Bond v Victorian WorkCover Authority [2025] VCC 475

1. The plaintiff was born in May 1959. He left school in Year 8 and then almost immediately began working in manual labouring jobs. He worked as a house framer and labourer initially, and then a number of other jobs on civil and commercial construction sites. Relevantly, he commenced working with Watpac Civil & Mining Pty Ltd ("Watpac") as an earthmover, drainer, plant operator and labourer on 17 July 2001.[1]
2. This work often involved heavy manual labour. On or about 2 December 2011, he was operating a front-end loader, driving repeatedly over uneven ground. That caused him to suffer pain in his lower back. He deposes that this was the first time he experienced such back pain. He went to see a treating doctor due to worsening lower back pain and pain radiating into his right leg. He was prescribed Panadeine Forte and Celebrex and then underwent an x-ray on 6 December 2011.[2] This showed spondylolisthesis at the L5-S1 level.
3. He was unable to work due to the severity of this pain and submitted a claim for compensation through his employer, which was accepted. He went off work for about a month and then returned to work. On his return to work, he continued on with some physiotherapy and occasionally took medication. However, he returned to work doing normal duties throughout 2012, with the occasional attendance for physiotherapy. It is clear he had ongoing problems with his spine. He accepted in cross-examination that after 2011 his back was never the same.[3] For example, on 5 February 2013, he attended again on his treating doctor after lifting a motor. His doctor described his pain as "acute on chronic".[4] He was referred again for physiotherapy. In cross-examination, the plaintiff accepted immediately that description from his doctor of "acute on chronic" pain as being indicative of his condition.[5]
4. He also admitted freely that he only went to his doctor when things got bad, but that at other times he had twinges or back problems which he just managed at home.[6]
5. He was taken to a further note of 6 February 2014,[7] where once again he had attended the doctor with pain in his lower back following a sneeze. It was noted, there, that he had been taking Nurofen regularly and using a heat pack, but with little effect. Pain was in his groin and into his right leg, affecting his posture and walking. It is also relevant to note, of course, that in that note it is recorded that the plaintiff was at work doing jackhammering work, despite these problems.[8] It was put to the plaintiff that he had back pain so often it was difficult to recall all the various aggravations over the years. He accepted that.[9]
6. In February 2016, he commenced employment with a company called ADA Construction Services ("ADA"). In this role, he operated machinery as well as doing manual labouring work laying concrete pipes and doing trenching works. On 5 August 2016, he suffered an aggravation of his back problems when jumping from the truck to the ground. That occurred on a Friday, and despite trying to manage the condition at home the pain worsened, such that on the Sunday night he called an ambulance and was taken to hospital. He was admitted to the hospital overnight and then released the next day. It is relevant to note once again that, despite the injury flaring at work on the Friday, he had gone into the garden the next day and laid concrete pavers for long periods, according to the doctor's notes.[10] It was in that setting the back pain increased.
7. I recount that simply to make the point, which is apparent from the notes, that the plaintiff was a man who worked a very physical job and had all his life. Despite the fact he had problems with his back, which he accepted as being chronic from 2011, he was able to work his physical job and continue with his other past times of doing heavy gardening work, go-karting and fishing, which required him to manually take his boat out a few times a week into the bay.
8. After going to the hospital in August 2016, he went back to see his treating doctor[11] and it was noted he had left-sided back pain radiating into his legs.[12] By the middle of September, he was feeling good in respect of his back and knee pain[13] and it appears that he was working again.
