Asfour v Cornerstone Human Resources Pty Ltd
[2019] VCC 176
•27 February 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-18-02529
| BASHEER ASFOUR | Plaintiff |
| v | |
| CORNERSTONE HUMAN RESOURCES PTY LTD (ACN 004 205 449) | Defendant |
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JUDGE: | HER HONOUR JUDGE HINCHEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 and 29 November 2018 | |
DATE OF JUDGMENT: | 27 February 2019 | |
CASE MAY BE CITED AS: | Asfour v Cornerstone Human Resources Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 176 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – paragraph (a) of the definition of “serious injury” – pain and suffering – whether injury to lumbar spine is organic in nature – whether injury resulted in serious injury consequences – relevant principles
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)
Cases Cited:Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Hunter v Transport Accident Commission & Avalanche [2005] VSCA 1; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Fokasv Staff Australia Pty Ltd [2013] VSCA 230; Victorian WorkCover AuthorityvNguyen [2016] VSCA 284; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Davidsonv Transport Accident Commission [2015] VSCA 12; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
Judgment: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N J Dunstan | Slater & Gordon Pty Ltd |
| For the Defendant | Mr T Storey | Wisewould Mahony |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s335(2) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for injury suffered by the plaintiff in the course of his employment with Cornerstone Human Resources Pty Ltd (“the employer”) on 28 October 2015.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
Relevant legal principles
3 The application is brought pursuant to clause (a) of the definition of “serious injury” as that term is defined in s325(1) of the Act, namely:
“‘Serious injury’ means –
(a) permanent serious impairment or loss of a body function … .”
4 The impairment of body function relied upon is function of the lumbar spine.
5 In order to establish an entitlement to recover damages under the Act, apart from satisfying the definition of a “serious injury”, by s5 of the Act, the injury must have arisen out of or due to the nature of the plaintiff’s employment with the employer on or after 1 July 2014. As set out in s325(1), the impairment of the body function must be permanent.
6 The plaintiff’s burden of proof on the application is on the balance of probabilities.
7 By s325(2)(c) of the Act, it is the “consequences” of the impairment which produce the “pain and suffering” which must be “serious” – that is, the plaintiff must prove, on the balance of probabilities, that the impairment or loss of body function results in “pain or suffering” that is “when judged by comparison with other cases in the range of possible impairments … fairly described as being more than significant or marked, and as being at least very considerable”.
8 Section 325(2)(h) requires me to disregard all psychological or psychiatric consequences in determining an application which relates to a physical impairment.
9 By s325(2)(b), in determining the “consequences” of the injury, the Court is required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury.
10 In determining the application, the Court:
(a) must assess whether “the injury” is a “serious injury” as at the time the application is heard.[1] In relation to the assessment of the pain and suffering consequences of an injury, it has been held that this task is largely a question of impression or value judgment;[2]
[1]Section 325(2)(j) of the Act
[2]See Stijepic vOne Force Group Aust Pty Ltd & Anor [2009] VSCA 181 at paragraph [41]; see also Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628, and Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
(b) must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application.[3]
[3]See generally HuntervTransport Accident Commission & Avalanche [2005] VSCA 1 at paragraphs [23]-[26]
11 In reaching my conclusions in this matter, I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[4] and Grechv Orica Australia Pty Ltd & Anor.[5]
[4](2005) 14 VR 622
[5](2006) 14 VR 602
12 The plaintiff relied upon two affidavits, gave viva voce evidence and was cross-examined.
13 In addition, both parties relied upon medical reports and other materials which were contained within Court Books tendered in evidence.[6] I have read all of the tendered material. In this judgment, I will refer only to the relevant parts of the tendered materials.
[6]The plaintiff’s Court Book was marked as exhibit P1; the defendant’s Court Book was marked as exhibit D1
The Plaintiff’s background
14 The plaintiff was born in February 1994[7] and is currently aged twenty-four years. He completed Year 12 at Lalor North Secondary College.[8] After leaving school he worked briefly in a carwash before commencing an apprenticeship as a sheet metal worker. This apprenticeship lasted about one month before he was made redundant.[9]
[7]Exhibit P1, page 20
[8]Exhibit P1, page 20
[9]Exhibit P1, page 20
15 In or about early 2014, he started working for the employer. The employer is a job placement agency. When he first started working for the employer he was placed at a Salad Fresh bar. He worked there for about one year.[10]
[10]Exhibit P1, page 20
16 In about April 2015, the plaintiff was placed by the employer with a company called Tibaldi Meats.[11] He was employed as a casual process worker, working from Monday to Friday, about eight hours per day. His work for Tibaldi Meats was very physical work and on occasion very heavy work. He was frequently required to lift boxes of meat weighing over 30 kilograms above head height by himself.[12]
[11]Exhibit P1, page 20
[12]Exhibit P1, page 20
The incident
17 In his affidavit sworn 21 November 2017, the plaintiff described the accident (“the incident”) and its immediate aftermath in the following terms:[13]
[13]Exhibit P1, page 21
“8.On or about 28 October 2015, at about 2:00pm, I was pushing a very heavy rack of meat on a trolley. I was required to do this numerous times a day. I was pushing the trolley when it got stuck on a gutter. The wheels of this trolley were always getting stuck on this gutter but normally I was able to manhandle the trolley over the gutter. On this occasion the wheels became stuck, I fell backwards and the trolley of meat fell on top of me. The trolley of meat was extremely heavy. I would estimate that it weighed approximately 400 kilograms but this is only a guess.
9.The trolley was removed from on top of me by some of my co-workers and I went straight to see the doctors. I went and saw a doctor at the Rex Medical Centre in Bundoora. I saw a doctor at this clinic on the day of my accident. I had been to this centre once before about one year before my injury. I was given medication for my pain and a medical certificate for work.
