Chryssafi v Multiform Constructions (Vic) Pty Ltd
[2013] VCC 1969
•18 December 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-01427
| NICK CHRYSSAFI | Plaintiff |
| v | |
| MULTIFORM CONSTRUCTIONS (VIC) PTY LTD | First Defendant |
| and | |
| THE VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 and 21 June 2013 | |
DATE OF JUDGMENT: | 18 December 2013 | |
CASE MAY BE CITED AS: | Chryssafi v Multiform Constructions (Vic) Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1969 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the lumbar spine – pain and suffering and loss of earning capacity – identity of injury – aggravation of pre-existing degenerative change – disentangling
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605; Ansett Australia Ltd v Taylor [2006] VSCA 171; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Petkovski v Galletti [1994] 1 VR 436; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment: Leave granted to bring proceedings for pain and suffering and loss of earning capacity damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D J N Purcell | Robinson Gill |
| For the Defendants | Mr D Churilov | Herbert Geer Lawyers |
HIS HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the firstnamed defendant on 10 February 2010 (“the injury”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only. He brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There “serious injury” is defined relevantly as meaning “(a) permanent or loss of a body function”.
3 The body function relied upon in this application is the lumbar spine.
4 The plaintiff relied on two affidavits and gave viva voce evidence. He was cross-examined. In addition, he relied on the affidavits of Lisa Fioretti, sworn 26 April 2013, Paul Rogers, sworn 2 May 2013, Angela Chryssafi, sworn 28 May 2013, and Paul Fioretti, sworn 11 June 2013. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Outline of Section 134AB
5 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
6 The plaintiff bears an overall burden of proof upon the balance of probabilities.
7 By s134AB(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being more than “significant” or “marked” and as being “at least very considerable”.
8 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function.[1]
[1]Section 134AB(38)(b) of the Act
9 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[2] in reaching my conclusions.
[2](2005) 14 VR 622
10 The defendants concede that the plaintiff suffered a soft-tissue injury to his lumbar spine on 10 February 2010 but submits there was no structural damage, such that there has been no additional impairment or no sufficient additional impairment flowing from that incident which is serious in its own right in terms of the aggravation to the underlying condition that it produced and in terms of the consequences that are the result of that aggravation.[3]
[3]Transcript (“T”) 12, L30–T13, L8
11 In this regard, the defendants rely on the expert opinion of Dr Anthony Kam, consultant radiologist, who reported on 19 March 2012.[4] Dr Kam principally relied on a pre-existing CT scan of the lumbar spine on 26 September 2007 and then compared it with imaging taken after the injury occurred on 10 February 2010, being a CT scan of the lumbar spine dated 15 February 2010, a CT scan of the lumbar spine dated 27 May 2010, and an MRI scan of the lumbar spine dated 29 September 2010.[5] It is the defendants’ submission that Dr Kam is:
“... the only expert who has actually considered all the radiology and expresses a considered opinion within his expertise as to whether there’s been any impact or a causal connection between the injury of 10 February 2010 and the pathology that the plaintiff has.”[6]
[4]Exhibit 7
[5]Exhibit T
[6]T12, L24–29
12 Further, it is submitted that all of the medical practitioners who support the plaintiff’s case are hampered by the lack of the relevant CT scans and MRI scans.
13 The second issue identified by the defendants is the failure of the plaintiff to disclose certain aspects of his pre-existing history, which is directly relevant to the weight to be attached to the opinions of the various experts.
14 The third issue is the “presence of non-organic factors” that have been identified by Mr Hooper, and therefore there is a process of “disentangling” that is required.
15 Finally, the defendants submit that in any event, the plaintiff is able to work in light work on a full-time basis, and he is unable to prove that there is a 40 per cent loss of earning capacity on a permanent basis.
16 The plaintiff’s counsel, on the other hand, contends, despite any failure on the part of the plaintiff to disclose to relevant medical practitioners the full extent of his prior history of lumbar pain, that, when all the evidence is viewed as a whole, according to the principles laid down in Jayatilake v Toyota Motor Corporation Australia Ltd,[7] the plaintiff has discharged the onus of proof by showing that there has been a permanent aggravation of an underlying degenerative condition which has the impairment consequences, inter alia, of rendering him significantly if not totally incapacitated for employment, compared to being capable of full employment at least from 21 October 2009 until the date of injury, being 10 February 2010.
