Petkovski, Bragica v Berkeley Apparel Pty Ltd and VWA
[2009] VCC 1470
•20 November 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-08-04179
| DRAGICA PETKOVSKI | Plaintiff |
| v | |
| BERKELEY APPAREL PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 5 and 6 October 2009 |
| DATE OF JUDGMENT: | 20 November 2009 |
| CASE MAY BE CITED AS: | Petkovski, Bragica v Berkeley Apparel Pty Ltd & VWA |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1470 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – injury to the lumbar spine – pain and suffering – loss of earning capacity – causation – Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602 – St Laurence Community Services (Barwon) Inc v Gledhill (2005) 14 VR 622.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R H Smith SC with | Zeljko Stojakovic |
| Mr J Sala | ||
| For the Defendants | Mr P D Elliott QC with | Hall & Wilcox |
| Ms B Y Knoester | ||
| HER HONOUR: |
1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of her employment with the first defendant on or about 22 November 2002 (“the said date”).
2 In running, the application focussed on the plaintiff’s employment after 20 October 1999 until November 2002.
3 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by Section 134AB(37) and (38).
4 The plaintiff brings this application pursuant to clause (a) of the definition of serious injury to be found in Section 134AB(37) of the Act. There, “serious” is defined relevantly as meaning “a permanent serious impairment or loss of a body function”.
5 The body function relied upon in this case is the lumbar spine.
Outline of s.134AB
(i) Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
(ii) The impairment of the body function must be permanent.
(iii) The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, subsections (19) and (38)(e) impose specific burdens in relation to a claim for loss of earning capacity.
(iv) By subsection (38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity 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”.
(v) I 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.
(vi) Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter.
(vii) Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
(viii) Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established.
(ix) Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
(x) I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Grech v Orica Australia Pty Ltd & Anor (2006)14 VR 602 in reaching my conclusions.
6 The plaintiff relied upon one affidavit sworn on 29 June 2009 and gave viva voce evidence. She was cross examined.
7 In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
8 The plaintiff is aged fifty four, having been born on 10 April 1955 in Macedonia.
9 The plaintiff migrated to Australia in 1970, having had minimal education in Macedonia. When she arrived in Australia she initially started working in factories as a machinist and did that work consistently up until 2002, save for two short periods when she had time off to have her family.
10 The plaintiff commenced work with the first defendant in 1988 as a machinist. Her job required her to stitch trousers using an overlocking machine. She had to use her left foot on a pedal on the machine. When she first started this job, she was required to regularly pick up bundles of trousers from the floor and place them on her work bench to then open and sew.
11 The bundles weighed between ten and fifteen kilograms and on average the plaintiff stitched approximately two hundred and fifty trousers per day.
12 Until about 1995 the plaintiff could not recall any previous illnesses or injuries.
13 In about 1995, as it was causing the plaintiff problems lifting bundles from the floor, the first defendant adopted a new system of work. Instead of the work being provided in bundles, a conveyor belt was installed at about the height of the overlocking machine and the plaintiff would slide the bundle of trousers off the conveyor on a needs basis.
14 In examination in chief, the plaintiff explained the type of work she did in the post October 1999 period. She worked on the same machine, save for when she was on light duties, when she worked on the binding machine. She was seated, constantly tilted forward. Her arms were lifted on the side and she could not rest them as she was constantly pushing her arms forward with the material into the machine. She started work at 7.30 am and finished at 4.15 pm, having half an hour off for lunch and a ten minute break in the morning and afternoon.
15 After 2000, the trolley system replaced the conveyor system. This system was in operation when the plaintiff ceased work in 2005. There were two shelves on the trolley. The bottom shelf was about a foot off the ground and contained pockets and zips. The top shelf was about the height of the witness box, about six inches higher than the table on which the plaintiff sewed.
16 Maybe five or six trolleys were brought from the cutting room from which the machinists took the material one by one. The plaintiff would get the material from the trolley from the left side and put it on the machine and commence to sew leaning forwards.
17 In re examination, the plaintiff confirmed that the small parts of the trousers were on the bottom level of the trolley and she had to bend to the left, right down to the bottom of the trolley, twisting and bending to get them.
18 On average it took twenty minutes to sew one bundle. In that time the plaintiff had to bend to the lower shelf two or three times. The plaintiff had problems with her back doing that task.
19 In cross examination, the plaintiff said she did work involving lifting bundles from the ground for about two years at the start of her employment with the first defendant when she was sewing Country Road items. It was towards the end of her employment that the first defendant gave her another machine so she did not have to cut with scissors. She kept on using the pedal.
20 When the conveyor belt system was introduced in 1995, the plaintiff would take the trousers from the conveyer belt with her left hand, roll them in front of her and start working on them. It was well before 2003 that this conveyer belt was introduced.
21 The trousers were clipped on the conveyor rail and the machinist would pull them along and then take the material from her left side. She would have to take a pair of trousers from the clip, put them in front of her and then sew. She had to get up and unclip the trousers. When she finished she turned and put the trousers back.
22 If there were one or two pairs of trousers on the clip, she would take them down. If there were five or ten pairs she had to get up to take them down and sew them.
23 When the trolley system came into operation the plaintiff had to turn around and pick up the bundle from the trolley and place it on the machine. It might take up to fifteen to twenty minutes to do a big bundle.
24 The plaintiff explained that the trousers were thrown over the trolley, they were not clipped to it. She then agreed that she would pull a bundle of trousers across her waist whilst still attached to the trolley and then sew small sections while it was still clipped to the trolley. She could not do the bigger pants that way. She had to take them off the trolley to get them on the machine because you could not reach to sew the whole big pants in that way. She had to work and lean forwards and push with a lot of pressure.
25 The plaintiff deposed that in June 1994 she started slowly developing problems with her lower back because of the repetitive nature of the work duties she had been doing since commencing employment with the first defendant in 1988.
26 At around June 1994, her back pain became so bad she took six weeks off work to recuperate. She did not make a WorkCover claim. She also attended her general practitioner, Dr Vizec, who prescribed medication.
27 In July 1994, Dr Vizec referred the plaintiff to Mr Kevin King, orthopaedic surgeon, who organised a CT scan. The plaintiff last saw Mr King in September 1994.
28 After that period off work, the plaintiff returned to normal duties. She believed that she complained once again to Dr Vizec in April 1997 of some back and hip pain, at which time he prescribed medication and cream, and the plaintiff returned to work doing her normal duties.
29 The plaintiff’s back pain eventually dissipated and she was able to do her normal work duties without too many problems.
30 However, by about 1999 early 2000, the plaintiff once again began suffering niggling pain in her lower back. Nevertheless, it was essential for her to keep working financially so she stayed at work without taking any time off.
31 It was not until 2002, when the plaintiff felt that her back and left leg pain had become so bad, that she requested assistance with the performance of her duties, having advised her supervisor of her back problem. This request was initially denied and the plaintiff was obliged to continue her normal duties. By November 2002 the plaintiff was suddenly experiencing significant back and leg pain which was disabling and caused her great difficulty moving.
32 After finishing work each day, the plaintiff had great difficulty standing up because of severe back pain which was far worse and serious than any back pain she had previously experienced.
