Browne v Middendorp Electric Company Pty Ltd
[2009] VCC 529
•18 May 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT BALLARAT
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-08-00089
| PAUL FRANCIS BROWNE | Plaintiff |
| v | |
| MIDDENDORP ELECTRIC COMPANY PTY LTD | Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Ballarat |
| DATE OF HEARING: | 4 and 5 May 2009 |
| DATE OF JUDGMENT: | 18 May 2009 |
| CASE MAY BE CITED AS: | Browne v Middendorp Electric Company Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0529 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – injury to the lower back – pain and suffering only – whether consequences to the plaintiff are serious.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Jordan SC with | Slater & Gordon |
| Mr M Nightingale | ||
| For the Defendant | Mr P Scanlon QC with | Herbert Geer |
| Mr I Gourlay | ||
| HER HONOUR: |
1 This is an application for leave to bring proceedings for damages for pain and suffering pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the defendant, in particular on 5 April 2005 (“the said date”).
2 The plaintiff brings this application pursuant to clause (a) of the definition of serious injury to be found in s.134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
3 The impairment of body function relied upon in this case is the lower back.
4 The plaintiff relied upon three affidavits sworn by him. Both parties relied on medical reports and other medical material which was tendered in evidence. I have read all the tendered material.
Outline of s.134AB
(i) Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages;
(ii) The impairment of the body function must be permanent;
(iii) The plaintiff bears an overall burden of proof upon the balance of probabilities.
(iv) By subsection (38)(c) of the 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, which may be fairly described, at the date of the hearing, as being more than “significant” or “marked” and at least as being “very considerable”;
(v) 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;
(vi) Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases;
(vii) I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602 in reaching my conclusions.
The Plaintiff’s Evidence
5 The plaintiff is aged fifty-five, having been born on 1 April 1954. He left school in Year 10 and he then worked for the Railways for over twenty two years.
6 After short periods in two other jobs, in 1997 the plaintiff commenced working for the defendant, an electrical wholesaling business. He was initially employed as a storeman and counter hand. For the last nine years the plaintiff has been employed as a purchasing officer, working fulltime, together with regular overtime.
7 The plaintiff’s duties as a purchasing officer involved serving behind the counter, helping out in the storeroom, and carrying out office work. Frequently he was required to engage in heavy lifting or physically manoeuvring heavy goods.
8 On 29 July 2000, when reaching up holding a box above head height, the plaintiff twisted and experienced sharp low back pain (“the first incident”). The following day the plaintiff could barely get out of bed, and he was seen at home by a doctor from his usual general practitioner’s practice. The plaintiff was certified unfit for work, and prescribed medication. He returned to normal duties about a week later, and then he underwent six months of physiotherapy.
9 On or about 9 January 2004 whilst bending and moving a drum underneath a bench, the plaintiff twisted and he felt a sharp pain in his lower back (“the second incident”).
10 Following the second incident, Dr Lewis, the plaintiff’s usual general practitioner, prescribed medication and sent the plaintiff for physiotherapy, which he undertook for a few months. The plaintiff had no time off work and he continued to play A Grade table tennis. His back condition improved, but it remained a problem as he continued working his normal duties.
11 On or about the said date, the plaintiff suffered further sharp low back pain when twisting to pick up a drum of cable weighing at least 20 kilograms from under a bench (“the third incident”).
12 Following the third incident, the plaintiff had about two weeks off work. He then returned to work on staggered hours, with Dr Lewis certifying him fit for light duties involving purchasing work with no lifting.
13 Over the following months the plaintiff’s low back pain increased. In September 2005, he had an x-ray. He received continuing physiotherapy treatment.
14 Having returned from holidays in January 2006 and working for about a day, the plaintiff felt unable to continue working because of his low back pain. At that time he was also suffering symptoms in his right leg and foot, including numbness in his toe.
15 Dr Lewis put the plaintiff off work for a short time and referred him to an orthopaedic surgeon, Mr Mitchell, who organised an MRI scan and gave the plaintiff a caudal injection in March 2006 which eased his pain a bit.
16 The plaintiff returned to work after a time, on light duties and on graduated hours. After four or five months he was back on full time hours, but the restrictions on lifting and not having to operate a binding machine continued and a new chair was organised. The plaintiff has never returned to unrestricted duties.
17 Over the years the plaintiff has had a range of treatments, including physiotherapy and hydrotherapy, an exercise program, cortisone and caudal injections, the use of a back brace, Pilates, painkillers, including narcotic- based medications, and anti-inflammatories.
18 The plaintiff had a couple of physiotherapy sessions at the end of 2007 at St John of God Hospital – having ceased regular physiotherapy in 2005 as it was aggravating his condition rather than helping it.
