Neal v Stryker Australia Pty Ltd
[2021] VCC 1382
•23 September 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-20-02651
| PETER JOSEPH NEAL | Plaintiff |
| v | |
| STRYKER AUSTRALIA PTY LTD (ACN 002 873 850) | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6, 7, 8, 9 and 10 September 2021 | |
DATE OF JUDGMENT: | 23 September 2021 | |
CASE MAY BE CITED AS: | Neal v Stryker Australia Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1382 | |
REASONS FOR JUDGMENT
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Subject:DAMAGES
Catchwords: Claim for damages for injury in course of employment – claim in negligence or breach of statutory duty
Legislation Cited: Occupational Health and Safety Manual Handling Regulations 2007
Cases Cited:Barro Group Pty Ltd v Fraser [1985] VR at 577
Judgment: Plaintiff’s case fails. Judgment for the defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms F A L Ryan with Ms K Karadimas | Footner Wren Legal |
| For the Defendant | Mr W R Middleton QC with Mr P Bourke | Hall and Wilcox |
HER HONOUR:
1Mr Neal is a fifty-eight-year-old man who worked as sales representative for the defendant, Stryker Australia Pty Ltd (“Stryker”), a medical technology company. Mr Neal claims he injured his lower back outside the Royal Melbourne hospital on 21 October 2011, whilst moving heavy kits of surgical equipment into the back of his sedan car (“October 2011 incident”). He claims that his employer informed him that the surgical equipment was needed for an emergency trauma case at another hospital, and as there was no courier available, he was required to bring the surgical kits back to its head office in Preston, so they could be transferred to the other hospital. Mr Neal claims that Stryker was negligent and in breach of its statutory duty under the Occupational Health and Safety Manual Handling Regulations 2007, for requiring him to move these kits in this way. He claims that such negligence and/or breach of duty is a cause of ongoing back pain, the need for surgery and his total incapacity for work.
2Stryker defended this case, submitting that Mr Neal should not be believed, neither in respect of how this incident occurred nor in respect of its consequences to him. Although it accepted that a few days after the October 2011 incident, Mr Neal made a verbal report of his back injury lifting trays in to the back of his car, it submitted that I could not be persuaded as to the circumstances of the incident, as there was no written account of it until almost five years later. Further, Stryker submitted that when a report was finally made, it was inconsistent with the account Mr Neal gave in his evidence. Even if I were to accept Mr Neal’s claimed version of the incident, Stryker denied that it was negligent or in breach of its duty, and further denied that any such breach was a cause of an ongoing injury. Stryker submitted that I should find that any injury suffered in this incident was resolved within approximately one month. It was submitted that Mr Neal’s need for back surgery and his ongoing incapacity for work, could not be attributed to this incident.
3The case proceeded via Zoom over five days, during which five witnesses were called to give evidence – Mr Neal; his wife; his general practitioner, Dr Luka; the person at Stryker he reported the injury to, Mr John O’Hare, and consultant engineer, Mr Bill Contoyannis.
4In addition, numerous medical records and other contemporaneous documents were tendered by Mr Neal and Stryker. The parties also agreed to tender the reports of a number of the doctors consulted in this matter, so as to eliminate the need to call and cross-examine such doctors. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all of that material in the course of this judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions reached in my judgment.
5For the reasons which follow, I am not satisfied that Mr Neal was injured in the way in which he alleges on 21 October 2011. I am uncertain as to the manner in which Mr Neal came to hurt his lower back that day and therefore I cannot even come to consider whether the defendant breached its duty of care to him.
6To understand why Mr Neal failed to satisfy me as to the factuality of his account of what occurred on 21 October 2011, it is necessary for me to detail and assess Mr Neal’s evidence, and explain why I did not consider him to be a credible witness. Further, for the sake of completeness, I will also briefly detail the evidence of the other witnesses, so far as it is relevant to how I have ultimately determined this claim.
Mr Neal’s evidence
Background prior to commencing employment with Stryker
7Mr Neal was born in October 1962 and grew up in Warracknabeal. He attended school until he was sixteen years old, and left after completing Year 11 to work in his father’s pub as an assistant hotel manager, where he worked for about four years. While he was working at the hotel, Mr Neal met his now wife, Marina Neal, who was training to become a nurse at the time. Mr Neal subsequently also studied nursing, and thereafter worked as a state enrolled nurse for about one year and later, as a theatre technician.
1980s
8Mr Neal subsequently undertook a three-year paramedicine course and commenced working as a paramedic in 1985.
9In 1987, whilst working as a paramedic, Mr Neal sustained a soft-tissue injury to his lower back. He said that he lodged a claim, took approximately four weeks off work, and he thereafter returned to work as a paramedic.
1990s
10Mr Neal and his wife had two sons, Josh and Kyle.
11In March 1990, Mr Neal was injured in a motorcycle accident, and ruptured the ligaments in his left knee, which required reconstructive knee surgery. Mr Neal initially said that he did not injure his back in this accident, but in cross-examination, he accepted that he suffered some back pain at the time. Mr Neal said he returned to paramedicine after this accident.
12On 29 August 1992, Mr Neal suffered an injury to his lower back while working as a paramedic when he was lifting a stretcher out of an ambulance. As a result of this incident, Mr Neal suffered a prolapse of his L5-L6 disc, was hospitalised for a week and received traction therapy. At this time, Mr Neal was under the care of orthopaedic surgeon, Mr John Henderson.
13Mr Neal lodged a WorkCover claim in respect of this back injury, and subsequently settled a common-law claim in relation to it. Mr Neal accepted that he had approximately 262 weeks off work at this time. He said that he subsequently ceased working as a paramedic, as he realised at that time, that he “couldn’t keep carrying people up and down stairs”.
14In February 1993, Mr Neal came under the care of orthopaedic surgeon, Mr Simon Williams. Mr Neal said that he saw him a few times, and that he had contemplated the possibility of Nr Neal undergoing a spinal fusion. In a report dated 20 April 1994, Mr Williams noted that Mr Neal had also consulted orthopaedic surgeons, Mr Ian Torode and Mr Gary Speck, neither of whom recommended surgery.
15Soon thereafter, Mr Neal commenced a Bachelor of Arts degree at Deakin University, with an extended major in psychology. After completing that degree, Mr Neal then commenced full-time work in pharmaceutical sales at Roche Pharmaceuticals.
16Mr Neal described himself as physically fit at this time. He said that he and his wife owned road bikes, regularly cycled before work, and cycled approximately 300 kilometres per week. Mr Neal also said that at this time, he went to the gym every day in the afternoon. Mr Neal said that he and his wife, Marina, also bought a speedboat and started water skiing on slalom courses and were members of the Geelong Water Ski Club.
2000s
17In 2000, Mr Neal commenced working at Sanofi as a field sales manager. He said that he was not cycling as often at this time, but always ensured that there was a gym available wherever he travelled for work.
18In 2003, Mr Neal commenced working at Bristol Myers Squib/ConvaTec as a regional sales manager, which he said included significant travel, including interstate. Mr Neal said that he was initially happy in this role. After some time however, Mr Neal said he was approached by ConvaTec’s international managers, who told him that they wanted him to take over his boss’s role and that he was not allowed to tell him. Mr Neal said that he found this situation very stressful, and also that the time away from home affected his marriage.
19In 2004, Mr Neal separated from his wife and moved to live with his sons in Melbourne.
20In September 2004, Mr Neal lodged a worker’s compensation claim in respect of his employment with Bristol Myers Squib, and claimed that over the course of his employment, he had suffered a stress-related heart condition, exacerbation of a previous back injury, and depression.
21At around this time, Mr Neal said he attempted suicide on two occasions. To treat his depression at this time, Mr Neal said he was on “incredibly strong medications”, including lithium, and he also received ECT as an inpatient. Mr Neal said that this treatment had an impact on his memory as to events at that time, but that it did not affect his subsequent memory.
22In November 2004, Mr Neal was examined by consultant in occupational medicine, Dr Ralph Poppenbeek, in respect of this claim. When asked about this in cross-examination, Mr Neal stated that there was “no worker’s compensation at this time” and that he could not recall being examined by Dr Poppenbeek.
23In a report dated 15 November 2004, Dr Poppenbeek stated that he examined Mr Neal and was given a history of prior back problems affecting five lumbar discs, with a claim by Mr Neal that his back pain worsened during 2004, which Mr Neal attributed to lifting and travel. Dr Poppenbeek noted that by August 2004, Mr Neal was taking 20 Panadeine Forte tablets a day. When this was put to Mr Neal in cross-examination, he accepted that he was taking that amount of Panadeine Forte at the time, but stated it was for his psychological issues.
24Dr Poppenbeek also noted that Mr Neal’s driving was undertaken cautiously because of back pain. When this was put to Mr Neal in cross-examination, he stated that he could not recall the examination, and that this was not true.
25In this report, Dr Poppenbeek noted that a CT scan of lumbar spine dated 5 October 2004 was reported as demonstrating mild annular bulging at L4-5 and no other abnormality of significance was reported.
