Bautista v Rudkin-Wiley Pty Ltd
[2010] VCC 789
•23 June 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-09-01498
| MANSUETO BAUTISTA | Plaintiff |
| v | |
| RUDKIN-WILEY PTY LTD | Defendant |
| (ACN 059 561 714) |
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| JUDGE: | HER HONOUR JUDGE KINGS |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 25 and 26 May 2010 |
| DATE OF JUDGMENT: | 23 June 2010 |
| CASE MAY BE CITED AS: | Bautista v Rudkin-Wiley Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0789 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Application under s.134AB Accident Compensation Act 1985 – serious injury claimed for permanent serious impairment to the functioning of the plaintiff’s lumbar spine – pain and suffering only – application dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr I R Ferring | Ryan Carlisle Thomas |
| For the Defendant | Mr T J Ryan | Thomson Playford Cutlers |
| HER HONOUR: |
1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the defendant on 14 July 2006.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s.134AB(37) of the Act. There, “serious” is defined as meaning:
“(a) permanent serious impairment or loss of body function.”
4 The body function relied upon in this application is the lumbar spine.
5 The plaintiff relied upon three affidavits and was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant Legal Principles
6 The Court must not give leave unless it is satisfied on the balance of probabilities that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s.134AB(37) of the Act.[1]
[1] S.134AB(19)(a) of the Act
7 In order to succeed, the plaintiff must prove on the balance of probabilities
that:
(a)
“the injury” suffered by him arose out of, or in the course of, or due to the nature of, his employment with the defendant on or after 20 October 1999.[2]
(b)
the impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future;[3]
(c) under s.134AB(38)(b) of the Act, the term “serious” is to be: [2] S.134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph [11]
[3] Barwon Spinners (op cit) at paragraph 33
“… satisfied by reference to the consequences to the worker of any impairment or loss of body function … with respect to pain and suffering … when judged by comparison with other cases in the range of possible impairments or losses of a body function.”
(d)
under s.134AB(38)(c) of the Act, an impairment or loss of body function, in this case, the pain and suffering shall not be held to be serious unless the consequence, when judged by comparison with other cases is:
“fairly described as being more than significant or marked and as
being at least very considerable.”
8 The test for “severe” as set out in paragraph (b) of s.134AB(38) of the Act is sometimes referred to as the “narrative test”.
9 In determining the application, the Court:
(a)
must make the assessment of “serious injury” at the time the application is heard.[4]
(b)
notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[5]
[4] Section 134AB(38)(j) of the Act
[5] see Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242, at paragraph 67
The Issue
10 Counsel for the defendant informed the Court that the plaintiff had provided a number of versions as to how the injury occurred and this went to the significance of the injury. Further, there is an issue as to whether or not the plaintiff had any back problem prior to 2006. Ultimately, the issue was whether the consequences satisfy the requirements of the Act and amount to a “serious injury”.
The Plaintiff’s Evidence
11 In his first affidavit sworn 3 December 2008, the plaintiff deposes that:
•
He was born on 19 February 1950 in the Philippines. He completed a BA in Commerce in the Philippines and then worked as an auditor for approximately five years. In 1984, he came to Australia and worked as a labourer for Peters Ice Creams, Toyota and Laminex. He travelled to the United States of America and lived there between 1992 and 1996. He then went back to the Philippines, before returning to Australia and obtaining employment with the defendant in May 2002 as a labourer.
•
The defendant operated a business known as ‘Thermal Bay Composite’, which manufactures fibreglass moulds used to make components for caravans and fire trucks. His duties involved heavy lifting, bending and carrying. He normally worked from 5.50 am to 3.30 pm and regularly completed overtime.
•
On 14 July 2006, he was cleaning a large mould on the floor, which required him to bend and reach inside it and across it to clean the surface. This process takes around 15 to 20 minutes and you are bent over working in awkward positions for prolonged periods of time. When straightening after cleaning this particular mould, he felt a severe pain in his back and fell to the floor, landing on his buttocks. He rested for a short period of time before getting up to continue working. His back pain increased and after a few days he went to see his doctor. He underwent various tests, including a CT scan and an MRI scan.
• At the time of the accident, he was working regular hours and overtime. •
Following the accident, he found it difficult to continue his employment. His back pain became increasingly worse and he struggled with bending, standing and sitting and could not drive a car for longer than 10 to 20 minutes without increased back pain.
