McCabe v Transport Accident Commission [2025] VCC 747

1. For the reasons that follow, I find that Mr McCabe has satisfied his onus to establish that he suffered an aggravation injury to his spine in the transport accident. That aggravation has taken away his capacity to work. He has a "serious injury" as a result of the transport accident on 2 July 2019.

1. The following matters of background were, I believe, uncontroversial. Where they were in contest, these represent my findings, save where otherwise indicated.
2. Mr McCabe left school after completing Year 8. He initially worked in a service station for two years or so. He then obtained work for a lift company. He became a lift and escalator fitter, and was employed as such throughout his working life. At the time of the transport accident, Mr McCabe was employed by United Lift Services.
3. Mr McCabe has poor reading, writing and computer skills.
4. Mr McCabe described numerous prior health issues in his affidavits:

(a) he has an unresolved left Bell's palsy;

(b) in around 1984, he injured his lower back carrying a heavy gas bottle;

(c) in 1991, he injured his lower back again. Thereafter, he experienced intermittent lower back pain;

(d) in 1993, he injured his chest in a transport accident;

(e) on 16 July 2001, he injured his neck and right shoulder at work;

(f) in 2007, he aggravated the injuries to his back and neck, and further strained his right shoulder at work;

(g) in 2008, he injured his right shoulder whilst camping. He underwent right shoulder reconstruction and stabilisation surgery in February 2009;

(h) on 5 April 2013, he injured his right shoulder in an incident at work. He underwent an arthroscopic subacromial decompression and bursectomy in October 2013;

(i) in June 2014, he had surgery to repair a hernia;

(j) on 25 February 2016, he had a fall and injured his left knee.

1. The TAC contended that the above account of his prior health issues was materially incomplete. I will address that matter later in these reasons.
2. Mr McCabe's prior health issues impacted upon his capacity to work at various times.
3. Since about 2001, Mr McCabe was continuing to work on a full-time basis, but he was performing modified duties by reason of his ongoing symptoms. From about 2008, he attended physiotherapy approximately fortnightly. Prior to the transport accident, he was taking two Panadeine Forte a day, occasional Tramadol and occasional Endone.
4. In the transport accident Mr McCabe was driving a Toyota Corolla work vehicle on Dryburgh Street, North Melbourne. He was stationary, waiting to turn left into Spencer Street.[2] He was struck from behind by another vehicle. Mr McCabe stopped his vehicle around the corner and got out of his vehicle to inspect the damage. Neither the police nor an ambulance attended the scene of the accident.
5. Mr McCabe deposed that, shortly after the transport accident, he heard a grinding type noise in his upper back and was then in a significant amount of pain.
6. Mr McCabe continued his intended journey to pick up a work colleague from Southern Cross Station. They headed to a nearby Mercedes dealership. Mr McCabe said that he was unable to remain at work because of pain.
7. Later that day, Mr McCabe attended his general practitioner ("GP"), Dr Inderjit Arora. He complained of pain in his upper back and a severe headache.
8. Mr McCabe's treatment has been conservative. He was referred to Mr Girish Nair, neurosurgeon, who advised conservative management. He has had hydrotherapy, continued to have physiotherapy, has undertaken a pain management program and has been prescribed additional medication for his upper back pain.
9. Mr McCabe has not worked in any capacity since the transport accident. His employment has been terminated by reason of his incapacity.
10. He currently takes 2,100 milligrams of gabapentin per day, Panadeine Forte or Tramadol daily, and Endep at night. He consults Dr Christopher Woodgate, pain physician, approximately three-monthly for review of his medications. He continues to attend physiotherapy fortnightly.
11. Mr McCabe lives with his wife on a 20-acre property in rural Victoria. Two of his adult sons, their partners, and two grandchildren also live at the property.

1. The TAC submitted that Mr McCabe was not a reliable witness, because:

(a) in his affidavit affirmed on 8 September 2023, Mr McCabe did not identify the injuries to his mid back sustained in the incidents in 1993, 2001 and 2016;

(b) Mr McCabe's account of the onset of pain in his spine following the transport accident was inconsistent;

(c) his evidence as to which part of his spine was aggravated in the transport accident was vague and unclear;

(d) Mr McCabe failed to give an adequate history of his prior health issues, in particular, his prior spinal problems, to Professor Richard Bittar, neurosurgeon, and Dr Khayyam Altaf, occupational physician.

1. Senior Counsel for Mr McCabe did not make specific submissions regarding the credibility and reliability of the plaintiff.
2. Mr McCabe's affidavit affirmed on 8 September 2023 did not include reference to the injuries Mr McCabe suffered to his mid-back in 1993, 2001 and 2016. When Mr McCabe was asked about this during cross-examination, he:

(a) could not remember whether he injured his spine in the 1993 transport accident;

(b) initially denied that he suffered mid-back pain in the incident in 2001.[3] When an account he reportedly gave to the Medical Panel in August 2018 of upper back pain from 2001 until at least 2008 was put to him, Mr McCabe said "I must have told them if it's there".[4] When asked why he did not mention suffering upper back pain as a result of that incident in his affidavit, Mr McCabe responded "Because of my neck. I went to a Medical Panel and they said my neck and they give me 26 visits per year" (sic).[5] Mr McCabe said he had been attending for physiotherapy ever since, and the physiotherapist would treat "whatever was sore at the time ... he was doing my neck and the upper back and at times he do my knee as well ... the whole back" (sic);[6]

(c) accepted that he injured his mid-back in the fall in February 2016. When asked why that was not mentioned in his affidavit, Mr McCabe said "because it didn't - I just told them that went away, it's more me knee ... the pain, the stiffness pain went away, sorry, back to where it was and then I had the car accident (sic)".[7]

