Chapman v Victorian WorkCover Authority
[2019] VCC 1814
•14 November 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-02011
| MARK FRANCIS CHAPMAN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 October 2019 | |
DATE OF JUDGMENT: | 14 November 2019 | |
CASE MAY BE CITED AS: | Chapman v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1814 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – permanent serious impairment or loss of function of the lumbar spine – aggravation or exacerbation of pre-existing degenerative changes of the lumbar spine – pain and suffering – whether consequences of aggravation of naturally occurring degenerative condition are “serious” – whether present condition due to progression of pre-existing condition – credit
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Petkovski v Galletti [1994] 1 VR 436
Judgment: Leave granted to the plaintiff to commence a proceeding seeking the recovery of damages for pain and suffering in respect of the injury sustained on 6 October 2015.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Cvjeticanin | Maurice Blackburn |
| For the Defendant | Mr P Trigar | IDP Lawyers |
HIS HONOUR:
Introduction
1 Mark Chapman applies under s134AB of the Accident Compensation Act 1985 (“the Act”) for leave to bring a proceeding for damages for “serious injury”. The “serious injury” is fully described in its physical aspect in his schedule of particulars of injury but, essentially, is a permanent serious impairment or loss of function of his lumbar spine. The “injury” was, essentially, an aggravation or exacerbation of pre-existing degenerative changes of his lumbar spine. Mr Chapman sought leave for the pain and suffering consequences of his injury.[1]
[1]Plaintiff’s Court Book (“PCB”) at page 1. The psychological impairment was not pursued.
2 There is an unusual aspect to this proceeding. Mr Chapman places considerable reliance upon an incident in 2015. He maintains he did not suffer from back problems before then. However, there is a considerable body of material showing treatment of his back before then. His answer to this is misdiagnosis. What was thought to come from his back, came from his right hip.
3 Apart from relying on this body of material, the defendant raises three issues:
(a) the consequences of the aggravation of Mr Chapman’s naturally occurring degenerative condition are not “serious” as that word is understood in this context;
(b) the effect of the aggravation of the pre-existing condition has ceased so that his present condition is due to the progression of the pre-existing condition; and
(c) the credit of Mr Chapman.
Circumstances
4 Mr Chapman is now sixty years old. He left school at sixteen and immediately started a French polishing apprenticeship, which he completed. For many years, he worked as a French polisher, whether employed or self-employed.
5 In his first affidavit, Mr Chapman describes in detail the work of a French polisher and the pressures it places on parts of the body. Mr Chapman earned a reputation as an expert in French polishing. He undertook important jobs.[2]
[2]Paragraphs 4 to 7 of the plaintiff’s affidavit sworn 13 December 2018 at PCB 11-12
6 In 1987, he started his own French polishing business, D & M French Polishing, operated it for five or six years and then ceased operating it. Although a fine French polisher, he was less a businessman. He then worked with his brother as a bricklayer’s labourer for about two years with some French polishing on the side at home. What he described as “dabbling”.
7 Working as a French polisher has been a constant theme in his working life. However, he has had doubts about it “as the best way to earn a living” and has worked in other jobs, cleaning, concrete testing and as a bricklayer’s labourer.
8 In about 1989, Mr Chapman restarted his business, now called Chapman French Polishing.
9 Mr Chapman was married at twenty-one. He has two sons, aged thirty-seven and thirty-five. He divorced and remarried, Christine, in May 1991. After his remarriage, Christine did the book keeping for his business.
10 In 2000, Mrs Chapman started her own business called “Chris’ Little Treasures”. Initially, she made things for sale, working from home but, later, in a factory in South Morang. For a long time, Mr Chapman visited the factory. He would potter around. He visited mainly for the company.
11 In July 2000, Mr Chapman started working at Kangan Batman Institute of TAFE in Broadmeadows. He taught French polishing on a sessional basis. Although starting at two days each week, after twelve months he was teaching full time. His French polishing business was largely inactive.
4 November 2005
12 On 4 November 2005, Mr Chapman was emptying bins at Kangan TAFE and injured his back. He stopped work, saw his general practitioner a few days later and returned to work on about 15 November 2005. After his return, he continued full-time teaching and did some French polishing work.
