Cann v VWA
[2014] VCC 1690
•13 October 2014
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-13-03647
| LES CANN (JNR) | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 October 2014 | |
DATE OF JUDGMENT: | 13 October 2014 | |
CASE MAY BE CITED AS: | Cann v VWA | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1690 | |
REASONS FOR JUDGMENT
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Subject: Accident compensation – application for leave to recover damages for pain and suffering pursuant to s134AB(16)(b) of the Accident Compensation Act 1985
Catchwords: Gradual process injury – loss of lumbar spine function
Legislation Cited: Accident Compensation Act 1985
Cases Cited: Humphries & Anor v Poljak [1992] 2 VR 129
Judgment: Leave to proceed granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Cvjeticanin | Maurice Blackburn Lawyers |
| For the Defendant | Ms S Manova | Wisewould Mahony Lawyers |
HER HONOUR:
1 Les Cann (Jnr) brings this application for leave to proceed with respect to injury to his back that occurred throughout the course of his employment with Flexdrive Cables Australia Pty Ltd (“Flexdrive”).
2 Mr Cann was employed as a process worker/labourer with Flexdrive. He commenced working there on 28 January 2005 assembling cables such as brake cables and the like for cars.
3 He alleges that he suffered injury to his back throughout the course of his employment with Flexdrive due to the nature of the work that he performed, described as manual handling, that involved prolonged stooping and lifting (“the injury”).
4 On or about 6 August 2007, he developed back pain after bending over whilst sorting cables in the course of his work. A Claim for Compensation was accepted. He then had some time off with conservative treatment and returned to full-time work gradually over a period of time.
5 On or about 14 April 2008, he exacerbated the back pain at work, again whilst sorting cables. He had more time off and resumed work on reduced hours and modified duties. Ultimately his employment was terminated on 7 July 2008.
6 Mr Cann claims that he has suffered an impairment to the loss of the function of the lumbar spine as a consequence of his work-related back injury.
7 Leave to proceed is limited to pain and suffering consequences only.
8 Mr Cann gave evidence and was cross-examined. He gave his evidence in a straightforward manner. He gave the impression of being a person who suffers from genuine memory problems. He has a problem with binge drinking, a cause of which he attributes to his inability to manage chronic low back pain. His credibility was not undermined despite his obvious memory lapses. I accept his evidence and find that he is a reliable witness, particularly in respect to the critical issue of the nature of his condition following injury.
9 Throughout the hearing, I observed that he was wearing a back brace. He appeared to have postural difficulties and moved about in the witness box.
10 Mr Cann has sworn two affidavits in support of his application, dated 21 February 2013 and 3 October 2014, which he adopted as being true, subject to some minor amendments about his work history.
11 The parties tendered a series of medical reports. Surveillance material that had been obtained was not relied upon by the Defendant.
12 There is no controversy concerning the diagnosis of the Plaintiff’s injury. The general consensus of medical opinion on which the parties relied was that Mr Cann suffered an L3-4 disc annular tear producing chronic lumbar dysfunction with no evidence of radiculopathy.
13 His background is that he was born in Melbourne on 11 July 1976. He did not pass Year 10 and left school when he was aged about 15 and entered the workforce. He has a good work history doing mainly heavy manual work as a labourer, bricklaying labourer, weed and vermin control operator, landscape gardener/labourer and process work labourer with Flexdrive.
