IN THE MAGISTRATES COURT OF VICTORIA



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|IN THE MAGISTRATES’ COURT OF VICTORIA | |

AT WARRNAMBOOL

WORKCOVER DIVISION

Case No. A11856024

|RICHARD HART |Plaintiff |

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|v | |

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|PORTLAND ALUMINIUM |Defendant |

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|MAGISTRATE: |P. LAURITSEN |

|WHERE HELD: |MELBOURNE |

|DATE OF DECISION: |14 SEPTEMBER 2011 |

|CASE MAY BE CITED AS: |HART v PORTLAND ALUMINIUM |

REASONS FOR DECISION

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Catchwords: Accident Compensation Act 1985, ss 5(1), 82(1), 82(2C), 98C, 135A(18) – lower back injury – compromise of claim – injury arising subsequent to compromise – issue of entitlement to compensation – injury arising in the course of employment – nature of injury, whether simpliciter or extended.

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|APPEARANCES: |Counsel |Solicitors |

|For the Plaintiff | |Stringer Clark |

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|For the Defendant | |Hunt & Hunt |

HIS HONOUR:

Introduction

During his employment with Portland Aluminium, Richard Hart injured his lower back. In 2002, he compromised his claim for damages relating to those injuries. He continued working for the defendant until October 2009. Subsequently, he claimed compensation for weekly payments and a lump sum. The defendant rejected both claims. He raises both claims in this proceeding. There is only one real issue. Does s 135A(18) of the Accident Compensation Act 1985 (the Act) prevent these claims? Hart says not. He asserts that following the compromise he sustained another injury to his back, whether simpliciter or extended.

Concerning the weekly payments claim, there is no dispute that Hart has no current work capacity.

S 135A(18) provides:

If judgment is obtained, or a compromise or settlement made in proceedings referred to in subsection (1) in respect of an injury, the Authority, the employer or self-insurer is not liable –

a) where pecuniary loss damages are awarded, to pay weekly payments in respect of the injury; or

b) where pain and suffering damages are awarded, to make payments under section 98 or 98A in respect of the injury.

Circumstances

In 1987, he started with the defendant as a pot room supervisor. The defendant operates an aluminium smelter. In 1991 and 1994, he sustained injuries to his lower back. Both caused absences from work. The latter was more serious than the former. It left him with low back pain and pain in his left buttock and leg. After a while, his job changed to a process auditor. After a further 12 months, his job changed again to process facilitator.

On 5 April 1994, CT scans revealed of Hart’s L4-5 disc[1]:

“At the L4-5 level there is a very slight bulging of the disc posteriorly which tends to be slightly more marked towards the right side of the canal. The disc prolapse just contacts the anterior surface of the thecal sac and tends to fill in the antero-lateral angle of the spinal canal on the right.”

1995

On 7 April, MRI scans showed degeneration of the lowest four lumbar discs and a moderately large prolapse at L2-3. It occupied the midline and the left parasagittal region. It extruded inferiorly behind the L3 intervertebral body. The prolapse filled a large amount of the left lateral recess containing the left L3 nerve root. The L4-5 disc was described:

“There is some degenerative decreased signal within the disc and again mild annulus bulging giving rise to mild bilateral foraminal stenosis. This is mainly caused by the facet joint hypertrophy. There is again a small annular tear posteriorly.”

1998

In mid-January, Hart injured his back while lifting heavy weights at work. He continued working, which aggravated his condition. He ceased work on 23 February after sustaining injuries in a motor vehicle accident. He did not return to work for three months. His injuries were to shoulder, neck and left heel. Medical opinion is unanimous that this accident had little effect on the state of his back.

2000

In 2000, the defendant established a central planning area. Hart and another employee established the area. Hart became a manufacturing co-ordinator. He described his duties in these terms[2]:

“My current role is just as a desk job. It is a central planning role to check a data base and create a schedule for all the contractors working on site. It is totally involved with documents.”

Nevertheless, his symptoms continued[3]:

“My back pain is now constant. The left buttock pain is there most days. At times I get left leg pain travelling halfway down to my hamstring”.