9. The review at the hospital had revealed similar findings to those taken from 2011 onwards. That is, of spondylolisthesis of L5-S1, with a likely disc protrusion at L3-4 impacting the nerve root. He was advised simply to take analgesia and keep moving at home. There was no suggestion at that stage that he needed any surgery.[14]
10. He returned to work on full-time duties in September 2016 and worked throughout the remainder of that year, and into 2017 reasonably normally. His treating doctor recorded that he was walking 16 kilometres a day at work building a road in Coronet Bay, go-karting and fishing. There were no recordings in the treating doctor's notes of any further flare-ups.[15]
11. He had ceased work at ADA in December 2017 and begun working at another company called Turn Out Engineering ("Turn Out") a few months later. This work involved operating a push button Computer Numerical Control ("CNC") machine working with metal products. This did not involve any heavy lifting, however, he was required to bend at the CNC machines.[16]
12. He accepted that, in 2018, he would occasionally have flare-ups because of the heavy manual work that he was involved with.
13. In October 2018, however, he returned to his doctor, with what was described in the notes as severe back pain radiating into the left hip.
14. That flare-up resulted in a referral to the neurospinal unit at the Frankston Hospital.[17] The discharge summary was written on the basis of clinical examination, history and an updated CT scan which confirmed spondylolisthesis. He was discharged to his treating doctor's care to arrange an MRI. It will be noted that no recommendation for surgery was made.[18] At this time, his doctor also offered him laser treatment for his back pain. He began having this at the end of October 2018. By this stage, he was still attempting to work, but he was advised by his doctor that he needed to take time off work to recover with proper rest and start physiotherapy. He took that advice. Around this time, he ceased work at Turn Out, for what he describes as reasons related to it having been a casual job, however, indicated that he always wanted to return to work. He was challenged on this and it was suggested that he was actually hoping to get an early retirement and be pensioned off at this stage. However, the plaintiff rejected that suggestion and it can be seen in the treating doctor's notes he was advised by his treating doctor that with physiotherapy and rest he would be alright and be able to return to work.[19] Given this, I accept the plaintiff's evidence on this point.
15. The plaintiff returned to physiotherapy as well around this time.[20] An MRI scan performed on 21 November 2018 revealed spondylolisthesis again. Armed with the MRI scan, the treating doctor arranged for steroid injections to the back and these commenced on 28 November 2018. During this time, he was prescribed Lyrica but was not taking it as his back was getting better.[21]
16. The results of the rest, steroid injection and physiotherapy, were that the plaintiff felt his back pain had much improved. He described the steroid injection as being "the best thing since sliced bread". He sought a medical certificate for a return to work from his doctor.[22] This was forthcoming and the plaintiff obtained a position as a machine operator and labourer with Blue Peak on 18 January 2019. The plaintiff described this as heavy manual labour. He was in that employment on 17 July 2019 when the subject incident is said to have occurred. He described his condition in the period January to July 2019 as one where he would go to physiotherapy about once every three weeks to deal with residual back problems. He accepted that he had such problems with his back in cross-examination.
17. He accepted that in May 2019 his pain had reached a level where he had to go back and see his doctor.[23] However, I note that no repeat prescription of Lyrica or other pain medication was made, indicating that his pain was not to a level as times when such was required. He accepted that, without the injection, he would not have been able to work and so considered in May whether it was time for a further injection.[24] Nothing seems to have come of this and the plaintiff continued to work throughout June and July normally. He then described the incident on 17 July 2019 in the following terms:

"On this day, while I was standing on the blade of a digger, refuelling it, my foot slipped from the blade and I fell, landing on my buttocks. I suffered severe pain in my back following this incident, and I experienced right sided leg pain and began suffering a burning-type pain in my right ankle, and a stabbing type-pain in the big toe of my right foot. The pain became so severe after this incident that I was unable to sleep, and I consulted my GP - Dr Joyce Liang - the following day. I was referred for physiotherapy."[25]

1. The plaintiff was referred from there to see a neurosurgeon, Mr John Choi in early August 2019. By this time the plaintiff had been prescribed Endone. He recommended scanning, and on review of that material, suggested that a spinal fusion procedure be performed. Around this time, he underwent a nerve root injection which provided him with some temporary relief but continued to suffer ongoing severe pain. In September 2019, surgeon Mr Charles Li, agreed that he required surgery and he was put on the waiting list. This suggested a very substantial change in his situation.
2. The plaintiff initially sought to make a claim against his 2011 employer Watpac. However, this did not bear fruit (for reasons I will come to).
3. The plaintiff could not afford the recommended surgery. He attempted to obtain money from his superannuation fund, but could not, and so was placed onto the public waiting list. He gave evidence that he thought after the surgery was performed he would be able to return to work. However, the pandemic intervened and his surgery was delayed for a significant period. It only occurred on 26 July 2021. By this stage, the plaintiff had informed Blue Peak that he would not be returning to work and he did not do so after the surgery.
4. It is relevant that, on 31 January 2022, the plaintiff submitted impairment benefits claims in respect of his spinal injury at Watpac. This was subject of medical panel opinion, in which the Panel opined there was contribution from the Watpac employment to the extent of 5 per cent and implication of the incidents in 2016 and 2019 in the order of 15 per cent, making the current whole person impairment 20 per cent. However, it was only on 4 January 2023 that the plaintiff submitted a claim for compensation at all against Blue Peak in respect of the injury occurring on 7 July 2019. This was the first time the employer was notified of any incident occurring on this day in which the plaintiff's spine was allegedly aggravated.[26]