19 The plaintiff’s present treatment comprises weekly hydrotherapy, which he pays for himself, and a home exercise program. He exercises most days with a round ball. He sees Dr Lewis monthly for medical certificates.
20 The plaintiff takes Zydol (Tramal), the amount of which depends on the level of his pain, and Temtabs sleeping tablets. However, he avoids taking medication if possible. He takes Endep sleeping tablets very rarely. He regularly uses Deep Heat and heat packs.
21 The plaintiff was cross-examined at length about the colour of and number of tablets he presently takes. The plaintiff explained that he took a minimum amount of medication because he did not like taking tablets but he did so when he really needed them when he was in significant pain. He may not take tablets for two weeks and then take them every day for a week. He agreed there may be three weeks a year when he has had to take tablets every day.
22 The plaintiff thought WorkCover would have paid more than $111 for his medication, including sleeping tablets. He disagreed that he last got a prescription eighteen months ago. In re-examination, it became apparent the plaintiff was last prescribed Tramadol and Brufen in February 2009 for his back. He was prescribed slow release Tramal in April and July 2008.
23 In re-examination, the plaintiff explained that he did not like taking tablets because they made him feel lethargic. They affected his concentration and he did not think it was a good idea to take them at work when he was operating machinery.
24 The plaintiff continues to suffer constant low back pain, and regularly experiences stiffness. His level of pain fluctuates and is affected by what he does. It is frequently severe, and there are many times when he has to force himself out of bed and manage to get to work. It is extremely difficult for him to try and mobilise himself, and he tries to go for a walk most mornings.
25 His pain is made worse by lifting, bending, or twisting activity, or if he sits or stands for long periods. In cross-examination, he described his progress as “a bit up and down along the way”. Sometimes he feels alright and sometimes he does not.
26 The plaintiff continues to experience flare-ups of back pain from time to time. In early 2007, he had a flare-up of pain when twisting around in his work chair. He recently aggravated his back pain again, turning in a chair. He agreed that the aggravation had settled.
27 Mr Mitchell has booked the plaintiff in for a caudal injection on 28 May 2009 to help relieve his symptoms. In cross-examination, the plaintiff said that he went to see Dr Lewis in February 2009 because he was again having pins and needles in his toes and right foot. Dr Lewis suggested the plaintiff see Mr Mitchell. The plaintiff told his solicitors about his condition and they suggested he see Mr Mitchell. The plaintiff knew his court case was coming up soon before he went to see Mr Mitchell. The plaintiff explained that he would have seen Mr Mitchell earlier but he could not get an appointment.
28 The plaintiff continues to suffer intermittent leg problems; however they are not as severe as they were in early 2006. He gets shooting pains in his right buttocks every day.
29 The plaintiff’s back condition continues to interrupt his sleep pattern, and he experiences broken sleep every night because of back discomfort and stiffness. Sometimes he gets only two or three hours of sleep because of severe back pain which wakes him and keeps him awake.
30 Since childhood the plaintiff has suffered from a problem with his knees which has from time to time caused him niggling problems but he has lost no time from work because of it. He agreed in cross-examination that his knees continue to be a problem for him to the present time and it makes it difficult for him to exercise.
31 The plaintiff saw a specialist, Mr Byrne, on one occasion because his left knee was causing a lot of problems with mobility. Mr Byrne told him to come back to see him when he felt he needed something done. The plaintiff has not seen him again.
32 The plaintiff agreed that his left knee causes him problems every now and then. His left knee pain “is there sometimes” and sometimes maybe it causes him to limp. “Sometimes every now and then there is pain - a little bit of pain” but it does not hinder him doing anything. It does not cause him problems walking long distances and he continues to go for a walk every morning for about a kilometre and a half.
33 The plaintiff remains in the employ of the defendant and is engaged in counter and telephone sales on the restrictions suggested by Dr Lewis. These involve no lifting in excess of 3 kilograms, and an ability to walk around during the day.
34 In September 2007, the plaintiff deposed that he coped reasonably well with his duties; however there had been times when they had been too physically stressful for his back, such as when stocktaking
35 In April 2009, the plaintiff deposed that work is often very difficult because of his back, but he has to put up with it and try to stay at work. He may experience many periods, sometimes for weeks, when he is in absolute agony at work.
36 Until recently the plaintiff has been required to work four hours overtime per week, and on occasions four hours one Saturday per month. His overtime during the week has now been reduced to two hours. The plaintiff is grateful to have a job, and he has grave concerns about the future. It is not easy for him working in pain forty hours a week or so. When he gets home, after doing a few necessary chores and his exercises, more often than not he rests by lying on the couch for some time.
37 The plaintiff is concerned in the present economic climate that his job may be in some jeopardy, as there have been people put off at other stores run by the defendant. However, in cross-examination, the plaintiff agreed that there was nothing happening in the workplace to lead him to believe that his job was other than full time and ongoing.
