Hepburn v VWA
[2019] VCC 1241
•14 August 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised (Not) Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-04644
| GLENN HEPBURN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 July 2019 | |
DATE OF JUDGMENT: | 14 August 2019 | |
CASE MAY BE CITED AS: | Hepburn v VWA | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1241 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the lower back – injury to right shoulder – pain and suffering – pecuniary loss – whether consequences are “very considerable” – exacerbation in medico-legal examination – whether a novus actus interveniens – whether separate incidents constitute a single cause of action
Legislation Cited: Accident Compensation Act 1985 (Vic)
Cases Cited:AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; Barwon Spinners Pty Ltd & Ors v Podolak [2005] VSCA 33; Kite v George Patterson Pty Ltd& VWA [2008] VCC 1172; Johnson v Roads Corporation [2017] VCC 400; Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522; Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188; Advanced Wire & Cable Pty Ltd and VWA v Abdulle [2009] VSCA 170; Carbone v Toyota Motor Corporation Australia Limited[2017] VSCA 249; Humphries & Anor v Poljak [1992] 2 VR 129
Judgment: Application successful in relation to lower back
Application unsuccessful in relation to right shoulder
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer SC with Ms V McLeod | Maurice Blackburn |
| For the Defendant | Mr J Batten | Lander & Rogers |
HER HONOUR:
Preliminary
1 Mr Hepburn is a 50 year old man, who worked as a delivery driver for New Litho Pty Ltd from 2007 until approximately September 2017. Each morning, as part of this role, Mr Hepburn was required to load boxes of real estate brochures onto a truck, which he then delivered to multiple sites around Melbourne and the Mornington Peninsula. Mr Hepburn claims to have suffered two separate injuries in the course of this employment – an injury to his right shoulder and an injury to his lower back.
2 Mr Hepburn claims to have suffered his right shoulder injury throughout the course of his employment, and in particular, on 22 March 2013, when closing a faulty sliding door on the defendant’s truck. Mr Hepburn subsequently underwent surgery to his right shoulder and claims to have been left with serious pain and suffering consequences. In order for Mr Hepburn to be entitled to claim common law damages for this injury, the impairment to his right shoulder must satisfy paragraph (a) of the definition of “serious injury” contained in s134AB of the Accident Compensation Act 1985 (“the Act”).
3 The defendant accepted that Mr Hepburn injured his right shoulder whilst at work on 22 March 2013, but disputed this claim on the basis that Mr Hepburn made an excellent recovery following the surgery, such that the consequences to him now are modest, at best.
4 Mr Hepburn claims that his lower back injury arose over time, as a consequence of having to both repeatedly move boxes and to drive a truck for extensive periods with restricted vision. In particular, Mr Hepburn said that he suffered lower back pain in March 2014, after lifting a box, and that he experienced further back pain on 5 June 2014, when lifting another box. Mr Hepburn also said that his back pain was exacerbated on 11 May 2017, during a medico-legal examination with orthopaedic surgeon, Mr Michael Shannon.
5 Mr Hepburn claims to have suffered serious consequences to his lower back, both in respect of his pain and suffering and his loss of earning capacity. In order for Mr Hepburn to be entitled to claim common law damages for this injury, the impairment to his spine must satisfy paragraph (a) of the definition of “serious injury” contained in s134AB of the Act.
6 The defendant submitted that the Act prevents Mr Hepburn from accumulating the consequences to his lower back, which he suffered in each of the separate incidents in the course of his employment, up until August 2017. In addition, the defendant alleges that Mr Hepburn has the capacity to perform suitable duties on a full-time basis. The defendant further submitted that, in the event Mr Hepburn was permitted to combine the consequences of his lower back impairment, from each of the separate incidents, such consequences would not meet the relevant statutory threshold.
7 Mr Hepburn was called to give evidence and was cross-examined. Also in evidence were medical reports and other material. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all of that material in the course of this judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions reached in my judgment.
8 For the reasons which follow, I am satisfied that Mr Hepburn is permitted to allege that his lower back injury was suffered over the course of his employment, and that the consequences to him are such that he should be granted leave to commence common law proceedings for both pain and suffering and pecuniary loss damages. I am not satisfied, however, that the consequences to Mr Hepburn from his right shoulder injury can be described as at least very considerable and I therefore dismiss his application in respect of the right shoulder.
Mr Hepburn’s life before he injured his right shoulder and lower back
9 Mr Hepburn was born in Melbourne and attended secondary school until Year 10. After leaving school, he worked for 18 months in his father’s company, Repco Clutch, before subsequently working in the acoustic sheet metal industry.
10 In approximately October 1999, Mr Hepburn commenced his employment with the defendant, initially working as a trade assistant, and later as a forklift driver. Mr Hepburn said that he had worked for the defendant as a delivery driver since approximately 2007.
11 In approximately 1989, Mr Hepburn said that he suffered some lower back pain when lifting piles of paper, whilst working as a forklift driver. Mr Hepburn said that he was off work for several days, and that he received chiropractic treatment on and off for a few months. Mr Hepburn also said that he stopped playing football in 1989.
12 There is also a single reference to Mr Hepburn having suffered some back pain in a report of Mr Michael Shannon dated 15 May 2017. In his report, Mr Shannon noted that past records indicated that Mr Hepburn made a claim in respect of a back injury he suffered in 1991, whilst working as a packer. He further noted that a report from a Mr Shanmugam dated 10 March 1992, indicated that Mr Hepburn had normal lumbar movements, and that he was not experiencing any tenderness or muscle spasms. Mr Shannon then noted, “He was of the view that the injury resolved.” I am uncertain as to whether this comment is a reference to Mr Hepburn’s current view, or the view of Mr Shanmugam in 1991.
13 I note that this aspect of Mr Shannon’s report was not put to Mr Hepburn in cross-examination and that the report of Mr Shanmugam was not tendered. There is otherwise no evidence before me in relation to this incident. In any event, I do not consider this to be an incident of any significance, in circumstances where it appears to have been a relatively minor episode of back pain, and from which there is no evidence of Mr Hepburn having suffered any persisting symptoms.
14 There is evidence in the clinical records of his general practitioner, indicating that Mr Hepburn attended in May 2005, complaining that his back was “getting more sore”. His general practitioner noted on examination that Mr Hepburn’s movements were “okay” and that his straight leg raising was good. It was further noted that Mr Hepburn sought a WorkCover certificate at that time. When this clinical record was put to him in cross-examination, Mr Hepburn said that he had no recollection of having suffered back pain at that time, however, he did not challenge the contents of the clinical note.
15 In November 2005, Mr Hepburn again attended his general practitioner. The clinical records from this time stated that Mr Hepburn had injured his back whilst moving something that weighed 100 kilograms, and that he complained of pain in his lumbosacral spine, with tenderness at L5-S1. Once again, when this clinical record was put to him in cross-examination, Mr Hepburn stated that he had no recollection of having suffered back pain at this time, however, he did not challenge the contents of the clinical note.
16 In October 2006, Mr Hepburn attended his general practitioner complaining that he had injured his back at work. Once again, Mr Hepburn had no recollection of this attendance, and did not challenge the contents of the clinical note.
17 In approximately March 2010, Mr Hepburn was involved in a transport accident, when a bus struck the rear of the van he was driving at the time. Mr Hepburn said that he injured his neck and right shoulder in this accident, for which he received physiotherapy treatment.
18 On 25 March 2010, an x-ray was taken of Mr Hepburn’s right shoulder. It was reported as demonstrating osteoarthritic changes at the AC joint, but no fracture or dislocation was identified.
19 On 12 April 2010, an ultrasound was taken of Mr Hepburn’s right shoulder. It was reported as demonstrating a small amount of fluid in the tendon sheath, but no significant abnormality was otherwise detected.
20 Mr Hepburn said that his condition steadily improved after approximately nine months of physiotherapy treatment, and that, at the time he suffered his right shoulder injury in March 2013, he was working full-time and was able to engage in domestic, social and recreational activities without any significant restriction.
21 Mr Hepburn said that he enjoyed canoeing, hiking, camping and fishing in his leisure, and that he enjoyed spending time with his four children.
