Brodie v Farstad
[2013] VCC 1167
•19 August 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CIVIL DIVISION
Case No. CI-11-04624
| ROBERT STEPHEN BRODIE | Plaintiff |
| v | |
| FARSTAD SHIPPING (INDIAN PACIFIC) PTY LTD - and – WORKSAFE VICTORIA | First Defendant Second |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 July, 1 & 2 August 2013 | |
DATE OF JUDGMENT: | 19 August 2013 | |
CASE MAY BE CITED AS: | Brodie v Farstad & Anor | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1167 | |
REASONS FOR JUDGMENT
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Accident Compensation – application under s.134AB(16)(b) Accident Compensation Act 1985, serious injury- physical consequences – leave granted limited to pain and suffering only.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M J Ruddle | Nowicki Carbone |
| For the Defendants | Mr J O’Brien | Wisewould Mahony |
HER HONOUR:
1 Robert Brodie makes this application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985, (“the Act”), for injury suffered by him in the course of his employment with Farstad Shipping (Indian Pacific) Pty Ltd due to the nature of his employment and, in particular, on or about the 24 August 2009.
2 The application is based on the definition of serious injury in s134AB(37)(a) of the Act. There, “serious injury” is defined relevantly as meaning “permanent serious impairment or loss of a body function”. The loss of body function and impairment in this case is the lumbar spine.
3 The injury is described as injury to the lower back, but more specifically prolapse of the L5-S1 disc, with resultant surgery, together with aggravation and acceleration of degenerative changes of the L3-4, L4-5 (“the injury”).
4 Leave is sought to recover pain and suffering damages only.
5 In these types of applications, the Court of Appeal has made it clear in Barwon Spinners Pty Ltd & Ors v Podolak & Ors[1] that the correct template is firstly, to determine whether the plaintiff suffered compensable injury on or after the 20 October 1999; secondly, to determine the nature of that injury and its consequences and finally, to confirm whether the consequences of that injury meet the statutory definition of serious injury.
[1][2005] VSCA 33
6 Mr O’Brien on behalf of the defendant concedes that it accepted liability for organic injury suffered in the course of employment, particularly on 24 August 2009, but does not concede that such injury meets the requirements of sub-paragraph (a) of the definition of “serious injury” referred to above.
7 The plaintiff relied on two affidavits sworn 23 May 2011 and 24 October 2012 and gave viva voce evidence and was cross-examined. His treating Orthopaedic Surgeon, Michael Johnson, also gave viva voce evidence. In addition, both parties relied on medical reports and other material which were tendered in evidence. I have read all the tendered material.
8 Some criticisms were made of the plaintiff concerning his credit. During the hearing a short DVD of surveillance was shown. It was very short. The first part taken on 6 August 2011 shows him going into and then leaving a post office and runs for 0.15 seconds. The second part taken on 27 August 2011 shows him crossing the road, going into dry cleaners to collect his dry cleaning and then coming out. That tape is of 2.17 minutes duration. He is seen doing a slow jog across the road to the dry cleaners to avoid traffic and then walking along the street.
9 The surveillance material does not cause me to have any concerns about Mr Brodie’s credit. In both the affidavit material and in his evidence he did not deny that he does things in the course of his day. He says that he can manage, but if he attempts some activities such as mowing the lawn, he suffers afterwards, which not a surprise given his known medical condition.
10 I accept him as a reliable witness.
11 Mr Brodie is aged 47 and was born on 16 August 1966. He is currently employed part- time as a cabin steward with the Spirit of Tasmania. He works three to four days per month and has been doing so since October 2012.
12 It is common ground that he had a previous compensable back injury whilst employed with the defendant and a history of back pain that did not result in significant or particularly limiting back problems.
13 The uncontested evidence is that he suffered an injury to his lower back on 2 June 1990 when employed at Ideal Dairies as a yards man and truck driver. He had three months off work and returned to work initially on light duties. He ceased work 6 months later as he relocated interstate.[2] There is no evidence of any further treatment or time lost from work attributable to that back injury.
