Mehler v Electrolux Home Products Pty Ltd
[2010] VCC 1962
•1 October 2010
| IN THE COUNTY COURT OF VICTORIA | Unrevised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
Case No. CI-09-06031
| LEE MEHLER | Plaintiff |
| v | |
| ELECTROLUX HOME PRODUCTS PTY LTD | Defendant |
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| JUDGE: | HER HONOUR JUDGE COHEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 20, 21 and 22 September 2010 |
| DATE OF JUDGMENT: | 1 October 2010 |
| CASE MAY BE CITED AS: | Mehler v Electrolux Home Products Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1962 |
REASONS FOR JUDGMENT
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Catchwords: serious injury application; aggravation to pre-existing spinal degeneration; no time off work or modification of duties with defendant; exacerbation years later causing increased symptoms and incapacity for work; whether aggravation caused permanent impairment; whether aggravation caused serious consequences; leave sought in respect of pain and suffering and loss of earning capacity; s 134AB Accident Compensation Act 1985
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B. Collis QC with | Vincent Verduci & Associates |
| Mr M. Ruddle | ||
| For the Defendant | Ms M. Britbart with | Hall & Wilcox |
| Ms C. Melis | ||
| HER HONOUR: |
1 Mr Lee Mehler worked for the defendant and its predecessor, Email Pty Ltd, for almost 25 years as a domestic appliances technician. When he accepted a redundancy offer in November 2001 he had been suffering from pain in his neck and low back for some months, for which he had sought medical attention in July 2001, but had not lost any time from work. In December 2007 his low back symptoms were exacerbated, and he has been significantly more disabled by them ever since.
2 He applies for leave to issue common law proceedings for damages in respect of injury to his spine which he alleges results from his employment with the defendant. To obtain leave, he must satisfy the Court that he suffered a “serious injury” within the requirements of s.134AB of the Accident Compensation Act 1985. Owing to legislative changes over the past two decades, he confines his case to employment duties between 20 October 1999 and November 2001 as having caused a compensable injury. He alleges that his duties during that period caused injury to his spine by way of aggravation to already existing degenerative changes, and that that aggravation to his spinal condition resulted in “serious permanent impairment of the function of his spine” such as to satisfy the definition of “serious injury”.1 He seeks leave to make a common law claim in respect of both pain and suffering and loss of earnings damages.
3 The defendant does not dispute that something occurred in the months leading up to July 2001 which caused an aggravation of symptoms in the plaintiff’s lower back and neck. It argues, however, that if his employment duties caused or materially contributed to that aggravation, then the aggravation and its consequences were only temporary. It points to his having a prior history of back pain, with some sciatica and leg pain, able to be
Sub-par.(a) in definition of “serious injury” in s.134AB(37) Accident Compensation Act 1985.
managed with non-invasive treatment including physiotherapy and anti- inflammatory medication, and resolving without any noticeable interference with his ability to work. It argues that the aggravation reported in July 2001 was no more than another such episode, which was also able to be treated with physiotherapy and medication, without causing him to lose time from his work, and which also resolved, or at least settled to the extent that it caused no significant incapacity for his work or his main social or recreational activities. Finally, it argues that the December 2007 exacerbation was not causally connected with the 2001 aggravation, but even if it was, the contribution was small and it did not so seriously affect the plaintiff as to satisfy the definition of serious injury, in that its consequences cannot fairly be described as “more than significant or marked” or “at least very considerable” when compared with other possible degrees of impairment from back injuries, either as to pain and suffering or as to loss of earnings2.
4 Mr Mehler’s credit was not attacked by the defendant. My impression of him giving oral evidence was that he was an honest witness, genuinely trying to answer questions to the best of his recollection. I accept his evidence overall as reliable, although as an historian he was quite vague, especially on time frames and dates, and to that extent less reliable. I did not consider him to be deliberately embellishing or exaggerating his story or his symptoms, and I ascribe what I do find exaggerated in his affidavits3 to be the wording decided upon by whoever drafted the affidavit. Finally in this regard, I note that the defendants’ court book index4 listed video surveillance of the plaintiff brought into existence for the dominant purpose of use in litigation since the determination and for which privilege was not waived. The defendants’ counsel refused to admit when called upon to do so5 that any such video
S 134AB(38)(c)
Eg that he suffers “constant pain” in his neck – paragraph 6 in affidavit of 11 August 2010.
Exhibit P
T 91-93 (Although transcript inaccurately does not mention video surveillance at T 91, lines 7-8 I distinctly recall it being said, and giving rise to the following debate)
existed. If it did not existed then it should not have been listed in the court book under a description of the purpose for which it came into existence. I infer that some did exist, and that the fact that none was shown during the hearing reflects that it showed nothing to contradict the plaintiff’s version of his activities over the last year or so.