33 The plaintiff eventually was unable to continue working and she submitted a Claim for Compensation in November 2002. She was off work for three months. Initially the claim for her back and legs was accepted and she received weekly payments. The plaintiff could not recall who filled out her claim form but she thought it was Mr Webb in the office.
34 It was noted on the claim form that that the date of injury was 8 November 2002. It was the same injury/condition as in 1994 and recurred in April, and November 2002.
35 In answer to the question “had she had any previous pain/disability in the area of her present injury or condition” it was noted “same injury as occurred as a result of work in 1994”.
36 The plaintiff could not recall anything about the injury register form dated 8 April 2002 nor could she remember telling Mr Webb she was having lower back pain. She did not know if the hand writing on the form was hers.
37 The plaintiff’s compensation payments ceased following an examination by Mr Buzzard on behalf of the insurer, as he considered that the plaintiff’s injury was not work related.
38 In about February 2003, having had three months off work, the plaintiff returned to work on reduced hours working four hours a day, five days a week, the pain having subsided somewhat. By the end of 2003 she was able to increase her hours to normal hours of eight hours a day on normal duties.
39 Even so, the plaintiff found it difficult continuing to work but she had to continue doing so for financial reasons and she took the occasional day off when her pain became unbearable.
40 When the plaintiff returned to work in February 2003 the first defendant changed the workload of its machinists and the plaintiff was given two machines to work on to do the job she had previously being doing on one machine.
41 From 2003 to 2005, the plaintiff continued to attend Dr Vizec, who prescribed painkillers. The plaintiff deposed that she was worried about the security of her employment and specifically asked Dr Vizec not to mention to the first defendant that she was complaining about pain in her back and leg, and she did not obtain any certificates of incapacity in this period. By early 2005, Dr Vizec told the plaintiff that her condition was worsening doing the same repetitive duties.
42 On 22 July 2005, the plaintiff was advised by the first defendant that her employment had been terminated and that she, along with a number of other employees, had been retrenched. The plaintiff had been given no warning that she was to be retrenched
43 In cross examination, the plaintiff agreed that there had been discussions in the factory prior to July 2005, some time after 2003, about machinists being made redundant. She agreed she took a redundancy package in 2005 and she put in a WorkCover claim in November after she left work. She thought maybe the discussions took place in 2004, but she did not know. There was no talk that all the machinists were going to go. The work was slowing down. The machinists did not all go at the one time, it was over about three or four different periods of time. There were still machinists working for the first defendant at present.
44 The plaintiff could not remember the circumstances of putting in a second WorkCover claim in 2005 and whether she had spoken to anyone about it. She thought that things had finished and that was why a new form had to be put in.
45 Since 2005, the plaintiff has been in receipt of a disability pension. The first time the plaintiff went to Centrelink her application for benefits was knocked back and some years later it was accepted.
46 She has not made any attempt to retrain or look for employment because she did not think she would be capable of retraining or working, having only ever done machinist type work.
47 Since late 2002, the plaintiff has been prescribed Celebrex, Tramal and Mobic. Initially she took this medication regularly but then stopped taking it because of the side effects.
48 The plaintiff sees Dr Vizec once a month. The plaintiff’s medication has recently been changed to Panadeine Osteo because of her stomach problems. In addition, the plaintiff takes Panadeine Forte twice a day up to two times a week.
49 In 2002, the plaintiff regularly attended a masseur and in early 2007 she attended a chiropractor on a couple of occasions without much assistance. She still does some of the exercises recommended by the chiropractor.
50 The plaintiff continues to suffer from constant pain in the left side of her back and pain and coldness in her left leg. Sometimes her left leg goes completely numb and the pain becomes unbearable. She often feels depressed about her pain and restrictions.
51 The plaintiff is not as active and physically able to do things as she used to and sometimes she cannot stand for long periods. She has to do tasks slowly to minimise pain. She cannot do the vacuuming and heavier housework has become difficult, although she continues to do it to keep the house clean.
52 The plaintiff does the washing but this aggravates her pain. She finds it very difficult to carry the clothes basket and make beds. She has difficulty putting on her shoes and socks. She can sit but when she stands her pain levels become unbearable. She cannot tolerate driving long distances.
53 Prior to the onset of back pain in 1994, the plaintiff cannot recall any previous injuries or illness.
54 The plaintiff believes her back and leg pain became worse in November 2002 than it had been in 1994 and it was at that later time that she felt she was severely handicapped. In 2002, the plaintiff’s pain would have been around eight or nine out of ten. In 1994, it was less so, maybe at most five.
55 There has been no improvement in her back and leg pain since ceasing work. In fact her pain has worsened.
56 The plaintiff believes her back problems were in part due to the repetitive nature of the duties she was required to perform with the use of the pedal and the fact that there was no rotation and that initially she was required to perform a considerable amount of lifting of bundles of trousers.
57 The plaintiff was cross examined about the level of activity which she had described to Mr Simm in July 2008. She agreed she had told Mr Simm that she tried to drive, wash, and dress and feed herself without assistance when she did not have pain. She did easier, lighter, household and shopping tasks and she would do one or two bags of shopping. Her husband did the vacuum cleaning and hung out the washing.
58 Her husband was off work, injured, and they helped each other. He was not that bad that she had to look after him.
59 The plaintiff has not looked for a job since the redundancy in 2005 and has not done any rehabilitation.
60 She tries to do what she can, little things. She sees her parents who live nearby, as do her brothers, and drives over to see them. She just goes to get the bread and milk. Their son, who is thirty, lives at home.
61 The plaintiff walks but not fast. She does not like walking up and down the street. She tries to do some exercises at home, taught to her by the physiotherapist. In re-examination, she explained walking causes pain.
The Plaintiff’s Medical Evidence
62 The plaintiff first saw Dr Vizec of the Medical Centre in St Albans for management of her back problems on 19 August 2002. She had been a patient at that clinic since 1991.
63 In August 2002, the plaintiff reported that she had suffered a recurrence of lower back and left leg symptoms from a back injury in 1994. She was subsequently seen on 21 August 2002, at which time x-rays were carried out.
64 Over the next few months it was noted the plaintiff’s symptoms eased but she suffered an exacerbation and was seen on 13 November 2002, at which time further anti-inflammatories were prescribed and an appointment was made for her to see Mr Clifford, orthopaedic surgeon.
65 It was noted that on 19 November 2002, the plaintiff decided to make a WorkCover claim as her problems had developed over a period of time during the course of her work, and an appropriate certificate was issued. The plaintiff returned to work on 9 December 2002, but only managed three hours because of increasing left leg pain.
66 As of December 2002, Dr Vizec thought the plaintiff was totally incapacitated and unfit for pre injury or other employment.
67 As of October 2007, Dr Vizec thought the plaintiff’s symptoms and clinical signs were suggestive of peripheral nerve root irritation and he diagnosed chronic back pain with underlying S1 nerve root compression. At that stage he thought the plaintiff was incapacitated for her pre-injury duties or any other suitable duties.
68 In his most recent report of March 2008, Dr Vizec noted that there was a recurrence of the plaintiff’s lumbar and left buttock symptoms in July 2005 and that she was managed by Mr Ton, orthopaedic surgeon, during that period, who suggested she have an L5-S1 microdiscectomy. He noted a new claim was made in November 2005 which was rejected.
