Beasy v Victorian WorkCover Authority
[2018] VCC 1307
•7 September 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-05135
| JASON BEASY | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 August 2018 | |
DATE OF JUDGMENT: | 7 September 2018 | |
CASE MAY BE CITED AS: | Beasy v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1307 | |
REASONS FOR JUDGMENT
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Catchwords: Workplace Injury Rehabilitation & Compensation Act 2013 – s335 - Accident Compensation Act 1985 – s134AB(16)(b) – injury to the lumbar spine where individual incidents and course of employment relied upon – specific incident of injury to the cervical spine – whether injuries can be aggregated – application in respect of pain and suffering damages only – plaintiff a particularly credible and stoical witness – comparatively minimal treatment – whether burden of proof discharged – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards QC with Mr N Dunstan | Maurice Blackburn |
| For the Defendant | Mr J Batten | Russell Kennedy |
HIS HONOUR:
General background
1 This matter comes before me by way of an application pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (hereinafter referred to as “the Workplace Act”), although, as will be discussed, if the two areas of spinal injury are dealt with separately, arguably part of the application is pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (hereinafter referred to as “the ACA”). Ultimately, not a great deal would appear to hinge upon which of the two identical provisions is relied upon. The plaintiff is alleging injury to the low back, which injury is said to have occurred throughout the course of his employment with Flexiglass Challenge Pty Ltd (hereinafter referred to as “Flexiglass”), although there are also some specific incidents. The course of that employment would take the plaintiff beyond 1 July 2014, when the operation of the Workplace Act came into effect. Essentially, the specific incidents of injury to the low back occurred prior to 1 July 2014. Henceforth, that injury shall be referred to as “the back injury”.
2 The plaintiff is also relying upon injury to the cervical spine. This followed a clear and specific incident of injury on 14 February 2014. It is not suggested that there was any subsequent injury. In this regard, I would refer to Transcript (hereinafter referred to as “T”) 7-8, 47-48 and 50-52. Thus, in the absence of the aggregation of the spinal injuries, the injury to the cervical spine is one to be dealt with under the ACA. If the spinal injuries are aggregated, given that the full course of employment is relied upon in relation to the lumbar injury, theoretically, the provisions of the Workplace Act might be brought into operation. If what has been described as the back injury occurred throughout the course of the employment and is to be viewed separately from the neck injury, the provisions of the Workplace Act appear to operate in relation to it, whilst, as the neck injury resulted solely from an injury before 1 July 2014, the ACA would apply in respect of that injury. In any event, henceforth the injury to the cervical spine shall be referred to as “the neck injury”.
3 Leaving to one side the issue of aggregation, the distinction is probably one in name only, as the wording of the respective provisions is identical. Further, in answer to a question of mine, the plaintiff said, with some emphasis, that the pain emanating from the back injury is worse than that from the neck. As stated, the back injury is alleged to have occurred throughout the course of the employment (although in cross-examination the defendant sought to confine it to four individual incidents prior to 1 July 2014). The Workplace Act is prima facie the applicable legislation.
4 Mr J Richards QC with Mr N Dunstan of counsel appeared on behalf of the plaintiff. Mr J Batten of counsel appeared on behalf of the defendant. The plaintiff gave oral evidence, including the adoption of two affidavits as being true and correct. The balance of the evidence was documentary in nature, including a brief video, and was tendered either by consent or without objection. In relation to the nature of the dispute, Mr Batten stated that the matter was essentially a “range case” – see T8.
5 I say at the outset that it is my opinion that the injuries cannot be aggregated. Indeed, the issue of whether specific incidents of back injury should be separately considered was raised by Mr Batten in his opening remarks and in that regard he referred to the decision of the Court of Appeal in AG Staff Pty Ltd v Filipowicz [2012] VSCA 60 – see T8 and T41. The issue of the aggregation of the lumbar and cervical injuries and the viewing of the spine as a whole was not raised by Mr Richards until his closing address – see T47. I shall discuss this question subsequently, but it is my opinion that the plaintiff’s back injury can be treated as having arisen in the course of employment and be treated as one injury. However, the discreet neck injury is one where a specific incident on a specific date is relied upon and the course of employment generally is not. Bearing in mind what was said in Filipowicz and, for example, in Lu v Mediterranean Shoes Pty Ltd [2000] VSCA 65, I am of the view that the back and neck injuries cannot be combined so that the spine is then regarded as one unit.
