Agnew v C.E. Bartlett Pty Ltd
[2009] VCC 110
•2 March 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI 07 01778
| PETER WILLIAM AGNEW | Plaintiff |
| v | |
| C.E. BARTLETT PTY LTD | Defendant |
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| JUDGE: | Wodak |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 12, 13 August 2008 |
| DATE OF JUDGMENT: | 2 March 2009 |
| CASE MAY BE CITED AS: | Agnew v C.E. Bartlett Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0110 |
REASONS FOR JUDGMENT
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Catchwords: serious injury application – s134AB Accident Compensation Act – physical injury – pain and suffering damages – pecuniary loss damages
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Philbrick SC | Robinson Gill |
| with Mr J Carmody | ||
| For the Defendant | Mr I McDonald | Minter Ellison |
Introduction:
1 During late 1999, William Peter Agnew began working for C E Bartlett Pty Ltd, as a factory hand. Bartlett manufactured tarpaulins used on farms, in dams and in trucking. On 22 August 2001, whilst at work Mr Agnew injured his lower back and had a tingling sensation in his right leg.
2 Mr Agnew claims that he has a serious injury, causing permanent or long term impairment or loss of function of his low back arising from this incident. He seeks leave to commence a proceeding for pain and suffering damages and for pecuniary loss damages resulting from his injury.
The evidence:
(a) for the Plaintiff
3 Mr Agnew was required for cross examination. His was the only oral evidence during the hearing. Mr Agnew swore two affidavits in support of his application[1].
[1] They were sworn on 13 December 2006 (the first affidavit), PCB pp10-21, and on 21 May 2007 (the second affidavit), PCB pp33-34
4 In addition, Mr Philbrick tendered the following material in support of Mr Agnew’s application:
No Author Description Date PCB pages
1. Mr J Bourke Medical report 31-12-02 051-053 2. Mr R Carey Medical report 04-08-04 054-056 3. Mr D de la Harpe Medical report 15-08-03 057-058 4. Dr R Horsley Medical report 13-02-08 059-067 5. Mr K King Medical report 26-02-08 068-074 6. Dr C Ryan Medical report 30-04-03 075-077 7. Dr C Ryan Medical report 30-12-02 078 8. Dr C Ryan Medical report 23-09-03 079 9. Dr C Ryan Medical report 14-01-04 080-081
10. Dr C Ryan Medical report 13-04-04 082-083 11. Dr C Ryan Medical report 04-07-07 084-085 12. Mr M Shannon Medical report 19-03-04 086-088 13. Dr N Strauss Medical report 05-02-08 089-096 14. Mr D Wallace Medical report 25-10-02 097-098A 15. Mr D Wallace Medical report 28-01-03 099-101 16. Mr D Wallace Medical report 22-05-03 102-103
17. Dr N Humphries Radiology report 16-03-07 104
18. St John of God Medical records Undated 105-136
19. Taxation summary 137
20. William P Agnew Worker’s claim 18-03-02 138-139 21. Noel Trengrove Employer claim report 18-03-02 140-141 22. William P Agnew Worker’s claim form 18-03-02 142-144 23. Noel Trengrove Employer claim report 26-03-02 145-146
24. Max Bartlett Register of injury 23-08-01 147 25. Noel Trengrove Register of Injury 20-03-02 148
26. Angela Braid Closure report 07-04-04 149-150 27. K King CT report 20-03-02 151
(b) for Bartlett:
5 Mr McDonald tendered the following:
No Author Description Date PCB pages
1. Dr M Baynes Medical report 20-03-07 001-004 2. Dr M Baynes Medical report 24-07-08 005-007 3. Dr A Miller Medical report 17-04-02 008-010 4. Mr B Davie Medical report 21-03-07 011-013 5. Mr B Davie Medical report 16-01-08 014 6. Mr R Carey Medical report 04-08-04 015-017 7. Mr D Chamberlain Medical report 16-09-02 018-020 8. Mr D Chamberlain Medical report 15-04-03 021-023 9. Mr D Chamberlain Medical report 19-08-03 024-027
10. Mr D Chamberlain Medical report 25-02-04 028-030 11. Dr L Fail Medical report 06-10-03 031-034 12. Susan Martin Vocational assessment 22-03-07 035-055 13. Angela Braid Vocational assessment 26-02-04 056-063
14. Shane McConville Rehabilitation report 13-01-03 064
15. Shane McConville Rehabilitation report 14-02-03 065-066
16. Shane McConville Rehabilitation report 27-03-03 067 17. Shane McConville Rehabilitation report 16-04-03 068 18. Shane McConville Rehabilitation report 27-05-03 069 19. Shane McConville Rehabilitation report 30-06-06 070 20. Shane McConville Rehabilitation report 04-08-03 071 21. Shane McConville Rehabilitation report 29-09-03 072
22. Shane McConville Rehabilitation report 01-10-03 073-074
23. Shane Miller Closure report 24-01-04 075
Mr Agnew’s background:
6 Mr Agnew was born in 1964, in Victoria, and raised as an orphan. He attended school until the age of 15 to year seven, which he did not complete[2]. He found school difficult. He spent some time in a detention centre. Mr Agnew has limited literacy and numeracy skills[3].
[2] see transcript p22
[3] see transcript pp22-23
7 After leaving school, Mr Agnew found work washing cars, as an itinerant seasonal worker, as a hospital orderly and as a cleaner. He was then unemployed for a few years, before finding work at a sawmill as a mill hand and labourer from about 1984, for about two years. During the 1980’s or 1990’s he had some back pain, for which he had some heat treatment and a few days off work before resuming full duties.
8 Mr Agnew also worked as a machine operator and fork lift driver, and in other manual semi skilled jobs.
9 In the late 1980’s, Mr Agnew’s relationship broke down, and he had the care of three young children. From 1991 until 1996, he received social security benefits and cared for the children. He did some seasonal fruit picking and odd jobs in that time. In 1996, Mr Agnew began a new relationship with his present partner, who had four children of her own. Mr Agnew completed a TAFE course to improve his computer skills, and found work with a car wrecking business as a dismantler, stripping cars.
