In the Magistrates Court of Victoria s3

IN THE MAGISTRATES COURT OF VICTORIA AT MELBOURNE Case No.B10054724

CHRISTOPHER BREEN Plaintiff v

VICTORIAN WORKCOVER AUTHORITY Defendant

MAGISTRATE: Magistrate B. Wright WHERE HELD: MELBOURNE DATE OF HEARING: 8, 25-27 June 2012 DATE OF DECISION: 11 July 2012 CASE MAY BE CITED AS: Breen v. WVA

Catchwords: Workers Compensation – Injury to Back - Rejection of Claim for Weekly Payments – Previous Admitted Back Injury Surgery and Damages Settlement with Earlier Employer – Further Alleged Injury with Defendant – Consent Dismissal in County Court and later Payment of Medical Expenses and Surgery by VWA - Issue Estoppel/Res Judicata Defence – Causation Issues – Incapacity Beyond 104 Weeks – Accident Compensation Act ss 5, 82, 93C

APPEARANCES: Counsel Solicitors

For the Plaintiff Mr D Connell, and later Ms J Simon Legal Sun

For the Defendant Mr J O'Brien Minter Ellison

1 DECISION JAG Breen v. VWA

HIS HONOUR:

1 Mr Breen is a 55 year old former plastic extruder operator who was formerly employed by Ruskin Flexi Films Pty Ltd (“Ruskin”). The VWA is the defendant in this action as Ruskin has apparently been struck off the company register.

2 He was employed by Ruskin from about 6 September 1995 to about the first week of December 1995. He alleges he suffered an injury to his back in that employment on or about 21 September 1995.

3 It is agreed he was paid weekly payments of 78 weeks and reasonable

medical and like expenses to date following settlement of a County Court action relating to the back injury on 11 May 2000. He now seeks continuing weekly payments from 1 January 2010 to date and continuing, resulting from the 1995 back injury. 1 January 2010 was the approximate date when he put in his new claim form against Ruskin. In its Defence the defendant denies any work related injury or incapacity, especially in regard to the period claimed.

4 Further, the defendant alleges an issue estoppel/res judicata arising out of the settlement of the County Court action against Ruskin for statutory benefits on 11 May 2000.

5 Mr Breen was born in New Zealand and came to Australia in about March 1986. He has a now lapsed commercial pilot’s licence. He had previously worked as a plastics extruder operator for Visy in 1987.

6 In or about September 1987 he hurt his back with Visy handling rolls of plastic film. He said he had no back pain but only left leg pain. He eventually progressed to surgery and had a two level laminectomy performed at the L3- 4, L4-5 levels by Mr Hugh Weaver, an orthopaedic surgeon in 1988. He said this surgery relieved his leg pain, but he has continued since shortly after the

surgery to have left foot numbness.

7 It was put to him in cross-examination that he received 160 weekly payments of compensation from Visy for that back injury. He said he could have received weekly payments for a number of months and “could be years.” He said he received two lump sum s.98 amounts and believed that the two figures of $8911 and $10,181 may be correct. He said that the second lump sum was a mistake. However, he was able to retain that money as well as other workers’ compensation benefits together with a $45,000 lump sum by way of damages in settlement of a common law action against Visy. He said the settlement was in about late 1992.

8 After his injury at Visy and prior to his common law settlement he worked as an extruder operator in a similar capacity for three other companies, Pak-Rite, Beaver and a company known as Renown and Pearlite. He worked at those jobs for three to four or even up to six to seven months. He said he hurt his back at Pak-Rite again and lodged a workers’ compensation claim against them when working at Beaver. He said he was told by the Victorian WorkCover Authority that he should lodge that claim against Beaver.

9 There was no further evidence about this injury or claim. However, Mr Breen denied having back pain at all at any time prior to his surgery in April 1988 and indeed after, as I shall discuss. After his common law settlement against Visy, he went to the Philippines with his wife to work as a cashier in his wife’s family business. He was there from about June 1993 to March 1995.

10 After his return to Australia he got a job as a casual extruder operator with Ruskin on about 6 September 1995. On about 21 September 1995 he said he hurt his back again together with his right shoulder lifting 50 kilo rollers for the plastic film. He went to his doctor but continued to work. He did not lodge a

workers’ compensation claim until December 1995 when he ceased work for Ruskin as he was told that he would be sacked if he did lodge such a claim.

