Johnson v Roads Corporation
[2017] VCC 400
•10 April 2017 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-16-04703
| JASON JOHNSON | Plaintiff |
| v | |
| ROADS CORPORATION | Defendant |
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JUDGE: | HIS HONOUR JUDGE WISCHUSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 and 5 April 2017 | |
DATE OF JUDGMENT: | 10 April 2017 (Revised) | |
CASE MAY BE CITED AS: | Johnson v Roads Corporation | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 400 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – aggravation of lumbar spondylosis – gradual process – due to the nature of employment – work in general – specific incidents
Legislation Cited: Accident Compensation Act 1985, s134AB, s82
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Church v Echuca Regional Health (2008) 20 VR 566; Doolan v Rayners Sawmills Pty Ltd & Anor [2008] VSCA 219; Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Halpin v Wilson Transformer Co Pty Ltd [2012] VSCA 235; Humphries & Anor v Poljak [1992] 2 VR 129; Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605; Mutual Cleaning & Maintenance Pty Ltd v Stamboulakis (2007) 15 VR 649; Sabanovic v Atco Controls Pty Ltd [2009] VSCA 143; Sabo v George Weston Foods [2009] VSCA 242; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108; State of Victoria v Rattray [2006] VSCA 145; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Petkovski v Galletti [1994] 1 VR 436; Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511; Kite v George Pattison Pty Ltd & Victorian WorkCover Authority [2008] VCC 1172; The Commonwealth v Bourne (1960) 104 CLR 32; Daniel v Victorian WorkCover Authority & Anor (Unreported, VCC, 21 November 1994); Harding v CIC Workers Compensation (Vic) Ltd & Anor (Unreported, VCC, 1 September 1995); Accident Compensation Commission v Fletcher [1990] VR 102; Accident Compensation Commission v Tilley [1992] 2 VR 499; Peak Engineering & Anor v McKenzie [2014] VSCA 67
Judgment: Leave granted to the plaintiff to bring a proceeding for the recovery of damages in respect of the compensable serious injury to his lumbar spine.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A J Saunders | Maurice Blackburn |
| For the Defendant | Mr S A Smith | Russell Kennedy |
HIS HONOUR:
1 In this proceeding, the plaintiff seeks leave to bring a proceeding for the recovery of damages in respect of a compensable injury to his lumbar spine sustained in his employment with the defendant.
2 In the end,[1] the leave sought was only in relation to the pain and suffering consequences of the injury. In order to succeed, the plaintiff bears the burden of satisfying me that the injury to his lumbar spine is, in its consequences, “at least very considerable”.[2]
[1]In the course of counsel for the plaintiff’s final address, the application in relation to the loss of earnings consequences of the injury was abandoned.
[2]The relevant principles to be applied when considering whether an injury is a “serious injury” are set out in s134AB of the Accident Compensation Act 1985 (“the Act”) and are explained in many decisions of the Court of Appeal, including – Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Church v Echuca Regional Health (2008) 20 VR 566; Doolan v Rayners Sawmills Pty Ltd & Anor [2008] VSCA 219; Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 at paragraph [47]; Halpin v Wilson Transformer Co Pty Ltd [2012] VSCA 235; Humphries & Anor v Poljak [1992] 2 VR 129; Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605; Mutual Cleaning & Maintenance Pty Ltd v Stamboulakis (2007) 15 VR 649; Sabanovic v Atco Controls Pty Ltd [2009] VSCA 143; Sabo v George Weston Foods [2009] VSCA 242; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108; State of Victoria v Rattray [2006] VSCA 145; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292, and Sutton v Laminex Group Pty Ltd (2011) 31 VR 100
3 Discussions with counsel[3] at the outset revealed that the defendant resisted the plaintiff’s application on two bases.
[3]Transcript (“T”) 8-14
4 The first of them was that however caused, the plaintiff’s back condition now was not “serious” in the required sense, principally because many of the impairments or losses of function which the plaintiff attributed to his back, were already lost or compromised by reason of his long-standing chronic obstructive airways disease.
