Coutts v Stawell Goldmines Pty Ltd
[2018] VCC 474
•15 March 2018 (in Melbourne)
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-03888
| EUGENE ANTHONY COUTTS | Plaintiff |
| v | |
| STAWELL GOLDMINES PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
---
JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 18 and 21 August 2017 (in Ballarat) Written submissions to be served and filed by the first defendant no later than the close of business on 28 August 2017; written submissions to be served and filed by the plaintiff no later than the close of business on 30 August 2017 Parties speaking to submissions on 31 August 2017 (in Melbourne) | |
DATE OF JUDGMENT: | 15 March 2018 (in Melbourne) | |
CASE MAY BE CITED AS: | Coutts v Stawell Goldmines Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 474 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – paragraph (a) of the definition of “serious injury” – back injury – leave sought to bring common law proceedings for “pain and suffering damages” and “pecuniary loss damages” – issues as to the nature and the extent of any compensable injury and what injury gives rise to any impairment suffered by the plaintiff
Legislation Cited: Accident Compensation Act 1985 (as amended); Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Acir v Frosster Pty Ltd [2009] VSC 454; Hunter v Transport Accident Commission [2005] VSCA 1; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; Pilkington v Transport Accident Commission [2017] VCC 572; Altona Bus Lines v Lococo [2002] VSCA 159; Dalton v Dandenong Scaffolding Hire Co Pty Ltd [2003] VSCA 183; Grech v Orica Australia Pty Ltd (2016) 14 VR 602; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511; Buchanan & Brock Pty Ltd v Harris [1957] VR 549 at 550; Yirga-Denbu v Victorian WorkCover Authority Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35
Judgment: Pursuant to s134AB(16)(b) Accident Compensation Act leave is granted to the plaintiff to bring proceedings for pain and suffering damages and pecuniary loss damages on the basis of compensable injury suffered on or about 20 December 2010.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Seccull QC with Mr A Dimsey | Saines & Partners Pty Ltd |
| For the Defendants | Mr P Scanlon QC with Ms F Ryan | IDP Lawyers Pty Ltd |
HIS HONOUR:
Introduction
1 By way of Originating Motion filed on 18 August 2016,[1] Mr Eugene Anthony Coutts (“the plaintiff”) seeks leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”), to bring common law proceedings for a low-back injury suffered by him during the course of his employment with Stawell Goldmines Pty Ltd (trading as Stawell Gold) (“the defendant”) on or about 20 December 2010 (“the injury”).
[1]The Originating Motion was issued against Stawell Goldmines Pty Ltd – the first defendant – and the Victorian WorkCover Authority – the second defendant. For practical purposes, I shall refer to Stawell Goldmines being the defendant
2 The plaintiff seeks leave to bring proceedings in relation to the injury for “pain and suffering damages” and “pecuniary loss damages” within the meaning of s134AB(37) of the Act.
3 The plaintiff and a former treating general practitioner of the plaintiff, Dr Nyan Win, gave evidence and were cross-examined. Both parties tendered a large number of documents.[2]
[2]See Annexure “A”
Relevant legal principles
4 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[3]
[3]See s134AB(19)(a) of the Act
5 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Act. This paragraph reads:
“‘Serious injury’ means –
(a) permanent serious impairment or loss of a body function; ... .”
6 The part of the body said to be impaired for the purposes of paragraph (a) is the low back of the plaintiff.
7 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a)The “injury” suffered by him arose out of or in the course of, or due to the nature of, his employment with the defendant on or after 20 October 1999;[4]
(b)The “injury” and the resulting impairment under paragraph (a) must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[5]
(c)The “consequences” to the plaintiff of the injury in relation to “pain and suffering” and “pecuniary loss” must be “serious” – that is:
“… when judged by comparison with other cases in the range of possible impairments …as the case may be … [can be], fairly described as being more than significant or marked, and as being at least very considerable.”[6]
[4]See s134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
[5]See Barwon Spinners Pty Ltd & Ors v Podolak (op cit) at paragraph [33]
[6]See s134AB(38)(b) and (c) of the Act
8 Section 134AB(38)(b) of the Act provides that the consequences of an injury and impairment in terms of “pain and suffering” and “loss of earning capacity” are to be considered separately. In the event that a worker suffers sub-paragraph (i) but not sub-paragraph (ii) of s134AB(38)(b) of the Act, the worker is entitled to have leave to bring proceedings for the recovery of “pain and suffering damages” only. A worker who satisfies the loss of earning capacity requirements of s134AB is entitled, as a “matter of statutory construction” to have leave to bring proceedings for “pain and suffering damages” and “pecuniary loss damages”.[7]
[7]See Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 at paragraphs [60]-[64]
9 In addition, in relation to “loss of earning capacity consequences”, the plaintiff has a specific burden[8] to establish:
[8]See s134AB(19)(b) and (38)(e) of the Act
(a) generally, that as at the date of hearing, he or she has a loss of earning capacity of 40 per cent or more measured as set out in paragraph (f) of s134AB(38) of the Act.[9] However, in the circumstances of this matter, the plaintiff was under the age of twenty-six as at the date of the alleged injury, and such requirement is not necessary for that class of plaintiff. However:
(b) after the date of the hearing, he has to establish he will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.
[9]See s134AB(38)(e)(i) of the Act
10 In determining the application, the Court:
(a)must not take into account psychological or psychiatric consequences of the back injury for the purposes of paragraph (a) of the definition of “serious injury”;
(b)must make the assessment of “serious injury” at the time the application is heard;[10]
(c)must give reasons that disclose the pathway of reasoning in dealing with the evidence, and the issues raised by the application.[11]
[10]See s134AB(38)(h) of the Act
[11]See Hunter v Transport Accident Commission [2005] VSCA 1 at paragraphs [33]-[36]
The issues
11 Those acting for the plaintiff contend that the “injury” suffered by the plaintiff on or about 20 December 2010 ultimately involved damage to the L4/L5 disc and L5-S1 disc resulting in the need for lower back surgery. Those acting for the defendant contend that although there was an incident of injury on or about 20 December 2010, any such injury was limited to the L4-5 disc and any damage to the L5-S1 disc occurred by way of subsequent events which were not work related. Leave was given to the plaintiff on 18 August 2017 to amend the particulars of injury to now read, in part:
“The Plaintiff’s Particulars of Injury are as follows:-
(a)Injury to the back, including the production, recurrence, aggravation, acceleration, exacerbation and/or the further deterioration of discal injury at L4/5 and L5/S1 and degenerative changes in the lumbar spine; … .”[12]
[12]See “Amended Particulars of Injury” at page 6 Plaintiff’s Court Book (“PCB”)
The evidence of the Plaintiff
12 The plaintiff relies on his affidavits sworn on 8 April 2016 (“the first affidavit”),[13] 25 January 2017 (“the second affidavit”),[14] and on 5 July 2017 (“the third affidavit”).[15]
[13]See pages 8 to 15 PCB
[14]See pages 16 to 18 PCB
[15]See pages 18a-18c PCB
13 During his evidence-in-chief, the plaintiff swore that the contents of each of those affidavits were “true and correct” at the time of swearing such documents.
14 The plaintiff was taken to paragraph 9 of the third affidavit and, in particular, to the part of the paragraph which states:
“ … I don’t currently have a GP as Dr Win left his clinic last year and I’ve been unable to find another general practitioner. I’ve tried three doctors already but each has indicated that they don’t take WorkCover patients.”[16]
[16]See page 18c PCB
When queried as to whether he has been able to get a general practitioner, the plaintiff responded “Not as yet, no”:[17]
[17]Transcript (“T”), 37 Line (“L”) 1
The following evidence was then given:
Q: “And in terms of symptomatic treatment, or treatment for your symptoms, where are you getting that from at the moment?---
A: I’ve been to a myotherapist, I’ve been to a chiropractor and a masseuse, like a remedial massage to just help with symptoms.
… .”
HIS HONOUR:
Q: “Do you take any – do you actually take medication at all?---
A: I try not to but at times I’m forced to, yes.
Q: I think I read in the affidavit’s you don’t like taking medication. Is that based on a general attitude to taking medication?---
A: Yeah, I’ve never been one to take drugs anyway, and just so I know they’re just not good for you and I like to save them for when I truly need them, if that makes sense.
Q: Yes?---
A: So - - -
Q: And when you truly need them, what sort of drugs do you take?---
A: I’ve tried a lot of them.
Q: Well perhaps from currently, now?---
A: Currently, I have Norspan at my disposal; Targin and I have some left over Endone as well.”[18]
[18]T37, L3-22
15 By way of his first affidavit, the plaintiff gave evidence that he is a thirty-year-old[19] single man who left school at the end of Year 11. He qualified as a diesel mechanic and also holds a Certificate IV in Fitness as well as forklift and dogman tickets.
[19]Born November 1987
16 Since leaving school the plaintiff worked as a mechanic in the automotive and mining industries, but at the time of swearing his first affidavit was working as a personal trainer.
17 The plaintiff was employed by the defendant (which at that time ran a Gold Mine near Stawell) as an Underground Breakdown Fitter (“UBF”) on the basis that he would work four days “on”, followed by four days “off”. He comments that he earned a “very good wage”.
18 In paragraphs 6 and 7 of the first affidavit, he describes his general duties and, in particular, the circumstances of the incident of injury on 20 December 2010:
“6.My normal duties as a UBF included replacing faulty/damaged components and servicing all kinds of components in underground mining machinery. I generally worked underground. The work required a lot of heavy lifting, repeated and frequent bending and twisting of the spine, and often working in awkward or confined spaces including underneath equipment and machinery. I frequently climbed onto, and jumped off, machinery. There was pressure to work quickly. I frequently drove underground, over rough and uneven surfaces, jolting and jarring my back. My work was physically demanding and required the full and free use of my back.
7.On 20 December 2010, I removed a very large tyre (“the tyre”) from an underground vehicle called a ‘buggy’, before placing the tyre in a ute and driving it to the surface. I then took the tyre off the ute and as I bent down to stand it up I felt sharp pain in my lower back. I estimate the tyre weighed at least 80 kilograms and had a diameter of at least one and a half metres … .”[20]
[20]See exhibit 1 at page 9 PCB
19 The plaintiff reported the incident the day after, before commencing his four days off. On his return to work he requested from the occupational health and safety officer some time off work as his back was still painful, with such request being denied. He continued to work in his normal duties and experienced flare-ups of back pain, and over approximately six months his back deteriorated. He recalls that over this period he was once working on a turbo charger and the bar he was using on the turbo charger slipped, causing him to jar his back.
20 After those six months the plaintiff was placed on “modified duties” in the work shed on the surface of the mine, doing “rebuilds”, which was a “less physically demanding job”, but he continued to have problems with his back.