11 He emphasised that after the 1995 injury he had both left and right leg pain, but no back pain. His workers’ compensation claim was rejected and he went onto sickness benefits between 1996 and 1999. During that time he retrained as an IT systems operator. He said his legs “were sore” but his back was “fine.” The pain in his legs increased. He said he was on painkillers and he saw Mr Hugh Weaver again “a few times” in that period.

12 His County Court action against Ruskin arising out of the rejection of his claim came on for trial on 11 May 2000. On that date a consent order was made dismissing his claim with a nominal costs order. As part of the Order the claim for reasonable medical and like expenses was expressly removed from the Prayer for Relief.

13 It was common between the parties that Mr Breen received 78 weekly payments as part of that settlement and he was allowed to claim continuing reasonable medical like expenses. In fact, he said that the VWA (on behalf of Ruskin) has continued to pay his continuing reasonable medical and like expenses to date, including the costs of further spinal surgery that he had on 13 September 2010.

14 Neither party produced any Terms of Settlements entered into on or about 11 May 2000. Thus, all I have is the consent order, the agreed payment of a limited period of weekly payments and the actual payment of continuing reasonable medical and like expenses, including the further surgery in September 2010. After the finalisation of his County Court action he said that his bilateral leg pain became worse and his use of painkillers increased.

15 He began to attend his present GP’s clinic in Stud Road in about 1996. The only doctor called to give viva voce evidence, Dr Wang, said that he had only seen Mr Breen personally since May 2004. The only clinical notes produced in

court from that clinic date back to September 2003. Other documents showed he had been previously treated at a clinic at a different address in Stud Road.

However, there was nothing to indicate that this was the same clinic that had simply shifted address.

16 Counsel for Mr Breen tendered a number of referral letters from Dr Wang issued from 2007 to 2010. He was referred again to Mr Weaver and to Mr Chris Xenos, a neurosurgeon, in 2007. Also, he was referred to Mr Hayward, a psychologist, in 2006 and 2009, and the neurosurgeon, Mr Craig Timms, in 2010.

17 Mr Breen said that he saw Mr Weaver about one to two times about that time but did not think he saw Mr Xenos at all. He had psychological treatment under a mental health care plan for a while for “severe depression.” He had a further CT scans and an MRI in 2007, 2010 and 2011.

18 On 6 April 2010 Mr Timms requested permission from the VWA to undertake a three level laminectomy from L3 through to the S1 levels. The authorised agent in relation to Ruskin, CGU, had him examined by Mr David Brownbill, neurosurgeon, who had not previously seen Mr Breen. After getting Mr Brownbill’s report and a second report after giving some further information to him, CGU agreed to pay for the surgery which was undertaken on 13 September 2010.

19 It is important to note that Mr Breen on a number of occasions before me denied any back pain at all except between about 2008 and 2009. On another occasion in the witness box he said that he had “very little back pain.” Later again in answer to a history of back pain in early 2004 he said that he had had intermittent back pain since the operation. He was put a number of medical histories of back pain in 1991, 1995, 2003, 2004 and 2007 but denied any back pain, save and except as I have set out.

20 At the start of his evidence he was at pains to emphasise that he had a bad memory of events prior to 2004 but was adamant on several occasions as to the limited history of back pain as I have set out above. After the settlement of

his case in May 2000 he began working as an IT consultant for several schools installing, maintaining and repairing computer hardware including servers, laptops, and peripherals as well as installing software. He serviced about 75 schools between 1999 and 2009 on a contract basis.

21 He did similar work for three months in 2011 and three weeks this year around about March 2012. He said that he “tries to keep in employment.” He did not give any further particulars as to those work dates. He remains on painkiller medication such as OxyContin, Valium (as a muscle relaxant) and Endone. He takes Epilim as well. He continues to get “knife-like” pain in the legs which makes it difficult to drive and work. He did not give any evidence of continuing back pain.

22 As stated, only one doctor, his GP Dr Wang, gave viva voce evidence. He had only seen Mr Breen since May 2004. Since then Mr Breen had continually complained of chronic back and bilateral leg pain. He said the leg pain was a “burning-type” pain with numbness to the legs. He said that he believed that the chronic back and “leg” pain (not stating which leg or legs) went back, and was due, to his injury in 1987 with Ruskin. I note he was actually employed by Visy, not Ruskin, in 1987. Also, contrary to Mr Breen’s evidence Dr Wang said that there had always been chronic back pain from when he first saw Mr Breen.