5 The second of them, was that the plaintiff’s back condition now, arose from specific incidents of injury and so, in relation to each of them, it was necessary for the plaintiff to establish, after making the Petkovski v Galletti[4] analysis, that each incident taken alone had consequences which met the “very considerable” test.
[4][1994] 1 VR 436
6 This point was raised at the outset of the case and counsel for the plaintiff maintained that the leave sought was in respect of injuries sustained in the way set out in the Originating Motion; that is:
“… arising by way of gradual process over time due to the nature of employment[5] and/or by way of multiple insults arising out of or in the course of employment with the Defendant, the cumulative effect of the injury occurring since 20 October 1999, in accordance with Section 134AB of the Accident Compensation Act 1985.”
[5]See s82(6) of the Act. The expression “due to the nature” appears also in the opening words of s134AB
7 The evidence consisted of a single affidavit sworn by the plaintiff in June 2016. He gave evidence-in-chief, principally concerning recent work activities, and was cross-examined. The plaintiff’s treating general practitioner attended to be cross-examined upon his reports. In the usual way, the balance of the evidence consisted of medical reports, clinical records, radiological reports and pay records which were tendered by the parties from the court books.
Background
8 The plaintiff is now forty-four years of age and lives in Frankston. He is married and has six children, three of whom still live at home. He did not do well at school and left during Year 7 and has difficulty with reading and writing. He has spent his working life in manual activities as a factory hand, labourer and truck driver.
9 In 2008, he commenced employment with the Roads Corporation as a labourer, which was work that involved repeated lifting, bending and twisting. The plaintiff also suffered from chronic obstructive airways disease, thought to be due to heavy smoking over a long period of time.
10 The plaintiff’s employment came to an end in early 2014. For a period of about four months between November 2016 and February this year, he worked as a traffic controller – work in which the principal task was the regulation of traffic flow with a “stop/slow” sign, although there was some handling of roadwork warning signs and witches’ hats.
11 The plaintiff has not worked as a traffic controller since February this year.
Chronology of injury
12 As is often the case when dealing with a long history of back pain and fluctuations in symptoms, the plaintiff’s memory of how his back was at various particular times in the past was not impressive, and I formed the view that reference to the contemporaneous clinical notes and histories[6] is likely to be a more reliable guide.
[6]Defendants Court Book (“DCB”) 211-234; Philippiadis v Transport Accident Commission [2016] VSCA 1 at paragraphs [105]-[106]. Although referred to in opening, and at other times in the hearing, Claim Forms lodged by the plaintiff during the period under consideration were not tendered in evidence
13 In cross-examination, he was pressed to agree the proposition that his back symptoms have progressed in a step-like way, having been made permanently worse after each of a number of identified (apparently reported, or referred to in histories) incidents. The plaintiff’s attempts to deal with this aspect of the cross-examination, in my view, reflected the difficulty to which I have earlier referred, at some points appearing to agree with the cross-examiner, and at others, for example “ever since March 2011?--- Yeah, pretty much, yeah. I’m gradually just got worse and worse over time and time.”[7] At another time agreeing that after 2011, his pain stayed the same, and soon after that saying that it had varied since 2010, and later on again saying:
“From 2010, year. Pretty much, yeah. From the first incident, it’s been gradually getting worse and worse and worse and 2011, that accident, it’s gotten worse and worse and worse again so - - -.”[8]
[7]T37
[8]T40
14 In his affidavit, the plaintiff’s account of injury consists only of this:
“I suffered an injury to my back, as a result of the heavy and repetitive nature of my duties.”
15 Reference to the clinical records that were tendered from Dr Naidoo’s practice shows he first attended for work-related back problems on 25 November 2010. Dr Naidoo recorded this:
“1 hurt his back last [Saturday]. was working hard at laying ashfeld (scil asphalt). was niggly. and then stepped on a hole at work on [M]onday afternoon.
