Estate of Kemo Brubric v Victorian WorkCover Authority
[2021] VCC 1701
•4 November 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-19-06098
| ESTATE OF KEMO BRUBRIC | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 March 2021 | |
DATE OF JUDGMENT: | 4 November 2021 | |
CASE MAY BE CITED AS: | Estate of Kemo Brubric v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1701 | |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1958 – Administration and Probate Act 1958 – serious injury application commenced by worker prior to his death – no connection alleged between injury suffered and cause of death – injury to the low back – reliance upon paragraph (a) of the definition – leave sought in relation to pain and suffering and limited period of economic loss – whether burden of proof discharged – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison QC with Ms K Popova | Zaparas Lawyers |
| For the Defendant | Mr R Kumar | Wisewould Mahony |
HIS HONOUR:
(a)General background
1This serious injury application is brought by the Estate of the late Kemo Brubric, who died on 8 November 2019. His cause of action survives pursuant to s79(1) of the Administration and Probate Act 1958. There was no argument as to the right of the Estate to pursue this application pursuant to the provisions of the Accident Compensation Act 1958 (hereinafter referred to as “the Act”). The Late Mr Brubric shall hereinafter be referred to as “the worker” and the Estate as “the plaintiff”.
2Prior to his death, the worker had initiated the relevant serious injury application. He had sworn an affidavit dated 31 July 2019. After his death, his widow, Ms Zdenka Brubric, swore an affidavit dated 28 July 2020. This case was conducted entirely “on the papers”, being in essence the affidavits already referred to and a considerable number of medical reports.
3The worker’s application related to the course of his employment. He was originally employed by Detmold Flexibles Pty Ltd. That company ultimately merged into, or was taken over by, Amcor. There is no issue as to the precise identity of the employer, which shall hereinafter be referred to as “Amcor”. Apart from relying upon the course of employment, the worker also relied upon an incident of employment on 16 May 2014. The worker ultimately ceased work with Amcor in January 2018. He did not work thereafter, although he was on weekly payments of compensation. In 2019 he was diagnosed with stomach cancer and this ultimately caused his death on 8 November 2019.
4The claim by the plaintiff is based solely upon paragraph (a) of the definition of serious injury. The leave that is sought is in respect of both pain and suffering and economic loss, the latter being for the period between the worker’s cessation of work with Amcor and his death. The alleged injury is one to the low back. Ultimately the worker ceased work in January 2018 and weekly payments are sought for the period between then and his death on 8 November 2019.
5Mr C Harrison QC with Ms Popova of Counsel appeared on behalf of the plaintiff. Mr R Kumar of Counsel appeared on behalf of the defendant. No oral evidence was called. Apart from the affidavit sworn by the worker during his lifetime and the affidavit of his widow, a large number of medical reports was placed in evidence. No point was taken as to whether this action should have been taken under the Workplace Injury Rehabilitation and Compensation Act 2013 or the Accident Compensation Act 1985.
(b)The worker’s background, education and employment prior to the injury
6The worker was born in April 1956 in Bosnia. He obtained a degree in economics and worked in a bank for approximately 17 years, reaching the status of manager. He married in 1978 and he and his wife had a son. The family’s departure to Australia occurred when they fled from Croatia in 1995, this being in the context of the civil war in Bosnia. After arriving here, the worker did a course in English and worked as a machine operator for a number of companies. He commenced employment with Amcor as a machine operator in 2002 and continued working there until cessation in January 2018. I accept that he was a hard worker and that, if required, he worked long hours. I note from his affidavit that he worked approximately 12 hours per day Monday to Friday, along with regular overtime on Saturdays.
(c)The worker’s reliability as an historian
7In this regard, I am reliant upon any observations that may have been made by medical examiners during the worker’s lifetime, the unchallenged affidavit of his widow, and the impression created by the worker’s affidavit. Dr Michael Duke, consultant psychiatrist, who saw the worker at the request of the defendant, whilst describing him as very vague in relation to various life events, also stated the worker sought to be cooperative. There are a number of medical reports from those who have treated the worker. In none of them is it suggested that he was in any way exaggerating his symptoms or malingering. Indeed, there are comments concerning his keenness to return to work. I do not accept that his credit has been damaged, in the sense of wilfully maximising or exaggerating his symptoms and restrictions.
(d)The state of the worker’s health apart from the matters the subject of the application
8It would appear that the worker had a gastroesophageal reflux disorder for an unknown period. It would also seem that he also suffered from some depression linked to the civil war in Bosnia and took Lexapro in that regard. He also had chronic obstructive pulmonary disease, perhaps due to smoking, for something in the order of 10 years. None of these conditions appears to have impacted upon his ability to work long hours. In his affidavit of 31 July 2019, the worker referred to occasional back pain which he had had on and off over the years, but could not recall needing to take time off work because of it prior to the onset of the relevant problems in approximately late 2013. The worker swore that, prior to injury, he did not have a lot of hobbies, because he worked so much. The work was very heavy and physical, but he really enjoyed it. In short, whilst he had some health issues, these did not prevent him from engaging in and enjoying long hours of hard work.
(e)The injury, its treatment and diagnosis
9In late 2013, when working an afternoon shift, the worker started to notice numbness and pins and needles in his right foot. He reported this and went home. He returned to work, but encountered some difficulties in going up and down stairs because of weakness and numbness in the right foot, in addition to having trouble lifting it off the ground. He saw the company doctor and was given time off, prescribed penicillin and later referred to a physiotherapist. Some notes from the Bridge Street Clinic, which I understand to be in Port Melbourne and which would appear to be the “works doctor” for Amcor, were placed in evidence by it. These refer to three visits, within approximately one week, in late May 2014 in relation to strained/inflamed lower back muscles and right lower leg discomfort. The history given referred to the condition as apparently arising in the course of the worker’s usual job as a machine operator. Physiotherapy had been organised by Amcor. It is not entirely clear whether the worker missed any time from work.