23 He treated him between 2004 to 2007 with various painkillers, etc. He referred him to Mr Chris Xenos and Mr Hugh Weaver in 2007. The back pain was worse, radiating to both legs with the right leg being worse. He was not asked about any medical reports from any specialists, none of which were in the subpoenaed medical notes anyway. He referred Mr Breen to Mr Hayward for psychological treatment in 2009, and eventually to Mr Timms in 2010.

24 He said Mr Breen’s back pain had been getting worse since the surgery and recently increased his OxyContin to 240 milligrams per day. He said Mr Breen

was unable to work, can’t drive for long and can’t bend or twist. He is limited to sitting and standing for 30 minutes at a time and could not do computer work “as the chairs are too low,” whatever he means by that. He thought Mr Breen needed retraining and time to recover in maybe two years’ time.

25 He said that he had never taken a history of injuries from Mr Breen and relied on his history from the specialist reports. He said that Mr Breen had got worse between 2007 and 2010. Three short referral reports, or letters, from Mr Timms to Dr Wang from earlier this year were tendered in evidence. In those letters Mr Timms referred to an MRI suggestion of a disc recurrence at L5-S1, a minor disc bulge at L4-5 and a suggestion of a possibility of a two level fusion at those levels if there was further deterioration. No psychological or psychiatric evidence was called or tendered by either party.

26 This was the sum total of the treating doctors’ medical material that was called or tendered on his behalf. Ms Sun applied to tender two reports from Mr Weaver dated February 1996 and June 1999, addressed to his former GP and former solicitors respectively. These reports had not been served on the defendant prior to the completion of the evidence of Mr Breen and Dr Wang. As their tender was opposed by the defendant I had to make a ruling. Prior to my ruling Ms Sun stated she was not calling Mr Weaver.

27 In my ruling refusing tender of the medical reports from the Bar Table, I referred to the very late service of those reports. I also noted the evidence from Mr Breen that he had also seen Mr Weaver one to two times in 2007 which would not be addressed in those two reports. Mr Brownbill also referred to an earlier 1991 report from Mr Weaver.

28 Having regard to my finding as to the tendency of those reports being “unfairly prejudicial” to the defendant I refused to accept them being tendered pursuant

to the Evidence Act, s.135. I then stood the matter down for Mr Sun to get instructions as to what she sought to do then. After half an hour she returned

to court and stated that she was closing her case. When I asked her whether she was making any further application (expecting her to call Mr Weaver) she said that she would be not making any further application. That meant that I did not hear from Mr Weaver who had apparently seen Mr Breen in 2007 or from Mr Timms, the treating surgeon for the second operation, or Mr Xenos who may have seen him as well. Mr Breen said that he did not remember seeing Mr Xenos.

29 In the final address Ms Sun gave evidence from the Bar Table that Mr Timms was “overseas until July” which commenced the following week after the completion of the case. Even if Mr Timms was away until that time, no application was made to adjourn the case for that short period to hear his evidence. In fact at no stage did she refer to calling Mr Timms at all.

30 Thus, I have no evidence, medical reports or notes from any treater prior to September 2004 which was some nine years after the claimed injury at Ruskin. A medico-legal report from a Dr McInnes, a surgeon, dated 1 September 2011 was tendered by the plaintiff. Dr McInnes noted that he did not have any details of either of Mr Breen’s operations. He stated in his report that Mr Breen’s lumbar sacral degeneration was aggravated by the work injury in 1987. He mistakenly thought that the three-level laminectomy had occurred then.

31 He went on to say that Mr Breen had made a satisfactory recovery but “further he injured his back sometime prior to September 2010 when he had a subsequent operation by Mr Craig Timms.” He thought Mr Breen, from a physical point of view, had a capacity to do a limited type of manual work. Interestingly, he took a history of a subsequent back injury in 1990 to 1991. The only apparent reference to employment with Ruskin was that the job required heavy lifting and on that occasion he began getting pain in his right leg.