Plaintiff’s personal and work history
5 Mr Mehler is now aged 65. He was born in Canada where, after leaving school, he commenced but did not finish a course in engineering. He engaged in various jobs, mainly in the nature of factory work, but also being trained by his father in maintenance and repairs to white goods. He came to Australia in 1973 and worked in various states at various unskilled jobs until he settled in Melbourne.
6 In about 1975 he obtained employment with Email Pty Ltd, as a technician repairing domestic household appliances. Most of his duties were to visit residential premises to repair refrigerators, washing machines and other electrical goods. Apart from a two year period in the 1970s when he returned to Canada, he remained in that employment (Email having been taken over by the defendant in approximately 1998), until he accepted a voluntary redundancy package in November 2001. I am satisfied that repairing appliances such as refrigerators and washing machines in domestic premises often required working in awkward or cramped physical positions, bending and twisting, and manoeuvring or lifting heavy appliances.
7 Mr Mehler first experienced what he describes as “back pain” some time in the 1980s. He says that prior to that, in the early to mid 1970s, when working with heavy appliances he would occasionally experience what he called “twinges” in his back that would not last more than a day or two. At that stage he was in his late twenties or early thirties. He recalls suffering what he calls back pain – meaning it lasted longer - some time in the 1980s. He says that this was pain in his low back and affecting his legs as well, and lasted for some months so he attended his general practitioner. He was recommended physiotherapy and recalls that he did go for physiotherapy for a couple of months. It is unclear to me whether he lodged a workcare claim6 but if he did it would have been in respect of this treatment. He does not recall having any time off work. He recovered from that episode, ceasing physiotherapy, and says that after that period he would not notice back pain unless he did something that caused him to experience a twinge.
8 Although Mr Mehler’s recall of dates and timing is somewhat vague, I am satisfied that it is more likely than not that his memory of these events relates to the recorded attendance on his general practitioner in 1987, when the clinical note7 records “bilateral sciatica”. He was sent for an x-ray8, which was reported as showing moderately severe spondylitic changes present at L2/3 and L5/S1 levels where there is significant reduction in intervertebral disc space, width and marginal osteophyte formations. Disc space width elsewhere was preserved, and the sacroiliac joints normal.
9 According to Mr Mehler, the next back pain – that is pain which persisted for more than a day or two - was in the early 1990s, and I take this to be the period around February 1990 when records show that he again attended his general practitioner’s clinic, and was sent for a CT scan of the lumbosacral spine by Dr Templer. The report on that scan concluded that the L5-S1 disc was markedly degenerated and there was an associated small bulge of the annulus, and the L2-3 disc was moderately degenerated and there was also osteoarthritis.
10 Again, after the February 1990 period of symptoms, he did not take time off
He said in his first affidavits that he did not para 6 of affidavits of 2/7/09 and 15/1/10, but his counsel opened that he did.
T 47- lines 26-7, according to the oral evidence of Dr Templar
Exhibit B, 10 May 1987.
work and again whether he lodged a workcare claim for physiotherapy is unclear. He attended physiotherapy until the pain was relieved. It was a further 11 years before he again attended his general practitioner in respect of low back pain, and in the meantime he claimed no days off work as a result of any back pain.
The subject injury
11 According to Mr Mehler, he next experienced symptoms of pain in his back in about the year 2000 and into 2001 (although at one stage he said it had started in late 1999). There was no specific incident which caused this, but the pain persisted to the point where he felt it serious enough to consult a doctor, and he again attended the Lilydale clinic. He was also suffering neck pain at that time. On 23 July 2001, he attended at his general practitioner’s clinic, and there saw Dr Osman who recorded “aggravation of lower back pain and left sciatica; on and off for months; no injury to precipitate; also neck pain”9. Examination revealed a reduced range of movement of the cervical and lumbar spines to 80 per cent of the normal range. Anti-inflammatory Voltaren was prescribed and x-rays were arranged.
12 This time there was also an x-ray of the cervical spine – which showed moderately severe spondylitic changes present at C6-7 level, characterised by loss of disc height together with marginal osteophytic lipping. An x-ray of the lumbosacral spine was reported as showing advanced disc degenerative changes present at L2-3 and L5-S1, where there was significant loss of disc height together with anterior marginal osteophytic lipping. The remaining disc spaces were preserved. The sacroiliac joints and sacrum had a normal appearance10.
Exhibit C
Exhibit B, 24 July 2001
13
The Lilydale clinic records11 reflect a further visit to Dr Osman on 25 July 2001 where the x-ray findings were explained and physiotherapy was arranged. There is no further notation of an attendance by Mr Mehler at this clinic until January 2003, although there is a record of a phone call by Mr Mehler to Dr Osman on 14 January 2002, recording that he had not missed work12 but was still having physiotherapy and that he had decided to claim his back pain on WorkCover.