Factual background
(a)The plaintiff’s background, education, training and employment prior to the injury
6 As leave has been sought solely in respect to pain and suffering damages, extensive details of the plaintiff’s education, training, pre-injury employment, earnings and the like are not required. Save to say that the plaintiff, having been born in 1976, is aged 42 years. He has a partner and two young children aged approximately 12 years and 11 years. He was educated to Year 10 level and has worked in heavy, manual labouring jobs. He was employed by Flexiglass for some 13 years, essentially installing trays and canopies in utility vehicles. Some of his work was done on site and involved the manoeuvring of heavy canopies, climbing into awkward positions when so doing and other demanding tasks. The plaintiff appears to have had a couple of specific episodes of back pain prior to a further episode in either late April or early May 2012. He suffered another episode when leaning forward to pick up a drill on approximately 12 February 2013. He seems to have returned to his normal heavier duties in May of that year. As stated, his neck injury occurred in a specific incident on 14 February 2014. The plaintiff, whilst at times being placed on restricted duties, effectively continued with employment of this nature until cessation of work with Flexiglass in approximately May 2015 – see T12.
(b) The plaintiff as a witness
7 The plaintiff was a particularly impressive witness. In his closing address, Mr Batten, on behalf of the defendant, described the plaintiff as “Generally a credible witness who’s got on with his life” – see T39. He went on to say that there was no dispute but that the plaintiff has some consequences of the discrete episodes of injury, whilst stating that the consequences do not satisfy the statutory test. As stated, I regard the plaintiff as having been very impressive. In my opinion, the very brief video shown did him no damage. It showed him and his family, including his mother, bedecked in the colours of Melbourne Storm and, his mother’s car having been parked near the Tan, heading along that track towards the rugby match that was to be conducted at AAMI Park. Apparently, it was discovered that his mother had left her mobile telephone in the car. Accordingly, the plaintiff hurried back, jogging at no great rate at least part of the way, to the car. Interestingly, there is no video of his returning from the car to rejoin his mother and his family. He gave evidence that he “then pulled up very sore afterwards” – see T29. I accept this.
8 In summary, I accept without reservation the evidence of the plaintiff.
(c)The state of the plaintiff’s health prior to the back and neck injuries
9 There is no suggestion that the plaintiff suffered from back and neck symptoms of any consequence before commencing employment with Flexiglass. Insofar as any neck symptoms are concerned, I accept that there were none of these until the occurrence of the specific incident on 14 February 2014. Insofar as any radiological investigations might suggest that there were degenerative changes in either the lumbar or cervical spine, I accept that these were not symptomatic prior to the commencement of the plaintiff’s employment with Flexiglass.
(d) The injury, its treatment and diagnosis
(i) Treatment in relation to the back injury
10 Whilst the plaintiff is relying upon the course of his employment in respect of the back injury, he does not seem to have sought medical treatment until approximately May 2012. It would appear that he attended at the Dundas Street Medical Centre in Thornbury, close to the then headquarters of the division of Flexiglass for which he worked. He saw Dr Jennifer Andrews, who took a history of the plaintiff jarring his back when “jumping off” (presumably this related to the course of employment, given the admissions made), and of pain when bending. Dr Andrews also took a history of two other episodes during the past year. In any event, Dr Andrews wrote a letter of to a physiotherapist, Mr Tony Flanagan (in fact the plaintiff seems to have been treated by Mr Mark Summers, physiotherapist, from the same practice). Dr Andrews noted in her letter of referral that the plaintiff’s current medications were Celebrex capsules and Panadeine Forte tablets taken daily.
11 The history given by the plaintiff to Mr Summers was of a three-week history of lower back pain. The plaintiff suspected that the cause was the stepping off a truck at work, followed by a twisting incident a short time later. The plaintiff also indicated that the nature of his work had also contributed to his ongoing symptoms and that he had had a similar episode in the past 12 months. Mr Summers felt that the plaintiff’s signs and symptoms suggested a soft tissue strain to the posterior structures of the right lower back. He noted that the plaintiff stood with a mild list to the left and that flexion and extension and active movements were moderately restricted by right sided lower back pain. Mr Summers further noted that the plaintiff was under some pressure at work to perform his normal duties and considered that this may be a stumbling block to an early recovery.