Also in 2000, Hart commenced proceedings in the County Court against Portland Smelter Services Ltd seeking damages. In a document entitled “Prescribed Section 135A Form of Application”[4], he described the 1994 incident in great detail and the injuries sustained in these terms:

“Tenderness in the mid lumbar region and in the low back. Loss of movement. Restriction of the thoraco lumbar spine in flexion and extension with pain radiating to the right iliac crest region. Prolapsed disc at L2-3. Loss of signal and bulging at L3-4. L4-5 and L5-S1. Left leg pain in the posterior aspect of the thigh. Generalised hyporeflexia of both legs.”

On 8 March, he swore an affidavit in support of his claim. At paragraph 8, he deposes:

“Whilst I have good days and bad days, I seem to have fairly constant lower back pain. I still get left buttock and leg pain which is quite intense and seems always to be present.”

Between 2000 and 2006, Hart was a scheduler and manufacturing co-ordinator and Mark Sherwood supervised him. Essentially, each was a desk job. From 2006, Sherwood saw him less frequently and then only about the smelter. He never saw him do anything more physical than walking.

2001

On 30 May, Hart did not see a speed hump and jarred his back while walking over it. He was absent from work, returning in late June on limited hours. His hours gradually increased.

By December, his back pain was constant with left buttock pain present most days. At times, he experienced left leg pain travelling to his hamstring[5].

On 21 December, MRI scans of the lumbar spine were performed. They revealed only minor age related disc desiccation and minor degeneration at L2-3, L3-4, L4-5 and L5-S1. There was no evidence of any disc protrusion.

2002

On 22 March, Hart signed a release. The other party to the release is described as “Portland Smelter Services Pty Ltd”. Despite the wayward description of the defendant in this and the County Court proceeding, it is common ground that the defendant in this proceeding is the same entity as that sued in the County Court proceeding.

2006

In about 2006, there was a major restructure in certain areas of the defendant’s business. As a result, Hart started in a new position called “maintenance reliability specialist”. This was not purely an office-based job. He needed to go into the field and inspect equipment. It involved some lifting of covers. It involved walking. For example, he walked along sections of the conveyor belt between the port and ship. There was some climbing, up to 3 or 4 storeys.

Between 2006 and 2009, Peter Schwartz was Hart’s supervisor. For one of those years, Hart was a scheduler. He saw Hart daily while he was a reliability co-ordinator. He considered about 90% of Hart’s duties were office-based. The remainder involved walking to places where equipment was located, inspecting the equipment and re-inspecting after repairs.

Schwartz was conscious of Hart’s restrictions, whether through medical certificates or simply watching him. He always walked with a limp. Schwartz discussed with him what tasks he could or could not do.

Although Schwartz was aware of the nature of Hart’s duties outside the office, he did not know the manner in which he discharged them. Presently, Schwartz does part of Hart’s role. One of Hart’s duties was to inspect the perimeter fence and arrange any necessary repairs. Schwartz was unaware of the frequency of inspections. Another duty was to inspect the interior of the pump house. There was a pit under the nearby water tower. It required inspection. However, there was no need for Hart to enter the pit. A plumber inspected it. Although there was a large ladder beside the water tower, there was no need for Hart to climb it. Similarly, there was no need for Hart to climb stairs in the cooling tower.

2007

During 2007, Hart took another position following reclassification of his former position at a lower salary. Since he wanted to maintain his salary level, he took the job of “plant services co-ordinator”. It involved the inspection of site assets. Despite the position description[6], this job was more physical than his previous job. For the purposes of this proceeding, the more significant parts of his duties were:

a) two consecutive morning meetings;

b) daily visits to the compressor house because of its importance as a piece of equipment. The compressor house has a number of levels. He reached levels by climbing a ladder;

c) inspecting the perimeter fence more than twice per month for damage. If the damage was low down, he would squat or bend to inspect it. This fence defines the perimeter of the defendant’s property at Portland. Its length is about 12 kilometres. A person can access most of it by path or road. If by road, then Hart would drive there. However, in some areas it reached after travelling relatively short distances over rough, undulating ground. The longest of these distances was about 150 metres;

d) two or three times per week, he visited the pump house. He would check for water leaks. Valves were situated below ground level;

e) visiting the contractors’ complex on the south-eastern section of the defendant’s site to inspect the equipment stored there. At one stage, he carried a box of keys to use in the complex. However, he found that painful.