32 In the course of these proceedings before me it was obvious that the real issues in this case were whether Mr Breen suffered any, and if so what, injury to his back in the course of his employment with Ruskin and whether any such injury led to his second surgery in September 2010 and/or the claimed incapacity from January 2010. Having regard to the lack of treating doctor’s material, Ms Sun relied heavily on the medical report of Mr Brownbill and the later acceptance of liability for the second bout of spinal surgery.

33 Mr Brownbill was not called by either party and his medical report was tendered by plaintiff’s counsel. He examined Mr Breen once only on 28 July 2010. On p.4 of that report he set out the material he had at the time of the examination. That material included reports from Mr Neil Cullen and Mr Clive Jones that I will set out in due course. He also refers briefly to a note from Mr Timms of 6 April 2010 detailing a medical examination at that date of Mr Breen and the recent MRI findings. There was an irrelevant 2001 report about a fracture to a right leg as well.

34 Apart from a recent MRI report he also refers to a medical report from Mr Weaver dated 29 August 1991 which merely set out details by Mr Weaver of a CT scan of 1 March 1991. This was not one of the medical reports that plaintiff’s counsel sought to tender that I have previously discussed.

35 As to the history given to Mr Brownbill on 28 July 2010 (almost 15 years after the event), he said that on a date in September 1995 (Mr Breen could not remember the date) he was lifting 60 kg shafts with film and continued that job for two days. He could not remember when the pain started but after two days he realised he had pain in the right leg for the first time.

36 That pain had never gone away since then and otherwise left leg pain may still have been there. According to the history given to Mr Brownbill he attended

his doctor and was away from work for four years. There was no further injury, the pain continued in the right leg and he had “massive” right leg pain

“performing computer support and skills.” He told Mr Brownbill that he saw Mr Weaver who did not advise surgery.

37 Again in the history to Mr Brownbill, he said he continued working in 2008, when he stopped because of severe pain in the right leg and in the left leg and back which commenced when getting out of a shower in December 2007. On the basis of Mr Breen’s history, Mr Brownbill considered overall that it was probable that the injury in 1995 was an aggravating feature of the ongoing intervertebral disc damage resulting from the 1987 injury.

38 He thought that there was a reasonable request for surgery relating to the original (emphasis added) injury, which was presumably the 1987 injury. He was sent further material which is not detailed in his second report. In the later report he said that Mr Breen had noted the onset of right leg for the first time after the 21 September 1995 incident and the pain had never gone away. He said he would not conclude that such aggravation from September 1995 had resolved. He was unable to apportion between the two incidents.

39 Finally, Ms Sun tendered a number of unsigned medical certificates from Dr Wang covering the period from and certifying unfitness for work from 1 January 2010 to 12 September 2010. Of those certificates, five were backdated and referred to the date of issue being 11 May 2010. No viva voce evidence was led from Dr Wang as to those medical certificates, which I note were unsigned.

40 The defendant tendered medical reports from Mr Neil Cullen (dated August 1991) and Mr Clive Jones (dated January 1996). Mr Cullen said he had seen Mr Breen in respect to the workers’ compensation back claim against Beaver in about November 1990. Mr Cullen noted a history to him in August 1991 of “persisting back pain and bilateral leg pain,” (emphasis added). This is despite

Mr Breen’s evidence of no right leg pain until 1995, though Mr Cullen did note that the pain was more pronounced on the left side. These two important

aspects are clearly different to the history given to Mr Brownbill and to this court. Mr Brownbill had access to Mr Cullen’s report in formulating his opinion.

41 Of more relevance are the two reports from Mr Jones in January 1996. He made the rather curious observation that there is “left sided sciatica radiating down the right leg as far as the foot.” Mr Jones thought that there had been some aggravation, which he thought was apparently symptomatic, of the pre- existing back condition by his employment with Ruskin. He made no comment about the length of time such aggravation did or would continue.

42 As stated, Mr Breen’s claim against Ruskin was denied in a Notice dated 31 January 1996 on the basis he had not sustained an injury with Ruskin. Further, a County Court writ was issued arising out of that rejection. The proceedings were dismissed by consent in May 2000. By consent, his claim for reasonable medical and like expenses was specifically removed from the Prayer for Relief and he received 78 weekly payments by way of settlement, as agreed between the parties.

