Lee v Ballarat City Council
[2015] VMC 40
•1 December 2015 (at Melbourne)
| IN THE MAGISTRATES COURT OF VICTORIA | F12267446 |
AT BALLARAT
| PETER LEE | Plaintiff |
| v | |
| BALLARAT CITY COUNCIL | Defendant |
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MAGISTRATE: | Magistrate B R Wright |
WHERE HELD: | Ballarat |
DATE OF HEARING: | 17 November 2015 |
DATE OF DECISION: | 1 December 2015 (at Melbourne) |
CASE MAY BE CITED AS: | Lee v Ballarat City Council |
MEDIUM NEUTRLA CITATION: [2015] VMC040
REASONS FOR DECISION
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Catchwords:
Workers Compensation – Rejection of Claim – Lumbar Spinal Degeneration – Work Relationship - Aggravation and Acceleration of Pre-Existing Disease – Lengthy Period of Employment - Later Acute Episodes of Acute Pain and Radiculopathy at Home – “Significant Contributing Factor” – Accident Compensation Act ss. 5(1B), 82(2) and (2C)
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Perry | Saines Lucas |
| For the Defendant | Mr S Smith | IDP Lawyers |
HIS HONOUR:
1 Mr Lee is a 61 year old mobile plant/backhoe operator who was employed in that capacity since about 1982 by the Ballarat City Council (“the Council”). His claim for a back injury resulting in incapacity from 16 June 2014 has been denied. He eventually underwent back surgery on 1 December 2014 and has been off work since.
2 Both counsel agree that the only issue for me to decide is whether his injury was work-related, especially having regard to s.82(2C) of the Accident Compensation Act (“the Act”) as he clearly had pre-existing spinal degenerative changes. Mr Lee was the only witness called to give viva voce evidence in this case.
3 His claim form stated he sustained the injury "throughout the course of my employment by repetitive jolting and jarring my back driving earth moving equipment, lifting heavy pipes and materials". Although it may have been arguable that s 82(6) of the Act as to gradual process was applicable (see, Harding v CIC (1995) VCC 30 at pp 23 to 26 of the original judgment), the case before me did not proceed on that basis.
4 The Council denied any work-related causation in general, or specifically pursuant to s82(2C). Further, it alleged that Mr Lee stated to fellow employees that he had hurt his back when gardening at home just before 16 June 2014. Save for the alleged conversation between Mr Lee and the workmates, there was very little factual dispute in this case.
5 From 1982 onwards Mr Lee drove and operated a backhoe on average seven hours per day. It was used for trenching, excavating and even digging graves. When not doing that he may have done other activities such as lifting and carrying long and heavy pipes into house blocks and manipulating them in to position.
6 Because of concerns about theft and vandalism, the backhoe would generally be kept overnight at the Council’s depot in Ballarat, or later in Wendouree. The first backhoe he used was attached to a tractor whose only suspension was its tires. The later backhoe had a spring seat suspension but still led to him to being bounced. There was constant jolting and jarring to his back while using the backhoe. The backhoe would have to be driven to and from the work site each day. This involved driving it at a relatively slow speed on highways and back roads.
7 The backhoe would jolt and jar his back when doing this. As it travelled slowly, it would be necessary for him to pull over and travel on the verge and shoulder of the road to allow cars to overtake. This led to further jolting and jarring, much more than travelling on a flat bitumen surface.
8 On site he would have to sit sideways, straining and turning around to the left and the right to see what he was doing.
9 He first had low back symptoms about five years after starting. He was treated on one to two occasions by the council physiotherapist in about July 2005 according to his examination-in-chief. It was agreed his workers compensation claim for "back pain/strain" in 2006 was admitted. He was off work for about four weeks and then returned to work on normal duties. The pain he said was then to the central mid belt line area of the low back.
10 In November 2006 he went again for treatment by the Council physiotherapist, Cheryl Jamieson, which was also paid for by the Council. He had also been treated for some ten years by his own physiotherapist, Mr Geljon. He said he would go and see Mr Geljon whenever he had a "pinch" in his low back. He thought he had seen Mr Geljon about 10 or 15 times over those ten years.
