Babar v Coles Group Limited
[2023] VCC 1736
•28 September 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-21-05502
| UMER BABAR | Plaintiff |
| v | |
| COLES GROUP LIMITED | Defendant |
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| JUDGE: | HER HONOUR JUDGE TSIKARIS |
| WHEREHELD: | Melbourne |
| DATEOF HEARING: | 18 August 2022 |
| DATEOFJUDGMENT: | 28 September 2023 |
| CASEMAYBECITEDAS: | Babar v Coles Group Limited |
| MEDIUMNEUTRALCITATION: | [2023] VCC 1736 |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury application – injury to the lower back – pain and suffering – range – causation – credibility
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s335(2)(d)
Cases Cited:Ansett Australia Ltd v Taylor [2006] VSCA 171; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Watts v Rake (1960) 108 CLR 158; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292; Ifka v Shahin Enterprises Pty Ltd [2014] VSCA 8; Halpin v Wilson Transformer Company Pty Ltd [2012] VSCA 235; Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267; Davies v Nilsen [2014] VSCA 278; Stijepic v One Force Group Aust Pty Ltd & WorkCover Authority [2009] VSCA 181; Grech v Orica Australia Pty Ltd (2006) 14 VR 602
Judgment: Application granted
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| APPEARANCES: | Counsel | Solicitors |
Fortheplaintiff | Mr P Haddad | Shine Lawyers |
Forthedefendant | Mr M Clarke | Lander & Rogers |
COUNTY COURT OF VICTORIA
250 William Street, Melbourne
HER HONOUR:
Introduction
1This is an application for leave to bring common law proceedings pursuant to s 335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for injuries suffered by the plaintiff at work on or about 26 March 2018 and/or due to the work processes during the course of his employment.
2He seeks leave to commence proceedings for pain and suffering damages.
3The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s 325(1) of the Act. There “serious injury” is defined relatively as meaning:
“(a) permanent serious impairment or loss of a body function.”
4The body function relied in this case is the lower back.
5The relevant legal principles are well-known and are not in dispute.
6The impairment of the body function must be permanent.
7The plaintiff bears an overall burden of proof upon the balance of probabilities.
8By s325(1)(c) of the Act, the plaintiff’s lower back impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant or marked”.
9The plaintiff relied on two affidavits sworn on 19 August 2021 and 2 August 2022. The plaintiff’s brother Khizar Babar swore an affidavit on 28 July 2022. The defendant relied on the affidavit of Tess Shelford, who is the plaintiff’s shift manager, sworn on 15 August 2022. In addition both parties relied on medical reports and other material which was tendered in evidence.
10The plaintiff’s credit was attacked by the defendant, especially in relation to the contents of both of his sworn affidavits.
11I have read all the tendered material and I will refer to the relevant evidence to the extent necessary in these reasons.
The issues
12The issues for determination are:
(a)whether the plaintiff sustained an injury at work and whether the plaintiff continues to suffer from a compensable condition; and
(b)whether the plaintiff’s pain and suffering consequences meet the “very considerable” threshold required by the legislation.
Background
13The plaintiff was born on 29 January 1990 in Lahore, Pakistan, and is currently 33 years of age.1 He completed high school in Pakistan and went to an intermediate school for two years after finishing high school.
14The plaintiff came to Australia in 2009.2 He did a year of a Diploma of Engineering at Kangan Batman Institute in Broadmeadows. He then completed a Diploma in Information Technology at ATMC College and did six months of an advanced Diploma in Information Technology. He then enrolled in a Bachelor of IT, only completing two semesters.
15Whilst studying, the plaintiff picked up part-time work at Nando’s, McDonald’s for six months, and 7-Eleven.3
Plaintiff’s Affidavit sworn 18 August 2021, Plaintiff’s Court Book (“PCB”) 1
PCB 1
PCB 2
16The plaintiff started working at the Coles Distribution Centre in Truganina as a picker/packer in about August 2012.4 He was working night shift at a casual rate whilst still studying.
17The plaintiff started working full-time for the defendant and he gave up his studies as he found it too hard to balance work and study.5
18The plaintiff reduced his hours of work to part time, three days a week, as it was his intention to return to study. He did not in fact return to study, and eventually increased his hours to work four days a week, on nightshift.6
19The plaintiff married in 2013, and he and his wife had a son in 2016.
20The plaintiff describes himself as an active person who enjoyed playing cricket, billiards, table tennis and badminton.7
The plaintiff’s evidence
21The plaintiff’s job was to go around the warehouse and take stock from pallets. He would put the stock into a pallet which he would move around using an electric “tugger”.8 The stock varied in weight, the lightest about 2 kilograms and the heaviest up to about 25 kilograms.
22The plaintiff described the job as constant, repetitive and quite physical, and often heavy.9 The plaintiff claims that the job made him fitter. He often felt tired and even a bit sore after work, especially after doing heavy days and working for consecutive days.
23The plaintiff also loaded and unloaded trucks and operated forklifts, both of which he found easier than picking work.10 The plaintiff complained that when the new
Ibid
Ibid
Ibid
Ibid
Ibid
Ibid
Ibid
team manager started, he was just getting picking duties for several days in a row instead of a fair rotation of duties.
