Thapa v Martin Brower Australia and TAC
[2020] VCC 1868
•1 December 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised (Not) Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-19-04925
CI-19-05729
| Jagardhan Thapa | Plaintiff |
| v | |
| Martin Brower Australia Pty Ltd | Defendant |
AND
| Transport Accident Commission | Defendant |
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JUDGE: | Judge Tran | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 November 2020 | |
DATE OF JUDGMENT: | 1 December 2020 | |
CASE MAY BE CITED AS: | Thapa v Martin Brower Australia & TAC | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1868 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury; impairment of the spine; multiple injuries
Legislation Cited: s325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic); s93(17) of the Transport Accident Act 1986 (Vic)
Cases Cited:Humphries v Poljak [1992] 2 VR 129; R J Gilbertsons Pty Ltd v Skorsis [2002] 12 VR 386
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards QC with Mr YC Chen | Maurice Blackburn |
| For Martin Brower Australia Pty Ltd | Mr J Batten | Thomson Geer |
For Transport Accident Commission | Mr P Rattray QC with | TAC |
HER HONOUR:
1 Jagardhan Thapa was born in Nepal. After completing a diploma in Singapore, he worked for a number of years in clerical jobs in the petroleum industry. He then moved to Malaysia to commence a degree in mechanical engineering at Monash University’s Malaysian campus. In 2007, he moved to Australia and transferred his studies to Swinburne. He graduated in 2009 with a bachelor degree in mechanical engineering.
2 Unfortunately, after graduating in 2009, Mr Thapa was unable to obtain employment as an engineer. He ended up working at Martin Brower Australia Pty Ltd (“employer”), first as a casual warehouse picker and packer and ultimately as a permanent full-time employee. Over the next few years, he moved from being a level 1 picker and packer, to a level 2 picker and packer, and finally a level 3 picker and packer.
3 On 10 September 2015 at around 7.30pm, Mr Thapa was lifting packed boxes of meat in the freezer department when he felt discomfort in his back. The pain gradually worsened and affected his left leg. Mr Thapa lodged a WorkCover claim. He continued working with the employer on light duties.
4 An MRI performed on 6 October 2015 showed that he had a disc protrusion at L4/5 compressing the L4 nerve root. He was treated with physiotherapy and hydrotherapy, and then on 24 February 2016 he had an L4/5 epidural injection administered. The epidural injection provided Mr Thapa with significant pain relief.
5 As at April 2017, Mr Thapa’s back was not causing him problems.
6 On 1 May 2017, Mr Thapa was involved in a car accident when driving home from work. His car was a write-off and he was taken by ambulance to the Dandenong Hospital. The ambulance and hospital records state that he complained of neck pain radiating into the right shoulder. He recalls that he suffered sharp pain down the length of his spine. He was discharged the following day but returned to the Dandenong Hospital on 5 May 2017 complaining of neck pain radiating into his head and also lower back pain. His provisional diagnosis according to hospital records was of muscular sprain/strains due to the motor vehicle accident.
7 After the car accident, Mr Thapa did not return to work until August 2017. When he did return, he was placed on light duties, which largely comprised completing paperwork and forklift driving. However, in the lead-up to Christmas 2017, his workplace became very busy. He was required to do some manual handling. On 5 December 2017 he was asked to do some picking and packing. His back pain became unbearable. He also felt a tingling or numbness in the back of his left thigh and calf, which he associated with nerve involvement. He was certified unfit for work.
8 Mr Thapa has not worked for the employer since that date.
9 Mr Thapa has brought two serious injury applications. The first is against the employer. He claims to have suffered an injury in about September 2015. He claims that as a consequence of that injury, he has suffered a permanent serious impairment of his spine within the meaning of s325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“WIRCA”) with respect to each of pain and suffering and loss of earning capacity. This application raises the following issues:
a) to what extent is any current impairment of Mr Thapa’s spine a consequence of an injury suffered by Mr Thapa in the course of his employment in about September 2015?
b) do the pain and suffering consequences of any such impairment meet the requirements of the definition of serious injury in s325 of the WIRCA?
c) do the loss of earning capacity consequences of any such impairment meet the requirements of the definition of serious injury in s325 of the WIRCA?