[2]Plaintiff’s affidavit [15], PCB 18
14 Thereafter Mr Brodie has a good work history involving a number of different employers and working in different capacities. He commenced with the Spirit of Tasmania as a steward from about 1993 and worked there for about 4 years. He worked as a bar manager for the Tiger Bar for about 4 years and worked as a chief steward with Allseas Shipping for about 1 year. From November 2002 he worked with Young’s Pool Shop as a serviceman for about 6 months and then worked for one month as a caterer for P&O. He then commenced working full time with the defendant as a caterer from July 2003.[3]
[3]PCB 17
15 On 11 May 2004 he suffered a compensable back injury during the course of his employment with the defendant whilst at sea. Apparently he bent down to pick something up from the floor of the ship’s laundry and noted back pain.
16 The pain was sufficiently serious to warrant a transfer from the ship for treatment. He ultimately came under the care of Mr G Brazenor, Neurosurgeon. He also saw Dr Nurse, General Practitioner.
17 Mr Brazenor, in a letter dated 15 December 2009, to the Accident Compensation Conciliation Service[4] states that Mr Brodie was admitted to the Epworth Hospital under his care on 20 May 2004 in respect to his back injury. An MRI performed at that time showed a moderately large left sided protrusion of the L5-S1 disc as well as mild degenerative change in the L4-5 and to a lesser extent L3-4 discs. He offered operative treatment but this was not proceeded with.
[4]PCB 52
18 By 25 February 2005 he described the plaintiff as looking comfortable. Due to ongoing back pain he subjected Mr Brodie to three level lumbar discography and MRI, and those investigations showed significant degenerative changes in L3-4, L4-5 and L5-S1 discs.
19 By 1 June 2005, following further MRI imaging, Mr Brazenor stated the left sided protrusion at L5-S1 had healed significantly, whereas the L4-5 disc showed a more prominent diffuse bulge than it had previously. Discography reproduced clinical pain with all three of the disc injections at L3-4, L4-5 and L5-S1. Mr Brazenor advised surgery was contra-indicated at that time.
20 When reviewed on 10 June 2005, he told Mr Brodie that the L5-S1 disc had continued to heal notwithstanding Mr Brodie alleged that his pain and disability levels had unaccountably increased.
21 Mr Brazenor reviewed Mr Brodie intermittently and by 10 October 2005 he noted that he was working 30 hours a week in an office and wearing a back brace. He continued with conservative management.
22 In fact Mr Brodie successfully returned to work with the defendant as a Human Resources Assistant undertaking full time administrative duties 37.5 hours per week. It was whilst acting in that role he alleges he suffered a further compensable injury on 24 August 2009.
23 In February 2006 he was seen by Mr Brazenor following a recurrence of pain when he turned over in bed suddenly when the phone rang. An MRI dated 8 February 2006 showed further healing in the L5-S1 disc and also healing in the L3-4 and L4-5 discs.
24 On 29 May 2006 he represented to Mr Brazenor with grumbling low back pain, left sided sciatica and burning in the whole of the left foot. Mr Brazenor was unable to confirm significant pathology in the lumbar spine to account for those symptoms and thought Mr Brodie was fit for full-time office work so long as he continued to do two therapeutic walks outside of office hours, which he had consistently advocated since Mr Brodie had returned to work.
25 Mr Paul D’Urso saw Mr Brodie for a second opinion in June 2006. In cross-examination, he accepted that he told Mr D’Urso that he was still having pain in the back which radiated around the left hip and down the left leg and rated his back pain on an average day as 5½/10 and left leg pain as 7/10. Mr D’Urso advised him on likely treatment but did not see him again.[5]
[5]DCB 39
26 Dr Nurse’s clinical notes show few attendances relating to Mr Brodie’s back condition prior to 24 August 2009. Dr Nurse saw him on 2 occasions on 10 February 2006 and 5 December 2006. He prescribed Mobic and MS Contin on the first visit and Mobic and Valium on the second visit. He recorded low back pain as the presenting symptom but did not record any clinical examination findings. Dr Nurse has no record of attendances for lower back pain in 2007 or 2008.
