Borchard v DFS Holdings Pty Ltd
[2011] VCC 1228
•17 August 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT WARRNAMBOOL
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-00360
| LEIGH NORMAN BORCHARD | Plaintiff |
| v | |
| DFS HOLDINGS PTY LTD | Defendant |
---
| JUDGE: | HIS HONOUR JUDGE O'NEILL |
| WHERE HELD: | Warrnambool |
| DATE OF HEARING: | 16 and 17 August 2011 |
| DATE OF JUDGMENT: | 17 August 2011 |
| CASE MAY BE CITED AS: | Borchard v DFS Holdings Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1228 |
REASONS FOR JUDGMENT
---
Catchwords: ACCIDENT COMPENSATION – s.134AB Accident Compensation Act 1985 – injury to lumbar spine – pain and suffering only.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D G Brookes SC with | Brown McComish |
| Mr N R Bird | ||
| For the Defendant | Mr P A Scanlon QC with | Lander & Rogers |
| Mr P B Jens | ||
| HIS HONOUR: |
1 On 10 February 2005, the plaintiff claims he suffered injury to his lower spine in the course of his employment with the defendant when he attempted to prevent a heavy tine of a forklift, which he had been working on, from falling. He suffered pain in his lower back which has continued in varying degrees through to the present. He has remained largely in employment although experiences difficulty with the heavier aspects of his work, in particular work that requires lifting. He claims a reduction in a range of other recreational activities.
2 This is an application for leave to bring proceedings pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of the plaintiff’s employment with the defendant on 10 February 2005.
3 Mr Brookes, on behalf of the plaintiff, identified the body function said to be lost or impaired as the lumbar spine.
4 The application is thus brought under sub-section (a) of the definition of “serious injury” contained in s.134AB(37) of the Act, and leave is sought in respect of pain and suffering only.
5 In order to succeed, the plaintiff must prove, the onus being upon him, that the consequences emanating from the loss or impairment of the body function of the spine are at least “very considerable” and more than “significant” or “marked”.
6 I must consider the consequences to this particular plaintiff, viewed objectively, arising from injury. I must also compare the impairment arising from injury in this application with other cases in the range of possible impairments or losses of the body function.
7 The plaintiff was the only witness to be called to give evidence and be cross- examined. In addition, affidavits of the plaintiff and his wife, medical reports, clinical notes and surveillance video were tendered into evidence. I have read or seen all of the tendered material.
Relevant Background
8 The plaintiff was born in 1955 and is now fifty-six years of age. He was educated to Year 9 in Swan Hill and has been married to his wife for thirty-six years.
9 He completed an apprenticeship as a motor mechanic and has worked in that area all of his working life. He commenced work with the defendant in 2003 and the work involved servicing, maintenance and the repair of forklifts. The work was heavy and undertaken at his employer's site and other work premises.
10 He admitted to suffering intermittent back pain over the years, including a strain while working on a farm in Swan Hill. He was treated from time to time by Dr G Goldby, a chiropractor, for back pain up until he commenced employment with the defendant in 2003. He was unable to say when the last time prior to the relevant injury he received chiropractic treatment.
11 His interests included working in his garden, motor racing and fixing up cars, and the construction of various items in his shed. He acknowledged that he had not been involved in motor racing since the 1990s. He said he enjoyed camping with his wife although could not recall the last time he had been camping before his injury.
12 In the course of cross-examination, various extracts from clinical notes of the general practice which he consulted were put to the plaintiff. He agreed that he had several problems with his heel over a period, in respect of which he was treated with Vioxx, an anti-inflammatory, and by injection. He had various other unrelated physical conditions which were treated with medication from time to time, including gout, oesophageal reflux, blood pressure and injuries to his heel. In addition, he suffered injuries from time to time, not uncommon in the course of employment as a motor mechanic, including to his feet, hands and fingers. In 2004, the Vioxx which he had been taking was changed to Feldene for treatment for his heel problem.
The Injury and its Consequences
13 On 10 February 2005, in the course of his employment, he was welding cleats onto forklift tines. As he reached to prevent one of the tines falling, he claims to have felt severe pain in his back. The tines were very heavy. He continued working to the end of the day but had difficulty walking. The pain intensified over the course of that day, a Thursday, and the next, a Friday, a rostered day off. That evening he went to see Dr Goldby, who suggested he see his doctor.