69 Dr Vizec noted that the CT scan of May 2006 again confirmed L5-S1 disc pathology with a clinical diagnosis of mechanical back pain with persistent S1 radiculopathy.
70 Dr Vizec reported that the plaintiff suffered further exacerbations of back pain in July and October 2007, and most recently in March 2008.
71 Dr Vizec considered the plaintiff’s back problems developed over a period of time during the course of her work and that she was totally incapacitated and unfit for pre injury duties or any suitable duties. He considered she required lumbar surgery as suggested by Dr Ton. Dr Vizec thought the plaintiff may then have a chance or returning to paid employment even though she would probably remain unfit for manual and labouring duties.
72 The plaintiff has continued to regularly attend Dr Vizec for assessment, treatment, documentation and certificates. She has continued to complain of left lumbar sacral and sacroiliac back pain with referral down her left leg.
73 The plaintiff tendered the clinical notes of Dr Vizec’s practice.
74 In 1994, there were ten entries relating to the plaintiff’s lumbar spine.
75 On 6 August 1996, the plaintiff complained of a lot of backache and her husband claimed she could not get out of bed.
76 On 21 April 1997, there was a discussion in relation to “the work situation”. The plaintiff was worried about possible job closures and complained of chronic back and hip problems.
77 On 19 August 2002, it was noted there was a recurrence of lower back and left leg pain, developed over time. There were ten further attendances during that year relating to the lower back.
78 On 3 January 2003, some little improvement was noted.
79 On 22 January 2003, it was noted weekly payments were terminated.
80 There were entries during 2003 as to the plaintiff’s ability to cope at work. On 20 February 2003, it was noted the plaintiff was working alternative duties four hours a day and her back and leg pain were worse in the mornings. On 24 February 2003, she was not managing her six hour shift and it was suggested she try four hours. In April 2003, it was noted she was managing four hours a day, and a similar notation was made in May.
81 As of August 2003, the plaintiff was working six hours a day and that situation was clinically unchanged as of 15 August 2003, and by September 2003, she was working normal duties, complaining of lumbar and L5-S1 pain. She was noted to have pain free movement in October 2003, and in November 2003 was noted to be much the same, working normally with no heavy work, and was able to move freely.
82 There were no entries in 2004 relating to the plaintiff’s lumbar spine.
83 On 1 July 2005, it was noted that the plaintiff had had a recurrence of lumbar and left buttock pain and she was referred for a CT scan.
84 On 17 July 2005, it was noted there was a disc protrusion at L5-S1 impinging on the nerve root and the plaintiff was given Mobic.
85 There were further attendances in July, August, September and October 2005 where reference was made to Mr Ton’s suggestion of surgery.
86 On 14 November 2005, it was noted the plaintiff wanted to make a new claim in relation to her back injury of 2002. There were left leg symptoms suggestive of nerve root irritation.
87 On 25 November 2005, the plaintiff continued to complain of back and left leg pain and clinically was unchanged. These entries continued during 2006.
88 The plaintiff was referred to Mr Clifford, orthopaedic surgeon, by Dr Vizec in September 2002. The plaintiff told Mr Clifford that some seven or eight years ago she developed pain in her low back going down her left leg which settled somewhat and more recently had returned.
89 On examination, he noted a decreased range of lumbar movement in all directions to a marked extent. Straight leg raising was restricted to seventy degrees bilaterally and there was no neurological deficit in the lower limbs.
90 He noted a CT scan showed there was an L5 disc central prolapse with what could be a sequestrated fragment compressing on the left S1 nerve root. There was also a bulge at L4-5 to a considerable extent and he noted the CT scan did not appear to have changed significantly from a report the plaintiff had of one done several years earlier.
91 At that stage he thought it reasonable for the plaintiff to continue with conservative management and he thought she was likely to improve considerably in the future.
92 Mr Clifford reported to Dr Vizec on 18 December 2002, having re examined the plaintiff. At that stage she complained of low back pain radiating to her left buttock, and restriction of activities. Her straight leg raising was still restricted to thirty degrees but she managed to sit to a much greater level. He commented that neurologically, her state appeared reasonable and he suggested ongoing conservative treatment.
93 Mr Ton’s clinical notes indicate he first saw the plaintiff on 23 August 2005 when she presented with a three year history of intermittent low back pain radiating into the left leg. He noted that the problem started gradually on a background of longstanding lower back pain since 1994 and since then it seemed to be aggravated by erect posture, bending and twisting and was relieved by lying down.
94 There were further examinations on 18 October 2005, 27 June 2006 and 19 December 2006. Mr Ton diagnosed mechanical back pain with persistent radiculopathy.
95 On the most recent examination on 19 December 2006, the plaintiff reported minimal changes in symptomology and she had continuing back and leg pain. Mr Ton noted clinical examination revealed the range of motion was poor due to pain with persistent nerve root irritation. He offered to refer her to Austin Health Surgery but she declined.
96 In a more detailed report, Mr Ton noted that the plaintiff’s problem started at work in 1994 with constant peddling and lifting of bundles of trousers. He noted that in 2002 she had another episode of severe back pain when she had to take three months off and she returned to modified work. The plaintiff told him that she resigned in 2005 because of severe low back and left leg pain.
97 Mr Ton noted that the CT scan of the lumbar spine taken on 29 May 2006 showed enlargement of the disc herniation at the L5-S1 level and further degeneration at the L4-5 level. He offered nerve root compression surgery which he hoped would improve the plaintiff’s leg pain and numbness.
98 As of that last examination, Mr Ton considered the plaintiff had limited capacity for manual work or her pre injury employment. He noted with a successful surgical outcome, natural history of the condition was the slow resolution of back pain and that in most cases patients would be able to return to modified work three to four months after surgery, with full duties in four months. He noted there may be recurrent attacks of back pain over the following two to five years with less degree of severity and frequency, and that each recurrence may vary from a few weeks to a few months in duration.
99 In his view, overall prognosis was good with the plaintiff’s current clinical situation, and he considered medical imaging confirmed single level disease and that the plaintiff’s pain should respond well to surgical decompression.
100 It was his concern, however, that as the plaintiff’s condition had persisted for more than four years and her spine may have been deconditioned, it may not improve clinically. He believed the plaintiff would be able to return to a working environment that did not involve heavy lifting and bending as a recurrence of the condition was common if she was placed back in the same working environment.
101 The plaintiff was examined by Mr Brendan Dooley, orthopaedic surgeon, on behalf of CGU Workers’ Compensation Insurance on 16 April 2007. The plaintiff told Mr Dooley that she had started working as a sewing machinist in 1988 and had problems with her back and left leg in 1994 and was off work for six weeks until her symptoms settled. She told him the work was repetitive using a pedal machine sewing pre cut pieces of material to make men’s trousers.
102 In April 2002, the plaintiff noted an increase in her left leg pain and ceased work in November 2002. After three or four months she returned to light duties on a gradual basis, later working eight hours a day. The plaintiff ceased work on 21 July 2005 and had not sought alternative work since.
103 On examination, straight leg raising to the left was reduced to fifty degrees. Neurological examination of the lower limbs revealed normal reflexes but there was a definite weakness of great toe extension and on extension of the other toes, with decreased sensation on the dorsum of the left foot. The plaintiff also described numbness in the proximal part of the limb on a non anatomical basis but he was of the opinion there was definite organically based radiculopathy affecting her left leg.
