In the Magistrates Court of Victoria

IN THE MAGISTRATES COURT OF VICTORIA AT MELBOURNE

Case No. A13303703

ANTHONY WINDEN Plaintiff v

EAGLE FUELS PTY LTD Defendant

MAGISTRATE: B. WRIGHT WHERE HELD: MELBOURNE DATE OF HEARING: DATE OF DECISION: 28 APRIL 2011 CASE MAY BE CITED AS: Winden v Eagle Fuels

REASONS FOR DECISION

Catchwords:

Workers Compensation – Rejection of Claim – Severe Back Pain at Home – Whether Employment a Significant Contributing Factor – Accident Compensation Act ss. 5, 82(2C)

APPEARANCES: Counsel Solicitors

For the Plaintiff Mr N Horner Maurice Blackburn

For the Defendant Mr J Batten Minter Ellison

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HIS HONOUR:

1 Mr Winden seeks weekly payments and reasonable medical and like expenses for an alleged back injury arising out of or in the course of his employment with the defendant.

2 He alleges that the injury is due to the stresses and stains of his employment with the defendant as a diesel re-fueller servicing Sprinter and Velocity trains at night in Traralgon. He suffered severe pain when starting a lawnmower at home on Saturday 15 May 2010. He last worked for the defendant prior to this date on 9 May 2010.

3 He is 39 years old and has formal qualifications in aircraft sheet metal fabrication. Unfortunately he suffered grand mal epilepsy fits in that occupation and has worked in various jobs since then. He is eligible on illness grounds for a disability support pension, even disregarding any back condition, because of his epilepsy.

4 He moved to the Latrobe Valley a few years ago. He started doing the same job as with the defendant for a company known as Local Oil Pty Ltd. On 1 July 2009 he continued in the same duties with the defendant.

5 No evidence was called as to any detail of the changeover apart from the plaintiff saying that the defendant had "taken it over". In those circumstances neither party argued that I should consider his employment prior to 1 July 2009.

6 He was employed on a casual/part time basis working a regular two nights per week for an average of four hours per night. Some weeks he would change with a co-worker and then work three nights in the same week. However, this did not appear to affect the overall number of nights worked per week.

7 He agreed that he worked two four hour shifts per week over the period from

1 DECISION JAG WINDEN

8 March 2010 to 25 April 2010 and signed documentation to that effect. As stated, he last worked on 9 May 2010. Thus, he had not worked for some six to seven days prior to an incident at home when he pulled a starting cord on a relatively new lawnmower.

8 He had been suspended for work for about two months in between September 2009 and November 2009 after a test revealed cannabinoids in his blood. He was not allowed to be on railways property in that time.

9 Thus, he worked about seven to eight months doing on an average two four- hour shifts per week in that time, save and except for the two month period in about September to November 2009.

10 His duties involved diesel refuelling of trains. He would pull a 36 mm rubber hose from a truck and connect it to a trolley near the trains. The trolley had a hose reel on it. He would pull another hose from the trolley up and down the trains and connect it to each carriage at a point just below waist height. He said that the empty hose would be difficult to pull as it would drag along the ground. Once fuel was in the hose and turned off at the faucet end it would be much easier to drag over the ground, as it would not snag as much. However, it would be heavy as it would be full of fuel.

11 He would also have to drag along 20 kg spill trays as he went. At times he would drag the hose between or under carriages to service other train carriages on other rail lines. He found it easier to go under the carriage than between them. He said that he had no previous history of back problems. After he commenced his employment with the defendant he said that he would get what he described as light aching to the back or muscle soreness at the end of a shift. He did not mention this to anyone.

12 As stated he felt a low back pain when he pull started a relatively new lawnmower at home on 15 May 2010. He had to pull the starting cord twice.

He demonstrated a pulling motion from about knee height with maybe a slight twist as the cord reached its full length. Shortly after, he noticed the pain go to his left hip and later again down the left leg to the foot. He was not due to work again until 21 May 2010.

13 He used Dencorub and took some Mersyndol over the weekend. On the Monday 17 May, he saw a GP Dr Shevotsova at the Moe-Newborough Health. She thought it was muscular and gave him some Panadeine Forte. Later that day he rang some work colleagues and the defendant's CEO and told them that he had hurt his back and he was not able to work for a week or so, despite the fact that the GP had not given him any medical certificate. He did not raise the issue of any potential workers compensation claim with his colleagues then. He has not worked since.

14 By the Friday of that week, his back was so bad that he was unable to walk. He returned to the same medical clinic and saw some other doctors who arranged a CT scan and stronger medication for him. In between, he said he had some treatment at the Latrobe Hospital and later with a Dr Tawied.