13 There was a flare-up of this back pain in December 2005 when he twisted his back while attending a Bunnings store. Thereafter, he has experienced pain in his lower back on the right-hand side and in his right leg.
14 During 2011 and 2012, he had five epidural injections, none of which gave much relief. Also, during 2011, there were MRI scans of his back and an examination by an orthopaedic surgeon, Dr David De La Harpe. He also underwent physiotherapy, chiropractic treatment and some hydrotherapy.
15 In September 2012, Kangan TAFE closed its furniture department and made Mr Chapman redundant. Dr Alexander referred him to two specialists, Mr Damian Tange and Associate Professor Bruce Love. Associate Professor Love advised him the problem lay in his right hip. In December 2012, his right hip was replaced. The pain went. By about the middle of the next year, he stopped taking pain-relieving medicines.
16 After Kangan TAFE, Mr Chapman was employed by Timbalac Coatings as a training and development executive. He worked with Holmesglen Institute of TAFE to establish a French polishing school. He also performed onsite assessments and trained prisoners on remand. After two years, he left Timbalac Coatings and went to JPC Kitchens as a full-time polishing manager. In both jobs, he also did some French polishing in his own right.
17 In about May 2014, Mr Chapman fell from a tractor, injuring his right ankle and lower back.
2015
18 On 19 February 2015, Mr Chapman started working for Silver Lynx Furniture on a full-time basis. He ran its French polishing department. Although supervising nine others, if someone did not come to work, he would replace that person. This involved heavy work. He also helped his wife in her business.
6 October 2015
19 On 6 October 2015, while at work, Mr Chapman bent down to lift a six-metre roll of carpet from the floor. He was assisted by a fellow employee. As he lifted, he felt a “pop” or “crack” in his lower back, which became painful. He saw Dr Alexander that day and, again, a few days later. There were CT scans taken of his lower back and also a bone densitometry. His claim for compensation was accepted and compensation was paid, including weekly payments.
20 Although incapacitated, Mr Chapman went to his wife’s factory, dressed in his work clothes. He did not work in any real sense. He went there for the social contact. Staying at home saw him drinking too much. This was a way of avoiding that.
2016
21 Mr Chapman returned to work in February 2016, initially, four hours each day for two days per week and doing very light work. Later, the days increased to three. Despite its lightness and his ability to work seated, his back pain worsened.
22In about July 2016, Silver Lynx Furniture stopped his light duties, saying he could return if his doctor said he was fit to resume his normal duties. While absent from work, Mr Chapman obtained a job at Holmesglen TAFE. Although he obtained some sort of approval for this step from an unidentified person handling his claim, he did not tell Silver Lynx Furniture. It dismissed him for “gross misconduct”.
23 Mr Chapman started teaching French polishing at Holmesglen TAFE between 8.00am to 3.30pm, four days a month, ten months of the year.
24 In December 2016, his weekly payments were reinstated following a Medical Panel opinion. In early 2017, they were terminated again, leading to litigation in the Magistrates’ Court of Victoria, which was ultimately resolved.
At present
25 Mr Chapman experiences lower back pain daily. It is present most of the day. When present, the pain is strong. He takes Nurofen Zavance daily for the pain. He continues to see his general practitioner, Dr Mourad Alexander. He also continues to receive physiotherapy treatment monthly.
26 Mr Chapman’s injury prevents him working as a French polisher: it is too strenuous. He can still do bits and pieces of the work of French polishing but takes too long and he finds it very difficult. He would like to return to traditional French polishing but cannot. He is deeply saddened by the loss of his trade. Absent the injury, he would have continued as a French polisher beyond the usual retirement age, such was his love of his skill.
27 Domestically, he mows the lawn with difficulty and suffers later. He relies upon his son. Once he could but now cannot clean the gutters, paint the house, fix fences and do small carpentry jobs. Other jobs he does not do.
28 Mr Chapman has a twenty-acre farm at Rushworth. It has a cabin and a generator. It is used as a holiday home. There are no livestock.
29 Mr Chapman’s sleep is interrupted by pain. He wakes feeling tired and sore. He struggles with putting on his socks and shoes. Sometimes, he struggles with toileting. That is his modest way of saying what some of the doctors recorded more bluntly, he cannot wipe his bottom.