1. The parties admitted that the case revolved around the identification of the injury and the impairment consequences flowing from any injury on 17 July 2019. The parties agreed that the central legal test was set out in Petkovksi v Galletti,[27] where their Honours Southwell and Teague JJ stated:

"The accident did not cause the pre-existing condition; at this stage of the process the applicant must establish what injury was caused by the accident; where there is a pre-existing condition, it necessarily follows that an analysis must be made of the extent of impairment of a body function before and after the relevant injury."

1. As I have set out above, the defendant submitted that all that occurred on 17 July 2019 was a flare-up similar to those that had gone before. It submitted that this incident was, when seen in context, of no particular moment. To further that argument, the defendant raised a number of points.
2. First, there was no complaint to the employer of the injury.[28] An affidavit of Mr Cameron Roberts, the director of Blue Peak, was tendered in evidence. Mr Roberts deposed that no statement was made to him by Mr Bond that he had sustained an injury on 17 July 2019. In fact, the evidence went further than that. Mr Bond had returned to work for about a week after 17 July 2019 before going off completely. In those circumstances, the defendant submitted the plaintiff, himself, placed no particular weight on this incident which occurred on 17 July 2019. Mr Bond's explanation for this was that, in 2011 when he came to put in his WorkCover claim, he had been told by the Watpac manager that claims made on WorkCover are problematic for employers to deal with. This is because they affect the tendering prospects of a construction company, as many jobs ask for a list of how many workers are on WorkCover at the time the tender is submitted. In those circumstances, Mr Bond gave evidence he did not want to implicate Blue Peak in WorkCover. He gave evidence that Blue Peak had been good to him, and that he in fact had concealed his back injury from them, because he understood he had a long-term injury. He further hoped his back would settle down, as it usually did with some rest and physiotherapy, and he would return to work as normal. In many ways his evidence was to the effect he was trying to "look after" his employer.
3. It is necessary at this stage to state that the evidence given by Mr Bond, I consider, was totally reliable and frank. He was criticised by the defendant as being an unreliable historian at least, and unreliable overall at worst. I would not accept this latter characterisation. I certainly accept that, on some of the dates when he was alleged to have been to see a doctor he could not recall accurately, and similarly could not recall with accuracy some of the things he had been told by various doctors. However, given the length of time over which his back injury had occurred, such lapses in memory are easily explained. I consider he very fairly conceded matters against his own interest, such as the accuracy of various treating doctor notes indicating the frequency with which he had had back pain problems. He made no attempt whatsoever to hide these matters and accepted freely that he had, prior to 2019, a longstanding back injury, with very consistent flare-ups that incapacitated him for work for periods of time and required treatment. Overall, I considered him a reliable historian and accept his evidence overall as being accurate and truthful.
4. In that setting, I accept his evidence as to why he did not tell his employer of the event of 17 July 2019. However, this can also be supported by reference to the contemporaneous treating doctor's notes of 17 July 2019, which record:

Says OK but need to document injury."[29]