[7](2008) 20 VR 605
17 The date of 21 October 2009 is relevant in that, on 26 May 2009, the plaintiff suffered injury when, working on formwork at a height of at least 3 metres from ground level, the form work collapsed and he fell to the ground, injuring his left side and kidney. Treatment at the time included hospitalisation at The Royal Melbourne Hospital and the necessity for a coil to be inserted into his kidney.[8] Radiological investigation of the lumbar spine at the time revealed:
“Prominent Schmorl’s nodes at multiple levels. L4/5 disc degenerative change is associated with minor (3 mm) retrolisthesis. No fracture identified.”[9]
[8]Exhibit K
[9]Exhibit K, Plaintiff’s Court Book (“PCB”) 38
18 The ultimate diagnosis was:
“Traumatic haematoma of left kidney and retroperitoneum.”
19 He was discharged from The Royal Melbourne Hospital on 31 May 2009.[10]
[10]Exhibit K, PCB 39
20 When seen by physiotherapist, Mr Ty Lam, on 22 June 2009, the plaintiff reported:
“… neck pain, headaches, bilateral wrist and left knee pain.”[11]
[11]Exhibit L, PCB 41
21 Thereafter, the plaintiff returned to working full time with the first defendant, performing normal duties, on 21 October 2009.
Compensable physical injuries – the facts
22 The plaintiff was born in January 1978 and is aged thirty-five years. He is married with two children, aged three years and six months respectively. He attended school until partway through Year 9 and he is significantly challenged with reading and writing skills.[12]
[12]Exhibit C, affidavit sworn 10 November 2011, PCB 9, paragraph 4
23 After leaving school, he completed an apprenticeship as a motor mechanic and worked for approximately fifteen years in that trade.
24 He conceded he had “very minor back pain in around 2004” and sought treatment from his general practitioner. He also suffered back pain in 2006, and stated that a CT scan at that time “revealed disc protrusions at L4/5 and L5/S1”. He said he had a few days off work and then his symptoms completely resolved within a short time and he was able to return working normal duties.[13]
[13]Exhibit C, affidavit sworn 10 November 2011, PCB 9, paragraph 5
25 In approximately September 2008, the plaintiff commenced employment with the first defendant as a labourer in the construction industry. He did a variety of jobs, including construction labouring, concreting, steelwork and scaffolding. He swore that he worked long hours and it was hard work, and on some weeks he cleared up to $1,400 per week.
26 On 26 May 2009, the plaintiff fell from the first level of a building site when the formwork collapsed. He landed heavily on his left flank and suffered immediate pain in the vicinity of his left kidney and his low back. He was taken by ambulance to The Royal Melbourne Hospital and had six weeks bed rest post accident.[14] He confirmed the diagnoses and the times off work referred to above.
[14]Exhibit C, affidavit sworn 10 November 2011, PCB 9, paragraph 8
27 While working as a full-time labourer on 10 February 2010, the plaintiff injured his back whilst lifting a large wooden beam which was about 3.6 metres long and weighed approximately 20 kilograms.[15]
[15]Exhibit C, affidavit sworn 10 November 2011, PCB 9, paragraph 12
28 Following the injury, the plaintiff sought medical treatment and then returned to work from February to April 2010 but thereafter was unable to continue because of the back pain, and has been unemployed since that time.[16]
[16]Exhibit C, affidavit sworn 10 November 2011, PCB 9, paragraph 13
29 The plaintiff’s treating general practitioner, Dr Michael O’Gorman, reported that following the injury in February 2010, there was an acute onset of low-back pain with radiation to the left leg and associated neurological symptoms in that leg. Treatment was originally consisting of corticosteroid, analgesics and physiotherapy.[17]
[17]Exhibit M, PCB 44
30 By May 2011, Dr O’Gorman considered the plaintiff was totally incapacitated in terms of his pre-injury employment and such employment would not be feasible for him to perform at any point in the future. He considered at that stage, that his symptoms had plateaued and entered a chronic stage. At that time, the plaintiff was liaising with his case manager at WorkCover and their rehabilitation providers in relation to seeking alternative forms of employment. He considered that if a suitable role could be identified it was possible he could re-enter employment but it would have to be of a light nature without any heavy physical tasks and long-term restrictions are likely to include no lifting above 10 kilograms.