14
Mr Mehler said that in addition to ongoing physiotherapy, he was also taking prescribed Voltaren. He was cross-examined about this but ultimately from his and Dr Templer’s evidence I accept that it was a practice at that clinic to allow known patients with chronic conditions to attend and fill out a form requesting repeat prescriptions which would be reviewed by the usual treating doctor that night, and written without seeing the patient on each occasion. I am satisfied that Mr Mehler probably did continue to take Voltaren over the 18 months or so between doctors’ consultations, although the frequency and dosage is unknown, and I infer that it was not taken constantly or further consultations would have been required by the doctor. He also continued to attend physiotherapy although its frequency is also unclear.
15
Mr Mehler submitted a WorkCover claim in July 2001, which was accepted, and I assume that the medical, medication and physiotherapy expenses were paid. He did not take time off work as a result of his back pain over the following months, nor did he ask to be relieved of full duties. In other words, he apparently managed to perform his quite heavy regular work for some months after suffering the aggravation of back pain and additional neck pain which had sent him to Dr Osman in July 2001. I accept that he managed that
Exhibits C & D
Meaning unclear because this was only tow months after redundancy from defendant’s employment and before looking for alternative work
with the assistance of physiotherapy and Voltaren, although not required
constantly.16 In November 2001 redundancy packages were offered to him and a number of other repair technicians due to a downturn in the industry. I accept that the ongoing symptoms in his back and neck were part of his reason for accepting that package, which was apparently in the order of approximately $70,000, and enabled him to take a rest from any work for some months.
17 Approximately eight months after accepting the redundancy package, he started looking for alternative work, motivated by financial needs, and he found work quite quickly from July 2002. Over the next 5 ½ years he worked on a casual but full-time basis, at various factory jobs, and mainly through a labour hire agency, with some breaks in between jobs. He says, and I accept, that he chose only jobs which did not involve heavy lifting or much overhead work or strain on his back, and, if he found himself in a job that was too heavy or too dirty, he simply quit that job. He estimated that between approximately July 2002 and December 2007 he worked overall for approximately three- quarters of that period, engaging in full-time work when he did work but with breaks in between jobs.
18 Over the years 2002 to 2007 Mr Mehler did require medical attention for his back pain from time to time. In January 2003 he attended the clinic in respect of his back and neck pain, saw Dr Ubhi, and agreed to try acupuncture which he underwent on several occasions over the next few months, with some success in relieving pain. He next attended Dr Osman in May 2004 and was prescribed anti-inflammatory medication and Ducene. He continued to see Dr Osman intermittently, and was given further prescriptions for anti- inflammatories. In mid 2005 there was attendance reflecting a flare-up and he was not working at the time. He also attended the physiotherapist at times of flare-ups, but not regularly over those years. I accept that he also walked and did gym exercises to maintain his fitness and relieve pain and stiffness.
19 He was able to continue to play golf – a favourite recreation – and attended a gym regularly where he exercised, including on instructions from his physiotherapist. Both of these activities were a long-standing part of his social life, and I find that he managed to maintain the social side of them even if at times restricted in engaging as fully in the physical activities as he used to do.
December 2007
20 During 2007 he attended his doctor’s every three or four months in relation to his back, and obtaining prescriptions for Voltaren and Ducene. He does not say in his affidavits what brought about his attendance on 23 December, 2007. On that date, he visited his general practitioner’s clinic (by then called Lilydale Medical Centre) where he saw Dr Templer rather than Dr Osman. He is recorded as complaining of worsening left-sided sciatica following a trip to a physiotherapist. On cross-examination Mr Mehler explained this as “ Yes, I had physio and I felt really good after the physio, but as the day went on, it got worse.”13 In accounts to some medico-legal examiners he said that in the weeks or months leading up to December 2007, he noticed that his back pain was causing him more difficulty, and he found himself struggling to keep working at the factory jobs he had been doing.
21 As Dr Templar considered that he could have suffered a disc injury he was sent for a CT scan of his lumbar spine. Panadeine Forte tablets were prescribed in addition to the anti-inflammatory, Arthrexin. On the following day, a further prescription for Panadeine Forte was given.
22 The CT scan14 was reported as demonstrating multi-level intervertebral disc space degenerative disease most severe at L2/3 and L5/S1, and a prolapse and spinal canal stenosis at L4/5 with mass effect upon the left L4 nerve, which was highly likely to represent a small fragment of a sequestered disc.,
T 80, lines 15-21
Exhibit B, 24 December 2007
and compression upon the exiting left L5 nerve.
23 Dr Templer noted that Mr Mehler was to continue current medications and see Dr Osman later in the week as he wanted to put this on WorkCare, which Dr Templer gathered was related to some previous injury. Although dr Templer made clear under cross-examination that he does not regard himself as available within his practice to continue to treat patients on Workcover, but transfers them to other doctors in the clinic with occupational medicine concentration, Mr Mehler chose to continue to see him rather than Dr Osman.
