Cannizzaro v Victorian WorkCover Authority
[2019] VCC 355
•28 March 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-18-01844
| GIOVANNI (JOHN) NATALE CANNIZZARO | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | HER HONOUR JUDGE QUIN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 and 5 March 2019 | |
DATE OF JUDGMENT: | 28 March 2019 | |
CASE MAY BE CITED AS: | Cannizzaro v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 355 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Impairment of the lumbar spine – aggravation
Legislation Cited: Workplace Injury, Rehabilitation and Compensation Act 2014, s335(2)(d)
Judgment: Leave granted to bring proceedings for damages for pain and suffering and loss of earning capacity.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D J N Purcell SC with Ms S Pilipasidis | Maurice Blackburn |
| For the Defendant | Mr P Y Rattray QC with Mr P A Czarnota | Russell Kennedy |
HER HONOUR:
Preliminary
1 This is an application by the plaintiff for leave to bring proceedings for common law damages pursuant to s335(2)(d) of the Workplace Injury, Rehabilitation and Compensation Act 2014 (“the Act”). The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity.
2 The plaintiff is a forty-five year old man who was employed at P & G Steelfixing Pty Ltd (“the employer”) as a steel fixer from 15 April 2013 until 10 September 2016. The plaintiff claims that he injured his back on 26 February 2016 when he was attempting to pull a steel bar out of a bundle of steel. (“the incident”). The plaintiff returned to work on a graduated work program, starting three days a week in June 2016. Ultimately, he could not cope with the work and his job was terminated on 10 September 2016. He has not worked since that date and claims that his work-related injury has prevented him from doing so.
3 The plaintiff swore two affidavits dated 22 December 2017 and 25 February 2019 in support of his application and was cross-examined. The plaintiff tendered pages 15-162 of his Court Book (“PCB”), and pages 31-46 and 149 of the Defendant’s Court Book (“DCB”). The defendant tendered pages 3-23; 47-123 of the DCB with additional pages of three bundles identified as:
(i) Patient Health Summary with entries between 22 January 2007 and 23 December 2016 (the clinical records);
(ii) Certificates of Capacity, between 10 April 2006 and 24 October 2008;
(iii) TAC Certificates of Capacity, between 3 March 2016 and 23 October 2017.
4 I have read all of the tendered documents, including medical reports and the clinical notes, together with the transcript of the proceedings.
Issue
5 Serious injury having been conceded, the only issue in these proceedings is whether it has been established that the compensable injury continues to contribute to his spinal condition – whether any work-related aggravation continues to be a cause of impairment or ongoing incapacity to the plaintiff.[1]
[1]Transcript (“T”) 60
6 The defendant submitted that the plaintiff had not discharged this onus – that the plaintiff was suffering from a degenerative back condition with symptoms well before the incident. The plaintiff had been engaged in this relevant heavy kind of employment for twenty years. Any incident related aggravation of his back condition was temporary, and, it was submitted, that his current condition was as a consequence of his long work history and degenerative back condition.
7 Given the limited issue that it is necessary for me to determine, I propose to summarise only aspects of the evidence relating to the incident and consequences to the plaintiff.
Background to the application
8 The plaintiff is divorced and has two children. He was born in Australia and left school after completing Year 9. He worked on his father’s farm until he was aged about nineteen years, then commenced work in the building industry steel fixing, a job which involved laying the steel base for concrete. He has had various employers doing this job over a period of about twenty years.
Pre-incident injuries to the Plaintiff
9 The plaintiff deposed and gave evidence regarding his medical history of back pain prior to the incident as follows:
· In October 2008, whilst working as a steel fixer, he had to move some steel to secure a chair under a bar and he experienced pain in his right side. He had a few weeks off work and treatment, and made a full recovery.[2]
[2]Paragraph 6, first affidavit
· In his second affidavit, after the clinical records were bought to his attention, he deposed that he recalled an episode of back pain in 2010 and that he thought that he did have some transient pain on the other occasions, but that he was unable to remember the dates. During those periods, he thought he was still working full time and performing very heavy duties.[3]
· He maintained that at the time of the incident, he had been free from back pain for several years.[4]
[3]Paragraph 2, second affidavit
[4]Paragraph 2, third affidavit
The Plaintiff’s employment with the employer, his injuries and the claimed consequences
10 The plaintiff commenced his employment on 15 April 2013. His work as a steel fixer was described by him as being very heavy and repetitive. It involved a lot of bending and it was necessary to manually fit the steel which came in large bundles. The bundles had to be lifted using overhead cranes or forklifts but once the bundles were cut open, each bar was easy to manoeuvre.
11 On 9 February 2016, the plaintiff was lifting steel in order to put clips or “chairs” underneath the steel work, so that the concrete could flow underneath. On this occasion, as he was in the process of lifting the steel, he experienced back pain. He reported the incident to the employer, attended the Craigieburn Super Clinic and was seen by Dr Rahman that same day. Dr Rahman prescribed Panadeine Forte and Ibuprofen tablets, as well as Norflex for muscle spasms. He gave the plaintiff a certificate to remain off work for a few days and a referral for an x-ray of his lumbar spine. The plaintiff did not have the x-ray, as he felt better after a few days and returned to work, completing normal duties. When reviewed by another doctor at the same clinic, Dr Sahi, on 19 February 2016, the plaintiff had no back pain.