14 I accept that prior to his back injury he was a very fit man who indulged in many outdoor activities that required the free and unrestricted use of the lumbar spine; namely, riding dirt bikes, camping, fishing and undertaking martial arts. He trained in martial arts for many years and has a green belt in Karate and a black belt in Tae Kwon Do.[1]
[1]Plaintiff’s Court Book (“PCB”) 12
15 Whilst working at Flexdrive, he continued to enjoy outdoor activities and trained in Tae Kwon Do every week.
16 Mr Cann is a very tall man. His height is 6’ 3”. Part of his duties were to pick out cables and assemble them from the assembly line. In his affidavit he states that the job was made difficult by having to work in a stooping position, which was especially hard for him because of his height. Over time, he suggested a hydraulic trolley or a platform, which raised the cables to bench height so that he would not be required to stoop, but that suggestion was ignored.[2]
[2]PCB 13
17 On or about 6 August 2007, whilst working on the afternoon shift assembling cables, he was working in a bent over position for several minutes and then stood up with sudden pain in the low back, which was very sharp in nature. He stopped working and informed his supervisor, who told him to stop working and go home. Overnight, the back pain was painful and in the morning he returned to work and was requested by his supervisor to attend the Gisborne Medical Centre.
18 A CT scan was performed on 14 August 2007. The result of that scan was not available. He was told that he had a strained back and was treated with physiotherapy. He was off work and submitted a Claim for Compensation that was accepted. He remained off work for two months and returned on light duties assembling cables but not performing any bending or lifting. Over time, his symptoms improved.
19 He then developed some pain in the right shoulder at work and that was treated with non-steroidal anti-inflammatory drugs and physiotherapy. Those symptoms resolved after three months. He continued working on light duties and resumed full duties prior to Christmas 2007, working on an extrusion machine.
20 In February 2008, he returned to cable assembling. On 14 April 2007, he was picking cables up on a stooped position and suffered a recurrence of the low back pain, which caused him to cease work.
21 He re-attended the Plenty Valley Medical Centre on 23 April 2008 and a further CT scan was requested. He resumed work in May 2008 on reduced hours but his employment was terminated on 7 July 2008.
22 The CT scan performed on 4 July 2008 demonstrated a minimal broad based disc bulge at L4-5 without any evidence of neuro compression. The scan was otherwise normal, including the posterior facet joints.
23 Mr Cann drove taxis part-time for his father’s car hire business between September and December 2008, but that aggravated the back pain so he did not continue in that role.
24 Dr Mark Lun, General Practitioner, who has been primarily responsible for Mr Cann’s care, states in his report dated 12 September 2012 that since 23 April 2008, he has complained of chronic back pain. He confirms that the CT scan report of 4 July 2008 showed degenerative disc changes and a mild disc protrusion. The MRI scan report of 17 February 2010 showed much the same. He states that the back pain is still disabling, not allowing him to be as mobile as he was, and that he is always suffering discomfort and pain. The Plaintiff is on regular pain relief. He says that he is currently stable but may require retraining to re-enter the workforce.[3]
[3]PCB 26
25 Dr Lun, in his later report dated 10 June 2014, confirms that Mr Cann is still suffering constant back pain that is disabling. That pain affects his driving ability and work capacity. He also needs to wear a back brace constantly. He confirms that the Plaintiff has been using alcohol to try and control the pain.[4]
[4]PCB 28
26 Mr Cann was also treated by Dr Louise Jarvie, General Practitioner, between 8 April 2009 and 19 March 2010. She confirms in her report dated 15 September 2012 that he had chronic non-specific low back pain attributable to his employment. She confirms the symptoms of low back pain flared with unavoidable movements, sitting for prolonged periods or too much load through the back, with spasming across the lower back and occasional radiation into the sacrum and buttocks. The signs she recorded are: persistent lower back paravertebral muscular tightness varying between L3‑S1 with loss of lumbar lordosis, tight hamstrings/gluteal muscles, varying degrees of restricted flexion and extension of the lumbar spine. No positive neurological signs.[5]
[5]PCB 30
27 Dr Stephen Jensen, Musculoskeletal Pain Medicine Specialist, consulted with Mr Cann on two occasions on 8 and 26 February 2010. On the first occasion, he states that Mr Cann completed a musculoskeletal outcome measures disability questionnaire and described his pain as being 9 out of 10 in severity. He reported severe limitation in driving and attending a gym and swim program and was unable to participate in usual sporting activities or usual house duties.