1. He was recorded as having pain on the right side, a burning sensation into the right ankle and a feeling of being stabbed in the right foot. A cortisone injection was requested by Mr Bond. He was given pain medication and referred for physiotherapy. An MRI scan was ordered. This notation strongly suggests that Mr Bond was aware of the seriousness of his injury. Not only had it required him to attend a GP on the same day, which he did not do every time there was a twinge in his back, but it also required further imaging, the prescription of pain medication and a referral for physiotherapy. These matters suggest that the incident was of some significance. The fact an MRI scan was also ordered is of real significance in the setting that he now had right-sided leg pain of a different quality to that which is recorded in any other note. A review of the notes show that, at times, there had been back pain, with some right leg radicular signs. However, the symptomatology that was recorded by the doctor of the stabbing pain into the right toe and right ankle, with sensations of burning and being stabbed, were certainly new. Mr Bond told his treating doctor that he wanted to keep working until retirement in seven years. This indicates very strongly he believed with treatment and rest, and potentially an injection, he could return to work. This also supports his evidence of why he did not tell Mr Roberts of the incident at work. Namely, that he wanted to avoid Blue Peak being damaged in its potential tenders by the recording of a workplace injury. In respect to this first argument, I do not accept the defendant's submissions for these reasons.
2. Second, the defendant pointed to the absence of any recording in Mr Choi's materials about the 17 July 2019 incident. This is undoubtedly true.
3. The referral to Mr Choi was made by the treating doctor. The referral letter itself is not in evidence. Its contents, therefore, and whether the treating doctor disclosed the onset of these symptoms and the incident itself, cannot be determined. However, Mr Choi makes the point that Mr Bond presented with worsening right-sided sciatica. This can only be a reference to the onset of what the treating doctor had considered to be new symptoms arising in July 2019. While, then, there was no specific reference to the incident of 17 July, there is certainly reference to the onset of the symptoms which the doctor had identified as coming from that date.
4. While broadly I would accept the defendant's submission on this point, noting Mr Bond, in evidence, did not state that he specifically discussed the 17 July 2019 incident with Mr Choi, I find there is not much weight to be placed on this point, given the history of symptoms that Mr Choi had recorded, which can only have emanated from the event of 17 July 2019, as noted by the treating doctor.
5. Before leaving this point, I should also mention two interrelated matters. The first is the MRI scan which was performed on the treating doctor's referral and is dated 27 July 2019.[30] It makes no specific mention of the event of 17 July 2019. However, it does mention a history of right-sided sciatica. It could be argued this supports the defendant's submission that Mr Bond, himself, placed no weight on this event and, rather, it was more a run-of-the-mill flare-up in his condition. I would reject that argument for the same reasons set out immediately above in respect of Mr Choi. Namely, that the presentation of the right-sided sciatica was a new symptom which was being investigated and this could only have stemmed from the events noted in the treating doctor's records on 17 July 2019.
6. Further allied to this point is the referral by the treating doctor on 28 August 2019 to The Alfred neurosurgery department. This occurred in the context of Mr Choi advising that surgery was needed, but Mr Bond was unable to afford it. In that circumstance, the treating doctor sought referral and hopefully surgery by the public hospital system. However, in that referral[31] there is no specific mention of the 17 July 2019 incident. The defendant submitted that, once again, this showed that the event of 17 July 2019 was of little moment. I would reject that argument, because the referral letter itself seems somewhat brief and incomplete. For example, it makes no mention of the seminal events of 2011, which was the first presentation of the back pain, and investigation at that time revealed the spondylolisthesis. It certainly does nominate the event of 8 August 2016, but why this is relevant when the events of 2011 were much more significant is completely unclear. Overall, the referral then is of no use in illuminating the significance of the 17 July 2019 incident. In addition, the referral back to The Alfred specialist consulting clinics on 9 September 2020[32] notes the spondylolisthesis occurring in August 2019. This nomination of a date when the plaintiff was not at work and is not said to have aggravated his condition on that day seems completely unclear. It furthers my impression that the referral letters were not documents of great accuracy and not much weight can be placed on them in trying to determine whether the date of 17 July 2019 was important in the development of the condition.
7. Next in time is the recording of The Alfred neurosurgery registrar, Dr Charles Li, back to the treating doctor, Dr Joyce Liang, on 25 September 2019.[33] It confirms the referral was made on the background of a four-month history of new right-sided radicular pain. This provides some loose support for the fact that the treating doctor and Mr Bond considered the events of 17 July 2019 to represent a real change in Mr Bond's clinical picture, which warranted specialist intervention and potentially surgery. In fact, so concerned was the hospital in respect of the right foot problems that separate investigations were commissioned to x-ray the right foot to exclude other pathology. This then confirmed that the right foot problems were referred radicular symptoms from the lower back condition.
8. Fourth, the defendant submitted that the reports of medico-legal occupational physician, Dr David Elder, who examined the plaintiff for the purposes of providing an impairment benefit assessment in respect of Mr Bond's impairment benefit claim against Watpac made no reference to the July 2019 events. So much can be accepted. However, it is to be remembered that Dr Elder was conducting an evaluation in respect of impairment of the back overall and specifically in relation to the initiating injury of 2011, given the claim was made in respect of that employer. In that setting, the lack of recording of the 17 July 2019 incident, I consider of little moment.
9. Fifth, the defendant submitted that the very late WorkCover claim which nominated Blue Peak on 4 January 2023, indicates that it was only having exhausted other WorkCover options that Mr Bond then came to nominate the importance of the injury at Blue Peak on 17 July 2019. To give some context to this submission, it will be recalled that Mr Bond had originally made a claim against Watpac in 2011, which was accepted. Mr Bond, in cross-examination, accepted he knew that, if he had suffered an injury at work, he had the ability to make a WorkCover claim, receive medical treatment and have weekly payments of compensation paid to him. Mr Bond explained, as I have set out above, why he did not do so in respect of the 17 July 2019 incident. However, Mr Bond was then cross-examined as to why he did not put in a further claim in August 2019 against Watpac. Mr Bond gave evidence that he attempted to, but that the claim went nowhere, because he did not have the relevant claim number. A call was made for any rejection of that claim. None could be produced. Mr Bond's evidence was said to be unreliable on this point. However, when examination is made of the notes of the treating doctor, it can be seen clearly that Mr Bond gave evidence which was largely consistent with an attempt being made to lodge a claim against Watpac.[34] Overall, then, I accept Mr Bond had attempted to signify the importance of the 17 July 2019 injury by making a WorkCover claim. As I have set out above, I accept his reasons for not nominating Blue Peak at this time: his belief that he would return to work and wanted to "look after his employer."[35]
10. For these reasons, I do not accept the defendant's argument on this point.