11 In the period just prior to June 2014 he said his back was getting worse. He was getting more episodes of what he described as "pinching" to his low back. He continued to work at normal duties.
12 On the morning of Monday 16 June 2014 he went to get out of bed and had what he described as “hellish” pain to his low back. His pain went down the back of his right thigh to the calf. He rang his supervisor and spoke to a Terry Slater and said he would not be in to work.
13 He saw his usual GP's partner and was referred for an MRI and given a medical certificate for a few months off work. He had physiotherapy. He also had his back strapped and did not return to his GP until 29 September 2014.
14 He said he was supposed to go back on office work but he was sent out for four days measuring footpaths and doing estimations for material for footpath works. He was put in to the office on the Friday of that week.
15 On the next working day there was a HR meeting at work and he was stood down. He said HR did not accept he had a full clearance medical certificate. Thus, he has been off work since that day (about 5 October 2014) and continuing. His employment was formally terminated in March 2015.
16 In November 2014 he was on holidays in Tocumwal. He woke up one morning and had severe back pain when getting out of bed. He said he could not control his right foot which dropped. He was not able to stand up. His wife drove him back to Ballarat and he saw his doctor again.
17 He was referred to Mr Damien Tange, neurosurgeon, who sent him for a further MRI before operating on 1 December 2014. Mr Lee said the surgery helped the severe back pain and also the right foot drop.
18 As to the allegation as to gardening being a cause, he said that on his return to work for that one week there was a new manager. He was asked what he had been doing on the weekend before he had the first episode of severe back pain. He said that he had been using a ride-on mower for one hour, but did not hurt his back then.
19 In cross-examination it was put to him that the only attendances for back pain at his physiotherapist between 2006 and 2014 were three episodes between June and September 2013. Mr Lee disagreed and said that he saw his physiotherapist more frequently than that. He had seen him regularly about once to twice per week in 2006.
20 It was put to him that he last complained about his back to his GP in May 2003. Mr Lee denied this and said at the very least his GP had given him a medical certificate for his time off in 2006. He agreed he had been able to work until 2014 but said that this was under difficulty. He could not cope with the pain any more after then.
21 He disagreed with the apparent history to his GP’s partner on 16 June 2014 that he had the pain for one day with no specific incident. He said he believed he told the GP, Dr Livingstone, of the pain being associated with driving and operating the backhoe. He disagreed that he had told a number of work mates he had hurt his back while gardening at home in June 2014. He said he merely told Mr Luke Ives, the Co-ordinator of road maintenance, that he was using a ride-on mower that weekend. He had said nothing about injuring himself in those circumstances.
22 Mr Lee said he was not even at home that weekend. He was at his mother-in-law's house using a ride-on mower. He said he did no actual gardening that weekend anyway, except for the ride-on mowing.
23 In re-examination, he said he told his workmates he was wearing a back brace and was accused by them of “self-medicating”.
24 The Council tendered a number of statements, without objection, from some work-mates.
25 Mr Cameron Montgomery, Safety Manager, stated that on 25 September 2014 and 7 October 2014 Mr Lee had told him he had hurt his back while gardening at home. He said the Council would not accept a medical certificate that he was fit to return to work. This was not satisfactory, as he had been off work for a long absence.
26 Further, on 2 October 2014 Mr Lee had said to him that his injury was not work-related and had occurred while gardening at home.
27 In a statement Mr Ives stated that on 7 October 2014 Mr Lee said that he had injured his back "attending to gardening at home on the weekend prior to him ceasing work and did not provide any further detail in relation to the gardening".
28 Beryl Parker, Injury Management Advisor, referred to a meeting with Mr Montgomery and Mr Ives in which Mr Lee "disclosed he had suffered a back injury at home gardening but did not provide any further detail in relation to the gardening".
29 Joanne Grainger, HR Manager, said that in or about July or August 2014 Mr Lee told her he had been off work for some time as he had sustained a back injury while gardening. Mr Lee gave evidence that he remembered that meeting, but he denied that alleged conversation.
