Whelan v Kellett Container Transport Services Pty Ltd
[2014] VCC 1192
•31 July 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-02294
| WARREN DAVID WHELAN | Plaintiff |
| v | |
| KELLETT CONTAINER TRANSPORT SERVICES PTY LTD | First Defendant |
| and | |
| SECON CARRIERS PTY LTD | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 and 18 July 2014 | |
DATE OF JUDGMENT: | 31 July 2014 | |
CASE MAY BE CITED AS: | Whelan v Kellett Container Transport Services Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1192 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to lower spine – causative relationship between employment with first defendant, second defendant and subsequent significant disability – nature and extent of injury in the course of employment with first and second defendant – whether consequences of each respective injury achieve the “serious injury” level both as to pain and suffering and loss of earning capacity.
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Alcoa of Australia Ltd v McKenna (2003) 8 VR 452; Spence v Gomez [2006] VSCA 48; De Agostino v Leatch & Transport Accident Commission [2011] VSCA 249; Petkovski v Galletti [1994] 1 VR 436; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Zlateska v Consolidated Cleaning Services Pty Ltd & Anor [2006] VSCA 141; Broom v IPA Personnel Pty Ltd [2010] VSCA 295; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Leave granted to the plaintiff to bring proceedings for pain and suffering in respect of injury suffered in the course of his employment with the first and second defendants. Application as to loss of earning capacity refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B W Collis QC with Mr J Harris | Melbourne Injury Lawyers |
| For the First Defendant | Mr I S Gourlay | Thompson Geer |
| For the Second Defendant | Mr T J Ryan | Lander & Rogers |
HIS HONOUR:
Preliminary
1 The plaintiff commenced employment with the first defendant in 2002, and suffered an injury to his lumbar spine in the course of his work duties. He subsequently commenced employment with the second defendant in 2003 and suffered an aggravation of that lumbar spinal injury. He left employment with the second defendant in early 2004 and then worked in various capacities, mostly as a self-employed truck driver over the years until his employment ceased in 2010.
2 The plaintiff suffered a significant exacerbation of the injury in 2008 while lifting one of his children at home. Eventually, he had surgery to his lower spine, in the first instance, a discectomy undertaken by Mr David Wallace, neurosurgeon, on 9 October 2008, and subsequently, a fusion at the L4‑5 level undertaken by Mr Peter Turner, orthopaedic surgeon, on 5 July 2011.
3 Helpfully, Counsel for each defendant conceded that when assessed at the present time, the plaintiff met the criteria for serious injury, both in respect of pain and suffering and economic loss. The real issue to be determined in this application is the nature and extent of the injuries suffered by the plaintiff in the course of his employment, firstly, with the first defendant; and then with the second defendant; and whether the consequences suffered in respect of each of those injuries, when viewed separately, may be regarded as achieving the “serious injury” level.
4 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of the plaintiff’s employment with the first defendant, and a further separate application for leave to bring proceedings in respect of injury suffered in the course of the plaintiff’s employment with the second defendant.[1]
[1]Therefore there are two separate and distinct applications albeit, for convenience, dealt with in the same Originating Motion
5 The body function said to be lost or impaired is the lumbar spine. The application is thus brought under ss(a) of the definition of “serious injury” contained in s134AB(37) of the Act and leave is sought in respect of both pain and suffering and loss of earning capacity.
6 The plaintiff was the only witness called to give evidence and be cross-examined. In addition, affidavits of the plaintiff and his mother, medical and radiological reports, and extensive clinical notes of various practitioners were tendered into evidence. I shall not refer to all of this material in the course of this judgment, but rather those parts of the evidence and reports which are of most relevance in determining the issue which I have identified in this application. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature is well known and it is unnecessary for me to revisit the various relevant sections.
Relevant background
7 The plaintiff was born in 1971, and is now forty-two years of age. He is divorced from his wife, and has five children, all of whom are still young.
8 The plaintiff completed school to Year 10 and then undertook and completed an apprenticeship as a boilermaker and a welder. He worked in this area over a number of years and then decided to change career and work as a truck driver. He worked for a number of companies and on 16 January 2002, commenced employment with the first defendant (“Kellett”). All of the plaintiff’s working life has been spent in manual work in the areas of boiler making and truck driving.
9 Aside from an entry in clinical notes of November 1997 that the plaintiff complained of low back pain while lifting heavy weights, there was no other evidence to suggest he had suffered any back pain, nor received any treatment for lower back problems. According to his affidavit, he was physically well when he commenced employment with Kellett and was able to carry out all his work duties without difficulty.
10 The plaintiff enjoyed a range of recreational activities, including fishing, camping, four-wheel driving and water skiing. He undertook a range of the usual domestic activities and carried out mechanical maintenance work on the vehicles he drove.
The Kellett injury
11 There is some uncertainty as to the precise circumstances under which the plaintiff suffered injury while working for Kellett. Mr Gourlay, for Kellett, concedes an injury was suffered but that it was in the nature of a strain, and the consequences of that injury were only of short compass.
12 According to the plaintiff, the work with Kellett was particularly arduous. It involved extensive manual handling, in particular that he was required to unload goods from containers which he transported by truck. The goods from the containers varied in weight from between 5 to 40 kilograms. He said, further, that the Mercedes truck he was required to drive had a defective driver’s seat. The problem with the seat related to padding which had deteriorated over time. He said he made complaints about the seat and in June 2002, with the approval of his supervisor, he exchanged the driver’s seat for the passenger’s seat, which led to some improvement.
13 Around June 2002, he commenced to suffer pain in his lower spine. On 11 July 2002, he submitted a WorkCover Claim Form[2] which said that the date of injury was 25 June 2002. The form said:
“The padding in driver[’]s seat had deteriorate[d], leaving a hard rod that I was bouncing on with the general driving of the truck. The driver[’]s and passenger[’]s seat have since been swapped after the injury was sustained.”[3]
[2]Plaintiff’s Court Book (“PCB”) 177
[3]PCB 178
14 The plaintiff first consulted a physiotherapist at the Hoppers Crossing Physiotherapy Centre on 28 June 2002.[4] The history given was:
“1-2 weeks ago → LBP [low back pain] & leg pain ? incident.
