Amith v VWA
[2014] VCC 705
•27 May 2014
| 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-13-01080
| MOHAMED PUTHRA PRINCE AMITH | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE DYER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 and 20 May 2014 | |
DATE OF JUDGMENT: | 27 May 2014 | |
CASE MAY BE CITED AS: | Amith v VWA | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 705 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Accident Compensation Act – serious injury – plaintiff injured in course of employment – aggravation injury to lower back – pre-existing degenerative condition – extent of aggravation – concurrent degenerative injury affecting knees – identification of serious consequences from work-related injury – leave sought in respect of pain and suffering only in respect of paragraph (a) – leave refused
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Petkovski v Galletti [1994] 1 VR 436; Peak Engineering Pty Ltd & Anor v McKenzie [2014] VSCA 67
Judgment: Application for leave to bring proceedings for pain and suffering damages dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J P Brett | Arnold, Thomas & Becker |
| For the Defendant | Mr C D Griffin | Hall & Wilcox |
HIS HONOUR:
Introduction
1 The plaintiff, Mohamed Puthra Prince Amith, is a sixty-three year old former aluminium extrusion worker who suffered an injury to his lower back in the course of his employment with INEX Independent Extrusions Pty Ltd (“the employer”). He commenced employment with that company in 2004 and eventually ceased due to worsening pain in both his lower back and his knees in July 2010. He seeks leave of the Court to commence a common law proceeding against his former employer in accordance with the provisions of s134AB(16)(b) of the Accident Compensation Act (“the Act”), relying upon his lower back as a serious injury, as defined in paragraph (a) of the definition of serious injury in s134AB(37) of the Act.
2 The application is opposed by the defendant, principally on the ground that whatever injury the plaintiff may have suffered to his lower back should properly be described as a temporary aggravation of an underlying disease process. Additionally, the plaintiff has developed concurrent degenerative injuries to both knees, which also play a significant role in the diminution of the plaintiff’s ability to engage in his ordinary activities of daily life.
3 The plaintiff bears the burden of satisfying the Court on the evidence that the pain and suffering consequence of the identified body function, “when judged by comparison with other cases in the range of possible impairments or losses of a body function … may be fairly described as more than significant or marked, and as being at least very considerable”.[1]
[1]Section 134AB(38)(c).
4 In order to make an assessment of the extent of consequences flowing from a relevantly work-related loss of a body function, it is necessary to first identify the injury, including its extent and duration. The statutory framework relevant to these applications requires that the consequences assessed as flowing from a loss or impairment of body function can properly be described as permanent, meaning likely to persist into the foreseeable future.[2]
[2]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at [34].
5 At the time of the application proceeding before me, it was not disputed that the plaintiff had any work capacity, nor was it disputed that he was impaired to a very considerable degree in terms of his activities of daily living. Indeed, the defendant showed surveillance video of the plaintiff to demonstrate the extent of some of his difficulties, particularly getting into a motor vehicle. Further, Mr Griffin, who appeared on behalf of the defendant, most fairly conceded that the defendant did not challenge the honesty of the plaintiff in describing the extent of his physical limitations.
The evidence
6 The plaintiff had sworn affidavits in support of his application on 30 October 2012 and 27 March 2014. His wife had also sworn an affidavit on 27 March 2014. Both were required for cross-examination. Additionally, Mr Jonathan Hooper, orthopaedic surgeon, who prepared two reports on behalf of the defendant, was also required for cross-examination by Mr Brett, who appeared for the plaintiff. The further evidence in this matter consisted of a surveillance video of the plaintiff taken on 1 May 2013[3] and material from the parties’ respective Court Books, identified as Exhibit A and Exhibit 2. Without reciting the full detail of the plaintiff’s two affidavits, I believe it is necessary to set out in summary form the matters relevant to my determination:
[3]Exhibit 1.
· The plaintiff was born in Sri Lanka and obtained qualifications in bookkeeping and a form of accountancy after completing his secondary school.
· Prior to coming to Australia in 1988, the plaintiff had worked for some eight years as an informal accountant and a further eight years involved with a car sales business.
· After coming to Australia, the plaintiff performed essentially manual work at a car factory for one year and then in die casting and aluminium extrusion companies up until 2004, when he commenced similar work with the employer.