27 In cross-examination, Mr Brodie confirmed that he saw Mr John McMahon, who was a locum for Mr Brazenor, in January 2007. He agreed that he complained to him of increasing pain.
28 On 10 January 2009 he went back to Dr Nurse and told him that he still had back pain, was unable to sit for any length of time, and was prescribed Mobic. On 12 January 2009 he was given a certificate for five days off work. On 10 August 2009, Dr Nurse gave him two days off work because of back pain.
29 Having considered all the evidence I am satisfied that prior to the 24 August 2009 that Mr Brodie did have a compensable back injury that required time off from time to time but that he managed at work with conservative treatment and required only limited time off following exacerbations.
30 However a different pattern emerged following the 24 August 2009 incident.
31 I accept Mr Brodie’s evidence that on or about the 24 August 2009 he was in a squatting position retrieving a file from a lower shelf in the compactus, when he lost his balance and fell awkwardly, landing heavily on his right side.[6] He returned to his desk with the file and took a break of approximately 10 minutes. He went back to his desk and felt a dull and strong pain in his lower back. He then went and lay down and stretched his back and reported the incident to Anca Grigorias, the Health & Safety Representative. About a week later he consulted Dr Nurse who prescribed pain relief and anti-inflammatory medication.[7]
[6]Plaintiff’s affidavit [24], PCB 19
[7]Plaintiff’s affidavit [25]-[29], PCB 20.
32 Dr Nurse’s notes show on the 3 September 2009 he presented with “back pain -> L buttock. Restricted SLR. MS Contin prescribed. Certificate 2 days. [8]
[8]Dr Nurse’s notes were included in the defendant’s court book.
33 Dr Mala Thondan, General Practitioner, commenced to treat Mr Brodie on 9 September 2009. She confirms that investigations including a CT scan showed an L5/S1 disc bulge with compression. She referred him back to Mr Brazenor.
34 He presented to Mr Brazenor on 21 September 2009. On examination Mr Brazenor noted that he had a prominent limp. There was diminished lumbar lordosis and 2/5 spasm of his erectus spinae muscles on palpation. Without articulating his reasons Mr Brazenor considered the plaintiff’s presentation was “functional”. The plaintiff’s subsequent treatment including spinal surgery performed by Mr Johnson with findings of recent disc prolapse suggests this comment was without proper foundation.
35 A CT scan dated 8 December 2009 showed a tiny left lateral recess protrusion of the L5-S1 disc and a moderate right posterior quadratic protrusion outside the foramen at L3-4 and a moderate diffuse bulge at L4-5. He recommended further conservative treatment.
36 An MRI was performed on 17 November 2009 and again it showed a mild left paracentral disc protrusion at L5-S1 which Mr Brazenor considered looked much as it did in the past. He last saw Mr Brodie on 26 September 2009 at which time he referred him to Mr Michael Johnson for a second opinion.
37 Mr Michael Johnson, Orthopaedic Surgeon, took over his treatment in September 2009. In a letter dated 23 January 2010 to Allianz Australia Workers Compensation he confirms that Mr Brodie presented with severe left sciatica. Mr Brodie told him that he felt his problem was related to pulling a compactus at work. Since then he has been troubled with left sciatica which has not responded to a course of oral steroids and a nerve root injection.
38 Following clinical review and MRI investigation that showed evidence of lower lumbar degenerative change with some lateral recess stenosis at L4-5 and a disc prolapse at L5-S1, he considered the primary problem was the L5-S1 disc prolapse.
39 On 18 February 2010 Mr Johnson performed a left L4-5 and L5-S1 discectomy.
40 At the time of the surgery he confirmed that the primary abnormality was at the lumbosacral level where there was evidence of a recent disc prolapse compressing the left S1 root. He decompressed that and also at the L4-5 level, and a lateral recess decompression was performed.
