Plaintiff v Defendants

Plaintiff v Defendants - [2010] VSC 242 - VSC 2010 case summary — Zoe

[37]

The opinion of Mr Barrett is based on the proposition that that (sic):
- the [worker] was not suffering from disc derangement as of 11 May 1995;
- the incident on 11 May 1995 was responsible for the development of a disc protrusion at L4/5.
The [employer] submits that the facts are also open to the [scil, view] that:
- the [worker] may have sustained some temporary aggravation of spinal degeneration and/or disc derangement at L4/5 on 11 May 1995;
- the actual prolapse or protrusion occurred as a result of the incident at the golf course in January 1999;
- subsequent surgery was due to a recurrence of those symptoms in May 1999;
- similarly, symptoms in 2005 were related to the 1999 surgery.
The [employer] maintains that it is artificial to ignore the [worker's] circumstances and employment after 12 November 1997. On the [worker's] history there have been specific episodes after that date which have impacted on his back condition.
If the Medical Panel is of this opinion, it is contended that employment after 12 November 1997 has significantly contributed to the [worker's] overall permanent disability. It is further contended that the [worker's] entitlement to compensation, if any, in those circumstances is pursuant to section 98C and not section 98.
The [employer] maintains that if the Medical Panel determine that the [worker] does have a compensable injury to his back and/or right leg as a result of his employment with the [employer], the Medical Panel have to further determine:
- for the purpose of compensation pursuant to Section 98 of the Accident Compensation Act, whether employment prior to 12 November 1997 has been a significant contributing factor to a permanent impairment to the back and/or a permanent loss of use to the right leg; and, if so
- whether employment and/or other episodes after 12 November 1997 have also been a significant contributing factor to a permanent impairment to the back and/or a permanent loss of use to the right leg; and, if so;
- make an apportionment between periods pre and post 12 November 1997.
However, the [employer's] primary contention is that employment prior to 12 November 1997 has not resulted in any permanent impairment to the back or permanent loss of use to the right leg."

[52]

The worker described to the Panel his pre-injury duties as a security guard, which he commenced on 23.10.1990 and which involved performing gatehouse duties on dayshift and patrol duties on afternoon and nightshift, at a television station.

The Panel noted the worker's past history of an episode of low back pain on 28.11.1994 for which he consulted a physiotherapist on 28.11.1994 and a general practitioner on 30.11.1994.

He said he recovered from this episode. The Panel noted that a CT-scan was undertaken in April 1995, which was reported to show a mild L4-5 disc bulge.

The worker told the Panel that he suffered an inversion injury to the right ankle and also injured his back on 11.5.1995, when he slipped on a concrete curb and fell.

He said he was transported by ambulance to a metropolitan private hospital. X-rays were undertaken, which did not demonstrate a fracture. He said that he consulted an orthopaedic surgeon, was treated by immobilisation in plaster for four to six weeks, during which time he was non-weight-bearing on crutches.

He said he developed lower back pain and plain X-rays of the lumbar spine were undertaken on 19.5.1995.

The Panel noted that it is agreed that the worker suffered a 'severe ankle strain' injury, with an injury date of 11.5.1995 for which a claim for compensation, dated 19.5.1995, was accepted.

He said that after the plaster was removed, he had difficulty standing on his right leg and had problems with walking, due to his low back pain and right leg pain. He was treated with an epidural injection.

He said he was referred for an opinion to a rheumatologist and subsequently commenced a spinal rehabilitation program at a private rehabilitation hospital in June/July 1995. He said that there was a marked improvement in his condition with this treatment, such that he was able to walk normally, but he said he was still complained [sic] of persisting lower back pain.

He said he returned to work in his normal duties in August 1995 and continued working in that capacity for the next four years. The Panel noted that during this period, he did not consult his general practitioner or any specialists, in relation to any back ongoing complaints [sic].

The Panel noted that the worker suffered an aggravation of his back condition in January 1999, whilst playing golf, with pain radiating to the whole right leg, with a further recurrence of these symptoms in May 1999, whilst attempting to get up from a couch.

He said he consulted his general practitioner regarding these symptoms on 28.6.1999. A CT-scan was undertaken on 29.6.1999, with a disc prolapse being diagnosed and he was certified unfit for work in July 1999.

The Panel also noted that it is agreed that the worker suffered a 'disc prolapse' injury, for which a claim for compensation, dated 9.7.1999 was accepted.