12 The plaintiff did not experience any pain difficulties again until the day of the incident. He described how he was trying to pull a steel bar out of a bundle, that the bundles had been stacked on top of each other by overhead cranes, and each bundle was very heavy, weighing more than 300 to 400 kilograms. It was impossible to move the bundles without a crane, but there was no crane available at the time. The plaintiff had to get the steel bar out of the bundle and as he tried to pull the bar out, it was jammed between two other steel bars. In the process of embarking on this task, he hurt his back.
13 The plaintiff felt immediate pain in his back and was unable to move. He reported the incident to his supervisor and contacted his employer. His employer came to the site and drove the plaintiff to the hospital. He was given a pain-relieving injection and he remained at the hospital for a few hours. He was discharged into the care of his general practitioner.
14 The plaintiff continued to experience a lot of pain in his back and was certified unfit for duties. The plaintiff attended the Craigieburn Super Clinic on 26 February 2016 and was seen by Dr Mohammad Al-Magableh. He was provided with Panadeine Forte medication and a referral for a CT scan. The CT scan was conducted on or about 29 February 2016 and revealed damage to the plaintiff’s spine. The plaintiff was certified unfit for work and remained off work whilst trying to recuperate. He described experiencing very severe back pain and that he was barely able to move.
15 In early March 2016, the plaintiff commenced seeing Dr Islam. He referred the plaintiff for physiotherapy treatment which he commenced at the Craigieburn Super Clinic. The plaintiff was also referred to a neurosurgeon and spinal surgeon, Mr Yagnesh Vellore, whom he consulted on or about 4 May 2016.
16 Mr Vellore advised the plaintiff to continue with physiotherapy treatment and to avoid any heavy lifting, bending or twisting. He also referred him for an MRI scan. The plaintiff was informed that the MRI scan showed that he had an L4‑5 disc prolapse and that this was impinging on the L5 nerve roots.
17 The plaintiff continued with conservative treatment, namely physiotherapy, pain medication and consulting his general practitioner. He was referred to an exercise program and commenced hydrotherapy.
18 In or about late June 2016, the plaintiff attempted to return to work on a graduated work program, starting three days per week, 4 hours a day. He was still required to do some lifting and a degree of bending, even though there were work restrictions, and he was supposed to be limited to light duties. The plaintiff continued to work until 4 July 2016. He was then requested to work full time on restricted duties, which he did for about a week. His duties placed too much strain on his back, he struggled with his work and was not coping with the pain. He was ultimately told that there was no work for him and his job was terminated on or about 10 September 2016.
19 Upon ceasing work, the plaintiff attempted to increase his exercise with a program specifically designed for his back injury. Whilst doing some of the exercises, his back injury flared up and he was unable to continue doing the program.
Consequences of the incident
20 The consequences of the injury to the plaintiff were not in dispute. The plaintiff deposed in his affidavit material, gave evidence and indicated to medical professionals that:
· He continues to experience constant and ongoing back pain. The pain varies in intensity from day to day depending on the activities he is undertaking, and is made worse by prolonged sitting, standing or walking. If he remains seated for too long, he experiences an increase in back pain, which radiates into his right leg with pins and needles. Walking or standing lessens this pain.
· He can drive but doing so for prolonged periods aggravates the pain. If he drives for too long, he needs to stop and stretch. He can drive locally or for up to an hour to an hour and a half before becoming very uncomfortable.
· The pain interferes with his sleep. It is difficult for him to get to sleep and he often wakes up due to the pain.
· He takes Oxynorm and Nurofen for the pain. The Oxynorm affects him and makes him drowsy so he avoids driving when he takes this medication. He takes Oxynorm about two times per fortnight, normally after activities such as mowing the lawn or mopping or vacuuming the house. He lives on his own and has to do things for himself but generally, his back pain increases once he has engaged in such activities.
· He is depressed.
· He now consults Dr Phillip at the same practice about once per month. Dr Phillip has continued to certify the plaintiff as fit for restricted duties.
· He has found it difficult to find alternative employment due to ongoing back pain. Between March 2017 and September 2018, he undertook a number of courses regarding the work, mainly in traffic control, though he has been unsuccessful in obtaining work.
· He remains on a waiting list at the Northern Hospital to complete a pain management program. He is currently not doing any gym programs or physiotherapy as the insurance company ceased funding them.
The Plaintiff’s cross-examination
21 The plaintiff was cross examined about:
· the accuracy of the history that he provided to medical practitioners of his back pain including any treatment he received prior to the incident, and his reporting of making a complete recovery;
· his motivation to return to work and efforts he made in seeking alternative suitable employment;
· his current level of pain and medication.
Documented medical history from August 2008 – Clinical notes – Certificates of Capacity – Dr Wyatt
22 The clinical notes and Certificates of Capacity from August 2008 disclose that the plaintiff saw a number of doctors at the clinic for various reasons; however, in relation to his lower back pain, there are the following references:
(i)Consultations with Dr Harjinder Johar on 18 August and 23 August 2008
“Diagnosis Rt Sacroiliac sprain ?Disc Prolapse? Fracture Vertebrae –pt came for Xray result lumbar spine – DIAGNOSIS – muscular sprain.”
Restricted duties 19 August – 24 August 2008
(ii)Consultations with Dr Jack Miller on 14, 20, 21 and 24 October 2008
“Chronic low back pain; discussion about CT - refer orthopaedic surgeon; … feels better and wants to go back to work on trial.
