Beshara v Victorian WorkCover Authority
[2019] VCC 62
•7 February 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-18-02577
| ISAM GEORGE BESHARA | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 January 2019 | |
DATE OF JUDGMENT: | 7 February 2019 | |
CASE MAY BE CITED AS: | Beshara v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 62 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – impairment of the spine – pain and suffering only
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)(d)
Cases Cited:Barwon Spinners & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Peak Engineering & Anor v McKenzie [2014] VSCA 67
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N J Dunstan | Maurice Blackburn |
| For the Defendant | Mr C Miles | Wisewould Mahony |
HER HONOUR:
Preliminary
1 This is an application for leave to bring proceedings pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the WIRC Act”) in relation to an incident at work with Outdoor Living Solutions Pty Ltd (“the employer”) on 24 November 2011 (“the said date”).
2 The body function said to be impaired is the spine, involving both the thoracic and lumbar regions.[1]
[1]Transcript (“T”) 1
3An application in relation to the wrist was withdrawn at the start of the hearing, and at the end of the evidence, the application pursuant to ss(c) was also withdrawn.[2]
[2]T43
4 The plaintiff bears an overall burden of proof upon the balance of probabilities.
5 By s325(2)(b) of the WIRC Act, the impairment must have consequences in relation to pain and suffering which:
“… when judged by comparison with other cases in the range of possible impairments, or losses of a body function or disfigurement, as the case may be, fairly described [as at the date of the hearing] as being more than significant or marked, and as being at least very considerable.”
6 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
7 Subsection s325(2)(h) of the WIRC Act provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
8 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
9 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[3] and Grech v Orica Australia Pty Ltd & Anor[4] in reaching my conclusions.
[3](2005) 14 VR 622
[4](2006) 14 VR 602
10The plaintiff swore two affidavits and was cross-examined. He also relied on an affidavit sworn by his wife, Kirsten, on 21 January 2019, and his current supervisor at work, Lee Cairns, sworn 18 January 2019. Also in evidence were medical reports and other material. I have read all the tendered material.
The Plaintiff’s evidence
11The plaintiff is currently aged forty-one, having been born in March 1978.
12After completing Year 12 in 1996, the plaintiff started work in a family business operating supermarkets, milk bars and bottle shops, where he worked until 2011.
13As he wanted a change, in about July 2011, the plaintiff obtained work with the employer, a Mornington based company involved in the construction of pergolas. He started work as a labourer while he learned how to do the work, and was then promoted to builder, although he had no formal qualifications.
14The plaintiff worked five or six days a week, up to nine hours per day. He earned about $1,000 clear per week, and more if he worked on Saturdays.
15On the said date, the plaintiff was working up a ladder, pop-riveting roof sheets. He must have fallen from the top rung of the ladder and knocked himself out, or at least dazed himself, because his next memory was coming to on the deck (“the incident”).
16The plaintiff had pain in his head, neck, back and left hand, and was taken by ambulance to Dandenong Hospital. He understood he sustained a fractured left hand and a fracture to his back. He discharged himself, but went back to the Austin Hospital a few days later.
17The plaintiff had investigations and was prescribed some strong painkillers. He saw his general practitioner, Dr Keily, at the Mornington Coastal Medical Centre (“Mornington”) and was referred for physiotherapy.
18The plaintiff was unable to work. He struggled at home, with increasing depression, and he became addicted to pain medication.
19Following discharge, the plaintiff took OxyContin and Endone prescribed at the Hospital. He recalled struggling with OxyContin three or four months after the incident.[5] He was addicted to these medications.[6]
[5]T6
[6]T7
20 Dr Keily prescribed Oxycodone at the end of 2011, with the last recorded prescription in May 2012. The plaintiff agreed, as the clinical notes indicated, the last prescription for Endone was on 28 August 2012; however, he denied he was last prescribed Panadeine Forte in May 2014. He was later prescribed that medication by a doctor at Mornington.[7]
[7]T9
21The plaintiff could not recall telling his doctor on 5 January 2012 that his pain levels had significantly dropped and he was using Panadol; however, if that was what the doctor noted, the plaintiff would accept that was accurate.[8]
[8]T6
22In about mid-2012, the plaintiff was prescribed anti-depressants and muscle relaxants. Over time, his life spiralled downwards and he started to use “ice”. He had smoked marijuana socially as a young man, but did not have any problems with drugs prior to the said date.
23The plaintiff confirmed this level of pre-incident drug use. He probably started marijuana in his late teens on a social basis with a group of mates at a party. He did not recall smoking “speed”, as his doctor’s note of 10 February 2011 indicated.[9]
[9]T11
24Prior to the incident, the plaintiff had never had any psychiatric treatment. He had not sought or required any intervention because of marijuana use.[10]
[10]T41
25 The plaintiff did not remember problems with anxiety in February 2011 and being prescribed Valium. He denied having problems with anxiety from the time he was a teenager.[11]
[11]T11
26 Any anxiety pre incident was nothing like the plaintiff experienced thereafter. Dr Heffernan got a lot wrong in his history. It was incorrect that the plaintiff had episodic depression from the age of twenty.[12]
[12]T19
27 The plaintiff could not remember discussing his drug use with Dr Hayman. He had problems with his memory.[13] He agreed he would have been smoking 2 grams of marijuana a week in 2011 if that was what Dr Hayman recorded, but he honestly could not recall.[14]
[13]T12
[14]T13
28In May 2012, the plaintiff was referred to Mr Stapleton, psychologist, who gave him counselling for about six months.
29As a result of his depression and drug use, the plaintiff’s marriage struggled. He was aggressive and not safe around his children. For a long time, he lived under the same roof as his wife, but they kept separate bedrooms. In September 2015, he moved out and back to his parents’ house.
30As of August 2017,[15] the plaintiff was living with his wife again, but they were not really a couple and she was more of a carer. She managed their finances, as in the past he could not be trusted with money. His children were distressed and had been seeing a school counsellor.
[15]Date of first affidavit
31The plaintiff then tried to do some domestic duties, but struggled with vacuuming or any heavy garden work. Often his father-in-law mowed the lawn which made the plaintiff feel pretty hopeless.
32The plaintiff had not been interested in socialising because of his injury and his mood and drug problems. He found it difficult to see friends as he observed how they were succeeding in life compared to his own life, and that made him feel even more depressed.
33Pre-incident, the plaintiff played basketball and kicked a football with mates and his children. He played golf with friends and his father-in-law. He was now unable to manage these activities without increasing back pain and, as a result, did not engage in sports.
34Pre-incident, the plaintiff enjoyed family trips walking in the Dandenongs and fishing on the Tambo River. He no longer enjoyed those activities because of his back pain and also his depressed mood.
35Post-incident, the plaintiff was not able to return to work in construction, and in 2014, he obtained a Certificate III in Aged Care. He worked at Domain By The Bay for approximately three to six months; however, he found that job difficult because of ongoing back pain, and he had particular difficulty when bending or lifting. He also did a little work in the family-owned bottle shops.
36In early 2015, the plaintiff obtained work with Coca Cola in Moorabbin as a machine operator. He was using “ice” at that time and was unreliable. Late that year, he obtained a s98 benefit, which he spent on drugs.[16] He was out of control and given the sack. It was about that time he moved to his parents’ place.
