Flintrop v The Austral Brick Co Pty Ltd; Flintrop v ARB Corporation Ltd
[2016] VCC 2114
•17 March 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-14-06118
CI-14-06121
| HENDRIECUS JOHANES DORITOS MARIA FLINTROP | Plaintiff |
| v | |
| THE AUSTRAL BRICK CO PTY LTD | First Defendant |
| and | |
| ARB CORPORATION LTD | Second Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Third Defendant |
---
JUDGE: | HIS HONOUR JUDGE WISCHUSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 February 2016 | |
DATE OF JUDGMENT: | 17 March 2016 | |
CASE MAY BE CITED AS: | Flintrop v The Austral Brick Co Pty Ltd & Anor; Flintrop v ARB Corporation Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 2114 | |
REASONS FOR JUDGMENT
- - -
Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury application – injury to the lumbar spine sustained in the course of employment with two defendants – pain and suffering and pecuniary loss damages
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Petkovski v Galletti [1994] 1 VR 436; Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622; Church v Echuca Regional Health (2008) 20 VR 566; Doolan v Rayners Sawmills Pty Ltd & Anor [2008] VSCA 219; Dwyer v Calco Timbers Pty Ltd (No 2) (2008) 234 CLR 124; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Halpin v Wilson Transformer Co Pty Ltd [2012] VSCA 235; Humphries & Anor v Poljak [1992] 2 VR 129; Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605; Altona Bus Lines & Anor v Lococo [2002] VSCA 159; Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis (2007) 15 VR 649; R J Gilbertsons Pty Ltd v Skorsis (2000) 12 VR 386; Sabanovic v Atco Controls Pty Ltd [2009] VSCA 143; Sabo v George Weston Foods [2009] VSCA 242; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108; State ofVictoria v Rattray [2006] VSCA 145; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Guppy v Victorian WorkCover Authority [2010] VSCA 164
Judgment: Case No. CI-14-06118: The plaintiff is granted leave to bring a proceeding for the recovery of damages for both pain and suffering and loss of earning consequences of the serious injury sustained throughout the course of his employment with the first defendant.
Case No. CI-14-06121: The plaintiff is granted leave to bring a proceeding for the recovery of damages for the pain and suffering and loss of earning consequences of the injury at the second defendant in December 2012.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R W McGarvie QC with | Slater & Gordon |
| For the First Defendant | Ms M Britbart SC with | Thomas Geer |
| For the Second Defendant | Ms R N Annesley QC with Mr P A Johnstone | Minter Ellison |
HIS HONOUR:
1 In these two proceedings the plaintiff seeks leave to bring a proceeding for the recovery of damages against his former employers. In the first proceeding, CI‑14-06121, the leave sought is against The Austral Brick Co Pty Ltd (“Austral”) in respect of an injury to his lumbar spine sustained over the course of his employment with Austral, which ended in late 2011. In the second proceeding, CI-14-06118, the leave sought is in respect of an injury to his lumbar spine sustained in the course of his employment with ARB Corporation Limited (“ARB”) in December 2012. Although they are separate proceedings, in the course of the hearing, and in chronological order of the employments, Austral was often referred to as the first defendant, and ARB the second defendant.
2 Discussions with counsel at the commencement of the proceedings identified the issues in dispute. In respect of the first defendant, there was no issue that the heavy nature of the plaintiff’s work[1] over a period that spans nearly twenty-four years is, or was, a cause of the degenerative lumbar disc disease identified in the great many medical reports tendered in the case. In respect of the first defendant, the issue was whether, in its pain and suffering and its loss of earning consequences, the injury was “serious” in the required sense.[2] The issue in respect of the injury sustained in the course of employment with the second defendant was identified to be whether that injury resulted in any more than a temporary exacerbation of the established lumbar disc disease, and, if it did, whether the plaintiff could establish consequences arising only from that injury which met the statutory tests.[3]
[1]Described in his first affidavit at paragraphs 7 and 8
[2]Important amongst the matters raised on behalf of the first defendant was the issue of aggravation by injury with the second defendant, and whether, when the Petkovski v Galletti [1994] 1 VR 436 comparison was made, the evidence could establish serious injury consequences of which injury with the first defendant was a cause.
[3]The relevant principles to be applied when considering whether an injury is a “serious injury” are set out in s134AB and are explained in many decisions of the Court of Appeal, including –
§Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
§Church v Echuca Regional Health (2008) 20 VR 566
§Doolan v Rayners Sawmills Pty Ltd & Anor [2008] VSCA 219
§Dwyer v Calco Timbers Pty Ltd (No 2) (2008) 234 CLR 124
§AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309
§Haden Engineering Pty. Ltd. v McKinnon [2010] VSCA 69 at paragraph [47]
§Halpin v Wilson Transformer Co Pty Ltd [2012] VSCA 235
§Humphries v Poljak [1992] 2 VR 129
§Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605
§Altona Bus Lines & Anor v Lococo [2002] VSCA 159
§Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis (2007) 15 VR 649
§Petkovski v Galletti (supra)
§R J Gilbertsons Pty Ltd v Skorsis (2000) 12 VR 386
§Sabanovic v Atco Controls Pty Ltd [2009] VSCA 143
§Sabo v George Weston Foods [2009] VSCA 242
§Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108 and
§State ofVictoria v Rattray [2006] VSCA 145
§Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181
§Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292
§Sutton v Laminex Group Pty Ltd (2011) 31 VR 100
The evidence
3 Only the plaintiff gave evidence before me. He was cross-examined by counsel for each of the defendants on the content of his affidavits and from medical histories and clinical records. The parties tendered medical reports and radiological investigations, claim documents, clinical records and rehabilitation material from their court books.[4] At the close of the evidence I was provided with written submissions to which counsel spoke.
[4]Plaintiff’s Court Book (“PCB”) pages 12A-14, 18-19, 22-27, 48-66, 71-163; Defendant’s Court Book No 1 (“D1CB”) pages 3-7, 8-9, 60-63, 67, 77, 92-120; Defendant’s Court Book No 2 (“D2CB”) pages 1-306
Background
4 The plaintiff was born in November 1972 and is presently forty-three years of age. He left school after Year 9 at the age of sixteen. He had not been a good student and suffered from learning difficulties whilst at school and more recently has been assessed as having limited literacy and numeracy skills.[5] The plaintiff has also suffered from long-standing social avoidance and anxiety.[6]
[5]PCB 159, PCB 98
[6]Detailed in Dr Verhoef’s patient assessment in July 2009, D2CB 175-177
5 Soon after leaving school he commenced employment with Austral[7] as a labourer, later also as a plant operator, and he continued in this employment until he was retrenched in late December 2011. It was not in dispute that aspects of his work at the brickworks required heavy lifting and frequent bending and twisting. It was not in dispute that the performance of this work over the years caused, or at the least was a significant contributing factor to, the progression of his lumbar disc disease.[8]
[7]In various guises over the years, Austral was more commonly known as “Nubrik”
[8]As it happened, the plaintiff underwent an MRI scan at almost the exact time his work at the brickworks came to an end – PCB 60 – the radiologist concluded that the examination showed “mid to lower lumbar spondylosis. The most significant finding is at L5 S1. Central to left paracentral disc protrusion indents the theca in between the budding S1 nerves. Protruded disc contacts the left S1 nerve. Shallow central disc protrusion at L4/5. Moderate central to left paracentral disc extrusion at L3/4 causes thecal indentation but no neural compression”.
6 Over the years at the brickworks the plaintiff had a number of episodes of low back pain, and I will set them out later.
