Cottier v Allmore Constructions Pty Ltd and VWA
[2010] VCC 1454
•14 October 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-04969
| CRAIG COTTIER | Plaintiff |
| v | |
| ALLMORE CONSTRUCTIONS PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 6 October 2010 |
| DATE OF JUDGMENT: | 14 October 2010 |
| CASE MAY BE CITED AS: | Cottier v Allmore Constructions Pty Ltd and VWA |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1454 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – injury to the lumbar spine – pain and suffering only – whether consequences to the plaintiff are serious.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie SC and | Maurice Blackburn Lawyers |
| Mr S Carson | ||
| For the Defendants | Mr A Moulds | Minter Ellison |
| HER HONOUR: |
1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the first defendant in or about late June 2003 (“the first date”) and on or about 21 August 2003 (“the second date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s.134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The impairment of body function relied upon in this case is the lumbar spine.
5 The impairment must have consequences in relation to 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 hearing as being more than significant or marked and at least very considerable.
6 The plaintiff relied upon two affidavits and he was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
7 The plaintiff is presently aged thirty four, having been born on 12 December 1975. He left school at the end of Year 11, having generally struggled with study.
8 The plaintiff then worked as a fitter and turner. He went hay carting for a time and also worked as a lifeguard at the local swimming pool.
9 In mid 1994, the plaintiff started his apprenticeship in carpentry through Gippsland Group Training. He worked on some houses as well as an hotel in Thredbo before doing form work in Melbourne for about two years. He then worked for Gridlock Constructions building houses, factories and apartments, and later on renovations.
10 The plaintiff deposed that although he experienced back pain and stiffness over many years before the first date, his low back condition did not affect his lifestyle in the years leading up to that time.
11 Whilst in cross-examination the plaintiff said that he could not remember having problems with his back before 2003, he confirmed he told Mr Battlay he had a pinched sciatic nerve three years earlier from just a build up of work.
12 The plaintiff could not remember having any investigations carried out at that time nor was he sure in what leg he had had referred pain at that time.
13 In October 2002, the plaintiff started work for the first defendant as a carpenter. He generally earned between $800 and $1,000 net per week.
14 The plaintiff’s duties with the first defendant involved making timber frames and pitching roofs, laying floors and carrying and storing heavy white goods.
15 The plaintiff was required to use a range of carpentry tools. His back was often exposed to vibrations from those tools. The plaintiff engaged in frequent bending, twisting and lifting, and his work required the full and free use of his back.
16 In cross-examination, the plaintiff agreed he had received two written warnings in terms of absences from work in March 2003.
17 On the first date, the plaintiff was lifting a Hebel panel, which he estimated weighed at least eighty kilograms, with his foreman.
18 Whilst the plaintiff and the foreman were lifting the panel, the plaintiff heard the foreman groan and the plaintiff then realised how heavy the panel was. The foreman leaned forward with the panel, which meant the plaintiff took most of its weight. The plaintiff was in a squat position at that time and the weight of the panel pushed him to the ground and he experienced sharp low back pain (“the first incident”).
19 The plaintiff disagreed with the version of the first incident recorded by Dr Bloom and confirmed the above version.
20 After the first incident, the foreman insisted the plaintiff keep working. Later that day, that plaintiff put an icepack on his back. A few days later, the plaintiff saw Dr Bloom at the Port Melbourne Medical Centre. The plaintiff cannot recall if he took time off work at that time.
21 The plaintiff took anti-inflammatories and painkillers, used an icepack and did plenty of walking. He may have done light duties for a week or two, before resuming normal duties.
22 The plaintiff continued to suffer some intermittent back pain and discomfort, as well as flare-ups, including one time when snowboarding at Mount Buller in late July 2003.
23 The plaintiff, whilst not taking any time off work, continued to see a physiotherapist in South Melbourne. The plaintiff’s back was regularly locking up as he kept working.
24 On the second date, the plaintiff was unloading some whitegoods and putting them in a storage area. He twisted as he moved a trolley holding a wall oven and felt sharp low back pain (“the second incident”).
25 The plaintiff reported the second incident and went to see a doctor. He was then off work for ten days before returning to light duties.
26 The plaintiff was cross-examined about the incident report in relation to the second incident and he confirmed the above version which did not involve a dishwasher, as described in the incident report.
27 Despite no mention being made by Dr Bloom of the second incident in his report, the plaintiff confirmed he had, in fact, told Dr Bloom about the second incident and that it occurred in the manner set out in his affidavit.
28 In October 2003, the plaintiff had just hung a door at the first defendant’s worksite and was turning, when he felt sharp pain in his low back.
29 The plaintiff returned to Dr Bloom and had a few days off work, before returning to light duties. At some later stage, Dr Bloom cleared the plaintiff for normal duties, but the plaintiff continued to suffer back pain and discomfort, and he struggled with his work.
30 The plaintiff disagreed with Dr Bloom‘s report of the plaintiff’s progress subsequent to the second incident.
31 The plaintiff did not think he was ever completely pain free, but agreed that on occasions he had an unrestricted range of movement.
32 The plaintiff told Dr Bloom of a flare-up of back pain when snowboarding. The plaintiff explained in his viva voce evidence that he was just standing on a snowboard and, when he went to turn around to take off, his back just seized up on him. He had not actually started moving when this occurred.
33 The plaintiff confirmed that he had told Dr Bloom that the original injury in the first incident had been the precipitating factor to his condition at that time.
34 The plaintiff agreed with the general proposition he was going well until a relapse in October 2003, but he disagreed that on examination on 10 November 2003, that he had only intermittent low back pain which did not radiate and that he had a full range of movement.
35 When he was put back on full time duties, the plaintiff told Dr Bloom that he did not think he was ready and that he was still experiencing a lot of pain. The pain was always there and it did go down his leg. There was always a dull pain and the radiating pain down his leg varied from his hamstring to his foot.
