Rushin v Norman Carriers (Aust) Pty Ltd
[2021] VMC 4
•1 April 2021
IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE
WORKERS COMPENSATION DIVISION OF COURT
Case No. K10500544
| Andrew Keith RUSHIN | Plaintiff |
| v | |
| NORMAN CARRIERS (AUST) PTY LTD | Defendant |
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MAGISTRATE: | M A HOARE |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 2 – 4 December 2020 |
DATE OF DECISION: | 1 April 2021 |
CASE MAY BE CITED AS: | Rushin v Norman Carriers (Aust) Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2021] VMC 004 |
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CATCHWORDS – Worker Compensation – Rejection of Claim - Aggravation of Underlying Degenerative Lumbar Spine – Onset of Epidural Spinal Abscess requiring Surgery – Forklift operator driving over alleged uneven surface and performing manual labour - Whether Injury in the Course of or Arising out of Employment - Whether Employment a Significant Contributing Factor - Whether the Infection in the Spine resulted from or was materially contributed to by compensable aggravation - Credit of the Plaintiff – Workplace Injury Rehabilitation and Compensation Act 2013, ss 3,39, 40, clause 25 of Sched 1
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APPEARANCES: | COUNSEL | SOLICITORS |
| For the Plaintiff | Mr P. Haddad | Slater and Gordon |
| For the Defendant | Mr S. Scully | Minter Ellison |
HER HONOUR:
INTRODUCTION AND OVERVIEW
Mr Andrew Rushin, the plaintiff in this proceeding, was employed as a forklift operator and manual labourer with Norman (Aust) Carriers Pty Ltd (‘Norman’). On 10 October 2017, Mr Rushin ceased work having become acutely unwell. Following admission to hospital and investigation, a large spinal abscess was diagnosed which ultimately required spinal surgery and eight weeks’ in-patient treatment.
Mr Rushin brings this proceeding under the Workplace Injury Rehabilitation Act 2013 (‘the Act’). He seeks relief following rejection of his workers compensation claim by Norman. In essence, Mr Rushin’s case was that his lumbar spine condition, including the spinal abscess requiring surgical intervention, was a consequence of his work with Norman and, in particular, due to jarring or jolting of his spine from driving a forklift over uneven ground at Norman’s premises.
Norman defended the case on the basis that Mr Rushin’s spinal condition was due to an infectious disease process caused by bacteria and was not caused by any activities performed in the course of his employment.
At the outset of the case, the relatively unusual nature of Mr Rushin’s injury (the infectious process and spinal abscess) gave rise to a consideration of whether appropriately framed medical questions ought to be referred to a Medical Panel under s.274(1)(a) of the Act. Ultimately, however, Counsel agreed there was consensus as between the two infectious disease specialists in the case that blunt trauma could lead to the sort of infection suffered by Mr Rushin. As Dr Darby stated, ‘the entity of trauma preceding a specific significant spinal infection is a well-recognised event’. Dr Sasadeusz observed there is ‘good evidence in the literature’ that trauma to the spine can indeed result in a focus of subsequent infection.
There was, however, considerable dispute between the parties as to the nature of the work performed with Norman and the circumstances of the particular tasks performed. There was also dispute as to whether, and to what extent, Mr Rushin had made contemporaneous complaints about his duties such as being required to drive over potholes or as to back pain whilst working with Norman. On that basis, I determined that any medical questions turned substantially on the resolution of factual issues which were more appropriately determined by the Court: s.274(5). The matter proceeded on that basis.
This matter was heard over three days (via WebEx). For the plaintiff, Dr Jonathan Darby, treating infectious diseases physician gave oral evidence. For the defendant, Mr Uilao Paulo, a former employee of Norman was called. All other medical evidence was tendered by consent.
The time-table for filing of written submissions was extended on two occasions, with the Court’s leave, upon application by the parties. This time-table was therefore not completed until 11 March 2021. On 15 March 2021, the plaintiff then filed, without consent or leave of the court, a response to the defendant’s reply to the plaintiff’s submissions. Counsel for the plaintiff wrote to the Court that the plaintiff was doing so ‘as of right’. In my view, leave was required. The filing of a response to the reply was outside the scope of the consent orders made by the Court. However, the defendant did not notify the Court that it objected to the ‘response to the reply’ being filed. On that basis, and given there was little, if anything, of substance added other than to take issue with the defendant’s characterisation of the evidence, I allowed the filing of that response.
For the reasons that follow, I find that Mr Rushin is entitled to the relief that he seeks.
PLAINTIFF’S EVIDENCE
Background
Mr Rushin, who is 53 years of age, emigrated from England to Australia with his family when he was aged nine. He completed his schooling at year 9.
Before working for Norman, Mr Rushin worked in a series of manual roles, mainly as a forklift operator, in various settings including cold storage and warehouses. Some of his past roles involved some manual handling.
Injury and Work History Prior to Employment with Norman
In September 2003, Mr Rushin suffered a prior back injury when he slipped over whilst operating a pallet jack at work (‘the 2003 injury’). A WorkCover claim was not pursued. Even before the 2003 injury, Mr Rushin said he had some back pain on and off. He was off work due to the 2003 injury for an unclear period of time. He then remained out of the paid workforce for four to five years which he said was due to personal circumstances. Mr Rushin said he had back pain on and off from the time of the 2003 injury. In cross-examination, he said he had back pain ‘very rarely’ over these years. He said it was brought on by physical activity such as heavy lifting and that it was because of his ‘bulging discs’.
A CT lumbar spine scan of 27 October 2005 showed multi-level disc bulges at the levels of L3/4 to L5/S1 with slight effacement of the thecal sac. There was also a moderate bulge at L5/S1 which barely encroached upon the thecal sac.
In relation to his past back problems, Mr Rushin was taken, in considerable detail, in cross-examination, through the clinical records of the GP clinic he attended, Wyndham Health Care (‘Wyndham’). Mr Rushin repeatedly stated that his back pain over the years was ‘nothing like’ the severity of his back pain on and after 10 October 2017 which was the ‘worst pain he had ever had in his life’. He denied having severe back pain in 2005. He said his GP Dr Lumbes in recording a complaint of severe back pain on 27 October 2005 ‘could have worded it wrong’. He agreed he was prescribed Panadeine Forte and Voltaren. He agreed he had bad nerve pain into his right buttock and leg.
Further attendances for low back pain were recorded at Wyndham: on 1 November 2005; twice in March 2006; and, on three occasions in 2007 including once after helping a friend to move house. He was generally prescribed Panadeine Forte and on a few occasions, Tramal. Mr Rushin was questioned as to why his attendances on his GP for low back pain during these years mostly made no reference to the nature of his work duties at the time. He initially said his pain during these years was not aggravated by forklift driving, only manual handling. Later he said his back pain was aggravated by forklift-driving if he had to sit for an extended time, but he was able to manage the pain with Panadeine Forte.