He said he was referred to [sic] an opinion to another orthopaedic surgeon, whom he consulted on 7.7.1999. He said that surgery was recommended and he underwent a decompressive laminectomy on 29.7.1999.

He said he made a good recovery following this procedure and he returned to work on 6.9.1999.

He said he ceased working for his employer in late 2000 and subsequently obtained employment as a fleet and security manager, working directly for the television station.

He said he suffered a further aggravation of his back condition in January 2005, whilst on holiday, when he was camping in a caravan on the Murray River. He said he returned to work, but his symptoms took several weeks to settle.

He said he suffered a further aggravation of his back condition on 18.7.05, after opening a filing cabinet in his office. He said he was initially taken by ambulance to a metropolitan public hospital on 19.7.2005. Plain X-rays were undertaken on that day.

He said he was reviewed by his treating general practitioner on 20.7.2005. A CT-scan was undertaken on 20.7.2005 and he was certified unfit for work for three days, but subsequently returned to work. He was referred back to his treating orthopaedic surgeon, whom he consulted on 1.9.2005 for review. An MRI was undertaken on 7.9.2005. Further surgery was not recommended.

A further claim for compensation for 'pain in the left buttock and leg' was initially rejected, but was subsequently accepted.

He said he is still working as a fleet and security manager.

He currently complains of intermittent mechanical low back pain, related to certain movements, such as extension and lateral flexion. He also complains of intermittent pain in the right leg and numbness in the right great toe and second toe. He reports pain in the right ankle and right lower leg, which is generally only present on cold days in winter and the right ankle sometimes swells up.

On physical examination, the Panel noted that the worker walked normally and was able to stand on his heels and toes. There was a 19cm lumbar laminectomy scar, with no tenderness to palpation over the lower lumbar spine. Range of motion of the lumbar spine was mildly restricted in all directions. Neurological examination of both lower limbs revealed normal reflexes and power, with decreased sensation in the right L5 and S1 dermatomes, consistent with a persistent right radiculopathy. Examination of the right ankle revealed mild tenderness over the medial aspect of the right ankle, with a normal range of motion of the right ankle and right sub-talar joint and no joint swelling.

Medical imaging included: plain X-rays of the lumbar spine dated 19.5.2005, which showed mild disc space narrowing at L3-4 and L4-5; plain X-rays of the right ankle dated 26.5.1995, which were normal; a nuclear bone scan dated 30.5.1995, which showed a mild increase in uptake in the right ankle in the early perfusion phase, consistent with a sprain, but not a fracture; and a CT-scan of the lumbar spine dated 29.6.1999, which showed a right-sided L4-5 disc prolapse and a mild disc bulge at L5-S1 and an MRI dated 7.9.2005, which showed a cystic disc bulge at L4-5, which [sic] some lateral recess stenosis.

The Panel concluded that the worker suffered from an aggravation of lumbar spondylosis and a sprain of the lateral ligament of the right ankle, as a consequence of the incident occurring on 11.5.1995.

The Panel concluded that the worker may have had persisting low back pain, but made a substantial recovery from his low back condition, such that he was able to return to his normal duties and did not seek any medical attention for four years.

The Panel concluded that the worker suffered a further injury to the back in 1999, resulting in an L4-5 disc prolapse, which was treated with an L4-5 laminectomy on 29.7.1999.

The Panel concluded that the worker currently suffers from persisting low back dysfunction, primarily as a consequence of the L4-5 disc prolapse in 1999 and also suffers mild persisting dysfunction of the right ankle, relevant to the alleged right ankle injury occurring on 11.5.1995.

The Panel assessed the level of impairment of the worker's back in accordance with Section 91 of the Accident Compensation Act 1985, using the methods of the AMA Guides to the Evaluation of Permanent Impairment (second edition).

The Panel considered the appropriate method to assess impairment of the worker's thoraco-lumbar spine was by reference to abnormal range of motion in accordance with Tables 50-52 of Chapter One in combination with the impairment assessed pursuant to Tables 53B of Chapter One.

The Panel assessed impairment due to normal range of motion as follows. The Panel used a goniometer to assess the range of motion.

[53]

The Panel assessed an 11% whole person impairment due to abnormal range of motion of the thoraco-lumbar spine. The Panel also included an additional whole person impairment of 5% for disc derangement with residuals in accordance with Table 53B of Chapter One.

Using the Combined Values Chart results in a whole person impairment of 15% attributable to the worker's current back condition.