36 The plaintiff denied he told Dr Bloom he was pain free on 9 March 2004. He also denied he was coping with unrestricted work and that he was feeling very well at that time.
37 The plaintiff was certified fit to return to normal duties in March 2004, and made redundant on 16 April 2004.
38 The plaintiff received WorkCover payments in respect of his back injury; both medical expenses and weekly payments of compensation.
39 In cross-examination, the plaintiff confirmed he had lost his licence for forty months from early 2004.
40 The plaintiff deposed that, after leaving the first defendant’s employ, he attempted working as a subcontractor carpenter. He could not handle the work because of the state of his back and leg.
41 In cross-examination, the plaintiff said that he did not do a lot of work at this time. He tried to sub-contract and work on his own, building, but it proved too hard. He tried to get back into building but he could not do it.
42 The plaintiff obtained work making decks, kitchens, cupboards and doors. He did not submit taxation returns for those years but pretty much lived off his earnings from these jobs. He did not claim social security.
43 The plaintiff moved back to Gippsland just after his mother died and a couple of weeks later, at the end of 2005, the manager of Warragul Screens (“the business”) asked the plaintiff if he could help out in that business which installs shower screens, fly screens and security doors.
44 In cross-examination, the plaintiff explained that he continues in this job which involves him manufacturing doors and cutting them out. He described the job as something he does using “an abbreviated part” of his skills as a carpenter.
45 The manager of the business allowed the plaintiff to have a major say in the setup of the factory to suit the plaintiff’s back condition. For example, all the work and tool benches are higher than normal so the plaintiff can minimise bending, and there are no racks requiring the plaintiff to bend down.
46 The bench is set up in a fashion where the plaintiff takes door frames off the shelf from above shoulder height and puts them on rollers.
47 The plaintiff explained there is a difference between this job and his work before 2003 as the material he currently works with is a lot lighter and he is not working on site. In his former role, he was required to do a lot more bending to build a house. He was required to get up on the roof and walk around and climb in and out of places. He does not have to do any of that now. He just has to fit doors, which are aluminium, and plaster which is quite light and easy to manoeuvre.
48 In addition to working in the factory, the plaintiff is involved in the installation of doors. Depending on the day, he travels in his Toyota High Ace van to homes where he may install up to six or seven doors a day.
49 The plaintiff presently works full time as a subcontractor, earning $1,000 per week, out of which he pays taxation and superannuation. For the first three years he worked in the business he worked for wages.
50 The plaintiff’s work is fairly light and he is helped with heavier tasks by the business manager. Because of the state of his back, the plaintiff has to constantly watch out what he does and he has to take time off now and then because of back pain.
51 Lately, the plaintiff has been taking Wednesdays off and he has been able to do this, as work has not been so busy. That works well, as he can rest his back midweek before getting back into things on Thursday and Friday. Even with the modified workplace and the ability to work around his back injury where possible, the plaintiff still finds his back worsens significantly over a normal or routine working week, and by the end of the week he is sore and tired.
52 Even with the job arrangements, when the plaintiff gets a particularly bad flare-up of pain, he can be very significantly restricted by pain for a number of days, and when this happens he finds it best to keep at work and just do light duties, rather than rest at home.
53 If he carries out lighter duties and paces himself, the plaintiff can often work through pain over a couple of days or so, rather than being out of action for a week, if he rested and stopped using his back.
54 The plaintiff is still very worried about his working future and feels lucky to have the modified job he does have. He does not think he would be able to be reliable and be able to work regularly work in the open market.
55 The plaintiff’s back injury continues to greatly impact on his life. It prevents him ever returning to carpentry. The repeated bending, in particular, was a significant problem for him.
56 In cross-examination, the plaintiff agreed that his life is largely filled in with his work and his leisure time playing golf, which he loves. He lives just outside the town of Drouin. He attends the local pub for meals and he knows plenty of people in Drouin. His family and his sister, whom he sees regularly, also live in the area.
57 Before suffering back injury, the plaintiff was physically fit. He loved being a carpenter, particularly the satisfaction of building houses. It was his chosen trade and he wanted to make a future in it. He was proud of his tradesman abilities and being a carpenter gave him confidence.
58 Since the second date, back pain and discomfort affect the plaintiff’s ability to engage in most of his usual interests and activities. He has difficulty with household chores and gardening involving a lot of bending or stooping
59 Prior to suffering injury, the plaintiff enjoyed engaging in a range of active sports, including cricket, playing for the ‘Port Melbourne Colts’ in B Grade every Saturday during the season.
60 The plaintiff played cricket in the summer of 2003. At that time, he was aged twenty seven. He agreed, in cross-examination, he was getting towards the end of his cricket career at that time.
61 However, in re-examination, the plaintiff said that he was planning on playing the 2003-2004 season. His friends still play cricket and if he had not injured his back he would be also still be playing.
62 Prior to suffering injury, the plaintiff loved snowboarding, going a few times during the ski season. He has not snowboarded since August 2003. His friends still go snowboarding and the plaintiff misses going with them.
63 The plaintiff also enjoyed dirt bike riding, sailing a catamaran he had built, beach cricket, social football and soccer.
64 The plaintiff used to ride his bicycle more than one hundred kilometres a week. While he was working for the first defendant, he sometimes rode to work from Port Melbourne to Glenhuntly. On the weekends he also went cycling with friends.
65 The plaintiff no longer goes cycling because it is too difficult. He is worried about hitting bumps and jarring his lower back.
66 The plaintiff started playing golf when he was about twelve. In more recent times he has been playing more regularly, having joined the golf club at Drouin when he moved there in late 2005. He plays pennant golf for Drouin and his handicap is presently fourteen and he plays every Saturday and Wednesday.
67 The plaintiff is not playing a round in any less shots than he was before he injured his back.
68 After suffering injury in 2003, it took the plaintiff a long time to get back to golf and to be able to walk eighteen holes. He has had the help of the professional at Drouin who taught him to play in a way that minimises the effect on his back.