•
Prior to hurting his back in July 2006, he experienced some back strain at work, but this strain did not prevent him from working.
•
Prior to the accident, he was a keen gardener; he enjoyed playing with his two young children; he cleaned and maintained his house and he had sexual relations with his partner. These activities are now restricted because of his back pain. Additionally, he used to go running regularly, which is no longer possible.
•
Currently, he is working 8 hours per day with the defendant. He can cope with this, but has to be very careful and avoids activities involving heavy items and prolonged bending or lifting. He does not feel he could return to his pre-injury duties. He attempted to return to full-time duties in late 2007, early 2008, but it was too difficult and he was put back onto the restricted hours he is currently working. In December 2007, the factory moved to a new location, with a safer set-up, and he finds it easier to work there compared to the old premises.
•
He has only been able to continue working because of the flexibility offered to him by his current employer. If he were to lose his current job, he is concerned about whether he could find other employment. His Philippine qualifications are not recognised in Australia, therefore, the only positions available to him are labouring positions, and his back injury limits his labouring capacity.
12 In his second affidavit sworn 7 October 2009, the plaintiff deposes that:
•
He has not improved over the last twelve months and feels restricted in all of his day-to-day activities. He has back pain all the time, but can manage it if he is careful. Occasionally, his back pain increases and he experiences spasms in his back which can last for 10 to 15 minutes.
•
His sleep is affected by his back pain. He is woken up by pain after around three to four hours and then struggles to get back to sleep again. He finds prolonged sitting difficult and his driving is restricted to around 20 to 30 minutes, at which time his back pain increases and he has to take a break. He cannot lift more than six to seven kilograms. Playing with his young children, aged three and seven, is restricted. He does not like going out because of the awkward situations his back pain can cause, thus his ability to socialise with friends and family has been restricted. In the last twelve months his back pain has stopped him from going to the movies, going away on weekends, attending church and going fishing.
•
In March 2009, the defendant terminated his employment because he could not perform his pre-injury duties. Before being terminated, he was working normal hours on light duties, and not doing any heavy lifting or repetitive bending. He often had to rest at work and when he got home. Since being terminated, he has been unable to obtain other employment.
13 In his third affidavit sworn 20 March 2010, the plaintiff deposes that:
• His pain remains the same as described in his previous affidavit. • His sleep continues to be disturbed because of his back pain. •
He continues to be restricted in his social, domestic and recreational activities.
•
In February 2010, he commenced a course in aged care. He has found the course difficult and has struggled to sit for long periods and to complete assignments. However, he is determined to continue the course and hopes to complete it in June 2010. He has family members who work in aged care and hopes to obtain employment through their connections. He does not feel he could do heavy work and hopes to get a night shift position, as he believes the work would be lighter. However, he is concerned about how he would cope working day shift in an aged care facility.
The Plaintiff’s Medical Evidence
14 In cross-examination, the plaintiff agreed that he attended Dr Shirzada’s practice for the first time in July 2006. He had visited another practice in Werribee in December 2005 for back pain. In his affidavit, he swore that prior to July 2006, he had some back strain due to the heavy work but had no difficulty with his employment and had not taken any time off work.
15 In a report of 18 October 2006, Dr Deen Shirzada, the plaintiff’s general practitioner, reported that the plaintiff presented at his clinic on 17 July 2006, when he was seen by another doctor at the clinic. Dr Shirzada said that the presenting history was of a lower back pain “on and off” since December 2005. He was told by the plaintiff that at work there was a lot of bending and physical activities.
16 On 19 July 2006, the plaintiff consulted Dr Shirzada and told him that on 18 July 2006, at work, his back pain flared-up. Dr Shirzada said there was no history of specific injury and he provided the plaintiff with analgesics, non- steroidal anti-inflammatory drugs, and suggested he take a few days’ rest. WorkCover certificates were issued for modified duties and Dr Shirzada said that his lower back pain was stable.
17 Dr Shirzada reported that a CT scan was ordered on 1 August 2006 and the report stated:
“L4/L5, L5/S1 facet joint degeneration. No disc protrusion or nerve root
compression.”
