Svetlik v Whelan Earthmoving
[2015] VMC 38
•10 DECEMBER 2015
| IN THE MAGISTRATES COURT OF VICTORIA |
AT LATROBE VALLEY
WORKCOVER DIVISION
Case No.F11779273
| MARK SVETLIK | Plaintiff |
| v | |
| WHELANS EARTHMOVING PTY LTD | Defendant |
---
MAGISTRATE: | S GARNETT |
WHERE HELD: | LATROBE VALLEY |
DATE OF HEARING: | 3 & 4 DECEMBER 2015 |
DATE OF DECISION: | 10 DECEMBER 2015 |
CASE MAY BE CITED AS: | SVETLIK v WHELAN EARTHMOVING |
MEDIUM NEUTRAL CITATION: [2015] VMC038
REASONS FOR DECISION
---
Catchwords: S 109 Rejection of Claim - Whether cervical injury arose out of or in the course of employment – declaration of liability that injury occurred for purposes of claim for reasonable medical treatment expenses and for purposes of s 98C/E claim.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Horner | Maurice Blackburn |
| For the Defendant | Mr Richards | Minter Ellison |
HIS HONOUR:
1 Mr Svetlik is 52 years of age and was employed as a labourer/machine operator with the defendant between 29 March 2005 and 1 October 2014. He alleges that he sustained injuries to his neck whilst driving a flat drum roller machine in the course of his employment on or about 2 May 2011. He lodged a WorkCover claim form dated 10 November 2011 which was rejected by Allianz pursuant to s 109 on 30 December 2011.
2 By way of an Amended Statement of Claim dated 24 June 2015 he seeks a determination from the court that he suffered the alleged injury entitling him to reasonable medical and like expenses and a declaration that he is entitled to claim compensation pursuant to s 98C/E of the Accident Compensation Act 1985. Mr Svetlik lodged a s 98C claim for impairment benefits dated 10 April 2015 which was rejected by Allianz pursuant to s 104B on 8 May 2015.
3 The defendant by way of an Amended Notice of Defence dated 16 July 2015 denies liability on the grounds that Mr Svetlik did not sustain an injury which arose out of or in the course of his employment and that his employment was not a significant contributing factor to the recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury.
4 The court heard evidence from Mr Svetlik, a work colleague Mr Ackroyd and the work supervisor Mr Squires. The parties tendered numerous documents, medical and investigation reports together with photos and DVDs of a flat drum roller machine. The issue for determination is whether the alleged incident occurred as asserted by Mr Svetlik.
5 Mr Svetlik gave evidence that he previously sustained injuries to his back as a result of a log truck accident in 2001 for which he sought chiropractic treatment. He told the court that he had previously experienced neck pain on and off over the years without having been subject to a specific injury. He said that the injury to his neck occurred whilst he was driving the flat drum roller machine when working on a collapsed road at Mt Beauty in early May 2011. He told the court that he was not wearing a seatbelt whilst operating the machine because he was working on a steep and slippery terrain and the wearing of a seatbelt would have impeded his ability to get out of the cabin if an incident occurred. He said that he was driving the machine on a rock ledge, which he described as being like a “billy goat track”, at walking speed, being approximately 10 km/h, when he drove over a rock the size of a “fist” or 2-3” in height, which caused the machine to tilt sideways resulting in whiplash movement to his neck.
6 Mr Svetlik told the court that he experienced immediate pain in the back of his neck extending to his left shoulder and that he also experienced a tingling sensation in the fingers of his left hand. He said that he reported the incident and injury to his supervisor, Mr Squires and also told a work colleague, Mr Heyward that he had injured his neck. He told the court that when he reported the incident to Mr Squires both Mr Heyward and a fellow work colleague, Mr Ackroyd were present.
