O'Connor v Maribyrnong City Council and VWA
[2010] VCC 1987
•21 December 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
GENERAL DIVISION
Case No. CI-10-00111
| PETER JOHN O’CONNOR | Plaintiff |
| v | |
| MARIBYRNONG CITY COUNCIL | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE O’NEILL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 26 and 27 October 2010 |
| DATE OF JUDGMENT: | 21 December 2010 |
| CASE MAY BE CITED AS: | O’Connor v Maribyrnong City Council & VWA |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1987 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Section 134AB Accident Compensation Act 1985 – injury occurring in the course of employment as garbage-truck driver – aggregation of injury to cervical and lumbar spines – aggregation of various incidents giving rise to injury – whether consequences “very considerable”.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G A Lewis SC with | Arnold Thomas & Becker |
| Ms J M Forbes | ||
| For the Defendants | Mr A W Middleton | Herbert Geer |
| HIS HONOUR: |
Preliminary
1 The plaintiff suffered injury to his lumbar and cervical spines in the course of his employment as a garbage-truck driver with the first defendant over a number of years. In particular, he suffered incidents in July 2001 to his cervical spine, and a further incident in October 2001 when he was required to lift and move heavy rubbish bins, as a result of which he suffered injury to his lower spine.
2 He remained working for the defendant on lighter duties for a period, and subsequently returned to work as a garbage-truck driver for other employers. He finally ceased work in February 2009.
3 He claims some recreational interests and in particular his capacity for employment has been affected by his injuries.
4 This is an application for leave to bring proceedings pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injuries suffered in the course of the plaintiff’s employment from October 1999 until 2004, and in particular incidents to the plaintiff’s cervical spine on 23 July 2001, and to his lower spine on 25 October 2001.
5 Mr Lewis, on behalf of the plaintiff, identified the body function said to be lost or impaired as the spine. The application is thus brought under sub-s.(a) of the definition of “serious injury” contained in s.134AB(37) of the Act, and leave is sought in respect of both pain and suffering and loss of earning capacity.
6 In order to succeed, the plaintiff must prove, the onus being upon him, that the consequences emanating from the loss or impairment of the spine are at least “very considerable” and more than “significant” or “marked”. I must consider the consequences to this particular plaintiff, viewed objectively, arising from injury. I must also compare the impairment arising from injury in this application with other cases in the range of impairments or losses of body function.
7 Further, in order to be satisfied that the plaintiff has suffered a loss of earning capacity, he must prove, as prescribed by s.134AB(38)(e)(i) and s.134AB(38)(f), that, as a result of injury, he has suffered a loss of earning capacity of 40 per cent or more, when a comparison is made between his without injury earnings in that part of the three-year period before and after injury as best reflects his earning capacity, and his earning capacity at the present time from suitable employment.
8 The plaintiff was the only witness called to give evidence and be cross- examined. In addition, affidavits of the plaintiff, various medical and radiological reports, income tax returns, WorkCover certificates, and extracts from clinical notes, were tendered into evidence. I have read all the tendered material.
Relevant Background
9 The plaintiff is now forty-four years of age. He has a de facto wife and three children. He left school in Year 9. He has poor reading and writing skills. He has driven garbage trucks since he was about 18. Initially he drove for the Broadmeadows Council. Over the period from 1995 to 1997 he commenced his own business mowing lawns. The business failed. He worked for a labour-hire company driving a garbage truck for various municipal councils, and then in 1997 commenced work for the first defendant on a casual basis. Initially, the work involved a three-person team working on garbage trucks, but this subsequently changed such that he was the only person driving the truck, and operating an hydraulic hoist on the side of the truck, lifting bins. He would often have to get out of the truck, wheel heavy bins to the side, and then operate the hydraulic lift. This was particularly so in streets where cars were parked against the curb.
10 His employment became permanent in 1999.
11 He had a range of incidents affecting in particular his lower back over the years. In approximately 1986 he “pulled a muscle” in his back and was off work for approximately two weeks. He saw a Dr Singh. He returned to work without difficulty.
12 In approximately April 1998 he saw his then general practitioner, Dr Samararatna, of the Goonawarra Medical Centre in Sunbury. An x-ray of his low-back was taken, and subsequently a CT scan[1] showed a small central disc herniation indenting the anterior part of the thecal sac. Nerve roots were not affected. There was moderate facet-joint hypertrophy. There was further minor disc herniation at L5-S1. The clinical note of the general practitioner[2] states the plaintiff was employed as a garbage collector and his job involved lifting. Dr Samararatna diagnosed a soft-tissue injury. The plaintiff continued to see his general practitioner on a number of occasions in May 1998. He undertook some physiotherapy. Subsequently, he was able to continue his employment.
[1] Defendant’s Court Book (“DCB”) 161
[2] Exhibit 6
13 In March 1999 he fell off the truck and “jarred his back”. He was prescribed Panadeine Forte.
14 Further, on 18 October 2000 he attended Dr Samararatna complaining of sore lower back with bilateral muscle spasm after “jarring” his back. He attended a number of days later with continuing back pain. Muscle spasm was noted, and the doctor prescribed diazepam and Panadeine Forte. He was referred to an osteopath, Lana Peters.
15 In cross-examination[3] he agreed that he had never been pain-free in relation to his lumbar spine since about 1998.
[3] T 59, L19
16 In terms of his recreational pursuits, he was a runner for the Diggers Rest Football Club, which he claims he had to cease as a result of injury.
The Injuries and their Consequences
17 On 23 July 2001, the plaintiff went to see Dr Samararatna complaining of pain in his neck. According to a WorkCover claim form[4] he says on that day he strained a neck muscle when, in the course of his duties driving a garbage truck, he was “reaching for bin” and “rubbish bin fell over”. Dr Samararatna prescribed Panadeine Forte and referred him to a chiropractor. He was off work for approximately one week[5] and saw his general practitioner each month or so.
[4] Plaintiff’s Court Book (PCB) 100. Note the claim was accepted by the WorkCover insurer.
[5] WorkCover certificates PCB 123–128
18 A CT scan of 21 September 2001[6] revealed little abnormality.
[6] PCB 93
19 On 25 October 2001, the plaintiff went to see Dr Samararatna complaining of low-back pain, with radiation to the hips. An incident report was completed and lodged with the employer[7] which described the injury as occurring “getting in and out of the truck”. A WorkCover claim form was completed and lodged[8] and the cause was again described as “getting in and out of the truck”. As with the July incident, the claim was accepted. An x-ray of the lumbar spine taken 1 November showed some disc narrowing and spondylosis between L4- S1.[9] The plaintiff was off work for several days,[10] then resumed on alternative duties before being certified to return to normal duties on 19 November 2001.[11]
[7] PCB 106
[8] PCB 103–105
[9] PCB 31
[10] PCB 129–130
[11] PCB 133
20 Another doctor at the Goonawarra Clinic referred the plaintiff for a further CT scan of his lumbar spine on 11 December 2001.[12] The scan noted a large left paracentral dorsal disc extrusion. This compromised the L5 lateral recess, and was said to be likely to irritate the exiting L5 nerve root. The plaintiff had chiropractic treatment to his lower back.
