Herbertson v VWA
[2024] VCC 249
•13 March 2024
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-02277
| TROY HERBERTSON | Plaintiff |
| V | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE K BOURKE | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 27 February 2024 | |
DATE OF JUDGMENT: | 13 March 2024 | |
CASE MAY BE CITED AS: | Herbertson v VWA | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 249 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – impairment of the lumbar spine – compensable injury – causation – pain and suffering – loss of earning capacity
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)(d)
Cases Cited:Barwon Spinners & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dordev v Cowan & Ors [2006] VSCA 254; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Altona Bus Lines v Lococo [2002] VSCA 159; Lu v Mediterranean Shoes Pty Ltd [2000] 1 VR 511; AG Staff Pty Ltd v Filipowicz [2012] VSCA 60; Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167.
Judgment:Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison KC with Mr A Dimsey | Arnold Thomas Becker |
| For the Defendant | Ms F Ryan SC with Ms M Williams | IDP Lawyers |
HER HONOUR:
Preliminary
1This is an application for leave to bring proceedings pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the Act”) in relation to an incident at work with Gold Acres Trading Pty Ltd (“the employer”) on 25 February 2019 (“the said date”).
2Leave was sought in relation to both pain and suffering and loss of earning capacity with the relevant bodily function being the lumbar spine.[1]
[1]Transcript “T”1
3The plaintiff bears an overall burden of proof upon the balance of probabilities.
4By s325(2)(b) of the Act, the impairment must have consequences in relation to pain and suffering which:
“… when judged by comparison with other cases in the range of possible impairments, or losses of a body function or disfigurement, as the case may be, fairly described [as at the date of the hearing] as being more than significant or marked, and as being at least very considerable.”
5I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
6Subsection s325(2)(h) of the Act provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
7In this application, where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
8Subsections (2)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
9Subsection (2)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
10I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak,[2] Grech v Orica Australia Pty Ltd & Anor[3] and Altona Bus Lines v Lococo[4] (“Lococo”) in reaching my conclusions.
[2] (2005) 14 VR 622
[3] (2006) 14 VR 602
[4][2002] VSCA 159
11The plaintiff’s case was that, following the February 2019 incident, he “became significantly more vulnerable, which manifested itself in all the various events that occurred as a result of that greatly increased vulnerability.”[5]
[5]T4; Lococo
12The plaintiff swore two affidavits and was cross-examined. He also relied on an affidavit sworn by Jacob Cottier on 31 January 2024, Janee Herbertson sworn 31 January 2024 and Kayne Woods sworn 1 February 2024. Also in evidence were medical reports and other material. I have read all the tendered material.
The plaintiff’s evidence
Background
13The plaintiff is presently aged forty-five, having been born in June 1978. He is married with two children. He is currently in receipt of weekly payments in relation to an injury suffered in November 2020.
14Since leaving school halfway through Year 8, the plaintiff obtained a variety of licences. His work since then has involved regular physical activity.
15In early 2017, through a labour hire arrangement, he started work for the employer, a manufacturer and supplier of spray equipment to farmers. In about September that year, he changed over to working as a fulltime direct employee, working some overtime.
16In July 2017, he was hit on the back by a falling tree and attended Ballarat Health Emergency for treatment and painkilling medication. Groin, lower back and right flank pain was short-lived.
17On about 9 November 2018, he fell backwards onto his coccyx. He attended Emergency for care that day and had short-lived symptoms.
18The plaintiff’s affidavit evidence relating to the February 2019 incident and its sequalae was quite brief. During cross examination, it became apparent he had later suffered significant spinal injuries on 23 November 2020 and 31 March 2021.
The incident- affidavit evidence
19On the said date, the plaintiff was working as a labourer at the employer’s premises in Mitchell Park. In order to work on a truck cabin, he was standing on a trestle table so he could work at an appropriate height. The table had foldable legs attached to which were steps – like rungs of a ladder. When getting down from the table, he slipped off a step and landed heavily on his feet and jarred his back (“the February 2019 incident”).
20Later that day, he attended the Emergency Department at the St John of God Hospital in Ballarat (“St John of God”). He was checked over and was the subject of a CT scan of his lumbar spine.[6]
[6]The plaintiff now disputes he had a CT scan.
21On 25 February 2019, the plaintiff completed a worker’s claim form.
22He went back to St John of God Emergency on 28 February 2019, had a few days off work, though he continued to suffer from spinal symptoms.
23He aggravated those symptoms when working with a fuse box at work on 14 March 2019 and twisted his lower back. He experienced pain in that area, radiating leg pain particularly in the left leg.
24He attended St John of God Emergency again on 14 March, where he had an x-ray of his thoracic and lumbar spine, having told the Hospital representative about the February incident.
25The following day, he attended his general practitioner at UFS in Ballarat. He attended again on 28 March 2019 with ongoing back and radiating leg pain.
26On 12 April 2019, he went back to UFS and got a medical clearance to assist in a change to less demanding work. He continued to get intermittent spinal pain and radiating leg pain but found it more manageable as his work was now lighter in nature.
27In about 2020, while not at work for the employer, he started working with his daughter’s boyfriend to build a lawnmowing business. He did not make any money from this work.
28On 10 August 2020, the plaintiff went back to UFS with low back pain and radiating leg pain and was referred for a CT scan.
29Later that month, his son karate chopped his back which aggravated it and he suffered more radiating left leg pain. On 31 August, the plaintiff had a lower back x-ray at Ballarat Health Service.
