Ruseler v D and E Potter Pty Ltd
[2013] VCC 531
•18 April 2013
| IN THE COUNTY COURT OF VICTORIA CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-05154
| ADRIAN RUSELER | Plaintiff |
| v | |
| D & E POTTER PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE McINERNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28, 29 and 30 November 2012 | |
DATE OF JUDGMENT: | 18 April 2013 | |
CASE MAY BE CITED AS: | Ruseler v D & E Potter Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 531 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Workplace injury – wrenching injury to the right shoulder and neck
Legislation Cited: Accident Compensation Act 1985, s135A
Cases Cited: Humphries v Poljak [1992] 2 VR 129; Cropp v Transport Accident Commission & Beglehole [1998] 3 VR 357; Zlateska v Consolidated Cleaning Services Pty Ltd & Anor [2006] VSCA 141; Dordev v Cowan & Ors [2006] VSCA 254
Judgment: Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M J Ruddle | Ms P Toop Clark Toop & Taylor Injury and Compensation Lawyers |
| For the Defendant | Mr P B Jens | Ms S Doyle Landers & Rogers |
HIS HONOUR:
1 In the matter of Adrian Ruseler, Court Reference Number CI-11-05154, Mr Ruddle appeared on behalf of the plaintiff and Mr Jens appeared on behalf of the defendant. This is an application under s135A of the Accident Compensation Act 1985 (“the Act”).
2 The applicant made application for certification and received a Notice of Rejection under s135 from the insurer's solicitors, Lander & Rogers, on 19 October 2011 (see Exhibit A). A Notice of Motion was filed on 27 October 2011 when leave was sought to issue proceedings for damages pursuant to s135A4(b) of the Act. This case took three days to be heard over the period 28 to 30 November 2012.
3 I apologise for the delay in delivering these reasons; however, in the intervening time has been the long Christmas break and the fact that I have been on a criminal circuit and in criminal sittings since that time. Given the issues involved which, hopefully, will appear from the determination, it has been difficult to find time to be able to give the necessary analysis to the submissions made to me and to have the time to meticulously overview all the medical evidence in the case.
4 As is my normal practice, and because of the time involved in these cases, it is simply impossible, given the resources of this Court, to provide a written judgment in the matter. I will pronounce an oral judgment and settle such thereafter.
5 Mr Ruddle opened the case. The plaintiff was born in March 1963, was forty-nine at the time of the application, and is now aged fifty. He is a skilled motor mechanic, having obtained his apprenticeship and, indeed, worked as a motor mechanic and was first employed by the defendant in 1989. He alleged he had sustained injuries at the dealership of the defendant conducted at a premises known as Corio Village Service Station, on 10 August 1996. Mr Ruddle identified the injury as being an injury which came under the definition of part (a) of the definition of “serious injury” as set out in s135A(19) of the Act.
6 Mr Ruddle described the circumstances that his client had been in at the end of the day, pulling down a cantilevered door, which was comprised of a number of glass panels. He was doing so with a metal hook. There was a defect, apparently, and with its weight, the door came down much faster than otherwise it should have, and he used his right hand to stop it coming down, and, as it was coming too fast, he then suffered, what Mr Ruddle described, a wrenching injury to the right shoulder and neck.
7 Mr Ruddle identified the body part injured as being a disc injury of the cervical discs, in particular C5-6 and C6-7, and said to the Court, however, that it was not until an unrelated investigation took place in November 2009 that Mr Ruseler realised the extent of his injuries and, indeed, that it had developed to an extent that could subsequently be described as a “serious injury”.
8 Subsequent to such reporting of symptomatology in 2009, it was determined that Mr Ruseler was suffering from a herniated disc by way of prolapse, and needed a fusion. An operation was subsequently effected in the following July whereby a two-level fusion was undertaken in regard to the cervical spine.
9 I was advised by both counsel that s135AC was not in issue in this case.
10 Mr Jens was asked to explain to the Court what were the issues. He said there were two: the first was a factual question. He submitted that the issue raised by the defence was whether the symptoms now referred to in the right arm, which had been reported in late 2009, related in any way to the alleged work injury in 1996. The second issue, he submitted, was that even if the Court found that the injury was so related and, indeed, was therefore dealing with a work injury, he would submit, despite the fusion operation, that the narrative test was not satisfied insofar as the determination in regard to a serious injury.