7 Mr Squires gave evidence that the flat drum roller weighed between 10 and 12 tonne, had two speeds, being 10 to 12 km/h when operated at ‘walking pace’ and 5 to 7 km/h when operated at ‘turtle pace’ when rolling the surface and crushing rock. He told the court that when rolling the road a vibrating mechanism is engaged to either push the rocks into the surface and/or to crush them. He disputed that the rock would have caused the cabin of the roller to tilt as stated by Mr Svetlik and said that the surface was clay based, although he conceded that he did not know the type of rock in question. He said that the weight of the machine would have caused the rock to break. He told the court that the drum is on a pivot and moves separately to the cabin which takes any ‘kickback’ from the steering preventing any impact on the cabin.
8 Mr Squires gave evidence that Mr Svetlik did not report the incident or injury to him as if he did he would have filled in the necessary incident and injury report forms. He also said that he conducted tool box meetings every morning before work commenced and at no stage did Mr Svetlik mention the incident, injury or ongoing complaints of neck pain. He told the court that he first became aware of the alleged incident and injury after Mr Svetlik lodged his claim form in November 2011. During cross-examination, he agreed that the drum of the machine was hollow and that most of the weight was at the back of the machine. He agreed that if the drum roller machine is travelling at ‘walking pace’ (10-12km/h), the operator should slow down because, “at some point you must ride up on the rock”. He also conceded that the explanation given by Mr Svetlik that he was jolted when he drove over the rock was plausible.
9 Mr Ackroyd gave evidence that he recalled Mr Svetlik complaining of being hurt in May 2011 when he was “thrown around the cabin in the roller”. He said that he observed Mr Svetlik holding his lower back and soon after he observed Mr Svetlik talking to Mr Squires although as he did not hear the conversation he was unable to say whether Mr Svetlik reported the incident to him. Mr Ackroyd told the court that Mr Squires was “not careful about writing reports”. He told the court that the flat drum roller that was operated by Mr Svetlik was used as a finishing roller to pound divots out and to make the base firm. He told the court that when being driven at walking pace and over rock the pivot point of the drum roller will only pivot to a certain point and thereafter the drum roller will tip as will the cabin. He said that the terrain on which they were working at the time was narrow, steep and unsuitable for those machines as it was very “bumpy”. He said the ground consisted of dirt and rock and if you drove over a rock the size of a “fist”, the impact would throw you around. He told the court that the rock in that area was black granite which is an extremely hard rock but was unable to say if the rock in which Mr Svetlik drove over was of that type.
10 Mr Svetlik gave evidence that he sought medical treatment from a Bowen therapist in June 2011 and subsequently sought treatment from his chiropractor, Mr Long, who had previously treated him for his back condition. He told the court that as his condition did not improve he then attended Dr Kinsella who arranged for him to undergo CT scans and referred him to a Neurosurgeon, Mr Wang. Mr Svetlik told the court that he delayed lodging his WorkCover claim form because he thought his condition would improve. He also said that he paid for the treatment he was having on his neck as he was receiving treatment at the same time for his back symptoms. During cross-examination, he was questioned about the fact that the medical records indicated that he had received treatment for neck symptoms prior to May 2011. He said that he was unable to provide an explanation apart from confirming that he had experienced neck symptoms on and off over the years. He told the court that after the incident in May 2011 he regularly complained of neck pain. He told the court that he did not complete an Incident Report Form as that was the responsibility of Mr Squires. Mr Svetlik gave evidence that shortly after the incident his role was changed from being a drum roller operator to manoeuvring the chute at the rear of concrete trucks which he found to be an easier job.
Medical Evidence
11 The medical records of the Lakes Chiropractic Clinic indicate that Mr Svetlik first attended on 19 April 1993 in relation to complaints of back, neck and right shoulder symptoms. The records, whilst difficult to read indicate attendances for neck and right shoulder symptoms in September 1998, 29 July 1999, 17 August 2001, 23 January 2002, 5 May 2003, 29 October 2004 and 14 October 2005. The records also indicate attendances for left shoulder symptoms on 5 December 2008, 6 March 2009 and 7 September 2009.