38 The plaintiff is concerned that if he lost his present job, given his age, condition, background, and experience, he would have great difficulty obtaining any work in Ballarat and the surrounds.
39 Before injuring his back, the plaintiff was an active person and he led a satisfying lifestyle. He enjoyed a range of activities, including pushbike riding, gardening, and going on drives.
40 The plaintiff had been a keen table tennis player for about thirty years and was a member of the Ballarat Table Tennis Association (“BTTA”). He played A Grade Pennant table tennis in Ballarat and he won several trophies. He led an active social life through his membership of the BTTA.
41 The plaintiff tried to continue playing in the second half of 2005 as he had committed himself to the team for that season. He even tried to play in a back brace, but it was obvious that he could not continue, and it hurt him deeply when he had to give it up. He has resigned from the BTTA and he has not played since the end of 2005.
42 The plaintiff agreed that his knee was playing up at that time but that was not the reason he stopped playing. Whilst the plaintiff agreed that table tennis would not be the ideal sport for someone with a “crook knee”, he was sure he did not miss any games because of his knee.
43 Having worked all day, it would now be a problem for the plaintiff to then play table tennis as he would have to pick up the ball two or three hundred times during a game. Whilst initially the plaintiff agreed that he could play table tennis at a lower level, he confirmed he would have similar difficulty picking up the balls at whatever level he played. He used to enjoy the rivalry and the camaraderie, and for so many years he looked forward to playing. He would now get no satisfaction from the social interaction playing at a lower level
44 The plaintiff is not able to ride a bike, having last tried to do so about four years ago. He still rides an exercise bike but not every day. He could ride every day if time permitted. He could not ride outdoors because of the hills. That was, to a certain extent, because of his knee problem, but mainly because of his back, as being bent over the handlebars was not good for his back. The plaintiff agreed that the most active part of his body riding a bike up a hill would be his knee. For that reason he had chosen an indoor bike. He agreed he had given up riding outdoors because of both his knee and back problem.
45 In re-examination, the plaintiff said that his knee problem had never stopped him riding a bike to the extent that he wanted to. He missed riding a bike, having ridden about 20 kilometres per week, four times a week, before the third incident.
46 Prior to the third incident, the plaintiff enjoyed a happy marital relationship, and enjoyed good relationships with his children. He believed he was a tolerant person and reasonably easy to live with, and he did some household chores.
47 The plaintiff’s back injury continues to affect his relationship with his wife and children, and he derives less enjoyment from those relationships. He believes his back injury has made him more difficult to live with, and he is less tolerant and patient, and he is snappy with family members. The plaintiff often gets frustrated, and tends to take out his frustrations on those around him. He feels sad about the impact that his back continues to have on his family relationships.
48 The plaintiff’s back condition has significantly affected his sexual relationship and reduced his enjoyment of this aspect of his marriage.
49 The plaintiff’s back injury affects his ability to drive distances, and has impacted on social activities, including driving to Melbourne to see friends. As a result, he has lost contact with them, and he derives less enjoyment from social activities.
50 The plaintiff cannot do all the maintenance and other jobs around the house that he would like to. Many tasks, such as raking up and cleaning the yards, he has to do in much shorter bursts. The pergola he built twenty years ago is in need of repair, and he has had to get someone else to replace the posts. He will need help re-roofing it. But for his back, the plaintiff would have done these jobs himself. He finds it very embarrassing and belittling to have lost a great deal of independence, having to be reliant on others.
51 The plaintiff continues to do gardening, however his ability to undertake this task has been affected by his back condition. It now takes him a lot longer to do gardening. He now does “bits and pieces”. He mows the lawns every now and again.
52 The plaintiff has lost a lot of his former energy and fitness, being less physically active than he used to be, which he believes largely explains his weight increase. He often feels tired, particularly as he is unable to get much uninterrupted sleep because of back pain.
53 The plaintiff has lost confidence, and is usually on edge mentally. He is often scared of doing things that might cause a flare-up of back pain. He has taken to drinking more alcohol since the third incident, as it deadens the pain to some extent and also helps him to get a better night’s sleep. Over time the plaintiff has developed depression as a result of his back condition. He had previously experienced depression in about 1996, but he overcame it.
The Plaintiff’s Medical Evidence
54 The plaintiff’s general practitioner, Dr Charles Lewis of Sturt Medical Practice (“the Practice”), reported in April 2009 that the plaintiff continues to suffer low back pain and stiffness. On examination, his back movements are limited.
55 Dr Lewis noted that the plaintiff’s low back pain was variable but occasionally could be significant. On one occasion the plaintiff travelled to Geelong for a work function and fainted because of back pain. Dr Lewis noted the plaintiff takes Tramal occasionally for the pain, which radiated from the low back to the right buttock. Since the caudal injection in 2006, the plaintiff’s pain had not radiated down the right leg.
