O'Rourke v Victorian WorkCover Authority
[2021] VCC 2015
•13 December 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-04990
| LINDSAY GORDON O’ROURKE | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 November 2021 | |
DATE OF JUDGMENT: | 13 December 2021 | |
CASE MAY BE CITED AS: | O’Rourke v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 2015 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – injury to spine – pain and suffering – causation
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38)
Cases Cited:AG Staff Pty Limited; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] 34 VR 309; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Rowe v Transport Accident Commission [2017] VSCA 377
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J B Richards QC with Mr S Carson | Arnold Thomas & Becker |
| For the Defendant | Ms C Spitaleri | Wisewould Mahony |
HER HONOUR:
1This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff during the course of his employment with JR Haulage Pty Ltd (“the employer”) now known as Post Logistics Australasia Pty Ltd (“PLA”) between 2002 and 2009 (“the period of employment”) and in particular on 20 October 2005 (“the said date”).
2The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a)permanent serious impairment or loss of a body function.”
4The body function relied upon in this application is the spine.
5Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
6The impairment of the body function must be permanent.
7The plaintiff bears an overall burden of proof upon the balance of probabilities.
8By ss(38)(c) of the Act, the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant or marked”.
9I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
10I have applied the principles identified by the Court of Appeal in AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz[1] and Peak Engineering & Anor v McKenzie[2] in reaching my conclusions.
[1] (2012) 34 VR 309 (“Filipowicz”)
[2][2014] VSCA 67
11The plaintiff relied upon two affidavits and gave viva voce evidence. He also relied on an affidavit sworn by his wife, Pamela, on 15 November 2021. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
12The defendant’s case was threefold: The plaintiff’s current back condition was not suffered in the course of employment or in the forklift incident;[3] he had failed to disentangle the consequences which related to the incident or his course of employment, and, he also had failed to establish “seriousness” in relation to a compensable back injury when taking into account the range of non-compensable conditions.[4]
[3]Mr Esser’s view
[4]Transcript (“T”) 6, T37; Peak Engineering & Anor v McKenzie (supra)
The Plaintiff’s evidence
13The plaintiff is presently aged sixty-six, having been born in October 1955.
14Having initially worked as a tool grinder for a decade, he had been a delivery truck driver pretty much all of his working life. Over the years, he had suffered numerous injuries in what was often physically-demanding work. He had suffered knee injuries, including a knee replacement, shoulder and arm injuries, a hernia injury, and back and neck pain dating back to the 1990s.
15His left shoulder pain, in particular, started when he was moving washing machines and fell off a truck many years ago. He had had to take time off work at various stages over his working life to have treatment and get over these injuries.
16He had chiropractic treatment for back and neck pain from time to time, however, he was always able to keep up with often heavy and fast-paced delivery work and did so for many years. He was always well able to get himself back to work after any flare up and had managed to continue to earn a good income over many years.
17He started working for the employer in 2002, when it was known as JR Haulage. He worked full time, although was considered to be a contractor. He worked solely for the employer and subject to its direction, and probably averaged about fifty hours of delivery work each week. He worked with the employer until 2009. He drove his own truck and delivered whitegoods, 80 to 90 per cent of the time.[5]
[5]T9
18He was under pressure with his generally heavy duties, but did not have a back injury until the said date.[6] He always had slight pain in his back, but not to the extent it was after that with “the actual impact”.[7]
[6]T10
[7]T11
19The plaintiff’s injury occurred at the employer’s West Footscray premises on the said date. He was walking between a B-double truck and some unloaded pallets, when a fellow employee forklift driver hit him with the forklift he was driving, striking him with a lot of force on his left side, pushing him about three feet sideways (“the incident”).[8]
[8]T10
20The plaintiff completed an accident report in relation to the incident. He submitted a WorkCover form in November 2005, where he set out he was “hit by a forklift truck on the left side of [his] body” and had “pain to hip & left side of body, hip rotation [and scoliosis]”.
21Despite being hit hard, he was able to stay on his feet, but he was a bit shaken up and able to keep working. Pain then developed over the next hour or so, concentrated in his left hip, lower back and left shoulder, and gradually built up to quite a severe level.
22While he had had back pain from time to time before the incident, from then on the pain was much more constant and considerably greater, and he had been left with that increased pain and associated restrictions to this day.[9]
[9]June 2020 affidavit
Post-incident treatment
23He saw his general practitioner (“GP”) and had about six weeks off work. He returned to work in pain, although he was keen to push through it to keep his job, as he had financial commitments and simply was in no position to stop working.
24The plaintiff had x-rays and his back had “gone into scoliosis with a twist in the spine”. He had six weeks of chiropractic treatment, over which his body was gradually manipulated to get his spine straight again. He was also then under the care of his general practitioner, Dr Downe.[10]
[10]T11
25He agreed that he saw Dr Downe a number of times in the early weeks after the incident, and he then went back to work in mid November 2005. If the records showed that he next attended Dr Downe for back pain in March 2008, that was correct.[11]
[11]T12
26The plaintiff’s pre-existing left shoulder pain that had flared up after being hit, started to calm or settle down to some extent, although he was dislocating the shoulder a few times each week and still did so at that time. He felt that he was then still carrying the after effects of that injury. The hip pain also seemed to settle down, although not entirely. However, the lower back continued to be his major problem from that time.
27The plaintiff pressed on at work, but worked with more or less constant lower back pain that only varied in terms of its strength. Bending and twisting motions from the waist were a particular problem, as was walking for more than a short distance. In particular, walking on steps or sloped ground was a significant problem.
28He also felt the pain start in the lower back and then travel out into the outside of the buttock and hip area. The pain also increased with various types of activity.
29He agreed that after the incident, he has been able to work full time as a truck driver, at times involving heavy lifting of whitegoods, despite his back pain, but he did so with assistance.[12]
[12]T32
30Things had not improved since that time. He tried to put up with the back pain as much as he could, rather than resorting to tablets, because he was worried about their long-term effects. In any event, he took numerous medications for cholesterol and blood pressure, however, his pain often built up to a level where he simply could not put up with it anymore, and then took something like Panadol. When the pain was bad, he took two Panadol tablets three times each day.
31He also had a routine of exercises that he did most days to try and keep his back loose. They seemed to help sometimes, although often they did not do much at all.
32In the background, he saw his chiropractor, Dr Stanley Poon, each few months to try and keep his back or spine in reasonable shape. He also remained under the care of his GP.[13]
[13]June 2020 affidavit
Work post the employer
33As at June 2020, the plaintiff had been working for three years for his nephew, who traded as P& H Earthworks. He drove a truck to transport quarry products such as gravel, earth and the like.
34The plaintiff had to change jobs, as delivery type work was no longer possible due to his various injuries, but mainly his lower back pain, as the physical activity was too much. Getting in and out of a truck frequently flared up lower back pain considerably and he felt he would make things even worse if he continued in delivery work.
35He struggled to lift anything like 15 kilograms due to his lower back pain and simply would not be able to cope with delivery work. Fortunately, his job just involved driving work and he did not have to be in and out of the truck all the time in order to pick up or deliver various items.
36While his job was much less physically demanding, he still came home from a day of driving with significant lower back pain. He found he very much needed to use his down time away from work to rest his back so he could keep going at work. He even went to sleep with back pain and was woken by it during the night. It was a difficult cycle to get caught up in and he worried about how long he would really be able to continue.
37He was able to bounce back from various other injuries that were quite significant over the years but the lower back injury dating back to 2005 was what really had taken its toll on him. Further, as things as had been so bad for so long, he did not see much chance of things improving.