[12] PCB 92
21 In his affidavit in support of the application,[13] the plaintiff described an additional episode causing “very significant injury”. He says he was pulling heavy garbage bins left by a Chinese restaurant in Hopkins Street, Footscray. The affidavit records that the bin in his left hand began to tip, and, in attempting to arrest its fall, he twisted his neck and hurt his back and right shoulder. In evidence, he said in fact it was his right hand which was holding the bin that tipped. It is unclear whether this incident is the one referred to of 23 July 2001, or some other incident.
[13] PCB 21
22 Aside from the incidents referred to, the plaintiff complained that the bins which he was required to manoeuvre to the side of the truck were heavy and awkward.
23 After his return to work, at some point, the plaintiff says he was unable to continue in his former duties, and instead he assumed lighter duties and would drive around the streets in a utility, checking that the garbage bins had been returned to their correct position. Eventually, in February 2004, his employment was terminated, as those duties were no longer available.
24 The plaintiff was referred by his general practitioner to Mr Craig Mills, orthopaedic surgeon, and saw him on 12 February 2002. His complaint at the time was of neck pain, caused by, he said, “moving bins at work when he had twisted his body and neck”. He also complained of shoulder pain and dysaesthesia into his hands. At the time he was seen by Mr Mills he was working seven-and-a-half hours per day driving the garbage truck. He also complained of pain at the L4-5 disc in his lower spine.
25 Mr Mills arranged cervical x-rays, which were normal.[14] He further arranged an MRI of the cervical spine[15] which showed desiccation of all intervertebral cervical discs with minor broad-based disc bulge at C5-6 without neural compromise. He said this was consistent with a twisting injury aggravating some age-related degenerative disease of the cervical spine.
[14] PCB 41
[15] PCB 94
26 When seen again on 19 March 2002, the plaintiff said he was substantially improved.[16] Mr Mills approved lighter employment duties involving the delivery of empty wheelie-bins in a light utility. Mr Mills concluded:[17]
“In summary, Mr O’Connor is a man who reported neck and shoulder pain after a twisting injury at work as detailed. He has radiographic evidence of a degenerative condition of the cervical spine involving the levels as outlined in the MRI report. He has evidence of lumbar spondylosis at the two lowest levels, as detailed in the CT scan report. He has ultrasound and clinical evidence of some tendon damage to the supraspinatus tendon in the shoulder. Attribution of cause to these areas certainly involves a degenerative component. However, on top of this, he has suffered an aggravation as a result of a twisting injury to his neck and shoulder at work. ...”
[16] PCB 42
[17] PCB 43
27 Mr Mills was unable to attribute the lumbar problems to work, although he was told there had been an aggravation. He considered the plaintiff was fit for light duties but would have difficulties in the long term with heavy manual work. Mr Mills suggested a pain management clinic. The plaintiff did not consult Mr Mills again.
28 From May 2002, the plaintiff was treated by Mr Andrew Hall, physiotherapist, on a number of occasions. The treatment resumed in 2004.
29 In January 2003, the plaintiff undertook a pain-management program at Cedar Court at Broadmeadows. He attended only five out of twelve sessions over a 6-week period.
30 In 2003, the plaintiff also saw Dr Allan Zimet, a pain-management specialist. There is no report from this doctor.
31 The plaintiff was referred to Mr Paul D’Urso, neurosurgeon, and saw him on 15 August 2003. Mr D’Urso received a history of two years of low-back pain relating to picking up a fallen rubbish bin. The pain developed in the plaintiff’s low back, radiating into the buttock and leg. He complained of paraesthesia to the heels. Mr D’Urso described a CT scan of the cervical spine of 25 July 2003[18] as normal. He arranged a CT scan of the lumbar spine which he said showed disc degeneration at L5-S1. He arranged an MRI scan of 24 September 2003[19] which showed a broad-based disc bulge at L4-5 with a central annular fissure. There was a further broad-based disc prolapse at L5- S1 without neural impingement.
[18] DCB 162
[19] PCB 96–97
32 Mr D’Urso continued to review the plaintiff through 2003. He considered the L4-5 disc prolapse as significant, and causing L5 nerve-root compromise. However, he said that that prolapse had resolved, but had left some persistent abnormality and possible neuropathic symptoms to the left L5 nerve root. He said there was a relationship between the onset of symptoms in the lower spine and the L4-5 disc prolapse, and that work-related injury had contributed to that prolapse, superimposed on age-related degenerative change. He did not recommend any surgical intervention, and thought that the degenerative changes were mild. He thought progress would be satisfactory. The plaintiff has not returned to see Mr D’Urso.
33 Until the end of 2003 the plaintiff was treated by Dr Samararatna and other doctors at the Goonawarra Medical Centre. As from January 2004, he came under the care of Dr Lupton of the Family Medical Centre at Sunbury.[20] Dr Lupton received a history of:
“Slow onset (over weeks) of neck, back and shoulder pains almost three years ago. Started while at work. Saw a chiropractor and a GP. Was put off work and has not been back since. … Currently working three hours a day, three days a week, counting bins.”
[20] PCB 55
34 The plaintiff complained to Dr Lupton of pain in his forearms and a swollen feeling in the fingers of both hands. He further complained of heel, hip and head pains, stiffness in the neck and constant back ache. Dr Lupton continued to see the plaintiff on a number of occasions in 2004 but the last consultation appears to be in June 2004 when it was noted that Dr Gill (another doctor at the clinic) had cleared the plaintiff to return to full work. He has not been treated by doctors of that clinic since that time. Rather his treatment at the clinic appears to have been undertaken by Mr Andrew Hall, the physiotherapist the plaintiff had earlier seen. Mr Hall obtained a history:[21]
“ … Mr O’Connor first injured himself in mid 2001. He was driving a garbage truck. He got out to manually shift a bin. One of the bins tipped. He went to catch the bin. He felt an intense pull in the right side of his neck. He kept working through that shift. He was seen by (doctors) at Goonawarra Medical Centre in Sunbury. He was referred for chiropractic treatment … .”