12 The plaintiff has sworn that his back effectively never recovered. However, he returned to work, being on restricted duties for a period. On 12 February 2013, he was leaning forward to pick up a drill from a truck when he felt a “pop” in the lower back, followed by pain. At this time, the plaintiff was attending Era Health Airport Clinic, which is close to another section of the business of Flexiglass.
13 A brief report from that clinic indicates that the plaintiff had been seen on 14 February 2013 with pain down the middle and lower back following his leaning forward to pick up a drill from his truck. He had been prescribed painkilling medication and referred for physiotherapy. When reviewed on 22 February 2013, Valium for night use was prescribed.
14 A further brief report from Dr Mei Lim of Era Health indicates that the plaintiff was making slow progress with his back pain. It is apparent that he was having further physiotherapy. It is also apparent that an MRI was being organised. Dr Lim was of the view that it may take something in the order of three to five months before the plaintiff would be fit to return to his pre-injury duties.
15 Dr Vicki Grove, who would appear to be from the same clinic as Dr Lim, has provided a report of 28 September 2014 to the plaintiff's solicitors. She indicated that the plaintiff had been first seen at the clinic by Dr Lim on 14 February 2013. The history given was of mostly right sided lower back pain since approximately May or June 2012. The history of the treatment then received was given. The plaintiff felt that his back had never fully recovered since and he had suffered intermittent twinges. There had been an incident on 12 February 2013 when the plaintiff was leaning forward to pick up a drill from a truck and felt a pop and pain in his lower back. There were no leg symptoms. After testing, the diagnosis was of discogenic low back pain, with Panadeine Forte and Voltaren being prescribed. There was also a referral for physiotherapy and work restrictions were applied. When reviewed a week later, the plaintiff had not improved significantly and Diazepam was prescribed for night relief.
16 Dr Grove saw the plaintiff on 8 March 2013, by which time there had been some improvement. Back extension was still painful. The plaintiff’s duties at the time involved a significant amount of driving, which was uncomfortable. Examination showed L4-5 tenderness with painful and restricted flexion and extension. The restrictions on the plaintiff's activities were continued and an MRI was ordered. Physiotherapy continued.
17 When seen again by Dr Lim on 22 March, the plaintiff’s back condition had worsened. He was prescribed Celebrex. On 15 April 2013, an MRI was performed. The relevant conclusions of the radiologist were as follows:
“1. Small disc protrusion at L4-L5 of the discal tissue impinging upon the thecal sac to the right of the mid line, but with no evidence of any foraminal extension or entrapment of the traversing nerve root.
2. There is mild spondyloarthropathy with desiccation of discal tissue at L2-L3, L3-L4 and L4-L5.” [not checked]
18 The plaintiff was last seen at this particular clinic on 23 May 2013 by Dr Lim. At that stage his back pain had gone, and he was essentially performing pre-injury duties. He was concerned about the risk of re-injury.
(ii) Treatment in relation to the neck injury
19 In relation to the neck injury, the plaintiff has sworn that this occurred on 14 February 2014. He saw Dr James Crompton in Dandenong some few days later and thereafter regularly in early 2014. However, no report from that practitioner was placed in evidence.
20 It is apparent that, on 18 March 2014, the plaintiff had a further MRI. This related to the cervical spine. The history associated with it is one of three weeks post-hyper reflection injury of the neck with ongoing headaches. The MRI showed reduced T2 signal and mild disc height loss at multiple levels. There was minimal spurring and small posterior annular bulges were present, with such bulges being more prominent at the posterior of C4-5, C5-6 and C6-7. Disc bulges were at their maximum in the midline and only partially effaced the thecal sac, not quite reaching the cord. In addition, mild narrowing was shown of the right C4-5 and C5-6 exit foramina secondary to joint spurs, but the radiologist was not convinced that the exiting nerve roots were in fact compressed, although contact was made. No other abnormalities were detected.
21 It would seem that the plaintiff rarely sees a medical practitioner. He is unquestionably a stoical person, as shall be discussed.