In the year to August 2008, his back pain gradually worsened and he experienced pain and numbness in his right leg to the toes. He said there were specific incidents but nothing “catastrophic”. He spoke of the lifting by hand of a steel cover, weighing 20 to 30 kgs, from a position about two feet off the ground. He did not report this incident or any other despite a corporate culture of encouraging reporting and his long history of reporting.

2008

In about July, Hart returned from home from his day’s work with severe back pain. As was his usual practice, he lay down on the floor and placed his legs on a kitchen chair. This gave him relief. As he got up, he experienced pain in his right leg and weakness in his right big toe. This was a new area of pain and was more intense than the pain he had previously suffered. He attended his local general practitioner, Dr H.W. Reiger. On 18 July, a CT scan revealed the presence of L4-5 postero right sided prolapse with a moderately narrowed spinal canal at that level.

On 18 July, Hart drafted a document setting out the duties of a plant services co-ordinator. Exhibit 4 is part of that document. In drafting this document, Hart used the description of his previous position of manufacturing co-ordinator. It did not contain a full description of his duties. On paper, the activities are desk-bound except:

“Contributes to a safe working environment for all personnel by identifying and correcting hazards, conducting risk assessments, review of equipment isolation and lock-out procedures, developing, reviewing and following SWI’s, and by adhering to all Plant policies and procedures concerning OH&S.”

Dr Reiger referred Hart to Murray Grave, a musculoskeletal physician. He saw him on 15 September. Hart’s complaints were left and right leg pain. Grave referred him to a neurosurgeon, Tiew Han. On 28 September, MRI scans revealed, among other things[7]:

a) mild desiccation of the L2-3 disc with no discrete disc protrusion; and

b) right L4-5 paracentral disc extrusion with disc material extending down behind the L5 vertical body with right S1 nerve root displacement.

On 28 November, Han performed a right sided L4-5 discectomy and spinal rhizolysis. He found[8] – “a herniated disc without (?) any sequestrated fragment at this level [L4-5]. The discectomy was performed and internal decompression was performed. The L5 nerve root was noted to be free…”

2009

On 11 January, Hart lodged a claim for compensation. He described the occurrence of his injury (L4-5 prolapse) in these terms – “Gradual process due to work requirements just slowly worsening”. Given that description, it is somewhat surprising that he nominated 7 August 2009 as the date on which the injury occurred. The CT scan was taken on 18 July and that must have been in response to the chair incident.

This claim was rejected.

On 29 March, Hart returned to work at planned services for six hours daily and continued until October before the pain was too much and he stopped working.

2010

On 25 February, MRI scans revealed[9]:

“Some minor enhancing scar tissue at the right lateral recess and right side of the thecal sac at L4/5. This lies adjacent to but does not obviously encase the budding L5 nerve root.

Minor broad based disc bulging at L2/3 which is slightly more prominent than on the previous study however there is no foraminal or central canal narrowing at any level identified.”

On 28 August, the defendant terminated Hart’s employment.

2011

Hart’s back pain and right sided symptoms persists. He sees his general practitioner, A. Stephanson, monthly. He now uses a walking stick. He has some hearing loss and his right eye is not good, as he puts it. Regularly, he takes strong pain-killing medication (Endone, Panadeine Forte and Endep). He has physiotherapy twice a week and hydrotherapy once a week.

Plainly, Hart has no current work capacity and the defendant does not dispute that finding.

Medical evidence

Dooley

Michael Dooley is an orthopaedic surgeon. He has examined Hart on five occasions between 22 September 1998 and 7 October 2010. On the first occasion, Dooley opined that the 1991 incident aggravated the degenerative disc disease of Hart’s lumbar spine with the 1994 incident causing a prolapse at L2-3. His symptoms of lumbar spine and left thigh pain were due to the underlying disc degeneration and the effects of the 1994 incident. The 1998 motor vehicle accident may have mildly aggravated the lumbar spine symptoms.

Dooley explained some aspects of disc prolapses[10]:

“…disc prolapses occur within degenerating discs. In general there is acute lumbar pain and there may be associated lower limb pain secondary to nerve root irritation…In general the intensity of symptoms reduces after a six to eight week period. Following this patients usually note improvement in their pain although there will be residual aching especially with heavy impact activity. Intermittent lumbar pain continues relating to the degenerating disc….”

