Crookston v Department of Human Services
[2015] VCC 936
•10 July 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-13-06370
| PETER CROOKSTON | Plaintiff |
| v | |
| DEPARTMENT OF HUMAN SERVICES | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12, 13 and 14 May 2015 | |
DATE OF JUDGMENT: | 10 July 2015 | |
CASE MAY BE CITED AS: | Crookston v Department of Human Services | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 936 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury application – injury to the lumbar spine – two separate incidents – pain and suffering
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; Dwyer v Calco Timbers Pty Ltd (No 2) VSCA 52; Sutton v Laminex Group Pty Ltd [2011] VSCA 52
Judgment: Leave granted to the plaintiff to issue common law proceedings for pain and suffering damages arising out of the second injury suffered during the course of the plaintiff’s employment with the defendant on 8 August 2008.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer QC with Mr J Goldberg | Slater & Gordon Ltd |
| For the Defendant | Mr P Jewell QC with Ms M Tait | Minter Ellison |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for injury suffered by him in the course of employment with the defendant in two separate incidents: the first on 23 May 2004 (“the first injury”) and the second on 8 August 2008 (“the second injury”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act.
4 There, “serious injury” is defined as meaning:
“(a) permanent serious impairment or loss of a body function.”
5 The body function relied upon in this application is in respect to the lumbar spine.
6 The plaintiff relied upon two affidavits, sworn by him on 18 July 2013 and 6 May 2015. The plaintiff was cross-examined. I have not summarised the affidavits and evidence of the plaintiff; however, I will refer to the relevant evidence of the plaintiff in my reasoning. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Issues
7 Counsel for the defendant submitted that:
(a) The claimed serious injury from May 2004 is not a “serious injury”;
(b) The claimed serious injury from August 2008 is also not a “serious injury”;
(c) The evidence does not permit a delineation of the impairment consequences of the first injury, in May 2004, and the second injury, in August 2008.
Relevant legal principles
8 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.[1]
[1]Section 134AB(19)(a) of the Act
9 In order to succeed, the plaintiff must prove, on the balance of probabilities, in respect to each injury, that:
(a) “each injury” suffered by him arose out of, or in the course of, or due to the nature of, his employment with the defendant;[2]
[2]Section 134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
(b) “each injury”, with its resulting impairment, must be permanent, in the sense that it is likely to continue into the foreseeable future;[3]
(c) “the consequences” to the plaintiff of his impairment to the lumbar spine in relation to “pain and suffering” must be “serious” – that is, “when judged by comparison with other cases in the range of possible impairments … fairly described as being more than significant or marked, and as being at least very considerable”.[4]
[3]Barwon Spinners (supra) at paragraph [33]
[4]Section 134AB(38)(b) and (c)
10 Consequently, the Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments.
11 As the plaintiff suffered two separate injuries on or after 20 October 1999, the appropriate analysis is that laid down by the Court of Appeal in AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz[5] as follows:
[5](2012) 34 VR 309 at paragraphs [31] – [35]
(a) Firstly, I must identify each injury;
(b) Secondly, I must delineate the impairment consequences of each injury;
(c) Thirdly, in the case of the second injury which, although an aggravation of the first injury, was a separate injury, I must determine whether the injury qualifies as a “serious injury” under s134AB(37) of the Act as amplified by s134AB(38) of the Act;
(d) Fourthly, in determining whether the plaintiff has discharged the onus of establishing that the second injury was a “serious injury”, I must compare the plaintiff’s condition before the second injury and his condition after the second injury, and then make an assessment of the additional impairment;
(e) Fifthly, as the two injuries arose from separate incidents, their consequences cannot be accumulated. The second injury must satisfy the requirements of a “serious injury” in its own right rather than in combination with the first injury;
(f) Insofar as the plaintiff seeks to rely on all of the pain and suffering consequences that existed after the second injury as being a consequence of the first injury, the plaintiff must prove that he has been rendered vulnerable by the first injury to all of the consequences that became apparent after the second injury;
(g) Alternatively to (f), did additional effects from the first injury that became manifest after the second injury, when taken into account in isolation from the second injury, produce a serious impairment to the lumbar spine as a consequence of the first injury?
12 In Stijepic v One Force Group Aust Pty Ltd,[6] Ashley JA and Beach AJA said:
“The emphasis in s 134AB(37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation – because, it may be supposed, the consequences are glaringly apparent one way or the other. … .”[7]
[6][2009] VSCA 181
[7](supra) at paragraph [42]
13 In determining the application, the Court:
(a) must not take into account psychological or psychiatric consequences for the purposes of paragraph (a) of the definition of “serious injury” – these can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”;[8]
[8]Section 134AB(38)(h)
(b) must make the assessment of “serious injury” at the time the application is heard;[9]
(c) notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[10]
[9]Section 134AB(38)(j) of the Act
[10] See Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592 at 628; Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
Investigations
14 On 18 July 2004, a CT scan of the lumbar spine concluded:
“There is central canal stenosis at L3/4 and L4/5 from a combination of factors. Narrowing of the lateral recesses bilaterally at both of these levels is seen with potential for impingement of the transversing nerve roots.”
15 On 24 September 2008, a CT scan of the lumbar spine concluded:
“Lumbar spondylosis, L4-S1 facetal osteoarthrosis, dorsal bulge L4-L5, disc apparently indenting the exiting L4 nerves and bony indentation of the exiting L5 nerves bilaterally in the retro-articular recess.”
16 On 21 October 2008, a diagnostic imaging report of the whole spine showed:
“The cervical, thoracic and lumbar vertebral bodies appear normal in height with no compression fractures seen.
There is minimal scoliosis in the cervico-thoracic spine concave towards the left, thoracic spine concave towards the right and lumbar spine concave towards the left.
There is decrease in the L4/5 and L5/S1 disc spaces, suggesting disc degeneration. The pedicles appear normal. No evidence of spondylolisthesis is noted.”
17 On 8 September 2009:
“Right L5-S1 facet joint injection. Using CT guidance a 20g needle was introduced into the above mentioned joint. Combination Celestone and Bupivacaine infused by Dr Paul Verrills.”
18 On 2 June 2011, a CT scan of the lumbosacral spine concluded:
“L5/S1 left sided lateral disc bulge and osteophytes producing compression of the exiting left L5 and to a lesser extent right L5 [nerve] root. Left facet appears degenerated. Secondary spinal canal narrowing at L4-5, L3-4 levels with flaval hypertrophy. Facet degeneration and bilateral exit foraminal narrowing. The spinal canal has a trifoliate appearance consistent with bony canal stenosis which is being accentuated by the flaval hypertrophy and disc bulges.”