38After the plaintiff left the employer in 2009, he worked for M3 Logistics as a contractor. The work was very similar in nature, but nowhere similar in the amount of weight he was carrying because the things he was carrying for them were mainly components of air-conditioning units which were quite light and could be manoeuvred quite easily. It was nothing like the work he was doing with the employer. He had to start his own company, O’Rourke Transport, in 2011 to do driving work for this company.[14]
[14]T12
39While his GP noted on 14 September 2012 that the plaintiff had been “lifting washing machine at work above head”, he did not know why the doctor wrote this as it would be physically impossible.[15]
[15]T17
40If a Claim Form signed by the plaintiff in June 2017 set out he had injured his shoulders in July 2016 as a result of lifting, pushing and pulling very heavy whitegoods, air conditioning units, “then [he] was”. He was confused with the dates and it was the case he was still doing this heavy lifting of whitegoods in 2016. However, when he finished with the employer, he got a lot of assistance from workers down the docks when unloading.[16]
[16] T16
41In his recent affidavit sworn in November 2021, the plaintiff confirmed nothing much had really changed in terms of his pain and various limitations on his lifestyle. In general, he had felt his back had worsened over time.
42He still has constant back pain, and while sitting giving evidence, he had pain in his hips. As he sat there, the pain was mainly in his hips and it radiated into his right buttock. It was very uncomfortable. The long sitting in the truck can really get bad, to the point where his legs feel heavy when he gets in and out. His back gets like that within an hour of being in the truck. The pain is pretty much the same and fluctuates over the rest of the shift, but he just tolerates it.[17]
[17]T34
43When he described “pushing through the pain”, it might be taking a couple of Panamax, tensioning the belt around his back, or loosening it. He is moving around and manipulating things and doing things all the time, depending on his level of pain.[18]
[18]T35
44He is getting extremely tired to the point it actually upsets him emotionally. He is not that much of an emotional person, but he gets down sometimes. He has spoken to his GP about this and he has given him anxiety medication. This situation affects his capacity to enjoy his day.[19]
[19]T35
45By the end of the day, his pain is well elevated, depending on what he has done during the day or if he has had the opportunity to walk around. If he is flat out all day, then his pain is pretty bad.[20]
[20]T36
46Most nights, he gets a twinge in his back trying to sleep. Three or four nights a week, he always gets a niggle and a lot of tossing and turning, and sometimes he gets up and sits on the couch for a while.[21]
[21]T35
47His symptoms since the incident are more consistent “and I say all this, Your Honour, as an honest person. They are a lot more consistent since that but I just have this thing where I don’t let anything stop me working, I just work through the pain.”[22]
[22]T37
48These days, his safe lifting capacity is probably about 5 kilograms, although he can sometimes lift more, but sometimes lifting something even that light will start to bring on significant back, and sometimes, shoulder pain after a few minutes of activity. Pre incident, he would not even have thought twice about handling such light weights.
49His walking tolerance is about a kilometre, although sometimes that can be a struggle and his back pain will flare up significantly.
50Simply standing relatively still will also bring on significant back pain. He can usually put up with that for about half an hour before he has to sit down, and if it is that bad, he may even have to lie down.
51Bending or twisting from the waist is a real problem. He is in trouble if he drops something on the floor, as it is hard to bend down to pick it up. Putting his socks on in the morning is quite a routine, having to lie on the bed and scrunch his legs up to put on each sock, as it is nearly impossible to sit and lean over to do it.
52Perhaps, most significantly, are the limits on his ability to sit behind the wheel and drive. He lasts about sixty to ninety minutes before he has to stop and have a break due to increasing back pain. However, pain will have built up to a significant level after about only twenty minutes or so behind the wheel.
53He sees a chiropractor for treatment for his back and shoulder and has a routine of stretches and exercises which seem to help, because he if does not do them he feels increased stiffness and soreness. Most mornings, he does stretches on the floor he has been shown by his chiropractor. His condition is monitored by his GP.
54The plaintiff would prefer to be not taking tablets, as he has had some pretty disturbing side effects, so he just takes very basic painkillers like Panamax. When the pain is bad, he might take two at a time, three times a day. He also takes Prednisolone. The tablets can help with the pain sometimes, but just as often they do not seem to do much at all. He currently takes up to twelve Panadol over the whole day, once or twice a week.[23]
[23]T8
55He also takes anti-hypertensive medication, Pantoprazole, Atorvastatin, Allopurinol, Clopidogrel and Seroquel, for other medical conditions.
56He agreed that he had seen Dr Downe for back pain three times between 2011 and March 2020.[24]
[24]T29
57When it was suggested that he frequently attended his GP about his shoulders and his knees, but not his back, because that was not very significant, he said that he is not “a complainer”, he just tends to get on with the job, and if he can maintain the pain himself with a back brace or a shoulder brace, take Panamax and do core exercises, he does not feel the need to go to the doctor. He tries to maintain his work ethic and pain management all of the time by using heat packs and “things like that”.[25]
[25]T31
58He thought he had probably only gone to the doctor about twice in the last twelve months for his shoulder as he tends to work through the pain – “I’m just like that, I’m made like that and that’s just the way I am.” For these reasons, he has not asked for a specialist referral for his back, just restricting his activities and trying to get on with it. He tends to work through it and he has three or four different types of braces that he uses on his back and depending on the severity of the pain, he changes from one brace to another.[26]
[26]T32
Current work
59He continues to work for his nephew, and even though the work is light, the driving takes its toll. He is feeling more and more back pain as time goes by and it is staying with him and lasting longer after he comes home. It is such that he can be in pain for the whole weekend and then starts the next working week in pain. He realises his days in this work are numbered and he is going to have to give the driving away eventually.
60He agreed he had a heart attack in April 2017 and, after that, started working for his nephew, driving trucks and transporting different types of quarry. That job requires him to frequently get in and out of the truck. He drives to a quarry, waits in queue, collects gravel and then takes it back to another location, and repeats that process a number of times during the day. When asked why he left M3 Logistics and whether it was because of his heart attack, he said “I was told that I needed to slow down”.[27]
[27]T18
61He does multiple trips to the quarry during the day. He has not suffered any back injury while working for his nephew, but he has pain all the time. He never actually suffered an injury to his back “on top of anything else I’ve done”.[28]
[28]T19
62He denied he was hospitalised in March last year after an acute back spasm when he lifted something heavy at work. This happened at the campsite at Blairgowrie, when he just collapsed all of a sudden and he was taken to Rosebud Hospital.[29]
[29]T19
63Dr Poon was mistaken when he said that this spasm happened in March 2020, after lifting a heavy object at work.[30] The first time the plaintiff suffered a major spasm was when he attended Rosebud Hospital. He has not injured his back this year while working for his nephew – “it gets spasms every now and then” which is a regular occurrence for him now.[31]
[30]T20
[31]T21
64He thought he first got spasms, although it was hard to say, two or three years ago, and probably as he got older it became a lot more acute. His attendance at the Rosebud Hospital was for the worst spasm. He was at the Hospital for about six or seven hours and given an injection. He did not have to go back there.[32]
[32]T21
65The plaintiff has not suffered any significant injuries to his back while working for his nephew, but he just gets constant niggles and his nephew has told all the people who work for his company that the plaintiff is not to lift anything heavy.[33]
[33]T22
66Dr Poon was also wrong when he mentioned a similar scenario occurring on 22 January 2021. The plaintiff only went to Rosebud Hospital once, and he could not work out why the Hospital had not sent any information.[34] He has not had a bad spasm like that this year. The only spasm this year was when he had the regular appointment with Dr Poon, he had a spasm getting out of his car. He had to ring and say he was outside and he could not get out of the car.[35]
[34]T23
[35]T24
Knees and shoulders
67Also, his knees have been playing up recently. He had has both knees replaced and things were pretty good for a while. Fortunately, the knees are not such an issue for him when seated while doing his driving work.