[16]T16
37The plaintiff agreed, as of February 2015, he was still having problems with anxiety.[17]
[17]T16
38In January 2016, the plaintiff was apprehended by police while driving dangerously. He was out of control and was admitted to the Northern Hospital. He did a detox course in Ivanhoe, where he was an inpatient for a week and then had day visits for six weeks. He had managed to stay off ice since that time.[18]
[18]T17
39On this admission, the plaintiff was really suffering problems with “ice.” He could not recall what he told the Hospital at that time as he “was not in the right state of mind”.[19] He agreed, when using “ice”, it made him paranoid, irritable and difficult to get along with.[20]
[19]T14
[20]T16
40The plaintiff denied he had been using marijuana for twenty years as the Hospital note recorded. He was not a chronic marijuana user. He started taking marijuana at the end of Year 12.[21]
[21]T15
41 After this hospital admission, the plaintiff was put into a detox program, then rehabilitation for six weeks. He then started using synthetic marijuana. That became a problem for him in terms of his social relationships and led to a referral to psychiatrist, Dr Heffernan, whom he first saw in September 2017 for treatment.[22]
[22]T17
42 The plaintiff disagreed, as Dr Heffernan noted, that he had a history of serious drug dependence since his late teenage years.[23] He did not have a drug problem as a teenager and he was not dependent on any drugs prior to the incident.[24]
[23]T17
[24]T18
43 The plaintiff confirmed Dr Heffernan diagnosed ADHD.[25] He prescribed medication for that condition which counteracted with the synthetic marijuana.[26]
[25]T18
[26]T19
Work
44After his injury the plaintiff was unable to return to work in construction and in 2014 he retrained by obtaining a Certificate III in Aged Care and found work difficult because of ongoing back pain and particular difficulties bending or lifting. He also did a little work in family owned bottle shops.
45In early 2015, the plaintiff obtained work with Coca Cola Amatil in Moorabbin as a machine operator. He was using “ice” at that time and was unreliable. In late 2015 he obtained a lump sum impairment benefit which he spent on drugs. He was out of control and was given the sack. It was about this time that he moved to his parent’s place.
46As of August 2017, the plaintiff was employed at “Sunbather” in Hastings, a company that made solar pool heating and pool covers. [27] He obtained this job through a friend. He commenced work on a casual basis in late 2016, and from 1 July 2017, had been working as a permanent full-time employee.
[27]A number of photographs of the pool covers the plaintiff produces were tendered
47The plaintiff was not very reliable and had about four days off work each month. He took time off because of both pain and anxiety, and realised that if the boss was not a friend, they probably would not employ him.
48When the plaintiff got home from work he was in pain. He took pain medications and ate before going to sleep. He ate a lot and had gained about thirty kilograms since his injury. He usually woke during the night, sometimes on numerous occasions, and had a cigarette.
49The plaintiff continues to work at Sunbather full time, eight hours a day.[28] His employer is aware of his back injury and his medication intake[29] and is very supportive. The plaintiff is not required to do any heavy lifting and gets assistance from co-workers with any necessary lifting. He agreed his current work is apparently going pretty well.[30]
[28]T39
[29]T28
[30]T24
50 At work, the plaintiff could be on a milling machine drilling out metal to make pool covers. He could be on a saw cutting metal and steel, or using the metal lathe machining metal. The piece of metal in this process could weigh about a kilogram. The heaviest metal the plaintiff would carry alone would be about 10 kilograms. He agreed that various doctors advised a lifting limit of 10 to 15 kilograms.[31]
[31]T26
51 The plaintiff then said he would not be lifting this type of weight alone. He would be doing so with a co-worker. The metal bar was about 5 metres long and he and a co-worker each would have one end of it. It weighed about 15 kilograms and up to 18 kilograms. The heaviest piece of steel the plaintiff would fetch on his own would weigh less than 10 Kilograms and be about 3 metres long.[32]
[32]T27
52 The plaintiff agreed with the description of his current duties recorded by Katrine Green, Mr Jones, and also Dr Slesenger.[33]
[33]T29
53 The plaintiff agreed he is working as a forklift driver and metal fabricator. He obtained his forklift licence in his current job. He is required to fashion metal covers weighing between 10 and 15 kilograms. He works on a lathe and a Miller machine, and with welding equipment. He is required to stand and forward reach, but not over shoulder reach. He can adjust his posture regularly.[34]
[34]T29
54 The plaintiff rotates these duties with four or five other workers. He is on light duties and he does not do anything strenuous. His boss knows about his injury.[35]
[35]T30
55 The plaintiff agreed he enjoyed his work and it is going pretty well.[36] Initially, he said he was earning more in his previous job but then agreed his income is now pretty much what it was in 2011.[37]
[36]T36
[37]T35
56In the last year, the plaintiff has taken at least thirty days off work because of his back injury. Some of the absences have been taken as sick leave and others as part of annual leave.
57The plaintiff confirmed these incident related absences.[38] He does not, honestly, have the best memory, and he does not recall the time he has had off in recent times.[39] He does not require a medical certificate and just normally texts his employer if he is not coming in.[40] By the end of the week, he is that exhausted and his back is that sore he cannot do overtime.[41]
[38]T32
[39]T34
[40]T42
[41]T33
Current treatment
58The plaintiff continues to see Dr Keily regularly for his back pain and for his psychological condition, as well as any other health problems.
59The plaintiff has not been referred to a specialist for his back. It was suggested he see a pain management specialist, but he never followed it up.[42] He cannot recall his general practitioner telling him to see a specialist. The plaintiff has not had any investigations since 2012.[43]
[42]T39
[43]T40
60The plaintiff is currently being prescribed Panadeine Forte, Voltaren and Mobic for his back pain by Dr Keily. He takes Panadeine Forte as needed, normally four times a week, and he is taking Voltaren and Mobic daily.[44]
[44]T10
61The plaintiff obtained Panadeine Forte from his general practitioner late last year and has a current prescription.[45] He was also prescribed this medication by a dentist in Mornington, last year, when he had his top teeth replaced.[46]
[45]T40
[46]T37
62The plaintiff was prescribed Mobic on 24 September 2018 and has a current script for that medication. Prior thereto, he had been taking his father-in-law’s Mobic. He has told his general practitioner that he was using this medication.[47]
[47]T41
63The plaintiff had not taken “ice” at all since he swore his previous affidavit. He had stopped using synthetic marijuana and very occasionally uses regular marijuana. He currently smokes a joint once every two weeks or so.[48]
[48]T23
64The plaintiff stopped seeing a psychologist or psychiatrist, mainly because he could not afford to pay for the treatment. He is currently relying on medication to help control his psychological condition. He understands he will most probably need to start seeing a psychologist or psychiatrist again for ongoing treatment at some stage in the near future, and his wife wants him to start doing so again as soon as possible.
65On 3 May 2018, the plaintiff had to be admitted to Frankston Psychiatric Hospital for five days after a psychiatric episode.[49] As the notes of that attendance set out, the plaintiff was then having marital problems and family issues. He could not remember telling Frankston Hospital that he had used cannabis for twenty-two years.[50]
[49]T20
[50]T21
66As a consequence of his back injury, the plaintiff’s need to take medication for his psychological condition and inability to exercise, he has put on a lot of weight. For his depression and anxiety, he is taking Seroquel, Serepax and Valium, and a mood stabiliser, Lamotrigine. He takes Seroquel twice daily and Serepax to help him sleep at night. He takes Valium about every second day and the mood stabiliser twice daily, and had been doing so for about two weeks since the start of this year.