19 On 24 January 2014, an MRI scan of the lumbar spine concluded:
“Multilevel degenerative disc disease. At least moderate grade canal stenosis L3/4 due to disc, short pedicles and facet joint arthropathy. Lesser canal stenosis L4/5 and L5/S1. Bilateral foraminal stenosis due to osteophyte formation and facet joint arthropathy. The nerve roots of the cauda equina are tortuous consistent with the canal stenosis.”
The Plaintiff’s medical evidence
Dr Brian Lovell
20 In October 2004, Dr Lovell, pain management specialist, examined the plaintiff on referral from the general practitioner. The plaintiff reported developing low-back pain after lifting a safe at work in May 2004. He did not seek attention for approximately five weeks. He was referred for physiotherapy and provided with Panadeine Forte to help night pain in particular. He ultimately had two weeks off work.
21 In October 2004, the plaintiff described his pain levels over the previous few months at 3 to 4 out of 10, but some days said the pain was in the background and he hardly noticed it. He reported that the pain levels prevented him from undertaking his former duties at work.
22 Dr Lovell undertook some paravertebral injections on the right side over the L5‑S1 zygapophyseal joint area, as well as into the upper sacroiliac joint. Post-injection, the plaintiff reported almost complete blocking of his pain. Dr Lovell said the pattern of pain response would be observed over the next four weeks and depending on the intensity, possible further local injection may be administered.
23 In November 2004, Dr Lovell noted the plaintiff reported a good initial response to the injections but after a week, he reverted to his previous level of pain. He reported a pain level of 2 out of 10, which he described was a good day. As the plaintiff had reported pain levels of normal 4 to 5 out of 10, Dr Lovell recommended medial branch blocks in the forthcoming week.
Dr David Vivian
24 In April 2014, the plaintiff was reviewed by Dr Vivian, a musculoskeletal physician, who reported to the defendant’s insurer in relation to the first incident that the pain was originally more right sided. In April 2005, he had a right L3 to L5 radiofrequency neurotomy, following which he had over two years of relief. He developed some low-back pain in early 2008. This was significantly aggravated by the August 2008 incident.
25 Dr Vivian said after the August 2008 incident, the plaintiff had further medial branch blocks and two radiofrequency neurotomies, but neither made a difference. He also had a caudal epidural, which helped briefly. In April 2014, Dr Vivian was aware the plaintiff had been taking opiate medication, Targin, for eighteen months, the dose of which had been increased, and Panadol Osteo, up to six tablets per day. Dr Vivian reported to the plaintiff’s general practitioner that:
· The plaintiff had chronic low-back pain, probably discogenic, with asymptomatic caudal canal stenosis;
· It was reasonable for the plaintiff’s pain to be controlled with a moderate amount of opiate medication, which he will require long-term.
· Depending on his degree of disability, he might consider a neuromodulation device;
· There was no indication for further radiofrequency neurotomies or epidurals;
· An operation to decompress the right canal would make a difference.
Dr Robert Gassin
26 In October 2011, Dr Gassin, musculoskeletal physician, reported that he examined the plaintiff on referral from his general practitioner. The plaintiff consulted him on five occasions between February 2009 and June 2011.
27 The plaintiff reported predominantly right-sided low-back pain. He reported that a previous L3-L5 medial branch radiofrequency neurotomy performed in April 2005 resulted in over two years of pain relief. He developed some low-back pain in early 2008. This was significantly aggravated on 8 August 2008 after an injury at work. The plaintiff reported some pain relief with Tramal SR twice daily. The plaintiff reported the pain was the same as prior to the radiofrequency neurotomy in 2005. It varied from day to day but was generally worse in the morning.
28 In March and April 2009, right L3-L5 medial branch blocks were performed. As they were positive, a right L3-L4-L5 medial branch radiofrequency neurotomy was performed. As this did not relieve the plaintiff’s pain significantly, a right L5-S1 facet-joint injection of cortisone was administered in September 2009.
29 In November 2009, the plaintiff reported five days of pain relief after the recent right L5-S1 facet-joint injection of cortisone. Dr Gassin recommended that the plaintiff control his pain with Tramadol SR, 200 milligrams, bd. The plaintiff was reviewed in March 2010, when he reported persistent, predominantly right-sided, low-back pain with some radiation down the legs.
30 In February 2011, a repeat right L3-L4-L5 medial branch radiofrequency was performed.
31 In May 2011, the plaintiff reported low-back pain, predominantly right sided, with referral mainly to the right leg, which was increased with lifting.
32 In June 2011, the plaintiff was reviewed, and a caudal epidural injection of cortisone was performed in August 2011.
33 It was Mr Gassin’s view the plaintiff would suffer persistent moderate low-back and leg pain, and mild to moderate disability for the foreseeable future.
Dr Fred Edwards
34 Dr Edwards, general practitioner, treated the plaintiff. His medical records dating back to May 2003 confirmed the plaintiff was a longstanding patient of his practice.
35 In February 2015, Dr Edwards diagnosed lower back pain and bilateral leg pain due to canal stenosis in the lumbar spine. He reported that the plaintiff was informed by Dr Vivian that he is likely to incur slow deterioration and, depending on his degree of disability, other options such as a neuromodulation device might be considered.
36 Dr Edwards said the plaintiff suffered from low-back pain since April 2005. He incurred a significant aggravation in August 2008 after pushing a large garden box.
37 Dr Edwards reported in May 2009, the plaintiff underwent right-sided L3-L5 medial branch blocks with radiofrequency denervation of the facet joints. He had a repeat procedure in 2010.
38 In 2013, the plaintiff had a caudal epidural injection.
39 In 2014, it was reasonable for the plaintiff’s pain to be controlled with a moderate amount of opiate medication, which was required long term.
40 Dr Edwards said the plaintiff will continue to suffer from canal stenosis, and has been advised that his condition is likely to deteriorate slowly. He said it was important that the plaintiff maintained good weight control, does not smoke and ensures the maximum core strength to his spine. He said the impact on the plaintiff’s life had been significant and severe. He based this upon a pain diary the plaintiff had maintained for a period of five weeks, detailing his pain and the impact it had upon his daily activities.
41 Dr Edwards said the plaintiff reported that his back pain has led to relationship and sexual problems.
42 Dr Edwards said the plaintiff will suffer flare-ups from time to time.
Dr Masiiwa Njawaya
43 In May 2013, Dr Masiiwa Njawaya, sports medicine practitioner, examined the plaintiff on referral from his general practitioner.
44 In December 2013, the plaintiff reported four to six weeks of relief following the caudal epidural performed in July 2013. His symptoms had returned to their previous level and he was taking Targin and Panadol.
45 Dr Njawaya recommended an MRI scan of the lumbar spine and, depending on the results, a referral to a neurosurgeon.
Mr John O’Brien
46 Mr O’Brien, orthopaedic surgeon, examined the plaintiff in May 2014 and February 2015 at the request of the plaintiff’s solicitor.