2 pain lower back and left hip. radiates to the left knees
3 tenderness left hip and back
4 [restricted] flexion to 40 degrees, extension to 20 degrees
5 no neurological signs.
Document Sent - 3. WorkCover Certificate (Vic) – Dr Poobalan Naidoo.”
16 Entries on 27 November, 6 December, 7 December and 13 December 2010 concerned the issue of WorkCover certificates.
17 In relation to his back, the plaintiff was next seen on 24 January 2011 complaining of back pain following pumping up a bicycle tyre in a domestic setting. It was getting better on 27 January, but then, on 31 January 2011, there is this entry:
“still [complains of] tightness in the lower back”
and
“[aggravated] when he turned his back while doing the stop/go sign.”
18 The next entry, on 3 February 2011, concerned interpersonal problems at work but included “back playing up”.
19 The next entry, on 13 May 2011 by Dr Naidoo, has this history:
“injury to back x 3 - initially two weeks ago - was picking up a steel plate. was niggly . hurt it again while doing shovelling. and again while picking [up] sandbox
[complains of] pain in back. radiating to the [right] foot.”
20 Examination findings showing limited movements are recorded, and WorkCover certificates were issued.
21 Three days later, it is recorded “still in lots of pain” and an MRI scan was ordered, Tramadol was prescribed, and WorkCover certificates were issued. The MRI scan of 20 May 2011[9] showed degenerative changes in the lumbar spine, which the radiologist concluded were “most severe at the L5-S1 facet joints. Indentation of the anterior thecal sac and lateral recesses, and severe bilateral neural foraminal narrowing, at L5-S1”. The report details more specific findings at the lower two levels but I shall not read them here.
[9]Plaintiff’s Court Book (“PCB”) 113
22 On 24 May 2011, the plaintiff was informed of osteoarthritis in his back, prescribed Panadol Osteo and sent for physiotherapy, and, on 31 May 2011, the plaintiff’s movements were noted to be restricted by 25 per cent in all directions, and WorkCover certificates were issued. Later entries concern offers of suitable work in June 2011, and then, on 14 June 2011, there is an entry about back pain which includes that it “hurts all the time”, he was on modified duties, he “finds it hard to walk”, had “joint pain in the knees hips and back”.[10]
[10]DCB 224
23 The plaintiff continued to work and was seen quite often after this time in 2011 with other problems, and then, on 20 December 2011, he was seen with “back flare up”, medical certificates were issued and restricted back movement was noted.
24 The plaintiff was seen after knocking himself out at work on 24 May 2012 with bilateral inguinal pain after lifting at work on 7 August 2012 and then, on 31 August 2012, this entry: “hurt his back 3 days ago while pulleying [wire] rope”, “getting better”. A hip x-ray was ordered and a medical certificate given. Three days later, the same history is recorded with “was a bit sore this morning”.
25 The notes show that the plaintiff was treated for pneumonia and respiratory problems over the last months of 2012.
26 The plaintiff was seen next with low back pain on 22 March 2013, when the entry simply records “Low backache”, and then there is a discussion about bowel symptoms.
27 The plaintiff was next seen on 22 April 2013, where the entry by Dr O’Leary records:
“Low backache - left side muscle spasm
Walking with a limp
Needs physiotherapy, pain relief.”
28 A medical certificate was written. Brufen and Panadeine Forte were prescribed.
29 Soon after, there is reference to a motor vehicle collision and an injury to his little finger.
30 The next relevant entry is 17 October 2013, where the notes included:
“- # Back pain: Left back pain and going down leg, up to knee.
- waking up at nights, not relieved by movements, just stiff and sore.
- # need script - Panadeine forte.”
