Murphy v Victorian WorkCover Authority
[2025] VCC 25
•6 February 2025
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-24-00062
| SHAUN LEE MURPHY | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 13 and 14 November 2024 | |
DATE OF JUDGMENT: | 6 February 2025 | |
CASE MAY BE CITED AS: | Murphy v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 25 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – impairment to the lumbar spine – significant contributing factor – pain and suffering only
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s335(2)(d)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Popovski v Ericsson Australia Pty Ltd [1998] VSC 61; Zlateska v Consolidated Cleaning ServicesPty Ltd & Anor [2006] VSCA 141; St Mary’s School v Askwith [2011] VSCA 90; Petkovski v Galletti [1994] 1 VR 436; Peak Engineering Pty Ltd v McKenzie [2014] VSCA 67; Dordev v Cowan & Ors [2006] VSCA 254
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J P Brett KC with Mr G Pierorazio | Ryan Carlisle Thomas |
| For the Defendant | Mr R H Stanley SC with Ms M Cameron | TG Legal + Technology |
HER HONOUR:
1This is an application for leave to bring proceedings for damages pursuant to s 335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the Act”) for injury suffered by the plaintiff in the course of his employment with Ararat Abattoirs Pty Ltd (“the employer”) from April 2016 to September 2020 (“the period of employment”) and, in particular, on or around 29 May 2018 (“the said date”).
2The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s325(1) of the Act. There, “serious injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4The body function relied upon in this case is the lumbar spine.
5Apart from being a “serious injury”, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
6The impairment of the body function must be permanent.
7The plaintiff bears an overall burden of proof upon the balance of probabilities.
8By s 325(1)(c) of the Act, the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant or marked”.
9Section 325(2)(h) of the Act requires all psychological consequences to be ignored in determining the plaintiff’s application in relation to the physical impairment.
10I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
11I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak,[1] Haden Engineering Pty Ltd v McKinnon[2] and Popovski v Ericsson Australia Pty Ltd[3] in reaching my conclusions.
[1] (2005) 14 VR 622.
[2] (2010) 31 VR 1.
[3] [1998] VSC 61 (“Popovski”).
12The plaintiff relied upon two affidavits, sworn 3 November 2023 and 15 October 2024, and he was cross-examined. He also relied on an affidavit sworn by his wife, Cheri, on 17 October 2024. She was cross examined. The defendant relied on an affidavit sworn by the employer’s HR & Return to Work Coordinator, Elisha Reid, on 22 July 2024. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
13The hearing was transcribed, save for one hour before lunch on the first day when there were technical difficulties with recording.
14The main issues in dispute were credit and causation.[4] While it was a course of employment claim, there was a reliance on a specific incident “as a substantial trigger” for the plaintiff’s May 2018 injury.[5]
[4]Transcript (“T”) 4.
[5]T2.
15This application and the medical evidence in relation thereto focussed mainly on the plaintiff’s work duties in the hook room which ceased in 2018.
Plaintiff’s evidence
16The plaintiff was born in January 1978 and is currently aged 47. He lives with his wife and four of his five children, ranging in age from six to 16.
17The plaintiff only managed to complete half of Year 9 at Ararat High School. His work history thereafter has always been hands-on and includes working at an abattoir, a sausage factory, as a forklift driver, and at a factory polishing stainless steel.[6]
[6] First affidavit sworn 3 November 2023 (“first affidavit”).
18He first worked with the employer when he was 15. He worked “on and off”.[7]
[7]T8.
19He underwent a laminectomy in March 1999 in order to remove a lump growing on his L5 disc (“the lumbar surgery”).
20He confirmed that he was in full-time employment between the surgery and 2016, with no extensive period off work, “from what he could remember”. In fact, that was not entirely correct. He had been unemployed for three-and-a-half years, “quite some time,” before working with the employer again in 2016.[8] He was unemployed for that period because he did not want to have to work in the abattoirs, and there was not much work in Ararat he would be suited for.[9]
[8]T9.
[9]T10.
21He denied he was off work for that period, before starting at the abattoir, because of his back pain.[10]
[10]T51.
22He was off work between 2012 and 2016. He moved back to Ararat and was smoking marijuana.[11]
[11]T62.
23He was not a hundred per cent sure what his last job was before working with the employer in 2016. It could have been at Tyrecycle in Melbourne or working in a warehouse, “like, with calendars”.[12] His back was not preventing him from working in those three years “at all”.[13] He agreed that there were jobs he could have done at that time, but he chose not to.[14]
[12]T10.
[13]T10-11.
[14]T11.
24In re-examination, he confirmed he did not have any limitations in the work he did prior to 2016 because of back issues. He had no difficulty performing any of the jobs set out in his undated résumé because of his back.[15]
[15] T57.
25He was confident in his ability to undertake the pre-employment medical examination with the employer in 2016.[16]
[16] T63.
26He could not recall completing a job application form with the employer in 2016, but believed he would have.[17] He agreed he answered ‘No’ to the question on the form which essentially asked ‘have you ever been affected by a back condition or injury?’.[18] It was also factually incorrect that he answered ‘No’ to the questions about whether he had ever been affected by a major operation, or had criminal convictions in the past ten years. He accepted that he was lying to his potential employer.[19]
[17]T16.
[18]T17-18.
[19]T18.
Work with the employer
27When he commenced work with the employer in 2016, he was relatively fit and well. For the first six weeks or so in that job, he worked as a labourer, which was physically demanding work. He had to push sheep carcasses, which were hooked onto an overhead rail, into the chiller.[20]
[20] First affidavit.
28Not long after he commenced this role, he became a forklift driver and was required to work in the hook room. In short, this work involved manual handling of hooks – sorting and cleaning them – including bending into a large tub to pick up the hooks to place them into smaller crates. It was an extremely repetitive and awkward task. This was the only job he performed over a period of about twelve months or so for the employer, often working twelve hours a day, five days a week and in addition, often working six to seven hours on a Saturday, always performing the same task (“the duties”).
The injury
29As a result of his duties, he suffered pain in his back. He completed an Incident Report on the said date.[21]
[21] First affidavit.
30He could not recall suffering lower back pain within several months of starting work in April 2016, but Mr Drnda’s history of an onset of back pain in 2016 and the employer telling him not to claim WorkCover at that time “rang a bell.”[22]
[22]T34-35.
31He agreed his job with the employer was the first strenuous work he had done for three-and-a-half years. The onset of back pain would have been within the first year, not within three months.[23] He denied that his back pain then improved, but agreed he was able to work full time into 2017. He “had to go back to work” and was successful working during that time.[24]
[23]T35, T71.
[24]T36.
32He “just worked through from 2016” and his back “just got worse”. In 2018, “they” made him fill out an incident report involving the work of having to pick up the hooks. He disagreed that, at the time he put in the incident form, his leg pain was more right sided.[25]
[25]T37.
33His sciatica before the injury at work was on the right and is now on the left.[26] The first time he had pain in his left leg was doing the hooks.[27]
[26]T57.
[27]T72.
34He confirmed flare-ups could occur with very small provocation, an example of which would have been the TV incident. It was “within similar type of pain” that he had in May 2018.[28]
[28]T71.
Treatment
35He saw his general practitioner, Dr Ghazal, at the Tristar Medical Clinic, on 25 June 2018, who prescribed Tramadol and provided a medical certificate. A lumbar x-ray was carried out on 2 July and a CT scan on 7 August 2018. He also attended a physiotherapist at East Grampians Health Service on 17 and 24 July and 28 August 2018.
36Because of his back injury, he was provided with lighter duties at work, such as cleaning with a hose.[29]
[29] Ibid.
37After the May 2018 incident, he had some time off work and his duties were modified, and he went back to work on 22 August 2018.[30]
[30]T36.
38He agreed that in October 2018, it was accurate, as his GP, Dr Ghazal, recorded, that he advised of a significant improvement in pain, but was still keen on light duties and increased to 5.5 hours per shift, four days a week, and that he was not then taking medication.[31]
[31] T38.
39On 7 November 2018, Dr Ghazal accurately recorded that the plaintiff’s back was 95 per cent better and he could do full duties. In January 2019, as Dr Ghazal recorded, “back is good, no pain for three to four weeks, happy to go back full time”.[32]
[32] Ibid.
40On 7 January 2019, the plaintiff was given a clearance certificate by Dr Ghazal. He was then given the position of a drover – a job involving herding animals on foot and also using a four-wheel motorcycle.[33]
[33]First affidavit.
41By January 2019, his back was feeling a lot better, but he disagreed there had been a pattern of fluctuating back pain.[34]
[34]T39.
42He had taken the drover’s job because that role was a lot easier on him than going back to work on the hooks or manual handling in the abattoirs, where most of the jobs were pretty demanding.[35] He denied he had to handle sheep in his droving work. The hooks was the heaviest work he did.[36]
[35]T42.
[36]T40.
43He started on light droving duties, and after August he was back to eight hours a day of heavier droving.[37]
[37]T41.
44For the first few months in 2019, his back was manageable, but then his symptoms again flared up and he saw Dr Maleque on 25 June 2019. He was prescribed Panadeine Forte and in the meantime, he saw a physiotherapist at work, through Ararat Physiotherapy and Health Services, from 12 June to 11 September 2019. The physiotherapist arranged a CT scan, which was performed on 2 July 2019.
45On 11 September 2019, Dr Maleque prescribed Panadeine Forte and Voltaren.[38] However, the plaintiff agreed Panadeine Forte was stopped by his doctor in September 2019. He was feeling pretty good. He was “not 100 per cent good”, but he was “feeling pretty good”. He was not fit; he was not 100 per cent able to do things. He was still “getting like little bits of pain”, but nothing like he was. It was manageable.[39]
[38] First affidavit.
[39]T65.
46He worked from September to December 2019 without “major issue”.[40]
[40]T43.
47He signed an employment contract for an ongoing role as a drover on 3 December 2019. He did not have a concern for himself in that role at that time.[41]
[41]T47.
48He agreed, as the transcript of his statutory benefits hearing at the Magistrates’ Court hearing in February 2021 set out, that in late 2019, he was probably motorbike riding, playing pool and fishing, and doing all those activities without any pain or difficulties because of his back.[42]
[42]T46.
The TV incident
49As of Christmas 2019, his back was starting to play up again. He suffered a flare-up of symptoms the day after Boxing Day. He was setting up a TV on a TV cabinet at home, simply attempting to screw on the legs, when he experienced a flare-up of pain.[43]
[43]First affidavit.