(iii) Medico-legal reports
22 The plaintiff has been seen for medico-legal purposes. Professor Richard Bittar, consultant neurosurgeon, saw the plaintiff at the request of his solicitors on 26 April 2018, reporting on that day. The report contains something of a mixture of matters to do with the back injury and those relating to the neck injury. Given the way in which the report reads, I shall not try to separate them.
23 Professor Bittar took a history of the plaintiff having worked as a fitter, but currently working a full week as a driver. He complained of intermittent neck pain, occurring about seven times a day and lasting for variable periods of time. The pain radiated to both shoulders and was associated with a loss of feeling in the arms, this also being intermittent. The neck pain, which could be quite severe, was exacerbated by sudden or repetitive movements, maintaining the neck in a fixed position, using a computer for more than approximately 15 minutes, driving for long periods, repetitive arm movements and the like. It was also exacerbated by lifting more than approximately 15 kilograms.
24 In relation to the plaintiff’s lower back pain, this was constant, although varying in character. Whilst located in the lower lumbar region towards the midline, the pain radiated diffusely into both legs, the leg pain being intermittent and tending to occur when the back pain flared up. The average severity of it was estimated at 7.5/10, with a maximum severity of 10/10. The pain was exacerbated by sitting, standing, bending, twisting, lifting and the like. The plaintiff could walk for approximately one hour and could sit or stand for 30 minutes. He could lift up to 20 kilograms in weight before his back pain deteriorated. His pain improved with frequent postural changes, heat packs and medications.
25 The diagnosis of Professor Bittar was aggravation of cervical and lumbar spondylosis. He considered that the general nature of the plaintiff’s employment over a period of time had been a cause of the injury to his back. He expressed the opinion that the plaintiff was permanently incapacitated for full pre-injury duties as a result of his work-related neck and lower back injuries, both when considered together or separately. He possesses the capacity to work in a suitable role, currently being employed as a driver for 38 hours per week. Professor Bittar considered the plaintiff’s incapacity for work as being permanent. He also thought that the plaintiff was likely to continue to suffer from significant pain and disability into the foreseeable future. Further, he considered that the restrictions imposed upon the plaintiff by reason of his back injury were permanent, and the same could be said of the neck injury and its sequelae.
26 The defendant organised an examination by Dr Ian Dickinson, orthopaedic surgeon. His examination was carried out on 2 March 2018. The plaintiff described to Dr Dickinson three incidents of injury. Two of these, namely those of May 2012 and February 2013, related to problems of the low back. The third, being on 14 February 2014, related to the head and neck. The plaintiff complained of recurring incidents of pain in the neck and into the left trapezius region. He complained that his lower back continued to hurt, particularly on the right hand side. He had trouble sitting on hard surfaces. He had difficulties when helping his wife around the house or weeding the garden. He tries to help at home, but finds that any leaning causes him trouble, particularly with the low back. He could walk for approximately half an hour and could not run. He could not kick a football with his son for very long, this being limited by back and neck pain.
27 Whilst noting the restrictions upon the plaintiff’s activities, Dr Dickinson expressed the opinion that there was no evidence of any degree of permanent disability as a result of the injuries. He noted that the plaintiff was under no treatment and taking no medication. He referred to the plaintiff as having degenerative changes in the cervical and lumbar spines. He considered these to be within normal limits, although gradually the spine would deteriorate. Surgery was not a prospect. He was not of the view that degenerative changes necessarily cause symptoms and considered that the symptoms which the plaintiff had experienced in the context of the incidents were transient. He also referred to some inconsistent findings. He did not consider that employment had materially contributed to the degenerative changes or to the plaintiff’s ongoing complaints of pain. He thought that any aggravation was temporary. He took the view that the plaintiff’s condition was related to other factors, including perceptions of pain and the like. He also thought that the plaintiff was overweight and unfit, expressing the view that any effect of work-related exacerbation had ceased. He thought that there was the presence of functional overlay signs, but no overt symptom exaggeration. He considered the plaintiff not to be restricted in his general activities and said that the physical examination revealed no significant abnormality.