· The plaintiff described himself as generally fit and healthy prior to starting with the employer, apart from minor back pain shortly after arriving in Australia. He did not recall any time away from work, but had some further soreness in his back in approximately 2002.
· The plaintiff worked as a press driver with the employer initially and was then promoted to supervisor, although still performing some heavy work. He would work ordinarily on 10 hour shifts, and frequently 12 hour shifts including overtime.
· The work was physical, even after becoming a supervisor, as he would often cover other workers and would manoeuvre dies which weighed up to 20 kilograms. A considerable amount of bending and squatting was required. When using trolleys, there were often difficulties due to the state of the flooring and the trolleys themselves. There were other physical aspects to the work which do not need to be restated here.
· The plaintiff began to experience back pain in about 2005, which became worse leading up to consulting a Dr Lou in early 2008, when the plaintiff could not attend work.
· After receiving prescription medication, the plaintiff continued working, with his back becoming worse, leading to further medical examination in about May when x-rays were taken of the plaintiff’s back and also his knees. The plaintiff continued working for fear of losing his job and because he enjoyed the work.
· A WorkCover claim was submitted in relation to his back, which was accepted, and medical and like expenses were paid.
· In 2008, the plaintiff was referred to Mr Razif and told to avoid work involving prolonged sitting, standing, levering his back or lifting or bending. The plaintiff continued, nevertheless, to work and continued with physiotherapy during 2009.
· In 2009, the plaintiff consulted Dr Doss, a general practitioner, who referred him to Mr Drnda, neurosurgeon, who advised him to continue physiotherapy and other conservative treatment. The plaintiff, in fact, continued such treatment, including hydrotherapy, and did exercises at home. He also remained on painkilling medication.
· By 2010, the plaintiff’s back pain was very bad and he continued early retirement. Following an apparent disagreement with the employer concerning safety and working conditions, the plaintiff did stop work in July 2010 and has not worked since.
· The plaintiff is restricted in activities, including driving, bending, carrying heavy things, sitting or standing for prolonged periods, and this has continued. He is always aware of back pain, although it does fluctuate in intensity. His sleep is disturbed “some nights each and every week”.[4]
· The plaintiff has difficulty with domestic activities, social activities, gardening and dancing.
· The plaintiff could not continue working with the employer or in any form of physical work.
[4]Exhibit A, Plaintiff’s Court Book (“PCB”) 19, paragraph 33.
7 In the more recent affidavit, sworn shortly prior to the trial, the following matters were noted as relevant to the application:
· In relation to the onset of injuries:
“…the pain started in about 2006 as a pain in my left leg. I then developed pain in my right leg. These pains were from my thigh to my ankle. By 2008, I was having pain in my back and I consulted my GP.”[5]
[5]Exhibit A, PCB 22, paragraph 4.
· The plaintiff had attended gymnasium for only about nine months and then bought a treadmill and exercise bike which he continues to use at home.
· In relation to his sports, the plaintiff’s involvement was as a spectator rather than a player.
· The plaintiff had married his wife, Marlie Legitimas, in March 2011, having met her first in 2006.
· The plaintiff has difficulty in driving for more than half an hour and relies on his wife. He has difficulty spending long periods in air travel and has missed family events in Sri Lanka and events in which his wife participated in the Philippines more recently.
· The plaintiff’s personal relationship with his wife has been affected by frustration and depression concerning his injuries.
· The plaintiff continues to have pain in his legs and lower back, exercises daily and uses a TENS machine for temporary relief.
· The plaintiff has put on approximately 35 kilograms and continues to see a Dr Meshreky, who prescribes Mobic, Lyrica and Panadeine Forte. He sees her approximately two or three times per month and has also seen a psychiatrist and psychologist.
· The plaintiff remains very restricted in his domestic activities and, when out of the house, prefers to use a walking stick. His injuries cause him a great deal of pain and limit his life enormously.
8 In cross-examination, the following matters were noted:
· The pain in the legs started after 2004, “Started in my left leg then gradually moved to the right leg”.[6]
[6]T15, L2–5.
· It was the back, rather than the condition of the knees, that stopped the plaintiff from working.[7]
[7]T16, L2–8.