47 The report of May 2014 sets out a history. The plaintiff reported that he was moving office equipment at work in May 2004 when he experienced a sudden onset of low-back pain (the first injury). The pain persisted but he completed his duties. The following morning, he woke with extreme back pain radiating down the posterior aspect of the right thigh to the knee. He was off work for a week.
48 The severity of the pain slowly improved and the plaintiff returned to work. The pain was significant and he was referred to the Metro Spinal Clinic. Initially, he underwent medial branch blocks, which resulted in some symptomatic improvement. Some months later, he underwent radiofrequency denervation in the lumbar region, which assisted with the severity of the pain for approximately eighteen months. During this period, the plaintiff was aware of mild low-back pain, and continued with analgesic medication.
49 The plaintiff reported that the severity of his back pain slowly increased, with pain radiating into the left leg. He reported the severity of pain to be 5 out of 10 on the Visual Analogue Scale.
50 The plaintiff returned to the Metro Spinal Clinic and had a further radiofrequency denervation, which helped, but was not as effective as the original. The plaintiff reported he continued to experience constant low-back pain, for which he took Tramal. However, he continued with his normal duties.
51 The plaintiff reported that in August 2008, he was assisting a client build a raised garden bed when he experienced an episode of acute, severe, sharp low-back pain which radiated immediately into the left leg (the second injury). He was off work for a few days and prescribed analgesic medication. The severe pain did not respond to conservative treatment and he was referred to the Metro Spinal Clinic.
52 In about early 2009, the plaintiff underwent injections, which involved medial branch blocks. In addition, he underwent a facet-joint injection, but these injections were not of any significant benefit. He underwent radiofrequency denervation without any improvement in back pain.
53 In mid-2011, the plaintiff underwent an epidural injection, which provided him with a little symptomatic improvement; however, he was still taking medication, a combination of Targin and Panadol Osteo, to control pain.
54 The plaintiff underwent a further epidural injection without any symptomatic benefit. He was recently reviewed by the Metro Spinal Clinic and was informed that further injections would be of no further benefit. He tried a TENS machine, which did not assist. There was some discussion about neuromodulation.
55 The plaintiff described constant pain in his lower back, the severity of which is 3 to 4 out of 10 on the Visual Analogue Scale. He now experiences intermittent pain extending down the posterior aspect of both legs to the knees. His back pain is aggravated by prolonged sitting, standing, bending, lifting and driving. He has difficulty at night, with pain causing disturbance of his sleep. He gains a little relief from regularly changing his positions. Coughing and sneezing aggravates the pain. Further, the leg pain is noted, along with exacerbations of back pain, particularly after bending or pushing. Mr O’Brien reported the plaintiff’s treatment consisted of the use of Tramal analgesic medication and daily exercises.
56 Mr O’Brien said, following the first injury, the plaintiff experienced back pain with some thigh pain. He benefited from radiofrequency denervation but reported continuing pain.
57 In the 2008 incident, the problem was further aggravated by a work-related incident with ongoing back pain. Since the second injury, there have been a number of injections with some benefit described from an epidural injection. Despite the treatment, the plaintiff continues to report chronic back and leg pain.
58 In May 2014, Mr O’Brien said the plaintiff presented with chronic back and leg pain. There had been some symptomatic response to a number of injections which suggested the pain in the lumbar spine was multifactorial. This would suggest the underlying problem relates to symptomatic lumbar spondylosis which may be multilevel.
59 Mr O’Brien further said the history would suggest that employment is a significant contributing factor to the plaintiff’s current pathology.
60 Mr O’Brien regarded the clinical condition as stable. The plaintiff reported constant back pain. He required very long-term analgesic medication. Mr O’Brien accepted that conservative treatment was appropriate and any ongoing treatment would be directed to pain management with analgesic medication. He did not see any indication for further investigations or any form of invasive treatment. He expected that the plaintiff would continue with his employment.
61 In February 2015, the plaintiff reported to Mr O’Brien constant low-back pain, the severity of which was at 3 to 4 out of 10 on the Visual Analogue Scale. Pain was aggravated by bending, twisting, lifting, prolonged sitting and standing, and any jarring of his lumbar spine. It is also aggravated by coughing and sneezing. The plaintiff reported the back pain causes significant disturbance of his sleep. He reported he remained capable of normal activities of daily living; however, struggled with domestic tasks, including gardening, mowing the lawn and gathering firewood.
62 The plaintiff reported medication of Targin, one tablet twice a day, plus Panadol Osteo, six tablets per day. He underwent an exercise program daily.
63 Mr O’Brien noted that physical examination demonstrated a very definite restriction of lumbar movement with no evidence of any nerve root compromise or radiculopathy. He concluded that the plaintiff presented with chronic back and leg pain which appeared to relate to aggravation of lumbar spondylosis documented on previous investigations. Mr O’Brien said he considered that employment remains a significant contributing factor to the plaintiff’s symptomatic lumbar pathology. He thought the plaintiff would continue in his current employment despite persistent difficulties and the avoidance of obvious aggravating factors due to chronic back pain. He said the plaintiff described significant restrictions of physical activity due to chronic pain. He commented favourably upon the plaintiff’s motivation.
The Defendant’s medical evidence
Mr J Kendall Francis
64 In September 2011, Mr Francis, surgeon, medically examined the plaintiff at the request of the defendant’s insurer.
65 The plaintiff reported an initial onset of low-back pain, treated with radiofrequency denervation in 2005. He continued full work activity until the second injury in August 2008. He developed further low-back pain with right leg radiation occurring to knee level. Since that time, he has undergone radiofrequency denervation again, but with less success. After that procedure, he reported taking medication of Tramal, 200 milligrams, ever since. Six weeks prior to Mr Francis’ report, the plaintiff underwent a caudal epidural injection. Mr Francis said the CT scan of the plaintiff’s lumbosacral spine indicated the ongoing basis for his pain being due to the multilevel degenerative changes involving the facet joints and disc bulges, with a degree of foraminal and canal stenosis developing.
66 In addition to the caudal epidural injection, Mr Francis recommended an exercise regime incorporating exercises for the plaintiff’s back core. He recommended a regular exercise program, even gymnasium involvement, for a two to three-month period to assess whether these activities are preferred to repeated needle injections. Mr Francis recommended that when lifting at work, the plaintiff adopt well-prescribed precautionary back measures; namely lifting more with his knees than with his back, and avoiding set positions, overly excessive bending and lifting, pushing or pulling and any prolonged sitting or standing activities. In his opinion, the plaintiff would be advantaged by entering a self-conducted exercise or gymnasium program.
Associate Professor Anthony Buzzard
67 In February 2012, Professor Buzzard, surgeon, medically examined the plaintiff at the request of the defendant’s insurer.
