Glogoski v Workers Compensation Nominal Insurer

[2019] NSWDC 154

District Court

New South Wales

Medium Neutral Citation:	Glogoski v Workers Compensation Nominal Insurer [2019] NSWDC 154
Hearing dates:	18 April 2019
Date of orders:	03 May 2019
Decision date:	03 May 2019
Jurisdiction:	Civil
Before:	Russell SC DCJ
Decision:	(1)   Plaintiff’s Summons dismissed (2)   Order the plaintiff to pay the defendant’s costs
Catchwords:	WORKERS COMPENSATION – freight handler suffered injury to lower back at work – worker made election to claim permanent loss compensation – further deterioration occurred WORKERS COMPENSATION – leave of the court sought to revoke election regarding permanent loss compensation – s 151A(4) Workers Compensation Act 1987 – onus on the applicant to show whether “at the time of the election, there was no reasonable cause to believe that further deterioration would occur” – s 151A(5)(c) Workers Compensation Act 1987 - court must consider the evidence concerning the applicant’s condition at that time and expert opinion as to the medical prognosis for that condition at that time
Legislation Cited:	Workers Compensation Act 1987 (NSW) Workers Compensation Legislation Further Amendment Act 2001 (NSW)
Cases Cited:	Cipriano v Sew Eurodrive Pty Limited [2016] NSWSC 1630 Corcoran v Tyre Marketers Australia [2001] NSWCA 300 Daniel v Holroyd City Council [2016] NSWDC 239 State of New South Wales v Taylor [2001] HCA 15; (2001) 204 CLR 461
Category:	Procedural and other rulings
Parties:	Ivan John Glogoski (Plaintiff) The Workers Compensation Nominal Insurer (Defendant)
Representation:	Counsel: P Mooney SC (Plaintiff) C J Tanner (Defendant)   Solicitors: Masselos & Co (Plaintiff) Bartier Perry (Defendant)
File Number(s):	2019/45579

Judgment

Introduction

1. The plaintiff commenced working for Ansett Australia in 1997. He was a freight handler. This was hard physical work. On 28 February 2000 the plaintiff suffered a significant lower back injury at work. His condition worsened and eventually he was seen by Dr Loefler, who performed an operation on the lower back on 8 September 2000.

2. The plaintiff returned to work at Ansett in December 2000. On 21 August 2001 the plaintiff elected to receive lump sum compensation from his employer. That employer is now deregistered, so the plaintiff sues the defendant in its stead.

3. In October 2001 the plaintiff assisted in lifting a 65kg weight at work. As a result, he developed severe lower back pain. He never returned to work after this event.

4. By a Summons filed in this court on 8 February 2019 the plaintiff sought leave to revoke the election made on 21 August 2001.

Power to Revoke

5. At the time the plaintiff elected to receive permanent loss compensation under the Workers Compensation Act 1987 (NSW) (the Act), an election was irrevocable, except that an election to claim permanent loss compensation could be revoked with the leave of the court – s 151A(4) of the Act.

6. The power of the court to grant leave was contained in s 151A(5) as follows:

“If,

(a)   a person elects to claim permanent loss compensation in respect of an injury; and

(b)   after the election is made, the injury causes a further material deterioration in the person’s medical condition that, had it existed at the time of the election, would have entitled the person to additional permanent loss compensation; and

(c)   at the time of the election, there was no reasonable cause to believe that the further deterioration would occur,

the person may, with the leave of the court and on such terms (if any) as the court thinks fit, revoke the election and commence proceedings in the court for the recovery of damages in respect of the injury.”

7. The Act was substantially amended in December 2001. Schedule 4 of the Workers Compensation Legislation Further Amendment Act 2001 (NSW) provided that where a person had elected to claim permanent loss compensation under s 151A before the commencement of the 2001 amendments, then s 151A in the form quoted above governed the plaintiff’s rights with respect to election and revocation. This was not a matter in dispute on the present hearing.

8. Nor was it in dispute in the present case that the plaintiff had established the facts required by s 151A(5)(a) and (b). The sole issue for determination was whether “at the time of the election, there was no reasonable cause to believe that the further deterioration would occur” – s 151A(5)(c).