…
11.On 2 November 2015 I had a CT scan taken of my lumbar spine. I understand that this CT scan showed that I had a disc prolapse at the L5/S1 level.”
18 Included in the Plaintiff’s Court Book were reports of a CT scan performed on 2 November 2015[14] and an MRI scan performed on 16 December 2016.[15] Both investigations showed disc herniation at the L5-S1 level, with the distance which the disc material extends into the spinal canal increasing from 6 millimetres on the 2015 CT scan, to 8 millimetres on the 2016 MRI scan.
[14]Exhibit P1, page 36
[15]Exhibit P1, page 37
19 The 2016 MRI report notes that “there is a high T2 signal focus and a small right paracentral protrusion measuring 8mm, suggestive of an annulus fissure …”.
20Both investigations also note a disc bulge at the L4-5 level.
The Plaintiff’s evidence
21 The plaintiff swore two affidavits, the first on 21 November 2017 and the second on 23 November 2018.
Pain and suffering
22 In summary, the plaintiff’s evidence as to the pain and suffering consequences which he experiences is as follows:
Experience of pain, medication and treatment
(a)he suffers from constant, daily pain in his back.[16] He gets intermittent pain down both of his legs, worse in the left leg.[17] His leg pain comes and goes, but the back pain is constant.[18] His back pain is worse than the leg pain and is aggravated by any prolonged sitting, standing or walking. He avoids any repetitive bending, twisting or heavy lifting;[19]
[16]Exhibit P1, page 24, paragraph 26; page 85, paragraph 9
[17]Exhibit P1, page 24, paragraph 26
[18]Exhibit P1, page 24, paragraph 26
[19]Exhibit P1, pages 24-25, paragraph 26; page 85, paragraph 9
(b)he suffers more severe back pain at least two or three times per week. When this occurs, he needs to rest and take extra medication.[20] These flare-ups vary in intensity and duration but on average, the plaintiff experiences a flare-up of his back pain at least two or three times a week;
[20]Exhibit P1, page 86, paragraph 10
(c)he continues to attend his general practitioner, Dr Tan, about once a month.[21] Dr Tan prescribes the plaintiff’s medications which are currently as follows:[22]
[21]Exhibit P1, page 84, paragraph 3
[22]Exhibit P1, page 84, paragraph 3
(i) Tramadol, 150 milligram x 1 daily;
(ii) Panadeine Forte, 30 milligram x 1 daily;
(iii) Lyrica, 150 milligram x 2 daily, and
(iv) Mirtazapine, 30 milligram (for depression).
Ability to sleep
(d)originally the plaintiff’s sleep was intermittently disturbed at night by back pain. Occasionally he woke up very early in the morning at about 4.00am, because of the pain.[23] This has improved recently due to the medication he is taking;[24]
[23]Exhibit P1, page 25, paragraph 27
[24]Exhibit P1, page 86, paragraph 11
Activities of daily living
(a)he is restricted in relation to performing household chores.[25] In particular, he does not carry any heavy shopping bags, he does not mow the lawns and cannot carry heavy baskets of washing. He avoids bending down to wash floors and avoids taking out heavy garbage bins. He does not try to manoeuvre or lift heavy furniture;[26]
[25]Exhibit P1, page 25, paragraph 27; page 85, paragraph 7
[26]Exhibit P1, page 25, paragraph 28
(b)prior to the incident, he was very involved in a number of sports. He used to go to the gym to lift weights at least three times a week.[27] He is no longer able to lift heavy weights because of his back injury.[28] Following the incident, he went to the gym to do the rehabilitation exercises provided by his physiotherapist.[29] He also used the spa and pool at the gym to do hydrotherapy.[30] That gym has now closed.[31] He is no longer able to enjoy doing a heavy and strenuous physical workout because of his back injury. He used to be a very fit and active person, but he is “nowhere near as fit as I was” because of the problems he has with his back;[32]
[27]Exhibit P1, page 25, paragraph 29
[28]Exhibit P1, page 25, paragraph 29
[29]Exhibit P1, page 25, paragraph 29
[30]Exhibit P1, page 85, paragraph 8
[31]Exhibit P1, page 85, paragraph 8
[32]Exhibit P1, page 26, paragraph 32
(c)prior to the incident, the plaintiff enjoyed playing social games of basketball, soccer, cricket or tennis with friends.[33] In particular he played regular games of basketball and soccer with friends.[34] He also played occasional games of tennis and cricket.[35] He has stopped playing any of those sports because of his back injury.[36] He misses this social interaction;[37]
[33]Exhibit P1, page 25, paragraph 30
[34]Exhibit P1, page 26, paragraph 30; page 86, paragraph 13
[35]Exhibit P1, page 26, paragraph 30
[36]Exhibit P1, page 26, paragraph 30
[37]Exhibit P1, page 86, paragraph 13
(d)the plaintiff previously enjoyed an active social life.[38] He is far less social than he used to be. In particular, he avoids going out socially because of his difficulty with prolonged standing;[39]
[38]Exhibit P1, page 26, paragraph 31
[39]Exhibit P1, page 26, paragraph 31; page 86, paragraph 14
(e)the plaintiff has difficulty with driving for long periods because of his back injury, in particular his difficulty with prolonged sitting. If he has to drive for more than about half an hour then this will cause a sharp increase in his low back pain;[40]
[40]Exhibit P1, page 26, paragraph 33; page 87, paragraph 15
(f) the plaintiff has become depressed as a consequence of his back injury.[41] As set out above, he now takes Mirtazapine. This is helping his depression.[42] He finds it very depressing that he has not been able to return to any sort of work. All of his cousins and friends are working.[43] He said he feels like he is “falling behind in life because of my back injury and my inability to find suitable employment”;[44]
[41]Exhibit P1, page 87, paragraph 16
[42]Exhibit P1, page 87, paragraph 16
[43]Exhibit P1, page 87, paragraph 16
[44]Exhibit P1, page 87, paragraph 16
