Barrass v Huhtamaki Australia Pty Ltd and VWA
[2013] VCC 92
•22 February 2013
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| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-12-00285
| DARREN LEIGH BARRASS | Plaintiff |
| v | |
| HUHTAMAKI AUSTRALIA PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 December 2012 | |
DATE OF JUDGMENT: | 22 February 2013 | |
CASE MAY BE CITED AS: | Barrass v Huhtamaki Australia Pty Ltd & VWA | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 92 | |
REASONS FOR JUDGMENT
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SUBJECT: ACCIDENT COMPENSATION
CATCHWORDS: Lower back injury – whether pain and suffering consequences are “serious”; prior injury to the lower back – analysis required of the impairment resulting from an aggravation of the prior lower back injury – whether the impairment resulting from the aggravation meets the statutory test for pain and suffering
LEGISLATION: Accident Compensation Act 1985, s134AB(38)(c)
CASES CITED: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Petkovski v Galletti [1994] 1 VR 436; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26.
JUDGMENT: Leave granted to the plaintiff to bring a proceeding at common law pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 to recover damages for injuries for pain and suffering arising out of his employment with the first defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Montgomery with Ms K Moran | Ryan Carlisle Thomas |
| For the Defendants | Ms R Kaye | Minter Ellison |
HIS HONOUR:
Introduction
1 Before the Court is an application brought by Originating Motion filed 23 January 2012 by which the plaintiff applies for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injury suffered by him arising out of the course of his employment with the first defendant.
2 The plaintiff seeks leave to bring such a proceeding for pain and suffering.
3 Mr P Montgomery appeared with Ms K Moran of Counsel for the plaintiff and Ms R Kaye of Counsel appeared for the defendants.
4 The injury suffered by the plaintiff for which leave is sought is an injury to the lower back.
5 The following evidence was adduced during the hearing:
· The plaintiff gave evidence and was cross-examined;
· The plaintiff tendered his Court Book (“PCB”), pages 17 and 66: Exhibit A;
· The plaintiff tendered a letter from Mr Ting, physiotherapist, dated 13 August 2008: Exhibit B;
· The defendants tendered their Court Book (“DCB”), pages 1 - 27: Exhibit 1.
6 The application is brought under the definition of “serious injury” contained ss(37)(a) of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
The Statutory Scheme
7 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that he has a suffered a compensable injury, that is, an injury which he suffered arising out of or in the course of her employment on or after 20 October 1999.
(b) The injury and the impairment must be permanent, that is, permanent in the sense that it is likely to last for the foreseeable future.
(c) Sub-section (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked” and as being as least “very considerable”.
(d) Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(e) In conformity with Barwon Spinners Pty Ltd & Ors v Podolak,[1] I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in ss(38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
[1](2005) 14 VR 622
8 I am required by s134AE of the Act to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
Background
9 The plaintiff was born in 1965. He is now forty-seven years of age. The plaintiff attended school until Year 10, but did not complete Year 10. He is engaged to his long-term partner. He has two adult children and one grandchild aged three years. His partner also has adult children.
10 The plaintiff worked as a truck driver for twenty one years before commencing work with the first defendant in August 2004. He is employed with the first defendant as a storeman and forklift driver. The first defendant is a manufacturer of plastic containers.
The Transport Accident
11 On 14 March 2008, the plaintiff was driving on the Westernport Highway in Lyndhurst. He stopped at an intersection. While he was stopped he was hit from behind by a speeding car. He recalls experiencing pain in his spine. He subsequently attended at the Frankston Hospital.
12 The plaintiff was referred to have a CT scan of his thoraco-lumbar spine, which was taken on 25 March 2008. It demonstrated degenerative changes in the thoraco-lumbar disc space levels with small anterior marginal osteophytes, and there was no fracture demonstrated.
13 The plaintiff attended the Langpark Medical Centre a few days later, and subsequently, attended the clinic on several occasions up until April 2008. The plaintiff was prescribed painkilling medication, and was certified as unfit for work. He was referred to have physiotherapy treatment, which was provided by Mr Ting, physiotherapist.
14 The plaintiff remained off work for five months until August 2008. The plaintiff said that he could have returned to work sooner than he did, but was advised not to by the defendants.
15 The plaintiff continued to have physiotherapy treatment after he returned to work. The reason why he continued having physiotherapy is explained in a letter written by Mr Ting dated 13 August 2008:
“Darren will require ongoing sessions of physiotherapy to ensure that he remains fully functional and fit to carry out his full work duties”[2]
[2]Exhibit B
16 The continuation of physiotherapy creates the impression that the plaintiff had not fully recovered from the injury to his lower back. However, upon his return to work, the plaintiff was apparently fully fit to perform his pre-injury duties. The work duties the plaintiff was required to perform were physically very demanding. They included the lifting and stacking of bags of plastic granules weighing up to 25 kilograms.
