Adams v Sinulog Pty Ltd
[2013] VCC 747
•19 June 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-00109
| HEATH D’ARCY THOMAS ADAMS | Plaintiff |
| v | |
| SINULOG PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 April 2013 | |
DATE OF JUDGMENT: | 19 June 2013 | |
CASE MAY BE CITED AS: | Adams v Sinulog Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 747 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the lumbar spine – pain and suffering and loss of earning capacity – causation
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Dahl v Grice [1981] VR 513
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Titshall QC with Mr G Coldwell | Hounslow & Associates |
| For the Defendant | Mr A Saunders | Minter Ellison |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for injury suffered him in the course of his employment with the defendant on 24 March 2006.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering and loss of earning capacity.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act.
4 There, “serious” is defined as meaning:
“(a) permanent serious impairment or loss of a body function.”
5 The body function relied upon in this application is injury to the lumbar spine.
6 The plaintiff relied upon two affidavits, sworn 2 September 2011 and 5 February 2013. The plaintiff was cross-examined. In addition, both parties relied upon medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Issues
7 Counsel for the defendant conceded that the plaintiff had suffered a serious injury. What was in issue was causation. That is, whether the 2006 work-related injury was a material cause of the plaintiff’s current presentation. The defendant submitted that the March 2009 event was the cause of the plaintiff’s pain and suffering and loss of earning consequences.
Relevant Legal Principles
8 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[1]
[1]s134AB(19)(a) of the Act
9 In order to succeed, the plaintiff must prove, on the balance of probabilities, that the injury suffered by him arose out of, or in the course of, or due to the nature of his employment with the defendant.[2]
[2]s134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph [11]
The Plaintiff’s Evidence
10 In his first affidavit sworn on 2 September 2011, the plaintiff deposes that:
· On 24 March 2006, he was assisting his father milk cows when a cow weighing approximately 800 kilograms was separated from the herd and got into the effluent tank yard. The plaintiff attempted to move the cow when he was crushed against the rails of the yard, pushing his left knee, hip, trunk, and arm into the railing of the yard. The plaintiff injured his low back and shoulders.
· He attended his general practitioner on the following Monday. He was referred to numerous doctors, underwent a medial branch block in February 2007, injections, including an epidural injection in January 2008, investigations, and physiotherapy. He was prescribed medication.
· He suffered low-back pain with pain down the back of his left leg into the foot, which he assessed at 8 out of 10.
· In March 2008, he returned to light work, working in partnership with his wife as a self-employed share farmer on a dairy farm, with significant ongoing sciatic pain daily, which he described as “a knife-like stabbing pain”, going down the left leg, made worse with bending and sitting.
· He said the aggravation of the March 2006 injury occurred while he was working on an irrigation system in March 2009. The back pain had been present since March 2006, but after working on the system he found the low-back pain was worse. After March 2009, the pain went down into the left foot constantly, with constant back pain.
· After March 2009, the plaintiff was prescribed slow-release analgesic patches. In June 2009, he underwent a discectomy and was prescribed further medication, including Endone and Tramadol.
· He has suffered sexual dysfunction. His wife left because of his anger and mood swings and because she was required to perform ninety per cent of the farm work, as well as housework and cooking. He cannot perform heavy farming work, and is now reliant on his father and younger brother for assistance with the farming work.
· He said he had limited education and was basically illiterate. He had worked on dairy farms since age thirteen. He was born deaf and some years later he developed some hearing.
· The plaintiff was advised to lose weight, because of the back pain. The plaintiff underwent weight reduction surgery.
11 In his second affidavit, the plaintiff said:
· Since March 2006, he has never been completely free of back pain. The low-back pain is constant, and on a better day there is a dull ache.
· He has attempted physical work: in February 2012, when there was major flooding in the district, he assisted with sandbagging but was bedridden for days following. In September 2012, he drove a tractor, but suffered increased symptoms.
The Plaintiff’s evidence in cross-examination and re-examination
12 The plaintiff was cross-examined and gave the following pertinent evidence:
· He attended hospitals for treatment.
·In February 2008, he asked Dr Rayner to clear him for normal duties because he had bills to pay, a wife and four children to support and no job.
·He rang WorkCover and spoke to his case manager. He told her he needed to return to work, that he had a clearance. He was told if his back became worse, it would be classed as a recurrence.