68 Professor Buzzard said the plaintiff had a number of episodes of low-back problems, where the pain has radiated down his leg, which suggests the possibility of disc prolapse, although he noted there was no evidence of neurological problems. He thought the plaintiff’s back symptoms were due to the pathology in the low-back region. The imaging of his low-back region demonstrated fairly widespread low-back degenerative disease. He thought it reasonable that the plaintiff continue with appropriate medication and that he would benefit from an exercise program which involved strengthening the posterior muscles in the back and minimising further problems with his back.
69 Professor Buzzard thought the plaintiff could carry out his usual work.
Mr Michael J Dooley
70 Mr Dooley, orthopaedic surgeon, examined the plaintiff in November 2013, September 2014 and April 2015 at the request of the defendant’s solicitor.
71 Mr Dooley said the plaintiff had a degenerative disc disease of the lumbar spine which had been influenced by an accident at age twenty. Further, he believed the work-related episodes of 2004 and 2008 aggravated the underlying degenerative disc disease of the lumbar spine. He said the aggravations would account for the plaintiff’s initial acute low-back pain, and subsequent ongoing intermittent low-back pain and intermittent lower lumbar pain. He recommended the plaintiff undertake regular low-impact exercise and modify his activities. He said there was no indication to consider surgical intervention, and thought the plaintiff was fit to continue with his current position.
72 Mr Dooley accepted the plaintiff’s ongoing lumbar spine symptoms relate to work.
73 Mr Dooley said it was reasonable for the plaintiff to take analgesic medication and he thought his condition could be self-managed.
74 Mr Dooley said that any changes that occurred on the CT scanning between 2004 and 2011 relate to the natural evolution of disease of the lumbar spine. He did not believe the work-related aggravation of the underlying degenerative disc disease have resulted in any structural changes to the lumbar spine.
75 In September 2014, Mr Dooley said:
“I remain of the view that [in] the work-related episode Mr Crookston aggravated underlying degenerative disc disease of the low lumbar spine. Mr Crookston’s condition has remained stable in time. No orthopaedic treatment is required. It is important that Mr Crookston continues to undertake regular low impact exercise.”
76 Mr Dooley otherwise reiterated the view expressed in his earlier report. He described the plaintiff as sensible and a genuine historian and he did not believe that he exaggerated his symptoms.
77 In April 2015, Mr Dooley said:
“I remain of the view that Mr Crookston has aggravated underlying degenerative disc disease of the low lumbar spine in the course of his work. He has reported a constant background of aching type pain with at time exacerbations of pain.”
78 Mr Dooley again said the plaintiff was sensible and a genuine historian and there was no evidence that the plaintiff had an excessive psychological reaction to his situation.
Credit of the Plaintiff
79 The credit of the plaintiff was not in issue. The plaintiff answered questions directly. He made concessions.
80 The plaintiff presented as a hardworking man who was keen to work. This is what he told the Court, as well as his general practitioner. Mr O’Brien commented favourably upon the plaintiff’s motivation. He was described by Mr Dooley as “a sensible and genuine historian”. He said, “I do not believe he is exaggerating his symptoms”. I formed the view the plaintiff was a credible witness.
81 I formed the view that the plaintiff understated his case. I based that view on his presentation in the witness box, and the pain diary he maintained for five weeks, in which he detailed the level of pain and its effect upon his activities.
Analysis of the evidence
The 23 May 2004 injury – the first injury
82 Applying the template as set out by the Court of Appeal in AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz,[11] the first matter required is that I should identify each injury. It was accepted that the first injury on 23 May 2004 could be described as an aggravation of an underlying degenerative change in the spine; that is, an aggravation of an asymptomatic degeneration in the lumbar spine.
[11]Supra
83 The next step is to delineate the impairment consequences of the first injury. In doing this, I am particularly interested in what the medical witnesses who were treating the plaintiff reported at that time, including the medical records of the plaintiff’s general practitioner, and what the plaintiff was saying about his injury. I also refer to the plaintiff’s evidence in Court.
84 The plaintiff’s evidence was that on 23 May 2004, while at work, he attempted to manoeuvre a safe out from under the shelf and pull it towards him, when he experienced sudden, severe back pain. The pain continued and got worse, with pain and symptoms extending into both legs. He had never before experienced pain and symptoms like this. He sought treatment from his general practitioner, Dr Edwards, who arranged for the plaintiff to have a CT scan, which was performed on 8 July 2004. The CT scan concluded that there was central canal stenosis at L3-4 and L4-5 from a combination of factors. Narrowing of the lateral recess bilateral at both of these levels was seen, with potential for impingement of the transversing nerve roots. He was prescribed medication of Celebrex.
85 In October 2004, Dr Brian Lovell, from the Metro Spinal Clinic, noted that the plaintiff reported pain levels over the last few months at 3 to 4 out of 10 but some days it is in the background and he hardly notices it at all. Dr Lovell said the main problem was that it prevents the plaintiff from undertaking his formal duties at work and hence this tends to fall on other people, which he feels is “non-sustainable”.[12]
[12]Plaintiff’s Court Book (“PCB”) 76
86 Dr Lovell said, of the CT scan:
“It showed some disc changes particularly at L4/5 and L5/S1, some gas being observed as well. Some tendency towards spinal canal stenosis but not of great significance clinically. It is also consistent with clinical observations that there is no sign of nerve impingement. Clinically he has spinal segmental referred pain and possibly this may also include his sacroiliac joint.”[13]
[13]PCB 77
87 Dr Lovell administered paravertebral injections on the right side over the L5‑S1 zygapophyseal joint area, as well as into the upper sacroiliac joint interosseous ligament. Post-injection, the plaintiff experienced almost complete blocking of his pain.
88 On 30 November 2004, Dr Lovell reported to the plaintiff’s general practitioner that, after the initial injections, the plaintiff had a good first week, but gradually reverted to his previous level of pain. He said there had been no reoccurrence, except for one day recently, of any groin-related pain. He reported, when examined, that the plaintiff’s pain level was 2 out of 10. Dr Lovell said that as the plaintiff’s pain level is normally 4 to 5 out of 10, he had sought authority to undertake some medial branch blocks the following week.
89 The plaintiff continued to experience ongoing back pain with pain into both legs, worse in the right leg. On 7 December 2004, Dr Verrills administered a further medial branch block. On 8 April 2005, a lumbar radiofrequency neurotomy was administered.
90 The plaintiff’s evidence was that these blocks provided significant improvement in the pain and symptoms, but the pain and symptoms never went away completely. He continued to experience ongoing back pain but was able to cope with medication and continued at work. He worked full time.
91 The plaintiff’s evidence was that prior to the second injury, he required medication of Naprosyn from time to time and took Panadol for flare-ups.