31 Other concurrent medical problems were discussed. Medical certificates were issued.
32 Dr Naidoo was aware of an incident in 2013 when the plaintiff slipped from a bobcat,[11] but when cross-examined about it, he could not find it in his records. He agreed that this incident also had worsened his back condition in a permanent way.
[11]It is described in his first report at PCB 13
33 In early 2014, the plaintiff was seen for other problems and then, on 29 March 2014, it is recorded “still has limited movement of the back”.
34 On 1 April 2014, Dr Naidoo notes that the plaintiff “feels a bit down because he has lost his job” and it is noted that “his CT abdomen - showed severe L5/S1 intervertebral joint osteoarthritis and chronic L5 pars interarticularis defect”. The plaintiff was referred for a CT scan of the lumbosacral spine.
35 When next seen, on 4 April 2014, the presenting history is noted:
“Lower back pain radiating all the way down to right toe, worse with activity and to the left knee. burning pain and numbness in the [right] toe. flares up from time to time.”
36 Restricted back movements and straight leg raising were recorded, as was slightly reduced sensation on the right. The diagnosis was:
“Chronic backache with impingement.”
37 The CT scan[12] was performed on 2 April 2014 and again shows degenerative changes, principally at the lower two levels.
[12]PCB 114
38 Apart from the traffic control work the plaintiff performed not long before the hearing of the application, the plaintiff has not worked since.
39 In addition to the clinical notes, the treating general practitioner, Dr Naidoo, provided two reports.[13] In his first report, written soon after the plaintiff stopped work, Dr Naidoo refers to injuries at work in 2011 and the subsequent injury in 2013, and gives the diagnosis as “chronic back pain with exacerbations” and as to causation wrote:
“Given the history, my opinion is that this injury is work related, mainly due to his injuries and also due to the physical nature of his occupation.”
[13]PCB 13-19
40 The report records the plaintiff’s history that the plaintiff –
“… ignored the pain hoping that it would resolve itself. However, he continues to experience pain that fluctuates.”[14]
[14]PCB 113
41 In his more recent report of 14 March this year, Dr Naidoo set out a more extensive history, this time going back to November 2010, noting that after November 2010, the plaintiff “continued to experience intermittent lower back pain since then, but was initially able to keep working.” After May 2011, Dr Naidoo wrote that the plaintiff’s –
“… back pain became chronic after this incident. However, he managed to continue working throughout 2013 and into the start of 2014, with varying levels of daily pain.”
42 Dr Naidoo notes that after the plaintiff ceased work in April 2014, pain was limiting his movement, Lyrica was prescribed for his impingement associated pain, physiotherapy was recommended and he was prescribed Tramadol, paracetamol and ibuprofen.
43 The plaintiff remained off work, and in July 2015, was referred to Dr Robert Gassin, a musculoskeletal specialist. After seeing the plaintiff on three occasions in the second half of 2015, Dr Gassin recommended conservative management and pain control, which Dr Gassin regarded as adequate, with the prescription of Tramadol and Lyrica. A repeat MRI scan in 2015[15] showed degenerative disc disease at the lower two levels without focal disc prolapse.
[15]PCB 115
44 In evidence is a report from Dr Robert Gassin,[16] in which he says he saw the plaintiff on three occasions in the second half of 2016.[17] Dr Gassin was hopeful that the plaintiff’s back pain would improve, as it had when he was under his care, that he expected him to continue to suffer with low-back pain, at least on an intermittent basis in the foreseeable future, and that if it became worse, consideration could be given to medial branch blocks.
[16]PCB 29-30
[17]It seems that 2016 is a typographical error, the MRI scan of 10 July 2015 is addressed to Dr Gassin – PCB 115
45 The plaintiff continues to be managed conservatively with those medications.
Medico-legal reports
46 Rather unusually, almost no reference to the medical reporting in the case was made during either counsels’ submissions. The general practitioner’s opinion is that the plaintiff’s back condition is the result, at least, of his work, and the incident was not challenged when he attended for cross-examination.