14 On 11 February 2005, he went to see his general practitioner, Dr Mitchell, who prescribed Panadeine Forte and referred him for x-rays. He rested over the weekend and returned to work on Monday at the Avalon Airport. He said in evidence that he rang his employer and told him he could not continue. X-rays taken at the time showed mild scoliosis but little else. A CT scan was undertaken in March 2005 and, according to the report of Mr Schofield of 2 December 2009, it showed a large prolapse at L4-5 and a smaller prolapse at L5-S1. The scan also reported chronic degenerative changes at the lower disc. Further, there was said to be protrusion at L4-5 impinging upon the exiting L4 nerve root, and the L5-S1 protrusion was adjacent to the S1 nerve root. The scan also reported chronic degenerative changes at the lower disc. Further, there was said to be protrusion at L4-5 impinging upon the exiting L4 nerve root, and the L5-S1 protrusion was adjacent to the S1 nerve root.
15 After the CT scan, he did not return to work for a period of four or five weeks. The general practitioner then referred him to Mr Owen Williamson, although in the report of the general practitioner there is reference to being referred to Mr Ian Jones, an orthopaedic specialist. He saw Mr Williamson on one occasion only on 9 March 2005 and gave a history of three weeks of low-back pain which had developed on 10 February 2005, although according to that history obtained, the plaintiff said the injury had not arisen as a result of any specific event.
16 In cross-examination, he said he was unable to explain why Mr Williamson had received such a history. I do not see the inconsistency, if that is what it is, as a matter of any significance. The plaintiff complained to Mr Williamson of intermittent pain radiating into both legs. At the time he was taking Panadeine Forte. Mr Williamson noted the degenerative change on the CT scan and a small right-sided paracentral disc prolapse. He recommended against surgery and he encouraged the plaintiff to resume his normal activities, including work-related duties “as comfort permitted”.
17 According to the report, a further appointment was made on 12 April 2005 which the plaintiff did not attend. The plaintiff denied knowing of that appointment. Mr Williamson considered that the disc prolapse was not due to a specific work incident, but his work-related duties were likely to have significantly contributed to its development.
18 According to a letter to the plaintiff's general practitioner of 15 March 2005, Mr Williamson said that he reassured the plaintiff that his symptoms should continue to settle over the next month or two. As stated, he recommended that he resume his normal activities including work duties “as comfort permits”. He said that he would review the plaintiff in a month's time and suggested to him that he could see him sooner in the event that he developed increasing symptoms.
19 It was put on behalf of the defendant that the failure by the plaintiff to return to see Mr Williamson was evidence of the paucity of the pain and the problems that he was suffering. The plaintiff, in explanation, said that he thought he would require a referral from his general practitioner in order to go back to Mr Williamson. I find that in the case of a man of the plaintiff's background, his explanation is acceptable.
20 The plaintiff continued to consult Dr Mitchell and it would appear that the pain in his lower spine waxed and waned. He saw a physiotherapist on several occasions which did not assist. He returned to work, initially on restricted hours, building up to eight hours a day, on light duties. He was advised to return to normal duties and did so, being careful as to lifting heavier items. He received treatment from time to time from Dr Golby the chiropractor.
21 The plaintiff and his wife moved to Warrnambool in June 2006. At that time, he was certified as fit for normal duties by his general practitioner. According to the clinical notes of that practice, he attended there on five or six occasions over the previous ten or twelve months, but there is no record in the notes of any complaint of lower back problems. Despite this, he said in evidence that he had been taking one Feldene anti-inflammatory tablet per day going back to the time of injury and this medication was only obtained on prescription. For reasons which I shall later refer to, I accept the plaintiff as an honest witness and accept his evidence in this regard.
22 After he and his wife moved to Warrnambool, he attended the Jamieson Street Medical Clinic and saw Dr King. His first attendance was in February 2007 when he complained of a flare-up of his back symptoms. He blamed the flare-up on his work duties. He was referred for physiotherapy treatment with Mr Tony Grace. There is no report from that practitioner, although his clinical notes were referred to in the course of the application.
23 Since arriving in Warrnambool, he has worked from that time through to the present in full-time employment with very little if any time away from work because of his back injury.
