Anetoudis v DZCG Pty Ltd
[2018] VCC 2161
•21 December 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-01689
| EMMANUEL ANETOUDIS | Plaintiff |
| v | |
| DZCG PTY LTD | First Defendant |
and
VICTORIAN WORKCOVER AUTHORITY Second
Defendant
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 and 20 November 2018 | |
DATE OF JUDGMENT: | 21 December 2018 | |
CASE MAY BE CITED AS: | Anetoudis v DZCG Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 2161 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the lower back – aggravation – pain and suffering – whether consequences “very considerable”
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013.
Cases Cited:Zlateska v Consolidated Cleaning Services Pty Ltd & Anor [2006] VSCA 141; Petkovski v Galletti [1994] 1 VR 436; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12; Stijepic v One Force Group Australia Pty Ltd & Anor [2009] VSCA 181; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Carbone v Toyota Motor Corp [2017] VSCA 249; Davidson v TAC [2015] VSCA 12
Judgment: Application successful
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Purcell SC with | Slater & Gordon |
| Mr A Saunders | ||
| For the Defendant | Mr WR Middleton QC with Mr AW Middleton | Lander & Rogers |
HER HONOUR:
Preliminary
1 On 5 October 2015, Mr Anetoudis was carrying beams of timber over uneven bluestones, when he stumbled and twisted his right ankle (“bluestone incident”). Mr Anetoudis claims that he also aggravated his pre-existing lower back condition in this incident. By December 2015, his lower back pain had deteriorated so significantly that Mr Anetoudis required urgent surgery in the form of a spinal decompression. Since that time, Mr Anetoudis has successfully returned to full-time employment and is now working more hours and earning a greater income than he was prior to this incident. Notwithstanding his capacity to undertake full-time work, Mr Anetoudis claims that he has suffered persisting lower back pain, and that he has been restricted in his level of activity and the tasks he can undertake.
2 In order for Mr Anetoudis to be entitled to claim common law damages for his pain and suffering, he must satisfy me that his spinal impairment satisfies paragraph (a) of the definition of “serious injury” contained in s325 of the Workplace Injury Rehabilitation and Compensation Act 2013.
3 The defendant accepted that Mr Anetoudis injured his right ankle in the bluestone incident, but disputed that his lower back was also injured as a consequence of this incident. In the alternative, the defendant claimed that Mr Anetoudis had received an excellent result from the surgery, such that the consequences to him cannot be described as “at least very considerable”.
4 Only Mr Anetoudis was called to give evidence and he was cross-examined. Also in evidence were medical reports and other material. I have read those tendered documents together with the transcript of the proceedings. I shall not refer to all of that material in the course of this judgment, but rather to those parts of the evidence which I consider necessary to give context to and explain the conclusions reached in this judgment.
5 For the reasons which follow, I am satisfied that Mr Anetoudis injured his lower back in the bluestone incident, and that the consequences to him can be described as at least very considerable, such that he should be granted leave to seek common law damages for his pain and suffering.
Mr Anetoudis’ life prior to the bluestone incident, and his pre-existing lower back condition
6 Mr Anetoudis is now 32 years of age. He completed Year 12 at Kew High School, and subsequently completed an apprenticeship in carpentry. Mr Anetoudis then worked for various employers in the construction industry, on numerous building sites across Melbourne.
7 Mr Anetoudis said that he enjoyed going to the gym and doing weight training in his spare time, and that he attended six to seven days a week, and sometimes twice a day. Mr Anetoudis said that he attended the gym “religiously,” and described it as a “passion” and a “way of life”. Mr Anetoudis said that many of his friends were also gym members, and that he enjoyed the social side of going to the gym, as well as the workout.
8 Mr Anetoudis said that he enjoyed riding his Harley Davidson motorcycle, although he did not say how often or for how long. Mr Anetoudis also said that he played social basketball and football with his friends.
9 Mr Anetoudis had pre-existing lower back problems, for approximately three years prior to the bluestone incident. In his first affidavit sworn on 13 December 2007, Mr Anetoudis stated that he had “suffered from occasional back pain over the years but nothing that was persisting or caused me to take any time off work.” He acknowledged that he would seek treatment from chiropractors or physiotherapists approximately every six months or so, for maintenance. Mr Anetoudis considered this to be a normal occurrence for someone in the construction industry performing labour-intensive work.
10 In his supplementary affidavit sworn on 12 November 2018, Mr Anetoudis provided more detail as to his prior lower back condition, and the treatment he had subsequently received, after having had his memory refreshed by his medical records from a range of medical clinics.
11 These records indicated that Mr Anetoudis’ first documented medical attendance in respect of his lower back pain was on 13 August 2012. On this date, he attended at the Rowville Central Clinic where it was noted that he had injured his lower back the previous day, whilst bending to pick up a pot from a drawer. It was noted that Mr Anetoudis had a very limited range of movement and was tender in his lower back. At that time, Mr Anetoudis was prescribed Indocid medication.
12 On 12 March 2013, Mr Anetoudis attended the East Kew Clinic and complained of back pain, as a result of which he had missed one and a half weeks of work. He was provided with a medical certificate at that time, but it was noted that his back “feels okay now”.