43 His claim for surgery in September 2010 was paid by CGU. His later claim for reinstatement of weekly payments was rejected. In its Notice of Rejection dated 26 November 2010, CGU set out a number of relevant paragraphs:-

“1. The County Court matter was settled for a limited period of weekly compensation with medical and like expenses to continue in accordance with the Act.

2. Liability was accepted for the surgery (requested by Mr Timms) based on the opinion of Dr Brownbill.”

44 In his final address, Defendant’s counsel submitted that there was no injury to Mr Breen in September 1995 and there was at best a temporary increase in symptoms from the 1987 incident at that time. He pointed to the history of fluctuating symptoms in 1987 and Dr Wang’s lack of history and express opinion that the injury had resulted from the 1987 injury with Ruskin. Also there was evidence of another back injury with Pak-Rite (or Beaver).

45 He pointed to the lack of medical evidence prior to 2003. He noted the lack of, and otherwise poor, history as set out in p.5 of Mr Brownbill’s report. He said the only inference to draw from the settlement of 78 weeks payment in May 2000 was that this was an acknowledgement by the parties that there was only a temporary aggravation of his pre-existing back injury with Ruskin.

46 He pointed to the very close similarity of the present claim to that set out in the 1999 writ. He said the orders made and settlement reached amounted to an issue estoppel/res judicata and prevented Mr Breen from obtaining the claimed compensation benefits claimed, citing Ozbilgi v. Bradnams (2011) VSCA 210.

47 As to incapacity, he submitted there was no evidence that any incapacity sought from January 2010 was related to the 1995 injury, Mr Breen having worked for 15 years after the 1995 injury. He submitted there was no material contribution from the 1995 injury to the claimed incapacity. Further, as to Dr Wang, he said that he was unreliable, difficult to understand, had never taken a history from Mr Breen and had only seen him since 2004 anyway. He emphasised that Dr Wang was not prepared to say that the present “no current work capacity” as opined by him in the report was indefinite.

48 Apart from Dr Wang the only recent (i.e. post-2010 surgery) medical material was from Dr McInnes who stated that Mr Breen was fit for limited manual work as a result of his physical injuries. Thus, Counsel submitted that Mr Breen was only entitled to the balance of 104 weeks at best.

49 As to any allegation of “change of circumstances” since 1995, Counsel for the defendant pointed out that there was no evidence from any doctor who had seen Mr Breen both before and after the 1995 injury. He pointed out that Mr Brownbill was not asked to address “change of circumstances” but only the

actual need for surgery. He said Mr Brownbill pointed to a general deterioration of the whole period rather than the change of circumstances.

50 In her submissions Ms Sun dealt with Mr O’Brien’s submissions in a very limited way and made very limited further concessions.

51 She agreed that Dr Wang was not well organised, difficult to understand and that he did not take a history from Mr Breen. She submitted that she “did not feel it necessary to produce Mr Weaver’s records” and then gave evidence that “the reports were refused” (that is pursuant to the application to tender). She submitted Mr Timms’ notes in evidence supported incapacity as well as Dr Wang’s oral evidence. She agreed her client had the burden of proof of injury at Ruskin and referred to medical reports of Mr Brownbill, Mr Jones and Mr Cullen.

52 As noted, Mr Cullen saw Mr Breen before he was injured at Ruskin anyway which places doubts on the relevance of any injury at Ruskin. She said that Mr Breen gave evidence of right leg pain at Ruskin and did not work from late 1995 to 1999. She relied heavily on Mr Brownbill’s report and the principles set out in Ansett v. Taylor [2006] VSCA 171 as to the agreement to pay for the surgery and other medical expenses.

53 She submitted that the payment of the reasonable medical and like expenses, including surgery, was an admission as to the original injury and causation. As to issue estoppel she made no submissions other than simply referring to the recent decision of Lauritsen DCM in Wilson v. VSL (del. 12 April 2012). She did not make any further submissions as to the relevance of that decision to the present case.

54 She submitted that even if there was an issue estoppel/res judicata, that Mr Breen was still entitled to weekly payments at a later date if there was a “change of circumstances”. In support she referred to Hall v. HIH (County Court, unreported, Judge Rendit, del. 5 October 1998) without expanding on

its relevance. She also referred to Ajinivan v. Fry (2001) 3 VR 644) which involved a different fact situation as to a medical panel opinion which is not

relevant to these proceedings as there is no medical panel opinion before the court.