24 Initially his work was with Pacific Forklifts. According to his affidavit, he left that work after one year, as it was too heavy. According to the report of Mr Schofield, he said he was unhappy at that work because of the atmosphere there and general hygiene. I accept the evidence of the plaintiff that at least part of the reason or leaving was because of his difficulty with heavier lifting. He then worked in a motorcycle workshop, and then a tyre fitting business, all in Warrnambool. He states that he was having difficulty in these various employments with lifting, and for that reason, in January 2010, undertook a workplace training course with a view to becoming a TAFE teacher. He said he struggled to cope with the study and computer requirements.
25 In April 2010, he commenced work as a motor mechanic with Western District Agri Centre. The work involves repairs and maintenance to large farm equipment. In evidence, he said that when he commenced employment with this company, he disclosed his back problems and said he was unable to undertake any significant lifting. He works eight hours a day for that company through to the present time although says he is unable to work in the same manner as he would wish, or that his employers would require. For a short period in February and April 2010 he delivered newspapers, but he was unable to continue that and undertake his studies at the time.
26 At the present time, his current medication is Feldene, an anti-inflammatory, one per day, Panadol, which he purchases over the counter and takes nearly every day, and Panadeine Forte, now and again when his back problems flare-up. He sees the physiotherapist, Mr Grace, on a regular basis, particularly again with flare ups, and sees his general practitioner occasionally. He said in evidence that he has seen his general practitioner once or twice over this year.
27 In a recent report from the Jamieson Street Clinic of March 2011, Dr King confirmed that the plaintiff had been prescribed Feldene, the anti-inflammatory medication, for his back since March 2009 on a continuing basis. In April 2010, he presented at the practice with continuing back and leg pain. According to Dr King, since March 2009, the plaintiff was seen at that practice on sixteen occasions by a range of doctors and only on one occasion, in April 2010 with Dr Oliver, is there any reference to ongoing back pain.
28 The plaintiff says that at the present time he has continuous pain, although in evidence he said that that was not present every day. The pain is two or three out of ten and can increase markedly if his back is aggravated. He claims difficulty with sleeping and wakes regularly. His intimate life with his wife is compromised. He is conscious with lifting any heavier objects and claims to tire easily as a result of compensating to avoid the risk of further injury. He does drive a car, and sometimes extended distances, including to Mildura, but shares the longer driving with his wife.
29 He says that he now cannot enjoy his pastime of mechanical work outside his employment in the same manner as before. He does maintenance work on his own car, including changing the oil, but is unable to do any heavier work. He said he used to work on friends’ cars but now does not do so. Heavier work, including on engines, gearboxes and clutches is beyond him. He does do work in the garden, including maintaining garden beds, and mows the lawn. He says he is concerned about his future and his capacity to work. He says that his back pain is increasing and the flare-ups are becoming more frequent. He is able to continue in his employment although with difficulties. Lifting is done with lifting equipment and forklifts, and he also obtains the assistance of co-workers as needed.
30 According to the affidavit of the plaintiff's wife, she says that his back injury has had a severe affect upon them. She refers to her husband as stoic and non-complaining. She confirms his difficulty with sleeping, travelling and their intimate relationship. She says that his back injury has been life changing.
31 The plaintiff has not sought nor been referred to any other further specialist since seeing Mr Williamson in 2005.
Medical Opinions
32 The plaintiff was examined by Mr Stanley Schofield, orthopaedic surgeon, in November 2009, March 2010 and more recently in July 2011. He gave a history of the onset of low back problems when lifting the tine on 10 February 2005. Mr Schofield referred to the CT scan of March 2005, and sent the plaintiff for an MRI scan on 19 March 2010. The report of that scan referred to mild to moderate disc protrusion at L4-5, impinging on left L4 nerve root. Further, the scan reported a mild to moderate broadbased disc protrusion causing impingement on the right L5 nerve root at L5-S1.
33 Mr Schofield concluded that the plaintiff had pre-existing degenerative change in his lower spine which was aggravated in the workplace incident of 10 February 2005. He said the plaintiff was not fit for manual labour but was suited for restricted duties only. He said the bulge at the lumbosacral disc was small but because of the reduced available disc space, there was likely to be impingement on the exiting nerves. He said the protrusion at L4-5 was not completely healed and likely to be causing ongoing back problems. He said there was a clear correlation between the findings on the MRI scan and the plaintiff's complaints of pain in his back, and referred pain into his legs, although he was unable to find any radiculopathy upon physical examination.