28 The defendant also arranged for the plaintiff to be examined by Dr David Fish and Mr Gerald Moran, whose reports were in fact placed before me by the plaintiff. Each of these examiners paid considerable attention to assessment pursuant to the AMA Guides, Dr Fish concentrating and assessing the neck, whilst Mr Moran’s focus was on the back.
29 Dr Fish, who is a consultant occupational and environmental physician, saw the plaintiff at the request of the defendant on 4 April 2016. He directed his attention entirely to the neck injury. He noted that, by way of current treatment, the plaintiff was using a TENS machine applied to the left shoulder at night. A mental state examination was normal. A full cranial nerve examination revealed no abnormalities. There was restriction of neck movement to the right in lateral flexion and rotation, with complaints of tightness over the left side. There was non-anatomical reduction of sensation in the left upper arm, with reflexes and power being normal. There was no wasting of the arms and coordination was also normal. Dr Fisher’s conclusion was that the plaintiff was suffering from post-traumatic headache, aggravation of cervical spondylosis with dysmetria and referred symptoms, but without radiculopathy. Whilst thinking that the closed head injury was trivial, Dr Fish did make an assessment of whole person physical impairment pursuant to the AMA Guides. There is no indication that he considered the lumbar injury.
30 Mr Gerald Moran, orthopaedic surgeon, saw the plaintiff on 10 March 2015. He took an appropriate history, with particular emphasis upon the incident of 7 May 2012 in which the plaintiff experienced a popping sensation and severe pain in his low back (the “popping sensation” in fact seems to be associated with the incident of 12 February 2013 rather than that of May 2012). Mr Moran noted that the plaintiff was presently working full-time on his normal duties. He took a history of constant low back pain fluctuating in severity, with restriction of back movements. There was occasional pain in either thigh, although no numbness. The plaintiff was using a heat pack and performing daily exercises given to him by his physiotherapist. Mr Moran diagnosed aggravation of disc generation at L2-3, L3-4 and L5, along with the development of an L4-5 disc prolapse. He referred to the MRI of 15 April 2013. Mr Moran considered that the plaintiff’s impairment was stabilised and was prepared to make a whole person impairment assessment pursuant to the AMA Guides.
31 Whilst there was something of a scarcity of current medical opinions, and particularly from any practitioner treating the plaintiff, I am of the view that, as a result of the injuries, the plaintiff has suffered aggravation of (i) lumbar spondylosis and (ii) cervical spondylosis, as diagnosed by Professor Bittar. Similarly, Mr Moran, examining on behalf of the defendant, has diagnosed aggravated disc degeneration at L2-3, L3-4 and L5, with the development of an L4-5 disc prolapse. This diagnosis is perhaps more specific, but seems consistent with the diagnosis of Professor Bittar. These findings, insofar as they relate to the low back, are also consistent with the conclusions reached by the radiologist following the MRI of the lumbar spine on 15 April 2013. It is to be remembered that those findings were of a small disc protrusion at L4-5, with some impingement upon the thecal sac, but no evidence of any foraminal extension or entrapment of the nerve roots. There was also the finding of mild spondyloarthropathy with desiccation of discal tissue at L2-3, L3-4 and L4-5.
32 I prefer the findings and opinions referred to above by those treating the plaintiff and by Professor Bittar to the conclusions reached by Dr Dickinson. The various comments of the other examiners seem to me to be logical and consistent with the radiological investigations. They also coincide with the impression created by the plaintiff in giving his evidence. I accept them. The diagnoses referred to above, other than that of Dr Dickinson, are consistent and preferable. In relation to the neck, Professor Bittar’s diagnosis of aggravation of cervical spondylosis is essentially consistent of that of Dr Fish, examining on behalf of the defendant. Again, I prefer this to the diagnosis and conclusions of Dr Dickinson.
33 Outside of the report of Dr Dickinson, there is no suggestion that the plaintiff has some signs of functional overlay. There are no reports from psychiatrists or psychologists. Pursuant to s134AB(38)(h) of the ACA and s325(2)(h) of the Workplace Act, the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury. In the present case, despite the opinion of Dr Dickinson, there is not sufficient evidence to persuade me that any such consequences exist. Further, the plaintiff was a witness who tended to understate his problems and who, in the witness box, exhibited no sign of any functional overlay or similar symptoms. Further, his stoicism, work history and paucity of medical treatment were and are scarcely indicative of a person suffering from psychological or psychiatric consequences of injury. In any event, if any such symptoms do exist, they will not be taken into account.
