Trifkovic v Apollo General Engineering (Aust) Pty Ltd
[2015] VCC 206
•6 March 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-12-01094
| SEKULA TRIFKOVIC | Plaintiff |
| v | |
| APOLLO GENERAL ENGINEERING (AUST) PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 February 2015 | |
DATE OF JUDGMENT: | 6 March 2015 | |
CASE MAY BE CITED AS: | Trifkovic v Apollo General Engineering (Aust) Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 206 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Industrial accident – injury to lower back – no complaint of symptoms of injury to the lower back for a significant period of time – causation
Legislation Cited: Accident Compensation Act 1985, s134AB
Judgment: The plaintiff’s Originating Motion is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Pierorazio | Arnold Thomas & Becker Pty Ltd |
| For the Defendant | Mr N Dunstan | IDP Lawyers |
HIS HONOUR:
Introduction
1 By an Originating Motion filed 9 March 2012, the plaintiff seeks the leave of the Court, pursuant to s134AB of the Accident Compensation Act 1985 (“the Act”), to bring a proceeding to recover damages for injuries which occurred in the course of his employment with the defendant on 21 November 2009.
2 The plaintiff claims that he has suffered a serious permanent impairment or loss the function of his lower back.
3 Mr G Pierorazio of counsel appeared for the plaintiff. Mr N Dunstan of counsel appeared for the defendant.
4 The following evidence was adduced at the trial of the proceeding:
· The plaintiff gave evidence and was cross-examined;
· The plaintiff tendered his Court Book (“PCB”) pages 1-12 and 24-60c: Exhibit A;
· The defendant tendered its Court Book (“DCB”) pages 1-3, 6-13 and 26‑44: Exhibit 1.
The issues
5 The only issue raised by this proceeding is whether the plaintiff suffered an injury to his lower back in the course of his employment with the defendant on 21 November 2009.
6 The defendant submitted that the plaintiff made no complaint of an injury to his lower back for a significant period of time following the incident; accordingly, it was highly unlikely that when he did complain of pain in his lower back, that it had any causal relationship with the incident which occurred on 21 November 2009.
7 The plaintiff submitted that I should accept his evidence that he did make a complaint, despite the absence of any record of such a complaint to his then treating general practitioner.
The Plaintiff’s injuries
8 The plaintiff arrived in Australia on 9 August 2000 and commenced working with the defendant on 18 August 2000 as a factory labourer.
9 In about August 2009, the plaintiff became aware of pain across his stomach when he was using a 1-metre long wrench. The pain he experienced caused him to fall to the ground.
10 On 21 November 2009, the plaintiff was engaged in particularly heavy work with another worker. They were both standing on a cherry picker about 5 metres above floor level. They were pulling on an object described as a “sail” when the plaintiff said that he:
“… felt a sharp pain in the left side of my abdomen which spread into my left hip and back.”[1]
[1]PCB 3
11 The plaintiff then became aware of a bulge in his left groin. When he pushed it back in, he obtained relief from the discomfort that it caused.[2]
[2]PCB 3
12 A major part of the cross-examination of the plaintiff was based upon the clinical notes of Dr Caric, general practitioner.[3] He was the first medical practitioner the plaintiff saw.
[3]DCB 30-33
13 The plaintiff first saw Dr Caric on 26 November 2009.[4] The history recorded by Dr Caric was:
“… last three months left inguinal pain.”
[4]DCB 33
14 Dr Caric conducted an examination which demonstrated a left inguinal area lump. It would appear that his provisional diagnosis was that the plaintiff had an inguinal hernia. He referred him to have an ultrasound of his abdominal wall.[5]
[5]DCB 33
15 The plaintiff next saw Dr Caric on 30 November 2009. His clinical note is brief and cryptic, but it would appear that he diagnosed that the plaintiff had suffered an indirect inguinal hernia. He organised for the plaintiff to be referred to a surgeon.[6]
[6]DCB 33
16 The plaintiff next saw Dr Caric on 21 December 2009 after he had seen a surgeon who advised the plaintiff to undergo a surgical repair of the inguinal hernia. On this occasion, Dr Caric took a more elaborate history of how the plaintiff came to be injured:
“[W]orking on lifting heavy load on the ‘cherry picker’ on 21/11/2009 at approx. 10-11 a.m.