30 Juliet Coates, HR Adviser, also referred to a meeting on 7 October 2014 with Mr Montgomery, Mr Ives and her on that date to discuss Mr Lee's fitness for work. She goes on to say in her statement "Peter disclosed that he had injured his back attending to gardening at home on the weekend prior to him ceasing work. He did not provide any further detail in relation to the gardening."
31 That completes the lay evidence. I will go through the various reports tendered in court in a roughly chronological order. As the only issue is work relationship causation, I will set out medical material mainly as to that issue.
32 In her report Ms Jamieson, physiotherapist, stated that she saw Mr Lee on 29 July 2005 with a 25 year history of low back discomfort "which he attributed to his positioning and posture as a backhoe operator". Further, in November 2006 Mr Lee mentioned he had a recent bout of acute onset low back pain which rendered him unfit for four weeks. There was no other material from Ms Jamieson.
33 Dr Crook supplied two medical reports which are limited to events only from 16 June 2014. He did not refer to earlier attendances, including the attendances for any back complaint in 2013 put to Mr Lee in evidence. His notes were also not tendered. He states that Mr Lee attended his partner, Dr Livingstone, on 16 June 2014 with lumbar disc lesion and bilateral sciatica worse on the right side. The pain had been present for one day "on this occasion, with no specific cause for this exacerbation of pain" (emphasis added).
34 He arranged an MRI. On 18 July 2014 Dr Crook reviewed Mr Lee who told him "he had previously worked on an excavator and had always been jolted all day whilst working on an excavator."
35 On 24 September 2014 he felt that Mr Lee was fit to return to work provided he wore a brace at work.
36 He saw Mr Lee on 26 November 2014 with a severe development of his condition. He had been in Tocumwal on holiday when he developed severe back pain and right foot drop on 21 November 2014. Dr Crook noted that there was no “aggravating injury” in Tocumwal. Mr Lee progressed to surgery on 1 December 2014.
37 Dr Crook said the MRI showed pre-existing degenerative disc disease. He believed the injury, a prolapsed disc, right sciatica and foot drop, was directly related to his employment as a backhoe operator. He referred to the work history, backhoe activity and other lifting similar to that I have already summarised as part of Mr Lee's evidence. Dr Crook stated that he believed "strongly that his degenerative disc condition was aggravated to a considerable extent by his employment as a backhoe operator”.
38 Dr Crook went on to say “ the degenerative disc condition resulted in a severely prolapsed L4-5 disc fragment leading to right foot drop. The constant jolting up and down in the backhoe seat whilst operating the machine and driving it to jobs had contributed greatly to his present condition. Also the heavy lifting, pushing and pulling associated with employment contributed to his injury". Nowhere does he refer to any history or allegation of an injury while gardening.
39 Mr Damien Tange, neurosurgeon, provided three short reports to the GP and the Accident Compensation Conciliation Service.
40 In the latest report he emphasised that he saw Mr Lee for treatment and not for medico-legal purposes. Apart from history of being a backhoe operator, he took no other work history. He arranged a second MRI which showed a large prolapsed disc at the right side of L4-5 extending down along the L4-5 nerve route. On 1 December 2014 he operated removing the large fragment, performing a right L4-5 hemi-laminectomy, L4-5 microdiscectomy and L5 rhyzolisis.
41 In January 2015 he reviewed Mr Lee’s weight lifting restrictions. There were no other relevant material in his report.
42 Mr Lee was examined by Mr Thomas Kossman, orthopaedic surgeon, for medico-legal purposes on behalf of his solicitors on about 13 August 2015. He provided a subsequent report and a short follow-up report.
43 For the purposes of his examination he had Dr Crook's report and Mr Tange's three medical reports. He took a history of deteriorating back pain over ten years which Mr Lee attributed to the poor suspension of the earth moving machinery that he was required to drive.
44 There was a report of the injury to his supervisor on 16 June 2014 and total incapacity for three months. He then referred to Mr Tange's surgery on 1 December 2014 and the two MRI reports. He noted Mr Lee had worked for the defendant for 35 years prior to retrenchment.
45 It does not appear that he was asked for the purposes of his first report whether the injury was work-related and thus he did not address that crucial question. He appears to have been asked only for details of continuing incapacity for work for that first report.