Dr → 2/7 days after injury → referred to physio.
Been to chiro for treatment.”[5]
[4]Defendants’ Court Book (“DCB”) 51
[5]DCB 51
15 According to the report of the plaintiff’s then general practitioner, Dr Eqbal of the Westgate Medical Centre, the plaintiff attended on 29 June 2002 complaining of back pain over the previous week. A CT scan was undertaken on 4 July 2002 which showed:
“At L4–5, a minimal annular bulge associated with short pedicles results in reduced epidural fat within the lateral recesses but no definite neural compression. Slight effacement of the thecal sac and no abnormality of the facet joints.”[6]
[6]PCB 45
16 A report from Dr Eqbal noted the injury occurred when the plaintiff was required to drive a truck with a very old seat. Dr Eqbal provided various medications and the plaintiff continued to attend physiotherapy sessions at the Hoppers Crossing Physiotherapy Centre.[7] Those physiotherapy sessions continued until 2 February 2004. According to one of his treating physiotherapy therapists, Mr Ronchi, the plaintiff had suffered a legitimate lower back injury in the nature of a low-grade strain caused by long hours of sitting in his truck. He did not consider the injury would be longstanding nor debilitating.
[7]PCB 83
17 According to another physiotherapist, Ms Elliott, the treatment up until February 2004 had good results, such as to enable the plaintiff to return to work in November 2003. To Ms Elliott, the plaintiff complained of pain while lifting heavy objects in the course of his work duties. She said that by 2004, the injury had stabilised and that he was suitable for retraining in further employment.[8]
[8]PCB 84
18 By August 2002, the plaintiff was complaining to Dr Eqbal of pain not only in his lower back, but into the hamstrings and calves, and was referred to Mr Damian Tange, neurosurgeon. The plaintiff described problems with his back on and off in the course of his employment with Kellett and in particular because of a bad seat, up to June 2002. According to the history, after the seats were swapped “things were not too bad but he subsequently developed low back discomfort and bilateral leg discomfort”.[9] To Mr Tange, the plaintiff did not complain of any particular incident giving rise to pain, but rather by progressive onset.
[9]PCB 59
19 Mr Tange commented that the CT scan of 4 July 2002 showed “some minor changes with congenital lumbar canal stenosis and a small bulge at L4/5”.[10] Mr Tange noted the plaintiff had been off work since 10 July 2002 and was receiving pain-relieving medication. He said there was mild restriction of low back movement and said “I do not think that there was anything serious going on based on his symptoms and on the CT scan findings”.[11] He suggested an MRI scan, which was conducted on 6 September 2002.[12] This referred to developmental short pedicles at L3 and L4 but otherwise to no abnormality. Mr Tange told the plaintiff that there was nothing on the MRI scan to blame for his back discomfort and that, in his opinion, the plaintiff did not have chronic nor debilitating problems. Given the ongoing pain, however, he referred him to Dr Steven Jensen.
[10]PCB 59
[11]PCB 59
[12]PCB 46
20 According to a letter from Dr Jensen,[13] the plaintiff had “virtually … no pain in his back or legs”. The plaintiff, however, described difficulty with repetitive bending and stooping for prolonged periods. Dr Jensen observed a full range of movement although some difficulty in the flexed position, which he said suggested “some underlying instability”.[14] Dr Jensen concluded the plaintiff probably had some discogenic pain. He said there was no specific incident and the plaintiff would be hard pressed to relate his back pain to work. However, he said there was some evidence that exposure to whole body vibration in driving a truck was a risk factor in the development of discogenic pain. He said that given the plaintiff was pain free, there was no need for him to interfere further.
[13]DCB 9
[14]DCB 9
21 According to the clinical notes of Dr Eqbal, on a number of occasions in September and October 2002, when the plaintiff attended for treatment, he was not complaining of any pain.[15] However, in November 2002, the plaintiff complained of stiffness in his spine in the mornings and was undertaking stretching exercises and walking. According to his affidavit, he said that his low back pain persisted throughout his employment with Kellett. In the last months before he left that employment in December 2002, he said he was again required to undertake heavy manual lifting, and received an unfavourable response from Kellett. In his report of 23 September 2002, Dr Eqbal said that the plaintiff’s employment with Kellett “could have contributed” to the plaintiff’s back pain.
[15]DCB 59 – 60
22 In August 2002, the plaintiff was examined by Mr Anthony Buzzard, general surgeon, as the claim for compensation, which he had lodged, had been denied.[16] To Mr Buzzard, he said that his back pain commenced “a month or two after they put me into the Mercedes Benz …”. That occurred in March or April 2002. The plaintiff did not give a history of any particular incident. However, according to the history obtained, Mr Buzzard noted that the plaintiff’s work required him not only to drive, but to unload containers by hand. He noted the plaintiff was off work for two days from 3 July 2002, but then went back to the same job for a further three days. He was off work from the middle of July, and had not returned by the time he saw Mr Buzzard on 7 August 2007. He complained to Mr Buzzard of pain not only in the lower back, but also into his legs which, according to Mr Buzzard, suggested disc pathology in the low back with sciatica. However, Mr Buzzard noted it was extremely unusual to have bilateral sciatica and the radiology, aside from showing some minor bulging at L4–5, showed no evidence of other pathology. He was of the opinion that there was not sufficient evidence to suggest the plaintiff had suffered an injury and he considered the plaintiff was exhibiting functional overlay.
[16]DCB 4 – 7
23 According further, to the clinical notes of Dr Eqbal,[17] by December 2002, the plaintiff’s back was improving and his working hours increased. There was no further note in the clinical records of Dr Eqbal of low back problems until 6 October 2003.
[17]DCB 48
24 According to the plaintiff’s affidavit, by December 2002, he had returned to heavy manual lifting work with Kellett and fell into dispute with the management there. He left in December 2002. According to a return to work certificate of Kellett of November 2002,[18] the plaintiff’s duties included driving a truck for eight hours a day, five days per week, with no lifting nor repetitive bending.