1. I find that Mr McCabe's affidavits were deficient regarding the prior symptoms Mr McCabe experienced in his mid-back. When more contemporaneous accounts were put to him, Mr McCabe readily accepted them. In his oral evidence, he did not shy away from the fact that he had previously had pain in his mid-back.
2. I find the deficiency in his affidavits is likely a product of Mr McCabe's complicated medical history and his difficulty remembering and articulating what pain he had, and where, at various times over many years.
3. In that context, I find that deficiencies in Mr McCabe's histories to doctors as to the nature and extent of his prior health conditions, in particular, his prior mid-back problems, was probably not indicative of an intent to mislead or downplay his pre-existing problems.
4. I find that Mr McCabe's use of different descriptors for the onset of his upper back pain following the transport accident; that is, whether he experienced a clunking or grinding feeling, are not consequential inconsistencies.
5. Mr McCabe's affidavits outlined that the transport accident-related pain was in his upper back, between his shoulder blades.
6. As outlined later in these reasons, Professor Bittar's report dated 19 November 2024 was inconsistent with respect to Mr McCabe's prior mid-back pain. I do not make any adverse finding as to Mr McCabe's reliability given that inconsistency.
7. In his report dated 9 December 2024, Dr Altaf did not mention Mr McCabe's prior thoracic spine pain. During cross-examination, Mr McCabe was asked whether he told Dr Altaf the following:[8]

"In the hours following the collision, your client noticed a 'clunk' sensation in his neck accompanied by pain, which initially settled but was followed by the onset of pain in his upper-to-mid thoracic region, specifically between the shoulder blades. This pain, which he had never experienced before, progressively worsened over the next few hours and days and has persisted over the past five years."

1. Mr McCabe could not remember what he said to Dr Altaf, but said that he had not experienced the pain he has had since the transport accident before:

"I haven't experienced that, this dull pain that hurts, that won't go away ... Not that pain, yeah. It really hurts, it really, really hurts."[9]

1. I formed the impression that Mr McCabe was an honest witness who was doing his best to recall his complicated medical history. Meaning no disrespect to him, he struck me as an unsophisticated man. He readily accepted that he was experiencing symptoms in his whole spine prior to the transport accident, requiring analgesia and physiotherapy.
2. Despite the health issues he experienced over many years, Mr McCabe continued working as a lift and escalator fitter until the transport accident. I formed the view that he has a strong work ethic.
3. In light of Mr McCabe's unreliability as to his prior health issues, I look to contemporaneous and objective evidence to determine the nature and extent of Mr McCabe's pre-accident condition; however, I find that his account of the nature and extent of the symptoms he experienced in his spine since the transport accident, and the effect of those symptoms upon his work capacity, is reliable.

What was Mr McCabe's condition prior to the transport accident?

1. Ultimately, two questions were agitated relevant to this issue.
2. First, what long-term impairments were affecting Mr McCabe just prior to the transport accident?
3. Second, was Mr McCabe's capacity to work deteriorating prior to the transport accident?
4. The TAC tendered an affidavit sworn by Mr McCabe on 5 December 2019, submitted in support of a serious injury application with respect to the left knee injury sustained on 25 February 2016.[10] In that affidavit, Mr McCabe deposed to suffering upper back pain in the 2001 incident. He deposed to suffering mid-back pain in the 2016 incident but stated that pain slowly improved and it was his left knee that was causing most difficulty. He deposed that he significantly aggravated his upper back pain in the transport accident which resulted in him ceasing work.
5. Mr McCabe deposed to the following ongoing impairments by reason of his left knee injury:

(a) Constant pain;

(b) Difficulty kneeling, standing, walking long distances, and walking on uneven ground;

(c) Reduced capacity to fish;

(d) Reduced capacity to perform maintenance tasks at home;

(e) Disrupted sleep.

1. The TAC tendered a second affidavit sworn by Mr McCabe on 5 December 2019. The second affidavit was submitted in support of a serious injury application with respect to the right shoulder injury sustained in April 2013. He deposed to ongoing restrictions in the use of his right arm. He deposed that he was able to continue performing light duties at work, and would have continued to do so had it not been for the transport accident.

1. Numerous reports and clinical records were tendered from Mr McCabe's GP and his physiotherapist. Both of these practitioners have been treating Mr McCabe for many years and have seen him on a regular basis, both before and after the transport accident.

1. Nine reports were tendered from Dr Arora, dated 7 September 2006, 20 December 2007, 31 January 2008, 7 May 2014, 27 September 2016, 27 April 2017, 3 May 2017, 31 October 2019 and 19 November 2024. Some certificates of capacity, completed by Dr Arora between 2016 and 2024, were also tendered.
2. In his report dated 7 September 2006, Dr Arora noted that in the 2001 incident, Mr McCabe suffered injury to his mid back, lower cervical spine and left shoulder. He diagnosed a strain injury to the shoulder and neck with underlying adhesive capsulitis and synovitis. He noted Mr McCabe was on full time modified duties at work. He required fortnightly physiotherapy treatment in the long term.
3. In his report dated 31 January 2008, Dr Arora noted that Mr McCabe continued to suffer from a "painful condition of neck, mid back and left shoulder".[11] Additionally, he had recently strained his mid-back and right shoulder lifting a heavy plate at work.
4. Dr Arora's reports dated 7 May 2014 and 27 September 2016, noted that Mr McCabe was continuing to suffer from a musculoligamentous strain injury to both shoulders, his neck and upper spine, and was continuing to perform modified duties full time. He required continuing physiotherapy.
5. On 27 April 2017, Dr Arora reported that Mr McCabe sustained a right shoulder strain at work and had developed an abdominal hernia. He was able to continue to work full time with restrictions.
6. On 3 May 2017, Dr Arora reported that in February 2016, Mr McCabe suffered an injury to his left knee and mid to lower back when he fell into a pit at work. He was able to continue to work full time with restrictions.
7. On 31 October 2019, Dr Arora reported to Mr McCabe's solicitors. He noted that Mr McCabe fell into a pit at work and injured his left knee, middle back and upper lumbar back. Dr Arora noted that Mr McCabe had to take precautions at work to avoid aggravating his injuries. Dr Arora further noted that the injuries sustained in the pit incident also affected Mr McCabe's ability to help with indoor and outdoor tasks at home and participate in his hobbies. The medical report made no reference to the transport accident which had occurred almost four months previously.
8. On 19 November 2024, Dr Arora reported to Mr McCabe's solicitors regarding the injuries sustained in the transport accident. Dr Arora stated that Mr McCabe consulted him on the day of the transport accident:[12]

"... He was thrown around in the car during that accident. He developed pains all over his spine. [E]xamination revealed tenderness over his spinal area, worse in the mid back with painful and restricted movements of the spine. ... ."