9. The leading authority in relation to the meaning of that provision is the decision of the High Court in State of New South Wales v Taylor [2001] HCA 15; (2001) 204 CLR 461.

10. The majority judgment in paragraph [4] summarised the test to be applied as follows:

“Section 151A(5)(c) requires the court to determine whether it would be unreasonable for a person to believe that the evidence before the court, concerning the applicant's condition at the time of election, demonstrated that the further deterioration would occur. The reasonable cause for belief is determined by reference to the evidence before the court concerning the applicant's condition at that time and expert opinion as to what the medical prognosis for that condition was at that time. What the applicant knew or ought to have known is irrelevant. If the court determines that it would not be unreasonable for a person to believe that the further deterioration would occur, the application for revocation fails.”

11. Further, the court said at [11]:

“It follows that the belief of the injured person, reasonable or otherwise, is not the criterion on which leave to revoke depends. For the same reasons, the belief of a reasonable person in the position of the injured person is irrelevant.”

12. Paragraphs [13] and [14] of the judgment contain the full explanation of the test to be applied under s 151A(5)(c). Those paragraphs are as follows:

“13.   Hence it is the court's view of all the evidence and not the injured person's belief, reasonable or otherwise, that is decisive. On this view, the test for the court is: given the medical condition of the applicant at the time of the election and the expert opinions as to its prognosis at that time, would it be unreasonable for a person to believe that the condition would further deteriorate as it had? The applicant for leave must prove a negative. He or she must show that it would be unreasonable for a person to hold that belief. The applicant will prima facie discharge that onus by tendering evidence indicating that such a belief could not be reasonably held. If a prima facie case is established, the employer has the evidentiary burden of showing that there exists another body of evidence that indicates a contrary conclusion. Ultimately, it is for the court to determine whether "there was no reasonable cause to believe that the further deterioration would occur" in accordance with the test that we have formulated.

14.   In determining the issue of "no reasonable cause to believe", the court does not determine whether, as a matter of probability, there was cause to believe that the further deterioration would occur. To approach the section in that way is to invert the negative proposition that it contains. On the evidence, two opposite beliefs may have been reasonably open as to whether the further deterioration would occur. If there was, the application for revocation fails. If on the whole of the evidence, whatever its source or sources, the court concludes that it would not be unreasonable to believe that the further deterioration would occur, the applicant fails. It is irrelevant that, on the same body of evidence, it would also be reasonable to believe that the further deterioration would not occur. In a case where the evidence admits of two reasonable, but opposing, conclusions, the applicant has failed to show that there was no reasonable cause to believe that the further deterioration would occur.”

13. In accordance with paragraph [13] reproduced above, it is necessary to have regard to:

1. the medical condition of the applicant at the time of the election; and

2. expert opinion as to prognosis at that time.

The medical condition of the plaintiff at the time of the election

14. As previously recited, the plaintiff suffered his injury at work in February 2000 but did not seek specialist advice until September 2000, by which time his condition had become much worse. The plaintiff made a claim for workers compensation and was sent by the insurer to Dr Limbers, an orthopaedic surgeon. Dr Limbers examined the plaintiff on 5 September 2000 and reported to the insurer that same day. The plaintiff presented with symptoms of back ache in the lower lumbar region which was excruciating and aggravated by any activity. He could hardly walk. He was unable to bend and was unable to do any lifting. Excruciating left leg pain radiated down the back of the thigh, leg and into the foot.

15. Dr Limbers reported to the insurer that the plaintiff was unfit for any employment at the time of the examination. He also reported that the prognosis was “probably good with surgery since the indications are there”. He advised the insurer that the necessary treatment was “operative treatment, mandatory and as quickly as possible”.

16. The plaintiff saw Dr Loefler on 7 September 2000. In a report of that date to Dr Pattinson, Dr Loefler said that the plaintiff required a discectomy.

17. On 8 September 2000 Dr Loefler performed a left L5/S1 discectomy and nerve root decompression at the Hurstville Community Hospital. An operation report was provided to Dr Pattinson dated 8 September 2000, with a copy to the workers compensation insurer.

