Beaton v Exel Composites (Australia) Pty Ltd
[2012] VCC 1450
•28 September 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-03611
| Brett Beaton | Plaintiff |
| v | |
| Exel Composites (Australia) Pty Ltd | Defendant |
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JUDGE: | S. Davis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 September 2012 | |
DATE OF JUDGMENT: | 28 September 2012 | |
CASE MAY BE CITED AS: | Beaton v Exel Composites (Australia) Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1450 | |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 (Vic) – s134AB(16)(b) – injury to the lumbar spine – aggravation of pre-existing degenerative changes – pain and suffering
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S. Carson | Maurice Blackburn |
| For the Defendant | Mr J. Batten | Hall & Wilcox |
HER HONOUR:
1 The plaintiff, Mr Brett Beaton, applies under s134AB(16)(b) of the Accident Compensation Act 1985 (Vic) (the Act) for leave to issue proceedings for the recovery of damages for pain and suffering only in respect of an injury to the lumbar spine suffered during the course of his employment with the defendant as a machine operator after 20 October 1999 and particularly after July 2003. The injury relied upon is the aggravation of underlying degenerative changes in the lumbar spine. The impairment relied upon is a permanent impairment of the lumbar spine comprising L4-5 and L5-S1 disc prolapses, low back pain with referred pain to the legs particularly the right leg, suggestive of L5 nerve root involvement but without objective clinical signs of right L5 radiculopathy.[1]
[1]Plaintiff’s Court Book (PCB) 44.
2 The defendant agrees that the plaintiff has suffered a work-related permanent impairment of the function of the lumbar spine but says that the pain and suffering consequences of the impairment are not “more than considerable” when compared with other cases in the range of impairments of the lumbar spine.
Injury and treatment
3 The plaintiff is 43 years old and was educated to Year 10 level. He had learning difficulties at school and achieved a low level of literacy.[2] He then worked as a factory hand in various jobs before starting work with Pacific Composites (the defendant’s predecessor) as a machine operator in May 1999. The work was heavy, and included repetitively loading 15-20 kilogram fibreglass “cheeses” onto storage racks, lifting 20-25 kilogram bags of flow and pushing heavy drums of resin with a hand trolley.[3] The plaintiff experienced low back pain from time to time.[4]
[2]Defendant’s Court Book (DCB) 32.
[3]PCB 8.
[4]PCB 9.
4 On 2 July 2003 he experienced a flare up of low back pain which is the subject injury.[5] He saw a doctor and was prescribed anti-inflammatory medication and was referred for physiotherapy. He had a week off work[6] and was given a brace to wear.[7] There was some improvement but he continued to experience increased pain during 2007 and started to have more time off work.[8] In 2004 he started seeing a chiropractor.[9]
[5]PCB 9.
[6]PCB 9.
[7]PCB 32, 37.
[8]PCB 10.
[9]PCB 10.
5 On 19 April 2007 a CT scan of the lumbar spine was reported with the following conclusions:
There is previous internal derangement of the L5/S1 disc but no associated protrusion. There is mild broadbased disc protrusion at the level of L4/5 which is causing only slight displacement of the main thecal sac and exiting nerve roots at those levels.[10]
[10]PCB 68.
6 The plaintiff suffered a further worsening of his low back pain on waking up one day in March 2008.[11] He consulted Dr Ronald Krigsman and was off work for a few weeks.[12] He then returned to work for limited days and on restricted duties.[13] Dr Krigsman referred him to Mr Rodney Simm in April 2008.
[11]PCB 32.
[12]PCB 11.
[13]PCB 11.
7 An MRI scan on 15 May 2008 was reported with the following conclusions:
L4-5 disc dessication without disc height loss. Small broad based disc protrusion with small annular tear nominally indents the anterior thecal sac. Foramina unencumbered.
L5-S1 disc dessication with nominal disc height loss. Small broad based disc protrusion and small annular tear mildly indents to the anterior thecal sac. Foramina unencumbered.