10The defendant also placed in evidence a Patient Health Summary from the Cairnlea Super Clinic at Cairnlea. It is quite apparent that the worker had attended this clinic for his general care. The document was printed on 16 February 2018. It refers to the worker’s active past history as including chronic obstructive pulmonary disease in July 2014 and a depressive anxiety disorder in 2010. Under the heading “Inactive Past History”, the sole entry is to chronic obstructive pulmonary disease. There are various references to irrelevant matters such as sinusitis, blocked ear and the like. In 2010 he was suffering from anxiety and stress following his son being in a motor vehicle accident, but he was not happy about seeing a psychologist. A later entry indicated that the depression and anxiety had improved. There are some further references to anxiety. In January 2014, the worker apparently spent three days in the Alfred Hospital with problems related to low blood pressure and an atrial flutter. Apparently no cause of this was found. During 2014, the records show a number of visits in relation to shortness of breath, coughing and the like. There are various references to the worker’s smoking habit. It is noted that from approximately mid-2014 Dr Rahman, at the Cairnlea Super Clinic, was seeing the worker more regularly than other doctors. Dr Rahman effectively became the worker’s treating general practitioner.
11For some time, the worker’s visits to Dr Rahman were in relation to matter such as chest complaints, gastritis and the like. In January 2016, the worker commenced complaining of right ankle and leg pain. By 29 March 2016, he was complaining of weakness in the right ankle and leg and could not go to work. It is apparent that the worker was referred for radiological investigation. On 2 April 2016 a CT scan of the lumbar spine was performed. It is recorded in the clinical notes relating to that CT scan that the worker had a numb right leg and ankle and the possibility of nerve compression was raised. The conclusion of the radiologist was that there was a simple protrusion of disc/osteophyte at L4-5 with thecal compression and bilateral L5-S1 foraminal narrowing with probable right L5 nerve root involvement bilaterally.
12It appears that the worker was referred by Dr Rahman to Dr Tanya Yuen, neurosurgeon. From her brief letter to Dr Rahman of 15 July 2016, it is apparent that nerve conduction studies had been carried out and that these demonstrated a right lumbosacral plexopathy or a high sciatic neuropathy. Dr Yuen was of the view that no surgical intervention was warranted, but suggested the possibility of trialling a foot drop splint. She was also referring the worker to Associate Professor John King, neurologist.
13Dr Yuen had earlier reported to Dr Rahman on 20 May 2016. The history taken was that the worker had started to have intermittent leg pain from the knee down to his foot and in the last three months had notice numbness mainly in the lateral calf and the dorsum and sole of the right foot, this being associated with foot drop. He also had occasional pain and numbness down the posterolateral thigh and back, although this was not a major problem. There is a reference in the report of Dr Yuen to an MRI scan that had been performed recently and which had demonstrated significant degeneration of the L4-5 and L5-S1 discs causing bilateral severe lateral recess and foraminal stenosis. Whether this was in fact a reference to the CT scan of 2 April 2016 is not entirely clear. It is apparent that Dr Yuen was organising nerve conduction studies.
14Associate Professor John King, neurologist, reported back to Dr Yuen on 12 August 2016. The history taken by Associate Professor King was that, over two years previously, the worker was pushing rolls with his right leg and noticed numbness of the dorsum of the right foot. In January of 2016, the worker quite suddenly noticed increasing weakness of the right foot, with numbness extending at the lateral side of the leg towards the knee. There had been very little pain. Associate Professor King noted that the worker had obvious right foot drop and severe weakness of ankle dorsiflexion, eversion and the like. His observation to Dr Yuen was as follows:
“Clinically this looks like a right L5 and possibly some S1 involvement. I don’t think it is a common perennial move palsy. He does have severe narrowing of the L5/S1 disc, with bilateral foraminal stenosis, which I think probably is compressing the right L5 root.”
15It is apparent that Dr Rahman referred the worker to Dr David Oehme, neurosurgeon, for the purposes of obtaining a second opinion. This was provided on 5 December 2016. Dr Oehme thought that the worker’s symptoms were suggestive of a compression lesion of the L5 nerve root with weakness of the foot and paraesthesias in the L5 distribution. This could be related to compression of the L5 nerve root in the L4-5 subarticular recess. He felt that, given the length of the foot drop, surgical intervention at this stage was very unlikely to improve the weakness. Given that the worker did not have any pain, Dr Oehme did not think that surgery was warranted at this time, although leaving it open as an option in the event of the development of pain.
16There is also an undated report from Dr Chee Choy, respiratory and sleep physician, who appears to have referred the worker to Mr Jin Wee Tee, neurosurgeon, for a further opinion, but this does not take matters much further.
17One item put in evidence and of considerable significance is a report from Mr Jordan Stevens of Bodycare Corporate Injury Management, which appears to be an entity which provides physiotherapy and the like to employees of Amcor. It is dated 21 May 2014 and contains the following history. It is stated that on the previous Friday (which would have been 16 May 2014) the worker had “… pushed a 500 kg ? trolly and twisted through his right hip/knee. He didn’t feel much pain at the time, but gradually increased over the weekend. Has trouble sleeping due to it. He has reported decreased sensation in his right lateral leg and foot.” Some of the matters found on examination are difficult to interpret as they are written in a type of shorthand, but it is apparent that the worker was limping and experienced pain when stretching. He also had decreased sensation on the lateral right leg when compared to the left. The diagnosis was of sciatic nerve irritation; glute strain; L4-L5-S1 disc bulge. It is apparent that the worker was advised to return to his general practitioner and obtain stronger anti-inflammatory medication.
18It is also apparent that, in early 2018, the worker changed treating general practitioners, or at least was seeing an additional doctor in relation to the relevant injuries. That practitioner was Dr Peter Andrianakis of Footscray. He has provided a detailed and helpful report of 27 September 2019. Apparently the worker was seeing him for review and management of work related injuries. Dr Andrianakis obtained a history of the worker being required to push very heavy trolleys and drums over the course of his employment. The worker had first reported weakness in the right lower limb in 2013. He also described how chairs had been provided for him in his work in 2016. He stated that there was no specific incident leading to the injury, but that it was the net effect of heavy manual duties. He had developed a right foot drop in 2016 when seen by Dr Rahman.