13 On 30 December 2013, Mr Anetoudis attended the St Kilda Super Clinic, where it was noted that he had a past history of back pain. He was prescribed Panadeine Forte medication.
14 On 15 January 2014, Mr Anetoudis attended the Bulleen Plaza Medical Centre and complained of having suffered lower back pain for six weeks, for which he had consulted an osteopath, physiotherapist and chiropractor. Mr Anetoudis was prescribed Augmentin Duo Forte medication and was referred for a CT scan.
15 On 29 January 2014, a CT scan was taken of Mr Anetoudis’ lumbar spine. It was reported as demonstrating mid to moderate central L3-4 disc protrusion, and moderate pronounced central to right-sided L4-5 disc protrusion with the disc compressing the L5 nerve. It also demonstrated a broad-based L5-S1 disc bulge with slight left disc protrusion, resulting in minor involvement of the left S1 nerve root and extended facet joint degeneration, with mild L3-4 and L4-5 spinal canal stenosis.
16 On 1 April 2014, Mr Anetoudis re-attended the Bulleen Plaza Medical Centre. It was noted that he complained of lower back pain for which he was prescribed Panadeine Forte.
17 In cross-examination, Mr Anetoudis said that while he was prescribed Panadeine Forte, he tended to just take anti-inflammatory medication, as needed, as he had previously tried Panadeine Forte and found it to be unhelpful.
18 On 18 June 2014, Mr Anetoudis again attended the Bulleen Plaza Medical Centre, at which time it was noted that he “would like a referral to see spinal surgeon re .. ongoing disc prolapse pains in back.” When this sentence was put to Mr Anetoudis in cross-examination, he denied having requested the referral. He said that he did not really know what a spinal surgeon did, and that the referral was suggested by those treating him.
19 On 1 July 2014, Mr Anetoudis attended upon spinal surgeon, Mr Greg Etherington. In a letter to Dr Quan Dinh at the Bulleen Plaza Medical Centre dated 7 July 2014, Mr Etherington noted that Mr Anetoudis had reported a history of lower back pain commencing approximately two years earlier, with a gradual onset of pain in his lumbar spine. It was noted that his pain had initially been “fairly minor” and that such episodes of pain lasted only a few days, before completely settling. However, at that time, it was noted that the episodes of pain had lasted for longer periods of time and that the pain had become more severe. As at July 2014, Mr Etherington obtained a history from Mr Anetoudis that he experienced pain “in one form or another, every day, despite trying a number of treatments.” At that time, it was noted that Mr Anetoudis’ pain was in the mid-line of the lower lumbar spine, but that he had some minor radiation into his right upper buttock, which had been present for about four months. Mr Etherington noted that there was no history of leg pain, paraesthesia, numbness or any other neurological symptoms in his right leg and that there were no neurological symptoms at all in his left leg.
20 At that time, Mr Etherington noted that Mr Anetoudis was limited in his ability to sit and stand, which then interfered with his work. Mr Etherington noted that Mr Anetoudis worked in the construction business, and that, while he was supervising every now and then, his back would become more uncomfortable when he had to perform lifting and shifting.
21 Mr Etherington noted that Mr Anetoudis was obtaining myotherapy treatment and that he had previously tried physiotherapy, chiropractic and acupuncture treatment.
22 Mr Etherington recommended that further medical imaging be undertaken, subsequent to which he would then review Mr Anetoudis.
23 In cross-examination, Mr Anetoudis accepted the accuracy of the history obtained and recorded by Mr Etherington in this report. He said that, as best he could recall, he did not undergo the further medical imaging, nor could he recall returning to see Mr Etherington.
24 On 20 October 2014, Mr Anetoudis again attended the Bulleen Plaza Medical Centre. At that time, it was noted that he was “awaiting MRI and bone density scan, plus possible back surgery.” It was further noted that Mr Anetoudis had suffered back pain flare-up for the last couple of days for which he had required a medical certificate, and for which he was provided with a further prescription for Panadeine Forte.
25 Mr Anetoudis was cross-examined in relation to this clinical note. He could not recall having discussed back surgery with Mr Etherington, but accepted that, based upon this clinical note, “it may very well have happened.”
26 Mr Anetoudis commenced his employment with the defendant in February 2015. He was employed as a site foreman and he worked on the construction of a residential apartment complex in Moonee Ponds.
27 On 3 May 2015, Mr Anetoudis sent a text message to Mr Blair Grogan, the defendant’s project manager, advising that he would be late to work, as his back was “pretty bad”, and stating that he needed to attend his doctor for a prescription of anti-inflammatory medication, as well as his osteopath.
28 Later that day, Mr Anetoudis sent an email to the defendant’s office, advising that he had missed two hours from work that morning, and stated “hurt my back quite severely and had to see a doctor” before arriving at work by 8.45am.
29 Mr Anetoudis was of the belief that, prior to the bluestone incident, this was the only occasion on which he missed work with the defendant due to any lower back pain.
30 At a later point in May 2015, Mr Anetoudis took one week’s leave in order to complete a course that would enable him to obtain his dogman’s ticket.
31 A few weeks prior to the bluestone incident, Mr Anetoudis tendered his resignation to the defendant, as he was not happy and considered the business to be poorly organised.