[21] PCB 50
35 Mr Hall’s report notes pain progressed to the right and left shoulders, upper thoracic and lower lumbar spine.
36 In March 2009, Mr Hall described the plaintiff as suffering “… a persistent pain
scenario for which he has sought numerous specialist interventions, and conservative interventions, none of which have resulted in a sustainable
recovery”. At that time he considered the plaintiff did not have a current work capacity, although he thought the exacerbation for which he was treating the plaintiff at that time would settle in six weeks or so. He recommended an exercise program, including regular pool exercise.
37 The treatment with Mr Hall has continued through to the present time.
38 After he was terminated from work with the first defendant, the plaintiff worked for Larry’s Labour Hire and Four Seasons Waste driving a garbage truck and performing the same duties as he had been doing in 2001. He worked for Larry’s Labour Hire over the years 2004 to 2009 on a casual basis. At times he was working 12 hours per day, five days per week. He also worked over this period for the Moreland Council undertaking work as a garbage truck driver. The work with the Moreland Council continued until February 2009. He claims over this period that he was required to have a lot of time off and used up all his sick leave entitlement. In February 2009 he was put off from work with the Moreland Council and has not worked since. Over the period from June 2008 to February 2009, when he worked for the Moreland Council, he took 12 days off work as a result of back pain. In addition, over the period from 3 February 2009 to 19 February 2009 he took 13 days unpaid sick leave.[22]
[22] Exhibit C
39 In cross-examination[23] the plaintiff accepted that when he ceased work in February 2009 it was because his contract was not renewed. He accepted that had he been offered a renewal of the contract, he would have “tried” to do the work. He said he would have a “crack at it” but did not think he would succeed.[24] After February 2009 he attempted to get a job driving a concrete truck.[25] He also applied for a number of jobs and had interviews.[26] He states he does not think he would be able to do heavy truck driving work again.
[23] T 68, L16
[24] T 69, L18
[25] T 68, L19
[26] PCB 25
40 The plaintiff’s earnings over the relevant period fluctuate. For the year ended June 2001 he earned $42,494 gross. Thereafter, he earned varying amounts and in the year 2009 earned $37,244.[27]
[27] PCB 99
41 In August 2006 the plaintiff attended the Royal Melbourne Hospital (“RMH”) having fallen on wet tiles at his home. The relevant entries in the clinical notes of the RMH[28] indicate on 20 August 2006 the plaintiff fell on wet tiles at his home and complained of pain in his right hip and right leg. He suffered a fracture to the acetabulum and required hospitalisation over a week or so. There is little if any reference in the clinical notes to any aggravation of his lower back condition.
[28] Exhibit 4
42 On 10 October 2006, the plaintiff was again admitted in relation to a fall at home and it was considered that there may have been some displacement of the earlier fracture.
43 In September 2008, the plaintiff attended the Sunshine Hospital. The records of that hospital[29] indicate that on 22 September 2008 he was admitted with a presenting history: “Standing at football all day – home – tried to get out of chair and fell”. According to the records, the plaintiff was heavily intoxicated at the time, and complained of pain to his lower back. The episode appears transitory and any aggravation of his lower back pain was short term.
[29] Exhibit 3
44 In September 2009, the plaintiff suffered a fracture to his left foot having dropped a trailer upon it. The foot was in plaster over six to eight weeks and he was unable to work over that period.
45 At the present time, the plaintiff complains that his neck remains stiff and sore. The pain in his neck comes and goes and he claims that it is worse in cold weather. He also has pain in his right shoulder.
46 His worst pain is in his lower spine which he says he has most of the time. The pain can shoot down into his hips and both legs. He claims to have pins and needles below the knees and into the heels. He is unable to stand or sit for any lengthy period of time. Walking on uneven ground is difficult. He takes Panadeine Forte regularly as prescribed by his general practitioner. He claims his sleep is affected. He has become depressed and psychologically upset and considered suicide on several occasions.
47 The plaintiff still attends the Family Medical Centre at Sunbury although his primary treatment is with Mr Hall, the physiotherapy. He has been prescribed fentanyl patches.[30]
[30] PCB 53-54
Consultant Medical Opinion
48 Aside from the opinion of the various treating practitioners, the plaintiff has been examined by a number of consultant doctors. He was referred by his solicitors to Dr Helen Sutcliffe, occupational physician, in July 2010.[31] She received a history that the plaintiff had the sudden onset of neck, right shoulder and lower back pain when he moved two large bins in 2001. The plaintiff complained to Dr Sutcliffe of persisting lower back pain radiating into both buttocks. He also complained of neck pain radiating into the right shoulder and pins and needles into the hands. The back pain radiated into the legs and heels. Dr Sutcliffe considered the plaintiff had sustained an aggravation of disc degeneration and spondylosis as a result of an incident in his work place in 2001. She said:[32]
“He has persisting aggravation of the lumbar disc degeneration. He sustained extrusion of L4-5 disc and onset of L5 nerve root irritation as a result of the injury. He has continued with back and bilateral leg pain since the time of the injury and also provides a history of persisting neck pain and shoulder pain. From the investigations dating from 2001 and 2002 it appears that the disc herniation at L4-5 as a result of the injury has resolved but the pain continued to date, raising the probability of the presence of neuropathic pain present in the symptoms persisting. I note the CT of the lumbar spine in 1998 indicated a small disc herniation but this was considerable (sic) increased with nerve root impingement as a result in the investigations dating from 2001/2002.”
[31] PCB 61-73
[32] PCB 70
49 Dr Sutcliffe considered that the plaintiff had no capacity for employment as a garbage truck driver and that taking into account his education, medical condition, age and background and past work experience, he had no capacity for employment currently and indefinitely.
50 The plaintiff was examined by Dr Michael Epstein, psychiatrist, in October 2010. He obtained the following history[33]:
“The injury that led to this claim occurred on 25 October 2001 whilst he was shifting heavy bins that he could not reach with the loader arm. He said that one of the bins began falling and he attempted to catch the falling bin and felt severe pain in the right side of his neck. He completed his shift and reported the injury. He ceased work and remained off work for 18 months.”
[33] PCB 79
51 Dr Epstein considered the plaintiff, in addition to the neck injury in October 2001, had developed a Pain Disorder with pain to various parts of his body.