69 The plaintiff has modified his style to avoid flare-ups of his back pain. He has not got totally the same swing as other people but he agreed in cross- examination that he had a full swing on most days.
70 At times the plaintiff has difficulty picking up the ball but he generally does so by hand. When he is playing, teeing up or picking up a ball, he leans on the driver and lifts his left leg up to make it easier to get down.
71 The plaintiff always stretches before playing golf and after he has finished. Whilst playing, he leans on his putter to keep his balance and take the pressure off his back. When lining up to putt, he squats. He has his putter with him and it comes in quite handy for balance and stability.
72 Having been shown on video playing golf, the plaintiff agreed he was shown on one occasion with a good swing and said he wished he could swing like that all the time.
73 The plaintiff explained that he put his foot on the tailgate to change his shoes to make it easier for himself. A lot of times at the end of 18 holes he had trouble taking off his shoes.
74 The plaintiff described how the roll bar on the ute stays there permanently so he can use it to drag things such as the golf buggy in and out of the back of the ute. Doing that takes a lot of pressure off his back and makes it easier for him to operate things.
75 The plaintiff finds the walking playing golf is particularly good for his back. He often feels a good deal of pain and stiffness while playing, but feels that overall, golf helps loosen up his back and helps keep his pain levels under some degree of control.
76 On some days when the plaintiff’s back is worse, it usually takes a few holes to warm up. He gives himself the morning to get mobile. In re-examination, the plaintiff agreed that he limped on occasion when playing golf.
77 The plaintiff continues to experience quite sharp pain in his back most of the time.
78 Whilst the plaintiff’s level of pain varies from day to day, there is at least some pain present at all times. The level of pain usually increases when sitting or standing for a long time, bending, twisting and lifting. Cold weather, coughing and sneezing also increases his level of pain. If he overdoes physical activity, his left leg can “go on him”. Occasionally he suffers pain and “pins and needles” in the left leg, as well as numbness in the left foot.
79 Back pain continues to disturb the plaintiff’s sleep and he wakes up at all hours because of bad back pain and usually does not feel rested. In examination-in-chief, he confirmed he still suffers from sleep disturbance. He wakes up at all hours, gets up and walks around until he gets back to sleep. That is the situation most nights and on average he gets about four to six hours’ sleep a night.
80 The plaintiff believed his back injury, at least partially, contributed to the eventual breakdown of the relationship with his girlfriend, as it caused him to be irritable, and resulted in sexual problems.
Treatment and Medication
81 After being discharged from Dr Bloom’s care in March 2004, the plaintiff did not have any treatment, nor did he take any medication until 2008. He could not afford to have treatment and he did not know he could claim it on Medicare.
82 The plaintiff sees his general practitioner sometimes if he has a particularly bad episode. However, he has had to learn to deal with these episodes himself as there does not appear to be any miracle cure a doctor can offer.
83 The plaintiff deposed that he no longer has much active or regular medication, as his condition seems to have reached a point where not much can be done at all.
84 The plaintiff said he had problems with anti-inflammatories because it made him “crook in the guts”.
85 The plaintiff said that the last time he was prescribed Diazepam was around the time of the CT scan in 2008. He used it for particularly bad periods of pain, although he was keen to avoid taking medication. Having said that, the medication seemed to give him some relief.
86 In re-examination, the plaintiff agreed that he had responded well to anti- inflammatories and other relaxant medication prescribed by Dr Agaskar, whom he last saw about a month ago when he complained to him of lower paraspinal muscle spasms.
Incident, Reports et cetera
87 The plaintiff made a statement on 17 July 2007 detailing the two incidents and a flare-up of his back pain snowboarding.
88 The first incident was noted in the Incident Injury Register form dated 21 June 2003. The incident was described as happening “while lifting Hebel blocks twisted and strained lower back”.
89 The second incident was reported in the Incident Injury Register form dated 21 August 2003 when “moving ovens and dishwashers”.
The Plaintiff’s Medical Evidence
90 Dr Michael Bloom, occupational physician, reported on 9 July 2007. The plaintiff first presented to him at the Bridge Street Clinic in Port Melbourne on 24 June 2003. The plaintiff gave a history of the incident three days earlier when he was lifting aerated concrete panels weighing eighty kilograms and that while rolling onto the flat, he experienced sudden pain focussed on the left side of his low back.
91 Dr Bloom noted the plaintiff felt asymptomatic over the weekend after massage, however the day before he presented to him, whilst driving around looking for an apartment, the plaintiff’s back tightened up again and he was complaining of pain with bending. He felt sore with sitting, although standing was reasonably comfortable. He admitted to a slight cough impulse but there was no radiation of pain.
92 Dr Bloom reported the plaintiff informed him that three years earlier he suffered what he described as a pinched sciatic nerve but he lost no time from work as he was self employed and he recovered.
93 Dr Bloom reported that the plaintiff told him that he had been suffering with low back pain since adolescence, with pain affecting his neck and upper back, as well as his lower back. The plaintiff suggested that he had popped his discs out and he told Dr Bloom that he had been regularly attending a chiropractor for many years for treatment of his back and neck.
94 Dr Bloom’s initial clinical examination revealed tenderness with muscle spasm at the left of L5-S1. There was an unrestricted range of movements and there were no abnormal neurological signs. Specifically, there was no evidence of muscle wasting or weakness. Deep tendon reflexes were brisk and equal and there were no sensory changes noted.
95 Dr Bloom noted the plaintiff was very much better on review on 28 June 2003 and suggested he was pain free but had some slight stiffness. Examination then showed an unrestricted and pain free range of movement. The plaintiff was certified fit for restricted duties.
96 On 1 July 2003, the plaintiff was asymptomatic and discharged from Dr Bloom’s care with a certificate allowing him to resume normal and unrestricted duties.
