Christensen, Robert Lee v Victorian WorkCover Authority
[2009] VCC 1768
•27 November 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT BENDIGO
CIVIL DIVISION
DAMAGES/COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-01264
| ROBERT LEE CHRISTENSEN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | First Defendant |
| and | |
| CASTLE BACON PTY LTD | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Bendigo |
| DATE OF HEARING: | 19 November 2009 |
| DATE OF JUDGMENT: | 27 November 2009 |
| CASE MAY BE CITED AS: | Christensen, Robert Lee v Victorian WorkCover Authority & Castle Bacon Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1768 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – plaintiff suffered a compensable injury to his lower back – whether medical treatment for the compensable injury produced an abscess in his lower back requiring spinal surgery – causation – whether the plaintiff had suffered an impairment of the function of his lower back producing consequences which were very considerable – whether the plaintiff's use of illicit drugs and abuse of prescription drugs produced consequences similar or the same to those he alleged were caused by the impairment of function of his lower back: section 134AB(38)(c).
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards SC with | Arnold Dallas McPherson |
| Mr M Schulze | ||
| For the Defendants | Ms S Manova with | Hall & Wilcox |
| Ms H Donmez | ||
| HIS HONOUR: |
1 Before the Court is an application brought by Originating Motion filed on 6 October 2008 by which the plaintiff applies for leave, pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of the course of his employment with the first defendant.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering and loss of earning capacity.
3 Mr J Richards SC appeared with Mr M Schulze of Counsel for the plaintiff, and Ms S Manova appeared with Ms H Donmez of Counsel for the defendants.
4 The body function which the plaintiff says has been lost or impaired is the lower back.
5 The following evidence was adduced during the hearing:
• The plaintiff gave evidence and was cross-examined; •
The plaintiff tendered the Plaintiff’s Court Book (“PCB”), pages 16-22; 25- 100; 102-106; 110-119, and from the Defendants’ Court Book (“DCB”) pages 202-214; 219; 205; 250 and 286: Exhibit A;
•
The defendants tendered the Defendants’ Court Book, pages 5-31a; 48- 80; 133-150; 152-163; 177-179; 196-198; 239-243; 253-255; 357-366 and 368-373: Exhibit 1;
• The defendant tendered the following documents:
ƒ an extract of the records of the Strathdale Pharmacy: Exhibit 2 ƒ an extract of the records of the Bendigo Day and Night Pharmacy:
Exhibit 3ƒ an extract of the records of the Health Information Pharmacy:
Exhibit 4.
The Statutory Scheme
6 The application is brought under the definition of “serious injury” contained in subsection (37)(a) of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
7 The relevant considerations which apply to such an application are as follows:
(a)
The plaintiff must prove that he has suffered a compensable injury; that is, an injury which he suffered arising out of the course of his of employment on or after 20 October 1999.[1]
(b)
The injury and the impairment must be permanent, that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
(c)
The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by subsection (19)(a), subsection (19)(b) and subsection (38)(e) impose a specific burden on the plaintiff in relation to a claim for loss of earning capacity.
(d)
Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e)
Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(f)
Subsection (38)(e) provides that in a claim for loss of earning capacity that such loss must be to the extent of 40 per cent or more both at the date of hearing and permanently.
(g)
Subsection (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined.
(h)
Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application.
(i)
Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event;[3] an approach which I intend to follow in the appropriate case.
(j)
In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in subsection (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
(k)
In an application where it is alleged that the plaintiff had a pre-existing condition which arose prior to 20 October 1999, I must, in conformity with Barwon Spinners, identify the injury and impairment arising after 20 October 1999, and I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after that injury: see Petkovski v Galletti.[4]
[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[2] Barwon Spinners, at paragraph 33
[3] Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
[4] (1994) 1 VR 436
8 I am required by section 134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action, and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s Background
9 The plaintiff was born on18 February 1964. He is now forty five years of age. He is the father of a child who is ten years of age.
10 The plaintiff had a turbulent family life. It resulted in him leaving home when he was thirteen or fourteen years of age. He obtained an apprenticeship as a chef. He joined the army and completed his apprenticeship.