· Both the back pain and knee pain causes problems with sleeping, walking and standing.[8]
[8]T16, L15–21.
· In relation to the plaintiff’s inability to dance, “Knees, my back and my weight are contributional”.[9]
[9]T17, L10–12.
· Painkilling medication was of limited effect:
A:“It doesn’t work 100 per cent. When it wears off, it becomes worse.
Q:Yes, and do the painkillers work with your knees?---
A:Same like the back.”[10]
[10]T17, L30–T18, L2.
· The pain in both knees is about the same and is constant at present. It is a lot worse than when the plaintiff worked.[11]
· The plaintiff’s sitting tolerance was about 90 minutes which involved moving from one chair to another chair. Driving was limited to half an hour to one hour and the problems with driving and getting into a motor vehicle were contributed to by the back and the knees.[12]
· The plaintiff’s weight in July 2010 was 116 kilograms and rose to around the 140s since May 2011. After attending a gymnasium for nine months, the plaintiff had lost only 7 kilograms, going five days a week for about two hours.[13]
· The plaintiff had experienced back pain from 1989, “When you work in a factory you usually get aches and pains”.[14]
· From about 1993 onwards, the plaintiff would get not only back pain, but muscle pain and spasms, because of working in a factory.[15]
· The plaintiff had reported to Dr Ho that the relatively severe pain in the back had commenced when getting out of bed in February 2008.[16]
· The plaintiff’s movement was restricted by both his back and his knees.[17]
· In relation to the sexual problems experienced by the plaintiff, he had been referred to a fertility clinic in the 1990s and received some medication.[18]
[11]T18, L7–16.
[12]T18, L30–T19, L27.
[13]T21, L8–26.
[14]T24, L11–13.
[15]T25, L18–21.
[16]T46, L9–18.
[17]T47, L25–27.
[18]T52, L29–T53, L29.
9 In re-examination, I noted the following matters:
· The plaintiff’s sleep was affected by both the back and the knees, but mainly the back.[19]
· The plaintiff used a TENS machine for the back and the knees, but about 75 per cent for the back.[20]
· The plaintiff was referred to Mr Razif, an orthopaedic surgeon, in relation to his knees.[21]
· After seeing Mr Razif, the plaintiff’s doctor referred him to Mr Drnda, a neurosurgeon, for his back.[22]
· In moving around when watching TV, the plaintiff mainly had problems with his back rather than his knees.[23]
· The plaintiff described the leg pain as running from his thighs downward to his knee and running from his lower back to his ankle.[24]
· Prior to February 2008, the plaintiff described the back pain as “…slight normal pain you get, you take painkillers and it goes away.”[25]
· The pain experienced in the back when waking up in February 2008 was such that “I just couldn’t move my limbs. I thought maybe I had a stroke … It was back and near everywhere ... Since that day I was continuously in pain.”[26]
[19]T54, L9–13.
[20]T54, L19–L25.
[21]T55, L1–3.
[22]T55, L16–25.
[23]T56, L2–6.
[24]T56, L15–24.
[25]T57, L14–16.
[26]T57, L24–T58, L9.
10 The plaintiff’s wife, Marlie Legitimas, had sworn an affidavit in support of the application. She was broadly supportive of the plaintiff’s apparent pain and his difficulty in sleeping. She also deposed to him using a walking stick and being unable to do very much at all around the house or garden. When cross-examined, the following evidence emerged:
· She had met the plaintiff in the Philippines in 2007 and 2008, and in Australia in 2009,[27] before settling in Australia in 2010.
· When the plaintiff first visited, he was fit and very well and his weight was not like it was now. He was a bit skinnier.[28]
· The witness arrived in Australia in August 2010 after the plaintiff had stopped work.[29]
· The plaintiff told the witness that his back was much sorer than his knees.[30]
· After exercising on the treadmill, the plaintiff would take painkillers, complaining about his back.[31]
· The plaintiff could drive, but not “long driving”.[32]
· The witness had not observed the plaintiff’s knees swell and most of the time he had complained about his back when turning around and around in bed.[33]
· In re-examination, the witness confirmed that before she came to Australia, the plaintiff had planned to retire at sixty and “then can have a good married life”.[34]
[27]T61, L30–T62, L4.
