Barker v Addforce Personnel Services Pty Ltd
[2013] VCC 245
•22 March 2013
| IN THE COUNTY COURT OF VICTORIA | (Un) Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-12-00074
| SEAN RONALD BARKER | Plaintiff |
| v | |
| ADDFORCE PERSONNEL SERVICES PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE COHEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 & 26 February 2013 | |
DATE OF JUDGMENT: | 22 March 2013 | |
CASE MAY BE CITED AS: | Barker v Addforce Personnel Services Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 245 | |
REASONS FOR JUDGMENT
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Subject: Serious Injury Application
Catchwords: Pain and suffering only; injury to lumbar spine; susceptibility to exacerbations; diminished employment options
Legislation Cited: Accident Compensation Act 1985, S134AB
Cases Cited: Haden Engineering v McKinnon [2010] VSCA 69
Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at para [27]
Judgment: For plaintiff.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Churilov | Adviceline Injury Lawyers |
| For the Defendant | Mr R Stanley | Minter Ellison |
HER HONOUR:
1 Mr Sean Barker suffered injury during his employment with the defendant in May 2005. He seeks leave to bring a claim for damages in respect of that injury, so must satisfy the court that he suffered a “serious injury” within the requirements of s134AB of the Accident Compensation Act 1985 (“the Act”). He has maintained employment for most of the time since his injury, so seeks leave in respect of pain and suffering damages only.
2 The plaintiff’s injury was to his low back, and he relies on paragraph (a) of the definition of “serious injury”[1], claiming to have suffered “serious permanent impairment of the function of” his lumbar spine. Under that definition, he must satisfy the court, on the balance of probabilities, that the injury he alleges to his lumbar spine has resulted in consequences which, when compared with other cases in the range of possible impairments of body function, can fairly be described as “more than significant or marked and at least vey considerable”,[2] and will remain so for the foreseeable future.
[1]s134AB(17)
[2]s134AB(38)(b) and (c)
3 The defendant does not dispute that Mr Barker suffered injury to his low back on or about 13 May 2005 at work, nor that he has continued to suffer some consequences from that injury, including exacerbations in February 2009 and October 2010. However, it argues that overall the consequences have not been serious enough to satisfy the definition of being “more than significant or marked and at least very considerable”.
4 The evidence consisted of the documents set out in the attached schedule, and oral evidence from the plaintiff on cross-examination.
5 As in most cases of this nature, the credibility and reliability of the plaintiff is important, as not only the court, but also doctors whose opinions are in evidence, are heavily reliant upon the plaintiff’s account of when and in what circumstances symptoms commenced, and the extent and nature of such symptoms and their interference with the plaintiff’s activities, lifestyle and capacity to work.
6 My impression of Mr Barker was that he is a very credible witness. He gave evidence in a straightforward manner, answered questions simply without any prevarication, and conceded most of the factual propositions put to him, including some which did not help his case. In my view that lent weight to the few, but important, facts on which he resisted the defendant’s propositions. Despite the best efforts of the defendant’s counsel to persuade me otherwise, it was not my impression that he was exaggerating or embellishing his symptoms or their effect on him, including the constancy of his back pain. His posture and movements in the witness box were consistent with a man suffering from significant back pain, holding himself stiffly at times and displaying genuine relief when able to shift position.
The plaintiff’s background
7 Mr Barker is now aged 38. He left school aged 17 when his family moved overseas. When they returned to Australia he was about 20, and he started an apprenticeship to become a vehicle body builder, but left after a couple of years when he discovered he was allergic to paint and thinners. Over the next 10 years he worked in security for various companies and through different agencies, interspersed with some factory work as a machine operator. He ceased security work as he wanted to spend more time with his young children.
8 He had suffered several prior injuries, commencing with a knee and collarbone fracture playing football, and also some upper or middle back injuries at prior work. However, prior to 2005, he had not suffered any low back injury, and there is no evidence of his ever suffering any prior low back pain.
9 Prior to May 2005 he had separated from the mother of his two children, and the children were living with her. He was living with his parents at the time of this injury.
10 Through the defendant as a labour hire company, he had commenced working as a casual labourer for PEKI Transport Equipment Pty Ltd in the smash repair section of that company’s truck body building business, in early 2005.
Occurrence of injury
11 In late April or early May 2005, he was transferred to the rigid section and that required heavier and more strenuous work, in particular, a lot of bending, twisting and stretching of his lower back, as well as exertion of significant force when using the air sander to sand t-nuts on the truck bodies.
12 On 13 May 2005, he was seated on a crate provided for the purpose and leaning forward using an air sander on sand t-nuts to make them flush with a truck body, which required sustained reaching forward and exertion in that position by him. After about 30 minutes he felt a “pop” in his lower back and sudden pain radiating from the lower back into both legs.
Treatment and subsequent history
13 Following the injury Mr Barker attended at the “company’s doctor” at the Dandenong (“Heritage”) Clinic. He saw Dr Poboran that day, and was referred for an x-ray of his low back which showed no abnormality, and prescribed pain and anti-inflammatory tablets. With his pain continuing he re-attended and his care was taken over by Dr Demirtzoglou, who referred him for a CT scan of his low back. It was reported on 26 May 2005 as “within normal limits”[3].
[3]Exhibit 8
14 He was referred by Dr Demirtzoglou for physiotherapy with Ms Patricia Grundy of Backs Management, where he was treated from 7 June to 19 July 2005, for what he reported as constant low back and bilateral buttock pain referred down both legs to the ankles with paresthesia in the same distribution from buttocks to the ankles, with symptoms worse when bending, sitting, rising from sitting, lying supine and on his sides and sometimes when walking (depending how fast). Ms Grundy considered that subjective history and objective evaluation indicated a broad-based lumbar disc pathology notwithstanding the CT scan result.[4] After six sessions his symptoms were still of constant low back and buttock pain, including the hip area with intermittent pain in the thighs, less frequently below knee level but constant left lateral thigh paresthesia with intermittent right lateral thigh paresthesia. She considered that by then he should be able to return to modified duties, with a maximum load of five kilograms, for up to one-third working hours, and the rest with negligible loads, but noted that the previous employer would not take him back to any duties until he was fully recovered. He was doing exercises every waking hour at home. Ms Grundy suggested and MRI and/or referral to a neurosurgeon.[5]
[4]Exhibit C
[5]Exhibit C
15 Although by early June he was certified as fit to return to light (office) duties with no lifting or bending, PEKI Transport would not accept him back except at his full pre-injury duties, so he was not able to return there.