30In the early hours of 15 September 2020, he woke with mid-back pain and then fell over, causing him spinal and radiating left leg pain. He attended Ballarat Health Emergency Department and had a Lignocaine injection into the muscle along his thoracic spine.
31On 12 October 2020, he had a low speed motorbike accident, following which he suffered low back pain inter alia and sought guidance from Ballarat Health Service Emergency that day.
32On 16 November 2020, he attended UFS with acute low back pain which had been bad for two days.
33On 23 November 2020, he had been using a socket ratchet and extension bar to tighten a three-inch ball valve of a plastic sprayer tank when he felt immediate low back and left leg pain (“the November 2020 incident”). That day, he attended St John of God Emergency where he had a lumbar MRI. Later that month, he completed another worker’s claim relating to that incident.
34The plaintiff continued to see UFS for medication and guidance. He was referred for physiotherapy in late 2020 and early the following year, he started going to MC Physiotherapy. He continued seeing UFS for treatment of his back pain and radiating leg pain, which was at times bilateral.
35On 28 February 2021, he returned to Ballarat Health Service Emergency with low back and bilateral leg pain.
36On 4 March 2021, he started to see Dr Vila at UFS as Dr Lewis had retired.
37The plaintiff had had periods of time off work due to spinal pain and also times with restricted duties where his work was not as laborious.
38On 18 March 2021, he was referred to orthopaedic surgeon, Mr de la Harpe.
39On about 31 March 2021, the plaintiff was sitting on the ground cutting out an agitator hole in a tank and felt thoracic pain (“the March 2021 incident”).
40Dr Vila arranged a thoracic CT scan, which was carried out on 9 April. The plaintiff had further MRIs of his thoracic spine on 29 April and 15 May.
41On 16 July 2021, he saw Mr de la Harpe, who advised that he did not think thoracic spire surgery was indicated. In December of that year, he was referred to pain specialists, Dr Tippur or Dr Dhanapaia. He was also referred to a psychologist, Virginia O’Loughlin.
42On 24 March 2022, the plaintiff had a right sided medial branch block of facet joints L4-5 and L5-SI and a caudal epidural injection performed by Dr Tippur.
43Dr Vila arranged whole body bone scan with SPECT, which was performed on 29 June 2022.
44Further investigations were undertaken. Current medication then included Palexia, Nupentin, and Panadol.
45On many occasions, the plaintiff had aggravated his spinal symptoms since the said date. He also aggravated this condition doing things such as moving house in February 2020.
46As he worked in physical jobs, it was not uncommon for him to strain, sprain or cut/crush some part of his body. He would get over those issues quickly.
47His spine had never been the same since he hurt it in February 2019. It did improve initially but the symptoms in both thoracic and lumbar spine with radiating pain never went away.[7] He did not mean in the sense that there was no time when he was pain-free, more that he had both intermittently and regularly suffered these problems ever since.
[7]The thoracic pain came on in late March 2021.
48He no longer suffered from radiating leg pain with some improvement of those symptoms with the right sided medial branch block of facet joints L4-5 and L5-S1, and a caudal epidural injection performed by Dr Tippur.
49The majority of the plaintiff’s pain was in the central part of his lower back, generally a dull ache that never went away and could intensify with activity or cause his spine to spasm. Some strenuous activity could result in suffering more thoracic spinal pain. He had to take a break after doing something strenuous.
50The spinal problems limited his ability to walk, gave him difficulty with sustained postures and bending and twisting.
51Before February 2019, he enjoyed basic camping but had needed to buy a caravan since that time, as it was more comfortable for him.
52He returned to motorbike riding after February 2019, but not as regularly as before. He sold his two motorbikes – one to finance the caravan, and also because he could not justify keeping it when he was not riding that much.
53His spinal injuries from February 2019 had negatively affected what he did around the house, limiting his ability to do gardening and having to cease working in the lawnmowing business.
54Pre-February 2019, he helped with cooking and jobs around the house but now he did not do much at all.
55His sleep was not the same quality and quantity as it was prior to February 2019. His sexual life had been impacted negatively. He had a general low mood caused by spinal problems and their consequences. He was not as social as he used to be.
56His work experience had primarily been physical in nature, so he did not know what work he could do regularly with his spinal problems.
57In his supplementary affidavit sworn 1 February 2024, he confirmed he currently takes Palexia and Panadol. He continues to do hydrotherapy and home exercises. He still suffers from spinal pain which varies in intensity and location. He has not returned to any work. The consequences earlier deposed to remain.