[F]elt sudden pain in the left side of the lower abdomen and pain as well like burning, seen lump for the first time, but he had pain even before 3/12 since it work he tried to unscrew the nut from the bolt and he had felt such pain for the first time.”
(sic).
17 The plaintiff subsequently saw Dr Caric on 16 March 2010, 27 April 2010, 29 April 2010, 10 May 2010, 11 May 2010, 19 May 2010, 7 June 2010 and 15 June 2010.[7] On each of those occasions, the plaintiff saw Dr Caric for treatment or review for an inguinal hernia.
[7]DCB 31-32
18 The plaintiff was referred to Mr Fleming, endocrine and general surgeon, by Dr Caric. In a letter written by him to the defendant, he set out the history of the condition for which he was treating the plaintiff and its cause:
“ I saw Sekula in my rooms in Werribee last week. He told me during his visit that he had developed a sudden onset of left inguinal hernia after lifting something heavy at his workplace. At that time, he was helping other people around him moving heavy items.
He developed immediate pain in the left groin a lump appeared, certainly consistent with a story of acute onset of left inguinal hernia.
On examination he has a moderate size, reducible inguinal hernia and I think you will certainly need repair of this hernia.”[8]
[8]DCB 26
19 Mr Fleming undertook the reduction of the inguinal hernia on 12 May 2010. The plaintiff subsequently saw Dr Caric on 19 May 2010 to have the dressing removed.[9]
[9]DCB 32
20 The first occasion that Dr Caric’s clinical notes reveal any complaint of lower back pain was on 5 July 2010. His clinical note reveals the following:
“left sided inguinal pain, left sided back pain, not experienced before
taxis ofn the inguinal canal negative, rising stretch leg sigm bil. Neg, bending and twisting no abnormalities found.
for urine test and CT lumbar oh sacral spine.”
(sic).
21 The plaintiff ceased seeing Dr Caric in July 2010. The plaintiff said that the reason why that occurred was because he was unhappy with Dr Caric –
“… as I had these ongoing pain[s] which were not going away”.[10]
[10]PCB 4
22 However, Dr Caric gave an entirely different account about why his relationship with the plaintiff came to an end. In his clinical note of 6 July 2010 he recorded the following:
“[S]tates he has got the pain in the right inguinal region radiating to the left side of the back states he uses Panadeine forte given by Surgeon in the hospital as well as per the patient medication for infection.
[H]e thinks that the back pain he has got is from his heavy work at the workplace, not yet CT lumbar oh sacral spine …
[T]he patient is insisting that all pain he has got is from the work, stating he had mentioned to me before, advise him of the previous notes that he did not complain of the back pain until yesterday and it is understandable that he is not happy with Centrelink payments but I can not just open WorkCover since his company is on sale, advised he put pressure on me as his doctor but he needs further medical investigations, not happy to be his doctor since he is insisting on WorkCover, insisted just to talk about the results of urine and CT lumbar oh sacral spine
[A]dvised him - not happy to be his doctor since I feel pressure from the patient and he mentioned he would like to have compensation from the company … .”[11]
(sic).
[11]PCB 30-31
23 The last occasion that the plaintiff saw Dr Caric was on 9 July 2010. He recorded the following:
“Annular disc bulge at L1/2/3/4/5/S1…
...
CT lumbosacral spine, advised of degenerative changes in the lower back, but no neural compromise found, advised for Glucosamine 1.5 g/day to by over the counter and to take for 3/12, if no pain in the back, then continue otherwise to stop
[S]ince the last appointment made a lot of frustration to me and him since looking for the work compensation, advised to change the doctor!!!!
Facet Joint Arthropathy at L3/4/5:”[12]
(sic).
[12]DCB 30
24 The plaintiff saw Mr Fleming on 13 July 2010. The question of the causation of the plaintiff’s lower back was raised by the plaintiff with Mr Fleming. In a letter to Dr Caric, he said:
“ I saw Sekula in the Werribee rooms today. He, as you know had a left inguinal hernia repair done about six weeks ago and he has been doing okay but he is still a bit sore and I understand now has a back problem which he has seen you about.