Restricted duties 14 October to 24 October 2008
Off work 14, 15, 16, 20, 21, 22 and 23 October 2008; fit for work 24 October 2008.”
(iii)Further consultation with Dr Johar
On 1 November 2008, the plaintiff was still reporting pain lower back on lifting heavy weight – awaiting review by spinal orthopaedic specialist.
(iv)Dr Wyatt’s assessment
Dr Wyatt saw the plaintiff on 22 December 2008 and provided a report of the same date. This was provided in the context of the plaintiff’s worker’s compensation claim. She noted that the plaintiff had ongoing pain in the right low back, with no radiation of pain into the legs. The plaintiff reported to Dr Wyatt acute back pain developing in October 2008, but that his symptoms had significantly improved. He also reported to Dr Wyatt a previous episode of back pain a few years ago, but that had settled over a week or two, with no significant back problems from that time.
Dr Wyatt diagnosed subacute back pain and noted that the plaintiff had had the symptoms for about two months, though they had significantly improved and that the plaintiff primarily had low back pain at the time of her assessment.
As to prognosis, she expected the plaintiff’s problem to continue to settle, and that a long-term disability from this episode was not expected. She thought that the plaintiff would be able to return to his usual job as a steel fixer.
Dr Wyatt accepted that the plaintiff’s employment of lifting steel was a contributing factor to his back problem, and materially contributed to his current symptoms and minor incapacity. She did not, on the information available to her, consider it was an exacerbation of an underlying back problem.[5]
[5]DCB 5
Since Dr Wyatt’s assessment, the clinical notes continue:
(v)Further consultations with Dr Johar
· 21 January 2009 – “P/W exacerbation of lower back pain – has morning stiffness almost every day – O/E Tenderness Lower lumbar spines- paravertebral spasm. Diagnosis prolapsed disc L4-5”;
Restricted duties 21 February - 20 March 2009
· 21 February 2009 – “chronic lower back pain still persisting – can work for 8 hours a day but cannot do heavy lifting and constant bending – O/E tenderness lumbar spine – flexion and extension are limited ... chronic lumbar spine pain”;
· 21 March 2009 – “still has lower back pain although it is gradually improving in severity – has more mobility of spine – attending physio every week – O/E Mild tenderness lower lumbar spine.”
23 There are no more relevant entries until 10 February 2011.
(vi)Consultation with Dr J Chatterjee on 10 February 2011
“Lower back for a couple of days – lift heavy at work – back tender, restriction present. Restricted ROM – one of the reasons for the visit was back pain – physiotherapy, pain relief – advised to see doctor urgently if back pain getting worse, leg pain, weakness of leg, tingling or numbness of leg … .”
The next relevant entry is on 9 February 2016
(vii)Consultation with Dr Abu Rahman on 9 and 19 February 2016
· “History – injured lower back while heavy lifting at work this morning – presented with back pain since, worse on bending, nil radiation to leg, … on examination mild diffuse tenderness over lower lumber spine – tender and stiff in lumber paraspinal muscles, LROM at L spine – advised rest, analgesia and back conserving activities ... diagnostic imaging requested x-ray spine – lumbosacral”;
· “19 February 2016 – for review – no pain in the back in last few days doing normal duties needs certificate to go back to work.”
Medical evidence regarding the incident
24 Notes from the Northern Hospital on the day of the incident record the plaintiff presenting with –
“… SUDDEN ONSET LOWER BACK PAIN WHILST AT WORK. ... SHARP PAIN RAD[IATING] DOWN … [RIGHT] LEG ... [PAST HISTORY] LOWER BACK PAIN 5 YEARS AGO.”[6]
[6]PCB 45
25 The plaintiff consulted Dr Mohammad Al-Magableh general practitioner on 26 February 2016, who noted that the plaintiff had back pain at work after lifting heavy objects – he still has pain.
26 In his report dated 31 January 2017,[7] Dr Islam confirmed that he had been the plaintiff’s regular general practitioner and that the plaintiff had sustained a back injury at work in February 2016 and suffered back pain. He indicated that initially the plaintiff’s condition improved with the use of painkillers and physiotherapy, but that during a physiotherapy session, his back pain flared up again. At the time of his report, he considered the plaintiff was still struggling with back pain. He had referred the plaintiff for a CT scan and was planning a referral to a spinal surgeon, Mr Yagnesh Vellore. There was nothing in his report to suggest that the back pain was as a consequence of anything but the incident.
[7]PCB 49
27 The most recent report from the plaintiff’s general practitioner was from Dr Phillip dated 27 February 2019.[8] Dr Phillip noted that the plaintiff suffered a work related back injury in February 2016 that was conservatively treated. He viewed his current symptoms as relating to that work injury and considered the need for the plaintiff to engage in pain management and rehabilitation programs relating to his back pain.
[8]PCB 52
28 Mr Yagnesh Vellore, neurosurgeon and spine surgeon, saw the plaintiff on one occasion on 4 May 2016. He provided a number of letters or reports.[9] The plaintiff gave Mr Vellore a history of sustaining a work-related back injury in February 2016 when he twisted his back while lifting some heavy steel metal. The plaintiff presented with low back pain, together with some right-sided sciatic symptoms. The sciatic symptoms had improved with physiotherapy; however, the plaintiff continued to have low back pain. On the day of consultation, examination did not reveal any focal neurological deficit in the plaintiff’s lower limbs. Mr Veillore reviewed the MRI scan, which demonstrated an L4‑5 disc prolapse impinging on the lateral recess in the L5 nerve root. There was also a milder disc bulge at L3-4, which was non-compressive.