The nature of Mr Hepburn’s work duties with the defendant
22 From approximately 2007, Mr Hepburn worked for the defendant as a delivery driver in the south-eastern region of Melbourne and the Mornington Peninsula. He said that he delivered boxes of real estate brochures weighing between 5-15 kilograms. Mr Hepburn said that he loaded these boxes into a van, provided to him by the defendant, each morning, before then delivering them to numerous locations, travelling distances of approximately 300 kilometres per day. Mr Hepburn explained that he was often required to transport boxes up and down sets of stairs, and that he used a trolley when he was moving several boxes at a time.
Mr Hepburn’s right shoulder injury and its consequences
23 In late 2012, Mr Hepburn claimed that the rail of the sliding door on the Toyota HiAce van he drove at work popped out, making it difficult to close the door. As a result, Mr Hepburn said that he was required to slam the door back into place each time he wanted to close it.
24 On 22 March 2013, Mr Hepburn said that he strained his right shoulder whilst closing the van door. He said that he subsequently attended his local medical clinic, the Springvale Family Healthcare Clinic, where he saw general practitioner, Dr Vincent Gomes.
25 Dr Gomes arranged for an x-ray and ultrasound to be taken of Mr Hepburn’s right shoulder. The x-ray was reported as demonstrating marked degenerative change in the right AC joint. The ultrasound was reported as demonstrating mild right supraspinatus tendinopathy and moderate adhesive capsulitis.
26 In late April 2013, Mr Hepburn was referred to rheumatologist, Dr Marie Feletar, at which time he said that his right shoulder joint was tender. Dr Feletar advised Mr Hepburn to consult a surgeon if his pain persisted.
27 On 24 May 2013, an MRI scan was taken of Mr Hepburn’s right shoulder. It was reported as demonstrating moderate AC joint degenerative change, labral tears, including a small undisplaced SLAP-type tear, as well as mild scuffing of the superior bursal surface of the supraspinatus, with a further intrasubstance tear of fibres of the subscapularis.
28 Mr Hepburn said that he required a period of time off work, during which he underwent physiotherapy, hydrotherapy and gym treatment. He said that he was subsequently referred to orthopaedic surgeon, Mr Tom Tran, as his right shoulder pain continued to persist.
29 On 3 July 2013, Mr Tran performed an arthroscopic labral repair to Mr Hepburn’s right shoulder.
30 By October 2013, Mr Tran considered Mr Hepburn to have made a full recovery from the surgery, with an excellent prognosis. He noted that he expected Mr Hepburn to be able to return to full duties without any restrictions.
31 Mr Hepburn accepted that he made an excellent recovery from the surgery and said that, by late 2013, he was able to return to work on normal duties.
32 Mr Hepburn said that he has previously attempted to complete physiotherapy and hydrotherapy exercises in respect of his right shoulder, but said that it caused him soreness in his shoulder and arm in the days thereafter.
33 On 18 August 2016, Mr Hepburn attended upon Dr Gomes complaining of limited movement in his shoulder and pain with abduction beyond 100 degrees. On examination, Dr Gomes noted that internal rotation was painful at full range, and that power in his right arm was normal.
34 In July 2018, Mr Hepburn was assessed for a pain management program. Whilst his complaints focused predominantly on his lower back pain, it was also noted that Mr Hepburn suffered intermittent pain in his right arm, and significant strength and movement deficits in his right shoulder.
35 Mr Hepburn claims to suffer ongoing weakness and pain in his right shoulder. He said that his shoulder pain is aggravated by the repetitive movement of his right arm, as well as the application of pressure on his right arm. By way of example, Mr Hepburn said that his shoulder pain is aggravated by washing too many dishes, hanging out the laundry or scrubbing the toilets, and that whilst he can make the bed, the leaning also aggravates his shoulder.
36 In his first affidavit sworn on 29 March 2018, Mr Hepburn said that he found it difficult to sleep on his right shoulder. In his second affidavit sworn on 10 July 2019, Mr Hepburn said that, if he rolls onto his right shoulder when sleeping, he wakes with numbness down his arm and into his right fingers.
37 Mr Hepburn said that he has not been kayaking since prior to his shoulder surgery, and that he has not been fly fishing since suffering his shoulder injury, as the casting and reeling aggravates his right shoulder pain.
Medico-legal evidence in respect of Mr Hepburn’s right shoulder injury
38 Mr Hepburn’s solicitors arranged for him to be examined by occupational physician, Dr James Rowe, in July 2019. The purpose of the examination was to assess Mr Hepburn, both in relation to his lower back and right shoulder injuries. In his report dated 2 July 2019, Dr Rowe noted on examination that Mr Hepburn had a weak and wasted right upper limb. Dr Rowe noted a three centimetre difference between the left and right arms at equal points of measurement as well as limited movements in Mr Hepburn’s right shoulder. Dr Rowe also noted that Mr Hepburn had a weak grip in his right hand, when measured using a hand dynamometer over multiple trials. Dr Rowe was ultimately of the opinion that Mr Hepburn suffered internal derangement in his right shoulder, resulting in some symptoms and a lack of mobility.
39 Mr Hepburn’s solicitors also arranged for him to be examined by consultant physician in rehabilitation medicine, Dr David Murphy, in May 2019. The purpose of the assessment was to assess Mr Hepburn’s right shoulder and lower back injuries. In his report dated 16 June 2019, Dr Murphy did not note any evidence of shoulder impingement in Mr Hepburn’s right shoulder, but noted mildly limited abduction, flexion and internal rotation of his right shoulder, with tenderness over his right AC joint and cuff insertion.
40 Dr Murphy diagnosed Mr Hepburn as suffering a soft tissue injury to his right shoulder, which had been treated surgically, and from which he was left with ongoing pain and limitations of right shoulder function. As a result of his right shoulder injury, Dr Murphy considered it necessary for Mr Hepburn to avoid lifting, pushing or pulling of more than five kilograms with his right arm; avoid overhead work or work above shoulder height with his right hand; and avoid any repetitive lifting, carrying, pushing, pulling, twisting or gripping with his right arm.
41 The defendant arranged for Mr Hepburn to be examined by orthopaedic surgeon, Mr Michael Shannon, in May 2017, both in respect of his right shoulder and lower back injuries. Following the examination on 11 May 2017, Mr Shannon produced two separate reports dated 15 May 2017. In his report relating to Mr Hepburn’s right shoulder injury, Mr Shannon noted on clinical examination that there was mild to moderate restriction of movement in Mr Hepburn’s right shoulder and that impingement signs were mildly positive.
42 Mr Shannon diagnosed Mr Hepburn as suffering a labral tear to his right shoulder, which had been treated surgically, and which had a favourable diagnosis.
43 The defendant also arranged for Mr Hepburn to be examined by occupational physician, Dr Ralph Poppenbeek, in July 2014. I note that while the purpose of this appointment was to assess Mr Hepburn’s lower back injury, Dr Poppenbeek noted in his report dated 31 July 2014, that Mr Hepburn reported having made a recovery of about 90 per cent in his right shoulder at this time.
Mr Hepburn’s lower back injury and its consequences
44 In approximately December 2013, Mr Hepburn returned to work with the defendant. He was provided with a new van and resumed his normal driving duties. Mr Hepburn said that the new van did not have a rear passenger window on the left hand side, as a result of which he found it difficult to reverse. Mr Hepburn said that he had to twist his body in order to look out the windscreen. Mr Hepburn said that he began to develop back pain within approximately one week of returning to his normal duties, which he attributed to the repetitive twisting he was required to perform when reversing the van, as well as the heavy nature of his work.
45 On 3 March 2014, Mr Hepburn said that he experienced lower back pain when lifting a light box off a trolley. Mr Hepburn said that he managed to get through the remainder of his deliveries for that day, but subsequently attended the Dandenong Hospital Emergency Department, where he complained of lower back pain and sciatica. Mr Hepburn said that he had approximately one week off work at this time, but did not make a WorkCover claim, as he hoped he would recover soon thereafter.
46 On 5 March 2014, an x-ray and CT scan were taken of Mr Hepburn’s lumbosacral spine. This CT scan was reported as demonstrating a small L5-S1 disc herniation and L4-5 central spinal canal stenosis.
47 Mr Hepburn said that Dr Gomes then referred him to orthopaedic surgeon, Mr Patrick Byrne. I note, however, that based on his records, Dr Byrne did not assess Mr Hepburn until 23 July 2014.