In April 2008, Mr Rushin complained to Dr Lumbes of low back pain. Dr Lumbes recorded a history of him then working as a removalist and having lifted a fridge the day before. A lumbar strain was diagnosed and Panadeine Forte was given. In cross-examination, Mr Rushin said he could not explain why, in September 2009, Dr Lumbes had recorded a ‘four-year history of low back pain’ with an exacerbation three days previously whilst lifting at work and driving a forklift.
In 2012, Mr Rushin saw a GP at Wyndham four times for low back pain with scripts being given for Panadeine Forte and once for Tramal. Mr Rushin said his ‘discs must have been playing up’. In 2014, there were three attendances for low back pain with Panadeine scripts given. There were single instances of low back pain, without reference to activity or work, in December 2015 and in January 2016 when Tramal was again prescribed.
Mr Rushin’s last employer before Norman was CFS, where he was a forklift driver for two years. He said back pain hadn’t affected his ability to work with CFS. Mr Rushin was asked whether his previous forklifting jobs, required him to drive on uneven ground. He said only at Booth Transport where he had worked for about two years although that was before the 2003 injury.
As for past WorkCover claims, Mr Rushin agreed that in July 2015 he lodged a claim for a left wrist injury.
Work with Norman Carriers
From 1 September 2016, Mr Rushin was employed full-time as a forklift-driver and labourer with Norman at its Altona North premises (‘the premises’). His duties mainly comprised operating a forklift to move freight in and out of warehouses at the premises. There was some manual lifting of bags of produce (such as rice and coffee) off pallets once or twice week.
Over the first few months with Norman, Mr Rushin said he was ‘100%’ and was physically capable of doing his duties. He agreed that in February 2017, he attended a GP at Wyndham, Dr Waechter, complaining of low back pain after ‘unpackaging a container at work’. He could not recall whether he was lifting bags of rice or coffee. He lost no time from work. In cross-examination, he denied ever telling his direct supervisor, Mr Paulo, that he refused to do heavy lifting as it was ‘a young man’s job’.
Mr Rushin said there was a problem at Norman’s premises with the surface of the yard. In front of the warehouse, there were a lot of potholes. Out the back, it was all gravel pot-holes. In the area in front of the office, there was a long, rectangular pot-hole that was 15 feet long by 30 cms wide by 2-3 inches deep (which I will call ‘the long pot-hole’). Mr Rushin was shown aerial Google Earth photographs of Normans’ premises (tendered into evidence under the business records rule). Mr Rushin pointed to a lighter-coloured, apparently newer, rectangular slab of concrete that had been cut out and replaced. He said this was where the long pot-hole had been. Mr Rushin said that when loading trucks, you couldn’t avoid it and you had to drive through it. This was because the incoming and outgoing trucks left little room in the yard. Under cross-examination, he conceded you could sometimes go around the long pothole depending on the position of the trucks.
When he drove over the long pot-hole, his back was jarred and it would ‘hurt his back severe’. He started noticing the pain in about July 2017. As for the frequency with which he would have to drive over the long pothole, he said this was 30 times a day and it hurt his back every time. When asked about the pain, he said under cross-examination, ‘When I drove through the pothole, it was just sharp, yeah, it didn’t stay like for agonising pain, it just went sharp, yeah…’
When asked whether he had complained about this, Mr Rushin said he would stop the forklift in front of the office and call in through the window to say it needed fixing. He also complained to Mr Paulo, his direct supervisor, at least once a week, the first time in mid-July 2017. Mr Lau would reply, ‘they will do nothing, Andrew’. He denied ever being told by Mr Lau or anyone in the office to drive over the long pothole slowly or to avoid it.
Another problem that would hurt his back ‘real bad’ was driving in and out of containers on an old ramp. This happened on multiple occasions.
As for whether he had treatment for back pain caused by operating the forklift, Mr Rushin said he saw his GP. On 28 July 2017, he saw Dr Richard Lunz at Wyndham complaining of two weeks of hip and right thigh pain. Dr Lunz recorded that Mr Rushin thought it was sciatica due to ‘previous bulging discs’. He lost no time from work and was prescribed Panadeine forte. As for why he didn’t tell his GP about pain caused by the jarring of the forklift, he said it was because he ‘thought it was his discs’. He could not say why there was no recorded history in the notes of his GP regarding the nature of his work with Norman including the forklift driving.
A lumbar spine CT scan was arranged on 9 August 2017 showing multi-level degenerative canal stenosis, an L4/5 disc protrusion involving the exiting L4 nerve root and a disc bulge at L2/3 impacting the L3 nerve root.
Mr Rushin also described hot sweats, nausea and vomiting on and off. He thought the sweating was from the unloading. Initially he said this was ‘from around the time of the CT scan’. He later said it was from about two weeks before he stopped work. When asked why there was no complaint about sweating or nausea to any GP in the weeks leading up to him stopping work, Mr Rushin said he thought he was ‘just sick’. He would be sweating and vomiting one day then have a couple of good days then another day where he was sweating heavily and would vomit at work.
On 15 September 2017, Mr Rushin saw Dr Zaid Albrefkany at Wyndham about the results of the August CT scan. Dr Albrefkany on that date recorded ‘chronic low back pain for 13 years, worsening right-sided sciatica’. When asked why he had not been back to the GP sooner than September, Mr Rushin said he probably had boxes of Panadeine forte at home from previous scripts. Mr Rushin lost no time from work due to back pain over this period. He said this was because he was able to manage on his medication (meaning the Panadeine forte). When it was put to him in cross-examination that he had been essentially managing on his medication since 2003, he agreed.
Events of 10 October 2017 and Subsequently
On 10 October 2017, Mr Rushin felt really sick with nausea and back pain. When Mr Paulo saw him, he said, ‘you’re all white’ and sent him home. Mr Rushin drove home and, on the way, his hands ‘kept coming off the steering-wheel.’ He had two separate minor traffic collisions on the way home in which he collided at low speed with the rear of a stopped car at an intersection. Neither incident resulted in damage to his or the other vehicle. Once home, as he opened his front door, his legs went out from under him and he fell to the ground landing on his backside. He crawled to the couch and then to bed. He slept for about four hours until about 7:00 pm when he woke up with acute back pain which was unlike anything he had had before. He drove to his mother’s place where he spoke to her from the car before driving back home again. He remained at home after that.
On 12 October 2017, Mr Rushin’s sister drove him to the Werribee Mercy Hospital. The triage nurse recorded three days of worsening low back pain radiating down his right leg and a background of ’15 years chronic bulging disc pain’. He was admitted with acute back pain, nausea and confusion and lack of control of his legs. Mr Rushin was transferred the next day to St. Vincent’s Hospital where the history taken was of being ‘generally unwell with malaise, lethargy and generalised weakness. Slipped on tiles at home and landed on back side 3 days prior to presentation’ and of severe lower back and right lower leg pain since then.
When asked why there was no history at the time of the hospital admission at Werribee nor upon transfer to St. Vincent’s as to his work with Norman, Mr Rushin said his pain was so severe that he could not think or talk properly and that his sister had done the talking for him. Mr Rushin said he was asked many questions which he couldn’t answer and ‘it was like he had amnesia’.