Dooley re-examined Hart on 1 April 1999[11]. He took a history of the February 1998 motor vehicle accident. Among other things, Hart told him of his lumbar back pain and pain in the left hamstring region and in the right groin. Dooley considered Hart sustained these injuries in the motor vehicle accident:

a) soft tissue injuries to the cervical spine region;

b) a fracture of the left calcaneum;

c) soft tissue injury to the shoulder girdle region.

Dooley thought the motor vehicle accident may have mildly, and temporarily, aggravated Hart’s back leaving the causes of his back symptoms to work related injuries and naturally occurring disc degeneration.

As to prognosis, Dooley said:

“I believe it is likely that Mr Hart will continue to note lumbar spine pain. It is probable that he will continue to note acute exacerbations of lumbar spine pain. I believe that a regular exercise program will help him reduce the frequency and intensity of these episodic attacks”.

On 7 September 2001, Dooley re-examined Hart[12]. He noted surgery to remove a scrotal cyst, which improved his left groin pain. It appears that the reference to the right groin in the report of the 1 April 1999 was a mistake. It should have been the left groin. Dooley noted a toe-stubbing incident in about June 2001, which caused Hart a significant increase in back pain and three days in bed. Overall, Dooley maintained his earlier opinions. He made these comments:

“As previously outlined disc prolapses occur in degenerating discs. The disc prolapse necessarily involves some aggravation of the underlying naturally occurring disc degeneration….Acute aggravations of this underlying condition can be precipitated with minor traumas…”

His prognosis was:

“…I believe that Mr Hart will continue to note intermittent low back pain and probably intermittent left buttock and thigh pain…Intermittent acute exacerbations of pain may occur at times but overall these should settle of their own accord.”

On 17 March 2003, Dooley again examined Hart. Much of his report is devoted to the injuries sustained in the motor vehicle accident. Dooley felt that Hart’s lumbar spine condition was not aggravated by the vehicle accident.

In relation to the movements of the lumbar spine, Dooley found – flexion (40 degrees); extension (15); left and right lateral flexion (20); left and right rotation (20). Straight leg raising was limited to 80 degrees with each leg.

On 7 October 2010, Dooley examined Hart for the last time. He noted a well healed microdiscectomy scar. Lumbar spine movements were – flexion (20 degrees); extension (10); left and right lateral flexion (10); and left and right rotation (10). Straight leg raising was limited to 70 degrees with the right leg and 80 degrees with the left.

Under the heading “Diagnosis, clinical impression and opinion”, Dooley expressed these opinions[13]:

“Based on all the information available, Mr Hart developed a right sided disc prolapse at the L4/5 level in August of 2008. Disc prolapses occur in degenerating lumbar discs. Mr Hart has naturally occurring degenerative disc disease of the lumbar spine. It is so called multilevel (sic.) affecting all levels of the lumbar spine. In reality, the majority of disc prolapses occur spontaneously as part of the natural evolution of the underlying degenerative condition. They may be precipitated by trauma in the form of lifting, bending and twisting. They may be precipitated by prolonged sitting in an awkward posture.”

In a subsequent report, after noting the absence of an acute episode at work, which precipitated the L4-5 prolapse, Dooley said – “My view would be that the pain that began around August of 2008 would have occurred whether or not Mr Hart was carrying out the type of work he was doing”.

Jarasius

B.W. Jarasius is a general surgeon. He started treating Hart from 8 April 1999. He noted the 30 May 2001 incident and three months later said[14]:

“Since this episode his back has given him a lot more trouble. His back is quite stiff and all movements are markedly limited by pain. Straight leg raising is limited to 30 degrees on both sides…

….I think it is unlikely that there will be any improvement in his condition, indeed it is likely to slowly get worse.”

Maling

William Maling is a general surgeon. He saw Hart on 7 August 2001 at the request of his solicitors. He had seen Hart before. By the time of the examination, Hart had been absent from work due to 30 May incident and an unrelated small operation. On 7 August, Hart was more disabled than when Maling saw him previously. Hart said he was having a “bad day”. Back movements were grossly restricted. Moreover, Hart could not reach an erect position. There was back spasm, loss of lordosis, a kyphosis and scoliosis. Nevertheless, the areas of pain remained the same – mid lumbar region radiating out into the left upper buttock and down the back of the knee, associated with some tingling.