The bluestone incident, Mr Anetoudis’ injuries, the treatment he has subsequently received and its consequences
32 On 5 October 2015, Mr Anetoudis said that he arrived at the defendant’s worksite, where he observed a load of timber to have been delivered across the driveway. Mr Anetoudis then proceeded to transfer the timber beams to a more appropriate site, which involved him traversing over uneven bluestone guttering. While carrying two, six metre long beams of timber on his shoulder, Mr Anetoudis said that his right ankle rolled, and he fell to the ground.
33 Mr Anetoudis said that he heard a loud cracking noise in his right ankle, in which he felt severe pain. In his oral evidence, Mr Anetoudis said that he also experienced minor back pain at the time he fell.
34 Later that day, Mr Anetoudis completed the defendant’s first aid register, incident report, and incident investigation form. In so doing, he referred only to his ankle injury and made no mention of any lower back pain. Mr Anetoudis explained the absence of any reference to lower back pain on the basis that his immediate concern, at the time of the fall, was his ankle injury.
35 In his first affidavit sworn 13 December 2017, Mr Anetoudis did not refer to having suffered any lower back pain at the time of the fall. When asked to explain this absence in cross-examination, Mr Anetoudis again stated that he was primarily focused upon his ankle injury at the time of the fall.
36 Following the fall, Mr Anetoudis stated that he attended the Moonee Ponds Medical Centre. At that time, his right ankle was very significantly swollen. Mr Anetoudis said that medical imaging was arranged, and that he was certified for one week off work.
37 An x-ray was taken later that day, which indicated that while there was no fracture in the ankle joint, there was considerable soft tissue swelling. An ultrasound taken at the same time demonstrated a rupture of the anterior talofibular ligament, together with a moderate amount of subcutaneous oedema.
38 Mr Anetoudis said that he spent the week he had off work “lying in bed on my back, progressively getting worse and worse.”
39 Mr Anetoudis was subsequently referred by his general practitioner to orthopaedic surgeon, Mr Andrei Cornoiu, whom he first consulted on 13 October 2015. Mr Anetoudis said that Mr Cornoiu advised him to wear an ankle brace and to undertake physiotherapy treatment.
40 On 21 October 2015, Mr Anetoudis subsequently commenced physiotherapy treatment with Mr Michael Reid at Hills Physiotherapy in Rowville. At that time, Mr Anetoudis said that he had returned to work on light duties, but that he was “hobbling and limping around in an ankle brace.” He also said that, as he spent more time on his feet at work, his back pain became progressively worse, as he did not have any time to sit down and recuperate.
41 In his first affidavit, Mr Anetoudis described his situation at that time:
“I struggled to walk and to do everyday activities. My whole body was out of whack. I began to suffer from pain and tightness through my lower back.”
42 In cross-examination, it was put to Mr Anetoudis that this was the time in which he had first begun to experience lower back pain, following the bluestone incident. Mr Anetoudis did not accept this proposition and simply reiterated his earlier oral evidence, that he had experienced lower back pain at the time of the fall, and that it had simply worsened over time.
43 On 9 November 2015, Mr Anetoudis attended upon general practitioner, Dr Hamid Assaf, complaining of a flare-up of lower back pain. Dr Assaf noted that Mr Anetoudis felt stiffness and that he had “slept in unadequate (sic) position.”
44 On 10 November 2015, Mr Anetoudis was reviewed by Mr Cornoiu in relation to his right ankle injury. At this time, Mr Cornoiu noted a significant improvement in Mr Anetoudis, who was by then able to ambulate much more comfortably. However, at that time, Mr Cornoiu obtained a history from Mr Anetoudis that he had “developed some back pain following the fall” for which he was to be referred to a spinal orthopaedic surgeon for advice.
45 On 13 November 2015, Mr Anetoudis attended upon Mr Reid for physiotherapy treatment, and reported “quite severe right-sided low back pain with associated referred pain and neural symptoms which had progressively worsened.” At that time, Mr Reid obtained a history from Mr Anetoudis of the pre-existing L4-5 disc bulge, which he noted had been managed well over the past two years by another physiotherapist. Mr Reid stated that as “no one specific incident could explain this sudden low back pain, we believed this was caused by his altered gait due to his right ankle injury.”
46 On 24 November 2015, Mr Anetoudis attended upon orthopaedic surgeon, Mr Gerald Quan, regarding his lower back pain. At that time, Mr Quan obtained a history from Mr Anetoudis that he “had been suffering low back and bilateral leg pain symptoms over the prior six weeks.” Mr Quan noted that Mr Anetoudis felt that “all of this started after he sustained a right ankle injury at work.”
47 Mr Quan obtained a history from Mr Anetoudis that he was experiencing pain in his lower back which radiated into his right gluteal and buttock region and down his posterior thigh towards his knee, and that he was getting similar symptoms, to a lesser degree, on his left side. Mr Quan noted that Mr Anetoudis experienced an exacerbation of pain when he rose from a seated position and that he was also experiencing nocturnal pain. Initially, Mr Quan recommended that Mr Anetoudis undergo a CT-guided L4-5 epidural cortisone injection, in the hope that he could avoid spinal surgery. Unfortunately for Mr Anetoudis, he developed a marked deterioration of his pain symptoms in the following weeks, with severe pain radiating down both of his legs, with the right being worse than the left.
