Fisher v Victorian WorkCover Authority
[2021] VCC 315
•26 March 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-05258
| CRAIG FISHER | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Melbourne (via Zoom) | |
DATE OF HEARING: | 12 and 15 February 2021 | |
DATE OF JUDGMENT: | 26 March 2021 | |
CASE MAY BE CITED AS: | Fisher v Victorian Workcover Authority | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 315 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Pain and suffering – pecuniary loss – lower back
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Ansett Australia Ltd v Taylor [2006] VSCA 171; Sednaoui v Amac Corrosion Protection Pty Ltd [2017] VSCA 66; 52 VR 247
Judgment: Leave granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S McCredie with Ms C Moore | Zaparas Lawyers |
| For the Respondent | Mr B McKenzie | Wisewould Mahony |
HER HONOUR:
1The plaintiff, Mr Fisher, is a 51 year old man. He makes this application pursuant to Section 335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (WIRC Act) for a serious injury certificate for pain and suffering damages and pecuniary loss damages for injuries he sustained to his spine throughout the course of his employment with Multrans Pty Ltd from October 2014 to March 2015.
2There are two issues in this case. Firstly, whether Mr Fisher suffered the injury during the course of his employment with Multrans, and secondly, whether the injury has caused a sufficient loss in his earning capacity to entitle him to make a claim for damages for pecuniary loss. There is no real dispute as to the nature of the injury itself or the pain and suffering consequences for Mr Fisher.
Background
3Mr Fisher relies on affidavits he swore dated 3 July 2018 and 10 February 2021.
4He was born in New Zealand and attended school until year 10, when he left to join the Royal New Zealand Air Force. He left the Air Force after two years and completed year 11 at school. He moved to Australia in 1994 when he would have been 24 years old and completed a car mechanical apprenticeship. He says that he is a qualified car mechanic and has worked in this trade his entire adult life as well as ‘on occasion’ supplementing his income by working other jobs including as a cleaner, service station attendant and taxi operator.[1]
[1] Plaintiff’s Court Book (“PCB”) 34
5In October 2011 he joined the Royal Australian Air Force as a mature aged recruit until his discharge in June 2012.
6Between 2013 to mid-2015 he ‘operated’ a farm. He says he did perform some maintenance work on the farm but had leased the land. I take this to mean that the land was leased out to others to farm and that he was not primarily engaged in farming.
7Between 2011 and 2014 he completed a second apprenticeship as a diesel mechanic specialising in mining equipment. In his second affidavit he says he left the Air Force to accept the opportunity to complete a second apprenticeship with MacMahon Mining in Western Australia to qualify as a heavy mobile plant mechanic. It is not clear whether he had already commenced his second apprenticeship whilst in the Air Force.
8In any event he worked 12.5 hours a day in 28 day blocks whilst completing his apprenticeship. He was then employed as a heavy duty fitter by NRW Civil & Mining. Like his work with McMahon, this was a ‘Fly In Fly Out’ (‘FIFO’) position where he worked 12 hour days for 28 consecutive days and would then have one week off. He was employed with NRW Civil & Mining between 18 February 2014 and 25 July 2014.
9In his first affidavit he says he started working with Multrans ‘whilst having a break from the mines’. In his second affidavit he says he left his employment with NRW Civil and Mining ‘due to relationship problems’. He says it was always his intention to return to the ‘lucrative fly-in-fly-out employment after working for the employer for a short time’ and that he is ‘no longer in a relationship and would have returned to the mining industry had I not sustained injuries to my spine during the course of my employment with the employer’.[2]
[2] PCB 48
10He started working with Multrans on 21 October 2014 as a casual worker, driving a Cela Elevating Work Platform (EWP) Crane (‘the truck’) to various sites around Victoria.[3] He says the truck was extremely old, had rudimentary suspension and was not designed to travel long distances or at high speeds. It did not have any springs or suspension in the seat and he felt ‘every single bump and jolt’ when driving it on the road. He describes experiencing frequent bumps. The vehicle did not have a seat belt and he was constantly being thrown around when driving.[4]
[3] PCB 35
[4] PCB 35
11He says he began to experience pain in his spine in October 2014.[5] This was different and more severe than any back pain he had suffered previously.[6] In his Worker’s Injury Claim Form dated 11 August 2015, he pinpointed the date he started feeling this pain to 25 October 2014. In that form he says he was driving the truck to Geelong at about 6am. He says that he ‘experienced pain since and continued to drive the truck’.
[5] PCB 35
[6] PCB 36
12He continued to work for Multrans until 27 March 2015. His position with Multrans changed from that of a casual employee between 21 October 2014 and 7 December 2014, to a subcontractor from 15 January 2015 until his departure. He says that the crane was in for repairs for a period over Christmas and could not be driven.[7] He says it was suggested to him that he would earn more if he worked on a contract basis and so after the Christmas period he came back on that basis.[8]
[7] Transcript (“T”) 68, Line (“L”) 13
[8] T66, L27-T67, L1
13He says after the initial incident on 25 October 2014, there were several other occasions where his spine was particularly jarred, or jolted and caused him pain. The pain continued and increased throughout his period of employment at Multrans.
