Barsoum v Alpha Flight Services Pty Ltd and VWA
[2012] VCC 1321
•21 August 2012 (Revised)
| 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-11-05764
| NABIL BARSOUM | Plaintiff |
| v | |
| ALPHA FLIGHT SERVICES PTY LTD | First Defendant |
| and | |
| VICTORIAN WORK COVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 and 10 August 2012 | |
DATE OF JUDGMENT: | 21 August 2012 (Revised) | |
CASE MAY BE CITED AS: | Barsoum v Alpha Flight Services Pty Ltd & VWA | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1321 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Injury to lower spine – pre-existing back complaints – pain and suffering and economic loss
LEGISLATION CITED – Accident Compensation Act 1985 s134AB
JUDGMENT – Leave to the plaintiff to issue proceedings at common law.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G K Coldwell | Slater & Gordon Ltd |
| For the Defendants | Mr R H Stanley | Thomsons Lawyers |
HIS HONOUR:
Preliminary
1 The plaintiff alleges he suffered injury to his lower spine in the course of his employment with the first defendant in early 2008 and in particular, in an incident on 16 December 2008. On that day, he was lifting heavy trays or boxes containing food into an aircraft and felt a sharp pain in his back. He has had a range of treatment from that time through to the present, and has been examined by a number of specialists. He claims that, as a result of injury, his recreational, domestic and work activities have been significantly affected. He returned to work on restricted duties, and currently works seven and a half hours per week over three days.
2 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of the plaintiff’s employment with the first defendant.
3 The body function said to be lost or impaired is the lumbar spine. The application is thus brought under sub-s(a) of the definition of serious injury contained in s134AB(37) of the Act, and leave is sought in respect of pain and suffering and loss of earning capacity.
4 The plaintiff was the only witness called to give evidence and be cross-examined. In addition, two affidavits of the plaintiff, various medical and radiology reports, claim forms and certificates were tendered into evidence. I have read all the tendered material. I shall not refer to all of this material in the course of this judgment but rather those reports, opinions and other material which appears to me to be of most relevance in determining the issues in dispute. I shall not refer to all of the evidence of the plaintiff, but rather those parts of his evidence which I have relied upon in coming to the conclusions referred to.
5 The statutory scheme set forth in the Act which prescribes and regulates applications of this nature is well known and it is unnecessary for me to revisit the various relevant sections.
Relevant Background
6 The plaintiff is now sixty-two years of age and is married with four children. He was born in Lebanon and came to Australia in 1969 at age nineteen. Upon arrival, he studied English at night. He has had many jobs in Australia, commencing as a fitter and turner and toolmaker over a number of years. He also did office work and then was involved in the management of milk bars and cafés over a period of approximately thirteen years. His previous employment was in partnership in a café in Werribee until approximately 2000. At that time, the lease finished and his then partner had an argument with the shopping centre management. He said in evidence that from that time until he commenced work with the first defendant in January 2007, he was looking for work but unable to find any.
7 According to the clinical notes of his various treating general practitioners, he attended on a number of occasions over the years from 2004 to 2007 with complaints of “osteoarthritis”. I am satisfied from the evidence that was a reference to his back. Those attendances were:
·11 October 2004 – prescription: Celebrex
·4 February 2005 – prescription: Panadeine Forte
·10 April 2006 – prescription: Mobic
·8 June 2007 – in conjunction with eye condition.
8 In the course of cross-examination, the plaintiff said he could not remember any of these attendances nor the prescriptions of medication.
9 In the course of cross-examination, it was put to the plaintiff that, according to his general practitioner’s clinical notes, he entered a “health care plan” for a range of complaints, in particular, a calcaneal spur on his heel, but also for arthritis. Again, the plaintiff could recall little of such a plan, but I am satisfied primarily it was to do with a heel injury. None of the episodes of back pain were detailed to any of the consultant doctors who examined the plaintiff for the purpose of this application.
10 The plaintiff suffered a further incident of low-back pain in June 2008, which occurred in the course of his work duties. He attended his general practitioner and was referred for a CT scan of the lumbar spine which, at the L3-4 level, showed a broad-based disc bulge which compromised the exiting L3 nerve root. He accepted at that time he had pain radiating into his right leg.
11 In September 2008, the plaintiff had a fall at work and suffered further back pain.
12 It was put to the plaintiff in the course of cross-examination, that in fact he had difficulties with his back over the years, going back to 2004, or even earlier, with various aggravating incidents from time to time. The subsequent episode of pain in December 2008, it was suggested, was no more than a further modest aggravating incident. The plaintiff denied this, and said that he had no recollection of any of the incidents of back pain up until June 2008 and he had no difficulties with his back throughout the course of his employment with the first defendant. He said the pain after the December incident was far worse than the pain he had suffered before then.