48 On 30 November 2015, Mr Anetoudis underwent a further MRI scan of his lumbar spine. It was reported as demonstrating disc degenerative changes from L3-4 to L5-S1, with multiple posterior disc bulges and protrusions. The most significant finding was at L4-5, where there was a large broad-based central disc protrusion which caused severe thecal compression.
49 In early December 2015, after riding his motorcycle for a few hours the day before, Mr Anetoudis said that he woke up with increased stiffness and leg pain, such that he attended the Emergency Department of Monash Medical Centre. Mr Anetoudis was then seen urgently by Mr Quan, who considered him to be suffering from a major neural compressive pathology at L4-5, with pre-cauda equina syndrome.
50 On 9 December 2015, Mr Anetoudis was admitted to the Warringal Private Hospital, where Mr Quan performed a semi-urgent right L4-5 lumbar hemilaminectomy and microdiscectomy.
51 Mr Anetoudis said that he noted an improvement in the neural symptoms into his legs in the four weeks post-operative, but that he continued to suffer ongoing back pain, with stiffness and reduced function.
52 On 7 January 2016, Mr Quan reassessed Mr Anetoudis for the final time. He considered Mr Anetoudis to have made a successful recovery from the surgery, such that he did not require any further review at that time. In relation to his work capacity, Mr Quan was of the opinion that Mr Anetoudis should avoid activities and positions which exacerbated his pain, such as significant lifting, prolonged sitting, standing, walking and stooping and activities involving repetitive forward bending and twisting.
53 Mr Anetoudis said that he also continued to receive physiotherapy treatment in the post-operative period, and that he did so throughout 2016 and up to January 2017. Mr Anetoudis said that he stopped receiving physiotherapy treatment, as it was not providing him with much relief, and that he now just “grins and bears” the pain.
54 Mr Anetoudis also said that he had no need to attend upon his general practitioner, as he understood that nothing further could be done for his back pain.
55 In January 2016, Mr Anetoudis returned to full-time work with a new employer as a crane driver/dogman. In his current role, Mr Anetoudis said that he works up to six or seven days a week, and that he now works approximately one hour more per day than he was working at the time of the bluestone incident. However, he said that he is able to cope with such hours, as he is able to avoid heavy lifting and heavy strenuous physical work.
56 Mr Anetoudis said that the pain in his lower back is constant, but that it varies according to whether he spends most of his day sitting in the crane or standing as a dogman. Mr Anetoudis said that he struggles the most when he stands for a prolonged period.
57 Mr Anetoudis said that he feels very stiff and sore in his lower back and that he has to manage his activities throughout the course of a day, to avoid activities which aggravate his pain, such as bending and twisting movements.
58 Mr Anetoudis said that, as a consequence of his lower back injury, he must avoid employment which involves heavy manual labour. He considers himself fortunate to be in his current role, as he does not believe he would be able to cope with the physically demanding tasks required of a carpenter.
59 Mr Anetoudis said that his need for medication fluctuates with his pain levels. He said that he can go a week at a time without medication, but not a month. He said that when his pain is bad, he can take up to five Voltaren Rapid tablets in one day. He will then do that every day, until his pain gets better.
60 Mr Anetoudis said that he now rarely goes to the gym, and was unable to recall the last time he had in fact attended. He said that he now tends to do exercises at home instead, which help him to improve his core strength, as recommended by his physiotherapist. Mr Anetoudis said that these exercises can take between 20 to 40 minutes. He said that he will generally try and complete these exercises before he goes to work, but that if he starts early, he will complete them at the end of the day.
61 Mr Anetoudis said that he still owns his Harley Davidson motorcycle, but that he has modified it with a new suspension system in order to make it a “softer ride.” In his affidavit, Mr Anetoudis said that he is now restricted in his ability to ride his motorcycle. In cross-examination, Mr Anetoudis said that he can cycle for up to two to three days, and for up to an hour at a time in the summer months. He does not perform mechanical work on his motorcycle, but is able to clean and polish it.
62 Mr Anetoudis said that he is restricted in what he can do around the home. He said he would like to be able to work on renovations in his recently purchased home, but that he is not up to it. However, Mr Anetoudis said that he occasionally does gardening work at home, “as best” he can.
63 In support of his application, Mr Anetoudis filed an affidavit from his wife, Ms Nicole Moldrich, sworn 15 November 2018. In her affidavit, Ms Moldrich stated that, prior to Mr Anetoudis suffering his injury the subject of this claim, he was very active and enjoyed lifting weights at the gym and riding his motorcycle. Subsequent to the bluestone incident, however, Ms Moldrich stated that Mr Anetoudis was restricted in the weights that he could lift at the gym as well as in his ability to ride his motorcycle, in the way that he used to.
64 Ms Moldrich stated that Mr Anetoudis’ pain is worse in the mornings and at the conclusion of his working day, and she has observed that his pain is aggravated by prolonged sitting or standing.