47 Professor Richard Bittar, neurosurgeon, saw the plaintiff on 18 February this year and obtained a history of heavy and repetitive work and of three incidents of injury which he set out – broadly consistent with the clinical notes I have reviewed. Professor Bittar thought the plaintiff’s employment with the Roads Corporation was a significant contributing factor to his lumbar spine condition, and that the plaintiff suffered from the aggravation of lumbar spondylosis. Professor Bittar wrote that:
“His workplace activities from November 2010 until 2013 have been significant contributing factors to his aggravation of pre-existing but asymptomatic lumbar spondylosis.”[18]
[18]PCB 34
48 At the time he saw him, the plaintiff was working as a traffic controller, which Professor Bittar noted caused, over five or six hours of standing, “a significant escalation of his pain at the end of the day”.
49 The plaintiff was seen by Dr Robin Horsley, occupational physician, on 1 March this year. Like others, she obtained a history of three specific incidents and of continual back pain whilst working until April 2014 when he was put off work – when his boss noticed that he was not coping well. Dr Horsley thought the plaintiff suffered from mechanical back pain with a radicular component, that his symptoms were likely to persist, and that three events he had described and “the nature of Mr Johnson’s manual work”[19] were causes of his “ongoing chronic mechanical back pain with a radicular component”.[20]
[19]PCB 106
[20]PCB 106.
50 Soon after the plaintiff ceased work, he was seen on the defendant’s behalf by Dr David Barton, consultant occupational physician.[21] Dr Barton recorded a history that the incident with the steel plate on 30 March 2011 occurred when the plaintiff, for a period of about three minutes, had to prevent a steel plate, which he had been holding whilst it rested on its edge, falling. At that time, Dr Barton thought the plaintiff had persisting symptoms from mild mechanical lower back problems in the setting of long-standing degenerative changes seen on CT scan.
[21]DCB 95-100
51 In September 2014, the plaintiff was examined by Dr Ian Taubman, consultant physician. He obtained a history of the event with a steel plate in March 2011, of a return to normal work after two weeks, followed by “[i]ntermittent flares … requiring him to take off three to four days from work on each occasion”,[22] before returning to normal duties, and that, whilst performing them, he experienced a feeling of stiffness. Dr Taubman was unimpressed with his presentation and thought most of his problems were functionally based.
[22]DCB 115
52 In January 2015, the plaintiff was examined by Dr David Fish, consultant occupational and environmental physician, who obtained a history of three incidents, as well as persisting symptoms of stiffness and pain whilst performing his normal duties. Dr Fish was seeing the plaintiff for the purposes of an impairment assessment and (although his opinion as to this is difficult to understand), concluded that the plaintiff had impairment from the November 2010 event and therefore no impairment from the March 2011 incident with the plate.[23]
[23]DCB 123
53 In evidence were reports from the rheumatologist, Dr Tony Kostos.[24] He saw the plaintiff on two occasions and he did not think there was a physical basis for the plaintiff’s complaint of back pain.
[24]DCB 126-133
54 In evidence also was report from the psychiatrist, Dr Chris Grant. As the plaintiff did not rely on paragraph (c) of the definition of injury, and no submission was made about the plaintiff’s psychiatric state, I need say no more about that.
55 The plaintiff was examined by Dr David Ho, occupational health consultant, in October 2015.[25] Dr Ho thought he had had a mechanical or soft tissue injury in March 2011, from which he had recovered, and that at the time of his examination, the plaintiff was suffering from symptomatic degenerative disc disease in his lumbar spine, “that would have presented insidiously”,[26] and which was “constitutional”.[27] Dr Ho’s opinion that the degenerative condition was unaffected by his years of heavy work seems to me to be at odds with his recommendation that “to avoid any further aggravation of his underlying degenerative disc disease, he must take care with manual handling and excessive heavy lifting”.[28]
[25]DCB 140-148
[26]DCB 145
[27]DCB 146
[28]DCB 147
56 On 3 March 2017, the plaintiff was examined by Dr Gary Davidson, occupational physician. Although he found inconsistencies on examination, Dr Davison thought there was an organic component to his symptoms given the radiological changes, that they accounted for the majority of his pain symptoms, and that the incident March 2011 materially contributed to his condition, but that there was no evidence to support the notion that his work in general over the six years or so that he performed it did not.[29] He thought his symptoms would continue, and he was unlikely to resume his pre injury work.