56 In Dr Lewis’ view, the precise nature of the physical/organic injury suffered by the plaintiff to his low back in the course of his employment was an aggravation of his lumbar spondylosis. The three incidents at work had aggravated the plaintiff’s pain and finally resulted in a disc protrusion at L4-5, with impingement of the right L5 nerve root.
57 Dr Lewis thought that the consequences of those injuries in respect of the plaintiff’s work capacity were significant. In his view, the plaintiff remained fit only for light duties. He considered the existence of the plaintiff’s back problem would definitely reduce his employability.
58 In Dr Lewis’s view, the consequences of the plaintiff’s back condition on his enjoyment of life were also significant. He noted the plaintiff cannot pick up his grandchild, he is unable to go for long drives and he is limited in his capacity to do odd jobs around the house, including gardening. His back pain keeps him awake at night, and occasionally he has to take a sleeping tablet. The plaintiff continues to require permanent hydrotherapy and an exercise program, and he is obliged to take medication he would otherwise do without.
59 In Dr Lewis’ view, the consequences of the plaintiff’s back condition were likely to continue into the foreseeable future.
60 Mr David Mitchell, orthopaedic surgeon, first examined the plaintiff in February 2006, at which time he arranged for the plaintiff to have a caudal injection and an MRI scan.
61 Mr Mitchell diagnosed an L4-5 disc protrusion, right L5 sciatica, and left L5 eminent. He noted that the caudal injections had rectified the plaintiff’s leg pain but not his back pain, and as of May 2006, he expected the plaintiff would eventually require a laminectomy or fusion.
62 Mr Mitchell examined the plaintiff in April 2009 when the plaintiff complained of being in trouble with his back and right leg pain. The back pain was also on the left side; the right leg pain was right down to the foot; it somewhat abated, but not dramatically.
63 Mr Mitchell noted that the plaintiff was already controlling his posture and avoiding sitting for too long. Clinical examination demonstrated intact knee and ankle jerk, normal EHL strength, and normal sensation.
64 Mr Mitchell approached WorkCover to fund a further caudal injection. He noted that the plaintiff needed to work on posture management and that physiotherapy was a better approach if the plaintiff’s problem was predominantly back pain.
65 On 4 May 2009, Mr Mitchell reported that the plaintiff’s condition was stable. The plaintiff was currently having fluctuation in his symptoms, and he had developed sciatica again down his right leg into his foot. Mr Mitchell noted that a caudal injection had been arranged for this without being aware there was a complicating factor that the plaintiff’s legal case had reached a crescendo.
66 Mr Mitchell thought the plaintiff may require intermittent caudal injections over the years, and may benefit from an MRI scan to further exclude consideration of surgery.
67 Mr Schofield, orthopaedic surgeon, has examined the plaintiff on two occasions: firstly, on 5 September 2008, and most recently on 16 April 2009.
68 On the first occasion the plaintiff complained of low back pain present all the time. There was also intermittent right buttock pain not extending down his leg. On re-examination, Mr Schofield reported that the plaintiff continued to complain of left-sided low back pain which had increased about two months earlier when the plaintiff also developed tingling in the toes of his right foot. The plaintiff advised Mr Schofield that the tingling had now disappeared, but he did have buttock pain as previously. He was unable to sit or stand for long periods, and he was having disturbed sleep. The plaintiff was having medication for sleep as well as pain, and felt he was not improving.
69 On examination in April 2009, Mr Schofield found there was minimal tenderness at the lumbosacral level and there was restriction of lumbar movement. There was a deformity of both knees, with the appearance of posterior cruciate deformity.
70 In Mr Schofield’s view, the mechanism causing the initial injury to the plaintiff’s spine was very typical of a significant stress being placed on a lower lumbar disc with the spine arched under load and lifting an object from a height. The acute onset of pain was consistent with the development of a posterior rupture of the annulus, causing central back pain. Although the acute swelling settled, and the plaintiff’s symptoms improved, Mr Schofield considered the plaintiff was at risk of further injuries occurring, which indeed did occur eventually, with a larger prolapse causing referred pain into the right leg, with a significant prolapse being seen on MRI. He noted the extruded nucleus had caused further aggravation of degenerative changes at L4-5 which had caused increase in chronic back pain. In Mr Schofield’s view, the slight weakness of right L5 was indicative of a persistent prolapse affecting the right L5 nerve root.
71 Mr Schofield diagnosed the plaintiff’s condition as recurrent prolapse at L4-5 eventually causing extruded disc prolapse with radiculopathy. In addition, he considered there was likely to have been aggravation of the pre-existing degenerative changes at the lumbosacral level.