31 Dr O’Gorman had sought surgical opinions from neurosurgeons, Mr Paul D’Urso and Mr Graeme Brazenor, and orthopaedic surgeon, Mr David de la Harpe. The first two surgeons had offered surgical options and the third had recommended conservative management instead of surgery.[18]
[18]Exhibit M
32 In his affidavit sworn 10 November 2011, the plaintiff related that Dr O’Gorman continued to provide him with WorkCover certificates certifying him as having no current work capacity. He was prescribing Panadeine Forte and Voltaren, although the plaintiff was trying to avoid taking the medication. At times the pain is severe and a flare-up can last for a week or more with a requisite need to take Panadeine Forte.[19]
[19]PCB 13, paragraph 18
33 Further, at that stage, the plaintiff stated he had troubles sleeping because of the pain and he often tossed and turned. The pain also interferes with the intimate side of his marriage and he is now limited in enjoying his gardening recreation.
34 Further, there are times when he has no choice but to do things such as lift his two young children even though he says he will suffer afterwards.[20]
[20]PCB 14, paragraph 21
35 Further, the plaintiff swears he is “close to illiterate” and really has no computer skills, although his wife has been trying to teach him the basics of how to use a computer.[21]
[21]PCB 15, paragraph 25
36 In his second affidavit sworn 28 May 2013, the plaintiff swore that he had now been certified to receive a Disability Support Pension. Dr O’Gorman has continued to provide medical certificates stating that he had no current work capacity. He continues to take slow-release Tramal and Mobic on a daily basis and he also takes Panadeine Forte and Endone when he has flare-ups of back pain.[22]
[22]PCB 28, paragraph 5
37 Further, he continues to have hydrotherapy once a week and he also tries to go for a regular walk for about 30 minutes or so as part of his treatment.[23]
[23]PCB 28, paragraph 6
38 Further, he swears he continues to have back pain which radiates into his legs. The level of pain fluctuates. At times the pain is severe. It continues to interfere with his sleep and his ability to work, interact with his family and to engage in day-to-day activity.[24]
[24]PCB 30, paragraph 11
39 Plaintiff’s counsel concedes that the plaintiff suffered from back pain prior to February 2010 and that radiological evidence reveals significant degenerative change in the lumbar spine in that period. However, the fact that the plaintiff was capable of full-time labouring work prior to suffering the injury and the fact that he is now significantly disabled, and which condition has continued virtually unabated since April 2010, there is a prima facie case made that the back condition has been aggravated to a significant extent, and on a Petkovski v Galletti[25] basis, the aggravation injury is more than “significant” or “marked” and “at least very considerable”.
[25][1994] 1 VR 436
40 Defendants’ counsel does not submit that the plaintiff is able to return to his pre-injury employment but relies significantly on the opinion of radiologist, Dr Kam, in supporting the contention that the underlying degenerative change has not undergone any significant deterioration such that it would support a claim for a serious aggravation as required by the legislation.
Medical evidence
41 The plaintiff was seen by trauma and general surgeon, Mr T J Russell, on 29 July 2009 in connection with the fall from the formwork in May of 2009. He took a history that there had been back trouble in the past whilst working as a mechanic. The pain had been then on and off. Over the years, he had had x‑rays including CT scans but none recently. The plaintiff had been told there were bulging discs at L4-5 and L5-S1. Apparently his wife gave much of the history. He had had osteopathic treatment as needed although not for the past two years. It had given temporary help. The plaintiff was presently suffering mild pain but he had been otherwise “all right” for the past two or more years.[26]
[26]Exhibit 22, Defendants’ Court Book (“DCB”) 30
42 Following the fall, the plaintiff was taken to The Royal Melbourne Hospital where he was an inpatient for six days. His left kidney was found on x-ray and CT scans to have a haematoma. He also had musculoskeletal pain on the left side but no fracture.
43 Complications with his kidney led to a coil embolization which was described as a procedure performed through the artery to block the artery from inside. Recently, his renal function had been okay on testing but he had lost some feeling in his left and right hand since the accident. Also, his left knee had been cramping if he sat for too long and he was a bit sore in his left loin (the kidney area). He had been referred to physiotherapy for the last few weeks which had helped a lot. He had had headaches in the left temple which started six weeks after the accident but which are now gone. He was due to start physiotherapy to his back next week on account of his left loin pain.