Medico-legal evidence
65 Mr Anetoudis’ solicitors arranged for him to be examined by neurosurgeon, Mr Mohammed Awad, in July 2018. In his report dated 27 July 2018, Mr Awad recorded that Mr Anetoudis had a week off work after having rolled his ankle, and that, “over the next week or two he realised he had some back pain and then severe leg pain and weakness”. Mr Awad noted that, one morning in November 2015, Mr Anetoudis woke up unable to walk. He then noted that Mr Anetoudis subsequently attended the Emergency Department, and that in December 2015, he underwent an L4-5 laminectomy and discectomy.
66 At the time of the examination, Mr Awad noted that Mr Anetoudis complained of intermittent lower back pain, and stiffness and soreness in his back after periods of prolonged sitting or standing.
67 Mr Awad then noted Mr Anetoudis’ past medical history, and, without providing any details, stated that he considered Mr Anetoudis’ past medical history “was non-contributory for any previous lumbar spine injuries or any symptoms suggestive of a pre-existing lumbar spine condition”. In cross-examination, Mr Anetoudis accepted that he must have provided this history to Mr Awad.
68 It was not until Mr Anetoudis’ solicitors subsequently provided Mr Awad with a CT scan report of 30 January 2014 and Mr Etherington’s letter of 7 July 2014, that Mr Awad obtained a more fulsome history as to Mr Anetoudis’ pre-existing lumbar spine condition. In a supplementary report dated 16 November 2018, having then considered the more detailed history, Mr Awad noted that Mr Anetoudis had previously suffered some elements of degenerative lumbar spine pain, but that he was “functional during this period”. In such circumstances, Mr Awad remained of the opinion that the bluestone incident was a “significant contributing factor to aggravation of his pre-existing lumbar spine condition and more so the dominant contributing factor to his more acute disc prolapse and subsequent cauda equina requiring surgical intervention”.
69 Mr Awad was of the opinion that, as a consequence of his lower back injury, Mr Anetoudis did not have the physical capacity to undertake employment as a carpenter, but had the capacity to work as a crane driver. Further, Mr Awad was of the opinion that, as a consequence of Mr Anetoudis’ injury and surgery, he was likely to be restricted with regards to employment or activities which involved repetitive bending, lifting, twisting, stooping, pushing and pulling, together with prolonged sitting or walking.
70 Mr Anetoudis’ solicitors also arranged for him to be examined by orthopaedic surgeon, Mr Peter Moran, in July 2018. In his report dated 19 September 2018, Mr Moran noted that Mr Anetoudis’ immediate concern after falling in the bluestone incident was for his right ankle. After taking a week off work and after wearing a moon boot for six weeks, Mr Moran recorded that “he was constantly limping and with this, he experienced a gradual increase in lower back pain”. It was then noted that, approximately two months later, Mr Anetoudis woke up on a Sunday morning and could not move as a consequence of severe lower back pain.
71 When this history was put to Mr Anetoudis in cross-examination, he accepted its accuracy, and said that he believed the morning he had woken up unable to move, was the morning after which he had spent one to two hours riding his motorcycle the previous day.
72 Mr Moran noted that Mr Anetoudis’ main concern remained the lower back pain radiating into his buttocks, particularly on the left side. Mr Moran noted that Mr Anetoudis said that his ability to sit was limited to three hours, and that his walking tolerance was up to one kilometre, but at a slow pace. Mr Moran noted that Mr Anetoudis’ sleep remained variable and that he slept badly after a long day at work and woke frequently during the night with back pain.
73 Mr Moran was of the opinion that Mr Anetoudis’ back pain had been triggered by the initial fall and perhaps exacerbated by limping.
74 It is apparent from this first report, that Mr Moran did not obtain any history of Mr Anetoudis’ previous lower back symptoms. Accordingly, he was subsequently provided with the CT scan of January 2014, and Mr Etherington’s letter of July 2014. With that additional material, Mr Moran provided a supplementary report dated 14 November 2018. Mr Moran stated that, in his opinion, the report of the 2014 CT scan showed pre-existing discogenic pathology. However, Mr Moran considered there to have been a significant change in symptomology and in spinal function as a consequence of the bluestone incident, to the extent that his MRI scan, taken subsequent to that incident, suggested “a major disc sequestration, where the disc had ruptured and extruded disc nuclear material into the spinal canal”. Mr Moran stated that this was a different scenario to that suggested by the CT scan of January 2014.
75 Mr Moran stated that, in his opinion, the radiological evidence of spinal pathology prior to October 2015, was not uncommon in people who undertake manual work, and that it did not necessarily suggest significant disability at that time.
76 Mr Anetoudis also relied upon a medical opinion obtained by the defendant from Dr David Elder, a consultant in occupational and environmental medicine. Dr Elder examined Mr Anetoudis in October 2017 for the purpose of determining his claim for permanent impairment regarding his lower back injury, which he claimed to have sustained as a consequence of the bluestone incident. In his report dated 30 October 2017, Dr Elder noted that Mr Anetoudis originally injured his ankle in the bluestone incident and that he subsequently had difficulty weight bearing. He then obtained a history that, in December 2015, Mr Anetoudis attended the Monash Emergency Department with a complaint of lower back pain within two weeks of the ankle injury. Dr Elder then noted that an L4-5 laminectomy and discectomy were subsequently performed.
77 Dr Elder noted that Mr Anetoudis had a past history of lower back symptomology managed with physiotherapy, and that in his original WorkCover claim form, he had claimed his back injury as an aggravation.