104 Mr Dooley viewed the CT scans of 4 July 2005 and 27 May 2006 which, in his view, showed a large unchanged paracentral disc protrusion at the lumbosacral level on the left side with probable compression of both the left lumbosacral and L5 nerve root as it emerged from the theca.
105 Mr Dooley thought the plaintiff suffered a prolapsed lumbosacral disc on the left side causing back pain and left sciatica with radiculopathy.
106 Mr Stanley O’Loughlin, orthopaedic surgeon, examined the plaintiff on 8 April 2008. She told him that in around 1994 or 1995 she noticed discomfort in her left buttock with associated lower back pain mainly on the left as a result of using a left footed pedal and having to bend down to pick up trousers.
107 Despite her back pain, she continued working until approximately November 2002, when there was a significant increase in her lower back pain and left buttock and left leg pain.
108 After the episode in 2002, the plaintiff eventually returned to work on a part time basis and gradually increased her hours. In about July 2005, her job was terminated and she was given a redundancy package.
109 The plaintiff told Mr O’Loughlin she had lower back pain present to some extent all the time, radiating into her left buttock and down to her foot.
110 On examination, the plaintiff was slightly tender in the low back and movement of the lumbar spine was limited. Straight leg raising was to seventy degrees on the right and sixty degrees on the left, producing some back discomfort. The plaintiff had difficulty raising her bodyweight on the toes of her left foot. Sensation was normal on the right side but appeared to be slightly diminished on the left side over the outer side of the left calf.
111 Mr O’Loughlin viewed the CT scans of 4 July 2005 and 27 May 2006. He noted there was a large disc prolapse at L5-S1 in both scans which was more to the left and appeared to impinge on a left sided nerve root, probably L5.
112 In Mr O’Loughlin’s opinion, the plaintiff had a disc prolapse at L5-S1 on the left side caused by work which involved repetitive use of her left leg associated with a lot of twisting and turning with associated bending. He noted the disc prolapse may have occurred in a graduated way. He considered it most likely the plaintiff had a minor disc injury in the mid 1990s when her symptoms first commenced, and then in November 2002 when her pain became very severe she was disabled and the disc prolapse then became more significant.
113 Mr O’Loughlin was then forwarded the plaintiff’s affidavit, the report of Dr Wilkie, the 1994 CT scan and the x-ray and CT scan of August 2002.
114 Mr O’Loughlin noted the 1994 CT scan demonstrated a large central to left sided disc prolapse at L5-S1 and there was some compression of the left S1 nerve.
115 In his view, that would indicate that when the plaintiff first complained of lower back and left buttock pain in 1994, this prolapse was directly related to her work which involved lifting, using a pedal and sitting bent. He considered it would be reasonable to presume that this was the cause of a primary disc injury. The plaintiff had a flare up of symptoms in November 2002 when the pain became more severe.
116 Mr O’Loughlin noted the plaintiff’s continued employment involved a lot of repetitive bending, pedalling in a bent position, twisting and turning and had aggravated and further increased the damage to her disc at L5-S1 and led to the development of secondary osteoarthritic changes in the facet joints. There was also spinal canal stenosis which had developed due to the size of the disc prolapse with scarring and chemical irritation of the nerve roots. He thought that the 1994 primary injury had been aggravated with continuing work since then, and particularly after 20 October 1999.
117 He noted the history he received was that the plaintiff was only able to work part time after November 2002, and that in July 2005 her job was terminated.
118 In Mr O’Loughlin’s view, the injury had resulted in an incapacity for employment. He thought the plaintiff should not perform any activity involving twisting, turning, lifting or bending and it was unlikely she could return to work as a machine operator. He thought she could possibly work in light sedentary work but that would have to be a position where there was flexibility to change position and move around.
119 Mr Brian Barrett, orthopaedic surgeon, first saw the plaintiff on referral from Dr Velkov in April 2009.
120 The plaintiff told him that she had been working for the first defendant for seventeen years when she complained of low back pain in November 2002. The plaintiff told him she returned to part time work after three months off and was working full time by late 2003.
121 The plaintiff told him her low back pain and left leg pain continued and the factory subsequently ceased sewing machining and downgraded the workforce and she had remained off work continuously since 22 July 2005.
122 On the initial examination, the plaintiff complained of fluctuating low back pain and pain radiating into the left buttock, left posterior thigh, left lateral calf, as far as the left foot and toes.
123 The plaintiff told Mr Barrett she had experienced some mild intermittent low back pain earlier in 2002 but had not previously sustained any significant spinal injuries.
124 On examination, the plaintiff’s lumbar movements were limited and she stood in slight forward flexion. All lumbar movements produced sudden stabs of pain in the left buttock area.
125 There was some moderate left lower lumbar tenderness noted while neurological examination of the lower limb revealed some slight weakness of the left calf muscle power and difficulty walking on her tip toes. Sensory testing revealed some depressed sensation in the left lower limb, maximal in the left L5 and L1 dermatome region.
126 Mr Barrett had available to him the plain x-ray of 21 August 2002, a CT scan of the same date, CT scans of 4 July 2005 and 27 May 2006 and an MRI scan of the lumbar spine taken on 19 May 2009.
127 In Mr Barrett’s opinion, the plaintiff had sustained disruptions of her two lower lumbar intervertebral discs, particularly at L5-S1, the symptoms of which came on in the course of her work in November 2002.
128 Mr Barrett noted clinical, orthopaedic and radiological examinations of the plaintiff, including her serial radiological film, revealed a steadily worsening condition, particularly at the L5-S1 disc level, now with significant posterior disc bulging and marked narrowing at the L5-S1 disc level, all consistent with her ongoing symptoms and disability.
129 In his view, the major injury occurred at L5-S1 where there had been a significant and mainly left sided disc prolapse increasing in severity over the years, with now marked narrowing at that level.
130 In Mr Barrett’s view, the injury had been serious and resulted in a permanent incapacity for any return to pre injury employment. He noted lumbar disc disruptions of this type have minimal capacity to heal or repair and that that was well illustrated when you followed through the serial radiological films.
131 In Mr Barrett’s view, the plaintiff had no capacity to return to her pre injury employment and she had no capacity to return to even light part time or otherwise suitable employment permanently.
132 He noted the plaintiff was not prepared to consider fusion surgery.
133 Having been provided with the August 2004 CT scan, Mr Barrett reported in July 2009 that the plaintiff had a significant lower disc protrusion present since at least August 1994.
134 Mr Barrett re examined the plaintiff for medico legal purposes in August 2009. The plaintiff told him her symptoms remained the same as on the earlier examination.
135 On examination, lumbar movements were very limited and produced low back pain radiating to left buttock. There was marked left buttock tenderness, straight leg raising was to seventy degrees on the right and sixty degrees on the left. There was some slight depression of the left ankle jerk reflex in comparison to the right. Testing of sensation in the lower limbs showed some depression of sensation in the left lower limb, maximal in the left L5-S1 region.
136 Mr Barrett noted he had studied the diagnostic imaging report of the 10 August 1994 CT scan which clearly identified a significant lower lumbar intervertebral disc disruption and protrusion which would cause low back pain and left L5-S1 nerve root sciatica.