18. The plaintiff saw a physiotherapist Mr Beaven in October and November 2000. Mr Beaven reported on 2 November 2000 to the GP that the plaintiff was “markedly better since first presenting at this clinic last Friday, after his recent exacerbation while at work”. There was restriction of lumbar flexion and extension and of straight leg-raising. Mr Beaven said in the report:

“He would not appear to be ready to resume work if it were to involve any lifting”.

19. The plaintiff returned to work with Ansett on 13 December 2000.

20. Dr Loefler provided a report dated 21 December 2000 to the plaintiff’s general practitioner, with a copy to the workers compensation insurer. He said:

“I reviewed Mr Glogovski today. The patient is very happy with the outcome of the surgery. He no longer has leg pain. He has minor back problems. I understand that his employer has accommodated these. Mr Glogoski is working full-time in a slightly modified position.

I have given some general advice regarding back and exercises. I have advised the patient to continue to stay fit and to avoid heavy lifting and repetitive bending. I have not made a further appointment for him, but will, of course be happy to review him in the future should this be necessary.” (emphasis added)

21. The plaintiff’s solicitors obtained a report from Dr Selby Brown, an orthopaedic surgeon, dated 16 March 2001. He examined the plaintiff on 7 March 2001. The plaintiff complained to Dr Selby Brown of a continual aching pain throughout the lumbar spine and down the back of both legs and extending into the soles of both feet. This was more noticeable in the left leg than in the right. The pain caused him difficulty with sleeping. He was able to walk satisfactorily but his ability to lift, handle, sit and stand was restricted. The range of motion in the back was also restricted.

22. Dr Selby Brown recorded as follows:

“Mr Glogoski states that his operative treatment has helped to alleviate his symptoms to some extent. He did require to remain off work from 8.8.00 until 13.12.00 when he returned to selected duties on very light activities until the end of January of this year. Subsequently he has resumed normal duties but he states that his leading hand colleagues at work are still assisting and protecting him from any heavier lifting or handling and he is therefore able to manage his present duties reasonably satisfactorily.”

23. Dr Selby Brown offered the view that “Mr Glogoski is permanently restricted in his capacity to perform physical activities requiring heavy or moderately heavy lifting, handling or bending, prolonged or moderately prolonged walking, standing or sitting, any amount of climbing or squatting and for activities likely to cause jerking, jolting or jarring of his back”. Dr Selby Brown made a percentage assessment of permanent loss of use of the back, left leg and right leg. He concluded his report by saying:

“With the passage of time I consider that there is potential for increase in this level of permanent impairment in his back and permanent loss of use in each of his lower limbs.” (emphasis added)

24. Dr Stephenson, an orthopaedic surgeon, saw the plaintiff on 2 May 2001 at the request of the workers compensation insurer. He provided a report to that insurer dated 4 May 2001. Under the heading “Present Complaints”, Dr Stephenson recorded:

“Mr Glogoski said that currently he is taking some annual leave.

He has tried to do his work, but finds that there is pressure at times to do heavier work. He said he has been advised from the rehabilitation officer that he should observe a lifting limit of not more than 10-15kg and that Dr Loefler agreed with that.

Such a lifting limit does appear to be reasonable in view of the history.

He complains of lumbar pain with some symptoms down the back of the left leg. He said the operation did relieve the acute pain down the back of the left leg, but he had a feeling of pressure symptoms there. He takes Valium for sedation and quinine for cramps which he experiences in the left leg. He has lumbar pain and restricted movement.”

25. Dr Stephenson offered the following opinion:

“He is fit for lighter duties, avoiding heavy manual labouring work. It is reasonable that a lifting restriction of 10-15kg be observed. The prognosis generally is guarded and the incapacity for heavy work will continue.” (emphasis added)

26. That is all of the medical material, tendered on this application, which pre-dates the election made on 21 August 2001.