Mr Rushin remained as an in-patient at Si. Vincent’s for the next six weeks under the care of Dr Darby. An MRI scan of 13 October 2017 showed multiple abscesses around the hip region and a horseshoe-shaped abscess at and around L4/5 level of his spine. On 20 October 2020, laminectomy surgery was performed to drain the spinal abscess. He was eventually transferred back to the Werribee Mercy where he remained for a further fortnight.
Lodging of WorkCover Claim
On 30 March 2018, Mr Rushin completed a WorkCover claim form for his lower back, specifically a spinal abscess, which had happened ‘driving the forklift’. The claim form recorded a date of injury of 12 October 2018. The claim was rejected by notice dated 12 June 2018.
In cross-examination, Mr Rushin agreed he had written ‘no’ to the question as to whether there was a previous injury/condition that related to the present injury/condition. In cross-examination, he denied that he completed the claim form and said that it was his doctor. Later, he said he made a mistake and he did complete it himself, but the date was wrong and his last day of work with Norman was 10, not 12, October.
When asked why he lodged the WorkCover claim in March 2018, he said because he had no annual leave and had been claiming unemployment benefits to pay his rent. He denied the reason for him claiming unemployment benefits rather than WorkCover was because he knew there was no relationship between his work at Norman and his acute illness leading to the hospitalisation and surgery. Mr Rushin said he knew it was damage from work and ‘all the pot-holes every day’.
In December 2019, a further WorkCover claim was lodged for a lumbar spine injury throughout the course of employment. This was rejected by notice dated 13 February 2020.
Current Condition and Circumstances
Mr Rushin remains under the regular care of his GP. He is prescribed Norspan (40mgs) patches for pain relief, as well as Panadeine Forte, Baclofen (a muscle relaxant), Somac (for gastric issues) and blood pressure medication. He will require preventative anti-biotics for two years to combat infection. He has trouble bending. He can carry 4 kg bags of shopping one in each hand. He can walk about twenty minutes.
Mr Rushin said there was no way he could do his pre-injury work and he didn’t there was any form of work he could go back to in the future.
LAY EVIDENCE
Mr Paulo, presently a postman with Australia Post, was employed with Norman from 2012 until September 2020. In his last five years with Norman, he was yard supervisor responsible for about 30 staff including the eight forklift drivers (one being Mr Rushin). Mr Rushin’s duties, as well as forklift-driving, involved manual handling about three times a week. Mr Paulo said Mr Rushin attended work regularly and reliably.
Mr Paulo agreed there were potholes or uneven ground around the yard including in the yard’s central area in front of the main warehouse. When shown the aerial photographs of Norman’s premises, he agreed there was a pothole in the area of what was depicted in one of the photographs as a lighter-coloured rectangular concrete slab. Forklift drivers could avoid the long pothole completely by just driving around it. He conceded that forklift drivers did have to drive over the long pothole if they were loading the trailer. He had observed this happen. When asked about the frequency of a forklift driver having to drive over the long pothole, he estimated that it would occur twice per day. As for whether he had received complaints about it, he said there was one complaint and that was by Mr Rushin who had asked that the problem be fixed. Mr Paulo told Mr Rushin that it would be fixed straight away. When asked whether it was fixed straight away, Mr Paulo said: ‘In that year, yep’. He did not recall when, or whether it was fixed before October 2017, when Mr Rushin had gone off work. In cross-examination, Mr Paulo initially agreed that Mr Rushin’s complaint had occurred ‘way before’ Mr Rushin stopped work. Mr Paulo then said, after the audio connection dropped out, he couldn’t really remember the timing of the complaint.
According to Mr Paulo, Mr Rushin had never complained of back pain whilst working for Norman. When asked whether he recalled Mr Rushin had been ill or observed him vomiting while at work, he replied: ‘On his last day’. As Mr Rushin was visibly unwell that day, Mr Paulo had sent him home. Prior to that, there had been some time off work for ‘his scan and blood test and stuff’ including a gastroscopy.
When asked whether there was any stage during his employment that Mr Rushin’s duties changed, Mr Paolo said Mr Rushin was no longer doing any manual handling for a month and that this was due to illness. It was Mr Paolo who had altered Mr Rushin’s duties.
MEDICAL EVIDENCE
Evidence of treating medical practitioners
Dr Jonathan Darby, treating physician and infectious diseases specialist at Werribee Mercy and St Vincent’s, had provided letters to Dr Lunz dated 24 February 2018 and 28 June 2018 and reports to Mr Rushin’s lawyers dated 9 October 2019, 12 November 2019 and 20 November 2020. In the letter of 24 February 2018, a history of low back pain was noted. In the letter of 28 June 2018, Dr Darby wrote that he had encouraged Mr Rushin to pursue WorkCover as it seemed there was a preceding accident at work. He went on to say the entity of trauma preceding a specific significant spinal infection is a well-recognised event. Dr Darby noted there was ‘a body of literature around spinal infections localising to the site of prior trauma or stress, and the infection tracking into the point of least resistance’ and to clinicians seeing this ‘very commonly’. Presumably the trauma sets a small injury with a haematoma and this predisposes that area to bacterial seeding with infection. The diagnosis on MRI on 13 October 2017 was of osteomyelitis, facet arthropathy at L4/5 and epidural phlegmon as well as multi-focal right psoas abscesses. Dr Darby opined that the extent of the infection seen on the MRI would take some time to develop and would not be consistent with the fall at home on 10 October 2017 or the two motor vehicle collisions. Mr Rushin was unfit for his previous work and was continuing to struggle with pain and mobility.
Under cross-examination, Dr Darby said that, in the acute phase, the focus was on patient care. Being an infectious diseases physician, he had not been concerned with pre-existing or ongoing back issues. As for back trouble prior work with Norman, Dr Darby could not recall being given such a history. He was unaware of the lumbar pathology appearing on the CT scan of 27 October 2005. He was also unaware of the CT scan on 31 July 2017.
As for there being no reference to any history of forklift-driving in the report of 28 June 2018 to Dr Lunz, Dr Darby agreed it was possible these duties had not been mentioned to him at that time. As for the reference in that report to a ‘preceding accident’, Dr Darby clarified that his understanding was that there had not been a single frank incident. He said: ‘So, I don’t believe that there would have to be one discrete injury or accident, there could be repeated injuries in my opinion’. On further cross-examination, Dr Darby conceded it was ‘possible’ that, absent any repeated injuries to the spine in the course of employment, the pre-existing lumbar pathology seen on the scans would have been sufficient to draw the infection and cause the abscess. In response to a direct question, he agreed that infection ‘could have seeded or developed spontaneously without a trauma or haematoma’. Dr Darby it was also possible that there was a ‘pre-disposing pathology’ in the spine and that some blunt trauma or repeated low-grade trauma has worsened the pre-existing point of weakness and the infection had occurred. In re-examination, Dr Darby said ‘small bits of haematoma’ could lead to the attraction of the bacteria to the site of the pre-disposed disc bulge. He also said that if there was trauma to that site, he believed it ‘would have contributed’.
As for Mr Rushin’s complaints of vomiting and sweating prior to leaving work on 10 October 2017, Dr Rushin thought it was ‘more than likely’ this was the body’s chemical response to the abscess building up.