Cross examination
58The plaintiff could not remember having had a CT scan at St John of God Emergency on 25 February 2019.[8] He knew he had an x‑ray because his GP told him he had no fractures in the x‑ray. When later taken to the St John of God summary which set out that he had had a CT of the thoracolumbar spine, he “was still saying no, it was an x‑ray; he knows what an x‑ray is.”[9]
[8]T13‑14
[9]T18
59Having been shown an Emergency Department note from St John of God dated 14 August 2019, which set out under “Management Plan” “plain x-rays” and “CT recent compared to plain films, no acute pathology” – he “still was going to say no, (he) had not had a CT scan.”[10]
[10]T34
60When seen at St John of God on 14 March 2019, the plaintiff reported that he had had an episode at work when he was lifting a heavy fuse box and twisted his back, with suddenly worsening lower back pain which was radiating to his knees, and there was weakness of the legs. He could remember that lifting incident but he could not really remember that chain of events.[11]
[11]T15
61The plaintiff confirmed as his gp noted on 28 March 2019 – “back pain continues to improve,” and he was comfortable doing light duties at present.[12]
[12]T16
62On a WorkCover review on 12 April 2019, the gp noted back pain “has all settled. No more pains, not on any medication anymore”. The plaintiff remembered that. He agreed work was going well and he had been transferred to a less physically demanding position. He had been moved “in electrical, doing the cabs, into doing tanks which is just pretty much cutting all out all the holes and installing all the stuff into the tank” which was not as onerous on his back. He had told the gp he was happy to get back to usual work and he was cleared at that time. He was not then on any medication for his back.[13]
[13]T16
63The plaintiff agreed he did not see his gp about his back from April 2019 to August 2020. He thought he actually went straight to the hospital a few times because he had to wait up to two weeks to see his gp.[14]
[14]T17
64The plaintiff agreed he was not given any prescription pain relief from his GP from April 2019 to August 2020. He was working full-time at that stage, working in tanks.[15]
[15]T19
65On 10 August 2020, Dr Lewis noted the plaintiff presented with low back pain – “He worked at Goldacres making tanks. He did not do heavy lifting, used an orbital sander and drill, but also has his own business mowing lawns with his daughter‘s boyfriend and had been working “non-stop”.[16]
[16]T20
66The lawnmowing business had just started up in about August 2020. The plaintiff was mowing lawns with family members.[17] He had not been working “non-stop”. He was doing up to three lawns on the weekends, each job for an hour or so depending on the size of the property. He does not like gardening and was just a lawn mower man.[18]
[17]T19
[18]T20
67The plaintiff had another incident at work in November 2020 with a ratchet. He put in a WorkCover claim. He was then working fulltime on tanks. He had so much pain then he was taken to hospital by a co-worker and later saw Mr de la Harpe, an orthopaedic surgeon. “They” made a mistake and did not look at his lumbar spine and “ended just doing (his) thoracic then”. The thoracic injury came later, after April 2021.[19]
[19]T20
68The plaintiff was tightening a three-inch bore valve. When he pulled back on the ratchet, and leaned back with his body, he heard a pop in his back. He developed severe low back pain radiating to both legs. He could barely move and he was in a lot of pain. He could barely lean forward at all.[20]
[20]T22
69He had about four months off work after that incident and was in so much pain he was started on Lyrica and maybe Palexia. He had been taking Nurofen and Panadeine, but they had not helped much at all.[21]
[21]T22
70When seen by Dr Lewis on 8 January 2021, he was still in a fair bit of pain and had been prescribed Targin and Endone and was still off work.[22] Then things got bad enough on 28 February that he had to go to Ballarat Base Emergency where it was recorded he presented with increased low back pain radiating to the back of both legs. The history noted was L4‑5 injury on 23 November 2020. His back was flaring up from November the previous year.[23]
[22]T22
[23]T23
71Dr Vila took over the plaintiff’s care from Dr Lewis in March 2021 and still remains the plaintiff’s GP at Ballarat Group Practice.[24]
[24]T23
72The plaintiff agreed the next big incident was in April 2021 when he was back at work. He was not really on light duties. He was nearly back to full duties, full hours.[25]
[25]T24
73When seen on 1 April 2021, Dr Vila noted:
“Work-related injury review. L4/5 vertebral injury sustained at work on 23 November 2020. On Lyrica, however re-injured his back yesterday, Wednesday 31 March 2021. Was sitting on ground putting pressure on drill that cuts the inside of the tank. Was doing this for two minutes, then got a sudden sharp pain in the centre of his lower back.”[26]
[26]T24
74The plaintiff went back to Dr Vila on 8 April, who then noted the history of the agitator incident, with pain in the thoracic region piercing straight through to the front mid-sternum. The pain was in a different area to the November 2020 incident. He was pulling back on the hole saw cutter and felt as though he had been kicked in the back. He had acute pain in his thoracic spine between the shoulders which pierced around to the front.[27] He was sent for a CT scan and diagnosed with disc herniation. It was the first time he had had that pain in his back higher up between his shoulder blades.[28]
[27]T24
[28]T25
75The plaintiff agreed that incident set him back a fair bit and he was now unable to attend work, even on modified duties. As his gp told Mr de la Harpe, he was waking up in the morning feeling like he had a bar piercing through his back and out his chest at the front. He would wake up “literally grabbing like there was something coming out of (his) chest every morning”.[29]
[29]T26
76He saw Mr de la Harpe on 16 July 2021 in relation to the late March 2021 episode. He was still off work at that time and still is because of that pain. He was then even having trouble taking deep breaths because there was a lot of pain in that area. He told Mr de la Harpe he had never had problems there before but he had had problems in his lumbar spine.[30]
[30]T26
77He agreed when examined by Dr Menz in July 2021 he told him about the 23 November 2020 incident and a partial return to light duties in February 2021. He had had severe low back and leg pain from the November 2020 incident.
