Romero v Aldi Foods Pty Ltd
[2018] VCC 104
•12 April 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-03518
| PEDRO MELENDEZ-VALDES ROMERO | Plaintiff |
| v | |
| ALDI FOODS PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 February 2018 | |
DATE OF JUDGMENT: | 12 April 2018 | |
CASE MAY BE CITED AS: | Romero v Aldi Foods Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 104 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to lower spine – pre-existing low-back condition – nature and extent of consequences of pre-existing injury – injury alleged to have arisen “over the course of employment” – whether separate incidents may be aggregated or should be viewed separately – nature and extent of consequences flowing from particular workplace incident – pain and suffering only
Legislation Cited: Accident Compensation Act 1985, s134AB; Workplace Injury Rehabilitation and Compensation Act 2013, s335; County Court Civil Procedure Rules 2008
Cases Cited:Petkovski v Galletti [1994] 1 VR 436; Schwab v Victorian WorkCover Authority [2016] VCC 1453, Barwon Spinners v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Ronchi v Alcoa Portland Aluminium Pty Ltd [2007] VSC 340; O’Neill v T D Williamson Aust Pty Ltd [2008] VSC 398
Judgment: Leave granted in respect of pain and suffering consequences.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Hill | Slater & Gordon |
| For the Defendant | Ms M Tsikaris | Wisewould Mahony |
HIS HONOUR:
Preliminary
1 Mr Romero injured his lower spine in the course of his employment with a previous employer, Thiess Services Pty Ltd (“Thiess”), in February 2009. He suffered ongoing problems in the lower back from time to time thereafter.
2 However, in May 2011, he started work at Aldi Foods Pty Ltd (“Aldi”), the defendant, as a picker, working 27.5 or so hours per week. The work was physically demanding and required him to place items in boxes and move them around the factory floor. At its peak, he was picking at the rate of 220 boxes per hour. In the course of his employment with Aldi, he suffered an increase in back pain on various occasions, in various incidents. On 26 June 2015, he suffered an injury while working in a freezer. He says this injury had significant consequences for him. He returned to work, although in June 2016, he was retrenched, as Aldi said it had no work for him, and he was not able to perform his pre-injury duties.
3 Mr Romero has since obtained employment working as a care worker for McKillop Family Services (“McKillop”) looking after children with intellectual disabilities. He is now working around 40 hours per week.
4 Mr Romero has required ongoing conservative medical treatment and claims a range of social, domestic and recreational activities have been lost or curtailed.
5 This is an application for leave to bring proceedings pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for injury suffered over the course of his employment with Aldi.
6 The body function said to be lost or impaired is the lower spine.
7 The application is brought under ss(a) of the definition of “serious injury” contained in s325 of the Act, and leave is sought in respect of pain and suffering only.
8 Mr Romero was the only witness called to give evidence and be cross-examined. In addition, his affidavits, medical and radiological reports, clinical notes and other material was tendered into evidence. I shall not refer to all of that material in the course of this Judgment, but rather those parts of the evidence and reports which appear to me to be most relevant and which I have relied upon in coming to the conclusions referred to in this Judgment. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature, and the principal authorities of the Court of Appeal, are well known, and it is unnecessary for me to revisit the various relevant sections and those authorities.
Relevant background
9 Mr Romero is now fifty-two years of age. He was born in Spain. He migrated to Australia in December 2006 with his wife and three children. In March 2007, he commenced work for Thiess and remained there until 2010, when he was made redundant. He performed a range of employment tasks.
10 In February 2009, he suffered an injury to his lower back. He was treated by his general practitioner, Dr Peter Lackner of the Valewood Clinic in Mulgrave. He was referred to Mr Armin Drnda, neurosurgeon. Mr Drnda performed an epidural and nerve root injection in April 2009. An MRI scan was undertaken which, according to Mr Drnda, showed all of his discs were normal, apart from a slight bulge at L5-S1, which just contacted the L5 nerve root. The disc was said to be degenerate. He suggested regular exercise and that Mr Romero avoid work which required constant bending and twisting of his lower back. He said he should avoid driving long distances and sitting or standing for lengthy periods.[1] The pain in the lower spine was referred on occasions to the left leg.
[1]Plaintiff’s Court Book (“PCB”) 28
11 Mr Romero was cross-examined extensively about the course of his lower back injury from that point forward. He saw a personal trainer for a period, who provided exercises for his lower back, and then continued the exercise program himself for a further six months. At that point, he said he felt good and did not need to do any further exercises. He made a WorkCover claim, and remained working for Thiess, albeit on light duties, until November 2010. He was issued various certificates from his general practitioner providing for modified duties. He was on medication, both pain relieving and anti-inflammatory, until late 2009. He was treated with physiotherapy for a period.