46 Mr Kossman was requested to consider the work relationship issue two months later, which he did in a follow-up report dated 8 October 2015. He addressed the matters raised in the Notice of Rejection dated 6 January 2015. That Notice did specifically raise the issue of the injury being allegedly due to gardening on the weekend prior to 16 June 2014.
47 Mr Kossman states in his report:-
"considering the physical work of Mr Lee with the Ballarat City Council over 35 years I am of the opinion this has led to the development of L3-4 to L5 S1 degenerative disc disease in his lumbar spine. It was only a question of time that Mr Lee was suffering from acute exacerbation of lumbar back pain and right lower limb sciatica secondary to a large L4-5 right sided disc prolapse impinging on the right L5 nerve route and bilateral L3-4 and L4-5 facet joint arthropathy."
48 Mr Kossman goes on to state:-
“in the letter of CGU dated 5 January 2015 it is alleged that Mr Lee's acute onsets of lumbar back pain occurred outside of work. Should this be the case then it has to be seen as an acute onset of pain in the setting of degenerative changes in his lumbar spine which were caused by his physical employment. Without these degenerative changes Mr Lee most likely would not have suffered from the acute onset of his lumbar spine. Therefore I am of the opinion that Mr Lee suffered a lumbar spine injury which was arising out of in the course of his employment with the City of Ballarat and his employment was a significant contributing factor to his lumbar spine injury, need for an operative intervention and present condition” (emphasis added).
49 He further goes on to state that Mr Lee's current incapacity for work was caused, or materially contributed to, by his back injuries.
50 The only other evidence was an independent medical examiner report from Dr Michael Lucas, who states that he is an occupational physician. He examined Mr Lee on behalf of the VWA's authorised agent shortly after the lodging of the claim. He examined Mr Lee on 19 December 2014. He had the claim form, medical certificates and employers report but no relevant medical background material. He took a history of back issues for ten years with episodes of "pinching" discomfort in the low back from time to time leading to medical review and physiotherapy.
51 There had been a significant "exacerbation" six to seven years prior for which he had submitted a worker's compensation claim. He also told Dr Lucas that his back problems caught up with him somewhat in June 2014. On 6 June 2014 he woke up with significant increase of back pain to the right leg. He had recalled during the weekend doing some tasks on a ride-on mower and recalled having some minor increasing discomfort the following day.
52 Further, in the report he states later that after performing "office based tasks" for a week he was stood down. Towards the end of November 2014 he had again awoken with increased low back discomfort and significant right leg pain which was different from previous episodes. He had also had foot sensory alteration. Mr Lee later underwent L4-5 microdiscectomy.
53 The only specific work history taken by Dr Lucas was a single sentence namely "he outlined his work duties involved predominantly backhoe operating". However, Dr Lucas did refer to the allegations of work causation in the claim form that I previously set out. He also referred to both MRI findings.
54 Dr Lucas said that the imaging indicated multi-level degenerative pathologies might reasonably be viewed as within normal age related expectations. He said the findings at L4-5 of central left paracentral focus protrusion which contacted the descending L5 nerve roots bilaterally might reasonably be viewed as an acute exacerbation of an underlying degenerative condition, for which factors in proximity to increased symptom awareness might reasonably be reviewed as significantly contributing. Because Mr Lee was not participating in the workplace at this time, there was "limited" indication of significant employment contribution to the indicated L4-5 disc protrusion findings and events.
55 Thus, Mr Lucas seemed to be saying that Mr Lee had essentially pre-existing age-related spinal degenerative changes. He considered the allegation of work injury as being limited to the event when the disc protrusion came in to contact with the descending L4/L5 nerve roots bilaterally and looked at any work contribution in light of events that were approximate in time to that event.
56 That completes the evidence before me.
57 Counsel for Mr Lee submitted that Mr Lee's employment with the Council over the years since 1982 had aggravated and accelerated his spinal degenerative changes and that employment was a significant contributing factor. Mr Lee's evidence was that he had back pain associated with driving and using a backhoe, especially with the jolting and jarring because of the lack of suspension. His 2006 WorkCover claim had been accepted. He urged me to accept Mr Lee's evidence that at no time did he attribute gardening as being a cause of back pain in June 2014.