41 Post-operatively, Mr Brodie recovered well and his sciatica disappeared. Mr Johnson expressed the opinion that at the time of surgery there was evidence of some narrowing of the left L5 lateral recess caused by his original work injury. In addition, at the lumbosacral level there was evidence of a recent prolapse and he thought that there is no doubt that the lumbosacral prolapse was a cause of the recent deterioration.
42 Mr Johnson wrote that pulling a compactus could certainly cause a disc prolapse.
43 In evidence, Mr Johnson was asked about the mechanism of injury. He was told Mr Brodie’s description of what happened; that is, whilst attempting to retrieve a file in the compactus he fell and landed heavily into the wall. He then got up and went back to his desk. He went to the toilet and within approximately 5-10 minutes after the fall he suffered severe pain he believed was tenfold to whatever pain he had suffered prior to 24 August 2009 and in the years leading up to it from 2005 through to 2008.
44 Mr Johnson accepted that the incident has played a significant part in the deterioration of his symptoms. He said that when he saw the plaintiff, Mr Brodie had severe left leg pain and was grossly disabled. He could walk 50 metres and was taking narcotic analgesics. He could move his back about 20 per cent of the normal range.[9] He said he had had some treatment with cortisone tablets and cortisone injections. He tried another cortisone injection which did not help and then, because he remained disabled, he subsequently moved on to surgical treatment.[10]
[9]T44, L24-30
[10]T45, L106
45 Mr Johnson agreed in cross-examination that the evidence supports a finding that Mr Brodie clearly had some back symptoms to some extent over the period from May 2004 up to August 2009 and prior to the August 2009 work incident.
46 When questioned whether the injury that had occurred in August 2009 was consistent with the 2004 incident continuing or was it materially different, he stated he did not see Mr Brodie between 2004 and 2009. All he could say was that he was grossly disabled. He could walk 50 metres, he was taking OxyNorm and MS Contin for pain relief and was clearly at the end of his tether. He could not say whether the presenting symptoms were a continuation of the 2004 injury or precipitated by a new injury.
47 In re-examination, he confirmed from what was described, that whilst Mr Brodie had symptoms in the past, he had not had episodes where he was grossly disabled for such a long period of time.[11]
[11]T53, L1-4, T52, L31
48 He also stated in re-examination that if the plaintiff’s version of events is accepted he was materially worse after the incident at work on 24 August 2009.
49 Mr O’Brien was very critical of Mr Brodie and emphasised the absence of any record of him falling at work whilst crouching down to obtain a file in the compactus. He submitted that had the fall precipitated the severe symptoms on 24 August 2009, surely it would have been referred to in his claim form, in the incident report or have been recorded by his General Practitioner, Dr Nurse.
50 I accept Mr Brodie is a credible, reliable and truthful witness notwithstanding that there is no specific mention in that material of the precise mechanism of injury.
51 Prior to August 2009 I am satisfied that Mr Brodie had pre-existing back problems that required treatment form time to time. He was nevertheless able to manage full time at work within his limitations. He had some limited time off work due to his back condition. He was not reliant on heavy pain relief medication.
52 The objective evidence shows that following the incident at work in August 2009 his situation was dramatically different. His complaints of severe pain were recorded by his treating doctors. The pain was of a type that was not amenable to strong pain relief and ultimately he required spinal surgery as described. In the words of Mr Johnson, he was “grossly disabled”.
53 Having regard to all of the evidence and the tendered material I consider that it is appropriate that I deal with this application on the basis that Mr Brodie had a pre-existing back injury that was aggravated following the incident at work on 24 August 2009.
54 I therefore must apply the principles set out in Petkovski v. Galletti[12], Dalton v. Dandenong Scaffolding Hire Co Pty Ltd[13] and Lu v. Transport Accident Commission[14].
[12][1994] 1 V.R. 436.
[13][2003] VSCA 183.
[14][2003] VSCA 195.
55 I accept that Mr Brodie’s 1990’s back injury did not result in significant or particularly limiting back problems. Then, in 2004, he developed substantive back pain during the course of his employment as a caterer, necessitating hospitalisation for a month with no surgery. Following a gradual return to work, he was able to return in August 2004 on restricted duties, working with the defendant in an administrative role. He continued in that position, with some ongoing bother with his back, although it was not disabling. From time-to-time his back would play up but generally he would be able to work through those episodes.