19Dr Andrianakis was aware of the CT scan of 2 April 2016 and of the referral to Dr Yuen and ultimately, to Associate Professor King. Dr Andrianakis referred to the diagnoses of Associate Professor King and Dr Oehme of L5 and S1 nerve root compression. He noted that the worker had been referred to a Dr Yerra for a neurological assessment, this referral apparently being at the request of the defendant. The conclusion was that the worker, whilst having right foot drop, could perform his usual role as a waxing machine operator. Of course, at this time the worker was keen to resume his duties.
20Dr Andrianakis had seen the worker again on 4 April 2018. At that time, the worker was commenced on an antidepressant, but also on Endep to manage back and leg pains and assist with sleep. He was certified unfit for work. Dr Andrianakis noted that the worker continued to complain of lower back pain, which was the cause of his right foot drop, but this had not been fully treated or followed up. He was commenced on anti-inflammatory medication and Tramadol for managing his back pain. He noted that the worker continued to be on waiting lists at hospitals for further reviews. His depression and anxiety had worsened since his injury and claim and there was a referral to a psychiatrist in this regard. Dr Andrianakis concluded his report by saying that the worker continued to attend monthly for pain management and counselling. He remained unfit for work and certificates had been issued accordingly.
21Dr Andrianakis reported to the worker’s solicitors again on 12 December 2020. He noted that the worker had died on 8 November 2019. He observed that, in his initial report, he had written that the worker reported his lower back/right lower limb injury in 2013. He was not clear of the exact cause and progression of the injury, as he was avoiding a work care application because of fear of losing his job. Since that earlier report, Dr Andrianakis had been provided with further material in relation to the incident at work on 19 May 2014, when the worker had injured his lower back while turning a 500 kilogram roll at the waxing machine. He was also aware of the worker having attended at the Bridge Street Clinic on 22 May 2014, where he had been diagnosed with a back strain and it had been recommended that he both attend physiotherapy and return to work on light modified duties. Dr Andrianakis expressed the view that the incident of 19 May 2014 could have been the major contributing factor to the lower back injury and right lower limb injury that had been described by the worker. He noted that there had also been a reference to right foot numbness and weakness in late 2013 while the worker was working and engaging in repetitive heavy manual duties. Thus, it would appear that the incident in question occurred in May 2014 and not in late 2013.
22In the opinion of Dr Andrianakis, the worker’s incapacity for work was caused by his reported lower back injury affecting his right lower limb. The incident caused an L5-S1 nerve root compression, in turn caused by foraminal stenosis as a result of disc space narrowing at L5-S1 because of disc prolapse and osteophytes. Dr Andrianakis referred to the CT scan of 2 April 2016. He noted that it was determined as of 1 April 2018 that the worker had no capacity for work at any level. The worker was struggling with significant back and right lower limb pains and weakness. He could not stand or walk for any appreciable time and this made work duties impossible. He was taking medications and had developed a reactive depression that affected his concentration and ability to work. The worker’s language skills were poor and he was not fit or able to perform light modified duties. At the time of his death, the worker remained certified as being totally unfit for any work duties, because of his lower back and right lower limb injury. His impairment had been permanent.
23I turn now to medico-legal opinions.
24Mr Mohammed Awad, neurosurgeon and spinal surgeon, saw the worker at the request of his solicitors on 31 August 2018. He noted that the worker was a 62 year old machine operator, who had been on WorkCover payments since January 2018, secondary to a work-related injury. Mr Awad took a detailed history of the worker’s presenting complaint, although it is to be noted that, at this time, the worker was still referring to his injuries as having commenced as a result of repetitive strenuous heavy lifting, with numbness in the right leg starting in 2013. As earlier noted and as recorded in the Amcor documents, mid-2014 would appear to be more accurate. In any event, Mr Awad took a history of a complete foot drop developing, with increasing low back pain. The current symptoms which Mr Awad recorded were of complete right foot drop; right leg sciatic pain and numbness; and constant lower back pain. The worker wore a right foot splint and took oral analgesia on a regular basis. He described various effects on his lifestyle.
25Mr Awad diagnosed the aggravation of lumbar spondylosis and complete right foot drop secondary to that. He considered that the nature of the worker’s duties had most likely been a significant contributing factor to the aggravation of the lumbar spondylosis and the development of the foot drop. Employment remained a significant contributing factor to his ongoing pain, disability and requirement for treatment. Mr Awad considered it extremely unlikely that the worker would be able to procure any suitable employment and, if he did, he would be extremely unlikely to be able to carry it out in a reliable and consistent fashion. He had total incapacity for work, which was likely to be permanent. He was likely to continue to suffer from a significant degree of pain and disability into the foreseeable future. Mr Awad concluded that it was his opinion that the worker’s employment was a significant contributing factor to his current injury and condition. His prognosis was poor.
26Mr Awad reported again on 6 July 2020. Of course, by this time the worker had died. The purpose of this report was for Mr Awad to consider some further material supplied by the solicitors for the worker and to answer some questions. The further material forwarded to Mr Awad included progress notes from the Bridge Street Clinic and the worker’s affidavit. Mr Awad stated that he believed that the employment overall had a been a significant contributing factor to the lower back injury, but it also seemed as though the incident of 16 May 2014 was a significant material contributing factor to the back injury and subsequent foot drop. It was unlikely that the worker would have been able to perform any significant activity during the relevant period and therefore the restrictions identified in Mr Awad’s report of 31 August 2018 were likely to be permanent. The worker had had no capacity for pre‑injury employment or for alternative suitable employment. He had a permanent incapacity.
27In addition to some other documents, the defendant also placed medical material in evidence. This material included a short letter from Dr Rahman to Amcor, the letter being dated 14 December 2017. It stated that the worker had been suffering from a psychological condition which was affecting his concentration at work. The condition now had resolved and he would be fit to return to work from 19 December 2017. There was also a further letter of 12 January 2018 from Dr Rahman stating that the worker had been seen and examined by him that day. The worker was fit to return to work from 15 January 2018. It is to be remembered that the worker was very keen to return to work at this time. The defendant also placed in evidence two letters from Dr Andrianakis effectively to Amcor, these being dated 11 February and 23 February2018 and at a time when the worker was keen to continue working. The letters of Dr Andrianakis were to the effect that he could and should continue with his normal duties. I would add that these letters of Dr Andrianakis seem to me to have been overtaken by events, as evidenced by his detailed report, which has been summarised above.