17 There is very little medical evidence relevant to the transport accident other than the letter written by Mr Ting and references to the transport accident in the report of Dr Siemieowicz referred to below. The impression I have been left with is that the plaintiff was treated conservatively. Such treatment ameliorated the symptoms of the plaintiff’s lower back pain to the extent that he was able then to return to work.
The Incident and the Plaintiff's Medical Treatment
18 On 3 November 2008, whilst lifting a 25-kilogram bag of plastic granules, the plaintiff experienced pain in his lower back and pain radiating down into his right leg.
19 The plaintiff attended the Langpark Medical Clinic. Initially, the medical treatment he was provided was conservative. His symptoms did not resolve. One of the medical practitioners the plaintiff saw at the Langpark Medical Clinic was Dr Siemieowicz. He provided a report dated 29 November 2010 in which he described the injury to the plaintiff's lower back, and the treatment he provided the plaintiff as follows:
“On the 5/11/2008 he presented with R sciatica after 5 days previously whilst lifting 25 kgs at work
he was treated initially with arrest and NSAIDs
as his condition did not resolve a CT scan of his LS spine was performed this showed degenerative changes, these were noted in a previous CT scan performed in March 2008
with time he has been able to RTW – part time with restricted duties
with time he has unable to RTW - part time with restricted duties
he has attended a spinal surgery who felt no operation was needed
he continues to use analgesia and NSAIDs
he has attended a chronic pain management course
I have not seen him since March 2010 and can make no comment as to his current condition.
his back pain is due to an aggravation of a degenerative condition
his long term prognosis is such that his condition will only slowly get worse.”
20 The plaintiff was referred to have two CT scans following the workplace incident. The first was taken on 17 November 2008. It demonstrated mild degenerative changes of the lower dorsal spine and subtle anterior wedging of T11 and T12. The second was taken on 18 November 2008. It demonstrated mild changes of lumbar spondylosis and a tiny lucency in the facets of the right side at the L5-S1 level.
21 The plaintiff was referred to Mr Xenos, neurosurgeon, by Dr Miezis. I assume Dr Miezis is a colleague of Dr Siemieowicz. He first examined the plaintiff on 18 August 2009 and again on 9 September 2009. Mr Xenos was aware that the plaintiff had suffered an injury to his lower back in the transport accident. The plaintiff does not appear to have informed him of the workplace incident except in the context of the plaintiff informing him that he had suffered episodes of flare-up of lower back pain in his work as a storeman which involved lifting.
22 Mr Xenos referred the plaintiff to have an MRI scan of his lumbar spine, which was taken on 7 September 2009. He interpreted the results of the MRI scan to disclose that the plaintiff was suffering from degenerative disease in his lumbar spine, a minor central L5-S1 disc bulge with no nerve compression or other abnormality. He was of the opinion that the plaintiff was suffering from lumbar spondylosis. He did not believe that the plaintiff would be able to return to his pre-injury employment. He thought that the plaintiff should undergo a pain and rehabilitation program.
23 The plaintiff was provided with a significant amount of treatment by Mr Moar, physiotherapist. It would appear that the plaintiff first saw Mr Moar in late September 2009. The treatment he provided is described in significant detail in four reports dated 14 October 2009, 6 November 2009, 5 February 2010 and 21 September 2012. The plaintiff undertook a functional restoration program under the supervision of Mr Moar in November 2009. He was subsequently reviewed by Mr Moar through 2010 and 2011 for assessment and treatment.
24 In his last report, Mr Moar made it clear that he understood that the plaintiff had suffered an injury to his lower back in a transport accident on 14 March 2008, and then in the workplace incident on 3 November 2008. He referred to the date of the workplace incident as having occurred on 3 July 2008. I assume he meant to describe the workplace incident which occurred on 3 November 2008. In any event, he considered that the plaintiff might have suffered injury to his lower lumbar facet joints or sacroiliac joints, but did not discount that other structures might have been injured, such as low lumbar intervertebral discs. He was of the opinion that the plaintiff did not have a capacity to perform his full pre-injury duties, that he would probably require further medical intervention, and that he was otherwise likely to suffer a significant impact upon his domestic and recreational activities. In the end, he considered the plaintiff's prognosis to be poor.
25 The pain management course referred to by Dr Siemieowicz and Mr Xenos was undertaken by the plaintiff at Nepean Rehabilitation. Dr Shirazi, consultant in rehabilitation medicine, appears to have been responsible for overseeing the plaintiff's pain management. He provided two reports dated 9 February 2010 and 17 November 2010. His reports are not overly edifying. What his reports reveal is that the plaintiff was examined by him on 9 February 2010. An assessment was made of his suitability to undergo a pain management program. He was accepted into a program. It would appear that the plaintiff undertook a pain management program which comprised physiotherapy and occupational therapy.