21 In early 2013, the plaintiff’s request for redundancy was accepted and he stopped working at the mine, after which he was employed as follows:
(a)In mid-2013, he obtained work as a 4WD mechanic at Wimmera Diesel, starting on one day a week. He comments that his boss was aware of his back problems and was “very good to me”, saying that he wanted the plaintiff to work up to full-time hours by late 2013. The plaintiff was able to increase his hours as hoped for, but continued to have issues with his back as the work required frequent and continuous bending and twisting, as well as some lifting;
(b)By mid-2015, because of further deterioration in his back, the plaintiff decided to make a “career change”. He ceased working at Wimmera Diesel and completed the Certificate IV in Fitness. At the time of the first affidavit he notes that he had recently started work as a personal trainer, subcontracting to “Anytime Fitness Horsham” conducting around thirteen half-hour sessions a week, and earning a gross of between $25 and $30 a session.
22 The plaintiff gave evidence that not only has he suffered some impairment or loss of back function, but the back injury has also affected his mental state. He also records that WorkCover had paid for some treatment, made weekly payments of compensation for a period of time, together with a lump sum of $11,836.00, being a no-fault lump sum compensation, (presumably under s98C of the Accident Compensation Act 1985).
23 The plaintiff describes that he has undergone treatment for his back injury, including physiotherapy, hydrotherapy, gym exercises, chiropractic treatment, dry needling and massages, various attendances at the Metro Pain Clinic, painkillers and anti-inflammatory medication.
24 The plaintiff also gave evidence that he has received psychological and psychiatric treatment for which he has paid for himself. He describes his present treatment (that is, at the time of the first affidavit) of comprising of consulting with the general practitioner, Dr Win, at Lister House Clinic, about every month. He receives medical certificates certifying fitness for modified duties and also is prescribed the wearing of Norspan, 5-microgram patches, the plaintiff noting that other medications did not seem to work.
25 He also gives evidence that he needs and wants to have regular physiotherapy treatment due to his ongoing back pain and restrictions, which continue to affect him. He describes that he suffers ongoing lower back pain which is constant, and varies from 3 out of 10 to 10 out of 10.
26 Activities and conditions that affect the level of pain include sitting or standing in the one position for long periods, prolonged walking (especially over rough or uneven surfaces), running, bending or twisting the spine, repeated or heavy lifting and exposure of the back to jolting, jarring, vibration or the cold. He describes how he has suffered many bouts of back pain since the incident of injury, including from non-work-related activities such as gym work.
27 Prior to the incident of injury on 20 December 2010, the plaintiff describes himself as leading an “active and satisfying lifestyle” and also enjoyed working in his chosen trade as a mechanic, as he loved working with mechanical things and in the mining industry. Working in the mine for the defendant gave him a “very good wage”, which permitted him some financial freedom, and he also enjoyed the four days “off” and four days “on” arrangement.
28 Furthermore, he enjoyed many activities away from work, including martial arts and jujitsu, and also enjoyed driving motocross bikes and mountain bikes, and also enjoyed off-road four-wheel driving.
29 In particular, at paragraph 18, of his first affidavit, the plaintiff describes the impact of the back injury on his life. He states:
“The back injury continues to make a major impact on my life. It prevents me from ever returning to the UBF work I performed at the mine. The back injury eventually forced me to leave the mining industry and later, to leave my chosen trade as a Mechanic. The back injury continues to affect my ability to work as a Personal Trainer. Although I look very fit, the back injury limits or prevents me from performing some exercises and hinders my work as a Personal Trainer. I have to be very careful with what I do at the gym and I am still significantly limited with what I can lift. I believe the back injury has permanently narrowed the sort of work that I can do. Given my employment background (especially my work at the mine), I believe my ability to earn wages has been permanently and substantially reduced. Further, I believe that my ability to obtain and retain any future employment is now substantially compromised as a result of my back injuries. If not for my injuries, I believe that I would have continued to work in the same or similar position as I had with Stawell Gold Mines before my injuries, or at least in my chosen career as a diesel mechanic. Now however, my ability to return to any form of mechanical or labouring type work is wrecked, due to my injuries. Prior to my injuries, I was earning not less than approximately $2,500.00 gross per week or $1,770.00 nett per week. I have therefore suffered a loss of earnings since I ceased work with Stawell Gold Mines in early 2013 of at least $2,500.00 gross per week less any income I received by way of workcover weekly payments, and from my employment at Wimmera Diesel and now as a personal trainer. I am now earning approximately $400.00 gross per week and accordingly I am currently suffering a loss of earnings of not less than approximately $2,100.00 gross per week taking into account increases in earnings which I would have received since my injuries in December 2010, if I had not been injured and continued to work in that same capacity. I believe that I will continue to suffer a loss of earning capacity into the future of at least approximately $2,200.00 gross per week … .”[21]
(sic)
[21]See exhibit 1 at pages 13 to 14 PCB
30 The plaintiff also describes how his back injury affects his ability to perform martial arts, jujitsu, ride motorbikes and engage in four-wheel driving. In particular, he describes how he gets frustrated about the limitations caused by his back and tends to try and avoid some activities that he believes will give him significant flare-ups of back pain, for example, certain gardening tasks such as digging.
31 The plaintiff’s back injury has also affected personal relationships, including his ability to engage in sexual relations, and that he feels his temperament has changed, having become more emotional, as he feels that no one understands his back problem. He notes that he looks very fit and people do not believe that his back is causing the issues that it does. His memory has been poor since the back injury, and he has lost confidence and self-esteem since the back injury.
32 The plaintiff also describes how his back injury continues to disturb his sleep, with back pain often waking him and keeping him awake. He notes that he rarely feels rested in the mornings and generally feels tired.
33 Prior to the incident of injury on 20 December 2010, the plaintiff had not experienced similar back problems and, indeed, had undergone a pre-employment medical examination with the defendant before commencing work at the mine.
34 By way of his second affidavit, the plaintiff gives evidence that in May 2016 he had a “huge flare up of symptoms of back pain after doing exercises at the gym which I was recommended by my physiotherapist, Mr Andrew Locke, to increase my core strength.”[22] In particular, the plaintiff describes such pain to be in his lower back and also into his legs. The plaintiff was initially referred to the orthopaedic surgeon, Mr De la Harpe (on the recommendation of the physiotherapist), but the plaintiff did not like him and a referral was given to attend the neurosurgeon, Mr Chan, who initially saw the plaintiff in August 2016.
[22]See exhibit 1 at page 16 PCB
35 Mr Chan recommended surgery and on 15 September 2016, the plaintiff underwent an L5-S1 microdiscectomy followed by rehabilitation, including physiotherapy and exercises.
36 The plaintiff notes that the surgery appears to have improved his leg pain but the back pain persists as before, and the level of such back pain that he now experiences is “pretty much as described in my earlier affidavit.”[23]
[23]See exhibit 1 at page 17 PCB
37 The plaintiff describes how he was unable to perform his work as a personal trainer after the surgery, and only recommenced in December 2016, and at the time of swearing his second affidavit was only able to see four to five clients per day. He estimates that his earnings for that financial year to be in the order of $12,000. The plaintiff confirmed that his ongoing symptoms from his lower back injury impact on his recreational, social and work activities. Furthermore, he notes that he feels “embarrassed by my injury at times and it has got me down.”[24] This, in turn, has had an impact on his relationship with his girlfriend because of sexual activity being difficult and his inability to go out and socialise because of his mood.
[24]See exhibit 1 at page 18 PCB
38 The plaintiff describes commencing new, part-time, casual employment as a retail assistant at a clothing shop on 23 December 2016. At the time of swearing his affidavit he was performing one to two shifts per week of approximately three hours’ duration per shift. He comments that notwithstanding the light nature of the work and small number of hours, he still finds that his back gets quite stiff and sore standing even for a few hours while serving customers and attending to retail sales.
39 Because of ongoing increasing back pain and nerve pain radiating to his legs, the plaintiff again attended his neurosurgeon, Mr Chan, on 9 January 2017 and he requested for him to undergo a further MRI scan to investigate the pain further.
40 By way of his third affidavit, the plaintiff confirms his part-time casual employment at Edge Clothing in Horsham, which he commenced on 23 December 2016, such work being in addition to any work he performs as a personal trainer. At the clothing store, he does not have fixed hours, but has a regular shift on Wednesday from 1.00pm to 4.00pm and less regular shifts on weekends. He has earned about $70 for his Wednesday shift and a maximum of $400 per week in the week before Christmas, when there was a lot of work. The shop sells men’s and women’s clothing and his employment involves serving customers and keeping the shop neat and organised. Although the work is light and does not involve any heavy lifting or significant bending, he has to be on his feet for a long period of time and he finds that his back gets very stiff and sore.
41 The plaintiff describes his ongoing work as a personal trainer, which involves about thirty sessions of thirty minutes each over any particular week. His rate varies from $25 to $30 per session, and his gross earnings before modest business expenses are approximately $700 to $800 per week, although this can vary significantly on a week-to-week basis. He notes that such work “slightly increases my symptoms of back pain”.[25]
[25]See exhibit 1 at page 18b PCB
42 The plaintiff notes that he last saw his surgeon, Mr Chan, on 6 February 2017, at which time the latest MRI scan was available, which revealed that his L5-S1 disc had “re-herniated”. At that time, Mr Chan recommended a cortisone injection to reduce the size of the herniation, and this was undertaken on 7 April 2017, but did not reduce the pain in his back at all. The plaintiff reports that his sciatica was reduced for a few days, but the pain returned and, if anything, felt stronger after that. He is planning to return to Olympic Park Clinic or the Pain Clinic in Richmond to consider further treatment options when he gets the chance.
The medical treatment of the Plaintiff
43 I consider that the cross-examination will have a clearer context if I set out the relevant medical evidence relied on by the parties. Initially, I refer to the various radiological studies undertaken by the plaintiff:
(a)Dr C Gong of the Stawell Medical Centre arranged for the plaintiff to undergo a plain x-ray of his lumbar spine on 11 July 2011. The radiologist, Dr C Trotman, reported:
“There is a minor tilt of the upper lumbar spine to the right side. There is minor loss of disc height at L4/5 and L5/S1 but there is no bone destruction and no spondylolisthesis. The sacroiliac joints appear normal.”[26]
[26]See exhibit 6 at page 68 PCB
(b)Dr K Maclean, also of the Stawell Medical Centre, arranged for the plaintiff to undergo an MRI scan of his thoracolumbar spine on 12 October 2011. The radiologist, Professor A Pitman, reported as follows:
“Findings:
Thoracic spine: …
Lumbar spine: The lumbar spine canal is slightly shorter than average because of short anatomic pedicles. Alignment is normal. There are five lumbar vertebral bodies. L5/S1 and L4/5 have lost height and signal. The other discs are of normal MRI appearance.