10 In late 1999, Mr Agnew began working for Bartlett, as a factory hand. He worked full time, and there was plenty of overtime. He continued in this employment until the time of injury.
The incident in which Mr Agnew was injured:
11 On 22 August 2001, Mr Agnew was instructed to obtain a pallet. He and a fellow worker obtained the pallet, which they picked up and carried. They had to take the pallet through a door, and Mr Agnew describes what then happened:
“It was an awkward fit. I turned sharply to make sure that I could get the pallet in through the door properly and as I did so my right foot slipped off to the right. I struggled to keep my footing so that I could hold onto the pallet and keep it upright. As soon as we got inside I put the pallet down and told the other worker to go and get the forklift. Then I sat down. I felt pain in my lower back and I felt a tingling sensation in my right leg.”[4]
[4] See Mr Agnew’s first affidavit, paragraph 16, PCB p14
12 Mr Agnew reported the incident, and went to St John of God Hospital. He was advised that he had strained his back, and was given two weeks off work. He resumed work, on light duties for two to three weeks, despite continuing lower back pain, and problems with his right leg. He then began operating the welding machine in making tarpaulins, and had constant lower back pain. He worked from October through to December 2001, which was a busy time for Bartlett.
13 Over the Christmas period, Mr Agnew took some additional leave, hoping that the rest would benefit him. When he resumed work, Mr Agnew found that his lower back pain was worsening.
14 On 14 March 2002, Mr Agnew was sewing belts, when his right leg became numb, and lost strength. He informed his team leader, and sat down. His left leg also began to go numb. He saw his doctor, who put him off work, and referred him to Mr Bourke, orthopaedic surgeon. A number of conservative measures were tried, without any long term success. Surgery was considered, but Mr Agnew decided against it.
15 Mr Agnew has not worked since 14 March 2002. He has had a range of conservative medical treatment. He has discussed spinal surgery particularly with Mr de la Harpe, but decided against it.
16 In evidence, Mr Agnew was asked about the treatment and medical advice he had received:
“I think you last saw Mr de la Harpe in June 2003, that's what he says in his
report? --- Okay.
So that's about five years ago? --- I guess, yes.
Yes. And in that five years you haven't had much in the way of treatment at all,
have you? --- No.
You have been living in the, I will get this right, you have been living in the
Bendigo area now for about three years? --- Yes.
Do you have a GP that you see in the Bendigo area in relation to your back? ---
No.
No? So if you do need to see a GP, you drive back to Ballarat to see Dr Ryan? --
- Yes.
And how often would you say you see him? --- I haven't been to see Dr Ryan for a long time. Basically the way I seen it is he couldn't do much more for me, and we have tried numerous different tablets and stuff and painkillers and none of them agreed with me and none of them worked.
You stopped taking painkillers some years ago? --- Yes.
You stopped taking anti-inflammatory medication some years ago? --- Yes.
You stopped going to physiotherapy some years ago? --- Yes.
Your doctors at various stages have talked about using a back brace, do you use
a back brace? --- Yes.
How often do you use that? --- Not very often because it makes it actually worse, so when it gets really bad I will use it, but if I have it on for too long it actually makes it worse.
Do you do any exercises to assist maintaining your fitness and back function? --- Well I try to on the lounge room floor, I lay down on the lounge room floor and just do little exercises and that, but other than that I usually have like a bath with some mineral salt type things in it and use a heat pack.”[5]
[5] transcript pp38-39
17 Mr Agnew has not sought work since 2003[6]. He said that he currently has symptoms in both of his knees as well as in his neck[7].
[6] transcript p40
[7] transcript p41
The medical evidence relied on by Mr Agnew:
18 Mr Bourke, orthopaedic surgeon, first saw Mr Agnew, on referral by Dr Ryan, on 9 April 2002[8]. From viewing x rays and a CT scan, Mr Bourke saw that Mr Agnew had a small central and right sided L4-5 disc bulge, and spondylolisthesis at L5-S1. Mr Bourke diagnosed right sided sciatica, and favoured conservative treatment. When there was no improvement in Mr Agnew’s symptoms one week later, Mr Bourke prescribed a single caudal injection, self management techniques and traction from a physiotherapist.
[8] See Mr Bourke’s report PCB pp51-53
19 The injection performed on 21 May 2005 temporarily stopped Mr Agnew’s leg pain, although his low back pain remained. A further caudal injection was given on 8 July 2002, which once more relieved Mr Agnew’s leg symptoms in the short term.
20 On 5 August 2002, Mr Bourke reviewed Mr Agnew, and concluded that the injections had provided only short term relief, and that physiotherapy had not assisted Mr Agnew. Mr Bourke last saw Mr Agnew on 30 August 2002.
21 Mr Carey, an orthopaedic surgeon examined Mr Agnew on 4 August 2004. He considered that Mr Agnew had sustained a lower back injury in August 2001, with worsening symptoms until March 2002, resulting in disc protrusion at L4-5 level. There were degenerative changes at L4-5 which he observed on an MRI taken on 8 August 2002. Mr Carey noted that Mr Agnew complained of right sciatic symptoms, but made no objective findings of radiculopathy[9].
[9] See Mr Carey’s report, PCB pp54-56
22 Dr Ryan, general practitioner, first saw Mr Agnew with a complaint of low back pain on 19 February 2002, following an injury at work in August 2001. He ordered a CT scan, which showed an L4-5 right sided disc bulge. Dr Ryan referred Mr Agnew for physiotherapy, which brought little relief, and then referred Mr Agnew to Mr Bourke, and later to Mr Wallace. Dr Ryan wrote that:
“Mr Agnew’s low back pain is considered to be of a chronic nature and he has been referred to K T M Consulting to help him look for suitable alternative work.”[10]
[10] See Dr Ryan’s report, PCB p78
23 Dr Ryan reviewed Mr Agnew on 8 April 2003, when he still experienced low back pain and pain down his right leg. Dr Ryan did not think that Mr Agnew’s symptoms had improved “at all” from when he first presented on 19 February 2002[11].
[11] See Dr Ryan’s report, PCB p76
24 Dr Ryan thought that Mr Agnew’s work was a significant contributing factor to his injury, and that he could not return to his previous employment. He thought that Mr Agnew’s incapacity would exist over the long term. He regarded Mr Agnew as able to perform other suitable work, where there was no heavy lifting or prolonged sitting in the one position.