7 After his retrenchment, the plaintiff was off work until he found further employment in about March 2012. The plaintiff had a number of jobs in that calendar year, some of which he obtained through an employment agency. The most sustained periods of employment were with Veyance Belting and the Cabrini Linen Service. The plaintiff experienced back pain in both of those jobs and resigned from them because of it. On 1 November 2012, through a family connection, he obtained employment with ARB. Initially, at least, his work at ARB was operating a press at bench height, but then his work changed so that he was engaged directly in the handling of canopies which were manufactured to fit to four-wheel-drive utilities and the like. On 17 December 2012, the plaintiff was lifting a four-wheel-drive canopy with a work colleague. As he did so,[9] he experienced sudden severe low back pain. An MRI scan was performed two days later (by the same radiology service as the year before) and a different radiologist commented:
“Three level disc pathology is shown with disc space narrowing, loss of T2 signal and annular fissures. This would most likely account for back pain. The discs have resolved slightly when compared with the previous study. Radicular compression or displacement is not seen.”[10]
[9]He felt a “pop” in his back
[10]PCB 62
8 Apart from a brief return to work on light duties in January 2013, the plaintiff has not worked since.
Chronology of injury and treatment
9 There was not much dispute about this, and what follows is taken from the plaintiff’s affidavit and reference, in particular, to clinical notes from the plaintiff’s usual treating general practitioner, Dr Verhoef, and to the notes of a clinic near to his work to which his superiors at Austral sometimes took him.
10 In his affidavit, the plaintiff recalled back pain in the year 2000, followed by a diagnosis of muscle strain and the prescription of anti-inflammatories, he referred to several aggravations to his back of varying severity which he reported to his employer, who received them unsympathetically. He recalled particularly painful incidents in January and December of 2011 following shovelling for long periods of time in an awkward space.[11]
[11]PCB 50, 51
11 The plain x-rays in 2000 were regarded as normal, and clinical notes from the Craigieburn Medical Centre[12] record attendances for low back pain in October 2000 and May of 2002. Dr Verhoef’s notes have references to back pain going back to 2008 (as well as histories of a longstanding social phobia, and psychological treatment to deal with this).[13]
[12]DCB2 76-90
[13]D2CB 112
12 The plaintiff recalled a particularly painful episode of back pain that he experienced on 21 January 2011 when shovelling.[14] He presented the next day to the Maroondah Hospital Emergency Department[15] with a history of pain worsening over the last 24 hours, such that he could not get out of bed, or the car, and he complained of radiation to the backs of the thighs and paraesthesia, reporting some improvement after the analgesia he had received in triage. The history included previous back pains following exertion. Plain x-rays that day showed mild anterior wedging of T12 and L1 suggestive of a mild compression fracture and an otherwise normal lumbar spine with preserved disc height.[16] He saw Dr Verhoef on 8 February 2011 and the consultation is reported in his letter to the plaintiff’s solicitors of 21 February 2014[17] and in his clinical notes.[18] At that consultation it was recorded that although he was on light duties, his employer was trying to get him to do more. The Endone he had been taking was ceased and he was told to continue Panadol and Nurofen and not to do work that risked aggravating his back injury.
[14]He reported this at work, PCB 12(a)
[15]D2CB 213
[16]D2CB 190
[17]PCB 71
[18]D1CB 97
13 On 9 December 2011, the plaintiff experienced lower back pain radiating into both buttocks and to the calves and feet, with numbness following lifting and digging at work. He attended Dr Verhoef the next day.[19]
[19]The incident is described in his Claim Form (PCB 13), his history to Dr Verhoef (PCB 71) and in Dr Verhoef’s notes (D1CB 98)
14 In his affidavits the plaintiff’s account of the history of his back pain is lacking in detail. It emerged in his cross-examination that he suffers from considerable difficulty with memory, and although, when prompted, he was able to remember some detail of the events he was taken to, unprompted, he did not have much in the way of specific recall of his back symptoms from time to time or of what had happened to him. In his affidavits, he set out his history of back problems at work in paragraphs 9, 10 and 11.[20] Returning to the subject in his most recent affidavit, sworn in January of this year, he added:
“I refer to paragraphs 7, 8 and 9 of my previous affidavit and confirm that the contents are accurate. I confirm I suffered multiple aggravations of my back injury over the years and I am unable to recall the precise dates of each incident and/or episode of back pain.
I refer to paragraph 10 of my previous affidavit. I confirm that in 2012, I worked in various roles, mostly through agencies and mostly for short periods. I worked as a cleaner, packer, picker, machine operator, hospital worker (cleaning linen) and factory worker. I found all of these roles difficult, however some were more difficult than others. I tried to do my best to hold down work, however I was unable to continue in some of these roles, as I was not able to cope due to pain.”[21]
[20]PCB 50-51
[21]PCB 57
15 When taken to these matters, the plaintiff often accepted the accuracy of the general practitioner’s recording of his back pain and what had led to it from time to time. As it happens, in this case, his treating general practitioner, Dr Verhoef, seems to be a very careful recorder of histories, and it was scarcely suggested that he had not accurately recorded what the plaintiff told him at various times about his back problems.
16 After seeing the plaintiff following the events of 21 January 2011, Dr Verhoef did not see him again in relation to back problems until 10 December 2011. On that day, he recorded a history of back pain radiating into both buttocks, hamstrings, calves and feet, with paraesthesia in the feet, as a result of heavy lifting and bending on 9 December 2011. The earlier injury in January is noted with the history “this gradually settled but he has continued to get low back pain whenever the work is too heavy”.[22] Examination revealed tenderness at L5-S1, limited straight leg raising and decreased sensation in the toes of the left foot, and he was sent for an MRI scan and physiotherapy. Although seen for other problems in the months that followed, the only record in Dr Verhoef’s notes of back pain early in the year 2012 is a presentation on 17 March 2012 when the notes record:
“Pinching feeling in back now and then, especially with twisting movement and twisting and bending … working part-time via agency. Instruction re stretching and heat, re strengthening exercise.”[23]
[22]D1CB 98
[23]D1CB 98
17 Dr Verhoef did not see the plaintiff again in relation to back problems until 9 October 2012.
18 Later that year, in July 2012, the plaintiff attended Dr Chandra at the Mooroolbark Super Clinic for an upper respiratory tract infection and back pain.[24] He returned to this clinic on 1 and 5 October 2012 for what turned out to be a rupture of the extensor digitorum tendon in the left hand, though the history of onset is not recorded.[25]
[24]D2CB 94
[25]Elsewhere referred to in the evidence, the finger injury was said to be the result of a fall when his back pain came upon him whilst getting out of the car.
19 The plaintiff’s account of his work activities over the year 2012 is vague, but reference to pay records in evidence show that from the week ending 6 May 2012, until the week ending 19 August 2012, he was employed by Veyance Belting Pty Ltd for a period of about sixteen weeks, during which time his earnings were on average $1,135.[26] Pay records for his work at the Cabrini Linen[27] show he worked on a regular, but not full-time, basis for the pay periods ending 26 August 2012 until 18 November 2012, so that some of this work overlapped with his work with ARB.
[26]D1CB 77, T152
[27]D1CB 67
20 As to his work with Veyance Belting and Cabrini Linen, he attended Dr Verhoef on 9 October 2012. Dr Verhoef’s notes[28] are consistent with his report[29] of that consultation, Dr Verhoef recorded:
[28]D1CB 99
[29]PCB 72
“10 W ago, Bayswater Conveyancing Belt back pain fell because of pain; didn’t say anything stopped that work, working elsewhere at hospital linen for last 6-7 weeks; has to pick up bags and throw them onto conveyancing belt, works 4-5hr shift, Back pain again; pain ® leg; got out of car fell to the ground, incontinent of urine.
When he fell first there (time?) he reached out with his hand injury (sic injuring) it and u/s shows ruptured tendon back of hand; wound got infected.
->MH booked to see specialist for assessment 17/10.
Still has LBP ->® sciatica but easing
Needs job with no lifting or bending
Taking Nurofen & Panadol
If persists – CT scan.”
