a history of the plaintiff not working for some years prior to the accident and of the incapacity certificates given by Dr Ansari. Nor was he aware of the contrary opinions of Mr Peter Kudelka and Mr Ian Jones, to which I now turn.

46        Mr Peter Kudelka, orthopaedic surgeon, examined the plaintiff for the defendant’s insurers on 6 December 2004, 6 June 2005, 23 January 2006, 14 August 2006 and 12 February 2008. Although he was aware that the plaintiff suffered a back injury in 1984, it appears that he had none of the pre-accident medical reports nor a history of the plaintiff’s continuing complaints of back pain to Dr Lamont and considerable periods off work for which incapacity certificates were given prior to the accident.

47        In a report of 10 March 2005, Mr Kudelka states:

“My opinion is that the effects of this patient’s original injury have subsided, both with respect to his right elbow, right knee and lumbar spine, and that the present symptoms in his back relate to his age and the constitutional lumbo-sacral spondylolisthesis. I agree that the patient is fit for restricted employment avoiding strains on his back. I do not believe that this restriction, which is appropriate, relates specifically to the 15.10.2004 incident.”

48        Mr Kudelka examined the plaintiff on 23 January 2006 and in a report of that date he states:

“His back has virtually normal movement – flexion 80 degrees, extension, lateral flexion and rotation all in the 20 degree range. Reflexes were brisk and equal and muscle power normal.”

49        In his latest report of 14 February 2008, he states:

“This patient suffered a contusion of the outer aspect of the right elbow, a contusion of the right knee and a mechanical strain to his lumbar spine in an accidental fall at work 15 10 2004, aggravating a previously unsuspected abnormality at the lumbosacral junction due to a neural arch defect known as a spondylolisthesis.

…

The patient’s described symptoms are consistent with the incident 15.10.2004 but I would have expected such an incident to have a transient effect only.

(a)	The general nature of his job as a Labourer would cause symptoms from his lumbosacral spondylolisthesis condition.
(b)	The incident 15.10.2004 was in my view one of temporary aggravation of his back and transient with respect to the right elbow and right knee.
(c)	The pre-existing condition is the lumbosacral spondylolisthesis, a developmental condition causing weakening in the lower lumbar spine and a propensity to mechanical injury.
(d)	There are no known hereditary risks. There is no abnormality in the lifestyle of the worker. There is no known abnormality in the activities of the worker outside the workplace.

I believe the patient’s employment has contributed to his persistent back symptoms, but would have considered the effects of the fall 15.10.2004 as transient, i.e. lasting perhaps some weeks only. I would not have anticipated this incident leading to any work related permanent impairment.

…

I do not think this patient has any permanent impairment:

(a)	Related to the incident at work 15.10.2004, or
(b)	Any other factor.

With respect to his employment capacity:

(a)	The patient has a reduced capacity for work with respect to bending, stooping and lifting weights in excess of 5-10 kgs. He says he has not been able to find suitable employment in the three and a half years since the incident but I note he has a forklift licence and previously spent fifteen years as a Forklift driver with Redbook Carpets.
(b)	Restrictions for future employment should be avoidance of long hours on his feet, prolonged sitting and the avoidance of bending, stooping and lifting weights in excess of 5-10 kilograms.
(c)	I believe the patient is permanently incapacitated for physically demanding work involving strains on his back.”

50        In summary, Mr Kudelka, who has seen the plaintiff on five occasions between 6 December 2004 and 12 February 2008, is of the view that any aggravation to the condition of the plaintiff’s lumbar spine caused by the accident was temporary and not permanent as required by the definition of “serious injury” referred to above.

51        Mr Ian Jones, orthopaedic surgeon, examined the plaintiff for the defendant’s solicitors on 30 January 2009. It will be noted that his examination took place on the day after the flare-up of the plaintiff’s back pain when he went to the Austin Hospital. He has provided reports dated 2 February 2009 and 5 March 2009. Mr Jones had the advantage of being the only doctor who examined the plaintiff after the accident who was provided with all of the pre-accident medical reports referred to above.

52        In his report of 2 February 2009, he states:

“This man suffers from longstanding pre-existing congenital spondylolisthesis at the L5/S1 level of his lumbar spine. This presents (sic) initially some 26 years ago following an injury at work resulting in a fall following which he was off work for some two and a half to three years. …

…

I note a report of 17.08.02 including (sic) mildly increased anterior subluxation of L5 compared with previously (sic) examination. Moderately severe changes have developed at the L5/S1 discs. Plain x- rays of the 15.10.04 suggest that early degenerative changes were present both [at] the L3 and L4 levels of the lumbar spine in addition to the pathology at the L5/S1 level. A CT scan taken on 03.1.04 described changes at the L4.5 level secondary to a right L4/5 prolapse with possible right L5 nerve root impingement. This is confirmed on MRI- scan on 16.02.05 but identifies mild to moderate facet joint arthritis compromising the right L5 nerve root, which would suggest these changes to have been present and developing for a number of years prior to the reported injury of October 2004.