13 The plaintiff said he was able to carry out heavy work without difficulty, and was a respected and hardworking employee. He was able to carry out a range of domestic and recreational activities without difficulty, including mowing the lawn, vacuuming and running. He said that after December 2008 and his lower back injury, he put on a lot of weight. Prior to the incident, he was also able to undertake handyman maintenance work, including servicing his car. He said that generally his health was good before December 2008 and in particular, he had no difficulties with his back.
The Injury and its Consequences
14 On 16 December 2008, the plaintiff was lifting trays or boxes into a plane. He said the task was physically demanding, and he was required to lift the units, weighing in excess of 15 kilograms, while twisting his body and sometimes into cramped spaces. He felt a twinge in his back and, although he continued to work for the rest of that day, sought treatment from his general practitioner the next day. He complained of low-back pain and pain radiating into his right leg. Mobic was prescribed. He was given one day off work. He said he went to his doctor on a number of days during that week, and on 22 December 2008, the pain became very severe and he was taken by ambulance to the Sunshine Hospital and was an inpatient for approximately seven days. An MRI scan of his lower back of 24 December 2008[1] showed a shallow broad-based disc bulge at L3-4, causing central canal stenosis. The exiting L3 nerve root was affected.[2]
[1]Plaintiff’s Court Book (“PCB”) 38
[2]The findings of this MRI scan are very similar to that of the CT scan taken in June 2008.
15 He was away from full time duties from 16 December 2008. A WorkCover Claim Form was lodged on 5 January 2009 and he has been in receipt of various benefits since that time. From that time to the present, he has had a range of treatment, including from an occupational therapist, and regular physiotherapy. He has taken a range of pain-relieving and anti-inflammatory medication, and at the present time takes Brufen, one tablet per day; Tramal, one to two tablets when the pain is severe, which is once or twice a month; and Endep, three to four times a week.
16 He was referred by his general practitioner to Mr Paul D’Urso, neurosurgeon, in February 2009. On examination, he noted right quadriceps wasting and sensory disturbance affecting the right knee. He noted the disc prolapse at L3-4 with nerve root impingement. Mr D’Urso considered that it was likely the plaintiff’s employment had contributed to the development of the disc prolapse. He recommended a CT-guided injection of anaesthetic and steroid, but the plaintiff has refused to have that treatment. Mr D’Urso thought that surgery was a possibility. The plaintiff has not returned to see Mr D’Urso since 2009.
17 According to a current Certificate of Capacity,[3] the plaintiff’s general practitioner has certified him as fit for alternative duties, working two-and-a-half hours a day, three days a week with no lifting of greater than 5 kilograms, no repetitive bending, pushing, pulling or twisting. He returned to work on restricted duties, working various hours. Because of his ongoing back pain, he has had absences from work on a regular basis.[4] In evidence, he said that he was unable to work any more hours than he was at present and was physically exhausted, even after two-and-a-half hours’ work.
[3]PCB 84a
[4]See Schedule of Absences PCB 109
18 I shall not refer to all of the opinions in the treating and consultant doctors’ reports. There is largely uniformity in medical opinions as to the plaintiff’s condition. I accept that he had a pre-existing age-related degenerative condition in his spine, in particular, at the L3-4 level. It is clear that his work, in particular, over 2008, and most specially, on 16 December 2008, caused an aggravation of that underlying condition. All of the medical opinion is to the effect that the plaintiff would be unable to return to his pre-injury duties. There is no doctor suggesting that the plaintiff has the capacity to work any more hours than he is at present.
19 According to the plaintiff’s evidence and his affidavits, he suffers constant ongoing back pain with referred pain into his right leg. He is restricted in his general movements, and is unable to sit or stand for prolonged periods. He says that he finds sleep difficult, and his personal relationship with his wife has been affected. He is no longer able to carry out the heavier housework, or outside activities, nor able to undertake handyman and maintenance work which he previously enjoyed.
The Plaintiff’s Credibility
20 I had the opportunity to observe the plaintiff in the course of cross-examination. In my view, he presented as an honest person giving a fair account of his injury, and the consequences which have affected his life.