21 On 3 November 2012, Dr Verhoef recorded:[30]
“Recurrence of LBP -> ® leg
MRI – L5-S1 disc bulge:
RI. Rep Naprosyn (???)
Daily exercises & stretches – (????) & back.”
[30]D1CB 99
22 Pausing here, I should mention that, to me, these two consultations are a clear indication that in the second half of 2012, at least, the plaintiff’s back condition was causing him considerable difficulty, that he did not cope with the work at Veyance Belting and Cabrini Linen, and that he was being advised to find lighter work. I mention this because it was Austral’s submission, based on another document prepared by Dr Verhoef, that his back was “asymptomatic” until the canopy lifting injury.
The events of 17 December 2012
23 In his affidavit, the plaintiff described transferring a four-wheel drive canopy with a workmate, from chest height to a pallet on the ground. He said that as he was doing this, his lower back “went” and he fell to the ground in severe pain. Medical records on that day[31] show that the first doctor he attended was Dr Murali at the Mooroolbark Super Clinic, where he advised Dr Murali that he had been unable to see his usual general practitioner for his chronic back pain, that he was seeing his general practitioner tomorrow and that he needed a certificate for today. The history recorded at 10.33am included:
“He has sprained his back at work today while picking something.
Does not want WorkCover as he is casual.
No Bewel [scil bowel] or bladder symptoms reported. No radiation of pain to legs or weakness reported. O/E walks with slight bending of back.”
[31]D2CB 92
24 The assessment was chronic back pain, bulging disc. Amongst the advice given was an instruction to attend hospital emergency if “getting worsening symptoms later today”.
25 Later that day, he attended Dr Verhoef, who recorded in his notes this history:[32]
“Recurrence of back pain.
- sudden onset of pain in lower back.
- felt something pop – while lifting a canopy at work – collapsed to ground and cannot move. Pain causes him to …[?].”
[32]D2CB 109
26 Dr Verhoef found him unable to get off the examination couch[33] and sent him to Maroondah Hospital in an ambulance. The hospital records are in evidence. The history of his presentation at 20:19 hours is at D2CB 165:
“Lumbar back injury 10-11 years ago with protrusion of L5 and S1. Chronic back pain most days, takes Panadol regularly. This morning approx. 0830 hrs whilst at work putting large object onto ground when states sudden onset lower lumbar back pain, at times with spasms, self resolving, sharp pain, shooting into both legs, lay on ground when onset of pain, assisted to car by workmates, driven self home but needed assistance to get out of car at home, taken Panadol at home with minimal relief, pain intensified over day, unable to get up off floor at one point due to pain, incontinent of urine due to this. This evening seen by GP – called AV for transport to hospital for further investigation/management. On AV arrival, pain 10/10, attempted IV but failed, given 300mcg IN fentanyl, reduce pain from 10 to 7, reduced frequency of spasms, able to weight bear with assistance to ambulance.”
[33]PCB 72
27 Reviewed two days later by Dr Verhoef, he had been given Diazepam and Endone by the hospital, and he gave a history that the employer wanted a guarantee that “this” would not happen again. Another MRI scan was ordered.
28 In January 2013, the plaintiff returned to work with ARB on light duties, but did not continue with them. The circumstances in which they ended were put to him,[34] and he agreed with the cross examiner that he had resigned, saying he had another job to go to. At the same time, Dr Verhoef had recorded being told that the company wanted a guarantee it would not happen again, and, soon after, the plaintiff reported to Dr Verhoef that, following an assessment by a company doctor, the second defendant had told him that they had to “let him go” because “it is better we cause no more injury to you”, and though there may be another job, that would only be for one or two months.[35]
[34]Transcript (“T”) 78, Line (“L”) 20 – T79, L11
[35]D1CB 99, DICB 100, recording consultations on 19 December 2012 and 14 January 2013
29 Next seen on 1 February 2013, he was still complaining of low back pain for which Naprosyn was prescribed, and he was referred to Mr Paul D’Urso, neurosurgeon, for opinion.
30 I should mention that on 13 March 2013, Dr Verhoef completed a medical practitioner questionnaire[36] in relation to the canopy injury, setting out the history given on the day and describing his pre-injury state, including a sentence that was referred to in cross-examination:
“The back had become largely asymptomatic since that injury (the 2011 injury) with only vague aching pains if he overdid things.”
[36]D1CB 109
31 I do not accept the proposition, put in cross-examination and in submissions, that that sentence accurately described the plaintiff’s clinical state in the calendar year 2012. His documented complaints of difficulty with the work at Cabrini, with Veyance Belting, and with the collapse on getting out of his motor vehicle, is by no means consistent with the description “vague aching pains”. Reference to the history recorded by Dr Verhoef on 9 October 2012,[37] and again on 3 November 2012,[38] show how greatly that expression understates the situation. In the questionnaire, Dr Verhoef wrote that the plaintiff’s condition “is consistent with the injury. Bending down to lift up a canopy is likely to cause recurrence of a previous disc prolapse, or cause initial prolapse if there had not been a prolapse before.”[39]
[37]PCB 72, D1CB 98
[38]D1CB 99
[39]D1CB 110
32 In March 2013, in relation to a question about the plaintiff’s prognosis, Dr Verhoef wrote:
“The patient will hopefully improve sufficiently to be fit for alternative duties within three months. He will not be able to return to any work involving repeated lifting, bending, pushing, pulling or twisting until his symptoms are totally resolved. He should never return to work which involves heavy lifting.”[40]
[40]D1CB 111
33 Mr D’Urso first saw the plaintiff on 21 May 2013 and, in his letter to Dr Verhoef, set out his history — that he had been unable to work since the “canopy event”, his examination findings, and his view that the MRI scans of December 2011 and December 2012 demonstrated prolapses at three levels with some minor left S1 nerve root impingement. His opinion was that the plaintiff had multi-level degenerative disc disease and prolapse. He recommended continuing conservative therapy and wrote a request for an epidural injection at L5-S1 to deal with the nerve root impingement and for diagnostic purposes. He wrote:
“Hank will not be able to go back to unrestricted employment or labouring activity. He will need vocational retraining into a light duties capacity.”[41]
[41]PCB 82
34 On 5 June 2013, the plaintiff underwent the L5-S1 epidural injection (with a modest improvement in pain at the time) and he was reviewed by Mr D’Urso on 13 August 2013.[42] In his letter to Dr Verhoef, Mr D’Urso wrote that review of the imaging confirmed multi-level degenerative disc disease at L3-4, L4-5 and L5-S1, with central prolapses and annular tears. He wrote that he had, in discussion with the plaintiff, touched upon the place of surgery, but described this as a “last resort” and said he had asked the plaintiff to continue with his medical management. On that day, Mr D’Urso wrote also to the WorkCover insurer seeking funding for hydrotherapy and physiotherapy.
[42]PCB 84
35 Mr D’Urso reviewed the plaintiff on 20 November 2013 and, in his letter to Dr Verhoef, noted that the plaintiff was caught in a dispute over his WorkCover insurance and was suffering from persisting back pain and bilateral sciatica, for which he was taking Endone, Panadeine Forte and Panadol. He suggested the plaintiff should go to a swimming pool whilst his liability was in dispute and Mr D’Urso gave him a prescription for Endep at night for difficulty sleeping, cautioning him against an increase in his narcotic medication.[43] Mr D’Urso confirmed his diagnosis that the plaintiff is symptomatic from multi-level degenerative disc disease “with evidence of prolapse in the left paracentral location at L3/4, centrally at L4/5 and at L5/S1”.
[43]D1CB 9, PCB 87 – cf the submission that Endep was not prescribed for his back pain, T143
36 As to his prognosis, he wrote that the plaintiff:
“… appears to have developed chronic back pain and sciatica as a result of his multi-level degenerative disc disease and disc prolapses. I suspect he will have persisting disability of a permanent nature into the foreseeable future.”