16 In August 2005 Dr Demirtzoglou referred him to an orthopaedic surgeon, Mr Razif, who ordered an MRI of the low back. At that stage Mr Barker reported that his back ache had improved but not resolved, and he had occasional radiating pain in both legs when walking or sitting. On examination there was vague tenderness in the lower lumbar region with only slight limitation in range of movement on pain. The MRI was reported[6] as showing normal alignment, vertebral body height and marrow signal of the lumbosacral spine, moderate degenerative facet joint hypertrophy at the L2-3 to L4-S1 inclusive, and “at L5-S1 there is only shallow broad-based disc bulge associated with annular fissure. This contacts the traversing S1 nerve roots without convincing compression”.
[6]Exhibit B – 6 September 2005 – Dr Naidoo
17 Mr Razif described the MRI as revealing mild bulging with annular fissure at L5/S1 without compression of the nerve roots.[7] As Mr Barker was about to start a rehabilitation program and Mr Razif was told he was to be retrained in information technology, Mr Razif recommended he continue with the back care program, avoid levering his lower back with frequent bending and lifting, and did not arrange to further review him but asked him to return if he had further exacerbation of his symptoms.
[7]Exhibit J – letter to Dr Demirtzoglou 19 September 2005
18 In a subsequent medico-legal report[8], Mr Razif noted that when working as a vehicle bodybuilder Mr Barker had strained his lower back resulting in internal disruption of his L5-S1 disc, giving rise to his back symptoms and referred pain in his lower limbs occasionally. He thought this consistent with the description of the work duties at the time, and that as a result of the underlying pathology that occurred in his lower back, Mr Barker could develop recurring symptoms with physical activities that would tend to exert excessive stress to his lower back, and it would not be appropriate for him to return to work that would involve such activities. He thought arrangements for rehabilitation to strengthen his lower back and maintain flexibility of his spine were appropriate and hopefully would minimise the stress to his affected lower lumbar discs. He thought work such as IT work, for which he would need training, would be appropriate, if he would be able to move about and not be confined for one position for long periods. He did not recommend other treatment than the back care rehabilitation program of which he had been told and thought he would hopefully be able to return to some form of useful work once he had been retrained.
[8]Exhibit J – 28 November 2005
19 Mr Rodney Simm, orthopaedic surgeon, examined Mr Barker on behalf of the WorkCover insurer on 20 July 2005.[9] He diagnosed lumbar back strain with a possible lumbar disc injury. He suspected that Mr Barker had some pre-existing lumbar disc degeneration, and as a result of the strain he had probably caused some degree of disc disruption in the degenerative lumbar intervertebral disc, which would not be evident on a CT but maybe evident on a MRI scan. As there had been no history of lower back pain prior to 13 May he thought the work that day was of a nature presumably sufficient to cause lumbar disc disruption, and the “pop” described by the patient was typical of that injury. He expected an MRI scan would confirm his clinical diagnosis. He considered the injury had led to severe back pain and restricted the plaintiff’s tolerances to sitting, walking and undertaking physical activities, and that suitable employment would be light work which offered flexibility with sitting and standing, elimination of prolonged and repetitive forward bending and twisting movements of the trunk, a five kilogram lifting limit, and objects would have to be handled between knee and chest height. He considered him not fit to return to his pre-injury duties, could not predict when he would be able to return to pre-injury duties but he noted that was improving. He noted that physiotherapy is not able to contribute to healing of the injury, but is helpful in producing some improvement in daily function by the reduction of pain. He supported ongoing attendance at the Backs Management but not indefinitely. He did recommend an MRI scan. He considered the prognosis uncertain as the injury was relatively recent when he saw the plaintiff and further improvement might well occur.
[9]Exhibit K
20 In September 2005 a multidisciplinary assessment was prepared at Victorian Rehabilitation Centre by Dr Richard Clements.[10] On assessment, his lumbar range of movement was mildly limited and lower limb strength mildly reduced to manual testing. He demonstrated manual handling to a restricted light level and was said to demonstrate the ability to lift 10 kilograms from the ground, 10 kilograms overhead to eye level and 15 kilograms at waist level and able to front carry to five kilograms, side carry seven kilograms on each of left and right, and a static push force of 22 kilograms and a static pull force of 25 kilograms. He reported variable sitting tolerance, was unable to complete 20 squats or to sustain trunk flexion in standing. The examiner concluded that he did not demonstrate the ability to perform critical job demands for the following tasks: lifting, carrying, pushing and pulling. He was considered to have demonstrated consistent performance during the evaluation and functional limitations were noted to be consistent with physical impairments noted during the musculoskeletal examination. He was considered cooperative throughout the assessment procedure. He was considered to have expressed appropriate concerns about being able to return to his pre-injury employment and had already given thought to alternatives and it was noted that the placement employer had in any event been reducing its staff numbers. It was recommended that Mr Barker participate in a six week interdisciplinary rehabilitation program with the goal of increasing his strength and conditioning tolerance for work and other activities and pain management skills, and that he be referred to vocational rehabilitation services for assistance with changing his occupation. It had been noted by the employer (Adforce) that most employers require staff on an unrestricted basis in terms of their physical capacities. Thus, the overall goal was that he would obtain alternative employment following the completion of the IDR and vocational rehabilitation programs.