56 The objective evidence is that it was not until the incident on August 2009 that he suffered significant disabling pain.
57 Dr Marla Thondan, General Practitioner, who has been responsible for Mr Brodie’s care since September 2009, noted three attendances on 9, 25 and 30 September 2009 in relation to severe low back pain (L5/S1 disc injury).
58 When he presented on 9 September 2009 he was unable to walk properly due to lower back pain. She noted that he looked very uncomfortable and was in distress. He had been commenced on MS Contin and Endone for pain by Dr Nurse and was seeing Dr Debbie Wong, Osteopath. She noted he was in considerable pain, walking with an antalgic gait, and was taking strong pain relief. He was unfit for full duties.
59 She initially referred him back to Mr Brazenor who in turn referred him to Mr Johnson. Following the surgery performed by Mr Johnston, Dr Thondan noted Mr Brodie’s pain levels were better but that he had a residual paraesthesia, especially involving the left leg and stiffness in his lower back had replaced it. He had restless legs, particularly at night, which interrupted sleep significantly.[15]
[15] PCB44
60 There was a gap in her treatment due to Mr Brodie moving interstate. At review on 31 August 2012 Mr Brodie was still complaining of a lot of pain and muscle spasm, experiencing backache and leg cramps. He was recommenced on Endep (in an attempt to settle down the paraesthesia and for its sedative effect to help with his insomnia); an anti-inflammatory, Mobic; and Diazepam, as required for muscle spasms.[16]
[16] PCB45
61 Dr Thondan has continued to review him. She saw him on one occasion in September 2012 and three times in October 2012. She wrote scripts for Endone and Panadeine Forte. She feels Mr Brodie’s left leg paraesthesia will be life-long and will give him ongoing discomfort and restless legs/disrupted sleep. Her opinion is that the back stiffness, pain and muscle spasm will be ongoing and chronic in nature with remissions and exacerbations and will require Mr Brodie to be diligent in his ongoing rehabilitation (engaging in regular walking, core muscle strengthening, attention to posture, care with any lifting, and avoiding excessive forces on his lower back). He will have to be careful in his occupational activities to avoid any flare-ups.[17]
[17] PCB45
62 In the long-term, she states that he has a back condition that will need to be actively managed.[18] Finally, she considers that Mr Brodie’s condition has stabilised and no further investigations are required.[19] No further specialist opinions are required and he will be required to self-manage his back condition.
[18] PCB46
[19] PCB47
63 Mr Brodie has also been examined by a number of medico-legal specialists.
64 He was reviewed by Dr Mary Wyatt at the request of the insurer on 14 October 2009. She diagnosed disc protrusion with sciatica. She considered, initially, that the sciatica was a recurrence of the problem from 2004 and that there was nothing to indicate a work-related aggravation of the episode of 2004. However she revised that opinion when provided with further documentation, including scans, and reports from the treating General Practitioner, Mr Johnston and the Spinal Surgeon, Mr Brazenor.
65 She noted that the General Practitioner’s report included a history outlining when Mr Brodie fell whilst using the compactus at work, landed on his back and then had substantial back complaints. She stated that if one accepts the history then one would accept employment being a significant contributing factor to the current back problems. The incident described is reported as significant, causing immediate pain and ongoing problems.
66 Mr Kenneth Myers, Surgeon, examined Mr Brodie on 4 October 2012 and 22 April 2013 at the request of his solicitors. He diagnosed a back injury, more particularly described as degenerative intervertebral disc disease causing pain in the back, epidural and epineural fibrosis causing persistent restricted function and symptoms in relation to the left S1 nerve root. He considered that the condition is likely to be permanent.[20]
[20] PCB78
67 Mr Myers accepts that it was a fresh injury in the setting of pre-existing degenerative intervertebral disc disease.[21]
[21] PCB 73
68 Dr Gary Davison, Occupational Physician, examined Mr Brodie on 1 November 2012. In response to the question “What injury does the worker have?”, he says he presents with recurrent lower back pain and left lower limb pain associated with sensory disturbance. He has undergone surgical treatment for left sided intervertebral disc prolapse and L5/S1 segment with left L5 nerve root involvement. He says it would not be possible to exclude employment as a cause in the injury and that is likely to be the situation indefinitely.