[18]DCB 132
25 Because of the dispute concerning the causative relationship between the plaintiff’s lower back pain and his employment with Kellett, a Medical Panel determined on 20 May 2003, that the plaintiff was suffering from discogenic dysfunction in the lower spine relevant to the claimed lumbar disc strain, which was related to his employment.[19]
[19]PCB 182 – 183
26 In evidence, the plaintiff said the work he undertook at Kellett, in particular the unloading of containers, was the heaviest work he had ever undertaken. On occasions, he would unload four containers a day, whereas in previous employment, the most he had unloaded was one container a day.
The Secon injury
27 The plaintiff obtained employment with the second defendant (“Secon”) in January 2003. According to a pre-employment medical examination[20] of 13 January 2003, he complained of no problems in his lower spine and accepted he was fit to work as a truck driver. Further, in an application for employment,[21] the plaintiff complained of an earlier problem with his neck and shoulder, but nothing about any ongoing problems in his lower spine. In evidence, the plaintiff explained that he intentionally did not disclose the ongoing pain in his spine and the earlier treatment as he was of the view he would not obtain the employment if he did so. At that time, he had several young children.
[20]DCB 130 – 131
[21]DCB 133 – 135
28 According to the plaintiff’s affidavit,[22] his work at Secon also involved heavy manual handling, in particular handling heavy chains which were used to lift containers from trucks. He said the chains had to be thrown across the containers to be connected on the other side and their weight was very significant. He said, as a result of that work, he began to suffer further problems in his lower back in 2003, and again consulted Dr Eqbal. In addition, he continued with the physiotherapy treatment throughout 2003 and into early 2004.
[22]PCB 13
29 According to the notes of Dr Eqbal, the plaintiff again sought treatment for lower back pain on 6 October 2003.[23] The entry states:
“Back pain playing up lately – seen by physio – improved … .”
[23]DCB 49
30 In December 2003, Dr Eqbal referred the plaintiff for acupuncture treatment with Dr Chong.[24] Dr Chong treated the plaintiff on a number of occasions in 2003 and 2004 and then again in June 2006. According to the report, after the treatment with laser acupuncture, the plaintiff “recovered” from his symptoms and was discharged on 12 August 2006. The report noted that the plaintiff attended again in July 2008 when his condition had relapsed.
[24]PCB 74 – 75
31 The plaintiff continued to consult his general practitioner through until early January 2004. According to a further WorkCover Claim Form dated 28 November 2003,[25] the plaintiff described his injury as “aggravation of pre-existing lumbar disc strain injury”. The form notes that the plaintiff ceased work on 27 November 2003. The cause of the injury was said to be “continuous bending and handling of heavy chains”. The pain was said to be back pain and leg pain, treated with physiotherapy and medication.[26]
[25]PCB 184 – 186
[26]PCB 185
32 According to the clinical notes of the Westgate Medical Centre, the plaintiff was treated for back pain until 31 December 2004 where the note reads:
“WCC [WorkCover Certificate], back to normal from 2.2.04.
no back pain any more, not driving truck, he is in office.”[27]
[27]DCB 50.6
33 There is no further entry in the clinical notes of that practice of complaint of lower back pain, despite a number of attendances, until the plaintiff attends on 4 August 2008 with the following entry:
“Son jumped on his back 3/52 ago. Back pain SB [seen by] chiro. …”[28]
[28]DCB 50.7
34 According to the plaintiff’s affidavit, he was off work for a period at Secon and then transferred to the communications area of that company. He said he did not understand nor enjoy that work and observed that Secon were increasingly using sub-contractors to undertake truck driving work. As a result, he left that employment and purchased a truck and set up his own company, Whelan & Sons Transport Pty Ltd. From that point on, according to his affidavit, while he still undertook truck driving, the work was not as manually demanding and he did not have to undertake any unloading at all nor handle the heavy chains. He undertook sub-contracting for Secon, and a number of other companies, but remained in continual employment, either on his own behalf or as an employee, undertaking truck driving duties until April 2010.
35 The plaintiff attended another general practice, the Lincolnville Medical Centre, and was seen by Dr Barresi. The entry of 23 June 2006 records:
“Lumbar back pain – likely L4-5 disc prolapse.
Lumbar back pain. Initial injury from loading a container. Initial injury 2001.[29]
Had minor problems on and off for a few years.
Recently, was at work, doing a job with a lot of bending then got sore. Saw chiropractor – concerned about the pain, did not manage it – referred here.
Pain referring into ball of R foot. Pins and needles in foot and toe. Gets pins and needles in calf. … .”[30]
[29]It would appear this is a typographical error, and should read 2002.
[30]DCB 80
36 Dr Barresi arranged a CT scan of the lumbar spine which showed:
“… At L4–5 mild central disc bulging is present. This reaches the thecal sac but does not displace it. … .”[31]
[31]PCB 47
37 According to a letter from Dr Barresi of 6 July 2006,[32] he noted the plaintiff had suffered back pain since 2001 and presented with gradual exacerbation of that back pain. Dr Barresi said that the back pain was related to the original injury and that the clinical findings suggested an L4–5 disc prolapse with right-sided referred pain. Despite a number of attendances upon Dr Barresi in 2004 and 2005, the first complaint of back pain was not until June 2006.
[32]PCB 79
38 According to the plaintiff’s affidavit and evidence, throughout the period of his employment with Kellett and Secon, and then up until 2008, he continued to experience ongoing lower back pain in varying degrees.
39 In December 2003, the plaintiff, at the request of an investigator, completed a statement in relation to his work duties at Secon.[33] According to that statement, he said he had made a good recovery from the injury to his back, to the extent of approximately 90 per cent, and that at the end of his employment in March 2003, he felt “quite good and the problems I had, if any, were only minor”.[34]
[33]DCB 119-123
[34]DCB 120
40 In cross-examination, the plaintiff accepted that after the conclusion of his employment with Kellett and Secon, his low back pain was “manageable”. He said that after he left employment with Secon, the work did not require as much physical effort. His driving was around the Metropolitan Area.