92 In his second affidavit, the plaintiff deposed that despite investigations and treatments during 2004 and 2005, his back never fully resolved. Frequently, he had aching, discomfort and pain in his back which, from time to time, would be made worse by activities. At times, when he had a flare-up of back pain, the pain could be severe and radiate down both his right and left leg. Prior to the second injury, the problems he had with his back since May 2004 seemed to settle down.
93 The plaintiff’s general practitioner records confirm that he was prescribed Celebrex, and in August 2004, he reported a flare-up of low-back pain and was prescribed Panadeine Forte. He attended physiotherapy and was expected to be fit for normal duties by 3 September 2004. He attended on 8 September 2004 and sought an extension of his time off work until 14 September 2004, and was provided with a further prescription of Panadeine Forte.
94 In November 2004, the general practitioner gave the plaintiff a sample of Mobic. Thereafter, he attended his general practitioner complaining of other issues, and was prescribed medication of Panadeine Forte, Voltaren (which is recorded as being required for arthritic pain), and Celebrex. His last formal attendance for low-back pain was on 23 May 2006, when he was prescribed Voltaren and Panadeine Forte.
95 In June 2006, the plaintiff attended his general practitioner for problems relating to swelling and pain in both his knees. The general practitioner recorded “reason for visit osteoarthritis” and prescribed Naprosyn. Naprosyn was prescribed in October 2006 and March 2007. Another anti-inflammatory, Proxen, was added in July 2007, but no reason was recorded. In October 2007, the reason recorded for the visit was “osteoarthritis” and Brufen was prescribed. In May 2008, the reason for the visit was “pain in the joints”. Mobic was prescribed.
96 I accept that after May 2006, the plaintiff did not specifically consult his general practitioner about his low-back pain. The plaintiff’s evidence was that he mentioned it to his general practitioner on occasions. Given my findings as to the plaintiff’s credit, I accept his evidence on this point. The general practitioner records confirm that between May 2006 and August 2008, the plaintiff was being treated for a range of conditions, including osteoarthritis and pains in the joints. There was no specific mention of low-back pain.
97 The plaintiff agreed that the medication he was prescribed for his knees assisted his back as well. Given the plaintiff was taking anti-inflammatory medication, I accept that it may have assisted the pain in his back, albeit being prescribed for other conditions.
98 The plaintiff reported to Mr O’Brien in May 2014 that following his first injury, he underwent medial branch blocks, which resulted in a little symptomatic improvement. As a consequence, some months later, he underwent a radiofrequency denervation in the lumbar region. This definitely helped with the severity of the pain for approximately eighteen months. The plaintiff reported to Dr Vivian and Dr Gassin he received relief for two years. As they were treating the plaintiff at the time, I accept that that plaintiff more likely received relief for a period of two years. During this time, he was aware of mild low-back pain and was required to continue with analgesic medication.
99 Counsel for the plaintiff submitted that the plaintiff was, from time to time, on medication prior to the second injury, and that he had ongoing back pain.[14]
[14]Transcript (“T”) 90, L24-26
100 In March 2015, the plaintiff reported to Dr Gill that, following the first injury, he suffered back pain and sciatica in his right leg. His condition responded well for approximately two years to treatment with radiofrequency denervation procedures. He required analgesic medication. He continued with his work.
101 The plaintiff’s evidence in cross-examination was that he could not say whether he was prescribed Naprosyn in March 2007 for his knee or back or both.[15] He agreed he had some ongoing back symptoms, some pain, up until the second injury.[16] He agreed that he needed medication for his back leading up to the second injury.[17] He agreed before the second injury, he had some flare-ups of a severe kind, and his back was made worse with activity.[18] This is not supported by the medical records of the general practitioner. I can infer that he was not reporting this to his general practitioner. He thought he took Panadol for flare-ups and things like that.[19]
[15]T22, L14-22
[16]T22, L27-31
[17]T25
[18]T26, L25-31
[19]T27, L3-7
102 Given the plaintiff’s evidence, I accept that the medication he was prescribed for the first low-back injury is at the low end of the scale.
103 The plaintiff thought, after the first injury, he had a couple of weeks off work.[20] I accept that by August 2008, before the second injury, the plaintiff had low back pain, which had basically settled down,[21] with some flare-ups for which he took Panadol, and his back was made worse with activity. He was able to continue to work. I do not find that those consequences satisfied the statutory test of serious injury at that time. I accept that those consequences are at the very low end of the scale.
[20]T27, L11-13
[21]PCB 16 at paragraph [10]
The August 2008 injury – the second injury
104 The second injury was variously described as:
· A significant aggravation of the low-back pain (Dr Vivian).
· A further aggravation of the problem with ongoing back pain with initial left leg pain but subsequent bilateral posterior thigh pain (Mr O’Brien).[22]
[22]PCB 49
· A significant aggravation in August 2008 of low-back pain diagnosed as low-back pain and bilateral leg pain due to canal stenosis in the lumbar spine (Dr Edwards).[23]
[23]PCB 52
· Right sided low-back pain with a significant aggravation on 8 August 2008 (Dr Gassin).[24]
· The work-related episode of 2008 aggravated the underlying degenerative disc disease of the lumbar spine (Mr M Dooley).[25]
[24]PCB 70
[25]DCB 19
105 On the basis of the above-mentioned views, I accept the medical evidence is that the second injury was a significant aggravation of the low-back pain.
Consequences of the second injury
106 It is now necessary for me to consider the evidence of the impairment consequences of the second injury.
107 Counsel for the defendant conceded that the evidence establishes there has been an increased level of symptoms, an increased need for, and actual receipt of treatment, and an increased level of consequences. The defendant’s submission was that the evidence does not enable a distillation of the real difference other than a generalised situation.
Pain
108 The plaintiff’s evidence was that after the second injury, the pain and symptoms he was experiencing continued and worsened.[26] By 2009, he was suffering fluctuating back pain. The ongoing pain and problems he experienced with his back and right leg have continued and taken a chronic course. He has continued to experience ongoing fluctuating back pain. The severity of the back pain and pain into his legs is unpredictable and, at times, is acute and disabling. He is never free of back pain. The pain radiates into the buttocks and, from time to time, into the back of both legs, especially the right leg. The plaintiff’s evidence was in March and April 2009, he underwent medial branch block treatments, which failed to provide any sustained improvement in pain symptoms.
[26]PCB 9, paragraph 22; PCB 16, paragraph 10
109 The plaintiff currently experiences sudden and acute flare-ups of back pain for reasons he cannot point to. For example unguarded movements such as coughing or sneezing, or sudden movements, will make the back pain and leg pain much worse.