At L5/S1, a right paracentral very broadbased disc bulge is present which does not impinge on any neural structures … It narrows the right L5/S1 neural exit foramen, but the exiting right L5 nerve root is not compressed. The transiting S1 nerve roots are not affected. The left neural exit foramen and spinal canal are of good calibre.
At L4/5, a central and right paracentral posterior disc protrusion is likely to be recent. It narrows the right lateral recess with its transiting right L5 nerve root, and mildly narrows the central canal. The right L4/5 neural exit foramen is of good calibre, and the right exiting L4 nerve root is not compressed.
The protrusion is approximately 15 or 16mm at base x 7mmdeep. It has a mushroom shape.
At L3/4, the pedicles are short but the appearance is otherwise normal. At L2/3, the pedicles are short but the appearance is otherwise normal. At L1/2, the appearance is normal.
Conclusion: Degenerate lower two lumbar discs. At L4/5 superimposed right paracentral and central disc protrusion which touches the transiting right L5 nerve root.”[27]
[27]See exhibit 6 at pages 69-70 PCB
(c)Dr R Martin of the Read Street Medical Clinic arranged for the plaintiff to undergo a further MRI scan of his lumbar spine which was undertaken on 8 April 2014. For reasons which are not clear, Dr R Farzan of Wimmera Radiology did not report until 5 August 2014. In that report he stated:
“Clinical notes
Multilevel disc bulges on previous MRI of 2011. L4-5 disc protrusion impinging right L5 nerve root, follow up.
Technique
…
Report
Lumbar vertebrae show normal height and alignment.
Generalised decrease in bone marrow signal intensity on both T1 and T2 weighted images is noted with no focal lesion or bony destruction.
On T1 weighted images the bone marrow signal equals the disc space but is hyperintense in relation to lumbar muscles. These findings are consistent with compression of yellow to red marrow (anaemia).
Loss of normal disc signal on T2 weighted images at L4-5 and L5-S1 level associated with disc bulges/protrusions are consistent with dis degenerative changes.
Conus and cauda equina are normal in size, configuration and signal intensity.
There is no paravertebral or intraspinal mass, collection or infiltrative process.
Mild osteoarthritic changes of L4-5 facet joints are demonstrated no (sic) expected for patient’s age. (? previous trauma).
Other facet joints and SI joints show normal appearance.
No pars interarticularis fracture is seen.
Above mentioned changes have resulted in following findings:
L1-2, L2-3, L3-4 levels
There is no compression on thecal sac or exiting nerve roots. No disc bulge or herniation is noted.
L4-5 level
There is a central broad based disc protrusion at this level with mild compression on anterior aspect of thecal sac. This protrusion measures 17mm in transverse, 5mm in AP and 7.5mm in craniocaudal diameter. There is no compression on exiting L4 or descending L5 nerve roots at this level.
L5-S1 level
Small focal disc protrusion is demonstrated in right paracentral region. This measures 7mm in transverse, 2.8cm in AP diameter. No definite compression however is seen on exiting L5 or descending S1 nerve roots.
CONCLUSION
Disc degenerative changes are demonstrated at L4-5 and L5-S1 levels with broad based central disc protrusion at L4-5 and right paracentral small focal disc bulge at L5-S1 level. No definite compression is seen on exiting or descending nerve roots however. Previous MRI is not available for comparison.
Mild osteoarthritic changes of L5-S1 facet joints noted bilaterally.
Generalised decrease in signal intensity of bone marrow on both T1 and T2 weighted images as described above is consistent with red marrow conversion ( ? anaemia).[28]
[28]See exhibit 6 at pages 71-72 PCB
(d)Dr N Win of the Lister House Clinic referred the plaintiff for a further MRI scan of the lumbar spine on 10 June 2016. The radiologist, Dr Farzan, reported as follows:
“Clinical notes
Lower back pain. History of disc prolapse.
Technique
MRI protocol …
Findings
The lumbar vertebrae show normal height and alignment along with normal marrow signal intensities. Disc degenerative changes at L4-5 and L5-S1 levels are noted as disc bulge, decreased disc height and decreased T2 signal intensity of the discs.
Moderate osteoarthritic changes of the mid and lower lumbar facet joints are demonstrated more prominently at L3-4 and L4-5 levels.
There is no pars interarticularis fracture. S1 joints show normal appearance. The conus and cauda equina show normal appearance and signal as well.
At L1 to L4-5 level the central canal, neural foraminal and lateral recesses are adequate.
At L4-5 level there is a broad-based central disc bulge mildly compressing on the anterior aspect of the thecal sac. The AP diameter of the canal centrally measures 15mm which is adequate. No neural compromise is seen at this level.
At L5-S1 level there is a right paracentral/lateral recess disc protrusion/extrusion measuring 9mm in mediolateral, 10mm in AP, and 8mm in cradiocaudal (sic) diameter. The disc comes into contact with and mildly compresses on the right descending S1 nerve root. Otherwise no neural compromise is seen at this level.
Conclusion
Moderate osteoarthritic changes of L3-4 and L4-5 facet joints bilaterally. Broad-based central disc bulge with no neural compromise at L4-5 level. A right paracentral/lateral recess disc extrusion mildly compressing on anterior aspect of right descending S1 nerve root. Otherwise no abnormality is seen.”[29]
[29]See exhibit 6 at page 74 PCB
(e)The treating neurosurgeon, Mr P Chan, arranged for the plaintiff to undergo a plain x-ray of his lumbar spine on 18 January 2017. Such x-ray was after the L5-S1 microdiscectomy undertaken on 15 September 2016.
The radiologist, Dr Farzan, reported:
“Findings
The neutral, flexion and extension lateral lumbar spine views confirm the normal alignment of lumbar vertebral body with no evidence of listhesis.
Moderate narrowing of L4/L5 disc space is demonstrated associated with endplate sclerosis.
The findings are consistent with degenerative disc disease.
Moderate hypertrophy and osteoarthritis of mid and lower interarticularis fracture.
The S1 joints showed normal appearance.
Pedicles are intact.”[30]
[30]See exhibit 6 at page 75 PCB
(f)The treating neurosurgeon, Mr Chan, arranged for the plaintiff to undergo an MRI scan of the lumbar spine on 18 January 2017. Again, the radiologist, Dr R Farzan, reported as follows:
“Clinical Notes
Previous right L5-S1 discectomy. Recurrent lower back pain radiating to both legs rose on the right.
MRI Protocol
… .
Comparative Report
L1 to L4 Levels
The lumbar vertebrae showed normal height, alignment and marrow signal intensity. Disc spaces and endplates are preserved. No disc bulge or neural compromise is seen at these levels.
L4-5 Level
There is increase in size of previously detected broadbased central and bilateral paracentral disc bulge. The protruded disc measures 14.3mm in transverse, 8mm in AP, and 12mm in craniocaudal diameter on present scan and compresses on right anterolateral aspect of thecal sac at this level. There is mild narrowing of right lateral recess with no definite compression on right descending L5 nerve root. The AP diameter of the canal centrally measures 11.9mm which is mildly narrowed. There is no compression on exiting L4 nerve roots.
L5-S1 Level
Evidence of previous surgical intervention is demonstrated as a T1 hyperintense and a post Gadolinium enhance bandlike area extending from the skin surface to the left epidural space. There is a new right paracentral/lateral recess disc protrusion with slight peripheral ring-like enhancement definitely compressing on right descending S1 in lateral recess. The extruded disc measures 11.2mm in transverse, 9.6mm in AP, and 11mm in craniocaudal diameter. There is no paravertebral or intraspinal collection. There is enhancing scarring of right epidural space at L5-S1 level.
CONCLUSION
Compared to previous study on 10.06.2016 the following findings are demonstrated:
1. Increase in size of the central/bilateral paracentral L4-5 disc bulge resulting in mild compression on the right anterolateral aspect of the thecal sac and mild narrowing of the right lateral recess with no definite compression on right descending L5 nerve root.
2. Evidence of previous surgical intervention at L5-S1 level to the right of midline. There is a new right paracentral/lateral recess disc protrusion/extrusion with definite compression on right descending S1 nerve root as described above. There is no paravertebral or intraspinal collection.”[31]
(g)On 7 April 2017 and 28 April 2017, the plaintiff, on referral from the treating neurosurgeon, Mr Chan, underwent a CT-guided nerve root CSI – initially in the lumbar spine and also at the bilateral C4-5 facet joint level.
[31]See exhibit 6 at pages 76-77 PCB
44 The plaintiff relies on the medial records of the Stawell Medical Centre situated at 26 Wimmera Street, Stawell.[32] The plaintiff initially consulted Dr Emily Gong on 11 July 2011 and the following history was obtained:
“[L]ifting heavy stuff 2 months ago. didn’t ha[v]e time [o]ff. but saw a chorio practer and made it worse. no pins an dneedles ta lower legs, no radiation of the pain.
O/E: no midline tenderness, no paraspinal tenderness, can bending forward very well, a bit tight when leaning backwards.”[33]
(sic)
[32]See exhibit 9 at pages 109-115 PCB
[33]See exhibit 9 at page 110 PCB
45 At that time, Dr Gong arranged for the plaintiff to undergo the plain x-ray which has already been detailed.
46 The plaintiff subsequently consulted various doctors at that clinic on 27 July 2011, 10 August 2011, 23 September 2011, 19 October 2011, 17 November 2011, 17 January 2012, 16 May 2012, 21 May 2012, 31 May 2012, 4 December 2012, 28 December 2012, 29 January 2013 and 21 February 2013, at which times he complained of lower back pain.
47 Over that period of time the plaintiff was variously prescribe Diazepam tablets, Naprosyn, Panadeine Forte, Pariet tablets and Tramadol. Furthermore, when seen by Dr K Maclean on 10 August 2011, arrangements were made for him to have his first MRI scan previously referred to. Also, when consulting Dr S Bandaru on 16 May 2012, the plaintiff gave the history of an old back history and “sciatica” at work in December 2010. Examination at that time found straight leg raising to be negative and there was no focal neurological deficit.
48 Also, when seen by Dr R Young on 4 December 2012, that doctor records that the plaintiff is making “good gains and at about 85%” (as estimated by the plaintiff) and was coping well on current restrictions.
49 I also refer to exhibit “D” which consists of a number of Certificates of Capacity and, in particular, certificates issued by Dr Young on 4 December 2012 and one from Dr V Komerelly dated 29 January 2013, which respectively certify that the plaintiff was fit for modified duties from 1 December 2012 to 28 December 2012, and from Monday 28 January 2013 to 22 February 2013.
50 The undisputed evidence would appear to be that the plaintiff attended the Stawell Medical Centre at the request of the defendant.