18 In October 2006, Dr Shirzada said the plaintiff’s condition was stable whilst on modified duties at work.
19 In May 2007, Dr Shirzada said that despite providing the plaintiff with a referral to Mr Han, neurosurgeon, in August 2006, the plaintiff had not seen Mr Han. A further referral was given to the plaintiff to see Mr Han, but at the date of writing the report, Dr Shirzada had not received any feedback from the specialist. The plaintiff had been seen by a physiotherapist and had been attending a gym program. He had been on modified duties. Despite modified duties and physiotherapy, his lower back pain bothered him on and off.
20 An MRI of the lumbar spine was performed at the request of Dr Han in September 2007. The conclusion was:
“No significant central canal or neural exit foraminal narrowing. No
significant disk prolapse. No cause found for the patient’s symptoms.”
21 In August 2009, Dr Shirzada reported that in December 2008 and January 2009, the plaintiff was working normal duties with few restrictions and that his back condition was stable. He stated that during April to July 2009, the plaintiff was not working, and as a result his back problem was better and the plaintiff did not have a major problem. He was taking analgesics on an ‘as needs basis’. On clinical examination of the lower back there was no significant abnormality found. Dr Shirzada said the plaintiff was suffering from an L4-L5 facet joint degeneration and mild broad-based L5-S1 disc bulge. He said the condition was not expected to become normal and the plaintiff may have some problems with his lower back on and off. Dr Shirzada was not sure as to what extent the plaintiff’s back condition would affect his future employment. In November 2009, he agreed that the plaintiff was not fit for unrestricted pre-injury duties.
22 Dr Shirzada’s clinical records for the period 17 July 2006 to 25 August 2009 were before the Court. It is clear that the plaintiff was a man who regularly attended the doctor. The records disclosed that the plaintiff was seen on a very regular basis until early October 2006 and regularly thereafter. After the beginning of October 2006, the plaintiff was seeing his general practitioner very regularly until February 2007, when he was visiting his general practitioner on a fortnightly basis until the end of April 2007. Visits were between three and four weeks apart until the end of July 2007. During August he saw his general practitioner on four occasions. From the end of August 2007 until the end of April 2008, he visited his general practitioner in respect to his back injury on six occasions. Between May 2008 and 10 August 2009 he visited on twenty-five occasions. The records disclosed no pain radiation; no neurological abnormality found; freedom of movement; walking normally; generally well; tender on L4-5. In 2008, the records disclosed medication was prescribed of Tramal, Mobic, Panadeine Forte and Digesic. However, by mid February 2009, only Digesic was being prescribed. By April 2009 he was telling Dr Shirzada that his back was better and he still needs the medication at night “sometimes”.
23 In July 2008, Mr Kenneth Brearley, orthopaedic surgeon, examined the plaintiff on behalf of his solicitors. Mr Brearley said the plaintiff complained of constant low-back discomfort or pain and pain in the left leg to the calf. The leg pain was intermittent and appeared when his back was particularly bad. His back discomfort was made worse by bending, stooping and lifting, and long periods of walking and standing. He was taking medications of Panadeine Forte at night, Panadol - three or four tablets during the day, and Mobic daily.
24 The plaintiff told Mr Brearley that he had difficulty helping his wife with heavy aspects of the housework, he was unable to go on long walks for exercise and could not jog. He could not garden or mow the lawns, was unable to walk around a shopping centre and could not go for long drives as he was unable to sit for long periods.
25 Mr Brearley viewed the CT of the lumbar spine of August 2006 and the MRI scan taken on 24 September 2007. It was Mr Brearley’s view that the plaintiff had suffered injury to his L5-S1 disc with consequent posterior protrusion of the disc as a result of the intradiscal injury. He considered the impairment was permanent. He said the plaintiff had pain constantly in the low-back which varied in severity and was often discomfort rather than pain. Mr Brearley said there was no objective evidence of radiculopathy but he considered the leg pain would be the result of nerve root irritation as a result of the L5-S1 disc injury and the consequent disc bulge. He considered the plaintiff was fit to continue working 7 hours per day, which he considered was permanent. He said he was not fit to do full-time heavy labouring work. The plaintiff told him he had difficulty driving a manual car, he could not walk for more than twenty minutes, he could sit for about fifteen minutes, he could stand for fifteen minutes and he could carry 7 kilograms.