97 On the next presentation on 21 August 2003, the plaintiff advised he was pain free until a relapse of his low back while snowboarding at the end of July. He had had physiotherapy for three weeks without improvement. He continued to complain of lower back pain but he now experienced intermittent pain radiating to the left foot, with tingling and a pins and needles sensation of the foot, as well as the severe pain in his left buttock. He was also experiencing severe cough and sneeze impulse.
98 Dr Bloom noted the plaintiff’s symptoms had gradually worsened over the previous two weeks and he was now presenting in a somewhat debilitated state. The plaintiff stated that he felt his original injury in the first incident had been the precipitating factor to his current condition. Dr Bloom noted in the meantime the plaintiff had been managing to play golf weekly.
99 On examination, there was a significantly restricted range of movement due to pain. Most importantly, Dr Bloom there was an absent left ankle reflex which, together with the symptoms of left leg pain and foot pain, indicated a lumbosacral left-sided radiculopathy. An x-ray was normal and a diagnosis of left-sided lumbar radiculopathy was made. The plaintiff was certified unfit for work.
100 On review on 25 August 2003, the plaintiff was very much better, experiencing only a dull ache in the left buttock with no further leg pain. There was a good range of movement and the left ankle reflex was now able to be elicited, although it was less brisk than the right.
101 By 28 August 2003, the plaintiff continued to improve but he still had a persisting dull ache across the low back but no further leg pain. He was then certified fit to resume work on restricted duties.
102 There was a further gradual improvement and when examined on 16 September 2003, the plaintiff told Dr Bloom he was pain free apart from an occasional ache in his left buttock which was transient and lasted up to fifteen minutes at a time.
103 Examination revealed an unrestricted pain free range of movement and there was no abnormal neurological signs.
104 The plaintiff was certified fit for modified duties with a maximum lifting of ten kilograms and the ability to have control over his physical work.
105 On 9 October 2003, the plaintiff remained free of symptoms and was coping with his work with some light restrictions. The left ankle reflex was again somewhat dull but there was an unrestricted range of movement. The plaintiff was certified fit to continue with restricted activities; however, by 29 October 2003, he experienced a relapse of low back pain with intermittent pain radiating down the back of his left leg as far as his heel after refitting a door. The plaintiff was then certified fit for restricted duties with a five kilogram lifting limit and conservative treatment was continued.
106 However, in view of the severity of persisting symptoms and findings, the plaintiff was referred for a CT scan of his lumbosacral spine which confirmed the presence of an herniated disc at the L5-S1 level with impingement on the left S1 nerve root.
107 Dr Bloom noted the plaintiff’s condition improved rapidly and by 10 November 2003, he suffered only intermittent low back pain which did not radiate. He had a full range of movement and he was certified fit for very restricted duties.
108 On the plaintiff’s last attendance for back pain on 9 March 2004, the plaintiff told Dr Bloom he was pain free and coping with unrestricted work and feeling very well. There was an unrestricted and pain free range of movement and there were no abnormal neurological signs.
109 When Dr Bloom saw the plaintiff on 22 June 2004 for an unrelated matter, the plaintiff made no mention of his back condition.
110 Mr Tiew Han, consultant neurosurgeon, saw the plaintiff on 18 May 2009 on referral from Dr Georgy.
111 The plaintiff told Dr Georgy of suffering injury at work lifting heavy panels in 2003 and about two months later re-aggravating his back pain after he lifted a wall oven and he developed left leg numbness.
112 The plaintiff advised that after being off work for ten days, his pain gradually improved to a degree whereby he could return to light duties. He subsequently changed jobs, and when seen by Mr Han, he was working at Warragul Security Doors. The plaintiff also managed to play golf when he was able to and if the pain was severe he used an icepack. He could walk along the beach for twenty minutes.
113 On examination, the plaintiff had a straight leg raise of 50 degrees bilaterally. Deep tendon reflexes and power were normal in both limbs.
114 Mr Han noted the plaintiff had undergone a CT scan. In his opinion, the plaintiff’s pain was related to disc deflation and degeneration at L5-S1. There was no evidence of any nerve root impingement; hence he did not believe that surgery was necessary. He thought the plaintiff’s pain was manageable and was stable.
115 Mr Han encouraged the plaintiff to continue with an icepack and light exercise, such as walking and golf, and at the same time avoid repetitive bending and twisting to his back. Mr Han did not think surgery was warranted and he did not arrange to see the plaintiff again. He did not believe that the plaintiff required any further treatment.
116 Mr Han diagnosed a minor bulging disc at L5-S1 without any nerve root impingement, consistent with the stated cause. In his view, the plaintiff’s condition was stable and he should continue in his present job and avoid repetitive bending and twisting to his back. From time to time however, Mr Han thought that the plaintiff may have aggravation of back pain and if that was the case, he should rest and avoid any excessive physical activity. He noted that condition would normally settle with time.
117 Dr Georgy from the Central Clinic at Drouin confirmed by letter dated 16 May 2010 that the plaintiff did not need surgical treatment and that he had not consulted the plaintiff regarding his back problem since 6 March 2009, and he presumed the plaintiff was doing well.
118 The plaintiff had first consulted Dr Georgy in relation to back pain on 13 August 2008, when the plaintiff told him he had had a back injury seven years ago. Investigations were then organised, which showed a disc prolapse without affecting the nerve root.
119 Dr Georgy reported in February 2009 that it was very difficult to relate that condition to the back injury that happened seven years ago, because disc prolapse was common in general practice without any accident; he did not have any records about the plaintiff’s previous back injury; he had no knowledge of any investigations or management done at that time; nor of the WorkCover process that was done previously.
120 Dr Georgy advised most cases recovered very well from disc prolapse after conservative treatment and most were able to go back to work. He thought the plaintiff’s prognosis was good and if the pain was persistent, referral to a back specialist was appropriate.