110 Due to the unpredictability of episodes of back pain, the plaintiff is guarded in the movement of his back. He is cautious when bending, twisting, stretching or performing tasks involving lifting, carrying and manhandling moderate weights. Certain activities make his pain worse. For example standing or sitting for too long, walking for long periods or tasks or activities which require him to flex, to bend or to twist his back. These activities cause the pain to become much worse. As a result, his day-to-day activities are very limited.
111 The plaintiff needs to change his position and posture frequently to ease aching soreness and pain. He has pain across the back at about the beltline. He has pain going into both buttocks and into the back of both legs, generally worse in the right leg and thigh to the knee. The pain is made worse by driving or travelling as a passenger. For trips up to about one to two hours, he needs to stop, get out of the car and move about to ease aching soreness and pain in his back and legs.
112 The plaintiff experiences episodes of sciatica into the right and left legs. These episodes are unpredictable, and occur without warning.
113 The plaintiff reported pain to the medical witnesses he saw.
114 Mr O’Brien said the plaintiff continues to report chronic back and leg pain. The plaintiff described constant pain in his lower back, the severity of which is 3 to 4 out of 10 on the Visual Analogue Scale. He experiences intermittent pain extending down the posterior aspect of both legs to the knees. His pain is aggravated by prolonged standing, sitting, bending, lifting and driving. Coughing and sneezing aggravates the pain.
115 Mr O’Brien said the plaintiff describes significant restrictions of physical activity due to chronic pain, treatment and medication.
116 Mr Dooley reported that the plaintiff has “a constant background aching type pain with at times exacerbations of pain”.
117 Dr Edwards, general practitioner, noted that the plaintiff’s pain will flare from time to time, he is likely to suffer from this condition for many years and will require interventions periodically. He reported that Dr Vivian, pain medicine specialist, considered that the plaintiff’s pain would be controlled with a moderate amount of opiate medication, which would be required in the long- term.
118 I accept that currently, the plaintiff experiences constant levels of pain which are at the high end of the scale and this affects him constantly. Throughout 2014, the general practitioner’s notes record an increase in the complaint of flare-ups. Further, an examination of the plaintiff’s 2015 pain diary discloses constant pain, on a daily basis performing daily activities of getting out of bed, bending over to pick up articles, getting out of a chair, getting up from a couch, moving a ladder and stretching to change a light bulb. These are examples of the activities the plaintiff recorded experiencing pain in the back as a level of 9 out of 10.
Treatment
119 On 29 May 2009, the plaintiff underwent right-sided L3-L5 medial branch blocks with radiofrequency denervation of the facet joints, which failed to provide any sustained improvement.
120 On 8 September 2009, he underwent an L5-S1 facet joint injection of cortisone which provided five days of relief. He was prescribed Tramadol SR (200 milligrams) and in 2011, he underwent a further radiofrequency denervation neurotomy which provided short-term relief.
121 On 12 August 2011, he underwent an epidural injection of cortisone, which provided temporary improvement in back pain and pain in his legs. He continued to use medications of Tramadol and Norspan patches.
122 The plaintiff’s evidence was that Dr Vivian informed him that he was unlikely to gain any significant improvement from further injections, either epidurals or radiofrequency neurotomies. He was informed he was unlikely to be assisted by surgery and that he should continue with conservative treatment measures, being exercise, regular use of medications and to modify his activities so as to avoid provoking episodes of acute back pain and leg pain and symptoms. He was informed by Dr Vivian he was likely to need the use of medications indefinitely for the foreseeable future. He is currently being treated by his general practitioner, Dr Edwards. The plaintiff undertakes an exercise regime which he conducts daily.
123 Mr O’Brien said the plaintiff’s ongoing treatment is conservative and relates to pain management with appropriate analgesic medication. He did not consider there were any current indications for further investigations or invasive treatment. Mr Dooley agreed. Mr O’Brien said the plaintiff’s prognosis was poor. He will continue to experience chronic back pain. This is consistent with the view expressed by Dr Vivian.
124 Dr Edwards said the plaintiff has been informed that he is likely to incur slow deterioration in his situation. It was impossible to state whether his condition has fully stabilised. Mr Vivian suggested he may require a neuro-modulation device and suggested that an operation to decompress the right canal would make a different.
Medication
125 The plaintiff uses medication as prescribed and is currently taking Targin, 20 milligrams, two tablets daily, and Panadol Osteo, up to six tablets daily. He is totally reliant on medication to keep the pain at bay. He has to be wary about alcoholic beverages due to his medication.
126 The plaintiff’s evidence was that since the second incident, he has been prescribed medication including Tramal, Brufen, OxyContin, Panadol Osteo, Norspan patches and Targin.
127 The general practitioner’s medical records confirm that initially the plaintiff was prescribed Tramal, 50 milligrams, one to two tablets, and Voltaren. Voltaren was replaced by Brufen, 400 milligrams, one tablet daily. Thereafter, the plaintiff was prescribed Brufen and Tramal. In January 2009, the dosage of Tramal SR was increased to 150 milligrams, one tablet, and increased to 200 milligrams in March 2010. In December 2012, OxyContin was prescribed for a short period after the plaintiff underwent a knee replacement. By April 2012, Brufen was ceased and the plaintiff was prescribed Tramal SR for knee and back pain. In May 2012, the plaintiff reported a flare-up of back pain and Panadol Osteo, 665 milligrams, one to two tablets, was commenced. In February 2013, Norspan patch, 10 milligrams, once weekly, was commenced. In July 2013, due to a rash, the Norspan patch ceased and was replaced with Targin, 10 milligrams, one tablet.
128 From July 2013, the plaintiff was consulting his general practitioner fortnightly. By December 2013, the plaintiff was reporting the pain management was inadequate and the dose of Targin was increased to 20 milligrams. Throughout 2014, the records refer to increasing flare-ups of back pain. Counsel for the defendant submitted that the plaintiff reported pain levels of 3 to 4 out of 10 with flare-ups. I note that the general practitioner records indicate an increase in the flare-ups.
129 In September 2011, Mr Kendall Francis said the plaintiff is “still requiring considerable analgesia”. At that time, the plaintiff was prescribed Tramal, 200 milligrams. Mr Francis also noted that the medication did not block the pain.
130 Taking into account all the evidence, I accept that medication was prescribed for back pain, and a significant level would have been prescribed regardless of the plaintiff’s other health concerns.
131 The plaintiff is currently taking opiate medication which has been increased to cope with the back pain. The medication is at the high end of the scale. I further note the level of medication has increased since 2008. There is no suggestion that it will cease. In fact, the contrary. The evidence is that the plaintiff will require long-term narcotic medication. The level of medication is an indication of the extent of the plaintiff’s pain. This is a significant consequence for a man aged fifty-eight. There was no suggestion by medical witnesses that the plaintiff was likely to improve. In fact, Dr Vivian and the general practitioner were not optimistic as to his future. None of the medical witnesses criticised the plaintiff’s level of medication.