37 Dr D’Urso stated that the plaintiff’s condition was stabilised when last seen in November 2013, that a range of conservative measures would be appropriate, and that spinal fusion would be a last resort. He felt it likely that a degree of degenerative progression would occur, but this was difficult to predict.
38 As to the plaintiff’s capacity for work, Mr D’Urso wrote:
“With appropriate vocational retraining and assistance, Hank may have capacity for part-time light employment, but I would place permanent restrictions on his ability to perform repetitive bending, twisting, or lifting in the workplace. He should not be required to lift weight in excess of 10 kilograms …”[44]
[44]PCB 88
39 As to causation, Mr D’Urso wrote:
“It would appear that heavy physical labour performed over many years has contributed to the development of multi-level degenerative disc disease and prolapse. Specific incidences (sic incidents) in the workplace in 2002, 2011 and 2012 all appear to have precipitated the onset of symptoms and have been likely contributing factors to the development and progression of his condition.”[45]
[45]PCB 89
40 Since that time, the plaintiff’s treatment has been limited by a lack of acceptance of his WorkCover claims. Dr Verhoef’s reports chronicle his continuing consultations and variations in his symptoms and his frustration with the status of his WorkCover claims. A further MRI scan was performed in May 2014.[46] None of the medical commentators in the case state that anything new of significance was shown. The notes record a number of occasions on which relatively simple activities have caused aggravations of his symptoms and record in some detail the difficulty he had finding a comfortable position for sleeping. Summarising the plaintiff’s progress in February 2014, Dr Verhoef wrote:
“He has had many aggravations of his lumbar back pain, left leg pain, bilateral leg pain, and … He remains severely compromised for work in which he has experience and training and he has, as yet, not had any assessment for or any retraining in any other area of work. Suitable work would be any work that does not require him to repeatedly lift, bend, push, pull or twist. He has not achieved an adequate educational level necessary to enable him to do any office duties.”[47]
[46]The radiologist’s report is at PCB 65-66
[47]PCB 76-77
41 Consistent with a number of the histories, the plaintiff attended at the Maroondah Hospital’s Emergency Department on 4 November 2014 with an acute exacerbation of his chronic back pain from a simple twisting motion. He was treated with narcotic analgesia, Valium, referred for physiotherapy, and discharged home.[48]
[48]D1CB 8
42 In Dr Verhoef’s most recent report,[49] he notes that the plaintiff’s symptoms have persisted and he set out the plaintiff’s attendances in the year 2015, noting for example that in March 2015, his symptoms were such that he was prescribed Endone to be gradually replaced by Panadeine Forte, and also Temazepam to help as a sedative.
[49]PCB 78
The medico-legal reports
43 Each of the parties tendered medico-legal reports which I will now refer to in chronological order.
44 On 8 March 2013, the plaintiff was examined by Dr J S Pathak.[50] He took a history, reviewed the radiology and, in response to specific questions, described the plaintiff’s medical condition as:
“There is a three level disc pathology (L3/4, L4/5 and L5/S1) – midline annular fissure with disc protrusion and presence of facet arthropathy at all levels.”
[50]D2CB 4
45 As to what had caused the medical condition, Dr Pathak wrote:
“The worker’s injury was initially caused on 21 May 2002 at Nubrik, and aggravated when lifting a two person canopy on 17/12/2012.”
46 In answer to further questions, Dr Pathak wrote that the worker’s injury was an aggravation of a pre-existing disease, that in his clinical opinion, the worker could not return to his pre-injury duties at that stage, and did not have a current work capacity or a capacity for modified duties, noting that he would be able to return to work after adequate treatment “which he is not having at present”. Dr Pathak thought the plaintiff’s recovery was affected by a lack of treatment and, as to the very specifically framed question, “In your opinion, is the worker’s current condition and/or incapacity related to the incident in December 2012? If so, how is it related and when would you envisage this relationship would cease?” The doctor answered “The incident on 17 December 2012 has aggravated a pre-existing condition”.
47 On 9 May 2013, the plaintiff was examined on behalf of QBE Insurance by Dr George Wilson. Dr Wilson took a history which included that the plaintiff was relatively asymptomatic when he started at ARB and, after recording the incident of 17 December 2012, noted that the plaintiff told him that the plaintiff did not blame ARB for his problems. His symptoms at the time were of constant low back pain with radiation. Dr Wilson thought the plaintiff had significant lumbar spondylosis causing low back pain, that he had a capacity for alternative duties, which he could “certainly work part-time”, and that he was likely to have ongoing problems.
48 A later report from Dr Wilson was prepared following a worksite assessment, where he assessed a return to work plan created by an organisation called Nabenet, doing light assembly work at a bench, which he felt was appropriate for the plaintiff, recommending a gradual increase in hours and duties over a period of weeks, and noting:
“There is really nothing easier or lighter that ARB can offer. In my view, having examined him on 9 May 2013, I believe the duties described are well within his physical capacity to undertake in the manner outlined.”
49 In further correspondence dated 22 June 2013 (apparently, Dr Wilson had been asked to address the issue of whether the effect of the ARB injury had ended), he wrote:
“I think the main issue for Mr Flintrop is the underlying significant lumbar spondylosis. This is constitutional. I expect that the aggravation he may have had at ARB has now settled and his ongoing symptoms relate to the underlying degenerative changes.”[51]
[51]D2CB 19
50 I note that in that report, Dr Wilson does not identify any aspect of the history he had taken when he examined the plaintiff a month earlier that suggested when it was that the aggravation had settled.
51 The plaintiff was examined on 2 September 2014 by Mr Ian Jones, orthopaedic surgeon. On examination, Mr Jones found the plaintiff’s back movements to be very limited by evident spasm. He reviewed the MRI scans and it is difficult to ascertain whether he thought that there was a difference between the 2011 description of the L5-S1 level and the 2014 scan. He thought the plaintiff’s symptoms were due to multi-level disc degeneration and prolapse at L5-S1. Mr Jones did not believe he had recovered from the effects of the 2011 injury, and stated that he appeared to have exacerbated the disc prolapse in the lifting incident at ARB, although there was no appreciable difference on the MRI. He felt that employment at Austral was the major causal factor in the injury to the plaintiff’s lumbar spine and, of the reported injury at ARB, wrote:
“I do not believe that the reported injury suffered during his employment with ARB has been anything other than a minor aggravating factor to his previously injured L5/S1 disc. The patient appears to have recovered from the effects of the lifting incident with ARB.”
52 As to his capacity for work, Mr Jones wrote that the plaintiff would be “fit and capable of only sedentary employment if this were available”, and that he had “a permanent incapacity for physical employment”.[52]
[52]D2CB 55
53 Dr Robyn Horsley, occupational physician, examined the plaintiff on 23 October 2014 and, for the purposes of her examination, had all the medical reporting and radiology that preceded her examination, which she reviewed in some detail. Noting that the MRI of December 2012 demonstrated annular fissures which had not been seen in December the year before[53] in her analysis of the plaintiff’s history and the radiology, Dr Horsley concluded that he suffered the discal protrusions seen on the 2011 MRI, and after (what she described as) the second major injury (the canopy), the December 2012 MRI showed annular fissures which were new. On this basis, she concluded that he had sustained a significant injury both in December 2011(with Austral) and in December 2012 (with ARB). At the time she saw him, the plaintiff presented with “a significant loss of range of motion in the lumbar spine, stiffness of movement and significant deconditioning”. He was not having much treatment and no physical therapy, and she felt he had no work capacity, and that this would not change unless he improved his spinal mobility, functional tolerances and general level of conditioning. Noting his limited work history, education and limited literacy, Dr Horsley wrote that he would require an upgrading of skills, a multi-disciplinary pain management program and thought, though he was only forty-one, his prognosis for return to work was guarded at best.