25 Later, Dr Ryan wrote that:
“Because of lack of improvement in Mr Agnew’s symptoms, I do not see him being able to return to his previous work in the long term. I am unclear at this stage regarding his ability to return to any form of work.”[12]
[12] See Dr Ryan’s report, PCB p79
26 Most recently, Dr Ryan wrote that as Mr Agnew was unable to resume his previous duties, and could not perform alternate work, as he could not sit or stand for prolonged periods:
“…there are no duties which he would be expected to be able to complete.”[13]
[13] See Dr Ryan’s report, PCB p85
27 Mr Wallace, neurosurgeon, first saw Mr Agnew, on referral from Dr Ryan, on 24 September 2002. He diagnosed a posterolateral disc prolapse at L4-5 on the right side, causing right sided sciatica. There was also spondylolisthesis at L5-S1, which was of long standing, without evidence of nerve root compression.
28 Mr Wallace thought it likely that in the August 2001 incident, Mr Agnew ruptured a lumbar disc, and that in the March 2002 episode, there was either a disc herniation of the ruptured disc or an increase in the size of the prolapse, causing the right sided sciatica. He did not consider that the pre- existing spondylolisthesis contributed to Mr Agnew’s symptomatology. He thought that Mr Agnew would remain susceptible to back and leg pain as a result of the August 2001 incident, and that he should avoid any heavy work in the future[14].
[14] see Mr Wallace’s report, PCB p98
29 Mr Wallace considered that Mr Agnew’s work was the major contributing factor to his presenting symptomatology.
30 In April 2003, Mr Wallace reviewed Mr Agnew, who presented with the onset of left sided sciatica to accompany the symptoms he had previously reported in his right leg. Mr Wallace wrote that Mr Agnew had an:
“…absolutely genuine problem and because there is both the combination of nerve root compression in the back and some instability at the level above the spondylolisthesis, which is in effect a stress fracture of the pars interarticularis of L5, I have referred him to a spinal fusion expert, Mr David de la Harpe…to see whether he requires a spinal fusion procedure.”[15]
[15] see Mr Wallace’s report, PCB p102
31 Mr Wallace thought it unlikely that Mr Agnew could resume his normal employment. He may manage part time light work, without excessive bending or twisting of the spine, or handling of heavy weights, or getting in and out of vehicles on a regular basis, and in which there was the capacity to sit or lie down when he needed to[16].
[16] see Mr Wallace’s report, PCB p102
32 On 2 June 2003, Mr de la Harpe, orthopaedic and spinal surgeon saw Mr Agnew, on referral by Mr Wallace, neurosurgeon. He considered that Mr Agnew was genuine. After examining Mr Agnew, Mr de la Harpe viewed the MRI, which showed a degenerate L4-5 disc with right sided prolapse. He thought that this explained the right sided leg pain and incapacitating back pain.
33 Mr de la Harpe discussed surgical options with Mr Agnew, and advised continuing with conservative management while he considered whether to submit to surgery. Mr de la Harpe thought that Mr Agnew could manage security patrol duties, car sales work or car spare parts sales work but not those of a school or passenger bus driver, taxi driver, food van driver or console operator. He thought that Mr Agnew could engage in assembly work, provided that he was not asked to lift weights of more than 5 kg[17].
[17] See Mr de la Harpe’s report PCB pp57-58
34 Mr Shannon provided another surgical assessment, after examining Mr Agnew on 12 March 2004. He thought that Mr Agnew suffered from pre- existing spondylolisthesis and possibly pre-existing disc degeneration. He described the incident in August 2001 as causing the development of back pain and sciatica, without any objective signs of radiculopathy. He did not consider that surgery was indicated, and thought Mr Agnew’s condition was stable[18].
[18] see Mr Shannon’s report, PCB p87
35 Dr Horsley, occupational physician, saw Mr Agnew on 13 February 2008. She was provided with copies of reports of Mr Wallace, Mr Bourke, Mr de la Harpe, Mr Shannon, Dr Ryan and other materials. Mr Agnew provided a history, including the episode of back pain in about 1983/84, and then no further lumbar spine symptoms until 14 March 2002[19].
[19] see Dr Horsley’s report, PCB p59
36 Mr Agnew did not mention any incident on 22 August 2001, although Mr Agnew’s description of this incident is contained in the copy reports provided to Dr Horsley, including a copy of Mr Agnew’s first affidavit. Dr Horsley discusses the 22 August 2001 incident in her report[20].
[20] PCB p62
37 Mr Agnew reported to Dr Horsley that he suffers chronic back pain, with some discomfort radiating down his right leg. He said that he can sit for about 15-20 minutes, and static standing was limited to 15-20 minutes. His walking tolerance was about 5-10 minutes, and he could drive a car for about 15-30 minutes.
38 On examination, Dr Horsley detected a mild loss of lumbar lordosis, and what she described as “fear avoidance behaviour”, and some limitations in movement. She diagnosed discal disruption at L4-5, progressing to disc protrusion, with radicular pain and radicular signs down the right leg. There was also constitutional chronic bilateral pars defects at L5, consistent with spondylolisthesis. She thought that Mr Agnew had developed a chronic pain syndrome and that he was significantly deconditioned. She considered that his symptoms would persist, and that his prognosis for resuming work was poor.
39 Dr Horsley accepted that the events described and Mr Agnew’s clinical presentation were consistent. Her opinion was that he suffered a disc disruption in August 2001 progressing to a disc protrusion in March 2002. It was her opinion that Mr Agnew’s work was a significant contributing factor. She assessed Mr Agnew as fit for limited work, without over-reaching, pushing or pulling, no lifting of more than 10-12 kgs permanently, or lifting more than 5 kgs repetitively, and other physical restrictions[21].