1. Dr Arora diagnosed a "muscular-musculoligamentous strain injury to [the] cervical spine, thoracic spine and lumbar spine".
2. Dr Arora noted that Mr McCabe did not have a capacity "to do any kind of work at present" or in the immediate future.[13]
3. As to pre-existing difficulties, Dr Arora stated "[Mr McCabe] strained [his] upper lumbar spine [a] few years back. It has been stable for [the] last few years."[14]
4. The tendered certificates of capacity identified Mr McCabe's capacity to work from time to time with reference to the injuries sustained in particular incidents:

(a) Two WorkCover certificates of capacity issued in March 2016 certified Mr McCabe unfit to work due to a "musculo-ligamentous strain injury to [the] thoracic and upper lumbar spine".[15] These certificates related to the injury suffered in the fall into the pit in February 2016. Initially, the left knee was not part of the claimed injuries.[16] By 2018, the certificates referable to injury sustained in that incident also included reference to a "musculo-ligamentous strain injury to [the] left knee" and Mr McCabe was certified fit to perform suitable employment.[17] The certificates issued in June 2019,[18] August 2019[19] and May 2024[20] continued to certify Mr McCabe fit for full-time modified duties by reason of those injuries;

(b) A WorkCover certificate of capacity issued on 13 June 2019 certified Mr McCabe fit to perform modified duties by reason of a "rotator cuff musculo-ligamentous injury".[21] A further certificate in substantially the same terms for the same injury was issued in June 2024;[22]

(c) A WorkCover certificate of capacity was issued in June 2019 for a "musculo-ligamentous [s]train injury. [S]train upper lumbar back" certifying Mr McCabe fit for modified duties.[23] Further certificates in substantially the same terms for the same injury were issued in August 2019[24] and June 2024;[25]

(d) On 29 May 2024, Dr Arora issued a Centrelink medical certificate, noting that Mr McCabe was unfit to work by reason of a musculoligamentous strain injury to the spine with a date of onset of 12 January 2001 (the primary condition) and a musculoligamentous injury to the right shoulder and left knee with a date of onset of 1 June 2013 (the secondary/related condition).[26] Mr McCabe was asked about this certificate during cross-examination. He said that the certificate was submitted in support of an application for a disability support benefit. That application had not yet been determined.

(e) Two TAC certificates of capacity were tendered which encompassed the injuries sustained in the transport accident. On 15 August 2019, Dr Arora certified Mr McCabe unfit to work in any capacity by reason of "Musculo-ligamentous strain injury to thoracic, upper lumbar and neck area (car accident)".[27] In May 2024, Dr Arora issued a certificate of capacity referencing the injuries sustained in the transport accident. He noted:[28]

"To try to work : can lift up to 5kg. Must avoid frequent bending, pulling, pushing. To start 4 hours twice a week for 2 weeks first, then review."

1. As noted above, in his later report, in November 2024, Dr Arora opined that Mr McCabe had no work capacity by reason of the transport accident injury.

1. Four reports were tendered from Mr Akgoz dated 24 September 2016, 25 July 2017, 28 January 2018 and 9 October 2024. Excerpts of Mr Akgoz's clinical records between 5 June 2018 and 31 January 2024 were also tendered.
2. In his report dated 24 September 2016, Mr Akgoz noted that:

(a) On 16 January 2001, Mr McCabe suffered an injury to his right shoulder, upper back and neck in an incident at work. Mr McCabe consulted a neurosurgeon, who recommended a cervical fusion; however, Mr McCabe declined. Over the following years, Mr McCabe took occasional days off work due to his condition, and had physiotherapy to manage chronic pain;

(b) In 2007, Mr McCabe aggravated his injuries at work, suffering upper back pain "referring down from neck into lower thoracic spine. He again sustained (sic) relief with physiotherapy and was able to continue working most days";[29]

(c) In 2008, a Medical Panel approved up to 26 physiotherapy sessions per year;

(d) In October 2013, Mr McCabe underwent a right shoulder subacromial decompression and bursectomy, requiring six or seven weeks off work.

1. As at September 2016, Mr Akgoz noted Mr McCabe's current status as follows:[30]

"Mr McCabe has chronic right > left sided cervical spine, dorsal thoracic spine and right shoulder complex symptoms.

His radiological examinations demonstrate multi-level degenerative changes in the cervical spine with the C5/6 foraminal stenosis, cervical spondylosis and C4/5 stenosis. Previous MRI [s]can of right shoulder has also demonstrated tendinopathy of supraspinatus and subscapularis. His [t]horacic spine demonstrates upper kyphosis with degenerative disc changes. Lumbar spine demonstrates disc bulge at L5/S1 intervertebral level."

1. Mr Akgoz recommended continuation of physiotherapy fortnightly "for the management of cervical and upper thoracic spine therapy, as well as mobilisation of the shoulder complex".[31]
2. In his report dated 25 July 2017, Mr Akgoz noted that he was treating Mr McCabe for mid-to-lower thoracic spine pain and dysfunction with occasional referral into the bilateral posterior ribcage. He was also treating him for cervical and upper thoracic spine pain. He said he began treating Mr McCabe's left knee following a workplace incident on 25 February 2016.
3. In his report dated 28 January 2018, Mr Akgoz stated that Mr McCabe gave him the following information about the workplace incident on 25 February 2016:[32]

"... [H]e had a fall at work at Melbourne Airport on 25/02/2016 while stepping over uncovered pit on escalators & fell backwards onto steel edge landing on mid-back. The patient predicts the fall was over a 1 metre drop. The mechanism of the fall involved his left foot staying up on ground level while he fell which also severely strained his left knee."