Return to the workforce
(g) immediately following the incident, the plaintiff had some time off and then returned to work on light duties for a period.[45] He has not worked since around mid-January 2016, when he complained to his employer that prolonged sitting was hurting his back “and they stopped giving me light duties to do”.[46] He has not worked at all since ceasing work for the employer at this time.[47] He has been looking for jobs that do not involve physical labour, such as in “customer service” or as a “tour guide”.[48] He has done a course to assist with his rehabilitation with WISE Employment.[49] He is currently in receipt of Centrelink payments;[50]
[45]Exhibit P1, pages 22-23, paragraphs 12-17
[46]Exhibit P1, page 23, paragraph 17
[47]Exhibit P1, page 23, paragraph 18
[48]T15, Lines 5-9
[49]T15, Line 16
[50]Exhibit P1, page 24, paragraph 25; page 84, paragraph 3
Current capacity for work
(h) the plaintiff is currently looking for work.[51] He has applied for a number of jobs. He looks for work within his restrictions. He has been unsuccessful in obtaining any of the jobs for which he has applied.[52] He has to tell prospective employers that he has a back injury and that he cannot do any heavy lifting;[53]
[51]Exhibit P1, page 84, paragraph 5; page 87, paragraph 17
[52]Exhibit P1, page 84, paragraph 5
[53]Exhibit P1, page 85, paragraph 5
Cross-examination
(i) under cross-examination, the plaintiff said:
(i) the Rex Medical Clinic in Bundoora was where his cousin’s doctor worked, and he rarely gets sick, so he went there following the incident because he had been there before;[54]
[54]T16, Lines14-23
(ii) Sonic Health Plus in Tullamarine was his employer’s general practitioner and he went there because the employer told him to;[55]
[55]T18, Lines 26-30
(iii) Dr Li at Sonic Health Plus certified him fit for suitable light duties and he “gave it a shot,”[56] but it “didn’t go well” – he did not last a day before he was transferred into the office for office-based duties;[57]
[56]T19, Lines 2-29
[57]T20, Lines 6-9
(iv) he went to see a general practitioner at Settlement Road Medical Centre, because it was closer to his home;[58]
[58]T21, Lines 24-31
(v) he described to a general practitioner there that he was finding even the office work difficult at his place of employment,[59] that he was “barely able to continue” his job and it was “very painful” at the end of the day;[60]
[59]T22, Lines 24-28
[60]T24, Lines 2-3
(vi) he agreed that he told his treaters in early December 2015 that his condition “was improving” at that time;[61]
[61]T26, Line 11-16
(vii) around 22 December 2015, he told Dr Hermiz that he was “feeling better in himself”, that he was working “four hours a day” [62] but was “struggling at times”;[63]
[62]T27, Lines 30-31
[63]T27, Lines 11-20
(viii) the reason he was struggling was “because of prolonged sitting”. He said that “I would go and walk around, and the employers really did not like that”;[64]
[64]T28, Lines 1-2
(ix) he stopped taking his medication, Nurofen, because it “really didn’t help that much”, not because he felt he did not need it: “what’s the point of taking it?”;[65]
[65]T27, Lines 21-28
(x) despite the fact that he was in pain, the general practitioner certified that he was fit to work six hours per day. Although the plaintiff was not happy about this, he agreed to try it because he wanted to get back to work;[66]
[66]T29, Lines 1-16
(xi) he agreed that he may have told Dr Hermiz on 6 January 2016, that “the back pain was much better,” although this proposition did not “ring a bell”.[67] He explained that in any case, the workplace shut down over Christmas and he was not working: “I wasn’t aggravating the area so it’s not that it’s getting better, it’s just that I’m not aggravating the area. It’s not making it hurt as much as if I were to sit for those periods of hours.”[68] Later, he explained that the pain never goes away, his experience was that work aggravated what was a base level of pain from which he suffered all the time.[69] He said that there are never any periods when he has no pain at all;[70]
[67]T29-30
[68]T30, Lines 8-15
[69]T55-56
[70]T56, Lines 14-16
(xii) he did not go back to work with his employer because Dr Hermiz had certified him fit for pre-injury duties, but the plaintiff wanted to stay on light duties because of the pain;[71]
[71]T39, Lines 1-11
(xiii) although he never went back to work, he did other things like go to the gym[72] and lost around 30 kilograms of weight.[73] He did “what my physiotherapist told me to do”;[74]
[72]T39, Lines 12-16
[73]T39, Lines 17-20
[74]T39, Lines 21-26
(xiv) in April 2017, he started seeing Dr Tan at Sunshine Medical Centre at his cousin’s suggestion. His cousin would drive him to see Dr Tan, or he would drive himself.[75] In the past his cousin would take him when he could because “driving was really difficult.”[76] When it was suggested that he was quite capable of driving the 45 minutes to see Dr Tan, he said “I wasn’t capable, but I was doing it … because I had to … I was doing it with pain”.[77] At the present time, either his mother or his cousin drives him to see Dr Tan, because he reached the stage where “I didn’t want to do it anymore”;[78]
[75]T41, Lines 7-30
[76]T42, Lines 4-9
[77]T51, Lines 16-23
[78]T51, Lines 8-15
(xv) he obtained some relief at the gym from hydrotherapy, which he would do on its own or at the end of a gym session;[79]
[79]T42, Lines 17-31
(xvi) he agreed that in September 2017, when he saw pain specialist, Dr Megan Eddy, he told her that his pain was “improved by walking”, that he was then “walking 45 minutes a day”[80] though “not all at once”[81] and that in general, “movement improves things”.[82]
[80]T43-44
[81]T45, Lines 18-19
[82]T43-44
(xvii) he agreed that the pain improved when he lost weight;[83]
[83]T45, Lines 13-16