26 In August 2009, Dr Charles Castle, an occupational health rehabilitation and counselling specialist, examined the plaintiff on behalf of his solicitors. It was Dr Castle’s view that the plaintiff had suffered an aggravation of degenerative change in his lumbar sacral spine, including facet joint arthropathy. The plaintiff suffered a physical impairment, in that he had restricted movement of his lumbosacral spine, which he described as permanent. He described the plaintiff suffering a moderately severe degree of pain. Dr Castle considered the plaintiff had no capacity to undertake his pre-injury employment and that he would be only able to carry 5 kilograms in weight. He said the plaintiff was markedly restricted in his day-to-day activities. The plaintiff was unable to do any domestic tasks, play with his 7 year old son, play billiards or tennis any more, all of which are activities he did prior to his injury.
27 In August 2009, the plaintiff was examined by Mr Stephen Doig, orthopaedic surgeon, on behalf of his solicitors. He considered the plaintiff had suffered an injury at work. He had not seen the CT scan or the MRI report, but had access to other medico-legal reports which referred to them. He diagnosed a chronic low-back strain which was likely to have done damage to the L5-S1 disc. He noted there was no clinical evidence of any neurological involvement. He considered the injury consistent with the injury that the plaintiff described. He considered he was restricted in his social, recreational and domestic activities. He considered the impairment was likely to last into the foreseeable future and that he had not significantly improved over the last two to three years. He said the plaintiff was able to work and the only reason that he was not working was because he had been retrenched. However, he could not work in a heavy physical job, which is what he had been doing at the time of the injury.
28 In May 2007, the plaintiff was examined by Dr Chris Baker, an occupational specialist, for the insurer of the defendant. Dr Baker stated that he visited the work site in May 2007 and was assisted by the owner who said the plaintiff was a steady worker before the injury, who accepted that the plaintiff did have some lower back symptoms, but was of the view that his level of incapacity was not as great as he portrayed. Dr Baker said the plaintiff was capable of undertaking the duties and failure to participate in the Return to Work Plan should be considered unreasonable. He reported that the plaintiff had problems other than his injury, namely gambling and financial difficulties. He considered other factors were impacting on his wellbeing. It was Dr Baker’s view that the plaintiff was suffering with an aggravation of pre-existing asymptomatic degenerative changes with bulging discs and facet joint changes. Dr Baker did not consider the plaintiff capable of undertaking unrestricted pre-injury duties. He said the plaintiff had the capacity to work with restrictions of no repeated bending, opportunity to move about at will and change position, and no lifting, pushing or pulling of weights in excess of 5 kilograms. He considered the plaintiff was capable of undertaking “suitable employment”.
29 The plaintiff did not rely upon a medical report from the neurosurgeon, Mr Han, whom he saw in October 2007. In June 2008, the plaintiff was referred to Mr M Dooley, orthopaedic surgeon, whom he saw in relation to his back.[6] The plaintiff did not rely upon any report from Mr Dooley.
[6] Transcript 77
The Defendant’s Medical Evidence
30 On 5 February 2008, the plaintiff was medically examined by an occupational physician, Dr David Fish, for the insurer of the defendant. Dr Fish said that the plaintiff had seen Mr Han, neurosurgeon, on two occasions, but no surgery was advised. It was Dr Fish’s view that the plaintiff presented with a typical mechanical low-back subsequent to aggravation of lumbar spondylosis with facet joint arthropathy. He said there was no indication of any radiculopathy or loss of motion segment integrity. He said the impairment was permanent.
31 On 9 August 2009, the plaintiff was examined by Mr Rodney Simm, orthopaedic surgeon, on behalf of the solicitors for the defendant. The plaintiff said his symptoms had improved but he had persistent pain which had been present each day since the onset of pain in July of 2006. Mr Simm was unable to establish a definite diagnosis.
32 Mr Simm said:
“The distribution of his pain is suggestive of discogenic pain but I would be reluctant to make a diagnosis of symptomatic lumbar disc pathology when the MRI scan does not report anything more than minor bulging of the L5/S1 lumbar intervertebral disc. Therefore, one is left in this case with the unsatisfactory diagnosis of a non-specific soft tissue condition of the lower back which has been associated with chronic low back pain and referred pain into the left lower limb without clinical signs of radiculopathy.”
33 Mr Simm stated that the exact circumstances surrounding the onset of the plaintiff’s symptoms remained unclear. He said, regardless of the exact circumstances, the plaintiff’s history is that symptoms commenced in the workplace and have not resolved since then. He said, in the absence of a satisfactory physical explanation for ongoing symptoms, it was difficult to express a meaningful opinion as to whether he still has a physical condition of the back that was work-related.