·He returned to light work in March 2008 as a self-employed dairy share farmer on a farm at Katunga. He was milking 150 cows in a herringbone shed which did not require him to bend, as in his previous work. His wife did most of the heavy work on the farm. In 2011, his wife left and now his father and brother help him on the farm.
·He agreed that between March 2008 and March 2009, he had been to the general practitioner on two occasions complaining of back pain. He said he always had a twitch in the back.
·In March 2009, when working on an irrigation system, he became aware of increased lower back pain after he had removed a plastic bucket out of the irrigation system. He said irrigating was light work suitable for a ten-year-old.
·When he squatted, he always used his right knee because he could not use his left knee.
·As at March 2009, he did not have a day free of back pain.
·In March 2009, he told Mr Leitl he had difficulty getting out of bed. He agreed he had medical treatment including epidural injections, an operation, and was prescribed medication of Endep, Panadeine Forte, Prednisolone, Voltaren and OxyContin. He said he had taken Panadeine Forte, Tramadol, Endep, Voltaren and Durogesic patches before he went to Numurkah. Apart from being prescribed medication from his general practitioner, he also attended the Warrigal Hospital and saw Mr Thomas. He was prescribed medication which he had in his possession when he went to Numurkah.
·In November 2007, when he saw Dr Rayner, he said his back had locked up, which meant it was difficult for him to get out of bed. He said in November 2007, the pain went down past his knee for the first time, which continued through to March 2009, when it became worse again.
·He reported to Dr Rayner in December 2007 that he was having difficulty walking due to his back pain and his back pain was worse with coughing.
·He said the certificates he was given by Dr Rayner between July 2007 to 26 February 2008 for WorkCover indicated that the injury he was suffering was low-back pain and left sciatica.
·He said he first suffered loss of power and pain in the left leg in 2006 when he was hit by the cow.
·He said after the accident in March 2006, he only ever did one day’s work, then he was unable to work because of his injuries. He said it was the bending that affected him.
Investigations
13 In September 2006, an MRI scan of the lumbosacral spine showed:
“1. Disc bulge at L5/S1 contains a central and left paracentral protrusion which is small, but does contact and displace the traversing S1 nerve root within the spinal canal.
2. Minor disc bulge at L4/5 does not lead to spinal canal or neural foraminal stenosis.”[3]
[3]Plaintiff’s Court Book (“PCB”) 82
14 In July 2007, an MRI scan of the left hip showed:
“1. Small hip joint effusion.
2. No labral tear is identified.”[4]
[4]PCB 87
15 In March 2009, a CT scan of the lumbar spine showed:
“Large left para-central and central disc protrusion is shown L5/S1, indenting and displacing the left proximal S1 nerve root.”[5]
[5]PCB 90
16 In May 2009, an MRI scan of the lumbar spine showed:
“Severe localised L5/S1 disc disease with a large lobulated disc protrusion impinging the central thecal sac and left S1 nerve root.”[6]
[6]PCB 93
The Plaintiff’s medical evidence
Dr M Rayner
17 On 7 February 2007, Dr Rayner, general practitioner, reported that the plaintiff consulted the Bank Place Medical Centre on 28 March 2006 complaining of pain in his right shoulder and arm after being kicked by a cow two weeks earlier. He reported having been squashed between a cow and steel fence but there was no complaint of back pain at that consultation.
18 On 31 March 2006, the plaintiff reported lower back pain due to symptoms of his previous pilonidal sinus. He was referred back to Mr Merenstein, who referred him to Mr Malcolm Thomas, stating that the lower back pain was associated with the trauma of the cow squashing the plaintiff against the fence. By the time the plaintiff saw Mr Thomas in May 2006, he was taking Panadeine Forte and Tramadol, as the pain was worse with sitting or activity. The plaintiff was treated for low-back pain on a monthly basis by doctors at the clinic.
19 In January 2007, the plaintiff reported he had been milking but he had significant pain, worse than before. He was prescribed Voltaren. Dr Rayner said the plaintiff had suffered a significant lower back problem. An MRI scan showed a disc prolapse which was treated conservatively with facet joint injections and radio-frequency denervation. It was Dr Rayner’s view that the plaintiff would be unlikely to return to full-time work in his current occupation and suggested he be re-trained in another occupation. He described him as a poor historian who at times missed appointments.
