Murgovski, Peco v Baiada Farms Pty Ltd and VWA
[2009] VCC 1203
•5 October 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES & COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-00110
| PECO MURGOVSKI | Plaintiff |
| v | |
| BAIADA FARMS PTY LTD | First-named Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second-named Defendant |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 11, 14 and 15 September 2009 |
| DATE OF JUDGMENT: | 5 October 2009 |
| CASE MAY BE CITED AS: | Murgovski, Peco v Baiada Farms Pty Ltd & VWA |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1203 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – whether plaintiff suffered injury to his lower back as claimed – causation – whether injury to the lower back occurred in different circumstances to that claimed: section 134AB(38)(c).
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Lewis SC with | John Dellios & Associates Pty |
| Mr R Forsyth | ||
| For the Defendants | Mr J Ruskin QC with | Minter Ellison |
| Ms F Ellis | ||
| HIS HONOUR: |
1 Before the Court is an application brought by Originating Motion filed on 14 January 2009 by which the plaintiff applies for leave, pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of the course of his employment with the defendant.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering and loss of earning capacity.
3 Mr G Lewis SC appeared with Mr R Forsyth of Counsel for the plaintiff and Mr J Ruskin QC appeared with Ms F Ellis of Counsel for the defendants.
4 The body function which the plaintiff says has been lost or impaired is the lower back.
5 The following evidence was adduced during the hearing:
• The plaintiff gave evidence and was cross-examined; • Dr Tadros, general practitioner, gave evidence and was cross-examined; • The plaintiff tendered the Plaintiff’s Court Book (“PCB”), pages 26-32 and 103-196: Exhibit A; 6 The defendant tendered the Defendant’s Court Book (“DCB”), pages 3-14; 24-147; 170-198: Exhibit 1.
The Statutory Scheme
7 The application is brought under the definition of “serious injury” contained in subsection (37)(a) of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
8 The relevant considerations which apply to such an application are as follows:
(a)
The plaintiff must prove that he has suffered a compensable injury; that is, an injury which he suffered arising out of the course of his of employment on or after 20 October 1999.[1]
(b)
The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
(c)
The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by subsection (19)(a), subsection (19)(b) and subsection (38)(e) impose a specific burden on the plaintiff in relation to a claim for loss of earning capacity.
(d)
Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e)
Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(f)
Subsection (38)(e) provides that in a claim for loss of earning capacity such loss must be to the extent of 40 per cent or more, both at the date of hearing and permanently.
(g)
Subsection (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined.
(h)
Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application.
(i)
Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event;[3] an approach which I intend to follow in the appropriate case.
(j)
In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in subsection (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
(k)
In an application where it is alleged that the plaintiff had a pre-existing condition which arose prior to 20 October 1999, I must, in conformity with Barwon Spinners, identify the injury and impairment arising after 20 October 1999, and I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after that injury: see Petkovski v Galletti.[4]
[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[2] Barwon Spinners, at paragraph 33
[3] Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
[4] [1994] 1 VR 436
9 I am required by section 134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s Background and the Incident
10 The plaintiff was born on 5 May 1950. He is now fifty-nine years of age. He is a married man. He was born in Macedonia. He migrated to Australia in 1969.
11 The plaintiff worked for the defendant for about thirteen and a half years before suffering injury in September 2002. He worked as a process worker/labourer for the first defendant.
12 The plaintiff alleges that on 24 September 2009 he suffered injury to his right shoulder, neck and lower back. In his first affidavit sworn 28 August 2008, he described pulling a pallet jack when a piece of wood became wedged against one of its wheels. As a result, he slipped and fell backwards, landing on his backside. He said he grabbed at a post which resulted in injury to his right shoulder.[5]
[5] PCB 2
13 In the plaintiff’s second affidavit sworn 11 September 2009, he said that he fell on his backside first, and as he got off the ground he injured his right shoulder while trying to pull the jammed pallet jack up an incline.[6]
[6] PCB 32D-32E
14 In his oral evidence he said that he entered the chillers, pulling the pallet jack. There was ice on the floor. He said his foot slipped and he fell onto his backside and also onto his back. He said he got up. He then grabbed a post of some shelving with his left hand, and by using his right hand he pulled at the pallet jack, and in the course of doing this he suffered injury to his right shoulder.[7]
[7] Transcript 27
The Issues
15 Mr Lewis submitted that the plaintiff suffered injury to his lower back in the circumstances as described by the plaintiff in his oral evidence; that is, he fell onto his backside and then onto his lower back. He submitted that the plaintiff suffered consequences both in terms of pain and suffering and loss of earning capacity which met the statutory tests.