34 Mr Simm said the plaintiff had chronic pain and he expected the condition to persist. However, he felt that the plaintiff did not require formal treatment. He said the plaintiff should take analgesic medication to control symptoms and self-regulate his activities within the limit of his pain.
35 Mr Simm was asked whether the injuries were an aggravation of a pre- existing condition. Mr Simm said:
“There is some evidence for L4/5 and L5/S1 facet joint pathology and aggravation of this pathology as a result of the nature of his work duties could have been the cause for the onset of symptoms. Facet joint pathology is traditionally associated with axial low back pain which is aggravated by back extension. This was not the pattern of symptoms described to me. The minor disc bulging at L5/S1 is such a common finding that in the absence of degenerative annular changes on the MRI scan, I would disregard the reported disc bulge. I would have preferred to have reviewed the MRI scan to determine if in my opinion there were annular changes. I believe the only explanation for the onset of symptoms in the circumstances subscribed [sic] is that he was predisposed to back pain from some underlying condition. An underlying condition has not been satisfactorily identified. His condition has not resolved.”
36 Mr Simm considered the plaintiff’s ongoing back pain had limited his capacity to undertake physical work, but noted that he was able to undertake appropriate modified work duties until he was terminated. He considered he remained incapacitated for pre-injury employment,
37 In July 2009, the plaintiff was medically examined by Mr Robin Williams, orthopaedic surgeon, at the request of the insurer for the defendant. Mr Williams said the plaintiff had a chronic pain syndrome affecting the lumbar region of his back which arose out of his employment. It was his opinion there was a significant non-organic component to his sense of illness and the injury was work-related. He considered the plaintiff had the physical capacity to perform the duties of preparing and waxing moulds. He did not consider he required any physical or medical treatment for his back condition. He considered the plaintiff’s condition had stabilised and that with appropriate management his condition would probably resolve.
38 The defendant relied upon a medical report of Mr Tiew Han, neurosurgeon, the treating surgeon who saw the plaintiff on referral from the plaintiff’s general practitioner, Dr Shirzada, in September and October 2007. In October 2007, the plaintiff complained of intermittent back pain which appeared to have improved since the last time he was seen in September. It was Mr Han’s view that the pain would continue to improve and that the plaintiff did not require surgery. The MRI scan showed no evidence of any disc prolapse and no significant canal stenosis or nerve root impingement. He had not arranged a follow up appointment.
Analysis of the Evidence
39 The plaintiff was an intelligent witness who listened carefully to the questions asked of him. However, on balance, I formed the view that there were inconsistencies in his evidence. There were a number of examples of this which I will now refer to.
40 First, the plaintiff gave a number of different versions of how he injured his back at work. In the WorkCover worker’s claim form signed by the plaintiff on 27 September 2006, in answer to Question 17, the plaintiff stated, “Back hurt whilst in mould”. In answer to Question 18, “How exactly were you injured?” “Motorhome mould.” In answer to Question 19, “Exact location where the injury/condition occurred?” “Factory floor.” In answer to Question 20, “What happened that caused or contributed to your injury/condition?” “Manual handling of mould.”
41 In the plaintiff’s affidavit, sworn 3 December 2008, he said:
“On 14 July 2006 I was carrying out my employment duties. I was cleaning a mould which required me to bend and reach across the mould which was quite large. The mould was on the floor and you have to reach inside it to clean the surface so that it can be re-used. It takes about 15 to 20 minutes to clean the moulds and you are bent over and working in an awkward position for prolonged periods of time. As I straightened up I felt severe pain in my back and I fell to the floor. I landed on my buttocks. It was about 2 to 2.30pm.”
42 The plaintiff provided other versions of how he injured his back to the various doctors who examined him.
43 In cross-examination, the plaintiff said:
“Q: “I will put it this way. How did you come to be injured?--- A: As I was working – as I was cleaning the mould and ah – bending – doing it in a bended way, I – when I got up I slipped and I – that’s where my – the problem I think started. Q: You think that’s when it started?--- A: Yeah, that’s when it started. Q: What did you slip on, do you say?--- A: On the floor. Q: What was the surface of the floor?--- A: Ah, it was slippery. Q: I suggest to you that you have not made any mention to any doctors of slipping on a slippery floor. You have not blamed the slippery floor to any of the doctors you have seen. What do you say about that?--- A: I slipped – I – I – that’s what I have – I – it wasn’t asked to me
whether I slipped.Q: It wasn’t asked of you whether you slipped?--- A: Yeah. Q: When was this that you say that this happened?--- A: Some time in July 2006. Q: Could you be more precise?--- A: Some – I – I think it’s about – it’s about 14 July.”