68While his shoulders and knees have not helped things one bit, his back remains the major and overwhelming problem and it is something that compromises almost everything he does every day. While he was able to bounce back from various other injuries over the years, he has never got over the lower back injury and is no longer confident things are somehow going to improve after so many years.
69The pain in his shoulders is still very bad. At times, it is worse than the pain in his back, and when they come together, that is quite nasty. He wears a brace on his right shoulder and also wears a back brace at work most days. 60 per cent of his pain is from his shoulder and the other 40 per cent from his back. It depends on the day. Sitting giving evidence, he could not feel his shoulders, but if he tried to do anything like mow the lawn, he would have terrible pain in his shoulders and his back –“everything” and would have to get the next door neighbour to help, which he felt very embarrassed doing. He cannot do any serious lifting because of his shoulders.[36]
[36]T27
70He agreed he suffers from bilateral shoulder pain and had issues for many years with his shoulders. He saw Mr Raleigh in 2017 and 2018 because his shoulders were really bad and they are still pretty bad now. Mr Raleigh suggested cortisone injections into his shoulders, but at first he told the plaintiff to just restrict the amount of work and movement which he did, and then to maybe ring him in the future to have a couple of cortisone injections there, but he never got to call back.[37]
[37] T26
71Following his last knee reconstruction, the plaintiff had a panic attack from the strong medication he had to take so they just gave him normal analgesics.[38]
[38]T25
72He agreed his knees were really bad before the operations, but after 2016, his right knee stopped giving way. He disagreed with the suggestion that up until 2016, his back pain only had a minimal impact on his ability to walk and stand – “I’ve always had that niggle there in my back but yes, the knees did add to it greatly”.[39] “Absolutely” his knee pain was the biggest issue before the knee replacement surgery.[40]
[39]T25
[40]T26
Sleep
73His sleep is still not good. Pain makes it hard to get to sleep and still wakes him up. He feels that this, combined with the increased pain while driving, is going to stop him in his tracks sooner rather than later, as there is no real escape from the back pain.
74Back pain interferes with his sleep and also causes him problems putting on his socks. He agreed, however, his shoulders also give him problems sleeping, but they are not as bad when he is lying down. A pillow helps him a lot with his shoulders, but it does not seem to make much difference to his back. His back probably affects his sleep three or four times a week.[41]
[41]T28
75He agreed, as Dr Grant, psychiatrist, reported in 2017, that his focus was on his shoulder and he mentioned his sleep was affected by his shoulder.[42]
[42]T29
Activities
76The plaintiff has four grandchildren, aged four, three, twenty months and two; however, he struggles to pick them up or play with them because of his back pain. This is most upsetting, as he wants nothing more than to be able to get a close connection with them at their young age, which he feels he is missing out on.
77He also spends most weekends in bed lying down or sitting around, as his back pain is so severe and he is unable to do anything after a week’s work. His wife has to do all the housework and gardening which makes him feel useless. Pre incident, he did everything around the garden, maintaining the house and even built a pergola, as well as pool deck.
Lay evidence
78The plaintiff’s wife, Pamela, swore an affidavit on 10 November 2021.
79She confirmed the plaintiff struggles with pain and he complains of pain when he gets home from work. At least once a week, and each weekend, he spends lying down due to pain.
80He takes Panamax daily and relies on chiropractic visits. He cannot take stronger pain medication as he has sarcoidosis and had a heart attack in the past.
81She has seen he suffers emotionally and becomes frustrated when dealing with his pain and associated limitations, and he takes anxiety medication as a result. She sees he struggles greatly around the house, and many heavier chores are beyond him. He tries, and then ends up having to lie in bed for a couple of days with a flare up. This means she often ends up doing most of the running of the house.
82They have a caravan which they used to take to Blairgowrie each year. They now need their children to come and set up the camp, because the plaintiff struggles to do it and he feels bad about having to rely on them.
83The plaintiff has always taken a lot of pride in his work, and she knows he is very worried about being so limited in what he can now do. She has got a new job working four days per week, as neither of them are at retirement age and they still have a mortgage and household expenses, and simply stopping work is not an option for them.
84Pre-injury, the plaintiff did have a back problem and consulted a chiropractor for maintenance purposes, however, he never collapsed or was unable to do anything because of it.
The Plaintiff’s medical evidence
Treaters
Dr Graeme Downe, Joseph Banks Medical Centre
85The plaintiff has been a patient since 2002.
86In his 2017 report, Dr Downe noted the plaintiff advised that for the duration he had worked as a truck driver, the majority of the time employed by his own company. His work required him to jump down repeatedly from the cabin and the tailgate with increased impact on weightbearing joints.
87The plaintiff complained progressively over time of bilateral knee and lower back pain. His truck driving work had predominantly involved the movement of whitegoods. Moving these items around caused an additional physical load to multiple body areas, including the back, shoulders, hips and knees, as a consequence of the weight and size of the items.
88As at 2017, the plaintiff’s major medical complaints were osteoarthritis of both knees, non-specific mechanical back pain and sarcoidosis with renal impairment.
89Dr Downe thought the complaint of bilateral knee osteoarthritis had a direct relationship to the plaintiff’s workplace duties. The severity of that condition resulted in total knee replacements, to the left in 2012 and the right in 2016.
90Dr Downe thought it difficult to specifically isolate the plaintiff’s injuries into separate entities. There had essentially been an absence of a single isolated trauma event associated with the pathology affecting both shoulders, both knees, back and neck. Age progression was also a significant background factor in the development of degenerative conditions.
91For much of his recent working career, he suspected the plaintiff had pain in those multiple areas regularly, without frequent attendances at the medical centre to report and discuss them. Apart from frequent complaints about his knee, since the incident there were reports of back pain on 20 October and 8 November 2005, and 6 June 2011.
92In his 2021 report, Dr Downe noted there was little added information to update.
93Since 2017, the plaintiff had had some major medical issues which had required hospitalisation and they had overshadowed the previous injuries in terms of clinic consultations.
94The plaintiff’s injuries were consistent with the workplace repeated impact. The incident, when struck by the forklift, was not actually the single primary event leading to the chronic back problem, which Dr Downe considered was more related to the repetitive impact of lifting, bending and jumping down from a truck. The incident was just another contributing event amongst many repeated forces.
95The plaintiff had been required to attend several specialists regarding cardiac, gastrointestinal and renal issues. He still had ongoing back pain, but his knees had clearly improved since the surgery. He still had chiropractic treatment for his lower back, which he said had been helpful for him.
96Dr Downe did not have any recent consultations with the plaintiff to specifically address his back or knee complaint, nor did he have recent investigation results. He considered the plaintiff’s injuries had substantially stabilised and his prognosis was essentially for ongoing similar level symptoms, with the potential for exacerbation of pain with ageing.
97The plaintiff is sixty-five, resolution beyond current level is not expected at all, and Dr Downe did not expect any major improvement. Therefore, the injuries are currently permanent. He did not consider further treatment and investigations were required for the plaintiff’s lower back or other joint areas.
98He considered the plaintiff’s lower back condition had affected his ability to perform his normal work duties as a truck driver, especially delivering whitegoods which requires reasonable physical activity.