69 He says the following restrictions should be observed indefinitely:
1. Vary posture regularly and at will.
2. Avoid manual handling greater than 10 kilograms in force or weight at bench height.
3. Avoid frequent and/or sustained bending or twisting.
4. Self-paced duties.
70 He postulates that he did not consider Mr Brodie’s injury to be a new one, rather it is a continuation of the previous injury.
71 Associate Professor Owen White, Neurologist, reviewed Mr Brodie at the request of the defendants. When seen on 30 August 2011 he noted his complaints of mid-low back pain aggravated by sitting for prolonged periods that could be associated with posterior left leg pain, numbness and dysaesthesia in the L5/S1 distribution on the left.
72 He considered that Mr Brodie had lumbar degenerative change with disc protrusion at L4/5 and focal disc prolapse at L5/S1 with impingement on the left S1 nerve root. He postulated that there does appear to be some pre-existing degenerative change that has contributed to the current condition.[22]
[22] DCB15
73 Mr Michael Shannon, Surgeon, examined Mr Brodie on 12 April 2011 and 1 October 2012. He considered that he essentially had ongoing symptoms of mechanical back pain in the setting of a history of disc prolapse with radiculopathy requiring discectomy. He was aware of the previous injuries to his back, including the injury with Ideal Dairies in 1990, further injury in 2004 and the episode in 2009.
74 He was unable to establish any specific injury at work but states that Mr Brodie clearly had a flare-up of his pre-existing disc protrusion and that was likely to occur at any time whether at home or at work. He did not think that Mr Brodie was fit for any work involving prolonged or repetitive bending or heavy lifting. He was capable of office work with the option of varying his posture.[23]
[23] DCB19
75 Mr John Hart, Orthopaedic Surgeon, reviewed Mr Brodie on 23 October 2012. He expressed the opinion Mr Brodie suffered a series of injuries to his back resulting in damage to the L4/5 and L5/S1 discs with left S1 nerve root compression and mild contact of the L5 nerve roots bilaterally and possibly the right L2 nerve root, although clinically that did not seem to be a problem. He notes that Mr Brodie presented with left buttock pain radiating to the left lower extremity on occasions but not true sciatica, which was relieved by surgery. However, he complained of persistent numbness that he describes as “restless leg” on the left.
76 He states that there is evidence of a radiculopathy affecting predominantly the S1 nerve root with a diminished left ankle reflex which was present pre-operatively, according to Mr Johnston, and altered sensation over the S1 dermatome and possibly the L5 dermatome in the left lower leg extremity.
77 He states that there is no evidence of any neurotension signs, however, and these neurological signs are therefore residual effects from his pre-operative radiculopathy.[24]
[24] DCB34
78 Having considered all the relevant material, including Mr Brodie’s presentation, his treating doctors’ reports and reviewing the investigative material, Mr Hart states that it is reasonable to conclude that the episode on 29 August 2009 does seem to have been authenticated and resulted in an aggravation of the disc prolapse at L5/S1 that led to the surgical procedure.[25] He considers that Mr Brodie has degenerative disc disease affecting multiple discs in the lumbar spine and that he would not be suited to any occupation which required him to repetitively bend, lift weights in excess of 10 kilograms from waist level, or push and pull heavy objects. He could undertake sedentary work similar to that which he was performing when he ceased work. He would need the opportunity to alternate his posture.[26]
[25] DCB36
[26] DCB37
79 In a supplementary report Mr Hart states that it is likely that Mr Brodie will continue to suffer from intermittent back pain and he would be well-advised to always work within the restrictions of avoiding bending, lifting more than 10 kilograms, and performing heavy pushing and pulling.[27]
[27] DCB43A
80 I have come to the conclusion that the plaintiff’s version of the events ought to be accepted and am satisfied that he suffered a compensable injury as a consequence of the incident at work on 29 August 2009.