67The plaintiff has been taking Valium regularly. While he had taken it in February 2010, it is nothing like what he now takes.[51]
[51]T37
68The plaintiff continues to struggle psychologically as a consequence of his back injury and has recently starting taking a mood stabiliser because of becoming suicidal again. He has struggled with such thoughts from time to time since the incident. He relies on medication every day to help control his psychological condition. He is very anxious about the future because of his back injury, particularly if he were to ever lose his employment with his current employer.
69 The plaintiff agreed that his synthetic marijuana use up until his admission to Frankston Psychiatric Hospital in May 2018 was disruptive of his relationships and his enjoyment of life.[52] As a result of his drug use, his lifestyle generally had been affected in terms of sociability and family relationships. He does not see any of his old friend and avoids his drug associates at all costs.[53]
[52]T19
[53]T37
Back pain
70As of August 2017,[54] the plaintiff’s back pain was constant, although it varied in intensity and location. It was usually in his lower or mid back. He also got pain into his left leg and sometimes had pins and needles in his left foot. He sometimes had spasms, which were excruciating. His pain was increased by bending, standing or walking, or sitting for more than about twenty minutes, and he usually fidgeted if he stood or sat for too long.
[54]First affidavit
71The plaintiff continues to suffer constant daily back pain in the middle of his lower back. His leg pain has improved since January 2017 and he no longer suffers from it.[55]
[55]T36
72The plaintiff continues to suffer from regular muscle spasms at least a few times a week. His back pain is aggravated by any prolonged bending, standing, sitting or walking, and at work he has to regularly change his position because of this pain.
Domestic situation
73The plaintiff now lives with his wife, parents-in-law, stepson aged twenty-two, and the boys he has with his wife, who are eleven and nine. He recommenced living with his wife in the middle of last year. They moved in with her parents because of their financial situation.
74At home, the plaintiff is restricted as to what housework he can do because of back pain. He does not do any heavy lifting and does very little vacuuming. He does not mow the lawns because of his back injury, and has to get his father-in-law to do that task.
75The plaintiff agreed his marriage was going okay now, having had a difficult time for a long time. His mother-in-law manages the household and does the gardening, as she loves it. Mainly his parents-in-law look after the house because it is theirs.[56]
[56]T40
76The plaintiff agreed, domestically, he is going a bit better now, living with his wife and children. He helps out with his son’s basketball team.[57]
[57]T38
77 The plaintiff is capable of looking after his personal hygiene tasks.[58]
[58]T39
78The plaintiff’s sleep is disturbed by back pain and his psychological condition and he relies on medication to help him sleep. He disagreed he had problems sleeping for years prior to the incident because of drugs, as Dr Heffernan reported.[59]
[59]T19
79The plaintiff agreed he had had difficult sleeping patterns for a number of years because of his “ice” addiction, and he currently takes medication to help him sleep.[60]
[60]T39
Social and sporting activities
80The plaintiff’s socialising continues to be restricted by his back injury. He has recently been trying to socialise more but continues to be restricted by his back and needs to rest his back after work.
81As a result of his back injury, the plaintiff continues to be greatly restricted regarding sporting activities. Prior thereto, he was very active and used to go jogging and bike riding very regularly, normally at least five times a week. He can no longer do either of these activities because of his back injury. He has also given up playing golf because of the injury. Prior thereto, he used to play golf about once a week, weather permitting, with a group of friends.
82The plaintiff has not tried to play golf since the incident. He probably swung a club once or twice into a net at a practice range in Mt Martha but just could not do it. He used to take his kids to the range to collect golf balls.[61]
[61]T38
83The plaintiff no longer kicks the football or plays basketball with mates because of his back injury, having done so fairly regularly prior to the incident.
84Further, pre-incident, the plaintiff also used to enjoy fishing. In the most recent school holidays, he tried fishing with his children on one occasion. He lasted only about two hours before being forced to stop. He had problems casting the line and found it very uncomfortable sitting or standing on the riverbank as his wife confirmed. He no longer goes boat fishing because the jerking motion when the boat is in the water causes him increased back pain. Prior to the incident, he went out fishing in a boat regularly over summer.
Lay evidence
85The plaintiff’s supervisor in the metal department at Sunbather, Lee Cairns, swore an affidavit on 18 January 2019.
86Mr Cairns has known the plaintiff for about five years. Mr Cairns’ wife is a good friend of the plaintiff’s wife. The plaintiff started work with Sunbather about two and a half years ago. He is employed full time as a factory hand and works under Mr Cairns’ supervision.
87Mr Cairns has always been aware of the plaintiff’s injuries. The plaintiff is well respected in the workplace and they do what they can to help him out. His job involves minimal heavy lifting and his co-workers do the heavy lifting for him or assist him as required.
88In the last year, the plaintiff has had eighteen recorded unplanned absences or sick days, which Mr Cairns understands to be related to his injuries. In addition, it is possible the plaintiff has had further time off work which he has taken as annual leave; however, Mr Cairns is not privy to that information.
89The plaintiff’s wife, Kirsten, swore an affidavit on 21 January 2019.
90Kirsten met the plaintiff for about fourteen years ago when he was working at his family shop and she was working nearby. They commenced a relationship and later married in January 2007. Kirsten has one child from a previous relationship and she and the plaintiff have two children together.
91Before his injuries, the plaintiff was always very upbeat and easygoing. He had a strong work ethic and was always working. He worked every day and late hours in his family shop. He had a large network of friends and was very social. He often socialised with friends at the shop, went out with friends and played cards at his friends’ houses. He also enjoyed playing football and going fishing.
92The plaintiff and Kirsten started living together shortly after they were married. He was very houseproud. They shared responsibility for managing the finances, but he was more domesticated than her and did most of the cooking and cleaning. He was also really hands on with the children. Despite working every day, the plaintiff would still get up in the night to the children. During the day, he took them bike riding and fishing, kicked the football with them or collected golf balls.
93After the plaintiff’s injury, Kirsten was the one working and the plaintiff was at home, although he was accustomed to working. He became very antisocial and isolated and shut out his friends.
94The plaintiff no longer enjoys social events and Kirsten has to nag him to come to things. She cannot take him to the school because she is embarrassed by how he will act. He is just not the same anymore, has no motivation and really needs a push to do anything. That situation is exhausting for her. Everything is an effort. She has to drag him out of bed to go to work and this causes arguments. This situation has also had an effect on their children who have had to seek counselling.
95The plaintiff’s injuries have had a big impact on their marriage. Kirsten has effectively been his carer for a long time. They separated for various periods but continued to try and save the relationship. It is hard work, but she did not want to give up. Since the plaintiff got out of the psychiatric ward, they have been trying to give it a real go.
96At home, the plaintiff complains of pain most days and is often getting up and down to change his posture and sometimes needs to go and lie down. At night, he tosses and turns in bed because of back pain. She often sleeps in the spare bed in the boys’ room.
97The plaintiff is unable to help out with heavier housework like vacuuming, and no long mows the lawns. If he tries to do so, he is in agony afterwards. When a passenger in her car, the plaintiff holds onto the seat and handle. He struggles with jerky movements, even if she tries to drive really carefully.
98The plaintiff has gained a lot of weight from the medications he is taking and from being inactive. He no longer jogs, rides a bike or plays golf like he used to. She tries to encourage him to be active. He can only manage short distances walking or jogging. He is unable to go out fishing in boats as jerky movements aggravate his back pain. They recently tried fishing at a river with the children, but the plaintiff had trouble casting due to his back pain.