44 The defendant submitted that the plaintiff’s confusion as to how the injury occurred went to how significant the injury was if he cannot remember the circumstances under which it occurred. I take the view that various versions of how the accident occurred go more to the reliability of the plaintiff’s evidence generally.
45 Secondly, the plaintiff deposed in his second affidavit sworn 7 October 2009:
“In March 2009 my employment was terminated because I could not do
my normal duties.”
46 Yet in cross-examination, the plaintiff agreed that there was a limited amount of overtime in 2008 in comparison with 2005 and 2006, and agreed that he had received a redundancy in excess of $10,000. I accept that the plaintiff was made redundant due to economic conditions.
47 Further, in October 2009, the plaintiff swore that he had not improved over the last twelve months and feels restricted in his day-to-day activities. He has back pain all the time, but can manage if he is careful. Occasionally, his back pain increases and he experiences spasms in his back which can last for ten to fifteen minutes.
48 In his affidavit of 20 March 2010, the plaintiff deposes that his pain is at the level described in his affidavit of 7 October 2009.
49 However, in cross-examination, the plaintiff agreed that in June 2009, he told Dr Shirzada that he was well and stable and his back was better.
50 In August 2009, Dr Shirzada reported that in December 2008 and January 2009, the plaintiff was working normal duties with few restrictions; his condition was stable. That during April to July 2009, the plaintiff was not working and his back problem was better; he did not have a major problem. The plaintiff has not returned to work as he was retrenched. During July and August 2009, the plaintiff saw medico-legal doctors, Dr Castle, Mr Doig, Mr Simm and Mr Williams. The plaintiff was telling them that he was restricted in his domestic, social and recreational activities. In fact, he told Mr Simm his symptoms had improved but he had persistent pain which had been present each day since the onset of pain in July 2006.
51 Video film was shown of the plaintiff. I accept a video is a snapshot in time and that a plaintiff with the injuries the plaintiff described would have days when he is able to do more activities than others. In cross-examination, the plaintiff identified himself in the video. The video depicted the plaintiff moving in an unrestricted manner and without any apparent signs of pain. The plaintiff moved a wheelie bin from the kerbside into the garage, freely. In cross-examination, the plaintiff said that the wheelie bin was empty.
52 The film showed the plaintiff carrying a box from the boot of the car. The plaintiff said the box was not heavy. As there was no evidence to the contrary, I accept the evidence of the plaintiff. But of more significance was the fact that the film showed the plaintiff going to Millers Inn, a pokies venue in Altona North. This was consistent with his evidence in cross-examination, where he agreed that he had had played the pokies for three hours or so, but inconsistent with the fact that he had said he did not like going out because of the awkward situations his back pain caused.
53 On balance, I do have some concerns about the credit of the plaintiff and, accordingly, assess his evidence with extreme caution.
54 The plaintiff deposed to the consequences of his injuries which I have referred to in paragraphs 11, 12 and 13. I note that there was no affidavit material from the plaintiff’s wife or other family members corroborating the consequences to him. This is significant where I have reservations about the credit of the plaintiff.
55 Further, regardless of the exact circumstances surrounding the plaintiff injuring his back, the plaintiff’s history is that his back symptoms commenced in the workplace. This was accepted by the defendant and the medical evidence. I accept that the plaintiff injured his back at work in 2006. While the plaintiff had told Dr Shirzada of the “on and off” back pain since December 2005, I accept that the plaintiff had continued to work until July 2006.
56 The medical evidence is that the plaintiff has a back injury which was work- related. The CT and MRI scans indicate that there is L4-5 and L5-S1 facet joint degeneration. No disc protrusion or nerve root compression was seen.