I have given him a WorkCover certificate to last until the end of the month from the hernia point of view with modified duties only but after that I will leave him in your care as I have not made him a further appointment to see me. You may like to pursue the issue of his back problems by a specialist referral.”[13]
[13]DCB 27
25 Under cross-examination, it was put to the plaintiff that the clinical notes of Dr Caric and the letters of Mr Fleming suggest that he did not suffer an injury to his lower back on 21 November 2009, and that what back pain he came to suffer did not arise until about July 2010.
26 The plaintiff was adamant that he told Dr Caric that he had suffered pain in his lower back. In answer to one question during cross-examination, he said that he told Dr Caric of the pain in his lower back every time he saw him.[14]
[14]Transcript 22
27 The plaintiff was referred to a number of documents which are also said to demonstrate that the plaintiff did not suffer any pain to his lower back as a result of the incident. In summary, the plaintiff was taken to:
· the WorkCover Worker’s Claim Form signed by the plaintiff on 16 December 2009 on which he described the injury as “hernia” which resulted from “strain from lifting”;[15]
[15]DCB 1-3
· a Certificate of Capacity signed by Dr Caric and dated 21 December 2009 on which he described the injury as “left inguinal hernia”;[16]
[16]DCB 34-35
· a Certificate of Capacity signed by Dr Caric and dated 10 May 2010 on which he described the injury as “left inguinal hernia”;[17]
· a Certificate of Capacity signed by Dr Caric on 7 June 2010 on which he described the injury as “left inguinal hernia repair”.[18]
[17]DCB 37-39
[18]DCB 40-42
28 The plaintiff later submitted a further Worker’s Injury Claim Form signed on 5 September 2010, on which he described the injuries as a left inguinal hernia, and back pain.[19]
[19]DCB 4-5
The lower back injury
29 The plaintiff has been examined by a number of medical practitioners who were given a history by the plaintiff that the onset of lower back pain was immediate and not delayed.
30 The plaintiff saw Dr Adrianakis, general practitioner, after he ceased seeing Dr Caric. He first saw Dr Adrianakis on 15 July 2010. He recorded the following:
“ On the 21/11/2009 while lifting heavy sling weighing 15 tonnes the crane was not working and hooks and a chain in the lift needed to be lifted 7 meters up.
During this he felt sudden and severe pain in his lower back.
Mr Trifkovic also suffered a left inguinal hernia as a result of the heavy lifting.”[20]
[20]PCB 60a
31 Dr Adrianakis referred the plaintiff to Mr Barrett, orthopaedic surgeon. The plaintiff first saw him in late July 2010. He recorded the following:
“… and on the 21/11/2009 while at work and lifting heavy hooks and a chain sling, preparatory to lift[ing] some machinery by an overhead crane, he experienced a sudden attack of lower back pain and at the same time a painful bulge in his left groin … .”[21]
[21]PCB 24
32 The plaintiff was examined by Mr Flanc, vascular and general surgeon, on 15 April 2011. He recorded the following:
“… He and his partner sharply pulled the load backwards while rotating to the right at which stage he felt a sudden pain in the left groin radiating up to the left side of the lower back and up as far as his shoulder blade.”[22]
[22]PCB 32
33 The plaintiff was examined by Mr Hunt, orthopaedic surgeon, on 11 April 2011. He recorded the following:
“… At his workplace he was lifting heavy Hook and Chain Slings in preparation to lift some heavy machinery with an overhead crane when he noted a sudden onset of severe pain in his lower back and a painful lump in the left groin region.”[23]
[23]PCB 39
34 The plaintiff was examined by Mr O’Brien, orthopaedic surgeon, on 19 February 2014. He recorded the following:
“… He was doing some maintenance work on very large crane, and during the course of this, he apparently had to lift or hold a very heavy metal sail. The patient stated that immediately this precipitated significant pain in the lower back and in addition, pain in the left groin … .”[24]
[24]PCB 45
35 The plaintiff was examined by Dr Sutcliffe, occupational physician, on 12 March 2014. She recorded the following:
“Mr Trifkovic informed me that he was helping to lift a heavy load with the crane on 21 November 2009.