Dr Richard Lunz, GP, completed a medical questionnaire dated 25 May 2018 in which he responded to a question about previous reports of the same or similar conditions as follows: ‘Back pain – 2014 but different side’. In answer to a question about the mechanism of the injury, he stated: ‘Described while working with containers’.
Dr Jamie Young, pain management specialist with the Barbara Walker Centre for Pain Management, recorded notes of an outpatient attendance on 18 June 2018. Under the heading ‘Pain’, he recorded: ‘2017 October. Was at work going in and out of containers his back use {sic] to hurt and didn’t take much notice of it. Loading things onto forklift. Kept working. 6 weeks after this he felt sick and parked his fork life [sic]’. The history of having two minor collisions on the way home and collapsing at home was noted.
Dr Phillip Ead, GP of Hoppers Lane General Practice, provided reports dated 20 November 2019 and 27 November 2020. The record of attendance at Wyndham in February 2017 complaining of back pain after unpacking a container was noted. Dr Ead stated it was possible that Mr Rushin’s work which involved loading and unloading of heavy items and driving of uneven ground whilst in a forklift caused or exacerbated his condition. There was no capacity for work and it was unlikely Mr Rushin would be able to return to physical work in the future. There was ongoing severe pain, reduced mobility and difficulty with activities of daily living.
Medico-legal opinions
Mr John O’Brien, orthopaedic surgeon, provided a medico-legal report for Mr Rushin’s solicitors dated 24 October 2019. The history was that in August 2017 Mr Rushin had noted that, when driving the forklift, the rear wheels would bounce on uneven surfaces which would jar his back and precipitate pain. This increased in frequency and back pain was aggravated by manual lifting. A history of becoming ill on the last date of work [incorrectly stated to be 12 October] was obtained including the two collisions on the way home. By way of further history, Mr Rushin reported 15 years of intermittent low back pain for which he had seen his GP and been prescribed medication but lost no time from work. The July 2017 CT scan suggested a chronic infective process and a history of increasing pain would suggest employment was an aggravating factor. The minor motor vehicle collisions and the fall at home had not appeared to contribute to the level of pain or the pathological process. Given the severity of pain and disability, the prognosis was poor with no real likelihood of a return to work.
Mr Thomas Kossman, orthopaedic surgeon, provided a medico-legal report for Mr Rushin’s solicitors dated 16 December 2019. Around August 2017 Mr Rushin had to drive his forklift through a large pothole every day several times. In October he became ill with sweating and vomiting. There was a history of the two collisions and of falling on his buttocks at home. The diagnosis was of osteomyelitis, discitis and probably facet joint septic arthropathy at L4/5 with epidural phlegmonous change. The prognosis was poor with incapacity for pre-injury employment and being at risk of never returning to any employment. In relation to causation, Mr Kossman shared Dr Darby’s opinion that exposure to ‘repeated trauma in his workplace may have contributed to the infection in the lumbar spine’.
Associate Professor Umberto, occupational physician, provided a report to the WorkCover Agent dated 5 June 2018. In September 2017 Mr Rushin had noticed new thoracolumbar back pain when driving his forklift over ramps, through ditches or into potholes. Pain progressed until 10 October 2017 when he left work feeling unwell. Mr Rushin gave no history of prior similar back pain or chronic conditions leading to infection. The diagnosis was of bacterial vertebral osteomyelitis and discitis treated surgically. Dr Boffa noted that infection was known to deposit in sites of pre-existing spondylosis causing osteomyelitis discitis and abscess. Vigorous teeth-brushing may have been responsible for the bacterial infection. Forklift driving exacerbated thoracolumbar pain arising from the infection but was not the cause. Mr Rushin had not capacity for work for the foreseeable future.
Dr Joe Sasadeusz, infectious diseases physician, provided reports for the defendant’s solicitors dated 8 August 2019 and 31 October 2019. Mr Rushin’s history was ‘rambling’ and it was ‘difficult to pin him down on details’. Mr Rushin reported having jarred his back when he hit a depression in concrete while driving the forklift at the workplace. He felt sick and wanted to vomit. Diagnosis was discitis and osteomyelitis of his vertebrae together with a psoas abscess. There was a history of long-term disc problems but no long-term pain issues. Dr Sasadeusz observed there is good evidence in the literature that trauma to the spine can indeed result in a focus of subsequent infection. As for causation, the issue as to what the preceding trauma might have been was difficult to ascertain given the discrepancy in what exactly the incident was. The two motor vehicle collisions and the fall at home were noted and ‘any one of these could have contributed to a focus of infection’. It was ‘impossible’ to determine which of these may be relevant. Dr Sasadeusz stated that there was a discrepancy about whether there was chronic pain with degenerative disease in the spine before 10 October and that ‘if that indeed is the case then that may have contributed to his current condition’.
ANALYSIS
The legal and evidentiary onus of proof rested with Mr Rushin to establish, on the balance of probabilities, an entitlement to compensation for injury in accordance with the Act.
As both parties identified in submissions, this case turned on the question of whether or not there was a causal relationship between Mr Rushin’s employment with Norman and his injury.
The starting point was to determine the nature of ‘injury’ under the Act as that is the basis for deciding the correct test to apply as to causation.
The Act defines ‘injury’ to include: ‘a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease’: s.3
It was undisputed that Mr Rushin had pre-existing and underlying degenerative change of the lumbar spine.
In written submissions, however, the plaintiff contended that the ‘abscess and subsequent disc and soft tissue injury of (and around) the spine’ was most appropriately categorised as ‘injury simpliciter’ or a ‘new injury’.[1][2] On that basis the evidentiary and legal burden of proof facing the plaintiff was to establish that the injury arose out of or in the course of employment under s.39(1) of the Act. In urging this approach, the plaintiff referred the Court to the decision of his Honour Rendit J of Meddis v VWA & Anor[3]. Meddis was decided in 1996 and was governed by the Accident Compensation Act 1985. The facts related to a distinctly different medical scenario involving a finding that an anterior venous malformation (causing stroke) was an ‘injury simpliciter’.
[1] Plaintiff’s Submissions (‘PS) at [2]
[3] [1996] VCC 8
On the other hand, the defendant in submissions urged against a finding that characterised the infection as as a ‘new injury.’ This would be inconsistent with the tenor of the plaintiff’s case which was alleging that he suffered an aggravation injury to his spine in the course of his employment, which in turn caused the infection to ‘focus on that area and the abscess to form’. Further, the pre-existing and underlying degenerative condition of Mr Rushin’s lumbar spine meant he was not entitled to compensation under the Act unless the Court was satisfied that his employment was a significant contributing factor to the aggravation, acceleration, recurrence, deterioration, exacerbation of that pre-existing condition[4]. That was the appropriate test as set out in s.40(3)(c) of the Act.
[4] Defendant Submissions (‘DS’) at [9]
Each case must be determined on its own facts. As his Honour Rendit J observed in Meddis: ‘Medical problems do not always produce clear cut solutions and judging by the present medical evidence this case is no exception’.[5]
[5] Ibid
I turn therefore to the medical diagnosis of injury before returning to the legal principles governing causation in the case.