(xviii) he denied that his solicitor had told him that he should not return to work of any kind.[84] He said that an employee at the insurance agency had requested permission to visit Dr Tan, and that the solicitors had said that the plaintiff should not attend such an appointment.[85] When pressed on this issue, he said that he would “very much love to go back to work … You know, not working [has] really … lowered my quality of life”;[86]
[84]T47-48
[85]T47, Lines 21-29
[86]T48, Lines 22-28
(xix) he agreed that he plays computer games when he is at home. He said that he might do this for a couple of hours. He is able to stand up and move around, rather than sitting all the time while he is playing these games, as the system is portable;[87]
[87]T49, Lines 1-18
(xx) he agreed that he is good on the computer and can touch type at a good speed;[88]
[88]T49, Lines 25-28
(xxi) he said that he has not explored obtaining a job in the computer industry: “a computer job is a whole other thing”;[89]
[89]T50, Lines 1-17
(xxii) he agreed that he would be capable of driving for about 30 minutes “with added pain” but that he “would much rather my mum drive me”;[90]
[90]T52, Lines 22-27
(xxiii) he said that he did not know if he had a capacity to perform part-time light office work as “I haven’t tried to”;[91]
[91]T52, Lines 28-30
(xxiv) he said that his sleep is now much better “because of the medication” and that he no longer suffers from leg pain;[92]
[92]T53, Lines 4-10
(xxv) at the moment he never sees his friends because “they’ll be out doing something I can’t do and I’ll just watch them do it”.[93] He does see his cousins and other relatives socially;[94]
(xxvi) his pain is managed better by taking Tramadol on a daily basis.[95]
[93]T53, Lines 20-29
[94]T53, Lines 28-31ff
[95]T55, Lines 1-11
Medical evidence regarding pain and suffering
23 Following the incident, the plaintiff has continued to see his treating general practitioner, Dr Tan, who describes the plaintiff’s present symptoms in the following manner:
“... [The plaintiff] continues to experience on and off pain in the lower back. The severity of the pain varies from time to time. At this stage, he remains totally incapacitated for any type of duties or any suitable duties.
He needs to continue his current physiotherapy, his current medications, and regular review by his Pain Management Specialist.”[96]
[96]Exhibit P1, page 54
24Dr Eddy’s last report dated 6 December 2017 included the following observations:
“…Two weeks after the accident, he felt radiation of the pain down his left leg, mainly into the posterior thigh and calf, with associated pain in the big toe, describing probable L5 nerve distribution.[97]
[97]Exhibit P1, page 46
…
… [in 2017] what he presented with … was a consequence of prolonged time with pain causing significant stiffness in his back.
… On examination his lumbar spine movement remained stiff and restricted … .”[98]
[98]Exhibit P1, page 47
“… In my opinion predominantly manual labour was not going to be viable for him. … .”[99]
[99]Exhibit P1, page 47
25In his report dated 8 February 2018, Mr Sushil Sharma, from GSP rehabilitation Services, recorded that, upon examination, the plaintiff exhibited the following:
“* Painful lower lumbar back and the pain is constant
* Tender to touch particularly lumbar region
* Reduced muscular strength in the lower extremities
* Paraesthesia in both legs (L) > (R)
* Poor sitting tolerance and prolonged sitting caused discomfort and pain
* Difficulty in driving but can drive short distances
* Difficulty in personal day to day activities
* Difficulty in day to day domestic activities eg. vacuuming, mopping and laundry
* Anxious / depression
* Difficulty in sleeping due to pain and discomfort
* Due to the severity of physical and psychological symptoms not coping well.
… .”[100]
[100] Exhibit P1, pages 57-58
26 In his report dated 21 April 2017, Mr Thomas Kossman, orthopaedic surgeon, stated:
“Mr Asfour complained that he has pain in his lumbar spine, which is radiating from time to time in his left leg. He complained that he has numbness in particular in his right big toe but also affecting the other toes on his right foot. He can sleep. He has difficulty putting on socks, shoes and cutting his toenails. He cannot sit or stand for too long and has to change his position all the time.
Mr Asfour will continue to suffer from pain, for which he will require further treatment with pain medication, anti-inflammatories, physiotherapy, hydrotherapy, and possibly acupuncture. He has a risk that he may have to undergo surgery, particularly if he suffers from pain issues, which can no longer be treated conservatively, or from a catastrophic disc prolapse. … .”[101]
[101]Exhibit P1, page 66
27 In his report dated 10 February 2018, Professor Richard Bittar, consultant neurosurgeon, observed:
“[The plaintiff] complains of lower back pain, which is intermittent. He typically experiences two to three episodes of pain per day, with each episode lasting 30 to 60 minutes. His back pain is described as sharp, dull, annoying or aching in character at different times. It is located in the mid and lower lumbar region and is bilateral, but worse on the left hand side.
His back pain has an average severity of 6.5/10 with a maximum severity of 9/10.
His back pain is precipitated and exacerbated by sitting, standing, bending, twisting, lifting, pushing or pulling. He can walk for 45 minutes, sit for 40 minutes and stand for 30 minutes before precipitating back pain, and can lift up to 6 to 7 kg without pain.
His back pain improves with recumbency (sic), frequent postural changes, gentle exercise, heat packs, and medications. He is able to look after himself normally, however, doing so does cause additional pain… . His sleep is occasionally disturbed by pain. His social life is restricted and he does not go out as often as he did previously.”