8 Mr Simm referred the plaintiff to Dr Clayton Thomas in July 2008, but the plaintiff did not proceed with the proposed pain management plan at that time because his back improved.[14] In September 2008 the plaintiff was working three full days per week in modified duties and he then returned to full time light or modified duties. He was still taking occasional days off work when the back pain became unbearable.[15]
[14]PCB 11, 38-39.
[15]PCB 12.
9 On 8 January 2009, Dr PD Clark reported that the plaintiff was “working his normal hours and doing his normal duties”,[16] that he first noticed work-related back pain in 2003 and that his boss told him to wear a brace. He did not seek treatment and was off work for three days. He had back pain from time to time but continued working and has had occasional chiropractic or physiotherapy treatment. At the time of the consultation he was on holidays and his back was “now good. He says he gets occasional ‘niggles’ in his back but has no current symptoms”.[17] He was not taking any medication but took Brufen and Panadol for back pain as required. He was attending twice weekly Pilates sessions and weekly hydrotherapy treatment. Dr Clark felt that his condition had resolved, he needed no further treatment and he was fit for his pre-injury duties. Dr Clark confirmed his opinion in a supplementary report dated 28 January 2009.[18]
[16]DCB 5.
[17]DCB 6.
[18]DCB 11.
10 In March 2009, the plaintiff’s employment was terminated.
11 On 5 May 2009 Mr Simm reported[19] that the plaintiff was suffering from an aggravation of L4/5 and L5/S1 lumbar disc degeneration, with his symptoms “particularly implicated the L4/5 level”, with “referred pain to the right big toe and some non-specific subjective sensory changes”. Mr Simm noted:
When I first saw him he presented in a straight forward manner and the signs and symptoms were entirely consistent with the underlying organic pathology which was demonstrated on the MRI scan. In July of 2008 he presented with some clinical features which caused me some concern. He walked with a marked right-sided limp and there were non-anatomical sensory changes involving the entire right lower limb. I made a clinical diagnosis of early features of an spinal pain syndrome and at that time suggested referral to Dr Clayton Thomas. When next reviewed in August of 2008 I was pleased to see that theses signs of a spinal pain syndrome had largely settled.
[19]PCB 37.
12 Mr Simm noted that when he last saw the plaintiff he was doing light duties. Mr Simm felt that conservative treatment was appropriate. He expected that the plaintiff’s condition would deteriorate over time.
13 On 4 August 2009, Dr Kevin Fraser, rheumatologist, reported[20] that the plaintiff may have suffered an aggravation of constitutional degenerative changes in the lumbar spine from time to time as a result of bending and lifting in the course of his work. However, Dr Fraser opined that any work-related aggravation “has now ceased and any ongoing incapacity is due to the underlying degenerative changes”. He stated that there were some features (although he did not specify what these were) “suggesting that non-organic factors are contributing to his symptoms and signs”. In this regard, he relied on Mr Simm’s comment concerning a spinal pain syndrome in a letter of July 2008.
[20]DCB 14.
14 On 7 December 2009 Mr Simm reported[21] that that after September 2008 the plaintiff had returned to full time work doing normal duties but without any heavy lifting, but that his employment was terminated in early 2009. Liability for treatment had been withdrawn and he had not been able to afford any further physical therapy. Mr Simm noted that the plaintiff had “a very limited capacity for work because of a chronic adverse pain response to unresolved aggravation of lumbar disc degeneration”. Noting that the plaintiff lacked any occupational qualifications, Mr Simm concluded that he would permanently remain out of the workforce. He noted:
He has referred symptoms into the right lower limb suggestive of L5 nerve root involvement but there are no objective clinical signs of right L5 radiculopathy. The physical condition now appears to be complicated by the development of a chronic spinal pain syndrome.
His prognosis is poor. He has an established pattern of disabling symptoms which is likely to persist indefinitely and prove resistant to treatment. On the basis of his symptoms he will be confined to light activities that allow him flexibility with static postures.
[21]PCB 41.