24On about 26 March 2018, the plaintiff was taking boxes of yoghurt from a storage pallet and putting them on his pallet. As he was walking with a box in his hands, he felt a sudden pain in his lower back and right leg.11 He deposed that he dropped to his knees from pain and that he had never experienced pain like that before.
25Another worker came to him and tried to help him get up, but he could not get back on his feet.12 They brought him a wheelchair and took him to the first aid room. An ambulance was called and he was taken to the Werribee Mercy Hospital.13 He was given painkillers and examined, and then sent home. He was referred to a doctor in Deer Park by the defendant. He returned to work on light duties a few days after the incident.
26The plaintiff submitted a WorkCover claim for compensation dated 13 April 2018.14 The claim was accepted and he was paid weekly payments of compensation for time off work and for medical services received for the injury.15
27The Distribution Centre is described by the plaintiff as a “massive cold storage facility”.16 The chiller is set at 3 degrees Celsius constantly. Employees are provided with a jacket, thermal long-sleeved t-shirt, beanie and gloves. Employees wore steel cap safety boots and a headset directed by a computerised voice.
28The plaintiff first saw his doctor at Wyndham Village on 23 April 2018. He had a CT scan on 9 May 2018.17
PCB 4
Ibid
Ibid
PCB 26-27
PCB 4
PCB 3
PCB 5
29The plaintiff was then referred to a specialist orthopaedic surgeon, Mr Gerald Quan, and first saw him on 31 July 2018.18 He was sent for an MRI scan and SPECT scan on 9 August 2018. Mr Quan reviewed him on 22 August 2018, advising that he did not need surgery but suggested an epidural injection. He did not go ahead with the epidural injection.
30The plaintiff continued working in light duties and restricted hours, aiming to build up his working hours and duties. Sometimes his lower back pain would flare up and he would have to take time off work.19 At this time, he was receiving physiotherapy and hydrotherapy.
31By about March 2019, the plaintiff was back to normal duties for 30 hours a week although there was a proper rotation of duties, and he was not just undertaking picking work.20
32In about February 2020, the plaintiff went to Pakistan. He returned to work in July 2020 after being stuck in Pakistan because of COVID. While in Pakistan he was able to get his prescription Inza medication over-the-counter.21
33The plaintiff submitted a claim for impairment benefits following which he was examined by the Medical Panel on 25 November 2020. It provided an opinion on 11 December 2020 he was assessed as having a permanent impairment.22
34The plaintiff claims he has back pain all the time and the only thing that changes is the intensity.23 He claims he gets spasms in his lower back, and he can only sit for about 90 minutes and stand for only 30 minutes. He claims that he gets flare- ups of strong pain about every week, and that they can last for a day or two before it settles down.
Ibid
Ibid
Ibid
Ibid
Ibid
Ibid
35The plaintiff takes Panadol, Nurofen and Inza 500mg when required. However, he takes them almost on a daily basis “as far as he can remember”.24
36The pain in his back makes it difficult for him to sleep.25
37The plaintiff and his wife separated sometime in April 2021. He attirbutes his back injury as a contributing factor to their separation.26 His wife has the care and custody of their son.
38The plaintiff deposed in his second affidavit that he works 38 hours a week and that over 50 per cent of his work includes office duties.27
39After a day’s work he feels extra pain in his lower back and although he can cope with the pain, what triggers his back pain remains unpredictable.28
40Prior to his injury, the plaintiff was playing with the Williams Landing Cricket Club and played as an allrounder, enjoying both batting and bowling.29 He also enjoyed the social aspect of cricket.
41The plaintiff tried to play club cricket in the 2021-2022 summer cricket season, playing approximately one game every fortnight. However, he could not bowl properly, was restricted in his batting technique and his performance was materially different prior to the injury.30 Whilst batting, his back pain flared up, but he tried to push through the pain as he did not get out much and wanted to push through for his mental health.
42He had not returned to playing badminton as it is an intense sport, unlike cricket which is slower in pace.31
T8, LL10-31
PCB 6
PCB 7
Further Affidavit of Umer Babar sworn on 2 August 2022, PCB 21
PCB 22
Ibid
Ibid
Ibid
43The plaintiff reported that 90 per cent of days, particularly working days, he took his Inza 500mg medication.32
44The plaintiff addressed the affidavit of Tess Shelford, wherein she deposed that she had not observed the plaintiff display any restrictions.33 The plaintiff deposed that he took painkillers to manage his pain and has them with him at all times. He did not complain of his back pain or feeling tired because it is an everyday occurrence. He also found that being off work was bad for his mental health and he just wanted to keep working.
45He admitted to playing ping pong at work. He enjoyed it because it is not an athletic sport and it gives him something to do on his breaks.34 He also attended events organised by his co-workers, such as go-karting, but said that he managed despite his back being sore but did not continue to go out after the go-karting with his co- workers because he was in pain.35
46In cross-examination, the plaintiff states that he had chiropractor sessions for his back this year, but no physiotherapy sessions.36
Affidavit of Khizar Babar
47Mr Khizar Babar is the plaintiff’s brother and the plaintiff currently lives with his brother and his fiancée.37
48Before he got engaged, Khizar lived with the plaintiff, his wife and son prior to their marriage ending.