24 On 31 December 2007, the record of seeing Dr Templer indicates that he slowly improved. However, when referring to previous x-rays of 2001, symptoms were at a different level and he was to be reviewed in ten days. On 11 January, Dr Templer saw him noting, “WorkCare: the patient is making a claim as an aggravation of the previous injury through another employer than the one he works for”, and on Friday 25 January 2008 certificates for Social Security and WorkCare were completed, and it was noted that the patient seems to be making a slow recovery and was to be reviewed in one month.
25 There were further notations of prescriptions during February for both Arthrexin and Tramadol, and then on 28 February, Dr Templer records that the patient continues to improve, however still feels he is unable to work so will be reviewed in one month. It was noted he walks quite comfortably. On 25 March, it was noted that he was to have a return to work trial where he would not lift greater than ten kilograms or be involved in repetitive bending or stooping and further prescriptions for Arthrexin, Tramadol and Ducene were given.
26 Mr Mehler did not in fact return to work at that stage or since.
27 Dr Templer was called for cross-examination. He agreed that he had completed a questionnaire for Workcover in January 2008 and in both it and his progress notes he records that the patient reported feeling worsening left- sided sciatica following physiotherapy treatment, and that he recommended ceasing physiotherapy. He said he had only been treating Mr Mehler for his back pain and had not had complaints of neck pain over the period since December 2007. He resisted the suggestion that he had significantly increased the patient’s medications in December 2007, but agreed that he had changed the medication regime ceasing Voltaren and commencing another anti-inflammatory, Arthrexin, and Tramadol for pain.
28 Owing to the significant pathology shown on the December 2007 CT scan, Dr Templer referred Mr Mehler for neurosurgical opinion to Mr Gavin Davis. Mr Davis found15 Mr Mehler to have multiple complaints, of pain in the back, neck, had shoulders and arms and legs, and noted that the CT scan showed marked degenerative change with loss of disc height and bony osteophytes at multiple levels. Noting the patient’s diffuse clinical pattern16 he did not think he was suited to surgery and referred him instead to Dr Clayton Thomas.
29 Dr Clayton Thomas saw Mr Mehler in July 2008 referred by Mr Davis. Mr Mehler gave him a history17 of developing pain initially in the 1980s, then the 1990s and of it returning in 2001 and then in October/November 2007, although up to that time the pain usually settled after treatment (physiotherapy and chiropractic care). In July 2008 he was complaining of daily cervicogenic headaches, neck pain and stiffness, lower back pain, left leg pain and pins and needles and numbness below the knee. On examination spinal movements were about 20 to 60% of normal with no movements reproducing leg pain. Left knee and ankle reflexes were less than the right. Dr Thomas thought he was suffering predominantly significant symptomatic spondylosis to his lumbar spine. He started him on medication for the headaches, and was not optimistic about his ability to return to work with his restrictions and
Exhibit H
I note than none of the medico-legal examiners appears to have found his complaints diffuse or other than related to the pathology evident on radiology.
Exhibit F, report to Mr Davis, 7 August 2008.
given his age and the fact that his last work had been through a labour hire company. Dr Thomas recommended he be entered in a program through the Victorian Rehabilitation Centre, but there had been no contact by the time of review in September 2008 when he still complained of headaches and neck stiffness.
30 Mr Mehler then did undergo assessment and a rehabilitation program – functional restoration course- through the Victorian Rehabilitation Centre in February and March 2009, which he says helped relieve the left leg symptoms, and him to learn how to cope with his back pain including avoiding what provoked it, and which he found useful. Reports from that program18 confirm that he was to continue with a home-based exercise program which he has done.
Medical opinions
31 Mr Gavin Davis, who saw Mr Mehler for neurosurgical opinion in June 2008, considered that although the CT scan of December 2007 had demonstrated multi-level degenerative change with significant loss of disc height and multiple bony osteophytes, the complaints of numerous aches and pains were indicative of a diffuse pain syndrome.
32 Dr Clayton Thomas, consultant in Rehabilitation and Pain Medicine, had treated Mr Mehler from mid-2008 to 2009, saw him again for medico-legal opinion in July 201019. Dr Thomas considered him to be suffering from symptomatic spondylosis, but that his condition had worsened from when he had previously seen him, and that he now has nerve root encroachment and damage to the left L5 nerve root. He noted the history of back pain over many years, and said that a component of work that took place between 20 October 1999 and November 2001 was responsible for the plaintiff’s current medical
Exhibit G
Exhibit F, report 30 July 2010.
condition, but this would be a very small component. He said basically he has had progressive degenerative problems for many years with exacerbations along the way, and there had not been any one specific incident that had led to a dramatic worsening. He noted that the problem is that he now has permanent nerve damage and hence surgical intervention will not salvage this situation. Continuing with an exercise regime is appropriate.