72 Mr Schofield thought the plaintiff’s prognosis with regard to his pre-injury activities was poor, and that it was likely the plaintiff would suffer permanent low back pain and probable intermittent right sciatica.
73 Mr Schofield considered that there was an increased likelihood of surgery if the plaintiff continued with physical activities. In his view, the plaintiff needed medication now and in the future, and he had significant restriction of his activities both home and at work.
74 Mr Schofield thought that the plaintiff had no capacity for his pre-injury work but that he had a capacity for restricted duties. He considered there was a likelihood of long-term deterioration.
75 Dr David Murphy, consultant physician in rehabilitation medicine, examined the plaintiff on 30 September 2008. Dr Murphy thought that the plaintiff was a sensible and compliant patient who took appropriate advice from his treaders.
76 On examination, the plaintiff complained that he continued to be troubled by some pain in the right side of his back which he felt in the right buttock and radiated into the right leg.
77 On examination, Dr Murphy noted that the plaintiff was in no obvious distress. There was restriction of lumbar movement and some tenderness over the lower lumbar area and in the buttock muscles. Neurological examination showed some weakness of the right ankle dorsiflexion and right extensor hallicus. The right ankle jerk was reduced compared to the left.
78 In Dr Murphy’s view, the plaintiff sustained a lumbar injury with L4-5 disc prolapse causing an L5 radiculopathy. He thought the prognosis for the plaintiff’s injuries was fair. He considered the plaintiff’s ongoing incapacity would be permanent and that it was due to his injury.
79 Dr Murphy thought there was a possibility for deterioration in the plaintiff’s condition which may require further investigation and surgery. He considered the plaintiff’s working capacity was limited, and that he should not undertake work involving repetitive lifting, lifting of more than 3 kilograms, repetitive twisting or bending, or sitting or standing in the one place for more than thirty minutes.
80 Dr Murphy was a little concerned the requirement in the plaintiff’s current job to walk up and down stairs could cause some difficulty. He thought the plaintiff would be likely to have a lot of difficulty in finding alternative work if his present job was not available.
Investigations
81 A lumbar spine x-ray taken on 7 August 2000 showed marked disc narrowing with lesser narrowing at L4-5. Schmorl’s nodes were seen to indent the lower thoracic and upper lumbar endplates in keeping with past ostéochondritis (Scheuermann’s disease). There was facet joint degenerative change at L4-5 and L5-S1, but there was no associated lysis.
82 An x-ray of the lumbar spine taken on 16 September 2005 showed quite significant disc space narrowing at both L4-5 and L5-S1. Multiple Schmorl’s nodes involved all endplates in the lower thoracic, but also involved the lumbar vertebral bodies between L1 and L5. There was a moderate degree of retrolisthesis (10 millimetres) involving the L5-S1 level, but otherwise intervertebral body alignment was normal. Mild osteoarthritis was demonstrated involving the facet joints at L4-5 and L5-S1.
83 A CT scan of the lumbar spine taken on 2 February 2006 showed an L4-5 right posterior disc herniation compromising the right L5 nerve root (a very significant protrusion). There was L5-S1 disc degeneration and multilevel facet joint degenerative change.
84 An MRI scan of the lumbar spine taken on 6 March 2006 showed widespread disc desiccation. There was significant disc extrusion at L4-5 compressing the theca and the right L5 nerve root, with minor compression of the left L5 nerve. There was broad based disc bulging at L5-S1 and associated retrolisthesis impinging on both S1 nerve roots.
85 An MRI scan of the lumbar spine taken on 7 September 2007 showed diffuse desiccation of discs. There was a broad based disc bulge at L4-5 with a more focal protrusion right laterally, mildly compressing the right L5 nerve root. There was narrowing of the left L5-S1 neural exit foramina, and the left L5 nerve root was compromised. There was severely degenerative L5-S1 disc disease, with a shallow disc bulge mildly contacting the right S1 nerve root.
The Defendant’s Medical Evidence
86 The defendant tendered a number of reports from the plaintiff’s treating orthopaedic surgeon, Mr Mitchell. In October 2006, Mr Mitchell reported that there was no requirement for further treatment, but the possibility that it would be necessary if the plaintiff’s condition deteriorated.
87 On examination on 6 August 2007, Mr Mitchell noted that the plaintiff complained of right buttock and hamstring pain, rather than anything more severe. Mr Mitchell arranged another MRI scan on the plaintiff’s back. He noted that the earlier MRI scan showed fairly substantial disc pathology, so he wanted to do a new scan before giving the plaintiff proper advice.
88 Having received the new MRI scan, Mr Mitchell thought that it demonstrated that the large disc protrusion previously shown had now for the most part resolved. There were two degenerative discs in the lumbosacral and L4-5 level, but in Mr Mitchell’s view those alone were not a strong enough reason for the plaintiff to undergo a spinal fusion, as they were normal for his age. He suggested that the plaintiff should return to physiotherapy, and surgery should be avoided if possible.