99Kirsten misses the upbeat, active person the plaintiff was previously, and she does not think he will ever be like he used to be.
The Plaintiff’s medical evidence
100The ambulance report of 24 November 2011 set out the following:
“33 year old male who was standing on ladder, fell approximately 2 metres onto timber decking. Patient states landed on buttock and lumbar region of back? Initially short period of LOC (unable to advise incident) fully aware of all other questions. Patient landed in prone position, complained of severe lumbar back discomfort. No neuro deficit, no head strike, AV called.”
Treaters
101The plaintiff’s general practitioner, Dr Keily, from Mornington has provided a number of reports.
102In his report of 21 May 2013, Dr Keily confirmed the incident in which the plaintiff suffered a fractured left hand and fracture at Transcript page 10. He noted at that stage, the plaintiff’s wrist recovered completely.
103The plaintiff’s mid back pain persisted, preventing him from returning to work as his job did not involve any light duties, and he could only drive for thirty minutes.
104The plaintiff gradually became depressed at not being gainfully employed, and he suffered marital stress and separated from his family in May 2012. He continued regular physiotherapy and analgesia. His mental state deteriorated and he became anxious and agoraphobic, with significant sleep disturbance such that anti-depressants were started in July 2012 and he was referred to Mr Stapleton for counselling.
105There was a change of physiotherapy management in August 2012 and by then, the plaintiff was responding to anti-depressants and his back pain was improving.
106Dr Keily noted the plaintiff had a vocational assessment and started training as a personal care assistant in an aged care facility in March 2013.
107Dr Keily reported as at May 2013, the plaintiff’s back continued to cause discomfort and restriction of heavy activities, and he managed on reducing doses of analgesics.
108Dr Keily then thought the plaintiff was fit for more sedentary work of a lifting assisted vocation in aged care. He was unlikely to be fit for heavy manual work in the future.
109Dr Keily anticipated the plaintiff’s back pain would gradually settle, but that he would have recurrent episodes of pain as a result of day-to-day activities. Future management would be of a conservative nature with simple analgesics and exercises, and he thought the plaintiff would continue on anti-depressants for at least another six months.
110In his February 2017 report, Dr Keily confirmed the plaintiff continued to receive treatment for his long-term back pain sustained in the incident. He had long-term physiotherapy which reduced his thoracic pain to a level such that he was able to do retraining for light activity occupations, and worked for varying periods in aged care and as a delivery driver.
111Dr Keily noted the plaintiff’s chronic pain contributed to the development of an anxiety depressive illness, for which he was prescribed anti-depressants and had counselling. Long periods of unemployment, poor education, anxiety, depression, pain condition and previous long-term exposure to marijuana led to experimentation with crystal methamphetamine and the plaintiff quickly developed into a regular user and had a subsequent addiction, culminating in arrests for drug possession and dangerous driving in 2016 and then an admission for detox in Frankston and Northern Hospital. He subsequently underwent rehabilitation programs.
112Dr Keily noted the plaintiff spent about $18,000 during a drug binge, and as of February 2017, continued to abuse synthetic cannabis and other caffeine compounds that he claimed helped relieve his pain.
113The plaintiff’s marriage had endured severe stress and he spent a lot of time living with his parents, but was then back with his wife and family. He was working as a sheet metal worker.
114Dr Keily noted the plaintiff continued to suffer chronic back pain for which he regularly used muscle relaxant, Valium, and analgesia, Tramadol. He remained on a major tranquiliser to suppress hallucinations and agitation relating to his past “ice” use and still took a regular anti-depressant.
115Dr Keily diagnosed chronic thoracic back pain, aggravated chronic anxiety and depression, and secondary illicit drug use. He anticipated the plaintiff would continue to suffer chronic thoracic back pain and have exacerbations that would restrict his work capacity and lifestyle. He thought the plaintiff would require long-term assistance with low-grade analgesia, anti-depressants, psychological services and vocational assessment.
116Dr Keily considered the plaintiff was fit for full-time work in medium-light duty vocations and that the psychological injury was likely to persist until a number of factors were managed.
117In his most recent report of October 2018, Dr Keily noted the plaintiff had stopped using “ice” in about March 2017, and had recently stopped using synthetic marijuana after hospitalisation with a drug-induced psychosis in May 2018.
118The plaintiff was maintained on a relatively low dose of tranquilisers, was still troubled with some paranoia relating to his wife and was vulnerable to panic attacks.
119Dr Keily noted the plaintiff somehow had managed to maintain full-time employment in 2017 working as boilermaker, fabricator and machine operator. He tried to work long hours as he felt that fatigued him so it was easy to sleep. That also meant extra income which helped financially. Panic episodes only seemed to occur outside work.
120Dr Keily noted the plaintiff continued to experience daily pain in the thoracic and lumbar areas, worse in the morning, seven out of ten, and reducing as the day progressed to three out of ten. He regularly used anti-inflammatory medications, Voltaren and Mobic, alternatively. He modified his work so he avoided any lifts over twenty kilograms and regularly obtained assistance with awkward lifts.
121Dr Keily thought the plaintiff had only a partial capacity for pre-injury employment as he is unable to lift any heavy weights overhead, which is an essential part of his job as a landscaper/pergola carpenter. He considered the plaintiff very capable of performing duties in his current employment or any like vocations, albeit with lifting restrictions, noting he was currently able to work thirty-eight to forty-five hours per week.
122Dr Keily thought the plaintiff’s back injury had stabilised. His level of disability and discomfort may improve with time, such that he will be able to get by with less use of anti-inflammatories, but he felt that the plaintiff would always have to modify his activities to reduce the amount of back pain. Apart from intermittent massage and heat therapies, he could see no other useful treatment available to the plaintiff.
Investigations
123A CT scan of the thoracolumbar spine was carried out in May 2012. It was reported there was a slight depression and end plate irregularity of the superior aspect of the T10 vertebral body in keeping with the known previous fracture.
124At L5-S1 level, there was a shallow, broad-based disc protrusion which was mild, mainly midline in location. It impinged slightly on the thecal sac. At L4‑5, there was disc bulging, which also impinged slightly on the thecal sac. No disc protrusion or disc bulge was detected at other levels and the facet joints and sacroiliac joints appeared normal.
125It was concluded there was an old superior end plate fracture at T10 level, L4‑5 disc bulge and small midline disc protrusion at L5-S1.
The Plaintiff’s medico-legal evidence
126Dr Roy Karna, rheumatologist, examined the plaintiff on behalf of Gallagher Bassett Services in October 2015 for the purposes of an AMA assessment.
127At that stage, the plaintiff was working full time with Coca Cola, filling machines. He had had that job for twelve months and it allowed posture changes, which he found necessary because of his back injury. Prior to that, he had done some work as a personal care assistant, but could not cope with it because of his back injury.
128The plaintiff reported that his thoracic back pain continued, as did his low back pain. Over time, the lower back discomfort had become of equal severity to the thoracic back pain. It radiated into the left buttock, having previously gone down the left leg, but that was no longer an issue. His back pain was made worse by bending and twisting, and coughing and sneezing increased the lower back and thoracic back pain.
129The plaintiff reported he could stand for fifteen minutes to half an hour and sit for forty-five minutes. Walking was not an issue.