48 Mr Hepburn said that he continued to suffer ongoing lower back pain, but that he returned to work in the hope the pain would decrease over time.
49 On 5 June 2014, Mr Hepburn said that he suffered further lower back pain when picking up a box from a trolley at work.
50 On 10 June 2014, a CT scan was taken of Mr Hepburn’s lumbosacral spine. It was reported as demonstrating disc bulges at L3-4, L4-5 and L5-S1, with the disc bulge at L4-5 impinging the anterior theca, and with mild central spinal canal stenosis.
51 On 23 July 2014, Mr Byrne reviewed Mr Hepburn, and recommended that he undergo a CT guided injection into his lower back. In a medical report dated 6 May 2016, Mr Byrne stated that Mr Hepburn presented with an extremely stiff lumbar spine at that time, with tenderness and restriction in forward flexion and extension.
52 On 24 July 2014, an MRI scan was taken of Mr Hepburn’s lumbar spine. It was reported as demonstrating an L4-5 focal posterior disc protrusion with posterior annular fissure contacting the descending left L5 nerve root, and L5-S1 focal posterior disc protrusion with posterior annular fissure, causing mild contact of the descending S1 nerve root bilaterally.
53 Mr Byrne related the majority of Mr Hepburn’s pain to the annular tear at L4/5 and possibly L5/S1.
54 At that time, Mr Hepburn said that he had a constant aching pain in his lower back, which was sharper and more intense on movement and which was aggravated by sitting, standing and walking. Mr Hepburn said that the pain radiated into his middle back and down his right hip and right upper thigh, with an altered sensation in his right upper thigh.
55 On 1 August 2014, at Mr Byrne’s suggestion, Mr Hepburn received a lumbar epidural injection. He said that the injection reduced the most intense part of his pain and that he received relief for some time thereafter.
56 Mr Hepburn also said that his lower back condition somewhat improved with physiotherapy treatment, which also included Pilates exercises.
57 On 25 September 2014, Mr Hepburn attended upon Dr Gomes who noted that he reported doing very well, that he did not have back pain, and that he had normal strength in his legs.
58 Mr Hepburn was then cleared to return to light duties with certain restrictions. He said that his employer had very little light work available to him at this time, however, and that he therefore undertook normal duties, albeit with a delivery route that was more confined.
59 Mr Hepburn said that he continued in full-time employment, with the constant presence of lower back pain.
60 On 18 August 2016, Mr Hepburn attended upon Dr Gomes complaining of limited movement in his right shoulder, as well as intermittent pain in his lumbosacral spine radiating into his right leg. It was noted that he had difficulty sleeping on his right side due to the radiating pain. On examination, Mr Hepburn’s straight leg raising was restricted to 70 degrees.
61 On 6 May 2017, Mr Hepburn attended his local medical clinic, where he saw Dr Peter Vu, as Dr Gomes had by this time retired. Dr Vu noted that Mr Hepburn complained of constant severe back pain, associated with bilateral feet numbness. He further noted that Mr Hepburn continued to attribute his back symptoms to frequent, repetitive heavy lifting and back twisting and bending at work. Dr Vu prescribed Mr Hepburn Lyrica capsules.
62 On 11 May 2017, Mr Hepburn attended a medical examination with orthopaedic surgeon, Mr Michael Shannon. The defendant’s statutory insurer arranged this examination in order to assess Mr Hepburn’s claimed level of impairment in respect of his right shoulder and lower back injuries. During the course of this examination, Mr Hepburn said that Mr Shannon went to perform a straight leg raise and that, whilst so doing, he felt a “pop” in his back and severe pain into his left leg and pelvis.
63 In his report dated 15 May 2017, Mr Shannon makes no reference to this incident. He refers to Mr Hepburn injuring his back in June 2014, at which time he went off work, and was experiencing pain in the centre of his lower back, and radiating down both his legs, particularly when walking. At the time of the examination in May 2017, Mr Shannon noted that Mr Hepburn had persisting pain in his lower back, which was made worse by driving. Mr Shannon also noted that Mr Hepburn experienced a constant ache in his back, and that he sometimes had to stop driving, in order to walk around. Mr Shannon also noted that Mr Hepburn had been trialling Lyrica at the time. He diagnosed Mr Hepburn as suffering a lumbar disc protrusion, with referred lower limb symptoms. Mr Shannon considered Mr Hepburn’s prognosis to be favourable, but noted that his back was vulnerable to further injury.
64 Following his medical examination with Mr Shannon, Mr Hepburn said that he worked for a day or two, before taking approximately one week off work. Mr Hepburn said that he then received a further Cortisone injection and returned to work for approximately three months. He said that he continued to perform the driving and delivery work throughout that time. Mr Hepburn noted, however, that he performed tasks such as stacking his van each morning at a much slower rate. He said that it took him approximately 15 minutes to load the van prior to his examination with Mr Shannon; as opposed to the 45 minutes it took him to complete the task after the examination.
65 On 19 May 2017, a CT scan was taken of Mr Hepburn’s lumbar spine. It was reported as demonstrating degenerative disc and facet disease, with mild bilateral L4/5 and L5/S1 foraminal stenosis without nerve root impingement.
66 On approximately 26 August 2017, Mr Hepburn said that he was told to return the van to the defendant’s premises and was then sent home. He said that whilst he was upset to lose his job, he was not shocked, as he believed his boss had witnessed the difficulties he was experiencing at work.
67 At about that time, Mr Hepburn’s claim for compensation in relation to his lower back injury was reinstated, following which he has continued to receive weekly payments.
68 On 18 October 2017, an MRI scan was taken of Mr Hepburn’s lumbar spine. It was reported as demonstrating a large midline disc extrusion at L5/S1, with moderate anterior impression on the thecal sac, and mild impingement on the S1 nerve roots.
69 In December 2017, Mr Hepburn was referred to orthopaedic surgeon, Mr Michael Johnson, in relation to his lower back pain. Mr Johnson obtained a history from Mr Hepburn that he had suffered a severe episode of lower back pain in 2014, which was treated with an epidural, following which his back had been satisfactory, “albeit with some residual symptoms.” Mr Johnson then noted that Mr Hepburn had suffered an exacerbation of symptoms following the recent medico-legal examination. At the time of his first attendance on Mr Johnson on 5 December 2017, Mr Hepburn complained of continuous lower back pain, which radiated to the groins in both legs.
70 On 8 December 2017, Mr Hepburn received an epidural injection into his lumbar spine, which he said had no lasting effect.
71 In January 2018, Mr Hepburn commenced physiotherapy treatment, involving a gym based program and a hydrotherapy class.
72 On 7 March 2018, an MRI scan was taken of Mr Hepburn’s lumbar spine. It was reported as demonstrating an L5-S1 disc protrusion abutting the S1 nerves, and non-compressive disc bulges at L3-4 and L4-5.
73 On 20 March 2018, Mr Johnson reviewed Mr Hepburn, and noted that whilst he had improved, he still had some numbness in his thighs and a burning sensation in his feet. Mr Johnson considered that the disc prolapse appeared to be spontaneously reabsorbing. Mr Johnson did not recommend surgery.
74 At about this time, Mr Hepburn commenced a computer course, which required him to complete one four-hour class per week. Mr Hepburn said that he struggled in this course as he found the sitting aggravated his back pain.
75 In July 2018, Mr Hepburn was referred for a multi-disciplinary pain management assessment, by practitioners at Advance Healthcare in Dandenong. In an assessment report dated 25 July 2018, it was noted that Mr Hepburn had restrictions when walking, sitting and standing, as well as when performing household and gardening tasks. He considered Mr Hepburn to be suffering persistent, moderately severe lumbar discogenic pain and associated dysfunction, with features of neuropathic lower limb pain. It was also noted that he suffered persistent post-operative right shoulder pain and dysfunction. It was recommended to Mr Hepburn that he undergo a pain management program, two to three times per week, for 8 to 12 weeks. This program involved medical, physiotherapy, hydrotherapy and psychology sessions.
76 On 5 February 2019 an MRI scan was taken of Mr Hepburn’s lumbar spine. It was reported as demonstrating a disc bulge at L5-S1, with no neural impingement, as well as a mild posterior disc bulge at L3/L4, again with no neural impingement.