. . .

At the present time this man is unfit for work. It would appear as though in the past he has been deemed fit to undertake restricted duties prior to the event of 15.10.04.

. . .

I do not believe that Mr Dolamovski has suffered from the effects of any aggravation caused by the incident of 15.10.04. Various time in his past and particularly some 26 years ago with the onset of his back condition and diagnosis of the cause of his complaints his incapacity at that stage would in my opinion have been the same as he is describing at the present time.

There has been some deterioration and x-ray changes in that in addition to the pathology at the L5/S1 level there have been secondary changes at the L4/5 and to lesser extent the L3/4 disc level. The L4/5 disc pathology may well be the cause of his recent exacerbation of right leg pain.

It is possible that the incident of 15 October may have transiently aggravated his lower back condition but I believe that the contribution to his overall complaint[s] at the present time are insignificant.”

(My emphasis).

53        In that report, he helpfully comments on the condition of spondylolisthesis as follows:

“The course of the condition of the spondylolisthesis is extremely variable. Many patients can go though life without even being aware that they suffer from the condition. On other occasions, the condition can be troublesome taking the form of intermittent discomfort bordering on pain in the back.

In more severe situations, the patient can be troubled by disabling back pain and with the natural progression of the condition and or associated disc pathology frequently uni- or bilateral sciatica can be present. Certainly patients engaged in heavy physical employment are more likely to experience back pain and a progression in the back condition resulting in recurrent back pain or continuous back pain and the development of sciatica involving one or both legs.”

54        Subsequent to this report, he was provided with copies of the reports of Dr Brearley dated 15 January 2009 and of Dr Stockman dated 4 February 2009. having read those reports, he commented in his letter of 5 March 2009:

“1	The material included in your referral letter of 03.03.09 does not cause me to change my opinion particularly in regard to the degenerative changes identified at the L4/5 discs which I believe were present prior to the reported injury of 12.10.04.
2	With regard to the report of the CT scan, dated 17.08.02 the presence of a limbus of the vertebrae most likely represents a long-standing developmental change in the growth in this man’s vertebral body. This could represent either a variation in the growth in the ring epiphysis of the vertebral body or an old anterior disc herniation as is suggested in the report.
3	Degenerative disease changes are best identified on MRI scan. A CT scan will certainly demonstrate the presence or otherwise of disc-protrusion or disc bulging and give an accurate representation of the dimensions of the spinal canal. I am unsure of the reasons why Mr Dolamovski did not undergo an MRI scan prior to the 15.10.04. It may simply be explained by the fact that for this type of investigation no rebate is offered to the patient if a General Practitioner orders the investigation compared with if a specialist orders the investigation.”

55        In summary, Mr Jones, having been provided with all relevant pre-accident and post-accident medical reports and information except Dr Stockman’s report of 10 March 2009, is of the same view as Mr Kudelka, namely that the effect of the aggravation of the plaintiff’s condition was transient and not permanent.

Discussion and Conclusions

56        As indicated, the main issue for my determination is whether there is a causal link between the accident and the present condition of the plaintiff’s lumbar spine.

57        S.134AB(38) requires me to focus upon consequences of the injury with respect to pain and suffering and loss of earning capacity.

58 In s.5 of the Act “injury” is defined to include “aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease”. The plaintiff alleges that there was an aggravation of the pre-existing condition of his lumbar spine.

59        In Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317, Ashley JA, with whom the other members of the Court agreed, indicated that, amongst other matters, the plaintiff needed to have established that he had “suffered a compensable injury”.

60        Then in Grech v Orica Australia Pty Ltd (2006) 14 VR 602, at 616, Ashley JA stated:

“. . . Most often, a consequence is compensable if it ‘results from or is materially contributed to by’ an injury. The concept of material contribution was a later addition to workers compensation legislation. But even before that addition, the causal connection required by the words ‘results from’ had been construed to require much less than that injury be the sole cause of a consequence. . . . It is enough to say that the Act, as with its predecessors, contemplates that a consequence may have a multiplicity of causes, including a multiplicity of compensable injuries.”

61        Thus, my task is to determine whether there is any aggravation of the condition of the plaintiff’s lumbar spine which was materially contributed to by the accident and, if so, taking account of the consequences both with respect to pain and suffering and loss of earning capacity, whether the plaintiff has suffered a serious injury as defined in sub-section (37), as expanded upon by sub-section (38).