Mr David Merenstein
20 In May 2006, Mr Merenstein, general surgeon, reported to the defendant’s insurer in relation to the plaintiff’s problems with a pilonidal sinus, which he operated on in February 2002.
21 In April 2006, Mr Merenstein saw the plaintiff on referral from his general practitioner. He said the plaintiff presented with severe sacroccocygeal pain and discomfort. After surgical exploration of the pilonidal sinus scar, Mr Merenstein discounted the pilonidal sinus as a source of the plaintiff’s pain and discomfort. He said the plaintiff’s symptoms were related to his back and, accordingly, referred the plaintiff to Mr Malcolm Thomas, orthopaedic surgeon.
Mr Malcolm Thomas
22 In May 2006, Mr Thomas, orthopaedic surgeon, saw the plaintiff on referral from Mr David Merenstein, general surgeon. The plaintiff presented with low-back pain and reported being squashed by an 850-kilogram cow against a fence in March 2006. Mr Thomas said the plaintiff had low-back pain. The management should remain non-operative, and he recommended pain management and maintenance and mobility with regular exercise and correct posture. He referred him to physiotherapy.
23 In a letter to the defendant’s insurer, Mr Thomas said the plaintiff’s condition was of low-back pain which followed a workplace accident. In May 2006, he said it was premature to determine whether the impairment was permanent.
24 In August 2006, he suggested the plaintiff be referred to a spinal surgeon.
Albert Street Sports & Spinal Injury Centre
25 In May 2006, Ms Fitzgerald, physiotherapist, saw the plaintiff on referral from Mr Thomas for low-back pain which he sustained after being crushed by a cow in March 2006. She said his active lumbar range of movement was limited and he had spasm of the musculature in the lumbar region. She diagnosed a soft tissue injury which was being treated by massage, vertebral mobilising techniques and ultrasound. She said the plaintiff was unreliable in attending appointments.
Mr Greg Malham
26 In October 2006, Mr Malham, neurosurgeon, saw the plaintiff on referral from his general practitioner. The plaintiff reported having suffered low-back pain and left hip pain since being struck by a cow.
27 Mr Malham reviewed the 11 September 2006 MRI of the lumbosacral spine.
28 He said the plaintiff did not require surgical intervention for the left L5-S1 disc prolapse, as it did not account for his symptomatology. He referred the plaintiff to Mr Bruce Mitchell, musculoskeletal physician.
29 In a letter dated April 2007 to the defendant’s insurer, Mr Malham said since the work injury in March 2006, the plaintiff had suffered low-back pain and left hip pain which prevented him from returning to work. The pain was worse with movement, especially forward flexion and sitting tolerance was limited to ten to fifteen minutes, relieved by lying down. The pain radiated to the upper third of the posterior thigh and was localised to the left buttock region. It was his view that the March 2006 work injury was a significant contributing factor to the plaintiff’s ongoing pain and disability. He said the pain will continue without the recommended posterior column investigations for diagnostic and therapeutic investigations.
30 The plaintiff had a total incapacity for work and was unable to return to pre-injury employment or undergo suitable alternate employment.
Dr Bruce Mitchell
31 In February 2007, Dr Mitchell, musculoskeletal physician, examined the plaintiff on referral from Mr Malham. Upon examination, it was his view the plaintiff had multiple potential pathologies and there was a need to exclude his posterior column (facet joints and sacroiliac joints) and hip joints as potential sources of his pain. He sought approval from the defendant’s insurer to conduct a series of controlled blocks of his posterior column to see whether he had facet joint or sacroiliac joint pain.
32 In March 2007, he informed the defendant’s insurer that the plaintiff had chronic, severe, disabling undiagnosed low-back pain, that physically it was impossible for the plaintiff to help with milking and that a return to work was not an option. After undertaking an MRI scan of the plaintiff’s hip, Dr Mitchell thought that the plaintiff’s hip was a major contributor to his pain problem. He said it was not the only contributor, but it was the obvious thing to treat at that time. He said the plaintiff’s pain was continuing to worsen.