[9]Reports dated 13 January 2016 – PCB 37-38; 4 May 2016 – PCB 39; 1 February 2017 – PCB 40-42; 19 October 2018 – PCB 41-42 and 26 February 2019 – PCB 43-44
29 There was no indication in Mr Vellore’s material that the plaintiff had a history of back problems.
30 Given that Mr Vellore considered that the plaintiff had continued to improve at that stage, he recommended he continue with physiotherapy and avoid lifting any heavy weight above 5 kilograms, avoid bending and twisting. Mr Vellore also explained to the plaintiff that he could gradually return to work in four weeks’ time, to some modified duties with restrictions, with a view to building up work in the long term.
Medico-legal evidence – Plaintiff
Dr Umberto Boffa, consultant occupational and environmental physician, 19 May 2016
31 Dr Umberto Boffa saw the plaintiff on 19 May 2016 as requested by the defendant’s solicitors, and provided a report of the same date.[10] In terms of past history, he noted that the plaintiff reported that he had experienced back pain about ten years ago for a period of two to three 3 weeks.[11] He noted 50 per cent improvement in low back pain intensity since the incident. Examination of the plaintiff’s back revealed normal lumbar lordosis and scapular posture with no scars and midline L4 tenderness. Range of movement of the lumbosacral spine was 20 degrees left lateral flexion, 30 degrees right lateral flexion, 80 degrees forward flexion and 25 degrees uncomfortable extension.
[10]DCB 7-10
[11]DCB 9
32 Dr Boffa concluded that the plaintiff’s injury was an aggravation of lumbar spondylosis, and that his employment was a significant contributing factor to the injury. He was of the opinion that the plaintiff’s aggravation of lumbar spondylosis had not ceased, and that his current incapacity resulted from the incident. He recommended physiotherapy and other treatment and review.
33 Given the proximity of the assessments of Dr Boffa and Mr Vellore to the incident, I regard both their opinions as now somewhat outdated and not of great assistance to the issue that I am required to determine.
Mr Roy Carey, orthopaedic surgeon, 26 April 2018
34 The plaintiff saw Mr Roy Carey on 26 April 2018 and provided a report of the same date, at the request of the defendant’s solicitors.
35 Mr Carey outlined the work history of the plaintiff and the tasks that he was required to undertake as a steel fixer. Mr Carey confirmed the contents of the plaintiff’s first affidavit with him, including his description of the 9 February 2016 incident at work and the consequential back pain at that time. Mr Carey noted that it was the plaintiff’s recollection at the time of the incident that he had fully recovered from back pain.
36 Mr Carey confirmed the circumstances of the incident, including what the plaintiff was required to do, how such a task was usually undertaken, and the unavailability of alternative means at the time to do the task. The plaintiff told Mr Carey that he injured his back when pulling a steel bar out of a bundle, providing details of the size, weight of the bar and his position when undertaking that task. The plaintiff reported that in the process of removing the steel bars, pulling and twisting to the right, he developed right-sided low back pain, in the same area as described on 9 February 2016, but that on this occasion the pain was so severe that he was unable to move.
37 Mr Carey confirmed with the plaintiff details of his treatment, medication and relevant investigations. He also confirmed that the plaintiff eventually returned to some work in late June 2016 but that ultimately, he was unable to work a full day, and his employment was terminated.
38 As to the plaintiff’s past medical history, Mr Carey noted that the plaintiff confirmed that he had right-sided back pain in October 2008, that this pain caused him to have a few weeks off work, and the plaintiff agreed with the contents of his affidavit that he made a “full recovery”.[12]
[12]First affidavit, paragraph 6
39 Mr Carey was told by the plaintiff that he did not remember having any further problems with his back until the incidents in February 2016, and that he continued with normal work/normal duties with no time off or treatments until that time.
40 As to the clinical notes, Mr Carey remarked:
“Whilst the first record of low back problems was August 2008, there were further mentions in January, February and March 2009, and in February 2011. …
The next record was February 9 2016, and further entries are consistent with the history as recorded above.
During the consultation, the plaintiff had no recollection of these earlier general practitioner visits, but there is nothing in the record to suggest that he had ongoing treatments, certificates provided for time off work et cetera.”[13]
[13]DCB 37
41 Mr Carey’s opinion was that the plaintiff had continuing low back pain, in the absence of lower limb neurological symptoms, resulting from the incident. Mr Carey interpreted the imaging findings from 2008 and 2016, noting that the plaintiff had longstanding multi-level degenerative change, consistent with many years in heavy physical work.[14]
[14]DCB 41
42 Mr Carey accepted that the plaintiff had ongoing back pain, which restricted and affected his activities of daily living consistent with ongoing aggravation of pre-existing multi-level lumbar spondylosis. Mr Carey viewed the plaintiff’s symptoms of pain to have an organic (physical) basis and that he had no sign of non-organic abnormal illness behaviour.
43 Mr Carey expressed concern about some of the medication the plaintiff was taking and recommended that the plaintiff would benefit from referral to a specialist pain management physician for help with interventional pain therapies such as radiofrequency denervation.
44 Mr Carey’s prognosis was for the situation to continue into the foreseeable future without an alteration to the plaintiff’s management program as described above and dismissed the likelihood of surgery.