Maling thought fusion at L2-3 appropriate. Failing that, another form of treatment called prolotherapy.

Schofield

Stanley Scofield is an orthopaedic surgeon. He examined Hart on 28 September 2001, and again in October 2010 at the request of his solicitors.

During the 2001 examination, Schofield noted the 30 May incident. Hart claimed that he had not yet returned to his chronic pain state since that incident. He had central low back pain and referred left buttock pain to the knee. Flexion and extension were markedly restricted but lateral flexion and rotation were normal. Straight leg raising was restricted to about 50 degrees.

After the October 2010 examination, Schofield wrote:

“It is my opinion that your client has suffered a new injury on the basis that your client has suffered aggravation of his pre-existing injury. That aggravation occurred over time when his tasks were changed to a more physical role in 2007 and 2008. This is likely to have caused a further weakening of the posterior annulus at L4-5. The annulus then ruptured whilst your client was doing simple exercises at home. The acute, severe pain required urgent referral to a neurosurgeon, who performed surgery to remove a sequestrated disc prolapse on the 28th November 2008. I, therefore, believe this constitutes a new injury to your client’s low back and particularly at L4-5 under the definition provided in your second paragraph.”

Earlier, Schofield recorded this history:

“In 2007, his job was changed to a more physical role and he stated that this was in the area of ‘planned maintenance optimisation’. This job included inspections on ships, which included inspections at six levels and including inspections of cupboards….

In 2008, he became a maintenance co-ordinator in a planned supervisory role, but this was even more physical, including climbing ladders and prolonged standing.”

Han

Tiew Han is a neurosurgeon. He treated Hart at the request of Grave. He first saw Hart on 17 November 2008 who complained of low back pain, right sided sciatica and right sided foot drop. According to Hart, there were two reasons for the onset of these symptoms – during the course of his employment; and after getting up from the floor following exercises. Hart had an antalgic gait with pain radiating down his right leg and weakness in the dorsi flexion of the right foot.

On 28 November, Han performed a discectomy and spinal rhizolysis. He found a sequestrated fragment at L4-5 with compression on the L5 nerve root. He decompressed the nerve root.

Han reviewed Hart on four occasions. He last saw Hart on 19 March 2010. Tan saw Hart’s ongoing difficulties as due to his right-sided disc herniation at L4-5.

Of the medical practitioners, Han alone gave oral evidence. He viewed various reports of scans and expressed these views:

a) by 2001, the L2-3 prolapse had resolved naturally;

b) between 1995 and 2001, the state of the L4-5 disc did not change much;

c) when discal material extruded from the L4-5 disc there would back pain and pain down the right leg. In other words, Hart would have noticed;

d) if there is excessive strain on the discs at work then the likelihood of a prolapse in Hart’s back was very high;

e) Hart’s physical work between 2006 and 2008 contributed to the occurrence of the L4-5 prolapse and his right-sided pain.

Baker

Chris Baker specialises in occupational medicine. On 1 February 2010, he examined Hart at the defendant’s request[15]. On Hart’s advice, Baker assumed that the role of plan services maintenance co-ordinator involved:

“..the expectation is to climb ladders, enter confined or restricted spaces, work at height, walk distances over undulating ground, enter pits, enter compressor house and work across sites and cover absences for other maintenance coordinators.”

In answer to a question posed by the defendant, Baker said:

“I consider that there is a relationship between his L4-L5 disc lesion and employment. I would consider that he had pre-existing changes of a constitutional nature but over the years there has been an accumulative effect on the disc, to the stage that it weakened in 2008 resulting in the right-sided disc prolapse necessitating surgery.”

Baker provided a second report on 24 March 2010. It responded to a letter from the defendant’s solicitors, which enclosed at least two medical reports. Baker said:

“It would appear that he has had back problems for many years with the original incident being around December 1994. It would appear since then that regarding his multilevel degenerative disc changes, there have been progression over the years with increased symptoms, but a lack of evidence of any significant work related aggravation or acceleration.