Mr Jonathon Baré
33 In November 2007, Mr Baré, knee and hip surgeon, reviewed the plaintiff on referral from Dr Mitchell. He reviewed a recent CT scan which he said confirmed the presence of a large bony femoral neck impingement lesion which needed re‑secting and that the labral tear should be debrided. He said the plaintiff’s main source of complaint was increasing lower back pain and sciatic pain whenever he coughed. He said, as this pain was not coming from the plaintiff’s hip, he preferred to see the results of the plaintiff’s lumbar spine MRI scan before he proceeded with any hip arthroscopy surgery.
Medical Centre of Numurkah
34 In March 2009, the plaintiff consulted Dr Seager, general practitioner, with ongoing low-back pain which he said commenced at work six days previously. He complained that the pain was worse with sneezing and coughing and caused pain in the left lower limb to his knee.
35 Dr Seager reported that the plaintiff had attended the practice in October 2008 complaining of left sciatic-type pain. A CT scan performed on 30 March 2009 showed a prolapse of the L5-S1 disc. He was certified unfit for work.
Dr Michael Brighton-Knight
36 In May 2009, Dr Brighton-Knight, orthopaedic surgeon, saw the plaintiff on referral from Dr Seager. It was his view the plaintiff’s MRI scan confirmed a massive disc herniation compressing the theca opposite the L5-S1 disc. He said this was the cause of the plaintiff’s pain and inability to stand upright. The plaintiff required a discectomy.
37 In a letter dated 25 May 2009, Dr Brighton-Knight informed the defendant’s insurer that he disagreed with the crucial conclusion of a report from Mr Steven Leitl, orthopaedic surgeon, who had reviewed the plaintiff. He said:
“In the report from Mr Steven Leitl he claims that ‘in my opinion (Mr Adams) developed a fresh injury to his lower back, responsible for his current back pain and left sciatica symptoms and due to a large L5-S1 disc prolapse. I believe that this does not represent a recurrence or aggravation or exacerbation of the previous injury of 24 March 2006 because he reports that there was a very substantial resolution of his back condition, enabling him to work for almost 12 month (sic) as a share farmer, milking 200 cows. He would not have been able to undertake such work if there had been any dysfunction of his lumbar spine’.
In my opinion the conclusion is erroneous because in the peer reviewed literature there is no basic science data, no radiological evidence and no animal model that demonstrates an intervertebral disc can heal. Once the annulus of the intervertebral disc is ruptured, it remains ruptured for EVER. Therefore if your company accepted liability for the initial injury it MUST as a logical consequence accept all further liability for degeneration of that particular joint.”[7]
[7]Plaintiff’s Court Book (“PCB”) 155 and 156
Mr Rodney Simm
38 In August 2011 and December 2012, Mr Simm, orthopaedic surgeon, examined the plaintiff at the request of the plaintiff’s solicitor. Mr Simm said the plaintiff’s pathology was progressive L5-S1 lumbar disc degeneration. He said the plaintiff complained of lumbar back pain shortly after the March 2006 incident when he was crushed against a fence by a cow. MrSimm said the plaintiff’s back pain at that time was presumably due to an aggravation of L5‑S1 lumbar disc pathology. That pathology was defined with an MRI scan on 11 September 2006, when it was noted that not only were there degenerative changes at L5-S1, but there was a small annular tear and central and left paracentral disc protrusion.
39 Mr Simm said the second significant reported back injury occurred in March of 2009 when the plaintiff bent over and pulled out the bucket from the irrigation pipe. This incident was associated with further disruption of the degenerate L5-S1 lumbar intervertebral disc with a marked increase in the size of the left L5-S1 lumbar disc protrusion. The protruded disc irritated and compressed the descending nerve root, causing radicular pain to extend to the left foot. Mr Simm said the L5-S1 lumbar disc degeneration with the left-sided annular disc disruption and minor disc protrusion, which was evident in 2006, was responsible for a pattern of pain which included referred pain to the left hip.
40 He noted that despite the plaintiff’s history of direct trauma to the left hip as a result of the March 2006 incident, left hip symptoms were not recorded in the contemporaneous medical reports and he did not believe the plaintiff suffered any significant trauma to the left hip. He said the MRI and CT scans of the hip showed some minor changes which were quite irrelevant to the clinical situation. It was his view the plaintiff has not ever had a significant injury to the left hip as a result of either injuries reported in the workplace.