14After finishing at Multrans he went to work in the mines again in Western Australia, this time through Stellar Recruitment. He passed a medical assessment on 14 April 2015 which I will deal with in more detail later.
15He worked as a service person and refueller in the mines for a few months between April and early July 2015. Mr Fisher says that he was working on a FIFO basis and he did not actually commence work as a serviceman until the ‘third swing’. The first two rotations of his FIFO service were inductions to learn the run, get a verification of competency for operating the service truck, and also involved supervising the fuel tank fill. He did not commence driving the service truck himself until the week of 29 June 2015[9] but after a relatively short time doing the required work, his back was so sore he was unable to continue. He says he saw the on-site medic on two occasions and, as his back was too sore to work, he had to fly out.[10]
[9] T84, L7
[10] T85, L6
16He then sought medical treatment, which I will deal with in greater detail later.
17He has subsequently applied for and obtained a number of different jobs, but he is not currently employed.
Medical History
18Mr Fisher says that his injury was caused by his employment with Multrans. I detail his medical attendances both before and after that employment as they form an important part of the case.
19Prior to his employment with Multrans he had an x-ray of the lumbosacral spine on 8 December 2011 which showed some signs suggestive of early degenerative change and slightly more marked degenerative change at T11/12.
20He attended his general practitioner for ‘severe neck pain’ on 7 January 2012 for which he was prescribed Panadol Osteo. He had an x-ray on 18 June 2012 after complaining of pain in the lumbar spine with no radiation after ‘weight lifting’. Mr Fisher says the pain in fact occurred after doing sit-ups but I do not think anything much turns on this. The x-ray of 18 June 2012 reports ‘moderate spondylitic changes at T11/12. No significant disc space narrowing is noted in the lumbar spine. No spondylolisthesis or pars defects noted’. He was prescribed Panadol Osteo, Mobic and Advantan.
21Mr Fisher says his doctor told him that he had a ‘shattered’ vertebrae, but he was later told by a physiotherapist in the Air Force that he had a disc bulge. He says his back recovered after doing physio exercises.
22There are no further medical records relating to or recording any back complaint prior to his employment with Multrans. He did have knee problems, a gastric ulcer, sinus and ear problems, and some myocardial investigations, none of which are relevant to this application.
23Mr Fisher identifies the incident on 25 October 2014 as the time his back was first injured during his employment. About three weeks after this incident, on 6 November 2014, he attended his general practitioner Dr Duong at Knox with what was diagnosed as sinusitis. The notes record:
left ear bulgy
red
tooth
small ulcers?
sinus congestion
runny for months
months ago had quinsy
Diagnosis:
Sinusitis.
There is no record of any complaints of back pain or back injury.
24He attended the Knox general practice 8 November 2014 and 12 November 2014 with left ear pain. He was ultimately referred for CT Scan. There is no record of any complaint of back pain at either of these attendances.
25Mr Fisher gave evidence that he was subsequently diagnosed with a broken tooth which was ultimately extracted. He described the pain as ‘horrendous’ and giving him trouble ‘into my ear’.[11]
[11] T55, L7-9
26The first mention of back pain after his employment with Multrans is on 9 July 2015 at South Gippsland Family Medicine where he saw Dr Aung. The record notes:
chronic low back pain since few yrs ago
started when doing sit-ups in the air force
had x-ray and MRI done then – Dr told shattered vertebrae, whereas physio told disc bulge
had some physio and got better but intermittently exacerbated esp after doing some physical work
- diesel fitter and truck driver at WA mines
recently exacerbated after moving stuff at home and then driving a truck with no suspension
taking Nurofen...”
He was sent for CT scan which showed a left lumbosacral disc protrusion affecting the left S1 nerve root. This is also the first mention in medical records of the truck in connection with his back injury.
27He returned to South Gippsland Family Medicine and saw Dr Mon on 13 July 2015 for the CT scan results. The record of that attendance notes:
nil limb restriction, or bladder or bowel problem. working at WA, no light duty, lifting things all the time.
He was advised that he needed to see Dr Aung for ‘clearance letter’.
28He saw Dr Aung on 6 August 2015 with back pain and he was referred to a neurosurgeon for advice.
29He completed a Worker’s Injury Claim Form on 11 August 2015 in which he identifies his injury as ‘lower back pain with referred pain down leg’ and attributes the injury to driving the truck without a suspension seat. He agreed that he had consulted his lawyer at the time of completing that claim form.
30He next attended his previous general practice in Knox on 12 August 2015 when he saw Dr Michael Ward. The notes of that attendance record:
45m woth back pain x of I5 s1 disc disease works as diesel fitter in mining industry.