49The plaintiff’s brother deposed that he has noticed a big change in the plaintiff’s mood and personality, that he has become depressed and more stressed out
PCB 23
PCB 24
PCB 25
Ibid
Transcript (“T”) 5, Lines (“L”) 5-10
Affidavit of Khizar Babar affirmed on 28 July 2022
because of the injury’s impact on what he can do physically and on his finances, work and marriage.38
50He was outgoing and social, and the plaintiff does not go out “socially anymore in the way that he used to”.39
51The plaintiff’s brother confirms that the plaintiff used to play cricket and badminton often but does not anymore.40 The plaintiff also cannot play with his child like he wants, having difficulty running around and lifting his son up to play on the monkey bars and play equipment.
52The plaintiff’s brother also states that the plaintiff does not do chores around the house anymore which used to be shared responsibility between the brothers.41
Treating medical practitioners
The plaintiff’s medico-legal reports
Dr Gerald Quan, spinal and orthopaedic surgeon
53Dr Quan reviewed the plaintiff on 31 July 2018, referred by Dr Fatima Zahora. He took a history that the plaintiff was suffering low back pain and right leg pain which was not triggered by one specific event. However, the plaintiff was stacking and lifting boxes when he started suffering severe right-sided low back pain and immediate referred leg pain to the back of his thigh and knee.42
54Dr Quan confirmed that the plaintiff was unable to work for the first few weeks because of the intensity of the pain, and then eventually returned for two hours per day on light duties which he could barely tolerate.43
55The plaintiff has been dedicating himself to weekly supervised physiotherapy and hydrotherapy, and takes Lyrica neurotic and anti-inflammatory medication daily for
PCB 18
Ibid
Ibid
Ibid
PCB 28
Ibid
pain relief. The plaintiff reported getting quite angry and depressed that his ongoing pain and early improvement in symptoms had plateaued. Despite his symptoms significantly improving, the pain was still present enough to depress him and affect him on a daily basis.44
56The CT scan of the plaintiff’s lumbar spine confirmed bilateral L5 pars interarticularis defects, reported as fractures. Dr Quan advises that these L5 pars defects are reported as being undisplaced and contributing to a subtle Grade 1 lytic L5-S1 spondylolisthesis.45
57Dr Quan diagnosed the plaintiff with early Grade 1 lytic L5-S1 spondylolisthesis and recommended continued physiotherapy and hydrotherapy. He also recommended activity modification of occupational and recreational activities involving a lot of repetitive flexion/extension, twisting and lifting activities.
58Dr Quan also suggested an epidural cortisone injection if his pain did not settle over time.46
59Dr Quan reviewed the plaintiff again on 22 August 2018 following a bone scan, with SPECT CT showing the pars defects at L5 as cold and he opined that the plaintiff’s L5-S1 lytic spondylolisthesis is definitely longstanding and not due to acute trauma.47
60The plaintiff’s MRI result confirmed his diagnosis, showing that the L5-S1 disc is quite degenerate in association with the spondylolisthesis, and similarly his L5 vertebral body is hypoplastic.48
61Dr Quan stated that a combination of the early spinal slippage, degenerate broad based L5-S1 disc protrusion and some early facet arthropathy is causing a degree
Ibid
Ibid
Ibid
PCB 30
Ibid
of existing neuroforaminal narrowing with potential irritation of the exiting L5 nerve roots here, the right worse than the left.49
62Dr Quan noted that the plaintiff has the beginnings of significant degenerative disc disease at L4-5 also. This, in combination with the spondylolisthesis can cause issues with ongoing low back pain and referred leg L5 pain.50
63Dr Quan recommended physiotherapy to strengthen his core and back paraspinal and an epidural cortisone injection if the condition worsened.
Dr Huma Ajmal, general practitioner
64Dr Huma Ajmal saw the plaintiff on 31 October 2019 and she noted that the plaintiff was originally seen by Dr Fatima Zahora on 23 April 2018 for work-related injuries.
65The plaintiff was originally diagnosed with a sprain but noted that the treating spinal surgeon diagnosis was of early Grade 1 lytic L5-S1 spondylolisthesis.51
66The plaintiff was prescribed Celebrex and Naproxen, as well as undertaking physiotherapy.52
67Dr Ajmal noted that there was no past history of back related issues and the current back pain symptoms were not caused by a direct injury but by repeated lifting and bending.53
68Dr Ajmal reported that the plaintiff is under physiotherapist care and was able to gradually increased his working hours and has reduced restrictions to work.54 He was not completely fit to undertake pre-injury duties though.
Ibid
Ibid
PCB 31
Ibid
Ibid
Ibid
69Dr Ajmal reported that if the plaintiff was not in pain he iwass able to participate in domestic, recreational, social and personal activity. However, if he is in pain, he is not able to.
70Dr Ajmal in her report dated 13 April 2022 she noted that the plaintiff had returned to his pre-injury duties on 7 November 2019 however he had advised that his current duties are not exactly the same as his pre-injury duties. The plaintiff had back pain on and off, and managed it with analgesia55.