28Associate Professor Bruce Love, consultant orthopaedic surgeon, saw the worker at the request of Amcor on 14 August 2017. The purpose of the examination was to review the worker’s physical condition and determine his capacity to undertake work in a safe manner. The focus of attention in this interview seems to have been upon the worker’s right leg weakness and a motor vehicle accident which had resulted on 16 June 2017. However, since the accident, he felt that he had become more comfortable and was only complaining of weakness in the right leg, with some minor sensory changes. Associate Professor Love did observe that the history which he obtained was somewhat difficult due to the worker’s thick accent, although he believed that he had obtained adequate information. In any event, the worker had been certified as fit to return to work on 31 July 2017, but Amcor had recommended further medical consultations. The concentration of Associate Professor Love seems to have been focussed upon the worker’s current capacity and the development of weakness in his right leg. He observed that there appeared to be no general or past history.
29Upon examination, Associate Professor Love found no restriction of motion of the lumbar spine and the spine was not tender. Straight leg raising was unrestricted. There was obvious weakness of extensors of the great toe and right ankle, as well as eversion of the right foot. The right ankle jerk was depressed and there was diminished sensation on the dorsolateral aspect of the right foot. Associate Professor Love examined a CT scan of the lumbar spine, which revealed moderately severe multilevel degenerative disc disease. The assessment of Associate Professor Love was that the worker had a degenerative lumbar spine, which had resulted in him developing neurological signs in the right leg and principally by way of foot drop. He thought that surgery had only a low chance of assisting. He referred to the possibility of decompressing the L5 and S1 nerve roots, but thought it improbable that recovery would result. The worker indicated his preference to return to work, as staying at home was a rather boring existence.
30The only other medico-legal report placed in evidence by the defendant was that of Dr Michael Duke, consultant psychiatrist, of 25 January 2018. Annexed to it were documents involving the CT scan, and reports to Dr Rahman from Dr Yuen, Associate Professor King and the like, which essentially have been referred to above. There is a brief letter from Dr Rahman of 12 January 2018 indicating that the worker was fit to return to work as of 15 January 2018.
31The report of Dr Duke strikes me as being of limited assistance. Firstly, it is a report of a consultant psychiatrist in a case where there is no reliance on paragraph (c) of the definition. Of course, that does not make it irrelevant, but, in the context of this case and what appear to me to be clear physical findings, its impact is limited. Secondly, it arose in the context of a worker who had been put off work and was keen to return to it. Thirdly, it involved commentary upon certain “life events” set out in the letter of referral. These, for example, included reference to a motor vehicle accident, following which the worker failed a blood alcohol level test. It referred to the worker being unsteady on his feet and experiencing dizzy spells, this being discussed at a work meeting on 24 July 2017. There were also references to him having slurred speech and being unresponsive in the sick bay. In any event, Dr Duke referred to the worker having periodic, but unpredictable, behavioural changes, including a loss of consciousness at work, but stated that the causes of these were unclear. He thought that the worker was currently unfit to perform his role at work, because he might be unsafe when operating, or in the vicinity of, machinery. He suggested a range of relevant investigations as part of a neurological assessment. The results of these should be available for comment by a neurologist.
32As stated, I am not of the view that this report takes matters particularly far.
33Another piece of evidence placed in evidence by the defendant was an incident report of 16 May 2014. Whilst Dr Duke, in the history taken and as set out above, referred to the fact that some four years previously the worker had started experiencing intermittent leg pain from the knee down to the foot, there is no indication that this Incident Report had been forwarded to him. It refers to the fact that, on 16 May 2014, the worker had been turning a 500 kilo roll without the aid of the required tool for the task and had sustained a lower back muscle strain. He had not reported it at the time, but had advised on the following Monday (19 May 2014) that he was going off to the doctor. He went to a physiotherapist on 21 May and an appointment had been made for him to attend the Bridge Street Clinic (the “works doctor”) on 22 May. Annexed to this incident report is a document headed “Sequence of Events”. This includes reference to the fact that on Saturday, 17 May 2014, the worker’s pain was getting stronger, but he did not attend a doctor as he thought he may be better by Sunday (the following day). On that following day, the pain got worse, but again he did not go to the doctor, as he thought that the clinic did not open on Sundays. On Monday 19 May 2014 he had the same amount of pain as on the Sunday. He attended his local doctor, who diagnosed muscle pain and advised him to buy Voltaren tablets.
34Further, on Monday, 19 May 2014, the manager and safety coordinator called the worker on the telephone and subsequently, with his permission, contacted the doctor. Ultimately, as an authority was required from the worker, the manager and safety coordinator went to his house, but were unable to contact him. He attended upon the Manager on 20 May 2014, when he advised that he was feeling better. He was taken to a physiotherapist on 21 May 2014, the physiotherapist advising that the worker should see a doctor. Accordingly, an appointment was made by Amcor at the Bridge Street Clinic, which the worker duly attended on 22 May. Apparently there was a diagnosis of strained/inflamed lower back muscles. Some restrictions were placed on the worker’s activities, but he was able to work his normal hours and was to receive further physiotherapy treatment. Some form of internal investigation into what had occurred was performed.
35Whilst the resulting report is somewhat technical, it identified that the rolls used in the work process were large, could weigh up to 500 kilograms, and that the turning of the rolls had been identified as a hazard. Of course, matters relating to an allegedly unsafe system of work are not relevant to the present application, but I have set out the above to indicate that it does appear that an incident warranting investigation occurred on 16 May 2014, even if the details set out do not appear in the report of Dr Duke.
36In my Ruling, I shall discuss my findings as to the nature of the injury suffered by the worker and the role which employment in general, along with the particular incident, may or may not have played. That shall follow a discussion of events subsequent to the injury and a summary of the competing submissions.