11 Unfortunately for the plaintiff, he engaged in serious illicit drug use. His drug of choice was heroin. He became addicted to it. He also became addicted to the use of prescription medication. He used heroin intravenously. It led to him contracting hepatitis C.
12 His heroin addiction saw him not only using, but also trafficking in heroin. He was arrested and charged with trafficking in 1999. He was sentenced to a term of imprisonment. He served a sentence of six months’ imprisonment. He also has a number of convictions related to drink-driving.
13 While the plaintiff was incarcerated in prison he made an attempt to wean himself off his heroin addiction. The program involved the use of Methadone as a substitute for heroin.
14 The plaintiff commenced employment with the second defendant in about May 2001. He said that he did not use heroin between his release from prison and the date when he commenced employment with the second defendant. His next use of heroin was on an occasion when he relapsed into using heroin a couple of times when he was having domestic problems.[5]
[5] Transcript 19
15 The plaintiff suffered a number of lower back problems with a cleaning firm known as Coopers Cleaning, and with the second defendant. No evidence was adduced by plaintiff or the second defendant to suggest that the prior lower back problems were of any significance.[6]
[6] Transcript 13-14
16 The plaintiff also developed a bilateral carpal tunnel problem in the course of his employment with the second defendant. The evidence regarding the extent to which the bilateral carpal tunnel problem affected the plaintiff was rather scant. However, what did emerge was that he was offered steroid injections as part of the treatment for that problem. It is not clear whether the plaintiff had the steroid injections or not.
17 The plaintiff was referred to Mr Mitchell, surgeon, for treatment of the carpal tunnel problem. Mr Mitchell operated on the plaintiff’s wrists. The plaintiff said that he made a complete recovery from the bilateral carpal tunnel syndrome.[7]
[7] Transcript 15 and 62
18 Before the plaintiff suffered the injury to his lower back on 27 June 2002, he was using a number of types of prescription medication. He was prescribed Oxycodone, Panadeine Forte and Oxycontin.
19 The plaintiff said that he was using that type prescription medication to treat the pain he was experiencing from the bilateral carpal tunnel syndrome. He agreed that before he suffered injury to his lower back he was using up to 160 milligrams of either of Oxycodone or Oxycontin each day.[8] The plaintiff said he believed that about four months before he suffered injury to his lower back that he was using 240 milligrams of either Oxycodone or Oxycontin each day.[9]
[8] Transcript 14-15
[9] Transcript 17-18
20 The plaintiff said that his medication regime changed after the surgery for the bilateral carpal tunnel syndrome. He was prescribed Methadone to cut down his use of Oxycontin.[10]
[10] Transcript 16 and 18
The Incident and the Plaintiff's Medical Treatment
21 On 27 June 2005, the plaintiff was dragging a loaded trolley jack backwards up a slope. In the course of doing so, his feet slipped from under him and he landed heavily on his back on a concrete floor.
22 The plaintiff attended the Bendigo Hospital. He was examined and then discharged with a prescription for Oxycontin.[11]
[11] PCB 41
23 The plaintiff saw Dr Erhardt, general practitioner. Dr Erhardt examined the plaintiff, finding that the movements of his lower back were extremely restricted due to muscle spasm and pain at the end range of all movements. He also noted that the plaintiff paced incessantly and walked with a limp.
24 Dr Erhardt referred the plaintiff to physiotherapy which did not provide the plaintiff any benefit. He referred the plaintiff to have a plain x-ray which was taken on 3 October 2002.[12] Dr Erhardt did not pass any comment on the appearances on the plain x-ray.
[12] PCB 82
25 It would appear that Dr Erhardt was involved in the plaintiff's attempts to return to work. The plaintiff made six unsuccessful attempts to return to work on modified duties, performing lighter work between 26 June 2002 and 19 November 2002. Dr Erhardt noted that the plaintiff was totally unfit for work from 19 November 2002. He also noted that the plaintiff’s attempts to return to work aggravated his lower back pain.