12 In re-examination, he said that from late 2009, until he commenced work with Aldi in May 2011, he was not taking any medication, including over-the-counter medication.
13 According to his affidavit, he said that for the period until he commenced employment with Aldi, he had occasional periods of back soreness which did not prevent him working. Eventually, he resumed his normal duties until he was made redundant. Before June 2015, he enjoyed social soccer and volleyball, and a range of general domestic duties.
Injuries suffered in the course of employment at Aldi and the consequences
14 At the time Mr Romero commenced with Aldi in May 2011, he was certified as fit for the role as a “team leader” by his then general practitioner, Dr P J Lackner. In a letter dated 6 May 2011,[2] Dr Lackner noted that he had a history of left-sided L5-S1 disc protrusion and occasional left leg symptoms, although with a good range of movement. Dr Lackner suggested he should not lift more than 15 kilograms regularly nor perform excessive twisting of his back. There was no treatment planned.
[2]Defendant’s Court Book (“DCB”) 66
15 Notwithstanding the assessment by Dr Lackner, Mr Romero commenced work with Aldi in May 2011 as a picker. The work involved packing and lifting boxes, often in the freezer area, which would weigh between 10 and 18 kilograms. He was required to pick at a fast pace, commencing at 180 boxes per hour, and increasing to 220. In the course of this work, Mr Romero said that he sometimes had back pain and occasional left leg pain. He saw Dr Lackner in August 2011 for back pain. The clinical records of the Casey Medical Centre note that he attended on a number of occasions, including in August 2012, for low-back pain with referred pain to the left leg. On 17 December 2013, he attended that clinic complaining of an exacerbation of lower back pain after slipping on ice on the floor. He was prescribed anti-inflammatory medication. He again attended the clinic on 8 May 2014 complaining of a back strain while lifting at work. A CT scan of 11 September 2014 was undertaken, and a WorkCover claim made. The CT scan[3] showed:
“There is a mild central disc bulge present at LS/S1, but without significant neural compromise. … .”
… there is minor facet joint degenerative change present at one or two levels. … .”
[3]PCB 22
16 It would appear from the Claim Form[4] that the incident occurred when Mr Romero was picking and his leg became jammed under a piece of wood. He saw a chiropractor and was off work for about a week. He returned to normal duties.
[4]DCB 179
17 A further entry in the clinical records of 3 June 2014 indicated Mr Romero tried to go back to work, but encountered difficulties. In cross-examination, he acknowledged that the work was hard at the time. The notes record that on 8 September 2014, he attended the clinic with a flare-up of low-back pain due to lifting boxes. There was a further flare-up in December 2014 where he told Dr Zao of referred left leg pain, was given a day or so off work and a prescription for Celebrex and Panadeine Forte.
18 Notwithstanding these various incidents, Mr Romero remained in the same heavy and repetitive employment, working 27.5 to 30 hours per week.
19 A significant incident occurred on 26 June 2015. Mr Romero was working in the freezer. He reached forward for a box which was stuck, with his leg between two pallets. He felt immediate pain in his lower back. He stopped work that day, and went to Casey Medical Clinic, complaining of lower back pain. He had several weeks off work and returned on reduced hours and modified duties. He remained working 20 hours per week until his termination in June 2016. According to a report of his general practitioner,[5] his work capacity in 2016 was reduced such that he ought not lift more than 2 kilograms, with no sitting nor standing for prolonged periods, regular rest breaks and work limited to 15 hours per week. There was to be no frequent bending or twisting movements. Dr Morrison of the Casey Medical Clinic prescribed Aropax and Kalma.
[5]PCB 38
20 There were recordings in the clinical notes of further incidents of aggravation of low-back pain in September and November 2015
21 Mr Romero was referred to Mr Patrick Byrne, orthopaedic surgeon, in July 2015. Mr Byrne thought Mr Romero could return to his work as a picker, given he was improving at the time. He thought the main problem at the time was left leg sciatica. An MRI scan performed on 16 July 2015 reported:
“Mild left paracentral disc protrusion at L5/S1. The protrusion produces mild posterior displacement of the traversing S1 nerve root in the left lateral recess. The protrusion in conjunction with facet joint hypertrophy also produces mild left foraminal stenosis. Minor disc bulge at L3/4, non-neural compressive.”[6]
[6]PCB 25
22 Mr Byrne noted Mr Romero had physiotherapy treatment without significant improvement. He did not recommend surgical intervention.
