Glockner v Victorian WorkCover Authority

[2021] VCC 659

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE VIA ZOOM

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-20-03638

ROLF JURGEN GLOCKNER	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HIS HONOUR JUDGE PURCELL
WHERE HELD:	Melbourne via Zoom
DATE OF HEARING:	18 May 2021
DATE OF JUDGMENT:	26 May 2021
CASE MAY BE CITED AS:	Glockner v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2021] VCC 659

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION

Catchwords:              Serious injury – injury to the lumbar spine – subsequent injury to same body function – leave sought for pain and suffering

Legislation Cited:      Accident Compensation Act 1985, s134AB

Cases Cited:AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; RJ Gilbertsons Pty Ltd v Skorsis [2000] VSCA 51; Valente v OneSteel Ltd & Anor [2013] VCC 453

Judgment:                  Application dismissed

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr O Lesage	Alessi Legal
For the Defendant	Dr J C Plunkett	Hall and Wilcox

HIS HONOUR:

Introduction and background

1The plaintiff, Mr Rolf Glockner, is now fifty-nine years of age.  In January 2003, he commenced employment as a bus driver with Imbiss Pty Ltd (“Imbiss”) from a bus depot in Seaford.

2In the course of his duties as a bus driver, the plaintiff claims to have suffered a “serious injury” to his spine.

3There is no doubt that the plaintiff has suffered a “serious injury” to his spine.  I will turn to an analysis of the relevant medical material in due course, but for present purposes I note that on 18 April 2016, he underwent a C5‑6 and C6‑7 anterior cervical discectomy and fusion at the hand of Mr Paul D’Urso, neurosurgeon[1].  Then on 12 September 2018, Mr D’Urso performed surgery on the plaintiff’s lumbar spine, described as a right L3‑4 foraminotomy, discectomy, and rhizolysis.

[1]        Plaintiff’s Court Book (“PCB”) 72

4The plaintiff has ongoing symptoms in his spine.  He is unable to work.  The defendant, represented by Dr Plunkett of counsel, accepts that the plaintiff has consequences both in respect to pain and suffering and economic loss that are “very considerable”.[2]

[2]        Transcript (“T”) 4, Lines (“L”) 8-14

5At this point, anyone reading this judgment might be puzzled as to what the issue is.  The issue that arises is that the plaintiff’s employment with Imbiss ceased in late 2011 and thereafter he was employed to perform the same duties, from the same depot, and drive the same buses, but with Peninsula Bus Lines (“Peninsula”).

6In the course of his employment with Peninsula, the plaintiff had incidents in approximately February 2012 and November 2013, when he had to suddenly and forcibly use the brake pedal to brake the bus, causing him to suffer further injury and symptoms in his spine.  The Victorian WorkCover Authority is named as defendant in this application, which relates to the employment with Imbiss.  The Victorian WorkCover Authority, on behalf of Peninsula, on 14 May 2018, conceded that the plaintiff has a “serious injury” and consented to the commencement of a common law proceeding for pain and suffering and economic loss damages against Peninsula.  However, in the present application, whilst begrudgingly accepting that the plaintiff suffered injury to the spine with Imbiss, the defendant does not accept that such injury is “serious”.  The defendant says that on the evidence, the plaintiff has failed to establish sufficient ongoing impairment and impairment consequences from the Imbiss employment so as to meet the test of serious injury.[3]

[3]        T43, L27-31

Applicable legal principles

7In order to succeed in this application, the plaintiff must establish injury, impairment and the extent of impairment consequences in relation to the Imbiss period of employment.  That period of employment ceased in late 2011.  The impairment consequences, in this proceeding confined to pain and suffering, must be at least “very considerable”.

8The injury with Imbiss cannot be accumulated with the injury with Peninsula to establish a “very considerable” consequence.[4]

[4]        AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309 (“Filipowicz”)

9The task for the plaintiff is whether, viewed on its own, the Imbiss employment has caused impairment consequences that are “serious”.