Sleep
132 The plaintiff reported difficulties with sleep which were confirmed by the clinical notes of the general practitioner. The plaintiff deposed that emotionally he has been affected by the chronic ongoing and often unpredictable back pain and pain in his legs. His general practitioner referred him to Kathleen Kneebone for counselling to cope with sleep disturbance, depression and lack of self-esteem. The plaintiff reported to Mr O’Brien that the back pain causes significant disturbance of sleep.
133 I accept that as a consequences of the second injury the plaintiff’s sleep has been affected.
Domestic activities
134 The plaintiff’s evidence was that domestic and maintenance tasks around the house are difficult for him. He struggles to complete domestic tasks which involve bending, flexing and stretching his back or which require him to stoop, and get down low. He struggles to complete gardening and lawn mowing tasks. He now uses a self-propelled lawn mower, which has reduced the level of pain but not eliminated the pain. Bending, stooping forward to remove a fully loaded catcher from the rear of the lawn mower is awkward and difficult and causes back pain. He can no longer collect cut and load firewood into a trailer and unload the trailer. He now has to purchase loads of firewood which is expensive. He enjoyed building a deck at the back of his house. It needs finishing off and extending. There is no way that he could attempt such a task. He now has to employ someone to complete a task that he would have done. He was looking forward to an active retirement, but now sees that he will have to be very careful about the activities he can undertake so as not aggravate the back pain. He sees a retirement with pain.
135 The plaintiff’s evidence was that even walking his dog is restricted by his back pain. He can no longer walk the distances he walked in the past.
136 The plaintiff’s evidence was that simple everyday tasks can cause pain. The plaintiff maintained a pain diary at the request of his general practitioner. The diary discloses that ordinary day to day activities are affected by significant pain.
137 I accept that these are consequences which I can take into account.
Social activities
138 The plaintiff’s evidence was that social activities are restricted. He is not as enthusiastic about events such as birthdays and Christmas holidays, as the general pain takes away the enjoyment of these activities.
139 The plaintiff’s pain diary shows that as he cannot stand for extended periods. He needs to sit or change positions and this affects his ability to enjoy himself at social events such as weddings, Christmas carol events and meetings. Similarly, if he sits for too long, he needs to change positions. For example if he attends the movies, he becomes fidgety and is a nuisance to others.
140 The plaintiff’s evidence was that he can no longer jet ski as the bumpy ride affects his back.
141 I accept that the plaintiff’s social activities have been affected by the pain the plaintiff has suffered. This is a consequence I can take into account.
Relationships
142 The plaintiff’s evidence is that his family relationships are affected by his pain. He cannot pick up his grandchildren because of the pain in his back. He said the grandchildren do not understand why their grandfather will not pick them up.
143 Further, his relationship with his wife has been placed under considerable strain because of the ongoing problems with his back. His wife is understanding and supportive but his changes in mood and his behaviour has impacted their relationship. Sexual activity and intimacy is difficult for the plaintiff because it causes pain. This has affected their relationship and remains disappointing to the plaintiff. The plaintiff reported sexual and intimacy difficulties to his general practitioner.
144 I accept that the effect of the pain upon his family relationships is a significant consequence which I can take into account.
Work
145 The plaintiff is employed as a disability worker, working 59 hours per fortnight and up to 74 hours per fortnight as he accepts extra work. He undertakes residential care of five clients who are intellectually and physically disabled. Despite the constant pain he continues the work.
146 Mr O’Brien said:
“The patient does report being able to continue with his employment, albeit with some difficulty and the obvious avoidance of aggravating factors. I would consider, given the patient’s motivation, that he will continue in this current employment despite persistent difficulties due to chronic back pain.”
147 Dr Edwards said:
“He works as a disability service worker and has managed to keep working despite many years of pain and difficulty.”
148 Dr Gill reported:
“Although continuing to have pain and being impaired in his physical functioning, he has continued to work and although struggling to do so, he is hoping to maintain his employment for as long as possible.”
149 The plaintiff’s evidence was that it was difficult to obtain people to perform his work. If he can, he accepts extra hours of work. Further, the plaintiff worries how much longer he will be able to continue to work, so he attempts to work as much as possible, which leads to family problems and health issues. I accept the plaintiff has continued to work, and the evidence is that the plaintiff is highly motivated to continue to work. However, he struggles with the work, and does so with the assistance of medication. He is concerned as to how much longer he can continue working.
150 The fact that the plaintiff is able to work full time does not preclude a finding of serious injury. I adopt what Ashley JA said in Stijepic v One Force Group Pty Ltd:[27]
“[I]t is plain that Sumbul is not authority for the proposition that a return to alternative work is somehow determinative against a worker on the issue of pain and suffering consequences. The most that can be said, and all we take Chernov JA to have been saying, is that if a worker successfully returns to alternative duties it will tend, in the absence of other relevant evidence, against a conclusion that the pain and suffering consequences of the compensable injuries are serious. But, as always, the evidence as a whole must be considered.”
[27] Supra
151 In this case, while the plaintiff has been in full-time work, he has continued to experience constant pain in both his back and intermittent pain into his legs for which he takes significant medication. The plaintiff’s employment cannot be relied upon – as the defendant sought to do – as alone providing evidence that the pain and suffering consequences of the plaintiff’s impairment have not met the threshold.
152 A further submission made by the defendant was that the plaintiff is required, if necessary, to be able to perform, as part of his employment, cardio pulmonary resuscitation (CPR). This is indicative of the plaintiff having a functioning back. I accept this may be part of the plaintiff’s job description. There was no medical evidence to indicate whether or not his back would be affected by performing CPR. There was no evidence to indicate how often he was required to perform CPR. Accordingly, I reject this submission.
153 I accept that as a consequence of his second injury, the plaintiff continues to work, and struggles to do so. He is unsure how much longer he will be able to continue working. This is a significant consequence for a highly motivated man such as this particular plaintiff.
Stoicism
154 It is my view that the plaintiff presented as stoical. He was not given to exaggeration and gave his evidence in a most uncomplaining way. I took the view that he was prepared to endure a fair amount of pain as he went about his work and everyday activities. I based my impression on the way he presented in the witness box, the evidence as recorded in his pain diary, his attitude and motivation to continue working, and the comments made by Mr Dooley, and Mr O’Brien, who said:
“I would consider given the plaintiff’s motivation that he will continue in his current employment despite persistent difficulties due to chronic back pain.”
155 The plaintiff referred to the importance of his work. He said he was keen to work and accept additional hours now, because he did not know how long he could work because of the pain.