55 She submitted Mr Breen was entitled to weekly payments of compensation as sought. She said that Mr Breen was “very stressed and depressed”, but agreed that there was no psychiatric or psychological material or opinion before me.

56 Counsel for the defendant in reply referred to the limited ambit of the Ansett v Taylor decision, especially paras. 40 and 62 of that decision.

57 I now turn to making my findings. As to whether Mr Breen suffered any, and if so what, injury to his back in the course of or arising out of his employment I have already referred to the dearth of the treating doctors’ evidence both in relation to the earlier injury and spinal surgery involving Visy and the alleged injury with Ruskin. Although at one stage Counsel for the plaintiff attempted to tender some reports dated 1996 and 1999 without any oral evidence from Mr Hugh Weaver, she made no application in relation to any earlier report or any material following at least one or possibly two medical examinations by Mr Weaver of Mr Breen in 2007.

58 In his opening Counsel for the defendant conceded that Mr Breen had lodged a workers’ compensation claim for an alleged injury to his back on or about 21 September 1995, was off work for two days and continued to work for the defendant until December 1995 when he ceased. Mr Breen’s own evidence in that regard was very similar. In fact Mr Breen gave very limited evidence at all about his alleged injury to the back in 1995.

59 The defendant denied any injury to the back at that time. In its initial notice of rejection it referred to the report of Mr Jones justifying its rejection. However, in his report Mr Jones accepted there had been aggravation of the pre- existing injury to the back with Ruskin. Common law proceedings arising out of that claim rejection then came before the court on 11 May 2000. As stated,

it was common between the parties that the proceedings were dismissed after the claim for reasonable medical and like expenses was removed from the Statement of Claim.

60 Although Terms of Settlement were not produced by either party, it is again common that 78 weeks of weekly payments were paid to Mr Breen. The Notice of Rejection In the present claim dated 26 November 2010 (Exhibit 9) from the authorised agent states that the matter was “settled for a limited period of weekly payments with medical expenses to continue in accordance with the Act.”

61 The schedule of payments from CGU (Exhibit N) shows the medication expenses being paid or reimbursed to Mr Breen on the original 1995 claim until at least April 2010. The 2010 Notice of Rejection also refers to the fact that CGU agreed to pay for the 2010 operation by Mr Timms on the basis of Mr Brownbill’s report. The defendant called no evidence to explain or contradict evidence in this regard.

62 With these issues in mind I shall turn to the issue estoppel/res judicata issue. As I have previously stated, counsel cited decisions in Ozbilgi and Wilson but did not expand on those decisions. To my mind the decision in Derks v. R&J Fibreglass (2009) VSC 601 (esp. para 21), is more relevant. In that decision Beach J referred to the ACCC v. Australian Safeway (2001) 119 FCR 1, which I find to be more relevant in this case.

63 When the County Court proceedings came before the court in May 2000 the issues of injury, incapacity and liability for reasonable medical and like expenses were relevant based on the earlier Notice of Rejection. To use the terminology of Justice Goldberg in ACCC v. Safeway, there were issues of X plus Y, and probably plus Z as well.

64 The dismissal of that action on its face does not necessarily involve a decision as to any of those three issues. In fact, on the material before me it is clear

that the Judge did not dismiss all three issues. The claim for reasonable medical and like expenses was removed from the Prayer for Relief prior to the dismissal of the proceedings. In fact, the defendant agreed to consider, and did in fact pay, continuing reasonable medical and like expenses at least up to and including the surgery in 2010.

65 Thus, instead of the dismissal of the proceeding amounting to a dismissal of any claim for entitlement to compensation benefits it only amounted to a dismissal of the claim for weekly payments to the date of the dismissal in respect of which 78 weeks were later paid by way of settlement.

66 As Counsel for Ruskin submitted, this was probably reflective of the actual work related incapacity to then as a result of the 1995 injury with Ruskin. There is no power for any court to order weekly payments into the future anyway.

67 There are two relevant admissions by CGU, being the agreement to leave open and pay reasonable medical and like expenses after the dismissal of the action and the agreement to pay for the 2010 surgery. Such acceptances appear to me should stand as an admission that the 1995 injury had been sustained in work related circumstances. Such an admission is significant albeit not conclusive, to use the words set out in Ansett v. Taylor (at para 40). I also refer to a similar decision of Williams J in Willett v. State of Victoria (2011) VSC 354. In this case the defendant called no evidence whatsoever to explain or contradict its stated conduct.