[53]Cf Mr D’Urso’s view of these films
54 On 12 January 2015, the plaintiff was examined for medico-legal purposes by Mr Russell Miller, orthopaedic surgeon. On examination, he found flattening of the lumbar lordosis, moderate lower lumbar muscle spasm and limited ranges of movement, and that straight leg raising caused low back pain on both sides at 50 degrees, though there was no neurological deficit. Mr Miller himself reviewed the radiology and set out[54] what he thought was to be seen on it. His diagnosis was of muscular-ligamentous strain and aggravation of degenerative disease at three levels of the lumbar spine, with possible nerve root impingement at the lowest level, and his prognosis for the lumbar spine was fair/poor. As to the relationship to work, he believed the evolution of the lumbar spine problem reflected a predisposition and the effects of his heavy physical work over a protracted period of time and specific work injuries at Austral and at ARB all contributed to his then clinical status. He thought a return to work would be highly problematic and then, in answer to questions from the solicitors, apportioned (with considerable reservation) the contributions to the evolution of “the back disease” as 30 per cent to pre-existing, 50 per cent to Austral and 20 per cent to ARB. He felt the plaintiff’s back problems were satisfactorily explained by the organic disease, were likely to remain at their current level, and there was risk of progression in the medium term.
[54]At PCB 143 and 144
55 Associate Professor Graham Brazenor, neurosurgeon, was asked to provide a preliminary report before seeing the plaintiff. It appears to have been written on 12 February 2015. He appears to have had a number of documents provided to him, including Dr Wilson’s reports, making the observation that the questions asked of Dr Wilson lay outside his training and expertise. He went on to review a great many of the clinical notes that are in evidence before me and, amongst the comments he makes about them, is his tentative conclusion, from the entry at 10.33am at the Mooroolbark Super Clinic, that the incident with the canopy occurred later that same day. At the end of the forensic examination of the materials provided, Associate Professor Brazenor expressed some preliminary conclusions which included:
“I have found no significant evidence thus far of a back injury with lasting consequences on 17 December 2012.”[55]
[55]D2CB 41
56 When he did examine the plaintiff on 27 February 2015, Associate Professor Brazenor took a more detailed history of what had taken place on 17 December 2012. In this consultation, he appears to have cross-examined the plaintiff about an aspect of the history he gave, that he had never recovered from the 17 December 2012 injury.[56] The plaintiff reported a recent exacerbation, making him worse than he usually was.
[56]Setting out that he “challenged the latter allegation by bringing up … .” D2CB 43
57 On examination, Associate Professor Brazenor found signs consistent with left-sided radiculopathy, limited movement and some muscle spasm. His examination of the MRI scans, in his view, showed that the only normal disc the plaintiff had was L2-3 and, most significantly, a prolapse at L5-S1 displacing the left S1 nerve root was “almost certainly responsible for the diminished left tendo-Achilles reflex to this day”.[57] He thought the MRI of December 2012 showed no sign of recent injury, with some healing of the earlier protrusions, and felt further improvement was shown by the MRI of 14 May 2014.
[57]the date it was emailed, although the letter itself[57] bears the date 27 February D2CB 45
58 As to work contribution, he thought the evidence overwhelming that work with the first defendant caused the degenerative change seen on the December 2011 MRI, and that there was no evidence whatsoever of any lasting structural or symptomatic consequences of the December 2012 event, although he did allow:
“I guess it is remotely possible that the 5-1 disc had also healed to the same extent but had been re-prolapsed by the canopy lifting injury. I think we will never know the answer to that.”[58]
[58]D2CB 46
59 He remained inclined to the view that no significant injury resulted from the canopy lifting exercise, because he had concluded that the plaintiff was not in any significant pain a month later, because of a note made by Dr Verhoef.[59]
[59]This is not a history that the plaintiff gave to anyone, I take it to be a reference to PCB 73 where Dr Verhoef says he advised the plaintiff to look for suitable work. However, reference to the note of that consultation at D1CB 100 shows that at the end of a long discussion about his back injury and its legal and financial consequences, appears “Also to look on his own for suitable work”. It says nothing of his back pain at that time, and soon after Dr Verhoef wrote WorkCover certificates, and, in the months that followed, saw him regularly for further complaints of back and leg pain– D1CB 100-101
60 Associate Professor Brazenor thought improvement was still possible, and that after the plaintiff did improve, he could do truck driving, be a parking officer, could sell real estate and be a security guard (in a control room); again, not in any order.
61 The plaintiff was examined by Mr Clive Jones, orthopaedic surgeon, on behalf of CGU Workers Compensation on 31 March 2015, apparently in relation to a claim he had lodged, long after leaving the employment of Veyance Belting Pty Ltd. Perhaps this explains the limited history Mr Jones recorded, which leaves out altogether any reference to subsequent employment with ARB. Mr Jones thought the MRI changes were minor, with no evidence of disc prolapse. Mr Jones did not think the plaintiff’s condition was in any way related to the Veyance Belting employment and felt that his incapacity was minor.
62 On 4 December 2015, consultant radiologist, Dr Anthony Kam, wrote to the plaintiff’s solicitors after reviewing the three MRI scans, concluding that there was no significant radiological change over the three examinations.
63 Each of the parties tendered reports from consultant psychiatrists, though they were only referred to in passing during submissions and it was not suggested that any disentangling of the psychological effects of the injury were required in the case, and for that reason, I do not propose to set them out in any detail here.
64 The claims history reflects the difficulty a worker faces in circumstances where injury in two sequential employments may contribute to a single period of incapacity. It seems that his claim against Austral had been rejected, and that his claim against ARB was initially accepted, though his entitlements were terminated by notice dated 3 July 2013, on the grounds that the ARB injury no longer materially contributed to his incapacity or the need for medical treatment, the result being that the plaintiff has not had retraining, rehabilitation or adequate physical forms of therapy for his condition. It seems clear from the evidence that this position persists to the present time, despite the fact that it is beyond argument, on the evidence here, that he has a work-caused disability requiring treatment.
65 When cross-examined, the plaintiff agreed that he had no memory of the dates and times of various events affecting his lumbar spine going back to the year 2000, and agreed that he had been reliant on documentary material to attribute dates to the events he did recall.
66 When it was put to him that the doctors’ records accurately reflect the occasions on which his back pain had been bad, the inference being that at other times it was not so, the plaintiff said that there were times when he did have severe back pain and did not go to see the doctor because the answer was always the same – in effect – take Panadol and keep working.[60] The cross-examiner suggested that the pain would then go away, and the plaintiff was adamant that it did not, saying that he would just try and work his way through it. He allowed that he had been on Paroxetine for anxiety since about 2008. He resisted the proposition that after the January 2011 event, his back pain had gradually settled (an expression in one of Dr Verhoef’s histories),[61] saying that he was under pressure to bear with it as best he could.
[60]T9
[61]T13
67 The subject was canvassed again[62] and the plaintiff said “No, that’s not true. I always had the back pain. I was always under pressure.”
[62]T14
68 In cross-examination concerning the work he did in the year 2012, he agreed that he had probably started some work before March of that year, that some of the jobs he had were more difficult than others, that the work at Veyance Belting was heavy and that he had had back pain whilst there. He said that most of the jobs he left because of pain, explaining that he had left “the linen place” and Veyance Belting because of back pain. He said of the work at ARB, that it was not as heavy as his “normal” work, but that there was a good deal of physical activity involved, some of it performed at some speed.