156 In the words of Nettle J in Dwyer v Calco Timbers Pty Ltd (No 2):[28]
“But it would be unfortunate, and in my view wrongheaded, if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”
[28][2008] VSCA 260 at paragraph [3], and cited with approval in Sutton v Laminex Group Pty Ltd [2011] VSCA 52 at paragraph [80]
157 The plaintiff’s evidence was that he underwent a right total knee replacement in December 2011. The medical records confirm that he was reporting pain in his right knee in September 2010. An arthroscopy was performed in October 2010. In December 2011, the plaintiff reported chronic knee pain. In cross-examination, the plaintiff said he took no time off work for the knee before the operation,[29] this was despite claims of knee pain and subsequent surgery. I accept this is another example of the plaintiff’s stoicism.
[29]T39
158 I accept the injury suffered by a stoical plaintiff is not to be viewed any less seriously merely because he manages to remain more active than might have been expected given the level of pain.
Finding in relation to serious injury
159 In summary, the consequences of the second injury are chronic back and leg pain. The pain in the lower back is constant, which has required medication to the current level of opioid medication at a significant level, the severity of which is 3 to 4 out of 10 on the Visual Analogue Scale when medicated. He is totally reliant on medication. The plaintiff experiences intermittent pain, extending down the posterior aspect of both legs to the knees. His pain is aggravated by prolonged standing, sitting, bending, lifting and driving. Coughing and sneezing aggravated the pain. He is increasingly being subjected to flare ups of pain.
160 The pain affects the plaintiff’s sleep, and his domestic and maintenance activities. He can no longer engage in home maintenance because of the level of pain. He looked forward to an active retirement but now sees a retirement with pain. His relationships with family have been affected. He cannot pick up his grandchildren to interact, and his relationship with his wife has been affected. Whilst he continues to work, he does so with difficulty. This was commented upon by Mr O’Brien and Dr Edwards.
161 I accept that the consequences the plaintiff described from the second injury, which were supported by the medical witnesses, are at least at the very considerable end of the scale. No medical witness suggested that his complaints were not genuine, nor that the medication he is now taking is inappropriate. The medical records of the general practitioner suggest that the complaints of pain, and his treatment, are increasing. No doctor suggested that the plaintiff would improve. There seems to be little that can be offered to this plaintiff, other than conservative treatment.
162 In this case, I must determine whether the second injury is a “serious injury” under the Act. That requires me to make a comparison between the plaintiff’s condition before the second injury, and his condition after the second injury and make an assessment of the additional impairment. I am not permitted to accumulate the consequences of both injuries. The second injury must be a “serious injury” in its own right, rather than in combination with the first injury.
163 Prior to the second injury, I concluded that the consequences of the first injury to the plaintiff were:
· Low-back pain which has basically settled down, with some flare-ups, for which he took Panadol;
· His back was made worse with activity;
· He continued working;
· He had limited treatment, and the anti-inflammatory medication he took was for other medical conditions, but may have assisted the back.
164 I concluded that those consequences were at the very low end of the scale. I have already listed the consequences of the second injury.
165 In making a comparison between the plaintiff’s condition before the second injury and his condition after the second injury, I find that:
(a) The level of pain in the plaintiff’s back is now constant at a level of 3 to 4 out of 10 while medicated, with intermittent and unpredictable pain extending down to the posterior aspect of both legs to the knees. He suffers increasing flare ups which he recorded at 9 out of 10 when maintaining his pain diary. This is a significantly greater consequence than the pain he reported prior to the second injury.
(b) The level of medication the plaintiff takes has been increasing over the period since the second injury. He now takes significant levels of Targin, a narcotic medication, which requires fortnightly supervision by his general practitioner. In addition, he takes up to six Panadol Osteo per day. There is no suggestion that the medication will be reduced or is excessive. The suggestion is that his pain will continue and worsen and that he will continue with his current medication regime. In comparison with his medication before the second injury, the level of medication is now very significant.
(c) The level of treatment has increased substantially since the second injury. Prior to the second injury, the plaintiff received substantial benefit from radiofrequency neurotomies. Subsequent to the second injury, radiofrequency neurotomies have provided limited relief. The plaintiff consults his general practitioner fortnightly for his supervision and medication. He undertakes a daily exercise regime. In comparison with his treatment immediately before the second injury, he is now requiring greater treatment, and now finds the treatment he had before the second injury is no longer effective.
(d) The plaintiff now reports his sleep is affected and he has suffered loss of self-esteem, and he has received treatment for both. This is an additional consequence which was not referred to prior to the second injury. It is a consequence which I can take into account.
(e) The plaintiff’s domestic and daily living activities have been affected as a result of the second injury to a substantial level. The plaintiff did not address these consequences prior to the second injury. Given the increased level of pain and the increased level of medication, I can infer that these consequences are additional and were not consequences which affected the plaintiff prior to the second injury. It was implicit in the order and flow of the evidence given by the plaintiff, that these were consequences after the second injury.
(f) The same applies to the consequences relating to the plaintiff’s social activities, relationships and, to a large extent, his work.
166 In reaching my conclusion in respect of the second injury, I have not accumulated the consequences of the two injuries. I have compared the consequences before and after the second injury, and then made an assessment of the additional impairment consequences arising from the second injury alone.
167 Taking into account the additional impairment consequences arising from the second injury alone, I am satisfied that the consequences of the second injury are such that I find they are “more than significant or marked” and are “at least very considerable”. I accept that the plaintiff has satisfied the statutory test for pain and suffering as a result of the second injury.
Is the first injury a “serious injury”?
168 I must now consider whether the plaintiff can rely on the pain and suffering consequences that existed after the second injury as being consequences of the first injury.
169 The plaintiff must prove that he was rendered vulnerable by the first injury to the consequences that became apparent after the second injury. There was no medical evidence to support this. None of the medical witnesses discussed this issue. There was no medical evidence that the residual adversity from the first accident rendered the plaintiff vulnerable to the second injury.
170 In the alternative, the plaintiff must prove that the additional effects from the first injury that became manifest after the second injury, when taken into account in isolation from the second injury, produced a serious impairment to the lumbar spine as a consequence of the first injury. Again, there was no medical evidence upon which I could rely to support such a finding. The plaintiff’s evidence was that his back was not recovered after the first injury. Mr O’Brien’s evidence said both incidents have contributed to his problem. Further, the events giving rise to the injuries are two discrete events which are independent of each other in term of their consequences. There was no medical or other evidence from which I can infer that the current level of symptoms are elevated due to the first accident.
171 For the above reasons, I am not satisfied that the plaintiff suffered a “serious injury” in accordance with the Act in relation to the first injury on 28 May 2004. I am satisfied that the plaintiff has established that the injury he suffered on 8 August 2008, being the second injury, is a “serious injury” within the meaning of the Act.
172 Accordingly, I grant leave to the plaintiff to issue common law proceedings for pain and suffering damages arising out of the second injury on 8 August 2008.
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