89 Two reports from the plaintiff’s treating general practitioner, Dr Lewis, were also relied upon.
90 In October 2006, Dr Lewis noted that, fortunately, the plaintiff’s pain had improved with conservative treatment, and that it was no longer referred down the back of his right thigh. He noted the plaintiff had been allowed to return to work on light duties at his own insistence.
91 Mr Bourke, orthopaedic surgeon, examined the plaintiff on 15 August 2006 for the purposes of an AMA assessment. The plaintiff complained of constant low back pain the level of which varied. It was located in the central low back, extending into the posterior aspects of both sides of his pelvis. The pain could also extend into his buttocks. There was no pain or sensory symptoms in the legs. The plaintiff described constant low back pain, the level of which varied.
92 The plaintiff told Mr Bourke he was taking one Tramal tablet for pain at night, and Temazepam to help him sleep.
93 On examination, Mr Bourke found there was moderate limitation of lumbar flexion, extension and lateral rotation movements, with a good range of lateral flexion. There were no sensory changes in the dermatomes of either leg. The knee and ankle reflexes were present and equal.
94 In Mr Bourke’s view, the plaintiff had lumbar spine dysfunction due to disc degeneration and sequestration at L4-5. He noted an episode of L5 sciatica which now appeared to have resolved. He also thought the plaintiff had degenerative change at the L5-S1 level unrelated to the incident.
95 Mr David Conroy, orthopaedic surgeon, examined the plaintiff for the purposes of an AMA assessment on 15 May 2007.
96 Mr Conroy noted on examination that the plaintiff was in good health and moved freely about his consulting rooms. There was no spinal deformity. The plaintiff lacked a third of the range of flexion forwards, and he had an almost normal range of extension. Sensation appreciation was normal, and power was satisfactory. There was half lateral movement. Mr Conroy noted the presence of the developmental deformity of both knees.
97 In Mr Conroy’s view, the plaintiff’s history and examination were consistent with unresolved lower lumbar intervertebral disc degeneration with referred pain to the right leg.
98 Mr Anthony Buzzard, general surgeon, examined the plaintiff on 21 August 2008. At that time the plaintiff complained of a dull ache in the low back region. He told Mr Buzzard that every now and again he got pain in the right buttock, but no other leg involvement. The plaintiff said he was taking Zydol for pain, averaging two a week, and sleeping tablets and Endep as required about once a week.
99 The plaintiff told Mr Buzzard his right leg symptoms first started in 2005. He told him that he had been having intermittent pain in the left knee for a couple of years. There had been no accident to his left knee, but on one occasion four years ago he saw Mr Byrne, an orthopaedic surgeon, in Ballarat, who told him he might need an operation “down the track”.
100 The plaintiff told Mr Buzzard he was playing table tennis until 2005, but stopped because of his back. He told him he still did a little bit of gardening, and he was able to attend to all personal hygiene tasks.
101 On examination, Mr Buzzard found that there was restriction of lumbar movement, and straight leg tests were bilaterally negative. Flexion was to seventy degrees; extension twenty degrees, and all other movements to twenty degrees.
102 Mr Buzzard noted the plaintiff had a gross deformity of the knees which he had had since childhood, and was diagnosed as being due to genu recurvatum. He found there was marked limitation in the movement of the plaintiff’s knees, the right being more markedly affected than the left. He could not find any neurological abnormalities in the legs.
103 Mr Buzzard noted the plaintiff had quite gross degenerative disease in his low back. In his view, it was reasonable to accept that the first incident represented an aggravation, as did the second incident. He considered the third incident was again a further aggravation of pre-existing degenerative disease. Mr Buzzard thought that the plaintiff had recovered from the two earlier incidents, and that he had not completely recovered from the third incident, in that he had continuing symptoms, some of which were suggestive of right-sided sciatica. He noted the plaintiff had had treatment for that problem, which had improved.
104 In Mr Buzzard’s view, the plaintiff’s back condition was such that he ought not to be working in a job involving heavy lifting, bending and stooping. He thought the plaintiff’s present job was suitable.
105 Mr Buzzard considered that the plaintiff’s prognosis in the short term was of stability. However, in the longer term he thought it would probably gradually deteriorate, but not to the extent of the plaintiff requiring surgery.
106 Mr Buzzard considered there was probably a relationship between the plaintiff’s present condition and his employment with the defendant. He thought there was also a contribution to the plaintiff’s present back condition by constitutional factors, i.e., an underlying osteoarthritic process, and by his weight. In his view, half of the plaintiff’s back condition should be regarded as work-related.