1. Mr Akgoz stated that prior to February 2016, Mr McCabe -

"... had never previously complained of or received treatment for pain in [the] mid-to-lower thoracic spine region or left knee. He states he has never previously had any ongoing pain in these regions."[33]

1. Mr Akgoz recommended continuing physiotherapy, and noted Mr McCabe's condition was not yet stable.
2. In his report dated 9 October 2024, Mr Akgoz made the following diagnosis of the injury sustained in the transport accident, "cervico-thoracic whiplash & related cervicogenic headaches".[34]
3. Mr Akgoz opined that Mr McCabe was unfit for his pre-injury employment by reason of his transport accident-related injury.
4. As to his pre-existing injuries, Mr Akgoz stated:[35]

"Mr McCabe did have pre-existing injuries to similar regions of his spine through past work-related injuries however the motor vehicle accident has caused aggravation to these injuries including severe multi-level degenerative changes & stenoses which have never settled back to the pre-motor vehicle accident baseline."

1. Excerpts of Mr Akgoz's clinical notes between 5 June 2018 and 20 June 2019 were tendered. Mr McCabe was asked about various entries during cross-examination. Understandably, he was unable to remember what he had said on any particular date, but accepted that the notes likely reflected what he reported from time to time.
2. Those clinical notes reveal that prior to the transport accident, he complained of variable neck and upper back pain, stiffness and pain across his shoulder blades, and pain and tingling in his right hand. He reported that work aggravated his pain. Mr McCabe was consistently taking one Tramadol a day, two Panadeine Forte and one Endep. He occasionally took Endone. He reported that reading for more than 20 minutes, lifting more than 15 kilograms, driving for more than 60 minutes and lying on his right side aggravated his pain
3. Mr McCabe was asked about his attendance upon Mr Akgoz on 18 July 2019. This was 16 days after the transport accident. The clinical note, which made no reference to the transport accident, relevantly recorded:[36]

"Pt reports having had slightly decreased mid-back pain for first few days following last session however still had severe lower Cx Sp pain for next few days. Pain in mid-back has now returned to usual severity & is referring to L) side of sternum. No longer having pain with deep inspiration. Nil cervicogenic headaches or 'pounding" in R) eye since last session. Nil pain going down to little finger on L) hand since last session. Nil R) thumb + index finger 'electric shock pain' & nil 'locking up' since last session. Nil 'tingling' around R) Sh blade since last session. Intermittent mild pains around superior aspect of R) Sh blade going down into R) UL. Nil tingling in last 2 digits of R) hand since last session. Performing updated HEP daily nil issues. AM stiffness ~5-10mins until hot shower. Night pain depending on sleeping position or activity during the day causing frequent WIN. ... ."

1. This was not Mr McCabe's first attendance upon Mr Akgoz after the transport accident. Mr McCabe's first attendance upon Mr Akgoz after the transport accident was on 4 July 2019.[37] That attendance note was not in evidence.

1. Two reports were tendered from Mr Nair, dated 29 April 2016 and 28 October 2019. Mr McCabe was referred to Mr Nair by his GP. He first saw him on 29 April 2016, and subsequently saw him on 28 October 2019.
2. When first seen, Mr Nair assessed the injuries sustained in the fall in February 2016. Mr McCabe reported ongoing mid thoracic pain that did not settle. He had not then been able to return to work.
3. On examination, Mr Nair found as follows:[38]

"He has got limited range of movements coming only short of his knee on forward flexion, which he says because of the pain in his back. Other than that examination of his limbs did not reveal any focal neurological deficit. He does have tender spot in his mid thoracic spine possibly around the T9-T10 area. ... ."

1. Mr Nair noted that an x-ray and MRI scan had not revealed any obvious cause to explain the injury. He opined that it was probably related to a local contusion on the spine that was taking time to heal. He recommended the condition be managed by a pain physician.
2. Mr McCabe was referred back to Mr Nair in October 2019 for assessment of injuries sustained in the transport accident. He stated he had seen him previously for low back issues (this conflicts with the content of the prior report). Mr Nair noted the current presentation was for pain in the medial scapular and mid thoracic region.
3. Mr Nair noted the following history:[39]

"He told me that the pain symptoms he had when he saw me a couple of years ago did take a while to settle but he was able to return back to normal duties. ... ."

1. Mr Nair recommended Mr McCabe continue with conservative treatment. He was "hopeful" the symptoms would gradually improve.

Dr Christopher Woodgate, pain and rehabilitation physician

1. Two reports were tendered from Dr Woodgate, dated 19 December 2022 and 28 October 2024. Dr Woodgate first saw Mr McCabe on 18 August 2020, about a year after the transport accident. He subsequently reviewed him on two further occasions during 2020, on four occasions in 2021 and 2022, and three times in 2023 and 2024.
2. In his first report, dated 19 December 2022, Dr Woodgate noted that prior to the transport accident:

"... Mr McCabe had left knee and neck pain in the setting of previous workplace injuries; however, in spite of this, he was able to keep moving and maintain good function up until his car accident."[40]

1. Dr Woodgate noted that Mr McCabe had previously had a right shoulder arthroscopic repair. Dr Woodgate did not state that he was given a history of prior thoracic and lumbar pain. Further, it is not clear from his report whether he was aware of the nature and extent of Mr McCabe's pre-transport accident restrictions.
2. Mr McCabe reportedly told Dr Woodgate that after the transport accident, he felt some initial soreness. Over the course of several hours, he developed significant pain between his shoulder blades.
3. Dr Woodgate diagnosed "persistent pain ... with complex peripheral and central drivers and a potential facetogenic component".[41] He opined that Mr McCabe was unfit to return to his pre-injury employment, and his incapacity for work was likely to be indefinite. Consistent with the incomplete history he was given, Dr Woodgate further opined:[42]

"I feel that Mr McCabe's thoracic spine pain is a new injury and has a clear temporal relationship with his motor vehicle accident."

1. Dr Woodgate's second report repeated the contents of the earlier report and noted his treatment of Mr McCabe since December 2022. He opined that Mr McCabe:

(a) suffered from "ongoing persistent axial back pain, which is likely a complex combination of nociplastic, nociceptive and neuropathic drivers";[43]

(b) "has no current work capacity and this is likely to be indefinite."[44]

1. A report was tendered from Dr Curtis dated 17 May 2016. Dr Curtis examined Mr McCabe on 17 May 2016. He was asked to consider the injuries and impairment consequences of the incident on 25 February 2016.
2. Dr Curtis noted Mr McCabe fell in the incident, suffering injuries to his entire spine and left knee. He had not worked since the fall. He said:[45]

"The present position is that his spine is slowly improving and his major problem now is at the thoracolumbar junction where he has peripheral radiation symptoms or root pain on the left at approximately T10, T11 and T12 generally following along his lower ribs.