44 On examination of his back, he was able to flex to 90 degrees and extend for 20 degrees with left loin symptoms. Straight leg raising was 85 degrees on the left and 90 degrees on the right. He could sit forward to 95 degrees. At that stage, Mr Russell thought the plaintiff had some residual pain in his left loin (back) which did not seem to be structural from his back but seemed to be related to his kidney, which would settle slowly. Currently, he would require light duties for a period of probably another one to two months.
45 His prognosis was that he would have a full recovery in a functional sense from his kidney injury and residual back symptoms.[27]
[27]Exhibit 22, DCB 34
46 After the fall in February 2010, the plaintiff was referred by the defendants to orthopaedic surgeon, Mr Jonathan Hooper, who saw him on 11 May 2010. He took a history that the plaintiff had been doing construction work for some two years. He also related the fall from the roof in 2009 when he injured his left kidney, fractured some ribs and injured his back. Following the accident, he was off work for some four months and thereafter returned to work. In February 2010, he was lifting some timber and again strained his back. The backache had persisted since that time, as has left-sided leg pain. He further stated he could not sit or stand for long periods and car travel was very difficult for him. He had tried to return to work on four occasions but found the bending and lifting was difficult. He continued at that stage to be treated by his local doctor and by a physiotherapist. A CT scan had shown diminished joint space at L4-5 and L5-S1.
47 It was Mr Hooper’s opinion that the plaintiff had suffered a significant injury when he fell off a roof and injured his back. He had a “recurrent” injury to his back in 2010 and since that time, his backache has persisted. He has left-sided sciatica and he has been unable to get back to work.[28]
[28]Exhibit 6, DCB 16-17
48 The diagnosis at that stage was of “discogenic low back” and Mr Hooper could not see him returning to the heavy work doing construction work. He thought he would be better placed doing light work. The cause of his injury at that stage –
“… may well have been the fall that he sustained in 2009, together with a further aggravation of his back with a lifting incident in February 2010.”[29]
[29]Exhibit 6, DCB 18
49 Mr Hooper’s opinion was:
“He is unable, and will be unable to, return to his pre injury duties.
I would be pessimistic about his ability to return to his pre injury duties in construction work.
I do believe he will need to be re-trained and modified work needs to be given to him.”[30]
[30]Exhibit 6, DCB 18
50 The contributory factors to the plaintiff’s incapacity were said to be:
“… the significant fall that he had in 2009, together with a lifting incident in February 2010.”[31]
[31]Exhibit 6, DCB 18
51 In my view, Mr Hooper’s clinical assessment supports the plaintiff’s contention that the Petkovski v Galletti comparison of impairment before and after the February 2010 injury is one of a full capacity to work compared with a permanent inability to perform his pre-injury duties.
52 When seen again by Mr Hooper on 25 October 2010, he took a history that the back pain was worse. Further, the leg pain was now radiating to the plaintiff’s foot and he gave a history of a positive cough impulse. He had apparently been seen by a neurosurgeon, who had suggested that he have a spinal fusion. There were apparently no abnormalities on examination. An MRI scan performed in September 2010 had revealed multi-level degenerative disc disease, more marked at L4-5. The plaintiff gave a history that his pain was so severe that he could not get out of bed in the mornings on occasions. It was apparently on this basis Mr Hooper thought there was an emotional component to his discomfort. In this report he does not mention the lifting incident in February 2010 but considered that the plaintiff would never be able to return to heavy work or construction work and he considered that the fall in 2009 had precipitated the onset of his problems in his back.[32]
[32]Exhibit 22, DCB 21
53 Further, Mr Hooper considered the plaintiff did have a work capacity but –
“… he will have to be placed in suitable work and counselled as to the type of work he is able to do together with having a compliant employer.”[33]
[33]Exhibit 22, DCB 22
54 Mr Hooper again reported on 29 November 2010 when apparently he had been referred to a surveillance report showing the plaintiff carrying a child and/or a tin of paint for a short period. Mr Hooper considered that this was a different thing from doing repetitive lifting/bending/heavy construction work all day. He said he did not disbelieve the plaintiff when he said he has back and leg pain.[34]
[34]Exhibit 22, DCB 23
55 Further, Mr Hooper stated:
“I would stick to my opinion that this man has evidence of back pain and he said he has sciatica. I think it is important to get him back into the work-force and light work would be appropriate. … .”[35]