Subsequent lumbar spinal problems
41 According to the plaintiff’s affidavit, in August 2008, he was lifting his young daughter when he felt a sudden sharp pain in his back. He returned to consult Dr Eqbal, and a CT scan of his lumbar spine revealed a moderate central disc protrusion at L4–5 displacing the thecal sac.[35] This, he said, was a significant aggravation of his lower back pain, and in September 2008, was admitted to The Royal Melbourne Hospital (“the hospital”). The clinical notes[36] showed the plaintiff gave a history of a mild disc bulge in 2002. The pain was said to radiate into his right lower leg. An MRI scan taken at the hospital showed:
“At L4–5 with a focal central posterior disc protrusion. This causes moderate spinal canal stenosis and the disc contacts the traversing L5‑S1 nerve roots bilaterally without compression.”[37]
[35]PCB 50
[36]DCB 69-77
[37]PCB 52
42 The plaintiff was later admitted to the hospital, and on 9 October 2008, Mr David Wallace, neurosurgeon, carried out an L4-5 discectomy. He was hospitalised over a number of days. Initially, the surgery provided considerable relief, in particular to the pain extending into his legs, but over time, the pain gradually returned.
43 In early 2009, the plaintiff moved residences, and changed his general practitioner to Dr Joanna Wright. He gave a history to Dr Wright of lumbar pain going back to his workplace injury of 2002. She noted another injury in 2008. By that time, Dr Wright said the plaintiff had developed major depression, secondary to his pain.[38] She considered he could not lift weights over 5 kilograms, could not sit or stand for more than 15 minutes and was prevented from undertaking many activities of daily living.
[38]PCB 86
44 In March 2009, the plaintiff resumed truck driving work, even notwithstanding a review by Mr Wallace in that month, who noted that since surgery, the plaintiff had gone backwards. Over this period, the plaintiff was prescribed various pain-relieving and anti-inflammatory medication and continued under the care of Mr Wallace. The medication included strong opioid medication, Fentanyl patches and OxyContin. He was treated by various practitioners at the hospital, including Dr Louisa Soh, a rehabilitation specialist, who received a history of intermittent back pain since 2002, with the development of severe back pain in 2008 while picking up his daughter. A range of medications and other treatments were undertaken but his low back pain, and referred pain to his legs, became worse.
45 The plaintiff was referred to Mr Peter Turner, an orthopaedic surgeon at the hospital, who undertook a spinal fusion at L4–5 in July 2011. This surgery reduced the referred pain into his legs and lessened, to some extent, his lower back pain.
46 As stated, the plaintiff ceased all work in April 2010 and has not resumed any employment since. From that time through to the present, the plaintiff has suffered significant low back pain and has had a range of powerful pain-relieving medication. A range of domestic, recreational and social activities have been curtailed or lost. In particular, lifting and bending is difficult, standing or sitting for any lengths of time, or engaging in physical activities with his children. His recreational activities, including water skiing, golf and camping are now physically beyond him. According to his affidavit, his back injury has destroyed completely his capacity for work.[39]
[39]PCB 40
47 In the course of re-examination, the plaintiff was asked as to the course of his lower back problems over the years since 2002. He said the following:
“A:They got worse, they improved a little, got worse, improved a little bit. I was always in some level of pain, the pain never disappeared. I’d manage it with painkillers, over the counter stuff, prescription and during the time that I was running my own business I was working on a lot of medication only because I had to – I was a self provider, without me there was no income. Didn’t tell Secon why – that I had a – had a claim, because I knew I wouldn’t get the job. And Terry Considine said so when I went in for a meeting, his words were, ‘If you had have told us that you had a claim I would not have employed you’. I passed their medical, and that was one of the reasons why I never – another one of the reasons why I never told them about the claim – I passed a medical. As far as they were concerned I was fit enough to work. There was significant – when my daughter – I lifted – went to lift my three year old daughter into the bed, then that’s when it just got really worse and it’s sort of been – I couldn’t say up and down – down and levelled off and down.
Q:Have you ever [been] pain free in your back and legs up until the time you had the fusion surgery from 2002 onwards?---
A:---No.
Q:--- for any lengthy period at all?---
A:I’ve always had pain.”[40]
[40]Transcript (“T”) 86, L1-25
Further medical opinions
48 Aside from the opinions of the various treating practitioners to which I have referred, the plaintiff has been referred to a number of other consultant doctors. Mr David Wallace, who has treated the plaintiff over a considerable period, provided a number of reports. He described the plaintiff as suffering longstanding back pain due to a lumbar disc injury which culminated in the rupture of the disc requiring surgical intervention. He said the plaintiff had always had problems with his back going back to 2002 and that his employment at Kellett resulted in an internal disc derangement which was related to heavy physical work and the uncomfortable seat. He said further, that the plaintiff’s employment at Secon was also a significant contributing factor to his lower back injury. He said that the work at Kellett was the cause of his back complaint, with significant contribution from his work at Secon. In his report of 29 August 2013,[41] he said the following:
[41]PCB 97 – 98
“I believe he suffered a lumbar disc injury during the course of his employment at Kellett Container Transport Pty Ltd (‘Kellett’). I believe the employment with Kellett was the initial cause of his injury. I believe all of his subsequent problems with his back relate to that original injury and its aggravation, first when working for Kellett and secondly with Secon. This original injury was the direct cause of his need for surgery in 2008 and 2011, and continues to be the underlying cause of his current condition and incapacity.
… The basic underlying problem for this gentleman was his original back injury in which he suffered an internal disc derangement with an annular tear of the L4/5 disc, and that disc injury was the cause of his ongoing intermittent back problems.
I have had the experience of some hundreds of patients since 1970 who have suffered a back injury with a partial tear of the annulus of a disc and who have thereafter had intermittent problems with back pain and unilateral or bilateral sciatica due to referred pain from the internal disc derangement or annular tear, without evidence of frank nerve root compression referrable to the site of a disc injury, and yet culminating eventually in a lumbar disc prolapse at that level, when the torn annulus finally gives way.