57 The plaintiff only relied upon one treating doctor, his general practitioner, Dr Shirzada.
58 In respect to the medical evidence, I tend to place greater weight on the treating medical practitioners as generally they have seen the plaintiff over an extensive period and generally on a number of occasions. In this case, Dr Shirzada saw the plaintiff regularly over a number of years as opposed to doctors who have seen the plaintiff for medico-legal purposes on one occasion. It follows that I place considerable reliance upon his evidence.
59 The plaintiff consulted his general practitioner, Dr Shirzada, regularly. Dr Shirzada said the plaintiff’s back was stable and he did not expect the back to become normal, and anticipated that the plaintiff may have some problems on and off with his back. He noted that the plaintiff’s back was better when he was not working. He could not say the extent to which his back would affect his future employment. The records of Dr Shirzada indicate:
“No pain radiation; generally walking normally; freedom of movement; no
neurological abnormality found; tenderness L4-5.”
60 Dr Shirzada’s medial records confirmed that from 2009 the plaintiff was telling his general practitioner he was well and stable, and his back was better but he still needed the medication at night sometimes.
61 The plaintiff was referred to Mr Tiew Han, the treating neurosurgeon, who said the MRI scan showed no evidence of any disc prolapse, there was no significant canal stenosis or nerve root impingement and, in October 2007, the plaintiff only had intermittent back pain, which Mr Han expected would improve. This view was consistent with Mr William’s opinion.
62 The plaintiff was also referred to Mr Dooley for his back, but there was no medical report relied upon.
63 The medico-legal opinions are reasonably consistent. Mr Brearley said the plaintiff had pain constantly in the low-back which varied in severity and was often discomfort rather than pain.
64 Dr Castle described the plaintiff suffering a moderate severe degree of pain.
65 Mr Doig said the plaintiff suffered a chronic low-back strain.
66 Dr Fish said the plaintiff suffered a typical mechanical low-back subsequent to aggravation of lumbar spondylosis with facet joint arthropathy.
67 Mr Simm said the plaintiff had a non-specific soft tissue condition of the low- back with associated chronic low-back and referred pain into the left lower limb without clinical signs of radiculopathy.
68 Most of the doctors accepted that the plaintiff could not work in heavy physical jobs but could and had worked with restrictions and considered this to be permanent.
69 To the plaintiff’s credit, he had returned to work and was working 38 hours per week with restrictions until he was made redundant in 2009. The fact that the plaintiff had been able to return to suitable work on a full-time basis is relevant to the question of whether the pain and suffering consequences of his injury are serious. Since 2009, he has retrained and intends to obtain employment in the aged care industry. He is not currently working as he is retraining.
70 Currently the plaintiff said he was taking medication of Tramadol daily, Mobic every second day, and heat bags and massage for his back. He has ceased physiotherapy.
Findings
71 The Court must be satisfied, on the balance of probabilities, that the plaintiff’s injury is a “serious injury”.[7] The plaintiff must establish that his injury is “permanent” and “severe”.[8]
[7] Section 134AB(16)(b) and (19)(a) of the Act
[8] Section 134AB(37)(a) of the Act
72 The first issue is whether the plaintiff has established that his impairment or loss of body function is “severe” by reference to pain and suffering consequences thereof to him, that is, when judged by comparison with other cases in the range of possible impairment or losses of body function.[9] For this purpose, relevantly, his impairment should not be held to be “severe” unless the pain and suffering consequences are, when judged by comparison with other cases in the range of possible impairments, fairly described as being more than “significant” or “marked”, and as being at least “very considerable”.
[9] Section 134AB(38)(b) of the Act
73 The plaintiff’s impairment is likely to last for the foreseeable future and will not become normal. I refer to the reports of Dr Shirzada, Mr Brearley, Dr Castle, Mr Doig and Dr Fish. The medical experts agreed that his work capacity is affected by his injuries but that he can engage in suitable employment which he has done. Whilst I have expressed some concern about the credit of the plaintiff, I accept, to a degree, his social and domestic activities have been affected by the injury.
74 Taking all the evidence into account, I am not persuaded, on the balance of probabilities, having viewed and considered the surveillance film, and in light of the evidence as a whole, that the consequences to the plaintiff satisfy the test. I accept the plaintiff suffered a back injury at work in July 2006. I accept that the injury has had consequences to him, but I am not satisfied that, when judged by comparison with other cases in the range of possible impairments, that the injury can fairly be described as being more than “significant” or “marked” and as being at least “very considerable”.
75 Accordingly, I dismiss the application.
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