[21] see Dr Horsley’s report, PCB pp65-6
40 Dr Horsley thought that Mr Agnew had little capacity for work, and that in order that he could return to work:
“…his fear avoidance behaviour would need to be addressed, his physical tolerances greatly improved and vocational options explored with considerable retraining.”[22]
[22] see Dr Horsley’s report, PCB p66
41 Dr Horsley assessed Mr Agnew as permanently physically unfit for work as a labourer, welder or factory hand, but able to perform part time manual work, subject to what Dr Horsley describes as “considerable” restrictions. In her opinion, Mr Agnew had no realistic work capacity, permanently. She did not consider that he could work as a delivery driver, because of the physical requirements of that type of work. She thought that he may be capable of motor vehicle and parts sales, or sales representative work. He would need considerable retraining, which he would be unable to engage in unless his physical tolerances improved. She thought that this would have been more capable of achievement in 2002 than at the present time. If successfully retrained, Dr Horsley assessed Mr Agnew’s capacity as being for 15-20 hours per week[23].
[23] see Dr Horsley’s report, PCB p67
42 Mr King, orthopaedic surgeon, examined Mr Agnew in late 2007 or early 2008. He regarded Mr Agnew as a clear and straightforward historian, who had suffered an acute lower back injury on 22 August 2001 to one or more of his lumbar discs and associated ligamentous structures. He considered that the major damage was to the L4-5 disc, to which there was a small central and right sided disc prolapse. Mr King considered that the localised injury on 22 August 2001 was confined to the L4-5 lumbar disc, and that Mr Agnew’s disabling symptoms of low back pain and sciatica emanate from there. In this respect, he agrees with the opinions of Mr de la Harpe, Mr Bourke and Mr Wallace.
43 Mr King described Mr Agnew as chronically and seemingly severely disabled by constant low back pain and right sided sciatica. He conceded that the level of disability was rather greater than would be expected from the incident on 22 August 2001. Despite that he regarded Mr Agnew as a very sensible and well motivated person, who was permanently unfit for moderately heavy unskilled manual work[24].
[24] see Mr King’s report, PCB p71
44 Mr King regarded Mr Agnew as totally and permanently incapacitated from resuming work of any sort that he was accustomed to performing[25].
[25] see Mr King’s report, PCB p73
45 On 5 February 2008, Mr Agnew was seen by Dr Strauss, psychiatrist. He concluded that there was significant evidence that Mr Agnew had sustained a work related physical injury. He thought that Mr Agnew had developed a mild to moderate psychiatric reaction to his physical condition. He reasoned that as Mr Agnew’s physical condition was work related, so too was his psychiatric reaction to it. Dr Strauss diagnosed a chronic adjustment disorder with mixed anxiety and depressed mood secondary to his physical condition. He excluded any psychological causative component relating to Mr Agnew’s difficult upbringing and development.
46 Dr Strauss, together with a number of other medical examiners, considered Mr Agnew to be genuine in his presentation. He did not consider that Mr Agnew had any work incapacity on psychiatric grounds.
The medical evidence relied on by Bartlett:
47 An occupational health consultant, Dr Miller examined Mr Agnew on 16 April 2002. Clinical examination revealed a mild to moderate disability of Mr Agnew’s back, but he found no evidence of nerve root involvement. He thought that Mr Agnew’s employment with Bartlett was implicated as a significant contributor to the injury. He considered that Mr Agnew had most likely sustained a lumbar intervertebral disc strain and or a facet joint strain. He thought that within three months there would be further sustained improvement, although conceding that Mr Agnew may have a residual slight permanent back disability.
48 He assessed that Mr Agnew was then unable to perform his pre injury duties, although he could perform work with limitations on lifting and other restrictions[26].
[26] see Dr Miller’s report, DCB pp9-10
49 Mr Chamberlain saw Mr Agnew on 9 September 2002. He obtained a history of Mr Agnew going up some stairs, slipping and twisting and feeling pain in his leg. This is at odds with the history provided by Mr Agnew in his first affidavit, and in the account he has given to other medical examiners. I am inclined to think that Mr Chamberlain misunderstood the occurrence described by Mr Agnew as occurring in August 2001.
50 Mr Chamberlain thought that the exact nature of Mr Agnew’s injury was not defined, but that his leg pain was secondary to a lumbar disc prolapse, to which his employment was a significant contributing factor. He was then unfit for his pre-injury work, and at that time, for all work, for the next three months[27].
[27] see Mr Chamberlain’s report, DCB pp18-19
51 On review on 10 April 2003, Mr Agnew’s condition appeared to have stabilised with ongoing residual low back and left leg pain. Mr Chamberlain then considered that Mr Agnew could manage suitable light work, perhaps as a console operator, or spare parts interpreter, or could perform similar work, with restrictions on lifting weights[28]. His view was much the same when reviewing Mr Agnew again on 14 August 2003[29]
[28] see Mr Chamberlain’s report, DCB p21
[29] see Mr Chamberlain’s report, DCB pp24-25
52 On 19 January 2004, Mr Chamberlain again saw Mr Agnew. He considered Mr Agnew’s condition as stable, with on going back pain and “minor leg pain” following what he assumed was a lumbar disc strain. Once again, he assessed Mr Agnew as able to perform lighter work, within the limitations he had described previously[30].
[30] see Mr Chamberlain’s report, DCB pp28-29
53 Dr Fail, psychiatrist, saw Mr Agnew on 3 October 2003. He considered that Mr Agnew did not suffer from any psychiatric impairment, nor did he require any psychiatric treatment[31].
[31] see Dr Fail’s report, DCB p33
54 Dr Baynes, an occupational medicine physician examined Mr Agnew on 20 March 2007. He diagnosed chronic pain syndrome associated with chronic lower back pain and right leg pain. He found no evidence of radiculopathy. He considered that Mr Agnew displayed what he described as “abnormal illness behaviour”.
55 Dr Baynes could not explain why Mr Agnew’s symptoms persisted over about six years with limited improvement. He thought that the symptoms would persist, waxing and waning, and that the prognosis was pessimistic. He considered Mr Agnew’s condition to be stable.
56 He thought that Mr Agnew was permanently unfit to return to his previous work, but might be fit for lighter work[32]. He reviewed Mr Agnew on 24 July 2008, when Mr Agnew complained that he had been worse over the preceding 12 months, with increased pain in both knees and in his neck, radiating into both shoulders. He also had pain in both wrists and ankles. He said that his back was also worse[33]. Dr Baynes’ assessment of Mr Agnew’s capacity for work was unchanged[34].