26On 17 November 2004, Mr Neal’s general practitioner, Dr John Stekelenburg, wrote a report to CGU, worker’s compensation. In this report, Dr Stekelenburg detailed Mr Neal’s health problems, including his depression, chest pain, and his “long history of chronic back pain”. Dr Stekelenburg noted the following:
“… he had been hospitalised several times in the past for control of sciatica. He has been managed reasonably well since then with regular massage, strict weight control and intermittent physiotherapy. He has taken panadeine forte up to 10 tablets per day regularly for many many years. Recently he has also been requesting Endone and has taken about 1 packet of 20 per month. Subjectively Peter feels that over the past few months his back has deteriorated. A recent CT scan of his spine … on the 5th October showed a mild generalised bulge at L4-5 but little else. Peter had been told some 10 years ago that his disc was degenerated at many levels and that there was a possibility of him ending up in a wheelchair. In October this year I explained to him that this would seem to be extremely unlikely.”
27Further, Dr Stekelenburg noted that just prior to providing this report, Mr Neal had attended upon another general practitioner who had prescribed him slow-release morphine for treatment of his low back pain.
28When this report was put to Mr Neal in cross-examination, he said that he could not recall the period of time due to the massive impact on his memory caused by ECT and strong medications.
29Also in November 2004, Mr Neal attended upon gastroenterologist, Dr Ross Knight, who recommended that he undergo a gastroscopy and colonoscopy to investigate his complaints of rectal bleeding and heartburn. In a report dated 14 December 2004, Dr Knight concluded that Mr Neal was highly stressed and that his agitated depression had resulted in a multitude of physical symptoms, including irritable bowel syndrome. In this report, Dr Knight also noted that Mr Neal’s past problem of chronic back pain had been reactivated.
30Mr Neal said that his depression eventually resolved after a few years.
31In 2006, Mr Neal’s sons started their own concreting business in Melbourne, and he spent time helping them learn how to manage their business in respect of skills, such as invoicing and building trust with customers. Mr Neal also said that sometimes, when his sons did not have enough staff, he helped with their concreting work, which was physically arduous.
32In about November 2008, Mr Neal started working for Zoll, selling heart defibrillators to hospitals.
33In cross-examination, Mr Neal said that since the 1990s he could not recall having any complaints in respect of his back. However, he later conceded that throughout the period 2000-2010, he was prescribed Panadeine Forte for his back injury. However, Mr Neal repeatedly said that although this medication was prescribed for that reason, he took it as a “mood elevator” and to help his depression. He expressly denied that it was for his back, which he said was “fine”.
Stryker employment
34In December 2009, Mr Neal commenced his employment with Stryker as a sales manager. He said that Stryker wanted him to build its business by increasing sales of trauma equipment at a group of large hospitals including the Royal Melbourne Hospital, St Vincent’s Hospital, Northern Hospital, Cabrini and the Epworth. Mr Neal said that his job involved selling products, particularly surgical equipment, to hospitals. He said the equipment was for emergency and trauma surgeries, particularly aluminium surgical kits, including nails, plates, and tools similar to carpentry tools, such as hammers, screwdrivers and implants.
35Mr Neal said that his job involved assisting the hospital in the use of equipment during surgery, with the aim of encouraging surgeons to prefer Stryker equipment above other equipment.
36Mr Neal said that his role involved determining what equipment would be required; ringing up Stryker to tell them what equipment he needed and when he needed it by; checking that all the equipment had arrived in the hospital’s delivery room; organising for it to be sterilised using the hospital cleaning services; assisting with the setting up equipment for use during theatre; assisting surgeons during the surgery to make sure they are aware of the proper use of the equipment, and organising to have the equipment removed after surgery. Mr Neal said that whilst in surgery, he was required to wear a lead suit to protect him from any radiology performed during the surgery.
37Mr Neal said that ordinarily, the equipment would be provided to the hospitals via courier vans fitted with hydraulic lifting equipment, organised by the ordering staff at Stryker’s warehouse in Preston. In circumstances where the couriers transported the equipment, it would be transported in tubs, composed of three trays of toolkits, constituting one toolbox, which each weigh approximately 21 kilograms.
38Mr Neal said that his role sometimes involved doing education involving training sessions and bone workshops with nurses and surgeons. For these education sessions, Mr Neal said he would take the components of the toolkits that he would need to demonstrate and to allow the surgical staff to practise using the equipment, for example doing nail insertions into synthetic bone.
39Occasionally, when it was short notice or the couriers were unavailable, Mr Neal said he would use his own car to transport equipment to hospitals. Mr Neal said this generally did not involve taking a whole kit, but rather a component of it for an education session. He said that it would be done by a courier if it was for a large education session.
40Mr Neal said that while he was working at Stryker prior to the incident on 21 October 2011, he was working 60 hours a week, and up to 90 hours a week when he was on call. When on call, Mr Neal said that each member in his team of six would take turns for one week, covering all of the hospitals at all hours, in the event a trauma case came in.
41Prior to the October 2011 incident, Mr Neal said that he attended Doherty and Bell Street 24-hour gyms whenever he had the opportunity and that he had no problems with his back at the time. Mr Neal said he did not have a regular general practitioner at that time.
42In early October 2011, Mr Neal was invited to interview for a sales role with Zimmer Pty Ltd (“Zimmer”), a competitor of Stryker, with an employment opportunity to develop their trauma surgery equipment sales team.
21 October 2011 incident
43Mr Neal said that on 21 October 2011, he spent the day working at the Royal Melbourne Hospital. He said that he had been in the theatre for approximately six hours, as there had been three lots of “gamma nail insertions” to complete.
44Mr Neal said that after the surgeries were complete, and he was about to change out of his theatre scrubs to leave the hospital, he received a phone call from Stryker’s control room. Mr Neal said he could not recall who he spoke to, but he said that he was told they were unable to get a courier on Friday night in peak-hour traffic, and he was to take the kits back to the warehouse so that the kits could be temporarily used for a trauma surgery at the Austin Hospital.
45Mr Neal was challenged in respect of his claim that he was requested to do this by Stryker. It was put to him that there was no such call, and that couriers would always be available to transfer such equipment. Mr Neal accepted that he had never previously been asked to transfer this amount of toolkits in his car. However, he maintained this is what he was asked to do on this occasion, and he agreed to do what he was told.
46Mr Neal said there were six kits to be moved out of the hospital on this evening. Mr Neal said that there were three trays in each, and with each tray weighing 7 kilograms, he believed the kits weighed approximately 21 kilograms.
47Mr Neal said after receiving this call, he moved his car to a short-stay parking spot outside the hospital. He then moved the kits within the surgical area on a trolley. Mr Neal said when he reached the non-surgical area of the hospital, he loaded the kits onto a hospital wheelchair and pushed the wheelchair with some of the kits on it, out the front to his car. Mr Neal said he then stood in the gutter, with the wheelchair locked alongside the gutter next to him. Mr Neal said that he had to lift the kits up, move across, and lean into the boot of his Mitsubishi sedan car.
48Mr Neal said early on in the process of moving the kits, whilst he was leaning into the boot, with his arms at full extension, he heard what he described as a “fairly loud pop” in his back. Mr Neal said that this was followed by numbness through his pelvis, lower back and down into his legs.
49Mr Neal said he completed stacking the remaining kits into his car, including doing a further load from the surgical area with a wheelchair. Mr Neal said that he then drove to Stryker’s warehouse in Preston and that during the drive, he started to experience pain, and felt “every bump in the road”.
50Mr Neal said that when he arrived at the warehouse, he was unable to get out of the car and said that some staff at the warehouse took the kits inside. He said that he was in extreme pain and drove home.
51Mr Neal said that at the time of this incident, he was conscious that he was about to commence a new role with Zimmer, which he considered was an “incredible opportunity” for him and he therefore hoped that his back pain would get better. However, Mr Neal said that as his back pain did not improve over the weekend, he felt that he had no option but to go and see a doctor.
52On 24 October 2011, Mr Neal attended on general practitioner, Dr Ashrak Aboud, at the Broadmeadows Medical Centre. Dr Aboud’s notes of that day, recorded a history of “severe lower back pain over 2 days”, with a note that Mr Neal had a previous history of three disc prolapses a few years ago. It was noted that Mr Neal had a back massage on a sagging bed, and that he “then has severe back pain”.
53Dr Aboud examined Mr Neal and noted lower back tenderness and a positive straight leg raise test on his left side. Dr Aboud prescribed Celebrex and Panadeine Forte and referred Mr Neal for a CT scan.
54When cross-examined in respect of this clinical record, Mr Neal said:
“I don’t know why he’s written what he’s written, but I know that I didn’t say that, because already it says ‘two days ago’ and it happened ‘three days ago’.”
55Mr Neal then stated that over the weekend, he had a person named Susan, who was living in his home at the time, give him a massage in the hope it would relieve his back pain. Mr Neal said that it did not help.
56Mr Neal denied that he told Dr Aboud that he previously had three disc prolapses a few years ago.
57Mr Neal said that at this time, was concerned for his upcoming employment with Zimmer and did not even want to be at the doctor’s. Mr Neal said that he made a deliberate decision not to tell Dr Aboud about the incident at work.
58On 24 October 2011, a CT scan was performed on Mr Neal’s thoracolumbar spine. It was reported as demonstrating a small disc protrusion with mild to moderate canal stenosis at L3-4, L4-5.