Dr Poon, Bay Road Chiropractic
99Dr Poon reported in 2016 that the plaintiff first presented in September 1993. He had treated him on many occasions and most of the conditions – right shoulder dislocation, lower back strain and sprain, groin strain, neck strain, and cervicogenic migraines – had been related to his work as a truck driver and carrying whitegoods The forklift incident was in 2005.
100In 2007, the plaintiff reaggravated his low back while performing lifting duties, and he had also injured his right knee at work in February 2007 and had developed a limping gait. That had resulted in a biomechanical dysfunction of the sacroiliac joint and put strain on his lower back.
101The plaintiff attended on 3 October 2007 for an assessment and management of a lower back complaint which had been reaggravated due to another work-related injury. He said he was off on WorkCover a few years earlier for a back injury after being hit by a forklift. This condition was rectified after receiving chiropractic care.
102A lumbar CT scan was carried out in 2008.
103The plaintiff began to complain of signs and symptoms of right carpel tunnel syndrome, confirmed in 2012.
104The plaintiff continued, as of October 2016, in his job in whitegoods delivery, even though he continued to have pain whether in his neck, shoulder blades, mid or lower back, for which he would seek treatment.
105Dr Poon then thought the plaintiff’s numerous conditions had been a result of the work duties, and given his vocation, he would inevitably re-aggravate the issues at hand, and the severity of the degeneration of the lumbar spine explained his predicament.
106In his most recent report of 15 July 2021, Dr Poon diagnosed the following:
· right shoulder dislocation of the glenohumeral joint
· right knee requiring total knee replacement
· lumbar spine – annular disc bulges at L2-3, L3-4, L4-5 and L5-S1
· biomechanical dysfunction of the right sacroiliac joint. This area had not stabilised due to the chronicity of the condition. Surgery was inevitable but the plaintiff needed to continue to work to provide for his family
· osteoarthritis of the cervical facet joints and biomechanical dysfunction of the upper cervical spine with regional myofasciitis and cervicogenic migraines, which had a guarded prognosis
· osteoarthritis of the acetabulofemoral joint in the hip.
107Dr Poon noted between 2018 and 2021, the plaintiff continued to receive treatment in relation to these conditions, except for the right knee, which had been symptom free since surgery.
108In March 2020, the plaintiff was hospitalised for an acute spasm in the lumbar area after lifting a heavy object at work. The disc herniations gave rise to weakness in the lumbar spine, and poor truck seats and poor lifting techniques contributed to the outcome. The plaintiff forgets to adopt core muscles, thus placing greater strain on his back.
109A similar scenario occurred on 22 January 2021 when the plaintiff felt an acute spasm in his left low back, extending across the hip region, and he was not able to walk. He was treated at Rosebud Hospital.
110Dr Poon noted, due to COVID, the plaintiff was hesitant to present for treatment.
111He thought the plaintiff could not continue his vocation in a normal capacity. Stability will only occur if there is surgery, but that procedure had been held off as the plaintiff was reluctant to commit to an operation. There would be similar circumstances for the shoulders and hip joints.
112The shoulders, lumbar spine and hip joints are considered permanent injuries due to the tears and osteoarthritic changes, and will require surgical repair in time. There are moderate, degenerative, permanent changes in the cervical spine. The reduction in physical stress to the area once the plaintiff ceases work will help immensely and he will need constant physiotherapy to maintain the integrity of his cervical spine.
113Noting the plaintiff was under orthopaedic surgeon, Dr Raleigh, Dr Poon mentioned the plaintiff was waiting for further deterioration before considering surgery, and further investigations of his spine, shoulders and knees needed to be performed to update his condition.
114The plaintiff had had to stop working as a cartage driver of whitegoods due to his inability to maintain lifting. He could not rely on his lower back or shoulder to sustain physical work. He had been a whitegoods cartage driver for many years and had to make sure his body was in good shape with that work. Chiropractic management enabled him to do so for several years.
115The plaintiff had had to stop his regular vocation, so between 2017 to date, had begun working for his nephew as a delivery driver. The job involved no lifting, thus less aggravation to his body. The plaintiff had taken a significant pay cut to stay in the workforce. Without other skills and at an age where he feels that retraining will not give him future employment options, he has had to take on whatever job presents.
116Before the injuries in 2005, the plaintiff presented to the clinic for various aches and pains associated with stress load onto his body. The treatments would help him ascertain his ability to continue his vocation as a whitegoods delivery man. Since the incident, he had struggled with the job, especially in the lower back. His sciatica would constantly irritate his ability to perform. He had to slow down the pace of work at times and missed out on other work opportunities because of pain, and he was now working as a driver with less capacity.
Mr Peter Wilson, orthopaedic surgeon
117Mr Wilson reported in December 2017, having first seen the plaintiff in November 1996 in relation to his left knee.
118Mr Wilson carried out left total knee joint replacement in March 2012. In June 2016, he carried out a right total knee replacement, with post-operative progress being uneventful.
119When last seen on 20 October 2016, the plaintiff was walking well and had no complaints of right knee pain. He had not returned for further review.
Endeavour Hills Chiropractic Centre – Dr Braslis
120The plaintiff was seen between October 1995 and June 2011. In 1995, he was seen for neck pain and low back pain. From 1995 to 2004, he had episodes of the same problem. In September 2003, he reported left-sided sciatica with left knee pain. The low back injury over that period was now clearly chronic in nature.
121There was the forklift incident and, within a month, increased neck pain. From 4 November 2005 to 11 February 2006, the plaintiff was seen 23 times. From 2007 until June 2011, he was seen seven times, with minimal relief.
Investigations
122A lumbosacral spine x-ray of November 2005 was reported to show lumbar curvature convex to the left, centred on the L2 vertebral body. There was severe disc narrowing between L2, L3, L4 and L5 vertebral bodies with loss of normal lumbar lordosis. There was facet joint degeneration between L5 and S1 vertebra and there was lumbar spondylosis.
123Following a lumbar CT scan in March 2008, it was reported the examination demonstrated the presence of significant lumbar disc and facet degenerative change.
124Dr Poon arranged an x-ray of the thoracic spine carried in September 2016. The clinical notes read “[m]id T5-T8 pain, left greater than right”. It was reported there was minor thoracic scoliosis. There was no fracture or suspicious osseous lesion. There was L2-3 intervertebral disc degeneration with loss of height, particularly on the right where endplate osteophytes were visible.
Medico-legal evidence
Associate Professor (“Mr”) Miron Goldwasser, orthopaedic surgeon.
125Mr Goldwasser examined the plaintiff in March 2018.
126The plaintiff’s biggest problem then continued to be his left shoulder. His symptoms in the right were more with pain on certain movements. He was very pleased with the excellent function following left knee replacement surgery. His right knee had done very well, but he was pleased with the fact that it was virtually as good as the left.
127As far as his back was concerned, although the plaintiff could function reasonably, his lifting was reduced to 30 kilograms, whereas previously, he could manage more than 50 kilograms. He was conscious of a back problem and pain about 50 per cent of the time, and his back condition was still significantly affecting him and he could not move as well as he used to. He still had intermittent discomfort in his neck with limited flexion.
128The right carpal tunnel syndrome did worry him. There did not appear to be any serious pathology in the hip and it was likely the symptoms in the hip were referred from his lower back.
129The plaintiff considered his employment with PLA was the most strenuous and physically demanding of all his jobs. There, his activities included driving, manual activities, lifting objects which were heavy, large and awkward, and doing a lot of reaching. He contributed most of his difficulties to this period of his employment.