78He also agreed as Dr Menz recorded, he continued doing his normal work duties after that. However, he sustained a second injury to his thoracic spine in April 2021. At that time, he was pretty much back to fulltime duties except he was no longer able to do the three-inch ball valve. That was the one task he was not able to do because the ball joint probably weighed about ten to fifteen kilograms.[31]
[31]T28
79He agreed he told Dr Menz about the November 2020 and April 2021 incidents because in his mind they caused his back problems.[32]
[32]T29
80The plaintiff mentioned the November 2020 and April 2021 incidents to Dr van Ammers when seen in October 2022 and Dr Slon on examination in January 2023, because he attributed his back problems to those incidents.[33]
[33]T29-30
81In the claim form completed by him after the November 2020 ratchet incident, the plaintiff described that incident causing injury to his lower back with a lumbar disc prolapse.[34] In that form, he was asked “have you previously had another injury or condition that relates to this injury or condition?” and he said “No”. His explanation was he thought the form had to be just filled out for that incident and what he had done to himself.[35]
[34]T31
[35]T32
82In re-examination, the plaintiff described his duties at various times with the employer. To start off, his normal work was in electrical for cabins. He did all the electrical componentry for cabins and then had his first back incident, and then they moved him into tanks because they did not want him to hurt himself again. That was after the fall off the trestle. After that and before November 2020, his back was not too bad, but he “had had pains that come and go”.[36]
[36]T35
Lay evidence
83Jacob Cottier swore an affidavit on 31 January 2024. He is the plaintiff’s daughter’s boyfriend. He confirmed the difficulties the plaintiff had assisting in his lawnmowing business due to back pain.
84The plaintiff’s wife Janee swore an affidavit on 31 January 2024. She described the plaintiff’s active life before his “lower back injury” and the significant problems he has since faced since in their relationship, family and domestic life, gardening and recreational activities.
85Kayne Woods, the plaintiff’s friend and former co worker, swore an affidavit on 1 February 2024 in which he described the plaintiff’s active and social lifestyle “before his injury” and the significant changes thereafter.
Treaters
Dr Charles Lewis
86Dr Lewis reported in December 2020. He had first seen the plaintiff at UFS on 30 November 2020 for the relevant condition (the 23 November 2020 injury), the plaintiff having been a patient since 12 February 2019.
87Dr Lewis noted that on 25 February 2019, the plaintiff developed low back pain after slipping on a step at work and landing on his feet. He returned to work three days later, taking oral analgesia.
88On 15 March 2019, the plaintiff presented with low back pain after lifting a fuse box at work. Initially, the pain radiated to both knees and there was leg weakness. These latter symptoms settled and he presented with low back pain. The low back pain resolved by 12 April 2019.
89On 10 August 2020, the plaintiff presented with low back pain which initially radiated down both legs and into the right testicle, but the leg and testicular pain had resolved by the time of presentation. He was given a certificate for two days off.
90On 15 September 2020, the plaintiff presented to Ballarat Base Hospital Emergency Department with low back pain. He presented again with low back pain on 16 November 2020. On that occasion, there had been no radiation of pain to the leg. He was again given a certificate for two days off work.
91There was no record of whether this pain had completely resolved or not by the time of the plaintiff’s latter presentation on 30 November 2020. The plaintiff had used a large spanner at work and this set off his back and leg pain. The plaintiff was requiring Endone and was unfit for work, having been reviewed by Dr Dover, who also certified him as unfit.
92Based on the history, Dr Lewis noted that the plaintiff was prone to episodes of low back pain which flared from time to time and then settled.
Dr Karen Vila
93Dr Vila took over the plaintiff’s care in March 2021 when Dr Lewis retired.
94Dr Vila referred the plaintiff to Mr de la Harpe on 18 March 2021 with an L4-5 vertebral injury sustained at work on 23 November 2020.
95In a letter to Mr de la Harpe on 15 April 2021, she advised that the plaintiff had developed acute pain in his upper thoracic spine piercing through to the front which had occurred on 2 April 2021, when he strained his back cutting out an agitator hole. He felt severe pain as if he had been kicked in the back.
96In a letter to Nabenet in November 2021, Dr Vila diagnosed L4-5 vertebral injury sustained at work on 23 November 2020, and T3-4 focal left paracentral disc herniation resulting in central canal stenosis with possible left hemicord and left T4 ventral root impingement sustained at work on 2 April 2021.
97Dr Vila referred the plaintiff to pain management specialists, Dr Dhanapaia and Dr Tippur, in December 2021 for those two conditions.
98In a number of reports, Dr Vila advised that the plaintiff had suffered an L4-5 vertebral injury at work on 23 November 2020, when tightening a three-inch ball valve. He was using a large ratchet and socket and pulled back on the ratchet and heard a pop in his back.
99She also noted that the plaintiff had suffered acute pain in his upper thoracic spine with radiculopathy (pain piercing through to his front), which occurred on 2 April 2021. He had strained his back cutting an agitator hole at work. While he was pulling back on the hole saw cutter, he felt severe pain as if he had been kicked in the back.
100The plaintiff was taking Lyrica and Palexia for breakthrough pain and required input from a neurosurgeon back specialist, Mr de la Harpe, and physiotherapy and pain management.
101The plaintiff initially commenced on a graduated return to work program with lifting and cutting restrictions, and after the thoracic injury “nil boom fit-outs or assembly”.
102The plaintiff had also suffered severe work-related stress and anxiety secondary to workplace bullying.
Investigations
103There was no report of a lumbar CT scan at St John of God on 25 February 2019 but there was reference in a number of Hospital documents to a lumbar CT scan having taken place, but date thereof not specified.
104On 4 March 2019, the plaintiff had an x-ray of his thoracic and lumbar spine at St John of God.