[35]Exhibit 22, DCB 24
56 Mr Hooper again reviewed the plaintiff on 21 February 2012 on behalf of the defendants. He took a history he had not worked for two years because of sciatic pain and back pain. He continued to be managed by hydrotherapy and pilates. He was taking Tramal and Panadeine. He had seen various specialists, including two neurosurgeons, who suggested an operation on his back, but an orthopaedic surgeon did not feel an operation would help. Housework at home was too much for him and caused him left-sided sciatica, particularly vacuuming. Although the examination was apparently normal, Mr Hooper still considered he had “some signs of illness behaviour”.[36]
[36]Exhibit 22, DCB 25
57 The plaintiff told Mr Hooper that the leg pain was worse than his back pain and Mr Hooper considered that a nerve root sheath injection should be tried and if this helps his leg pain, a decompression of that leg nerve root may need to be considered.[37]
[37]Exhibit 22, DCB 26
58 Mr Hooper’s opinion was the plaintiff would never get back to heavy construction work and the best that could be hoped for is that he gets back to some form of organised light work. He recommended that he see Mr de la Harpe again to see whether he needs any intervention to help with his sciatica. He thought the plaintiff had evidence of significant degenerative disc disease in the lower two segments of his lumbar spine, which had probably been accelerated by the fall that he had in 2009. Once again, Mr Hooper does not comment on the effect of the lifting incident in February 2010, apart from stating:
“The injuries that this man sustained have affected his ability to do heavy work and he also said he causes him discomfort about the house and doing house work. It is my view that he would be capable of doing suitable work if such a job can be found for him, but this would have to entail a relatively sedentary job and could not entail bending, lifting and agility.”[38]
[38]Exhibit 22, DCB 27
59 Finally, Mr Hooper saw the plaintiff again on 5 March 2013. He gave a history that he had applied for many jobs but he had not been able to obtain one and “one of his real problems is that he is illiterate”.[39]
[39]Exhibit 22, DCB 28
60 The plaintiff also continued to complain of backache and left-sided leg pain radiating to his foot, and he had a cough impulse. He was still taking Tramal and occasional Endone. On examination, there were no hard neurological signs and he had a full range of spinal movement. Mr Hooper still considered that the degenerative disc disease was the cause of his trouble and he would never get back to heavy work. He thought he did have a capacity to do suitable employment “but because he is illiterate finding a suitable job for him may not be easy”.[40]
[40]Exhibit B, DCB 28-29
61 Further, by notice dated 27 October 2011, the authorised agent for the Victorian WorkCover Authority accepted liability pursuant to s98C for the lower back injury suffered on 10 February 2010. Liability was accepted in accordance with the report of Dr Gary Davison on 23 September 2011.[41]
[41]Exhibit S and Exhibit 5 respectively
62 The plaintiff relies on the principle set down in the Court of Appeal decision of Ansett Australia Ltd v Taylor[42] to the effect that such an admission is not conclusive, but rather an admission that such injury had been sustained, which admission should ordinarily be regarded as very significant.
[42][2006] VSCA 171
63 In any event, Dr Davison examined the plaintiff on 23 September 2011. He noted that the plaintiff had suffered multiple injuries in a previous workplace incident on 26 May 2009; however, his impairment assessment related only to the claimant’s lower back and the date of injury being 10 February 2010. He took a history of the work for the first defendant commencing in 2008 and the history that the plaintiff had previously experienced “a little bit of a twinge in the back when leaning over cars” in his previous work as a mechanic. He further reported that he had received treatment from a physiotherapist twice. Although the plaintiff was unable to recall any investigations in the past, Dr Davison had the evidence of previous investigations from Mr Russell’s report of 29 July 2009. He also noted that the plaintiff had had osteopathic treatment according to Mr Russell, although the plaintiff and his wife had denied that. In any event, he took a history that the plaintiff was performing pre-injury duties without specific restriction by the time he injured his back on 10 February 2010. He further noted a radiological report dated 15 February 2010 which concluded:
“1Multilevel disc degenerative change principally affecting L4-L5 and L5-S1. Broad based disc protrusion at L4-L5 potentially displaces and/or effaces the L5 nerves in their lateral recesses, but this would be better assessed with MRI, if clinically appropriate. Broad based disc protrusion L5-S1 posteriorly displaces and mildly effaces the right S1 nerve in the lateral recess with minimal posterior left S1 neural displacement.