11 Taking the first matter for consideration, it is, of course, a fundamental jurisdictional question to be determined by the Court insofar as the provisions of s135A(1) is concerned; that is, did an injury arise out of or in the course of employment with the defendant?
12 As to the law relevant to such an application, the Court is assisted by the principles expounded in the decision of the appeal division of the Supreme Court, as it then was, in Humphries v Poljak [1992] 2 VR 129, 140 to 141, where the Court referred to the general observations relevant to applications for a part (a) injury. Insofar as the relevant law is concerned, the determination by the Court of Appeal in Cropp v Transport Accident Commission & Beglehole [1998] 3 VR 357 continues to serve to remind trial Judges that it is most important they do not apply a more stringent test than that as set out in Humphries v Poljak.
13 I also adopt, as the manner of dealing with matters in issue in such applications, what the then Charles JA said in Cropp, at 375:
"In these circumstances the matters really in issue before the learned judge were the identification of body function of the appellant which had been impaired, the nature of the impairment, whether the impairment could be described as long-term, and what were the consequences for the appellant in the form of disablement from work or interference with enjoyment of life.”
14 It is always necessary for a plaintiff to identify compensable injury that is referrable to employment. It is only such an injury so linked to employment which can lead to the authorisation to issue proceedings for damages pursuant to s135A(1).
15 In answering such question, it is necessary to consider what the plaintiff says about the injury (both in Court and to the doctors by way of history), what impact the injury has had upon him, for example, by way of medication, its interference, if any, with his ability to work, the medical treatment undertaken, et cetera. It also involves an analysis of what the doctors submit and say about the injury, and also an analysis of what the objective evidence demonstrates as to the relationship of such alleged injury to the employment of the plaintiff.
16 In this case, of course, Mr Jens does not dispute that an injury may have arisen out of the plaintiff’s employment in 1996. He, however, disputes that such injury is the injury which thirteen years later was the injury complained of or was an injury that required the operation, and/or was responsible for the consequences subsequent to such operation.
17 In making the determination on this first issue, I do not lose sight of the authorities which say that it is sufficient to establish that the employment was a significant contributing factor to the injury, see Zlateska v Consolidated Cleaning Services Pty Ltd & Anor [2006] VSCA 141, at [77]. In determining such question, the Court offered the following advice when considering s82 of the Act, insofar as entitlement to compensation was concerned, at [82]:
“There is a single test to be applied under s.82(1) - the 'arising out of' test. The test raises a question of causation. In a case such as the present, the test is satisfied if it can be shown, on the balance of probabilities, that an injury to the worker was caused by an act or omission of the employer (including any servant or agent of the employer). This causation question is to be approached, like any other causation question, as a matter of common sense.”
18 The plaintiff gave evidence. He confirmed the accuracy of the affidavits filed in this matter, being Exhibit B1, located in the Plaintiff's Court book at page 4, and sworn in June 2011, and Exhibit B2, located in the Plaintiff's Court book at page 9, and sworn in October 2012.
19 In Exhibit B1, the plaintiff swore as the happening of the accident in paragraph 6 and the use of his left arm in pulling down the gate and, to use his words, the happening, as a result of the circumstances, of a significant wrenching injury to his right shoulder. He said that thereafter, based upon the advice of his medical practitioners, he simply treated it as a soft-tissue injury, such injury did not prevent him from carrying on thereafter a full working life and full social life, although he did suffer, particularly in winter, from occasional musculoligamentous strain (see paragraph 8) which he treated with chiropractic or osteopathic assistance.
20 It was not until in late 2009, for an unrelated cause, he attended his general practitioner, Dr Grace, as I understand, for an annual medical, that he recounted to Dr Grace the history as to his neck and referred pain into his right shoulder, arm and hand. As a result thereof, a CAT scan was taken and an MRI scan in February 2010 which demonstrated a disc herniation at C5-6 and C6-7 with stenosis in the discs.
21 Mr Ruseler stated in his affidavit at paragraph 12 that from late 2009, he had begun to suffer from right-sided neck pain with radiation. He further said that it was as a result of those symptoms that he reported such to his general practitioner, and was ultimately advised of the need for the fusion operation, which was undertaken in July 2010.
22 Mr Ruseler maintains in his affidavit that thereafter, he suffered persisting pain and interference with his lifestyle, that his prior pursuits of sailing and golf were now not able to indulge in to the same degree. At paragraph 12 of the affidavit, he said he is now much more careful about carrying out the heavier aspects of his life and work as a mechanic. He submitted that he was unaware that he was going to suffer such serious long-term injuries, but, until the last three years, that is three years before the swearing that affidavit (see paragraph 13 of the affidavit at page 8).