105It was reported there was no thoracic or lumbar vertebral fracture. There was degeneration in the thoracic and lumbar spine with osteophytic spurring. Mild disc space reduction at T12-L1 and L5-S1 levels. No pars defect or spondylolisthesis. Mild to moderate bilateral L5-S1 and L4-5 facet arthrosis.
106There was a lumbar x-ray on 31 August 2020. It was reported there was mild spondylosis of the lumbar spine. In the appropriate clinical setting, CT or MRI can be considered for further assessment.
107There was a lumbar MRI in November 2020. It was reported there was stable small posterocentral protrusion at L5-S1 and right lateralised disc bulge at L4-5. Mild grade bilateral L4-5 and L5-S1 facet arthrosis.
108There was a thoracic CT in April 2021. It was reported there were findings suggestive of a left paracentral disc herniation at T3-4. If clinically appropriate, MRI will confirm or repute and assess for neural impingement.
109Mr de la Harpe organised an MRI of the thoracic spine in May 2021. It was reported there was degenerative change at the thoracic spine with disc protrusions at T3-4, T4-5 and T6-7 gently contacting the anterior cord. There was no significant exiting foraminal stenosis.
110The plaintiff underwent a caudal epidural injection on 24 March 2022, and also a right sided medial branch block of facet joints L5-S1, L4-5.
111In June 2022, the plaintiff had a whole body scan with SPECT. It was reported there was no scintigraphic evidence of active lumbar facet joint arthropathy.
Medico-legal
Dr Joseph Slesenger, occupational physician
112Dr Slesenger examined the plaintiff on behalf of the insurer in December 2020 in relation to the November 2020 incident. The plaintiff had then been off work for three weeks.
113The plaintiff advised he was injured during the course of his employment with an initial injury two years ago going down a flight of stairs when he fell on his lower back. He did not seek medical help, although he appeared to have attended Ballarat Base Hospital periodically over the last two years. He was off work for about two weeks and advised that subsequently, he suffered a chronic lower back pain with periodic exacerbation.
114The plaintiff advised he had periodic time away from work of up to ten days at a time but, nevertheless, continued to perform pre-injury duties working pre-injury hours.
115There was a further exacerbation in November 2020 whilst manoeuvring a valve at the base of a tank. The plaintiff attended St John of God with low back pain radiating to his left leg and had an MRI.
116He was satisfied that there was evidence of degenerative disease of the lumbar spine and left leg based on the history, the examination and documentation provided, but no confirmed evidence of radiculopathy.
117It was difficult to answer what had caused the plaintiff’s injury or medical condition. He was unable to advise as to contribution of the plaintiff’s employment to his current condition as the documentation provided appeared at variance with the narrative.
Dr Anthony Menz, orthopaedic surgeon
118Dr Menz examined the plaintiff on behalf of the insurer in July 2021, the date of injury being 23 November 2020.
119The history was that the plaintiff hurt his back on that date, bending down to screw a large ball valve and felt a popping sensation in his back.
120Low back pain gradually improved but the plaintiff continued to complain of radiation to his right leg and made a partial return to work on light duties on 15 February 2021. He continued doing his normal work duties thereafter. However, he sustained a second injury to his thoracic spine in April 2021, and had ceased work and not returned.
121In terms of past history, the plaintiff had injured his back in 2018 working for the employer, and most of his symptoms settled within two or three weeks and he returned to full work duties until the November 2020 incident.
122On examination, the plaintiff was complaining of sharp mid to upper thoracic pain, which was precipitated by the April 2021 accident. The lumbar spine pain had continued over the previous eight months.
123Dr Menz then thought the plaintiff had no work capacity. The source of his pain was the disc degeneration in his lumbar and thoracic spine.
Associate Professor Bruce Love, orthopaedic surgeon
124Associate Professor Love examined the plaintiff in October 2022, in relation to the 25 February 2019, 23 November 2020 and 2 April 2021 incidents.
125The plaintiff told him of the trestle table incident in February 2019, after which he experienced severe back pain, was taken to hospital, and x-rays did not reveal any fracture. He was out of work at the time before returning to full duties.
126There was a second incident with the karate chop.
127On another occasion, while pulling a spanner on a ball valve on 23 November 2020, the plaintiff developed severe right buttock pain. The symptoms remained with him and he was out of work for six months before returning to alternate duties.
128There was a further work incident on 2 April 2021, when using an electric hole cutter on a tank, the plaintiff developed sudden pain in his upper spine. He then attempted to return to work with a light duties certificate but this was rejected by the employer.
129The diagnosis was multilevel degenerative disease of the lumbar spine. Many of the work-related incidents would have aggravated these conditions, particularly February 2019 and November 2020.
130The plaintiff was precluded in relation to any employment in any physically demanding tasks and would be capable of only the lightest temporary work.
131On re-examination on 6 December 2023, the date of accident was noted to be 25 February 2019. There was no acknowledgement in that report that he had earlier seen the plaintiff in relation to the three incidents.
132There was a history of the trestle incident. The plaintiff was able to remain working for some three years, stating that initially following the fall, he had a two-week period of absence from work and then returned to fulltime duties. With persistent back pain that developed over time, he was given alternative duties but had a further injury while lifting at work and had a six-month period of absence.
133The plaintiff did return to full duties although began to experience thoracic spine pain, and in March 2022, he was advised there were no suitable duties available and he had not worked since.
134The diagnosis was severely compromised by the absence of contemporary radiology in terms of the February 2019 incident.
135Based on the history, it could be accepted the plaintiff’s symptoms were significantly contributed to by the February 2019 incident.