58 Opposing Counsel pointed to the close similarity of words and phrases used in at least three of the work mates' statements as to the events on 7 October 2014. In any event, any potential contribution by gardening was limited to the flare up in June 2014. Mr Lee had been treated on a number of occasions for back problems prior to June 2014. He said that Dr Lucas only looked at the claim being limited to a close temporal connection to the sudden deterioration in November 2014 leading to surgery.
59 Counsel for the Council submitted that Mr Lee's prolapse occurred in circumstances when he attempted to get out of bed on about 21 November while in holiday in Tocumwal. Thus, there was no significant contributing factor by employment to that episode and thus no link between employment and his spinal degeneration. His GP had certified him fit to return to work on normal duties before that.
60 Mr Lee had discrete periods of treatment over the years but had returned to work on normal duties in between. The June 2014 episode of back pain and incapacity had occurred when he was gardening away from work, as related to the five work mates and set out in their statements.
61 That completes Counsels’ submissions.
62 I think it is important in this case not to confuse injury with the consequences of injury. I note the observations of Mr Justice Ashley in Grech v Orica [2002] 14 VR 602 at paras [55 – 58]. Notions of injury and resultant incapacity are not the same thing. They can arise together at the same time or with some period in between. Also, there may be two or more causes of injuries that may be legally sufficient causes of the same injuries (see, Grech v Orica (supra) at [57]).
63 Also, I note that Dr Lucas refers to the episode in November 2014 in which the prolapse impinged upon the right nerve root as an “exacerbation”. Certainly, Mr Kossman talks about an “exacerbation” as well. This has probably been used in the medical sense of the word rather than the legal sense as set out in Federal Broom v Semlitch (1964) 110 CLR 626 at 634 in which it was said "as applied to a disease exacerbation is properly used to refer to the effects which the disease produces rather than to the advance of the disease itself in a more serious state of its development".
64 Opposing Counsel accepted that Dr Lucas was not talking about “exacerbation” in the legal sense and this should not be read in to his use of that term in his report.
65 The claim proceeded on the sole basis that throughout the course of Mr Lee's employment as a backhoe operator for approximately 32 years until June 2014 he had sustained injury to his back by repetitive jolting and jarring of his back driving such earth moving equipment and also by lifting heavy pipes and materials. It was alleged his employment aggravated and accelerated his spinal degeneration leading to his spinal surgery and that his employment was a significant contributing factor to such aggravation and acceleration.
66 Dr Crook and Mr Kossman made specific reference to this basis of the claim. However, Dr Lucas, apart from saying that the degenerative changes shown in MRI were age related, really confined his opinion to the work relationship of the event that occurred on or about 21 November 2014 at Tocumwal. Mr Kossman and Dr Crook considered that aspect as well.
67 Opposing Counsel did not cross-examine Mr Lee on his work activities or history as I have summarised as at the start of this decision. Also, he largely did not dispute the periods of work, nature of treatment and by whom he was treated over the years. Rather, he cross-examined on the actual frequency of treatment, especially by his GP and physiotherapist and tried to emphasise discrete periods of incapacity and treatment of his lower back problems. Obviously, he also cross-examined on the alleged gardening cause of the June 2014 episode of heightened back pain and subsequent incapacity for work.
68 Counsel also appeared to accept most of Mr Lee's evidence as to the relatively recent periods of incapacity, treatment and the fact that the defendant paid for those treatments and incapacity periods. In particular, Mr Lee was treated by the Council's physiotherapist for back pain in July 2005 in which he gave a 25 year history of low back pain attributed to his position and posture as a backhoe operator. His workers compensation claim for "back pain/strain" leading to four weeks total incapacity was also accepted in 2006. He mentioned the low back pain to Council's physiotherapist again in 2006.