23 In the further affidavit, being Exhibit B2, sworn 29 October 2012, the affidavit, unfortunately, has no paragraph numbering. However, in the last paragraph on page 1, he said that following the fusion operation, he found that the pain had improved in regard to his neck, and his arm area. However, he continued to suffer from ongoing pain and cramping, as he called it, of the neck. He was hesitant because of heart issues with his Celebrex as to what types of medication he took, and essentially now only took Panadol.
24 Mr Ruseler, subsequent to the operation, was cleared to go back to work. He said that he must now be careful, he must be careful as to the extent that he extends himself when working, and he suffers from limitations as to any heavy work. His sleep is interfered with. He suffers from headaches and also has ongoing difficulty in his social activities, particularly insofar as golf and sailing. Essentially, his evidence-in-chief involving a confirmation of all of those matters that I have referred in his affidavit.
25 In cross-examination, which went for a significant period compared to how these applications are often heard, a strong attack was mounted by Mr Jens. Such attack focused primarily upon the history provided by the applicant both in his affidavits, and in particular to his practitioners. Such attack led ultimately, in final submission, to Mr Jens submitting that the Court should find that Mr Ruseler was neither a creditable, nor an accurate witness.
26 In cross-examination, Mr Ruseler agreed that prior to the injury he had, for some considerable years, worked as a mechanic, and worked without issue on the heavier aspects involved in mechanical work, in particular his concentration on heavy vehicles. It was put to him that subsequent to the alleged injury in 1996, he had applied for employment at the company, CMV, in 2005, employment which he continues to hold. Mr Jens put that, to obtain employment, he was required to obtain a medical, and such was put to him, being Exhibit 14, wherein his doctor opined that Mr Ruseler was in excellent medical condition, with no previous, or present medical complaints. It was pointed out by Mr Jens that the doctor who provided such certificate had previously treated Mr Ruseler in 1997.
27 Mr Ruseler was questioned as to the treatment which was allegedly undertaken in 1996. He said the doctor had sent him to a physiotherapist who treated him after the incident. He agreed that a certificate was provided for WorkCover purposes, and it was put to him in the certificate provided it noted only a left shoulder. It was put to him that thereafter a certificate described him as being fit for all duties as a result of an injury to his left hand and neck, and he was taken to such workers’ compensation claim form. It should be noted that the materials show that Mr Ruseler is naturally left handed.
28 Exhibit 1 was put by Mr Jens to Mr Ruseler in cross-examination, that is the worker's claim form for this actual accident. That particular document was signed by Mr Ruseler on 5 September 2006, and is contained in the Defendant's Court book, and is Exhibit 1. At page 2 of such claim form are detailed the circumstances as to how the accident occurred, it being stated that he was using his left arm and hand to stop a work shop door slamming shut. It was put to Mr Ruseler that there is no reference at all in such claim form to any injury to the right side of his body.
29 Mr Ruseler agreed that he subsequently resigned from the defendant's employ in July 1997, and further agreed that in his letter of resignation, in the Defendant's Court book at pages 53 to 54, that there was no reason given for his resignation, and specifically, no suggestion at all that he had resigned for any medical reason.
30 Mr Ruseler agreed that he then went on to work for a firm in Geelong called Rex Gorell as a mechanic, and worked there for seven years. He agreed, when it was put to him, that thereafter he went to Geelong City Toyota, where he worked from 2002 to 2004, and thereafter at an office cleaning business where he was second in command from approximately 2004 to 2006. It was put to him that his gross income continued to rise throughout the period from 2007 to 2012, and further, Mr Jens put to him that by 2012 in fact, he was receiving the highest payee return that he had ever received in his whole life.
31 It was further put to Mr Ruseler that up to 2006, that is ten years after the accident, he had never undertaken any second job. He agreed that thereafter, in 2006, he started a second job. It was also put to him that post 2006, he took up sailing and golf, to which he agreed. Mr Jens then specifically put to Mr Ruseler that the history provided both to Dr Grace, as reported in the letter dated 1 October 2009, being Exhibit C1 in the plaintiff's Court book at page 12, and to the medico legal surgeon Dr D'Urso, in the plaintiff's Court book at p.19 being Exhibit F in March 2011 was incorrect.