51 The plaintiff also relies on reports dated 26 November 2012 and 7 October 2013 from the Wimmera Health Care Group in relation to physiotherapy treatment he underwent.[34]
[34]See exhibit 4 at pages 30-34 PCB
52 The first report is addressed to a representative of the insurer and signed by a physiotherapist, Mr Ben Wiessner. The second report is also addressed to a representative of the insurer and is signed by a physiotherapist, Ms Sarah Coles.
53 In the first report, Mr Wiessner records that he had been treating the plaintiff for lower back pain since 24 October 2011 and that he had been “making slow but steady progress”.[35] The physiotherapist notes that the plaintiff was experiencing pain at his workplace for one year prior to seeking treatment and that his rehabilitation was in line with expectations. The physiotherapist describes how he was performing work with the defendant but should only be gradually reintroduced to the underground breakdown fitter role. According to the physiotherapist, the plaintiff was not gradually re-introduced into this role on 30 October 2011 and by 31 October 2011, his back pain was exacerbated to the point he could not continue.
[35]See exhibit 4 at page 30 PCB
54 In the second report, Ms Coles confirms that the plaintiff first injured his back in late 2010 while positioning a heavy buggy tyre when employed by the defendant.
55 Ms Coles confirmed that the plaintiff had first attended physiotherapy on 24 October 2011 and as at the date of her report, had had twenty-seven reviews since the initial assessment. She noted that the plaintiff returned to some pre-injury duties in late-October 2012, but only lasted two days due to the required tasks aggravating his back. He then returned to lighter duties until receiving a redundancy notice ceasing his employment in February 2013.
56 In particular, Ms Coles, notes that the plaintiff experienced “… an acute exacerbation of his low back pain in March 2013 when performing a squatting exercise in the gym”.[36] At the time of writing her report, Ms Coles noted that the plaintiff was currently working as a car mechanic, and although his back was sore at the end of the day he was coping reasonably well with his work tasks. She opined that the plaintiff had the capacity to return to work as a mechanic with the following restrictions:
·avoid sustained awkward positions (that is bent over for long periods, working in confined spaces)
·avoid sustained static position (that is, sitting/standing) for greater than one hour
·avoid lifting or positioning objects over 25 kilograms.
[36]See exhibit 4 at page 32 PCB
57 Ms Coles also recommended that in order for the plaintiff to continue working in his current capacity and for his ongoing improvement, it was necessary for him to “remain physically strong, aerobically fit and have timely activation of his stabilising abdominal muscles”.[37]
In order for that to be achieved, she recommended that he continue with a functional exercise program, with monthly physiotherapy reviews to help him adjust and progress his program in the appropriate manner.
[37]See exhibit 4 at page 30 PCB
58 The plaintiff also relies on the medical records of the Read Street Medical Clinic situated at 6-12 Read Street, Horsham. [38] Those records initially commence with a consultation on 24 November 2009 (for an irrelevant condition) and thereafter run from 17 April 2013 to 5 December 2014, and involve consultations in relation to the plaintiff’s lower back condition. Over that period, he was treated by Dr Weerakkodi Champika Wijeratne and Dr Rowena Martin.
[38]See exhibit 9 at pages 116-121 PCB
59 It is to be noted that the first examination at that clinic was a consultation with Dr Wijeratne on 17 April 2013 (a few weeks after what was described by the physiotherapist, Ms Coles, as “an acute exacerbation of his low back pain in March 2013 when performing a squatting exercise in the gym”.[39]) On examination, Dr Wijeratne found the plaintiff well, with back movement restricted in all directions, and there was no tenderness. In particular, the neurological examination was normal in the lower limbs. Also on the following consultation on 13 May 2013, the plaintiff reported that he did have another flare-up of pain recently, just from minor physical effort, and that at that time was finding it difficult to sit for more than ten minutes, and bending was difficult.
[39]See exhibit 4 at page 32 PCB
60 Also, I note that Dr Martin, who consulted with the plaintiff on 14 January 2014, obtained a history at that time of the injury in 2010 and the exacerbation of back pain in March 2013. Dr Wijeratne provided a report to the Accident Compensation Conciliation Service dated 25 September 2013[40] and a report to the solicitors for the plaintiff dated 15 October 2013.[41] In the first report, Dr Wijeratne notes that the history of the condition involves back pain following lifting a tyre of his truck in December 2010, after which an MRI scan on 12 October 2011 demonstrated degeneration in the two lower lumbar discs. At that time, Dr Wijeratne reports that the plaintiff’s pain was aggravated with prolonged sitting or standing, bending forward, or moving from sitting to the standing position. Dr Wijeratne also noted that the plaintiff was then working three days a week with no lifting of more than 20 kilograms, and needs continuing physiotherapy.
[40]See exhibit 2 at page 19 PCB
[41]See exhibit 2 at page 20 PCB
61 In the later report, Dr Wijeratne notes that he has been issuing WorkCover certificates since 17 September 2013, although he has not prescribed any medications for the plaintiff. The notes would suggest that the plaintiff sought to avoid medication if at all possible.
62 Dr Martin also supplied a report to those acting for the plaintiff dated 27 June 2014.[42] In that report, she confirmed the history of injury in December 2010, and also records that the plaintiff has back pain most days and has had physiotherapy in the past. She notes that he exercises in the gym about four days a week and exercises at home on other days, and takes simple analgesics for pain. She also notes that the plaintiff was working for about 7.6 hours a day (excluding breaks) and has an hour-long lunch break and two fifteen-minute short breaks. He finds those breaks helpful, and is restricted to lifting 20 kilograms. She notes that the plaintiff is “functioning at almost the same level as before the injury”.[43]
[42]See exhibit 2 at page 21 PCB
[43]See exhibit 2 at page 21 PCB
63 Dr Wijeratne referred the plaintiff to Dr Dan Bates at the Metro Pain Clinic. Dr Bates saw the plaintiff on one occasion – being 21 June 2013, and reported to the solicitors of the plaintiff on 8 November 2013.[44] At the time of that examination, the plaintiff gave a history that he initially hurt his back in December 2010 following lifting a tyre weighing 100 kilograms, after which the plaintiff settled, but he had a subsequent exacerbation when he returned to work in his previous role, and yet a further exacerbation on 17 March 2013. The plaintiff located the pain in the midline above his belt, and described it as a dull ache with intermittent sharp pain. His pain was particularly aggravated each morning and following rest, and he denied any neuropathic or mechanical features. Ultimately, Dr Bates was of the opinion that the plaintiff presented with somatic referred pain likely secondary to his lower lumbar facets or L4-5 disc prolapse. He recommended that in order to clarify the diagnosis, the plaintiff undergo a bilateral L3-4-5 medial branch block and, if positive, a control block. Again, if the blocks were negative, Dr Bates recommended an L5 nerve root injection to exclude this nerve root as a source of the pain.
[44]See exhibit 4 at pages 35-36 PCB
64 Dr Martin referred the plaintiff to the orthopaedic surgeon, Mr Peter Wilde, who consulted with the plaintiff on 20 August 2014.[45] Mr Wilde obtained a history that the plaintiff initially hurt his back when changing a heavy industrial tyre, and since that time he has experienced recurring episodes of back pain and, occasionally, very severe pain indeed. In particular, Mr Wilde recorded that the plaintiff recently strained his back when repairing something on his roof.
[45]See report dated 20 August 2014, exhibit 4 at pages 37-38 PCB
65 Mr Wilde also recorded that the plaintiff was then working in a new job as a four-wheel drive diesel mechanic and he is performing physiotherapy by doing a gym/swim program.
66 Mr Wilde noted that a physical examination at that time revealed a tall muscular man with good spinal posture, diminished lumbar movement due to pain, tenderness at L4, and no neurological findings in the lower limbs. He also noted that the MRI scan – it is not clear whether he is referring to the scan undertaken on 12 October 2011 or, indeed, the one taken on 8 April 2014, which was not reported on until 5 August 2014 – which shows a large annular tear at L4-5, central and to the right, with a small extrusion of disc material posterolaterally. There is no evidence of neural compression lesion.
67 Mr Wilde was of opinion that the plaintiff had suffered a significant L4-5 disc injury, and thereafter he discussed with him a variety of treatment options, although noting that he – that is, Mr Wilde – would prefer to continue with conservative measures.
68 Dr Wijeratne and Dr Martin issued a variety of certificates[46] certifying the plaintiff fit for modified duties, with a lifting restriction of no more than 15 kilograms, or sometimes 20 kilograms, per week over the period from 11 March 2013 to 3 January 2015.
[46]See exhibit “D”
69 The plaintiff also relies on the medical records of the Lister House Clinic situated at 146 Baillie Street, Horsham.[47] Those records seemingly run from 9 December 2008 to 5 December 2016. The initial three consultations on 19 December 2008, 25 March 2010 and 10 November 2010 clearly predate the injury.
[47]See exhibit 9 at pages 122-132
70 The plaintiff did consult the clinic on 25 March 2011 (approximately five weeks after the injury) complaining of a mole on his back, and was investigated for unrelated matters.
71 On 25 March 2013, the plaintiff consulted with Dr Chris Foord, complaining of lower back pain which was the subject of a WorkCover claim against the Stawell Goldmine. Dr Foord recorded:
“PT works as a diesel mechanic in Stawell gold mines but had an injury to lower back late last year & been initially on TI & then modified duties for last 2 mths. Recently having physio rehab & ? aggravated his back condn (squats with wt on shoulders !) – had a bad w’end & had to resort to taking a friends endone which helped abit. Pt states he doesn’t take any medication at all but things so bad that had to take something as he could not sleep & was getting angry. No neuro symptoms of parathesia or footdrop.”[48]
(sic)
At that that time he was given a WorkCover certificate for total incapacity for four weeks, and warned not to do any physiotherapy exercises at that stage and let things ‘settle’ for next few weeks.
[48]See exhibit 9 at page 131 PCB
72 The plaintiff next consulted that clinic on 9 January 2015, advising that his general practitioner, Dr Martin (at the Read Street Medical Clinic), had left. At that time, the plaintiff explained he would obtain his record and he was advised that a Dr Win would look after this “WorkCover patient”. Arrangements were made to see Dr Win later that day – that is, 9 January 2015.
73 On that day, Dr Win seemingly got a history that the plaintiff had suffered back pain since 2010 and been diagnosed with an L4-5 disc problem, demonstrated on two MRI scans. The plaintiff informed Dr Win that he was now on modified duties with restrictions of not lifting anything more than 20 kilograms.
74 Examination on that day revealed the movements of his lower back to be “only mildly limited” but were slow due to pain, and there was no neurological deficit.
75 Dr Win continued to be the treating doctor up until 5 December 2016.
76 I refer to exhibit 3, which consists of four reports – dated 5 August 2015, 7 August 2015, 14 September 2016 and 18 November 2016 – all of which are addressed to the solicitors for the plaintiff.