(f)The cessation of employment and other developments
37It is apparent that, in November 2017, there were some concerns felt by management in relation to the worker’s performance or behaviour at the workplace. Allegedly he was doing such things as not filling out data, leaving the site without notification, leaving a machine running, complaining of constant headaches, feeling depressed and the like. These matters were raised in a letter to Dr Rahman and it would seem that the worker’s hours of employment were to be aligned more with day shiftg, so that his behaviour could be monitored. The letter to Dr Rahman indicating these concerns is dated 16 November 2017.
38A further letter was sent by the Operations Manager to Dr Rahman on 6 December 2017. It would appear that, on 5 December 2017, the worker had been sitting on a milk crate and struggling to stand up. A co-worker attempted to help him, but could not lift him. Apparently the worker was slumped over, had slurred speech and was slow to respond. The worker was insisting that he was “Okay” and refused offers of assistance. Some 10 minutes later, he was still sitting on the milk crate and asked a fellow employee to call him a cab. The co-worker managed to lift him and place him inside the tearoom. The worker was very wobbly on his feet and appeared close to passing out. He was sent home by cab.
39The Operations Manager enquired of Dr Rahman as to the worker’s fitness for duties. On 13 December 2017, either a letter or an email was sent direct to Dr Rahman in relation to the state of the worker’s health. He had been asked not to attend the workplace until a detailed summary was obtained from Dr Rahman. Apparently due to a lack of response, a further email was directed to Dr Rahman on 10 January 2018. The worker was stating that he was fully fit to return to work, but the employer needed some further response as to what it described as the likelihood of future unpredictable medical events. It is asserted that, on 14 December 2017, Dr Rahman had advised that the worker would be fit to return from 19 December 2017. It would appear that, on 4 January 2018, he had been found asleep on a bed in the first aid room and there had been problems in obtaining a response from him which could be understood.
40The correspondence goes on to state that the employer remained very concerned in relation to the physical and psychological health of the worker. It was believed that he was not fit for work and that he posed a significant risk to both himself and his co-workers. Reassurance was wanted that unpredictable health events could be controlled in the workplace. On 1 March 2019 a letter was forwarded to the worker referring to his absence from work since 27 March 2018 and effectively terminating his employment as of 3 April 2019.
41It would also appear that on 13 February 2018 the worker lodged a WorkCover claim. The relevant form was signed and dated 13 February 2018. The injury relied upon was described as being to the lumbar spine. There was also reference to altered gait and a neurological injury with damage to the right lower limb, including foot drop. There was also a reference to psychological injury, stress and depression. The description of how the injury was suffered refers to the course of employment and the performance of duties involving heavy and repetitive lifting, along with the handling of heavy rolls of aluminium and wax. The injury is alleged to have occurred in the course of employment from 2013 to 2016. The employer acknowledged receipt of the claim form on 14 March 2018. On a subsequent date, namely 13 September 2018, the worker made a claim for impairment benefits effectively based upon the same injuries and alleging occurrence throughout the course of the employment, with reference to repetitive heavy pushing, pulling, rolling and lifting.
42On 18 April 2018, the worker’s claim for statutory benefits by way of weekly payments and reasonable cost of treatment was accepted. On 14 December 2018, the worker’s claim for impairment benefits in relation to injury to the lumbar spine and associated left lower limb symptoms, along with psychiatric injury, was accepted. An impairment benefit in relation to the physical injuries was paid, but it would appear that the psychiatric impairment had been assessed at 0%.
43It would seem that the worker was first diagnosed with stomach cancer early in 2019. As stated, he died on 8 November 2019. Apparently the payment of statutory benefits continued until his death.
(g)The submissions on behalf of the parties
44Given the somewhat unusual circumstances which are operating in this case, I shall briefly summarise the submissions of the parties.
(i) The opening and closing submissions on behalf of the plaintiff
45The above submissions on behalf of the plaintiff could be summarised as follows.
46The significant foot drop referred to in all reports was productive of consequences, both in relation to employment and in terms of lifestyle, which could satisfy the statutory test, even without the addition of back pain. The worker had some comorbidities, such as depression, which was largely attributable to the trauma associated with the war in Bosnia, but the consequences of the work-related injuries are of themselves sufficient to satisfy the statutory test. The circumstances of the particular incident which occurred in May 2014 are well recorded.
47It is apparent that the worker wanted to keep his job and to continue working, although in a steadily deteriorating situation. This should not be used against him. It was an unusual situation with the employer effectively stating to the worker that he was not fit enough to work and the worker, notwithstanding his difficulties, saying that he was all right and wanted to get back to work. The worker would gloss over his difficulties because of his desire to work. If there is criticism of the absence of a report from Dr Rahman, it is pointed out that Dr Andrianakis became the worker’s general practitioner and provided reports that both pre-dated and post-dated the death of the worker. Reference is made to the report of Mr Awad to the effect that, despite the comorbidities, the worker had an inability to work which was attributable to the work-related injuries. There is no challenge to the proposition that the lymphoma can be taken into account, but there is not the necessary evidence that it of itself at the relevant time would have precluded the worker from working.
(ii) The submissions on behalf of the defendant
48The submissions on behalf of the defendant could be summarised as follows.
49There is real difficulty in relation to the ability of the Court to assess the relevant consequences, particularly in the circumstances of the significant comorbid medical conditions. The onus remains with the plaintiff and in that regard a real problem arises.
50There is an issue about the specific incident of 16 May 2014. There appears to have been a relatively swift recovery after that incident and then very minor changes made to the worker’s duties. There is then a lengthy gap, in excess of 18 months, before the worker again saw a doctor in relation to the relevant condition. It would appear from the histories taken in 2016 that the onset of the right foot symptoms and weakness was quite sudden. There are some nine months of a painless foot drop. There has been acceptance of a claim for an injury over the course of employment, but there is minimal material in relation to the consequences arising from any such injury. Dr Andrianakis only started seeing the worker in February 2018 and the history taken by him is not entirely consistent with the contemporaneous material. An example is that he does not seem to have any proper history of the motor vehicle accident in 2017. Mr Awad seems to have taken a history that the car accident was caused by foot drop, but in fact it was caused by excessive drinking (it was also referred to in the report of Dr Duke, as set out in paragraph 29 above). It seems to have had an impact upon the worker’s ankle or foot condition.