32 Further it was put, that from 1996 to 2009, there was no reported history of right-handed pain, or right-handed neck, shoulder or arm pain to any medical practitioner. It was put to Mr Ruseler by Mr Jens that the histories given to the general practitioner on that date, and to Mr D'Urso, were wrong, and that an analysis of the actual history would show that to be so. It was further put by Mr Jens that in the period 1996 to 2009, no right-sided symptomatology by way of radiation from any alleged neck injury had been complained of by Mr Ruseler.
33 Mr Ruseler accepted that in late 2009, he had gone to Dr Grace, and had reported a history of right-handed pain. He accepted that thereafter, he was referred to Dr Ton, and it was put to him by Mr Jens that on 2 February 2010, as ascertained from Exhibit H, the plaintiff's medical records as tendered, that he reported to the orthopaedic surgeon, Mr Ton, a six-month history of right arm pain.
34 Mr Jens then led, by way of cross-examination, the issue as to the alleged inaccurate history, and went to the issue as to the satisfaction of the narrative test. The cross-examination was on the basis that whatever the cause of the neck operation, which was disputed by the defence, such operation had been a success, indeed such a success that it did not meet the narrative test.
35 In cross-examination, Mr Jens put to Mr Ruseler that subsequent to the operation, Mr Ruseler was now not only back at full duties from December 2010, but was now undertaking three jobs. He further put to Mr Ruseler that for a period of two years after the operation, there had been no complaint by Mr Ruseler to any general practitioner of any pain in the neck, nor had there been any request for medication in that period.
36 Mr Jens further put from the medical records tendered in Exhibit 11, that is of the surgeon, Mr Ton, that in the first of those letters in February 2010, he had told Mr Ton that he was pain free. Mr Jens submitted as somewhat more than a coincidence, that despite the two-year period of no pain, that Mr Ruseler should suddenly develop pain leading up to the beginning of this hearing.
37 In this regard, he noted the report of Dr Grace, being Exhibit C3 located at page 15A of the Plaintiff's Court Book, where it was noted that on 14 November 2012, Mr Ruseler attended upon Dr Grace, and complained of pain in the arm. Dr Grace said, despite the earlier success, there was now some regression of symptomatology with what appeared to be, as he described it, neuropathic pain.
38 Coming to the first issue raised by Mr Jens, and in order to analyse such attack on the plaintiff's credibility, it is important to look at the available medical evidence for the period referred to by Mr Jens in order to assess the complaints made to Mr D'Urso, as noted in the medico-legal consultation of March 2011, being Exhibit F, located in the Plaintiff's Court Book at page 19.
39 It is noted that in that consultation in March 2011, Mr Ruseler reported the symptomatology leading to the operation as chronic neck, and right arm and hand pain and weakness which he said to Mr D'Urso had caused him chronic incapacity for many years.
40 If one goes back to the actual medical treatment, there is, unfortunately, no medical report before the Court from the general practitioner who treated him first in 1996; that practitioner was Dr White.
41 Mr Ruseler was treated, on referral of Dr White, by the physiotherapist, Ms Africa. Her report is located at page 16 of the Plaintiff's Court Book, which became Exhibit D and was a letter to the general practitioner, Dr White, of 10 August 2006. It recorded an injury following a problem where he was closing a door at work. It further reported an exacerbation of that injury which came about from him later chopping wood. Mr Ruseler said to her, by way of history – this is as I said, page 16 of the Plaintiff's Court Book – that he suffered from discomfort in the left neck, and the medial scapular region.
42 On review, the physiotherapist noted that there had been a good result, and that Mr Ruseler now had close to 100 per cent recovery. Exhibit 10 tendered by the defendant was the clinical notes of the Geelong Sports and Medicine Clinic which was the clinic of Ms Africa, the physiotherapist. In particular, as was pointed out by Mr Jens, and is self-evident, the areas of concern specifically referred to by the physiotherapist are set out in a diagrammatic form. Those areas disclosed in the diagram, in Exhibit 10, are the neck, left arm and shoulder region. He was treated by the physiotherapist for a period from 10 August 1996 to 11 September 1996.
43 At all times the treatment by the physiotherapist was recorded as being for the area of the left arm and neck. It was noted by 10 September 1996 that Mr Ruseler reported that he was suffering from hardly any pain, by 11 September 1996, he was suffering only an occasional twinge. There was, in such clinical notes, no reference to any other symptoms and certainly no reference to any issues with the right arm, hand, or any part of the right side of the body.