26 Dr Erhardt diagnosed the plaintiff as suffering a lumbar strain with possible spinal disc damage. He was of the opinion that the plaintiff had suffered a compensable injury. He was also of the opinion that the plaintiff had a residual capacity to perform some of his pre-injury duties.[13]
[13] PCB 31-32
27 Dr Erhardt referred the plaintiff to Mr Perera, orthopaedic surgeon, who saw the plaintiff on 3 December 2002. Mr Perera was unable to offer a diagnosis. It would appear that he accepted that the plaintiff had suffered an injury, but without the MRI scan which he had requested he was unable to say anything more.[14]
[14] DCB 177-179
28 Dr Erhardt referred the plaintiff to Dr Murphy, consultant physician in rehabilitation medicine. He first saw the plaintiff on 26 July 2005. Dr Murphy referred the plaintiff to have a CT scan. The CT scan showed that the plaintiff had a bilateral pars defect at L5. There was the appearance of a prominent annulus abutting the exiting right L5 nerve root.[15]
[15] PCB 83
29 It would appear that it was Dr Murphy who made the decision to rationalise the plaintiff's use of medication by taking him off Oxycontin and prescribing Methadone. He also cautioned the plaintiff about to his use of prescription medication. He advised the plaintiff that he should obtain prescriptions from one general practitioner and have the same filled by one pharmacist.
30 Dr Murphy reviewed the plaintiff on 27 September 2005. The plaintiff told him that he had suffered a relapse of pain when he stepped into a meat trap. It would appear that as a result of a flare-up of pain in his lower back he was prescribed Oxycontin, 100 milligrams twice per day, which was to be reduced to 80 milligrams (I assume twice per day) when the flare-up had settled down.
31 Dr Murphy reviewed the plaintiff again in March 2006. He observed that the plaintiff's pain had been controlled reasonably well using Oxycontin. He referred the plaintiff to have an MRI scan which was taken on 26 April 2006.[16] It showed the pars defect and other abnormalities which Dr Murphy did not consider to be of clinical significance.
[16] PCB 84
32 The plaintiff underwent surgery on 25 January 2007 at the Royal Melbourne Hospital to treat a lumbar epidural abscess which was causing spinal cord compression. He was subsequently re-examined by Dr Murphy following the occurrence of that surgery.
33 Dr Murphy does not appear to have expressed an opinion regarding the nature of the injury suffered to the plaintiff’s lower back before the surgery occurred. However, it is implicit in his treatment of the plaintiff that he accepted that the plaintiff had suffered an injury to his lower back which required the prescription of strong painkilling medication, namely Methadone and Oxycontin.
The Surgery
34 Ms Manova informed me that the defendants denied that the necessity for the surgery was causally connected to the compensable injury.
35 The plaintiff attended the Bendigo Hospital on a number of occasions prior to being transferred from the Bendigo Hospital to the Royal Melbourne Hospital.
36 On 21 January 2007, the plaintiff presented at the Bendigo Hospital. The Emergency Department attendance notes record:
“Emergency Department attendance claiming that there was increased lower back pain from an injury sustained two days ago after stepping off gutter. He was noted to be unco-operative on examination but was moving all limbs without difficulty when not asked. He had no perianal altered sensation. Simple analgesia was given and initial investigations ruled out any fractures of the thoracic lumbar spine. He was discharged for further follow up with his General Practitioner."
37 The clinical notes of the Bendigo Hospital show that on 21 January 2007 at 1100 hours, a medical practitioner injected Marcain and Adrenalin directly into the plaintiff’s lower back using a 25 gauge needle.[17] The plaintiff told the attending medical staff that he felt somewhat better after the injection.