59On 25 October 2011, Mr Neal stated that he telephoned Mr O’Hare, told him what had happened in the incident, and said he needed to take time off work as he had hurt his back. Mr Neal said that Mr O’Hare told him during this conversation that he would complete an incident form for him, “as you never know what’s going to happen down the track”. However, Mr Neal said he told Mr O’Hare he did not think that was necessary. Mr Neal maintained that as he was going to a new job, he did not want an incident form to be lodged.
60It was put to Mr Neal in cross-examination that Mr O’Hare had emailed him an incident notification form on that same day for Mr Neal to complete “just in case”. Notwithstanding the production of this email, Mr Neal remained adamant that Mr O’Hare said he would fill out the incident form for him, and queried whether in fact there had been an attachment to this email, which he said he could not recall receiving.
61Mr Neal said he then took four weeks off work and during that time he described the pain as terrible. He attended Dr Aboud on 29 October 2011 and received a script for Endone and Nexium. Mr Neal said he subsequently swam and received physiotherapy treatment. During that time, Mr Neal said that he was on pain medication but could not recall the details of the medication or dosage.
The transition from Stryker to Zimmer
62During the period that Mr Neal was on sick leave from Stryker, he was offered the position at Zimmer as a sales associate in trauma equipment.
63On 12 December 2011, Mr Neal completed a medical questionnaire in anticipation of him commencing his employment with Zimmer. As part of this form, Mr Neal declared that he had not been seriously injured, had not received inpatient treatment for a physical or mental condition, had not received worker’s compensation, and had not been previously made ill by his work. When asked to explain these answers in cross-examination, Mr Neal said that he was under the impression that he was only being asked about what had occurred in the last seven years.
64Upon further questioning in relation to the incorrect answers provided on this form, Mr Neal stated that he had not been dishonest with the company, and believed that he “may very well have discussed this with them at the time, and they were happy for me to put it that way”.
65Also on this form, Mr Neal declared that he was experiencing back trouble, but he denied that he was taking medicine regularly. When asked about this in cross-examination, Mr Neal said that he understood the importance of the accuracy of the form and that it “doesn’t look good”.
66Mr Neal said that when he informed Stryker that he was resigning to commence employment with its competitor, Zimmer, negotiations commenced between Stryker and Zimmer in respect of a restraint period, in which Mr Neal would not be able to contact surgeons at the hospitals that he had worked with whilst at Stryker.
67The result of such negotiations was that an agreement was reached whereby Mr Neal’s employment with Stryker ceased on 21 December 2011, and he commenced the following day as a Zimmer employee. However, there was a ten-week restraint period upon which Mr Neal was, in effect, to take “gardening leave” as, during that time, he could not approach any of the surgeons or attend the hospitals that he had previously worked at. The restraint period was then to cease on 1 March 2012.
68Mr Neal said that during this period of gardening leave, he did no actual work for Zimmer, save for reading up on its products so that he would be familiar with them.
2012
69On 14 January 2012, Mr Neal attended upon the Coburg Family Medical Centre, and on that occasion, saw general practitioner, Dr David Lee. At that time, Mr Neal attended for reasons unrelated to this claim. In the clinical note of this attendance, it recorded that Mr Neal was going to Thailand in a few days. There was no complaint made at this time in respect of any lower back pain. When this record was put to Mr Neal in cross-examination, he said that he could not recall going to Thailand. Mr Neal accepted there was no reference to any back pain at this appointment.
70Mr Neal re-attended the Coburg Family Medical Centre on 27 January 2012, 17 February 2012 and 11 April 2012 for conditions unrelated to this claim. Mr Neal accepted he made no report of any back pain at such appointments.
71After the ten weeks’ competitive clause restriction period was over, Mr Neal was able to actively take up his role with Zimmer. Mr Neal did not give evidence as to what work he did for Zimmer between 1 March 2012, when the restriction period ended, and the day when he said he first returned to do theatre work.
72Mr Neal said on approximately 10 or 15 April 2012, he worked his first day back in theatre at the Royal Melbourne Hospital, as part of his role with Zimmer. Mr Neal said putting on the lead suit and being required to stand on concrete floors, caused him to feel pressure in his back, such that he realised he would be unable to continue working in that manner. Mr Neal felt that his back was letting him know that “this is not going to happen”.
73Mr Neal said the next day, his back condition deteriorated whilst at home. He stated, “I was standing in the kitchen and I think I was having a cup of coffee or something, and I just sort of lent across or took a sidestep and the pain was excruciating, and it just got – had got so much worse” (“the sink incident”).[1]
[1]Although Mr Neal did not expressly refer to the sink in his description of this incident, numerous medical reports identify this incident as occurring whilst he was standing at the sink, such that for the sake of consistency, I shall refer to this incident as “the sink incident”
74On 15 April 2012, Mr Neal attended upon general practitioner, Dr Maher Luka, at the Coburg Family Medical Centre for the first time. At this appointment, Mr Neal complained of epigastric and umbilical pain for a three-week period, together with heartburn, and such pain was worsening. Dr Luka booked Mr Neal for an endoscopy. Once again, there was no reference to any back pain at this attendance.
75On 28 April 2012, Mr Neal attended upon Dr Luka. On this occasion, Dr Luka arranged for a CT scan of Mr Neal’s abdomen and pelvis, with a note that Mr Neal was suffering from abdominal pain and weightloss. Once again, there was no reference to any back pain at this attendance.
76On 3 May 2012, Mr Neal attended upon Dr Luka and complained of symptoms consistent with colitis. Once again, there was no mention of any back pain. It was not until 10 May 2012, that Dr Luka recorded Mr Neal was suffering back pain. At that time, Dr Luka prescribed Mr Neal Endone medication. There was no reference as to the cause or duration of Mr Neal’s back pain in the clinical note of this attendance.
77On 14 May 2012, Mr Neal attended upon general practitioner, Dr Shamshad Chaudary, at Dr Luka’s clinic. There was a note of complaint of back pain with a discussion regarding analgesia.
78On 15 May 2012, Mr Neal attended upon Dr Luka, who prescribed Endone and referred Mr Neal for a CT scan. Dr Luka’s clinical notes of this day referred to “rapid onset of low back pain”. When this was put to Mr Neal in cross-examination, he said the reference to “rapid” was that Dr Luka had seen him unable to stand in the waiting room and there had been a rapid deterioration in his inability to walk.
79On 16 May 2012, Mr Neal attended on gastroenterologist and consultant physician, Dr Peter Tagkalidis, who, in a report dated 17 May 2012, recorded Mr Neal’s symptoms as left iliac fossa pains, with no change in bowel habit or rectal bleeding, significant iron deficiency, intermittent rectal bleeding from haemorrhoids, and midline lower back pain. After consulting the investigative medical material, Mr Tagkalidis concluded that the gastric biopsies showed no helicobacter and that the colonoscopy showed some mild gastritis and haemorrhoids, and that Mr Neal’s blood tests showed a mild transaminitis, none of which he believed would account for his symptoms. When asked about his attendance on Mr Tagkalidis, Mr Neal said that he has no recollection of reporting midline lower back pain to Mr Tagkalidis.
80Also, on 16 May 2012, a CT scan was taken of Mr Neal’s lumbar spine. It was reported as demonstrating a significant broad-based posterior disc bulge at L4-5, causing spinal canal stenosis, indentation of the thecal sac, and “most likely of bilateral descending L5 nerve roots”. It was also reported as demonstrating broad-based posterior disc bulges at L2-3 and L3-4 levels, causing some thecal indentation and probable nerve root impingement.
81In May 2012, Mr Neal said that he informed Zimmer that, as he had a serious medical condition, he was not able to continue in his employment. Mr Neal said that at this time, he only told Zimmer about his abdominal problems, as he did not want them to know about his back injury. It was ultimately agreed with Zimmer that Mr Neal would submit his letter of resignation on 11 May 2012, and he would give five weeks’ notice, such that his last day of employment would be 15 June 2012. Mr Neal said that he did not do any work for Zimmer during that period.
82On 4 June 2012, Mr Neal emailed his manager at Zimmer, Mr Richard Goss, the subject line of which was “Please forward workcover (sic) forms today”. In this email, Mr Neal requested that Mr Goss forward “claim forms today”, so that Mr Neal could get his “GP and specialist to fill them out over the next two days”. An email sent to Mr Neal from Mr Goss later that day provided Mr Neal with both a Zimmer incident report and a CGU Workers Compensation’ form. In this email, Mr Neal was informed that, when returning the forms, he should include any medical certificates he received in relation to “the workplace injury”.
83When this email exchange was put to Mr Neal in cross-examination, he stated that the forms he had sought were in relation to his superannuation. He said that he had never intended to bring a claim against Zimmer, as there had never been an incident at work, and he hid his back injury the whole time he was working there.
84When Mr Neal was asked to explain the reference to “workcover forms” in the subject line of the email, he said that it may have been either a typo from him, or it was in response to their emails. When it was then pointed out to Mr Neal that the email chain had originated with him sending the first email on that day, which requested the WorkCover forms, he simply restated that he did not want the forms and had never submitted them.