121 A number of reports were provided by Dr Emerson, chiropractor, who first saw the plaintiff on 6 October 1987 for neck pain. From that date until 1997, the plaintiff had twenty seven treatments, mostly for neck pain. There was one episode of neck and lower back pain reported on 12 October 1996, following the plaintiff being hit on the right side of the head by a beam at work.
122 The plaintiff next presented to Dr Emerson on 16 June 2008, reporting neck and upper back pain, and told Dr Emerson about the first incident.
123 The only treatment provided by Dr Emerson has been passive lumbosacral stretch and massage.
124 Dr Emerson diagnosed biomechanical dysfunction of the cervical and thoracic spin and lumbopelvic region with associated myofascitis.
125 Dr Emerson reported in September 2010 that the plaintiff’s last appointment was on 5 March 2010.
126 He noted that the plaintiff’s neck and upper back responded favourably to treatment. For the lower back, the plaintiff had requested only passive treatment, and passive traction appeared to be helpful. He noted that he had not seen the plaintiff with an acute episode of low back pain, so he was not sure if passive treatment would be helpful or not.
127 Dr Emerson considered that the plaintiff’s prognosis needed to be guarded, as the August 2008 CT scan indicated a central L5-S1 disc prolapse. He noted the plaintiff was working normal duties full time, but needed to continue to be aware to pace his work and be careful with lifting.
128 Ms Kesterton, soft tissue therapist, reported on 22 April 2009 that the plaintiff had three treatments with her in 2007, relating to sharp pain in his lumbar spine and to his left buttock, also tightness in his left hamstring and cramping in his left calf.
129 Dr Agaskar of Albert Street Family Medicine in Warragul reported on 10 September 2010 that on 18 August 2010, he saw the plaintiff for an exacerbation of his chronic back injury, because his other general practitioner was not available.
130 On examination, he noted that the plaintiff was trying to lift a rolling security shutter at work, following which he experienced worsening of his back pain and “pins and needles” in his left lower leg.
131 On examination, the plaintiff’s lower paraspinal muscles were in spasm and his lumbar spine movements were restricted. It was noted the plaintiff had been suffering from chronic low back pain due to a herniated lower lumbar disc, as a result of a workplace accident seven years earlier. The plaintiff was prescribed anti-inflammatories and muscle relaxant medication, to which he responded well.
132 A note of that attendance set out:
“Old back injury at workplace seven years ago. Disc herniation, lower lumbar. Exacerbated yesterday while trying to lift security door. Lower back pain and pins and needles, left calf, no limb weakness. No spinal tenderness, paraspinal muscle spasm lower lumbar, restricted movements of spin, bilateral leg normal, Diazepam and Prednisolone prescribed.”
133 When the plaintiff saw Dr Agaskar on 31 August 2010, Dr Agaskar noted that the back was better. The plaintiff complained of bilateral pain, worse on the left. He was tender bilaterally on the joint lines. There was a normal range of movement and no effusion.
The Plaintiff’s Medico-Legal Evidence
134 The plaintiff was examined by Dr Reid on behalf Allianz Workers’ Compensation Insurance on 16 July 2007.
135 The plaintiff told him of the first incident, an aggravation snowboarding, and the second incident.
136 The plaintiff told Dr Reid he played 9 holes of golf once a week until the first incident and thereafter an occasional 9 holes and began playing 18 holes of golf fourteen months ago.
137 Examination of the plaintiff’s lower back showed tenderness in the left sacroiliac region. Flexion was to 70 degrees, extension 25 degrees, lateral flexion 30 degrees to each side, and rotation 50 degrees to each side. There was mild pain at the extremes of the range.
138 Sensations were normal in both lower limbs, in particular, in the distribution of the S-1 nerve root. The ankle reflexes were minimal in both lower limbs and the power was normal.
139 Straight leg raising showed 70 degrees of flexion on the right and 40 degrees on the left, at which stage the plaintiff began to feel tingling in his left leg. There was a positive nerve stretch test on the left side.
140 Dr Reid thought the main contributing factors to the plaintiff’s condition were the two incidents. He did not think the snowboarding injury was contributing to the plaintiff’s present condition, because the plaintiff had returned to his baseline of pain and was doing normal duties after a week, before he sustained injury in the second incident.
141 Dr Reid considered that the second incident was the main contributing factor to the plaintiff’s present condition, given he had developed sciatic pain after that injury.
142 The plaintiff said to Dr Reid he could not understand why Dr Bloom had not mentioned the snowboarding incident, because the plaintiff told Dr Reid he had told Dr Bloom about it and that he had recovered from the effects of it when he suffered further injury in the second incident.
143 Dr Reid thought the injury in the second incident was a new injury with no predisposing factor, as there was the onset of radicular symptoms from nerve compression. He thought the injury on the second date was a new injury predisposed to by the injury on the first date. On examination, he thought the work component of either injury had not resolved.
144 Dr Reid felt, as the plaintiff had not recovered, he should be referred to a neurosurgeon. In his view, there was a likelihood of the plaintiff needing an MRI scan and possibly surgery in the form of a laminectomy.
145 Dr Reid diagnosed a lower back injury with a prolapsed disc at L5-S1 and compression on the S1 nerve. He thought the plaintiff was capable of doing duties not involving bending or lifting over ten kilograms.
146 Mr Kevin King, orthopaedic surgeon, examined the plaintiff on 4 December 2009.
147 The plaintiff told Mr King that he had developed some mild neck ache at the age of twelve and he had chiropractic treatment on and off over the years but the symptoms were never more than minimal and never interfered in any way with his work as a carpenter.
148 The plaintiff gave Mr King a history of two incidents whilst working for the first defendant. He told Mr King that after the first incident he was put off work for some days and returned on light duties, and later within a few weeks to normal duties, despite persisting back and left leg pain.
149 The plaintiff told Mr King that several weeks after the first incident his back ache flared while snowboarding but he continued to work on heavy normal duties and could manage with difficulty.