The Panel noted the submissions provided with the referral as to the linkage between the injury which occurred on 11.5.1995 and the worker's current condition.

The Panel noted that a CT-scan undertaken in April 1995 was reported to show no evidence of disc prolapse and that following the injury on 11.5.1995, there were no symptoms of sciatica and no investigations for sciatica were undertaken by the worker's treating orthopaedic surgeon suggesting that a disc prolapse was not suspected at that time.

Following the 1999 incidents however, a CT-scan of the lumbar spine dated 29.6.1999, showed a right-sided L4-5 disc prolapse and mild disc bulge at L5-S1.

The history shows the worker's back condition to have been quiescent during the intervening four-year period, during which time the worker undertook his normal duties and sought no medical treatment from his general practitioner.

The Panel concluded that while the worker's current back condition includes some direct effects of the worker's back injury, which occurred on 11.5.1995 most of the effects arise from the events occurring in 1999.

The Panel concluded that none of the other 'specific episodes after that date [12 November 1997]' referred to by the Defendant in its submission are significant to the current condition.

The Panel concluded that the most significant event is that described as occurring in January 1999 where the worker was playing golf. There is nothing in the history, which suggests that this event (or for that matter the recurrence in May 1999 when the worker was getting out of bed) are related to 'employment after 12 November 1997' as submitted by the Defendant.

It is these events in 1999 which the Panel concluded are the most significant in the history and which resulted in the L4-5 disc prolapse (as demonstrated on CT-scan undertaken on 29.6.1999), and which was treated by lumbar laminectomy.

The Panel therefore concluded that in assessing the impairment attributable to the worker's injury on 11.5.1995, it is not appropriate to apportion the worker's current whole person impairment to take account of the effects of employment on or after 12 November 1997. Taking into account the reduction in the worker's capacities and potential in the industrial environment and the effects on the worker's activities of daily living as a result of the intermittent symptoms in the right ankle, the Panel concluded that the worker has a permanent partial loss of use of the right leg of 5%, for industrial purposes."

[77]

The question of what degree of impairment is attributable to what injury is a question of fact, not law;[17]
The Panel's answers to questions 1 and 2 in its certificate of opinion and its detailed 7 pages of reasons show that the Panel was alive to its task;
The Panel found that the worker suffered an injury on 11 May 1995 which resulted in a "back condition" that the Panel described in its reasons (namely, as "aggravation of lumbar spondylosis"). The Panel concluded that the worker " ... may have had persisting low back pain, but made a substantial recovery from his low back condition" and that the back condition was "quiescent" until "these events in 1999" resulted in a disc prolapse;
Accordingly, it is clear that the Panel concluded that the worker did not make a complete recovery from the 11 May 1995 injury. A "substantial" recovery is not a complete recovery. The Panel paid attention to later events and circumstances, saying that the worker's current back dysfunction was "primarily" as a consequence of the 1999 injury and that "most of the effects arise from the events occurring in 1999". However, of great moment, the Panel also concluded that "... the worker's current back condition includes some direct effects of the worker's back injury, which occurred on 11.5.1995 ... ".
The Panel apparently had no difficulty with the description of the alleged injury of 11 May 1995 as set out in question 1, namely "injury to the back with disc prolapse at L 4/5 level". In answering question 1, the Panel stated, in effect, that the nature of the worker's (current) medical condition relevant to that injury was that the worker was suffering from an "aggravation of lumbar spondylosis". The employer has not challenged that answer. It establishes that the Panel saw the 1999 golfing incident and the disc prolapse as having merely worsened the worker's original medical condition ("aggravation of lumbar spondylosis") referable to the 1995 injury.
As the employer's submissions to the Panel disclose, each of the worker's claims for weekly payments in 1999 and 2005 referred to the May 1995 injury and each was ultimately accepted. It would have been open to the Panel to regard these as admissions by or on behalf of the employer in accordance with Ansett v Taylor[18].
It was open to the Panel to find, as it did, that the injury on 11 May 1995 was a cause of the worker's current back condition. That being so, there was no need for the Panel to "apportion" between the various other competing events which had also made a material contribution to (or were 'a cause of') the worker's condition;
Having made its findings concerning the 11 May 1995 injury, the Panel was correct to then further consider whether "employment on or after 12 November 1997" was any cause of the worker's current back condition. In so doing, the Panel was clearly alive to the separate issue as to whether there was any potential overlap with s 98C of the Act which provides for separate lump sum compensation for injuries referable to employment on or after 12 November 1997.
If the worker's back condition was attributable to the 1995 back injury, it remained so notwithstanding other causal influences or factors, which, strictly, became irrelevant. The Panel's findings, however show that the Panel -