21 In submissions, Mr Stanley, on behalf of the defendants, made an attack upon the plaintiff’s credit. He raised the following matters:
·He said it was significant that the plaintiff had failed to advise doctors of his previous episodes of back pain over the years 2004 to 2007, and only made passing mention of the incident of June 2008.
·Further, said Mr Stanley, the plaintiff had not mentioned that he was the subject of a “health care plan” by his treating doctor which, although he acknowledged was related to a number of conditions, did include osteoarthritis.
·The plaintiff, when questioned in the course of cross-examination about his prior back injury, said that he was unable to recall these matters when put to him. Mr Stanley submitted that the plaintiff must have known of these incidents and that his answers were evasive and disingenuous.
·The plaintiff claimed to have suffered an increase of weight because of inactivity since injury. That stood in contrast with the fact that his weight in the years after the incident was almost the same as had been recorded by his doctor, before injury.
·The plaintiff’s claim in his affidavit that he was unable to run as a result of his injury had to be seen in the context that he rarely ran before injury and at best would jog lightly from time to time.
22 The principal issue as to the plaintiff’s credibility was that he had failed to provide an accurate history to the doctors. However, in my view, the incidents of low-back pain or “osteoarthritis” were minor and of such little significance, that it is believable that the plaintiff could not recall them. On no occasion was he referred for investigative scans, sent to a specialist, nor did he have time off work, save in respect of the incident of June 2008. Of particular significance is that he was able to carry out full-time work in a heavy manual job from 2007 until December 2008 without difficulty.
23 The other issues as to the plaintiff’s credit raised by Mr Stanley are, in my opinion, minor. I accept that his claim to an increase of weight as a result of injury was not correct, and I accept that the impression conveyed by his affidavit that he ran was an overstatement of his involvement in that activity. However, these are minor matters and do not reflect significantly upon the plaintiff’s credibility.
24 I accept the plaintiff as an honest witness and accept the claims in his affidavit and in the histories to the various medical practitioners of the effect upon him of his lower back injury.
Conclusions
25 It is accepted that, to the financial year ended 2008, the plaintiff received a gross salary of $49,352. In fact, in the months before injury, he was earning approximately $1,000 gross per week. I am satisfied that, notwithstanding there was a considerable absence from employment over the years from 2000 to 2007, that, for the purpose of establishing the plaintiff’s “without injury” earning capacity, that it was in the order of $1,000 per week.
26 Mr Stanley submitted that there were gaps in the plaintiff’s evidence, in particular, there was no report from an earlier treating general practitioner, Dr El Khoury, who the plaintiff saw on a few occasions in 2004 and 2005, and no affidavit material from any family member who could speak of the effect upon the plaintiff of his prior back problems. I do not see any great significance in such reports and affidavits not being provided. Generally, in my view, affidavits from family members do not provide very much assistance to a Court in determining these matters, and the incidents in respect of which the plaintiff saw Dr El Khoury are not, as I have stated, matters of any particular significance.
27 The thrust of the defendants’ argument is that I should have significant reservations about the plaintiff’s credibility, and, given the prior episodes of back pain, view the injury of December 2008 as being no more than a minor aggravating factor which, looked at in isolation, did not meet the requirements of the Act that the consequences reach the “very considerable” level.
28 Further, Mr Stanley submitted that, given the plaintiff had improved, at least to some extent, the injury was not permanent. However, in my view, the injury and its consequences are permanent. There is no doctor at the present time offering any form of treatment, which is likely to significantly alleviate the plaintiff’s problems.
29 I accept the plaintiff has ongoing significant low-back pain which commenced from the incident of December 2008, and has been far more significant than the pain emanating from any other incident. Further, the plaintiff has referred pain into his right leg, consistent with the compression of the L3 nerve root, as shown on the radiology. That pain requires him to take considerable quantities of pain-relieving and anti-inflammatory medication and significantly restricts him in the range of domestic and recreational activities to which I have referred.
30 In my view, the plaintiff’s creditability is enhanced by the fact that he has remained working, albeit now on heavily reduced hours and upon lighter duties. I accept his evidence that he would increase his hours if he could, but that he simply does not have the physical capability to do so. The hours he currently works are only a very small proportion of the full working week he undertook before injury.
31 In these circumstances, I am satisfied that the consequences of the plaintiff’s injuries do reach the very considerable level in respect of pain and suffering. I am further satisfied that the plaintiff cannot work beyond his present seven or eight hours’ work a week. As such, he has suffered a loss of earning capacity well in excess of 40 per cent as prescribed by the legislation. The plaintiff’s claim succeeds.
32 I shall make appropriate orders.
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