Trip to South Australia
50Nevertheless, after a few days, he travelled to Kingston, South Australia, on 31 December 2019, where his friends had a holiday house. The plaintiff and his family stayed in a caravan. They also travelled to Mt Gambier and did some sightseeing, returning home on 13 January 2020.[44]
[44] First affidavit.
51He was camping in a new camper trailer he and his wife had bought. When told his wife had deposed that the South Australian holiday turned out to be an “absolute nightmare,” he agreed that bits and pieces of it were. He was not very comfortable, “that is for sure”. It was fair to say it was miserable, because he had really bad back pain, as well as pain running down his left leg, and he “had to be pretty careful with any movement”.[45]
[45]T20.
52Mr Kossmann was wrong reporting that the plaintiff’s partner had to push him in a wheelchair on the South Australian trip; he thought he used a wheelchair when he went to a doctor’s appointment.[46]
[46]T21.
53A film of approximately 42 seconds’ duration posted by the plaintiff’s wife on Facebook, showed the plaintiff competing in the ‘Occy Toss,’ a squid throwing competition at Kingston.
54The plaintiff was shown holding a squid in his right hand, pointing with his left in the direction he intended to throw it. He took a run-up, then tossed the squid with an over-arm throw. The squid landed some way ahead of him, with the distance measured by an official. The plaintiff then spoke to the official to confirm the landing distance.
55The plaintiff did the “occy tossing” because he was asked to do it; he “was not thinking, just silly, it was just stupid”. It had a major effect, it pretty much ruined the whole holiday, “like [he] just was not coping”.[47]
[47]T64.
56When the plaintiff woke up at home on 14 January 2020, having returned from his holiday the previous day, his back was painful again and he thought to himself, “Here we go again”.[48]
[48] First affidavit.
57He returned to Dr Maleque on 15 January 2020 as he was experiencing not only back pain but pain in his left leg. Again, he was prescribed Panadeine Forte.
58He returned to Ararat Physiotherapy & Health Services for treatment on 16 January 2020 as he was experiencing low back pain, together with pins and needles radiating into his left leg.
59In the meantime, he underwent a further lumbar CT scan on 28 January 2020. He also had a lumbar CT scan and nerve root block on 12 February 2020.
60It was correct, as his GP recorded on 15 January 2020, that the plaintiff reported left leg pain for a few days and it was not going away. The plaintiff did not know the cause of his back and left leg problem. He agreed he was not associating it at all with the work he had been doing the previous year, but denied it was of a far different quality.[49] It was the same type of pain, just a lot worse in the same place.[50]
[49]T48.
[50]T73.
61In the early months of 2020, he was unable to work.
62He ended up lodging a claim for compensation on 30 January 2020.[51]
[51] Claim accepted for the period 29 May 2018 to 26 December 2019.
63All up, he was off work for approximately six months, only managing to return to work on light duties in or about June 2020.
64He continued to perform light duties for the employer until on or about 15 September 2020, when he relocated to his current address in Geelong.[52]
[52] First affidavit.
65He agreed his back got a lot better and by the middle of 2020 he was back to full-time duties droving, which he continued until his resignation in September 2020.[53]
[53]T49.
66As his physiotherapist recorded on 11 August 2020, he had got back to work duties having “nil symptoms”.[54]
[54]T50; discharged from physiotherapy.
Further treatment
67The plaintiff underwent a lumbar MRI scan on 16 February 2022.
68He was referred to a neurosurgeon, Mr Nair, who arranged a CT‑guided left L3 lumbar steroid injection which was performed on 12 August 2022. That injection helped in terms of dealing with his crazy back pain, although he still had ongoing pain and restriction.
69He has been under the care of his current GP, Dr Jothi Gounder, at Waurn Ponds Medical Centre after moving to Geelong in about June 2021.
70He saw a chiropractor, Virginia Croke, for a few months;[55] however, WorkCover refused to pay the full amount for her services and, as it was taking weeks for him to get any refund, he stopped this treatment as he simply could not afford it.
[55]April 2022.
71His entitlement to medical and like expenses was terminated by WorkCover on 22 August 2024. He can only afford to have chiropractic treatment about once a week.
72He was assessed by Pain Matrix at the Pain Management Clinic at Epworth in Geelong in March 2024, which recommended he undergo a pain management program which WorkCover refused to fund. Instead, he was placed on medications in the form of Palexia, 100 milligrams, which he takes twice a day, and Gabapentin, 300 milligrams in the morning and the same at lunchtime, and then 600 milligrams at night. While the medication makes the pain more manageable, he still suffers from many flare-ups of his lower back pain, sometimes activity-related and other times not.[56]
[56]Tapentadol, Gabapentin and Nortriptyline – Dr Khullar’s August 2024 report.
73He had a lumbar spine x-ray on 30 July 2024.
74Recently, he woke in the middle of the night with pain in his neck/shoulder. According to his chiropractor, it was a pinched nerve, and following a neck MRI scan in August 2024, he was advised by the radiologist that his left shoulder symptoms did not appear to be originating within his neck.
75His neck and left shoulder symptoms slowly abated as a result of pool work and hydrotherapy.
76His neck pain and shoulder pain was only very recent and was not long term.[57] He does not have problems with his neck now.[58]
[57]T54.
[58]T75.
Work after leaving the employer
77After moving in September 2020, he managed to find work driving forklifts for five hours a day, five days a week on nightshift. Because of his back pain, he found this difficult, although after a few months, the work ran out and he had to look for alternative work.
78He managed to find work on a construction site as a general cleaner, although effectively he became a COVID marshal, wiping and disinfecting, performing these duties for approximately six months. He was thereafter out of work for an extended period.
79He realised that he needed to retrain into something that would be more manageable for him because of his back pain, so he obtained a Certificate IV in Disability Support.
80After obtaining the Certificate, he managed to find work as a disability support worker on a casual basis in April 2023 with Recruit Connect & Care, generally working 70 hours per fortnight, sometimes more, sometimes less. He was paid $38 per hour. He was able to persist with this job as there was no heavy lifting involved.
81As at November 2023, he had four clients allocated to him, for whom he provided community support access.[59] Generally, that involved taking them out in the community, taking them to lunch or to see a movie, going for a walk or to the shops. He could manage the work as he could sit as needed in order to rest his back, because being on his feet for prolonged periods aggravated his pain.
[59] First affidavit.
82Sometimes he had a sleepover with the clients; however, he had given up sleepovers as he found it was too difficult to sleep on ordinary mattresses. His job was pretty much like being a chauffeur, driving clients to appointments and other activities.
83Since the end of 2023, his wife has also been working in the same field, although part time, to provide more care for the children. She worked two to three times a week, if lucky, around the children’s appointments. He therefore needed to provide financial support for the family.
84He generally worked with clients who were physically independent but not mentally, so there was no significant physical input required. However, if that was not the case, then he and his wife were able to swap jobs.
85By October 2024, although he continued as a disability support worker, he had to reduce his hours from about 40 to 50 plus per week to 20 to 40 hours per week due to pain and restriction. He currently has three clients on the books. While they are not demanding, at the end of the working day most of the time he is in a lot of back discomfort and relies on extra medication.
86More recently, he set up his own business in the same field, Murphy Community Support Services, with a view to hopefully working less hours for the same pay. His wife also helps out in the new business and if a cleaning service is required which he cannot do, she fills in for him. If he is double-booked, she can take a client for him.
87In the 2023-2024 financial year, he earned $72,859 plus an allowance of $12,159 with Recruit Connect and Care, $1,517 with the Trustee for Little Things Support Services and $47,256 plus an allowance of $12,950 with the Trustee for Stone RN and SR.
88He confirmed the $146,000 he earned in 2023, was the most he had ever earned.[60] He wished he had done that sort of work earlier on.[61] He finds the job extremely rewarding and loves it.
[60] T52.
[61]T53.
Consequences
89Over the years, there had not been really any lessening in the range of his complaints.[62]
[62] Viva voce evidence – not transcribed.
90Since swearing his first affidavit, his symptoms have not improved. He continues to suffer ongoing low back pain which radiates into his left buttock and leg. He experiences numbness down from about his mid thigh.[63]
[63] Second affidavit sworn 15 October 2024 (“second affidavit”).
91There are sharp pains in his left leg which come and go.
92He also experiences bad headaches associated with the pain. If he coughs, symptoms are aggravated. The symptoms are really bad in the cold weather.
Sleep
93Back pain affects his ability to sleep at night and regularly wakes him. He is forever having to change position to get comfortable in bed and has difficulty sleeping on his left side. He is lucky if he manages to get four hours’ uninterrupted sleep and invariably when he has bad sleep, he tends to feel tired during the day. His pain and restriction have also had a significant impact on his physical relationship with his partner.
94He now takes Allegron to help him sleep at night, which is more of a muscle relaxant.
95He agreed he had problems with sleep in 2014, “but not like today”.[64] He did make enquiries about sleep apnoea in April 2018.[65]
[64]T33.
[65]T34.
96He confirmed his back affects his sleep, as he cannot sleep on his back or his left side and has to roll onto his right. Every night he has these problems; he has had enough; it just gets to him.[66]
[66]T70.
Weight gain
97He suspects his weight has gone up a bit due to his relative inactivity as a result of his injury. Fortunately, he has been able to lose some weight, having gone from 150 kilograms down to 140 kilograms through perseverance and exercise, including pool work and a change in eating habits.
98He has been accepted on a waiting list at the Austin Hospital to have gastric sleeve surgery in the following months with a view to losing more weight. In the meantime, he has been pushing himself to work, as he has four young children at home.
Driving
99Driving for lengthy periods exacerbates his pain. Getting in and out of the car can aggravate his symptoms.
Hobbies
100In the past, he used to enjoy riding motorbikes, and owned a road going bike and a dirt bike. He used to ride out in the bush frequently on weekends, often with the kids, who have their own bikes. They no longer take the bikes out on Father's Day and have a barbecue because of his back injury. He cannot remember the last time he attempted to ride his dirt bike. He attempted to ride his road bike a few months ago but found he only managed to last five minutes before having to return home.[67]
[67]First affidavit.
101The first road bike he bought was the Yamaha YZF600 shown in the photograph on Facebook. He bought it because it was cheap and he “obviously wanted to get a motorbike licence”. He found riding it “very discomfort” (sic). He was not comfortable riding it.[68]
[68] T65.
102He bought a V-Star because it is a cruiser. The other bike was a sports bike and the cruiser is a lot more comfortable with its high handles.[69] He rides that now, depending on how he is feeling on the day, sometimes only for five minutes when he is in pain. He told Mr Simm he had not ridden dirt bikes.[70]
[69]T65.