41 It was his opinion, based on the assumption that the pathology recorded on the MRI scan of the lumbar spine dated 11 September 2006, which included a small annular tear at L5-S1 with an associated left paracentral protrusion which contacted and displaced the descending nerve root, was either aggravated or contributed to by the claimed work injury which occurred in March 2006. Further, he said that the March 2009 incident represented a progression or aggravation of the original injury. The L5-S1 lumbar invertebral disc was presumably compromised by the injury in 2006 and rendered prone to further injury and in particular to progression of the L5-S1 lumbar disc protrusion.
42 Mr Simm agreed with Mr Brighton-Knight that the lumbar invertebral disc does not have the capacity to heal and return to pre-injury level. He said once there is annular tearing and disc disruption, symptoms may subside but the structural abnormality with associated compromise of the structural integrity persists.
Mr Clive Jones
43 Mr Jones, orthopaedic surgeon, examined the plaintiff on request of the defendant’s solicitors in December 2011. Mr Jones obtained a history that prior to the injury in 2006, the plaintiff was a normally active man involved in sport and other activities without prior back symptoms. After the event, he was no longer able to assist his father in the running of the Warrigal property. It was his opinion the plaintiff suffered a significant work-related injury as alleged.
44 Mr Jones did not believe the plaintiff’s left hip was ever injured, as there were no real hip symptoms. An examination revealed no restrictions and the x‑rays of the pelvis showed no abnormality in either hip joint. It was his view the plaintiff had sustained injury to his lumbar spine only. It was his opinion the plaintiff’s current situation related entirely to the injury the plaintiff suffered on his father’s farm.
Mr Michael Shannon
45 In November 2010, Mr Shannon, orthopaedic surgeon, examined the plaintiff at the request of the defendant’s insurer. The plaintiff told Mr Shannon that in March 2006, he was jammed by a cow against the rail of a fence. He continued to work for four or five hours until lunchtime, but after lunch he was unable to get up. He did little work after 2006 and tried to help his father when he could. In 2008, he became a share farmer on a dairy farm in Katunga. He was doing very little work and his wife did most of the work.
46 His back became worse in 2009. He said the work at Katunga was quite easy. He was walking around a paddock and lifted a 5-kilogram water door and developed increased pain in the centre of the low back, radiating down the left leg.
47 It was Mr Shannon’s opinion that the plaintiff sustained injury to his low back in the incident in March 2006. All of the investigations of the lumbar spine showed evidence of a left-sided lumbosacral disc prolapse. Mr Shannon said the disc prolapse never completely resolved, although the plaintiff’s symptoms improved to the point where he was able to do some physical work. It was Mr Shannon’s opinion that the plaintiff sustained a further aggravation in the course of his work in Katunga and that his back was worse following the incident. The plaintiff had increased left sciatica and an increase in the size of the disc prolapse, according to the MRI scans.
48 Mr Shannon said there were reasonable grounds for apportionment of his impairment, in that clearly he had an injury in 2006 with some sciatic symptoms but no definite radiculopathy and subsequently, he had fairly definite evidence of radiculopathy leading to surgery.
Dr Jason Spencer
49 In December 2012, Dr Spencer, general practitioner at the Medical Centre of Numurkah, said the plaintiff suffered:
“A chronic mechanical low back pain due to degenerated L5-/S1 disc prolapse and nerve compression causing sciatica from his work injury in 2006. I believe his condition is as a consequence of his back injury sustained on 24/3/2006.”
The Defendant’s medical reports
Mr Steven Leitl
50 Mr Leitl, orthopaedic surgeon, examined the plaintiff in August 2007 and April 2009 at the request of the defendant’s insurer. In April 2007, Mr Leitl diagnosed an L5-S1 disc prolapse and left hip-labral tear. Mr Leitl said that a disc prolapse at L5-S1 can produce symptoms of back pain and pain in the region of the left buttock and posterior left thigh. It was his view that the plaintiff had definitive evidence of left hip irritability suggesting that the labral tear was partly responsible for his current symptoms.
51 In April 2009, Mr Leitl said that the plaintiff had developed a fresh injury to his lower back, responsible for his current back pain and left sciatic symptoms due to a large L5-S1 disc prolapse. He said that this did not represent a recurrence or aggravation or exacerbation of the previous injury of March 2006 because the plaintiff reported there was a substantial resolution of his back condition enabling him to return to work for almost twelve months as a share farmer, milking 200 cows. Mr Leitl said he would not have been able to undertake such work if there had been any dysfunction of his lumbar spine.