51Contemporaneous material in the lead up to the worker’s cessation of work, in particular in late 2017 and early 2018, indicates that, whilst he obviously had symptoms affecting his foot, there was nothing affecting his back. Further, the foot symptoms were not sufficient to keep him away from work. There was a fitness for duty assessment on 1 August 2017, at which time, despite the foot drop, the worker was ambulating freely and performing a variety of manual handling and mobility assessments, whilst wearing his ankle and foot orthosis. Associate Professor Love also has a history of there never being any significant back pain and effectively nothing to find in respect of the lumbar spine. It appears from an Alfred Health discharge summary that, in February 2018, the worker was able to walk normally and do most things quite normally. It is difficult to reconcile this with what is asserted in the worker’s affidavit. Both Dr Rahman and Dr Andrianakis were of the view that he could return to his normal work.
52There is also the question of the worker’s comorbidities. There are problems in establishing what was the nature and extent of any back injury and what are the consequences arising from it.
53The worker’s affidavit is brief or silent in relation to what appear to be very significant unrelated comorbidities. The worker had various complaints which were completely unrelated to the subject injuries or conditions. In the lead up to cessation of work, there appeared to be significant concern about neurological symptoms, including dizziness, inconsistent behaviour, the worker’s inability to understand questions and his speaking with a slurred voice. These are set out in the report of Dr Michael Duke and in the various communications from the employer. There also appears to have been a significant drinking problem, which played a part in the motor vehicle accident in mid-2017. There was a hospital visit, where the worker was diagnosed as having atrial fibrillation suspected to be caused by alcohol. There were also the problems that were occurring at work in late 2017. These culminated in his being unresponsive and needing to be taken to hospital by an ambulance on 4 January 2018. The cessation of his employment does not appear to have been related to any problem with his back or foot. It is noted that Dr Andrianakis seems to have changed his opinion. There are various, unrelated and quite significant medical problems, including the diagnosis of a hernia, which appear to have been affecting the worker at least from March 2018.
54Apparently in the latter part of 2018 the worker was able to travel and went to Bali, although he returned with symptoms. Ultimately, in February 2019 there is the diagnosis of the lymphoma and there are considerable symptoms thereafter. He suffered from significant symptoms, including fatigue, respiratory symptoms, shortness of breath and the like. By 17 April 2019, it was noted that his walking tolerance was only 15 metres and that this was due to fatigue and shortness of breath, rather than any foot drop or back problem. There is little in the worker’s affidavit to assist in this regard. In addition, the Court could have expected material from Dr Rahman or from the Western Hospital. Such material could deal with the effects of chemotherapy and with other comorbidities. There is also only a limited period when the worker was suffering the relevant pain and consequences. Contemporaneous assessments show very little in the way of restriction imposed by the back or the foot. Overall, the Court should not be satisfied that any impairment or loss of body function, whether it be of the lumbar spine or of the foot, meets the statutory threshold.
55Further, in the defendant’s submission, it has not been established that the worker had a loss of earning capacity productive of financial loss of 40 per cent or more as a result of the injuries upon which reliance is placed. It is unarguable but that, as at the date of the application (8 August 2019), the worker would have ceased work and not been earning any income from personal exertion. This was due not only to the lymphoma, but the circumstances surrounding his cessation of employment. Reference is made to s325(2)(e)(ii) of the Act and it is put alternatively that any loss of earning capacity is not serious, given that he would not have been working in the middle of 2019 in any event.
(iii) The Reply on behalf of the plaintiff
56It is very apparent that this worker wanted to keep working and had worked on for some years in a steadily deteriorating situation. This should not be interpreted as some form of outstanding recovery from injury. That the worker wanted to remain in employment is also something found in the reports of Dr Yuen and that of Associate Professor Love. Thus, it is a situation where the employer was stating that it is of the view that the worker was not fit enough for work for reasons which include the leg and back and the worker was in essence saying that he was all right and wished to get back to work notwithstanding his difficulties. Further, it is clear from the incident report that the defendant was aware of the worker suffering injury. It was very clear that the worker continued to have right foot drop. It is also pointed out that Dr Rahman ceased to be the worker’s general practitioner in approximately February 2018, and thereafter Dr Andrianakis was the worker’s treating general practitioner. Dr Andrianakis expressed a clear opinion that the worker was unfit for employment. Dr Awad also expressed the view that, despite his comorbidities, the worker had an inability to work. This would satisfy the 40 per cent test relevant to work-related injuries. The proposition that the lymphoma may have affected the worker’s capacity to engage in employment is not challenged, but there is not the necessary evidence that this of itself would have precluded him from working.
(h)Ruling
(a) Pain and suffering
57I am of the opinion that the plaintiff has discharged the burden of proof in relation to the worker’s pain and suffering. I have come to that conclusion for the following reasons.
58I appreciate that, due to his very unfortunate and comparatively rapid decline in health and his death due to cancer, the worker’s affidavit of 31 July 2019 could not be the subject of challenge by way of cross-examination. However, as I have indicated, in my opinion there is nothing of significance that would indicate that the worker was being anything other than honest in relation to his affidavit. In that affidavit, the worker swore to the following:
· He had pain in his right leg from the knee down to the ankle and into his right foot most of the time and experienced pins and needles in the sole and on the top of the right foot most days and often several times a day.
· He had been diagnosed with right foot drop. His right leg and right foot felt generally weak. He had been using a walking stick on and off for approximately a year in order to help with his balance.
· Even when wearing a brace, walking over uneven surfaces or up and down stairs was difficult for him.
· He found it difficult to get into a comfortable position in bed because of his lower back pain and often woke during the night because of it.
· Sitting for too long caused his lower back to become quite stiff and moving from a sitting to a standing position increased his lower back pain, which was also experienced when he coughed.
· He had pain in his lower back nearly all the time, although the intensity of the pain varied. When it increased, it was a sharp, stabbing pain. Bending, twisting and lifting increased his lower back pain.
· He found it difficult to bend forward to put on his shoes and socks because of his lower back pain and required assistance from his wife or son, who had become his carers.
· Lifting more than a few kilograms increased his low back pain and, if he went shopping with his wife and son, they would frequently carry the heavier grocery items for him.