[70]T66.
103“Maybe” he never told any doctors about motorbikes, but denied he did not do so because he thought it would affect his case.
104He also used to enjoy fishing. These days, he finds that he is restricted, in that he can no longer go fishing all day like he used to. He tries to get down and fish for a few hours but that is about it. Fortunately, there are log seats where he fishes, and he finds that he can sit down a bit and it is therefore more manageable for him. He mostly goes fishing on his own although he does have a client who likes fishing. [71]
[71]First affidavit.
105The plaintiff was cross-examined about his history to Mr Simm in December 2020, that he had previously enjoyed fishing and playing pool, but had not done either of these activities for the last year or so. The plaintiff could not recall that conversation, but agreed it was probably correct but then qualified that answer by saying “maybe not so much hadn’t fished”.[72]
[72]T23.
106He agreed he presented to Mr Simm with extremely restricted lumbar movements and limited postural tolerances. He agreed things continued in that pessimistic way through 2021 and right up to today.[73]
[73]T24.
107The Court was then shown film of the plaintiff fishing on 28 January 2021.[74] There was 95 minutes of surveillance, of which film of approximately 10 minutes was shown in Court.[75]
[74]T26.
[75]Time stamps 3:45, 11:30, 16:05, 18:00 and 22:15.
108The plaintiff was shown engaging in various fishing activities: retrieving fishing items (such as an Esky) from his car, baiting his hook, casting and reeling his fishing line, sitting, bending, and walking around. The lower half of his body was largely obscured by thick bushes. The plaintiff confirmed that the footage was taken at his fishing spot near Geelong.
109A brief section of footage showed the plaintiff sitting on the tailgate of his car.
110The plaintiff accepted he was shown fishing on a river and fishing in the ocean in Geelong. While the surveillance operator recorded the plaintiff was fishing from 12.58pm to 4.50pm, that was unusual, but he could not honestly remember. He agreed, in the film, he was shown bending down repeatedly beyond the shrubs, bending down in a very free manner and was shown to walk down a very uneven bank.[76]
[76]T28.
111He also agreed he held a full bend for a few seconds and did a little bit longer than normal quick bend to adjust the fishing reel. He agreed he was shown freely casting and reeling in, and that he was standing while fishing, and at one point leant into the driver’s door of his vehicle in a free manner.[77]
[77]T29.
112He disagreed this was a far cry from how he presented to medico-legal examiners two months earlier. It was not correct he did not give full cooperation when asked by them to move, or that he wanted to portray himself as a little bit more disabled than he was.[78]
[78]Ibid.
113The plaintiff was then shown a Facebook post of his wife fishing with him, posted in January 2019. He recalled going to that spot that was photographed and he recalled that day, although he had trouble remembering lots of thing. He was shown a photograph of a pier posted on his wife’s Facebook page in January 2021. He agreed he would have been fishing twice in January 2021.[79]
[79]T32.
114It is correct, as he deposed, he no longer goes fishing all day as he used to.[80]
[80]T67.
115He was able to sit on the tailgate of his car. He demonstrated how he could pick things up, picking up a rubbish bin in the courtroom, bending at the waist and also using his legs.[81]
[81]T69.
Sport
116His young bloke is getting into footy now, and he used to play football himself in his younger years but these days, because of his back injury, he has difficulty kicking a football around with him.
117Before his back injury, he enjoyed playing darts and participated in competition pool. He does not know if he can resume those activities now because of his back injury but found that he ended up giving it away regardless when they moved to Geelong, as he did not really know too many people in this area.
Lifestyle and domestic life
118Not only has his injury impacted his ability to perform unrestricted work, it has also had a significant impact on his day-to-day life. First and foremost has been the impact on his ability to interact with his children. He can no longer, for example, get down on the floor to play with them or engage in outdoor activities with them. When they are on the trampoline, he cannot get on and participate but simply has to stand and watch them, and would struggle to help them if they fell off.
119He has difficulty being on his feet or sitting or walking for prolonged periods and he is now restricted in terms of heavy lifting. In the past, he had little difficulty lifting up to 50 kilograms, but these days, he might be able to manage up to about 10 to 15 kilograms.
120Even basic tasks, such as putting on his shoes and socks and cutting his toenails, can be a struggle.
121Due to the fact he is restricted in terms of performing any gardening, they have a gardener, who is paid for through their rent, to mow the lawns and trim the bushes for them as this would simply be too difficult for him. On one occasion their gardener was ill, and the plaintiff attempted to mow the front nature strip lawn which is quite small, approximately 1 x 5 metres. He did one lap of the lawn and found it a struggle and had to get his wife to finish it off for him.
122His wife normally attends to gardening and does most of the domestic chores. He needed her to help him to put together a Weber barbecue.
123He finds tasks such as washing the car can be difficult and more often than not, he will either pay the children to wash the car or take it through an automatic carwash.
124There are not many home chores he can perform because of his injury. He performs basic tasks such as hanging up the clothes in the wardrobe. He also used to assist with cooking, but his oldest daughter has now taken this over and he is not too upset by that.
125He has difficulty picking up the younger children (aged six and nine) and engaging in horseplay because of back pain. He cannot help but feel like he has let his children down and that is why he tries to work as much as possible.
126He cannot go bike riding with his children and the most he can do is walk around the block with them while they are on their scooters or go for a short beach walk with them.
127He finds it difficult sitting for a long time in the movies, so tries to go to Gold Class if possible.
128The family flew to Queensland for a holiday in February 2024 and went to theme parks, but he was not able to go on any of the big rides because of his back, and had to constantly stop and rest.
129He had to keep getting up and walking about the plane to stretch his back during the flight and also tried to ensure he had an aisle seat so he could stick out his leg. Most of the time, when they were getting around Queensland in a bus, he made sure he had a spare seat next to him.
130He did go on a jetboat ride while in Queensland but that was a rare occasion that he was actually able to do something with the children, but ended up paying a price for it.
131In cross-examination, he confirmed the range of difficulties deposed to.
The TAC conviction
132The plaintiff agreed he had a number of criminal convictions.
133On 25 January 2021, he was fined $2,000 for providing false information to the TAC. He was claiming car allowances for visiting his brother, who was involved in a transport accident, when he had not actually made all the trips claimed. He understands what he did was wrong and certainly learned his lesson.
134He has almost finished repaying the TAC $12,000. He worked hard to repay the money, having made significant efforts to improve himself, completing the Certificate IV and actively working to make a positive difference within the community. That episode was perhaps the most shameful and embarrassing moment in his life and he had taken responsibility to ensure he moved forward as a better person.
Lay evidence – the plaintiff’s wife
135The plaintiff’s wife, Cheri Murphy, swore an affidavit on 17 October 2024. They have been together for about ten years, marrying in February 2022.
136She has been employed since the end of 2023 as a disability support worker with Stone Support, the plaintiff’s employer. Before that, she worked as a prison officer, ceasing work in April 2022 to take care of their children – their daughter has Type 1 diabetes and their younger son, an intellectual disability as well as congenital heart disease. The other two children also have medical conditions.
137She works on a casual basis as she still needs to care for the children and takes shifts around their appointments and manages to work two to three days a week, sometimes.
138She swaps jobs with the plaintiff when they are too strenuous for him and she can also take over his shifts.
139She is also assisting with Murphy’s Community Support Services, setting up that business. She helps with the paperwork as the plaintiff is hopeless with computers, and she attends to social media. She helps with clients who require house cleaning, as the plaintiff would be unable to do it because of his back.
140When the plaintiff commenced work with the employer in about 2016, his job was physically demanding. At that time, he was relatively fit and well, noting he did not obtain his driver’s licence until he was thirty-seven and either used to walk or cycle everywhere.[82]
[82] T75.
141She denied, by mentioning the plaintiff walking and not having a licence, she was trying to give the impression he was then fit and well.[83]
[83]T81.
142She was not sure where the plaintiff was working when they first met, but she thought it was in the sausage factory.[84] At that time, the plaintiff had an issue with marijuana. She was aware of his convictions, including the TAC matter.[85]
[84]T79.
[85]T80.
143As a result of his work, the plaintiff was suffering from back symptoms leading up to and including Christmas 2019.[86]
[86] Affidavit sworn 17 October 2024.
144He suffered a flare-up the day after Boxing Day. They bought a 40-inch TV which was quite light and their six-year-old could lift it on her own. One morning he decided he would screw the legs into the TV to make it more stable and he called her later that day to tell her that he had done his back again doing that. When she arrived home from work, the plaintiff was in pain and told her that all he did was slightly bend over and lift the TV to put the legs on it and that was it.
145Shortly after that, they travelled to Kingston in South Australia on New Year’s Eve and then Mount Gambier, before returning home on 13 January 2020. That was their first trip away since purchasing a new camper; however, it turned out to be an absolute nightmare.
146The plaintiff whinged about his back the whole time. Even though the camper had an extra thick mattress, he tossed and turned at night. Whenever they went for a walk and went to explore a cave, they had to stop constantly because of his back pain. Although he would try and push through it, it was a miserable vacation.
147The camping trip to South Australia was an absolute nightmare emotionally and it was absolutely draining, and the plaintiff pretty much whinged about his back the whole time. Their first supposed family holiday away was emotionally, mentally and physically a nightmare for her.[87]
[87]T84.
148When asked about the “occy tossing,” she explained the plaintiff just refuses to lie down. He will constantly push, and push, and push, until he can go no further. He refused to be left behind in life when it comes to family activities.[88]
[88]T86.
149She was “absolutely cheering him on” when he was doing the “occy tossing.” It was an absolutely enjoyable moment, but it was only a small one. It did not reflect what was going on during the day.[89]
[89]T88.
150While the plaintiff has been in a wheelchair, it was never on that holiday. She had a photograph of it on Facebook. She could not remember the plaintiff putting the children on his shoulders during that holiday.[90]
[90]T91.
151Since his injury, the plaintiff had tried his best to get involved in their children’s lives but ended up paying the price with increased symptoms and restrictions.
152He tried to get involved in their six-year-old’s Auskick but could not manage and their son stopped going.
153The plaintiff might take a soccer ball to the beach or the park and try kicking it around, but after about five to ten minutes he is done.
154He has given up attending school assemblies as they require him being on his feet for long periods. He does go to a concert where he can be seated, although he has to get up and stretch.
155In a nutshell, basically the plaintiff has really isolated himself from the children’s activities. He tries to muck around with them while seated at the kitchen table, trying to grab and tickle them, but not much more.