45 Mr Carey’s examination was consistent with both the plaintiff’s account and imaging findings, and he did not find any inconsistent physical findings. He opined that the plaintiff has chronic low back pain due to aggravation of pre-existing lumbar spondylosis, but also pre-existing Scheuermannoid changes at the thoracolumbar junction. He considered the plaintiff’s work-related aggravation from the incident continued, and still materially contributed to his current condition. Mr Carey rejected that the plaintiff showed evidence of pain disorder, chronic pain, non-organic, functional overlay signs, psychologically based symptoms and/or symptom exaggeration.
46 He noted that the plaintiff seemed a pleasant and straightforward, and indeed a stoic witness to his problem, and that his memory for events was not perfect.[15]
[15]DCB 45
Dr Jennifer Flynn, orthopaedic surgeon, 8 August 2018
47 The plaintiff saw Dr Jennifer Flynn on 8 August 2018, who provided a report dated 16 August 2018.[16] Dr Flynn had available to her the CT scan of the lumber spine dated 29 February 2016 and the MRI scan dated 2 May 2016. She reviewed those images and agreed with the formal radiological reports.[17]
[16]PCB 84
[17]PCB 85
48 Dr Flynn was provided with information from the plaintiff including the details of the incident, his current pain levels and restrictions on his activities. She considered that the plaintiff may benefit from participation in a pain management program, and considered that a SPECT bone scan may be appropriate to assess the status of the lumbar spine and potentially guide further interventional therapy.
49 As to her knowledge of the plaintiff’s past back pain, she noted:
“The plaintiff reported … a workplace injury resulting in low back pain in 2008 from which he reported making a full recovery.”
50 Dr Flynn also noted that the medical records or clinical notes provided to her contained the following information:
“On 18 August 2008 he saw Dr Harjinder Johar, general practitioner, regarding lower back pain which was thought to be related to the right sacroiliac joint. He was referred for an xray, which was reportedly normal and he was diagnosed with a muscular sprain. He was able to return to his full working duties. Mr Cannizzaro continued to see his treating doctors intermittently regarding instances of low back pain associated with lifting at work throughout 2009 and again presented with low back pain in 2011, though not again until the incident of February 2016.
On 16 October 2008 Mr Cannizzaro underwent a CT of the lumbar spine, which reportedly demonstrated disc degeneration at T11/12 and T12/L1 and a diffuse disc bulge at L4/5 mildly indenting the bilateral descending L5 nerves.”[18]
[18]PCB 86
51 Dr Flynn assessed the plaintiff as having suffered a moderately severe exacerbation of degenerative changes of the lumbar spine and an L4-5 disc protrusion causing right L4-5 exiting nerve root impingement as a result of workplace incident in February 2016.
52 Dr Flynn viewed the incident as the cause of the plaintiff’s lower back pain and did not regard as significant, or mention his condition or history of lower back pain as particularly relevant to her assessment as the cause of his current condition.
Dr Joseph Slesenger, specialist occupational physician, 23 August 2018
53 Dr Joseph Slesenger saw the plaintiff on 23 August 2018 and 14 February 2019 as requested by his solicitors, and provided three reports dated 27 August 2018, 19 February 2019 and 28 February 2019. He noted that the plaintiff continued to present with ongoing lower back pain with some radiating symptoms that had persisted since his first evaluation.
54 Dr Slesenger noted the ongoing functional limitations affecting the plaintiff’s occupational and recreational capacity. Dr Slesenger considered the retraining that the plaintiff had undergone and any employment options for him. With regard to the plaintiff’s present and future capacity for work, he considered, taking all relevant matters into account, the plaintiff could not return to his pre-injury duties or appropriate alternative employment in the foreseeable future.
55 Dr Slesenger diagnosed mechanical injury to the lumbar spine, aggravation of degenerative disease of the lumbar spine and chronic lower back pain with no evidence of radiculopathy. Additionally, he noted psychological impairment, though remarked such diagnosis was out of his area of expertise.[19]
[19]PCB 118,130
56 At the plaintiff’s most recent clinical examination, Dr Slesenger did not identify any significant non-organic features.
57 Dr Slesenger viewed the prognosis as guarded, given the length of the plaintiff’s impairment and disability and his poor response to treatment to date. In addition, he noted a number of negative prognostic factors including his social isolation, his psychological comorbidity and his current job detachment.
58 With regard to future medical treatment, Dr Slesenger opined that the plaintiff would require ongoing support from his general practitioner for both certification and medication purposes. He also recommend that he be referred to a pain specialist to address his current pain control (which appears to be suboptimal) and that he would benefit from a pain management program.
59 As to the medical history of the plaintiff, Dr Slesenger listed the clinical notes as being available to him.[20] Dr Slesenger noted:
“… a history of lower back pain in 2008 whilst ‘working with steel at work’. Mr Cannizzaro was referred for an x-ray of the lumbar spine and a CT scan, and was diagnosed with chronic lower back pain. The records are unclear as to the length of the occupational disability; however, I note ongoing certification being issued in the latter part of 2008 and ongoing symptoms recorded in 2009. There is no reference to a clearance being issued (there appears to be a gap in the records between March 2009 and March 2010).
On 10 February 2011, he presents with a history of back pain for a few days related to his work activities. There is no further reference to this episode of back pain … .”