69 Opposing Counsel put to Mr Lee he had only seen his own physiotherapist for a back complaint three times between June 2013 and September 2013 in the period between 2006 and 2014. Mr Lee disagreed that he had not complained about his back to his GP since 2003 and also that he had seen his physiotherapist more frequently. Of course, I had no material at all from that physiotherapist or Dr Crook's clinical notes. Dr Crook does not mention whether there were attendances for back pain prior to 16 June 2014, though he does relate a very detailed history of Mr Lee's implicated work duties and activities.
70 I was a little surprised that Mr Lee would not have seen his GP in 2005 and 2006 about the times of treatment and incapacity arising from his complaint of work related injury in which he was off work for about month. Mr Lee gave a very long consistent history of being exposed to constant and persistent jolting and jarring to his back over at least 32 years in driving and operating as a backhoe operator. Apart from that, he also had to twist and turn his lower back while operating the backhoe.
71 Further, apart from doing that he performed other work activities, especially towards the end, involving the lifting and carrying and manoeuvring of heavy pipes with other workers. All these work activities were not disputed in cross-examination and no contradictory evidence was called in that regard. On any view of his evidence in this regard, a 30 year plus history of these activities would appear to be rather compelling evidence of implicating work, at least in his symptomology.
72 On the evidence there are relevant periods of incapacity and treatment from 2005 onwards to 2014. In his report Dr Lucas does not consider this aspect of Mr Lee's claim, despite it being set out in the claim form. He merely comments that the changes shown on both MRIs "may reasonably be viewed as within normal age related expectations".
73 He does not consider the issue of any possible “aggravation, acceleration, exacerbation,” etc by his work. Rather, he only considers the claim on the discrete basis of direct work involvement in the episode of significant deterioration of Mr Lee's lower back on about 21 November 2014.
74 I accept two different radiologists reported on each MRI six months apart. However, the second MRI would appear to show a deterioration in the low back by 25 November 2014, especially at the L-5 level. On operation Mr Tange found, amongst other things, a large disc prolapse extending down along the nerve root. As for the June 2014 episode of back pain incapacity, there are the conflicting versions as to whether Mr Lee implicated the gardening and the flare up of pain which occurred on about 16 June 2014.
75 The five statements of workers were tendered without objection or cross-examination. There may well be some marked similarity between at least three of the work mates' statements as to what Mr Lee allegedly said, and what he did not say, on that day in October 2014. However, this does not address the allegation by Mr Montgomery of a similar conversation on
25 September 2014 and 2 October 2014 as well. These are separate to the message to him from Mr Ives of a similar allegation of a conversation between Mr Ives and Mr Lee prior to 25 September 2014.
76 Mr Lee did state that he told Mr Ives only of having been on a ride-on mower on the previous weekend. There is also the allegation of a separate similar conversation as well by Ms Grainger at a different meeting in about July or August 2014.
77 At the very least, I am satisfied he did relate some form of back pain to some gardening activity on the weekend before 16 June 2014. In the overall context of the claim I do not believe that such a finding defeats his claim. He is not an expert medical practitioner and his back pain settled considerably over the next few months sufficient for Dr Crook to certify him fit to return to work wearing a back brace.
78 Also, it is important to note that the claimed injuries in this case are not the episodes of severe back pain at home on 16 June 2014 or at Tocumwal on or about 21 November 2014, or even the episode of foot drop at home on the latter date. Rather the relevant consideration pursuant to s.82(2C)(c) is whether his employment "was a significant contributing factor to the injury", that is a recurrence aggravation, acceleration, exacerbation of the pre-existing injury or disease, namely the degenerative changes to the low back.
79 Similar situations were considered by Mr Justice Fullagar in Darling Island Stevedoring v Hussey (1959) 102 CLR 482 at p.506 in which a worker had died of a coronary occlusion shortly after arriving at a deemed place of employment.
80 Mr Justice Fullagar stated:-
"It is wrong to regard the coronary occlusion itself as the relevant disease. Disease is the atheroma or sclerosis or other morbid condition or vascular condition which culminated in the occlusion."
81 Similar observations could be made in this case as to the difference between spinal degenerative disease and a disc prolapse. To put it in another way, a worker with an accepted serious workers compensation back injury would not normally lose his compensation entitlements if he suffered a flare up of back pain after bending at home if this was attributable to his work related condition.