44 Next tendered were the clinical notes of the general practitioner, Dr Seabrook. They make up Exhibit 13, and they demonstrate two episodes of treatment of the plaintiff, or applicant. The first involved the period 14 to 20 August 1998 when there were six visits to such general practitioner, for matters unrelated to this case being a finger injury. However, it is significant that over that period of two years there is no reference whatever to any pain in any part of the neck, or any arm.
45 Subsequently, the plaintiff did see Dr Seabrook in 2001. On 10 April 2001, he gave a history. That history was a strained left shoulder, with a history of an earlier strain to the left shoulder, which he said had settled well with physiotherapy. Such history reported to Dr Seabrook seems to confirm the treatment undertaken by Ms Africa, and her opinions as to status of which I have already referred.
46 It should be noted that in the history provided to Dr Seabrook, there was no reference to any chronic ongoing neck injury, or any referred pain into the right arm, hand or shoulder. The doctor, in April 2001, noted symptomatology in the left interscapular area with pain, and pain of the neck and pain down the left arm. Mr Ruseler was classified as fit to return to normal duties by 23 May 2001.
47 Corresponding with Dr Seabrook’s treatment, is a further document tendered by the defendant, this relates to osteopathic treatment in 2001. That is Exhibit 12 and again, it is noted in the diagram attached to that report that the area identified as treated at that time, was the left neck, shoulder and arm, and by identified, I mean the diagram was detailed by the osteopath undertaking the treatment.
48 Next in order of medical treatment, as disclosed in the material before the Court, was that of Dr Scheelings. These documents were also tendered by the defendant as Exhibit 14. Such involved a request for an employment medical by the company, CMV Truck & Bus Company, by letter of 3 November 2005. As I said, Mr Ruseler subsequently, as a result of such medical, did take up such employment and is still employed there.
49 In the letter from the employer to the doctor, his prospective duties are described as, “a Senior Truck Technician”. The job was said to involve some lifting and involved working with heavy industrial equipment and trucks. The report provided by Dr Scheelings and dated 3 November 2005, stated as follows:
“Insofar as Mr Ruseler was concerned, but as at that date, Mr Ruseler was in ‘… excellent physical condition, not suffering from any previous or present medical complaints and suited for any type of work’.”
50 The next documents tendered were Exhibit 9. They are the medical records of the MedicAid Family & Accident Centre, and were tendered by the defendant. At this practice was located the plaintiff’s general medical practitioner, Dr Grace. It would appear from a perusal of those records that he treated the plaintiff for a period from January 2007 through to what appears to be November 2009.
51 On the first five occasions recorded in these records of Mr Ruseler attending the practice, that is from January 2007 to 31 March 2009, there is no complaint of any neck or arm injury at all, neither right or left, or anything related to any neck. On 23 November 2009, he reported to Dr Grace, as detailed in Dr Grace’s own letter to the plaintiff, Exhibit C1 in the Plaintiff’s Court Book at page 12, symptomatology to the right arm, neck and extending through the right arm. It would appear that he was subsequently treated at the clinic in regard to those complaints by Dr Kozlov.
52 Exhibit H, tendered by the plaintiff, is the practice records of the plaintiff’s general practitioner. On 26 November 2009, the symptomatology reported by Mr Ruseler was pain in the lower cervical spine which was radiating into the right arm and hand. He was referred by Dr Kozlov to Mr Ton, an orthopaedic surgeon. The records show that on 10 February 2010, upon attending Mr Ton, he reported, “A six-month history of right-sided neck pain, radiating down to the right forearm and the right hand”.
53 Mr Ruseler further stated to Mr Ton that, “This was upon a background of longstanding chronic neck pain of [10 years].” Upon further investigation, he was subsequently treated by Mr Ton by way of the fusion operation, and continued to be treated by Dr Kozlov at the clinic, being to whom Mr Ton reported. That reporting referred to apparent resolution of symptoms by 25 August 2010. Such report was made to Mr Ton, by Mr Ruseler himself, and as I have already noted, that subsequent to that time, he returned to work on full duties by the December of that year.
54 After that time, when he advised Mr Ton that he had had resolution of symptoms, that is on 25 August 2010, or subsequent to that time, a letter was sent by the plaintiff’s solicitors to Dr Grace. That letter is contained at Exhibit 9A and that letter is dated 17 September 2010. In the letter, a history relevant to the 1996 accident was provided to Dr Grace. Whether it is a coincidence, or whether the plaintiff actually took that letter to Dr Grace, I do not know, but on the same day Mr Ruseler attended upon Dr Grace.