34 Whilst the course of the plaintiff’s employment, together with individual incidents, is relied upon, it is not argued that the plaintiff was suffering from any neck or back injury prior to the period or occasions upon which reliance is placed. Whilst the radiological investigations, along with, for example, the opinions of Professor Bittar may indicate the existence of pre-existing degenerative changes, I am not satisfied that the plaintiff’s condition was symptomatic prior to the employment or, in the case of the neck injury, the specific incident in question.
35 I am satisfied that the consequences of injury to the plaintiff’s back and neck are permanent within the meaning of the Workplace Act and the ACA, in that they will persist for the foreseeable future. Professor Bittar has expressed the opinion that the plaintiff is likely to suffer from significant pain and disability into the foreseeable future and that he has a partial incapacity for work which is permanent. He has also stated that the restrictions from which the plaintiff suffers as a result of his back injury are permanent, giving the same opinion in relation to the neck injury. Dr Fish, examining on behalf of the defendant, described the impairment of the plaintiff’s neck as being stabilised and was prepared to make an assessment pursuant to the AMA Guides. He specifically stated that the degree of impairment was permanent. Mr Moran, similarly examining but concentrating upon the plaintiff’s low back symptoms, stated that the plaintiff’s impairment had stabilised and he was also prepared to make an assessment pursuant to the AMA Guides, a necessary ingredient of such assessment being permanence. I am satisfied that this requirement has been met. There was no significant argument to the contrary.
(e) Other developments since the injuries
36 As stated, in relation to his back, the plaintiff relies upon injury throughout the course of his employment with Flexiglass. He performed restricted duties immediately following incidents of back injury and following the specific occurrence of the neck injury. Following the neck injury, his restricted duties seem to have continued until he ceased work with Flexiglass in May 2015. He then obtained employment with an entity called A & L Windows, where he had the assistance of a “jockey” when doing that work. After some 18 months the plaintiff left that employment and in January 2017, commenced with his present employer, K & S Environment Pty Ltd. His works involves driving around Melbourne, essentially using equipment which picks up and empties big industrial “wheelie bins”. This is full-time employment and there is no suggestion that there has been any diminution in earnings. The plaintiff freely admitted that he had not lost any time because of injury to either his back or his neck.
Ruling
(a) Aggregation
37 Firstly, I am of the opinion that the consequences of the separate injuries to the back and neck cannot be aggregated. In the circumstances of this case, the spine cannot be treated as a unit to which injury in the course of employment with Flexiglass has occurred.
38 It is argued that the injury to the back has occurred as a result of the course of employment and two or more incidents. The injury to the neck has occurred in a single and separate incident. Whilst that also occurred in the course of employment, it is not argued and there is no medical evidence to the effect that any injury to the back also occurred in this incident. It represents a discrete injury to the neck.
39 In Filipowicz, the worker suffered injury to the one body part (the right shoulder) in two separate incidents with two separate employers, it being argued that the later was an aggravation of the earlier. The injured worker had issued serious injury applications against both such employers. Essentially, at first instance, the applications had been heard together. The Court of Appeal found that the two injuries arose from separate incidents and could not be accumulated. The injury suffered in the earlier employment had to satisfy the requirements of a serious injury in its own right, rather than in combination with the later injury.
40 The situation in the present case differs, in that there is only one employer and one serious injury application. However, it would seem to follow that each injury – back and neck – should be assessed separately, involving as they do injuries arising from separate causes or occurrences. I am not of the view that the general assertion that the back injury arose out of the course of employment is sufficient to permit it to be viewed cumulatively with the neck injury. The situation might be different if it was being alleged thatthe plaintiff had suffered injury to both the lumbar spine and cervical spine during the general course of his employment. That is not the situation. The course of employment is not asserted in relation to the neck injury. It arose from a specific incident. In my view, this does not permit the inclusion of the neck injury in a general or overall assessment of the spine as a whole.