85On 19 June 2012, Mr Neal was assessed by a musculoskeletal physiotherapist, Ms Janine Shifman, at the Neurosurgery Clinic at St Vincent’s Hospital. In a report dated 19 June 2012, Ms Shifman noted that Mr Neal had hurt his back five weeks prior when he was bending over a sink and noticed a grabbing sensation in his lower back. Ms Shifman also noted that Mr Neal did not report any major back injury in the past.
86When this was put to Mr Neal in cross-examination, he said that that was part of a “component of the story” that he told Ms Shifman. He said that he also told her about the incident in October 2011, but could not explain why it was not in the report, as “it’s not my report”. Mr Neal denied that he told Ms Shifman his back pain had been constant since the time of the sink incident.
87Mr Neal also stated that he could not recall telling Ms Shifman that he had not had any major back injury in the past. He later acknowledged that he may not have mentioned it to her.
88On 20 June 2012, Mr Neal re-attended upon Dr Aboud in respect of his back pain and obtained a script for Voltaren and Endone. Mr Neal said that he again made a deliberate decision not to tell Dr Aboud on this occasion about the October 2011 incident, even though by that time, Mr Neal acknowledged he had ceased his employment with Zimmer.
89On 23 August 2012, Mr Neal completed a total and permanent disability claim with superannuation company, AIA. In part of this form, when he was asked when the injury or symptoms of his sickness first occurred, Mr Neal wrote “10/4/12 by way of gradual process”. Further, when asked when he first consulted a doctor or medical provider for this condition, he answered “April 2012”, and later stated that he had never had the same or similar injury or sickness before.
90When asked to explain these answers on this form, part of Mr Neal’s evidence was as follows:
Q:“The next question at is, ‘when did the injury or symptoms of your sickness first occur?’ ‘10 April 2012 by way of gradual process’?---
A:That’s correct because the injury started in October 2011.
Q:It doesn’t say that though, does it?---
A:No, it doesn’t but that’s why it says, ‘By way of gradual process’.
Q:You can’t be serious, Mr Neal?---
A:I’m absolutely serious.
Q:Just a minute. It’s got a date of when it first started, clearly, April 12, not October 11, and you say ‘By way of gradual process form that date,’ that’s what you mean?---
A:That was the last date of my employment and I was always told that that is the date relevant for the TPD claims.
Q:Who told you that?---
A:Obviously my lawyers, they are the ones that chose the date. They said you put down the date as the last day of your employment, the last day you were employed by them.”
91Upon further questioning as to his answers in this document, Mr Neal said:
Q:“And up the top it says when did you first consult a doctor or a medical provider for your injury? And it’s got April 2012. That’s wrong too, isn’t it?---
A:Again, that’s about the relevance of that date, the 10th of the 4th being the last day of the - - -
Q:It’s wrong, is it not? On what you say to Her Honour now, it’s wrong, is it not?---
A:No, I don’t believe that.”
92Mr Neal also said that he was under the impression that he did not have to disclose any information on this form if such information was older than seven years:
Q:Yes, and so you say that because of some discussion which you can’t identify, you think they were happy for you to put lies into this document?---
A:If it was before seven years, which for some reason I’ve got that in my mind, they weren’t interested in anything that occurred prior to that date. And I know as far as their - the superannuation was concerned, it was seven years. Then nothing was regarded, and if it hadn’t been there for seven years, you don’t have to mention it.”
93On 6 September 2012, Dr Luka completed an AIA personal medical attendance report in respect of Mr Neal. In part of this report, Dr Luka stated that Mr Neal’s epigastric pain had dated back to 15 April 2012, and his back pain dated to 10 May 2012. When Mr Neal was asked about this, he stated that it was because he had not raised his back pain with Dr Luka until that day when Dr Luka saw that he could not move in the waiting room.
94On 1 October 2012, Mr Neal was referred by Dr Luka to psychiatrist, Dr Raid Al Humrany. In a letter from Dr Al Humrany to Dr Luka dated 1 October 2012, Dr Al Humrany detailed the history which he had obtained from Mr Neal at this appointment. He noted that Mr Neal informed him that earlier that year, his mood had started to deteriorate but that he was able to move on with his work commitments and life in an adequate way.
95Dr Al Humrany then recorded:
“… Around April, Mr Neal told me that he had a major problem in his back and discovered to have multiple degenerative changes with ongoing nerve pressure, that compounded by abdominal pain with the result of leaving the job and being on sick leave for around two months. … .”
(sic)
96When this extract of Dr Al Humrany’s report was put to Mr Neal in cross-examination, he said that it was “partly factual”. Mr Neal stated that he did not believe that he told Dr Al Humrany that he had a major back problem in April 2012, but rather believed that he told Dr Al Humrany that was the last day that he was able to work because of his back. Mr Neal said that he does not recall whether he mentioned the October 2011 incident to Dr Al Humrany.
97On 12 December 2012, Mr Neal was examined by rheumatologist, Dr Alex Stockman. In Dr Stockman’s letter to Dr Luka dated 12 December 2012, he detailed the following history:
“He stated that in April of this year he was standing at a sink, he made a slight movement and he developed very severe and sharp lumbar back pain. The pain has continued to worry him since and he is quite disabled because of the pain. Since a month or so after the onset of pain he has been complaining of some weakness in the right leg and pain down the left leg. Moreover, the pain has gradually spread to involve the thoracic region and the neck associated with headaches.
His lumbar back pain is there most of the time, he is limited with walking to about 10 to 15 minutes and some days he can hardly walk. There is occasional paraesthesia in the legs and he admits to pain on coughing, less so when sneezing. There is no bowel or urinary disturbance.
In the past, he had an episode of back pain in November of last year which was nowhere near as severe and it subsided after one month.”
98When Mr Neal was asked about this attendance and Dr Stockman’s report, he agreed with the accuracy of the report in respect of his symptoms at that time, but denied that he told Dr Stockman his symptoms had subsided after a month in the previous November.
2013
99Mr Neal said that there was no improvement in his back pain and that it continued to get worse throughout 2013.
100In November 2013, for the purpose of an assessment for AMP, in respect of one of the insurance claims he had lodged, Mr Neal was assessed by consultant occupational physician, Dr David Prestage. In a report dated 25 November 2013, Dr Prestage noted that Mr Neal said that his back was injured in April 2012 while bending over a sink. In this report, Dr Prestage stated that Mr Neal heard an audible noise in his back and was aware of a grabbing sensation in the lower back. The pain was broad-based across his pelvis, and he was unable to weight bear, which was a problem, as he was alone at home.
101When this history was put to Mr Neal in cross-examination, he denied that he said he had been bending over the sink. Mr Neal said that this doctor had misinterpreted what he told him.
2014
102In approximately 2014, Mr Neal said that he reconciled with his wife, Marina, and moved to Ocean Grove to live with her and his son, Kyle. He said that at this time, the intensity of his lower back, thoracic and leg pain and loss of mobility was such that he needed help with selfcare, such as dressing himself and washing.
103In March 2014, Mr Neal was assessed by psychiatrist, Dr Chris Grant, for the purposes of his insurance claim with AIA. In a report dated 11 March 2014, Dr Grant obtained a history from Mr Neal that he had ceased employment on 9 April 2012, and that during the course of his employment with Zimmer, he developed problems with back pain. When this was put to Mr Neal in cross-examination, he said that he could not recall telling Dr Grant this and denied he would have said it.
104Also in his report, Dr Grant noted Mr Neal’s past psychiatric history included an episode of depression in the 1990s and that after two weeks, that episode of depression had resolved. There was no reference to Mr Neal’s depressive episodes in 2004 and 2005, including his suicide attempts and ECT treatment. When asked about this in cross-examination, Mr Neal stated that he could explain the absence of such a history in Dr Grant’s report, and said that he could not recall the interview.
105In April 2014, Mr Neal was examined by Ms Jo Muirhead, rehabilitation consultant, from Purple Co Pty Limited, in respect of his employability for the purpose of his claim with CommInsure. In this report, it was stated that Mr Neal confirmed there was no specific incident that resulted in the onset of lower back pain, and that there had been a gradual onset of symptoms in April 2012 and such symptoms had continued to deteriorate since onset. When this history was put to Mr Neal in cross-examination, he stated that it must have been a misunderstanding by Ms Muirhead.
2015
106Towards the end of 2014 and into early January 2015, Mr Neal said that his right leg had stopped working, such that he could not walk. Mr Neal said that Dr Luka referred him to St Vincent’s Hospital for an emergency review.
107On 8 January 2015, Mr Neal underwent an L4-5 microdiscectomy and spinal rhizolysis at St Vincent’s Hospital. Mr Neal said that there was a slight improvement in his condition after the surgery, in that he was able to move his leg, but that his acute episodes of pain increased and he still had footdrop.
108On 9 June 2015, Mr Neal was reviewed at the Neurosurgery Clinic at St Vincent’s Hospital. At that time, it was noted that there had been no resolution of Mr Neal’s symptoms and that, if anything, there had been a worsening of them. It was considered that further surgery was unlikely to give him a resolution of his symptoms. Instead, it was recommended that Mr Neal use analgesia, exercise, Pilates and diet for relief of his pain. At that time, it was considered that Mr Neal was unlikely to ever be gainfully employed in a capacity for which he was reasonably qualified because of education, training and experience.