55 Exhibit 9 shows that in providing the history of the 1996 accident to Dr Grace, Mr Ruseler now referred to the right arm being injured. It seems to me that such reference by Mr Ruseler at that time is significant and, in fact, is the first record in the general practitioner’s records of any such history, with reference back to 1996.
56 In this regard, it should be noted that specifically, Exhibit 9 states this, “Friday, September 17, 2010. Dr Grace.” This is the notes insofar as Mr Ruseler is concerned:
“He feels he is a WorkCover case as he had an injury in 1996. He worked at Mobil, he attempted to close a glass concertina door. Wind caught the door wrenching his left arm outwards (I assume that is a mistake).
He was seen at Corio Bay Medical Centre and was referred to Physio Anne Africa, who put him in traction. His head was locked in a brace and his head was pulled vertically upwards. After this, his right arm went totally numb for a couple of days. Since then he got continual recurrence of pain down his right arm. This usually only occurred in the winter months. Each time he treated this by attending physiotherapists and osteopaths…”
That is the end of the part of quotation that I wanted to refer to.
57 Thereafter, on 1 October 2010, without, it would seem, checking the clinical records, Dr Grace sent his letter of reply to the solicitors for Mr Ruseler. That letter, as I have said, is contained in Exhibit C1 in the Plaintiff’s Court Book. At page one of that letter is the following:
“As the door came down, he grabbed the handle of the door to enable it to gently come down to the ground to avoid shattering the glass at the door. As the door went down, he grabbed it with his right hand. However, due to the weight of the door and the wind, the door continued pulling his right upper limb down and straining at his neck. Since that time, the patient has continued to have pain in the right side of his neck and his right arm, which has required constant analgesia and physiotherapy. At one of his visits to me on the 23rd of November 2009, the plaintiff recounted the story about his injury to his right arm and neck, and that the pain on the right side of the cervical spine was radiating down his right arm to his right hand.”
58 Given the terms of that letter, one could easily mistake the reference on 23 November 2009 to “story” on the second-last line, about the injury to the right arm and neck, as including the actual provision by Mr Ruseler on that date of the history of the alleged work incident of 10 August 1996. However, when one looks at the records held by the practice, clearly, that is not so. There was indeed, no such history ever recorded until the attendance by Mr Ruseler, that I have earlier referred to, upon Dr Grace on 17 September 2010.
59 Further analysis of the medical history of the plaintiff is possible, being various WorkCover certificates tendered by the defendant. One of the points made by Mr Jens in regard to these certificates was that, here was a person who was not slow, nor unaware of his rights, under the appropriate legislation, and the point that was being made by Mr Jens, as I understood it, was that if the plaintiff or applicant was subject to such constant disabling pain to the right shoulder, arm and hand, how was it that no reference to such was ever made in such certificates/ or any prior claim in regard to such made over the thirteen years.
60 These certificates are contained in Exhibit 7 and run from the period 19 August 1996 to 30 May 2001 and are located in the Defendant’s Court Book, at pages 15 to 39. At page 15 is a certificate signed by the actual treating practitioner at the time of the alleged injury, albeit that there appears to be a mistake as to the date of the injury. That is that Dr White refers to the injury as occurring, not on the date as opened by Mr Ruddle, but on 17 August 1996.
61 However, insofar as the actual injury is concerned, the reference from Dr White in the certificate, which was for one week off work was to, “a left suprascapular neck pain”. At review on 28 August 1996, located at page 17 of the Court book, was reference to, “neck and shoulder ligamentous injury”. The next worker’s compensation certificate is one at page 19, and this was one of Dr Scheelings’, a certificate given in 1997. It referred to a similar problem occurring in 1996. The problem in 1997 was, “left upper back and shoulder”.
62 The next certificate, or series of certificates, is located from pages 23 to 38, and they are certificates provided by Dr Seabrook and an osteopath in 2001. They refer to injuries or symptoms to the left shoulder and arm. Apparently two weeks off work was provided because of muscle tear from 10 April 2001. Thereafter, he was on modified duties for a period of two weeks, and on 21 May 2001, he was certified fit for all duties.