52 In June 2009, Mr Leitl commented on Mr Brighton-Knight’s report of 14 May 2009. Mr Leitl said Mr Brighton-Knight did not consider the clinical features regarding the plaintiff’s original and subsequent injuries and the fact that the plaintiff was able to work as a share dairy farmer milking 200 cows for twelve months with minimal, if any, back or leg pain and then developing severe back pain and left sciatica. Accordingly, it was his view that the plaintiff’s current condition did not relate to his employment with the defendant but represented a fresh injury.
Certificate of Capacity
53 Dr Rayner provided Certificates of Capacity in relation to the plaintiff’s low-back pain and left sciatica for the period 13 July 2007 through to 25 February 2008. He imposed work restrictions of light duties varying from two to four hours a day, three to five days a week. In the period 29 January 2008 to 26 February 2008, the doctor certified him for light duties only, able to work three hours a day, three days a week.
Video Surveillance
54 I was shown no video of the plaintiff, even though video surveillance was referred to in the Defendant’s Court Book. I can only infer that it did nothing assist the defendant’s case
Credit of the Plaintiff
55 The plaintiff answered questions to the best of his ability. His ability to answer questions was comprised by his limited education. He answered questions in a forthright manner. A number of the doctors referred to the fact that the plaintiff was a poor historian. I accept that is consistent with his evidence in court, but is explained by his basic level of education and hearing impairment. I accept that he was confused about the timing of the medication he was taking prior to March 2009. He made concessions. He impressed me as a witness of truth.
Analysis of the Evidence
56 It was not in issue that the plaintiff was injured at work in March 2006. The plaintiff consulted his general practitioner complaining of low-back pain for which he was treated. He was referred to a number of specialists. Dr Merenstein said the plaintiff’s pain was related to his back, and referred him to Mr Thomas, orthopaedic surgeon. Mr Thomas accepted the plaintiff’s condition was work related. He recommended pain management, referred him to physiotherapy and to Mr Malham, neurosurgeon. Mr Malham said the 2006 work injury was a significant contributing factor to his ongoing mechanical low-back pain and left hip pain. He accepted the plaintiff had a total incapacity and was unable to return to pre-injury employment or undergo suitable employment. Mr Malham referred the plaintiff to Dr Bruce Mitchell, musculoskeletal physician. Dr Mitchell saw the plaintiff over a number of occasions and whilst he reported that the plaintiff had chronic, severe, disabling undiagnosed low-back pain, he thought that the plaintiff’s hip was a major contributor to his pain problem. Dr Mitchell said that a return to work was not an option.
57 Dr Mitchell referred the plaintiff to Mr Jonathan Baré, knee and hip surgeon. Mr Baré said the plaintiff complained of increased lower back pain and sciatic pain whenever he coughed. Mr Baré said the pain was not coming from the plaintiff’s hip, and he was not prepared to perform a hip arthroscopy until he had seen an MRI scan. Mr Baré’s view about the hip was shared by Dr Brighton-Knight, Mr Simm and Mr Jones.
58 The plaintiff was treated by his general practitioner between March 2006 until February 2008. During that period, his general practitioner was providing Certificates of Capacity in relation to the plaintiff’s low-back pain and left sciatica for the period 13 July 2007 to 25 February 2008. He imposed work restrictions of light duties varying from two to four hours a day, three to five days a week. In the period 29 January 2008 to 28 February 2008, Dr Rayner certified him for light duties only, able to work three hours a day, three days a week.
59 I accept that the medical evidence is that between March 2006 and the end of February 2008, the plaintiff was reporting pain in his low-back region with left sciatic pain. The plaintiff’s injury was work related. The plaintiff was certified unfit for work.
60 The plaintiff’s evidence was that in February 2008, he needed to work, he had bills to pay and a wife and four children to support. He told his general practitioner that he was moving to Numurka and requested that he be cleared for normal duties. This is confirmed in the general practitioner’s records and is consistent with what he told Mr Simm. I accept the plaintiff’s evidence. It would be unusual for a doctor to be providing certificates of capacity for nine hours per week then clear the plaintiff for normal duties the following month. The plaintiff’s evidence was that he contacted the case manager and was told if he returned to work and injured himself again, the injury would be treated as an aggravation.