23 Mr Romero was seen by Dr Thomas Smith, pain management specialist, at the Metro Pain Group in August 2015. The history was of six weeks of left sciatica as a result of a work-related injury. It was noted the first episode of sciatica was five years before, which took about six months to settle. At that time, Mr Romero had back spasm and was immobile. Then, two years before, there was a further bout of sciatica, which also settled. With the current bout, it was said to be settling and by that time, Mr Romero was back working. An epidural steroid injection was suggested, but not proceeded with, as Mr Romero wished to manage his problem conservatively.
24 Mr Romero was referred by the Casey Medical Centre to Dr Daniel Lee, a consultant in rehabilitation and pain medicine at the Melbourne Pain Group, in November 2015. He noted a history of low-back pain going back to 2009, and episodes of low-back pain two years before. Mr Romero said he had recovered from these episodes, and had returned to normal duties.
25 In respect of the incident of June 2015, Dr Lee received a history of the onset of back pain which developed to leg pain, although as at November 2015, the pain was improving. A “network pain rehabilitation program” was suggested. This was conducted over the period from November 2015 to February 2016 at the Victorian Rehabilitation Centre. Mr Romero said this provided some benefit.
26 In January 2016, Dr Morrison referred Mr Romero to Mr Patrick Lo, neurosurgeon. Mr Lo received a history of low-back pain in December 2013 while attempting to pull a sticker off a frozen package, with three weeks off work, but a return to normal duties.
27 Mr Lo noted that in July[7] 2015, there was another incident when Mr Romero’s leg became jammed and he lost balance, twisting while carrying a package. He noted the MRI showed small disc bulging and nerve root compression at S1. He said Mr Romero had “suffered a back injury in the course of his work resulting in a non-compressive left-sided L5/S1 disc bulge” with pain in the back and left leg.[8] He thought the neurological function was good but there was the prospect of degeneration and deterioration owing to the damage to the lumbar spine.
[7]This is likely to be a typographical error and should be June 2015
[8]PCB 56
28 Mr Romero had pre-existing anxiety, which became exacerbated because of his lower back problem. He has sought psychological and psychiatric treatment.
29 Over the period September to November 2015, there were a number of entries in the clinical notes of the general practice of flare ups of back pain from time to time.
30 In June 2016,[9] Mr Romero received a letter from Aldi which said, in part:
“As you are aware, we have reviewed all medical reports and information concerning your medical condition and understand that you do not have the capacity to perform the inherent requirements of your pre-injury role and function. … .”
[9]PCB 16
31 The letter went on to refer to medical reports which suggested Mr Romero ran the risk of aggravating his condition if he returned to pre-injury employment. Further, it was said Mr Romero was not able to carry out suitable or alternative duties safely. His employment was terminated.[10]
[10]PCB 17
32 In 2016, Mr Romero completed a course in photography online. Photography has always been a passion for him. In the same year, over a period of about nine months, he completed a Certificate IV in Community Services, as at that time, he was thinking eventually, he would have to change employment direction.
33 Dr Morrison arranged an MRI scan of the lower spine in November 2016. This showed:
“There is a large left para-central disc protrusion/extrusion of the L5/S1 disc. The apex of the extrusion displaces posteriorly the traversing S1 nerve root at the articular recess level with high grade radicular compression being seen at the articular recess level. The left L5 nerve root exits without compromise. Right sided nerve roots are not affected.
… .”[11]
[11]PCB 26
34 In December 2016, Mr Romero commenced work for McKillop as a care worker. At present, he works 38 hours per week, and sometimes more, looking after clients with intellectual disabilities. Sometimes he stays overnight. He says the work is non-physical and he receives assistance from other carers as necessary. He says he is able to cope with his back and leg pain in this work, even although he is working longer hours. He drives children to school on occasions, prepares meals and does some light cleaning work. When he stays overnight, he looks after three children. On occasions, he struggles with the work because of his low-back pain.
35 In respect of the consequences of his back injury with Aldi, he says he has constant low-back pain which increases if he sits or stands for too long. Movements involving bending and twisting, and lifting heavier weights aggravate the back pain. He has pain in his leg which sometimes requires him to limp.