28 In her report dated 6 March 2018, Dr Robyn Horsley, occupational physician, stated:
“Mr Asfour suffers from ongoing chronic back pain which varies on the visual analogue scale from 1 out of 10, up to 10 out of 10; most of the time, it is 4 out of 10. It is aggravated by prolonged sitting and standing. It is also aggravated by any prolonged task. When driving, going over speed humps exacerbates his back pain. He avoids repetitive bending. He finds that his back can be exacerbated with showering and putting on his shoes.
He experiences very occasional left and right leg posterior thigh discomfort. He experiences some numbness in the right great toe at times. When he does experience thigh discomfort, it can last for a few minutes. … Stair and hill climbing can be an issue if he has to climb up more than ten steps.
His functional tolerances include a driving tolerance of 30 minutes in a manual car. His mother drove him to Brunswick today. He has a sitting tolerance of 30 to 40 minutes. He has a static standing tolerance of 30 to 40 minutes. He has a walking tolerance of 30 to 40 minutes (his walking tolerance reduces to 20 minutes if his back is irritable). He has a dynamic standing tolerance of 30 to 40 minutes. He states that he sleeps well. At times, he can be restless.”[102]
[102]Exhibit P1, page 79
The issues
The Plaintiff’s credit
29No serious attack was made on the plaintiff’s credit during the hearing; however, on a number of occasions, Counsel for the defendant pressed the plaintiff during cross-examination about the accuracy of matters referred to in his evidence and various doctors’ reports.
30For instance:
(a) the plaintiff was closely questioned about why he had gone to see numerous general practitioners. The explanation given by the plaintiff demonstrated that convenience of access was one reason why he changed general practitioners and on one occasion he was required by the defendant to see another general practitioner. While it is true that the plaintiff’s relationship with Dr Hermiz broke down, the plaintiff deposed to the fact that he had overheard Dr Hermiz on the phone to the employer speaking about him in a negative way and laughing.[103] In those circumstances it is hardly surprising that the plaintiff decided not to continue attending this general practitioner.
[103] T36-37; PCB 23, paragraph 19
Furthermore, I note that the one of the defendant’s medico-legal experts, Mr Jones, addressed the issue of the plaintiff’s different treaters, stating: “The reason why he changed treaters was to minimize the amount of travel, which did seem a reasonable decision on his part;”[104]
[104]Exhibit D1, page 37
(b) in addition, it was suggested that the plaintiff had simply decided that he did not want to return to work. The plaintiff explained that he did want to return to work, but only on light duties.[105] By reason of the fact that Dr Hermiz had certified him fit for full duties, the employer would not allocate him light duties. In those circumstances, it is evident that an impasse was reached, and the plaintiff was simply offered no more work by the employer. The plaintiff gave unchallenged evidence that he has been looking for work that does not involve physical labour;[106]
[105]Exhibit P1, page 23, paragraph 17
[106]T15, Lines 5-9; exhibit P1, page 84, paragraph 5; page 87, paragraph 17
(c) the plaintiff was pressed about the fact that at various times he told his treaters that his back was “improving”.[107] Under cross-examination, the plaintiff clarified that this was in the context of him not working and being able to rest his back;[108]
[107]T26, Lines 11-16
[108]T30, Lines 8-15; T42, Lines 10-16
(d) the plaintiff was asked about whether his driving restrictions really were as he stated, given that his present general practitioner is a 45 minutes’ drive away. He explained that he used to drive himself to the doctor “with pain,” but that this got too much and he wanted to stop going.[109] Now either his cousin or his mother drives him, which he can cope with;
[109]T51, Lines 8-23
(e) lastly, the plaintiff was questioned about his frequent attendances at the gym, the suggestion being that he was not as restricted in his gym work as he asserted. The plaintiff explained that on most occasions he was attending the gym only to use the hydrotherapy facilities, rather than the gymnasium. He agreed that he did do gym work on occasions and would use the hydrotherapy afterward.[110]
[110]T42, Lines 17-31
31 Having had the benefit of observing the plaintiff while he was giving evidence to the Court, I formed the view that he was a co-operative witness, who appeared to be doing his best to give accurate responses to the questions asked of him. During cross-examination, he gave his evidence openly and without embellishment.
32 Furthermore, I find that the plaintiff's account of events has remained consistent throughout the period during which he has seen his treating medical practitioners, consulted with the medico-legal assessors and provided evidence to this Court.
33 After consideration of all the evidence and in particular, the evidence of the plaintiff, I consider that he was a credible witness, in the sense of being a truthful person. At no time did I gain the impression that he was attempting to mislead the Court, or exaggerate his symptoms.