33 The plaintiff relies on a medico-legal report from Mr M.A. Kahn dated 28 May 2010.20 Mr Kahn does not appear to have been provided with any of the radiological reports other than that for the CT scan of December 2007. He does not appear to have read any other medico-legal reports, only being provided with reports of Dr Templer of May 2009, Dr Clayton Thomas of 11 June 2009 and the Lilydale Medical Centre (Dr Osman) 15 June 2009. I also note that he has approached the issues on the basis of the overall long- term employment duties with Email then Electrolux, rather than the limited period from October 1999 to November 2001.
34 Nevertheless, his findings on physical examination were of reasonably good movement of the cervical spine, associated with some discomfort in the right side of the neck, and lumbar spine symptoms described as intermittent. He diagnosed flare-up of facet joint arthropathy in the lower part of the back in a condition of multifocal disc degeneration and spondylitic condition of the spine. He also found development of discogenic pain in the L4-5 level with irritability and referred pain down along the L4 nerve root but without radiculopathy and considered there had been musculoskeletal and ligamentous strain to the cervical spine that has flared up pre-existing degenerative changes in the cervical spine from the work injury.
35 He considered that taking into consideration the long period of his employment, the work between the periods described had been the major
Exhibit J.
source of contribution to the plaintiff’s current medical condition. He felt the long-term prognosis was guarded with a slim chance of him returning to suitable work in the future.
36 Mr Rodney Simm examined the plaintiff in July 2008 for the defendant.21 At that stage the plaintiff, having ceased work about six months earlier, said he was suffering constant lumbar back pain which had improved significantly since December of the previous year and he believed the improvement was continuing. He had pins and needles into the left foot and pain radiating down the right thigh to the knee but no significant symptoms below the right knee and pain increased with forward bending, prolonged standing and prolonged walking but he was able to sit comfortably and able to walk for up to 40 to 50 minutes. He had a bit of pain in the base of the neck posteriorally but suffered daily headaches and sensations of dizziness that he attributed to the neck. On physical examination his cervical spine movements were only mildly restricted and associated with tightness rather than pain. The thoracolumbar spinal movements were guarded with movement mildly to moderately restricted and associated with some discomfort in the back but no localised tenderness. There was a depressed left knee reflex but a brisk right one and normal ankle reflexes. He had diminished sensation over the medial aspect of the left calf in the left L4 distribution and mild changes to sensation over the lateral aspect of the left foot in the left S1 distribution.
37 Mr Simm reviewed the radiology from 2001 and 2007. His opinion was that the plaintiff had longstanding multilevel degenerative lumbar pathology with chronic low back pain and referred limb symptoms. There were signs of left L4 radiculopathy but no objective signs of S1 radiculopathy although sensory change in the distribution. The degenerative pathology in the lumbar and cervical spines he felt was constitutional. Considering the prolonged period of
Exhibit K.
employment with Electrolux, and the nature of the work duties performed with that employer, he believed that there was unresolved work-related aggravation of the degenerative pathology arising from the nature of his employment. His opinion, however, did not differentiate the period only after October 1999 with Electrolux.
38 He also noted Mr Mehler saying that his severe lower back pain and lower limb pain occurred within 24 hours of manipulative physiotherapy treatment in December 2007 and he felt it more likely that there was a causal relationship between the treatment and the increased pain and that was consistent with Dr Templar suggesting physiotherapy treatment be suspended and that he have total rest. He did not recommend further physiotherapy treatment for the lower back or the neck given the underlying degenerative changes but felt that the plaintiff’s active self management and pain management, including regular exercise in a gymnasium and riding an exercise bike at home were appropriate and had the potential to have a favourable long-term influence on his condition. He considered that the plaintiff had unresolved aggravation of longstanding advanced degenerative cervical and lumbar disc degeneration which, although constitutional, his long-term physical demanding employment with Electrolux would have led to an aggravation which had not resolved. He felt he was probably incapacitated for work and would remain so considering his age and limited capacity to undertake physical employment.
39 Mr David Brownbill, consultant neurosurgeon, provided reports in August and September 2010.22 On examination he found the plaintiff’s cervical spine movements full for his age and freely performed with no upper limb abnormality, walking and turning was done well and active thoracolumbar spinal movements were full for his age and freely performed. Reflexes were present, powerful and equal in all muscle groups in the legs, tone was normal
Exhibit L.
with sensation decreased over the inner and outer aspects of his lower left
leg. He discusses the radiological reports and reports of Dr Clayton Thomas.40 Mr Brownbill considered that the probability was that Mr Mehler has constitutional degenerative changes of the spine (both neck and back), however noting the descriptions of his work duties over 24 years as an appliance technician, he considered that those activities have also been a significant contributing factor. He anticipated that there would be ongoing pain indefinitely and that the plaintiff in the future needed to avoid activities involving heavy lifting, forced spinal or cervical spine mobility or repeated bending or prolonged standing or sitting. In a follow up report he discussed what specific employment capacity the plaintiff had for the future, noting that at his age and his work having always involved extensive physical activity, and given the radiologically demonstrated multiple level degenerative changes of his cervical and lumbar spines, on probability and realistic terms from a neurosurgical point of view he would not be able to pursue alternative employment.