71Dr Ajmal suggested that the plaintiff has the capacity to perform pre-injury duties for 38 to 40 hours per week. She also states that he is able to do most tasks including lifting, bending, driving, walking and playing table tennis.56
72Dr Ajmal advises that if the plaintiff continues complaining about his back pain in the future, he needs to be assessed by a pain specialist and/or a neurosurgeon.
Dr Garry Grossbard, orthopaedic surgeon
73Dr Grossbard examined the plaintiff on 11 May 2022. He took a general and personal history from the plaintiff as well as a history of the incident of 26 March 2018 and the injuries and subsequent events that followed.
74Dr Grossbard noted that in mid-2018, the plaintiff commenced hydrotherapy with some improvement. The plaintiff’s leg pain resolved after several months of therapy and he continued to manage his back pain using gym-based exercises.57
75The plaintiff told Mr Grossbard that he had reskilled so that he could perform office work.58 By early 2019, the plaintiff was back at work performing full hours undertaking full duties.59 His current duties however were about 50 per cent office based and there is very little heavy work.
Ibid
Ibid
PCB 34
Ibid
Ibid
76Dr Grossbard reported that the plaintiff uses Inza 500mg each day and exercises daily. He has occasional intermittent episodes of physiotherapy and will use a heat pack on his back two to three times a week.60
77The plaintiff described the back pain as a constant dull ache, which varied in level of severity.61 The pain was worse with activity and better when he rested. The plaintiff advised that the back pain does affect his sexual activity.
78The plaintiff told Dr Grossbard that he was involved in playing badminton, table tennis and social cricket. He has now resumed playing table tennis and badminton on a social basis at work.62
79On examination, Dr Grossbard reported that the plaintiff had bilateral lumbosacral tenderness, poor flexion of the lumbar spine and increased pain with attempted extension.63 His interpretation of the MRI scan of the lumbosacral spine undertaken on 9 August 2018 confirmed the presence of bilateral pars interarticularis defects with Grade 1 spondylolisthesis of L5 on S1. There is shallow disc bulging with evidence of L5 nerve root compression at the intervertebral foramen.64
80Dr Grossbard noted that a nuclear bone scan conducted on 9 August 2018 showed little increased activity in the region of the pars interarticularis defect.65
81Dr Grossbard expressed his opinion that due to the incident occurring on 26 March 2018, the plaintiff had developed the sudden onset of low back pain.66 The pain is most likely related to an aggravation of pre-existing pathology in the lumbosacral region in the form of bilateral pars interarticularis defects of the L5 vertebra.67 The plaintiff continues to have back pain which he managed using an exercise program
Ibid
PCB 35
Ibid
Ibid
Ibid
Ibid
PCB 36
Ibid
and intermittent analgesia. The plaintiff had managed to adjust his work requirements and cope with ongoing employment.
82Dr Grossbard said that the plaintiff’s ability to return to his pre-injury duties would be markedly restricted by the development of back pain particularly after heavier activity of bending and lifting. He recommends that the plaintiff should remain in his alternate duties, as the plaintiff’s situation is unlikely to change significantly in the foreseeable future.68
83Dr Grossbard believes ongoing treatment should remain conservative and should include an ongoing exercise program, surgical intervention is inappropriate in the present.69
Medical Panel Opinion
84The Medical Panel diagnosed the plaintiff as suffering from chronic primary low back pain, with right lower extremity symptoms but without clinical evidence of radiculopathy, following aggravation of pre-existing asymptomatic spondylolysis of L5-S1.70 The Panel concluded that the plaintiff’s current physical condition is stable and permanent.
85The Panel’s impairment assessment is that the accepted back injury is to the lumbosacral region and that the “pars fracture” or defect, affects only one vertebral level and it most likely apparent due to longstanding spondylosis of the fifth lumbar vertebral lamina.71
The defendant’s evidence Affidavit of Tess Shelford
86Ms Shelford, Shift Manager with Coles Group Supply Chain Pty Ltd at Coles
Distribution Centre first met the plaintiff in or around October 2018. She was aware
Ibid
Ibid
PSCB 15
PSCB 16
that the plaintiff allegedly had sustained injury to his back whilst undertaking picking duties on 26 March 2018, and that he has been certified fit for his pre-injury duties since 7 November 2019.72
87Ms Shelford confirmed that the plaintiff undertakes picking duties, loading, unloading and forklift operation duties, continues to work night shift and has varied duties between roles over his shifts.73
88Ms Shelford observed the plaintiff undertaking his duties without any restrictions. 74
The plaintiff had not ever made a complaint to her or requested special assistanc e.
89Ms Shelford deposed that the plaintiff plays table tennis regularly during his shift breaks.75 She deposed that team members on occasion organise their own social events to attend outside of working hours. On 18 April 2022, team members went go-karting at Ace Karts, and the plaintiff attended and participated in go-karting.76 Ms Shelford observes that in both activities the plaintiff did not display any restrictions or pain when participating in these activities.
The defendant’s medico-legal reports
Dr Nicholas Burke, consultant occupational physician
90Dr Burke assessed the plaintiff on 24 July 2019 and provided a report dated 31 July 2019. He detailed the plaintiff’s working and personal history and the incident that caused the injury.