150 About two months later, whilst lifting a wall oven which he was moving from a locker to another position, the plaintiff twisted his back and felt it click in the low back region and he was immediately conscious of generalised numbness in the left lower limb. This abated over the next twenty minutes and was replaced by severe generalised pain in the left buttock, thigh and calf, with some numbness in the foot and a flare-up of his already existing low back pain.
151 From that time onwards, the plaintiff had always been conscious of low back pain and left-sided sciatica, fluctuating in intensity but never settling. He was initially away from work for ten days after the second incident.
152 The plaintiff then remained on light duties for about seven months but found it difficult to manage. An attempt was made to put the plaintiff onto normal duties, which he could not do, and therefore he changed his occupation.
153 After several jobs, the plaintiff eventually found work manufacturing and installing shower screens and wardrobe doors. He managed that work most of the time, losing an occasional day due to flare-up and, because of the much lighter nature of the work, he has managed to do it until the present time.
154 The plaintiff’s main worry continues to be constant nagging low back pain, always present, fluctuating in intensity, usually of a mild degree on average if he takes things quietly but with moderately severe flare-ups two or three times a week brought on by exertion. The pain can last for a few hours.
155 The plaintiff also complained of persisting nagging ache in the left buttock and thigh and intermittently in the left calf, with some mild numbness over the outer border of the left foot.
156 On examination, there was mild but definite limitation of low back movements by some spasm and pain – approximately three quarters of the normal range of all movements was present.
157 Straight leg raising to the right was 80 degrees and to the left, 70 degrees. There was slightly diminished sensation to light touch over the outer border of the left foot and a mildly reduced left ankle jerk.
158 Mr King concluded it was reasonable to assume that on the first date the plaintiff sustained an acute injury to one or more of his lumbar discs and associated ligamentous structures, the most likely level of injury being L5-S1 in view of the subsequent CT findings.
159 Mr King noted the CT scan of the lumbar spine taken on 14 August 2008 which showed moderate narrowing of the lumbosacral disc with a mild generalised disc bulge at that level. There were also mild spondylitic changes at other levels; otherwise no significant abnormality was noted.
160 Mr King thought that although the plaintiff’s pain improved after the first incident, he presumably suffered further damage to an already damaged lumbar disc and structures and such soft tissue injuries in the second incident which would adequately explain the persistence of chronic lumbosacral back pain and some mild but definite left-sided sciatica ever since then.
161 Mr King’s overall impression was the plaintiff was a genuine, well-motivated man, who was never able to return to unrestricted heavy manual work as a building carpenter but had found suitable lighter work.
162 Mr King thought the plaintiff was chronically disabled to a moderately severe degree by persistent low back pain and, to a lesser extent, by mild left-sided sciatica as a result of the two injuries. He thought the plaintiff’s condition had stabilised and that he could manage his present light duty job and be able to continue with that work for the foreseeable future. However, he considered the plaintiff appeared to be permanently unfit to return to unrestricted heavy carpentry duties on site as he was doing pre injury.
163 Mr King thought there was no evidence of any functional overlay present that he could detect.
164 Mr Peter Kudelka, orthopaedic surgeon, examined the plaintiff on 23 September 2010.
165 The plaintiff told him he was well until the first incident, when he injured his back. The plaintiff’s back pain later recurred and his employer allegedly refused to offer light duties and his employment was terminated in March 2004.
166 The plaintiff told Mr Kudelka that he still had back pain, which varied with bending and lifting. The plaintiff attended Dr Georgy, who had prescribed Valium when there was an exacerbation of back pain and stiffness a month ago. The plaintiff had also seen a chiropractor for years who occasionally adjusted his back.
167 Mr Kudelka noted the plaintiff, sensibly, had carried out a self-management exercise program with stretching, with which he managed his persistent back pain and leg aching.
168 The plaintiff told Mr Kudelka he had to give up his recreational pursuits of motorcycling, snowboarding, skiing, playing cricket and golf, where he has a handicap of between 12 and 15.
169 On examination, the plaintiff indicated the lower lumbar region as the site of his pain. The plaintiff carried out an almost normal range of movement very slowly and hesitantly, particularly extension from a flexed position. Straight leg raising was to 50 degrees on either side. Reflexes were brisk and equal, motor power was clinically normal and calf circumferences were equal.
170 Mr Kudelka thought the findings on the April 2008 CT scan of a central disc protrusion at L5-S1 was responsible for the plaintiff’s ongoing symptoms.
171 Mr Kudelka diagnosed a moderate degree of back pain, stiffness and weakness associated with degenerative changes in the lumbosacral disc. He thought those symptoms related to a significant aggravation of a mechanical nature to the plaintiff’s lower back on the first date, from which symptoms had not completely resolved.
172 Mr Kudelka thought the plaintiff had a limited present and future capacity for work as a carpenter, as stooping, lifting, squatting, bending, kneeling, climbing and descending ladders carrying heavy weights, and prolonged sitting and standing were all restricted. However, Mr Kudelka noted the plaintiff appeared to have made a sensible adjustment to his chronic impairment and that he was doing part time work as a carpenter, working for his uncle on light duties.
173 Mr Kudelka thought the prognosis was that the plaintiff’s impairment was unlikely to significantly change in future years and he would only require limited activity, self-managed exercises and occasional analgesics. He suggested a weight reducing diet would also be helpful.
174 Mr Kudelka agreed with Mr King and Mr Han, that surgery was not warranted.
Investigations
175 A CT scan of the lumbosacral spine was carried out on 31 October 2003 at Dr Bloom’s request. It was concluded there was a large left-sided L5-S1 disc herniation with involvement of the left S1 nerve root.
176 A CT scan of the lumbosacral spine was carried out at Dr Georgy’s request on 14 August 2008. It was noted there was a central disc prolapse at L5-S1 which was not involving the canal or nerve roots. There was no foraminal narrowing present and no other abnormality was present.