2016
109In January 2016, Mr Neal was referred to the Barbara Walker Centre for Pain Management. In a report dated 4 January 2016, it was noted that Mr Neal required assistance with personal care and other activities of daily living. It was noted that he was currently taking Norspan patches and 10 milligrams of Endone, six times daily.
110At the time of this assessment, Mr Neal complained of constant aching pain in his back, and that he had suffered multiple falls in the last three months. At that time, it was recommended that Mr Neal undergo a pain management program in Geelong and undergo hydrotherapy. It was also recommended that Mr Neal commence on Targin medication so as to reduce the amount of Endone consumption.
111In this report, it was noted that Mr Neal had “suffered from lower back pain since four years ago which started with a sudden movement and twisting of back …”. When this aspect of the report was put to Mr Neal in cross-examination, he denied that this history was obtained from him. Mr Neal also denied that it was a reference to the sink incident, as he said that on that occasion he had stepped to the side and had not twisted anything.
112In May 2016, for the purpose of assessing Mr Neal’s needs for daily living for his insurance claim with AMP, Mr Neal was assessed by occupational therapist, Ms Nicole Mills, from Recovre. In a report dated 30 May 2016, Ms Mills noted that Mr Neal informed her that he had sustained his “compensable injury” in April 2012. Ms Mills noted that Mr Neal advised her that he had initially experienced some abdominal pain. However, the injury seemed to occur spontaneously whilst he was standing at a bench. It was noted that he heard a “pop” and then he could suddenly barely move. When this aspect of Ms Mills’ report was put to Mr Neal in cross-examination, he denied that he would have said that.
113In this report, Ms Mills reported that, at that time, Mr Neal complained of constant pain in his lumbar and thoracic spine and legs, together with constant pain in his shoulders. It was noted at that stage, that Mr Neal was taking morphine, OxyContin and Endone daily. Ms Mills ultimately concluded that Mr Neal demonstrated an inability to complete showering, dressing, and cleaning himself without assistance. Accordingly, Ms Mills recommended the purchase of a shower chair, a toilet chair, and apparatus to assist Mr Neal in getting socks on.
114Mr Neal said that he uses the shower and toilet chair presently but does not use the toilet aid and has not used the sock apparatus.
115On 13 September 2016, Mr Neal lodged a WorkCover Claim Form in respect of the incident injury the subject of this claim. In his Claim Form, Mr Neal stated that he had suffered an injury to his cervical spine and lumbar spine, with permanent nerve damage in both legs.
116When asked to describe what happened and how he was injured, Mr Neal answered as follows:
“Loading orthop[a]edic tool kit into boot of my car to educate staff at a hospital. Heard loud pop noise and instant pain in back.”
117In this form, Mr Neal did not identify a date or time when this injury occurred, but stated that he had reported it to Mr John O’Hare, who “Filled in Incident Report Form”. Also in this form, when asked if he had previously had another injury or condition that related to this injury, Mr Neal left that section blank.
118This form was signed and declared by Mr Neal as being true and correct.
119Mr Neal was cross-examined at length in respect of the answers provided in this Claim Form. He stated that what was in the form was not correct, as that is not what had happened to him. He said that some of the writing on the form was his, but some of it was not. He said that he filled out part of the form and then sent it back to his lawyers, as they were going to fill in what he had not filled in.
120When asked specifically about the description of the incident contained in this form, Mr Neal said that of the statement contained in that answer, the words “Loading orthopaedic toolkit into boot of my car” were written in his handwriting, but he did not believe the words “educate” and “staff” were his handwriting. However, Mr Neal accepted that the subsequent words being “at a hospital. Heard loud pop noise and instant pain in back” were also his handwriting.
121Mr Neal conceded that without the words “educate staff”, the statement contained in that box “would not have made a lot of sense, it is not complete”. Notwithstanding that concession, Mr Neal maintained that he had not written the words “educate” nor “staff”. He conceded that such an account was not consistent with what he now said happened on 21 October 2011.
122Mr Neal was not able to explain why he had not written the date of this incident occurring in October 2011 in circumstances where he said he had always known that was when he had hurt his back.
123On 6 October 2016, Mr Neal provided a statement to an investigator retained by WorkCover. In this signed statement, Mr Neal detailed the nature of his work duties and the surgical tools and kits that he was required to work with. Mr Neal then stated that, in respect of the incident in October 2021, he attended the Royal Melbourne Hospital to pick up three kits weighing around 15 kilograms each. Mr Neal stated that he could not recall the manner in which he moved them from the hospital and out to the back of his vehicle “due to the time lapse”. Mr Neal stated that he was alone at the time and he picked up one of the kits, and bent forward to place it into the boot of his vehicle, when he felt a “pop” in his back, followed by excruciating pain.
124In cross-examination, Mr Neal said that although in that statement he said he could not recall how he moved the toolkits down to his car, his memory “is better off now because it’s become more salient and we have been focussing on it”.
125On 14 October 2016, Mr Neal submitted a Worker’s Claim for Impairment Benefits Form in respect of the lower back injury that he suffered at the Royal Melbourne Hospital in October 2011. In this form, Mr Neal stated that he suffered his injury when he was “requested to return tool kits to office” and whilst lifting these into the boot of his car.
2017
126Mr Neal’s son, Kyle, died unexpectedly in 2017.
127Late in 2017, Mr Neal was diagnosed with prostate cancer. He said that his back condition prior to that diagnosis remained stable, with pain relief.
128To treat his prostate cancer, Mr Neal underwent a prostatectomy in April 2018. An ileostomy bag was required for about six months, which he said was very difficult to manage with his back injury, particularly if he was not at home.
129Mr Neal is still under the care of the Peter MacCallum Cancer Centre to treat his metastatic cancer, but said that his levels are currently low.
Mr Neal’s current condition
130Mr Neal said that he continues to suffer constant back pain, which prevents him doing many things in and around his home. Mr Neal said that he requires assistance from his wife to help him get dressed.
131Mr Neal said that his wife does most of the housework and outside maintenance.
132Mr Neal said that he currently takes the following medications, all of which are prescribed for him by Dr Luka: Norspan, Endone, OxyContin and Duloxetine.
133Mr Neal that that his right foot still drags at times and he has had multiple falls. Mr Neal said that he will often use a walking stick when he goes out, or he may use his wife’s arm in the event he needs to steady himself. However, Mr Neal said that he can sometimes walk without his stick and that he walks incredibly slowly, with an altered gait.
134In cross-examination, video surveillance was shown of Mr Neal and his wife getting a coffee, walking on the beach and doing grocery shopping. Mr Neal did not have a walking stick with him. He appeared to walk at a relaxed pace, with no obvious restriction in his mobility for the length of the video, save for when in the supermarket, he knelt on his knee to pick up an item on the bottom shelf.
Mrs Neals’s evidence
135Mrs Neal said that she married her husband in 1983. Between 2004 and 2014, Mr and Mrs Neal were separated.
136Mrs Neal could recall Mr Neal having a painful back while he was working in the ambulance service.
137Prior to their separation in 2004, Mrs Neal said that she and her husband exercised regularly, including going to the gym and cycling four to five times a week before work, as well as participating in water skiing with the Geelong Water Ski Club. Mrs Neal said, however, that they sold their boat that they used for water skiing in the late 1990s and ceased their membership with the club.
138Mrs Neal did not know whether Mr Neal was taking Panadeine Forte in the period from 2000 to 2010, but she knew that up to the time of their separation, he was taking some analgesic medication, and she believed this medication was for Mr Neal’s back pain.
139During their period of separation, Mr and Mrs Neal did not live together. Mrs Neal lived in Ocean Grove, while Mr Neal lived in Melbourne with their two sons. She said that during that time, they remained friends because of their children, such that they would catch up over the phone or go for coffee every now and then.
140Mrs Neal said that given they were separated at the time of the 2011 incident, she could not give evidence in respect of the condition of Mr Neal’s back at that time. However, she said that when they rekindled their relationship in 2014, Mr Neal was unable to work due to the condition of his back. Mrs Neal said that since then, she has had to provide assistance to her husband in respect of self-care, including helping him dry his feet and lower legs after showering, and getting dressed, especially in putting on his socks, boxers, pants and shoes with laces.
141Mrs Neal said that she although she works full time as a nurse, she does most of the duties inside and outside the home.
142Mrs Neal said that she and Mr Neal now go on walks together. Depending on Mr Neal’s condition that day, they might only walk to the corner, around the block or sometimes go to the beach. She described their walks as slow.
143I considered Mrs Neal a co-operative witness. Given that she was separated from Mr Neal at the time of the October 2011 incident, she was not able to corroborate his allegation as to how the incident occurred, or the condition of his back in the year subsequent to it.
Dr Luka’s evidence
144Dr Luka was called to give evidence in respect of the treatment he provided Mr Neal since 15 April 2012. Dr Luka said that it was not until 10 May 2012, that he recorded that Mr Neal complained of back pain. In cross-examination, Dr Luka accepted that he did not have a record of when this back pain started but said that there must have been a history of back pain before that date, as someone would not attend on a doctor without such pain existing prior to consultation.