10It is possible for the plaintiff to have suffered a serious injury in consecutive employments that affects the same body part.  An injury may, by its impairment consequences, be a serious injury “notwithstanding that an earlier injury was also a cause of the same impairment or loss”.[5]

[5]        RJ Gilbertsons Pty Ltd v Skorsis [2000] VSCA 51 per Buchanan JA at paragraph 27

11For completeness, I note that Mr Lesage, counsel for the plaintiff, referred to the decision of Judge Bowman of this Court in Valente v OneSteel Ltd & Anor[6] as an illustration of the applicable legal principles.  However, as discussed with counsel, I do not consider Judge Bowman’s decision to be anything other than the application of applicable legal principles to the facts of the case that was then before him.  I do not accept that it stands for the proposition that the plaintiff may somehow rely on the totality of his employment as a bus driver – that is, both with Imbiss and with Peninsula – for the purposes of demonstrating “serious injury” and such a submission is contrary to what was said in Filipowicz.[7]

[6] [2013] VCC 453

[7]        Filipowicz (op cit)

Analysis

12The plaintiff swore two affidavits in support of his application and tendered medical and related material.  The defendant tendered various claim forms and medical reports.  I take into account the tendered material and the transcript of the oral evidence (limited as it was) but will only refer to the evidence to the extent necessary.

13Indeed, it is not necessary to refer to the evidence in any great detail.

14The evidence reveals that from August 2004, the plaintiff attended a general practitioner with low back pain.  Thereafter, the plaintiff’s affidavit evidence and the tendered medical evidence reveals intermittent attendances on general practitioners with either neck or low back pain.  In June 2008, he was referred for physiotherapy with Ms Morgan Deegan[8].  In particular, there were attendances for neck and low back pain throughout 2009.  In mid-2009, the plaintiff was referred for a CT scan[9].  The CT (apparently) reported disc bulging from L3 to S1.  The plaintiff was intermittently prescribed Voltaren.  There was then an attendance for low back pain in December 2010 after driving a bus with a bad seat and a prescription for Panadeine Forte.  His employment then ceased with Imbiss in late 2011.

[8]        PCB 20

[9]        Exhibit P2, complete record of Young Street Medical and Dental Centre, Frankston, at p21

15Pausing here, by the time the plaintiff’s employment was transferred to Peninsula, he had seemingly radiologically demonstrated changes in his lumbar spine.  He had seen his general practitioner intermittently over an approximate six-year period with symptoms in the low back or neck.  He had some physiotherapy and required some use of painkillers.  But, on the other hand, there is no suggestion he had ongoing symptoms or was battling on at work in face of intractable pain.  There is no suggestion when he commenced with Peninsula that he had a compromised spine that prevented him from driving a bus, or that he required the regular use of painkillers.  There is certainly no suggestion as at late 2011 that he required surgery on his spine.

16There are then clearly documented “incidents” in 2012 and 2013.  The objective evidence in clinical records shows a dramatic escalation in the reporting of symptoms in his neck and low back following those incidents, culminating in a referral to Mr D’Urso and the need for surgery.

17It is trite to note that the plaintiff bears the evidentiary onus to establish “serious injury”.  The defendant, during the oral evidence and in submission, referred to numerous medico-legal reports in which the plaintiff reported symptoms in his spine with a focus on events in 2012 or 2013.[10]  That submission was not put to challenge the credit of the plaintiff, but rather to highlight the fact that he himself has relevantly considered that his problems came on sometime after 2012 or 2013[11], which also fits with the objective evidence of the cessation of employment and an inability to return to employment since 2013.

[10]        T20, L27-31

[11]        Defendant’s Court Book (“DCB”) 45

18The plaintiff’s medical evidence in support of this application really boils down to opinions provided by Mr John O’Brien, orthopaedic surgeon, and Professor Richard Bittar, neurosurgeon.

19Dealing first with Mr O’Brien, he examined the plaintiff on 28 January 2020 and provided a report dated 4 February 2020[12].  Mr O’Brien took a history of the plaintiff being aware of intermittent pain in the low and upper back in 2007 and 2008.  He then had a history of what he describes as the first incident in 2012 and the second incident in November 2013.  Having conducted a clinical examination, reviewed relevant radiology and taken the history into account, Mr O’Brien said that ―

“Given this patient’s history it would indeed appear that employment is a significant contributing factor to the patient’s clinical condition where there is chronic cervical and low back symptoms.”[13]

[12]        PCB 82

[13]        PCB 87

20Then, in a further report following a re-examination of the plaintiff on 19 April 2021[14], Mr O’Brien, to some extent, dealt with the issue in this proceeding.  Mr O’Brien said ―

“Historically this patient reports the initial onset of, in particular, low back pain in the course of his employment, commencing in approximately 2008 and continuing. This would suggest that employment at that time was a source of aggravation of pre-existing lumbar spondylosis, precipitating at the time chronic back pain.  Treatment would appear at the time to have been minimal, and in fact the patient reports that he was capable of continuing his normal employment.