62        Mr R Smith, Senior Counsel, who with Ms Tsikaris appeared for the defendant, submitted that I should give little weight to the medical opinion which is supportive of the plaintiff since the reporters were not given a full history of what had occurred prior to the accident. They may well have assumed that the plaintiff was symptomless prior to the accident as Mr Jones has indicated was quite feasible with spondylolisthesis.

63        Mr Smith also commented upon the failure to have the plaintiff’s lumbar spine examined by Dr Lamont who would have been in the best position to determine whether there was any aggravation of the condition of the plaintiff’s spine caused by the accident. As mentioned, he was aware that the plaintiff had injured his back in the accident. He also commented upon the unusual circumstance whereby Dr Lamont was treating the plaintiff’s cervical spine but not his lumbar spine. Mr Lewis submitted that it was understandable that Dr Ansari continued to treat the plaintiff’s lumbar spine after the plaintiff had gone to him initially and he had arranged radiological tests. I do not find this explanation convincing.

64        I think there is merit in Mr Smith’s submissions and comments.

65        As indicated, Dr Stockman, a rheumatologist, expresses a different opinion to that of Mr Kudelka and Mr Jones, but gives no reason for doing so, although he had the latest report of Mr Kudelka and the 9th February 2009 report of Mr Jones. There is no indication, however, that he had any of the pre-accident medical reports. It is to be borne in mind that Mr Kudelka examined the plaintiff on five occasions over a period of three years.

66        In all the circumstances, I accept the opinions of Mr Kudelka and Mr Jones that the effect of the aggravation of the plaintiff’s lumbar spine in the accident was transient and not permanent and that the plaintiff’s lumbar spine is in a similar condition to what it would have been had the accident not occurred.

67        So far as loss of earning capacity consequences are concerned, true it is that the plaintiff was able to work for seven weeks prior to the accident in what he describes as heavy and repetitive work, and the thrust of the medical evidence is that he is now only capable of light work, if even that. Mr Jones is of the opinion that he is no longer capable of working and other doctors who examined him, for example, Mr Brearley, are of virtually the same opinion from a practical viewpoint. However, in September 2002, Dr Travers was of the view that the plaintiff was only capable of light work. Further, the plaintiff is suffering from a degenerative condition of his lumbar spine and it is now four and a half years since the accident. It is quite consistent with Mr Kudelka and Mr Jones’ opinion that the plaintiff was only able to work for a number of weeks, as he did, without temporarily aggravating his back condition.

68        The defendant relies on a letter from its insurer to the plaintiff dated 12 June 2007 which is headed:

“Accepted injuries: Aggravation of low-back, right elbow/arm & right

knee.”

69 It will be noted that this letter was forwarded after the defendant’s insurer had the benefit of several reports of Mr Kudelka and the Opinion of a Medical Panel on matters referred to it pursuant to s.104B(9) of the Act. The opinion of the Medical Panel was that the plaintiff had been:

“assessed as suffering a combined whole person physical impairment of 6 per cent which converts to a 10.2 per cent Impairment Benefit Rating, after taking into account assessment[s] undertaken in accordance with the American Medical Association Guides to the Evaluation of Permanent Impairment, 4th edition.”

70        Mr Lewis relied strongly upon the judgment of Ashley JA in Ansett Australia Ltd v Taylor [2006] VSCA 171. At paragraph 40, His Honour stated:

“Having regard, however, to the very serious consequences for the Authority or self-insurer flowing from acceptance of a claim – not only in respect of compensation payable under s.98C or s.98E, but also, potentially, with respect to s.134AB(3) and (15) – I consider that such an admission should ordinarily be regarded as very significant; albeit not conclusive, because a defendant, in a particular case, might be able to satisfactorily explain its conduct.”

71        His Honour, in paragraph 46ff, set out eleven matters in support of his conclusion that an admission made by the insurer was not conclusive. In particular, he stated, at paragraph 53:

“Seventh, it is true that a favourable decision under s.134AB(16)(b) only allowed a worker to access a gateway, this permitting commencement of a common law action. But it does not follow, in the context of consideration whether the worker had accessed the gateway, that an administrative decision to accept liability in relation to a claim in respect of injury allegedly occurring on or after 20 October 1999 should stand as conclusive proof that such injury had been sustained.”

72        Here, it is not indicated the degree, if any, to which “aggravation of low-back” forms part of the 6 per cent physical impairment. Given this and the fact that, as Ashley JA stated, at paragraph 58, it still remains for the plaintiff to satisfy me that he has suffered a compensable injury in the accident, I am not persuaded by Mr Lewis that I should give the letter of 12 June 2007 the weight for which he contends.

73        In all the circumstances, I am not satisfied that there was any permanent aggravation to the condition of the plaintiff’s lumbar spine which resulted from or was materially contributed to by the injury sustained in the accident.

74        I conclude that the plaintiff did not suffer a serious injury in the accident. The plaintiff’s application therefore fails.