91Dr Burke noted that the plaintiff’s current restrictions on the date of assessment were:77
·lifting a maximum of 8 kilograms;
Ibid
DCB 5
Ibid
Ibid
Ibid
DCB 9
·able to load and unload using a machine;
·rest breaks of 15 minutes every hour;
·picking three hours a day, 10-minute break every hour of picking;
·office job if in pain.
92The plaintiff indicated that there was some on-going low-grade discomfort in the lower back, that this was intermittent and not a constant feature, and that this pain was more pronounced after a four-day period of work.78
93Dr Burke reports that the plaintiff could not indicate any specific factors that provoked his symptoms.79
94Dr Burke reported the plaintiff’s wife is a childcare worker and takes their daughter to the same day-care facility where she works. The plaintiff was therefore home most of the time by himself. On a weekend, the plaintiff would spend up to four or five hours on the internet during the day. He used to be a gamer but is not anymore.80
95Dr Burke reported that the plaintiff can cook and clean, and he paid someone to do gardening and lawn mowing.81
96Dr Burke reported the plaintiff had indicated that prior to the aggravating incident he may have had some low-grade discomfort in the lower back, particularly at the end of a long shift.82 The plaintiff would have massages on approximately a monthly basis. However, he never had any formal treatment such as physiotherapy or chiropractic treatment for his back problems.
DCB 10
Ibid
Ibid
Ibid
Ibid
97Dr Burke’s diagnosis was of a probable back strain with exacerbation of pre- existing bilateral pars defects.83
98As it had been 16 months since the original incident, he believed it was probable that any low back strain or exacerbation likely had resolved and that any ongoing symptoms would relate to the underlying pre-existing pars defects and spondylolisthesis.84
99Dr Burke suggested that the most important treatment intervention would be continuation of the gym-based program which would help the plaintiff return to his pre-injury duties.85
100Dr Burke advised that he believed the plaintiff could return to his pre-injury duties presently. However, he recommended the plaintiff transition to his pre-injury duties over the course of the next two-months.86
Dr Ian Dickinson, orthopaedic surgeon
101Dr Dickinson saw the plaintiff on 19 July 2022, and provided a report dated 22 July 2022.
102Dr Dickinson reported that the plaintiff’s current situation is one of continued lower back pain, the pain worse with activity and improved with resting.87 The plaintiff continued taking Inza, 500 milligrams, a tablet, daily and sometimes took Nurofen, two tablets daily.
103Upon examination, Dr Dickinson reported that the plaintiff can walk on tiptoes and heels but cannot squat comfortably as it produces low back pain.88
104
On review of the MRI scan on 9 August 2018, Dr Dickinson noted that the scan shows bilateral pars interarticularis defects with grade 1 spondylolisthesis of L5
DCB 11
DCB 12
Ibid
DCB 13
DCB 24
Ibid
and S1. He noted that there is degenerative change at L4-5, there is a shallow disc bulge into the right L5-S1 foramen. It does not have any material effect on the L5 nerve roots.89
105Dr Dickinson’s opinion is that despite evidence of a premorbid congenital and developmental spondylolisthesis at L5-S1, it does not have any material effect on the function of the plaintiff’s back.90 he concluded that there is no residual effect from the incident of 26 March 2018.
106Dr Dickinson advised that the plaintiff would not require any future treatment as a result of his work-related injury.91
Plaintiff’s submissions
107Counsel for the plaintiff submitted that the plaintiff was a genuine witness who displayed appropriate pain in the witness box and at times demonstrated a difficulty grappling with the nuances of the English language, exemplified in his difficulty to articulate and fully express himself at times .92
108The plaintiff was not dishonest. The plaintiff is not an invalid. He was able to perform and undertake activities since his injury and his ability to engage in sporting and social activities has been admitted fulsomely.93 The plaintiff made regular concessions in cross-examination and did his best to answer genuinely given his language barrier.
109In relation to causation, the plaintiff relied on the report of Mr Grossbard and the Medical Panel Opinion, which usurped the report of Dr Burke, given they were later in time and included an acceptance of liability for the plaintiff’s impairment benefits claim.94
DCB 25
DCB 26
Ibid
T62, L18-26
T63, L1-9
T64, L9-16
110He relied on Ansett Australia Ltd v Taylor as a significant admission on the part of the employer.95
111The plaintiff had no prior history of back pain and the Medical Panel accepted that the plaintiff was generally of good health and had not experienced any lower back pain symptoms.96 Counsel for the plaintiff drew a distinction in Dr Burke’s report in which he noted that the plaintiff had back “discomfort” as this was not pain.