[32] see Dr Baynes’ report, DCB pp2-4
[33] see Dr Baynes’ report,. DCB pp5-6
[34] see Dr Baynes’ report, DCB p7
57 Mr Davie provided another orthopaedic assessment of Mr Agnew, after examining him on 20 March 2007. He too diagnosed an L4-5 disc injury, which he accepted as being consistent with Mr Agnew’s account of the incident on 22 August 2001. He thought that Mr Agnew’s condition was stable, and that the prognosis was guarded. He thought Mr Agnew would have intermittent back and leg pain from time to time. He considered that Mr Agnew could not perform his pre-injury work, but may be capable of lighter sedentary work.
58 Mr Davie formed the view that Mr Agnew:
“…was exaggerating his problems for my benefit when examined and I believe
there are no definite neurological findings.”[35]
[35] see Mr Davie’s report, DCB pp12-13
The issues
59 Mr McDonald submits that the real question was as to the extent of Mr Agnew’s impairment resulting from his L4-5 disc injury, and whether Mr Agnew had established that an impairment sufficient to obtain leave to commence a proceeding for pain and suffering damages, and for pecuniary loss damages.
60 Mr McDonald contends that Mr Agnew had only a few days off work after the August 2001 incident, followed by about two weeks on light duties. Mr McDonald contends that he then resumed normal work, albeit with some symptoms, until March 2002. He argues that since that time, although with a couple of desultory attempts to resume work. Mr Agnew has not worked, and has had little treatment.
61 Mr McDonald stresses that in his report, Mr de la Harpe noted that Mr Agnew was uncertain, which he contends raises doubt whether his situation was severe enough for an operation to be performed[36]. He challenged Mr Agnew about this:
“I remember talking to Mr de la Harpe and he explained it to me about the operation, and I asked him what guarantee there is that it is going to work and he couldn't give me any guarantee, so that's about as far as it went.
In his report he has noted, this is at page 58, Your Honour the second paragraph, the plaintiff's court book, he says: "At that stage we discussed continued conservative management or surgical options, and he felt that he was not sure whether he was severe enough to warrant surgery and was hoping that things would resolve with conservative management", does that accord with your recollection of your - - - ? --- That's what I was hoping for, yes.
Now, you haven't had surgery in the years since? --- No.
And you haven't been back to see Mr de la Harpe in recent years to further
consider that option? --- No.
Is that because your symptoms aren't severe enough for you to consider the operation? --- No, I am just a bit worried about how the whole operation would go, I am not sure whether it is going to help, he couldn't give me any guarantee that it would help, and I thought once I was off WorkCare, or the WorkCare payments and that, that was the end of that anyway.”[37]
[36] see Mr de la Harpe’s report, PCB p58
[37] transcript p37
62 The surgery proposed would be either a decompression operation, or perhaps an instrumented inter body fusion at L4-5[38]. Mr King considered that the fusion might be at two levels: L4-5 and L5-S1[39]. Mr Agnew’s reluctance to undergo spinal surgery was not criticised by some of the medical examiners[40].
[38] see, for example, Dr Horsley’s report, PCB p63; Mr Wallace’s report, PCB p103; Mr Chamberlain’s report, DCB p27
[39] see Mr King’s report, PCB p70
[40] see Mr King’s report, PCB p72; Dr Ryan’s report, PCB p91;
63 In this application, I do not need to consider whether Mr Agnew has acted unreasonably in declining to submit to surgical intervention. The only relevance of possible surgery is whether Mr Agnew’s unwillingness to submit to it assists in assessing the nature and extent of his injury and incapacity resulting from it. Mr McDonald argues that the level of severity of Mr Agnew’s symptoms can also be gauged by Mr Agnew’s discontinued use of pain killing medication, and cessation of physiotherapy.
Does Mr Agnew have a serious injury?
(a) The relevant legal principles:
64 Under s134AB(1) and (2) Accident Compensation Act, so far as is relevant to this application:
“(1) A worker who is, or the dependants of a worker who are or may be, entitled to
compensation in respect of an injury arising out of or in the course of, or due to the
nature of, employment on or after 20 October 1999—
(a) shall not, in proceedings in respect of the injury, recover any damages for non-pecuniary loss except—
(iii) . . . . . .as permitted by and in accordance with this section; and
(b) shall not, in proceedings in respect of the injury recover any damages for
pecuniary loss except—(ii) . . . . . .as permitted by and in accordance with this section.”
(2) A worker may recover damages in respect of an injury arising out of, or in thecourse of, or due to the nature of, employment if the injury is a serious injury and
arose on or after 20 October 1999.”
65 It is for Mr Agnew to demonstrate, on the balance of probabilities, that he has a serious injury[41], as defined in sub-section (37):
“(a) permanent serious impairment or loss of a body function”
[41] see s134AB(19)(a)
66 In sub-section (37) “serious” and “severe” are explained in sub-section (38):
“(b) the terms "serious" and "severe" are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function,
disfigurement, or mental or behavioural disturbance or disorder, as the case
may be, with respect to—
(i) pain and suffering; or
(ii) loss of earning capacity—
when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, or mental or
behavioural disturbances or disorders, respectively;
(c) an impairment or loss of a body function or a disfigurement shall not be
held to be serious for the purposes of sub-section (16) unless the pain and
suffering consequence or the loss of earning capacity consequence is, whenjudged by comparison with other cases in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable;
* * * * * * * * * *
(e) where a worker relies upon paragraph (a), (b) or (c) of the definition of
serious injury in sub section (37), the Authority or self-insurer shall not grant
a certificate under sub-section (16)(a) and a court shall not grant leave under
sub-section (16)(b) on the basis that the worker has established the loss ofearning capacity required by paragraph (b) unless the worker establishes in addition to the requirements of paragraph (c) or (d), as the case may be, that—
(i) at the date of a decision under sub-section (16)(a) or at the date of the
hearing of an application under sub-section (16)(b), the worker has a loss of
earning capacity of 40 per centum or more, measured (except in the case of a
worker referred to in section 5A(7) or a worker under the age of 26 years at
the date of the injury) as set out in paragraph (f); and
(ii) the worker (including a worker referred to in section 5A(7) or a workerunder the age of 26 years at the date of the injury) will after the date of the decision or of the hearing continue permanently to have a loss of earning
capacity which will be productive of financial loss of 40 per centum or more;
(f) for the purposes of paragraph (e)(i), a worker's loss of earning
capacity is to be measured by comparing the worker's gross income from
personal exertion (expressed at an annual rate) which the worker is earning or
is capable of earning in suitable employment as at that date with the gross
income (expressed at an annual rate) that the worker was earning or was
capable of earning from personal exertion or would have earned or would
have been capable of earning from personal exertion during that part of the
period within 3 years before and 3 years after the injury as most fairly reflects
the worker's earning capacity had the injury not occurred;(g) a worker does not establish the loss of earning capacity required by paragraph (b) where the worker has, or would have after rehabilitation or retraining, and taking into account the worker's capacity for suitable employment after the injury and, where applicable, the reasonableness of the worker's attempts to participate in rehabilitation or retraining, a capacity for any employment including alternative employment or further or additional employment which, if exercised, would result in the worker earning more than 60 per centum of gross income from personal exertion as determined in accordance with paragraph (f) had the injury not occurred;
(h) the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of "serious injury" and not otherwise;
(i) the physical consequences of a mental or behavioural disturbance or disorder are to be taken into account only for the purposes of paragraph (c) of the definition of "serious injury" and not otherwise;
(j) the assessment of "serious injury" shall be made at the time that the
application is heard by the court.”