· Standing increased the symptoms in his right leg after approximately 5 or 10 minutes. He had a vegetable and flower garden that he used to maintain despite his lower back pain and right foot symptoms, but it became too difficult and he had to cease doing this. His son was then tending to the garden.
· He really enjoyed his heavy and physical work. He worked so long and hard that he did not have a lot of hobbies. He liked the routine of going to work and the sense of purpose and achievement. He had intended to keep working for the defendant until retirement age and, if possible, longer.
59The worker’s widow, Ms Zdenka Brubric, swore an affidavit on 28 July 2020. She was not required for cross-examination. Her affidavit contains the following evidence, which was not challenged:
· The worker liked his work very much and became depressed and upset after his working life finished.
· After cessation of work, he was hardly walking much at all.
· She used to help him sometimes with his shoes and socks, because he could not bend over to put them on properly.
· He had trouble sleeping at night and could not sleep on his right side at all.
· He became so unsteady on his feet that he started using a walking stick.
· He also had a lot of trouble sitting down in a low chair.
· Eventually he would no longer do the gardening and his son took over that work.
60Dr Andrianakis had been the worker’s treating general practitioner since 9 February 2018. In his report of 12 December 2020, Dr Andrianakis referred to the worker as having been struggling with significant back and right lower limb pains and weaknesses. He also had problems with being able to stand and walk for any appreciable time. Dr Andrianakis observed that, as at the time of his death, the worker remained certified totally unfit for any work duties because of his lower back and right lower limb injury.
61Mr Awad, neurosurgeon, saw the worker at the request of his solicitors on 31 August 2018. The worker was complaining of constant lower back pain, associated with limited walking time of 15 to 20 minutes, with multiple stops. The worker also had a limited sitting time and was required to move position constantly. This was in addition to complete right foot drop and right leg sciatic pain and numbness. His symptoms and injury affected such matters as his play time with his granddaughter. Mr Awad reported that the worker also had difficulty with lumbar flexion and extension secondary to pain and weakness.
62Associate Professor Love found that the worker had a degenerative lumbar spine, resulting in him developing neurological signs in the right leg and particularly foot drop. Whilst the worker was not making any major complaints, it is to be remembered that this examination took place in the context of Amcor attempting to determine the worker’s capacity to undertake work in a safe manner and the worker being anxious to preserve his employment. Associate Professor Love referred to radiological investigations revealing moderately severe multilevel degenerative disc disease.
63The other expert medical report obtained on behalf of the defendant during the lifetime of the worker is that of Dr Michael Duke, who is a consultant psychiatrist. Whilst he makes some references to the foot drop, the principal focus of his attention was on matters other than physical injuries and their consequences. It is to be remembered that he saw the worker on 23 January 2018, when there was considerable concentration upon whether the worker was fit to return to his employment.
64When all of the above is taken into account, it seems to me that the plaintiff has discharged the burden of proof in relation to the worker’s pain and suffering. Several of the criteria, such as constant pain, interference with sleep, interference with lifestyle and the like were present. Accordingly, the plaintiff is successful in relation to this aspect of the application.
(b) Loss of earning capacity
65The situation in relation to loss of earning capacity is more complicated. The situation in late 2017 and early 2018 was that, in the opinion of some of those at Amcor, the worker’s behaviour had become erratic. However, the worker was keen to return to his duties. In a letter of 14 December 2017, Dr Rahman stated that the worker had been suffering from a psychological condition which affected his concentration at work, but that the condition had resolved and he would be fit to return to work from 19 December 2017. On 12 January 2018, Dr Rahman wrote another brief letter stating that the worker was fit to return to work from 15 January 2018. On 11 February 2018, Dr Andrianakis wrote to Amcor stating that he had seen the worker that day. On the basis of the history given (in essence, that the worker had been working diligently and that there had been no complaints of his not meeting his work requirements), the worker was able to return to his normal duties. He recommended that the worker continue in his normal duties and that further appropriate assessments be made before any termination of his employment. It is to be remembered that the worker was very eager to return to employment at this time.
66Dr Andrianakis wrote another letter to Amcor on 23 February 2018. Whilst it refers to the worker having attended for review of his work injury on that day, the balance of the letter is virtually identical to that of 11 February 2018. It includes the same recommendation that the worker continue with his normal duties and that further appropriate assessments be made before taking the drastic action of terminating his employment.
67Dr Andrianakis provided a more substantial report on 27 September 2019. In it, he referred to a report of Dr Yerra of February 2018, Dr Yerra apparently being located at an entity called Comprehensive Neurological Care, Victoria. Dr Yerra seems to have been directing his attention to the right foot drop. He stated that he could find no deficit in that regard that would impair the worker’s ability to function in his usual role as a waxing machine operator. Dr Andrianakis referred to this as being in keeping with what the worker had stated. In any event, Dr Andrianakis was of the opinion that, as at the date of this report, the worker was unfit for work. It is not entirely clear whether Dr Andrianakis had formed this opinion because of the foot drop, because of lower back pains or because of depression and anxiety, which had apparently worsened and involved referral to a psychiatrist.
68In a further report of 12 December 2020, Dr Andrianakis stated that it was determined as of 1 April 2018 that the worker had no capacity for work at any level. The worker was struggling with significant back and right lower limb pains and weakness and had an inability to stand and walk for any appreciable time in order to make any work duties possible. However, Dr Andrianakis added that the worker was taking medication and had developed a reactive depression that affected his concentration and ability to manage work at any level. He did conclude that, as at the time of the worker’s death, he remained certified totally unfit for any work duties because of his lower back and right lower limb injury.
69Mr Mohammed Awad, neurosurgeon, had seen the worker at the request of his solicitors on 31 August 2018. He provided a supplementary report of 6 July 2020, noting that the worker had died on 8 November 2019. In his earlier report, he stated that the worker would find difficulty in performing any form of pushing, pulling, bending, twisting, lifting or any repetitive motions of the lumbar spine. He would also struggle with any form of sitting or standing for long periods of time and anything more than 15 minutes would be considered too long. He thought that, in theory, the worker would have the physical capacity to undertake extremely sedentary work several hours per day, several days per week, if a suitable job was available. However, taking into account the worker’s age, education, training skills and work experience, as well as the nature and severity of his work-related lumbar spine condition and foot drop, Mr Awad considered that it would be extremely unlikely that the worker would be able to procure any suitable employment. If he did, it would be extremely unlikely that he would be able to carry this out in a reliable and consistent fashion. In the opinion of Mr Awad, as at 31 August 2018 the worker had total incapacity for work, which was likely to be permanent.