30 Mr Chapman can sit and stand for about 30 minutes each, walk for 15 to 20 minutes and drive for about 30 minutes.
31 Mr Chapman’s work at Holmesglen TAFE was reduced from four days per month to two and involved too much driving around Melbourne. He resigned in February or March 2019 and, shortly afterwards, obtained a job at Marymede Catholic College as a woodwork technician. He is still employed there.
32 Mr Chapman describes very light work at Marymede College with the ability to move and change his posture regularly. He starts at 8.00am. He reads the timetable. He fills the glue pots. He sets out the materials for the teacher. He assembles the students outside the class and brings them in. He checks stock between classes. He has between two and four classes a day. He finishes at 4.00pm, with the last class finishing at 3.15pm. His work is largely full time. He assists the teacher. On request, he advises students. He does not work alone. He guides students making wooden articles, designing furniture and sewing. He cuts pieces of machined timber. He maintains the first aid kit. He does not sharpen the saws, which is done by specialists. The repairing of leads is done by external repairers. Chisels and the like are sharpened by specialists. He does not deal with the carpentry or metal sides. He does not put up displays and exhibitions. This is done by the maintenance department. He puts up sheets of paper onto walls for parent-teacher nights. He works within the restrictions recommended by Dr Joseph Slesenger, an occupational physician, years earlier: no pushing, pulling, carrying or lifting over five kilograms; and no repetitive bending or twisting.
33 Mr Chapman enjoys his work at Marymede College. He is able to pass on some aspects of his skills to students. It is rewarding but not as rewarding as performing his craft of French polishing.
34 Mr Chapman takes Nurofen Zavance daily.
35 From Christine Chapman’s perspective, her husband struggles to do even the smallest French polishing jobs, which she believes saddens and depresses him. He is limited at home. She sees his job at Marymede College as a blessing, which it is in more ways than one.
36 Mr Chapman does not have hobbies. He was never sporty. He has friends and drinks with them from time to time, probably to excess.
Medical and other evidence
Dr Alexander
37 Dr Alexander has treated Mr Chapman for his back since 10 August 2010, last seeing him on 21 May 2019. He now diagnoses an aggravation of moderately severe degenerative disc disease at L4-5 and severe arthropathy of L5-S1 facet joints on both sides. He links this aggravation to the nature of his work and the incident in 2015. He cannot give a prognosis.
38 In February 2018, Dr Alexander considered his capacity for work to be limited to part-time work of a non-physical nature with no bending or lifting of heavy weights.
39 In his report dated 5 September 2016, Dr Alexander summarised various attendances, investigations and treatments between 2010 and 2015.
40 The records of Dr Alexander’s clinic were admitted into evidence. They start with an attendance in April 2000 and finish with a note on 2 August 2017. Between December 2012 and 2 October 2015, there are seventeen attendances for examination and treatment with three concerning back pain. The Norspan Patch for pain relief was prescribed before and after his hip operation; afterwards until 27 May 2013.
41 It is incorrect to think Mr Chapman had no trouble with his lower back after the hip operation. The clinic’s records have two entries about attendances. One, on 27 May 2013, reads: “Sore back after doing tree stump”, while the other, on 4 March 2015, reads: “Sore back, he has to work to produce lots o[f] furniture when some one is not at work. Work normally as a supervisor.”[3]
[3]Exhibit 2
Associate Professor Love
42 Associate Professor Bruce Love, an orthopaedic surgeon, first saw Mr Chapman on 1 November 2012. He noted:
“For some years he had complained of pain in the right hip and thigh, and the symptoms had worsened to become what he called a chronic ‘tooth ache’. Certain movements produced pain and he walked with a limp.
He had seen a variety of practitioners with respect to his symptoms, most of which had assumed that back pathology was the cause of his pain.”[4]
[4]PCB 45
43 Clinically, Associate Professor Love considered the source of his symptoms came from the right hip. On 6 December 2012, there was a total right hip replacement. To Mr Chapman, the result was excellent.