[28]T63, L2–5.
[29]T64, L2–5.
[30]T64, L12–13.
[31]T65, L25–31.
[32]T66, L18–19.
[33]T67, L13–17.
[34]T68, L9–14.
11 Mr Jonathan Hooper had prepared two medico-legal reports. He expressed the following opinions:
“His diagnosis was morbid obesity and age related constitutional degenerative disc disease and medial side arthritis.”[35]
And:
“His problems are due to constitutional causes. He had no accident or injury in the course of his work, but he merely aggravated an ageing back and knees.”[36]
[35]Exhibit 2, Defendant’s Court Book (“DCB”) 19.
[36]Exhibit 2, DCB 20.
12 In his further report, dated 19 February 2014, Mr Hooper commented as follows:
“I believe his aforementioned symptoms are consistent with the pathology that is seen. This cannot be attributable to any accident or injury in the work place in my view. It would be my view that the pre-existing ageing process that is visualised in his back and knees are responsible for his symptoms and would have occurred inevitably. The cause of his knee pain is due [sic] osteoarthritis and it may be that some of the leg pain, which is not a feature now, may be discogenic and coming from his low back.”[37]
[37]Exhibit 2, DCB 22.
13 Mr Hooper was cross-examined by Mr Brett and the following matters were noted in relation to aggravation:
A:“Well, it can be made worse if there’s a specific accident or injury that occurs, and that can precipitate itself, but generally activities of daily living and activities of work – things do get worse as you get older, and that’s what’s happened with this man.”[38] Significantly heavy activities for a period of some four or five years would not necessarily have increased the wear and tear on the disc annulus.”[39]
Q:[The plaintiff’s] “…symptoms have become significantly worse over the period [of the last five years]?---
A:“Well, I’m sure it became worse over that period, and many working people do have aggravation of their back pain when they work and when they cease working, it settles down.”[40]
A:“…over that period of time…his lower discs have become less functional, if I can use that word, the integrity has, well, just as your discs will become less functional with your age too. It’s exactly the same thing.”[41]
A:“…my view is that this man had constitutional change in his back that was temporally [sic] aggravated by his work. When he ceased working that aggravation has ceased and his problems are now due to pre-existing problems that he’s got that have indeed got – deteriorated with the passage of time.”[42]
[38]T31, L13–18.
[39]T31, L13–24.
[40]T33, L21–24.
[41]T33, L31–T34, L4.
[42]T35, L14–20.
14 In answer to questions put by me, Mr Hooper responded in relation to the plaintiff’s weight of around 140 kilograms:
Q:“That sort of heavy loading on the spine would be expected to aggravate or accelerate the rate of change in the lower back?---
A:Absolutely. I mean it – what it – what it does, it makes the management of his back pain and back problem so much harder because you’re talking about pain to – as it were, power to weight ratio, so if – and so in managing back pain we try to get people to their optimum weight…”[43]
[43]T36, L13–20.
15 Further questions from Mr Brett elicited the following evidence:
Q:“Over the period 2004 to 2009 it is likely that he’s had changes in the structures of his discs which have made his back more symptomatic?---
A:He’s got changes in discs, that’s right.
Q:Those changes are contributed to by a number of factors, including the work related aggravation?---
A:I don’t disagree with that.
Q:Of course, it hasn’t got better. The discs don’t heal themselves?---
A:Well, I think the aggravation has ceased and then his symptoms, which you can only measure in terms of his relation of pain, which is very hard to assess, that continued.”[44]
[44]T38, L5–16.
16 Mr Hooper was re-examined and the following evidence was noted:
“I think that as he has ceased work, the work related aggravation has ceased and his problems are now due to the things that you have been describing, the age-related changes.”[45]
[45]T44, L29–T45, L1.
17 Apart from the oral evidence received, the plaintiff relied upon reports from Elsa Yip, physiotherapist, dated 30 March 2009 and 13 August 2009, Dr Mohan Doss, general practitioner, four reports between 11 May 2009 and 13 July 2012, Mr Armin Drnda, reports dated 27 August 2009 and 24 June 2013, Mr Russell Miller, report dated 3 November 2013, and a report from the current treating general practitioner, Dr Meshreky, dated 20 February 2014. Additionally, the plaintiff tendered four radiology reports, relating to the lumbosacral spine, both knees and the right shoulder, taken between 9 May 2008 and 3 March 2010.