36 Mr Romero says he is limited in the domestic chores that he can carry out. He mows the lawns, although in stages. He has lowered kitchen benches to accommodate the strain on his back. His intimate relationship with his wife is affected. He is not able to freely play with his grandchildren. He has been overseas on a holiday to Vietnam on several occasions, but was restricted in the activities he undertook.
37 Mr Romero says that since mid 2015, the pain has been constant. The previous incidents and exacerbations all settled down.
38 Mr Romero sees Dr Morrison of the Casey Medical Clinic each two weeks or so. He currently takes Lyrica each day, Panadeine Forte, on average two to three per week, and Panadol, four per day. He says he wakes up with severe back pain. As a result of the physical pain, he is still being treated by a psychiatrist, Dr Robert Kruk, each six months, and is prescribed medication for anxiety. He has had physiotherapy over the years, but no longer attends. He undertakes a home exercise program. His wife does most of the household chores and he can no longer play social soccer or volleyball. If he drives for more than 45 minutes, his pain increases.
Medical opinions
39 I have referred to aspects of the opinions of the treating practitioners. I shall refer to the opinions of the various consultant and treating practitioners which are relevant to the issues in this proceeding.
40 The general practitioner, Dr Morrison, thought Mr Romero was unlikely to return to his pre-injury duties. He said:
“I believe that as a result of injuries sustained at work on 26/06/2015 Pedro has significant long lasting issues as listed above which have prevented him from returning to pre-injury duties and whilst some improvement may be obtained I do not feel that he will be able to return to his pre-injury duties in the future.”[12]
[12]PCB 39
41 Mr Patrick Byrne, the orthopaedic surgeon, obtained a history of the development of acute low-back pain and pain down his left leg when lifting boxes on 26 May 2015.[13]
[13]Again, this would appear to be a typographical error or mistake, and the date should be 26 June 2015
42 Dr Daniel Lee, consultant in rehabilitation and pain medicine, thought that when he saw Mr Romero in late 2015, that his symptoms were improving.
43 Mr Romero was examined by Associate Professor Bruce Love, orthopaedic surgeon, in January 2018. That practitioner received a history of the development of back pain from 2009, although the symptoms had resolved. He received a description of an incident on 6 June 2015 while moving goods in a freezer and the sudden onset of severe pain in the low back, radiating to the left leg, which had continued through to the present time.[14] Professor Love described the 2015 incident as “a severe recurrence … following work activity … ”.[15] He considered the possibility of decompression surgery at the relevant level. He said Mr Romero had a significant restriction of domestic activities, although appeared to be coping with his new employment. He said:
“His description of the nature of his work in paragraph 9 is that of demanding physical work highly likely to produce symptoms in a degenerative lumbar spine.
The episode of pain described in 2015 is just one of several episodes of pain that have been of variable intensity since the original onset of symptoms in 2009.”[16]
[14]Again, a typographical error or mistake
[15]PCB 59
[16]PCB 59
44 Professor Love said Mr Romero would never be able to return to work which involved physical labour of the type described where he was required to repeatedly bend, lift and stoop.
45 Mr Romero was examined by Mr Michael Dooley, orthopaedic surgeon, in June 2017. He received a history of back problems since 2009, and with incidents in 2013 and 2015. He said Mr Romero had naturally-occurring degenerative disc disease in the lower lumbar spine. He thought that in 2009, Mr Romero had suffered a lumbar disc prolapse in the course of his work, from which he recovered well. He thought he had suffered a soft tissue injury to the same area in 2013. In respect of the 2015 incident, he said:
“In this episode, I believe he sustained a soft tissue injury to his lumbar spine that involved aggravation of underlying degenerative disc disease at the lumbosacral level and may have involved further prolapsing of disc material at this level.”[17]
[17]DCB 54
46 Mr Dooley described Mr Romero as a “sensible and genuine historian”.
47 Dr Chris Baker, an occupational medicine specialist, examined Mr Romero in August 2009, after the first injury. He suggested a return to work on lighter duties where he should avoid standing full time at a conveyor belt. He suggested a graduated return to work in a range of light roles. He noted Mr Romero’s condition was improving.
48 Mr Romero was examined by Dr Graham Long, occupational physician, in August 2015. He received an extensive history of various injuries and incidents going back to 2009. Following that incident, his symptoms had completely resolved within three months, and he was able to resume normal duties. He referred to the incident of 2013 and the CT scan taken subsequently which demonstrated disc protrusion with some pressure on the nerve. He noted Mr Romero said that after this, he continued to experience recurring low-back pain, particularly after a busy day’s work. At the time of the examination, Mr Romero said that he was still attending physiotherapy twice per week and undertaking a home exercise regime.