61 The plaintiff said he obtained employment as a share farmer in Katunga. His evidence was that he and his wife worked in partnership; she performed most of the work and he performed the light work. Further, working in Katunga on a dairy farm was lighter work than the work he had done with his father, because they were only milking between 100 and 200 cows, it was a herringbone dairy farm which did not require him to bend and stoop as in his previous employment and there was less land to maintain.
62 The plaintiff’s evidence as to pain was that, as of March 2009, he had not had a day free of back pain. The medical evidence was that in October 2008, he consulted a general practitioner in Numurkah complaining of back pain. The notes record:
“Pain returned yesterday. No injury … back pain has been OK since March this year until yesterday.”
63 Two weeks later the notes record “low-back pain better overall but still getting sciatica”. The plaintiff was prescribed medication at both consultations.
64 The plaintiff told doctors about the pain he suffered whilst at Katunga. He told Mr Simm that while he was working at Katunga his back was painful and he took medication. He did some of the milking but was disabled with the pain.
65 He told Mr Leitl he managed his work quite well but had an occasional “twitch” in his back and lower leg. He told Mr Shannon he was doing little work; his wife did most of the work at Katunga.
66 The plaintiff told the Court that when watering he squatted down on his right knee because he could not squat on his left knee.
67 In March 2009, after watering, which he described as a very light job, he became aware of further problems with his back.
68 He attended the general practitioner and a CT scan was performed in March 2009, which showed a prolapse of the L5-S1 disc. In May 2009, Dr Brighton-Knight saw the plaintiff on referral from his general practitioner and confirmed, after viewing the MRI scan, a massive disc herniation compressing the theca opposite the L5-S1 disc. He said the plaintiff needed a discectomy. Ultimately a discectomy at the left L5-S1 was performed by Mr Patrick Byrne in June 2009.
69 The issue for me to determine is whether the 2006 injury was a material cause of the plaintiff’s current presentation. Counsel for the defendant submitted the question of the plaintiff’s back between the incidents of March 2006 and March 2009 is a contest between the plaintiff’s recollection of events and the documentary evidence. Whilst I accept that there are some inconsistencies between what the plaintiff said as to the type of medication he was taking before March 2009 and what was recorded in some of the doctor’s medical records, ultimately I rely upon the up-to-date medical views expressed by Mr Simm, Mr Jones, Mr Shannon and Mr Leitl.
70 Mr Simm said on the basis that the MRI scan of the lumbar spine dated 11 September 2006, which showed a small annular tear at L5-S1, was either aggravated or contributed to by the work injury which occurred in March 2006, he thought that the injury which occurred in March 2009 represented a progression or aggravation of the original injury. In his second report, he said that the plaintiff’s lower back pain and left lower limb pain became increasingly problematic after the March 2006 injury. He said the March 2006 injury involved a significant physical injury which could have been responsible for aggravating the pre-existing L5-S1 lumbar disc degeneration and either causing or aggravating the left L5-S1 lumbar disc protrusion as demonstrated on the MRI scan dated 11 September 2006. Mr Simm agreed with Dr Brighton-Knight that the lumbar intervertebral disc does not have the capacity to heal and return to pre-injury level. He said once there is an annular tear and disc disruption, symptoms may subside, but the structural abnormality with associated compromise of the structural integrity persists.
71 Counsel for the defendant submitted that Mr Simm obtained an erroneous history of the plaintiff’s condition when he commenced work at Katunga, namely the level of medication he was taking and the pain he was suffering while working at Katunga. On the strength of the erroneous history, he reached his conclusion that the back injury of March 2006 could have been responsible for aggravating the pre-existing L5-S1 lumbar disc degeneration and causing or aggravating the left L5-S1 lumbar disc protrusion as demonstrated on the MRI scan of 11 September 2006.
72 The difficulty with that submission is that first, the history I was referred to included a further paragraph, which Counsel for the defendant did not refer to. I took the view that Mr Simm had a reasonable understanding of the factual history but may have had an inaccurate picture of the nature of the medication the plaintiff was taking. Secondly, the history was referred to in Mr Simm’s first report. In that report, Mr Simm considered the relationship between the current condition and the incident of injury of March 2006. His conclusion was based upon the pathology and the medicine; there was no reliance between the history and the conclusion. In his second report, Mr Simm stated his conclusion (referred to above) which qualified his conclusion in the first report.