31I assume that there are typos in this note and that what is reported is 45 months with back pain and T5/S1 disc disease. I do not know what ‘x of’ means in this context. I note that 45 months is an unusual period of time to record in months. One would expect this might more readily be reported as a period of years. It might also have been intended to record 4-5 months but it is impossible to know.
32The CT scan dated 12 August 2015 noted:
mild broad based disc protrusion at L3/4 and L4/5. L5/S1 showed degenerative changes within the disc. Large left posterior disc protrusion indents and compresses the theca as well as indenting and displacing the left S1 nerve root. Mild central canal stenosis. Extension of disc osteophyte into the left neural exit foramen with foraminal stenosis. Orthopaedic/neurosurgical review is suggested.
33He returned to Dr Ward on 14 August 2015 with ‘sciatica’ and was given a certificate for work. There is no record of Mr Fisher mentioning the truck as a cause of injury.
34He then saw Dr Aung at South Gippsland Medical Centre on 24 August 2015. Dr Aung has recorded:
Craig wondering if he gets this back problem from driving trucks with seats without suspension
…
explained that there is no way to prove that he got this disc protrusion from driving the truck
He subsequently saw Dr Aung on a couple of occasions for ‘WorkCover certificates’ but, it appears, not for any treatment. There was no further record of the truck in the medical records.
35He saw Dr Ward back at Knox again on 26 August 2015 for review of pain management. He was waiting for an appointment with an orthopaedic specialist and physiotherapy was recommended.
36He saw Dr Chow at Knox on 17 September 2015 for ‘right sided sciatica and left S1 nerve root compression’. Dr Chow has recorded a history of 6 months of lower back pain ‘from truck driving with poor suspension’.
37He saw doctors in Wonthaggi on two occasions in December 2015 with complaints of ear and sinus problems. The attendance on 24 December 2015 with Dr McCormick was primarily for ear issues but Dr McCormick also notes that he has a disc bulge and ‘massive prolapse’. I note this particular attendance as it supports evidence that Mr Fisher gave that he spoke with one of the doctors in Wonthaggi about his ear and also told him about his back. Mr Fisher could not recall that doctor’s name but the medical records suggest that he was referring to this consultation with Dr McCormick.[12] Mr Fisher did not say that he had told Dr Duong at Knox about his back, and indeed accepted in cross examination that he had not mentioned it.
[12] T23, L30-T24, L7
38Mr Fisher gave evidence that he had raised his back pain with another doctor in Wonthaggi, Dr Peter Ward. He thought that he may have raised this socially as Dr Ward was known to Mr Fisher’s brother and Mr Fisher had stayed at his brother’s property. He said he had seen Dr Ward in his rooms in about July 2015, or possibly at Wonthaggi Hospital. He later said that ‘maybe I didn’t see him, I can’t remember’. It would be fair to characterise his evidence about this conversation with Dr Ward as vague and contradictory. He variously said he was pretty sure that he had seen Dr Peter Ward, that he may have confused him with Dr Michael Ward, whose medical record was in evidence, and that he was sure he had told Dr Peter Ward that his back had started to hurt because of driving trucks with Multrans. It is difficult to accept this clear recollection of telling Dr Peter Ward that the truck caused his injury with his uncertainty about whether he ever spoke with Dr Ward about his back. I am not satisfied on the evidence that Mr Fisher did discuss his back or the truck’s role in his back injury with Dr Peter Ward prior to lodging his claim in August 2015.
39Mr Fisher was referred to neurosurgeon Professor Richard Bittar on 5 October 2015 for review and assessment. Professor Bittar diagnosed a large ruptured L5/S1 intervertebral disc prolapse with the extruded fragment occupying the majority of the cross section of the spinal canal at the L5/S1 level and causing severe compression of the thecal sac and the S1 nerve root. Professor Bittar opines that the ‘dominating contributing factor’ to Mr Fisher’s injury was his employment, specifically his workplace activities in October 2014 which ‘most likely resulted in a serious injury to the L5/S1 intervertebral disc with rupture of the nucleus pulposus through the outer lining of the disc material occurring at some stage after that and resulting in severe left sciatica’.
40Mr Fisher has had ongoing back problems. He had a microdiscectomy at L5/S1 on 12 October 2018 when his condition was not improving after conservative treatment. He did not have a good result from that procedure and continues to experience pain and restrictions in his spine. His spine has become unstable since his surgery and he had a recurrent disc prolapse. He continues to get referred pain into the leg. He has some left S1 radiculopathy.
Cause of Injury
41The primary issue in this case is whether Mr Fisher can establish that it was his employment with Multrans that caused his injury. Mr Fisher’s evidence is that his back pain started shortly after he started driving the truck, that there was a specific occasion on 25 October 2014 when he was jarred or jolted that caused severe pain radiating down his leg, that although that acute pain subsided, his back continued to worsen and the pain was aggravated by a number of other occasions of being jarred or jolted. It was squarely put to him that his injury was not caused during his time at Multrans. There are five matters that the defendant relies on to disprove Mr Fisher’s claim:
(a) that he did not raise any complaints of back pain or seek medical advice about his back during his time with Multrans;
(b) that he did not complain about the suspension or the seat on the truck while at Multrans;
(c) that he was able to pass a medical assessment with Stellar Recruitment in April 2015 after he had left Multrans;
(d) that he did not seek medical treatment for his back until after he had finished at Multrans and only after working in the mines for some months for Stellar Recruitment;
(e) that the acceptance by the employer of Mr Fisher’s statutory benefits claim did not constitute an admission that he had suffered injury in compensable circumstances.