49 Dr Long concluded that there were significant disc changes present after the 2009 incident, and a further disc injury after 2013, the symptoms from which had settled within a few months. Dr Long said:
“The incident at work in 2013 would appear to have been the principle cause of his current problems. His condition was, however, further exacerbated in his recent injury at work on 26.06.2015. Other likely contributing factors include genetic makeup, degenerative changes and previous injuries.”[18]
[18]DCB 17
50 Dr Long thought the Aldi incidents remained materially contributing to his then current situation. He suggested Mr Romero avoid heavy lifting and straining, frequent or prolonged forward bending and stooping. He said that he would be at high risk of further aggravation if he was to return to his pre-injury duties.
51 Mr Romero was examined by Dr Gale Curtis, orthopaedic surgeon, in 2016, and again in 2018. In 2016, Dr Curtis thought Mr Romero had no capacity to undertake his pre-injury duties or hours. He said there was a permanent restriction on him being able to undertake lifting and twisting jobs where he was carrying a load. He said:
“His last MRI scan was on 16.11.2016 and demonstrated a left paracentral prolapsed disc with some evidence of sequestration compromising the left L5 and S1 nerve roots. It is interesting to look at his CT and MRI scans as of 2009. There is pathology noted on CT and MRI scanning as far back as 2009 involving the L3/4 disc and more particularly the L4/5 disc. It would appear that over the last seven or eight years, there has been a progressive increase in size culminating in the sequestration noted on his last MRI scan dated 06.11.2016. The prolapse progressively became worse to the point where it finally sequestrated. This is often the natural history of the event, in his case sparked off no doubt by the lifting/twisting injury at his place of employment in June 2015.”[19]
[19]DCB 32
52 Dr Curtis said further, when asked as to the probable course of the 2009 back injury, absent the injury complained of at Aldi:
“The natural history of his disorder is that more likely than not, having a suspect disc as he did which was identified at the lumbosacral level as far back as 2009, the probability would be that it would continue degenerating and sooner or later present a problem as it has indeed done with this gentleman provoked by a lifting and twisting injury. This is a perfect recipe - repetitive lifting and twisting under load - and would have brought about the sequestration and prolapse at the LS/S1 level.”[20]
[20]DCB 35
53 I am satisfied from the context of this opinion that the lifting and twisting injury was that which occurred in June 2015.
54 Mr Romero was examined by Dr Dominic Yong, an occupational physician, in January 2018. Of all the doctors who have examined Mr Romero, Dr Yong would appear to have the most comprehensive history. He noted the injury of 2009 as a result of which Mr Romero was on light duties for two months in a supervisory role. He then returned to normal duties about six months after the injury, by which time the back condition had settled.
55 Next was an incident of May 2013 where, working in the freezer and reaching forward with his foot between two pallets, a box he was carrying became stuck. He felt low-back pain and was off work for two weeks. Again, he returned to normal duties with occasional pain and some radiation into his left leg. At this time, he was handling 220 or so boxes per hour.
56 The next incident was in October 2014 when he was picking up a box and lifted and twisted to put it on a machine. He suffered the same low-back pain, with pain radiating down his left leg. He was off work for a short period and there was discussion about moving to a different job, but he returned to similar duties. Finally, there was the incident of 26 May 2015. Dr Yong noted that he returned to work after a period, although on restricted duties involving cleaning for 15 hours per week. Mr Romero said that the symptoms had persisted from that time until 2018. Dr Yong noted that since ceasing work at Aldi, there had been an improvement in his condition, although noted he was still prescribed Lyrica and Panadeine Forte, and undertook a home exercise program. Dr Yong said:
“In summary, Mr Romero is a man who has had a discal injury of his low back which has occurred on a number of occasions and has been treated conservatively.
This has led to radicular features with radiological features of neurocompression in late 2016. He has been treated conservatively, including cessation of manual handling tasks, and this has led to improvement of the condition.
He has current lumbar dysfunction, and there are no current features suggestive of a radiculopathy.”[21]
[21]DCB 62
57 Dr Yong suggested Mr Romero had the capacity for light work within certain restrictions.[22]
[22]DCB 64
The credibility of the Plaintiff
58 I found the plaintiff a straightforward and honest witness. He made reasonable concessions in the course of cross-examination, and I detected no element of exaggeration nor elaboration in his description of the symptoms of his lower back injury and the consequences which followed.