2Disc/osteophytic complex left L4/5 foramen with mild effacement of the left L4 nerve.
3Mild lower lumbar facet joint arthropathy.”[43]
[43]PCB 137
64 Thereafter, the plaintiff proceeded to undertake light duties intermittently until then end of April 2010, when he ceased work all together because there was too much pain in his lower back.
65 The plaintiff then returned to his general practitioner, who arranged another CT scan. The report dated 27 May 2010, which was included in his documentation, concluded:
“By far the most significant abnormality is at L4/5 with moderately severe central canal stenosis and left sided foraminal stenosis. The disc and osteophytes encroach on both budding L5 nerve roots and the left L4 nerve root. There has been no improvement and in fact perhaps a little deterioration since the previous examination.”[44]
[44]PCB 139
66 A further investigation was undertaken on 1 October 2010 which relevantly stated:
“At L4/5, there is an annular tear and a broad disc bulge with a large left-postero-lateral protrusion displacing and compressing the left L5 nerve against the subjacent facet joint. Disc contacts, but does not appear to compress the right L5 nerve as it exists the thecal sac. Disc and vertebral body osteophyte in the left foramen contacting the under surface of the left L4 nerve. There is no significant right foraminal narrowing. At L5/S1, there is an annular tear in the disc marginally large to the right of midline with a disc bulge, but touches but does not substantially compress the right S1 nerve as the nerve exists the thecal sac. Minimal foraminal narrowing on the left. Minimal foraminal narrowing on the right. Low grade facet joint arthropathy on each side.
The most important finding is the compression of the left L5 nerve as it exits the thecal sac due to a disc protrusion at L4/L5.”[45]
[45]PCB 140
67 At the time of examination, the plaintiff reported constant pain across the low back and radiating into both buttocks and down the posterior aspect of both thighs. Current treatment consisted of Mobic and Panadeine Forte taken as necessary.
68 On examination, the plaintiff was described as pleasant and cooperative. In all, his range of movement of the thoracolumbar spine was considered to be normal.
69 The radiological investigations confirmed the presence of two-level pathology in the lumbosacral spine. The main abnormality was said to be at L4-L5 where there was evidence of an annular tear in a broad-based disc bulge with a left-sided posterolateral protrusion causing displacement of the left L5 nerve root. There was also evidence of an annular tear at the L5-S1 segment with a marginal right-sided disc bulge without evidence of compression of the right S1 nerve root.
70 Dr Davison considered that the plaintiff’s presentation with chronic back pain, stiffness and bilateral lower limb pain were consistent with radiological findings of intervertebral discopathy at L4-5 and L5-S1 with involvement of both L5 nerve roots and possibly the right S1 nerve root. The symptoms had persisted for eighteen months and were reportedly worsening slightly. Dr Davison’s prognosis therefore for resolution was poor. Acting on a history that the plaintiff –
“… had little functional impairment as a result of lower back pain prior to 10.2.2010. The radiological evidence suggested that the main cause of the worker’s symptoms was the L4-L5 intervertebral disc lesion which was probably not pre-existing. There was evidence of pre-existing degenerative changes, however.”[46]
[46]DCB 10
71 Importantly, Dr Davison stated:
“I therefore consider that given the worker did not lose any time off work prior to 10.02.2010, that any pre-existing degenerative changes were not contributing to lower back impairment. As such, I consider that there is no cause to apportion the impairment.”[47]
[47]PCB 10
72 Dr Davison assessed the plaintiff as suffering a 5 per cent whole person permanent impairment.
73 Nonetheless, in terms of identifying the injury attributable to the incident on 10 February 2010, defence counsel relies heavily on the report of consultant radiologist, Dr Anthony Kam dated 19 March 2012. It is submitted that it is only Dr Kam who has the full story of the radiological evolution of the back such that the ultimate conclusion ought to be that there was a soft-tissue injury only suffered on 10 February 2010 and no identifiable aggravation injury which has permanent consequences which can themselves be said to be “serious”.