[10]Exhibit P
21 Mr Barker commenced the multidisciplinary program but ceased after about a week as he decided to take up alternative employment by returning to security work. He obtained such employment through New Force Security (AVS) as a casual in about mid-November 2005, as he believed he would be able to do mobile patrols going to various pubs all over Melbourne and be able to sit, stand or walk around as his back would require. He ceased that work in about July 2006 in order to be able to spend more time with his young children as the hours of that work would not permit.
22 Through another job agency, he obtained work at Woolworths as an order picker, but within about three weeks exacerbated his back pain when lifting a box weighing under 10 kilograms to transfer it from one pallet to another and experiencing another pop in his lower back and referred pain down his legs. He attended Dr Demirtzoglou on that day, 11 August 2006, for treatment. He was certified in early September as fit to return to work, but realised that the store work at Woolworths was not appropriate and decided to return to security work at pubs through New Force Security. Over the following two years or more, he says that he continued to experience low back pain but was not seeking active treatment, and managed to adjust his activities and continue to perform his back exercises to keep functioning at both work and living activities.
23 On about 10 February 2009 he suffered a severe exacerbation of his back injury while working on security at the Sands Hotel when he lent forward to pick up a glass he needed to clear. He immediately suffered severe lower back pain and referred pain down his legs, and these increased over the following couple of weeks until on 28 February 2009 he experienced difficulty walking, and as a result attended at Casey Hospital. He was discharged into the care of his local general practitioner and returned to the Dandenong (Heritage) Medical Centre where he saw Dr Fernando[11] and was prescribed Endone and Brufen. He was referred for physiotherapy treatment to Ms Kalana Pieris.
[11]Exhibit D
24 Ms Peiris first saw him in March 2009 on referral from Dr Fernando for management of his severe back ache, at which time he required the use of two elbow crutches to walk. He reported a sharp stabbing pain across his low lumbar spine with shooting pain radiating down his right leg to roughly the level of his right knee, and he was physically very limited in forward flexion or lumbar extension. Palpation of his lumbar spine revealed muscle spasm in the paraspinal muscles. Initially treatment involved soft tissue therapy to relieve the muscle spasm but taping of his lumbar spine brought on an allergic reaction. After three weeks of treatment he had made a good recovery and was not seen by that physiotherapist again until 7 October 2010 (on a further exacerbation).
25 Mr Barker was off work for about a month from 28 February 2009 as a result of this exacerbation of his lumbar symptoms, but they did not fully resolve, and his return to work was on reduced hours.
26 Dr Fernando also referred Mr Barker to Dr A Tang, orthopaedic surgeon, for further management but Dr Tang referred him on to Mr Craig Timms, neurosurgeon. Dr Fernando reports that when last seen by him on 25 March 2009, Mr Barker was showing signs of improvement and was advised to continue with physiotherapy. He had not yet had his consultation with Mr Timms, but Mr Timms reported back to Dr Fernando that surgical intervention was not necessary and Mr Barker was advised to continue physiotherapy and hydrotherapy.[12]
[12]Exhibit D
27 Before seeing Dr Tang or Mr Timms, in early April 2009 Mr Barker was examined for the defendant by Mr Robert Marshall. He took a history of previous back pain developing in 2005 when employed by PEKI Transport, being off work for eight months during which time he was treated at a Victorian rehabilitation centre, and then able to go back to work and “had no further problems”. Mr Marshall’s history also seems to differ from all others as it originally was of the back pain gradually developing in late 2008 and no incident or accident to precipitate it, and going to hospital on Saturday 14 February after he collapsed on the floor and his father rang an ambulance, but then it seems the plaintiff did tell him of feeling acute pain leaning over for a glass while at work in February 2009. Mr Marshall also records appears to have had available some documents from Casey hospital as he notes that Mr Barker had been given injections for pain, including morphine, and was sent home on crutches with some NSAID medication. Mr Marshall records that the plaintiff told him his back was much better and he had no more than a very slight low back pain, and felt able to return to work[13]. He had been having some physiotherapy and the exercises he had been given “produced complete relief”.
[13]Exhibit 7
28 On examination Mr Marshall found no signs of any neurological, muscular or joint deficit. He saw the radiology report of the MRI of 6 September 2005 and appeared to have a Casey Hospital report and a “DW Bowe circumstance report of 6/4/09”, neither of which was in evidence before me. Mr Marshall’s opinion was that Mr Barker appeared to have suffered a quite minor back injury involving no more than a musculo-ligamentous strain, and it was now two months since he felt the original “pop” in his back and six weeks since he went off work and had reached the stage where Mr Marshall could find nothing and felt he had completely recovered. He did not feel able to make a comment about what the situation might have been four years earlier or even four months earlier, but felt there was no significant injury present at the moment and that the plaintiff himself complained of nothing more than slight low back pain. Nevertheless he did believe that the employment must have been a significant contributing factor to his then current condition and felt him fit to resume his pre-injury employment without any restrictions or modifications[14].
[14]Exhibit 7
29 Mr Timms first saw the plaintiff on 12 June 2009, took a history of the original injury, and that with long term treatment his back had settled down and he had managed to return to work, but more recently he had a recurrence of the same symptoms after bending over and picking up a glass causing quite a severe amount of pain in the back and at times down the leg. By June 2009 he was back at work two days a week, but still had some pain in the back at times, although with back exercise and stretches it seemed to settle and resolve and he had no weakness in the legs but occasional tingling without permanent sensory deficit. On examination Mr Timms found him able to walk normally with good strength in both legs and normal tone sensation and reflexes. Mr Barker was able to mark out some pain in the midline lumbar spine and Mr Timms thought there may be some altered sensation on the lateral aspect of the right leg and the plaintiff’s description of when he did have sciatic symptoms was in the L4-5 distribution.