73 A further submission of the defendant’s Counsel was that Mr Simm’s evidence was “Could have been responsible for aggravating the pre-existing L5-S1 lumbar disc region”. In these circumstances, the plaintiff has not established the relevant causation. The law is that experts are not required to establish a causal connection between the act and the injury to the requisite degree of probability; that is for the Court to decide as an ultimate issue, taking account of the evidence of all experts as to the existence of a link between the medical condition and the act.[8] Accordingly, I do not accept the defendant’s submission in respect to Mr Simm’s evidence.
[8]Dahl v Grice [1981] VR 513 at 522
74 Mr Clive Jones obtained a history that prior to the 2006 injury, the plaintiff was a normally active man involved in sport and other activities without prior back symptoms. It was his view that the plaintiff had sustained an injury to his lumbar spine only and that the plaintiff’s current situation related to the injury the plaintiff suffered on his father’s farm in 2006. He did not refer to the 2009 injury.
75 Mr Michael Shannon, orthopaedic surgeon, accepted that the plaintiff had been injured in March 2006 and suffered a left-sided lumbosacral disc prolapse which never completely resolved, although he was able to do some physical work. He accepted that the plaintiff suffered a further aggravation in the course of his self-employment as a share farmer in 2009, namely the increase in the size of the disc prolapse and the increased left sciatica. He thought the absence of left ankle reflex was attributable to the second injury.
76 Counsel for the defendant relied upon the medical evidence of Mr Leitl, orthopaedic surgeon, who examined the plaintiff in August 2007 and in 2009. Mr Leitl said the plaintiff had developed a fresh injury to his lower back in 2009 which was responsible for his current back pain and left sciatic symptoms due to a large L5-S1 disc prolapse. He said the 2009 injury did not represent a recurrence or aggravation or exacerbation of the March 2006 injury because the plaintiff reported there was a substantial resolution of his back condition enabling the plaintiff to return to work for almost twelve months as a share farmer milking 200 cows. Mr Leitl said the plaintiff would not have been able to undertake such work if there had been any dysfunction of his lumbar spine. I did not accept that Mr Leitl obtained a full history. Mr Leitl was not informed that the plaintiff’s wife was doing ninety per cent of the work on the farm, nor was he informed that the plaintiff was performing light work only.
77 I reject the submission of Counsel for the defendant that between March 2006 and March 2009, the plaintiff’s claim of significant ongoing pain was not made out. All medical treaters accepted the plaintiff suffered low-back pain and that he could not work at his pre-injury work. I accept his explanation for returning to work. Further, I accept that the work he was doing in Katunga was lighter work. His evidence was that the farm was smaller, there were fewer cows to milk, less land to care for and his wife performed the heavy work. He attended the general practitioner on two occasions for treatment for his back in October 2008 and was prescribed medication on both occasions. The plaintiff’s evidence was that he had accumulated medication, which he used while working in Katunga. While I accept his respective general practitioners recorded limited prescriptions, the plaintiff’s evidence was that he obtained medication from the Warragul Hospital and Mr Thomas. No doctor suggested the plaintiff was not genuine in his complaints.
78 Having observed the plaintiff in the witness box, unless the plaintiff was asked specific questions, I formed the view that he would not offer information of his own initiative. Based on the medical evidence of Mr Simm, supported by Mr Shannon and Dr Spencer, together with the plaintiff’s evidence, I conclude that there was a causal connection between the March 2006 injury and the plaintiff’s accepted serious injury.
79 Counsel for the defendant submitted that the March 2009 incident was more serious in nature than the March 2006 incident and is therefore more likely to have caused the plaintiff’s injury. This is supported by the seriousness of the treatment he received after the 2009 incident. I do not accept that submission. The plaintiff’s evidence was that he was engaged in light work at the time of the 2009 incident. Further, the majority of the doctors accepted that the 2006 incident was a cause of the plaintiff’s injury.
80 Accordingly, I accept that on the basis of all the evidence, there was a causal connection between the March 2006 injury and the accepted serious injury to the plaintiff.
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