74 In making this submission, it has to be borne in mind that Dr Kam has not made a clinical assessment of the plaintiff at the time that the various images were requested, or indeed at any time. In my view, the clinical notes which accompany the three images that he assessed in detail are quite relevant. First, the clinical note accompanying the CT scan on 26 September 2007[48] was:
“Clinical notes: lower back tenderness.
…
Comment: prominent L4-5 disc bulging and relatively mild right sided L5‑S1 disc bulging.”[49]
[48]Exhibit T
[49]Exhibit T, PCB 122
75 Then, for the second CT scan taken on 15 February 2010, it is recorded:
“Clinical notes: low back pain with occasional radiation to both legs.”[50]
[50]Exhibit T, PCB 137
76 This is clearly evidence of a deterioration in the clinical picture. In this context, Dr Kam states that the L5-S1 broad-based posterior right subarticular disc protrusion at L5-S1 is similar to 2007. However, he notes:
“There is persistent posterior displacement of the traversing right S1 nerve root.”[51]
[51]DCB 40
77 Would this explain the occasional radiation at least to the right leg? His report is silent.
78 Thereafter Dr Kam assesses the CT scan taken 27 May 2010 but once again omits the following clinical note:
“Reassessment of left disc prolapse with bulges at L4-5 and L5-S1 with possible impingement of L5 and S1 nerves.”[52]
[52]Exhibit T, PCB 139
79 Further, the reporting radiologist, Dr Jacqueline Pearce, concluded:
“By far the most significant abnormality is at L4-5 with moderately severe central canal stenosis and left sided foraminal stenosis. The disc and osteophytes encroach on both budding L5 nerve roots and the left L4 nerve root. There has been no improvement and in fact perhaps slight deterioration since the previous examination.”[53]
[53]Exhibit T, PCB 139
80 Although Dr Kam seems to disagree with Dr Pearce, it would be helpful if his opinions were referrable back to the clinical picture which is contemporaneous.
81 Further, on his assessment of the MRI dated 29 September 2010, the clinical note is similarly to the effect:
“Low back pain radiating to the left leg.”[54]
[54]Exhibit T, PCB 140
82 Dr Kam notes that the L4-5 disc bulge seen on 26 September 2007 is now in a posterior focal left paracentral position with a resultant displacement and compression of the traversing left L5 nerve root.
83 Then, the examining radiologist, Dr Cameron Leopold, has reported:
“The most important finding is the compression of the left L5 nerve as it exits the thecal sac due to a disc protrusion at L4-5.”[55]
[55]Exhibit T, PCB 140
84 Given the clinical note of pain radiating to the left leg, I consider it would have been helpful if Dr Kam could have made some comment with respect thereto.
85 In any event, I accept his opinion that –
“The progression of osteophyte formation at the L4-5 level between 26 September 2007 and 15 February 2010 is compatible with progressive degenerative change.”[56]
[56]DCB 41
86 In any event, he makes the following comment:
“Comparison of the images from before the lifting incident on 26 September 2007 and subsequently on 15 February 2010 shows disc protrusion at L4-5 which remained minimally different in size but slightly altered in position. This change may be related to the 10 February 2010 incident or from natural time evolution.”[57]
[57]DCB 42
87 Given the clinical comparison referred to above both from the various examining medico-legal examiners and also from the clinical notes from the examining radiologists, I consider that the change Dr Kam refers to is probably more likely to be related to the 10 February 2010 incident than to the “natural time evolution”.
Conclusions
88 The plaintiff has been significantly disabled from at least April 2010 such that when one compares his capacity for employment from September 2009 till February 2010, the clinical deterioration in his condition in that period is such that he has gone from an ability to perform full-time labouring employment to a highly compromised employability.
89 In my view, he has discharged the onus of proof in showing that the injury suffered in February 2010 aggravated the underlying degenerative condition, in particular producing sciatic symptoms at L4-5 which were superimposed on pre-existing degenerative changes such that the aggravating injury is responsible for the change in his capacity for employment.
90 Accordingly, there will be leave to the plaintiff to issue proceedings for loss of earning capacity with respect to the lumbar back injury suffered on 10 February 2010 and according to the principles laid down in Advanced Wire & Cable Pty Ltd v Abdulle,[58] the plaintiff will also be granted leave to issue proceedings with respect to pain and suffering damages.
[58]Supra
91 I will hear the parties as to consequential orders.
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