34 He said continued physical work would be limited and he would be eventually forced to obtain lighter duties with the possibility of surgery to decompress the nerve roots and a fusion at one or both levels. In his final report dated 3 August 2011, upon physical presentation, Mr Schofield said that the plaintiff complained of continuing pain in his low back and referred pain into both legs below the knees. The plaintiff said that he did an exercise program which sometimes made the pain worse. He said his symptoms were worse on sitting or standing for long periods, as well as lifting. He said he had no great difficulty walking but his recreational activities, including gardening, were markedly restricted. He told Mr Schofield at the end of each day's work he had to rest at home rather than enjoy the evenings.
35 On examination, as on previous occasions, straight leg raising was 90 degrees bilaterally and neurological examination of the lower limbs was normal. In his opinion, Mr Schofield said that the physical work undertaken by the plaintiff would be restricted and that that remained through to the present day. He said that despite the pathology, the plaintiff continued to have a good range of spinal movement with normal straight leg raising and neurology. He said that this may indicate some resolution of his condition and he advised a further MRI scan.
36 He concluded as follows:
"The evidence from these investigations will determine whether or not your client will benefit from surgery now or in the foreseeable future. His prognosis remains guarded with regard to continuing to do physical work. I do not believe that he is fit for pre-injury duties now or in the future but is able to cope with restricted duties at the present time."
37 There were no medical opinions in evidence on behalf of the defendant.
38 I conclude from the various medical opinions that the plaintiff had an underlying degenerative condition in his lower spine, particularly at L4-5 and L5-S1. I accept that he had niggling complaints of back pain over the years which from time to time required chiropractic treatment. I accept that on 10 February 2005, the plaintiff suffered an aggravation to the lower degenerative discs. Despite the early optimistic outlook of Mr Williamson that the condition would settle and improve, that has turned out not to be the case.
39 Mr Schofield's opinion in his report of March 2010 is as follows:
“The patient has done physical work all of his adult life. His further complaint of muscle strains were probably pain arising from the lumbosacral disc which was significantly degenerate at the time of the injury which occurred on 10 February 2005. The mechanism of injury, including a rotational stress under load, and including extension, is likely to be the cause of a disc prolapse that was seen to be present at both L4/5 and the lumbosacral levels.
It is likely that the prolapse at these two levels occurred at the time of injury. He initially had back pain only but over time he developed symptoms in both legs. This is consistent with a gradual progression of the prolapse causing irritation in the nerve root canals at both levels, as has been described in the CT scan which was done one month after the injury.”
40 I accept the opinion of Mr Schofield.
The Credibility of the Plaintiff
41 The position of the defendant is that the plaintiff is able not only to undertake full-time work as a motor mechanic, but also enjoy a range of recreational pastimes and interests beyond that which he describes in his affidavit. The defendant says the plaintiff is able to do more than he would have the Court believe and I ought to have reservations about accepting him as a credible witness.
42 The plaintiff was cross-examined on a range of issues, including that he had been taking Feldene for a considerable period, including before his injury. As a consequence, the plaintiff had significant back problems on a regular basis before his injury, which was treated by Dr Golby. In any event, the plaintiff's back improved and he has had little in the way of treatment over the last three or four years. He carries out a considerable amount of work in his shed, including wood and steel work, which involves significant manual labour.
43 Mr Scanlon submitted the plaintiff is an active person involved in a range of activities such as walking, shed building, car travel, fishing and photography. I regard his evidence in relation to photography as of limited significance given he says that he takes photographs only on holidays, albeit on one occasion a photograph was entered by a person into a photographic exhibition.
44 I do not accept the proposition that the plaintiff had extensive back problems prior to the date of his injury. There was no evidence that the prescription of Feldene was related to any back problems. I accept that the plaintiff had chiropractic treatment from time to time up to his employment which commenced with the defendant in 2003, but I do not regard his back problems nor their treatment before injury as extensive or significant.
45 I found the plaintiff a frank and honest witness both in the course of cross- examination and in his description of his difficulties in his affidavit. He made the concessions in cross-examination I would expect of an honest witness. I found his description of his capacity to work and carry out a range of duties in his affidavit frank and consistent.