He informed me he was pulling to control a load and balance it and he had onset of low back pain of severe intensity.”[25]
[25]PCB 52
36 The defendant had the plaintiff examined by Mr Jones, orthopaedic surgeon, on 24 March 2011. He recorded the following:
“… With the assistance of two other workers Mr Trifkovic was attempting to check the function of the crane and was in particular pulling heavily on a cable with two other workers. At the end of a cable there was a fork or sling attached. The patient reported experiencing the acute onset of pain in his left groin as well as a presence of a lump following this pulling episode while on the standing position. He also reported some pain in his lower back and shoulder (unspecified).”[26]
[26]DCB 6
Did the Plaintiff make a complaint?
37 I do not accept the plaintiff’s evidence that he complained of pain in his lower back on each occasion that he saw Dr Caric from 26 November 2009.
38 To accept that the plaintiff made complaints on each of those occasions, and to accept that Dr Caric ignored those complaints, appears to me to be inconsistent with Dr Caric’s approach to understanding what injuries the plaintiff suffered on 21 November 2010, and the treatment which the plaintiff needed.
39 What is clear is that Dr Caric had no difficulty understanding that in the three months preceding the first occasion he saw the plaintiff on 26 November 2009, that the plaintiff had suffered a left inguinal pain. He set about investigating whether the plaintiff had suffered an inguinal hernia by referring him to have an ultrasound, and then to a surgeon. Those steps suggest that Dr Caric not only listened to the plaintiff and recorded his complaints, but he took steps to investigate the inguinal hernia and have it treated. There does not appear to be any delay on his part in the taking of those steps.
40 What makes the plaintiff’s evidence even more unlikely is that on the occasion he saw Dr Caric on 6 July 2010, Dr Caric recorded the plaintiff’s complaints of lower back pain. Not only did he record that complaint, but also a series of issues which the plaintiff confronted him with relevant to the plaintiff’s receipt of Centrelink and WorkCover payments. It demonstrates the Dr Caric did listen to the plaintiff when the plaintiff raised matters concerning his health.
41 The clinical note of 6 July 2010 is poorly drafted; however, what appears to have happened is that the plaintiff was only eligible for Centrelink payments, which he considered to be inadequate. He wanted Dr Caric to accept that his complaints of lower back pain resulted from an injury to his lower back on 21 November 2009 so that he could successfully apply for WorkCover payments. Under cross-examination, it was put to him that he had a disagreement with Dr Caric regarding making a WorkCover claim. Almost all of the answers given by the plaintiff during that part of his cross-examination were non-responsive. The best I can make of his answers is that he did not necessarily agree that he had a disagreement with Dr Caric regarding making a WorkCover claim. He repeated on a number of occasions that Dr Caric told him that he could no longer be his medical practitioner, and that he should see another medical practitioner.[27]
[27]Transcript 31-39
42 To make a finding that the plaintiff did make complaints on each occasion he saw Dr Caric must inevitably be accompanied by a finding that Dr Caric simply did not listen to the plaintiff, or perhaps worse, that he is incompetent. Mr Pierorazio chose not to characterise that alleged conduct on the part of Dr Caric in any particular way. He simply submitted that I should prefer the plaintiff’s evidence.
43 As it stands, Dr Caric’s clinical notes were tendered without objection. No direct challenge was made regarding the accuracy and persuasiveness of the clinical notes, and therefore, I see no reason why I should not accept the clinical notes at face value. If it is the plaintiff’s case that Dr Caric did not listen to him or was incompetent, then those allegations should have been put to Dr Caric. It was open to the plaintiff to put those allegations in correspondence to Dr Caric or to call him and to apply for my leave to cross-examine him pursuant to s38 of the Evidence Act 2008, which permits the cross-examination of an unfavourable witness.
44 I am fortified in reaching the conclusion that the plaintiff did not make a complaint of lower back pain to Dr Caric because the other relevant documents which I have referred to in paragraph 25 above do not contain any reference at all to the plaintiff’s lower back. They are documents which created the foundation for any claim the plaintiff had to WorkCover payments. It is difficult for me to accept that when those documents were completed, that he did not give consideration to the injuries which he could legitimately claim as being caused by what occurred on 21 November 2009.