Mr di Vincenzo
44 Mr Giuseppe di Vincenzo is a physiotherapist. During 2016, he started treating Mr Chapman. He has reported to Mr Chapman’s solicitors on three occasions, the most recent being on 15 August 2019.
45 In that report, he notes Mr Chapman’s capacity to perform the duties and hours of his position at Marymede College. He notes ongoing pain with his lumbar spine on both sides, mid-thoracic spine and both legs. He notes an issue of constant fatigue which causes poor sleep, either through going to sleep and then remaining asleep. He notes the taking of strong pain-killing medicines and anti-inflammatory medicines.
46 Mr di Vincenzo treats him through exercises involving active and passive joint mobility, soft tissue massage, electrotherapy modalities and strengthening exercises on the small muscles which stabilise the lumbar spine. He also advises him about posture, the use of heat modalities and the “frequent unloading of facet joints and intervertebral discs”.
47 For the future, Mr di Vincenzo recommends continued physiotherapy, together with a light strengthening/gym-based programme. He does not believe Mr Chapman’s condition has stabilised, for it is progressing. He cannot predict when it will stabilise. He believes Mr Chapman “will need to maintain a life long commitment to his future rehabilitation in order [to] maintain optimal muscle strength and function from his chronic injuries”.[5]
[5]PCB 39
Medico-legal
Dr Slesenger
48 As I said earlier, Joseph Slesenger is an occupational physician. He examined Mr Chapman twice, on 21 December 2015 and 10 May 2016, and visited his workplace on 25 May 2016. In all, he provided five reports.
49 Given the timing of his examinations, Dr Slesenger did not see any reports of scans or the like. By way of diagnosis, he was vague, saying Mr Chapman had suffered a soft tissue injury to the lumbar spine, without evidence of a stress fracture. He thought he had capacity for modified work with physical restrictions. He expected a resolution of symptoms over the next three months, quicker than a normal six months, for he detected a functional element. This resolution meant he could return to his pre-injury duties. He recommended a transition to a self-managed exercise programme.
50 For his supplementary report, dated 25 May 2016, Dr Slesenger viewed the clinical records of Dr Alexander and his clinic. Having done so, Dr Slesenger now believed Mr Chapman had a longstanding back injury pre-dating the October 2015 incident, and his current symptoms were due to pre-injury impairment and not the incident. The latter caused a short-lived exacerbation of his symptoms, now finished.[6] He believed Mr Chapman could return to his pre-injury duties and hours.
[6]DCB 27
51 On 25 May 2016, Dr Slesenger visited Mr Chapman’s workplace. At this stage, Mr Chapman was working four hours each day, three days each week. After his inspection, Dr Slesenger recommended Mr Chapman should work four days each week but for three hours each day with a five-minute break each hour. He should not push, pull, carry or lift over five kilograms. There should not be repetitive bending or twisting. He recommended Mr Chapman should continue working in the finishing and despatch area with an emphasis on his role on educating and training, quality assurance and OH&S management.
Associate Professor Buzzard
52 Associate Professor Anthony Buzzard is a surgeon. He examined Mr Chapman on 1 March 2017 at the request of an authorised agent.[7]
[7]DCB 34-42
53 Mr Chapman told Associate Professor Buzzard that he never had back pain before October 2015, which the doctor queried in his report. Mr Chapman’s statement must be seen in light of his view of a misdiagnosis. Associate Professor Buzzard dismisses Mr Chapman’s belief in a fracture. He says the October 2015 incident caused an aggravation of pre-existing pathological degenerative disease and spondylolisthesis. However, his symptoms now relate to the underlying disease process and not the incident.
Dr Aliashkevich
54 Dr Ales Aliashkevich is a neurosurgeon. He examined Mr Chapman at his solicitor’s request on about 21 February 2018.[8] He was aware of the hip replacement and was told (and accepted):
“Since his hip operation, he didn’t have any problems with his back, hip or leg and was able to work without taking any medications or requiring any sick leave.”[9]
[8]DCB 46-50
[9]PCB 46
55 Dr Aliashkevich diagnosed a chronic low back condition which was due to an exacerbation of his pre-existing congenital L5 Pars defect and degenerative changes in the lumbosacral spine. As he put it:
“… the employment with Bomi Furniture was a materially contributing factor to a significant exacerbation of this pre-existing spinal disease.”[10]
[10]PCB 49
56 In speaking of the employment, he relied upon the incident of 8 October 2015 and the “repetitive and physical character of work duties”.