Complaints of Pain
42In his Worker’s Injury Claim Form Mr Fisher says he complained to Mr Mullens a few days after 25 October 2014 about his back and the lack of suspension in the seat. He says he thought the pain would resolve. In response to the question on the claim form as to whether he had a previous injury he said, ‘I have had some prior back pain however nothing like this and never referred pain to my left leg’. In cross examination he said he would have possibly referred to logbooks to arrive at the date of 25 October 2014.[13] He said he specifically remembered an incident when his back got badly jarred.[14] He said that ‘I had jarred my back on that particular day but I had no idea, like it had injured my back badly…I had this referred pain or shooting pain. I was smashed from going in the 47 metre truck owned by Multrans on Princes Highway and… felt a really strange sensation but it was an instantaneous bang and then my back was sore after that, but it progressively became sore the more I drove the truck. So at that stage I didn’t think anything major was wrong.’[15]
[13] T48, L26
[14] T48, L27
[15] T50, L20-29
43It was put to Mr Fisher that he had not made any complaints to his employer about the suspension of the truck whilst he was driving it, or reported any injury or back pain. Mr Fisher said he had complained to Mr Mullens and told Mr Mullens the truck was hurting his back and they had a discussion about getting a new seat at some stage.[16] He said he had told Mr Mullens the truck was ‘going to wreck my back’.[17] He maintained that he did ‘bring up the fact about the truck had a poor ride and I wasn’t going to – it was going to hurt my back’. He was not sure whether he had told Mr Mullens about the jolting incident on 25 October 2014.
[16] T73, L1
[17] T73, L19
44Mr Mullens says at no stage did Mr Fisher complain of any low back issue or trouble associated with driving the vehicle and that the first he knew that Mr Fisher was saying he hurt his back at work was when the claim form was submitted.[18] He says the truck was used prior to Mr Fisher’s employment and continuously used for two years after he left Multrans and no other person reported any issue driving the vehicle. Mr Mullens was not cross-examined on his evidence.
[18] Defendant’s Court Book (“DCB”) 5-6
45The fact that he did not mention any back complaints at the time of his medical attendances on Dr Duong within weeks of 25 October 2014 was the subject of cross examination:
Mr McKenzie: …the reason there is no mention of your back is that your back wasn’t causing any difficulty what do you say?
Mr Fisher: Ah no, I would say that I had a big hole in my tooth and that was my main focus.
Mr McKenzie: And I suggest again that if you’d had this traumatic incident, that you described to Her Honour with the jolt of your back on 25 October 2014, you would have mentioned it to this doctor on 8 November 2014?
Mr Fisher: It just jarred my back like I said. You know, like I thought it would get better my back. It wasn’t my focus for this doctor. I had some, like I said, some very bad tooth pain and that’s what I was focussed on there. And, in fact, I had to get that tooth – I couldn’t see an endodontist and it caused me a big headache, so my main concern probably was just the tooth at that stage, the tooth and the ear infection.[19]
…
McKenzie: And I suggest again that this is about three weeks after the 24 October 2014 still no mention of any back problem. Do you agree?
Fisher: Ah that’s correct, yeah. Because like I said the tooth was giving me severe pain
McKenzie: And I suggest again -sorry I cut you off there?
Fisher: I think that was probably the least of my worries my back. At that stage it would be the tooth.
[19] T57, L16-30
McKenzie: Or as I’ll be suggesting to Her Honour, you didn’t have any back pain and that’s why you weren’t telling doctors about it at the time. What do you say?
Fisher: I would say no, I would say that truck caused me back pain. I maintain that caused me back pain. Like I said, it was jarred badly and I had like pain from that shock but then, of course, it was not like horrendous but slowly it deteriorated over time in driving that truck. It wasn’t the only time I jarred it.[20]
[20] T 58, L10-25
46I accept that, in circumstances of horrendous tooth pain, a patient might not mention an incident of jarring back pain a couple of weeks prior, especially if the acute pain had subsequently subsided to a manageable level. I generally found Mr Fisher to be an honest and credible witness. There were occasions when his recollection was vague and occasions when I felt that he was overstating his evidence. I am not persuaded that whatever he might have said to Mr Mullens about his back amounted to clear complaints of back pain. In his mind, telling Mr Mullens that if he kept riding the truck, he would ruin his back might be a complaint. In Mr Mullen’s mind that might not amount to a complaint that Mr Fisher had injured his back. However, I do not consider that a lack of complaint to Mr Mullens necessarily means that Mr Fisher’s back was not injured in the way he describes. Nor do I consider that a lack of complaint about back pain to his medical practitioner at the time of the attendance for the tooth and ear problem is evidence that the back injury had not occurred.