107 Mr Buzzard had been provided with a medical report from Mr Byrne dated 10 November 2004. Whilst having examined the plaintiff’s knees and noting the existence of the congenital condition, Mr Buzzard did not express any further opinion about this condition.
108 Mr Michael Dooley, orthopaedic surgeon, examined the plaintiff on 19 February 2009. He noted the plaintiff presented as a sensible and genuine historian who had insight into his condition who overall was self-managing his condition well.
109 The plaintiff told him he had continued to note some low back pain and right lower limb pain, and that he had recently aggravated his condition turning in a chair and that the pain from that aggravation was settling.
110 On examination, Mr Dooley found tenderness in the low lumbar region. Flexion was to sixty degrees, and extension to twenty degrees. Lateral flexion to the left and right was twenty degrees. Rotation to both sides was to twenty degrees. There was limitation of movement, and straight leg raising to the right was to sixty degrees and on the left to eighty degrees. The lower limb reflexes were symmetrically reduced, and power and sensation were intact. Mr Dooley noted the presence of the knee condition.
111 In Mr Dooley’s view, the plaintiff suffered from degenerative disc disease of the lumbar spine, and the first two incidents aggravated this underlying condition.
112 Mr Dooley considered it probable that in the third incident the plaintiff sustained a disc prolapse at L4-5 on the right side on a background of this degenerative disc disease. He noted that following the third incident the plaintiff developed significant right-sided sciatica. MRI scanning confirmed a right L4-5 disc prolapse, and at the time there were clinical signs consistent with right L5 nerve root irritation.
113 Mr Dooley considered the plaintiff’s current condition was now stable. The prognosis, as far as Mr Dooley was concerned, was that the plaintiff would continue to note intermittent low back pain and some intermittent lower limb pain. Mr Dooley noted some patients with symptomatic degenerative disc disease could get acute exacerbations of pain that would last for six to eight weeks before settling. In such circumstances, the plaintiff might require short- term physiotherapy.
114 Mr Dooley made no comments as to the plaintiff’s capacity for employment.
Lay Evidence
115 Dale Bosworth, branch manager of the defendant, swore an affidavit on 6 August 2008.
116 Mr Bosworth confirmed the plaintiff worked thirty eight hours a week earning $16.80 per hour. The plaintiff was also working overtime of four hours per week and four hours on a Saturday once a month.
117 Mr Bosworth noted that the plaintiff’s duties consisted of counter and telephone sales. The plaintiff did not perform lifting duties in excess of 3 kilograms, and he requested assistance from others when lifting.
118 To the best of Mr Bosworth’s knowledge, the plaintiff coped well with his day- to-day activities. When required, he walked around two to three times per shift to perform back-stretching exercises. He considered the plaintiff’s attendance to be very good.
Findings
119 It is accepted that the plaintiff suffered a compensable injury on the said date.
120 The plaintiff suffered an aggravation of his pre existing degenerative back condition. Further, Mr Dooley, Mr Mitchell, Dr Lewis, Dr Murphy and Mr Schofield accepted that the plaintiff also suffered a prolapse at L4-5.
121 The plaintiff has had the pain for four years, and medical opinion is that his condition has essentially stabilised with the possibility of future deterioration. He has never been certified fit for unrestricted work since the third incident nor, in my view, is he ever likely to be.
122 Accordingly, I accept that the plaintiff’s impairment is permanent, in the sense that it is likely to last into the foreseeable future.
123 The issue, therefore, is whether the plaintiff’s impairment from the incident is “serious”; namely, whether the consequences to the plaintiff of the lower back injury when judged by comparison with other cases in the range of possible impairments or losses of body function may be fairly described as being more than “significant” or “marked” and at least as being “very considerable” – s.134AB(38)(c).
124 The term “serious” requires the impairment and its consequences to be viewed objectively and also judged on an external comparative basis against other possible impairments not necessarily in the same category: see Humphries v Poljak (1992) 2 VR 129, at 170, accepted by the Court of Appeal in Barlow v Hollis (2000) VSCA 26: see in particular Chernov JA at para 29.
125 It was submitted by counsel for the defendant that this is a case where the principles in Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292 applied, as the plaintiff is working full time with overtime. As Chernov JA observed in Sumbul, it would ordinarily be difficult to conclude that the pain and suffering consequences were serious in circumstances where it is accepted that a plaintiff is physically capable of alternative employment unless there was some other evidence that showed he experienced significant pain, or he otherwise suffered significantly from the injury.
126 Clearly, each case must be looked at on its facts and the observations of Chernov JA in Sumbul should not be treated as a general proposition that the ability to engage in full-time work precludes a finding of serious injury.
127 I note that the plaintiff in the present case was aged fifty one at the time of the incident. Having worked for twenty two years in the Railways, and after a brief period of work elsewhere, he has worked for the defendant for the last twelve years – for three years as a storeman and for nine years as a purchasing officer. The latter position required some heavy lifting or physically manoeuvring heavy goods – as a result of which the plaintiff suffered minor injury in 2000 and 2004.