1. From the foregoing, it can be seen I accept that Mr Bond, since 2011, had sustained a spondylolisthesis of L5-S1 that had resulted in a chronic situation which he had to manage. Since 2011, that chronic condition was subject to acute flare-ups caused at work or by recreational activities, such as being in the garden. I have set out above the critical dates where such flare-ups required treating doctor attendances. However, I accept that in-between those times, Mr Bond sustained twinges, which he managed at home. Whether at home or after a treating doctor's assessment in this period from 2011 to 17 July 2019, he required physiotherapy and pain medication. At times of acute flare-up, which I have identified, he required physiotherapy on a once-per-week basis, which would then settle to becoming three weekly, and then for periods of time, not at all. He gave evidence that generally he attended physiotherapy when he felt he needed to, and would at times be weekly, for up to three weeks.[36] Similarly, at times of intense flare-ups when he went to his doctor, he was given prescription medication, such as Celebrex, Endone or Lyrica. At times, he was prescribed such medication for weeks at a time and then came off such medication when he returned to work. He then managed his chronic problem with the occasional use of Panadol or Nurofen. I find, further, that such chronic back problems did not prevent him, in the period from 2011 to the end of 2018, from working his normal everyday job. That job was heavy manual work, often involving the driving of heavy construction equipment over rough and uneven ground. He was able to perform this work on a full-time normal duties basis between 2011 and the end of 2018. That work at times was interrupted by the specific flare-ups that I have referred to above and set out in the chronology. These occurred in 2011, 2013, 2014, 2016 and 2018. These required some weeks off work, physiotherapy and medication, after which he returned to work on a normal full-duties work basis. I find that by the end of 2018 his back condition was such that he had progressed to needing cortisone injections into his spine. These gave him tremendous relief and allowed him to return to work on a normal full-duties basis. I consider that, up to July 2019, Mr Bond was able to work in normal full-duties work, performing heavy manual labour, with his chronic back condition. He was able to perform all of the activities of daily living and all the domestic chores around his house. In addition, his past time would involve taking his boat out on the bay to fish anywhere between four and seven times per week, and go-karting at an outdoor track once a month.[37]
2. However, on 17 July 2019, I find that he sustained a significant aggravation of his spondylolisthesis. I find that that resulted in the development, in particular, of a worsening of his pain, this was now constant and unremitting, requiring him to rest and take significant medication. In addition, he developed new radicular symptoms into the right leg, which he described, and is consistent with the treating doctor's notes, of being akin to putting an icepick under his toenail.[38] Those symptoms are consistent with Dr Hazem Akil's opinion that there has been an aggravation of spondylolisthesis caused by the events of 17 July 2019.[39] I accept that opinion. I consider it is consistent with the first recommendation for surgery on his condition made by Mr Choi.[40] Prior to that, there had been no suggestion of surgery by the specialists at Frankston who had reviewed him and the up to date radiology. In addition, his long-term treating doctor had never before referred him to a specialist for such treatment. Similarly, it is consistent with The Alfred report to the treating doctor of the development of new radicular symptoms which were now in the right side and warranted surgery.
3. This injury resulted in further impairment consequences which indicate a discrete injury was caused in July 2019. This can be seen in the interruption of his sleep, such that he was sleeping very poorly[41] and his activities of daily living and recreational activities were significantly interrupted.[42] The fact of injury on 17 July 2019 is also supported by the recordings of Dr Elder, who considered that Mr Bond's overall impairment currently was related in only a small way to the 2011 events. While Dr Elder did not have a record specifically of the 2019 event, he considered that events after 2011 had had a significant effect on the overall impairment. This is an opinion shared by the Medical Panel. The Medical Panel's opinion is particularly important, I consider, because of the comprehensive history they took of Mr Bond and their review of the material. That opinion considered that both the 2016 and 2019 incidents had effects on the overall impairment which outweigh that of 2011. In their report, they do not apportion what contribution the 2019 event itself had. However, implicitly, they did view the contribution from 2019 as being a real factor in the overall impairment that he currently has. This is similar to Dr Philip Sheard's opinion, the medico-legal orthopaedic specialist who assessed Mr Bond. Attention was drawn to the fact he did not consider the 17 July 2019 events as being a significant contributing factor, but only a contributing factor. Not much turns on this, I consider, given the fact I have accepted that after 17 July 2019, there was the development of new radicular symptoms and I have accepted Mr Bond's evidence of a worsening of his impairment consequences in the way I have set out above. Given what the Court said in Zlateska v Consolidated Cleaning Services Pty Ltd[43] that the injury in question has to be a cause of the impairment consequences, I find that Mr Bond satisfies this test. This is because of the very significant new organic symptoms and impairment consequences he began to suffer after the incident on 17 July 2019.
4. To summarise my findings then, I find that as a result of 17 July 2019, Mr Bond has suffered an injury, being an aggravation of underlying spondylolisthesis in the lumbar spine. I find that this constitutes a separate injury to that which occurred in 2011 and which was aggravated at times over the period from 2011 to July 2019. I find the impairment consequences of that aggravated condition are largely as set out by Mr Bond in his affidavits.
5. There was no real dispute that if I was to come to this finding then Mr Bond would satisfy the Court that the impairment consequences are more than considerable or marked on both pain and suffering and a loss of earnings basis. I briefly find, in this respect, that as a result of the injury on 17 July 2019, Mr Bond has totally lost his capacity to return to work in any form. I accept the evidence in his affidavit in respect of his impairment consequences and capacity for work. By reason of that finding and the principles in Advanced Wire & Cable Pty Ltd v Abdulle,[44] Mr Bond satisfies the Court that he is entitled to a determination in respect of pain and suffering and loss of earning capacity.

[1] Plaintiff's Court Book ("PCB") 6 at paragraph [5]

[3] Transcript ("T') 12, Line ("L") 16-17

[26] DCB 5, Affidavit of Mr Cameron Roberts sworn on 15 August 2024

[27] [1994] VicRp 32; [1994] 1 VR 436 at 444

[34] DCB 222 and DCB 238 and in addition, see the reference Mr Choi makes to such a claim at PCB 42

[37] PCB 10 - go-karting ceasing in about 2017

[43] [2006] VSCA 141 at paragraph [8]

[44] [2009] VSCA 170