10 The second application is against the Transport Accident Commission (“TAC”). Mr Thapa claims to have suffered a serious long-term impairment of his spine within the meaning of paragraph (a) of the definition of serious injury in s93(17) of the Transport Accident Act 1986 (Vic) (“TAA”). This application raises the following issues:
a) to what extent is any current impairment of Mr Thapa’s spine a consequence of an injury suffered in the motor vehicle accident on 1 May 2017?
b) does any such impairment amount to a serious long-term impairment of the spine within the meaning of the definition of serious injury in s93(17) of the TAA?
11 In these reasons, I have found it most convenient to address the final of the above five issues first, before going on to consider the remaining issues.
Does any spinal impairment suffered by Mr Thapa amount to a serious long-term impairment of the spine within the meaning of the TAA?
12 Counsel for the TAC and the employer were in agreement that Mr Thapa was a straight-forward and believable historian, although he perhaps veered a little into advocacy for his own cause under re-examination. I agree. Mr Thapa’s evidence is also corroborated by the evidence of his wife. In this context, I make the following factual findings.
13 Lower back pain is Mr Thapa’s predominant current issue. Mr Thapa says that he suffers from a constant dull ache in his lower back. This pain is there “all the time”. When sitting he needs to stand and move at least every hour or he becomes very stiff and the pain more intense. I observed that under cross-examination he requested permission to stand after almost exactly one hour of sitting and appeared distracted and in some discomfort in the following minutes. He suffers episodes of this more intense pain on a daily basis when more active, for example when working.
14 Bending and squatting and getting up and down from the floor are also painful for him.
15 He suffers flare-ups of pain if he attempts to lift heavy objects, stand or walk for long periods. He is constantly aware of the risk of exacerbating his pain and the need to be careful not to push himself lest he suffer a flare-up. He suffers a few flare-ups of severe back pain each month.
16 He also suffers some pain in his neck and left shoulder from time to time, but back pain is his biggest problem. I accept that any neck pain he suffers is a consequence of the impairment of his spine and ought to be taken into account. However, it is the lower back pain which is the predominant cause of his current issues. Any shoulder pain is not a consequence of the impairment of his spine.
17 He is still able to drive, garden (including weeding and mowing), cook, walk, jog, do house-work and care for his daughter. However, his lower back pain (and the fear of triggering of flare-up) places restrictions on his capacity to perform these activities and his enjoyment of them, particularly where heavy lifting or bending is involved.
18 He has difficulty bending down to pray and worship.
19 He is unable to be as physically active as he was prior to 2015. He goes to the gym, but more for rehabilitation exercises than for the weight-lifting he did prior to 2015.
20 He wakes up from his sleep every few hours experiencing back stiffness, although at times he has also woken up from sleep due to his shoulder pain.
21 He is not able to work as a picker and packer or in any other job that involves manual labour or heavy lifting.
22 He had a long-term wish to work for the Australian Defence Force, but, due to the issues with his back, would now be unlikely to be successful in any application to work for the defence force.
23 With hourly breaks to stretch and move his back, he is able to:
a) work several hours per day as a courier or delivery driver (up to 20-25 hours per week);
b) work 25 hours per week as a telemarketer for Capital Print Solutions; and
c) work 40 hours per week as a project coordinator with Raeco Pty Ltd (“Raeco”).
24 The pain that Mr Thapa experiences, together with his anxiety about the prospect of flare-ups and his prospects of providing for his family, makes him anxious and irritable. In the past it has strained his relationship with his wife, although that has now improved. It impinges on his capacity to play freely with his daughter. He fears that his daughter sees him as always grumpy and does not understand why he cannot join in her in activities such as cycling and jumping on the trampoline.