[20]PCB 113
60 In conclusion he noted that he may have been assisted by the provision of any assessments that were conducted in 2008 and notes:
“Nevertheless, I note that at the time of the index accident, Mr Cannizzaro was in work performing heavy manual tasks. I am, therefore, of the opinion that the initial injury and subsequent associated impairment and disability is causally related to the workplace exposures.”
Medico-legal – Defendant
Mr Clive Jones, orthopaedic surgeon, 29 November 2016
61 Mr Clive Jones saw the plaintiff at the request of the defendant’s solicitors on 29 November 2016 and provided two reports dated 4 December 2016 and 19 January 2017.
62 In his first report, Mr Jones noted that there was no past history of relevance. In his opinion:
“The injury as reported to me, involved the worker twisting his spine, lifting a quite light piece of steel during the course of his employment on 23/2/16. A previous history of any back problem was denied. Pain onset was acute, and recovery has been slow and considerably disappointing to date.
…
There is no previous condition. This is a new injury.”[21]
[21]DCB 13 and 15
63 Mr Jones was of the opinion that the plaintiff’s incapacity was materially contributed to by the incident.[22]
[22]DCB 14-15
64 However, in his second report, after repeating that the plaintiff had flatly denied any previous problems with his lumbar spine, he then reported:
“The clinical notes from the Supercare Craigieburn Clinic on the other hand show him to be a regular attender there with low back pain. The first attendance is recorded as far as 18/8/08 where a diagnosis of non specific low back pain was made. Attendances continued to be made through January 2009 and 2011. It was noted that Mr Cannizzaro refused an orthopaedic referral despite his doctor's recommendation.
…
… This patient health summary makes interesting reading, and rather than an acute injury as claimed in February 2016, there is a very long past history of intermittent low back pain reaching as far back as 2008.”[23]
[23]DCB 17-18
65 Later in his second report, Mr Jones accepted that the plaintiff’s employment was a significant contributing factor, given that the plaintiff was undertaking steel fixing and the heavy nature of that task. He was of the opinion however, that the plaintiff’s underlying condition (disc degeneration and swelling) remained the cause of his work incapacity. He was of the opinion that initially the injury as a result of the incident was a material contribution to the plaintiff’s incapacity for work, but that at that time (that is the date of his report) such contribution has ceased.[24]
[24]DCB 18
66 The shift in his opinion appears explicable only on the basis of his assessment of the clinical notes and impression of the plaintiff.
Associate Professor Anthony Buzzard, general surgeon, 6 July 2017
67 The plaintiff was seen by Associate Professor Anthony Buzzard on 6 July 2017 as requested by the defendant’s solicitors and provided a report dated 7 July 2017.
68 In the course of his report, Professor Buzzard expressed concern about the accuracy of the history that the plaintiff provided to him during the consultation, being informed that any previous back pain had not been of significance. Professor Buzzard thought this was at odds with the documentation provided to him regarding the previous worker’s compensation claim by the plaintiff for back-related injury in 2008.
69 The plaintiff reported to Professor Buzzard that he had previous low back pain during the course of his work as a steel fixer. The plaintiff thought that this was about five years ago and that he may have had “a couple of days if that” off work previously because of back problems. The plaintiff reported that he did not have treatment for his back in the past, “only the odd painkillers”.[25]
[25]DCB 19-20
70 Professor Buzzard was of the opinion that the plaintiff had a degenerative disease of his spine and that that was the cause of his back symptoms. He thought that the cause of the degenerative disease was the nature of the plaintiff’s work as a steel fixer which involved fairly heavy lifting over an extended period of time. He expressed the opinion that the plaintiff’s current clinical presentation was attributable to the radiological changes over time, i.e. the degenerative changes, and not to the effect of the incident.
Dr Mary Wyatt, occupational physician, 14 August 2018
71 Dr Wyatt saw the plaintiff a second time at the request of the defendant’s solicitors on 14 August 2018 and provided a report of the same date.
72 In respect of the plaintiff’s prior back issues, she noted that the plaintiff reported that he had had a back problem some five to six years prior and that his recollection was that it had lasted a few weeks, that he not had any treatment and the problem resolved without continued back complaints.[26]
[26]DCB 49
73 Dr Wyatt noted in her second report, provision of the clinical notes, and summarised them:
“There was an exacerbation of low back pain in January 2009 and discussions about the plaintiff having a work trial but not doing heavy work. By March 2009 there is reference to the back problem gradually improving, and that the plaintiff was having weekly physiotherapy. There is reference to pain in the testes with heavy lifting in March 2010, and then the next record is of low back pain for a few days with heavy lifting at work in February 2012[27] While it was not stated, it appeared the plaintiff had gone back to work to his normal job somewhere between 2009 and 2010.”
[27]I think this is a typographical error and should be 2011
74 Dr Wyatt then summarises the clinical notes from February 2016 to August 2016. On her examination of the plaintiff, she noted there was wasting of the lower limb muscles to visual inspection and general tenderness through his lumbar spine. Investigations (9 August and 16 October 2008; and 29 February and 2 May 2016) showed degenerative changes in the plaintiff’s lumbar spine. Dr Wyatt thought the plaintiff’s clinical presentation was concordant with his radiological investigations.
75 Dr Wyatt opined that the plaintiff’s employment had been a significant contributing factor to his back problem, and that it materially contributed to his current back pain; however, she viewed the incident as being a temporary factor. She accepted that the plaintiff’s back pain became worse with the incident and that he had a degree of muscle spasm with severe back pain and difficulty moving at that time; however, he had returned to work on reduced duties. She remarked:
“In essence, I think it is generally the work he has done over the years that continues to contribute to his back problem, rather than the specific incident in February 2016.