Complaints about the truck
47Both Mr Fisher and Mr Mullens gave evidence that Mr Mullens had provided a list of faults related to the truck. In Mr Mullen’s affidavit he says that ‘the worker made complaints about the Travel Tower. He complained about mechanical things like kingpins and the like. All of the complaints made by the worker were investigated and we had the Travel Tower checked by a mechanic. The mechanic advised there was nothing wrong/defective with the vehicle’.[21]
[21] DCB 5
48In evidence was a list of items, with a handwritten notation identifying it as an email from Mr Fisher on 25 October 2014, which notes a number of what appear to be defects on the truck. These include ‘right rear steer wheel stud missing’, ‘bad earth on instrument cluster tacho stops working when headlights on’, ‘right front wheel kingpin play’, ‘muffler cracking on inlet side ewp motor’.
49Mr Fisher tendered two paid invoices from Ryan Repairs which appear to show that about $18,000 worth of work was done on the truck in January 2015, at least some of which appears to align with the defects noted in the list described above. The invoice has a hand written note that says ‘was put in around December 2014 and parts were ordered from Canada. Had to park travel tower until January’. This note is consistent with Mr Fisher’s evidence that the truck was off the road for repairs for much of December and would also coincide with his employment dates where he ceased work as a casual and returned in January 2015 as a contractor. However, there is no evidence as to who wrote that note or how it came to be on the invoice.
50This document tends to support Mr Fisher’s claim that there were many defects on the truck and is inconsistent with Mr Mullen’s evidence that Multrans was advised that there was nothing wrong or defective with the truck. However, it is notable that, despite this list of defects apparently dating from the very date that Mr Fisher identifies as the date that he sustained the severe jolt to his back, there is no mention of a problem with suspension on the truck or the seat. Although Mr Fisher said the list may not have been complete and he may have raised the seat and suspension issues at another time, there is no other evidence about this before me and Mr Mullen’s evidence is that this did not happen. Mr Fisher also mentioned another employee with whom he discussed the lack of suspension in the truck. This first came up in cross examination and was not the subject of any affidavit evidence. It is contrary to the evidence of Mr Mullens who says no one else has ever complained about the truck.
51I am satisfied that there were problems with the truck and the problems were raised by Mr Fisher to Mr Mullens. I am not satisfied that Mr Fisher complained to Mr Mullens or anyone else specifically about the suspension or the seat.
Post-Employment medical assessment
52After leaving Multrans, Mr Fisher obtained work as a serviceman in the mines in Western Australia through Stellar Recruitment. In order to obtain this position Mr Fisher submitted to a medical assessment on 14 April 2015. He was assessed as being medically fit for the role without restriction, his back fitness was assessed as ‘overall excellent’ and his musculoskeletal assessment was normal. Mr Fisher says, of that medical, that he ‘did what I needed to do’.[22] He says that he can ‘push through a lot of stuff’.[23] It was put to him that his results on that medical assessment were consistent with him not having a back problem at that stage. Mr Fisher refuted that suggestion. He said ‘I had a sore back, but obviously I’m not going to get a job if I say if I’ve got a sore back in the medical. The medical wasn’t that hard, to be honest with you, some medicals vary but, yeah, I mean I can understand your point’.
[22] T79, L5
[23] T79, L19
53The weight that can be given to his passing this medical assessment is reduced by the fact that, even after he been diagnosed with a large disc protrusion in 2015, he was still able to pass a number of medical assessments. He passed a medical assessment in 2018 and again in July 2019, less than 12 months after his surgery. He was assessed as able to perform squats, including sustained squats, a 5m duck walk and was able to lift various weights. He was also assessed as having a normal range of motion for all body parts. He was found fit to work as a plant mechanic. This finding is clearly inconsistent with his actual physical ability at that time.
54There is no doubt that Mr Fisher lied on his medical assessment forms and he accepts as much.[24] He understood that he was required to give truthful statements in these forms but said he had no prospects of obtaining work if he disclosed his back injury. Indeed, on the one occasion where he did disclose a prior back injury, which he did because the employer used a doctor that Mr Fisher had seen, he was terminated one day later without explanation. The risk of not disclosing his injuries was a risk that he would be terminated from the position. The risk of disclosing the injuries was that he would never obtain the position. Mr Fisher says he chose the path of non-disclosure, not because he is a dishonest person, but in order to get a job which he thought was the right thing to do. He said that ahead of a medical assessment he would ‘go double up on the Voltaren’ and ‘do what I gotta do to get a job’. He passed a medical assessment for WestTrac, for a job he ultimately did not accept as he was sore after the medical but was subsequently able to get employment with WestTrac as a trainer. His evidence was that he would not have got the job, even as a trainer if he had disclosed his back injury, even though the work as a trainer was a job he could manage with his back injury.