130The plaintiff was then taking Panadeine Extra and Panadol Osteo for pain, particularly mainly his lower back and shoulders and right carpal tunnel, about six tablets a week.
131On examination, there was mild restriction of neck movements and mild tenderness at the base of the neck. There was mild restriction of back movements and mild tenderness in the lower region. Movements of both shoulders was mildly restricted. There was a good range of hip movement.
132Mr Goldwasser concluded the plaintiff had problems with multiple areas, including both shoulders, both knees, back, neck and carpal tunnel. The hip symptoms appeared to be referred pain from the lower back.
133Despite significant symptoms, including pain, the plaintiff continued at his work, indicating a strong motivation for him to keep working. However, he had not been able to maintain the more strenuous activities he did when working for PLA. He was then doing lighter duties, which mainly involved him driving, and he was able to manage these currently.
134There had been further medical problems, which included the condition of sarcoidosis, which was now controlled with low dose prednisolone, a heart problem involving stents and complications of gastrointestinal bleeding, with subsequent alteration in his medications.
135The plaintiff had had arthroscopies and knee replacements in both knees, with his response being extremely good.
136The plaintiff’s most significant symptoms were in both shoulders where investigations had shown considerable pathology. He had a marked right carpal tunnel syndrome, which had progressed and troubled him. He also had symptoms relating to his back which appeared to be related to the stresses of his work and there was evidence of multilevel degenerative change in his lower back. There were mild symptoms in his neck, but he was likely to have degenerative changes there also.
137The progress of the plaintiff’s condition was probably a combination of an underlying constitutional tendency to arthritis in his knees, which had been aggravated by activities at work, and also an underlying constitutional tendency for shoulder laxity. It was likely the strenuous activities at work had contributed to the development of right carpal tunnel.
138In terms of diagnosis, the plaintiff probably aggravated his back condition with activities at work with aggravating tendency to degenerative changes in his back. Activities at work probably contributed to aggravation of neck symptoms.
139Mr Goldwasser thought the incident was a significant contributor to the plaintiff’s left shoulder problem. It was possible they were a contributor to his right shoulder problem, but he did not have any evidence.
140He thought the incident was a significant contributor to the plaintiff’s back condition, and the major contributor, noting there was no history of any other specific workplace incidents regarding his back injury. His duties while at PLA were probably the major contributing factor to his back injury and there was probably a minor contribution with his duties at L&P.
141It was sensible for the plaintiff to limit his lifting to reduce the risk of further back problems. He was then taking Panadeine Extra and Panadol Osteo for his pain as a result of degenerative changes in his lower back. The prognosis was his back and neck were likely to remain much the same into the foreseeable future.
142Mr Goldwasser considered the plaintiff had been remarkably well motivated and it was not usual for a person with these injuries to do as well as he had done, which was a credit to his motivation and determination.
Dr Hazem Akil, neurosurgeon
143Dr Akil examined the plaintiff in September 2021.
144He was requested by the plaintiff’s instructing solicitors to limit his comments to the plaintiff’s lower back injury.
145The plaintiff reported continuing left-sided lower back pain radiating towards his left buttock, with frequent radiation to the upper aspect of his hamstring region. The pain was constant and could be very severe, and he attended hospital twice because of severe and disabling pain.
146The plaintiff takes only Panadol for pain relief.
147On examination, the plaintiff had a reasonable range of lumbar forward flexion. There was some limitation of extension and that aggravated pain further on the left side. There was no sensory or motor deficit involving the lower limbs.
148Following a 2008 lumbar CT scan, it was reported there was significant fact joint arthropathy at L3-4, L4-5 and L5-S1, with also significant disc disease at L4-5 and L5-S1.
149Based on the mechanism of injury, the symptoms the plaintiff is complaining of and the findings on CT scan, Dr Akil concluded the plaintiff had aggravated lumbar spondylosis, resulting in primarily facetogenic lower back pain. He thought the incident aggravated the condition and therefore it is the main contributing factor to his current symptoms.
150Dr Akil thought the prognosis was guarded and that the plaintiff should see a pain specialist for consideration of a lumbar MRI scan, as well as spinal diagnostic injections.
151He noted the plaintiff continues to work as a truckdriver, however, given the CT scan findings and the type of symptoms, he should not be attempting to lift any object heavier than 10 kilograms, and repetitive bending is also not advised. Prolonged standing for longer than ten to fifteen minutes is also not recommended. Sitting for prolonged periods also can be associated with worsening of this condition, as it contributes to further weakening of the core paraspinal muscles.
152What makes the plaintiff very distressed is the fact he is unable to perform many of the activities he used to do at home, being previously a very handy person. Sleeping was significantly affected, and he ended up waking up multiple times during the night.
153Dr Akil thought the injuries were consistent with the incident. He would accept the plaintiff had a prior pre-existing spondylosis in his lumbar spine before 2005, however, the symptoms became more constant after the incident and, therefore, he concluded that event was the main contributing factor to the current condition.
Dr Richard Sullivan, pain specialist
154Dr Sullivan saw the plaintiff in September 2021.
155The plaintiff then complained of pain in his lower back at the beltline bilaterally of a dull aching and sometimes sharp character. The pain was constant, but fluctuated in intensity, depending on his activities. At complete rest, his pain was around 3 out of 10, but exacerbations could be somewhat unpredictable and would cause pain to elevate to 9 or more out of 10, and be described as debilitating. He had experienced a severe episode of such pain about once a month, that would effectively leave him bed bound.
156The plaintiff also had bilateral shoulder pain, which was moderate at rest, or when performing very light tasks with his upper limbs, but significant loading through his upper limbs or performing strenuous or repetitive tasks above chest height would lead to significant exacerbation of his bilateral shoulder pain.
157The plaintiff had six weeks off after the incident and then restricted the loading of goods he could do without assistance due to ongoing pain, principally of his back, but also bilateral shoulders. Essentially, he had experienced restrictions in terms of his ability to engage in strenuous and laborious work since then. He had been able to continue driving despite these injuries, but his limitations extended also into his domestic environment.
158The plaintiff could lift and carry no more than about 5 kilograms for no more than five minutes before he experienced aggravation of shoulder and/or back pain. He could walk about a kilometre before he noticed exacerbation of back pain. He could drive for about sixty to ninety minutes before he had to stop and take a break due to aggravation of back pain. He could not do gardening without exacerbating back and arm pain. He could not perform strenuous or repetitive overhead activities without exacerbating shoulder pain and lower back pain, and if he stood for longer than thirty minutes, he noticed an increase in his pain.
159For pain, he simply took Panamax, as he had had significant side effects from other analgesic medication.
160On examination, there was mild restriction of cervical movement. There was an adequate range of movement of the left shoulder, but a degree of impingement of the right. Range of lumbar movement was adequate but there was tenderness on palpation around the paravertebral musculature bilaterally.
161Dr Sullivan noted the 2018 lumbar CT scan and x-ray of November 2005.
162He thought the plaintiff sustained an injury in the incident whereby he aggravated a likely pre-existing condition of lumbar spondylosis and also probably aggravated an intrinsic shoulder pathology. Regardless, he now had a post-traumatic chronic pain condition affecting his back and bilateral shoulders. He had functional limitations associated with the multiple injuries, which would be consistent with aggravation of lumbar spondylosis and an aggravation of the intrinsic shoulder pathology. He did not have these restrictions prior to the incident.