12 The records of the McMillan Chiropractic Centre in Sale records a history of lower back problems commencing in 2002 as a result of a log truck accident. They indicate that Mr Svetlik first attended on 30 September 2009, principally in relation to lower back pain with Mr Svetlik providing a history of previously experiencing neck pain and stiffness. The records indicate attendances between 30 September 2009 and 19 December 2011 with chiropractic adjustments occurring on a regular basis. On 26 May 2011, Dr Long obtained a history from Mr Svetlik that he had hurt his neck and low back. On 8 September 2011, Dr Long recorded that Mr Svetlik had been experiencing pain in his left hand “since MVA in March. Side impact”. The records reveal ongoing complaints of neck and left hand pain.
13 Dr Kinsella reported that he first saw Mr Svetlik on 4 November 2011 in relation to the drum roller incident in April. He arranged for a CT scan of the cervical spine which was performed on 7 November 2011 which was reported as indicating mild to moderate C3-4 disc degenerative change and a left para-central disc bulge at C5-6 impinging the left C6 nerve root and right C7 nerve root. Dr Kinsella referred Mr Svetlik to Neurosurgeon, Mr Wang and noted that by 22 February 2012, Mr Svetlik told him his symptoms had mostly resolved. Dr Kinsella reported that he did not see Mr Svetlik between 22 February 2012 and 8 August 2014 whereupon he obtained a history that Mr Svetlik experienced stiffness in the neck a few times a month, some tingling down his left arm a couple of times a month and soreness from his shoulder to elbow when lifting something heavy. A subsequent CT scan dated 12 August 2014 indicated loss of disc height at C3-4 and compression of the left C6 nerve root caused by a disc osteophyte complex at C5-6.
14 Mr Wang reported to Dr Kinsella on 22 December 2011. He obtained a history of a whiplash injury in May 2011 whilst driving a flat drum roller with immediate neck, shoulder and arm pain. Mr Wang noted that the CT scan demonstrated a left sided C5-6 disc prolapse which was the cause of his symptoms. He recommended that Mr Svetlik have a CT guided steroid injection to the left C5-6 foramen. He suggested that if there was no improvement and an MRI Scan confirmed the disc prolapse, that Mr Svetlik would likely require surgery in the form of a discectomy and fusion.
15 Dr Kenna, Physician, assessed Mr Svetlik for Allianz on 23 January 2012. On the history provided, medical reports and radiological reports viewed, Dr Kenna accepted that there was a relationship between Mr Svetlik’s condition and his employment. He noted that with a decrease in symptoms relating to the incident, ongoing symptoms may be due to the underlying degenerative changes in the spine. He diagnosed that Mr Svetlik sustained an aggravation of underlying degenerative changes involving the mid to lower cervical spine with a prolapse at C5-6 causing radicular symptoms in the left arm.
16 Mr Brownbill, Neurosurgeon, assessed Mr Svetlik on behalf of his lawyers on 15 September 2015. He obtained a history of injury from Mr Svetlik as was given to the court and noted that on examination Mr Svetlik had restricted neck movement without there being objective neurological abnormality of the upper limbs or signs of radiculopathy. He opined that Mr Svetlik aggravated pre-existing asymptomatic spinal degenerative changes with associated C5-6 disc derangement and nerve root compromise which was consistent with the described jolting forces sustained in the incident in May 2011. He recommended that Mr Svetlik undergo an MRI Scan.
Conclusion
17 I find that Mr Svetlik and Mr Ackroyd were credible and truthful witnesses. I accept their evidence that the drum roller machine and cabin would be impacted if driven over a hard rock the size of a fist.
18 I accept the evidence of Mr Svetlik that the incident in May 2011 did in fact occur, that he reported the incident and complained of persistent neck, shoulder and arm pain. I find that as a consequence of the incident in May 2011, he sustained injury to his cervical spine as diagnosed by Dr Kinsella, Mr Wang and Mr Brownbill and that he should undergo further investigation as recommended by Mr Brownbill.
19 Mr Svetlik is entitled to compensation in accordance with the provisions of the Act as claimed.
0
0
0