[24] T97,23
55The fact that he passed medical assessments, even after he was clearly suffering from a severe disc prolapse, and even after surgery which had not been successful and ultimately resulted in a further prolapse, leads me to conclude that Mr Fisher is a stoic man who will ‘push through’ pain when necessary and is highly motivated to get a job. I do not accept that he was able to pass the medical assessments because nothing was, in fact, wrong with him. I do not consider that his lack of honesty on his medical assessment forms significantly damages his credit.
56Passing the medical assessments does not equate with his actually being fit for the work required. Indeed, though he passed the Stellar Recruitment medical assessment he was unable to undertake the required work. I am not satisfied that passing the Stellar Recruitment assessment establishes that Mr Fisher was not injured at the time of that assessment.
First medical treatment for back occurred after his employment with Stellar Recruitment
57Mr Fisher commenced working with Stellar Recruitment but says he was unable to continue because of his back pain. It was put to him that his back pain commenced during the course of his work with Stellar. Mr Fisher refuted this.
‘…I had a sore back when I flew there. I was expecting to get better. I didn’t declare it on my medical because I knew I wouldn’t get a job if I did. Um, I expected it to get better and it didn’t get better. I then flew home and I rested and it still didn’t get better, so I went to the doctor finally…’[25]
[25] T85, L29-T86, L4
58It was put to him that his history to the various general practitioners he saw was inconsistent with his injury having been caused by his work at Multrans. In particular a number of those attendances record that he was a heavy duty mechanic or worked in the mines. Mr Fisher’s explanation was that he would likely have been answering a question about his work, which, at the time, was as a mechanic in the mines, rather than attributing his injury to that work. It is clear that at his attendance on Dr Aung, on 9 July 2015, well before he lodged his claim, he identifies driving a truck without suspension as having exacerbated his back. The way in which different medical practitioners take medical histories and record notes can only shed a fairly opaque light on what was actually said. I am not satisfied that the references to Mr Fisher’s work as a heavy duty mechanic means that he was attributing his problems to that work nor that any of the recorded history is inconsistent with Mr Fisher’s evidence.
59Mr Fisher’s explanation that he first sought medical assistance when his back pain did not improve after ceasing employment with Multrans, when he expected it to do so, is reasonable.
60His treating neurosurgeon, Professor Bittar, attributes his injuries to his work with Multrans, though also says the injury sustained in October 2014 likely worsened later, progressing to a rupture.
61Mr Awad, neurosurgeon, retained as a medico-legal expert by the plaintiff, provided three reports dated 8 October 2020, 29 October 2020 and 23 December 2020. He concurred that the Multrans employment was the ‘dominant contributing factor to his acute disc prolapse and a significant contributing factor to aggravation of his lumbar spondylosis’.
62Mr Dooley, orthopaedic surgeon, retained by the defendant, provided two reports dated 22 January 2020 and 11 February 2020. In his first report he concluded that in the course of Mr Fisher’s work he sustained a left sided lumbosacral disc prolapse. In his second report he was asked to consider the lack of a report of any back trouble to the defendant and the recorded results of the examination on 15 April 2015 (the Stellar Recruitment examination) and to give his opinion as to whether having regard to these factors, Mr Fisher’s injury was attributable to the work with Multrans. He said that ‘the additional information would lead me to form the view that one cannot say on the balance of probabilities that the disc prolapse occurred during the driving work of October 2014 to early 2015. As previously noted, the disc prolapse could have developed spontaneously as part of the natural evolution of underlying degenerative disc disease. It could have developed consequent upon Mr Fisher’s mining work in Western Australia’. He goes on to say that ‘it is most unlikely that at this time, i.e. April 14 2015, that Mr Fisher had an established symptomatic lumbosacral disc prolapse’.
63Mr Simm, orthopaedic surgeon, provided a medico-legal report for the defendant dated 20 August 2020. Mr Simm opines that Mr Fisher has long standing L5/S1 lumbar disc degeneration and that by August 2015 his pathology was consistent with longstanding advanced internal disc disruption. His view is that the degenerative process greatly disrupted the structures, particularly the intervertebral disc at L5/S1 and that, in these circumstances, spontaneous disc disruption can occur. He considers it possible but unlikely that what he reports as ‘minor unreported symptoms’ whilst driving the truck were an indication of damage or deterioration of the degenerate L5/S1 which brought forward the date of the more severe symptoms and subsequent disc prolapse sometime after ceasing that work, but considers that Mr Fisher most likely had a ‘largely spontaneous disruption and protrusion of the L5/S1 disc’ which evolved over time and ‘was essentially spontaneous’. It is not clear from Mr Simm’s report why, given that the degenerative changes noted on radiology in 2012 were at L11/12, that degenerative process would cause such a substantial disruption at L5/S1 several years later in the absence of some particular event. One would expect that, if Mr Fisher’s injury can be solely attributed to the natural progression of underlying disease, L11/12 would have continued to give him pain and restriction throughout the period from 2012.