52 The plaintiff was examined by Mr Russell Miller, orthopaedic surgeon, in October 2010.[34] Mr Miller obtained a history of two incidents of 23 July 2001 and 25 October 2001. In the first accident he described jumping from the step of his truck and jarring his back. As a result he had no time off work and his symptoms settled. In the second incident he described pulling two bins when one fell off into the gutter causing him to wrench his arm and back. He felt pain in his neck, shoulder and back as a result. He remained off work for approximately two years and then his employment was terminated. Mr Miller diagnosed the plaintiff had suffered a musculo-ligamentous strain of his cervical spine with aggravation of underlying degenerative disease. He thought the prognosis was fair. In addition, the plaintiff had suffered a musculo-ligamentous strain to the lumbar spine with aggravation of degenerative disease at L4-5 and L5-S1. Mr Miller noted a poor response to conservative measures and that surgery was unlikely. He said the prognosis was fair to poor. He thought that the underlying condition in the plaintiff’s neck and lower back had been aggravated, in particular by the incident of October 2001. He considered the plaintiff would have long-term work restrictions, including no repeated bending, lifting of weights of more than five kilograms and the ability to shift posture regularly. He also noted the plaintiff had problems with his right shoulder. He thought any work would be problematic.
[34] PCB 85
53 Subsequently, Mr Miller was provided with a copy of a report from Dr Samararatna of 4 June 2008 which described the episodes of pain in 1998 and 1999, and again in October 2000. On the basis that the plaintiff had been performing significant physical work, and coping with those duties prior to the event of October 2001, he said his opinion was unaltered.
54 On behalf of the defendant, the plaintiff was examined by Dr Malcolm Brown, occupational physician, in June 2003.[35] He obtained a history that the plaintiff had suffered gradual onset of lower back pain two to three years before examination. He considered the plaintiff had lower back pain from a disc protrusion at L4-5 as evidenced in the CT scan of 11 December 2001. He said the plaintiff did not have true symptoms of sciatica although there may be some compromise of the left L5 nerve root. He considered the plaintiff’s job as a garbage truck driver did significantly contribute to his condition. At that time, he thought the plaintiff was able to undertake his normal work duties.
[35] DCB 163-167
55 The plaintiff was examined by Dr David Fish, occupational physician, in October 2008.[36] The plaintiff described two injuries: the first on 23 July 2001 and the second on 25 October 2001. The first incident concerned pulling two bins when one became entangled and twisted sideways, as a result of which he suffered pain in his right shoulder, right side of the neck and lower back. He had a few weeks off work and had physiotherapy. In the second incident, Dr Fish read to the plaintiff a claim form in which it was alleged he was lifting 20 kilogram bags at the time of which he suffered injury to his back. Dr Fish noted that he was confused about the sequence of events and what had occurred. He said the plaintiff was difficult to examine because of pain behaviour. He further commented that the CT scan taken in December 2001 was unchanged from the 1998 film. He concluded that the plaintiff presented with widespread pain to the neck, both shoulders, upper arms and lower back with paresthesia into both hands and feet. He thought there was a degree of cervical spondylosis although it was unclear whether that had been aggravated in either of the incidents. In the lumbar spine he considered there was evidence of lumbar disc degeneration with referred symptoms.
[36] DCB 179-183
56 The plaintiff was examined by Mr Peter Battlay, surgeon, in November 2009. Mr Battlay received a history that on 23 October 2001 the plaintiff was moving bins and one overbalanced, as a result of which he jerked his neck and shoulders. He had ongoing symptoms in the neck and shoulder and later pain developed in his back. Having examined the radiology, including the films of 1998, Mr Battlay described the plaintiff as suffering degenerative changes in his neck and back and that at one stage he did have a left-sided disc extrusion at L4-5 but apparently the lesion resolved. He did not consider the plaintiff suffered true radiculopathy and that the complaint of pins and needles into the legs and arms had no physical basis. He did not consider that the plaintiff had any significant injury to his neck and shoulder and that there was little treatment to that area. He thought there was evidence of non-physical symptoms. Generally he considered the plaintiff’s symptoms those of aging rather than anything related to workplace incidents. He considered that such incidents may have provided some temporary aggravation of the underlying disease but that aggravation had resolved.
57 The plaintiff was examined by Dr David Barton, occupational physician, in December 2009.[37] Dr Barton received a history of gradually increasing lower back pain related to the general nature of his work as a council garbage truck driver. In mid 2001 the plaintiff said he had developed neck and right shoulder symptoms, again relating to the general nature of his work. He further described a car accident several years before the examination where the plaintiff had sustained a fractured pelvis which was treated surgically with a plate and screws. Dr Barton described the plaintiff as suffering a fairly long history of initially lower back symptoms which were related to the general nature of his work. He also noted the plaintiff had developed neck and shoulder problems. He considered the plaintiff had a significant degree of functional overlay as evidenced by dramatic presentation, widespread area of tenderness and discrepancy on physical examination. He considered the sensory changes non-anatomical. He said there may have been some exacerbation in the plaintiff’s underlying condition by his work activities, but such exacerbations had ceased. He did not believe there had been any permanent aggravation of the neck or back conditions. He thought it was unlikely the plaintiff would require any further treatment. He considered the plaintiff would have the capacity to return to garbage truck driving.
[37] DCB 191-196
58 Finally, the plaintiff was examined by Dr Michael Baynes, occupational physician, in April 2009.[38] Dr Baynes noted the plaintiff was a vague historian but said that there had been the progressive development of back pain in 2001 associated with neck and shoulder pain. The plaintiff said that this was related to “pulling bins in early 2001”. There was an injury in October 2001 with chiropractic treatment and time off work. The plaintiff complained of suffering ongoing lower back and neck pain thereafter. He considered the plaintiff was suffering a chronic pain syndrome associated with chronic lower back pain, neck pain and right shoulder pain. This he said was in association with age-related degenerative change affecting the lumbar spine and facet joints as well as degenerative change in the cervical spine. He considered there was no objective evidence of radiculopathy. There was evidence of abnormal illness behaviour. Dr Baynes accepted that the plaintiff’s work was a contributing factor to the aggravation of the pre-existing degenerative change. Any work-related aggravation by the time Dr Baynes saw the plaintiff was settled. Any ongoing pain was related to underlying degenerative change. In addition, the plaintiff’s abnormal illness behaviour made it difficult to determine his real capacity for work but that given the plaintiff was working in normal duties until February 2009, he had the capacity for light work providing he lifted no greater than ten kilograms and there was no lifting from below knee level or above shoulder height. The plaintiff should be in a position where he could alter his posture on a regular basis.
[38] DCB 197-201
Conclusions from the Medical Evidence
59 I am satisfied from the evidence that from approximately April 1998 the plaintiff commenced to suffer pain in his lower back and that such pain has continued through to the present time. There is evidence of disc disruption from the CT scan of 8 May 1998.[39] There was an incident when the plaintiff jarred his back in March 1999 and a further episode in October 2000. He had physiotherapy, some prescription of Panadeine Forte and occasional attendances upon his doctor for these problems.
[39] DCB 161
60 It is clear over this period the plaintiff was suffering the symptoms of an underlying degenerative condition in his lower spine. Nonetheless, with some brief periods away from work he was able to undertake his usual duties as the driver of a waste truck. The plaintiff admitted he had never been pain free in his lumbar spine since 1998.