... His current problems relate to his neck and thoracolumbar junction."

1. Dr Curtis relevantly opined that Mr McCabe had aggravated his longstanding pre-existing degenerative pathology in his cervical and thoracolumbar spine. He was of the view that Mr McCabe was unfit to work because of his pain.
2. Notwithstanding that opinion, Mr McCabe was able to return to work on modified duties approximately four months after the February 2016 incident.

Mr David Bergin, musculoskeletal physiotherapist

1. A report was tendered from Mr Bergin dated 17 May 2017. Mr Bergin examined Mr McCabe that day. He was asked to consider the injuries and impairment consequences of the incident on 25 February 2016.
2. Mr Bergin noted that Mr McCabe was unable to work for four months after the February 2016 fall. He then returned to work performing light duties.
3. Mr Bergin noted:[46]

"[Mr McCabe] reports persistent neck pain over the last 16 years which has not changed to any significant degree. The main impairment he describes as reduced cervical mobility and discomfort tolerating any manual work at or above shoulder height.

Today he informs me that sometime past he had a medical panel decision approving 26 physiotherapy visits per year and from this he attends the physiotherapy clinic every fortnight for treatment consisting of mobilisation to the cervical and upper thoracic spine. ...

[Mr McCabe] reports mid thoracic spine pain to occasionally disturb his sleep and is aggravated with lifting or carrying more than 5kg at a time at or above shoulder height though noting he is not required to carry out these activities at work. He states he is adequately able to avoid these activities at home despite living on a 20 acre farm lot, as his sons who live at home carry out all the required manual work.

... When asked if he felt he noticed any significant change in the nature of his thoracic spine pain over the last six months he stated there had been no significant change at all in the level of symptoms in his thoracic spine and his need to take analgesic medication.

... I believe the ongoing symptoms are more likely related to the upper thoracic spine and I feel these findings are more linked to his pre-existing and long standing cervical and upper thoracic condition covered under another claim for which he has been previously receiving physiotherapy treatment. It is my conclusion that the thoracic spine is now no longer an ongoing injury of its own accord and the symptoms and functional restrictions stemming from this relate to the pre-existing cervical and upper thoracic spine condition."

1. A report was tendered from Associate Professor Buzzard dated 28 February 2018. Associate Professor Buzzard examined Mr McCabe on 27 February 2018. He was asked to consider the injuries and impairment consequences of the incident on 25 February 2016.
2. Associate Professor Buzzard noted that in the fall on 25 February 2016, Mr McCabe injured his left knee and mid back. He relevantly diagnosed an aggravation of pre-existing degenerative changes in the mid back. He opined Mr McCabe was limited in relation to his employment capacity, not because of the February 2016 fall, but because of his prior injuries.

1. A report was tendered from Dr Powell dated 19 April 2018. Dr Powell examined Mr McCabe on 9 March 2018. He was asked to consider the injuries and impairment consequences of the incident on 16 January 2001. Notwithstanding this, Dr Powell noted:[47]

"... Mr McCabe had had subsequent injuries to his neck and back in 2007, his right shoulder in 2013 and an injury to his left knee and to his thoracic spine in 2016 but these have not been logged as separate claims and have been rolled into the same WorkCover claim."

1. Dr Powell noted that Mr McCabe had persisting mid-back pain since the fall in February 2016.
2. As to his symptoms in March 2018, Dr Powell noted:[48]

"Mr McCabe describes ongoing thoracic back pain following his most recent injury of 2016. This is described as a soreness that starts at the base of the neck radiating between the shoulder blades. There is a feeling of tightness and stiffness associated with this. ... He attributes his ability to continue working with little time away from work to the maintenance physical therapy that he has.

Mr McCabe is fully self caring in activities of daily living. He is able to drive but finds that his symptoms of thoracic back pain are worsened after driving for more than an hour at a time."

1. Dr Powell concluded that Mr McCabe aggravated his cervicothoracic spine injury in the fall in February 2016 and had persisting symptoms of tightness and pain between his shoulder blades. He added that the home therapy program and fortnightly physiotherapy enabled Mr McCabe to continue his normal hours as a lift and escalator fitter.

1. A Certificate of Opinion and Reasons dated 13 August 2018 were tendered. The Panel comprised Dr Jenny Downes-Brydon, GP, and Mr Gary Speck, orthopaedic surgeon. The Panel examined Mr McCabe on 2 August 2018. The Opinion related to Mr McCabe's mid back and left knee impairment due to the injuries sustained on 25 February 2016.
2. The Panel reported being told:[49]

"... [T]he back pain he experienced as a result of this incident was unlike any back pain he had previously experienced and was completely different to his low back pain of 1991 and to the upper back pain documented as having occurred in 2001 and which persisted until at least 2008.

... [D]espite attending physiotherapy twice a week and being treated with Pilates as well as undertaking exercises in the pool he continued to experience 'middle back pain' and in particular stiffness and reduced range of motion in the area.

The worker told the Panel that he continues to experience middle back pain rating 6 to 7/10 on a daily basis. He said that he has continued to work on modified duties since the incident and has had a day off 'here and there' due to his middle back pain."

1. On examination, the Panel found reduced flexion and extension of the thoracolumbar spine. There was dysmetric range of lateral flexion with the range greater to the left than the right. Similar dysmetric range was noted on rotation.[50]
2. The Panel concluded that Mr McCabe was suffering from persistent thoracolumbar symptoms and dysfunction following a soft tissue injury of the thoracolumbar spine in the setting of degenerative changes of the thoracolumbar spine.[51]

1. Two reports were tendered from Mr Kossmann, dated 25 January 2023 and 26 September 2023. Mr Kossman examined Mr McCabe on 25 January 2023. He noted that he reviewed almost 2,500 pages of documents.
2. Mr Kossman diagnosed the injuries Mr McCabe suffered in the transport accident as an aggravation of pre-existing, symptomatic thoracic and lumbar spondylosis.[52]
3. Mr Kossman noted the following:[53]

"Mr McCabe's medical history is very complicated, and I have listed his musculoskeletal injuries, which he suffered from 2001 onwards. As a result of his work-related injuries, he suffered from an aggravation of cervical, thoracic and lumbar spondylosis. Furthermore, he had a traumatic injury to the right acromioclavicular joint, for which he underwent surgery. Over many years Mr McCabe underwent physiotherapy for his work-related injuries. The treatment for his work-related injuries may have also benefitted the injuries which he suffered in the transport accidents, particularly the second one on 2 July 2019.