69 Taken to the incident of 17 December 2012, he agreed it was the worst pain he had experienced, saying “because it felt like – I heard a pop – and I – my legs just gave way”.[63] He agreed that this was different to any previous experience of his back pain. He agreed initially with the proposition that he had not done physical work since but then said he had returned to do basically the same work as he had been doing, but did not know how long he had done it for.[64]
[63]T27
[64]T29
70 He agreed[65] that since the ARB incident, his back pain was more severe and more constant.
[65]T33
71 Cross-examined by Ms Annesley QC on behalf of the second defendant, it became apparent that the plaintiff’s memory was such that he was prepared to agree with most propositions that were put to him.[66]
[66]See for example the exchange at T56, L4-14
72 In the course of his cross-examination, the plaintiff explained that his superior at Austral accompanied him to doctors’ examinations, that Austral made it difficult for him to make WorkCover claims, that his requests for light duties were mostly ignored and that their treatment of him in this regard made him angry, explaining that someone from the factory would come into the doctor’s examination room “in case the doctor would give you time off”.[67] He agreed that he worked with difficulty with his back pain in his last two years at Austral and that he was concerned that complaining about it would threaten his employment.
[67]T59
73 The plaintiff said that when he took the light duties certificate from Dr Verhoef to his employer in December 2011, the plant manager threw it back at him – this being the plant manager who accompanied him to the Tristar Clinic.
74 He agreed that the work he had found in 2012 had only been secured because he did not tell prospective employers about his back
75 Next, the difficulties he had with other employments in the year 2012 were explored. His work at Interpack, where his work of packing bags into boxes caused him to leave that job because of back pain. His work at Mainfrieght, packing at a table and stacking to a pallet on the floor, caused troubles with his back. Further detail of the event at Veyance Belting revealed that he fell because of pain in his back and legs, and that he did not say anything to the employer at the time because he was scared he would lose the job. He said that throwing the laundry onto belts at Cabrini Linen, working shorter shifts, caused back and right leg pain. He explained that the event, when he fell out of a car and was incontinent of urine, occurred in the garage when he got home.
76 Ultimately, the plaintiff agreed with the proposition that right up until the time he started work at ARB, he had ongoing problems with his lower back, with pain into at least his right leg and sometimes the left.[68]
[68]T71
77 As to the history recorded some two hours after the canopy event, he agreed with some of it but said that “Yes, but I did explain to that doctor, he said, ‘It’s better that you’re – you go and talk to your GP about it, because he knows more about it’”.[69]
[69]T76, L16-18
78 He agreed that when he started at ARB he worked on an injection moulding machine that did not involve bending and repetitive work, and that he had only been transferred to the work with the canopies for a day or two before the injury, saying that “yeah, that’s when my back fully went”.[70]
[70]T73
79 He agreed that since 2013 he had not seen any specialists for treatment. He had not received physiotherapy or hydrotherapy and that he was now taking Panadol and Nurofen, as he had when he was working at Austral.
80 As to whether his symptoms now were the same as they had been when he left Austral, he agreed he had suffered pain that goes into his legs whilst at Austral and numbness and pins and needles, but he would not allow that he had burning sensation in his shins at that time, or that he had lost a considerable amount of strength in his legs and back whilst at Austral.
81 In re-examination, he explained that his claim against ARB had only been accepted for a short period between March and July 2013 and since then he had received no payments and no one had been funding his treatment and, if they had, he would have had more treatment. Of the Endep he is taking, he said it was prescribed by the surgeon.[71]
[71]This is confirmed by Mr D’Urso’s correspondence, he prescribed it for sleeping and as a muscle relaxant
82 As already noted, the plaintiff’s memory of the particular state of his back, from time to time, was not good, but I did not think he was in anyway trying to mislead the Court as to these matters. Although a compliant witness, he was quite firm that the injury with the second defendant was something of a watershed. In evaluating his evidence, I have been careful to examine whether it correlates with the clinical records of the time.
The Plaintiff’s capacity for employment at the date of hearing
83 Not much attention was paid to the plaintiff’s current work capacity during the hearing, in which the primary focus of the evidence and submissions was causation. Reports which do address the plaintiff’s future capacity for employment include the report of Mr Brazenor,[72] where, without any further analysis of what the specific roles require, he advises that the plaintiff (after improvement) could be expected to work driving a heavy truck (where he does not need to handle the freight), be a parking officer, sell real estate or be a security guard (on patrol or in a control room). The four options listed by Dr Brazenor were assessed in the Flexi Personnel report of Ms Diane Forster.[73] In her report, she concludes that the employment options listed by Dr Brazenor are inappropriate to the plaintiff’s circumstances and injury. Earlier, Dr Horsley, after an examination of his back injury caused restrictions, work history, education, literacy and computer skills, had concluded that the plaintiff had no current capacity for work.[74] In Dr Verhoef’s assessment:
“He remains severely compromised for work in which he has experience and training and he has, as yet, not had any assessment for or any retraining in any other area of work. Suitable work would be any work that does not require him to repeatedly lift, bend, push, pull for twist. He has not achieved an adequate educational level necessary to enable him to do any office duties.”[75]
[72]D2CB 47
[73]PCB 150
[74]PCB 117
[75]PCB 77
84 In his later reports, Dr Verhoef notes that the plaintiff’s condition is unchanged. Whilst there are opinions in the tendered documents that a capacity for very restricted forms of light work might exist, I am persuaded by the opinions of the specialist occupational physician, Dr Robyn Horsley, that the plaintiff has no current capacity for work and “requires proactive management to even contemplate returning to the work force”. In this regard, her opinion is consistent with the comments of Mr D’Urso, Mr Miller and Dr Pathak.
85 In making that finding, I have had regard to the fact that the plaintiff has had, since his entitlements under the Accident Compensation Act 1985 (“the Act”) were terminated in mid-2013, no access to retraining or rehabilitation services and much more limited medical treatment that would otherwise be desirable. He is of limited education. His literacy and numeracy are poor. He has never had work other than labouring. He is computer illiterate. I am satisfied that his persistent pain is such that concentration is difficult for him and, of course, the range of jobs in which he might work is limited by his pre-existing social phobias and anxiety. (Noting here that it was not contended that his pre-existing conditions needed to be excluded from the analysis in the way that psychological sequelae of the injury would be required to be under s38(h).)
86 As at the date of hearing, I am satisfied that the plaintiff has no capacity for suitable employment.
Counsels’ submissions
Austral
87 Ms Britbart QC, who, with Ms Kaye, appeared on behalf of the first defendant, submitted that the principles set out in paragraphs [30] to [35] of Filipowicz v Arnold Ribbon Co Australia Ltd[76] had to be applied here. So that, where a later in time injury is an aggravation of an earlier injury, an assessment of the relative consequences of each of the two injuries had to be made in accordance with Petkovski v Galletti[77] at two points of time: after the first injury, and after the second. She submitted that the only reliable way of delineating and assessing the consequences of the Austral injury was to examine its pain and suffering and economic consequences in the period between the end of the Austral employment, and the ARB injury, as after that time the consequences of the second injury were also in play.[78]
[76]Supra
[77]Supra, also Skorsis (supra), Grech (supra) and Filipowicz (supra)
[78]The submissions and discussions as to the effect and application of the authorities is found at T14-16, T97-99 and T101-105
88 Ms Britbart submitted that the plaintiff was an unreliable historian with a poor memory and submitted that where his evidence was in conflict with the recorded medical records, I should prefer them. She submitted that on the evidence I should find that the plaintiff’s back, between the incident in January 2011 and 10 December 2011, was such that he required no prescription medication, his back pain had settled from the January incident, and he had pain whenever the work was too heavy. As to the significance of the incident on 10 December 2011, she pointed out that both Dr Verhoef and the doctor at the Tristar Clinic certified him fit for light work, and that he was performing light work when retrenched by Austral’s factory closure at the end of that working year.
89 As to his condition before the ARB injury during 2012, Ms Britbart submitted that he was not, in that year, suffering from the consequences he identified in his affidavit, he was capable of working full time doing heavy work, and had seen a number of doctors for other problems without mentioning his back pain. She submitted that in that year, I should find that the plaintiff’s back pain had become “largely asymptomatic … with only vague aching pains if he overdid things”.[79] She pointed out that the plaintiff was able to do the injection moulding work at ARB and, on occasion, had earned as much as $1,230 per week.