156She finds herself doing about 90 per cent of the housework and, fortunately, their teenage children are an amazing help.
157The plaintiff feels bad not being able to help out and attempts to do the dishes or bring in the washing, but not much more.
158She does most of the gardening these days, including weeding, shovelling, watering, mowing and whipper snipping. The plaintiff has attempted mowing the front patch of the lawn that is quite small and flat, but even then, he has had to come in and sit down because he has had it.
159The plaintiff does his best but ends up paying the price with increased symptoms and restrictions.
160She confirmed the plaintiff’s problems with gardening and mowing. She has never said he is very disabled.[91] He is really quite hopeless in terms of what he can do.[92]
[91]T93.
[92]T94.
161Every morning, she asks how he has slept as many times she wakes during the night and finds him suffering with pain. Sometimes she finds him on the edge of the bed sobbing because he cannot sleep and he is so tired.
162He cannot sleep because of his pain.[93]
[93]T99.
163She regularly sees the plaintiff taking tablets in the morning and evening.
164Their sex life has been dramatically affected and sometimes after they are intimate the plaintiff is in so much pain that they do not attempt anything for a long time after.
165When criticised for not mentioning the plaintiff riding motorbikes in her affidavit, she said there was “so much more she could say”. She was not being selective, nor exaggerating his issues.[94]
[94]T95.
166She thought, since moving to Geelong, the plaintiff had attempted to ride the dirt bike once, maybe twice, and they had actually sold all those bikes, except for the road bike.[95]
[95]T96.
167Sometimes she goes fishing with the plaintiff.[96]
[96]T97.
168They went on a family trip to Queensland and she went on the jet boat ride with the plaintiff. She agreed that was an enjoyable activity for her and her family.[97]
[97]T98.
169In re-examination, she described the plaintiff’s commitment to his family; they mean absolutely everything to him, and “having to sit out really gets to him”. He does not show that to the outside world. “Behind closed doors he is a mess.” He still pushes through everything and feels shocking afterwards.[98]
[98]T103.
Plaintiff’s treaters
Dr Pretorius, Ararat Medical Centre
170In his June 2020 report, Dr Pretorius diagnosed the plaintiff’s condition as degenerative changes of his lower back with nerve root compression, worse at the left L3 nerve root. “Although he was better”, he might have continual issues with his back injury. He had a nerve root injection and was on medication. Physical therapy might also help.
171The plaintiff’s prognosis was then uncertain and one would hope he improved over time, but he might need an operation if his injury kept relapsing. He was then being prescribed Duloxetine and Pregabalin.
Dr Gounder, general practitioner, Waurn Ponds Medical Centre
172In his August 2022 report, Dr Gounder noted the plaintiff was a patient at Ararat at the time of the related back injury, consulting Dr Ghazal on 25 June 2018, and other doctors on multiple occasions thereafter.
173The plaintiff had been a patient at Waurn Ponds from 1 June 2021 and was first seen for back pain on 6 January 2022. The history was back pain started some years ago due to work. The plaintiff had lower back pain with radiation to the left leg, with reduced feeling in that leg. He reported he had these symptoms since his previous encounters with back pain.
174An MRI scan was organised on 16 June 2022 and a left L3 nerve root transforaminal epidural was suggested.
175The plaintiff was referred to Mr Nair, neurosurgeon, who suggested a lumbar steroid injection. The plaintiff underwent a CT-guided left L3 lumbar perineural steroid injection on 12 August 2022.
176The plaintiff’s current symptoms due to back issues were likely to cause significant difficulties to do a regular job involving repeated physical tasks. He could retrain for a job that did not involve labouring or repeated physical tasks. To identify what sort of training he could do based on his qualifications and ability, that would have to be discussed with the plaintiff and a plan made as he was not an occupational physician.
177The plaintiff’s back problem was likely to restrict his social, domestic and recreational activities for the foreseeable future and he was likely to be limited from moderate to severe, depending on the type of activity.
178The plaintiff saw Dr Gounder at his Torquay clinic in April 2024.
179Dr Gounder noted the plaintiff had been seen by Dr McCoy at the Pain Matrix Clinic at Epworth.
180Recently, the plaintiff had consulted regarding his neck pain and had an MRI scan.
181Dr Gounder repeated his earlier comments about the plaintiff’s difficulty doing physical work because of his back and that he could retrain for a job that did not involve labouring or repeated physical tasks. An occupational health physician’s advice should be sought.
182The plaintiff’s back injury is likely to be permanent, based on the duration of symptoms without significant improvement and various treatments, including specialist input. Certainly, his back injury will limit his ability to perform pre-employment duties for the foreseeable future, but there may be jobs he can do. The injury was also likely to restrict his social, domestic and recreational activities.
183The plaintiff’s back injury is chronic and unlikely to improve significantly in the foreseeable future.
Dr Virginia Croke, chiropractor
184Dr Croke reported in August 2024, having seen the plaintiff in April 2022.
185The plaintiff reported his low back pain began after a work injury and it had occurred consistently since then. Lumbar imaging in February 2022 revealed diffuse degeneration and foraminal stenosis related to disc protrusions throughout the lumbar spine. This has had a significant impact on the plaintiff’s quality of life.
Dr Tara Vearing, chiropractor, Grovedale
186Dr Vearing reported in August 2024.
187The plaintiff presented at that practice in July 2024 with upper thoracic and left scapular pain that started three weeks prior, and low back pain that commenced after an injury in 2016. Lower back pain was ongoing and it had increased more recently since his original injury in 2018.
188Scapular shoulder and arm pain had multiple origins. Paraesthesia of the left lower arm was aggravated by probable nerve root impingement of C5-6 nerve roots associated with left arm and shoulder weakness. The plaintiff had forward head carriage and weakness or related postural scapular musculature.
189The plaintiff was then working as a support worker with clients and could not do heavy work.
Mr Nair, neurosurgeon
190Mr Nair wrote to Dr Gounder in June 2022 thanking him for referring the plaintiff.
191He advised the initial approach should be conservative treatment and the plaintiff needed to work hard on modifying his diet to lose weight. Mr Nair sought the GP’s assistance in starting the plaintiff on a combination of anti-inflammatory medication and neuromodulatory drugs to help with his left leg pain. He also planned a CT-guided left L3 injection.
Dr Khullar, pain physician and psychiatrist – Pain Matrix, Geelong
192Dr Khullar reported in August 2024.
193He noted the plaintiff used to work at meatworks in 2016, when the injury happened, with work involving repetitive bending movements cleaning hooks.
194The plaintiff reported significant time off – about three months – after which he went back on light duties for four to five months. He had experienced chronic low back and left leg pain since then.
195The current diagnosis was mixed nociceptive and neuropathic low back and left leg pain.
196There had not been an aggravation of a pre-existing medical condition because the plaintiff did not report pre-existing low back and left leg pain.
197Significant barriers in getting approval for treatment requested had not been helpful for pain management, with a request for a caudal epidural injection declined after months of deliberation, the rationale for the request being clinical findings of discogenic pain which was also in keeping with the MRI findings of prolapsed discs.
198A few left L3 cortisone injections since injury had helped manage the plaintiff’s pain for a few months. If injections are not deemed helpful, a nerve root sleeve injection followed by radiofrequency at an appropriate level could be considered.
199Unfortunately, they had not been able to move forward with interventional pain management due to declined treatment requests. The only one being approved so far was for a multidiscipline assessment with the team and pharmacological management. The plaintiff was currently on pain-related medications, Tapentadol, Gabapentin and Nortriptyline.
200Approval for requested treatments would be very beneficial for the plaintiff’s recovery.
Investigations
201Following a lumbar CT scan on 7 August 2018, it was reported there was significant degenerative central canal stenosis at L4-5 and left exit foraminal stenosis at L3-4. It was suggested the plaintiff may benefit from an L4-5 epidural injection.
202There was a lumbar CT scan on 2 July 2019, following which it was reported there was degenerative canal and bilateral foraminal stenosis at L4-5 and a left foraminal stenosis at L3-4.
203The plaintiff had a lumbar CT scan and nerve root block on 12 February 2020.
204The plaintiff had an MRI scan of his lumbar spine on 16 February 2022. It was reported there was:
“Left L3 nerve root impingement at the left L3/4 neural foramen due to disc protrusion here.
Left subarticular recess and left neural foraminal stenosis at L2/3 that appears more acute contacting the left exiting L2 and traversing L3 nerve roots.
At L2/3 and L4/5, mild spinal canal stenosis.
In the present situation, left L3 nerve root transforaminal epidural suggested.”
205There was an x-ray of the cervical and lumbar spine and pelvis on 30 July 2024. The clinical information was “previous disc injury L3- S1. Radiculopathy.”
206There was an MRI scan of the cervical spine on 29 August 2024.
207It was reported there was multilevel mild disc degenerative changes with no high-grade central canal stenosis at any level. There was moderate right neural exit foraminal narrowing at C5-6 and C6-7 levels, secondary to uncovertebral degeneration. There was no high grade left-sided neural exit foraminal stenosis. The left shoulder symptoms do not appear to be originating within the cervical spine.
208The plaintiff also relied on a number of reports obtained by the insurer.
Dr Simon Locke, sports medicine physician
209Dr Locke saw the plaintiff in February 2020 in relation to the May 2018 injury.
210In particular, he noted the plaintiff’s low back originated in the hook room and had been progressive and persistent ever since. The hook room entailed lifting and or repetitive bending. On this particular occasion, prior to work stopping before Christmas, the plaintiff complained of increasing left-sided low back pain radiating down his left leg.
211He thought the plaintiff’s persistent low back pain was related to his work. This was an aggravation of a previous mechanical low back pain. It was complicated by the plaintiff’s previous laminectomy, but he had had no symptoms following that. His symptoms occurred following repetitive bending and lifting at work.
212The plaintiff’s work initiated the injury when he was working in the hook room. He could find no evidence in the past of rehabilitation and normalisation of trunk endurance.
213The plaintiff did not have a current capacity for his work as a drover and he expected the duration of the incapacity to be at least three months, depending on the adequacy of further treatment.
214The plaintiff had mechanical low back pain, for which he had had an apparent CT-guided injection. He had evidence of central sensitisation and decreasing physical capacity.
Mr Rodney Simm, orthopaedic surgeon
215Mr Simm examined the plaintiff in December 2020.
216The plaintiff’s work with hooks involved prolonged and repetitive bending.