[17] DCB 205. The notes were completed on 27 January 2007, but clearly refer to what occurred on 21 January 2007 consistent with the running clinical notes - at DCB 209-210
38 The clinical notes also make it clear that the plaintiff had blood withdrawn for the purpose of biochemical testing.[18]
[18] DCB 206, 209 and 211-212
39 The plaintiff attended the Bendigo Hospital again on 22 January 2007 complaining of continuing back pain. He was discharged after some muscle- relaxant therapy was administered.[19]
[19] PCB 41
40 The plaintiff attended the Bendigo Hospital again on 25 January 2007. The Emergency Department attendance notes record:
"Emergency Department attendance. Patient was again brought in by ambulance with continued back pain. Analgesia and Diazepam was administered. An enforced neurological examination revealed decreased power on the right-hand side. Patient was transferred to Royal Melbourne Hospital for further management."[20]
[20] PCB 41
41 The clinical notes dated 27 January 2007 also reveal that the plaintiff's pathology was checked, which was essentially normal.[21] It is probable that the clinical notes referred to the plaintiff's attendance at the Bendigo Hospital on 21 January 2007.
[21] DCB 206
42 The medical practitioners who attended upon the plaintiff when he was admitted to the Royal Melbourne Hospital recorded the following history:
"He reported that his long-standing lower back pain had become worse on 21 January 2007, and received a spinal injection of local anaesthetic (Bupivacaine) in Bendigo. He subsequently developed rapid-onset lower abdominal discomfort and altered sensation in the lower limbs, and presented to Bendigo Base Hospital with severe lower limb weakness and urinary retention with overflow incontinence. Based on the examination and spinal MRI findings, he was transferred to the RMH Neurosurgery Unit, arriving on 25 January 2007 at 20:56 hours, with a diagnosis of thoracolumbar epidural access and spinal cord compression."
43 The neurosurgical registrar formed the following opinion as to the cause of the abscess:
"As the spinal MRI was performed in Bendigo, it has not been reported here, but the neurosurgical registrar agreed with the interpretation of an epidural collection from T5 to L4 vertebral, with marked distortion of the spinal cord. It was considered likely that this was a complication of his spinal injection four days earlier, although previous history of intravenous drug use was also considered the possible cause."[22]
[22] PCB 72
Causation
44 The medical opinions regarding the cause of the abscess demonstrate that penetration of the plaintiff’s body and the introduction of infected material into his body was the cause of the abscess.
45 The medical opinions identified the likely means by which that material was introduced into the plaintiff’s body which led to the development of the abscess. Either it was caused by the injection given to the plaintiff at the Bendigo Hospital on 21 January 2007 or from his intravenous drug use.
46 Mr Kierce, orthopaedic surgeon, examined the plaintiff on 2 October 2008. He obtained a history that the plaintiff had an injection into his lower back at the Bendigo Hospital, following which he experienced paralysis and incontinence. He understood that two abscesses were found in the plaintiff’s spine which were surgically drained.
47 Mr Kierce considered the question of causation. He said it sounded as though the epidural abscess was related to the epidural injection administered at the Bendigo Hospital.[23]
[23] PCB 96
48 Mr King, orthopaedic surgeon, obtained a similar history to Mr Kierce. Mr King presumed that the extensive epidural abscess was a complication of the epidural injection administered at the Bendigo Hospital.[24] He stated his opinion more emphatically in answer to a specific question, saying that he believed there was a direct link between the development of the abscess and the need for treatment for the plaintiff’s lower back pain arising from the incident.[25]
[24] PCB 77
[25] PCB 81
49 Mr Dooley, orthopaedic surgeon, examined the plaintiff for the defendants on 18 February 2009. Ms Manova informed me that Mr Dooley was provided with a copy of the records of the Bendigo Hospital which recorded the medication provided to the plaintiff, the epidural injection administered on 21 January 2007, and the results of biochemical tests undertaken on the plaintiff.[26]
[26] The relevant page of the clinical records is at DCB 211
50 Mr Dooley was not convinced that the epidural injection administered on 21 January 2007 at the Bendigo Hospital was responsible for the development of the abscess. He said the following in that connection:
"When Mr Christensen presented in the early hours of January 21st he had tachycardia, a temperature of 38.4, and ESR of 47 and a CRP of one hundred and seventy five. I believe that this indicates that there was an infective process already present and established and that most likely Mr Christensen was presenting with increased back pain related to the development of the epidural abscess itself. Although such an infection is unusual, it would be accepted, given his background as outlined above, that he would have a predisposition to the sort of infection. Subsequently the infecting organism was diagnosed as a staphylococcus organism. If asked, it is possible that the local anaesthetic injections were associated with the inoculation of an organism that subsequently caused infection, then one would have to answer this as a possibility. Based on all of the information available to me however, on the balance of probabilities, it is most likely that Mr Christensen was presenting with a developing epidural abscess on January 21 and this was the cause of his presentation with increased back pain."[27]
[27] DCB 40
51 Ms Manova submitted that I should accept the opinion of Mr Dooley, primarily because none of the other medical practitioners who have provided opinions to the contrary had the relevant pages of the clinical records which Mr Dooley was provided with.