15 MRI scan on 7 August 2009 was reported with the following conclusions:
At L4-5, there is a broad based disc bulge present effacing the anterior aspect of the thecal sac, there is no central canal stenosis there is mild foraminal narrowing on the left but no compression of exiting nerve roots.
At L5-S1, there is a posterior central disc protrusion with a small posterior central annular disc disruption, there is no central canal stenosis and no significant foraminal narrowing.
16 On 15 April 2010 Dr Fraser provided a report which reached similar conclusions. He disagreed with a suggestion by Dr Krigsman that surgery would be beneficial. He felt that the plaintiff’s prognosis was poor. He felt that the plaintiff had a capacity for suitable employment in any work not requiring bending and/or heavy lifting of more than 5 kilograms or any prolonged standing or walking.
17 In June 2010 the plaintiff had physiotherapy for his lower back pain.[22]
[22]PCB 52.
18 On 5 July 2010, Mr Ian McInnes, general surgeon, reported[23] that the plaintiff was suffering from degenerative disease of his lower spine, particularly at L4-5 and L5-S1 which was giving him lower back pain. In spite of the complaint of numbness and pain in his right leg, Mr McInnes found no objective evidence of radiculopathy. He noted a small disc protrusion at L4-L5. Mr McInnes felt that the plaintiff was developing a chronic pain syndrome relating to his lower spine and that this was the “most pertinent factor prolonging incapacity”. He felt that the plaintiff would have limited capacity for modified duties only. He felt that positions as a clerk, administrative assistant or data entry operator would be suitable employment.[24]
[23]DCB 21.
[24]See his supplementary report dated 12 July 2010 at DCB 26.
19 On 18 October 2010 the defendant accepted liability for the injury to the “low back with referred symptoms to legs”, arising out of or during the course of the plaintiff’s employment, and assessed a 5% whole person impairment of the lumbar spine.[25]
[25]PCB 75.
20 On 23 October 2010, the plaintiff’s physiotherapist, Mr Luke Sweet, reported[26] that on examination the plaintiff was suffering from discogenic pain from the disc protrusions at L4/5 and L5/S1 but also exhibited “signs and symptoms” of a chronic pain syndrome which warranted the input of a psychologist.
[26]PCB 52.
21 On 6 January 2011 the plaintiff saw Dr Thomas, who felt there was a “complex pain problem” and who referred him to Angliss Hospital for outpatient treatment.[27] Dr Thomas noted that Dr John Haywood, neurologist, wrote to him in December 2010 expressing the opinion that the numbness below the right knee was not likely to be a peripheral nerve problem but was likely to be a nerve root problem. Dr Haywood recommended conservative treatment.
[27]PCB 55.
22 On 14 January 2011, Dr Thomas wrote to Dr Krigsman[28] that the plaintiff presented with a “complex pain problem”. Dr Thomas wondered whether there was “some right L5 nerve root problem here”, with possible subsurface stenosis accounting for the numbness, but “it is really very subtle and no more rehabilitation was required”. The plaintiff told him he felt better when he was working and Dr Thomas suggested he return to work in a casual capacity and then could increase depending on how he progressed.
[28]DCB 41.
23 The defendant relied on a number of reports to Dr Krigsman from the rehabilitation team at Angliss Hospital.[29] The first report dated 30 August 2011 noted that the plaintiff had completed his rehabilitation program involving hydrotherapy, physiotherapy and general exercises. The second report dated 23 January 2012 noted that the plaintiff was attending a gym program twice per week. A report by Dr Suhaila Rizal Shah, rehabilitation registrar, dated 30 January 2012, noted that a trial of Venlaxafine gave him no benefit and was to be ceased. The plaintiff reported that the gym program “has actually helped with his pain”. He was due to commence a pain management program in February 2012.
[29]DCB 44-48.