130The plaintiff reported he had constant back discomfort and he was taking either Naprosyn Slow Release or Voltaren or paracetamol, and he admitted to smoking marijuana to help him with his back pain. He said he also experienced panic attacks. Besides seeing his general practitioner, no other treatment options were being considered.
131The plaintiff advised he could attend to aspects of personal hygiene unaided and on most days, he copes when putting his shoes on, but some days it is difficult to bend to that effect.
132On examination, the plaintiff walked with a slightly stooped posture. He had thoracic back pain. Lumbar extension was irritable. Movements to the left were more restricted than to the right.
133Dr Karna concluded that the plaintiff clearly sustained a definitive thoracic spinal injury in the incident. He noted a Medical Panel opinion of December 2014 wherein a lumbar spine film was reviewed, suggesting some disc disease at L4‑5 and L5-S1 level.
134On that basis, from a diagnostic perspective, Dr Karna believed the plaintiff had residual symptoms and dysfunction of the lumbar spine as a result of soft tissue injury treated conservatively.
135The plaintiff was examined by Professor Richard Bittar, consultant neurosurgeon, in August 2018.
136The plaintiff then complained of back pain radiating from the lower thoracic region through to the entire lumbar region. It was constant and varied in character and was sharp, stabbing and aching.
137The plaintiff advised his back pain has an average severity of six out of ten, with a maximum of eight. It is exacerbated by walking for more than thirty minutes, sitting and standing for more than twenty minutes, bending or twisting, forceful pushing or pulling, coughing, sneezing or straining, and lifting more than fifteen to twenty kilograms. It improved with recumbency, frequent postural changes, heat packs and medications.
138Professor Bittar noted the plaintiff experiences occasional pain radiating to his legs, usually the right. The leg pain is sharp, stabbing and aching at times. It generally radiates through the hamstrings to his knee. His leg pain is slightly less severe than his low back pain. He typically experiences episodes of leg pain twice a day and these usually last for about an hour.
139The plaintiff’s daily medications included Voltaren, Seroquel and sleeping tablets.
140The plaintiff reported he socialised less due to sitting and standing intolerance, severity of pain, medication side effects and strengths, and concerns about re‑injury. His recreational activities were severely limited and he no longer rode horses, played football or golf or rode bikes. His sleep was moderately disturbed and his domestic activities were moderately restricted. Overall, his quality of life was moderately diminished.
141Professor Bittar noted the plaintiff currently works as a factory hand forty hours a week on normal duties. He experiences significant pain during the course of his current workplace activity.
142On examination, there was mild restriction of lumbar spine flexion and moderate restriction on extension. There was mild restriction of thoracic spine rotation to each side. There was bilateral thoracolumbar tenderness from the mid-thoracic region to the lumbosacral junction, and there was palpable muscle spasm. There was no evidence of abnormal illness behaviour.
143Professor Bittar was not provided with any radiological reports. He thought the plaintiff presented with a T10 fracture and aggravation of lumbar spondylosis. He recommended a continuation of the current treatment regime.
144Professor Bittar noted the plaintiff was currently capable of working in a light physical role if there was no heavy lifting, with minimal bending and twisting. The plaintiff estimated he had about twenty-eight to thirty sick days a year as a result of his back pain. Professor Bittar thought the plaintiff’s work capacity was unlikely to improve in the future.
145Professor Bittar considered the plaintiff cannot return to full-time or unrestricted work in a pre-injury position considering his physical injury alone. He does have a realistic capacity for work and is currently working full time. He does require frequent days off due to flare-ups, and the partial incapacity is likely to persist into the foreseeable future.
146Dr Brendan Hayman, consultant psychiatrist, examined the plaintiff in September 2018.
147A number of matters of history noted by Dr Hayman were relied upon by the defendant.
148Dr Hayman concluded that diagnostically, the plaintiff developed a Chronic Adjustment Disorder with Depressed and Anxious Mood consequent to the work-related injury. He then developed prescribed opiate abuse. He also developed significant substance abuse and dependence, including cannabis, synthetic cannabis and crystal methamphetamine (ice).
149By DSM-V criteria, Dr Hayman thought these meet the criteria for crystal methamphetamine, cannabis and synthetic cannabis use disorders. These are all currently in remission. The plaintiff developed associated drug-induced psychoses, also in remission. He has also developed a panic disorder with a degree of agoraphobia that is ongoing.
150When asked to estimate the plaintiff’s present and future capacity for work, Dr Hayman simply noted he was currently working full time.
The Defendant’s medical evidence
Notes from Mornington:
151 On 10 February 2011, Dr Kotsimbos noted:
“Gets anxious, worse in crowded placed, mood fluctuates, smokes speed, dope – works in family business. Valium prescribed.”
“Encourage to stop - he is not keen, going to QLD – wants to try not taking anything in Queensland [going with family].”
152 Dr Keily prescribed Oxycodone on 1 December 2011, as well as Valium, which had been earlier prescribed in February 2011. There was a further prescription of Oxycodone on 22 December 2011.
153 On 5 January 2012, Dr Keily noted:
“Pain levels significantly dropped
– using Panadol only
starting hydrotherapy – massage next week.”
154 On 3 February 2012, Dr Keily noted:
“No analgesic use
coping with physio/hydro
keen for RTW.”
155 On 14 February 2012, Dr Keily noted:
“Seeing physio 2/wk
Still getting mid tTx discomfort (currently taped)
no work duties available for him with current employer
– all heavy lifting /digging.”
156 There were further complaints of thoracic pain on 16 March and 5 April 2012. Voltaren was commenced on 23 March 2012 and Panadeine Forte was added on 5 April that year.
157 On 7 May 2012, Dr Keily noted a flare-up of lower back pain last week.
158 On 21 May 2012, Dr Keily noted the need for an alternative duties certificate.
159 The Mornington medication records to 24 September 2018 indicated as follows:
·Valium, first prescribed 10 February 2011
·Oxycodone and Valium prescribed 1 and 22 December 2011
·Panadeine Forte prescribed 5 April 2012
·Voltaren prescribed 23 March 2012
·OxyContin prescribed 3 May 2012
·Panadeine Forte prescribed 11 May 2012
·Endone added 28 June 2012 and last prescribed 28 August 2012
· Mobic prescribed 24 September 2018.
160 Dr Heffernan, consultant psychiatrist, wrote to Dr Keily on 6 September 2017.
161 Dr Heffernan advised that the plaintiff had a history of serious drug abuse/dependence since his late teenage years. He also noted the plaintiff also had a history of longstanding sleep difficulties, with initial and middle insomnia long-term. He experienced his first episode of anxiety from around eighteen and that had continued to the present time. He had also had episodic depression from twenty.
162 Dr Heffernan advised, on systematic questioning, the plaintiff is also a case of lifelong ADHD, with difficulties in attention, focus and concentration, evident in early high school years, which had essentially derailed all of his adult life through the common occurrence of self-medicating with recreational drugs; initially with cannabis in his teens and twenties, moving on to methamphetamine, until a drug rehabilitation program in early 2016, and synthetic cannabis since then.
163 Records from Peninsula Health indicate the plaintiff attended Emergency and was admitted on 25 January 2016.
164 The principal diagnosis was simple intoxication of other or multiple drugs. Further, it was noted the plaintiff was a thirty-seven-year-old male who presented with paranoia and sleep disturbance post-drug use. It was noted he was a chronic marijuana user for up to twenty years and used “ice” every day. He was complaining of suicidal ideas, no particular plan.