Compensable injury
34 The details and occurrence of the incident are not in dispute.
35 Counsel for the defendant described the matter as a “range case,”[111] and submitted that there were essentially three issues: the plaintiff’s precise diagnosis, the nature and extent of the restrictions that the plaintiff complains of, and the consequences of those restrictions. It was submitted that there is a component of “illness behaviour,” in other words, a psychological component, to the plaintiff’s pain and suffering presentation.[112] Thus, there is an issue as to whether the pain and suffering consequences alleged by the plaintiff have a “substantial organic basis”.[113]
[111]T12, Lines 14-16
[112]T11-12; Defendant’s submission, pages 4-6, paragraphs 13 and 14
[113]Meadows v Lichmore [2013] VSCA 201 at paragraphs [21]-[24], per Maxwell ACJ; Fokasv Staff Australia Pty Ltd [2013] VSCA 230; Victorian WorkCover Authorityv Nguyen [2016] VSCA 284
36 It is well established that in serious injury applications where this issue is raised, a two-step process of analysis should be adopted.[114] As mentioned above, the first is to ask whether there is a substantial organic basis for the pain and suffering consequences relied upon. If the answer to that question is in the affirmative and if the pain and suffering consequences satisfy the statutory criterion, then the application will succeed without the need for any “disentangling” of the physical versus the psychological contributions to the pain and suffering.[115]
[114]Meadows (ibid) at paragraph [21]
[115]ibid
Substantial organic basis
37 In addition to the imaging, which clearly showed a lumbar spine disc injury at two levels, worsening between November 2015 and December 2016,[116] each of the plaintiff’s treaters gave opinions that the injury to the plaintiff’s lumbar spine was organic in origin:
[116]Exhibit P1, pages 36-37
(a) on 24 July 2016, Dr Sam Hermiz, general practitioner, reported that the plaintiff’s diagnosis is “mild right posterolateral disc herniation at L5/S1 and mild L4/5 left lateral disc herniation without definite nerve root compression seen”.[117] While Dr Hermiz expressed some scepticism about the origin and extent of the plaintiff’s work-related injury (and I have already made reference to the fact that the plaintiff’s relationship with Dr Hermiz effectively broke down when the plaintiff overheard that general practitioner speaking to his employer in a negative way about him and laughing), nevertheless, he concluded “In my opinion, Mr Asfour suffered from a mild lower back pain as a result… of work related injury”.[118] The work related injury, namely the disc herniation, is clearly organic in nature. I note that Dr Hermiz’ report was provided prior to the December 2016 imaging investigation, which showed a worsening condition;
[117]Exhibit P1, page 38
[118]Exhibit P1, page 40, under “Any other relevant information?”
(b) on 20 June 2016, Mr Karim Saleh, physiotherapist, reported with reference to the results of the 2015 CT scan, that the plaintiff was being treated for an “[invertebral] disc injury”[119] and “persisting nerve root compression”;[120]
[119]Exhibit P1, page 42
[120]Exhibit P1, page 42
(c) on 6 December 2017, Dr Megan Eddy, pain specialist, diagnosed the plaintiff as suffering from “neuropathic pain”[121] and “presumed disc injury”[122] which she thought had “likely” well healed,[123] although it is notable that Dr Eddy had not seen the 2016 MRI, which as noted above, demonstrated a deterioration rather than an improvement in the disc bulge;[124]
[121]Exhibit P1, page 46
[122]Exhibit P1, page 47
[123]Exhibit P1, page 47
[124]Exhibit P1, page 45
(d) by numerous reports, the latest of which is dated 23 May 2018, Dr Tan diagnosed the plaintiff as suffering from “disc bulging of the lumbar spine” which he related to the accident at work as described by the plaintiff;[125]
[125]Exhibit P1, page 53
38The plaintiff’s medico-legal experts were of the same opinion:
(a) in a report dated 21 April 2017, Mr Thomas Kossman noted that the plaintiff was “in a work related accident on 27 (scil 28) October 2015”[126] and that as a result of the work accident, “(h)e suffered immediately severe injury to his lumbar spine”.[127]
[126]Exhibit P1, page 65
[127]Exhibit P1, page 65
Mr Kossman diagnosed the plaintiff as suffering from “Pain[ful] lumbar spine on the background of a shallow broad based posterior disc bulge at the L4/5 level causing mild narrowing of the left exit foramen and an annular fissure at the L5/S1 level and a small paracentral disc protrusion at this level”.[128]
[128]Exhibit P1, page 65 and 66
(b) in a report dated 10 February 2018, Professor Bittar observed that the plaintiff “complains of lower back pain”[129] and explained that “[t]he onset of his symptoms occurred following an injury at work on October 28 2015”.[130]
[129]Exhibit P1, page 69
[130]Exhibit P1, page 69
Professor Bittar diagnosed the plaintiff as most likely suffering from a “L5/S1 invertebral disc injury. The radiological changes seen are consistent with the mechanism of injury and his description of symptoms, as well as his findings on examination.”[131]
[131]Exhibit P1, page 72
Professor Bittar thought that the plaintiff’s employment “has been a dominant contributing factor … to his ongoing pain, disability and requirement for treatment;”[132]
[132]Exhibit P1, page 72
(c) in a report dated 6 March 2018, Dr Robyn Horsley confirmed that “Mr. Asfour sustained a significant injury to his lumbar spine on the 28th October 2015. He presents with ongoing mechanical back pain without any peripheral radicular features clinically. He has MRI evidence of ‘a shallow broad based posterior disc bulge at L4/5 causing mild narrowing of the left exit foramen and an annular fissure at L5/S1 as well as a small paracentral disc protrusion at L5/S1 …’.”[133]
[133]Exhibit P1, page 80
In Dr Horsley’s opinion “The annular fissure is likely to be the ongoing pain generator”.[134]
[134]Exhibit P1, page 80
39 The defendant’s medico-legal experts gave the following opinions:
(a) in his three reports, the most recent of which is dated 22 October 2018, Dr Roy Carey, orthopaedic surgeon, stated that the plaintiff “has ongoing symptoms but in the absence of specific signs ... I assume that the presenting condition is ongoing low back symptoms following substantial resolution of a right L5/S1 disc protrusion, now with ongoing lower back symptoms, no lower limb symptoms, no radiculopathy, but in the presence of non-organic signs of abnormal illness behaviour suggesting a Chronic Pain Syndrome or Disorder.”[135] I note that despite expressing scepticism in relation to the organic nature of the plaintiff’s complaints, Mr Carey candidly noted that his opinion should be qualified by reason of the fact that he had never seen any of the imaging of the plaintiff’s back;
[135]Exhibit D1, page 32-33
(b) in a report dated 23 January 2016, Dr Clive Jones, orthopaedic surgeon, considered that the plaintiff had “a lumbar disc prolapse causing back pain and sciatica. There was an admission of mild back discomfort even prior to the event, but no interference with work capacity”.[136] Dr Jones said that on clinical examination, the plaintiff “still had signs of nerve root tension and back restriction. The condition is resolving, but has not done so fully …”.[137] I note that Dr Jones’ report was provided prior to the MRI which was conducted in December 2016 and which showed that the plaintiff’s disc bulge was in fact worsening;[138]
[136]Exhibit D1, page 38
[137]Exhibit D1, page 15
[138]Exhibit P1, page 37
(c) lastly, in a report dated 2 March 2018, Dr Angus Forbes, an occupational and environmental physician, diagnosed the plaintiff as having “lumbar spondylosis”.[139] He said that it was “likely that his fall was a contributor to an exacerbation of his lumbar spondylosis,”[140] but that this “exacerbation should have ceased within a short period of time, likely less than six months”.[141] In Dr Forbes’ opinion, the plaintiff’s “ongoing symptoms do not have an identifiable cause” and that the plaintiff was exhibiting “ongoing abnormal pain behaviour”.[142] I note that Dr Forbes was not supplied with any of the relevant imaging or imaging reports.