137 Having re examined the plaintiff and seen the further information, Mr Barrett concluded it was clear the plaintiff had sustained a significant lower lumbar intervertebral disc disruption at L5-S1 at least as long ago as August 1994.
138 He repeated his view, that looking at subsequent films revealed a steadily worsening condition, particularly at the L5-S1 lumbar disc level consistent with a history of injury and the plaintiff’s ongoing symptoms and disability.
139 In Mr Barrett’s view, the plaintiff’s employment between 20 October 1999 until July 2005 included a number of episodes of aggravation and increased symptoms. Each episode worsened her disability up until the time she realised she could not continue with her work in July 2005 and accepted a redundancy.
140 Mr Barrett confirmed his views as to causation and the plaintiff’s employability and considered the incapacity of the plaintiff to return to work was profoundly related to the nature of the work, particularly in the period 20 October 1999 to July 2005.
Investigations
141 A CT scan of the lumbar spine was taken on 10 August 1994. At L4-5 there was some mild diffuse disc bulging evident, extending into the neural exit foramina. It was slightly more prominent within the left neural exit foramen and there was no evidence of thecal compression at L4-5.
142 At L5-S1 there was a large central and left posterolateral disc protrusion which was compressing the left anterior and lateral aspect of the theca. It was probably also compressing the left S1 nerve root as it emerged from the theca. It appeared a little posteriorly displaced and it was noted it may be swollen at the level of the upper aspect of S1. There was no bony canal or lateral recessed stenosis demonstrated.
143 An x-ray and CT scan of the lumbar spine were taken on 21 August 2002. It was concluded that there was mild to moderate L5-S1 canal stenosis secondary to a large left L5-S1 disc prolapse and mild to moderate facet joint arthritis. Impingement of the left L5-S1 nerve root was noted. There was a diffuse L4-5 disc bulge without significant canal stenosis.
144 A CT scan of the lumbar spine taken on 4 July 2005 showed postero lateral disc protrusion to the left at L5-S1 which was impinging on the left exiting nerve root.
145 A CT san of the lumbar spine taken on 29 May 2006 showed moderately severe lumbar canal stenosis secondary to a large left L5-S1 disc prolapse. That appeared to have progressed since 2005. “?left S1 nerve root impingement.” An MRI scan of the lumbar spine was recommended. There was a diffuse L4-5 disc bulge without significant canal stenosis.
146 An MRI scan of the lumbar spine taken on 19 May 2009 showed moderate volume disc bulge at L5-S1 with a left paracentral component which contacted but did not displace or compress the S1 nerve root within the lateral recess.
Claim Documentation
147 CGU Workers’ Compensation wrote to the plaintiff on 7 May 2007 advising liability had been accepted for the plaintiff’s claim pursuant to Section 104B in relation to back (exacerbation of constitutional disc prolapse).
The Defendants’ Medical Evidence
148 Mr Buzzard, general surgeon, first examined the plaintiff on 16 December 2002.
149 The plaintiff told him her first trouble started in 1994 when she had pain in her left leg associated with pins and needles. That happened gradually and spontaneously and there was no particular accident.
150 The plaintiff told Mr Buzzard that in April 2002 she started to experience strong pain in her left leg and low back with no particular injury. In between 1994 and that date she had, from time to time, further symptoms and apparently sought massage but felt much better. In June 2002, the plaintiff again felt really bad and was referred to Mr Clifford.
151 On examination, the plaintiff complained of pain from the left buttock extending down the left leg to the toe. She had experienced left leg trouble first in 1994.
152 Mr Buzzard noted that the plaintiff started working for the first defendant about fourteen years ago. Her job was to make men’s trousers which appeared to him to be a light job, in that it was sedentary.
153 The plaintiff brought with her the report of x-rays dated 10 August 1994 and 21 August 2002.
154 On examination, left straight leg raising was to forty degrees. There was some tenderness in the low back region to light palpation. There was restricted lumbosacral movement. There was diminished but not absent sensation involving the whole of the left lower extremity.
155 In Mr Buzzard’s view, the plaintiff’s employment, which appeared to be light work, was not the cause of her present problem. He considered the plaintiff’s present problem appeared to have been spontaneous in 1994 with subsequent spontaneous worsening in 2002. He noted there was no evidence of any accident in 2002.
156 Mr Buzzard considered there was also some degree of functional overlay associated with the plaintiff’s presentation. He noted that could be the only explanation for the pattern of diminished sensation over the left lower extremity.
157 Mr Buzzard thought there was a reasonable argument for the plaintiff having surgical treatment of the lumbosacral junction given her worsening symptoms, and that such would be in the form of a laminectomy. He considered the difficulty with such a procedure would be that the plaintiff’s problem was longstanding, and on that basis he thought it would be reasonable to continue conservative treatment and possibly an attempt of epidural of steroids.
158 Mr Buzzard thought the plaintiff’s back was such that she could not be involved in a job lifting, bending and stooping. In other words, she had a light work back and would be able to carry out her normal duties. Mr Buzzard drew attention to the plaintiff’s husband’s problems which he thought may be of some significance in her presentation.
159 Mr Buzzard was subsequently forwarded an x-ray of 21 August 2002, a return to work program and a report from Dr Vizec dated 16 December 2002.
160 Mr Buzzard confirmed this further information did not cause him to change his opinion that the plaintiff’s employment was not a significant contributing factor to her condition and did not still materially contribute thereto. Mr Buzzard considered the return to work program was appropriate.
161 On 23 June 2003, the Medical Panel found that the plaintiff was suffering from a left sided L5-S1 disc prolapse with referred pain into the left leg without radiculopathy but considered this condition was not relevant to any claimed back injury. In the Medical Panel’s opinion, the plaintiff’s current medical condition did not result from, and was not materially contributed to, by any claimed injury.
162 Dr Clark examined the plaintiff on 14 December 2005.
163 The plaintiff reported no specific work incident as causing her back and leg pain and said it was a gradual onset and had continued to bother her since the first episode of pain in 1994.
164 The plaintiff told Dr Clark that in 2002 she had a similar episode of back pain of approximately three months when she was investigated and was off work. She returned to work on alternative duties and restricted hours until November 2003, when she returned to full time work. She continued that work on alternate duties until July 2005, when her employment was terminated.
165 The plaintiff told Dr Clark she had intermittent back pain throughout that period. She said her pain was now constant and affected her lower back and radiated into all of the left leg.
166 Dr Clark was provided with the CT scans of 21 August 2002 and 4 July 2005 which showed evidence of an L5-S1 disc protrusion impinging on the left exiting nerve root consistent with the plaintiff’s clinical signs and symptoms. He was not provided with the 1994 CT scan.
167 On examination, the plaintiff showed very limited movements in all directions. She professed sensitivity on palpation of her spine from the mid thoracic region to her sacrum. There was no palpable spasm of the paraspinal muscles.
168 Weakness of her great left toe extensor was demonstrated when compared to the right, suggesting presence of an S1 radiculopathy as described by others.
169 Dr Clark noted there was evidence of abnormal illness behaviour in the plaintiff’s presentation.
170 Dr Clark considered the plaintiff had degenerative spinal disease with evidence of a lumbosacral disc prolapse causing sciatica in her left leg. He noted a reference to her previous compensation claim for the same condition and considered her current condition was related to the previous injury.