The effect of not having made a complaint
45 Each of the medical practitioners whose histories I have summarised in paragraphs 27 to 34 inclusive, accepted that the plaintiff suffered the injury to his lower back as a result of what occurred on 21 November 2009 based upon the history they were given by the plaintiff.
46 None of them were given the benefit of all of the clinical notes of Dr Caric. None were asked the relevant question: If they accepted that the plaintiff did not make any complaints of lower back pain until 6 July 2010, would they still accept that the complaint of lower back pain is consistent with the plaintiff having suffered an injury to his lower back as a result of what occurred on 21 November 2009.
47 Mr Pierorazio submitted that two examining medical practitioners were given the clinical notes of Dr Caric, and therefore, it is not correct for the defendant to submit that the question I have just posed was not answered.
48 One of those medical practitioners was Dr Sutcliffe. She set out the documentation she was provided. She was provided with the clinical notes of Dr Caric, however, nowhere in the body of her report did she refer to the content of those clinical notes, nor whether she was provided with the all of the clinical notes.[28] She was asked a specific question regarding causation:
“Whether our client’s condition was and continues to be caused or contributed to by his employment with Apollo General Engineering.”
[28]PCB 51
49 Dr Sutcliffe gave the following answer to that question:
“Yes, I believe the condition is related to the duties he performed in that employment and continues to be caused or contributed to by his employment with Apollo General Engineering.”[29]
[29]PCB 58
50 If Dr Sutcliffe was provided with all of the clinical notes, and if she had read them, then it is strange that she did not pay particular attention to the clinical note of 6 July 2010 in which Dr Caric recorded that the plaintiff had not previously complained of lower back pain. Furthermore, the solicitor for the plaintiff did not direct Dr Sutcliffe’s attention to that clinical note, nor did they specifically ask the critically important question referred to in paragraph 45.
51 Mr Jones was also provided with documentation, and amongst it was:
“Extract of the clinical record of Dr V Caric as at 20.09.10.”[30]
[30]DCB 9
52 It is not clear to me what Mr Jones was actually provided. To refer to what he was provided as an “extract” suggests that he was not given all of the clinical notes. Neither the plaintiff nor the defendant sought to inform me what Mr Jones was actually provided, and whether it included the clinical note of 6 July 2010. It appears to me that he was probably not provided with that clinical note because when he specifically dealt with the question of causation and the extract of the clinical notes, he said:
“The incident as described to me had the capacity to aggravate what would appear to me pre-existing degenerative disc and joint disease affecting the lumbar spine. I note there are some inconsistencies in the mechanism of injuries as described to Mr Barrett. It would appear as though this patient made no complaint of any back problems when he initially consulted his general practitioner within a few days of the injury.”[31]
[31]DCB 11
53 The fact that Mr Jones only referred to there being no complaint when the plaintiff initially consulted Dr Caric suggests that the extract of the clinical record he was provided was very limited and did not include all of the clinical notes.
The Plaintiff’s onus
54 The plaintiff bears the onus to establish that the incident materially contributed to the onset of the injury to his lower back. The plaintiff has failed to discharge that onus.
55 The plaintiff was content to proceed with his application in the face of Dr Caric’s clinical notes and the potential that if the content of those clinical notes was preferred over his evidence, that his application would fail.
56 No effort was made to put the clinical notes to any of the medical practitioners engaged by the plaintiff for the purpose of having them answer the question referred to in paragraph 45 above. Indeed, there is really no evidence on the question of causation based upon the clinical notes.
57 Therefore, what I am left with is Dr Caric’s clinical notes, the reports of Mr Fleming and the documents referred to in paragraph 25 above, all of which demonstrate that, from the outset, the injury suffered by the plaintiff was limited to an inguinal hernia. I am satisfied that the plaintiff did not suffer an injury to his lower back as a result of what occurred on 21 November 2009. Therefore, the plaintiff’s application must fail.
Conclusion
58 For the reasons set out above, I order that the plaintiff’s Originating Motion be dismissed with costs.
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