25 In the past, he presented with severe symptoms of depression, however as at 15 September 2018 his treating psychologist expressed the view that he “will most likely continue to do well presuming he has no physical setback and presuming he is able to provide for his family”. Dr Nigel Strauss, the medico-legal psychiatrist called by Mr Thapa, diagnosed him in June 2018 with a chronic adjustment disorder with mixed anxiety and depressed mood and evidence of traumatisation. However, his most recent report indicated that Mr Thapa’s condition had improved from a psychiatric perspective and he had only mild symptoms of anxiety and depression and evidence of traumatisation attributable to the car accident.
26 He does not currently take any medication for back or neck pain.
27 He has not been referred to an orthopaedic surgeon or neurosurgeon for his back pain. Spinal surgery has not been recommended.
28 In the past he has received regular physiotherapy. He now occasionally receives treatment from his physiotherapist, including one occasion in June 2020 specifically for lower back pain, however he does not currently receive other professional treatment for his back pain. He regularly performs exercises and stretches recommended by his physiotherapist and finds that these help with his pain.
29 Overall, Mr Thapa suffers constant pain which fluctuates from a dull ache to more severe pain. He can no longer work in his pre-injury career as a picker and packer. He has also lost the chance of pursuing a career in the Australian Defence Force. I am conscious that Mr Thapa is relatively young. I am also conscious that Mr Thapa is clearly stoic, motivated and hardworking and should not be penalised for that.
30 On the other hand, Mr Thapa is tertiary educated and impressed me as articulate and intelligent. He has alternative careers open to him which may actually be more suited to his skill-set than employment as a picker and packer. These include positions such as mechanical engineering technician, computer aided design drafter and call-centre information clerk.[1]
[1]Report of Katrine Green dated 10 July 2020, PCB112; see also report of Mr Rodney Simm dated 10 July 2020, MDCB68.
31 He is presently employed as a project co-ordinator with Raeco. Although he was on probation when he was stood down due to the COVID-19 pandemic, there is no reason to believe that this position will not be ongoing once the company’s operations resume. Whilst this position pays less than his previous employment as a picker and packer, I am not satisfied on the (limited) evidence before me that he will suffer significant long-term pecuniary disadvantage from being required to move into a more white-collar/clerical field of employment. In this regard, I note that the vocational assessment report of Katrine Green described a position as a mechanical engineering technician as a good “introductory job” for Mr Thapa.
32 Whilst his pain restricts his daily activities, he is still able to engage in activities such as gardening and housework and driving and caring for his young daughter.
33 He is able to achieve all of the above without surgery, medication or significant ongoing treatment.
34 I acknowledge that Mr Thapa’s lower back pain, in particular, is significant and distressing to him. However, having considered all of the above matters, I am not satisfied that, judged in comparison to other cases in the range of possible impairments or losses, his current spinal impairment passes the required threshold of being very considerable and more than significant or marked.[2]
[2]Humphries v Poljak [1992] 2 VR 129 at 140.
35 It follows that Mr Thapa has not suffered a serious injury by reason of the car accident.
36 Having made this finding on the basis of a consideration of Mr Thapa’s current spinal impairment, it is not necessary for me to determine the extent to which Mr Thapa’s current impairment is in fact a result of the car accident. However, in deference to counsels’ detailed and helpful submissions on this point I will now go on to do so.
37 As the factual findings necessary to determine this issue are intermingled with the factual findings necessary to determine whether Mr Thapa’s current impairment is a consequence of an injury suffered by Mr Thapa in the course of his employment in about September 2015, I will consider these two issues together.