77 Dr Win gave evidence by video-link on 23 August 2017, at which time he described himself as a legally-qualified general practitioner now carrying on practice at two clinics – My Health Medical Centre in Garden City, Brisbane, the Best Clinic at Carindale in the Metropol Shopping Centre in Brisbane.
78 In his evidence-in-chief, Dr Win was taken to each of the aforementioned reports and he gave evidence that each of the histories obtained by him and the findings of examination as set out in those reports were true and accurate, and that the opinions expressed in those reports were the opinions held by him at that time.
79 In those reports, Dr Win confirmed that he first consulted with the plaintiff on 9 January 2015 in relation to ongoing back pain and that his previous general practitioners had moved away. At that time the plaintiff was working as a mechanic, with a restriction of not to lift more than 20 kilograms (consistent with the certificates from Wijeratne of the Read Street Medical Clinic).
80 At that time, the plaintiff was using anti-inflammatory medicine – Ketoprofen – regularly. However, this was ceased due to concerns about kidney side effects, given that he had some mild renal impairment. Dr Win notes that he had also tried Endone, Targin and Paracetamol tablets when consulting him. However, the plaintiff stopped taking medicines eventually, as he did not want to take medicines all the time. The plaintiff was also continuing physiotherapy with physiotherapist, Ms Sharon McGrice. Dr Win noted that the plaintiff finally stopped working as a mechanic due to ongoing back pain and the plaintiff decided that he would change his profession, as his condition was not improving, and may be worsened by continuing to work as a mechanic. Dr Win noted that the back pain improved somewhat after ceasing as a mechanic, and the plaintiff, prior to that, had varying degrees of restricted back movement, which was generally mild, however he was slow due to pain. In his report dated 14 September 2016, Dr Win notes that on 17 June 2016, the plaintiff reported “sciatic pain (pain radiating to right lower limb) for sometime” (sic).[49] An MRI scan undertaken showed L4-S1 vertebral disc prolapse pressing on nerve root.
[49]See exhibit 3 at page 26 PCB
81 I refer to the actual notes contained in exhibit 3 and, in particular, to the following consultation:
(a)On 31 March 2016, the plaintiff reported that he had had an exacerbation of lower back pain and, indeed, Dr Win recorded:
“…
worse recently and unable to work yesterday
was working as personal trainer and works at home
Denies any tingling or numbness or weakness
started norspan 2 patches yesterday
O;
afebrile
no spine tenderness
bent forward slightly
pain worse with movement
P;
start targin
rest completely
review next week
MRI repeat”[50]
[50]See exhibit 3 at page 125 PCB
(b)On 4 April 2016, Dr Win records:
“…
pain is much better
took off norspan patch on saturday as feeling nauseous
nil radiation of the pain
saw physio on friday
wants to increase weight limit to 20 kg
O;
afebrile
moderate restriction of back mm
wants to go back on work
P;
to limit weight limit to 5 kg for now ; exp he can trial work
can go onto limited duties
to try to arrange MRI
rev with MRI or specialsit (sic) review
disc”;[51][51]See exhibit 3 at page 125 PCB
(c)On 24 May 2016, Dr Win records, amongst other things, that the back pain is “variable” and:
“better and doing core strength training as per physio including using weight
He stated that he could use upto 24 kg. I am reluctant to permit that without a letter from physio and MRI to see how his disc problem is progressing. Said he will have MRI soon. Approved by insurance.
…
no neurological deficit or bony tenderness
flexion about 60, ext 20, lateral flexion about 30
lateral rotation about 35
afebrile
? spinal surgeon or rehab physician rev
wait for MRI
wants targin and norspan again, using only prn. targin when norspan started and waiting to be effective.”[52]
[52]See exhibit 3 at page 123 PCB
(sic)
(d)17 June 2016, Dr Win recorded that the plaintiff:
“Having sciatica for last 5-6 weeks
seeing physio in Melbourne for back strengthening exercises”;[53]
(e)At that time, the notes would suggest that Dr Win then had available the MRI scan undertaken on 10 June 2016.[54]
[53]See exhibit 3 at page 123 PCB
[54]See exhibit 6 at page 74 PCB
82 Dr Win referred the plaintiff to the neurosurgeon, Mr Chan, who ultimately performed an L5-S1 microdiscectomy on the plaintiff on 15 September 2016.
83 In his report dated 18 November 2016, Dr Win notes that subsequent to the surgery, he certified the plaintiff to be fit for suitable duties of two to three hours a day, starting from 24 October, and this was increased to three to four hours a day from 5 November 2016, with limitations on weight lifting. Under cross-examination, Dr Win accepted that:
(a)He had no knowledge or memory of any history that the plaintiff may have given to previous practitioners;
(b)In particular, no knowledge of any history that he may have given to his general practitioner in July 2011;
(c)No knowledge as to what type of work the plaintiff performed between December 2010 and the first consultation with Dr Win in January 2015;
(d)No knowledge of the symptoms that he was suffering in 2010;
(e)No knowledge of what may have caused any symptoms that he was suffering when he examined the plaintiff.
84 In particular, the following evidence was given:
Q: “You don’t know when you write your report whether or not this man’s symptoms are caused by work, four-wheel driving, bike riding or gymnasium---
A: Yeah, I do not have knowledge of when, how, it started so I - I - I have to admit I cannot comment on how it started.
Q: And you would be in no position to write a report suggesting that his back complaint is as a result of his employment. Is that right?---
A: How I can say yeah but probably I have to admit I cannot be certain how it happened at that time.”[55]
[55]T64, L23 –31
85 Dr Win was taken to the entry of 31 March 2016 (to which I have already recorded) and the following evidence was given:
Q: “Okay, is that as a result of some accident at the gym?---
A: I have no recollection about how it happened.
Q: That’s the full note of the entry on 31 March 16. Is that right?---
A: That’s correct, yeah.
Q: Okay, did you not understand that that was as a result of doing what was known as a "Sumo squat"?---
A: I do not have any – I do not have a recall or memory about any of that, and it isn’t – doesn’t, as you know, in my notes.
Q: So the cause of his pain, the cause of his problem, and the state of his problem – I withdraw that. As to what was the cause of his problem and what is now causing his on-going problem, the cause of that is unknown to you. Is that right?---
A: I would say I only have a second glance at the notes, information about what started his problem and I do only have the knowledge how he was when he consulted me, or when I was treating him.
Q: So you only know what he was doing when you were treating him?---
A: Only know – I cannot know everything he do but I can know his condition when I, you know, the way he presented to me as well as how we are treating him.
Q: Yes sure, and Doctor, we might be at cross-purposes. What’s the cause of his initial pain and treatment, that’s something you do not know. Is that right?---
A: Yes, I do not have knowledge about, you know, since 2010 to – from 2010 to 2015, except some limited note from a previous GP at that time he presented to me, yes.
Q: Which you now don’t have, is that right?---
A: Yeah I do not have, yeah.”[56]
[56]T67, L20 – T68, L16
86 The doctor also gave evidence under cross-examination that during the time he treated the plaintiff until the doctor moved to Queensland, the plaintiff had a weight-lifting restriction which initially commenced at 20 kilogram and then downgraded to 10 kilograms and 5 kilograms, but was not allowed to weightlift. When queried, under cross-examination, Dr Win confirmed that the plaintiff wanted to become a personal trainer but did not report to him anything about bodybuilding activities. Dr Win also confirmed that over the times he physically examined the plaintiff, and when queried that you could see he was doing some bodybuilding, Dr Win stated:
A: “He was - how can I say, he is pretty muscular man ‑ ‑ ‑
Q: Yes?---
A: - - - so - - -
Q: This is my point?---
A: - - - yeah, I think he possibly doing body-building exercises, yes.”[57]
[57]T69, L12-24
87 The plaintiff relies on medical reports from the treating neurosurgeon, Mr Patrick Chan, dated 26 November 2016, 22 February 2017 and 11 April 2017.[58]
[58]See exhibit 4 at pages 39-41d PCB
88 Mr Chan initially consulted with the plaintiff on 8 August 2016 on referral from Dr Win at the Lister House Clinic. On that day, he obtained the following history:
·Six years prior, the plaintiff first suffered his lower back pain when lifting a big wheel working as a mechanic. He developed lower back pain that radiated to thighs and both knees. This gradually improved and he was left with residual intermittent lower back pain.
·On 15 May 2016, he had re-exacerbation of lower back pain with right leg pain. The pain radiated from his right gluteal region into his right hamstring, right calf, associated with stabbing of his right Achilles tendon. Upon sitting he developed numbness of his right foot. With blowing his nose or back motion, this caused radiation of sharp pain along the right leg. Sitting and lying on the right side worsened the symptoms.
89 Examination performed on 8 August 2016 revealed that the plaintiff walked with an antalgic gait. A straight leg raising test on the right was positive, and neurological examination of the lower limbs revealed areflexic right ankle jerk, but normal strength and sensation with pedal pulses present. At that time, Mr Chan had available to him the initial MRI scan undertaken on 12 October 2011,[59] and the MRI scan undertaken on 10 June 2016 (reported 12 June 2016).[60]
[59]See exhibit 6 at pages 69-70 PCB
[60]See exhibit 6 at page 74 PCB
90 Mr Chan noted that the first scan revealed L4-5 loss of disc height with central disc protrusion, associated with bilateral L5 traversing nerve root compression. There was also loss of disc height at L5-S1 level, with a right side disc bulge without neural compression. He noted the MRI scan undertaken on 10 June 2016 to show further progression with right L5-S1 focal disc extrusion now compressing on the right S1 traversing nerve root. The L4-5 disc bulge is now smaller and no longer compressing on the L5 nerve root. Mr Chan noted that on examination the plaintiff had medically refractory significant right S1 radiculopathy and there was discussion about various options of treatment.
91 Ultimately the plaintiff was admitted to the Epworth Hospital on 15 September 2016 and underwent surgery of right L5-S1 microdiscectomy. Mr Chan noted that a large focally protruded and extruded right L5-S1 disc was compressing on the right S1 nerve root. The disc was removed and the nerve root decompressed.
92 Mr Chan noted that surgery went “smoothly, with the plaintiff recovering well after the surgery, with resolution of leg pain. He was discharged home on 17 September 2016.