41 In summary, given that the injury to one part of the spine is alleged to have been caused by employment in general, including two or more incidents, and the injury to another part of the spine was caused by a specific and totally different incident it seems to me that the consequences of the two cannot be aggregated and must be viewed separately.
42 Further in relation to the back injury, the incidents upon which reliance is placed are part of the general course of the plaintiff’s employment. Both incidents involve such things as stepping or jumping off a truck, bending, leaning forward and the like. It seems to me to be valid for the plaintiff to rely both upon a course of employment and these incidents which were part and parcel of it. In any event, I would also point out that the plaintiff’s treating general practitioner, Dr Lim, has more than once stated that the desiccation revealed by the MRI is consistent with the nature of the plaintiff’s job, which requires manual handling and repetitive bending. Further, it is the opinion of Professor Bittar that the general nature of the plaintiff’s employment over a period of time has been a cause of injury to the plaintiff’s back. He also stated that the plaintiff’s employment with Flexiglass has been the dominant contributing factor to the plaintiff’s neck and lower back injuries. I accept these propositions.
43 Having dealt with the issue of aggregation, I turn now to the individual and separate injuries.
(b) The back injury
44 If the injury to the lumbar spine is viewed in isolation, I am of the view that the plaintiff has satisfied the statutory test. I have come to this conclusion for the following reasons, which are not set out in order of importance or significance.
(a)The plaintiff was an impressive and highly credible witness. I have no hesitation in accepting his evidence. In applications of this nature, the credit of the plaintiff is frequently important. As was said by Brooking J in Palmer Tube Mills (Aust) Pty Ltd & Anor v Semi (1998) 4 VR 439 at 448:
“Moreover, in 'serious injury' applications the credit of the applicant is of great importance …”
This observation was referred to more recently by the Court of Appeal in Papamanos v Commonwealth Bank of Australia [2014] VSCA 176. Further, in Haden Engineering v McKinnon (2010) 31 VR 1, Maxwell P stated the following:
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff's credibility.”
In the present case, I rate the plaintiff's credit and credibility very highly.
(b) I am also of the opinion that the plaintiff is a stoic. He has got on with his life, and particularly his employment, despite a high level of back pain which has resulted in a lot of interference with his everyday life. He has also kept medical treatment to a minimum.
In Hayden Engineering, Maxwell P stated as follows:
“The injury suffered by the 'stoical' plaintiff is not to be viewed as any the less serious merely because he/she manages to remain more active than might have been expected given the level of pain. In such a case, the 'objective' evidence of the disabling effect may be of less significance than usual.”
I would also refer to the observations of Nettle JA in Dwyer v Calco Timbers Pty Ltd (No 2) [2008[ VSCA 260 as follows:
“I suspect that, but for the way in which the appellant has been prepared to put up with his pain and suffering and get on with his business as best he can, the respondent may well not have disputed his claim. It is unnecessary for present purposes to reach a concluded view about that and I have not done so. But it would be unfortunate, and in my view wrongheaded, if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”
It is my opinion that observations such as those set out above certainly apply to this plaintiff.
(c) The plaintiff has sworn in each affidavit that he has ongoing pain in his lower back on a daily basis. In his more recent affidavit, he has referred to his base level of pain as being at about 3/4 out of 10, but with increases to 7/8 out of 10 on bad days. His level of pain fluctuates daily. This evidence was not challenged, although he agreed that, when seen by Dr Lim at the same clinic as Dr Grove on 23 May 2013, he stated that he had no back pain.
The experience of pain on a daily basis is a factor of some importance, as has been discussed in Haden Engineering, Sutton v Laminex Group Pty Ltd (2011) 31 VR 100 and other cases.
(d) Interference with sleep is a factor that received particular attention in the Judgment of Maxwell P in Haden Engineering. His Honour stated that it was a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep.
In his more recent affidavit, the plaintiff has stated that his sleep continues to be disturbed by back pain and that he uses a TENS machine in relation to it, using that on average approximately twice a week. His wife, who was not cross-examined, has sworn that, since injuring his back, the plaintiff has often complained of having disturbed sleep at night because of back pain. Different pillows and mattresses have been tried, but the difficulties have continued. Often the plaintiff’s wife hears him tossing and turning at night and he gets out of bed in order to stretch his back. I accept that what has been sworn in these affidavits is accurate.