28 The Plaintiff recorded the region of pain across the top of his iliac crest in the lower lumbar region spreading down towards the sacrum with no referred leg pain. This was the same area that he nominated at the hearing when he demonstrated to the Court the area of his pain.
29 He noted the Plaintiff had much difficulty sleeping through the night. He perceived that the Plaintiff had a very high level of physical disability.[6] In particular, the Plaintiff told the doctor that he had trouble with prolonged sitting and struggled to drive for more than 30 minutes. He could sit in his favourite chair for about 45 minutes, stand for a maximum of 30 minutes before needing to find a seat. He described walking as not being a problem. He could do a light load of washing and cooking. He was unable to vacuum. He said that when he was going to sneeze, he could not do this sitting down, as to do so caused severe pain.[7]
[6]PCB 39
[7]PCB 40
30 Dr Jensen reported the MRI scan dated 17 February 2010, which he viewed, suggested multi-level disc degenerative changes and a small annular tear and disc protrusion centrally at L3-4.
31 His opinion was that Mr Cann suffered from mechanical lumbosacral spine dysfunction. Given the midline location of the pain and its clinical presentation, he was of the opinion that the most likely source of his symptoms was one or other of the lumbar intra-vertebral discs. He considered that the most likely source of the pain would be the L3-4 disc.[8] He stated that it would take provocative discography to confirm this. He did not consider that was indicated given that no surgical treatment was envisaged. He urged the Plaintiff to continue with his self-managed exercise program.
[8]PCB 41
32 He confirmed, having regard to the diagnosis, that the Plaintiff was unfit for heavy manual work in the longer term, but suitable for light work, avoiding prolonged sitting activities. The prognosis was guarded and he considered that the Plaintiff would continue to have significant back pain in the long-term and doubts whether any specific future medical interventions would be required.[9]
[9]PCB 41 & 42
33 Following the Plaintiff’s attendance upon Dr Jensen, he was given a steroid injection by a general practitioner at Mill Park, which gave him relief for three to four days, but the pain recurred.
34 During 2010, the Plaintiff continued with the self-managed exercise program and would take Panadeine Forte for the pain.
35 In 2011, the Plaintiff completed a security course through Centrelink and did some security work in October 2012, working at a festival and a nightclub. He found the physical requirements of the job aggravated his back and was unable to continue.
36 Since October 2012, the Plaintiff has been unemployed and in receipt of a disability support pension, and has not attempted any further work.
37 Mr Cann’s current status is that he continues to complain of chronic low back pain aggravated by extended sitting, driving, standing or bending. He has been binge drinking to cope with the pain. He has been seeing an alcohol counsellor, Jeremy Cohen, with respect to his binge drinking. He first began working with Mr Cohen on 7 February 2012 and saw him until 21 December 2012. He then renewed contact in December 2013 and continues to see him for counselling.[10]
[10]PCB 44
38 Mr Cann’s evidence in cross-examination was that he continued to have chronic low back pain, the pain is present most mornings and he finds it difficult to move when he has the pain. It now radiates to the anterior aspects of both thighs – that is, to the front of his thighs. It does not go into the legs.[11]
[11]T17, L15–23
39 In response to a question, he confirmed that sometimes he gets flare-ups of pain, usually depending if he has been for a walk or if he has slept the wrong way, and that can last for three days and he has been bedridden.[12] He says that happens at least four times a week at a minimum.[13]
[12]T17, L24–31, T18, L1–2
[13]T18, L9
40 He describes the pain as being eight out of ten. That is for a bad flare-up. Otherwise, the level of symptoms were between three to four out of ten. It is very rare for him to be pain free in his back.[14]
[14]T18, L14–18
41 Mr Cann confirmed that he was taking medication only when he really needed it because the medication caused constipation – that is, Panadeine Forte. He tries to take it twice a fortnight.[15] In one day, he would take a maximum of three tablets.[16]
[15]T18, L19–29
[16]T19, L2–3
42 Apart from self-medicating with alcohol for the pain, he does not take any other medication. Insofar as the relief he receives from Panadeine Forte, he said that it helps a little, but the pain still niggles its way back if he sits too long or stands too long.[17]
[17]T20, L4–7
43 Mr Cann confirmed that the physiotherapy treatment ceased on 19 October 2012. He said that he has not had any further physiotherapy because he could not afford to pay for the treatments. He confirmed he had no other specialist treatment.[18]
[18]T22, L22–23
44 In cross-examination, he confirmed that he continues to live at home with his parents in Lancefield. His father is now retired and his mother is a homemaker. They attend to household chores. He does some minor household tasks and his washing. He has a girlfriend who stays with him occasionally. It is a fairly modest lifestyle. He can no longer mow the lawns. His girlfriend does that task. He watches movies and occasionally walks down the street.