…
However, to get back to the point of both surgeons, Mr Brazenor and Mr Francis, that there were periods of absolute normality in between bouts of recurrent back problems, with or without sciatica, I would stress that this is a course of events that is not an infrequent occurrence after a back injury where the initial lumbar disc injury is the injury that sets up the subsequent course of events. I believe that during both periods of employment with Kellett after his original injury there, and subsequently in his employment with Secon, there was aggravation of the original injury, which has ultimately resulted in his current state.”
49 Mr Thomas Kossmann, orthopaedic surgeon, provided a lengthy report dated 19 January 2012.[42] He received a history from the plaintiff that he injured his spine in 2002 when he was unloading a container while working for Kellett. The plaintiff’s lower spine pain fluctuated in the years after that. He noted the plaintiff had suffered significant back pain since June 2002 and concluded that his employment, both with Kellett and with Secon, were each a material contributing factor to his lower back injury.
[42]PCB 105
50 Mr Kossmann provided a further report of 1 August 2013. He said the plaintiff’s employment with Kellett was the start of his lumbar spine pathology, aggravated through heavy work there. This worsened over the years and culminated in the bouts of surgery in 2008 and 2011. He said his physical work at Secon aggravated the pre-existing lumbar spinal condition and was a significant aggravating factor. On balance, his lumbar surgery was a consequence of the injury suffered at Kellett, accelerated by his work at Secon. He disagreed with the opinions of Mr Brazenor and Mr Francis.
51 Further, on behalf of his solicitors, the plaintiff was examined by Mr David Brownbill, neurosurgeon. Mr Brownbill received a history of seat problems while working at Kellett in 2002, and frequent bending, twisting and throwing of heavy chains in the course of his employment with Secon. He noted the onset of intermittent back pain during 2002 with radiation of pain into the legs, more so the right than the left. He noted the treatment history over 2002 and 2003. He perused extensive documentation, including radiological reports, hospital notes and clinical material. He noted the radiology of 2002 showed slight disc bulging at L4-5 which increased over subsequent investigations. He said the following:
“… I consider that on probability this man, based on a constitutional predisposition, sustained soft tissue damage to structures about the lumbar spine with likely intervertebral disc involvement as a result of his described work activities during 2002 and 2003 which acted as the basis for later disc derangement.
…
I note the sudden increase in back and leg pain which occurred whilst he was lifting his daughter in mid 2009[43] and I consider this on probability occurred as a result of further disc protrusion on the basis of the pre existing intervertebral disc derangement (for which his work activities were a contributing factor).”[44]
[43]This in fact occurred in 2008
[44]PCB 139
52 Mr Brownbill considered the plaintiff’s employment at both Kellett and Secon as a material contributing factor to the lumbar disc derangement.
53 Mr Brownbill was asked to comment on the opinions of Messrs Brazenor and Francis, who were retained on behalf of the defendants. Accepting the histories by those practitioners that the plaintiff had extended pain-free periods, he said that his clinical experience indicated that when lumbar spine degenerative changes have been aggravated, the resulting pain continues to fluctuate in the manner described, indefinitely, even when aggravating factors cease. He said there were patients who have fluctuating and increasing lumbar back pain without any specific changes on radiology. He said the absence of recorded pain by a general practitioner does not indicate that the pain did not occur.
54 The plaintiff was examined by Dr Peter Stevenson, general physician, in May 2012 at the request of the defendants. He noted the history of the onset of back symptoms in 2002, and exacerbation in July 2003. He noted the major exacerbation in August 2008. He concluded that the pain suffered by the plaintiff in the course of his duties at Kellett was non-specific back pain with unremarkable radiology. He said the causal relationship between the plaintiff’s lower back condition in 2012 and the Kellett employment was “most speculative”. He said the underlying condition was lumbar disc degenerative disease and there was no indication of any weakening of the disc caused by the Kellett employment. He said the pain was a temporary aggravation. Likewise, the injury at Secon was a symptomatic exacerbation rather than a pathological aggravation. He said the injury was temporary.
55 The plaintiff was examined by Mr J Kendall Francis, surgeon, in February 2011. Mr Francis received a history of the pain in 2002 and 2003, and noted that over the years, the plaintiff had persistent pain but said that that pain was not the residuum of the Kellett injuries, but rather the manifestation of his underlying constitutional age-related degenerative lumbar spine. He said the instances during the course of his Kellett employment were not related to the sequence of events over succeeding years.
56 Finally, Mr Brazenor, neurosurgeon, provided an extensive report of 14 May 2012 and two further reports of June 2012 and August 2013. He did not examine the plaintiff, and his opinion is based upon extensive clinical and radiological records provided by the solicitors for the defendants. Having perused all of the material, Mr Brazenor concluded that there were –
“… five cogent reasons for completely exonerating Kellett Container Services of any responsibility for Mr Whelan’s later troubles with his low back and the two operations which ensued therefrom.”[45]
[45]DCB 37
57 The five reasons were:
(i)The defective seat in the course of his Kellett employment would lead only to transient discomfort and not permanent structural injury.
(ii)The plaintiff suffered pain to his lower spine over several days before the alleged incident of 25 June 2002; and further, that according to the records of the subsequent general practitioner, there was an initial injury in 2001.[46]
(iii)The plaintiff’s back pain settled in early 2003 and despite working for Secon as a driver, there was no record of any further complaints of pain until October 2003.
(iv)The CT scan of the lumbar spine in July 2002 and the MRI scan of August 2002 showed only minimal bulging at L4-5. He referred to the assessment of Mr Tange, who considered that the radiology showed nothing to blame for the plaintiff’s back discomfort. He said these findings of 2002 contrasted markedly with the CT scan and MRI scan of 2008.
(v)Given the plaintiff went on to work for almost a year with Secon and continued to work full time thereafter until April 2010, that was inconsistent with him suffering a significant back injury in 2002.
[46]This is a reference to the clinical records of the Lincolnville Medical Centre which, I am satisfied from the surrounding evidence, is a typographical mistake.
58 Mr Brazenor concluded that plaintiff had suffered no permanent injury in 2002 or 2003 and that there was only a temporary aggravation in the course of the Secon employment. He disagreed with the opinions of Messrs Kossmann and Wallace.