112The plaintiff’s counsel disputed the defendant’s reliance on Mr Dickinson’s report as it substantially differed from the Medical Panel Opinion’s analysis of the plaintiff condition. He criticised Mr Dickinson’s report further as there was no proper consideration of how the injury arose and his report does not flow or flesh out the reasoning for his findings97
113To the contrary, Mr Grossbard’s report sets out that the plaintiff was in good health prior to the injury with a denial of low back pain beyond discomfort and he considered this in coming to his diagnosis of an aggravation of pre existing pathology.98 Mr Grossbard’s diagnosed “[an] aggravation of pre-existing pathology in the lumbosacral region in the form of bilateral pars, interarticularis defect of the L5 vertebra. Whilst there were initial sciatic symptoms, these have largely resolved”. There had not been complete resolution of symptoms and the clinical records from the plaintiff’s present physiotherapist and the attendance note from Mr Thomas Memeth dated 15 December 2021, showed that the plaintiff has constant back pain of various degrees with occasional right leg discomfort and occasional right leg referred pain.99
114In terms of his return to work, the plaintiff’s duties have changed pre and post- injury. Prior to the injury, the plaintiff performed a manual handling role which was
T 64, L24-30, [2006] VSCA 171
T66, L3-12
T68, L23-26
T68, L26-31
T69, L6-20
predominantly picking.100 Presently, he does a mixture of office-based work and occasional pick/packing work (two to three hours a week), which is very different to the 30 hours per week of pick/packing he was previously working.101
115The plaintiff had a physiotherapy care plan which he was not able to follow as the care plan did not relate to the particular physio and he had not managed to have the care plan adjusted. The plaintiff explained that because he was working night shifts, and the availability of his general practitioner Dr Huma Ajmal he had been unable to have it changed.102
116The plaintiff submitted that the consequences relied on are the plaintiff’s present medication and constant pain, and referring the Court to Halpin v Wilson Transformer Company Pty Ltd103 and Kelso v Tatiara Meat Co Pty Ltd104.
117Furthermore, the plaintiff relied on the case of Hayden Engineering and Davies v Nilsen pointing to the plaintiff’s young age.105 It is submitted that the plaintiff was active before his injury and despite the fact that he has returned to a number of activities, he is significantly restricted in the manner in which he performs those activities and has to deal with pain whilst engaging in these activities.106 Whilst the plaintiff still enjoyed engaging in activities such as cricket and ping pong, it is submitted that in essence, he enjoys those activities but it is not the same as before the injury.107
118It is submitted that the plaintiff is a stoic individual who, despite bearing with persisting chronic pain, should not be penalised for engaging in social activities and sports, as he is simply doing his best and is young.108 He has restrictions when it comes to playing cricket, and despite playing badminton on two occasions
T70, L1-6
T70, L7-24
T71, L23-31 – T72, L1-3
[2012] VSCA 235
[2007] VSCA 267
[2014] VSCA 278
T73, L17-28
T74, L1-7
T74, L8-19
recently, has not returned to playing because it is too physical of a sport for him to play.109
Defendant’s submissions
119The defendant submitted that whilst the WorkCover injury claim dated 26 March 2018 was accepted, the plaintiff had only a minor strain that has since resolved or it ought to have resolved. If there was an ongoing issue of the lower back, it is referrable to the pre-existing congenital abnormality, the spondylolisthesis at L5- S1.110
120He relied on the opinion from Dr Burke in support, who upon examination and review of the radiological findings, opined that the plaintiff had a strain which ought to have resolved.111
121The opinion of Mr Dickinson was that there is no residual effect from the incident in March 2018, and that his examination of the plaintiff was normal in relation to the lumbar spine.112 Despite Dr Dickinson not addressing whether the plaintiff had suffered any aggravation injury, there was nothing in the radiology that identified any significant pathology rather a congenital abnormality.113
122The defendant submitted that Dr Dickinson makes a medical analysis rather than a legal analysis, failing to find any significant explanation for the complaints of pain from the examination or review of the radiological pathology.114 The conclusion of congenital abnormality suggests that there is no reason for surgical intervention, and despite the potential need if there were significant symptoms, there is no real prospect of surgery.115
T75, L1-9
T47, L15-25
T47, L26-30
T48, L1-8
T49, L1-7
T50, L5-13
T50, L28-31 – T51, L1-5
123The opinion of Dr Quan also suggests that the plaintiff has a long-standing condition rather than an injury, and reached this conclusion because of the bone scan which was “cold”.116
124Whilst liability for the claim for compensation had been accepted, the injury did not meet the very considerable threshold.117 Furthermore, if it was accepted that there was an ongoing compensable injury, it is at the very mild end of the spectrum and the consequences that flow do not meet the very considerable threshold.118
125The defendant submitted that it was relevant to look at what the plaintiff has retained, referring to Dwyer v Calco,119 and the plaintiff has retained his work capacity. Whilst the plaintiff could still succeed in a pain and suffering application where there has been a complete return to pre-injury duties referring to the case of Sumbul v Melbourne All Toya Wreckers Pty Ltd,120 the plaintiff has returned to his pre-injury work capacity of 30 hours and has now increased his work capacity to 38 hours.121 By March 2019, the plaintiff had made a complete return to pre- injury hours and duties, and this is without any medical restrictions, as observed by Ms Tess Shelford in her affidavit.122
126The defendant submitted that the plaintiff having more office-based roles does not suggest that he is losing capacity but rather increasing his skill set.123
127The defendant took issue with what the plaintiff has done in terms of managing his symptoms and injury, as there has been no specialist medical care since the orthopaedic surgeon attendance with Mr Quan in August 2018, no physiotherapy
T49, L8-14
T49, L15-23
T51, L15-25
Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292
T52, L4-16
T52, L17-24
T55, L15-25
up until 2019, and there were only two to three attendances to a chiropractor and then no further treatment since 2019.124
128The defendant noted that the plaintiff received a physiotherapy care plan in September 2021 but had not acted on it. The defendant submitted that the plaintiff’s explanation in cross-examination as to why nothing has been done is completely unsatisfactory and demonstrates that the plaintiff is capable of working full-time and managing his back condition and does not require any ongoing treatment.125
129The ongoing provision of anti-inflammatories and over-the-counter pain relief medication is reflective of a mild, ongoing back injury.