217Following his back injury, the plaintiff’s work duties were restricted to light work, such as cleaning with a hose. When his symptoms improved, he was given the job of working as a drover in January 2019, which involved herding animals on foot and also using a four-wheel motorcycle.
218The laminectomy in November 2000 was not mentioned when the plaintiff started this job as he did not believe it was of any relevance. He recovered fully following that operation and, over the years since, had undertaken heavy manual work and undertaken other physically demanding activities without symptoms.
219In an incident report on 29 May 2018, the injury was described as constant bending over on and off a forklift on that day, as a result of which the plaintiff had a stiff back.
220The plaintiff reported no significant pre-existing history of back pain before that day, but he had suffered from intermittent back pain, which had not required treatment or interfered with his work capacity.
221Mr Simm summarised the plaintiff’s GP’s notes from 25 June 2018 until 2 June 2020.
222Initially, the employer took responsibility for the plaintiff’s treatment. It was not necessary to submit a formal claim, but when it was ultimately accepted, there was some uncertainty about whether it would be accepted.
223On examination, the plaintiff complained of back pain, radiating to the left leg, which had been quite bad over several months and of a variable nature. Movements of the lumbar spine were extremely restricted.
224Mr Simm noted the plaintiff had not ridden a motorcycle in the last year. He had not played pool or gone fishing for the last year or two.
225Mr Simm found the case difficult to assess, noting the gap of a month until 25 June 2018 when there was a contemporaneous medical record relating to the back pain. The GPs set out symptoms were still problematic in August, but by November 2018, the plaintiff had almost fully recovered.
226There was then a further exacerbation of pain in mid 2019 without incident. The plaintiff was said to have fully recovered from that by September 2019, when he went back to full duties with no complaints of pain, and then there was presumably a period of freedom from pain until he developed recurrent pain while on holidays on 27 December 2019.
227By April 2020, the plaintiff’s exacerbation of back pain had presumably improved because he requested normal duties, which he continued until he left the abattoirs in September 2020.
228Employment was definitely an exacerbating factor and work duties had caused significant symptoms from the underlying degenerative lumbar spine pathology, but considering the periods of improvement, the plaintiff’s ongoing symptoms related more to the underlying constitutional degenerative pathology than to any lasting effects from factors relating to his employment with the employer.
229It could be argued that the initial injury, which was significant pain with prolonged bending and stooping, had been the starting point of the plaintiff’s ongoing relapsing back pain and that there was some damage to the compromised degenerative structures of the lumbar spine as a result of the plaintiff’s work-related claim and that this had contributed to some degree of acceleration of the degenerative process.
230Even allowing for this hypothesis, the contribution from employment would be small and difficult to quantitate.
231The plaintiff now had an established pattern of chronic back and leg pain which would persist into the foreseeable future.
Associate Professor Goldwasser, orthopaedic surgeon
232Associate Professor Goldwasser examined the plaintiff in April 2021 for the purposes of an impairment assessment.
233There was an episode at work in May 2018 in a spine which had previously had surgery, an L4-5 discectomy and laminectomy in 2000, following which the plaintiff had had a good recovery.
234The 2018 injury probably aggravated the plaintiff’s previous back condition and this time there was evidence of radiculopathy in the left side with absent left knee reflex and muscle atrophy in the thigh and calf and altered sensation in the left lower extremity, consistent with radiculopathy involving the territory of the L4 nerve distribution.
235The condition continued to fluctuate from time to time, but overall had remained much the same for a long period of time, probably longer than six months, and there was no current plan for surgery.
Plaintiff’s medico-legal evidence
Mr Thomas Kossmann, orthopaedic surgeon
236Mr Kossmann examined the plaintiff in October 2020 by video.
237The plaintiff told him he was working at an abattoir for about four years, with his job being to sort out the sheep. To do that, he had to constantly bend to get the hooks out of tabs and, as a result, developed pain in his lumbar spine.
238The plaintiff saw his GP on 25 June 2018 and was taken off work for two months. On his return, he continued to suffer from ongoing pain issues in his lumbar spine. He had a lumbar CT scan on 7 August 2018.
239The plaintiff continued to work.
240The plaintiff had a further CT scan on 2 July 2019 as he continued to suffer from back pain.
241The plaintiff advised that he suffered from an aggravation of his lumbar spine condition on 26 December 2019. When he bent over to screw in one of the legs of a TV, he suffered some severe back pain. He rested and then went on a holiday to Mount Gambier. However, during that time, he had difficulty walking and his partner had to push him in a wheelchair.
242There was a further lumbar CT scan in January 2020. The plaintiff underwent a lumbar CT nerve root block in the intervertebral foramen of the left L3 nerve root on 12 February 2020.
243The plaintiff was not able to go back to work until June 2020, when he started on light duties. He underwent a capacity test with a physiotherapist. He then continued to work until 15 September 2020, when he stopped working for the abattoirs and had moved to a new location.
244The plaintiff had been working for the previous fortnight as forklift driver, five hours a night, five nights a week.
245On examination, the plaintiff reported no pain in his back. He had pain in the left leg and complained of numbness from the left knee down to his left ankle. He could walk for 10 to 15 minutes, and had difficulty driving for a long period and difficulty putting on his socks. He had difficulty sleeping and could not find a comfortable position.
246The plaintiff advised that he had had a back operation in 2000.
247Having left school halfway through Year 9, the plaintiff then worked in abattoirs and in a sausage factory. During that time, he lived in Melbourne and worked as a forklift driver and then in various factory positions, polishing stainless steel. He then started work with the employer in Ararat at the abattoir.
248The diagnosis was acute upon old injuries of the lumbar spine on a background of significant degenerative changes affecting all levels of the lumbar spine, with left exit foraminal stenosis at L3-4, significant degenerative central canal stenosis at L4-5 and most likely compression of the right L5 nerve root.
249The plaintiff suffered these injuries as a result of his work in an abattoir. He suffered from an aggravation of his lumbar spine on Christmas Day.
250The plaintiff’s present condition was still causally related to the employment.
251The lumbar spine prognosis was poor and the plaintiff would continue to suffer from pain for which he would require further treatment with medication and anti-inflammatories and may also benefit from physiotherapy.
252For the foreseeable future, the plaintiff would not qualify for any physically demanding work or work where he had to walk long distances on uneven ground, upstairs, downstairs, inclines, declines, climb up and down ladders, kneel, squat or carry heavy items weighing more than 5 kilograms.
253He recommended the plaintiff undergo a vocational assessment to see if he qualified for modified light duties. At most, he would be able to work 20 to 25 hours a week on light modified duties for the foreseeable future.
Mr Peter Lugg, orthopaedic surgeon
254Mr Lugg first examined the plaintiff in August 2023.
255The plaintiff told him the first injury he had at the abattoir was in 2016 when working on the hooks caused back pain. He had some physiotherapy but kept working and did not put in a claim. The back pain was intermittent.
256The plaintiff’s current complaints were back pain and left leg pain radiating from the knee to the ankle with associated numbness. The symptoms had been pretty much the same now for some time.
257On examination, range of movement of the lumbar spine was inhibited 25 per cent generally, with maximum tenderness at L4-5 and L5-S1. The plaintiff had numbness in the L5 and S1 nerve root distribution on the left and had a wasted left calf.
258The plaintiff had described ongoing back pain for many years, presumably sciatica, back in 1999 when he had decompression surgery, and more recently, sciatic pain, again involving both legs.
259The pathology showed significant degenerative changes in the lumbar spine, particularly at L4-5, with associated stenosis at L4-5 and L3-4 that would explain leg pain.
260The likely contenders for the precise cause of degenerative change were increasing age, previous smoking was also a very likely contributor, and undoubtedly the plaintiff’s weight at 150 kilograms was a large contributor.
261However, it was also conceded that repetitive loading to the lumbar spine contributed to degenerative changes, particularly in the lower lumbar discs.
262The specific incident in 2018 when the plaintiff was lifting hooks out of a tub appeared to be directly related to the development of his left leg pain. The CT scan taken soon after demonstrated stenosis at L3-4 on the left, with possible compression of the L3 or L4 nerves on that side. A further CT scan in July the next year also demonstrated a small left protrusion, further compressing the left L3 nerve root.
263The evidence would be that the work the plaintiff was performing contributed to this left leg pain. The evidence would also suggest that the heavy work he had performed would have also contributed to some extent to some of his degenerative back disease.
264Appropriate treatment had been started with a nerve root injection, although it appeared not to have given the plaintiff complete relief of symptoms. Repeat injections, possibly even decompression, if the left leg pain was becoming unbearable and not responding to conservative management, might be something to consider.
265The injury in late May 2018 was likely to have been an aggravation of L3 nerve root irritation, with a likely posterolateral disc protrusion and in the context of preexisting L3-4 foraminal stenosis on the left. This had led to a sudden increase in leg pain and the pattern of that pain was consistent with the likely nerve root involved.
266The injury of late May 2018 stopped the plaintiff working for some time. It had likely resolved by December that year. There was a recurrence of pain which was apparently unrelated to work in December/January 2018/2019.
267The leg pain was on top of a problem with ongoing intermittent back pain which was partly due to age, the fact the plaintiff was a smoker, and significantly due to his obesity. There was also a contribution from the fact he performed heavy loading work on his lumbar spine for many years.
268The incapacity from the back condition would continue into the foreseeable future and it made it very difficult for the plaintiff to perform activities that load the lumbar spine, such as working as an abattoir worker.
269The plaintiff was able to perform suitable employment which excluded loading the lumbar spine. Work as a disability aid assistant was an excellent choice. The plaintiff seemed to enjoy it and it helped his emotional state.
270As a consequence of the actual injury sustained in May 2018, there was a significant impact at the time and for about six months; however, most of the effects of that injury had now resolved.
271The plaintiff was re-examined in September 2024.
272Since the earlier examination, the plaintiff had been having pain management at Epworth.
273On examination, the range of lumbar movement was markedly restricted, more due to the plaintiff’s concern that he would make his back pain flare up if he put his spine through a range of movement.
274Current symptoms were largely of back pain and left leg pain, with the plaintiff describing back pain nowadays more in the left buttock. The right was fine and now asymptomatic. If anything, the plaintiff said left leg pain was worse. There was also associated numbness from the mid thigh on the left and he could not kneel on the left knee because of these symptoms.
275It remained his opinion the plaintiff undoubtedly had a constitutional tendency to develop degenerative spinal disease or spondylosis. There was a small but, in his opinion, significant contribution to the spinal problem due to the injury in May 2018.