165 The plaintiff was admitted to Frankston Hospital on 3 May 2018 and discharged six days later. The principal diagnosis was substance dependence and the additional diagnosis was drug-induced psychosis.
Medico-legal examiners
166 The plaintiff was seen by Mr Battlay, surgeon, on 15 November 2013 in relation to his weekly payment entitlements.
167 The plaintiff then described pain in the thoracolumbar junction after sitting or standing for forty-five minutes to an hour and complained he could not bend for long periods.
168 The plaintiff was only restricted in terms of his previous sporting activities and he would not play golf and did not do any boxing.
169 Mr Battlay noted that, as part of his return-to-work plan, the plaintiff had completed a PCA course, but had too much back pain when required to do 100 hours of voluntary work experience the previous year. He noted that WorkCover had suggested the plaintiff go back to security work and a course had been offered by Connect. The plaintiff was motivated to redeploy in that occupation and anxious to complete the course because there seemed to be more work in the security field than where he trained for PCA work.
170 On examination, the plaintiff presented in no obvious discomfort. He held his lumbar spine in a normal posture. Extension and flexion were uncomfortable.
171 Mr Battlay did not have available the 2012 investigation.
172 Mr Battlay concluded the plaintiff had suffered a left wrist fracture and T10 minor compression fracture in the incident. He thought he had made a full recovery and in his view, current nuisance value symptoms should not continue. In his view, the plaintiff was fit for unrestricted duties and he had fully recovered.
173 Mr Ian Jones, orthopaedic surgeon, first examined the plaintiff in January 2018. He did not have available the May 2012 CT scan.
174 The plaintiff told Mr Jones he was forced to cease work in aged care because of back pain and then worked for eight months in the family business, simply serving customers.
175 The plaintiff then worked at Coca Cola, possibly in 2015, for about a year, operating a machine which filled Coke bottles. He was using “ice” a lot of this time, and after three weeks off work, admitted he had a drug problem, and then resigned and underwent detoxification.
176 The plaintiff reported he loved his job at Sunbather, which he started at the end of 2016, although he stated he had to have time off work from time to time due to back complaints.
177 On examination, the plaintiff reported mid and lower back pain present 80 per cent of the time. These symptoms could be aggravated by simply getting out of a car or bending down to put his shoes on. He advised, since his back injury, he had been unable to play social golf or go fishing as he could not drive for long.
178 On examination, the site of pain was indicated to be in the mid to lower thoracic spine. Subjectively, there was some slight tenderness diffusely in the area, with a separate area of pain at L4-5. There was slight limitation in thoracolumbar flexion and extension.
179 Mr Jones thought the plaintiff had suffered a minor fracture involving the T10 vertebra in the thoracic spine and an undisplaced fracture in the left hand. The effects of that injury had completely resolved, but he had been left with some pain symptoms in his lower thoracic spine and also had some lower lumbar back pain complaints.
180 Mr Jones noted the spinal injury had mildly impacted upon the plaintiff’s range of spinal movement and caused episodic evidence of pain requiring occasional days off work. He thought there were no functional symptoms or signs in the plaintiff’s presentation.
181 Mr Jones considered the plaintiff’s thoracic spinal fracture limited him to undertaking extremes of heavy lifting and bending, and a lift limit of a maximum of twenty kilograms would be appropriate on an intermittent basis. Frequent bending and lifting and protracted periods of sitting were likely to aggravate his thoracic spinal pain and possibly the reported pain in the lumbar spine, which Mr Jones noted had not been radiographically investigated.
182 Mr Jones thought restrictions for the plaintiff were likely to be appropriate long term and that his outlook for the thoracic spinal fracture was likely to be one of ongoing symptoms in the area. In his view, it was difficult to assess the long-term prognosis of the lumbar spine without the benefit of an x-ray evaluation.
183 On re-examination on 16 October 2018, the plaintiff reported he had continued to experience ongoing symptoms of mid and lower back pain, varying in intensity, depending on the level of activity. The pain was said to be more pronounced in an area indicated to involve the lower thoracic spine with a separate area of lower back pain. Aggravating activities were identified, including twisting of the spine or attempting to lift over approximately 15 kilograms. The plaintiff advised, during the course of his current work, he is often required to lift lengths of steel. He was not aware of any restriction in his range of movement.
184 Current treatment involved Seroquel, and the plaintiff had Serepax to help him sleep. He reported he had Panadeine Forte available, taking approximately one tablet twice a week, supplemented by Voltaren, two tablets every second day.
185 There were similar findings to those on the earlier examination. Mr Jones again thought the plaintiff’s current complaints were consistent with a likely healed minor fracture, and again commented on the lack of investigations of the lumbar spine.
186 Mr Jones confirmed the occupational restrictions appropriate for the plaintiff in light of his vertebral fracture. He thought the clinically diagnosed lower back pain would involve a maximum lift limit of 20 kilograms and on an intermittent basis. A requirement to engage in frequent bending, twisting or lifting, as well as protracted periods of sitting, would likely aggravate, particularly, the plaintiff’s thoracic spinal pain. This situation was permanent.
187 Dr Michael Baynes, occupational physician, examined the plaintiff in March 2018.
188 The plaintiff reported he continues to suffer lower back pain, which is his major problem and, to a lesser extent, pain in the thoracic spine. The pain will come and go in severity and tends to be aggravated by weather or activity.
189 The plaintiff advised the pain ranged from four out of ten, to up to eight in severity, and he worked through the pain.
190 The plaintiff could sit for thirty to forty-five minutes and walking was good. He had no restrictions in terms of standing. He advised his sleep was often disturbed by pain. He could lift around fifteen kilograms.
191 Current treatment included occasional Mobic, as well as Panadeine Forte up to three times a week. The plaintiff took Valium in the morning, and reboxetine.
192 The 2012 CT scan was not provided.
193 On examination, extension was limited due to pain. Palpation revealed tenderness over T8 to T12 and over L3 to S1.
194 Dr Baynes noted, from the fall incident, the plaintiff sustained a minor fracture of the T10 vertebra with around 10 per cent loss of vertebral height. The plaintiff continued to report lower back and thoracic back pain. Dr Baynes thought the cause of the lower back pain was unclear, with no objective evidence of radiculopathy on clinical examination.
195 Dr Baynes considered the plaintiff was fit for full time modified normal duties where he does not repetitively lift greater than 15 kilograms and where he does not work with constrained postures, or where there is repetitive lifting or bending. He should not work at heights.
196 Dr Baynes thought the plaintiff was fit to undertake his present role full time and was also fit to work as a PCA. He would be fit to work in retail and in sales, as well as in restocking. He would be fit to work in a pick/pack role and also work in a factory warehouse, as well as in retail establishments. He was fit to continue his current role and would be fit to undertake retraining.
197 On re-examination on 20 November 2018, the plaintiff advised there had been no change in his condition.
198 Examination findings were similar, as was Dr Baynes’ assessment. He thought the plaintiff was fit to do his normal full time duties at Sunbather; however, he should have the restrictions previously suggested. He confirmed the plaintiff’s fitness to work in a range of other roles and noted he was coping well with his current job.
Leave records
199 A summary of the hours worked by the plaintiff and leave taken from 10 July 2017 to 1 October 2018 was relied upon. Sick days were not specified. The plaintiff took personal/carers leave and compassionate leave of varying hours on fourteen days. Annual leave of varying hours was taken on 10 days.