128 During his working life, prior to the said date, save for a week he had off following the 2000 incident, the plaintiff has worked full time with no restriction on his duties. However, since the third incident the plaintiff has been unable, because of his back condition, to return to unrestricted work.
129 The doctors who have considered the issue of the plaintiff’s employment capacity, namely Mr Schofield, Mr Buzzard, Dr Lewis and Dr Murphy, agreed that he should not be working in a job involving heavy lifting, bending or stooping and that he was fit for only light duties.
130 The restrictions that have been imposed since the third incident are quite significant, with a lifting restriction to the very light weight of 3 kilograms, together with restrictions on activities involving repetitive bending or twisting and not sitting and standing in the one place for more than thirty minutes.
131 Whilst the plaintiff may work full time with some overtime, I accept the plaintiff’s evidence that he struggles at work and is unable to do much when he gets home from work, save for rest.
132 Mr Bosworth confirmed the plaintiff’s work restrictions and the fact that when required the plaintiff walks around two to three times per shift to perform back stretching exercises.
133 I accept that the plaintiff is a genuine and sensible man who, despite his back condition, has got on with his life, continuing to work on restricted duties and cutting down his extra curricular activities, particularly table tennis and work around the house.
134 As Nettle JA commented in Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260, at paragraph 4, it would be “unfortunate” and “wrongheaded” to treat such a stoic plaintiff less favourably “than another who, being of less strength of character, simply resigned himself to his injury”.
135 Further, I do not accept the submission on behalf of the defendant that the plaintiff’s application should also fail on the ground that he is effectively having no treatment.
136 Whilst clearly having had a wide range of treatments in the past, the plaintiff has an ongoing requirement for ‘hands on’ treatment as evidenced by Mr Mitchell’s decision to carry out a further caudal injection on 28 May 2009 after the recent recurrence of right sciatic pain. The plaintiff is still having hydrotherapy and doing exercises at home and at work.
137 Whilst reliance was placed by the defendant upon Mr Mitchells’ views in 2007, that having seen the new MRI scan, that the large disc protrusion shown previously at L4-5 had, for the most part, resolved and other changes were normal for the plaintiff’s age, it is clear from this proposed treatment that, in Mr Mitchell’s view, the plaintiff has ongoing problem of some significance.
138 Mr Mitchell, who attended court, was ultimately not required for cross- examination.
139 Whilst his intake of medication was questioned by counsel for the defendant, the plaintiff has had two prescriptions paid for by WorkCover for slow-release Tramal in the last year, and in February 2009, he was prescribed Brufen and Tramal. He has also bought limited medication himself.
140 I accept that the plaintiff continues to suffer constant low back pain, and he regularly experiences back stiffness. His level of pain fluctuates and is activity-related. I accept that the plaintiff often has to force himself out of bed to get to work and he attempts to mobilise himself by walking every morning. In addition to this general condition there are flare-ups from routine activities, such as turning in a chair, and he has to be careful with his movements so as not to aggravate his back. He continues to have broken sleep due to back pain and discomfort.
141 Save for his participation in bike riding and table tennis, there was no real challenge to the plaintiff’s evidence of his level of pain and disability.
142 There was no video surveillance or any other evidence suggesting a greater level of activity than the plaintiff described.
143 No doctors have considered there were any inconsistencies on examination nor that the plaintiff exaggerated his symptoms. To the contrary, he has been accepted as a sensible, genuine man.
144 In addition to his work restrictions, I accept that the plaintiff is precluded from engaging in a number of activities he previously enjoyed.
145 Whilst he has had a knee deformity since childhood, the plaintiff was able to play table tennis at the highest level until the end of 2005, having committed to playing for that season. His playing was unaffected by his knees before the third incident. The plaintiff now could not play even at a lower grade because of the many times he would have to pick up the ball during a game. He now could not face playing table tennis after a full day at work on his feet. He has lost the social contact with his table tennis friends.
146 Whilst the plaintiff is unable to ride a bike outdoors as a result of both his back and knee condition, I accept that his knee had not prevented him from bike riding quite considerable distances before the third incident.
147 The plaintiff’s evidence as to his inability to fully engage in home maintenance and gardening was not challenged, nor was his evidence as to the effect his back condition had had upon his sexual relationship and also his relationship with family members.
148 Taking account of all the evidence, I accept that the consequences to this plaintiff of his lower back injury, when judged by comparison with other cases in the range of possible impairments or losses of body function, may be fairly described as being more than “significant” or “marked” and at least as being “very considerable”.
149 Accordingly, I grant the plaintiff’s application to bring proceedings for damages for pain and suffering.
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