VLADO KLEPAC and VICTORIAN WORKCOVER AUTHORITY & BARRO GROUP PTY. LTD. & DECCO (BARRO GROUP PTY. LTD.)

[2007] VMC 12

IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE

WORKCOVER DIVISION

No. U01878979

B E T W E E N

VLADO KLEPAC

Plaintiff

- and –

VICTORIAN WORKCOVER AUTHORITY & BARRO GROUP PTY. LTD. & DECCO (BARRO GROUP PTY. LTD.)

Defendants

MAGISTRATE:   B.R. Wright


WHERE HEARD:   Melbourne


DATE OF DECISION:   17 April 2007

MEDIUM NEUTRAL CITATION:               [2007] VMC012

APPEARANCES

Mr. C. Miles (instructed by Holding Redlich) for the Plaintiff

Ms. B. Knoester (instructed by Dibbs Abbott Stillman) for the Defendants

REASONS FOR DECISION

Accident compensation – Table of maims – Injuries throughout and in period September 1985 and November 1997 – Further injuries prior to and after that period – Attribution of impairment – Accident Compensation Act 1985 S.98, 98a

HIS HONOUR: 

The Plaintiff seeks lump sum compensation pursuant to s.98 together with an amount for pain and suffering for alleged injuries to the back, left arm including left wrist and right leg. He further claims for sciatic referral pain to both legs.

He is a 66 and a half year old concreter who has been employed by the same business since 1963.  The third defendant took over the business from the second defendant in about 1994.  The plaintiff continues to be employed as a concreter.  The defendants take no issue with the split in the employment situation between them and Ms. Knoester in fact appears for all three defendants. 

The plaintiff said that at the start of his employment he was mainly doing kerb and channel work which was very heavy work as it was all manual.  He has only done a little kerb and channel work over the last 15 years (that is from about 1992).  Since that time he has done mainly house slabs and other concrete slabs for such buildings as high rises.  There is a mixture of housing and commercial jobs such as shopping centres.  At present he is working on the outlines for graves at the Keilor Mausoleum.

In general, he says that the work has become lighter over the years.  He no longer has to break up old concrete driveways by hand, push wheelbarrow loads of wet cement or manually hand trowel large slabs.  Machines have taken over these tasks.  The work still has some heavier aspects, though nowhere near as much as when he started.

He said that the use of machines has been gradually introduced over the years.  There was really no evidence as to the dates and use of such machines.  It was also difficult to find any definite evidence as to dates of different types of jobs.

As stated, he still works five full days a week as a concreter with occasional Saturdays.  He says that his injuries have made it difficult to perform such tasks as bending and lifting.  This also affects his social and domestic life.  He now only plays occasional nine hole games of golf and has problems performing such tasks as gardening, helping about the house and driving longer distances.

Obviously in considering any claim under s.98, I am limited to a consideration of injuries between 1 September 1985 and 11 November 1997 which I will refer to as “the relevant period”. The plaintiff did heavy work for the same employer prior to that earlier date and has worked as a concreter since the latter date.

The real consideration is the date of injury that leads to impairment rather than the date of impairment itself (see Turton v. State of Victoria [2002] VSCA 123). Where the final impairment is the result of injuries within and beyond the relevant dates, I believe it is permissible to look at the final impairment and apply principles of causation to ascertain the degrees of impairment attributable to injury or injuries within the relevant period (see Gennimatas v. TAC (2002) 5 VR 547).The “common sense” test of causation is applied in these circumstances (see Gennimatas, supra). 

Of course the plaintiff has the burden of proof as to issues of injury, impairment and the attribution of that impairment.  The plaintiff in the pleadings attributes the impairments to "number of injuries during the course of his work as a consequence of heavy work" (sic.) in the relevant period.  In addition he pleads that he "was injured on specific incidents" (sic.) at work.

There is no allegation of injury pursuant to s.82(6) of the Act.  The defendant initially pleaded s.82(6) of the Act as a defence but did not proceed to argue that alleged offence any further.      Without making any specific ruling on that point, I believe that it was appropriate for that “defence” to be withdrawn.

The plaintiff called corroborative medical material of specific significant injuries (requiring treatment and/or incapacity for work) to his back occurring on 19 February 1991, the left wrist in or about September 1988 and the right knee on about 19 February 1992.  He lodged claim forms and/or was paid benefits at about those dates.  He has also made further claims from time to time relating the problems back to those original injuries.  Certainly, he has had further specific incidents involving further injury to the back and left wrist after the relevant period which caused temporary symptomatic exacerbation at the very least. 

As stated, in addition he continues to work as a concreter albeit with much better mechanisation and work practices over the latter period of his employment.

On any view of the evidence he is a rather stoic individual who does not appear to readily go to doctors.  He has been treated conservatively by way of very temporary medication and physiotherapy over the years.  He has not progressed to any surgery.