Nature and Diagnosis of Injury
In its Amended Statement of Claim dated 17 November 2020, the plaintiff pleaded, in addition to ‘low back injury’, the following particulars of injury:
· Aggravation, acceleration, recurrence, deterioration, exacerbation of low back injury, particularly at the L4/5 level; and
· Spinal abscess (L4/5 epidural abscess) treated by laminectomy and washout of abscess;
· Bacterial vertebral osteomyelitis and discitis.
On diagnosis, I turn to the expert opinions of the two infectious diseases specialists in this case, Dr Darby and Dr Sasadeusz. Both diagnosed, essentially based on the MRI scan of 13 October 2017, osteomyelitis, facet arthropathy at L4/5 and epidural phlegmon as well as multi-focal right psoas abscesses.
Whilst the infectious process is arguably a distinct pathology, the infection has, according to both experts (and on the report of 13 October 2017 MRI scan), ‘seeded’ or developed at a vulnerable site or ‘a weak point’ (as Dr Darby described it) being the underlying degenerate lumbar discs (referred to in the scan as the facet arthropathy). Degenerative change at L4/5 appeared in the lumbar spine CT scan of 9 August 2017 showing multi-level degenerative canal stenosis, an L4/5 disc protrusion involving the exiting L4 nerve root and a disc bulge at L2/3 impacting the L3 nerve root. Pathology at L4/5 was also evident as far back as the lumbar CT scan of 2005.
Accordingly, I accept the defendant’s submission that this is an aggravation case in which the compensable aggravation has ‘in turn led to the development of the abscess and infection’.[6]
[6] Defendant Reply to PS at[2]
On my examination of the evidence, the appropriate finding as to diagnosis of injury is of an aggravation, acceleration, recurrence, deterioration, exacerbation of a pre-existing low back injury, particularly at the L4/5 level and involving a spinal abscess and bacterial vertebral osteomyelitis and discitis.
Such a finding is, as I noted previously, also supported by the plaintiff’s pleaded particulars of injury which included reliance upon aggravation of a low back injury at L4/5.
Legal Principles
I turn now to the legal principles governing causation.
Given my findings as to the nature and diagnosis of injury, the Act is plain that Mr Rushin was not entitled to compensation under the Act unless he established, on the balance of probabilities, that employment was a ‘significant contributing factor’ to the diagnosed injury: s40(3)(c). Of course, as has been observed previously, there is ‘a very substantial overlap between the two tests and, in many cases, there is no discernible difference between them’.[7] In my view, given the plaintiff’s complaint related to the duties he performed in the course of his employment, this was such a case.
[7] Attanayake v Simplot Australia Pty Ltd [2019] VSC 387 at [38] citing Zlateska v Consolidated Cleaning Services Pty Ltd VSCA 141
In any event, I accept the defendant’s submission that the correct test in this case is that of ‘significant contributing factor’.
In determining whether employment is a ‘significant contributing factor’ to a worker’s injury, the Act sets out mandatory considerations in Clause 25 of Schedule 1. These are: the duration of the current employment; the nature of the work; the particular tasks of the employment; the probable development of the injury occurring if that employment had not taken place; the existence of hereditary risks; the lifestyle of the worker; and the activities of the worker outside the workplace. It is well-established, as the Court of Appeal made clear in St Mary’s School v Askwith, that consideration of ‘significant contributing factor’ involves resolution of an essentially factual enquiry, the question being one of degree, requiring evaluation[8]: As Ginnane J stated in Sensis Pty Ltd v Jones, in applying Ashley JA’s analysis in Askwith,: ‘The existence of other contributing factors does not preclude a finding that a worker’s employment was a significant contributing factor’[9] Certainly, it is well-established law that the Act recognises ‘a multiplicity of causes’.[10]
[8] [2011] VSCA 90 at [13
[9] [2018] VSC 754 at [93].
[10] Grech v Orica Australia Pty Ltd [2006] VSCA 172 at [58]
As to what is meant by the adjective ‘significant’ in terms of assessing the weight of the workplace incident, the Court of Appeal has held that it must be of ‘considerable amount or effect’[11]
[11] [2011] VSCA 90 at [14].
Further, the defendant submitted, the spinal abscess or infectious process, was in the nature of a consequential injury or condition. That being so, ‘the next step for the plaintiff … in establishing an entitlement to compensation with respect to the infection in the spine is that the infection itself, much like a consequential psychological condition … must be causally linked to the compensable aggravation’. The test applicable to a consequential injury is in accordance with the ‘medical question’ set out in s.3(i) of the Act. The plaintiff needed to establish that that the infection resulted from, or was materially contributed to by any the aggravation to the spine of the employment.[12]
[12] DS at [13]
My finding in relation to diagnosis of injury was of an acceleration, recurrence, deterioration, exacerbation of a pre-existing low back injury, particularly at the L4/5 level and involving a spinal abscess and bacterial vertebral osteomyelitis and discitis. On one view, it is arguably the case that the seeding of the infectious process (the spinal abscess) upon a vulnerable site of pre-existing pathology was itself an aggravation or exacerbation or deterioration of the pre-existing lumbar pathology. On that interpretation, the plaintiff would not be required to apply the ‘next step’ as submitted by the defendant.
On the other hand, as stated previously in these reasons, on the medical evidence, the infectious process is distinct pathology to that of the underlying degenerative discs. For example, Dr Darby refers to ‘the pre-disposing pathology’ (by which he means the degenerate discs) as distinct from ‘the infection’. It is a quite different scenario to, say, aggravation by way of the prolapse of an already degenerate disc which then impinges the exiting nerve root.
As was stated by Ashley JA in Grech v Orica Australia Pty Ltd: ‘Most often, a consequence is compensable if it “results from or is materially contributed to” by an injury.[13]
[13] [2006] VSCA 172 at [58]
On balance, on the evidence and as a matter of law, I agree with the defendant’s analysis as to the infection and abscess being in the nature of consequential injury. The plaintiff therefore also needed to establish that that the infection resulted from, or was materially contributed to by any the aggravation to the spine of the employment.
In examining the medical evidence, I am guided by the well-known principles set out by his Honour Justice Bell in Pulling v Yarra Ranges Shire Council.[14] In particular, I note the obligation to examine the whole of the medical evidence even where it may have been undermined by other evidence, including evidence that the worker may not have been fully frank with a doctor.[15]
Credit of the Plaintiff
[14] [2018] VSC 248 at [50] to [55]
[15] Ibid at [50]
Mr Rushin’s credit was attacked heavily by the defendant. The main ground of attack was the absence of contemporaneous complaint to any GP nor at the time of admission at Werribee Mercy nor at St Vincent’s of his work with Norman nor, specifically, of the forklift driving. Mr Rushin’s attribution of back pain to his duties and to jarring by the forklift with Norman was ‘a later invention’ for the purpose of claiming compensation[16]. Mr Rushin ought not be accepted as a witness of truth. Rather than accepting the plaintiff’s version of events, the Court ought to accept only the contemporaneous medical records and the evidence of Mr Paulo.[17]
[16] DS at [48]
[17] DS at [40]
The plaintiff’s submission was that the attack on credit was ‘merely a smoke screen’ with little bearing on whether trauma was sustained during the relevant period.[18] I disagree with that submission. The authorities are clear as to the critical importance of the plaintiff’s credit in cases of this kind as was recently observed by the Court of Appeal in Johns v Oaktech Pty Ltd[19]
[18] PS at [34]
[19] [2020] VSCA 10 at [76].