41 Although Mr Brownbill sets out in his first report that the circumstances of injury are that “in the late 1990s without any specific accident or injury, he noted again the onset and then increase of low back pain (with also some neck pain) without radiation”, his overall opinion appears to me to be referrable to the contribution of the work duties over 24 years as an appliance technician, rather than extracting only any contribution of the work duties from October 1999 to November 2001.23
42 Mr Michael Dooley recently examined the plaintiff on behalf of the defendant.24 On examination he found flattening of the normal lumbar lordosis, significantly restricted flexion and rotation of the low back to left and
Plaintiff’s Court Book p122(e) – p5 of report under heading “Comment”.
Exhibit M.
right, unrestricted straight leg raising but some alteration in sensation involving the left thigh and left leg. He found mild tenderness along the dorsum of the cervical spine and restricted flexion and extension but not rotation in the neck. There was a full range of movement of both shoulders and arms.
43 Mr Dooley’s opinion was that Mr Mehler suffers from naturally occurring degenerative disc disease of the lumbar spine affecting mainly the L2-3 and L5-S1 levels (he appears to have seen only the 1987, 1990 and 2001 radiology and not the December 2007 CT scan). He notes that Mr Mehler at a relatively young age was symptomatic with his lumbar spine condition. He accepted that on the history given to him it was probable that during this period (presumably October 1999 to November 2001) Mr Mehler aggravated his underlying degenerative disc disease of the lumbar spine leading to him noting an increase in the lumbar spine pain and some stiffness of the lumbar spine. As the aggravation occurred nine years ago, he was of the view that while work at that time contributed to the underlying condition having a heightened effect, in his view it had not caused the degeneration or accelerated it and what Mr Mehler now notes in pain relates to the natural evolution of the underlying degenerative disc disease. He does say it is possible that the aggravations in 2001 were associated with some permanent increase in pain but overall did not believe they accounted for the majority of his current condition. In relation to his cervical spine condition, he suffers from naturally occurring degenerative disc disease affecting mainly the C6-7 level which his work possibly aggravated during mid 2001 but in the main his current neck symptoms relate to the natural evolution of the underlying degenerative condition and not to any aggravation sustained at that time. He considered Mr Mehler would now have difficulty carrying out heavy physical work or work that involved a lot of bending or lifting or regular work at and above shoulder level. Noting his age, he considered that from the orthopaedic point of view he would be capable of carrying out some light physical work and clerical duties.
44 The defendant obtained a report from Dr Malcolm Brown, occupational physician, dated 6 July 2010.25 On examination he found little restriction of back movement or straight leg raising but did find reduced left knee reflex. He found an unrestricted range of shoulder movement, no significant tenderness in the cervical spine and unrestricted range of movement in all directions with the neck. He concluded that Mr Mehler has mild degenerative changes in the cervical and lumbar spines, causing some headaches and mild low back pain. He concluded that the condition caused mild incapacity for employment such that he should avoid tasks involving constant bending, heavy lifting or standing still in the one position, concluding that he has a partial incapacity for employment likely to persist for the foreseeable future, but does have capacity for suitable employment such as the factory work he was undertaking regularly in 2007.
45 Dr Brown’s view of causation or contribution of his work to his condition was that employment may have made some minor contribution to what is otherwise a degenerative condition in his cervical and lumbar spines, and considered that his current partial incapacity for employment would have occurred in any case, regardless of occupational factors, due to the underlying constitutional condition with what he called a gradual deterioration seen radiologically.
46 The defendant also obtained a report26 from Dr R.C. Wilkie, consultant radiologist. He had been asked to provide answers to specific questions but without physical examination of the plaintiff. Unfortunately for a report of this nature, it does not make clear whether the prior radiology which he was asked to examine consisted of the original films or whether in relation to some it was
Exhibit 1.
Exhibit 2.
only the radiographer’s report on the films. Dr Templer noted that unless the radiographer (in particular in 2001) was specifically asked to compare a film with a previous one, the comments were likely to be general and not necessarily helpful in showing any progression or change. That omission limits the usefulness of Dr Wilkie’s opinion. Its usefulness is also limited in that it can at best only comment on the condition as reflected in the radiological studies, and not on the symptoms or their consequences to the plaintiff at any point in time. However, I do take it into account in the context of all of the other medical opinions and the plaintiff’s own evidence of the history of his symptoms.