Conclusions from the evidence
59 The first matter to consider is the credibility of the plaintiff, and the extent to which I can rely upon his evidence as describing the cause of his back condition over the years from 2002. Mr Gourlay, on behalf of Kellett, submitted I should have significant reservations about the plaintiff’s credit. He said the plaintiff had given wide and varying histories to various medical practitioners in relation to the cause of symptoms when working for Kellett.[47] The varying histories, according to Mr Gourlay, included reference to injury by reason of the truck seat, by the lifting of various goods and by an incident after making a delivery to premises known as “Lennox”. This, said Mr Gourlay, was a retrospective attempt to inculpate Kennett and Secon in respect of injuries which at best were only minor and transient, whereas the real precursor to significant back problems came after the incident in 2008 when the plaintiff was picking up, or playing with his children.
[47]See T56, T60, T61, T20, T27–30
60 Further, Mr Gourlay submitted that the plaintiff’s complaints of ongoing pain over the years going back to 2002 were inconsistent with various clinical records of the general practitioner and physiotherapist, and the statement made to the investigator, in December 2003, that he was completely, or almost completely, pain free.
61 However, I formed a different conclusion as to the plaintiff’s credibility. I found him an honest witness giving a fair account of the history of his injuries. There were some irregularities in the history, in particular of the onset of symptoms in the course of his activities at Kellett, but I am not of the view that that was an attempt to retrospectively identify causes of his pain. Rather, I accept that there were various activities at Kellett which gave rise to his back problems, in particular the heavy lifting of items out of containers, and the unstable and uncomfortable truck seat. It is a difficult task for the plaintiff to identify the specific cause of injury, but his complaints are more a reflection of those aspects of his work which caused ongoing pain.
62 I assessed the plaintiff as a stoic person, not inclined to make much of his lumbar pain and restrictions. I am satisfied that while there were undoubtedly times when his back was manageable, and giving him little significant discomfort, I accept his evidence that, by and large, he has never been pain free and that the pain has fluctuated from time to time. He did not disclose his injury, nor complain of it for much of his time at Secon, but that was because he wanted the employment as he had to provide for a growing family. If anything, this enhances his credibility. Likewise, he made little complaint to his practitioners over the years from 2004 to 2008, during which period he was largely self-employed. But again, as pointed out by Mr Brownbill, the fact that no complaints had been made does not necessarily equate to a complete lack of pain.
63 In the course of cross-examination, I observed the plaintiff to respond appropriately to the challenges made, and I did not detect any evidence of exaggeration nor reconstruction. I am not satisfied there is any basis upon which I should regard his evidence as anything other than reliable. With the possible exception of Mr Buzzard, there is no practitioner suggesting exaggeration nor functional overlay.
64 The determination of the resolution of the differing medical opinions is somewhat more complex. On the one hand, there are the opinions of Messrs Wallace, Kossmann and Brownbill that the plaintiff suffered significant injuries in both 2002 and 2003, each of which contributed to the plaintiff’s ultimate surgery and disability. On the other hand, there are the opinions of Messrs Francis, Stevenson and Brazenor, who conclude that the plaintiff suffered only transient minor exacerbations in 2002 and 2003, and neither employment was responsible for his current condition.
65 On balance, I prefer the opinion, in particular, of Mr Wallace. He treated the plaintiff over a considerable period of time, and performed one episode of back surgery. In particular, his report of 29 August 2013[48] is reasoned and authoritative, and reflects his considerable experience in neurosurgery. His report also reflects the logical progress of the plaintiff’s back condition based upon the evidence of the plaintiff, which I accept. If one observes the plaintiff’s condition prior to 2002 when he was able to undertake full-time employment without pain or restriction, and then compares that to the situation from June 2002 when he had significant treatment, an MRI and CT scan, physiotherapy, periods away from employment and specialist assessment, the position is markedly changed. The nature and extent of the treatment and medical intervention, in particular in 2002, suggests something far more than a transient minor injury. Moreover, Mr Brazenor did not have the opportunity to obtain a history personally from the plaintiff nor examine him, and his five exonerating reasons expressed in his report of 14 May 2012 are, to my mind, narrow and too adamant. It is difficult to understand how Mr Brazenor could be so conclusive that a defective truck seat could lead only to transient discomfort. Further, because there was no mention of bending and lifting in the concurrent clinical notes, that does not mean that this did not occur. Mr Brazenor was provided with mistaken information, in that the onset of low-back pain was 2001 rather than 2002. The information provided to him contained a typographical error. He considered the strongest evidence was the lack of significant pathology in the CT and MRI scans of 2002. However, I prefer the view, in particular of Mr Brownbill, that the nature and extent of discogenic back pain is not wholly determined by radiological findings. It is not an uncommon occurrence that persons with significant back pain have little radiology. Generally, radiology tends to confirm clinical evidence of disc damage.
[48]PCB 97
66 On balance, I accept the opinion of Mr Wallace that the plaintiff’s employment with Kellett was the initial cause of his injury and, in the course of that employment, he suffered an internal disc derangement with an annular tear at the L4-5 disc. This injury was the cause of the commencement of his back problems from that time. Further, in the course of his employment with Secon, he suffered a further aggravation. I accept his opinion that each of the injuries was directly causally related to the need for surgery in 2008 and 2011, and that each continues to be an underlying cause of his current condition and incapacity.
67 I further accept the opinion of Mr Wallace, given there were significant periods where the plaintiff was suffering only minor pain and restriction in his lower back, and modest referred sciatic pain into his legs, that that is a course of events not infrequently seen in patients where an initial lumbar disc injury occurs and is responsible for the subsequent severe disability.
Relevant case law
68 The cases, in particular from the Court of Appeal, relating to the issue of the causative relationship between injury and subsequent disability were the subject of submissions.