Clinically the situation would appear to have substantially changed following a change of employer in September 2011.”

[14]        PCB 90

21Mr O’Brien’s report supports the conclusion that the period of employment with Imbiss caused the aggravation of pre-existing lumbar spondylosis.  However, in the words of Mr O’Brien, clinically the situation appears to have changed substantially following the change of employer in late 2011.  In other words, Mr O’Brien supports a conclusion that in the course of employment with Peninsula, the plaintiff suffered a serious injury.  He does not support a conclusion of “serious injury” being suffered with Imbiss.

22Next, Professor Richard Bittar provided a report dated 27 November 2020[15].  He also obtained a comprehensive history of the plaintiff’s symptoms with Imbiss and with Peninsula.  Similar to Mr O’Brien, he also diagnosed aggravation of lumbar spondylosis.  In addition, he diagnosed aggravation of cervical spondylosis.

[15]PCB 96

23Professor Bittar was asked a specific question regarding the injury suffered to the plaintiff in the course of his employment with Imbiss.  He answered that question as aggravation of cervical and lumbar spondylosis.  He was then asked, and answered, a number of questions about symptoms and the like.  On a plain reading of his report, his answer to those questions[16] can only be in respect to the totality of the plaintiff’s condition and are not confined to the employment with Imbiss, notwithstanding the format of the report.

[16]PCB 101-102

24Professor Bittar was then asked a similar question regarding injury suffered whilst working with Peninsula.  He answered that question as aggravation of pre-existing cervical and lumbar spondylosis, together with L3/4 intervertebral disc prolapse and symptomatic cervical foraminal stenosis.  He was then otherwise asked similar questions regarding incapacity and the like, and confirming my view that his opinions relate to the totality of the plaintiff’s employment both with Imbiss and with Peninsula, he answered those questions the same as his earlier answers[17].

[17]PCB 104

25Therefore, Professor Bittar’s opinion is similar to Mr O’Brien when it comes to the diagnosis of compensable injury with Imbiss, but similarly his report is not helpful when it comes to the issue of impairment and impairment consequences referable to Imbiss.

26In final submissions, Mr Lesage submitted that the period of employment with Imbiss caused an identified compensable injury, productive of intermittent symptoms, the requirement for some physiotherapy and the intermittent use of painkillers. It was submitted that this was sufficient for a finding of a “very considerable” consequence, notwithstanding that further injury was suffered with Peninsula.  I do not accept that submission.  Without needing to consider the question of disentangling the plaintiff’s situation as at late 2011 from the further injury suffered with Peninsula, I am not satisfied that those consequences are “very considerable”, although they could be described as marked or even significant.

27The plaintiff also submits that because he suffered consequences from injury at Imbiss, those consequences continue to play a role in the totality of his condition and, accordingly, can be taken into account.  He does not, however, go so far as to say that but for suffering injury at Imbiss, he would not have suffered injury with Peninsula, and neither does the medical evidence.

28The injury suffered with Imbiss may continue to be a cause of consequences to him, but the evidence does not enable an assessment of what those ongoing consequences are.  The reality of the situation is that the subsequent events in 2012 and 2013 have overwhelmed the earlier problems, requiring major surgery and significant restrictions for day-to-day activity.  Equally, there is no evidence that the impairment and impairment consequences said by the plaintiff to have arisen by late 2011 have become worse so as to reach the level of “very considerable”.  In other words, there is no evidence that any underlying injury suffered with Imbiss has progressed to a point that is now “very considerable”, even if the evidence enabled the subsequent injuries at Peninsula to be ignored for the purpose of such analysis.

29It is easy to have sympathy for the plaintiff.  He is obviously a decent and hardworking man who has driven a bus for many years and, as a consequence, has suffered injury to his spine requiring major surgery.  However, the legal test is not based on sympathy and, based on the evidence and the application of relevant legal principles, the plaintiff has failed to establish a “very considerable” pain and suffering consequence referable to the employment with Imbiss.

30Accordingly, the application is dismissed.

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