It was noted that he was in a lighter role undertaking plant services maintenance co-ordinator work.

I therefore I am referring back to the specific question which you have raised. I have not been able to identify any specific incident in the workplace where there would be a measurable aggravation or acceleration or exacerbation or deterioration in his condition, which would be attributable to employment. I would therefore consider that the deterioration is therefore constitutional and age related due to the degenerative changes in his spine, which have been progressive with time.”

Baker re-examined Hart on 16 August 2010[16]. On this occasion, Hart gave him a letter, which described some of the activities of a plant services co-ordinator. Accepting those activities, Baker considered Hart unfit to undertake that role but fit for office based tasks “where he can change his position and move about at will”. Baker did not discuss the relationship of injuries to employment.

Nye

Daryl Nye is a neurosurgeon. On 18 August 2010, he examined Hart at the request of the defendant’s solicitors and reported. In a subsequent report[17], Nye expressed this opinion:

“At the time of assessment the above reported a change in his occupational position occurring in 2007 from an office based situation to ‘field work’, which I understood involved walking about the plant and undertaking inspection responsibilities. When so engaged in 2008 deterioration occurred with development of an L4-5 disc prolapse requiring surgical treatment.

Under the circumstances it would have to be accepted that employment since 1999 has been an aggravating, accelerating and deteriorating factor with respect to the development of the condition being a complication of pre-existing degeneration and requiring surgical treatment.”

In response to a query from the defendant’s solicitors, Nye commented[18]:

“It could not be stated that the Claimant’s presentation today is different to that which it would be had the Claimant not worked with your client from the 12th October 1997.

I remain of the opinion that employment with your client has resulted in aggravation, acceleration and deterioration of a lumbar spinal condition, and an alteration in the level of incapacity and particularly L5 radiculopathy.”

Cullen

Neil Cullen is an orthopaedic surgeon. He examined Hart on 18 May 2000 at the request of the defendant’s solicitors. Hart told him that his lower back was much the same as it had been for the past 4 to 5 years. There were occasional exacerbations, resulting in short periods of incapacity. Cullen noted a satisfactory range of spinal movement with some caution exhibited towards the extremes of the range obtainable. He recorded – flexion (50); extension (20); left and right lateral flexion (30); and left and right rotation (30). Bilaterally, straight leg raising was to 50 degrees. For present purposes, Cullen attributed the disc prolapse at L2-3 to incident in 1994 and its effects had not subsided.

Cullen re-examined Hart on 30 August 2001. There was no significant change since the earlier examination. Spinal movements were much the same as before – flexion (50); extension (20); left and right lateral flexion (20); and left and right rotation (30). Straight leg raising was more limited to 20 degrees bilaterally.

Discussion

Broadly, the issue is whether Hart can establish an entitlement to compensation under s 82(1) of the Act where his status as a worker is not in issue. More precisely, it is whether he can establish an injury, simpliciter or extended. The former is a reference to the opening words of the definition of “injury” in s 5(1); the latter to paragraph (c). The latter brings into play s 82(2C).

Avoiding the word “injury”, the condition is a prolapse of the L4-5 disc, impingement on the L5 nerve root and pain down the right leg. The defendant’s contention is that the prolapse, etc., is due to the progression of the injury to which s 135A(18) applies. Nevertheless, the burden of proof lies on Hart. He must satisfy me that there has been caused to him an injury arising out of or in the course of his employment with the defendant, not being the “injury” to which s 135A(18) applies.

Hart has degenerating lumbar discs. He has had back troubles for many years, since he was 19. If a disc is degenerative, a prolapse can occur. Usually, acute lower back pain accompanies the occurrence of a prolapse. Leg pain may also accompany the back pain. However, the acute pain reduces after 6 to 8 weeks. Improvement in the level of pain continues but there is residual aching. As the disc continues to deteriorate, there is intermittent acute pain.

I admitted a large number of medical reports into evidence. Understandably, they were prepared during two periods – about the time of the County Court proceeding; and about the time of this proceeding. They reveal a L2-3 prolapse in 1994, followed by a stable back condition between 1995 and 2001 with occasional serious exacerbations, which resolved relatively quickly. In this first period, the last report belongs to Dooley. It concentrates on Hart’s shoulder. The back condition remains as before. The state of Hart’s lower back apparently follows the usual course of a lumbar disc prolapse.