45 He admitted that he was drinking two bottles of Jim Beam a day on the weekends. He admitted that he had lost his licence recently for drink-driving and that he had a prior conviction from 17 August 2009 for drink-driving. Recently, he lost his licence for three years. He denied that the main reason he was unable to get out and socialise in a free way was because he had lost his licence. He confirmed that he was not doing that, even before the loss of his licence.
46 Mr Cann confirmed in cross-examination that he no longer rode dirt bikes and that previously, prior to his back injury, he would often go out bush, riding maybe twice a month on a weekend. He sold his bikes in 2007 after the initial back injury flared.[19]
[19]T36, L21–26
47 Mr Cann also confirmed in cross-examination that he used to fix up cars, changing the oil and things like that,[20] but he cannot do that now. He also confirmed, in respect to his inability to partake in Martial Arts, that it was never specifically discussed with any of the doctors who were required to examine him.[21] He said that he was still training whilst working at Flexdrive because the Tae Kwon Do place was next door to the factory and he was actively doing that maybe once or twice a week.[22] He admitted that he told one doctor, Mr Periera, that he had not played sport in the last 10 years, but he considered he was referring to football, cricket or tennis, that type of thing, and he did not think he was asking him about Martial Arts. He said the last time he did Tae Kwon Do training was in 2007.[23]
[20]T37, L30–31
[21]T39, L11–12
[22]T39, L21–25
[23]T39, L28–31 and T40, L1–2
48 In cross-examination, Mr Cann confirmed, in respect to fishing and camping, the last time he would have gone fishing was in 2007 and that he now does not go camping anymore because he cannot lie down properly.[24] Previously, he would go up to the Murray and Eildon and would usually stay the night or stay the weekend camping. He would do that maybe twice, three times a year, at Easter, Christmas and major holidays. He would also do some fishing in the local streams, like Deep Creek. He has not tried fishing since the injury.
[24]T40, L13
49 Mr Cann confirmed he had not been going swimming or to the gym because of the lack of a driver’s licence and also his gym membership had ceased. He confirmed he still tries to do his home exercise maintenance program and he goes walking, if he can, three times a week.[25]
[25]T43, L1–4
50 In re-examination, Mr Cann confirmed that a previous relationship had ceased and one of the difficulties in that relationship was that there was a lack of interest in sexual relationships because of his back condition.[26] He further confirmed that he stopped socialising with his dirt bike riding friends because he did not want to reinjure his injury or be tempted to jump on a motorbike.[27] He further confirmed, since injuring his back, he has undertaken changes to his diet, undertaken a physiotherapy program, including water aerobics, and that he tries to get out and walk as much without being reinjured. He said he was 140 kilograms and had reduced his weight to 109 kilograms. He watches what he eats and has a food diary. He tries to walk as much as he can around the backyard, but does not like sitting in front of the television as much as he used to.