171 In Dr Clark’s view, the plaintiff had chronic back pain for which she required little treatment currently but he did not consider she had a current work capacity.
172 Mr Rodney Simm, orthopaedic surgeon, has examined the plaintiff on two occasions. He first saw her on 21 July 2008, and more recently examined her on 23 June 2009.
173 The plaintiff told him of her work as a machinist of men’s suits. She told him that for many years she sat at a machine which was operated with a foot pedal. The suits were placed in a pile on the floor and she had to lift the pile up to the machine, attach the material and then stack the suits into another pile and bundle them together. At some later stage the suits were delivered with an overhead delivery system and it was no longer necessary for her to undertake bending and lifting.
174 The plaintiff told Mr Simm she first developed lower back pain in 1994 and in the years following, until 2002, she had recurrent symptoms, occasional time off work and she may have taken medication but she did not seek formal treatment until April 2002.
175 He noted her subsequent return to work and the fact that she was on full time duties as at her redundancy in 2005.
176 On re examination, the plaintiff told Mr Simm that she suffered from constant pain in her lumbar back with pain radiating around the left hip and buttock and down to her toes.
177 On examination, there was moderate restriction of thoracolumbar movement with complaint of pain on all movement. There was tenderness in the left sacroiliac region. The plaintiff reported diminished pin prick sensation throughout the left lower limb which Mr Simm noted was non anatomical.
178 Mr Simm reviewed an MRI scan of 20 May 2009 which showed advanced longstanding L5-S1 lumbar disc degeneration with disc space narrowing and irregularity. He noted there was loss of signal and significant posterior disc protrusion with left sided features. That protrusion contacted but did not displace the left S1 nerve root. There was mild disc desiccation consistent with disc degeneration at L4-5 and there was no significant disc protrusion at that level.
179 In Mr Simm’s view, the diagnosis was a left sided postero lateral L5-S1 lumbar disc prolapse with left S1 nerve root irritation but no clinical signs of left S1 radiculopathy. He noted prolapse of the degenerate L5-S1 lumbar intervertebral disc was evident on a CT scan of the lumbar spine dated 10 August 1994. In his view, the degree of prolapse at the degenerate L5-S1 lumbar disc had remained largely unchanged since that time.
180 Mr Simm attributed any apparent deterioration symptoms from the time the plaintiff ceased work to some amplification of an illness response, possibly in association with age related progression of degenerative lumbar disc pathology.
181 Mr Simm noted the plaintiff had a significant impairment and loss of function of the back with minor secondary impairment and loss of function of the left lower extremity arising from advanced L5-S1 lumbar disc degeneration with associated disc protrusion. He did not define this impairment as being related to a compensable injury. He noted the plaintiff had an entrenched pattern of symptoms which would not be influenced by treatment.
182 In Mr Simm’s view, the plaintiff was probably incapacitated for unrestricted employment because of an advanced L5-S1 lumbar disc degeneration and disc prolapse. However, he noted the plaintiff was able to undertake her normal work duties until she was made redundant in 2005.
183 Although the plaintiff’s reported pain levels had increased since then, objectively Mr Simm did not believe that there was evidence that the plaintiff’s condition had changed greatly and therefore if she was prepared to work under the same circumstances and with the symptoms she had whilst still at work, she could perform the work she was doing at the time of her redundancy. In his view, the plaintiff’s incapacity for unrestricted employment was permanent.
184 He considered that any future employment should be confined to light employment that offered flexibility with static postures and confined the plaintiff to lifting light objects between knee and waist height.
185 In a supplementary report, Mr Simm, having viewed the investigations which dated from 1994, concluded there was no progression of the pathology, it being identical in 1994 to the 2006 CT scan.
186 Mr Simm also commented on Dr Wilkie’s conclusion that there was some progression of the changes on CT scans between 2005 and 2006 based on the assessment of the percentage of the axial area of the canal occupied by the disc prolapse increasing from forty per cent to fifty per cent.
187 Mr Simm had doubts about the view that there had been a spontaneous progression after the cessation of employment, thus further confirming his opinion that there was a progressive degenerative disease running independently of the plaintiff’s work activities.
188 Mr Simm did not think that Dr Wilkie’s plausible theory that a disc herniation is the likely consequence of repetitive trauma with micro tearing of the outer annulus at the lumbosacral level and was not related to a person’s age, could be substantiated.
189 Further, Mr Simm thought the hypothesis that repetitive work activity would most likely aggravate a disc herniation could not be substantiated and noted Dr Wilkie did not define what he meant by this, nor did he relate it to the duties undertaken by the plaintiff.
190 In Mr Simm’s view, lumbar disc prolapse with or without lumbar disc sequestration were pathological changes associated with lumbar disc degeneration. Lumbar disc degeneration was due to constitutional and unknown factors.
191 Mr Simm noted that in this case there was no single or multiple episodes of significant spinal trauma and that the symptomatic lumbar disc pathology was extremely common in individuals who undertake a wide spectrum of activities. He thought that any occupational activities after 20 October 1999 did not influence the natural course of the plaintiff’s condition.
192 Dr Wilkie, consultant radiologist, commented on the CT scans of 10 August 1994, 21 August 2002, 4 July 2005 and 27 May 2006.
193 He concluded that essentially no change was evident between 1994 and 2005. However, between 2005 and 2006, the lumbosacral disc herniation had increased in volume and was now almost certainly an extrusion. Dr Wilkie noted that over 2002 to 2006, there was no evidence of a vacuum phenomenon within either the lumbosacral or L4-5 discs.
194 Given the absence of surgical intervention, in 1994 he considered it was probable the disc herniation had persisted, with the plaintiff having ongoing intermittent back and left leg pain. He did not believe the disc herniation was related to a person’s age but was most likely a consequence of repetitive trauma with micro tearing of the outer annulus at the lumbosacral level.
195 Dr Wilkie did not believe that the plaintiff’s employment after 20 October 1999 had caused the disc herniation.
196 Dr Wilkie concluded that the plaintiff showed persisting lumbosacral level disc herniation from 1994 but with significant progression from 2005 to 2006. He noted the repetitive nature of her work was undoubtedly involved in the genesis of the herniation of 1994 but there was no evidence on the imaging findings that employment after 20 October 1999 altered the imaging findings which were stable to 2005. He considered any employment from 20 October 1999 would have diminished the plaintiff’s ability to achieve spontaneous resolution of the disc herniation.
197 Dr Vizec provided a certificate for the period 3 February 2005 to 28 April 2005 in which he certified the plaintiff would be fit to continue her usual occupation.
Lay Evidence
198 Ms Kathy McDermott was the plaintiff’s supervisor in the trouser’s department until she was made redundant in 2007. She was employed by the first defendant as a machinist for fifteen years.
199 She deposed that when the plaintiff first starting working for the first defendant there was a rail system to supply sections of the material to the machines and she could never recall the sections of material being put on the ground.
200 The machinists would stand from their machine and take the bundle from the rail and then put it on the bench in front of them. That system involved a bit of twisting from left to right with the rail on the left of the machine.
201 Ms McDermott could not remember the exact year but the first defendant changed to a trolley system to get the material to the machines. The machinist used to clip the sections of the trousers to the trolley so they were hanging. There were also smaller sections such as the fly pocket inserts and the like on the trolley.