67 The term “permanent” means “likely to persist in the foreseeable future”[42]. There must also be the probability that the impairment “will last and not mend or repair – or at least not to any significant extent” [43].
[42] see sub section 37
[43] see Barwon Spinners, per Phillips JA for the Court at paragraphs 18 and 19
68 In Barwon Spinners, Phillips J A explained that[44]:
[44] see Barwon Spinners, per Phillips JA for the Court at paragraphs 33 and 34; see also Chernov J A in Grech v Orica Australia Pty Ltd [2006] VSCA 172, par 2, and Ashley J A, par 9
“…one can scarcely proceed to consider the consequences to the Plaintiff of either the injury or the impairment before one has identified precisely the nature and extent of the injury relied upon and of the consequent impairment of a body function said to have been produced. A necessary part of that task of identification will be to determine how far, if at all, the alleged impairment is permanent, in the sense of likely to last for the foreseeable future. Only then, it seems to us, can one proceed to the inquiry about the consequences for the Plaintiff: are the consequences such that they satisfy the "very considerable " test set forth in paragraphs (b) and (c)?
Thus, in order the questions must be: first, what is the injury and what is the impairment said to be produced in consequence; secondly, is the impairment permanent, i.e., likely to last for the foreseeable future; and thirdly, are the consequences for the Plaintiff such as to satisfy the "very considerable" test? If the answer to the second or third of these is no, the injury is not a serious injury as defined by paragraph (a) of sub-s.(37). If the answer to both is yes, it is a serious injury, but then one has identified an impairment which is both permanent and serious (as defined) and the fact that the impairment is permanent will obviously have been a consideration when weighing the consequences; after all, they are the consequences of that impairment. It is hardly likely, if the impairment of the body function will probably last for the foreseeable future, that the consequences upon which the Plaintiff relies to satisfy the "very considerable" test will be otherwise.
Having given the matter much thought, we think it enough to say this: that the impairment of a body function will answer the description "permanent serious impairment" if it is an impairment which, with consequences (as to economic loss or pain and suffering or both) that meet the "very considerable" test, is permanent, in the sense of likely to last for the foreseeable future. That sufficiently couples both adjectives - permanent and serious (as defined) - and
beyond that it seems unnecessary to go. Certainly nothing in these four appeals raised any problem in that regard.” (emphasis added).
69 In deciding this application, I must:
(a)
identify a compensable injury, that is one which arose on or after 20 October 1999;
(b) assess the nature and extent of that injury; (c)
ascertain the impairment or loss of body function resulting from the compensable injury;
(d) determine whether the impairment or loss is “permanent”; and (e)
decide whether the impairment or loss is “serious”, that is, at least “very considerable” for the Plaintiff as to –
(i) pain and suffering and/or
(ii) pecuniary loss
by comparison with other cases; and
(f) decide as to pecuniary loss, whether the Plaintiff has established a loss of earning capacity of 40% or more, by comparing “after
injury earnings” with “without injury earnings”, and whether, with
retraining or rehabilitation, the Plaintiff would have a capacity for
employment which, if exercised, would result in earning more
than 60% of gross income.
70 The issue whether Mr Agnew has suffered a serious injury is to be resolved by taking into account all the evidence[45], rather than by –
“…trial by doctors’ opinions; nor a trial in which relevant questions were to be decided on the footing, in effect, that medical opinion did not of itself provide answers to those questions.”[46]
[45] see Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167, par 17, per Ashley JA
[46] see Grech v Orica Australia Pty Ltd (2006) 14 VR 602, at 611, par 35 per Ashley JA
71 I must be satisfied that Mr Agnew has an impairment or loss of function the consequences of which, physically based, are serious in terms of pain and suffering or loss of earning capacity, in order to satisfy the definition of “serious injury” under sub section 37(a)[47]. This application has been contested on the basis of a physical injury, and symptoms caused by organic injury. I do not go beyond the way in which the case was conducted.
[47] see Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167, par 18, per Ashley JA
72 Where there is a psychological aspect to pain and suffering –
“the proper identification of pain and suffering attributable to impairment which is physical, or physiological in origin…requires that any psychological or psychiatric overlay be stripped aside.”[48]
[48] see Barwon Spinners Pty Ltd v Podolak [2005] VSCA 33, paragraph 117
73 Maxwell P confirmed this approach[49], leading to the need for “disentangling” the physical aspect from the psychological component of impairment.