30 Mr Timms ordered an up-to-date MRI which reported at L4-5 normal disc contour, facet arthropathy of a mild to moderate grade bilaterally but canal and foraminal dimensions were normal. At L5-S1 there was a mild, shallow disc protrusion posteriorally indenting only the ventral epidural fat layer, mild facet arthropathy was noted bilaterally but no radicular compression. The overall comment was “right paracentral disc protrusion and radial fibre tear L2-3 without focal radiculopathy”.[15]
[15]Exhibit B – report 15 June 2009
31 Mr Timms reported[16] that Mr Barker was working without performing regular bending or a lot of picking up or collecting and had recently stopped taking regular medication. Although Mr Barker reported some persisting midline back pain, he felt the sciatica had largely resolved and he rarely had symptoms down his legs.
[16]Exhibit F – 14 May 2011
32 Mr Timms considered that the MRI scan revealed minor disc bulging at the level of L2-3, however no focal neural compression, normal alignment and no evidence of any fracture. He reviewed Mr Barker on 25 August 2009 and advised that he did not require any neurosurgical operative intervention. As he had already returned to work, Mr Timms advised Mr Barker that continuing to improve his core muscle strength with physiotherapy, Pilates and some hydrotherapy would most likely be able to further improve his back symptoms. His diagnosis was a lower lumbar back strain whilst at work which had largely settled with physiotherapy and hydrotherapy. He thought it likely that he strained the musculature of the lumbosacral spine and this is likely the cause of the current (June 2009) presentation but his symptoms were responding to treatment with physiotherapy, hydrotherapy and Pilates and no neurosurgical operative intervention was required. He noted that Mr Barker had already returned to work as a security officer in crowd control but been unable to return to full pre-injury duties, which had been full-time work, due to the symptoms of his back pain which tended to aggravate every second or third day of work, and felt that if bending and lifting were restricted he was able to cope reasonably well, but did not think he would be able to take up an occupation in a heavy manual labouring occupation. He felt he was left with some midline chronic back pain and that had prevented him from returning to his pre-injury duties.
33 Mr Barker continued with the security work three to four days a week until about late November 2009. He did experience some flare-ups of pain symptoms which he would deal with by trying to rest and take occasional time off work.
34 About late November 2009 he attempted different work as a subcontractor delivering furniture. However, that work had too much heavy lifting, causing increased back pain with which he could not cope, and he left after about a month, realising that it was too heavy a job for him with his back condition.
35 In about February 2010 he obtained a job with Waeco Pacific Pty Ltd driving trucks delivering caravan components. He managed to cope with this work better than the furniture deliveries, as he had equipment to assist in moving items across the truck tray, but he was experiencing ongoing lower back pain. Then, on 7 October 2010, while helping a co-worker to load an awning weighing about 20 kilograms onto a truck, he again felt a pop in his lower back. As a result he was taken by ambulance to the Dandenong Valley Hospital where he was seen in emergency, complained of lifting a 20 kilogram object in the course of his work and feeling a sudden “popping sensation” in his lumbar spine. He presented with “acute lower lumbar” and “referred down both groins”. There was no sensory deficit or incontinence but on examination there was tenderness and muscle spasm over the right paravertebral area. A CT scan was taken which is recorded as showing minor disc bulge at L3-4 with no neural compression. When reviewed on 11 October 2010 ongoing back pain was getting slightly better but he was still unable to bend or fully work, and he was certified unfit for a further week and referred for further physiotherapy. NSAIDs and Endone were prescribed. The diagnosis was acute lower back pain[17].
[17]Exhibit M
36 He was also referred from the emergency doctor back to Ms Peiris for further physiotherapy which was undertaken again, massaged to reduce muscle spasm and an exercise program to improve lumbar extension. After two weeks of such treatment, a core stability program was also commenced to improve activation and control of the lumbar stabilising muscles and, finally, a walking program prescribed. His final treatment session was on 10 January 2011 with Ms Peiris, where Mr Barker had no complaints and was thus discharged, although at that stage still on restrictions at work so he had not returned to full duties. Ms Peiris’s opinion on his prognosis was that after the two exacerbations for which she had treated him in that two years, he seemed to have a chronic condition involving the discs of his lumbar spine which can become reaggravated by repetitive heavy lifting, and given that he should avoid any work that required him to lift more than 10 kilograms or any work that required him to bend and lift repetitively. She understood there had been discussion of a pain management centre supervising an exercise program for him, however it had not been organised at the time she last saw him on 10 January 2011.[18]
[18]Exhibit E
37 Following treatment for the October 2010 exacerbation, Mr Barker did not return to the previous truck delivery work but has remained ever since working for Waeco Pacific Pty Ltd. He returned to work on modified duties with restrictions of no lifting above 10 kilograms and no truck driving, and was put on to duties of counting small parts in the storage centre, and using a computer to process forms and invoices and other office duties. Although the employer wished him to return to truck driving, he refused due to his lower back and what he understood his medical advice to have been. The employer was supportive of him with his lower back injury and restrictions, and since that time has moved him into duties as an inventory and stock controller, most of the time using the computer to check that stock is picked correctly and also chasing up outstanding or incorrect orders and ensuring the repairs are done if necessary. In this work he is able to change his posture from sitting to standing and can move around and also take short breaks at work to ease his lower back pain.[19]
[19]Exhibit A, affidavit of 25 January 2013, paragraph 3
38 Until shortly before the hearing of this case, Mr Barker had not attended a general practitioner for his lower back or referred leg pain since late 2011. However, on 17 January 2013 he attended Dr John Lai at Narre Warren Clinic with the complaint of pain in his lumbosacral area going down to his right leg, which he related to hurting his back in 2005 and having the same injury five times since. He was certified unfit for work or usual activities that day, and prescribed Arthrexin which Mr Barker understood to be an anti-inflammatory.[20] When having that prescription made up, he was also recommended Mersyndol by the pharmacist which he had been taking ever since. He said that Dr Lai recommended he return if he required a further prescription but as at the date of the hearing he had not done so.