68 By paying reasonable medical and like expenses including surgery for more than 15 years after the 1995 there is a real inference, if not an admission, that Mr Breen has continued to suffer from a work related injury to his back or work related symptoms to his back.

69 Of course between 1996 and 1999 he had retrained as an IT systems operator prior to the settlement of his County Court action in May 2000 and

later worked in that respect. Thus, it is understandable that in view of the fact that he was training or trained as an IT operator, that only a limited amount of weekly payments was paid. The cessation of weekly payments in such circumstances is not necessarily permanent (see, Fuat v. Onesteel Ltd (2010) VCC 584 at para 43). As Judge Bowman pointed out in that decision:

“The wording of the Act does not preclude a revisiting of the situation if there is a deterioration in the situation in relation to the worker’s capacity for suitable employment.” (i.e. change of circumstances)

70 In the present case it is submitted that the change of circumstances was the deterioration of Mr Breen’s back to the extent that he needed major surgery being a triple level laminectomy in September 2010. Neither counsel could point to a decision setting out as to what “change of circumstances” means. However, in this case the serious nature of such surgery I hold to be a change of circumstances entitling a “revisiting” of his right to weekly payments, he having only received 78 weekly payments to that date.

71 By admitting liability for the cost of that surgery I hold that the defendant was also liable to pay further weekly payments as well. Despite the very real concerns whether Mr Brownbill was advising that the defendant was liable for the cost of that surgery (apart from Visy) in para 13 of his report, CGU admitted liability for the costs of the surgery and thus admitted the employment was a significant contributing factor to the deterioration of that spinal injury. If not an admission, there is a very real inference to be drawn.

72 I must now consider the amount of such weekly payments. I am not satisfied that Mr Breen is entitled to weekly payments prior to his further surgery in September 2010. The only medical support for any such entitlement was the unsatisfactory medical certificates of Dr Wang. Of course, he was being assessed for such surgery during 2010. In his history to Mr McInnes he in fact said that his pain had only increased in early September 2010, not earlier.

73 I find that the triple level laminectomy meant that he had “no current work

capacity” from the date of such surgery, being 13 September 2010, and is

entitled to weekly payments from that date.

74 I agree with counsel for the defendant that he is only entitled to a further 26 weeks of payments after that date, being the balance of the primary entitlement period of 104 weeks relevant at that time for that injury.

75 As I pointed out to Counsel for the plaintiff, as at the 26 weeks date (13 March 2011) it is necessary to consider his continuing entitlement having regard to the provisions of the Act (see such cases as Spiteri v. FAI (County Court, unreported, Judge Strong, del 17 October 1997).

76 Thus I need to ask whether Mr Breen did have a “current work capacity” at that date or “no current work capacity” which was likely to continue indefinitely.

77 Mr Breen gave evidence that he did in fact work for three months in 2011 and three weeks in 2012. However, no evidence was submitted as to even approximate dates or months that he did in fact work in those periods.

78 Again, when he saw Dr McInnes on 1 December 2011 he said that his pain had increased markedly to that date of examination. Despite that stated deterioration, Dr McInnes found that Mr Breen did have a capacity to do a limited type of manual work as at that date. Certainly, his retrained occupation of an IT systems worker would seem, and I do find, to be appropriate or suitable employment. I am unable to understand Dr Wang’s reference to the chairs being “too low”

79 I have already referred to a number of matters in Mr Breen’s evidence which lack credibility, including the lack of his right leg pain prior to September 1995 and his lack of any history of back pain until December 2007 and 2008 which, as far as I am concerned, greatly contradicts his own and other doctors’ histories

80 As Dr McInnes’ report, disregarding the unsatisfactory evidence of Dr Wang, is the only medical material as to incapacity in recent years, I find that Mr

Breen is entitled to weekly payments from 13 September 2010 to 13 March 2011 which should be paid at the “no current work capacity” rates. I do not find that Mr Breen is entitled to any period of weekly payments apart

81 The order will be that he will be entitled to weekly payments at the “no current work capacity” rate from 13 September 2010 to 13 March 2011, amounts reserved.