Mr Rushin needed to persuade me that his evidence was credible and reliable. He also needed to establish the reliability of the histories he gave to the medical witnesses, whose opinions were premised on the accuracy of his accounts to them. In particular, opinions in relation to the causal nexus between the nature of Mr Rushin’s work and the onset of the infection and abscess was based on histories of driving the forklift over uneven ground.
In relation to his duties, Mr Rushin told the Court that he drove over the long pothole thirty times a day and it hurt his back ‘every time’. The pain would be ‘severe’. In cross-examination, he said: ‘When I drove through, it was just sharp, yeah, it didn’t – it didn’t stay, like for agonising pain, it just went, yeah, sharp’. His other complaint about his work was that ‘multiple times’ he had hurt his back ‘real bad’ when driving in and out of shipping containers on a wooden ramp.
The evidence was that Mr Rushin attended his GP about back pain in February 2017, on 28 July 2017 and on 13 September 2017. However, on none of those occasions was any history recorded that referred to forklift driving nor to his back being jarred by driving over uneven ground. Mr Rushin was cross-examined rigorously and at length on this issue. He said at numerous points in his evidence that his explanation for the absence of complaint to his GP was that he ‘thought it was his discs’ He also said he had ‘boxes of Panadeine Forte’ at home from previous prescriptions.
Mr Rushin was similarly cross-examined as to the lack of history as to his work duties when he was triaged at Werribee Mercy and at St. Vincent’s. Mr Rushin’s explanation was that the pain was such severity he could not think or talk properly and his sister ‘had done all the talking’. He could not say why this fact was not recorded in the triage notes. The defendant submitted that Mr Rushin’s account in relation to these histories ‘does not stand up to scrutiny’.[20] It is also highly unlikely that his sister was even present at St Vincent’s given it was an intra-hospital transfer.
[20] DS at [52]
The plaintiff’s failure to call Mr Rushin’s sister to corroborate his account ought to lead to an adverse inference pursuant to the principles in Jones v Dunkel[21] that the sister’s evidence would not have assisted the plaintiff’s case.[22] The plaintiff did not provide an explanation for the failure to call Mr Rushin’s sister and I accept the defendant’s submission that it is likely her evidence would not have been helpful to Mr Rushin’s case. I consider, however, this matter to be of limited weight going only to the Mr Rushin’s evidence that his sister, rather than he, did the talking at the time of admissions at Werribee Mercy and St. Vincent’s.
[21] (1959)101 CLR 298
[22] DS at [53]
In my opinion, in evaluating the whole of the evidence particularly Mr Rushin’s evidence, the more likely explanation for his failure to give a full history upon being triaged relates to two factors. It is probably explained firstly by him being in an acute phase of illness (as Dr Darby observed of this early period of hospitalisation) and experiencing ‘the worst pain he had had in his life’. The second was for the same reason as his failure to given full histories to the GP on the three occasions he attended for back pain in 2017. That is because of his belief (I consider genuinely held) that the problem was ‘his discs’ and because pain experienced on the forklift was transient. As he described it, ‘it was just sharp, yeah, it didn’t stay like for agonising pain, it just went sharp, yeah…’
In submissions, in terms of its contention that the plaintiff was not a credible witness, the defendant also relied upon the various inconsistencies in histories provided at different points to the doctors. For example, on 5 June 2018 he told A/Prof Boffa that in September 2017, he noticed a new thoracic pain ‘when driving his forklift over ramps, through ditches or into potholes’ and on 5 August 2018 he told Dr Sasadeusz that in October 2017 he jarred his back when he hit a depression in concrete.
Certainly, Mr Rushin was not especially articulate which maybe unsurprising given his level of education. He delivered his evidence in a ‘rambling’ manner (as Dr Sasadeusz observed regarding the history he obtained). I agree with the defendant’s submissions that Mr Rushin was inaccurate on several matters and there were contradictions both in his histories to doctors and in his evidence. For example, he initially said his doctor completed his claim form, then he conceded he did. He also said the long pothole could not be avoided, then he said it could be depending upon where the trucks were parked.
My further impression of Mr Rushin was that he had, over many years, developed a degree of stoicism in relation to back pain. He had become accustomed to intermittent flare-ups of back pain and to thinking this was ‘just his discs’. His stoic nature and tendency to just carry on is evident from him not taking time off work for back pain when there were instances of back pain. He conceded, in cross-examination, that he had been essentially managing on his medication since 2003. In my view, Mr Rushin’s stoic nature as well as his assumptions about his underlying disc degeneration and the transient nature of the pain experienced on the forklift, explain, in large part, his delay in seeing doctors in the latter part of 2018 and his lack of complaints to doctors about the nature of his work at Norman.
Overall, weighing the totality of his evidence, I formed the opinion that Mr Rushin was not attempting to deliberately mislead the Court although it is true, as I have observed, that he struggled to give his evidence in a consistent way. On balance, given the inconsistencies or contradictions in Mr Rushin’s evidence, I accept the defendant’s submission that his evidence on disputed matters could not be considered as reliable without other corroborative evidence.
Mr Paulo’s evidence as to the factual circumstances of Mr Rushin’s work duties was therefore most important. I accept the defendant’s submission that to the extent there were inconsistencies on the evidence, the Court ought to prefer the evidence of Mr Paulo[23]. Mr Paulo impressed me as a credible witness. Being no longer employed by Norman, he had no reason to be untruthful about the factual matters put to him. He readily conceded that Mr Rushin attended work in a regular and reliable manner.
Causation and Significant Contributing Factor
[23] DS at [36]
In relation to paragraphs (a) to (c) of Clause 25 as to the definition of ‘significant contributing factor’ as to the nature of the work, I make the following findings of fact on the evidence of Mr Rushin (where unchallenged) and Mr Paulo (where there was a contradiction or inconsistency):
(a) Mr Rushin was employed by Norman for a period of 12.5 months (from 1 September 2016 to 10 October 2017).
(b) The predominant nature of his duties during this year or so was driving a forklift.
(c) The task of forklift-driving around the premises required him to drive over the long pothole in the middle of the yard about twice a day. That was the evidence of Mr Paulo which I as have said I accept. Doing so could not be avoided when loading the trailer (according to Mr Paulo).
(d)The long pot-hole was 15 feet long by 30 cms wide by 2-3 inches deep (evidence which as I noted was unchallenged). As a matter of common sense, the depth of the long pothole meant inevitably the smaller rear wheels of the forklift fell into the depression in the yard’s surface causing an inevitable bump or jolt.