[20]Exhibit N
39 In cross-examination it was put to Mr Barker that he had consulted Dr Lai at the suggestion of his solicitors, in light of the upcoming hearing of his case and the fact that he had not attended a doctor for treatment for more than a year. Mr Barker denied this, saying that he attended Dr Lai at a new clinic because he had had to leave work with back pain that day. Given Mr Barker’s frankness in his general evidence, I see no reason to disbelieve him in this answer. In any event, I would not infer that this consultation with a doctor had been prompted by his solicitors, because it was not mentioned in the updating affidavit, and although instructions for it were given shortly before his seeing Dr Lai, it was not sworn until 23 January 2013, and the doctor’s visit could be expected to have been added if that were the purpose of the visit.
Other medico-legal opinion
40 Mr Brendan Dooley examined Mr Barker for the defendant in July 2011. His diagnosis was that Mr Barker suffers from a chronic low back strain due to aggravation of disc degenerative changes in the lumbosacral spine with back pain and referred pain to both legs, that his condition relates to the original injury of 13 May 2005 from which he has suffered from ongoing minor symptoms ever since, with recurrent flare-ups of back pain and sciatica following further incidents on 11 August 2006, 14 February 2009 and 7 October 2010. He considered Mr Barker required no ongoing physical treatment and that surgery was “contra-indicated” but believed he was probably permanently disabled for very heavy physical work. His current job was entirely satisfactory with lifting restrictions of weights of no more than 10 kilograms.[21]
[21]Exhibit L
41 In October 2012 the plaintiff was examined for the defendant by Mr Michael Dooley[22]. At that time he complained of ongoing lower back pain with intermittent radiation of pain down both legs, and at times acute exacerbations of low back pain, and that after 10 to 15 minutes of walking his back pain could flare and radiate to the groins. He said that prolonged sitting also aggravated his back pain. He was taking Panadol Osteo for pain, and did stretching exercises which he had been taught in the past by a physiotherapist. He was working full-time as an inventory and stock controller which work involved no lifting. He was wearing a lumbar support and said that if he left the support off for too long he gets acute low back pain. On physical examination there was tenderness of the low lumbar region in the midline, flexion was to 50 degrees and extension to 15 degrees and lateral flexion and rotation to each side were to 20 degrees. Straight leg raising was to 40 degrees on both sides at which stage Mr Barker noted low back pain. Reflexes, tone and sensation were intact in both legs. Mr Dooley did not see x-rays for review, but was told by Mr Barker that an MRI scan in September 2005 had showed evidence of degeneration of the lumbosacral disc with mild bulging and annular fissure. Mr Dooley also noted that MRI scanning of the lumbar spine in June 2009 reports degeneration of the L2-3 level with an annular tear on the right side and degeneration was noted at the L4-5 and L5-S1 levels.
[22]Exhibit 6
42 Mr Dooley’s opinion was that naturally occurring degenerative disc disease of the lumbar spine involving multiple levels was present, and based on the description of the onset of lower back pain in May 2005 after using equipment in a bending and leaning forward position, he believed that Mr Barker had sustained a soft tissue injury to his lumbar spine in this episode and that the injury most likely involved aggravation of underlying degenerative disc disease. He understood that symptoms had improved over about a six month period, and Mr Barker had carried out security type work, but there had been specific onset of acute low back pain after bending forward to lift a glass in 2009, and further episodes of acute back pain, when lifting in October 2010, as well as spontaneous exacerbations of acute low back pain having also occurred. He noted that Mr Barker’s exacerbations have occurred more frequently and have involved an intensity greater than one might ordinarily expect to see in a patient with symptomatic degenerative disc disease of the lumbar spine who can note a background aching type pain with superimposed acute exacerbations of pain. He did not think any surgery was indicated or other formal conservative treatment, but that regular low impact exercise would be helpful to reduce frequency and intensity of exacerbations. The PIaintiff’s work duties were appropriate for his condition. Mr Dooley thought that if he does have an acute exacerbation of pain that fails to settle in a timely fashion then short term physiotherapy would be reasonable.[23]
[23]Exhibit G
43 After being forwarded the most recent radiological investigations – an x-ray of 2 November 2012 and MRI of 14 January 2013 – Mr Dooley agreed with the conclusions reached in the radiology reports (thereby disagreeing with Mr Schofield), and said that the radiological findings did not cause him to alter his previously expressed views.[24]
[24]Exhibit 6
44 Finally, the plaintiff relied on a medico-legal report obtained from Mr Stanley Schofield, orthopaedic surgeon.[25] Mr Schofield examined Mr Barker on 30 October 2012 at which time he complained of persistent lower back pain present all the time, which got worse as days progressed, even though he was lifting only light objects at work, and the symptoms were worse if he sat for more than an hour or stood for more than half an hour, with aggravation coughing and sneezing. He said he could not walk far. His sleep was disturbed but he got relief while flexing his back and lying on his side. He was doing extension-type exercises and regularly using Nurofen Osteo. He also said he had bilateral leg pain radiating to the groin and then to the back and sides of each leg to the foot, worse on the right side, and causing him to limp from time to time. On examination Mr Schofield found tenderness to the left of the midline at L4-5 with a range of spinal flexion reduced to about half normal, and extension was minimal and painful. Straight leg raising on the right was to 40 degrees reproducing right leg pain and 50 degrees on the left but there was no wasting of muscles on either leg and neurology in the legs was normal.
[25]Exhibit H
45 Mr Schofield noted the results of earlier MRI scans of September 2005 and June 2009. He ordered a further x-ray of the plaintiff’s lumbar spine, including erect views, and gave his view on those films which he considered demonstrated quite marked disc space narrowing at the lumbosacral level. He noted the measurements he made to reach his view. He noted that the erect flexion view was limited by muscle spasm. There was evidence of facet hypertrophy affecting the lower two spinal segments. Based on these findings, he noted that the spinal extension exercises which the plaintiff had been continuing, having been taught them by his physiotherapist, were only likely to cause further pain. Mr Schofield considered that the erect view x-ray showed further worsening of the lower two lumbar discs whilst under load when compared with the supine view which showed only very slightly reduced L4-5 disc compared with L3-4.