[29]DCB 157 – explaining this further, he noted “there were no further incidents apart from 30.03.11”
Analysis
57 The first issue raised by the defendant was whether it is necessary for the plaintiff, in order to succeed, to delineate the consequences of each of the incidents described in the histories, and the consequences of any injury caused by the work in general, and, after making the Petkovski[30] comparison, establish that each injury had consequences which, taken alone, satisfied the “very considerable” test. On the defendant’s behalf, it was submitted that this was required here, that to do otherwise would be to aggregate separate injuries and be contrary to Lu,[31] and that the plaintiff could not satisfy the burden he bore in this regard. On the plaintiff’s behalf, it was submitted that no such separation of consequences was required in a case where the injury relied upon was suffered “by way of a gradual process over time due to the nature of employment”. It was also submitted that the approach taken in an earlier decision of my own, Kite v George Pattison Pty Ltd & Victorian WorkCover Authority[32] was applicable here.
[30]Petkovski v Galletti [1994] 1 VR 436
[31]Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511
[32][2008] VCC 1172
58 Before considering this issue, I should set out my findings in relation to the causes of the injury upon which the plaintiff relies.
59 I am satisfied that as a result of a number of incidents (described in the medical histories, recorded in the treating general practitioner’s clinical notes and reports, and in the plaintiff’s evidence) and as a result of the heavy and repetitive nature of the plaintiff’s work as a road works labourer over the period of his employment, that the plaintiff sustained a compensable injury, being the aggravation of lumbar spondylosis.
60 In reaching that conclusion I have preferred the opinion of the treating general practitioner, Professor Bittar, and Dr Horsley. Dr Naidoo, a general practitioner of great experience, saw the plaintiff regularly over the period the case concerns and so was well placed to observe changes in the condition of the plaintiff’s back and the effect upon it of his work. In his first report, Dr Naidoo wrote “[g]iven the history, my opinion is that this injury is work-related, mainly due to his injuries and also due to the physical nature of his occupation”.[33] Returning to the issue in his most recent report,[34] Dr Naidoo wrote:
“[I]n my opinion, his injuries are consistent with the stated cause. The initial injury from 25 November 2010 was the first incidence of Mr Johnson’s back pain. Trauma can precipitate and worsen osteoarthritic changes which in turn can contribute to neurological pain. Workplace activities undertaken after this have aggravated his symptoms.”
[33]PCB 13
[34]PCB 18
61 Cross-examined about this issue, Dr Naidoo maintained that after 2011, the plaintiff’s condition had deteriorated, that his work would cause his condition to flare up, after which it would settle down somewhat. Asked whether he could identify and separate which back problems came from which incident and which came from his work in general, he agreed with the proposition that they were all jumbled together.[35] In re-examination, Dr Naidoo said that the deterioration of which he had spoken during cross-examination was caused by his work, and reminded of his agreement that “they were all jumbled together”, the doctor then said that his work “cause 100 per cent of his disability” and agreed that in expressing that opinion, he was “excising the November 2010 and March 2011 episodes”.[36] Dr Naidoo said in re-examination that over the period of the plaintiff’s employment, his back condition deteriorated.
[35]T105
[36]T121
62 The contrary opinions, to the effect that whatever injury had been sustained has now passed, and that the underlying degenerative disease was unaffected by his work and the incidents, was not put to Dr Naidoo when he attended for cross-examination, nor was it the subject of any submission on the defendant’s behalf. I should say that I found Dr Naidoo to be an impressive witness. I accept his opinion.