52 I am not persuaded that the resolution of the question of the cause of the abscess can be answered so simply.
53 Mr Dooley referred to a number of factors which led him to form a belief that there was an infective process underway by a particular time. However, he did not explain what each of those factors were and how and on what basis they were indicators which led him to that conclusion.
54 An analysis of that kind is of critical importance because it may be that the factors he referred to marginally support the conclusion for which he contends, or do so very obviously. In determining whether I accept his opinion or not, it is necessary for me to understand the basis of that opinion rather than simply a statement that there are factors upon which that opinion is based without the reasoning behind it.
55 There are a number of other factors to be weighed into consideration in determining whether Mr Dooley's opinion is soundly based.
56 Firstly, the clinical notes written on 27 January 2007 make it abundantly clear that the author of those clinical notes was satisfied that the plaintiff's full blood examination was essentially normal. Furthermore, the author of those clinical notes spoke to a medical consultant before a decision was made to discharge the plaintiff on 21 January 2007.
57 Secondly, the neurosurgical registrar at the Royal Melbourne Hospital, Mr Kierce, Mr King and Mr Dooley were all aware that the epidural injection was administered on 21 January 2007 and that the plaintiff subsequently presented four days later on 25 January 2007 with paralysis and urinary incontinence. It was that very day that he was transferred to the Royal Melbourne Hospital, at which time a diagnosis was made that the cause of the plaintiff’s symptoms was an epidural abscess.
58 If the timeframe was insufficient for the development of the abscess, then I would have expected each of those medical practitioners to have said so. Therefore, if the epidural injection administered at the Bendigo Hospital was responsible for the introduction of infective material into the plaintiff’s spine, then there is nothing to suggest that a four-day period would have been insufficient for the epidural abscess to have developed.
59 Ms Manova’s submission that I should accept the opinion of Mr Dooley runs into a third issue, and that is, that the referral of the plaintiff to the Royal Melbourne Hospital must have been accompanied by records emanating from the Bendigo Hospital which would have assisted the neurosurgical registrar to make a diagnosis of the plaintiff's medical condition.
60 I am fortified in reaching that conclusion because the neurosurgical registrar made reference to the examination at the Bendigo Hospital and an MRI scan taken at the Bendigo Hospital. I infer that the reference to the examination must have been a reference to what was contained in the clinical records of the Bendigo Hospital.
61 What I am not able to conclude is the extent of the clinical records which accompanied the plaintiff when he was referred from the Bendigo Hospital to the Royal Melbourne Hospital.
62 The only conclusion that is open from the report of the Royal Melbourne Hospital is that the neurosurgical registrar considered himself to be in a position to make an assessment of the clinical records which accompanied the plaintiff from the Bendigo Hospital, and from his own assessment of the plaintiff's clinical state, to reach a conclusion that it was likely that the epidural abscess was a complication of the epidural injection administered four days earlier at the Bendigo Hospital.
63 Whilst it is true that neither Mr Kierce nor Mr King had the same clinical records which were provided to Mr Dooley, their opinions are nonetheless important because they are both surgeons of the highest rank who would not have offered an opinion on causation had their experience not pointed to a connection between the administration of the epidural injection and the development of the abscess.
64 To accept the opinion of Mr Dooley must mean that the medical practitioners at the Bendigo Hospital wrongly considered the results of the full blood examination to be normal. Similarly, the neurosurgical registrar at the Royal Melbourne Hospital did the same.