202 The trolley was pushed over to the machinist where she would pull the bundle of trouser legs across her waist while it was still attached to the trolley and she would sew the smaller sections on and flip the material back as it was still clipped to the trolley. She would then stand and push the trolley to the next machinist so they would continue with the next process.
203 Ms McDermott disputed the plaintiff’s allegation she had to lift bundles of material that weighed as much as fifteen kilograms as there was no lifting involved because the trousers were clipped to the trolley. Further, Ms McDermott disputed the plaintiff may have sewed up to two hundred and fifty sections a day.
204 She noted the overlocker machine was operated by two foot pedals which were in the middle of the machine so the plaintiff could use either foot to operate the overlocker.
205 Ms McDermott could recall the plaintiff had back problems for several years which the plaintiff blamed on stooping and bending to operate the overlocker. The plaintiff used to complain to a fellow worker but she was just a pretty quiet type who did her work without much fuss. Ms McDermott recalled the plaintiff was reluctant to take time off work but said she needed the money because her husband was out of work.
206 Ms McDermott could recall the plaintiff returning to work on reduced hours after some time off for her back problem. The plaintiff still operated the overlocker but was able to work at her own pace and take breaks as required and she eventually went back to her normal duties.
207 Ms McDermott could recall at one stage another small overlocker was purchased so the plaintiff did not have to press the foot pedal. This also meant the plaintiff could get up from a normal overlocker and sew some small sections on the automatic machine.
208 Ms McDermott noted the machinists knew a couple of years prior to 2005 that they were eventually going to be retrenched so it was no shock to them. The plaintiff had told a fellow worker she wanted to leave and she was one of the machinists who left in July 2005. By 2007, virtually all the machinists had been retrenched.
209 Ms Lucy Szafara swore an affidavit on 15 July 2009. She was employed by the first defendant as a quality inspector and started working for the first defendant thirty nine years earlier.
210 Ms Szafara stated the machinists all knew they would eventually be retrenched because the first defendant had made the decision to import instead of continuing to manufacture.
211 Ms Szafara mentioned that years ago there was a movable rail in the trouser room. The plaintiff would have to remove the pieces of material from the rail, sew her section and then put it on the rail and push it to the next machinist.
212 Ms Szafara could not remember when the first defendant started using the trolley system. She noted pieces of material were clipped to a trolley which was put next to the machine, and that the plaintiff would sew her section of the trousers when it was clipped to the trolley and then get out of her seat and push the trolley to the next person.
213 The overlocker was operated by a foot pedal and there was one pedal to lift the sewing foot and the other to operate the machine. The machinist could use their left or right foot as the pedals were in the middle of the machine.
214 Ms Szafara could not recall there ever being bundles of material on the floor as alleged by the plaintiff and if so, it must have been many years ago. She doubted such bundles would weigh fifteen kilograms. There was no lifting required with the trolley system as the material was clipped to the trolley.
215 Ms Szafara thought that the job was pretty repetitive, but so were most jobs. She noted the plaintiff was stooped as she sewed all the pieces together but commented that that was no different to a clerical job or working on a computer.
216 At one stage a smaller overlocker was purchased so the plaintiff was able to work between two machines, the latter working off a sensor so there was no foot pedal. Ms Szafara recalled the plaintiff having back problems for several years but said she did not know anything about her claim.
217 Ms Patricia Fitzgerald, impairment benefit specialist employed by CGU Workers’ Compensation Insurance, swore an affidavit on 17 September 2009 setting out the history of the plaintiff’s compensation claims.
218 The plaintiff lodged a WorkCover claim on 19 November 2002 claiming injury to the low back and left leg sustained on 8 November 2002. This claim was accepted.
219 The plaintiff received approximately ten weeks of compensation in relation to the claim. Her payments were terminated on the basis that her incapacity for work no longer resulted from, nor was materially contributed to, by an injury arising out of or in the course of her employment.
220 The plaintiff disputed the decision to terminate her entitlements and the matter was referred to a Medical Panel.
221 On 23 June 2003, the Medical Panel found the plaintiff was suffering from a left sided L5-S1 disc prolapse with referred pain into the left leg without any radiculopathy but that this condition was not relevant to any claimed back injury. In the Panel’s opinion, the plaintiff’s current medical condition did not result from, nor was materially contributed to, by any claimed injury.
222 The plaintiff lodged a Claim for Impairment Benefits on 16 February 2007. The claim form listed the plaintiff’s claimed injury as “back” and the date of injury as “8 November 2002”.
223 On the basis the plaintiff had a previously accepted claim for a back injury with the same date of injury, the impairment claim was accepted as an “exacerbation of constitutional disc prolapse”.
224 Based solely upon the opinion of Mr Brendan Dooley following an examination of 16 April 2007, liability was accepted for the claimed back injury and the plaintiff was assessed as suffering from a combined whole person impairment of ten per cent.
225 The defendants also tendered the proposed Statements of Claim.
226 It was asserted that throughout the plaintiff’s employment she was required to carry out constant repetitive lifting of bundles of clothes and on a constant repetitive daily basis pushing a pedal on an overlocking machine with the right foot for long hours as a result of which, and in particular, November 2002, she suffered severe injury to her back and leg.
227 This Statement of Claim was later amended to read “throughout the course of her employment and in particular from October 1999 to July 2005” doing the same duties referred to above.
228 An entry was made in the Injury register on 8 April 2004 by Brent Webb. He noted an incident on 3 April 2002 involving injury to the lower back which was described as “old injury has recurred”.
Claim Documentation
229 A claim form was signed by the plaintiff on 19 November 2002. It set out the plaintiff first noticed her condition on 8 November 2002 and she ceased work on that date. The injury arose gradually over a period of time and was the same injury as occurred as a result of work in 1994 and recurred on 3 April 2002 and 8 November 2002.
230 The claim form signed by the plaintiff on 16 November 2005 referred to an aggravation of a pre existing injury from 2003 to 2005 which had been caused by repetitive work duties, particularly use of the left foot to operate the pedal. It was also noted that possibly the design of the overlocker had contributed to the plaintiff’s injury.
Overview
231 Section 134AB(1) of the Act permits the bringing of proceedings only in respect of compensable injuries “arising out of or in the course of, or due to the nature of, employment on or after 20 October 1999”.
232 Thus, it is incumbent on the plaintiff to establish by probative evidence and with some specificity:
(a) what injury is relied upon; (b)
further, that that injury is referable to employment on or after 20 October 1999 (“the relevant date”).
233 It is disputed by the defendants that the plaintiff suffered a compensable injury to her lumbar spine after the relevant date.
234 Counsel for the defendants relied upon Chernov JA’s comments in Grech v Orica Australia Pty Ltd & Anor (supra), at paragraph 2, where His Honour said:
“… On the other hand, as his Honour makes clear by reference to the likely scenario in this case, although the appellant may have sustained injury — even a compensable injury and one that was ‘ongoing’ — before the due date, the evidence may nevertheless show that the injury, as distinct from a manifestation of an earlier injury, in respect of which the worker became ‘entitled to compensation’ within the meaning of subs (1), was sustained after the due date.”
235 Reliance was also placed on the decision of St Laurence Community Services (Barwon) Inc v Gledhill in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 which it was submitted was very similar factually to the present case.