18 The defendant tendered in evidence a report from a former treating general practitioner, Dr David Ho, dated 26 March 2009, and medico-legal reports from Mr Peter Battlay, general surgeon, who had prepared independent medical assessments in April and May 2009. It also relied upon the reports from Mr Jonathan Hooper, orthopaedic surgeon, to which I have referred, a report from Dr Tony Kostos, rheumatologist, dated 1 May 2013, and radiology relating to the lumbosacral spine and both knees taken between 8 February 1993 and 6 January 2014.
Analysis
19 It must be accepted as a core principle of applications of this type that the plaintiff bears the burden of satisfying the Court that there are identifiable consequences flowing from a work-related injury which satisfy the statutory threshold. The plaintiff is accepted by the defendant as an honest witness and I have little doubt that he has been forthright in terms of the matters deposed to in his affidavits and in evidence given before me in this application.
20 Nevertheless, the medical complexity of this application is one that presents very significant evidentiary difficulties for the person bearing the burden of proof, in this case, Mr Amith. The report from Dr Meshreky, the current general practitioner, confirms longstanding problems with lower back pain since 2007 and refers also to morbid obesity and depression.[46] An earlier general practitioner, Dr David Ho, who had first examined the plaintiff in relation to his right knee in October 2008, wrote a detailed report to the WorkCover insurer on 26 March 2009.[47] In that report, Dr Ho refers to treatment given by the initial treating practitioner, Dr Albert Lou, and notes:
[46]Exhibit A, PCB 69.
[47]Exhibit 2, DCB 8–11.
“He was next reviewed on 13 May 2008, when Dr Albert Lou referred him for CT scan of his lumbar spine. This reportedly revealed osteoarthritis in his lumbar spine with disc bulge. He was subsequently referred to Mr Razif, an orthopaedic surgeon.
…
According to a subsequent report from Mr Razif dated 4 September 2008, Mr Amith reported that he developed aching in his left leg down to his ankle when getting up from bed six months ago. Hence he had not mentioned to Mr Razif any history of heavy work. Mr Razif diagnosed a lumbar spondylosis or osteoarthritis of his lumbar spine. He was reviewed by Mr Razif on 29 August 2008. At that time, his back and left leg pain was settling with physiotherapy.”[48]
In that report, Dr Ho went on to comment as follows:
“I explained to Mr Amith that I was uncertain as to whether it was work-related because there had not been any specific incident or injury at work. There had not been any recent changes in his work practice to cause an acute presentation of the lumbosacral spondylosis.
…
In my opinion, the effects of the temporary aggravation of his pre-existing condition had now resolved.
In my opinion he suffers from pre-existing or age-related lumbar spondylosis and osteoarthritis in his right knee.”[49]
[48]Exhibit 2, DCB 8.
[49]Exhibit 2, DCB 9 and 11.
21 The plaintiff does receive some support from Mr Armin Drnda, neurosurgeon, who referred to a single attendance on the plaintiff on 27 August 2009. He noted at that stage a history of ―
“…two years of low back pain. He related that to heavy manual work, especially with the last employer. He was exposed to heavy labouring. His main complaint was severe lower back pain.”[50]
[50]Exhibit A, PCB 60.
22 Mr Drnda provided a diagnosis of “chronic low back pain based on advanced lumbar spondylosis”. He went on to comment:
“I am not aware of the patient’s current condition as I saw him last time almost four years ago.
I would think that Mr Amith’s condition has stabilised. In other words, I would not think that he would get significantly better or worse with his condition.”[51]
[51]Exhibit A, PCB 61.
23 Mr Russell Miller, orthopaedic surgeon, obtained a history of the development of back pain consistent with the evidence in this case. He commented as follows:
“Mr Amith has suffered a musculo-ligamentous strain to the lumbar spine and aggravation of degenerative disease in the lumbar spine.
