Repniks v Dasma Industries Pty Ltd
[2016] VCC 1724
•22 November 2016
| IN THE COUNTY COURT OF VICTORIA AT LATROBE VALLEY COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-05527
| PAUL REPNIKS | Plaintiff |
| v | |
| DASMA INDUSTRIES PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Latrobe Valley | |
DATE OF HEARING: | 20 and 21 April 2016 | |
DATE OF JUDGMENT: | 22 November 2016 | |
CASE MAY BE CITED AS: | Repniks v Dasma Industries Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1724 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – aggravation injury to neck – identity of injury – serious consequences
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment: Leave granted to issue proceedings at common law for economic loss and pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer SC with Mr G Wicks | Maurice Blackburn Pty Ltd |
| For the Defendant | Mr P Bourke | Thomson Geer |
HIS HONOUR:
1 This is an application by the plaintiff against his employer, Dasma Industries Pty Ltd (“Dasma”), pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) seeking leave to proceed at common law in respect of both pain and suffering and loss of earning capacity damages.
2 An earlier application[1] against Veolia Environmental Services (Aust) Pty Ltd (“Veolia”) relating to an injury to the plaintiff’s cervical spine which he sustained in 2003 and 30 June 2009 in performing his duties as a casual industrial labourer/cleaner/operator, has, I have been told, resolved (“the Veolia injury”).
[1]Repniks v Veolia Environmental Services Pty Ltd, Proceeding No. CI-14-03608
3 This application against Dasma relates to an aggravation of the cervical condition which the plaintiff claimed he sustained due to employment work tasks between 1 July 2009 until approximately 19 October 2009, due, it is said, to the heavy nature of his work (“the Dasma injury”). Pursuant to paragraph (c) of the definition of “injury” in s5(1) of the Act, an aggravation of a pre-existing injury is, itself, an injury.
4 It was not in dispute in this hearing that the plaintiff suffered compensable injuries in the course of his employment with Veolia, nor that his duties with Dasma were virtually identical to those he performed with Veolia. What was in contention was whether the plaintiff suffered a “serious injury” within the meaning of paragraph (a) of the definition of that term in s134AB(37) of the Act as a result of the Dasma injury. Paragraph (a) provides that a “serious injury” means “permanent serious impairment or loss of a body function”.
5 In the earlier application against Veolia, the plaintiff had sworn an affidavit dated 17 February 2014. He then swore a further affidavit on 4 April 2016, naming Veolia and Dasma as first and second defendants, respectively, on the basis that both applications were to be heard together. In addition, he swore an affidavit dated 17 June 2015 in the Dasma proceeding, and all three affidavits were tendered in evidence in the relevant application heard by me regarding Dasma.[2]
[2]Exhibit “A”
6 The plaintiff was not cross-examined on any of the three affidavits.
The facts
7 The plaintiff was employed with Veolia from about August 2003 until 30 June 2009. The work performed with Veolia was set out in his first affidavit thus:
“My usual duties with Veolia included water blasting with high pressure water cleaning equipment, digging out tanks with jack hammers and picks and vacuum loading. A lot of the very heavy work was in the preparation of the cleaning. I would lift and carry steel reinforced rubber hoses weighing approximately 20-25 kilograms and other heavy equipment, including carrying them up numerous flights of stairs at industrial sites. Sometimes I would use a rope to pull the hoses up. The high pressure water gun when operating would discharge approximately 70 litres per minute and was hard to hold. I used the high pressure hoses in confined spaces, such as under machinery. I would also manually pull up heavy floor grates to access drains.”[3]
[3]Exhibit “A”, first affidavit sworn 17 February 2014, paragraph 7, Plaintiff’s Court Book (“PCB”) 23b
8 In his second affidavit, the plaintiff swore he commenced employment with Dasma on 1 July 2009 and that he was doing essentially the same duties as those he undertook with Veolia. He swore that Dasma provided industrial cleaning services and waste management, and he was employed as a casual industrial operator/labourer.[4] He then described his duties with Dasma in identical terms to those with the Veolia.[5]
[4]Exhibit 6
[5]Exhibit “A”, second affidavit sworn 17 June 2015, paragraph 7, PCB 17
9 Both sets of identical duties were referred to as “the work” in both affidavits.
10 The plaintiff further swore:
“During late 2008, I gradually developed pain in my right shoulder and later my neck and left shoulder while undertaking the work [ie the work with Veolia].”[6]
[6]Exhibit “A”, first affidavit sworn 17 February 2014, paragraph 9, PCB 23b and second affidavit sworn 17 June 2015, paragraph 9, PCB 18
11 Clearly, this uncontradicted evidence provided the causative nexus between the work and the injury to the neck, which had led Veolia to concede serious injury under both heads. It would appear that the injury is a gradual process injury to the neck occurring during the employment with Veolia “while undertaking the work”,[7] such that the work can be seen to be a significant contributing factor in the causation of the Veolia injury.