77 On this day, Mr Johnson again reviewed Mr Hepburn, and noted that he was undergoing rehabilitation physiotherapy. In a report dated 28 February 2019, Mr Johnson said that he gained the impression that Mr Hepburn was “not making a lot of progress.”
78 In this report, Mr Johnson expressed the opinion that Mr Hepburn’s most recent pain exacerbation related to the medical examination performed in May 2017. He noted that there had been a severe exacerbation of his symptoms since that time, which had partially improved with the passage of time. Mr Johnson considered Mr Hepburn remained moderately disabled, and noted that he could not return to work as a delivery driver. Mr Johnson was hopeful that Mr Hepburn’s functional capacity may improve with rehabilitation.
79 On 7 February 2019, on Mr Johnson’s recommendation, Mr Hepburn underwent a further epidural injection into his lumbar spine. Mr Hepburn said that he initially gained a significant improvement in his pain, and that his “back felt the best it had in years.” Within a few weeks, however, Mr Hepburn said that his back and leg pain returned.
80 In July 2019, Mr Hepburn finished the pain management program, but felt that it had been of little benefit to him. In a report dated 10 July 2019, physiotherapist, Mr Luke Surkitt, from Advance Healthcare, noted that Mr Hepburn was “very compliant with treatment but unfortunately progress has been very slow.” Mr Surkitt considered that the attempts to improve Mr Hepburn’s physical capacity had been limited by his pain and impaired mobility. It was ultimately decided that there was unlikely to be any significant improvements in Mr Hepburn’s condition. At discharge, Mr Surkitt suggested that future treatment for Mr Hepburn include medication review, possible further spinal injections, hydrotherapy and the application of learnt pain management principles.
81 Mr Hepburn said that he has constant and severe pain in his lower back, which radiates into his legs and groin, and that he is unable to adopt any position that does not cause him to experience pain. Mr Hepburn said that such pain makes it difficult for him to walk more than a short distance, and that the pain is increased by prolonged sitting or standing.
82 Mr Hepburn said that he attends his general practitioner, Dr Vu, on a fortnightly basis. Dr Vu provides Mr Hepburn with certificates of capacity stating that he is fit for suitable duties, with restrictions on his sitting, standing/walking, bending, squatting, kneeling, and lifting. I note that whilst his most recent certificate only refers to Mr Hepburn’s lower back injury, Dr Vu also states that Mr Hepburn cannot reach above shoulder height. I am uncertain as to whether this is a restriction relative to his lower back or right shoulder injury.
83 Mr Hepburn said that he has trialled numerous medications for his back pain, including Tramadol, Endep and Lyrica. He presently uses Norspan patches, which he changes on a weekly basis, and regularly uses Nurofen.
84 In a report dated 8 March 2019, Dr Vu stated that Mr Hepburn continues to complain of constant severe back pain, which radiates into both legs, especially the right leg. Dr Vu noted the difficulties Mr Hepburn experienced whilst undertaking the computer course, due to the increased pain associated with prolonged sitting. Dr Vu did not consider Mr Hepburn capable of undertaking work involving lifting, pushing, pulling, carrying or prolonged sitting. Dr Vu considered Mr Hepburn’s prognosis to be poor, in circumstances where there had been a lack of improvement over the previous two year period.
85 Mr Hepburn has not worked since August 2017. He said that he has not looked for work since that time, as he considers himself to be in too much physical pain. He is also worried that he will aggravate his condition.
86 Mr Hepburn said that his back pain has interfered with his sleep, and that whilst he previously slept for seven hours per night, he now sleeps only three to four hours. Mr Hepburn said that he often wakes feeling exhausted, and frequently has to nap or lie down during the day.
87 Mr Hepburn said that he is limited in the activities he can perform around the house, due to his back pain. For example, he said that washing the dishes is difficult, as the sink is low and he has to lean forward, and that vacuuming and mopping hurt his back. Mr Hepburn also said that his back injury now prevents him from mowing the lawns or gardening.
Medico-legal evidence in respect of Mr Hepburn’s lower back injury
88 The defendant arranged for Mr Hepburn to be examined by occupational physician, Dr Poppenbeek, in July 2014. In his report dated 31 July 2014, Dr Poppenbeek noted that, as part of his employment, Mr Hepburn was required to load boxes of magazines, which came loaded on pallets, weighing approximately 15 kilograms. Dr Poppenbeek noted that the boxes were transferred manually or by way of a trolley and as such, Mr Hepburn’s employment involved “quite a lot of bending, twisting and lifting.”
89 On 5 June 2014, Dr Poppenbeek noted that Mr Hepburn experienced acute burning pain in his lower back, after an incident at work in which he picked up a 15 kilogram box.
90 At the time of the examination, Dr Poppenbeek noted that Mr Hepburn complained of mid back pain, as well as right-sided low back pain, for which he was taking OxyContin and Mobic medications. Dr Poppenbeek noted that Mr Hepburn had been unable to return to work due to the severity of his symptoms and current impairment.
91 Dr Poppenbeek was of the opinion that Mr Hepburn sustained an acute discogenic pain episode on 5 June 2014, resulting in pain in the right S1 nerve root distribution, probably emanating from disc derangement at L5/S1.
92 Dr Poppenbeek recommended that Mr Hepburn could attempt to return to work for an initial period of four hours per day, three days per week, with a lifting limit of five kilograms.
93 Dr Poppenbeek noted that he had obtained a history from Mr Hepburn that he had not suffered a back injury prior to 5 June 2014. However, Dr Poppenbeek was subsequently provided with a medical report from Mr Hepburn’s general practitioner, together with the radiology taken in March 2014. With this additional information, Dr Poppenbeek stated that there was probably pre‑existing constitutional degenerative change prior to 5 June 2014. However, Dr Poppenbeek remained of the opinion that the incident on 5 June 2014 had materially contributed to Mr Hepburn’s current incapacity.
94 In January 2019, Dr Poppenbeek re-examined Mr Hepburn. In his report dated 24 January 2019, he noted that, Mr Hepburn had resumed work and undertaken full duties until 2017. At this time, it was noted that there had been an escalation of Mr Hepburn’s lower back pain during a medical assessment.
95 Dr Poppenbeek noted that Mr Hepburn described persisting lower back pain on both sides extending to the pelvic region, with pain in his medial thigh and calf on the left side, and pain in the posterior area of the right leg and foot.
96 Dr Poppenbeek then stated that, in his opinion, Mr Hepburn suffers an aggravation of pre-existing facet joint and disc degenerative disease in his lumbosacral spine; and focal lumbosacral disc protrusion compressing the left and right S1 nerve root. However, he noted that he considered this condition to have now substantially resolved. Dr Poppenbeek also considered there to be a significant focus on pain and disability, which may represent a “psychological mal-adaption to the back injury.”
97 Dr Poppenbeek noted that there was pre‑existing degenerative changes, and was of the opinion that the claimed injury materially contributed to Mr Hepburn’s current work incapacity.
98 Dr Poppenbeek was of the opinion that Mr Hepburn was not fit for his pre‑injury duties and hours. In relation to alternative work, he recommended that it would be appropriate for Mr Hepburn to return to work for three to four hours per day, two to three days per week, “with more frequent breaks than usual.” Dr Poppenbeek considered that his sitting and standing should be limited to about 30 and 15 minutes respectively, and that Mr Hepburn should avoid unsupported, repetitive or prolonged forward bending. Dr Poppenbeek also recommended a five kilogram lifting limit and said that Mr Hepburn should be careful when pushing and pulling objects.
99 Dr Poppenbeek concluded his report by commenting that whilst Mr Hepburn had a very limited work capacity at that time, he considered it “will improve as he adapts to his situation better.”
100 In May 2018 and November 2018, Mr Hepburn was assessed by Nabenet for the purpose of identifying suitable employment options. In the report of May 2018, it was recommended that Mr Hepburn had transferrable skills so as to enable him to perform the following jobs, with either minimal or no training: light courier (medical), quality assurance officer, despatching and receiving clerk, customer service representative, parking inspector, meter reader, and mobile safety camera operator.