145Dr Luka was cross-examined as to the reference in his clinical notes that there had been a rapid onset of lower back pain on 15 May 2012. Dr Luka said this was an indication that the back pain “became apparent or obvious” at this time and that the pain “progressed very rapidly”. Dr Luka stated that his notes could mean both rapid onset and rapid progression. Dr Luka also said he thought Mr Neal possibly mentioned that he injured his back at work at this time, notwithstanding that Dr Luka had not recorded it in his notes.
146On 14 June 2012, Dr Luka completed a Medical Attendant’s Statement for Mr Neal’s claim with AIA. In this form, Dr Luka stated that Mr Neal was suffering from abdominal pain, weightloss and back pain, and that Mr Neal had been unfit for work since 11 April 2012.
147On 6 September 2012, Dr Luka completed a Personal Medical Attendant’s report for Mr Neal’s claim with AIA. In this report, Dr Luka stated that on 10 May 2012, Mr Neal suffered back pain, for which he had a CT scan. In response to a question as to the duration of the injury, Dr Luka wrote “Till current”. When asked about this in cross-examination, Dr Luka stated that he considered this question was not asking for the date of the onset of the back pain, but the date when presentation was made.
148On 14 September 2012, Dr Luka provided a Medical Attendant’s Statement in respect of Mr Neal for an income protection claim. In this form, in answer to specific questions, it was stated that Mr Neal’s medical conditions which included abdominal pain, weightloss and back pain, were “not related to employment”. When this form was put to Dr Luka in cross-examination, he said that he would only say that abdominal pain and weightloss were not work related. Dr Luka then said that he was not sure which parts of the form were in his handwriting. Dr Luka also said that although the document bore his stamp, as it did not have his signature on it, he felt that he must not have been satisfied with this document.
149On 20 September 2012, Dr Luka completed another Medical Attendant’s Statement for AIA. In this report, Mr Luka stated that Mr Neal was unable to perform his usual occupation, as his “back and disc prolapse” limited his ability to perform duties including carrying heavy orthopaedic equipment, lots of driving and standing in theatre for long hours. In cross-examination, Dr Luka said that this was a reference to the way in which Mr Neal suffered his injury.
150On 19 July 2017, Dr Luka wrote a letter to the Accident Compensation Conciliation Service in relation to his treatment of Mr Neal, for the purpose of his claim for a lump sum benefit. In this report, Dr Luka stated that Mr Neal sustained an injury “lifting orthopaedic tool kits into the boot of his car on request to remove them by his employer”. It was noted by Dr Luka that this occurred on or around October 2011, and the extent of this injury was realised in early April 2012. Dr Luka stated that there was no new injury suffered in April 2012, and that it was only that “this was the test of his ability to work”. Further, Dr Luka noted that prior to Mr Neal’s injury in October 2011, he was extremely physically fit, with the ability to work, and he had no pre-existing injury.
151When Dr Luka was cross-examined about this report, he was not able to identify with any precision when he obtained this history from Mr Neal. Dr Luka stated that he believed he had it by at least September 2012, and he referred to the answer he provided in the Medical Attendant’s Statement dated 20 September 2012.
152When it was put to Dr Luka in cross-examination that the statement dated 20 September 2012 indicated his opinion in respect of whether Mr Neal could perform such duties as at that time, and was not a statement that he had suffered his back injury in the course of his employment, Dr Luka seemed unable to appreciate the difference between the two propositions. I consider this aspect of Dr Luka’s evidence entirely unsatisfactory. It was unclear to me when Dr Luka obtained the history he detailed in his report.
153In a report to Mr Neal’s solicitors dated 16 December 2019, Dr Luka stated that he was aware that, as part of Mr Neal’s employment with Stryker, he was required to carry heavy bags, instruments and supplies, as well as to stand in theatre for an excessive amount of time. Dr Luka stated that he considered this would have been a definite contributing factor to Mr Neal’s ability to return to work at his normal work capacity. I note that in this report, Dr Luka made no reference to the October 2011 incident.
154Dr Luka stated that, at the time of this report, Mr Neal suffered from daily back pain for which he would require long-term analgesics to assist with his pain management. At that time, it was noted that Dr Luka prescribed Mr Neal Endone, Norspan patches, OxyContin and Pantoprazole.
155For parts of his evidence, I considered Dr Luka non-responsive. At other times, his evidence was confusing. In any event, given he did not see Mr Neal until six months after the October 2011 incident, and as he had no written reference to the alleged circumstances of that incident until July 2017, Dr Luka did not assist in the matter I must ultimately determine – what happened in the October 2011 incident.
Mr O’Hare’s evidence
156Mr John O’Hare commenced his employment with Stryker in April 2006 and continues to be employed by it, with him currently being in an executive regional manager role for Western Australia and South Australia.
157Mr O’Hare said that as at October 2011, he was regional manager for the trauma team. He said he can recall that Mr Neal telephoned him at that time, and informed him that he “hurt or twinged his back” lifting a crate or a tub. Mr O’Hare said that as soon as Mr Neal informed him of this, he reported it to Human Resources at Stryker. Mr O’Hare said on 25 October 2011, he then forwarded to Mr Neal an incident form in an email, “to report the incident formally to our business”. Mr O’Hare said that having forwarded an incident report to Mr Neal, that was the last communication he had in relation to the matter.
158Mr O’Hare denied that he told Mr Neal he would complete the incident form for him. He said it was not his role to fill out such a form. Mr O’Hare said that the only information he had was his conversation with Mr Neal, and his obligation was to ensure that the incident was recorded correctly, and thus he gave the form to Mr Neal for him to complete.
159Mr O’Hare also gave some general evidence in relation to Stryker’s business model, including the surgical toolkits either being on consignment or loan to hospitals. Mr O’Hare also accepted that as part of Mr Neal’s role, he could be occasionally required to load and unload instrument kits into the boot of his vehicle, with such equipment weighing anything up to a maximum of 7 kilograms. Mr O’Hare said that although it was not encouraged, as sales representatives, they did move “stuff around for demo for presentation” and that Mr Neal would use his own vehicle to move demonstration equipment.
160Mr O’Hare said that if surgical equipment was taken out of a hospital, it would be cleaned and sterilised first. He said that would ordinarily takes two to three hours.
161I considered Mr O’Hare a co-operative witness. I accept his evidence that it would not have been for him to complete an incident report on behalf of Mr Neal and I consider his email to Mr Neal corroborates such evidence.
Mr Bill Contoyannis
162Mr Neal called engineer, Mr Bill Contoyannis. In a report dated 6 April 2021, Mr Contoyannis expressed an opinion based upon assumed facts, which he had arrived at following a review of numerous documents, and after interviewing Mr Neal. Such instructions were predominantly consistent with the account of the October 2011 incident which Mr Neal had provided as evidence in his case; namely, that on 21 October 2011, after having completed three surgical procedures, he was called by Stryker’s warehouse and directed to bring kits of surgical instrument cases back to the warehouse, as there was an urgent trauma case at the Austin Hospital.
163Mr Contoyannis obtained a history from Mr Neal that this was unusual and not a task he had performed before. Mr Contoyannis obtained a history from Mr Neal that the kits he was required to return to the warehouse consisted of about eight or nine instrument cases. It was then noted that each instrument case had trays of surgical instruments which weighed around 7 kilograms.
164Mr Contoyannis then recorded that Mr Neal used a wheelchair to take the kits down to his car which was parked outside the hospital. It was noted that Mr Neal had to fit eight or nine instrument cases into the car boot, and that as he lifted the second instrument case, his back popped and he immediately felt pain. Mr Contoyannis also noted that previously Mr Neal “had transported small components of kits previously with his car when he was conducting training for theatre nurses and the like, however, he had never taken an entire instrument case”.
165Mr Contoyannis was of the opinion that the defendant’s system of work was unsafe for not having a contingency to cover a situation that a courier was unavailable. Mr Contoyannis suggested that to respond to this possible scenario, there could be extra staff available at Stryker for when couriers were not able to be used. However, Mr Contoyannis acknowledged that he did not have sufficient information as to what the additional costs associated with this would be.
166Mr Contoyannis stated that in a vehicle with a rear shelf, items can be placed directly into the cargo hold area, and such vans were suitable for the safe transportation of instrument cases. Mr Contoyannis noted that if an appropriate vehicle was not available, then there should have been other procedures for what would occur if the appropriate vehicle and handling equipment was unavailable in an emergency.
167Also in his report, Mr Contoyannis noted that Mr Neal had previously moved small components of kits with his car when he was conducting training. However, Mr Contoyannis said that he did not quiz Mr Neal in respect of what this aspect of his work involved.
168Mr Contoyannis was cross-examined in respect of aspects of his report which were either inconsistent with Mr Neal’s oral evidence or inconsistent with previously prepared documents, including the Claim Form and Mr Neal’s signed statement of October 2016. Mr Contoyannis stated that when he interviewed Mr Neal, he did not seek to reconcile his statement with previous versions, and rather provided his opinion on the assumed facts as stated above.
169Ultimately, I considered Mr Contoyannis’ evidence and opinion irrelevant, as it was in respect of a version of the October 2011 incident, that I am not satisfied occurred in the way claimed.
Medico-legal opinions
Professor Richard Bittar
170Mr Neal was examined by neurosurgeon, Professor Richard Bittar, who examined Mr Neal in November 2019 and July 2021 and provided four reports in this matter.