[7]Exhibit “A”, affidavit sworn 17 February 2014, paragraph [9], PCB 23b
12 Further, when the Veolia employment ended on 30 June 2009, it can be seen that any impairment resulting from the injury, certainly with respect to economic loss, had not yet manifested itself. The granting of the certificate for economic loss by Veolia in the first proceeding is consistent with the evidence disclosed at the time of hearing that the plaintiff is virtually totally incapacitated on account of his neck injury in circumstances where the Veolia injury has materially contributed to that impairment.[8]
[8]See Grech v Orica Australia Pty Ltd & Anor [2006] VSCA 172 at paragraph [64]
13 In his first affidavit, the plaintiff swore as follows:
“I continued to work for Veolia until in late June 2009, they lost their major contracts in the Latrobe Valley. I then commenced work for a new employer Dasma. I worked for Dasma for approximately five months. During the five months, I took a couple of weeks off to see if that helped with the pain. I resigned from work with Dasma, as the pain had not subsided and it was too much for me to continue.”[9]
[9]Exhibit “A”, plaintiff’s first affidavit sworn 17 February 2014, paragraph [11], PCB 23c and plaintiff’s second affidavit sworn 17 June 2015, paragraph [11], PCB 18
14 It would appear common ground between the parties that, at this stage, the plaintiff was rendered substantially, if not totally, incapacitated for employment.
15 In his second affidavit, the plaintiff swore as follows:
“12.I saw my GP Dr Fred Edwards on 29 October 2009. He referred me for a CT scan of my neck and prescribed OxyContin for the pain. Dr Edwards then referred me to Dr Gassin at the Metro Spinal Clinic. I saw Mr Gassin on a couple of occasions and he prescribed some anti-inflammatory tablets. He also referred me for an MRI scan. Dr Gassin then referred me to Mr Tony Goldschlager at the Monash Medical Centre. Mr Goldschlager recommended that I have a spinal fusion in my neck. The spinal fusion was performed by Mr Timms, neurosurgeon on 28 September 2010. After the spinal fusion, I was given exercises by a physiotherapist.
13. I have not undergone any retraining or rehabilitation.
14.As a result of the work (i.e with Dasma), I have suffered serious long term impairment or loss of function of my neck … . The injury has affected my mental state.
…
16.My present treatment for my neck injury includes doing exercises when I can, but I find that the exercises irritate my injury. I take the medications Jurnista, at 16mg one per day, and Lyrica, two at night. The doctors have previously tried me on OxyContin and Endep. I continue to see Dr Edwards approximately once a month.”
17.I continue to suffer from constant pain in my neck, shoulders and arms. The pain is at the back of my neck down into my upper back. I sometimes experience pins and needles and pressure at the bottom of my neck and into my upper back. The level of pain fluctuates. Circumstances that increase the level of neck pain include:
(a) lying down;
(b) sitting for more than a short time;
(c) standing for more than a short time;
(d) bending;
(e) lifting more than a light weight;
(f) sudden movement.
18.I have a limited range of movement of my neck both sideways and up and down. My right forearm is numb and I have throbbing in my left arm. I have an intermittent strange sensation in my left hand. I have intermittent headaches at the back of my head. I often suffer from nausea.
19.Since the injury, I find that I am not able to concentrate for very long and that my mood fluctuates due to the pain. I do not have many friends. I rarely see anyone and I do not socialise much. A couple of times a week, I find that I am tearful for no reason. At times I have felt suicidal. I believe my thinking has been affected. I am not a happy person. I no longer do very much and I do not find much joy in activities. My weight has increased by approximately 40 kilograms since the injury. I have lost interest in doing things.
20.I live alone. I do all the housework. I find that when I try to vacuum, mop or sweep this increases my neck pain and gives me headaches. I try to avoid these activities. If I try to put clothes on the clothesline, I find that this increases my neck pain and the pressure in my neck.