57 Dr Aliashkevich said Mr Chapman was incapacitated for his pre-injury work and fit for part-time modified light duties.
58 His prognosis is guarded, with suggestions of possible investigations and treatments, culminating in:
“His history of work-related injury, litigation and overweight are stronger predictors of unfavourable outcome. He is unlikely to achieve full functional recovery in the foreseeable future.”[11]
[11]PCB 50
Dr Yong
59 Dr Dominic Yong is an occupational physician. On 28 February 2019, he examined Mr Chapman at the request of the defendant’s solicitors.[12] Those solicitors gave him many documents concerning Mr Chapman, including reports of scans and images to various parts of his body. Despite this profusion, there were no reports from Mr Chapman’s physiotherapist. Dr Yong took a full history, noting:
“Mr Chapman stated he has had no previous back condition. He did report that he had a hip condition which was misdiagnosed as a back condition, but it was a right hip condition. … .”[13]
[12]DCB 43-55
[13]DCB 48
60 When Dr Yong examined him, he had not started his employment with Marymede College.
61 Dr Yong discussed Mr Chapman’s assertion of a lack of genuine back symptoms before the October 2015 incident based on the results of two CT scans and an MRI scan and aspects of Dr Alexander’s clinical notes.[14] Ultimately, he says there “appears to be no evidence of a significant pre-existing back condition” which I interpret to mean significant pain and disability due to the condition of his back.
[14]DCB 53-54
62 Dr Yong considered Mr Chapman’s employment a “materially contributing factor” to his back condition, its incapacity and impairment.
63 Anticipating an improvement through an “activity-based recovery program”, Dr Yong thought Mr Chapman’s current level of impairment was unlikely to continue into the foreseeable future.
64 One could forgive Dr Yong for recommending such a programme. He was given copies of Dr Alexander’s reports, including a report dated 11 August 2018, but these make passing reference to physiotherapy. What he recorded as the nature of the physiotherapist’s treatment, unintentionally, does not do justice to the length and breadth of Mr di Vincenzo’s efforts.[15] I do not accept Dr Yong’s assessment of the unlikelihood of his current level of impairment continuing into the future.
[15]PCB 46
65 As to the continuing effect of the aggravation through the October 2015 incident, Dr Yong thought it likely Mr Chapman would be in an improved position if he had not had the reported incident. He did not elaborate. I take him to say Mr Chapman is worse off now than would have been the case if the incident had not occurred.
66 Dr Yong excluded any functional element.
Mr Carey
67 Mr Roy Carey is an orthopaedic surgeon. He examined Mr Chapman on 11 July 2019 at the request of Mr Chapman’s solicitors.[16]
[16]PCB 51-58
68 He obtained from Mr Chapman a clear statement that there was no central or posterior lumbosacral pain before 8 October 2015 based on the assertion of misdiagnosis. Apparently, after reading a report from Associate Professor Love, Mr Carey accepted there was a misdiagnosis and the right hip syndrome being “cured” before the low back problem started.
69 Mr Carey noted monthly physiotherapy and a lack of imaging since the October 2015 incident.
70 Mr Carey diagnosed an aggravation of pre-existing lumbar spondylosis due to the incident on 8 October 2015, which is the cause of Mr Chapman’s ongoing lower back symptoms. Mr Chapman could not return to his pre-injury duties.
71 As to prognosis, Mr Carey said:
“Given the current perfunctory management program, his prognosis is for continued discomfort and disability into the foreseeable future.”[17]
[17]PCB 57
72 Mr Carey was against surgery but thought investigations of the likely source of his pain may lead to interventional pain therapies. Also, he thought alteration of medicines and an appropriate active exercise programme may help. This programme would include hydrotherapy and progressing to ground-based exercise.
73 Although Mr Carey was given two reports of Mr di Vincenzo, they were reports from 2016 and 2017. Surprisingly, he was not given Mr di Vincenzo’s last report. Whether, if given, he would have a different prognosis, I cannot say.