After 2001 until 2006, the condition continued on the same apparent course. Between 2000 and 2006, Hart’s job with the defendant involved deskwork. It was a perfect job for someone with his lower back injury. There was no physical aspect. He could move about as he wished. However, between 2006 and 2007, he changed his job twice. These jobs were more active than his deskwork job. There was evidence from Schwartz about the largely non-physical nature of Hart’s duties after 2006. I do not accept that Schwartz’s description of those duties accurately reflect what Hart was actually doing. My impression of Hart is that he was a dedicated employee and performed his duties as best he could. If he had to inspect something, then he would inspect it rather than gaze at it from a distance. At times, he needed to bend, squat, kneel, climb and assume awkward positions to carry out his tasks.

During the second half of 2008, Hart returned home from work with a painful back. It was a common occurrence for him to return from work with his back in such a state. He sought relief by lying on the floor with his legs raised and resting on a chair. He got up from that position and experienced severe pain on his right side.

Pausing there, the radiological material is interesting even though patchy. It also reflects the two periods. In 1995, there is a large prolapse of the L2-3 disc. By 2001, it has disappeared. Between 1994 and 2001, state of the L4-5 disc improved for by 2001, there is only minor degeneration present. By September 2008, the L2-3 disc shows mild desiccation with no protrusion and the L4-5 disc is prolapsed. By February 2010, there is minor broad based bulging at L2-3 flattening the anterior thecal sac contour. The bulging is “slightly more prominent” than the previous studying September 2008.

From a radiological perspective, these findings show that the state of the L2-3 disc improved significantly from 1995 to 2001. The prolapse has disappeared. Similarly, the minor prolapse of the L4-5 disc in 1994 has disappeared by 2001. One may interpret the September 2008 L2-3 finding as replicating the 2001 finding. The disc has remained the same. However, by February 2010, its condition is worsening. Overall, the picture of both discs is of an improving, then improved disc, from 1995. By 2010, the L2-3 disc has resumed its deterioration.

Combining all of the circumstances, then one can more readily accept Scofield’s view that the cumulative effects of his work weakened the posterior annulus of the L4-5 disc, leading to the prolapse with consequent effects than the opposing view.

There was an attack upon Hart’s credit as a witness. I saw and heard him for some time. I accept him as credible. The likelihood of his reporting if injured does not affect my assessment of his credit.

I am satisfied that the L4-5 prolapse and right-sided symptoms constitute an injury arising out of or in the course of Hart’s employment with the defendant. As to whether it is an injury simpliciter or extended, if one views the disc as degenerate in 2008, then the prolapse and impingement represent an aggravation of that condition. It is an aggravation of his pre-existing injury to the lumbar spine. Plainly, his employment was a significant contributing factor to that injury. Since the injury occurred after the settlement of Hart’s damages claim, he is not precluded by s 135A(18) from maintaining this claim. His incapacity for work since October 2009[19] resulted from that injury. Since October 2009, he has had no current work capacity.

In light of the above, I am prepared to make a declaration of the defendant’s liability under s 98C. However, having regard to the description of “injury” in the statement of claim and my findings, I would invite the parties to draft a form of the declaration.

I would amend the defendant’s name to read “Portland Smelter Services Pty Ltd”.

I will hear the parties on the form of orders and on the questions of interest and costs.

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[1] Exhibit RTH1 to Hart’s affidavit sworn 3 March 2000 (exhibit 2).

[2] Exhibit 3 – copy affidavit sworn on 4 December 2001.

[3] Paragraph 18.

[4] Exhibit 25.

[5] Exhibit 3 – affidavit sworn 4 December 2001 at [17].

[6] Exhibit 4.

[7] Exhibit P.

[8] Exhibit Q.

[9] Exhibit R.

[10] At p 3.

[11] Exhibit 18.

[12] Exhibit 19.

[13] Exhibit 22 at pp 3-4.

[14] Exhibit C.

[15] Exhibit 11.

[16] Exhibit 14.

[17] Exhibit 24 – report dated 20 September 2010.

[18] Exhibit 16 – report dated 6 December 2010.

[19] The precise date in October was not established in the evidence.

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