(e) One issue concerning which the plaintiff became quite emotional related to the interference with his ability to play with and engage in activities with his children. As I understand it, he has a son who is aged approximately 13 years and a daughter aged 12. The plaintiff, who impressed me as being both stoical and resilient, became tearful and emotional when discussing the restrictions upon his interaction with them. Whilst his neck pain also plays a role in this, the discussion of the interference with his relationship with his children follows his somewhat emphatic answer to a question of mine to the effect that his back pain was “the worst” – see T35 and 36.
(f)The plaintiff’s wife has sworn that, prior to the plaintiff injuring his back, they used to visit their families every few weeks with their children. This now occurs far less frequently because of the problems which the plaintiff has with driving. They used also to go with the children to a restaurant on a monthly basis. Because of the problems the plaintiff has with sitting for long periods, they now only go out approximately once every four months. Whilst these may appear not to be matters of great moment, they are further examples of instances of interference with family life and with the plaintiff’s interaction with his children.
(g) Whilst the plaintiff, to his credit, has maintained full-time employment and seems to have found an occupation which is not too physically demanding, he gave evidence that, after finishing a shift at work, he relaxes on a couch because his back is sore. He takes Nurofen and Panadol daily. Thus, while he is able to continue working, frequent, if not daily, back pain is the consequence and the plaintiff's leisure time is adversely impacted.
(h) The plaintiff informed Professor Bittar that his back pain is exacerbated by sitting, standing, bending, twisting, lifting, pushing, pulling, straining and walking. To Professor Bittar, he stated that his back pain averaged 7.5/10 and it is to be remembered that this is a history given on 26 April this year. If that history is accepted, and I have no reason not to accept it, it can be seen that there is a multitude of daily activities which will be impacted upon by the plaintiff’s back pain.
(i) True it is that the plaintiff has had little, if any, treatment in recent years. As has been said many times, the frequency and nature of medical treatment is a factor that can and should be taken into account. However, it should also be seen in the context of a person who is stoical. The plaintiff handles the pain as best he can with daily use of over-the-counter medication, such as Nurofen and Panadol, and also by use of a TENS machine.
Whilst a substantial treatment regime is not present as a factor operating in favour of the plaintiff's application, in my opinion the fact that he is a stoic and that he handles daily pain in the manner that has been described means that the absence of more intensive treatment does not act to the detriment of this particular application to any substantial extent.
(j) There was also no challenge to the assertion by the plaintiff’s wife that, because of his back and neck pain, their intimate life has been adversely affected. In addition to that, in general terms, their relationship has suffered because of his irritability due to pain in the back and neck. I appreciate that these particular observations embrace both the back and neck injuries, but it is to be remembered that the plaintiff stated somewhat emphatically that his back pain was “the worst”.
45 When all of the above is taken into account, it is my opinion that the plaintiff has established that the pain and suffering consequences emanating from his back can be described as being more than significant or marked and as being at least very considerable. In other words, he has discharged the burden of proof insofar as the back injury is concerned.
(c) The neck injury
46 Given that I have found in favour of the plaintiff in relation to the back injury, consideration of the neck injury is probably not required. Were it necessary, I would be of the view that the burden has not been discharged in relation to the neck injury. The plaintiff obviously considers it and its consequences to be not as great as the pain and suffering consequences emanating from his back. Without going into them in detail, when the consequences emanating from the neck injury are evaluated, they seem to me to fall short of satisfying the statutory test.
(d) The spine as a whole
47 As stated, because of the particular circumstances surrounding the occurrence of the back and neck injuries, I am of the view that, for the purposes of a serious injury application, they should not be aggregated. The injury to the back is alleged to arise throughout the course of employment and with a number of specific incidents. By way of contrast, the injury to the neck is alleged to have arisen in one particular incident on one particular day. Thus, the injury is to two different parts of the spine suffered in different circumstances. Again, given my finding in relation to the back injury, a further discussion of the law in relation to aggregation does not seem necessary.
Conclusion
48 The plaintiff is successful. In relation to the injury to the back, he has discharged the burden of proof. Leave is given to him to bring proceedings for pain and suffering damages. I shall hear the parties to any ancillary orders that are required.
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