163Dr Sullivan expected the plaintiff would continue to have ongoing pain in his lower back and bilateral shoulders affecting his functional capacity into the future.
164The diagnoses were aggravation of lumbar spondylosis, likely aggravation of intrinsic pathology in both shoulders, a post-traumatic pain condition of the lower back consistent with aggravation of lumbar spondylosis and characterised by the organic process of central sensitisation and post-traumatic chronic pain condition affecting the bilateral shoulders, consistent with aggravation of intrinsic shoulder pathology and characterised by the organic process of central sensitisation.
165Dr Sullivan thought the injuries were consistent with the described mechanism of injury, that being aggravation of likely pre-existing anatomical derangement of the lumbar spine and presumed pre-existing derangement of his lateral shoulder girdles.
166Pre incident, the plaintiff could work unrestricted on a full-time capacity, with occasional visits twice a year to the chiropractor. Thereafter, he had had significant and persisting limitations in terms of ability to function appropriately within the workplace. He was effectively limited to driving a truck and was not able to engage in strenuous lifting or handling of goods and equipment unless he was receiving direct assistance. He had the capacity to work full time as a truckdriver, but with restrictions, whereby he avoided any lifting, bending, twisting and so forth.
167The plaintiff had an ability to work on a full-time basis as a truckdriver, as long as he could avoid strenuous work, including lifting in excess of 5 kilograms, repetitive bending, twisting or loading through his actual spine or through his shoulders. He could expect to have chronic pain into the foreseeable future. Dr Sullivan would recommend review by a pain specialist service and by an orthopaedic surgeon with respect to the plaintiff’s shoulders.
The Defendant’s medical evidence
168Joseph Banks Medical Centre notes were available from 24 September 1999.
169The note of 25 October 2005 read:
“w/c ; hit by fork lift 25/10/05 ; max pain ; bruise sacrum and iliac spine ; also increased pre-existing L shoulder ; O/E deep tenderness c/w Musculo skeletal basis / strain.”
170A WorkCover Certificate was written.
171On 26 October 2005, there was some improvement in lower back pain and the plaintiff was unfit for lifting. On 28 October 2005, his back had improved, with increased range of movement, and he was to return to work on Monday with greater duties and a certificate was given.
172On 8 November 2005, there was still pain in the left lower back area radiating from the left thigh anterolateral area. There was no paraesthesia.
“?LL3 nerve root impingement ; had X ray of area with chiropracter (sic) = 2 narrow discs; presume fork lift aggravated pre-existing degenerative disc.”
173A certificate was written.
174The next mention of back pain was on 15 March 2008 when Voltaren was prescribed and a lumbar CT scan was arranged. From 6 June 2011 to 2020, there were three attendances where there was a complaint of low-back pain. On 11 March 2020, Dr Downe noted “injured back at work last week”.
Medico-legal
Associate Professor (“Mr”) Anthony Buzzard, general surgeon
175Mr Buzzard examined the plaintiff in February 2014 on behalf of QBE for the purposes of an AMA assessment in relation to the incident with PLA..
176At that stage, the plaintiff’s complaints were right knee trouble and lower back pain.
177The plaintiff reported back pain since the 1970s and 1980s, which was variable and overall, static. The back pain extended down the right leg on the back of it and into the mid-thigh region. He was taking medication for it and had been having physiotherapy for about twenty years.
178The plaintiff was doing his normal work and trying to eliminate the amount of lifting because of his knee and back.
179Mr Buzzard noted the plaintiff had a long history of lower back trouble stemming from twenty to thirty years ago. Although he had quite marked degenerative changes on the plain x-ray, there was no restriction of range of back movement and he only required symptomatic treatment for his back. It would be reasonable he should not be carrying out work involving very heavy lifting.
Dr Chris Grant, psychiatrist
180Dr Grant examined the plaintiff in November 2017.
181The plaintiff told him that he was self-employed until about April or May 2017, but stopped, because ever since he was incorporated, it cost him more money for insurances and he was losing $5 an hour. He closed his business and went immediately into new salaried employment driving a tip truck with his nephew.
182The plaintiff said he had been self-employed for about twenty-eight years, previously as a sole trader in the last three years as an incorporated entity, but still working alone as a 5-tonne truckdriver. He delivered whitegoods, electrical goods, appliances and air conditioners in the Melbourne Metropolitan area full time, with no outside employment.
183The plaintiff reported a fantastic outcome on both knee replacements.
184He had had various back injuries over the years and many years ago, had an epidural anaesthetic, but had not seen a specialist. He had had physiotherapy and, more recently, chiropractic treatment.
185The plaintiff said his major pain issue was then with his shoulders, more the left than the right. His sleep was only interrupted by pain in his shoulders, or if he lay in the wrong position. His knees were now good since his surgery and his back had settled down, as he was no longer doing manual handling.
186Based on the plaintiff’s account of his symptoms, activities and his presentation, there was no diagnosable psychiatric disorder.
Mr Max Esser, orthopaedic surgeon
187Mr Esser examined the plaintiff in October 2021.
188The plaintiff described being hit on the entire left side by a forklift, pushed 5 to 6 metres. Following the incident, he was aware of pain in his lower back, spine, left lower buttock and left hip. He saw his GP and x-rays were arranged, and he had chiropractic treatment for his left shoulder, as well as lumbar spine.
189On examination, the plaintiff described pain and discomfort in the lower back, radiating to the left buttock, and occasionally radiating to the lateral aspect of the left thigh, worse with lifting any objects. Laughing, coughing or sneezing occasionally caused some discomfort. He had no tingling, numbness or localised pain. He was taking no regular medication apart from paracetamol every two to three days for exacerbation of discomfort.
190Occasionally, sitting or leaning could cause discomfort, depending on the chair he was using. He was working full time as a truckdriver. Activities of daily living were not affected, and he occasionally had episodes of back discomfort. He was able to lift a 20-kilogram suitcase, but he was very careful when he did so.
191The plaintiff also described pain and discomfort in his left shoulder, worse with activities, such as abduction or lifting his arm with his elbow straight or flexed. He was aware of some discomfort at night when he slept on his left. He had recently had an MRI scan of his left shoulder organised by Dr Raleigh, who told him he thought the symptoms could be managed non-operatively.
192The plaintiff still had pain and discomfort in his lower back and left buttock, affecting both buttocks. He described some mild back discomfort prior to the incident.
193Pre-injury, the plaintiff also had sarcoidosis. He was being treated for gout and also had hypertension. He had had bilateral knee replacements and he now complained of discomfort in both shoulders, worse on the left.
194The plaintiff described an episode where he had quite significant back pain in March or April 2020 and went to Rosebud casualty. He had had three similar episodes over the last two or three years. One was treated by a chiropractor. The last episode was in Rosebud in 2020, when he required an intramuscular injection for management of what he described as quite severe back pain and difficulty walking.
195On examination, the plaintiff had a well-maintained range of lumbar movement. Power, tone and reflexes of the lower limbs were normal. He had well-maintained movement of both hips. There was minimal medial instability of the right knee and the left was completely stable. He had a well maintained range of cervical movements. There were minor impingement signs on the left shoulder and some restriction in the right upper limb.
196Mr Esser thought the plaintiff had no specific abnormality of the intraarticular pathology of the left hip and his symptoms were referred from the lumbar spine. Lumbar spine movements were well preserved, with flexion, extension, lateral flexion to the left and right two thirds of the normal range. The range of movements of the left shoulder were suggestive of an impingement syndrome but he had a full range of movement.