63 I am also satisfied that the aggravation of lumbar spondylosis is an injury within the meaning of s82(6) of the Act, as the injury suffered occurred by way of gradual process over time due to the nature of the plaintiff’s employment with the defendant. I am satisfied that the plaintiff’s work over the years he was employed by the defendant involved heavy and repetitive work with bending, lifting and twisting, and that this work, by reason of its “tendencies, incidents or characteristics”,[37] exposed the plaintiff to the increased risk of the aggravation of lumbar spondylosis, and did so in this case.
[37]The Commonwealth v Bourne (1960) 104 CLR 32 at 39
64 I am satisfied also, that the incidents, and the heavy work over the period of his employment, were a significant contributing factor to the aggravation of lumbar spondylosis, and so compensable under s82(2C)(c).
65 By its terms, s134AB(1) applies “in respect of an injury arising out of or in the course of, or due to the nature of, employment …”. In Barwon Spinners & Ors v Podolak,[38] Phillips JA, speaking for the Court, said:
“… Subsection (1) speaks first and foremost of the plaintiff’s having (in substance) a compensable injury, a concept which surely derives from the preceding provisions of the Act. … .”[39]
[38]Supra
[39]at paragraph [10]
66 Relevantly, for compensation purposes, injury (physiological change) is compensable if it falls within ss82(1), ss(2C)(c) or (6). Section 82(6) has been in the Act since 1985 and its operation in respect of gradual process injury suffered over a period of time “due to the nature of” is explained in many decisions since its introduction.[40] Reference to them shows that it is not necessary, in order to engage the provision, to prove that the gradual process occurred at an even rate over the period under consideration, and that the occurrence of particular incidents within an overall period of employment does not deprive the section of its operation.
[40]Daniel v Victorian WorkCover Authority & Anor (Unreported, County Court of Victoria, Lewis J, 21 November 1994); Harding v CIC Workers Compensation (Vic) Ltd & Anor (Unreported, County Court of Victoria, Rendit J, 1 September 1995); Accident Compensation Commission v Fletcher [1990] VR 102; and Accident Compensation Commission v Tilley [1992] 2 VR 499
67 In my opinion, a s82(6) injury, for the purposes of the evaluation of serious injury in accordance with s134AB, is to be considered as if the whole impairment resulting from the gradual process resulted from a single injury. In my opinion, this conclusion is consistent with the use of the expression “or due to the nature of” in ss(1), and with the history of the Act. When first enacted, an alternative way of establishing serious injury was a whole person impairment assessment of 30 per cent or more. By then, the approach to claims for impairment benefits in the case of gradual process injury shown in the decisions earlier referred to – shortly, treating the whole of the assessed impairment whenever caused as occurring all at once – was clear. It cannot have been intended that, within the s134AB scheme, “the injury” was to be assessed on one basis for the 30 per cent impairment “gateway” and on a wholly different basis for the other.
68 In case I am wrong in that conclusion, there is, in my view, another reason that the defendant’s contention should be rejected. Although in cross-examination of the plaintiff, and Dr Naidoo, the point was sought to be made that specific events followed by a permanent worsening of symptoms in each case, was the history here, an examination of the clinical notes does not support this. For example in November 2010, the report of the onset of back symptoms covers shovelling on Saturday, and stepping in a hole the following Monday. In relation to March 2011, the event with the steel plate seems not to have been reported to Dr Naidoo until 13 May 2011, when it appears as just one of three incidents of back injury recounted in that presentation.
69 In my view, for reasons I gave in Kite v George Patterson Pty Ltd & Victorian WorkCover Authority,[41] where the plaintiff relies upon a series of incidents of strain, relatively close in time, and occurring during an overall period of otherwise heavy work also likely to impose strain on the body part relied upon, and where it is established that the end result of the work and the incidents of strain is a compensable permanent impairment – as here – that it is not necessary, in order to succeed, for the plaintiff to dissect out of an overall period of heavy work, with occasional incidents, particular incidents or periods of work causing injury which, taken alone, have consequences that satisfy the serious injury test.