59 I am impressed by the fact that even notwithstanding a significant back injury, he sought and promptly obtained alternative employment after he was terminated at Aldi. I have little doubt that he has a strong work ethic. This enhances his credibility.
60 I have little difficulty in accepting his complaints of pain and disability.
61 It was submitted by Ms Tsikaris, for the defendant, that it was clear from short video extracts taken while Mr Romero was in South-East Asia on holiday, that he was capable of enjoying himself, with dancing in the company of his family and friends. However, the films were short and are of little assistance in assessing the extent of Mr Romero’s disability. They do not affect his credibility. It was further put that Mr Romero follows his passion for photography and maintains that interest notwithstanding his injury.[23] I accept Mr Romero is able to pursue this interest, but again, it is not a matter of significance when assessing his injury or disability.
[23]DCB 185-215
Analysis
62 Ms Tsikaris, for the defendant, made the following submissions:
(i) The onus was upon the plaintiff to establish with precision what injury arose from which of the various incidents during Mr Romero’s employment with Aldi. She said it was not permissible to aggregate the injuries arising from the various incidents. Each incident and injury had to be looked at separately;
(ii) The various injuries as a result of these incidents could not be said to be either “over the course of employment” or “by way of a gradual process over time”.
(iii) It was clear from the evidence that Mr Romero had a significant underlying low-back condition which arose out of his employment with Thiess from 2009. From that point, he had received medical advice that he ought not undertake more physical employment and was treated by a number of practitioners, including with radiological investigation and medication. His current presentation was not substantially different from 2009. The course of his lower back condition was for flare ups from time to time, which mostly resolved;
(iv) In any event, the consequences flowing from injury to his lower spine in the course of his employment with Aldi, did not meet the “very considerable” test.
63 I accept that Mr Romero had a significant episode of low-back pain in the course of his employment with Thiess in 2009. It is clear from the report of Mr Drnda of October 2009 that his condition was sufficiently serious to warrant investigation by CT scan, which showed degenerative changes at L5-S1, and the provision of an epidural injection. Mr Romero was still experiencing pain when he saw Mr Drnda. He was prescribed medication and undertook an exercise program. Mr Drnda thought that it would be wise for him to avoid work which required constant bending and twisting. I accept that he was troubled by back pain in 2009, and into 2010, where the clinical notes record the prescription of medication on occasions. However, there is no record in the clinical notes of the prescription of medication from that time until after he commenced with Aldi in May 2011. I accept Mr Romero’s evidence that he largely recovered from this episode, albeit he had the odd flare up at the end of a working day. While I accept this application may be accepted as an “aggravation” case,[24] I am satisfied that the consequences of the 2009 injury had largely resolved by the time he commenced work with Aldi.
[24]And thus the consequences of that aggravation must be “serious” in accordance with the principles of Petkovski v Galletti [1994] 1 VR 436
64 Of most significance is that when he started at Aldi, his work as a picker was strenuous and highly repetitive. He was able to undertake this work from 2011 until June 2015, albeit working less than 30 hours per week. On any view, being required to pick and pack 200 or so boxes per hour over an 8-hour day is very demanding work. While he did suffer exacerbations of his back problem on various occasions in the course of his employment with Aldi, he was, nonetheless, able to maintain these duties.
65 Further, given my findings as to Mr Romero’s credibility, I accept his evidence, and the histories to a number of the medical practitioners that he made a good recovery after the 2009 back injury. I accept as accurate the statement in his affidavit:
“After the 2009 back injury my back came reasonably good. Occasionally I had periods of back soreness but it did not prevent me working or resuming my normal duties. After I was made redundant at Thiess and (sic) I then worked for a couple of months in delivering windows for Australian Glass.”[25]
[25]PCB 7
66 I am satisfied that when Mr Romero commenced with Aldi in May 2011, while the radiology showed that he had degenerative problems in his lower spine, including a bulge at L5-S1, he had largely recovered from the injury of 2009.
67 In the course of his employment with Aldi, a number of incidents occurred:
· He attended his general practitioner in August 2010 with back pain after lifting a box at work.
· In September 2013, when lifting a box in the freezer, with his leg between pallets, he slipped on some ice and suffered an aggravation of the back pain and was off work for two weeks. He returned to normal duties.
· His foot became jammed between pallets in May 2014 and he slipped. He submitted a claim form and had some time off work.
· There was a further incident in September 2014, again, when he was repetitively lifting heavy boxes, suffering pain in his back, with referred pain down his left leg. He was off work for a further short period, and there was discussion about moving to another job.