…
39. I have lost wages as a result of the injury. I have not worked since late 2009.
40.The injury prevents me from returning to work to which I would otherwise be suited. The injury prevents or restricts me from undertaking work requiring any or any significant:
(a) pushing and pulling of weights;
(b) sitting;
(c) standing;
(d) bending;
(e) lifting;
(f) sudden movements.
41.I believe all these limitations are permanent. Having regard to my age, limited formal qualifications, my general and employment history, and the effects of the injury on my physical abilities, I believe my capacity to work as (sic) been substantially reduced or destroyed.”[10]
[10]Exhibit “A”, second affidavit sworn 17 June 2015
16 It should be noted that these consequences are identical to the consequences said to flow from the Veolia employment, as set out in the first affidavit.[11]
[11]See paragraphs [12]-[14], [16]-[20], [39]-[41] of the first affidavit sworn 17 February 2014, exhibit “A”
17 Accordingly, it can be similarly seen that the claimed injury with Dasma is one occurring by gradual process due to the nature of the work in the period 1 July 2009 until 19 October 2009, where it is alleged that the nature of the work is a significant contributing factor to the injury, being aggravation of a pre-existing degenerative disease of the cervical spine.
18 In this regard, the defendant has submitted in its written submission:
“The Plaintiff has submitted to the Court that the Plaintiff has suffered injury by way of gradual process with Dasma and this is consistent with the Plaintiff’s Draft Statement of his Statement of Claim submitted with his Serious Injury Application. As the case is being put in such a way, the Defendant submits that the Plaintiff cannot now submit to the Court that the injury relied upon occurred as a result of any specific incident within employment, but rather as a result of the period of employment as a whole.
The Defendant submits that the medical evidence in the Application does not support a finding that the Plaintiff’s employment with Dasma was a significant contributing factor to his claimed injury. It is submitted that the medical material is supportive of a causative link between the Plaintiff’s claimed neck injury and employment on the basis primarily of prolonged exposure to heavy and repetitive work over a considerable period. To this extent, the Defendant submits to the court that the time in which the Plaintiff was exposed to such duties on the background of the entire time spent in such occupation represents the nature of any causative link between employment with Dasma and the Plaintiff’s claimed injury (ie a ‘time on risk’ analysis).
The Defendant submits that the correct analysis for this matter is akin to the common law contribution test, as the Court alluded to in Filipowicz. As this case is brought on a ‘gradual process’ basis, in assessing whether the contribution of Dasma’s employment alone is a ‘significant contribution factor’, a time on risk analysis is, the Defendant submits, the most appropriate method.”[12]
[12]Written submission on behalf of the defendant dated 28 April 2016
19 As to whether the Dasma work is a “significant contributing factor”, Senior Counsel for the plaintiff relies on the clinical notes of Dr David Fory, chiropractor, to the following effect:
“… 15th December 2008 …
‘no hand or arm symptoms, neck stiff first thing in the morning, frees up a bit later, no history of trauma, usually neck stiffness goes away within 1 day, current episode 3-4 weeks … Has a left shoulder injury (treated with Cortisone via GP and specialist), possibly due to work, ie. No specific incident. Aggravated recently with work’.
…
19/1/2009‘Not much change. Neck pain comes and goes, daily variance …
12/2/2009‘Better. Good ROM in Csp (“bit sore” with hard work today’)
19/3/2009‘Mid low thoracic spine discomfort. Neck has been very good.’
30/4/2009No reference to neck.
5/6/2009‘… upper neck OK lately. Tender to palpation in Right rhomboids region.’
9/7/2009‘ … and left upper Tsp and Csp stiffness (not too bad)’
24/7/2009‘Check-up. Left leg/hip improvement. Started new job (same work). Maybe try dry needling on left trapezius next visit.’
21/8/2009‘Friday today – right anterior shoulder very painful – Tuesday working in awkward position – had a bit of right upper trapezius discomfort on the weekend.’