276Specifically, this was an injury in which the plaintiff developed a disc prolapse and sciatica on the left. Currently, it was that left leg pain that was becoming increasingly painful, in contrast to his back which was somewhat less painful than it was in the past.
277The plaintiff’s physical incapacity would continue indefinitely. He still did not have the capacity to return to pre-injury employment and he doubted the plaintiff ever would.
278The current physical impairments had an effect on the plaintiff’s social, domestic and recreational activities.
Defendant’s medical evidence
Medico-legal evidence
Dr Dush Shan, consultant psychiatrist
279Dr Shan examined the plaintiff on 16 December 2020 in relation to the 29 May 2018 injury.
280He thought there was no current psychiatric diagnosis. Non work-related factors were not then identifiable. The plaintiff’s partner seemed supportive and the children were in good health.
281In terms of the history of the injury, there was bending over with the hook and noticing increasing back pain. The plaintiff spoke to the office when it was severe and he had some days off. He saw a doctor in Ararat and had periodic days off work. The employer was supportive and paid him wages. He thought he took two weeks off on that occasion. He returned to work, but kept having intermittent episodes of that nature, for which there were medical consultations. This cycle kept repeating itself until Christmas, when he was in fact simply bending over a TV when he had a severe back spasm.
282The plaintiff then had to cease work altogether and spoke of a stressful time because of financial detriment. He received WorkCover payments briefly and after a gap. Centrelink denied him eligibility for benefits due to his partner’s income. At the same time, he could not resume work.
283It then appeared the plaintiff’s partner obtained a transfer to Geelong prison, which led to them moving to Grovedale.
284The plaintiff stopped physiotherapy when he could no longer afford it. He did not describe any current treatment, except for occasional use of non-prescription medications, mainly when his condition flared up. It appeared that, since he ceased work altogether, severe spasms were infrequent, so that he only took Lyrica when he needed it and Tramadol only if there was a severe episode.
Dr Armin Drnda, neurosurgeon
285Dr Drnda first saw the plaintiff in February 2024, re-examining him in May that year.
286In his first report, he gave an extensive summary of the plaintiff’s personal and employment history, and the history of injury, starting with the Incident Report of 29 May 2018 and subsequent treatment, including Dr Ghazal’s comment on 7 November 2018 that “the back is 95% better and he could do full duties”. On 7 January 2019, Dr Ghazal recorded, “back is good, no pain for 3-4 weeks, happy to get back to full duties role”, and the plaintiff was then certified fit to return to his unrestricted pre-injury employment.
287The plaintiff saw a physiotherapist on 28 June 2019, having had a fall the day before. He was discharged on 11 September that year, with his back “feeling really good”.
288There was then the TV incident.
289There were subsequent GP attendances in January 2020 after the plaintiff’s return from South Australia, with improvement in pain in March and in April, Dr Pretorius noting the plaintiff wanted to go back to work part time doing light duties. On 2 June 2020, Dr Ghazal reported that the plaintiff was doing reasonably well and was going back to full-time duties.
290While on 11 August 2020 the plaintiff saw the physiotherapist, having reported he had been hit in the back by a sheep, it was noted the plaintiff was good now, nil pain from the impact, leg still gets sore, currently nil symptoms, and he was discharged from her care.
291Effective 18 September 2020, the plaintiff resigned from work with the abattoirs and the following month relocated to Grovedale.
292The next GP attendance was 28 July 2021 with Dr Gounder, with the next attendance on 14 February 2022.[99]
[99]The next attendance with Dr Gounder for back pain was in fact in January 2022, not June 2021.
293There was an MRI scan in February 2022, chiropractic treatment starting in April, a CT-guided left L3 nerve root injection in August and a further injection later that month.
294Dr Drnda also noted that the plaintiff had a right-sided L4-5 laminectomy and discectomy and decompression of lateral recess stenosis on 1 November 2000.
295On 8 May 2017, it was noted the plaintiff was very obese, BMI 39.4, weighing 134 kilograms. Over the next four years, his weight gradually further increased, with a BMI of 46.4 on 24 February 2022.
296Dr Drnda answered a number of questions.
297He thought, before the commencement of work with the employer in April 2016, the plaintiff likely had occasional back pain, having had surgery in 2000. That indicated he had a strong genetic predisposition to develop a significant early spinal condition.
298A CT scan, first performed in August 2018, showed changes that were very chronic, indicating a longstanding lumbar spondylosis. The plaintiff’s obesity, and later morbid obesity, along with smoking, were significant additional factors in the premature degenerative changes in his spine, which ultimately resulted in chronic pain.
299There were no significant differences over time of the pathology from the CT scan of August 2018 to the MRI scan of February 2022.
300The plaintiff’s repetitive work as a labourer and forklift driver aggravated significant pre-existing lumbar spondylosis treated pain. He also believed that condition was resolved before 23 December 2019, when the plaintiff went on his Christmas break.
301There were no significant changes in the imaging. Findings on the CT scans were stable and predated employment, and the effects of aggravation were not seen as structural changes in the lumbar spine.
302The TV incident was a new aggravation of underlying constitutional advanced lumbar spondylosis, part of the natural history of the condition, which could be sometimes triggered by various innocuous situations.
303The plaintiff’s incapacity for work on 20 January 2020 was a result of the TV incident and part of the natural history of his lumbar spondylosis on the background of morbid obesity and previous long-term smoking.
304The February 2022 lumbar MRI scan revealed acute disc prolapse at L2-3 on the left, which had the appearance of the event that happened a few weeks to a few months before. That would be in keeping with the natural history of significant lumbar spondylosis with unresolved morbid obesity and the change could not be attributed to doing any work before 18 September 2020.
305Advanced constitutional lumbar spondylosis is genetically predisposed and significantly aggravated by morbid obesity and tobacco smoking. Even without smoking and morbid obesity, the natural history of the condition would advance quickly and result in additional issues, like disc prolapses, spinal instability and advanced osteoarthritis in the facet joints.
306The likelihood of these events is very likely. To precipitate symptoms from the spine with such a degree of degeneration as the plaintiff’s, there is no need for significant mechanical stress, with even simple events like coughing possibly triggering significant symptoms.
307The further two CT-guided injections targeting L3 were identified purely on radiological grounds, which was not definite nerve root compression.
308On re-examination in May 2024, the plaintiff disputed the timing of his injuries, stating he developed lower back pain in 2016, several months after he started work, and was told by his employer not to claim WorkCover. He was put on light duties hosing for eight or nine months.
309The plaintiff advised that leading to Christmas 2019, he was working as a drover and did not have many symptoms. He confirmed injury while assembling a TV set.
310The plaintiff could not remember seeing his GP on 15 January 2020. He was unsure whether his leg pain started immediately upon returning to work after the holiday to South Australia.[100]
[100]Dr Maleque’s note of 15 January 2020: “got left leg pain for few days and its not going away, had back problem before.”
311On examination, the plaintiff complained of constant lower back pain, at best 6/10 and at worst, 9/10. He also experienced pins and needles in the big and second toe of the left foot and the pain often spread to the left hip. Sitting and walking tolerances were limited.
312In general terms, the plaintiff largely recovered from the 2018 episode and from January 2019, worked full time as a drover, although having physiotherapy to 11 September 2019. In that period, he had a fall at work on 27 June 2019, which temporarily aggravated his condition. After discharge from physiotherapy he did not take any medication and worked without problems until Christmas with the TV incident.
313On examination, there was evidence the plaintiff had at some point developed central sensitisation.
314The diagnosis was constitutional advanced lumbar spondylosis, which was temporarily aggravated with his work at the abattoirs. That condition was resolved before Christmas.
315The wider diagnosis was constitutional advanced lumbar spondylosis, left-sided meralgia paraesthetica and central sensitisation.
316The TV incident was a new aggravation of underlying constitutional advanced lumbar spondylosis. That was part of the natural history of the condition and sometimes very innocuous situations could trigger significant lower back pain.
317The plaintiff’s symptoms related to his constitutional advanced lumbar spondylosis. His morbid obesity was also the cause of the left-sided meralgia paraesthetica and at some point he had developed central sensitisation.
318The plaintiff does not have a capacity to perform pre-Christmas 2019 duties as a drover full time and potentially could do it part time. The cause of that situation was a progression of his constitutional spondylosis due to unresolved morbid obesity.
319The plaintiff has a capacity to perform current employment working practically full time as a disability support worker.
320Multidisciplinary pain management is a reasonable and appropriate treatment for the plaintiff’s lumbar spine condition, none of which is work related.
321The plaintiff will remain with chronic pain with frequent flare ups. He is quite motivated to work, which helps him to manage at least his emotional response to chronic pain. The best help to reduce the pain intensity and frequency of flare ups would be significant weight loss.
Lay evidence
322Elisha Reid, the employer’s HR & Return to Work Coordinator, swore an affidavit on 22 July 2024, exhibiting a statement she made to WorkCover on 24 February 2020.
323The plaintiff completed an Incident Form on 29 May 2018.
324On 11 September 2018, the plaintiff’s physiotherapist reported to her that the plaintiff’s back injury had resolved and certified him fit for normal duties.
325The plaintiff continued to work performing his unrestricted full-time work without complaint or issue until the end of work on 20 December 2019 when he commenced his Christmas break.
326On 16 January 2020, the plaintiff advised her by phone that he had hurt his back on holidays moving his kids’ TV when he felt his back just go. He also told her he could not return to work because of the “TV incident”.
Surveillance summary
327There were 55 hours of surveillance over 14 days between 2021 and 2024. One hour and 35 minutes and 30 seconds of film was tendered. That was the only footage obtained on 28 January 2021. There was a further 17 minutes and 57 seconds of film obtained over three days in February 2021. There was 7 minutes and 26 seconds on 16 December 2023 and one minute and 18 seconds obtained between 27 October and 1 November 2024.[101]
[101]T139.
Overview
328While it was conceded there was a compensable injury,[102] the Court also has to be satisfied that injury is a significant contributing factor to the plaintiff’s current spinal condition of advanced lumbar spondylosis.
[102]T122.
329That issue must be established in addition to establishing the ordinary causal, temporal or risk connection.[103]
[103] Zlateska v Consolidated Cleaning ServicesPty Ltd & Anor [2006] VSCA 141 at paragraph [3].
330Whether employment is a significant contributing factor to an injury is an essentially factual enquiry, the question being one of degree requiring evaluation.