69 In Alcoa of Australia Ltd v McKenna,[49] Chernov JA, in an application pursuant to s135A(2) of the Act, said that the evidentiary burden, where a defendant sought to resist an application on the basis that the injury fell outside s135A(2), requires the defendant to show that the plaintiff’s case was “absolutely hopeless” or “bound to fail”.[50] Ashley JA considered that the “injury”, to which s135A(2)(a) and (b) refers, only becomes a “serious injury” if one of the consequences set out in s135A(19) is produced and that the employment in which the injury occurred was a significant contributing factor to that injury.[51]
[49](2003) 8 VR 452
[50]At paragraph [19]
[51]At paragraph [43]
70 In Spence & Anor v Gomez,[52] Maxwell P said the decision in Alcoa had no relevance to an application for serious injury under the Transport Accident Act.
[52][2006] VSCA 48
71 In De Agostino v Leatch & Transport Accident Commission,[53] Tate JA said that the principles established by Petkovski v Galletti[54] had application, and where an aggravation of a pre-existing condition occurred in a transport accident, the aggravation itself must, in its consequences, constitute a serious injury.
[53][2011] VSCA 249
[54][1994] 1 VR 436 at 444
72 In Grech v Orica Australia Pty Ltd & Anor,[55] Ashley JA, in a much referred to passage, having considered the history of workers’ compensation, said that the Act, as with its predecessors, contemplated that a consequence may have a multiplicity of causes, including a multiplicity of compensable injuries. That decision related to a carpel tunnel wrist injury which evolved over time, including in part over the “black hole” period before 20 October 1999.
[55](2006) 14 VR 602
73 In Zlateska v Consolidated Cleaning Services Pty Ltd & Anor,[56] the Court determined that it was sufficient for a plaintiff to show that employment was a significant contributing factor to injury, and not necessarily the sole or dominant cause of injury.
[56][2006] VSCA 141
74 In Broom v IPA Personnel Pty Ltd,[57] Ashley JA again, in an application involving s134AB of the Act said:
“The issues which were left for the judge’s determination were whether the appellant had established, on balance of probabilities, that she had suffered compensable injury in the course of her employment by IPA; and, if so, whether that injury was serious in its consequences. An injury may be serious in its consequences, as I have made clear on previous occasions, if it materially contributes to those consequences.”[58]
[57][2010] VSCA 295
[58]At paragraph [9]
75 In AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz,[59] the Court of Appeal again considered the issue of causation, particularly in the light of statements made by Ashley JA in Grech. Kyrou AJA said:
[59](2012) 34 VR 309
“Grech dealt with causation issues in the context of a single ongoing condition (bilateral carpal tunnel syndrome) which commenced prior to 20 October 1999 and continued after that date. The question for determination was whether the worker had suffered identifiable compensable injury to his wrists and hands on or after 20 October 1999, which resulted in or materially contributed to the consequences that he claimed constituted serious injury. The case did not involve two separate injuries arising out of two discrete incidents, where the subsequent injury aggravated the earlier injury. There is nothing in Grech which detracts from the principles in Petkovski.
Accordingly, for the purposes of s 134AB of the Act, an aggravating injury must itself qualify as a serious injury.
… the trial judge should have determined the applications … in the following manner.
First, his Honour should have identified each injury.
Secondly, his Honour should have delineated the impairment consequences of each injury.
Thirdly, in the case of the AG injury, which, although an aggravation of the Arnold injury, was a separate injury, his Honour should have determined whether the injury qualified as a serious injury … .
Fourthly, in determining whether Mr Filipowicz had discharged the onus of establishing that the AG injury was a serious injury, his Honour should have made a comparison between Mr Filipowicz’s condition before the AG injury and his condition after the AG injury, and should then have made an assessment of the additional impairment.
Fifthly, as the two injuries arose from separate incidents, they could not be accumulated. … .
…
The trial judge’s error in accumulating the effects of both injuries and asking himself whether each injury materially contributed to the ultimate consequences infected the entirety of his Honour’s judgment. … .”[60]
[60]At Paragraphs [28]–[38]
76 Although I respectfully agree with Ashley JA’s conclusion that a consequence of injury may have a range of causes, I accept I am nonetheless bound by the passages referred to from Filipowicz. As a consequence, and in accordance with those principles, I should determine the injury sustained by the plaintiff in each of the Kellett and Secon employment. I should then determine the consequences arising from each of those injuries, independent of the other and independent of any other intervening factors or incidents. Further, it is not permissible to accumulate the consequences from each of the respective injuries. Nor is it permissible to determine, that, in looking at the plaintiff at the present time and accepting that he has a serious injury, it is necessary to determine only that the injuries suffered respectively at Kellett and Secon materially contribute to the consequences which he currently suffers.
The consequences of the Kellett injury
77 I am satisfied that in the course of his employment with Kellett over 2002, the plaintiff suffered an injury to his lumbar spine. In all probability, the injury came about as a result of both particularly heavy lifting involving the unloading of containers, and in addition, that he was required to drive a truck which had a defective seat. It is not material whether one or other of the activities was the cause of injury and the other served to aggravate the pain. That is a matter that may be determined at trial, where it will be necessary to determine whether the injury occurred as a result of the negligence of Kellett.
78 It is clear that the plaintiff suffered considerable pain such as to seek treatment from his general practitioner, and extensive physiotherapy over the next several years. He was also referred to a number of specialists, including Mr Tange and Dr Jensen. Radiological investigations were undertaken and he required treatment with pain-relieving and anti-inflammatory medication.
79 I am satisfied from the evidence, in particular of Mr Wallace and Mr Brownbill, that in 2002, the plaintiff suffered a disc derangement at the L4-5 disc, although the prolapse of the disc at that level did not happen until a later time, probably around 2008.
80 I am satisfied from the evidence of the plaintiff that from that time, in varying degrees, he has continued to suffer pain in his lower spine, and referred pain into his legs. Further, the injury caused him to have time off work during 2002, and he only resumed on restricted duties, albeit by the end of 2002 he was required by his employer to carry out many manual tasks.
81 I accept the opinion of Mr Wallace that that injury was a direct cause of the need for the plaintiff to have the subsequent surgery in 2008 and 2011. The fact that an injury causing disc derangement contributes to subsequent major lower spinal surgery is, of itself, a consequence of that injury, and a very significant one.