24 On 11 January 2012, Mr Michael Dooley, orthopaedic surgeon, reported that the plaintiff complained of ongoing low back pain, as well as pain in his right leg affecting mainly the knee and big toe regions. He said that his right leg feels numb all of the time. The plaintiff said that at times his right upper limb becomes numb. He was doing exercises at home, and was taking Panadol Osteo for pain. He was also on antidepressant medication. He said that the option of lumbar spinal fusion surgery had been discussed with him. The plaintiff said that “he struggles to carry out household chores and home maintenance duties. He pays someone to mow his lawns”. Mr Dooley felt that while the plaintiff had pre-existing degenerative changes in the low lumbar spine it was likely that he sustained a right sided disc prolapse at either the L4/5 or L5/S1 levels during the course of his work. This would explain initial significant low back pain and right sided sciatica. However, the sciatic pain should have settled over time. Mr Dooley opined that:
While one can explain a proportion of Mr Beaton’s ongoing pain on the basis of organic injury one cannot explain all of his ongoing symptoms on this basis. I believe that the constancy and intensity of his ongoing pain are greater than one would expect to see for his situation. I cannot easily explain his right lower limb pain and numbness.[30]
[30]DCB 39.
25 Mr Dooley felt that the plaintiff should continue his home exercises and gym work and did not require formal ongoing conservative management. He felt that there was no indication to consider surgical intervention. He concluded that the loss of lumbar spinal motion from the compensable injury has been “mild to moderate” and was permanent.[31] The plaintiff would “continue to note intermittent low back pain and lower limb pain”.[32] He would not be able to carry out heavy physical work but was fit for light physical work and clerical duties.
[31]DCB 39.
[32]DCB 39.
26 On 23 January 2012, Mr Simm reported[33] that he had re-examined the plaintiff. He noted that there had been no improvement in his condition. His chronic pain was consistent with unresolved aggravation of lumbar disc degeneration but there were also some features of a chronic adverse pain response. He noted that the plaintiff was fit for full time work in suitable light employment which gives him flexibility with static postures and allows him to handle objects between knee and chest height. He could not drive a forklift for extended periods. His incapacity for heavy work was permanent.
[33]PCB 45.
27 The plaintiff attended a pain management course for eight weeks on 8 February 2012.[34]
[34]PCB 58.
28 On 20 March 2012, Dr Thomas reported[35] that when he saw the plaintiff on 14 February, he complained of ongoing back pain with numbness down the right leg and occasionally in the foot. Dr Thomas found that the plaintiff had symptomatic spondylosis with sciatica in the right leg but no evidence of radiculopathy. Dr Thomas noted that due to the organic nature of his condition, the plaintiff could work full time provided the work did not involve repetitive bending, lifting and twisting below waist height or above shoulder height and he lifted no more than 10 kilograms between waist and chest height. If he was required to perform repetitive lifting outside these restrictions, he would be unable to work full time. Dr Thomas opined that the partial work incapacity was permanent, and the prognosis was for “persistent pain and disability”. He recommended that the plaintiff lose weight, increase his aerobic fitness and continue with core stabilisation exercises.
[35]PCB 57.
29 On 4 June 2012, Dr Fraser re-examined the plaintiff and reported[36] the plaintiff’s account that his situation had not changed and he continued to experience low back pain, “burning and pulling sensations” in the mid-back and across the shoulder girdle region, as well as “fairly constant” right sided sciatica associated with numbness of the right great toe. The plaintiff told him he was taking two Panadeine Forte tablets three times a day, and two Nurofen tablets four times per day, when the pain is more severe, on average three to four days per week. He had completed a three month gym program at Angliss Hospital and was doing a home exercise program. He had also lost weight. He had not returned to work. Dr Fraser again noted “overreaction on physical examination”. Dr Fraser reaffirmed the conclusions expressed in his earlier report.
[36]DCB 18.
30 On 21 June 2012 the interpreter obtained a job with Banlay Trucks and Trailers as a spare parts interpreter, working two to four hours per week for three days per week. He also suffered increased back pain at work and found it difficult to concentrate. On 30 August 2012 Banlay terminated his employment.