331In Popovski,[104] Ashley JA held tentatively that the word “significant” in “significant contributing factor” meant of considerable amount or effect, stating that:
“There is an area of overlap between the two dicta. Within the area of overlap there is, I think, a point of disagreement. The minimum requirement of the Meddis formulation is that the contribution of employment to injury be ‘more than de minimis’. The single requirement of the Allman formulation is that such contribution be ‘of considerable amount or effect’. As presently advised (the matter was not much argued, although the questions framed by the Master require an understanding of the statutory requirement), I consider that the Allman formulation more accurately reflects the sense of the legislation. The adjective which parliament chose to insert was ‘significant’ not ‘material’, nor the phrase ‘to a recognisable degree’. It is an adjective which implies a contribution of greater dimension that that conjured up by the other formulations, each of which has its place in the history of workers' compensation legislation. What amount or effect will be ‘considerable’ in any particular case will, of course, be a matter for determination on the facts; the determination being ordinarily inviolable. It remains only to say that, at a practical as distinct from conceptual level, the distinction between an employment contribution exceeding de minimis and an employment contribution of considerable amount or effect may be more apparent.”
[104] Supra at paragraph [61].
332In St Mary’s School v Askwith,[105] Ashley JA reiterated his view from Popovski that a significant contributing factor was a factual enquiry, and “significant” meant a considerable amount or effect.
[105] [2011] VSCA 90.
Pre-existing back condition
333This is an aggravation case; the plaintiff having undergone lumbar surgery in 1999. The principles in Petkovski v Galetti[106] therefore apply.
[106] [1994] 1 VR 436 (“Petkovski”).
334In this case, where there is a pre-existing back condition, I must consider what the evidence discloses as to the plaintiff’s prior back condition, and determine whether any additional impairment resulting from his work duties with the employer is serious and permanent.
335In Petkovski, the Full Court of the Victorian Supreme Court accepted the proposition that:
“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused. … .”
336While the plaintiff clearly had a pre-existing lumbar condition, there is little evidence of back complaint or the need for ongoing back treatment following the lumbar surgery in the years leading up to 2016 when he started work with the employer.
337In the clinical notes from 2014 to 2016, there was only one reference to back pain, on 20 January 2015: “middle back pain.”
338Accordingly, counsel for the plaintiff submitted “you don’t see [the plaintiff] complaining of anything like the problems he’s got now”.[107] On that basis, it cannot be inferred that the plaintiff’s back was playing up before 2016.[108]
[107] T141.
[108] T142.
339While there is little detail of the plaintiff’s employment after the lumbar surgery, and he was actually unemployed for three-and-a-half years before starting with the employer in 2016, there is no evidence that the plaintiff’s back condition played any role in this situation.
340Further, the plaintiff passed a pre-employment medical with the employer in April 2016.
Credit
341As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[109]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[109]Supra at paragraph [12].
342Further, I am mindful of what was said by Chernov JA in Dordev v Cowan & Ors,[110] that in this type of case a plaintiff’s credibility is relevant not only to whether his evidence should be accepted, but it is also relevant to the reliability of the medical evidence, because the opinions of the doctors are essentially dependent on the credibility and reliability of the history given to them by the plaintiff.
[110][2006] VSCA 254 at paragraph [14].
343Accordingly, in this case, what appear on their face to be medico-legal opinions supportive of the plaintiff’s application must be looked at in the light of my views as to his credit.[111]
[111] T116.
Defendant’s submissions
344The defendant placed a lot of emphasis on credit issues in this application.
345It was submitted “it is a difficult case on causation” because of the plaintiff’s poor credit, which affects the doctors’ appreciation of that issue and the Court’s assessment of whether the plaintiff continues to suffer from the 2018 work injury, also considering his pre-existing lumbar condition.[112]
[112] Petkovski (supra); T112.
346The plaintiff’s credit was also relevant in determining what consequences flow from the compensable injury and the extent thereof, and also the role played by non-compensable conditions in his current presentation.[113]
[113] Peak Engineering Pty Ltd v McKenzie [2014] VSCA 67.
347It was submitted credit interferes with every aspect of this most difficult case, where the plaintiff has the onus and he fails – a man who, of course, comes to the Court with a “significantly blemished history of a willingness to deceive”, the plaintiff, having conceded he had fraudulently claimed travel expenses from the TAC, at a time when he was in his mid-thirties and not as a young man.[114]
[114] T113.
348There was also the plaintiff’s and his wife’s affidavit evidence of the plaintiff’s great disablement when the plaintiff owned and continued to ride motorbikes, despite having told Mr Simm he had given up riding motorbikes. The plaintiff also continued to go fishing when he had told Mr Kossmann he had ceased this activity.[115]
[115] T114.
349Similarly, the plaintiff presented to doctors with extreme restriction of lumbar movement when still able to engage in a range of activities.[116]
[116] T114.
350The evidence about the plaintiff’s back problems on the Mount Gambier holiday was “a complete exaggeration”.[117] While the plaintiff posted the “occy tossing” film on Facebook, that actually showed a holiday of enjoyment, not misery, as his wife’s affidavit suggested.[118]
[117] T115.
[118] T116.
351It was conceded, given the plaintiff’s activities at Mount Gambier of which Mr Drnda was unaware, the TV incident was likely to be insignificant and likely to be part of the fluctuating picture of pain that comes and goes following the back surgery and not to be unexpected with a flare-up in April 2016, when the plaintiff started work.[119]
[119] T117.
352The other aspect of credit was the plaintiff’s initial evidence of a solid work history after the back surgery when, in fact, he was unemployed for three-and-a-half years before starting work with the employer, ultimately admitting he did not work during that time because of problems with marijuana. It was also submitted that the plaintiff was not working because his back was not as good as he said it was when he commenced work with the employer in 2016.[120]
[120] T120.
Plaintiff
353The plaintiff, having been under surveillance for 55 hours and only a small amount of film shown, goes to show that the highlight was in fact the film that plaintiff and his wife had posted on Facebook, “so the surveillance film had to be seen in that context”.[121]
[121] T139.
354It was conceded that probably the only way credit had any sort of relevance was the plaintiff’s pre-2016 condition and the perhaps his condition shortly prior to Christmas 2019.
355In terms of the earlier period, both the plaintiff and his wife had given evidence he was not having any back problems, supported by his résumé, which showed consistent work in occupations that were strenuous and heavy. Further, the plaintiff was also able to successfully pass a medical at the abattoir before commencing work in 2016.
Credit findings
356Generally, I found the plaintiff to be an unreliable witness, in particular as to his work history before starting with the employer and, more importantly, the progress of his back condition after May 2018, especially the date of onset of any left leg symptoms.
357His affidavit in relation to these matters was very brief and, in some respects, inaccurate. In cross-examination, he agreed, as his GP and physiotherapist recorded, at times, he had no lumbar symptoms, and he was cleared to return to full-time unrestricted duties. It was only in re-examination that he mentioned that his back pain never went away.[122]
[122] T64.
358The plaintiff deposed that as a result of his duties, he suffered back pain, detailing treatment during 2018, simply stating he was provided with lighter duties which he continued until Christmas 2018.
359This is not accurate. As of November 2018, he was cleared for full-time duties, per Dr Ghazi’s note of 7 November 2018: “the back is 95% better and he could do full duties”.
360The plaintiff also deposed that in January 2019, he was given a clearance certificate and started droving. For a few months his back was manageable, but then flared up and he was back to the doctor in June 2019.[123] He had physiotherapy until September 2019 and that month, Voltaren and Panadeine Forte prescribed.
[123]25 June 2019: “Since Thursday having back pain - here to get a certificate.”
361However, he then agreed that medication was stopped in September 2019 when he was discharged by the physiotherapist. He worked until the end of 2019 without major issue. He signed a full-time general drover and labouring contract in December 2019. At that time, he was back to doing usual activities – motorbike riding et cetera.[124]
[124] Transcript of Magistrates Court proceedings.
362In the lead up to Christmas 2019, as he conceded, while he was not “100 per cent good”, he was still feeling “pretty good”.
363He deposed that “come Christmas, [his] back was starting to play up again” and he suffered a flare up of symptoms after Boxing Day in the TV incident. He still went on holidays to South Australia (not mentioning any back issues), although his wife described the holiday as an absolute nightmare. He then said the holiday was really miserable because of really bad back pain as well as pain running down his left leg.[125]
[125] T19-20.
364He deposed they returned home on 13 January 2020. The following day, his back was painful, and he thought “here we go again”. He saw Dr Maleque as he was experiencing not only pain in his back but pain in his left leg.[126]
[126]15 January 2020, Dr Maleque – “got left leg pain for a few days and its not going away, had back problem before.”
365The plaintiff deposed that he was off work for about six months and then returned to light duties. He had physiotherapy in that time. He was on light duties until 15 September 2020, when he relocated to Geelong.
366He agreed, however, that his back got a whole lot better by the end of 2020. He was back to full-time duties droving and as his physiotherapist reported in August 2020 that he had “currently nil symptoms”.
367The next attendance on a GP for back pain seems to be January 2022 when the plaintiff saw Dr Gounder.
368In those circumstances, I prefer the contemporaneous medical evidence of the progress of the plaintiff’s back condition after the May 2018 injury to the plaintiff’s account.
369It was not a situation of persistent, progressive back pain from May 2018, as the plaintiff told a number of medico-legal examiners.
370The plaintiff’s evidence about the TV incident and his condition on the South Australia holiday/camping at Mt Gambier was also unreliable – at times, emphasising the severity of these events and at other times, playing down their seriousness.
371While the plaintiff’s affidavits painted a picture of disablement, there was nothing shown in the surveillance film or in the Facebook posts of any significant lumbar restriction.
Defendant’s submissions – causation / significant contributing factor
372The medical evidence does not deal with the significance of left or right-sided pain. There is no medical support for there being effectively a new type of back injury that can be attributed to the abattoir work involving just the left-sided symptoms, rather than the right, following the back surgery.[127]
[127] T118.
373The first reference to left leg pain was in fact on 15 January 2020. This was important information of a change of symptomatology, a change in the pattern of the plaintiff’s pain.[128]
[128] T120.
374Mr Lugg, in his first report, does not assist the plaintiff, although acknowledging there was a work injury. He thought that injury would stop the plaintiff working for some time, but it had largely resolved by December 2018 and then there was a recurrence of pain apparently unrelated to work in late 2019/early 2020. He made a number of references to the word “resolved” in his first report.
375It was acknowledged Mr Lugg made a slight adjustment in his next report, noting there was a small, but significant, contribution to the plaintiff’s lumbar condition due to the May 2018 injury. It was very difficult to reconcile that with his first opinion, but he did not identify why he made that change. However, even if you excuse that failure, he thought it was a small or significant contribution, which, it was submitted, was not of any considerable amount.[129] He really focused on the plaintiff’s constitutional tendency.[130]
[129] T127.