[139]Exhibit D1, page 47
[140]Exhibit D1, page 48
[141]Exhibit D1, page 48
[142]Exhibit D1, page 48
40 Each of the plaintiff’s treaters, the plaintiff’s medico-legal experts and Mr Jones all found a substantial organic basis for the consequences of the plaintiff’s injury to his lumbar spine.
41 To the extent that the defendant’s experts expressed an opinion in relation to this matter, it is clear that neither Mr Carey nor Dr Forbes were in possession of all of the relevant imaging and other medical reports necessary to provide a definitive opinion. Mr Carey quite candidly conceded that in the absence of the relevant imaging it was “rather more difficult to be definitive in my opinion …”.[143]Dr Forbes’ view that the plaintiff suffers from lumbar spondylosis but that his “… ongoing symptoms do not have an identifiable cause”[144] must be given little weight in light of the fact that he was not provided with evidence of a worsening back on MRI.[145] Neither Mr Carey nor Dr Forbes had the benefit of consistency of the observations and opinions provided by the plaintiff’s medico-legal experts, namely Mr Kossman, Professor Bittar and Dr Horsley.[146] Each of these experts considered that the plaintiff’s ongoing physical symptoms were related to particular and identifiable features of the pathology which was evident in the imaging. Their opinions were consistent with one another. They were not required by the defendant to attend for cross-examination.
[143]Exhibit D1, page 32
[144]Exhibit D1, page 48
[145]Exhibit P1, page 37
[146]Exhibit D1, pages 29-30: list of documentation provided in the brief to Mr Carey
42 On the basis of the opinions set out above, the weight of the evidence satisfies me that the consequences of the plaintiff’s injury to his lumbar spine have a substantial organic basis. Despite the defendant’s submission to the contrary, it is well established that I am not required to settle on a precise diagnosis which is responsible for the consequences complained of, only to satisfy myself that there is an impairment of an identified body function which has a substantial organic basis.[147] As set out above, the evidence in this case is sufficient to allow me to reach that conclusion.
[147]See s325(1) of the Act, definition (a) of the term “serious injury”; note also the words of the Court of Appeal in Barwon Spinners & Ors v Podolak (supra) at paragraph [9], where the Court agreed with the submission of Counsel for the appellants, that what is required is a “physiological change to the body part” which is “productive of an impairment to a body function”
Is the compensable injury permanent for the purposes of the Act?
43 Having considered the relevant evidence from Mr Kossman,[148] Professor Bittar[149] and Dr Horsley,[150] I find that the plaintiff is likely to continue to suffer from symptoms in his lumbar spine for the foreseeable future. Thus, I find that the injuries sustained by the plaintiff in the incident are permanent for the purposes of the Act.
[148]Exhibit P1, page 67
[149]Exhibit P1, page 73
[150]Exhibit P1, pages 80-82
Is there a need to disentangle consequences suffered by the Plaintiff which are psychological in nature, from the physical consequences of her injuries?
44 As set out above, Counsel for the defendant submitted that in this case, there was a need to disentangle the plaintiff’s physical consequences from the psychological consequences suffered by him.
45 The plaintiff bears the burden of proof in any disentangling exercise which needs to be undertaken.
46 I have accepted that there is a substantial organic basis for the physical consequences of the injury to the plaintiff’s low back.
47 Applying the principles set out above, no further disentangling needs to be undertaken. The only matter left to decide is whether the physical consequences of that injury produce a sufficient degree of impairment to satisfy the relevant test under the Act.
Conclusions as to pain and suffering
Pain
48 I find that even when he is not working or engaging in activities which aggravate his injury, the plaintiff suffers from constant, daily pain in his lower back. The activities which aggravate his lower back include any prolonged sitting, standing or walking. I find that he is unable to engage in any repetitive bending, twisting or heavy lifting without significant pain.
49 I find that the plaintiff suffers severe lower back pain at least two or three times per week. When this occurs, he needs to rest and take extra medication.
Effect on sleep
50I accept the plaintiff’s evidence that originally his sleep was intermittently disturbed at night by his back pain and that occasionally he woke up very early in the morning at about 4.00am, because of the pain. I find that the plaintiff’s sleep has improved recently due to the medication which he is taking.
Effect on social life and activities of daily living
51 I find that the plaintiff is restricted in relation to performing household chores. In particular, he does not carry any heavy shopping bags, he does not mow the lawns, and cannot carry heavy baskets of washing. He avoids bending down to wash floors and avoids taking out heavy garbage bins. He does not try to manoeuvre or lift heavy furniture.