47 Dr Wilkie concluded that the changes in the lumbosacral spine shown in the February 1990 CT scan had almost certainly been present for many years, and specifically that the L5-S1 most likely pre-dated 1980. He considered there was a lack of change from the 1987 to 1990 situation indicative that the changes that were shown had almost certainly been present for many years. In relation to the July 2001 x-ray of the lumbar spine, he notes that advanced changes of disc degeneration are reported at L2-3 and L5-S1 with disc height, loss and marginal lipping, however no change was seen at other levels and he considered that the changes accorded with the plain film study of 10 June 1987 and found the lack of progression of disc degeneration was established in 1987 to 2001 was significant. As to the CT scan of December 2007 he noted that at L4-5 there were disc degenerative changes, however a left extra- foraminal 9mm disc herniation was indicated. He noted that change was not reported on the previous CT scan, and was likely to be relatively recent and most likely the reason for performing the CT scan. He felt it probable that the patient had left leg pain at the time of the scan and that the abnormality had developed many years after November 2001 and probably in the previous three months but no more than a period of months prior to the CT scan.
48 Dr Wilkie did not feel that the period of employment (which I shall assume was October 1999 to November 2001, although it is not specified) had played any significant role in altering the character or rate of disc degeneration progression that was initially demonstrated in 1987. He said the changes in 2007 had progressed somewhat from 1987, however this level of progression is what he would have expected over this period of time and that the multilevel disc degeneration demonstrated in 1987 and 1990 would have progressed to produce the level of disc degeneration demonstrated in 2007.
Whether aggravation caused by subject work duties occurred and constitutes a “serous injury”
49 I am satisfied on the balance of probabilities, based on the opinions of Mr Brownbill, Mr Khan, Mr Simm and Dr Thomas, that the plaintiff’s employment duties with the defendant and its predecessor over 24 to 25 years caused aggravation to the plaintiff’s underlying constitutional spinal condition such that overall they materially contributed to his present spinal condition and symptoms. The difficulty in this case is whether the very much more limited period – from October 1999 to July, or at latest November, 2001- caused aggravation which continues to materially contribute to his present level of symptoms from his spinal condition.
50 The only medical opinions to specifically comment on the causative effect of the subject period of employment are those of Mr Dooley and Dr Thomas. Neither gives clear support to the plaintiff’s case on this issue, but each offers a very limited degree of support. Mr Dooley says that although an aggravation from that period probably occurred, its effects were probably temporary, and have been overtaken by the natural progression of the underlying condition. Alternatively he considered that any permanent exacerbation, which he regarded as only a possibility, was minor. Dr Thomas considered that the long-term employment duties had contributed, but that any apportionment to the period October 1999 to November 2001 would be small. I am not satisfied that Drs Simm, Brownbill or Khan differentiated the period of October 1999 to November 2001 from the long period of prior employment. Dr Wilkie’s perspective did not support the plaintiff’s case, but as it does not relate to subjective symptoms I do not give it much weight on this issue. Dr Brown’s opinion is against there being any ongoing contribution from the subject period of employment.
51 The plaintiff’s counsel argue that I should be satisfied from the evidence that a significant change occurred in about July 2001, in the symptoms and need for ongoing treatment of them. Specifically, there was the addition of neck symptoms of pain, stiffness and headaches, and the low back pain did not fully resolve as previous episodes had. Further, from that time onwards the plaintiff showed recurring need for medication and physiotherapy, even if not very frequently, and he also realised that his ability to keep working at the quite heavy duties of his long time job was becoming doubtful.
52 I accept that there was an incremental worsening in his condition that sent him to the doctor in mid 2001. I find that his work duties over the preceding 20 months were more likely than not to have materially contributed to that worsening. I accept that there were some ongoing consequences of that worsening, by way of more frequent episodes of low back pain, sciatica, and the addition of headaches and neck pain and stiffness. There was also some interference with his sleep through discomfort.
53 However I am not satisfied that any of those symptoms were constant, or serious enough to interfere with his usual activities other than occasionally. He nowhere has said that prior to late 2007 he experienced any difficulty in pursuing his recreational activities of golf, fishing or gardening. Although there is description in some medical reports of his having a wife and three adult children, there is nothing to indicate any effect on his family life or activities from any stage of his back condition. I accept that he intermittently required medication and physiotherapy to maintain himself as able to engage in his recreational activities, and that there were flare-ups of symptoms at times. I accept that this condition was one of the reasons why he accepted the redundancy package and when he obtained other work he chose only jobs that did not put much strain on his back. However, I am not satisfied that the consequences to him over those 5 ½ years approached the level of being fairly described as “more than significant” or “very considerable”, as there was so little interference with his daily activities, or overall ability to work.
54 There is little doubt that that the plaintiff’s spinal condition deteriorated further in about December 2007, and although it improved in the following months (as reported to Mr Simm) and with the functional restoration course at the Victorian Rehabilitation Centre in February and March 2009, he remains significantly more affected by back pain than he did in the preceding years. Except for Dr Brown, all medical evidence supports that conclusion, and in my view it is supported also by an objective view of the changes in Mr Mehler’s daily activities.