· Then, on 26 June 2015 (referred to in some histories as May and July 2015), he suffered what I am satisfied was a further significant assault to his lower spine. Again, he was moving a box in the freezer and hurt his back when he twisted. He was off work for about two weeks. From that point on, he worked reduced hours, and lighter duties.
· On 24 September 2015, he was cleaning a roller door at work and suffered further back pain.
· On 5 November 2015, he suffered low-back pain when he emptied a bin.
68 In addition to these incidents, he went to see his general practitioner on a number of occasions complaining of increased low-back pain without attributing the cause to a specific incident.
69 Ms Tsikaris’ argument is that these various incidents, and the injuries which arose, ought be looked at separately.
70 Mr Hill, for the plaintiff, argued they were all, in one way or another, manual handling, and the Court is entitled to look at these incidents as occurring “over the course of employment” or “by way of a gradual process over time”, thus allowing the injuries arising to be aggregated.
71 Section 39(1) of the Act provides:
“(1)If there is caused to a worker an injury arising out of or in the course of any employment, the worker shall be entitled to compensation in accordance with this Act.”
72 Section 40(3) of the Act relevantly provides:
“(3)There is no entitlement to compensation in respect of the following injuries unless the worker's employment was a significant contributing factor to the injury—
…
(c) a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre‑existing injury or disease.”
73 Further, s39(3) of the Act provides:
“(6)Subject to sections 7(1) and section 40(2) and (3), if a worker suffers an injury which occurs by way of a gradual process over time and which is due to the nature of employment in which the worker was employed at any time before notice of the injury was given, the worker … shall be entitled to compensation under this Act as if the injury were an injury arising out of or in the course of employment.”
74 I considered this issue in Schwab v Victorian WorkCover Authority.[26] In that case, I said that, generally, the Court should assess the consequences of an injury which has been sustained as a result of a single event, to the exclusion of consequences arising from other events or incidents. However, in cases where a worker, in the course of regular, repetitive and similar tasks, such as working on a production line, suffers an injury over time (that is by gradual process), that injury and the various incidents giving rise to it may be assessed as a whole. I noted that each case should be determined upon its own particular facts and circumstances and that it was difficult to lay down even broad rules. I was not taken to any authority from the Court of Appeal on the issue.
[26][2016] VCC 1453 – and the cases referred to: Barwon Spinners v Podolak (2005) 14 VR 622 at paragraph [89]; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Ronchi v Alcoa Portland Aluminium Pty Ltd [2007] VSC 340; and O’Neill v T D Williamson Aust Pty Ltd [2008] VSC 398 at paragraph [107]
75 For reasons which follow, I am satisfied that the incident of June 2015 has, of itself, given rise to an injury with consequences which meet the “very considerable” test. It is therefore not necessary for me to determine the issue finally. I am satisfied that in respect of each of the various incidents over the course of the Aldi employment, Mr Romero was undertaking manual handling in some shape or form. Each incident appeared to involve holding and manoeuvring a box into which he was, or had been, packing goods. Most seemed to involve some form of twisting. There is reference to, on one occasion, slipping on some ice. However, without a careful examination of the evidence as to each incident, it is difficult to discern from the material before me whether these incidents form part of regular, repetitive, similar duties, or discrete incidents. That may be a matter which may have to be determined at trial.