93 On review on 31 October 2016 (some six weeks after the surgery), Mr Chan notes that the plaintiff was “doing very well” with the scar well healed and no further leg pain. The plaintiff did experience some residual discogenic lower pain that radiates to his right gluteal region which was “manageable”. At that time, Mr Chan considered the overall prognosis to be –
“… good with concordant pathology and symptoms and an uneventful right L5/S1 microdiscectomy with early resolution of his right S1 radicul[o]pathy.”[61]
[61]See exhibit 4 at page 41 PCB
94 In particular, Mr Chan stated:
“… I consider his current condition to be aggravation or deterioration of his original back pain and back injury suffered during his course of employment. This was because his onset of back pain was after the workplace incident as described. This has been fluctuating and it can be significantly associated with right S1 radiculopathy in March this year. The clinical and radiological appearance suggests a progression of his previous back condition.”[62]
[62]See exhibit 4 at page 41 PCB
95 The plaintiff was reviewed on 9 January 2017 and on 6 February 2017. On that first occasion (now some four months after the surgery), Mr Chan notes that recovery “has been slow” and that although he was not on much pain relief, the plaintiff was still having discomfort from his back ache and bilateral leg pain, worse on the right than left. Such pain extended into his hamstrings and calves and was affecting his ability to walk or stand for prolonged periods of time, or sitting for prolonged periods of time. At that stage he was still not able to return to work.
96 Mr Chan organised for the plaintiff to undergo a further MRI scan of the lumbar spine and a dynamic lumbar spine x-ray.
97 On review on 6 February 2007, the plaintiff had recurrent right leg pain extending from his right gluteal region into his right hamstring, but no longer below his right knee. Mr Chan noted that although the symptoms were better than before the surgery, they remained significant. In particular, the further MRI scan of the lumbar spine on 18 January 2017[63] revealed, according to Mr Chan:
“… recurrent disc extrusion at the right L5/S1 level compressing the right S1 nerve root. The disc bulge at the right L4/5 level has enlarged compared to previous MRI scans and is wedging the right L5 nerve root but not compressive.”[64]
[63]See exhibit 6 at page 75 PCB
[64]See exhibit 4 at page 41b PCB
98 Mr Chan was of the opinion that the dynamic lumbar spine x-ray undertaken on 18 January 2017 did not show any gross instability.
99 In his report dated 22 February 2017, Mr Chan expressed the opinion that:
“Mr Eugene Coutts has recurrent right L5/S1 disc herniation with right S1 nerve root compression and a progression of the disc bulge at the right L4/5 level with wedging of the right L5 nerve root, it is a natural progression of the disc injury from his original injury.”[65]
[65]See exhibit 4 at page 41b PCB
100 Various treatment options were discussed at that review. As the evidence establishes, the plaintiff underwent cortisone injections to reduce the size of the herniation initially on 7 April 2017 (which did not reduce the pain in his back at all according to the plaintiff), and later on 28 April 2017.
101 In a report dated 11 April 2017, Mr Chan noted that he had received a letter from the solicitors acting for the plaintiff enclosing CD scans of the lumbar spine x-ray and the MRI scans. He also makes comment that he has perused the report from Mr G Doig (wherein it was suggested that the L5/S1 injury for which surgery was undertaken had no relationship to the original injury in 2010). In response to various questions posed, Mr Chan stated:
“a.After his injury of 2010, he had an MRI scan on 10th December 2011. This showed L4/5 disc protrusion causing compression of the right L5 nerve root. There also showed a loss of disc height with disc bulges at L5/S1 level without neurocompression. Based on the description of his history and reviewing the MRI scan of 10th December 2011, I believe that the original mechanism of injury arising out of the 2010 work incident was L4/5 and L5/S1 inter disc disruption with an L4/5 disc protrusion compressing on the right L5 nerve root.
b.There was an MRI scan of 4th August 2014 which showed the resolution of the L4/5 disc protrusion with residual L4/5 posterior annular fissure, disc bulge with underlying disc desiccation and loss of disc height without further neurocompression. There was L5/S1 disc desiccation and loss of disc height with a right posterolateral disc bulge without significant neurocompression. The appearance showed improvement at L4/5 level with some progression at the L5/S1 level compared to previous MRI scan of 10th December 2011. He then suffered re-aggravation of his lower back pain which was sustained in May 2016 gym exercises. The MRI scan after that (10th June 2016) showed the L4/5 loss of disc height, small disc bulge, disc desiccation without significant neurocompression. There is now a further progression at L5/S1 level with now a right L5/S1 disc extrusion compressing on the traversing right S1 nerve root, on a background of disc desiccation and loss of disc height. The nature of the injury is the aggravation of the previously injured L5/S1 level.
c.Having regard to the further material that you provided, in particularly (sic) the 02.01.14 MRI film, disc desiccation and loss of disc heights were noted in both L4/5 and L5/S1 levels in the MRI scan of 4th of August 2014, that the opinion I expressed in my previous reports of 26th November 2016 and 22nd February 2017 remain unchanged.
d.It is highly probable that Mr Coutts’ original injury rendered his lumbar spine vulnerable to further disc injury such as that which appeared to occur in the May 2016 gym exercises.
e.If he had not suffered the original back injury in 2010, I would consider that Mr Coutts would be less likely to have suffered the injury or aggravation to his lower back in the May 2016 gym exercises.”[66]
[66]See exhibit 4 at pages 41c-41d PCB. Doctor Chan has mixed up the dates of the MRI scans – when he refers to 10 December 2011 – that is a reference to 12 October 2011. When he refers to 4 August 2014 – that is a reference to 8 April 2014
The cross-examination of the Plaintiff
102 Under cross-examination, the plaintiff confirmed that as at the time of the injury, he was living in Horsham and travelling to Stawell each day for work. The plaintiff also confirmed that in Horsham at around that time, there were the following medical clinics:
(a) The Lister House Clinic;
(b) The Wimmera Health Care Group which he believed was an amalgamation of the Wimmera Base in Dimboola Hospital and Wimmera Health Care;
(c) The Read Street Medical Clinic.
103 When queried about whether he was a patient at Lister House Clinic, the plaintiff responded he could not specifically recall but believed that he may well have been to other clinics or indeed Tristar, which he described as a new conglomerate which is a medical clinical practice in Horsham.
104 The plaintiff was referred to an entry of the Lister House Clinic records on 25 January 2011 when the plaintiff attended in relation to a mole on his back. It was suggested to him that that date, being one month after the injury, makes no mention of any injury at work to his back. Furthermore, it was put to the plaintiff that the first recorded attendance at the Lister House Clinic in relation to his back was on 25 March 2013 when he came in complaining of low-back pain after doing squats with weight on his shoulders.
105 In particular, the following was put to the plaintiff:
Q:“So that attendance at Lister House in March 13, we’ve got a period of all of 11, all of 12 through to March 13 so that’s two years and three months and you’re not having treatment in relation to your low back from a general practitioner until the injury with the squatting with the weights. Is that right?---
A:I believe I was seeing the Stawell Gold Mines’ general practitioners in Stawell for that period.
Q:OK?---
A:As it was protocol for Stawell to do that.
Q:OK. So you were seeing the Stawell Goldmines’ general practitioner?---
A:Correct.
Q:And are they from the Stawell Medical Clinic?---
A:I believe so.
Q:We don’t have any reports from them in this case, as I understand. Is that right?---
A:I can’t recall.”[67]
[67]T40, L7-L25
106 The plaintiff could not recall any names of the doctors at the Stawell Medical Clinic but also informed the Court that there were a number of doctors at the clinic and he would take whoever was available.
107 It was put to the plaintiff that the records of the Stawell Medical Clinic records there was an attendance on 11 July 2011 with Dr Emily Gong, at which time a history was given by the plaintiff that he was lifting some heavy stuff “two months ago”. The plaintiff could not recall.
108 The plaintiff did give evidence that he went to the Stawell Medical Clinic numerous times and that was in part to obtain certificates of capacity.
109 It was then put to the plaintiff that he also consulted a Dr Wijeratne at the Read Street Medical Clinic on 17 April 2013 which was said to be after the squats incident. The plaintiff accepted such assertion.
110 It was then put to the plaintiff that:
(a) Following the attendance on the medical practitioner on 11 July 2011 at the Stawell Medical Clinic, he was provided with certificates for light duties until about mid-August. (The plaintiff could not recall);
(b) That by the end of 2011 the plaintiff had been back, certified as fit for normal duties. (The plaintiff responded that he thought there was a period there, “correct yes”);
(c) That the plaintiff was back working in the mine and underground. (The plaintiff said this was correct);
(d) Such work involved driving utes around and that he worked all of 2012 in the mine. (The plaintiff said this was correct).
111 Thereafter, the following evidence was given:
Q:“Ok. And you would know that in late 2012 the mine was – the staff at the mine was being reduced?---
A:Correct.
Q:And what had happened in the – in reality was that the mine was running out of materials, is that correct?—
A:That, yeah, proved up correct.
Q:Yes, and so the mine was reducing staff and offering people voluntary redundancies?---
A:I’m not sure if I was aware of the voluntary redundancies at that point in time.
Q:Ok. In 2013 you were aware of the voluntary redundancies because you took one?---
A:Yes, correct.
Q:Yes. So indeed, on the 22nd February 2013 you accept a voluntary redundancy package?---
A:Correct.
Q:In the knowledge that there’s not going to be any work for much longer at the mine in any event?---
A:At Stawell Goldmines. No.”[68]
[68]T44, L29 – T45, L12
112 The plaintiff confirmed that the Voluntary Redundancy Package was taken on 22 February 2013. At that time, he was doing full-time hours on modified duties. In respect to the modified duties, he was working above ground, where a clean room had been set up, and he was in there with a crane and “everything to make my work easier”.[69] He denied that he was getting his normal wages as he was now been paid less shift loading, which caused him to go and query his rate of pay.
[69]T45, L22
113 The plaintiff also confirmed he did obtain a certificate prior to that time for full duties which took him underground, and he performed, during that time, his normal duties.
114 The plaintiff was shown exhibit “C”, which was a photograph of the plaintiff after winning a body-building competition in October 2015. Under cross-examination, the plaintiff denied that he had got into body building at the time he left the Stawell Goldmines. He did accept that he was involved in ju-jitsu when he was about eighteen to twenty years of age.
115 The plaintiff accepted that over the years between 2010 and 2013, he was interested in four-wheel driving, and after his injury on or about 20 December 2000, he was trying to do as much four-wheel driving as he could.[70] The plaintiff also accepted that his type of four-wheel driving was of the “extreme” type, involving extreme decline and things like that. He denied there was much bouncing or rock hopping, per se, and that there was definitely “inclination and de-inclination, correct”[71] over extremely rough terrain.
[70]T49, L11-13
[71]T49, L30
116 The plaintiff accepted that that was his sport in 2011, 2012 and 2013, and he was very interested in four-wheel driving, and did it as often as “[his] back would allow [him].”[72]
[72]T50, L10-11
117 The plaintiff accepted that his four-wheel driving came to an end following the “squatting incident”. Also, the following evidence was given:
Q:“And indeed, in the period up until the squatting incident, you had another interest didn’t you, and that was - I don’t know what it’s called, but was it - is it downhill trail bike sort of, bike riding?---
A: Mountain bikes, correct.