[26]T43, L19–28
[27]T44, L6–8
51 There were a number of medical reports relied upon by the parties in this application. However, the parties sought to rely primarily on those of the late Associate Professor John A L Hart and Mr Peter Wilde. Both doctors have relevant orthopaedic qualifications and both had the opportunity of recently examining Mr Cann.
52 Mr Peter Wilde examined Mr Cann on 22 July 2014 for medico-legal purposes on behalf of the Plaintiff’s solicitor. His physical examination revealed a restricted range of movement. He recorded lumbar spinal motion as flexion to 50 degrees, extension to 10 degrees, right bending to 20 degrees, left bending to 20 degrees, right rotation to 20 degrees and left rotation to 20 degrees. Neurological examination was normal.
53 Mr Wilde noted that Mr Cann completed a modified Oswestry questionnaire on 26 June 2014 that revealed pain intensity was severe, but painkillers gave moderate relief. He confirmed, with regard to personal care activities such as washing and dressing, the Plaintiff could manage, but was very slow and careful. He could lift medium weights from a bench at a convenient height. He could walk up to one kilometre, sit for an hour and stand for an hour. Even with tablets, he could only sleep two hours. Pain severely restricted homemaking and employment tasks, except for light tasks. Pain restricted his social life and he did not go out often. He could not manage journeys in the car over two hours.[28]
[28]Plaintiff’s Court Book (“PCB”) 51
54 Mr Wilde had the opportunity of viewing the CT of the lumbar spine of 4 July 2008 and the MRI of the lumbar spine of 17 February 2010. He confirmed the MRI of the lumbar spine showed disc desiccation at L2-4 and L3-4, with an annular tear centrally at L3-4. There was no evidence of a neural compressive lesion.[29]
[29]PCB 52
55 Mr Wilde confirmed the diagnosis of L3-4 disc annular tear producing chronic lumbar disc function with no evidence of radiculopathy.
56 He considered that the Plaintiff’s physical injury had been complicated by Chronic Pain Syndrome which has developed over time with increasing anxiety and depression. He postulated that the non-organic factors were more active now than the physical injuries. Thus, in his opinion, the main current diagnosis is Chronic Pain Syndrome of mixed physical and non-organic aetiology.[30]
[30]PCB 53
57 He considered Mr Cann’s prognosis to be poor, that he would expect he will report back pain and stiffness for many years to come and that there is no necessity for surgical intervention.
58 Mr Wilde confirmed that Mr Cann cannot do any physical or manual work, but could work in sedentary or light duties which do not involve bending, lifting, twisting or prolonged sitting. He has a retained capacity for light part-time work, such as light security work, or work as a patrol man or gate man for a commercial organisation.[31]
[31]PCB 53
59 Mr Wilde provided a supplementary report wherein he responded to a request from the Plaintiff’s solicitors to attribute what symptoms relate to organic and what symptoms relate to non-organic factors. In particular, he provided a comment on the extent to which Mr Cann’s organic injury alone results in pain and interference with his sleep, his activities of daily living and the need for ongoing treatment. In that context, he said Mr Cann’s injury, stripping away non-organic factors, results in mild pain which will intermittently flare up and be more intense. From time to time, he will need to use painkillers, such as Panadeine Forte. Mr Wilde confirmed he should access his local doctor for prescriptions of Panadeine Forte and guidance regarding physical exercise. The physical pain will interfere with his sleep from time to time; that is, from time to time, he will wake when he rolls in bed or moves as a direct consequence of the injury to the L3-4 disc.[32]
[32]PCB 56
60 Insofar as sitting is concerned, Mr Wilde considered that sitting for more than 60 minutes will produce stretching of the L3-4 annular disc tear which, in turn, will produce pain. Mr Cann is limited to driving no more than 60 minutes and standing for no more than 60 minutes in one place. He should not be required to bend, lift or twist under any circumstance as this will likely cause further injury to the L3-4 annular disc tear. Walking is recommended as the best exercise and will not be limited.