15 On 20 July 2010, he first raised the question of a possible workers compensation claim with a GP, Dr O'Donoghue, who disagreed in view of the history of the back pain starting with the lawnmower episode. Six days later, he returned to see a Dr Hall and further raised the possibility of a gradual process injury after some discussions with his solicitor.

16 His continued treatment at the Moe-Newborough Clinic being treated by way of muscle relaxants and analgesic patches. In late November 2010, he had a laser guided steroid injection with little benefit on the suggestion of Mr George Owen, an orthopaedic surgeon. The defendant has denied liability for the back injury on the basis that it is not work related. The plaintiff has the burden of

proof in this regard.

17 Because of the presence of degenerative disease to his lumber spine shown in the CT scan it is necessary for him to prove that the employment was a significant contributing factor to his injury (see, s.82(2C)).

18 Thus, I need to take in to account the various factors set out in s.5(1B) in considering whether employment was a “significant contributing factor” to the claimed injury, simply claimed in the statement of claim as "Injury to the back." All of the relevant paragraphs in s.5(1B) are probably relevant in this regard save for sub-section (e) as to hereditary risks, in respect of which there was no evidence.

19 The medical evidence called in this matter was limited to medical reports and notes from Mr Winden's treating GPs in the Latrobe Hospital. I also had medico-legal reports from Mr Khan on behalf of the plaintiff and Mr Kudelka on behalf of the defendant, both of whom are orthopaedic surgeons. I had no material from his orthopaedic surgeon, Mr George Owen.

20 Video surveillance of Mr Winden showing him laying on the ground under the door of his car and trying to extract a spring from the inside panel of that door was of little assistance to me. It showed him getting up very slowly, consistent with a back injury, though he was later able to stand and pick up something from the ground while bending forward. Much was made by defendant's counsel of the plaintiff allegedly trying to “manufacture” a workers compensation claim in this case.

21 Mr Winden was frank at all times that his first severe pain occurred after he tried to start his lawnmower at home. He told his work colleagues of that history at the time. It is really a medico-legal question whether his employment was a significant contributing factor in all the circumstances. In that context he sought, and was given, advice by his solicitor which was appropriate to do in

the circumstances.

22 The most significant factor in his CT scan is at the L4-5 level where there is a bulge and compression to the exiting L4 route on the left side. Mr Khan, and initially Mr Kudelka, supported the claim as being related to his work.

23 However, Mr Kudelka's original history was of the relevant back and leg pain episode occurring while he was pulling hoses at work. Mr Kudelka took no initial history of the lawnmower episode. When he was given a history close to that given before me by Mr Winden, he thought that the injury was a mechanical back injury related to whether he was at work or "operating his lawnmower business" at the time.

24 Mr Khan took a more detailed history of the work process involved in his occupation with the defendant. However, he took a history of having to pull the trolley along, which was not the case, to do the job. The trolley remained at the one spot.

25 Mr Khan was also given a history of a 15 and a half hours work per week, which is almost twice that as agreed in evidence before me. In addition, he did not appear to take a history as to when Mr Winden last worked prior to the episode on Saturday 15 May.

26 Indeed, he took a history that Mr Winden would work on Friday, Saturday and Sunday one week, and Saturday, Sunday and Monday on alternative weeks, with extra days at times. That is not what Mr Winden agreed to before me.

27 Also, although he took a history of eight months employment, without the history of a two month absence in late 2009.

28 On any view of the evidence, the actual final and continuing symptomatic aggravation of the pre-existing degenerative spinal disease occurred as a result of the lawn-mowing incident. I do not accept that the short periods of

back pain at the end of a shift on a regular basis was any more than muscular pain. Indeed, Mr Khan does not appear to place any significance on that

history either.

29 Mr Khan says that the spinal degeneration had deteriorated, or flared up, over a period of time due to the heavy nature of his duties resulting in the prolapse at L4-5 following the incident at home. However he does not go into any more detail as to how the underlying disease deteriorated without symptoms over the period of employment or due to that employment.

30 Unfortunately and understandably, no CT scan was taken prior to his relatively short period of employment involving about eight hours of employment or slightly more each week. Although the nature of the performed work and particular tasks involved may appear to implicate work in his back injury, I am not so satisfied on the balance of probabilities.

31 The duration and average hours of his employment and his outside activity (pulling the lawnmower cord) militate against that work relationship. The extent of his degenerative changes and the relatively short period of employment do not go to the likelihood of probable development of the injury occurring outside the workplace anyway.

32 Finally, the length of time between his last day of work and the specific symptomatic aggravation at home militate also against there being a work relationship on the balance of probabilities.

33 In all the circumstances, the proceedings are dismissed.