[79]A reference to Dr Verhoef’s questionnaire and Dr Wilson’s history
90 In contrast, Ms Britbart addressed the situation following the ARB incident, pointing out that the plaintiff had felt something “pop” followed by the worst pain he had ever experienced up until that time, and relied upon the plaintiff’s own estimation “that’s when my back fully went”. She pointed out that he required hospital treatment on the day, and, save for an unsuccessful return to work in January 2013, the plaintiff had not worked since. He had been certified unfit for all work since and the plaintiff’s general practitioner had not signed a return to work plan submitted to him by ARB in mid-2013.
91 Ms Britbart pointed to additional treatment after the ARB injury – including specialist referral, epidural injection, physiotherapy and the use of TENS machines, ice packs and the prescription of narcotic and other strong analgesic medication. Next, she submitted that there was no convincing medical evidence that the plaintiff’s current consequences are causally related to the Austral employment and that the doctors who expressed the view that the Austral work alone was responsible for the plaintiff’s current condition had operated on a wrong history.
92 Lastly, Ms Britbart pointed out that in the full financial year ended 30 June 2011, the plaintiff had earned $104,486[80] and that 60 per cent of this figure was $1,205.61 gross per week, and submitted that the plaintiff was capable of earning in excess of this in 2012 before he suffered injury at Veyance Belting.
[80]This, so far as Austral was concerned, was agreed to be the “without injury” earnings of the plaintiff.
ARB’s submissions
93 Ms Annesley QC, who, with Mr Johnstone, appeared on behalf of ARB, submitted that Petkovski and Filipowicz[81] required an analysis of the extent of the impairment of body function before and after the injury with ARB, and that the additional impairment resulting from the second injury had to be proved to be serious in the required sense. She submitted that for this purpose, the analysis required assessment at the date of hearing of the consequences flowing from each injury. It was submitted that the evidence established that the injury at Austral was serious, and that, in contrast, the consequences of the ARB injury were temporary[82] and that the evidence would not, in any view, allow the plaintiff to discharge the onus of disentangling the consequences of the pre-existing (Austral) injury, from the consequences suffered as a result of the ARB injury. By reference to the evidence, it was submitted that the “before and after” picture of the consequences of his back condition following the ARB injury was much the same as it had been before, and any differences that could be identified fell well short of very considerable, in both the pain and suffering and loss of earning consequences. Further, it was submitted that, in circumstances where the plaintiff had not taken up an offer of employment with ARB,[83] he could not establish the required economic consequences.
[81]supra
[82]Detailed references to the evidence relied upon in support of the ARB submissions were set out in the written submissions and I will not repeat them here.
[83]From 11 January 2013 to 23 April 2013 (at least), Dr Verhoef was certifying him unfit for any work, D1CB 116-120. At the time of the offer, the Nabenet report notes correspondence from Dr Verhoef which stated no more than “he may regain a capacity to perform light assembly tasks possibly three months or less”. D2CB 60. The “return to work plan”, D2CB 68, is not signed by Dr Verhoef. The notes at D1CB 102 and 103 suggest they continued.
The Plaintiff’s submissions
94 Mr McGarvie QC, who, with Ms Lee, appeared on behalf of the plaintiff, submitted that the plaintiff now had no capacity for any work having regard to his age, education, literacy, pre-existing anxiety and work experience, and that none of the suggested jobs were for him suitable employment. He was critical of Mr Brazenor’s reporting on the basis that, rather than providing independent medical opinion, Mr Brazenor had assumed the role of both detective and advocate for the ARB case. He pointed to the evidence that the plaintiff had told his general practitioner that he had not returned to work with ARB because of his understanding that they were just trying to get rid of him,[84] and submitted that this should be viewed in the context of his anxiety. It was submitted that it was open to me to find that he had lost any real work capacity by the time he ceased work at Austral and that, his work activity in the year following, prior to going to ARB, demonstrated more about his stoicism (and perhaps his wife’s persuasive powers) than any realistic work capacity. He submitted that even if the plaintiff did have a work capacity after he left Austral, the application of the test required by the section to the amount he was earning in that year, or was able to earn in suitable employment, would establish the required 60 per cent loss.
[84]PCB 73
95 Mr McGarvie submitted that any earning capacity that the plaintiff retained after the Austral injury, was lost after the canopy event at ARB and, in circumstances where there has been no rehabilitation and retraining, or adequate treatment, I should find that he now had no earning capacity at all. As to the evidence, counsel set out in written submissions references that made the comparison between the plaintiff’s condition before and after the ARB injury.
Legal principles
96 It was common ground amongst the parties that the injury to the plaintiff’s lumbar spine sustained in the employment of ARB had to be assessed in the manner prescribed in the cases of Petkovski, Skorsis and Filipowicz. Counsel submitted, and I accept, that the approach is prescribed in paragraphs 31 to 35 of Kyrou JA’s Judgment in Filipowicz.
97 It was not in doubt that the position in relation to an injury, itself an aggravation of an earlier injury, is clear. There was considerable discussion in the course of Ms Britbart’s submissions as to whether the cases referred to stood for the proposition that in the evaluation of the consequences of the first of two sequential injuries, the additional impairment resulting from the second injury could never be brought into account. In the end, Ms Britbart submitted that a “material contribution” from the first injury in time would not be sufficient, but allowed that if the evidence supported a conclusion that each of two injuries was “a cause” of serious injury consequences at the time of trial, then the authorities referred to permitted the grant of a certificate for each.[85]
[85]T102-3. I am far from certain that Filipowicz stands for the proposition that there could never be a case concerning sequential injuries where a retained capacity for work, persisting after the first injury in time, would prevent it ever being established that the first injury in time was, for the purposes of the section, a cause of later occurring total incapacity, because a later, further, injury was also a cause.
98 In Skorsis,[86] which established that Petkovski[87] had application to cases under the Act, the Court contemplated the possibility that a single serious long-term (the section there under consideration did not require permanent) impairment could be caused by two separate injuries.[88]
[86]Supra
[87]Supra
[88]Buchanan J at paragraph [27]
99 On appeal in Filipowicz,[89] counsel for the plaintiff sought to support the trial judge’s finding that the first injury in time was a cause of all the consequences the plaintiff was suffering at the time of trial on the basis that the first injury had rendered the plaintiff vulnerable to all of the consequences that became apparent after the second.[90] The Court declined to consider this argument because the case had not been conducted that way in the court below.
[89]Supra
[90]Mandie JA at paragraph [2]
100 In Kyrou JA’s Judgment,[91] the same argument was rejected for the additional reason that the evidence did not support it. Kyrou JA distinguished Altona Bus Lines v Lococo,[92] where -
“The trial judge’s ultimate finding was that the 1995 incident (the first of two) had made a ‘significant contribution’ to the impairment suffered by the respondent”[93]
was upheld by the Court of Appeal.
[91][39]-[43]
[92][2002] VSCA 159 at paragraphs [8]-[12]
[93]At paragraph [8]
Findings - the case against Austral
101 Accepting, for present purposes, Ms Britbart’s submission that I should assess the financial consequences of the Austral injury by reference (only) to the capacity the plaintiff had in 2012,[94] and before the ARB injury, I am satisfied on the evidence that the plaintiff has suffered a serious injury within the meaning of the section.