The Defendants’ Medical Evidence
177 The defendants arranged for the plaintiff to be examined by orthopaedic surgeon, Mr Michael Dooley, on 30 September 2009.
178 The plaintiff told Mr Dooley of the first incident, and the second incident two months later. The plaintiff advised that after these incidents, he was struggling with full time work and subsequently he was dismissed.
179 The plaintiff complained of ongoing intermittent low back pain and buttock pain, and pain radiating from his buttock to the calf. At times he noted paresthesia of his left foot. The plaintiff told Mr Dooley that walking helped and he was able to play golf. Prior to the incident, the plaintiff used to ride a bicycle up to one hundred kilometres a week.
180 The plaintiff told Mr Dooley he tried to avoid analgesic medication, but occasionally took Valium. If his back was bad, he tended to use an icepack and lie down.
181 The plaintiff told Mr Dooley he suffered from intermittent low back pain in the past and also that he had had an injury while snowboarding, when he turned and suddenly noted significant low back pain.
182 On physical examination, there was no deformity of the lumbar spine. There was evidence of mild tenderness in the midline. Flexion was to 80 degrees and extension to 20 degrees. Lateral flexion to the left and to the right was to 25 degrees, as was left and right rotation.
183 Straight leg raising on both sides was to 80 degrees. Power, tone and sensation were intact in the lower limbs and the reflexes were symmetrically reduced. There was evidence of wasting of the left leg of two centimetres when compared to the right.
184 Mr Dooley noted the August 2008 CT scan, which showed narrowing of the lumbosacral disc level with bulging of the disc towards the left side. He also noted in other documentation that in October 2003, there was evidence of a large left-sided lumbosacral disc prolapse.
185 In Mr Dooley’s view, the plaintiff suffered from degenerative disc disease of the lumbar spine, affecting mainly the lumbosacral area. In the first incident, the plaintiff aggravated underlying disc degenerative disease. After snowboarding, the plaintiff noted low back pain.
186 Mr Dooley noted Dr Bloom’s findings of radiculopathy after the snowboarding, which indicated to Mr Dooley that the prolapse occurred at this time.
187 Dr Bloom noted significant improvement by the end of August 2003 and as far as Mr Dooley could tell, the plaintiff’s leg pain had either substantially improved or resolved.
188 The second incident then occurred, after which there was low back pain and some left lower leg pain, but no neurological signs.
189 Mr Dooley considered the second incident, therefore, aggravated underlying degenerative disc disease and the already present lumbosacral disc prolapse, which had occurred as part of the natural evolution of underlying degenerative disease when the plaintiff turned while snowboarding.
190 Mr Dooley commented:
“As happens with the majority of lumbar disc prolapse, the sciatic pain usually improves substantially over a six to eight week period but patients would still note intermittent leg pain … .”
191 Mr Dooley suggested appropriate treatment was for the plaintiff to remain generally active and improve his fitness. Mr Dooley thought the August 2008 CT scan showed essentially the disc prolapse had resolved and the bulging disc was part of a degenerating disc.
192 Mr Dooley considered that the plaintiff did not require formal conservative treatment and that there was no indication to consider operative intervention. Mr Dooley thought that the only indication to do so would be severe persistent sciatic pain associated with the presence of a definite disc prolapse.
193 Mr Dooley considered the plaintiff would continue to note intermittent low back pain and left lower limb pain. He thought the symptoms would remain under control if the plaintiff remained active. Mr Dooley did not think the plaintiff would be able to carry out regular heavy physical work, nor be able to engage in active impact sport. He thought that the plaintiff would have some difficulty with regular heavy household chores, but overall he would be able to carry out a wide range of domestic activities.
194 The defendants tendered a letter from Mr Han to Dr Georgy relating to the examination on 18 May 2009. This report is in very similar terms to the report of that examination relied upon by the plaintiff.
Warnings and Letter of Termination
195 On 17 March 2003, the first defendant wrote to the plaintiff, referring to previous discussions regarding numerous absent days, and as that had not improved, a written warning was issued.
196 The plaintiff was advised management would be monitoring his performance, and if there was no improvement, they would have no other choice but to issue a final warning.
197 A final written warning was sent to the plaintiff on 25 March 2003. The plaintiff was advised that failure to comply with that final written warning would result in the termination of his employment.
198 On 16 April 2004, the first defendant wrote to the plaintiff, advising that due to the current drop in workload, it regretted having to inform him that his employment had been made redundant as from that date.
Video Surveillance
199 The defendants tendered video surveillance of the plaintiff playing golf at Drouin on 5 December 2009.
200 At 11.03 am, the plaintiff was shown getting his golf bag out of the back of the tray of his utility without any difficulty. He then put on his golf shoes, resting his feet on the tailgate of the ute.
201 The plaintiff was shown teeing off at the 19th hole at 11.16 am. He displayed a natural swing when hitting the ball and did not appear to be in any difficulty with his back.
202 During the game, the plaintiff rested on his club when looking at his putt, teeing up and picking up the ball.
203 At 2.52 pm, the plaintiff was shown looking for a ball in some grass. At that time, he may have been limping or simply kicking the grass with his feet to try to locate the ball. In any event, whatever he was then doing, the plaintiff did not continue to walk in a limping manner. He was not limping at the end of the round of golf at 3.49 pm.
204 At 3.54 pm, the plaintiff was shown with his feet on the tailgate, removing his golf shoes. He then placed his bag and buggy in the rear of the ute without difficulty.
205 The plaintiff was not shown on video to make any particular use of the rollbar to assist him in getting his clubs and buggy out of or into the rear of the ute.
Overview
206 Whilst the plaintiff had some sciatic problems in 2000, he was not having ongoing treatment and was able to work full time without difficulty as at 2003.
207 I accept the plaintiff suffered a compensable injury to his lower back in the first and second incidents. Such injury has been diagnosed as an aggravation of degenerative disc disease at the L5-S1 level.