61 Insofar as the impact on Mr Cann’s ability to engage in pre-injury employment or similar employment, he says that is not possible. However, the Plaintiff has retained a capacity to work as a crowd controller in restricted circumstances but he would be precluded from working as a hire car driver. He could work in sedentary to light duties employment in an office situation or security work that did not require crowd control.
62 Insofar as his residual physical injury is concerned, it restricts him riding trail bikes and dirt buggies. He can camp and fish. However, he should not practise martial arts, and repairing and servicing his car would be difficult as that activity requires bending, lifting and twisting, which is not advised for fear of making his annular disc injury worse. Those consequences are likely to persist into the foreseeable future.
63 What Mr Wilde says is very much consistent with the sworn evidence of Mr Cann in terms of his physical limitations consequent upon the injury.
64 The late Associate Professor Hart saw Mr Cann on 21 May 2013 and 5 August 2014.
65 On the first occasion, he recorded movements as follows:
·forward flexion, 90 degrees;
·extension, 30 degrees;
·lateral flexion right, 20 degrees; lateral flexion left 20, degrees;
·rotation right, 20 degrees; rotation left, 20 degrees.
66 He noted multiple tender areas in the midline and to the right and left of the midline over the lower lumbar spine, maximal at L4-5 in the midline. There was no spasm of the erect spinae muscles. Low back pain was experienced on full forward flexion and the extremes of lateral flexion and rotation to both sides. Straight leg raising was to 80 degrees bilaterally, inducing low back pain, but no lower extremity pain.
67 Following the first examination, the late Associate Professor Hart considered that Mr Cann had severe symptoms, but relatively minimal clinical signs with almost normal flexion and extension of the spine, and with pain on lateral flexion and rotation. The imaging showed no significant lesion, apart from an annular tear at L3-4. There was no significant disc protrusion and no evidence of any neuro compression.
68 He considered that Mr Cann presented with chronic low back pain. There was certainly no evidence of posterior facet disc disease clinically or on imaging, and in view of the annular tear, it is likely that his pain is discogenic in origin.[33]
[33]PCB 30
69 Associate Professor Hart indicated that Mr Cann’s presentation was somewhat unusual in that he had severe symptoms, relatively normal clinical signs with no obvious over-exaggeration and relatively minor changes on imaging. He suspected a Chronic Pain Syndrome was developing in response to the back injury.[34]
[34]Defendant’s Court Book (“DCB”) 30
70 Following his further examination on 5 August 2014, movements were recorded as follows:
·flexion, 50 degrees;
·extension, 10 degrees;
·lateral flexion right, 10 degrees; lateral flexion left, 10 degrees;
·rotation right, 20 degrees; rotation left, 20 degrees.
71 These are indicative of a restriction in movement greater than the earlier examination. All movements produced pain at the extreme. Extension was the most painful and most limited movement. Straight leg raising was to 90 degrees bilaterally and the slump test was negative bilaterally.
72 Associate Professor Hart confirmed, following a review of the clinical notes of the general practitioners responsible for Mr Cann’s care, that he had been complaining of low back pain constantly since 2008 that was managed conservatively. He confirmed the range of movement in his spine had decreased since the first examination and that the Plaintiff now has limitation of extension which was previously to full range.[35] He thought it significant that Mr Cann was wearing thongs on a very cold day, indicating that he did have difficulty in bending over to put on shoes and socks.
[35]DCB 40
73 Associate Professor Hart postulated, given Mr Cann now presents with more limitation of extension than flexion, that there may be some posterior facet involvement and that it is appropriate for further investigations to be undertaken in view of the persisting pain and worsening of the Plaintiff’s condition. He considers now that Chronic Pain Syndrome has established.
74 He could not comment on whether there was any organic cause for the reduction in the range of movement of the lumbar spine in the absence of further imaging. He considered that the Plaintiff would be unable to carry out any work that involved bending, lifting, pushing or pulling, or walking. He is able to sit for 45 minutes and stand for 60 minutes. He can perform light work within these limitations.