Discussion
Previous back complaints
74 As I said at the start, this proceeding has an unusual aspect. Until 2012, Mr Chapman’s symptoms were treated as though they came from his lower back. After the hip replacement operation, the almost complete disappearance of those symptoms pointed to a misdiagnosis over several years. As a prudent litigant, the defendant has examined the history of treatment before the operation, which points to a back problem.
75 For years, Dr Alexander treated his symptoms as stemming from a back injury. In referring Mr Chapman to three specialists, Dr David de la Harpe, Mr Damian Tange and Mr Akram Marcus in 2011 and 2012, he advised each of severe osteoarthritis in the spine.[18] In his report dated 5 September 2016, Dr Alexander makes only passing reference to the hip replacement and none to the aftermath. Despite noting an attendance in March 2015 where Mr Chapman complained of back pain with tenderness over the thoracic spine, Dr Alexander maintains the current state of Mr Chapman’s back condition was caused by the incident in October 2015 aggravating his lumbar spine degenerative condition.
[18]Letters dated 29 August 2011, 26 September 2012 and 26 September 2012 respectively. All contained in exhibit 2.
76 I accept the proposition there was a misdiagnosis. First, despite the poor state of his lower back as evidenced by various investigations, the treatment of the back before the replacement was largely ineffectual. Second, the hip replacement gave considerable relief to Mr Chapman so that he became almost symptom free regarding the pain in his right lower back and right leg. Third, Mr Carey and Mr Aliashkevich implicitly accept the position of a misdiagnosis. Fourth, neither Dr Slesenger nor Associate Professor Buzzard was aware of the significance of the hip replacement. In my opinion, neither enjoyed a “fair climate” of assumed fact to express opinions assigning the significance of the October 2015 incident to a temporary aggravation or exacerbation of the underlying degenerative condition.[19] I would reject their opinions in that regard.
[19]Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509
77 I am satisfied Mr Chapman’s current pain and impairments stem almost entirely from the effects of the 2015 incident.
Extent of the back issue now
78 Since October 2015, Mr Chapman has had a painful lower back, suffering every day. He is now sixty. One expects he has a significant time to live. He takes medicine for pain relief, which is not prescribed.
79 The injury has not prevented Mr Chapman finding full-time work. The state of his lower back prevents him returning to French polishing professionally. He trained as a French polisher and spent many years in the trade. It was his chosen trade. He was an expert and loved the work. He intended to work as a French polisher for as long as he could even if this took him past the normal retirement age. For him, his inability to work as a French polisher is a profound loss. His ineffectual efforts to dabble in French polishing privately simply emphasises his loss to him:
“… I tried to do a small coffee table with my son recently and it just took too long. It was not as enjoyable as I had hoped.”[20]
[20]Mr Chapman’s Supplementary affidavit sworn 7 October 2019 at PCB 84, paragraph [1]
80 The evidence of the profit and loss accounts of his business support his contention of professional inactivity. The income in 2015-2016 is explained by the period in that financial year before the accident when he did work and the lack of income in the next financial year is emphatic.
81 The existence of a vehicle with a registration number starting with CFP and a van with the sign on its side – Chapman’s French polishing – does not point to paid activity in French polishing in light of the profit and loss statements.
82 Mr Chapman is restricted in sitting, standing, walking and driving: about 30 minutes; about 30 minutes; 15 to 20 minutes; and about 30 minutes respectively. Beyond those times, his back pain increases. He copes at Marymede College because of the light work and his ability to move about, regularly changing his posture.
83 At home, Mr Chapman occasionally cannot wipe his bottom. This is a startling revelation. That his lower back pain prevents this basic task indicates the occasional severity of his back pain, as does, his occasional struggle putting on his shoes and socks.
84 His occasional visit to his general practitioner is unimportant. No one suggests surgery. He visits his physiotherapist monthly. He takes non-prescribed pain-relieving medicine and copes.
85 Mr Chapman has been observed and filmed. Two DVDs were played in the courtroom. The first covered five days in February 2019 and the second, five days in June 2019. I have viewed them again in my chambers. What they depict does not assist me one way or the other. I could not conclude they display a high level of function or someone without serious back injury. Nor can I conclude it shows Mr Chapman walking “funny” as he believes it does. Apart from describing his style as plodding, I could not conclude his injury has or has not affected his walking.