61 A significant difficulty in this application is determining what injuries the plaintiff suffered to what parts of his body as a result of his employment, in particular in 2001. In evidence, I found the plaintiff quite unreliable as he was unable to recall the specific incidents and the injuries suffered.
62 The various different versions of incidents and injuries are as follows:
•
The plaintiff developed problems in his neck and lower back as he was required to manoeuvre heavy bins in the course of his employment after 20 October 1999 (plaintiff’s affidavit, PCB 20).
•
Injury to his neck on 23 July 2001 when a rubbish bin fell over as he was reaching for it (worker’s claim form, PCB 100-101; entry in clinical notes of general practitioner of 23 July 2001 - Exhibit 6; report of Mr Hall, PCB 50).
•
Injury to neck and back when pulling two bins, one of which fell over, near a Chinese restaurant in Hopkins Street, Footscray (plaintiff’s affidavit at PCB 21).
•
Injury to lower spine of 25 October 2001 as a result of “getting in and out of truck” (worker’s claim form, PCB 103-104; incident report PCB 106; entry in clinical notes of general practitioner of 30 October 2001, Exhibit 6).
•
Acute onset of back pain on 22 October 2001 (clinical notes of general practitioner, 22 October 2001, Exhibit 6).
•
The onset of neck and right shoulder problems in late 2000 relating to moving bins at work (referral and history to Mr Mills in February 2002, PCB 37-38).
•
Lower back pain dating from 27 April 1998 relating to plaintiff’s employment (Dr Samararatna report 4 June 2008, PCB 48).
•
Injury on 18 October 2000 when plaintiff jarred his back working as a truck driver (history to Dr Samararatna, PCB 48).
•
Exacerbation of pain on 23 October 2000 as a result of a “trip” the day before (report of Dr Samararatna, PCB 48; clinical notes 23 October 2000, Exhibit 6).
•
Slow onset (over weeks) of neck, back and shoulder pain in approximately 2006 while at work (report of Dr Lupton, PCB 55).
•
Lower back pain and sciatica as a result of getting out of a truck and picking up a falling rubbish bin in approximately 2001 (report of Mr D’Urso dated 1 April 2009, PCB 58).
•
Onset of neck, right shoulder and lower back pain when the plaintiff moved two large bins in 2001 (report of Dr Sutcliffe, PCB 63).
63 In summary, it is difficult to note precisely what injury the plaintiff suffered and the circumstances giving rise to injury.
64 In any event, the incidents or work practices which are said to have aggravated the plaintiff’s condition, both to his neck and lower spine, have occurred in the course of his employment with the first defendant, albeit commencing in 1998. Aside from incidents involving slipping on tiles in 2006 and injuring his pelvis which may or may not have aggravated his underlying lower spinal condition, the other incidents, or course of employment activities are work-related.
65 A considerable proportion of the medical opinion, particularly from the plaintiff’s camp, is to the effect that at the present time the plaintiff would be unable to resume his previous employment as a garbage truck driver given that it involves climbing onto and off a vehicle, and in particular manoeuvring heavy bins onto the hydraulic lift. I am, however, satisfied that on the balance of medical opinion, and in particular given the plaintiff’s work history up until 2009, that he has the capacity for light or modified employment.
66 However, I prefer the opinion of those doctors who have examined the plaintiff on behalf of the defendants, in particular Dr Fish, Dr Barton and Mr Battlay, that the plaintiff has a number of non physical symptoms. Also, those doctors say the plaintiff’s present condition is more as a result of ageing and the degenerative process in the cervical and lumbar spine than as a result of any one or more injuries. Those views coincide with the plaintiff’s history of never being pain free from 1998 and the general, vague and uncertain description by the plaintiff in the histories to treating doctors and contemporaneous claim forms of the various incidents. While the plaintiff does have a current restricted work capacity, it is more as a result of the underlying spondylosis than any identifiable workplace incident.
The Cervical and Lumbar Spines as the One Body Function
67 I am satisfied that the degeneration in the plaintiff’s cervical and lumbar spines may be regarded as the one body function. The spine is generally divided into three areas – cervical, thoracic and lumbar. However, it is difficult to separate out the functions of these three different areas of the spine. In the “AMA Guides to the Evaluation of Permanent Impairment”[40] the following is said at paragraph 3.3B:
“It is difficult to separate the cervical, thoracic, lumbar and sacral spine regions functionally, because the signs related to the different regions commonly overlap. Upper lumbar spine impairments tend to behave more like those of the thoracic region than those of the lower lumbar region, and the involved nerve plexuses expand the effects from the different levels. For instance, the brachial plexus is made up of nerve trunks from both the cervical and the upper thoracic regions, and the sciatic nerve includes components from both the lower lumbar and the sacral regions. With the Injury or DRE Model, the spine regions are termed the cervicothoracic, thoracolumbar, and lumbosacral regions. With this model, the cervicothoracic spine is considered to comprise 35 per cent of total body function, the thoracolumbar spine 20 per cent and the lumbosacral spine 75 per cent. Under the Range of Motion or Functional Model, the main regions are called cervical thoracic and lumbar regions. With that model the cervical spine is considered to be involved with 80 per cent of the individual’s functioning, the thoracic spine is involved with 40 per cent and the lumbosacral spine is involved with 90 per cent. However, the structural, neurologic, vascular and other activities mediated by the spine regions overlap and are difficult to separate …”
[40] ‘American Medical Association Guides to the Evaluation of Permanent Impairment’ (4th Edition).
68 Further, various decisions of judges of this court have concluded that the cervical and lumbar spines represent the one body function.[41]
[41] Sagaris v Otis Building Technologies (Judge Wodak, 29 November 2001); Perry v Duvoison & Anor. (Judge Wodak, 22 June 1995); Sulicv Ausmalt Sheet Metal (Judge Higgins, 21 December 2007); Sammut v P&O Ports Limited & Anor. (Judge Lewitan, 21 March 2002); Karavoski v Fiora Distributors (Judge Dyett, 9 November 2007).
69 In these circumstances, I am satisfied that it is appropriate to regard the cervical and lumbar spines as the one body function.
Acceptance of Claims by the WorkCover Insurer
70 It is put by Mr Lewis that claims were made by the plaintiff in respect of the incident of 23 July 2001[42] and 25 October 2001.[43] Both claims were accepted by the WorkCover insurer. He says that the acceptance of claims constitutes admissions, firstly, that the injuries described occurred on those dates and, secondly, that they occurred in the course of employment. He relied upon the statements by Ashley JA in Ansett Australia Limited & Anor v Taylor.[44]
[42] PCB 100-102
[43] PCB 103-105
[44] [2006] VSCA 171 at paragraph 40 and following.