Mr McCabe stopped working after the second transport accident of 2 July 2019 due to his ongoing pain issues, which start between the shoulder-blade from T/5 down to the lumbar spine. His pain issues in his thoracic and lumbar spine have had an impact on every aspect of his life, including activities of daily living."

1. In his supplementary report dated 26 September 2023, Mr Kossman opined as follows as to Mr McCabe's work capacity:[54]

"Mr McCabe has no work capacity to return to work as an escalator fitter in part as a result of his pre-existing cervical, thoracic and lumbar spondylosis, and in part due to the injuries, which he suffered in the second transport accident on 2 July 2019 in the form of aggravation oof his pre-existing thoracic and lumbar spondylosis. I estimate that 50 % of his symptoms are caused by his pre-existing thoracic and lumbar spondylosis and 50% of his symptoms are caused by the second transport accident on 2 July 2019."

1. I do not accept this aspect of Mr Kossman's opinion as he does not explain his reasoning for the attribution of incapacity in that manner. Further, such an approach does not assist in the determination of the impairment consequences attributable to the aggravation injury sustained in the transport accident.

1. One report was tendered from Professor Bittar, dated 19 November 2024. Professor Bittar examined Mr McCabe on 19 November 2024.
2. Professor Bittar noted that prior to the transport accident, Mr McCabe "was working full time, carrying out light duties due to preexisting neck and lower back issues".[55] He noted that Mr McCabe's longstanding neck and lower back pain had not changed significantly since the transport accident.[56]
3. Inconsistently, Professor Bittar later noted that prior to the transport accident, Mr McCabe was experiencing left knee, neck and midback pain. Professor Bittar did not identify the cause of, or the nature of any pre-existing condition in Mr McCabe's mid back. Later in his report, Professor Bittar noted "whilst he had preexisting cervical and lumbar spine conditions, he did not have pain in the mid back before this accident".[57]
4. Professor Bittar diagnosed "persistent thoracic back pain due to aggravation of preexisting but asymptomatic thoracic spondylosis."[58]
5. Absent a proper history, Professor Bittar's opinion is of no assistance in identifying the nature of the aggravation injury suffered in the transport accident and the impairment consequences attributable to it.

1. Two reports were tendered from Mr Siu, dated 9 December 2024 and 21 January 2025. Mr Siu examined Mr McCabe on 9 December 2024.
2. Mr Siu was provided with a large quantity of documentation. He noted that many independent medical examiners had considered this "a complex and complicated" case.[59]
3. Mr Siu referred to the fact that Mr McCabe had been to the Medical Panel three times, and had undertaken three pain management courses "and he gets them a little muddled up".[60] He said:[61]

"... It took me a while to sort out what he meant by 'the back' and he indicated it was pain in the upper to midback, in an area between the shoulder blades. ... ."

1. Mr Siu noted that Mr McCabe had not worked since the transport accident, "his reason being that his midback was very sore".[62]
2. Mr Siu's diagnosis was:[63]

"He has injured his neck and on imaging has a significant disc protrusion but because it was associated with a shoulder injury, attention was directed to treating the shoulder with good result. His neck problem seemed to have resolved to some extent, although easily flared up, as following the 2nd motor vehicle accident.

His main complaint, however, is interscapular pain, which I think is more likely to be from the neck than from the thoracic spine. I do not think the road traffic accident in 2019 has contributed to the problems of his low back."

1. Mr Siu opined that it was likely that "the motor vehicle accident has transiently exacerbated a pre-existing cervical spondylosis".[64] He opined thar Mr McCabe was unable to return to work because of "an interscapular problem and a problem with his left knee".[65]
2. In his supplementary report dated 21 January 2025, Mr Siu again noted that Mr McCabe's clinical condition was "incredibly complicated".[66]
3. Mr Siu clarified and explained his previous opinion as follows:[67]

"... A rear-end collision is likely to have some hyperflexion and hyperextension injury, hence I came to the conclusion that the accident had transiently exacerbated the pre-existing cervical spondylosis.

He certainly complained of pain to the physiotherapist and from that point of view he is consistent, ie, he attributes the neck pain to have come on following the motor vehicle accident and, therefore, presumed it is due to the accident. I think the car accident is incidental.

As mentioned, in a rear-end collision there would be some hyperextension and hyperflexion but I note he is unlikely to have suffered a significant impact. Therefore, any aggravation of pre-existing cervical spondylosis would be transient.

In the medical context, 'transient' can take on quite a few implications ... my use of the word 'transient' is that it lasted for a short time ... by 'transient' I mean weeks".

1. It is not clear to me why Mr Sui was of the view that there was unlikely to have been a significant impact in the transport accident, and what he meant by that. Further, he does not explain why any aggravation suffered in such an accident would be transient. I am therefore unable to accept those aspects of Mr Siu's opinion.

1. One report was tendered from Dr Altaf, dated 9 December 2024. Dr Altaf examined Mr McCabe on 3 December 2024.
2. Dr Altaf described the history he was given of prior injuries. He noted that Mr McCabe was working full time prior to the transport accident, with restrictions including limitations on lifting, pushing, pulling and working above head height. Dr Altaf did not record a history of prior thoracic spine pain.
3. Dr Altaf diagnosed an aggravation of previously asymptomatic thoracic spine degeneration, resulting in ongoing thoracic spine dysfunction and chronic pain.[68] He opined that Mr McCabe was unfit to perform any of the duties associated with his pre-injury role. At best, he thought that Mr McCabe had a "theoretical" capacity for sedentary clerical activities, but that would require further assessment.
4. I do not accept Dr Altaf's diagnosis as he did not have the history of the prior symptoms in Mr McCabe's thoracic spine.