86 Mr di Vincenzo has treated Mr Chapman since early 2016. Reading his reports, there is a consistency between the treatment in 2017 and now. Despite this longstanding treatment, he still suffers from limitations now. As far as I can see, the suggested activity regimes of Dr Yong and Mr Carey are already subsumed into the treatments of Mr di Vincenzo. Although there have been improvements, the prognosis is unclear with a lifelong commitment needed.
Credit
87 A challenge was made to Mr Chapman’s credit. I consider he is a creditable witness.
88 Before it burnt down, Mr Chapman went to his wife’s factory after work and, on Fridays, he drank with her employees. I found it credible he went to his wife’s factory for the company of others, to avoid being at home and drinking too much and did not work while there.
89 Mr Chapman was sacked by Silver Lynx Furniture for gross misconduct. He did say in his first affidavit he was sacked without mentioning “gross misconduct”. He linked the sacking to the requirement of providing a report saying he was fit to resume normal duties. He did tell Dr Yong he was dismissed for gross misconduct but in the context of his employer wanting a report that he could return on normal duties before it would allow him to return. Judging from his evidence and the way he gave it, Mr Chapman considers his sacking as unreasonable: he told someone handling his claim of the job with Holmesglen TAFE and was approved; and obtaining a report of such fitness was impossible.
90 At first blush, there was a lack candour in failing to mention his sacking in any of his affidavits. But, in the context of the affidavits, I would not expect a full disclosure because it would entail a digression into merits of the sacking. The omission does not affect my view of his credit.
91 Mr Chapman told doctors he never had back troubles before October 2015. This was based on his belief that what was attributed to the right lower back and right leg was, in fact, due to the right hip. His belief was correct. The five epidural injections up to June 2012, two CT scans, an MRI scan and taking Naprosyn are all explained by the misdiagnosis.
92 Finally, I thought owning up to his toileting problem was something one would not make up or even exaggerate. It is so personal. One would not raise it unless true.
Conclusion
93 Mr Chapman suffered an injury arising out of or in the course of his employment with Silver Lynx Furniture. The injury is the aggravation of his pre-existing lumbar spondylosis. The effect of the aggravation has not ceased. In fact, it is permanent. The consequences of this injury are permanent.
94 The test for “serious injury” is legislatively established.[21] In this proceeding, my attention was drawn to a paragraph in Dwyer v Calco Timbers Pty Ltd (No 2)[22] and Haden Engineering Pty Ltd v McKinnon.[23] Although not specifically cited, the defendant’s counsel implicitly relied on Petkovski v Galletti.[24]
[21]See s134AB(37) for the definition of “serious injury” and s134AB(38)(b),(c), (h) and (i) of the Act
[22][2008] VSCA 260 at paragraph [27] per Ashley JA
[23](2010) 31 VR 1
[24] [1994] 1 VR 436 at 443-4
95 It cannot be said Mr Chapman was entirely free of back pain leading up to the 2015 accident. However, he was very largely so. Consequently, the very large majority of his present condition is due to the aggravation of the pre-existing condition caused by the accident.
96 As to whether Mr Chapman has a “serious injury”, my conclusion should already be clear given what I have already said. Mr Chapman is sixty and can expect many more years. He suffers daily pain in his lower back. This has been a constant since 2015 and will continue indefinitely. He undergoes monthly physiotherapy which is beneficial. Although working full time, it is very light work physically with an ability to move around and change his posture. He works within physical his limitations, which are significant. He cannot work in life-long trade, in which he was an expert and loved. Even dabbling in French polishing serves to show how much he has lost. Despite monthly physiotherapy, Mr Chapman’s need for it will continue indefinitely.
97 Domestically, his activities around the home are limited. Mr Chapman has retained his friendships. He was not sporting before 2015 and is not now. He has lost nothing there.
98 I will grant leave for Mr Chapman to start a proceeding seeking the recovery of damages for pain and suffering in respect of the injury sustained on 6 October 2015.
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