31 On 16 September 2012, Dr Krigsman provided a report which summarised the plaintiff’s condition since 2010. Dr Krigsman noted:
His condition has been a fluctuated gradual deterioration until some very recent improvement in Jun 2012, only to revert to acute lumbar pain and worse sciatica on 3rd September 2012.[37]
[37]PCB 36A.
32 Dr Krigsman noted that in September 2010 he prescribed Lyrica for sciatica after two weeks of bad back pain. By late April 2011 Dr Krigsman noted that “he is overall worse each year, now with cervical, thoracic as well as lumbar symptoms and signs”. On 23 May 2011, Dr Krigsman noted that the plaintiff’s level of fitness had plateaued and he could not lift his daughter for more than 30 seconds while standing and 3 minutes while sitting. He could not work at all. In June 2011 he was seen at the Pain Clinic and given Cymbalta and Panadol Osteo but the Cymbalta was ineffective and was ceased in August 2011. By February 2012 the plaintiff had attended the pain clinic three times. On 17 May 2012 he reported a four day history of worse lumbar pain and sciatica due to usual activities and was prescribed Panadeine Forte. On 5 July 2012 he was showing some improvement and had been off analgesia for two weeks. In September 2012 he presented having suffered acute lumbar pain and sciatica in the right leg while on the toilet.
33 Dr Krigsman concluded that “he will have a fluctuating course and the prognosis will be for a gradual deterioration of his lumbar vertebral column and spine at the level of his injuries over time”. He noted that the plaintiff is only 42 years old and has a permanent injury. He felt that conservative treatment “aiming for a positive attitude, strong core muscles, avoidance of obesity”, will help, and that the surgery will need to be considered in future “to avoid further nerve root damage than has already occurred’.[38]
[38]PCB 36D.
Plaintiff’s evidence
34 In his affidavits,[39] the plaintiff deposes to the fact that when he was working full time in light or modified duties after April 2008 his duties were causing him significant back pain and he had to take occasional days of off work. He was not able to get back to normal duties and was not surprised when his employment was terminated in March 2009. He has not been able to find any work. He did not feel that he could re-train.
[39]PCB 7-17.
35 As at 12 September 2012, the plaintiff stated that he has constant low back pain which varies in its intensity[40] and which is exacerbated by bending and twisting movements. When the pain is exacerbated, he feels “the back often tightens up and goes into a spasm”. The sharper pain will usually last a few hours, during which he stays still or lies down. He uses Panadol or Panadol Osteo at these times but they only take the edge off the pain.
[40]PCB 15.
36 He continues to have pain and numbness in both legs extending to the feet, the right leg worse than the left. He tries to go for short walks a few times each week. He finds sitting and standing painful after about 15 minutes and varies his posture throughout the day. He never feels comfortable. He has a two year old daughter but finds it very painful to lean over her to help with bathing or changing her nappy. He chooses carefully times when he feels up to shopping or mowing the lawn. He finds it hard to get to sleep or to stay asleep.
37 Losing his part time job three days per week as a spare parts interpreter has been a blow to him. He struggled with the computers in that job, and found that increased back pain during the day made it difficult for him to concentrate. Pain management treatment has not helped and surgery was not likely. He feels “overwhelmed by what has happened to me and utterly worn down by the constant pain”.[41]
[41]PCB 17.
38 At the hearing, the plaintiff agreed that he had experienced a number of flare ups of back pain as recorded by Mr Simm since July 2003. Some of these occurred at home when he “slept funny”. He does daily exercises but only walks if he has to and not for any distances. He goes shopping with his wife and daughter and is able to put his daughter’s pusher in and out of the car . He does no gardening because use of any vibrating tools sets off his right leg numbness. He has ceased hydrotherapy. His doctors told him to do as much as he can to stay normal but not to do what he cannot do. He was not confident about being able to work again because of a recent flare up of pain. He was unable to walk for three to four days and sat around waiting for the pain to subside. This kind of flare up has occurred five to six times since he stopped work. At present he is taking eight Panadeine Forte tablets per day and has been doing so for close to two months. He said that the tablets helped for a short time but do not work as well any more. Apart from getting medication from his doctor and advice about what he cannot do, such as lifting heavy weights, he is keeping active and mobile. He said that if he got a job he would take it.