[41](supra) at paragraphs [29]-[47]
70 I am satisfied that the compensable injury identified earlier is the cause of permanent impairment and loss of function of the plaintiff’s lumbar spine.
71 The next issue to be determined is whether the compensable condition of the plaintiff’s lumbar spine has consequences which satisfy the very considerable test. As to this, it was the defendant’s contention that the credibility of the plaintiff’s account of his back symptoms and impairment was damaged in cross-examination and should not be accepted. Further, the defendant submitted that a great many of the impairment consequences the plaintiff relies upon, are impaired by reason of his pre-existing and progressing chronic obstructive airways disease, and so the Peak Engineering[42] analysis was required.
[42]Peak Engineering Pty Ltd & Anor v McKenzie [2014] VSCA 67
72 As to this, the plaintiff was extensively cross-examined from a document prepared in 2014 at about the time his work with the defendant came to an end. (Later in the cross-examination, the plaintiff sought to make the proposition that it had come into being in 2011, a proposition not supported by Dr Naidoo from whose notes the document DCB 167(a)-167(d), had been extracted.) In the document under four headings are listed a total of 82 work and domestic activities, symptoms, and a variety of disabilities and problems (some of them duplicated under different headings). In relation to each of them, the document nominates whether the problem identified is due to the back, the lungs, some other condition, or some combination of them. In regard to a great many of them about which he was cross-examined, the problem is attributed to both the back and the lungs.
73 Pressed as to these matters, it was the general tenor of the plaintiff’s explanation that the back was much more of a problem than the lungs, and although, as counsel submitted, some aspects of his attempts to explain this document were unsatisfactory, in general, his contention that his lungs were not such a big problem as at April 2014 was in keeping with Dr Naidoo’s account that his lung condition then, taken alone, would not have prevented him working in road construction.[43] Whatever is to be made of the document from which the plaintiff was cross-examined, it nevertheless lists, out of the 82 items, some 34 that he then attributed only to his back.
[43]T125-127
74 True it is that his lung condition has progressed, but it is my view that, putting to one side aspects of his life which would also already be lost to him, interfered with or impaired by the condition of his lungs, the consequences of his back injury satisfy the very considerable test.
75 I have reached that conclusion because I accept the plaintiff’s account, and his account seems to be corroborated by Dr Naidoo, that he suffers from chronic back pain on a daily basis and that his symptoms flare up with relative frequency. I accept that his back and leg symptoms are such that he needs to take Tramadol (narcotic analgesic) twice a day and Lyrica once a day to control them, as well as Panadol and Voltaren when his chronic level of symptoms has flared up. I accept his account that even the very light work as a traffic controller, which was extensively canvassed in the course of his evidence (at a time when his present capacity for suitable employment was a live issue in the case), regularly caused exacerbation of his back symptoms to a level where, despite the medication he is taking, he was reduced to tears by the pain. Whatever be the effect on his stamina of his lung conditions, his back injury causes increased pain and difficulty with a great range of social, sporting, work, domestic, family and relationship activities. Further, he has only ever worked in manual fields of work and his recent work experience would suggest that manual work that did not require good lung function is permanently beyond him because of his back condition. Further, he is only forty-four years of age and so will have to endure these problems for many years.
76 I am satisfied that the impairment or loss of body function of the plaintiff’s spine has resulted in pain and suffering consequences which are, when judged by comparison with other cases in the range of possible impairment or losses of body function, fairly described as being more than significant or marked and as being at least very considerable (s134AB(38)(c)).
77 For these reasons the plaintiff is granted leave to bring a proceeding for the recovery of damages in respect of the compensable serious injury to his lumbar spine.
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