26 Dr Shirazi was ultimately of the opinion that the plaintiff was suffering from chronic pain and would require ongoing treatment. That treatment was to comprise physiotherapy and self-directed therapy for the purpose of the plaintiff maintaining a range of movement and managing his pain. He considered that the plaintiff's lower back injury would fluctuate into the future, and that he would require modification of his work duties. It would appear that Dr Shirazi provided the plaintiff with WorkCover certificates consistent with that opinion.
27 The plaintiff did not see Dr Siemieowicz after March 2010. However, he saw Dr Campbell, who is a colleague of Dr Siemieowicz. Dr Campbell provided a report dated 23 June 2012 in which he described the injury to the plaintiff's lower back, and the treatment he provided the plaintiff as follows:
“1Diagnosis: Chronic Pain, Sciatica
2Mr Barrass is unfit for pre-injury duties for the foreseeable future due to the physical injury sustained.
3Incapacity for pre-injury duties is likely to be permanent due to the physical injuries sustained.
4The physical injuries alone restrict social, domestic and recreational activities due to chronic pain and reduced physical capacity.
5Further pain management is required including, but not limited to, physiotherapy and medications. Specialist care may be indicated in the future.
6The prognosis is for permanent impairment.”
28 At present, the plaintiff is prescribed Targin, Endep and Panadeine Forte by Dr Campbell for pain relief. The plaintiff was having physiotherapy treatment on a weekly basis from Mr Moar until about August 2011. The plaintiff said that the physiotherapy treatment ceased because Mr Moar did not believe that the treatment was beneficial to the plaintiff and he suggested that he participate in another pain management course. However, that is inconsistent with the opinion of Dr Campbell that the plaintiff requires pain management, physiotherapy, medication, and perhaps referral back to a specialist in spinal care.
The Medico-Legal Opinions
29 The plaintiff was examined by Mr Kossmann, orthopaedic surgeon, on a medico-legal basis in October 2012. Mr Kossmann was of the opinion that the plaintiff was suffering back pain with signs of sciatica. He did not rule out surgery for the plaintiff, but said the chances that the plaintiff would require surgery were very remote. In relation to the plaintiff's future, he said:
“Mr Barrass is continuing therapy in the form of painkillers and physiotherapy once a week. It is most likely Mr Barrass will experience back pain for the rest of his life.”
30 In relation to the plaintiff's capacity for work, Mr Kossmann said:
“Mr Barrass is working 38 hours per week on light duties, which seems to be adequate due to his ongoing pain issues, I doubt that he will be able to increase his workload. There is a substantial chance that he may never return to his full duties and that he may have to work on light duties for the rest of his life.”
31 Mr Dooley, orthopaedic surgeon, examined the plaintiff on 21 August 2012 on a medico-legal basis. Mr Dooley’s diagnosis of the plaintiff's workplace injury is:
“Based on the history presented to me, I believe that Mr Barrass further aggravated his lumber spine degeneration during the course of his work. His ongoing low back pain, buttock pain and some intermittent lower limb pain is consistent with symptomatic degenerative disc disease.”
32 He expressed a similar opinion to Mr Kossmann regarding the plaintiff's capacity to work. He said that the plaintiff would not be able to carry out regular heavy physical work or engage in active impact leisure pursuits such as running, and otherwise it was imperative that he remained at work in a “suitable capacity”.
33 The plaintiff was also examined by Dr Kostos, rheumatologist, on 2 March 2011, and Dr Baker, occupational physician, on 23 October 2009. Dr Kostos’ opinion is of marginal relevance given that he found it difficult to make a diagnosis, unlike all the other medical practitioners who examined the plaintiff, but he did conclude that the plaintiff suffered an injury to which his employment materially contributed. Dr Baker's opinion is likewise of marginal relevance, although, unlike Dr Kostos, he considered that the transport accident was the initiator of the injury suffered by the plaintiff which subsequently settled down and was aggravated by the workplace incident. He found some difficulty in determining the cause the plaintiff's lower back pain, but considered that it might be discogenic, all related to local facetal changes on the right side.
The Issues
34 Ms Kaye conceded in the course of the proceeding that the plaintiff had suffered a compensable injury. She submitted that the issues could conveniently be summarised as follows:
· That the plaintiff’s pain and suffering consequences, irrespective of cause, do not meet the statutory test. If I found against the defendants, then I must consider whether the workplace incident aggravated the plaintiff's pre-existing injury caused by the transport accident consistently with the principle enunciated in Petkovskiv Galletti.[3]
· Further, whether the plaintiff suffered a secondary psychiatric injury which was contributing to the consequences which the plaintiff claimed arose from the impairment of the function of his lower back.
[3][1994] 1 VR 436
An Aggravation?