65 Interestingly, however, Mr Dooley was not asked to consider whether the epidural injection was likely to be implicated in the development of the epidural abscess. He dealt with that question by raising it himself. He did not exclude it being from being implicated, but considered it to be a possibility.
66 I accept the evidence of the Bendigo Hospital, that the full blood examination was normal. I accept that the medical practitioner who composed the clinical notes on 27 January 2007 referred the same to a consultant, following which a conclusion was reached that there was nothing in the biochemical test results, or for that matter any other test results, which were at all worrying.
67 I accept the evidence of the neurosurgical registrar of the Royal Melbourne Hospital, that on the basis of the clinical material which he would have had from the Bendigo Hospital, and his own clinical assessment of the plaintiff’s medical condition, that he was in a position to analyse the facts and conclude that it was more likely that that the administration of the epidural injection at the Bendigo Hospital on 21 January 2007 was to be implicated in the development of the abscess.
68 I consider that the position in which the neurosurgical registrar found himself, put him in a better position than Mr Dooley to consider the facts and reach a conclusion that, firstly, the biochemical tests were normal, and that the administration of the epidural injection was contemporaneous with the development of the epidural abscess, and therefore, more likely to be causally connected to its development.
69 Therefore, I do not accept the opinion of Mr Dooley, however, to some degree it is confirmatory of the conclusion I have reached because Mr Dooley does not entirely dismiss the causal connection which I consider to be more likely. He considered a causal connection to be possible.
Serious Injury
70 The conclusion I have reached is that the plaintiff suffered an injury to his lower back which impairs the function of his lower back. The surgery is causally connected to treatment considered necessary by the medical practitioners at the Bendigo Hospital for the treatment of the painful condition with which the plaintiff presented on 21 January 2007. The necessity for the surgery arose as a direct consequence of the development of the epidural abscess which I find was likely to have developed as a result of the administering of the epidural injection at the Bendigo Hospital on 21 January 2007.
71 The preponderance of the medical evidence supports the conclusion that the plaintiff has suffered very serious consequences of the impairment of the function of his lower back.
72 Dr Murphy examined the plaintiff again on 7 July 2009 at the request of the plaintiff's solicitors. He was of the opinion that the plaintiff continued to display symptoms and signs of the aggravation of spondylisthesis and degenerative disease in his lower back, and also incomplete paraplegia with development of some weakness, spasticity and impairment of sensation in his lower limbs.
73 Dr Erhardt last examined the plaintiff on 23 April 2007. It was not long after the plaintiff had undergone surgery. However, he was of the opinion that the plaintiff's prospects of returning to employment were minimal.[28]
[28] PCB 33
74 At the time when Dr Murphy last examined the plaintiff he was of the opinion that he had most likely reached his maximum level of functioning. On examination, he found significant neurological deficits in the plaintiff’s lower limbs. He considered his prognosis fair. He considered that the plaintiff's prospects of returning to work were poor.[29]
[29] PCB 29-30
75 Mr Brownbill, neurosurgeon, examined the plaintiff on 21 November 2007. Mr Brownbill was not asked to make a diagnosis of the plaintiff's injury. He was asked to offer an opinion on the plaintiff’s capacity for employment only.[30] On examination, he found that the plaintiff was suffering from partial paraplegia. He was of the opinion that realistically the plaintiff was not capable of returning to any work for which he was outfitted, and presumably he meant on the basis of his education, training and experience.[31]
[30] PCB 86
[31] PCB 89-90
76 Mr Kierce was asked to undertake an AMA impairment assessment. His opinion is of no use in determining what consequences the plaintiff has suffered arising from the impairment of function of his lower back, except that on examination he found significant neurological deficits, particularly in the plaintiff’s lower limbs.[32]
[32] PCB 98
77 Mr King examined the plaintiff and found that he was suffering from moderately severe spasticity in his right lower limb and generalised weakness in his left lower limb. He was of the opinion that the plaintiff had suffered an injury to his thoracolumbar spin and that he was permanently and totally disabled for all work.[33]
[33] PCB 78-81
78 Mr Dooley’s opinion regarding the plaintiff's capacity to work is in stark contrast to the opinions of Dr Erhardt, Dr Murphy, Mr Brownbill, Mr Kierce and Mr King. He was of the opinion that the plaintiff would be left with a mild to moderate impairment; that he would continue to note intermittent low-back pain and intermittent lower limb pain; and that he could carry out light physical work and clerical duties. Remarkably, he believed that the plaintiff was capable of running a small beef cattle farm.