76 I have come to the conclusion that the consequences flowing from the June 2015 injury meet the statutory test. I say that for the following reasons:
(i) It is the opinion of most, if not all of the treating and consulting practitioners who examined Mr Romero after the 2015 incident that he had no capacity to return to his pre-injury duties. While Mr Drnda, in 2009, considered it might be appropriate for Mr Romero to seek employment which placed less stress on his lower spine, the plaintiff nonetheless largely recovered from the back pain and restriction at that time. He similarly recovered from the various other incidents while working at Aldi. It was the 2015 incident which has caused him to be permanently disabled from any form of employment which required lifting, bending, twisting and the like;
(ii) It was following the June 2015 incident that Mr Romero’s treatment regime became far more extensive than it had been. I am satisfied that the pain then became constant, with referred pain into the left leg. He has been on a regime of medication since, through to the present time. The pain has caused an aggravation of his anxiety, which now requires regular treatment by a psychiatrist and psychologist. He sees his general practitioner regularly. These elements had not been present before;
(iii) After June 2015, he was off work for several weeks and then returned to work. However, his working hours were considerably reduced, and he was forced to undertake lighter duties. That remained until his termination in 2016. While he did obtain other employment with McKillop, and accepting that he is now working longer hours, nonetheless, I am satisfied the work is much lighter than before;
(iv) The incident of June 2015 provoked investigation by a number of specialists, including Dr Thomas Smith, a pain management specialist; Mr Byrne, orthopaedic surgeon; Dr Lee, the rehabilitation specialist, who arranged for Mr Romero to attend a rehabilitation clinic, and Mr Lo, a neurosurgeon. Further, a number of CT and MRI scans were undertaken;
(v) I accept Mr Romero’s evidence that since June 2015, his pain has been constant and he has suffered a significant reduction in his domestic and recreational activities;
(vi) The report of Dr Gale Curtis, who examined Mr Romero in January this year, is significant. He traced the degenerative disease in Mr Romero’s spine through the various radiological investigations. He concluded that the most recent investigation showed the progressive increase in pathology at the L4-5 disc which he said had become “sequestrated” by late 2006. He said that while this was the natural history of the condition, it was no doubt sparked by the lifting and twisting injury of June 2015;
(vii) Further, Mr Dooley, who again examined Mr Romero on behalf of the defendant, concluded that the June 2015 episodes caused a soft tissue injury, aggravating the underlying degenerative disc disease, and “may have” resulted in a further prolapse of the disc material.[27] The general practitioner, Dr Morrison[28] and the consultant orthopaedic surgeon, Mr Love,[29] came to similar conclusions.
[27]DCB 54
[28]PCB 39
[29]PCB 59
Further issue
77 After the conclusion of final submissions, I became aware of an issue concerning the transition between the Act and the Accident Compensation Act 1985 (“AC Act”). I had the benefit of written submissions from each party on the issue.
78 Section 5 of the Act relevantly provides:
“5 Application of this Act to injuries
(1) …
(2) If a worker suffers an injury that—
(a) arises out of, or in the course of, or due to the nature of, employment; and
(b) occurs by way of gradual process over a period beginning on or after 20 October 1999 and continuing on or after 1 July 2014—
the worker may rely on any part of the injury that occurred before 1 July 2014 for the purposes of establishing that the injury constitutes a serious injury for the purposes of Division 2 of Part 7.
(3) Subsection (2) does not apply to any part of the injury that was the subject of an application made under section 134AB(4) of the Accident Compensation Act 1985.
… .”
79 Section 39 of the Act provides:
“39 Entitlement to compensation
(1) If there is caused to a worker an injury arising out of or in the course of any employment, the worker is entitled to compensation in accordance with this Act.
(2) …
(3)Subject to section 7(1) and section 40(2) and (3),if a worker suffers an injury which occurs by way of a gradual process over time and which is due to the nature of employment in which the worker was employed at any time before notice of the injury was given, the worker or the worker's dependants are entitled to compensation under this Act as if the injury were an injury arising out of or in the course of employment.
(4) … .”
80 Section 39(3) of the Act is in substantially the same terms as s82(6) of the AC Act.
81 From the submissions of the parties, I was informed:
(a)The plaintiff’s original application to the Victorian WorkCover Authority, submitted prior to the issue of the Originating Motion (“the Form A”), provided that that application was made pursuant to Division 2 of Part 7 of the Act;
(b)Paragraph one of the affidavit of Mr Romero in support of the Form A, and sworn 17 February 2017, referred to s325 of the Act;
(c)The plaintiff’s Originating Motion issued in this Court sought orders pursuant to s134AB of the AC Act;
(d)The plaintiff’s second affidavit, sworn 8 February 2018, and filed in this Court, made reference to s134AB of the AC Act.
82 The material tendered in evidence did not include the Form A. I was thus concerned, given the Originating Motion referred to s134AB of the AC Act, that the plaintiff’s application was made pursuant to s134AB(4) of the AC Act and thus the provisions of s5(2) of the Act may not permit the plaintiff to rely upon injury which occurred before 1 July 2014.
83 Given my findings that the injury suffered in the incident of June 2015 resulted in consequences which meet the “very considerable” test, the issue can be cured by leave being granted to the plaintiff to amend the Originating Motion pursuant to Rule 36.01(1) of the County Court Civil Procedure Rules 2008, to refer to the Originating Motion being brought pursuant to s335 of the Act.
84 The parties appeared before me on the 10 April 2018, and leave in that regard was granted nunc pro tunc.
Conclusion
85 For the reasons above, I am satisfied that the consequences of the injury sustained in June 2015 meet the “very considerable” test. I will grant leave to bring common law proceedings and make consequent orders as to costs.
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