236 I must take into account all the evidence in determining this preliminary issue.
237 The plaintiff’s own evidence in this regard was not particularly clear. Until she gave viva voce evidence, she did not attribute any of her problems to the trolley system relating her problems at various times to the requirement to lift heavy bundles of trousers from the floor, the use of the foot pedal on the machine and the posture she had to adopt to perform her work – problems she had throughout the seventeen years of her employment doing the same job.
238 The plaintiff initially worked with the bundle system until 1995 when the conveyor system was introduced. In 2000, the trolley system commenced.
239 The plaintiff always worked on the same machine whatever the system in operation and she always did the same job. In doing so, she had to adopt a forward tilted motion with her arms up and she was required to use the foot pedal.
240 As the plaintiff explained in evidence in chief, with the trolley system she had to turn and bend to the lower level of the trolley, about a foot off the ground, to get zips and pockets to sew onto the trousers.
241 In cross examination, she said that she worked on trousers whilst they were still clipped to a trolley unless they were larger pairs which she unclipped before sewing.
242 The plaintiff did not mention any problems with the trolley system in her claim documents. She described the November 2002 injury as “the same injury as occurred as a result of work in 1994”.
243 In her 2005 claim form, the design of the overlocker machine and repetitive work duties, particularly the use of the foot pedal, were noted to have caused or contributed to her condition.
244 It was alleged in both the original and Amended Statements of Claim that the daily use of the foot pedal and the repetitive lifting of bundles of clothes had resulted in the plaintiff suffering injury to her back.
245 The defendant’s lay witnesses, who were not cross examined, said the trousers were always clipped to the trolley whilst the machinists worked on them. Both witnesses noted that in these circumstances the plaintiff was not required to do any lifting.
246 The plaintiff did not mention the trolley system and any problems related thereto to any doctors whether treaters or medico legal examiners. Therefore, these medical witnesses have not provided any opinion as to any aggravation of the plaintiff’s condition by any particular work related factors after the relevant date.
247 Dr Vizec thought the plaintiff’s condition was a recurrence of her 1994 back pain developing over time with an exacerbation in 2002 with further recurrences in July 2005, October 2007 and March 2008.
248 In September 2002, the plaintiff told Mr Clifford that for seven or eight years she had developed low back pain which had settled somewhat and more recently returned.
249 The plaintiff told Mr Ton in August 2003 that she had a three year history of intermittent low back pain. The problem started gradually on a background of longstanding back pain since 1994. She attributed the pain to the work she had to do at the factory over seventeen years from 1998. In 1994, she developed low back pain due to the constant sitting, poor working posture and intense concentration demanded from her job. Recently, in 2002, she had another episode of severe back pain when she had to take three months off.
250 He thought the disc prolapse was caused by the type of work she was carrying out which involved repetitive use of her left leg associated with a lot of twisting and turning with associated bending. He thought the prolapse may have occurred in a graduated way – most likely a minor disc injury in the mid 1990s and then, in November 2002 when pain became very severe, it is likely the disc prolapse became more significant.
251 When examined by Mr Brendan Dooley in April 2007, the plaintiff told him of the onset of problems in 1994. She told him her work was repetitive, using a pedal machine sewing pre cut pieces of material to make men’s trousers and that she noted an increase in her left leg pain in April 2002.
252 The plaintiff told Mr O’Loughlin of the onset of pain in 1994 and despite this she continued working until approximately 2002, when in November there was a significant increase in her back pain and her left buttock and leg pain. In a subsequent report, Mr O’Loughlin thought the disc prolapse was directly related to the plaintiff’s work which involved lifting bundles of trousers repeatedly and using a pedal for approximately eight hours a day in a bent position over a workbench. He considered the flare up in 2002 was most likely an aggravation of the 1994 problem.
253 When first examined by Mr Barrett, the plaintiff told him she had worked for seventeen years as a machinist when she complained of low back pain in November 2002. On re examination, he was made aware of the 1994 injury and noted it was clear the plaintiff had had a significant lower lumbar disc protrusion present since at least August 1994. He felt her problem appeared to have been spontaneous in 1994 with subsequent spontaneous worsening in 2002.
254 He thought her employment from the relevant date up until July 2005 included a number of episodes of aggravation and increased symptoms, each episode worsening her disability until she realised she could no longer work and took a redundancy in July 2005.
255 Dr Clark was told by the plaintiff that she had worked for seventeen years as a machinist using machines operated in a seated position actuated with her left leg. He considered her condition related to her previous injury in 1994.
256 Mr Simm was told of the ‘bundle system’ and then the conveyor system and the fact that the plaintiff had first developed low back pain in 1994 and had recurrent symptoms in the following years until April 2002, reporting low back pain.
257 He noted the plaintiff experienced symptoms from L5-S1 lumbar disc degeneration over a period of years. The symptoms were associated with some work activities which included prolonged periods of sitting, bending and lifting.
258 Taking into account all the evidence, I am not satisfied that there was a change in the work system after the relevant date that is the cause of a compensable injury.
259 I am not satisfied that the system of work the plaintiff now describes has materially contributed to the onset of pain in November 2002. Further, the trolley system was introduced in 2000 and the plaintiff’s pain came on some two years later, in late 2002.
260 I accept that the plaintiff’s problems were ongoing from her first complaints in 1994, following which a CT scan in that year clearly showed a disc prolapse which did not progress, in Dr Wilke’s view, until the plaintiff ceased employment.
261 The plaintiff’s back problem from 1994 was caused by the requirement to sit tilted forward with her arms lifted, operating the same machine throughout that period with the use of a foot pedal.
262 No doctors, whether medico legal or treaters, were given a history of any change in work duties after the relevant date with resultant increase in the plaintiff’s level of back pain. Therefore, no doctors link the alleged changed work conditions to any aggravation of the plaintiff’s back pain in November 2002.
263 I accept that the nature of plaintiff’s employment remained much the same over the time the plaintiff was employed by the first defendant and she has failed to establish a compensable injury after the relevant date, thus there is no compensable injury as required by s.134AB(1).
264 As in Gledhill (supra), the evidence in this case does not distinguish injury linked to employment on or after the relevant date from injury linked to employment before then and accordingly the plaintiff did not identify the injury from which the impairment was said to spring and in respect of which alone leave might be given under s.134AB to bring a common law proceeding: See Gledhill, at para 137.
265 It is not enough that any impairment evolved after the relevant date. As Ashley JA said in Grech (supra), at para 45:
“… It is not enough that a plaintiff establish that he or she developed, on or after 20 October 1999, serious injury consequences of compensable injury sustained before that date.”
266 As the Court pointed out in Gledhill, at para 139:
“… 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.”
267 In the present case the plaintiff has failed to establish just what those injuries were.
268 Whilst the plaintiff’s claim fails on this basis, it is also my view that the plaintiff has not suffered a serious permanent impairment as a result of her work duties from October 1999 to November 2002.
269 The plaintiff was able to return to full time normal duties at the end of 2003 and continued to be so employed until she was retrenched in July 2005. In late 2003, her general practitioner noted that she had pain free movement and she did not attend him again for any back complaint until July 2005.
270 As I am not satisfied the plaintiff suffered a compensable injury, the application is dismissed.
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