Laredo v Smith

[1988] TASSC 97

Serial No B29/1988

List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Laredo v Smith [1988] TASSC 97; B29/1988

PARTIES:  LAREDO
  v
  SMITH

FILE NO/S:  WC 507/1987
DELIVERED ON:  20 September 1988
JUDGMENT OF:  Neasey J

Judgment Number:  B29/1988
Number of paragraphs:  11

Serial No B29/1988

List "B"

File No WC 507/1987

LAREDO v SMITH

REASONS FOR JUDGMENT  NEASEY J

20 September 1988

1. The question in this workers' compensation case is whether the defendant employer was entitled to terminate weekly payments of compensation to the plaintiff on 21 October 1987, within the terms of s21(1) of the Workers' Compensation Act 1927. The defendant ceased making weekly payments as of that date on the ground, under s21(1)(e), that the plaintiff was no longer entitled to payment of compensation under the provisions of the Act. However, the defendant by his counsel agreed that the onus is on the defendant to prove on a balance of probabilities that the plaintiff had ceased to be so entitled – see eg Briers v Mental Health Services Commission [1985] Tas R 170; Rutledge v AE Jack Nominees Pty Ltd [1982] Tas R 81; Barber v Associated Pulp and Paper Mills Ltd [1981] Tas R (NC) 21. The quantum of monies payable to the plaintiff if he succeeds is agreed.

1. The defendant admits that the plaintiff is suffering from disability and incapacity for work, but denies that such disability and incapacity are any longer due to the accident which admittedly occurred during the course of the plaintiff's employment on 21 May 1987.

1. The plaintiff gave evidence that at the time of the accident he was employed as a mechanic at the defendant's service station in North Hobart. He assisted his brother–in–law the defendant to lift a motor car engine and carry it some feet from one place to another. The weight of the engine was about 150 – 200 kilograms. While he was lifting, the plaintiff felt a pain in his lower back, which he found was quite severe after the engine was put down. He continued working for a week or so, but because the pain was persistent he went to see a doctor on 1 June 1987, and on that day ceased work. He claims that because of the persistence of the pain since then, he has remained fully incapacitated from work.

1. The plaintiff agreed that about 12 months before this accident, when he was working for the same defendant, he hurt his back when he was pulling a gear box out of a vehicle on the hoist at the service station. He suffered pain in the same area of the back as he has it now, but after lasting about a month it almost ceased, and he was able to continue working. In the five months prior to the accident on 21 May he was free of any back pain. He had had "slight twinges" in his back for perhaps three or four years prior to that accident. After the earlier accident he had been to see Mr Turner, the orthopaedic surgeon. The plaintiff gave detailed evidence about his pain in the lower back and left leg, the sort of treatment he has for it, how it affects his daily life, the kinds of work and activity he can and cannot do, and the like. He called his wife also, who testified in support of her husband in relation to some of those matters with which she was familiar. I accept the plaintiff and his wife as witnesses of truth and substantial accuracy.

1. The plaintiff's principal medical witness was Mr Graeme Duffy, the orthopaedic surgeon, who first saw the plaintiff at the request of the plaintiff's solicitors on 5 November 1987. The plaintiff brought with him on that visit copies of medical reports he had from Dr Jackson, who had treated him for relief of pain, and from Mr Turner. Following that visit, Mr Duffy supplied a written report which was tendered in evidence. He there set out a history given him by the plaintiff, which is consistent with the plaintiff's evidence. On clinical examination Mr Duffy found marked restriction of lumbar spine movements, and there was accompanying complaint of pain. Straight leg raising was reduced in the left leg to 45^o . There was some limitation of straight leg raising on the right leg. Mr Duffy confirmed that at that time he regarded the plaintiff as not fit to return to work.

1. Mr Duffy gave oral evidence. He repeated much of the material in his written report and said that at the time of the first examination he was not able to give an absolute or definitive diagnosis, but thought the plaintiff warranted further investigation. However his diagnosis at the time, which I understand to have been provisional, was chronic back strain precipitated by the injury sustained on 21 May 1987. He said that the difficulty of giving precise diagnoses in cases of chronic back strain is due to various reasons. An important one is that operation is not generally indicated, so the surgeon does not see the injuries, and since they are not usually death causing, a post mortem in which they can be seen is unusual. He said however, "What does happen is that there is strain on the ligaments and on the muscles and indeed, there is strain on the joints and in particular in the circumstances where the joints are already wearing, which is almost a natural process, that injury can produce persisting and prolonged symptoms." His said his opinion that the precipitating cause of the plaintiff's ongoing pain and chronic back strain was the lifting of the motor on 21 May 1987 was due to the history given him by the plaintiff, but there was nothing in the medical history given him which was inconsistent with that opinion being correct.