35 Ms Kaye submitted that I should not be satisfied that the aggravation of the pre-existing injury to the plaintiff's lower back meets the test enunciated in Petkovski v Galletti[4] that the aggravation itself must comprise a serious injury.
[4]supra
36 There can be no doubt that the plaintiff suffered an injury to his lower back in the transport accident which required treatment and which was disabling. However, there can also be no doubt that the plaintiff made a level of recovery which was sufficient to enable him to return to heavy work, and indeed, the heavy work which he was performing at the time when the workplace incident occurred.
37 Upon the plaintiff's return to work, his medical treatment had all but ceased save for physiotherapy, which the plaintiff had on the advice of Mr Tin. He felt that it was worth the plaintiff's while having physiotherapy treatment to return him to full function. The plaintiff said that despite having active treatment, he considered he was fit enough to return to work earlier than he did.
38 The preponderance of the medical evidence supports the conclusion that the plaintiff suffered a significant aggravation as a result of the heavy work he was performing when the workplace incident occurred. Furthermore, the preponderance of medical evidence supports the conclusion that the plaintiff has suffered a permanent impairment of the function of his lower back. Such was not contested by Ms Kaye.
39 The question remains whether the consequences of an aggravation meet the statutory test.
40 I find that the aggravation was so significant in its consequences to the plaintiff that it easily satisfies the statutory test. My reasons for reaching such conclusion are as follows:
· The plaintiff was capable of returning to work, and undertaking heavy work, and indeed, unrestricted work, and by inference he was able to undertake all of his former social, domestic and recreational activities in a similarly unrestricted manner.
· Subsequently, however, he has suffered and continues to suffer pain in his lower back and pain in his right leg. The preponderance of the medical evidence is that the plaintiff will probably experience that level of pain permanently.
· The plaintiff now must resort to the use of significant quantities of prescription medication to ameliorate the nature and extent of the pain he experiences daily.
· Although the plaintiff has undergone a significant regime of treatment, it is nonetheless the opinion of Dr Campbell that the plaintiff requires more treatment of a more vigorous kind in the form of pain management, physiotherapy and the prescription of medication. It is hardly an optimistic picture for the plaintiff in terms of the necessity for treatment.
· The plaintiff was absent from his employment with the first defendant until late November 2008, when he returned to work on light duties. Dr Campbell has certified the plaintiff as being fit for light duties only since that time. It would appear likely that the plaintiff will remain unfit for full duties permanently.
· Although the plaintiff is coping with his present duties, he suffers an increase in pain if he sits or stands for too long. The jolting and jarring associated with driving a forklift aggravates the pain, and I assume by that the plaintiff means that on those occasions he suffers increasing pain.
· The plaintiff, when not working, has difficulty sitting for too long, and in particular, he referred to sitting in the car for more than an hour which results in an increase in his lower back pain. He is rarely able to sleep for more than four hours per night. He often gets up and takes a painkiller at night in order to ameliorate the pain in order to get back to sleep.
· The plaintiff's capacity to go camping, engage in building programs around his home and otherwise engage in general home duties has been significantly restricted. He is restricted in his capacity to play with his three-year-old grandchild.
41 I accept the plaintiff's evidence that he suffers all of these consequences which have arisen as a result of the aggravation of his pre-existing lower back condition. I am fortified in accepting his evidence regarding the consequences of the aggravation because of the evidence of the plaintiff's fiancée, Pauline Susan Minehan, who swore an affidavit on 16 July 2012 verifying the activities which the plaintiff either cannot do or has difficulty doing. A work colleague, Samantha Lea Fairweather, swore an affidavit on 19 July 2012 verifying that the plaintiff is working on light duties and is cautious about how he undertakes those duties, presumably to protect his lower back.
42 In Haden Engineering Pty Ltd v McKinnon [5] and Sutton v Laminex Group Pty Limited,[6] the Court of Appeal considered that the formula to follow in determining whether the pain and suffering consequences are serious necessitates considering not only what the plaintiff says about the pain in evidence and to medical practitioners, but also what the plaintiff did about the pain; that is, medication, rest, seeking medical treatment, as well is what the doctors say about the extent and intensity of the plaintiff's pain and what the objective evidence shows about the disabling effect of the pain.[7] I have followed that formula in applying my mind to the evidence of the plaintiff and the medical evidence.
[5](2010) 31 VR 1
[6](2011) 31 VR 100
[7]Haden at 4-5, and also in Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26 at paragraph 63
43 The medical evidence does not disclose any basis upon which there is a need for any so-called disentangling. The plaintiff might have some measure of emotional or secondary psychiatric reaction, but it does not obscure my capacity to clearly understand the nature and extent of the physical injury and the consequences flowing from that injury.
Conclusion
44 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to s134AB(16)(b) of the Act to recover damages for injuries for pain and suffering arising out of his employment with the first defendant.
45 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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