46 In a supplementary report, two weeks later, Mr Schofield provided the radiologist’s report on those x-rays[26] and stated that he rejected the radiologist’s conclusion of no spondylosis distinct disc narrowing or other significant abnormality being detected and would send the films back for a further review with a revised report. His subsequent report indicates that no revised report was provided to Mr Schofield but he maintained his rejection of the opinion in the earlier report.
[26]Exhibit H, letter 14 November 2012 and report of Dr Donald Leung, undated.
47 A further MRI scan was performed on 14 January 2013 and Mr Schofield reported on it.[27] He disagreed with aspects of the report of the radiologist Dr Blecher in that he considered that there is chronic degenerative change affecting L1-2, L2-3 and L5-S1 and that the disc spaces are narrowed at L1-2, L2-3 and L5-S1, whereas Dr Blecher had reported at L2-3 a right paracentral disc protrusion abutting the theca but not causing any nerve compression, and at the lumbosacral level a minor disc bulge without any neural contact. Dr Blecher had reported disc desiccation and degenerative change at multiple levels. Mr Schofield considered that oblique views demonstrate significant narrowing of the canal due to a combination of facet hypertrophy and a bulge at the posterior margin of the lumbosacral level. The facet hypertrophy was also affecting L4-5 and L3-4 and with a combination of disc desiccation and a mild bulge at L2-3. Mr Schofield said he would send these films back for further examination by the radiologist if required, but I am unaware whether that occurred.
[27]Report dated 8 February 2013.
48 After the latest MRI, Mr Schofield maintained the opinion he had given in October 2012, that the history was consistent with the development of an acute lumbar disc prolapse, irritating and probably compressing both S1 nerve roots at the lumbosacral level, and that there had not been a complete return to normal at any time since, with recurrent acute attacks of pain occurring on a number of occasions. He considered that the plaintiff was now stabilised, with chronic pain but being able to perform light duties with continuing significant restriction of normal activities of daily living due to pain. He considered that the extension exercises taught by the physiotherapist were only likely to aggravate the disc prolapse. His diagnosis was of a central lumbar disc prolapse probably affecting the lumbosacral level which may include L4-5, that the injury of May 2005 predisposed him to further aggravations and, in particular with physical activities exertion, that his prognosis was guarded. He recommended an MRI in the upright position (only available in Sydney) by way of further investigation.
49 The defendant argues that Mr Schofield’s opinion should be rejected. First, it is submitted that in taking on himself to recommend scans in the upright position he was acting outside the scope of a medico-legal report. It was pointed out that although he rejected the opinions of the radiologists reporting on the upright x-ray taken at the end of October 2012, and of the further MRI taken February 2013, he was on his own in doing so as Mr Dooley had been asked on those specific points and reported that he agreed with the opinions of the radiologists.
50 Without hearing oral evidence or further explanation from the radiologists in question, Mr Schofield or Mr Dooley, I am not in a position to determine whether the radiologists’ reports on those scans are significantly inaccurate, nor whether Mr Schofield’s view should be preferred. This is not the first case I which I have read or heard medical opinion that scans taken in the upright position, showing the discs weight bearing, may show differences from scans of the same patient lying supine, and that view has not been limited to other reports by Mr Schofield although it is certainly a recurring one from him. The prospect of differences between a weight-bearing view and one lying horizontal seems to me to have some logical basis in theory, but without hearing doctors explain specifically what was and what was not shown in the current set of scans, I make no finding on it in this case.
51 Therefore, to the extent that Mr Schofield’s opinion is of actual compression of the S1 nerve root, or more serious or pessimistic prognosis than that of other doctors in relation to Mr Barker, I give it minimal weight in that it is based on untested different views of the more recent radiology. Nevertheless, excluding the issue of the radiology, it seems to me that Mr Schofield’s general opinion on the plaintiff’s condition does not differ greatly from that of Mr Simm and Mr Brendan Dooley and Mr Razif (albeit all much earlier), nor of Mr Timms, or possibly even Mr Michael Dooley.
Findings as to compensable injury
52 I note that liability was formally accepted for an injury (injury date:13/05/2005) described as “aggravation of disc degenerative changes in the lumbosacral spine”[28]. I am satisfied that the preponderance of medical opinion is to the effect that arising from his work duties in early May and particularly on 13 May 2005, Mr Barker suffered injury to his lower lumbar spine, probably by way of disruption to his L5-S1 lumbar disc. There was already existing but asymptomatic lumbar disc degeneration, and I am satisfied that the May 2005 injury activated symptoms of lumbar back pain and also referred pain down both legs and at times into both groins. Notwithstanding that Mr M Dooley describes it as “a soft tissue injury to his lumbar spine”, which most likely involved aggravation of underlying degenerative disc disease, he accepts that the frequency and intensity of Mr Barker’s episodes are greater than one would expect from the condition generally of underlying degenerative disc disease of the lumbar spine. In these circumstances, whether Mr Dooley agrees that a disc was disrupted does not, in my view, make any significant difference. I find there was a compensable injury to the plaintiff’s lumbar spine.
[28]Exhibit O
Do the Consequences of the compensable injury satisfy the test to constitute a “serious injury”?
53 The defendant accepts liability for the original injury and for the flare ups since. It argues, however, that both the original injury and the flare ups should be seen in context, and that they do not result in permanent consequences to the plaintiff serious enough to meet the test of “more than significant or marked and at least very considerable”.
54 The defendant points to the plaintiff having recovered from the initial injury and each flare up sufficiently to return to work within weeks or at most a few months after the original injury (actually certified fit for light duties sooner but none were available). Also, despite short periods of prescribed medication and of physiotherapy, there has been no long term strong medication nor ongoing treatment needed. It argues that I should not accept Mr Barker’s evidence of his having had constant back pain, even if varying in degree, because he has not mentioned it to GPs he saw for other medical conditions over the years, such as at the Casey Superclinic[29], and Rowville Health[30].
[29]Exhibits 3 and G – Dr Ugo reports that the back had not been mentioned on 4 consultations with him, but knew that Mr Barker went to other clinics as well, and his clinic’s records did contain some information about a referral for MRI of his low b ack by Dr Razif.