Overview
200There is no dispute the plaintiff suffered an injury to his spine in the incident.
201The plaintiff’s initial claim for statutory benefits was accepted, and by letter dated 9 October 2015, Gallagher Bassett advised that liability was accepted for the thoracic spine, fracture of the triquetral bone of the left wrist, and Adjustment Disorder relevant to the claimed stress, anxiety and depression.[62]
[62]Musculoskeletal injuries 11 per cent; nil psychiatric impairment
202The main thrust of the defendant’s case was that any interference with the plaintiff’s enjoyment of life and employment had been as a result of his drug dependence and psychiatric condition, not the compensable injury.
203Although the psychiatric impairment claim was abandoned, it was submitted it was obvious that psychological issues or drug issues have impacted severely on the plaintiff’s life over many years.[63] In those circumstances, it was “pretty well impossible to disentangle, in terms of pain and suffering, the effects of the drug problems and any work injury”.[64]
[63]T44
[64]T45
204 It was submitted even in his most recent report, the general practitioner mentioned the plaintiff having ongoing drug issues and panic attacks. Further, a number of histories were relied upon, in particular that of Dr Hayman which, it was submitted, set out these life disrupting difficulties.[65]
[65]T45
205 It was submitted it was “just unavoidable in this case for the plaintiff to have to deal with the destructive effect that his drug problems have had in his life generally.”[66] When one considered the effect of the drug pattern on his enjoyment of life in comparison with any back issues, “the scales are very much tilted by the drug problems rather than back issues”.[67]
[66]T47
[67]T50
206Further, it was submitted there was little spinal pathology and that it “ultimately comes down to a range case”.[68]
[68]T2
207 In response, counsel for the plaintiff submitted the drug issue was a “complete red herring”. To his great credit, the plaintiff had got over “ice” and other drug use. His pre-injury use of marijuana is irrelevant. In any event, drug addiction is not part of the case.[69]
[69]T54
208 Counsel submitted it was not disputed the plaintiff had an injury to his spine, involving a thoracic fracture and an aggravation of discal pathology at L4-5 and L5-S1. Further, every doctor recognises the plaintiff, who is now only forty, has a genuine cause for his ongoing complaints of back pain and the increased symptoms if he does anything strenuous, resulting in restrictions on his work capacity.[70]
[70]T54
209 It was submitted this was a “pretty clean case and a pretty simple one. The drug issues have got nothing to do with it. [The plaintiff] has got some pathology in his lower back, he has got genuine pain and takes medication. He has got restrictions on his work and life outside it.”[71]
[71]T58
210 It was submitted the medical opinion was very similar, with all practitioners agreeing the plaintiff had a thoracic fracture and that his lumbar pain was aggravated by bending and twisting. There was no suggestion of any functional overlay, thus no need for any disentanglement.[72]
[72]T52
211 It was submitted on the plaintiff’s behalf that the consensus of medical opinion is that as a result of his ongoing spinal pain, the plaintiff has a light work back[73] – “you could really throw a blanket over all the doctors, they are pretty consistent in what they say”.[74]
[73]T3
[74]T59
Credit
212As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[75]
“… 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.”
[75](2010) 31 VR 1 at paragraph [12]
213There was no significant attack on the plaintiff’s credit, save for a criticism that his pre-incident drug use was greater than that deposed to.
214Counsel for the plaintiff submitted the plaintiff was a man of credit, at all times doing his best to be honest with the Court, and while he could not remember various medical attendances, he was prepared to accept the accuracy of the notes in relation thereto.[76]
[76]T56
215It was submitted the plaintiff’s complaints of pain and restrictions were really consistent to all doctors with none having any issues as to his genuineness.[77] Further, both lay witnesses confirmed the plaintiff’s complaints and were not challenged.
[77]T58
216In my view, the plaintiff was a truthful witness. I accept that before the incident, he was a social user of marijuana and had no health-related drug issues. Since that time, despite his back injury, the plaintiff has been motivated to get on with his life, returning to the workforce in a number of roles post injury, despite serious drug issues in 2016 and mid last year.
The injury
217Clearly, the impact of the incident fall was significant, as noted in the ambulance report, causing injury to the plaintiff’s lower back and also a fracture higher up in the thoracic spine.[78]
[78]T51
218The diagnosis of the plaintiff’s spinal condition is relatively straightforward, involving both a definitive thoracic spinal fracture and the 2012 CT scan suggesting some disc disease at L4-5 and L5-S1 level [79]– described by Professor Bittar as aggravation of lumbar spondylosis.
[79]Medical Panel considered the plaintiff injured his lumbar spine in the incident – December 2014 –
Dr Karna’s report
219Whilst accepting a lumbar injury, Mr Jones was unable to make a diagnosis of the lumbar condition in the absence of any relevant investigations.
220Counsel for the defendant submitted however the thoracic fracture had probably healed totally and “the plaintiff’s better case was for the aggravation of lumbar spine or pathology,” which was submitted to be “unspectacular.”[80] The back pathology was described as minimal, with the last investigations in 2012 probably similar to any other person of the plaintiff’s age.[81]
[80]T48
[81]T47
221Although the thoracic fracture has largely healed, the 2012 CT scan revealed pathology, namely a disc bulge at L4-5 and a disc protrusion at L5-S1 which I accept is relevant to the plaintiff’s complaints of ongoing lumbar back pain as Professor Bittar and Dr Karna explained.[82]
[82]T52 – as did the Medical Panel in 2014
222Dr Baynes, occupational physician, is alone in the view that the cause of the plaintiff’s lower back pain is unclear, having found no objective evidence of radiculopathy on clinical examination.[83]
[83]T47
Pain
223As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[84]
“The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a) what the plaintiff says about the pain (both in court and to doctors);
… .”
[84](Supra) at paragraph [11]
224Whilst the general practitioner was optimistic in early times that the plaintiff’s back pain would settle,[85] the plaintiff has continued to complain of spinal pain in the years after the incident as Dr Keily’s reports confirm.
[85]T44
225In those circumstances, I do not accept Mr Battlay’s view that in 2015, there had been a full recovery and the plaintiff was totally fit for previous employment.[86]
[86]T46
226I accept the plaintiff has continued to suffer pain in his thoracic and lumbar spine, the severity of which fluctuates and is dependent on his level of activity, consistent with his affidavit evidence. In my view, these complaints are genuine- an opinion shared by practitioners such as Mr Jones.[87]
[87]T53
227In recent times, the plaintiff has complained to a number of examiners of a sharp, stabbing and aching pain which he has rated at six to eight out of ten. The plaintiff has told doctors that pain was exacerbated by walking for more than thirty minutes, sitting and sitting for more than twenty minutes, bending or twisting, forceful pushing or pulling, coughing, sneezing or straining, and lifting more than fifteen to twenty kilograms. It improved with recumbency, frequent postural changes, heat packs and medications.
228The plaintiff’s complaints in this regard were confirmed by his wife, whose evidence was not challenged. Also, his supervisor confirmed the plaintiff’s difficulty with lifting and the allowances made for him at work.
229All medical examiners accept a degree of restriction of back movement, particularly on extension, and the need for the plaintiff to modify his activities accordingly.[88]
[88]T53
230Dr Keily felt that the plaintiff would always have to modify his activities to reduce the amount of back pain.