64In weighing up the different opinions of the experts, I place significant weight on Professor Bittar’s assessment. He saw Mr Fisher in October 2015, relatively close in time to his work with Stellar Recruitment. He was aware of Mr Fisher’s employment in the mines but was still satisfied that his description of his work with Multrans was consistent with the injury he sustained in the course of his employment.
65Apart from the back pain he experienced in 2012 which x-ray showed was at a different spinal level and which, on Mr Fisher’s evidence which was not seriously challenged, resolved after some physio, there is no evidence that his injury pre-dates his employment with Multrans. The 2012 back injury did not prevent Mr Fisher from joining the Air Force, undertaking a further apprenticeship and working as a FIFO heavy duty mechanic for five months. I am satisfied that, whilst he may have had some intermittent back pain and some degenerative changes, the claimed injury was not present prior to his employment with Multrans.
66I am satisfied based on my assessment of Mr Fisher’s answers in cross-examination and the medical material before me, that his injuries are consistent with having been caused by the employment with Multrans.
Acceptance of claim for compensation
67Mr Fisher filed a claim for compensation on 12 August 2015 and that claim was accepted by the employer for weekly payments and medical and like expenses, as well as an impairment benefit. Consistent with the observation in Ansett v Taylor,[26] Counsel for Mr Fisher says that the acceptance of a claim should ordinarily be regarded as an admission that is very significant, albeit not conclusive, having regard to the serious consequences that flow from the acceptance of a claim.
[26] [2006] VSCA 171 at [3]
68Counsel for the defendant submits that the position at which the Court arrived in Ansett ought not be elevated to too high a level. In the case of Sednaoui v Amac Corrosion Protection Pty Ltd,[27] the Court of Appeal upheld the decision of the trial judge who found that, notwithstanding the defendant’s acceptance of the plaintiff’s impairment claim, he was not satisfied that the applicant had sustained a compensable injury in the course of his employment. The Court of Appeal expressly rejected the notion that the observation of the Court in Ansett that an admission ‘should ordinarily be regarded as very significant’ was a statement of legal principle. In Sednaoui there was conflicting evidence about the facts of the case. The plaintiff himself accepted that the date and time of the event which he alleged caused his injury, was incorrect. The fact that the claim had been accepted by the insurers of the employer did not, in the circumstances of that case, amount to an admission that was of such significance as to ‘almost be determinative of the issue in dispute’.[28] The admission was one ‘piece of evidence that had to be weighed in the balance against what might reasonably be thought to be a substantial body of evidence to the contrary’.[29]
[27] [2017] VSCA 66; 52 VR 247 at [67]
[28] Ibid at [61]
[29] Ibid at [62]
69I accept the defendant’s submission in relation to Sednaoui that the acceptance of the claim for statutory benefits is one piece of evidence to weigh in the context of all the other evidence. I do not consider that the acceptance of the claim is determinative of the issue in dispute in this case. On the claim form Mr Mullens noted that Mr Fisher had not complained about his back during his employment and had left his employment to go and work on the mines. Notwithstanding that information, the claim was accepted. This is evidence, at the very least, that Mr Fisher’s description of events and the circumstances of his injury was plausible and was not rejected outright by his employer. I put it no more highly than that.
70Looking at the various elements of the case put against Mr Fisher, I am satisfied that Mr Fisher did sustain his injury during the course of his employment with Multrans. His injury is consistent with his version of events. He has identified the lack of suspension in the truck as a cause of his injury since July 2015, prior to lodging his claim. There is no other competing cause for his injury other than a natural progression of degenerative disease or some unspecified injury from his work with Stellar Recruitment about which there is no evidence. Whilst I am not convinced that he complained either of back injury or the lack of suspension to his employer, I am satisfied based on my assessment of Mr Fisher’s answers in cross-examination, and the medical material before me, that his employment with Multrans was a significant contributing factor to his injuries.
Pain and Suffering Consequences
71Mr Fisher says his ongoing pain and restrictions impact all aspects of his life. He takes at least one and a half tablets of Panadeine Forte on a daily basis and sometimes up to four a day. He takes 50mg of Voltaren daily and sometimes 100mg. He has also recently commenced taking Fluoxetine, an SSRI for depression.
72He cannot work in his chosen profession as a heavy duty mechanic, nor be employed as a truck driver. He cannot do weight training or go running, ride a jet ski, motorcycle, quad bike, go surfing or boating. Driving for long distances aggravates his pain. He can sit or stand for an hour or two before his pain deteriorates.
73He can undertake his activities of daily living, but with modifications. For example, he uses a self-propelled lawn mower, a kneeling pad and a pick-up stick. He has travelled overseas but less often than before his injury. His sleep is disturbed nightly and he ‘tosses and turns’. He eats standing up and then reclines in a lounge chair to minimise his back pain.