81 I am satisfied on balance that he sustained a significant aggravation of his degenerative lumbar disc disease resulting in disc prolapse at L5/S1 level that led to the surgical procedure. That finding is consistent with the preponderance of medical opinions expressed by Mr Johnson, Dr Wyatt, Mr Myers, Dr Davidson and Mr Hart.
82 I am further of the view that that injury was not an extension of the 2004 injury nor was it just a temporary aggravation as asserted by Mr O’Brien but rather an aggravation that caused discal damage with ongoing consequences the effect of which is permanent.
Consequences
83 Following surgery Mr Brodie was able to return to his job with the defendant, initially on reduced hours, and then building up those hours until he returned to normal hours and normal duties. For personal reasons he then went to live in Queensland. He relocated to the Sunshine Coast in September 2001.
84 On or about 13 January 2012 he separated from his wife and then moved to Townsville in early February 2012. He returned to Melbourne on 26 August 2012 and has remained living in Melbourne and working part-time.
85 I reject Mr O’Brien’s submission that he currently is in the same position as he was prior to surgery.
86 Mr Brodie requires ongoing conservative medical management. Dr Mala Thondan, General Practitioner, and Dr Debbie Wong, osteopath continue to treat him. He remains under Mr Johnson’s care.
87 I accept that Mr Brodie has ongoing symptoms, in particular, he gets referred pain in the left leg, sciatica and numbness into his left foot. The only thing he does not have a problem with is his big toe. The rest of his toes are quite numb.
88 His condition significantly affects his sleep he suffers restless leg syndrome.
89 He has back stiffness, chronic pain and muscle spasm as recorded by Dr Thondan. He is required to take medication for pain relief. He takes Endep 25, Prednisolone, some Endone and some Oxycontin for pain.[28] He takes Oxycontin generally one per night to assist with his sleep. If he does not have medication, he suffers insomnia. He takes 25 milligrams of Endep during the day and at night as well. He takes Prednisolone during the day and Endone as required for pain. He takes the medication on an “as needs” basis.
[28]T16, L16-18
90 His sporting and social life has decreased. He cannot stand for long periods of time. Sitting aggravates his leg and his left buttock. He has to constantly move about. He does not play any sport. He continues to visit his children, who live with their mother on the Sunshine Coast, travelling to see them once per month. He is able to go walking along the beach with the children but he does not kick a football or play soccer with them. Previously he was able to do those sorts of things with his children.
91 Since 2009 he has only ridden his motorbike sparingly because the crouch position on the motorbike aggravates his leg condition.
92 He must be cautious and maintain good back care. The limitations placed on him will continue indefinitely. His back remains vulnerable to further injury.
93 He can manage his activities of daily living doing cooking and his own washing. He has mowed the lawn but suffers afterwards. He is living at his deceased mother’s home and says he does what he can but that he does not have a very good quality of life.
Conclusions
94 I am satisfied that Mr Brodie suffered a compensable injury namely, aggravation of lumbar disc disease with lumbar disc prolapse and radiculopathy, only partially relieved by surgery and that it is permanent in the relevant sense.[29]
[29]In determining the application I must be satisfied that the impairment of the body function must be permanent in the sense that it is likely to continue into the foreseeable future.
95 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.[30]
[30]S134AB(38)(b) of the Act
96 Sub-section (38)(h) provides that consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
97 I am satisfied that the injury has led to consequences that are very considerable and which satisfy the criteria for serious injury.
98 Overall, I am satisfied that the impairment or loss of bodily function has resulted in pain and suffering which, when judged by comparison with other cases in the range of possible impairment or loss of bodily function, can fairly be described as being more than significant or marked and as being at least very considerable. (See s.134AB(38)(c)).
99 Accordingly, there will be leave to the plaintiff pursuant to s.134AB(16) to bring proceedings in respect of injury sustained by him during the course of his employment with the defendant and in particular, on 24 August 2009.
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