[49] see Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis [2007] VSCA 46, paragraph 2
74 A recent review was undertaken by Ashley JA. His Honour used as an example a case where there is said to be a psychological aspect of pain and suffering, raising the question whether the Plaintiff has met the burden of proof. His Honour explained that the question –
“…might, as a matter of theory, be resolved by identification of the “quantum” of psychologically based symptoms, and their exclusion from the whole. But it is another thing to say that such an approach is required. A court might well be able to conclude, considering all the evidence, that on the probabilities the Plaintiff has suffered a physically-based impairment which satisfies the statutory test even though identification of the precise quantum of a supervening psychological overlay has not been attempted, or is in the real world impossible.”[50]
[50] see Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167, par 19
75 His Honour adopted what was said by Bell AJA, about what a plaintiff must establish in a claim for pecuniary loss in a serious injury application: It was for the trial judge to determine whether on the evidence the plaintiff’s injury has caused a loss of earning capacity of 40 per centum or more.
76 His Honour pointed out that the degree to which “disentangling or stripping away” may be needed depended on the circumstances in each case. If the incapacity arose from a work injury, and the severity of symptoms is persuasive that it is the major cause of the claimed loss of earning capacity, there was no need to inquire into the contribution, if any, of other causes[51].
[51] see Shock Records Pty Ltd and another v Jones [2006] VSCA 180, and see Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167, par 20, per Ashley JA
77 It is clear that a psychological reaction to physical injury, often referred to as chronic pain syndrome, may be considered under sub-paragraph (c) of the definition of serious injury[52].
[52] see Veljanovska v Socobell OEM Pty Ltd [2005] VSCA 227, paragraph 39, per Ashley JA
(b) Findings and conclusions:
78 I am satisfied that the incident described by Mr Agnew occurred on 22 August 2001, and that he injured his low back in that incident. I accept his evidence generally, as credible and reasonable. I accept his account of this incident.
79 I am satisfied that he had a few days off work, and little treatment, before resuming work, performing light duties for about two weeks. I am satisfied that after this time, he undertook welding work, with little lifting, and that he continued to work, performing these duties until 14 March 2002. I accept that on that day his condition deteriorated, as he has described it[53], and that he ceased work. I also accept that since then, he has not worked, apart from attempting to resume work, without success.
[53] see paragraph 14 above
80 The causal connection with this incident was explained by Mr Wallace[54]. I consider that his explanation accords with Mr Agnew’s description of what occurred, and is supported by other medical opinions. I am satisfied that in the incident on 22 August 2001, Mr Agnew ruptured the L4-5 disc, and that this disc was herniated, or the size of the rupture increased on 14 March 2002.
[54] see paragraph 28 above; see also Dr Horsley’s report, PCB pp65-66; Mr King’s report PCB p72; Mr Davie’s report DCB p12
81 I am also satisfied that it is this injury which has caused Mr Agnew’s symptoms of back pain and sciatic pain. I accept the opinions of Mr de la Harpe[55], Mr Wallace[56], Dr Horsley[57], Mr King[58], and Mr Chamberlain[59] as to this.
[55] PCB p58
[56] PCB p98
[57] PCB p65
[58] PCB p72
[59] DCB pp18-19
82 I am also satisfied that the finding of spondylolisthesis at L5-S1 made by many of the medical examiners, and demonstrated radiographically, is unrelated to the events of 22 August 2001, and 14 March 2002. I am satisfied that this pathology is not caustative of Mr Agnew’s symptoms. In this respect, I accept the opinions of Mr de la Harpe[60], Mr Wallace[61], and Mr King[62].
[60] PCB p58
[61] see paragraph 27 above
[62] PCB p72
83 Mr Agnew was aged 37 when he suffered the back injury on 22 August 2001. On ceasing work in March 2002, he was about 38 years old. He is now aged 44. He has not worked for more than six years, and has not sought work since 2003, more than five years ago.
84 Mr Agnew’s education is limited, as he failed to complete year seven. He has low levels of literacy and numeracy. His experience in the workplace is limited to performing manual labouring or semi skilled work, in which he has relied on his physical capabilities to obtain and perform work.
85 Although I am satisfied that Mr Agnew’s work history is substantially that of a manual worker, he has held positions, such as team leader. Mr McDonald contends that this illustrates that Mr Agnew has some transferable skills.
86 In my view, the role Mr Agnew performed as a team leader at Bartletts was largely one in which he performed his usual physical duties. I am satisfied that he did not undertake to any significant extent any leadership functions so as to suggest a capacity for administrative type duties.
87 For Mr Agnew to find and be able to work, I consider that he must rely on his physical capabilities.
88 It is not in issue that the nature and extent of the injury to Mr Agnew’s low back has barred, and bars him from working in the capacity in which he worked at the time of the incident in August 2001, or in March 2002. It is not in dispute that Mr Agnew will be permanently unable to engage in such work.
89 I find that Mr Agnew now has limited physical tolerances for sitting, standing, walking and driving, and other physical limitations, as discussed by Dr Horsley[63]. Mr Agnew swore that he can:
“…only walk for short bursts before I get leg soreness, mainly on my right side, but also into my left at times. I can only stand for limited periods…I also cannot physically do the things I like with my children…”[64].
[63] see Dr Horsley’s report, PCB p64
[64] Mr Agnew’s first affidavit, paragraphs 37,38; PCB p20
90 I accept Mr Agnew’s account of the way in which the injury to his low back has inhibited his physical abilities.
91 Dr Ryan at first considered that Mr Agnew could engage in suitable work, without heavy lifting, or remaining seated for any prolonged period[65]. He revised his opinion, which, most recently, was that Mr Agnew could not engage in lighter work, because of his limited physical tolerances[66].
[65] see paragraph 24 above
[66] See paragraph 26 above
92 Views about Mr Agnew’s capacity for work were expressed by Mr Wallace, Mr Shannon and other examiners some years ago. Because of this, I place less emphasis on their views, than on those who have seen Mr Agnew more recently, although their assessments require consideration.
93 Mr Wallace thought that Mr Agnew may be able to do part time light work, including limitations on lifting and bending and in other ways[67]. Mr de la Harpe made a similar assessment more than five years ago[68], as did Dr Miller more than six years ago[69], and Mr Chamberlain about four years ago[70].