16 Mr Ruskin submitted that the plaintiff did not suffer an injury to his lower back in the claimed incident and that the evidence established that the problem with his lower back occurred much later. This was the issue on which Mr Ruskin concentrated almost all of his efforts.
The Occurrence of the Lower Back Injury
17 It is clear from the plaintiff’s affidavits and from his oral evidence that it was his case that the injury to his lower back occurred at the time of the fall on 24 September 2002.
18 Furthermore, in the proposed Statement of Claim, the plaintiff pleaded the occurrence of the incident as occurring in September 2002 which resulted in him suffering a number of injuries.[8]
[8] PCB 43-47, particularly, paragraphs 4 and 7
19 The plaintiff first saw Dr Tadros on 14 October 2002. In his report dated 12 April 2005, Dr Tadros said he was given the following history of the incident by the plaintiff:
“On the 14 October 2002, Mr Murgovski presented complaining of right shoulder and arm pain which happens (sic) following an incident at work on the 24 September 2002.
Mr Murgovski stated that while he was pulling a heavy pallet, he had a fall on the 24 September 2002 in which he hurt his right shoulder and arm. He stated that he took the 25 September 2002, then returned back to work on the 26th September and was doing light duties.”
20 Dr Tadros’s clinical notes dated 14 October 2002 referred to the plaintiff pulling a heavy pallet, but did not record a fall. Otherwise the clinical notes match up with the history described by Dr Tadros in the narrative set out in his report.
21 Mr Lewis submitted that the reference to the fall in Dr Tadros’s report is of significance because it lends significant weight to the plaintiff’s case that Dr Tadros knew that the plaintiff had suffered a fall right from the outset.
22 Mr Lewis also submitted that the plaintiff’s supervisor, Mustafa Balihodzic, made a statement on 25 November 2008 in which he recounted a conversation with the plaintiff during which the plaintiff told him that when he was pulling the pallet jack he hurt his back. He submitted that it also added significant weight to the plaintiff’s case because it must have been a statement made by the plaintiff contemporaneously with the occurrence of the incident.
23 However, Mr Ruskin submitted that no doubt Dr Tadros was told of the fall at some stage along the way, and that his reference to it in the report without an explanation as to when he was informed that the plaintiff had suffered a fall was of no assistance to the plaintiff.
24 Mr Ruskin submitted that the statement made by the supervisor was made on 25 November 2008 and was unreliable. He submitted that the supervisor may well have acquired knowledge that the plaintiff later said that he hurt his back pulling the pallet jack, but a statement made some six years after the incident was unreliable, particularly in the face of the contemporaneous medical evidence.
25 I prefer the submission made by Mr Ruskin for reasons which will become very evident below.
26 Dr Tadros’s report refers to the plaintiff seeing him in 2002 on 25 October, 15 November and 13 December 2002, and seeing him in 2003 on 14 April, 24 July and 3 October 2003 without any reference to the plaintiff complaining of suffering injury to his lower back in a fall.
27 On each of the foregoing occasions that the plaintiff saw Dr Tadros it would appear that the plaintiff drew Dr Tadros’s attention to injuries to his right shoulder and arm and neck.[9] The foregoing is confirmed by Dr Tadros’s clinical notes.[10]
[9] PCB 107-108
[10] DCB 170-172
28 On 3 October 2003, the plaintiff saw Dr Tadros, complaining of upper dorsal spine pain. Dr Tadros referred the plaintiff for a lumbosacral x-ray which was taken on 4 October 2003. It was subsequent to 3 October 2003 that there was an emerging problem for the plaintiff with his lower back.
29 The plaintiff was referred to have a CT scan on 13 October 2003 on his lumbosacral spine. He saw Dr Tadros over the balance of 2003 on 31 October and 6 December, and was ultimately referred to Mr O’Brien, neurosurgeon, for an opinion regarding his lower back.
30 Mr Ruskin submitted that it was more likely than not that the plaintiff’s lower back injury emerged some time around mid to late 2003.
31 Mr Ruskin submitted that on 24 July 2003, Dr Tadros recorded in his report that the plaintiff was asked to lift more than 5 kilograms by his supervisor. The plaintiff refused and was told by his supervisor that if he could not lift more than 5 kilograms he should go home. The plaintiff went home. He saw Dr Tadros in an upset state. He then returned to Dr Tadros on 3 October 2003 complaining of dorsal spine pain.