136He was subsequently provided with an MRI, the date of which is uncertain (he was provided with two MRIs – 23 January 2020 and 15 May 2021). He noted the MRI revealed significant desiccation of the L5-S1 disc with disc protrusion at that level and lesser changes at L4-5. There was also a loss of disc height at T12, L1 and L2.
137In his view, those observations could be considered the causation of symptoms and had been rendered symptomatic in relation to the employment injury.
Associate Professor Bittar, neurosurgeon
138Associate Professor Bittar examined the plaintiff in October 2023.
139The history of present complaint was that the plaintiff sustained an injury in February 2019 involving a trestle table. He experienced an immediate onset of pain in the thoracic and lumbar spine, together with pain radiating down his right leg. That pain had since resolved. However, thoracic and lumbar pain had persisted.
140The plaintiff attended the St John of God Emergency and had a CT of the thoracic and lumbar spine, which did not demonstrate any fractures. He was discharged on analgesia and represented several days later. He returned to work after several days. However, his back and, at that time, leg pain, persisted.
141The plaintiff re-presented to Emergency on 14 March 2019 and had x-rays of his thoracic and lumbar spine. He was again discharged home.
142Initial treatment was coordinated by the plaintiff’s general practitioner and, in April 2019, the plaintiff obtained clearance to assist changing his work to a less demanding role. He continued to experience back pain. However, this was manageable due to the change in the heaviness of work-related activities.
143The plaintiff had multiple flare-ups of back pain and leg pain throughout 2020 and 2021 and re-presented at the hospital on some of those occasions.
144The plaintiff was referred to Mr de la Harpe, whom he saw in July 2021 for his thoracic pain. He had pain management treatment in relation to thoracic and lower back pain.
145The 2020 and 2021 investigation reports were available. The diagnosis was aggravation of lumbar and thoracic spondylosis.
146The plaintiff’s employment had been a significant contributing factor. Specifically, the February 2019 injury remained a significant contributing factor to the plaintiff’s ongoing pain disability and requirement for treatment.
147The plaintiff’s thoracic and lumbar spine conditions were materially contributed by the nature of his employment, particularly in February 2019.
Dr Edmund Van Ammers, psychiatrist
148The plaintiff was seen by Dr Van Ammers in October 2022.
149While there is no psychiatric impairment application, matters of history were relevant for the purposes of the present case.
150The plaintiff told him he was employed as an assembler starting fulltime in 2018. After injury to his lumbar spine in November 2020, he had some months off work and returned to light duties, then building up to almost fulltime hours and pre-injury duties.
151In April 2021, the plaintiff had another injury affecting his thoracic spine. He was off work for six months, then did light duties for eight months, but then was told there was no work and he was subsequently terminated in March 2022.
Defendant’s evidence
152Dr Dean from St John of God Hospital wrote to Dr Lewis on 25 February 2019-
“Lumbar pain. Slipped off a 0.5m step. Landed on feet. CT lumbar spine NORMAL. … soft tissue injury review.”
153A St John of God Emergency note on 25 February 2019 referred a CT of the thoracolumbar region.
154An ED Medical Summary of 14 March 2019 noted “Fell from height – 0.15 metres onto feet. Lifting heavy fuse box and twisted at work today”. Under “Management Plan”, it was noted “CT recent compared to plain films. No acute pathology”.
155In the Ballarat Health Service and Emergency Discharge Summary of 28 February 2021, the presenting complaint – “Presents with increased lower back pain radiating to back of both legs. History L4-5 injury 23 November 2020”. Under “Summary of Treatment” it was noted “States it’s a flaring from three months of back pain”.
156Dr Vila wrote to Mr de la Harpe in March 2021 in relation to the plaintiff’s L4-5 vertebral injury sustained at work on 23 November 2020.
157Mr de la Harpe wrote to Dr Vila in July 2021, thanking her for the referral, noting the thoracic spine injury.
158Dr Dhanapaia wrote to Dr Vila in January 2022, thanking her for the referral for an opinion and management regarding the plaintiff’s lower lumbar back pain. He noted the plaintiff had issues with his thoracic back pain and lower back pain for almost a year now.
Medico-legal evidence
Dr Philip Mutton, occupational physician
159Dr Mutton examined the plaintiff on 8 December 2022 in relation to the 23 November 2020 injury.
160The occupational history set out that following that injury, the plaintiff went back to work in tanks and ultimately ceased work in December 2021.
161The plaintiff had an injury in 2019 in which he suffered low back pain and right sciatica followed by left sided sciatica. It lasted a few weeks. He was treated conservatively. He never fully settled. He was on some lighter duties and eventually moved to tanks in 2019.
162In November 2020, the plaintiff was on fulltime hours working in tanks. He was tightening up a ball valve with a large socket with a one-millimetre-long handle. He was sitting and pulling towards himself when he felt a popping sensation in the lower back.
163A CT scan identified bulging discs. The plaintiff was off work for three to four months. He went on a return to work program and got back to fulltime on tanks but remained on restricted duties until April 2021.
164In April 2021, there was a further incident when the plaintiff was drilling an agitator hole with a three-inch hole saw when he suffered interscapular pain or thoracic pain for the first time. He was off work for six months. He returned in the paint section doing sanding and sealing and using a caulking gun. He got up to fulltime by the end of 2021 but his employment was terminated.