1. Five reports were tendered from Dr Slesenger, dated 30 November 2020, 10 December 2020, 5 January 2021, 24 December 2021 and 3 February 2025. Dr Slesenger examined Mr McCabe twice, on 18 November 2020 and 13 January 2025.
2. In his first report dated 30 November 2020, Dr Slesenger noted that prior to the transport accident, Mr McCabe was not required to perform any heavy lifting due to a previous left knee and cervical spine impairment.
3. Mr McCabe told Dr Slesenger about the increase in his medications since the transport accident.[69]
4. Dr Slesenger did not note a history of prior symptoms in Mr McCabe's thoracic spine, although he was provided with imaging of the thoracic and thoracolumbar spine which predated the transport accident. Because of this, he suggested a comprehensive review of Mr McCabe's pre-transport accident records.
5. Dr Slesenger opined that Mr McCabe suffered a thoracic spine soft tissue injury in the transport accident, presenting with chronic thoracic spinal pain, but noted some inconsistencies on presentation. These were, an improved range of cervical and thoracolumbar spinal movements on distraction, and non-myotomal weakness throughout the lower limbs.
6. Dr Slesenger opined that Mr McCabe was fit to return to his pre-injury role with restrictions.
7. In supplementary reports dated 10 December 2020 and 5 January 2021, Dr Slesenger opined as to Mr McCabe's capacity to work in various employment options. The TAC did not pursue this issue in this proceeding,
8. Dr Slesenger was subsequently provided with a summary of additional information about Mr McCabe's prior thoracic symptoms, and asked to provide a supplementary report. Dr Slesenger opined:[70]

"The records indicate that Mr McCabe had a pre-existing thoracic spinal impairment predating the injury and it was likely that these symptoms have been ongoing at the time of the index accident.

It is also likely that he was taking medication, amongst other impairments, for his thoracic spinal impairment.

There is also evidence that Mr McCabe's disclosure of his pre-injury status may not have been comprehensive.

Taking the evidence as a whole, whilst I am satisfied that it is likely that he suffered an aggravation of pre-existing degenerative disease of the thoracic spine, the aggravation appears to have resolved."

1. Dr Slesenger explained the reasoning for his opinion that any aggravation injury to the thoracic spine had resolved as follows:[71]

"There does not appear to be significant change in his presentation before and after the incident. I note, in particular, that there does not appear to be significant change in his use of medication. I anticipate that his chronic back pain would have varied regardless of the injury under consideration. I note that the discharge summary indicates that he already had 'incapacitating thoracic pain', which is likely to have continued regardless of the index accident.

1. Dr Slesenger was referring to material from Dorset Rehabilitation in August 2017.[72]
2. Dr Slesenger did not re-examine Mr McCabe for the purpose of preparation of those supplementary reports. His new conclusion that the aggravation injury to the thoracic spine had resolved was reached on the papers.
3. Dr Slesenger re-examined Mr McCabe in the preparation of his final report dated 3 February 2025. He was provided with a large amount of documentation, including about the prior injuries.
4. Dr Slesenger opined that in the transport accident, Mr McCabe likely suffered an aggravation of pre-existing degenerative disease in his thoracic spine. He was again of the view that it had settled to its pre-injury level. He opined that there were inconsistencies on examination including non-myotomal weakness and an improved range of cervical, thoracic and lumbar spinal movements on distraction. He later said those findings were of limited significance.[73]
5. Dr Slesenger said:[74]

"I am also of the opinion that it is likely that he would suffer deteriorating thoracic spinal pain, regardless of the injury due to the degenerative nature of the pre-existing impairment and the chronicity of his symptoms predating the accident.

With regard to his multiple musculoskeletal symptoms including cervical spine, thoracic spine, lumbar spine and right shoulder, I do not anticipate an improvement in his symptoms and indeed, the symptoms are likely to deteriorate due to the degenerative nature of the underlying condition.

... Prior to the accident, Mr McCabe was working in a supported work environment. ... should he have become detached from his employment at United Lifts, independent of the index accident, I anticipate that he would have struggled to secure employment in an open job market. ...

I also note the description of his symptoms in the physiotherapy records in the lead-up to the injury under consideration and it is difficult to envisage him remaining in work had the injury not occurred."

1. I do not accept Dr Slesenger's opinion that the aggravation injury to Mr McCabe's spine has settled to its pre-accident level as I accept Mr McCabe's account of the increase in his symptoms which has continued. That account is supported by his treating physiotherapist.

1. I find that prior to the transport accident, Mr McCabe was suffering from ongoing pain in his cervical, thoracic and lumbar spine, his left knee and right shoulder. He required daily prescription analgesia and fortnightly physiotherapy. His mobility was impacted, and his capacity to undertake domestic activities and pursue his hobbies was affected. He was able to continue to work full time performing modified duties.
2. Senior Counsel for the TAC submitted that Mr McCabe's capacity to work was deteriorating prior to the transport accident. This was said to be so because:

(a) On 10 April 2019, Mr McCabe was given a written warning;

(b) Mr Akgoz's clinical notes leading up to the transport accident reveal that Mr McCabe was having trouble at work;

(c) Dr Arora's report dated 31 October 2019 referred to a compromised work capacity but made no reference to the transport accident.

1. I find that the warning given to Mr McCabe on 10 April 2019 was for leaving work before the end of his rostered hours. In my view, that does not provide support for the proposition that Mr McCabe's physical capacity to work was deteriorating.
2. I do not accept the submission that the clinical notes of the treating physiotherapist reveal a deteriorating work capacity. I find they demonstrate Mr McCabe's commitment to continuing to work in the face of ongoing symptoms.
3. In the absence of all relevant notes of the treating physiotherapist, I draw no conclusions from the lack of reference to the transport accident in the clinical note of 18 July 2019.
4. Dr Arora's report dated 31 October 2019 provided his opinion regarding the injuries and consequences of the incident in February 2016. There was no mention of the transport accident or its consequences. He opined that Mr McCabe had the capacity to work full time with restrictions by reason of the work-related injuries. He said such capacity would continue for the foreseeable future. I do not accept that this report supports the contention that Mr McCabe's capacity to work was deteriorating at the time of the transport accident.
5. I find that absent the transport accident, Mr McCabe would likely have continued to work full time performing modified duties as he had done for many years.