171In his first report dated 1 November 2019, Professor Bittar detailed Mr Neal’s past medical history, including his initial work-related back injury in 1997, and then his subsequent aggravation in 1992 or 1993. Professor Bittar noted that, at that time, Mr Neal did not work for several years but, with a regular exercise program, he became “completely asymptomatic and did not have any ongoing treatment requirements in relation to his lower back”.
172Professor Bittar then detailed the circumstances of the October 2011 incident, with such circumstances being relatively consistent with the evidence provided by Mr Neal at trial. Professor Bittar then noted that Mr Neal had approximately one month off work due to lower back pain but, during that time, he was treated with Endone. It was then noted that his lower back pain improved “but did not resolve”. Professor Bittar then stated that he understood that, in April 2012, Mr Neal attended for his first theatre case with his new employer, and that he experienced lower back pain during the surgery. That evening, with no obvious precipitating event, Mr Neal experienced severe lower back pain. Professor Bittar also then noted Mr Neal’s complaints of persisting pain since that time, and that he ultimately developed footdrop and required surgery.
173Professor Bittar then concluded that, as Mr Neal had been asymptomatic for several years leading up to his injury in October 2011, it was Professor Bittar’s opinion that Mr Neal’s employment with Stryker was a dominant contributing factor to his ongoing pain disability and requirement for treatment. Professor Bittar was of the opinion that Mr Neal had suffered a lumbar intervertebral disc prolapse and aggravation of lumbar spondylosis, with resulting requirement for surgery and persistent radiculopathy.
174Professor Bittar was of the opinion that the April 2012 worsening of Mr Neal’s condition represented a “natural deterioration in the injury sustained as a result of the October 2011 incident”. Professor Bittar stated that, if it was not for the incident in October 2011, it was highly unlikely that Mr Neal’s condition would have worsened to the extent that it did in April 2012. Therefore, Professor Bittar concluded that Mr Neal’s employment with Stryker, up to and including the incident in October 2011, was a significant contributing factor to his current injury and condition.
175In a subsequent report dated 11 February 2020, Professor Bittar stated that, as there was no evidence that Mr Neal had made a substantial recovery from the injury he suffered during the course of his employment with Stryker in 2011, Professor Bittar considered that his subsequent deterioration of symptoms was consistent with his employment with Stryker being a significant contributor to his lumbar spine condition and ongoing pain, disability and requirement for treatment. I note that at the time Professor Bittar offered this opinion, he was not aware of the history obtained by Dr Stockman in November 2012.
176In his final report dated 20 July 2021, Professor Bittar provided a further opinion in this matter, after having been asked to review an extensive number of clinical reports and records, including most of the clinical history detailed above. In this report, Professor Bittar repeated the previous history he had stated in his first report that, after 1997, and with a regular exercise program, Mr Neal had become completely asymptomatic and did not have any ongoing treatment requirements in relation to his lower back.
177Further, I note in this supplementary report, Professor Bittar repeated the history he stated in his first report that Mr Neal’s lower back pain improved after the October 2011 incident, but did not resolve.
178Professor Bittar ultimately reaffirmed his previous opinion that the activities undertaken by Mr Neal in the course of his employment with Stryker and, in particular, his employment on 21 October 2011, were dominant contributing factors to his current incapacity.
Dr Graeme Doig
179In October 2016, Mr Neal was examined by general orthopaedic and trauma doctor, Dr Graeme Doig. In his report dated 10 October 2016, Dr Doig detailed Mr Neal’s history, which included previous lower back injury in 1997, which settled with conservative management. He then noted the circumstances in which Mr Neal alleged he had injured his back in October 2011 and that he had subsequently gone on to have surgery performed in January 2015. At that time, based on the history provided to him by Mr Neal, Dr Doig was of the opinion there had been minor disc bulging at the L3-4 and L4-5 levels, and that Mr Neal had sustained a soft-tissue injury in the lifting incident in October 2011.
180On 23 December 2020, Dr Doig provided a supplementary report in this matter, based on a review of an extensive number of clinical reports and records, including most of the clinical history detailed above. Dr Doig considered that such reports indicated that since 1994, Mr Neal had been suffering ongoing back problems, with medical imaging revealing pathology at the L4-5 intervertebral disc, and that such records indicated that he suffered longstanding lower back issues. Given that past history, Dr Doig considered there was no evidence that Mr Neal’s employment with Stryker resulted in any significant deterioration in his longstanding back problems, save that he may have suffered a temporary symptomatic exacerbation of his pre-existing pathology. Ultimately, Dr Doig was of the opinion there was no evidence that the need for surgery in January 2015 was a result of any incident in October 2011.
Professor Gavin Davis
181In June 2019, Mr Neal was examined by neurosurgeon, Professor Gavin Davis. In a report dated 14 June 2019, Professor Davis detailed some of the clinical records which he had been provided with in respect of Mr Neal. After his examination of Mr Neal and his review of those clinical records, Professor Davis stated that he was of the opinion that Mr Neal had a surgically-treated lumbar disc prolapse with constitutional lumbar degeneration and Chronic Pain Syndrome. Professor Davis stated that as the medical imaging demonstrated that Mr Neal suffered constitutional degenerative changes within the lumbosacral spine prior to 2011, the natural history of constitutional degeneration is one of progressive degeneration. Therefore, Professor Davis concluded that the acute disc prolapse sustained on 21 October 2011 would “not necessarily have occurred as part of the natural course of the lumbar degeneration”.
182Professor Davis considered that Mr Neal’s surgery was required for the acute disc prolapse. However, he concluded that given Mr Neal’s injuries prior to 2011 and the extensive degenerative change identified in the numerous radiological investigations, in his opinion, most of Mr Neal’s current symptoms could be appropriately apportioned to his pre-existing condition in his spine.
183In a supplementary report dated 23 March 2020, Professor Davis was asked to consider further documents forwarded to him, including Dr Aboud’s clinical records, Ms Shifman’s report and Dr Alex Stockman’s report. Professor Davis concluded that it was “evident that the patient did not report any significant work-related injury in October 2011”.
184As the contemporaneous notes of Dr Aboud did not refer to work-related injury, together with the multiple reports of the medical practitioners which referred to the sink incident instead of the October 2011 incident, Professor Davis sought to change the opinion he had previously offered. He stated that as there was “complete absence” in the contemporaneous notes of any reference to a work-related injury, while accepting Mr Neal had an episode of pain in 2011, Professor Davis considered that this was constitutional in nature and not related to the alleged lifting incident of October 2011. Ultimately, Professor Davis concluded that in the absence of the contemporaneous records, he was not prepared to state that Mr Neal’s employment was a significant contributing factor to his injury.
Relevance of the medical opinions on causation
185Given my ultimate finding in this matter, these reports are of no relevance to my determination of Mr Neal’s case. However, for the sake of completeness, I note that even if I were persuaded that the October 2011 incident happened in the way Mr Neal now alleges, and further, I accepted that the defendant was negligent and/or in breach of its statutory duty, Mr Neal would have failed to satisfy me that any such negligence or breach of duty was a cause of more than a very short period of pain and suffering.
186Only Dr Luka and Professor Bittar supported the October 2011 incident being a cause of Mr Neal’s need for surgery and ongoing incapacity. However, Dr Luka did not have a complete medical history for Mr Neal, so in the event I needed to consider his opinion on causation, I would have gained no assistance from Dr Luka in respect of this matter.
187In relation to Professor Bittar, in his most recent report, he stated that he had received the extensive medical records. However, in reaffirming his previous opinion, Professor Bittar failed to identify and explain the significance (if any) of such matters, including: Mr Neal being prescribed Panadeine Forte medication for many years; that as at 2004, Mr Neal’s general practitioner, Dr Stekelenburg, described him as suffering chronic lower back pain, and at that time taking Endone, in addition to Panadeine Forte; Dr Stockman’s history that Mr Neal’s back pain had subsided after one month, and Ms Shifman’s account as to the progression of back pain since April 2012. I accept Stryker’s submissions that there was no clear pathway or analysis in Professor Bittar’s report to understand his conclusion on causation, in circumstances where he had been provided with extensive past clinical and subsequent medical records which were inconsistent with the history which Mr Neal had provided to Professor Bittar, and upon which Professor Bittar had provided his opinion.
Stryker’s challenge to Mr Neal’s account of events
188Stryker challenged Mr Neal’s credibility on multiple grounds: his alleged state of health before the October 2011 incident, the circumstances of that incident, and his post-incident reports. I shall deal with each of these in turn.
Mr Neal’s health before the October 2011 incident
189I accept that Mr Neal’s account of his health in evidence-in-chief was in marked contrast to that which was apparent after the above-mentioned clinical records and reports were put to him. I consider Mr Neal significantly under-reported the periods during which he suffered incapacity from, and required treatment for, his back pain.
190Mr Neal gave a false impression as to the amount of medication he took for his back prior to October 2011. I do not accept his evidence that he was taking Panadeine Forte for psychological problems and not back pain. This is inconsistent with what Dr Stekelenburg reported in 2004. I also note that Mrs Neal gave evidence that up until 2004, she understood Mr Neal was taking pain medication for his back pain.