101 The Nabenet report of November 2018 considered the following jobs to be suitable employment options for Mr Hepburn: light courier, light assembly worker, car park attendant, quality control, and dispatch and receiving clerk.
102 The Nabenet reports were shown to Dr Poppenbeek, who was of the opinion that whilst Mr Hepburn could not undertake meter reading or parking inspector work, he could perform light courier work, receiving clerk, quality assurance and mobile safety camera operator work, provided such jobs were within the restrictions outlined above. Overall, Dr Poppenbeek considered Mr Hepburn to have a very limited work capacity, but thought that this would improve as he better adapted to his situation.
103 Mr Hepburn’s solicitors arranged for him to be examined by neurosurgeon, Professor Peter Teddy, in March 2019. In his report dated 29 April 2019, Professor Teddy noted that his lower back pain initially developed in the context of Mr Hepburn having to twist his spine, when reversing his van at work. It was noted that Mr Hepburn developed a lot of back soreness at that time. Professor Teddy then noted that Mr Hepburn developed “instant low back pain” in March 2014, when lifting a box out of his van. Whilst it was noted that Mr Hepburn subsequently returned to work with a 12 kilogram weight restriction, he reported almost “constant low back pain” with pain radiating into his right foot. Professor Teddy obtained a history of the medico-legal examination in May 2017, when Mr Hepburn reported that he felt a disc had “popped out”.
104 At the time of the examination, Professor Teddy noted that Mr Hepburn complained that his lower back pain was his worst problem, but that he also suffered right thigh numbness when lying down, stabbing pain in his left inner thigh and numbness in his coccygeal region, when sitting for more than 30 minutes.
105 Professor Teddy was of the opinion that, prior to the onset of his back-related symptoms in the latter part of 2013, Mr Hepburn had a degree of lumbar spondylosis which had been “relatively quiescent/asymptomatic” which was rendered symptomatic in the latter part of 2013. Professor Teddy then stated that the episode in 2014, in which Mr Hepburn had lifted a box at work, further exacerbated Mr Hepburn’s condition and precipitated further pathological change in the L5/S1 disc and probably exacerbating facet arthropathy. Professor Teddy was of the opinion that the medico-legal examination in 2017 caused Mr Hepburn’s condition to become “more profound and symptomatic”. Professor Teddy said that, had Mr Hepburn’s L5/S1 disc been entirely intact at that time, he considered it unlikely that such a procedure could have precipitated an acute disc prolapse.
106 Professor Teddy considered the disc herniation to have subsequently largely resolved, as seen on the most recent MRI scan. However, he considered Mr Hepburn’s present status to be one of “symptomatic mechanical low back pain with (most probably) neuropathic pain the lower limbs as a result of previous compromise of the S1 nerve root.”
107 Professor Teddy was of the opinion that Mr Hepburn currently suffers an incapacity, but considered any such incapacity would be limited to the types of sedentary occupations proposed by Dr Poppenbeek, if Mr Hepburn was able to be rehabilitated.
108 Mr Hepburn’s solicitors also arranged for him to be examined by orthopaedic surgeon, Associate Professor Bruce Love, in May 2019. In his report dated 24 May 2019, Associate Professor Love noted that Mr Hepburn developed pain in his lower back in approximately March 2014, that he attended the Dandenong Hospital and that he had one week off work. Associate Professor Love then noted that Mr Hepburn attempted to make his work easier to complete, by restricting the loads that he lifted. Associate Professor Love recorded that Mr Hepburn had ongoing burning pain in his lower back, for which he required a period of time off work. Upon his return to work he was given a lifting restriction of 12 kilograms. Associate Professor Love then noted that Mr Hepburn complained that he felt “extreme pain” during a medico-legal examination in May 2017, when a straight leg-raising test was performed.
109 Associate Professor Love noted that Mr Hepburn complained of pain in his lower back at the time of his examination, with discomfort in both legs, particularly the front of the thighs, with some sensory disturbance in the lower limbs.
110 Associate Professor Love considered Mr Hepburn to be suffering a severe multilevel degenerative disease of the lumbar spine, and noted that a significant disc protrusion at L5/S1 was contributing to his leg symptoms.
111 Associate Professor Love was of the opinion that Mr Hepburn had suffered an organic injury as a result of the “workplace accident”, which resulted in the aggravation of degenerative disc disease of the lumbar spine. He considered the majority of Mr Hepburn’s symptoms to relate to the L5/S1 disc. Specifically, Associate Professor Love said that Mr Hepburn’s work activities “can reasonably be accepted as the cause of the injury and present incapacity.”
112 Associate Professor Love considered Mr Hepburn to require some form of pain management and medication, and noted that physiotherapy did not otherwise appear to be effective.
113 As mentioned previously, Dr Rowe examined Mr Hepburn in July 2019, both in respect of his right shoulder injury and his lower back injury. In relation to his lower back injury, Dr Rowe noted that Mr Hepburn suffered injury to his lower back on 5 June 2014, following an attempt to lift a 15 kilogram object from a trolley.
114 Dr Rowe noted that Mr Hepburn had not worked since May 2017, “due to ongoing lower back and right shoulder pain.” Further, Dr Rowe noted that Mr Hepburn’s back and right shoulder had not improved over the last two years, that he has a poor quality of sleep and wakes often.
115 Dr Rowe noted that Mr Hepburn’s chronic back pain was aggravated by prolonged standing, sitting, bending, twisting, squatting and walking. He also noted that Mr Hepburn cannot lift and has a reduced range of lumbosacral movements. Dr Rowe was of the opinion that Mr Hepburn did not have the capacity for his pre‑injury duties, whether on a full-time or part-time basis. Dr Rowe stated that Mr Hepburn was unable to perform duties that require repetitive movement or strength in his right upper limb or lower back and that he cannot lift, carry, twist or bend.
116 Dr Rowe was then asked specifically to comment on the employment positions identified in the Nabenet report of May 2018. Dr Rowe was of the opinion that none of the jobs were within Mr Hepburn’s capacity on either a full-time or part-time basis, due to the chronic pain in his lower back and right shoulder. Dr Rowe noted specifically that Mr Hepburn does not currently have the capacity for employment, and that he is unlikely to get back to work, “without extensive retraining”.
117 As mentioned previously, Dr Murphy examined Mr Hepburn in May 2019, both in respect of his right shoulder injury and his lower back injury. In his report dated 16 June 2019, Dr Murphy detailed the history he obtained from Mr Hepburn that he had experienced difficulties reversing his van upon returning to work in late 2013, following which he had subsequently developed lower back pain when lifting boxes in March 2014. Dr Murphy also obtained a history that Mr Hepburn had suffered a severe aggravation of right leg pain when a medico-legal examiner had performed a straight leg raise during an examination in May 2017.
118 Dr Murphy noted that Mr Hepburn complained of pain in his back and left and right legs when walking, as well as numbness in his coccyx if he sat for more than 45 minutes. He further noted that Mr Hepburn had difficulty lying flat, and that he experienced numbness in his thighs after lying for more than 15 minutes at a time.
119 Dr Murphy diagnosed Mr Hepburn as suffering an aggravation of degenerative disease in his lumbar spine associated with lifting and twisting activities at his work, with an L5/S1 disc prolapse suffered during a medical examination in 2017.
120 Dr Murphy then stated that, as a consequence of his lower back injury, Mr Hepburn was restricted to the following limitations:
(1)no lifting more than five kilograms;
(2)no repetitive lifting, twisting or bending of the lumbar spine;
(3)no sitting, standing or walking for more than 30 minutes at a time;
(4)no repetitive jolting to the lumbar spine.
121 Dr Murphy was of the opinion that Mr Hepburn was incapacitated from performing his pre‑injury duties as a delivery driver, as such a role would require him to frequently lift boxes of pamphlets weighing 15 kilograms, with frequent bending and twisting at his lumbar spine, together with prolonged periods of sitting and jolting whilst driving the van. Dr Murphy considered it likely that such activities would aggravate Mr Hepburn’s lower back injury, as well as his right shoulder condition.
122 Dr Murphy then considered the potential employment options recommended in Nabenet’s May 2018 report. Dr Murphy commented on the proposed jobs as follows:
(1) Light courier medical
Dr Murphy identified that this position involves functional requirements including frequent bending and lifting, and constant driving. He did not consider this role to constitute suitable employment for Mr Hepburn.