[130] T128.
376The views of Mr Kossmann and Mr Simm were based on unsatisfactory histories, not having been provided with an accurate history of fluctuating pain over the years. If they had had that history, their opinions would fall away.[131]
[131] T129.
377Mr Drnda’s opinion should be preferred, as he has put in a considerable amount of work in understanding that objective evidence is necessary in this application due to the plaintiff’s unwillingness to properly divulge matters. Doing his best, he thought, when the plaintiff commenced with the employer, he had a strong genetic predisposition to develop a significant early spinal condition.[132] He believed that while the work with the employer aggravated significant pre-existing lumbar spondylosis and triggered pain, that condition resolved before Christmas 2019.[133]
[132] Ibid.
[133] T130.
378The plaintiff left work in 2020 by virtue of his resignation. While he did have a back problem for a period in the middle of 2020, he was back to full-time duties in June that year and in August 2020, his GP reported “currently nil symptoms”.[134]
[134] T131.
379The TV incident was not significant in the wash-up because of the “occy tossing.” While the plaintiff reported the TV incident as a significant aggravation, something did happen, but it got better. He was managing on the South Australian holiday and then there were problems when he got back in January. That was just entirely consistent with the pattern of pain the plaintiff had over the previous three years.[135]
[135] T134.
380The only doctor who has attempted to reconcile the pattern of the plaintiff’s presentation is Mr Drnda, who comes to the undeniable opinion that the lumbar condition had resolved before Christmas 2019, something happened after that, and whatever it is, it is part of the natural history. While the clinical notes show a worsening in January 2020, they also support an improvement from April that year and that really echoes what happened in May 2018.[136]
[136] Ibid.
Plaintiff – causation/ significant contributing factor
381While the plaintiff accepted that in September 2019 he had stopped physiotherapy and medication, in re-examination, he said he still had the occasional twinge and occasional pain down his leg, but he was able to manage. It was not a complete resolution in the sense of absolutely no symptoms. That was important.[137]
[137] T142.
382Mr Lugg’s opinion “was not particularly unhelpful”. The defendant relied on only one passage in his report. The plaintiff relied on Mr Lugg’s view that contribution was small, but, in his opinion, significant. Specifically, there was an injury in which the plaintiff developed a disc prolapse and sciatica on the left side. Since then, there was all consistently the same pain with radiation down the leg and that was because of the prolapse, which Mr Lugg had identified as being caused in the subject injury.[138]
[138] T144.
383The plaintiff might have been obese and had problems with smoking, but then there was the prolapse, which is the root of his current problems. That is what has been injected twice in 2022 and that continued to trouble him with back pain and sciatic pain.[139]
[139] T145.
384Once you have established the plaintiff has a disc prolapse that is recurring and flaring up, and the various provocations, then that is consistently what is happening thereafter. He might be able to go back to work at various stages, but at times the disc is bulging, hitting a nerve, and it gets larger and inflamed, and needs treatment, like an epidural injection and physiotherapy, all relating to the prolapse that arose in May 2018.[140]
[140] T146.
385Mr Kossmann thought there was an acute injury on the old injuries. When seen in 2020, he thought the plaintiff’s condition was still causally related to employment.[141]
[141] T147.
386Dr Locke, in February 2020, thought the back pain originated in the hook room and had been progressive and persistent ever since, as the plaintiff confirmed in re-examination. He thought the plaintiff’s work initiated the injury when he was working in the hook room.
387The balance of the evidence is that there is a casual relationship.[142]
[142] T149.
388Mr Simm concluded employment was definitely an exacerbating factor and work duties had caused significant symptoms from the underlying degenerative lumbar spine pathology, but considering the periods of improvement, the plaintiff’s symptoms related more to the underlying constitutional degenerative pathology, rather than any lasting effects from factors relating to his work with the employer.[143]
[143] T150.
389The contribution from work does not have to be the major factor, and it was accepted there was clearly a constitutional issue.[144]
[144]Ibid.
390Mr Simm went on to say it could be argued that the original injury was the starting point for the ongoing relapsing back pain. While he said it would be small and difficult to quantitate the contribution, that was a matter of judgment. However, it was a nevertheless significant contribution and when Mr Simm said the words “it could be argued,” he was really saying it could be a reasonable supposition.[145]
[145] T151
391Associate Professor Miron Goldwasser, who conducted an AMA assessment, thought the plaintiff now had an established pattern of chronic back and leg pain and this pattern of symptoms would persist into the foreseeable future. The “balance of all that is quite sufficient to find a causal relationship”.[146]
[146] Ibid.
392The contribution need only to be significant, not major, as is clear from Popovski.[147] For “significant” to mean “significant” there has to be more than de minimus.[148]
[147] T152. See paragraphs [56]-[61] of Popovski.
[148] T153.
393It was conceded that Mr Drnda had a helpful summary “which perhaps predisposed everyone towards his reports more than it should”.[149] Attacking the report, Counsel for the plaintiff submitted that the history and opinion came from a letter of instruction, and that Mr Drnda did not examine the plaintiff to ask him about how his back was feeling at various times. That situation certainly weakened the force of Mr Drnda’s opinion, because the plaintiff was not given the opportunity of explaining the recurrences, and how the pain compared to the pain experienced in 2018.[150]
[149] Ibid.
[150] T154.
394Mr Drnda had committed himself to a particular point of view, namely that there was no ongoing problem, and he slightly resiled from that in his second report, and was obviously quite impressed with the plaintiff, noting, at some stage, he had developed central sensitisation. It was conceded, however, Mr Drnda was against the plaintiff’s position, diagnosing constitutional advanced lumbar spondylosis, which was temporarily aggravated.[151]
[151] T155.
395The treaters, of course, were not particularly helpful on the question of causation.[152] It was conceded there was no contemporaneous commentary by the GPs in 2019 and 2020.[153]
[152] T156.
[153] T157.
396On the balance of probabilities, the evidence “gets you there on causation because, while it is not a numbers exercise, everyone is to a greater or lesser degree supportive of a connection except for Mr Drnda”.[154]
[154] T161.
Findings
397Taking into account all the evidence, I am not satisfied the 2018 back injury is a significant contributing factor to the plaintiff’s current lumbar condition.
398The consensus of medical opinion is that the plaintiff suffers from advanced degenerative lumbar spondylosis.
399In my view, any contribution to that condition by work in 2018 as at the date of hearing is not of considerable amount or effect.
400I accept that injury had resolved by December 2019, as Mr Drnda opined, after a very careful consideration of all relevant clinical notes.
401I accept Mr Drnda’s view that when the plaintiff commenced with the employer, he had a strong genetic predisposition to develop a significant early spinal condition.[155] While work with the employer aggravated significant pre-existing lumbar spondylosis and triggered pain, that condition resolved before Christmas 2019.[156]
[155] T129.
[156] T130.
402In my view, it matters little that Mr Drnda reached this view not having examined the plaintiff. Even if he had been told by the plaintiff that his back pain persisted and progressed since May 2018, this was not the true situation, and that had been wrongly accepted as being accurate by a number of medico-legal examiners upon whom the plaintiff relied.
403The plaintiff left work in 2020 by virtue of his resignation, having been back to full duties in September 2019. While he did have a problem for a period in the first part of 2020, he was back to full-time duties in June 2020 and in August 2020, his GP reported “currently nil symptoms”.[157]
[157] T131.
404Further, I am not satisfied that the onset of left leg symptoms followed the hook work, with no recorded complaint of left leg pain until January 2020, nearly two years later, as the GP recorded. His affidavit evidence is to this effect. Further, while the plaintiff is not a doctor, he did not know the cause of his back and left leg problems at that time and did not associate it with the work he had done the previous year.
405Mr Lugg’s focus on a prolapse is based on an inaccurate history of onset of left leg symptoms in May 2018, having accepted there was a sudden increase in left leg pain at that time, consistent with the likely nerve root involved.
406Only in his second report, without any explanation, having confirmed the plaintiff undoubtedly has a constitutional tendency to develop degenerative spinal disease or spondylosis, Mr Lugg concluded there is a small but significant contribution to the plaintiff’s spinal problems due to the May 2018 injury, finding specifically this was an injury in which the plaintiff developed a disc prolapse and sciatica on the left side.
407In any event, Mr Drnda took a different view of the relevance of any prolapse to the work injury, concluding that the March 2022 MRI finding of acute prolapse at L2-3 would be in keeping with a natural history of significant lumbar spondylosis with unresolved morbid obesity – not to do with work before 2020.
408Mr Simm was not particularly helpful to the plaintiff. He thought there may have been a contribution of the acceleration of the degenerative pathology as a result of the May 2018 injury but that would be minimal and difficult to quantitate. The injury was not followed by chronic pain as it was recorded the plaintiff recovered symptomatically.
409The medical opinion relied by the plaintiff as to causation is based on inaccurate histories.[158]
[158] See Dordev v Cowan & Ors [2006] VSCA 254.
410There were a number of inaccuracies in Dr Locke’s February 2020 report. He had been told by the plaintiff that he had not missed any time from work since he left school. He was also told of the onset of predominantly left-sided back pain before Christmas and, significantly, that the plaintiff had experienced progressive and persistent back pain ever since the hook room work.
411Mr Kossman also has a history of ongoing back pain since May 2018. Further, while of the view the plaintiff’s lumbar condition in October 2020 was still causally related to the employment, he did not answer the defendant’s solicitor’s question - “why?”.
412Associate Professor Goldwasser did not really advance the plaintiff’s case, simply stating the injury probably aggravated his previous back condition and this time there was left lower limb involvement.
413There was not a situation of ongoing lumbar pain since May 2018. Further, the next attendance for a back complaint after the plaintiff was cleared in August 2020 for full duties, with nil symptoms, seems to be in January 2022, when the plaintiff saw Dr Gounder.
414I am not satisfied, taking into account all the evidence, the plaintiff’s work injury is a significant contributing factor to his spinal condition as at the date of hearing. It is not of a considerable amount or effect.
415Any ongoing symptoms relate more to the underlying constitutional degenerative pathology than to any lasting effects from factors relating to the plaintiff’s work duties with the employer as Mr Simm opined.
416In those circumstances, the application fails.
417Having made that finding, I am not required to consider the consequences or seriousness of any lumbar impairment, noting that both counsels’ submissions in relation to this issue were brief, focussing on causation.
418Accordingly, the application is dismissed.
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