70In his supplementary report, Mr Awad stated that, given the worker’s permanent neurological damage in terms of a right foot drop and chronic lower back pain exacerbated by movement, it was unlikely that he would have been able to perform any significant activity and therefore the restrictions that have been mentioned were also likely to be permanent. He concluded that the worker had had no capacity for pre‑injury employment and no capacity for alternative suitable employment. He believed this to have been a permanent incapacity.
71The worker’s diagnosis of stomach lymphoma occurred in February 2019. I would refer to paragraph 27 of the worker’s affidavit of 31 July 2019. As stated, he died on 8 November of that year.
72It seems to me that an important issue is the level of the worker’s capacity for employment preceding and as at the time of the onset of symptoms associated with the lymphoma, which, as stated, was first diagnosed in February 2019. Some relevant decisions have been referred to in the comparatively recent judgment of her Honour Judge KL Bourke in the matter of Madaroski v Colonial Meat Export Pty Ltd [2021] VCC 113. In particular, there is reference to the judgment of Maxwell P in Peak Engineering and Anor v McKenzie [2014] VSCA 67. In that decision, his Honour describe the difficulty that is faced when a separate injury is also producing pain and suffering consequences, in addition to those produced by the relevant injury. In that regard, he stated as follows:
“The Court must decide whether the consequences of the original injury are ‘more than significant or marked, and ... at least very considerable’. For that purpose, it is necessary — so far as the evidence permits — to identify the consequences properly referable to the original injury, and to exclude the consequences referable to the subsequent injury.”
73His Honour further found that the two steps involved were firstly to identify and exclude the continuing consequences for the plaintiff of the non-compensable injury, and secondly, when the consequences properly referrable to the relevant injury have been identified, consider whether they satisfy the test of “serious”.
74Applying that to the present case, what is required for the purposes of the relevant test is to identify the consequences properly referable to the original injury (the injury to the lumbar spine and its sequalae) and to exclude the consequences referable to the subsequent injury (the onset of the lymphoma).
75There is no argument but that there were continuing consequences for the worker of the non-compensable injury and those consequences, at least at some stage of his lymphoma-related illness, would have been of sufficient magnitude to incapacitate him totally. However, the issue to be determined then relates to the capacity, if any, of the worker for employment prior to the onset of the supervening medical condition.
76It seems to me that the weight of the evidence establishes that it is more probable than not that, as at February 2019 when the lymphoma was diagnosed (and assuming that this resulted in immediate total incapacity, which may not have been the case), the worker had no capacity for employment as a result or consequence of the relevant work-related injury or injuries. Such had been the situation since approximately 1 April 2018 and, but for the lymphoma and the worker’s untimely death, would have continued to be the case for the foreseeable future.
77In this regard, I refer to the opinion expressed by the worker’s treating general practitioner, Dr Andrianakis, that as of 1 April 2018 the worker had no capacity for work at any level. In that regard, he expressed the opinion that the worker was struggling with significant back and right lower limb pains and weakness. He could not stand or work for any appreciable time so as to make any work duties possible. Dr Andrianakis went on to say that, as at the time of his death, the worker remained certified totally unfit for any work duties because of his lower back and right lower limb injury, which had been assessed as being permanent.
78This accords with the opinion of Mr Awad, neurosurgeon and spinal surgeon, who saw the worker approximately five months prior to the diagnosis of the lymphoma. The opinion expressed by him in his report of 31 August 2018 was that the worker had total incapacity for work and that was likely to be permanent. That was due to the diagnosed injury of aggravation of lumbar spondylosis and with a complete right foot drop secondary to L4-5 lumbar spondylosis. In an updated report of 6 July 2020 and after the death of the worker, Mr Awad expressed the opinion that the worker had been permanently incapacitated for work as a result of the injury, specifically stating that he had no capacity for alternative employment. He also stated that it was a permanent incapacity.
79I prefer these opinions to that of Associate Professor Love. Firstly, he seemed to encounter some language difficulties when interviewing the worker. Secondly, the context in which he was interviewing the worker seemed to relate essentially to foot drop and to the occurrence of a motor vehicle accident which does not seem to have been of major significance. Indeed, the worker had said to Associate Professor Love that he had become more comfortable since the road traffic accident and could return to work as of 31 July 2017, remembering that Associate Professor Love saw him on 14 August of that year.
80There is no doubt but that the worker was very eager to return to work if he could. However, by 1 April 2018 Dr Andrianakis was certifying the worker as being totally incapacitated for employment and that continued to be the situation.
81Thus, I accept the opinions of Dr Andrianakis and Mr Awad who saw the worker during his lifetime and who have expressed in clear terms that he was totally incapacitated for employment prior to the onset of the lymphoma. If that be so, the situation is quite different from that encountered by her Honour Judge Bourke in Madaroski. To employ the wording used by Maxwell P used in Peak Engineering, the consequences properly referable to the injury, and excluding consequences referable to the subsequent injury, result in a finding that the worker had no capacity for suitable employment prior to the occurrence of the subsequent injury, being the lymphoma.
82Accordingly, I am of the view that the plaintiff is entitled to leave to bring proceedings in relation to the claim for loss of earning capacity from 1 April 2018, being the date upon which Dr Andrianakis was first prepared to certify him as having no capacity for employment, until the date of his death on 8 November 2019. I find that the worker had a total loss of earning capacity during that period as a consequence of the injury or injuries upon which the plaintiff relies. The intervention of the lymphoma does not remove that entitlement.
(i)Conclusion
83The plaintiff is successful. Leave is given in respect of pain and suffering damages. Leave is also given in respect of loss of earning capacity damages for the period 1 April 2018 to 8 November 2019. I shall hear the parties as to any further orders that are required.
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