[94]On the basis that this was the only period in which I could reliably examine the financial consequences of the Austral injury, as after this time the ARB injury caused further incapacity
102 I am satisfied, and the weight of the medical opinion in the case is to this effect, that the lumbar disc degeneration of the lower three levels of his lumbar spine seen on the MRI in December 2011 was a compensable injury – in the sense that it was caused by the plaintiff’s employment with Austral and/or was the result of the aggravation, acceleration, exacerbation or deterioration of degenerative disc disease of the lumbar spine to which his employment with Austral was a significant contributing factor.[95]
[95]Having regard to the factors referred to in s5(1B) of the Act
103 I am satisfied by the contemporaneous records, reports and evidence to which I have referred, that after that time, the plaintiff suffered from persisting low back pain. I am satisfied that his symptoms of lumbar disc disease, whilst not requiring regular attendances on medical practitioners during the year 2012, were such that he took with some regularity analgesic and anti-inflammatory medication. I am also satisfied that his symptoms were made worse (at least for a time) by the heavy work he performed in that year, particularly that at Veyance Belting and Cabrini Linen.
104 The plaintiff’s account of the difficulties he had whilst performing work in that year was scarcely in dispute, and I accept his evidence about it. In my view, much of the work he performed in that year was not “suitable employment” for him and showed that, at best, he had only a capacity for lighter forms of work than those he actually engaged in. I do not accept Ms Britbart’s submission - because, on three occasions out of sixteen pay periods,[96] he made more than 60 per cent of his “without injury” earnings, that in relation to the Austral injury he could not establish the requisite 40 per cent loss. Rather, in my view, the evidence establishes that he did not have the capacity to work in the way he actually did at Veyance Belting or, for that matter, at Cabrini Linen, and that the work he did at those two places demonstrated the limitations that his back injury imposed upon his earning capacity.
[96]D1CB 77
105 In spite of his symptoms, and because of his need to keep working, the plaintiff worked with Veyance Belting and earned, over the pay period for the sixteen weeks he worked there, an average of $1,135.20 per week.[97] In my view, at Veyance Belting, the plaintiff was working beyond what anyone involved in his treatment up to that time, or since, would have regarded as suitable employment and, even then, he was unable to earn 60 per cent on an annualised basis of the figure agreed to be his “without injury” earnings $104,486. I am satisfied also, on the evidence, that even with retraining and rehabilitation (none of which has been provided because of the continuing dispute about which employer should be liable for his claim), he would not be able to earn more than $62,691 on an annual basis, and that the situation is permanent. Given the sums involved, I am satisfied that the loss of earnings is at least very considerable.
[97]In my view, a better guide to his after injury capacity is the work on the press, before he was transferred to the canopy work, at ARB, where he earned $667 per week, about $34,700 on an annual basis.
106 I am also satisfied, assuming for the moment the correctness of this approach, that the compensable injury suffered in employment with Austral was “a cause” of the plaintiff’s total incapacity at the date of hearing and that his total incapacity is permanent. Approached in that way, on the evidence, the plaintiff easily satisfies the statutory test in relation to the economic consequences of the Austral injury, and I would also grant him leave on that basis.
107 In the circumstances, the plaintiff is granted leave to bring a proceeding for the recovery of damages for both pain and suffering and loss of earning consequences of the serious injury sustained throughout the course of his employment with Austral.
Findings – the case against ARB
108 Taking the Petkovski v Galletti[98] approach, I am satisfied that in the year 2012, the plaintiff’s work and its effect upon him established that he had no more than a capacity for light bench work with restrictions and, had such work been provided to him, he may have been able to persist in it, as he did at ARB until his duties changed to include the lifting of canopies..
[98]Supra
109 On the evidence, I am satisfied that as a result of the lifting of the canopy on 17 December 2012, during which exercise I find that the plaintiff felt a “pop” in his low back followed by severe pain,[99] the plaintiff sustained an aggravation and exacerbation of his already established lumbar disc disease, to which his employment was a significant contributing factor.
[99]Although, by reference to the absence of a “pop” in other records made on that day, this account was challenged, given the long history of his dealings with Dr Verhoef and the care with which Dr Verhoef recorded the circumstances leading to other presentations for acute back pain, I am satisfied that he did experience a “pop” at that time.
110 There are conflicting opinions in the medical reporting as to what is to be seen on the series of MRI scans. Some say the fissures seen in scan number 2 were new, others say there was not much difference between any of them. Some offer the opinion that a degree of healing can be seen. What is clear, in my view, is that the plaintiff himself, although vague as to many things, was clear in his mind that his back has been permanently worse since that event.[100] This account is supported by the increase in treatment since, involving neurosurgeons, epidural injections and narcotic analgesia for significant periods and by certification of his total incapacity after that time. I am satisfied that the worsening of his back pain that he experienced as a result of the lifting of the canopy has persisted to the present time.
[100]His account that the canopy event was more significant, is, in my view, supported by the fact that although earlier in that year he had experienced pain severe enough to take him to ground, he soon after recovered sufficiently to return to regular work. In my view, this is significant in two respects. First, it shows that he is stoic and if he was at all able, he would have gone back to work. Second, it supports his account that the increase in pain was not recovered from.
111 Accepting his account, as I do, I reject the opinions expressed by some commentators in the case that the canopy event represented only a temporary aggravation or exacerbation.[101] In this regard, I prefer the opinion of the treating neurosurgeon, Mr D’Urso, and Dr Pathak and Mr Miller. I find that the canopy incident caused a worsening[102] of his lumbar symptoms such that since that time he has had no work capacity at all,[103] and that whatever capacity for work the plaintiff retained and managed to exercise in the year after the Austral injury, it was lost altogether following the ARB injury.
[101]As already noticed, none of them were able to identify when it was that the effect of the canopy lifting event ceased to operate.
[102]“Worsening” being shorthand for “recurrence aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease” found in the extended definition of injury, or here, as Mr D’Urso described it, the “development and progression” of his condition, or the “evolution of his back disease” Mr Miller.
[103]See paragraphs [83]-[85] of these Reasons
112 When the required comparison between his limited work capacity between the two injuries and his total incapacity after the ARB injury and at the time of hearing is made, the plaintiff satisfies the tests laid out in the section, in that his further loss of earning capacity, as a consequence of the ARB injury, produces a loss of more than 40 per cent and is also a cause of his present total incapacity. The loss is permanent, in the sense that it is likely to persist for the foreseeable future, and, in my view, is properly to be regarded as at least very considerable.[104]
[104]Although there was some evidence of his earnings in the 2012 year, which, as I have already mentioned, in my view overstate to a degree his “without injury” earnings in respect of the ARB injury, a precise figure was not identified. Nevertheless, he did earn $667.66 per week in his employment at ARB, some of which (the press duties) was suitable employment at the time – PCB 19 – and for him the loss of that remaining capacity is at least very considerable: Guppy v Victorian WorkCover Authority [2010] VSCA 164
113 In respect of the ARB injury, I am satisfied that at the date of hearing, the plaintiff has a loss of earning capacity of 40 per cent or more[105] and that the plaintiff will, after this date, continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more (s134AB(38)(e)). I am also satisfied that the plaintiff does not have a capacity for any employment which, if exercised, would result in the plaintiff earning more than 60 per cent of his “without injury” earnings from personal exertion had the injury not occurred.
114 Accordingly, the plaintiff is granted leave to bring a proceeding for the recovery of damages for the pain and suffering and loss of earning consequences of the injury at ARB in December 2012.
115 Whilst those findings are sufficient to dispose of the plaintiff’s applications, I should say that were it necessary to do so, I would, on the evidence, have been satisfied that the permanent total incapacity of the plaintiff results from (in the sense that each is a cause, so more than just “materially” contributing to) each of the two injuries identified in this proceeding.
116 On the evidence, especially having regard to the ease with which work in 2012 produced acute exacerbations of his spinal condition, I am satisfied that the injury with Austral rendered his spine vulnerable to exacerbations producing total incapacity, and so was a cause of the total incapacity that followed the lifting of the canopy, as was the lifting of the canopy itself.
117 I will hear from the parties as to the form of orders and costs.
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