191I also consider that Mr Neal consistently under-reported to numerous medico-legal and treating doctors the extent of his pre-existing back problems, and at times, the extent of his previous psychiatric problems. Mr Neal’s attempts to explain his selective past history to so many doctors, reflected upon his overall unreliability.
192Finally, Mr Neal’s attempt to explain why he did not give a true account of his past medical history on his Zimmer pre-employment form, on the basis that he thought he was only required to disclose medical matters which had occurred in the previous seven years was a further example of him being a disingenuous witness. Instead of being upfront about his incorrect answers, I consider that Mr Neal sought to self-justify in a way that lacked credibility. I also note that in this same medical questionnaire, Mr Neal disclosed that he had previously had a left knee reconstruction, which was performed in 1990, far earlier than seven years prior to the completion of this form. I consider this internal inconsistency in his answers, demonstrated Mr Neal had no such belief that he was only required to disclose matters which had occurred in the previous seven years. Further, Mr Neal’s later attempt to explain his incorrect answers in this form, by stating that he had spoken to Zimmer and they were happy for him to complete the form with incomplete and inaccurate information, is yet another example of him embellishing answers to justify a document which had inaccurate information in it.
Mr Neal’s account of the October 2011 incident
193Mr Neal did not report the circumstances of the October 2011 incident to any doctor, in either late 2011 or during 2012 – despite numerous medical attendances during that time. Specifically, Dr Aboud notes that Mr Neal’s back pain had been present for two days and came on following a back massage, with no reference to an incident at work.
194The first written account of the October 2011 incident was not until 13 September 2016, when Mr Neal completed his worker’s compensation claim. I consider it of critical significance that Mr Neal’s first attempt to describe the incident, is an account inconsistent with his oral evidence. Further, when Mr Neal was asked to explain this inconsistency, his evidence that the words “educate” and “staff” were not his handwriting, even though such words were in the middle of a sentence, simply defied logic.
195I note that when Mr Neal provided a witness statement in early October 2016, at that time, he said he could not recall how he transferred the toolkits to his car. His now clear account that he used a wheelchair to do this, is hard to reconcile with his previous signed statement. Contrary to what Mr Neal suggested, I do not accept that memories improve with time. Mr Neal’s claim that this has occurred also seemed disingenuous.
196Further, Mr Neal’s evidence that Mr O’Hare said he would fill out the report for him, not only seemed unlikely given Mr O’Hare was not present at the time of the incident, but was inconsistent with Mr O’Hare emailing an incident form to Mr Neal for him to complete. This was another piece of evidence given by Mr Neal which seemed both illogical and disingenuous.
197I consider the entirety of Mr Neal’s evidence as to what occurred in the October 2011 incident to be confusing, unsatisfactory and lacking credibility.
198In its defence, Stryker sought to challenge Mr Neal on the improbability of there being no courier available on a Friday night, and the improbability of surgical equipment being removed from the hospital without it first undergoing a time consuming sterilisation procedure. There was no evidence in respect of the availability of couriers and scant evidence in respect of the need for equipment to be sterilised before leaving the hospital. As such, I have had no regard to such assertions, in rejecting Mr Neal’s account of what occurred on the evening of 21 October 2011.
Mr Neal’s history to doctors as to the consequences of the October 2011 incident
199From 29 October 2011 to 10 May 2012, there is an absence of recorded reports of back pain, although during that period, Mr Neal attended his general practitioners on twelve occasions, all for other medical conditions. I considered Mr Neal’s account that he was hoping the condition would go away, does not explain why he would not report his alleged ongoing back pain, when he was consulting for other health ailments.
200I consider it unlikely that Mr Neal mentioned his back pain to Dr Luka prior to May 2012, but that he simply failed to record it.
201The evidence given by Mr Neal and Dr Luka as to the rapid deterioration of back pain in May 2012 was confusing.
202I considered Mr Neal’s evidence in respect of his attendance upon Ms Shifman to be entirely unreliable. I am not satisfied that he told Ms Shifman about the October 2011 incident, and that his pain had persisted since that time. If such a history had been given, there would be no basis for Ms Shifman to state that Mr Neal hurt his back approximately five weeks prior to her report dated 19 June 2012, and he did not report any major back injury in the past.
203I also considered Mr Neal’s evidence that he did not inform Dr Stockman that his symptoms had subsided within one month to be unlikely. As the only doctor to have made a written note of an incident in October (albeit that Dr Stockman obtained a history that it was in November), I consider it probable that Dr Stockman obtained this history directly from Mr Neal.
204I consider it significant that Mr Neal did not inform the specialists he was subsequently referred to, of the October 2011 incident (save for Dr Stockman) and his claim his symptoms had persisted since that time. Mr Neal’s explanation was that he had not wanted to reveal this incident as he was sensitive to his new position at Zimmer. Even if I were satisfied that was a genuine concern for Mr Neal in late 2011 and early 2012, it must have become an irrelevant consideration once his employment at Zimmer ceased. However, Mr Neal consistently failed to report this incident to the doctors whom he saw – or at least if he did report it as he claims he may have to Ms Shifman, it was not reported in any such medical reports or records. I consider Mr Neal failed to provide a credible explanation for this.
205Finally, I note that as late as May 2016, Recovre obtained a history from Mr Neal that his injury seemed to occur spontaneously while standing at a bench when he heard a pop. I consider it of significance that even at this time, Mr Neal did not report the October 2011 incident. By then there was no logical reason why Mr Neal would continue with an incomplete history.
206In closing submissions, Mr Middleton submitted that it does not accord with principles of fairness and common sense for Mr Neal, having previously prosecuted his superannuation and income protection entitlements based on a certain set of circumstances, to be permitted to now bring a claim which is based on totally inconsistent evidence. It was put that Mr Neal should not be permitted to benefit now, after having spoken with “two different voices.”[2]
[2] Barro Group Pty Ltd v Fraser [1985] VR 577 at 580
207Even if Mr Neal were to be forgiven for having “two different voices” up until the time that his employment with Zimmer ceased, he did not credibly explain why he persisted with such mistruths for several years thereafter. The longevity of such a history and the propensity of medical reports recording it, causes me to consider that it is more likely than not that Mr Neal made a prompt recovery after the incident in October 2011, and his significant and persistent exacerbation of lower back pain occurred sometime in April or May 2012.
208A further matter, relevant to Mr Neal’s account of his condition after the October 2011 incident, was his evidence that he had never contemplated making a WorkCover claim against Zimmer. It is apparent from the email chain on 4 June 2012, that Mr Neal requested such a form. It is clear no such claim was ever lodged. Instead of Mr Neal accepting that he had requested a WorkCover form, Mr Neal gave evidence that he thought this was a “typo”, or had come from someone at Zimmer. I consider this a further example of Mr Neal being unprepared to accept a logical inference – that he had requested a WorkCover form, as he had contemplated, even fleetingly, making such a claim against Zimmer. Instead, Mr Neal gave an explanation that seemed implausible on the face of the document before him.
Conclusions in respect of Mr Neal’s credibility
209I consider the above examples demonstrate that Mr Neal was neither a reliable nor a creditworthy witness. There was a litany of inconsistencies which made it difficult to know the true account of what occurred in October 2011 and thereafter.
210Mr Neal had an established pattern of behaviour of being selective in the history he told doctors, or disclosed on forms, even when required to declare the truth. Such failures are detailed above and I consider, collectively, they reflect poorly on Mr Neal’s credibility.
211Even if I accepted that Mr Neal made a calculated decision to withhold information when seeing medico-legal doctors for the purpose of his insurance claims, this cannot explain why he appears to have given an incomplete history to treating practitioners, such as Ms Shifman, Dr Al Humrany and Dr Stockman.
212However, of most significance to my assessment of his credibility as a witness, is the disingenuous and unreliable evidence, which, at times, he gave under oath. The following are the matters of greatest concern, which I consider impeached his overall credibility:
(a) the words “educate staff” were not his handwriting, despite him agreeing he had written the other words surrounding this phrase, and he had signed the form. Given this was the first written account of the October 2011 incident, I considered his evidence in respect of this was very damaging to his credit;
(b) the request for “workcover claim forms” was a “typo” or response to Zimmer’s request;
(c) Ms Shifman was told of the October 2011 incident but failed to record it;
(d) the pre-employment questionnaire with Zimmer was only concerned with the past seven years.
213Considered collectively, these examples, together with the parts of his evidence outlined above, cause me to reject Mr Neal’s evidence, unless it was provided against interest or was corroborated by a contemporaneous document or another witness.
214There is no such corroboration as to how the October 2011 incident occurred. Sadly, his son, Kyle, whom he was living with at the time, is now deceased. Mr Neal said that he is longer friends with Susan, the person who he said gave him a massage on the weekend after the incident and before he saw Dr Aboud.
215There is a void of evidence regarding the circumstances of this incident, from the time it occurred through until September 2016, a period of almost five years. When it was finally recorded in writing, the report of the October 2011 incident is inconsistent with the account now claimed.
216Mr Neal brings this claim and bears the onus of proof. Having considered all of the evidence, on balance, I am not satisfied that Mr Neal was injured in the way he alleges occurred on 21 October 2011. Without knowing what happened, it is impossible for me to assess whether the defendant was either negligent or in breach of its statutory duty. Therefore, I must dismiss his claim.
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