(2) Quality assurance officer
Dr Murphy identified that this position involves frequent standing and walking as well as the potential lifting and carrying of items, as well as bending, squatting, crouching and kneeling. In addition to Mr Hepburn not possessing the transferrable skills associated with computing and reporting requirements, Dr Murphy was of the opinion that there were some physical activities associated with this role which would aggravate Mr Hepburn’s lower back condition.
(3) Despatch receiving clerk
Dr Murphy identified that this position involves sitting at computer stations for unspecified periods, with the potential requirement to use a forklift or hoist. Dr Murphy considered that Mr Hepburn would need to complete a computer course in order to be able to undertake such activities. Further, Dr Murphy had concerns as to whether Mr Hepburn would be able to perform repetitive lifting movements, on the basis that such movements may aggravate his medical conditions. In expressing this opinion, I note that Dr Murphy did not distinguish between Mr Hepburn’s lower back injury and right shoulder injury.
(4) Customer service representative
Dr Murphy identified that this position involves customer service, which itself requires significant interpersonal skills, as well as literacy and computer skills. Dr Murphy did not consider Mr Hepburn to possess the requisite skills to perform this position.
(5) Parking inspector
Dr Murphy identified that this position requires constant standing and walking in order to inspect vehicles. Dr Murphy was therefore of the opinion that such a position would aggravate Mr Hepburn’s lower back condition, to the extent that he was incapable of performing this work.
(6) Meter reader
Dr Murphy identified that this position also requires a significant degree of walking, as well as the potential for bending, squatting and crouching. Dr Murphy did not consider this role to constitute suitable employment for Mr Hepburn.
(7) Mobile safety camera operator
Dr Murphy identified that this position would involve sitting for prolonged periods, which he considered would likely aggravate Mr Hepburn’s lower back condition. He also noted that Mr Hepburn may be required to drive for extended periods of time.
123 Dr Murphy was ultimately of the opinion that Mr Hepburn’s physical restrictions, his lack of transferrable work skills, his age, and his lack of experience in sales, office or administrative roles, were such that he did not have a realistic chance of obtaining meaningful work which he would be able to undertake in a “consistent, reliable and safe manner.”
124 The defendant arranged for Mr Hepburn to be assessed by occupational physician, Dr P D Clark, in November 2017. In his report dated 30 November 2017, Dr Clark referred to Mr Hepburn’s work duties and his right shoulder injury, before noting that, in 2014, “he suffered a back injury handling boxes at work.” Dr Clark also obtained a history that Mr Hepburn’s back injury worsened, following the medico-legal examination in May 2017.
125 Dr Clark noted that Mr Hepburn complained of constant severe back pain, with right sciatica, and numbness when sitting for extended periods. On examination, Dr Clark noted that Mr Hepburn was unable to stand straight, that there were palpable muscle spasms in the lumbar midline, and that his movements at the waist were restricted in all directions by pain. Dr Clark considered that Mr Hepburn suffered lumbar disc disruption, with radiculopathy, and that his manual handling duties were a significant contributing factor to this injury.
126 Dr Clark was of the opinion that Mr Hepburn was unfit for all work at that time.
127 The defendant arranged for Mr Hepburn to be examined by occupational physician, Dr Joseph Slesenger, in July 2018. In his report dated 11 July 2018, Dr Slesenger noted the duties that Mr Hepburn had performed for the defendant, before then detailing the episodes of lower back pain he experienced in March and June 2014. Dr Slesenger also obtained a history in respect of the aggravation of symptoms following the medico-legal examination in 2017.
128 Dr Slesenger noted that, at the time of this examination, Mr Hepburn complained of ongoing moderate to severe pain in his lower back, radiating to both legs, together with associated numbness in his right thigh and a burning sensation in his right foot. At the time, Mr Hepburn was taking Tramadol, Lyrica, Endone and Mersyndol Forte.
129 Dr Slesenger diagnosed Mr Hepburn as suffering a mechanical injury to his lumbar spine, with an aggravation of degenerative disease, with radiating features, but with no evidence of radiculopathy. Dr Slesenger was of the opinion that Mr Hepburn could not return to his pre-injury duties as a delivery driver, but that he had the capacity for work, with the following restrictions: no pushing, pulling, carrying or lifting over five kilograms; no repetitive bending or twisting; no exposure to whole body vibration; no prolonged static postures.
130 Dr Slesenger then considered the jobs proposed in the Nabenet report and stated that he was optimistic Mr Hepburn could work as a light courier, customer service representative, meter reader, and light packing/assembly worker.
131 The defendant arranged for Mr Hepburn to be examined by neurosurgeon, Dr Brazenor, in June 2019. In his medical report dated 27 June 2019, Dr Brazenor detailed Mr Hepburn’s history, the medical imaging, and his findings on examination. Dr Brazenor considered that Mr Hepburn displayed a grossly contrived gait and that his continuous staggering was “totally discordant with anything other than life-threatening pathology” in the lumbar spine. In addition, Dr Brazenor considered Mr Hepburn’s straight leg raising exercise when sitting up to be inconsistent with the results when lying down. Dr Brazenor then stated that he considered it implausible for Mr Hepburn to suffer irritation in his lower back when being asked to sit down on a chair.
132 Dr Brazenor was of the opinion that Mr Hepburn’s lower back was rendered symptomatic from the repetitive bending and lifting in his role as a delivery driver in March and June 2014. Dr Brazenor did not obtain a history as to what occurred during Mr Shannon’s medical examination with Mr Hepburn in May 2017, but simply commented that by October 2017, Mr Hepburn had sustained a large prolapse of the L5/S1 disc. However, Dr Brazenor also considered Mr Hepburn’s lumbar spine to be within the normal limits of a man of his age, by the time a further MRI scan was taken in early 2019,
133 Dr Brazenor considered there to be a “huge credibility gap” as between Mr Hepburn’s allegations of pain and disability, and his most recent MRI scan. He concluded that Mr Hepburn was “perpetrating a ruse” on his doctors, the WorkCover process and his family.
134 Dr Brazenor was of the opinion that Mr Hepburn was fit for full-time employment, the only restrictions being that he avoid jobs which involved repeated bending at the waist, repeated accessing of levels less than 60 centimetres above the surface on which he stands, or vigorous pushing or pulling movements.
Mr Hepburn’s reliability
135 The defendant submitted that I should consider Mr Hepburn an unreliable witness, in part on the basis that he gave inconsistent histories to the medico-legal doctors, and failed to disclose that he had experienced occasions of lower back pain since 1989.
136 I do not accept this submission. I considered Mr Hepburn to be an honest witness, who gave evidence in a simple, straightforward and credible manner. I accept that his memory was poor at times, especially when being asked to recall medical attendances many years ago. However, I note that Mr Hepburn readily accepted the histories contained within those records. I do not consider his poor memory to have impacted upon his credibility in respect of his claimed consequences in recent years.
137 The defendant also relied upon Dr Brazenor’s conclusion that Mr Hepburn’s complaints and presentation were such that he was “perpetrating a ruse.”
138 I note that Dr Brazenor is alone in his emphatic conclusion that there is a “huge credibility gap” as between Mr Hepburn’s allegations of pain and disability, and his most recent MRI imaging. I prefer the opinions of all of the other doctors who provided opinions in this case, who accept that Mr Hepburn has suffered a lower back injury which causes him ongoing pain and restriction of movement.
139 In noting Mr Hepburn’s poor memory in respect of his early medical history, I consider the contemporaneous clinical records to be more reliable. I otherwise have no hesitation in accepting Mr Hepburn as a credible witness.
Mr Hepburn’s lower back injury
140 Section 134AB of the Act provides that, for a worker to recover common law damages in respect of any injury “arising out of, or in the course of, or due to the nature of, employment,” the injury must be a serious injury.
141 The defendant challenged this claim firstly on the basis that Mr Hepburn was not permitted to rely upon the separate incidents in March and June 2014, as being part of a lower back injury, suffered as a consequence of the repetitive tasks performed by him, in the course of his employment, over a period of time. The defendant relied upon the Court of Appeal decision in AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz,[1]in support of its submission, in order to allege that, where a worker has suffered injury to the same body function in separate discrete incidents, the effects of each incident cannot be accumulated in the one serious injury application.