To what extent is the current impairment of Mr Thapa’s spine:
a consequence of an injury suffered in the motor vehicle accident on 1 May 2017; anda)
a consequence of an injury suffered in the course of Mr Thapa’s employment in about September 2015.b)
38 Senior counsel for the TAC submitted that there were three distinct incidents leading up to Mr Thapa’s current spinal impairment. The first was the incident on 10 September 2015 when Mr Thapa suffered back pain at work whilst lifting boxes in the freezer; the second was the car accident on 1 May 2017; and the third was the incident at work on 5 December 2017 when Mr Thapa again suffered back pain when he was asked to return to picking and packing.
39 He submitted that any ongoing symptoms in Mr Thapa’s lower back reflected degenerative lumbar disease which pre-existed the car accident and was exacerbated or aggravated on 5 December 2017. He relied upon the opinion of Dr Speck that any soft tissue injury suffered as a result of the car accident had resolved. He submitted that to the extent that the other medical experts expressed a different view, they had failed to take account of the impact of the incident at work on 5 December 2017.
40 Counsel for the employer accepted that Mr Thapa suffered an incident at work on 10 September 2015, but submitted that this incident exacerbated (not aggravated) pre-existing L4-L5 disc degeneration. He submitted that this exacerbation had completely settled by the time of the car accident.
41 Senior counsel for Mr Thapa submitted that I should find that Mr Thapa had suffered a disc prolapse in the course of his employment in about September 2015. He submitted that this disc prolapse had caused Mr Thapa to have a weakened spine which was predisposed to injury. This weakened spine was aggravated by the car accident in May 2017. Relying upon the approach of Buchanan JA in R J Gilbertsons Pty Ltd v Skorsis [2002] 12 VR 386, he submitted that Mr Thapa’s current spinal impairment could be considered a consequence of both injuries. He submitted that the worsening of pain suffered by Mr Thapa on his return to picking and packing on 5 December 2017 was as a result of the injury being “unmasked”.
42 I make the following findings.
43 I accept the opinion of Professor Bittar, the Consultant Neurosurgeon called by Mr Thapa, that Mr Thapa suffered an L4-L5 intervertebral disc prolapse related to heavy and repetitive activities during the course of his employment in about September 2015. I prefer this opinion to the opinion of Mr Simm, the orthopaedic surgeon called by the employer, that the demands of his work amounted to no more than an exacerbation of pain from pre-existing pathology. I make this finding in a context where definitive proof is impossible because of the lack of radiology prior to September 2015. However, I accept Mr Thapa’s evidence that he did not suffer any lower back pain prior to September 2015, despite regular weight-lifting in the gym and working as a picker and packer for a number of years. I also accept his evidence that his back pain was ongoing from 10 September 2015 until 24 February 2016, when he received an epidural injection which gave him significant pain relief. In this context, Professor Bittar’s opinion is the more likely to be correct.
44 I also accept the opinion of Professor Bittar that by the time of the transport accident on 1 May 2017, he had made a full recovery from this injury. I am fortified in this view by Mr Thapa’s return to usual work duties in about June 2016 and his lack of reports of any significant back pain until the car accident in May 2017. Mr Thapa did move back to light duties in February 2017 and remained on light duties until the accident, but this was due to left shoulder pain rather than back pain. Mr Thapa’s evidence was that he did not require any treatment or pain medication for back pain during this period and that “it was no longer causing me problems”.
45 I am not satisfied that as a result of the disc prolapse in about September 2015, Mr Thapa had a weakened spine which predisposed him to further injury.
46 As I have already noted, Professor Bittar, the consultant neurosurgeon called by Mr Thapa, expressed the opinion that Mr Thapa had made a full recovery from the L4-L5 intervertebral disc prolapse he suffered in about September 2015. In his view, the car accident caused aggravation of cervical spondylosis and lumbar spondylosis. He expressed the view Mr Thapa’s previous workplace activities contributed less than 10% to Mr Thapa’s current neck and lower back symptoms.[3]
[3]This does not conflict with his earlier opinion that the L4-L5 intervertebral disc prolapse suffered in about September 2015 had resolved, as he is here considering the entire duration of Mr Thapa’s workplace activities and both the neck and lower back symptoms.