[82]

38 Putting aside for the moment what the parties had put to the Panel, there was no significant disagreement before me as to the proper interpretation of the Act. Both parties were represented before me by senior and junior counsel and solicitors all with extensive experience in accident compensation matters. Neither side was aware of any authority decided directly on the question of the nature of the link that needs to be shown between "injury" and "impairment of the back" for the purposes of a claim under ss 98 and 98A of the Act. Nor have my own researches revealed any such authority. However the parties proceeded on the basis that the corresponding provisions of the Transport Accident Act 1986 considered in Gennimatas v Transport Accident Commission[25] are sufficiently analogous to warrant the transposition to the present context of the conclusion of Ashley J in that case that, under that Act, it is sufficient if the injury in question was, on the common sense test of causation, a cause of the assessed degree of impairment. In Gennimatas,[26] Ashley J said that workers compensation legislation provides a "very imperfect analogy" with the Transport Accident Act 1986, but nevertheless his Honour went on to apply by analogy certain principles of workers compensation law. Further, as senior counsel for the worker points out, in Grech v Orica Australia Pty Ltd[27] the Court of Appeal took a comparable approach to the relationship between compensable injury and its consequences for the purposes of determining whether the consequences amounted to "serious injury" within the meaning of s 134AB(16)(b) of the Accident Compensation Act 1985. Indeed, in Grech[28] Ashley JA observed that the Accident Compensation Act 1985 generally, as with its predecessors, "contemplates that a consequence may have a multiplicity of causes, including a multiplicity of compensable injuries". Accordingly, I propose to accept the common position of the parties in relation to causation and to proceed on the basis that it is sufficient if the injury in question is a cause of the relevant degree of impairment.[29]

[88]

44 With respect, this situation may well have been brought about by the language of the parties' written submissions to the Panel, and especially by that of the employer's submission. The employer submitted to the Panel, in paragraph 3, that the worker was "attributing that any such disability has arisen as a direct result of a fall on 11 May 1995".[34] The use of the word "direct" was unfortunate. The worker had not used that word in his submissions. Nor had it been necessary for the worker to establish that his impairment had arisen as a "direct result" of his fall on 11 May 1995. An indirect link would have been sufficient, provided that the fall at work could be described as a cause of the relevant impairment. Paragraph 5, which followed shortly after the reference to "direct result", also had a tendency to mislead the Panel in the same way. Paragraph 6 may have been literally true, in that an "injury"[35] to the worker's back after 12 November 1997 could not be included in any assessment, but this paragraph would have been more helpful to the Panel had the employer distinguished between "injury" and "impairment". In paragraph 15, the employer maintained that, if the Panel determined that the worker had a compensable injury to his back as a result of employment with the employer, the Panel was "required" to further determine whether employment prior to 12 November 1997 had been a "significant contributing factor" to "a" permanent impairment to the back; and, if so, to further determine whether employment and/or other episodes after 12 November 1997 had also been a "significant contributing factor" to "a" permanent impairment to the back; and, if so, to make an apportionment between periods pre and post 12 November 1997. Paragraph 15 was inaccurate in several respects. It will suffice to mention some of them. Given compensable injury suffered before 12 November 1997, there was no occasion to consider whether employment before 12 November 1997 (or the compensable injury itself) was a "significant contributing factor" to permanent impairment. No such test was posited by the relevant provisions of the Act in relation to the link between "injury" and "impairment". Nor was there any occasion to consider whether events after 12 November 1997 had also been a "significant contributing factor". Much less was the Panel "required" to do those things. Nor was the Panel "required" to make an apportionment between the two periods. If the Panel were to find that an employment-related, post-12 November 1997 injury had contributed to the impairment, it might have had a discretion to apportion the impairment between the two periods in order to take account of the operation of s 98C as from 12 November 1997.[36] But if the Panel were not to so find (and it did not) no question of apportionment would arise. No question of apportionment (as distinct from possible exclusion as to part) could have arisen in relation to any injury caused by the golfing incident.

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Judgment (131 paragraphs)

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Legislation Cited (7)

Cases Cited (11)