[1](2012) 34 VR 309 (“Filipowicz”)
142 I note that in Filopowicz, however, the plaintiff suffered an initial shoulder injury with one employer in 2003, before then suffering a second injury with a different employer in 2006.
143 Mr Hepburn submitted that it was permissible for him to claim a serious injury to his lower back, from the nature of his work, which involved prolonged driving and frequent and heavy lifting, including the lifting incidents in March and June 2014.
144 Mr Hepburn referred me to the Court of Appeal decision in Barwon Spinners Pty Ltd & Ors v Podolak,[2] and in particular, to those aspects of the judgment which related to the case of Stojanovski v Bartter Enterprises Pty Ltd& Ors, in which the Court of Appeal stated:
“…we are not at all sure that whenever a worker is injured in the same body part in successive and similar incidents, close in time and while working at the same job with the same employer, such a fine analysis of before and after each incident is always required. It might be unfortunate for the worker if, despite the final consequences, each separate incident was ruled not to amount to serious injury, or, even if the last was ruled to be serious injury because of the final consequences, the worker was not permitted to sue at common law for the earlier incidents which had perhaps brought him or her to a parlous state in the first place. The need to analyse the Plaintiff’s condition both before and after each incident causing injury was certainly recognised in Petkovski, Dalton and Lu but, on further analysis, it might perhaps be that special considerations required such an approach to be taken in those cases. For example, in Petkovski the proposed defendant was the other driver in a motor vehicle accident, who obviously could be responsible only for the injury wrought in the accident. Perhaps much will ultimately be seen to turn on the precise nature and extent of the common law proceeding which the applicant for leave is proposing to bring if leave is granted. But we say no more about it because it does not matter in this case.”[3]
[2][2005]VSCA 33
[3]Ibid at [89]
145 In addition, I was referred to two decisions of his Honour Judge Wischusen, in Kite v George Patterson Pty Ltd& VWA[4] and Johnson v Roads Corporation[5]. In both cases, Wischusen J held that, in an appropriate case, it could be permissible for a worker who, whilst engaged in a system of work, sustained repeated insults to a single body part, to accumulate such damage in an assessment of whether the worker satisfies the serious injury threshold.
[4][2008] VCC 1172
[5][2017] VCC 400
146 In this case, Mr Hepburn has a proposed cause of action as against the one employer. He alleges that, as a consequence of driving and moving boxes over time, he suffered an injury to his lower back, including in particular, the incidents in March and June 2014, and the exacerbation in the medical examination in May 2017.
147 Having considered all of the evidence, I am satisfied that Mr Hepburn’s lower back injury arose as a consequence of the general nature of the duties he was required to undertake as a delivery driver. He performed similar tasks each day. The two incidents in March and June 2014 were relatively innocuous, and were in no way different from the general lifting tasks he performed on a multitude of occasions on any given day. As such, I am satisfied that Mr Hepburn’s lower back injury is “an injury arising out of, or in the course of, or due to the nature of, employment.” I am also satisfied that Mr Hepburn is entitled to rely upon the cumulative impairment arising from the back injury which he suffered as a consequence of the nature of such duties.
Was the medical examination with Mr Shannon a novus actus interveniens?
148 In the alternative, the defendant submitted that the medical examination performed by Mr Shannon in May 2017, should be regarded as a novus actus inconveniens, such that the defendant should not be liable for any injury suffered in the course of that examination.
149 As was noted by the High Court in Mahony v J Kruschich (Demolitions) Pty Ltd,[6] when an injury is exacerbated by medical treatment, the exacerbation, even if caused by negligent medical treatment, is regarded as a foreseeable consequence, for which the initial tortfeasor is liable. Provided the medical treatment does not constitute gross negligence, there is no break in the chain of causation.
[6](1985) 156 CLR 522
150 It is common ground amongst those doctors who were aware of what occurred in this medico-legal examination, that Mr Hepburn suffered an exacerbation of his lower back injury at this time. The performance of a straight leg raise is a standard test in the medical examination of a patient suffering a lower back injury, and there is no suggestion that the performance of this test by Mr Shannon was negligent, let alone grossly negligent.
151 I therefore consider the exacerbation Mr Hepburn suffered in this medical examination, and the consequences he suffered as a result, can be assessed as part of the consequences arising from the lower back injury, which he suffered due to the nature of his duties with the defendant as a delivery driver.
Mr Hepburn’s pre-existing lower back condition
152 The defendant submitted that Mr Hepburn’s claim against the defendant needed to be assessed in the context of his pre-existing degenerative disc disease, in circumstances where he had suffered some episodic incidents of lower back pain since February 1989. It was submitted that, in assessing Mr Hepburn’s impairment arising from his employment with the defendant as a delivery driver, I must consider only those consequences arising from the aggravation of that pre-existing condition.
153 Whilst Mr Hepburn had prior episodes of lower back pain, I accept his evidence that he did not suffer any ongoing pain or restriction of movement in his lower back at the time he commenced working as a delivery driver in 2007. As there was no impairment of his spine at that time, there are no pre-existing consequences to disregard or strip away.
Mr Hepburn’s claim for loss of earning capacity as a consequence of his lower back impairment
154 To succeed in his claim for loss of earning capacity, as a consequence of his lower back impairment, pursuant to s134AB(38)(e)(i) of the Act, Mr Hepburn must establish that he has a loss of earning capacity as at the date of the hearing of 40 per cent or more. Further, he must establish, pursuant to ss38(e)(ii), that he will, after the date of the hearing, continue to have a permanent loss of earning capacity which will be productive of a financial loss of 40 per cent or more.
155 It was agreed between that parties that Mr Hepburn’s without injury earnings figure is $46,293.00 gross per annum, which equates to a gross weekly wage of $890.25. Therefore, in order to succeed in this application, Mr Hepburn must satisfy me that, due to his lower back impairment, he is incapable of earning more than $534.15 per week in suitable employment, on a permanent basis.
156 In the Court of Appeal decision of Harris v DJD Earthmoving Pty Ltd,[7] it was noted that, under s134AB of the Act, the court must consider what work the plaintiff might, in the foreseeable future, be able to do on a regular and consistent basis.[8]
[7][2016] VSCA 188
[8]Ibid at [49]
157 Dr Clark, Dr Murphy and Dr Rowe were of the opinion that Mr Hepburn did not have a capacity for suitable employment. Dr Clark did not re-examine Mr Hepburn after offering his opinion in November 2017 and as such, his opinion is somewhat out-dated. However, Dr Murphy and Dr Rowe have examined Mr Hepburn in the last few months, and both were of the opinion that, given his restrictions and lack of transferable skills, there were no jobs for which Mr Hepburn was suited. Further, Dr Murphy was of the opinion that, even if suitable employment was identified, Mr Hepburn did not have a realistic chance of undertaking such work in a consistent, reliable and safe manner.
158 Save for Dr Brazenor, all of the treating and medico-legal doctors accept that Mr Hepburn’s lower back injury prevents him from returning to work as a delivery driver. For the reasons stated previously, Dr Brazenor’s assessment of Mr Hepburn does not accord with my assessment that he was a credible witness, and as such I accept Mr Hepburn’s account of pain, and the restrictions it imposes upon him. Therefore, in assessing Mr Hepburn’s claim, I have had no regard to Dr Brazenor’s opinion.
159 The issue for me to determine is whether or not there are any suitable duties Mr Hepburn can perform on a consistent and reliable basis, and if so, for how many hours per week can he perform those duties.
160 I accept that Mr Hepburn suffers a persisting injury in his lumbar spine. Whilst the latest MRI scan shows that the disc prolapse at L4/5 has reabsorbed, I am satisfied that Mr Hepburn suffers a mechanical injury in his lower back, with neuropathic pain. I accept that this lower back injury causes Mr Hepburn to suffer constant lower back pain, with referred pain into his legs. I am also satisfied that his lower back pain is exacerbated by prolonged sitting, standing and walking. I also accept that Mr Hepburn’s lower back pain interferes with his sleep, and that he often wakes tired and frequently lies down during the day to rest. I accept that Mr Hepburn uses Norspan patches for ongoing pain relief.