208 The slightly different description of the second incident in the Injury Register is not of any particular significance.
209 Whilst there was some argument as to the contribution made by a snowboarding “accident” in July 2003 and no reference by Dr Bloom to the second incident, I accept that the first and/or second incident has continued to materially contribute to the plaintiff’s back condition.
210 Having noted the first incident, which Mr Dooley thought aggravated underlying disc degenerative disease in the plaintiff’s lumbar spine and attributing radiculopathy to the snowboarding accident based on Dr Bloom’s history, Mr Dooley accepted there was a further aggravation of the plaintiff’s back condition in the second incident.
211 Counsel for the plaintiff submitted there was a compensable injury in this case. He relied upon the decision of Ashley JA in Grech v Orica Australia Pty Ltd (2006) 14 VR 602 where, at paragraph 58, Ashley JA said that a consequence may have a multiplicity of causes, including a multiplicity of compensable injuries.
212 In the present case, provided that the plaintiff establishes that the subject compensable injuries in 2003 materially contribute to the plaintiff’s impairment and its consequences, and continue to do so permanently, then the role of the other injuries, namely, any injury suffered snowboarding, does not preclude a court concluding that there is an appropriate causal link between the compensable injury on the one hand, and consequences relied upon on the other.
213 The question for consideration in this case is whether the consequences to the plaintiff of his lower back injury suffered in 2003 are serious and permanent.
Consequences
214 The plaintiff was certified fit for full time normal duties by Dr Bloom in March 2004 and returned to such duties until he was retrenched the following month.
215 There is little detail in the plaintiff’s affidavit as to any particular difficulties experienced by him on his return to full time duties for that month.
216 Then, after having been retrenched, the plaintiff worked as a sub-contractor, until obtaining employment with Warragul Screens in late 2005.
217 There is also a lack of evidence as to the amount and type of work the plaintiff performed during this period, and also as to his earnings.
218 The plaintiff simply deposed to trying to do some building work but not being able to because of his leg and back. In cross-examination, he said he tried to subcontract. He worked on decks, kitchens, cupboards and doors. It proved too hard because of his injury. He tried to get back into building, but he could not.
219 The plaintiff said that between the time he was retrenched and when he started work at Warragul Screens, he lived on the money received during that time. He did not put in a taxation return and did not claim Centrelink benefits.
220 Although there is not a claim for loss of earning capacity, there is no evidence that the plaintiff was earning significant amounts as a home builder/carpenter prior to the incidents, nor is there much evidence of the particular type of work he was doing at that time.
221 Further, there is no medical evidence, save for Dr Bloom’s view to the contrary, that the plaintiff was unfit for work during this period or at any subsequent time.
222 Consistent with Dr Bloom’s comments that the plaintiff had recovered and was certified fit for work in March 2004, the plaintiff did not undergo any further medical treatment until seeing Dr Georgy, when he had a flare-up of his back symptoms in 2008.
223 I do not accept that the plaintiff did not have treatment or medication during this time because he could not afford it. I accept, consistent with Dr Bloom’s opinion, that the plaintiff did not require either attendances with the general practitioner or medication during that time.
224 Whilst I accept that the plaintiff can no longer do unrestricted heavy work, his current work is not particularly light. The job is still ‘hands on’, involving cutting out and manufacturing doors, although his work station has been adjusted to cope with the plaintiff’s restrictions.
225 In addition to this manual work, the plaintiff is also required to drive around the Gippsland area, attend houses and install the doors, which he transports in his Hi Ace van.
226 The plaintiff has had his current job for nearly five years. There was no evidence that such employment is at risk.
227 The plaintiff agreed, in cross-examination, that his work fits in well with his life in the Gippsland area, where he enjoys golf on his days off, playing at a relatively high level.
228 I do not accept this is a case where the plaintiff is a stoic man who is in constant pain and battles on, being prepared to endure pain in order to maintain a desired level of function, as described by Maxwell P in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69, at paragraph 13.
229 The plaintiff in this case has a moderate level of pain and restriction, and at times flare-ups, which restrict his enjoyment of life.
230 There is no evidence of the plaintiff requiring significant time off work in recent years in relation to his back injury. He takes Wednesdays off and plays 18 holes of golf; he does not sit at home and rest.
231 The last time the plaintiff took any prescription medication was when he was prescribed Diazepam in 2008 and he “still has the same packet”. Although the plaintiff said that medication in the past made his “guts crook”, medication did help him and he has not seen the need for even over-the-counter medication in the last couple of years.
232 There is no suggestion in any of the limited treating doctor’s material that the plaintiff has any particular problem with sleep or that he has been prescribed sleeping medication to help him sleep because of his back problems.
233 The significance of what has been lost as a result of injury may be informed to an extent by what is retained: see Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 and Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181.
234 As well as working full time since December 2005, the plaintiff has increased his participation in golf since the incident, playing competitively since 2006 at a relatively high level with a handicap of 14.
235 There was nothing demonstrated on the video to show any particular restriction in terms of playing golf, either in terms of the plaintiff’s swing, walking the course, picking up the ball or teeing off. What was said by the plaintiff to be adjustments made because of his injury, such as leaning on his putter or putting his foot on the tailgate, are things that a normal golfer, without a back injury, would do when engaged in these activities.
236 Whilst the plaintiff may have been shown limping briefly, he did not continue to do so after he had retrieved his ball from the grass, and he then kept playing for almost another hour.
237 I do not consider the inability to recreationally cycle and to snowboard a few times a season are serious consequences for a thirty seven year old man. Further, because of this weekly involvement in golf, the plaintiff would not have had the opportunity to play cricket had he desired to do so.
238 Whilst I accept that the plaintiff has some pain and restriction as a result of his back injury, I am not satisfied that the consequences thereof meet the test of “serious” under the Act.
239 Accordingly, the plaintiff’s claim is dismissed.
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