74There was no real challenge to the pain and suffering and limitations that Mr Fisher says he experiences as result of his injury.
75Mr Fisher must prove that he has suffered a permanent injury that, when compared with other cases in the range of possible impairments, may fairly be described as being more than ‘significant’ or ‘marked’ and as being at least ‘very considerable’.
76He is in constant pain for which he takes daily, strong medication. He is limited in all aspects of his life and is unable to work in his chosen profession. He undertook a second apprenticeship at a relatively advanced age and is now precluded from fully using those skills. His sleep is disturbed nightly. He presents as a stoic man who continues to attempt to find suitable work and continues with activities even when they cause him pain. I find that the injury Mr Fisher has sustained to his lower back satisfies the ‘very considerable’ test I am required to apply.
Impact of injury on earning capacity
77Prior to his employment with Multrans, Mr Fisher was working as a heavy duty diesel mechanic in mines as a FIFO worker. He had only been employed in this capacity for about five months after completing his apprenticeship before he left to work at Multrans. His evidence is that it was always his intention to return to work in the mines, where he could earn good money. His counsel submitted that his without injury earnings should be assessed at $285,000, notwithstanding that Mr Fisher had never earned that amount. Counsel submitted that that amount most accurately reflected his earning capacity as he only completed his apprenticeship partway through the 2013-2014 financial year. After completing his apprenticeship, he worked for 23 weeks as a qualified heavy mechanic with NRW Holdings Limited and earned $126,346.22 during that period which would give annualised earnings of $285,652.32 or $5,493.31 per week.
78The defendant submits that the plaintiff’s earnings never came close to $285,000 and given that his earnings were so variable, the fair and reasonable method to determine his without injury earnings is to average his earnings for the three years prior to his employment with Multrans. This gives a figure of $108,122 gross per annum or $2,079 gross per week.
79It is not in dispute that Mr Fisher has worked since his injury and retains some earning capacity. It is also not in dispute that Mr Fisher cannot return to work as a truck driver or heavy duty mechanic. Experts for both parties agreed that he cannot do heavy physical work involving heavy lifting, bending and twisting.
80Since the injury he has had a number of jobs, including as a trainer with WestTrac earning the equivalent of $1,477, and with Industry Training & Workplace Services Pty Ltd earning $1,538 per week.
81The defendant relies on an expert report of Recovre which identifies employment that would be suitable for Mr Fisher, given his limitations. Those jobs include Automotive Service Advisor, Workshop Administrator and Order Clerk, Truck allocator and despatcher, and a trainer. The wages Mr Fisher could earn in those occupations range from $1,140 per week to $1,846 per week. The higher figure relates to Mr Fisher’s employment with WestTrac but based on the pay slips tendered in evidence from WestTrac, this amount appears to include the superannuation component of Mr Fisher’s pay. Removing the superannuation component would reduce the range of post injury earnings that the defendant says Mr Fisher could achieve to $1,140 to $1,528. For reasons I will come to, this does not make any significant difference to the outcome.
82It is true that Mr Fisher did not ever earn the sort of figures that his counsel submitted I should find to be his without injury earnings. However, prior to his injury he did not have a full year working as a qualified heavy duty mechanic and his earnings before this qualification are not, in my view, representative of his without injury earning capacity. I do not consider that taking an average of his earnings across the three years prior to his injury is a just and reasonable assessment of his without injury earnings. However, I am also not satisfied that he would have continued to earn $285,000 but for his injury. His work history shows that he has turned his hand to many different jobs. On his evidence he gave up lucrative FIFO work after only five months to tend to a personal relationship, even though this meant accepting lower paid work. I am not satisfied that he would have continued as a FIFO worker uninterrupted given his employment history. His employment history demonstrates a person who has moved around and done many different things, including driving a taxi, farming, military service, cleaning and service station attendant. He is not someone who has worked in one occupation or with one employer long term. Given that he tried to return to FIFO work post injury, it is likely that, but for the injury, he would have had periods of employment in the mining industry as a FIFO. However, I think it is likely that he would have interspersed FIFO work with periods away from the mines, likely earning lower wages.
83Doing the best I can on the available material, I consider that a fair and reasonable assessment of his without injury earnings is in the order of $180,000 per annum or $3,461 per week. This is what he earned in the financial year prior to his injury where he worked for some period as a heavy duty mechanic and for some period in other occupations.
84I find that his current earning capacity is no more than $80,000 per annum or $1,538 per week which represents significantly more than a 40% reduction of his pre-injury earnings. Even if the higher figure put by the defendants of his current earning capacity were to be accepted, it would still fall well below 60% of his without injury earnings. Consequently I am satisfied, pursuant to s325(2)(e)(i) that, as at the date of the hearing, Mr Fisher had suffered a loss of earning capacity of 40% or more and that pursuant to s325(2)(e)(ii) that loss of earning capacity will continue permanently.
85Accordingly, leave shall be granted to commence common law proceedings for damages for pain and suffering and loss of earning capacity.
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