82 In the present case, the real issue is whether through the course of his 32 years employment, Mr Lee's spinal degenerative changes were aggravated and/or accelerated” by his activities as a backhoe operator, and to a lesser extent as a labourer handling pipes.
83 I do not believe that exacerbation in its strict sense, recurrence or deterioration are really relevant in this case. Also, employment must be a “significant contributing factor” to such aggravation or acceleration.
84 The words "aggravation or acceleration" in the workers compensation context have been considered by many courts, including the High Court, in Australia over the years.
85 A good example is that of Mr Justice Windeyer in Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537 at 593 in which he stated,
"’aggravation’ means, I think, that an existing disease has been made worse, not that it simply has become worse. ‘Acceleration’ I have previously said and venture to repeat ‘probably presupposes a progressive disease, one that, running its ordinary course, increases in gravity until a climax, such as death or total invalidism, is reached - its progress to this end result not being ordinarily susceptible to being permanently arrested, but susceptible of being hastened by external stimuli’: Federal Broom v Semlitch. To this view I adhere."
86 I accept Mr Lee's evidence that over the years he has developed back pain while undertaking his work duties. This pain has not been simply present while working and ceasing after finishing work on any particular day. I accept his evidence that the low back pain has worsened over the years requiring him to seek treatment and had periods of incapacity, which I have outlined at least in 2005, 2006, 2013 and 2014, as related or agreed, by the Council.
87 He has been over the years, I believe, a very stoic person in continuing to work on normal duties in the face of such serious symptoms. I think that the major problems found on surgery to his back speak for themselves. Just prior to surgery he was having very little treatment at all. Mr Kossman opines that his work "led to the development of L3/4 to L5/S1 degenerative disc disease" and later that "degenerative changes in his lumbar spine which were caused by his physical employment". I am not sure that Mr Kossman means “caused” in the strict sense of the word. I certainly do not make any such finding.
88 Clearly, there were some age related factors in the degenerative changes which had been existing for some time. However, I do find that Mr Lee's back condition is not just a reflection of any age related degenerative changes to his lumbar spine.
89 I take in to account his continuing and worsening pain to his low back, especially from 2005 onwards. In the context of performing normal duties involving consistent and repetitive jolting and jarring of the spine while driving, twisting and turning while operating and to a lesser extent lifting, carrying and manipulating heavy pipes, I find his employment has had a lasting effect on his underlying condition.
90 His degenerative changes have progressed beyond that purely on an age related basis. The continuing trauma to his back over about 32 years of his employment as I have outlined, did on the balance of probabilities accelerate the underlying condition and aggravate it at least to the point of being symptomatic to a significant level on a continuing basis. I accept Mr Kossman's opinion that the state of his low back at the time of the surgery should be seen as part of the progression of those degenerative changes rather than the discrete incident in itself.
91 I find that those degenerative changes were aggravated and accelerated by his work activities over some of those 32 years as a backhoe operator and labourer.
92 Based on my above findings, whether or not he suffered from pain while gardening in June 2014, I still find that the state of his back at that time was the result of such aggravation and acceleration of his pre-existing degenerative changes. I accept Mr Kossman's evidence in that regard.
93 I also find that employment was a significant contributing factor to such aggravation and acceleration. I take in to account the dicta in cases referred by Mr Justice Ashley in Popovski v Ericsson (1998) VSC 61 at paras 58-61 especially as to his view that “significant” means "of considerable amount and effect" as described in Allman v Major Finance (1997) VCC 10. Considering s.5(1B) of the Act as to the factors to be taken in to account, my previous discussion of the facts and medical material has covered most of those aspects especially paragraphs (a) to (c) of s.5(1B).
94 I do not accept Dr Lucas' view that the state of his low back as at the time of the surgery reflected his age-related degenerative changes alone. I do not believe that he would have progressed to such stage of being incapacitated about the same time if not for the work aggravation and acceleration.
95 As to paragraphs (e) to (g), there is either no evidence before me or such factors are not relevant to this specific case.
96 Mr Lee is therefore entitled to an order for weekly payments and reasonable medical and like expenses from 16 June 2014 onwards and continuing.
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