46 Video film of the plaintiff was shown and tendered into evidence. It showed him over a number of days in July 2001 working at or around his shed at the rear of his house in Warrnambool. Outside the shed on one side was a stack of pallets and a further stack of smaller pallets in a trailer nearby. No part of the video showed the plaintiff lifting those pallets, although he admitted in cross-examination that he did lift the heavier pallets with his wife, and slid the smaller ones off the trailer by himself. He said the pallets were loaded at work, to be brought to his house, by other co-employees.
47 He was also seen to walk in an apparently normal manner, sit for a period in a shopping centre, and walk his dog. He admitted to walking his dog each day for a period of approximately half an hour. Further surveillance film was shown on 12 August which showed the plaintiff jogging across a road and ducking under a fence. Again, he appeared to move in an unrestricted manner. He was again seen at his shed and by this time the pallets had been removed. He said he had done some tree clipping, or lopping, and placed the tree branches on his trailer and taken them to the tip.
48 Finally, on 2 May 2011, the plaintiff was shown bending under a fence with his hand on his leg and walking in an unrestricted manner.
49
50 I do not find any inconsistency between the plaintiff as depicted upon the video film and his presentation in evidence, and in the histories given to the medical practitioners. In particular, I did not find the fact that the plaintiff was able to walk in a free manner, bend down on a number of occasions and chop up pieces of pallets depicted with a chainsaw to use firewood, as being inconsistent with his evidence either before the court or in his affidavits.
51 As the plaintiff candidly said in the course of cross-examination, he did not claim to be completely incapacitated and there were a range of activities that he could pursue. Further, in the course of cross-examination, the plaintiff admitted doing a range of activities in his shed. He said he with others constructed the shed within the last several years. He has a range of tools and equipment in the shed which were transferred from previous premises. He said he made various small wooden items, although he was unable to do the lathe work as this required him to bend over for sustained periods. He said the only lathe work he had done was to make some legs for a table.
52 He said the pallets were delivered from work and he did roll the larger off the side of a truck. The pallets were largely cut up for firewood and used to heat the shed. He accepted that he had made a steel table, or bench, and installed shelving in the shed. Again I find none of these admissions significantly different from the plaintiff's portrayal of his pain and restriction both to the doctors and the Court.
53 He explained that he was unable to do the work in his shed that he had previously enjoyed. He found lifting particularly difficult. He could not work on car engines and other mechanical equipment in the same free manner as before. He did regularly spend time in his shed but he was not engaged in the same activities as before his injury. All in all, I accept his evidence in re- examination, that there is a significant discrepancy between what he was able to do before injury as compared to after.
54 As stated, I accept the plaintiff as an honest witness giving a fair account of his difficulties.
Conclusions
55 As stated, I accept the plaintiff had an underlying degenerated spine at the lower levels. That condition was significantly aggravated in the workplace incident of 10 February 2005. I accept the opinion of Mr Schofield that the incident on that day caused, or significantly contributed, to a prolapse, or bulging, at the two lower levels with compromise of the exiting nerve roots, most prominent at L5-S1. I accept the radiology explains the plaintiff's complaints of pain both in his lower back and legs.
56 The plaintiff has admitted that he has continued in his employment as a motor mechanic on a full-time basis through to the present time but with restrictions particularly in the areas of lifting. I assess the plaintiff as a result of my observations in cross-examination and the reports of the practitioners and the evidence of his wife as a stoic and uncomplaining person. [See reference to stoic plaintiffs in the judgment of Nettle JA in Dwyer v Calco Timbers (No. 2)[1]].
[1] [2008] VSCA 260 at paragraph 3
57 There has been a paucity of treatment of his back over the last six years but I accept that this is more to do with the fact that no medical practitioner has been able to offer any solution to his problems, rather than any particular lack of symptoms. I accept the evidence of the plaintiff that his sleep has been affected, that his intimate relationship with his wife is compromised, and that he has pain on a continuing basis in his back and into his lower legs which requires prescription medication including Feldene.
58 In my view, a person who has spent his working life with his hands and his particular interests are in the field of mechanical work, suffers a very significant consequence when that capacity is reduced in the manner that the plaintiff describes. I accept his complaints of pain in his back and legs. I accept the opinion of Mr Schofield that it is unlikely he will be able to undertake anything other than restricted duties in the future.
59 In my view, the plaintiff achieves the “very considerable” level as to the consequences as a result of his back injury. I will grant leave to the plaintiff to issue common law proceedings.
- - -
0