[30]Exhibit 1
55 I accept Mr Barker’s explanation that he did not tend to mention his back pain if it was not the purpose of the visit to the doctor, such as for the flu, and also that as he did not want strong medication he did not feel there was much point in mentioning ongoing back pain. Also, he seems to have confined his attended for his back condition to the Dandenong/Heritage clinic, being the original company doctors, at least until after 2009.
56 The defendant argues that the early radiology – of May 2005 - reported “nothing alarming”, that even after some disc pathology was found on MRI, Mr Razif and Mr Timms each saw no need to set up ongoing reviews, and that even the latest MRI of early 2013 (if one disregards Mr Scofield’s interpretation disagreeing with the radiologist’s report), shows no major lumbar spinal condition that would warrant significant medical let alone surgical intervention. I accept that the pathology shown on scans, while regarded by most doctors as consistent with his complaints of symptoms is not of the severity to prompt surgical or other invasive treatment. However, this argument overlooks that the test for a “serious injury” is not as to the seriousness of the medical condition that constitutes the compensable injury, but of the consequences of the injury to the plaintiff.
57 Mr Stanley also argues that I should look at the employment duties that the plaintiff has been able to sustain since the injury, in various security jobs, and also that he was willing to undertake jobs as a storeman at Woolworths, delivering furniture, and driving deliveries of caravan components, and infer from these that Mr Barker himself did not feel that his back pain was bad enough to restrict him from undertaking those jobs at those times. Although I take his willingness to undertake delivery driving jobs and in particular sustaining one with his current employer for about seven or eight months as reflecting not too much hesitancy about sitting for sustained periods, I am satisfied that it was his determination to try to earn a living that motivated him to try those jobs. I find that both the Woolworths job and the furniture delivery aggravated his back symptoms so significantly that within less than a month at each he recognised that he could not cope with those duties, and looked for alternative jobs.
58 As urged by the defendant, I have taken into account Mr Barker’s retained capacities, to put into context or inform the extent of the consequences of his injury to him[31]. He has shown that he is still able to work and does so now full-time. He is still able to go about his life generally, even if he modifies some activities. He is still able to spend time with his daughters on alternate weekends, including taking them to the park even if he cannot engage as actively physically with them as he would like, such as bike riding.
[31]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at para [27]
59 I am satisfied that on 13 May 2005 the plaintiff felt onset of severe pain in his lower back and also pain referred down both legs. This required medication to assist its relief, and also physiotherapy, and that although his symptoms were alleviated to a significant degree within a month or so, he continued to suffer low back pain with intermittent referral down his legs, and that it has never fully resolved.
60 I am satisfied that he has also suffered exacerbations of his symptoms from time to time and that these are likely to recur. I find that there was a significant but temporary increase of symptoms in approximately August 2006 while he was working at storeman’s duties. There were more significant exacerbations in February 2009 and October 2010, each while engaged in alternative employment duties. In both of those exacerbations, the plaintiff, whom I assess to be a sensible and relatively stoic man who was doing his best to adjust his life so that he could continue to work with his back injury, felt pain bad and worrying enough to attend at emergency departments of hospitals for medical attention. After the February 2009 exacerbation he needed crutches to support his walking and standing, albeit not constantly but for support over at least two weeks[32]. He needed strong painkilling medication – Endone – and although that was not taken for more than a month or so, I accept that he is a man who does not wish to take strong medication but has used over-the-counter medication, including Panadol Osteo, to help control ongoing pain. While formal physiotherapy sessions were for limited periods, the medical opinion was that they would be of assistance to help him resume functioning in his activities, and he has continued to do the exercises himself[33]. He wears a back support to limit increases in pain with movement.
[32]Still being used when attending physiotherapist.
[33]It was Mr Schofield’s view that back extension exercises would aggravate his pain, but it is not clear that Mr Barker was told that.
61 I find that Mr Barker has suffered ongoing low back pain, varying in degree, but that usually increases over the course of a day at work. It is aggravated by prolonged standing, sitting, walking for more than 10 to 15 minutes, or, if he is unwise enough to do so, lifting of weights or other activities that jolt his back. I accept that back pain interferes with his sleep, but can make no finding about how often that occurs. I find that at times he also experiences pain down both legs, sometimes numbness, and on occasions from his buttocks into his groin. When particularly bad he has found himself limping. I accept that his injury has caused him to modify various activities, limits how long or far he can walk, or drive. I accept that at times he feels frustrated and at times overwhelmed by the impact of his back injury on his life.
62 I accept that it has led to him minimising the housework or house maintenance work in which he engages. He claims that his inability to do his share of household tasks strained a shared residence relationship. I accept that that may have contributed to the ending of that arrangement, but do not find that his living in his parents’ home is a result of his injury, because he was living there at the time of the injury. I accept however, that the fact that he leaves all housework to his parents makes him feel that he is not contributing.
63 He says that he feels limited in activities he can do with his daughters, such as bike-riding, and feels that this limits his ability to interact physically with them. Obviously his ongoing relationship with his daughters, who live with their mother, is significant in his life. I accept that he feels his ability to interact physically with them inhibits his relationship with them, but for daughters who have not lived with him since they were very young, as they grow older those types of activities may well have decreased in any event. He is still obviously able to see them fortnightly and spend that access time with them.
64 Also of relevance to his pain and suffering is the overall effect of his injury on his future employment flexibility and in particular employability. Except for Mr Marshall, all other medical opinion is to the effect that he should not return to his pre-injury duties or any other jobs requiring significant physical exertion in the way of bending, standing, sitting or heavy lifting. As Mr Marshall, who saw him only the once in April 2009, seems to have based his opinion on the plaintiff’s own account that his pain had substantially improved and that he was wanting to return to work, and by two months later Mr Barker was telling Mr Timms of increased pain, and also reported ongoing symptoms on all subsequent medico-legal examinations, which have been accepted as genuine by those experienced specialists, I regard Mr Marshall’s opinion as being formed of Mr Barker on a good day but having limited ongoing application.