161 In assessing Mr Hepburn’s capacity for work, my acceptance of Mr Hepburn’s account of pain and his claimed consequences is highly relevant, as such consequences impact upon his ability to undertake suitable work, on a reliable and consistent basis.
162 Dr Vu considers that Mr Hepburn has the capacity to undertake some work, provided numerous restrictions are met. I note that Dr Vu does not state the number of hours he considers Mr Hepburn would be capable of performing such work. In circumstances where Dr Vu expressly acknowledges the difficulties Mr Hepburn experienced when attending the short computer course, for four hours per week, I consider it unlikely that Dr Vu considers Mr Hepburn capable of working full-time. I also note that Dr Vu was of the opinion that Mr Hepburn’s prognosis was poor, thus ruling out any likely improvement in his work capacity.
163 Given the frequency with which Dr Vu sees Mr Hepburn, I give considerable weight to his opinion that Mr Hepburn can at least undertake some work, provided such work is consistent with his restrictions.
164 Mr Johnson reviewed Mr Hepburn on several occasions, the last being February 2019. Mr Johnson hoped that Mr Hepburn’s functional capacity may improve with rehabilitation. I note, however, that Mr Johnson has not seen Mr Hepburn since he finished the pain management program, and is therefore unaware that Mr Hepburn made only minimal progress with this course.
165 Professor Teddy was of the opinion that Mr Hepburn may be able to perform sedentary work, with rehabilitation. Professor Teddy did not comment on the suitability or otherwise of any jobs, or the number of hours he considered Mr Hepburn would be capable of working each week. I also note that Professor Teddy’s comment in relation to rehabilitation did not seem to take into account that, as at April 2019, Mr Hepburn had completed several months of pain management, with no substantive improvement in his capacity.
166 Dr Slesenger detailed a number of work restrictions for Mr Hepburn, within which he considered there to be several jobs he was optimistic Mr Hepburn could perform. Such jobs included light courier, customer service officer and meter reader. In his report, however, Dr Slesenger was silent upon the number of hours he considered Mr Hepburn would be capable of undertaking each week in such suitable employment.
167 Dr Poppenbeek also detailed a range of work restrictions for Mr Hepburn, but considered the jobs of light courier, quality assurance officer and mobile safety camera operator, to constitute suitable employment consistent with Mr Hepburn’s restrictions.
168 Unlike Dr Slesenger and Professor Teddy, Dr Poppenbeek expressed an opinion on the number of hours he considered that Mr Hepburn could perform each week in a graduated return to work. He stated that, given the difficulties Mr Hepburn experiences when moving due to his pain, he could only work three to four hours per day, for two to three days per week, with a need for more frequent breaks. This equates to a maximum of 12 hours per week.
169 Whilst Dr Poppenbeek offered an opinion that this limited functional capacity would improve with time, I consider the lack of progress Mr Hepburn made in the pain management course, to be such that any likelihood of improvement is now improbable.
170 In considering all of the evidence, I am satisfied that Mr Hepburn could work a maximum of 12 hours per week, in suitable employment, on a consistent and reliable basis. I consider a maximum of three days per week, would allow Mr Hepburn to rest fully on alternate days, and thus enable him to recover sufficiently so as to attend work the following day. I also consider Mr Hepburn could work a maximum of four hours per day, noting that he struggled to complete four hours per day whilst undertaking his computer course. I consider it unrealistic to expect Mr Hepburn to demonstrate a greater work capacity, given the frequency and intensity of his lower back pain.
171 In finding that 12 hours per week constitutes Mr Hepburn’s maximum work capacity, on any of the hourly rates for the jobs considered suitable by Dr Slesenger or Dr Poppenbeek, Mr Hepburn would earn considerably less than $534 gross per week. As such, I am satisfied that Mr Hepburn suffers the requisite 40 per cent loss of earning capacity.
172 I am satisfied that this loss of earning capacity of 40 per cent or more is permanent. Mr Hepburn has recently undergone a pain management program which has not resulted in any improvement in his condition. Further, Mr Hepburn’s attempt to retrain by completing a computer course was unsuccessful due to his pain levels. I consider that his symptoms have been relatively consistent for the past two years, with no prospect of improvement.
173 Once a threshold of 40 per cent reduction in earning capacity has been met, it is still necessary for me to consider whether the consequences to Mr Hepburn meet the “very considerable test”.[9]
[9]s134AB(38)(c) Accident Compensation Act 1985 (Vic)
174 Given my acceptance that Mr Hepburn’s lower back injury restricts him to, at best, only part-time work, the pecuniary disadvantage to him is so great that I consider his loss of earning capacity can be described as very considerable.
175 As Mr Hepburn has satisfied me that he suffers a serious injury in respect of loss of earning capacity arising from his lower back injury, it is not necessary for me to consider separately his pain and suffering consequences.[10]
[10]Advanced Wire & Cable Pty Ltd and VWA v Abdulle [2009] VSCA 170 at [63]
176 I am satisfied that Mr Hepburn suffers a serious injury to his lower back, and that the consequences are such that he should be granted leave to commence proceedings for pain and suffering and loss of earning capacity damages.
Mr Hepburn’s right shoulder injury
177 In order to be entitled to claim common law damages, it is necessary for Mr Hepburn to satisfy me that he suffers a permanent impairment in his right shoulder, the consequences of which can be described as at least very considerable. In assessing his consequences, I must look at only those consequences arising from this shoulder injury. It is impermissible to aggregate the consequences arising from his lower back injury.
178 I note that Mr Hepburn complains of difficulty sleeping. He said that he suffers pain if he rolls onto his shoulder and that he wakes with numbness down to his fingers. I note, however, that Mr Hepburn does not state the frequency with which such incidents occur. Instead, Mr Hepburn states that he now sleeps for limited periods each night, due to his lower back pain. I therefore conclude that whilst his right shoulder injury causes some interference with his sleep, any such interference is relatively modest, and I am uncertain as to the frequency.
179 Mr Hepburn accepted that he had received an excellent outcome from his surgery. Subsequent to that surgery, Mr Hepburn has received very little treatment for his right shoulder, and there is no mention of his right shoulder injury in the most recent report of Dr Vu.
180 Mr Hepburn said that he still suffers some pain and weakness in his right shoulder, which is aggravated with repetitive movements. However, I am not satisfied that this shoulder pain is constant, and I am uncertain as to the intensity and frequency of such pain. I note that Mr Hepburn does not allege that he takes any pain medication for his right shoulder injury.
181 The ongoing impairment to Mr Hepburn was acknowledged by Dr Rowe, Dr Murphy and Mr Shannon, each of whom confirmed that he suffers ongoing physical limitations as a consequence of his shoulder injury. However, I consider such limitations to be relatively modest.
182 It is possible that Dr Vu’s reference in his certificate of capacity to Mr Hepburn being unable to reach above shoulder height is a reference to his shoulder injury, as it is difficult to understand how such an inability would arise from a lower back injury. However, even if I was to infer that this restriction is related to Mr Hepburn’s right shoulder injury, it is not something to which Mr Hepburn referred in his evidence, and there is no evidence as to how this restriction affects him in the performance of his activities of daily living, save for hanging washing on the line and changing the linen on the bed.
183 I accept that Mr Hepburn’s right shoulder injury has prevented him from kayaking, and fly fishing, however, these were leisure activities that he only performed on occasions, with no evidence of any regular frequency prior to suffering his right shoulder injury. I also note that Mr Hepburn is still able to bait fish.
184 As was noted by Justices Osborn and Kaye in Carbone v Toyota Motor Corporation Australia Limited[11]
“Whether an applicant has established the requisite ‘serious injury’, is a question of impression which is influenced by elements of fact, degree and value judgment.”[12]
[11][2017] VSCA 249
[12]Ibid at [66]
185 I am satisfied that, when considered collectively, the consequences to Mr Hepburn from his right shoulder injury can, at best, be described as marked and significant. However, in accordance with the principles outlined in Humphries & Anor v Poljak,[13] his consequences must be greater than marked and significant; they must be at least “very considerable”. For the reasons outlined above, I am not satisfied that the consequences to Mr Hepburn from his right shoulder injury can be fairly described in that way.
[13][1992] 2 VR 129
186 I therefore dismiss Mr Hepburn’s application in respect of his right shoulder injury.
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