71 I believe that the acceptance of those claims by the insurer does constitute an admission as alleged. However, these incidents must be seen as one of a number of incidents giving rise to aggravation to the degenerative condition in the plaintiff’s cervical and lumbar spines. The argument put by the defendant is not that these incidents did not exist, but rather they are one of a series of events which the plaintiff is not entitled to aggregate.
The Aggregation of the Various Work-Related Incidents and Course of
Employment Activities72 I have earlier made reference to the various incidents and work-related activities which have caused an aggravation of the plaintiff’s underlying condition to his cervical and lumbar spines. Mr Middleton argues that this is not a typical “course of employment” scenario where a person working, for example, on a production line undertakes repetitive movements of a part of his or her body, and suffers injury over a period of time. Rather, he argues, it is a series of unrelated incidents, the consequences of which cannot be aggregated. Each incident, or in the case of getting in and out of the truck and turning his head, each work activity, would, at trial, require separate consideration as to whether the employer had been negligent.
73 Further, he relies on the statements in Lu v Mediterranean Shoes Pty Ltd & Ors.[45] In that proceeding, the worker suffered injury to his right elbow as a result of repetitive and forceful use of his hands over a period of time. In addition, he suffered an injury to his right shoulder in the area close to his neck as a result of an incident when a two kilogram weight fell upon that shoulder. The Court of Appeal found there could not be an aggregation of the two injuries.
[45] (2000) 1 VR 511
74 Buchanan JA stated, at paragraph 3:
“I think that the identification of a body function for the purpose of determining the application of para(a) of the definition of “serious injury” in s135A(19) of the Act depends only upon the existence of impairment or loss of a physical function, and the definition is not limited to the function of that part of the body directly affected by an injury. Thus I consider that an injured shoulder and an injured elbow can properly be regarded as resulting in impairment or loss of the body function of an arm.
It is another question, however, whether an injury to a shoulder and an injury to an elbow can be aggregated. I agree with Chernov JA that injuries can only be aggregated if they are the result of one event or incident.”
75 Chernov JA considered the aggregation of injuries and said:[46]
“In my view … the two injuries in question impaired two separate body functions, namely, the plaintiff's right shoulder area and his right elbow respectively. Consequently, they cannot be relevantly aggregated. …”
Further:[47]
“Since the applicant for leave can only recover damages in respect of an injury that was caused by a relevant incident (for which the proposed defendant is relevantly responsible) it is only in respect of that injury, namely, the injury which has a causal nexus with the relevant incident, that the injured worker can bring a proceeding to recover damages and it is that injury that must be shown to be a “serious injury”. …
No relevant difficulty arises where leave is sought in respect of one workplace injury which is said to have arisen out of one incident, causing impairment to the one body function. In those circumstances, the applicant must demonstrate that that injury is a “serious” one. But where leave is sought in respect of two or more workplace injuries, whether the applicant must establish that each is a “serious injury” or whether they can be looked at together to see if, in combination, they satisfy the requirement of the definition will depend on whether they all affect the one body function and on whether they arise out of the same relevant incident. … Thus, if several workplace injuries have caused impairments to several body functions, those impairments cannot be relevantly aggregated. But where the injuries impair the one body function and have arisen out of the one incident they may be relevantly aggregated for the purpose of determining if the impairment of that body function is serious and long term.
… two consecutive workplace injuries (neither of which is a “serious injury”) that have arisen from discrete incidents notwithstanding that they impair the one body function. But because the definition of “injury” includes aggravation of a pre-existing injury, it is permissible to analyse the impairment caused by two such injuries for the purpose of seeing if the second injury aggravated the first, and, if it did, whether the resulting additional impairment, amounts to a “serious injury”.”
[46] Paragraph 23
[47] Paragraph 25
76 In Lu the Court was satisfied that the plaintiff had suffered injury to two separate body functions which could not be aggregated.
77 Shortly before the decision in Lu, the Court of Appeal in RJ Gilbertsons Pty Ltd v Skorsis[48] said:[49]
“It was not contended on this appeal that the aggravation caused by the work performed by the respondent between 1993 and 1995 could not be a "serious injury" because the 1991 injury brought about a serious long- term impairment or loss of a body function, and it seems to me that separate injuries can result in one “serious injury”. The definition of “serious injury” in s135A(19)(a) describes the consequences of injury rather than injury itself. On the other hand, “injury” in s135B is simply ‘any physical or mental injury ...’ Accordingly, I am inclined to think that the injury in respect of which suit was not barred by the provisions of s135B could be a “serious injury” because it was a cause of serious long-term impairment or loss of a body function, notwithstanding that an earlier injury was also a cause of the same impairment or loss. Just as in my opinion the 1991 injury was serious even though another injury or aggravation of an existing arthritic condition was needed to produce impairment or loss of a body function, so the later aggravation may have been serious although it would not have caused impairment or loss of a body function but for the occurrence of the 1991 injury.”
[48] [2000] VSCA 51
[49] Paragraph 27
78 However, the Court, in Skorsis, was considering the aggravation of an injury and whether or not a “serious injury” could exist to the one body function at two separate points in time, that is, when the original injury occurred and subsequently after an aggravation. The comments above must be seen in that light.
79 In accordance with Ministerial Directions, the plaintiff, as part of his material lodged in support of his serious injury application, a Statement of Claim.[50] The Proposed Statement of Claim pleads:
“As a result of having to perform heavy work in the course of his employment with the defendant and in particular having to move one or more overly laden wheelie bins, the plaintiff suffered injuries which forced him off work in or about October 2001. … .”
[50] PCB 13-16
80 The Statement of Claim does not differentiate as between the various incidents to which I have referred; however, in my view, nothing turns upon this, as, at this time, a Proposed Statement of Claim filed in accordance with the Ministerial Directions and may or may not form the basis of the plaintiff’s claim at trial. There is no requirement that that Statement of Claim be the plaintiff’s ultimate accurate pleading.
81 In order to determine whether there can be an aggregation of the various incidents, and work tasks, it is necessary to set out the provisions of the scheme in some detail. Section 134AB(1) of the Act reads as follows:
(1) A worker who is … entitled to compensation in respect of an injury arising out of or in the course of, or due to the nature of, employment on or after 20 October 1999—
(a) shall not, in proceedings in respect of the injury, recover any damages for non-pecuniary loss except— (i) …
(ii) …
(iii) if subparagraphs (i) and (ii) do not apply, as permitted by and in accordance with this section; and
(b) shall not, in proceedings in respect of the injury recover any damages for pecuniary loss except—
(i) … (ii) if subparagraph (i) does not apply, as permitted by and in accordance with this section.”