Q:Mountain bikes. And it’s the extreme downhill, where you go at speed, is that right?---
A: Yeah, correct.
Q:And you were pursuing that as well in 2011 and 2012, is that right?---
A: I believe from memory, it was later than that, but - - -
Q: Okay?---
A: ‑ ‑ ‑ my memory isn’t that good.
Q: All right.”
HIS HONOUR:
Q:“And is that - when you say – I know what downhill riding is, but is this along a road, or is it, like, down a track?---
A:Oh, down a track or a four-wheel drive trail, or something like that.
Q:Yes?---
A:On full suspension mountain bikes.
… .”
MR SCANLON:
Q:“Okay. Most people fall off, don’t they?---
A:As any bike riding, you’re bound to fall off at some stage, correct.
Q:Sure. But in this bike riding, down steep - the idea is to get from the top to the bottom as fast as you can, is that right?---
A:In a racing aspect, correct.
Q:Yes, and that’s what you did, you and your mates?---
A:Oh, mainly social.”[73]
[73]T50, L28 – T51, L25
118 The plaintiff accepted that it was around “that timeframe” when queried as to whether he commenced seeing the physiotherapist, Ms Shannon McGrice, on 28 January 2014. He explained that he went to her after he tried to consult with his previous physiotherapist, “Ben”, situated at the hospital, but this involved waiting for a period of time. Furthermore, the plaintiff accepted that on or about 28 January 2014, he would have told Ms McGrice that he:
“Fell off a downhill mountain bike on the weekend. Left shoulder very sore, now particularly with overhead movement.”[74]
[74]T52, L21-24
119 Furthermore, the plaintiff believed it was correct in relation to an entry in Ms McGrice’s notes on 14 September 2014, where he had crashed twice going downhill, with the second crash causing him to land on his shoulder and losing all strength in his right arm. In particular, the plaintiff accepted that he had ongoing problems with his neck, but he is not sure where it stemmed from, but accepted it certainly had nothing to do with the defendant. Furthermore, he accepted that the neck condition “causes [him] a lot of problems and requiring a lot of treatment”.[75]
[75]T53, L7-8
120 In particular, the following matter was put to the plaintiff:
Q:“Okay. But in any event, whatever injury you suffered in your - to your back at the Stawell Mines, it did not prevent you from this extreme four-wheel driving and this kamikaze ride down the hill on the bikes?---
A: It didn’t stop me from doing it, no.”[76]
[76]T53, L27-31
121 The plaintiff accepted that he commenced as a diesel mechanic with Wimmera Diesel, he thought, “a good five months or six months” after taking the redundancy from the defendant. It was suggested by Senior Counsel for the defendant that the commencement date was 13 July 2013, to which the plaintiff said it may have been, but he thought it was later.
122 When queried about being a mechanic with Wimmera Diesel, the plaintiff made the point that when working the mines he was employed as a heavy diesel mechanic, and when employed by Wimmera Diesel, it was a light vehicle diesel mechanic. The plaintiff accepted that he built his hours up to full time, and worked there full time for a period of nearly two years.
123 The plaintiff also asserted that from about December 2014, when still working with Wimmera Diesel, he became heavily involved in body building.
124 The plaintiff was queried about the period of time it would take to build up a body as depicted in tendered photographs and the plaintiff maintained that he built up his body over about twelve months, involving sessions five or six days a week, with each session being for about an hour and a half. Depending on the exercise, he could lift between 80 or 100 kilograms.
125 The plaintiff explained that when he commenced his bodybuilding, he started with lighter weights and built up over time.
126 When queried as to whether he was on a medical certificate during the period of weightlifting requiring him not to work or lift weights in excess of 10 kilograms, the plaintiff gave evidence that he believed it was “twenty in a fashion that would not load my spine”. The plaintiff distinguished between not lifting over 20 kilograms when loading his spine, but would lift 150 kilograms to 160 kilograms, which does not load the spine.
201 Mr Chan, on having available all the MRI scans leading up to the surgery – that is, the initial MRI scan undertaken on 10 December 2011, the MRI scan undertaken on 8 April 2014 and the final MRI scan (before surgery) undertaken on 10 June 2016 – considered that it was a natural progression of the disc injury from the original compensable injury and, in particular, also opined that the MRI scan undertaken on 8 April 2014 demonstrated some progression at the L5-S1 level compared to the first scan on 12 October 2011. In respect of that point, Dr Doig considered that the second MRI scan (undertaken on 8 April 2014) revealed “no evidence of any ongoing L5/S1 pathology”[129] as a result of his work injury.
[129]See page 47 DCB
202 Although appreciating that I did not hear directly from either Mr Chan or Dr Doig, I prefer the opinion of Mr Chan, as he was the treating neurosurgeon and has actually seen the state of the discs when performing surgery and has dealt with the plaintiff over a reasonable period of time. Furthermore, it is to be noted that when Mr Chan expressed his detailed opinions in his report dated 11 April 2017, he had perused the report from Dr Doig, wherein it was suggested that the L5-S1 injury, for which surgery was undertaken, had no relationship to the original injury in 2010. It is unclear whether Dr Doig was ultimately shown the opinion of Mr Chan contained in the report dated 11 April 2017.
203 In this sense, I do accept that the back injury suffered by the plaintiff on 20 December 2010 involved the L4-5 disc and the L5-S1 disc. Furthermore, I accept the opinion of Mr Chan that such injury to the L5-S1 disc has progressed, as he has opined on the basis of the MRI scans, and that the original injury rendered his lumbar spine vulnerable to further disc injury, such as that which occurred after the deadlift in mid-2016.
204 In this respect, I do accept that the classical symptoms displayed by the plaintiff following the dead lift in support of a significant disc injury at L5-S1 were manifest at that time. However, the issue is whether or not the original injury in 2010 made the plaintiff more vulnerable to further disc injury at the L5-S1 level. In this sense, applying the principles enunciated in Altona Bus Lines v Lococo,[130] I accept the opinion of Mr Chan that it did. What must be stressed is that the opinion of Mr Chan can only be construed that he accepts that the L5-S1 symptoms suffered after the May 2016 dead lift came about because the plaintiff’s lumbar spine, in particular, the L5-S1 disc, was vulnerable to further disc injury following the original injury in 2010, which had progressed over the years.
[130]Op cit
205 The state of the plaintiff’s back is poor and, as I have recorded, the scan of the lumbar spine on 18 January 2017 (that is post-surgery) revealed a recurrent disc extrusion at the right L5-S1 level, compressing the right S1 nerve root. Furthermore, the disc bulge at the right L4-5 level has enlarged compared to the previous MRI scans and is wedging the right L5 nerve root, but is not compressive. Again, as I have recorded, the plaintiff has undergone Cortisone injections to reduce the size of the herniation on 7 April 2017 (which did not reduce the pain in his back at all according to the plaintiff) and, later, on 28 April 2017.
206 At the time of his work injury in December 2010, the plaintiff was employed as an underground breakdown fitter and had been so employed since January 2010. He was working on a full-time basis and, in particular, was working “four days on and four days off”. His evidence also was that prior to the work injury he was performing overtime and, indeed, some overtime after the injury. Those acting for the plaintiff prepared a document “Statement of Calculation of Loss of Earning Capacity” setting out the gross earnings from personal exertion over the years from 2008 and 2017, making allowance for WorkCover payments for the year ending 30 June 2012. The plaintiff demonstrated that he had a capacity to earn $148,951. I refer to the recent decision of Yirga-Denbu v Victorian WorkCover Authority,[131] wherein the Court of Appeal stated, among other things, that in determining the without injury earnings, which is dealt with by s134AB(38)(f)(ii), it requires the court to determine the gross income (expressed at an annual rate) that the worker was earning from personal exertion, or was capable of earning from personal exertion, or would have earned from personal exertion, or would have been capable of earning from personal exertion, during that part of the period within three years before and three years after the applicant suffered injury as most fairly reflects the applicant’s earning capacity had the injury not occurred.[132] Indeed, the plaintiff nominated the sum of $148,951, which would appear to be the gross income from personal exertion for the year ending 30 June 2012. Sixty per cent of that sum is $89,370 gross per annum.
[131][2018] VSCA 35
[132]See Yirgu-Denbu v Victorian WorkCover Authority (op cit) at paragraph [73]
207 Based on my findings in relation to the injury suffered by the plaintiff, I do find that the plaintiff has a serious long-term impairment of his lower back within the meaning of the definition of serious injury contained in paragraph (a) of s134AB of the Act. As those acting for the plaintiff have detailed in their submissions that the plaintiff during the course of his employment with the defendant had ongoing treatment from the Stawell Medical Centre, worked under the Certificate frequently after the injury, and sought to work above ground to avoid less stress on his back. I should also add that I do accept what the plaintiff informed the Court – that is, absent his back injury, he would have sought more underground mining work somewhere else in Australia after accepting the redundancy from the defendant. Although he accepted that he voluntarily sought the redundancy, knowing that the activities of the defendant were coming to an end, I have little doubt that he would have sought the type of work which he has given evidence of. It must be remembered that he was a young single man who was fit, loved outdoor activity, and enjoyed doing the type of work he was performing at the time. Moreover, his lifestyle was suited to working so many days on and so many days off, together with the obvious financial rewards which the job brought.
208 I am satisfied that the plaintiff did suffer a serious long-term impairment of his lower back within the meaning of the definition of “serious injury” contained in paragraph (a) of s134AB of the Act. In particular, given my finding of what the injury involved at the time of the work incident, the evidence is overwhelming that the capacity for the worker is vastly reduced and, indeed, I accept his evidence that the combination of working for some hours in a retail shop, coupled with his personal training of people represents his present capacity for work. I accept that the evidence is overwhelming that at the time of hearing this application he has suffered a permanent loss of earning capacity which is productive of a financial loss of 40 per cent or more. No one suggests he can perform his pre-injury duties but rather, is only capable of work which does not involve a lot of bending, lifting, standing, sitting or twisting.
209 I should add that if I be wrong and that the injury at the L5-S1 level is a distinct injury and unrelated to the work injury in December 2010, I also considered that the plaintiff is entitled to be found seriously injured in relation to the accepted disc injury suffered at L4-5, which is accepted by the defendant to have occurred in December 2010.
210 I accept that, of course, there cannot be an aggregation of two separate injuries to assess the consequences at this point in time. However, it is relevant to look at the evidence effectively given by the orthopaedic surgeon, Mr Wilde, who examined the plaintiff on 20 August 2014, and that given by the orthopaedic surgeon, Mr Carey, who examined the plaintiff on 15 April 2014. Both these witnesses examined the plaintiff prior to the dead-lift injury and considered that the plaintiff had suffered a significant L4-5 disc injury as a result of the work incident in 2010.