His stoic nature can be seen from the fact that he still works as a concreter despite being 66 and a half years old. 

Also, radiological tests over the years show severe degeneration to at least his back and wrist.  An X-ray in February 1991 showed marked anterior lateral osteophytes present at all levels in the lumbar sacral spine with almost complete obliteration of the L5/S1 disc space.  An X-ray of the left wrist in March 2000 showed severe changes of arthropathy as well as a previous old un-united fracture to the scaphoid.

According to Mr Shannon, X-rays of the right knee in 1992 showed early medial compartment osteopathy with spiking of the tibial spine.

Apart from the above radiology, later X-rays and CT scans confirmed the earlier X-ray reports.

All of the doctors accept that this man has significant overall impairment to his back, left wrist and right knee.  The two doctors who examined the plaintiff on behalf of the defendant attribute the injuries and impairment to "gradual process" over the years, at least in the general sense of that phrase.

Mr Jones describes him as a very well motivated individual.  He says that he is surprised that his work capacity is as great as it is.  I echo these comments.

The plaintiff impressed me as a truthful witness who did not exaggerate his injuries or impairments and probably undervalued the problems he does have.  He was vague about dates of injury which is understandable given his long period of heavy employment with the defendants.  When his evidence is considered with the claims records and treating doctors’ attendances, the actual original dates of injuries become more apparent.

I accept his evidence that after the initial injuries to his back, left wrist and right knee (which I have set out above), those injuries never “recovered” in the strict sense of that word.  Although his symptoms may have subsided somewhat, he never reverted to his pre-injury state.  From time to time he had symptomatic aggravation at the very least which appears to have substantially reverted back to his continuing level after a period. 

However, in relation to his back, I believe that he had a more serious injury in about mid 1998 in which he first developed sciatica to the right leg. He makes no complaint of any sciatic-type symptoms, or indeed any symptoms at all, in his left leg. To that extent, I am not satisfied that he should be awarded any compensation pursuant to s.98 for any referred pain to the legs.

On the evidence, it is apparent that his general work as a concreter over the years has played some part in his overall impairment to the nominated back, left wrist and right knee.  Certainly, over the latter period of employment it would have played a less part. However on the evidence I am unable to make any findings as to the relevant period or periods of contribution to injury by his overall employment or the extent to which such periods contributed to his overall impairments.

It seems to me that significant injuries leading to permanent impairment have occurred to his back in February 1991, his left wrist in September 1988 and his right knee in February 1992 based on his oral evidence, the claims records, the GP's evidence and records of his practice, as well as the specialist medical evidence from both sides.

In relation to his back, the various assessments expressed as a percentage loss of industrial use by the various doctors varied between 20% and 30%. Taking into account the probable contribution by his general employment and at least the one specific episode in 1998, outside the relevant period, I am satisfied that he has sustained a 15% permanent partial impairment to the back, pursuant to s.98, including an allowance for the pain and suffering pursuant to s.98(5) as it then existed.

In relation to the left wrist the various percentages expressed as an industrial loss of use of the left arm as a result of the left wrist injury there are between 20 and 25%. I am satisfied on the evidence that the old un-united fracture to the left scaphoid occurred in an incident at work in about September 1988 when he took the full weight of an overhead piece of formwork. It would appear that the incidents in September 2000 and June 2002 were primarily of temporary exacerbation of symptoms only. However, there has been some undoubted contribution by his overall impairment to the wrist as well, though to a lesser degree than that in relation to his back. I assess the permanent partial loss of use of the left arm as a result of the non-dominant left wrist injury in about September 1988 at 20% loss of use, including s.98(5).

Finally, in relation to the right knee, the relevant assessments vary between 10% and 25% permanent partial industrial loss of use of the leg, though Mr Khan in giving the higher figure of 25% has expressly taken into account s.98(5) factors.

There is evidence that he sustained a significant injury to the right knee probably involving a meniscal tear in February 1992 as suggested by Mr Shannon. I accept there has probably been some contribution by his overall impairment since February 1992 towards his right knee, perhaps falling somewhere in between that in relation to the back and the left wrist. I assess the permanent partial industrial loss of use of his right leg as a result of the February 1992 incident at 17.5%, including an allowance for s.98(5).

I have already expressed my acceptance of the plaintiff’s evidence as to the effects of his injuries on his social and domestic life. Also, although he has been able to keep working in spite of these injuries which is to his credit, he is undoubtedly confronted by pain and other restrictions as a result of those work-related injuries in performing his day-to-day work tasks.

On my calculations the plaintiff is entitled to awards pursuant to s.98, including s.98(5), as follows:-

15% impairment to the back, $7,636

20% loss of use of the left arm, $11,139

17.5% loss of use of the right leg, $11,649

This means he is entitled to a total award of $30,424.