47 Mr Simm, the orthopaedic surgeon called by the employer, expressed the view that Mr Thapa had quiescent pre-existing constitutional disc degeneration, which predisposed him to future pain. I have rejected his opinion insofar as it was inconsistent with the opinion of Professor Bittar that Mr Thapa suffered an L4-L5 intervertebral disc prolapse in about September 2015. Senior counsel for Mr Thapa submitted that I could nevertheless rely upon Mr Simm’s opinion to find that the workplace injury Mr Thapa suffered in about September 2015 had caused a predisposition to future pain. I do not accept this submission. Mr Simm’s evidence in relation to Mr Thapa’s predisposition to pain was specifically in relation to the “constitutional” disc degeneration to which he referred. I am not prepared to infer that Mr Simm’s opinion can be extended to the L4-L5 intervertebral disc prolapse that I have found occurred in about September 2015.
48 I also prefer the opinion of Professor Bittar to the opinion of Associate Professor Love, who was an orthopaedic surgeon retained by Mr Thapa and the TAC to produce a report on 23 October 2018. Particularly given Professor Bittar had the opportunity to:
a) assess Mr Thapa more recently; and
b) consider an MRI of the cervical and lumbar spine performed on 14 January 2020.
49 Mr Thapa’s then treating physiotherapist, Rany Louka refers to the “possibility” of future flare ups. However, he also supported Mr Thapa’s return to full duties.
50 I do not find the report of Dr James Rowe, the orthopaedic surgeon called by the plaintiff, particularly helpful on this issue as it does not clearly distinguish between neck, left shoulder and lower back and between workplace injury and transport accident injury.
51 Given I am not satisfied that the workplace injury suffered in September 2015 weakened Mr Thapa’s spine and predisposed him to his future injury, the decision of R J Gilbertsons Pty Ltd v Skorsis can be distinguished. In that case Buchanan JA held that there was clear medical evidence that the earlier injury “entailed major, long-term incapacity unless the applicant abstained from heavy labour or indeed any physical activity which required him to lift his arms to more than a minor extent”.[4]
[4]R J Gilbertsons Pty Ltd v Skorsis [2002] 12 VR 386 at [21].
52 I am also not satisfied that Mr Thapa is precluded from working as a picker and packer by reason of his September 2015 injury. I rely upon my acceptance of the opinion of Professor Bittar that Mr Thapa has made a full recovery from this injury. I also rely upon the fact that Mr Thapa made a return to his usual work duties in about June 2016 and it was shoulder pain, rather than back pain, which saw him return to lighter duties some seven months later, in February 2017.
53 In summary, whilst I am satisfied that Mr Thapa suffered an injury as a consequence of his employment in about September 2015, I am not satisfied that the spinal impairment currently suffered by Mr Thapa is a consequence of that injury.
54 Turning to the car accident in May 2017, I accept that Mr Thapa suffered soft tissue injuries to his neck and lower back in that accident. This is supported by the ambulance and hospital records as well as the report of treating physiotherapist Rani Marina and the reports of Professor Bittar.
55 I do not accept the evidence of Mr Speck, the orthopaedic surgeon called by the TAC, that Mr Thapa has made a full recovery from the soft tissue injury to his lower back.
56 None of the other medico-legal experts express this opinion. Mr Thapa reported lower back pain within a few days of the car accident. Whilst the shoulder and neck problems may have initially been more predominant (and required more treatment) I do not accept that Mr Thapa’s lower back pain had completely resolved by the time of his return to work in August 2017. I accept that Mr Thapa’s back pain worsened upon his return to work in August 2017 and significantly worsened on about 5 December 2017. Prior to the car accident he had been able to return to full duties at work with minimal back pain and it was shoulder pain rather than back pain which lead him to return to lighter duties.