1. Mr Duffy was asked to comment on an opinion contained in a written report made by orthopaedic surgeon Mr Field (whom the defendant called in evidence), which the plaintiff had brought with him on the occasion of his first visit to Mr Duffy. The opinion was as follows:– "I would have anticipated .... that these symptoms would have settled within three to six months. I doubt that the degenerative process has been influenced by the two lifting accidents at work." Mr Duffy disagreed with the proposition that the symptoms would be expected to have settled within three to six months after the accident. He said "It has been my experience that those symptoms can settle within three to six months; (but) with this type of injury the symptoms can, indeed, become chronic and ongoing, and indeed there are many precedents to that". Mr Duffy also said that he thought the degenerative process already showing in the plaintiff's back was relevant to the onset of the symptoms at the time of lifting the engine, and that injury could precipitate symptoms in a pre–existing degenerative process of that kind. Therefore he disagreed with Mr Field's doubt as to the degenerating process having been influenced by the two lifting accidents at work. His overall opinion was that the ongoing symptoms had been caused by the injury in May 1987. In cross–examination, Mr Duffy said that he had had some 30 years' experience in his medical field of orthopaedic surgery, and his opinion as to the cause of the plaintiff's ongoing symptoms was partly based on that.

1. The defendant, seeking to discharge the onus of showing that the plaintiff's disability had ceased to be due to the accident in May 1987, called the two orthopaedic surgeons, Mr Turner and Mr Field. Mr Turner said he had seen the plaintiff on four occasions, beginning on 3 April 1986. At that time he saw x–rays which showed degenerative changes in the lower part of the plaintiff's lumbar spine. He saw the plaintiff again in June 1987 after the May accident, and was told that the plaintiff had pain and stiffness in the lower back, the pain being constant and aggravated by prolonged sitting. As a result of his examinations of the plaintiff, Mr Turner gave as his opinion that the cause of the plaintiff's present disability "is related to the degenerative disease in his spine, which has perhaps progressed a little over the past few years. It is a natural history of the disease, if you like." Mr Turner further said "I think if you have a back such as this then any sort of strain, or whatever, will produce an exacerbation of symptoms, but I don't think that on the history as I have it, (the accident on 21 May 1987) resulted in any particular permanent impairment". In a written report dated 24 September 1987, Mr Turner said "I believe that if he has the appropriate treatment that he should be able to get back to his former occupation in the not too distant future, although there must be some doubt over his ability to continue with this line of work if these incidents are going to occur at frequent intervals".

1. The defendant then called orthopaedic surgeon Mr Field. He gave some detailed history as to the onset and progress of the plaintiff's disability, and of the result of his examination of the plaintiff on 23 June 1988. He described x–rays of the plaintiff which showed radiological evidence of degeneration at the L45 and L5\S1 levels. He said that on certain of the x–rays showing the L5\S1 level there appeared to be disk material protruding laterally on the left side. He was asked, "If you accept Mr Field that in October 1987 and today that Mr Laredo suffers back pain and disability, to what do you attribute that?" He replied "He had no clinical evidence of a disc prolapse with pressure on the nerve roots and I attribute his present symptoms to instability in his lumbar spine". He also said that he would have expected in the normal course that the symptoms attributable to the accident in May 1987 would have resolved within three to six months. He was then asked what his opinion was assuming it is not possible to postulate that the plaintiff's symptoms brought on by that injury would necessarily have settled within that time, and he replied, "I feel it would be unusual, not (in) keeping with the normal history of instability". He said that he did accept that the accident in May 1987 was the reason for the initial pain. Mr Field also said in reply to a question of mine, as to whether he had some doubt at the time of his examination of the plaintiff about his bona fides, that he did have some doubts. I understood this to be because he was not sure that the plaintiff was doing his best to carry out the movements he was asked to perform during the examination. Probably, the core of Mr Field's opinion was contained within the short statement, "I don't accept that this degeneration with instability will last this length of time". I asked this witness whether he in his own mind was persuaded that it is necessarily correct, as the plaintiff claims, that his symptoms have persisted without any change. He said "My doubt about that is really based on the natural history of the condition ....... but I've no evidence clinically to refute that ....... It would be unusual, very unusual for pain to continue for this length of time after a paravertical joint strain ...... All I can say (is) that the vast majority of attacks of instability back ache do resolve in a number of weeks as the first episode did"; and further that in the naturally expected progression of the pre–existing condition the plaintiff had, it would be usual that he would have "multiple episodes of pain as a result of the instability".

1. In result, there is evidence which I accept from the plaintiff's side that –

(1)       His pain has continued unchanged from the time of the precipitating accident in May 1987.

(2)       As Mr Duffy said in substance, some plaintiffs who have this kind of medical history and injury experience do have persisting symptoms.

1. As against that evidence, my difficulty with the case submitted by the defendant is that, given my acceptance of the plaintiff's evidence that his pain has continued unchanged, and Mr Duffy's evidence that in his opinion and experience this happens sometimes in such cases, the defence witnesses say, in effect, in the great majority of patients with that history and condition, the pain and disability precipitated by the accident would have resolved within a few months of the accident, and that the plaintiff's present condition could be expected in any event to have resulted from the progression of his pre–existing disability. That is to say, the substance of the defence case appears to be based upon the medical expectation of their experts as to what would almost certainly happen with the great majority of patients in similar cases. It seems to me, however, that on the balance of probabilities, the fact that the plaintiff's disability, admittedly precipitated by the accident, has continued unchanged indicates that if their medical views are correct the plaintiff is one of the exceptions. These conclusions require a verdict in favour of the plaintiff.