82 I am satisfied that the injury at Kellett was a cause, although not the only cause, of the plaintiff’s ongoing pain, restriction, and need for significant quantities of medication and treatment. Again, if an injury is causatively related to the need for such treatment, then that is a consequence in itself, even although there were other injuries and incidents which contributed to that need for treatment.
83 I accept the evidence of the plaintiff that as a result of the injury at Kellett, his capacity to undertake unrestricted heavy duties was curtailed, and from that time, he was not able to undertake the heavy lifting work that he did while at Kellett.
84 When looked at collectively, all of these consequences of the original Kellett injury may be fairly described as “very considerable” and “more than significant or marked”.
85 However, in order to satisfy the Court that he is entitled to bring proceedings for loss of earning capacity, the plaintiff must prove that as a result of the Kellett injury, he has suffered a loss of earning capacity of 40 per cent or more when a comparison is made of his pre and post-injury earnings. That is no simple task in a case such as this, and I was not taken to any specific arithmetic analysis by Mr Collis, Senior Counsel for the plaintiff.
86 Although I am satisfied that the plaintiff suffered an injury with significant consequences in the course of his employment at Kellett, I am not satisfied that that injury, when the analysis proscribed by the Act is undertaken, reflects in a 40 per cent loss of earning capacity. The plaintiff resumed employment with Secon in 2003 and continued that employment throughout that year. Further, from 2004 through until April 2010, he remained in full-time employment, largely as a self-employed truck driver.
87 There is no issue at the present time that, bearing in mind his level of education, work experience, and the other matters which a court is required to take into account in considering the definition of “suitable employment” referred to in the Act, that the plaintiff has little, if any, work capacity. I am further satisfied that the injury sustained by the plaintiff at Kellett has contributed to that present work incapacity. However, my understanding of the principles established, in particular by Filipowicz, means that I need to be affirmatively satisfied that the Kellett injury, in itself and disregarding the Secon injury and the episode of 2008, led to a reduction in work capacity of 40 per cent or more. There is simply no evidence to that effect. There is no opinion of any medical practitioner which, specifically addressing the Kellett injury, leads to a conclusion of loss of earning capacity of 40 per cent or more.
88 In those circumstances, that part of the plaintiff’s application in respect of the Kellett injury which seeks leave to bring proceedings for loss of earning capacity must fail.
The consequences of the Secon injury
89 Likewise, I am satisfied that in the course of his employment with Secon, in particular in lifting and manoeuvring the heavy metal chains, the plaintiff suffered a further significant injury in his lower spine that was an aggravation of the original injury and further affected the disc at the L4-5 level.
90 Again, the plaintiff received treatment from his general practitioner, and physiotherapist, and also acupuncture treatment. He suffered ongoing pain, in particular in the latter part of 2003, and referred pain into his legs. He was unable to continue with the heavier aspect of his work at Secon, and took up lighter duties, although was not suited to that work and resigned his position.
91 I am satisfied, in particular from the evidence of the plaintiff, that there was a further reduction in his capacity to carry out manual handling duties as a result of the injury in the course of his employment at Secon. From that point on, his capacity to undertake his heavier employment duties was further reduced. Fortunately, he was able to continue in his work with the heavier unloading tasks undertaken by mechanical assistance. Again, I accept the opinion of Mr Wallace as to the aggravation of the plaintiff’s condition due to the injury at Secon.
92 Again, this aggravation was one of the underlying causes of the subsequent surgery and significant incapacity. Although only one cause, that is, in itself, a significant consequence of injury.
93 It is clear that from early 2004 until 2008, there were periods when the plaintiff suffered little in the way of pain, disability and restriction, both in respect of his lower spine and referred pain. That is evident from the comments in the various clinical notes. However, by that time, the original discal derangement from the injury at Kellett, and the aggravating discal derangement from the injury at Secon, had occurred. I am satisfied that in about 2008, in the course of playing with his daughter, it is likely that the plaintiff suffered a full prolapse of the L4-5 disc and this was a cause, and a significant one, of his ongoing disability, and need for surgery. However, the fact that that subsequent incident occurred does not derogate from the seriousness of the injury sustained at Kellett and Secon, and does not mean the consequences from those injuries could not be regarded as very considerable.
94 To a significant extent, the fact that the plaintiff did not seek treatment over the intervening years was more to do with the fact that he took a particularly stoical attitude to his back injury and continued in employment as a truck driver, being able to manage his lower back pain with some physiotherapy and over-the-counter medication. As was said by Nettle JA in Dwyer v Calco Timbers Pty Ltd (No 2):[61]
“… I suspect that, but for the way in which the appellant has been prepared to put up with his pain and suffering and get on with his business as best he can, the respondent may well not have disputed his claim. It is unnecessary for present purposes to reach a concluded view about that and I have not done so. But it would be unfortunate, and in my view wrongheaded, if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”[62]
[61][2008] VSCA 260
[62]At paragraph [3]
95 No doubt the plaintiff was motivated to maintain and continue employment, albeit with restrictions as to the heavier aspects, as he had young children to provide for.
96 I am satisfied that the consequences to the plaintiff in respect of each of the injuries with Kellett and Secon achieves the “serious injury” level, as to pain and suffering, as the legislation requires.
97 However, again, there is no precise evidence to identify that as a result of the Secon injury, the plaintiff has suffered a loss of earning capacity to the extent of 40 per cent. As has been said by the authorities on many occasions, this requires a reasonably precise arithmetic calculation that as a result of injury, a loss of earning capacity of 40 per cent or more has occurred. Again, in relation to the Secon injury, no such calculation has been undertaken. There is no medical evidence precisely evaluating, to the exclusion of the Kellett injury, and the 2008 incident, the plaintiff’s loss of earning capacity. For the same reasons advanced in relation to the Kellett injury, the plaintiff’s application as to loss of earnings in respect of the Secon injury, must fail.
98 I will thus grant leave to the plaintiff to bring common-law proceedings as to pain and suffering in respect of each defendant. However that part of the application as seeks leave in respect of loss of earning capacity, is refused.
99 I shall make further orders as to costs.
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