197Mr Esser concluded the plaintiff had a minor degree of impingement syndrome of the left shoulder, consistent with an intact rotator cuff, which may have some partial fibre tears or a tight coracoacromial ligament.
198The plaintiff reported since the incident, his back pain had been more of a problem and he had had more symptoms.
199Mr Esser thought it unlikely there was a direct relationship between the plaintiff’s current condition and the incident sixteen years ago. Many episodes could have occurred since now and then. The plaintiff reported more symptoms in his back since that time and now. It was difficult to define a specific relationship between that episode sixteen years ago and that current condition. He thought the plaintiff had an impingement syndrome of the left shoulder, almost certainly related to the effects of use of the left upper limb with activities of abduction.
200Mr Esser considered it unlikely there was a relationship to the plaintiff’s current situation from the work incident. He thought the plaintiff had intermittent back discomfort, almost certainly related to degenerative disease rather than the effects of the injury. His impression was left hip symptoms occurred at the time of his low back, with referred pain to the level of the left hip at that time. Movements of the hip were completely normal for the plaintiff’s age. He thought the plaintiff had non-specific back discomfort and no specific abnormality of his left hip.
201Noting the bilateral knee replacements, there was good functioning of both knees and an excellent range of motion. There was only minimal medial instability noted at the right knee.
Claim documentation
202In a Claim Form signed by him on 9 June 2017, the plaintiff noted that severe tearing of muscles and tendons in both shoulders occurred in July 2016 and he stopped work on 13 March 2017, telling the relevant people of struggles with working conditions constantly. He was employed as a subcontractor on a permanent basis and his condition worsened over a period of some weeks. The injury was described as severe tearing of muscles and tendons in both shoulders. He was injured by lifting, pushing and pulling very heavy whitegoods, air conditioning, vanity units and pallets, and associated goods. When injured, he was sorting and moving large heavy objects to be loaded and unloaded onto and off the back of his truck. He was working forty-five to fifty hours a week, earning $28 an hour.
Overview
203The plaintiff’s case is that his present spinal impairment was suffered as a result of heavy work with PLA between 2002-2009 and/ or the incident injury in October 2005.
204While the plaintiff had the need for maintenance chiropractic treatment for his back prior to the incident, dating back to 1993, he was able to engage in heavy work without difficulty.
205There is no dispute that the plaintiff’s work duties during the period of employment at PLA were heavy or that he suffered injury to his back in the incident.
206The injury has been diagnosed as aggravation of lumbar spondylosis.
207However, I must be satisfied, as the Court of Appeal directed in Rowe v Transport Accident Commission[43] and also Filipowicz,[44] that the consequences attributable to either the incident or the course of employment are “serious”. It is not a question of whether there is a material contribution these injuries to the plaintiff’s current condition.[45]
[43][2017] VSCA 377 at paragraph [86]
[44](Supra) at paragraphs [37]-[38]
[45]Filipowicz at paragraph [37]
208This is a particularly difficult task for the plaintiff in this application, as he continued in similar heavy work with another employer from 2009 to 2017. He made no mention of this later job in his affidavits. The contribution of that later work in heavy whitegoods has not been the subject of any real analysis by medico-legal examiners who have provided an opinion on causation.
209While corroborating the plaintiff’s current complaints, his wife made no mention in her affidavit of where the plaintiff was working when he was injured.
210The Court cannot look at the plaintiff’s current back condition globally and consider whether either claimed compensable injury contributes to it. It is not enough for him to establish that his back pain has been more constant since the incident. He must demonstrate that the consequences attributable to either the forklift incident and/or his employment are “serious” as at the date of hearing.[46]
[46] Filipowicz; T39
211The medical evidence in this regard is of limited assistance to the plaintiff. Those examiners relied on do not have a history of his subsequent heavy work with L&P.
212General practitioner, Dr Downe, who has treated the plaintiff since 2002, did not differentiate between the period of work with the employer and employment since 2009.[47] He thought it was difficult to specifically isolate the plaintiff’s injuries into separate entities. In his view, the plaintiff’s injuries were consistent with the workplace repeated impact. The incident was not actually the single primary event leading to the chronic back problem – it was just another contributing event amongst many repeated forces.[48]
[47]T41
[48]T41
213Mr Goldwasser’s analysis was the most detailed but relied totally on the history given to him by the plaintiff.
214The plaintiff told him that work between 2002 and 2009 was the heaviest he had encountered. He had some back problems, but mainly related to the incident. He estimated 10 per cent of his back pain related to work before the employer, 80 per cent to his employment with PLA and about 10 per cent to his work with L&P from 2014 to 2017.[49]
[49]The plaintiff worked there from 2009 to 2017
215Mr Goldwasser thought the plaintiff’s back symptoms appeared to be related to the stresses of his work and there was evidence of multilevel degenerative change in his lower back. The plaintiff probably aggravated his back condition with activities at work, with aggravating tendency to degenerative changes in his back.
216Mr Goldwasser’s conclusion was somewhat confusing. He considered the incident to be a significant contributor to the plaintiff’s back condition, and the major contributor but also said the work duties generally were probably the major contributing factor to his back injury. There was probably a minor contribution with his duties at L&P.
217Mr Goldwasser’s examination predated the recent back spasms which Mr Esser considered when concluding the plaintiff’s current back condition almost certainly related to degenerative change rather than the effects of the incident injury sixteen years ago.[50]
[50]T42
218Dr Akil was asked to only comment on the plaintiff’s back condition, therefore made no reference to his significant shoulder problems.
219Dr Akil had a very limited history. He noted a return to work on light duties after the incident and the plaintiff doing no loading or unloading, and his condition persisted, worsening with time. He left the employer in about 2012 and he also changed his company to a different one later. Dr Akil made no reference to heavy work at L&P.
220Dr Akil simply accepted the plaintiff’s history of symptoms being more constant after the incident and was unaware of the lack of medical treatment in the years thereafter.
221He concluded the incident aggravated, and was the main contributing factor to, the plaintiff’s current symptoms. While mentioning two recent hospital attendances for severe back pain, he did not explain how these attendances were related to the incident sixteen years ago or work with the employer that ceased in 2009.[51]
[51]T42
222Dr Sullivan just had a history of the incident and made no comment as to any heavy work with the employer. He made no mention of employment post 2009. He thought the plaintiff aggravated pre-existing lumbar spondylosis and was suffering from a chronic pain condition relating to the incident.
223Mr Buzzard’s 2014 report does not address this issue. He carried out an AMA assessment relating to the 20 October 2005 injury with PLA – although making no mention of the incident in his report.
224On examination in February 2014, the plaintiff complained of right knee trouble and lower back pain, which had been variable since the 1970s and 1980s.
225The plaintiff had left PLA by then, and Mr Buzzard did not mention the subsequent employer who, by that stage, had employed the plaintiff for five years.
226Mr Esser examined the plaintiff in relation to the incident injury. He had no history of heavy work with the employer or in subsequent employment. He was aware of the recent spasms and the plaintiff’s attendance at Rosebud Hospital.
227Mr Esser accepted that the back was more of a problem since the incident, however, he thought it was unlikely there was any direct relationship between that incident and the plaintiff’s current condition, as there had been many episodes since. Overall, he thought the plaintiff’s current spinal condition was almost certainly related to degeneration.[52]
[52]T40
228Mr Esser’s view fits in well with what has happened with the plaintiff since the incident.
229An ongoing contribution as at the date of hearing from the incident injury or work with the employer is not supported by the plaintiff’s subsequent work history or need for treatment thereafter.