Lay evidence
39 The plaintiff’s partner provided an unsigned typewritten letter dated 7 September 2012[42] in which she stated that she has been living with the plaintiff for 16 years. Prior to 2003, they shared the housework, gardening, washing and shopping, and enjoyed going for walks and picnics. They bought a Siberian Husky in 2000 and they walked him every day. They went out a lot with friends and the plaintiff was very social and happy. They enjoyed going out for the day, including to the beach.
[42]PCB 17A.
40 After 2003, the plaintiff was limited in the amount of time he could walk or drive. He became withdrawn and moody. His pain prevented him exercising much and his weight ballooned. He was anxious and had low self-esteem. Managing his pain during the work day exhausted him and he would come home unable to help with domestic tasks. He stopped walking the dog regularly, and would rarely go for long drives. The plaintiff stopped socialising with his wide circle of friends or family and preferred to spend time alone or with his best friend. Due to his back pain he has trouble playing, bathing or feeding their daughter. This places additional strain on their relationship.
41 She said that he told her using a computer at work left him anxious as he struggled with the concepts. She said that his injury “has impacted on every part of his life, and our life as a family”.[43]
[43]PCB 17B.
Legal principles
42 In order to make out the serious injury within paragraph (a) of the definition in s 134AB(37) of the Act, the plaintiff must establish that he has suffered a permanent serious impairment or loss of a body function, and that the consequences to him in terms of pain and suffering are, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked and as being at least very considerable.[44] The Court must consider the impairment of a body function suffered by the particular applicant, but the test also requires an objective comparison between the impairment suffered by the applicant and the range of possible impairments.[45]
[44]Accident Compensation Act 1985 (Vic) s 134AB(38)(c).
[45]Sabo v George Weston Foods [2009] VSCA 242, [66]; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181, [42] (Ashley J).
43 On the authorities, decisions as to whether an injury is serious involve elements of fact, degree and value judgment.[46] The ‘pain and suffering consequences’ of an injury encompass the plaintiff’s experience of pain and the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life. The intensity and frequency of the pain must be assessed in the light of the plaintiff’s evidence (which may be affected by the Court’s assessment of the plaintiff’s credibility), the treatment received, the medical evidence, and the objective evidence about the disabling effect of pain.[47]
[46]Fleming v Hutchinson (1991) 66 ALJR 211.
[47]Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 [9]-[12]; Sutton v Laminex Group Pty Ltd [2011] VSCA 52, [45]-[47] (Tate JA).
44 Where the plaintiff relies on impairment comprising the aggravation of a pre-existing condition, the plaintiff must establish that the impairment constituted by the aggravation amounts to a “serious injury”.[48]
[48]Barwon Spinners Pty Ltd & Ors v Podolak [2002] VSCA 33; Petkovski v Galletti (1994) 1 V R 436
45 In determining the application the whole of the evidence is to be considered, and a successful return to work by a stoic worker is not determinative against a worker on the issue of pain and suffering, particularly where the alternative employment found by a worker has not had the effect of reducing his symptoms.[49] What matters is the extent to which an area of work which the plaintiff enjoyed has been closed off to her or him.
[49]Sutton v Laminex Group Pty Ltd [2011] VSCA 52, 79 per Tate JA; Dwyer v Calco Timbers Pty Ltd (No.2) [2008] VSCA 260; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181.
46 Generally, the endurance of permanent daily pain requiring frequent medication “must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence”.[50]
[50]Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267, [199] (Dodds-Streeton JA).
47 Apart from the capacity for work, assessing the extent to which pain interferes with the ordinary activities of life will generally involve consideration of its effect on the plaintiff's sleep, mobility, capacity for self-care, performance of household and family duties, recreational activities, social activities, sexual activities and enjoyment of life.[51]
[51]Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69, [16]; Sutton v Laminex Group Pty Ltd [2011] VSCA 52.