65 My impression of the plaintiff in court, and from his employment record, is of a man determined and motivated to persevere in seeking employment, to be able to earn a living to support himself, and with obligations towards his two daughters. Notwithstanding that he has in fact returned to security work more than once since his injury, being what he had done for most of his working life before moving to the employment in which he was injured, he has suffered further injuries in that work, and most of the recommendations of doctors would not be consistent with returning to security work if it involves crowd control or might require him to physically restrain difficult patrons. He has undergone no formal retraining although it was considered desirable by all doctors who assessed him in 2005.
66 He is, fortunately, now in full-time employment of a suitable nature for his condition because it is essentially of an office nature, but allows him to move between sitting, standing and changing positions and posture, and even allows him to lie down to relieve back pain if he needs to do so. He has an accommodating and supportive employer, which seems to accept his back limitations, he having suffered a significant exacerbation of them in its employ while on delivery duties. Nevertheless, he says, and I accept, that he has been worried, and lives with an ongoing level of concern about whether he will be able to keep working, and in particular, if he loses the current job, whether he will be able to obtain alternative employment with which he can cope without causing increased back and leg symptoms or the risk of more severe exacerbations of his lumbar injury. I regard as significant to a man still in his 30s, with no formal training in lighter duties, to have permanently diminished employment options[34], and accept that it is an ongoing worry to him.
[34]Haden Engineering v McKinnon [2010] VSCA 69
67 I am satisfied that the ongoing consequences outlined, of constant back pain albeit of varying severity, with intermittent symptoms in his legs, limitations on activities, and the concern about limits on his employment options were he to lose his present job, are likely continue for the foreseeable future, and in that sense are to be regarded as permanent.
68 In my view, taking all of these matters into account, the consequences of his lumbar spine injury to Mr Barker can fairly be described as more than significant or marked and at least very considerable, when considered in comparison with other possible cases of impairment.
Conclusion
69 I am satisfied that in the course of his employment with the defendant in May 2005 the plaintiff suffered injury to his lumbar spine by way of an aggravation of pre-existing degenerative disc disease which was previously asymptomatic, and that the consequences of that injury satisfy the definition of a serious injury. Accordingly, I propose to grant him leave to bring proceedings for damages for pain and suffering in respect of that injury.
CI – 12-00074
Barker v Addforce Personnel Service Pty Ltd
Schedule of Exhibits
| Number and Identifying Mark on Exhibit | Short Description of Exhibit | Court Book Ref | Tendered by |
| A | Affidavits of the Plaintiff made 7/09/2011 and 23/01/2013 | PCB 19-30 | Plaintiff |
| B | MRI scan report of spine dated 06/09/2005; MRI scan report of lmbosacral spine dated 16/06/2009; CT scan report of lumbar spine dated 07/10/2010; x-ray scan report of lumbosacral spine dated 02/11/2012 and MRI scan report of lumbar spine dated 14/01/2013 | PCB 31-36 | Plaintiff |
| C | Report of Ms Patricia Grundy, physiotherapist, dated 19/07/2005 | PCB 37-38 | Plaintiff |
| D | Report of Dr Savitri Fernando dated 17/02/2011 | PCB 39 | Plaintiff |
| E | Report of Ms Kalana Peiris, Physiotherapist, dated 15/03/2011 | PCB 40-42 | Plaintiff |
| F | Reports of Mr Craig Timms dated 12/06/2009 and 14/05/2011 | PCB 43 PCB 44-46 | Plaintiff |
| G | Report of Dr Humphrey Ugo dated 27/05/2011 | PCB 47-51 | Plaintiff |
| H | Reports of Mr Stanley Schofield, orthopaedic surgeon, dated 31/10/2012; 14/11/2012 and 08/02/2013 | PCB 52-57 PCB 58-59 PCB 60-64 | Plaintiff |
| J | Reports of Mr Amiroel Razif dated 15/08/2005; 19/09/2005 ; and 28/11/2005 | PCB 64a PCB 64b PCB 64c-e | Plaintiff |
| K | Report of Mr Rodney Simm, orthopaedic surgeon, dated 20/07/2005 | PCB 64f-64k | Plaintiff |
| L | Report of Mr Brendan Dooley, orthopaedic surgeon, dated 12/07/2011 | PCB 64l-64o | Plaintiff |
| M | Emergency Clinical Notes from Valley Private Hospital dated 07/10/2010 and 11/10/2010 | PCB 64p PCB 64q | Plaintiff |
| N | Content of Clinical File Dr Lai x 3 pages | NA | Plaintiff |
| O | Letter from Gallagher Bassett to Plaintiff’s Solicitor dated 13/07/2011 | PCB 70-77 | Plaintiff |
| P | Multidisciplinary Assessment Report dated 22/09/2005 | PCB 78-84 | Plaintiff |
| Q | Copies of Certificate of Capacity from Defendant Court book dated 22/10/2010 | DCB 37-38 | Plaintiff |
| 1 | Clinical records on Plaintiff from Rowville Health (11 pages) | NA | Defendant |
| 2 | Clinical records on Plaintiff from Heritage Medical Centre (Dandenong) (4 pages) | NA | Defendant |
| 3 | Clinical records on Plaintiff from Casey Super Clinic ( 8 pages) | NA | Defendant |
| 4 | Certificate of Capacity dated 27/10/2010 | DCB 39-40 | Defendant |
| 5 | IPAR initial assessment report dated 12/11/2012 | DCB 52-56 | Defendant |
| 6 | Reports of Mr Michael Dooley dated 12/11/2012 and 19/02/2013 | DCB 59-63 | Defendant |
| 7 | Report Mr Robert Marshall dated 02/04/2009 | NA | Defendant |
| 8 | X-ray of lumbosacral spine dated 13/05/2005 and CT scan of lumbosacral spine dated 25/05/2005 | DCB 64-65 | Defendant |
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