79 Mr Dooley’s examination results are also in stark contrast to those of Dr Murphy, Mr Brownbill, Mr Kierce and Mr King, who found significant neurological deficits in the plaintiff’s lower limbs. The extent of the contrast is remarkable as is in contrast to his opinion regarding the plaintiff's capacity for work.
80 Mr Brownbill is an orthopaedic surgeon. I note that his examination of the plaintiff was particularly careful and extensive, as were the examinations undertaken by Mr Kierce and Mr King. They set out, in significant detail, each and every one of the findings they made on examination. Mr Dooley’s examination might well have been as extensive, however, his recording of his findings appear to be very brief, suggesting that his approach was rather less extensive.
81 I accept the opinions of Dr Murphy, Mr Brownbill, Mr Kierce and Mr King that the plaintiff is effectively incapacitated for work. I do not accept that the plaintiff has a residual capacity, as Mr Dooley suggests. Although the plaintiff was the author of the reference to cattle farming, I consider his dream of being a cattle farmer to be just that, a dream. My general knowledge of what is involved in farming suggests that it is an arduous occupation, and not one undertaken as if it was some light duty occupation.
The Cause of the Plaintiff’s Consequences
82 Miss Manova cross-examined the plaintiff regarding his use of heroin and prescription medication, both before and since the incident. I have no doubt at all that the plaintiff was a serious heroin user, and probably did relapse into the use of heroin after the incident occurred.
83 I also have no doubt that the plaintiff has been and is opioid-dependent. I accept the submissions made by Miss Manova that the plaintiff has engaged in manipulative conduct by attending at the least two medical practices to obtain prescriptions for medication to feed his opioid dependency.
84 I also have no doubt that the plaintiff swore a number of statutory declarations representing that he had lost possession of his medication for the purpose of obtaining another prescription in order to obtain as much medication as he could again to feed his opioid dependency.
85 Miss Manova submitted that the degree of the plaintiff’s opioid dependency and his manipulative conduct should leave me in serious doubt about his credit. Furthermore, she submitted that I could not be satisfied what consequences have been produced by the impairment of the function to the plaintiff’s lower back, as opposed to a behaviour which is consistent with someone who is ravaged by opioid dependency and abusive opioids.
86 I reject that submission. It is clear enough to me that the plaintiff probably has persistent pain in his lower back. It is probable that he has pain in both of his legs, and has an impaired gait consistent with the way he has been observed to ambulate by a number of examining medical practitioners.
87 The description of the examination results given by Mr Brownbill, Mr Kierce and Mr King are consistent with the plaintiff suffering partial paraplegia. It is difficult to imagine how that result could be otherwise than consistent with consequences that are at the least very considerable, and indeed, I think very, very considerable.
88 I find that the plaintiff has no capacity for employment whatsoever. I find that his degree of incapacity deserves the description “at the least very considerable”. I find that that degree of incapacity is permanent. I have reached the foregoing conclusions by comparing the plaintiff's impairment with other cases in the range of possible impairments or losses of a body function, which may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
Conclusion
89 It is unnecessary for me to separately consider the question of whether the plaintiff meets the statutory test for pain and suffering given that the plaintiff has satisfied the statutory test for loss of earning capacity.[34]
[34] Advanced Wire & Cable Pty Ltd v Abdulle (supra)
90 On the basis of the foregoing reasons, findings, and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to section 134AB(16)(b) of the Act to recover damages for pain and suffering and loss of earning capacity arising out of his employment with the second defendant.
91 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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