27. The defendant did rely on some reports created subsequent to that election. Dr Lewington was a rehabilitation physician who saw the plaintiff on 5 December 2001. He provided a report to Dr Loefler of the same date. As part of the history taken from the plaintiff, Dr Lewington recorded:

“He began to experience recurrence of symptoms in June of this year and mainly when his workload became heavier or more rushed. He states that he was expected to lift up to 40-50kg unassisted and felt harassed by his supervisor. He further aggravated his back when lifting boxes weighing up to 30-50kg on 14th October 2001. There was apparently a confrontation with his supervisor and he was sent home. According to Mr Glogoski, there are nil suitable or lighter duties for him at work.”

28. Dr Lewington, reporting to Dr Loefler, offered the following opinion:

“I agree with you that this man will not be able to return to his full pre-injury duties and there is serious doubt as to whether he will be able to return to manual type work.”

29. Counsel for the defendant submitted that from this report the following conclusions could be drawn:

1. In June 2001, two months before making the election, the plaintiff was experiencing a recurrence of symptoms when doing heavier work;

2. The plaintiff was working in a job where he was expected to lift up to 40-50kg unassisted;

3. The plaintiff was not able to return to his full pre-injury duties;

4. There was no evidence that the plaintiff had ever been fit to return to such pre-injury duties.

30. The defendant also relied upon a report of Dr Bodel, an orthopaedic surgeon. He provided a written report dated 4 March 2002 to the workers compensation insurer, in relation to an examination of the plaintiff on the same date. Dr Bodel took a history that in October 2001 the plaintiff “was forced by his leading hand to lift a roll which he knew to weight about 65kg”. The plaintiff told Dr Bodel that “he felt compelled to do this”.

31. Dr Bodel offered the following opinion:

“It was most unwise for this patient to undertaking the heavy lifting episode that he described in October 2001 and he indicates to me that at the time his doctors had continued to certify him fit for lighter duty work with a 20kg lifting limit on him.

This patient should never be engaged in lifting greater than 20kg because of the original disc injury.

The patient’s complaints are quite genuine and his long term prognosis is a little guarded.” (emphasis added)

32. Counsel for the defendant submitted that from this report it could be discerned that the plaintiff had never been fit after his operation to go back to his pre-injury duties.

Expert opinion as to prognosis at the time of the election

33. The evidence in this regard has been extracted above. In summary, Dr Selby Brown thought that the plaintiff was permanently restricted in his capacity to perform heavy or moderately heavy lifting at work. He thought that there was “potential for increase in this level of permanent impairment”. Dr Loefler, the treating surgeon, had advised the plaintiff to avoid heavy lifting and repetitive bending.

34. Both Dr Stephenson and Dr Bodel thought that the plaintiff was unable to do heavy work and that that would continue in the future. They regarded the prognosis as “guarded”.

35. Dr Lewington, and Dr Bodel, both reporting within a reasonably short period of time after the election was made, thought that the plaintiff continued to be unfit for full duties.

36. Both the plaintiff and the defendant relied upon much later medico-legal opinions, which I have not found to be of assistance.

37. The plaintiff relied upon a report of Dr Endrey-Walder. That doctor is a general and trauma surgeon, but not an orthopaedic surgeon. His medico-legal report of 3 October 2018 discloses that he did not have all of the medical material reviewed above, but rather he was only given “a couple of reports by Dr Andreas Loefler”. Dr Endrey-Walder was of the view that the plaintiff had resumed his pre-injury work at the time when the election was made. All of the medical evidence, and the contemporaneous histories given by the plaintiff at around that time, demonstrate that he had not been able to resume his pre-injury work, at least in the sense of being able to fully perform it. Dr Endrey-Walder offered the view that as at the date of the election the plaintiff had “fully recovered”. That is simply not the case on all of the medical evidence, including that of the treating surgeon. Dr Loefler was advising caution in relation to lifting and bending in the future. Finally, Dr Endrey-Walder said that the plaintiff “would have had no expectation of significant further deterioration to come”. Of course, the word “significant” is not in the statue. I therefore place no weight at all on the opinion of Dr Endrey-Walder.

38. The defendant relied upon later reports of Dr Bodel. He was asked to address the correct question, which was whether, at the time of the election in August 2001, there was no reasonable cause to believe that the further deterioration would occur, based on the opinions as to the prognosis of the claimant’s medical condition at the time.