78 Dr Elder expressed an opinion that the statutory insurer should accept liability for Mr Anetoudis’ lower back injury, although he did not expressly state the basis upon which he came to this opinion.
79 The defendant relied upon a medical opinion it had obtained from orthopaedic surgeon, Mr Michael Dooley, following his review of all relevant clinical notes regarding Mr Anetoudis’ lumbar spine, including all relevant medical attendances both prior to and subsequent to the bluestone incident. Mr Dooley did not examine Mr Anetoudis for the purpose of providing this opinion.
80 In his report dated 19 September 2018, Mr Dooley stated that, in his opinion, the fall itself, or a change in Mr Anetoudis’ gait subsequent to the bluestone incident, did not lead to the development of the disc prolapse at L4-5. Instead, Mr Dooley considered that the disc prolapse developed “as part of the evolution of the underlying significant degenerative disc disease at that level”.
Mr Anetoudis’ reliability and credibility as a witness
81 From the outset, it was clear that Mr Anetoudis was a very poor historian. He had significant difficulties providing detail as to the treatment he had received for his lower back injury in the three years prior to the bluestone incident. In his first affidavit, Mr Anetoudis did not make reference to either his referral to Mr Etherington, or the CT scan of his lumbar spine from January 2014. Further, Mr Anetoudis was unable to recall the names of the chiropractors or physiotherapists from whom he received treatment during this period.
82 However, I accepted Mr Anetoudis’ explanation for his failure to recall such details, on the basis that he has a poor memory, has lived in lots of places and has genuine difficulty recalling whom he has previously consulted and where. Further, when such medical records were put to Mr Anetoudis in cross-examination, he readily accepted the contemporaneous records and did not dispute the contents of such notes. By way of example, when the reference to “possible back surgery” in the medical record of 20 October 2014 was put to Mr Anetoudis, he accepted that such a discussion may very well have occurred, notwithstanding his inability to recall it. In this regard, I considered Mr Anetoudis to be a genuine and cooperative witness, despite his difficulties recalling details of his medical history.
83 At the commencement of his oral evidence, Mr Anetoudis gave evidence that he suffered mild lower back pain at the time he fell. He made no reference to suffering such pain in his prior affidavits. To the contrary, in his first affidavit, Mr Anetoudis stated that his lower back pain “began” after he had returned to work on light duties, in the context of him struggling to walk and his body being “out of whack”.
84 Dr Assaf was the first doctor to record a complaint of lower back pain subsequent to the bluestone incident. He took a history from Mr Anetoudis that he had suffered a flare-up of pain after having slept in a poor position. I consider such evidence to be consistent with his oral evidence that he experienced lower back pain after lying in bed for a week. I consider it significant that Dr Assaf did not obtain a history that such pain had commenced from the time of the bluestone incident.
85 The next doctor to whom Mr Anetoudis reported lower back pain was Mr Cornoiu. I note that while he also did not obtain a history that such pain arose at the time of the bluestone incident, he was of the opinion that it was related to Mr Anetoudis’ ankle injury. In such circumstances, I consider it reasonable to infer from this comment that Mr Anetoudis’ lower back pain came on as a consequence of his immobilisation due to his ankle injury.
86 Mr Reid saw Mr Anetoudis a few days later, at which time he was of the opinion that no one specific incident could explain the sudden lower back pain. He therefore attributed such pain to Mr Anetoudis’ altered gait. If the lower back pain was experienced at the time of the bluestone incident as Mr Anetoudis now claims, I consider it reasonable for this history to have been provided to Mr Reid. I note, however, that such a history is inconsistent with Mr Reid’s note that there was no specific incident.
87 Mr Anetoudis sought to explain the absence of any recorded history of back pain at the time of the bluestone incident on the basis that he was initially focused on his very swollen ankle and not the mild back pain. I consider this to be a reasonable explanation in the days immediately following the bluestone incident. I am not satisfied, however, that such an explanation can justify the absence of any recorded history of immediate back pain following the bluestone incident, in the reports of any of Mr Anetoudis’ treating medical practitioners, or medico-legal doctors. Further, it does not explain why he did not refer to this immediate pain in his previous affidavits.
88 In such circumstances, I do not accept Mr Anetoudis’ evidence as to when he first experienced lower back pain subsequent to the bluestone incident.
89 The defendant relied upon video surveillance taken of Mr Anetoudis in July and November 2018. Such footage showed Mr Anetoudis shopping, putting petrol in his motorcycle, riding his motorcycle, cleaning his motorcycle and replacing timber sleeper walls in his garden. I consider the video to have showed Mr Anetoudis going about these tasks with no apparent restriction, save for a limp which related to an unrelated knee injury.
90 Mr Anetoudis was cross-examined as to why he had not previously told the court about the extensive nature of the landscaping work he had undertaken in his garden. Mr Anetoudis said that he did not consider such work to have been an issue, as it was within the 15 kilogram restriction imposed upon him by Mr Quan. Mr Anetoudis also stated that he performed such work during a week that he was on annual leave, and that he could not physically undertake such work after a normal working day.