165In his “discussion,” Dr Mutton made no mention of the February 2019 incident, noting the history provided by the plaintiff of a number of injuries, including an injury on 23 November 20 and subsequently in 2021 to the thoracic spine.
166He thought the plaintiff could not return to unrestricted pre-injury duties and hours due to the known pathologies in the thoracic and lower spine.
Dr Barry Slon, pain medicine specialist
167Dr Slon examined the plaintiff in January 2023 in relation to the November 2020 incident.
168Following that incident, the plaintiff stayed off work for about three months and returned in a graded fashion to the same job and seemed to achieve a good return to work.
169However, sometime in 2021, he acquired a similar injury to the thoracic spine. Yet again, he returned to work in a graded fashion, this time doing lighter duties but worked himself up to at least forty hours a week until, ultimately, the employer decided he was not able to perform to their specification and his job was terminated in March 2022.
170Overall, his impression was of a man who had a degenerative spine condition which had been exacerbated or aggravated by his work. The plaintiff was not able to return to pre-injury duties and also unable to return to pre-injury hours and could only do highly modified sedentary work.
Overview
171There is no dispute the plaintiff injured his lower back in the February 2019 incident, the subject of this application. However, he has suffered further spinal injuries in a number of subsequent incidents. Significantly, he is presently in receipt of weekly payments in relation to a lumbar injury suffered on 23 November 2020.
172There was no an attack on the plaintiff’s credit. I found him to be very honest and candid.[37] Counsel for the defendant did not take issue with this view, submitting that the situation was one where the plaintiff had just got confused about the incidents.[38]
[37]T49
[38]T39
173In cross examination, the plaintiff was very candid as to the impact all incidents in which he has suffered injury at work with the employer have had on his life. He attributes his ongoing spinal problems to the November 2020 and late March 2021 incidents. He continues to receive weekly payments for his November 2020 injury following which his back has never been the same.[39]
[39]T30
174The plaintiff’s evidence is not that he has had significant ongoing lumbar pain after the February 2019 incident nor that he has been on significantly lighter duties since that time.
175He deposed that post April 2019, he had intermittent spinal pain and radiating leg pain but found it more manageable as work was lighter. He had periods off work due to spinal pain and also times with restricted duties where work was not as laborious.
176The plaintiff worked full time in tanks after being cleared by Dr Lewis in April 2019 until August 2020. He did not attend his gp in that period nor was he given painkilling medication. While he thought he may have had hospital attendances during that period, there is no record of any such attendances.
177Post August 2020 and pre November 2020, the plaintiff deposed to having had a number of issues with his lumbar spine, not all of which were work related.
178As the plaintiff explained in re-examination, after the February 2019 incident and before November 2020, his back was not too bad, but he “had had pains that come and go”.[40]
[40]T35
Legal principles
179For leave to be granted to bring proceedings for damages in relation to the February 2019 incident, the plaintiff must not only identify the injury caused in that incident but, also what, if any, consequences flow from that incident as opposed to later injuries and that those incident consequences are serious.[41]
[41]Peak Engineering Pty Ltd & Anor v McKenzie [2014] VSCA 67; AG Staff Pty Ltd v Filipowicz [2012] VSCA 60.
180The plaintiff must therefore establish that the consequences of the February 2019 incident are serious and permanent as at date of hearing – excluding the consequences of any subsequent incidents, in particular November 2020 and late March 2021.
181Counsel for the plaintiff relied on the decision in Lococo where the Court of Appeal upheld the trial judge’s finding granting leave when the compensable injury – the first of two incidents – was found to be the initiating one.[42]
[42]T5
182In Lococo, the Court of Appeal accepted leave could be granted for an earlier injury in time in one of two ways. First, there was medical opinion to the effect that the subsequent injuries would not have occurred but for the earlier event. Alternatively, the additional effects which became manifest in those subsequent events were consequences of the earlier event.[43]
[43]Lococo at [12]
183Counsel for the plaintiff submitted the Court had to be satisfied on the balance of probabilities that the February 2019 incident made a significant contribution so as to enable that contribution to be regarded as serious in the relevant sense.[44] It was submitted that Lococo did not require the “completely distinctive analysis” that the defendant contended.[45]
[44]T48; Lococo at [6]
[45]T48
184Counsel for the defendant submitted that the plaintiff cannot succeed on either basis the Court described in Lococo. In the present application, there is just simply no medical opinion which would enable the Court to make the requisite findings.[46]
[46]T12
185It was submitted the present case is more stark than other cases “where a plaintiff might have flare-ups due to lifting something at work, because in this case there is a myriad of medical opinion to the effect that the plaintiff suffered a frank injury to his lumbar spine in November 2020 and a separate injury to the thoracic in April 2021.”[47]
[47]T39
The medical evidence
186As counsel for the plaintiff conceded, “the medicos are, to some extent, ships in the night in that some of them completely ignore the relevant injury.”[48]
[48]T2
187While this application is not trial by doctor[49], in my view there is no medical support for either proposition to assist the plaintiff in a Lococo argument.[50]
[49]Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167 at [17]
[50]T49
General practitioners
188Neither treating general practitioner addressed the relevant issues in this application.
189Dr Lewis was the plaintiff’s gp as at February 2019 until his retirement in March 2021.
190Having first seen the plaintiff on 15 March 2019, after a “flare up” in February 2019, by 12 April 2019, he thought the plaintiff’s back condition had resolved. He then cleared the plaintiff for his usual duties. Having last seen the plaintiff after the November 2020 incident when he was requiring Endone and unfit for work, he noted based on the history, the plaintiff was prone to episodes of low back pain which flared from time to time and then settled.