130The impression created when reading the plaintiff’s affidavits, was that he did not engage in activities such as cricket, table tennis and badminton. It was submitted that the plaintiff is a lot more active than what he deposes to in his affidavits, and the Court ought not rely on many aspects of the evidence given by the plaintiff because he was often evasive, did not address the questions put to him, and tended to put a spin on his answers.126
131The defendant submitted that if the plaintiff’s evidence was not accepted then the lay affidavit of his brother would be of little use and he referred to the authority of Ifka v Shahin Enterprises.127
Findings
132
I accept that the plaintiff has suffered an aggravation of pre-existing pathology in the lumbosacral region in the form of bilateral pars interarticularis defect of the L5 vertebra. The sciatic symptoms have largely resolved, but the plaintiff has been left with ongoing back pain which is being managed by exercise and analgesia. I prefer the opinion of Mr Grossbard, as he sets out his analysis at arriving at such
T56, L1-5
T56, L19-31 – T57, L1-2
T57, L17-31 – T58, L1-10
T60, L29-31 – T61, L1-8, Ifka v Shahin Enterprises Pty Ltd [2014] VSCA 8
a conclusion. I am unable to discern from Mr Dickinson’s report how he arrives at his conclusion that the pre morbid congenital condition has no material effect on the plaintiff. Mr Dickinson does not identify what injury the plaintiff suffered on 26 March 2018 and merely recounts the plaintiff’s description of the history of the incident and subsequent progress. He does not provide any diagnosis. He does not address what role the incident or injury may have had in causing an aggravation or exacerbation of the congenital symptoms.
133The Medical Panel Opinion was relied on by the plaintiff in support of the submission that the defendant accepted that the plaintiff had suffered a compensable injury. I accept that the opinion is relevant for the purposes of determining the extent of the plaintiff’s injury 128 and, in that regard, it is consistent with Mr Grossbard and the Panel concludes that the plaintiff suffered an aggravation of pre-existing asymptomatic spondylolysis of L5-S1.
134Matters of credibility and reliability are necessarily informed by impression. Having had the opportunity of observing the plaintiff in the witness box, I am of the view that the plaintiff did not overstate his level of disability and I found him to a credible, truthful witness.
135Counsel for the defendant submitted the plaintiff’s credit and reliability is central to this application as medical opinions are largely dependent on it. It was submitted that his veracity had been compromised by his cricket activities, his table tennis, his inconsistent history with respect to any pre-existing back condition and his lack of ongoing treatment.
136The plaintiff made no secret that he had returned to playing table tennis. Dr Ajmal noted in his report dated 13 April 2022, that the plaintiff “is able to do most of tasks including lifting bending, driving, walking, playing table tennis”.129 Dr Grossbard also noted that the plaintiff “told me he has resumed table tennis and badminton
Grech v Orica Australia Pty Ltd (2006) 14 VR 602, [41]
PCB32
on a social basis”.130 These reports predate the affidavit sworn by the defendant’s shift manager, Ms Shelford, wherein she deposes that the plaintiff plays ping pong regularly during his shift breaks. I do not accept that there has been an attempt to conceal his participation in these activities or to downplay his level of activity.
137The plaintiff’s first affidavit refers to him as not being able to “enjoy games for fun like billiards, table tennis and badminton”,131 and he attempted to explain in cross- examination that what he meant was “I actually can’t enjoy the games as much”.132 He maintained he never denied that he played table tennis,133 that he did that at work, and that he socialised with friends. It is clear he has not attempted to hide his social activities. The plaintiff has a good grasp of English and gave his evidence without reliance on an interpreter. However, it is not his first language and I accept that there may be nuances that are lost in translation. I did observe him at times to struggle to articulate his answers and I do not believe he was being evasive but rather my impression was that he lacked the fluidity in the language that native speakers possess.
138Similarly in respect of cricket, the plaintiff readily conceded that he had played cricket following his injury but not as part of the club at which he had a long association. In addition, he had only played a handful of games and certainly not at the same level as before his injury. He deposed that he did play at a lower level and that whilst he was able to bowl at a medium pace before his injury, he now just rolls his arm over. Batting causes his back pain to flare up and his cricket is now “a lot slower”.
139There is no evidence that the plaintiff had any medical treatment in respect of his back before the injury. He reported having discomfort and relying on massages previously, but I find it is significant that he did not report any such discomfort to any doctor or to his employer and he did not seek out any medical treatment. It
PCB 35
PCB7
T27, L20-21
T29, L5
suggests to me that it fell short of pain and was not of any significance. The fact that he has since the work incident, continued to complain of pain, symptoms and restrictions confirms that previously asymptomatic pathology was rendered symptomatic. This is in keeping with Mr Grossbard’s diagnosis that there is an ongoing aggravation. Whilst Dr Burke said there was a back strain which exacerbated the pre-existing bilateral pars defect and that the low back strain or exacerbation resolved, with the ongoing symptoms related to the underlying condition, I cannot see how he has arrived at that conclusion. To the extent that the defendant submits that the accepted injury is no longer materially contributing to the plaintiff’s ongoing condition, it is incumbent on the defendant to identify when that aggravation ceased 134.