231Mr Jones thought frequent bending and lifting and protracted periods of sitting were likely to aggravate the plaintiff’s thoracic spinal pain and possibly the reported pain in the lumbar spine.
232Imposing a lifting limit, Dr Baynes also thought the plaintiff was not fit to work with constrained postures or in work with repetitive or bending or at heights.
Treatment
233 Whilst there has been no specialist referral,[89] there has been no suggestion any such referral is necessary. Treatment has been conservative with ongoing painkilling medication and physiotherapy at various times.
[89]T48
234There is some conjecture as to the amount and nature of medication taken on an ongoing basis by the plaintiff for his back pain.
235Counsel for the defendant submitted the plaintiff’s medication intake was borne out by the documentation and his affidavits were criticised “although the plaintiff may well have, in the last little time, been prescribed painkilling medication.”[90]
[90]T48
236However, on a close reading of his affidavits, the plaintiff accurately describes his current medication regime and also produced current scripts for both Mobic and Panadeine Forte.[91]
[91]T57
237Further, whilst Dr Keily’s notes do not contain references to ongoing prescriptions of painkillers, his most recent report confirms the plaintiff’s regular use of anti-inflammatory medications, Voltaren and Mobic alternatively.
238 Such medication for pain relief is required particularly if the plaintiff over exerts himself. If he does any bending, twisting or repetitive lifting, his pain worsens as the doctors confirmed.[92]
[92]T53
239In these circumstances, counsel for the plaintiff relied on the comments of Dodds-Streeton J in Kelso v Tatiara Meat Co Pty Ltd:[93]
“Secondly, the reasons for judgment fail to deal at all with the issue of, and evidence concerning, the appellant’s persistent pain, to which he deposed in three successive affidavits, and on which he was cross-examined. The chronic pain was a prominent feature of the appellant’s case. The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
[93](2007) 17 VR 592 at para 199
Activities
240It was unchallenged that the plaintiff’s involvement in a number of sporting activities has been significantly affected by his back pain.
241 By reason of his back injury, the plaintiff, who was previously a pretty active man, has been unable to return to a range of sporting activities.[94]
[94]T55
242 Pre-incident, fishing was a significant activity for the plaintiff.[95] He had tried fishing once after the incident but had problems casting due to back pain as his wife confirmed. He no longer goes boat fishing. He does not play golf, go jogging or bike riding, and has problems playing with the kids and bike riding with them.[96]
[95]T58
[96]T55
243Although the plaintiff’s parents-in-law do the majority of household tasks, as it is their house, the plaintiff is limited in the assistance he can give in terms of heavier housework and lawn mowing.[97]
[97]T50
244 To a large extent, the plaintiff’s reduced socialisation is a result of keeping away from his drug friends, not due to back injury.[98] However, I do accept he has suffered a level of reduced social contact as a result of his back condition. As his wife confirmed, he needs to rest his back after work and she has to push him to socialise. The plaintiff also described problems sitting for any extended period as Professor Bittar noted.
[98]T49
245 To his credit, the plaintiff is back with his wife and has overcome his drug addiction. I am not satisfied that the plaintiff’s back pain was the real catalyst for his marriage breakdown. In my view, his drug problems and resultant behaviour issues played the significant part in his marital issues in the past.
246I accept the plaintiff has ongoing problems with sleep which are, to some degree, contributed to by his back pain, as his wife confirmed. Her evidence in this regard and also as to the plaintiff’s level of pain, his need for ongoing medication and the general interference with his back injury in a range of daily activities was not challenged.
Work
247 Counsel for the defendant submitted employment consequences were not “serious” on the medical evidence.
248 Dr Baynes considered the plaintiff was fit for full time modified normal duties with some restrictions and he thought the plaintiff was fit for factory work, and other vocations and could even work as a PCA.[99]
[99]T46
249Professor Bittar thought the plaintiff was currently capable of working full time in a light physical role if there was no heavy lifting, with minimal bending and twisting. [100]
[100]T45
250 The plaintiff is not totally unrestricted, according to Mr Jones. He found a good range of spinal movement and thought the plaintiff could lift up to twenty kilograms, which it was submitted was not a typical light work back.[101]
[101]T46
251 Further, it was submitted it was significant the plaintiff was working as a machine operator in the open market at Coca Cola until his “ice” use put an end to that, particularly with his Section 98 payout.[102]
[102]T48
252 It was submitted the plaintiff had fortunately returned to full-time work with an income equivalent to his pre incident earnings, and that there were some heavy aspects to that current employment.[103]
[103]T48
253 Counsel for the plaintiff submitted there were significant employment consequences relevant to this pain and suffering application,[104] acknowledged by all doctors.[105]
[104]Peak Engineering & Anor v McKenzie [2014] VSCA 67
[105]T59
254 Dr Baynes imposed a lifting limit of fifteen kilograms, and that is what the plaintiff sticks to, as he said in the witness box.[106]
[106]T54
255 It was submitted the plaintiff was a good worker. He was unable to work for a period after the incident and then returned to the workforce and has continued in employment since.
256 The plaintiff’s current employer is aware of his back injury and resultant restrictions. Mr Cairns confirmed the plaintiff’s difficulties at work and the need for time off. His evidence was challenged.[107]
[107]T56
257Effectively the plaintiff is on light duties and he is not required to do heavy lifting on his own. He is a forty-year old man, who now faces, for the rest of his working life, a permanent back injury and permanent restrictions.[108] His wife confirms he has to rest after work.[109]
[108]T54
[109]T56
258In my view, perhaps the most significant consequence of the plaintiff’s spinal impairment is his inability to resume unrestricted physical duties because of his back pain and restrictions. His working life has been in the family supermarket business and later labouring jobs which required physical tasks.
259As Dr Baynes explained, in addition to a lifting limit, the plaintiff is not fit to work with constrained postures or in work with repetitive or bending or at heights.
260Being unable to resume his job with the defendant after the incident, the plaintiff worked in the family shops and undertook study in aged care and obtained a PCA qualification. However, his involvement in that role was short lived as he could not cope with the physical requirements of that role as he explained to Mr Battlay in late 2013.
261Further, whilst the plaintiff was able to work full time as a machine operator at Coca Cola in 2015, he was still having difficulty with work at that stage because of his back pain and the need for postural changes as Dr Karna noted.
262The consensus of medical opinion is that there will be restrictions on the plaintiff’s work capacity for the foreseeable future.
Conclusion
263Aged forty, the plaintiff is still a relatively young man. It is now over seven years since the incident. As there has been no significant improvement in back pain despite treatment, I accept the plaintiff’s spinal pain and restrictions are permanent and the outlook is likely to be one of ongoing symptoms in his spinal region.
264In Stijepic v One Force Group Aust Pty Ltd,[110] Ashley JA and Beach AJA discussed the circumstances of a young plaintiff who faced, in the foreseeable future, a continuation of painful symptoms and of consequential inhibitions upon his enjoyment of life.
[110][2009] VSCA 181 at paragraph [43]
265The Court held, when judging the pain and suffering consequences for the appellant, by comparison with other cases, it was relevant to look at the likely period for which those consequences would be experienced. It was noted, all things being equal, impairment consequences which a man or woman would have to put up with for forty years might well be judged more serious than the same consequences which a man or woman may have to put up with for a much shorter period of time.
266Taking into account all the evidence, I am satisfied that the consequences related to the back injury, as opposed to any problems of a psychological nature or relating to drug use, are more than considerable or marked.
267Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering.
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