63 The final certificate somewhat interestingly, is the certificate signed by Dr Grace himself, after the examination of 31 October 2010. I am unsure whether he made a mistake in his two reports confusing left or right, but he seems to go both ways in this certificate, because his description of the injury is a, “Traction injury to the neck and left arm”. However, as to his diagnosis, he says, “Disc injuries with right arm spondylitis”, given upon a history provided to him as reported of, “Recurrent symptoms of cervical pain and spondylitis of the right arm”.
64 The second factor appropriate to analyse, insofar as assessing this challenge by Mr Jens to the credibility of the applicant, Mr Ruseler, is objective factors. In analysing the disputed prior medical history, it is important to look at what the plaintiff did during this period 1996 to 2009. As Mr Ruseler says in his affidavit, see Exhibit C1 paragraph 6 of the Plaintiff’s Court Book, he carried on, after the 1996 injury, with a full working life.
65 It would appear that he resigned from the defendant company after working there for five years in July of 1997. As I have said, he then went to work with Rex Gorell in Geelong and apparently worked there for seven years. He then worked at Geelong City Toyota, and then apparently served a period as second-in-command at Bay Hire Services. Clearly, up until the job that he obtained in 2005, he carried out the work involved, and the heavy work, as described as a mechanic. That is for the period 1996 to 2005.
66 In October 2005, as I have remarked, he shifted to DMV as a mechanic and contract manager. As I have also remarked, this involved working with heavy-duty garbage trucks and heavy-duty equipment. He said in evidence that he normally started work there at 6.00am. He was questioned, in particular, as to the medical clearance he had been given when he started at that job. That is Exhibit 14, to which I have already referred, the health clearance from Dr Scheelings.
67 At Transcript 40, he was questioned as to the medical opinion that he was then suffering from no prior or current medical complaint, and Mr Ruseler replied that he: “… did not disagree with the content of such report, particularly at that time”, see Transcript 40. It should be remarked that in the earlier analysis, as I referred to, of Dr Scheelings, she was in fact the person who had treated him in 1997 for left upper and left shoulder pain which she described as being similar to, according to the history given by him, an earlier incident in 1996 (see Exhibit 7, pages 19 to 21 of the Defendant's Court Book).
68 Thereafter, in 2005, Mr Ruseler started playing golf on a weekly basis, and in 2007, began social yachting, on a two-weekly basis in season. His other recreations were fishing and camping. Also in 2007, Mr Ruseler began a business as a handyman operating under the trade name of AS & R Services working on a thirty-hour a week basis for the Queenscliff Golf Club as a handyman, and also carried out general work for other persons throughout the Geelong area.
69 In cross-examination, he said he would complete his job at DMV, that is for the period starting at 6.00am taking him through to about 1.00pm and then he worked from 1.00 pm to 9.00pm fixing various tools, and doing odd jobs at the golf club, and that he would carry out such a work pattern over a period of three days a week; that is, he would do his normal job plus the work at the golf club on three days a week.
70 In 2008, Mr Ruseler said that as well as his extensive work commitments, he would play golf at the Clifton Springs Golf Club twice per week, and during the season would sail weekly. He confirmed that he maintained such lifestyle up to the time that the symptomatology developed in late 2009, which he subsequently reported to Dr Grace.
71 Mr Ruseler was specifically questioned as to such right-handed symptomatology, and questioned as to such symptomatology in the context of his previous heavy employment load, and the increased sporting activities that he had undertaken in the period 1996 to 2005. It was put to him that when he presented to Dr Ton on reference from Dr Kozlov, he reported a history of six months of right-sided symptoms, and it was put to him that is the first time that he had reported such symptomatology. To that question at Transcript 82, he agreed “yes”.
72 It was further put to him that the right arm symptoms presented, that is, presented thirteen years later than the alleged 1996 work incident were new. At Transcript 86, he replied, “That's a good way of putting it”.
73 Mr Ruddle, in submission, submitted that Mr Ruseler should be seen not only as reliable, but as stoic, a person not prone to exaggeration, who had borne his symptomatology, post the 1996 incident, for a period of thirteen years until the symptomatology that thereafter developed, or that had developed to the right side of his body was of such a degree that there was the need for the operation undertaken in 2010.
74 Mr Ruddle relied upon the opinion of the general practitioner, Dr Grace, the medico-legal opinion of Mr D’Urso (Exhibit F1 and F2) and as he described in final submissions, “most importantly for the plaintiff”, on the opinion of Mr Dooley, orthopaedic surgeon, provided to the defendant, as set out in Exhibit G in the Defendant's Court Book at pages 48 to 51.