82 Section 134AB(2) of the Act provides:
“ A worker may recover damages in respect of an injury arising out of, or in the course of, or due to the nature of, employment if the injury is a serious injury and arose on or after 20 October 1999.”
83 Then s.134AB(3) of the Act states:
(3) Subject to subsection (4A), a worker may not bring proceedings in
accordance with this section unless—
(a)
determinations of the degree of impairment of the worker have been made under section 104B and the worker has made an application under subsection (4); or
(b)
subject to any directions issued under section 134AF, the worker elects to make an application under subsection (4) on the ground that the worker has a serious injury within the meaning of this section.”
84 These provisions set out the gateway through which the worker must pass in order to be entitled to common law damages for workplace injury. S.134AB makes further provision for a range of steps which the parties must undertake in order to proceed through the gateway. These include:
• The worker must file an application in an approved form accompanied by various medical material and affidavits. As stated, a Ministerial Direction requires the provision of a draft statement of claim (s.134AB(5)); • The Authority must, within 120 days, advise the worker whether the injury claimed is deemed to be serious or whether a certificate will issue under s.134AB(16)(a): (s.134AB(7)); • The Authority is required to provide all medical reports and other materials upon which it proposes to rely (s.134AB(8)); • If a certificate is issued, or alternatively, if a court grants leave under s.134AB(16)(b), then the Act requires an offer and counter-offer process to be undertaken (s.134AB(12)). This has significant cost implications to the parties upon conclusion of the common law trial (s.134AB(28). 85 What is clear from these “gateway provisions” is that in order to be entitled to sue for pecuniary and non-pecuniary loss damages, a worker must:
(a)
suffer an injury arising out of or in the course of or due to the nature of employment;
(b) that injury must have occurred after 20 October 1999; (c) the injury must be a serious injury as defined. 86 In Barwon Spinners v Podolak,[51] Phillips JA said:[52]
“With that established, subs (1) is seen to be dominant; it is truly a preface to all that follows in s 134AB, including subs (2), and the latter cannot be preferred over the former, as if in some way independent of it. It then becomes critical for a plaintiff to identify, for the purposes of subs (1), compensable injury that is referable to employment on or after 20 October 1999 but not to employment before it. Without that identification, the plaintiff fails to establish how far and to what extent s 134AB applies and in particular to what specific injury the section applies (including the leave provision in subs (16)(b)), which means in turn that the plaintiff fails to establish just what was the injury that has to satisfy the description ‘serious injury’ if leave is to be given. To put it another way, it is that injury which is linked to employment on or after 20 October 1999, and only that injury, which s 134AB addresses — first, in prohibiting a common law proceeding for damages in respect of it ‘otherwise than as permitted by and in accordance with this section’ and, secondly, in authorising such a proceeding, but only on the strict conditions laid down by the section. Those conditions begin with subs (2) which, though essential, is a part of the overall scheme: it does not exist independently of it.”[53]
[51] (2005) 14 VR 622
[52] at paragraph 13
[53] See further, Papercorp Pty Ltd v Nicolaou [2006] VSCA 143 at paragraphs 31-32
87 It is not uncommon in applications brought pursuant to s.134AB to this Court for the plaintiff to allege that injury was suffered “in the course of the plaintiff’s employment …” over a specified time after October 1999 and, in particular in respect of an event or events which occurred on specified dates. In Harvey v Methodist Ladies College,[54] Beach J, in an ex tempore ruling, said:[55]
“As the authorities to which I have already referred show, there is nothing impermissible, in appropriate circumstances, in a plaintiff alleging that different aspects of her employment with the defendant were alternative or cumulative causes of an injury in respect of which such a plaintiff has been given leave to bring proceedings. Whether one looks solely at the order of Judge Strong, or at the order of Judge Strong in the context of the plaintiff’s application and the affidavit that she swore in support thereof, it is clear that the plaintiff has leave to bring proceedings in respect of an injury suffered on or about October 2001 and in respect of work performed from 20 October 1999. … .”
His Honour said further:[56]
“Secondly, Mr Gorton relied upon the medical evidence that was available at the time that the serious injury application was compromised in the County Court. Specifically, he relied upon references in the medical reports to a particular incident occurring on or about 25 October 2001. However, the fact that there are references in the medical reports to a specific incident occurring in October 2001 does not gainsay the proposition that the leave actually granted by consent was in respect of an injury that occurred on or about 25 October 2001 but not limited in respect of any particular incident that might have caused that injury. There is no limitation in the order that confines the plaintiff to a cause of action based upon work performed on or about 25 October 2001. The plaintiff is at liberty to assert, consistent with Judge Strong’s order, that work prior to that time but after 20 October 1999 was a cause of injury suffered on or about 25 October 2001. Whether the evidence will bear out this claim is not to the point for present purposes.”
[54] [2008] VSC 425
[55] at paragraph 11
[56] at paragraph 12
88 The question before his Honour in Harvey was whether the common law proceeding was confined by the precise terms of the orders made when leave was granted on the serious injury application in the County Court.
89 In my view, it is the injury and the consequences which are said to flow from injury which must be the focus when considering whether leave ought be granted to bring common law proceedings. Providing the events alleged to be productive of the injury are:
• arising out of or in the course of or due to the nature of employment; and • occurred after 20 October 1999; then providing the consequences attain the serious level, leave will be granted. It is not to the point that there may be various events, incidents or work tasks which go to make up the injury. The focus is on the injury and its consequences.
90 Forrest J, in Kruisselbrink v Nationwide Maintenance Services Pty Ltd,[57] took a similar view, although his Honour was considering application by a plaintiff to amend a statement of claim to plead incidents which could not be strictly found within the ambit of the serious injury certificate which was granted by the Authority.
[57] [2010] VSC 260
91 It is argued by Mr Middleton that each and every incident or work task that the plaintiff undertook which could be said to have caused or contributed to injury may have to be pleaded in a different way as, for example, the defendant may be negligent in failing to provide a safe system of work in respect of the plaintiff’s duties of hauling heavy wheelie bins, but not negligent if the plaintiff suffered injury in getting into and out of his garbage truck. However, in my view, that is not a matter of concern at the serious injury level. It may well be a matter of concern at the common law trial and may require different pleadings in respect of different incidents. Those are matters for trial.
92 The situation is, however, different when one comes to consider any injury to the plaintiff’s cervical or lumbar spine which occurred before October 1999. That is the “black hole” period and injury suffered therein is precluded by the Act. Likewise, any injury suffered outside the course of the plaintiff’s employment with the defendant and, of course, any injury suffered as for example when the plaintiff slipped on tiles at home.