91 I consider the video surveillance to have simply shown a young man, getting about the normal activities of his daily life. While I did not observe any apparent restriction in his lower back, I did not consider the footage to have shown Mr Anetoudis doing anything inconsistent with his evidence. He accepted that he still rides and cleans his motorcycle. He also said that he works in his garden when he is able. As such, I am of the opinion that the video surveillance did nothing to discredit Mr Anetoudis’ claim that he suffers constant lower back pain, and that he is restricted in some activities.
92 Save for my reservation as to when, after the bluestone incident, he first suffered lower back pain, I otherwise considered Mr Anetoudis to be a credible witness. I considered him to be a stoic man, who is motivated to do as much as he can, given the limitations with which he is faced.
Aggravation to Mr Anetoudis’ pre-existing lumbar spine injury
93 Mr Anetoudis had a pre-existing disc protrusion at L4-5 with nerve root compression, and an L5-S1 broad based disc bulge with slight left disc protrusion. This was diagnosed in a CT scan in January 2014.
94 Notwithstanding this diagnosis, Mr Anetoudis was able to continue in full-time employment, and, in the 12 months prior to the bluestone incident, he had missed only two hours of work in early May 2015. Mr Anetoudis continued to ride his motorcycle and still worked out in the gym on a very frequent basis.
95 I am satisfied that, prior to the bluestone incident, Mr Anetoudis did not suffer from constant lower back pain. He had a functional spine, in that he was not restricted in his activities at work or in his leisure time.
96 To succeed in his claim, Mr Anetoudis must satisfy me that the bluestone incident was a cause of the aggravation to his pre-existing lower back injury, and that the consequences arising from the aggravation are serious.
97 For the reasons explained above, I am not satisfied that Mr Anetoudis experienced immediate lower back pain at the time of the bluestone incident. However, I am satisfied that, within a very short period of time thereafter, Mr Anetoudis began to experience lower back pain, which gradually worsened, such that, within two months of the bluestone incident, he required emergency surgery. I consider it significant that Mr Anetoudis initially required time in bed during this period, and that he later hobbled around, with an altered gait as he recovered from his ankle injury.
98 Mr Quan did not express a direct opinion as to the cause of Mr Anetoudis’ lower back injury, although he noted that Mr Anetoudis felt that the injury had started after the bluestone incident.
99 Mr Cornoiu also did not express a direct opinion as to the cause of Mr Anetoudis’ lower back injury, although he noted that Mr Anetoudis developed some back pain after the bluestone incident.
100 Mr Awad and Mr Moran both accepted that Mr Anetoudis’ lower back injury arose as a consequence of the bluestone incident. Neither were initially aware of Mr Anetoudis’ pre-existing lower back condition. However, once provided with Mr Etherington’s detailed letter and the CT scan report of January 2014, both Mr Awad and Mr Moran maintained their opinion in relation to causation. In circumstances where Mr Awad did not explain the basis upon which he reached his opinion on causation, it is of little assistance. Mr Moran, however, expressly stated that, in his opinion, Mr Anetoudis’ back injury was related to the fall itself, as well as the limping.
101 Dr Elder simply accepted that the bluestone incident caused Mr Anetoudis’ lower back injury, but, like Mr Awad, he did not explain the basis upon which he reached this opinion.
102 Mr Dooley disputed that there is any such a causal relationship. In his report, Mr Dooley referred to patients with ankle injuries having difficulty walking in the first two weeks post-injury. However, he did not appear to consider Mr Anetoudis’ evidence that he had hobbled around for longer than just two weeks. Further, Mr Dooley made no reference to Mr Anetoudis having an extended period of time in bed after the bluestone incident, or to Dr Assaf’s history of Mr Anetoudis experiencing back pain after sleeping in an inadequate position. I consider these two matters to be of significance in the two months between the bluestone incident and Mr Anetoudis’ need for surgery. Mr Dooley’s opinion that the prolapse at L4-5 simply developed as part of the evolution of the underlying disc disease, does not appear to address the role, if any, these circumstances played in the acceleration of that evolution.
103 The question of causation is one of common sense.[1] I am most assisted by Mr Moran’s opinion on causation in this matter. I note that his opinion also accords with the other medical opinions, save for Mr Dooley’s, which I do not accept for the reasons stated above. I also accept Mr Anetoudis’ evidence that his lower back pain progressively worsened over this two month period.
[1]Zlateska v Consolidated Cleaning Services Pty Ltd & Anor [2006] VSCA 141 at [9]
104 I consider such a finding on causation to be consistent with the close temporal connection between the bluestone incident, and the time in which Mr Anetoudis needed surgery, in the absence of any other specific incident in that short intervening period.
105 Having accepted that the bluestone incident was a cause of this aggravation, I must now must consider only the consequences arising from the aggravation.[2] It is impermissible for me to consider the aggregated impairment. Instead, in assessing Mr Anetoudis’ application in respect of his spinal impairment, there must be a comparison between the plaintiff’s pre-existing condition and the aggravated state.
[2]Petkovski v Galletti [1994] 1 VR 436
106 As stated above, notwithstanding his pre-existing pathology, I do not consider Mr Anetoudis suffered any permanent restrictions prior to the bluestone incident. Despite his consultation with a spinal surgeon, and the possibility of surgery having likely been discussed 14-18 months earlier, Mr Anetoudis proceeded to get on with the activities of daily living, and I am satisfied that he enjoyed a full and unrestricted life. Therefore, in assessing his application, I can consider almost the totality of his claimed consequences, save for the pre-existing occasional need for anti-inflammatory medication and physiotherapy treatment.