75 Before coming to such opinions it is necessary to note what the radiology was. In Exhibit H, the radiology reported to Mr Ton by way of MRI showed that the cervical spine had degenerative change at the C5-C6 level with severe right-sided stenosis at C6-7, and moderate right-sided stenosis at C5-6.
76 Coming then to Dr Grace. I have already analysed the background to the letter to the plaintiff's solicitors, Exhibit C1. The history detailed there, if such was given, and the opinion of Dr Grace based upon the feelings expressed by Mr Ruseler in that consultation as to causation do not accord with reality. I find such history as provided by Mr Ruseler to be inaccurate.
77 Coming to Mr Dooley, once again in Exhibit G, being the report of Mr Dooley contained at page 48 of the Defendant's Court Book, and reported in January 2012, the history given was of a 1996 wrenching injury to his right arm and neck with an ongoing history of intermittent neck and right upper limb pain which gradually worsened. Again, I find that this history was not accurate or correct.
78 As to Mr Dooley's opinion, relied upon by Mr Ruddle, it is clear that at page 50, Mr Dooley had found that Mr Ruseler had naturally occurring marked degenerative change, and right sided stenosis secondary to degeneration.
79 As to the issue of the 1996 symptomatology as reported by Mr Ruseler, such no doubt affected Mr Dooley’s conclusions, to which I will come to in due course. Even with such history, his finding, as I said to Mr Ruddle during submissions, was equivocal. That is, that it was Mr Dooley's opinion that the indication for surgery in regard to Mr Ruseler was “in the main” based on naturally evolving degenerative disc damage of the cervical spine.
80 On the basis of the history reported by Mr Ruseler, he also went on to say, “One would accept the 1996 incident had also played a part”. I find that when one considers the actual history, and my finding that the history provided by Mr Ruseler was inaccurate and incorrect, then I am satisfied that the conclusion expressed by Mr Dooley should be disregarded. I am not satisfied that Mr Dooley’s evidence is supportive of the plaintiff's case, as put by Mr Ruddle.
81 Coming then to Exhibit F1 in the Plaintiff's Court Book at page 19, that is the report of the medico-legal surgeon, or neurosurgeon, Mr D’Urso, he saw Mr Ruseler in February 2011. Again, Mr Ruseler gave him the following history as to the 1996 incident:
“... and shortly after this Adrian noted that his right arm had become weak and numb, and neck pain had worsen. Adrian states that he was chronic incapacitated after this injury for many years. He complained of chronic neck and arm pain, and weakness of right arm.”
82 I find that such history is not reflected in reality and is not accurate or correct, and that the conclusions as expressed by Mr D’Urso at paragraphs 1 and 2 and in his whole report are therefore flawed.
83 I would therefore uphold the submission of Mr Jens. I consider his reference to Dordev v Cowan & Ors [2006] VSCA 254 is apposite, and that the comments of Chernov JA, as he then was, are appropriate to these circumstances as I have so analysed. On the basis of the findings I have made, I have determined Mr Ruseler is not a credible witness, in that he has not given the practitioners relied upon by Mr Ruddle an accurate account of the alleged injury, and its effects upon him in terms of pain and suffering and disability.
84 Given such findings, I should also say that I am unpersuaded purely upon the evidence of the plaintiff alone as to the nature, and extent of the injury which allegedly occurred to him on 10 August 1996. I am not satisfied that the injury sustained on 10 August 1996 is casually related to the complaints first made as to right arm and hand pain and pain emanating down the right arm from the neck in late 2009, nor could I find that such is related to the subsequent findings on MRI, or the required operation and the consequences thereafter.
85 I am not satisfied, on the balance of probabilities, that the injury and consequences relied upon by the plaintiff as allegedly occurring on 10 August 1996 have been proved to the required standard.
86 I perhaps should add for clarity that while Mr Ruseler certainly appears to have suffered an injury to the cervical spine, or to the structures thereof, in 1996, and thereafter intermittent symptomatology as I have explained to the neck, and the left arm and shoulder in the period from 1996 to 2009, being in 1997 and 2001, I do not find in such history, after considering the totality of the factors that went to make up Mr Ruseler’s life in the intervening period, any basis for a finding that such would have been responsible for the injury and consequences treated post 2009 by Dr Kozlov and Mr Ton.
87 There is therefore, and I find, no need to consider the second aspect of Mr Jens’ submissions.
88 I therefore formally dismiss the application of Mr Ruseler.
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