57 I do not accept that Professor Bittar failed to take into account the impact of the incident at work on 5 December 2017. He expressly records in his reports that as Mr Thapa’s lifting increased at work his symptoms of lower back pain deteriorated. For the reasons already given, I prefer the opinions of Professor Bittar to those of Mr Speck.
58 In this context, it seems to me more probable than not that the injury to Mr Thapa’s lower back suffered in the car accident had not resolved and that the significant worsening of his back pain in December 2017 was an exacerbation, or at most an aggravation, of that injury. In the circumstances, I am prepared to assume (as I have effectively already done in the previous section of my reasons) that the whole of Mr Thapa’s current lower back pain can be viewed as a consequence of the car accident.
59 However, I am not satisfied specifically that Mr Thapa’s inability to work as a picker and packer is a consequence of the injury that Mr Thapa suffered in the car accident. Mr Thapa had suffered from repeated incidents of shoulder pain during the course of his employment as a picker and packer. The first such incident was on 14 May 2014, when he experienced pain in his left shoulder and neck when moving boxes of frozen products at work. He had another incident on 1 September 2014 and another on 2 February 2017. As at 28 April 2020, shortly prior to the accident, he remained on lighter duties as a result of this shoulder pain.[5] When he returned to work in August 2017, after the car accident, he remained on light duties at least partly due to shoulder pain.[6] Whilst the shoulder pain seems now largely resolved, it is telling that this has occurred in conjunction with Mr Thapa ceasing work as a picker and packer. I am not satisfied that Mr Thapa would ever have been able to successfully return to full duties as a picker and packer in light of his ongoing issues with shoulder pain.
[5]See Certificate of Capacity dated 28 April 2017, which records that he is to try pre-injury duties but with different modified duties on rotation.
[6]T51:12-31.
60 In my consideration of the question of whether Mr Thapa had suffered a serious injury above, I had regard to the fact that Mr Thapa could no longer work as a picker and packer. My view that Mr Thapa has not suffered a serious injury as a result of the car accident is fortified when this is removed from consideration.
Does the pain and suffering consequences of Mr Thapa’s spinal impairment meet the requirements of the definition of serious injury in s325 of the WIRCA?
61 It is not necessary for me to decide this issue as I have concluded that Mr Thapa’s current spinal impairment is not a consequence of the workplace injury he suffered in about September 2015. However, for completeness, in light of my findings in relation to serious injury in the context of the TAA, I am not satisfied that the pain and suffering consequences Mr Thapa suffers as a result of his current spinal impairment would satisfy the definition of serious injury in s325 of the WIRCA.
Do the loss of earning consequences of Mr Thapa’s spinal impairment meet the requirements of the definition of serious injury in s325 of the WIRCA?
62 Again, it is not necessary for me to decide this issue, as I have concluded that Mr Thapa’s inability to work as a picker and packer is not a consequence of the workplace injury suffered in about September 2015. However, for completeness, I will briefly state my conclusions on this issue.
63 I am prepared to accept the calculations provided by counsel for Mr Thapa, which were based on the only evidence before me as to Mr Thapa’s without injury income earning capacity. On the basis of these calculations, Mr Thapa has suffered a current loss of earnings of marginally higher than 40% when compared to what he might have earned had his employment as a picker and packer continued. However, Mr Thapa also bears the onus of satisfying the Court that he will continue permanently to have a loss of earning capacity of 40% or more. That Mr Thapa has suffered an initial drop in income as a result of his change in occupation from a level 3 picker and packer to entry level white collar/clerical work is not surprising. However, I am not prepared to infer that this reduction is permanent.
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Certificate
I certify that these 14 pages are a true copy of the reasons for decision of her Honour Judge Tran, delivered on 1 December 2020.
Dated: 1 December 2020
Susan Thomas
Associate to her Honour Judge Tran
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