39. Dr Bodel described this as a “difficult question”. He did point out that while the surgery resulted in significant relief of the left-sided sciatic pain and an improvement in the back pain, it did not cure all of the symptoms. He said that the natural history of a ruptured disc is that the disc is never again normal. It will over time slowly deteriorate and degenerate. He then said:

“That, however, is a different matter from his clinical condition from the point of view of pain or loss of function.”

40. Dr Bodel acknowledged that the plaintiff may well have functioned very well for a long period of time. He thought that “from a medical point of view it could be accepted that further deterioration is almost inevitable with this type of injury”. The disc is damaged and the natural history of a damaged disc is for it to become increasingly degenerate over time.

40. However, as Dr Bodel points out, that does not necessarily mean that there will be a deterioration in the plaintiff’s condition. It all depends upon the pain or loss of function which the plaintiff is experiencing.

41. Dr Bodel is of course speaking of a long-term deterioration in a damaged disc. That is not what happened to this plaintiff. He came out of the operation with a damaged disc, but he suffered a sudden and overwhelming aggravation of his injury in the October 2001 lifting incident. Dr Bodel says nothing as to whether there was no reasonable cause to believe that the further deterioration would occur based on the opinions of the plaintiff’s medical condition at the time.

42. The plaintiff himself expressed views about his expectations in his affidavit sworn on 1 February 2019. In paragraph 17 he said that at the time he made the election, he had no reason to believe that his injury would get any worse and that his level of impairment would increase. As the High Court said in State of New South Wales v Taylor, that evidence is irrelevant. I therefore take no account of the plaintiff’s own opinions as to his prospects, expressed in his affidavit.

Consideration

44. I make the following findings of fact in relation to the plaintiff’s medical condition at the time of the election:

1. The plaintiff was permanently unfit for work involving heavy or moderately heavy lifting (Dr Loefler, Dr Selby Brown, Dr Stephenson and Dr Lewington);

2. The plaintiff was doing work involving heavy lifting, even though he was under medical advice not to;

3. The plaintiff had begun to experience the recurrence of symptoms in June 2001 (Dr Lewington);

4. The plaintiff had lumbar pain and restriction of movement with some symptoms down the back of the left leg and he was taking Valium for sedation and quinine for left leg cramps (Dr Stephenson).

45. I make the following findings of fact in relation to the expert opinion as to prognosis at the time of the election:

1. There was potential for increase in the level of permanent impairment in the back and permanent loss of use in each leg (Dr Selby Brown);

2. The prognosis was guarded (Dr Stephenson and Dr Bodel);

3. No doctor suggested that the plaintiff would improve;

4. All doctors said that the plaintiff was permanently unfit for work involving heavy lifting, and that he should not do such heavy work.

46. On those facts, I find that the plaintiff has failed to discharge his onus to prove that there was no reasonable cause to believe that further deterioration would occur. It would not be unreasonable to believe that the further deterioration that occurred would occur – State of New South Wales v Taylor at [14] and [25]. Such a view would be based upon the findings of Doctors Loefler, Selby Brown, Stephenson and Lewington as to the plaintiff’s medical condition in August 2001, and the prognoses at or near that time of Doctors Selby Brown, Stephenson and Bodel.

47. No doctor said that there would be no further deterioration, so this case is unlike Corcoran v Tyre Marketers Australia [2001] NSWCA 300, where there was evidence of an optimistic prognosis, and even an improvement. This case is closer on the facts to both Cipriano v Sew Eurodrive Pty Limited [2016] NSWSC 1630 and Daniel v Holroyd City Council [2016] NSWDC 239. In both those cases the contemporaneous opinions of doctors were that the patient could expect future problems, even though operations had relieved the immediate severe symptoms.

48. Even if a belief had been reasonably open that there would be no further deterioration (and I see no evidence in support of such a view), there is much medical evidence (recited above) from several doctors for the opposite view, so the plaintiff still fails – State of New South Wales v Taylor at [14].

Orders

49. My orders are:

1. Plaintiff’s Summons dismissed;

2. Order the plaintiff to pay the defendant’s costs.

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Decision last updated: 21 May 2019