[67] see paragraph 31 above
[68] see paragraph 33 above
[69] see paragraph 48 above
[70] see paragraph 52 above
94 More recently, similar views were expressed, namely that Mr Agnew may be able to perform some lighter duties[71]. I consider that each doctor’s assessment was somewhat guarded. Dr Horsley, an experienced occupational physician assessed Mr Agnew as unable to work, permanently. She thought that before Mr Agnew would have any capacity for work, he would need considerable retraining, and would need to improve his physical tolerances, a task which Dr Horsley thought was now more difficult to succeed in than had it been attempted six years earlier. She considered that if he managed to be retrained, and to improve his physical tolerances, he may be capable of performing some 15-20 hours a week[72].
[71] see the view of Mr Chamberlain, paragraph 52 above; Dr Baynes, paragraph 56 above, Mr Davie, paragraph 57 above.
[72] See paragraph 41 above
95 To the extent to which Dr Horsley’s views on this issue may be inconsistent with the views of other examiners, and in my view, there is really little difference, I prefer and accept her assessment. I do so because I consider that her opinion is more thoroughly grounded, and better reasoned, and because I consider that it is consistent with facts established in the evidence.
96 Dr Horsley found that Mr Agnew displayed ”fear avoidance” behaviour[73]. The factors Dr Horsley outlines as those to be considered in any work offered to Mr Agnew are, in my view, both extensive and very restrictive[74]. I accept her view about the relevance of these factors. I regard all of them as appropriate to be taken into account.
[73] see paragraph 38 above
[74] see Dr Horsley’s report, PCB pp65-66
97 Dr Horsley thought that Mr Agnew had developed a chronic pain syndrome[75], a view shared by Dr Strauss[76], but not by Dr Fail[77]. Mr King did not consider that there was any functional component to Mr Agnew’s presentation[78]. Mr Davie considered that Mr Agnew was exaggerating his symptoms for his benefit[79].
[75] see paragraph 38 above
[76] see paragraph 45 above
[77] see paragraph 53 above
[78] see paragraph 44 above
[79] see paragraph 58 above
98 Leaving to one side the view of Mr Davie, I approach the task of assessing the incapacity of Mr Agnew by focussing only on any organically based symptoms[80].
[80] see paragraphs 72-77 above
99 I am not prepared to act on Mr Davie’s view. There are three reasons. First, he does not provide a basis for his conclusion. Secondly, it is in contrast to the views of some other examiners who found Mr Agnew to be genuine. I accept Mr Agnew as a credible and reliable witness, and consider that the medical assessments of him as genuine are consistent with that finding. Thirdly, Mr Agnew was not challenged in cross examination on the basis of exaggeration.
100 Based on Dr Horsley’s assessment, which I accept, especially those referred to in paragraphs 94 to 97 above, I have concluded that Mr Agnew is incapable of work of any type at this time, and that his incapacity is the result of the injury to his low back, caused by the rupture to or damage of the L4-5 disc, and the back pain and leg pain, especially in his right leg produced by that injury.
101 In my view, Mr Agnew has been unable to work in any capacity since March 2002. He has had a long term incapacity to date, and one that will continue long term. Although he is now a comparatively young man, he has had the physical limitations due to the injury for many years. I am satisfied that these have not improved, and that they are unlikely to improve in the foreseeable future.
102 For these reasons, I am satisfied that he has suffered a total loss of earning capacity which is long term and sufficient to constitute a serious injury.
103 In my view, I do not need to determine Mr Agnew’s claim for pain and suffering consequences, given the decision I have reached on his claim for loss of earning capacity. This is because of the construction of s134AB(38)(b) of the Act which provides:
“(b) the terms serious and severe are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, or mental or behavioural disturbance or disorder, as the case may be, with respect to—
(i) pain and suffering; or
(ii) loss of earning capacity—
when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, or mental or behavioural disturbances or disorders, respectively”.
104 I consider that the word “or” between pain and suffering and loss of earning capacity is used disjunctively. In this context, the proper interpretation is that a worker need only establish either the pain and suffering consequences or the loss of earning capacity consequences to meet the needs of a serious injury claim.
105 However, sub-section 38(b) must be read together with s134AB(17), which modifies the interpretation of sub-section 38(b) set out above in the following way. Under sub-section 17, if a worker establishes that the pain and suffering consequences of an injury are serious, but does not demonstrate that the loss of earning capacity consequences are serious, the worker may commence a proceeding for damages for pain and suffering only. The sub-section does not operate in the same way where a worker establishes that the loss of earning capacity consequences of an injury are serious.
106 Further, I agree with and adopt the reasoning of Judge I J K Ross in Patterson v Burbank Plumbing and Maintenance Services[81] that in these circumstances, the application of s134AB(19)(c) must be considered. Sub- section (19)(c) provides that no finding apart from a finding that an injury is a serious injury made on an application for leave to commence a proceeding for damages gives rise to an issue estoppel. I also agree that there is no useful purpose in deciding the pain and suffering consequences of an injury where a decision has been reached that the loss of earning capacity consequences of an injury constitute a serious injury.
[81] [2007] VCC 1527, 10 December 2007
107 This interpretation of sub-section 17 is consistent with the second reading speech of the Minister for Workcover:
“The bill introduces a new concept in relation to the worker having a limited entitlement to bring proceedings if, on the serious injury application the court is not satisfied that the worker has met both the pain and suffering and loss of earning capacity thresholds. If a worker satisfies the pain and suffering but not the loss of earning capacity threshold, then the worker will be limited to an entitlement to bring common law proceedings for the recovery of pain and suffering damages only. If however the worker satisfies the economic loss threshold, the worker will be entitled to bring proceedings for pain and suffering damages and economic loss damages.”[82]
[82] Hansard, Legislative Assembly, 13 April 2000, p1005
108 I also adopt and follow the decisions of Judge Higgins in De Pasquale v A W Dark (Vic) Pty Ltd[83], Judge Strong in Stevens v Everest Australia Pty Ltd[84] and Becirovic v Melbourne Bus Line Pty Ltd[85], a decision of Judge Morrow.
[83] [2005] VCC 158
[84] [2007] VCC 1014
[85] [2007] VCC 1995
109 Mr Agnew succeeds on his application for leave to commence a proceeding for damages for personal injuries for pain and suffering damages and pecuniary loss damages for the injury the subject of this application.
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