…
It is likely that his work to the extent that it was physical, has made a contribution to the evolution of the spinal disease and I believe that affect persists.”[52]
[52]Exhibit A, PCB 66.
24 I have already referred to the opinion of Mr Hooper, who gave evidence before me. Dr Kostos, when reporting to the defendant’s solicitors in May 2013, commented:
“It is quite apparent that the radiological changes currently noted on this man’s lumbar spine were present in 1993 and have not changed.
…
This man has non-specific low back pain without any evidence of a radicular competent [sic].
Unfortunately, the medical evidence states that a cause of back pain cannot be determined by a history or examination and nor are investigations any help at all.
The changes that he has on his investigation results are longstanding and have not been caused by his employment. They are constitutional changes. Any suggestion that the findings of the investigation results represent a diagnosis is non-evidence-based and can be ignored.
Furthermore, the suggestion that this man’s lumbar spine changes have been caused by his work is without scientific foundation.
The history is that this man’s back pain began in bed at home, not at work.”[53]
[53]Exhibit 2, DCB 27.
25 I had stated above that I regarded the plaintiff as an honest witness and this view was shared by counsel for the defendant. I must conclude, however, that the plaintiff’s evidence that he was referred to Mr Razif in respect of his knee problems, rather than his back, is incorrect. Having noted the opinion provided by Dr Ho, the former treating general practitioner, referring to the CT scan performed of the lumbar spine in May 2008[54] which does not refer at all to the knees, it is my view that, as a matter of probability, the plaintiff was referred to Mr Razif in 2008 for assessment and treatment of his lower back.
[54]Exhibit A, PCB 77.
26 On any view, the injury to the lower back, which forms the basis of this application, is an aggravation injury. Authorities going back to Petkovski v Galletti[55] require a court to make an assessment of the consequences flowing from the accepted injury (i.e. the aggravation) and not the totality of the aggravated condition.
[55][1994] 1 VR 436.
27 I have little doubt that the combination of injuries affecting the plaintiff in this case has led to his total incapacity from physical work and restricted him in terms of his recreational and domestic activities to a large extent. The Court of Appeal has recently stated:
“The Court must decide whether the consequences of the original injury are ‘more than significant or marked, and … at least very considerable’. For that purpose, it is necessary ― so far as the evidence permits ― to identify the consequences properly referable to the original injury, and to exclude the consequences referable to the subsequent injury.”[56]
[56]Peak Engineering Pty Ltd & Anor v McKenzie [2014] VSCA 67 at [2].
28 In the present case, it would be possible to accept the plaintiff’s own evidence that the back condition was more disabling than the knee condition, probably in the order of 75 per cent as against 25 per cent. To my mind, this does not solve the central question as to whether the work-related aggravation experienced in the course of the plaintiff’s employment between 2004 and 2010 remains a relevant cause of the back pain suffered by the plaintiff as at the date of this application.
29 This is not a case where it can be said that the plaintiff had a largely asymptomatic condition up until a time when an episode sustained in compensable circumstances did measurably and significantly aggravate the underlying degenerative process. The plaintiff himself accepts that the disabling symptoms of back pain commenced when he was at home in February 2008. I have not been provided with any evidence from the initial orthopaedic surgeon to whom the plaintiff was referred and the only evidence from a treating general practitioner who attended him whilst he was still working for the employer does not support anything other than a temporary aggravation of the underlying condition.
30 It was clear from the evidence of Mr Hooper, when cross-examined by Mr Brett, that there were largely matters of semantics underpinning the debate as to whether an underlying condition had been permanently or temporarily aggravated. Once again, it is unclear from the opinions of Mr Miller or Mr Drnda as to whether the symptoms experienced by the plaintiff, which currently produce adverse consequences, could fairly be related to the overall degenerative condition or the aggravation injury accepted on behalf of the defendant as an injury for the purposes of the legislation.
Conclusion
31 Mr Amith clearly suffers from a disabling suite of symptoms which have very substantially interfered with his ability to work and to enjoy his life since early 2008. In this case, however, I am unable to be satisfied as to the necessary causal link being made between a work-related aggravation of the underlying degenerative disease of the lower back and the consequences which now affect him.
32 In those circumstances, the claim will be dismissed. I will hear the parties in relation to formal orders and costs.
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