140The plaintiff’s evidence has not been undermined. The evidence of his brother was not challenged, and I accept Mr Khizar Babar’s evidence in relation to the plaintiff’s physical restrictions that he has observed in relation to performing housework and chores around the house.
141The plaintiff continues to suffer ongoing pain for which he needs to take the prescription medication, Inza. He also takes Panadol and Nurofen as required. He has been consistent in relation to his complaints of pain and has not sought to embellish these. He readily admits that he engages in activity to the extent that his level of pain permits him to and that he resorts to medication to dela with the pain on a regular basis.
142Dr Quan was of the view that if repetitive bending twisting, lifting and heavier work trigger back pain, then it is common sense that, given the structural pathology in the lumbar spine, if possible, these should be limited. Mr Grossbard also agrees that the plaintiff’s ability to return to pre-injury duties is markedly restricted by the development of back pain, particularly after heavier activity bending and lifting. He considered that appropriate management was for the plaintiff to remain on
134 Watts v Rake (1960) 108 CLR 158
alternative duties and consider a degree of training. The plaintiff’s evidence is that he is restricted in the heavier aspects of his work, his work now is approximately 50 per cent office based, and that his duties are rotated at work.
143I accept that there has been a substantial change in the plaintiff’s occupational capacity. This is attributable to his back injury. His evidence is that his work duties now have a significant component which is sedentary and he deliberately sought retraining to accommodate his back pain and restriction, not just to upskill as suggested by the defendant.
144In Sumbul v Melbourne All Toya Wreckers Pty Ltd,135 Chernov JA observed that it would ordinarily be difficult to conclude that pain and suffering consequences could be considered to be at least very considerable where it was demonstrated that the injured person was physically able to return to work. However, in subsequent decisions of the Court of Appeal, it was considered that Sumbul is not authority for the proposition that a return to work is somehow determinative against an injured person on the issue of pain and suffering consequences.
145In Stijepic v One Force Group Aust Pty Ltd & WorkCover Authority,136 Ashley JA and Beach AJA considered that the most that could be said, and what can be taken from what Chernov JA said, is that if an injured person successfully returns to work, it will tend, in the absence of other relevant evidence, against a conclusion that the pain and suffering consequences of the compensable injury are “serious”. They added that it is the whole of the evidence that must be considered.
146In Haden Engineering,137 Maxwell P said:
“In its accepted interpretation, the ‘pain and suffering consequence’ of an injury encompasses both the plaintiff’s experience of pain as such and the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life. (I will refer to the second element as ‘the disabling effect’ of the pain.)”
[2006] VSCA 292
[2009] VSCA 181
(Supra) at paragraphs [9]-[12]
147The plaintiff derives satisfaction from being at work and he has said that it is important for him to remain at work for his mental health. To this extent he tolerates the pain and symptoms as he wants to remain employed and he displays a level of stoicism in his approach to wanting to remain employed. I accept that he prioritises his work over seeing his doctor or organising a physiotherapy care plan. He should not be criticised for not seeking out further specialised treatment when there is no indication such is required. Mr Grossbard view is that his ongoing treatment should remain conservative and only include an exercise program.
The experience of pain
148As to the experience of pain as such, the Court must assess the intensity of the pain which the plaintiff experiences. For this purpose, pain intensity is often classified on the scale “mild/moderate/severe”. Unless the pain is constant, the Court will need also to assess the frequency and duration of the pain episodes.
149The evidentiary basis of the pain assessment will ordinarily compromise the following:
(a)what the plaintiff says about the pain (both in Court and to doctors);
(b)what the plaintiff does about the pain (for example, medication, rest, seeking medical treatment);
(c)what the doctors say about the extent and intensity of the plaintiff’s pain; and
(d)what the objective evidence shows about the disabling effect of the pain.
150As to (a), the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility. The Court will make its own assessment of the plaintiff’s credibility if he/she gives evidence,
and will also take into account views expressed by examining doctors about the reliability of the plaintiff’s accounts of pain”.138
151In the context of the principles condensed by Maxwell P in Haden Engineering, I note that the plaintiff reports that his back pain is present most of the time and that he regularly takes prescription medication as well as over-the-counter painkillers. This in, the context of the plaintiff’s age and the fact that it will not improve over time, is a serious consequence.
Conclusion
152When these consequences are balanced with what the plaintiff has retained, I am persuaded, on the balance of probabilities and in the light of the evidence as a whole, that the consequences to the plaintiff satisfies the test. I accept that this injury has had consequences to him, and I am satisfied that, when judged by a comparison with other cases in the range of possible impairments, the injury can fairly be described as being “more than significant or marked”, and as being “at least very considerable”.
153The plaintiff therefore satisfies the narrative test for pain and suffering.
154Accordingly, I grant the plaintiff’s application.
155I will hear argument with respect to costs.
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