32 Mr Ruskin referred me to the clinical notes of Dr Tadros of 3 October 2003, in which he recorded the plaintiff suffering upper lumbar spinal pain which the plaintiff reported to him had resulted from being pushed at work.[11] Mr Ruskin submitted that the entry in the clinical notes tied in precisely with the plaintiff being required to lift more than the weight restriction imposed on him which may then have led to the onset of his lower back pain.
[11] DCB 170
33 Dr Tadros said that the first occasion that the plaintiff complained of back pain was on 3 October 2003.[12] He said that his notes indicated to him that the plaintiff was attributing the onset of the back pain to being pushed at work, and that he was perhaps being made to work too fast or to perform work which was too heavy for him.[13]
[12] Transcript 54
[13] Transcript 55
34 Dr Tadros admitted, after Mr Ruskin had taken him through his report and his clinical notes, that there was no reference to a fall in his clinical notes.[14]
[14] Transcript 57
35 Mr Ruskin also referred to other documents which he submitted pointed to the unlikelihood of the plaintiff having suffered pain to his lower back as claimed:
•
The plaintiff completed a claim form on 14 October 2002 in which he referred to suffering injury to his right shoulder and neck. He made no reference to a fall.[15]
•
The plaintiff completed a second claim form on 20 October 2003 in which he referred to suffering injury to his lower back while pulling a pallet. He referred to a splinter of wood becoming caught under the wheel of the pallet jack; however, he did not refer to suffering a fall.[16]
•
The plaintiff completed an incident report on 11 October 2002 in which he referred to injury to his right shoulder and arm using a pallet jack, and that it was strain and exertion which resulted in him suffering injury. He did not refer to suffering an injury to his lower back or suffering a fall.
[15] DCB 3-5
[16] DCB 6-8
36 Mr Ruskin submitted that the foregoing must raise doubt about the truthfulness of the plaintiff’s evidence that he suffered a fall and that he suffered an injury to his lower back.
37 Mr Ruskin submitted that the varying accounts of the incident in the plaintiff’s affidavits, when compared with his oral evidence, might not ordinarily be of any particular significance in a serious injury application; however, in the context of all of the other evidence pointing to the unlikelihood of the plaintiff having suffered a fall and an injury to his lower back, they become matters of greater significance.
38 If the plaintiff did suffer a fall, as he described in his oral evidence, then it is surprising that he was not able to describe the incident in that way in his affidavits. The description given by him in his first affidavit certainly refers to a fall with the plaintiff landing on his backside, but the impression created is that he then grabbed at a post which resulted in an injury to his right shoulder, back and neck.
39 In his second affidavit, the plaintiff took particular issue with a history taken by Dr Brown, physician.[17] He then described the incident as, firstly, a fall onto his backside, and then suffering an injury to his right shoulder while trying to pull the jammed pallet jack up an incline.
[17] DCB 89
40 Mr Lewis placed great emphasis and importance upon the reference by Dr Tadros to a fall in his report. He submitted that it was clear evidence that Dr Tadros knew of a fall from the outset, and that if I accepted that as a fact then a fall of the kind suffered by the plaintiff would be likely to cause an injury to the plaintiff’s lower back.
41 Mr Lewis put that very proposition to Dr Tadros, who agreed that a fall of that magnitude would result in an aggravation of pre-existing degenerative changes in the plaintiff’s lower back.[18]
[18] Transcript 60-61
42 Mr Lewis also placed great emphasis and importance upon the histories given to the medical practitioners who subsequently examined the plaintiff. He submitted that they were given histories consistent with the plaintiff suffering a fall at the time of the occurrence of the incident with a contemporaneous onset of lower back pain. Each were prepared to accept that it was the fall which caused the plaintiff’s lower back pain.
43 In particular, Mr Lewis referred to the opinions of Mr Wilde, orthopaedic surgeon,[19] and Mr King, orthopaedic surgeon,[20] both of whom were provided with a copy of the report of Dr Tadros. Mr Lewis submitted that, therefore, they must have been aware that there was no report of lower back pain until early October 2003, yet they were not swayed by the absence of a contemporaneous report of a complaint of lower back pain.
[19] PCB 141-146
[20] PCB 125-140
The Question of Causation
44 The question of causation can only be determined upon an analysis of the evidence of the plaintiff, the documentary evidence which was created contemporaneously with the occurrence of the incident, and the report, clinical notes and evidence of Dr Tadros.
45 Either that evidence supports a conclusion that the plaintiff did suffer a fall on his backside and then onto his back which resulted in an injury to his lower back, or it does not.