2/9/2009‘Right arm pain and pins and needles (mild) comes and goes in Right hand 3-4 days. Some sharpish pain if laterally flexes and extends head to Right … Recommended see GP if p&n gets worse or pain worsens. Try opposite head motion to crease pain.’”[13]
[13]Plaintiff’s Submissions dated 4 May 2016
20 In particular, as 30 June 2009 was approaching, the entries on 30 April 2009 and 5 June 2009 referred to above are consistent, in my view, with the plaintiff suffering from the pre-existing (pre 1 July 2009) injury, but being able to clinically manage the condition so that he can remain at work doing the heavy work alleged. One can see that the entries on 21 August 2009 and 2 September 2009, in particular, are consistent with the work with Dasma contributing to the symptoms and being part of the “prolonged exposure to heavy and repetitive work over a considerable period” as referred to in the defendant’s submissions at paragraph 4.5 referred to above.
21 In my view, given that “the work” in both periods of employment is essentially the same, and given that “the work” in both periods is productive of symptoms from time to time, this evidence is corroborative of both periods of employment being a “significant contributing factor” to the aggravation of the underlying degenerative process, which probably commenced prior to employment with Veolia.
22 That being the case, the defendant then essentially makes the submission that the consequence of the Dasma injury is to be evaluated according to the principles set out in AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz.[14]
[14][2012] VSCA 60 at paragraph [22]. See defendant’s submission at paragraph 4.6 above
23 If one accepts that this is a correct submission, it appears to me that the impairment immediately prior to the Dasma injury is minimal, at least in a financial loss sense, because the plaintiff was undertaking full-time employment. Insofar as the Dasma injury is an aggravation of a pre-existing condition, it would appear that the result of that aggravation is the rendering of a total incapacity or, at least, a material contribution to a total incapacity, according to the principles outlined in Grech v Orica Australia Pty Ltd & Anor[15] referred to above.
[15](Supra) at paragraph [79]
24 Whether the aggravation injury with Dasma is to be decided purely on a Filipowicz template or purely on a Grech template, or on a hybrid of both, seems to me, on the facts of this case, to be made out in any event.
25 For my own part, I consider that since both the Veolia injury and the Dasma injury appear to be gradual process injuries due to the nature of employment, they both satisfy the ingredients of a s82(6) injury, such that the principles laid down in Grech are more appropriate.
26 If I am wrong on this analysis and that the Filipowicz template is the sole basis of assessment, it would appear to me that there has been a dramatic change in the plaintiff’s capacity for work in September 2009 compared to 1 July 2009. The work in that period was productive of symptoms from time to time as referred to above, and was of such a heavy nature, that it was capable of causing the type of injury claimed, for the reasons referred to above. In particular, the plaintiff’s affidavits, insofar as it makes those allegations, are uncontested.
27 I have taken note of the defendant’s submissions with respect to the medical evidence in this case, as set out in paragraphs 4.7 to 4.12, which I will not repeat here. Suffice to say that the medical material referred to therein does not contradict, in my view, the analysis pursuant to the Grech principles and is not inconsistent with a purely Filipowicz template, on the basis that the plaintiff had a full capacity for work on 1 July 2009, compared to a total incapacity from October 2009.
28 In particular, I accept Senior Counsel for the plaintiff’s submission that the opinion of orthopaedic surgeon, Mr Michael Dooley, is of considerable moment in this case, as he is the only one who has examined the clinical records of Dr Fory and referred to same in his medical report. Counsel submits:
“[Dr Fory] specifically refers to the extent of the Plaintiff’s symptoms as set out in the clinical notes prior to August 2009. He notes the Plaintiff’s deterioration following working in an awkward position in August 2009 and the subsequent development or right brachial neuralgia. While Mr Dooley refers to this as a specific episode, it is quite clear that the Plaintiff was doing no more than his usual work and that this was in fact a significant flare-up leading to brachial neuralgia. Mr Dooley goes on to attribute 20% of the aggravation to his condition with Veolia and 50% to the aggravation arising in August 2009.”[16]
[16]Plaintiff’s submissions at paragraph [29]
29 Accordingly, I find that the work performed by the plaintiff during the Dasma employment was a significant contributing factor to the aggravation of degenerative cervical disc disease which pertained, as at 1 July 2009, such that a consequence of that injury was the rendering of the plaintiff totally incapacitated from approximately October 2009 and, as such, he is entitled to be permitted to institute proceedings for damages for economic loss arising out of that injury.
30 Further, in accordance with the principles set down in Advanced Wire & Cable Pty Ltd & Anor v Abdulle,[17] leave will be granted to the plaintiff to issue proceedings for pain and suffering damages as well.
[17][2009] VSCA 170
31 I will hear the parties as to any consequential orders.
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