What injury was caused to McCabe's spine in the transport accident?

1. Mr McCabe deposed that immediately prior to the transport accident, he was stationary and leaning slightly forward in his seat, attempting a head check. He was wearing his seatbelt. His vehicle was struck from behind and he was thrown back into his seat.[75]
2. During cross-examination, it was put to Mr McCabe that the accident occurred in a 40-kilometre per hour zone, and the force with which he was struck was less than 40 kilometres per hour. Mr McCabe believed the other vehicle was travelling at 50-60 kilometres per hour immediately prior to the collision, but accepted that he could not be sure.[76] He rejected the proposition that the vehicle he was driving had "virtually no damage". Mr McCabe said, and I accept, that the vehicle he was driving was shunted about a car's length and required repair, including a replacement towbar.
3. Senior Counsel for the TAC submitted this was a low-speed collision in a 40-kilometre per hour zone.[77] Whilst not explicitly put this way, the contention appeared to be deployed in support of the submission that any aggravation injury Mr McCabe suffered to his spine was minor and transient.

1. Senior Counsel for the TAC submitted that in his affidavits, the injury relied upon was to Mr McCabe's upper back, and it was not appropriate for the plaintiff to rely upon the spine as the impaired body function. I do not accept that submission. The spine is a single body function for the purpose of s93(17) of the Act.[78]
2. There was some controversy on the medical evidence as to whether the aggravation injury sustained in the transport accident was to the cervical spine, the thoracic spine and/or the cervicothoracic spine. In my view, nothing turns on the resolution of that controversy in this application. In each instance, the injury is an aggravation of pre-existing symptomatic degenerative change. It is the extent of the aggravation injury which must be established, together with the long-term impairment consequences which flow from the aggravation.
3. I bear in mind that this is a 'gateway' proceeding conducted with no oral evidence other than that of Mr McCabe. The evidence adduced on this issue is more limited in scope than might be adduced in a full trial.[79] In that context, I accept Mr McCabe's account of the nature of the collision and the damage to the vehicle he was driving. I find this was a collision of some significance.
4. Mr McCabe had pain in his thoracic spine prior to the transport accident but I accept the severity of the pain increased as a result of the transport accident. I accept Mr McCabe's evidence that within hours of the transport accident, he developed significant pain between his shoulder blades. That increased pain has persisted.
5. I find that Mr McCabe suffered an aggravation injury to his spine in the transport accident. This was an aggravation of pre-existing symptomatic spondylosis of his spine.

What are the long-term impairment consequences of the injury?

1. Mr McCabe relied upon an affidavit sworn by him on 8 September 2023, and a further affidavit sworn by him on 1 April 2025.
2. Mr McCabe deposed that:

(a) he experiences constant pain in his upper back between the shoulder blades down to his lumbar spine, and at times, shooting pain up into his neck;

(b) he struggles to bend, lift, twist, push, pull, and to sit or stand for prolonged periods;

(c) he has been unable to work since the transport accident by reason of the increased pain in his thoracic spine;

(d) his increased pain and inability to work has caused low mood, sadness and despair.

1. Mr McCabe also relied upon an affidavit affirmed by his son, Matthew McCabe, on 17 April 2025. The TAC did not seek to cross-examine him.
2. Matthew McCabe relevantly deposed that:

(a) he is employed full time by United Lift Services as a lift technician. He has worked in that capacity since 2014. Prior to the transport accident, he would work with his father on jobs. His father played more of a supervisory role, using his expertise to diagnose the fault with particular equipment, and knowing how to fix it. He performed the heavier aspects of the job;

(b) it broke his father's heart when he realised that he was unable to return to work after the transport accident;

(c) since the transport accident, his father has had lowered mood, and lacks purpose and motivation;

(d) he has built a home on his father's property to be able to assist him.

1. As this is a case involving an aggravation injury, I am required to determine the extent of the impairment of the body function of the spine before and after the transport accident.[80]
2. Senior Counsel for the plaintiff focussed upon Mr McCabe's increased pain, increased medication use, and his incapacity for work as the primary impairment consequences of the transport accident-related aggravation injury.
3. Senior Counsel for the TAC submitted if there was a continuing aggravation injury, Mr McCabe had failed to satisfy his onus to separate the impairment consequences referable to that aggravation injury. In particular, it was submitted that Mr McCabe's incapacity for work was due to his pre-existing spinal impairment.
4. I find that following the transport accident, Mr McCabe has experienced more severe pain between his shoulder blades, and that pain is constant. His use of analgesia has increased. I prefer the opinions of the treating physiotherapist, and GP, that Mr McCabe suffered an aggravation of pre-existing symptomatic spondylosis which persists and is long term. That is also Mr Kossman's opinion. I prefer those opinions to the opinions of Mr Siu and Dr Slesenger, whose opinions do not accord with the facts as I have found them.
5. I accept that since the transport accident, Mr McCabe has not been able to work in any capacity due to the aggravation injury to his spine sustained in the transport accident. The aggravation injury and impairment are long term.

Are the pain and suffering and/or pecuniary disadvantage consequences "serious"?

1. Given my finding that the aggravation injury suffered by Mr McCabe in the transport accident caused Mr McCabe to be unfit to work in any capacity, in my view, in this case that impairment alone is sufficient to justify a finding that the pecuniary disadvantage consequences satisfy the statutory threshold. Taken with the significant increase in pain, the impairment consequences caused by the transport accident-related aggravation injury comfortably satisfy the statutory threshold.

1. Mr McCabe is granted leave to bring a common law proceeding in respect of the injuries he suffered in the transport accident on 2 July 2019.
2. I will hear the parties on the issue of costs.

[1] Humphries and Anor v Poljak [1992] VicRp 58; [1992] 2 VR 129 at 140

[2] At this point, Spencer Street becomes Dynon Road

[15] PCB 206, PCB 208

[17] PCB 202, PCB 204

[78] Transport Accident Commission v Zepic [2013] VSCA 232

[79] Findlay v Transport Accident Commission [2025] VSCA 126

[80] Petkovski v Galletti [1994] VicRp 32; [1994] 1 VR 436