(e) The long pothole was repaired at some point but there was no evidence as to when this happened other than in it being ‘in the same year’ as Mr Rushin’s complaint about it (according to Mr Paulo).
(f) I find that the driving over a 2-3 inch depression in the surface would cause a minor trauma in the form of a jolt or bump.
(g) I also consider it likely that doing so would have provoked pain (at least transiently) in a vulnerable spine such as Mr Rushin’s. Even if pain was not felt (although this was not challenged), both Dr Darby and Dr Sasadeusz observed that trauma to the spine can result in a focus of subsequent infection.
Of course, as the defendant submitted quite correctly, even finding (as I have) that Mr Rushin’s duties involved exposure to repeated mild trauma, the plaintiff’s case as to causation is not yet made out.
As I observed earlier in the reasons, Mr Rushin’s not insignificant history of back trouble extended back over 15 years and pre-dated his work with Norman. That was evident from the clinical records of attendances at Wyndham and the 2005 CT lumbar scan showing multi-level degenerative change including at L4/5. There were some references to activity-inducing pain such as in April 2008 when he had moved a fridge the day before. In other GP attendance, there was no reference to his back pain being related to exertion. He was generally prescribed Panadeine forte and a few times Tramal and, as observed previously in these reasons, his medication allowed him to carry on and do physical jobs.
I turn now to the medical evidence on the question of causation.
I agree with both Counsel that the expert opinions of most assistance in the case were those of the infectious diseases specialists, Dr Darby and Dr Sasadeusz.
Dr Darby’s evidence was, quite appropriately, the subject of rigorous cross-examination on the question of causation. I found Dr Darby to be an impressive and considered witness. Dr Darby had opined that the ‘role of repeated traumas may have contributed’ to his infection of the spine in the workplace (in his report of 9 October 2019). He had also stated that ‘if there was an accident or incident at work in the preceding weeks this could have contributed to the focus of infection’ (in his report of 12 November 2019). These opinions of Dr Darby, the defendant submitted, represented ‘the high point’ of the plaintiff’s case.
However, as the defendant also submitted, it was conceded in cross-examination by Dr Darby that he had no awareness of the pre-existing lumbar spine pathology nor of the existence of the CT scans of 2005 and July 2017. In cross-examination, Dr Darby agreed with the proposition that a spinal abscess ‘could develop spontaneously because of something else going on in the body somewhere else’ unrelated to any trauma. It was ‘possible’ the pre-disposing pathology (meaning the degenerate discs) would have been sufficient to draw the infection ‘in the absence of any trauma’. Dr Darby also said was also ‘possible’ that the pre-existing pathology was ‘a point of weakness’ and that ‘some blunt injury in that site has worsened that and infection has then come in’. When asked which of these two scenarios was the more likely one, Dr Darby said he would find it ‘difficult to weigh a relative propensity with both of these theories but they both could be plausible’.
Dr Sasadeusz had obtained a history of Mr Rushin’s back being jarred when he hit a depression in concrete when driving the forklift. He also had a history of the fall at home and the two minor car collisions on 10 October 2017. Dr Sasadeusz’s opinion, having noted Mr Rushin’s ‘rambling’ history, was that any one of these events could have contributed to a focus of infection and that, if there had have been chronic degenerative disease of the spine, then that may have contributed. He stated that it was ‘impossible’ to determine which of these may be relevant. The defendant submitted that as Dr Sasadeusz’ reports were tendered into evidence they were unchallenged and should be accepted. It is true that Dr Sasadeusz was not required by the plaintiff for cross-examination.
The defendant submitted that the expert evidence of both Dr Darby and Dr Sasadeusz supported the conclusion that there was no probative or persuasive evidence to support a definitive causal link between the development of the infection and the nature of Mr Rushin’s duties with the defendant’. Furthermore, even if it is possible that the plaintiff’s duties contributed to the onset of the condition, there is ‘at least one other possible cause open on the evidence – a cause that is equally if not more possible than his duties – being that the bacteria that caused the infection in the spine due to pre-existing vulnerability, and not due to any repeated trauma or compensable aggravation’. [24]
[24] DS at [61]
On the other hand, the plaintiff submitted that ‘a close examination’ of the evidence of Dr Darby and Dr Sasadeusz revealed both doctors ‘support the probability that an incident or event caused trauma to the plaintiff’s spine at L4/5 and that such trauma focused the infection’[25]. In particular, during re-examination, Dr Darby, as the plaintiff submitted, was taken again to the CT scans of 2005 and 31 July 2017 and was asked specifically whether his knowledge of the scans caused him to change his opinion. Dr Darby stated that he still held the belief that ‘there could be a role for a contribution of blunt trauma’ but there would be, because of the underlying pathology, a propensity for that site to be where the infection has gone’.
[25] PS at [13]
Dr Darby’s opinion that ‘if there was trauma to the site, I believe it would have contributed to the injury’ was based on a full history (including the scans) and had been subjected to cross-examination. This conclusion, the plaintiff submitted, represented ‘the strongest and most considered medical opinion in respect of causation in this case’. I agree with the plaintiff’s submission in this regard.
Moreover, to the extent that there was inconsistency between the opinions of Dr Darby and Dr Sasadeusz, I prefer Dr Darby’s opinion. I do so on the grounds that he was the treating clinician who saw the MRI scan first-hand and observed the extent of Mr Rushin’s illness first-hand upon his admission at Werribee Mercy. As I have also observed, his opinion was rigorously tested in cross-examination.
Relevant also to the analysis of causation was the evidence in relation to the timing of Mr Rushin’s illness (nausea, vomiting, heavy sweating). Dr Darby described these symptoms as consistent with infection (in his report of 12 November 2019). There is no dispute that those symptoms were apparent before Mr Rushin departed work on 10 October 2017. He was observed to look ill and told to go home by Mr Paolo.
There is some discrepancy on the evidence as to how long before 10 October 2017, these symptoms had been present. At one point in his evidence Mr Rushin said he been unwell with nausea, sweats and vomiting since about the time of the July 2017 scan and at another point he thought it was from about two weeks before ceasing work. When asked whether he had observed Mr Rushin as being visibly unwell, Mr Paulo said that he had ‘on the last day’ (meaning 10 October 2017). Mr Paulo also said in evidence that ‘due to illness’ he had put Mr Rushin off doing any manual handling for about a month prior to him ceasing work. Mr Paulo did not recall any prior complaints of back pain and it was not clear as to what precisely was meant by ‘illness’ by Mr Paulo in this context with some reference to a query over cancer. Nevertheless, I consider it to be a matter of some weight relevant to a finding that Mr Rushin had been observably unwell prior to his last day at work. It is also consistent with Dr Darby’s evidence that the extent of the infection and size of the abscess would not have developed in an acute sense within hours, but rather days to weeks.
Dr Darby’s conclusions in relation to timing were contrary to Dr Sasadeusz’ opinion (relied upon by the defendant) that ‘if the only significant injury’ on around 9 October 2017 was the fall at home then it is likely that trauma precipitated the infection. I agree with the plaintiff’s submission that Dr Sasadeusz’ opinion is flawed in this regard because the evidence, as I have said, is that Mr Rushin was already demonstrating symptoms of infection prior to his departure from work on 10 October 2017.