93 If the submissions of Mr Middleton are correct, then a plaintiff who suffered injury over the course of employment doing some repetitive task may face difficulties. If a plaintiff works on a production line moving articles from one place to another, and involved in lifting, twisting and bending in doing so and suffers injury at one particular point in time, it may be impossible on the facts or the medicine to determine precisely which aspect of that work task caused injury. Likewise, a worker who suffered a psychological disorder which may have occurred as a result of workplace bullying over a considerable period of time, may find it impossible to determine precisely what incident or incidents gave rise to the psychological disturbance.
94 In my view, the plaintiff is not prohibited from aggregating all of the various incidents and work tasks referred to as constituting the one injury.
Nature and Extent of the Plaintiff’s Prior Back Condition
95 As stated, the plaintiff’s lower back problems commenced in 1986 when he was off work for a short period with a “pulled muscle”. His more significant problems commenced in April 1998 when he saw Dr Samararatna complaining of low-back pain. A CT scan[58] showed some minor herniation at L4-5 and L5-S1. The scan also showed moderate facet joint hypertrophy at those levels. The doctor’s clinical notes show attendances during April and May 1998 and the prescription of pain-relieving medication.[59] There are no further attendances with the general practitioner until March 1999 when the plaintiff fell off his truck and jarred his back. He was again prescribed Panadeine Forte, and certified as unfit for work for a number of days.
[58] DCB 161
[59] Clinical records – Exhibit 6
96 The plaintiff agreed that since 1998 he had never been pain-free.[60] He accepted that after the various incidents referred to after that period, the state of his lower back fluctuated, becoming worse from time to time and then settling with medication.
[60] T 59, L19
97 After October 1999 it is clear that the plaintiff sustained a range of further aggravations to, in particular, his back condition. There is significant disagreement amongst the doctors who have examined the plaintiff as to the effect of these various incidents upon the plaintiff’s spine. As stated, I prefer the opinions of the defendants’ doctors that the current situation is more to do with the underlying ageing process than any one or more workplace indents. While the plaintiff in his affidavit[61] identified one incident as particularly significant, his recollection of events when he was cross-examined was so poor that he was unable to recall these various events with any certainty and unable to say whether any one event was more or less significant than others. Further, his description of this significant event stands in contrast to the various claim forms.
[61] PCB 21 – paragraph 20
98 Doing the best I am able with the tendered material and evidence, it is clear that the plaintiff suffered a series of incidents and work tasks which aggravated an underlying degenerative condition in his lumbar and cervical spines over the period from 1998 until 2001. It would appear that in approximately October 2001, the plaintiff had a period away from work, then returned to work undertaking light duties. Eventually the defendant terminated the plaintiff from this work as the work was no longer available. While Mr Lewis argues that his employment capacity was significantly reduced at this point, it is clear that from 2004 until approximately February 2009, he resumed work either for labour hire companies, or for municipal councils, again involved in garbage truck work. I accept that his employment ceased in February 2009 not because of any incapacity, but rather because of the termination of his contract.[62]
[62] See Exhibit 2
99 Section 134AB(1) makes it clear that a plaintiff is entitled to bring proceedings only in respect of injury arising out of the course of employment on or after 20 October 1999. Any injury occurring before that date should be specifically distinguished.
100 In my view, there is no medical practitioner, whether treating or consultant, who has specifically addressed the question of the nature and extent of the injury and consequences both before and after the October 1999 date. The matter received passing reference by Mr Miller, orthopaedic surgeon, when he examined the plaintiff in October 2010.[63] However, he was not provided with detail of the treatment by the general practitioner, the CT findings nor the plaintiff’s admission in evidence that he had never been pain free from that time. Generally, there is no practitioner who has been fully apprised of the nature and extent of the plaintiff’s pre-existing lower back problem, and asked to make an assessment of the aggravation of that condition by the various events which occurred after October 1999.
[63] PCB 90
101 Petkovski v Galletti[64]established that where there was an aggravation of a pre-existing condition or injury, the onus was upon the applicant to establish what injury was caused by the aggravating incident and the extent of impairment of the body function as a result of that relevant aggravation. It was said the additional aggravation had to involve a serious long-term impairment of the body function.[65]
[64] [1994] 1 VR 436
[65] Petkovski at 443-4 – see further, Guppy v Victorian WorkCover Authority & Bendigo Access Inc. [2010] VSCA 164 (25 June 2010) at paragraph 19
102 In my view, the plaintiff has not discharged that onus. Even if I were to accept that the consequences to him of the combination of his lower back and neck injuries achieved the serious injury level, I am not satisfied that those consequences are specifically related to injury which occurred after October 1999.
Does the Plaintiff have a Serious Injury?
103 Setting aside for a moment the failure by the plaintiff to meet his obligations of proof in respect of post October 1999 injury, and the cause of the plaintiff’s current condition as being that of the underlying degenerative process, in my view the plaintiff has not proved, as prescribed by s.134AB(38)(e) and (f) that he has suffered a 40 per cent loss of earning capacity as a result of injury to his lower back and neck. As stated, there is uniformity in the medical reports that the plaintiff would be unable, at the present time, to resume his employment as a garbage truck driver. However, over the period from 2004 to February 2009, he did drive garbage trucks, and worked for labour hire firms. His employment in February 2009 was terminated only because the contract which he worked under expired. I prefer the opinion of various of the defendant’s doctors, including Dr Baynes, Dr Barton and Mr Battlay that the plaintiff does have a capacity for work in modified duties, providing certain restrictions are provided. I acknowledge that the plaintiff has limited education, and has difficulties with reading and writing but in my view, even taking these matters into account, the plaintiff does have a capacity for lighter work. Even although his work history is largely involved with the driving of trucks, I am satisfied there would be a range of employment open to him.
104 In terms of the plaintiff’s application in respect of pain and suffering, I am satisfied the plaintiff does suffer chronic neck and lower back pain which requires the prescription of pain-relieving medication from time to time. I prefer the opinions of the defendant’s doctors that there is an element of non organic or functional presentation, and I must exclude any such consequences from my consideration of the plaintiff’s organic injury. While I accept that the pain and restricted movement does provide the plaintiff with consequences which could be said to be “significant” or “marked”, in my view, they do not achieve the “very considerable” level as the legislation requires. He is having little in the way of treatment other than physiotherapy. He was able to resume work over the period from 2004 until 2009 on a full-time basis, carrying out relatively heavy duties. While he did have time away from work, in my view, his capacity to undertake these duties is a measure of the pain and suffering consequences.
105 The plaintiff’s application fails in respect of pain and suffering and pecuniary loss.
106 I shall make consequent orders.
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