46 The evidence of the medical practitioners who subsequently examined the plaintiff is of little value because those medical practitioners were armed with a history that the plaintiff did fall onto his backside and his lower back, which they no doubt considered to be a mechanism likely to result in an injury to the lower back. They were not given the material on which Mr Ruskin based his submissions. If they had been, then their opinions might have been very different.
47 The real question of causation raised by this application was implicit in the cross-examination conducted by Mr Ruskin of Dr Tadros. It may be that the plaintiff’s pre-existing degenerative changes became symptomatic in October 2003 due to some influence by his work, or simply by reason of those degenerative changes coincidentally becoming symptomatic.
48 Dr Tadros was uncomfortable in expressing an opinion on that issue, saying that is why he sent the plaintiff to Mr O’Brien for an opinion. He felt that he might have been overstepping his limits in expressing an opinion on that issue, and by that I assume he meant his medical knowledge and expertise in diagnosing the source of the plaintiff’s complaints of pain in his lower back.[21]
[21] Transcript 59
49 Mr O’Brien does not advance the plaintiff’s case at all. Mr O’Brien obtained a history from the plaintiff that it was while he was moving a pallet jack with his right arm that he developed pain in the right side of his neck and right shoulder. He also told Mr O’Brien that he felt that he injured his lower back at the same time, but that it was not problematic initially. He also told Mr O’Brien that it was over the last few months before he saw Mr O’Brien that his lower back had become increasingly painful.
50 Mr O’Brien saw the plaintiff in about November 2003. His reference to the last few months must, therefore, mean some time before November 2003. It is likely that what the plaintiff meant was the onset of lower back pain consistent with the occasion he saw Dr Tadros on 3 October 2003 when he complained of pain in his upper lumbar spine as a result of being pushed at work.
51 Mr O’Brien did not express an opinion whether the plaintiff’s lower back pain was work-related. He was of the opinion that the plaintiff’s pain in his lower back was most likely related to underlying spondylosis.[22]
[22] PCB 124
Findings
52 I do not accept that the plaintiff suffered a fall on 24 September 2002. The description given by the plaintiff, in his oral evidence, of the fall, was intended to convey a dramatic and traumatic fall. He emphasised not only falling onto his backside but then falling onto his lower back.
53 It is surprising that he did not give that description to Dr Tadros when he first saw him on 14 October 2002 or in the first claim form and the incident report. It is not an incident which was complicated or had any attendant difficulty in him being able to give Dr Tadros a description in those terms. There really is no plausible explanation why the plaintiff did not give a description of that kind to Dr Tadros.
54 I am fortified in reaching that conclusion by the fact that the plaintiff swore two affidavits in which the description of the incident is at significant variance when a comparison is made between the descriptions given in the two affidavits, and then at significant variance when compared with his oral evidence. It occurs to me that the reason why there is such significant variance is because the plaintiff was not telling the truth when he swore his affidavits, nor when he gave his oral evidence.
55 I am further fortified in reaching the foregoing conclusions because when the plaintiff was examined by a host of medical practitioners on a medico/legal basis he was able to describe the fall and that it resulted in pain in his lower back which has persisted. It is surprising that he was so adamant when giving histories to those medical practitioners as to the cause of his lower back pain, but could not do that to any extent at all when examined by Dr Tadros, nor when he completed the first claim form and the incident report.[23]
[23] Mr Wilde, at PCB 142; Mr King, at PCB 126; Mr Brearley, orthopaedic surgeon, at PCB 147; Dr Horsley, occupational physician, at PCB 156; Dr Brown, at DCB 89; Mr Troy, surgeon, at DCB 95; Mr Marshall, surgeon, at DCB 114; Mr Davie, orthopaedic surgeon, at DCB 122; Mr Russell, vascular surgeon, at DCB 125; and Mr Knight, neurosurgeon, at DCB 130
56 Therefore, I find that the plaintiff did not suffer a fall as he alleges on 24 September 2002. I find that the plaintiff was pulling a pallet jack which was loaded with boxes, and as a consequence of it becoming jammed on a piece of wood, he suffered injury to his right shoulder and arm and neck while pulling the pallet jack against resistance.
57 I find that the plaintiff suffered the onset of pain in his lower back in early October 2003, which most likely occurred as a result of either being required to exceed his lifting limits of 5 kilograms and being pushed at work, or alternatively, as a result of the onset of pain due to the nature and extent of the degenerative changes in his lower back.
Conclusion
58 On the basis of the foregoing, I order that the plaintiff’s Originating Motion be dismissed.
59 Costs.
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