… the general nature of the duties he has done over 22 years as a steel fixer have contributed to the degeneration in his back and his chronic back pain. His employment in February 2016 and the specific indent that occurred I believe exacerbated his back problem. I do not think the incident of February 2016, which was a rather innocuous one, contributed to his degeneration in the back, but the general nature of his duties has. I do not consider that the work contribution to Mr Cannizzaro’s back problem has now ceased.”[28]
[28]DCB 54-55
76 Her opinion as to the temporary nature of the aggravation appears influenced by her assessment of the nature of the incident and the fact that the plaintiff was able to return to work on reduced duties shortly after the incident.
Dr Ian Dickinson, orthopaedic surgeon, 18 September 2018
77 The plaintiff was seen by Dr Ian Dickinson on 18 September 2018 as requested by the defendant’s solicitors and provided a report dated 1 October 2018.
78 Dr Dickinson considered the CT scans and MRI scans from 2008 and 2016 showed disc space narrowing and apophyseal joint degeneration. He viewed that there were minor disc bulges even at the most major disc bulge at L4-5. There was no nerve root compression. Dr Dickinson was of the view that the radiological findings indicated chronic rather than acute conditions. He opined that the plaintiff’s current clinical presentation was not consistent with the radiological findings.
79 Dr Dickinson noted significant clinical findings on the x-rays. The plaintiff had evidence of congenital narrowing of the spinal canal, had disc bulging occurring in the earlier films, and that there has been progressive degenerative change in the intervening time. Dr Dickinson viewed these images as consistent with naturally occurring degenerative disease. He opined the plaintiff’s current clinical presentation was attributable to the radiological changes over time, ie the degenerative changes, and not to the effect of the incident.
80 Further, he noted:
“Mr Cannizzaro’s symptoms include symptom exaggeration. Mr Cannizzaro has some symptoms attributable to a non-organic condition.”[29]
“The back pain can be of organic origin related to the degenerative disease …
The other symptoms of pain do not have any organic physical basis. The clinical symptoms described to me and the clinical findings are not consistent with any physical abnormality.”[30]
[29]DCB 64
[30]DCB 62
81 Dr Dickinson described the plaintiff as lean and fit-looking. He considered that there was no evidence that the incident materially contributed to the plaintiff’s current condition in any way. He noted that there was pre-existing degenerative change in the lumbar spine, but that the degenerative change had not been affected by the incident. He considered that the plaintiff’s work-related condition does not still materially contribute to his current condition, and that the effects of any work-related aggravation had now ceased.
82 There is clearly a division of opinion between the medical practitioners on the question of the continuation of any incident-related aggravation to the plaintiff’s current condition. At the time of their reports, Mr Vellore, Dr Boffa, Dr Flynn, Mr Carey and Dr Slesenger were of the opinion that the incident-related aggravation continued to contribute to the plaintiff’s current incapacity and functioning. As previously noted, the opinion of Dr Boffa and Mr Vellore are of limited assistance.
83 Dr Wyatt, Mr Jones, and Associate Professor Buzzard, though they accepted the incident may have aggravated the plaintiff’s underlying condition, such aggravation was temporary only, and any effect on the plaintiff’s current incapacity or condition had ceased. Dr Dickinson was alone in his opinion that the incident did not materially contribute to the plaintiffs back condition at any time.
84 As is common in applications of this nature, none of the medical practitioners were called to give evidence or cross examined. It is necessary for me to form a view on the basis of their written reports, submissions and my assessment of the plaintiff who gave evidence and was cross examined.
Counsels’ submissions
85 Counsel for the defendant submitted that I should accept the opinions of Dr Dickinson, Mr Jones, Dr Wyatt and Associate Professor Buzzard that there was no ongoing aggravation to the plaintiff’s current condition attributable to the incident as:
· Radiological findings in 2008 and 2016 revealed a gradual degeneration of his back condition and his current presentation related to this deterioration.
· The nature of the incident.
· The plaintiff’s medical history of back pain since 2008.
· Dr Wyatt was the only medical practitioner who saw the plaintiff both before and after the incident and was in the best position to assess the deterioration of the plaintiff’s back condition.
86 Further, it was submitted that I should reject the opinions of Mr Carey, Dr Flynn and Dr Slesenger as:
· The plaintiff was not challenged by any of them regarding his account of back pain history and that in the clinical notes.
· Each of these practitioners appeared to accept the plaintiff’s account of the incident at face value, particularly Mr Carey.
· Dr Slesenger was not provided with Dr Wyatt’s 2008 report even though reference was made by him as to the possible value of such an assessment.
· It was inconsistent for Mr Carey to opine that the plaintiff had “longstanding multilevel degenerative change, consistent with many years in heavy physical work” then later, that his work-related aggravation continues to this time and still materially contributes to his current condition.[31]
[31]DCB 43
87 Further, it was submitted that the plaintiff had deliberately denied or underplayed the significance of his prior medical history of back pain – that I should not accept those medical practitioners who have accepted his account of the incident and have based their opinion on that account.