211 As reported, Mr Wilde considered that the plaintiff:
“… must modify the way he does his work so as to protect his back, he must be careful on weekends not to aggravate his back, work with core stabilising exercises and in time, hopefully, the disc annular tear will fibrous and stabilise.”[133]
At that time, the plaintiff was working at this new job with Wimmera Diesel.
[133]See exhibit 4 at pages 37-38 PCB
212 It is to be remembered that Mr Carey was of the opinion, after his examination, that the plaintiff suffered a large central herniation at L4-5 and was of the opinion that the prognosis is “continued discomfort and disability into the foreseeable future without further management.”[134]
[134]See exhibit “A” at page 25 DCB
213 It was the evidence of the plaintiff that he ultimately gave up his job at Wimmera Diesel which, although lighter than the underground work at the premises of the defendant, still caused him difficulties with his work, with him experiencing frequent back pain over that time. Again, as detailed by those acting for the plaintiff, there were frequent attendances on doctors over this period of time. I accept the evidence of the plaintiff in respect of his difficulties that he encountered at Wimmera Diesel causing him to cease that work.
214 In such circumstances, I do not consider that such employment with Wimmera Diesel was suitable and, in any event, the earnings from such work would appear to be less than 60 per cent of what he would have been earning with the defendant.
215 Again, in such circumstances, I formed the view that even on the basis that the plaintiff suffered a single disc injury at L4-5 in December 2010, such injury has resulted in a serious injury on the same basis that the without injury earnings of the plaintiff, if he had remained in the mining industry, are substantially more than what he was capable of earning with his ongoing back condition.
216 In particular, I stress that although I have made reference to earlier medical examinations to avoid any suggestion that in assessing the after-injury capacity of the work involved the dead-lift injury in 2016, there is no reason to think that the plaintiff would have improved his capacity over the period of time, and it is to be noted that the examinations by Mr Wilde and Mr Carey were some nearly four years after the advent of that injury. In this sense, I am satisfied that as at the date of hearing, the plaintiff would have continued permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.
217 Finally, I should refer to the argument relevant to s83(1)(d) of the Act which, if applicable, deems certain injuries to be a compensable injury. Section 83(1)(d) provides that if a worker is in attendance “at any place” for “the purpose” of receiving, among other things, but including “medical, surgical or hospital advice, attention or treatment” and suffers injury at that time, such injury is deemed to be a compensable injury.
218 I accept that the plaintiff was in attendance at the gym on the advice of his physiotherapist, not only in mid-2016, at the time of the dead-weight injury, but also at the time of the lifting injury in 2013. As a matter of probability, I do accept the evidence of the plaintiff given my findings in relation to his credit and, in particular, refer to the following evidence:
Q:“And the worst one, that is with the heavy lift of, call it a hundred kilos, that’s a lift that’s been done with a view to developing your body. That’s part of the body-building program, is that right?---
A:That’s incorrect. It was prescribed by my physiotherapist, Andrew Lock.
Q: What to do, to lift a hundred kilos?---
A:I believe it was prescribed to me to help increase my core strength. There, in turn, help my back.[135]
[135]T81, L30-T82, L6
219 The phrase “purpose … of receiving medical advice or attention or treatment” was considered in Buchanan & Brock Pty Ltd v Harris,[136] wherein it was stated:
“Medical treatment may take many forms: it may involve a course of conduct; it may involve the taking of physic; and it may even be abstention from particular action … Where a patient is doing what he is doing pursuant to medical advice I think that is comprehended in medical treatment even if what he is doing is merely avoiding action, or resting … and I think he would continue to come within those words until the occasion occurred when the medical man had pronounced the man fit from his injury and the treatment was no longer required.”[137]
[136][1957] VR 549 at 550
[137]Buchanan & Brock Pty Ltd v Harris (op cit) per Lowe at pages 551-552
220 Furthermore, the definition of “medical service” now contained in the Workplace Injury Rehabilitation and Compensation Act 2013 includes:
“attendance, examination or treatment of any kind by a … registered physiotherapist … and … .”[138]
[138]See the definition of medical services at s3(0)(a) of Workplace Injury Rehabilitation and Compensation Act 2013
221 Although I have no report from the physiotherapist, the plaintiff has always maintained that the purpose of him performing the dead lift was to strengthen his core to assist his back injury. Bearing in mind that the onus is only a matter of probability, I accept what the plaintiff says. Accordingly, I consider that such injury will be deemed to be a work injury within the meaning of the Act.
222 Accordingly, I make the following ultimate findings:
(a)Primarily, that a work injury suffered by the plaintiff on 20 December 2010 caused a discal injury at L5-S1 and L4-5, which has caused a serious long-term impairment of his lower back within the meaning of the narrative test. Furthermore, I am satisfied that, as at the date of hearing the plaintiff has discharged his onus to establish that he will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent of more. In such circumstances, I grant him leave to bring proceedings for pain and suffering damages and pecuniary loss damages;[139]
(b)If I be wrong in relation to the extent of the injury in December 2010, I do find that:
(i)The plaintiff suffered an L4-5 discal injury on 20 December 2010, which has resulted in a serious injury in that the plaintiff has suffered a permanent serious impairment of his back, which satisfies the narrative test. I am also satisfied that such injury has resulted, as at the date of the hearing (that is, based on the earlier reports of Mr Wilde and Mr Carey), the plaintiff suffering a loss of earning capacity productive of a financial loss of 40 per cent of more. Of course, a worker who satisfies the loss of earning capacity requirements in s134AB is entitled to have leave to bring proceedings for “pain and suffering damages” and “pecuniary loss damages” in relation to that injury;[140]
(ii)Furthermore, I am satisfied that the L5-S1 disc, if it occurred in mid-2016 (the dead-lift injury), and that such injury has no relationship to the work incident in December 2010, then such injury occurred in circumstances where the worker was in attendance at a place to receive medical treatment within the meaning of s83(1)(d) of the Act, and such is deemed to be an injury arising out of the course of his employment with the defendant.
[139]See Advanced Wire & Cable Pty Ltd & Anor v Abdulle (op cit) at paragraphs [60]-[64]
[140]Advanced Wire & Cable Pty Ltd & Anor v Abdulle (op cit)
223 I will hear the parties on the question of costs.
- - -
Annexure “A”
1 The plaintiff tendered the following material:
Exhibit 1
· Affidavits of the plaintiff sworn on 8 April 2016; 25 January 2017 and 5 July 2017.
(Such material found at pages 8 to 18c of the Plaintiff’s Court Book (“PCB”)).
Exhibit 2
· Medical reports of the former general practitioner, Dr Champike Wijeratne (Read Street Medical Clinic Pty Ltd in Horsham) dated 25 September 2013 and 15 October 2013
· Report of the then treating general practitioner, Dr Rowena Martin (Read Street Medical Clinic Pty Ltd in Horsham), dated 27 June 2014.
(All such material found at pages 19 to 21 PCB).
Exhibit 3
· Medical reports of the then treating general practitioner, Dr Nyan Win (Lister House Clinic in Horsham) dated 5 August 2015; 7 August 2015; 14 September 2016, and 18 November 2016.
(All such material found at pages 22 to 29 PCB).
Exhibit 4
· Report of the physiotherapist, Ben Wiessner, dated 26 November 2013
· Report of the physiotherapist, Sarah Coles (Wimmera Healthcare Group in Horsham) dated 7 October 2013
· Report of the sports medicine registrar, Dr Dan Bates (Metro Pain Clinics) dated 8 November 2013
· Report of treating orthopaedic surgeon, Mr Peter Wilde, dated 22 August 2014
· Reports of treating neurosurgeon, Mr Patrick Chan, dated 26 November 2016; 22 February 2017, and 11 April 2017
· Medico-legal reports of the consultant physician in rehabilitation medicine, Dr David Murphy, dated 12 December 2013 and 22 March 2014
· Reports of the medico-legal orthopaedic surgeon, Mr Thomas Kossmann, dated 25 February 2014 and 13 January 2017.
(All such material found at pages 46 to 50i PCB).
Exhibit 5
· Vocational assessment report prepared by the occupational therapist, Ms Suzanne George, dated 2 November 2015.
(Such material found at pages 51 to 67 PCB).
Exhibit 6
· Plain x-ray of the lumbar spine undertaken on 11 July 2011
· MRI scan of the thoracolumbar spine undertaken on 12 October 2011
· MRI scan of the lumbar spine undertaken on 5 August 2014
· MRI scan of the lumbar spine dated 12 June 2016
· A plain x-ray of the lumbar spine undertaken on 18 January 2017
· MRI scan of the lumbar spine following L5-S1 discectomy dated 19 January 2017
· CT-guided nerve root CSI-lumbar spine undertaken on 17 April 2017
· CT-guided nerve root CSI-bilateral C4-5 facet joint undertaken on 28 April 2017.
(All such material found at pages 68 to 77b PCB).
Exhibit 7
· Report of the occupational health consultant, Mr Andrew Miller, dated 22 January 2013.
(Such material found at pages 78 to 83 PCB).
Exhibit 8
· Worker’s Injury Claim Form dated 25 July 2011, together with Employer’s Injury Claim Form dated 4 August 2011
· A letter from CGU dated 12 April 2013 accepting claim.
(All such material found at pages 105 to 108E PCB).
Exhibit 9
· Clinical notes from the Stawell Medical Centre, Read Medical Centre, Mount Hask Clinic, the Equip Physio and Metro Pain Group.
(All such material found at pages 109 to 188 PCB).
2 The defendant tendered the following material:
Exhibit A
· MRI scan of the plaintiff undertaken on 8 April 2014
· Medico-legal report of the orthopaedic surgeon, Mr Roy Carey, dated 15 April 2014
· A Medical Panel Certificate of Opinion dated 10 July 2014
· A Medical Panel Certificate of Opinion dated 27 March 2015
· Medico-legal reports from the orthopaedic surgeon, Dr G Doig, dated 26 August 2016, 5 September 2016 and 11 July 2017.
(All such material found at pages 18 to 55g of the Defendant’s Court Book (“DCB”)).
Exhibit B
· Job options questionnaire completed by Dr C Wijeratne dated 13 July 2013.
(Such material found at page 70 DCB).
Exhibit C
· Affidavit of Wayne Gallasch sworn 19 January 2017.
· The Court substituted a photograph of the plaintiff accepting an award substituting for the photograph at page 88 of the DCB
(Such material found at pages 81 to 88 DCB).
Exhibit D
· Bundle of Certificates of Capacity running from 4 December 2012 to 17 June 2015.
Exhibit E
· Letter from the agent of the defendant to the plaintiff refusing surgery, dated 14 September 2016.
7
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