191Dr Vila first saw the plaintiff in March 2021 and he remains under her care.
192In her correspondence, referral letters and reports, she focussed on the two incidents – lumbar spine in November 2020 and thoracic spine in 2021. She made no mention at all of the February 2019 incident, therefore did not comment on its contribution, if any, to the plaintiff’s current condition.[51]
[51]T41
Medico legal
193The medio legal evidence is also of limited assistance to the plaintiff’s case.
194Counsel for the plaintiff relied on Mr de la Harpe’s December 2023 opinion. Having noted the plaintiff was complaining of intermittent back pain following from February 2019, he diagnosed the injury caused by February 2019 incident as aggravation of pre-existing degenerative change causing degeneration and mechanical back pain without radiculopathy.[52]
[52]T49
195However, that diagnosis in isolation does not assist the plaintiff in this application. As counsel for the defendant submitted, it certainly does not help on a Lococo case.[53]
[53]T43
196Further, that opinion does not help in identifying what consequences flow from the February 2019 incident as opposed to the November 2020 incident which on the plaintiff’s own evidence was a much more significant incident, one when he felt his back pop and he could barely move, and then had 4 months off work.[54]
[54]T22
197A number of the plaintiff’s histories do not mention the February 2019 incident. The plaintiff told Dr Menz about the November 2020 and April 2021 incidents only, because in his mind they caused his back problems.[55] He gave similar histories to psychiatrist Dr Van Ammers (October 2022) and Dr Slon (January 2023) for this very reason. He made no mention of the February 2019 incident to any of these examiners.
[55]T29
198Mr Love’s opinion does not advance the plaintiff’s case. On re-examination, when he only considered the February 2019 incident, noting the absence of the contemporary radiology, he “could” accept that the plaintiff’s symptoms were significantly contributed to by the incident. However, this view does not take into account the later significant injuries and the role they play in the plaintiff’s current presentation or the fact of his earlier examination when he was asked to also consider these incidents.
199Mr Bittar’s opinion is somewhat simplistic and fails to address the issues before the Court. Without any path of reasoning, he concluded the plaintiff’s thoracic and lumbar spine conditions were materially contributed by the nature of his employment, particularly in February 2019.[56] He made no mention of the gp recording a recovery in April 2019. His only analysis of the other relevant later incidents was simply noting the plaintiff had multiple flare-ups of back pain and leg pain throughout 2020 and 2021 and re-presented at the hospital on some of those occasions.
[56]The plaintiff makes no complaint of thoracic pain before late March 2021
200As counsel for the plaintiff ultimately conceded, Professor Bittar did not undertake the requisite injury by injury analysis.[57]
[57]T7
201Dr Slesenger made no mention of the February 2019 incident in his report. As counsel for the defendant submitted, that was really the fatal difficulty for the plaintiff’s case because he comes to the Court on affidavit, seeking leave for the February 2019 incident, but as Dr Slesenger puts it, “that narrative is just entirely discordant with the medical material before the Court which clearly pins it on November 2020 and April 2021”.[58]
[58]T46
202Finally, whether or not the plaintiff had a normal lumbar CT scan on his attendance at St John of God in February 2019 makes little difference to my analysis of the medical opinion. Confirmation of a normal lumbar CT scan at that time would only further weaken the plaintiff’s case.[59]
[59]T39
Work consequences
203Counsel for the plaintiff submitted there had never been a resumption of normal unrestricted duties since the February 2019 incident. The plaintiff kept saying “well, I almost got back to fulltime duties”.[60] He was not continuing to work in the cabinet trucks because he was at more risk of injuring himself.[61]
[60]T50
[61]T51
204Counsel for the plaintiff relied on Dr Mutton’s December 2022 report in relation to the November 2020 injury. Dr Mutton then noted the plaintiff suffered injury in February 2019 and “never fully settled,” and he was on some lighter duties and was eventually moved to tanks in 2019. It was submitted that was recognition of the significance of the February 2019 incident.[62]
[62]T6
205However, it appears the plaintiff was only on light duties until 12 April 2019 when he was seen by Dr Lewis, who noted work was going well and gave a clearance certificate, with the plaintiff happy to go back to usual work having been transferred to less demanding role.
206The plaintiff then worked full time on tanks until the November 2020 incident, following which he had four months off. According to the plaintiff, his lower back had never been the same after that.[63]
[63]T30
207The plaintiff returned on light duties in February 2021, and was nearly back to full duties (although not allowed to do the three-inch ball valve) and full hours when the late March 2021 incident occurred. That put him back a fair bit and he was unable to attend work even on modified duties. He was off work for six months then did light duties for eight months and his employment was then terminated in March 2022
208In these circumstances, I am not satisfied that there are any ongoing work consequences relating to the February 2019 incident.
209Further, the lay affidavits do not assist the plaintiff’s application, because they just refer to the consequences of his “back injury”, not identifying which one.[64]
[64]T47
210In summary, there is simply no medical evidence that the subsequent spinal injuries in November 2020 and late March 2021 would not have occurred but for the February 2019 incident or that the additional effects which became manifest in those subsequent events are consequences of the February 2019 incident.[65]
[65]Lococo at [12]
211Taking into account all the evidence, I am not satisfied the February 2019 incident has resulted in consequences which are serious and permanent.
212Accordingly, the application is dismissed.
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