230I found the plaintiff to be an honest, but unreliable witness. He admitted he was confused with the dates in relation to the central issue in this application and had in fact done heavy work with whitegoods as recently as 2016. He is a man despite a multitude of health problems has shown a strong work ethic continuing in truck driving work at the age of sixty-five.
Work post incident
231Having had only six weeks off work after the incident, the plaintiff continued to work for the employer until 2009 doing the same duties with no medical restrictions. He did not require any further time off work.
232Although he maintained work in his next job at M3 logistics was lighter, he agreed that in 2016, he suffered severe tearing of both shoulders “lifting, pushing, pulling very heavy whitegoods – air conditioning, vanity units, pallets and associated goods”. He admitted he must have been confused with the dates.
233A number of examiners were told by the plaintiff he was doing heavy work after he left the employer.
234The plaintiff told Mr Buzzard in February 2014 that he was doing his normal work at the moment, trying to limit the amount of lifting because of his knee and back. He normally had to load and unload the vehicle himself.
235Dr Downe, who has treated the plaintiff since 2002, reported in 2017 that the plaintiff had complained progressively over time of bilateral knee and lower back pain – his truck driving work had predominantly involved the movement of whitegoods – refrigerators, ovens et cetera.
236Dr Poon noted, in 2016, that the plaintiff continued in his job in whitegoods delivery, even though he continued to suffer pain, whether it be in his neck, shoulder blades mid or lower back. In his 2017 report, he noted that the plaintiff continuously twisted and lifted heavy whitegoods in both his work with the employer and later with L&P. It was not until 2017 that the plaintiff had to stop working as a cartage truck driver of whitegoods due to his inability to maintain lifting as he could not rely on his shoulder or lower back for sustained physical work.[53]
[53]Dr Poon
237The plaintiff told psychiatrist, Dr Grant, of being self-employed for about twenty-eight years, previously as a sole trader in the last three years as an incorporated entity, but still working alone as a 5-tonne truckdriver. He delivered whitegoods, electrical goods, appliances and air conditioners in the Melbourne Metropolitan area full time.
238In his 2017 Claim Form for a shoulder injury, the plaintiff described his work duties in 2016 as lifting, pushing and pulling very heavy whitegoods.
239Further, the plaintiff deposed he stopped work in 2017 for various problems but mainly his back. He acknowledged that after his heart attack in 2017, he was told to slow down.
240I accept that the plaintiff has been able to undertake only lighter work since 2017 but this situation is due to a range of health issues, not the incident injury or any injury suffered in the course of his employment with PLA. Further, when asked whether he left M3 Logistics in early 2017 because of his heart attack, he said “I was told that I needed to slow down”.[54]
[54]T18
241It could not be said with his work history until 2017, that as a result of the incident injury or heavy work with the employer, the plaintiff was experiencing significant back pain that interfered with his ability to do heavy work – continuing to work in the same duties for twelve years after the incident.
Treatment
242The plaintiff had chiropractic treatment at Endeavour Hills before and after the incident. From November 2005 to 11 February 2006, he was seen twenty-three times. From 2007 until last seen in June 2011, he attended seven times.
243He attended also saw Dr Poon before the incident, first attending in 1993. Dr Poon noted the incident and reported that the related condition was rectified after receiving chiropractic care. Since that time, Dr Poon has continued to treat the plaintiff for his shoulders and neck as well as his back.
244The plaintiff saw his GP a few times in late 2005 but did not re-attend in relation to any back problems until 2008. The next attendance was in 2011, and there were only three visits from then until March 2020 where his back was mentioned in the context of an injury at work.
245While the plaintiff explained he was not a “complainer”, it is apparent from Dr Downe’s notes that the plaintiff is a man who regularly goes to his GP about his numerous other health issues, but has rarely mentioned any issues with his back.
246He was referred to shoulder specialist, Mr Raleigh, but has not been referred to any specialist for his back.
247While he regularly taking six Panamax, and sometimes twelve,[55] Dr Downe noted in his September 2021 report, that regular analgesia will be required for discomfort in his back, neck, shoulders and knees. The plaintiff has reported the need for much less medication to other doctors, recently telling Mr Esser he was only taking paracetamol every two to three days.
[55] T47
Current position
248I accept that the plaintiff continues to suffer lower back pain, which he describes worsens during the day at work. His shoulder pain also causes him problems at work.
249He has started to experience severe back spasms in recent times – eleven years after ceasing work with the employer – at least one necessitating an attendance at Rosebud Hospital last year.
250The cause of these spasms is unclear, with the plaintiff adamant that they were not caused by his work with his nephew, as both Dr Poon and Dr Downe had reported.
251However, I am not satisfied this situation is a consequence of either the incident injury or the plaintiff’s work for the employer during 2002-2009.
252Further, the plaintiff freely acknowledges that he also has significant ongoing problems with his shoulders – attributing 60 per cent of his pain to his shoulders and the balance to his lower back.
253In Peak Engineering Pty Ltd & Anor v McKenzie,[56] Maxwell P described the difficulty faced when a separate injury is also producing pain and suffering consequences for the claimant, as well as the relevant injury.
[56] Supra
254In such circumstances:
“The Court must decide whether the consequences of the original injury are ‘more than significant or marked, and ... at least very considerable’. For that purpose, it is necessary — so far as the evidence permits — to identify the consequences properly referable to the original injury, and to exclude the consequences referable to the subsequent injury.”[57]
[57] At 1
255The President found that the judge was:
(a) bound to identify, and exclude, the continuing consequences for the plaintiff of the non-compensable injury; and
(b) when the consequences properly referable to the relevant injury were identified, identified them as “serious”.[58]
[58] At 2
256The plaintiff told Mr Goldwasser in 2014 that his biggest problem continued to be his left shoulder.
257He agreed that when he saw Dr Grant in November 2017, his major pain issue was with his shoulders, left more than right. Sleep was interrupted by shoulder pain only. He now also has problems sleeping due to his back three to four times a week.
258He agreed that his shoulder pain was so bad that he saw an orthopaedic surgeon, Dr Raleigh, in 2017, who suggested cortisone injections. His shoulders “are still pretty bad now”. At times, shoulder pain is much worse than the pain in his back.
259There is no report from Mr Raleigh.
260Dr Akil’s report is of little assistance, as he was instructed to comment only on the plaintiff’s lumbar condition. Dr Sullivan did consider the plaintiff’s bilateral shoulder problem, which he concluded contributed to the plaintiff’s functional limitations as well as his lumbar issues.
261Sitting does not cause a problem for his shoulders but if the plaintiff does something like try to mow the lawn, he would have terrible pain. He could not do any serious lifting. His ability to do household tasks is significantly affected by his shoulder condition.
262Although he does so with some difficulty because of shoulder and lower back pain, the plaintiff, now aged sixty-five, continues to work full time with his nephew driving to the quarry. He wears both a back brace and a shoulder brace while working.
263The plaintiff agreed that prior to knee replacement surgery in 2016, his knee was his biggest issue in terms of walking or standing. His knees have been playing up recently.[59]
[59]November 2021 affidavit
264Further, as Dr Downe reported, since 2017, the plaintiff had had some major medical issues which had required hospitalisation and they had overshadowed the previous injuries in terms of clinic consultations. The plaintiff had been required to attend several specialists regarding cardiac, gastrointestinal and renal issues.
265Taking into account all of the evidence, I am not satisfied the consequences of any spinal impairment relating to the incident and/or the course of the plaintiff’s employment with PLA, excluding other non-compensable conditions, are “serious”.
266Accordingly, the application is dismissed.
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