55 The defendant’s submission is that even now he does not satisfy the descriptive test for a ”serious injury” of suffering consequences that are “more than significant or marked” and “at least very considerable”. So far as pain and suffering is concerned, I am satisfied that the consequences of his spinal condition probably now do support that description – in that his favourite pastimes are severely curtailed – being able on good days to walk a golf course with friends but not participate other than occasionally swing a club gently, having had to cease fishing, and being very limited in the gardening he can do. As well he suffers back pain, occasional neck pain or stiffness or headaches, some discomfort in sleep, and is unable to take casual jobs which I accept he was likely to have done after reaching the age of 65 had his back not reached the stage which has.
56 The critical issue however is whether his current condition continues to result from or be materially contributed to by the compensable injury, being the aggravation caused by his work duties between October 1999 and July (or even November) 2001. It was submitted on his behalf that that it does, either because the December exacerbation was a natural progression of the condition caused by the July 2001 aggravation, or because if caused by physiotherapy treatment as suggested in Dr Templer’s clinical notes and questionnaire, then that was treatment for the compensable injury and is relevantly causally linked to it.
57 I am not satisfied on the balance of probabilities that the December 2007 exacerbation continues to materially contribute to the plaintiff’s current level of symptoms from his degenerative spinal condition. Accepting that consequences of an injury may be delayed, I am not satisfied that the evidence establishes that that is what has occurred on the balance of probabilities in this case. On the contrary, the weight of the medical evidence is that the plaintiff had a pre-existing degenerative condition in his spine, which was previously symptomatic and likely to be recurringly so. At best Dr Thomas and Mr Dooley accept that there may have been some permanent effect from any aggravation from his work duties in the subject period, but of very little contribution to the overall long-term condition. Mr Dooley’s principal view however is that the natural progression of the underlying condition was likely to have brought him to his current condition. The opinions of Dr Wilkie and Dr Brown – despite the limitations I note on each of their opinions, support the view that the plaintiff would have reached his present level of degenerative spine (radiologically) and of incapacity from it, through the natural progression of the condition without any aggravation from work duties in the 2001 period. The plaintiff bears the onus of proving his case on this issue and in my view has not done so.
58 Finally, there is the argument that the July 2001 aggravation was relevantly causally related to the deterioration or exacerbation in December 2007 if the latter was brought on by physiotherapy that was treatment for the “2001” compensable injury. I accept that the law supports that proposition. However I am not satisfied on the evidence that that is what is likely to have occurred. The plaintiff himself never offered that version of the exacerbation in his affidavits, and only indirectly and partially adopted it when being cross- examined about what he told Dr Templer on 23 December 2007. His description was of worsening leg pain and not of back pain, and further the greater problem has been back pain since the improvement of leg symptoms from the rehabilitation program in 2009. I am not satisfied that a significant change was brought about by physiotherapy treatment in December 2007, so in my view it does not justify a finding that the aggravation in 2001 remains a material contributing factor to the current level of symptoms or impairment suffered by the plaintiff from his degenerative spinal condition.
Conclusion
59
60 I am satisfied that the plaintiff’s employment duties with the defendant from October 1999 to July (or even November) 2001 caused an aggravation of his pre-existing degenerative spinal condition, but not that that injury continues to be a material contribution to his current level of symptoms and impairment from that condition. Accordingly I am not satisfied that he has suffered a serious injury within the constraints of s 134AB Accident compensation Act 1985, so his application must be dismissed.
SCHEDULE OF EXHIBITS
MEHLER –v- ELECTROLUX (CI-09-06031)
| Number and | Short Description of Exhibit |
Identifying Mark
on Exhibit
A Affidavits of the plaintiff B Radiological reports dated 10 May 87, 1 Feb 90, 24 July 01, 24 December
07C Reports of Dr Osman (4) D Reports of Dr Templer dated 12 June 09 enclosing progress notes & 21
May 09, 26 Feb 2010 and Medical questionnaire 18 Feb 08E Questionnaire by Dr Gambhir 12 May 08 F Reports of Dr Thomas 7 Aug 08, 1 May 09, 11 June 09 and 30 July 10 G Reports of Victorian Rehabilitation Centre 24 Nov 08 and 19 March 09 H Reports of Mr Gavin Davis 5 June 08 and 17 May 2010 J Report of Mr Kahn 28 May 2010 K Report of Mr Simm 9 July 08 L Reports of Mr Brownbill dated 26 Aug 2010 and 16 September 2010 M Report of Mr Michael Dooley 13 Aug 2010 N Summary of income from tax returns O Workers compensation claim form and employer report (126-129) dated 19
July 01P Court book index of the Defendant (referring to surveillance video)
| Number and | Short Description of Exhibit |
Identifying Mark
on Exhibit
1 Report of Dr M Brown dated 6 July 2010
2 Report of Dr R Wilkie dated 17 Aug 2010
0
0
0