75 However, having said that, Associate Professor Hart noted that Mr Cann’s back pain is very unpredictable and, when it is severe, he is scarcely able to move at all.
76 The Plaintiff has been assessed by Orthopaedic Surgeons, none of whom state that he is exaggerating the consequences of his injury. Both Mr Wilde and the late Associate Professor Hart state given the severity of his symptoms and complaints and the findings on the most recent examinations, that those findings cannot be explained by physical injury alone. Therefore there is a non-organic component which cannot be taken into account for the purposes of assessing the physical injury (s 134AB(38)(h) of the Act).
77 Nevertheless, I am satisfied by reference to Mr Wilde’s supplementary report that the non-organic consequences can be stripped away. Mr Wilde has proffered his opinion about the consequences which he attributes solely to the physical injury. I have accepted his analysis. Much of what he attributes to the organic injury is consistent with the Plaintiff’s evidence.
Conclusions
78 The test for determining whether an applicant for leave under s 135A(4)(b) of the Act has suffered serious long-term impairment or loss of a body function is subjective, in the sense that it is the effect on the particular applicant’s body function that must be considered. That determination, however, must be objectively made: it is the judge’s opinion as to the seriousness of the impairment or loss – not that of the applicant or his or her medical practitioners – that is decisive.[36]
[36]Humphries v Poljak [1992] 2 VR 129, 137.
79 In making my assessment I have been guided by Mr Wilde’s supplementary opinion and the evidence of Mr Cann which I accept as being reliable. He has a seriously compromised back injury that is not amenable to surgical intervention.
80 I find that the Plaintiff suffered compensable injury in the course of his employment with Flexdrive, namely injury to his back, described as an L3‑4 disc annular tear producing chronic lumbar dysfunction with no evidence of radiculopathy.
81 I accept that as a result of the injury the Plaintiff suffers impairment of the body function of the lumbar spine with pain and suffering consequences.
82 I accept what the Plaintiff says in his affidavits about the consequences of the impairment.
83 I accept that he suffers chronic low back pain and the pain is discogenic in origin.
84
I accept the Plaintiff experiences regular flare ups of pain that can be spontaneous and/or brought on by sitting or standing too long or bending.
He manages the pain with Panadeine Forte used sparingly because of the adverse effects that medication has on his bowels. He also binge drinks because it helps assuage the pain.
85 His back pain makes sexual relations with his girlfriend difficult.
86 The back pain causes regular disruption to his sleep which makes the Plaintiff tired throughout the day.
87 The Plaintiff’s lifestyle has been significantly impacted on by reason of the injury and the consequential restrictions not being fit to perform any physical or manual activities that involve bending, lifting, twisting or prolonged sitting. Those limitations exclude him from participating in his pre-injury recreational activities of dirt bike riding, Martial Arts and camping and any employment roles that require such activities. He can only perform modest household duties and can no longer mow the lawn. His social life has been affected.
88 The Plaintiff has had to endure his experience of pain for many years now. His condition is stabilised and the likelihood is for the low back pain to continue with ongoing conservative management.
89 For a 38 year old man those ongoing consequences are very considerable.
90 I am satisfied that Mr Cann has discharged the burden of proving, on the balance of probabilities, that he has suffered an impairment or loss of a body function of the lumbar spine, as a consequence of the injury complained of, that is both serious and long-term.
91 I consider the pain and suffering consequences of the impairment of the lumbar spine can be described as “certainly more than significant”, and “at least … very considerable”.[37]
[37]Humphries & Anor v Poljak [1992] 2 VR 129 at 140
92 In all the circumstances, I consider that the pain and suffering consequences of the Plaintiff’s lumbar spine impairment are more than considerable when compared with other cases in the range of long term impairments of the body function of the lumbar spine.
93 Leave to proceed is therefore granted.
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