48 Some weight must be given, in considering that the pain and suffering consequences of the plaintiff's impairment are at least very considerable, to the adverb “very”.[52] Each case has to be determined in the light of its own facts.[53]
[52]TAC v Dennis [1998] 1 VR 702, 703 (Callinan J).
[53]Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181.
49 Overall the Court must consider what the plaintiff has lost by virtue of the injury and what has been retained. The significance of what he has lost, which bears upon the seriousness of consequences, may be informed to an extent by what is retained.[54]
[54]Dwyer v Calco Timbers Pty Ltd (No.2) [2008] VSCA 260, [27]; Sutton v Laminex Group Pty Ltd [2011] VSCA 52, [95].
50 I am entitled to take into account that the plaintiff is 42 years old and that he will experience these pain and suffering consequences for a considerable period of time.[55]
[55]Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181, [44] (Ashley JA).
Findings and reasons
51 The weight of the medical evidence is to the effect, and I therefore find, that as a result of his work-related activities with the defendant, in July 2003 the plaintiff suffered an aggravation of pre-existing and largely asymptomatic degenerative changes in the lumbar spine, leaving him with a permanent impairment of the lumbar spine comprising a disc injury at L4/5 and L5/S1 as well as referred pain into the right leg.
52 I note the comments of Mr Simm and Dr Fraser about some symptoms not having an organic basis but I consider that these do not detract from the weight of medical opinion (including from Mr Simm, Mr Fraser, Mr McInnes and Mr Dooley) to the effect that his lumbar pain and sciatica are related to the pathology in the L4/5 and L5/S1 discs. I am unpersuaded by the assertion of Mr Clark assertions in 2009 and 2010 that any work related aggravation has resolved as his opinion has been overtaken by the defendant’s acceptance of liability in October 2010 and by later medical opinions to the effect that the work-related injury continued to produce organic symptoms in the lumbar spine. I note that both Dr Thomas and the neurologist to which Dr Thomas referred the plaintiff, Dr John Haywood, felt that the plaintiff was suffering from a nerve root problem in the right leg.
53 The weight of the medical evidence, which I accept, is to the effect that the work-related injury and resulting impairment has left the plaintiff permanently incapable of returning to his pre-injury heavy duties. I accept that at the end of his employment the plaintiff was not working unrestricted duties but was having regular rest breaks and not lifting heavy weights. I accept that the plaintiff struggled to manage his part-time alternative duties at Banlay. Given that the plaintiff left school at year 10 and has worked all his working life in manual jobs, the loss of the ability to do that work is a relevant consideration, particularly in the light of his failed experience at working with computers at Banlay.
54 I accept that the lumbar spine impairment suffered by the plaintiff has had a substantial impact on his life. He has constant back pain for which he generally does not take much prescription medication, except when he suffers exacerbations. These exacerbations may last for days and require treatment with Panadeine Forte. They leave him unable to walk properly and in severe pain, and he has to rest for a few days. There have been a substantial number of such exacerbations since the plaintiff stopped work. The most recent exacerbations have resulted in the plaintiff taking eight Panadeine Forte tablets per day for the past two months, and he continues to do so. Even with this medication, his pain is not fully alleviated. Dr Krigsman expressed the view that his prognosis was poor and it was likely that the fluctuating course of his condition would be permanent. Although the plaintiff is able to undertake his activities of daily living, he has to choose a good time to do household tasks. His ability to drive long distances, and to care for his two year old daughter, is affected. He finds it hard to get to sleep and to stay asleep.
55 In all the circumstances, I am satisfied that, when compared with other cases in the range of lumbar spine impairments, the pain and suffering consequences of the plaintiff’s lumbar spine impairment are “very considerable”.
Conclusion
56 Leave is granted to the plaintiff to bring proceedings for the recovery of damages for pain and suffering in respect of the injury to the lumbar spine suffered in July 2003 during the course of his employment with the defendant.
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