Clause 25(d) of the Act in relation to ‘significant contributing factor’ requires me to consider the probable development of the injury occurring if that employment had not taken place. Taking into account the nature and chronicity of Mr Rushin’s underlying lumbar spine condition, the question really is whether, on the balance of probabilities, the aggravation injury would have developed if ‘the employment’ had not taken place. By ‘employment’, I refer to my findings set out above as to the nature and circumstances of Mr Rushin’s duties and tasks at Norman. As noted earlier in these reasons, the defendant had submitted that (other than the duties with Norman) there was ‘at least one other possible cause open on the evidence – a cause that is equally if not more possible than his duties – being that the bacteria that caused the infection in the spine due to pre-existing vulnerability’. I am not persuaded of the probability of the scenario. Weighing the totality of the evidence, including my findings as to the nature of his work and duties performed, as well as Mr Rushin’s pre-existing history, I am of the view that there was a possibility of the aggravation injury occurring if the employment had not taken place but not a probability
The role of the other events (the two collisions and the fall) on 10 October 2017 deals with the final consideration of Clause 25 relating to ‘activities outside the workplace’ in paragraph (g). In my view, given Dr Darby’s evidence as to timing, none of these events contributed significantly to the injury. I don’t believe, on the evidence, this is case where ‘lifestyle of the worker’ under paragraph (f) has any bearing on my determination.
Having considered each of the matters in Clause 25, that leads to me to the resolution of what is an essentially factual enquiry, the question being one of degree, requiring evaluation[26].
[26] [2011] VSCA 90 at [13
The defendant submitted that, weighing the whole of the evidence and even if there is acceptance of there being trauma to Mr Rushin’s back in the workplace, the evidence does not meet the requisite standard of proof on the balance of probabilities. The defendant submitted that the expert opinions of Dr Darby and Dr Sasadeusz accepted that employment was, at best, a possible cause. In this regard, it is true that Dr Darby, under cross-examination, essentially said there were two plausible theories, one where trauma has played a part and one where the infection seeded spontaneously at a weak point of the spine and that Dr Sasadeusz described the task of deciding causation as ‘impossible’ given the multiple scenarios.
On the question of how the Court ought to deal with expert opinions as to the ‘possibility’, the defendant referred to Dahl v Grice, a decision of the Full Court of the Supreme Court.[27] His Honour Young CJ there stated that the Jury (or the trier of fact) ‘must say on all the evidence whether the conclusion contended for was more probable than not. The fact that the experts … may have said the word possible to describe the causation, however, itself obscures the true position. The expert evidence should give the medical or scientific basis and if appropriate the statistical basis of the requisite connection but it is then for the jury to say whether the connection is established to their satisfaction’.
[27] [1981] VR 513
As the trier of fact, I must therefore consider the totality of the evidence in weighing whether or not, on the balance of probabilities, the plaintiff has discharged the legal and evidentiary burden proof. In evaluating the whole of the evidence in this matter, I am satisfied, on the balance of probabilities, that Mr Rushin’s employment was a significant contributing factor to the onset of the diagnosed aggravation injury as follows:
(a) My findings, as set out previously in these reasons, in relation to the nature of Mr Rushin’s duties and the circumstances in which he performed his tasks. Specifically, that he was required in the performance of his duties with Norman over about a twelve month period (or some lesser period subject to when the long pothole was repaired) to drive his forklift about twice a day across a 2-3 inch depression in the ground causing a bump or jolt.
(b) Whilst there was pain provoked by this jolting, it was sharp and transient rather than constant in nature.
(c) Dr Darby’s evidence (which was based on full knowledge of the pre-existing lumbar pathology as shown on the prior scans) was that if there was trauma in the period preceding 10 October 2017, then ‘it would have contributed’.
(d)The onset of symptoms of illness including nausea and vomiting prior to ceasing work and on the way home on 10 October 2017 (as well as the change of duties a month beforehand due to illness).
(e) Dr Darby’s opinion that the really sizeable abscess seen on MRI on 13 October 2013 would have taken days to weeks to develop.
(f) The plaintiff, while having a long and pre-existing history of episodic back pain, was a stoic individual who had managed intermittent symptoms over a long period of time with medication. It is reasonable to assume that his tendency to take medication and keep working was a factor in him continuing to do (largely without complaint) so in the weeks and months leading up to 10 October 2017.
On the question of whether the contribution of employment to the aggravation was ‘significant,’ I find therefore, on the balance of probabilities, that the nature of his work with Norman and the circumstances of performing his tasks over a twelve month period was of ‘considerable amount or effect’.
Causation and whether the infection or spinal abscess was ‘resulted from or materially contributed to’ by the compensable aggravation
Having determined that there was trauma that was a significant contributing factor to the aggravation, the ‘next step’, as the defendant submitted, is to determine whether the seeding of the infection resulted from or was materially contributed to by the compensable aggravation (the trauma related to his duties). Whilst the defendant did not make submissions on this issue (other than to contend it was a required ‘next step’), there is, inevitably, in my opinion, a very substantial overlap between the concepts of ‘significant’ and ‘material.’ That is certainly so from a practical perspective in an analysis of causation and the weighing of contributing factors.
As I observed earlier in these reasons, Dr Darby did refer to the possibility of the pre-disposing pathology (meaning the degenerate discs) being sufficient to draw the infection ‘in the absence of any trauma’. Dr Darby also said it was ‘possible’ that the pre-existing pathology was ‘a point of weakness’ and that ‘some blunt injury in that site has worsened that and infection has then come in’.
In deciding the question of whether the compensable aggravation materially contributed to the seeding of the infection, I have weighed the totality of the evidence referred to previously in these reasons. In particular, I have taken into account my findings as to the nature of the work and the circumstances of performing the tasks together with Dr Darby’s opinion that if there was trauma in the period preceding 10 October 2017 then ‘it would have contributed’ to the infectious process.
I am satisfied, on the balance of probabilities, that the infectious process (including the spinal abscess) was materially contributed to by the aggravation caused by his employment.
Work Capacity
It was not disputed by the defendant that Mr Rushin has no current work capacity that results from or is materially contributed to by the condition of his lumbar spine and that his incapacity commenced on 10 October 2017.[28]
CONCLUSION
[28] DS at {27]
For the grounds set out in these reasons, I find:
a.Mr Rushin suffered an injury in the nature of an aggravation, acceleration, recurrence, deterioration, exacerbation of a pre-existing low back injury, particularly at the L4/5 level and involving a spinal abscess and bacterial vertebral osteomyelitis and discitis. with a nominated date of injury of 10 October 2017;
b.Mr Rushin’s employment was a significant contributing factor to his injury.
c.Further, the infection or spinal abscess resulted from or was materially contributed to by the compensable aggravation.
d.Mr Rushin had no current work capacity from 10 October 2017 and that such incapacity results from or is or was materially contributed to by the injury.
e.Mr Rushin has no current work capacity.
f.He is entitled to reasonable medical and like expenses in accordance with the Act.
[2] PS at [1] – [2]
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