Mr Anetoudis’ claimed pain and suffering consequences
107 I must now assess whether Mr Anetoudis’ aggravated spinal impairment has caused him to suffer consequences that are more than significant or marked, and that are at least very considerable.
108 In the Court of Appeal decision of Haden Engineering Pty Ltd v McKinnon,[3] Maxwell P stated that, in assessing a plaintiff’s pain and suffering consequences, regard should be had as to what the plaintiff says about the pain; what the plaintiff does about the pain; what the doctors say about the extent and intensity of the pain; and what the objective evidence demonstrates about the disabling effects of the pain.
[3][2010] VSCA 69
109 I considered Mr Anetoudis to be a creditworthy witness, and this bears significantly on my assessment of his evidence regarding his pain experience.
110Mr Anetoudis underwent emergency surgery in December 2015. I consider such surgery to be a consequence of some significance.
111Despite having made a reasonable recovery from this surgery, I am satisfied that Mr Anetoudis has continued to suffer ongoing pain in his lower back, which is always there, to a varying degree.
112Mr Anetoudis works full-time as a crane driver/dogman. Mr Quan detailed a range of restrictions which would apply to Mr Anetoudis in a work environment. It is indeed fortunate for Mr Anetoudis that his employment is consistent with such restrictions and that he has flexibility enough in this role to alternate between sitting and standing, and to avoid heavy lifting. However, I accept that, notwithstanding these restrictions, Mr Anetoudis’ pain levels are exacerbated by his work, and that his pain can worsen depending upon what he does at work each day.
113A return to full-time employment can tend against a conclusion that the pain and suffering consequences of the injury are “serious”.[4] However, such a matter is not determinative,[5] and it would be “unfortunate”[6] if Mr Anetoudis’ application was treated less favourably than a worker who simply resigned himself (or herself) to such injury.[7]
[4]Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12 at [26]
[5]Stijepic v One Force Group Australia Pty Ltd & Anor [2009] VSCA 181 at [47]
[6]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at [3]
[7]Ibid
114The doctors accept Mr Anetoudis’ account of pain. Further, none of the doctors recommend further treatment. In such circumstances, I consider it reasonable that Mr Anetoudis no longer consults his general practitioner on a regular basis, nor attends for physiotherapy treatment. Instead, Mr Anetoudis undergoes a regular self-managed exercise program at home to maintain his lower back condition.
115Mr Anetoudis could not say with any certainty how often he takes pain medication, as it depends upon his pain levels. I consider such a response to demonstrate the extent to which Mr Anetoudis attempted to give genuine evidence in this case, without seeking to embellish his need for medication.
116In the video surveillance, Mr Anetoudis demonstrated his ability to be very active in his garden. He was able to lift timber beams, carry concrete bags, mix and pour concrete. However, I accept that such activity was only able to be performed while he was on annual leave and I consider such activity to be consistent with the restrictions imposed upon him by Mr Quan.
117Further, Mr Anetoudis is still able to ride his Harley Davidson motorcycle, two to three times a week, for an hour at a time in the summer months. Both he and his wife claimed that this was less than he was able to ride prior to the bluestone incident. However, without details as to how often he rode the motorcycle prior to the bluestone incident, I attach very little weight to this claimed consequence.
118Another consequence to Mr Anetoudis is the impact his lower back impairment has had upon his love of attending the gym. I accept that attending the gym was his most enjoyable pastime, prior to the bluestone incident, for both the activity itself, as well as the associated socialising. Mr Anetoudis’ evidence that he sometimes attended the gym twice a day, demonstrates just how important this activity was to him. For a man of his age, I am satisfied that his inability to attend the gym at the frequency with which he previously did, and to perform the exercises that he previously did, is a very significant consequence to Mr Anetoudis.
119 In determining this case, I have considered that Mr Anetoudis was only 29 years old at the time of the bluestone incident, and that he is now just 32 years of age. As was also noted by Ashley JA and Beach AJA in Stijepic v One Force Group Australia Pty Ltd & Anor:
“…when judging the pain and suffering consequences for the appellant by comparison with other cases, we consider that it is relevant to look at the likely period to which those consequences will be experienced. All things being equal, impairment consequences which a man (or woman) will have to put up with for 40 years might well be judged more serious than the same consequences which a man (or woman) may have to put up with for a much shorter period of time.”[8]
[8][2009] VSCA 181 at [43]
120I have compared Mr Anetoudis’ case with other cases in the range of possible impairments. Whether or not a plaintiff has established the requisite “serious injury”, “is a question of impression which is influenced by elements of fact, degree and value judgment”.[9]
[9]Carbone v Toyota Motor Corp [2017] VSCA 249 at [66]
121 Considering all of the evidence in this matter, I am satisfied that there are a range of consequences that Mr Anetoudis suffers and will continue to suffer, on a permanent basis, “over the whole of an adult lifetime”.[10] I am satisfied that these consequences can collectively be described as at least very considerable. I will therefore make the consequent orders.
[10]Davidson v TAC [2015] VSCA 12 at [51]
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