52 I accept that the plaintiff is no longer able to enjoy doing a heavy and strenuous physical workout because of his back injury. I find that he used to be a very fit and active person, but has lost a significant degree of fitness because of the problems he has with his back. I find that he has stopped playing social games of basketball, soccer, cricket and tennis with friends and that the loss of this social interaction is significant for the plaintiff.
53 I find that the plaintiff avoids going out socially because of his difficulty with prolonged standing. I find that the plaintiff has difficulty with driving for long periods because of his lower back injury, in particular his difficulty with prolonged sitting. I accept that if he has to drive for more than about half an hour then this will cause a sharp increase in his low back pain.
Work restrictions
54 I find that the plaintiff’s employment options are extremely limited as a result of the incident. I find that the plaintiff is currently looking for work, that he has applied for a number of jobs and that he looks for work within his restrictions. I accept that he has been unsuccessful in obtaining any of the jobs for which he has applied as he has to tell prospective employers that he has a back injury and that he cannot do any heavy lifting.
55 I find, as is agreed by the plaintiff’s medico-legal experts,[151] that the plaintiff is restricted in relation to employment or activities involving:
[151]Exhibit P1, pages 66-67 (Mr Kossman), page 73 (Professor Bittar) and page 81 (Dr Horsley)
(a) bending, lifting, twisting or stooping;
(b) repetitive pushing or pulling or lifting;
(c) lifting items weighing more than 10 to 12 kilograms (except on an occasional basis), and items weighing 8 to 10 kilograms on a repetitive basis
(d) repetitive and/or prolonged use of the back;
(e) overhead activities;
(f) kneeling, squatting or crouching;
(g) prolonged sitting, walking or standing;
(h) walking up inclines or down declines;
(i) using steps or ladders;
(j) fine and manipulative use of the back.
56 I find that the restrictions referred to above have come about by reason of the injuries suffered by the plaintiff during the incident. I find that these work restrictions are a significant consequence for the plaintiff and constitute compelling evidence of the extent of the pain that the plaintiff is in.[152]
[152]Peak Engineering Pty Ltd & Anor v McKenzie [2014] VSCA 67 at paragraph [45] per Maxwell P
57 I accept the evidence of Dr Horsley, and find that while the plaintiff has a capacity for some work, he is unable to return to work performing his pre-injury duties as the job demands lie outside his capacity limits.[153] I accept Dr Horsley’s opinion that the plaintiff is only fit to perform a “less manual role” and if he can return to the workforce, it will need to be in a graduated fashion, commencing at about 15 to 20 hours a week and gradually increasing, depending upon his physical capacity.[154]
[153]Exhibit P1, page 81
[154]Exhibit P1, page 81
58 As to the plaintiff’s future prognosis, I accept the evidence from Mr Kossman and find that there is a risk that the plaintiff may have to undergo surgery, particularly if he suffers from pain issues which can no longer be treated conservatively, or if he experiences a catastrophic disc prolapse in the future.[155]
[155]Exhibit P1, page 65
59 I find that the consequence to the plaintiff of the risk of future surgery[156] along with the permanent nature of the other pain and suffering consequences referred to above, including his reduced capacity for employment and the loss of enjoyment of life attendant thereupon, are particularly significant to this plaintiff by reason of his young age. That is because the plaintiff will continue to suffer from those consequences for many years to come.[157]
[156]Davidson vTransport Accident Commission [2015] VSCA 12 at paragraph [49]
[157]Stijepic v One Force Group Aust Pty Ltd & Anor (supra) per Beach AJA at paragraph [43]
Medication and treatment
60 I accept the plaintiff’s evidence about his daily medication regime, as referred to above in paragraph 22(c).
61 I find that following the incident, the plaintiff managed his pain by engaging in hydrotherapy at a gym and losing 30 kilograms of weight. I find that at present, his pain is somewhat (though not entirely) relieved by taking a daily dose of Tramadol.
62 I find that the plaintiff’s condition has stabilised and there is no available treatment to improve the situation.
Do the consequences satisfy the test for a “serious injury” under the Act?
63 In Haden Engineering Pty Ltd v McKinnon,[158] the Court of Appeal made observations about the task of evaluating the pain and suffering consequences of an injury. In particular, Maxwell P observed that the consequences of pain and suffering encompass both the plaintiff’s experience of pain, as well as the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life.[159] Part of the process is for the Court to assess the intensity of pain which the plaintiff experiences, together with the frequency and duration of pain episodes. Ultimately, the question of whether an injury satisfies the relevant test under the Act is one of impression or value judgment.
[158](2010) 31 VR 1
[159]Haden (ibid) at paragraph [9]
64 The weight to be attached to the plaintiff’s account of the pain experience will depend upon an assessment of the plaintiff’s credibility.[160]
[160]Haden (ibid) at paragraph [12]
65 I have already made observations about the plaintiff's demeanour and presentation in Court, and in particular, I have found that the plaintiff was a truthful witness.
66 An analysis of the evidence clearly demonstrates that many aspects of the plaintiff’s life have been adversely affected by the consequences of the injuries that he suffered during the incident. The plaintiff endures permanent, daily pain, requiring daily medication, which, of itself, has been held to raise a real prospect of a “very considerable” consequence.[161] Further, this pain has caused significant restriction in his ability to work and has impacted on his ability to socialise and perform the usual activities of daily living.
[161]Kelso v Tatiara Meat Co Pty Ltd (supra) at paragraph [199] per Dodds-Streeton JA
67 Taking into account all of the evidence, I am satisfied that the consequences of the plaintiff’s injury to his lumbar spine are “serious”, and satisfy the relevant test as set out in the Act.
Conclusion
68 Accordingly, pursuant to s335 of the Act, I grant leave to the plaintiff to bring common law proceedings in respect of the injury to his lumbar spine, suffered on or about 28 October 2015.
69 I will hear the parties on the issue of costs.
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