88 Counsel for the plaintiff submitted that I should be satisfied that there existed continued aggravation of the plaintiff’s back pain attributable to the incident and accept the opinions of Mr Carey, Dr Flynn and Dr Slesenger because:
· Each of these practitioners had available to them the clinical notes – they were aware of the extent of the plaintiff’s medical history of back pain, referred to it in their reports and considered it in forming their opinion;
· The defendant had requested a further report from Mr Carey, which was provided. The defendant did not seek comment or clarification of the opinion that he had expressed in his earlier report, given at that time (27 February 2019), the defendant had available to them reports of others in the same discipline, for example Mr Jones and Dr Dickinson.
· The report from Mr Carey was comprehensive, and it was clear that he took the plaintiff through all the material. When the contents of his report are considered as a whole, there was no inconsistency as submitted by the defendant.
89 It was submitted that I should accept the plaintiff as an honest witness. He mentioned a number of times both in his evidence and to Mr Carey that he did not have a good memory about the dates and attendances with medical practitioners for back pain from 2008.
90 Further, that I should reject the opinion of Mr Jones as he was clouded by views formed about the plaintiff and his reporting that there was no previous back injury – that this impacted on Mr Jones’ subsequent opinion.
91 Dr Wyatt’s description of the incident as “innocuous” and Mr Jones describing the plaintiff attempting to move something “quite light” was inconsistent with the plaintiff’s evidence and his report to Mr Carey regarding the circumstances of the incident.
92 Dr Dickinson was the only medical practitioner who did not attribute the incident as aggravating the plaintiff’s condition.
Analysis
93 The plaintiff was cross-examined and I was able to observe how he responded to challenges regarding his memory or accuracy as to the back pain he suffered during 2008 and the treatment that he received. I found the plaintiff to be an honest witness who gave a credible account of his current back pain and limited memory of back pain history.
94 The plaintiff had a continuous good record for work up until the incident, with periods of restricted duties, but continuation of work. He tried to return to work after the incident, though that attempt was short lived – he has not worked at all since about five months after the incident.
95 The plaintiff maintained that prior to February 2016, he was pain free in the back region for about five years and continued working. This is consistent with the clinical notes that reveal no record of back pain after February 2011 and his evidence that he continuously worked. He explained that he had a lack of memory regarding dates and some of those later attendances in the clinical notes were on days when the pain was worse – he was however working.[32]
[32]T10-14
96 Much was made in argument of the evidence revealed in the clinical notes and the relevant practitioners’ opinion or assessment in relation to them. These records reveal that the plaintiff saw his general practitioner in respect of his back pain in 2008 on two occasions in August, four occasions in October and one occasion in November. He was assessed by Dr Wyatt in December 2008. The plaintiff saw his general practitioner on one occasion in January, February and March 2009, and on one occasion in February 2011. All of the practitioners, except Associate Professor Buzzard had the clinical notes available to them, and some viewed their contents more significant than others. Associate Professor Buzzard had available Dr Wyatt’s 2008 report.
97 The difference in their opinions is arguably based on their assessments of the 2008 material, clinical notes, the seriousness of the circumstances surrounding the incident, as well as their assessment of the plaintiff.
98 What is clear however, is that the plaintiff did not seek any medical assistance regarding his back pain for a period of five years (apart from 9 February 2016), before the incident. The plaintiff’s significant back pain symptoms developed in February 2016 – he had been symptom free of lower back pain or had not required any medical attention for that ailment since February 2011. When he sought medical assistance regarding his back during 2008-2009, the plaintiff remained at work albeit on restricted duties. The plaintiff did not require medication, had a willingness and motivation to return to work and did so. His situation now is dramatically different – he is unable to work, uses some medication and has been recommended for pain management treatment.
99 I accept, as submitted by counsel for the plaintiff, that the opinion of Mr Jones was clouded by his assessment of the plaintiff as not being truthful in denying any previous back pain. Such is reflected in the tone and language employed in his second report. No explanation is provided for the lack of any back pain symptoms over the period 2011-2016.
100 Dr Wyatt relied on the clinical notes, her assessment undertaken in 2008, the fact that the plaintiff returned to work after the incident and that his condition improved.
101 However, the plaintiff’s return to work was on restricted duties and the plaintiff did not return to pre-injury duties or full-time work. Additionally, Dr Wyatt described the incident as “innocuous”, a description I do not accept, based on the evidence of the plaintiff.
102 Further, there is no explanation by Dr Wyatt and Associate Professor Buzzard why the plaintiff had been symptom free since 2011.
103 Dr Dickinson expressed the view that the plaintiff had exaggerated his symptoms. This is clearly at odds with the views of the other practitioners, particularly Mr Carey. Further Dr Dickinson was the only medical practitioner who attributed the plaintiff’s condition to degeneration of his back and to non-organic factors.
104 Although the specialists are all respected medical practitioners, I prefer the opinions of Dr Flynn, Mr Carey, and Dr Slesenger. If the incident aggravated the plaintiff’s back condition, which all the medical practitioners except Dr Dickinson appears to accept, because there were
· no symptoms five years prior to the incident;
· the incident caused the onset of the symptoms;
· the plaintiff had not experienced any back pain over a period of approximately five years prior to the incident and has since continued to experience significant and prolonged pain in the lower back though its intensity has varied;
· the plaintiff has been unable to return to either pre-injury or alternative work, it interferes with his enjoyment of life and he is recommended to have pain management treatment.
105 On the basis of the foregoing, I am satisfied that the back injury suffered by the plaintiff aggravated his condition and continues to affect his ongoing impairment and incapacity. Accordingly, I grant leave.
- - -
0
0
0